2 GOODHUE STREET - ZBA (2) 2 Goodhue St. BPD
Stephen Haley � .e
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CITY OF SALEM - MASSACHUSETTS
KEVIN T.DALY Legal Department LEONARD F FEMINO
City Solicitor 93 Washington Street Assistant City Solicitor
508-745-0500 Salem,Massachusetts 01970 508.921-1990
December 29, 1993
Thomas C. Regan, Esq.
Pearl, McNiff, Crean, Cook & Sheehan
30 Main Street
Peabody, MA 01960
RE: Stephen Haley
v. Salem Board of Appeal
Civil Action No. 91-1614
Dear Tom:
Enclosed herewith please find an executed Agreement for Judgment together
with a copy of the motion authorizing me to settle this matter. Would you kindly file
and docket same at your convenience.
Please call with any questions you may have.
Very truly yours,
Leonard F. Femino
Assistant City Solicitor
LFF/Imp
Enclosure
cc: Robert A. Ledoux, Esq., City Solicitor
Brenda M. Sumrall, Clerk
COMMONWEALTH OF MASSACHUSETTS
Essex, ss . Superior Court Department
Civil Action No . 91-1614
STEPHEN HALEY, )
PLAINTIFF )
VS. )
RICHARD BENCAL, ET ALS, )
AS THEY ARE MEMBERS OF )
THE SALEM BOARD OF )
APPEAL, )
DEFENDANTS )
AGREEMENT FOR JUDGMENT
Now come the parties , by their counsel , and stipulate
and agree that the following entry be made on the docket:
"Judgment on Count II declaring that the use of 2
Goodhue Street, Salem, Massachusetts , for the sale of used
automobiles and for the storage of automobiles in the process
of repair is a permissible use of said 2 Goodhue Street
because it existed prior to any change in the zoning
Ordinance of the City of Salem making such use impermissible.
"Count I is dismissed as moot .
"Each party to bear its own costs . All rights of
appeal are waived. "
Respectfully submitted,
Richard Bencal, et al
Stephen Haley,
By his. Attorney, By their Attorney,
Thomas C . Regan, /BBO #548469 onard F . Femino, Esquire
Pearl , McNiff , Crean, Cook & lexander, Femino &
Sheehan Lauranzano
30 Main Street One School Street
Peabody, MA 01960 Beverly, MA 01915
Telephone : ( 508 ) 531-1710 Telephone, ( 508) 921-1990
Dated: December 1 , 1993
u
• ONtM
CITY OF SALEM - MASSACHUSETTS
ROBERT A. LEDOUX Legal Department LEONARD F. FEMINO
City Solicitor 93 Washington Street Assistant City Solicitor
50&7453963 Salem, Massachusetts 01970 508W-19M
January 10, 1994
Zoning Board of Appeal
City of Salem
One Salem Green
Salem, MA 01970
RE: Haley
v. Bencal, et al
Civil Action No. 91-1614
Dear Members:
Enclosed herewith please find the Agreement for Judgment filed on behalf of the
City of Salem for your information.
Thank you for your assistance in this regard.
Very truly yours,
Leonard F. Femino
Assistant City Solicitor
LFF/Imp
Enclosure
cc: Robert A. Ledoux, Esq.
r
COMMONWEALTH OF MASSACHUSETTS
Essex, ss . Superior Court Department
Civil Action No. 91-1614
STEPHEN HALEY, )
PLAINTIFF )
vs. )
RICHARD BENCAL, ET ALS, )
AS THEY ARE MEMBERS OF )
THE SALEM BOARD OF )
APPEAL, )
DEFENDANTS )
AGREEMENT FOR JUDGMENT
Now come the parties , by their counsel , and stipulate
and agree that the following entry be made on the docket:
"Judgment on Count II declaring that the use of 2
Goodhue Street, Salem, Massachusetts , for the sale of used
automobiles and for the storage of automobiles in the process
of repair is a permissible use of said 2 Goodhue Street
because it existed prior to any change in the Zoning
Ordinance of the City of Salem making such use impermissible.
"Count I is dismissed as moot .
"Each party to bear its own costs . All rights of
appeal are waived. "
Respectfully submitted, Richard Bencal , et al
Stephen Haley,
By his Attorney, By their Attorney,
Thomas C . Regan, .BBO #548469 onard F . Femino, Esquire
Pearl , McNiff , Crean, Cook & lexander, Femino &
Sheehan Lauranzano
30 Main Street One School Street
Peabody, MA 01960 Beverly, MA 01915
Telephone: ( 508 ) 531-1710 Telephone: ( 508) 921-1990
Dated: December 1 , 1993
�ONdT�
CITY OF SALEM - MASSACHUSETTS
ROBERT A. LEDOUX Legal Department LEONARD F. FEMINO
City Solicitor 93 Washington Street Assistant City Solicitor
sMy^s,IW3 Salem, Massachusetts 01970 508-921-19M
January 10, 1994
Zoning Board of Appeal
City of Salem
One Salem Green
Salem, MA 01970
RE: Haley
v. Bencal, et al
Civil Action No. 91-1614
Dear Members:
Enclosed herewith please find the Agreement for Judgment filed on behalf of the
City of Salem for your information.
Thank you for your assistance in this regard.
Very truly yours,
IZLC`-` ��T%L�yu rw
Leonard F. Femin/o
Assistant City Solicitor
LFF/Imp
Enclosure
cc: Robert A. Ledoux, Esq.
COMMONWEALTH OF MASSACHUSETTS
Essex, ss . Superior Court Department
Civil Action No. 91-1614
STEPHEN HALEY, )
PLAINTIFF )
VS. )
RICHARD BENCAL, ET ALS, )
AS THEY ARE MEMBERS OF )
THE SALEM BOARD OF )
APPEAL, )
DEFENDANTS )
AGREEMENT FOR JUDGMENT
Now come the parties , by their counsel , and stipulate
and agree that the following entry be made on the docket:
"Judgment on Count II declaring that the use of 2
Goodhue Street, Salem, Massachusetts , for the sale of used
automobiles and for the storage of automobiles in the process
of repair is a permissible use of said 2 Goodhue Street
because it existed prior to any change in the Zoning
Ordinance of the City of Salem making such use impermissible.
"Count I is dismissed as moot.
"Each party to bear its own costs . All rights of
appeal are waived. "
Respectfully submitted,
Stephen Haley, Richard Bencal, et al
By his Attorney, By their Attorney,
Thomas C . Regan, , BO #548469 onard F. Femino, Esquire
Pearl , McNiff, Crean, Cook & lexander, Femino &
Sheehan Lauranzano
30 Main Street One School Street
Peabody, MA 01960 Beverly, MA 01915
Telephone: ( 508 ) 531-1710 Telephone: ( 508) 921-1990
Dated: December 1 , 1993
���ONWT
"�MIN6
CITY OF SALEM • MASSACHUSETTS
ROBERT A. LEDOUX Legal Department LEONARD F FEMINO
City solicitor 93 Washington Street Assistant city solicitor
509&7463363 .Salem, Massachusetts 01970 508-sz149so
January 10, 1994
Zoning Board of Appeal
City of Salem
One Salem Green
Salem, MA 01970
RE: Haley
v. Bencal, et al
Civil Action No. 91-1614
Dear Members:
Enclosed herewith please find the Agreement for Judgment filed on behalf of the
City of Salem for your information.
Thank you for your assistance in this regard.
Very truly yours,
Leonard F. Femino
Assistant City Solicitor
LFF/Imp
Enclosure
cc: Robert A. Ledoux, Esq.
COMMONWEALTH OF MASSACHUSETTS
Essex, ss . Superior Court Department
Civil Action No. 91-1614
STEPHEN HALEY, )
PLAINTIFF )
VS. )
RICHARD BENCAL, ET ALS, )
AS THEY ARE MEMBERS OF )
THE SALEM BOARD OF )
APPEAL, )
DEFENDANTS )
AGREEMENT FOR JUDGMENT
Now come the parties, by their counsel, and stipulate
and agree that the following entry be made on the docket:
"Judgment on Count II declaring that the use of 2
Goodhue Street, Salem, Massachusetts, for the sale of used
automobiles and for the storage of automobiles in the process
of repair is a permissible use of said 2 Goodhue Street
because it existed prior to any change in the Zoning
Ordinance of the City of Salem making such use impermissible .
"Count 1 is dismissed as moot.
"Each party to bear its own costs . All rights of
appeal are waived. "
Respectfully submitted,
Stephen Haley, Richard Bencal, et al
By his Attorney, By their Attorney,
Thomas C . Regan, , BO #548469 on F. Femino, Esquire
Pearl, McNiff, Crean, Cook & lexander, Femino &
Sheehan Lauranzano
30 Main Street One School Street
Peabody, MA 01960 Beverly, MA 01915
Telephone: ( 508 ) 531-1710 Telephone: ( 508) 921-1990
Dated: December 1, 1993
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DECISION ON THE PETITION OF STEPHEN HALEY FOR VARIANCES AT Sa(„;ih S Jr SCF
2 GOODHUE ST. (BPD) :,
A hearing on this petition was held April 17, 1991 with the following Board
Members present: Richard Bencal, Chairman; Edward Luzinski, Joseph Correnti,
Richard Febonio and Associate Member Arthur LaBrecque. Notice of the hearing
was sent to abutters and others and notices of the hearing were properly
advertised in the Salem Evening News in accordance with Massachusetts General
Laws Chapter 40A.
Petitioner, owner of the property, is requesting variances to allow the property
to be used for sale of used cars and for storage of cars that are in the repair
process. Property is located in the Business Park Development District (BPD) .
The Variances which have been requested may be granted upon a finding of the
Board that:
a. Special conditions and circumstances exist which especially affect the land,
building or structure involved and which are not generally affecting other
lands, buildings and structures in the same district.
b. Literal enforcement of the provisions of the Zoning Ordinance would involve
substantial hardship, financial or otherwise, to the petitioner.
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.
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 . The property is located in the Entrance Corridor Overlay District (ECOD) .
2. The immediate abutter spoke in opposition.
3. The petitioner failed to meet the burden of proof relative to
legal hardship.
On the basis of the above findings of fact, and on the evidence presented, the
Board of Appeal concludes as follows:
1 . Special conditions do not exist which especially affect the subject
property and not the district in general.
2. Literal enforcement of the Ordinance would not involve substantial
hardship to the petitioner.
3. The relief requested cannot be granted without substantial detriment to the
public. good or without nullifying and substantially. derogating from the intent
of the district of the purpose of the Ordinance.
r .
DECISION ON THE PETITION OF STEPHEN HALEY FOR VARIANCES AT
2 GOODHUE STREET, SALEM
page two
Therefore, the Zoning Board of Appeal voted unanimously, 0-5, against the
granting of the Variances requested. The motion to grant having failed to garner
the required four affirmative votes to pass, fails, and the petition is denied.
VARIANCES DENIED
April 17, 1991
d
chard Febonio, Member, Board of Appeal
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK
Appeal from this decision, it any, shall be made pursuant to Section 17 of
the Mass. General Laws, Chapter 808, and shall be filed within 20 days
after the date of filing of this decision in the office of the City Clerk.
Pursuan, to Mass. Genera' Laws, Chapter 808, Section 11, the variance
or 2�.ia� Dermh ^.rr.nte,' he.em et: A not take effect until a copy of the
decision, ..^,errin? the certwcation ct 81e 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 of Deeds and indexed under the name or the owner of record or
Is recorded and noted on the owner's Certificate of Title.
BOARD OF APPEAL
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�uttra of �, enl 91 MAY -1 A_
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DECISION ON THE PETITION OF STEPHEN HALEY FOR VARIANCES AT CITY C,SqS
h' Or:
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2 GOODHUE ST. (BPD) ti-t-1 pi;�; ,, ICF
A hearing on this petition was held April 17, 1991 with the following Board
Members present: Richard Bencal, Chairman; Edward Luzinski, Joseph Correnti,
Richard Febonio and Associate Member Arthur LaBrecque. Notice of the hearing
was sent to abutters and others and notices of the hearing were properly
advertised in the Salem Evening News in accordance with Massachusetts General
Laws Chapter 40A.
Petitioner, owner of the property, is requesting variances to allow the property
to be used for sale of used cars and for storage of cars that are in the repair
process. Property is located in the Business Park Development District (BPD) .
The Variances which have been requested may be granted upon a finding of the
Board that:
a. Special conditions and circumstances exist which especially affect the land,
building or structure involved and which are not generally affecting other
lands, buildings and structures in the same district.
b. Literal enforcement of the provisions of the Zoning Ordinance would involve
substantial hardship, financial or otherwise, to the petitioner.
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.
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 . The property is located in the Entrance Corridor Overlay District (ECOD) .
2. The immediate abutter spoke in opposition.
3. The petitioner failed to meet the burden of proof relative to
legal hardship.
On the basis of the above findings of fact, and on the evidence presented, the
Board of Appeal concludes as follows:
1 . Special conditions do not exist which especially affect the subject
property and not the district in general.
2. Literal enforcement of the Ordinance would not involve substantial
hardship to the petitioner.
3. The relief requested cannot be granted without substantial detriment to the
public good or without nullifying and substantially derogating from the intent
of the district of the purpose of the Ordinance.
f
DECISION ON THE PETITION OF STEPHEN HALEY FOR VARIANCES AT
2 GOODHUE STREET, SALEM
page two
Therefore, the Zoning Board of Appeal voted unanimously, 0-5, against the
granting of the Variances requested. The motion to grant having failed to garner
the required four affirmative votes to pass, fails, and the petition is denied.
VARIANCES DENIED
April 17, 1991
Richard Febonio, 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
the Mass. General Laws, Chapter 808, and shall be filed within 20 days
after the date of filing of this decision in the office of the City Clerk.
Pursuant to Mans. Genera' Lags, Chapter 808, Section 11, the Variance
or ?nsr.iji 9e.mit . r,.nte,, he.ein cC:N not take effect until a copy of the
decision, berrinq the certification Gf 8ie 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 dismisseC or denied is recorded in the South Essex
Registry of Deeds and indexed under the name or the owner of record or
is recorded and noted on the owner's Certificate of Title.
BOARD OF APPEAL
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�nttr� of �, peal
AGENDA
April 17, 1991 - 7:00 p.m.
2nd Floor - One Salem Green
1 . Petition of Hayden Safe & Lock Co. for Variances to allow their
business to be located at 119 Webb St. (R-2)
2. Petition of Georgia Giannias for variances, including parking, to allow
two family to be converted to a three family at 99 Tremont St. (R-2)
3. Petition of C. Jean Donoghue for Special Permit and/or Variance to
allow construction of a deck at 83-83i Proctor St. (R-2)
4. Petition of Stephen Haley for Variances to allow property to be used
for sale and storage of cars in the repair process att2Goodhue St—(-BPD)
5. Petition of Arthur Emerson for Variance/Special Permit to allow height
of structure to be increased at 83 Valley St. (R-1 )
6. Petition of Thomas & Nancy Silva for Variances from any and all density
and setback requirements to allow an existing above ground pool and to
enclose an existing deck at 33 Beaver St. (R-2)
7. Approval of minutes as taped - March 20, 1991
Approval of minutes as transcribed - January 16, 1991
8. Old/New business
For the
BOARD OF APPEAL
Z�
Brenda M. Sumrall
Clerk of the Board
r° Chi of �tt1Pm, ��ttsstttljusPttg
_I s Boma of �upeal
1 MAY -1 A8 :
DECISION ON THE PETITION OF STEPHEN HALEY FOR VARIANCES AT CITY
2 GOODHUE ST. (BPD) Sat
A hearing on this petition was held April 17, 1991 with the following Board
Members present: Richard Bencal, Chairman; Edward Luzinski, Joseph Correnti,
Richard Febonio and Associate Member Arthur LaBrecque. Notice of the hearing
was sent to abutters and others and notices of the hearing were properly
advertised in the Salem Evening News in accordance with Massachusetts General
Laws Chapter 40A.
Petitioner, owner of the property, is requesting variances to allow the property
to be used for sale of used cars and for storage of cars that are in the repair
process. Property is located in the Business Park Development District (BPD) .
The Variances which have been requested may be granted upon a finding of the
Board that:
a. Special conditions and circumstances exist which especially affect the land,
building or structure involved and which are not generally affecting other
lands, buildings and structures in the same district.
b. Literal enforcement of the provisions of the Zoning Ordinance would involve
substantial hardship, financial or otherwise, to the petitioner.
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.
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 . The property is located in the Entrance Corridor Overlay District (ECOD) .
2. The immediate abutter spoke in opposition.
3. The petitioner failed to meet the burden of proof relative to
legal hardship.
On the basis of the above findings of fact, and on the evidence presented, the
Board of Appeal concludes as follows:
1 . Special conditions do not exist which especially affect the subject
property and not the district in general.
2. Literal enforcement of the Ordinance would not involve substantial
hardship to the petitioner.
3. The relief requested cannot be granted without substantial detriment to the
public good or without nullifying and substantially derogating from the intent
of the district of the purpose of the Ordinance.
DECISION ON THE PETITION OF STEPHEN HALEY FOR VARIANCES AT
2 GOODHUE STREET, SALEM
page two
Therefore, the Zoning Board of Appeal voted unanimously, 0-5, against the
granting of the Variances requested. The motion to grant having failed to garner
the required four affirmative votes to pass, fails, and the petition is denied.
VARIANCES DENIED
April 17, 1991
O � D
Richard Febonio, 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
the Mass. General Laws, Chapter 808, and shall be filed within 20 days
after the date of filing of this decision in the office of the City Clerk.
Pursuant to Mans. Genera' Laws, Chapter 808, Section 11, the Variance
or 'e,mil ;tr,.nt,,, he.vin t;h II not take effect until a copy of the
decision, le,rint the certwcation U :he 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 dismisseG or denied is recorded in the South Essex
Registry of Deeds and indexed under the name or the owner of record or
Is recorded and noted on the owner's Certificate of Title.
BOARD OF APPEAL
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CITY OF SALEM, MASSACHUSETTS
LICENSING BOARD
Si ONE SALEM GREEN
Tel.745-9595E#.345
��9eYMIN6 W'
Chairman,John A.Boris
CLERK Samuel L.Papalardo
JUDY DAVENPORT James M.Fleming
April 16, 1991
To Whom It May Concern:
Application for a Class II Auto Dealer License at 11 Goodhue Street was
approved by the Licensing Board in May of 1978. In December 1986, Mr. Weener
applied for an extension of premises which would include 2-11 Goodhue Street.
This application was approved by the Licensing Board as Mr. Weener had main-
tained an ongoing business. In March 1990, Mr Weener surrended his Class II
Auto Dealer License so that his tenants, Mr Russo and Mr. Guarino could apply
for a Class II Auto Dealer License at 2-11 Goodhue Street. Mr Russo and Mr
Guarino, at this time, do hold a Class II Auto Dealer License at 2-11 Goodhue
Street.
When the Licensing Board became aware of a zoning problem, the owner of the
property, Mr. Haley, was directed to the Board of Appeals for a variance.
Sincerely
r�
John A. Boris
Chairman
y s� Ctu of ttiem, ttsstttlju�etts
Poarb of ( pk"Pal
ker.um�.,+k
May 6, 1991
Notice is hereby given that as of May 1 , 1991 the decision
of the Board of Appeal has been filed in the office of the
City Clerk to deny the petition of StephenP:Haley for Variances
to allow the sale of used cars and for storage of cars in the
repair process at 2 Goodhue St. (BPD)
BOARD OF APPEAL
z Brenda M. Sumrall
Clerk of the Board
Appeal from this decision, If arty,shall be made pursuant to Section 51 61
the Mass. General Laws, Chapter 808, and shall be filed within le days
after the date of filing of this decision in the office
of hllCtheity CVar ante
Pursuantlo Mass. General Laws, Chapter 808, Section
or ?`-e:ial 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 dismisse6 or denied is recorded in the South Essex
Registry of Deeds and indexed under the name or the owner of recard.oc
is recorded and noted on the owner's Certificate of Title.
BOARD Of APPEAL
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CITY OF SALEM - MASSACHUSETTS
KEVIN T.DALY Legal Department LEONARD F FEMINO
City Solicitor 93 Washington Street Assistant City Solicitor
508-745-0500 Salem, Massachusetts 01970 508-921-1990
May 29, 1991
Essex Superior Court
34 Federal Street
Salem, MA 01970
ATTN: Civil Docketing Clerk
RE: Stephen Haley v. Salem Board of Appeals
Docket No. : 91-1614
Dear Sir or Madam:
Relative to the above-named case, please find enclosed my
appearance on behalf of the members of the City of Salem Board of
Appeals.
Thank you for your attention to this matter.
Very truly yours,
KEVIN T. DALY
CITY SOLICITOR
KTD/rmj
Enclosure
CC: William H. Sheehan, squire
Board of Appeals
I
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. TRIAL COURT
SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 91-1614
* * * * * * * * * * * * * * * * * * *
STEPHEN HALEY,
*
Plaintiff
*
V.
* NOTICE OF
RICHARD BENGAL, EDWARD LUZINSKI , * APPEARANCE
ARTHUR LABRECQUE, JOSEPH CORRENTI,
RICHARD FEBONIO, MARY JANE
STIRGWOLT and JOHN GRADY, As they
are Members of the Board of Appeals
of the City of Salem,
Defendants
* I
Now comes Kevin T. Daly, Esquire, and hereby files an
appearance on behalf of the above-named defendants as they are
members of the City of Salem Board of Appeals.
SALEM BOARD OF APPEALS,
By its attorney,
I
KEVIN T. DALY
CITY SOLICITOR
One Church Street
Salem, MA 01970
Telephone No. ( 508 ) 745-0500
I Dated: May 29, 1991
I
ii
.I
I
CERTIFICATE OF SERVICE
I, Kevin T. Daly, Attorney for Defendants, hereby certify
that I served the foregoing NOTICE OF APPEARANCE to the
plaintiff by mailing a copy thereof , first-class mail , postage
prepaid, to William H. Sheehan, III , Esquire, PEARL, MCNIFF,
CREAN, COOK & SHEEHAN, 30 Main Street, Peabody, MA 01960.
Signed under penalties of perjury this 29th day of May,
1991 .
KEVIN T. DALY
CITY SOLICITOR
One Church Street
Salem, MA 01970
Telephone No. ( 508 ) 745-0500
I
CITY OF SALEM CITY OF SALEM
BOARD OF APPEAL i BOARD OF APPEAL
745-9595 Ext. 381 745-9595 Ext. 381
Will hold a public hearing for all persons inter- Will hold a public hearing for all persons inter-
ested in the petition submitted by Stephen Haley ested in the petition submitted by Stephen Haley
for Variances to allow property to be used for sale ` i for Variances to allow properly to be used for sale
and storage of cars in the repair process at 2 Good_ I and storage of cars in the repair process at 2 Good.
hue St.(BPD).Said hearing to be held Wednesday, ,` { hue St.(BPD).Said hearing to be held Wednesday,
Aoprr`l 17, 1991 at 7:00 P.M.,One Salem Green,2nd flooAprd 17, 1991 at 7:00 P.M.,One Salem Green,2nd
RICHARD A BENCAL, Chairman RICHARD A g
I
April 3, 10, 1991 April 3, 10, 1991 BENCAL, Chairman
CITY OF SALEM
BOARD OF APPEAL
• 745-9595 Ext. 381
Will hold a public hearing for all persons inter-
ested in the petition submitted by Stephen Haley
for Variances to allow property to be used for sale i
and storage of cars in the repair process alt Good-
hue Sl.(BPD).Said hearing to be held Wednesday,
April 17, 1991 at 7:00 P.M.,One Salem Green,2nd
Boor.
RICHARD A BENCAL, Chairman
April 3, 10, 1991
S
J
CITY OF SALEM CITY OF SALEM
BOARD OF APPEAL BOARD OF APPEAL
745-9595 Ext. 381 745-9595 Ext. 381
inter-
ested lin hold
he petitiic on submigtedrbylStephen Haley Will hold a public hearing for all persons inter-
for Variances to allow property to be used for sale ested in the petition submitted by Stephen Haley
for Variances to allow properly to be used for sale
and storage of cars in the repair process at 2 Good- and storage of cars in the repair process at 2 Good-
hue St.(BPD).Said hearing to be Wednesday, hue St.(BPD).Said hearing to be held Wednesday,
April 17, 1991 at 7:00 P.M.,One Salem Green,2nd April 17, 1991 at 7:00 P.M.,One Salem Green,2nd
Floor.
Floor.
ApriRICHARD A BENCAL, Chairman RICHARD A BENCAL, Chairman
l 3, 10, 1991 April 3, 10, 1991
APPEAL CASE NO. . . . . . . . . . . . . . . . . . . . . . . .
4 01l:#V of "ittlrm, 'Mttssttt4usEftg
'Paurb of '4pud
J�
Gp�1G
TO THE BOARD OF APPEALS:
The Undersigned represenx that he is are the owners of a certain parcel of land located
at NO. . O. lfl!> . . 'T... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Street; Zoning District. . . . . .
. . . . . . . . . . . . . . . : and said parcel is affected by Section(s) . . . . . . . . . . . . . . . .
of the Massachusetts State Building Code.
Plans describing the work proposed, have been submitted to the Inspector of Buildings in
accordance with Section IX A. 1 of the Zoning Ordinance.
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The Application for Permit was denied by the Inspector of Buildings for Me fulowing
reasons:
The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem
Zoning Ordinance and/or the Building Code and order the Inspector of Buildings to
approve the application fee permit to build as filed, as the enforcement of said
Zoning By-Laws and Building Code would involve practical difficulty or unnecessary
hardship to the Undersigned and relief may be granted without substantially dero-
gating from the intent and purpose of the Zoning Ordinance and Building Code for
the following reasons:
Owner. ��� ,N� . .V" . .Vl . . . . . . . . . . . . . . . .
Address. . .z/5-
Telephone. . . . . . . . . . . . . . . . . . . . . . . .
Petitioner. . . . .15!mc. . . . . . . . . . . . . . . . . . . .
C� 1"� Address. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Date. . . k . . . . . . . . . . . Telephon . . . . . . . . . . . . .
By. Cl�. �iL '�. . . . . . . . . . . . .
Three copies of the application must be filed with the Secretary of the Bo rd of
Appeals with a check, for advertising in the amount of. . . .. . . . . . . . . . . . . . . . . . . . . .
four weeks prior to the meeting of the Board of Appeals. Check payable to The
Evening News.
w
NO....................................
PETITION ]0 BOARD OF APPEALS
LOCATION
................................................................
PETITIONER..........................................
ADDRESS......... ..........
................................................
CONDI I IONS
........................... ....................................
........................ ....................................... f
................................................................
.................................................................
.................................................................
.................................................................
PETITION APPROVED.................... ❑
DENIED.........................
.............................................1 I9.........
APPEAL CASE NO. . . . . . . . . . . . . . . . . . . . . . . .
A
of �t11PIlt� �tt$�FSLI�ltSP�B
curb of
s�
TO THE BOARD OF APPEALS:
The Undersigne represent hat he is are the owners of a certain parcel of land located
at NO. . .,,pp.��. �.QQV/DN�. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Street; Zoning District. . . . . .
. . . . . . . /�. .P. . /�. . . . . . . . . . . . . . . . : and said parcel is affected by Section(s) . . . . . . . . . . . . . . . .
of the Massachusetts State Building Code.
Plans describing the work proposed, have been submitted to the Inspector of Buildings in
accordance with Section IX A. 1 of the Zoning Ordinance.
7�Ir�C7
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The Application for Permit was denied by the Inspector of Buildings for the following
reasons:
J712EC7
The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem
Zoning Ordinance and/or the Building Code and order the Inspector of Buildings to
approve the application fee permit to build as filed, as the enforcement of said
Zoning By-Laws and Building, Code would involve practical difficulty or unnecessary
hardship to the Undersigned and relief may be granted without substantially dero-
gating from the intent and purpose of the Zoning Ordinance and Building Code for
the following reasons:
Owner. . .�T {7r� , J• I7, �L . . . . . . . .
Address. .� 1.7lLLY//I,,gSQN. .
Telephone. . . . (CC!./._Oq�i . . . . . . . . . . . . . . . . . . .
Pe ti tioner. . . s�A . . . . . . . . . . . . . . . . . . . . . .
Address. .
Date. . ?� . . . . . . . . . . . Telephone. . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . .
By. . . . . . . . . . . . . .
Three copies of the application must be filed with the Secretary of the Board of
Appeals with a check, for advertising in the amount of. . . . . . . . . . . . . . . . . . . . . . . . . .
four weeks prior to the meeting of the Board of Appeals. Check payable to The
Evening News.
r'
NO....................................
PETITION TO BOARD OF APPEALS
LOCATION
................................................................
PETITIONER..........................................
ADDRESS...............................................
................................................
CONDI"I IONS
............................ ....................................
........................ ........................I..............
................................................................
.................................................................
.................................................................
.................................................................
PETITION APPROVED_.................. ❑
DENIED.........................
.............................................. 19.........
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1101 V
CITY OF SALEM - MASSACHUSETTS
KEVIN T.DALY Legal Department LEONARD F FEMINO
City Solicitor 93 Washington Street Assistant City Solicitor
508-745-0500 Salem, Massachusetts 01970 508-921-1990
May 29, 1991
Essex Superior Court
34 Federal Street
Salem, MA 01970
ATTN: Civil Docketing Clerk
RE: Stephen Haley v. Salem Board of Appeals
Docket No. : 91-1614
Dear Sir or Madam:
Relative to the above-named case, please find enclosed my
appearance on behalf of the members of the City of Salem Board of
Appeals.
Thank you for your attention to this matter.
Very truly yours,
KEVIN T. DALY
CITY SOLICITOR
KTD/rmj
Enclosure
CC: William H. Sheehan, squire
Board of Appeals
:r
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. TRIAL COURT
SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 91-1614
* * * * * * * * * * * * * * * * * * *
*
STEPHEN HALEY,
Plaintiff
*
V.
* NOTICE OF
RICHARD BENGAL, EDWARD LUZINSKI , * APPEARANCE
ARTHUR LABRECQUE, JOSEPH CORRENTI,
RICHARD FEBONIO, MARY JANE
STIRGWOLT and JOHN GRADY, As they
are Members of the Board of Appeals
of the City of Salem,
Defendants
*
* * * * * * * * * * * * * * * * * * *
Now comes Kevin T. Daly, Esquire, and hereby files an
appearance on behalf of the above-named defendants as they are
members of the City of Salem Board of Appeals.
SALEM BOARD OF APPEALS,
By its attorney,
KEVIN T. DALY
CITY SOLICITOR
One Church Street
Salem, MA 01970
Telephone No. ( 508 ) 745-0500
Dated: May 29, 1991
I
i
i
I
I
I
I
I i
I
CERTIFICATE OF SERVICE
I, Kevin T. Daly, Attorney for Defendants , hereby certify
that I served the foregoing NOTICE OF APPEARANCE to the
plaintiff by mailing a copy thereof , first-class mail , postage
prepaid, to William H. Sheehan, III , Esquire, PEARL, MCNIFF,
CREAN, COOK & SHEEHAN, 30 Main Street, Peabody, MA 01960 .
Signed under penalties of perjury this 29th day of May,
1991.
KEVIN T. DALY
CITY SOLICITOR
One Church Street
Salem, MA 01970
Telephone No. ( 508 ) 745-0500
i
J
��unrgM
T (1li# of "$idem, cHttss�clluse##s
�Boara of �upeal
May 6, 1991
Notice is hereby given that as of May 1 , 1991 the decision
of the Board of Appeal has been filed in the office of the
City Clerk to deny the petition of Stephen Haley for Variances
to allow the sale of used cars and for storage of cars in the
repair process at 2 Goodhue St. (BPD)
BOARD OF APPEAL
Brenda M. Sumrall
Clerk of the Board
appeal from this decision,if any,shall be made pursuant to Section 17 d'
the Mass. General Laws, Chapter 808, and shall be filed within 20 days
after the date of filing of this decision in the office of the City Clerk.
pursuant to Mass. General Laws, Chapter 808, Section 11,the Variance
l not
effect ontil a copy
dec ion beering he certif cationherein 'Of Ithe C tykClerk that 20 days havfetha
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
Rgistry of Des and se recorded and noted' r
en the Owner,a Certificate ofhTitle owner of record OG
BOARD OF APPEAL
CITY OF SALEM, MASSACHUSETTS
o :.. LICENSING BOARD
Yi ONE SALEM GREEN
Tel,745-9595 Ext.345
AepTm'tE d'� Chairman,John A.Boris
CLERK Samuel L.Papalardo
JUDY DAVENPORT James M.Fleming
April 16, 1991
To Wham It May Concern:
Application for a Class II Auto Dealer License at 11 Goodhue Street was
approved by the Licensing Board in May of 1978. In December 1986, Mr. Weener
applied for an extension of premises which would include 2-11 Goodhue Street.
This application was approved by the Licensing Board as Mr. Weener had main-
tained an ongoing business. In March 1990, Mr Weener surrended his Class II
Auto Dealer License so that his tenants, Mr Russo and Mr. Guarino could apply
for a Class II Auto Dealer License at 2-11 Goodhue Street. Mr Russo and Mr
Guarino, at this time, do hold a Class II Auto Dealer License at 2-11 Goodhue
Street.
When the Licensing Board became aware of a zoning problem, the owner of the
property, Mr. Haley, was directed to the Board of Appeals for a variance.
Sincerely„
� I
4 '
John A. Boris
Chairman
BOARD OF ASSESSORS
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PEARL, MCNIFF, CREAN, COOK & SHEEHAN
COUNSELLORS AT LAW
30 MAIN STREET
JOHN J.JENNINGS(19311990) PEABODY,MASSACHUSETTS 01960-5552 THOMAS C.REGAN
SAMUEL PEARL,COUNSEL MICHAEL T.SMERCZYNSKI
JOHN A.Mc NIFR COUNSEL PEABODV(5081531-1710
MATTHEW J.KAVA NAGH
BOSTON(617)289-3456
MICHAEL 5.HOULDEN
ARTHUR J.FRAWLEY.JR.,COUNSEL FAX 150818314895
JOHN M.CREAN
LAWRENCE J.O'KEEFE
OLIVER T.COOK
WILLIAM H.SHEEHAN III
May 31, 1991
Richard Bencal Edward Luzinski
19 Goodell Street 24 Hardy Street
Salem, MA 01970 Salem, MA 01970
Arthur LaBrecque Joseph C. Correnti
11 Hazel Street 15 1/2 Station Road
Salem, MA 01970 Salem, MA 01970
Richard Febonio Mary Jane Stirgwolt
4C Arnold Drive 17 Andrew Street
Salem, MA 01970 Salem, MA 01970
John H. Grady
2 Summit Avenue
Salem, MA 01970
Re: Haley vs . Salem Board of Appeal
Essex Superior Court Civil Action No. 91-1614
Dear Sir or Madam:
Please take notice that on May 20, 1991, Stephen Haley
filed in Essex Superior Court an appeal from the April 17 ,
1991, decision of the Board of Appeal of Salem denying his
application for a variance.
A copy of the complaint filed in Superior Court and a
copy of notice filed with the City Clerk is enclosed.
Very truly yours,
William H. Sheehan III
WHS:cs
Enclosures
PEARL, MCNIFF, CREAN, COOK & SHEEIIAN
COUNSELLORS AT LAW
30 MAIN STREET
JOHN J.JENNINGS(1931-1990) PEABODY.MASSACHUSETTS 01960-5552 THOMAS C. REGAN
COUNSEL
SL, MICHAEL T.SMERCZYNSKI
SAMUEL PEAR
PEABODY 1508)531-1710 MATTHEW J. KAVANAGH
JOHN A.MCNIFF,COUNSEL
BOSTON(617)289-3456 MICHAEL S. HOULOEN
ARTHJOHN M. FAX(508)531-4895 J.FRAWLEY,JR.,COUNSEL
JOHN M.CREAN LAWRENCE J.O'KE EFE
OLIVER T.COOK
WILLIAM H.SHEEHAN III
May 20 , 1991
Josephine R. Fusco, City Clerk
m� o
Salem City Hall
Salem, MA 01970 w
r_
. lJl
-o
Re: Haley vs . Salem Board of Appeal
Essex Superior Court LA
Civil Action No.
Dear Ms . Fusco:
You are hereby notified, pursuant to Mass . Gen. Laws ,
c . 40A, Section 17 , that an action has been filed in the
Essex Superior Court appealing from the denial of a variance
by the Board of Appeal of the City of Salem sought by the
plaintiff Stephen Haley, 2 Goodhue Street, Salem,
Massachusetts . A copy of the complaint is attached to this
notice .
Very truly outs ,
� 1
William H. SheFhan III
WHS:cs
Enclosure
Trial Court of Massachusetts DOCKET NUMBER
CIVIL ACTION COVER SHEET SUPERIOR COURT DEPARTMENT �-
Essex County Division f// �'� -Y s- q
PLAINTIFF(S)
DEFENDANT(s)
Richard Bencal' Edward Luzinski .
Stephen Haley Arthur LaBrecque, Joseph Correnti, Richard
Febonio, as they are members of the Salem
ATTORNEY(S) FIRM NAME, ADDRESS AND TEL.) ATTORNEV(S) (il known( Board—of-Appeal
William H. Sheehan III, BBO #457060
Pearl, McNiff, Crean, Cook & Sheehan
30 Main Street, Peabody, MA 01960 531-1710 IATE: Gf>�?�/%/ �( �
Board of Bar Overseers # (Required) 0RIGINAL FILED IN ESSEX SUPERIOP COURT
ORIGIN CODE AND TRACK DESIGNATION
Place an ® in one box only:
1. F01 Original Complaint [] 4. F04 District Cl. Appeal c231, s. 97 (X)
❑ 2. F02 Removal to Sup. Ct. c231, s. 104 (F) ❑ 5. F05 Reactivated after Rescript; Relief from
❑ 3. F03 Retransfer to Sup. Ct. c231, s. 102C (X) judgment/order (Mass. R Civ. P. 60 (X)
FJ 6. E10 Summary process appeal (X)
TYPE OF ACTION AND TRACK DESIGNATION (See Reverse Side)
CODE NO. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE?
CO2 Zoning appeal G.L. c. 40A _ ( F ) ( I Yes XX No
1. PLEASE GIVE A CONCISE STATEMENT OF THE FACTS: (Required in ALL Types of Actions)
Plaintiff's appeal from denial of use variance by Salem Board of Appeal.
2. IN A CONTRACT ACTION (CODE A) OR A TORT ACTION (CODE B) STATE, WITH PARTICULARITY,
MONEY DAMAGES WHICH WOULD WARRANT A REASONABLE LIKELIHOOD THAT RECOVERY
WOULD EXCEED $25,000:
Not applicable.
3. PLEASE IDENTIFY, BY CASE NUMBER, NAME AND DIVISION, ANY RELATED ACTION PENDING
IN THE SUPERIOR COURT DEPARTMENT.
None
SIGNATURE OF ATTORNEY OF RECORD OR PLAINTIFF DATE
5/20/91
DISPOSITION RECEIVED
A. Judgment Entered B. No Judgment Entered BY:
❑ 1. Before jury trial or non-jury hearing ❑ 6. Transferred to District
DATE
❑ 2. During jury trial or non-jury hearing Court under G.L. c.231, — --
❑ 3. After jury verdict s.102C. DISPOSITION ENTERED
❑ 4. After court finding Disoosition Date__. BY:
COMMONWEALTH OF MASSACHUSETTS
Essex, ss . Superior Court Department
Civil Action No.
STEPHEN HALEY, )
PLAINTIFFS )
VS. )
RICHARD BENGAL, EDWARD LUZINSKI , )
ARTHUR LABRECQUE, JOSEPH CORRENTI, )
RICHARD FEBONIO, MARY JANE )
STIRGWOLT AND JOHN H. GRADY, AS )
THEY ARE MEMBERS OF THE SALEM )
BOARD OF APPEAL, )
DEFENDANTS )
COMPLAINT AND JURY DEMAND
Now comes the plaintiff Stephen Haley and complains and
says as follows :
(APPEAL FROM DENIAL OF VARIANCE, G.L. , C. 40a, SECTION 17 )
1 . The plaintiff Stephen Haley has a usual place of
business at 2 Goodhue Street, Salem, Massachusetts .
2 . The defendant Salem Board of Appeal ( hereafter
"Board" ) was , at all times material hereto, comprised of the
following individuals :
Richard Bencal , 19 Goodell Street, Salem, 14A
Edward Luzinski, 24 Hardy Street, Salem, MA
Arthur LaBrecque, 11 hazel Street, Salem, MA
Joseph C. Correnti, 15 1/2 Station Road, Salem, MA
Richard Febonio, 4C Arnold Drive, Salem, MA
Mary Jane Stirgwolt, 17 Andrew Street, Salem, MA
John H. Grady, 2 Summit Avenue, Salem, MA
3 . The plaintiff is the owner of real estate located at
2 Goodhue Street, Salem, Massachusetts ( hereafter "the
premises " ) , and is a party aggrieved within the meaning of
G.L. , c . 40A, Section 17 , by the decision of the Board dated
April 17 , 1991, and filed with the Salem City Clerk on May 1 ,
1991, a certified copy of which decision is attached hereto and
marked "A" , denying the plaintiff ' s application for a variance
to use the premises for the purpose of parking of motor
vehicles held for sale and repair.
4 . In or about April , 1991, the plaintiff filed an
application for a variance from the use requirement of the
Salem Zoning ordinance so as to permit the plaintiff to use the
premises for the purpose of parking of motor vehicles held for
sale and repair.
5 . The Board conducted a hearing of said application on
April 17 , 1991 , and voted to deny the request for variance,
which decision was filed with the City Clerk on May 1 , 1991 .
6 . The Board' s denial on April 17 , 1991 , of the
plaintiff ' s application for variance exceeded the Board' s
authority and was arbitrary, capricious and without support in
law or fact in that the plaintiff established that due to the
shape, size and topography of his land, the plaintiff , without
the requested variance, would be unable to make use of the
premises , thus incurring great economic waste and hardship and
that said variance was de minimis and could have been granted
without any detriment to the public good and without in any way
nullifying or derogating from the intent and purpose of the
zoning by-law.
7 . The Board based its decision on factors which are
totally irrelevant and immaterial to the statutory issues
involved in a variance application; thus , the Board' s decision
is contrary to law, in excess of its authority, arbitrary and
capricious .
8 . The Board's denial, premised as it is on irrelevant
and immaterial matters , is in excess of its authority because
the Board failed to exercise in accordance with law the
discretion granted to it by G.L. , c . 40A and the Salem Zoning _
Ordinance.
WHEREFORE, the plaintiff demands the following relief :
1 . That the decision of the defendant Board of Appeal
be annulled;
2 . That this Court enter an order directing the
defendant Board of Appeal to issue the requested variance to
the plaintiffs ;
3 . That the plaintiffs be granted the costs of this
appeal because the defendant Board of Appeal acted with gross
negligence, in bad faith, or with malice in denying the
plaintiffs ' request for variance; and
4 . In the alternative, that this matter be remanded to
the Board of Appeal so that it can exercise the discretion
granted to the Board by M.G.L. c . 40A.
5 . For such other relief as this Court may deem meet
and just.
Respectfully submitted,
Stephen Haley,
By his Attorney,
Williai H . Sheehan III , BBO #457060
Pearl , McNiff , Crean, Cook & Sheehan
30 Main Street
Peabody, Massachusetts 01,960
Telephone: ( 508 ) 531-1710
Dated: May 20 , 1991
of 5. ttlenf, f` ae'sadjusetfs
3- h
�goarb of '�c)1��7Pttl
DECISION ON THE PETITION OF STEPHEN HALEY FOR VARIANCES AT
2 GOODHUE ST. (BPD)
A hearing on this petition was held April 17, 1991 with the following Board
Members present: Richard Bencal, Chairman; Edward Luzinski, Joseph Correnti,
Richard Febonio and Associate Member Arthur LaBrecque. Notice of the hearing
was sent to abutters and others and notices of the hearing were properly
advertised in the Salem Evening News in accordance with Massachusetts General
Laws Chapter 40A.
Petitioner, owner of the property, is requesting variances to allow the property
to be used for sale of used cars and for storage of cars that are in the repair
process. Property is located ih':the Business Park Development District (BPD) .
The Variances which have:)been requested may be granted upon a finding of the
Board that:
a. Special conditions and circumstances exist which especially affect the lanc
building or structure involved and which are not generally affecting other
lands, buildings and structures in the same district.
b. Literal enforcement of the provisions of the Zoning Ordinance would involve
substantial hardship, financial or otherwise, to the petitioner.
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.
The Board of Appeal, after careful consideration of the evidence presented at ti
hearing,:-.and after viewing the plans, makes the following findings of fact:
1 . The property is located in the Entrance Corridor Overlay District (ECOD) .
2. The immediate abutter spoke in opposition.
3. The petitioner failed to meet the burden of proof relative to
legal hardship.
On the basis of the above findings of fact, and on the evidence presented, the
Board of Appeal concludes as follows:
1 . Special conditions do not exist which especially affect the subject
property and:not the district in general.
2. Literal enforcement of the Ordinancerwould not involve substantial
hardship to the petitioner.
3. The relief requested cannot be granted without substantial detriment to the
public good or without nullifying and substantially derogating from the int
of the district of the purpose of the Ordinance.
DECISION ON THE PETITION OF STEPHEN HALEY FOR VARIANCES AT
2 GOODHUE STREET, SALEM
page two
Therefore, the Zoning Board of Appeal voted unanimously, 0-5, against the
granting of the Variances requested. The motion to grant having failed to garner
the required four affirmative votes to pass, fails, -and the petition is denied.
VARIANCES DENIED
April 17, 1991
Richard Febonio, Member, Board of Appeal
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERf
Appeal from this decision, If any, shall be made pursuant to Section 17 of
the Mass. General Laws, Chapter 808, and shall be flied within 20 days
after the date of filing of this decision In the office of the City Clerk.
Pursuanl to Mass. Genera! Lmvs, Chapter 808, Section 11, the Variance
or Permit �r.ntel he.elo :F.:II not take effect until a copy of lila
decision, berrinrt the certit!cation cf the City Clerk that 20 days have
elapsed and no appeal has been filed, or that, If such appeal has been
flied, that it has been dismisseO or denied Is recorded In the South Essex
Registry of Deeds and Indexed under the name or the owner of record or
Is recorded and noted on the owner's Certificate of Title.
BOARD OF APPEAL'
Cl)
ti
Trr, tea[ rr1
:fix f
A TRUE COPY ATTEST
` t n
-ri
F3 w
C17Y CLERIC
OALEMr MAfOr
no I v^James Weener I Lv2^Goodhue St. BPD
STRUCTURE MATERIAL DIMENSIONS No.OF STORIES I Ne:OF FAMILIES I WARD I COST
BUILDER I14
BOARD OF APPEAL: 9/28/88 - DENIED - Variance from density and setbacks to allow
construction of a single story structure for use as an office and car repair facility.
BOARD OF APPEAL: 4/17/91 - DENIED - Variances to allow property to be used for sale
of used cars and for storage of cars in the repair process. (Stephen Haley)
PEARL, McNIFF, CREAN, COOK & SHEEHAN
COUNSELLORS AT LAW
30 MAIN STREET
JOHN J.JENNINGS(1931-1990) PEABODY.MASSACHUSETTS 019605552 THOMAS C.REGAN
SAMUEL PEARL.COUNSEL
MICHAEL T.SMERCZYNSKI
PEABODY 617)IWO89-3410
JOHN A.MC NIFF COUNSEL MATTHEW J.KAVA NAGH
BOSTON(6191 289-3456
ARTHUR J.FRAWLEY.JR.,COUNSEL MICHAEL S. HOULO EN_
FAX 15081531-4895
JOHN M.CR EAN LAWRENCE J.O'KEEFE
OLIVER T.COOK
WILLIAM H.SHEEHAN III
May 31, 1991
Richard Bencal Edward Luzinski
19 Goodell Street 24 Hardy Street
Salem, NIP. 01970 Salem, MA 01970
Arthur LaBrecque. Joseph C. Correnti
11 Hazel Street 15 1/2 Station Road
Salem, MA 01970 Salem, MA 01970
Richard Febonio Mary Jane Stirgwolt
4C Arnold Drive 17 Andrew Street
Salem, MA 01970 Salem, MA 01970
John H. Grady
2 Summit Avenue
Salem, MA 01970
Re: Haley vs . Salem Board of Appeal
Essex Superior Court Civil Action No. 91-1614
Dear Sir or Madam:
Please take notice that on May 20, 1991, Stephen Haley
filed in Essex Superior Court an appeal from the April 17 ,
1991, decision of the Board of Appeal of Salem denying his
application for a variance.
A copy of the complaint filed in Superior Court and a
copy of notice filed with the City Clerk is enclosed.
Very truly yours,
William H. Sheehan III
WHS:cs
Enclosures
PEARL. MCNIFF, CREAN, COOK & SHEEHAN
COUNSELLORS AT LAW
30 MAIN STREET
JOHN J.JENNINGS(1931-1990) PEABODY,MASSACHUSETTS 01960-5552 THOMAS C. REGAN
SAMUEL PEARL,COUNSEL MICHAEL T.SMERCZYNSKI
PEABODY 15061531-IJ 10
JOHN A.MCNIFF,COUNSEL MATTHEW J. HOULOKAVANGH
(617)BOSTON I61289-3456
ARTHUR J.FRAWLEY.JR.,COUNSEL MICHAEL S_HOULOEN
FAX(506)531-4895
JOHN M.CREAN LAWRENCE J.O'KE EFE
OLIVER T.COOK
WILLIAM H.SHEEHAN III
May 20 , 1991
n
Josephine R. Fusco, City Clerk - o
Salem City Hall
Salem, MA 01970 w
Ln
—v
Re: Haley vs . Salem Board of Appeal _-
Essex Superior Court N �o
Civil Action No.
Dear Ms . Fusco:
You are hereby notified, pursuant to Mass . Gen. Laws ,
c . 40A, Section 17 , that an action has been filed in the
Essex Superior Court appealing from the denial of a variance
by the Board of Appeal of the City of Salem sought by the
plaintiff Stephen Haley, 2 Goodhue Street, Salem,
Massachusetts . A copy of the complaint is attached to this
notice .
Very truly outs ,
1 1 �a
William H. She�ltan III
WHS:cs
Enclosure
Trial Court of Massachusetts DOCKET NUMBER
CIVIL ACTION COVER SHEET SUPERIOR COURT DEPARTMENT i° a
Essex County Division
PLAINTIFF(b) DEFENDAN T(S)
Richard Bencal Edward Luzinski
Stephen Haley Arthur LaBrecque, Joseph Correnti, Richard
Febonio, as they are members of the Salem
ATTORNEY(S) FIRM NAME.ADDRESS AND TEL.) ATTORNEYS)(il known) Board—of-Appeal
William H. Sheehan III, BBO 1/457060
Pearl, McNiff, Crean, Cook & Sheehan
30 Main Street, Peabody, MA 01960 531-1710 DATE:
Board of Bar Overseers # (Required) ORIGINAL FILED IN ESSEX SUPERIOP COURT
ORIGIN CODE AND TRACK DESIGNATION
Place an ® in one box only:
[$ 1. F01 Original Complaint [] 4. F04 District Cl. Appeal c231, s. 97 (X)
❑ 2. F02 Removal to Sup. Ct. c231, s. 104 (F) U 5. F05 Reactivated after Rescript; Relief from
❑ 3. F03 Retransfer to Sup. Ct. c231, s. 102C (X) judgment/order (Mass. R Civ. P. 60 (X)
CJ 6. E10 Summary process appeal (X)
TYPE OF ACTION AND TRACK DESIGNATION (See Reverse Side)
CODE NO. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE?
CO2 Zoning appeal G.L. c. 40A _ ( F ) ( I Yes XX No
1. PLEASE GIVE A CONCISE STATEMENT OF THE FACTS: (Required in ALL Types of Actions)
Plaintiff's appeal from denial of use variance by Salem Board of Appeal.
2. IN A CONTRACT ACTION (CODE A) OR A TORT ACTION (CODE B) STATE, WITH PARTICULARITY,
MONEY DAMAGES WHICH WOULD WARRANT A REASONABLE LIKELIHOOD THAT RECOVERY
WOULD EXCEED $25,000:
Not applicable.
3. PLEASE IDENTIFY, BY CASE NUMBER, NAME AND DIVISION, ANY RELATED ACTION PENDING
IN THE SUPERIOR COURT DEPARTMENT.
None
SIGNATURE OF ATTORNEY OF RECORD OR PLAINTIFF DATE
5/20/91
IF
tiG it.>Jw. YA.7
J DISPOSITION RECEIVED
1 A. Judgment Entered B. No Judgment Entered BY:
Cl 1. Before jury trial or non-jury hearing ❑ 6. Transferred to District
DATE
❑ 2. During jury trial or non-jury hearing Court under G.L. c.231, — ---
El3. After jury verdict s.102C. DISPOSITION ENTERED
0 4. After court finding Disoosition Date---- Br
COMMONWEALTH OF MASSACHUSETTS
Essex, ss . Superior Court Department
Civil Action No .
Ii
STEPHEN HALEY, )
PLAINTIFFS )
vs. )
)
RICHARD BENCAL, EDWARD LUZINSKI , )
ARTHUR LABRECQUE, JOSEPH CORRENTI, )
RICHARD FEBONIO, MARY JANE )
STIRGWOLT AND JOHN H. GRADY, AS )
THEY ARE MEMBERS OF THE SALEM )
BOARD OF APPEAL, )
DEFENDANTS )
COMPLAINT AND JURY DEMAND
Now comes the plaintiff Stephen Haley and complains and
says as follows :
(APPEAL FROM DENIAL OF VARIANCE, G.L. , C. 40a, SECTION 17 )
1 . The plaintiff Stephen Haley has a usual place of
business at 2 Goodhue Street, Salem, Massachusetts .
2 . The defendant Salem Board of Appeal ( hereafter
"Board" ) was , at all times material hereto, comprised of the
following individuals :
Richard Bencal , 19 Goodell Street, Salem, MA
Edward Luzinski, 24 Hardy Street, Salem, MA
Arthur LaBrecque, 11 hazel Street , Salem, MA
Joseph C. Correnti, 15 1/2 Station Road, Salem, MA
Richard Febonio, 4C Arnold Drive, Salem, MA
Mary Jane Stirgwolt, 17 Andrew Street, Salem, MA
John H. Grady, 2 Summit Avenue, Salem, MA
3 . The plaintiff is the owner of real estate located at
2 Goodhue Street, Salem, Massachusetts ( hereafter "the
premises " ) , and is a party aggrieved within the meaning of
G.L. , c . 40A, Section 17 , by the decision of the Board dated
April 17 , 1991, and filed with the Salem City Clerk on May 1 ,
1991, a certified copy of which decision is attached hereto and
marked "A" , denying the plaintiff ' s application for a variance
to use the premises for the purpose of parking of motor
vehicles held for sale and repair.
4 . In or about April , 1991 the plaintiff filed an
application for a variance from the use requirement of the
Salem Zoning Ordinance so as to permit the plaintiff to use the
i
premises for the purpose of parking of motor vehicles held for
I
sale and repair.
5 . The Board conducted a hearing of said application on
i
April 17 , 1991, and voted to deny the request for variance,
i
which decision was filed with the City Clerk on May 1, 1991 .
6 . The Board' s denial on April 17 , 1991, of the
plaintiff ' s application for variance exceeded the Board' s
authority and was arbitrary, capricious and without support in
law or fact in that the plaintiff established that due to the
shape, size and topography of his land, the plaintiff , without
the requested variance, would be unable to make use of the
premises , thus incurring great economic waste and hardship and
that said variance was de minimis and could have been granted
without any detriment to the public good and without in any way
nullifying or derogating from the intent and purpose of the
zoning by-law.
7 . The Board based its decision on factors which are
totally irrelevant and immaterial to the statutory issues
involved in a variance application; thus , the Board' s decision
is contrary to law, in excess of its authority, arbitrary and
capricious .
8 . The Board' s denial , premised as it is on irrelevant
and immaterial matters , is in excess of its authority because
the Board failed to exercise in accordance with law the
discretion granted to it by G.L. , c . 40A and the Salem Zoning
Ordinance.
WHEREFORE, the plaintiff demands the following relief :
1 . That the decision of the defendant Board of Appeal
be annulled;
2 . That this Court enter an order directing the
defendant Board of Appeal to issue the requested variance to
the plaintiffs ;
3 . That the plaintiffs be granted the costs of this
appeal because the defendant Board of Appeal acted with gross
negligence, in bad faith, or with malice in denying the
plaintiffs ' request for variance; and
4 . In the alternative, that this matter be remanded to
the Board of Appeal so that it can exercise the discretion
granted to the Board by M.G.L. c . 40A.
5 . For such other relief as this Court may deem meet
and just.
Respectfully submitted,
Stephen Haley,
By his Attorney,
Willia: H. Sheehan III , BBO #457060
Pearl , McNiff, Crean, Cook & Sheehan
30 Main Street
Peabody, Massachusetts 01.960
Telephone : ( 508 ) 531-1710
i
Dated: May 20, 1991
/:F•GBpiM
aiN of ttlem, ttssudjusetfs
DECISION ON THE PETITION OF STEPHEN HALEY FOR VARIANCES AT
2 GOODHUE ST. (BPD)
A hearing on this petition was held April 17, 1991 with the following Board
Members present: Richard Bencal, Chairman; Edward Luzinski, Joseph Correnti,
Richard Febonio and Associate Member Arthur LaBrecque. Notice of the hearing
was sent to abutters and others and notices of the hearing were properly
advertised in the Salem Evening News in accordance with Massachusetts General
Laws Chapter 40A.
Petitioner, owner of the property, is requesting variances to allow the propert}
to be used for sale of used cars and for storage of cars that are in the repair
process. Property is located ih !the Business Park Development District (BPD) .
The Variances which have:)been requested may be granted upon a finding of the
Board that:
a. Special conditions and circumstances exist which especially affect the lane
building or structure involved and which are not generally affecting other
lands, buildings and structures in the same district.
b. Literal enforcement of the provisions of the Zoning Ordinance would involve
substantial hardship, financial or otherwise, to the petitioner.
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.
The Board of Appeal, after careful consideration of the evidence presented at tl
hearing,:.and after viewing the plans, makes the following findings of fact:
1 . The property is located in the Entrance Corridor Overlay District MOD) .
2. The immediate abutter spoke in opposition.
3. The petitioner failed to meet the burden of proof relative to
legal hardship.
On the basis of the above findings of fact, and on the evidence presented, the
Board of Appeal concludes as follows:
1 . Special conditions do not exist which especially affect the :subject
property and.-not the district in general.
2. Literal enforcement of the Ordinance. would not involve substantial
hardship to the petitioner.
3. The relief requested cannot be granted without substantial detriment to the
public good or without nullifying and substantially!.derogating from the int
of the district of the purpose of the Ordinance.