2 LAWRENCE STREET - BUILDING INSPECTION 2i,?,`AWPFATC.' STREET
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Titg of 'Salrm, gassar4us2fts
Public Praprig Prpartment
" GL�R1TTl�ITn� P;IArtT TCY[t
William H. Munroe j
One Salem Green
745-0213
July 12, 1985
Mr. Robert Maguire
81 Fort Avenue
Salem, MA 01970
RE: 2 Lawrence St./165 Ocean Ave.
Dear Mr. Maguire:
Please be advised that your application for a Building Permit
to erect a two (2) family dwelling at 2 Lawrence St./165 Ocean Ave.
must be denied due to the fact that the plot plan submitted for the
proposed building does not satisfy the setback requirements of Section
VI, Table I, entitled residential density regulations of the City of
Salem Zoning Ordinance.
Please be advised of your right to request relief from the
Zoning Ordinance through the City of Salem Zoning Board of Appeal
Sincerely,
William H. Munroe
Inspector of Buildings
Zoning Enforcement Officer
WHM:bms
CC: City Clerk
City Solicitor
11 nn
COrU,1ONJLALTTi OF MASSACHUSETTS
Department Of The Trial Court
Essex-, ss . qz
1 j C Superior Court I
-402
Robert M. Maguire, Trust
VS.
ydkr oco
James Ha--ker- e ma2,.,
SUMMARY JUDGMENT
(_MASS. R . CIV , P. 56 )
This action came to be heard before the Court, Flannery, J.
presiding, upon the motion of the plaintiff Robert M. Maguire,
Trustee for summary judgment pursuant to Mass . R. Civ, P. 56,
IIthe parties having been heard, the Court finds that there is no
genuine issue as to material fact, and that the plaintiff Robert
14. Maguire, Trustee is entitled to a judgment as a matter of law
It is Ordered that :
the plaintiff is entitled to a variance from the pertinent I
setback requirements of the Salem Zoning Ordinance, Of course
nothing herein shall be construed to limit the Boardts S. 10
authority reasonably to "impose conditions, safeguards and limit-!
ations" on the use of the property.
The Clerk-Magistrate of the Court is directed to mail an
attested copy of this judgment within thirty days from the date
hereof, to the City Clerk, Building Inspector, and Board of
Appeals, respectively of the City of Salem-. .1
Dated at Peabody, Massachusetts, this 27th day of August, 1986,
TUE COPY, A-IjIF
DEPUty A—ts'l I Assistant t I"Cl�rk
i
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss
SUPERIOR COURT
CIVIL ACTION
No. 86-402
ROBERT M• MAGUIRE, TR )
USTEE, )
Plaintiff )
vs . J
MEMORANDUM AND ORDER
J.AhFS HACKER, ET AL, )
Defendants j
Proceeding under M.
Y judgment c 1`' c\ 40A, §17, the plaintiff seeks
Summar gment that
contrary to the decision of
Of Appeals , the Salem Board
he is entitled to
a variance from the setback require-
ments of the Salem Zoning Ordinance. The plaintiff 's application
was denied by the Board in January of 1986 and again in July of
1986 , by a two to two vote, after a hearing following a remand
by this court.
The facts are that the
Plaintiff owns a buildable lot that
IS a rectangle , and in order to actuall
it he Y make a permitted use of
needs a substantial hardship-,
c• 40'A. It is variance pursuant '.to '§l0. Of
undisputed that the. lot can accommodate a propor-
tionate rectangular two-family house, but unless it is to be paper
thin or: a vertical tube, there will have to be setback relief
along the front and back of the
longer sides . The question pre,-.
sented, therefore, to
Paraphrase the statute, is whether, o
to cirestances wing
relating to the shape of the land and especially
substantially derogating from the intent or purpose of such ordi-
nance" - is partly a question of fact, but all of the components
or elements of the ultimate conclusion - the material subsidiary
facts - are of record and undisputed . The proposed use of the
property is entirely consistent with the heterogeneous residential
neighborhood. There will be no detriment to the public good and
no nullification or derogation of the intent or purpose of the
by-law.
I For the foregoing reasons, the plaintiff is entitlted to a
variance from the pertinent setback requirements of the Salem.
Zoning Ordinance . Of course-„ nothing herein shall be construed
to limit the Board' s 510 authority reasonably to "impose condi-
l/
tions , safeguards and limitations” on the use of the property.
So ordered.
Dated: Clu,gua�
arold Flannery
stice of the Superior Court
1
The plaintiff- also moves , pursuant to Mass. R. Civ. P. 53
(sic) and Superior Court Rule 18, for an award of costs resulting
from the matter not being taken up at the first Board of Appeals
meeting following the remand. The motion is denied.
- 3 -
L:
A770RiJ=Y AT LAW
0:1= CHURCH STREET
SALEM, MASSACIWSEFFS 011)70 C',
0 i10
0
CCDE 6�7
84C--1167
CITY 01 Si LE` MA- -
September 3 , 1986
Michael E. OpBrien, Esq.
81 Washington Street
Salem, MA 01970
Re : Maguire v. Hacker, et al .
C.A. No. 86-402
Dear Mr. O' Brien :
Please be advised that pursuant to the Memorandum and Order from
Judge Flannery, after discussing the matter with the Clerk, Donald
E. Nutting, and reviewing the Court docket , the variance has been
granted as a Judgment of the Court. The variance was granted
for the plan that was submitted and it is the Court ' s position that
if the owners attempt to use the property for anything other than
the appropriate uses as designated under the zoning statute for a
parcel of land in an R2 district, the Board has the right to
reasonably "impose conditions , safeguards and limitations" on any
use not included in the definition of an R2 district.
I have spoken with the Building Inspector, Mr. Monroe , yesterday
and he has taken the position that my client is not entitled to a
building permit until this matter goes back before the Board of Appeal .
I believe that his interpretation of the Decision is incorrect,
especially in light of my conversation with Mr. Nutting and a literal
reading of the Memorandum and Order of Judge Flannery. One must
read the entire last paragraph of the Memorandum and Order which
states that the Plaintiff is entitled to a variance from the setback
requirement and that that is ordered by the Court.
Accordingly, I would ask that you write a letter to Mr . Monroe
instructing him to grant the building permit, unless you disagree
with the position that I have taken herein and accordingly, I would
request that if you do, you first speak with Mr. Nutting and then
contact me so that we might discuss this matter at your earliest
possible convenience.
Ver
yours ,
"Chris Drucas
CD/dkm
cc : Mr. Monroe , Building Inspector ✓
Mr. Robert M. Maguire