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74 ENDICOTT STREET - ZBA 7�E - -- Legal Notice CITY OF SALEM BOARD OF APPEAL 978-745-9595 X5641 Will hold a public hearing for all per- j sons interested in the petition submitted _ by MICHAEL MCNIFF,seeking vari- ances from lot size,lot width,front and rear yard setbacks to construct a single family house for the property located at {{ 74 ENDICOTT STREET R-2. Said 1 hearing will be held on WEDNESDAY, JULY 18,2007 at 6:30 p.m.;3rd floor - 120 Washington Street.Room 313. July 4&11,2007 SN—7/4,7/11/07 cL `FX`! cS OFFIc= COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT DEPARTMENT DOCKET NO. MICHAEL McNIFF, ) Plaintiff ) V. ) ROBIN STEIN,REBECCA CURRAN, BETH DEBSKI, RICHARD DIONNE and ANNIE HARRIS, ) as they are members of the City of Salem Board of Appeals, ) Defendants ) NOTICE OF APPFAT TO: City Clerk City of Salem 93 Washington Street Salem MA 01970 In accordance with M.G.L. c 40A, § 17, please be advised that the above-captioned action has been filed on August 20, 2007 in the Superior Court Department of the Trial Court, appealing a decision of the Board of Appeals of the City of Salem, in which the Board voted to deny the Plaintiff s petition for an administrative appeal. A copy of said Complaint is enclosed. Respectfully submitted, Michael McNiff, _ rc Se, AP ichae 1VIcNi f ` 39 Old Planters Road Nua'10 Beverly, MA 01915 Boz 0 i8A030,�1iN�7;0Ins Fj0 AHI 80-q I nej H.1 NI oocKETNO.(S) Trial Court of Massachusetts CIVIL ACTION Superior Court Department COVER SHEET County: Essex PLAINTIFF(S) DEFENDANT(S) _ Michael McNiff City of Salem Zoning Board of Appeals ATTORNEY,FIRM NAME,ADDRESS-AND TELEPHONE . - 'ATTORNEY (if known)' Board of Bar Overseers number: Origin code and track designation Place an x in one box only: ❑ 4.F04 District Court Appeal c.231, s. 97 &104 (After N1 1. 1701 Original Complaint trial) (X) ❑ 2. F02 Removal to Sup.Ct.C.231,s.104 ❑ 5. F05 Reactivated after rescript; relief from (Before trial) (F) judgment/Order (Mass.R.Civ.P.60)(X) ❑ 3. F03 Retransfer to Sup.Ct. C.231,s.102C (X) ❑ 6. E10 Summary Process Appeal(X) TYPE.OF ACTION AND TRACK DESIGNATION (See reverse side) CODE NO. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE? CO2 Zoning Appeal ( F ) ( )Yes (% )No The"following is a full, itemized and detailed statement of the facts on which plaintiff relies to determine money damages. For this form, disregard double or treble damage claims; indicate single damages only. TORT CLAIMS - (Attach additional sheets as necessary) A. Documented medical expenses to.date: 1. Total hospital expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . $ . . . . . . . . . . . . . . 2. Total Doctor expenses . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . $. . .. . . . . . : . . . 3. Total chiropractic expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ . . . . . . . . . . . . . 4. Total physical therapy expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ . . . . . . . . . . . . . 5. Total other expenses (describe) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ . . . . . . . . . . . . Subtotal$. . . . . . . . . . . . . B. Documented lost wages and compensation to date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . : . $ . . . . . . . . . . . . C. Documented property damages to date ... . . . . . $ ....... . . . . .,..__ _ D. Reasonably anticipated future medical and hospital.expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ . . . . . . . . . . . . . E. Reasonably anticipated lost wages . . . . .. M . . . . . . . . . . . . . . . . .. . . .. . . ... . . . . . . . . . . . . . . . . . 1 $ _ . . . . . . . . . . F. Other documented items of damages (describe) $ . . . . . . . : . . . . . G. Brief description of plaintiff's injury, including nature and extent of injury(describe) $. . . ... . . . . . . . . TOTAL $.... . . . . . . . . . . CONT T C (Attach adld� n s cessary) Provide a detailed description of claim(s): fN�H SUPERIOR COURT FOR THE COUNTY OF ESSEX AUG 2 0 2007 TOTAL $. . . . . . . . . . . . PLEASE IDENTIFY, BY CASE NUMBER, NAME AND COUNT Y,l-W RELATED ACTION PENDING IN THE SUPERIOR COURT DEPARTMENT "I hereby certify that I have complied with the requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18)requiring that t provide my clients with information about court-connected dispute resolution services and discuss with them the advantages and disadvantages of the various methods:' Signature of Attorney of Record DATE: 8/20/07 r COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT DEPARTMENT DOCKET NO. MICHAEL McNIFF, ) PlaintiffV. FOLED ) THE SUPERIOR COURT I° THE COUNTY OF ESSEX ROBIN STEIN, REBECCA CURRAN, BETH DEBSKI, RICHARD DIONNE and ANNIE HARRIS, j AUG 2 0 2007 as they are members of the City of Salem Board of Appeals, Defendantsu COMPLAINT AND APPEAL PI JR 91JANTTl M 1.- CHAPTER 40A, SFC TTON 17 TNTR OOT iCTTON 1. This is an appeal from the August 1, 2007 decision of the City of Salem Board of Appeals granting Plaintiff, Michael McNiff s, application for a variance appeal pursuant to Massachusetts General Laws, Chapter 40A § 10 and 17, as amended. TT 1RTSDTCTT0N 2. Jurisdiction over the subject matter of this action is conferred upon this Court by M.G.L. Chapter 40A, Section 17. 3. The Plaintiff, Michael McNiff, has under contract the property at 74 Endicott Street in Salem, Massachusetts. 1 r 4. The Defendants Robin Stein, of 141 Fort Avenue, Salem, Massachusetts Rebecca Curran, of 14 Clifton Avenue, Salem, Massachusetts Beth Debski, of 43 Calumet Street, Salem, Massachusetts Richard Dionne, of 23 Gardner Street, Salem, Massachusetts Annie Harris, of 28 Chestnut Street, Salem, Massachusetts constitute the Salem Board of Appeals of the City of Salem (hereafter"the Board") sitting and acting as the permit granting authority pursuant to the provisions of M.G.L. Chapter 40A. CTF.NRR A T. A T LEG A TI ONS 5. On or about July 2007, the Plaintiff filed a request for issuance of a Variance to construct a single-family home at 74 Endicott Street. 6. On July 18, 2007, a public hearing was held by the Board who rendered a decision granting Plaintiff's variance to construct a single-family house with a condition that a detached garage not be constructed on the site.. 7. On August 1, 2007, the Board filed its decision with the Salem City Clerk; a certified copy of that decision is attached hereto as Exhibit"A." 8. The lot had a house that was destroyed by a fire. The garage is an essential part of the rebuild. 9. The Board's decisions exceeds its authority as a matter of law and fact and is arbitrary, capricious and an abuse of discretion. WHEREFORE, the Plaintiff demands that this Court: 1. Rule that the Board's decision is arbitrary, capricious and an abuse of discretion. 2 2. Enter an order annulling said decision of the Board. 3. Grant such other relief as the Court may deem proper and just. Respectfully submitted, Michael McNiff, Pro Se, Michael McNiff 39 Old Planters Road Beverly, MA 01915 3 OONDIrggo C9TY OF SALEM9 MASSACHUSETTS BOARD OF APPEAL 2 120 WASHINGTON STREET, 3RD FLOOR .a C� SALEM, MASSACHUSETTS O 1970 TELEPHONE: 978-745-9595 FAx: 978-740-9846 KIMBERLEY DRISCOLL - MAYOR ri August 1, 2007 Decision Petition of Michael McNiff Requesting a Variance for the Property at 74 Endicott Street City of Salem Zoning Board of Appeals A public hearing on the above petition was opened on July 18, 2007 pursuant to Massachusetts General Laws Ch. 40A, §§ 10 and 11 and the City of Salem Zoning Ordinance. The following members of the Salem Zoning Board of Appeals ("Zoning Board of Appeals") were present: Elizabeth Debski (Acting Chairperson), Rebecca Curran, Richard Dionne and Annie Harris. The petitioner, Michael McNiff("petitioner"), sought a variance from lot size, lot width, front and rear yard setback to the real property located at 74 Endicott Street, Salem, located within a two-family residential (R-2) zoning district. The Zoning Board of Appeals, after careful consideration of the evidence presented at the public hearing, and after thorough review of the petition submitted, submits the following findings of fact: 1. _ _Petitioner's property is located within a two-family residence district. _ 2. Petitioner sought a variance from: a) minimum lot area of 15,000 square feet required under the existing zoning ordinance to 3,605 square feet; b) minimum lot width of 100 feet under the existing zoning ordinance to 67.93 feet; c) minimum depth of front yard of 15 feet required under the existing zoning ordinance to 3 feet; and d) minimum depth of rear yard of 30 feet required under the existing . zoning ordinance to 4.4 feet. 3. The variances is being sought to enable the construction of single family home. Further, the front of the single family— contain a 4' x 6' porch and the rear of the home will conta- deck. 4. Dorothy Morneau, 72 Endicott Street, spoke in opposition parking at 74 Endicott Street, concerned that the proposed close to her property line. 5. Maggie Brobeck and Alex Foustoukos, 76 Endicott Street, over the proposed structure for 74 Endicott Street. 6. Robert Griffin, a professional engineer representing the p(_— to remove the proposed detached garage from the plans fo- 74 Endicott Street and to widen the curb cut. 7. Councillor Jean M. Pelletier(Ward Three) raised several c_ regarding the parking for 74 Endicott Street and in suppor-7 Ms. Morneau asked that the vehicles for 74 Endicott Stree=- behind the other for the proposed driveway. On the basis of the above findings of fact, including all evidence present hearing, including,but not limited to the Petition, the Zoning Board of A:j as follows: The petitioner's request fora variance does not constitute detriment to the public good as residential uses are permit— district. Also, the petitioner's request for a variance does - substantially derogate from the intent or purpose of the zor as residential dwellings are a permitted use in the R-2 dist 2. A literal enforcement of the zoning ordinance would creat hardship to.the petitioner due to the size of the lot. 3. In permitting such change, the Zoning Board of Appeals r appropriate conditions and safeguards as noted below. In consideration of the above, four (4) members (Curran, Debski, Dionne the Salem "Zoning Board of Appeals voted to grant the petitioner's reque . and zero (0) members voted to deny the petitioner's request for a variant following terms, conditions, and safeguards: 1. Petitioner shall comply with all City and State statutes, oi-- and regulations. 2. All construction shall be done as per the plans and dimem r 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. A Certificate of Occupancy shall be obtained. 6. Petitioner.shall obtain proper street numbering from the City of Salem_ Assessor's Office and shall display said number as to be visible from the street. 7. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to the Planning Board. 8. The petitioner shall amend his petition for 74 Endicott Street to reflect the removal of the proposed 12' x 22' detached garage. 9. The four foot area between 74 Endicott Street and 72 Endicott shall be landscaped by the petitioner with evergreens to provide a proper buffer. 10. The proposed driveway shall be constructed of a pervious surface. -A - J - Elizabeth Debski n Salem Zoning Board of Appeals A COPY OF THIS DECISION HAS BEEN FILED WITH 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 of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk that 20 days have elapsed and no appeal has been filed,or that,if such appeal has been filed,that it has been dismissed or denied and is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of Title. A 1 �4,RUErCpPr Owly CLERK SALEM, MASS. CITY OR SALEM. MASSACHUSICTTS OOARO OF APPEAL S, �c( . M` 120 WASNINOTON STR[IiT, 240 BOORr`n IF c SALEM, MASSACNYS&TrS OIS7O TELE�MONEI S7r74i�SSS! FARC 576.74O.20" 2001 Jit -13 1A TO THE BOARD OR APPEAL: The Undersigned represent that hdshe istam the owners of a certainI of land and located at: 4 F.ndi rntY Street ;Z011ing District: R-2 and said parcel is affected by Secdon(s) 6-1 a of the Salem_ Zoning Ordinance. Plans describing the work proposed have been submitted to the Inspector of Buildings in accordance with Section D(A.1 of the Zoning Ordinance. The Application for Permit was denied by the Inspector of Buildings for the following resson(s): s.. Direct Appeal The Undersigned hereby petitions the Board of Appeal to vary the terms of the Salem Zoning Ordinance and allow the project to be constructed as per the plans submitted,as the enforcement of said Zoning By. Laws would involve practical difficulty or unnecessary hardship to the Undersigned and relief may be granted without substantially derogating from the intent and purpose of the Zoning Ordinance for the following reason(s): See Attached Sheet. (PLEASE PRINT) Owner_Bernard J. Mulliean Petitioner: Michael McNiff c/o Griffin Engineering Group, LLC Address:II Franklin Street Address: P.O.Box 7061 Beverly, MA 01915 Salem, MA 01970 Telephone: Telephone: 78-927,-51 By: (Signature) P Date: 2 This original application must be filed with the City Clerk. A certified copy of this petition will be returned to petitioner at the time of filing with the City Clerk,to then be filed with the-Secretary of the Board of Appeal, four(4) weeks prior to the meeting of the Board of Appeal. A TRUE ATTEST CITY CLERK n/aa �9 Commonwealth of Massachusetts Essex County Superior Court Superior Court House 34 Federal Street Salem, MA 01970 (978) 744-5500 CIVIL DOCKET# ESCV2007-01529 Michael McNiff vs. Robin Stein, Rebecca Cuppan, Beth Debski, Richard Dionne, Annie Harris CERTIFICATE OF LAST ENTRY/JUDGMENT In the above entitled action brought by Complaint filed on 08/20/2007 the following entries have been made on the docket as of May 19, 2009 (11:27am)): On 10/28/2008 Notice of voluntary dismissal (41 a.l:i) (seal) Dated at Salem, Massachusetts this 19th day of May, 2009. Thomas H. Driscoll Jr., ffCllle�erk of the Courts By:........ -�,U ............. / Clerk RCNI ® MAY �p 2, 0 p200f09 cvdcerjud_1.wpd 819827 nocvolds hinchion OEN.r.Gi=PLAWP,iNNG& CO's-0f'�fUNITY DEVELOPMENT co A.qO CITY OF SALIEM, MASSACHUSETTS - --.--BO.A.R.D-OF-APPEAL-- 120 F-AP- PEAL-__120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 FAX: 978-740-9846 KIMBERLEY ORISCOLL MAYOR C> August 1, 2007 Decision Petition of Michael McNiff Requesting a Variance for the Property at 74 Endicott Street City of Salem Zoning Board of Appeals A public hearing on the above petition was opened on July 18, 2007 pursuant to Massachusetts General Laws Ch. 40A, §§ 10 and 11 and the City of Salem Zoning Ordinance. The following members of the Salem Zoning Board of Appeals ("Zoning Board of Appeals") were present: Elizabeth Debski (Acting Chairperson), Rebecca Curran, Richard Dionne and Annie Harris. The petitioner, Michael McNiff("petitioner"), sought a variance from lot size, lot width, front and rear yard setback to the real property located at 74 Endicott Street, Salem, located within a two-family residential (R-2) zoning district. The Zoning Board of Appeals, after careful consideration of the evidence presented at the public hearing, and after thorough review of the petition submitted, submits the following findings of fact: 1. Petitioner's property is located within a two-family residence district. 2. Petitioner sought a variance from: a) minimum lot area of 15,000 square feet required under the existing zoning ordinance to 3,605 square feet; b) minimum lot width of 100 feet under the existing zoning ordinance to 67.93 feet; c) minimum depth of front yard of 15 feet required under the existing zoning ordinance to 3 feet; and d) minimum depth of rear yard of 30 feet required under the existing zoning ordinance to 4.4 feet. r 3. The variances is being sought to enable the construction of a 30' X 30' single family home. Further, the front of the single family home will contain a 4' x 6' porch and the rear of the home will contain a 8' x 12' deck. 4. Dorothy Momeau, 72 Endicott Street, spoke in opposition to the proposed parking at 74 Endicott Street, concerned that the proposed garage was to close to her property line. 5. Maggie Brobeck and Alex Foustoukos, 76 Endicott Street, raised concerns over the proposed structure for 74 Endicott Street. 6. Robert Griffin, a professional engineer representing the petitioner, offered to remove the proposed detached garage from the plans for 74 Endicott Street and to widen the curb cut. 7. Councillor Jean M. Pelletier (Ward Three)raised several questions regarding the parking for 74 Endicott Street and in support of Ms. Momeau asked that the vehicles for 74 Endicott Street be parked one behind the other for the proposed driveway. On the basis of the above findings of fact, including all evidence presented at the public hearing, including, but not limited to the Petition, the Zoning Board of Appeals concludes as follows: 1. The petitioner's request for a variance does not constitute substantial detriment to the public good as residential uses are permitted in the R-2 district. Also, the petitioner's request for a variance does not nullify or substantially derogate from the intent or purpose of the zoning ordinance as residential dwellings are a permitted use in the R-2 district. 2. A literal enforcement of the zoning ordinance would create a substantial hardship to the petitioner due to the size of the lot. 3. In permitting such change, the Zoning Board of Appeals requires certain appropriate conditions and safeguards as noted below. In consideration of the above, four(4) members (Curran, Debski, Dionne and Harris) of the Salem Zoning Board of Appeals voted to grant the petitioner's request for a variance, and zero (0)members voted to deny the petitioner's request for a variance, subject to the following terms, conditions, and safeguards: 1. Petitioner shall comply with all City and State statutes, ordinances, codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted f 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. A Certificate of Occupancy shall be obtained. 6. Petitioner shall obtain proper street numbering from the City of Salem Assessor's Office and shall display said number as to be visible from the street. 7. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to the Planning Board. 8. The petitioner shall amend his petition for 74 Endicott Street to reflect the removal of the proposed 12' x 22' detached garage. 9. The four foot area between 74 Endicott Street and 72 Endicott shall be landscaped by the petitioner with evergreens to provide a proper buffer. 10. The proposed driveway shall be constructed of a pervious surface. 1019,414i bs / v� Uh Elizabeth]) ki Salem Zoning Board of Appeals A COPY OF THIS DECISION HAS BEEN FILED WITH 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 of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11,the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied and 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.