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4 BENTLEY STREET - ZBA (2) 2 00 (o +` C4 s Leg7APPEAL CIT BOARL978-7481Will hold a ng for allpersons interestition sub- mitted by LINDA MOUSTAKIS is seek- ing an Administrative Appeal.of Zon- ing Enforcement Officer's determination the 4 Bentley is a three family dwelling for the property located at 4 BENTLEY STREET R-2.Said hearing will be held on Wednesday,October 18,2006 at 6:30 P.M.,120 Washington Street,3rd + floor,Room 313. 1 October 4&11,2006 Nina Cohen Chairman SN—10/4,10/11/06 CITY OF SALEM LEGAL DEPARTMENT .MINET?d'�' �.a 93 WASHINGTON STREET♦ SALEM,MAsSAmmr rs 01970 TEL:978-745-9595 ♦FAX:978-744-1279 KIMRERLEY DRIscOLL ELIZABETH RENNARD,Es MAYOR Q' JERALD PAA,ESQ. QTY SOL[QTOR ASST.QTY Soua$OL[QTOR Memorandum for Zoning Board of Appeals To: Nina Cohen, Chairperson, Zoning Board of Appeals From:Jerald A. Parisella, Assistant City Solicitor RE: 4 Bentley Street October 18, 2006 You requested a legal opinion concerning the issuance of a building permit to the owner of a two-family dwelling to allow the premises to be used as a three-family dwelling. Your specific request is attached as Exhibit A of this opinion. Your request is in response to an appeal filed by Linda Moustakis of 2 Bentley Street. She is appealing the determination of the building commissioner that the use of 4 Bentley Street as a three-family home is protected by the statute of limitations in General Laws Chapter 40A sec. 7 (the building commissioner's letter is Exhibit B). Chapter 40A sec. 7 governs the issuance of building permits. The statute gives the building inspector the authority to issue a building pen-nit. When issuing a building permit, the building inspector must determine if the proposed use meets the zoning requirements of the locus. There is no requirement for notice or a hearing for the issuance of a building permit. Chapter 40A sec. 7 creates a six-year statute of limitations period to challenge that a building permit was issued in error. In order to obtain the protection of the six year statute of limitations: Odder 18, 2006 Page 2 there must have been a building permit the permit must have been issued by"a person duly authorized to issue such permits;" and, the real property must have been "improved and used in accordance with the terms of the original building permit." Even if a building inspector mistakenly interprets the zoning ordinance or bylaw and issues a building pennit, any aggrieved party has only six years to file a claim for relief. Hall v. Provincetown Zoning Board of Appeals, 56 Mass.App.Ct. 1103 (2002); Cape Resorts Hotels Inc. v. Alcoholic Licensing Bd. Of Falmouth, 385 Mass. 205 (1982). In this particular case, the building inspector issued a building permit in 1997 to "Renovate 3`d fL Apt. as per plans: new bath & replace walls." The records also note that a certificate of occupancy was issued on May 15, 1997 for the work done pursuant to the building permit. It appears from the same records the building inspector had determined that the premises was "a lawful three (3) family dwelling." The building is located in an R-2 District. It is my opinion that even if the building inspector issued the building permit in error, the time period to appeal his decision has expired. An appeal should have been commenced at least prior to May 15, 2003 (when the certificate of occupancy was issued). If the Board finds that a building permit was issued by the proper individual and the premises was improved and used in accordance with the permit, then an action to annul the issuance of the building permit and/or prohibit said use is barred by the six- year statute of limitations. i coxo7 �'t�nue ELIZABETH M. RENNARD CITY OF SALEM JERALD A. PARISELLA City Solicitor KIMBERLEY L. DRISCOLL, MAYOR Assistant City Solicitor 93 Washington Street One School Street Salem, MA 01970 Beverly, MA 01915 Tel:978.619.5637 LEGAL DEPARTMENT Tel:978.921.1990 Fax: 978.744.1279 93 WASHINGTON STREET Fax:978.921.4553 Email:brennard@salem.com SALEM, MASSACHUSETTS 01970 Email:jap@alexanderfemino.com August 10, 2010 John H. Carr, Jr., Esquire 8 enf�Q 9 North Street Salem, MA 01970 RE: Nicholas Osgood v. Linda Moustakis Dear John: I am responding to your letter dated August 9, 2010 concerning the staircase located at 4 Bentley Street. It was my belief that I responded to your concerns about the removal of the staircase, but if I did not, I apologize. As you know, there is a tenant residing in the 3`d floor apartment who is not a party to the various lawsuits in this case. The tenant, Aaron Rice, has been given a 60- Day Notice to Vacate pursuant to his lease with Mr. Osgood. The date to vacate is August 31, and the City agreed to give Mr. Osgood until September 15th to remove the fire escape. This timeline appeared reasonable to the City considering the tenant is an "innocent" third party. It is the City's expectation that the staircase will be removed on or before September 15, 2010. Please call with any questions or concerns. Very truly yours, Jerald A. Parisella JAP/gsw - I Cc: Thomas St. Pierre Philip C. Wysor, Esquire ae ®®®®a INE0 at 99 ® ® ®®®®®33 GLOVSKY & GLOVSKY ATTORNEYS AT LAW Philip C.Wysor pwysor@glovskyx2.com Direct Dial(978)720-3112 January 12, 2007 Mr. Thomas St. Pierre City of Salem Building Department 120 Washington Street, 3`d Floor Salem, MA 01970 Re: _ Nicholas Osgood 4 Bentley Street Salem, MA Dear Mr. St. Pierre: As I believe you are aware, this office has filed an Appeal on behalf of Mr. Osgood from the December 7, 2006, Decision by the Zoning Board of Appeals, which denied his request for a variance. At issue is whether the exterior staircase constructed as a second means of egress to 4 Bentley Street should be allowed to remain. As you are also aware, a Clerk's Hearing on this matter has been scheduled for the Salem District Court on January 22, 2007. Until the Appeal is finally disposed of, I would respectfully request that any enforcement hearings for the removal of the staircase be postponed. Thank you for your consideration of this matter. 1110yo urs, -CWysor PCW:Ikw_. cc: Mr. Nicholas Osgood Jerald A. Parisella, Esq. Eight Washington Street Beverly, MA 01915 Tel: 978.922.5000 Fax: 978.921.7809 I COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. NICHOLAS OSGOOD, ) Plaintiff, ) V. LINDA MOUSTAKIS and BONNIE BELAIR, ) "> BETH DEBSKI, ANNIE HARRIS, STEPHEN ) PINTO, ROBIN STEIN, RICHARD DIONNE, ) And NINA COHEN, CHAIRPERSON, BEING ) T c� REGULAR and ALTERNATE MEMBERS OF ) THE ZONING BOARD OF APPEAL OF ) THE CITY OF SALEM, MASSACHUSETTS, ) Defendants. ) NOTICE OF APPEAL TO ESSEX SUPERIOR COURT FROM DECEMBER 7 2006 DECISION OF SALEM BOARD OF APPEAL DENYING PETITION OF NICHOLAS OSGOOD REQUESTING A VARIANCE FROM SIDE YARD SETBACK TO ALLOW CONSTRUCTION OF EXTERIOR STAIR AT 4 BENTLEY STREET, SALEM, MASSACHUSETTS IN AN R-2 DISTRICT I, Philip C. Wysor, attorney for the Plaintiff in the above-entitled action, hereby give notice to the City Clerk of the City of Salem, Massachusetts and to the Salem Zoning Board of Appeal that said Plaintiff has appealed the December 7, 2006 Decision of the Salem Board of Appeal denying the Plaintiff's petition requesting a variance from side yard setback to allow construction of exterior stair at 4 Bentley Street, Salem, Massachusetts in an R-2 district. / A copy of the Complaint filed as Essex Superior Court Civil Action No. 10 ���An December 27, 2006 is attached hereto. Respectfully submitted, NICHOLAS OSGOOD By his attorney, Phhip C.Pysor, Esq. I Glovsky& Glovsky 8 Washington Street Beverly, MA 01915 (978) 720-3112 BBO No. 5360000 Dated: December 27, 2006 -2- p COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. s NICHOLAS OSGOOD, > FELE® IN THE SUPERIOR COURT Plaintiff, ) FOR THE COUNTY OF ESSEX DEC 2 7 2006 V. LINDA MOUSTAKIS and BONNIE BELAIR, ) CLERK BETH DEBSKI, ANNIE HARRIS, STEPHEN ) -' c-i PINTO, ROBIN STEIN, RICHARD DIONNE, And NINA COHEN, CHAIRPERSON, BEING ) REGULAR and ALTERNATE MEMBERS OF ) TJ THE ZONING BOARD OF APPEAL OF ) THE CITY OF SALEM, MASSACHUSETTS, Defendants. ) COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17 APPEALING DECEMBER 7, 2006 DECISION OF THE SALEM BOARD OF APPEAL DENYING PETITION OF NICHOLAS OSGOOD REQUESTING A VARIANCE FROM SIDE YARD SETBACK TO ALLOW CONSTRUCTION OF EXTERIOR STAIR AT 4 BENTLEY STREET, SALEM, MASSACHUSETTS IN AN R-2 DISTRICT This is an appeal from an Amended Decision of the Zoning Board of Appeal of Salem, Massachusetts (hereinafter"the ZBA" or "the Board"), dated December 7, 2006 and filed with the Salem City Clerk on December 7, 2006, denying Plaintiffs petition requesting a variance from side yard setback to allow construction of an exterior,stairway at 4 Bentley Street, Salem, Massachusetts in an R-2 district. A certified copy of the said December 7, 2006 Decision is attached hereto as Exhibit A. PARTIES 1. Plaintiff, Nicholas Osgood (hereinafter "Mr. Osgood") owns and resides at 4 Bentley Street, Unit 3, Salem, Massachusetts, 01970, which is the subject property. 2. Defendant Linda Moustakis (hereinafter "Ms. Moustakis") is the owner of 2 Bentley Street, Salem, Massachusetts, 01970, which abuts 4 Bentley Street. 3. Defendant Nina Cohen (hereinafter "Ms. Cohen"), who resides at 22 Chestnut Street, Salem, Massachusetts, 01970, is the Chairperson of the Salem Board of Appeal. She voted to deny Mr. Osgood's petition for a variance to construct an exterior stairway at 4 Bentley Street. 4. Defendant Richard Dionne (hereinafter "Mr. Dionne"), who resides at 23 Gardner Street, Salem, Massachusetts, 01970, is a regular member of the Salem ZBA. He voted to deny Mr. Osgood's petition for a variance to construct an exterior stairway at 4 Bentley Street. 5. Defendant Stephen Pinto (hereinafter "Mr. Pinto"), who resides at 55 Columbus Avenue, Salem, Massachusetts, 01970, is a regular member of the Salem ZBA. He voted to deny Mr. Osgood's petition for a variance to construct an exterior stairway at 4 Bentley Street. 6. Defendant Robin Stein (hereinafter "Ms. Stein"), who resides at 141 Fort Avenue, Salem, Massachusetts, 01970, is an alternate member of the Salem ZBA. She voted to deny Mr. Osgood's petition for a variance to construct an exterior stairway at 4 Bentley Street. -2- 7. Defendant Bonnie Belair(hereinafter "Ms. Belair"), whose mailing address is P.O. Box 685, Salem, Massachusetts, 01970, is a regular member of the Salem ZBA. She was absent at the October 18, 2006 ZBA hearing. (This is the only address available from the Salem ZBA.) 8. Defendant Beth Debski (hereinafter "Ms. Debski"), who resides at 43 Calumet Street, Salem, Massachusetts, 01970, is an alternate member of the Salem ZBA. She did not vote at the October 18, 2006 ZBA hearing. 9. Defendant Annie Harris (hereinafter "Ms. Harris"), who resides at 28 Chestnut Street, Salem, Massachusetts, 01970, is a regular member of the Salem ZBA. She was absent at the October 18, 2006 ZBA hearing. 10. The Plaintiff has standing to bring this action, as he was the original petitioner named in the decision of the Salem ZBA, and thus is a "person aggrieved" under M.G.L. c. 40, Section 17. JURISDICTION 11. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the Massachusetts General Laws. 12. This case is timely, as it has been filed within twenty (20) days from December 7, 2006, which is when the ZBA's December 7, 2006 Decision was filed with the Salem City Clerk. PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS 13. Mr. Osgood purchased the property at 4 Bentley Street in 1995. 14. From 1995 until the present day, Mr. Osgood has operated the property as a three-family dwelling. -3- 15. In February of 1997, Mr. Osgood applied for and received Building Permit No. 97-97 from the City of Salem Building Inspector to renovate the third-floor apartment at 4 Bentley Street. 16. In May of 1997, Mr. Osgood received an Occupancy Permit specific to Building Permit No. 97-97, allowing the continued occupancy of the third-floor apartment. Mr. Osgood has had a tenant or owner occupying the third-floor unit ever since. 17. In May 2005, Mr. Osgood applied for an received a building permit to construct a roof deck and an exterior staircase to allow egress from the third floor. 18. In applying for the building permit, Mr. Osgood submitted a sketch showing that the proposed stairway would extent to within three (Y) feet of the rear property line and would not be in compliance with rear setback requirements of the Zoning Ordinance. The Building Department understood that the dimensional requirements of the zoning code were superseded by Building Code and fire safety requirements, and for that reason the permit was issued without the granting of a zoning variance. 19. In May 2005, construction of the stair commenced. A neighbor, Linda Moustakis of 2 Bentley Street, immediately objected, on the grounds that the structure was too close to the property line and did not meet zoning requirements. She requested that the Building Department demonstrate their basis for setting aside zoning considerations. 20. In November 2005, Mr. Osgood converted the property at 4 Bentley Street to a three-unit condominium, sold two units and retained the third floor unit for himself. -4- 21. Mr. Osgood filed a Petition for a Variance from the decision of the Building Inspector requesting the Board of Appeal to permit him to construct the exterior stairway within the five-foot setback required by the Salem By-Law. The case was heard for the first time on April 19, 2006, after which it was continued twice and was finally heard on October 18, 2006, with the ZBA voting 4-0 to deny the Petition. 22. Defendant, Linda Moustakis, also filed a petition requesting an Administrative Appeal from a non-conforming use determination by the Building Inspector relating to at 4 Bentley Street. 23. That Petition was denied 4-0 by the Salem ZBA, which had the effect of upholding the decision by the Salem Building Inspector that 4 Bentley Street constitutes a valid three-family dwelling pursuant to M.G.L. c. 40, Section 7. (See Exhibit B attached.) COUNT Hardship 24. The Plaintiff repeats, realleges and reavers each and every allegation set forth in Paragraphs 1-23 above as if fully set forth herein. 25. The Salem Zoning Board should have found that owing to the circumstances relating to the land and structures and especially affecting such land and structures and not affecting generally the zoning district where 4 Bentley Street is located that a literal enforcement of the provisions of the By-Law would involve substantial hardship, both financial and otherwise, to the Petitioner. -5- COUNT II Detriment to Public Good 26. The Plaintiff repeats, realleges and reavers each and every allegation set forth in Paragraphs 1-23 above as if fully set forth herein. 27. The relief requested by the Petitioner may be granted without substantial detriment to the public good. COUNT III Intent and Purpose of By-Law 28. The Plaintiff repeats, realleges and reavers each and every allegation set forth in Paragraphs 1-23 above as if fully set forth herein. 29. The relief requested by the Petitioner will not nullify or substantially derogate from the intent and purpose of the By-Law. -6- RELIEF SOUGHT The Plaintiff respectfully requests that this Court: a. Find for the Plaintiff on Counts I, II and I11. b. Enter judgment in the Plaintiffs favor by overturning the December 7, 2006 Decision by the Salem ZBA which denied Mr. Osgood's Petition for a Variance. C. Award Plaintiff his costs and reasonable attorney's fees. d. Grant such other and further relief as the Court may deem just and appropriate. Respectfully submitted, NICHOLAS OSGOOD By his jftorney, Philip C Wysor, Esq. Glovsky & Glovsky 8 Washington Street Beverly, MA 01915 (978) 720-3112 BBO No. 5360000 Dated: December 27, 2006 -7- XONOITA CITY OF SALEM f;;' I ( SACLFlfJS�TTS - �y BOARD O�'LAFi�'K.9-0r FICF n m 120 WASHINGTON STREET, 3RD FLOOR 9�c SALEM, MASSACHUSETTS 01970 TELEPHONF-:: 97f I""8-745-95915- 'p`LZI/INgpo� FAX: 97 Lfl IJ`.��4� L: JZ KIMBERLEY DRISCOLL MAYOR December 7, 2006 City of Salem Zoning Board of Appeal Decision — Amended Petition of Nicholas Osgood requesting a Variance From Side Yard Setback to Allow Construction of Exterior Stair at 4 Bentley St. (R-2 District) A public hearing on the above petition was opened at the April 19, 2006 meeting of the Zoning Board pursuant to Mass General Law Ch. 40A, Sec. 11, and was continued until the October 18, 2006 meeting. The following Zoning Board members were present: Beth Debski, Nina Cohen, Richard Dionne, Steve Pinto and Robin Stein The petitioner Nicholas Osgood requests a variance pursuant to section 9-5 to allow the construction of an exterior stairway at the existing dwelling at 4 Bentley Street in the two-family zoning district. The Board of Appeal, after careful consideration of the evidence presented at the public hearing, and after thorough review of the Plans and Petition submitted, makes the following findings of fact: 1. Petitioner Nick Osgood purchased the property at 4 Bentley St, a three-story residence, in 1995. 2. In May 2005 Mr. Osgood applied for and received a building permit to construct a roof deck and an exterior staircase to allow egress from the third floor. 3. In applying for the building permit, Mr. Osgood submitted sketched showing that the proposed stairway would extend to within three feet of the rear property line and would not be in compliance with rear setback requirements of the Zoning Ordinance. The Building Department understood that the dimensional � I-.. requirements of the zoning code were superceded by Building Code and fire .m t2 safety requirements, and for that reason the permit was issued without the R' granting of a zoning variance. 4. In May construction of the stair commenced. A neighbor, Linda Moustakis of 2 Bentley St., immediately objected, on the grounds that the structure was too close m. �„; ..i✓ rs3 to the property line and did not meet zoning requirements. She requested that the Building Department demonstrate their basis for setting aside zoning XNI �� considerations. She further pointed out that no variance would be required if the egress stairway were sited on the driveway side of the house. 5. On November 22, 2005 the Building Corrnnissioner informed Mr. Osgood that the building permit granting permission to construct the stair was not validly issued and directed him to correct the zoning violation within 60 days of receipt of the notice. See Letter of Thomas St. Pierre, Zoning Enforcement Officer, dated November 22, 2005, incorporated by reference herein. 6. On information and belief, Mr. Osgood did not comply with the Building Commissioner's directive. In late 2005, Mr. Osgood converted the property to a condominium association and filed a Master Deed and Declaration of Trust. 7. On November 30, 2005 Mr. Osgood conveyed the second floor condominium to Victoria Regan. 8. Mr. Osgood's request to build a roof deck was not part of the original building permit since there was no roof deck shown on the sketches submitted to the Building Department. The Building Department has asked the petitioner to remove any portion of the roof deck that was completed, and, upon information and belief he has done so. This petition does not include a request for a variance to allow a roof deck. 9. At the public meeting, Ms. Moustakis and her attorney John Carr spoke in opposition to the proposed variance, on the grounds that the exterior stair was too large and deprived her of privacy in the enjoyment of her property. Also speaking in opposition to the stair were neighbors Robert Wilde of 5 Daniels St. and Kate Gill of the Daniels House Inn. 10. Also speaking in opposition were City Councilors Lucy Corchado, representing Ward 1, and Lenny O'Leary, Ward 4 representative and a friend of the abutter. On the basis of the above findings of fact, including all evidence presented at the public hearing, including, but not limited to, the Petition and detailed plans, the Zoning Board of Appeals concludes as follows: 1. The petitioner's request for a variance to construct an exterior stair within 2.5 ft of the rear property line constitutes a substantial detriment to the public good. 2. The proposed expansion does nullify or substantially derogate from the intent or purpose of the zoning ordinance. 3. In permitting such change, the Board of Appeals requires certain appropriate conditions and safeguards as noted below. In consideration of the above, the Salem Board of Appeals voted, four(4) opposed (Cohen, Dionne, Stein and Pinto) and none (0) in favor, to approve the request for a variance, subject to the following terms, conditions, and safeguards: 1. Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner. 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner shall obtain a building permit prior to beginning any construction. 5. Exterior finishes of the new construction shall be in harmony with the existing structure. 6. A Certificate of Inspection is to be obtained. 7. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board. Nina Cohen, Chair Salem Zoning Board of Appeal ONOIT CITY OF SALEM9, MASSACHUSETTS BOARD OF APPEAL 16 120 WASHINGTON STREET. 3RD FLOOR f 2 SALEM, MASSA CHUSETTS 01 970 r TELEPHONE: 978-745-9595 L1,NNyg pOH FAX: 978-740-9846 KIMBERLEY DRISCOLL MAYOR November 27, 2006 c City of Salem Zoning Board of Appeal Decision Petition of Linda Moustakis requesting Administrative Appeal From 9 Nonconforming Use Determination at 4 Bentley St. (R-2 District) �V N y A public hearing on the above petition was opened on October 18, 2006 at a meeting of the Zoning Board pursuant to Mass General Law Ch. 40A, Sec. 11. The following Zoning Board members and associate members were present: Beth Debski, Nina Cohen, Richard Dionne, Steve Pinto and Robin Stein. The petitioner Linda Moustakis of 2 Bentley St. sought to appeal, pursuant to Section 9- 2(e) of the Zoning Ordinance, a determination by the Building Commissioner that the dwelling at 4 Bentley Street is an existing nonconforming three-family dwelling. This determination was made in an August 31, 2006 letter from Thomas St. Pierre, Zoning Enforcement Officer and Building Commissioner, to Attorney John H. Carr Jr., who represents Ms. Moustakis, a copy of which is attached to this decision and incorporated by reference herein. Appeal of a determination by the Building Commissioner is according to Section 9-2 (e) of the City of Salem Zoning Ordinance, which states: (e)The concurring vote of four (4) of the members of the board of appeals shall be necessary to reverse any order or decision of the inspector of buildings or to COD til decide in favor of the applicant on any matter upon which itis required to pass under this ordinance or to effect any variation in the application of this ordinance The Board of Appeal, after careful consideration of the evidence presented at the public hearing makes the following findings of fact: "' LLtivs'ita 168 1. Petitioner Linda Moustakis has owned and resided at 2 Bentley St. since 1996. 'N:" ' cY- 2. In May 2005 the owner of the abutting property at 4 Bentley St. obtained ary•a building permit and began construction of an exterior stair to the third floor, with the intention of converting the property to three condominiums. 3. Ms. Moustakis objected to the granting of the building permit on the grounds that the dwelling was a two-family dwelling and was located in an R-2 (two-family) EXwk-Sti `B district. She also objected to the location of the exterior stair within three feet of the property line, asserting that the dimensional setback had not been observed. 4. In April 2006 Nick Osgood, the owner of 4 Bentley St., applied to the Zoning Board of Appeal for a variance to allow the exterior stair to be built within the rear yard setback. When the matter came for a hearing, Ms. Moustakis raised the issue of whether the dwelling was a legal three-family dwelling? The matter was continued, and attorneys for both parties filed briefs with the City of Salem, which were sent to the members of the Zoning Board of Appeal. 5. In July Ms. Moustakis submitted affidavits concerning the prior use of the dwelling from former residents Stanley Doran, William Wilson,Marianne Bick, Bernard Bartnicki, Jennie Bartnicki and Sandra Baldwin. These affidavits are incorporated by reference herein as Exhibit A. 6. On August 31, 2006 the Building Commissioner determined that the three-family use was "protected from any action by the City due to the provision of M.G.L. c.40A, Section 7." See Letter of Thomas St. Pierre, August 31, 2006, attached as Exhibit B. 7. In October 2006 the Board of Appeal sought an opinion from the City Solicitor with respect to the Building Commissioner's determination, and this opinion was received at the public meeting on October 18, 2006. The Opinion of the City Solicitor, dated October 18, 2006, is attached and incorporated by reference herein as Exhibit C. 8. At the public meeting, attorneys for both parties presented argument. On the basis of the above findings of fact, including all evidence presented at the public hearing and evidence submitted prior to it, the Zoning Board of Appeals concludes as follows: The request for appeal from the Building Commissioner's determination of August 31, 2006 is denied. In consideration of the above, the Salem Board of Appeals voted, four(4) opposed (Cohen,Dionne, Hams and Pinto) and none (0) in favor, to deny the request for administrative appeal. Nina Cohen, Chairman Salem Zoning Board of Appeal CAtdwIS, 2006 Pale 2 there must have been a building permit the permit must have been issued by"a person duly authorized to issue such permits;" and, the real properly must have beea "improved and used in accordance with the terms of the original building permit." Even if a building inspector mistak-*interpretsthe zoning ordinance or bylaw and issues a building permit,any aggrievedparty has only six years to file a claim for relief. l�l v Province g m Zoning Boatri of Anoeab. 56 Macs.App•Cr. 1103 (2002); ,QW worts Fbwls Inc- v Alcohol-k )'`r`enci°�i Bd QE V-Imourhh, 385 Mass. 205 (1982). In This particular case, the budding inspector mued. a buMing permit in 1997 to 'Renovate 3'a fl Apt as per plans: new bath Se replace walls:' The records also note that a certificate of occupancy was issued on May 15, 1997 for the worst done pursuant to the building pen= Is appears from the same records the building Inspector had determined that the premises Was "a lawful three (3) family dwelling." The building is located in an &2 District. It is my opinion that even if the budding inspector issued the building permit in error, the time period to appeal his decision has expired. An appeal should have been commenced at least prior to May 15, 2003 (when The certificate of occupancy was issue. If the Board finds that a building permit was issued by the proper individual and the premises was improved and used in accordance With the permit, then an action to annul the issuance of the building permit and/or prohibit said use is barred by the six- year ixyear stanseae of limitations. QTY OF SALEM LEGAL DEPARTNMNr 9l wA2DNGICHSIZMZ4 0 SALM MAUAKtxasMOIVO 1SL•97!.743-9595 •FAX%M744-W9 Memorandum for Zoning Board of Appeals To: Mma Cohen,Chairperson.Zoning Board of Appeals From:Jerald A Pwisella, Assistant City Solicitor RE: 4 Bentley Street October 18,2006 You requested a legal opinion concerning the issuance of a building permit to the owner of a two-fan*dwelling to allow the premises to be used as a three-family dwelling.Your specific request is attached as Exhibit A of this opinion. Your request a in resppoonse to an appeal filed by Linda Moustalas of 2 Bewley Street. . She is appealing the determination of the building commissioner that the use of 4 Bentley Street as a three-family home is protected by the statute of limitations in General haws Chapter 40A sec. 7 (the building commissioner's letter is Exblbit B). Chapter 40A sec. 7 governs the issuance of building permits.The statute gives the building inspector the authority to issue a building permit.When issuing a building permit, the building inspector must determine if the proposed use mects the zoning requirements of the locus. 'There is no requirement for notice or a hearing for the issuance of a building permit. Chapter 40A sec.7 creates a six year statute of limitations period to challenge that a building rmit was issued in error.In order to obtain the protection of the six year statue of limitations: II CITY OF SALT Mlle 04ASAACHUs19TYS PUBLIC PROPZI"V OBPARTWNT 120 WA&*NGTOM Wripu T. 3Ra FLOOR ' a SALM MAssAc»usarr$01970 TELerMomb 078,74S9598 EAT.360 FAX: 978-74098&6 IMBF-RUCT DRISCOLL MATO! Aug"t 31,2006 John H. Cats Jr.. Esquire 9 North Street galea[,Ma. 01970 RE:4 Bentley Sheet Dear 1Nr, Cats: 1 have reviewed the inforr nMlon regarding the legal statue of d Banday Street_ it is my opinion that 4 Betuley is s 3 family dwelling. It is my tmdaatandks that the third unit is protected from say action by the City due to the provisions of Mau Qeaeral Law 40A. Section 7 If you wish to appeal this deaerminatlon,you mus[ file ea appeal with the Salem Zoning Board of Appeals. It should be noted, the issue of the three family statue is not before the Board. The issue befo»the Board is the 90wi0r deal[Bud stairway. Siacayiy. �►. G/? �'00W Thomas SL Pierre Zoe;nggnawc ment0faoer Building Coratnissioner cc: Philip Wyscr. Esq. ESrsbeth Rawaak Solicitor Jerry Parisall>,Assistatd Solicitor AFFIDAVIT OF MMRA J BAI.DMM ColgCMM(;4 XE-N .EY 3TItEl,'T 1, Sandra J.Baldwin.beas8 a*swam,hereby swear that the following is true: 1. I ride at 1 Walton Street,Salem,Mwsachusetts 01970, 2. I am an office manager of the Boston Law fum of Goodwin Procter, formally Goodwin,Procter A Hoar, 3. My mother, whose maiden name was Helen BmtdckL grow up in the Botucla an*homestead along with Ler 6 siblings,inoludimg our uncle, Bernard Battucki,who is also submitting an atbdavik along with his wife, Jeanie. 4. I ata intimately familiar with 4 Bentley Slrcet,Salem,Massachusetts,not only because I grew up at 2 Bentley Street'but also because I continued to visit mrmcem s fijaxk and relatives is the neighborhood even atter moving out ofjpkndey Street is 1954. 5. I can unequivocally state that undl 196E(at a minimum)4 Bentley Street, Salem,MA Lad b cn continuously oPastod as a 2-family apartment bum with one apsetme n an the fust Boor and the other on the sewed. 6. I now rWizo that a vniamoe was newer obtained for 4 Bentley Street to become a 3-family property,ars v w it gcacd&dmzvd as a legal 3-family property as of tho cmidon of the current zoning in 1965. Signed under oath flus day of July 2006. Sandra L Baldwin AFM—AM OF MM BARMM co G 4 RRU i-EY_STRW 1,Jennie Bartmeld.being duly MOM hereby swear that the following is true: t. I cunmay reside at 122 Locust Sure;Danva 3,Massachusetts 01923 with my husbeod of 65 yeses,Be=ard Bastaicki. 2. From the time my husband and I tmmied in 1941,mtti11999 (approximately),we visited my sisters and brothers,who resided in the BartuicId famft homestead at 2 Bendley Stseet,Salem,M&%WhuW ts, vkb.m ly every weekeod. 3. I cam uncogditioneft am&e®firsvhamd knowledge%A 4 Huntley Street vas continuously used as a 24=OY aparCm mt building from 1941 to at least 1998(at a minimum).which consisted of a fast floor unit.and a second unit on the second door. Signed undo oath this /`� day ofl*2006. Jeanie Ba Wuki statrmwVlT OF BERPIARD BAICIMG1cI STREET I, Bernard Barmid i,being swo4 hereby swear that the following is true: 1. 1 etmatly rcdM at 122 Locust Street,Danvers,Massachusetts 01923 with my wife of 65 years,Jennie uo,►,.:� 2. From tho timue my wife sad I maaaod in 1941,anal 1998(VOrortrmoamly), we visited my sisters and bsotbers, who resided m the Bartaidu family homestead as 2 Bmt*Strset. Salem.Massachusetts, virn,ally asesy weekem& ;, I can menndWonaW state from fnmsi hard b wwiedge tim 4 Bentley Street was continuously used m a 2-family t bonding from 1941 to as least 1998(at a mit).wbich OO° of a first floor unit,and Is second unit on lite second floor. Signed under oath this f'� day of jY 2006_ Bernard Bartnicki B AAVIT OF Mw1aTwlyNM ICRC CONCMWG 4 BItPT�STRB1t7 I,Marisnce Birk,being duly sw oM luseby swea that the following is true: 1. I cunently reside at Unit No.217 of the Chesty Stll Condominium Apartments,4 Duck Pond Road,Danvers,Massachusetts 01923- 2. My brother.Stanley Dore„and I lived at the second floor unit at 4 Bentley Street,Solent,Masaacbvse tts Groat 1957 to 1961 inclusive. 3. During the entire time we resided at 4 Bentley Street,the pmpaW was ops sated as a 2-family apartment baildin& 4. >n 1961 are moved just aroand tho cornet to 1 SS Derby Shoes;where we continued to reside unttd 1969. 5. }Even aRa my brother and I moved to 155 Derby Sued in 1961,we condoned to be vary familiar with 4 Bentley Sheet,not only because we wet irrtim deb fkmaj with the noeighboshood in gem rA having grown up dwr,,butt dso because we bad several friends and r"vea living on Bentley Stroct,iawlndin6 our ccualas,Philip and Louis Swmuclu,who resided at 14 Bentley Sheet 6. During the period 1961 to196E inclusive,4 Bentley Strut was hkawise confiaatonsly operated as a 2-family apartment bAdin& 7. I am not related by blood or by masiage to Linda Mouatald s of 2 Bentley Sheet.Salem,Massachusetts,01970. Signed under oath this IY 1I day of 7nty 2006. * > 7y/d s° Marianne Dick AF1r�AVtT OF Wxt,L1AM W1LSOiV CONCFJUONC 4 BEN71MICY 67 tiEE7 1.William Wilson.being duly sworn.hereby sweat that the foilowing is true: 1. I cmently reside at 4200 South East 47m Place, Ocala,Florida 34480. Akj 2. Daring 1963 and 1964.I resided im tbRy t floor ap ubnent at 4 Bentley Street,Salem,Massachusetts during 1963 and 1964. 3. As I am 73 years old now.I was the 43 and 44 years old. 4. During my entire occupancy of my first floor apartment at 4 Beaday Streot,the property was opetvud as a 2-family gmtmem building,the ppoWn unit being then occupied by an Edward Lassiter and his wife, Anaa Lassitw. S. I am not related by blood or Wmasriap to Linda MousLAU of 2 Bentley Street.Salem,Mwswb setts.01970. Siowd under oath this�� day of July 2006. William Wilson A1i'>1'IDAVPP O�STAPiLSY DORd�i CpNCG 4 HFrloTl'L�S9'IaEEy I. Stanley Doran.bems duty sworn.bz=bY swear that the following is true 1. I aurently reside at 12 Coda bill Drive,Danvers,Massada.01923. 2. My sister,Marianne Bidr,and I lived at the second Boor unit at 4 Bentley Street, Sdggn,Massachusetts$one- 1957 to 1961 inclusive- 3. Daing the eatin time we m"ad at 4 Bentley Street.the PruPCItY wait operated as a 2-family apartment building. 4. in 1961 we moved}mt around 1ho coiner to 155 Derby Stroet,where ere confimeed to reside until 1969- 5. Eves ager my sister and I moved to 155 Derby Suet ti in we were 1 c�ti�nuod to be very familiar with 4 Bentley Street, were m nudely fam7iar with the nelgbborbood in®annual.having 90" uP there,but also bccm+se we had scvcral friends end Madves living on Bewley ShV4 mchmhM am cowns,Plnhp sod Louis Swmxwh,who raided at 14 Bentley Street. 6. During the period 1961 tol968 inclusive,4 Bentley t was Mlewiae ,Onto uoutlY operated as a 2-family apm=4building 7. 1 am net rdwA by blood or by rewrrage to Linda Mouslalos of 2 Bentley g Baleen,Maasachn wAts,01970. gigged under oath this /y� day of July 2006. tsaley BENTLEY STREET q�ti A PUBLIC,WAY e5 o o a w �9 DRIVEWAY ENTRY m� 3 N GRAN. CURB DRIVEWAY ENTRY >3 GRANCURB GRAN. CURB iF 19-FT. WIDE 101.33' HELD TO ESSEX ST. (BY DEEDS) 3�j 537'00'00'E .81'3 TO FIRE HYDRANT a A6 - STONE & MORTAR APRON 43.83' LOT - V CRNR.BD. 77.61' BLDG. Bpgf m 1ST FLOOR �'2N0 FLOOR _ 0.19' z 0 1 1 a to p 8 z LINDA J. MOUSTAKIS u^'. LOT AREA: 3,325 S.F. b2 BENTLEY ST. w BY THIS SURVEY 0.08 ACRE ofy 10 FT WIDE 10 FT NIDE N� p� CHERYL G. TUTTLE 0 w ST 2 FLOOR J 2ND 2 OOR #6 BENTLEY ST. N U+ I 4 T J Yj p J ~ m�pl m 3 �a Zmm z3 PARCEL I.D. 305-0376 UNITS 801, 802 & 803 0 R:i . = 0 �- 1.54' p 00 m.. 0PARKING REAS 4 BENTLEY STREET CONDOMINIUM 9 p w PAVED BI CONC. MAIL: p4 BENTLEY STREET, SALEM, MA 01970 m N 3 w a MASTER DEED IN BOOK 25094 PG.400 cz W I �' CRUSHED N rr PLAN BOOK 393 PLAN 32 F i m o SALEM REGISTRY OF DEEDS z z m w STONE O w ESSEX COUNTY MA m J o F a 0p 0 n $ att n 0 ZONED R2 RESIDENTIAL 2 FAMILY 'p" p p w�� a 3 4 a N K w ofJZ J N >d z 1.) PROPERTY LINE LOCATION DETERMINED BY A FIELD �z n g a m a w p INSTRUMENT SURVEY, DEEDS AND PLANS OF RECORD. ur BEING A FIELD INSTRUMENT RETRACEMENT SURVEY. 4.90' BLDG F y aJrc c5 'g+0 w m z WOOD rcJF ga DECK CRNR.BD. a x^1 BACK a w 4 p? 21.59' BLDG. .78 3 6.7 " ABUTTING LOT LINES 5.30 PROPOSED TAIR a ,65 (SHOWN BY DASHED LINES) .2 15. jog - 4 5.33 BACKin n y NOT DETERMINED BY THIS SURVEY m n is o .spy & ARE APPROXIMATE ONLY tq _ 42'3 LOT 7 DANIELS ST. CONDOMINIUM N36'58'17-W .. m'* -i B7 DANIELS ST. rcb_ NSF u z c!a CONC. BLOCK w e THOMAS E. & CATHERINE B. GILL c'rf ami^ GARAGE <0 #1 DANIELS ST. zm tiuM wx u Vam� Q0 N/F u CECELIA WU & ROBERT WILDEY q5 DANIELS ST. SCALE 1" = 10' JUNE 05, 2013 SURVEYED BY NORD£—EAST SURVEY 27 CONGRESS ST. SUIT£ 205-8, SALEM, MA 01970 Tel.(978) 5421920 E—MAIL: norde—east;verizon.net THE BUILDING SHOWN AS #4 BENTLEY STREET DOES NOT VIOLATE THE DIMENSIONAL SETBACK REQUIREMENTS IN EFFECT WHEN BUILT UNDER THE CITY OF SALEM ZONING CODE OR IS EXEMPT BY TIME PASSED. DRAWN 8Y P.McCORMACK, PLS I CERTIFY THAT THIS PLAN CONFORMS TO THE RULES AND REGULATIONS OF THE REGISTERS OF DEEDS OF THE COMMONWEALTH OF MASSACHUSETTS. DRAWING NO.: 739CONDO I CERTIFY THAT THIS PLAN FULLY AND ACCURATELY DEPICTS THE LOCATION AND DIMENSIONS DA 78 6/05/13 OF THE #4 BENTLEY STREET CONDOMINIUM BUILDING AND FULLY USTS THE UNITS CONTAINED THEREIN. SHEET 1 OF 1 THE EXTERIOR COMMON AND EXCLUSIVE USE AREAS WITH ANY SITE EASEMENTS ARE DIMENSIONED AND FULLY SHOWN HEREON. to o 5 is SCALE 25 w ( IN nTr PROJECT NO,739 DATE PROFESSIONAL LAND SURVEYOR 1 inch - 10ft COPYRIGHT: NORDE-EAST SURh'Y