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Legal Notice
CITY OF SALEM
BOARD OF APPEAL
745-9595 EM.361
Will hold a public hearing for all per-
sons
ersons interested in the petition submit- i
ted by SEAN OCONNOR requesting a
remand order of the Land Court to
rehear a Special Permit per Section 5-3
(b) 11 to convert Historic Carriage
House to a single family unit for the
3 property located at 26 CHESTNUT
r STREET R-1.Said hearing to be held
on WEDNESDAY,,MARCH 29, 2006
AT 6:30 P.M., 120 WASHINGTON c
)b� STREET,3RD FLOOR,ROOM 313.
Nina Cohen
oh. Chairman `
�d SN 3/15,3W-/2006 �
I
s.
I
CITY OF SALEM9 MASSACHUSETTS
BOARD OF APPEAL CII :1 i_ 11. iA
CiFr fx'S OFFICE
120 WASHINGTON STREET, 3RO FLOOR
SALEM, MASSAOHu5ETT3 01970
TELEPHONE: 976-749-9995
FAX: 978-740-9846 2606 ARR I I A 10: 02
DECISION ON REMAND ORDER OF THE LAND COURT TO REHEAR
THE PETITION OF SEAN O'CONNOR, REQUESTING A SPECIAL PERMIT,
PER SECTION 5-3 (b)(11), TO CONVERT HISTORIC CARRIAGE HOUSE
TO SINGLE-FAMILY UNIT FOR PROPERTY LOCATED AT
26 CHESTNUT STREET, R-1
A re-Hearing on said Petition pursuant to a Remand Order of the Land Court
Piper J., dated February 7, 2006, was held on March 29, 2006, with the following
Board members present:: Nina Cohen, Chairman, Edward Moriarty, Nicholas
Helides, Richard Dionne and Bonnie Belair.
1. Petitioner, Sean P. O'Connor, is requesting a Special Permit to allow use of
a historic carriage house to be used as a single-family dwelling for the
property located 26 Chestnut Street, located in an R-1 Zoning District.
2. Petitioner's original Petition and Request for Relief was denied after public
notice and Hearing. A copy of said Decision, dated September 21, 2005,
whereby the Board of Appeal voted, three in opposition and two in favor,
to deny the Special Permit request, is attached hereto as Exhibit 1.
3. Petitioner filed a timely Appeal, challenging the legality of said Special
Permit Denial with the Land Court, with proper notice to all interested
parties.
4. Litigation proceedings commenced thereafter.
5. A Remand Order entered, after initial litigation and case management
conferences, signed by Judge Piper of the Land Court, dated February 7,
2006, ordering that a new Hearing for said Special Permit relief be
granted the Petitioner, and that this Board enter a revised Decision,
consistent with said Remand Order and the Land Court's interpretation of
the relevant Salem Zoning Ordinance provisions in dispute. The Land
Court retains jurisdiction over this case, including any Appeals which may
be taken, or actions brought from or relating to the Board's further
proceedings herewith, and the Board's revised Decision.
6. Petitioner, once again, requests a Special Permit from the Board to allow
use of a historic carriage house to be used as a single-family dwelling for
the property located 26 Chestnut Street, located in R-1 Zoning District.
7. The relevant provisions of the Salem Zoning Ordinance applicable to this
request for a Special Permit include the following:
Pursuant to Article V Section 5-3 (a) generally. Provided that
permission of the Board of Appeals is obtained in accordance with
the procedures and conditions set forth in Section 9-4 hereof,
buildings and structures may be constructed, altered, enlarged,
reconstructed, and land may be used for one or more of the
purposes set out in this section.
Pursuant to Article V Section 5-3 (a) and (b) (11), the following are
Special Permit uses in the residential, conservation and one-family
residential 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 carriage house unless approved by the Historical
Commission.
2
Pursuant to Section 9-4 regarding Special Permits, pursuant to
9-4(a). In hearing and deciding applications for Special Permits,
the Board of Appeals shall decide such questions as are involved in
determining whether such Special Permit shall be granted, and
shall grant Special Permits with such conditions and safeguards as
are appropriate under this Ordinance, and shall deny Special
Permits when not in harmony with the purposes and intent of this
Ordinance. The Board of Appeals shall not have the power to grant
any Special Permit where use of land or structure is specifically
excluded from the district.
Pursuant to Section 9-4 (c), a Special Permit shall not be granted
by the Board of Appeals unless and until written application for the
Special Permit is made, stating the grounds on which such permit is
requested and public notice and hearing is held in accordance with
Chapter 40A, and unless said application complies in all other
respects with provisions of this Zoning Ordinance.
Pursuant to 9-4 (d) violation of such conditions and safeguards as
are made a part of the terms under which the Special Permit is
granted shall be deemed a violation of this Ordinance.
The Board of Appeals, after careful consideration of the evidence presented at
the re-Hearing, and after thorough review of the Plans and Petition submitted
herewith, makes the following findings of fact:
1. The Petitioner in this Remand Hearing was represented by Attorney
William Quinn, of Tinti, Quinn & Grover, Salem, MA.
3
2. Attorney Quinn presented
a Petition, Plans and multiple exhibits in
support of this Petition.
3. Petitioner noted that the locus was located within a newly created
R-1 Zoning District for the Chestnut Street historic area.
4. Petitioner provided convincing legal authority from the Land Court
proceedings above-referenced that the presence of the locus in
question in a newly rezoned district, formerly zoned R-2, recently
rezoned R-1, is legally irrelevant and immaterial to the issue of the
request for a Special Permit.
5. Petitioner noted that a review of the Salem Zoning Ordinance, as it
relates to the conversion of historic carriage houses to single-family
homes, in fact, is a specially permitted use in R-1 and R-2 and even
R-3 Zoning Districts. (See Article V Section 5-3 (c)(5) and Article V
Section 5-3 (d)(b)(8) of the Ordinance).
6. In summary, Petitioner persuasively noted, with the assistance of
the Land Court Order, that the Salem Zoning Ordinance, as
amended, on or about 1984, relative to conversion of historic
carriage houses built before 1900, permit said use/conversion with
Special Permit in single-family, two-family and even in multi-family
Salem use Zoning Districts, designated R-1, R-2 and R-3.
7. Petitioner further presented unrebutted evidence that the premises
in question qualify as a historic carriage house as defined in the
Salem Zoning Ordinance, pursuant to Article II Section 2-2 (b),
regarding accessory building or use and historic carriage house.
4
8. The Salem ZoningOrdinance defines historic carriage house as "An
e ,
9
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." Article II Section 2-2 (b).
9. In that regard, Petitioner presented evidence, including
photographs and documentary, that this large structure was not
only barn-like in scope, but was listed in the atlas of the City of
Salem, Massachusetts, dated 1897, as premises owned on or about
that date by one Eliza A. Hoffman, referencing a main home and a
carriage-like structure, designated 26 Chestnut Street. (See Exhibit
2 attached).'
10. Next, Petitioner represented that the carriage house would be used
as a single-family home accessory to the principal large dwelling,
which contains approximately 10 bedrooms.
11. Petitioner further represented that the conversion from carriage
house to single-family accessory use was indicated by a need to
provide a single family residence on the 26 Chestnut Street
compound for his in-laws from Brazil, who, often times, stay with
the Petitioner and his family for an extended period of time, in the
range of approximately three months or more, making a separate
single-family home accessory to the principal dwelling reasonable
and desirable.
12. Next, Petitioner referenced plans indicating adequate parking on
the plans presented, pursuant to the applicable Salem Zoning
That said structure may have been used for other purposes, including residential, after 1900,
does not disqualify the structure as a historic carriage house. (See Remand Order).
5
Ordinance parking regulations, including at least three designated
parking spaces shown on said plans, 19' x 9', times three spaces,
two exterior on the noted gravel driveway, with a third within the
existing garage. (1.5 spaces/unit)
13. Petitioner additionally represented that any and all changes to the
historic carriage house, now in substantial disrepair, would be
made internally, in a good and workmanlike and building-code
manner, and that no change to the exterior of the historic carriage
house would be made, pursuant to 5-3(b)(11), unless and until
approved by the Historic Commission, under prevailing and
governing Historic Commission and Historic District rules,
regulations and ordinances.
14. The Petitioner presented a Petition from neighbors and abutters in
favor of the conversion.
15. Several neighbors and abutters spoke in favor of the Petition,
indicating that it would not be detrimental to, but, in fact, would
benefit the neighborhood: improved carriage houses increase
property values and enhance the pristine historic character of this
neighborhood.
16. One neighbor spoke in opposition, challenging the alleged illegal
attempt at creation of a separate, detached single-family dwelling
on Chestnut Street, within a newly created single-family district and
within a historic district, allegedly inconsistent with the intention of
the Salem Zoning Ordinance, as amended, to prevent continued
multi-family uses within the Historic District, in general, and
Chestnut Street, R-1, in particular.
6
17. Petitioner did acknowledge neighborhood concerns regarding
ownership and use of the premises at 26 Chestnut Street, including
a single-family main residence and the proposed new accessory
single-family home, formerly a historic carriage house.
18. Petitioner not only addressed this concern, but agreed to take
irrevocable legal steps to ensure that the historic carriage house, as
converted to a single-family home, under this ordinance, be
permanently maintained in common ownership with the primary
residence and not be severed by land division or creation of a
condominium, co-op, or the like.
19. The Board also takes notice of certain findings from the Land Court
and its Remand Order, indicating that to impose a condition on the
granting of the Special Permit in question along the lines above-
noted in paragraph 18, would be consistent with the Salem Zoning
Ordinance, in general, and the Ordinance provision permitting
conversion of historic carriage houses to single-family homes, in
single-family, two-family and multi-family residential districts, in
particular, and is within the authority, power and discretion of the
Board.z
20. In this regard, the Petitioner specifically indicated that it would
agree to reasonable and related conditions on the Special Permit
Z Although the Board also notes from Remand Orders and litigation case management documents
that the relevant Salem Zoning Ordinance does not contain any requirement that such single-
family occupancy of a historic carriage house, as defined by the Salem Zoning Ordinance, may,
by Special Permit, be limited to family members, parents or in-laws of the Petitioner, and that
imposition of such a limitation, as indicated in a prior Hearing Decision of this Board, would be
unlawful as inconsistent with Salem's stated public policy of allowing such conversions to
preserve historic carriage houses in all residential districts, R-1, R-2 and R-3. No such condition
or limitation is contained, expressly or by implication, in this Decision.
7
that a maximum of two residential dwelling units for the total
parcel in question would remain as the sole residential dwelling
units hereinafter.
21. The Petitioner further agreed that the subject land parcel shall
never be subdivided or otherwise divided hereinafter.
22. The Petitioner further agreed that a restrictive covenant, attached
hereto as Exhibit 3, be made a part of this agreement, and that
under the terms of the agreement, the Petitioner was granting to
the abutting landowner, presently Annie Clay Harris and Andrew
Lippman, trustees of 28 Chestnut Street Nominee Trust, rights
under restrictive covenant to enforce the terms and conditions of
this Special Permit; the intent of said Covenant being to ensure the
continuance of smile 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, now and
hereinafter, for any and all subsequent conveyancing, title,
ownership, and use purposes.
23. The Petitioner also agreed to a special condition of the granting of
this Special Permit in the attached Exhibit 4.
On the basis of the above findings of fact, and in further consideration of the
Remand Order of the Land Court, and all of the facts and evidence and
documents and plans presented at Hearing, the Board of Appeals, pursuant to all
applicable Zoning provisions above-noted, concludes as follows:
1. The large barn-like structure at 26 Chestnut Street, in an R-1
Zoning District, is a historic carriage house and an accessory use to
8
the principal building, as defined under the Salem Zoning
Ordinance. Article II Section 2-2 and Article V Section 5-3 (b)(11).
2. The plans submitted provide adequate parking pursuant to all
applicable Salem Zoning Ordinance parking regulations.
3. Petitioner has agreed that there shall be no change whatsoever to
the exterior of the historic carriage house unless and until
authorized by the Historic Commission.
4. Pursuant to the Remand Decision, the Board finds that Petition
would enhance, rather than detract from, the neighborhood.
5. The Board further finds that the Special Permit use is in harmony
with the intent and purpose of the Zoning Ordinance in general.
6. Lastly, the Board finds that it is the express public policy of Article
II Section 2-2 (b)(11) that historic carriage houses shall be
preserved in the City of Salem, and that this Petition is consistent
with that important public policy determination and shall be
granted.
WHEREFORE, the Salem Zoning Board of Appeals votes, 4 in favor and 1
in opposition, to grant to Special Permit request, subject to the following
conditions . . .
9
I. Petitioner shall comply with all City and State statures,ordinances, codes and
regulations.
2. All construction shall be doe as per the plans and dimensions submitted 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 Occupancy shall be obtained.
7. Petitioner is to obtain approval from any City Board or Commission having
jurisdiction including, but not limited to the Planning Board.
8. Unless this decision expressly provides otherwise, any zoning relief granted does
not authorize Petitioner to demolish or deconstruct any structure (s)on the
property to an extent greater than 50%of the structure as measured by floor area
or replacement cost. If a structure on the property is demolished by any means
to an extent of more than 50%of its replacement cost or more than fifty percent
of its floor area at the time of destruction, it shall not be reconstructed except
in conformity with this Ordinance.
9. No changes to the exterior of the historic carriage house.
10. Petitioner cannot exceed the maximum of two(2)dwelling units on site.
11. Land parcel shall not be divided.
12. 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 include, 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.
Ad 0?�jz
SPECIAL PERMIT Edward MoriartSCp,
GRANTED MARCH 29, 2006 Board of Appe
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 beating the
Certification of the City Clerk that 20 days have elapsed and no appeal has been filed,
or that, if such appeal has been filed, that it has been dismissed or denied is recorded
in the South Essex Registry of Deeds and indexed under the name or the owner of
record or is recorded and noted on the owner's Certificate of Title.
Board of Appeal
,b
i IALEM. MA
CLERK'S OFFICE
RESTRICTIVE COVENANT Z015 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
S
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 7, 7, day of September, 2005 .
I
SEAN P. O' CONNOR
COMMONWEALTH OF MASSACHUSETTS
Essex, ss . September 21, 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 lwiyLtA too, — 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
XOP commission expires :
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2
- IX
A T L A S
OF
CITY OF SALEM
MASSACHUSETTS,
INCLUDING, ALSO, THE TOWNS OF
BLEREAD, PEABODY AND DANVERS,
H. E. HALFPENNY, F. B. PERKINS, C. A. POTTS,
W. C. FRONK.
BUSINESS REPRESENTATIVES:
THOMAS W. HASSAN, W. B. DONALD.
PUBLISHED BY
L. J . RICHARDS & CO . ,
SPRINGFIELD, MASSACHUSETTS.
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CITY OF SALEM, MASSACHUSETTS
LEGAL DEPARTMENT
265 ESSEX ST.,SUITE 301
TEL. (978) 745-2212 E%r. 103
FAX(978) 745-9157
ERENNARD®KFLAWY ERS.COM
ELIZABETH RENNARD,ESQ. KIMBERLEY DRISCOLL
ACTING CITY SOLICITOR MAYOR
February 17, 2006
Thomas St. Pierre
Building Commissioner
120 Washington Street
Salem, MA 01970
Re. O'Connor a Richard Dionne, et aL
Dear Mr. St. Pierre:
On February 7, 2006 the Massachusetts Land Court remanded the case of O'Connor v. Richard
Dionne, et al., based on the following:
1. where the evidence supports a finding that the structure on applicant's land is an
accessory or out-building originally built to house carriages, horses or for use as a bam,
and has been in existence since 1900 at its present location, it must be found to be a
"historic carriage house" as that term is defined by Section 2-2 of the City of Salem
Zoning Ordinance, and the fact that it may have been used for residential or other
purposes during some period of its existence does not disqualify it under that section;
2. where the applicant's land is located in the R-1 zoning district, and where
Section 5-3 of the Ordinance specifically allows the Board to issue a special permit for
conversion of such a"historic carriage house" in the R-1 zoning district,the Board
should not interpret a rezoning of the applicant's land to R-1 as disqualifying it from the
benefit of the provision of Section 5-3;
3. where the Ordinance specifically allows the Board to grant a special permit to covert
applicant's "historic house"to a single family dwelling, and if the majority of the
evidence presented to the Board supports findings that the approval of the application
would enhance rather than detract from the neighborhood, and was consistent with
Salem's public policy of preserving historic carriage houses as embodied in the
Ordinance, the Board should not deny the application on the grounds that it does not
enhance public health, safety, convenience or morals without the Board having specific
and material facts in it's record that are sufficient to support such findings;
4. where the Ordinance requires that the single-family use of a converted historic carriage
house be"accessory"to the principal dwelling on the lot, a condition imposed by the
Board that the carriage house be permanently maintained in common ownership with the
primary residence, and not be severed by land division or creation of a condominium,
would be consistent with the Ordinance, and would be within the authority of the Board,
but
5. where the Ordinance does not contain any requirement that such"single family"
occupancy of it be limited to family members, parents or in-laws of the applicant,
imposing such a limitation would be inconsistent with Salem's public policy of allowing
such conversions to preserve historic carriage houses.
Further, the Court Ordered the following:
o The case be remanded to the Zoning Board of Appeal ("the board")for the
purpose of conducting a new public hearing, receiving additional filing, and
hearing additional arguments and presentation in connection with the plaintiffs
appeal of the decision of the Board denying plaintiff a special permit.
o That the board without delay open, hold, and conclude this new open public
hearing, after full and proper notice of the hearing has been published,posted, and
served, in accordance with governing law, including G.L. c. 40A, §11, and G.L. c.
39, § 23B; notice shall be served on all parties as legally required.
o That the board upon completion of the public hearing, shall render and file with
the City Clerk, as required by law, a written decision no later than April 10,2006,
unless the court on motion allows later action.
Thank you for your attention to this matter.
Sincerely,
Elizabeth Rennard
CITY OF SALEM9, MASSACHUSETTS i l i 4LE'1. MA
BOARD OF APPEAL CLcS OFFICE
ni{
120 WASHINGTON STREET, 3RD FLOOR
SALEM, MASSACHUSETTS 01970
STANLEY J. USOVICZ, JR. TELEPHONE: 978-745.9595 IQGJ OCT I I P Z 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 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
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 Q), 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.
t.
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.
a
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 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 = 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. 1 /�
Special Permit Denied
September 21, 2005 Edward Moriarty'(
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 ; Jr ` ALCM. MA
CLEERK'S OFFICE
RESTRICTIVE COVENANT Z015 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
f
For my title, reference is made to deed of Theresa W. Kavanagh
to Sean P . OConn
' or 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 7, 2 day of September, 2005 .
SEAN P. O' CONNOR
COMMONWEALTH OF MASSACHUSETTS
Essexss . U
September 2 , 2005
,
On this day of September, 2005, before me, the
undersigned notary public, personally appeared SEAN P. O'CONNOR,
provedto me, tl}rough satisfactory evidence of identification, which
were llyt4i CP�0-9- , 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) Abdlic
ion 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
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.
C ' -i2KsOFFICE
COMMONWEALTH OF MASSACHUSETTS CL�
(SEAL) LAND COURT
A 22
DEPARTMENT OE THE TRIAL COURT `��� IsAR I S I
ESSEX, ss. MISCELLANEOUS
CASE NO. 314924
SEAN P. O'CONNOR, )
Plaintiff, )
V. )
RICHARD DIONNE, BONNIE BELAIR, )
-EDWARD MORIARTY, ROBIN STEIN, )
NICHOLAS HELIDES,NINA COHEN, )
all as members of the City of Salem )
Zoning Board of Appeals, )
Defendants. )
' REMAND ORDER
This action commenced on October 26, 2005. Sean P. O'Connor("plaintiff') filed a
complaint pursuant to G. L. c. 40A, § 17, asking this court to annul a decision of the Zoning
Board of Appeal ("Board") of the City of Salem,whose members are defendants in this action,
w
filed with the Clerk of the City of Salem October 11,2005. The Board denied plaintiff s
application for a special permit to allow use of an "historic carriage house," located at 26
Chestnut Street, Salem, as, or in conjunction with, a single family dwelling.
The court (Piper, J.) originally scheduled a case management conference for January 6,
2006. At the request of the parties, the court rescheduled the case management conference for
February 1, 2006. By facsimile dated January 31, 2006, the court received the parties' second
request to continue the case management conference, also accompanied by a proposed form of
joint motion, with accompanying form of order, requesting that the court remand this matter to
the Board, so that it might conduct a further hearing and consider additional information in
connection with the special permit appeal. The parties now have filed such a joint motion.
It is
ORDERED that this case, Land Court Miscellaneous Case No. 314924, is
REMANDED to the Board for the purpose of conducting a new public hearing,receiving
additional filing, and hearing additional arguments and presentations in connection with the
plaintiff's appeal of the decision of the Board denying plaintiff a special permit. It is further
ORDERED that without delay the Board shall open,hold, and conclude this new open
.public hearing, after full and proper notice of the hearing has been published,posted, and served,
in accordance with governing law, including G.L. c. 40A, §11, and G.L. c. 39, §23B; notice shall
be served on all parties as legally required. It is further
ORDERED that the Board,upon completion of the public hearing, shall render and file
with the City Clerk, as required by law, a written decision no later than April 10, 2006, unless the
court on motion allows later action. It is further
ORDERED that the parties shall file with the court,within ten days after the Board files
its revised decision with the Clerk of the City of Salem,a joint written status report, giving
details of the Board's action on remand, accompanied by a true copy of the Board's decision
following remand. It is further
ORDERED that the court retain jurisdiction over this case, including over any appeals
which may be taken(or other actions brought) from or relating to the Board's further proceedings
pursuant to this Order. No party currently a party to this litigation who is aggrieved by the
Board's revised decision need initiate in this court a new lawsuit appealing the Board's revised
decision,but any such aggrieved party shall, within twenty days of the filing of the Board's
decision with the City Clerk, (a) file with the court (and serve on all parties) a proper motion for
leave to amend the pleadings to assert a right to judicial review of the revised decision, with the
form of the proposed amendment annexed, and (b) file with the City Clerk written notice of
having filed the motion to_amend, accompanied by true copies of the moving papers.
�
So ordered.
;1``y the Court. (Piper, J.)
>i„ I Attest:
Deborah J. Patterson
Recorder
Dated: February 7, 2006.
ATRUE COPY
ATTEST:
�r o!u ( -�- cf�ensa .
RECORDER
3
`N y�
CV
March 28, 2006
City of Salem
Board of Appeals
City Hall
Salem, MA 01970
RE: Sean O'Connor
Roberta O'Connor
26 Chestnut Street
Salem, MA 01970
(Public Document)
I am writing in complete support of the O'Connor's request.
The carriage house will be an eternal asset if allowed to be utilized as a
residence. The character of the street and the condition of the other residences
will only be enhanced by the preservation of another structure in this
neighborhood.
You need only look at the carriage house located off of Federal Street Court to
see what happens to unutilized real estate.
I live in a restored carriage house and can attest to the costs associated with
restoring a brick structure. This is a viable and practical application.
erely,
L�
Paul J. Herrick
328 Essex Street, Unit 5
Salem, MA 01970
March 29, 2006
Nina Cohen, Chairman
Board of Appeal
Salem City Hall Annex
120 Washington Street
Salem, Ma 01970
Dear Ms. Cohen and Board of Appeal Members:
I would like to express ess m opinion regarding the matter of 26 Chestnut
Street that is before you this evening. I reside at 29 Chestnut Street and have
so for approximately one year. Prior to this I lived at 21 Chestnut Street.
One of the reasons that I chose to live on this street was because of its
unique characteristics.
I understand that in reviewing Special Permit requests that one would be
granted upon a finding by the Board that this Special Permit will promote
the public health, safety, convenience and welfare of the City's inhabitants.
Allowing a carriage house to be made into a single family dwelling would
most certainly not promote the public health, safety, convenience and
welfare of Salem but would only promote the owner of the property's
financial gain.
Additionally now everyone that has a property with a carriage house or other
like structure will want the same consideration.
,� ,. Cyd f�-2�d ��
TINTI, QUINN, GROVER & FREY, P.C.
222 ESSEX STREET
SALEM,MASSACHUSETTS 01970-3705
WILLIAM J.T1NTI TELEPHONE
tinti@tintilaw.com (978)745$065 • (978)7442948 WILLIAM B.ARDIFF(1965-1995)
WILLIAM F.QUINN MARCIA MULFORD CINI
WilliamPQuinn@aoLmm
rELECOPIER OF COUNSEL
SCOTT M.GROVER (978)745-3369
www.tintilaw.com
smgrover@tintilaw.<om
MARC P.FREY
mpfrey®tintilaw.com
MARCY D.HAUBER
mhauber@tintilaw.com
3/28/2006
Nina Cohen, Chair
Salem Board of Zoning Appeals
120 Washington Street
Salem, MA 01970
RE: Application of Sean O'Connor for 26 Chestnut Street
Dear Chairman Cohen:
This letter is to acknowledge that you are a resident of Chestnut Street, Salem
where my client's property is also located.
My client, Sean O'Connor, hereby WANES any and all possible objections that
he might have to you sitting and voting as the Chair/member of the Salem Board of
Zoning Appeals on my client's petition to the Board, which is scheduled for public
hearing on March 29, 2006, regardless of whether you might possibly be deemed to have
any conflict of interest, or indirect financial interest, in the matter.
Very truly yours,
William F. Quinn L
Sean O'Connor
Sean, Roberta, and Maya O'Connor
26 Chestnut St.
Salem,MA 01970
978-745-2419
Petition of Neighbors:
I support the O'Connor's proposal to remodel the carriage house on the 26 Chestnut
Street property for use as an accessory rental. I am aware of the O'Connor's registration
of a covenant on theirs deed restricting the ownership of the property to one party.
�
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