289-293 ESSEX STREET - ZBA f _
289-293 Essex St. ^�
Elaine Finbury
J
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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. THE TRIAL COURT
SUPERIOR COURT DEPT. '
CIVIL ACTION
NO. 88-594
ESSEX HOUSE ASSOCIATES, INC. , )
PLAINTIFF )
VS ) NOTICE OF WITHDRAWAL
OF APPEARANCE
JAMES HACKER, ET ALS )
CITY OF SALEM, BOARD OF )
APPEAL, )
DEFENDANTS
To the Clerk of the above named court:
Kindly enter my Withdrawal as attorney for the
defendants in the above matter. This notice is to
be accompanied by the Appearance of Successor Counsel
as provided for by Mass . Rules of Civil Procedure.
11 (c) .
Mic ael E. O'Brien, Esq.
81 Washington Street
Salem, MA 01970
Telephone ( 508) 744-3363
BBQ#376035
Dated: January 2 , 1990
Certificate of Service
I, Michael E. O' Brien, hereby ' certify I . served the
attached Notice of Withdrawal upon all parties to this action
by causing a copy of the same along with a copy of the Notice
of Appearance of Successor Counsel to be forwarded first
class mail, postage paid, to the following:
Leonard .F. Femino, Esq. Kenneth E. Lindauer, Esq. /
1 School Street 14 Lynde Street
Beverly, MA 01915 Salem MA 01970
City of Salem
Board of Appeal
One Salem Green
Salem, MA 01970
I further certify to the best of my knowledge there
are no motions now pending before this court and no trial
date has been set.
.ziSigned under the pains and penalties of perjury this
day of January, 1990 .
i ael E. Brien
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. THE TRIAL COURT
SUPERIOR COURT DEPT.
CIVIL ACTION
NO. 88-594
ESSEX HOUSE ASSOCIATES, INC. , . )
PLAINTIFF )
VS ) NOTICE OF APPEARANCE
JAMES HACKER, ET ALS )
CITY OF SALEM, BOARD OF )
APPEAL, )
DEFENDANTS )
To the Clerk of the above named court:
Kindly enter my Appearance as attorney for the
defendants in the above matter.
L onard F. Femino, Esq.
One School Street
Beverly, MA 01915
Telephone ( 508 ) 921-1990
Assistant City Solicitor
Dated: January 2 , 1990
AM 44
(fTtu of 2IlPm, C 2ISSttL�11SPftS
' 9
19 curb of '4vral 'CLVVK &A:911. tams&
���MIN6
DECISION ON THE REMANDED PETITION OF ESSEX HOUSE ASSOCIATED INC.
FOR A VARIANCE AT�289-293 ESSEX STREET (B-5)
A hearing on this remanded petition was held on June 15, 1988 with the
following Board Members present; James M. Fleming, Chairman, Messrs.
Richard A. Bencal, Vice Chairman,John R. Nutting, Secretary, Edward Luzinski,
and Peter Strout. Notice of the original hearing, held on January 13, 1988,
was sent to abutters and others, and notices of the original hearing were
properly published in the Salem Evening News in accordance with the provisions
of Massachusetts General Laws, Chapter 40A.
The petitioners, represented by attorney Kenneth Lindaur, are the owners of the
subject property, and are requesting a Variance from parking and density to
allow for the increase of four (4) residential units for the new construction
at 289-293 Essex Street. The locus is situated in a B-5 zone.
At the original hearing on Jamuary 13, 1988, the petition was denied, and a
Decision to that effect was filed with the City Clerk. The petitioners
properly appealed this Decision to the Superior Court, sitting in Essex
County. That Court remanded the Decision back to the Board of Appeals for
further consideration.
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 and 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 evidence presented, an
after viewing the plans makes the following findings of fact:
1. The change from the approved cornercial space to the proposed
residential space is appropriate for the locus;
2. The requested Variance was supported by the city planner;
3. There was cormunity support for the petition.
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 exist which especially affect-this property
DECISION ON THE REMANDED PETITION OF ESSEX HOUSE ASSOCIATED INC.
FOR A VARIANCE AT 289-293 ESSEX STREET, SALEM
PAGE 740
and not the district generally;
2. Literal enforcement of the Ordinance would involve substantial
hardship to the petitioner;
3. The relief requested can 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.
Therefore, the Zoning Board of Appeal voted, 4-1 (Mr. Nutting opposed) to
grant grant the relief requested in the remanded petition, subject to
the following conditions:
1. that the mode of vehicular access be approved by the City Planner.
2. that thirty-one (31) parking spaces be maintained on site.
3. that the number of affordable living units remain in conformity with
the terms of the applicable Community Development Action Grant.
4. that a Certificate of Occupancy be obtained prior to occupancy.
5. that automatic smoke detectors be installed throughout the newly
constructed building.
6. that proper numbering be obtained frau the City Assessor's Office.
7. that all the applicable requirements of the Salem Fire Department,
relative to fire safety, be adhered to.
8. that all construction be done as per the plans submitted to the
Board of Appeals.
9. that the petitioners cooperate with the City on the improvement of
off-street parking facilities in the area, including the potential
tiering of the Sewall Street Lot.
10. that the petitioners dismiss its lawsuit filed as a result of the
Boards original Decision, in a form approved by the City Solicitor.
VARLkNCE GRANTED )
aures M. laming, Esq. "
Chairman, Board of App als
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND CITY CLERK
T.. - SFL=LL SE �F P 'ES. .1T TO S-CT'Oh 17 iF TP --�.
FPPEhC rP� :` �` - c
OF 7 1 ^ lHE (l.Ccf..
Fi�.RUOi ArrE:.:
of Salem, �zs$ttcljuse##s
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DECISION ON THE PETITION OF ELAINE FINBURY FOR
VARIANCES FOR 289-293 ESSEX ST.
APR 2`o rB
A hearing on this petition was held Apri�L ,J19 6 8wi t t4i� following Board
Members present: James Hacker, Chairman; ssrs. , Bencal, Charnas, Luzinski and
Strout. Notice of the hearing was sent Wya utters and others and notices of the
hearin_ were properly published in the Salem Even lnle-AAsS in accordance with
Massachusetts General Laws Chapter 40A.
Petitioner requests Variances from density and parking requirements in order to
convert this property into forty one (41 ) dwelling units. The prcperty is owned -
bv Salem Theatre Corp. and is located .in a B-5 district.
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 and structures in the same district;
b. literal enforcement of the provisions of the Zoning Ordinance would in-
volve substantial hardship, financial or otherwise, to petitioner; and
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 hearing the evidence presented at the hearing and after
viewing the plans, makes the following findings of fact:
1 . The neighbors who appeared at the hearing were, with little
exception, in favor of the proposal;
2. Petitioner has made a valiant, good faith effort to operate the
premises as a theater, but has been unsuccessful;
3. The property, a large theater, is unique to the district;
4. The only financially viable use of the subject premises, particularly
given the overall problems of the existant small business in the
area, is as a multi-residence building;
5. Such a use would promote the best interests of the City, which
includes having a liveable downtown area with increased residential
density.
On the basis of the above findings of fact, and on the evidence .presented at the
hearing, the Board of Appeal concludes as follows:
DECISION ON THE PETITION OF ELAINE FINBURY FOR
VARIANCES FOR 289-293 ESSEX ST. , SALEM
page two
�i
Special conditions exist which especially affect this property but do
not generally affect other lands, buildings and structures in the
same district;
2. Literal enforcement of .the Zoning Ordinance would involve substantial
hardship to petitioner; and
3. The relief requested 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.
Therefore, the Zoning Board of Appeal voted, unanimously, 5-0, to grant the relief
requested, provided 'that: _
i . The City grants the petitioner a right of way through the municipal
parking lot as shown on the plan;
2. The mode of access through said right of way be approved by the
City Planning;
3. A minimum, of thirty (30) parking spaces, the size of which are to be
defined by the size requirements of the Ordinance, be maintained on site;
4. The percentage of lower income dwelling units proposed in the petition
be always maintained for such low income use;
5. A Certificate of Occupancy be obtained for each unit;
6. Plans for the proposed construction are presented to the Fire
Prevention Bureau, showing the type and location of automatic
smoke detectors to be installed, prior to the issuance of a
building permit;
7. The petitioner obtain proper numbering from the City Assessor, and
that compliance with the Salem City Ordinance relative to the numbering
of buildings be adhered to;
8. . All Laws, Ordinances, and Regulations of both the Commonwealth and the
City of Salem, pertaining to fire safety, are adhered to.
VARIANCES GRANTED
Scott E. Charnas, Secretary
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK
APPE;L FRO:;: THIS DECISIT;. ANY, SHALL BE MADE PURSUANT TO SECTION 17 OF THE MASS.
GENERAL LAv,S, CHAPTER SC3, A'!D SHALL BE FILED WITHIN 20 DAYS AFTER THE DATE OF FILING
OF TH:S DECISION it, THE G=F!LE OF THE CITY CLERK. .
PUF:S'.:;T iO ',':.SS, CENER'.L L-' '.S. CHAPTER 808, SECTION 11. THE VARIANCE CR SPECIAL PERtTFT
lw:—,ED HLi::!I;. SHALL NO; :'.':E EFFECT UNTIL A COPY OF THE DECISION, BEE,RING THE CERT
FICTION OF TH7 CITY CJF.. -h-.i 20 DAYS HAVE ELAPSED AND NO APPEAL HAS BEEN FILED.
iR IHAT, IF SdCH F!i 0PE.4: HAS BEEN FILE, THAT IT HAS BEEN GIS.'t.ISSED OR DENIED IS
R__, EO H; T'rI` SGU;H ESS_, C`_61STRY OF DEEDS AND INDEXED UNDER THE NATE OF THE OWNER
OF REBRD CR IS RECORDED ;ND NOTED ON THE OWNER'S CERTIFICATE OF TITLE.
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Ctu of "ittlrm,
Pourb of �kppzal FF1
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�ikTgY�l SALSM.hU.
DECISION ON THE PETITION OF ESSEX HOUSE ASSOCIATES, INC. FOR A
VARIANCE AT 289-293 ESSEX ST. (B-5)
A hearing on this petition was held January 13, 1988 with the following Board
Members present: James Hacker, Chairman; Messrs. , Fleming, Bencal, Luzinski and
Strout. 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.
The petitioners, represented by Attorney Kenneth Lindauer, are the owners of the
subject property, and are requesting a Variance from parking and density to allow
for the increase of four (4) residential units for the new construction at
289-293 Essex Street. The locus is situated in a B-5 zone.
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 and 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 evidence presented, and after
viewing the plans, makes the following findings of fact:
1 . The plans presented at the present hearing differ substantially from
the plans approved for the original Variance at the locus;
2. The change from the approved commercial space to the proposed residential
space is not appropriate for the locus;
3. The requested Variance was supported by the City Planner;
4. There was community support for the petition.
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 this property
and not the district generally;
2. Literal enforcement 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 ESSEX HOUSE ASSOCIATES, INC. FOR
A VARAINCE AT 289-293 ESSEX STREET, SALEM
page two
Therefore, the Zoning Board of Appeal voted 3-2 against the granting of the
requested Variance. Messrs. , Fleming, Luzinski and Strout voted in favor of the
Varaince, Messrs. , Bencal and Hacker voted against the granting of the Variance.
Since the petition failed to gain four (4) affirmative votes, the Variance is denied.
DENIED
GAJ
1�, lliJ9� J
ames M., Fleming, Esq. , V' Chairman
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK
?LA_ iRGl THIC C'A.:I$I✓.'!, li A�I1'. ^HALL BE MADE PURSUANT TO $EC?ION 17 OF TH; f'1-°
L'F:Ei AL LAWS. Cry "n df;$. AND SHALL LE .
DcCISiON L THE CF ''It' 20 DAYS ArTER THE DATE cr
CE OF THE CITCLERX.
11 THE cA
F LAT L ,F 'H_. P L N:�' ^.'E EFF i7 L^T I. A COPi . - THE
GR in i. IF $JC'I s APPEAL u s SM, FPS Hl li r y H amu.
OF
REC,: 'J IN THE S J-'H ESS OR
RE.I$7n^Y l'F c ' 4ha "EirC
RECORD OR IS RECORDED AND NOTED ON THE OWNER'S CERTIFICATE Or TITLEr„
BOARD OF APPEAL
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The petitioners, represented by Attorney Kenneth Lindauer, are the owners of the
subject property, and are requesting a Variance from parking and density to alloii
-- :for the increase of four (4) residential units for the new construction at
289-293 Essex Street. The locus is situated in a B-5 zone.
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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 and 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 evidence presented, and after
viewing the plans, makes the following findings of fact:
1—
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�. The change from the approved commercial space to the proposed residential
space is ow appropriate for the locus;
�. The requested Variance was supported by the City Planner;
} There was community support for the petition. .
On the basis of the above findings of fact, and on the evidence presented at the;-Ie
hearing, the Board of Appeal concludes as follows:
1 . Special conditions Agftwt exist which especially affect this property
and not the district generally;
2. Literal enforcement of the Ordinance would 4 ft involve substantial
hardship to the petitioner;
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3. The relief requestedbe 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.
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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT DEPARTMENT
iN OF THE TRIAL COURT
CIVIL ACTION NO. 88-594
rt I ESSEX HOUSE ASSOCIATES, INC. ,
\ Plaintiff
\` VS MOTION TO .RECONSIDER
JAMES B. HACKER, ET AL, .
D:efenda,its
Now comes the Plaintiff, ESSEX HOUSE ASSOCIATES , INC. , in
the above-entitled matter and moves that this court refer the
Salem Appeals Board decision, the subject matter of this suit ,
back to the Appeals Board for reconsideration.
As grounds for this Motion, the Plaintiff asserts that it'
appears that this dispute can .be resolved without further court
6�V intervention.
i
l
Respectfully Submitted ,
ESSEX HOUSE ASSOCIATES , INC. ,
w� C By its Attorney,
gL
Kenneth E. Lindauer
FINBURY, SULLIVAN & LINDAUER
14 Lynde Street ,
Salem, MA 01970
(617) 744-5861
FINBURY,SULLNAN
B,LINOAUER
GINTY BOULEVARD
.IAVERNRL MASS.01870
16,71
u LYNDE STREET
SJLE.M,MASS.019M
6171'..5861
:61713n. -3376
Z)Q ovoi c� 6�/ecT
0 ,��; e c� 07Vy
�1( e k--55GX ro J26 i
The Salem Inn
_�Uw')�n�ein��- /,;?-/ 9 &V
7 Summer Street
Salem,Massachusetts 01970
(617)-741-06(80
71*0
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Joseph F. Sullivan �$aLem, fflu. 01970
Chief
City of Salem Re: 289-293 Essex Street
Board of Appeal Essex House Associates, Inc.
One Salem Green Hearing date: January 13, 1988
The Salem Fire Department has no objection to the granting of a Variance
to allow four additional residential units at #289-293 Essex Street
subject to the following conditions:
1. Plans for the proposed construction are presented to the Fire
Prevention Bureau for approval prior to the issuance of a
building permit
2. The proposed construction shall conform to all applicable
provisions of the Massachusetts State Building Code, 527 Code of
Massachusetts Regulations, the Salem Fire Prevention Code, the
Salem City Ordinances, and Massachusetts General Laws relative to
fire safety.
3. The applicant shall arrange for an inspection by the Fire
Prevention Bureau upon completion of the work.
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�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 and 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.
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On the basis of the above findings of fact, and on the evidence presented at
. � the hearing, the Board of Appeal concludes as follows:
db hd-+
i 1 . Special conditions exist which especially affect this building but
do not affect the district generally;
I 2. Literal enforcement of the Ordinance would involve substantial
y hardship to the petitioner;
1 n it
y ' 3. The relief reqeusted can^be granted without substantial detriment to
Ile public good and without nullifying or substantially derogating ,
from the intent of the district or the purpose of the Ordinance.
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