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LEGAL NOTICE LEGAL�NOTICE:
Cry OF SALEM
ZONING BOARD OF APPEALS �+
978-619-5685 r
Will hold a public hearing for all persons interest-d
.ed in the petition submitted by United Financial Con-!
sultants, LLC seeking Variances from lot area; lot r
,width; and front, side and rear yard setbacks;
allowance of two dwelling structures on the lot;and
allowance of five(5)parking spaces;and a special
permit to reconstruct a nonconforming structure for t
the property located at 272 JEFFERSON AVENUE„•
Salem, MA in the B7 zoning district in order to,
reconstruct a detached unit,previously demolished,.
as part of a five-unit residential condominium.
Said hearing will be held on Wednesday,Novem-r
bar 19,2008 at 6:30 p.m., 3rd floor conferences
room,120 Washington Street,Room 313.
Robin Stein 1
Chair +
SN.-11/5,11/12/08
�oNmrq.� CITY OF SALEM, MASSACHUSETTS
BOARD OF APPEAL
120 WASHINGTON STREET, 3RD FLOOR
j SALEM, MASSACHUSETTS O 1970
~ TELEPHONE: 978-745-9595
FAX: 978-740-9846 pp f-1
KIMBERLEY DRISCOLL 2009 JUN -U P i= 38
MAYOR
FILE #
C!TY CLE�I'K, SAUri'£, SASS,
June 8, 2009
Decision
City of Salem Zoning Board of Appeals
Petition of UNITED FINANCIAL CONSULTANTS, LLC, seeking Variances from
minimum lot area, minimum lot width, and minimum front, side and rear yard
setbacks; allowance of two dwelling structures on the lot; and allowance of five (5)
parking spaces; and a Special Permit to reconstruct a nonconforming structure, in
order to reconstruct a detached unit,previously demolished, as part of a five-unit
residential condominium, on the property located at 272 JEFFERSON AVENUE,
Salem, MA (Bl zoning district).
A public hearing on the above Petition was opened on November 19, 2008 pursuant to
Mass General Law Ch. 40A, §§ 11. The meeting was closed on May 20, 2009 with the
following Zoning Board of Appeals members present: Robin Stein (Chair), Rebecca
Curran, Beth Debski, Richard Dionne, and Jimmy Tsitsinos (alternate).
Petitioner seeks Variances pursuant to the Salem Zoning Ordinance, §6-1, Residential
Uses, and §64, Table II: Business and Industrial Density Regulations. Petitioner also
seeks a Special Permit pursuant to Salem Zoning Ordinance, §5-3 6), Special Permit
Uses: Extension of Nonconformity.
Statements of fact:
1. In a decision dated December 7, 2005, the Board of Appeals granted the relief
needed to allow the reconstruction of a detached unit, previously demolished, as
part of a five-unit residential condominium. A Special Permit and Variances were
granted with eighteen (18) conditions to the petitioner and owner at the time,
Dean Borders.
2. Reconstruction of the unit was never completed, and several of the Board of
Appeal's conditions were not met. The Building Commissioner ordered the
remainder of the unit, which had been only partially demolished, to be torn down
completely. The property was foreclosed on by its mortgager, United Financial
Consultants LLC, which then acquired the property from itself at auction.
3. Since the demolition of the detached fifth unit, the owners of the four units in the
front building have had difficulty selling and refinancing their units.
2
Additionally, the owners of the four existing units have incurred expenses from
higher insurance,required construction of a fence around the demolition site,
costs of demolition, and the nonpayment of condominium association fees from
the fifth unit for some of the time the unit remained unoccupied.
4. In a petition dated October 28, 2008, the current owner and petitioner, United
Financial Consultants LLC, requested Variances from minimum lot area,
minimum lot width, and minimum front, side and rear yard setbacks; and a
Special Permit to reconstruct the unit, which was a nonconforming structure. The
Building Commissioner determined that the petitioner also required Variances for
the allowance of two dwelling structures on the lot and allowance of five (5)
parking spaces, in order to complete the reconstruction.
5. Attorney George Atkins presented the petition on behalf of the United Financial
Consultants LLC. A public hearing on the Petition was opened on November 19,
2008, pursuant to Mass General Law Ch. 40A, §§ 11. The hearing was continued
to January 21, 2009, February 18, 2009, March 18, 2009, April 15, 2009, and May
20, 2009, when it was closed, with the following Zoning Board of Appeals
members present: Robin Stein (Chair), Rebecca Curran, Beth Debski, Richard
Dionne, and Jimmy Tsitsinos (alternate).
6. The petitioner submitted revised plans following the hearings on November 19,
2008, March 18, 2009, and April 15, 2009.
7. The original plans submitted showed a reconstructed unit with a different
configuration than the original structure in order to create additional space to
bring the parking into conformance with zoning; the original plan had not shown
sufficient parking area to meet zoning requirements.
8. Opposition to the petition was voiced at the November 19, 2008 meeting.
Attorney Anthony Keck, representing the owners of units 2, 4 and 5 of 272
Jefferson Avenue, objected to a plan that used common space of the
condominium without the consent of the association. He also raised objections to
the design of the unit and the parking configuration. Several other abutters
objected to anything being reconstructed in that space and cited concerns about
snow storage and aesthetics.
9. Support for the petition was voiced by Colin Martin, the owner of 272 Jefferson
Avenue, unit 3, who urged the rapid reconstruction of unit 1 because he had been
unable to sell his unit due to the demolition.
The Board expressed concern that if they approved the plan before them, the
petitioner would not have the legal right to construct it because it used common space
belonging to the entire condominium association. Since some of the unit owners
objected to the plan, permission to use the common space would likely not be granted
and the petitioner would have to come back to the Board with another proposal. The
Board asked the petitioner to rethink his proposal.
3
10. Following comment from the public hearing on November 19, 2008, the applicant
submitted a revised plan dated March 13, 2009 showing plans for the
reconstruction of unit 1 that approximated the original footprint. The applicant
appeared before the Board again on April 15, 2009 and presented the revised
application. Attorney Atkins stated that negotiations for a buyout plan of unit 1
by the other unit owners had been unsuccessful.
11. At the April 15, 2009 meeting, owners of units 2, 4 and 5 again expressed
opposition to the plan, stating they would not oppose reconstruction if it were
done in the same footprint as the original, but they felt the proposed building was
too large. The owner of unit 3 was not present, and Attorney Keck stated that this
unit was in foreclosure.
12. Board members also expressed concern that while the building design was closer
to the original than the prior submittal, the dimensions were not exactly the same.
Members of the Board expressed that they preferred a design in exactly the same
footprint and with the same dimensions as the original. The applicant conceded
that some of the calculations of the building's dimensions were incorrect.
13. Following public comments and Board feedback at the April 15, 2009 meeting,
the applicant submitted revised plans showing construction of a reproduction of
the original building, on what was estimated to be the exact same footprint as the
original, with the exception of a one-foot perimeter setback from the property
line, where none had originally existed. The petitioner again appeared before the
Board at its May 20, 2009 meeting and presented the revised plans.
14. At the May 20, 2009 meeting, opposition was voiced by several abutters who
wished to see no rebuilding at all. However,residents of units 2, 4 and 5 of 272
Jefferson Avenue, represented by Attorney Keck, did not oppose the
reconstruction as proposed, so long as the petitioner altered the plans to shorten
the porch and not block parking areas during construction.
15. At its meeting on May 20, 2009, the Board of Appeals voted five (5) in favor and
none (0) opposed to grant the Variances and Special Permit required to allow the
reconstruction of unit 1 as proposed in the revised plan dated May 12, 2009
prepared by Winter Street Architects, Inc.
The Board of Appeal, after careful consideration of the evidence presented at the public
hearing, and after thorough review of the plans and petition submitted, makes the
following findings:
1. Special conditions and circumstances exist affecting the parcel or building, which
do not generally affect other land or buildings in the same district;
2. Literal enforcement of the provisions of this ordinance would involve substantial
hardship, financial or otherwise, to the appellant;
4
3. Desirable relief may be granted without substantial detriment to the public good
and without nullifying or substantially derogating from the intent or purpose of
the zoning ordinance, since the proposed plan is a reconstruction of a building that
existed previously;
4. The applicant may vary the terms of the Residential One-Family District to
construct the proposed development, which is consistent with the intent and
purpose of the City of Salem Zoning Ordinance;
5. In permitting such change, the Board of Appeals requires certain appropriate
conditions and safeguards as noted below.
On the basis of the above findings of fact and all evidence presented at the public hearing
including, but not limited to, the Plans, Documents and testimony, the Zoning Board of
Appeals concludes:
1. To allow for the reconstruction of the condominium unit as proposed, the
requested Variances from dimensional, density and parking requirements are
granted.
2. To allow for the reconstruction of a structure with a nonconforming use, the
'requested Special Permit is granted.
In consideration of the above, the Salem Board of Appeals voted, five (5) in favor
(Curran, Stein, Tsitsinos, Debski and Dionne) and none (0) opposed, to grant petitioner's
requests for a Variance and Special Permit subject to the following terms, conditions,
and safeguards:
1. Petitioner shall comply with all city and state statutes, ordinances, codes and
regulations.
2. All construction shall be done as per the plans and dimensions submitted to and
approved by the Building Commissioner.
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 prior to beginning any construction.
5. Exterior finishes of the new construction shall be in harmony with the existing
structure.
6. A Certificate of Occupancy is to be obtained.
7. A Certificate of Inspection is to be obtained.
8. Petitioner shall obtain street numbering from the City of Salem Assessor's Office
and shall display said numbers so as to be visible from the street.
5
9. Petitioner is to obtain approval from any City Board or Commission having
jurisdiction including,but not limited to the Planning Board.
10. Construction vehicles cannot be parked permanently on the site.
11. No dumpster on the site may block parking at any time.
12. Any common areas of the condominium—including the fence—that sustains any
damage shall be restored to its original condition.
xxt� Jin JAM
Robin Stein, Chair
Salem Zoning Board of Appeals
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 of filing of this decision in the office of the City Clerk.
Pursuant to the 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 certificate of the City Clerk has
been filed with the Essex South Registry of Deeds.
JONATHAN GOLD
GOUNSELLOR AT LAw
873 BEAGON STREET, SUITE 12 �°d p
BOSTON, MASSACHUSETTS 02215 RE'rpm•,��*' UD
TELEPHONE (617)375-0006 AUG 1 } 2009 YY��
FACSIMILE (617) 236-6994
0_PT. r; PLAWMG Z
August 7, 2009 corow li i;Llp'x OPP� �tT
Thomas H. Driscoll, Jr., Clerk of the Courts-Magistrate
Essex County Superior Court Department
Superior Court House
34 Federal Street
Salem, Massachusetts 01970
RE: Joshua R. Levesque, Kevin C McGrath and Rayleen H McGrath v
United Financial Consultants, LLC, and Rebecca Curran Beth Debski
Richard Dionne, Robin Stein, Jimmy Tsitsinos Annie Harris and Bonnie
Belair, Being Regular and Alternate Members of the Zoning Board of
Appeals of the City of Salem, Massachusetts Essex Superior Court
Civil Action No. 2009-1178A
Dear Clerk of the Courts-Magistrate Driscoll:
In connection with the above-captioned case, please find enclosed for
filing and docketing in the usual manner the following:
1. Notice of Appearance of Jonathan Gold, Esq., for the Defendant, United
Financial Consultants, LLC; and,
2. Certificate of Service pursuant to Superior Court Standing Order No. 1-88.
Thank you for your assistance in this matter.
QVerrulyyours,
ld, Esq.
Attorney for Defendant United Financial
Consultants, LLC
cc: John H. Carr, Jr., Esq.
George W. Atkins, III, Esq.
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT
CIVIL ACTION NO. 2009-1178A
JOSHUA R. LEVESQUE, KEVIN C. MCGRATH and )
RAYLEEN H. MCGRATH, )
Plaintiffs, )
V. )
UNITED FINANCIAL CONSULTANTS, LLC, and )
REBECCA CURRAN, BETH DEBSKI,RICHARD )
DIONNE, ROBIN STEIN, JIMMY TSITSINOS, )
ANNIE HARRIS and BONNIE BELAIR, BEING )
REGULAR and ALTERNATE MEMBERS OF THE )
ZONING BOARD OF APPEALS OF THE CITY )
OF SALEM, MASSACHUSETTS, )
Defendants. )
NOTICE OF APPEARANCE
Please notice the appearance of Jonathan Gold, Esquire, of the Law Office of
Jonathan Gold, as counsel for the Defendant,United Financial Consultants, LLC, in the
above captioned case.
Q
ancial Consultants, LLC
rney,
old, Esquire (BBO#561433)
Law Office of Jonathan Gold
873 Beacon Street, Suite 12
Boston, Massachusetts 02215
(617) 375-0006
Dated: August 7, 2009
CERTIFICATE OF SERVICE
I hereby certify that the above document is being served within the time required
by Superior Court Standing Order No. 1-88 or by lea y o he Regional Administrative
Justice. I further certify that on August 7, 2009, I s rued a true copy of this document
upon the attorney of record for each party by first lass in il, postage prepaid.
Jo awGold
RECEIVED
John H. Carr, Jr., Esq.
JUN 25 2009 9North Street
Salem, MA 01970
DEEPT.G?-P'k94WG& Phone: 978-825-0060
COrIi,A IIYOEALOPA19ff Fax: 978-825-0068
2002 till] 25 R in: S9
June 25, 2009 ''I.i it
CITY CLDIiti. !. i,i i Aaa.
By Hand
Salem City Clerk
City Hall
93 Washington Street
Salem, MA 01970
Re: Joshua R. Levesque, et al. v. United Financial Consultants, LLC, et al.
Dear Madam Clerk:
Enclosed please find:
1. Notice To Salem City Clerk Of Appeal To Essex Superior Court From June 8,
2009 Decision Of Salem Board Of Appeal Granting Variances and A Special
Permit To United Financial Consultants, LLC Concerning 272 Jefferson
Avenue, Salem, Massachusetts, including Exhibit A;
2. Attached copy of Complaint Pursuant To M.G.L. Chapter 40A, Section 17
Appealing the June 8, 2009 Decision of the Salem Zoning Board of Appeals
Granting Variances and a Special Permit at 272 Jefferson Avenue, Salem,
Massachusetts bearing the date-stamp and docket number of the Essex
Superior Court.
Would you or someone from your office kindly date-stamp and file same, and also
acknowledge receipt of the foregoing by date-stamping the enclosed copies of this letter
and said Notice and return same with our messenger.
Thank you in advance for your attention to the foregoing.
ZVerHand
Enc.
cc Mr. Thomas St. Pierre, Salem uild
Mr. Joshua R. Levesque—By H
Mr. Kevin C. McGrath—By Hand
Mrs. Rayleen H. McGrath—By Hand
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT
CIVIL ACTION NO: 21 o?— W 79 A
JOSHUA R. LEVESQUE, KEVIN C. MCGRATH, and )
2CC4 A"N 25 A Ea' Sq
RAYLEEN H. MCGRATH, )
PLAINTIFFS €"YC?..C;; n,._ :':, Fit
V. )
UNITED FINANCIAL CONSULTANTS, LLC, and )
REBECCA CURRAN, BETH DEBSKI, RICHARD )
DIONNE, ROBIN STEIN, JIMMY TSITSINOS, ANNIE )
HARRIS and BONNIE BELAIR, BEING REGULAR and )
ALTERNATE MEMBERS OF THE ZONING BOARD )
OF APPEALS OF THE CITY OF SALEM, )
MASSACHUSETTS, )
DEFENDANTS )
NOTICE TO SALEM CITY CLERK OF APPEAL TO ESSEX SUPERIOR COURT
FROM NNE 8,2009 DECISION OF SALEM BOARD OF APPEAL GRANTING
VARIANCES AND A SPECIAL PERMIT TO UNITED FINANCIAL CONSULTANTS,
LLC CONCERNING 272 JEFFERSON AVENUE, SALEM,MASSACHUSETTS
I, John H. Carr, Jr., attorney for the Plaintiffs in the above-entitled action, hereby give notice to
the City Clerk of the City of Salem, Massachusetts and to the Salem Zoning Board of Appeals
that said Plaintiffs have filed a civil Complaint with the Essex Superior Court appealing the June
8, 2009 Decision of the Salem Zoning Board of Appeals granting Variances and a Special Permit
to United Financial Consultants, LLC, owner of Unit 1 of"The 272 Jefferson Avenue
Condominium,"272 Jefferson Avenue, Salem, Massachusetts 01970,which property is located
in a B-1 Zoning District. Said June 8, 2009 ZBA Decision was filed with the office of the Salem
City Clerk on June 8, 2009.
A copy of said Complaint filed as Essex Superior Court Civil Action No.
on June 25, 2009, bearing the date-stamp of the Essex Superior Court, is attached hereto.
Respectfully submitted,
Joshua R. Levesque, et al,
By their atto ey,
June 25, 2009
John H. r ., Esq.
9 North eft
Salem, 019 0
978-82 -0060
BBO# 07 1
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERI013CDLTR1Pc
CIVIL ACTION NO: 7 (j
JOSHUA R. LEVESQUE, KEVIN C. MCGRATH, and )
RAYLEEN H. MCGRATH, )
PLAINTIFFS )
V. )
UNITED FINANCIAL CONSULTANTS, LLC, and )
REBECCA CURRAN, BETH DEBSKI, RICHARD )
DIONNE, ROBIN STEIN, JIMMY TSITSINOS, ANNIE )
HARRIS and BONNIE BELAIR, BEING REGULAR and )
ALTERNATE MEMBERS OF THE ZONING BOARD )
OF APPEALS OF THE CITY OF SALEM, )
MASSACHUSETTS, )
DEFENDANTS )
COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17
APPEALING THE JUNE 8,2009 DECISION OF THE SALEM ZONING
BOARD OF APPEALS GRANTING VARIANCES AND A SPECIAL PERMIT
AT 272 JEFFERSON AVENUE, SALEM,MASSACHUSETTS
This is an appeal from a Decision of the Salem, Massachusetts Zoning Board of Appeals
(hereinafter"ZBA"or"Salem ZBA"), dated June 8, 2009, and filed with the Salem City Clerk
on June 8, 2009, granting Variances to United Financial Consultants, LLC from(a)minimum lot
area, (b) minimum lot width, (c)minimum front, side, and rear yard setbacks, (d) minimum lot
coverage by all buildings, (e)use density to allow a fifth residential use, where the legal
maximum is three residential units, and there is already one grandfathered residential use above
the maximum, (f) structural density, to allow a second principle dwelling structure on the same
lot, (g) parking, to allow five (5)parking spaces, instead of the required 8-space minimum, and a
Special Permit to allow for the"reconstruction"of a free-standing structure with a non-
conforming use at 272 Jefferson Avenue, Salem, Massachusetts, which property is located in an
B-I zoning district, on the grounds that said ZBA Decision was arbitrary, capricious,
unreasonable, violated due process, exceeded the Board's authority, was based on legally and
factually untenable grounds, and was wrong as a matter of law.
A certified copy of said June 8, 2009 Decision is attached hereto as Exhibit A.
PARTIES
Plaintiffs
1. Plaintiff, Joshua R. Levesque,owns and resides at 268 Jefferson Avenue, Salem,
Massachusetts 01970, which property directly abuts 272 Jefferson Avenue, Salem,
Massachusetts and is located within the 300-foot notice requirement of the Salem Zoning
Ordinance.
2. Plaintiffs, Kevin C. McGrath and Rayleen H. McGrath, are husband and wife who own
and reside at 3 Arthur Street, Salem, Massachusetts, which property directly abuts 272
Jefferson Avenue, Salem, Massachusetts and is located within the 300-foot notice
requirement of the Salem Zoning Ordinance.
Defendants
3. Defendant, United Financial Consultants, LLC (hereinafter"United") is a Massachusetts
limited liability company having its usual place of business at 82 Cranberry Highway,
Orleans, Massachusetts 02653-2411, which owns Unit No 1 of The 272 Jefferson Avenue
Condominium, 272 Jefferson Avenue, Salem, Massachusetts 01970, and is the
petitioneribeneficiary of the June 8, 2009 Decision of the Salem ZBA herewith being
appealed.
4. Defendant,Rebecca Curran, who resides at 14 Clifton Avenue, Salem, Massachusetts
01970, is a regular member of the Salem ZBA who voted to grant said Variances and
Special Permit at the May 20, 2009 hearing of the Salem ZBA.
5. Defendant, Beth Debski, also known as Elizabeth Debski, who resides at 43 Calumet
Street, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to
grant said Variances and Special Permit at the May 20, 2009 hearing of the Salem ZBA.
6. Defendant, Richard Dionne, who resides at 23 Gardner Street, Salem, Massachusetts
01970, is a regular member of the Salem ZBA who voted to grant said Variances and
Special Permit at the May 20, 2009 hearing of the Salem ZBA.
7. Defendant, Robin Stein, who resides at 141 Fort Avenue, Salem, Massachusetts 01970, is
a regular member and the chairwoman of the Salem ZBA who voted to grant said
Variances and Special Permit at the May 20, 2009 hearing of the Salem ZBA.
8. Defendant, Jimmy Tsitsinos, also known as James Tsitsinos, who resides at 6C Wharf
Street, Salem, Massachusetts 01970, is an alternate member of the Salem ZBA who voted
to grant said Variances and Special Permit at the May 20, 2009 hearing of the Salem
ZBA.
2
9. Defendant, Annie Harris, who resides at 28 Chestnut Street, Salem, Massachusetts 01970,
is a regular member of the Salem ZBA who did not participate in the May 20, 2009 vote
of the Salem ZBA on United's petition.
10. Defendant, Bonnie Belair, whose mailing address is P.O. Box 685, Salem, Massachusetts
01970, is an alternate member of the Salem ZBA who did not participate in the May 20,
2009 vote of the Salem ZBA on United's petition. (This is the only address available for
Ms. Belair at the office of the Salem ZBA.)
11. All of the foregoing Plaintiffs have standing to bring this action, as all are substantially
aggrieved by the June 8, 2009 Decision of the Salem ZBA granting said Variances and
said Special Permit.
JURISDICTION
12. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the
Massachusetts General Laws.
13. This case is timely, as it has been filed within twenty (20) days from June 8, 2009,which
is when the June 8, 2009 Decision of the Salem ZBA was filed with the Salem City
Clerk.
PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS
14. 272 Jefferson Avenue, Salem, Massachusetts (hereinafter"the property") is a rectangular
parcel of land which is fifty(50) feet wide(on the street)and one hundred (100) feet
deep.
15. There is a 4-story building located almost exactly on the Jefferson Avenue sidewalk,
which building is approximately thirty-one (3 1) feet wide and thirty-six (36) feet deep.
16. The property is located in a B-1 Zoning District.
17. The existing 4-story structure consists of four(4) condominium units, each located on its
own floor of the building. In addition, the condominiums on the second, third, and fourth
floors (units 2-5 inclusive)each have exterior rear porches located directly above one
another.
18. According to the B-1 zoning for the district in which the property is located:
a. The "minimum lot area" is 25,000 square feet, as compared with 5,000 square feet for
the existing grandfathered lot;
b. The "minimum lot area per dwelling unit" is 3,500 square feet, as compared with the
grandfathered 1,250 square feet for each of the existin 4 dwelling units in the
existing grandfathered 4-story structure;
- 3 -
c. The "minimum lot width" is 100 feet, as compared with 50 feet for the width of the
existing grandfathered lot;
d. The "maximum height restriction" is 3'/2 stories, as compared with the existing
grandfathered 4-story structure;
e. The "minimum front yard setback" is 15 feet, as compared with the existing
grandfathered front yard setback of approximately 17 inches;
f. The "minimum side yard setbacks" are 20 feet, as compared with the existing
grandfathered left side yard setback of approximately 3 '/z feet, and the existing right
side yard setback of approximately 14 feet.
19. Thus, the existing lot and structure at the 272 Jefferson Avenue property already exceeds
in several material respects the required maximums or minimums permitted in a B-1
Zoning District, both in terms of structure and use, even before taking into account the
impact of the multiple Variances and Special Permit for the new residential structure
approved by the Salem ZBA in its June 8, 2009 Decision.
20. In 2004 272 Jefferson Avenue, Salem, Massachusetts was owned by Dean Borders
(hereinafter"Borders"),which property then consisted of two grand-fathered structures,
the existing 4-story structure(then as now in the same location) and a 1'/rstory separate
structure located at the right(ie. northwest) rear portion of the property.
21. By Master Deed and Declaration of Trust, both dated October 6, 2004,and recorded at
pages 1 and 13 respectively of Book 23489 at the Essex South Registry of Deeds,
Borders created"The 272 Jefferson Avenue Condominium Trust"and converted the
property into five condominium units, of which units 2-5 inclusive were located on the
first, second,third,and fourth floors (respectively)of the 4-story structure, and unit 1 was
located in the 1'h-story separate structure at the right (northwest)rear of the property.
22. Between October 6, 2004 and February 4, 2005 Borders sold each of the four
condominiums in the 4-story structure(units 2-5)to separate buyers, and retained
ownership of unit 1, ie. the 1'/z-story separate structure at the right(northwest) rear of the
property.
23. Sometime during the spring or early summer of 2005 Borders or his agents demolished
all but two exterior walls of the V/2-story structure(unit 1), removing all parts of the
building above the foundation except for said two exterior sidewalls.
24. Immediately following said demolition, the Salem Building Inspector issued a Stop Work
Order barring any further work at the site. The basis for the Stop Work Order was
Borders' failure to secure the necessary permits or zoning approvals prior to undertaking
the demolition.
- 4 -
25. . Subsequently Borders applied for multiple variances to complete the demolition and to
construct a new 1%:-story dwelling structure, which was ultimately heard by the ZBA at
its regularly-scheduled meeting of December 1, 2005.
26. By a vote of 5-0 at its December 1, 2005 meeting, the Salem ZBA granted said variances,
subject to 18 express conditions, including Condition 14, which recited in relevant part
that the "Petitioner shall initiate the construction within 30 days after this approval
becomes legally effective...[and] shall complete the work within five months from the
beginning..." Emphasis added.
27. The December 1, 2005 ZBA Decision was recorded at the Essex South Registry of Deeds
on January 26, 2006, and thus,the new 1'/rstory structure was required to be completed
on or before June 26, 2006 pursuant to Condition 14 (alone) of said Decision.
28. However, Borders did not complete the demolition, nor did he commence construction of
the new 1'h-story structure, much less complete the structure within the time frames
mandated by the December 1, 2005 ZBA Decision. Instead, nothing was done.
29. By letter dated August 24, 2006 the Salem Building Inspector declared the two walls of
the prior 1%z-story structure that remained standing to be "unsafe"pursuant to State
Building Code 780 CMR, Section 121 and ordered Borders to "begin to remove the
remaining structure within 24 hours of this notice."
30. The remaining two walls of the structure were thereupon demolished,the foundation
walls were removed, and the cellar hole was filled in.
31. Since September of 2006 the only building at the 272 Jefferson Avenue property has been
the previously existing(and grandfathered)4-story structure.
32. On June 14, 2005 Borders assigned his original mortgage to Investment Capital
Commercial Mortgage, LLC to Defendant, United Financial Consultants, LLC
("United").
33. By letter dated December 8, 2006, the Salem Building Inspector denied Borders'
application for a Building Permit to construct the new I''/z-story building, effectively
ruling that the December 1, 2005 ZBA Decision was null and void because "all 18
conditions needed to be met..." and Borders failed"to comply with condition 16, 18, and
with the time constraints of condition 14."
34. Due to Borders' default, United initiated foreclosure proceedings, and at the resulting
foreclosure sale on August 29, 2007 United purchased unit 1 at public auction for
$30,000.00.
35. By petition dated October 24, 2008, United sought multiple variances and a special
permit from the Salem ZBA to construct a new 1'/rstory structure on a 3'10" raised
foundation at the right (northwest) rear of the property.
- 5 -
36. The footprint of the proposed new rectangular V/2-story structure is 32 feet by 25 feet.
37. According to the certified plot plan filed in support of United's petition,the rear
(westerly) exterior wall of the new V/2-story structure is to be located one(1) foot from
the rear(westerly) boundary of the property, and the northerly exterior side wall is to be
located one (1) foot from the exterior northerly boundary, which boundary is contiguous
to the property owned by the Plaintiff, Joshua R. Levesque, at 268 Jefferson Avenue,
Salem, Massachusetts, and to the property owned by Plaintiffs, Kevin C. McGrath and
Rayleen H. McGrath, at 3 Arthur Street, Salem, Massachusetts.
38. In addition to the already existing grandfathered,non-conforming, 4-story structure and
grandfathered uses at the property discussed above, and the variances and special permit
applied for, the proposed new 1'/�-story structure,when added to the footprint of the
existing 4-story structure, violates the 35%"maximum lot coverage by all buildings"
restriction pursuant to the B-1 zoning for the property.
39. Hearings were held on United's October 24, 2008 petition on November 19, 2005, March
18, 2009, April 15, 2009, and May 20, 2009.
40. On May 20, 2009, by a vote of 5 to 0, the Salem ZBA granted United its within
Variances and Special Permit over the objections of the within plaintiffs.
41. The resulting June 8, 2009 Decision of the Salem ZBA incorporating said vote was filed
in the office of the Salem City Clerk on the same day.
42. As to each of the following Counts,the Plaintiffs reaffirm, re-allege, and incorporate all
of the prior allegations contained in paragraphs 1-41 inclusive above.
ARGUMENT
COUNTI
There are no special conditions and circumstances affecting the parcel
which do not generally affect other land or buildings in the same district
43. The 272 Jefferson Avenue property is a flat, rectangular parcel of land which is fifty (50)
feet wide (on the street) and one hundred (100) feet deep.
44. Aside from the existing, grandfathered 4-story structure,there have been no other
buildings at the site since September of 2006.
45. There are no ledges, cliffs, ravines, swamps, marshy areas, watercourses, or other natural
or topographical features that uniquely affect the land or proposed building.
- 6 -
46. Indeed, aside from the fact that the existing grandfathered 4-story structure is taller by
one or more stories than virtually all of the surrounding properties for a distance of
several blocks, there is nothing about the parcel which is unique or indistinguishable from
the normal (and natural) conditions of the surrounding land and buildings of the
neighborhood as a whole.
47. Thus, the Defendants cannot prove this variance requirement as a matter of law.
48. For the foregoing reasons alone,the ZBA exceeded its authority in granting said
Variances and Special Permit and said June 8, 2009 ZBA Decision must be annulled in
its entirety.
COUNT II
Literal enforcement of the provisions of the Salem Zoning Ordinance does
not involve legally-recognizable hardship, financial or otherwise, to the Petitioner
49. It is axiomatic under Massachusetts Law that the term "hardship" within the meaning of
Chapter 40A does not include any hardship which is self-created.
50. Yet by accepting the assignment of the Borders' mortgage from Commercial Mortgage,
LLC on June 14, 2005, by purchasing unit 1 at the August 29, 2007 public auction, by
paying $30,000.00 for the then demolished unit 1, and by voluntarily assuming the risk
that any future construction of a new structure would not be permitted, United had in fact
created its own hardship.
51. Thus the Defendants cannot prove this variance requirement as a matter of law.
52. For the foregoing reasons alone, the ZBA exceeded its authority in granting said
Variances and Special Permit and said June 8, 2009 ZBA Decision must be annulled in
its entirety.
COUNT III
The relief granted causes substantial detriment to the public good and nullifies and
substantially derogates from the intent and purpose of the Salem Zoning Ordinance
53. Article I, Section 1-1(a) of the Salem Zoning Ordinance, entitled"Purposes,"includes the
following explicit Purposes of said Ordinance: "to lessen congestion in the streets, ...to
secure safety from fire... and other dangers,... to prevent overcrowding of land,to avoid
undue concentration of population, to facilitate adequate provision of transportation,...to
conserve the value of land and buildings, to encourage the most appropriate use of
land..."
- 7 -
54. The Variances and Special Permit granted to United pursuant to the June 8, 2009
Decision of the Salem ZBA are contrary to the above explicit Purposes of the Salem
Zoning Ordinance.
55. In addition, the June 8, 2009 ZBA Decision violates Article IV, Section 4-1(2) of the
Salem Zoning Ordinance, entitled "Minimum regulations; uniform applicability," which
provides the following in relevant part:
(1) No...land shall here-after be used or occupied and
no building or structure...shall hereafter be erected,
constructed...unless in conformity with all
regulations herein specified for the district in
which it is located.
(2) No building or other structure shall here-after be
erected or altered:
a. To exceed the height;
b. To accommodate or house a greater
number of families;
c. To occupy a greater percentage of lot area;
d. To have narrower or smaller front yards,
side yards, rear yards or other open
spaces;
than herein specified for the district in which it is
located or in any other manner contrary to the
provisions of this ordinance. Emphasis added.
56. In addition,the June 8, 2009 ZBA Decision violates the residential density requirements
found in Table 1 of Article VI, Section 6.4 of the Salem Zoning Ordinance in the
following respects:
a. The"minimum side yard setbacks"are 20 feet, as compared with the proposed side
yard setbacks on the north and westerly sides of the proposed new 1%-story structure
of one (1) foot;
b. The proposed new 1'/z-story structure, when added to the footprint of the existing 4-
story, grandfathered structure, violates the 35%"maximum lot coverage by all
buildings" restriction pursuant to said Table 1..
57. The foregoing violations are in addition to the multiple non-conforming uses and
structure which already exist at the 272 Jefferson Avenue Property, including the
following:
- 8 -
a. The "minimum lot area" is 25,000 square feet, as compared with 5,000 square feet
for the existing grandfathered lot;
b. The "minimum lot area per dwelling unit' is 3,500 square feet, as compared with the
grandfathered 1,250 square feet for each of the existing 4 dwelling units in the
existine grandfathered 4-story structure;
c. The "minimum lot width" is 100 feet, as compared with 50 feet for the width of the
existing grandfathered lot;
d. The"maximum height restriction" is 3Y: stories, as compared with the existine
grandfathered 4-story structure;
e. The "minimum front yard setback"is 15 feet, as compared with the existing
grandfathered front yard setback of approximately 17 inches;
f. The"minimum side yard setbacks" are 20 feet, as compared with the existine
grandfathered left side yard setback of approximately 3'%feet, and the existine right
side yard setback of approximately 14 feet.
58. In addition, for the reasons hereinafter set forth in Count IV hereof,the June 8, 2009
ZBA Decision violates Section 5-30) of the Salem Zoning Ordinance, which Section
purportedly served as the basis for the illegal Special Permit the ZBA granted United in
said Decision.
59. Said Variances and Special Permit do in fact constitute substantial detriment to the public
good, not the least because of the increased fire hazard to the neighborhood as a result of
the proposed new 1'/i-story wooden structure being placed so near to the adjacent wooden
dwellings in the neighborhood, including those of the Plaintiffs.
60. Similarly, said Variances and Special Permit do in fact nullify and/or substantially
derogate from the intent and purposes of the Salem Zoning Ordinance.
61. Thus, the Defendants cannot prove this variance requirement as a matter of law.
62. For the foregoing reasons alone, the ZBA exceeded its authority in granting said
Variances and Special Permit and said June 8, 2009 ZBA Decision must be annulled in
its entirety.
COUNT IV
Section 5-30) of the Salem Zoning Ordinance does not
apply to the proposed new 1 '/:-story structure
- 9 -
63. In its October 28, 2008 Petition to the Salem ZBA, United cited"Section 5-30) of the
[Salem] Zoning Ordinance" as its purported basis"to reconstruct a nonconforming
structure."
64. Article V, Section 5-30) of the Salem Zoning Ordinance entitled"Extension of
nonconformity,"provides the following in its entirety:
0) Notwithstanding anything to the contrary appearing in
the ordinance, the board of appeals may, in accordance
with the procedures and conditions set forth in
section 8-6 and 9-4 herein, grant special permits for
alterations and reconstruction of nonconforming
structures and for change, enlargement, extension or
expansion of nonconforming lots, land, structures and
uses, provided, however,that such change, extension,
enlargement or expansion shall not be substantially
more detrimental than the existing nonconforming use
to the neighborhood, nor shall this paragraph apply to
billboards, signs or other advertising devices.
Emphasis added.
65. Section 8-6 of Article VIII of the Salem Zoning Ordinance, entitled`Board of appeals;
granting special permits,"provides the following in relevant part:
Notwithstanding anything to the contrary appearing in
this ordinance, the board of appeals may grant
special permits as authorized by section 5-30)and
section 9-4 herein when the same may be granted
without substantial detriment to the public good and
without nullifying or substantially derogating from
the intent and purpose of this ordinance.
Emphasis added.
66. Also, Subsection(a) of Article DX, Section 9-4 of the Salem Zoning Ordinance, entitled
"Special permits,"provides the following in relevant part:
(a) In hearing and deciding applications for special permits,
the board of appeals shall decide such questions as are
involved in determining whether such special permit
should be granted and...shall deny special permits
when not in harmony with the purpose and intent of
this ordinance. Emphasis added.
67. For the reasons set forth in Count III hereof, the Special Permit granted United by the
ZBA in its June 8, 2009 Decision causes substantial detriment to the public good,
- 10 -
nullifies and substantially derogates from the intent and purpose of the Salem Zoning
Ordinance, and is not in harmony with the purpose and intent of said Ordinance.
68. Thus, for the foregoing reasons, Section 5-30) does not apply, and therefore could not
possibly serve as the basis for the Special Permit granted United by the ZBA in its June 8,
2009 Decision.
69. Thus, the Defendants cannot prove this requirement for a special permit as a matter of
law.
70. For the foregoing reasons alone, the ZBA exceeded its authority in granting said Special
Permit and said June 8, 2009 ZBA Decision must be annulled in its entirety.
COUNT V
The prior grandfathered non-conforming 1Yz structure and use at 272
Jefferson Avenue, Salem, Massachusetts has been permanently extinguished
71. Article VIII, Section 8-4(2) of the Salem Zoning Ordinance provides the following in
relevant part:
Where a structure exists which could not be built
under the terms.of this ordinance by reason of
restrictions on area, lot coverage, height, yard
dimensions, or other characteristics of the structure or
its location on the lot, such structure may be
continued so long as it remains otherwise lawful,
subject to the following provisions:
(2) Should such structure be destroyed by any means to
an extent of more than fifty(50)percent of its
replacement cost of more than fifty (50) percent of its
floor area at the time of destruction, it shall not be
reconstructed except in conformity with the
provisions of this ordinance. Emphasis added.
72. The previous 1/z-story grandfathered structure at the right(northwest) rear of the 272
Jefferson Avenue property was completely destroyed in September of 2006, nearly three
years earlier, which destruction included the removal of the foundation walls and the
filling in of the former cellar hole.
73. Also, under Massachusetts Law, the former nonconforming residential use of said former
1 Y:-story grandfathered structure was extinguished when it was continuously
discontinued for two or more years.
- 11 -
74. For the reasons set forth in Count IV hereof, the former 1'/�-story grandfathered
nonconforming structure cannot be reconstructed pursuant to a Special Permit.
75. Thus,pursuant to Article VIII, Section 8-4(2) of the Salem Zoning Ordinance, any new
construction at the 272 Jefferson Avenue property must conform with the dimensional
and use requirements of the Salem Zoning Ordinance, which the proposed 1'/rstory
structure approved by the Board in its June 8, 2009 Decision clearly does not do.
76. For the foregoing reasons alone, the ZBA exceeded its authority in granting said
Variances and Special Permit and said June 8, 2009 ZBA Decision must be annulled in
its entirety.
COUNT VI
The Plaintiffs are substantially aggrieved by the June 8,2009 ZBA Decision
77. The 1 '/z-story structure approved by the Salem ZBA in its June 8, 2009 Decision
represents a substantial detriment to the Plaintiffs, including(without limitation) for the
risk of fire,noise, loss of privacy, shadows, inconvenience of maintenance, and
diminution in their property values that will be inevitably caused by said structure.
78. In particular, Plaintiff Joshua R. Levesque purchased his property at 268 Jefferson
Avenue, Salem, Massachusetts in November of 2007, when there was only an open yard
behind the existing 4-story grandfathered structure at the 272 Jefferson Avenue property,
and there was then no indication of any attempt by anyone to construct a 1'/2-story
structure at the right(northwest)rear of the property, only one foot from his shared
boundary line.
79. Since his purchase of 268 Jefferson Avenue, he has made substantial improvements to his
property, and his total investment in said property has now risen to approximately Three
Hundred Fifty($350,000.00) Thousand Dollars.
80. In doing so, he has relied on the protections of the Salem Zoning Ordinance to safeguard
his foregoing investment and the enjoyment of his property.
81. Plaintiffs Kevin C. McGrath and Rayleen H. McGrath have likewise relied on the Salem
Zoning Ordinance to protect their property values and the enjoyment of their property.
82. The Plaintiffs are substantially aggrieved by the June 8, 2009 ZBA Decision.
83. For the foregoing reasons alone,the ZBA exceeded its authority in granting said
Variances and Special Permit and said June 8, 2009 ZBA Decision must be annulled in
its entirety.
RELIEF SOUGHT
- 12 -
The Plaintiffs respectfully request that this Court:
a. enter a Judgment in their favor annulling in full the June 8, 2009 Decision of the Salem
Zoning Board of Appeals;
b. award the Plaintiffs cost and reasonable attorneys fees in connection with their
prosecution of this appeal; and
c. grant such other relief as is just and expedient.
Respectfully submitted,
Joshua Levesque, et al,
By their attorney,
June 25, 2009
q.
9 North Street
Salem,MA 01 70
978-825-0060
BBO#075281
13 -
• �ONDIT�,� CITY OF SALEM, MASSACHUSETTS
BOARD OF APPEAL
120 WASHINGTON STREET, 3RD FLOOR
> � SALEM, MASSACHUSETTS 01 970
TELEPHONE: 978-745-9595
FAX: 978-740-9846
KIMOCRLCY ❑RISCOLL ,f1 'l _8 P !, 38
MAYOR
IN THE SUPERIOR COURT
� June 8, 2009
FOR THE COUNTY OF ESSEX
�
Decision JUN 2 6 2009
City of Salem Zoning Board of Appfa4gRK
Petition of UNITED FINANCIAL CONSULTANTS, LLC, seeking Variances from
minimum lot area, minimum lot width, and minimum front, side and rear yard
setbacks; allowance of two dwelling structures on the lot; and allowance of five (5)
parking spaces; and a Special Permit to reconstruct a nonconforming structure, in
order to reconstruct a detached unit, previously demolished, as part of a five-unit
residential condominium, on the property located at 272 JEFFERSON AVENUE,
Salem, MA (Bl zoning district).
A public hearing on the above Petition was opened on November 19, 2008 pursuant to
Mass General Law Ch. 40A, §§ 11. The meeting was closed on May 20, 2009 with the
following Zoning Board of Appeals members present: Robin Stein (Chair), Rebecca
Curran, Beth Debski, Richard Dionne, and Jimmy Tsitsinos (alternate).
Petitioner seeks Variances pursuant to the Salem Zoning Ordinance, §6-1, Residential
Uses, and §6-4, Table II: Business and Industrial Density Regulations. Petitioner also
seeks a Special Permit pursuant to Salem Zoning Ordinance, §5-3 0), Special Permit
Uses: Extension of Nonconformity.
Statements of fact:
1. In a decision dated December 7, 2005, the Board of Appeals granted the relief
needed to allow the reconstruction of a detached unit, previously demolished, as
part of a five-unit residential condominium. A Special Permit and Variances were
granted with eighteen (18) conditions to the petitioner and owner at the time,
Dean Borders.
2. Reconstruction of the unit was never completed, and several of the Board of
Appeal's conditions were not met. The Building Commissioner ordered the
remainder of the unit, which had been only partially demolished, to be torn down
completely. The property was foreclosed on by its mortgager, United Financial
Consultants LLC, which then acquired the property from itself at auction.
3. Since the demolition of the detached fifth unit, the owners of the four units in the
front building have had difficulty selling and refinancing their units.
2
Additionally, the owners of the four existing units have incurred expenses from
higher insurance, required construction of a fence around the demolition site,
costs of demolition, and the nonpayment of condominium association fees from
the fifth unit for some of the time the unit remained unoccupied.
4. In a petition dated October 28, 2008, the current owner and petitioner, United
Financial Consultants LLC, requested Variances from minimum lot area,
minimum lot width, and minimum front, side and rear yard setbacks; and a
Special Permit to reconstruct the unit, which was a nonconforming structure. The
Building Commissioner determined that the petitioner also required Variances for
the allowance of two dwelling structures on the lot and allowance of five (5)
parking spaces, in order to complete the reconstruction.
5. Attorney George Atkins presented the petition on behalf of the United Financial
Consultants LLC. A public hearing on the Petition was opened on November 19,
2008, pursuant to Mass General Law Ch. 40A, §§ 11. The hearing was continued
to January 21, 2009, February 18, 2009, March 18, 2009, April 15, 2009, and May
20, 2009, when it was closed, with the following Zoning Board of Appeals
members present: Robin Stein (Chair), Rebecca Curran, Beth Debski, Richard
Dionne, and Jimmy Tsitsinos (alternate).
6. The petitioner submitted revised plans following the hearings on November 19,
2008, March 18, 2009, and April 15, 2009.
7. The original plans submitted showed a reconstructed unit with a different
configuration than the original structure in order to create additional space to
bring the parking into conformance with zoning; the original plan had not shown
sufficient parking area to meet zoning requirements.
8. Opposition to the petition was voiced at the November 19, 2008 meeting.
Attorney Anthony Keck, representing the owners of units 2, 4 and 5 of 272
Jefferson Avenue, objected to a plan that used common space of the
condominium without the consent of the association. He also raised objections to
the design of the unit and the parking configuration. Several other abutters
objected to anything being reconstructed in that space and cited concerns about
snow storage and aesthetics.
9. Support for the petition was voiced by Colin Martin, the owner of 272 Jefferson
Avenue, unit 3, who urged the rapid reconstruction of unit 1 because he had been
unable to sell his unit due to the demolition.
The Board expressed concern that if they approved the plan before them, the
petitioner would not have the legal right to construct it because it used common space
belonging to the entire condominium association. Since some of the unit owners
objected to the plan, permission to use the common space would likely not be granted
and the petitioner would have to come back to the Board with another proposal. The
Board asked the petitioner to rethink his proposal.
3
10. Following comment from the public hearing on November 19, 2008, the applicant
submitted a revised plan dated March 13, 2009 showing plans for the
reconstruction of unit 1 that approximated the original footprint. The applicant
appeared before the Board again on April 15, 2009 and presented the revised
application. Attorney Atkins stated that negotiations for a buyout plan of unit 1
by the other unit owners had been unsuccessful.
11. At the April 15, 2009 meeting, owners of units 2, 4 and 5 again expressed
opposition to the plan, stating they would not oppose reconstruction if it were
done in the same footprint as the original, but they felt the proposed building was
too large. The owner of unit 3 was not present, and Attorney Keck stated that this
unit was in foreclosure.
12. Board members also expressed concern that while the building design was closer
to the original than the prior submittal, the dimensions were not exactly the same.
Members of the Board expressed that they preferred a design in exactly the same
footprint and with the same dimensions as the original. The applicant conceded
that some of the calculations of the building's dimensions were incorrect.
13. Following public comments and Board feedback at the April 15, 2009 meeting,
the applicant submitted revised plans showing construction of a reproduction of
the original building, on what was estimated to be the exact same footprint as the
original, with the exception of a one-foot perimeter setback from the property
line, where none had originally existed. The petitioner again appeared before the
Board at its May 20, 2009 meeting and presented the revised plans.
14. At the May 20, 2009 meeting, opposition was voiced by several abutters who
wished to see no rebuilding at all. However, residents of units 2, 4 and 5 of 272
Jefferson Avenue, represented by Attorney Keck, did not oppose the
reconstruction as proposed, so long as the petitioner altered the plans to shorten
the porch and not block parking areas during construction.
15. At its meeting on May 20, 2009, the Board of Appeals voted five (5) in favor and
none (0) opposed to grant the Variances and Special Permit required to allow the
reconstruction of unit 1 as proposed in the revised plan dated May 12, 2009
prepared by Winter Street Architects, Inc.
The Board of Appeal, after careful consideration of the evidence presented at the public
hearing, and after thorough review of the plans and petition submitted, makes the
following findings:
1. Special conditions and circumstances exist affecting the parcel or building, which
do not generally affect other land or buildings in the same district;
2. Literal enforcement of the provisions of this ordinance would involve substantial
hardship, financial or otherwise, to the appellant;
4
3. Desirable relief may be granted without substantial detriment to the public good
and without nullifying or substantially derogating from the intent or purpose of
the zoning ordinance, since the proposed plan is a reconstruction of a building that
existed previously;
4. The applicant may vary the terms of the Residential One-Family District to
construct the proposed development, which is consistent with the intent and
purpose of the City of Salem Zoning Ordinance;
5. In permitting such change, the Board of Appeals requires certain appropriate
conditions and safeguards as noted below.
On the basis of the above findings of fact and all evidence presented at the public hearing
including, but not limited to, the Plans, Documents and testimony, the Zoning Board of
Appeals concludes:
1. To allow for the reconstruction of the condominium unit as proposed, the
requested Variances from dimensional, density and parking requirements are
granted.
2. To allow for the reconstruction of a structure with a nonconforming use, the
requested Special Permit is granted.
In consideration of the above, the Salem Board of Appeals voted, five (5) in favor
(Curran, Stein, Tsitsinos, Debski and Dionne) and none (0) opposed, to grant petitioner's
requests for a Variance and Special Permit subject to the following terms, conditions,
and safeguards:
1. Petitioner shall comply with all city and state statutes, ordinances, codes and
regulations.
2. All construction shall be done as per the plans and dimensions submitted to and
approved by the Building Commissioner.
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 prior to beginning any construction.
5. Exterior finishes of the new construction shall be in harmony with the existing
structure.
6. A Certificate of Occupancy is to be obtained.
7. A Certificate of Inspection is to be obtained.
S. Petitioner shall obtain street numbering from the City of Salem Assessor's Office
and shall display said numbers so as to be visible from the street.
5
9. Petitioner is to obtain approval from any City Board or Commission having
jurisdiction including, but not limited to the Planning Board.
10. Construction vehicles cannot be parked permanently on the site.
11. No dumpster on the site may block parking at any time.
12. Any common areas of the condominium— including the fence—that sustains any
damage shall be restored to its original condition.
Robin Stein, Chair
Salem Zoning Board of Appeals
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 of filing of this decision in the office of the City Clerk.
Pursuant to the 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 certificate of the City Clerk has
been filed with the Essex South Registry of Deeds.
A7U.EC0a A �
CLE
LEM, MAS8.
y ,poNali CITY OF SALEM, MASSACHUSETTS
BOARD OF APPEAL
�a 120 WASHINGTON STREET. 3RD FLOOR
SALEM, MASSACHUSETTS O 1970
TELEPHONE: 978-745-9595
FAX: 978-740-9846
KIMDCRLCY DRISCOLL 1(!Qq III"( _8 P 1: 30
MAYOR
CITY
June 8, 2009
Decision
City of Salem Zoning Board of Appeals
Petition of UNITED FINANCIAL CONSULTANTS, LLC, seeking Variances from
minimum lot area, minimum lot width, and minimum front, side and rear yard
setbacks; allowance of two dwelling structures on the lot; and allowance of five (5)
parking spaces; and a Special Permit to reconstruct a nonconforming structure, in
order to reconstruct a detached unit, previously demolished, as part of a five-unit
residential condominium, on the property located at 272 JEFFERSON AVENUE,
Salem, MA (Bl zoning district).
A public hearing on the above Petition was opened on November 19, 2008 pursuant to
Mass General Law Ch. 40A, §§ 11. The meeting was closed on May 20, 2009 with the
following Zoning Board of Appeals members present: Robin Stein (Chair), Rebecca
Curran, Beth Debski, Richard Dionne, and Jimmy Tsitsinos (alternate).
Petitioner seeks Variances pursuant to the Salem Zoning Ordinance, §6-1, Residential
Uses, and §64, Table II: Business and Industrial Density Regulations. Petitioner also
seeks a Special Permit pursuant to Salem Zoning Ordinance, §5-3 0), Special Permit
Uses: Extension of Nonconformity.
Statements of fact:
1. In a decision dated December 7, 2005, the Board of Appeals granted the relief
needed to allow the reconstruction of a detached unit, previously demolished, as
part of a five-unit residential condominium. A Special Permit and Variances were
granted with eighteen (18) conditions to the petitioner and owner at the time,
Dean Borders.
2. Reconstruction of the unit was never completed, and several of the Board of
Appeal's conditions were not met. The Building Commissioner ordered the
remainder of the unit, which had been only partially demolished, to be torn down
completely. The property was foreclosed on by its mortgager, United Financial
Consultants LLC, which then acquired the property from itself at auction.
3. Since the demolition of the detached fifth unit, the owners of the four units in the
front building have had difficulty selling and refinancing their units.
2
Additionally, the owners of the four existing units have incurred expenses from
higher insurance, required construction of a fence around the demolition site,
costs of demolition, and the nonpayment of condominium association fees from
the fifth unit for some of the time the unit remained unoccupied.
4. In a petition dated October 28, 2008, the current owner and petitioner, United
Financial Consultants LLC, requested Variances from minimum lot area,
minimum lot width, and minimum front, side and rear yard setbacks; and a
Special Permit to reconstruct the unit, which was a nonconforming structure. The
Building Commissioner determined that the petitioner also required Variances for
the allowance of two dwelling structures on the lot and allowance of five (5)
parking spaces, in order to complete the reconstruction.
5. Attorney George Atkins presented the petition on behalf of the United Financial
Consultants LLC. A public hearing on the Petition was opened on November 19,
2008, pursuant to Mass General Law Ch. 40A, §§ 11. The hearing was continued
to January 21, 2009, February 18, 2009, March 18, 2009, April 15, 2009, and May
20, 2009, when it was closed, with the following Zoning Board of Appeals
members present: Robin Stein (Chair), Rebecca Curran, Beth Debski, Richard
Dionne, and Jimmy Tsitsinos (alternate).
6. The petitioner submitted revised plans following the hearings on November 19,
2008, March 18, 2009, and April 15, 2009.
7. The original plans submitted showed a reconstructed unit with a different
configuration than the original structure in order to create additional space to
bring the parking into conformance with zoning; the original plan had not shown
sufficient parking area to meet zoning requirements.
8. Opposition to the petition was voiced at the November 19, 2008 meeting.
Attorney Anthony Keck, representing the owners of units 2, 4 and 5 of 272
Jefferson Avenue, objected to a plan that used common space of the
condominium without the consent of the association. He also raised objections to
the design of the unit and the parking configuration. Several other abutters
objected to anything being reconstructed in that space and cited concerns about
snow storage and aesthetics.
9. Support for the petition was voiced by Colin Martin, the owner of 272 Jefferson
Avenue, unit 3, who urged the rapid reconstruction of unit 1 because he had been
unable to sell his unit due to the demolition.
The Board expressed concern that if they approved the plan before them, the
petitioner would not have the legal right to construct it because it used common space
belonging to the entire condominium association. Since some of the unit owners
objected to the plan, permission to use the common space would likely not be granted
and the petitioner would have to come back to the Board with another proposal. The
Board asked the petitioner to rethink his proposal.
3
10. Following comment from the public hearing on November 19, 2008, the applicant
submitted a revised plan dated March 13, 2009 showing plans for the
reconstruction of unit 1 that approximated the original footprint. The applicant
appeared before the Board again on April 15, 2009 and presented the revised
application. Attorney Atkins stated that negotiations for a buyout plan of unit 1
by the other unit owners had been unsuccessful.
11. At the April 15, 2009 meeting, owners of units 2, 4 and 5 again expressed
opposition to the plan, stating they would not oppose reconstruction if it were
done in the same footprint as the original, but they felt the proposed building was
too large. The owner of unit 3 was not present, and Attorney Keck stated that this
unit was in foreclosure.
12. Board members also expressed concern that while the building design was closer
to the original than the prior submittal, the dimensions were not exactly the same.
Members of the Board expressed that they preferred a design in exactly the same
footprint and with the same dimensions as the original. The applicant conceded
that some of the calculations of the building's dimensions were incorrect.
13. Following public comments and Board feedback at the April 15, 2009 meeting,
the applicant submitted revised plans showing construction of a reproduction of
the original building, on what was estimated to be the exact same footprint as the
original, with the exception of a one-foot perimeter setback from the property
line, where none had originally existed. The petitioner again appeared before the
Board at its May 20, 2009 meeting and presented the revised plans.
14. At the May 20, 2009 meeting, opposition was voiced by several abutters who
wished to see no rebuilding at all. However, residents of units 2, 4 and 5 of 272
Jefferson Avenue, represented by Attorney Keck, did not oppose the
reconstruction as proposed, so long as the petitioner altered the plans to shorten
the porch and not block parking areas during construction.
15. At its meeting on May 20, 2009, the Board of Appeals voted five (5) in favor and
none (0) opposed to grant the Variances and Special Permit required to allow the
reconstruction of unit 1 as proposed in the revised plan dated May 12, 2009
prepared by Winter Street Architects, Inc.
The Board of Appeal, after careful consideration of the evidence presented at the public
hearing, and after thorough review of the plans and petition submitted, makes the
following findings:
1. Special conditions and circumstances exist affecting the parcel or building, which
do not generally affect other land or buildings in the same district;
2. Literal enforcement of the provisions of this ordinance would involve substantial
hardship, financial or otherwise, to the appellant;
4
3. Desirable relief may be granted without substantial detriment to the public good
and without nullifying or substantially derogating from the intent or purpose of
the zoning ordinance, since the proposed plan is a reconstruction of a building that
existed previously;
4. The applicant may vary the terms of the Residential One-Family District to
construct the proposed development, which is consistent with the intent and
purpose of the City of Salem Zoning Ordinance;
5. In permitting such change, the Board of Appeals requires certain appropriate
conditions and safeguards as noted below.
On the basis of the above findings of fact and all evidence presented at the public hearing
including, but not limited to, the Plans, Documents and testimony, the Zoning Board of
Appeals concludes:
I. To allow for the reconstruction of the condominium unit as proposed, the
requested Variances from dimensional, density and parking requirements are
granted.
2. To allow for the reconstruction of a structure with a nonconforming use, the
requested Special Permit is granted.
In consideration of the above, the Salem Board of Appeals voted, five (5) in favor
(Curran, Stein, Tsitsinos, Debski and Dionne) and none (0) opposed, to grant petitioner's
requests for a Variance and Special Permit subject to the following terms, conditions,
and safeguards:
1. Petitioner shall comply with all city and state statutes, ordinances, codes and
regulations.
2. All construction shall be done as per the plans and dimensions submitted to and
approved by the Building Commissioner.
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 prior to beginning any construction.
5. Exterior finishes of the new construction shall be in harmony with the existing
structure.
6. A Certificate of Occupancy is to be obtained.
7. A Certificate of Inspection is to be obtained.
S. Petitioner shall obtain street numbering from the City of Salem Assessor's Office
and shall display said numbers so as to be visible from the street.
s
9. Petitioner is to obtain approval from any City Board or Commission having
jurisdiction including, but not limited to the Planning Board.
10. Construction vehicles cannot be parked permanently on the site.
11. No dumpster on the site may block parking at any time.
12. Any common areas of the condominium— including the fence—that sustains any
damage shall be restored to its original condition.
Robin Stein, Chair
Salem Zoning Board of Appeals
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 of filing of this decision in the office of the City Clerk.
Pursuant to the 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 certificate of the City Clerk has
been filed with the Essex South Registry of Deeds.
A UE COPY
a A
CLE
LEM, MASS.
John H. Carr, Jr., Esq.
9 North Street
Salem, MA 01970
Phone: 978-825-0060
Fax: 978-825-0068
June 25, 2009 c ®.
RECEi'�'E�
By Hand JUN 1 5 1009
Salem City Clerk °
City Hall
93 Washington Street
Salem, MA 01970 y
� 9
Re: Joshua R. Levesque, et al. v. United Financial Consultants, LLC, et al.
Dear Madam Clerk:
Enclosed please find:
1. Notice To Salem City Clerk Of Appeal To Essex Superior Court From June 8,
2009 Decision Of Salem Board Of Appeal Granting Variances and A Special
Permit To United Financial Consultants, LLC Concerning 272 Jefferson
Avenue, Salem, Massachusetts, including Exhibit A;
2. Attached copy of Complaint Pursuant To M.G.L. Chapter 40A, Section 17
Appealing the June 8, 2009 Decision of the Salem Zoning Board of Appeals
Granting Variances and a Special Permit at 272 Jefferson Avenue, Salem,
Massachusetts bearing the date-stamp and docket number of the Essex
Superior Court.
Would you or someone from your office kindly date-stamp and file same, and also
acknowledge receipt of the foregoing by date-stamping the enclosed copies of this letter
and said Notice and return same with our messenger.
Thank you in advance for your attention to the foregoing.
Very truly yours,
John H. Carr,Jr.
Enc
cc Mr. Thomas St. Pierre, Salem Building Inspector—By Hand
Mr. Joshua R. Levesque—By Hand
Mr. Kevin C. McGrath—By Hand
Mrs. Rayleen H. McGrath—By Hand
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT
CIVIL ACTION NO: 7,009-- W7 $A
JOSHUA R. LEVESQUE, KEVIN C. MCGRATH and
RAYLEEN H. MCGRATH, ) CJM2
PLAINTIFFS �
`' >
UNITED FINANCIAL CONSULTANTS, LLC, and ) 9 wREBECCA CURRAN, BETH DEBSKI, RICHARDDIONNE ROBIN STEIN, JIMMY TSITSINOS ANN IEHARRIS and BONNIS BELAIR, BEING REGULAR and
ALTERNATE MEMBERS OF THE ZONING BOARD )
OF APPEALS OF THE CITY OF SALEM, )
MASSACHUSETTS, )
DEFENDANTS )
NOTICE TO SALEM CITY CLERK OF APPEAL TO ESSEX SUPERIOR COURT
FROM JUNE 8,2009 DECISION OF SALEM BOARD OF APPEAL GRANTING
VARIANCES AND A SPECIAL PERMIT TO UNITED FINANCIAL CONSULTANTS,
LLC CONCERNING 272 JEFFERSON AVENUE SALEM MASSACHUSETTS
1, John H. Carr, Jr., attorney for the Plaintiffs in the above-entitled action, hereby give notice to
the City Clerk of the City of Salem, Massachusetts and to the Salem Zoning Board of Appeals
that said Plaintiffs have filed a civil Complaint with the Essex Superior Court appealing the June
8, 2009 Decision of the Salem Zoning Board of Appeals granting Variances and a Special Permit
to United Financial Consultants, LLC, owner of Unit 1 of"The 272 Jefferson Avenue
Condominium,"272 Jefferson Avenue, Salem, Massachusetts 01970, which property is located
in a B-I Zoning District. Said June 8, 2009 ZBA Decision was filed with the office of the Salem
City Clerk on June 8, 2009.
A copy of said Complaint filed as Essex Superior Court Civil Action No. 2v0?f I( g'/.
on June 25, 2009, bearing the date-stamp of the Essex Superior Court, is attached hereto.
Respectfully submitted,
Joshua R. Levesque, et al,
By their attorney,
June 25, 2009
Jo H. C r., sq.
9 North Street
Salem, MA 01 0
978-825-0
75281
F3'
I�YM
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT 17 8.A
CIVIL ACTION NO: 12
JOSHUA R. LEVESQUE, KEVIN C. MCGRATH, and )
RAYLEEN H. MCGRATH,
) REtiED
PLAINTIFFS ) �. JWI 2 5 2009
V.
UNITED FINANCIAL CONSULTANTS, LLC,and 9 5
REBECCA CURRAN, BETH DEBSKI, RICHARD
DIONNE, ROBIN STEIN, JIMMY TSITSINOS, ANNIE ) 16�d yo .9.#
HARRIS HARRIS and BONNIE BELAIR, BEING REGULAR and ) 066p,
ALTERNATE MEMBERS OF THE ZONING BOARD ) Q�6, 0.
OF APPEALS OF THE CITY OF SALEM,
MASSACHUSETTS, ) y Nj
DEFENDANTS )
COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A,SECTION 17
APPEALING THE JUNE 8,2009 DECISION OF THE SALEM ZONING
BOARD OF APPEALS GRANTING VARIANCES AND A SPECIAL PERMIT
AT 272 JEFFERSON AVENUE, SALEM,MASSACHUSETTS
This is an appeal from a Decision of the Salem, Massachusetts Zoning Board of Appeals
(hereinafter"ZBA" or"Salem ZBA"),dated June 8, 2009, and filed with the Salem City Clerk
on June 8, 2009, granting Variances to United Financial Consultants, LLC from(a)minimum lot
area, (b) minimum lot width, (c)minimum front, side, and rear yard setbacks, (d) minimum lot
coverage by all buildings, (e)use density to allow a fifth residential use, where the legal
maximum is three residential units, and there is already one grandfathered residential use above
the maximum, (1) structural density,to allow a second principle dwelling structure on the same
lot, (g)parking, to allow five (5)parking spaces, instead of the required 8-space minimum, and a
Special Permit to allow for the"reconstruction"of a free-standing structure with a non-
conforming use at 272 Jefferson Avenue, Salem, Massachusetts, which property is located in an
B-1 zoning district, on the grounds that said ZBA Decision was arbitrary, capricious,
unreasonable, violated due process, exceeded the Board's authority, was based on legally and
factually untenable grounds, and was wrong as a matter of law.
A certified copy of said June 8, 2009 Decision is attached hereto as Exhibit A.
PARTIES
Plaintiffs
1. Plaintiff,Joshua R. Levesque, owns and resides at 268 Jefferson Avenue, Salem,
Massachusetts 01970, which property directly abuts 272 Jefferson Avenue, Salem,
Massachusetts and is located within the 300-foot notice requirement of the Salem Zoning
Ordinance.
2. Plaintiffs, Kevin C. McGrath and Rayleen H. McGrath, are husband and wife who own
and reside at 3 Arthur Street, Salem, Massachusetts, which property directly abuts 272
Jefferson Avenue, Salem, Massachusetts and is located within the 300-foot notice
requirement of the Salem Zoning Ordinance.
Defendants
3. Defendant, United Financial Consultants, LLC (hereinafter"United") is a Massachusetts
limited liability company having its usual place of business at 82 Cranberry Highway,
Orleans, Massachusetts 02653-2411, which owns Unit No 1 of The 272 Jefferson Avenue
Condominium, 272 Jefferson Avenue, Salem, Massachusetts 01970, and is the
petitioner/beneficiary of the June 8, 2009 Decision of the Salem ZBA herewith being
appealed.
4. Defendant, Rebecca Curran, who resides at 14 Clifton Avenue, Salem, Massachusetts
01970, is a regular member of the Salem ZBA who voted to grant said Variances and
Special Permit at the May 20, 2009 hearing of the Salem ZBA.
5. Defendant, Beth Debski,also known as Elizabeth Debski, who resides at 43 Calumet
Street, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to
grant said Variances and Special Permit at the May 20, 2009 hearing of the Salem ZBA.
6. Defendant, Richard Dionne, who resides at 23 Gardner Street, Salem, Massachusetts
01970, is a regular member of the Salem ZBA who voted to grant said Variances and
Special Permit at the May 20, 2009 hearing of the Salem ZBA.
7. Defendant, Robin Stein, who resides at 141 Fort Avenue, Salem, Massachusetts 01970, is
a regular member and the chairwoman of the Salem ZBA who voted to grant said
Variances and Special Permit at the May 20, 2009 hearing of the Salem ZBA.
8. Defendant,Jimmy Tsitsinos, also known as James Tsitsinos, who resides at 6C Wharf
Street, Salem, Massachusetts 01970, is an alternate member of the Salem ZBA who voted
to grant said Variances and Special Permit at the May 20, 2009 hearing of the Salem
ZBA.
2
9. Defendant, Annie Hams, who resides at 28 Chestnut Street, Salem, Massachusetts 01970,
is a regular member of the Salem ZBA who did not participate in the May 20, 2009 vote
of the Salem ZBA on United's petition.
10. Defendant, Bonnie Belair, whose mailing address is P.O. Box 685, Salem, Massachusetts
01970, is an alternate member of the Salem ZBA who did not participate in the May 20,
2009 vote of the Salem ZBA on United's petition. (This is the only address available for
Ms. Belair at the office of the Salem ZBA.)
11. All of the foregoing Plaintiffs have standing to bring this action, as all are substantially
aggrieved by the June 8, 2009 Decision of the Salem ZBA granting said Variances and
said Special Permit.
JURISDICTION
12. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the
Massachusetts General Laws.
13. This case is timely, as it has been filed within twenty(20)days from June 8, 2009, which
is when the June 8, 2009 Decision of the Salem ZBA was filed with the Salem City
Clerk.
PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS
14. 272 Jefferson Avenue, Salem, Massachusetts(hereinafter"the property") is a rectangular
parcel of land which is fifty(50) feet wide(on the street) and one hundred(100) feet
deep.
15. There is a 4-story building located almost exactly on the Jefferson Avenue sidewalk,
which building is approximately thirty-one (3 1) feet wide and thirty-six (3 6) feet deep.
16. The property is located in a B-1 Zoning District.
17. The existing 4-story structure consists of four(4)condominium units,each located on its
own floor of the building. In addition, the condominiums on the second, third, and fourth
floors (units 2-5 inclusive)each have exterior rear porches located directly above one
another.
18. According to the B-1 zoning for the district in which the property is located:
a. The "minimum lot area" is 25,000 square feet, as compared with 5,000 square feet for
the existing grandfathered lot;
b. The "minimum lot area per dwelling unit" is 3,500 square feet, as compared with the
grandfathered 1,250 square feet for each of the existin 4 dwelling units in the
existin grandfathered 4-story structure;
- 3 -
c. The "minimum lot width" is 100 feet, as compared with 50 feet for the width of the
existine grandfathered lot;
d. The "maximum height restriction" is 3% stories, as compared with the existing
grandfathered 4-story structure;
e. The"minimum front yard setback" is 15 feet, as compared with the existin
grandfathered front yard setback of approximately 17 inches;
f. The "minimum side yard setbacks" are 20 feet, as compared with the existing
grandfathered left side yard setback of approximately 3 % feet, and the existine right
side yard setback of approximately 14 feet.
19. Thus, the existing lot and structure at the 272 Jefferson Avenue property already exceeds
in several material respects the required maximums or minimums permitted in a B-1
Zoning District, both in terms of structure and use, even before taking into account the
impact of the multiple Variances and Special Permit for the new residential structure
approved by the Salem ZBA in its June 8, 2009 Decision.
20. In 2004 272 Jefferson Avenue, Salem, Massachusetts was owned by Dean Borders
(hereinafter"Borders"), which property then consisted of two grand-fathered structures,
the existing 4-story structure (then as now in the same location) and a 1%-story separate
structure located at the right(ie. northwest)rear portion of the property.
21. By Master Deed and Declaration of Trust, both dated October 6, 2004, and recorded at
pages 1 and 13 respectively of Book 23489 at the Essex South Registry of Deeds,
Borders created"The 272 Jefferson Avenue Condominium Trust" and converted the
property into five condominium units, of which units 2-5 inclusive were located on the
fust, second,third, and fourth floors (respectively) of the 4-story structure, and unit 1 was
located in the 1'/rstory separate structure at the right(northwest) rear of the property.
22. Between October 6, 2004 and February 4,2005 Borders sold each of the four
condominiums in the 4-story structure (units 2-5)to separate buyers, and retained
ownership of unit 1, ie. the 1'h-story separate structure at the right(northwest) rear of the
property.
23. Sometime during the spring or early summer of 2005 Borders or his agents demolished
all but two exterior walls of the 1'/Z-story structure(unit 1), removing all parts of the
building above the foundation except for said two exterior sidewalls.
24. Immediately following said demolition, the Salem Building Inspector issued a Stop Work
Order barring any further work at the site. The basis for the Stop Work Order was
Borders' failure to secure the necessary permits or zoning approvals prior to undertaking
the demolition.
- 4 -
25. Subsequently Borders applied for multiple variances to complete the demolition and to
construct a new 1%2-story dwelling structure, which was ultimately heard by the ZBA at
its regularly-scheduled meeting of December 1, 2005.
26. By a vote of 5-0 at its December 1, 2005 meeting, the Salem ZBA granted said variances,
subject to 18 express conditions, including Condition 14, which recited in relevant part
that the "Petitioner shall initiate the construction within 30 days after this approval
becomes legally effective...[and] shall complete the work within five months from the
beginning..." Emphasis added.
27. The December 1, 2005 ZBA Decision was recorded at the Essex South Registry of Deeds
on January 26, 2006, and thus, the new 1%2-story structure was required to be completed
on or before June 26, 2006 pursuant to Condition 14 (alone)of said Decision.
28. However, Borders did not complete the demolition, nor did he commence construction of
the new 1%2-story structure, much less complete the structure within the time frames
mandated by the December 1, 2005 ZBA Decision. Instead, nothing was done.
29. By letter dated August 24, 2006 the Salem Building Inspector declared the two walls of
the prior 1%2-story structure that remained standing to be "unsafe"pursuant to State
Building Code 780 CMR, Section 121 and ordered Borders to "begin to remove the
remaining structure within 24 hours of this notice."
30. The remaining two walls of the structure were thereupon demolished, the foundation
was were removed, and the cellar hole was filled in.
31. Since September of 2006 the only building at the 272 Jefferson Avenue property has been
the previously existing(and grandfathered)4-story structure.
32. On June 14, 2005 Borders assigned his original mortgage to Investment Capital
Commercial Mortgage, LLC to Defendant, United Financial Consultants, LLC
("United").
33. By letter dated December 8, 2006, the Salem Building Inspector denied Borders'
application for a Building Permit to construct the new 1%2-story building, effectively
ruling that the December 1, 2005 ZBA Decision was null and void because "all 18
conditions needed to be met..." and Borders failed "to comply with condition 16, 18, and
with the time constraints of condition 14."
34. Due to Borders' default, United initiated foreclosure proceedings, and at the resulting
foreclosure sale on August 29, 2007 United purchased unit 1 at public auction for
$30,000.00.
35. By petition dated October 24, 2008, United sought multiple variances and a special
permit from the Salem ZBA to construct a new 1'/2-story structure on a 3'l 0" raised
foundation at the right (northwest) rear of the property.
- 5 -
36. The footprint of the proposed new rectangular 1%2-story structure is 32 feet by 25 feet.
37. According to the certified plot plan filed in support of United's petition, the rear
(westerly) exterior wall of the new 1%2-story structure is to be located one (1) foot from
the rear(westerly) boundary of the property, and the northerly exterior side wall is to be
located one(1) foot from the exterior northerly boundary, which boundary is contiguous
to the property owned by the Plaintiff, Joshua R. Levesque, at 268 Jefferson Avenue,
Salem, Massachusetts, and to the property owned by Plaintiffs, Kevin C. McGrath and
Rayleen H. McGrath, at 3 Arthur Street, Salem, Massachusetts.
38. In addition to the already existing grandfathered, non-conforming, 4-story structure and
grandfathered uses at the property discussed above, and the variances and special permit
applied for, the proposed new I%2-story structure, when added to the footprint of the
existing 4-story structure, violates the 35%"maximum lot coverage by all buildings"
restriction pursuant to the B-1 zoning for the property.
39. Hearings were held on United's October 24, 2008 petition on November 19, 2005, March
18, 2009, April 15, 2009, and May 20, 2009.
40. On May 20, 2009, by a vote of 5 to 0, the Salem ZBA granted United its within
Variances and Special Permit over the objections of the within plaintiffs.
41. The resulting June 8, 2009 Decision of the Salem ZBA incorporating said vote was filed
in the office of the Salem City Clerk on the same day.
42. As to each of the following Counts,the Plaintiffs reaffirm, re-allege, and incorporate all
of the prior allegations contained in paragraphs 1-41 inclusive above.
ARGUMENT
COUNTI
There are no special conditions and circumstances affecting the parcel
which do not generally affect other land or buildings in the same district
43. The 272 Jefferson Avenue property is a flat, rectangular parcel of land which is fifty (50)
feet wide (on the street) and one hundred(100) feet deep.
44. Aside from the existing, grandfathered 4-story structure, there have been no other
buildings at the site since September of 2006.
45. There are no ledges, cliffs, ravines, swamps, marshy areas, watercourses, or other natural
or topographical features that uniquely affect the land or proposed building.
- 6-
46. Indeed, aside from the fact that the existing grandfathered 4-story structure is taller by
one or more stories than virtually all of the surrounding properties for a distance of
several blocks, there is nothing about the parcel which is unique or indistinguishable from
the normal (and natural) conditions of the surrounding land and buildings of the
neighborhood as a whole.
47. Thus, the Defendants cannot prove this variance requirement as a matter of law.
48. For the foregoing reasons alone, the ZBA exceeded its authority in granting said
Variances and Special Permit and said June 8, 2009 ZBA Decision must be annulled in
its entirety.
COUNT II
Literal enforcement of the provisions of the Salem Zoning Ordinance does
not involve legally-recognizable hardship, financial or otherwise,to the Petitioner
49. It is axiomatic under Massachusetts Law that the term"hardship" within the meaning of
Chapter 40A does not include any hardship which is self-created.
50. Yet by accepting the assignment of the Borders' mortgage from Commercial Mortgage,
LLC on June 14, 2005, by purchasing unit 1 at the August 29, 2007 public auction, by
paying $30,000.00 for the then demolished unit 1, and by voluntarily assuming the risk
that any future construction of a new structure would not be permitted, United had in fact
created its own hardship.
51. Thus the Defendants cannot prove this variance requirement as a matter of law.
52. For the foregoing reasons alone, the ZBA exceeded its authority in granting said
Variances and Special Permit and said June 8, 2009 ZBA Decision must be annulled in
its entirety.
COUNT III
The relief granted causes substantial detriment to the public good and nullifies and
substantially derogates from the intent and purpose of the Salem Zoning Ordinance
53. Article I, Section 1-1(a) of the Salem Zoning Ordinance, entitled"Purposes," includes the
following explicit Purposes of said Ordinance: "to lessen congestion in the streets, ...to
secure safety from fire... and other dangers,... to prevent overcrowding of land,to avoid
undue concentration of population, to facilitate adequate provision of transportation,...to
conserve the value of land and buildings, to encourage the most appropriate use of
land..."
- 7 -
54. The Variances and Special Permit granted to United pursuant to the June 8, 2009
Decision of the Salem ZBA are contrary to the above explicit Purposes of the Salem
Zoning Ordinance.
55. In addition, the June 8, 2009 ZBA Decision violates Article IN, Section 4-1(2)of the
Salem Zoning Ordinance, entitled "Minimum regulations; uniform applicability,"which
provides the following in relevant part:
(1) No...land shall here-after be used or occupied and
no building or structure...shall hereafter be erected,
constructed...unless in conformity with all
regulations herein specified for the district in
which it is located.
(2) No building or other structure shall here-after be
erected or altered:
a. To exceed the height;
b. To accommodate or house a greater
number of families;
c. To occupy a greater percentage of lot area;
d. To have narrower or smaller front yards,
side yards, rear yards or other open
spaces;
than herein specified for the district in which it is
located or in any other manner contrary to the
provisions of this ordinance. Emphasis added.
56. In addition, the June 8, 2009 ZBA Decision violates the residential density requirements
found in Table 1 of Article VI, Section 6.4 of the Salem Zoning Ordinance in the
following respects:
a. The"minimum side yard setbacks"are 20 feet, as compared with the proposed side
yard setbacks on the north and westerly sides of the proposed new 1%-story structure
of one (1) foot;
b. The proposed new 1%:-story structure, when added to the footprint of the existin 4-
story, grandfathered structure, violates the 35% "maximum lot coverage by all
buildings"restriction pursuant to said Table 1.
57. The foregoing violations are in addition to the multiple non-conforming uses and
structure which already exist at the 272 Jefferson Avenue Property, including the
following:
- 8 -
a. The "minimum lot area"is 25,000 square feet, as compared with 5,000 square feet
for the existing grandfathered lot;
b. The"minimum lot area per dwelling unit" is 3,500 square feet, as compared with the
grandfathered 1,250 square feet for each of the existing 4 dwelling units in the
existing grandfathered 4-story structure;
c. The"minimum lot width"is 100 feet, as compared with 50 feet for the width of the
existine grandfathered lot;
d. The"maximum height restriction"is 3'/a stories, as compared with the existine
grandfathered 4-story structure;
e. The"minimum front yard setback" is 15 feet, as compared with the existing
grandfathered front yard setback of approximately 17 inches;
f. The "minimum side yard setbacks"are 20 feet, as compared with the existine
grandfathered left side yard setback of approximately 3'% feet, and the existing right
side yard setback of approximately 14 feet.
58. In addition, for the reasons hereinafter set forth in Count IV hereof, the June 8,2009
ZBA Decision violates Section 5-30) of the Salem Zoning Ordinance,which Section
purportedly served as the basis for the illegal Special Permit the ZBA granted United in
said Decision.
59. Said Variances and Special Permit do in fact constitute substantial detriment to the public
good, not the least because of the increased fire hazard to the neighborhood as a result of
the proposed new 1'/z-story wooden structure being placed so near to the adjacent wooden
dwellings in the neighborhood, including those of the Plaintiffs.
60. Similarly, said Variances and Special Permit do in fact nullify and/or substantially
derogate from the intent and purposes of the Salem Zoning Ordinance.
61. Thus, the Defendants cannot prove this variance requirement as a matter of law.
62. For the foregoing reasons alone, the ZBA exceeded its authority in granting said
Variances and Special Permit and said lune 8, 2009 ZBA Decision must be annulled in
its entirety.
COUNT IV
Section 5-3(j) of the Salem Zoning Ordinance does not
apply to the proposed new 1 '%-story structure
- 9 -
63. In its October 28, 2008 Petition to the Salem ZBA, United cited"Section 5-30)of the
[Salem] Zoning Ordinance"as its purported basis "to reconstruct a nonconforming
structure."
64. Article V, Section 5-30)of the Salem Zoning Ordinance entitled"Extension of
nonconformity,"provides the following in its entirety:
0) Notwithstanding anything to the contrary appearing in
the ordinance, the board of appeals may, in accordance
with the procedures and conditions set forth in
section 8-6 and 94 herein, grant special permits for
alterations and reconstruction of nonconforming
structures and for change, enlargement, extension or
expansion of nonconforming lots, land, structures and
uses, provided, however, that such change,extension,
enlargement or expansion s
g p hall not be substantially
more detrimental than the existing nonconforming use
to the neighborhood,nor shall this paragraph apply to
billboards, sign or other advertising devices.
Emphasis added.
65. Section 8-6 of Article VIII of the Salem Zoning Ordinance, entitled"Board of appeals;
granting special permits,"provides the following in relevant part:
Notwithstanding anything to the contrary appearing in
this ordinance, the board of appeals may grant
special permits as authorized by section 5-30)and
section 94 herein when the same may be granted
without substantial detriment to the public good and
without nullifying or substantially derogating from
the intent and purpose of this ordinance.
Emphasis added.
66. Also, Subsection(a)of Article DC, Section 94 of the Salem Zoning Ordinance, entitled
"Special permits,"provides the following in relevant part:
(a) In hearing and deciding applications for special permits,
the board of appeals shall decide such questions as are
involved in determining whether such special permit
should be granted and...shall deny special permits
when not in harmony with the purpose and intent of
this ordinance. Emphasis added.
67. For the reasons set forth in Count III hereof, the Special Permit granted United by the
ZBA in its June 8, 2009 Decision causes substantial detriment to the public good,
- 10 -
nullifies and substantially derogates from the intent and purpose of the Salem Zoning
Ordinance, and is not in harmony with the purpose and intent of said Ordinance.
68. Thus, for the foregoing reasons, Section 5-30) does not apply, and therefore could not
possibly serve as the basis for the Special Permit granted United by the ZBA in its June 8,
2009 Decision.
69. Thus, the Defendants cannot prove this requirement for a special permit as a matter of
law.
70. For the foregoing reasons alone,the ZBA exceeded its authority in granting said Special
Permit and said June 8, 2009 ZBA Decision must be annulled in its entirety.
COUNT V
The prior grandfathered non-conforming 1'/s structure and use at 272
Jefferson Avenue,Salem,Massachusetts has been permanently extinguished
71. Article VIII, Section 84(2) of the Salem Zoning Ordinance provides the following in
relevant part:
Where a structure exists which could not be built
under the terms of this ordinance by reason of
restrictions on area, lot coverage, height, yard
dimensions, or other characteristics of the structure or
its location on the lot, such structure may be
continued so long as it remains otherwise lawful,
subject to the following provisions:
(2) Should such structure be destroyed by any means to
an extent of more than fifty(50)percent of its
replacement cost of more than fifty (50) percent of its
floor area at the time of destruction, it shall not be
reconstructed except in conformity with the
provisions of this ordinance. Emphasis added.
72. The previous 1'/z-story grandfathered structure at the right(northwest)rear of the 272
Jefferson Avenue property was completely destroyed in September of 2006, nearly three
years earlier, which destruction included the removal of the foundation walls and the
filling in of the former cellar hole.
73. Also, under Massachusetts Law, the former nonconforming residential use of said former
I %-story grandfathered structure was extinguished when it was continuously
discontinued for two or more years.
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74. For the reasons set forth in Count IV hereof,the former 1%x-story grandfathered
nonconforming structure cannot be reconstructed pursuant to a Special Permit.
75. Thus, pursuant to Article VIII, Section 8-4(2) of the Salem Zoning Ordinance, any new
construction at the 272 Jefferson Avenue property must conform with the dimensional
and use requirements of the Salem Zoning Ordinance, which the proposed 1'/z-story
structure approved by the Board in its June 8, 2009 Decision clearly does not do.
76. For the foregoing reasons alone,the ZBA exceeded its authority in granting said
Variances and Special Permit and said June 8,2009 ZBA Decision must be annulled in
its entirety.
COUNT VI
The Plaintiffs are substantially aggrieved by the June S,2009 ZBA Decision
1/2-story structure a roved b the Salem ZBA in its June 8, 2009 Decision
77. The 1 pp Y
t the Plaintiffs including without limitation) for the
represents a substantial detriment o g
risk of fire,noise, loss of privacy, shadows, inconvenience of maintenance, and
diminution in their property values that will be inevitably caused by said structure.
78. In particular, Plaintiff Joshua R. Levesque purchased his property at 268 Jefferson
Avenue, Salem, Massachusetts in November of 2007, when there was only an open yard
behind the existing 4-story grandfathered structure at the 272 Jefferson Avenue property,
and there was then no indication of any attempt by anyone to construct a 1%-story
structure at the right(northwest)rear of the property, only one foot from his shared
boundary line.
79. Since his purchase of 268 Jefferson Avenue, he has made substantial improvements to his
property, and his total investment in said property has now risen to approximately Three
Hundred Fifty($350,000.00)Thousand Dollars.
80. In doing so, he has relied on the protections of the Salem Zoning Ordinance to safeguard
his foregoing investment and the enjoyment of his property.
81. Plaintiffs Kevin C. McGrath and Rayleen H. McGrath have likewise relied on the Salem
Zoning Ordinance to protect their property values and the enjoyment of their property.
82. The Plaintiffs are substantially aggrieved by the June 8, 2009 ZBA Decision.
83. For the foregoing reasons alone, the ZBA exceeded its authority in granting said
Variances and Special Permit and said lune 8, 2009 ZBA Decision must be annulled in
its entirety.
RELIEF SOUGHT
- 12 -
ONDI � CITY OF SALEM, MASSACHUSETTS
• - BOARD OF APPEAL
120 WASHINGTON STREET. 3RD FLOOR r"
. SALEM. MASSACHUSETTS 01970
TELEPHONE: 978-745-9595
FAX: 978-740-9846 _
KIMOCRLCY DRISCOLL 30
MAYOR
June 8, 2009 COUNPY Op Egg r
Decision JUN 2 6 2009
City of Salem Zoning Board of Appel qE K /`
Petition of UNITED FINANCIAL CONSULTANTS, LLC, seeking Variances from
minimum lot area, minimum lot width, and minimum front, side and rear yard
setbacks; allowance of two dwelling structures on the lot; and allowance of five (5)
parking spaces; and a Special Permit to reconstruct a nonconforming structure, in
order to reconstruct a detached unit, previously demolished, as part of a five-unit
residential condominium, on the property located at 272 JEFFERSON AVENUE,
Salem, MA (131 zoning district).
A public hearing on the above Petition was opened on November 19, 2008 pursuant to
Mass General Law Ch. 40A, §§ 11. The meeting was closed on May 20, 2009 with the
following Zoning Board of Appeals members present: Robin Stein (Chair), Rebecca
Curran, Beth Debski, Richard Dionne, and Jimmy Tsitsinos (alternate).
Petitioner seeks Variances pursuant to the Salem Zoning Ordinance, §6-1, Residential
Uses, and §64, Table II: Business and Industrial Density Regulations. Petitioner also
seeks a Special Permit pursuant to Salem Zoning Ordinance, §5-3 0), Special Permit
Uses: Extension of Nonconformity.
Statements of fact:
1. In a decision dated December 7, 2005, the Board of Appeals granted the relief
needed to allow the reconstruction of a detached unit, previously demolished, as
part of a five-unit residential condominium. A Special Permit and Variances were
granted with eighteen (18) conditions to the petitioner and owner at the time,
Dean Borders.
2. Reconstruction of the unit was never completed, and several of the Board of
Appeal's conditions were not met. The Building Commissioner ordered the
remainder of the unit, which had been only partially demolished, to be torn down
completely. The property was foreclosed on by its mortgager, United Financial
Consultants LLC, which then acquired the property from itself at auction.
3. Since the demolition of the detached fifth unit, the owners of the four units in the
front building have had difficulty selling and refinancing their units.
2
Additionally, the owners of the four existing units have incurred expenses from
higher insurance, required construction of a fence around the demolition site,
costs of demolition, and the nonpayment of condominium association fees from
the fifth unit for some of the time the unit remained unoccupied.
4. In a petition dated October 28, 2008, the current owner and petitioner, United
Financial Consultants LLC, requested Variances from minimum lot area,
minimum lot width, and minimum front, side and rear yard setbacks; and a
Special Permit to reconstruct the unit, which was a nonconforming structure. The
Building Commissioner determined that the petitioner also required Variances for
the allowance of two dwelling structures on the lot and allowance of five (5)
parking spaces, in order to complete the reconstruction.
5. Attorney George Atkins presented the petition on behalf of the United Financial
Consultants LLC. A public hearing on the Petition was opened on November 19,
2008, pursuant to Mass General Law Ch. 40A, §§ 11. The hearing was continued
to January 21, 2009, February 18, 2009, March 18, 2009, April 15, 2009, and May
20, 2009, when it was closed, with the following Zoning Board of Appeals
members present: Robin Stein (Chair), Rebecca Curran, Beth Debski, Richard
Dionne, and Jimmy Tsitsinos (alternate).
6. The petitioner submitted revised plans following the hearings on November 19,
2008, March 18, 2009, and April 15, 2009.
7. The original plans submitted showed a reconstructed unit with a different
configuration than the original structure in order to create additional space to
bring the parking into conformance with zoning; the original plan had not shown
sufficient parking area to meet zoning requirements.
8. Opposition to the petition was voiced at the November 19, 2008 meeting.
Attorney Anthony Keck, representing the owners of units 2, 4 and 5 of 272
Jefferson Avenue, objected to a plan that used common space of the
condominium without the consent of the association. He also raised objections to
the design of the unit and the parking configuration. Several other abutters
objected to anything being reconstructed in that space and cited concerns about
snow storage and aesthetics.
9. Support for the petition was voiced by Colin Martin, the owner of 272 Jefferson
Avenue, unit 3, who urged the rapid reconstruction of unit 1 because he had been
unable to sell his unit due to the demolition.
The Board expressed concern that if they approved the plan before them, the
petitioner would not have the legal right to construct it because it used common space
belonging to the entire condominium association. Since some of the unit owners
objected to the plan, permission to use the common space would likely not be granted
and the petitioner would have to come back to the Board with another proposal. The
Board asked the petitioner to rethink his proposal.
3
10. Following comment from the public hearing on November 19, 2008, the applicant
submitted a revised plan dated March 13, 2009 showing plans for the
reconstruction of unit 1 that approximated the original footprint. The applicant
appeared before the Board again on April 15, 2009 and presented the revised
application. Attorney Atkins stated that negotiations for a buyout plan of unit I
by the other unit owners had been unsuccessful.
11. At the April 15, 2009 meeting, owners of units 2, 4 and 5 again expressed
opposition to the plan, stating they would not oppose reconstruction if it were
done in the same footprint as the original, but they felt the proposed building was
too large. The owner of unit 3 was not present, and Attorney Keck stated that this
unit was in foreclosure.
12. Board members also expressed concern that while the building design was closer
to the original than the prior submittal, the dimensions were not exactly the same.
Members of the Board expressed that they preferred a design in exactly the same
footprint and with the same dimensions as the original. The applicant conceded
that some of the calculations of the building's dimensions were incorrect.
13. Following public comments and Board feedback at the April 15, 2009 meeting,
the applicant submitted revised plans showing construction of a reproduction of
the original building, on what was estimated to be the exact same footprint as the
original, with the exception of a one-foot perimeter setback from the property
line, where none had originally existed. The petitioner again appeared before the
Board at its May 20, 2009 meeting and presented the revised plans.
14. At the May 20, 2009 meeting, opposition was voiced by several abutters who
wished to see no rebuilding at all. However, residents of units 2, 4 and 5 of 272
Jefferson Avenue, represented by Attorney Keck, did not oppose the
reconstruction as proposed, so long as the petitioner altered the plans to shorten
the porch and not block parking areas during construction.
15. At its meeting on May 20, 2009, the Board of Appeals voted five (5) in favor and
none (0) opposed to grant the Variances and Special Permit required to allow the
reconstruction of unit I as proposed in the revised plan dated May 12, 2009
prepared by Winter Street Architects, Inc.
The Board of Appeal, after careful consideration of the evidence presented at the public
hearing, and after thorough review of the plans and petition submitted, makes the
following findings:
1. Special conditions and circumstances exist affecting the parcel or building, which
do not generally affect other land or buildings in the same district;
2. Literal enforcement of the provisions of this ordinance would involve substantial
hardship, financial or otherwise, to the appellant;
4
3. Desirable relief may be granted without substantial detriment to the public good
and without nullifying or substantially derogating from the intent or purpose of
the zoning ordinance, since the proposed plan is a reconstruction of a building that
existed previously;
4. The applicant may vary the terms of the Residential One-Family District to
construct the proposed development, which is consistent with the intent and
purpose of the City of Salem Zoning Ordinance;
5. In permitting such change, the Board of Appeals requires certain appropriate
conditions and safeguards as noted below.
On the basis of the above findings of fact and all evidence presented at the public hearing
including, but not limited to, the Plans, Documents and testimony, the Zoning Board of
Appeals concludes:
1. To allow for the reconstruction of the condominium unit as proposed, the
requested Variances from dimensional, density and parking requirements are
granted.
2. To allow for the reconstruction of a structure with a nonconforming use, the
requested Special Permit is granted.
In consideration of the above, the Salem Board of Appeals voted, five (5) in favor
(Curran, Stein, Tsitsinos, Debski and Dionne) and none (0) opposed, to grant petitioner's
requests for a Variance and Special Permit subject to the following terms, conditions,
and safeguards:
1. Petitioner shall comply with all city and state statutes, ordinances, codes and
regulations.
2. All construction shall be done as per the plans and dimensions submitted to and
approved by the Building Commissioner.
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 prior to beginning any construction.
5. Exterior finishes of the new construction shall be in harmony with the existing
structure.
6. A Certificate of Occupancy is to be obtained.
7. A Certificate of Inspection is to be obtained.
S. Petitioner shall obtain street numbering from the City of Salem Assessor's Office
and shall display said numbers so as to be visible from the street.
' 5
9. Petitioner is to obtain approval from any City Board or Commission having
jurisdiction including, but not limited to the Planning Board.
10. Construction vehicles cannot be parked permanently on the site.
11. No dumpster on the site may block parking at any time.
12. Any common areas of the condominium— including the fence—that sustains any
damage shall be restored to its original condition.
Robin Stein, Chair
Salem Zoning Board of Appeals
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 of filing of this decision in the office of the City Clerk.
Pursuant to the 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 certificate of the City Clerk has
been filed with the Essex South Registry of Deeds.
A TiCOPY
LEMCLEA t
LEM, MA88.