40 LEGGS HILL ROAD - ZBA Part, C&ff w --, Aa� �DA
zC)C)
oeolrq CITY OF SALEM, MASSACHUSETTS
BOARD OF APPEAL
120 WASHINGTON STREET, 3RD FLOOR
9 ( SALEM, MASSACHUSETTS O 1970
TELEPHONE: 978-745-9595
FAX: 978-740-9846 '1 t�
KIMBERLEY DRISCOLL 2004 JUL 28 P 3. 45
MAYOR
FILE #,
July28, 2009 CITY CL EF'K- SP:1_;"M, MA(,S_
Decision
City of Salem Zoning Board of Appeals
Petition of YMCA OF THE NORTH SHORE, seeking a determination under§7-3
(g) of the Salem Zoning Ordinance to allow for proposed additional parking for 90
cars, in addition to the 246 spaces previously approved by the Board, on the YMCA
recreation facility located at 40 LEGGS HILL ROAD, Salem and Marblehead,MA,
in the Residential One-Family Zoning District(R-1).
Petitioner seeks a determination of reasonableness for proposed parking pursuant to the
Salem Zoning Ordinance, §7-3(g) for the recreational facility on the property at 40 Leggs
Hill Road.
Statements of fact:
1. Attorney George Atkins represented YMCA of the North Shore at the hearing.
2. In a petition dated June 24,2009,the petitioner requested a determination under
Section 7-3(g) of the Zoning Ordinance,which provides that the number of parking
spaces for a charitable institution is subject to determination by the Board of .
Appeals. The applicant proposes additional parking for 90 cars in addition to the
246 spaces previously determined by the Board in a decision dated December 1,
2005.
3. A public hearing on the above mentioned Petition was opened on July 15,2009,
pursuant to Mass General Law Ch. 40A, % 11. The pubic hearing was closed on
July 15, 2009,with the following Zoning Board of Appeals members present: Robin
Stein (Chair),Richard Dionne,Beth Debski,Annie Harris,Bonnie Belair(alternate),
and Jimmy Tsitsinos (ahemate).
4. At the hearing,AttomeyAtkins presented a three-phase landscaping plan the YMCA
is proposing. He stated that he had met with abutters to discuss the landscaping
proposal, and the YMCA was willing to incorporate the first phase of the plan into
the Board's determination as a condition. This phase addressed the most pressing
concerns of neighbors regarding screening views of the facility from their homes.
5. A resident of Marblehead submitted a letter to the Board, not opposing or
supporting the project, but requesting that the house lots on Leggs Hill Road that are
part of the original plan remain residentially zoned, and that landscaping be
incorporated into the site design.
2
6. Ward 7 Councillor Joseph O'Keefe spoke in support of the landscaping plan the
YMCA proposed. Several other residents spoke out to say they would welcome the
proposed landscaping,since they were unhappy with the current lack of plantings on
the site. Marblehead Town Administrator Tony Sasso said he wished to see the
landscape plan incorporated if any new parking were to be added.
7. At its meeting on July 15,2009,the Board of Appeals voted five (5) in favor and
none (0) opposed to grant a determination of reasonableness for an additional 90
parking spaces as shown on the submitted plans.
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. The addition of 90 new parking spaces, as shown on the plan submitted to the Board
titled"Site Plan,Proposed Layout (showing 340 parking spaces): Salem&
Marblehead YMCA," byPatrowicz Land Development Engineering,dated June 22,
2009,is reasonable.
2. 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 addition of the parking as proposed,the requested determination of
reasonableness for parking is granted.
In consideration of the above,the Salem Board of Appeals voted,five (5) in favor(Stein,
Harris,Belair,Debski and Dionne) and none (0) opposed,to grant petitioner's requests for
Variances subject to the following terms, conditions, and safeguards:
1. The landscaping shown on the plan titled "Phase I Landscape Plan at the
Lynch/Van Otterloo YMCA, Salem MA," dated July 15,2009, is to be completed,
with plantings done no later than Spring 2010. Final landscape plans are subject to
approval bythe CityPlanner.
UnS
Robin Stem, 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
3
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.
RECEIVED
JUL 1 S 2009
Ms. Robin Stein atPT. 0;PLAT`.4NG& July 9, 2009
Chair CotAi,.IU11TY 0PrL*LOP.)TNT
Zoning Board of Appeals, City of Salem
Salem City Hall
93 Washington Street
Salem, MA 01970
Dear Ms. Stein,
My name is Ralph Roberto and I currently reside at 8 Riverside Drive, Marblehead across
from the new YMCA on Leggs Hill Road.
I am writing to you to respectfully request the Board's assistance regarding the upcoming
matter of the Y's request for additional parking. I am speaking for myself as well for a
group of neighbors who live on our street and in the adjoining neighborhood.
We understand the new Y is here to stay and that indeed it has been very successful.
We also know that it is much larger than originally planned with many more members
and,therefore, has had a much larger impact on the neighborhoods surrounding the Y.
We are specifically asking for you help relating to two issues.
P We;would'lik6 to.ask for your help to ensure that the Ycis uot-permitted to re-zone the,
residential house lots along'T;eggsHill Road and convertahem to either additional
parking or to playing fields. We are opposed to any rezoning of these residential house
lots. We feel that the plan for the construction of the Y was approved with this land to be
developed as residential lots providing a buffer from the Y and helping to preserve the
character of the neighborhood.
2. Our second issue relates to the almost total lack of landscaping and screening for a
project of this magnitude. I attended a meeting hosted by the Y's Executive Director, Mr.
Gorman, where we were told the Y does not have money for additional landscaping
beyond the few trees they planted just prior to the opening. In fact, we were asked if we
would be willing to try to raise funds for future landscaping because the Y has no money.
It is clear that everyone's interest would be served by developing and executing a
landscaping plan appropriate to the scale and scope of this project. It is also clear to us
that this is the Y's responsibility
Our understanding is that the total Y project cost was approximately$24 million. It is
truly unconscionable that a project of this size and scope has absolutely no budget for
landscaping.
We understand that the Y is'petitioning the Zoning Board:of Appeals for the approval to
add more parking: We ate respectfully requesting that the Board-condition any approval
for additional parking on the Y agreeing to not pursue rezoning of the house lots on
Leggs Hill Road and to their fully funding a landscaping plan appropriate to the size and
scope of their new facility so that the landscaping can be completed as soon as possible.
We realize the Zoning Board of Appeals has to satisfy many interests regarding the Y.
As residents of the area directly surrounding the Y, we have borne an unusually heavy
impact on our community including a huge increase in traffic, and the significant impact
created due to sheer size of the new facility. Therefore we hope you will require the Y to
meet these two requests before granting them any additional parking.
Thank you very much for you consideration of this letter. I would be happy to speak with
you directly regarding this matter if you have any questions.
Smcer ,
K 4s—_
Ralph M. Roberto
8 Riverside Drive
Marblehead, MA 01945
781-631-8676
CC Marblehead Board of Selectmen,
Mr. Sasso, Marblehead Town Administrator
CITY OF SALEM, MASSACHUS@ IIIIIIIIIIIIII�IIIIIIIIIIIIIIIIIII�IIIIII
BOARD OF APPEAL
I 1 120 WASHINGTON STREET, 3RD FLOOR 2006020760675 W25356 Pg.205
SALEM, MASSACHUSETTS 01970 02/0712008 18:58:00 OTHER g 113
STANLEY J. USOVIGZ, JR. TELEPHONE: 978-745-9595 Z005 DEC 19 A Ii: 22
MAYOR FAX: 978-740-9846
DECISION ON THE PETITION OF YMCA OF THE NORTH SHORE,INC
REQUESTING A DETERMINATION FOR THE PROPERTY LOCATED AT LEGGS
HILL ROAD R-1
A hearing on this petition was held on December 1,2005 with the following Board
Members present: Nina Cohen Chairman,Richard Dionne,Bonnie Belair,Edward
Moriarty and Robin Stein. Notice of the hearing was sent to abutters and others and
notices of the hearing were published in the Salem Evening News in accordance with
Massachusetts General Laws Chapter 40A.
Petitioner is requesting a determination of reasonableness for proposed parking per
Section 7-3 (g) for new recreational facility for the property located at Leggs Hill Road
located in an R-I zone.
The Board of Appeal, after careful consideration of the evidence and after reviewing the
plans at the hearing,makes the following findings of fact:
1. Petitioner YMCA of the North Shore,Inc. (`Y'� seeks a determination from
the Board of Appeals of the reasonableness under Section 7-3 (g)of the
Zoning Ordinance of allowing parking spaces for 246 vehicles at a new Y
facility to be constructed at a site on Leggs Hill Road in Salem.
2. As grounds for its petition,the Y states the following;
A. The new facility at Leggs Hill will serve an underserved market
of Salem,Swampscott and Marblehead residents.The new Y will
offer an adult health center,childcare facilities,outdoor and
indoor swimming pools,a gymnasium and a dance center, with
offices, storage areas and locker rooms. It is projected to serve
3800 members and additional 400 non-members users.
B. The petitioner, a regional Y,currently operates recreational
facilities in Beverly,Ipswich, Gloucester, Salem and
Marblehead.The largest single facility is the Sterling Center in
Beverly, which serves 4,750 membership units (one unit=one
individual or more in a family usually traveling in one car), and
while it is 20% larger,the Sterling Center traffic pattern provides
a basis for comparing parking capability and usages.
C. At the Sterling Center a parking area with 300 spaces has proved
adequate to serve users all times of day.Dividing the number of
user units by the number of parking spaces provides a ratio of
CITY OF SALEM. MA
CLERK'S OFFICE
DECISION OF YMCA OF THE NORTH SHORE,INC REQUESTING
DETERMINATION FOR THE PROPERTY LOCATED AT LEGGS HILL ROAD R-1
IlIUS DEC 19 A 11:-22
17.4 at this Beverly facility.The comparable percentage for the
projected Leggs hill facility with 246 parking spaces is 17.1, which
supports the feasibility of the proposed parking lot.
D. In support of its petition the Y submitted a parking evaluation
prepared by Vinod Kalikiri,P.E., P.T.O.E. of Vanasse Hangen
Brustlin,Inc. (VHB) from which these figures are taken. Mr.
Kalikiri presented his report and findings and answered questions
at the public meeting. The report and its findings, dated
November 22, 2005, are hereby incorporated by reference. Also
present were Jack Meany, Executive Director of the YMCA of
the North Shore,Paul Gorman and other members of the North
Shore YMCA Board of Directors, Claudia Chuber,President of
the Board of Directors of the Salem YMCA, and Deb Amaral,
Director of the Salem YMCA.The Y was represented by
Attorney George Atkins M.
E. Outside of daily and weekly usage schedules, the Y from time to
time hosts larger events like swim meets, which require
additional parking. These events are planned in advance and the
Y undertook on these occasions to arrange off-site parking at
another facility,which shuttle buses to the Leggs Hill site.
F. Should the parking plan as submitted prove inadequate because
usage exceeded projections,Mr.Meany noted the site plan
included an open field adjacent to one of the proposed lots. This
filed could be adapted to serve future parking needs if it became
necessary.It is the goal of the Y that the access road to the
facility will never by used for YMCA parking.
G. The Leggs I-Ell facility will support a new partnership between
the Y and the Boston Ballet,which will operate a satellite-
teaching unit within the new facility.This will make high quality
dance instruction much more available to North Shore families,
and will enable dance instructors to visit local schools for arts
presentations. The Salem, Marblehead and Swampscott school
districts will also be offered the use of the facility for their
gymnastic practices and meets, and for swim team needs.
H. Numerous neighbors attended the meeting and aired their
concerns about the adequacy of parking and the need to keep
YCMA cars from parking on the access roads. Ward 5 City
Councillor Joseph O'Keefe also attended the meeting and spoke
in support of the proposed parking plan following the
presentation and Mayor Stanley Usovicz Jr. of Salem submitted a
letter in support of the proposal.
CIKEOF RS OF
KFICER
DECISION OF THE PETITION OF YMCA OF THE NORTH SHORE
REQUESTING A DETERMINATION FOR THE PROPERTY LOCATED AT
LEGGS HILLS ROAD 1005 DEC 19 A 11: 22
Therefore, based upon the evidence presented,the Board voted 5 in favor and 0 in
opposition with the following conditions
1. Petitioner shall provide current membership data upon request of the Board of
Appeal.
2. The Board reserves the right to revisit the adequacy if necessary.
Ali
GRANTED Nina Cohen, Chairman
DECEMBER 1, 2005 Board of Appeal
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD
AND THE CITY CLERK
Appeal from this decision, if any, shall be made pursuant to Section 17 of the
Massachusetts General Laws, Chapter 40A, and shall be filed within 20 days after the
date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts
General Laws Chapter 40A, Section 11. The Variance or Special Permit granted herein
shall not take effect unit a copy of the decision bearing the Certificate of the City Clerk
that 20 days have elapsed an no appeal has been filed,or that, if such appeal has been
filed, that it has been dismissed or denied is recorded in the South Essex Registry of
Deeds and indexed under the name of the owner of record or is recorded and noted on the
owner's Certificate of Title.
Date FEB 3 - 2006 Board of Appeal
I hereby r0fv that 20 days have expired
frorr, was received,
-n filed in this
offir.�.
ATrue C,.v
ATTEST_`'��
t Y
Transportation
Land Development
Environmental
Services
101 Walnut Souet
_van,G1s$S'_H4.11:1<gf;n..1JLUsi.l.Z./2:,1/.1_c- P.O.Box 9151
Watertown,MA 02471-9151
617 924 1770
FAX 617 924 2286
Memorandum To Steve Wood Date: November 22,2005
Southwick Properties,Inc.
1.0 Thompson Road
Marblehead,MA 01945
Project No.: 09044
From. Vinod Kabkiri,P.E., P.T.O.E Re: YMCA at Leggs Hill
Albert Ng,E.I.T. Salem,Massachusetts
Parking Evaluation
Vanasse Hangen and Brustlin,Inc. (VHB)has prepared this memorandum to document the parking
evaluation performed for the proposed YMCA on Leggs Hill Road in Salem, Massachusetts. The
analysis presented in this document is based on empirical data available for other YMCAs in nearby
communities. The evaluation finds that the proposed 246 parking spaces would be adequate to
accommodate the parking needs on the site.
PARKING CHARACTERISTICS AT OTHER YMCA SITES
A review of the parking supply and membership data at YMCA locations in nearby communities is
summarized in Table 1.
TABLET
EXISTING YMCA PARKING SUPPLY"
! Membership Non-Membership Parking Ratio
Location II Units" Units Total Spaces (User Units/Space)
Beverly 4,750 475 300 17.4
Readingi 3,800 380 125 33.4
Woburn 3,800 380 140 29.9
Danvers 3,000 300 133 24.8
Ipswich 2,200 220 125 19.4
Average 3,510 350 165 25.0
* Based on data provided by YMCA
*" Membership units consistof individuals m families. In almost all cases,each membership unit would
travel in one vehicle to the YMCA.
As shown in Table 1.,parking ratios at nearby YMCAs range from 17.4 to 33.4 user units to each
parking space, with an average of 25.0 user units to a parking space. User units could be either
individuals or families. In almost all cases,each unit would travel in one vehicle to the YMCA.
Project No.: 09044 2
November 22,2000
The Institute of Transportation Engineers (ITE)Parking Generation manual' was also reviewed to
understand parking characteristics of a recreational use similar to that of a YMCA. However, the
ITE parking data is based on a very limited number of sites located across the country. In addition,
the ITE data is not based on the number of members but rather based on the size of the facility in
terms of square feet(so andtherefore is not conducive for direct comparison to the empirical data
presented in Table 1.. Since more relevant local data is available,ITE data was not used in the
current analysis.
In addition to reviewing the parking supply data presented in''able 1.,available membership logs
for the Sterling Center YMCA in Beverly for a typical week were also reviewed.The Sterling YMCA
in Beverly is the most active of the North Shore YMCAs (located within the communities of Beverly,
Cape Ann,Ipswich,Marblehead,and Salem) with an estimated membership of 4,750 membership
units that are served by 300 parking spaces.The Beverly YMCA is approximately 20 percent larger
than the proposed YMCA at Leggs Hill in terms of membership.The membership scan logs for the
Beverly YMCA were adjusted to reflect parking by employees,non-members,and visitors who may
arrive early and park on the site waiting to pick-up children enrolled in after school programs,etc.
To present a conservative (worst case) analysis,no adjustments were made to reflect members of the
same family who may drive to the YMCA in a single car,and YMCA members who may be dropped
off by others(parking spaces would not be used by'drop-off vehicles). Even based on these
conservative assumptions,it is estimated that only a maxionurr of 180 parking spaces are currently
used on typical weekdays at the Beverly YMCA which represents a nitcu mmr parking occupancy of
60 percent.The attached sheets show the weekday daily membership log information and the
corresponding estimated parking space usage.
PARKING SUPPLY AT THE PROPOSED SITE
Based on a review of the latest concept site plan,the proposed YMCA to be located off of Leggs Hill
Road will be approximately 88,000 SP in size,and will be supported by approximately 246 parking
spaces. The facility would also include studio space for Boston Ballet classes that will be conducted
at this YMCA. Based on the client's market research information,it is anticipated that the YMCA,
could attract a total membership of approximately 4,200 user units which includes members as well
as non-members who would be required to pay per visit.Of this total,3,800 membership units
represent YMCA members and Boston Ballet members who are also members of the YMCA. The
remaining 400 represent Boston Ballet members who are not members of the YMCA.
Table 2 presents a summary of the proposed parking ratio for the Leggs Hill Road YMCA. As
shown, the proposed 246 parking spaces would represent a parking ratio of 17.1 spaces per user unit
which is better than the existing average of 25.0 user units/space at other area YMCAs.
TABLE 2
PROPOSED YMCA PARKING SUPPLY"
Membership Non-Membership Parking Ratio
Location Units" Units Total Spaces ', (User Units/Space)
Leggs Hill,Salem 3,800 400 246 17.1
' Based on data provided by YMCA
*" Membership units consist of individuals or families. In almost all cases,each membership unit would travel in one
vehicle to the YMCA.
r Institute of Transportation Engineers,Parking Generation Third Fdition Washington,D.C.,2004.
Project No.: 09044 3
November 22,2005
Also,as shown in the previous parking usage analysis for the Beverly YMCA,only a maximum of
approximately 180 parking spaces are needed on typical weekdays to accommodate its daily parking
needs.Thus it can be expected that the 246 parking spaces that will serve the Leggs Hill Road site are
more than adequate to serve the daily parking needs of the new YMCA which will be approximately
20 percent smaller than the Beverly YMCA.
The YMCA is also conmvtted to develop a parking management plan to handle additional parking
needs during special events like swim meets,etc. A preliminary review of the site plans indicates
that as many as 115 to 1.30 additional parking spaces(over and above the 246 spaces shown on the
site plan) can be created on the site to accommodate event parking.The potential for off-site remote
parking will also be explored to handle occasional event traffic.The goal of the event packing
management plan is to ensure that the YMCA parking needs are accommodated adequately in off-
street parking lots on and off the site with minimal impacts to neighborhood residential streets.
CONCLUSION
Based on empirical parking supply data and membership usage togs for other area YMCAs, this
evaluation concludes that a parking ratio of approximately 17.1 user units to one space woutd be
adequate to accommodate the site's parking needs. Data from the Beverly Sterling YMCA, which is
larger than the proposed YMCA in terms of membership,shows that the maximum number of
required spaces of 180 during a typical weekday is less the number of spaces that will be provided at
the proposed Leggs Hili YMCA.The YMCA will also develop a parking management plan to
accommodate additional parking needs during special events.Overall,it is the finding of this
evaluation that the proposed parking supply would adequately serve the site's parking needs white
at the same time ensuring that impervious area on the site is not unnecessarily increased.
Sterling YMCA, Beverly -Weekday Usage Report/ Estimated Parking Usage
Scans Adj.Total T'7 Est.Parking Usage.. Scans Adj.Total;',Est.Parking Usage Scans Adj.Total;;=Est.Parking Usage
Time of Da Tuesday05/31 Tuesday 05/31� -Tuesday05131/05. Wednesday06/01 Wednesda 06/01 Wednesday06/01/05 Thursday06/02 Thursday06/02*I'Thursda O6/02/05
Sam-ham 72 111 s. ,.,.,. f,� :~ 111. 75 115 €11r ,115 53 89 13 J 89
Gam-lam 58 95 '" t�§-,F ;150. 45 79 '�' tt"(�, x,137. 49 841€
7am-Sam 88 127 y "r'' + 174 70 129 "` '` .169. 70 129; ° " ,171.
Bain-gam 76 116 #'r`"� 180. 65 103E 168 65 103., t ,* s -1168
9am-10am 73 113 ,171 75 115 '167 70 109 �fl� r'F.,1'`1fi1
10am-1tam 59 96 r 152 67 105 " ''163 67 105` s1 � 160
ilam-Noon 36 685 116 26 56 #:109 32 63� Yyr 116
Noon-fpm 27 57" N71-111-11P :J 92 53 89# h;. i 117 30 51: `.x-4.x'93
fpm-2pm 31 62 ,r 9T 37 691' r1' "$,114 38 71q h 101
2pm-3pm 39 72 nr t03 42 75 - ,f" .ail) 41 74 i ,,�.. :110
3pm-4pm 54 90 !� .126 61 98 €"� "' r"= ' t36 42 75 p ,iyi ,1.113
4pm-5pm 65 133 ;,.,#, t,. y;,176 57 123 _ '173. 46 1101 4 F f 148
5pm-6pm 56 92. 159. 59 964 _ 158. 51 86; '. :.141
6pm-7pm 49 84 , .?' 130 53 89 '' y 137 43 77. 120
7pm-8pm 40 73 # .1115 48 83 �q �.," ''127 34 66` 65 104
Spm-9pm 20 49 r86 36 68 F. ` + 110 20 49,' yip ,r ;82
9pm-tOpm 5 31 . .56" S 31,a 65 6 32 5 t ,' =k= 1•„'S7
TotalDaily 1 828 874 757
Assumptions:
Maximumemployee count: 25
a
Non-member adjustment factor 11
Pre-school drop off related parking: 20
Afterschool program pick-up related parking: 30
Miscellaneous adjustment factor 10%
VHB-11/21/2005
Number of Spaces Occupied
s1 N A m W O N A O O O
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11%11;/03 TL1E 14:52 FAX 9787400072 JOHN D KEENAN' 49009/012
CITY OF SALEM - MASSACHUSETTS
WILLIAM J.LUNOREGAN Legal Department JOHN C.KEt NAN
City Solicitor 93 Washington Street Assistant City.-olldtor
91 Washington Street
Tel:978.741-3888 Salem, Massachusetts 01970 80 WashingtonStteet ,
Tel:978-741.,453
Fax:979-741-9110 Fax:976-740.0072
March 23, 2000
Peter Strout
Zoning Enforcement Officer
One Salem Green
Salem, Massachusetts 01970
RE: YMCA of the North Shore, Lite.
Zoning Opinion: Use in R-1 District
Dear Inspector Strout:
You have asked for an opinion responding to Attorney John Whipple's correspondence .
February 17, 2000- Attorney Whipple represents the YMCA which is considering
purchasing 3.4 acres off Loring Avenue and Leggs Hill Road to build a new 60,000
square foot, full facility. Attorney Whipple has also provided a memorandum of law witi
extensive exhibits in support of his position on these matters. Specifically, the question=:
to be addressed are as follows:
1. Is the Y entitled to the educational exemption pursuant to Mass. Gen. L. c. 40A-
3?
0A3?
2. is the Y a philanthropic and charitable institution for purposes of determining
parking requirements pursuant to Salem Zoning Ordinance Section 7-3(g)?
3. How many spaces would be recommended to the Board of Appeal if determined
they should decide the number necessary?
Question 1. Is the Y entitled to the educational exemption pursuant to Mass. Getz L
c. 40A, §3?
Answer 1. Yes.
The proposed YMCA project is located in an R-1 district. The Zoning Statute (Mass.
Gen. L. c. 40A, §3) does not allow for local zoning ordinances to restrict use for
nonprofit educational purposes in any district. The state statute, however, does provide
that there may be reasonable regulations regarding height, dimensions, setbacks etc.
Following the language in the state statute, the language adopted in the Salem Zoning
Ordinance (Sec. 7-13) provides that educational "structure[s] must comply with all the
requirements of the zoning ordinance regarding height, etc." From Attorney
11/14/03 TUE 14:53 FAX 9787400072 JOHN D KEENAN 49010/012
Page Two of Four
March 23, 2000
Inspector Strout
RE: YMCA
Whipple's correspondence, it does not appear the YMCA will be seeking any specific
dimensional or other relief.'
With the federal government's (IRS) imprimatur as tax exempt status (501(c)(3)) and the
Y organized as a charitable organization pursuant to Mass. Gen. L. c. 180, it is
unquestionable that the Y is a not for profit organization. Indeed, the YMCA's literature
claims itself as the largest nonprofit community service organization in America.
Thus, the issue is whether the YMCA should be deemed an educational use pursuant to
the Zoning Statute?' There does not appear to be a Massachusetts case directly on point
as to this question. The dearth of such case law may, however, be indicative of the fact
that it falls squarely within said exemption. The Massachusetts courts have interpreted
this provision broadly. Education has long been recognized in the Commonwealth as a
broad and comprehensive term, especially in the context of Chapter 40A. See e_g,
Campbell v. City Council of Lynn, 32 Mass, App. Ct. 152, 154-55 (1992)(group
residence for fifteen elderly, mentally retarded individuals deemed educational),
Commissioner of Code Inspection v. Worcester Dynamy, Inc , 1 I Mass. App. Ct. 97, 99
(1980); Assessors of Lancaster v. Perkins School, 323 Mass. 418 (1948). Education has
been defined as:
. . . the process of developing and training the powers and capabilities
of human beings_ To educate, according to one of Webster's definitions,
is "to prepare and fit for any calling or business, or for activity and use-
fulness in life." Education may be particularly directed to either the mental,
moral, or physical powers and faculties, but in its broadest and best sense
it relates to them all.
Whitinsville Retirement Soc'v. Inc v. Northbridge, 394 Mass. 757, 759-60 (1985)(cifing
Mount Berman Boys School v. Gill, 145 Mass. 139, 146 (1887)).
Furthermore, it has not been required under Chapter 40A that the educational purpose be
the dominant or primary activity to qualify for the exemption. "There is nothing in G.L.
c. 40A, § 3, . . . that requires that education be the dominant purpose or primary activity
of a nonprofit corporation in order that it may qualify as a nonprofit educational
corporation under §3, We have no authority to rewrite the statute to insert such a
it is clear that a private educational institution cannot be forced to seek a variance to obtain permission to
complete its project. Trustees of Tufts Callepe v. Medford 415 Mass, 753, 760(1993). If the YMCA were
seeking dimensional or other relief, the burden would be theirs to show thit the provisions of the Salem
Zoning Ordinance as applied to its project are unreasonable, Trustgcs of Tuffs College at 759.
'The Zoning Statute also exempts childcare facilities from use restrictions in any district.
Programmatically,a cltildcarc facility has not been specifically proposed, but it is certainly a large
component of the Various branches of the North Shorc YMCA, to wit Salem and Marblehcad/Swampscott
Y's. The Y's literature also indicates that it is the largest provider of childcare in the United States.
11/18/03 TUE 11:53 FAX 9787400072 JOHN D KEENAN 4011/012
i
Page Three of Four
March 23, 2000
Inspector Strout
RE: YMCA
requirement." Gardner-Athol Area Mental Health Assn Inc. v. ZoningBoard of
Appeals of Gardner, 401 Mass. 12, 15 (1987).
The Mission Statement of the North Shore YMCA is as follows: "The YMCA of the
North Shore is committed to the values of caring, honesty, respect and responsibility.
Our YMCA provides all children, adults, and families, regardless of income, with
opportunities to develop a healthy spirit, mind and body." The Y certainly provides
health and fitness programs, but it also has programs for teen development, substance
abuse prevention,job training, infant mortality prevention, socialization and
sportsmanship skills. Given its mission and the programmatic breadth offered at the Y, it
is my opinion that the Y does meet the educational threshold of 40A as defined by
Massachusetts's case law.
Question 2. Is the Y a philanthropic and charitable institution for purposes of
determining parking requirements pursuant to Salem Zoning Ordinance
Section 7-3(p)?
Answer Z Yes
Given the 501(c)(3) status and organization as a charitable corporation, it is appropriate
to review parking in light of the Salem Zoning Ordinance requirement for"charitable
institutions." Art. VII., Sec. 7-3(g). Although local zoning cannot prohibit an
educational use in any district, it can require compliance with reasonable dimensional and
parking requirements. As discussed supra, the Salem Zoning Ordinances provides that
this project must comply with the dimensional and parking requirements. Art. VTI., Sec.
7-13.
Pursuant to off street parking requirements in the Zoning Ordinance, the Y as a charitable
institution would need to provide "one (1) space for each two (2) employees, plus such
additional space as shall be determined necessary by the board of appeals." In light of
the courts stating that local zoning provisions must be reasonable as applied to
educational projects, it would also be logical to apply the flexible standard as determined
by the Board of Appeal.
Question 3. flow many spaces would be recommended to the Board of Appeal if
determined they should decide the number necessary?
Answer 3. No response from the legal department
As this question does not call for a legal determination. I leave this to your discretion. 1
can only state that the determination by you and/or the Board of Appeal must be
reasonable as per the Tufts case. I presume that such a determination of reasonableness
11/38/03 TUE 14:54 FAS 9787400072 JOHN' D KEENAN 49012/012
Page Four of Four
March 23, 2000
Inspector Strout
RE. YMCA
would depend on usage statistics for such a facility (ie, square footage, programs offered
and parking information from other similar facilities).
Hopefully, this has adequately answered your questions. If additional specific
information or questions are posed, do not hesitate to contact me. Thank you for your
attention to this matter.
Veryt ly yo s,
J. LUND
C Y SOLICITOR
cc. Stanley J. Usovicz, Jr., Mayor
Arthur C. Sargent, III., Councilor at Large
Joseph A. O'Keefe, Sr., Ward Seven Councilor
Patrick Reffett, City Planner
John Keenan, Asst. City Solicitor
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