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9 BELLEAU ROAD - ZBA 9 Belleau Rd. R-1 { Lionel Michaud Petitioner Bruce Bornstein Owner / (` Citp of 6atem, OngacbUgettg Public Propertp Department �3uilbing Department One 6alem grern 745-9595 CA. 380 William H. Munroe Director of Public Property Inspector of Buildings Zoning Enforcement Officer January 7, 1991 Kevin Daly, Esq. City Solicitor City of Salem RE: 9 Belleau Road Dear Mr. Daly: Please be advised that the deck at 9 Belleau Road has been brought into compliance with the City of Salem Zoning Ordinance setback requirements and the Certificates of Occupancy on permits number 1020, 1154 and 1231 have been issued as of January 3, 1991 . If you have any questions relative to this matter, please call me. Sincerely, ,5ames D. Santo Assistant Building Inspector JDS:bms L_ CITY OF SALEM - MASSACHUSETTS KEVIN T. DALY Legal Department LEONARD F. FEMINO City Solicitor 93 Washington Street Assistant City Solicitor 508-745-0500 Salem, Massachusetts 01970 508-921-1990 March 5, 1990 James M. Fleming, Chairman Board of Appeal City of Salem One Salem Green Salem, MA 01970 RE: Bornstein_v__Board of_Appeal Dear Mr. Fleming : As we discussed in the recent executive session with the Board, I have reviewed the Superior Court docket of the Bornstein case . - A complaint against the Board and Mr . Michaud was filed on May 11 , 1988 . On May 17 , 1988 City Solicitor O' Brien filed an appearance on behalf of the Board of Appeal members only. Attorney O' Brien did not file an answer to the complaint , Mr . Michaud has never filed an appearance and the only other docket entry is Attorney Vallis ' affidavit of notice . There are several alternatives which the Board may now take in order to resolve this case . At your convenience, kindly have Brenda schedule a meeting where we can discuss this matter. Thank you for your attention to this matter . Very truly yours , KEVIN T. DALY CITY SOLICITOR KTD/rmj COMMONWEALTH OF MASSACHUSETTS ` ESSEX, SS. THE TRIAL COURT SUPERIOR COURT DEPT. CIVIL. ACTION NO. 88-1198 BRUCE A. BORNSTEIN, ) PLAINTIFF ) VS ) NOTICE OF WITHDRAWAL OF APPEARANCE JAMES HACKER, JAMES FLEMING, ) RICHARD BENCAL, PETER STROUT, ) AND EDWARD LUZINSKI, AS THEY ) ARE MEMBERS OF THE BOARD OF ) APPEAL OF THE CITY OF SALEM, ) DEFENDANTS ) To the Clerk of the above named court: Kindly enter my Withdrawal as attorney for the defendant members of the Salem Board of Appeal. This notice is to be accompanied by the Appearance of Successor Counsel as provided for by Mass. . .Rules of Civil Procedure 11 (c) . Y �---Michael E. O'Brien, Esq. 81 Washington Street Salem, MA 01970 Telephone ( 508) 744-3363 BBO#376035 Dated: January 2 , 1990 Certificate of Service I, Michael E. O' Brien, hereby certify I served the attached Notice of withdrawal upon all parties to this action by causing a copy of the same along with a copy of the Notice of Appearance of Successor Counsel to be forwarded first class mail, postage paid, to the following: Leonard F. Femino, Esq. City of Salem 1 School Street Board of Appeal Beverly, MA 01915 One Salem Green Salem, MA 01970 John G. Vallis, Esq. Lionel J. Michaud One Church Street 21 Belleau Road Salem, MA 01970 Salem, MA 01970 I further certify to the best of my knowledge there are no motions now pending before this court and no trial date 1} s been set. Signed under the pains , and penalties of perjury this _day of January, 1990. i M" 'ael E. 0 Brien COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. THE TRIAL COURT SUPERIOR COURT DEPT. CIVIL ACTION NO. 88-1198 BRUCE A. BORNSTEIN, ) PLAINTIFF ) ) VS ) NOTICE OF APPEARANCE JAMES HACKER, JAMES FLEMING, ) RICHARD BENCAL, PETER STROUT, ) AND EDWARD LUZINSKI, AS THEY ) ARE MEMBERS OF THE BOARD OF ) APPEAL OF THE CITY OF SALEM, ) DEFENDANTS ) To the Clerk of the above named court: Kindly enter my Appearance as attorney for the defendant members of the Salem Board of Appeal in the above matter. onard F. Femino, Esq.. one School Street Beverly, MA 01915 Telephone ( 508 ) 921-1990 Assistant City Solicitor Dated: January 2 , 1990 a rmixrt� JOSEPH F. COLLINS �r w; S LEONARD F. FEMINO ASSISTANT CITY SOLICITOR �i — J ASSISTANT CITY SOLICITOR 93 WASHINGTON STREET R!'rl,my,t+. 93 WASHINGTON STREET AND CITY OF SALEM - MASSACHUSETTS AND 22 SO. MAIN STREET MICHAEL E. O'BRIEN ONE SCHOOL STREET TOPSFIELD, MA 01983 BEVERLY, MA 01915 745-4311 CITY SOLICITOR 745-4311 93 WASHINGTON STREET 887-6401 AND 921-1990 PLEASE REPLY TO 22 SO. MAIN STREET 81 WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET SALEM, MA 01970 745-4311 744-3363 -� n r PLEASE REPLY TO 81 WASHINGTON STREET { r:3 November 10 , 1989 a James M. Fleming, Chairman "' G3 Board of Appeal City of Salem One Salem Green - r Salem, Massachusetts 01970 n u' rn cn Re: Bornstein v Hacker, et. als . Essex County Superior Court #88-1198 Dear Mr. Fleming: In connection with the above matter, enclosed please find copies of the following: 1. Amended decision of Board of Appeals 2 . Complaint 3 . Section VIII D. 1. of the Zoning Ordinance 4 . Plot Plan of Land dated August 24 , 1989 5 . Proposed Stipulation of Dismissal and Entry of Judgment. It is my opinion that the above entitled Appeal has been rendered moot by reason of the September 18 , 1989 zoning amendment relative to non-conforming structures . The basis of the Board ' s administrative decision is that the new structure (addition and side deck) exceeded the 30% lot coverage as set forth in Table I of Section VI of the Zoning Ordinance and the ten foot side yard requirement of the same section. A review of the enclosed plan shows that the addition and plan do, in fact, meet the minimum requirements . In addition, the September 18 , 1989 amendment clearly mandates that an enlargement or alteration of a non-conforming structure is permissible provided the density requirements of Table 1, Section VI are adhered to even though lot area and width are non-conforming. It is deserving of note that Section VIII D. I. provides that increases in height of non-conforming structures now require an applicant to avail himself of the special permit procedure outlined in Section VIII-F. However, it is my opinion that this is not applicable to the instant case because this non-conforming structures height limitation was inserted by a May 9 , 1988 amendment to the Zoning Ordinance. In the instant case the building permits were obtained in the latter part of 1987 and the Board of Appeal Administrative Ruling was handed down on March 30, 1988 , both being prior in time to the May 9 , 1988 amendment. Lastly, it should also be noted that there is a deck on the rear of the dwelling which is not noted on the plan. This deck apparently would put the property in violation of the rear set back and lot coverage requirements of the aforementioned ordinance. However, such is not involved in the existing Appeal and it is my understanding that the alleged violation is being pursued by the Building Inspector. Accordingly, I request that the Board authorize me to execute the enclosed as this matter has become moot and not a proper subject for judicial inquiry. Ver my yours , �-Mi hael E. O'Brien City Solicitor MEO/jp cc : Building Inspector SECTION VIII gNON C'ON F0R IT D To^.coafor''ln4 Structure which could not be built under n Where a structure exists reason of restrictions the ter^s of this Ord yard yard dimensions , or other area , lot coverage , height , or as it remains characteristics of tma sbeucontinuedlso long rovisionsts location on he lot , such structure Y others iso lawful , subject to the follo.:ing P be enlarged or altered in a way 1 I;o structure mai except as provided such which increases its nonconformity , _o- for in Section V111 - F. In addition. sick structure be increased in height , exceot ss nro:iae } structure used `or may not VIII However , if such . Section ' ' iii Cses CaL :�E clliuiyc.0 ^ le or two-family rESiicIItia+ N r front sing conformity w ur altered in ith the lot coverage, of rear yard and distance requirements ;ard, side yard :able 1 Section VI ( Residential Densit Regulations said enlargement of the structure ana iso tient or alteration shall not be deemed an the nonconformity width increase in h the lot area and lot permissible even though are non-conforming • any means to percent of its replace- 2 • Should such structure be destroyed y an extent of more than fifty p ercent of its floor ment cost , or more than fifty P area at the time of destruction , it shall not be reconstructed except in conformity with the pro- - visions of this Ordinance. reason for 'after conform it shall there 3. Should such structure be moved for any distance whatsoever , hich to the regulations for the district in wit is any located after it is moved. � � n m v�M C3D o .M 4 b _ o rte- ro a rn - r N o (� '• 85 "EXt118I'f' A" ru r r . .• . u ..� _ ( its ofttlrm, Cttss�cl�usetts FILEi OITY CLERK.tr,l EM. MASS. _ s �Bvzirb of � f211 AMENDED DECISION ON THE RULING9 PETITN OF LIONAU EL J .AD MICHAUD (PETITIONER) FOR ADN A hearing on this petition was held March 30, 1988 with the following Board Members present: James Hacker, Chairman; Messrs. , Bencal , Fleming, Luzinski ers nd notices and Strout. Notice of the published inaring was ntheoSalemtEvening Newsrinaaccordance of the hearing were properlyy pp with Massachusetts General Laws Chapter 40A. The petitioner, Lionel Michaud, is the owner ofthe trel issue property an which Administrative the subject locus. He requests. the Board of Appeal Ruling relative to the issuance of Building Permits by the Salem Building Inspector allowing certain construction to be performed on the property located at 9 Belleau Road which is owned by Mr. Bruce Bornstein. Mr. Bornstein was present at the hearing and was represented by Attorney John Vallis. Mr. Bornstein, by virtue of four (4) building permits, has altered the existing nonconforming structure at 9 Belleau Road by the addition of a second floor to the existing dwelling and existing garage. Furthermore, Mr. Bornstein haMrcon- structed an addition between the existing dwelling and existing garage. Bornstein has also added a deck to the existing building. Upon the request of a person withstanding, the Board of Appeal , after hearing, has the authority to make an Administrative Ruling relative efto the Building lding Inspector' s issuance of a building permit. If the Board of App eal permit was issued when, in fact, a variance or special permit was required, the Board may revoke the building permit. The Board of Appeal, after careful consideration of the evidence presented at the hearing, and after viewing the plans, makes the following findings of fact: 1 . The petition of Lionel J . Michaud was supported by a great number of abutters and others who live in the Belleau Roar, Brea. i',r, hau,auc nas Desmond Terrace and Rear West A'J enGE . standing to request an Administrative Ruling. 2. The new construction at 9 Belleau Road impacts the availability of light and air on the abutting properties. at 3. The new construction at 9 Belleau Road causes the new stre ( 30°0) , that locus to exceed the allowed lot coverage o: thirty percent as set forth in Table I of Section VI of the Salem Zoning ordinance . 4. The new construction at 9 Belleau Road causes the new structure at that locus to encroach further into the side yard than the existing nonconforming structure, in violation of the ten ( 10) foot requirement for sideyards as set forth in Table I of Section VI of the Salem Zoning Ordinance. On the basis of the above findings of fact, and on the evidence presented at the hearing, the Board of Appeal concludes as follows: AX::,,. _.. ALE. APIiIN1STFAT!''c RUL- FOR 4 BELLEA:• ROAD, paCE tWG 1 . Prior to the issuance of the existing building permits, a Special Permit or a Variance was necessary. The Building Inspector exceeded his authority by issuing the building permits for 9 Belleau Road. Therefore, the Zoning Board of Appeal voted unanimously, 5-0, to allow the ing oke the crequest fr urrrentlyoinaeffectnforrthevreallproperdtytatr9vBelleau Road. permits For the purpose of clarification, the Zoning Board of Appeal voted unanimously , at the April 209 1988 hearing, to amend the above paragraph to read as follows: Therefore, the Zoning Board of Appeal voted unanimously, 5-0, to allow the request for an Administrative Rug lin and to revoke building permits #1154 and #1231 currently in effect for the real property at 9 Belleau Road. ADMINISTRATIVE RULING ALLOWED BUILDING PERMITS #1154 & 41231 REVOKED Ames Fleming, Esq. Vice airman Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK ? T-: s ii�TI � LC? DVPvrS �r=Lq.N rµ� (f'cAN ,1+o of eZ--67- t4,4 2 4,47 3 z N D1 •7, 336'-• S,f; M r� i� 5.3 t I z s rY Ff26MC.^ M I G r'T /1 U-T::> I x7,','aCCiAJ� /0•li +I N ..� DUF=o o F<� pN T L{,$ Z �r•Y S wD FR. L'wFCCiN� ll N N_ y �C CCGAu 2 � 0 • v is,z .- 5.3 I S3. v is X9. .7/ of f155655bD LoT F( DT PLAN iNs�vH�r� s��✓cs'r a� OF LD�Ib IPl �,v� OF Occc//pA�T1aN fl-i.JT� • - r� O c— n .—, A KA A_ < C , I COMMONWEALTH OF MASSACHUSETTS ©� RECEIVEDv TRIAL COURT BRUCE A. BORNSTEIN, ) SUPERIOR COURT DH` .RTh1EiQ� OT .'88 MAY 1 1 P4 :01 CIVIL ACTION Plaintiff ) vs. CITY Cf.E�K' • OFFICE mac•� s� SAFE "•r S`; eco JAMES HACKER, JAMES FLEMING, ) COMPLAINT 'piP RICHARD BENCAL, PETER STROUT, ) cP and EDWARD LUZINSKI, as they ) �° are members of the Board of ) Appeals of the City of Salem, ) and LIONEL J. MICHAUD, ) ) i Defendants ) I 1) The plaintiff is an individual who resides at 9 Belleau Road, Salem, Essex County, Massachusetts. 2) The defendants, James Hacker, James Fleming, Richard Bencal, Peter i i Strout and Edward Luzinski, are duly constituted and regular members of the Salem Board of Appeals and are also individuals residing in i said Salem, Massachusetts. II3) The defendant, Lionel J. Michaud, is an individual who resides at 11 Belleau Road, Salem, Essex County, Massachusetts. 4) This action is an appeal for judicial review of a decision of the City of Salem Board of Appeals (Board) , which appeal is brought i pursuant to G.L. c.40A, Sec. 17. I i5) The plaintiff is a person aggrieved within the meaning of G.L. c.40A, I Sec. 17 by the decision of the Board in revoking plaintiff's building permits that were issued by the Salem Building Inspector, William i Munroe. I I i 6) The Zoning ordinance of the City of Salem became effective August 27, II i 1965, as amended. 7) on or about March 30, 1988 the Board heard a request by the defendant, Lionel J. Michaud, for an administrative ruling. i 8) The Board did not have before it any of the plans as were filed with the said Building Inspector. i 9) Plaintiff duly filed with the said Building Inspector the necessary building permit applications for additions and/or alterations for his property at 9 Belleau Road, Salem, Massachusetts. i 10) Plaintiff states that the reasons for the findings made by the defendant, Members of the Board, are insufficient in law to warrant ' the revocation of plaintiff's building permits under the provisions. of Federal Law c.40A, Sec. 15, and the purported "Decision" of the Board does not constitute a decision supported by proper reasons as i required by Section 15 of Chapter 40A. I 11) Plaintiff states that the reasons specified in the "Decision" are specious and frivolous and not consistent with the manner and authority under which the building permits were issued. A copy is incorporated herein by reference and of the Board's Decision attached hereto as Exhibit A. 12) The Decision of the defendant, Members of the Board, exceeds the authority of said Board of Appeals. j 13) The defendant, Members the Board, acted with gross negligence, I I lice in making a de appealed from as in bad faith, or with macision ap_p aforesaid. I, I I I I I i I 14) The defendant, Lionel J. Michaud: did not have standing to aonear I before said Board. i I WHEREFORE THE PETITIONER PRAYS: i 1. After hearing all evidence pertaining to the authority of the ts that the decision of said Board, as Board, determine upon the fac aforesaid, exceeds the authority of said Board and declare such decision i a nullity; 2. Order the Defendant members of the Board to pay to the Plaintiff I his costs; and 3. Grant such further relief as is meet and just. I'I IBRUCE A. BORNSTEIN ill DATED: May 11, 1988 . By his attorney- JOHN G. VALLIS 'I One Church Street i i Salem, MA 01970 745-0500 I I1II I I �I I II I1� I II it II ii g0p o jI Qp COMMONWEALTH OF MASSACHUSETTS SSSEX, ss . TRIAL COURT RE� �I µp55. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 88/1198 '! BRUCE A. BORNSTEIN, ) Plaintiff ) STIPULATION FOR DISMISSAL AND j I vs. ) ENTRY OF JUDGMENT it ) [M.R.C.P. 91 (a) (1) , 58 (a) ] ( JAMES HACKER, et al, ) Defendants ) !I i Now come the plaintiff, Bruce A. Bornstein, and the sole appearing defendant, Board of Appeal of the City of Salem, by their respective attorneys of record and, pursuant to Massachusetts Rules of Civil Procedure, 41 (a) (1) and 58 (a) , hereby Stipulate To Dismiss I' and do hereby DISMISS the within-captioned action without predjudice subject to the following Entry Of Judgment: 16 ' j JUDGMENT II I 1. The Building Inspector for the City of Salem, Massachusetts Ili is hereby ORDERED to reinstate and reissue to. plaintiff Building ( Permit No. 1154, dated October 6, 1987, for that work shown on plan dated September 9, 1987, as approved and amended; III 2. The Building Inspector for the City of Salem, Massachusetts is hereby ORDERED to reinstate and reissue to plaintiff Building it Permit No. 1231, dated November 3, 1987; 11 3. The Building Inspector for the City of Salem, Massachusetts is hereby ORDERED to forthwith make an inspection of the areas Ii covered under Building Permits No. 1154 and 1231 to determine their satisfactory compliance with State and Local Building Codes, as built; and, j II 4. After his determination of satisfactory compliance with I', State and Local Building Codes for the as-built construction of the i; areas covered under Building Permits No. 1154 and 1231, the ;I Building Inspector for the City of Salem, Massachusetts, is hereby ORDERED to forthwith issue Certificates of Occupancy for the areas i covered under Building Permits No. 1154 and 1231, As built. 'I COSTS OF SUIT, FEES AND RIGHTS OF APPEAL ARE HEREBY WAIVED BY i, BOTH PARTIES. it I ij it I' 'I I ..1 DATED THIS DAY OF , 1989 III BOARD OF APPEALS OF THE BRUCE A. BORNSTEIN, By his j CITY OF SALEM, By its ey j Duly Authorized Attorney j j MICHAEL E. O'BRIEN J G. VAL IS �I City Solicitor LIS & VALLIS 81 Washington Street ( 73 Washington St. , Suite 33 Salem, Massachusetts 01970 Salem, Massachusetts 01970 j (508) 744-3363 (508) 745-9495 I j II Ii I I I � � I i I ii I� i i �I I i i I (j I I i I i SII I II !I ii it p VPV 15 CP(-4Q 14?— 4Z(P((P(Ahj Anj I9-o orz /96/� r1 - _ M,A 9:� 3 Z N 7, 336- s,F R I z s 7-Ir woa ���z�tic M iGNAV� +I IDEGk � sry- W a L DV)=OCJ2 I A�o.r»N nm xa 4.6 �a Z _EC C. ti/c l as • V /5.2 �— S.3 i v . i X3' 62' j 3•ZS� /IIOTL GAccuu�T�� �-� caVcrC9��" s 29-.'7/ o� gss�ssd� c�- A2�A . TyiS F'c ¢N yAs LEl�N ���z� PLOT PLAN r3Y /Ns-r2vNlcr� sv;+�/c3Y a� OF l.p�lb IN �ou�vD-s oF' occvi°st770rJ 1��..�� n _ TTI)R�S , �F, c� s�rz Z S PIZEPAZEb FDV- M,9,ecN , / laa) T31zuGc -1,3aTztiS.TL=raj xALE : Zp' NATE: C5 0 OF cs� JOFlN rye HANG-o�l� 6uzvEY L6SoC-14-1L \ g OILB , K 0 32255 NEW6uK,Y 6TIZEET DJaNVr✓{z5 85 FT� 2EF': -75a3 PG. x-1-79 q �cs�ti Tzr�: 13001 8 3 pcAN 3']' ire: TH 15 PL,4-W NOT TO I3E USED FOIZ TITLE PUIZPObES I.IOIZ F01: p/�TE IZECAN�TIzL1CT10N Or pSpUNDAZ'r LINES 3610 (iii#g of ttlrm, ttsSrztl�usP##s 1FXE# Paurb of Appy CITY CLERIC.CALEM.MASS. AMENDED DECISION ON THE PETITION OF LIONEL J. MICHAUD (PETITIONER) FOR AN ADMINISTRATIVE RULING FOR 9 BELLEAU ROAD (R-1 ) A hearing on this petition was held March 30, 1988 with the following Board Members present: James Hacker, Chairman; Messrs. , Bencal, Fleming, Luzinski and Strout. 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. The petitioner, Lionel Michaud, is the owner of the real property which abuts the subject locus. He requests the Board of Appeal to issue an Administrative Ruling relative to the issuance of Building Permits by the Salem Building Inspector allowing certain construction to be performed on the property located at 9 Belleau Road which is owned by Mr. Bruce Bornstein. Mr. Bornstein was present at the hearing and was represented by Attorney John Vallis. Mr. Bornstein, by virtue of four (4) building permits, has altered the existing nonconforming structure at 9 Belleau Road by the addition of a second floor to the existing dwelling and existing garage. Furthermore, Mr. Bornstein has con- structed an addition between the existing dwelling and existing garage. Mr. Bornstein has also added a deck to the existing building. Upon the request of a person withstanding, the Board of Appeal, after hearing, has the authority to make an Administrative Ruling relative to the Building Inspector's issuance of a building permit. If the Board of Appeal finds that a building permit was issued when, in fact, a variance or special permit was required, the Board may revoke the building permit. The Board of Appeal, after careful consideration of the evidence presented at the hearing, and after viewing the plans, makes the following findings of fact: 1 . The petition of Lionel J. Michaud was supported by a great number of abutters and others who live in the Belleau Road, Desmond Terrace and Rear West Avenue area. Mr. Michaud has standing to request an Administrative Ruling. 2. The new construction at 9 Belleau Road impacts the availability of light and air on the abutting properties. 3. The new construction at 9 Belleau Road causes the new structure at that locus to exceed the allowed lot coverage of thirty percent (30%) , as set forth in Table I of Section VI of the Salem Zoning Ordinance. 4. The new construction at 9 Belleau Road causes the new structure at that locus to encroach further into the side yard than the existing nonconforming structure, in violation of the ten ( 10) foot requirement for sideyards as set forth in Table I of Section VI of the Salem Zoning Ordinance. On the basis of the above findings of fact, and on the evidence presented at the hearing, the Board of Appeal concludes as follows: AMENDED DECISION ON THE PETITION OF LIONEL J. MICHAUD (PETITIONER) FOR AN ADMINISTRATIVE RULING FOR 9 BELLEAU ROAD, SALEM page two 1 . Prior to the issuance of the existing building permits, a Special Permit or a Variance was necessary. The Building Inspector exceeded his authority by issuing the building permits for 9 Belleau Road. Therefore, the Zoning Board of Appeal voted unanimously, 5-0, to allow the request for an Administrative Ruling and to revoke the building permits currently in effect for the real property at 9 Belleau Road. For the purpose of clarification, the Zoning Board of Appeal voted unanimously, at the April 20, 1988 hearing, to amend the above paragraph to read as follows: Therefore, the Zoning Board of Appeal voted unanimously, 5-0, to allow the request for an Administrative Ruling and to revoke building permits #1154 and #1231 currently in effect for the real property at 9 Belleau Road. ADMINISTRATIVE RULING ALLOWED BUILDING PERMITS #1154 & #1231 REVOKED ames M. Fleming, Esq. Viceairman Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK iHISDEL.11'C,. i, .A:;). NIIL E A: ^E PUPSJANT TO SECT:0N 17 rF T!IE ,. E,E. .:ii S`'.L� - `HiH 2D DAYS 6F' t .HE DA? IN THE ,.c C17 CLERK- . __.. o ll T-'E y...,r _ .. _ _.T . Dc.. h:J ..xLR , 11i LE. ... BOAR2,, OF FPf-i. it Q/ ,,,two JOSEPH F. COLLINS { LEONARD F. FEMINO ASSISTANT CITY SOLICITOR ASSISTANT J ASSISTANT CITY SOLICITOR 93 WASHINGTON STREET 93 WASHINGTON STREET AND CITY OF SALEM MASSACHUSETTS AND 22 SO. MAIN STREET MICHAEL E. O`BRIEN ONE SCHOOL STREET TOPSFIELO. MA 019s3CITY SOLICITOR BEVERLY. MA 01915 745-4311 745.4311 93 WASHINGTON STREET 887-6401 AND 921.1990 PLEASE REPLY TO 22 SO.MAIN STREET si WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET SALEM. MA 0197o 745-4311 744.3363 PLEASE REPLY TO St WASHINGTON STREET - November 10, 1989 , James M. Fleming, .Chairman �7 FQ9 Board of Appeal City of Salem One Salem Green Salem, Massachusetts 01970 y m o r— 2 Re: Bornstein v Hacker, et. als. =m Q, Essex County Superior Court #88-1198 _ 3=0 m a H � Dear Mr. Fleming: In connection with the above matter, enclosed please find copies of the following: 1. Amended decision of Board of Appeals 2. Complaint 3 . Section VIII D. 1. of the Zoning Ordinance 4 . Plot Plan of Land dated August 24 , 1989 5 . Proposed Stipulation of Dismissal and Entry of Judgment. It is my opinion that the above entitled Appeal has been rendered moot by reason of the September 18, 1989 zoning amendment relative to non-conforming structures. The basis of the Board's administrative decision is that the new structure (addition and side deck) exceeded the 308 lot coverage as set forth in Table I of Section VI of the Zoning Ordinance and the ten foot side yard requirement .of the same section. A review of the enclosed plan shows that the addition and plan do, in fact, meet the minimum requirements. In addition, the September 18 , 1989 amendment clearly mandates that an enlargement or alteration of a non-conforming. structure is permissible provided the density requirements of Table 1, Section VI are adhered to even though lot area and width are non-conforming. It is deserving of note that Section VIII D. 1 . provides that increases in height of non-conforming structures now require an applicant to avail himself of the special permit procedure outlined in Section VIII-F. However, it is my opinion that this is not applicable to the instant case because this non-conforming structures height limitation was inserted by a May 9 , 1988 amendment to the Zoning Ordinance. In the instant case the building permits were obtained in the latter part of 1987 and the Board of Appeal Administrative Ruling was handed down on March 30 , 1988 , both being prior in time to the May 9 , 1988 amendment. Lastly, it should also be noted that there is a deck on the rear of the dwelling which is not noted on the plan. Th .s deck :apparently would put the property in violation of the rear set back and lot coverage requirements of the aforementioned ordinance. However, such is not involved in the existing Appeal and it is my understanding that the alleged violation is being pursued by the Building Inspector. Accordingly, I request that the Board authorize me to execute the enclosed as this matter has become moot and not a proper subject for judicial inquiry. Ve7hate;l 'E. my yours , L-Mi O'Brien City Solicitor MEO/jp cc : Building Inspector 3 Public Prclpertg Peparttnettt Jp�e1MME�+'4V 3ttillinq Department (Our �nlrnt (6rrrn 713-11213 William H. Munroe Director of Public Propertv Maurice M. Martineau, Asst Inspector Inspector of Buildings Edgar J. Paquin. Asst Inspector Zoning Enforcement Officer John L. LeClerc, Plumbing/Gas Insp. February 11 , 1988 Mr. & Mrs. Lionel Michaud 11 Belleau Road Salem, MA 01970 RE: 9 Belleau Road Dear Mr. & Mrs. Michaud: The property located at 9 Belleau Road was developed under a permit ( N28) issued February 2, 1953 and the house and garage were a permitted use at the time, as was the land area. The property continues to be zoned for single family use and is being used in that manner. I have reviewed the sections you cited in your letter regarding possible violations at the subject property. I have noted that the sections cited deal with nonconforming uses of land and structures. It is my opinion that the use of the land is a conforming use and it is also my opinion that none of the construction being done under the current building permits increases the nonconformity of the buildings on site created by the current Zoning Ordinance. It is my further opinion that all permits issued conform to the requirement of the Zoning Ordinance, Table I, Residential Density Regulations. Hopefully this will �.nswer the questions you have raised. If I can be of further assistance please contact me. Sincerely, William H. Munroe Inspector of Buildings Zoning Enforcement Officer WHM:bms cc: Councillor Grace