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372 HIGHLAND AVENUE - ZBA (2) 372 Highland Ave. B-2 Charles Puleo (Owner) Donald,Michelle & Dana DiLisio (Pet) JJ NICHOLAS J. DECO L03 / LAWYER DECOULOS & DECOULOS -AREA CODE 506 248 ANDOVER STREET OFFICE 532-1020 PEABOOY MASS. 01960 RESIDENCE 532-0010 4 Law Offices DECOULOS & DECOULOS 248 Andover Street at Willowdale Lane Peabody, Massachusetts 01960-1598 Tel. (508) 532-1020 ,Nicholas J.Decouloe James N.Decouloe May 20, 1993 Richard A. Bencal George A. Ahmed 19 Goodell Street 102 Columbus Avenue Salem, MA 01970 Salem, MA 01970 Stephen C. Touchette Francis X. Grealish 452 Loring Avenue 8A Cleveland Road Salem, MA 01970 Salem, MA 01970 Edward J. Luzinski Arthur E. LaBrecque 24 Hardy Street it Hazel Street Salem, MA 01970 Salem, MA 01970 Ronald G. Plante Charles Puleo, Trustee of 4 Larch Avenue Puleo Realty Trust Salem, MA 01970 372 Highland Avenue Salem, MA 01970 Donald (aka David) DiLisio Michelle DiLisio 1 Alvin Road 1 Alvin Road Swampscott, MA 01907 Swampscott, MA 01907 Dana DiLisio 1 Alvin Road Swampscott, MA 01907 Dear Sirs and Madam: In accordance with the General Laws of Massachusetts, Chapter 40A, you are hereby notified that an appeal has been filed on May 7,9 , 1993 , with the Esser County Superior Court by John P. Keane, Jr. and Pamela Keane as it relates to the Variance and Special Permit granted by the City of Salem Board of Appeals to Charles Puleo, Trustee, et al. , at 372 Highland Avenue, Salem, Massachusetts. A copy of the Complaint is enclosed herewith. Very truly yours, DEEC,"�OULOSr//f& DECOULOS //�" Nich st ,J. Decoulos NJD/aw Enc. CERTIFIED MAIL RETURN RECEIPT REQUESTED COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT Q NO. JOHN P. KEANE, JR. AND /J PAMELA KEANE, Plaintiffs V. COMPLAINT RICHARD A. BENGAL, GEORGE A. AHMED, STEPHEN C. TOUCHETTE, FRANCIS X. GREALISH, EDWARD J. LUZINSKI, ARTHUR E. LABRECQUE, AND RONALD G. PLANTE AS THEY ARE THE MEMBERS OF THE BOARD OF APPEALS OF THE CITY OF SALEM, CHARLES PULEO AS HE IS TRUSTEE OF THE PULEO REALTY TRUST, DONALD DILISIO, MICHELLE DILISIO, AND DANA DILISIO, Defendants 1. The Plaintiffs, John P. Keane, Jr. and Pamela Keane, reside at 9 Riverbank Road, Salem, Essex County, Massachusetts. 2 . The following named persons are the duly appointed members of the Board of Appeals of the City of Salem (Board) : Richard A. Bencal, 19 Goodell Street, Salem, MA George A. Ahmed, 102 Columbus Avenue, Salem, MA Stephen C. Touchette, 452 Loring Avenue, Salem, MA Francis X. Grealish, 8A Cleveland Road, Salem, MA Edward J. Luzinski , 24 Hardy Street, Salem, MA Arthur E. LaBrecque, 11 Hazel Street, Salem, MA Ronald G. Plante, 4 Larch Avenue, Salem, MA 3 . The Defendant, Charles Puleo as he is Trustee of the Puleo Realty Trust (Puleo) , resides at 372 Highland Avenue, Salem, Essex County, Massachusetts. 4 . The Defendants, Donald DiLisio sometimes known as David DiLisio, Michelle DiLisio and Dana Dilisio (DiLisio) , reside at 1 Alvin Road, Swampscott, Essex County, Massachusetts. 5. The Defendants, Puleo and DiLisio, petitioned the Board to vary the terms of the Salem Zoning Ordinance as it applies to property owned by Puleo and located at 372 Highland Avenue, Salem, Massachusetts, and requested a special permit. 6 . Puleo is the owner of a parcel of property located at 372 Highland Avenue, Salem, Massachusetts. 1 7 . The property owned by the Plaintiffs abuts the property owned by Puleo and both parcels are located in a B-2 zoning district. 8 . The Board published a legal notice pursuant to the General Laws of Massachusetts. 9 . A hearing was held on April 21, 1993 , at which time the Board voted to grant the variance and special permit to Puleo and DiLisio. 10. The written decision granting the variance and the special permit , which does not comply with the General Laws of Massachusetts, Chapter 40A, was filed with the City Clerk's Office on May 4 , 1993 , a certified copy of which is attached hereto, expressly made a part hereof and incorporated herein by reference as Exhibit A. 11. The decision exceeded the authority of the Board and failed to make findings of fact that would substantiate the requirements of the General Laws. 12 . The granting of the variance does not comply with the Zoning Ordinance of the City of Salem, is in derogation of the Zoning Ordinance and of the General Laws because the variance will affect generally the zoning district in which it is located and will not involve a substantial hardship, financial or otherwise, to the petitioners. 13 . By the granting of the variance there will be a substantial detriment to the public good and will nullify or substantially derogate from the intent or purpose of the Zoning Ordinance. 14 . The granting of the special permit is not in harmony with the general purpose and intent of the Zoning Ordinance and was . not issued pursuant to General Laws Chapter 40A, Section 9 . 15. The Plaintiffs, being aggrieved by the granting of the variance, invoke the provisions of Chapter 40A, Section 17 , and seek judicial review of the approval of Puleo' s and DiLisio's application for a variance. WHEREFORE, the Plaintiffs request: 1. That the Court conduct a hearing, hear all of the evidence pertinent to the authority of the Board of Appeals to grant variances and special permits, determine the facts and upon the facts as so determined annul the decision, by making specific findings that the decision granting the variance and the special permit exceeded the authority of the Board of Appeals. 2 . That the Court notify the Building Inspector and the City Clerk to change their records accordingly and to act in accordance with the Court's judgment. 2 3 . That the Court make such other findings as justice and equity may require. Nicholas ,,J/-. Decoulos DECOULOS DECOULOS Attorney for Plaintiffs 248 Andover Street Peabody, MA 01960 Tel . (508) 532-1020 BBO #117760 May 18 , 1993 3 Trial Court of Massachusetts n' DOCKET NUMBER CIVIL ACTION COVER SHEET SUPERIOR COURT DEPARTMENT Essex Division PLAINTIFF(S) DEFENDANT(S) John P. Keane, et al. Richard A. Bencal, et als. ATTORNEY(S) FIRM NAME, ADDRESS AND TEL.) ATTORNEY(S)(if known) Decoulos & Decoulos 248 Andover Street Peabody, MA 01960 (Tel. 532-1020) Board of Bar Overseers # (Required) #117760 ORIGIN CODE AND TRACK DESIGNATION Place an A in one box only: ® 1. F01 Original Complaint ❑ 4. F04 District Ct. 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) judgmentJorder (Mass. R Civ. P. 60 (X) ❑ 6. EIC 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? C 02 Anneal - Chanter 40A (F ) ❑ Yes No 1. PLEASE GIVE A CONCISE STATEMENT OF THE FACTS: (Required in ALL Types of Actions) The Plaintiffs are aggrieved by the granting of a special permit and a variance by the Board of Appeals of the City of Salem and invoke the provisions of General Laws Chapter 40A. Jurisdiction lies with the Superior Court in this matter. 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: N/A 3. PLEASE IDENTIFY, BY CASE NUMBER, NAME AND DIVISION, ANY RELATED ACTION PENDING IN THE SUPERIOR COURT DEPARTMENT. N/A SIGN TU R9, E OF ATTOR EY OF PENORD OR PLAINTIFF DATE 5/18/93 OFFICE USE ONLY - D. NOT WRITE BELOW THIS LINE 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 5.102C. DISPOSITION ENTERED ❑ 4. After court finding Disposition Date BY: ❑ 5. After post trial motion DATE: OCAJ B-mtc 005-8/88 CLERK MAGISTRATE 'S COPY Ctu of tt1em, �zssttrl�ixsetts Poara of tAppeal of m DECISION ON THE PETITION OF DAVID, MICHELLE & DANA DILISIO (PETITIONE-RAJ , - CHARLES PULED (OWNER) FOR VARIANCE AND SPECIAL PERMIT AT 372 HIGHLAND N AVENUE (B-2) A hearing on this petition was held April 21, 1993 with the following Board Members present: Richard Bencal, Chairman; George Ahmed, Francis Grealish Jr. , Stephen Touchette and Associate Member Arthur LaBrecque. Notice of the hearing was sent to abutters and others and notices of the hearing were properly published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. Petitioner is requesting a Variance from front and rear setbacks, maximum height & type fence allowed in the ECOD and a Special Permit to allow a miniature golf course in this B-2 District. Before hearing the merits of this petition, the Board of Appeal has to consider whether or not there is a substantial and material change from a previous petition which was denied by this Board on March 10, 1993 . The Board of Appeal, after hearing the evidence presented, and after receiving Consent from the City of Salem Planning Board, voted unanimously, that there was a substantial change, said change being, petitioners have eliminated their request for commercial recreation and entertainment housing six amusement devices, petitioners changed front yard depth from 10 feet to 15 feet, petitioners will reduce the size of the building from 2 1/2 stories to 1 1/2 stories. The Board of Appeal will hear the petition. The Variance and Special Permit which has been requested may be granted upon finding by the Board that: 1. 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. 2. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioner. 3. 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. 4 . The 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. DECISION ON THE PETITION OF DAVID, MICHELLE & DANA DELISIO (PETITIONERS) , CHARLES PULEO (OWNER) FOR VARIANCE & SPECIAL PERMIT AT 372 HIGHLAND AVE. SALEM page two 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 petitioners eliminated their request for a Special Permit for a place of commercial recreation & entertainment housing six (6) amusement devices. 2. The petitioners proposed to construct a driveway, commencing at Ravenna Ave. and running along the northerly edge of the property. 3 . The petitioners have changed the front yard depth from 10 feet to 15 feet . 4 . The petitioners will reduce the size of the building from 2 1/2 stories to 1 1/2 stories. 5 . The petitioners will include live plantings along the rear fenced lot line and the front fenced lot line. 6 . The lot will be fenced along the front and side lot lines . 7. There were some residents in favor of the golf course but not the driveway. 8. There was support for both the golf course and the driveway. 9. The petitioners will install curbing from the entrance of Ravenna Ave. up to Pyburn Ave. 10. There will be an agreement with Puleo's to allow access to their restrooms . 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 exist which especially affect the subject property and not the district in general. 2 . Literal enforcement of the provisions of the Ordinance would involve substantial hardship to the petitioner. 3. Desirable relief 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. 4. The granting of the Special Permit will promote the public health, safety, convenience and welfare of the city' s inhabitants and may be a granted in harmony with the neighborhood. 5 rn: L :n N cn m � cri DECISION ON THE PETITION OF DAVID, MICHELLE & DANA DILISIO (PETITIONERS) , CHARLES PULEO (OWNER) FOR VARIANCE AND SPECIAL PERMIT AT 372 HIGHLAND AVE. SALEM page three Therefore, the Zoning Board of Appeal voted unanimously, 5-0, to grant the Variance and Special Permit requested, subject to the following conditions : 1 . Petitioner shall comply with all City and State statutes, ordina_naes;` codes and regulations. 1 2. All construction shall be done as per the plans and dimensions ry � submitted. c 3 . All requirements of the Salem Fire Department relative to smoke and, fire safety shall be strictly adhered to. 4 . Petitioner shall obtain a Building Permit. 5. A four (4 ) foot high chain link fence is to be installed on three (3) sides as shown on plans submitted. 6 . Shrubs are to be planted along the fences on the three sides as shown on plans submitted. 7 . Light fixtures on the course are not to exceed six (6) feet in height and the lighting fixtures in the parking lot are to be placed so they face away from the abutting properties . 8. Hours of operation are to run from 9:00 a.m. to 10:00 p.m. , Mondays through Sundays . 9. Curbing is to be installed along numbers 1, 3, & 5 Ravenna Ave. and numbers 1 & 2 Pyburn Ave. 10, A barrier is to be placed at the end of the driveway exiting onto Ravenna at the end of each business day. 11 . The petitioners will. take immediate steps to remedy any complaints . 12. No loudspeakers will be allowed. 13 . Signs shall be posted stating that the bathrooms at Puleo' s may be used without purchasing any food. Variance & Special Permit Granted April 21, 1993 AStepen C. Touchette, Vice Chairman Board of Appeal DECISION ON .THE PETITION OF DAVID, MICHELLE & DANA DILISIO (PETITIONERS) , CHARLES PULEO (OWNER) FOR VARIANCE & SPECIAL PERMIT AT 372 HIGHLAND AVE. , SALEM page four A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certification of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or, .is recorded and noted on the owner's Certificate of Title. BOARD OF APPEAL n a a s m O L v:: N cn cL� A TRUE COPY A ST: �CITY CLERK of �ttlem, �zsstzcltusetts 'Evart of }zenl r • � s �i r �s DECISION ON THE PETITION OF DAVID, MICHELLE & DANA DILISIO (PETITIONERS) , CHARLES PULEO (OWNER) FOR VARIANCE AND SPECIAL PERMIT AT 372 HIGHLAND AVENUE (B-2) A hearing on this petition was held April 21, 1993 with the following Board Members present: Richard Bencal, Chairman; George Ahmed, Francis Grealish Jr. , Stephen Touchette and Associate Member Arthur LaBrecque. Notice of the hearing was sent to abutters and others and notices of the hearing were properly published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. Petitioner is requesting a Variance from front and rear setbacks, maximum height & type fence allowed in the ECOD and a Special Permit to allow a miniature golf course in this B-2 District. Before hearing the merits of this petition, the Board of Appeal has to consider whether or not there is a substantial and material change from a previous petition which was denied by this Board on March 10, 1993. The Board of Appeal, after hearing the evidence presented, and after receiving Consent from the City of Salem Planning Board, voted unanimously, that there was a substantial change, said change being, petitioners have eliminated their request for commercial recreation and entertainment housing six amusement devices, petitioners changed front yard depth from 10 feet to 15 feet, petitioners will reduce the size of the building from 2 1/2 stories to 1 1/2 stories. The Board of Appeal will hear the petition. The Variance and Special Permit which has been requested may be granted upon finding by the Board that: 1. 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. 2. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioner. 3. 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. 4. The 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. DECISION ON THE PETITION OF DAVID, MICHELLE & DANA DELISIO (PETITIONERS) , CHARLES PULEO (OWNER) FOR VARIANCE & SPECIAL PERMIT AT 372 HIGHLAND AVE. SALEM page two 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 petitioners eliminated their request for a Special Permit for a place of commercial recreation & entertainment housing six (6) amusement devices. 2. The petitioners proposed to construct a driveway, commencing at Ravenna Ave. and running along the northerly edge of the property. 3. The petitioners have changed the front yard depth from 10 feet to 15 feet. 4 . The petitioners will reduce the size of the building from 2 1/2 stories to 1 1/2 stories. 5. The petitioners will include live plantings along the rear fenced lot line and the front fenced lot line. 6. The lot will be fenced along the front and side lot lines. 7. There were some residents in favor of the golf course but not the driveway. 8. There was support for both the golf course and the driveway. 9. The petitioners will install curbing from the entrance of Ravenna Ave. up to Pyburn Ave. 10. There will be an agreement with Puleo's to allow access to their .restrooms. 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 exist which especially affect the subject property and not the district in general. 2. Literal enforcement of the provisions of the Ordinance would involve substantial hardship to the petitioner. 3. Desirable relief 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. �_ a 4. The granting of the Special Permit will promote the public headtfi, L safety, convenience and welfare of the city' s inhabitants and mayA,�- granted in harmony with the neighborhood. N DECISION ON THE PETITION OF DAVID, MICHELLE & DANA DILISIO (PETITIONERS) , CHARLES PULED (OWNER) FOR VARIANCE AND SPECIAL PERMIT AT 372 HIGHLAND AVE. SALEM page three Therefore, the Zoning Board of Appeal voted unanimously, 5-0, to grant the Variance and Special Permit requested, subject to the following conditions: 1 . Petitioner shall comply with all City and State statutes, ordinance codes and regulations. ` 2. All construction shall be done as per the plans and dimensions submitted. U N 3. All requirements of the Salem Fire Department relative to smoke ani fire safety shall be strictly adhered to. - , s � 4. Petitioner shall obtain a Building Permit. `n 5. A four (4) foot high chain link fence is to be installed on three (3) sides as shown on plans submitted. 6. Shrubs are to be planted along the fences on the three sides as shown on plans submitted. 7. Light fixtures on the course are not to exceed six (6) feet in height and the lighting fixtures in the parking lot are to be placed so they face away from the abutting properties. 8. Hours of operation are to run from 9:00 a.m. to 10:00 p.m. , Mondays through Sundays. 9. Curbing is to be installed along numbers 1, 3, & 5 Ravenna Ave. and numbers 1 & 2 Pyburn Ave. 10. A barrier is to be placed at the end of the driveway exiting onto Ravenna at the end of each business day. 11. The petitioners will take immediate steps to remedy any complaints. 12. No loudspeakers will be allowed. 13. Signs shall be posted stating that the bathrooms at Puleo's may be used without purchasing any food. Variance & Special Permit Granted April 21, 1993 U Stephen C. Touchette, Vice Chairman Board of Appeal DECISION ON THE PETITION OF DAVID, MICHELLE & DANA DILISIO (PETITIONERS) , CHARLES PULEO (OWNER) FOR VARIANCE & SPECIAL PERMIT AT 372 HIGHLAND AVE. , SALEM page four A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certification of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or, is recorded and noted on the owner's Certificate of Title. BOARD OF APPEAL t � • N s .y A s � b (fit of �Sttlem, Httssttrljusetts 1- v �3ottrb of �ppeal May 4, 1993 YOU ARE HEREWITH ADVISED THAT AS OF THIS DATE THE DECISION OF THE BOARD OF APPEAL HAS BEEN FILED IN THE OFFICE OF THE CITY CLERK TO GRANT THE PETITION OF DAVID, MICHELLE & DANNA DILISIO FOR A SPECIAL PERMIT AND VARIANCE TO ALLOW A MINIATURE GOLF COURSE AT 372 HIGHLAND AVENUE. BOARD OF APPEAL BRENDA M. SUMRALL CLERK OF THE BOARD 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/Special Permit granted herein shall not take effect until a copy of the decision bearing the certification of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of title. Board of Appeal �;b (Ilit of ttlem, 'Massadjusetts attrD of 'Au i \.....: 1 hi ryyM � May 4, 1993 YOU ARE HEREWITH ADVISED THAT AS OF THIS DATE THE DECISION OF THE BOARD OF APPEAL HAS BEEN FILED IN THE OFFICE OF THE CITY CLERK TO GRANT THE PETITION OF DAVID, MICHELLE & DANNA DILISIO FOR A SPECIAL PERMIT AND VARIANCE TO ALLOW A MINIATURE GOLF COURSE AT 372 HIGHLAND AVENUE. BOARD OF APPEAL BRENDA M. SUMRALL CLERK OF THE BOARD 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/Special Permit granted herein shall not take effect until a copy of the decision bearing the certification of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of title. Board of Appeal _-,HTE OF "=ARING i-SCATIOi 0TI0N: 0 GRANT SECOND r TO DENY SECOND rl 1 70 RE-HEAR 2� SECOND )� LEAVE TO WITHDRAW SECOND 70 CONTIN UE SECOND POLL CALL 'PRESENT GRANT DENY WITHDRAW RE-HEAR I CONTINUE RICHARD BENCAL !� GEORGE A. AHMED FRANCIS GREALISH Ev�ata cv " �• "TEPHEN TOUCHETTE ASSOC:::TE :';EMBERS ARTHUR LABRECOUE ✓ CONDITIONS: a Ift 614 !t 3 = 0 l-f Z - r _ J l x, ,, Q� ,Y ,m�_ �� � � � 3t � �" _�� �r l� Pyr . �, f ter . /�/ =��f <.� . „� ' L �. � z . , � a �, iP � __ , r U ='' tfriit of -`3- ttlem, 4Hassadjuseits F �oura of �ku}TeAI p DECISION ON THE PETITION OF DAVID, MICHELLE & DANA DILISIO (PETITIONERS) , CHARLES PULEO (OWNER) FOR VARIANCE AND SPECIAL PERMIT AT 372 HIGHLAND AVENUE (B-2) A hearing on this petition was held April 21, 1993 with the following Board Members present: Richard Bencal, Chairman; George Ahmed, Francis Grealish Jr. , Stephen Touchette and Associate Member Arthur LaBrecque. Notice of the hearing was sent to abutters and others and notices of the hearing were properly published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. Petitioner is requesting a Variance from front and rear setbacks, maximum height & type fence allowed in the ECOD and a Special Permit to allow a miniature golf course in this B-2 District. Before hearing the merits of this petition, the Board of Appeal has to consider whether or not there is a substantial and material change from a previous petition which was denied by this Board on March 10, 1993. The Board of Appeal, after hearing the evidence presented, and after receiving Consent from the City of Salem Planning Board, voted unanimously, that there was a substantial change, said change being, petitioners have eliminated their request for commercial recreation and entertainment housing six amusement devices, petitioners changed front yard depth from 10 feet to 15 feet, petitioners will reduce the size of the building from 2 1/2 stories to 1 1/2 stories. The Board of Appeal will hear the petition. The Variance and Special Permit which has been requested may be granted upon finding by the Board that: 1. 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. 2. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioner. 3. 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. 4. The 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. r DECISION ON THE PETITION OF DAVID, MICHELLE & DANA DELISIO (PETITIONERS) , CHARLES PULEO (OWNER) FOR VARIANCE & SPECIAL PERMIT AT 372 HIGHLAND AVE. SALEM page two 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 petitioners eliminated their request for a Special Permit for a place of commercial recreation & entertainment housing six (6) amusement devices. 2. The petitioners proposed to construct a driveway, commencing at Ravenna Ave. and running along the northerly edge of the property. 3. The petitioners have changed the front yard depth from 10 feet to 15 feet. 4. The petitioners will reduce the size of the building from 2 1/2 stories to 1 1/2 stories. 5. The petitioners will include live plantings along the rear fenced lot line and the front fenced lot line. 6. The lot will be fenced along the front and side lot lines. 7. There were some residents in favor of the golf course but not the driveway. 8. There was support for both the golf course and the driveway. 9. The petitioners will install curbing from the entrance of Ravenna Ave. up to Pyburn Ave. 10. There will be an agreement with Puleo's to allow access to their restrooms. 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 exist which especially affect the subject property and not the district in general. 2. Literal enforcement of the provisions of the Ordinance would involve substantial hardship to the petitioner. 3. Desirable relief 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. c' 4. The granting of the Special Permit will promote the public hes&E , c safety, convenience and welfare of the city's inhabitants and mayA�' granted in harmony with the neighborhood. n r DECISION ON THE PETITION OF DAVID, MICHELLE & DANA DILISIO (PETITIONERS) , CHARLES PULEO (OWNER) FOR VARIANCE AND SPECIAL PERMIT AT 372 HIGHLAND AVE. SALEM page three Therefore, the Zoning Board of Appeal voted unanimously, 5-0, to grant the Variance and Special Permit requested, subject to the following conditions: 1. Petitioner shall comply with all City and State statutes, ordinance* codes and regulations. n < _ 2. All construction shall be done as per the plans and dimensions 0, submitted. `r N Ln 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner shall obtain a Building Permit. u� 5. A four (4) foot high chain link fence is to be installed on three (3) sides as shown on plans submitted. 6. Shrubs are to be planted along the fences on the three sides as shown on plans submitted. 7. Light fixtures on the course are not to exceed six (6) feet in height and the lighting fixtures in the parking lot are to be placed so they face away from the abutting properties. 8. Hours of operation are to run from 9:00 a.m. to 10:00 p.m. , Mondays through Sundays. 9. Curbing is to be installed along numbers 1, 3, & 5 Ravenna Ave. and numbers 1 & 2 Pyburn Ave. 10. A barrier is to be placed at the end of the driveway exiting onto Ravenna at the end of each business day. 11. The petitioners will take immediate steps to remedy any complaints. 12. No loudspeakers will be allowed. 13. Signs shall be posted stating that the bathrooms at Puleo's may be used without purchasing any food. Variance & Special Permit Granted April 21, 1993 SteP hen C. Touchette, Vice Chairman Board of Appeal DECISION ON THE PETITION OF DAVID, MICHELLE & DANA DILISIO (PETITIONERS) , CHARLES PULEO (OWNER) FOR VARIANCE & SPECIAL PERMIT AT 372 HIGHLAND AVE. , SALEM page four A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certification of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or, is recorded and noted on the owner's Certificate of Title. BOARD OF APPEAL x N� JAMES M. FLEMING ATTORNEY AT LAW 47 BUFFUM STREET SALEM, MASSACHUSETTS 01970 April 2 , 1993 Richard Bencal, Chairman Board of Appeal One Salem Green Salem, MA 01970 Re: New Petition for Variance and Special Permit at 372 Highland Avenue and Request for Determination of Specific and Material Change Dear Chairman Bencal: I represent David, Dana and Michelle DiLisio of 1 Alvin Road, Swampscott, Ma. Under the authority of a letter agreement from the Puleo Realty Trust, the owner of real property located at 372 Highland Avenue, the DiLisios, on March 10, 1993 , petitioned the Board of Appeal for a Special Permit to utilize the real estate for a miniature golf course and a place of entertainment and recreation housing six (6) amusement devices. The DiLisios also requested variances from the front yard and rear yard requirements of the Zoning Ordinance. The petition for the Special Permit and Variances was defeated by a vote two (2) members in the affirmative and three (3) members in the negative. The DiLisios have now prepared a new petition for the utilization of 372 Highland Avenue. Under the provisions of Massachusetts General Laws, Chapter 40A, Section 16, that petition cannot be acted upon by the Board of Appeal, unless the Board of Appeal consents thereto, by finding that the new petition is specifically and materially changed from the previous petition. I offer that the new petition is specifically and materially changed in the following manner: 1. The new petition seeks soley a Special Permit for use of the real property as a miniature golf course, eliminating the request for a Special Permit for a place of commercial recreation and entertainment housing six (6) amusement devices. 2 . The new petition includes the construction of a driveway, commencing at Ravena Avenue and accessing the property along the parcel's northerly side. This will prevent patrons coming from the direction of Lynn from utilizing the surrounding neighborhood streets. The original petition did not provide for this driveway. 3 . The new petition seeks a variance from the front yard requirement of 30 feet in the B-1 District to a depth of fifteen (15) feet. The original petition sought relief from this requirement to a depth of ten (10) feet. 4. The new petition will include a building of one and one-half (1 1/2) stories. The original petition contained a building of two and one-half (2 1/2) stories. 5. The new petition will also include live plantings along the length of the rear (northerly) fenced lot line, to the ledged area. The original petition did not provide for such plantings. 6. The new petition will provide that the locus, for security reasons, and if deemed necessary by the Board of Appeal, will be fenced along the front and sidelines, with the petitioners seeking appropriate relief from the maximum fencing requirements of the Entrance Corridor Overlay District. The original petition did not provide for such fencing. I, therefore, respectfully request that you place the matter of the new petition on the Board of Appeal's Agenda for April 21, 1993 so that a determination of specific and material change may be discussed and voted upon, under the provisions of the above cited M.G.L. Ch. 40A, sec. 16. Additionally, if the Board finds specific and material change, I request that the Board consider the grant of the new petition. Thank you as always for your cooperation. cerely, G�i James M. Fleming i r 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 DAVID,MICH- ELLE&DANA DILISIO for Variances from front &rear setbacks,maximum height&type of fence &Special Permit to allow construction of a min- iature golf course at 372 HIGHLAND AVE. (B- 2)Said hearing to be held WEDNESDAY,APRIL 21,1993 AT 7:00 P.M.;ONE SALEM GREEN,2nd R floor. RICHARD A. BENGAL, Chairman April 7, 14, 1993 SN23610 i 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 DAVID,MICH. ELLE&DANA DILISIO for Variances from front &rear setbacks,maximum height&type of fence & Special Permit to allow construction of a min- , iature golf course at 372 HIGHLAND AVE. (B- 2)Said hearing to be held WEDNESDAY,APRIL 21,1993 AT 7:00 P.M.;ONE SALEM GREEN,2nd floor. RICHARD A. BENCAL, Chairman April 7, 14, 1993 - SN23610 i CITY OF SALEM BOARD OF APPEAL Ij 745.9595 Ext. 381 Will hold a public hearing for all persons inter- ested in the petition submitted by DAVID,MICH- ELLE&DANA DILISIO for Variances ttom ftont &rear setbacks,maximum height&type of fence &Special Permit to allow construction of a min- iature golf course at 372 HIGHLAND AVE. (B- 2)Saidhearing to be held WEDNESDAY,APRIL 21,1993 AT 7:00 P.M.,ONE SALEM GREEN,2nd floor. RICHARD A. BENCAL, Chairman April 7, 14, 1993 SN23610 - APPEAL CASE NO . . . . .. . . . . . . . . . . . . . . . . . of �ttl;em, ��tts$ttcf{zz Pfts J� TO THE BOARD OF APPEALS: lessees The Undersigned represent that they Xx are the &XKM of a certain parcel of land located at NO. . 372.xighland• Avenue . . . • • „ . . . . . . • • . . . . . . . . . . . . . . . . . . . � , Zonina 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. Direct Appeal r, C) c �„ N� —U �� Z reg V) 4 - • W The Application for Permit was denied by the Inspector of Buildings for the following reasons: Direct Appeal 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: Petitioners seek relief by Variance from Art. VI s.6-4 Table II Business and Industrial Density Regulations for minimum depth of front yard and minimum depth of rear yard as shown on the attached plans. Furthermore, petitioners seek a Special Permit under Art.V, s.5-3 for the construction of a miniature golf course. Lastly, if the Board of Appeal deems necessary by reason of security, the petitioners seek relief by Variance from Art. VII s.7-19 for maximum height and type of fencing permitted in an Entrance Corridor Overlay District. Owner.Puleo Realty Trust: Chas; Puleo; Tr. Address.372.$1Bhland,Ayenue, , , , Paiff, , , , , , • . Telephone. . 0M .744-6455. . . . . . . . . . . . . . . . . . . Petitionerponald7.Michelle & Dana DiLisio Address. 1, Alyin.Road • • • • Swampscott,. MA . Date. . March 232, 1993, , . , • (617) 581= 4.78. Teleph . . . . J. . . . . . . . . . . . . . . . . . . . wi.,Z� By. �ltt, Fney, James,M;, Flem�ing, , , , , , , , , , , , , , , , 47 Buffum Street, Salem, MA 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. JAMES M. FLEMING ATTORNEY AT LAW 47 BUFFUM STREET SALEM, MASSACHUSETTS 01970 April 2, 1993 Richard Bencal, Chairman Board of Appeal One Salem Green Salem, MA 01970 Re: New Petition for Variance and Special Permit at 372 Highland Avenue and Request for Determination of Specific and Material Change Dear Chairman Bencal: I represent David, Dana and Michelle DiLisio of 1 Alvin Road, Swampscott, Ma. Under the authority of a letter agreement from the Puleo Realty Trust, the owner of real property located at 372 Highland Avenue, the DiLisios, on March 10, 1993 , petitioned the Board of Appeal for a Special Permit to utilize the real estate for a miniature golf course and a place of entertainment and recreation housing six (6) amusement devices. The DiLisios also requested variances from the front yard and rear yard requirements of the Zoning Ordinance. The petition for the Special Permit and Variances was defeated by a vote two (2) members in the affirmative and three (3) members in the negative. The DiLisios have now prepared a new petition for the utilization of 372 Highland Avenue. Under the provisions of Massachusetts General Laws, Chapter 40A, Section 16, that petition cannot be acted upon by the Board of Appeal, unless the Board of Appeal consents thereto, by finding that the new petition is specifically and materially changed from the previous petition. I offer that the new petition is specifically and materially changed in the following manner: r� 1. The new petition seeks soley a Special Permit for use of the real property as a miniature golf course, eliminating the request for a Special Permit for a place of commercial recreation and entertainment housing six (6) amusement devices. 2. The new petition includes the construction of a driveway, commencing at Ravena Avenue and accessing the property along the parcel's northerly side. This will prevent patrons coming from the direction of Lynn from utilizing the surrounding neighborhood streets. The original petition did not provide for this driveway. 3 . The new petition seeks a variance from the front yard requirement of 30 feet in the B-1 District to a depth of fifteen (15) feet. The original petition sought relief from this requirement to a depth of ten (10) feet. 4 . The new petition will include a building of one and one-half (1 1/2) stories. The original petition contained a building of two and one-half (2 1/2) stories. 5. The new petition will also include live plantings along the length of the rear (northerly) fenced lot line, to the ledged area. The original petition did not provide for such plantings. 6. The new petition will provide that the locus, for security reasons, and if deemed necessary by the Board of Appeal, will be fenced along the front and sidelines, with the petitioners seeking appropriate relief from the maximum fencing requirements of the Entrance Corridor Overlay District. The original petition did not provide for such fencing. I, therefore, respectfully request that you place the matter of the new petition on the Board of Appeal's Agenda for April 21, 1993 so that a determination of specific and material change may be discussed and voted upon, under the provisions of the above cited M.G.L. Ch. 40A, sec. 16. Additionally, if the Board finds specific and material change, I request that the Board consider the grant of the new petition. Thank you as always for your cooperation. cerely, ,Z_, cyyj� James M. Fleming i JAMES M. FLEMING ATTORNEY AT LAW 47 BUFFUM STREET SALEM, MASSACHUSETTS 01970 April 2, 1993 Richard Bencal, Chairman Board of Appeal One Salem Green Salem, MA 01970 Re: New Petition for Variance and Special Permit at 372 Highland Avenue and Request for Determination of Specific and Material Change Dear Chairman Bencal: I represent David, Dana and Michelle DiLisio of 1 Alvin Road, Swampscott, Ma. Under the authority of a letter agreement from the Puleo Realty Trust, the owner of real property located at 372 Highland Avenue, the DiLisios, on March 10, 1993 , petitioned the Board of Appeal for a Special Permit to utilize the real estate for a miniature golf course and a place of entertainment and recreation housing six (6) amusement devices. The DiLisios also requested variances from the front yard and rear yard requirements of the Zoning Ordinance. The petition for the Special Permit and Variances was defeated by a vote two (2) members in the affirmative and three (3) members in the negative. The DiLisios have now prepared a new petition for the utilization of 372 Highland Avenue. Under the provisions of Massachusetts General Laws, Chapter 40A, Section 16, that petition cannot be acted upon by the Board of Appeal, unless the Board of Appeal consents thereto, by finding that the new petition is specifically and materially changed from the previous petition. I offer that the new petition is specifically and materially changed in the following manner: 1. The new petition seeks soley a Special Permit for use of the real property as a miniature golf course, eliminating the request for a Special Permit for a place of commercial recreation and entertainment housing six (6) amusement devices. 2 . The new petition includes the construction of a driveway, commencing at Ravena Avenue and accessing the property along the parcel's northerly side. This will prevent patrons coming from the direction of Lynn from utilizing the surrounding neighborhood streets. The original petition did not provide for this driveway. 3 . The new petition seeks a variance from the front yard requirement of 30 feet in the B-1 District to a depth of fifteen (15) feet. The original petition sought relief from this requirement to a depth of ten (10) feet. 4 . The new petition will include a building of one and one-half (1 1/2) stories. The original petition contained a building of two and one-half (2 1/2) stories. 5. The new petition will also include live plantings along the length of the rear (northerly) fenced lot line, to the ledged area. The original petition did not provide for such plantings. 6. The new petition will provide that the locus, for security reasons, and if deemed necessary by the Board of Appeal, will be fenced along the front and sidelines, with the petitioners seeking appropriate relief from the maximum fencing requirements of the Entrance Corridor Overlay District. The original petition did not provide for such fencing. I, therefore, respectfully request that you place the matter of the new petition on the Board of Appeal's Agenda for April 21, 1993 so that a determination of specific and material change may be discussed and voted upon, under the provisions of the above cited M.G.L. Ch. 40A, sec. 16. Additionally, if the Board finds specific and material change, I request that the Board consider the grant of the new petition. Thank you as always for your cooperation. cerely, James M. Fleming Anthony Pierro 2 Barcelona Avenue Salem, MA 01970 April 20, 1993 City Of Salem Board Of Appeal Salem, MA 01970 Gentlemen: Since I am unable to attend the hearing concerning the proposed mini- golf course on Highland Avenue, I am writing to the board to express my view. I fully support the plan for the mini-golf course. Having listened to both sides of the issue, I feel that the mini-golf proposal has been well planned and designed. It should cork well with the Puleo's Dairy ice cream operation. And in view of what could be placed on the Highland Avenue property, the impact of mini-golf is minor. As far as traffic is concerned, again in view of what could eventually be placed on the property, any changes should be acceptable. As a former Salem Police Officer involved in traffic safety, I do feel that the proposals to post "Dead End" signs on the Highland Avenue end of both Barcelona and Ravenna Avenues should strongly be considered. The Puleo's have stated that they will still be responsible for the property .and its upkeep. They have always been accessible and helpful to the neighborhood before. Sincerely, Anthony Pierro BOARD OF ASSESSORS CITY HALL PAGE: ----- n 1EQ.,'ABUTTOO!�, ClSt 3 . ............... ..... . 3 4 4 SUBJECT PROPERTY: MAP: 03 LOT- 006J SUFE: 5 51 PROPERTY ADDRESS: 0370 HIGHLAND AVENUE 376 70 6 ASSESSED OWNER PULED REALTY TRUST 8 7 PuLto �'c ARLES Ff' 9 L 7RS 0 9 MAP LOT SUFF PROPERTY ADDRESS ASSESSED OWNER MAILING ADDRESS 12 10 13 1 1 :54 07 0040 0358 HIGHLAND AVENUE ANIMAL RESCUE LE AGUE OF BOSTON P 0 BOX 265 12 CIO ARTHUR PENNY DIR OF ADM BOSTON MA 02117 16 is OJ 0062 0366 HIGHLAND AVENUE 368 PULEO REALTY TRUST 3 FREEMAN ROAD 17 14 PULEO 'CHARLES ET AL 7'Ra, SALEM MA 01970 I . . � . 1 �::: I 0064 sa . 1 20 15 id P-QLF-Q SE6LTX' TRUST 3 FREEMAN ROAD 16 PUL.EO CHARLES ET AL. TRS SALEM MA 01970 17 22 03 0065 03812' HIGHLAND AVENUE KEANE JOHN P JR 9 RIVERBANK ROAD 31* PAMELA SALEM MA 01970 24 ..... 12:1 19 AVENUE �4,�,� ULE( REALTY�"TRLFi�T--' E 20 ........ FUL.Et CI ES ;tT� 'Af'l-TRSSALEM"MA�'0'1970,."%,4,".",",.� : 271• .......... ............� ,TRUST%'�' ',� 'h,Mf-tHAN R6 fl%,': 22 PULED CHARLES ET AL. TRS SALEM MA 01970 23 (37 0057 0002 CEDAR ROAD INGEMI DOMENIC I CEDAR ROAD 30* 3 24 SALEM MA 01970 31 0 25 bb ...... 7 "CE DAR ....... 31gh 6 ........... ,,%,%,..,.%,%......... -ING17--pi ��STEP1441T' C Ill b-1 ... ......—I-- A 9 Nc , , I I .. 'EMI I J�, 27• ' ' 07 005,9 ,"',', "­5H: N, w 1 381 AiGHL'.ANb AVENUE ' 28 LETTERIA T SALEM MA 01970 37 0 29 380 39 30 .1 31 41 32 42 43 33 44 34 45 35 46 47 36 48 37 38 so 51 ........... ...... ...... 39 ...... ....... 52 40 .. .. ....... . 53 0 41 549 55 z 42 5g ;a 43 ........ ..... . 58 44 ......% 59 45 60 46 1 1 47 2o 0 63 48 64 65 .... ........ . 49 ...... . 66 50 67 68, 52 69 0 53 70 71 0 54 L2 73 55 RON 'TER M. CA .. .......% 740 56• ASSESSOR 75 �7