162 FEDERAL STREET - ZBA Jura-
o D1 CITY OF SALEM9 MASSACHUSETTS
BOARD OF APPEAL
120 WASHINGTON STREET, 3RD FLOOR
SALEM, MASSACHUSETTS 0 1970
TELEPHONE: 978-745-9595
FAX: 978-740-9846
KIMBERLEY DRISCOLL Z009 SEP 30 -A' 8: 0-9
MAYOR
CITY CLER� SALD-I.
September 28, 2009
Decision
aty of Salem Zoning Board of Appeals
Petition of WILLIAM WHARFF seeking Variances from minimum lot area per
dwelling unit, and Special Permits to change one nonconforming use to another and
to increase existing side yard setback nonconformity, to accommodate conversion of
an office building to nine (9) residential condominium units, on the property located
at 162 FEDERAL STREET, Salem,MA, in the Residential Two-Family Zoning
District(112).
Petitioner seeks Variances pursuant to the Salem Zoning Ordinance, §64, Table 1:
Residential Density Regulations (recodified on September 10,2009 as §4.1.1: Table of
Dimensional Requirements). Petitioner also seeks Special Pernlits pursuant to 55-30),
Extension of Nonconformity(recodified on September 10, 2009 as §3.3.3,Nonconforming
Structures), and §8-6,Board of Appeals, Granting Special Permits (recodified on September
10, 2009 as §9.4,Special Perinits).
Statements of fact:
1. Attorney Scott Grover represented the petitioner,William Wharff,who has the
property under agreement subject to his abilityto convert it to a residential use. The
property is owned by Health &Education Services, Inc.
2. In a petition dated March 25,2009,the petitioner requested a Variance and Special
Permits to convert the existing office building to nine (9) residential units.
3. A public heating on the above mentioned Petition was opened on April 15, 2009,
pursuant to Mass General Law Ch. 40A, §11.
4. At the April 15,2009 meeting,Attorney Grover stated that a leaking oil tank exists
on the property, and cleanup would be expensive;he also stated that the property is
currently being remediated.
5. In a statement submitted with the application,Attorney Grover also noted that the
building at 162 Federal Street is substantially larger than any other residential
structure in the area;that conversion of it from a commercial to residential use
would require a complete reconstruction of the interior of the budding; and that such
conversion would be costly enough to require a certain level of density to support
costs of rehabilitation.
2
6. At the April 15,2009 meeting,AttomeyJohn Carr,7 River Street,representing the
Federal Street Neighborhood Association,opposed the project, citing concerns
about density, and stating that the change in use from a mental health center with
daily business hours to a residential building would increase the intensity of use.
7. At the April 15, 2009 meeting, other residents spoke in opposition to the project,
citing similar concerns about density, intensity of use, and the fact that the
developer's proposal appeared to have measured the square footage of living space
differently from the City Assessor's office.
8. At the April 15, 2009 meeting,Ward 2 Councillor Nfichael Sosnowski, 17 Gollins
Street,spoke 'in opposition to the project at its current density,stating that units of
the size proposed would not be in keeping with the character with the
neighborhood.
9. At the April 15, 2009 meeting,Board members expressed concerns about the
density,the amount of space available for parking, and whether the proposed use
would be less intense than the current use.
10. The hearing was continued to August 19,2009. At the August 19,2009 meeting,
Attorney Grover stated that in response to meetings with the neighbors,the plans
had been revised to show a reduction from nine (9) proposed units to eight (8), an
increase in the proposed parking spaces from fifteen (15) to eighteen (18), and
additional green space. Approximately 10,000 square feet of additional land area was
also shown on the plan,the result of an agreement with the Archdiocese of Boston
to acquire part of their property at 150 Federal Street.
11. At the August 19, 2009 meeting,Attorney Grover stated that the relief now
requested was for lot area per dwelling unit of 3,200 square feet,rather than the
originally requested 1,166 square feet per dwelling unit, and that this was the only
dimensional relief needed, as the previously proposed side entrance had been
eliminated.
12. At the August 19, 2009 meeting,AttomeyJohn Carr, representing the Federal Street
Neighborhood Association,stated that while the project was progressing in a
favorable direction, not all of the neighbors were available to view the revised plans,
and so they could not yet support the petition. He requested that, if agreeable to
Attorney Grover,the item be continued to September 16, 2009, by which time the
neighborhood would have time to review the new plans, and they would then be
able to solidly support the project. The Board subsequently voted to continue the
matter to September 16, 2009.
13. At the September 16, 2009 meeting,Attorney Grover presented the revised plans.
At the meeting,Ken Wallace, 172 Federal Street, stated his opposition to the plans
due to concerns that prospective residents would park on Federal Street. Attorney
John Carr,continuing to represent the Federal Street Neighborhood Association,
stated that he was pleased with the changes made to the plans, but wished to see the
number of units reduced further to seven (7).
3
14. The pubic hearing was closed on September 16,2009,with the following Zoning
Board of Appeals members present: Rick Dionne (chairing the meeting),Annie
Harris,Beth Debski,Bonnie Belair (alternate), and Jinuny Tsitsinos (alternate).
15. At its meeting on September 16, 2009,the Board of Appeals voted five (5) in favor
and none (0) opposed to grant a Variance under§64, Table I: Residential Density
Regulations (recodified on September 10,2009 as §4.1.1: Table of Dimensional
Requirements).
The Board of Appeal, after careful consideration of the evidence presented at the public
hearing, and after thorough review of the plans and petition submitted, makes the following
findings:
1. Special conditions and circumstances exist affecting the parcel or building,Which do
not generally affect other land or buildings in the same district.
2. Desirable relief rnay be granted without substantial detriment to the public good and
without nullifying or substantially derogating from the intent or purpose of the
zoning ordinance,as the proposed project is in harmony with the residential
character of the neighborhood,particularly with the reduction of density and
addition of parking and green space to the original proposal.
3. Literal enforcement of the provisions of this ordinance would involve substantial
hardship,financial or otherwise,to the appellant, as costs of the budding's
rehabilitation in the current economic climate would be considerable.
4. The applicant may vary the ternis of the Residential Two-Farnily Zoning District to
construct the proposed addition,which is consistent with the intent and purpose of
the City of Salem Zoning Ordinance.
5. In permitting such change,the Board of Appeals requires certain appropriate
conditions and safeguards as noted below.
On the basis of the above findings of fact and all evidence presented at the public hearing
including, but not limited to,the Plans,Documents and testimony,the Zonig Board of
Appeals concludes:
1. To allow for the redevelopment of the office building on the property located at 162
Federal Street into eight (8) residential units as per the plans submitted,including the
plan titled"Parking Sketch Concept Plan for a Proposed Residential Development at
162 Federal Street,Salem,Massachusetts," prepared by Patrowicz Land
Development Engineering and North Shore Survey Corporation,dated August 4,
2009,the requested Variance from lot area per dwelling unit for the Residential Two-
Family Zone is granted.
In consideration of the above,the Salem Board of Appeals voted,five (5) in favor(Dionne,
Belair,Harris,Debski and Tsitsinos) and none (0) opposed,to grant petitioner's requests for
a Variance subject to the following terms, conditions, and safeguards:
4
1. Petitioner shall comply with all city and state statutes, ordinances, codes and
regulations.
2. All construction shall be done as per the plans and dimensions submitted to and
approved by the Building Commissioner.
3. All requirements of the Salem Fire Department relative to smoke and fire safety shall
be strictly adhered to.
4. Petitioner shall obtain a building permit prior to beginning any construction.
5. Exterior finishes of die new construction shall be in harmony with the existing
structure.
6. A Certificate of Occupancy is to be obtained.
7. Petitioner is to obtain approval from any City Board or Commission having
jurisdiction including, but not limited to,the Planning Board.
8. Uriless this Decision expressly provides otherwise, any zoning relief granted does
not empower or authorize the Petitioner to demolish or reconstruct the structure(s)
located on the subject property to an extent of more than fifty percent (50%) of its
floor area or more than fifty percent (50%) of its replacement cost at the time of
destruction. If the structure is demolished by any means to an extent of more than
fifty percent (50%) of its replacement cost or more than fifty percent (50%) of its
floor area at the time of destruction,it shall not be reconstructed except in
conformity with the provisions of the Ordinance.
9. Parking shall be as per the submitted plan dated August 4, 2009.
Richard Dionne
Salem Zoning Board of Appeals
A COPY OF TFUS DECISION HAS BEEN FILED WTH TI-M PLANNING BOARD
AND TEE CITY CLERK
Appeal from this decision, if any,shall be made pursuant to Section 17 of the Massachusetts
General Laws Chapter 40A, and shall be filed within 20 days of filing of this decision in the
office of the City Clerk Pursuant to the Massachusetts General Laws Chapter 40A, Section
11,the Variance or Special Permit granted herein shall not take effect until a copy of the
decision bearing the certificate of the City Clerk has been filed with the Essex South Registry
of Deeds.
ZONING BOARD OF APPEAL
PETMON FORM
4 CITY OF SALEM,MASSACHUSETTS
ZONING BOARD OF APPEAL
120 WASHINGTON MET,3M FLOOR
001 R6.
SALEK MASSACHUSETTS 01970
Amy Lash,Staff Planner
Thoraas St.Pierre,Building Inspector
t -619-5685/f 978-740-0404 t 978-619-5641/f 978-740-9846
978
TO THE BOARD OF APPEAL:
The Undersigned represent that he/she is/are the owners of a certain parcel of land located at:
Address: 162 Federal Street Zoning District: R-2
An application is being submitted to the Board of Appeal for the following reason(s): This statement must
describe what you propose to build,the dimensions,the zone property is in,and the zoning requirements. Example:
I am proposing to construct a I O'x I O'one story addition to my home located at 3 Salem Lane,in the R-2 Zoning
District. The Zoning Ordinance requires the minimum depth ofthe rearyardto be 30feet. The current depth ofmy
rear yard is 32feet;the proposed addition would reduce the depth ofthe rearyard to 22feet.
see attached Statement of Grounds
For this reason I am requesting:
Article VI. See. 6-4, Table 1
(K)Variance(s)from provisions of Section of the Zoning Ordinance,specifically from
Minimum Lot Area; (i.e.minimum depth of rear yard).
What is allowed is 7-500 a,g, per dwelling unit (fi?sqfl?stories? %?),and what I
am proposing is 1,666 s.f. per dwPIling unit(fi?sqft?sto;i&?%?).
Article VIII, Section 8-6
(X)A Special Permit under Section / of the Zoning Ordinance in order to change from one
nongonforming use to another and increase existing side yard set ba k
( )Appeal of the Decision of the Building Inspector(described below): nonconformity
The Current Use of the Property Is: Are the lot dimensions included on the plan?
(example: Two Family Home) office (x)Yes ( )No n/a because
The Undersigned hereby petitions the Board of Appeal to vary the terms of the Salem Zoning Ordinance and allow
the project to be constructed as per the plans submitted,as the enforcement of said Zoning By-Laws would involve
practical difficulty or unnecessary hardship to the Undersigned and relief may he granted without substantially
derogating from the intent and purpose of the Zoning Ordinance.
ZONING BOARD OF APPEAL
PETITION FORM
The following written statement has been submitted with this application:
For all Variance requests a written Statement of Hardship demonstrating the following must be attached:
a) Special conditions and circumstances that especially affect the land,building,or structure involved,
generally not affecting other lands,buildings, and structures in the same district;
b) Literal enforcement of the provisions of the Ordinance would involved substantial hardship to the
applicant; and
c) Desirable relief may be granted without substantial detriment to the public good,and without nullifying or
substantially derogating from the intent of the district or the purpose of the ordinance.
For all Special Permit requests a Statement of Grounds must be attached. An application for a special permit for
a nonconforming use or structure shall include a statement demonstrating how the proposed change shall not be
substantially more detrimental than the existing nonconforming use to the neighborhood in accordance with Art.V,
§ 5-3. Such a statement should include reference to the following criteria:
a) Social,economic,or community needs served by the proposal;
b) Traffic flow and safety,including parking and loading;
c) Adequacy of utilities and other public services;
d) Impacts on the natural environment,including drainage;
e) Neighborhood character;and
I) Potential fiscal impact,including impact on City tax base and employment.
Previous applications to the Board of Appeals involving this property have been submitted with this petition
form. The Building Commissioner can provide documentation ofprevious applications to the petitioner or his
representative.
If different than petitioner:
Petitioner: William Wharf f PropertyOwner: Health & Education Services, Inc.
Address: One, Carol Way, No. 404 Address: 131 Rantoul Street, Beverly, MA 01915
Salem, MA 01970
Telepkone: 617-767-1847 Telephone: 978-921-1292
�Mm a-AA&41�— (see consent letter attached)
Sig iature -P47T-�---!ev��/ Signature(Attached consent letter is also acceptable)
4tc Date
If different than petitioner:
A TRUE Representative: Tinti, Quinn, Grover & Frey, P.C.
ATTEST
Address: 27 Congress Street, Salem, MA 01970
Teleph e: 9781-7#�-8065
Sika�dre
I/
March 25, 2008
Date
DATE SUBMITTED TO
BOARD OF APPEALS:
CITY CLERK
This original application must befiled with the City Clerk.
STATEMENT OF GROUNDS
162 FEDERAL STREET
The Petitioner is proposing to convert the property at 162 Federal Street from its present
use as an office building to nine(9)residential condominium units. The only change to
the exterior that will be made as part of the conversion will be the construction of a new
entry on the easterly side of the building. There will be sixteen(16) off-street parking
spaces provided for occupants of the building.
The property is located in the R-2 zoning district,however, the use of the building as an
office building by the current owner, Health and Education Service, Inc. and the structure
itself are legally non-conforming pursuant to Article VEJ, Sec. 8 of the Zoning
Ordinance. The Petitioner's proposal constitutes a change in the nonconforming use and
structure which can only be accomplished with a Special Permit issued by the Board of
Appeals pursuant to Article VIII Section 8-6. The Board may grant such a Special Permit
upon a finding that the proposed changes will not be substantially detrimental to the
public good and will not nullify or substantially derogate from the intent and purpose of
the Zoning Ordinance.
The project also requires a variance from the density regulations of the Zoning
Ordinance relating to minimum lot area per dwelling. Article VI, Table I requires a lot
area of 7,500 s.f. per dwelling unit in the B-2 District. In this instance, the area of the lot
is 15,000 s.f.which results in a lot area per dwelling unit of 1,666 s.f.
The conversion of the building from the very intense use as an office building to owner
occupied housing with on-site parking will substantially lessen the impact that the use of
this property has on the surrounding neighborhood in terms of both pedestrian and
vehicular traffic, congestion and noise. Since the multifamily use is entirely consistent
and harmonious with the other uses in the area, the change to such a use will not derogate
at all from the intent and purpose of the Ordinance. The Petitioner's proposal is a
valuable opportunity to replace a less desirable use with one that is compatible with other
properties in the neighborhood. In addition, the property will be converted from non-
profit use that does not generate tax revenue to a use that will significantly contribute to
the City's tax base.
The building at 162 Federal Street is substantially larger than any other residential
structure in the area, consisting of approximately 14,000's.f. To convert it from
commercial to residential use requires a complete reconstruction of the interior of the
building. The only way to achieve the conversion of the building to residential use is
with a certain level of density to support the costs of the rehabilitation. The literal
enforcement of the requirements of the B-2 District will prevent the conversion of this
property, causing hardship to the property owner and the community. For the same
reasons set forth above, desirable relief may be granted without substantial detriment to
the public good and without nullifying or substantially derogating from the intent of the
District or the purpose of the Ordinance.
ARCHDIOCESE OF BOSTON
66 BROOKS DRIVE
BRAINTREE, MASSACHUSETTS 02184-3839
August 19, 2009
Zoning Board of Appeals
City of Salem
120 Washington Street
Salem,MA 01970
Re: Bridge Street Property
Dear Board Members:
This letter is intended to advise you that the Archdiocese of Boston has authorized William
Wharff to subrut to the Board a petition which includes a portion of the real property owned by
the Archdiocese abutting the property at 162 Federal Street Salem, Massachusetts.
Very truly yours,
James P. McDo i9eh.,
Chancellor
DD/dg
Health & Education Services, Inc.
A n�nnber 4 N,,,tb"�r I�cal&Syqm
April 2, 2009
Department of Planning and Community Development
120 Washin ton Street
9
Salem, Massachusetts 0 1910
To Whorn It May Concern:
If ealth and Educational Services, Inc, is the owner of the property at 162 Federal Street, Salem,
Massachusetts (the"Property").
This letter is to authorize William Wharff to file all necessary applications, petitions and plans to
obtain the municipal approvals to convert the Property to residential use.
Please feel ftee to contact me if you have any questions or concerns.
Ve Uly yours,
Paul O'Shea, President
POS/dlg
�urmed'�ran V'.Norlh'�'�"� WA�
RECEIM
COMMONWEALTH OF MASSACHUSETTS INsPECTIONAL sERVICES
200, OCT I P C.
ESSEX, SS. SUPERIOR COURT
CIVILACTIONNO:
KENNETH WALLACE, JOYCE WALLACE, and
ERICA UDOFF,
PLAINTIFFS
V.
WILLIAM WHARFF, and REBECCA CURRAN, BETH
DEBSKI, RICHARD DIONNE, ANNIE HARRIS, ROBIN
STEIN, BONNIE BELAIR, and JIMMY TSITSINOS,
BEING REGULAR and ALTERNATE MEMBERS OF
THE ZONING BOARD OF APPEALS OF THE CITY OF
SALEM, MASSACHUSETTS,
DEFENDANTS
COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A,SECTION 17
APPEALING THE SEPTEMBER 28,2009 DECISION OF THE SALEM ZONING
BOARD OF APPEALS CONCERNING 162 FEDERAL SALEM, MASSACHUSETTS
This is an appeal from a Decision of the Salem, Massachusetts Zoning Board of Appeals
(hereinafter"ZBA7'or"Salem ZBA"),dated September 28, 2009, and filed with the Salem City
Clerk on September 30, 2009, granting a Variance to William Wharff from the required
minimum lot area per dwelling unit at 162 Federal Street, Salem, Massachusetts 0 1970, which
property is located in an R-2 zoning district. The Plaintiffs are also appealing said Decision to
the extent that it allows Mr. Wharf to change one nonconforming use to another nonconforming
use to accommodate the conversion of a nonconforming office building at said property to eight
(8) residential units which would result in a density which is four times the maximum density of
two 2) residen7iaTi;nits permitted in an R-2 district, and would also result in a lot area per
dwelling unit of less than half of the required minimum of 7,500 sguare fee . The grounds for
this appeal are that said ZBA Decision was arbitrary, capricious, unreasonable,violated due
process, exceeded the Board's authority, was based on legally and factually untenable grounds,
and was wrong as a matter of law.
A certified copy of said September 28, 2009 Decision is attached hereto as Exhibit A.
PARTIES
Plaintiffs
1. Plaintiffs, Kenneth Wallace and Joyce Wallace, are husband and wife who own and
reside at 172 Federal Street, Salem, Massachusetts 0 1970, which property is located
within the 300-foot notice requirement of the Salem Zoning Ordinance.
2. Plaintiff, Erica Udoff, owns and resides at 155 Federal Street, Salem, Massachusetts
0 1970, which property is located within the 300-foot notice requirement of the Salem
Zoning Ordinance.
Defendants
3. Defendant, William Wharff(hereinafter"Mr. Wbarfr'), who resides at One Carol Way,
No. 404, Salem, Massachusetts 01970, has an equitable interest in 162 Federal Street,
Salem, Massachusetts 0 1970 by virtue of a purchase and sales agreement with the current
owner of the property, and is the petitioncr/beneficiary of the September 28, 2009
Decision of the Salem ZBA herewith being appealed.
4. Defendant, Rebecca Curran, who resides at 14 Clifton Avenue, Salem, Massachusetts
0 1970, is a regular member of the Salem ZBA who did not participate in the September
16, 2009 vote granting Mr. Wharff said Variance.
5. Defendant, Beth Debski, also known as Elizabeth Debski, who resides at 43 Calumet
Street, Salem, Massachusetts 0 1970, is a regular member of the Salem ZBA who voted to
grant Mr. Wbarff said Variance at the September 16, 2009 hearing of the Salem ZBA.
6. Defendant, Richard Dionne, who resides at 23 Gardner Street, Salem, Massachusetts
01970, is a regular member of the Salem ZRA who voted to grant Mr. Wharff said
Variance at the September 16, 2009 hearing of the Salem ZBA.
7. Defendant, Annie Harris, who resides at 28 Chestnut Street, Salem, Massachusetts 01970,
is a regular member of the Salem ZBA who voted to grant Mr. Wharff said Variance at
the September 16, 2009 hearing of the Salem ZBA.
8. Defendant, Robin Stein, who resides at 141 Fort Avenue, Salem, Massachusetts 0 1970, is
a regular member and the chairwoman of the Salem ZBA who did not participate in the
September 16, 2009 vote granting Mr. Wharff said Variance.
9. Defendant, Bonnie Belair, whose mailing address is P.O. Box 685, Salem, Massachusetts
0 1970 is an alternate member of the Salem ZBA who voted to grant Mr. Wharff said
Variance at the September 16, 2009 hearing of the Salem ZBA. (This is the only address
available for Ms. Belair at the office of the Salem ZBA.)
10. Defendant,Jimmy Tsitsinos, also known as James Tsitsinos, who resides at 6C Wharf
Street, Salem, Massachusetts 01970, is an alternate member of the Salem ZBA who voted
to grant Mr. Wharff said Variance at the September 16, 2009 hearing of the Salem ZBA.
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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. RECEIVED
SUPERIOR dWffTIO"Al IERVICES
CIVIL ACTION
KENNETH WALLACE, JOYCE WALLACE, and
ERICA UDOFF,
PLAINTIFFS
V.
WILLIAM WHARFF, and REBECCA CURRAN, BETH
DEBSKI, RICHARD DIONNE, ANNIE HARRIS, ROBIN
STEIN, BONNIE BELAIR, and JIMMY TSITSINOS,
BEING REGULAR and ALTERNATE MEMBERS OF
THE ZONING BOARD OF APPEALS OF THE CITY OF
SALEM, MASSACHUSETTS,
DEFENDANTS
NOTICE TO SALEM CITY CLERK OF APPEAL TO ESSEX SUPERIOR COURT
FROM SEPTEMBER 28,2009 DECISION OF SALEM ZONING BOARD OF APPEALS
CONCERNING 162 FEDERAL STREET SALEM, MASSACHUSETTS
.1, John H. Carr, Jr., attorney for the Plaintiffs in the above-entitled action, hereby give notice to
the City Clerk of the City of Salem, Massachusetts and to the Salem Zoning Board of Appeals
that said Plaintiffs have filed a civil Complaint with the Essex Superior Court appealing the
September 28, 2009 Decision of the Salem Zoning Board of Appeals relative to the petition of
William Wharff concerning 162 Federal Street, Massachusetts 01970, which property is located
in an R-2 Zoning District. Said September 28,2009 ZBA Decision was filed with the office of
the Salem City Clerk on September 30,2009.
A copy of said Complaint, filed as Essex Superior Court Civil Action No. 0
on October 19, 2009, is attached hereto.
Respectfully submitted,
Kenneth Wallace, et al,
B15 their afto ey,
October 19, 2009
John H. Carr, r., Esq.
9 North Street
Salem, MA 01 0
978-825-0060
A]I of the foregoing Plaintiffs have standing to bring this action, as all are substantially
aggrieved by the September 28, 2009 Decision of the Salem ZBA granting Mr. Wharff
said Variance, especially without explicitly granting any Special Permit(s) or other relief
required for changing one nonconforming use to another nonconforming use, and (to the
extent said Decision purports to allow said change of nonconforming use) by that
decision as well.
JURISDICTION
12. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the
Massachusetts General Laws.
13. This case is timely, as it has been filed within twenty(20) days from September 30, 2009,
which is when the September 28, 2009 Decision of the Salem ZBA was filed with the
Salem City Clerk.
PROCEDURAL HISTO RV AND FACTUAL ALLEGATIONS
14. 162 Federal Street(hereinafter"the property") is a 2-story Victorian building, with a third
story under its Mansard roof, and a smaller attic story above that, with a rear ell and a full
basement below the Federal Street grade.
15. The property is located in an R-2 zoning district, which allows for a maximum density of
two (2) residential units, and requires a"minimum lot area per dwelling unit"of 7,500
square feet.
16. The building was originally built to serve as the convent of the St. James Parish; since the
closing of the former St. James parochial school it has been used as an office building for
a private mental health practice.
17. According to the Salem Assessor's records, it contains 10,312 square feet, not including
the attic and basement levels, which are not currently used.
18. An initial public hearing on Mr. VAiarfrs petition was held before the Salem ZBA on
April 15, 2009.
19. Attorney, John H. Carr, Jr., representing the Federal Street Neighborhood Association
("FSNA"), spoke in opposition to the project, citing FSNA's concerns relative to the
density and other aspects of the proposed project, including that the proposed change in
use would increase the intensity of the existing non-conforming use of the property, and
would not be in keeping with the residential density and character of the neighborhood.
20. Attorney Carr also questioned the developer's unverified representation to the Board that
the building contains 16,359 square feet of interior space, whereas the Salem Assessor's
records indicate 10,312 square feet.
_ 3 -
21. Several other neighbors spoke in opposition to the project, citing similar concerns about
density, intensity of use, traffic, and parking, as did Ward 2 Councilor Michael
Sosnowski (in whose ward the property is located), who also stated that the size of the
proposed units would not be in keeping with the character of the neighborhood.
22. No one spoke in favor of the petition.
23. Chairman Stein offered the petitioner the choice between proceeding with an immediate
vote at the April 15, 2009 hearing, or continuing the hearing to a later date to give the
developer an opportunity to meet with the neighbors in an attempt to resolve their
differences, and the developer opted for the latter.
24. Before the hearing was formally continued,however, Chairman Stein solicited the
immediate reaction to the petition of those members and alternate members of the Board
who were present to assist the developer prior to the resumed hearing
25. All of the Board Members present expressed concerns about the proposed density of the
project, and parking.
26. In particular, Board Member, Rebecca Curran specifically requested that the developer
supply information at the resumed hearing regarding how the intensity of the proposed
non-conforming use would compare to the intensity of the existing non-conforming use.
27. The hearing was thereupon continued to the May 20, 2009 meeting of the ZBA, and
further continued(ultimately)to the August 19,2009 ZBA meeting.
28. At the August 19, 2009 ZBA hearing the developer(for the first time)downgraded his
petition from 9 to 8 units, and also raised the possibility that he would acquire a lot at the
rear of the property from the archdiocese, which(if consummated) would increase the lot
area per dwelling unit at 162 Federal Street from approximately 1,600 square feet to
approximately 3,200 square feet, which is still less than half of the required"minimum
lot area per dwelling unit"of 7,500 square feet.
29. Because several neighbors could not attend the August 19, 2009 hearing,the hearing was
continued to the next meeting of the Board on September 16, 2009.
30. At no time has the developer filed detailed, stamped architectural plans with the Salem
ZBA concerning his proposed development of the interior of 162 Federal Street. The
only supporting documentation he filed, which was at the September 16, 2009 ZBA
hearing, was a document entitled"Federal Street Condominiums, Program Study for:
162 Federal Street, Salem, MA 01970"prepared by Pitman & Wardley, Architects, 32
Church Street, Salem, Massachusetts, which consisted of six pages. Emphasis added.
31. Page I of said "Program Study"consisted of the title page; page 2 consisted of three
colored photographs of the front, rear, and easterly side of the main block of the existing
building; page 3 consisted of two alternative site plans, the"Original Proposed Site Plan"
to the left prepared by North Shore Survey Corporation dated January 2, 2008 showing
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L5 parking spaces, and a"Parking Sketch Concept Plan"dated August 4, 2009 prepared
by Patrowickz Land Engineering to the right, showing 18 parking spaces; a fourth 8V2 x
I I page entitled "Overview Of Condominiums on Federal Street(between North and
Boston Streets)," which is neither an "apples and apples"comparison nor a fair sampling;
two more pages,namely"A.I"and "A.2,"being"Preliminary Proposed Floor Plans"for
the interior of the building; and a seventh page showing a comparison between the square
footages of the building, as determined by the Salem City Assessor,and the significantly
greater square footage as determined by the developer. The foregoing consists of Mr.
Wharfrs entire written submissions in support of his petition.
32. Pages A.1 and A.2 are so "preliminary"and sketchy that they do not even reveal interior
entrances and egresses, or exterior entrances or egresses, for all of the units.
33. At no time did the developer introduce any evidence with respect to how the intensity of
the existing nonconforming use would compare with the intensity of the propose non-
conforming use.
34. As occurred at the April 15, 2009 and August 19, 2009 ZBA hearings, no one from the
audience spoke in favor.
35. The September 28, 2009 ZBA Decision included 5 self-serving generalized findings
intended solely to meet the requirements of Chapter 40A for approval of variances, even
though no evidence in support of same was introduced during either the April 15, 2009,
August 19, 2009, or September 16,2009 ZBA hearings, and even though none of said
findings are rooted in fact.
36. Finding no. 4 even recited that"the applicant may vary the terms of the Residential Two-
Family Zoning District to construct the proposed addition......even though the Plaintiffs
are unaware that an "addition7 to the structure was ever proposed. Emphasis added.
37. Finding no. 3 cited "substantial hardship, financial or otherwise,"that"literal
enforcement"of the Salem Zoning Ordinance would cause the petitioner, "as costs of the
building's rehabilitation in the current economic climate would be considerable,"even
though(on information and belief)the developer's purchase and sales agreement is
expressly conditional on his obtaining ZBA approval, and(again)there was absolutely no
evidence introduced concerning the latter.
38. One finding that was conspicuously absent from the September 28, 2009 ZBA Decision
was the required written finding that the Proposed nonconforming use will be no more
intense or deleterious than the existin conforming use.
39. On September 9, 2009 the Salem City Council is believed to have passed the so-called
"Zoning Ordinance Recodification,"which was not intended to change the substance of
the previous Salem Zoning' Ordinance, but was merely intended to be a rewording of
same for better clarity.
- 5 -
40. The September 28,2009 ZBA Decision violates both the Salem Zoning Ordinance in
effect as of the filing of Mr. Wbarff s petition,and the recodified Salem Zoning
Ordinance passed by the Salem City Council on September 9, 2009, with respect to
changes from one nonconforming use to another nonconforming use.
41. As to each of the following Counts, the Plaintiffs reaffirm, re-allege, and incorporate all
of the prior allegations contained in paragraphs 1-40 inclusive above.
ARGUMENT
COUNTI
There are no special conditions and circumstances affecting the parcel
which do not generally affect other land or buildings in the same district.
42. There was absolutely no evidence introduced in support of Mr. Wharffs petition
showing that that there are special conditions and circumstances affecting the parcel
which do not generally affect other land or buildings in the same district, and in fact no
such conditions or circumstances exist. (Profit for the seller is not a legally recognized
special circumstance.)
43. To the contrary, Mr. Carr introduced evidence at the April 15,2009 and September 16,
2009 ZBA hearings showing that the structure at 162 Federal Street is not significantly
different in size and scale from many similarly-sized buildings in the neighborhood,
including those containing conforming single-family and two-family uses.
44. Without limiting the generality of the foregoing, 162 Federal Street is not substantially
larger than two former nursing homes at 95 Federal Street and 7 Carpenter Street in the
same R-2 district, each of which was previously converted into 4 luxury condominiums
pursuant to ZBA approval, notwithstanding that in each case they were in appallingly bad
condition, inside and out, as compared with 162 Federal Street, which is in fairly good
condition.
45. Even if the September 28, 2009 ZBA Decision had granted Mr. Wharf eight(8)
residential units at 162 Federal Street, allowing such density at that property while
limiting the then developers of 95 Federal Street and 7 Carpenter Street to four(4) units
in each case,would result in(a) illegal discrimination in favor of Mr. Wharff, (b)
inconsistent, arbitrary,and unreasonable behavior on the part of the Board, and (c) a
zoning decision that is not the result of sound planning principles.
46. There are no ledges, cliffs, ravines, swamps, marshy areas, watercourses, or other natural
or topographical features that uniquely affect the land or proposed building.
47. The Defendants cannot prove this variance requirement as a matter of law.
48. For the foregoing reasons alone, the ZBA exceeded its authority in granting said Variance
and said September 28, 2009 ZBA Decision must be annulled in its entirety.
- 6 -
COUNT 11
Literal enforcement of the provisions of the Salem Zoning Ordinance does
a-0-t involve legally-recognizable hardship,financial or otherwise,to the Petitioner.
49. It is axiomatic under Massachusetts Law that the term "hardship"within the meaning of
Chapter 40A does not include any hardship which is self-created.
50. Yet any "hardship"suffered by Mr. Wharff is entirely self-created, as he can back out of
the purchase at any time if he fails to get ZBA approval to his satisfaction.
51. There was absolutely no evidence introduced on the subject of hardship, including with
respect to the Board's findings concerning the "considerable"cost of"the building's
rehabilitation,"and/or how such costs are affected by the "current economic climate."
52. Thus the Defendants cannot prove this variance requirement as a matter of law.
53. For the foregoing reasons alone, the ZBA exceeded its authority in granting said Variance
and said September 28, 2009 ZBA Decision must be annulled in its entirety.
COUNT III
The relief granted causes substantial detriment to the public good and nullifies and
substantially derogates from the intent and purpose of the Salem Zoning Ordinance
54. Article 1, Section 1-1(a) of the Salem Zoning Ordinance in effect as of the filing of Mr.
VAiarfrs petition, entitled"Purposes,"includes the following explicit Purposes of said
Ordinance: "to lessen congestion in the streets, ...to secure safety from fire... and other
dangers,... to prevent overcrowding of land, to avoid undue concentration of population,
to facilitate adequate provision of transportation....to conserve the value of land and
buildings, ..."The same purposes are incorporated in Chapter 40A and Article 89 of the
Massachusetts Constitution.
55. The Variance granted Mr. Wharff pursuant to the September 28, 2009 Decision of the
Salem ZBA is contrary to the above explicit Purposes of the Salem Zoning Ordinance,
Chapter 40A, and Article 89 of the Massachusetts Constitution.
56. Similarly, said Variance and Special Permits do in fact nullify and/or substantially
derogate from the intent and purposes of the Salem Zoning Ordinance.
57. Thus, the Defendants cannot prove this variance requirement as a matter of law.
58. For the foregoing reasons alone, the ZBA exceeded its authority in granting said Variance
and said September 28, 2009 ZBA Decision must be annulled in its entirety.
COUNT IV
- 7 -
No Special Permits or Variances concerning density were voted at the September 16, 2009
ZBA hearing,or otherwise; thus, because density and the reduction in the minimum lot
area per dwelling unit are inextricably linked, the Variance granted Mr. Wharf in the
September 28,2009 ZBA Decision is null and void,and Mr. Wharff is not allowed to
convert 162 Federal Street into 8 residential units. —
59. The bottom of page 3 of the September 28, 2009 ZBA Decision recited the following in
relevant part concerning the Board's September 16,2009 vote:
In consideration of the above, the Salem Board of Appeals voted, five (5)
in favor(Dionne,Blair, Harris, Debski, and Tsitsinos)and none (0)
opposed, to grant petitioner's request for a Variance subject to the
following terms, conditions, and safeguards: Emphasis added.
60. Nowhere does the September 28, 2009 ZBA Decision recite that the Board
granted either a Special Permit or Variance to Mr. V4iarff concerning
density at the September 16, 2009 ZBA hearing.
61. Pursuant to his March 25, 2009 petition, the only Variance Mr. Wharff
applied for was a variance from the required "Minimum lot size per
dwelling unit"of 7,500 square feet.
62. A Special Permit is required before a non-conforming use can be
converted to another non-conforming use; absent such a change,a
Variance is required to increase residential density above the maximum
permitted in a particular residential district.
63. Because a required Special Permit or Variance concerning density were
aot granted Mr. Wharff pursuant to the explicit terms of the September 28,
2009 ZBA Decision, the�i�Variance granted by the Board on
September 16, 2009, reducing the minimum lot area per dwelling unit
from 7,500 square feet to 1,666 square feet–not 1,166 square feet, as
recited in said Decision-- can not, and should not, be construed to permit
8 residential units at 162 Federal Street,notwithstanding that said
Variance assumes a minimum lot area per dwelling unit based on said 8
units.
64. Thus, because the two are inextricably linked, the grant of one
Variance alone is null and void.
65. For the foregoing reasons alone, the ZBA exceeded its authority in granting said Variance
and said September 18, 2009 ZBA Decision must he annulled in its entirety.
COUNT V
Even if a Special Permit or Variance had been granted Mr. Wharff by the ZBA on
- 8 -
September 16,2009,such relief would have been granted in violation
of Article IX,Section 94(b)of the Salem Zoning Ordinance in
effect as of the filing of Mr. Wharfrs petition,Article 3.3.2 of the recodified Salem Zoning
Ordinance,and similar provisions of Chapter 40A.
66. Article IX, Section 94(b) of the Salem Zoning Ordinance in effect as of the filing of Mr.
Wharfrs petition, entitled "Special Permits,"provides the following in relevant part:
The board of appeals may authorize the issuance of a
special permit for a change to another nonconforming
use of an existing nonconforming ...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
7—
of use, provided such...use is neither increased in
volume unreasonably. Emphasis added.
67. Article 3.3.2 of the recodified Salem Zoning Ordinance passed by the Salem City Council
on September 9, 2009 provides the following in relevant part:
The Board of Appeals may award a special permit to change a
nonconforming use in accordance with this section only if it
determines that such change shall not be substantially more
detrimental than the existing nonconforming use to the
neighborhood. The following types of changes of
nonconforming uses may be considered by the Board of
Appeals...change from one nonconforming use to another, less
detrimental, nonconforming use. Emphasis added.
68. In its September 28, 2009 Decision the Salem ZBA did not in fact make an express
written finding pursuant to Article IX, Section 9-4(b) that the change from the existing
nonconforming use to the proposed non-conforming use "will not depart from...its prior
use or degree of use,"nor did it make an express finding that the approved
nonconforming use"is neither increased in volume unreasonably."
69. Similarly, the Salem ZBA did not in fact make an express written finding in conformity
with the above-quoted language of the recodified Salem Zoning Ordinance.
70. The existin nonconforming use at 162 Federal Street is a medical office building whose
hours of operation are basically Monday-Friday, from 9:00 a.m. to 5:00 p.m.
71. On information and belief, the number of clients or patients associated with such use is
significantly less intense than the proposed nonconforming use of 8 residential units, as is
the parking and traffic associated therewith.
72. By contrast, any change of the existin nonconforming use to 8 residential units is a
significantly more intense use, both in terms of the fact that the new nonconforming use
- 9 -
will exist 24 hours a day, 7 days a week, 52 weeks a year, and also because of the
significantly increased traffic and parking associated with said change of nonconforming
use, including with respect to the inevitable deliveries to,and guests of, the 8 new
residential units.
73. Article 1, Section 1-1(a) of the Salem Zoning Ordinance in effect as of the filing of Mr.
Wharf's petition, entitled"Purposes,"includes the following explicit Purposes of said
Ordinance: "to lessen congestion in the streets, ...to secure safety from fire... and other
dangers,... to prevent overcrowding of land, to avoid undue concentration of population,
to facilitate adequate provision of ftansportation,...to conserve the value of land and
building......and similar provisions exist in Chapter 40A.
74. Even if a Special Permit or Variance had been granted Mr. Wharff at the September 16,
2009 ZBA hearing concerning density, it would be contrary to the above explicit
Purposes of the Salem Zoning Ordinance and Chapter 40A.
75. Any such Special Permit or Variance would in fact constitute substantial detriment to the
public good, would in fact nullify and/or substantiafly derogate from the intent and
purposes of the Salem Zoning Ordinance, and would in fact unreasonably increase the
intensity of the prior nonconforming use.
76. In such event, for the foregoing reasons alone, said September 28,2009 Decision of the
Salem ZBA must be annulled in its entirety.
COUNT V1
Even if a Special Permit or Variance had been granted by the ZBA on September 16,2009,
such relief would be in violation of Article V,Section 5-30)of the Salem Zoning Ordinance
in cffect as of the filing of Mr.Wharfrs petition, Article 9.4.2 of the recodifled Salem
Zoning Ordinance, and similar provisions of Chapter 40A.
77. Article V, Section 5-30) of the precodified Salem Zoning Ordinance in effect as of the
filing of Mr. Wharff's petition, entitled "Extension of nonconformity,"provides the
following in relevant part:
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...of
nonconforming...uses, provided, however, that such
change, extension, enlargement, or expansion shall not be
substantially more detrimental than the existing
nonconforming use to the neighborhood...Emphasis
added.
78. Article 9.4.2 of the recodified Salem Zoning Ordinance passed by the Salem City Council
on September 9, 2009 provides the following in relevant part:
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Special permits shall be granted [by the Salem ZBAI...only
upon its written determination that the adverse effects of the
proposed use will not outweigh its beneficial aspects to...the
neighborhood...(The] determination shall include
consideration of ..Traffic flow and safety, including parking
and loading...[and] Neighborhood character. Emphasis
added.
79. For the reasons set forth in the Count V above, any such approval of the proposed non-
conforming use would in fact be substantially more detrimental to the neighborhood than
the existing nonconforming use, even if the Salem ZBA had granted Mr. Wharff a
Special Permit or Variance for such change of nonconforming use at the September 16,
2009 hearing.
80. For the foregoing reasons alone,the September 28, 2009 Decision of the Salem ZBA
must be annulled in its entirety.
RELIEF SOUGHT
The Plaintiffs respectfully request that this Court:
a. enter a Judgment in their favor annulling in full the September 28, 2009 Decision of the
Salem Zoning Board of Appeals;
b. award the Plaintiffs cost and reasonable attorneys fees in connection with their
prosecution of this action; and
c. grant such other relief as is just and expedient.
Respectfully submitted,
Kenneth Wallace, et a],
By their attorney,
October 19, 2009 jJoH. Esq.
9 North Street
Salem, MA 0 19
978-825-0060
BBO# 07 I
A
CITY OF SALEM� MASSACHUSETTS
BOARD OF APPEAL
120 WASHINGTON STREET. 3RD FLOOR
SALEM, MASSACHUSETTS 0 1970
TELEPHONE: 978-745-9595
FAX: 978-740-9845 1101 SEP 30 A 8: Ocl
KIMBERLEY DRISCOLL
MAYOR r I'LL-
C11 Y CLU
September 28, 2009
Decisio
aty of Salem Zoning Board of Appeals
Petition of WILLIAM WHARFF seeking Variances from minimum lot area per
dwelling unit, and Special Permits to change one nonconforming use to another and
to increase existing side yard setback nonconformity,tc) accommodate conversion of
an office building to nine (9) residential condominium units, on the property located
at 162 FEDERAL STREET,Salem,MA, in the Residential Two-Family Zoning
District(R2).
Petitioner seeks Variances pursuant to the Salem Zoning Ordinance, 56-4,Table I:
Residential Density Regulations (recodified on September 10, 2009 as 54.1.1: Table of
Dimensional Requirements). Petitioner also seeks Special Permits pursuant to §5-30),
Extension of Nonconformity(recodified on September 10,2009 as §3.3.3,Nonconforming
Structures),and §8-6,Board of Appeals, Granting Special Permits (recoddied on September
10, 2009 as S9.4,Special Permits).
Statements of fact:
1. Attorney Scott Grover represented the petitioner,William Wharif, who has the
property under agreement subject to his ability to convert it to a residential use. The
property is owned by Health &Education Services,Inc.
2. In a petition dated March 25,2009,the petitioner requested a Variance and Special
Permits to convert the existing office building to nine (9) residential units.
3. A public hearing on the above mentioned Petition was opened on April 15,2009,
pursuant to Mass General Law Ch. 40A, §11.
4. At the Apra 15, 2009 meeting,Attorney Grover stated that a leaking OR tank exists
on the property, and cleanup would be expensive; he also stated that the property is
currently being remediated.
5. In a statement subrnitced with the application,Attorney Grover also noted that the
building at 162 Federal Street is substantially larger than any other residential
structure in the area;that conversion of it from a commercial to residential use
would require a complete reconstruction of the interior of the building; and that such
conversion would be costly enough to require a certain level of density to support
costs of rehabilitation.
2
Attomey3ohn Carr,7 River Street, representing the
6. At the April 15 2009 meeting, . . oncems
Federal Street �eighborhood Association,opposed the project,cltln�,'c r with
about density, and stating that the change in use from a mental healtil cente
daily business hours to a residential building would increase the intensity of use.
ier residents spoke it,opposition to the project,
7. At the April 15,2009 meeting,od . 7 of use,and the fact that the
citing sijr@ar concerns about density,intensit3 square footage of living space
roposal appeared to have measured the
developer's pi S office.
differently from the city Assessor rd 2 Councillor 1,fichael Sosnowski, 17 Collins
8. At the April 15, 2009 meeting,Wa at units of
current density,stating th
osition to the project at its
Street, spoke in OPP not be in keepingwith the character with�he
the size proposed would
neighborhood. ssed concerns about the
9. At the April 15 2009 meeting,B,oard members expre
for parking,and whether the proposed use
density,the amount of space available
would be less intense than the current use.
�ugust 19,2009. .At the August 1.9, 2009 meeting,
lo. The hearing was continued to 'P WA the neighbors,the plans
Attorney Grover stated that in response to meetings ight (8),an
had been revised to show a reduction from nine (9) proposed units to e
in the proposed parking spaces from fifteen(15) to eighteen (18), and
increase ly lo,000 square feet of additional land area was
additional green space. Approximate with the Archdiocese of Boston
also shown on the plan,the result of an agreement
to acquire part of their property at 150 Federal Street-
11. At the August 19,2009 meeting, Attorney Grover stated that the relief now t e
for lot area per dwelling unit of 3,200 square feet, rather than h
requested was mit and that this was the only
requested 1,166 square feet per dwelling I
originaUy! previously proposed side entrance had been
dimensional relief needed,as the
eliminated. eting Attorney John Carr, representing the Federal Street
At the August 19, 2009 me i ' sing in a
12. Neighborhood Association,stabted that while the project was Progres: ised plans,
. available to view the rev
favorable direction,not all of the neighbors wer-e ed that,if agreeable to
and so they could not Yet support the petition. lie request ) by which time the
Grover,the item be conunu!d to September 16, 200', would then be
Attorney the new plans, and they
neighborhood would have time to review ubsequentlY voted to continue the
able to solidly support the project. 'Me Board s
matter to September 16,2009. revised plans.
meeting,Attorney Grover presented the
13. At the September 16,2009 1 e 172 Federal Street stated his Opposition to the plans
At the meeting,Ken Wallac park on Federal Street. Attorney
due to concerns that prospective residents wo, Street Neighborhood Association
-present the Federal r 'the
C:a 'continuing to re made to the plarm but wished to see
'0 with the changes
stZ at he was pleased
number of units reduced further to seven(7).
3
14. The pubic hearing was closed on September 16, 2009,with the following Zoning
Board of Appeals members present: Rick Dionne (chairing the meetirig),Annie
Harris,Beth Debski,Bonnie Belair(alternate),and Jimmy Tsitsinos (alternate).
15. At its meeting on September 16,2009,the Board of Appeals voted five (5) in favor
and none (0) opposed to grant a Variance under§6-4, Table I: Residential Density
Regulations (recodified on September 10, 2009 as §4.1.1: Table of Dimensional
Requirements).
The Board of Appeal, after careful consideration of the evidence presented at the public
hearing, and after thorough review of the plans and petition subrnitted, makes the following
findings:
1. Special conditions and circumstances exist affecting the parcel or building,which do
not generally affect other land or buildings in the same district.
2. Desirable relief may be granted without substantial detriment to the public good and
without nullifying or substantially derogating from the intent or purpose of the
zoning ordinance, as the proposed project is in harmony with the residential
character of the neighborhood,particularly with the reduction of density and
addition of parking and green space to the original proposal.
3. Literal enforcement of the provisions of this ordinance would involve substantial
hardship,financial or otherwise,to the appellant,as costs of the budding's
rehabilitation in the current economic climate would be considerable..
4. The applicant may vary the terms of the Residential Two-Farridy Zo ning District to
construct the proposed addition,which is consistent with the intent and purpose of
the City of Salem Zoning Cordinance.
5. In permitting such change,the Board of Appeals requires certain appropriate
conditions and safeguards as noted below.
On the basis of the above findings of fact and all evidence presented at the public hearing
including, but not limited to, the Plans,Documents and testimony,the Zoning Board of
Appeals concludes:
To allow for the redevelopment of the office building on the propeity located at 162
Federal Street into eight (8) residential units as per the plans submitted,including the
plan titled "Parking Sketch Concept Plan for a Proposed Residential Development at
162 Federal Street,Salem,Massachusetts," prepared by Patrowicz I-and
Development Engineering and North Shore Survey Corporation,dated August 4,
2009,the requested Variance from lot area per dwelling unit for the Residential Two-
Farridy Zone is granted.
In consideration of the above,the Salem Board of Appeals voted,five (5) in favor Pionne,
Belair, Harris, Debski and Tsitsinos) and none (0) opposed,to grant petitioner's requests for
a Variance subject to the following terms,conditions, and safeguards:
4
1. Petitioner shall comply twith all city and state statutes,ordinances,codes and
regulations.
2. An construction shall be done as per the plans and dimensions submitted to and
approved by the Building Commissioner.
3. All requirerwrits of the Salem Fire Department relative to sinoke and fire safety shall
be strictly adhered to.
4. Petitioner shall obtain a building permit prior to beginning my construction.
5. Exterior finishes of the new construction shall be in harmony with the existing
structure.
6. A Certificate of occupancy is to be obtained,
7. Petitioner is to obtain approval from any City Board or Commission having
jurisdiction including,but not limited to,the Planning Board.
8. Unless this Decision expressly provides otherwise,any zoning relief granted does
not empower or authorize the Petitioner to&molish or rec onstruct the structure(s)
located on the subject property to an extent of more than f ifty percent(50%)of its
floor area or mom than fifty percent(50%)of its replacenit.rit cost at the time of
destruction.If the structure is demolished by any means to an extent of more dim
fifty percent(50%)of its replacement cost or more than fif ry percent(500/0)of its
floor area at the time of destruction,it shall not be reconstiucted except in
conformitywith the provisions of the Ordinmice.
9. Parking shall be as per the submitted plan dated August 4,2009.
)/37y�
c 'one
Salem Zoning Board of Appeals
A COPY OF THS DECISION HAS BEEN FILED WITHnIE PLANNING BOARD
AND THE CITY CLERK
Appeal from this decision,H any,shall be madepursuant to Section 17 of the Massachusetts
General Laws Chapter 40A,and shall be filed within 20 days of fiiing of this decision in the
office of the City Clerk.Pursuant to the Massachusetts General Laws Chapter 40,4,Section
11,the Variance or Special Permit granted herein shall not take el fect until a copy of the
decision bearing the certificate of the City Clerk has been filed wi�h the Essex South Registry
of Deeds.
RECEIVED John H. Carr, Jr., Esq.
RV SPECTIONAL SERVICES
9 North Street
Salem, MA 0 1970
CT 19 P Q' 41-1 Phone: 978-825-0060
Fax: 978-825-0068
October 19, 2009
By Hand
Thomas St. Pierre, Building Inspector
City of Salem
120 Washington Street, 3"Floor
Salem, MA 0 1970
RE: Kenneth Wallace, et a]. v. William Wharff, et a].
Dear Mr. St. Pierre:
I am herewith enclosing courtesy copies of the following relative to the above-entitled
action which I filed in the Essex Superior Court today:
1- Complaint Pursuant To M G.L Chapter 40A, Section 17Appealing he Sep ember 28,
2009 Decision of the Salem Zoning Board OfAppeals Concerning 162 Federal Street,
Salem, Massachusetts;
2 Notice To Salem City Clerk OfAppeal To Essex Superior Court From September 28,
2009 Decision Of Salem Board OfAppeals Concerning 162 Federal Street, Salem,
Massachusetts.
Would you or someone from your office kindly acknowledge receipt of the foregoing by
date-stamping the enclosed copies of this cover letter, said Complaint, and said Notice.
Thank you.
V
John H. Carr,Jr.
Eric. (:7c
Cc Jerald A. Parisella, Esq.—By Hand
Scott M. Grover, Esq.—By Hand
Mr. & Mrs. Kenneth Wallace—By Hand
Ms. Erica Udoff—By Hand
Ms. Meg Twohey—By Hand
UZ/Z0/ZU1Z 10:UV MA Y16 5Z.5 UU155 JUHN H. CARR, JR_ ESQ. 4005
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COLIRT
CIVIL ACTION NO: 2009,2005-A
KENNETH WALLACE, JOYCE WALLACE, and
ERICA UDOFF,
PLAINTIFFS
V. N THIF
rOF T�j� r -F ESSE:)(
�OUNI
WILLIAM WHARFF and 2 ;�.)' 2;.
REBECCA CURRAN,BETH DEBSKI, RICHARD
DIONNE, ANNIE HARRIS, ROBIN STEIN, BONNIE P/z//
BELAIR, and JIMMY TSITSINOS, BEING REGULAR
and ALTERNATE MEMBERS OF THE ZONING BOARD) 'f-LRK
OF APPEALS OF THE CITY OF SALEM,
MASSACHUSETTS,
DEFENDANTS
AGMEMENT FOR JUDGMENT
AGREEMENT made as of the I' day of February 2012 by and betwten all of the parties
in the above-entitled action,namely Plaintiffs Kenneth Wallace, Joyce Wallace, and Erica Udoff
and Defendants William Wharff, Rebecca Curran, Beth Debski, Richard Dionne, Annie Harris,
Robin Stein,Bonnie Belair, and Jimmy Tsitsinos, the latter seven being the regular and alternate
members of the Zoning Board Of Appeal of the City of Salem,Massachuseti s.
RECITALS
WHEREAS Defendant William Wharf(hereinafter"Wharff') has an equitable interest in
162 Federal Street, Salem, Massachusetts 01910 (hereinafter"162 Federal &reet" or"the
property") pursuant to a purchase and sales agreement with the current owner of 162 Federal
Street, which agreement is subject to certain conditions, including Wharffs obtaining zoning
relief from the Mein Zoning Board of Appeal (hereinafter"Salem ZBA"), as hereinafter
described, and the owner's obligation to clean up and/or remediate any envii onmental problems
which may exist at 162 Federal Street prior to Wharf s purchase.of the property; arid
WHEREAS, by Petition dated March 25, 2009 Wharff sought a Variance substituting
1,666 square feet for the required minimum lot area per dwelling unit at 162 Federal Street of
7,500 square feet,and Special Permits to convert the prior non-conforming office building use at
said property to nine (9) residential condominium units; and
02/2;/2012 15:00 FAX 978 825 0068 JOHN H, CARR, JR. , ESQ. 10006
WHEREAS 162 Federal Street is located in an R-2(two family) residential zoning
district; and
WHEREAS at a continued hearing of the Salem ZBA on August 19,2009 Wharff orally
revised Ids Petition by reducing his proposed residential density from nine (9,residential units to
eight(8) residential units; and
WITEREAS at a further continued hearing of the Salem ZBA on Septumber 16,2009
Wharff filed and Presented a"Parking Sketch Concept Plan"dated August 4, 2009 prepared by
Patrowicz Land Development Engineers, which Plan (a copy of which is attached as Exhibit A)
is part of the official ZBA record; and
WHEREAS Exhibit B calls for sixteen(16)off-street parking spa=�at the rear of 162
Federal Street, and landscaping in that area to be later worked out;and
WHEREAS Wharff has presented the Plaintiffs with"Preliminary Proposed Floor
Plane' dated August 19, 2009 prepared by Pitman & Wardley Architects of"2 Church Street,
Salem, MA 01970 (hereinafter"Pitman&Wardley")preliminarily showing how the interior of
162 Federal Street would be reconfigured to accommodate his proposed eight(8)residential
units,which Plans aye attached hereto as Exhibit B; and
WHEREAS by Decision dated September 28, 2009,the Salem ZBA granted Wharff s
revised Petition seeking a Variance and Special Permits to convert 162 Fedeitl Street to eight (8)
residential units, which Decision incorporated Whaff s August 4,2009 Parking Sketch Concept
Plan (Exhibit A); and
WHEREAS Plaintiffs Kenneth Wallace, Joyce Wallace, and Erica Udoff filed a
timely Complaint with this Court appealing said September 28, 2009 ZBA Decision; and
WHEREAS Wharff has made certain assurances to the Plaintiffs that he will
redevelop 162 Federal Street into eight (8) luxury residential units; an(t
I WHEREAS the parties have received a Notice OfStatus Review from this Couit, dated
January 24, 21012, requiring them (in relevant part) to notify the Court in wi iting on or before
Thursday, February 23, 2012 whether the case is ready for trial,whether the case has settled, or
whether a Pre-Trial Conference is needed; and
WHEREAS all of the parties have reached an agreement settling all of the issues in said
action, as hereinafter provided;
NOW, THEREFORE, in consideration of the mutual promises, agreuments,and
covenants herein contained, and other good and valuable consideration,themeeipt whereof is
hereby acknowledged, the parties hereby mutually agree as follows:
1. Wharff shall perform the redevelopment of 162 Federal Street into eight :8)residential units
in conjunction with said Variance and Special Permits himself, and shall nol convey, sell, or
transfer said project entirely to another individual, entity, or developer without the express
- 2 .
UZ/.ZJ/ZULZ 10;UU kAA Vib OZO UVOO JVkiN m. L;AKH, ix, , h5q. i4JUU7
written consent of the plaintiffs,provided however that nothing in this paragraph shall be
construed to preclude Wharff from undertaking such development in any forni of business entity
which he deems appropriate, so long as he maintains control over said entity and said
development.
2. In the event Wharff is unable to purchase 162 Federal Street for any reasoli, or fails to comply
with the provisions of the preceding paragraph(1) hereof,the parties hereby agree that the
September 28, 2009 Decision of the Salem ZBA, and the Variances and Special Permits granted
to Wharff pursuant to same, shall become null and void upon the first to occur of said event(s).
3. Wbarff shall exercise his best efforts to obtain all necessary permits and ai3provais by May
31: 2012, including(without limitation)those of the Salem Planning Board (Site Plan Review,
including landscaping), the Salem Historical Commission(exterior changes), and the Salem
Conservation Commission(environmental issues, including so-ceed 21 E c1can-up), and he shall
notify the Plaintiffs and the Federal Street Neighborhood Association of his I ilans and/or
proposals in connection with 162 Federal Street reasonably in advance of each hearing or
meeting of the Board or Commission in question regarding such property.
4. Wharff shall likewise exercise his best efforts to conclude his purchase of 162 Federal Street
by May 31, 2012, and shall commence construction within one(1) year from the date hereof.
5. Simultaneously upon the execution of this Agreement by attorneys for all of the parties, in
consideration of the foregoing provisions far their benefit the Plaintiffs hereoy agree to dismiss
their within appeal of the September 28, 2009 Decision of the Salem ZBA with prejudice.
6. Each of the parties shall be solely responsible for his, her, or its attomey'-�fees in connection
with this action.
7. All rights of appeal and/or other challenges to this Agreement are hereby waived, as are all
claims each party may have against the other(s) up to the date of this Agreement.
8. Fach of the signatories to this Agreement hereby warrants and represents that he or she has
complete authority to sign this Agreement in behalf of his or her respective clients,and to so
bind said clients.
9. Notwithstanding the filing of this Agreement in the within action,this Agreement shall
nevertheless survive as an independent contract between the parties.
10. This Agreement is being executed in six (6)counterparts, each of which shall be deemed an
original.
Witness our hands and seals as of the I"day of February 2012.
. 3 -
02/2.3/2012 15:00 FAX 978 825 0068 JOHN H. CARR, JR- ESQ. 10008
Kenneth Wallace,Joyce Wallace, and
Erica Udoff
By the
February 2012
John H q-
9 North Street
S al e m=, M760eli 9 7
978-807-3264
BBO#075-280
William Wharff,
By his attorney,
Februar�- 2012
Vco V. Grover,Esq.
nti., Quitnn, G�rover& Frey,P.C.
27 Congress Street, Suite 414
Salem, NIA 01970
978-745-8065
BB04546-393
Salem Zoning Board of Appeal.
By its attorney,
February 2012
Robin Stein,Esq.
Assistant City Solicitor
93 Washington Street
Salem. MA 0 1970
978-619-5633
BBO#654-289
-4 .
RECEIVED
COMMONWEALTH OF MASSACHUSETTS ItiSPECT1001- SERVICE
Doi OCI I q P 1Z 44
ESSEX, SS. SUPERIOR COURT
CIVIL ACTION NO: A
KENNETH WALLACE, JOYCE WALLACE, and
ERICA UDOFF,
PLAINTIFFS
V.
WILLIAM WHARFF, and REBECCA CURRAN, BETH
DEBSKI, RICHARD DIONNE, ANNIE HARRIS, ROBIN
STEIN, BONNIE BELAIR, and JIMMY TSITSINOS,
BEING REGULAR and ALTERNATE MEMBERS OF
THE ZONING BOARD OF APPEALS OF THE CITY OF
SALEM, MASSACHUSETTS,
DEFENDANTS
COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17
APPEALING THE SEPTEMBER 28,2009 DECISION OF THE SALEM ZONING
BOARD OF APPEALS CONCERNING 162 FEDERAL SALEM,MASSACHUSETTS
This is an appeal from a Decision of the Salem, Massachusetts Zoning Board of Appeals
(hereinafter"ZBA7'or"Salem ZBA"), dated September 28, 2009, and filed with the Salem City
Clerk on September 30, 2009, granting a Variance to William Wharff from the required
minimum lot area per dwelling unit at 162 Federal Street, Salem,Massachusetts 0 1970, which
property is located in an R-2 zoning district. The Plaintiffs are also appealing said Decision to
the extent that it allows Mr. Wharf to change one nonconforming use to another nonconforming
use to accommodate the conversion of a nonconforming office building at said property to eight
(8) residential units which would result in a density which is four times the maximum density of
two 2)residen7iaF��ts permitted in an R-2 district, and would also result in a lot area per
dwelling unit of less than half of the required minimum of 7,500 square fee . The grounds for
this appeal are that said ZBA Decision was arbitrary, capricious, unreasonable, violated due
process, exceeded the Board's authority, was based on legally and factually untenable grounds,
and was wrong as a matter of law.
A certified copy of said September 28, 2009 Decision is attached hereto as Exhibit A.
PARTIES
Plaintiffs
1. Plaintiffs, Kenneth Wallace and Joyce Wallace, are husband and wife who own and
reside at 172 Federal Street, Salem, Massachusetts 0 1970, which property is located
within the 300-foot notice requirement of the Salem Zoning Ordinance.
2. Plaintiff, Erica Udoff, owns and resides at 155 Federal Street, Salem, Massachusetts
01970, which property is located within the 300-foot notice requirement of the Salem
Zoning Ordinance.
Defendants
3. Defendant, William Wharff(hereinafter"Mr. Wharff'), who resides at One Carol Way,
No. 404, Salem, Massachusetts 01970,has an equitable interest in 162 Federal Street,
Salem, Massachusetts 0 1970 by virtue of a purchase and sales agreement with the current
owner of the property, and is the petitioner/beneficiary of the September 28, 2009
Decision of the Salem ZBA herewith being appealed.
4. Defendant, Rebecca Curran, who resides at 14 Clifton Avenue, Salem, Massachusetts
0 1970, is a regular member of the Salem ZBA who did not participate in the September
16, 2009 vote granting Mr. Wharff said Variance.
5. Defendant, Beth Debski, also known as Elizabeth Debski,who resides at 43 Calumet
Street, Salem, Massachusetts 0 1970, is a regular member of the Salem ZBA who voted to
grant Mr. Wharff said Variance at the September 16, 2009 hearing of the Salem ZBA.
6. Defendant, Richard Dionne, who resides at 23 Gardner Street, Salem, Massachusetts
01970, is a regular member of the Salem ZBA who voted to grant Mr. WharlT said
Variance at the September 16, 2009 hearing of the Salem ZBA.
7. Defendant, Annie Harris, who resides at 28 Chestnut Street, Salem, Massachusetts 01970,
is a regular member of the Salem ZBA who voted to grant Mr. Wharff said Variance at
the September 16, 2009 hearing of the Salem ZBA.
8. Defendant, Robin Stein, who resides at 141 Fort Avenue, Salem,Massachusetts 01970, is
a regular member and the chairwoman of the Salem ZBA who did not participate in the
September 16, 2009 vote granting Mr. Wharff said Variance.
9. Defendant, Bonnie Belair,whose mailing address is P.O. Box 685, Salem, Massachusetts
0 1970 is an alternate member of the Salem ZBA who voted to grant MT. Wharff said
Variance at the September 16, 2009 hearing of the Salem ZBA. (This is the only address
available for Ms. Belair at the office of the Salem ZBA.)
10. Defendant,Jimmy Tsitsinos, also known as James Tsitsinos, who resides at 6C Wharf
Street, Salem, Massachusetts 01970, is an alternate member of the Salem ZBA who voted
to grant Mr. Wharff said Variance at the September 16, 2009 hearing of the Salem ZBA.
-2 -
COMMONWEALTH OF MASSACHUSETTS
RECEIVED
ESSEX, SS. SUPERIOR d�WTIONAL SERVICES
CfVIL ACTION NO:
zoo,
KENNETH WALLACE, JOYCE WALLACE, and
ERICA UDOFF,
PLAINTIFFS
V.
WILLIAM WHARFF, and REBECCA CURRAN, BETH
DEBSKI, RICHARD DIONNE, ANNIE HARRIS, ROBIN
STEIN, BONNIE BELAIP, and JIMMY TSITSINOS,
BEING REGULAR and ALTERNATE MEMBERS OF
THE ZONING BOARD OF APPEALS OF THE CITY OF
SALEM, MASSACHUSETTS,
DEFENDANTS
NOTICE TO SALEM CITY CLERK OF APPEAL TO ESSEX SUPERIOR COURT
FROM SEPTEMBER 28,2009 DECISION OF SALEM ZONI[NG BOARD OF APPEALS
CONCERNING 162 FEDERAL STREET SALEM,MASSACHUSETTS
1, John H. CarT,Jr., attorney for the Plaintiffs in the above-entitled action, hereby give notice to
the City Clerk of the City of Salem,Massachusetts and to the Salem Zoning Board of Appeals
that said Plaintiffs have filed a civil Complaint with the Essex Superior Court appealing the
September 28, 2009 Decision of the Salem Zoning Board of Appeals relative to the petition of
William Wharff concerning 162 Federal Street, Massachusetts 0 1970,which property is located
in an R-2 Zoning District. Said September 28, 2009 ZBA Decision was filed with the office of
the Salem City Clerk on September 30, 2009.
A copy of said Complaint, filed as Essex Superior Court Civil Action No. 0 '�_zd 0 17 "9
on October 19, 2009, is attached hereto.
Respectfully submitted,
Kenneth Wallace, et al,
B their atto ey,
October 19, 2009
John H. Carr, r., Esq.
9 North Street
Salem, MA 01 0
978-825-0060
40 1
11. All of the foregoing Plaintiffs have standing to bring this action, as all are substantially
aggrieved by the September 28, 2009 Decision of the Salem ZBA granting Mr. Wharff
said Variance, especially without explicitly granting any Special Permit(s) or other relief
required for changing one nonconforming use to another nonconforming use, and(to the
extent said Decision purports to allow said change of nonconforming use)by that
decision as well.
JURISDICTION
12. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the
Massachusetts General Laws.
13, This case is timely, as it has been filed within twenty (20) days from September 30, 2009,
which is when the September 28, 2009 Decision of the Salem ZBA was filed with the
Salem City Clerk.
PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS
14. 162 Federal Street(hereinafter"the property") is a 2-story Victorian building, with a third
story under its Mansard roof, and a smaller attic story above that, with a rear ell and a ftill
basement below the Federal Street grade.
15. The property is located in an R-2 zoning district� which allows for a maximum density of
two (2) residential units, and requires a"minimum lot area per dwelling unif'of 7,500
square feet.
16. The building was originally built to serve as the convent of the St. James Parish; since the
closing of the former St. James parochial school it has been used as an office building for
a private mental health practice.
17. According to the Salem Assessor's records, it contains 10,312 square feet, not including
the attic and basement levels,which are not currently used.
18. An initial public hearing on Mr. Wharff s petition was held before the Salem ZBA on
April 15, 2009.
19. Attorney, John H. Carr, Jr., representing the Federal Street Neighborhood Association
("FSNA"), spoke in opposition to the project, citing FSNA's concerns relative to the
density and other aspects of the proposed project, including that the proposed change in
use would increase the intensity of the existing non-conforming use of the property, and
would not be in keeping with the residential density and character of the neighborhood.
20. Attorney Carr also questioned the developer's unverified representation to the Board that
the building contains 16,359 square feet of interior space, whereas the Salem Assessor's
records indicate 10,312 square feet.
_ 3 -
21. Several other neighbors spoke in opposition to the project, citing similar concerns about
density, intensity of use,traffic, and parking, as did Ward 2 Councilor Michael
Sosnowski (in whose ward the property is located), who also stated that the size of the
proposed units would not be in keeping with die character of the neighborhood.
22. No one spoke in favor of the petition.
23. Chairman Stein offered the petitioner the choice between proceeding with an immediate
vote at the April 15, 2009 hearing, or continuing the hearing to a later date to give the
developer an opportunity to meet with the neighbors in an attempt to resolve their
differences, and the developer opted for the latter.
24. Before the hearing was formally continued,however, Chairman Stein solicited the
immediate reaction to the petition of those members and alternate members of the Board
who were present to assist the developer prior to the resumed hearing
25. All of the Board Members present expressed concerns about the proposed density of the
project, and parking.
26. In particular, Board Member, Rebecca Curran specifically requested that the developer
supply information at the resumed hearing regarding how the intensity of the proposed
non-conforming use would compare to the intensity of the existing non-conforming use.
27. The hearing was thereupon continued to the May 20, 2009 meeting of the ZBA, and
further continued (ultimately)to the August 19, 2009 ZBA meeting.
28. At the August 19,2609 ZBA hearing the developer(for the first time)downgraded his
petition from 9 to 8 units, and also raised the possibility that he would acquire a lot at the
rear of the property from the archdiocese, which(if consummated) would increase the lot
area per dwelling unit at 162 Federal Street from approximately 1,600 square feet to
approximately 3,200 square feet, which is still less than half of the required "minimum
lot area per dwelling unif'of 7,500 square feet.
29. Because several neighbors could not attend the August 19, 2009 hearing,the hearing was
continued to the next meeting of the Board on September 16, 2009.
30. At no time has the developer filed detailed, stamped architectural plans with the Salem
ZBA concerning his proposed development of the interior of 162 Federal Street. The
only supporting documentation he filed, which was at the September 16, 2009 ZBA
hearing,was a document entitled"Federal Street Condominiums, Program Study for:
162 Federal Street, Salem, MA 01970"prepared by Pitman& Wardley, Architects, 32
Church Street, Salem, Massachusetts, which consisted of six pages. Emphasis added.
31. Page I of said"Program Study"consisted of the title page; page 2 consisted of three
colored photographs of the front,rear, and easterly side of the main block of the existing
building; page 3 consisted of two alternative site plans,the "Original Proposed Site Plan"
to the left prepared by North Shore Survey Corporation dated January 2, 2008 showing
-4 -
L5 parking spaces, and a"Parking Sketch Concept Plan" dated August 4, 2009 prepared
by Patrowickz Land Engineering to the right, showing L8 parking spaces; a fourth 8 1/2 x
I I page entitled"Overview Of Condominiums on Federal Street (between North and
Boston Streets),"which is neither an"apples and apples"comparison nor a fair sampling;
two more pages,namely "A.I"and"A.2,"being"Preliminary Proposed Floor Plans"for
the interior of the building; and a seventh page showing a comparison between the square
footages of the building, as determined by the Salem City Assessor, and the significantly
greater square footage as determined by the developer. The foregoing consists of Mr.
Wbarff s entire written submissions in support of his petition.
32. Pages A.I and A.2 are so "preliminary" and sketchy that they do not even reveal interior
entrances and egresses, or exterior entrances or egresses, for all of the units.
33. At no time did the developer introduce any evidence with respect to how the intensity of
the existin nonconforming use would compare with the intensity of the propose non-
conforn-ting use.
34. As occurred at the April 15, 2009 and August 19, 2009 ZBA hearings, no one from the
audience spoke in favor.
35. The September 28, 2009 ZBA Decision included 5 self-serving generalized findings
intended solely to meet the requirements of Chapter 40A for approval of variances, even
though no evidence in support of same was introduced during either the April 15, 2009,
August 19, 2009, or September 16, 2009 ZBA hearings, and even though none of said
findings are rooted in fact.
36. Finding no. 4 even recited that"the applicant may vary the terms of the Residential Two-
Family Zoning District to construct the proposed addition......even though the Plaintiffs
are unaware that an "additiorf'to the structure was ever proposed. Emphasisadded.
37. Finding no. 3 cited"substantial hardship, financial or otherwise,"that"literal
enforcement"of the Salem Zoning Ordinance would cause the petitioner, "as costs of the
building's rehabilitation in the current economic climate would be considerable," even
though(on information and belief)the developer's purchase and sales agreement is
expressly conditional on his obtaining ZBA approval, and(again)there was absolutely no
evidence introduced concerning the latter.
38. One finding that was conspicuously absent from the September 28, 2009 ZBA Decision
was the required written finding that the proposed nonconforming use will be no more
intense or deleterious than the existmg conforming use.
39. On September 9, 2009 the Salem City Council is believed to have passed the so-called
"Zoning Ordinance Recodification,"which was not intended to change the substance of
the previous Salem Zoning Ordinance, but was merely intended to be a rewording of
same for better clarity.
- 5 -
40. The September 28, 2009 ZBA Decision violates both the Salem Zoning Ordinance in
effect as of the filing of Mr. Wharff's petition, and the recodified Salem Zoning
Ordinance passed by the Salem City Council on September 9, 2009, with respect to
changes from one nonconforming use to another nonconforming use.
41. As to each of the following Counts, the Plaintiffs reaffirm, re-allege, and incorporate all
of the prior allegations contained in paragraphs 1-40 inclusive above.
ARGUMENT
COUNTI
There are no special conditions and circumstances affecting the parcel
which do not generally affect other land or buildings in the same district.
42. There was absolutely no evidence introduced in support of Mr. Wharff s petition
showing that that there are special conditions and circumstances affecting the parcel
which do not generally affect other land or buildings in the same district, and in fact no
such conditions or circumstances exist. (Profit for the seller is not a legally recognized
special circumstance.)
43. To the contrary, Mr. Carr introduced evidence at the April 15, 2009 and September 16,
2009 ZBA hearings showing that the structure at 162 Federal Street is not significantly
different in size and scale from many similarly-sized buildings in the neighborhood,
including those containing conforming single-family and two-family uses.
44. Without limiting the generality of the foregoing, 162 Federal Street is not substantially
larger than two former nursing homes at 95 Federal Street and 7 Carpenter Street in the
same R-2 district, each of which was previously converted into 4 luxury condominiums
pursuant to ZBA approval, notwithstanding that in each case they were in appallingly bad
condition, inside and out, as compared with 162 Federal Street,which is in fairly good
condition.
45. Even if the September 28, 2009 ZBA Decision had granted Mr. Wharf eight(8)
residential units at 162 Federal Street, allowing such density at that property while
limiting the then developers of 95 Federal Street and 7 Carpenter Street to four(4)units
in each case,would result in (a)illegal discrimination in favor of Mr. Wharff, (b)
inconsistent, arbitrary, and unreasonable behavior on the part of the Board, and(c) a
zoning decision that is not the result of sound planning principles.
46. There are no ledges, cliffs, ravines, swamps,marshy areas, watercourses, or other natural
or topographical features that uniquely affect the land or proposed building.
47. The Defendants cannot prove this variance requirement as a matter of law.
48. For the foregoing reasons alone, the ZBA exceeded its authority in granting said Variance
and said September 28, 2009 ZBA Decision must be annulled in its entirety.
- 6 -
COUNTH
Literal enforcement of the provisions of the Salem Zoning Ordinance does
not involve legally-recognizable hardship,financial or otherwise,to the Petitioner.
49. It is axiomatic under Massachusetts Law that the term"hardship"within the meaning of
Chapter 40A does not include any hardship which is self-created.
50. Yet any"hardship" suffered by Mr. Wharff is entirely self-created, as he can back out of
the purchase at any time if he fails to get ZBA approval to his satisfaction.
51. There was absolutely no evidence introduced on the subject of hardship, including with
respect to the Board's findings concerning the"considerable" cost of"the building's
rehabilitation," and/or how such costs are affected by the "current economic climate."
52. Thus the Defendants cannot prove this variance requirement as a matter of law.
53. For the foregoing reasons alone, the ZBA exceeded its authority in granting said Variance
and said September 28, 2009 ZBA Decision must be annulled in its entirety.
COUNT III
The relief granted causes substantial detriment to the public good and nullifies and
substantially derogates from the intent and purpose of the Salem Zoning Ordinance
54. Article I, Section I-I(a) of the Salem Zoning Ordinance in effect as of the filing of Mr.
Wharfrs petition, entitled"Purposes," includes the following explicit Purposes of said
Ordinance: "to lessen congestion in the streets, ...to secure safety from fire... and other
dangers,... to prevent overcrowding of land,to avoid undue concentration of population,
to facilitate adequate provision of transportation,...to conserve the value of land and
buildings, ..."The same purposes are incorporated in Chapter 40A and Article 89 of the
Massachusetts Constitution.
55. The Variance granted Mr. Wharff pursuant to the September 28, 2009 Decision of the
Salem ZBA is contrary to the above explicit Purposes of the Salem Zoning Ordinance,
Chapter 40A, and Article 89 of the Massachusetts Constitution.
56. Similarly, said Variance and Special Permits do in fact nullify and/or substantially
derogate from the intent and purposes of the Salem Zoning Ordinance.
57. Thus, the Defendants cannot prove this variance requirement as a matter of law.
58. For the foregoing reasons alone,the ZBA exceeded its authority in granting said Variance
and said September 28, 2009 ZBA Decision must be annulled in its entirety.
COUNT IV
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No Special Permits or Variances concerning density were voted at the September 16,2009
ZBA hearing, or otherwise; thus,because density and the reduction in the minimum lot
area per dwelling unit are inextricably linked,the Variance granted Mr. Wharf in the
September 28,2009 ZBA Decision is null and void,and Mr. Wharff is not allowed to
convert 162 Federal Street into 8 residential units.
59. The bottom of page 3 of the September 28, 2009 ZBA Decision recited the following in
relevant part concerning the Board's September 16, 2009 vote:
In consideration of the above,the Salem Board of Appeals voted, five (5)
in favor(Dionne, Blair, Harris, Debski, and Tsitsinos)and none (0)
opposed, to grant petitioner's request for a Variance subject to the
following terms, conditions, and safeguards: Emphasis added.
60. Nowhere does the September 28, 2009 ZBA Decision recite that the Board
granted either a Special Permit or Variance to Mr. Wharff concerning
density at the September 16, 2009 ZBA hearing.
61. Pursuant to his March 25, 2009 petition,the only Variance Mr. Wharff
applied for was a variance from the required"minimum lot size per
dwelling unit" of 7,500 square feet.
62. A Special Permit is required before a non-conforming use can be
converted to another non-conforming use; absent such a change, a
Variance is required to increase residential density above the maximum
permitted in a particular residential district.
63. Because a required Special Permit or Variance concerning density were
not granted Mr. Wharff pursuant to the explicit terms of the September 28,
2009 ZBA Decision, the�ii�Variance granted by the Board on
September 16, 2009, reducing the minimum lot area per dwelling unit
from 7,500 square feet to 1,666 square feet—not 1,166 square feet, as
recited in said Decision-- can not, and should not, be construed to permit
8 residential units at 162 Federal Street,notwithstanding that said
Variance assumes a minimum lot area per dwelling unit based on said 8
units.
64. Thus, because the two are inextricably linked,the grant of one
Variance alone is null and void.
65. For the foregoing reasons alone,the ZBA exceeded its authority in granting said Variance
and said September 18, 2009 ZBA Decision must be annulled in its entirety.
COUNT V
Even if a Special Permit or Variance had been granted Mr. Wharff by the ZBA on
- 8 -
September 16,2009, such relief would have been granted in violation
of Article 13� Section 94(b) of the Salem Zoning Ordinance in
effect as of the riling of Mr. Wharff's petition,Article 3.3.2 of the recodified Salem Zoning
Ordinance,and similar provisions of Chapter 40A.
66. Article IX, Section 94(b) of the Salem Zoning Ordinance in effect as of the filing of Mr.
Wbarff's petition, entitled"Special Permits,"provides the following in relevant part:
The board of appeals may authorize the issuance of a
special permit for a change to another nonconforming
use of an existing nonconforming ...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 such...use is neither increased in
volume unreasonably. Emphasis added.
67. Article 3.3.2 of the recodified Salem Zoning Ordinance passed by the Salem City Council
on September 9, 2009 provides the following in relevant part:
The Board of Appeals may award a special permit to change a
nonconforming use in accordance with this section only if it
determines that such change shall not be substantiaRy more
detrimental than the existing nonconforming use to the
neighborhood. The following types of changes of
nonconforming uses may be considered by the Board of
Appeals...change from one nonconforming use to another, less
detrimental, nonconforming use. Emphasis added.
68. In its September 28,2009 Decision the Salem ZBA did not in fact make an express
written finding pursuant to Article IX, Section 9-4(b)that the change from the existing
nonconforming use to the proposed non-conforming use "will not depart from...its prior
use or degree of use,"nor did it make an express firiding that the approved
nonconforming use"is neither increased in volume unreasonably."
69. Similarly,the Salem ZBA did not in fact make an express written finding in conformity
with the above-quoted language of the recodified Salem Zoning Ordinance.
70. The existing nonconforming use at 162 Federal Street is a medical office building whose
hours of operation are basically Monday-Friday, from 9:00 a.m. to 5:00 p.m.
71. On information and belief, the number of clients or patients associated with such use is
significantly less intense than the proposed nonconforming use of 8 residential units, as is
the parking and traffic associated therewith.
72. By contrast, any change of the existing nonconforming use to 8 residential units is a
significantly more intense use, both in terms of the fact that the new nonconforming use
- 9 -
will exist 24 hours a day, 7 days a week, 52 weeks a year, and also because of the
significantly increased traffic and parking associated with said change of nonconforming
use, including with respect to the inevitable deliveries to, and guests of,the 8 new
residential units.
73. Article 1, Section 1-1(a) of the Salem Zoning Ordinance in effect as of the filing of Mr.
Wbarf s petition, entitled "Purposes," includes the following explicit Purposes of said
Ordinance: "to lessen congestion in the streets, ...to secure safety from fire... and other
dangers.... to prevent overcrowding of land, to avoid undue concentration of population,
to facilitate adequate provision of transportation....to conserve the value of land and
building—," and similar provisions exist in Chapter 40A.
74. Even if a Special Permit or Variance had been granted Mr. Wharff at the September 16,
2009 ZBA hearing concerning density, it would be contrary to the above explicit
Purposes of the Salem Zoning Ordinance and Chapter 40A.
75. Any such Special Permit or Variance would in fact constitute substantial detriment to the
public good,would in fact nullify and/or substantially derogate from the intent and
purposes of the Salem Zoning Ordinance, and would in fact unreasonably increase the
intensity of the prior nonconforming use.
76. In such event, for the foregoing reasons alone, said September 28, 2009 Decision of the
Salem ZBA must be annulled in its entirety.
COUNT VI
Even if a Special Permit or Variance had been granted by the ZBA on September 16,2009,
such relief would be in violation of Article V, Section 5-30) of the Salem Zoning Ordinance
in effect as of the filing of Mr. Wharff's petition,Article 9.4.2 of the recodified Salem
Zoning Ordinance, and similar provisions of Chapter 40A.
77. Article V, Section 5-30) of the precodified Salem Zoning Ordinance in effect as of the
filing of Mr. Wharff s petition, entitled"Extension of nonconformity,"provides the
following in relevant part:
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...of
nonconforming...uses,provided, however,that such
change, extension, enlargement, or expansion shall not be
substantially more detrimental than the existing
nonconforming use to the neighborhood...Emphasis
added.
78. Article 9.4.2 of the recodified Salem Zoning Ordinance passed by the Salem City Council
on September 9, 2009 provides the following in relevant part:
- 10 -
Special permits shall be granted [by the Salem ZBAI...only
upon its written determination that the adverse effects of the
proposed use will not outweigh its beneficial aspects to...the
neighborhood...[The] determination shall include
consideration of ..Traffic flow and safety, including parking
and loading...[and] Neighborhood character. Emphasis
added.
79. For the reasons set forth in the Count V above, any such approval of the proposed non-
conforming use would in fact be substantially more detrimental to the neighborhood than
the existin nonconforming use, even if the Salem ZBA had granted Mr. Wharff a
Special Permit or Variance for such change of nonconforming use at the September 16,
2009 hearing.
80. For the foregoing reasons alone,the September 28, 2009 Decision of the Salem ZBA
must be annulled in its entirety.
RELIEF SOUGHT
The Plaintiffs respectfully request that this Court:
a. enter a Judgment in their favor annulling in full the September 28, 2009 Decision of the
Salem Zoning Board of Appeals;
b. award the Plaintiffs cost and reasonable attorneys fees in connection with their
prosecution of this action; and
c. grant such other relief as is just and expedient.
Respectfally submitted,
Kenneth Wallace, et al,
By their attorney,
October 19, 2009 Jo H, tarrtJr.\EsqI__
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9 Nortf.
Salem, MA 0197
978-825-0060
1
BBO# 07 I
A
COW CITY OF SALEM, MASSACHUSETTS
BOARD OF APPEAL
120 WASHINGTON STREET, 3RO FLOOR
SALEM, MASSACHUSETTS 0 1970
TELEPHONE: 978-745-9595
FAX: 978-740-9846 In
SEP 30 A 8� Oq
KIMBERLEY DRISCOLL
MAYOR
C11 Y CL,-
September 28, 2009
Decision
aty of Salem Zoning Board of Appeals
Petition of WILLIAM WHARFF seeking Variances from minimum lot area per
dwelling unit, and Special Permits to change one nonconfonning use to another and
to increase existing side yard setback nonconformity,to accommodate conversion of
an office building to nine (9) residential condominium units, on the property located
at 162 FEDERAL STREET, Salem,MA, in the Residential Two-Family Zoning
District(R2).
Petitioner seeks Variances pursuant to the Salem Zoning Ordinance, 56-4,Table 1:
Residential Density Regulations (recodified on September 10,2009 as §4.1.1: Table of
Dimensional Requirements). Petitioner also seeks Special Permits pursuant to 55-36),
Extension of Nonconformity(recodified on September 10,2009 as §3.3.3,Nonconforming
Stractures), and §8-6,Board of Appeals, Granting Special Permits (recoddied on September
10,2009 as 59.4, Special Permits).
Statements of fact
1. Attorney Scott Grover represented the petitioner,William Wharff,who has the
property under agreement subject to his abilityto convert it to a residential use. The
property is owned by Health &Education Services,Inc.
2. In a petition dated March 25, 2009,the petitioner requested a Variance and Special
Permits to convert the existing office building to nine (9) residential units.
3. A public hearing on the above mentioned Petition was opened on April 15, 2009,
pursuant to Mass General Law Ch. 414, 511.
4. At the April 15, 2009 meeting,Attorney Grover stated that a leaking oil tank exists
on the property� and cleanup would be expensive; he also stated that the property is
currently being remediated.
5. In a statement submitted with the application,Attorney Grover also noted that the
building at 162 Federal Street is substantially larger than any other residential
structure in the area;that conversion of it from a commercial to residential use
would require a complete reconstruction of the interior of the building; and that such
conversion would be costly enough to require a certain level of density to support
costs of rehabilitation,
2
Carr,7 River Street, representing the
6. At the April "i 2009 meeting,At"OmeyJohn citing
-�,ighborhood Association,opposed the project,h ,concerns
Federal Street rn a mental ealth center with
about density,and stating that the change in use fro
daily business hours to a residential budding would increase the intensity of use.
At the April 15 2009 meeting, other residents spoke in opposition to the project,
7. and the fact that the
citing similar�concems about density' intensity of use' ing space
developer's proposal appeared to have measured the square footage of liv
differently f rom the City Assessor's office. 17 Collins
rd 2 Councillor Nfichael Sosnowski,
8. At the April 15 2009 meeting,Wa M density,stating that units of
Street,spoke �opposition to the- project at its curre
the size proposed would not be in keeping with the character with the
neighborhood. oard members expressed concenis about the
9. At the April 15'2009 meeting,B andwhether the proposed use
density,the amount of space available for parking,
would be less intense than the current use.
t 19, 2009. At the August 19. 2009 meeting,
,a. rhe hearing was continued to Augus eetings with the neighbors,the ans
Attorney Grover stated that 'in response to M I proposed units to eight (8), an
had been revised to show a reduction from nine (9),
increase in the proposed parking spaces from fifteen (15) to eighteen (18),arid
ly 10,00o square feet of additional land area was
additional gyreen space. Approximate agreement with the Archdiocese of Boston
also shown on the plan,the result of an
to acquire part of their Property at 150 Federal Street-
il. At the August 19, 2009 meeting Attorney Grover stated that the relief now
requested was for lot area per d"g unit of 3,200 square feet, rather than the
requested 1,166 square feet per dwelling unit,and that this was the Only
originally previously proposed side entrance had been
dimensional relief needed, as the
eliminated.
ing,Attomeyjohn Cart, representing the Federal Street
12. At the August 19,2009 Meet
tated that while the project Was progressing in a
Neighborhood Associauon� s re available to view the revised plans,
favorable direction,not all of the neighbors we
:)port the petition. He requested that,if agreeable to
and so they could not Yet sul mber 16,2009,by which time the
Attorney Grover,the item be continued to Septe then be
neighborhood would have time to review the new plans,and they Would
able to solidly support the project. The Board subsequently voted to continue the
matter to September 16, 2009. ed plans-
At the September 16,2009 meeting,Attorney Grover presented the revis
13. At the meting,Ken Wallace 172 F I ederal Street,stated his opposition to the plans
.c ve residents would park on Federal Street- Attorney
due to concerns that PrOsPc ti Street Neighborhood Association,
john Carr'continuing to represent the Federal e to the plans, but wished to see the
stated that he was pleased with the changes mad
number of units reduced further to seven (7).
3
14. The pubic hearing was closed on September 16, 2009,with the follo,�ving Zoning
Board of Appeals members present: Rick Dionne (chairing the meeting),Annie
Harris,Beth Debski,Bonnie Belair (alternate),and Jimmy Tsitsinos (alternate).
15. At its meeting on September 16, 2009,the Board of Appeals voted five (5) in favor
and none (0) opposed to grant a Variance under§6-4,Table I: Residential Density
Regulations (recodified on September 10,2009 as §4.1.1: Table of Dimensional
Requirements).
The Board of Appeal, after careful consideration of the evidence presented at the public
hearing, and after thorough review of the plans and petition submitted, nukes the following
findings:
1. Special conditions and circumstances exist affecting the parcel or budding,which do
not generally affect other land or buildings in the same district.
2. Desirable relief may be granted without substantial detriment to the public good and
-without nullifying or substantially derogating from the intent or purpose of the
zoning ordinance, as the proposed project is in harmony with the residential
character of the neighborhood,particularly with the reduction of density and
addition of parking and green space to the original proposal.
3. Literal enforcement of the provisions of this ordinance would involve substantial
hardship, financial or otherwise,to the appellant, as costs of the building's
rehabilitation in the current economic climate would be considerable.
4. The applicant may vary the terms of the Residential Two-Farnily Zo ning District to
construct the proposed addition,which is consistent with the intent and purpose of
the City of Salem Zoning Ordinance.
5. In permitting such change,the Board of Appeals requires certain appropriate
conditions and safeguards as noted below.
On the basis of the above findings of fact and ail evidence presented at the public hearing
including, but not limited to,the Plans,Documents and testimony,the Zoning Board of
Appeals concludes:
1. To allow for the redevelopment of the office building on the propelty located at 162
Federal Street into eight (8) residential units as per the plans submitted,including the
plan titled "Parking Sketch Concept Plan for a Proposed Residential Development at
162 Federal Street,Salern,Nlassachusetts," prepared by Patro-wicz Land
Development Engineering and North Shore Survey Corporation,dated August 4,
2009,the requested Variance from lot area per dwelling unit for the Residential Two-
Farnily Zone is granted.
In consideration of the above,the Salem Board of Appeals voted,five (5) in favor Pionne,
Belair,Harris,Debski and Tsitsinos) and none (0) opposed,to grant petitioner's requests for
a Variance subject to the following terms,conditions,and safeguards:
4
1. Petitioner shall comply with all city and state statum$,ordinances,codes and
regulations.
2. All construction shall be done as per the plans and dimensions submitted to and
approved by the Building Gommissioner.
3, AD requirements of the Salem Fire Department relative to smoke and fire safety shall
be strictly adhered to,
4. Petitioner shall obtain a building permit prior to beginningany construction.
5. Exterior finishes of the new construction shall be in hannoily with the existing
structure.
6. A Certificate of Occupancy is to be obtained.
7. Petitioner is to obtain approval from any City Board or Commission having
jurisdiction including,but not limited to,the Planning Board,
8. Unless this Decision expressly provides otherwise,any zoning relief granted does
not empower or authorize the Petitioner to d�rnolish or rec onstruct the structure(s)
located on the subject property to an extent of mom than f ifty percent(50%) of its
floor area or mom than fifty percent(50%)of its replacernt.rit cost at the time of
destruction.if the stmcwm is demolished by any means to an extent of more than
fifty percent(50%)of its replacement cost or mom than fif ry percent(50%)of its
floor area at the time of destruction,it shall not be reconsti-ucted except in
conformity with the provisions of the Ordinance.
9. Parldrig shall be as per the submitted plan dated August 4,2009.
Salem Zoning Board of Appeals
A OOPY OF MS DECISION HAS BEEN FILED WITH TIfE PLANNING BOARD
AND niE CITY CLERK
Appeal from this decision,if any,shall be made pursuant to Section 17 of the Massachusetts
General Laws Chapter 40A,and shall be fled within 20 days of filing of this decision in the
office of the City Clerk Pursuant to the Massachusetts General Laws Chapter 40A,Section
11,the Variance or Special Permit granted herein shall not take effect until a copy of the
decision bearing the certificate of the City Clerk has been filed vAr.h the Essex South Registry
of Deeds.
01-
'ECEIVED John H. Carr, Jr., Esq.
14SI'll IONAL SERVICES 9 North Street
Salem, MA 01970
1 19 P 12- 44 Phone: 978-825-0060
41 Fax: 978-825-0068
October 19, 2009
By Hand
Thomas St. Pierre, Building Inspector
City of Salem
120 Washington Street, 3rd Floor
Salem, MA 0 1970
RE: Kenneth Wallace, et al. v. William Wharff, et al.
Dear Mr. St. Pierre:
I am herewith enclosing courtesy copies of the following relative to the above-entitled
action which I filed in the Essex Superior Court today:
1. Complaint Pursuant To MG.L. Chapter 40A, Section 17,4ppealing the September 28,
2009 Decision of the Salem Zoning Board ofAppeals Concerning 162 Federal Street,
Salem, Massachusetts;
2. Notice To Salem City Clerk OfAppeal To Essex Superior Court From September 28,
2009 Decision QfSalem Board OfAppeals Concerning 162 Federal Street, Salem,
Massachusetts.
Would you or someone from your office kindly acknowledge receipt of the foregoing by
date-stamping the enclosed copies of this cover letter, said Complaint, and said Notice.
Thank you.
V
John H. Carr, Jr.
Enc. (:7r
Cc Jerald A. Parisella, Esq.—By Hand
Scott M. Grover, Esq.—By Hand
Mr. & Mrs. Kenneth Wallace—By Hand
Ms. Erica Udoff—By Hand
Ms. Meg Twohey—By Hand
q
Of
�Svarb of
ral jAs 178
JANUkRY 10, 1978 CIT-1
urFICE
DECISION ON THE PETITION OF HEALTH EDUCATT(y SALEM. MASS.
PROPERTY LOCATED AT 16Z-- N SERVICES INC- CONCERNINIG
FEDERAE--STREET - R-2 DISTRICT
A hearing on this petition was held on January 10., 1978 with the following Board
Members Present: Jane Lundregan, Donald Eames, Arthur Labrecque
Boulger. Notices were Sent to abutters and others in accordanc ame
Chapter 808. ' Douglas Hopper and J S
e with ��ss- Gen. Laws,
The Petitioner requested a variance in order to use the premises at 162 Federal St.
(R-2 District) as a guidance center serving
Topsfield and INUddleton. Salem, Marble I head, Peabody, Danvers, BOxford,
�ttY- Walter Costello represented the Petitioner before the Board: He noted that the
Petitioners had been granted a variance on Property) for a different Piece Of Property on
Federal St. , but, since an appeal was taken by
the property. an abutter, they had to abandon plans to use
Since that time, the Petitioner made an offer to St. James Church to Purchase the
4' a Property in question located at 162 Federal St. which had been previously used as a convent.
piece of property is not suitable for residential use but has been used by the Church
Convent. The Health & Education Services, Inc. has been using the building over the
Past five years and has had an excellent relationship with the neighbors.
requesting a variance in order to purchase the building for said use. Mey are now
No one appeared in opposition to the granting of the variance.
The Board voted to grant the variance requested with the condition that they have no
overnight in-patient lodging and that the Property will be maintained at all times. The
Board felt that it could grant the variance requested because the property has been used
for the requested Purpose over the past five Years and is not suitable for residential
neinbuse- The Board found that the Petitioner has a good relationship with
ors and abutters and therefore the variance could be ,
det nent to the surrounding neighborhood and the Surrounding
Salem Zoni -ranted without substantial
ng BY-law. without derogating from the intent of the
VJANCE (3RANTED (1'rith conditions noted above)
AP
APPF4L FROM TTITS DECISION
L.4�'Vs' CHAPTER 308, AND S IF ANY, SHALL BE
DECISION IN 'f'1E OFFICE 0 Fi�di BE FILED IVI F PTj--qsUAW TO SECTION 17 OF THE MASS GENr.
PURSUkNT TO F TLrE CITY CLERKTHTN Tl�,�ENTy DAYS AFTER ITrE D' ATE OF FILIN'G oF* THIS
MANTED HEREIN CEN LA'v'S, MkPTER 808, SECTION 11 _nEz VA1RT,'c,:CE OR SPECT.-IL PER��ITT
I-, SUALL NOT TkICE EFFECT UNTIL A COPY 4 THi DEC-�Sjo.�;'
[!ON Or- -Ft-FE C[Ty CLERK, TUAT 20 DAYS �fA�,E I
;'j'CR A�,' APPLTU UAS ELAPSED -k%. D INC) Appr.,�L [I\, BlEj�RT-\'G 'IF- CERTIFTt-j�-
BEEN FILED TILAT IT [Lk� BEEN DIS'A'rSSE BFEN ]�TLE-�n' OR THAT IF
ESSEX P,"GISTRY OF DEE ' . 1 D O,,� J)5_,N'"TED, IS RECCRi�'D TN 7TfE'
zCOPDED NOTED IN TT[E ODS AND INMEKED UNDER THE NAME OF
11 ;,iNER'S CERTIFTCjTE OF -FIT' R F
Copy OF 11115 DECISION HAS BEEN FILED WTTH LF. 0 RECGaD OR is
111E PT_A_%NMNG3 Bo.�pj) THE CITY CLEOK.
DATE OF PERMIT PERMIT No OWNER #26-0096 LOCATION
7.6.67 #228 St. James Parish 161�,Federal Street,;V6_967
STOUM PROPERfYNS No.OF STORIES No.OF FAMILIE! :OST
Content
BUILDER
Remodel dwelling for Convent 471-
_Ob�_
11/3/77 #456 (Owner-Health & Education) (St.JameS Convent) Build new staircase fzm 2nd
to 3rd floor
6e,.r/-L,
212717�'V44�7 Enclose staircase for fire rating;install fire and smoke detector.
3/4/81 #66 Renovate chapel area into (21) additional office areas.
6/26/92 #290-92 INSTALL HANDICAppED RAmp COST $14,000. fee $89.00
1/25/94 # 18-94 Install new partition 18' x 46" Est.2,500 Fee 20.00 L.E.T.
Inspected & Approved by L.E.T. 2/94/
9/29/95 #531-95 Renovate 4th floor as per plans submitted. est 15,000. fee 95. L.E.T.
11/13/95 #608-95 Renovations for health & education services as per plans submitted.
est 200,000. fee 1200. L.E.T.
11/16/95 #531-95 CCERT'VICATE OF OCCUPANCY ISSUM FOR PMWT 531 95. L.E.T.
6/15/99 #397-99 REPAIR SLATE. REPAIR GUTTER. REPAIR FLAT PORCH ROOF. est2500.00 fee 30.00tjs
AFFIDAVIT OF SERVICE
City of Salem provision M.G.L., Chapter 39, Section 23D.
(A City Councilor, board, or commission member, to sign upon listening to the audio of a
missed meeting and examining all evidence.)
Per Ite City of Salem provision M.G.L., Chapter 39 Section 23D,
11 M1 ")LV(, , hereby certify under the pains and penalties of perjury that I
have examined all evidence pertaining to whichwas
distributed at the single missed session on(2LLa &CO!j which
evidence included an audio recording of the misQ session. 'This certification shall
become part of the record of the hearing.
Name Date
AFFIDAVIT OF SERVICE
City of Salem provision M.G.L., Chapter 39, Section 23D.
(A City Councilor, board, or commission member, to sign upon listening to the audio of a
missed meeting and examining all evidence.)
Per the City of Salem provision M.G.L., Chapter 39 Section 23D,
hereby certify under the pains and penalties of perjury that I
have examined all evidence pertaining to which was
distributed at the single missed session on A�—,76-2, i�v 6 �z which
evidence included an audio recording of the missed session. This certification shall
become part of the record of the hearing.
I
Name Date
AFFIDAVIT OF SERVICE
City of Salem provision M.G.L., Chapter 39, Section 23D.
(A City Councilor, board, or commission member, to sign upon listening to the audio of a
missed meeting and examining all evidence.)
Per the City of Salem proyision M.G.L., Chapter 39 Section 23D,
i, epnp-)L� 6.eiat V—, hereby certify under the pains and penalties of perjury that I
have examined all evidence pertaining to —whichwas
distributed at the single missed session on 15, 2,0 0 which
evidence included an audio recording of the missed session. This certification shall
become part of the record of the hearing.
Name &",J-4-t �EU�
Date q1 vs 109
t
Petition Regarding the Development of
162 Federal Street, Salem MA
We, the undersigned, request that the Salem Zoning Board of Appeals deny the application of
William Wharff for a variance from the R-2 zoning that governs 162 Federal Street. We believe
the number of condominiums (nine) that he proposes is substantially more dense than is
appropriate for a neighborhood of predominantly single- and two-family homes.
Date Name Address Phone
7 4+
q /u, q1 7W-A I q
I �&&ALdLt ?V
L liqla q
SOS,
IM 5 ZS5Y6 3.
V
'�7,9 ZeW-1 0-9
eg 11-/4 r,_�,uli <�; 7- 61-722 -711 J I I
Z�01111d'Ins'aw �3 &f&2Z 51 q 7 e-N6 -9)a
I �Ioq (W, I
-7 1 / --3,?Zsr
Petition Regarding the Development of
162 Federal Street, Salem MA
We, the undersigned, request that the Salem Zoning Board of Appeals deny the application of
William Wharff for a variance from the R-2 zoning that governs 162 Federal Street. We believe
the number of condominiums (nine)that he proposes is substantially more dense than is
appropriate for a neighborhood of predominantly single-and two-family homes.
Date Name AddFess Phone
2--
I sk t I -R�IA' A"S-Lue� --;E- VQV41 jcl�
Petition Regarding the Development of
162 Federal Street, Salem MA
We, the undersigned, request that,the Salem Zoning Board of Appeals deny the application of
William Wharff for a variance from the R-2 zoning that governs 162 Federal Street. We believe
the number of condominiums (nine) that he proposes is substantially more dense than is
appropriate for a neighborhood of predominantly single-and tWG-family homes.
Date Name Address Phone
qkk
6�j //7,76�
�I
- - --------7-
Petition Regarding the Development of
162 Federal Street, Salem MA
We, the undersigned, request that the Salem Zoning Board of Appeals deny the application of
William Wharff for a variance from the R-2 zoning that governs 162 Federal Street. We believe
the number of condominiums (nine) that he proposes is substantially more dense than is
appropriate for a neighborhood of predominantly single- and two-family homes.
Date Name Address Phone
4. tq-'O1 �-A/rou ILM leg Ff�OLL S-1-At-ol 978- 5q4-91iS'
UU
L71 L S--T- �?8-1(A 4-O�bj
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917 F03,1030_
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9 r7- 971-Ul wgy'
If T/ 6 f4,L i.)!- -J?lA&-t1/U OL 4 4-A A 9-79 -745—I'M
7�;
Petition Regarding the Development of
162 Federal Street, Salem MA
We, the undersigned, request that the Salem Zoning Board of Appeals deny the application of
William Wharff for a variance from the R-2 zoning that governs 162 Federal Street. We believe
the number of condominiums (nine) that he proposes is substantially more dense than is
appropriate for a neighborhood of predominantly single- and two-family homes.
Date _bkme Address Phone
IYAW-0i
/4
)'S__AOt "AN�L �Afrd SL.
No r i C�kl \NIP VZ ree&r"A 45�)t. -5'kUr-\
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% —7,Vj_,3 c)&
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130 ROrA- �t 'ilg :�4 26
IIIIC(
Petition Regarding the Development of
162 Federal Street, Salem MA
We, the undersigned, request that the Salem Zoning Board of Appeals deny the application of
William Wharff for a variance from the R-2 zoning that governs 162 Federal Street. We believe
the number of condominiums (nine) that he proposes is substantially more dense than is
appropriate for a neighborhood of predominantly single- and two-family homes.
Date Name Address Phone
ooT�J� a' V-,—Mq- 7Lts-lzm
Q'�440 (�A' 4 Z.� Cd&
A
1_&I re&wd -9-
Now 59rlyv �11i' F(UUIV�\ I 5A" v-i— M
2L
�—DariiellleWcKnight
From; Meg Twohey[vze255gg@verizon.net]
Sent: Monday, August 17, 2009 11:08 AM
To: Danielle McKnight
Cc: 'Ana Gordan'
Subject: ZBA: petition of Bill Wharff for 162 Federal Street
Dear Danielle - I will not be able to attend this week's ZBA meeting, but wanted to ask
you to convey to the Board that, much as we appreciate the two meetings that Bill- Wharff
has had with the neighborhood since the ZBA last met to hear this matter in April, his
position on density has not changed and we have not received the interior plans for the
building which we have requested.
Therefore I continue to support the petition submitted to the Board by many Federal Street
abutters and neighbors at the last meeting, citing the number of units proposed as being
out of scale with the neighborhood. I hope that the abutters and other neighbors on
Federal Street can continue to meet with Mr. Wharff to arrive at a solution that works for
everyone - and that you will support continued dialogue. Thank you. Best regards Meg
Twohey, 122
Federal Street, Salem, MA 01970
Checked by AVG - www.avg.com
Version: 8.5.375 / virus Database: 270.13.58/2309 - Release Date: 08/17/09 06:08:00
> This concerns the proposed layout of 162 b) Further I would be irate that after I had
Federal Street. spent my money to learn, though I paid
This document references the parking for it, I effectively did not have a
sketch. parking area I could reasonably use.
All distances are approximate and all
orientations are as if you were facing the As a member of the Federal Street
building from Federal street. Neighborhood Association I voted along
1) As presently laid out: with others that any development that forces
a) To get into the right side door from added cars to find parking on Federal Street
Federal Street you need to walk 36 feet is a non-starter and will be opposed.
with a 3 foot rise.
b) To get into the door on the left side, Sincerely
which leads to the elevator in the middle Kenneth Wallace
of the building, from Federal Street you 172 Federal Street.
need to walk 66 feet with a 5 foot rise.
c) To get to the left side door from the
parking lot you need to walk 124 feet
with a 22 foot rise.
i) Conclusion: with the present layout
those who live in units 2, 4, 5, 6
would park on Federal Street.
2)Counter proposal:
a) Make the right side door lead to units 2
and 3 only, remove the stairway.
b) Make the left side door lead only to unit
3
c) Research if there is room to make a drive
way on both sides of the house large
enough to service units 2 and 3.
d) Build the elevator and the secondary
stairway on the back right comer, next to
the Garden Level.
e) Put the parking closer to the building,
designating 6 spaces, one for each unit,
next to the stairs leading up to the
elevator/ stairway door.
i) This design would reduce the
walking distance for the nearest cars
to enter the door to about 26 feet
with a rise of 12 feet.
3)Concem:
a) If potential buyers are like me I would
be furious to realize after I purchase a
unit that the walking distances were as
they have been described.
COMPARISON OF INTERIOR SOUARE FOOTAGE OF
162 FEDERAL STREET AS DETERMINED BY THE SALEM CITY ASSESSOR VS. THAT
COMPUTED BY THE DEVELOPER
Salem Assessor
Basement NA V3,705 Square Feet
First Floor 4,202 Square Feet� 4,394 Square Feet
Second Floor 3,573 Square Feet- 3,705 Square Feet
Third Floor 2,53 7 Square Feet�3,705 Square Feet
Attic NA / 805 Square Fe
Totals 10,312 Square Feet 16,359 Square Feet
61�z
31
COMPARISON OF INTERIOR SQUARE FOOTAGE OF
162 FEDERAL STREET WITH 95 FEDERAL AND 7 CARPENTER STREET*
162 Federal Street
First Floor 4,202 Square Feet
Second Floor 3,573 Square Feet
Tbird Floor 2,537 Square Feet
10,312 Total Square Feet
95 Federal Street—Former Nursing Home-4 Units
Unit No. 1 3,866 Square Feet
Unit No. 2 1,170 Square Feet
Unit No. 3 1,290 Square Feet
Unit No. 4 1,227 Square Feet
7,552 Total Square Feet
7 Carpenter Street—Former Nursing Hom"Units
Unit No. 1 2,701 Square Feet
Unit No. 2 1,882 Square Feet
Unit No. 3 2,933 Square Feet
Unit No. 4 2,455 Square Feet
9,971 Total Square Feet
*All measurements are taken from Salem Assessor's Records
COMPARISON OF INTERIOR SQUARE FOOTAGE OF
162 FEDERAL STREET WITH FOLLOWING PROPERTEES:
A. Federal Street Between North and Flint Streets
Address Owner/Description Total Units Total Square Feet
103 Federal Street Pitman I Unit 4,806 Square Feet
22 Beckford Street Burns 1 Unit 3,372 Square Feet
106 Federal Street Frary I Unit 3,287 Square Feet
111 Federal Street Neely/Sullivan 1 Unit 3,594 Square Feet
113 Federal Street Lindeman 2 Units 2,059 Square Feet—Unit No. 1
2,500 Square Feet—Unit No. 2
4,559 Total Square Feet
115 Federal Street Melis/Ingraham 1 Unit 3,428 Square Feet
120 Federal Street Lebovici/Twohey I Unit 3,336 Square Feet
122 Federal Street Lebovici/Twohey I Unit 2,764 Square Feet
121 Federal Street Duguay--Greek Revival I Unit 3,730 Square Feet
123 Federal Street McGuire--Greek Revival I Unit 4,124 Square Feet
135 Federal Street Moran--Opp. Carpenter St. I Unit 6,151 Square Feet
141 Federal Street Brayton/Gregory 1 Unit 4,406 Square Feet
144-46 Federal Street LaRoche 2 Units 5,452 Total Square Feet
145 Federal Street Southeast Comer of 4 Units 1,286 Square Feet—Unit No. I
Federal and Flint Streets 1,305 Square Feet—Unit No. 2
1,205 Square Feet—Unit No. 3
1,142 Square Feet—Unit No. 4
4,938 Total Square Feet
B. Federal Street Between Flint and Boston Streets
170 Federal Street Gardner I Unit 3,456 Square Feet
174 Federal Street Gray Greek Revival 2 Units 2,221 Square Feet—Unit No. 1
Imm/Misianc, 1,716 Square Feet—Unit No. 2
3,937 Total Square Feet
176 Federal Street Gray Greek Revival I Unit 4,830 Square Feet
177-79 Federal Street Olive Brick Building 5 Units 7,562 Square Feet
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