The URL can be used to link to this page

7 CLARK STREET - ZBA 7 -Clark St. R_1 Paul Ferragamo, Tr. - �� PEARL. McNIFF. CREAN. COOK B6 SHEEHAN ATTORNEYS AT LAW 30 MAIN STREET JOHN M.CREAN PEABODY.MASSACHUSETTS 01960-5552 MATTHEW J.KAVANAGH OLIVER T.COOK MICHAEL S. HOULDEN PEABO DV 15081531-1 710 WILLIAM H.SM EEHAN III LAWRENCE J.O'K EEFE BOSTON 16171289-3456 THOMAS C.REGA N.PC FAX I5081 531 4895 MICHAEL T.SMERCZYNSKI.PC SAMUEL PEARL OF COUNSEL JOHN A.MCNIFF OF COUNSEL ARTHUR J.FRAWLEY,JR..OF COUNSEL July 2 , 1992 Richard A. Bencal Stephen Touchette 19 Goodell Street 452 Loring Avenue Salem, MA 01970 Salem, MA 01970 CM# P 828 820 001 CM# P 828 820 004 Richard T. Febonio Francis Grealish 4 Arnold Drive 8A Cleveland Road Extension Salem, MA 01970 Salem, MA 01970 CM# P 828 820 002 CM# P 828 820 005 Edward Luzinski 24 Hardy Street Salem, MA 01970 CM# P 828 820 003 Gentlemen: Please take notice that Paul Ferragamo, trustee of the Ferragamo Family Trust has filed in Essex Superior Court an appeal from the June 3, 1992 decision of the Poard of Appeal of Salem denying his application for a variance. A copy of the complaint filed in Superior Court and a copy of notice filed with the City Clerk is enclosed. Very tr ly yours , William H. eehan III WHS:ms Enclosures Certified Mail/RRR PEARL. MCNIFF. CRFAN, COOK & SIIFFIIAN ATTORNEYS AT LAW 30 MAIN STREET JOHN M.CREAN PEABODY.MASSACHUSETTS 01960-5552 MATTHEW J. KAVANAGH OLIVER T.COOK MICHAEL S. HOULDEN PEA BODY 15081 531 1710 WILLIAM H.SH EEHAN 111 LAWRENCE J.O-KEEFE THOMAS C.REGAN.PC BOSTON 16171 2693456 MICHAEL T.SMERCZYNSKI.PC FAX 15081 531 4895 SAMUEL PEAR"OF COUNSEL JOHN A.MCNIFF.OF COUNSEL ARTHUR J.FRAWLEY,JR.,OF COUNSEL July 2 , 1992 Ms . Josephine Fusco Salem City Hall City Clerk' s Office 93 Washington St . Salem, MA 01970 Re: Paul Ferragamo, Trustee of the Ferragamo Family Trust Vs : Richard Bencal , et als Dear Ms . Fusco: You are hereby notified, pursuant to M.G.L. c . 40A, §17 , that an action has been filed in the Essex Superior Court appealing from the denial of a variance by the Board of Appeal of the City of Salem sought by the plaintiff Paul Ferragamo, Trustee of the Ferragamo Family Trust, for their property at 7 Clark Street, Salem, Massachusetts . A copy of the complaint is attached to this notice . Very truly yours , William H. SheehanII Enclosure WHS:aml b 8 CITY OF SALEM - MASSACHUSETTS KEVIN T. DALY Legal Department LEONARD F.FEMINO Cit'Solicitor 93 Washington Street Assistant City Solicitor 508-705-0600 Salem,Massachusetts 01970 508-921-1990 September 30, 1992 Mr. Richard Bencal, Chairman Salem Board of Appeal City of Salem One Salem Green Salem, MA 01970 RE: Ferragamo Dear Richard: Enclosed herewith please find several notices pertaining to Depositions to take place in the above-mentioned matter scheduled for November 2, 1992. Would you kindly inform all members of same. Please call with your questions. Very truly yours, Leonard F. Femino LFF/gsw Enclosure COMMONWEALTH OF MASSACHUSETTS Essex, ss . Superior Court Department Civil Action No. 92-2097 PAUL FERRAGAMO, TRUSTEE ) OF THE FERRAGAMO FAMILY ) TRUST, ) PLAINTIFF ) VS. ) RICHARD BENCAL, ET ALS ) AS THEY ARE MEMBERS OF ) THE SALEM BOARD OF ) APPEALS, ) DEFENDANTS ) NOTICE OF DEPOSITION To: Leonard Femino, Esquire One School Street Beverly, MA 01915 Please take notice that on Monday, November, 2 , 1992 , at 10 : 00 a .m. , at the offices of Pearl , McNiff , Crean, Cook & Sheehan, 30 Main Street, Peabody, Massachusetts , pursuant to Mass . R. Civ. P. 30, William H. Sheehan III will take the deposition of the Keeper of Records of the Salem Board of Appeals , before a notary public or other officer authorized by law to administer oaths or take depositions . The deposition will continue from day to day until completed. Respectfully submitted, Paul Ferragamo, Trustee of the Ferragamo Family Trust, By his Attorney, William H . Sheehan III BBO#: 457060 PEARL, McNIFF, CREAT1, COOK & SHEEHAN 30 Main Street Peabody, Massachusetts 01960 Telephone: ( 508) 531-1710 Dated: September 22 , 1992 cc: Advanced Court & Conference Reporting 1 (fitu of 'Sttlem, Httssttcllusetts Paxra of 'Appeal June 23, 1992 Notice is hereby given that as of June 17, 1992 the deeasion of the Board of Appeal has been filed in the office of the City Clerk to deny the petition of Paul Ferragamo which had been remanded back to the Board of Appeal for Variances to allow construction of a single family dwelling at 7 Clark St. BOARD OF APPEAL Brenda M. Sumrall Clerk of the Board 'Appeal from this decision,.if any, shall be made pursuant to section 17 of the Mass. General Laws, Chapter 808, and shall be filed within 20 days after the date-of filing of this decision in the office of the city clerk. - Pursuant to Mass. General Laws, Chapter 808, Section 11, the Variance or F�)eciai Perrni,,grz r,-.ed herein S:� !l not take effect until a copy of the decision, l:eE-inq iha cert ticatio 1 of the City Clerk that 20 days have ' elapsed an''' no appeal has beer. fl!cd. or that, if such appeal has been filed, that if has been dismissed or denied is recorded in the South EsseK F.egistry of Deeds and indexed under the name or the owner of record or is rocorded and noted on the owner's Certificate of Title. BOARD OF APPEAL y e4 \ti (CRU Lif �ttlem fttsencilus ffs \ s AV Board of _Aupenl , 3 Oq py 'G CITY OF 1 F(., REMANDED DECISION ON THE PETITION OF PAUL FERRAGAMO FOR A VARIANCE AT i CLARK STREET (R-1 ) A hearing on this petition was held June 3, 1992 with the following Board Members present: Richard Bencal, Chairman; Richard Febonio, Francis Grealish, Edward Luzinski and Stephen Tourette. 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 Variances to allow the construction of a single family home in this R-1 district. This petition was denied by the Board of Appeal on March 18, 1987 and again on July 5, 1989 . The latter denial was appealed and subsequently remanded back to the Board by the Court. t The Variance which has been requested may be granted upon a finding of the Board that: a. Special conditions and circumstances exist which especially affect the land, building or structure involved and which are not generally affecting other lands, buildings or structures in the same district. b. I/iteral enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioner. j c. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the district or the purpose of the Ordinance. The Board of Appeal, after careful consideration of the evidence presented at the hearing and after viewing the plans, makes the following findings of fact: 1. The petitioner failed demonstrate or to meet the burden of proof relative to legal hardship. DECISION ON THE PETITION OF PAUL FERRAGAMO JUN 17 3 04 FN '9Z FOR A VARIANCE AT 7 CLARK STREET, SALEM CITY OF mkt page two CLERK' pr ;- _ >S On the basis of the above findings of fact, and on the evidence presented at the hearing, the Board of Appeal concludes as follows: 1. Special conditions do not exist which especially affect the subject property and not the district in general . 2. Literal enforcement of the provisions of the Zoning Ordinance would not involve substantial hardship to the petitioner. 3 . The relief requested cannot be granted without substantial detriment to the public good or without nullifying and substantially derogating from the intent of the district or the purpose of the Ordinance. Therefore, the Zoning Board of Appeal voted three (3) in favor two ( 2) opposed to the motion to grant, having failed to garner the required four affirmative votes to pass, the motion is defeated and the petition is denied. VARIANCE DENIED June 3, 1992 Francis X. Grealish, Jr. , Secretary Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK APPEAL FROM THIS DECISION, IF ANY, SHALL BE MADE PURSUANT TO SECTION 17 OF THE MGL 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 MGL 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 PASSED AND NO APPEAL HAS BEEN FILED, OR THAT, IF SUCH APPEAL HAS BEEN FILED, THAT ITK HAS BEEN DISMISSED OR DENIED IS RECORDED IN THE SOUTH ESSEX REGISTRY OF DEEDS AND INDEXED UNDER THE NAME OF THE OWNER OF RECORD OR IS RECORDED AND NOTED ON THE OWNER'S CERTIFICATE OF TITLE. BOARD OF APPEAL STATEMENT IN SUPPORT OF PETITION FOR VARIANCE PROPERTY ADDRESS: 7 Clark Street, Salem, Massachusetts OWNER/PETITIONER: Paul Ferragamo, Trustee of The Ferragamo Family Trust ASSESSOR'S MAP: 3 LOT NO. : 79 DEED REFERENCE: Commonwealth of Massachusetts Land Court Essex Registry of Deeds , Southern District, Salem, Massachusetts , Certificate 49669 , Registration Book 226 , Page 49669 The Petitioner respectfully requests the variances necessary in order to construct a single-family house on the property located at 7 Clark Street as shown on a plan submitted with this statement, which plan has been marked as Exhibit "A" . The property is currently an empty lot of 5, 000 square feet. Use of the property for this proposed purpose would constitute an improvement to the lot and would be consistent with the prevailing uses in the neighborhood.' In order to proceed with this project, Petitioner requires variances from the requirements of Section VI , TAble 1 of the Zoning Ordinance, as to lot area, lot area per dwelling unit, and lot width, as shown on Exhibit B attached hereto. The subject lot was established in its present configuration on or about November 30 , 1921, pursuant to a decree (No. 7159 ) of the Land Court In the Matter of the Petition of Frederick H. Griswold, prior to the enactment of the Zoning Ordinance. The subject lot is shown as Lot 104 on a plan of land referred to as Plan 7159B, Sheet 3 in Mr. Griswold's original Certificate of Title . A copy of said plan is submitted herewith as Exhibit "C" . The lot is shown on the Assessor' s Map No. 3 as Lot 79 , a portion of which is attached hereto and marked "D" . Because this lot - like many others in this neighborhood - fails to meet the minimum requirements of the ordinance for an R-1 zone, the property cannot be developed for any reasonable use consistent with the zoning scheme without the requested variances . The neighborhood in which the subject property lies consists mainly of single-family homes, a substantial number of which are on lots comparable in size to the subject lot. The public good will be served by the construction of an additional single-family home in this neighborhood, as it will make productive use of what is presently vacant land and will serve to further stabilize the character of the area. The present ordinance permits the proposed use; granting this petition will neither derogate from the existing ordinance nor be harmful to the public good. Therefore, the Petitioner requests that the variances be granted so he may usefully develop this property. Respectfully submitted, Paul Ferragamo, Trustee of the Ferragamo Family Trust, By his Attorney, Dated: Matthew J. Kavanagh PEARL, McNIFF, CREAN, COOK & SHEEHAN 30 Main Street Peabody, Massachusetts 01960 Telephone: ( 508 ) 531-1710 LOT DIMENSIONS WITH PROPOSED STRUCTURE: AREA: 5, 000 square feet AREA PER DWELLING UNIT: 5, 000 square feet WIDTH: 50 feet COVERAGE: Less than 30% DEPTH OF FRONT YARD: 17 feet WIDTH OF SIDE YARD: 11 feet DEPTH OF REAR YARD: 57 feet HEIGHT OF PROPOSED STRUCTURE: 24 feet HEIGHT (NO. OF STORES) : 2 story FENCES: None DISTANCE BETWEEN BUILDINGS : N/A REQUESTED VARIANCES: a) Lot Area: From 15, 000 square feet to 5, 000 square feet b) Lot Area per dwelling unit: From 15 , 000 square feet to 5 , 000 square feet C . Lot Width: From 100 feet to 50 feet Exhibit "B" 3` 113-92.j2:58:15.81039-LEGE ; �`i3-92.12:58:15.81039-LEGE E H § r CITY OF SALEM CITY OF SALEM "`. BOARD OF APPEAL ! - BOARD OF APPEAL 745-9595 Ext. 381 745-9595 Ext. 381 Will hold a public hearing for all,persons inter- Will hold a public hearing for all persons inter- ested in the petition of PAUL FERRAGAMO for ested in the petition of PAUL FERRAGAMO for Variances at 7 CLARK ST.(R-D which were denied Variances at 7 CLARK ST.(R-I)which were denied by the Board of'Appeal on July 5, 1989 and has by the Board of Appeal on July 5, 1989 and has .subsequently been remanded back to the board. subsequently been remanded back to the board. Said hearing to be held WEDNESDAY, JUNE 3, P Said hearing to be held WEDNESDAY, JUNE 3, 1992 at 7:00 p.m.,ONE SALEM GREEN,2nd floor. 1992 at 7:00 p.m.,ONE SALEM GREEN,2nd floor. RICHARD A. BENCAL, Chairman RICHARD A. BENCAL, Chairman May 20, 27, 1992 SN81039 t May 20, 27, 1992 SN81039 F v,1'13-92.12:58:15.81039-LEGE 4 f CITY OF SALEM BOARD OF APPEAL - ..,( 745-9595 Ext. 381 Will hold a public hearing for all persons inter- ested in the petition of PAUL FERRAGAMO for Variances at 7 CLARK ST.(R-1)which were denied by the Board of Appeal on July 5, 1989 and has subsequently been remanded back to the board. Said hearing to be held WEDNESDAY,JUNE 3, 1992 al 7:00 p.m.,ONE SALEM GREEN,2nd floor. RICHARD A. BENCAL, Chairman May 20, 27, 1992 SN81039 PEARL, MCNIFF, CREAN, COOK & SHEEHAN ATTORNEYS AT LAW 30 MAIN STREET JOHN M.CREAN PEABODY,MASSACHUSETTS 01960-5552 MATTHEW J.KAVANAGH OLIVER T.COOK MICHAEL S.HOULOEN WILLIAM H.BH EEHAN III PEABODY(508)531-1710 LAWRENCE J.O'KEEFE THOMAS C.REGAN,PC BOSTON(617)289-3456 MICHAEL T.SMERCZYNSKI,PC FAX(508)531-0895 SAMUEL PEARL,OF COUNSEL JOHN A.MCNIFF,of COUNSEL ARTHUR J.FRAWLEY,JR.,of COUNSEL May 8, 1992 Salem Board of Appeal Salem, MA 01970 Attn: Brenda Re: Ferragamo Dear Brenda: Enclosed please find our check made payable to Salem Evening News in the amount of $76 .50 covering publication cost for the hearing after remand in the abovesaid matter. I understand the hearing will be held on June 3, 1992 . Thank you for your attention. Sincerely s, f ; Williameee—han III WHS:cs Enclosure ALEXANDER, FEMINO & L.AURANZANO ATTORNEYS AT LAW ONE SCHOOL STREET BEVERLY, MASSACHUSETTS 01915 LEONARD F. FEMINO TELEPHONE(508)921-1990 THOMAS J. ALEXANDER FAX(508)921-4553 MICHAEL C. LAURANZANO LORI J. LYNN March 6, 1992 Mr. Richard Bencal Chairman, Salem Board of Appeals City of Salem One Salem Greer. Salem, MA 01970 Dear Richard: Enclosed herewith please find a Trial Notice issued in the Superior Court. Please call me at your earliest convenience to discuss same. Very truly yours, Leon F. Femino LFF/gsw Enclosure COMMONWEALTH OF MASSACHUSETTS Department of the Trial Court Essex, as. Superior Court Ll vs. i TRIAL NOTICE*• The above a 1 d case is being called for Jury)/Jury-Waive ) Trial on <� at 1 J f-! J Y� at Essex Superior Court House, 32 Federal St. , Salem MA with the Honorable JO , �N T% RONAN , presiding. ALL COUNSE MUST APPEAR READY FOR TRIAL ON THE ABOVE DATE WITH WITNESSES' WITHOUT WITNESSES WITNESSES ON 20 min. TELEPHONE NOTICE PLEASE NOTIFY THE COURT PROMPTLY OF ANY SETTLEMENTS CLERK'S OFFICE 508-741-0200 COUNSEL SHALL BRING THE FOLLOWING DOCUMENTS WITH THEM. IF NOT ALREADY SUBMITTED AT THE TIME OF THE CONCILIATION CONFERENCE. A) trial memo; B) list of witnesses; C) list of exhibits ; D) any pre-trial stipulations` J7r—� � i��✓�' � / C / G�Lf j DATE OF HEARING !O a �n � rK �( PETITIONERS U LOCATION MOTION: TO GRANT SECOND TO DENY SECOND TO RE-HEAR SECOND LEAVE TO WITHDRAW SECOND TO CONTINUE SECOND ROLL CALL PRESENT GRANT DENY /WITHDRAW RE-HEAR CONTINUE RICHARD BENGAL RICHARD FEBONIO FRANCIS GREALISH EDWARD LUZINSKI STEPHEN TOUCHETTE ASSOCIATE MEMBERS ROIART R tABR TE ARTHUR (L/ABRECOUE CONDITIONS: /I Z n ci ��- ( DATE OF HEARING - PETITIONER � �� / LOCATION MOTION: TO GRANT SECOND TO DENY SECOND TO RE-HEAR SECOND LEAVE TO WITHDRAW SECOND 70 CONTINUE Z P SECOND ( � ROLL CALL PRESENT GRANT DENY WITHDRA RE-HEAR CONTINUE RICHARD BENCAL RICHARD FEBONIO FRANCIS GREALISH E D� / STEPHEN TOUCHETTE ASSOCIATE MEMBERS RONALD PLANTE ARTHUR LABRECOUE CONDITIONS: f g 8 CITY OF SALEM - MASSACHUSETTS KEVIN T.DALY Legal Department LEONARD F. FEMINO City Solicitor 93 Washington Street Assistant City Solicitor 508-745-0500 Salem, Massachusetts 01970 508-921-1990 September 30, 1992 Mr. Richard Bencal, Chairman Salem Board of Appeal City of Salem One Salem Green Salem, MA 01970 RE: Ferragamo Dear Richard: Enclosed herewith please find several notices pertaining to Depositions to take place in the above-mentioned matter scheduled for November 2, 1992. Would you kindly inform all members of same. Please call with your questions. Very truly yours, Leonard F. Femino LFF/gsw Enclosure COMMONWEALTH OF MASSACHUSETTS Essex, ss. Superior Court Department Civil Action No. 92-2097 PAUL FERRAGAMO, TRUSTEE ) OF THE FERRAGAMO FAMILY ) TRUST, ) PLAINTIFF ) VS. ) RICHARD BENGAL, ET ALS ) AS THEY ARE MEMBERS OF ) THE SALEM BOARD OF ) APPEALS, ) DEFENDANTS ) NOTICE OF DEPOSITION To: Leonard Femino, Esquire One School Street Beverly, MA 01915 Please take notice that on Monday, November, 2 , 1992 , at 10:00 a .m. , at the offices of Pearl, McNiff, Crean, Cook & Sheehan, 30 Main Street, Peabody, Massachusetts, pursuant to Mass . R. Civ. P. 30, William H. Sheehan III will take the deposition of the Keeper of Records of the Salem Board of Appeals , before a notary public or other officer authorized by law to administer oaths or take depositions . The deposition will continue from day to day until completed. Respectfully submitted, Paul Ferragamo, Trustee of the Ferragamo Family Trust, By his Attorney, William H. Sheehan III BBO# : 457060 PEARL, McNIFF, CREAN, COOK & SHEEHAN 30 Main Street Peabody, Massachusetts 01960 Telephone: ( 508) 531-1710 Dated: September 22 , 1992 cc: Advanced Court & Conference Reporting APPEAL CASE NO. . . . . . . . . . . . . . . . . . . . . . . . alitg of �$ttlem, cmttssadjusetts Poarb of �}r M TO THE BOARD OF APPEALS: The Undersigned represent that he is are the owners of a certain parcel of land located at NO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Street; Zoning District. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : and said parcel is affected by Section(s) . . . . . . . . . . . . . . . . of the Massachusetts State Building Code. Plans describing the work proposed, have been submitted to the Inspector of Buildings in accordance with Section IX A. 1 of the Zoning Ordinance. 01 ELI A m< cn p � r to � ca y The Application for Permit was denied by the Inspector of Buildings for the following reasons: Dle�fi lA �� L The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem Zoning Ordinance and/or the Building Code and order the Inspector of Buildings to approve the application fee permit to build as filed, as the enforcement of said Zoning By-Laws and Building Code would involve practical difficulty or unnecessary hardship to the Undersigned and relief may be granted without substantially dero- gating from the intent and purpose of the Zoning Ordinance and Building Code for the following reasons: lliN✓�l�ii �� , l�iT 07--e, To A116LN cor, r7l�LcTIa 1 d A C Owner. . . . . . . . . . . . . . . . . . . . . . . . . N Address.q. Nr �e;�c .//.JJ? . . I . � . .�� , Telephone. . . . .. ... . . �1 . . . . . . . . . . . . . . . . . . . L\/ 1: t C /,nVw Y. ':•1 Petitioner. . ` JAddress. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date. . . . . . . . . . . . Telephone. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . By. . . . .I. .�.. .. ./. . . . . ..Y�. . . . . . . . . . . . . . . . . . . Three copies of the application must be filed with the Secretary of the Board of Appeals with a check, for advertising in the amount of. . . . . . . . . . . . . . . . . . . . . . . . . . four weeks prior to the meeting of the Board of Appeals. Check payable to The Evening News. NO..................................... PETITION TO BOARD OF APPEALS LOCATION ................................................................ PETITIONER.......................................... ADDRESS............................................... CONDITIONS ............................_................................... ................................................................ ................................................................ ................................................................. ................................................................. ................................................................. PETITION APPROVED.................... ❑ DENIED......................... f y F,, 4-7 IIS 1 . r.- 1 � E j t1 ..VV .I c it 11 �� f' )1?� �.1�(�1�s`ll' ei �r�V C:�?�.�. II t'�L•�Ra ( � i P , N 1 .,fy Y :�_ � ;yy„ � i� ! �.�SWa t f 'y �V •("s,� ��}1t•�HV��,-y'�-�y �� `�`, ' 'r �, `,;. i • ' I I I • � _ � -. .:' FEE1 . 1 r" Y , - Y { r-'r (� '(Ft/�C � I►,.I�l;'.i�11-1G . � 1NG. �➢? o0 3 nj Oj a , Nv e b o X450 / Ate. r:/ �o X02 89 14, 669 a_ 88 Y ?� 0 -1 �/B 21, 926 cir ,a T8 ? a80 yY Seep. it S CL ARK •o S B/ T /800 3s-e •• aO� J0OO 82 83 so D ` to /sse 400 goo /9 so ST&Cer 6dS /2Q so ` O aO It i pp b tis ^ \ I 32 7 �o /6/6 6 fa ca 107 -aw \\ S 0 121 /6,000 0,4,L X20 `\ \ 006 \a — 5ol°� 2 \1 „ IT O 14 mark of �Aypv 1 '87 MAP 31 P3 :00 DECISION ON THE PETITION OF DAVID FERRAGAMO (PETITIONER) , FERRAGAMO - FAMILY TRUST (OWNERS) FOR VARIANCE AT 7 CLARK STREET CiiYS%i��;.''� fiFFiCt A hearing on this petition was held March 18, 1987 with the fol7oiaing Board Members present: Edward Luzinski, Vice Chairman; Messrs. , Bencal, Fleming, Strout and Associate Member Dore. 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 variances from frontage, lot size and area per dwelling unit to allow construction of a single family dwelling in this R-1 district. Said property is owned by the Ferragamo Family Trust. The Variances which have been requested may be granted upon a finding of the Board that: a. special conditions and circumstances exist which especially affect the land, building or structure involved and which are not generally affecting other lands, buildings or structures in the same district; b. literal enforcement of the provisions of the Zoning Ordinance would in- volve substantial hardship, financial or otherwise, to the petitioner; c. desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the district or the purpose of the Ordinance. The Board of Appeal, after careful consideration of the evidence presented at the hearing, and after viewing the plans, makes the following findings of fact: 1 . Opposition was voiced by the abutters; 2. A concern regarding blasting on the site was noted; 3. The traffic problems would be increased by the building; 4. Further development of the neighborhood would be detrimental. On the basis of the above findings of fact, and on the evidence presented at the hearing the Board of Appeal concludes as follows: 1 . Special conditions and circumstances do not exist which especially affect the subject property and not the district generally; 2. Literal enforcement of the provisions of the Ordinance would not involve substantial hardship to the petitioner; 3. The relief requested cannot be granted without substantial detriment to the public good or without nullifying or substantially derogating from the intent of the district or the purpose of the Ordinance. DECISION ON THE PETITION OF DAVID FERRAGAMO (PETITIONER) , FERRAGAMO FAMILY TRUST (OWNER) FOR VARIANCE FOR 7 CLARK ST. , SALEM page two Therefore, the Zoning Board of Appeal voted unanimously, 5-0, against granting the Variances requested. VARIANCES DENIED. Peter Strout, Member, Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK APPEAL FROM THIS DECISION. IF ANY, SHALL BE MADE PURSUANT TO SECTIJN 77 OF THE MASS. , GENERAL LAWS,CHAPTER 808. AND SHALL BE FILED WITHIN 20 DAYS AFTER THE DATE OF FILING OF THIS DECISION IN THE OFFICE OF THE CITY CLERK. GRANTED HOERE i, SHALL GENERAL NOFLTANE EFFECT UWS, CHAPTER NTIBL A COPYNOFTTHEDEC SVARIANCE ION. BEARISPETHEL CERT IIT ED FICTION OFORA T AT, IFAS BEEN FIL . SUCH THE I N APPEALTY CLK THAS BEEN FILE HAT 20 Y �TIIATVE �IT SHAS AND EN DISPISSEDHOR CEHIED IS RECORDED IN THE SOUTH ESSEX REGISTRY OF DEEDS AND INDEXED UNDER THE NAME OF THE OF RECORD OR IS RECORDED AND NOTED ON THE OWNER'S CERTIFICATE OF TITLE. BOARD OF APPEAL 2 e r ' i r r�b (Iiitn ofttlem, �ssttellus is i Bunrb of _Au}1ett1 /TYCOs 1 CfFrX," � REMANDED DECISION ON THE PETITION OF PAUL FERRAGAMO FOR A VARIANCE AT 7 CLARK STREET (R-1) A hearing on this petition was held June 3, 1992 with the following Board Members present: Richard Bencal, Chairman; Richard Febonio, Francis Grealish, Edward Luzinski and Stephen Toucette. 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 Variances to allow the construction of a single family home in this R-1 district. This petition was denied by the Board of Appeal on March 18, 1987 and again on July 5, 1989 . The latter denial was appealed and subsequently remanded back to the Board by the Court. The Variance which has been requested may be granted upon a finding of the Board that: a. Special conditions and circumstances exist which especially affect the land, building or structure involved and which are not generally affecting other lands, buildings or structures in the same district. b. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioner. c. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the district or the purpose of the Ordinance. The Board of Appeal, after careful consideration of the evidence presented at the hearing and after viewing the plans, makes the following findings of fact: 1. The petitioner failed demonstrate or to meet the burden of proof relative to legal hardship. DECISION ON THE PETITION OF PAUL FERRAGAMO JUN 17 .3 04 Fil X92 FOR A VARIANCE AT 7 CLARK STREET, SALEM CITY OF L71 __11 S page two CLERK'g urs On the basis of the above findings of fact, and on the evidence presented at the hearing, the Board of Appeal concludes as follows: 1. Special conditions do not exist which especially affect the subject property and not the district in general . 2. Literal enforcement of the provisions of the Zoning Ordinance would not involve substantial hardship to the petitioner. 3 . The relief requested cannot be granted without substantial detriment to the public good or without nullifying and substantially derogating from the intent of the district or the purpose of the Ordinance. Therefore, the Zoning Board of Appeal voted three (3 ) in favor two ( 2 ) opposed to the motion to grant, having failed to garner the required four affirmative votes to pass, the motion is defeated and the petition is denied. VARIANCE DENIED June 3, 1992 z Francis X. Grealish, Jr. , Secretary Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK APPEAL FROM THIS DECISION, IF ANY, SHALL BE MADE PURSUANT TO SECTION 17 OF THE MGL 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 MGL 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 PASSED AND NO APPEAL HAS BEEN FILED, OR THAT, IF SUCH APPEAL HAS BEEN FILED, THAT ITK HAS BEEN DISMISSED OR DENIED IS RECORDED IN THE SOUTH ESSEX REGISTRY OF DEEDS AND INDEXED UNDER THE NAME OF THE OWNER OF RECORD OR IS RECORDED AND NOTED ON THE OWNER'S CERTIFICATE OF TITLE. BOARD OF APPEAL h � CITY OF SALEM - MASSACHUSETTS KEVIN T. DALY Legal Department LEONARD F. FEMINO City Solicitor 93 Washington Street Assistant City Solicitor 508-745-0500 Salem, Massachusetts 01970 508-921-1990 April 22, 1992 Richard Bencal, Chairman Salem Board of Appeal City of Salem One Salem Green Salem, MA 01970 RE: Ferragamo vs. Salem Board of Appeals Dear Richard: Enclosed herewith please find correspondence which 2 received from William Sheehan regarding the above-mentioned matter for your records. Please call me with any questions or comments. Very truly yours, Leonar F. Femino LFF/gsw Enclosure PEARL, MCNIFF, CREAN, COOK & SHEEHAN ATTORNEYS AT LAW 30 MAIN STREET JOHN M.CREAN PEABODY,MASSACHUSETTS 01960-5552 MATTHEW J.KAVANAGH OLIVER T.COOK MICHAEL S.HOULDEN PEABODY(508)531-1210 WILLIAM H.SHEEHAN III LAWRENCE J.O'KEEFE THOMAS C.REGAN,PC BOSTON(617)289-3456 MICHAEL T.SMERCZYNSKI,PC FAX(508)531-4895 SAMUEL PEARL,OF COUNSEL JOHN A.MCNIFF,OF COUNSEL ARTHUR J.FRAWLEY,JR.,OF COUNSEL April 16, 1992 Leonard F. Femino, Esquire Alexander, Femino & Lauranzano One School Street Beverly, MA 01915 Re: Ferragamo vs . Salem Board of Appeals Essex Superior Court Department Civil Action No. 89-2492 Dear Len: This will confirm that Mr. Ferragamo agrees to pay publication and advertising costs in the event same are incurred by the Board of Appeals pertaining to the hearing on Mr. Ferragamo's application for variance following remand from the Essex Superior Court. However, I urge you and the Board to take the position that no new notice or advertise- ment is required pursuant to the holding of Board of Selectmen of Kingston vs . Board of Appeals of Kingston, 3 Mass . App: Ct. 704 ( 1975) , a copy of which I enclose for your convenience. Sincerely y rs, m heehan III WHS:cs Enclosure 3 704 3 Mass. App. Ct. 700 3 Mass. App. Ct. 700 705 Rescript Opinions. Rescript Opinions. added, that the employee had worked that day and that evening per- der G. L. c. 40A, § 17, after remand (compare Josephs v. Board of Ap- forming his usual duties, could have been found from the evidence and ; peals of Brookline, 362 Mass. 290 [19723) and its finding that the use inferences which could properly be drawn therefrom. Anderson v. involved would not be detrimental. Since the final decree upon the Albertstamm, 176 Mass. 87, 91-92 (1900). McCormick, Evidence, § 14, merits of the caseis to be affirmed, we treat the board's appeal from an p. 33 (2d ed. 1972). Hughes, Evidence, §328, p. 418 (1961). interlocutory decree as having been waived. Decree affirmed. Decree affirmed. Ernest W.Piper,Jr.,for the insurer. Cortland A. Mothers (David Delaney with him) for the Board of Paul F.X.Powers for the claimant. Selectmen of Kingston. Francis L. Kelly for Albert R. Schofield,Jr., trustee. JAE CORPORATION vs. MASS. PORT REALTY Co., INc. & others. Janu- i Mario P.Alfieri for the Board of Appeals of Kingston. ary 31, 1975. This appeal from a decree of the Superior Court appoint- ing a receiver pendente lite of certain income producing real property WILDWOOD ESTATES OF BRAINTREE, INC. & another as. ACNES M. is properly before us as the decree is "so far final in its nature as to be SMITH & others. February 3, 1975. Neither of the exceptions claimed appealable to this court. Cambridge Savings Bank v. Clerk of Courts, by the respondents appears to have been intended (nor was either Sol 243 Mass. 424, 427 [1923]" New England Theatres, Inc. v. Olympia fieient) to cast doubt on the validity of the judge's finding, which is Theatres, Inc. 287 Mass. 485, 490 (1934), cert. den. sub nom. E. M. dispositive of the respondents' claim(s) of "prescriptive rights" or of Loew's, Inc. v. New England Theatres, Inc. 294 U. S. 713 (1934). Vin- "rights of prescription." that "they [the respondents] have not used cent v. Plecker. 319 Mass. 560, 564, n. 2 (1946). Lynde v. Vose. 326 the pond uninterruptedly for over twenty years." See G. L. c. 187, § 2. Mass. 621. 622 (1951.). Wax v. Monks, 327 Mass. 1, 2-3 (1951). Albre No question of "dedication of rights to the general public" was raised v. Sinclair Constr. Co. Inc. 345 Mass. 712, 713 (1963). "No evidence is by or open under the pleadings. - reported and the only question is whether the decree. ..could have Exceptions overruled. been entered on the allegations of the bill," to. at 712. The sworn al= Anne M. Vold for the respondents. legations of the bill and of the supporting motion to appoint the re- Richard L. Seegel (Joseph C. Avilabile with him) for the petitioners. eeiver indicate a concerted and elaborate scheme by the defendants to delay and defraud the plaintiff as a creditor of the defendant Quinlan CARL A. NwRO IS. SAMUEL J. NIGRO & another) February 5. 1975. & Associates. Inc., and justified the conclusion that the present case is This is an appeal from an interlocutory decree confirming a master's one " `where otherwise there would be wasting and loss of property report and from a final decree dismissing the plaintiff's bill. The plain- which ought to be made available for payment of the debts of the coo- tiff (Carl), the owner of 45 shares of stock of the defendant corpora- potation and which cannot be conserved in any other wav so satis- tion. seeks to impose a resulting trust in his favor upon five of the re- factorily as by the appointment of a receiver. Falmouth National Bank maining 55 outstanding shares held by the individual defendant (Sam- v. Cape Cod Ship Canal Co. 166 Mass. 550, 568 [1396].' New England uel). Carl's brother. Cart's claim to a resulting trust in five of the Theatres. Inc. v. Olympia Theatres. Inc. 287 Mass. 485, 492 [1934]." shares issued to Samuel is based upon the assumption that, when their Hurley v. Boston R.R. Holding Co. 315 Mass. 591, 616 (1944). George partnership was incorporated, it was understood that the brothers were Allman, Inc. v. Vogue Intl. Inc. 366 Mass. 176, 179-180 (1974). See to hold equal shares in the corporation, Where, as here. the master has G. L.c. 109A. § 10(h). set forth all the subsidiary findings upon which he based his conclu- sions, "[i]t is the duty of the trial court and of this court to draw its Morris:lf.Goldings for Mass. Port Realty Co.. Inc. own inferences and to reach its own conclusions from the subsidiary John H.Henn for the plaintiff. findings of the master.' Certified Post Control Co. Ire. v. Kaiper, 1 Mass. App. Ct. 201.. 204 (1973). Corrigan v. O'Brien, 353 Mass. 341. BOARD OF SELECTMEN OF KINGSTON os. BOARD OF APPEALS OF KING- - 345-346 (1967). O'Brien v. Dwight. 363 Mass. 256, 281 (1973). It Is ' men appeal from a Su- readily inferable from the master's findings that it was not intended sTON' & another. January 31, 1975. The select ! he board of appeals that the shares should issue to the brothers in equal amounts and that perior Court decree affirming the decision of t (board) granting a special permit for the construction of multiple Carl, as manifested by his attitude toward the shares in the several jj ecision of the.board years following incorporation, had acquiesced in the unequal division dwellings. The court had annulled an initial d !` granting the Permit and remanded the case to the board for "further of the shares. It is significant that five years after the formation of the 3k` proceedings" (while retaining jurisdiction t corporation, the brothers organized a corporate affiliate in which the tion of the case) without the ne- ;i decision of the board same distribution of shares was made with Carl's knowledge and intent. cessity of bringing a new petition. The subsequent to grant the permit again was affirmed by the court. The selectmen as. The plaintiff's reliance upon Hanrihan v. Hanrihan, 342 Mass. 559 Bert that (1) the second decision of the board was a nullity because of (1961), and Radford v. Lovett, 1 Mass. App. CL 874 (1974), does not 4f the failure to give new notice under G. L. c. 40A, § 17, and (2) the use i support his argument for a resulting trust in this case. The denials of authorized under the permit was detrimental to the established or to- �oi ,q lure character of the neighborhood or town. The record supports the 1 court's ruling that"no new notice or advertisement was required" un- y _ i Dudley Fuel Company,Inc. a t j �e��y a� �� f� �� u-�✓ dell Q� #4 f . �Y!�fI�I 11Gt e!- � J' re��re✓`�i by �'iC(�i�IKCPf` 7 � Q/lOw � n2 cott ✓` �r�t-c7�/_�h a I. / /ems ��/��y 1j �/h8 07L- AA, e Lhe _ ,iQ�d wa_� ehu Wed .4e7/ e IUC�/ri 6lh C e G��ii�� 4/✓- ,/�.eec,—G /e� G( e�/f�� //ham/l�l/� �e. �y'�lh �'�� dl—C( l'i GtG�ih✓/' �_Y"` � 1 6111-4f 74� i 74 e-r=67 =lam y 6017 17111e1-ajL1-t),47 i L, �Ije le%-e7Z �yec�,��-eG� -�//r��_��cr�,�,��-,ut�ve vol-•2,� _ `_ A _ .;. _ _. - - -;. - - - � - i \ \ 133 ? G \> 24394 0 91>O C + o0 B y O Q o o� CPy0 bry c n ^ OSt 0 6• O o s 0 OJT 6ti C 'v o0 0 a O y1 X99 g �2�o btih °ry tK /O N o n OA- J�j� Ery c� yO 1h �r 03�//) ?cp�S t`.j7 606 m` 0 00Q' y1 �6lb o 02 / 89 / 14, 669 6• o S.E.D. 1989 / ry B.O.A. 1988 7 ? B.O.A. 1987 / / G 88 s' e Co 4�64C 21, 926 REV. BY B.O.A. 1986 �\\ '00 0 REV. BY B.O.A. 1985 9 \\\ 5000 �8 le 82 i0 REV. BY B.O.A. 1984 O3000 C F /i66B 86 s. REV. BY S.E.D. 1982 79 S44CM �5s o CLgRK 'so so -5 ?9 80 8 0 s5-B T n 35 a 5° OO 5500 /5800 83 8� % 2 5 \ -Topp ab0 e /66,?S X24 eZ 150 a /y Not 10 g Sp 2 ST/'( 50 \A4 g so EC 7-v 19 53 p \ 5 Y, 50 .90 5° B O 130 106 40 o I0-0 7. /6000 15245 '�.�qa O m \ �, 131 ` /6/65 h 122 , q 0)% cc ,1 /27530 ° h `Ory O C /6,000 9p� ,�, �\a23 _ u� 132 S.E.D. 1981 o s \v100 -- /,05 AC 0 _ S.E.D. 1980 1 \`LD '\1 006 / 1 13 AC oo — AL. AVIS 1979 s �o AVIS 1978 No cm qs 50 Z REV. BY AVIS 1976 REV. BY 1111974 REV, BY AVIS 1973 Poo yGF X505 Zo L4 oo � 1"000 I0 3__J 544,500 N LAST No USECI'.3 so LOTS 126, 136 'JOT UJE1. 4 8 L 3 7 ( n 5 i V. z Z. CUm- 7 250 �U.74 so ZZ so ra Sp nifty' jL% ft FD50 so SO RO sTRfET I. EPA 5, 7.1 40 JO"E CLARKso so 16-0-54 Al 9t 0801 Z td I zo go/ Won zo go/ -1Z y 71 X N QUM I S so ij t nw,"n IZA 6e- A48,96 cb (b 71 7? Vl Into off Ki. too qVII e .......... ......... I� I, ;1 I I ii i � ( I i I I I ' I'I '-'�l��✓7 f—� Jil ri� �1 I �- IJL �.:'.-TYi 'i _ rl G1, ��1 I r Iur, GL I I LL I I 1^ v Q I I � I J H`fF�li�{JI.� t.Hl�vCs � .l I r� l r � r , - ,IA �6lQoeeAuG Aov;cr N6. i , � � Wit'-�•^�co- I -o' '. Pte' fl�.1� SSC•-- F�x�GY,/M .o}9�0 . I ll CI