10 BLANEY STREET - ZBA 1YE0 BLANEY STREET B-1
COLDENECORPORTION - -- - - - -
V
T1
e Evening News, Salem,Mass.
Legal Notice
CITY OF SALEM
BOARD OF APPEAL
745-9595 Ext.381
e Will hold a public hearing for all
11 persons interested in the petition sub-
i- mitted by GOLDENEYE CORPORA-
TION requesting a Variance for front,
!f side and yard setbacks for the property
M located at 10 BLANEY STREET(134).
3, Said hearing to be held WEDNES-
DAY, JULY 15, 1998 AT 6:30 P.M.,
g ONE SALEM GREEN,2nd floor.
t- Nina Cohen,Chairman
3-
cc: City Solicitor. M. o Appeal's)
& Nina Cohen, Chairman;Bd:Appeals
12/13/99
SERAFINI, SERAFINI, DARLING & CORRENTI, LLP
ATTORNEYS AT LAW
63 FEDERAL STREET
SALEM. MASSACHUSETTS 01970
I
JOHN R. SERAFINI, SR. TELEPHONE
JOHN R. SERAFINI. JR. 978-744-0212
JOHN E. DARLING 781-581-2743
JOSEPH C. CORRENTI TELECOPIER
978-741-4683
December 10, 1999
VIA HAND DELIVERY y
City Clerk' s Office T
City Hall „
93 Washington Street O o
Salem, Massachusetts 01970 -n"-
Re:
nARe: Goldeneye Corporation v. Cohen, et al w
o y
Dear Sir or Madam:
Enclosed for filing please find a Notice of Appeal of a
Decision of the Salem Zoning Board of Appeal and a copy of a
Complaint filed in the Superior G r De artment, Essex County
Division, being Civil Action No.
i
Si
cerely,
e h�C. Correnti
JCC:dl
Enclosures
NOTICE OF APPEAL
OF A DECISION OF THE BOARD OF APPEAL FOR THE
CITY OF SALEM BY WAY
OF A COMPLAINT FILED IN THE SUPERIOR COURT
The Plaintiff named in the attached Complaint hereby gives
notice of its Appeal of a Decision of the Zoning Board of Appeal of
the City of Salem entitled "Decision on the Petition of Hawthorne
Cove Marina, Inc. , et al, Requesting an Administrative Ruling for
the Property Located at 4 Blaney Street" , which Decision was filed
with the Salem City Clerk on November 30, 1999 .
Dated: December 10, 1999
Oohn
;eh
C551666
R. Serafini, Sr.
BBO #451840
Serafini, Serafini, Darling
& Correnti, LLP
63 Federal Street
Salem, Massachusetts 01970
(978) 744-0212
n -
0
U 1
W M
0
COMMONWEALTH OF MASSACHUSETTS
Essex, ss. Department of the Superior Court
Civil Action No. :
99 234'7
GOLDENEYE CORP. , )
Plaintiff, )
V. )
NINA COHEN, RICHARD E. DIONNE, MICHAEL D. )
WARD, STEPHEN C. BUCZKO, RONALD HARRISON, )
STEPHEN HARRIS, and PAUL VALASKATGIS, AS THEY)
ARE MEMBERS OF THE ZONING BOARD OF APPEAL )
OF THE CITY OF SALEM ) _
and )
RUSSELL T. VICKERS OF HAWTHORNE COVE MARINA, ) j
INC. , ALICE M. JORDAN, DELORES JORDAN, )
STEPHEN F. HULTGREN, GEORGE L. SMITH, HEIDI
MILMAN, JESSICA ARENA, JOHN ARENA, DEBBIE ) vJ r�=51
ADAIR, SANDY MARTIN, and CAROL NARANJO, ) p
Defendants )
COMPLAINT
1. This is an appeal from an Administrative Ruling by the Board
of Appeal of the City of Salem, Massachusetts (hereinafter the
"Board") wherein the Board exceeded its authority by "granting
the Petitioner' s Request for an Administrative Ruling. " The
Petition sought to overturn the Decision of the Zoning
Enforcement Officer' s Certification to the Department of
Environmental Protection ("DEP") pursuant to the Plaintiff' s
Chapter 91 Waterways License Application that the use of the
property, as proposed in the c. 91 filing, complied with local
zoning.
2 . The property at 4 Blaney Street, Salem, Massachusetts
(hereinafter the "Site") is owned by the Plaintiff.
3 . The Decision exceeds the authority of the Board in that it is
not factually based, it relies upon evidence and events not
related to the Petition or presented to the Board, and is
arbitrary and capricious in a manner contrary to the Salem
1
Zoning Ordinance (hereinafter the "Ordinance") and
Massachusetts General Laws Chapter 40A.
Parties
4 . The Plaintiff, Goldeneye Corporation, a corporation duly
existing under the laws of the State of Maryland and having a
principal place of business at 4 Blaney Street, Salem,
Massachusetts 01970, is the owner of the property located at
4 Blaney Street, Salem, Massachusetts.
5. The Defendant, Nina Cohen, is a Member of the Salem Zoning
Board of Appeal and resides at 22 Chestnut Street, Salem,
Massachusetts 01970.
6. The Defendant, Richard E. Dionne is a Member of the Salem
Zoning Board of Appeal and resides at 23 Gardner Street,
Salem, Massachusetts 01970 .
7 . The Defendant, Michael D. Ward, is a Member of the Salem
Zoning Board of Appeal and resides at 4 Hilton Street, Salem,
Massachusetts 01970.
8. The Defendant, Stephen C. Buczko, is a Member of the Salem
Zoning Board of Appeal and resides at 27 Surrey Road, Salem,
Massachusetts 01970.
9 . The Defendant, Ronald Harrison, is a Member of the Salem
Zoning Board of Appeal and resides at 450 Lafayette Street,
Salem, Massachusetts 01970.
10. The Defendant, Stephen R. Harris, is a Member of the Salem
Zoning Board of Appeal and resides at 148 North Street, Salem,
Massachusetts 01970.
11. The Defendant, Paul Valaskatgis, is a Member of the Salem
Zoning Board of Appeal and resides at 24 Gables Circle, Salem,
Massachusetts 01970 .
12 . The Defendant, Hawthorne Cove Marina, Inc. , Russell T. Vickers
is a Petitioner with an address of 10 White Street, Salem,
Massachusetts 01970.
13 . The Defendant, Alice M. Jordan, is a Petitioner who resides at
97 Derby Street, Salem, Massachusetts 01970.
14 . The Defendant, Delores Jordan, is a Petitioner who resides at
97 Derby Street, Salem, Massachusetts 01970.
2
15. The Defendant, Stephen F. Hultgren, is a Petitioner who
resides at 6 White Street, #5, Salem, Massachusetts 01970.
16. The Defendant, George L. Smith, is a Petitioner who resides at
6 White Street, #5, Salem, Massachusetts 01970.
17 . The Defendant, Heidi Milman, is a Petitioner who resides at
109 Derby Street, Salem, Massachusetts 01970.
18. The Defendant, Jessica Arena, is a Petitioner who resides at
6 White Street, #2 , Salem, Massachusetts 01970.
19 . The Defendant, John Arena, is a Petitioner who resides at 6
White Street, #2 , Salem, Massachusetts 01970.
20. The Defendant, Debbie Adair, is a Petitioner who resides at 96
Derby Street, Salem, Massachusetts 01970.
21. The Defendant, Sandy Martin, is a Petitioner who resides at 6
White Street, #5, Salem, Massachusetts 01970.
22 . The Defendant, Carol Naranjo, is a Petitioner who resides at
6 White Street, #5, Salem, Massachusetts' 01970.
Jurisdiction
23 . This Court has jurisdiction to hear this matter pursuant to
Massachusetts General Laws Chapter 40A, Section 17 .
Facts
24 . On October 21, 1999, the Defendant Petitioners filed with the
Board a Notice of Appeal of a Decision of the City of Salem
Zoning Enforcement Officer. The appeal sought to rescind a
Zoning Compliance Certificate signed by the Zoning Enforcement
Officer pursuant to Plaintiff 's c. 91 Waterways Permit
Application to DEP, which Certificate recited that the
proposed plans submitted to DEP complied with local zoning.
25. A public hearing was held by the Board on November 17, 1999 ,
where the Board voted to "grant the Petitioner' s request for
an Administrative Ruling" .
26 . On November 30, 1999 , the Board filed with the Salem City
Clerk its Decision, a certified copy of which is attached
hereto as Exhibit "A" .
27 . The Plaintiff is the owner of the Site and is a person
aggrieved by the Decision of the Board.
3
28. The Decision of the Board exceeds its authority is arbitrary
and capricious, and based on legally untenable grounds in
that:
a. The Board' s vote to "grant the Petitioner's request for
an Administrative Ruling" is vague, arbitrary, and not
based on facts recited in the Decision.
b. The Board lacks authority to regulate uses or structures
beyond the mean low water level pursuant to the terms of
the Salem Zoning Ordinance, Section 3-3 (5) .
C. The Chapter 91 License Application, plans and proposed
uses and structures filed with DEP were never presented
to or reviewed by the Board. Thus, the Board' s
presumptive action to "prohibit issuance of a building
permit or certificate of occupancy for any building or
use as described in the application and plans submitted
to DEP" is arbitrary and capricious.
d. The Board improperly based its Decision on its assumption
that a separate Petition filed by Plaintiff with the
Board earlier in the year concerning potential uses of
the site, a Petition which the Plaintiff subsequently
sought to withdraw from the Board, was a comprehensive
view of the Chapter 91 Application filed with DEP.
WHEREFORE, the Plaintiffs pray that:
1. The Decision of the Board be annulled, and that the
Decision of the Zoning Enforcement Officer be upheld.
2 . That they be awarded their costs.
3 . The Court grant such other relief as is just and
equitable.
PLAINTIFF,
Goldeneye Corporation
By its Attorneys,
December 10, 1999 ✓ Cn/l///1�
J s h C. Correnti
0 #551666
ohn R. Serafini, Sr.
BBO #451840
Serafini, Serafini, Darling
& Correnti, LLP
63 Federal Street
Salem, Massachusetts 01970
(978) 744-0212
4
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DECISION ON THE PETITION OF HAWTHORNE COVE MARINA INC, et al,
REQUESTING AN ADIMISTRATIVE RULING FOR THE PROPERTY LOCATED AT 4
BLANEY STREET I
A hearing on this petition was held on November 17,1999 with the following Board
Members present: Nina Cohen, Chariman, Richard Dionne, Stephen Harris, Stephen
Buczko and Ronald Harrison. Notice of the hearing was sent to abutters and others and
notices of the hearing were published in the Salem Evening News in accordance with
Massachusetts General Laws Chapter 40A.
Petitioner are requesting an Administrative Ruling that the Board rescind the decision of
the Salem Zoning Officer to issue a certificate of Zoning Compliance in connection with
an application of a Waterways License for the structures located at 4 Blaney Street I.
After hearing the evidence the Board of Appeal makes the following findings of fact:
1. Petitioners, represented by Attorney George W. Atkins III, Esq. are abutters and
neighbors of the property at 4 Blaney Street in an Industrial Zone that is owned by
Goldeneye Corp.
2. Petitioners sought relief under Section 9-3 (d) of the Salem Zoning Ordinance,
requesting that the Board rescind the decision of Peter Strout, the Building Inspector,
to issue a Certificate of Zoning Compliance, stating that the Goldeneye application
and plans are not in violation of local zoning ordinances. Petitioners further seek to
prohibit issuance of a Building Permit or Certificate of Occupancy for any building or
use at the Blaney Street property (the "site") as described in the Goldeneye
application and plans.
3. Goldeneye is represented by Joseph C. Correnti, Esq. in connection with its
application to this Board and also its application to the Massachusetts Department of
Environmental Protection ("DEP") for a Waterways License for the site.
4. Goldeneye initially applied on August 18, 1999 for a Special Permit/Variance for
marine related and water dependent uses for the site. At its initial presentation and
at the subsequent site visit and subsequent meetings with the Board, Goldeneye
described in general terms some of the intended uses for the site. These included a
marina and pier, walkway, barge, gangways and terminal building, with parking for
EXHIBIT
"Au
DECISION OF THE PETITION OF HAWTHORNE COVE MARINA REQUESTING AN
ADMINISTRATIVE RULING FOR THE PROPERTY LOCATED AT 4 BLANEY STREET
page two
200 + cars. Goldeneye also submitted a "Vicinity Map" and plan entitled " Parking Lot
Layout Plan" prepared by Bourne Engineering of Franklin, Ma.
5. Goldeneye's 'nposed plan was deemed not to be in compliance with existing
zoning regulations affecting the industrial district. The Board asked for further
information regarding the types of businesses that might operate on the site, but
were not provide any further information by Goldeneye.
6. On October 20, 1999, Goldeneye requested leave to withdraw the petition on the
grounds that the Board lacked authority to regulate uses of structures beyond the
mean low water level.
7. Goldeneye's request to withdraw the petition was denied, and the Zoning Board
voted 5-0 to deny the requested relief.
Therefore, based on the fact and on evidence presented, Nina Cohen made a motion
and was seconded that the Zoning Board of Appeal voted unanimously, 5-0 to grant the
petitioners request for an Administrative Ruling.
/ CSck �
Nina Cohen, Chairman
Board of 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 17 of the
Massachusetts General Lavcs, Chapter 40A, and shall be filed within 20 days aiier 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 bearing the certificate 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.
A�TRUE COPY ATTEST
eel
CITY CLE RK
SALEM. MASS,
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of '$tt1Pm, tzssttcllu$Ptts
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�attrD of I T 10 33 '98
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CITY OF SALCM. MAS
Cl I RK'S OFT-ICE,
DECISION OF THE PETITION OF GOLDENEYE CORPORATION REQUESTING A
VARIANCE FOR THE PROPERTY LOCATED AT 10 BLANEY STREET B-1
A hearing on this petition was held July 15, 1998 with the following Board
members present: Nina Cohen, Paul Valaskagis, Michael Ward, Stephen Buczko
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 is requesting a Variance from front, side and rear yard setbacks
for the property located at 10 Blaney Street located in a B-1 zone.
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:
I . Petitioner, Goldeneye Corporation, a new owner of the property, was
represented by Attorney Joseph Correnti of Salem.
2 . The petitioner seeks a variance for front, side and rear yard setbacks
for the property located at 10 Blaney Street to reestablish the
historical lot lines for the dwelling house located on the property.
3. The subject property is located in the B-1 District and contains a
structure with (5) dwelling units .
4 . In 1964, this lot, along with (4) other contiguous parcels, was acquired
and continuously held by a single owner. Thereafter, the lots merged for
zoning purposes. The stated purpose of reestablishing the dwelling house
lot is so that the owner may be able to treat it separately for the
purpose of management and financing.
5 . There are no proposed changes to the footprint of the building and the
new owner intends to invest in and upgrade the property.
6. Several neighbors of the subject property attended the hearing,
including Michael McLaughlin and Claudia Chuber, and made inquiries
regarding the nature of the requested variance. No opposition to the
petition was presented.
DECISION OF THE PETITION OF GOLDENEYE CORPORATION REQUESTING
A VARIANCE FOR THE PROPERTY LOCATED AT 10 BLANEY STREET B-1
page two
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.
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, 5-0 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 . Petitioner shall obtain approval from any City Board of Commission
having jurisdiction including, but not limited to the Planning Board.
3. All requirements of the Salem Fire Department relative to smoke and
fire safety shall be strictly adhered to.
Variance Granted n \
July 15, 1993 ^�C' / SC'^�
Stephen Buczko, Member
r Board of Appeal
4 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 shall be 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 bearing 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.
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