42 BAY VIEW AVENUE - ZBA r7o=L—
�m
42 BAY VIEw "ENEU
ROBERT & EIAINE COOK
Qi-
CARMEN A. FRATTAROU AND ASSOCIATES
ATrORNEYS AM COUNSELORS AT LAW
THE METcom Buu.DiNG
76 LAFAY=STREET
SALEM,MASSACHUSEM 01970
CARMEN A. FRATTARou TELEPHONE
(508) 740-9501
WniiAm F.MAR'nN FACS]MME
OF COLIMM (508) 740-9692
December 5, 1997
VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED
Mr. Gary M. Barrett Ms. Nina V. Cohen
7 Patton Road 22 Chestnut Street
Salem, MA 01970 Salem, MA 01970
Mr. Albert C. Hill Mr. Joseph Ywuc
4 Larkin Lane 86 Ord Street
Salem, MA 01970 Salem, MA 01970
Mr. Richard Dionne Mr. Arthur LaBrecque
23 Gardner Street 11 Hazel Street
Salem, MA 01970 Salem, MA 01970
Mr. Paul Valaskatgis Mr. Robert J. Cook
24 Gables Circle 42 Bayview Avenue
Salem, MA 01970 Salem, MA 01970
Mrs. Elaine E. Cook
42 Bayview Avenue
Salem, MA 01970
RE: Kardenetz, et. al. v. Cook, et. al.
Dear Members of the Salem Zoning Board, Robert Cook and Elaine
Cook:
In accordance with General Laws Chapter 40A § 17 and/or the
applicable Zoning Rules and Regulations of the City of Salem,
notice is hereby given to yo f the ab ve zoning appeal, filed
in Essex Superior Court Dec, 97. copy of the
Complaint and Civil Action U!ioirr :� et is tached.
r t 1 urs
en rattar
=oli
:jaz
Enclosure
Cc: Mr. & Mrs. George Kardenetz
SEE INSTRUCTIONS ON BACK OF THIS FORM
PLEASE TYPE OR PRINT EXCEPT WHERE SIGNATURE IS REQUIRED
Trial Court of Massachusetts L\ DOCKET NUMBER
CIVIL ACTION COVER SHEET SUPERIOR COURT DEPARTMENT
ESSEX Division
PLAINTIFF(S) :1..� J't- Q J ;DEEFNDANT(SI�ROBERT J. COOK, ELAINE E. COOK
GARY M. BARRETT, NINA V. COHEN, ALBERT C'
IL
CAROL A. KARDENETZ, GEORGE KARDENETZ HIL , JOSEPH YWUC, RICHARD E. DIONNE, ARiHUR
7 AUDRVnTTV PATIT ITAT AOVAII�Q
IMMKO(s)(if k�n), "iTy Or, SALEM
ATTORNEY(S)FIRM NAME,ADDRESS AND TEL
CARMEN A. FRATTAROLI
7-,87�7.409501:
76 LAFAYETTE STREET
BoA%1RbaP&9U;9s # (RequiredY'7')177960
ORIGII
OESIGNATION �7;-ItL,;1 br!S �f;08;
- I- . '— I ; --'. , peor
fXplace an In,�Qqq box .10
-P!i;et, bnr '))�a -2b-cl'.-�'
,c �,2r, scE -�t��A igOcci
1. F01;fOriginq1 Complaint, ieal 62311%�-,97 Me, ,09? '0
El 4 F04'District Ct. Apo
0 2: F,02-.Removab-�o Su B 5i F05-'Rdkf"ied 4fter Rescript; Rblrdf;rO(
p..'Pt.-c,23j, s. 104 (F)
0 3. IFD3, Retransfer-,tA,Sup:.,Ct. c.,231, s. 102C (X)
judgment/order (Mass. R Civ. P. 6di
0 6. E10 Summary process appeal (X)__
TYPE�OF ACTIONAND� TRACK-DESIGNATION (See�Revers6 Side) .�
...........
TYPE I;f,ACTION (specify) 4 187His A JURY C E?
CODE, TRACK AS
5 7-o
1. PLEASE iOIVE A CONCISE,STATEMENT OF THE FACTS:'Miiqu�lrid In' ALL Ty'pes of Actions)
THIS-IS ANAPPEAL, 04 GRANT OF VARIANCE BY THK-SALEM -ZONING BOARD.
3
2. IN A CONTRACT ACTION (CODE A) OR A TORT ACTION (CODE 8) STATE, WITH PAFrrICULARITY -
MONEY DAMAGES WHICH WOULD WARRANT A REASONABLE LIKELIHOOD THAT RECOVERY
�.,WOULD EXCEED.
*OAR- AC�T,�-A ��O 3qYT �00 3001-
N/A ----------
e 9 J UR T 9 U q ;1�3 r�',
StA.' .9111"i!I'Jq 3HT 30 Y U0
nn
3 PLtAsE00ekTIFV,`9V CA§E:,N0MbEW; NAME M6 1) -MOCANY-RELATM-A&IONVEN'DING
IN THE SUPERIOR COURT DEPARTMENT.
-��F m 6L �ne�i ell 3v921-- "r. C�2 TMAO;2:130 31iT 1.0 Y TUC,
-3,V�r q cp's 31 n, s -a�li 9ii, 'VEM le-�muoo -2:f4, lo ed,
SIGNATURE OF ATVCRNEY OF NTIFF
I/DATE
OFFICE USE ONLY DO NOT WRITE BELOW THIS LINE
DISPOSITION RECEA/ED
A. Judgment EnteredAIAJqMOO H3A3 HTIW 03JI1 38 T8)fNd'J5dbbfiW0feiw-IT3A JA n. A
AY:
0 1. Before jury trial or non-jury hearing D 6.Transferred to District CATE
El 2. During jury trial or non-jury hearing Court under G.L.c.231,
0 3. After jutV-VbTdIaU33A 0HA YJHDUOROHT T33HB RZ)VO&JOW. 3I73-IqM03 OT t AMARION ENTERED
0 4. After court finding HOITOA 8iHT qO JA2200000DWRA YAM BY:
I -- -
CARMEN A. FRATTAROU AND ASSOCIATES
ATTORNEYS AM COUNSELORS AT LAW
THE METoom BUILDING
76 LAFAYmE STREEr
SALEm,MASSACHUSETTS 01970
CARmEN A.FRATrARou TELEPHONE
(508) 744D.9501
WILLIAM F.MARTIN FAcsnALLE
OF COUMU (508) 740-9692
December 5, 1997
Clerk' s Office
Essex Superior Court
34 Federal Street
Salem, MA 01970
RE: Kardenetz, et. al . V. Cook, et. al .
Essex Superior Court
Dear Sir/Madam:
Enclosed please find for filing and docketing the
following:
1 . Complaint;
2 . Civil Action Cover Sheet; and
3 . Check in the amount of One Hundred Eighty
Five ($ 185. 00) Dollars .
Thank you.
LVery tr y yo rs,
Carmen A rattaroli
:jaz
Cc: Mr. & Mrs . George Kardenetz
City clerk, City of Salem
Mr. Gary M. Barrett .
Ms. Nina V. Cohen
Mr. Albert C. Hill
Mr. Joseph Ywuc
Mr. Richard E. Dionne
Mr. Arthur LaBrecque
Mr. Paul Valaskatgis
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss SUPERIOR COURT
DOCKET NO.
CAROL A. KARDENETZ, and CIT 235L4
GEORGE KARDENETZ,
Plaintiffs
V.
ROBERT J. COOK, ELAINE E. COOK, COMPLAINT
GARY -M BARRETT, NINA V. COHEN,
AT RT C. HILL, JOSEPH YWUC,
RICHARD E. DIONNE, ARTHUR LABRECQUE,
PAUL VALASKATGIS, and CITY OF SALEM,
Defendants
I. INTRODUCTION
This is an action brought by an abutting land owner, appealing
the grant of a Variance by the Zoning Board of the City of Salem.
This appeal seeks alternative relief and is brought as follows:
A. Pursuant to Massachusetts General Laws Chapter 40A § 17 .
Plaintiffs are aggrieved parties, and hereby Appeal a certain
decision of the City of Salem Zoning Board of Appeals dated
December 3, 1997, which granted the application of a Variance to
the Defendants, Robert J. Cook and Elaine C. Cook.
B. Pursuant to Massachusetts General Laws Chapter 249 § 4
Plaintiffs seek relief in the nature of Certiorari, as may be
necessary to appeal and overturn a decision of the City of Salem
Zoning Board, dated December 3, 1997, granting a Variance or other
relief to the Defendants, Robert J. and Elaine C. Cook.
II. PARTIES
1 . Plaintiff Carol A. Kardenetz is an individual who resides at
38 Bayview Avenue, Salem, Essex County, Commonwealth of
Massachusetts and is an abutter to the subject premises.
2. Plaintiff George Kardenetz is an individual who resides at 38
Bayview Avenue, Salem, Essex County, Commonwealth of
Massachusetts and is an abutter to the subject premises.
3. The Defendant, Robert J. Cook, is an individual who resides at
42 Bayview Avenue, Salem, Essex County, Commonwealth of
Massachusetts. Mr. Cook is an owner of the subject premises
and one of the applicants who requested a Variance before the
Salem Zoning Board.
4 . The Defendant, Elaine E. Cook, is an individual who resides at
42 Bayview Avenue, Salem, Essex County, Commonwealth of
Massachusetts . Mrs. Cook is an owner of the subject premises
and one of the applicants who requested a Variance before the
Salem Zoning Board.
5. The Defendant Gary M. Barrett is an individual and member of
the Zoning Board of Appeals of the City of Salem, with an
address of 7 Patton Road, Salem, Massachusetts.
6. The Defendant Nina V. Cohen, is an individual and member of
the Zoning Board of Appeals of the City of Salem, with an
address of 22 Chestnut Street, Salem, Massachusetts.
7. The Defendant Albert C. Hill, is an individual and member of
the Zoning Board of Appeals of the City of Salem, with an
address of 4 Larkin Lane, Salem, Massachusetts.
2
8. The Defendant Joseph Ywuc, is an individual and member of the
Zoning Board of Appeals of the City of Salem, with an address
of 86 Ord Street, Salem, Massachusetts.
9. The Defendant Richard E. Dionne, is an individual and member
of the Zoning Board of Appeals of the City of Salem, with an
address of 23 Gardner Street, Salem, Massachusetts.
10. The Defendant Arthur LaBrecque, is an individual and associate
member of the Zoning Board of Appeals of the City of Salem,
with an address of 11 Hazel Street, Salem, Massachusetts.
11 . The Defendant Paul Valaskatgis, is an individual and associate
member of the Zoning Board of Appeals of the City of Salem,
with an address of 24 Gables Circle, Salem, Massachusetts.
12 . The Defendant City of Salem is a duly organized municipal
corporation located in Essex County, Massachusetts .
III. FACTS
13. On November 27, 1995, the Plaintiffs, Carol A. Kardenetz and
George J. Kardenetz acquired Title to their residence, the
property at 38 Bayview Avenue, Salem, Massachusetts. This property
abuts 42 Bayview Avenue.
14 . On information and belief, Robert J. Cook and Elaine C. Cook
are residents and owners of the land and buildings known and
located as 42 Bayview Avenue, Salem, Massachusetts. This property
abuts the property of the Plaintiffs.
15. On or about October 29, 1997 the Defendants Cook did file an
application for Variance from the side set back by-laws of the City
of Salem in order to allow an addition to be built.
3
16. A copy of the application and plan, (2 pages) filed by the
Cooks, is attached as Exhibit "A".
17. No other plans, specifications or other documents were filed
at the office of the Building Inspector or the Zoning Board, by the
Defendants Cook, at any time up to and including the start of the
Hearing before the Board, 6:30 p.m. Wednesday evening, November 19,
1997 .
18 . A true and complete copy of the Salem Zoning Boards' Rules and
Regulations (4 pages) , concerning procedures for applications and
plans, is attached as Exhibit "B".
19. On November 19, 1997 a Hearing was held on the application
filed by the Defendants Cook before the Salem Zoning Board.
20. At the Hearing, and for the first time, the Cooks delivered
and presented before the Boardadditional plans, and otherwise gave
oral testimony and evidence as to their desire to build an
addition.
21 . Plans and specifications presented on the evening of November
19, 1997 had not even been reviewed by the Building Inspector.
22 . Plans and documents presented on the evening of the hearing
did not comply with the Salem Zoning Board' s Rules and Regulatio ns
concerning applications and plans.
23. At no time prior to the Hearing on November 19, 1997, did the
Plaintiffs or other parties at interest, or the public in general,
have an opportunity to view the plans as proposed and filed by the
Defendants Cook.
4
24 . other than stating their desire to build an addition, the
Defendants Cook did not offer or present any evidence whatsoever
having to do with the soil conditions, shape, or topography of the
land or structures, or other evidence, sufficient to justify (1) a
hardship, financial or otherwise, and/or (2) a variance.
25. The application for variance relief from the Salem Zoning by-
laws by the Defendants Cook was necessary, because the proposed
work violates, without limitation, sections of the Zoning
Ordinances of the City of Salem.
26. General Laws Chapter 40A § 11 requires that Notice of a
public Hearing shall be given by publication in a newspaper of
general circulation in the municipality, in each of two successive
weeks, the first publication to be not less than fourteen days
before the date of the Hearing. In addition, the statute,
requires, expressly or implicitly, that all application documents
and plans be available for inspection by parties in interest, and
the public in general, during theperiod of the a dvertised Notice.
Any local Board rules or customs inconsistent with this, are void
as against public policy.
27. The Cooks, the Board and/or the City of Salem, have thus
failed to comply with the Notice requirements for public hearings
under General Laws Chapter 40A § 11 .
28 . On November 19, 1997, the Board voted 4-0 to grant the
applicants request for relief, ruling that a Variance was necessary
from their own Zoning Ordinances, and thereafter granting . a
Variance.
29. The Board filed its Deci'sion with the City Clerk of the City
of Salem, and/or the Planning Board on December 3, 1997 .
5
30. A true photostatic and certified copy of the Board' s Decision
as filed, is attached hereto as Exhibit "C".
31 . The Plaintiffs specifically allege and state as follows :
a. The decision of the Board exceeds the authority of the
Board, in that the deci,sion was rendered at a Public
Hearing for which proper notice was not given, pursuant
to Salem Zoning Laws, and/or General Laws Chapter 40A §
11, or otherwise.
b. The decision exceeds the authority of the Board, in that
(without limitation) (1) sufficient evidence and/or
basis was not provided by the Cooks, to substantiate any
finding that a hardship existed; (2) the Board failed to
make requisite and true findings related to hardship;
and (3) no basis for a variance exists.
C. , The decision exceeds the authority of the Board under
General Laws Chapter 40A and/or the Salem Zoning Laws,
including without limitation, M.G.L. Chapter 40A § 10.
d. The Plaintiffs have standing to bring this action as
parties in interest, abutters, and/or otherwise. A copy
of the "Certified Abutters List" prepared by the City of
Salem, is attached as Exhibit "D".
e. Plaintiffs are aggrieved parties on the basis of
specific harm, which harm includes (without limitation)
devaluation of their property and loss of sight/view
which will be occasioned by the proposed construction.
f. The Defendants Cook have failed to file proper plans as
required by law, and/or by the City of Salem or
6
otherwise.
g. Any and all plans filed at, or subsequent to the
Hearing, including without limitation a copy of a
certain plan of land prepared for John W. and Cynthia:
Hutchinson dated September 5, 1991, was otherwise not
timely filed and not available for inspection or viewing
at the Hearing, and may not be made a part of the record
at the trial of this matter.
h. The decision of the Board was arbitrary and capricious.
32. The Salem Zoning Board has exceeded its authority, and/or has
otherwise committed an error of law.
33. The Salem Zoning Board decision should be annulled.
35. The property owned by the Defendant Cooks fails to satisfy all
lawful criteria as required to support a variance.
36. The Defendants Cook, and/or members of the Board and/or the
City of Salem, failed to comply with the Rules and Regulations of
the Zoning Board of Appeals of the City of Salem, and/or the
General Laws of the Commonwealth of Massachusetts.
37 . Plaintiffs hereby seek to annul and/or reverse the decision
of the Zoning Board of Appeals .
COUNT I
(General Laws Chapter 249 § 4)
38 . Plaintiffs repeat, reallege and incorporate herein,
specifically paragraphs 1-37 as if restated.
7
WHEREFORE, the Plaintiffs respectfully request, under General
Laws Chapter 249 § 4, that this Honorable Court issue an order as
follows:
A. Annulling the decision of the Zoning Board of Appeals;
B. Reversing the Decision of the Zoning Board of Appeals;
C. order costs of this action;
D. Find that the Salem Zoning Board of Appeals exceeded its
authority, and/or otherwise committed an error of law.
E. Such other orders as this Court deems appropriate'.
COUNT II
(General Laws Chapter 40A § 17)
40. Plaintiffs repeat, reallege and incorporate herein,
specifically paragraphs 1-39 as if restated.
WHEREFORE, the Plaintiffs respectfully request, under General
Laws Chapter 40A § 17, that this Honorable Court issue an order as
follows:
A. Annulling the decision of the Zoning Board of Appeals;
B. Reversing the Decision of the Zoning Board of Appeals;
C. Order costs of this action;
D. Find that the Salem Zoning Board of Appeals exceeded its
authority, and/or otherwise committed an error of law.
E. Such other orders as this Court deems appropriate.
Plaintiffs,
George Kardene
Carol A. Kard etz
ir
By Their Att ney,
IA
Date CARMEN A. FRATTAROYLI
BBO No. : 177960
76 Lafayette Street
Salem, MA 01970
(508) 740-9501
AFFF'Al, cAn No..............
—missachus9ffs
3carb ai —!k=ml
To TRZ BOARD OF APFFAL.
ThO Undortilowd ropmat., that Wahl Wave Cho evaers of , ,rcaLo parent of
Lommead ,.!!�Sllyllew A;wwass
.......... ............Smoc; ZOOLng alstricc...R.-I
and " I P8TC@l LE 8ff"Illd by SOCCIO.(q)...........
Stato S.LLdLl Code. ............ of the N ..ab...
Plans descrIbing ch" "'k "al'a"d ha`0 bOOS sabodcCad to the las"ecor of samig.
in "Co"""Oe' "Cb SOCCUM 11 A.1 at the fool" Mleate..
Direct Appeal
CID
CM
KZ
Aprp"=Cloo far P42 C Was domied by the Impecor
Somem(S)s of Buiulfts for the tau—ua
Diract App"IL
The Uaderelve"C botchy P*CICIOCO Cho Board of Appeal CO varr he @,,, at 0, Sloo
Z-afts Ordinates aed/or the a-tu"S Code a,, order Cho Los"Ce" Of ILuis.
oppTeve "' 'PP'L=tl- fee Parole to ballA " fjUw. " the *Stooeaaftc of at"
ly-L... "d Im"AAw co" weau Involve pragel—I 4""—'97
hardship to the ead 141149 May be groomed wlebc **r,,aCj.Uy eresC126
t'aa the toreat 'ea perp"a Of the Z*utag Or"O'ClOd "d ImUdIng Code for Cbe fOUCo_
Log Cremate:
?"'t"etag COqaa*t6 & TAXISSICO treat JA.
"tbftk to &UM m a"Itloo.
crate. -obast: nale, I;,,k
A6dwass. g:wwome,...............
T.Upb,,,..7.4.4.P)p.
. .....................
paticlaea'...Sgim.
Data... Address.................................
Telaob7
. ...............
sy... Z
..�i.. ...............
w lth a Cheek. drarclaftS In Cho eateet, of S............. foarr
There Capt" atIcha ap"A"Cloo ae"t 6* fU"w1ch the S'"acary Of the @-.d of App.1
lb-Daam&wi*App-" cb-k pay"" ce,cm. grr— c.Ml.*V.... be
,IZ
six IL
IN,
ji
0,111,11.
Itif
tj�
of �$Ulem,
�Rvarb of �ppzal
THE FIOLW41M RULES ARE ADOPTED BY A VOTE OF MEMBERS OF THE BOARD OF APPEAL IN
ACCORDANCE WIM THE STATE BUILDING. CODE, AND THE MASSACHUSETTS GWMAL LAM,
CHAPTER 40A.
1. All applications mast meet with the requirew-nts of the rules noted in
paragraphs 2, 3, 4, and must be accompanied by the required fees. NOT UNTIL
the application and fees are received by the clerk of the Board wil7it—he
application be considered to be placed on the agenda. There is a first come,
firstT*served basis, all applications will be. time stamped to insure priority.
2. All applications to the Board shall be filed in triplicate on the forms furnished
by the Board and must include all information regarding any previous applications
to Board, granted or denied, relative to the subject property.
3. In addition to the application, the petitioner must furnish the following:
Three (3) copies of a CERTIFIED Plot Plan, scaled and dimensioned, showing
the owner's name, the street and number of the property, parking spaces
available for the requested use, residential/comnercial, also, all existing
structures and location of any proposed work. In addition to the plot plan,
include three (3) sets of accurate, scaled drawings in accordance with the
City of Salem Building and Zoning Codes, showing all work proposed.
4. The Building Code requires that all construction plans, other than one or two fami-
dwellings must bear the stamp of a Professional Architect or Engineer, registered
in the Commonwealth of Massachusetts, and approved by the Building Inspector.
One and two family dwellings only; may be prepared by a persom whom the Building
Inspector deems competent, other than a registerd Architect or Engineer.
5. All decisions of the Board of Appeal are filed in the Office of the City Clerk,
no building permits, etc. , shall be issued until twenty (20) days from this filing
have passed and no complaints (appeals) made.
6. A public hearing is held for all applications to the Board and the petitioner or
his representative is expected to attend said hearing to present his petition.
7. All required smoke detectors must be certified by the City of Salem Fire
Department-
8. it is the responsibility of the petitioner to make certain of the accuracy of
the petition and the required plans.
9. REMINDER: ;,1jt1pg1,ica all advise the Board of any r lances
t S11of
or Special Pi PV'the property in question and tUT noiaky!rn'
of S2ilem'
Pearb of cAppeal
July 9, 1996
TO ALL APPLICANTS TO THE BOARD OF APPEAL
Dear Petitioner:
Before the Zoning Board of Appeal can accept your
application for a Variance, Special Permit or
Administrative Ruling, all items noted on the attached
instruction sheet which is given to you along with your
application forms must be complete . Incomplete
applications or incomplete plans will not be accepted by
the Board of Appeal.
The Board of Appeals also is only taking the first
ten ( 10) applicants . Once the agenda is complete with ten
applica nts we can no longer accept any more.
Please take the time to read the enclosed pages .
Sho ld you have any questions or need anyassistance the
Zoning Fnforcement officer or the Clark of the Board will
be glad to help.
.Gary Barrett
Chairman
of Z��Zirm.
A
Boarb ci =rsi
NO �ATES CHECKS PLEASE
TEE SCHEDULE TOR BOARD OF APPEAL
All requests for Special Permits or Variances will
require a fee for advertising notices of hearings to The
SAlem Evening 3ews for
S171 - 26 � Pavable to Salem Evening
All requests for Special Permits or Variances will
require the fee for a Certified Copy of the Decision to
e
City Clerk or fPayable to C � ty of Salemi
3 All requests for Special Permizs of Variance will
require the fee for �:�e Recording :he Decision to the
R'egistry of Deeds For $10 . 00 ( Payable to Registry of
aeeds ) .
All requests for Special Permits or Variances will
require the filing lee of S75 - 00 for the Board of Appeal
!Payable to Board of Appeai ) .
w
5, Requests for Special Permits or Variances which will
increase the -umber �f existing dwel-, ; ng units at a
property will involve an additional :ee of i3O . On for each
additional �4welling unit -which is requesced .up to a
maximum of 1500 . 00 . -which fee will be refunded : .P zhe
reauest is denied . Payable to Board otr Appeal ) .
5 . Where Special Permits or Variances are requested of
new construction of dwelling units . a fee of S50 . 00 per
dwelling unit -will be charged to up to a maxi7mumor '
SSOO - 00 whic� will be refunded if the request is denied.
(Payable to City of Salem Board of Appeal ) .
7 . The fees ( numbers 4 ,5 , 6 ) will be waived if the city or
agency of the city is the petitioner .
M
17 r
A .......
suilivan
Comments to the Board of Appeal from the Fire Department are the result
an inquiry Made on the property in question relative to compliance with
the laws. ordinances, and regulations pertaining to public safety.
Under the provisions of Chapter 148, Sections 26C and 26E. Massachusetts
General Laws. all residential properties are required to be protected by a
system of automatic smoke detectors. Those properties which do not
conform with these provisions are technically in violation of the !aw.
I
In many �*ases however. homeowners have installed the required smoke
,ietectors. but have never arranged for an inspection by the Fire
Department. The Fire Prevention Bureau maintains a file of proverties
which have been inspected and are in compliance with the law. A check C:
this file is made as the basis for comments prepared for submittal to the
Board of Appeal.
In cases where relief of the Zoning ordinance is requested of the Board
for decks. porches. pools. and items which appear to be unrelated to the
requirement for smoke detectors, it is often made a condition that the
appellant contact the Fire Prevention Bureau and obtain compliance before
the issuance of a Building Permit by the Building Department. 7he reasor.
for this is that the dwelling on this property is not recorded as having
.;OmPliance with this law.
The orQcedure in obtaining the required compliance is quite easv. An
appointment is made for a fire inspector to visit the propertyj conduct a
brief inspection. and issue a "Certificate of Compliance". indicating that
the property is in compliance with the requirements of the law. This
inspection may take five to ten minutes at most.
Over the Past few years. many homes which otherwise would not have been.
Protected by smoke detectors have become safer through this poiicy. It is
a proven fact that smoke detectors do save lives.
Should You require assistance injocating your smoke detectors, or would
like help in any fire prevention area, please call the Fire Prevention
Bureau during normal business hours, and an inspector would be more thar
willing to assist you.
' C"
2
gat of �szliemj' cmassadJUSA
07 1 CITY OF SALEM.
S&LMMA S MASS
e.jTy OF r's OFFICE Psarb of '�kppeal CLERrs OFFICE
CLER
DECISION OF THE PETITION OF ROBERT & ELAINE COOK REQUESTING A
VARIANCE FOR THE .PROPERTY LOCATED AT 42 BAY VIEW AVENUE (R-1)
A hearing on this petition was held November 19, 1997 with the following
Board members present: Gary Barrett, Chairman; Nina Cohen, Albert Hill, and
Richard Dionne. Notice of the hearing was sent to abutters and others and
notices of the hearing were properly published in the Salem Evening News in
accordance with Massachusetts General Laws Chapter 40A.
Petitioner requests a Variance from side setback to allow an addition for
the property located at 42 Bay View Avenue.
The Variance which has been requested may be granted upon -a finding of this
Board that:
1. Special conditions and circumstances e xist which especially affect the
land, building or structure involved and which are not generally affecting
other land, buildings, or structures in the same district.
I
2. Literal enforcement of the provisions of the Zoning Ordinance would
involve substantial hardship, financial or otherwise, to the petitioner.
3. Desirable relief may be granted without substantial detriment to the
public good and without nullifying or substantially derogation from the
intent of the district or the purpose of the Ordinance.
The Board of Appeal, after careful considerations the evidence presented at
the hearing, makes the following findings of fact:
1. The petitioner Robert Cook appeared and presented the plans for his
proposed addition. He would like to bump out the kitchen area 4 feet
to give them additional space for their kitchen. Said addition will
not change the foot print of the existing structure.
2. Cynthia Hutchinson, 44 Bay View Avenue appeared and spoke in favor of
the petition.
Attorney Carmen Frattaroli, 76 Lafayette Street representing Carol and
George Kardenetz of 38 Bay View Ave. opposed this petition due to the
fact that they were not able to view the plans prior to the hearing and
said proposed addition would interfere with their ocean view. -
4. The plans were ava ilable for review and time was made to go over
the proposed construction of this property.
On the basis of%the above findings of fact, and on the evidence presented ,
at the hearings, the Board of Appeal concludes as follows:
Special conditions 'exist which especially affect the subject property
and not the district in general.
2. Literal enforcement of the provisions of the Zoning Ordinance would
involve substation hardship to the petitioner.
'P
DECISION OF THE PETITION OF ROBERT & ELAINE COOK REQUESTING
VARIANCE FOR THE PROPERTY LOCATED AT 42 BAY VIEW AVENUE .
page two
3. Desirable relief can be granted without substantial detriment to
public good and without nullifying and substantially derogating from
the intent of the district or purpose of the Ordinance.
On the basis of the above findings of fact,- and on the -evidence presented
at the hearing, the Zoning Board of Appeal voted unanimously, 4-0 to grant
the variance requested, subject to the following conditions-
1. Petitioner shall comply with all city and state statures, -brdinances,
codes and regulations.
2. All construction shall be done as perthe plans andd*imensions
submitted and approved by the Building Inspector.
3. All requirements of the Salem Fire Department relative to smoke and
safety shall be strictly adhered to.
4. Petitioner shall obtain a building permit prior to beginning any
construction.
5. A Certificate of Occupancy is tobe obtained.
6. Exterior finishes of the new construction shall be in harmony with the
existing finishes.
Variance Granted
November 19, 1997
': -Albert Hill, Member
_A�Joard of Appeal
1�
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY
CLERK ......
Appeal from this decision, if any, :shall be made,pursuant to Section 17 of
the Massachusetts General Laws Chapter,40A, and shallbe filed within 20
days after the date of filing of this decision in the office of the City
Clerk. Pursuant to Massachusetts General .Laws Chapter 40A, Section, 11, the
Variance or Special Permit granted herein shall not take effect until a
copy of the decision hearing the certification of the City Clerk that 20
days have elapsed and no appeal has been filed, or that, if such appeal has
been filed, that it has been dismissed or denied is recorded in the South
Essex Registry of Deeds and indexed under the name of the owner of record
or is recorded and noted on the owner's Certificate of Title.
Board of Appeal
A TRUE COP, ATTEST orl
Z
C17Y CLERK
IALIMI MAIL ,,
r
�i
N
M.AKI, fle A88K8R)NM
riTV HAr.r, PAGK:
SAI.M. MA 0147n
r-ATR : 11112�147
CERTIFIED ABUTTERS LIST
SUB6JRCT PROPERTY; MAP: -*4-- EM: '01 43r
PROPRRTY AnnRMSS: M342 SAY VTPW AVRNIJK
A.4SRSSRn nWNRR I MAX RORKRT J
MAP LOT 911PP PROPERTY ADDRESS ASSESSED OWNER MAILING ADDRESS
44 0141 (042 BAY VTHW AVENUE COOK RORRRT J 41 BAY VTRW AVR
COOK HGAINS SAI.RM MA Olq7l)
44 0041A -0092-CnrllHfUlS`-AVRNfT8------rAS.q-W".tTAM-7-TTr-- q2 MT.11MR11S AVR
I SAE.r.T9 W NALRM MA 0147n
44 oosq 0043 MY �TRW AURN119 RgrAR THnMAS r. 4.1 RAY VTFtW AVR
-------------- SALRM MA''01 q7n
44 ()t4l 00AS BAY Vr9W AVRMHR I311fraRT RRNNRTR P 4A RAY VtRW AUK
Glitr.4RT PKTROHA X SAf.KM MA n1170
44 0142 RAY VTRW AVR
CYNTHTA RALM MA nlq7n
44 0144 4038 BAY VTRW AVRNIIR WARnRNRTX CAR01. A IA RAY VTKW AVR
mAKUIMRT4 UMUKI�K qAT.VM'MA-nlq7n
44 AL45 OA30 SAY VT9W AVEN118 DeinA RUGRH9 A M) RAY VTRW AUK
MARY G SAr.Rm MA Olq7n
-44-nl 4C I qArjU4 C.RRRM
SA1,8M MA 01470
SEPTEMBER 20, 1999
CARMEN A.FRATTAROLI
76 LAFAYETTE ST
SALEM,MA 01970
RE:42 BAY VIEW AVENUE
KARDENETZ V. COOK, et. al.
ESSEX SUPERIOR COURT
CIVIL ACTION NO.: 97-2354B
DEAR MR.FRATTAROLI:
AT THIS TIME WE WOULD LIKE INFORM YOU OF OUR WITHDRAWAL FROM OUR REQUEST
FOR A VARIANCE.
SINCERELY,
ROBERT J. COOK
ELAINE COOK
cc: ZONING BOARD OF APPEALS
CITY SOLICITOR
APPEAL CASE No
sem
fij3zrrh ci Arpzaj
TO THE BOAR.D OF AppEAL.
The Undersigned represent that he/she is/are the owners of a
42 Bayview Avenue certain
located at:. . . . . . . .. . .. . *... .Street; Zoning District. ..R-1 Parcel Of lind
and said Parcel is affected by Section(s).. .. .. .... . .. . . . . .. . . . ..... ............
State Building Code. of .t.he �'ass2chusetts
Plans describing the work proposed have been submitted to the Inspector of Buildings
in accordance with Section 11 A.1 of the Zoning Ordinance.
r— Ui
F_: c" U) Direct Appeal
LAJ
L"a C)
Lu
Ln tAm
C.D
W
C-3
W
Q:
C�j
L)
c:::)
The Application for Permit was derLied by the Inspector of Buildings for the following
reason(s):
Direct Appeal
The Undersigned hereby, petitions the Board of Appeal to vary the cerms of the Sale.
Zoning Ordinance and/or the Building Code and order the Inspector of Buildings to
approve the application fee permit to build as filed. as the eiLforce=ent of s&id
Zoning By-Laws and Building Code would invoive practical difficulty or unnecessary,
hardship to the Undersigned and re.Lief may be grz=ted without substantially deragatimg
from the intent and Purpose of the Zoning Ordinance and Building Code for the follow-
ing reasons:
Petitioner requests a Variance from side
setback to allow an addition.
Owner. Robert & Elaine Cook
Address. 42 Bayview Avenue
.. . .. ... .... ............ ........
Telephone. ��k4.-Aklp
Petitioner. . . .SAME :
..... .....................
Date... 1997 Address. .. . . . .. .. . . . ...... ..............
. ...... .. . TeleDn7
By..
....... .........
Three copies of the application =at
be filed with the Secretary of the Board of Appeal
with a check. for adverrisimg In the .-_unc of $------------ - four weeks prior to the
the' DOME&Of-APPeal. Check payable to LEe !Fare- Even.M.- New&-
AP�TNU A.PPFAL CASE No. . . . . . . . . . . . . .
A�=Frai
TO THE BOARD OF APPEA-L:
The Undersigned repres�cc that he/she is/are the
owmers ot a certain parcel of I—
located ac:. .42'Bayview* Avenue- - - --** . ..Street; Zoning District. . .R-1 ind
..... ............
and said parcel is affected by Section(s).. ....... .. . . . . . . .. . . .
State Building Code. Of t.he �'assachuserts
Plans describing the work proposed have been submitted to the Inspector of Build gs
in accordance with Section IX A.1 of the Zoning Ordinance. in
r—
t-: c" Direct Appeal
LAJ
LLJ
Ln
W
Uj
W-
C>
C7,)
The Application for Permic was denied by the Inspector of Buildings
reasou(s): for the follow1mg
Direct Appeal
The Undersigned hereby petitions the Board of Appeal CO var7 the terms Of the SaleW
Zoning Ordinance and/or the Buildimg Code and order the Inspector of Buildings to
approve the application fee permic to build as filed. as the enforcement of said
Zoning By-Laws and Buildizg Code would involve practical difficulty or unnecess&"
hardship to the Undersigned and relief may be granted without substantially derogating
from the intent and purpose of the Zoning Ordinance and Build
ing reasons: Ing Code for the folIOw_
Petitioner requests a Variance from side
setback to allow an addition.
Owner. Robert & Elaine Cook
" * ' * " *.. . . ...... *.........
Address.A�. Bayview Avenue
. . ...... ...... ..............
Telephone. ��k4.-A4.11�
SAME
Petitioner. . . .. .
Date.. . 1997 Address. .. . . . .. ... . . . .... . .... ..........
. . .. .... . . TeleDno
By..
...... . ........
Three copies of the application =st be filed with the Secretary of the Board of Appeal
with a check. for advertising In the 2�nun C of $------------ - four weeks prior to the
Check payable cc c6e !,aZ!Jm Even=z- New&-
APPEAL CASE No
IMP
Bnarb oi
TO TIJE BOARD OF APPEAL:
42 Bayview Avenue a
The Undersigned represent that he/she is/are the owners of a certain p rcel of lind
located ac: . . R-1
. .. .. **'0 * . . . . -0 ... . . * Street:; Zoning District. . ......
and said parcel is affected by Section(s).... ..... . . . . . .. . ..
State Building Code. of I t.he massachuse.cts
Plans-,desc3zz6bing
1,-in a CY.) the work proposed have been submitted to the Inspector of Buildings
a- Gcorda4e with Section IX A.1 of the Zoning Ordinance-
LLJ I x
ca
LLJ:i
CD Ln >.W Direct Appeal
LU
or
cl') C3
C"i
CD
The Application for Permic was denied by the Inspector of Buildimg
reason(s): s for the f olIowing
Direct Appeal
The Undersigned hereby petitions the Board of Appeal to vary the terms of the Sale=
Zoning Ordinance and/or the Building Code and order the Inspector of Buildings to
approve the application fee permit to build as filed. as the enforcement of sajd
Zoning BY-I�wR and Building Code would involve practical difficulty or unnecessaxy
hardship to the Undersigned and relief may be granted without substantially der0gat:Lng
from the intent and purpose of the Zoning Ordinance and Build:Ln llow
ing reasons: 9 Code for the fo
Petitioner requests a Variance from side
setback to allow an addition.
Owner. Robert & Elaine Cook
" ... . . . .... .......*........
Address.A�. Bayview Avenue
. ................o.. ........
Telephone.
SAME
Petitioner
Date. . . 1997 Address.. . .. . .. ... . . .... . ...m......... .
.... ... . . . Teleonoi73�
By...
........... .........
Three copies of the application must be filed with the Secretary of the Board of Appeal
with a check, for adverttsimg in the ---on c of $------------ - four weeks prior
th'--hmmtt 0-f-APPeal. Check nayah" cc t&a garem Zven=UL blesm- to the
50
ep� 300 s
41
00
()9
cn
IOU,
00
tp
CL
cn 4
tA
Cl)
(.0
4(b 01)
ot ro
-to
Al
44) tp
Ib
0
011
05
0
tK
d 1).R 5.1.
pill
/.�J-.
pm 0
yj r!
A.
A
),,n:) .6 Al
t\,o .......
0.H
(A jj�,jo
L4
Citp of *alem, Alazzacbuattg;
13publit 3propertv mepartment
jguffbing Mepartment
One 6alem Oreen
(978) 745-9595(ext. 3SO
Leo E. Tremblay
Director of Public Property
Inspector of Building
Zoning Enforcement Officer
June 10 , 1998
To Whom it May Concern:
It is not uncommon that the Building Department
processes paper work for the Board of Appeals hearings
without complete architectural drawings submitted to the
board up until the night of the meeting for various
reasons .
Contrary to the thinking of Mr and Mrs . Cook' s
neighbors , this was not done because Mrs. Cook is employed
by the Building Department, small sketches were provided
at the filing of the paper work for Board of Appeals .
All plans and specifications were properly reviewed
before they were submitted the evening of the meeting.
Small sketches were provided prior to the meeting and
could be reviewed by any interested party. All required
notices were sent per rules and regulations of
Massachusetts General Laws.
Mr. & Mrs . Cook did not receive special treatment in
filing to the Board of Appeals because of her status of
employment with the Building Department . Just by the fact
that the Cooks filed to the Board of Appeals for a Special
Permit should be enough proof that they meant to follow
legal procedures .
On the morning George Kardenetz appeared at the
building office requesting to see the application and
plans that were submitted by the petitioners , Mrs . Cook
who was behind the counter could not find the original
application submitted. The person in charge of the Board
of Appeals happened to be out on a personnel day. Mrs.
Cook presented copies of what she had in her personnel
files . The paper work was later found when I returned to
the office that day. Again, nothing was done deliberately
office that day. Again, nothing was done deliberately to
impeded the process or to keep any information from the
abutters or any one else in this matter .
I as the Department Head know and feel that nothing
illegally was rendered to Mr . & Mrs . Cook by my
department.
Sincerely,
Leo E. Tremblay
Zoning Enforcem 7nt Officer
CARMEN A. FRATTAROLI AND ASSOCIATES
ATTORNEYS AND COUNSELORS AT LAW
THE METcom BuRDiNG
76 LAFAYE-rrE STREET
SALEm,MASSACHUSETTS 01970
CARmEN A.PRATTARou TELEPHONE
(508) 740-9501
WujiAm F.MARTiN FAcsimmE
OF COUNSEL (508) 740-9692
November 19, 1997
VIA FACSIMILE 744-5918
Mr. Gary Barrett
Chairman
Zoning Board of Appeals
City of Salem
One Salem Green
Salem, MA 01970
RE : Variance Petition
Petitioners : Robert and Elaine Cook
Premises : 42 Bayview Avenue
Salem, MA 01970
Hearing Date: November 19, 1997
Dear Mr. Barrett and Members of the Board:
Please be advised that this office represents Carol
and George Kardenetz of 38 Bayview Avenue, Salem, MA.
Respectfully on behalf of Mr. and Mrs . Kardenetz we oppose
the above petition for a variance and cite the following
reasons therefore:
1 . The petition and plan filed by the applicant are
inadequate and in violation of the Board' s rules
regarding the variance application process .
Specifically, the plan attached to the
application was uncertified, and otherwise failed
to comply with the requirements of Rule 3 .
Mr. Gary Barrett
Page Two
November 19, 1997
2 . No accurate scale drawings were filed with the
application or plot plan. Such drawings, which
are to show work proposed, were never filed with
the application; also in violation of Rule 3.
3. Both my client, and this office, were advised on
separate occasions, that the applicant intends to
bring in additional plans to the Hearing, on the
evening of November 19, 1997 . Such last minute
delivery of any additional materials, plans or
application documents violates both the spirit
and the substance of Rules and Laws requiring
adequate notice to the abutters and to the public
in general . The essential concept of notice
contained in the Board' s rules and in General
Laws Chapter 40A § 11, requires that both parties
in interest and the public in general, be given
an opportunity to review any specific plans which
are the subject matter of the application.
Therefore, we request that no plans or further
documents be accepted by the Board at the
Hearing.
4 . Most significantly, we suggest that the
application falls far short of the Variance
standards contained both in this Board' s rules
(Salem Zoning Ordinance § 9-5) and the General
Laws (General Laws Chapter 40A) . Specifically
the application shows no circumstances relating
to the soil conditions, shape, or topography of
the land or structures, especially affecting such
land or structures, but not affecting generally
the zoning district in which it is located, such
that a literal enforcement of the 'provisions of
the zoning ordinance would involve a substantial
hardship to the petitioner. Moreover, the
allowance of this Variance would derogate from
the intent or purposes of the Zoning Ordinance,
which is to require appropriate and consistent
setback and sideback dimensions .
Mr. Gary Barrett
Page Three
November 19, 1997
In the interest of fairness, we also call the Board' s
attention to an incident which occurred on November 10,
1997 . On that date, in the morning, our client George
Kardenetz appeared at City Hall offices and requested to
see the application and plans submitted by the petitioners
Robert and Elaine Cook. One of the petitioners, Elaine
Cook was behind the counter and claimed that she could not
find the application, which she herself had filed! Mr.
Kardenetz was denied a review.
Once pressed, later in the day, the office of the
Building Inspector "found" the application. Our office
continues to investigate this matter, and we assume the
Board would want to conduct its own investigation in order
to assure the integrity of the process .
For all of the above reasons, we respectfully request
that the Board deny the request for Variance at tonight' s ,
hearing.
We look forward to speaking before the Board tonight .
We have also included additional copies of this letter for
the convenience of the Board. Thank you.
Very truly ours,
Carmen A. Frattaroli
: jaz
Enclosure
Cc: Mr. and Mrs . George Kardenetz
CARMEN A. FRATTAROLI AND ASSOCIATES
ATTORNEYS AND COUNSELORS AT LAW
THE METcom BuiLDiNG
76 LAFAYETM STREET
SALEM,MAssAcHu=01970
CARMEN A.FRATTARou TELEPHoNE
(508) 740-9501
WILLIAM F.MARTIN FAcsimiLE
OF COUNSEL (508) 740-9692
November 21, 1997
BY HAND DELIVERY
Mr. Gary Barrett
Chairman
Zoning Board of Appeals
City of Salem
One Salem Green
Salem, MA 01970
RE: our Clients : Carol and George Kardenetz
Variance Petition
Petitioners : Robert and Elaine Cook
Premises : 42 Bayview Avenue
Salem, MA 01970
Hearing Date: November 19, 1997
Dear Mr. Barrett :
First, I wish to thank the Board for the opportunity
to appear on behalf of our clients in opposition to the
above matter. As you know, the Board voted 4-0 to grant
the Variance Petition.
I would appreciate the cooperation of the Board in
regard to the following matters :
1 . First, kindly place this office on your list to
receive a copy of the Decision as soon as it has
been signed by the Board and filed.
Mr. Gary Barrett
Page Two
November 21, 1997
2 . We appreciate an opportunity to make, at our
expense, copy of the tape recording of that
portion of the Hearing which represents the Cook
Variance Petition, heard November 19, 1997 .
3 . We would appreciate your office providing to us a
complete copy of the names and address of all
seven (7) Board members for our records .
4 . We would like to obtain a copy of any and all
plans or other documents filed by the applicants,
on the evening of November 19, 1997 or subsequent
thereto.
S. Finally, we would like a complete set of the
Boards rules with regard to application
procedures . .
Thank you in advance for your anticipated cooperation.
LVery tr ly your
Carmen A. Frattaroli
:jaz
cc: Mr. and Mrs . George Kardenetz
BIIK
We, P. John Grieco and Constance Grieco, husband and wife, as tenants
by the entirety
of 38 Bay View Avenue, Salem, Essex Co=ty,Massachusetts
being a=narried,for mnsideration paid,and in full consideration of $270 000.00
grant to Richard P. Davis and Mary I. Davis,�`as tenants by the entirety
of Carlisle, Middlesex County, Massachusetts with quUrLatm rimenants
the land in said Salem with the buildings thereon and bounded and
described as follows:
[De.czi,nion..d b..^U.,I
Beginning at the westerly corner thereof at land formerly of
Innes which corner is one hundred (100) feet southwesterly from
Bay View Avenue, thence running
SOUTHEASTERLY by said land formerly of Innes forty and 83/100
(40.83) fast more or less to land formerly of
George W. Dunn; thence running
SOUTHWESTERLY by said George W. Dunn land fifty (50) feet more
or less; thence running
NORTHWESTERLY forty and 83/100 (40.83) feet more or less to land
formerly of Peach; thence running
NORTHEASTERLY by said land formerly of Peach and by land now or
formerly of Moody fifty (50) feet more or less to
the point of beginning.
Being number 38 1/2 Bay View Avenue.
NORTHEASTERLY by Bay View Avenue forty and 83/100 (40.83) feet;
S017.7EASTERLY by land formerly of Sarah A. Rolfe one hundred
�0) feet
S0TrrtT.W`FSTFRLY b and herein conveyed formerly of George W. Dunn
f - and 83/100 (40.83) feet:
NORTHWESTERLY b nd formerly of Brunet one hundred (100) feet.
Being number 38 View Avenue.
The above described parcels are conveyed subject to all encum-
brances of record. Together wi th any rights in Juniper Cove
appurtenant to said granted premises. Expressly reserving to
h
Susan C. Dunn, at heirs and assigns the right at any time to use 4;1�.,
the area on the southwesterly side of granted premises, ten (10)
feec wide and the distance of one hundred (100) feet from Bay
View Avenue for all purposes and type of traffic for which a way
might be used to insure the free passage to and from the rear
z part of real estate of Susan C. Dunn, her heirs and assigns to
and from said Bay View Avenue.
Hereby granting to the Grantees, their heirs and assigns the
right to pass on foot on the premises of Susan C. Dunn, her heirs
and assigns around the garage now on granted premises.
Reference is also made to a plan entitled "Plan of Land in Salem,
Mass. belonging to George W. Dunn, Walter M. Wheeler, Civil
Engineer", recorded with said Deeds, Plan Book 66, Plan 89.
Being the same premises conveyed to us by deed of Willi" J.
LundreRan dated January 31, 1986, and recorded with the Essex ANN"
South Registry of Deeds, Book 8107, Page 532.
NUISE
(Imlividual—Joint Tenmus—Tmaims in Common.)
MORTGAGE INSPECTION
SAY STATE SURVEYING SERVICE INC.
E 234 CABOT ST., BEVERLY, MA.
LOCATION NOTES:
---------- - .............. This is a Mortgage Inspection survey and not an
SCALE : I FT DATE :
... ..... ....
7-"" """ instrument survey,therefore this plot plan is for
REFERENCE mortgage inspection purposes only.
7—Y ... ....... -This survey is based on survey marks of others.
o Bushes, shrubs,fences and tree lines do not
To -necessarily indicate property lines.
.. ............ �* In my professional opinion the building(s) are iM
I hereby certify that I have examined the premises and that the located in the special flood hazard zone, as defined
building(s) shown on this plan are located on the ground as by H.U.D.
shown anp that they gonformed to the zoning setbacks of the o Whenever an offset is 1'± or less, an instrument
I a when constructed. survey is recommended to determine prop. lines.
-,�?7XUC7�IA�F- Ae., 1A) 74XJ,�5 A
4
q2
LOT-*33e
LOT :;�t44
40,83
OBERT
BAY VIEW AVE
J E
CISA
L A
cov
7 'AN
ROO
AREA
A 6000 S.F.
3
RON
ROD A,
set
ACCESS AREA
IRON #42
ROO cF
�T
Qay
06 L
�T
BAYVIEW AVENUE
PLOT PLAN OF LAND
42 SAYVIEW AVENUE
SALEM
PROPER TY Or
�';-�"�'ROBERT & ELAINE COOK
AL APRIL 9. 1998
.SC E I' - 20'
NORTH SHORE SURYU CORIP.
47 LINOEN ST. — SALEM. MA
CARMEN A.FRATTAROLI AND ASSOCIATES
ATTORNEYS AND COUNSELORS AT LAW
THE METoom BUILDING
76 LAFAYETTE STREET
SALEm,MASSACHUSETTS 01970
CARmEN A.FRATTARou TELEPHONE
(508) 740-9501
WILLMM F.MARTIN FAcsimu.E
OF COUNSEL (508) 740-9692
December 5, 1997
cm
City of Salem
City Clerk' s office
City Hall
V) LZ
Salem, MA 01970
RE: Kardenetz, et. al. v. Cook, et. al .
Essex Superior Court
Dear Sir/madam:
In accordance with General Laws Chapter 40A § 17
and/or the applicable Zoning Rules and Regulations of the
City of Salem, notice is hereby given to you of the above
zoning appeal, filed in Essex Superior Court December 5,
1997 . A copy of the Complaint and Civil Action Cover Sheet
are enclosed for your records.
Kindly provide our courier with a wri receipt.
wrl
Thank you.
Very trul y your
Carmen A. Frattaroli
: jaz
Enclosure
Cc: Mr. and Mrs. George Kardenetz
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss SUPERIOR COURT
DOCIST NO.
CAROL A. KARDENETZ, and
GEORGE KARDENETZ,
Plaintiffs
V.
ROBERT J. COOK, ELAINE E. COOK, COMPLAINT
GARY M BARRETT, NINA V. COHEN,
ALBERT C. HILL, JOSEPH YWUC,
RICHARD E. DIONNE, ARTHUR LABRECQUE,
PAUL VALASIQLTGIS, and CITY OF SALEM,
Defendants
ca-z
I . INTRODUCTION
This is an action brought by an abutting land owner, appealing
the grant of a Variance by the Zoning Board of the. City . of Salem.
This appeal seeks alternative relief and is brought as follows :
A. Pursuant to Massachusetts General Laws Chapter 40A § 17 .
Plaintiffs are aggrieved parties, and hereby Appeal a certain
decision of the City of Salem Zoning Board of Appeals dated
December 3, 1997, which granted the application of a Variance to
the Defendants, Robert J. Cook and Elaine C. Cook. �
B. Pursuant to Massachusetts General Laws Chapter 249 § 4
Plaintiffs seek relief in the nature of Certiorari, as may be
necessary to appeal and overturn a decision of the City of Salem
Zoning Board, dated December 3, 1997, granting a Variance or other
relief to the Defendants, Robert J. and Elaine C. Cook.
II. PARTIES
1 . Plaintiff Carol A. Kardenetz is an individual who resides at
38 Bayview Avenue, Salem, Essex County, Commonwealth of
Massachusetts and is an abutter to the subject premises.
2. Plaintiff George Kardenetz is an individual who resides at 38
Bayview Avenue, 'Salem, Essex County, Commonwealth of
Massachusetts and is an abutter to the subject premises.
3. The Defendant, Robert J. Cook, is an individual who resides at
42 Bayview Avenue, Salem, Essex County, Commonwealth of
Massachusetts. Mr. Cook is an owner of the subject premises
and one of the applicants who requested a Variance before the
Salem Zoning Board.
4. The Defendant, Elaine E. Cook, is an individual who resides at
42 Bayview Avenue, Salem, Essex County, Commonwealth of
Massachusetts. Mrs. Cook is an owner of the subject premises
and one of the applicants who requested a Variance before the
Salem Zoning Board.
5. The Defendant Gary M. Barrett is an individual and member of
the Zoning Board of Appeals of the City of Salem, with an
address of 7 Patton Road, Salem, Massachusetts.
6. The Defendant Nina V. Cohen, is an individual and member of
the Zoning Board of Appeals of the City of Salem, with an
address of 22 Chestnut Street, Salem, Massachusetts.
7. The Defendant Albert C. Hill, is an individual and member of
the Zoning Board of Appeals of the City of Salem, with an
address of 4 Larkin Lane, Salem, Massachusetts.
2
8. The Defendant Joseph Ywuc, is an individual and member of the
Zoning Board of Appeals of the City of Salem, with an address
of 86 Ord Street, Salem, Massachusetts.
9. The Defendant Richard E. Dionne, is an individual and member
of the Zoning Board of Appeals of the City of Salem, with an
address of 23 Gardner Street, Salem, Massachusetts.
10. The Defendant Arthur LaBrecque, is an individual and associate
member of the Zoning Board of Appeals of the City of Salem,
with an address of 11 Hazel Street, Salem, Massachusetts.
11 . The Defendant Paul Valaskatgis, is an individual and associate
member of the Zoning Board of Appeals of the City of Salem,
with an address of 24 Gables Circle, Salem, Massachusetts.
12. The Defendant City of Salem is a duly organized municipal
corporation located in Essex County, Massachusetts.
III. FACTS
13. On November 27, 1995, the Plaintiffs, Carol A. Kardenetz and
George J. Kardenetz acquired Title to their residence, the
property at 38 Bayview Avenue, Salem, Massachusetts . This property
abuts 42 Bayview Avenue.
14 . On information and belief, Robert J. Cook and Elaine C. Cook
are residents and owners of the land and buildings known and
located as 42 Bayview Avenue, Salem, Massachusetts. This property
abuts the property of the Plaintiffs.
15. on or about October 29, 1997 the Defendants Cook did file an
application for Variance from the side set back by-laws of the City
of Salem in order to allow an addition to be built.
3
16. A copy of the application and plan, (2 pages) filed by the
Cooks, is attached as Exhibit "A".
17 . No other plans, specifications or other documents were filed
at the office of the Building Inspector or the Zoning Board, by the
Defendants Cook, at any time up to and including the start of the
Hearing before the Boardi 6: 30 p.m. Wednesday evening, November 19,
1997.
18. A true and complete copy of the Salem Zoning Boards' Rules and
Regulations (4 pages) , concerning procedures for applications and
plans, is attached as Exhibit "B".
19. On November 19, 1997 a Hearing was held on the application
filed by the Defendants Cook before the Salem Zoning Board.
20— At the Heating, and for the first time,. the Cooks delivered
and presented before the Board additional plans, and otherwise gave
oral testimony and evidence as to their desire to build an
addition.
21. Plans and specifications presented on the evening of November
19, 1997 had not even been reviewed by the Building Inspector.
22. Plans and documents presented on the evening of the hearing.
did not comply with the Salem Zoning Board' s Rules and Regulations
concerning applications and plans.
23. At no time prior to the Hearing on November 19, 1997, did the
Plaintiffs or other parties at interest, or the public in general,
have an opportunity to view the plans as proposed and filed by the
Defendants Cook.
4
L
24. Other than stating their desire to build an addition, the
Defendants Cook did not offer or present any evidence whatsoever
having to do with the soil conditions, shape, or topography of the
land or structures, or other evidence, sufficient to justify (1) a
hardship, financial or otherwise, and/or (2) a variance.
25. The application for variance relief from the Salem Zoning by-
laws by the Defendants Cook was necessary, because the proposed
work violates, without limitation, sections of the Zoning
ordinances of the City of Salem.
26. General Laws Chapter 40A § 11 requires that Notice of a
public Hearing shall be given by publication in a newspaper of
general circulation in the municipality, in each of two successive
weeks, the first publication to be not less than fourteen days
before the date of the Hearing. In addition, the statute,
requires, expressly or implicitly, that all application documents
and plans be available for inspection by parties in interest, and
the public in general, during the period of the advertised Notice.
Any local Board rules or customs inconsistent with this, are void
as against public policy.
27. The Cooks, the Board and/or the City of Salem, have thus
failed to comply with the Notice requirements for public hearings
under General Laws Chapter 40A § 11 . 1
28. on November 19, 1997, the Board voted 4-0 to grant the
applicants request for relief, ruling that a Variance was necessary
from their own Zoning Ordinances, and thereafter granting a
Variance.
29. The Board filed its Decision with the City Clerk of the City
of Salem, and/or the Planning Board on December 3, 1997 .
5
30. A true photostatic and certified copy of the Board' s Decision
as filed, is attached hereto as Exhibit "C".
31. The Plaintiffs specifically allege and state as follows:
a. The decision of the Board exceeds the authority of the
Board, in that the decision was rendered at a Public
Hearing for which proper notice was not given, pursuant
to Salem Zoning Laws, and/or General Laws Chapter 40A §
11, or otherwise.
b. The decision exceeds the authority of the Board, in that
(without limitation) (1) sufficient evidence and/or
basis was not provided by the Cooks, to substantiate any
finding that a hardship existed; (2) the Board failed to
make requisite and true findings related to hardship;
and (3) no basis for a variance exists.
C. The decision exceeds the authority of the Board under
General Laws Chapter 40A and/or the Salem Zoning Laws,
including without limitation, M.G.L. Chapter 40A § 10.
d. The Plaintiffs have standing to bring this action as
parties in interest, abutters, and/or otherwise. A copy
of the "Certified Abutters List" prepared by the City of
Salem, is attached as Exhibit "D".
e. Plaintiffs are aggrieved parties on the basis of
specific harm, which harm includes (without limitation)
devaluation of their property and loss of sight/view
which will be occasioned by the proposed construction.
f. The Defendants Cook have failed to file proper plans as
required by law, and/or by the City of Salem or
6
otherwise.
9. Any and all plans filed at, or subsequent to the
Hearing, including without limitation a copy of a
certain plan of land prepared for John W. and Cynthia
Hutchinson dated September 5, 1991, was otherwise not
timely filed and not available for inspection or viewing
at the Hearing, and may not be made a part of the record
at the trial of this matter.
h. The decision of the Board was arbitrary and capricious.
32. The Salem Zoning Board has exceeded its authority, and/or has
otherwise committed an error of law.
33. The Salem Zoning Board decision should be annulled.
35. The property owned by the Defendant Cooks fails to satisfy all
lawful criteria as required to support a variance.
36. The Defendants Cook, and/or members of the Board and/or the
City of Salem, failed to comply with the Rules and Regulations of
the Zoning Board of Appeals of the City of Salem, and/or the
General Laws of the Commonwealth of Massachusetts.
37 . Plaintiffs hereby seek to annul and/or reverse the decision
of the Zoning Board of Appeals .
COUNT I
(General Laws Chapter 249 § 4)
38. Plaintiffs repeat, reallege and incorporate herein,
specifically paragraphs 1-37 as if restated.
7
WHEREFORE, the Plaintiffs respectfully request, under General
Laws Chapter 249 § 4, that this -Honorable Court issue an order as
follows:
A. Annulling the decision of the Zoning Board of Appeals;
B. Reversing the Decision of the Zoning Board of Appeals;
C. order costs of this action;
D. Find that the Salem Zoning Board of Appeals exceeded its
authority, and/or otherwise committed an error of law.
E. Such other orders as this Court deems appropriate.
COUNT 11
(General Laws Chapter 40A § 17)
40. Plaintiffs repeat, reallege and incorporate herein,
specifically paragraphs 1-39 as if restated.
, WHEREFORE, the Plaintiffs respectfully request, under General
Laws Chapter 40A § 17, that this Honorable Court issue an order as
follows:
A. Annulling the decision of the Zoning Board of Appeals;
B. Reversing the Decision of the Zoning Board of Appeals;
C. order costs of this action;
D. Find that the Salem Zoning Board of Appeals exceeded its
authority, and/or otherwise, committed an error of law.
E. Such other orders as this Court deems appropriate.
Plaintiffs,
George Kardene
Carol A. Kard etz
eir Att ney,
By Th E
LA
Date CARMEN A. FRATTAROLI
BBO No. : 177960
76 Lafayette Street
Salem, MA 01970
(508) 740-9501
8
APPEAL CASE NO
Paurb Oj —!k
To THE BOAXD OF APPEAL,
T5* UOdOrslgood repnnac Chat he/she is/an he on.n
LOCand sc.-..!!�ZoYWldw Assume conaft Panel of l4d
.......... ............Street.
and . ZOOLOS Diattlec...
"'! Pa"41 Ls affect" by S ..is,(.) .................
Stan SolldLog-cad.. ................... Of the ",2'achasocto
Plate doscriblug the "Ork PI.Pand h. base wAd,nd the Ln,"ecor at widiv
'a "tenant Olcb Son"a El A.1 Of the 24MIM8 OL-114-4.
V6
vir"t Appeal
L'i
in
to
The Appl",,"s, for to
c eas desiod by am Lmosoccor of AftudI.Be far B4 tOusedes
Dir"t Appeal
The ua"nlp od 60"by PGCItUm Cho Board Of Appeal " n'T ch@ tons at Ch. XLU.
zO,,,g
4,P.O,r,4,i=PPLOLoodellor the hau"S Cos. am 0.4., Cho Lawpecc�Of &,LUUV to
m fee . to bodU " ILI". do Cho oatenesses, of '"d
b Zottal ar4on 80d SmIldAnd; Code %,as" Latel" Vnept, "ftLctat? of
ansUp 'a the 00donl6wed sawl raLL&f my be gweand �amewy
L free the latest Mad Purpose, at ch. 2.ojaS oft,. "thost 4N*Rr�ciaLl? data""
as notate, 4" "LIAS" Code for ch, fames,
Patitloher requesto a TaTimum:& free, 41A4
tbftk to U" m o"Itlat,
Bases.Robwt S RI&I" Cook
..................................
Address.
T41.pb�..74"jf
patIctomer SAM
Ban... Address.................................
By...
Three Copies of the 8"LLVAtimm, most be L'LIW Ih Ch. Seare
Vltb a shook. far 'd""Isles 1, am C1137 Of the Board of Appa
ad ab.bomme.w&&"a". tissues: of S............. f~weeks War to the
Check payalu to C& A:zaa,1",Iw Seats.
:i",e-v
cu"
at
NOW
7:1
�Z; t,�
4111_i� Q�
Ir
IN
MIT suval a- 7
W i7i
jp
!y,Not
W ,,to
LIM , fU�
..k0,
-vlllllikllw��
1�,,oo
13
F,7;
ww
PI
"OLE
AM
('gitq of
Paurb of �ppeal
THE FOLLa4ING RULES ARE ADOPTED BY A VOTE OF MEMBERS OF THE BOARD OF APPEAL IN
ACCORDANCE WITH THE STATE BUILDING CODE, AND THE MASSACHUSETTS GENERAL LAWS,
CHAPTER 40A.
1. All applications must meet with the requirements of the rules noted in
paragraphs 2, 3, 4, and must be accompanied by the required fees. NOT UNrIL
the application and fees are received by the Clerk of the Board will the
application be considered to be placed on the agenda. There is a first come,
first' servecl basis, all applications will be. time stamped to insure priority.
2. All applications to the Board shall be filed in triplicate on the forms furnished
by the Board and must include all information regarding any previous applications
to Board, granted or denied, relative to the subject property.
3. In addition to the application, the petitioner must furnish the following:
Three (3) copies of a CERTIFIED Plot Plan, scaled and dimensioned, showing
the owner's name, the street and number of the property, parking spaces
available for the requested use, residential/cannercial, also, all existing
structures and location of any proposed work. In addition to the plot plan,
include three (3) sets of accurate, scaled drawings in accordance with the
City of Salem Building and Zoning Codes, showing all work proposed.
4. The Building Code requires that all construction plans, other than one or two fami
dwellings must bear the stamp of a Professional Architect or Engineer, registered
in the Commonwealth of Massachusetts, and approved by the Building inspector.
One and two family dwellings only; may be prepared by a person. whom the Building
Inspector deem competent, other than a registerd Architect or Engineer.
5. All decisions of the Board of Appeal are filed in the Office of the city clerk,
no building permits, etc., shall be issued until twenty (20) days from this filinc
have passed and no complaints (appeals) made.
6. A public hearing is held for all applications to the Board and the petitioner or
his representative is expected to attend said hearing to present his petition.
7. All required smoke detectors mist be certified by the City of Salem Fire
Department-
8. It is the responsibility of the petitioner to make certain of the accuracy of
the petiticn and the required plans.
9. REMINDER: the applicant shall advise the Board of any reg Rr!ances
or Special Permits made for the property in question and tneuVionotak
of Salem, 'Massadlusetts
Paurb af Atrynd
July 9, 1996
TO ALL APPLICANTS TO THE BOARD OF APPEAL
Dear Petitioner:
Before the Zoning Board of Appeal can accept your
application for a Variance, Special Permit or
Administrative Ruling, all items noted on the attached
instruction sheet which is given to you along with your
application forms must be complete. Incomplete
applications or incomplete plans will. not be accepted by
the Board of Appeal .
The Board of Appeals also is only taking the first
ten ( 10) applicants . Once the agenda is complete with ten
applicants we can no longer accept any more.
Please take the time to read the enclosed pages .
Should you have any questions or need any assistance the
Zoning Enforcement Officer or the Clark of the Board will
be glad to help.
Gary Barrett
Chairman
f
NO ��ATES CHECKS PLEASE
TEE SCHEDULE TOR BOARD OF A?PEAL
All requests for Special Permits or 'w'ariances will
require a fee for advertising notices of hearings to The
4Zalem Evening �Iews for ;121 . 26 ( Payable to Salem Evening
Vews ) .
2 . All requests for Special Permits or Variances will
require the fee for a Certified Copy of the Decision to
::he City Clerk Oor r. Payable to C., ty of Salemi .
3'. All requests for Special Permits of Variance will
require the fee for "e Recording :he Decision co the
Registry of Deeds For $10 . 00 ( Payable to Registry of
Deeds ) .
4 . All requests "or Special Permits or Variances will
require the filing 'lee of S75 - 00 for the Board of Appeal
'Payable to Board of Appeal ) .
Requests for Special Permits or Variances which will
�-ncrease the number exist4ng dwel' ;ng !;nits at a
property will involve an additional ee of i50 . 00 for each
additional dwelling unit which is requested up to a
maximum of �:500 . 0o. which fee will be refunded :.f zle
request is denied . Payable to Board 3L- appeal ) .
5 . Where Special Permits or Variances are requested of
'Iew construction of dwelling units . a fee or S50 . 00 per
dwelling unit will be charged to up to a maximum of
5500 . 00 whic� wil! be refunded if the request is denied.
( Payable to City of Salem Board of Appeal ) .
7 . The fees ( numbers 4 ,5 . 6 ) will be waived if the city or
agency of the city is the petitioner ,
T
j
E7 T 1 E;'T
V
ei n F.
Sullivan
Comments to the Board of Appeal from the Fire Department are the result
an inquiry made on the property in question relative to compliance with
the laws. ordinances, and regulations pertaining to Public safety.
Under the provisions of Chapter 148. Sections 26C and 26E. Massachusett-
General Laws. all residential properties are required to be protected by a-
system Of automatic smoke detectors. Those properties which do not
conform with these provisions are technically in violation of the law.
In many i-ases however. homeowners have installed the required smoke
letectors. but have never arranged for an inspection by the Fire
Department. The Fire Prevention Bureau maintains a file of properties
which have been inspected and are in compliance with the law. A check
this file is made as the basis for comments prepared for submittal to the
Board of Appeal.
In cases where relief of the Zoning Ordinance is requested of the Board
for decks. Porches. Pools. and items which appear to be unrelated to the
recuirement for smoke detectors. it is often made a condition that the
appellant contact the Fire Prevention Bureau and obtain compliance before
the issuance of a Building Permit by the Building Department. 7he reason
ror this is that the dwell�ing on this propertv is nor recorded as having
.-omPliance with this law.
The procedure in obtaining the required compliance is quite easN*. An
appointment is made for a fire inspector to visit the property, conduct a
brief inspection. and issue a "Certificate of Compliance". indicating that
the property is in compliance with the requirements of the law. This
inspection may take five to ten minutes at most.
Over the past few y
ears, many homes which otherwise would not have beer
P60tected by smoke detectors have become safer through this policy. It i-
a proven fact that smoke detectors do save lives.
Should You require assistance in locating Your smoke detectors. or would
like help in anY fire prevention area, please call the Fire Prevention
Bureau during normaf business hours, and an Inspector would be more tha
wilung to assist you.
..........
1� NYA
=A
0-71,
"�w n"Nov A" e
hw�l W.
OM~a
_112W
I Ll
vW off
VW WT MA,
A-M
n
WWA
�v
9W
w'w
ya
OWN,
VAT
'Y' .'4
W Q
Wn,
_:J A 0*7 Visa
of ialem, 2 DI lqi
eITY OF SALEM. MASS
C.ITY OF SALM HA" Poarb of �kppeal CLERK'S OFFICE
CLERVI' FICE
DECISION OF THE PETITION OF ROBERT & ELAINE COOK REQUESTING A
VARIANCE FOR THE .PROPERTY LOCATED AT 42 BAY VIEW AVENUE (R-1)
A hearing on this petition was held November 19, 1997 with the following
Board members present: Gary Barrett, Chairman; Nina Cohen, Albert Hill, and
Richard Dionne. Notice of the hearing was sent to abutters and others and
notices of the hearing were properly published in the Salem Evening News in
accordance with Massachusetts General Laws Chapter 40A.
Petitioner Tequests a Variance from side setback to allow an addition for
the property located at 42 Bay View Avenue.
The Variance which has been requested may be granted upon a finding of this
Board that:
1. Special conditions and circumstances exist which especially affect the
land, building or structure involved and which are not generally affecting
other land, buildings, or structures in the same district.
2. Literal enforcement of the provisions of the Zoning Ordinance would
involve substantial hardship, financial or otherwise, to the petitioner.
3. Desirable relief may be granted without substantial detriment to the
public good and without nullifying or substantially derogation from the
intent of the district or the purpose of the Ordinance.
The Board of Appeal, after careful considerations the evidence presented at
the hearing, makes the following findings of fact:
1. The petitioner Robert Cook appeared and presented the plans for his
proposed -addition. He would like to bump out the kitchen area 4 feet
to give them additional space for their kitchen. Said addition will
not change the foot print of the existing structure.
2. Cynthia Hutchinson, 44 Bay View Avenue appeared and spoke in favor of
the petition.
3. Attorney Carmen Frattaroli, 76 Lafayette Street representing Carol and
George Kardenetz of 38 Bay View Ave. opposed this petition due to the
fact that they were not able to view the plans prior to the hearing and
said proposed addition would interfere with their ocean view. -
4. The plans were available for review and time was made to go over
the proposed construction of this property.
On the basis of the above findings of fact, and on the evidence presented
at the hearings, the Board of Appeal concludes as follows:
1. Special conditions 'exist which especially affect the subject property
and not the district in general.
2. Literal enforcement of the provisions of the Zoning Ordinance would
involve substation hardship to the petitioner.
DECISION OF THE PETITION OF ROBERT & ELAINE COOK REQUESTING
VARIANCE FOR THE PROPERTY LOCATED AT 42 BAY VIEW AVENUE
page two
3. Desirable relief can be granted without substantial detriment to
public good and without nullifying and substantially derogating from
the intent of the district or purpose of the Ordinance.
On the basis of the above findings of fact,- and on the evidence presented
at the hearing, the Zoning Board of Appeal voted unanimously, 4-0 to grant
the variance requested, subject to the following conditions: -
1. Petitioner shall comply with all city and state statures, ordinances,
codes and regulations.
2. All construction shall be done as per the plans and dimensions
submitted and approved by the Building inspector.
3. All requirements of the Salem Fire Department relative to smoke and
safety shall be strictly adhered to. ,
4. Petitioner shall obtain a building �p-eirmit prior to beginning any
construction.
5. A Certificate of Occupancy is to be ,lobtained.
6. Exterior finishes of the new construction shall be in harmony with the
existing finishes.
Variance Granted
November 19, 1997 n C',
: ,,Albert Hill," Member
Board of Appeal
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY
CLERK t-x
Appeal from this decision, if any, shall be 'made,pursuant to Section 17 of
the Massachusetts General Laws Chapter.40A, and shallbe filed within 20
days after the date of filing of this decision in the office of the City
Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section. 11, the
Variance or Special Permit granted herein shall not take effect until a
copy of the decision beating the certification of the City Clerk that 20
days have elapsed and no appeal has been filed, or that, if such appeal has
been filed, that it has been dismissed or denied is recorded in the South
Essex Registry of Deeds and indexed under the name of the owner of record
or is recorded and noted on the owner's Certificate of Title.
C'J
Board of Appeal
A TRUE C 0 F1 ATTEST
Fz
Cily CLERK
IALIM, MAIL
to
wl�
44,
-I RZ
jiy
w NA
g,�
Awe
"VI ,�m
Ij
l! Al�
�33
",�%�A k
"Wr
..W rfl-A
w
117
14�
v�;q
fy�
nxn-RVA,T-M,46
Ru?
woma
wa,
MIAMI, TIP ASSKSAIINS
'TTY HAr.E. PACK:
4AI.RM, MA al"A
-ATR 10/2�147
CRIFITMED ABUTTERS LIST
SUBJECT PROPERTY: MAP:--44-- U)T?llflI4-,r---snrv�----
PP(IPKRTY AUnRKSS: (1442 SAY VTP.W AVRMIIIC
A88F-qSRn OWNER I INTUIT R0RRRT J
---r.nnx-WMTN
4AP LOT STIPP PROPERTY ADDRESS ASSESSED OWNER KAICANG ADDRESS
44 0143 11042 BAY VTRW AVENUE COOK RCIRRRr 1 42 DAY VTRW AUK
CWK RLAXNR SAI.RM MA 411)7t)
oo-;A -Q09Z-CnLHMRII.q-AVRXffT-----r.ATX-lWrr.rTAM-r'TTr- q2 MT,UMRU.q AVR
IIA[-T.TS W SAI.RM MA (11470
4A 0054 0043 BAY (ITRW AVENUE RRrAN T"nMAS e. 4.1 PAY UTRW AVR
RATRM*RA 0141711
44 (IL41 UTTAR BAY VIEW AVRMTIR '.I#Tr44RT KRMMRTR P ILA RAY VTRW AUK
GIIrfART PKTROMA IT SAr.Km MA nt'170
44 (1142 ---WAS-SAY--UTRW-AVRNTTW----------FM RAY.VTP.W AVR
CVWTRTA SAT.KM 14A OMIT
44 0144 (16301 PAY TITAN AVRNIIR NARr)RNRTX CAPOI. A ITT MAY VT" AVR
ARVffffRT�F-K qAT;RM-KA-nI97(l**'-
44 11145 OU3O SAY VT9W AVENUE DUnA RIIGRMH A 30 RAY VTRW AUK
MARY G SAF.RM 14A OMIT
-44-nl 4#r I SAT.RN ORRRM-
SA69M MA (1147(l
-------------
W:- I v,
Ix-
A-IN
SM
AW"
VA;w,
V .P
ILAj�a
0",
SEE INSTRUCTIONS ON BACK OF THIS FORM
PLEASE TYPE OR PRINT EXCEPT WHERE SIGNATURE IS REQUIRED
Trial Court of Massachusetts zk DOCKET NUMBER
CIVIL ACTION COVER SHEET SUPERIOR COURT DEPARTMENT
ESSEX Division 19 '-If 7--;23SL)
PLAINTIFF(S) 1,�J :DEFENDANT(SI -ROBERT J. COOK, ELAINE E. COO.K,
GARY M. BARRETT, NINA V. COHEN, ALBERT C.
CAROL A. KARDENETZ, GEORGE KARDENETZ HILL, JOSEPH YWUC, RICHARD E. DIONNE, ARTHUR
ATTORNEY(S)FIRM NAME,ADDRESS ANoT.E WIN1150)l i� F,. CITY arL S-Al
A17ORtf_'A9Fi(
CARNEN A. FRATTAROLI ��,978-7409501,
A
76 LAFAYETTE STREET
!o
BoWIRIBAAWS # (Required) 177960
-ORIGIN COW
151" %'A DESIGNATION
X Place an 19 in,prig box�oqly: r0 7 tqj bric, '"Oe �bnc
simernmc-
L" 91 1. Fol s Origin Corn nt.,n.
-. 41 _pIw El 4. F04 Disbid'dt. A�peai d23!1-;4'S.:07 M3e,�t)! 10
v 0 2. F02%.Removal.-tp Su -Ct;-c2al, s. 104 (F)
Mi 115. F05 ReicilVated'ifter Rescript;.Rdflbiliidrh::�
0 3. F03 Retransfer�W.Sup-..-Cl.-c231, s. 102C (X)
Judgmentlorder (Mass. R Civ. P. 66'W,�'
0 6. E10 Summary process appeal (X),
TYPE�OFACTION AND TRACK DESIGNATION (See Reverse Side)
. . - I I It I vl�,-..; - � 1 .t !�- _* �
CODE NO'. -TYPE OF.-ACTION (speclfy)� ii1A yi�
A JURY CASE?
C(6
C3. Yes -' No
1. PLEASE GIVE A CONCISE STATEMENT OF THE FACTS: (Requivid In A.L.L Types of AFUons I
7-
THIS-IS AN APPEAL OF:A GRANT OF VARIANCE BY THE SALEM ZONING BOARD.
3:' 3 :3
2. IN A CONTRACT ACTION (CODE A) OR A TORT ACTION (CODE B) STATE, WITH PARTICU w_ 11TY. -
MONEY DAMAGES WHICH WOULD WARRANT A REASONABLE LIKELIHOOD THAT RECOWRY''�
'M 3�
ULDP 4251000: 10 T
vlC�T3A 7,0 3q!T .0 CC)-
N/A A
95: 13JUA TRU�: Fi�
mtlm��%;:; r ia�f 73!�; nc A1104 �-32 -0 YTUCI
Q 9;�. .jq 34T 3
L
::cz A .eC-Cz;T_1,b
. k_ �', 1�
3.-, PLEAS00161TIFif,'4V COE WMbEW; NAMeAND:DnA§ION,'ANY RIELATE61CTION PENDIRGF`�;1_13 s '!
IN THE SUPERIOR COURT DEPARTMENT. 3!u.;:! nz cebw.-
04 �,;�jcr!F, T1AA-*3;i3:13C 3HT �OYTUO
ni ltdr�,�iq s,�: I
DATE
OFFICE USE ONLY DO NOT WRITE BELOW THIS LINE
DISPOSITION tRECOMII M
c
L
A. J ment EnteredAIAjqMO3 HOA31 HTIW (33Jr-3 38 T8)INd-3&)ft6ffaTeM6I JI 1-�)
TOA
0 1. Before jury trial or non4ury hearing D6.Transfarred to District 014ff E
0 2. During jury VW or non-jury hearing Court under G.L. c.231,
0 3. After juft_XVddU0aA GOA YJHDUORO14T T33M R3VOI&IOW.MAM03 OT EINTERED
of $a1em, Aussadjusetto
DECEMBER 3, 1997
YOU ARE HEREBY NOTIFIED THAT AS OF DECEMBER 3, 1997 THE DECISION OF
THE BOARD OF APPEAL HAS BEEN FILED IN THE OFFICE OF THE CITY CLERK TO
GRANT THE PETITION OF ROBERT & ELAINE COOK REQUESTING TO A VARIANCE
FOR THE PROPERTY LOCATED AT 42 BAY VIEW AVENUE.
PETITION GRANTED
BOARD 0
APPEAL
SALLY C. tAGH
CLERK OF THE BOARD
,4
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY
CLERK.
Appeal from this decision, if any, shall be made pursuant to Section 17, of
MGL Chapter 40A, and shall be filed within 20 days after the date of filing
of this decision in the office of the City Clerk. Pursuant to MGL Chapter
40A. , Section 11, the V-ariance/Special Permit granted herein shall not take
effect until a copy of -the decision hearing the certification of the City
Clerk that 20 days have elapsed and no appeal has been filed, or that, if
such appeal has been filed, that it has been dismissed or denied is
recorded in the South Essex Registry of Deeds and indexed under the name of
the owner of record or is recorded and noted on the owner's Certificate of
title.
Board of Appeal
of
�Rozzrb of '��eal 3 2
CIT'
C� f'�'ws'W- �iA S S
DECISION OF THE PETITION OF ROBERT & ELAINE COOK REQUESTING A
VARIANCE FOR THE PROPERTY 'LOCATED AT 42 BAY VIEW AVENUE (R-1)
J
A hearing on this petition was held November 19, 1997 wi th the following
Board members present: Gary Barrett, Chairman; Nina Cohen, Albert Hill, and
Richard Dionne. Notice of the hearing was sent to abutters and others and
notices of the hearing were properly publ-Ished -1r, the Salem Evening News -in
accordance with Mlassachusetts General Laws Chapter 40A.
Petitioner requests a 'Variance from side setback to allow an addition for
tile property located at 42 Bay View Avenue.
The Variance which has been requested may be granted upon a find-Ing or this
Board that:
1 . Special conditions and circumstances exist which especially allect the
I
land, building or structure involved and wil-Ich are not generally affecting
other land, bu-Ild-Ings, or structures in the sarie distrIct.
2. Literal enforcement ol the provisions of the Zoning Ordinance would
involve substantial hardship, 1-Inancial or otherwise, to the petitioner.
1 . � -ra'le re'-ef may be granted without substantial detriment to the
J Desi U Il I
public good and w1tilout nullily-Ing or substantiallY derogation irom tile
intent or tile district or ne purpose of the Ordinance.
ihe Board ol Appeal, after careful considerations the evidence presented at
U
-the hearing, makes the lollowing findings oil fact:
1 . The pet-Itioner Robert Cook appeared and presented the plans for his
proposed addition. He would like to bump out the kitchen area 4 feet
to give them additional space for theIr kitchen. Said addition wIll
not change the loot print of: the existing structure.
2. Cynthia Hutchinson, 44 Bay View Avenue appeared and spoke in favor of
the petition.
3. Attorney Carimen Frattaroli, 7/6 Lafayette Street representing Carol and
I
George Kardenetz of 38 Bay View Ave. opposed this petition due to the
fact that they were not able to view the plans prior to the hearing and
s id proposed addition would interfere with their ocean view.
a-AU 1 1
4 . The plans were aval- lable lor review and time was made to go over
the proposed construction of -this property.
On the basis of the above lindings of lact, and on the evidence presented
at tile llearings, tile Board of Appeal concludes as follows:
1 . Special conditions exist which especially affect the subject property
and -not the district in general. I
Literal enforcement of the provisions of the Zoning Ordinance would
involve substation hardship to the petitioner.
DECISION OF THE PETITION OF ROBERT & ELAINE COOK REQUESTING
VARIANCE FOR THE PROPERTY LOCATED AT 42 BAY 'VIEW AVENUE
page two
3. Desirable relief can be granted without substantial detri-ment to
publ-Ic good and witilout nuilliving an"' substantially derogan-rig froff,
tile intent of the district or purpose oi the Ordinance,
On the basis of the above findings of fact, and on the evidence presented
at the hearing, the Zoning Board of Appeal voted unanimously, 4-0 to grant
-the variance requested, subject to the following conditions:
1 . Petit-loner shall comply with all city and state statures, ordinances,
codes and regulations.
2. 'All construction shall be done as per the plans and dimensions
submitted and approved by the Building inspector.
3. All requirements ol the Salem Fire Department relative to smoke and
safety sliall be strictly adhered to.
1 . 1 ` t`oner sha" obtain a building permit prior to beginning any
Fen 1 11 L 11 1
construction.
J . A Certlllcat6 ol Occupancy -is to be obtained.
6 . Exter-lor finishes ol the new coristruct-lon sliall be in Harmony with ne
existing finishes .
Variance Granted
1.
,November 19 , 1991 a
Albert Hill, tMember
Board ol Appeal
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY
CLERK
Appeal from this decision, if any, shall be made pursuant to Section li of
'the Massachusetts Generai Laws Chapter 40A, and shall be filed within 20
days after the date of filing ol this decision in the office of the City
Clerk. Pursuant to Massacilusetts General Laws Chapter 40A, Section 11 , the
Variance or Special Per-mit granted herein shall not take effect until a
copy of the decision bear-Ing the certification ol the City Clerk 'that 20
days have elapsed and no appeal has been filed, or that, if such appeal has
been fliled, that It has been dismissed or denied is recorded 'in th6 South
Essex Registry of Deeds and indexed under the name ol the owneral r-�ticord
or is recorded and noted on the owner's Certificate of Title.
Board of Appeal
,p C)
ww
f 1�4
tA R
AXN 04,140
Cot
.na K,,
ii 7
it
.��W-gv
W
g'M j
,im
PMI,
lie
LEE
NPWW
F5�-- F-
Wilt
im
o7i
C=
Bay 508-526-8161
View
Builders
P.0 Box 764 Atwater Ave. Manchester MA 01944
CD
0
m
x
0
cr CD
rL
0)
CL
06
CL 0
L-77]
0
m
r-
5'
CD
m
a3
CD CL
CL CD
0
cz 0
:3 3
co (D
F---77--j
ILI--'Ij
m
x
CL
CD
0
7r
Bay
508-526-8161
View —
pj Builders
P.0 Box 764 Atwater Ave. Manchester MA 01944
x
Ilk
:3
(C)
=r
0
3
x x m
x
CO)
cn cr CC)
CL CY
0)
cn 0
0) CD x
CL =r
Q-
Q-
CD
0
x
CD
CL
0
x
Ua
=r
0
CD 3
x
>
CL
CL
Bay 508-526-8161 C�gh,1997B,Vi.D.Ad.
R�D.W� d
LY View
Builders
P.0 Box 764 Atwater Ave. Manchester MA 01944
CIO
4 0
L
7�'
F),
m
7IZ
m
>
- --- - --- - --- - -- -- -- --
3AI�jd 401-LOH
Bay 508-526-8161
CIO View
Builders
P.0 Box 764 Atwater Ave. Manchester AM 01944
7-
X.
:S
t7l
7K
- -- - - -- ---a--
77
Bay 508-526-8161
View
CI Builders
P.0 Box 764 Atwater Ave Manchester MA 01944
I
U
y
h Coo�'QPM F,,JUI�'
s
/
/
+ i /^
N1� NARK R
1 �N6 E LOCUS MAP
PRS AIOT ro 5"4-E
Wa
tc
1
LOT /
/ joo
440/7' 2
� N I I'dAA �3 �` -J
/
ppb
E�
1 CE! j/fY TNAT PIC P440PERTY L/,UES PL Q Al OF LQ/v19
�O 5f/OWA/ ,4RE 7WE LIMES 12/VIPIA16 6:YJ$7
O/ /A16 OWAACR611IR514,C/O j/VE L/,UES 01"r ^56RJjFl/ 7=D,5
374EAET5 .41.119 WA116 SNOWd/ A4E TNO5f ! , /, L ` '
Of PU,dL/G 04 Ofd/VAJE 5j/�EETS OIC WAy9 ��I�N W. �j .rAl x111A H UTC&AIM V
E GE 6 QAI E FSY SALE ( Al EAPY b-67 / l/SNEO1 JAW N0 NEW L/,UES ` LOCAjE/9 /A/
I GEfjj/FY jHAr j.�//h PLQ�t/ CO�l1F0lf l/5 j0 h E VAR/aN g r D f0 D/V/5/D� Of EyG/5j/�(/6 OW,VEl�S/1/P D!� AA CC , / ^
PLAN BOOKA1
� PLAN j/lE f OL E6 � �EGUZAIWA/5 Of j!!E Z0WA/6 �oQ�D OF �1PPEt1L5 GATED FOR NEW WAY6 Al E 590WAI hH L G ,U ,(•1A
_d�1�_—�3 /i£6/5jEl 6 Of DEE06. C Lj � SEPTEMP�EI� 4, l99 / fjEGOfj/�E7� Au
ESSEX REWI lNY OF DEEDS, SO. DIST. — '� ' +
M, MASS. OFFICE OF c/rY c�E�K . GI�GPjEf� 380 �eCTS Of ./9��, hGdL£ � ./"'=,/0' SEPr' 5 /99•/ ',
coved ..- . --�-�.. 19,_�" ZOAlIA167 1M
TL
WilCl9Wl, ��(; 600/>W/,(/ 6UfjVEY CO.,1A1C-
95 L/`SE/j jY
H1uS1�1�1 .455E550,J6 % ,U.4P Q4 LOj5 /4?, /43 �- 1011A1 A. 6000W/,U, P. L ,6;,. �
Rec. BLMp �•;
guest: PLGR/ `f�EfEf�EA/GE t E.5!>R.b. #456 OP,/976 FEEIr
DEE•o;.I�EFE�EtiCE f E.S.D.R.b. Ao�. 747 P6. 56/
p "
5 /0 20 40 60
Register of Deeds
1 1 1 1 1 1 1 I
5
____ - _. _ -.__ _...... , --.. _ -_.."`Twn...nq•.m—'tea..--r. .... i