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3 LILLIAN ROAD - ZBAF3 L�Il � ar� Roc�. d i iversl© www.myuniversalop.com phone:1-866756.4676 UNV12113 MADE IN USA -1 e i r , .f Zoning Board Proiect Status Sheet Address & Applicant: Date Submitted to BOA: 2"" Clerk Stamp: VariancesOnly - Constructive A r � pp oval Date: (100 days from 5' Abutters List Requested: 1311 Abutters Notice Sent: G/ Notice to Abutting Cities & Towns, Councillors: E3/ Legal Notice posted at City Hall: (14 daps before meeting) _ df Legal Notice Emailed & Confirmed: IY/ Legal Notice Posted on Web; I/ Agenda to Applicant: Applicant's email address or fax number to send agenda: Opened at Meeting: P�\ --- ol (. Continued Meetings: S C 2 Extension Form(s) Signed & Clerk Stamped? Closed at Meeting: Decision: 9,�� \ dw� � �nspe�to � DeciS\an UV4IeZ\ d Decision Filed: Ll Zg Appeal Period Over: after decision filed) -(2t" �( Decision Sent to Applicant: ra' Notice of Decision Sent to abutters, c and towns, councillors: I,g/� ZBA ACTION FORM `BOARD MEMBERS. ` ._.3+MOTION SECOND .VOTE' Date: VZ 1'1(, Rebecca Curran (Chair) ® �� Mike Duffy Petitioner: Tom Watkins Peter Copelas Address: Jimmy Tsitsinos Jim Hacker(Alt.) Paul Viccica (Alt) Total: 9� Conditions: ❑Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. ❑All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner. ❑All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. ❑Petitioner shall obtain a building permit prior to beginning any construction. ❑Exterior finishes of the new construction shall be in harmony with the existing structure. ❑A Certificate of Occupancy is to be obtained. ❑A Certificate of Inspection is to be obtained. ❑Petitioner shall obtain street numbering from the City of Salem Assessor's Office and shall display said number so as to be visible from the street. ❑Petitioner is to obtain approval from any City Board or Commission having jurisdiction including,but not limited to, the Planning Board. ❑Unless this Decision expressly provides otherwise, any zoning relief granted does not empower or authorize the Petitioner to demolish or reconstruct the structure(s)located on the subject property to an extent of more than fifty percent(50%) of its floor area or more than fifty percent(50%)of its replacement cost at the time of destruction. If the structure is demolished by any means to an extent of more than fifty percent(50%)of its replacement cost or more than fifty percent(50%)of its floor area at the time of destruction, it shall not be reconstructed except in conformity with the provisions of the Ordinance. COMMONWEALTH OF MASSACHUSETTS ESSEX. ss. SUPERIOR COURT DEPARTMENT DOCKET NO.: JAMES W. LEWIS. Plaintiffs, r o REBECCA CURRAN, PETER A. C'OPE,LAS. JAMES TSITSINOS, MICHAEL DUFFY. THOMAS WATKINS, n r4_ Q JAMES HACKER, and PAUL. VICCICA as they are Members of the City of Salem �? Zoning Board of Appeals; and THOMAS o ST. PIERRE as he is the Building C) Commissioner for the City of Salem; SEAN KE,L.LEHER; and DANIELLE KELLEHER, Defendants. COMPLAINT I. This is an appeal pursuant to Mass. Gen. Law c. 40A §§7, 8, 15 and 17, of a decision of the City of Salem Zoning Board of Appeals (hereinafter referred to as the "Board of Appeals") acting as the authority hearing the Appeal of the Decision of the City of Salem Building Commissioner, Thomas St. Pierre, to contest interpretation of fence and fence height as it applies to the fences and retaining walls located on the boundary of-I Lillian Road and 19 Chandler Road, Salem, Massachusetts. Wherein. the Board of Appeals exceeded its authority under the City of Salem Zoning Ordinance, in upholding the Building Commissioner's decision as it relates to fences, fence height, permitting. and the applicable statute of limitations. The Board of Appeals exceeded its authority by upholding the Building Commissioner's decision without adequate factual or legal grounds to support its decision. The plaintiff seeks to have the Court annul that decision as described below. A certified copy of the decision of the Board of Appeals of the City of Salem. as tiled in the office of the City Clerk on September 28, 2016. is attached hereto and incorporated herein by reference and marked as Exhibit "A." 2. 'The plaintiff James W. Lewis is an individual who owns property and resides at 3 Lillian Road, Salem. Massachusetts, which is located in an R-1 Zoning District under the Salem Zoning Ordinance. The defendants Sean Kelleher and Danielle Kelleher are the owners of property located at 19 Chandler Street, which is located in an R-1 Zoning District under the Salem Zoning Ordinance. 4. The defendants. Rebecca Curran, Peter A. Copelas. James 'I'sitsinos. Michael Duft\,, Thomas Watkins, James Hacker, and Paul Viccica are Members of the Zoning Board of Appeals of Salem. Their addresses are as follows: a. Rebecca Curran, 14 Clifton Avenue, Salem, Massachusetts. b. Peter A. Copelas, 40 Warren Street, Salem. Massachusetts. c. James Tsitsinos, 61 C Warf Street, Unit 5B. Salem, Massachusetts. d. Michael Duffy, 1 Warren Street, Salem, Massachusetts. e. Thomas Watkins, 24 Surrey Road, Salem. Massachusetts. f James Hacker, 4 Mayflower Lane, Salem. Massachusetts. g. Paul Viccica, 35 Broad Street, Salem, Massachusetts. 5. Defendant, Thomas St. Pierre, is the Building Commissioner of the City of Salem (hereinafter referred to as `Building Commissioner') with an address of Building Department, City of Salem. 120 Washington Street. 3"i Floor, Salem, Massachusetts. 6. The property owned by Plaintiff is adjacent to and abuts the property owned by Sean and Danielle Kelleher, and as such the Plaintiff is a party in interest and a party aggrieved within the meaning of Mass. Gen. Law c. 40A. 7. On or about September 3, 2015, pursuant to the provisions of Mass. Gen. law c. 40A §7. Plaintiff made a request to the Building Commissioners office to enforce the City of Salem Zoning Ordinance. 8. As grounds for his request, the Plaintiff stated that the height of a fence(s) and wall(s) on the boundary line of 3 Lillian Road and 19 Chandler Road exceeded six (6) feet as permitted by the City of Salem Zoning Ordinance. that the fence was located on his property, the appropriate permits were not obtained, and due to the lack of permits the matter was timely pursuant to Mass. Gen. Law c. 40A §7. 9. Plaintiff asserts that the fence at issue is located on his property at 3 Lillian Road. but as the issue of property boundaries is a civil matter, the issue was not before the Board of Appeals. Plaintiff reserves all rights to commence a separate civil action with respect to that issue. 10. On or about September 22, 2015, a site visit was conducted by the Building Commissioner_ and/or an agent or representative of his office, at 3 Lillian Road. Salem. Massachusetts. 11. On or about September 25, 2015, further verbal communications were held between the Plaintiff and Building Commissioner, and/or an agent or representative of his office. 12. On or about December 7, 2015, Assistant Building Inspector Wagg mailed a letter to Sean and Danielle Kelleher. This letter was not sent to the Plaintiff. 13. On or about March 21 2016, Assistant Building Inspector Wagg sent a subsequent letter to Sean and Danielle Keller. This letter was not sent to the Plaintiff. 14. On or about April 29, 2016, the Building Commissioner denied the Plaintiffs request. 15. The Building Commissioner's denial exceeded the fourteen (14) day deadline pursuant to Mass. Gen. Law c. 40A §7. 16. On May 24, 2016, Plaintiff appealed the Building Commissioners decision. pursuant to Mass. Gen. Law c. 40A §§ 8 and 15 and corresponding provisions of the City of Salem Zoning Ordinance. 17. On .lune 15, 2016, the Board of Appeal held a public hearing on the Plaintiffs appeal. 18. After hearing from the Plaintiff and the Defendants. Sean and Danielle Kelleher. the Zoning Board of Appeals voted to continue the public hearing to September 25. 2016at which time the Board of Appeals held a further public hearing. 19. Following the close of the public hearing on September 25, 2016, the Board of Appeals voted to uphold the Building Commissioner's decision. 20. On September 28, 2016, the Board of Appeals filed with the Clerk of the City of Salem. its decision to uphold the Building Commissioner's decision. A certified copy is attached hereto as Exhibit "A." 21. Plaintiff is aggrieved by the Board of Appeals decision because it is based upon legall} untenable grounds, it is unreasonable, capricious or arbitrary, and it has an insubstantial basis of fact. WHEREFORE, Plaintiff prays that the Court, pursuant to the provisions of Mass. Gen. I,aw C. 40A §17: a. Enter an order annulling the decision of the Board of Appeals and reversing the decision of the Building Commissioner; and b. Grant such other and further relief as the Court shall deem to be just and proper. Respectfully submitted. James W. Lewis, By his attorney, Jp t n M. Zol (BBO # 675658) .�1 EPHEN M. O TASK ATTORNF,Y AT LAW 133 Washing n Street, 2 ('I Floor Salem, MA 01970 Tel: (978) 744-53).3).3) Date: October 14, 2016 szolotas@zolotaslaw.com CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL 120 WASHINGTON STREET♦ SALEM,MASSACHUSETTS QW(SEP 28 P I: Ob KIMBFRLEYDRISCOI.L TELE:978-745-9595 ♦ FAX:978-740-9846 MAYOR FILE #F CITY CGEPt;x, SALEM,MASS. September 26, 2016 Decision City of Salem Board of Appeals Petition of JAMES W. LEWIS seeking an Appeal of the Decision of the Building Inspector to contest the interpretation of fence and fence height at the property of 3 LILLIAN ROAD (Map 30 Lot 30)(R1 Zoning District). A public hearing on the above Petition was opened on June 15, 2016 pursuant to M.G.L Ch. 40A, � 11. Public testimony was heard on that date and the public hearing was continue to September 21, 2016 and closed on that date with the following Salem Board of Appeals members present: Rebecca Curran (Chair), Peter A. Copelas (Vice-Chair),Jimmy Tsitsinos,Mike Duffy, and Tom Watkins. The Petitioner is seeking an Appeal of the Decision of the Building Inspector to contest the interpretation of fence and fence height. Statements of fact: 1. In the petition date-stamped May 24, 2016, the Petitioner requested to appeal the Decision of the Building Inspector to contest the interpretation of fence and fence height. 2. Attorney Stephen Zolotas of 133 Washington Street, Salem, MA presented the petition. 3. The petitioner, Mr. James W. Lewis, filed an appeal of the Decision of the Building Inspector. Mr. Lewis requested that the building inspector enforce the Salem Zoning Ordinance nine (9) years after a building permit was issued for the construction of a swimming pool. 4. The petitioner states that a retaining wall constructed in relation to the swimming pool needed a building permit and therefore, the statute of limitation on enforcement of other zoning matters could be done. 5. In particular, Mr. Lewis requested that the building inspector enforce the fence height requirements of the Salem Zoning ordinance due to concerns about the fence height and location installed by an abutting neighbor. 6. The location of the installed fence is a civil matter. 7. In a letter dated March 21, 2016, the City's assistant building inspector provided a zoning opinion stating that the permit for an in-ground pool was applied for and issued 5/21/2007. There is no record on-file of a request for a zoning variance or for a building permit to increase the height of the border/retaining wall above 6' feet. There is no record on-file that the City Engineer was notified of the intent to alter the grade of the land. 8. While there was no grade alteration permit applied for from the Engineering Department to alter the grade of the land,it is not within the purview of the Zoning Board to discuss a permit of the Engineering Department since it is not part of the zoning ordinance. City of Salem Board of Appeals September 26,2016 Project: 3 Lillian Road Page 2 of 2 9. In a letter dated April 29, 2016 the Building Inspector stated that he met with the neighbors and discussed the construction work done at 19 Chandler Street. Work included the installation of a pool, patio and raising of a retaining wall that was done in 2007. The Massachusetts General Law Ch.40A Section 7 states that no enforcement actions may be taken if the work was permitted and a period of six (6) years has passed. 10. It is the opinion of the Building Inspector officer that no enforcement actions may be taken as the construction work received a building permit and a period of six (6) years has passed. 11. Regarding fence height, the Salem Zoning Ordinance states the following "retaining walls, boundary walls and or fences may be built abutting the property line. The height of the retaining wall boundary walls and or fences shall be measured on the inside face of the structure on the owners side." It is the opinion of the Building Inspector that as long as the abutter's fence does not exceed six (6) feet measured from their side, there is no zoning violation. 12. The height of the raised retaining wall is approximately three and a half feet (3.5') and would not have required a building permit at the time of construction. 13. The requested relief, if granted, would allow the zoning enforcement officer to take any associated enforcement actions. 14. At the public hearing, two (2) members of the public spoke in opposition and no members of the public spoke in favor, of the petition. The Salem Board of Appeals, after careful consideration of the evidence presented at the public hearing, and after thorough review of the petition, including the application narrative and plans, makes the following findings: Findings: L A building permit was pulled on May 21, 2007 for the construction of the swimming pool. A building permit was not required for the construction of the 3.5' foot retaining wall. Therefore, the statute of limitation of six (6) years for any zoning enforcement action has passed. On the basis of the above statements of facts and findings, the Salem Board of Appeals voted five (5) in favor (Rebecca Curran (Chair), Peter A. Copelas (Vice-Chair),Jimmy Tsitsinos, Mike Duffy, and Tom Watkins) and none (0) opposed, to uphold the decision of the building inspector. The decision of the Building Inspector is upheld. TRUE . OR TE T Rebecca Curran, Chair CITY CLE/p�RsCKS� Board of Appeals AW WA? bii'CiSiON HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK ,4ppeal 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 fhng of this decision in the office of the City Clerk. Pursuant to the Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Perrartgranted herein shall not take effect until a copy of the de<s oa bearing the certificate of the City Clerk bar been filed a,,th the Essex South Registry of Deeds. i I /// ?/� — .-,n�., �: ✓ '$ � d � � ii��n � .,qua �`�w . , x . 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IL' _ ,.. a� r; 7 f a,. �� � r� i k�A' Et rG �4 � zk�� �� ' � 1 O .7 # G ��t.. r \ �f �:�. ilk N -4 - VA'- W� Wio, Ar jr, law AN -j A �M44- ---------- ILL, .1�MC Aof Fw pef 79 7r L77.-. 6 1 1'77`r� Al IX AM r if Tit 120, 121 , .123. �41 i 4a 14 Tu., JIv _V. 0� zt lip, lip I 2P, 121 , 12 CL JAMES LEWIS - 3 LILLIAN ROAD RECEIVE Outline of Issues for the Board SEP 20 2016 DEPT. OF PLANNING & Timing Ot Appeal: COMMUNITY DEVELOPMENT Mr. Lewis' appeal is timely in this case. Where there is no permit, Mass. Gen. Law c. 40A §7 permits action to commence within 10 years. The City of Salem Permit Report identifies a permit for the pool in 2007, which is when all of this construction occurred. There is no permit for the more than 2 feet of fill. March 21, 2016 letter from Assistant Building Inspector Wagg clearly states: "When the grade of land is disturbed by more than two feet,.the owner is required to notify the city engineer and apply for a drainage permit. Work cannot proceed until a drainage permit has been issued." Salem Code of Ordinances Article VI requires a drainage permit under Section 38-286 if the grade is disturbed by more than 2 feet. It uses the term "shall"meaning that this is not optional There is no permit for the retaining wall. March 21, 2016 letter from Assistant Building Inspector Wagg clearly states: "Because the elevated border wall is actually a retaining wall, and because it is more than four feet in height—it would have also required a building permit." Massachusetts Building Code, Chapter 18 addresses retaining walls. Massachusetts Building Code, Chapter 1 Section 105.2(3) requires a permit for any retaining wall that is four feet or higher. This wall falls under a Chapter 18 retaining wall and is four feet(or more)tall,which would require a permit. Since the primary issue is the height of the wall/fence, and that structure did not have two required building permits, we are within the 10 years to bring this appeal. Height of Fence/Wall: Salem Zoning does not permit a fence to exceed 6 feet. Salem Zoning Section 4.1.1 joins the following terms when discussing fence height: - Retaining walls, - Boundary Walls, and/or - Fences 4.1.1 clearly states that the "structure" must be measured on the owner's side. While the term "fence" is not defined, a property owner is not permitted to stack a fence on top of a wall. The measurement has to be of the "structure." Since 4.1.1 uses the term "and/or" it is accounting for both walls and fences when determining height. In this case, the "structure" is the 4 foot wall and the 5 foot 9 inch wall on top of that wall. The two are connected and secured together, creating a single structure that is 9 feet 9 inches tall. Before May of 2007, there was a 5 foot 9 inch fence, measured from the owner's side. In May 2007 the lot was filled by four feet, requiring a four foot retaining wall. ,A second 5 foot 9 inch fence was erected on top of that 4 foot retaining wall. This created a structure that was 9 feet 9 inches from grade. Well above the 6 feet allowed. Therefore, the April 29, 2016 letter from Inspector Tom St. Pierre is in error. While the fence itself is less than the 6 feet required, the decision by Inspector St. Pierre fails to acknowledge the increase in grade, which required a 4 foot retaining wall, on top of which there is a 5 foot 9 inch fence. The March 21, 2016 letter from Assistant Inspector Wagg is correct, in that the Kelleher's did not apply for the necessary permits and built a fence/wall in excess of six feet. Note: I have attached copies of documents that I intend to present to the board. The documents are attached in an order that will coincide with the outline above. I have also included a set of photographs for the board's review, which I will reference at the meeting. I will bring a second set of photographs to the meeting on Wednesday. Print PART I ADMINISTRATION OF THE GOVERNMENT TITLE VII CITIES. TOWNS, AND DISTRICTS CHAPTER 40A ZONING Section 7 Enforcement of zoning regulations; violations penalties; jurisdiction of superior court Section 7. The inspector of buildings, building commissioner or local inspector, or if there are none, in a town, the board of selectmen, or person or board designated by local ordinance or by-law, shall be charged with the enforcement of the zoning ordinance or by-law and shall withhold a permit for the construction, alteration or moving of any building or structure if the building or structure as constructed, altered or moved would be in violation of any zoning ordinance or by-law; and no permit or license shall be granted for a new use of a building, structure or land which use would be in violation of any zoning ordinance or by-law. If the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer or board declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of such request. No local zoning law shall provide penalty of more than three hundred dollars per violation; provided, however, that nothing herein shall be construed to prohibit such laws from providing that each day such violation continues shall constitute a separate offense. No action, suit or proceeding shall be maintained in any court, nor any administrative or other action taken to recover a fine or damages or to compel the removal, alteration, or relocation of any structure or part of a structure or alteration of a structure by reason of any violation of any zoning by-law or ordinance except in accordance with the provisions of this section, section eight and section seventeen; provided, further, that if real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action, criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said permit or the removal, alteration or relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of this chapter, or of any ordinance or by-law adopted thereunder, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within six years next after the commencement of the alleged violation of law; and provided, further that no action, criminal or civil, the effect or purpose of which is to compel the removal, alteration, or relocation of any structure by reason of any alleged violation of the provisions of this chapter, or any ordinance or by-law adopted thereunder, or the conditions of any variance or special permit.. shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within ten years next after the commencement of the alleged violation. Such notice shall include names of one or more of the owners of record, the name of the person initiating the action, and adequate identification of the structure and the alleged violation. The. superior court and the land court shall have the jurisdiction to enforce the provisions of this chater, and any ordinances or by-laws adopted thereunder, and may restrain by injunction violations thereof. Commonwealth of Massachusetts City of Salem 120 Washington Sl,3rd Floor Salem,MA 01970(978)745-9595 x5641 PERMIT REPORT BY ADDRESS Address: 19 CHANDLER ROAD PIN Permit For Parcel ID Occupancy Type Building Type Work;Descri0416r5=' ` Gor struct` 'Fee Paid' B-2006-0948 30-0028 Residential Single Family 16X20 Addition per(BOA) 38000 271 B-2007-0967 Pool 30-0028 Residential Single Family INSTALL INGROUND POOL 24000 173 B-2008-0052 REPAIR/REPLACE 30.0028 Residential Single Family CONSTRUCT 16 X 20 DECK 8565 61 G-2007-0319 GAS 30.0028 Residential Single Family UNDERGROUND GAS LINE 0 20 G-2008-0103 GAS 30-0028 Residential Single Family 1 GRILL 0 40 P-15-454 1 Plumbing Fixture 30.0028 Residential Single Family BSMT: 1 WATER HEATER 0 20 INDIRECT P-2002-0034 30.0028 Residential Single Family Sub-Bsmt-1 back flow prey,1 0 20 deduct meter Total Permits: 7 70565 605 1 of 1 . C�rel6' 780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS 1.00: continued 104.10.2 Add subsection: 104.10.2 Matters Not Provided For. In recognition of the inherent difficulty of drafting a functional code that contemplates every situation that may arise in the area of building safety, this section provides the building official, the building code appeals board, or the BBRS itself, with reasonable discretion to ensure that all life safety issues that may arise in the enforcement of this code may be appropriately addressed. Matters not specifically provided for in this code regarding structural, egress, fire, energy, sanitary or other requirements essential to occupant safety shall be determined by the building official or, in the case of an appeal, the building code appeals board. If this provision is used, the building official shall notify the BBRS in writing within seven days of such determination. For highly specialized buildings and structures that conform to unique code requirements or nationally recognized standards not required in this code,registered design professionals shall provide sufficient information to the building Oficial to support their approval. For fire protection design, see Chapter 9. 105.1 Replace as follows: 105.1 Required. It shall be unlawful to construct,reconstruct,alter,repair,remove or demolish a building or structure;or to change the use or occupancy of a building or structure; or to install or alter any equipment for which provision is made or the installation of which is regulated by this code without first filing a written application with the building official and obtaining the required permit. 105.1.1 Delete this subsection. 105.1.2 Delete this subsection. 105.2 Replace as follows: 105.2 Work Exempt from Permit. Except for activities which may require a permit pursuant to other laws,by-laws, rules and the specialized codes of M.G.L. c. 143, § 96,a building permit is not required for the following activities: 1. One story detached accessory buildings used as tool or storage sheds, playhouses and similar uses, provided the floor area does not exceed 120 square feet. 2. Fences six feet in height or less. 3. Retaining walls which retain less than four feet of unbalanced fill. 4. Ordinary repairs as defined in Chapter 2.00 and 9.00. 5. Greenhouses covered exclusively with plastic film intended for agricultural use. 6. Painting, papering, tiling, carpeting, cabinets, counter tops and similar finish work. 7. Swings and other playground equipment. 105.2.1 Replace and add note as follows: 105.2.1 Emergency Repairs. Where equipment replacements and repairs governed by this code must be performed in an emergency situation, the permit application shall be submitted within the next working business day to the building official. Note: Pursuant to the terms of the specialized codes of M.G.L. c. 143, § 96, this exemption might not apply to emergency repairs conducted under those specialized codes. 105.2.2 Delete this subsection. 'u1a'(Ulti Salem,MA Code of Ordinances ARTICLE VI. - DRAINAGE ALTERATION PERMITS Sec. 38-286. - Required. It shall he unlawful for any person or other legal owner of real property in the city to disturb the existing grade of land by more than two feet without first obtaining the approval of the following: (1) The conservation commission if the property is subject to the Wetlands Protection Act; or (2) The city planning board if the property is being altered pursuant to a subdivision which is subject to the Subdivision Control Law; and (3) The city engineer. (Code 1973, § 26-170) Sec. 38-287. - Conditions for issuance. A permit required by this article will be issued by the city engineer to the owner or the owner's duly authorized agent after the city engineer has reviewed a plan to be submitted showing the nature of the grade change proposed, but only on such conditions, which shall be determined by the city engineer, that will ensure that the proposed grade changes will not adversely affect existing drainage and groundwater conditions, which would affect the public health, safety and welfare of any public way or adjoining real property. The city engineer shall adopt rules and regulations to implement this article subject to city council approval. Any denial of an application properly made under this article may be appealed to the board of appeal. (Code 1973, § 26-171) Sec. 38-288. - Fee. A permit fee of$100.00 shall be paid at the time that an application for a drainage permit is filed with the city engineer. The city engineer shall act to grant, with or without conditions, or deny a permit application within 14 days of its filing. Failure of the city engineer to act within 14 days shall be considered a denial. (Code 1973, § 26-172; Ord. of 6-10-2004, § 1) Sec. 38-289. - Liability for damage to private property. Under this article, liability for damage to private property abutting the construction and caused by the permittee, his agents or servants shall be borne solely by the permittee performing the work. (Code 1973, § 26-173) Sec. 38-290. - Penalty. Any permittee who violates or refuses to comply with any section of this article shall forfeit and pay to the use of the city a sum of not less than $50.00 or more than $500.00 for each violation. Each day or portion of a day that any violation is allowed to continue shall constitute a separate violation of this article. (Code 1973, 126-174) https./Av .municocle.com/library/ma/salem/codes/code of ordinances?swrchRequest=%7B°/22searchText%22:%22drainage%22,%22pageNum°/,72:1,%2... 1/1 4.1 -.GENERAL REQUIREMENTS 4.1.1 Table of Dimensional Requirements. No building or structure shall be constructed nor shall any existing building or structure be enlarged or altered except in conformance with the Table of Dimensional Requirements as to lot coverage, lot area, land area per dwelling unit, lot width, front, side and rear setbacks, and maximum height of structures, except as may otherwise be provided elsewhere herein. Not more than one (1) dwelling shall be built upon any such lot unless otherwise authorized herein. No existing lot shall be changed in size or shape so as to result in a violation of the requirements set forth in said Table. Table of Dimensional Requirements RC R1 R2* R3** B1 i B2 j B4 I BPD NRCC Minimum lot : 80,000 i 15,000 115,000 25,000 6,000 12,000 6,000 40,000 . 40,000 15,000 area (square feet) I' Minimum lot 80,000 15,000r : 17,500 3,500 3,500 area per dwelling unit (square feet) I Minimum lot . 200 100 100 100 60 100 60 150 150 60 frontage i (feet) Minimum lot 200 100 100 100 X60 100 60 150 150 60 i ; width (feet) ---------- Maximum ----Maximum 20 i 30 35 35 40 1 25 i 80 45 45 SO lot coverage i by all : buildings Minimum 10 open space (percent) j Minimum 40 j 15 1 15 15 15 30 1 - 30 50 I depth of j 1 front yard (feet) r - ----- --� t } ---� Minimum 40 10 10 20 10 10 - 30 30 width of side yard (feet) i Minimum 100 I— �-- -�--- ----� — �_ �-- - _ _-----� 30 30 30 30 130 25 30 50 depth of j I rear yard (feet) I i 50 Maximum 35 35 135* 45** 30 30 45 45 50 height of ( 1 buildings (feet) j f I Maximum 2.5 2.5 2.5* 3.5** 4 height of I buildings (stories) i Minimum 100 40 30 40 1 i distance between buildings on I lot (feet) i ' Buffer area - - - 75 required j (feet from j any i residential or conservation j use) j r._ Floor area - - 2 to 1 ratio i _--__.-_i___ ------- ____l_ _ _ _--- * Age-restricted housing constructed by the Salem Housing Authority shall be exempt from height requirements in the R2 district. j ** Multifamily dwellings in R3 Districts on lots held under a single ownership and consisting of a i minimum of two hundred thousand (200,000) square feet may be built to a maximum height of fifty (50) feet or four (4) stories in height. ***Retaining walls, boundary walls and/or fences maybe built abutting the property line. The height of the retaining walls, boundary walls and/or fences shall be measured on the inside face of the structure on the owner's side. See Section 6.8. Visibility at Intersections. i � �. ------__._---------_ - __._.. TABLE OF B5 DISTRICT DIMENSIONAL REQUIREMENTS I Nonresidential Nonresidential ! Residential Residential Uses—Existing 1 Uses—New i Uses or Uses or I Building Construction Mixed Use Mixed Use- -Existing New Buildings; Construction; see note 1 see note 1 Minimum lot area (square feet) 2,000 2,000 . 2,000 2,000 � , Toed FSM Ir 15/z(/I SI}rsu�� �rr� 19 CHVNDLE12 D N/'rG E Pe► z/mu►,� lit �i'N 0 rUTAINING WAtV - - - � -40 Wil! btu, zcn�- i a. . 1 CITY OF SALEM, MASSACHUSETTS ' INSPECTIONAL SERVICES DEPARTMENT THOMAS ST. PIERRE HIMBERLEY DRISCOLL INSPECTIONAL SERVICES DIRECTOR /BUILDING COMMISSIONER MAYOR 120 WASHINGTON STREET♦ SALEM,MASSACHUSETTS 01970 (DTEL978-745-9595 4FAX:978-740-9846 Date: December 7,2015 50< -ft,) 19 cFWbj_ jt?D, To: Sean M Kelleher (fopLe 1D Jim ucw 1 5 Address: 19 Chandler Road City/State/Zip: Salem,MA 01970 Re: Fence Height/19 Chandler Road Dear Mr.Kelleher, The Building Department has been made aware that sections of the fence at the property cited above exceed the maximum allowed height for that area. Your property is located in an R2 (residential)zone. The maximum allowed height for a fence in a Residential zone is six feet(6'- 0"). The measurement is to be taken from the"inside face of the structure on the owner's side." You are required to reduce the height of the fence to a maximum of six feet,or to obtain a Variance from the Zoning Board of Appeals. Please contact the Building Department within 10 days of receipt of this letter to discuss your plan of action. Failure to resolve the issues cited above will be construed as non-compliance and may result in the issue of municipal tickets and fines as well as further enforcement actions. Thank-you, Harry Wagg Assistant Building Inspector 978-619-5643 hwagg@salem.com cc T. StPierre/Building Commissioner; file CITY OF SALEM, MASSACHUSETTS INSPECTIONAL SERVICES DEPARTMENT THOMAS ST.PIERRE KIMBERLEY DRISCOLL INSPECTIONAL SERVICES DIRECTOR /BUILDING COMMISSIONER MAYOR 120 WASHINGTON STREET♦ SALEM,MASSACHUSETTS 01970 TEL:978-745-9595 ♦ FAX:978.740-9846 March 21, 2016 ANT Th Iq Re 19 Chandler Road DIS Nt7I CO P`f -rb JIM LaokS , Sean and Danielle Kelleher 19 Chandler Road Salem, MA 01970 Mr. and Mrs.Kelleher, The Building Department has been asked to address several zoning issues related to fence location, fence height, and change of existing grade along the boundary between the Properties at 3 Lillian Road and 19 Chandler Road. Fence location must conform to real estate property lines. Conflicts regarding property lines are a civil matter, and may require a professional land survey for resolution. The Building Department does not become involved in property line disputes. Fence height is measured from grade level at the fence owner's side of the fence. A site visit to 19 Chandler has established that the fence in question is within the six-foot limit when measured from grade at that address. The grade level,however,was altered to accommodate the installation of an in-ground pool in 2007. When the grade of land is disturbed by more than two feet, the owner is required to notify the city engineer and apply for a drainage permit. Work cannot proceed until a drainage permit has been issued. In order to raise the grade at 19 Chandler Road, the height of an existing retaining wall between the two properties was also increased. The maximum height for border walls and fences, in a residential area, is six feet. The combined height of the existing wall and its extension exceeds six feet. This increase in height would have required a zoning variance. Because the elevated border wall is actually a retaining wall,and because it is more than four feet in height-it would have also required a building permit. CITY OF SALEM, MASSACHUSETTS INSPECTIONAL SERVICES DEPARTMENT THOMAS ST.PIERRE KIMBERLEY DRISCOLL INSPECTIONAL SERVICES DIRECTOR /BUILDING COMMISSIONER MAYOR 120 WASHINGTON STREET♦ SALEM,MASSACHUSETTS 01970 TEL:978-745-9595 ♦ FAX:978-740-9846 • A Permit for an in-ground pool was applied for and issued 5/21/2007. • There is no record on-file of a request for a zoning variance or for a building permit to increase the height of the border/retaining wall above 6'-0". • There is no record on-file that the City Engineer was notified of the intent to alter the grade of the land. Please check your records for any documentation regarding the fence, wall, or grade change. Call the Building Department(978-619-5642)within 30 days to let us know what documentation you have been able to locate. Sincerely, Harry Wagg Assistant Building Inspector 978-619-5643 hwagg@salem.com cc: T. St.Pierre,Building Commissioner CITY OF SALEM, ,1\4ASSACHU,,,-)F BUILDING DL-.i,,aR i.mi,\!I 120\V-i,SHINGTON STRFv,T 3""Fl- (978) 745-9595 KlklBERLEY DRISCOU.. ix(978) 740-9846 :'MAYOR TI io ,% S S7.PIERRE D1RT--'CT0R()T- PUBLIC "ROPER TI , Apri 1 29 2016 james Lewis 3 Lillian road Salem Ma. 01970 Re: Zoning concerns 19 Chandler Dear Mr., Lewis, Thank You for taking the time to meet the other day along with your neighbor, Kimberly Ahmed. 4)c; we discussed,the work at 19 Chandler( pool,patio,and raising of the wall,) was done in 2007. "rhe Mass Zoning Law MGI.40A section 7 states that no enforcement actions may be taken if the work was permitted and a Period of six years has passed. It is my opinion that this is the case regarding the work at 19 Chandler Roac Regarding Fence height-The Salem zoning Ordinance states the following "Retaining walls, boundary wail and or fences may be built abutting the property line. The height of the retaining wali, bounda« walls and w Fences sliall be measured on the inside face of the structure on the owners side. See section 6.8, visibility a; intersections " As long as the abutters fence does not exceed six feet , measured from their side. 1 do not sec that they are in violation of this section. As far as the lot line issue goes,we both agree that the City does not play a roll in this and that ti is d vi matten f f you ficei you are aggrieved by my Zoning interpretations,your Appeal is to the Salem Zoning board ;,: Appeals. Sincere Thomas St.PietTe GNr x w o ao w C�- NAIL SET WALL BACK 0.9' DRILL HOLE SET WALL BACK 1.0' IRON LiJ W o WALL BACK 4' CONCRETE WALL SET z N81 Ld 6, 154 S.F. 7,053 S.F. #3 LILLIAN RD. Q Z #1 LILLIAN RD. o LEWIS JOINT NAIL Q STEPHEN & KIMBERLY q REVOCABLE TRUST SET ON Z AHMED L=39.3R=25'9' RE LL) 79.93' 94.88' Z DRILL HOLE BOUND J SET FOUND LILLIAN ROAD THIS PLAN IS BASED ON AN ON THE PLAN OF LAND IN SALEM, MA GROUND SURVEY PERFORMED ON PREPARED FOR MARCH 8, 2016. LEWIS JO/NT REVOCABLE TRUST AND DENNI J. MCMANUS, PLS STEPHEN & K/MSERL Y AHMED DATE' 3/8/16 SCALE 1" = 40' ✓OB NO. 96110 eV �v j LANDMARK ENGINEERING & SURVEYING, INC. 583 CHESTNUT STREET LYNN, MA 01904 " ;� ' (781) 592-7016 I CITY OF SALEM, MASSACHUSETTS BOARD OF APPEALS PETITION FORM CITY OF SALEM,MASSACHUSETTS BOARD OF APPEALS 120 WASHINGTON STREET,3RD FLOORI'��Y 2140; r oi/ S.1LEM,MASSACHUSETTS01970 WRNS j' Thomas St.Pierre,Director of Inspectional Services Phone:978-619-5641 /Fax:978-740-9846 KmmeRLEY DRISCOLL Erin Schaeffer,Staff Planner MAYOR Phone:978-619-5685/Fax:978-740-0404 TO THE BOARD OF APPEALS: The Undersigned represent that he/she is/are the owners of certain parcel of land located at: 3 Lillian Road Salem MA Address: ' ' Zoning District: I, An application is being submitted to the Board of Appeal for the following reason(s): This statement must describe what you propose to build,the dimensions,the zone property is in,and the zoning requirements.(Example: 1 am proposing to construct a 10'x 10'one story addition to my home located at 3 Salem Lane, in the R-2 Zoning District. The Zoning Ordinance requires the minimum depth of the rear yard to he 30 feet. The current depth ofmy rear yard is 32 feet; the proposed addition would reduce the depth of the rear yard to 22 feet.) I am contesting the Inspection Services Report of 4/19/16, attached, for as GL 40A, the interpretation of "Fence" and fence height, and the enforcement of lot line disputes. See attached rebuttal and supporting documentation. For this reason I am requesting: O Variance(s) from provisions of Section of the Zoning Ordinance,specifically from (i.e. minimum depth ofrearyard). What is allowed is (ft?sq J7?stories? %?), and what I am proposing is (ft?sq ft?stories? %?). ( )A Special Permit under Section of the Zoning Ordinance in order to O Appeal of the Decision of the Building Inspector(described below): ( )Comprehensive Permit for construction of low or moderate income housing(describe below): Current Property Use: Are Lot Dimensions Included?( )Yes O No Why? (Example.:Two Family Home) The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem Zoning Ordinance and allow the project to be constructed as per the plans submitted,as the enforcement of said Zoning By-Laws would involve practical difficulty or unnecessary hardship to the Undersigned and relief may be granted without substantially derogating from the intent and purpose of the Zoning Ordinance. CITY OF SALEM, MASSACHUSETTS BOARD OF APPEALS PETITION FORM The following written statement has been submitted with this application: ( ) For all Variance requests a written Statement of Hardship demonstrating the following must be attached: a) Special conditions and circumstances that especially affect the land,building,or structure involved, generally not affecting other lands,buildings,and structures in the same district; b) Literal enforcement of the provisions of the Ordinance would involved substantial hardship to the applicant;and c) Desirable relief may be granted without substantial detriment to the public good,and without nullifying or substantially derogating from the intent of the district or the purpose of the ordinance. O For all Special Permit requests a Statement of Grounds must be attached. An application for a special permit for a nonconforming use or structure shall include a statement demonstrating howthe proposed change shall not be substantially more detrimental than the existing nonconforming use to the neighborhood in accordance with Section 9.4 Special Permits. Such a statement should include reference to the following criteria: a) Social,economic,or community needs served by the proposal; b) Traffic flow and safety,including parking and loading; c) Adequacy of utilities and other public services; d) Impacts on the natural environment,including drainage; e) Neighborhood character;and f) Potential fiscal impact, including impact on City tax base and employment. ( ) For all Comprehensive Permits for construction of low or moderate income applicants should refer to M.G.L. Ch.40B §20-23. Previous applications to the Board of Appeals involving this property have been submitted with this petition form. The Building Commissioner can provide documentation olprevious applications to the petitioner or his representative. James W Lewis If differentfrompetitioner. Petitioner: Property Owner: Address: 3 Lillian Road, Salem Address: Telephone: 978.631 .9855 Telephone: Emal:1W.l@WI COmCaSt.net Email Signature: (Attached consent letter is also acceptable) Signatur . Date: Date:May 24,2016 /f different from petitioner. Representative: A TRUE Address: ATTEST Telephone: Signature: Date: CITY CLERK DATE DPCD DATE This original application must be filed with the City Clerk JW Lewis 978.631.9855 3 Lillian Road, Salem MA 01970 Board of Appeals Rebuttal — May 24, 2016 1 am contesting the Inspection Services Report of 4/19/16, attached, for assumptions that all work performed was permitted and covered by MGL 40A, the interpretation of "Fence" and fence height, and the enforcement of lot line disputes. "The Mass Zoning Law MGL 40A section 7 states that no enforcement actions may be taken if the work was permitted and a period of six years has passed. It is my opinion that this is the case regarding the work at 19 Chandler Road. " I disagree -portions of the construction were not permitted and is within the 10 year statute of limitation and enforceable. See Inspection Services Report, 3/21/16 attached, which was received 4/26/2016. "Regarding Fence height-The Salem zoning Ordinance states the following "Retaining walls, boundary walls and or fences MAY be built abutting the property line. The height of the retaining wall, boundary walls and or fences shall be measured on the inside face of the structure on the owners side. See section 6.8, visibility at intersections "As long as the abutters fence does not exceed six feet, measured from their side, I do not see that they are in violation of this section." (Disagree -Living privacy Fence exceeds six feet.) The word "MAY" indicated that they do not necessarily abutt the property line. In this case a secondary fence, albeit, a living privacy fence directly adjacent to the property bordering picket fence exceeds the 6 foot limit and is in violation of MGL 49, Section 21 , 6 foot height limitation. I also contend that a single board or slat of a fence does not constitute a barrier. When multiple boards or slats are arranged to form a barrier it then constitutes a fence. Similarly a single tree does not constitute a fence but when multiple trees are planted to create a barrier, albeit, a visual barrier, it then constitutes a living fence or privacy fence and is subject to MGL 49. 'As far as the lot line issue goes, we both agree that the City does not play a role in this and that it is a Civil matter." This statement requires correction. According to MGL 49, Section 1 & 15, the City does play a role in enforcement of lot line disputes. Where this function lies within City Government is in question but the likely place it should be is in the inspection department. Advise where this function resides within City Government so we may address the lot line issue. CITY OF SALEM, MASSACHUSETTS BUILDING DEPARTMENT 120 WASHINGTON STREET,3° FLOOR TEL.(978)745-9595 FAX(978)740-9846 KIMBERLEY DRISCOLL MAYOR THOMAS ST.Pmm DIRECTOR OF PUBLIC PROPERTY/BUILDING COMMISSIONER April 29,2016 3 Lillian road Salem Ma.01970 Re: Zoning concerns 19 Chandler Dear Mr.,Lewis, Thank you for taking the time to meet the other day along with your neighbor,Kimberly Ahmed.As we discussed,the work at 19 Chandler( pool,patio,and rising of the wall,) was done in 2007.The Mass Zoning Law MGL 40A section 7 states that no enforcement actions may be taken if the work was permitted and a period of six years has passed It is my opinion that this is the case regarding the work at 19 Chandler Road. Regarding Fence height-The Salem zoning Ordinance states the following "Retaining walls,boundary walls and or fences may be built abutting the property line.The height of the retaining wall,boundary walls and or fences shall be measured on the inside face of the structure on the owners side. See section 6.8,visibility at intersections" As long as the abutters fence does not exceed six feet,measured from their side,I do not see that they are in violation of this section. As far as the lot line issue goes,we both agree that the City does not play a roll in this and that it is a Civil matter. w If you feee.ypu.are aggrieved=by my Zoning interpretations,your Appeal is to the Salem Zoning Board of Appeals• Sincertyj _ Thomas St.Pierre Kf CITY OF SALEM, MASSACHUSETTS INSPECTIONAL SERVICES DEPARTMENT THOMAS ST.PIERRE INSPECTIONAL SERVICES DIRECTOR /BUILDING COMMISSIONER KIMBERLEY DRISCOLL MAYOR 170 WAswNGroN STam♦SALEM,MAssAcmus=01970 TFu 978-745-9595♦FAx:978-740-9846 March 21,2016 Re 19 Chandler Road 31LZ' 1(i Sean and Danielle Kelleher 19 Chandler Road Salem,MA 01970 Mr.and Mrs.Kelleher; The Building Department has been asked to address several zoning issues related to fence location,fence height,and change of existing grade along the boundary between the properties at 3 Lillian Road and 19 Chandler Road. Fence location must conform to real estate property lines.Conflicts regarding property lines are a civil matter,and may require a professional land survey for resolution. The Building Department does not become involved in property line disputes. Fence height is measured from grade level at the fence owner's side of the fence.A site visit to 19 Chandler has established that the fence in question is within the six-foot limit when measured from grade at that address. The grade level, however,was altered to accommodate the installation of an in-ground pool in 2007. When the grade of land is disturbed by more than two feet,the owner is required to notify the city engineer and apply for a drainage permit. Work cannot proceed until a drainage permit has been issued. In order to raise the grade at 19 Chandler Road,the height of an existing retaining wall between the two properties was also increased.The maximum height for border walls and fences,in a residential area, is six feet. The combined height of the existing wall and its extension exceeds six feet.This increase in height would have required a zoning variance. Because the elevated border wall is actually a retaining wall,and because it is more than four feet in height-it would have also required a building permit. CITY OF SALEM, MASSACHUSETTS INSPECTIONAL SERVICES DEPARTMENT THOMAS ST.PWRRR INSPECTIONAL SERVICES DIRECTOR /BIIn.DING COMMISSIONER K MBERLEYDRISCOLL MAYOR 120 WMIENGTON STR>Er♦SALEK MAsseaaUserts 01970 TBL 976-745-9595♦FAx:978-740-9846 • A Re _'t_for an in-ground pool was applied for and issued 5/21/2007. • There is no record on-file of a request for a zoning variance or for a building permi to increase the height of the border/retaining wall above 6'-0". • There is no record on-file that the City Engineer was notified of the intent to alter the grade of the land. Please check your records for any documentation regarding the fence,wall,or grade change. Call the Building Department(978-619-5642)within 30 days to let us know what documentation you have been able to locate. Sincerely, Harry Wagg Assistant Building Inspector 978-619-5643 hwagg@salem.com cc:T. St.Piene,Building Commissioner x w Q x O w 01 NAIL SET WALL BACK 0.9' DRILL HOLE FNn WALL SET Wrot WK 1.0' IRON Ld W WALL RACK CONCRETE WALL SET L1J 0 0.7' w Z ILd 0 N 6,154 S.F. o, #3 7,053 ILLIAN RD. °D Q Z #1 LILLIAN RD. 0 LENS JOINT NAL Q STEPHEN & KIMBERLY q REVOCABLE TRUST SET ON z F AHMED L=39.39' R R w R=25' � 79.93' 94.88' z DRILL HOLE BOUND J SET FOUND LILLIAN ROAD THIS PLAN IS BASED ON AN ON THE PLAN OF LAND IN SALEM, MA GROUND SURVEY PERFORMED ON PREPARED FOR MARCH 8, 016. LEWIS JOINT REVOCABLE TRUST AND DENN12K. MCMANUS, P.L.$y- y�N 0T Mgss9 _ STEPHEN & KIMBERLY AHMED DENNIS �N DATE: 3/8/16 SC,ALE.• 1' = 40' 1 JOB. NO. 96110 n4U LANDMARK o ti ENGINEERING & SURVEWNG, INC. �FESSI e 583 CHESTNUT STREET 4N0 SUR1LYNN, MA 01904 (781) 592-7016 Zoning Board of Appeals - June 2016 JW Lewis,3 Lillian Road, Salem, MA 01970 Vs. Sean Kelleher, 19 Chandler Rd, Salem Ryan Davis, 26 Linden, Salem Property Issues: 1. FENCE HEIGHT NOT COMPLIANT TO CITY CODE 2. GRADE AT PROPERTY LOT LINE MODIFIED 3. ADJACENT FENCES INSTALLED OVER LOT LINE ON 3 LILLIAN Rd PROPERTY. 5/23/2016 1, Grievance : 19 Chandler Rd 1. FENCE HEIGHT NOT COMPLIANT TO CITY CODE r 2. GRADE AT PROPERTY LOT LINE MODIFIED rt, 3. ADJACENT FENCES INSTALLED OVER LOT LINE ON • , 3 LILLIAN Rd PROPERTY. �` F b x s, F 5/23/2016 2 13 <. • s' HX�triK ��` �,,a� ,�„a�1,�N�x � �r'�-zf. '#� LK, -..,I �T1,17" to f e r, ^ iL$ sM•"" w'+ 'y.'"•• ,w:,r +' 11w.+t+� ' 3.' `b� ni....�. - F ' i` 'Tt 1 • Chandler Tey• t�#£#J#iF.FI y` ,r••i�1•FR♦i#•• {(` i({4�#i�. 1. FENCE HEIGHT �•yet � �. (,. ��FkFS; t I. .rt. • • • CITY CODE A i residential • districts, ~ hedges (arborvitae - living fence) and not • feet intr height, shall • ' permitted on oand on or to the rear of all front yardr within all rear and side property lines on interior lots i 4 v �• setback lines." . The unkempt overgrown arborvitae Living Fence is a health hazard from bird dung of nesting birds. 5/23/2016 4 i • h. ♦ Y � ♦ 1 ♦?1+ !i♦ • • ♦ tVttij' r • iiats�Y is iia Y4 '♦ ii l +# � r-iii♦ t.i! i i9 Y 2 . GRADE AT PROPERTY LOT LINE MODIFIED p. . above and . permanent structure OrdinanceGround level even with wall, 2006 within 5 feet of property line. See: • ry Buildings and Structures ss G k� 5/23/2016 5 yfL} � { i :s ,rr rey . r4w •• t if'. r .. .y.x ri. F rA. � � i � f y.*. ^q {1A .;w. x i 1* �,* �• r _ Grievance : 19 Chandler Rd AND 26 Linden 3. ADJACENT FENCES INSTALLED OVER LOT LINE ON 3 LILLIAN Rd PROPERTY. Property line encroachment. "Fences do not indicate legal property lines. A property boundary survey may be required to enforce Code restrictions and resolve property boundary disputes." Boundary survey performed 3/8/2016 indicates that 19 Chandler Rd AND 26 Linden fences are on 3 Lillian Rd property by approximately one foot (1'). Landmark Engineering & Surveying, Inc. 583 Chestnut Street, Lynn, MA 01904 Voice: (781) 592-7016, Fax: (781)595-3069 Invoice Number: 1725 Customer ID: 16110 5/23/2016 6I�i Boundary Survey PROPERTY LINE BOUNDARY LAYOUT performed 3/8/2016 1 & 3 LILLIAN ROAD, SALEM MA Landmark Engineering &Surveying, Inc. WALL BACK IS THE BACK OF THE CONCRETE RETAINING WAL 583 Chestnut Street, Lynn, MA 01904 Voice: (781) 592 7016, Fax: (781)595-3069 w TO THE RESPECTIVE PROPERTY LINE. Invoice Number: 1725 Customer ID: 16110 0 0.9' = 10.8° 0.8' = 9.6" 1 .0' = 12.0° O Ld 0- NAIL SEr WALL BACK 0.9' DRILL HOLE SET wALL emx to'. IRON LLI W&L tAc CONCRETE.WALL SET W `8 o.r P Z LLJ 0 6,154 S.F. 7,053 S.F. g #3 ULUAN RD. Z #1 LILLIAN RD. o LEWIS JOINT NAIL Q STEPHEN & KIMBERLY REVOCABLE TRUST SET ON Z . = AHMED L=39.5'39 RR. TIE w U 79.93' 94.88' R=2Z DRILL HOLE BOUND J SET FOUND LILLIAN ROAD 5/23/2016 7 General Laws of Massachusetts - Chapter 49 Fences, Fence Viewers, Pounds and Field Drivers • Section 1. The mayor of each city, subject to confirmation by the city council, and the selectmen of each town shall annually appoint two or more fence viewers, to hold office for one year and until their successors are qualified. • Section 15. If it is determined that the true division line is in another place, each occupant shall remove his part of the fence to and rebuild the same on such line and in case of neglect or refusal by either to remove and rebuild his sure thereof, the other may apply to the fence viewers, who shall view the premises and assign a time within which the fence shall be removed and rebuilt, and shall give the delinquent party notice thereof; and if such party does not remove and rebuild the fence within the time so assigned the other party may remove and rebuild the same and recover double the expense thereof, with the fees of the fence viewers, to be ascertained and recovered in the manner provided in section five. 5/23/2016 8 General Laws of Massachusetts - Chapter 49 • Section 5. If a deficient fence which has been built up or repaired by a complainant is, after due notice to each party, adjudged sufficient by the fence viewers, and the value of the part of the delinquent occupant, together with the fees of the fence viewers, has been ascertained by a certificate under their hands, the complainant may demand either of the owner or of the occupant of the land where the fence was deficient double the amount so ascertained; and upon the neglect or refusal to pay the same for one month after demand, he may recover the same, with interest at one per cent a month, in an action of contract. • Section 21. A fence or other structure in the nature of a fence which unnecessarily exceeds six feet in height and is maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property shall be deemed a private nuisance. Any such owner or occupant injured in the comfort or enjoyment of his estate thereby may have an action of tort for damages under chapter two hundred and forty-three. 5/23/2016 9 Permit and Inspection 19 Chandler • Pool permit B2007-0967 issued 5/21/2007 • Deck (16 X 20) permit B2008-0052 issued 7/12/2007 Was permit required to construct decking around the pool changing the ground elevation to meet the above ground portion of the pool? No other permits or variances on record per City of Salem. 5/23/2016 10 Inspection Services Report, 3/21/16 19 Chandler Road, Salem MA Received 4/26/16 Fence location must conform to real estate property lines. Conflicts regarding property lines are a civil matter, and may require a professional land survey for resolution. The Building Department does not.become involved in property line disputes. (Disagree ? — Gen Laws of Mass, Chap 49) Fence height is measured from grade level at the fence owner's side of the fence. A site visit to 19 Chandler has established that the fence in question is within the six-foot limit when measured from grade at that address. (Disagree — Living privacy FENCE exceeds six-feet) The grade level, however, was altered to accommodate the installation of an in-ground pool in 2007. When the grade of land is disturbed by more than two feet, the owner is required to notify the city engineer and apply for a drainage permit. Work cannot proceed until a drainage permit has been issued. (Code Violation within 10 year limit) In order to raise the grade at 19 Chandler Road, the height of an existing retaining wall between the two properties was also increased. The maximum height for border walls and fences, in a residential area, is six feet. The combined height of the existing wall and its extension exceeds six feet. This increase in height would have required a zoning variance. (Code Violation within 10 year limit) 5/23/2016 11 Inspection Services Report, 3/21/16 19 Chandler Road, Salem MA Because the elevated border wall is actually a retaining wall, and because it is more than four feet in height- it would have a/SO required a building permit. (Code Violation within 10 year limit) • A permit for an in-ground pool was applied for and issued 5/21/2007. • There is no record on-file of a request for a zoning variance or for a building permit to increase the height of the border / retaining wall above 6' — 0". (Code Violation within 10 year limit) • There is no record on-file that the City Engineer was notified of the intent to alter the grade of the land. Please check your records for any dOcumentation regarding the fence, wall, or grade change. Call the Building Department (978-619-5642) within 30 days to let us know what documentation you have been able to locate. Harry Wagg 5/2 12 Building Inspector 12 Inspection Services Report, 4/29/16 19 Chandler Road, Salem MA Received 4/30/16 Thank you for taking the time to meet the other day along with your neighbor, Kimberly Ahmed. As we discussed, the work at 19 Chandler ( pool, patio, and raising of the wall,) was done in 2007. The Mass Zoning Law MGL 40A section 7 states that no enforcement actions may be taken if the work was permitted and a period of six years has passed. It is my opinion that this is the case regarding the work at 19 Chandler Road. (Disagree — portions of the construction were not permitted) Regarding Fence height-The Salem zoning Ordinance states the following "Retaining walls, boundary walls and or fences may be built abutting the property line. The height of the retaining wall, boundary walls and or fences shall be measured on the inside face of the structure on the owners side. See section 6.8, visibility at intersections " As long as the abutters fence does not exceed six feet , measured from their side, I do not see that they are in violation of this section. (Disagree — Living privacy Fence exceeds six feet.) As far as the lot line issue goes, we both agree that the City does not play a roll in this and that it is a Civil matter. .(Disagree ? — Gen Laws of Mass, Chap 49) If you feel you are aggrieved by my Zoning interpretations, your Appeal is to the Salem Zoning Board of Appeals. 5/Yff$flas St.Pierre 13 General Laws of Massachusetts - Chapter 40A Zoning — Section 7, Enforcement of zoning regulations; violations; penalties; jurisdiction of superior court. In Essence: Statute of limitation — Permitted = 6 Years Statute of limitation — Non-Permitted = 10 Years As verbally confirmed by Tom St Pierre 4/27/16, City of Salem Inspectional Services (Building Department / Public Property) 5/23/2016 14 SU M MARY 1 . FENCE HEIGHT NOT COMPLIANT TO CITY CODE — 6 Feet Max • CITY OF SALEM ZONING ORDINANCE , SECTION 4.0 DIMENSIONAL REQUIREMENTS and • General Laws of Massachusetts - Chapter 49, Section 21 - fences not to exceed six feet. I contend that a single board or slat of a fence does not constitute a barrier. When multiple boards or slats are arranged to form a barrier it then constitutes a fence. Similarly a single tree does not I constitute a fence but when multiple trees are planted to create a barrier, albeit, a visual barrier, it then constitutes a living fence or privacy fence and is subject to the above restrictions. Expectation: Adherence in accordance with above codes and penalties. As the injured party, reimbursement of all fees and expenses to correct these violations. Since the offending fence was constructed on my property is it subject to the six foot limit when measured from my property grade? 5/23/2016 15 SUMMARY 2. GRADE AT PROPERTY LOT LINE MODIFIED • SECTION 3.0 USE REGULATIONS, 3.2 ACCESSORY USES, 3.2.4 Accessory Buildings and Structures. 3. No unattached accessory building or structure shall be located nearer than five (5) feet to any side lot line or five (5) feet from the rear lot line... contend that the raising of the ground with rocks and sand to support a paver pool decking constitutes a structure and as such this code is applicable. • Per City of Salem Inspection Report: 1. The grade level was altered more than two feet requiring a drainage permit. No permit on file. 2. Retaining wall was increased beyond the maximum 6' height for border walls and fences. No permit or variance on file. Since no permit or variance exists this is subject to remedy via General Laws of Massachusetts - Chapter 40A within the 10 year statute of limitations. Expectation: Restoration of land grade at retaining wall to pre-2007 level in accordance with above codes and penalties. As the injured party, reimbursement of all fees and expenses to correct these violations. I contend that the City of Salem is culpable for its dereliction of duty in fulfilling their responsibility to inspect the installation of this pool and accessories counter to their mission statement. 5/23/2016 _ 16 SUMMARY 3. ADJACENT FENCES INSTALLED OVER LOT LINE ON 3 LILLIAN Rd PROPERTY. Boundary survey performed 3/8/2016 indicates that 19 Chandler Rd AND 26 Linden fences are on 3 Lillian Rd property by approximately one foot (1'). Expectation: Relocate offending fences to their respective properties in accordance with General Laws of Massachusetts - Chapter 49, Section 5 & 15. As the injured party, reimbursement of all fees and expenses to correct these violations. What allows the City of Salem Government to circumvent supporting General Laws of Massachusetts - Chapter 49, Section 1? Or do they? 5/23/2016 17 JUN 15 2016 Zoning Board of Appeals - June 2016 DEPT. T PLY DEVELOPPLANNING & COMMUNITY Supplemental Data JW Lewis,3 Lillian Road, Salem, MA 01970 Vs. Sean Kelleher, 19 Chandler Rd, Salem Ryan Davis, 26 Linden, Salem Property Issues: 1. FENCE HEIGHT NOT COMPLIANT TO CITY CODE 2. GRADE AT PROPERTY LOT LINE MODIFIED 3. ADJACENT FENCES INSTALLED OVER LOT LINE ON 3 LILLIAN Rd PROPERTY. 9' - 6„ ,p WCRAFT a ROOM snm-m.I « M96D -1•_ ,'`Pater,�r�m III[]]IL1111,1w�U1 LOT 16 «_ — _ LOT 27 - -- !-.. LA C:'. _ L — F1 I ♦ � LO-r 26 T—rr. S•aP.l �. r t 85,oo' CHANDLCR ROAD ¢ •� _� -��AC'119UFVEYMO WNP® PLOT PLAN SUBMITTED WITH PERMIT i aP m w JY ... L Al �■ i,9,Chandler Rd kT I' • � � � -.E.. �' - CGoogle,� Prescriptive Easement or Adverse Possession DOES NOT APPLY https://malegislature.gov/Laws/GeneralLaws/SearchResults Chapter 187 Section 2. No person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years. 26 linden, Sold 2001 19 Chandler, Sold 1999 1 Lillian, Sold 2002 3 Lillian, Sold 1985 � ♦ Y i 'n'�3; �>♦W R A i ` ye t 1 • � 34 DIRECTIONVIEW IN OF ARROW GRADE 'MODIFIED TO ACCOMODATE POOL DECKING TRESPASSING ONTO LOT 27 & 26 AND VIOLATING CITY 10' Fence Ordinance 3:2.4 Accessory Buildings and Structures ('NO PERMFT) 9' - 6" Pool Deck (Pavers & Sup`porting Structures) ' , ._.. ' . .., � _. _ l i ea+Jm — �'�.�rr.�...��"e'+c.aeer .r�.r i s .. • ,,.- c���. v.� •. . ra .i Yi moi• - p frar.fY M.+i.1rM Til . - ww.r ar?A.R.4 • 'an rLir 1Mrr.wws*ss�.w, �-s _ . .. t y '4* '. a 'd0A=CRAFT x ..` _Rt 1 4 . _I. °PUMP RIMSMIlaft APM 01960 . - ham ., J' Ply Line Pro - , • - •J t Retainui r - Wall ' � : Section Y - Y (Grade modified to support pool deck. ) CITY OF SALEM, ZONING ORDINANCE September 10, 2009 3.2.4 Accessory Buildings and Structures. Accessory buildings and structures, such as garages and tool sheds, shall be allowed subject to the following regulations: 1 . No accessory building ..... 2. No accessory building ... .. 3. No unattached accessory building or structure shall be located nearer than five (5) feet to any side lot line (side lots in this instance refer to a projected line starting from the front lot line, terminating at the rear lot line parallel five (5) feet from the side or five (5) feet from the rear lot line. The building area of such building or structure, excluding garages, shall not exceed one (1 ) percent of the lot area or one hundred twenty (120) square feet, whichever is greater, and shall not be located closer than ten (10) feet to any other building on the same lot or any abutting lot. 4. Accessory structures and garages ... .. 3.2.5 Swimming Pools. Pools used ... .. 1 . All accessory structures, installations and equipment, such as showers, dressing rooms, equipment houses or other buildings, shall comply with all applicable requirements of the Zoning Ordinance. Salem Ordinance Dimensional Requirements htt s://www2.municode.com/fibra /ma/salem/codes/zonin ordinance?nodeId=S4.ODIRE P rY 9_ Comment at end of Table: " *** Retaining walls, boundary walls and or fences may be built abutting the property line. The height of the retaining wall, boundary walls and or fences shall be measured on the inside face of the structure on the owners side. See section 6.8, visibility at intersections " The grade or shape of lot 19 (19 Chandler) was changed by approx. 4 feet negating the above. As per: 4.1 GEN REQUIREMENTS 4.1 .1 . .. No existing lot shall be changed in size or shape so as to result in a violation of the requirements set forth in said Table. Fences Defined MGL 49 https:Hmalegislature.gov/Laws/GeneraILaws Massachusetts' Definition: An old farmer's rule of thumb is that a good fence must be "horse high, hog tight and bull strong." But Massachusetts' law is specific about what constitutes an adequate fence. Fence Viewers are given some discretion in the matter. Fences four feet high in good repair, constructed of rails timber, boards, iron or stone, and brooks rivers ponds creeks ditches and hedges or other things that the Fence Viewers consider equivalent are deemed legal and sufficient fences. (62) Fence Viewers resource: Handbook on Fence Viewers and Laws on Fences in the Commonwealth of Massachusetts Joseph S. Larson, Ph.D., and George F. Cramer, Esq. - Fence Viewers, Town of Pelham, Massachusetts © 2002, 2003, 2004 by Joseph S. Larson and George F. Cramer Available at: http://works.bepress.com/joseph_larson/l FENCE VIEWERS City of Amesbury, Pelham, Melrose, West Tisbury, Braintree, Halifax, Acton, City of Marlborough, MA, et. al. utilize Fence Viewers per MGL Chapter 49 City of Marlborough, MA recognizes Living Fence (Demonstrates Fence Viewer Best Practices): Para 270-22 All living (shrubs or bushes) fences or barriers or hedges shall conform to all height restrictions applicable to other fences in this article with regard to the fifteen-foot distance from street lines and side lines. Wikipedia Fence Viewer Definitions — Duties Upon request of any citizen, the Fence Viewer: views fences to see that they are in good repair and in case of disputes between neighbors, works to resolve their differences. Problems such as size, condition, and distance from property lines are complaints that still arise between neighbors.[5] Connecticut, Delaware, Maine, Massachusetts, New Hampshire, New York, Pennsylvania. Rhode Island, Vermont and Nebraska all have fence viewers. FENCE VIEWERS (Cont.) Wikipedia Fence Viewer Definitions — (Cont.) Massachusetts Specific: In Massachusetts, this position was first established in 1693 by a statute which was amended in 1785 and again in 1836.[9] Early Fence Viewers, armed with wall measurements, were able to arbitrate and/or prosecute such crimes by adjoining farmers. Trespassing by livestock was illegal. Boundaries and fences had to be maintained. If a farmer neglected his fence, his neighbor could do the repairs and charge his nonperforming neighbor twice the cost. If the negligent neighbor didn't come up with the money, he had to pay 12% interest until payment was made.[3] Today, the Fence Viewer advises lot owners prior to constructing a fence. The height of the fence can be no higher than six feet except near intersections.f31 Lot owners at intersections cannot erect a fence nor shrubbery closer than five feet to allow good visibility. Afence or shrub near there must be no higher than three feet.f31 Spite fences erected to annoy neighbors are illegal. The Fence Viewer has the power to order such fences changed to be inoffensive. If hostilities escalate, the building inspector is asked to become involved. His word is final. The Commonwealth of Massachusetts General Laws chapter 49 describe in detail the obligations of lot owners.f31 Commonwealth of Massachusetts City of Salem ���� 120 Washington St,3rd Floor Salem,MA 01970(978)745-9595 x5641 Return card to Building Division for Certificate of Occupancy . Permit No. B-2007-0967 PERMIT TO BUIL D FEE PAID: $173.00 DATE ISSUED: 5/21/2007 This certifies that Aqua-Craft, Inc. has permission to erect, alter, or demolish a_building_19_CHANDLER_ROAD Map/Lot: 300028-0 as follows: Pool INSTALL INGROUND POOL Contractor Name: DBA: Contractor License No: L 5/21/2007 Building Official f Date This permit shall be deemed abandoned and invalid unless the work authorized by this permit is commenced within�six—months after issuance.The Building Official may grant one or more extensions not to exceed six months each upon written request. All work authorized by this permit shall conform to the approved application and the approved constrictiondocuments for which this permit has been granted. All construction,alterations and changes of use of anyrbuilding and structures shall be in compliance with the local zoning by-laws a`nd codes. This permit shall be displayed in a location clearly visible from access street or road and shall be maintained ope�for public inspection for the entire duration of the work until the completion of the same. I i Jj1 The Certificate of Occupancy will not be issued until all applicable signatures by the Building and Fire Officials)e provided on this`fpermit. HIC#: "Persons contracting with unregistered contractors do not have access to the guaranty fund"(as set forth in MGL c.142A). Restrictions: I L Building plans are to be available on site. All Permit Cards are the property of the PROPERTY OWNER. Commonwealth of Massachusetts 3 City of Salem � � 120 Washington St,3rd Floor Salem,MA 01970(978)745-9595 x5641 Return card to Building Division for Certificate of Occupancy - l Structure CITY OF SALEM BUILDING PERMIT �JJ Excavation PERMIT TO BE POSTED IN THE WINDOW ' Footing INSPECTION RECORD Foundation Framing Mechanical Insulation INSPECTION: BY DATE Chimney/Smoke Chamber I Final � Plumbing/Gas I I Rough: Plumbing Rough:Gas Final I !_ Electrical Service - \ r 1 ttt Rough + 1 Final ! 1 If! Fire Department I f Preliminary Final t Health Department Preliminary Final v y� y XAi� _ F� �.. s5�♦Y�r T � A .. toU.� Tu 3F y, I 9 a � F L e } 1 J, ^j) + a�' 1� MA 7:14� '" `IC , s'r'i 1 S t'r1T�v{1t 1 1 € Uj A ,y r u a n � a I • f �A Y�'. 5 x ry ' I # Z E y s I f yip �r �k '� r} •� +� " ''� �'� y. 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' ! ♦ � ,i 4„ Y ♦ 4 .. 1♦F A. u u f YLL iia , 2 r �•• ' ' ,.. . „ . s, a tv-• rti a . ti + ' a I :+ ♦ r .R i l£ � .` r• •,... ,,��.�. i'e� ee Ytf{}!:r t� . i� M ti- �h r,: as � , • ,�.,��2L ,is � — - Z iMCI AWA IF • < - _ •�Aw MON - ION JW -- y 'is s -- I � v . ` 4' '/.yam • f lk f •�. i w R a a`b Al 'i1�iiW of� ��r+ F• ✓ +�.w``�' .+�.` . � - �d' �3�f .y .q � '•ik^' �1 � .a4Y P 'q�4r�• Y ria ! t, �� 'R� 6 T*• max-fYT e Y 41 114 1 "•r a i .t l:. i r .ted CO Ve CITY OF SALEM, MASSACHUSETTS . I BOARD OF APPEAL 120 WASHINGTON STREET♦ SALEM,MASSACHUSETTS pQ17YOP 28 P 1: Ob KIMBERLEY DRISCOLL "ISLE:978-745-9595 • FAX:978-740-9846 MAYOR CITY CLERK,%&:# CITY September 26, 2016 Decision City of Salem Board of Appeals Petition of JAMES W. LEWIS seeking an Appeal of the Decision of the Building Inspector to contest the interpretation of fence and fence height at the property of 3 LILLIAN ROAD (Map 30 Lot 30)(Rl Zoning District). A public,hearing on the above Petition was opened on June 15, 2016 pursuant to M.G.L Ch. 40A, 4 11. Public testimony was heard on that date and the public hearing was continue to September 21, 2016 and closed on that date with the following Salem Board of Appeals members present: Rebecca Curran (Chair), Peter A. Copelas (Vice-Chair),Jimmy Tsitsinos,Mike Duffy, and Tom Watkins. The Petitioner is seeking an Appeal of the Decision of the Building Inspector to contest the interpretation of fence and fence height. Statements of fact: 1. In the petition date-stamped May 24, 2016, the Petitioner requested to appeal the Decision of the Building Inspector to contest the interpretation of fence and fence height. 2. Attorney Stephen Zolotas of 133 Washington Street, Salem,MA presented the petition. 3. The petitioner, Mr. James W. Lewis, filed an appeal of the Decision of the Building Inspector. Mr. Lewis requested that the building inspector enforce the Salem Zoning Ordinance nine (9)years after a building permit was issued for the construction of a swimming pool. 4. The petitioner states that a retaining wall constructed in relation to the swimming pool needed a building permit and therefore, the statute of limitation on enforcement of other zoning matters could be done. 5. In particular,Mr. Lewis requested that the building inspector enforce the fence height requirements of the Salem Zoning ordinance due to concerns about the fence height and location installed by an abutting neighbor. 6. The location of the installed fence is a civil matter. 7. In a letter dated March 21, 2016, the City's assistant building inspector provided a zoning opinion stating that the permit for an in-ground pool was applied for and issued 5/21/2007. There is no record on-file of a request for a zoning variance or for a building permit to increase the height of the border/retaining wall above 6' feet. There is no record on-file that the City Engineer was notified of the intent to alter the grade of the land. 8. While there was no grade alteration permit applied for from the Engineering Department to alter the grade of the land,it is not within the purview of the Zoning Board to discuss a permit of the Engineering Department since it is not part of the zoning ordinance. City of Salem Board of Appeals September 26,2016 Project: 3 Lillian Road Page 2 of 2 9. In a letter dated April 29, 2016 the Building Inspector stated that he met with the neighbors and discussed the construction work done at 19 Chandler Street. Work included the installation of a pool, patio and raising of a retaining wall that was done in 2007. The Massachusetts General Law Ch.40A Section 7 states that no enforcement actions may be taken if the work was permitted and a period of six (6) years has passed. 10. It is the opinion of the Building Inspector officer that no enforcement actions may be taken as the construction work received a building permit and a period of six (6) years has passed. 11. Regarding fence height, the Salem Zoning Ordinance states the following "retaining walls, boundary walls and or fences may be built abutting the property line. The height of the retaining wall boundary walls and or fences shall be measured on the inside face of the structure on the owners side." It is the opinion of the Building Inspector that as long as the abutter's fence does not exceed six (6) feet measured from their side, there is no zoning violation. 12. The height of the raised retaining wall is approximately three and a half feet (3.5') and would not have required a building permit at the time of construction. 13. The requested relief, if granted, would allow the zoning enforcement officer to take any associated enforcement actions. 14. At the public hearing, two (2) members of the public spoke in opposition and no members of the public spoke in favor, of the petition. The Salem Board of Appeals, after careful consideration of the evidence presented at the public hearing, and after thorough review of the petition, including the application narrative and plans, makes the following findings: Findings: 1. A building permit was pulled on May 21, 2007 for the construction of the swimming pool. A building permit was not required for the construction of the 3.5' foot retaining wall. Therefore, the statute of limitation of six (6) years for any zoning enforcement action has passed. On the basis of the above statements of facts and findings, the Salem Board of Appeals voted five (5) in favor (Rebecca Curran (Chair), Peter A. Copelas (Vice-Chair),Jimmy Tsitsinos,Mike Duffy, and Tom Watkins) and none (0) opposed, to uphold the decision of the building inspector. The decision of the Building Inspector is upheld. Rebecca Curran, Chair 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 fikng 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 hearing the certificate of the City Clerk has been filed with the Essex South Registry of Deedf.