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376 ESSEX STREET - ZBA (2) 376• �sSex gi�+c:�1r f � � � f a^�\ 'e^`\^\) `J V \! � 1 1 �V,Y:dl. �WYr YyILCgAI NOI1CCkn i,n� ��. Ic ,����"�� i�BOARD�00FSA1�PFRAt.,�u�����1,?mll ,yi t ih ryh+Will'Ih"olWo ' dtl personq,interes FindkhePekittbn" b+�' fqj �n,h�4ywhk Tiv�sflA�r�mande��� ��k�tik ,"thP�� Fam k Bord,af�pP0alslSor ?Yex,UrGZSw w' jP�i �.11N�k`te$IS � S) i�aring�,it�o �bAY"` EP'Y`EMBERIB''1998�A'I�e30���"� . r,+ PiM" �V� V,u�NOAT"�;��Wi��i�� � ��� � �,�V�� �tt ifi�i �'i�� iso PI ♦li hV I I�i�{� YoI,iA r RONAN, SEGAL & HARRINGTON ATTORNEYS AT LAW FIFTY-NINE FEDERAL STREET JAMES T.RONAN(1972-1987) SALEM,MASSACHUSETTS 01970-3470 JACOB S.SEGAL MARY PIEMONTE HARRINGTON GEORGE W.ATKINS.III (978)744-0350 BRIAN P.CASSIDY FAX(978)744-7493 FILE NO. OF COUNSEL HEATHER S.RAMSEY August 21, 1998 n . m City of Salem Q N Zoning Board of Appeals One Salem Green r Salem, MA 01970 s o ca 2 Z RE : 376 Essex Street, Salem, MA "y N t� W Members of the Board: The undersigned represents the plaintiffs in Land Court Case No. 227758 which was an appeal of your decision of August 15, 1995 concerning the above referenced property. Enclosed is a decision of Chief Justice Peter W. Kilborn dated June 1, 1998, which remanded this matter to your Board. I hereby request an Administrative Hearing of the Board at your meeting of September 16, 1998 in order to conform your prior decision to the judgement of the Land Cou . V y truly yo rge W. ins III, Esq. GWA/mtc CC: Attorney John R. Serafini, Sr. Attorney William J. Lundregan John F. Davis, Jr. , et al olC') C> o 4 i= `p COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT Miscellaneous Case No. 227758 JOHN F. DAVIS,Jr.,ALYCE M. DAVIS, STEVEN K. GREGORY,MARY KATHRYN BRATUN, PALMER SWECKER,and ELMA SWECKER, Plaintiffs Vs. STEPHEN TOUCHETTE, GARY BARRETT, NINA COHEN,ALBERT HILL,and JOSEPH YWUC, AS THEY ARE MEMBERS OF THE ZONING BOARD OF APPEALS OF THE CITY OF SALEM, LEO E.TREMBLAY,AS HE IS THE INSPECTOR OF BUILDINGS AND ZONING ENFORCEMENT OFFICER OF THE CITY OF SALEM,and LINDA W.NICHOLS,AS SHE IS THE SOLE TRUSTEE OF CHARTER TRUST, Defendants QEQI51QD1 Plaintiffs seek,in Count 1',to annul a decision of defendant Zoning Board of Appeals (the board)of the City of Salem(the city)upholding the August 15, 1995 issuance of a building permit by the city's Building Inspector(the building inspector), defendant Leo E. Tremblay, for property at 376 Essex Street, Salem(locus),owned by defendant Linda W.Nichols, as trustee of 'In a motion to allow an amended complaint,plaintiffs raised Count II,alleging abandonment of the nonconforming use. The motion was withdrawn before I ruled on it. 1 Charter Trust(Charter). The board upheld the building inspector by a vote of three in favor of overturning him and two in favor of upholding him(four votes were necessary to overturn). Plaintiffs attack the building permit, arguing a special permit was required, since(they assert)the proposed use would be a change or substantial extension of a prior nonconforming use. Charter challenges plaintiffs' standing and, in the alternative, defends the board's decision. A trial was held on June 20, 1997 in the County Commissioner's Hearing Room in Salem. A stenographer recorded.the testimony. Thirty-two (32) exhibits(some with multiple parts)were introduced into evidence and are incorporated in this decision.' One of the exhibits (11) is a deposition of John V.Cunney, M.D., (Dr. Cunney),who for many years had his office and residence at locus. One chalk was presented. The record also includes a Statement of Agreed Facts executed by all counsel and filed September 2, 1997. The following witnesses testified: the building inspector, Mr. Peter Caron,Eric Reines, M.D., Ms. Catherine Hicks Kirsch, Ms. Linda Nichols, Mr. Oscar Palmer Swecker, Mr. Steven Gregory, Ms. Alyce Davis, Beverly Shafer,M.D., (Dr. Shafer) and Mr. Louis D. Panakio. I viewed locus on the day of trial. The issues are(a)whether plaintiffs have standing and(b) whether the proposed use by Charter is a change or substantial extension of the nonconforming use of locus. I find and rule as follows. 1. Locus is a large, handsome,three story structure, appearing from the 'The parties numbered 56 exhibits for identification, but introduced only 32. Almost all the potential exhibits, marked but not introduced,were removed from the record by the parties. 2 outside to be a residence. It has been variously described as in the Victorian or Colonial Revival style. Exhibit 6 is a copy of the plans submitted with the application for the building permit at issue in this action. On those plans, which show the first and second floor of locus,the rooms are numbered and I will use those room numbers for convenience. The use designations on exhibit 6 do not correspond to the uses in effect before 1995. The interior of locus has been refurbished but not furnished. The interior layout shows the residential past of locus, although now the rooms are neutral as to use. There is no kitchen on the second or third floors. The area designated for new parking at the rear of the house has not yet been hot-topped. 2. Dr. Cunney purchased locus in 1941. Dr. Cunney and his family resided at locus from 1942-1981 and during that period Dr. Cunney maintained his office there. In his office Dr. Cunney primarily did examinations. He performed no surgery there. His surgery was performed at Salem Hospital. No other physician worked at locus. He employed a full-time secretary and a part-time (20 hours per week)bookkeeper, each of whom used a portion of the waiting room(room 113) as her office and each of whom worked Monday through Friday. Dr. Cunney's employees and patients were not allowed to park in the driveway or at the rear of locus. Patients entered through a rear or(later) a side door to locus. Dr. Cunney's office hours were typically noon to six p.m. on Monday,Tuesday,Thursday, and Friday. He saw approximately twenty (20)patients each day. 3. Dr. Cunney's use of the first floor throughout his tenure was as follows: room 113,waiting room, in which his secretary,a part time biller and all his files were located; room 114,his office;room 110, examination room;room 111, lavatory associated with the medical practice;balance of first floor, residence(including room 103, dining room; room 104, 3 kitchen;rooms 108 A and 108 B [then one room], a family room; and room 107,kitchen storage. Rooms 101 and 102, the front hall, were used for the residence and not patient access.) The - entire second floor was used for residential purposes, four bedrooms,a sitting room and a piazza. The third floor was also used for non-medical purposes. 4. In 1981,Dr. Cunney sold his medical practice and locus to Eric J.Reines, M.D. Dr. Reines worked full time and his wife, Sandra Reines, a physician,worked part time at their practice at locus until June, 1987,when the Reines' moved their medical practice to another location. The Reines' use of rooms at locus was the same as Dr. Cunney's,with two exceptions: the Reines' used rooms 108A and 108B (still then combined) occasionally for about nine months for billing work and they stored records and conducted some billing in part of the basement(Dr. Reines testified Dr. Cunney also stored records in the basement,but Dr. Cunney denied that.) They did not allow patient parking at the rear of locus. Occasionally patients used the front door, usually they used the side door,as had been the practice with Dr. Cunney's patients. Dr. Reines saw patients four days a week and his wife saw patients the other day, customarily, and occasionally in the mornings on other days. Neither saw patients on weekends, and their hours customarily ended at 5:00 or 6:00 p.m. Their employees were a full time receptionist and a part time clerical-helper. Dr.Reines' practice was substantially similar to Dr. Cunney's, as to types of medical activities. Between them, the Reines' saw from eighty to ninety patients a week. 5. On September 30, 1988,Dr. Reines sold locus to Daniel J. Kirsch,M.D.,a medical doctor and practicing psychiatrist, and his wife, Catherine Hicks Kirsch,a social worker engaged in a psychotherapy practice unrelated to her husband's practice. The Kirsches and their two children lived at locus, and the Kirsches saw patients at locus. Mrs. Kirsch's patients used 4 the same side entrance as Doctors Cunney and Reines' patients. Doctor Kirsch's patients used the front door and waited in room 101 before their appointments. Mrs. Kirsch used room 113 as her office and also rooms 110 and 111. Her husband used room 114 as his office and also used rooms 115 and 101. They used the rest of the building for residential purposes. They did not allow patient parking at the rear of locus. Dr. Kirsches' patients came mostly in the mornings; his wife's patient hours included 8:00 p.m. appointments twice a week. Between them,the Kirsches used locus for about forty patient hours a week(the number of hours the premises were used for patients,which could represent a smaller number of patients.) They had no employees. 6. Exhibit 28 is a copy of a memorandum on the stationery of the North Shore Medical Center, dated April 7, 1995,to Dr. Shafer from a Donald M. Geraghty. It states in per: "Subject: Property Purchase The following is to reconfirm our discussion regarding the purchase of the property at 376 Essex Street, Salem;MA. The property will be purchased in the name of a nominee trot to be held by the Law Office of Serafmi, Serafmi,and Darling. This trust will lease 60%of the building to you to be used by you and your associate in conjunction with a new female surgeon to be recruited by CPSC. Charter will be responsible for the remaining 40%of the space within the building. The design and use of the space is to be finalized within the final lease document. The purchase options will also be covered in the lease." 7. On July 28, 1995,the Kirsches conveyed locus to the present owner, defendant Linda W.Nichols, as trustee of Charter Trust(a copy of the deed is exhibit 10). North Shore Medical Center, Inc. (formerly Salem Hospital) is the sole beneficiary of Charter Trust. 8. An application for a building permit for locus (exhibit 4)was filed with the building inspector on August 2, 1995. The application stated it was for alteration of an 5 existing structure. The proposed use was listed as"hospital, institutional" with a note stating the proposed use was"Doctor's office." The owner listed was North Shore Medical Center and the total cost of improvement listed was $55,000. The application was signed for the owner by the builder. 9. Exhibit 6 is a copy of the plans(first and second floors)of locus submitted with the building permit application. The labels in the rooms show the entire first floor devoted to medical uses, as is the second floor, except that room 210 (formerly a front bedroom)is unlabeled and room 203 is labeled"enclosed porch". 10. A building permit was issued on August 15, 1995 (Building Permit No. 430-1995) (exhibit 5). A request for an enforcement order(exhibit 7)was filed with the building inspector on October 16, 1995. The building inspector denied the requested enforcement order by letter dated October 23, 1995 (exhibit 17). An appeal of the building inspector's decision was taken to the board by petition dated November 21, 1995, (exhibit 8). On April 3, 1996,the board filed with the city clerk a decision upholding the building inspector's decision.' Plaintiffs filed their appeal here on April 22, 1996. 11. Exhibit 32 is a copy of an undated lease' (the lease) from Charter to "Beverly M.Shafer,M.D.,P.C., a Massachusetts professional corporation" (signed for that 'After briefly describing the history of locus,Dr. Shafer's testimony (as to her intentions), and the physical changes,the decision recites a three to two decision in favor of rescinding the building permit and that, four votes being required,the petition to revoke was denied. 'Exhibit 31 is a cover letter from Charter's attorneys to Dr. Shafer, enclosing copies of the lease for her signature. The cover letter is dated September 8, 1995, so the lease was presumably executed some time thereafter. 6 corporation by Dr. Shafer). The premises demised under the lease are described as "a portion of the land and building thereon known as and numbered 376 Essex Street, Salem,Massachusetts, as shown on Exhibit'A' attached hereto, consisting approximately 4 of a roximatel 2160 square feet,being sixty percent (60%)of the first and second floors('medical office space'),as well as the third floor apartment,together with the right to use in common with others entitled thereto,the parking areas and driveway within the Property. As used herein,the term'Property' shall mean the land and all improvements thereon commonly known as and numbered 376 Essex Street, Salem, Massachusetts. It is understood that the examination rooms within the medical office space designated on Exhibit'A' will be designed to be used by the Lessee in common with a general surgeon in accordance with a mutually agreed upon schedule." Exhibit A to the lease contains copies of plans for the fust and second floor of locus,which appear to be identical to the building permit plans. Color codes distinguish three different kinds of use: blue for"common area,"yellow for"Lessee's exclusive use,"and orange for"General Surgeon area." According to those designations,all of the fust floor is"common area"except room 103, which is exclusive to Dr. Shafer; on the second floor,room 204 (and apparently room 203 and 205) is dedicated to the"General Surgeon,"room 209 is yellow,with the notation"Dr. M. Sasmor" and room 210 is yellow,with the designation"Bedroom for Dr. Shafer/Dr Sasmor." The rest of the floor is designated blue. 12. The lease provides,as to use: "The LESSEE shall be entitled to use that portion of the Premises situated on the fust and second floors as a physicians office and that portion of the premises situated on the third floor as a residential apartment." 13. The lease provides "LESSOR shall, at its expense,design and renovate the Premises to accommodate LESSEE's medical practice in accordance with the plans 7 and specifications set forth on Exhibit 'B' attached hereto." Exhibit B is a budget for renovations, coming to $103, 068, attached to which are eight pages of "scope of work" listing details of promised work, room by room. 14. The lease provides: "The LESSOR reserves the right and option to lease the remaining forty (40%)percent of the medical office space within the Property,which leased premises shall include the right to use certain examination rooms within the medical office space as designated on Exhibit'A' in accordance with a mutually agreed upon schedule referenced in paragraph 2 above (the 'additional leased premises'),to a general surgeon,subject to the LESSEE'S right of first refusal to the additional leased premises as set forth below." There then follows a right of first refusal in the lessee, such that, on learning the identity of the proposed general surgeon and his/her lease terms, the lessee may lease the general surgeon space on the same terms. The lease also provides a purchase option in the lessee. 15. Exhibit 51 is a letter to the building inspector from Charter's attorneys, dated January 23, 1996,enclosing a set of"as-built"plans and a parking plan. The letter states:"[w]e will be seeking a Certificate of Occupancy based upon these plans." These plans show changes from the building permit plans. On the first floor: room 114,"waiting"on the building permit plans,becomes"waiting room/living room;" 102, "reception,"becomes"foyer;" 104,"break&project room"becomes"kitchen.& dining;" and 105,"photo"becomes"mud room." On the second floor: room 204,"office,"becomes"sitting room and porch;"206, "doctor's office,"becomes`office manager;"210,unlabeled,becomes"bedroom;" and 214 "office,"become"library." The"As-Built"plans include a plan for the third floor(no such building permit plan),which shows two"guest bedrooms,"an"Exercise and TV Room," a large 8 closet, and a"bath." The parking plan shows, in addition to the two spaces in the existing garage,the creation of six new parking spaces made of bituminous paving. 16. Dr. Shafer is a reconstructive and plastic surgeon. She practices at North Shore Medical Center and Beverly Hospital. She now has an office at 355 Essex Street, Salem. She sees patients at that address two days a week and her associate and employee, a Dr. Sasmor, sees patients there a third day of the week. Dr. Shafer's office proved too small and she looked for other space. She found locus and then approached the medical center for assistance in establishing her residence and office there. The legal arrangements described above resulted. 17. Dr. Shafer testified there had been a hurry to get the building permit application filed,she had never seen the plans submitted with it until afterwards,and the plans were prepared by or at the direction of the medical center. She testified her intentions were to use locus as follows: room 114 would be a living room,to be used as a patient waiting room during the day;room 103 would be her office;room 113 would be used for minor surgical procedures,but not reconstructive surgery; room 104 would be used as an eat-in kitchen; she had thought to have a photography room in room 105 but found it was too small,so its proposed use is a mud room. Room 102 is shown as a foyer. The other rooms on the first floor are as labeled on the building permit plans. As to the second floor,Dr. Shafer testified room 206 would be used by her office personnel and room 209 by Dr. Sasmor. The rest of the second floor would be used for residential purposes and the third floor would be entirely residential. Patients would not have access to the second or third floors. 18. Dr. Shafer testified she lives in Boston, Salem,Marblehead and Beverly. Exhibit 36 is a copy of a deed into Dr. Shafer of residential property at 34 Milford Street,Boston, 9 purchased in November, 1995. The medical practice associated with Dr. Shafer would consist of Dr. Sasmor, a full-time office manager, a part-time secretarial helper, a part-time nurse and a part-time biller. 19. Dr. Shafer testified she does not plan to have a general surgeon at locus and has the ability to control that by exercise of her right of first refusal or her purchase option and that the lease described above has not gone into effect and will be changed. 20. In 1955,under the 1955 Salem zoning ordinance (exhibit 1),locus was in a use district known as "D-Apartment house district," which allowed all uses in the single or general residence districts.At that time the following was an allowed use in the single residence district: "8. Office or studio of a physician or surgeon,dentist, artist,musician, lawyer, architect,teacher or other like professional person located in his or her private residence,provided that there is no display visible from the street nor advertising except an announcement sign or a professional name plate not larger than 288 square inches attached against the dwelling and not protruding therefrom;" 21. In 1965,the zoning ordinance was amended,placing locus in an R-2 two family residential district(exhibit 2). The use of locus as a professional office located in a private residence ceased being an allowed use and, thus,became a nonconforming use. Subsequently,a professional office use within.a dwelling became a specially permitted use in the R-2 district with restrictions on gross office floor area and the number of non-resident employees allowed within the office (sections 5-3[c] and 5-3[b] current ordinance,exhibit 3). 22. The current ordinance also provides: Section 5-36): 10 Extension of nonconformity. Notwithstanding anything to the contrary appearing in this ordinance,the board of appeals may, in accordance with the procedures and conditions set forth in sections 8-6 and 94 herein, grant special permits for alterations and reconstruction of nonconforming structures and for change, 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,nor shall this paragraph apply to billboards, signs or other advertising devices." Section 94(b): "(b)The board of appeals may authorize the issuance of a special permit for a change to another nonconforming use of an existing nonconforming building or use or its alteration or enlargement,provided that the board finds that the use as changed, altered or extended will not depart from the intent of this ordinance and its prior use or degree of use;provided that such building or use is neither increased in volume nor area unreasonably." 23. In fiscal year 1983, Salem became classified as having separate residential and commercial tax rates. From fiscal year 1983 through fiscal year 1995,a residential tax rate was applied to locus. In fiscal year 1996, a split tax rate was applied to locus;the split that year was fifty per cent residential and fifty per cent commercial. STANDING 24. Plaintiffs are all abutters to locus. Plaintiffs Davis, with their two children, live at 374 Essex Street, immediately to the east of locus. Plaintiffs Swecker live at 380 Essex Street, immediately to the west of locus. Plaintiffs Gregory and Bratun(husband and wife) live, with their son, at 141 Federal Street,immediately to the north of locus. Except for a small portion of the northwest boundary of locus,plaintiffs surround locus. The Davis and Swecker houses are quite close to locus,my estimation is about twenty-five feet. The 11 GregoryBratun house fronts on Federal Street and is a substantial distance from the house on locus. In their complaint,plaintiffs allege they "are persons aggrieved by the decision of the Board in that their injury is special and distinct from the concerns of the rest of the community, their legal rights have been or likely will be infringed,and their property interests are adversely affected." At trial,plaintiffs from all of these three abutting properties testified as to their concerns regarding the negative impact the establishment of a business use at locus would have on them as residents and on the value of their properties. 25. Charter has challenged plaintiffs' standing. In order to rebut the presumption afforded abutters, Charter must offer evidence that plaintiffs are not aggrieved persons under the statute. Charter offered expert testimony,the only expert testimony offered at trial,showing no diminution in property value or economic harm will be suffered by any of the plaintiffs due to the proposed use as shown on the as-built plans. I conclude Charter has rebutted the presumption of standing. 26. Because Charter has effectively challenged it,the burden returns to plaintiffs to establish their standing. Marashlia_n v Zoning Board of Appeals ofNewburwor 421 Mass. 719,721 (1996). Three plaintiffs testified as to standing: Palmer Swecker, Steven Gregory, and Alyce Davis. Among them,they offer evidence as to all three properties which almost surround locus. 27. Part of Charter's argument as to standing is to quote fears of plaintiffs that certain kinds of activities will be carried on at locus. Charter then argues the evidence at trial shows those activities will not occur. That is to confuse standing with the case on the merits. There is certainly evidence (the building permit application plans)which would support a finding 12 that the first and second floors of locus will be used almost totally for medical purposes, and by a number of doctors. Plaintiff Swecker characterizes that use as a clinic. Whether that is true (the ordinance has a definition of`clinic") or not, the possible use of locus for clinic type activities is real enough so that the question becomes: who has standing to protest(at the board and in this court)such a change of use? If plaintiffs do have standing,then the inquiry turns to the merits of the board's decision. 28. I find plaintiffs have standing. An increase in the intensity of medical use at locus and the establishment of parking at the rear of locus would result in an increase in the amount of traffic crossing the sidewalk at locus. Heretofore,the only cars customarily crossing would be those of the residents of locus, as there never has been patient parking on site. Plaintiffs Swecker and Davis have legitimate safety concerns as to that increase in traffic crossing the sidewalk. All plaintiffs, as immediate abutters,but particularly the Sweckers and the Davis',have a legitimate concern as to the intrusion of patient parking behind locus,where there has been none heretofore'. Also,plaintiffs are immediate abutters in the same residential zoning districe. As such,they have a legitimate interest in preserving the integrity of the district against a change to a use which is not allowed of right in the district,and I find their concerns as to the negative impacts of such a change on them credible. Cf. Murray v. Board of ApAeals of 'The newly established parking would create noise and, depending on the season of the year, lights shining onto at least the Davis property. (I do not read footnote 5 in Marashlian,421 Mass. 719, 723-724 as saying headlights can never be a problem.) 6 There is evidence(transcript,pages 211 and 213-214) as to the zoning of plaintiffs' properties being in the R-2 district. In any event, given the locations of locus and the lots to one another, and the fact they are all relatively small, it is a justifiable inference they are all in the R- 2 district. 13 Barnstable. 22 Mass. App. Ct. 473,476(1986). In so finding, I have considered the appraisal testimony of Mr. Panakio and the fact that Essex Street has over the years experienced an increase in professional use. I do not understand the concept of"integrity of the district" in a situation such as this to have been abrogated by Cohen v.Zoning Board of A=eals of P ou h_ 35 Mass. App. Ct. 619, 624,fn 5 (1993.) CASE ON THE MERITS 29. Charter defends the decision of the board fust on the provisions of the ordinance relative to prior non-conforming uses and also on the basis of the tests set forth in Bridgewater v. Chuckran, 351 Mass.20,23 (1996) and Powers v. Building Inapector of Barnstable, 363 Mass. 648 (1973). 30. Section 8-5 of the current ordinance provides in relevant part: "Sec.8-5. Nonconforming use of structure. If a use of a structure or a structure and premises in combination exists that would not be allowed in the district under the terms of this ordinance or amendment, the use may be continued so long as it remains otherwise lawful, subject to the following provisions: (1) No existing structure devoted to a use not permitted by this ordinance in the district in which it is located shall be enlarged, extended, constructed,reconstructed,moved or structurally altered, except in changing the use of the structure to a use permitted in the district in which it is located. (2) Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this ordinance,but no such use shall be extended to occupy any land outside such building. (3) On any building devoted in whole or in part to any nonconforming use,work may be done in any period of twelve(12) consecutive 14 months on ordinary repairs,or on repair or replacement of nonbearing walls,fixtures,wiring or plumbing to an extent not exceeding ten.(10)percent of the current replacement value of the building,provided the cubic content of the building as it existed at the time of passage or amendment of this ordinance shall not be increased. (4) If no structural alterations are made, any nonconforming use of a structure or structure and premises may be changed to another nonconforming use,provided that the board of appeals, either by general rule or by making findings in the specific case,shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. In permitting such change,the board of appeals may require appropriate conditions and safeguards in accord with the provisions of this ordinance." 31. I find the changes in locus conform to subsections (1)and(3) above. The handicapped ramp is an extension of the building and,apparently,the exterior wall of the building was pierced to provide access for the ramp. However,in light of the protections given handicapped ramps in G. L. c. 40A, § 3,I find the ordinance should be read as permitting those changes. Exhibit 42 (and Mr.Panakio's testimony) is the only evidence of replacement value. It shows the duplication cost to be approximately $953,500. The only evidence of the cost of the work is the building permit value, $55,000. Even assuming that might be low,as is often the case,I accept that the 10 percent maximum has been met. 32. I find the changes do not conform to subsection 8-5 (2). The"time of adoption or amendment of this ordinance"is 1965,when locus became nonconforming. That was during the tenure of Dr. Cunney, and paragraph 3 above shows that many of his rooms were not arranged or designed for the medical use-which Charter proposes. Further, the medical use- the parking- is to be extended into the rear yard. I do not accept Charter's argument that the 15 non-conforming use is a mixed use -residence and professional office and that the ordinance is not meant to sanctify any particular floor plan. If Charter intended to have no more space devoted to office use than Dr. Cunney did,but in different rooms, Charter's argument might have more weight,but such is not the case. 33. How does the proposed use fare under the Powers/Chuckran tests?The first problem is to decide what the proposed use is. One approach is to take the building permit plans at face value and hold Charter to the lease. In combination,those arrangements show a medical building with live-in space for Dr. Shafer. Dr. Shafer protests that the building permit plans were done without her knowledge and that the arrangements should be judged by the as- built plans. Charter explains away what,to the neighbors,is clearly intended as a clinic. Charter says"residence"means"a residence,"not"principal residence," and that Dr. Shafer will probably stay at locus on three to five week-day nights,half the time on Fridays and a quarter of the time on Saturdays (exhibit 34). 34. If this case involved guessing whether Dr. Shafer will do what she says she will do,the board is charged with making that calculation,not I. In that event,I should affirm, leaving the neighbors to bring an enforcement action at such time (if ever) as matters prove to coincide with their forebodings. However,the proposed use even as described by Charter does not meet the Powers/Chuckran tests. These are: "(1) Whether the use reflects the `nature and purpose' of the use prevailing when the zoning by-law took effect. . . (2)Whether there is a difference in the quality or character,as well as the degree, of use . . . (3) Whether the current use is `different in kind in its affect on the neighborhood."' Powers at 653. Charter bears the burden of proof on these tests. Rridgewater v Chucks_++ 351 Mass. at 24. 16 35. The use even as presented by Charter fails the first two tests. The time of comparison is 1965, when the ordinance changed. At that time,Dr. Cunney was in residence. The proposed use (as stated most optimistically for Charter)involves two physicians, not one. In her oral testimony,Dr. Shafer stated that it is not intended that Dr. Sasmor will reside at locus. There is a suggestion in exhibit 34 (Dr. Shafer's letter), however,that Dr. Sasmor"will likely stay overnight 1-2 nights per wk ..." Whichever is the case,there will be a difference in kind from matters as they stood in 1965,not just a difference in degree. The"nature and purpose" prevailing in 1965 was a single physician practicing in his residence. Charter proposes two physicians. The difference is important. Restriction of the use to a single professional is crucial to the establishment and maintenance of the essentially residential character of the use. Charter cites E=ingh m Clinic Inc v Zoning Board of Appeals of Framingham, 382 Mass.283,292- 293 (1981)as support for allowing two doctors to practice at locus. That case supports administrative help but not a second physician in a context such as this case,where the issue is the degree of departure from the situation in 1965 when the use became nonconforming. 36. If Dr. Shafer(by herself)will have more administrative help than Dr. Cunney did,that would be a difference in degree and perhaps the kind of"keeping up with the times"which the cases appear to allow. If Dr. Shafer(by herself)wishes to have her patients park at the rear of the building,that would not be a violation of Powers/Chuckran(however distressing to the neighbors.) Perhaps the board could have decided that Dr. Shafer had to own locus or that it had to be her only residence,but it did not, and the board was not unreasonable in its position. If Dr. Shafer(by herself)maintains the substantial residential presence she professes will occur,the fact that Charter has a right to forty percent of locus and the right to common use 17 of many of the rooms would not be fatal to Dr. Shafer's position,until Charter sought to exercise those rights. 37. The physical and leasehold arrangements now in place would accommodate a clinic or group practice. They may also accommodate Dr. Shafer residing and practicing by herself. The decision of the board was legally incorrect,if it is seen as approving the issuance of a building permit for the uses proposed in the building permit plans or for the use characterized by the as-built plans and Dr. Shafer's testimony. Plaintiffs have not established that the physical changes to locus allowed by the building permit are improper,only that the proposed use is. Therefore,there is no point in ordering the revocation of the building permit. The proper remedy is for use of locus to be limited,consistent with this decision,and for the certificate of occupancy to be so conditioned! This matter is remanded to the board,so that it may render a decision reversing the determination of the building inspector to the extent necessary to comply with the judgment in this action, and instructing the building inspector to issue any certificate of occupancy for locus consistent with the judgment. Judgment accordingly. / �✓ / �. Peter W. Kilbom Chief Justice Dated: June 1, 1998 'Ironically,this is the approach suggested by the building inspector in his letter of October 23, 1995 (exhibit 17)upholding the issuance of the building permit, although from his testimony,it appears he would-contrary to this decision-permit use by Dr. Sasmor as well as Dr. Shafer. 18 COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT Miscellaneous Case No:227758 JOHN F. DAVIS,Jr., ALYCE M.DAVIS, STEVEN K. GREGORY,MARY KATHRYN BRATUN, PALMER SWECKER,and ELMA SWECKER, Plaintiffs VS. STEPHEN TOUCHETTE,GARY BARRETT, NINA COHEN,ALBERT HILL,and JOSEPH YWUC, AS THEY ARE MEMBERS OF THE ZONING BOARD OF APPEALS OF THE CITY OF SALEM, LEO E.TREMBLAY,AS HE IS THE INSPECTOR OF BUILDINGS AND ZONING ENFORCEMENT OFFICER OF THE CITY OF SALEM,and LINDA W.NICHOLS,AS SHE IS THE SOLE TRUSTEE OF CHARTER TRUST, Defendants PURI MEN1 This action was tried and a decision of today's date was rendered. In accordance with that decision it is ORDERED AND ADJUDGED that use of the property at 376 Essex Street, Salem,in the manner indicated by the plans submitted with the application for building permit 430.1995 (exhibit 5 in this action),or use of the property in the manner indicated by the"as- built"plans submitted at trial,would be a substantial change in the nonconforming use of the property;and it is further ORDERED AND ADJUDGED that any certificate of occupancy for the property must indicate that only one physician may practice medicine at locus and that that physician must reside at the property at least three week-day nights a week,two Friday nights a month and one Saturday night a month,vacations and emergencies excepted; and it is further ORDERED AND ADJUDGED that this matter is remanded to the board of appeals so that it may render a decision reversing the determination of the building inspector to the extent necessary to comply with this judgment and instructing the building inspector that any permit for the property must be in accordance with this Judgment. occupancy! ! ! By the Court. (Kilbom, C.J.) Attest: Charles W.Trombly, Jr. Recorder DATED: June 1, 1998 Ar'f 65Ts o , Nv. 0� " a nere+�ncR SECOND AMENDMENT TO THE DECISION ON THE PETITION OF DONALD L. HODGEMAN ET. AL. FOR THE PROPERTY LOCATED AT 376 ESSEX STREET The prior decision of the Board of Appeal dated March 20, 1996, filed with the City Clerk' s Office on April 3 , 1996, as amended by an undated Amendment filed with the City Clerk' s Office on May 24, 1996, is hereby further amended in compliance with the Judgement of the Land Court dated June 1, 1998 in Davis et . al . v. Touchette et . al . , Miscellaneous Case No . 227758, (hereinafter "Judgement" ) , a copy of which is attached hereto, as follows : 1 . The decision of the Building Inspector/Salem Zoning Enforcement Officer to issue a building permit with regard to the property at 376 Essex Street is reversed to the extent necessary to comply with the Judgement . 2 . The Building Inspector/Salem Zoning Enforcement Officer is instructed that any occupancy permit for the property 155 v ZeA at 376 Essex Street must be in accordance with the Judgement . Q.Vvd Yvnu5+ b2. ✓�/ Je. avadc4b)2 �Ly revivgJ f 0 Cov�P{ i hOv,elr - SALEM BOARD OF APPEALS By: