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26 CHESTNUT STREET - ZBA (2) D Oh IL 26 CHESTNUT STREET Q 1 f [ Legal Notice CITY OF SALEM BOARD OF APPEAL F 745.9595 Ext.381 i Will hold a public hearing for f all persons interested in the petition 13 submitted by SEAN O'CONNOR 'k requesting a Special Permit to allow the use of an historic carriage house as I a single family dwelling for the property located at 26 CHESTNUT STREET 6 R-1. Said hearing will be held ou 1 WEDNESDAY,SEPTEMBER 21,2005 c i AT 6:30 P.M., 120 WASHINGTON (I 4 STREET,3RD FLOOR,ROOM 313. o Nina Cohen cI Chairman c[ (9/7,14) in( tel cc: City Solicitor - 10/26/05 Chairman Bd. of Appeals Board zof App p " ® _C-) w C7- o rr- zc N -K Or ujrf, D O n Tom. N C-) NOTICE OF JUDICIAL APPEAL OF ZONING DECISIONCrm � D TO MASSACHUSETTS LAND COURT Sean O'Connor, as Plaintiff in the attached Complaint, hereby gives notice that he has appealed the Decision of the Salem Board of Zoning Appeal entitled "Decision on the Petition of Sean O'Connor Requesting 4 g a Special Permit erty Located 26 Chestnut Street R-1" dated September 21, 2005, and filed with the office of the Salem City Clerk on Oct. 11, 2005. A copy of the Complaint, filed as Land Court OS ' 2005 i Misc. Case No. 314924 on Oct. 26, s attached hereto. Sean O'Connor By his attorney, William F. Quinn BBO No. 409300 Tinti, Quinn, Grover& Frey, P.C. 222 Essex Street Salem, MA 01970 (978) 754-8065 Dated: Oct. 26, 2005 Commonwealth of Massachusetts Essex, ss. Land Court Department Misc. Case No. 05.MISC 314924Ln 0 SEAN P. OR, ����Ij II�IIIf iIIIIII��IiI��IIIII�III�II�IIIIIIIII ' PLAINTIFF IIS V. m n • _' V C RICHARD DIONNE, BONNIE BELAIR, cn C:) a -I EDWARD MORIARTY, cn ROBIN STEIN, NICHOLAS HELIDES,AND NINA COHEN, CHAIRPERSON, BEING THE MEMBERS OF THE ZONING BOARD OF APPEAL OF THE CITY OF SALEM --------------- c w n= o m- COMPL AINT FOR ZONING APPEAL UNDER MGL CH. 40 A SECTION 17 N 1' r- Mi RURO—SUCTION c-) w MDC This is an appeal seeking to annul a decision of the Zoning Board of Appeal of theme n City of Salem,MA("the Board") filed with the Salem City Clerk on Oct. 11,2005 denying a Special permit to the plaintiff, on the grounds that the Board's decision was arbitrary, capricious, unreasonable, exceeded the Board's authori ty, was based upon legally untenableo gr ands and was wrong as a matter of law. PARTIES 1. Plaintiff Sean P. O'Connor is an adult who owns and resides at the property known as 26 Chestnut Street, Salem, Essex County, „ . „ MA or" O'Connor"). i 2. Defendant Richard Dionne is a member of the Zoning Board of Appeal of the City of Salem, MA(collectively "the Board") who resides at 23 Gardner Street, Salem, MA. 3. Defendant Bonnie Belair is a member of the Board who resides at 113A Federal Street, Salem, MA. 4. Defendant Edward Moriarty is a member of the Board who resides at 29 Winter Island Road, Salem, MA. 5. Defendant Robin Stein is a member of the Board who resides at 141 Fort Avenue, Salem, MA. 6. Defendant Nicholas Helides is a member of the Board who resides at 20 Central Street, Salem, MA. 7. Defendant Nina Cohen is a member and the Chairperson of the Board,whose residential address is 22 Chestnut Street, Salem, MA, and serves as the Chairperson of the Board. JURIS�ION 8. The Court has jurisdiction of this matter under Mass. G.L. Chapter 40A Section 17. 9. This case is timely, as it has been filed within 20 days from October 11, 2005 when the Board's decision was filed with the Salem City Clerk. FACTUAL ALLEGATIONS 10. The Plaintiff owns the land and buildings at 26 Chestnut Street, Salem, Essex County, MA ("the Property"). 2 11. The Property consists of a single-family g anvil residence ence to Gated on about 19,772 square feet of land, together with a second detached building presently used as an accessory garage. Ex. 1, 12. Plaintiffs accessory garage building is actually a "historic carriage house" arria a " se which is defined by Section 2-2 of the Ordinance as "An accessory or out-building, originally built to house carriages, horses, or for use as a barn, that has been in existence since 1900 at its present location." Ex. 2. 13. In 1984, the City of Salem amended the Ordinance for the purpose of encouraging preservation of such historic carriage houses by allowing them to be used as single-family dwellings by Special Permit issued by the Board. Section 5-3 (Special permit uses) states as follows: (a) Generally. Provided that permission of the board of appeals is obtained in accordance with the procedures and conditions set forth in 9-4 hereof, buildings may be constructed, altered, enlarged and used and land may be used for one(1) or more of the purposes set out in this section. (b)R-C and R-1 Districts.... (11)A historic carriage house for use as a single-family dwelling as an accessory use to a principal dwelling on the same lot, provided that parking requirements are met and upon the condition that there shall be no change to the exterior of the historic carnage house unless approved by the historical commission."Ex. 3 14. On June 29, 2005, the Plaintiff made application to the Board requesting issuance of such a Special Permit allowing him to alter and use the historic carriage house as a single-family dwelling pursuant to Section 5-3 (b) (11). Ex. 4. 15. The Board conducted a public hearing on the application on September 21, 2005. 3 f ' l 16. At the hearing, the Plaintiff presented specific evidence, including plans and testimony, that his application met all requirements of Section 5-3 (b) (11), in that a. the structure was originally built to house carriages, horses or a bam b. it has existed since before 1990 at its present location c. the Property is located in an R-1 zoning district d. his construction plans were to alter the carriage house for use as a single- family dwelling e. the property met the legal requirements for off-street parking for the two single-family residences, and f. there would be no change to the exterior of the historic carriage house unless approved by the Salem Historical Commission. 17. The Plaintiff further submitted evidence that the application would not be detrimental to the neighborhood, would promote the public health, safety, convenience and welfare and was in harmony with the purpose and intent of the Zoning Ordinance, including, but not limited to the following: a. several neighbors and abutters appeared at the hearing and spoke in support the plaintiffs application, testifying that not all historic carriage house structures in the neighborhood were being well maintained and that allowance of Plaintiffs application would enhance the neighborhood by assuring that this historic carriage house would be restored and maintained as a single-family dwelling as allowed by the Ordinance; 4 b. the on-street parking situation in the neighborhood would not be adversely effected because the plans provided legally sufficient off-street parking for both dwellings; c. the addition of one additional single-family dwelling to the neighborhood was unlikely to be a substantial detriment to the neighborhood as there are a mix of single and 2-family residences already existing in the neighborhood; d. no resident of the neighborhood, or any other person, communicated with the Board, or spoke at the hearing in opposition the application; e. no evidence of any kind was submitted to the Board which in any could have supported a finding that the structure was not a historic carriage house as defined by the Ordinance, or that the application did not conform in all respects to the criteria of section 5-3 (b)(11); f. nor was any evidence of any kind submitted to the Board that could have supported a finding that the application was not in harmony with the purposes or intent of the Ordinance, or would not promote the public healthy, safety, convenience, morals or welfare. g. Plaintiffs counsel also addressed the Board and pointed out that because the intent of the Ordinance was to encourage the historic preservation of such carriage houses the this R-1 zone, and because this particular application met all of the criteria of Section 5-3 (b)(11) and further where no opposition or evidence of negative impact of any kind had been submitted, allowance of the application should be considered to be in harmony with the purpose and intent of 5 the Ordinance, and to promote the public health, safety welfare, morals and convenience. 18. At the hearing, one or more members of the Board asked Plaintiff to agree that if the application were approved, it would contain a condition requiring the carriage house be permanently maintained in common ownership with the primary residence, and not be severed by land subdivision or the creation of a condominium. 19. Plaintiff agreed to accept such a condition, believing it to be consistent with the requirement of section 5-3 (11)that the single-family use of the carriage house be "accessory" to the principal dwelling on the same lot, and Plaintiff went even further by submitting to the Board a suggested form for a recordable real estate covenant as an additional mechanism to enforce such a condition. 20. One or more Board members then asked Plaintiff to agree to a further condition that would limit the occupancy of the carriage house solely to his family members,parents or in-laws. 21. Plaintiff and his counsel declined to accept such a condition because the Ordinance contained no such limitation as a requirement for approval. Further, because such condition was likely to negatively impact Plaintiffs ability keep the carriage house tenanted and generating income for its maintenance, such a condition would be adverse to the public policy that of preserving such carriage houses. By requesting such a condition, the Board was acting arbitrarily and exceeded its authority. 22. Members of the Board also raised the query of whether an earlier action by the City in 2005 to re-zone Chestnut Street from R-2 (residential two-family) to R-1 (residential single-family) should be considered as evidence that the public policy was to 6 not allow the special permit for conversion of a historic carriage house to allow a second single-family accessory use for properties on Chestnut Street. 23. Counsel for the applicant pointed out to the Board that Section 5-3 (b) (11) had not been repealed,remained in force and effect, and that by its terms,it specifically allowed the special permit in any R-1 zone, including Chestnut Street. 24. A member of the Salem City Council who was present at the hearing .addressed the Board on this issue. He stated that he was a member of the City Council now, and at the time that the City Council held hearings and voted the rezoning ofth e' y,.. F Chestnut Street neighborhood from R-2 to R-1. He advised the Board that the City a Council never had any intention to interfere with or repeal the provision allowing special permits to use historic carriage houses for single-family dwellings on Chestnut Street. 25. At the conclusion of the hearing, the Board voted to deny Plaintiffs application, and filed its written Decision with theSalemCity Clerk on Oct. 11, 2005.. Certified Copy attached as Ex. 4. 26. As to each of the following Counts, the Plaintiffre-alleges and incorporates all of the prior allegations contained in paragraphs # 1-25 above. COUNT I- 27. All of the evidence submitted to the Board tended to prove that the Plaintiffs application met all of the criteria for approval under section 5-3 (b) (11), that such approval would enhance rather than detract from the neighborhood, and that the application was consistent with the public policy of encouraging the preservation of historic carriage houses in the R-1 zone by allowing their use as single-family dwellings where they met such criteria. 7 28. Regardless of that evidence, and without any contrary evidence to support it, the Board voted to deny the application. 29. As a basis for its denial, the Board stated as a "finding" that " 1. Petitioner's proposal will not promote the public health, safety, convenience, morals and welfare of the City's inhabitants." 30. This "finding" is without any supporting evidence, and is, in fact completely contrary to all of the evidence presented to the Board. The "finding" is therefore erroneous, arbitrary, wrong as a matter of law, exceeded the Board's authority, and cannot be the basis of a decision by the Board. COUNT II- 3 1. I:31. As a second "finding" in support of its denial, the Board states that "2. The Special Permit requested, especially without a condition that the use of the carriage house as a single-family home be limited to family members, to include children,parents, and in-laws, only, is further not in harmony with the purpose and intent of this Zoning Ordinance, in general, and the recent Zoning change of Chestnut Street from R-2 to R-1, on or about January 27, 2005, in particular." 32. Section 5-3 (b) (11) allows a historic carriage house to be used as" a single- family dwelling", which, in tum, is defined under Section 2-2 of the Ordinance as "(A) detached building designed for or occupied by one (1) family only." 33. There is no requirement under the Ordinance that occupancy of a historic carriage house be limited to family members of the owner of the principal dwelling on the lot. 8 * 34. Where the Ordinance specifically allows for a historic carriage house to be used as a "single family,dwelling", and where the intention of this provision was to encourage the preservation of historically significant carriage houses, and farther where a condition limiting occupancy of the carriage house to family members would detract from the economic feasibility of such use, the Board's attempt to impose such condition was not in harmony with the purposes and intent of the Ordinance 35. The Board's denial because the applicant would not volunteer to accept this condition was arbitrary, wrong as a matter of law, exceeded the authority of the Board, and cannot be the basis of a denial. . " 36. Further,where Section 5-3 (b)(11)allows historic carriage houses to be used as single-family dwellings in R-1 zoning districts, it in no logical or legal sense to find, as the Board did, that the previous re-zoning of Chestnut Street from R-2 to R-I somehow implied an intention to exempt it from the provisions of Section 5-3 (b) y This finding was therefore'unsupported by any evidence arbitrary, wrong as a matter of law, exceeded the authority of the Board and cannot be the basis of a denial, COUNT III 37. To be considered as a"historic carriage house under the Ordinance, Plaintiff had to and did prove each of the following facts to the Board: a. that it was an accessory or out-building b. that it was"originally built to house carriages, horses, or for use as a barn" c. that it had "been in existence since 1900 in its present location." 9 38. The Board, in fact, found in Paragraph#20 of its Decision that the applicant did in fact establish these facts at the hearing by submitting evidence that applicant's premises were constructed circa 1840 as a main house with carriage house/bam attached. 39. Despite this finding, however, which should have been dispositive of the issue, the Board in its Decision went on to annunciate its own additional requirement that the structure had to "be used"as a carriage house since 1900, and, based upon evidence that at some time during its existence it may have been used as a residence, the Board found that this structure was not a historic carriage house. 40. The structure qualified as a historic carriage house under the Ordinance, which requires that it was "originally built to house carriages, horses or for use as a bam", The Ordinance contains no requirement that the structure had been so used throughout its existence. By unilaterally adopting such a requirement not contained in the Ordinance, the Board was acting arbitrarily, wrongfully as a matter of law and exceeded its authority. Such a finding cannot be a valid basis for a denial. REQUESTS FOR RELIEF The Plaintiff respectfully requests that the Court enter the following judgments for him, and against the Board. a. based upon the evidence, the plaintiff has met all requirements for a Special Permit to alter and use his historic carriage house as a single family dwelling as an accessory use to the principal dwelling on the same lot,provided that parking requirements are met and upon the condition that there shall be no change to the exterior of the historic carriage house unless approved by the historical commission. The Board's 10 denial of the application was arbitrary, unreasonable and wrong as a matter of law, and exceeded its authority. b. the Decision of the Board is annulled in full, and the Court either grant the Special Permit, or order that the matter be remanded to the Board for the further consistent with the findings of the Court. Sean O'Connor Plaintiff By his attorney, William F. Quinn BBO No. 409300 Tinti, Quinn, Grover&Frey, P.C. 222 Essex Street Salem, MA 01970 (978) 754-8065 Dated: Oct. 25, 2005 11 MAP 25 LOT 231 MAP 25 LOT 227 MAP 25 LOT 232 63.23' 1 60.97 MAP 25 * LOT 226 io n MAP 25 LOT 224 ON UNE AREA- 19,772 t SF. MAP 25 GARAGE . LOT 223 CD IOi 9.0 1 DECK 41•t I I_ J n e e I I GRAVEL MAP 25 DRIVEWAY LOT 225 026 9.0, 0 H M L h 12• 121.67 n CHESTNUT STREET PLOT PLAN OF LAND 26 CHESTNUT STREET L SALEM o I CERTIFY THAT THE BUILDINGS PROPERTY OF HEREON ARE LOCATED ON 6» SEAN P. THE GROUND AS SHOWN. sd*Fc�srEcfp O'CONNOR �L LA1W SCALE 1' - 20' FEBRUARY 14, 2005 NORTH SHORE SURVEY CORPORATION A EG. PROF. LAND SURVEYOR 47 LINDEN ST. - SALEM, MA LnIIn Art 4124 &Mail rOMW OWWANM DEFINNIONS Jscri sone: The area an the gond withithen the Ltoensed carder:A nthosised h7 the Proscribed radium 75s fall :nae n at a the area persona FCC to construct and °P� a commercial the dens service fi bile radio ice s>Rtem within which then is a Potential hazard them falling debris(such as ke)or collapsing mateiiaL Lot:A parcel of land Occupied dwellingFamily: Ow (1) or more Persona aocupyhrg a be Occupied by a principal buildiand to sy the +wapzc6thousekeepingunitd �[ together a a siag]e buildings of uses euetomarily Aden tante n thus (8) or nail;Provided that a group Principal building,including ouch yards and otb4rjr Persons who ars act within Pea spaces a are arranged and dated to be some degree of kinship @hall not be deemed to used with such buildings. Such lot shall hali constitute a family. 5on� on an Improved Public stroat and FW The Federal Communications Commis f a ogle lot of record,a portion eta lot ei nW assn to�or a combination of such lob or porticos of mrd, Provided that such lot is need toot OarOJ% Pruett An enclosed spans for the Only ace(1)Peladpd use. parting at temporary storage of one (1) �y corner A lot which has an interior,rrgls a[ now or tee, automobile that one (1) space be used for the automobile of a nonresident of the lees than One hundred thirty f a(186)degraea at Preml+eo. curved streetthe or or streets shall be Consideoft"(2)streets.Alot red a Guyed tower A monopole lattice tower that b s tied to the ground or other surface by diagonal corner lot if straight lines tangent to the foremod cabaa Points of the side lot knee intersect at an interior angle of leas than one hundred Ground structure:A wireless comm degrees,structure ( ) structure anchceed to the ground. oaicatians Height:The distance measured from the Bien tre orded in threcord:A e which is part of r he land level or roof level, whichever is the base of the court or a lot or described deeds or the land tower, to the highest point on the structure. bounds, the description of w�� mks and has been so Historic carriage house: M acceesoty or ont- recorded. -- or feeborn,ht b�ages �n 4 thrvug& A lot other than a carnet lot w since 1800 at ib present location ta8e mora than nae(1)street Hoapd: A building in which physical and Marina: A waterfront area having a dock or. mental ailments of human beings are treated, mooring facilities for boats for rental inciuding convalescent care,as differentiated from fuel and oil for boats only may be sold CHAIN. Premises. Shore facilities similar to motels uW Hotel,motel ar inn:Abuilding containing>enats . rented or hired out, or designed to be rented or Monopole:A type of mount that is self.support hired out, for sleeping Purposes by guests. A lag with a single shaft of @ted or concerts and a stood,Intended kitchen,neral �8 roomprimarily for ,�uBatOn or news Platform(or racks)for panel antenna anved at occupants and o servrogthebaildingo the top. be provided within the b �the public. may b Gilding or is an aoceaeosy Mount The structure at surface u ' antennas are mounted, including t whichpon Lattkv towel: A type of mount that is four (4) typea of mounts: roof- suPPorting with multiple le and self mounted (side of a buil' aide- P A cross-bracing structure mounted �)' �°�d-mounted, of structural steel. (structure other than a build. ing). 1 Supp,No.t 6 arcv.ta BAl art Ztx M 0JWDWICg USI RE(3ULATIOZO C tae manufa gm. food manufietuft Including the � �t above the higbast buildWI Of nein material and non ted in � within three hundred (800orsh d or Incidental to as w of the o C.p proposed WQ; vided that rub operations (2) In the event that a WCD Is to be concealed g• Are ad apedEpllj prohibited fiom oompletely in ; P *02Wog ncw*W atched�ad ooff 8418112 according to the rOdo]P°ge`c sncealed�°Pb')pane 9br the tion 64KhXS)herein.pronaw in ago- mittad to the building lu shall be mpeotsi r a b. M not dangerous by reason of bas not Writto tion that taune f• and firam M or esplostoa.Are not 011atkafm detzimeafti,*to. (8) Antennas used ice city and 'tete _ gency mous,nasions or hazardous by ran and exservices and antennae used ad* non of causing dna, smoke, oda; and home hass radio oaten fumes, radiation, groundwater di& cluded fivm thin secdAIL receptionare ex. Charge, noise, vibration, traffic son. (Ord. of 11204% 1 g) gestion or other nuisance, d. AreWmPadble with adjacent nonan. See. d-L Special permitdustrw uses, Deas. (a) Ocnero![ (4) Laboratories or research facilities,induct- board of appea s eb�Providgthat nd d the manufacturiwith ing medical ng i then research,eaprovided the hem-4 sand condiden,set forth ins icon 0 9.4 h buildings and structures Aeration of the facility, does not exceed stnr�altered, 1°�he non. thkee bell)int of the groes floor area of and land may be used fb �(rB00 1awn used ding and is not offensive, iaiuri. Purposes get out is this section. Of das nus,noxious,detrimental or hazardous by reason of dust,smoke. (b) R-C and R-I D&biets, The followieg are radiation, odor,fumes,noise, special Permit uses in the resideatialow �/ Congestion or otherstar tragic s. tion and one•family residential dishiet� asee��. Ili (5) Assembly or (1) Professional offices feeding two hundred of articles not e: aB°and use of home m r- t, Provided that no manuuffa tux ds g � �involving eelling to curry an room ties or Processing is carried set, goods,wares or merchandise (tl) Food and beverage maaufact not commercially created or has are wring, bot- vided that any such home occupation: thug or Processing or commissary. a. Shall be operated ea within a (l) Pirsonalmmunfc "*ckss se►v dwelling aide.with no e Communication fa d' l wire from the street, display visible I allowed as a matter Of right � 6e located b. Shall be operated reed within or on a right Pr'orided it is dents of only h7 the regi. Wing or municipals M nonresidential more than one (�u with ' gular GM&Y., 1) is thenot residing in the dwelling uldL event that a wireless commuaicg. tion device (WCD) or structure (WCS)is C' Shall udHsg not morethen twenty affixed to an existing nonresidential build. five (26) percent of the groes fw fns or municipal structure such WCD or area of the dwelling unit. WC$ shaU not exceed fifteen (15) feet in d. shall d(gPlay not more nonelecteiaannoun than one Cement sign of an m ,NCB 14 [/b Ve') tlas aaOvu►nONe UUM zortneO oaoaeA CX Art v.s tFf b. The ownership of the establishment principal dwelling as the sante moat be a �. no charitable ant ration so chs by the Comm�aw aided that parking requitemp� ora rntt wealth of Massachusetts and so no c upon the a inters that tbeee ork C r. nated by the internal Revenue S ri wage a the interior of the tithe h1 erre of the federal goverment, led rings bones union approved by Ilse hiatus• C. The use of the promises shall be eon- 0°nrob strued as being "public." There shall SPecifncaW excluded hom this category arm be no restrictions of nay type regarding membership fa any orgasiration anryoe (12)Music and dancing stvdlow dub by race, creed of color while the (13)Barber shop and beauty building opened to the"public"How6 i0ca' ever,the premises could be"rented or (14)Food processing and catering of any kind, " for "public aseemblies" or to (15)Any activity using electrical m , Other nonprofit corporations of a aim- which may interfere with radio or tdayl. Her type ail the owner,provided,how. Bion reception in nearby dwel b4PL ever,that any such "rental"shag not exceed rive (g) consecutive days nor (16)Any.other activity which would be ddtri- more than Ave(5)days in any month mental to the aelghborhoo& nor more thea forty (40) days in any (17)Municipal buildings other than sahook twelve(12)months.A notice stating the buries and&e houses. intent of this usage must be filed with the city clerk, with a copy sent to the (18)Recreational buildings aegrass operated by building inspector,atleaetten(10)days membership dubs for the bereft of their before such usage L contemplated. A members and not for gain, Including specter, with approvalwritten from the building in, P dubs, lodges and f stern asa� oda- copy Bent to the city clerk,must be obtained before any such (19)Rooming or boarding of pereom not in the usage, family. d. There shall be paved driveways at least twenty-rive(25)feet wide with at least (20)Hospitals and sanitaria for the treatment one(1)paved walkway,rive(6)feet wide of human ailments,.except those listed in at the edge of the drive.The drive may subsections(6)through(8)above,However not be "dead end" but must have at clinics, H built-within.one thousand five least two(2)entrances to an established hundred(1,500)feet of the Salem Hospital, public way. Such entrances if on the will be allowed, same street shall be at least three hun- (21)Nursing or convalescent pomp, or rest dyed (300) feet apart,, measured from homes. the nearest edge of the drive. No parking shall be allowed at any time (22) Cemeteries. on the drive. (28) Multifamily dwdlingL e. Off-drive parking spaces(in accordance with design standards of section 7-8 (24)Philanthropic and duvitabk inetitutiona. herein) must be provided at a ratio of (25) Buildings, structures or land used or to be one(1)apace for each thirtysix(36)feet used by a public,service landcorpused of free floor area (equipment and ser vice rooms not included in such areas), (26)Automobile service stations. plus oris(11 (27)Any special permit use for Bal;.SA B.4 (11) A hletoric carriage house for use as a single. and I Districte family dwelling as an accessory use to a (28) Open air motion picture theaters. 15 CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL. C t I ` lLEM. MA ` ERK S OFFICE 126 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595' MAYOR t 1095 OCT l I P 2 23 FAX: 978-740-9846 DECISION ON THE PETITION OF SEAN O'CONNOR REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 26 CHESTNUT STREET R-1: A hearing on this petition was held on September 21, 2005 with the following Board Members present: Richard Dionne, Bonnie Belair, Edward Moriarty, Robin Stein and Nicholas Helides 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 1 Massachusetts General Laws Chapter 40A. Petitioner is requesting.a Special Permit to allow use of historic carriage house to be used as a single family dwelling for the property located at 26 Chestnut Street located in an R-1 Zone. The provision of the Salem Zoning Ordinance which is applicable to this request for a Special Permit is Section 5-3 0), which provides as follows: Notwithstanding anything to the contrary appearing in this Ordinance, the Board of Appeal may, in accordance with the procedure and conditions set forth in Sections 8-6 and 9-4, grant Special Permits,for alterations and reconstruction of nonconforming structures, and for changes, enlargement, extension or expansion of nonconforming lots, land, structures, and uses, provided, however, that such change, extension, enlargement-or expansion shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. In more general terms, this Board is, when reviewing Special Permit requests, guided by the rule that a Special Permit request may be granted upon a finding by the Board that the grant of the Special Permit will promote the public health, safety, convenience and" welfare of the City's inhabitants. The Board of Appeal;after careful consideration of the evidence presented at the hearing and after reviewing the plans, makes the following findings of fact: 1. Within the matrix of relevant Salem Zoning Ordinance Citations above--referenced, the Petitioner alleges the existence of a historic-carriage house in a single-family zoning district, which will allegedly promote the public health, safety, convenience, morals and welfare of the city's inhabitants in general, and is otherwise in harmony with the purpose and intent of this Zoning Ordinance. 2. Petitioner, Mr. Sean P. O'Connor of 26 Chestnut Street, Salem is in an R-1 Zoning District, was represented by counsel at this proceeding, Mr. Scott Grover. 3. Attorney Grover presented plans and documents and legal arguments in support of the petition. DECISION OF THE PETITION OF SEAN O'CONNOR REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 26 CHESTNUT STREET R-1 4. According to Attorney Grover, the relevant provisions of the Salem Zoning Ordinance for the requested Special Permit Use in question, relate to Section 5-3(c)(5), which allows as a special permitted use a historic carriage house in a single-family district. 5. According to Attorney Grover, said carriage house may be used, "as a single-family dwelling at the property located at 26 Chestnut Street, pursuant to said Special Permit." 6. Attorney Grover presented plans indicating an intent to renovate said carriage house use for use as asingle-family dwelling. 7. According to Attorney Grover, the renovation would involve minimal change to the exterior of the structure, and that any and all changes will be subject to the jurisdiction of the Historic Commission pursuant to the Salem Zoning Ordinance Special Permit Use Provisions. 8. Attorney Grover alleged that parking was also adequate under the terms of the Ordinance and would be provided for the new dwelling, as well as the existing dwelling, pursuant to the plans submitted. 9. According to Attorney Grover, since multi-family uses are common in this neighborhood, and since there are further, allegedly several, historic carriage houses that are being used as accessory multi-family dwelling units, the Permit requested should be granted. 3 DECISION OF THE PETITION OF SEAN O'CONNOR REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 26 CHESTNUT STREET R-1 10.According to Attorney Grover, the facts, circumstances, and plans submitted would provide for a lawful use of the historic carriage house as a single-family dwelling as an accessory use to ther' ' p incipal dwelling at the address, and would not be a substantial detriment to the neighborhood and would not be in substantial derogation from the intent or purpose of this Zoning Ordinance. 11.Attorney Grover further presented documentary evidence in support of the proposal, the intent of which was to create by restrictive land covenant with adjoining premises, at 28 Chestnut Street, and by wayof s a special condition to p al the proposed request for relief, that the Petitioner would take no action that would have the effect of creating ate se ar ownership wnership of the dwelling units located in the principal dwelling and the historic carriage house. 12.The language of the proposed condition and the restrictive covenant, (Exhibit A and Exhibit B attached) according to Attorney Grover, would mean that the condition and covenant would not be limited to a special permit prohibition against sub-division of the lot, but would also prohibit creation of a condominium or a co-op, and would prohibit any alienation Of common ownership in any way of the carriage house from the principal dwelling. 13.In effect, according to Attorney Grover, the relief requested would not result in a condominium or a co-op, which might be deemed inconsistent with the new R-1 Zoning District for Chestnut Street and its immediate environs. 4 DECISION OF THE PETITION OF SEAN O'CONNOR REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 26 CHESTNUT STREET R-1 14.Several neighbors and/or abutters spoke in favor of the Special Permitted Use request of the historic carriage house as a single-family dwelling, including, but not limited to, the immediate abutters of Sean O'Connor, at 28 Chestnut Street, Annie Clay Harris, and her husband, Andrew P. Lippman, beneficiaries of the proposed restrictive covenant above- described. 15.One neighbor specifically did address the general concern of the neighborhood that, although the plans as proposed were acceptable to the neighborhood, and although Mr. Sean O'Connor's present intentions to utilize the carriage house as a single-family dwelling for family members was entirely laudable, that there was nonetheless an abiding concern about what might happen to the main house and/or the carriage house if Sean O'Connor sold the property to someone else. 16.This neighbor was particularly concerned about what might happen not just 5 or 10 years down the road, but 30 years down the road, and whether or not, despite the best intentions of all present, that somehow or another, separate ownership, separate deeds and the like, might inevitably emerge from this Special Permit scenario, resulting in condominiums, co-ops, and the like. 17.Members of the Board expressed grave concern about use of the premises as a two-family or multi-family use, notwithstanding the Petitioner's representation that the main house would be used by the Petitioner and the carriage house would be used by his family members/parents/in-laws only. 5 DECISION OF THE PETITION OF SEAN O'CONNOR REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 26 CHESTNUT STREET R-1 18.The Board members noted the very recent change in Chestnut Street Zoning and its immediate environs from an R-2 to an R-1 District, (on or about 1/27/05), establishing an immediate, clear, present and inalterable legislative determination that Chestnut Street is, and will forever hereinafter be, a single-family district where no two-family nor multi- family uses shall ever occur as of right in this unique, historic Salem neighborhood. 19.In deference to said legislative action, the Board required that Petitioner show evidence that the alleged carriage house was of the historic carriage house nature required q ed by the Ordinance, namely that it was used as a carriage house or barn, and that it had been in existence since 1900 at its present location. 20.The Petitioner did establish that this, in fact was the case, and that the premises, were constructed circa 1840, as a main house with carriage house/barn detached. 21.Next, one Board member suggested that, if there was any evidence that the carriage house had been utilized since 1900 as other than a carriage house, (namely a structure to house carriages, horses, or for similar barn uses), that this particular carriage house's use/history did not fall within the definition of historic carriage house noted in the Salem Zoning Ordinance at Article II, Section 2-2. 22.Evidence was further presented by Ms. Annie Harris indicating that the carriage house, to her knowledge as a direct abutter, was used as a residence and had and has elements of residential structural character, 6 DECISION OF THE PETITION OF SEAN O'CONNOR REQUESTING A SEPCIAL PERMIT FOR THE PROPERTY LOCATED AT 26 CHESTNUT STREET- R-1 including a kitchen and a bathroom, but has not been so used for 20 years. 23.Finally, the Board specifically inquired of the Petitioner, through his counsel, whether or not the Petitioner would be willing to place a further restriction on the Special Permit with express conditions that the carriage house would be utilized as a single-family accessory use only, and that the use would be further limited to family members only, including children of the owners, or parents of the owners, or in-laws of the owners of the principal dwelling only. 24.After consultation with counsel, the Petitioner indicated he was not agreeable to such a condition. On the basis of the above Findings of Fact, and all the evidence presented at Hearing, testimonial, documentary, and plans, the Board of Appeals, pursuant to the applicable Zoning Provisions above-noted, concludes as follows: 1. Petitioner's proposal will not promote the public health, safety, convenience, morals and welfare of the City's inhabitants. 2. The Special Permit requested, especially without a further condition that the use of said carriage house as a single-family home be limited to family members, to include children, parents, and in-laws, only, is further not in harmony with the purpose and intent of this Zoning Ordinance, in general, and the recent Zoning change of Chestnut Street from R-2 to R-1, on or about January 27, 2005, in particular. 7 DECISION OF THE PETITION OF SEAN O'CONNOR REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 26 CHESTNUT STREET-R-1 3. The Board of Appeals has further determined that since the carriage house in question had been used, albeit not in 20 years, but had been used as a residence, and had and has residential characteristics and facilities, including, but not limited to, a bathroom and a kitchen area, that said carriage house is not a historic carriage house within the meaning and intent of the Salem Zoning Ordinance, which requires that said structure be used as a carriage house, and in existence since 1900, at its present location. 4. In the event that the Board's carriage house determination is deemed unlawful, hereinafter, in any subsequent legal proceeding, in any court of competent jurisdiction, the Board of Appeals relies, in the alternative, on the legal conclusions noted in paragraphs 1 and 2 above only, and the Findings of Fact above-referenced. WHEREFORE, the Salem Zoning Board of Appeals votes three (3) in opposition and two (2) in favor to Deny the Special Permit request. Having failed to garner the four affirmative votes required to pass, the motion to grant fails and the petition for a Special Permit is denied. Special Permit Denied September 21, 2005 Edward Moriarty Board of Appeal 8 A COPY OF THIS DECISION HAS BEEN FILED W1TH 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 or the owner of record or is recorded and noted on the owner's Certificate of Title. Board of Appeal CH ) OF SALEM. MA CLERK'S OFFICE RESTRICTIVE COVENANT 7005 OCT I I P 2: 24 SEAN P . O' CONNOR, of 24 Chestnut Street, Salem, Essex County, Massachusetts 01970, owner of land at 26 Chestnut Street in Salem, Essex County, Massachusetts, as more particularly described shown on "Plot Plan of Land, 26 Chestnut Street, Salem, Property of Sean P . O' Connor" , dated February 14, 2005, prepared by North Shore Survey Corporation, which plan is to be recorded herewith, hereby creates the restrictions recited below for the benefit of the abutting property, 28 Chestnut Street, owned by Andrew B. Lippman and Annie Clay Harris, Trustees of 28 Chestnut Street Nominee Trust, their successors and assigns, as well as abutting properties on Chestnut Street, in order to preserve the character of the single-family lots on the street: 1. The renovation of the historical carriage house as an accessory use to the principal dwelling on the same lot shall be done in accordance with the terms and conditions of the Salem zoningOrdinance,e, Section 5-3 (b) (11) . 2 . No actions shall be undertaken by the owner which would have the effect of creating separate ownership of the dwelling units located in the principal dwelling and the historic carriage house. This includes, but is not limited to, subdividing of the lot, creation of a condominium or cooperative, or the alienation of common ownership in any way of the historic carriage house from the principal dwelling. This covenant is not intended to prevent an otherwise lawful rental of the carriage house dwelling unit . These restrictions are intended to take effect as restrictions governed by M.G.L. c . 184, 927-30, shall run with the land, and shall be binding on our successors and assigns . It is the intent of these restrictions to assure the continuance of single ownership of the principal dwelling and historic carriage house as an accessory use thereto, and that the property remain as one lot with single ownership. 1 For my title, reference is made to deed of Theresa W. Kavanagh to Sean P. O' Connor dated November 9 , 2004 and recorded with, the Essex South District Registry of Deeds in Book 23624, Page 161 . WITNESS my hand and seal this Z- 2- day of September, 2005 . SEAN P. O' CONNOR COMMONWEALTH OF MASSACHUSETTS Essex, ss . September , 2005 On this day of September, 2005, before me, the undersigned notary public, personally appeared SEAN P. O' CONNOR, proveevidence of identification, which were the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose . (SEAL) 04 Public A=::::�- y commission expires : 7(� tti u: Q�V�g'•v. N•^•AJ�`J• N I 2 No action shall be undertaken by the owner which would have the effect of creating separate ownership of the dwelling units located in the principal dwelling and the historic carriage house. This includes, but is not limited to, subdividing of the lot creation of a condominium or cooperative, or the alienation of common ownership in anyway of the historic carriage house from the principal dwelling. AJ UE jYOITYRK SALEM, MASS. CITY OF SALEM, MASSACHUSETTS CI OF ; ALLM, MA + BOARD OF APPEAL CL'_RK S OFFICE 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 ,STANLEY J. USOVICZ, JR. - TELEPHONE: 978-745-9595 ZOOS OCT I I P 2: 23 MAYOR FAX: 978-740-9846 DECISION ON THE PETITION OF SEAN O'CONNOR REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 26 CHESTNUT STREET R-1 A hearing on this petition was held on September 21, 2005 with the following Board Members present: Richard Dionne, Bonnie Belair, Edward Moriarty, Robin Stein and Nicholas Halides. 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 Special Permit to allow use of historic carriage house to be used as a single family dwelling for the property located at 26 Chestnut Street located in an R-1 Zone. The provision of the Salem Zoning Ordinance which is applicable to this request for a Special Permit is Section 5-3 0), which provides as follows: Notwithstanding anything to the contrary appearing in this Ordinance, the Board of Appeal may, in accordance with the procedure and conditions set forth in Sections 8-6 and 9-4, grant Special Permits for alterations and reconstruction of nonconforming structures, and for changes, enlargement, extension or expansion of nonconforming lots, land, structures, and uses, provided, however, that such change, extension,. enlargement or expansion shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. In more general terms, this Board is, when reviewing Special Permit requests, guided by the rule that a Special Permit request may be granted upon a finding by the Board that the grant of the Special Permit will promote the public health, safety, convenience and welfare of the City's inhabitants. The Board of Appeal, after careful consideration of the evidence presented at the hearing and after reviewing the plans, makes the following findings of fact: 1. Within the matrix of relevant Salem Zoning Ordinance Citations above=referenced, the Petitioner alleges the existence of a historic-carriage house in a single-family zoning district, which will allegedly promote the public health, safety, convenience, morals and welfare of the city's inhabitants in general, and is otherwise in harmony with the purpose and intent of this Zoning Ordinance. 2. Petitioner, Mr. Sean P. O'Connor of 26 Chestnut Street, Salem is in an R-1 Zoning District, was represented by counsel at this proceeding, Mr. Scott Grover. 3. Attorney Grover presented plans and documents and legal arguments in support of the petition. DECISION OF THE PETITION OF SEAN O'CONNOR REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 26 CHESTNUT STREET R-1 4. According to Attorney Grover, the relevant provisions of the Salem Zoning Ordinance for the requested Special Permit Use in question, relate to Section 5-3(c)(5), which allows as a special permitted use a historic carriage house in a single-family district. 5. According to Attorney Grover, said carriage house may be used, "as a single-family dwelling at the property located at 26 Chestnut Street, pursuant to said Special Permit." 6. Attorney Grover presented plans indicating an intent to renovate said carriage house for use as a single-family dwelling. 7. According to Attorney Grover, the renovation would involve minimal change to the exterior of the structure, and that any and all changes will be subject to the jurisdiction of the Historic Commission pursuant to the Salem Zoning Ordinance Special Permit Use Provisions. 8. Attorney Grover alleged that parking was also adequate under the terms of the Ordinance and would be provided for the new dwelling, as well as the existing dwelling, pursuant to the plans submitted. 9. According to Attorney Grover, since multi-family uses are common in this neighborhood, and since there are further, allegedly several, historic carriage houses that are being used as accessory multi-family dwelling units, the Permit requested should be granted. 3 DECISION OF THE PETITION OF SEAN O'CONNOR REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 26 CHESTNUT STREET R-1 10.According to Attorney Grover, the facts, circumstances, and plans submitted would provide for a lawful use of the historic carriage house as a single-family dwelling as an accessory use to the principal dwelling at the address, and would not be a substantial detriment to the neighborhood and would not be in substantial derogation from the intent or purpose of this Zoning Ordinance. 11.Attorney Grover further presented documentary evidence in support of the proposal, the intent of which was to create by restrictive land covenant with adjoining premises, at 28 Chestnut Street, and by way of a special condition to the proposed request for relief, that the Petitioner would take no action that would have the effect of creating separate ownership of the dwelling units located in the principal dwelling and the historic carriage house. 12.The language of the proposed condition and the restrictive covenant, (Exhibit A and Exhibit B attached) according to Attorney Grover, would mean that the condition and covenant would not be limited to a special permit prohibition against sub-division of the lot, but would also prohibit creation of a condominium or a co-op, and would prohibit any alienation of common ownership in any way of the carriage house from the principal dwelling. 13.In effect, according to Attorney Grover, the relief requested would not result in a condominium or a co-op, which might be deemed inconsistent with the new R-1 Zoning District for Chestnut Street and its immediate environs. 4 DECISION OF THE PETITION OF SEAN O'CONNOR REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 26 CHESTNUT STREET R-1 14.Several neighbors and/or abutters spoke in favor of the Special Permitted Use request of the historic carriage house as a single-family dwelling, including, but not limited to, the immediate abutters of Sean O'Connor, at 28 Chestnut Street, Annie Clay Harris, and her husband, Andrew P. Lippman, beneficiaries of the proposed restrictive covenant above- described. 15.One neighbor specifically did address the general concern of the neighborhood that, although the plans as proposed were acceptable to the neighborhood, and although Mr. Sean O'Connor's present intentions to utilize the carriage house as a single-family dwelling for family members was entirely laudable, that there was nonetheless an abiding concern about what might happen to the main house and/or the carriage house if Sean O'Connor sold the property to someone else. 16.This neighbor was particularly concerned about what might happen not just 5 or 10 years down the road, but 30 years down the road, and whether or not, despite the best intentions of all present, that somehow or another, separate ownership, separate deeds and the like, might inevitably emerge from this Special Permit scenario, resulting in condominiums, co-ops, and the like. 17.Members of the Board expressed grave concern about use of the premises as a two-family or multi-family use, notwithstanding the Petitioner's representation that the main house would be used by the Petitioner and the carriage house would be used by his family members/parents/in-laws only. 5 DECISION OF THE PETITION OF SEAN O'CONNOR REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 26 CHESTNUT STREET R-1 18.The Board members noted the very recent change in Chestnut Street Zoning and its immediate environs from an R-2 to an R-1 District, (on or about 1/27/05), establishing an immediate, clear, present and inalterable legislative determination that Chestnut Street is, and will forever hereinafter be, a single-family district where no two-family nor multi- family uses shall ever occur as of right in this unique, historic Salem neighborhood. 19.In deference to said legislative action, the Board required that Petitioner show evidence that the alleged carriage house was of the historic carriage house nature required by the Ordinance, namely that it was used as a carriage house or barn, and that it had been in existence since 1900 at its present location. 20.The Petitioner did establish that this, in fact was the ease, and that the premises, were constructed circa 1840, as a main house with carriage house/barn detached. 21.Next, one Board member suggested that, if there was any evidence that the carriage house had been utilized since 1900 as other than a carriage house, (namely a structure to house carriages, horses, or for similar barn uses), that this particular carriage house's use/history did not fall within the definition of historic carriage house noted in the Salem Zoning Ordinance at Article II, Section 2-2. 22.Evidence was further presented by Ms. Annie Harris indicating that the carriage house, to her knowledge as a direct abutter, was used as a residence and had and has elements of residential structural character, 6 DECISION OF THE PETITION OF SEAN O'CONNOR REQUESTING A SEPCIAL PERMIT FOR THE PROPERTY LOCATED AT 26 CHESTNUT STREET R-1 including a kitchen and a bathroom, but has not been so used for 20 years. 23.Finally, the Board specifically inquired of the Petitioner, through his counsel, whether or not the Petitioner would be willing to place a further restriction on the Special Permit with express conditions that the carriage house would be utilized as a single-family accessory use only, and that the use would be further limited to family members only, including children of the owners, or parents of the owners, or in-laws of the owners of the principal dwelling only. 24.After consultation with counsel, the Petitioner indicated he was not agreeable to such a condition. On the basis of the above Findings of Fact, and all the evidence presented at Hearing, testimonial, documentary, and plans, the Board of Appeals, pursuant to the applicable Zoning Provisions above-noted, concludes as follows: 1. Petitioner's proposal will not promote the public health, safety, convenience, morals and welfare of the City's inhabitants. 2. The Special Permit requested, especially without a further condition that the use of said carriage house as a single-family home be limited to family members, to include children, parents, and in-laws, only, is further not in harmony with the purpose and intent of this Zoning Ordinance, in general, and the recent Zoning change of Chestnut Street from R-2 to R-1, on or about January 27, 2005, in particular. 7 DECISION OF THE PETITION OF SEAN O'CONNOR REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 26 CHESTNUT STREET R-1 3. The Board of Appeals has further determined that since the carriage house in question had been used, albeit not in 20 years, but had been used as a residence, and had and has residential characteristics and facilities, including, but not limited to, a bathroom and a kitchen area, that said carriage house is not a historic carriage house within the meaning and intent of the Salem Zoning Ordinance, which requires that said structure be used as a carriage house, and in existence since 1900, at its present location. 4. In the event that the Board's carriage house determination is deemed unlawful, hereinafter, in any subsequent legal proceeding, in any court of competent jurisdiction, the Board of Appeals relies, in the alternative, on the legal conclusions noted in paragraphs 1 and 2 above only, and the Findings of Fact above-referenced. WHEREFORE, the Salem Zoning Board of Appeals votes three (3) in opposition and two (2) in favor to Deny the Special Permit request. Having failed to garner the four affirmative votes required to pass, the motion to grant fails and the petition for a Special Permit is denied. Special Permit Denied September 21, 2005 Edward Moriarty(g_/ . 7 Board of Appeal 8 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 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 or the owner of record or is recorded and noted on the owner's Certificate of Title. Board of Appeal CIl ' 0 SALEM, MA CL'ERK'S OFFICE RESTRICTIVE COVENANT 1895 OCT I I P 2: 23 SEAN P. O' CONNOR, of 24 Chestnut Street, Salem, Essex County, Massachusetts 01970, owner of land at 26 Chestnut Street in Salem, Essex County, Massachusetts, as more particularly described shown on "Plot Plan of Land, 26 Chestnut Street, Salem, Property of Sean P. O 'Connor" , dated February 14, 2005, prepared by North Shore Survey Corporation, which plan is to be recorded herewith, hereby creates the restrictions recited below for the benefit of the abutting property, 28 Chestnut Street, owned by Andrew B. Lippman and Annie Clay Harris, Trustees of 28 Chestnut Street Nominee Trust, their successors and assigns, as well as abutting properties on Chestnut Street, in order to preserve the character of the single-family lots on the street: 1 . The renovation of the historical carriage house as an accessory use to the principal dwelling on the same lot shall be done in accordance with the terms and conditions of the Salem Zoning Ordinance, Section 5-3 (b) (11) . 2 . No actions shall be undertaken by the owner which would have the effect of creating separate ownership of the dwelling units located in the principal dwelling and the historic carriage house. This includes, but is not limited to, subdividing of the lot, creation of a condominium or cooperative, or the alienation of common ownership in any way of the historic carriage house from the principal dwelling. This covenant is not intended to prevent an otherwise lawful rental of the carriage house dwelling unit . These restrictions are intended to take effect as restrictions governed by M.G.L. c. 184, §27-30, shall run with the land, and shall be binding on our successors and assigns . It is the intent of these restrictions to assure the continuance of single ownership of the principal dwelling and historic carriage house as an accessory use thereto, and that the property remain as one lot with single ownership . 1 ' r For my title, reference is made to deed of Theresa W. Kavanagh to Sean P. O' Connor dated November 9, 2004 and recorded with the Essex South District Registry of Deeds in Book 23624 , Page 161 . WITNESS my hand and seal this Z, 14- day of September, 2005 . SEAN P. O'CONNOR COMMONWEALTH OF MASSACHUSETTS Essex, ss . September a, 2005 On this day of September, 2005, before me, the undersigned notary public, personally appeared SEAN P. O' CONNOR, proved to me t�}rough satisfactory evidence of identification, which were �✓/V A4 t.40 to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose . (SEAL) public y commission expires : M � 2 No action shall be undertaken by the owner which would have the effect of creating separate ownership of the dwelling units located in the principal dwelling and the historic carnage house. This includes,but is not limited to, subdividing of the lot, creation of a condominium or cooperative, or the alienation of common ownership in any way of the historic carriage house from the principal dwelling.