9-11 FRANKLIN STREET - ZBA (4) q-il ��w�l�l�� s+-
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GOLDBERG
Jay D. Goldberg
Partner
Harbor Place
7 Rantoul Street.Suite 1008
Beverly,MA 01915
w .goldbergpropertiesre.com
--tel•-978-922-0800.fax:978-922-0833
jgoldberg@goldbergpropertiesre.com
1
This Notice filed with Salem City Clerk on:
NOTICE OF APPEAL FOR JUDICIAL REVIEW OF
ZONING DECISION �) DEC 1 b A C�
UNDER MASS. GENERAL LAWS
CHAPTER 40A SECTI17 CITY CLERK SAL
ON EM,MASS.
PrroPert Parcel of land known as 9-11 Franklin Street, Salem, MA
Record Owners: Mardee J. Goldberg, Trustee of Gerren Realty Trust 11 u/d/t dated
February 17, 2006, by deed also dated February 17, 2006 as recorded at
Essex South District Registry of Deeds Book 25510, Page 384.
Zoning Decision
Appealed: This an appeal of the Decision of the of City of Salem Board of
Zoning Appeals dated November 30, 2011, said Decision having
been filed with the City Clerk for the City of Salem, MA on
November 30, 2011 (copy attached).
The Appellants are: Jonathan Pitts, Jennifer Chandler Pitts, Judy A. French, Dorothy Healey
Lemelin, Mary L. Woodcock, Trustee, David M. Sirois, Ruth Hajer,
Kathleen Meadowcroft, Paul Meadowcroft, Joseph M. Murphy, Trustee,.
Patricia R. Murphy, Trustee, Leslie Limon, James Treadwell, Jacqueline
Sealund
et al, as more specifically identified in the Verified Complaint
referred to hereafter.
Superior Court Case: A Verified Complaint appealing the Zoning Board's Decision pursuant to
Mass. General Laws Chapter 40A, Section 17, has been filed with the
Massachusetts Land Court Department of the Trial Court of
the Commonwealth of Massachusetts on Dec. 15, 2011, and docketed by
the Court as Case No. I 1 MISC 456958 - AHS.
A copy of that Verified Complaint as filed with the Land Court is
attached hereto.
Filed bv: William F. Quinn, Esq.
Tinti, Quinn, Grover& Frey, P.C.
27 Congress Street, Suite 414
Salem, MA 01970
(978) 745-8065
Counsel for the Plaintiffs filing the appeal
William F. Quinn BRO N -409300
-- — -- — --
2011 DEC I b A 4 i 9
CITY CLERX,SALEM• MASS.
Land Court Iocation
Oil
Receipt, 53646 irate 1211512 ,
-
Case Number it-f1ISC 456958
Description 11 MISC 456958 Jonathan Fitt: Trus
tee of the 27 Foster,:Street fealty Trust v. Rebe
eca Curran Member.',O{,the Salem Zoning Board..of.A
ppeals SANDS
Received From Ouinn Jr., Esq., William F
On Behalf. Of Tonathan Pitts trustee of the El 1-
Oster Street Realty Trust
Payrent Type Amount Reference
Check. 2 55.00 5754
Applied Type Amount
Cost L55.08
Change ,00
Balance .due .00
y3a27 PM Clerk MALET"t Trans gate 121151201
1
Co®idents
i
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. LAND COURT DEPARTMENT ,/
CIVIL ACTION NO. // /�G 7.S�gs'r
/4h's
JONATHAN PITTS, JENNIFER CHANDLER
PITTS, JUDY A. FRENCH, DOROTHY HEALEY
LEMELIN, DIANE ROBICHAUD, WALTER T.
KOSEK, LUCIE M. LOSEK, DARLENE `- o
r� rn
PALAZZI,DAVID M. SIROIS,
RUTH HAJER, KATHY MEADOWCROFT, y^ a,
PAUL MEADOWCROFT,JOSEPH M. MURPHY AS m D
TRUSTEE OF THE 27 FOSTER STREET REALTY :z
TRUST, PATRICIA R. MURPHY AS TRUSTEE n 'Q
OF THE 27 FOSTER STREET REALTY TRUST, w
CD
LESLIE LIMON,JAMES TREADWELL AND
JACQUELINE SEALUND,
PLAINTIFFS
V.
REBECCA CURRAN, RICHARD DIONNE,
ANNIE HARRIS, BONNIE BELAIR, JAMIE
METSCH,AND JAMES TSITSINOS, in their
capacity as the members of and constituting the
City of Salem Board of Zoning Appeals, AND
MARDEE J. GOLDBERG AS TRUSTEE OF
GERREN REALTY TRUST II,JAY GOLDBERG
d/b/a GERREN REALTY TRUST AND JERMAINE
ANDERSON d/b/a LOYAL CANINES,
DEFENDANTS
VERIFIED CIVIL COMPLAINT
INTRODUCTION
This is a statutory appeal pursuant to M.G.L. Chapter 40A, Section 17, by several
abutters and parties,in interest_to-the Decision-by-the-defendants as-theYconstitute theCity of
Salem Board of Zoning Appeals (Zoning Board) dated November 30, 2011 by which the Zoning
Board granted a Special Permit to allow the defendant to convert a portion of his an existing non-
conforming commercial property located at 9-11 Foster Street, Salem, MA(the "Subject
Property"), which is located in an R-2 residential zoning district, to a new and different non-
conforming use as a so-called "Doggy Day Care/Training"business. The plaintiffs allege that
this new use is inconsistent with the purposes and intentions of the City of Salem Zoning
Ordinance as they apply to the R-2 Zoning District (the "Ordinance"), that such use will cause f
damage to their property interests and rights, and will be more detrimental to the their them and
their properties than the existing use, and that the Zoning Board acetd arbitrarily, capriciously
against the overwhelming weight of evidence presented to it and exceeded its authority by
issuing the Special Permit under such circumstances and further, that the defendant failed to
consider or enforce the off-street parking requirements for the defendants' use, which would
require a variance from the off-street parking requirements, which was neither sought nor
granted.
A certified copy of the Decision as filed with the Salem City Clerk on November 30
2011 is attached as "Exhibit 1"to this Complaint.
PARTIES
1. Plaintiff Jonathan Pitts owns and resides at property located at 24R Foster Street,
Salem, MA, which direct abuts to the Subject Property, and is a"party in interest'
included on the list of abutters issued to the ZBA by the City of Salem Tax Assessors
("list of abutters").
Eno
2. Plaintiff Jennifer Chandler Pitts, Jonathan's wife, is also owns and resides at 24R
Foster Street and is also a"party in interest"included on the City's list of abutters.
3. Plaintiff Judy A. French owns and resides at property at 16 Foster Street, Unit#2,
Salem, MA, which directly abuts the Subject property, and is a"party in interest"
included on the list abutters.
4. Plaintiff Dorothy Healey Lemelin owns and resides at property located at
Rear 15 Franklin Street, Salem, MA, and is a"party in interest"included on the list of
abutters.
5. Plaintiff Diane Robichaud owns and resides at property located at 7 Foster Street,
Salem, MA and is a"party in interest"as an abutter to an abutter to the Subject
Property.
6. Walter T. Kosek owns and/or resides at property located at l OR Foster Street, Salem,
MA and is a"party in interest"included on the list of abutters.
7. Lucie M. Kosek owns and/or resides at property located at l OR Foster Street, Salem,
MA and is a party in interest included on the list of abutters.
8. Darlene T. Palazzi resides at IOR Foster Street, Salem, MA and is a"party in interest"
as her residence is included on the list of abutters.
9. Plaintiff David M. Sirois resides at the property at 24 Foster Street, Salem, MA and is
a"party in interest"as an abutter to an abutter to the Subject Property.
10. Ruth Hajer resides at property at 24 Foster Street, Salem, MA and is a"party in
interest"as a resident of an abutter to an abutter to the Subject Property.
11. Plaintiff Kathy Meadowcroft resides at thero e
p p rty located at 22 Foster Street,
Salem, MA which property directly abuts the Subject Property, and is a"party in
interest"included on the list of abutters.
12. Plaintiff Paul Meadowcroft resides at the property located at 22 Foster Street, Salem,
MA which property directly abuts the Subject property, and is a"party in interest".
13. Plaintiff Joseph M. Murphy, Trustee of The 27 Foster Street Realty Trust owns and
resides at the property located at 27 Foster Street, Salem, MA which property abuts
and abutter of the Subject Property, and is a"party in interest".
14. Plaintiff Patricia R. Murphy, Trustee of The 27 Foster Street Realty Trust owns and
resides at the property located at 27 Foster Street, Salem, MA, which pioperty abuts
and abutter of the Subject Property, and is a"party in interest."
15. Plaintiff Leslie Limon owns and resides at property near the Subject property and
located at 18 Southwick Street, Salem,MA.
16. Plaintiff James Treadwell owns and resides at property located at 36 Felt Street,
Salem,MA, which is in the neighborhood of the Subject Property.
17. Plaintiff Jacqueline Sealund owns and/or resides at property near the Subject property
and located at 1 Walter Street, Salem, MA.
18. Defendant Mardee J. Goldberg, Trustee of Gerren Realty Trust II u/d/t dated
February 17, 2006("Gerren Trust'), is the record owner and title holder to the
Subject Property by deed dated February 17, 2006 on record at Essex South District
Registry of Deeds Book 25510, Page 384 (Ex. 2).
19. Defendant Jay Goldberg d/b/a"Gerren Realty Trust"at 7 Rantoul Street, Beverly,
MA ("Jay Goldberg") apparently acted as agent for Defendant Goldberg, who made
and signed the Petition Form filed with the Zoning Board that resulted in the Decision
(Ex. 1).
20. Defendant Jermaine Anderson("Anderson") is an individual who claims to do
business as "Loyal Canines"at an unknown location on Highland Avenue, Salem,
MA,and is named in the Decision as the person and business to whom the Special
Permit was granted (Ex. 1).
I
21. THE PLAINTIFFS ARE ALL AGGRIEVED BY THE DECISION OF THE
ZONING BOARD GRANTING THE SPECIAL PERMIT DECISION THAT IS
THE SUBJECT OF THIS ACTION TO THE DEFENDANTS.
JURISDICTION
22. The Massachusetts Land.Court has original subject matter and personal jurisdiction
over this action and all parties hereto pursuant to Mass. G.L. Chapter 40A, -
Section 17.
23. The appeal is timely, as it has been filed within twenty days from November 30, 2011
when the Decision was filed with the Salem City Clerk.
PRESUMPTION OF STANDING OF PARTIES IN INTEREST
24. Plaintiffs Jonathan Pitts,Jennifer Chandler Pitts, Judy A, French, Dorothy Healey
Lemelin, Diane M. Robichaud, Walter T. Kosek, Lucie M. Kosek, Darlene T. Palazzi,
Mary L. Woodcock as Trustee of Grand Realty Trust, David M. Sirois, Ruth Hajer,
Paul Meadowcroft, Kathleen Meadowcroft, Joseph Murphy as Trustee of
The 27 Foster Street Realty Trust, and Patricia R. Murphy as Trustee of The 27 Foster
Street Realty Trust,as all "parties in interest'entitled to notice under Ch. 40A;
Section 11, and, therefore, are all presumed to be "aggrieved"and to have legal
standing to prosecute this appeal.
ADDITIONAL ALLEGATIONS OF FACT AND LAW
25. The Gerren Trust owns certain land and buildings located at 9 Franklin Street in
Salem, MA. (the Subject Property).
26. The Subject Property is zoned Residential 2-Family(R-2) under the Ordinance and
accompanying Zoning Map, and it was so zoned on all dates relevant'to this case.
27. The properties of all of the plaintiffs are also contained in the same R-2 Zoning
District as the Subject Property, and were located in that District at all times relevant
to this case.
28. The purposes of the Ordinance, and the interests of it inhabitants that it protects and
regulates, as specified in Section 1.0 thereof, include the health, safety, convenience
and welfare of the inhabitants, lessening congestion in the streets,preservation of
health; to secure safety from fire and other dangers, to prevent overcrowding of land,
to avoid undue concentration of population, to conserve the value of land and
buildings, to encourage the most appropriate use of land throughout the City, to
preserve open space and conservation of natural resources, to prevent pollution of the
environment and community blight, and ensure compliance with the master plan of
the City of Salem.
29. Virtually all commercial uses are prohibited in the R-2 Zone, and under Section 3.0 of
the Ordinance(`Use Regulations"), and its Table of Principal and Accessory Uses.
30. The Ordinance does not allow in that zoning district any "(A)nimal clinic,or hospital;
kennel"uses.
31. Section 10.0 of the Ordinance defines a"Kennel, Commercial"as "A commercial
establishment in which more than three (3) dogs or domesticated animals are housed,
groomed, bred, boarded, trained, sold located on at least five(5)acres of land."
32. The Decision allows a portion of the Subject Property as a "Doggy Day
Care/Training"facility, which is, in effect, a commercial kennel, without the lot size
otherwise required„and in a zoning district where it is specifically not allowed. ' ` t , i--_
_
33. The decision allows the facility to operate Monday through Friday from 7:00 A.M. to
7:00 P.M., and on unspecified (and unlimited) hours on weekends, and does not limit
the number of dogs that may be on the premises, indoors or outdoors at any one
(Ex. 1).
34. The Decision is inconsistent with, and adverse to the stated Purposes of the
Ordinance.
35. The Decision grants two Special permits to the Defendants, one allowing the physical
extension of a building non-conformity to allow construction and use of a 32' x 24'
vinyl fenced area as an outdoor area to contain the dogs, and the other to allow the
change of use from an allegedly existing and non-conforming flooring business to the
new non-conforming Doggy Day Care/Training business.
36. Under Section 3.3.3 of the Ordinance, the Zoning Board may grant a special permit to
extend, alter or change a nonconforming structure only if it determines that"such
extension, alteration or change shall not be substantially more detrimental than the
existing non-conforming structure to the neighborhood."
37. Under Section 3.3.2 of the Ordinance the Zoning Board may award a special permit
to extend an existing nonconforming use, or change a nonconforming use`only if it
determines that such change ... shall not be substantially more detrimental than the
existing nonconforming use to the neighborhood."Further, as to a change of use, the
Section states"(T)he following types of changes to nonconforming uses may be
considered by the Board of appeals: .. (2) Change from one nonconforming use to
another, less detrimental,.nonconforming use."
38. As to the issuance of any and all special permits, the Ordinance also requires: '
9.4.2 Criteria. Special permits shall be granted by the Special Permit Granting
Authority, unless otherwise specified herein, only upon its written determination
that the adverse effects of the proposed use will not outweigh its beneficial
impacts to the City or the neighborhood, in view of the particular characteristics of
the site, and of the proposal in relation to that site. In addition to any specific factors
that may be set forth in this Ordinance, the determination shall include
consideration of each of the following:
1. Community needs which are served by the proposal;
2. Traffic flow and safety, including parking and loading;
3. Adequacy of utilities and other public services;
4. Neighborhood character,
5. Impacts on the natural environment, including view; and
6. Potential economic and fiscal impact, including impact on City services, tax base
and employment.
39. The Application for the Special Permits as filed by the Defendants is attached (Ex. 3).
40. The Zoning Board conducted a public hearing on the application on or about
November-16,201-1. _-- -- - —
41. At the hearing a petition and oral testimony from a substantial number of abutters,
including several of the plaintiffs herein, and other residents of the neighbor were
submitted in opposition to the application, and the City Councilor representing the
neighborhood also spoke in opposition.
42. At the hearing, defendant Anderson, as the manager of the kennel testified that there
will be spaces for 50 dogs at the facility on a daily basis, and that he will come and go
during the day to transport the dogs in a bus; some dog owners will drop off and pick
up their dogs. He testified that the outdoor fenced area will be able to contain a
number of dogs at a time, and will be vinyl sided and opened to the outdoors at the
top. I , . I � w = . . , Z , .
43. Defendant Jay Goldberg stated to the Zoning Board that dog wastes will be kept in an
outdoor dumpster with a cover on the property, which he claims will be emptied
"every day", although this is not required, as it was not made a condition of the
Decision.
44. Although not reflected in the Decision, at least one of the plaintiffs also believes that
Anderson stated his intention to install an outdoor dog run on the grounds of the
Subject property that would run to one of the property boundaries.
45. Use of the Subject Property for a nonconforming Doggy Day Care/Training facility
will be substantially more detrimental to the plaintiffs and the neighborhood than the
existing use.
46. This new use will generate objectionable and increased noise from the barking of the
dogs, the voices of dog handlers and the sounds of vehicles transporting them 12
hours per day on Mondays through Fridays, and more unspecified (and unlimited)
hours on weekends, which noise will be much greater in occasion and volume, and
different in kind from any noise generated by the existing use.
47. The new use will generate substantial and continuing offensive odors from the dogs,
their foods and excretions, all of which will be regularly perceptible to abutters and
neighbors. Some children and adults fear dogs, and will not want to reside next door
or near to a facility where so many dogs are located seven days per week.
48. The presence of food and waste associated with the dogs will attract rodents and other
pests to the Subject Property and neighborhood.
49. Any dogs that escape while attending the facility may cause a danger of ha mi to the
residents of the neighborhood and traffic in the ways adjacent to it.` ` ` x
50. The new use will generate increased and objectionable traffic volume, congestion and
hazards in the neighborhood and on the public ways adjacent to the homes of the
plaintiffs.
51. The odors and noise will pollute and be blight on the neighborhood.
52. The new use will constitute an overcrowding of the land, bringing an undue
concentration of people and dogs to the property on a regular basis.
53. The reasons stated by the Zoning Board in its decision for granting the special permits
are not supported by the evidence heard at its public hearing, do not meet the
requirement of the Ordinance for granting the permits, and are insufficient as a matter
of law to support the Decision.
54. The overwhelming evidence at the public hearing was that the new use will be more
detrimental to the plaintiffs and to the neighborhood than the previous nonconforming
use.
55. There was no significant evidence that the Zoning Board could rely upon to find that
the new use would be less detrimental that the existing use.
56. The conditions imposed in the Decision are inadequate to protect the plaintiffs from
these detrimental effects.
57. For all the reasons previously alleged, the new use and its objectionable effects will
damage the plaintiffs legal rights and property interests by reducing the market values
of the properties, and impairing and detract from the plaintiffs' quiet enjoyment of
their properties, and their quality of life.
REQUESTS FOR RULINGS OF LAW
58. The Decision is based upon legally untenable grounds because the Zoning Board
applied the wrong standard in considering the application. The provisions of the
Ordinance require that for such a change from one nonconforming use to another, the
Board must find the new use to be "less detrimental"to the neighborhood,than the
existing use. In its decision, the Zoning Board's Decision recites and applies the
wrong stand i.e. that relief may be granted (doggie day care/training) use use will be
"not substantially more detrimental than the previous nonconforming use ... to the
neighborhood." .
59. The findings of the Zoning Board as stated in the Decision are inadequate to support
the Decision as a matter of law, because the Decision contains no findings at all as to
the whether the proposed use is in harmony with the general purposes and intent of
the Ordinance.
60. The findings of the Zoning Board are inadequate as a matter of law,because it does not
make the findings required under Section 9.4.2 of the Ordinance that"Special permits
shall be granted ... only upon its written determination that the adverse effects of the
proposed use will not outweigh its beneficial impacts to the City and neighborhood, in
view of the particular characteristics of the site,and the proposal in relation to that site"
and no findings relating to or statement that the Board considered the six(6)criteria
(Community needs,traffic safety,adequacy of utilities,neighborhood character,impacts
on the natural environment,potential economic and fiscal impact)that the Ordinance
requires it to consider.
61. The Decision by the Zoning Board was not supported by the any material evidence that
supported its findings and Decision or meet the requirements of the Ordinance for
r granting such relief.
62. For all or any one of the above rulings of law,the Decision was not in accordance with
applicable law or the requirements of the Ordinance was arbitrary, capricious and
exceeded the Zoning Board's authority,and the Decision is therefore be annulled.
63. Further,under the Ordinance,the Gerren Trust,as applicant and owner,is required to
provide a specified number of dedicated on-site parking spaces for its employees and
customers,but no evidence whatsoever was submitted by the applicant to the Zoning
Board as to.the number of on-site parking spaces that would be dedicated to applicant's
use,or the size,location or design of such parking spaces,or that the applicant met these
parking requirements.
64. The Zoning Board's action in approving the special permits without any evidence that
the applicant would provide the legally required off-street parking spaces for the new use
on the Subiect Property also was arbitrary,capricious and exceeded their authority, and
constitutes additional grounds that the Decision is hereby annulled
WHEREFORE,the plaintiffs respectfully request that this Court grant them relief as
follows:
1. Annul the Decision of the Zoning Board
2. Enter an Order denying the defendants the special permits,or direct the Zoning
Board to deny them;
3. Award the plaintiffs their costs and reasonable attorney's fees against those
defendants who are not members of the Zoning Board,and
4. Grant such other relief as the Court deems appropriate.
Respectfully submitted,
Jonathan Pitts,et al
ByZeir torney
William F.Quinn,BBO No. 409300
Tinti,Quinn, Grover&Frey,P.C.
27 Congress Street, Suite 414
Salem,MA 01970
Tel: 978-745-8065
Fax: 978-741-3415
Email: williamf oLcom
VERIFICATION
As a plaintiff in this matter, I hereby state that I have read this Verified Civil Complaint,
that I am familiar with the subject matter hereof, and I hereby state that as to all matters of fact
therein alleged, based upon personal knowledge and information and records supplied to me, the
same are true, and as to all matters alleged upon information and belief, I do believe the same to
be true.
Signed and swom under the penalties of perjury this 15a'day of De mber, 201
_ Jonathan-Pitts— - --- ---
�Y�ticodolr,�o! CITY OF SALEM, MASSACHUSETTS
Ilk a,. BOARD OF APPEAL
120 WASHINGTON STREET, 3RD FLOOR
SALEM, MASSACHUSETTS 01970
TELEPHONE: 978-745-9595
pO�P FAX: 978-740-9846 -
KIMBERLEY DRISCOLL
MAYOR
November 30, 2011
Decision
Cry of Salem Zoning Board of Appeals
Petition of JAY GOLDBERG, GERREN REALTY TRUST requesting Special
Permits under Sec. 3.3.2 of the Salem Zoning Ordinance to extend a nonconforming
structure and to change one nonconforming use to another nonconforming use, in
order to open a Doggy Daycare/Training Business at 9-11 FRANKLIN ST, and to
construct a 32'.x24' vinyl fenced area (Bl and R2 Zoning Districts).
A public hearing on the above Petition was opened on November 16, 2011, pursuant to
Mass General Law Ch. 40A, § 11. The hearing was closed on November 11, 2011 with the
following Zoning Board of Appeals members present- Rebecca Curran,Richard Dionne,
Annie Harris,Jamie Metsch, and Jimmy Tsitsinos (altemate).
Petitioner seeks Special Permits pursuant to Sections 3.3.2 and 3.3.3 of the City of Salem
Zoning Ordinances.
Statements of fact:
1. Jay Goldberg presented the,petition at the hearing. Also present was Jermaine
Anderson,proprietor of Loyal Canines, the business that is proposed as a tenant for
9-11 Franklin Street.
?. In a petition date-stamped October 26,2011,petitioner requested Special Permits to
extend a nonconforming structure and to change one nonconforming use to another
nonconforming use, in order to open a Doggy Daycare/Training Business at 9-11
Franklin Street, and to construct a 32:x24'vinyl fenced area.
3. Currently, there are several comtuercial uses in the building on 9-11 Franklin Street,
including an automotive business, a martial ars school, and a transmission shop.
The space for which Loyal Canines is proposed was most recently a flooring
business.
4. At the meeting on November.16, 2011, several residents spoke in opposition to the
proposal,citing concerns about the potential noise and smell from the dogs, traffic
congestion, cleanliness, properly values, nonconforming uses already on the site, and
neighborhood safety. Two residents submitted letter n opposition to the petition,_______
--- inelu�ng Waid 6 CouncilloiPaul Preue— 26 Tremont Streee who also spoke irr— —
opposition at the hearing. Neighbors also submitted a petition against the project
with signatures from neighbors.
r
5. Also at the November 16 hearing, several clients of Mr. Anderson spoke in favor of
the project, attesting to his professional manner and skill with dog training.
6. At the hearing, Mr. Anderson stated that his dogs are trained not to bark.
7. At the hearing, Mr. Goldberg stated that the previous use, a flooring business, had
tricks loading and unloading, and forklifts operating, which created beeping noises
when backing up.
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. Desirable relief may be granted, since the proposed doggie day care/training
use is not substantially more detrimental than the previous nonconforming
use (a flooring business) to the neighborhood.
2. 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:
1. A Special Permit under Sec. 3.3.2 of the Salem Zoning Ordinance to change one
nonconforming use to another nonconforming use is granted. The Special Permit is
granted for a period of nine (9) months from the date of issuance of a Certificate of
Occupancy, and is valid for use only by Loyal Canines, run by Jermaine Anderson.
2. A Special Permit under Sec. 3.3.3 of the Salem Zoning Ordinance to extend a
nonconforming structure is granted. The Special Permit is granted for a period of
nine (9) months from the date of issuance of a Certificate of Occupancy.
In consideration of the above, the Salem Board of Appeals voted, five (5) in favor (Curran,
Hams, Dionne, Tsitsinos and Metsch) and none (0) opposed, to grant petitioner's request
for Special Permits subject to the following terms, conditions, and safeguards:
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 Corrunissioner.
3. All requirements of the Salem Fire Department relative to smoke and fire
safety-shall-be_strictlyadheredao,
4. Petitioner shall obtain a building permit prior to beginning any construction.
3
7 A
Certificate of Occupancy is to be obtained.
5. Petitioner is to obtain approval from any City Board or Commission having
jurisdiction including, but not limited to, the Planning Board.
7. Special Permits are granted for a period of nine (9) months from the date of
issuance of a Certificate of Occupancy.
8. Hours of operation for the doggie day care are limited to 7:00 a.m. to 7:00
p.m.,Monday through Friday. Dog training only is allowed on weekends.
9. Special Permit for use is granted only to Loyal Canines, run by Jermaine
Anderson.
10. Applicant is to contact the Board of Health and Animal Control Officer
prior to opening the business.
Rebecca Curran, Chair
Salem Board of Appeals
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD
AND THE CITY CLERK
Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts
General Laws Chapter 40,4, 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.
DEC 13 2011
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1� DEED 3006033000400 805510 Pg:384
03/30/2000 13:14:00 TRO Pp 1/2
I, MARDEE J. GOLDBERG, Successor Trustee of the GERREN REALTY TRUST u/d/t
dated November 12, 1973 and recorded with the Essex South District Registry of Deeds in Book
6028, Page 98, of 14 Lawrence Street, Beverly, Essex County,Massachusetts,
for consideration of one dollar and 00/100 (S 1.00)paid,
grant to MARDEE J. GOLDBERG, Trustee of the GERREN REALTY TRUST H, u/d/t
dated 12&U" 2006 and recorded with the Essex South District
Registry of Deeds herewith, whose mailing address is 14 Lawrence Street, Beverly,
m Massachusetts,
u
a
A with QUITCLAIM COVENANTS,
u
m a certain parcel of land on Franklin Street in Salem, County of Essex, bounded and described as
follows:
r^
Beginning on Franklin Street at land now or late of Ice Utilities,Inc., and thence running
v
A SOUTHWESTERLY by Franklin Street, 199.25 feet to land now or late of Waters,
turning and running
v
H
y NORTHWESTERLY by land now or late of Waters, 307.65 feet to land now or late of
aSmith; thence turning and running
N -
NORTHEASTERLY by land now or late of Smith, 50.64 feet; thence turning and
w
running
NORTHWESTERLY by land now or late of Smith, 28.03 feet to land now or late of Lee;
thence turning and running
NORTHEASTERLY by land now or late of Lee, O'Rourke and Branders to a bound
stone; thence turning and running
SOUTHEASTERLY by land formerly of Mary Koen, 125.04 feet to land now or late of
the Ice Utilities, Inc.; thence turning and running
SOUTHWESTERLY by land now or late of the Ice Utilities, Inc., 88.84 feet;thence
turning and running
SOUTHEASTERLY by land now or late of the Ice Utilities, Inc., 166.56 feet to Franklin
Street and the point begun at.
Return to Box 24
� X • Z
Being the same premises conveyed to Paul Gerren, Trustee of the Genen Realty Trust by Deed
dated November 12, 1973, and recorded with the Essex South District Registry of Deeds in Book
6028, Page 100. Upon the resignation of Paul Gerren as Trustee,Mardee J. Goldberg accepted
appointment as Successor Trustee on March 18, 1987, under said Declaration of Trust.
Witness my hand and seal this Aday of
2006.
M EEJ OLDBER UCCE
TRUSTEE SOR
GERREN REALTY TRUST
COMMONWEALTH OF MASSACHUSETTS
Essex, Ss.
2006
fh
On this / 7 day of F' 2006, before me the
personally no
appeared MARDEE J. GOLDBERG, Successo Trustee as aforesaid,proved public, me
throw D tarproved
t
gh satisfacto evidence of identification, whit was were _
to be the person whose name is signed on the preceding docum nt, and acknowledged to me that
she signed it voluntarily for its stated purpose.
ca°CK'*
Y•ct
�t;ze t otary Public: Kathryn Crockett Ly
Z My commission expires: 11/17/2011
�Ry
2
ZONING BOARD OF APPEALS
car CITY OF SALEM,MASSACHUSETTS PEON FORM
.', ZONING BOARD OF APPEALS
120 WASHINGTON ASHINGTON STREET San FLOOR _
SALFK MASSACHUSETTS 01970
Thomas Sc Pierre,Director of Inspectional Services _
c 978-619_5641/E 978-740-9846
Danielle Mc h • '
Krug t,Staff Planner -�
TO THE BOARD OF APPEALS: c 978-619-5685/E 976-740-0404 - r,j
The Undersigned represent that he/she is/are the owners of certain parcel of land located at:
Address: 9-11 Franklin Street
Zoning District: B-1/R-2
An application is being submitted to the Board of Appeal for the following reasou(s): This statemem must
describe what you propane to bui/r�rhe dimensions,the zone property is ur,mrd the zoning requirements. Ezample-
/mn proposing to construct a!0'x 10'one story addidon to my home located at 3 Solent(erre.in the R-1 Zoning
Drs(n'ct The Zoning Ordinmrce requires the minimum depth ojthe rem•yard to be 30 jeer The current depth of my
rear yard is 32 jeer,the proposed addition would reduce the de th o the rem•
P j yard to 21 feet
We are re vestin a s ecial ermit for the commercial use to en a Do
Da care/Trainin Business at 9-L1 Franklin Street, Salem MA. There will
be no chan ea to the foot tint of the building. We would he
requesting a
fenced in section measuring 24' x 32' x 6' high made of vinyl. ,See enclosed
plot plan.
For this reason I am requesting.
( )Variance(s)from provisions of Section of the Zoning Ordinance,s
pecifically from
What is allowed is (/.e,minimum depth ofrearyard).
(/f?sq JT?stories? %?), and what I
am proposing is -
(/t?sqft?stories?%?)_
(r)A Special Permit under Se doO.3.2 of the Zoning Ordinance in order to change or
extension of the use.
( )Appeal of the Decision of the Building Inspector(described below):
The Current Use of the Property Is: Are the lot dimensions included on the plan?
(example.'71vo Family Home) various commercial (rq yes ( )No n/a because
the Project to be The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem Zoning Ordinance and allow
Practical difficulty constructed s s ry the plans submitted,as the enforcement of said Zoning By-Laws would involve
dem ry 'hardship to the Undersigned and relief may be granted without substantially
— - _ gating hornthe.intentandpurpose-Of the.Zoning-Ordin e - --------
i9x. 3
ZONING
TBOARD
7O7F�iAPPE�7A*LSr
The following written statement has been submitted with this application: rL i l i l�l� F�ltivi
( )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 or the natural environment,including drainage;
e) Neighborhood character,and
f) Potential fiscal impact,including impact on City tan 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 ofprevioas applieaf(ons to the petitioner or his
representative.
Ifdifferenf frorrrpedfioner:
Petitioner. Gerren Realty Trust
Say Goldberg �Oe
Address: 7 Rantoul Street Address:
Suite 100B Beverly, MA
Telephone: 978-922-0800 Telephone:
Signature
Signature IAIaclel consent lettef is also acceptable)
10/26/11
Date Date
Ifdifferent from peddaner
A TRUE
ATTEST Representative:
Address:
Telephone:
Srgnature
Date
DATE SUBMITTED TO
BOARD OF APPEALS:
CITY CLERK
7Rrs original application must be filed witk1he_City Clerk -
PLOT PLAN OF LAND IN SALEM, MASS.,
DATE: MAY 11., 1995
SCALE: 1"=60-
NOTE: This plan was compiled by a tape survey and
not an instrument survey, therefore all ofsetts
shown are approximate.
BAYSTATE SURVEYING ASSOCIATES
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10%06�� 234 CABOT STREET, BEVERLY, MASS. , 01915
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XDNDIT4 CITY OF SALEM9 MASSACHUSETTS
BOARD OF APPEAL
y
120 WASHINGTON STREET, 3RD FLOOR-
d2 SALEM, MASSACHUSETTS 01970
° ..
TELEPHONE: 978-745-9595
9nnNE D� FAX: 978-740-9846
KIMBERLEY DRISCOLL
it R!
MAYOR 2011 H f '1 -3
50 n ? _)8
November 30, 2011 Cl?Y C!_r; ; ,
Decision
City of Salem Zoning Board of Appeals
Petition of JAY GOLDBERG, GERREN REALTY TRUST requesting Special
Permits under Sec. 3.3.2 of the Salem Zoning Ordinance to extend a nonconforming
structure and to change one nonconforming use to another nonconforming use, in
order to open a Doggy Daycare/Training Business at 9-11 FRANKLIN ST, and to
construct a 32'x24'vinyl fenced area (B1 and R2 Zoning Districts).
A public hearing on the above Petition was opened on November 16, 2011, pursuant to
Mass General Law Ch. 40A, 5 11. The hearing was closed on November 11,2011 with the
following Zoning Board of Appeals members present: Rebecca Curran,Richard Dionne,
Annie Harris,Jamie Metsch, and Jimmy Tsitsinos (alternate).
Petitioner seeks Special Permits pursuant to Sections 3.3.2 and 3.3.3 of the City of Salem
Zoning Ordinances.
Statements of fact:
1. Jay Goldberg presented the petition at the hearing. Also present was Jermaine
Anderson, proprietor of Loyal Canines, the business that is proposed as a tenant for
9-11 Franklin Street.
2. In a petition date-stamped October 26, 2011,petitioner requested Special Permits to
extend a nonconforming structure and to change one nonconforming use to another
nonconforming use,in order to open a Doggy Daycare/Training Business at 9-11
Franklin Street, and to construct a 32'x24'vinyl fenced area.
3. Currently,there are several commercial uses in the building on 9-11 Franklin Street,
including an automotive business, a martial arts school, and a transmission shop.
The space for which Loyal Canines is proposed was most recently a flooring
business.
4. At the meeting on November 16, 2011,several residents spoke in opposition to the
proposal, citing concerns about the potential noise and smell from the dogs,traffic
congestion, cleanliness,property values, nonconforming uses already on the site, and
neighborhood safety. Two residents submitted letters in opposition to the petition,
including Ward 6 Councillor Paul Prevey, 26 Tremont Street, who also spoke in
opposition at the hearing. Neighbors also submitted a petition against the project
with signatures from neighbors.
2
5. Also at the November 16 hearing,several clients of Mr. Anderson spoke in favor of
the project, attesting to his professional manner and skill with dog training.
6. At the hearing,Mr. Anderson stated that his dogs are trained not to bark.
7. At the hearing,Mr. Goldberg stated that the previous use, a flooring business, had
trucks loading and unloading, and forklifts operating,which created beeping noises
when backing up.
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. Desirable relief may be granted, since the proposed doggie day care/training
use is not substantially more detrimental than the previous nonconforming
use (a flooring business) to the neighborhood.
2. 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:
1. A Special Permit under Sec. 3.3.2 of the Salem Zoning Ordinance to change one
nonconforming use to another nonconforming use is granted. The Special Permit is
granted for a period of nine (9) months from the date of issuance of a Certificate of
Occupancy, and is valid for use only by Loyal Canines, run by Jermaine Anderson.
2. A Special Permit under Sec. 3.3.3 of the Salem Zoning Ordinance to extend a
nonconforming structure is granted. The Special Permit is granted for a period of
nine (9) months from the date of issuance of a Certificate of Occupancy.
In consideration of the above,the Salem Board of Appeals voted, five (5) in favor (Curran,
Harris,Dionne, Tsitsinos and Metsch) and none (0) opposed,to grant petitioner's request
for Special Permits subject to the following terms, conditions,and safeguards:
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.
3
5. A Certificate of Occupancy is to be obtained.
6. Petitioner is to obtain approval from any City Board or Gomcnission having
jurisdiction including, but not limited to,the Planning Board. ,
7. Special Permits are granted for a period of nine (9) months from the date of
issuance of a Certificate of Occupancy.
8. Hours of operation for the doggie daycare are limited to 7:00 a.m. to 7:00
p.m.,Monday through Friday. Dog training only is allowed on weekends.
9. Special Permit for use is granted onlyto Loyal Canines, run by Jermaine
Anderson.
10. Applicant is to contact the Board of Health and Animal Control Officer
prior to opening the business.
Rebecca Curran, Chair
Salem Board of Appeals
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD
AND THE 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.
D. Healey Lemelin
15 R Franklin Street
92
Salem,MA 01970
ftme(978)745-9079
DHLemelln&eftn.nd
November 16,2011
City of Salem Massachusetts
Zoning Board of Appeals
120 Washington Street
3rd Floor, Room 313
Salem,MA 01970
Madam Chairperson,
RE: Petition of JAY GOLDBERG,GERREN REALTY TRUST requesting Special
Permits under Sec.3.3.2 of the Salem Zoning Ordinance to extend a
nonconforming structure and to change one nonconforming use to another
nonconforming use,in order to open a Doggy Daycare/Training Business at
9-11 Franklin Street and,to construct a 32'x 24'vinyl fenced area(Bland R2
Zoning Districts).
I am one of the abutters of the property in the above-captioned petition and earnestly
request that this petition not be granted.
A facility such as the one proposed placed in a residential neighborhood would be a
neighborhood nuisance. This type of business would interfere with not only my Family but
also the several other abutting property owners in the ability to enjoy our property. The
possibility of complaints to City Officials regarding the excessive barking,the urine or other
odors,the potential for the spread of disease,and other conditions that are adverse to our
Community should also be taken into consideration.
Sincerely,
'V.We�
DomthyNeatey-Leme/in
November 16, 2011
Salem Zoning Board of Appeals
120 Washington Street
Salem, Massachusetts 01970
Attn: Rebecca Curran, Chair
Re: 9-11 Franklin Street
Dear Madame Chair& Members of the Board,
Please accept this written statement in lieu of my possible absence. I have another meeting
this evening with the Veteran's Council and I am unsure if I will be able to be present when this
matter is taken up by the Board.
I have spoken to several of the abutting neighbors whose properties overlook the area for the
proposed doggie-daycare/training center. I have reviewed the area myself and am very familiar with
the many quality of life issues which have impacted this residential neighborhood over the years.
Approving this special permit would only, yet again, add another type of business which would
create unnecessary noise for the neighborhood. The types of businesses which operate on Franklin
Street did so prior to the implementation of zoning in Salem, and as such, are considered"grand-
fathered in". Allowing for this type of business,where dogs would be allowed to run out back and
bark all day would only add to the numerous,obnoxious noises which are generated daily from the
string of businesses which operate throughout the day and evening.
For the sake of the neighbors and the preservation of their quality of life, I am strongly
opposed to the Board granting a special permit to allow this type of business to be established at the
proposed location.
pectfully yo
Paul C. Prevey
Councilor, Ward 6
CITY OF SALEM, MASSACHUSETTS
BOARD OF APPEAL
i
120Wast-uNc,ruuS1w_cr*SutH,NWSAn-nae'rts01970
'It7.Le:978-619-5685 • Nx:978-740-0404
Kimu..iw;y DRISCOLL
lAwoR
v
City of Salem Y
�
�Y Zoning Board of Appeals
978-619-5685
Will hold a public hearing for all persons interested in the petition of JAY GOLDBERG, GERREN/11
REALTY TRUST requesting Special Permits under Sec. 3.3.2 of the Salem Zoning Ordinance to extend a
nonconforming structure and to change one nonconforming use to another nonconforming use, in order to
open a Doggy Daycare/Training Business at 9-11 FRANKLIN ST, and to construct a 32'x24' vinyl
fenced area (Bl and R2 Zoning Districts).
Said hearing will be held on WEDNESDAY, November l6, 2011 at 6:30 p.m., 3`d floor, 120
WASHINGTON STREET ROOM 313. �
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CITY OF SALEM MASSACHUSETTS
BOARD OF APPEAL
�=t 120WAsiuNw"oNSMEEI *SiWiM,MASSAansEnS 01970 -
TY:EE:978-619-5685 ♦ FAx:978-740-0404
Kimm- f.LYDRiscou.
MAYOK
City of Salem
Zoning Board of Appeals
978-619-5685
Will hold a public hearing for all persons interested in the petition of JAY GOLDBERG, GERREN
REALTY TRUST requesting Special Permits under Sec. 3.3.2 of the Salem Zoning Ordinance to extend a
nonconforming structure and to change one nonconforming use to another nonconforming use, in order to
open a Doggy Daycare/Training Business at 9-11 FRANKLIN ST, and to construct a 32'x24' vinyl
fenced area (B1 and R2 Zoning Districts).
Said hearing will be held on WEDNESDAY, November 16, 2011 at 6:30 p.m., T-d floor, 120
WASHINGTON STREET, ROOM 313.
v r0p 0a Q06ebeccaCurran �
V11)0
Chair
o yo�S fo bu��
J
Iq
�u►cl� CFO -
Page 1 of I
French, Judy
Subject: FW: re
Petition Against Proposed Doggy Daycare/Training
Business Located
at 9. 1Tl Franklin St, Salem, MA
Name Signature Date Address Telephone
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