14 FRANKLIN STREET - ZBA 14 FRANKLIN STREET .B-5
CRAIG C. BRUNHAM
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Lcgitl Notice .,,
'r•CITY OF SALEM'
BOARD OF APPEAL
. 945-9595 Ext.381
7 WiIlhold a public hearing for
persons nterested'ih'the petihon'sub-
'nutted by CRAIG C. .BURN1EiAM,.'.
TRUSTEE-requesting a Special Per-
mit to expand legal.non-conforming:,"
useby construction of a building on
the property for the property located at
' 14 FRANKLIN STREET (R-5). Said
hearing to be held WEDNESDAY, I
APRIL 16, 1997 AT 6:o9 P.M., ONE i
SALEM GREEN,2nd Floor. .
4/9/97)Gary Barrett.Chairman
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of "ttlem, � Httssttcl�usetts
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jaQY ' nttra of :Aupeal
71 cl ea
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DECISION ON THE PETITION OF CRAIG C. BURNHAM, TRUSTEE REQUESTING q
SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 14 FRANKLIN STREET (B c�
0, �
A hearing on this petition was held April 16, 1997 with the following
Board Members present: Gary Barrett Chairman, Nina Cohen, Joseph
Ywuc, Richard Dionne and Arthur LeBrecque. Notice of the hearing was
sent to abutters and others and notices of the hearing were properly
published in the Salem Evening News in accordance with Massachusetts
General Laws Chapter 40A.
Petitioner is requesting.a Special Permit for a Change of Use for
Office and Merchandise storage for the property located at 14
Franklin Street (B-5) .
The provision of the Salem Zoning Ordinance which is applicable to
this request for a Special Permit is Section 5-3(j ) , which provides
as follows:
Notwithstanding anything to the contrary appearing in this Ordinance,
the Board of Appeal may, in accordance with the procedure and
conditions set forth in Sections 8-6 and 9-4, grant Special Permits
for alterations and reconstruction of nonconforming structures, and
for changes, enlargement, extension or expansion of nonconforming
lots, land, structures, and uses, provided, however,, that such
change, extension, enlargement or expansion shall not be
substantially more detrimental than the existing nonconforming use to
the neighborhood.
In more general terms, this Board is, when reviewing Special Permit
requests, guided by the rule that a Special Permit request may be
granted upon a finding by the Board that the grant of the Special
Permit will promote the public health, safety, convenience and
welfare of the City's inhabitants.
The Board of Appeal, after careful consideration of the evidence
presented at the hearing and after viewing the plans, makes the
following findings of fact:
1. Petitioner conducts a Marine Contracting business on the locus
property which was found to be a valid, prior non-conforming
use by the Land Court.
2. Petitioner purchased the property in 1992, and prior to this time
leased a portion of the subject property from a prior owner.
3. Peter Victory, 0 Lee Street, submitted a letter in support of the
petitioner.
4. Edward Ferris, 21 Naples Road, who conducts a auto recycling
DECISION OF THE CRAIG C.BURNHAM, TRUSTEE REQUESTING A SPECIAL PERMIT
FOR THE PROPERTY LOCATED AT 14 FRANKLIN STREET (B-5)
page two
salvage business on the property abutting the subject property,
spoke in favor of the petition.
5. Petitioner applied for and was issued a building permit to
construct a building for merchandise storage and office on the
subject property on November 14, 1995.
6. The proposed building is 130 feet in length by 30 feet in width
for a total of 3900 square feet on the first floor. The
mezzanine on the second floor of the building is 50 feet in
length by 30 feet in width or 1500 square feet for a total of
5900 square feet for the entire building.
7. On December 19, 1996, Petitioner was to ordered to cease & desist
all work and was furthered order to stop occupancy of the
building.
8. On March 10, 1997, Petitioner was notified by the Building
Inspector that the subject building was a violation of the Salem
Zoning Ordinance.
9. John Jennings, Building Inspector for the City of Salem,
testified that, based on his inspection of the building,less than
50% of the structure would be used for office space and the space
would be used for storage and warehousing of materials and
equipment.
10. Petitioner has been involved in several pending matters with the
City before the Land Court, Superior Court, District Court,
Conservation Commission, State Building Code, Board of Appeals,
concerning the use of the subject property.
11. The B-5 Zone which encompasses the subject property was created
in 1985, and the intent of creating such B-5 zone was to enhance
the appearance and environment of the North River area.
12. The issuance of the building permit on November 14, 1995 does not
legalize the building which was constructed in violation of the
Salem Zoning Ordinance.
13. Petitioner's proposed construction of the subject building
constitutes an enlargement of the prior non-conforming use,
and the intended use as a office, storage, and warehouse facility
is a change of use referring issuance of a Special Permit.
14. Petitioner's intended use of the building will be for warehousing
of marine construction material and only a portion of the
premises will be used for offices.
15. Petitioners construction of the proposed building and intended
use thereof is not in harmony with the intent and purpose of the
B-5 zoning district and Salem Zoning Ordinance.
On the basis of the above findings of fact, and on the evidence
presented, the Board of Appeal concludes as follows: �, a
K �
1. The Special Permit requested cannot be granted without c+
substantial detriment to the public good or without nullifying aw, c
substantially derogating from the intent of the district or the '!Co
purpose of the ordinance.
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DECISION OF THE PETITION OF CRAIG C. BURNHAM, TRUSTEE REQUESTING A
SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 14 FRANKLIN STREET (B-5)
page three
2. The granting of the Special Permit requested will not be in
harmony with the neighborhood and will not promote the public health,
safety,convenience and welfare of the City's inhabitants.
Therefore, the Zoning Board of Appeal voted unanimously 0 in favor,
and five (5) in opposition to the motion to grant the relief
requested. Having failed to garner the four affirmative votes
required to pass, the motion to grant fails and the petition for a
Special Permit is denied.
SPECIAL PERMIT DENIED
April 16, 1997 CSC
Gary Barrett, Chairman
Member, Board of Appeal
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 MGL Chapter 40A and shall be filed within 20 days after the
date of filing of this decision in the office of the City Clerk.
Pursuant to MGL Chapter 40A, Section 11, the Variance or Special
Permit granted herein shall not take effect until a copy of the
decision, bearing the certification of the City Clerk that 20 days
have elapsed and no appeal has been filed, or that, if such appeal
has been filed, that it has been dismissed or denied is recorded in
the South Essex Registry or Deeds and indexed under the name of the
owner of record or is recorded and noted on the owner's Certificate
of Title.
Board of Appeal
w
^o_ d
N
y J
L
8 Lee Street
Salem, MA 01970
11 April 1997
Mr. Gary Barrett, Chairman
Board of Appeal
City of Salem
One Salem Green
Salem, MA 01970
Re : Craig C. Burnham, Trustee
1¢ Franklin Street, Special Permit
Dear Mr. Barrett,
This letter is submitted in support of the
appellant' s request to improve the subject property
as a base of operations for a marine contracting
plant. Given the city' s loss of industrial and.
commeroial tax bases over the past three decades
an enterprise of this sort should be given every
encouragement to expand . Aside from increased
tax revenues to the city the business also pro-
vides gainful employment opportunities for skilled
tradesmen in� that industry.
As the mayor aptly noted to staff writer
Lois Fecteau of Soundings publication in
N�)vember 1995 , "Salem is returning to its roots
on the waterfront. It is committed to an ambitious
redevelopment plan to revive and rejuvenate the
city' s maritime tradition and identity. "
Your consideration and acceptance of this
submission for the record is appreciated .
Sincerely,
I�
Peter T. Victory
I
Tito of #UUM, massac4usetts
Dubuc Froperttl Department
Nuilbing Department
(One #alem Green
508-745-9595 Fin. 300
Leo E. Tremblay
Director of Public Property
Inspector of Building
Zoning Enforcement Officer
March 26, 1997
City of Salem
Board of Appeal
One Salem Green
Salem, Mass . 01970
RE: 14 Franklin Street
Dear Board Members :
For your information, I have enclosed several letters
concerning the above mentioned property and the ongoing
problems this office has encountered concerning the
construction of the existing building. I will be
attending the meeting and will be available to answer any
questions the Board might have concerning the building and
or property.
Sincerely,
Leo E . Tremblay
Zoning Enforcement Officer
LET: scm
COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
Miscellaneous Case No. 238654
CRAIG C. BURN-SIAM, TRUSTEE OF THE
FRANKLIN STREET REALTY TRUST and
BURNHAM ASSOCIATES, INC.,
Plaintiffs
Vs.
GARY M. BARRETT, JOSEPH J. YWUC,
NINA V. COHEN,ARTHUR LABRECQUE,
RICHARD DIONNE, ALBERT C. HILL,
and PAUL VALASKATGIS, Individually
and as they constitute the BOARD OF APPEAL
OF THE CITY OF SALEM, CITY OF SALEM,
and LEO E. TREMBLAY, INSPECTOR OF
BUILDINGS and ZONING ENFORCEMENT
OFFICER OF THE CITY OF SALEM,
Defendants
DECISION DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY
JUDGMENT AND GRANTING SUMMARY JUDGMENT IN PART TO DEFENDANTS
Plaintiffs seek to annul a decision of the Board of Appeals(the board) of the City
of Salem dated April 16, 1997, filed with the City Clerk April 30, 1997, denying a special permit
as to property (the property) at 14 Franklin Street, Salem. The special permit was for the
expansion of a non-conforming use to allow the construction of an office/storage building.
Plaintiffs also seek determinations pursuant to G. L. c. 240, § 14A that the proposed building is
authorized under a prior decision of this court and as to whether the use of an office trailer on the
property is a valid prior non-conforming use. Plaintiffs also seek injunctive relief.
Plaintiffs have moved for partial summary judgment, on count V of the complaint.
That seeks declaratory and injunctive relief with respect to the 1994 decision and judgment of
this court [described in paragraph two below]. The city asks that summary judgment be granted
it, under Mass. R. Civ. Prac 56 (c). Count V is in part as follows:
a. By Judgment dated November 7, 1994, defendant inspector of buildings (the
building inspector)was ordered not to withhold a building permit for a building described in the
court's decision.
b. The building erected-at the property is identical to the one in the court's
,d_ecision in its use,neighborhood impact, and compliance with zoning setback and density
requirements.-- -
c. The building inspector refuses to perform final plumbing and fire inspections
on the building or to issue an occupancy permit.
d. An actual controversy exists between the parties and declaratory relief is
necessary.
Plaintiffs request that a declaration enter that the building is the same as
referenced in the 1994 decision and judgment, and that the building inspector be ordered not to
withhold plumbing and fire inspections nor an occupancy permit.
The complaint is verified. Affidavits of the following are in the record: Kenneth
J. Savoie (a registered architect); Mr. Burnham (two); Paul M. Tuttle (Salem City Electrician);
2
and defendant Tremblay, the building inspector. Counsel argued the motion January 9, 1998. I
viewed locus on January 15, 1998, in the presence of counsel and Mr. Burnham. The parties
agreed that my observations on the view are evidence. The parties agreed at the hearing that
exhibit 8 from the 1994 case, plans for the building as then planned, were evidence in this case,
and the parties have placed into the record a copy of the city's zoning ordinance.
I find and rule there are no issues of material fact with respect to my rulings below
and I find and rule as follows:
The following paragraphs one through eleven are a recitation of the factual
background prepared by plaintiffs' counsel,which I accept and incorporate herein:
1. Plaintiff Craig C. Burnham, Trustee of the Franklin Street Realty Trust(Mr.
Burnham), is the owner of the property. Mr. Burnham is the President of plaintiff Burnham
Associates, Inc., a marine contracting business that is conducted from the property(collectively,
Burnham).' In early 1993 Mr. Burnham attempted to improve the property by removing an
office trailer and erecting a building for offices and storage. The building inspector refused to
issue a building permit for the proposed building on the grounds of an illegal use (i.e.,the marine
contracting business) of the property.
2. As a result of the building inspector's refusal to issue a building permit, and
other reasons, Burnham filed an action here, Miscellaneous Case No. 192580, seeking a
determination that use of the property for the marine contracting business is a valid prior non-
conforming use. Trial was held November 3 and December 29, 1993 before me, and a view of
'Factual allegations are from the verified complaint unless otherwise indicated.
3
the property occurred on the final day of trial. Decision and judgment (the 1994 decision and
judgment) entered on November 7, 1994 declaring the marine contracting business to be a valid
prior non-conforming use. The building inspector was ordered not to withhold a building permit
for the building described in the decision on the grounds that the marine contracting business is
illegal. Complaint in this case, exhibit A.
3. In his affidavit, architect Savoie states the building described in exhibit 8 to the
1994 decision provides a use of office space and storage for the marine contracting business and
is a two story building; the use of the first floor is storage, and the use of the second floor is
offices. He states office space represents fifty percent of the building, and storage space
represents fifty percent. I accept those assertions except that the purpose for which the storage is
provided is not indicated on the plans.
4. Subsequent to the 1994 decision and judgment,plans for a larger building at
the property (the new building)were prepared, due to availability of a building from United
Structures of America. The new building is a pre-engineered steel building, also providing a use
of office space and storage. The use of the first floor is offices and storage, and the use of the
second floor(which in the present building is a mezzanine, extending about forty percent of the
length of the building) is offices. Office space represents fifty-five percent of the building, and
storage space represents forty-five percent, according to the Savoie affidavit, which I have no
reason to dispute on this point.
5. The new building is considerably larger than the building shown in exhibit 8 to
the 1994 decision. That building was 24' wide and 60' long, for a building footprint of 1,440 sq.
feet. The new building is 30' wide and 130' long, for a footprint of 3,900 sq. ft. The comparative
4
gross square footages are 2,800 and 5,400.
6. The plans for the new building were submitted. The fire protection system was
approved on November 2, 1995, and the building inspector stamped and approved the plans on
November 14, 1995. Complaint exhibit B. The building inspector issued a building permit on
that date to erect a building for"Merchandise Storage & Office." Construction proceeded in
accordance with the approved plans.
7. The construction of the new building proceeded under the supervision of the
building inspector's department. In the Fall of 1995 preparation was made for the new building's
foundation. Pilings were driven, which required placement of caps for the subterranean
foundation;these were inspected and approved by assistant building inspector John Jennings.
That was followed by the pouring of the concrete foundation footing, also inspected and
approved by Mr. Jennings. Mr. Jennings inspected and approved the steel erection and
placement of concrete panels during January and February, 1996. (Burnham July 31, 1997
affidavit,paragraphs 6 and 7).
8. The building inspector's office subsequently requested further drawings of the
new building's layout of office space. Drawings depicting the internal layout,toilet rooms,
stairs, etc. were prepared by Mr. Savoie. These drawings, stamped and dated June 10, 1996,
were submitted as requested.
9. Construction continued through the Summer and Fall of 1996. Rough and
final electrical inspections were completed and approved. A rough inspection of the plumbing
was completed; however,when the plumbing subcontractor requested the final inspection, the
inspector refused to perform the inspection. Similarly,when Mr. Burnham requested a final
5
inspection of the fire prevention system, the inspector refused. The plumbing work remains
exposed so that the inspection may be performed.tSheet coco k in place was hung_with.the_approval
of-the building inspector's office, and existing walls_cover no work which requires inspection?
Construction of the new building is substantially complete, and upon completion of final
inspections it is ready for issuance of an occupancy permit.
10. On December 11, 1996 Mr. Burnham submitted a written request to the
building inspector to authorize the final inspections. Complaint exhibit D. The building
inspector responded by issuing a stop work order on December 19, 1996, citing violations of the
building code. (Complaint exhibit E).
11. Mr. Burnham appealed the refusal to perform inspections and the stop work
order to the State Building Code Appeals Board pursuant to 780 Code Mass. Reg. 126.3, and a
hearing occurred on February 25, 1997. During the hearing the building inspector stated the new
building did not comply with the Salem zoning ordinance. The board determined that the
controversy was a zoning issue and continued the matter pending determination of that issue. On
March 10, 1997 the building inspector stated in writing that the new building constitutes a
violation of the zoning ordinance and should be removed from the property and that occupancy
should cease. (Complaint exhibit F.)
12. The property is in a B-5 (central development) district under the zoning
ordinance. "(10)Business and professional offices" and"(17)Accessory uses generally in
support of the above permitted uses" are permitted uses in the B-5 district(§ 5-2 (g) of the
ordinance.) A marine contracting business is not a permitted use in a B-5 district. In § 2-2 (b)
of the ordinance,the definition of"Accessory building or use" is "A building or use on the same
6
lot with, and of a nature customarily incidental and subordinate to,the principal building or use."
13. Plaintiffs argue the issue of plaintiffs' right to have a building at the property
in conjunction with the marine contracting business has already been tried and decided by this
court. They argue there have been no changes in Mr. Burnham's business activities nor the
character of the new building, which would constitute improper expansion of the authorized non-
conforming use and bring the building out of the aegis of the 1994 decision and judgment.
14. Plaintiffs then argue: The only difference from when the 1994 case was tried
are plans for a larger building. A valid non-conforming use does not lose that status if it is
improved, provided there is no change in the original nature of the undertaking. Cape Resort
Hotels Inc v Alcoholic Licensing Bd. of Falmouth 385 Mass. 205, 215 (1982). The use of the
property has not changed, and if the intensity of the non-conforming use (i.e., neighborhood
impact)has changed at all, it has lessened. In determining whether the new building is protected,
the only issue is whether it changes or substantially extends the non-conforming use. perbv
Refinina Co. v. Chelsea 407 Mass. 703, 711-712 (1990). This is determined according to the
tests of Powers v Building Inspector of Barnstable, 363 Mass. 648 (1973)and Bridgewater v.
Chuckran, 351 Mass. 20 (1966).
15. Plaintiffs argue, finally,that under the Powers/Chuckran tests there is no
change or substantial extension of the non-conforming use. In particular,plaintiffs argue: The
court authorized a building in conjunction with this use for fifty percent office space and fifty
percent storage. The new building reflects the same nature and purpose. It too is for offices and
storage, although in the proportion of fifty-five percent to forty-five percent. The nature and
purpose of the use of the building remains unchanged from the old to the new. They also note
7
the building complies with the dimensional requirements of the zoning ordinance (which the city
does not dispute.)
16. The city argues the 1994 decision and judgment authorized the construction
of an office building and the new building is in part used for storage connected to the marine
contracting business and is thus an unauthorized expansion of the non-conforming use. The city
also argues this court is without jurisdiction, in that in not appealing the rulings of the building
inspector, plaintiffs did not exhaust their administrative remedy.
17. As to the jurisdictional issue, I find the communications from the building
inspector to plaintiffs in 1996, exhibits B, C, E and F to Mr. Tremblay's affidavit, did not
constitute actions which called for an appeal to the board, or were not treated as such by the
parties, who proceeded to a hearing before the State Board of Building Regulations and
Standards. Exhibit G to Mr. Tremblay's affidavit, however, is a formal order to discontinue the
use of the building and to remove it, which includes a notice of a right of appeal under G. L. c.
40A, §§ 8 and 15.
18. Exhibit G to the complaint is a copy of Franklin Street Realty Trust's filing
with the board, made March 24, 1997 (thus within the thirty days allowed by G. L. c. 40A, §
15). That filing is entitled"Application For Special Permit"and seeks to change the
nonconforming use of locus from an industrial marine contracting yard to allow a part of locus to
be used for a building for offices and storage and"contractor's supply." There is no express
reference to an appeal of Mr. Tremblay's March 10, 1997 communication, although that is
mentioned in the application. The legal advertisement for the hearing (exhibit H to the
complaint)mentions only the special permit.
8
19. Exhibit J to the complaint is a copy of the board's decision, appealed here. It
shows the facts of plaintiffs' communications with the building inspector were before the board.
I conclude the substance of an appeal of the building inspector's determination was before the
board. In addition, plaintiffs' request for a determination of their status is made under G. L. c.
240, § 14A, which does not require exhaustion of administrative remedies. Banquet Real , Co. v.
Acting Bldg. Comm'r of Boston, 389 Mass. 565, 573 (1983). I conclude there is jurisdiction to
decide plaintiffs' motion for partial summary judgment.
20. My view of the inside of the new building produced the following. The new
building is prefabricated, formed by large steel side columns, on which large steel roof girders
are positioned, making a somewhat hipped roof. The area nearest to the street is partitioned off,
about 40%of the whole,which I estimated and which the Savoie affidavit substantiates. In the
partitioned area the first floor is partially finished,work having been stopped(counsel suggests
and the city does not dispute) because of the stop order issued by Mr. Tremblay. There are a few
desks in that area and not much else. That part of the first floor area is, according to Mr.
Burnham,to be office space for another of Mr. Burnham's businesses. The second floor of the
partitioned area is the mezzanine area, referred to above(the second floor does not extend the
whole length of the building). There is a large automatic roller-type garage door in the wall of
the first floor facing the street.
21. The partitioned area on the first floor leads through an opening(made for
eventual french doors, according to Mr. Burnham) into the remainder of the first floor, which is a
warehouse or storage area, with nothing between the concrete floor and the ceiling. It is a high
(twenty-three feet per the Savoie affidavit)barn-like area. A stairway in that area takes one
9
back toward the street and into the mezzanine area. The mezzanine area is to be the office area
for the marine contracting business and it is fitted out now with several desks.
22. The large, barn-like, storage area is fitted out with metal racks along each
side, in which there are all kinds of industrial equipment and supplies. There is a drill press at
one end of the area. There is a roller-type garage door in the wall, away from the street(the wall
nearest the river). That is like the door in the wall nearest the street, but much larger, taking up
most of the wall. It is large enough to accommodate very large industrial vehicles or equipment.
The current use is clearly an industrial use.
23. The motion before me may lead to a classic zoning puzzle: how do you
differentiate between a building and its use? Can you tell whether a building meets the use
limitations in the zoning code or by-law without knowing how the building is used? To argue
that a prefabricated steel building, outfitted as is the building in this case, if placed on a
residentially zoned lot, would be a residence, produces an easy answer: among other things,
lacking a kitchen and bedrooms, it is clear the building would not be a residence. But what of
the situation here? The large storage area could be used to store items accessory to an office use
in the rest of the building. But at some point, reason must come into play. The area is entirely
inappropriate in size for any office accessory use. It could easily serve as the storage area for
supplies for a large part of the office space in Salem(such a storage area would presumably be a
principal use under the ordinance). The super-sized garage-type door is clearly aimed at
accommodating large vehicles and equipment. The area appears to be set up to be accessory to
an industrial use, such as the marine contracting business conducted by Mr. Burnham.
24. At this point, I do not have to solve the puzzle just suggested. The building
10
violates zoning as the building is now used or established (without even mentioning the point
that there is no occupancy permit). About forty-five percent of the building, the large area
described above, is used for industrial uses.
25. Plaintiffs cite Cape Resorts Hotels. Inc. v. Alcoholic Licensing Bd. of
Falmouth, 385 Mass. 205, 215 (1982) for the proposition that a nonconforming use may be
improved, provided there is no change in the original nature of the undertaking. However,
neither that case, nor the cases cited by it(Berliner v. Feldman, 363 Mass. 767, 775 [1973] and
Wayland v. Lee, 325 Mass. 637, 643 [1950]) deal with the erection of a new structure, as is the
case here. The same is true of Derby Refining Co. v. Chelsea. 407 Mass. 703, 711-712 (1990),
also cited by plaintiffs .
26. The applicable law is stated in Massachusetts Zoning Manual, MCLE, 1997
ed., § 6.13, as follows:
"A long line of Supreme Judicial Court opinions have established that the
existence of a lawful nonconforming use does not permit the erection of
additional structures for extension of the use, absent express authorization
by the local zoning law . . . . While these decisions were rendered under
the prior Chapter 40A, their reasoning applies equally well to the present
Section 6, and there is no reason to doubt their continuing validity. Vokes
v. Lovell. Inc., 18 Mass. App. Ct. 471, 484-85 n.21,468 N.E.2d 271, 280
(1984)."'
27. As now used,the new building in part houses an allowed use(office) but in
part unlawful uses (industrial storage), and the unlawful part cannot, for the reason just stated, be
'The Salem ordinance does not give the "express authorization" referred to in the quote.
Indeed,to the contrary,it states,at§ 8-1(b): "Nonconformities shall not be enlarged upon,expanded
or extended nor be used as grounds for adding other prohibited structures or uses elsewhere in the
same district."
11
justified as a prior nonconforming use.
28. Plaintiffs' argument,paragraph 13 above, as to the effect of the 1994
judgment, is not correct. That judgment ordered the issuance of a building permit for an office
building, a matter described in more detail in paragraphs 17 through 19 of the 1994 decision.
Plaintiffs focus on the fact that the plans for the (much smaller) building submitted in evidence in
the 1994 case showed storage, indeed slightly more, on a percentage basis, than the new building
(50 % storage vs. 45% in the new building). However, nothing in the 1994 decision and
judgment validated a use of the storage in the office building for uses unauthorized under the
zoning ordinance. There was no consideration given to the storage area in the 1994 decision and
judgment. The holding was, simply,that an office building was an authorized use,that the
building proposed met dimensional requirements, and that, therefore,the city could not prevent
the building. Plaintiffs do not succeed on the basis of issue preclusion and collateral estoppel.
29. I note the following, from an affidavit submitted by Mr. Burnham in support
of his motion for partial summary judgment in the 1994 case (referring to the building as
originally designed):
"8. The proposed building,as shown by the plans, was to be used for
offices only, and was intended as an improvement to the property and
neighborhood, authorized by the Salem Zoning Ordinance.
9. The building can continue to be used as an office building regardless of
whether Burnham Associates is allowed to operate its marine contracting
business from the property, a risk I assume, and it does not have to be used
solely in conjunction with this particular business.
10. The proposed building does not expand upon, or utilize, the marine
contracting business and its equipment."
30. Plaintiffs' motion for partial summary judgment is denied. The city's request
12
for summary judgment is allowed to the extent that I rule, as stated above,that the use of part of
the new building for industrial storage,the large one floor area on the river side of the building,
is illegal. The city has not established that any of the affidavits submitted by plaintiffs were
submitted in bad faith or solely for the purpose of delay, and therefore an order under Mass. R.
Civ. P. 56 (g) is not appropriate. The facts set forth in paragraphs one through twelve above are
without substantial controversy and are deemed established under Mass. R. Civ. P. 56 (d) for
purposes of trial.
Peter W. Kilbom
Chief Justice
Dated: January 30, 1998
13