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103 HIGHLAND AVENUE - ZBA 1103 HIGHLAND AVENUE T •�1 I t �conor CITY OF SALEM9 MASSACHUSETTS BOARD OF APPEAL 5% 120 WASHINGTON STREET, 3RD FLOOR SALEM, MA 01 970 s _ A TEL. (978) 745-9595 FAX (978) 740-9846 STANLEY J. USOVICZ, JR. MAYOR DECISION ON THE PETITION OF EMILY MORGAN REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 103 HIGHLAND AVENUE R-1 2 A hearing on this petition was held on September 18, 2002, with the following Board Members present: Nina Cohen, Chairman, Stephen Harris, Joseph Barbeau and Bonnie Belair. Notice of the hearing was sent to abutters and other and notices of the hearing were properly published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. The petitioner is requesting Variances from lot size to construct a single family dwelling for the property located at 103 Highland Avenue located in an R-1 zone. The Variance which has been requested may be granted upon a finding of the Board that: a. Special conditions and circumstances exit which especially,affect the land, building or structure involved and which are not generally affecting other lands, buildings or 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. Petitioner is a prospective buyer who has entered a purchase and sale agreement with the owner of a lot at 103 Highland Avenue with the intention of building a single family home on the lot. 2. The lot in question is 4,950 square feet in area. It does not meet the zoning Ordinance's 15, 000 square foot requirement for single-family homes. It is not a grandfathered lot because it falls below the square footage required for single-family homes at the time this ordinance was enacted. Petitioner was aware that the lot did not meet the zoning requirements when she entered the purchase and sale agreement. 3. Several neighbors opposed the petition. Mr. & Mrs. Jon Lunt, abutters at 6 Greenway Road, delivered a letter describing previous dealings with the property owner, who built a home on the site despite having been denied a variance several years ago. The foundation of the earlier home was removed at the expense DECISION ON THE PETITION OF EMILY MORGAN REQUESTING A VARIANCE FOR THE PROPERTY LOCATED A 103 HIGHLAND AVENUE R-1 page two of the City of Salem. Stan Poirier of 8 Cottage Street described flooding problems that was worsened by the owner's dumping fill on this property. He indicated that the fill brought by the owner covered a storm drain installed by Mass Highway Engineers. 4. There was no showing of hardship with respect to the proposed variance. 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. Special conditions do not exist which especially affect the subject property and not the district in general. 2. Literal enforcement of the provisions of the Zoning Ordinance would not result in unnecessary hardship to the petitioner. 3. The relief requested cannot be granted without substantial detriment to the public good or without nullifying and substantially hardship derogating from the intent of the district or purpose of the Ordinance. Therefore, the Zoning Board of Appeal voted 0 in favor and 4 in opposition to grant the requested variances. Having failed to garner the four affirmative votes required to pass, the motion is defeated and the petition is denied. VARIANCE DENIED SEPTEMBER 18, 2002 �C � / t ,�uChairman NUma Cohen, 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 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 passed 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 of the owner of record or is recorded and noted on the owners Certificate of Title. Board of Appeal ry 9/�3�aoo z, City of Salem Board of Appeal'- Attn: Nina Cohen,.Chairperson Dear Board of Appeal; . I am writing with regard to the public hearing for those interested in the petition submitted by Emily Morgan requesting a variance from lot size to,construct a single family home for the property located of 103 Highland Avenue,R-1. Unfortunately, I will be away on the hearing date scheduled for September,18t', 2002, but I wish to, submit to the Board of Appeal my adamant,opposition to the granting of a variance from the lot size to construct a single family home for this property. The abutters of this property have previously logged their opposition to the Board of Appeal for granting a variance to the prior owners of this property Mr. Pappalardo and Mr. Katznpatsic.'The circumstances for the property owners in this neighborhood are the same now as they have been in the.pasta I have suffered severe ground and drainage water problems from pipes and water running through the 103 Highland Avenue property and down though my property at 10 Greenway Road. My property(home, driveway and garage) suffered severe water damage when a previous attempt to erect a home on 103 Highland Ave disroted.the water flow and the amount of water coming down from the drainage pipe and the ground water. Asa result, I have had to have my basement and garage pumped many times from the overflow:of water and for this reason I urge the Board not to grant the variance. . ds, J M. Desc� ene O'Greenway,Road Salem, MA 01970-.2868 978-744-3420 cc: Joan Lovely,Ward Councillor 1A�[ 4~ L' ,m IL �m I V <• T � t_ � F �3 �M1 1.AwY Yi >C'el J .a � n i y� }� '• jt- may. ip •}, i ♦ � .:. � ���',g[�`�` 11 � � yx-a M gyp.. S. s Qpe'y a�•ryy ' ` V k�- � w• �i' iS.FJ rx� p G ,$}ice eSF aK 6n M1'4 i �.e m �i h Y -.� `7 � .a CX3 LY-1 K:13 I V ,R ' p44:�� wLl♦ 4}.a� ._ Y . yrcr � •;,• � �_ ` ' , ' ...' Ore .� ✓ � h 5t ri c/y�7 R Ys f 1. r +tAl t C� V L17 CD C2!0 Lfn ecx:) F� m V7 --:t- September 17, 2002 To Whom This May Concern: My name is John Lunt and I live at 6 Greenway Road with my wife Marlene and our two children. We are submitting a letter and a few other items for the review of the board regarding the variance at 103 Highland Avenue. I am unable to attend tonight's meeting because I work nights. My wife planned to attend to convey our serious concerns on this matter but she, too is unable due to the very recent death of her father. I am requesting that the attached letter be read out loud. I am also supplying additional copies so all members have the opportunity to view my concerns. Thank you. Sincerely, � V John Lunt September 17, 2002 Dear Members of the Board, We have resided at 6 Greenway Road for approximately 18 years. When we purchased our house we were assured by our realtor as well as an employee of the City of Salem that the lot at 103 Highland Avenue was an undersized lot which would require a variance in order to build upon. We were also told this would be very unlikely, as long as we, direct abutter on two sides, opposed. Without going into too much detail about the past problems that have occurred on this property, We would like to explain why we oppose any variance for a single family house. We hope the members are aware that a house was built on this property around about the year 1985. This was allowed because the owner at that time submitted an altered plan showing the lot over 5,000 square feet! Some years later, the house was ordered removed. We are fully aware of what a house on this lot looks like from our back yard. We have supplied pictures of exactly what it looked like before it was removed. We would also like to bring to the Board's attention that this lot was back filled approximately 20-30 feet in order to bring this lot up to street level. Without this fill, it would be impossible to even consider building a house here. This fill was placed onto the property without any permit from the City of Salem. City code clearly states that no person shall change the grade of land by more than 2 feet without approval from a number of Boards. Violation of this ordinance is punishable by fines of $50.-$500. per day which have not been accrued or accessed to the present owner, to our knowledge. In the process of filling this lot, the owner also back filled onto our property, making approximately 3000 square feet of our land useless. If the owner of this property removed the fill from our property (as he has been ordered in 1987 and never did!), then the size of the lot at the top would not even be big enough to put a very small house. The only way to achieve 4950 square feet at street level would be to build 25 foot walls on our boundaries, south and east sides, which clearly we oppose. We are also concerned about two easements that involve our property. Included are two manhole covers on our property which have been buried by this back fill for years. One easement is with the State and the other is with Dr. John Von Weiss, (an abutter our property). The owner of this lot was ordered three times by a clerk magistrate to remove this illegal fill and to our knowledge no real attempt was ever made. Enclosed are several pictures of the construction at that time. One picture shows the actual boundary line between the two properties which is marked with a white string. It clearly shows how the lot was filled with total disregard for our property. Also enclosed you will find a copy of a City order dated 10-28-93 which states that the City will take all necessary steps to remove the fill at 103 Highland Ave. There is also a letter written by the Massachusetts District Highway Director dated 10-22-92 which states that, in fact, this fill could cause drainage problems on our property. In summary, we ask that the Board consider these concerns very carefully and request that not only this variance be denied, but also that this entire matter be turned over to the legal department for review of previous city council orders. We do not understand why this has been allowed to be heard by the Board when unresolved legal issues exist. We apologize for not being present for this very important meeting and hope you all understand that our absence does not indicate that we are not concerned, as we obviously are. Thank you for your time on this matter. Sincerely, ohn M. Lunt Marlene A. Lunt CITY OF SALEM ri In City Council,October 28, 1993 Ordered: That the city take all necessary steps to remove the fill at 103 Highland Avenue and return the lot to its original grade for the benefit of the property owner at 6 Greenway Road. AICD BF 1T FURTHER CRDDE O_ That the Legal Department apprise the appropriate city department the proper method for implementation of this order. Permits - Salem October 22, 1992 Mayor Neil J. Harrington City of Salem City Hall Washington Street Salem, MA 01970 Dear Mayor Harrington : This is to advise you that a memeber of my staff met with Mr. John Lunt of A& Greenway Road in the City of Salem regarding drainage problems at his premises. It was explained to Mr . Lunt that the drainage system beneath Highland Avenue is under the jurisdiction of the State, however , any problems which occur from the existing manhole at the bottom of the slope at his property are under the jurisdiction of the City. We did concur with Mr . Lunt that the State drainage system is either broken or plugged between the existing catch basin and the outlet area and this matter would be investigated and corrective action taken by the State. We also concur that some of the additional runoff is a result of the abutting property being filled. Again this is a matter between Mr . Lunt and the City. As always my staff is available to meet with you or your Representative on this matter . Very truly yours, 404hony P. lamanca District hway Director FJH/smc cc : Mr . Stanley Bigelow - Director of Public Works Representative Michael J. Ruane Glazebrook Hayden t September 17, 2002 To Whom This May Concern: My name is John Lunt and I live at 6 Greenway Road with my wife Marlene and our two children. We are submitting a letter and a few other items for the review of the board regarding the variance at 103 Highland Avenue. I am unable to attend tonight's meeting because I work nights. My wife planned to attend to convey our serious concerns on this matter but she, too is unable due to the very recent death of her father. I am requesting that the attached letter be read out loud. I am also supplying additional copies so all members have the opportunity to view my concerns. Thank you. Sincerely, � V , `John Lunt f September 17, 2002 Dear Members of the Board, We have resided at 6 Greenway Road for approximately 18 years. When we purchased our house we were assured by our realtor as well as an employee of the City of Salem that the lot at 103 Highland Avenue was an undersized lot which would require a variance in order to build upon. We were also told this would be very unlikely, as long as we, direct abutter on two sides, opposed. Without going into too much detail about the past problems that have occurred on this property, We would like to explain why we oppose any variance for a single family house. We hope the members are aware that a house was built on this property around about the year 1985. This was allowed because the owner at that time submitted an altered plan showing the lot over 5,000 square feet! Some years later, the house was ordered removed. We are fully aware of what a house on this lot looks like from our back yard. We have supplied pictures of exactly what it looked like before it was removed. We would also like to bring to the Board's attention that this lot was back filled approximately 20-30 feet in order to bring this lot up to street level. Without this fill, it would be impossible to even consider building a house here. This fill was placed onto the property without any permit from the City of Salem. City code clearly states that no person shall change the grade of land by more than 2 feet without approval from a number of Boards. Violation of this ordinance is punishable by fines of $50.-$500. per day which have not been accrued or accessed to the present owner, to our knowledge. In the process of filling this lot, the owner also back filled onto our property, making approximately 3000 square feet of our land useless. If the owner of this property removed the fill from our property (as he has been ordered in 1987 and never did!), then the size of the lot at the top would not even be big enough to put a very small house. The only way to achieve 4950 square feet at street level would be to build 25 foot walls on our boundaries, south and east sides, which clearly we oppose. We are also concerned about two easements that involve our property. Included are two manhole covers on our property which have been buried by this back fill for years. One easement is with the State and the other is with Dr. John Von Weiss, (an abutter our property). The owner of this lot was ordered three times by a clerk magistrate to remove this illegal fill and to our knowledge no real attempt was ever made. Enclosed are several pictures of the construction at that time. One picture shows the actual boundary line between the two properties which is marked with a white string. It clearly shows how the lot was filled with total disregard for our property. Also enclosed you will find a copy of a City order dated 10-28-93 which states that the City will take all necessary steps to remove the fill at 103 Highland Ave. There is also a letter written by the Massachusetts District Highway Director dated 10-22-92 which states that, in fact, this fill could cause drainage problems on our property. In summary, we ask that the Board consider these concerns very carefully and request that not only this variance be denied, but also that this entire matter be turned over to the legal department for review of previous city council orders. We do not understand why this has been allowed to be heard by the Board when unresolved legal issues exist. We apologize for not being resent for this very important 9 P rY p meeting and hope you all understand that our absence does not indicate that we are not concerned, as we obviously are. Thank you for your time on this matter. Sincerely, ohn M. Lunt Marlene A. Lunt �v6�c CITY OF SALEM 3 � In City CouncIl,October 28, 1993 Ordered: That the city take all necessary steps to remove the fill at 103 Highland Avenue and return the lot to its original grade for the benefit of the property owner at 6 Greenway Road. TS1JD BE TT FURTHER 01RD R. . That the Legal Department apprise the appropriate city department the proper method for implementation of this order. Permits - Salem October 22, 1992 Mayor Neil J . Harrington City of Salem City Hall Washington Street Salem, MA 01970 Dear Mayor Harrington: This is to advise you that a memeber of my staff met with Mr. John Lunt of A& Greenway Road in the City of Salem regarding drainage problems at his premises. It was explained to Mr . Lunt that the drainage system beneath Highland Avenue is under the f t w n problems jurisdiction o he State, however , any which occur from p o � the existing manhole at the bottom of the slope at his property are under the jurisdiction of the City. We did concur with Mr . Lunt that the State drainage system is either broken or plugged between the existing catch basin and the outlet area and this matter would be investigated and corrective action taken by the State. We also concur that some of the additional runoff is a result of the abutting property being filled. Again this is a matter between Mr . Lunt and the City. As always my staff is available to meet with you or your Representative on this matter . Very truly yours, / 4nho3ny P. A lamanca District hway Director FJH/smc cc: Mr . Stanley Bigelow - Director of Public Works Representative Michael J . Ruane Glazebrook Hayden ���QO�t1 bead c��pDO� ��3�30Q��QOna BaQo Professional Land Surveyors & Civil Engineers ESSEX SURVEY SERVICE. 1958 - 1986 OSBORN PALMER 1911 - 1970 BRADFORD & WEED 1885 - 1972 PLOT PLAN OF LAPID LOCATED IN SALEM , MASS. Lor 3 ,92�uE GRauNO O POOL L�7 9989 +s� U Z2' �U P / 07 ?OPO SEO LG J Z N P 2: l 8G3. Fo ��, og'Av- g✓ /CJII t//0�✓D /7 �C/�� ���,'� RISTOER R � SCALE: 2p ' 0 13 DATE: RAY Z 3 /99/5 SUR REFEPENCE: BK PG Christopher R. Mello PIS 31317 pb/' 59/ aF 19912 ` PZ4 /94 u` /9'3j 104 LOWELL STREET PEABODY,MASS.01960 (508)531.8121 FAX:(508)531.5920 `"