Loading...
1 HARRISON AVENUE - ZBA (2) Owe, k4atg:NSoh cn , 1� CITY OF SALEM9 MASSACHUSETTS Ui' qBOARD OF APPEAL CLERK.s 0 F CE 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 c MAYOR FAX: 978-740-9846 1UU5 FEB 22 P 2' 45 REQUEST FOR AN EXTENSION OF THE SPECIAL PERMIT GRANTED FOR SALEM POINT RENTAL PROPERTIES FOR THE PROPERTY LOCATED AT ONE HARRISON AVENUE R-2 At the hearing held on February 16, 2005, the Board of Appeal voted unanimously to allow a six (6)month extension for the Special Permit granted for Salem Point Rental Properties for the property located at One Harrison Avenue R-2. The six (6)month extension is based on the previous decision having been recorded at the City Clerk's office on March 3, 2004 Richard Dionne Board of Appeal TINTI, QUINN, GROVER & FREY, P.C. 222 ESSEX STREET SALEM, MASSACHUSETTS 01970-3705 WILLIAM J.TINTI TELEPHONE WILLIAM R.ARUIFF(1965- 1995) tinti®tintilaw.com (978)745-0065 • (978)744.2948 WILLIAM F.QUINN MARCIA MULFORD CINI WilliamFQuinn®aol.com TELECOPIER OF COUNSEL SCOTT M.DROVER (978)745.3369 smgrovcr@tiilaw.com ilaw.com www.tintilaw.com MARC P. FREY mpfrey@tintilaw.com January 19, 2005 Chair and Members Salem Board of Zoning Appeals 120 Washington Street Salem, MA 01970 RE: One Harrison Avenue, Salem, MA 01970 Dear Chair and Members: I represent Salem Point Rental Properties Corporation. On Feb. 18, 2004 your Board granted my client a Special Permit to renovate and use the building there as a Community Center. A copy of that decision, which will expire one year from your vote, on Feb. 17, 2005, is attached. To date, my client has not sought a building permit because it has been unable to comply with condition# 9 of the approval, which requires that it obtain and submit a letter from the Archdioceses indicating permission to use the St. Joseph's Church lot for parking during afternoon and evening hours for purposes specified in the decision. As you know, the Archdioceses of Boston has now closed St. Joseph's Church, and the future ownership and uses of that land are most uncertain. The extension of time we seek is necessary to give the applicant additional time needed to ascertain whether such parking will be allowed by the present or any future user of the church property. I have attached a copy of MGL Ch. 40A sec. 10, which allows the Board to grant such an extension in its discretion, and only requires public notice and a new hearing if that is not accomplished before the original one-year period expires. Please therefore add this request to an agenda for your January meeting. Ve,�ry/� truly yogrs, �LZCFG�t 11LL/ William F. Quinn Copy: Marcus Ortiz/Salem Point Rental Properties Massachusetts Zoning Manual Volume I of II Editor Authors Martin R. Healy Peter A. Alpert Richard J. Lettieri Cynthia M. Barr Mary T. Marshall Brian W. Blaesser Sanford M. Matathia Maryann Civitello William R. O'Reilly, Jr. Joshua Davis Gareth 1. Orsmond Robert A. Fishman Rudy B. Perkins Christopher Foster John A. Pike Richard J. Gallogly Jane Hanify Pitt Michael S. Giaimo Alexander A. Randall Martin R. Healy David P. Ries Timothy J. Hinkle Elizabeth C. Ross Christine Donelan Franklin G. Stearns Hubbard Diane C. Tillotson Richard G. Huber Benjamin B. Tymann Jonathan S. Klavens MASSACHUSETTS CONTINUING LEGAL EDUCATION Ten Winter Place I Boston,MA 02108-47511(800)966-62531 Fax(617)482-9498 w .rnde.org Keep Raising the Bar® OBTAINING VARIANCES AND SPECIAL PERMITS §10.17 • the certified decision is 'recorded in the registry of deeds for the county and district in which the land is located";and • the decision is "indexed in the grantor index under the name of the owner of record"or`recorded noted on the owner's certificate of title." G.L.c.40A, § 11,14. The requirement for recording variances and special per- mits arose for the first time as a result of 1960 Mass. Acts 326, as subsequently amended by 1962 Mass. Acts 212. See Thirty-Fifth Report of the Judicial Coun- cil of Massachusetts for 1959, Pub. Doc. No. 144, at 68, reprinted in 44 Mass. L.Q. Dec., 68 (December 1959). The requirement for recording as in effect un- der Old Chapter 40A, § 18 from 1960 until the effective date of the Zoning Act applied only to 'limited or conditional' zoning variances and special permits and was intended to protect innocent thud parties relying thereon. These recording requirements similarly apply to "an extension, modification or renewal' of a variance or special permit, and in the case of a constructively granted application,for recording a certificate issued by the municipal clerk and a copy of the application. The applicant is responsible for recording at his or her own expense. G.L.c.40A, § 11,14; see also § 10.21.3,Procedural Requirements for Constructive Grant,below. § 10.18 LAPSE OF SPECIAL PERMITS AND VARIANCES The Zoning Act sets forth differing provisions regarding lapse of special permits and variances issued under Sections 9 and 10, respectively. Zoning ordinances or bylaws are required to specify a period of time, not exceeding two years, "which shall not include such time required to pursue or await the determination of an appeal. . . from the grant thereof," in which special permits shall lapse"if a substantial use thereof has not sooner commenced except for good cause or,in the case of [a] permit for construction, if construction has not begun by such date except for good cause."G.L.c.40A, §9,1 12. Variances granted under the Zoning Act lapse by operation of law "[i]f the rights authorized . . . are not exercised within one year of the date of grant of such variance. . . ... G.L.c.40A, § 10,13.The PGA, however,has discretion to extend the one-year period by up to six months if the grantee of the variance applies for such an extension within the one-year period and the PGA grants the extension within 30 days after the application. 1984 Mass. Acts 195. It would seem that the extension may be granted at any public meeting of the PGA and Supp. 2002 10-51 / §10.18 MASSACHUSETTS ZONING MANUAL Vwithout notice or a hearing. Alternatively, no reason appears why the extension could not be granted at the same time as the initial variance. There is no provi- sion for appeal from such an extension, and there is no stated requirement for issuance or recording of a written decision. No cases construe what constitutes commencement of construction for purposes of special permits issued under G.L.c.40A, § 9. The case law decided under G.L. c.40A, §§ 6 and I 1 construing whether construction has "commenced" under a building permit or special permit so as to freeze applicable zoning may be considered but has not been judicially determined to be definitive in deter- mining whether construction has commenced for purposes of avoiding lapse of a special permit.Smith v. Board of Appeals of Brookline, 366 Mass. 197,200, 316 N.E.2d 501, 503 (1974); Alexander v. Building Inspector of Provincetown, 350 Mass. 370, 374-75, 214 N.E.2d 876, 878-79 (1966); Murphy v. Board of Se- lectmen of Manchester, I Mass.App.Ct. 407, 409-10, 298 N.E.2d 885, 887-88 (1973). It is not clear whether commencement of construction on one of several independent buildings is sufficient as to buildings that have not been started. However, in Bernstein v. Chief Building Inspector and Building Commissioner of Falmouth, 52 Mass.App.Ct.422,754 N.E.2d 133 (2001),the court gave com- fort in the context of a multiphased condominium project that utility infrastruc- ture work relating to the later phases of the condominium was enough to prevent the special permit from lapsing for the later phases of the condominium even after a number of years of intervening inaction. In Bernstein, a 1986 special permit authorized"Building Five" as the last phase of a condominium project. By 1989, the first four buildings had been con- structed. Modifications to the special permit were granted three times; the sec- ond modification required commencement of construction of Building Five by October 1991, but the final modification to the special permit, granted in 1993, did not contain a deadline by when Building Five must have been constructed. Because the developer had previously installed the infrastructure, including a septic system,to support Building Five,no appeal had been taken from the 1993 modification that imposed no time limit on construction, and the plaintiffs were on notice of the possibility for future development because of language in the condominium master deed, the court found that "where a developer anticipates completing work in stages,has begun construction within two years, and a `sub- stantial use' has commenced, authority to complete the project continues absent express language to the contrary in the permit." Bernstein v. Chief Building In- spector and Building Commissioner of Falmouth, 52 Mass.App.Ct. at 427, 754 N.E.2d at 137. Therefore, the special permit remained valid for Building Five, "despite the extended pause in construction."Bernstein v. Chief Building Inspec- tor and Building Commissioner of Falmouth, 52 Mass.App.Ct. at 428, 754 N.E.2d at 138. 10-52 Supp. 2002 ZONING 40A § 10 not more than one hundred and ten per cent of the median family income of the commonwealth. Added by St.1990, c. 521, § 3. Historical and Statutory Notes St.1990, c. 521, § 3, was approved Jan. 2, used in sections two and three of this act and 1991. the term 'cities and towns' as used in section Section 9 of St.1990, c. 521, provides: five of this act shall include every city and town "Notwithstanding any general or special law of the commonwealth." to the contrary, the term 'any city or town' as § 10. Variances The permit granting authority shall have the power after public hearing for which notice has been given by publication and posting as provided in section eleven and by mailing.to all parties in interest to grant upon appeal or upon petition with respect to particular land or structures a variance from the terms of the applicable zoning ordinance or by-law where such permit granting authority specifically finds that owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the peti- tioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law. Except where local ordinances or by-laws shall expressly permit variances for use, no variance may authorize a use or activity not otherwise permitted in the district in which the land or structure is located; provided however, that such variances properly granted prior to January first, nineteen hundred and seventy-six but limited in time, may be extended on the same terms and conditions that were in effect for such variance upon said effective date. The permit granting authority may impose conditions, safeguards and limita- tions both of time and of use, including the continued existence of any particular structures but excluding any condition, safeguards or limitation based upon the continued ownership of the land or structures to which the variance pertains by the applicant, petitioner or any owner. If the rights authorized by a variance are not exercised within one year of the date of grant of such variance such rights shall lapse; provided, however, that the permit granting authority in its discretion and upon written aQplication by the grantee of such rights may extend the time�or exec such tl—u for a period not to exceed six months; and,provi e , er, that the application for such extension is filed wi suc permit granting authority prior to the expira- ' tion of such one year period. If the permit granting authority does not grant such extension within thirty days of the date of application therefor, and upon the expiration of the original one year period, such rights may be reestablished only after notice and a new hearing pursuant to the provisions of this section. A e y St.1975, c. O8, 3. Amendey S[.1977, c. 829, § 4B; St.1984, c. 195. 165 i ' w CITY OF SALEM9 MASSACHUSETTS/ry OF SALEM 1 BOARD OF APPEAL CLERI('g 6FF16E A 120 WASHINGTON STREET, 3RD FLOOR SALEM, MA 01970 TEL. (978) 746.9895 STANLEY J. LISOVICZ, JR. FAX (878) 740.9848 1004 HAR _3 P 2. 36 MAYOR I IIIIIIII IIIIIII IIIIIIIII VIII 2004032500244 802556 22556 P$;242 03/26/2004 11:32:00 OTHER g 1/4 DECISION ON THE PETITION OF SALEM POINT RENTAL PROPERTIES REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT ONE HARRISON AVENUE R-2 A hearing on this petition was held on February 18, 2004 with the following Board Members present: Nina Cohen, Chairman, Richard Dionne, Stephen Harris, Nicholas Helides and Bonnie Belair. 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 requests a Special Permit to change existing non-conforming use to allow the construction of a Community Center for the property located at 1 Harrison Avenue located in a R-2 zone. The provision of the Salem Zoning Ordinance which is applicable to this request for a Special Permit is section 5-3 (2) (8), 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 Section 8-6 and 9-4, grant Special Permits for alterations and reconstruction of nonconforming structures, and for changes, enlargement, extension of expansion, of nonconforming lots, land, structures, and uses, provided however, that such change, extension, enlargement of 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. A. Special conditions and circumstances exist which especially affect the land, building or structure involved and which are not generally affecting other lands, buildings or stuctures 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, and after viewing the plans, makes the following findings of fact 2004032500244 Bk:22556 Pg:243 03/2512006 11:32:00 OTHER G0 214 CITY OF SALEM MA CLERK'S OFFICE DECISION ON THE PETITION OF SALEM POINT RENTAL PROPERTIES REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 1 HARRISON AVENUE R•2 page two 1004 MAR -3 p 2: 3b 1. Petitioner Salem Point Rental Properties seeks a Special Permit to convert an existing nonconforming one story building at One Harrison Avenue from a factory to a Community Center for the Salem Community. Petitioner, a subsidiary of the non-profit Salem Harbor Community Development Corporation, Salem Harbor CDC, plans to renovate the facility to create a locust for social service programming, meeting of community organizations and youth services such as arts and cultural activities, education and jot training. Petitioner's presentation was made by Attorney William Quinn, James Haskell, Executive Director of Salem Harbor CDC and Mark Meche, principal of Winter Street Architects, which designed 2 Petitioner states that the proposed community center will be owned and operated by Salem Harbor CDC, which will maintain a full-time director onsite during operating hours. No off street parking is currently available at the site, nor was any provided during the 25 years that it was used as a manufacturing facility with 25-30 employees. The community center projects daily use to be about 30 adults and 30 children. 3. Many members spoke in support of the proposed community center. Among proponents were Leoncido Sobiel Taino, President of the Point Neighborhood Association, Georgiane Callen, representing St. Andrew's Church which provided a grant-loan package of $20,000.00 toward the acquisition of the property. Lucy Corchado, Ward 1 Councillor, Heather Picard, a Director of North Shore Community Action Program which seeks to run programs for Salem residents at the community center, Domingo Dominguez, a business owner, Nestor Grullo, President of VOCES job training organization, Victoria Gonzales, a NSCAP Board Member, David Ramsay, a neighborhood landlord, Ivan Penn, a Salem State College student, Rocco Canitillo, a parent, Marcus Ortiz, an employee of Salem Harbor CDC and Point resident Juan Carlor Hernandez Vega, Director of Salem Cyberspace which officers computer instruction for teens at a site on Congress Street, Tano Rosario, a teen coordinator from the Beverly YMCA, and residents Alcie Maria, Miichelle Meyer, Yoleny Inca, Jose Rodrigues, Alex Baptista, Yiscleim Santos and Linda Locke. At a prior meeting held in January, the project was supported by longtime resident and volunteer Jean Gastrngdary and by Art McDonald of 193 Lafayette Street. A petition signed by 550 residents in support of the proposal was submitted to the Board. 4. Speaking in opposition to the proposed use were Lola Eanes, owner of the abutting property at 3-5 Harrison Ave., John Martin, 28 Leavitt St. and Raymond St. Pierre of 58 Salem Street. Opponents supported the notion of a community center but not the proposed location. Concerns of opponents centered around three issues: lack of parking facilities, traffic difficulties caused by increased use of the building and noise. Jean Martin of 28 Leavitt St provided the Board with an impact study estimating the number of off-street parking spaces needed in the area around the property. 5. Proponents secured verbal permission for the use of a parking lot at St. Joseph's Church during afternoon and evening hours when the lot is not needed for services, church functions or bingo, and they agreed to post a police notice on 2004032500244 Bk.21556 Pg;244 03/20/3000 11:34:00 OTHER Po 3/4 DECISION OF THE PETITION OF SALEM POINT RENTALS REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 1 HARRISON AVENUE page three Palmer Street, to inform visitors of the availability of off-street parking at the St. Joseph's lot. On the basis of the above findings of fact, and on the evidence presented at the hearing, the Board of Appeal concludes as follows; 1. Literal enforcement of the provisions of the ordinance would involve substantial hardship on the petitioner. 2. The relief requested can 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. 3. The Special Permit granted can be granted in harmony with the neighborhood and will promote the public health, safety, convenience and welfare of the City's inhabitants. Therefore, the Zoning Board of Appeal voted 4 in favor and 1 in opposition, to grant the relief requested, subject to the following conditions: 1. Petitioner shall comply with all city and state statues, codes ordinances and regulations. 2. All construction shell be done per the plans and dimensions submitted and approved by the Building Commissioner. 3. All requirements of the Salem Fire Department relative to smoke and safety shall be Strictly adhered to. 4. Petitioner shall obtain a building permit prior to beginning any construction 5. Petitioner shall obtain a Certificate of Occupancy. 6. Petitioner shall obtain approval from any City Board or Commission having jurisdiction including, but not limited to the Planning Board. 7. Hours of operations are between 8:00 a.m. to 8:00 p.m., Monday through Saturday 8. Petitioner is to create a sign showing parking in St. Joseph's lot. 9. A letter is required from the Archdioceses indicating their permission to let them use the parking lot. 10. The Board of Appeal will review the petition in 2 year/s.. ���i Special Permit Granted z lf-i" '[ 4� �-e4 CSS February 18, 2004 Nina Cohen, Chairman Board of Appeal o n a r-_< � C w vicn �y 3 w m3 o- A f , 2004032500244 Bk;22556 P9;245 03125/2004 11:32:00 OTHER Pp 4/4 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 the 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that is has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of Title. n a me w'v w or T T3 c7- N m3 W D J eta MAR 2 5 2004 1 hereby certify that 20 days have expired from the date this instrument was received, and that NO APPEAL has been filed in this office. ATrue Cop&'. � G ATTEST:,_CITY CLE—RK, Salem, Mass.