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376 ESSEX STREET - ZBA f7 -Donald.L. Rodgeman l L%.376 ,ESSEX ESSEX STREET (R_2) ` µ 1 ' V COMMONWEALTH OF MASSACHUSETTS r � 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, A5 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 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 s 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 clerical­helper. 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 L_ 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 part: "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 trust to be held by the Law Office of Serafini, Serafini, 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 f corporation by Dr. Shafer). Theremises demised under the e 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 of approximately 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 first 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 first 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 first 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 4' 7 ands specifications „ p 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 5-30): 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 9-4 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 Bratim (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. Ile Davis and Swecker houses are quite close to locus, my estimation is about twenty-five feet. The 0 6 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. Marashlian v. Zoning Board of Appeals of Newburyport, 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 carred 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. 1 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 district . 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 Appeals 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 Win, 421 Mass. 719, 723-724 as saying headlights can never be a problem.) ' There is evidence (transcript, pages 211 and 213-214) as to the ±oning 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 r j 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. oning Board of Appeals QfPlymouth, 35 Mass. App. Ct. 619, 624, fn 5 (1993.) CASE ON THE MERITS 29. Charter defends the decision of the board first on the provisions of the ordinance relative to prior non-conforming uses and also on the basis of the tests set forth in S Bridgewater v Chuckran, 351 Mass. 20, 23 (1996) and Powers v. BuildingJnsp rrnr gf 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 1. 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. Bridgewater v. Chuckran, 351 Mass. at 24. 16 1 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;vo 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 Framingham Clinic. Inc. v. Z.onina Board of Anneals 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 thgt 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. I c� / 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 °�. Titu of "5ttlem, 'fflttssadjusetts ',,� �nttra of �p�rettl 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 under the City Clerk' s Office on April 3 , 1998 , 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 Judgment of the Land Court dated June 1 , 1998 in David et. al . v. Touchette et . al . , Miscellaneous Case No . 227758, (hereinafter "Judgment" ) , 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 Judgment . 2 . The Building Inspector/Salem Zoning Enforcement Officer is instructed that any occupancy permit for the property at 376 Essex Street must be issued in accordance with the Judgment and must be made available for review by the City Solicitor to ensure that the Certificate of Occupancy is so conditioned. Za9,� l Oj (sGl) Nina Cohen, Chairman Board of Appeal COMMONWEALTH OF MASSACHUSETTS r 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 I U R-G M E N I 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 i occupancy permit for the property must be in accordance with this judgment. By the Court. (Kilbom, C.J.) Attest: Charles W. Trombly, Jr. Recorder DATED: June 1, 1998 ATTESTi narn�nYp d��� g� j�jG%ILTIMN,.SEGAL & HARRINGTON ATTORNEYS AT LAW E{}[FIFTY-NINE FEDERAL STREET #By Z! p JAMES T. AN(1922-1987)JAC `{'$ Fkk SAJ�! .MASSACHUSETTS01970-3470 CITY SEG MARY Y P EMONTE HARRINGTON "o`a J �' �?F ^4 e GEORGE W.ATKINS,III oECEIVED [508)]44-0350 rt1-I1X, BRIAN P.CASSIDV R FFk,Mk5S• FAX(508)744-7493 v Vj.l CITY OF SAL- FILE NO November 21, 1995 City of Salem City of Salem Zoning Board of Appeals Leo A. Tremblay One Salem Green One Salem Green Salem, MA 01970 Salem, MA 01970 Re: 376 Essex Street, Salem, MA Members of the Board and Mr. Tremblay: Enclosed is a Notice of Appeal of a decision of the City of Salem Zoning Enforcement Officer reference the above-cited premises which is hereby filed in accordance with Massachusetts General Laws Chapter 40A, Sections 7, 8, and 15 and the Salem Zoning Ordinance Section 9-3(d) ( 1) • DONALD L. HODGMAN ET AL By the' attorneys, RO , SEG 'L & GTON y: lG rge W. AtXins. III BBO#: 023 . 0 59 Federal Street Salem, MA 01970 508-744-0350 kmb Enclosure cc: L. Nichols, Trustee, Charter Trust Robert A. Ledoux, Esq. NOTICE OF APPEAL TO THE CITY OF SALEM 1a¢11llY 1!t ZONING BOARD OF APPEALS 7Y 01 i-u SASS (',If 1?K'S Of F1CF Donald L. Hodgman of 373 Essex Street, Salem, Massachusetts, and others listed on Exhibit A attached hereto (collectively, Petitioners) hereby give notice of appeal of a decision of the Zoning Enforcement Officer in accordance with Massachusetts General Laws Chapter 40A, Sections 7, 8, and 15 and the Salem Zoning Ordinance Section 9-3(d) ( 1) . A Building Permit Application for Alterations to the premises at 376 Essex Street, Salem, Massachusetts, was submitted to and a Building Permit issued by the Salem Building Inspector's office on August 15, 1995 . Petitioners ' request for enforcement was delivered to the Zoning Enforcement Officer on October 16, 1995, and a decision of the Zoning Enforcement Officer refusing to take enforcement action was issued on October 23, 1995 . Petitioners hereby request the Salem Zoning Board of Appeals as follows: 1. To rescind the decision of the Building Inspector to issue the Building Permit for construction at 376 Essex Street. 2 . To prohibit issuance of a Certificate of Occupancy for the structure at 376 Essex Street, except for use of a portion of the structure as a professional office or home occupation by an individual residential owner to the extent such use was established prior to enactment of the Salem Zoning Ordinance. As grounds therefor, Petitioners state as follows : 1 . The Building Permit Application and the plans submitted therewith on their face describe a nonresidential use not permitted in the zoning district in accordance with Section 5-2 (a) and (b) of the Salem Zoning Ordinance, namely, use as professional offices . 2 . The Building Permit Application and the plans submitted therewith on their face describe a substantial extension from a nonconforming use which requires the grant of a special permit by the Zoning Board of Appeals in accordance with Section 5-3( j ) , 8-6, and 9-4 of the Salem Zoning Ordinance, namely, expansion of a single physician residential owner's use of two rooms as a professional office to use of two floors of the structure for professional offices by more than one non-owner and non-resident physician. 3. That the decision of the Building Inspector in response to the enforcement request of the Petitioners reciting that a Certificate of Occupancy will issue for "only one doctors office and only one dwelling unit" is contrary to the Building Permit Application and the plans submitted therewith and the decision must limit use and occupancy to the extent and nature of the prior nonconforming use, namely, use of two rooms for a professional office or home occupation by a single physician who is a residential occupant and owner of the premises . November 21, 1995 DONALD L. HODGMAN ET AL By their attorneys, AN, SEGGApL & NGTON _ lam(/ eyee W. ins, III BO#: 02 0 59 Federal Street Salem, MA 01970 ? z 508-744-0350 x ~ W c, � cs, �n EXHIBIT A 1• Donald L. Hodgman 373 Essex Street, Salem,Massachsuetts 2. Martha Field Hodgman 373 Essex Street, Salem, Massachsuem T` 3. John F. Davis, Jr. 374 Essex Street, Salem,Massachusetts, 4. Alyce M. Davis 374 Essex Street, Salem,Massachusetts S. John Casey 17 Flint Street, Salem,Massachusetts 6. Bruce Goddard 17 Flint Street, Salem,Massachusetts 7. Steven K Gregory 141 Federal Street, Salem, MA 8. Mary Kathryn Bratun 141 Federal Street, Salem,MA 9. William H. Guenther 365 Essex Street, Salem,MA 10. Diedre Guenther 365 Essex Street, Salem,MA 11. Annie Harris r- 28 Chestnut Street, Salem, MA 12. Timothy Clarke 361 Essex Street, Salem, Massachusetts 13. Alice Clarke 361 Essex Street, Salem,Massachusetts 14. Palmer Swecker 380 Essex Street, Salem, Massachusetts 15. William S. Clough 143 Federal Street, Salem, Massachusetts r WILLIAM RUSSELL BURNS,JR. 22 BECKFORD STREET SALEM.MASSACHUSETTS 01970 Mr . Matthew V. Storin Editor The Boston Globe 135 Morrissey Boulevard Boston, Massachusetts 02107 Dear Mr. Storin: I am writing to complain about a column which was written by Ms . Anne Driscoll and which appeared in the Sunday, March 17 , 1996 North Weekly section of the Boston Globe. A copy of the column is enclosed. While logic, fairness . and facts have never been Ms . Driscoll ' s attributes , the column on March 17 takes a giant leap into the gutter of prejudice, dishonesty, and venomous writing. The subject of Driscoll ' s column is a recently vacant doctor ' s office and house , at 376 Essex Street, in the heart of Salem' s McIntire Historic District . The North Shore Medical Center purchased the house,(not for a Dr . Shafer, as Driscoll claims} for a massive clinic, housing up to five doctors , one of whom may be Dr. Shafer . Driscoll ' s claim that only Dr . Shafer will use the house is a lie . I am enclosing th e North Shore Medical planfor the two floors of the house, and you will see that the changes being made are extensive , and that they far exceed the existing zoned use ( 1941-1995 ) , which is for a single doctor 's office and his/her residence . In addition to gutting the house for up to five doctors (Conviently ignored by Driscoll ) , the Medical Center will pave the entire yard for parking and install a number of red-lighted exit signs . Driscoll says that we are worrying ourselves silly that the character of our neighborhood might be forever changed. You bet we are ! While our Building Inspector was blind-sided by all this , our City Solicitor, contrary to Driscoll , was not ! His ruling is that Dr . Shafer must both practice and live in the house. i i Finally, Driscoll claims that Dr. Shafer "has refurbished the building, restoring the oak wainscotting to its original luster ,painting jaded walls , and shoring up sagging roofs . " The truth is that any work that has been done has been by the Medical Center and not by an allegedly caring Dr . Shafer. The Boston Globe is a great newspaper , and it cannot afford to have on its staff a person who so consistently , so completely, and so premeditatedly distorts the facts to satisfy some hidden agenda . She is beyond redemption, and should not continue as a writer for the Boston Globe. �Ver�, Truky, Your—e7,-e j William KusselBurns , J� I i e I i i I i i l �.----� FLOOR PLAN FOR 376 ESSEX STREET, SALEM, MA JEXISTING USES 1941 -1995Ll OFFiC.F Von* / y ENrRY frr � 4 L•9 ENVY f3EDROM BEortooM L1V IN6� - EN�SED Roots PorzCN CIO `v Wh He1L. It FPMIL.Y Room 1 i FAMILY CNrRY gR41 ��� (it9amM Dwu+y Roots KIftHEN BEORroM .. .......:....'..... . . o Pt-RI`t FIRST FLOOR PLRN sEcoND FLOOR p/ Existing Physician's Office 1941-1995 (During the past 55 years the living room was sometimes also used by the resident physician for additional office space.) Residential Use 1941 -1995 FLOOR PLAN FOR 376 ESSEX STREET, SALEM, MA \.PROPOSED EXPANDED MEDICAL OFFICE USE t (per plans on-file with Salem Building Inspector, August 1995) ` 1 106 WA111AU // , Ipgq %/ IDCjCS/ DiiiG& /'i HG �pSM .� VIA M ;�. r, P167 Fff cYte `� / /�RECEPnon1 ii '. 101 'i i - (^ (0 TV RI i IDD U0Ve,/�<., , Pu+�oan - /zl5fao / tlnll i .4err X10 � j ;: FIRstR�RP "Il jG(.C�Nt7 YI.�)n� �I,ft(V ® Proposed Medical Offices per Plans C� Residential Use Q) -- Not labeled on Plans 'BuoiM„-'a tDWn r 'to and; a;'1 Ind,., F' ' S t e Salem", „`houldF,open its doors to Edoctor. �, . 011ld �9 'alk.' he sun was,fadingaiut'still bnghtthe day`that commodations) to see the city for whit is. Because�� j all 'Dr.Beverly Shafer was:welcomed into the fold they took a detour'off Derby Street, whereonce' q inv- The occasion was annual Neighborhood =wharves berthed'ships that plowed every sea they imQ)i� Iq he iFafl Furifest party attended by come of the :,,,see.the poverty that is.now decayuig the city. It'e,begp },, g:, best and the brightest of Slem and by any said of Salem that it is a city with one foot in Marble one measure,Dr.Shafer,should have been on the A list party ; and the other in Lynn ' r rii., roster. She is mtensly bright,.charnung,;impeccabl 11a 1. Y ; The truth of the:matter is that some of these nelglya w rco dressed and grate b"eautiful. Plastic and reeonativetive4,,bora of Dr. Beverly Shafer;are hopelessly out of toi4.1, lay sm'gery is also a second,r,'career for.br. Shafer unGlfshe," :Today's Salem ui;fraughi`with problems,:howevegm life was nearly 30 she was a talented artist who reshaped her: .deep,, divisive ones:;,And`while the<rather;,parocJyj;yl ,'. fine hand-motor skills anda�[eenteye mto an ,+neighbors of Essex Street-band together'to•.fight gf� y r n I forte in tails operating;room ,{ ; t kk ; what the erosive as the encroachin interests of t kA 17ie conversation that ilegaht day last,September .;North Shore Medical Center,and the arrival of a doctors I ” was breezy and hghthltedsup by,cocktails on a fall wind., 'office they claim;will.threaten the integrity of tfioiP ' There was much m f Ni ay quirt's44 when Dr.Shafer woiild be = neighborhood, theylose'sight of the fact that Sleull moving into 376 Essex SA a 100-year-old Colonial reviv- needs a strong economic base of,busmesses and.prefesrl l home where there:was mom for her to live, well as sionls if it wants to remain a city that can be a;comfoaitc' farmorespace forher patiir"' an the•etowded office , '. - able.home with a future rather.than simply-a,;touristi 1 she currently maintains down the street at 355 Essex St. stop`exploiting'its past. Part of that professionaLIbraw t Then Dr. Shafer confided to several in this friendly should include an accomplished physician with the repu- ciowd that she would also be maintaining her residence g talion of Dr.Shafer: { c s m Boston. �. q Since then hernei loon%h9ve�held fimdsi:Aiau�is� neighbo hq'odIs ocused onet iefuuals�a id balustrades of„" gPita historic dlstneta; ,e}a rerumbles elaewf!Pre�ui ", to hu e a]wyer to challenge her in everraised way they cou d I,Wie `weight of a grgavng" ass,.of poor,,of`inadequt t' Slam isa city with.lots of history, and;the'history on housing, and of the infestation of iliugs and cnme::ft+ig'i talus partimlar street'is that Dr. John Cunney had hued 'not just the McIntire district that deserves:preseivadon 3 and practiced at 376 Essex St.for 40 yeara:.He was the the entire city needs saving and,the way to preserve'thL� a : 'entire city is to serve the entire city by accommodatin F sort hometown family practitioner everyone took their . P ailments to. But medicine has changed much since Dr. " its changing Heade,even while'conaeiving the best of Ifsh past. Before North Shore Medical Center bought Cunney saw his first patient in his home office in 1941. boughEssex St. to give its associate chief of plastic and rt"i Much in medicine has even changed since he saw his last in 1981. ii: ff structive surgery more space and keep her close tolfh� ' , The neighbors now seem to think that whatever Dr.' hospital, the,building had been on the market'thWg'" Shafer is planning to,do,to,deliver.health care to her ears g P "1 y growin more and more dela idated. q patients in 1996 in a building still known as Dr.Cunney's"` ' She has refurbished the building, restoring the gak house is far more than the neighborhood can reasonably wainscotting to its original luster, painting faded wfti stand. Specifically, they object to the fact that she will' and shoring up sagging roofs.She has kept the historf o not be living at.the property full time. Fueled by false,. integrity of the building intact and she will be seekie,' rumor and misunderstandings,they claim that the North' Patients in much the same manner that Dr. Cunney i 11 Shore Medical Center, the region's largest hospital and before her, only she will not be living therein the sa 'a city's largest employer and the purse behind the build- manner as he did. ing's$325,000 purchase on behalf of Dr.Shafer, has fur-' It is however,the city where she will be registered`{o t five plans to open a clinic. They worry themselves silly .vote, where her car will be registered, where all of her f 'o over glasses of port that the character of their neighbor professional licenses will be sent. It is where her am��, hood'might be forever changed by the fact that Dr. ,:i Will come to visit,where she will exercise and ante Shafer might not be sleeping in her bed at 376 Essex St Where she will host dinner,parties, where she will of every night. quently spend the night ► �- It's important to remember that Salem was once 'a ` Salem Building Inspector Leo Tremblay approviei world-class city.A center of the New World that at one the occupancy permit because he thought Dc Shafer . n.i time contributed 10 percent of the nation's federal bud- . plan conformed to code.City solicitor Robert Ledoux get.-The country's first millionaire, Elias Hasket Derby; already stated that he believes her plan conforms „z i c made his fortune with a fleet that sailed from Slcity Y ode. And Salem Superior.Court Judge Christuie, `i� wharves and by 1790,it was likely the richest per capita McEvoy had previously denied the neighbors' reque t i1 city in America.;Since its early roots,it has been a city for a preliminary injunction to stop work at the site.,F+- .that has supported the gentrified'and privileged class of nally, on Wednesday, the Zoning Board of Appeals w,ill,,;, l the wealthy.A class used to having its Brahmin ways. have the chance to render its decision once and for all n,,� The problem is that Salem is a very different city Slem may not be the world-class city it once T*,,, today. It is struggling,to stay,economically viableand but it is a point of interest to much of the world.It is aia�ti I increasingly looks to's transientclass of tourists to do so ':'a place of,interest to a plastic surgeon and'the neighb.4,'e ( j It does this largely by peddling cheap trinkets and ,Who once invited her to:their annualneighborhood part,; tacky attractions th8t,ezploit'a rather sordid;and tragic,'�Perhaps there is room for both on this street ., . , iigylo j wrinkle in ems pas ,its history of persecutions 1 ! 1 It is perhaps-better that the tourists are not here 'Anne Driscoll, who lives in Sivampscott,'urites a uwzli616.1., long enough (due to the lack of adequate overnightAac ;column for North Weekly. 41U _ t �j. MEMORANDUM OF CHARTER TRUST IN RE: 376 ESSEX STREET INCREASE IN DEGREE OF NONCONFORMING USE SUMMARY A nonconforming use is not enlarged or extended although the number of employees has almost doubled. 101 C.J.S. Zoning 5193 A nonconforming use which began as a one or two man operation and substantially expanded in volume, intensity and manpower was not a change in use. Union Ouarries, Inc. 478 P.2d 181 An increase from six to ten employees was permitted and did not alter the nonconforming status of the use. In Re Associated Contractors, 138 A.2d 99 A professional office use grants the right to employ personnel and facilities reasonably necessary to conduct such profession. Framingham Clinic, 382 Mass. 283 A change in the degree of a nonconforming use by increased volume, merchandise, traffic and hours of operation is not a change in the quality or character of . use and is therefore allowed. Powers, infra. DISCUSSION Zoning law in Massachusetts and several other jurisdictions throughout the country stands for the proposition that a nonconforming use may not only be continued but also increased in volume, scope and intensity without abandoning its nonconforming status. Several of the cases, including the Powers case, are cited in the previously submitted Brief of Charter Trust. In focusing on the issue of an increase in the number of employees, the cases and commentators agree that such an increase is considered as part of the allowable increase in volume, scope and intensity of a nonconforming use. In other words, if the increase in volume, scope or intensity of a nonconforming use is a natural growth of a business, then adding employees to handle such increased use is also permissible. In the renowned legal encyclopedia Corpus Juris Secundum, 101, C.J.S. Zoning §193, pp. 955-956, we find this elaboration: Generally speaking, the rule forbidding the enlargement or extension of a nonconforming use does not prevent an 1 increase in the amount of use . so that a nonconforming use may be not only continued but also increased in volume and intensity. A nonconforming use is not limited to the precise magnitude thereof which existed at the date of the ordinance, but may be increased by natural expansion, and a nonconforming use is not unlawfully enlarged or extended although the number of employees has almost doubled. The natural growth of a business or an increase in the amount of business done is not a change from the nonconforming use permitted by the zoning ordinance. To argue that the volume, scope and intensity of a nonconforming use may be increased but that there may be no addition of employees is inconsistent and against the overwhelming body of law. In the Massachusetts case of Framingham Clinic v. ZBA of Framingham, the Massachusetts Supreme Judicial Court ruled that "absent some express limitation, the right to employ personnel and facilities reasonably necessary to a particular professional use is implicit in the authorization to establish a professional office. Any other construction would ' [destroy] the privilege given in that it would permit [the professional] to have an office but deny him, for all practical purposes, the privilege of using it. "' 382 Mass. 283, 293. It is important to remember that in the Salem Zoning Ordinance prior to 1965 there were no restrictions on the number of non-resident employees or on the gross floor area dedicated to office use. There have been cases in other jurisdictions which have also decided the issue of an increase in employees in nonconforming uses. The Supreme Court of Kansas, in the case of Union Ouarries Inc v. The Board of County Commissioners of Johnson County and the ZBA of Aubry Township 478 P.2d 181, held that the nonconforming use, which began as a one or two man operation and subsequently was expanded in volume, intensity and manpower substantially beyond the initial operation, was not a change in use and that such expansion fell within the general rules of allowing expansion and enlargements of nonconforming uses. The Pennsylvania Supreme Court, in upholding the longstanding zoning case law or nonconforming uses, specifically addressed the issue of an increase in number of employees in a nonconforming use and held as follows: The appellant argues that if the requested [building] permit is allowed, the appellees will be in position to 2 employ ten persons instead of the six now on staff. But if the nonconforming use was admitted and accepted, which it was, and if normal expansion is recognized in the law, which it is, it is difficult to see where the controlling principle in the case changes anywhere along the line between six employees and ten employees. The Court ruled that an increase from six to ten employees was permitted and did not alter the nonconforming status of the use. In Re Associated Contractors, 138 A.2d. 99. Finally, the controlling Massachusetts case on the expansion or enlargement of nonconforming uses, the Powers case, addresses this circumstance. In the Powers case, the following expansion and enlargement of use occurred and the Supreme Judicial Court ruled that, nevertheless, it did not amount to a change in use: 1. a substantial increase in the volume of the business conducted from the premises; 2. additional lines of merchandise added for sale from the premises; 3. increase in manufacturing of products on the premises; 4. increase in volume of merchandise shipped out of premises by parcel post and truck; 5. manufacturing operations on the premises extended beyond daylight into evening hours; 6. retail sale business at the premises operated 7 days per week from morning until 9:00 or 10: 00 P.M. during summer months; 7. there was a large increase in traffic on the street where the premises was located; 8. there was a large increase in the number of persons stopping at the premises which was now open 7 days per week year round; 9. commercial buses began bringing groups to the premises and occasionally the buses would park with their motor running for more than a half hour. Powers at 659. The Powers Court found that despite the above listed changes, the use "represents a continuation" of the nonconforming use and that while there was a difference in degree of such use, there was no change in the Quality or character of the use. 3 CONCLUSION Nonconforming uses are permitted to be enlarged or expanded as of right as long as they meet the three-prong Powers test. Such expansion or enlargement includes an increase in the number of employees. The facts and holdings of the Powers and Framingham Clinic cases, read in conjunction with case law from other jurisdictions as well as treatises on the subject, all clearly allow for an increase in the number of employees of a nonconforming use. Such an increase, under the Powers test, is one of degree but not of the quality or character of the use, and therefore is allowed. Respectfully Submitted, THE CHARTER TRUST By Its Attorney, HN R. SERAFINI, SR. OSEPH C. CORRENTI 1/memo.joe 4 A THE NORTH SHORE r MEDICAL CENTER Salem Hospital February 21, 1996 Mr. Stephen C. Touchette Chairman, Zoning Board of Appeal One Salem Green Salem, MA 01970 Re: 376 Essex Street, Salem Dear Mr. Chairman: My name is Michael J. Geaney, Jr., and I am President of The North Shore Medical Center. I am writing this letter to explain and clarify the Medical Center's involvement with the property located at 376 Essex Street. As you know, the property located at 376 Essex Street is owned by Charter Trust, and the beneficiary of that Trust is the Medical Center. The property was purchased by the Medical Center after we were approached by Dr. Beverly Shafer, who wanted to relocate her private office from 355 Essex Street and maintain a private residence here in Salem. Because Dr. Shafer is a valuable member of our current and future medical staff, and because she required financial assistance to purchase this property, the Medical Center did assist her by purchasing the property and granting her a long-term lease with a purchase option. It is fully expected by the Medical Center that Dr. Shafer, once established in her new residence, will soon thereafter purchase the property. I would like to state quite emphatically that the Medical Center does not have any plans or desire to purchase any other properties along Essex Street, Chestnut Street, Federal Street or within those neighborhoods. The purchase of 376 Essex Street by the Medical Center was an isolated and unusual incident to assist a very fine doctor maintain her private medical practice. It is an overall benefit to the community to have her skills available to the residents of this area. Sincerely yours, Michael J. Geaney, Jr., President, The North Shore Medical Center 81 Highland Avenue . Salem, Massachusetts 01970 . Telephone 508. 741. 1200 Chi of ,$ttlem, C�ttsstttljusetts M iaQp Pnttra of (AuVeal ww February 16, 1996 John Serafini Sr. 63 Federal Street Salem, Mass . 01970 RE : Petition at 376 Essex Street Dear Mr. Serafini : I have reviewed the issues raised in your letter of February 6, 1996 with Ms . Cohen and it is her belief that her participation in the hearing of this petition is not a conflict of interest . I agree with that position and Ms. Cohen is willing to explain her decision at the next Board of Appeals hearing. Sincerely, Stephen C. Touchette Chairman, Board of Appeal SCT: scm cc: Robert A. Ledoux, Esq. George W. Atkins III , Esq. CO M CITY OF SALEM, MASSACHUSETTS NEIL J. HARRINGTON MAYOR February 21, 1996 Nina V. Cohen, Esq. 22 Chestnut Street Salem, Massachusetts Re: Petetion regarding 376 Essex Street Dear Ms . Cohen: In accordance with M.G.L. 268A, Section 19 (b) (1) , I have spoken with you regarding the nature and circumstances of the above referenced petition, and I have determined that any financial interest you may have as a homeowner on Chestnut Steet is not so substantial as to be likely to affect the integrity of the services which the municipality may expect of you as a member of the Board of Appeal . Very truly yours, rl Za NeilJ. ring on Mayor NJH\smc SALEM CITY HALL • 93 WASHINGTON STREET . SALEM, MASSACHUSETTS 01970 • 508/745-9595 • FAX 508/744-9327 (Imeym &Jospe March 13, 1996 Mr. Stephen Touchette Chairman Salem Zoning Appeals Board One Salem Green Salem, Massachusetts 01970 Dear Mr. Touchette: ` I am writing to you becaus6I am not goinggto be able to attend the Zoning Board of Appeals' meetingg,on.Wednesday,_March ZU, since I will be in Florida visiting my .parents, Dr::&"Mrs.;JohmV' Cunney. I would like to go on record that I am opposed to the new owners of 376 Essex Street (my family's home for forty years) being allowed to increase professional usage and decrease residential usage of this beautiful 1895 Colonial Revival home. I was very happy to attend the January meeting and especiallyto be able to get to tour the house on January 31st, because I was able on a first-handbasisto correct the facts and misinformation that is being disseminated by Dr. Shafer and her attorneys and Attorney Serafini on Dr. Cunney's home and office usage as it was for forty years. Most of Dr. Cunney's patients arrived on foot. Dr. Cunney only used two rooms for his sole practice and the entire balance was for residential use. I hoop that you will consider the neighbors' feelings as if you were one of them (oras if you lived next door) and the fragility of a neighborhood in such a historical city as Salem. Sincerely, ohn V. Cunney, Jr J,VC.njs c+ cc: r .!-Attorney George'Atkins" "* Mr. John Casey Mr. & Mrs. O. Palmer Swecker Specialists in Permanent and Temporary Employment Three Center Plaza, Boston, Massachusetts 02108 (617) 367-6665 Fax (617) 523-6665 Qt� /A-5 cc9py '_3 F1-1 sl- CL, 3 :sz- ct, - 71 CL- CX i�"ZJQT�- cx, -kLcoLL oL-i� M,canoirl a S 'Jp�OiMniE M��v SALEM PUBLIC LIBRARY Salem, Massachusetts 01970 PATRICK J. CLOHERTY, JR., Director Stephen Touchette, Chairman Board of Appeal City of Salem, MA Dear Board Members: Trustees of the Salem Public Library, located at 370 Essex Street, wish to comment on the petition before the City of Salem Board of Appeal for the property located at 376 Essex Street. The Salem Public Library, an abutter of an abutter, is located in this R-2 zone by right as an allowed use in an R-2 zone. Each day the Salem Public Library loans on average 1,000 books to 300-400 library users from throughout the entire City, most of whom come to Essex Street by car and require on-street parking. Fortunately, most often, turnover is relatively brisk, and though parking availability is tight, few parking problems develop. Fortunately,too, most of the Library's neighbors support the Library by utilizing whenever possible whatever off-street parking is available on their own properties in order to alleviate the Library's demand on the limited on-street parking, for which we are most appreciative. The Library's on-street parking requirements further include the need for staff parking as well as space-for school buses coming to the Library from both public and private schools a number of times a week. Trustees of the Library are concerned that should 376 Essex Street, and perhaps more homes in this neighborhood in the future, receive a Special Permit to allow a use that potentially increases demand for on-street parking by health staff and patients,Library users from throughout the City might well be frustrated in their attempts to use our services. We request that you weigh heavily in your decision on this petition the need for the Library, as an allowed use in an R-2 zone, to be accessible to citizens without difficulty. Sincerely, Patrick J. Clo rty, Jr. Library Director Jan. 18 FOR THE TRUSTEES 1996 �. C= � ca m +-m Jr� s O i a -^ca rn sin LC3 ...q N O" 1101, iCL ��ry�rrwx� JAN-24-1996 1546 FROM ARROWSTREET TO 15087445918 P.01 24 January 1996 - Mr.Stephen Touchette Chau,Zoning Board of Appeals City of Salem 93 Washington Street Salem,MA 01970 Re: 374 Essex Street Dear Mr.Touchefte, I am writing in support of the petition to revoke the Building Permit issued for the conversion of 374 Essex Street into Medical Officcs.It is clear from the copies of the plans circulated by Historical Salem,Inc.,that the use of the house will be changed ftotn a residence with an accessory office to Medical Offices,It seems clear that this type of commercial use is against current Zoning regulations and will have a serious impact on the surrounding residential neighborhood. 1 urge the Board of Appeals to vote to support the petition of the surrounding neighborhood to revoke the current Building Permit and require the owners of the property to obtain a Special Permit prior to proceeding.It is important for the protection of our residential neighborhoods that established procedures for Zoning enforcement be followed by the City- Yours truly, Laurence Spang,Architect 15 Carlton Street Salem,MA 01970 TOTAL P.01 i c ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION November 14, 1995 We, the undersigned, support the Essex Street Neighborhood Association in strongly opgosing the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. I� NAME ADDRESS wI 3 Sett G , • I ESSEX STREET NEIGHBORHOOD HOMEOWNERS'ASSO IATION November 14. 1995 we, the undersigned, support the Essex Street Neighborhood Association in strongly opposing the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. we urge the Center to abandon its conversion. ADDRESS 4, tovf 3 o Folmort r`' f +u3roea�r�ue snceh �,�a L 1 � S s4teyl C)5 �� u �( j�i� � s ESSEX STREET NEIGHBORHOOD HOMEOWNERS'ASSOCIATION November 14. 1995 We, the undersigned, support the Essex Street Neighborhood Association in strongly opposing the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. LIQ ADDRESS ;(� Lt's^ � umi i t C> J li }✓j i ✓ 1./ 07 k E 4 . c�s7aIV 02-J6e Lt�qa Mau n rVe_16u),J / Y /CAP-1 cS71 Z13 2LAZ=� � JP_&kt(L( Ae ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION November 14,1995 We, the undersigned, support the Essex Street Neighborhood Association in strongly o"osing the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. ADDRESS 7G L g S,—/ Ell 4' �� ���� l� eat r r_ Lam y 5 EjOJ, ��. /1—YL JLIL tPt_ 3� ✓^.S��nrf/e� HJT .. (' ct- ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION November 14, 1995 we, the undersigned, support the Essex Street Neighborhood Association in strongly oBgosing the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. ADDRESS) �.+a.ic.-- +�►t-- �O o2 G./lu.A.r-vrg�m �.u.s�-t.c- , , �.f-. 41 62- WIP 5 P, /. Via R\C c llk V\ 1.4 1 4 � _ AAAA -7 6 �� � ,�- ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION November 14. 1995 We, the undersigned, support the Essex Street Neighborhood Association in strongly opposing the North Shore Medical Centerl.s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. NAME ADDRESS / ' 30° y �SSf'k / S� CAL, 17o1,uS� i �� 15 � ��n��6 ��F Jd&44 ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION \� November 14,1995 We, the undersigned, support the Essex Street Neighborhood Association in strongly ogposing the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. �NADDRESS L C J4tcU_ 361 �5s<,c Ljc( zq Swlcm Amos �Dcris 14 la,�nr�- �f U dtJ!o nj e�,i 1STi / ` A 'JOA — OPA `�' AL I. ; ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION November 14, 1995 We, the undersigned, support the Essex Street Neighborhood Association in strongly onoosina the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. NAME./ ADDRESS+' oAn ayPVNCSC4)1�'S- 5alen, Mass o�IQ) Ko rA :� v3c� rAc '� RT���c� S ,, 1 4 .©��1J c�) ^ P ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION November14. 1995 6 We, the undersigned, support the Essex Street Neighborhood Association in strongly opposing the North Shore Medical Center's conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. NAME ADDRESS 14 ! G 5 �r+yuiew ��e Salem . ® tea, A446- s+ I o /3/ .514 t3 RoI6-aI St- Su len, Pew %4P01, � ck- ow 5 P-i sic O --sem n S r ESSEX STREET NEIGHBORHOOD HOMEOWNER ' ASSOCIATION November 14. 1995 We, the undersigned,. support the Essex Street Neighborhood Association in strongly opposing the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. NAME ADDRESS ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION November 14. 1995 We, the undersigned, support the Essex Street Neighborhood Association in strongly opgosina the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. NA/ME 1 ADDRESS lea, � Z 0/90 i2 Uncle sfi $1�202jSAlen-.� rrA r ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION November 14. 1995 We, the undersigned, support the Essex Street Neighborhood,-'..,M Association in strongly opposing the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. 'r E CRESS 74 4 - a d5 � f V fib. Lv �2 - 1Ave- ,c�7 Cats /5-Z V4 Pal 00AAA ESSEX STREET NEIGHBORHOOD HOMEOWN RS' ASSOCIATION November 14.1995 We, the undersigned, support the Essex Street Neighborhood Association in strongly ogposina the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. ITS ADDRESS o � s Jz- ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION November 14. 1995 we, the undersigned, support the Essex Street Neighborhood Association in strongly opposing the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. we urge the Center to abandon its conversion. ADDRESS �tuc G rviL-caVrrrs sr sa 0 j ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION November 14, 1995 We, the undersigned, support the Essex Street Neighborhood Association in strongly ooAosina the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. NAME ADDRESS -37 �( � 2,.r. �` ne 37( f35ex ' �s ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION November 14, 1995 We, the undersigned, support the Essex Street Neighborhood Association in strongly opposing the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. ADDRESS 16 ` -S7c S � 1 -9 pm� " ate Lt /k14 3�6 �sse� sit S�I� PAW &vwu NabW rI/I bLIT Si fern. ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION November 14, 1995 we, the undersigned, support the Essex Street Neighborhood Association in strongly og op sing the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. we urge the Center to abandon its conversion. ISE ADDRESS ani �ssEx S4 _ �8 Q 4 ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION November 14. 1995 we, the undersigned, support the Essex Street Neighborhood Association in strongly opposing the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. IIS ADDRESS � 70 fir-- , � lewe� �7 /�/�r�l�e..� SAF. �l-•^ — a CIPNA ST R iii 4 w \ �.J ESSEX STREET NEIGHBORHOOD HOMEOWNERS' ASSOCIATION November 14.1995 We, the undersigned, support the Essex Street Neighborhood Association in strongly opposing the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. ADDRESS E V I Sr J Cit ('f. &A �1cuPAW3�sP,P ,QpG� YYl ► 31 byiCrC;�- — SCS Iem, -,k�4 a, f&W R. 2 M 3 3�.,g 5f— sr. Q� Y ESSEX STREET NEIGHBORHOOD HOMEOWNERS'ASSOCIATION November 14.1995 We, the undersigned, support the Essex Street Neighborhood Association in strongly opposing the North Shore Medical Center' s conversion of the home at 376 Essex Street into a multi-physician clinic. We urge the Center to abandon its conversion. NAME ADDRESS .S S J C�itg of �ttlem, ttssttrl�usptts Public Propertp Department �nnvecS' iguildi ng department Mne Salem (6reen 508-735-9595 Cxt. 380 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer November 21 , 1995 City of Salem Solicitor Attorney LeDoux Federal Street Salem, Mass . 01970 RE: 376 Essex Street Dear Attorney LeDoux: I realize that you are in receipt of the material I have received from Attorney Joseph Correnti , who is with Serafini , Serafini and Darling, concerning the above mentioned property. I am at this time requesting your legal opinion as to the use of the property located at 376 Essex Street . It is my opinion that the legal use is a nonconforming mixed use of residential and Doctor ' s Office .. This was the legal use according to the 1925 City of Salem Zoning Ordinance. In 1955 our zoning changed and Section 12 of the 1955 City of Salem Zoning Ordinance reads as follows : Non-conforming buildings , structures and uses . A. Any lawful building or structure or premises or part thereof existing at the time of the adoption of this ordinance or any amendment thereof may be continued although such building, structure or use does not conform to the provision thereof. In 1965 the City of Salem Zoning Ordinance were again changed and I refer you to Section 8-3 of the Zoning Ordinance which reads ; Section 8-3 Nonconforming use of Land- Where use of land exist that is made no longer permissible under the terms of this ordinance or amendment , such use may be continued so long as it remains otherwise lawful , subject to the following provisions ; 1 . Such nonconforming use shall not be enlarged, increased or extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this ordinance . 3 . If any nonconforming use of land is discontinued for any reason for a period of twelve ( 12 ) consecutive months , any subsequent use of such land shall conform to the regulations specified by this ordinance for the district in which such land is located . This property has shown a continued use as a residential unit and a Doctors office and per zoning may continue in my opinion. Now I refer you to Section 8-5 of the 1965 zoning ordinance which reads ; Section 8-5 Nonconforming use of structure . If a use of a structure or a structure and premises in combination exist that would not be allowed in the district under the terms of this ordinance or amendment, the use may continue as long as it remains otherwise lawful , subject to the following provision; ( 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. I do not feel the density regulations are being changed in any way, and the property does have adequate parking for the use of a dwelling unit in a doctors office . Should the amount of allowed doctors on premises be subject the allowed area of parking on premises? Should the allowed doctors office , be allowed an associate to practice on premises , and if so how many? This office will not issued an occupancy permit at this location until a legal determination has been received by your office . Thank you in advance for your anticipated cooperation in this matter . Sincerely, Leo E . Tremblay Zoning Enforceme( Officer LET: scm cc : David Shea Joseph Correnti Councillor Harvey, Ward 2 Jane Stirgwold Stephen Touchette Len Femino Titu of 'V$tt1Em, massar4usetts Public Propertp i9epartment Nuilbing Department (One t3nlem (6reen 500-745-9595 Ext. 300 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer November 21 , 1995 Joseph Correnti 63 Federal Street Salem, Mass . 01970 RE : 376 Essex Street Dear Attorney Correnti : I have received your letter and additional material concerning 376 Essex Street and must inform you that I have requested from the City of Salem Solicitor a legal opinion. Until I have received such, I feel under the circumstances that I can not issued an occupancy permit for the use of the property for a dwelling unit and two doctors at this time, or until I have a legal interperta -tion of the City of Salem Zoning Ordinances that apply to this property by the City of Salem Solicitor . Sincerely, Leo E . Tremblay / Zoning Enforcement Officer LET: scm cc : Robert LeDoux David Shea Councillor Harvey Councillor Stirgwolt Stephen Touchette Len Femino Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS O 10 0 15'A L410i-5114(14PSCalT �j 14 e Mae .20.15 r7 � . C(/ . J17/� /t'f di F7 ) / ,©/7i-5 2 L cc a Sf- A at, 4 � gale � o Di9�� 4 TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. N ADDRESS 7 ijAhlb,WA �tal � k TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS f r C � M M TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS O 115A J ?� 3 l /54 -x&_ /� gin✓ ` C a �/,SC) 'J TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS S v 5 � 1 (/ Q k? T 5-1 l TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 P 41 Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD CYh_ PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS cea ✓ m �. TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 s Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS O t 00 �/ N I�`h /� �F'!. l e Sl✓h/llS��'� c Mac C.9of la �t �e � . F6ri X1100 9 'G' kG k LIZI 1 , Z&Itl 0116 TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 w J Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision- from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. N ADDRESS �tl del l(�i USA- ( A LO//L /I TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 'r Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS &'Lo"O l - a oiyaC / e M a,CSrsgnr 14 Fl Iz IVY 4G6t 2i LL a ��oL S ���1 7r G/9Ga v Iowa TIS TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support -a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS I�'(i �Ze7�'1Q S s F G. TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 s Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 r T Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS O 100 t6dANO 112A J 'lam' or;vs -1Q `dGIZ 2 LL a 6r r oL TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the-undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. N ADDRESS 7 ij L'/ .1 kiblkuA u S � i (/ TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY tlG-�r 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 PRACTICE LIMITED TO INTERNAL MEDICINE BY APPOINTMENT SCOTT E. KERNS, M.D. 116 R HIGHLAND AVENUE SALEM, MASSACHUSETTS 01970 TEL: 508-745-3499 FAx: 508-741-8625 February 15 , 1996 As a medical colleague , Iam writing a letter of reference for Dr . Beverly Shafer . Dr . Shafer provides exceptionally skillfull surgical care for many of our patients . She responds urgently to situations of tissue loss ( trauma, burns , cancer . vascular and pressure ulcers) as well as multiple other conditions . Our patients are uniformly pleased with her treatment and in multiple instances she has achieved healing and resolution where other surgeons and practitioners have failed . She is held in high esteem by my patients and myself . She is a very hard worker . She is often operating while we are sleeping . Her patients ' needs take precedent over her own. Beverly is a quiet , sensitive person . She would not allow herself to be a disturbance or intrusive in any way . If she per- ceived that to be the case , she would correct it . Dr . Shafer is a distinct asset to our medical center and community. Sincerely , Scott E .Kerns M. D . r. v Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 February 20, 1996 Mr. Stephen Touchette Members of the Board Board of Appeal One Salem Green Salem, MA 01970 Dear Members of the Board: It was apparent to me during the Appeal Board tour of 376 Essex Street on January 31, 1996, that misinformation about the intended use of the premises persists. This letter is written, therefore, to clarify my intentions and those of the trust in whose name the property was purchased. When I first saw the home over a year ago, I fell in love with its beauty and historic qualities. I have spent over a year contemplating, designing and completing changes within the residence to integrate my home and office. As you may know, I have an extensive back ground in art which preceded my career in medicine. With the love of color, texture and form, I have spent hours refurbishing the property. No structural changes have been made to the home. In no way have we altered, defaced, or diminished the historic features or details of the inside of the home and have worked diligently to preserve and enhance them instead. Other than repair and restoration of the exterior, replacing and expanding the electrical, plumbing, and air conditioning systems, refreshing paint, wallpaper, and floors, the only changes have been partitioning the 1950 ' s family room to include a required handicap bathroom and two exam rooms. The handicap ramp was constructed to satisfy requirements of State and Federal Handicapped Access Laws. The kitchen, parlors, previous doctor's office, and exam rooms are unchanged except for re-painting and refreshing. The second and third floors are entirely unchanged except for paint and replacement of worn flooring and lighting fixtures. I share the neighbors ' concerns and reverence of the historical merit and beauty of the district; I am already a neighbor participating in Salem; and am cooperative and conciliatory in regards to the present conflict. It is my hope that the intentions I had in December of 1994, when I first saw the home at 376 Essex Street, intentions unchanged through the present, are heard and considered. TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 Mr. Stephen Touchette Page 2 The property at 376 Essex Street was purchased in trust for my benefit by North Shore Medical Center in an unprecedented and unusual circumstance: unable to afford the property at the time of purchase and unable to find other equivalent space that suited my needs for residence and office, North Shore Medical Center helped me in transition by purchasing the property with the option for me to purchase. I am not an employee of North Shore Medical Center. I work at other hospitals on the North Shore and believe that I provide a service not only to the citizens of Salem, but to others on the North Shore who are unable to find similar services outside of Boston. The proposed use of a portion of the building as a medical office is only as necessary to accommodate a modern residence/office practice, as compared to one conducted in Dr. Cunney' s day. However, glaring errors exist in the floor plans for both the existing uses 1941 - 1995 and proposed plans for 1995. First, the 1941 floor plan fails to show the exam room and attached two closets as rooms used for medical purposes; Dr. Cunney' s son during the building tour confirmed use of the "living room" as Dr. Cunney' s office. Half of the first floor was used for medical offices, not two rooms as alleged, and portions of the basement were used for files. It is unfortunate that the first set of building plans mislabeled certain rooms making the office use more extensive than I 'd ever intended. This has been addressed by the "as built" floor plans submitted in January of 1996, which accurately reflect my proposed uses of the residence. It was never my intention to maintain four medical offices on the second floor. Only one room, #206, is designated for medical purposes and this is for the office manager. Rooms 210 and 212 comprise the master bedroom suite with a library, #214. Rooms #209, 204, and 203 are sitting rooms. No patients will need or will be permitted entry to the second floor. All medical care will be conducted on the ground floor; this has always been the plan and intention. Rooms #114, 102, 103, and 104 are furnished to allow use in the evenings for kitchen, entertaining, and personal use. Based upon reference to the erroneously labeled floor plans, conjecture about proposed use has perpetuated rumors that are false. There will not be four or five doctors, but only myself and my part time employee, Dr. Sasmor. We have no plans for expanding the medical practice to hire other physicians or surgeons. There will be no dormitory for interns and residents and there will be no teaching of medical residents on the premises. There is no operating room planned, only a procedure room which will be used as a primary exam room and for occasional minor surgical procedures such as the removal of moles and repair of lacerations. This will not be a clinic, but a medical Mr. Stephen Touchette Page 3 office which comfortably accommodates my staff and me. I am moving across the street to a larger property where I can live, offer my family and friends respite, and where I can work. The perceived public usage of the property remains incorrect: whereas Dr. Cunney, by report, routinely saw up to sixty patients a day five to six days a week, we will see an average of half that many patients a day, during only three days a week. Rarely, if ever, will Dr. Sasmor, my associate, and I see patients on the same day. I see patients two days a week; she sees patients once a week. Patients are seen by appointment only. There are no "drop-ins" and emergencies are seen at the hospital only. The other days of the work week we are in hospital operating rooms. When we are not at the office, usually two and occasionally three staff members will be at work; patients are on the premises during those days. At least three nights of the work week I work late evening hours. Those evenings and many weekends will be spent at the home for personal use. I see my proposed use of the property at 376 Essex Street as one of down-zoning with less intensity of public use and traffic than in the past. I am moving across the street from an office where I have enjoyed compatible and unobtrusive presence, where no complaints have been raised, and where I have enjoyed a favorable reputation. I am also moving to a restored and historic home where I intend to spend many years of my life. Many of our neighbors know that the lights in my office are on late into the evenings when I attend to paperwork, medical reading, and research and am active in the medical community locally, on a state level, and on a national level. A fair amount of time is spent traveling pursuing those involvements. Also I very much enjoy entertaining. I am one of five children, originally from New Mexico, and my siblings and parents frequently visit. I am involved with travel and medicine in the Third World which engenders international exchange and therefore anticipate great use of my home for family and friends. I will register to vote in Salem, and once situated, look forward to a continued and expanded involvement in the community and neighborhood. It is my hope that after reviewing this statement of intentions and the legal issues surrounding zoning, the Board will have the more comprehensive understanding of my hopes and aspirations. Respectfully submitted, Beverly M. Shafer, MD n 26 Chestnut Street Salem, MA 01970 February 15, 1996 Mr. Steven Touchette Chairman, Zoning Board of Appeal One Salem Green Salem, MA 01970 RE: 376 Essex Street, Salem Dear Mr. Chairman: My name is Arthur Kavanaugh, and I have been a practicing physician in Salem, Massachusetts and at Salem Hospital for the past thirty-three years. I was born October 19, 1928, and my mother was attended by Dr. Philip Finnegan, whose office was located in the Historic District of the Salem Common, and he rendered her prenatal care and all services that were necessary at that time for the expectant mother. I am indebted to Dr. Philip Finnegan for his services to my family and for providing such a wonderful site for delivery of health care and for encouraging his daughter, Mrs. Grace Mattson, to be loyal to the community and she has been and has served for many, many years as a volunteer at Salem Hospital. My mother and father were at that time living at 9 Fowler Street in Salem, Massachusetts, which was an apartment house owned by the Cunney family of which John V. Cunney, M.D. was one of the sons of that distinguished family. In 1933, my family moved to 14 May Street, Salem, Massachusetts, and the family residence is still at that site and still owned and occupied by the Kavanaugh family. In 1964, I relocated my family from 14 May Street to 26 Chestnut Street and began the practice of obstetrics and gynecology. I am writing to this distinguished Board because I wish to be heard with regard to the participation of Salem Hospital and Beverly M. Shafer, M.D. in their joint effort to maintain quality medical care in the Salem area. Mr. Steven Touchette February 15, 1996 Page 2 Both Dr. Shafer and Salem Hospital recognize that various health settings are traditional in Essex County and in Salem, and Dr. Shafer perceives the value for the patient and herself in a traditional doctor patient relationship defined by an office in the neighborhood. Dr. Shafer is a very competent physician, a caring person and an important member of the staff at Salem Hospital. I trained in obstetrics and gynecology at Yale New Haven Medical Center. Our program at that time was three to four years long. The plastic surgeon's program was seven or eight years long. Little wonder that the first kidney transplant in this country was done by a plastic surgeon, Joseph Burrey, M.D. of Harvard and Brigham and Womens Hospital. It is little wonder that burn cases, trauma cases, many different types of cases, all at various times need the skills of the plastic surgeon. The plastic surgeon works side by side in the emergency room area with a team; in the operating room as the primary surgeon or a member of a surgical team; nights and weekends when on call, and believe me they develop bags under their eyes in residency like the rest of us, only they know how to fix up baggy eyes as well. I wish to allude to the tradition of the medical doctor in the neighborhood throughout this area, starting with Marblehead and Dr. Tom Barrett, Dr. Stan Hopkins, Dr. William Haley, and Dr. Ben Stoddard, who are just a few who practiced in the Marblehead neighborhoods and were on the staff of Salem Hospital. In Swampscott, Dr. Murray Lawrence; and in Salem on Lafayette Street, Dr. Kaplan, Dr. Girard Michaud, Dr. Cote, and Dr. Rene Desjardains and many others practiced there. Also in Salem, at the Common were Dr. Frank Healey, Dr. Philip Finnegan, Dr. Martin Fields and Dr. DeWolf Clark who conducted their neighborhood practices here. In Salem on Summer Street, Dr. James Ryan and Dr. Ralph Haywood; and on North Street in Salem, Dr. Arthur O'Neil; and on Chestnut Street in Salem, Dr. Stuart Gardner, Dr. Frank Morse, Jr. , Dr. Gregory Alexander, Dr. Richard Alexander, Dr. Hardy Phipman, Dr. Walter Phipman, Dr. Charles Micholardos, Dr. Warren Babbs, Dr. Murray Cohen, Dr. Joseph Rodges, Dr. Arthur Kavanaugh, Dr. Harry Freeman and many others on Chestnut Street; and on upper Essex Street, Dr. Philip Hennessey, Dr. Philip Kilfoil, Dr. Paul Hinchey, Dr. Alan Freeberg, Dr. Paul O'Brien, Dr. Benjamin Conwell, Dr. Albert Little, Dr. John V. Cunney, Dr. Richard Doyle and several others; and on May Street, Dr. Barry Filip, and on and on. The physician i� Mr. Steven Touchette February 15, 1996 Page 3 in the neighborhood is a tradition in Salem. I should also mention Dr. Harry Laud, the distinguished pediatrician who was on upper Essex Street, and Dr. John B. Ballou, who maintained an office on Essex Street as well as in the Medical Office Building. It should also be mentioned that this location at 376 Essex Street that Dr. John V. Cunney practiced from for so many years was succeeded by a medical practice of the married couple Dr. and Mrs. Eric Reynes, both of whom were very well trained physicians and who carried on a successful practice at that location. They were succeeded there by a psychiatrist and his wife who was also involved in social work and the practice of medicine. I know that Dr. Shafer's motive for practicing at 376 Essex Street is the same as the above physicians and is best exemplified by her choice of Dr. Paul Hinchey's home for her current office practice. Dr. Shafer recognizes that the site location is good for the patient and for the physician and is an appropriate setting for the practice of medicine as evidenced by the above list of physicians. I have spent most of my hospital life in operating rooms or delivery rooms, and yet I have saved as many lives or more from premature death' or disability by practicing good solid office medicine. If the proper setting helps you focus on the task, then by all means obtain the setting. I know of no neighborhood that has suffered a loss of dignity or value because of the neighborhood practice of medicine. Personally, my taxes continue to climb consistent with the value. Dr. Shafer and her colleague Dr. Sasmor will not practice at the same time at 376 Essex Street, only one M.D. will be there at one time. As I recall that large parking area in the rear of 376 Essex, there should be room enough for eight cars. That will accommodate a single physician's patient load quite easily. A word about my own house at 26 Chestnut Street, Salem. The last three occupants of this house have been Dr. James Simpson, former President of the Salem Hospital medical staff; Dr. Richard Thompson, former Chief of Surgery at Salem Hospital; and myself, Associate Chief of obstetrics and Gynecology at Salem Hospital for about fifteen years. We all practiced from this great house, and our patients and Salem Hospital were benefactors of this type of focused practice. Mr. Steven Touchette February 15, 1996 Page 4 Salem Hospital recognizes the quality issue associated with neighborhood medical practice. If they can match an outstanding medical service with a physician with neighborhood values, it is a synergetic match for everybody. All over the State and as far away as Amherst and North Hampton and in Worcester and all over Cape Cod and Lexington and Arlington and Belmont and Everett and the South and North Shores, medicine is practiced in the neighborhood. Surgeons, obstetricians, gynecologists, internists, general practitioners, pediatricians, practice there without prejudice. Physicians are controlled at the Federal and State and local levels by many boards and powers, and we comply, otherwise we could not serve the people. We are asking to serve the people again at 376 Essex Street as John Cunney did so well for so many years. He was as focused a physician as one ever met. I think his office site provided some of that synergy. I believe Dr. Shafer would be a credit to the neighborhood, as she is now, and Charter Trust has added to the charm of this great house for the neighborhood and at the same time has made it possible for a physician to function at her very best to take care of her patients. I would implore this Board of Appeal to consider this heritage, to consider this standard of the practice of medicine in the neighborhood that has worked so very well for the community. The practice of medicine in the neighborhood is still alive and well, and it not only synergizes the practice of excellent medicine, but it adds to community value and indeed is a community asset not be thrown away lightly. Thank you very much. Sincerely yours, \ 61 J �J Arthur J. Kavanaugh 1/kavanaugh.1tr 1141r_ it -Irving Ingraham, M.D.' b' { 115 Federal'St. Salem, MA: y • f L Y r _ �o Y � '.1 February 21 , 1996 Members of the Board of AppealX One Salern Green Salem, 'MA 01970 .Dear Members of the -Board of Appeal ' v { I am happy to write, as a neighbor, colleague andfriend, in .an effort to "7'%, assist Dr. Beverly Shafer ;in resolution of issues' '`s 'mounding, her- new office at 376 .Essex Street. _ . +ac< �g [ : ' . A �.q:. 1 a �3�F 41*"i1f;F;• +� While I cannot- address all aspects address her 2pr6jecty, I do .feels=. certai`}n that, as". is so often the case, miscommunication is the root -of:many of the difficulties., I . hope and•suggest,that the Board assist'Dr.'lShafer'in',tommunicating,and acting `upon her sincere concern for the.:welfare 'of"her neighbors and neighborhood. Her attitude is not at;all-arrogant nor.unconcerned,' and she ' - " is eager to discuss appropriate compromises and .lassurances"wth those • who are interested. , I am afraicl that feeling has run so high that the;'people are not.'hearing each other, a situation which is'in-.no one's 'interest. I do hope that'the BoardWill be a promoter of renewed communication. Dr.°'Shafer is'ay ry' highly regarded member of our, local medical- community,' and 1''believe she will :be', an ,equally- ,.valuable member of our resideritial community. M ' x Thank you" for your consideration. t Sm rely, p z r F .. � ., �y/////Jj/J(}// -d " ._ �z t •" _a. 1 a <4 J®^. .. , IrvingIngraham a r q _ a bmf s. A :r l Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS O t �yIr . X rL" JtkPll (71� TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1 200 FAX: 508/744-9433 1 Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS S.� s r'— G, tAAiU TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433 Beverly M. Shafer, MD, FACS, PC Michele T. Sasmor, MD lh2 m_ PLASTIC AND RECONSTRUCTIVE SURGERY 355 ESSEX STREET SALEM, MASSACHUSETTS 01970 We the undersigned support a favorable decision from the Board of Appeals on behalf of Dr. Beverly M. Shafer. She should be allowed to assume residence and her place of practice at 376 Essex Street, Salem, where she can continue, as surgeon and friend, to contribute to our community. NAME ADDRESS G QC CNN TELEPHONE: 508/741-2611 SALEM HOSPITAL: 508/741-1200 FAX: 508/744-9433