7 MALL STREET - ZBA (5) 'Q D
- 7 MALL STREET
ROBERT SOLOMON
j
�6
Q0
Tit" of �ttlem, 'Ttt55adiuscite
'
Q Paurd of Aupeal gg,
r l 127
DECISION ON THE PETITION OF ROBERT SOLOMAN REQUESTING A'
SPECIAL,:,"
PERMIT FOR THE PROPERTY LOCATED AT 7 MALL STREET (R-2)
A hearing on this petition was held May 15, 1996 with the following
Board Members present: Gary Barrett, Chairman, Nina Cohen, Albert
Hill, Joseph Ywuc and Arthur LeBrecque. Notice of the hearing was
sent to abutters and others and notices of the hearing were properly
published in the Salem Evening News in accordance with Massachusetts
General Laws Chapter 40A.
Petitioner is requesting a Special Permit to allow construction of a
second floor on an existing single story dwelling for the property
located at 7 Mall Street.
The provision of the Salem Zoning Ordinance. which is applicable to
this request for a Special Permit is Section 5-3(j ) , which provides
as follows:
Notwithstanding anything to the contrary appearing in this Ordinance,
the Board of Appeal may, in accordance with the procedure and
conditions set forth in Sections 8-6 and 9-4, grant Special Permits
for alterations and reconstruction of nonconforming structures, and
for changes, enlargement, extension or expansion of nonconforming
lots, land, structures, and uses, provided, however, that such
change, extension, enlargement or expansion shall not be
substantially more detrimental than the existing nonconforming use to
the neighborhood.
In more general terms, this Board is, when reviewing Special Permit
requests, guided by the rule that a Special Permit request may be
granted upon a finding by the Board that the grant of the Special
Permit will promote the public health, safety, convenience and
welfare of the City's inhabitants.
The Board of Appeal, after careful consideration of the evidence
presented at the hearing and after viewing the plans, makes the
following findings of fact:
1. The petitioner had been previously heard before the Board at
hearings on May 18, 1994 and June 15, 1994. An appeal of the
Board's decision was subsequently filed in Superior Court and
captioned Philip Wales v. Wendi Goldsmith st als. ' Civil Action
No. 94-1653. The matter is now before the Board on remand as a
result of an Agreement for Judgment executed by the parties and
an Order entered in the Superior Court action.
2. Petitioner purchased the property in 1992, and currently resides
at the property.
3. Petitioner intends to use the proposed addition for residential
DECISION OF THE PETITION OF ROBERT SOLOMAN REQUESTING A SPECIAL,,
PERMIT FOR THE PROPERTY LOCATED AT 7 MALL STREET (R-2 ) aY 17
page two Z7
C.: I
space for a growing family.
4. Petitioner stated that there would be no business conducted at
the 7 Mall Street address.
5. The proposed second story addition would be built on an existing
121x12' structure.
6. The existing 121x12' addition has been in existence for at least
10 years.
7. Petitioner stated there would be no windows on either the first
or second floor of the proposed new addition facing the property
owned by Philip P. Wales at 16 Williams Street. Petitioner
further advised that it was the intention to follow the now
existing roof line of the main structure for the proposed
addition and that a sunlight would be installed on the roof.
8. Petitioner further stated that despite the fact that the property
is not within a historic district there is a willingness to
submit the plans t the Historic Commission for review and comment
9. Pam, Shirley and Theodore Angelakis, 9 Mall Street, submitted a
letter in support of the Petition.
10. Nancy Farrett, 5 Mall Street submitted a letter in support of the
petition.
11. Joseph and Elizabeth Palamara, 6 Mall Street appeared and
expressed their support for the Petition.
12. Peter Farrrell, 5 Mall Street, appeared and spoke in favor of the
Petition. Mr. Farrell felt the proposed addition would improve
the neighborhood and would be another example of the Petitioner's
effort to upgrade the property and area.
13. Philip P. Wales, 16 Williams Street, an abutter, and his counsel,
Dan Casey, appeared and opposed the Petition.
14. Mr. Wales expressed a concern that the proposed addition would
"box" in his yard and effect the view from his property.
15. Mr. Wales submitted a letter dated May 15, 1996 setting forth
his opposition to the Petition.
16. A letter dated April 17, 1995 from Gail M. Sdos, 16 Williams St.
was submitted in opposition to the Petition.
On the basis of the above findings of fact, and on the evidence
presented, the Board of Appeal concludes as follows:
1. The Special Permit requested can be granted without substantial
detriment to the public good or without nullifying and substantially
derogating from the intent of the district or the purpose of the
ordinance.
2. The granting of the Special Permit requested will promote the
public health, safety, convenience and welfare of the City's
inhabitants and may be granted in harmony with the neighborhood.
Therefore, the Zoning Board of Appeal voted unanimously, 5-0 to
grant the Special Permit requested, subject to the following
conditions:
' DECISION OF THE FETITION OF ROBERT SOLOMAN REQUEST-?:G A SPECIAL
PERMIT FOR THE PROPERTY LOCATED AT 7 MALL STREET (R-2 ) .
page three u''
1 . Petitioner shall comply with all City and State statu&,17
ordinances, codes and regulations. 27 Fil '9�
2. All construction shall be done as per the plans and dimLh8i9as rr� l SS
submitted.
3. All requirements of the Salem Fire Department relative to smoke
and fire safety are to be strictly adhered to.
4. A Certificate of Occupancy is to be obtained.
5. Petitioner shall obtain a Building Permit prior to beginning any
construction.
6. Exterior finishes of new construction shall be in harmony with
the existing structure.
7. Petitioner, in accord with his agreement to do so, shall submit
the plans for the proposed addition to the Historic Commission
for review and comment as to the exterior finishes so they will
be in harmony with the existing neighborhood.
8. There shall not be any windows installed on the 1st or 2nd floor
of the proposed new addition on the vertical wall facing the
property owned by Philip P. Wales at 16 Williams Street.
SPECIAL PERMIT GRANTED
MAY 15, 1996
Gary Barrett
Member, 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 MGL Chapter 40A and shall be filed within 20 days after the
. date of filing of this decision in the office of the City Clerk.
Pursuant to MGL Chapter 40A, Section 11, the Variance or Special
Permit granted herein shall not take effect until a copy of the
decision, bearing the certification of the City Clerk that 20 days
have elapsed and no appeal has been filed, or that, if such appeal
has been filed, that it has been dismissed or denied is recorded in
the South Essex Registry or Deeds and indexed under the name of the
owner of record or is recorded and noted on the owner's Certificate
of Title.
Board of Appeal
w
oftt1Pm, ttsstttfjusp##s
`�Q �6nttr� ofurtt! x'79 314 PH
CITY 0p
DECISION ON THE PETITION OF ROBERT SOLOMON REQUESTING A C1CRKISO"F�CAS;
SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 7 MALL STREET
A hearing on this petition was held April 15, 1998 and continued
until June 17, 1998 with the following Board Members present: Nina
Cohen, Chairman, Richard Dionne, Paul Valaskagis, Michael Ward and
Ronald Harrison. Notice of the hearing was sent to abutters and
others and notices of the hearing were properly published in the
Salem Evening News in accordance with Massachusetts General Laws
Chapter 40A.
Petitioner is requesting a Special Permit to allow the addition of a
second story on an existing single-story addition and address the
questions of the Honorable Nancy Merrick, Justice Essex Superior
Court (Court Order 10/31/97) .
The provision of the Salem Zoning Ordinance which is applicable to
this request for a Special Permit is Section 5-3(j ) , which provides
as follows:
Notwithstanding anything to the contrary appearing in this Ordinance,
the Board of Appeal may, in accordance with the procedure and
conditions set forth in Sections 8-6 and 9-4 , grant Special Permits
for alterations and reconstruction of nonconforming structures, and
for changes, enlargement, extension or expansion of nonconforming
lots , land, structures, and uses, provided, however, that such
change, extension, enlargement or expansion shall not be
substantially more detrimental than the existing nonconforming use to
the neighborhood.
In more general terms, this Board is, when reviewing Special Permit
requests, guided by the rule that a Special Permit request may be
granted upon a finding by the Board that the grant of the Special
Permit will promote the public health, safety, convenience and
welfare of the City's inhabitants .
The Board of Appeal, after careful consideration of the evidence
presented at the hearing and after viewing the plans, makes the
following findings of fact:
1 . Petitioner seeks a special permit to build a second story
addition onto an existing nonconformin structure at 7 Mall Street
in Salem to be used for residential purposes .
2 . Petitioner's request has twice been appealed and twice remanded to
this Board. After it was initially heard by the Board on hay 18,
1994 and June 15 , 1994, an appeal of the Board's decision was
filed in Superior Court, captioned Philip Wales v. Wendi Goldsmith
et als. , C.A. NO. 94-1653. On remand, petitioner's request was
granted in a Zoning Board decision dated May 17, 1996.
DECISION OF THE PETITION OF ROBERT SOLOMON REQUESTING A SPECIAL
PERMIT FOR THE PROPERTY LOCATED AT 7 MALL STREET
page two jUM 19
3. An appeal was taken from the May 11, 1996 decision, caption Ik ;
Philip Wales V. Robert Solomon, et al.s, C.A. No 9,_11
S4,,,present hearing is held in compliance with a Superior Courti ,,
O�fin that case, issued October 31, 1997. I(
4 . Petitioner purchased the property at 7 Mall in 1992. The residence
at the time of the purchase comprised a main two-story building
and attached one-story ell, used as an auxillary entrance.
5. The building and auxillary structure at 7 Mall Street is a
nonconforming structure within the meaning of the Salem Zoning
Ordinance because it pre-existed the enactment of the ordinance
and would not meet the requirements of the current law if it were
to be constructed today.
On the basis of the above findings of fact, and the evidence
presented, the Board of Appeal concludes as follows :
1 . The Special Permit requested can be granted without substantial
detriment to the public good or without nullifying and substantially
derogating from the intent of the district or the purpose of the
ordinance.
2 . The granting of the Special Permit requested will promote the
public health, safety, convenience and welfare of the City's
inhabitants and may be granted in harmony with the neighborhood.
.
Therefore, the Zoning Board of Appeal voted unanimously, 5-0 to
grant the Special Permit requested.
SPECIAL PERMIT GRANTED
June 20 , 1995
Nina Cohen, Chairman
Board of .Appeal
A COPY OF THIS DECISION HAS BEEN FILED I;ITH THE PLANNING BOARD AND
THE CITY CLERK
Appeal from this decision, if any, shall be made pursuant to Section
17 of MGL Chapter 40A and shall be filed within 20 days after the
date of filing of this decision in the office of the City Clerk.
Pursuant to MGL Chapter 40A, Section 11, the Variance or Special
Permit granted herein shall not take effect until a copy of the
decision, bearing the certification of the City Clerk that 20 days
have elapsed and no appeal has been filed, or that , if such appeal
has been filed, that it has been dismissed or denied is recorded in
the South Essex Registry or Deeds and indexed under the name of the
owner of record or is recorded and noted on the owner's Certificate
of Title
i
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS SUPERIOR COURT DEPT.
OF THE TRIAL COURT
C. A. No. 96-1142A
PHILIP WALES,
Plaintiff
-v-
ROBERT SOLOMON, and PLAINTIFF'S MEMO SUPPORTING HIS
GARY BARRETT, NINA COHEN, MOTION FOR SUMMARY JUDGMENT
ALBERT HILL, JOSEPH YWUK
and ARTHUR LEBRECQUE, as
they constitute the
Board of Appeals of the
City of Salem,
Defendants
STATEMENT OF THE CASE
This action was commenced on June 5, 1996, pursuant to G.L. Chapter 40A, §17
for judicial review of a decision of the Salem Zoning Board of Appeals, (hereinafter the
"Board.") The decision was filed with the City Clerk for the City of Salem on May 17, 1996
(hereinafter referred to as "the decision"). The decision granted a Special Permit to the
defendant, Robert Solomon, as to real property located at 7 Mall Street, Salem, Essex
County, Massachusetts (hereinafter referred to as "the Locus"). The parties engaged in
discovery and the case is ripe to be decided on the merits in the context of a summary
judgment motion as there is no genuine issue of material fact and there is no reasonable
likelihood that Defendants will prevail if this matter were tried.
Law OEEice of
Carl D. Goodman
17 Front Street
Salem, M 01970
(508)745-6006 1
STANDARD FOR SUMMARY JUDGMENT
When considering a motion for summary judgment, this Court must determine only
"whether there is an issue of material fact." Mass. R. Civ. P. 56. Further, when this Court
considers the pleadings and other documents previously filed in this case "the inferences
to be drawn from the underlying facts contained in such material must be viewed in the
light most favorable to the party opposing the motion." Hub Associates v. Goode, 357
Mass. 449, 451, 258 N.E.2d 733, 735, (1970); (quoting United States v. Diebold. Inc., 369
U.S. 654, 655, (1964)). The moving party is entitled to summary judgment if he
demonstrates, by reference to pleadings, affidavits and other papers on record, that the
nonmoving party who has the burden of proof at trial has no reasonable expectation of
proving an essential element of the claim or defense. Kourouvacilis v. General Motors
Corp., 410 Mass. 706, 575 N.E.2d 734 (1991). Here, the pleadings and other documents
filed with the Court do not prove that Defendants have a genuine defense to this action
and there are no genuine issues of material facts which require adjudication nor is there a
reasonable likelihood that the Defendant will be able to prove his defense. Therefore,
plaintiffs motion for summary judgment should be granted as Plaintiff is entitled to
judgment as a matter of law.
STATEMENT OF FACTS
On or about April 3, 1996, the defendant, Robert Solomon, filed a petition with the
Board seeking a special permit to allow construction of a second story on an existing
single story addition at the Locus. (A copy of the petition is annexed hereto as Exhibit A.)
Thereafter, a hearing was held on May 15, 1996 and at the conclusion of the hearing, the
Board voted to grant a special permit as requested by the defendant, Robert Solomon. (A
copy of Board decision dated May 15, 1996 is annexed hereto as Exhibit B.)
Law Office of
Carl D. Goodman
17 Front Street
Salem, M 01970
(508)745-6006 2
1
The Plaintiffs complaint alleges that the decision of the Zoning Board is in excess
of its authority, as provided in G.L.c. 40 §17. The findings set forth in the decision and the
reasons for the findings set forth in the decision are insufficient in law to warrant the
granting of the special permit. The decision grants a special permit to expand an existing
structure. The decision fails to make any findings of fact that the existing structure is
currently conforming or was lawful when built and therefore, the Board's decision exceeds
its authority. Additionally, the decision carefully avoids making any finding that the
structure is a legal nonconforming structure. The decision does make a finding that the
proposed addition would be built on an existing structure and that the existing structure
has been in existence for at least 10 years but does not point to any facts or make any
findings, whether supported by facts or not, that the existing structure is nonconforming.
The Board reliance on the 10 year rule is misplaced as consideration of the same is
irrelevant to consideration of a special permit.
The 10 year rule relates to enforcement of zoning ordinances and not to granting
special permits . Pursuant to M.G.L. c. 40A §7, no action may be taken to compel the
removal, alteration, or relocation because of any zoning violation unless the action is
commenced with 10 years after the commencement of the violation. §7 also provides that
if property has been improved, pursuant to a building permit, no action may be taken to
compel the alteration, removal or relocation, unless that action is commenced within six
years. §7 only limits enforcement as to existing zoning violations, but does not cure the
underlying illegality or establish that a structure is nonconforming merely because it has
been in existence for 10 years. The purpose of the 10 year rule is analogous to a statute
of limitations, that is, it protects owners of structures which may violate zoning ordinances
from being compelled to remove, alter or relocate the structure because of a zoning
violation after the passage of 10 years.
However, the 10 year rule does nothing to elevate the structures status from an
Law Office of
Carl D. Goodman
17 Front Street -
Salem, MA 01970
(508)745-6006 3
illegal structure (i.e. a structure built without the benefit of a building permit) to either
conforming or nonconforming. Further, the fact that the structure may have been in
existence for more than 10 years does nothing to elevate its status from illegal to con-
forming or nonconforming.
In this case, the structure does not merely violate the zoning ordinances for which
the Board may grant some relief, rather, the structure in this case is illegal as it was built
without the benefit of a building permit. (See Street Card annexed hereto as Exhibit C,
which documents all permits pulled since 1891 at the Locus.)
The Board is authorized to grant special permits for alterations and reconstruction
of nonconforming structures, and changes, enlargement, extension or expansion of a
nonconforming lots, land, structures, and uses, provided, however, that such change,
extension, enlargement or expansion shall not be substantially more detrimental that the
existing nonconforming use to the neighborhood. City of Salem Zoning Ordinance §5.30),
a copy of which is annexed hereto as Exhibit D.
The burden of proof is on the party claiming the statutory protection to establish that
a structure is a nonconforming prior use and thus entitled to statutory protection from
current municipal zoning ordinances. Stow v. Pugsley, 349 Mass. 329 (1965); Hall v.
Zoning Bd. of Appeals, 28 Mass. App. 249 (1990); Tamerlane Realty Trust v. Board of
Appeals, 23 Mass. App. 450 (1987).
Therefore, there must be facts upon which findings are based that the structure is
conforming or that the structure is nonconforming and the expansion of the nonconforming
structure is not substantially more detrimental to the existing neighborhood than that
existing nonconformity. A conforming structure is one which currently complies in all
respects to the current zoning ordinances. A nonconforming structure is one which at the
time it was built, the structure and/or use complied with the then existing zoning
ordinances but since then the zoning ordinances have changed so that the structure
Law Office of
Carl D. Goodman
17 Front Street
Salem, MA 01990
(500)745-6006 4
and/or use no longer complies with the zoning ordinance. Derby Refining Co. v. Chelsea,
407 Mass. 703, 555 N.E.2d 534 (1990); Rockwood v. Snow Inn Corp., 409 Mass. 361,
566 N.E.2d 609 (1991).
If the Board finds that the structure is nonconforming, then the Board must find that
the expansion of the structure is not substantially more detrimental to the existing
neighborhood than the existing nonconformity. M.G.L. c. 40A §6; See also, Salem Zoning
Ordinance 5.3(j) annexed hereto as Exhibit D.
The Board's decision fatally fails to make any findings and no facts were presented
with respect to whether the structure conforms to existing Zoning Ordinances or is a
nonconforming structure. The Defendant cannot prove that the existing addition conforms
to the zoning ordinances because it was built without the benefit of a building permit.
Defendant cannot prove that the existing addition is a nonconforming structure because it
was built without the benefit of a building permit. Therefore, Defendant is not reasonably
likely to be able to carry his burden of proof at trial, and therefore, Plaintiff is entitles to
summary judgment.
The Board's decision actually allows expansion of an illegal structure. The findings
of the Board are wholly insufficient as a matter of law, and therefore, Plaintiff is entitled to
judgment. The Board's findings merely beg the question of whether the structure is a
lawful nonconforming use. Nothing in c. 40A §7 or in any other statute renders an illegal
structure lawful or conforming or elevates its status to nonconforming. Clearly, the Board
does not have the power to expand illegal uses merely by labeling the same as a
nonconforming use nor by ignoring its current status. The finding of fact by the Board that
the structure existed for ten years without any additional or subsidiary finding that the
structure was lawful when built can only have relevance in the context of an action to
compel the removal of the existing structure. The decision contains no findings that are
sufficient from which a conclusion can be drawn that the existing structure was either
Law Office of
Carl D. Goodman
17 Front Street
Salem, M 01970
(508)745-6006 5
currently in accordance with the local zoning ordinance or that the existing structure was
lawful when built and currently has the status of nonconforming as a result of subsequent
changes to local zoning.
There is nothing in the Zoning ordinance nor in c. 40A that authorizes the Board by
special permit to expand an illegal structure. In the absence of affirmative evidence that
the structure is currently lawful or had achieved lawful nonconforming status, the local
Board necessarily exceeded its authority in allowing the expansion of an illegal structure
by special permit, and therefore, Plaintiff is entitled to summary judgment.
Additionally, Plaintiff in his Request for Documents directed to Defendant Solomon
requested Solomon to produce all documents he intended to rely upon to prove that the
structure presently qualifies as a non-conforming structure under the Salem Zoning
Ordinance. Defendant responded "None at this time." (See Response of the Defendant
Solomon to Plaintiffs Request for Documents annexed hereto as Exhibit E.)
In order to carry his burden of proof, Defendant must prove that the structure was
lawful and non-conforming when built. Accordingly, Defendant must necessarily rely,
inter alia, on the building permit. Since Defendant has the burden of proof on this issue
and he does not intend to nor can he rely on any documents to prove that structure is
lawfully non-conforming, the Defendant can not sustain his burden of proof. Accordingly,
Plaintiffs motion for summary judgment should be granted as he is entitled to judgment as
a matter of law.
The Board's decision actually allows expansion of an illegal structure, and
therefore necessarily exceeds its authority. However, the Board is not authorized to grant
special permits for alterations or changes to illegal structures. The decision allows the
expansion of an illegal structure as there was no building permit pulled when the existing
structure, an addition, was constructed.
Law Office of
Carl D. Goodman
17 Front Street
Salem, M 01970
(508)745-6006
The decision is unwarranted and beyond the authority of the Board as it is contrary
to the provisions of G.L. 40A and the provisions of the Zoning Ordinance of the City of
Salem as the decision allows the expansion of an illegal structure and is otherwise
contrary to law, and therefore, Plaintiffs motion for summary judgment should be granted
as he is entitled to judgment as a matter of law.
DEFENDANT'S ONLY DEFENSE HAS BEEN ADJUDICATED
Plaintiff anticipates that Defendant Solomon will attempt once again to rely upon an
Agreement for Judgment which Plaintiff entered into in a prior case'. Defendant Solomon
filed a Motion to Dismiss, in this case, in which the sole basis for dismissal was the Agree-
ment for Judgment. That motion was heard before this Court and denied on September
17, 1996 as Judge Richard E. Welch determined that Agreement for Judgment was unen-
forceable. (A copy of which is annexed hereto as Exhibit F.) After the Court denied
Defendant's motion, he filed a notice of appeal with this Court purporting to "appeal" this
Court's order on his motion to dismiss. Thereafter, Defendant Solomon took no action with
regard to the "appeal." Defendant Solomon's attempt to appeal the Court's order on his
motion to dismiss was fatally defective as a party may not appeal an interlocutory order to
the full Court. Even an order which terminates the litigation as to some but not all the
issues is generally an interlocutory order and the appropriate review is pursuant to G.L. c.
231 §118.
The Court's ruling on Defendant's motion was clearly interlocutory in nature as is
was not a decree or act of the trial court which finally adjudicated the rights of the parties
affected by the judgment. Mass. R. Civ. P. 54(a). Additionally, if the Court's order on
1 The prior case as Philip Wales v. Wendy Goldsmith, Essex
Superior Court Docket# 94-1653.
Law Office of
Carl D. Goodman
17 Front Street
Salem, M 01970
(508)745-6006 ]
defendant's motion was a final order or judgment of the Court the clerk would have made
such entry on the docket. No such entry was made on the docket relative to this case.
Defendant did not adhere to the appropriate procedure relative to properly
preserving his interlocutory appeal as he merely filed a notice of appeal and did nothing
thereafter. Accordingly, defendant has relinquished his rights to pursue this issue further
until final judgment has entered. Any attempt by defendant to present additional evidence
of any kind relative to the Agreement should be stricken from the record as it is merely an
inappropriate effort to cure a defect in his previous presentation of the merits of his motion
to dismiss. If Defendant desired to present additional evidence, in the form of affidavits or
otherwise, he should have done so prior to filing and presenting his motion. Accordingly,
the issue relative to the Agreement for Judgment has been decided in this case and
additional evidence thereon should not be further considered by this Court. Additionally,
Defendant never filed an answer and has not presented any defenses other than the
Agreement. Since the Agreement for Judgment is Defendant Solomon's only substantive
defense and that matter has been ruled on, Defendant has no reasonable likelihood of
proving his defense, and therefore, Plaintiff is entitled to judgment as a matter of law.
CONCLUSION
Based upon the foregoing reasons, there is no genuine issue of material fact nor is
defendant reasonably likely to establish any credible defense, and therefore, Plaintiff is
entitled to judgment as a matter of law.
Law Office of
Carl D. Goodman
17 Front Street
Salem, M 01970
(508)745-6006 a
Philip Wales,
THE PLAINTIFF
By His Attorney
A OR EY JACQUELINE VOSS LEES
IT Front Street
Salem, MA 01970
Telephone: (508) 745-6006
BBO #553360
Dated: September 5, 1997.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the within document has been served on the
Defendants by causing the same to forwarded this day, to:
VIA HAND DELIVERY (original and one copy)
Nicholas DeCoulas, Esq. (for Solomon) 248 Andover Street, Peabody, MA 01960
VIA FIRST CLASS MAIL POSTAGE PREPAID TO THE FOLLOWING DEFENDANTS
(copies)
Gary Barrett, 7 Patton Road, Salem, Massachusetts 01970.
Nina Cohen, 22 Chestnut Street, Salem, Massachusetts 01970.
Albert Hill, 4 Larkin Lane, Salem, Massachusetts 01970.
Joseph Ywuk, 86 Ord Street, Salem, Massachusetts 01970.
Arthur LeBrecque, 11 Hazel Street, Salem, Massachusetts 0_1970.
Dated: September 5, 1997
JA LINE VOSS LEES.
fiwplwales.sum
Law Office of
Carl D. Goodman
17 Front Street
Salem, MA 01970
(508)745-6006 9
APPEAL CASE NO. . . . . . . . . . . . . .
3 ' Tifc of '4mlrm' Alas snrfruspits
Y�IIt2r�I D'f _�1�PIIl
TO THE BOARD OF APPEAL:
The Undersigned
7represe t th//}}��t he/she is/ re the owners of a certain
parcel of land
Located at: . . . . . . . . . 0.•lF • • - - • - • - - - - -Street; Zoning District. . . : � . . . . ... . . . ;
and said parcel is affected by Section(s) . . . . . . . . . . . . . . . . . . . . . . of the Massachusetts
State Building Code.
Plans describing the work proposed have been submitted to the Inspector of Buildings
in accordance with Section I% A. 1 of the Zoning Ordinance.
77
The Application for Permit was denied by the Inspector of Buildings E-0r th- follWWing
00 G ?
reason(s):
v - CUM
KJS
_ .21
The Undersigned hereby petitions the Board of Appeal to vary the terms' f the Salem
Zoning Ordinance and/or the Building Code and order the Inspector of Bui'ldh%s to
approve the application fee permit to build as filed, as the enforcement of said
Zoning By-Laws and Building Code would involve practical difficulty or unnecessary
hardship to the Undersigned and relief may be granted without substantially derogating
from the intent and purpose of the Zoning Ordinance and Building Code for the follow-
ing reasons: -
A TRUE COPY ATTEST Owner. 6 1 .............
Address.. v
',_ -_�► 1 7 ilal( S'i—.
�ow�Ns! _ 1L2 5 .............
C1TVCLE8'K:_, Telephone....../.. .............
SUCK MAS&
Petitioner.
/ Address........... ...................
Date...
Telephone .....................
Byx........................
Three copies of the application amat. be filed:with the Secretary of the Boar+&of Appeal
with a cheek, for advertising in the aaoomt.of $............. four weeks pr3ac to thw
meeting. of tha-Board of Appeal. Chock papblg- to. the Sal® Evening Nwms
(Citu of Salem, CT- as5arbusetts
Paura of '' 'Upeal 1
94
r J J J
27
f�
DECISION ON THE PETITION OF ROBERT SOLOMAN REQUESTING A SPECIAL,:.-
PERMIT FOR THE PROPERTY LOCATED AT 7 MALL STREET (R-2)
A hearing on this-petition was held May 15, 1996 with the following
Board Members present: Gary Barrett, Chairman, Nina Cohen, Albert
Hill, Joseph Ywuc and Arthur LeBrecque. -Notice of the hearing was
sent to abutters and others and notices of the hearing were properly
published in the Salem Evening News in accordance with Massachusetts
General Laws Chapter 40A.
Petitioner is requesting a Special Permit to allow construction of a
second floor on an existing single story dwelling for the property
located at 7 Mall Street.
The provision of the Salem Zoning Ordinance which is applicable to
this request for a Special Permit is Section 5-3(j ) , which provides
as follows:
Notwithstanding anything to the contrary appearing in this Ordinance,-_
the Board of Appeal may, in accordance with the procedure and
conditions set forth in Sections 8-6 and 9-4, grant Special Permits
. for alterations and reconstruction of nonconforming structures, and
for changes, enlargement, extension or expansion of nonconforming
lots, land, structures, and uses, provided, however, that such
change, extension, enlargement or expansion shall not be
substantially more detrimental than the existing nonconforming use to
the neighborhood.
In more general terms, this Board is, when reviewing Special Permit
requests, guided by the rule that a Special Permit request may be
granted upon a finding by the Board that the grant of the Special
Permit will promote the public health, safety, convenience and
welfare of the City's inhabitants .
The Board of Appeal, after careful consideration of the evidence
presented at the hearing and after viewing the plans, makes the
following findings of fact:
1. The petitioner had been previously heard before the Board at
hearings on May 18, 1994 and June 15, 1994. An appeal of the
Board's decision was subsequently filed in Superior Court and
captioned Philip Wales v. Wendi Goldsmith st als. ' Civil Action
No. 94-1653. The matter is now before the Board on remand as a
result of an Agreement for Judgment executed by the parties and
an Order entered in the Superior Court action.
2. Petitioner purchased the property in 1992, and currently resides
at the property.
3. Petitioner intends to use the proposed addition for residential
f
DECISION OF THE PETITION OF ROBERT SOLOMAN REQUESTING A SPECIA
PERMIT FOR THE PROPERTY LOCATED AT 7 MALL STREET (R-2 ) �,Jr �]
page two 27 t
space for a growing family. C
4. Petitioner stated that there would be no business conducted at
the 7 Mall Street address.
5. The proposed second story addition would be built on an existing
121x12' structure.
6. The existing 12'x12' addition has been in existence for at least
10 years.
7. Petitioner stated there would be no windows on either the first
or second floor of the proposed new addition facing the property
owned by Philip P. Wales at 16 Williams Street. Petitioner
further advised that it was the intention to follow the now
existing roof line of the main structure for the proposed
addition and that a sunlight would be installed on the roof.
8. Petitioner further stated that despite the fact that the property
is not within a historic district there is a willingness to
submit the plans t the Historic Commission for review and comment
9. Pam, Shirley and Theodore Angelakis, 9 Mall Street, submitted a
letter in support of the Petition.
10. Nancy Farrett, 5 Mall Street submitted a letter in support of the
petition.
11. Joseph and Elizabeth Palamara, 6 Mall Street appeared and
expressed their support for the Petition.
12. Peter Farrrell, 5 Mall Street, appeared and spoke in favor of the
Petition. Mr. Farrell felt the proposed addition would improve
the neighborhood and would be another example of the Petitioner's
effort to upgrade the property and area.
13. Philip P. Wales, 16 Williams Street, an abutter, and his counsel,
Dan Casey, appeared and opposed the Petition.
14. Mr. Wales expressed a concern that the proposed addition would
"box" in his yard and effect the view from his property.
15. Mr. Wales submitted a letter dated May 15, 1996 setting forth
his opposition to the Petition.
16. A letter dated April 17, 1995 from Gail M. Sdos, 16 Williams St.
was submitted in opposition to the Petition.
On the basis of the above findings of fact, and on the evidence
presented, the Board of Appeal concludes as follows:
1. The Special Permit requested can be granted without substantial
detriment to the public good or without nullifying and substantially
derogating from the intent of the district or the purpose of the
ordinance.
2. The granting of the Special Permit requested will promote the
public health, safety, convenience and welfare of the City's
inhabitants and may be granted in harmony with the neighborhood.
Therefore, the Zoning Board of Appeal voted unanimously, 5-0 to
grant the Special Permit requested, subject to the following
conditions:
DECISION OF THE PETITION OF ROBERT SOLOMAN REQUESTI':G A SPECIAL
t PERMIT FOR THE PROPERTY LOCATED AT 7 MALL STREET (R-2) .
page three uu''��
I. Petitioner shall comply with all City and State statuugq,�7 ' 27 F/i :JO
ordinances, codes and regulations.
Ci iY
2. All construction shall be done as per the plans and dimE t;A;glas' j r '4ASS
submitted. 0I I Ict:
3. All requirements of the Salem Fire Department relative to smoke
and fire safety are to be strictly adhered to.
4. A Certificate of Occupancy is to be obtained.
5. Petitioner shall obtain a Building Permit prior to beginning any
construction.
6. Exterior finishes of new construction shall be in harmony with
the existing structure.
7. Petitioner, in accord with his agreement to do so, shall submit
the plans for the proposed addition to the Historic Commission
for review and comment as to the exterior finishes so they will
be in harmony with the existing neighborhood.
8. There shall not be any windows installed on the 1st or 2nd floor
of the proposed new addition on the vertical wall facing the
property owned by Philip P. Wales at 16 Williams Street.
SPECIAL PERMIT GRANTED
MAY 15, 1996
Gary Barrett
Member, 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 MGL Chapter 40A and shall be filed within 20 days after the
date of filing of this decision in the office of the City Clerk.
Pursuant to MGL Chapter 40A, Section 11, the Variance or Special
Permit granted herein shall not take effect until a copy of the
decision, bearing the certification of the City Clerk that 20 days
have elapsed and no appeal has been filed, or that, if such appeal
has been filed, that it has been dismissed or denied is recorded in
the South Essex Registry or Deeds and indexed under the name of the
owner of record or is recorded and noted on the owner's Certificate
of Title.
Board of Appeal
I I LOCATION
DAT: O/ ylRMlf PERMIT Ne. -0WNIR.
5/25/18911 113 B.A. TOURL•T 7 MALL STRLI:P
MATERIAL DIMENSIONS No. Of STORIES IN..Of FAMILIES I WARD
COST
i I STRUCTURE I ,I
DWELLING WOOD FRAME 30'X90' 2
Bjj
UILDER :: s
r.'
Ii "COPIED ALL INFO.FROM ORIGINAL CARD 8/26/92
I'I I, If 10/17/86 1!860 Install
burning stove, cost $600. fee $20. (OWNER - Charles Flynn)
i
INSPECTED & APPROVED BY ED. PA4UIN 10/29/66
8/26/92 1!907-92 REBUILDING OF SHED ROOF�REAR OF HOUSE, COST $2,000. fee .d
(owner - James A. Bailey)
-----------------------
Inspected & 1, pproved By David llarris 8/27/92 11407-92
BOARD OF APPEAL; 6/15/94: —GRANTED - Special Permit to allow .a second story to be construct.
on existing single story addition. Wendi Goldsmith, 7 Mall St. . 741-4254
BOARD. OF APPEAL: 4/19/95 - ,WITHDRAWN - Special Permit to extend non-conforming use of proper
r
1'13ut cony
XL
SALL•h4, 6i ASS,
II
'BOARD OF APPEAL: 5/15/96 - GRANTED - SPECIAL PERMIT to allow construction of a second
floor on an existing single family dwelling. (Robert Soloman) '
5/15/96 Board of Appeal decision was appeled on 6/6/96
c
I
r
USE REGULATIONS SALEM ZONING ORDINANCE Art.V, § 5-3
fumes, noise, vibration, traffic conges- or residential units built under the jurisdiction of
tion or other nuisance; and the Salem Housing Authority and financed by ei-
d. Are compatible with adjacent nonin- then the U.S. Public Housing Administration
` dustrial uses. and/or the Commonwealth of Massachusetts De-
partment of Commerce-Division of Public Housing
(2) All special permit uses for B-2 and B•4 Dis- will be permitted in accordance with the provi- III
tricts, subject to restrictions specified for
such uses.However, special permit uses for Bions of the special permit use requirements.
i
R-C,R-1, R-2, R-3 and B-1 Districts shall be (j) Extension of nonconformity.Notwithstanding
j ,
prohibited. anything to the contrary appearing in this ordi-
3) Schedule of prohibited uses in industrial nance, the board of appeals may, in accordance t
with the procedures and conditions set forth in
districts: sections 8-6 and 9-4 herein, grant special permits
a. Acid manufacture. for alterations and reconstruction of noncon-
b. Cement, lime, gypsum or plaster of forming structures)and for change, enlargement,
r paris manufacture. extension or expansion of nonconforming lots,
C. Production of chlorine or similar nox- land,structures and uses,provided,however,that
u ious gases. such change, extension, enlargement or expan-
d. Distillation of bones. sion shall not be substantially more detrimental t
e. Drop-forge industries manufacturing than the existing nonconforming use to the neigh-
forging with power hammers. borhood, nor shall this paragraph apply to bill-
f. Manufacture or storage of explosives '
g xp boards, signs or other advertising devices.
in bulk quantities. r
g. Fertilizer manufacture. (k) Agriculture.No special permit for the use at
land for the rim purpose of agriculture, her-
h. Garbage, offal, or dead animal re
duc• P P
tion or dumping. ticulture or floriculture shall be required,nor shall
i. Glue manufacture.
such a permit be needed for the expansion or re-
j. Hair manufacture. construction of existing structures thereon for such g
k: Petroleum refining. uses, except that all such activities are limited to I
1. Processing of sauerkraut, vinegar or parcels of more than five (5) acres in areas not
yeast. zoned for agriculture,horticulture or floriculture.
in. Rendering or refining of fats or oils. (
1)Smelting of tin,copper,zinc or iron ore, (1) Condominium and cooperative conversion.
including blast furnace or blooming (1) The conversion of an existing building or
t mill. structure previously or presently used for
o. Stockyard or feeding pen. rental housing of any type, kind or char-
_
P. Slaughter of animals,not including the acter into a cooperative or condominium
" ' '. killing of Cowl. will be allowed if permission of the board of
q. One-family, two-family and multi- appeals is obtained in accordance with the
family residential units. procedures and conditions set forth in sec-
` r. Swimming pools. tion 9-4 hereof, provided, however, that all
., s. Open air motion picture theaters. other provisions P g
of this zoning ordinance
' t. All special permit uses for R-C, R-1, shall apply relating to use regulations,den-
R-2, R-3 and B-1 Districts. sity regulations and supplemental regula-
tions,and further provided that there shall
li) A-IDistrict. Thefollowingarespecialpermit be compliance with all applicable provi-
uses in the amusement district: Special permit sions of Massachusetts General Laws,
'> uses for B-2 Districts, sub ect to the restrictions Chapter 183A, as it may be from time to
x ` d s pecified for such uses. Specifically excluded from time amended.Nothing herein shall be con-
l2,. '
t' this district are all single-family, two-family and strued to prevent the conversion of existing
'+`r '' multifamily dwellings. However, motels, hotels, buildings or structures not previously or
�Y
T
21 C
�y �r
a�
i p S
• Y
6. The minutes, transcripts, notes, attendance list or any
other documents pertaining to any meetings you have attended
concerning the project, other than public hearings held by a
governmental Board of the City of Salem.
Those documents are available at the office of the
Zoning Board of Appeals.
7 . All building permits, plans, diagrams, sketches or
other documents that in any way relate to any exterior
construction, alterations or modifications performed on the
premises or to the structures at any time up to and
including the date upon which the subject Petition was
filed.
The request is irrelevant.
8 . All documents that relate in any way to the compliance
status of the premises and the 'structures with the Zoning
Ordinance of the City of Salem.
The request is irrelevant.
9. All documents that defendant (s) intend to rely upon to
establish that the structure (s) qualify presently s lawful
non-conforming structures under the Zoning Ordinance of the
City of Salem.
None at this time.
10 . All documents which you intend to introduce at the
trial of this matter.
The entire docket in the case of 10 . All documents
which you intend to introduce at the trial of this matter.
The entire docket in the case of Philip Wales v. Wendi
Goldsmith, et al. , Essex County Superior Court Docket No.
94-1653, which is a public record.
2
L
�( l COMMONWEALTH OF MASSACHUSETTS
_N ESSEX, SS . SUPERIOR COURT
C� NO. 96-1142-A
v PHILIP WALES, Plaintiff * /
J
V.
* I�OTICF(IF 11EAR1NG
eir"'g,ments
ROBERT SOLOMON, AND GARY BARRETT, * superiort i 6°nr.rub ionyAIt-Essc*Supe�or`Courrh34 Federal
NINA COHEN, ALBERT HILL, JOSEPH /r M.
* Salem.MA on f — .J..presiding.
t YWUK AND ARTHUR LEBREQUE AS THEY * WILLNQTBEGRANTED.
�p CONSTITUTE THE MEMBERS OF THE * ALTERNATIVEDATE
y BOARD OF APPEALS OF THE CITY
OF SALEM, Defendants * ^i
hp � '
W MOTION OF DEFENDANT, ROBERT SOLOMON, TO DISMISS COMPLAINT
Cho The defendant, Robert Solomon, moves the Court to
dismiss this action on the ground that the plaintiff entered
p� into an Agreement for Judgment in the action of Philip Wales
\ v. Wendi Goldsmith.Wend et al . , Essex County Superior Court
� Docket No. 94-1653 , a copy of which is attached hereto and
expressly made a part hereof, whereby the plaintiff waived
all rights of further appeal with respect to the final
decision of the Salem Zoning Board of Appeals after it was
remanded to the Zoning Board of Appeals pursuant to the
LAgreement for Judgment and as a result of that Agreement for
Judgment, the plaintiff does not have any authority to
institute or maintain this action.
Lw L
'( Nichola J. Decoulos
S BBO #117760
DECOULOS & DECOULOS
Attorney for Defendant,
Y Robert Solomon
248 Andover Street
11aa, Peabody, MA 01960
Tel . (508) 532-1020
Ilk ` June 19 , 1996
1 vc`US fO" /`.c 'ccJ/ `--+e'-d � / ` �•'f� [%.1y
/7z- Lc s2C /
Se d GLtjc c� /1,7-74
/ ;•e=� b y i�<L �j
154
GUCc-
9
72;
17
;�j .yc C .f��f r?Lt S' _,�.,yc/Jj/ .S' �o S`czifc�(//U�'✓ / _-c.z �✓-L�' s%[.cC<�-/ ��< l
April 10, 1998
Board of Appeals
Building Department
One Salem Green
Salem MA 01970
Dear Board of Appeals,
This letter concerns the April 15 hearing on the petition submitted by Robert Solomon of 7 Mall Street. As
I live six feet away from this property and the proposed addition,I have grave concerns as to it's height
and how much light it will block. I oppose such an addition and am disturbed that such an addition could
be allowed.
I am a designer by training and am a partner with Gensler,the world's largest architectural and design firm.
I was attracted to Salem for it's historical quality and architectural richness. In general,I respect the
purpose of building ordinances an regulations as they relate to maintaining the quality of our historic
neighborhoods. It is my understanding that the existing addition on the Solomon property is unlawful to
begin with. A second story to this addition would block the natural light my backyard receives,and
forever compromise the historical and spatial qualities of Mr.Wales'proper ty.
am able to attend the hearing but ask that my concerns be given due consideration in your decision.
---Respe tfull yo s
i
Christine E.Ruffley
16 Williams Street
Salem,MA 01970
LAW OFFICE OF CARL D. GOODMAN JUiy 17°1998
17 FRONT STREET
SALEM, MASSACHUSE'rB 01970-3707
CARL D. GOODMAN (508) 745-6006
JACQUELINE Voss LEES-
.�AMIIhd N COMtt'ONI
July k 1998 VIA CERTIFIED MAIL (as to all but City Hall)
To:
City Clerk, Salem City Hall, Salem, Massachusetts 01970 (via hand delivery)
Nina Cohen, 22 Chestnut Street, Salem, Massachusetts 01970. w
Richard Dionne, 23 Gardner Street, Salem, Massachusetts 01970
ri
Paul Valaskagis, 24 Gable Circle, Salem, Massachusetts 01970 r
Michael Ward, 4 Hilton Street, Salem, Massachusetts 01970
�r
Ronald Harrsion, 450 Lafayette Street, Salem, Massachusetts 01970
r�
0
RE: Wales v. Solomon et al
Essex Superior Court C.A. No.
To the above-named individuals:
Please be advised that a Complaint has been filed with the Superior Court Department of the
Trial Court for Essex County appealing a Decision of the Board of Appeals concerning property at
7 Mall St er et:�
A date-stamped copy of the Civil Action Cover Sheet and Complaint are enclosed.
Very truly yours,,
J/xCQU4INE VOSS LEES
kL:hbs
Enclosures
i
LAW OFFICE OF CARL D. GOODMAN
17 FRONT STREE'r
SALEM, MASSACIIUSE9-I'S 01970
CARLD. GOODMAN (508) 745-6006
JACKIE f3 ELF-B ECKEIt •N.e Av,ducJ 61 Camccticw
JACQUELINE Voss LEES-
Date: July 15, 1998 HAND DELIVERED
:Clerk's Office - Civil Re: Wales
:Superior Court Vs: Solomon et at
:'4 Federal Street Docket No.:
:Salem, MA 01970 Our File No.: 96-1387
Enclosed please find:
XX Complaint,Coversheet,Statement of Damages,Entry Fee and Return postcard
_SUMMONS&ORDER OF NOTICE WITH RETURN OF SERVICE
_Answer to the Complaint
_
Interrogatories Propounded by to be Answered by -
Request fur Production of Documents ler
_Agreement to Estend'fime for Answering 111te1T0gat0rieS
_Notice of Application under Rule 33(a)
_Request for Default under Rule 55(a)
_Notice of Taking Deposition
Certificate of Service/Marking Card
XX Other- Aflidavit ul'Service(ol'Cumplaint)with endorsed Certificate of Service
pursuant to G.L.c. 40A,§17
_Motion
_Kindly place on the List for at
_Contested/Uncontested
WWW#WWiWiiiiWWWWWWWWWWiWiiWWWWiWWWWWWiW#W##WiWWWWW##WiWii W#tiii#tiWWiiiiWW#WWi .
Very truly yours,
LAW OFFICE OF CARL D. GOODMAN
cc:Defendants
1J:�dfnvalcsm.Er]
i
i
a Court of Massactnusetts
CIVIL ACTION COVER SHEET SUPERIOR COURT DL=PARTMENT
. Al Essex
Division ...
PLAINTIFFS) DEFENDANT(s)
Philip Wales Nina Cohen, et als as Zoning
Board of Appeals (Salem) and Robert Solomon
ATTORNEY(S)FIRM NAME,ADDRESS AND TEL.) (q 78) 745-6006 ATTORNEY(S)(it known)
Jacqueline Voss Lees John Keenan, 15 Church St. , Salem, MA for
Law Office of Carl D. Goodman Nicholas Decoulos, 248 Andover St. , Peabod
17 Front Street, Salem, MA 01970 for Robert Solomon
Board of Bar Overseers H (Required) 553360
ORIGIN CODE AND TRACK DESIGNATION
Place an CXl in one box only:
L 1. F01 Original Complaint ❑ 4. F04 District Cl. Appeal c231, s. 97 (X)
❑ 2. F02 Removal to Sup. Ct. c231, s. 104 (F) ❑ 5. F05 Reactivated after Rescript; Relief from
❑ 3. F03 Retransfer to Sup. Ct. C231, s. 102C (X) judgmentlorder (Mass. R Civ. P. 60 (X)
❑ 6. E10 Summary process appeal (X)
TYPE OF ACTION AND TRACK DESIGNATION (See Reverse Side)
CODE NO. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE?
CO2 2nning--Appeal
( F ) ❑ Yes :V] No
1. PLEASE GIVE A CONCISE STATEMENT OF THE FACTS: (Required in ALL Types of Actions)
Plaintiff appeals a decision of Salem Zoning Board of Appeals as the same is in excess of its
authority, beyond the scope of a remand decision of this Courtin Wales v. Solomon 96-1142
issued by Judge Merrick on October 13, 1997 and is otherwise contrary to law.
2. IN A CONTRACT ACTION (CODE A) OR A TORT ACTION (CODE B) STATE, WITH PARTICULARITY,
MONEY DAMAGES WHICH WOULD WARRANT A REASONABLE LIKELIHOOD THAT RECOVERY
WOULD EXCEED $25,000:
Superior Court has jurisdiction of Zoning Appeals - c.40A
3. PLEASE IDENTIFY, BY CASE NUMBER, NAME AND DIVISION, ANY RELATED ACTION PENDING
IN THE SUPERIOR COURT DEPARTMENT.
Wales v. Solomon et Doc jct #96-1142
1142
SIGNATURE OF ATTORNEY OF RECORD OR/PLAINTIFF DATE
�L•l�iw�� 7/15/98
_ ,•nam, - _ :. r .,,.,i
v
DISPOSITION RECEIVED
A. Judgment Entered B. No Judgment Entered
El 1. Before jury trial or non-jury hearing El 6.6. Transferred to District OnrE
El 2. During jury trial or non-jury hearing Court under G.L. c.231,
❑ 3. After jury verdict s.102C. DISPOSITION ENTERED
❑ 4. After court finding Disposition Date BY:
❑ 5. After post trial motion DATE
OCAJ 6-into 005-6/91
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS SUPERIOR COURT DEPT.
OF THE TRIAL COURT
CIVIL ACTION No.
j PHILIP WALES,
Plaintiff
-V-
*
DATE:
Nina Cohen, Richard Dionne, ORIGINAL FILED IN ESSEXSUPERIOR-COURT
Paul Valaskagis, Michael Ward * COMPLAINT
Ronald Harrison, as
they constitute the
Board of Appeals of the *
City of Salem,
* co n
r
and
c �T
Robert Solomon
Defendants * �'
3
*************************1F***** tV _s
Ul �
1. Plaintiff, Philip Wales, is an individual who resides at 16 Williams Street, Salem, Essex
County, Massachusetts.
2. Defendant, Robert Solomon, is an individual who resides at 7 Mall Street, Salem, Essex
County, Massachusetts.
3. Defendant, Nina Cohcn, a member and Chair of the Board of Appcals for the City of Salem,
Massachusetts (hereinaRer referred to as the "Board"), is an individual who resides at 22 Chestnut
Street, Salem, Essex County, Massachusetts.
4. Defendant, Richard Dionne, a member of the Board of Appeals for the City of Salem,
Massachusetts (hereinafter referred to as the "Board"), is an individual who resides at 23 Gardner
Street, Salcm, Essex County, MassacI1LISCUS.
5. Defendant, Paul Valaskagis, a member of the Board of Appcals for the City of Salem,
Massachusetts (hereinafter referred to as the "Board"), is an individual who resides at 24 Gable
Circle, Salem, Essex County, Massachusetts.
Law Office or
Carl D. Goodman -
11 Front Street
Salm, MA 01970
1500)7.15-9006. 1
6. Defendant, Michael Ward, a member of the Board of Appeals for the City of Salem,
Massachusetts (hercinaller referred to as the "Board"), is an individual who resides at 4 Hilton
Street, Salem, Essex County, Massachusetts.
7. Defendant, Ronald Harrison, a member of the Board of Appeals for the City of Salem,
Massachusetts (hereinafter referred to as the "Board"), is an individual who tesides at 450 Lafayette
Street, Salem, Essex County, Massachusetts.
8. The defendants, Nina Cohen, Richard Dionne, Paul Valaskagis, Michael Ward and Ronald
Harrison, are all of the members and associate members of the Board of Appeals for the City of
Salem (said defendants shall hereinafter be collectively referred to as "the Board").
9. This action is an appeal brought pursuant to G.L. Chapter 40A, §17 for judicial review of a
decision of the Board, which decision was filed with the City Clerk for the City of Salem on June 29,
1998 (hereinafter referred to as "the Decision"). A certified copy of the Decision is attached hereto
and marked Exhibit "A" and hereby incorporated herein.
10. Plaintiff is a person aggrieved within the meaning of G.L. Chapter 40A, §17 by the Decision
of the Board in granting a Special Permit to defendant, Robert Solomon, as to real property located
at 7 Mall Street, Salem, Essex County, Massachusetts (hereinafter referred to as "the Locus").
11. On or about April 3, 1996, the defendant, Robert Solomon, filed a petition with the Board
seeking a special permit to allow construction of a second story on an existing single story addition.
12. Thereafter, a hearing was held on May 15, 1996.
13. At the conclusion of the hearing, the Board voted to grant a Special Permit as requested by
the defendant, Robert Solomon.
14. Plaintiff, Philip Wales appealed that decision to the Superior Court Docket # 96-1142 which
resulted in a trial in October, 1997 and thereafter the Honorable Judge Merrick issued an order dated
October 13, 1997 which remanded the matter to the Board for determination of specific factual
issues. A copy of Judge Merrick's order is annexed hereto as Exhibit B.
15. Thereafter, Attorney John Keenan, City Counselor for the City of Salem wrote a letter to the
Board and forwarded the same to Plaintiff and Defendant which distilled the factual issues Judge
Merrick had asked the Board to determine. A copy of Attorney Keenan's letter is annexed hereto
and marked as Exhibit C.
16. The Decision of the Board exceeds the authority of said Board and is well beyond the scope
Law Office of
Carl D. Goodman - -
17 Front Street
Salem, MA 0170
(508)745-6006 - 2
I
of the remand decision issued by Judge Merrick.
17. The findings set forth in the Decision and the reasons for the findings set forth in the Decision
are insufficient in law to warrant the granting of the Special Permit.
18. The findings set forth in the Decision and the reasons for the findings set forth in the Decision
were not based upon any evidence and in fact are contrary to the evidence which was submitted.
19. The Decision is unwarranted and beyond the authority of the Board as it is contrary to the
provisions of G.L. 40A and the provisions.of the Zoning Ordinance of the City of Salem as the
Decision allows the expansion of an illegal structure, purports to grant a special permit which was
well beyond the scope of the remand order and is otherwise contrary to law.
WHEREFORE, the Plaintiff demands that this Honorable Court:
1. After hearing, determine the facts, and upon the facts so determined, annul the Decision of
the Board on the grounds that said Decision exceeds the authority of said Board; and,
2. Grant such other and further relief as may be appropriate.
Dated: July, N 1998
PHILIP WALES, Plaintiff
By his attorney:
• e'l � L
IJ CQ TUNE VOSS LEES, ESQ.
aw Oflice of Carl D. Goodman
17 Front Street
Salcm, MA 01970
Telephone: (508) 745-6006
BBO #553360
j\realest\wal gs2.cpl
Law Office of
Cnrl D. rendman -
17 Frout Street
Salem, IM 01970
(500)745-6006 3
Citu ofSalem, Attssucljusefts
n M
Pourb of AFpeal DUH
19
3i4PM !98
CrrY
DECISION ON THE PETITION OF ROBERT SOLOMON REQUESTING A C(.Of' BALI M MASS
rRK,S pr.FlrF
SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 7 MALL STREET
A hearing on this petition was held April 15, 1998 and continued
until June 17, 1998 with the following Board Members present: Nina
Cohen, Chairman, Richard Dionne, Paul Valaskagis , Michael Ward and
Ronald Harrison. Notice of the hearing was sent to abutters and
others and notices of the hearing were properly published inIthe
Salem Evening News in accordance with Massachusetts General Laws
Chapter 40A.
Petitioner is requesting a Special Permit to allow the addition of a
second story on an existing single story addition and address the
questions of the Honorable Nancy 'Merrick, Justice Essex Superior
Court (Court Order 10/31/97) .
The provision of the Salem Zoning Ordinance which is applicable to
this request for a Special Permit is Section 5-3(j ) , which provides
as follows :
Notwithstanding anything to the contrary appearing in this Ordinance,
the Board of Appeal may, in accordance with the procedure and
conditions set forth in Sections 8-6 and 9-4 , grant Special Permits
for alterations and reconstruction of nonconforming structures, and
for changes, enlargement, extension or expansion of nonconforming
lots, land, structures, and uses, provided, however, that such
change, extension, enlargement or expansion shall not be
substantially more detrimental than the existing nonconforming use to
the neighborhood.
In more general terms, this Board is, when reviewing Special Permit
requests, guided by the rule that a Special Permit request may be
granted upon a finding by the Board that the grant of the Special
Permit will promote the public health, safety, convenience and
welfare of the City's inhabitants.
The Board of Appeal, after careful consideration of the evidence
presented at the hearing and after viewing the plans, makes the
following findings of fact:
1 . Petitioner seeks a special permit -to build a second story
addition onto an existing nonconformin structure at 7 Mall Street
in Salem to be used for residential purposes.
2. Petitioner's request has twice been appealed and twice remanded to
this Board. After it was initially heard by the Board on May 18,
1994 an41 June 15, 1994, an appeal of the Board's decision was
filed in Superior Court, captioned Philip Wales v. Wendi Goldsmith
et als. , C.A. NO. 94-1653. On remand, petitioner's request was
granted in a Zoning Board decision dated May 17, 1996.
DECISION OF THE PETITION OF ROBERT SOLOMON REQUESTING A SPECIAL
PERMIT FOR THE PROPERTY LOCATED AT 7 MALL STREET
page two
3. An appeal was taken from the May 17, 1996 decision, capti*29 314 Ph 198
Philip Wales V. Robert Solomon, et al .s, C.A. No 96-1142 RT e
present hearing is held in compliance with a Superior CouY� SALFM. MASS
in that case, issued October 31, 1997. . XIS ()VFICF.
4 . Petitioner purchased the property at 7 Mall in 1992. The residence
at the time of the purchase comprised a main two-story building
and attached one-story ell, used as an auxillary entrance.
r
5. The building and auxillary structure at 7 Mall Street is a
nonconforming structure within the meaning of the Salem Zoning
Ordinance because it pre-existed the enactment of the ordinance
and would not meet the requirements of the current law if it were
to be constructed today.
On the basis of the above findings of fact, and the evidence
presented, the Board of Appeal concludes as follows:
1 . The Special Permit requested can be granted without substantial
detriment to the public good or without nullifying and substantially
derogating from the intent of the district or the purpose of the
ordinance.
2. The granting of the Special Permit requested will promote the
public health, safety, convenience and welfare of the City's
inhabitants and may be granted in harmony with the neighborhood.
Therefore, the Zoning Board of Appeal voted unanimously, 5-0 to
grant the Special Permit requested.
SPECIAL PERMIT GRANTED
June 20, 1998
Nina Cohen, Chairman
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 MGL Chapter 40A and shall be filed within 20 days after the
date of filing of this decision in the office of the City Clerk.
Pursuant to MGL Chapter 40A, Section 11, the Variance or Special
Permit granted herein shall not take effect until a copy of the
decision, bearing the certification of the City Clerk that 20 days
have elapped and no appeal has been filed, or that, if such appeal
has been filed, that it has been dismissed or denied is recorded in
the South Essex Registry or Deeds and indexed under the name of the
owner of record or is recorded and noted on the owner's Certificate
of Title
A TRUE COPY ATTES-r
CITY CLERK
SALEM, MASS.
COMMONWE-ALTI-I OF MASSACI-IUSL'I'TS
ESSEX' SS. SUPERIOR COURT
CIVIL ACTION
NO: 96-1142-B
PHILIP WALL'-S, t
Plaintiff
V%.
ROBERT SOLOMON incl GARY BARRETT, NINA COHEN,
ALBERT HILL, JOSEPI-I YWUK and ARTHUR LEBRECQUL'-,
as they constitute the Boarcl of Appeals of the City of Salem,
Defendants
J �iL GMfNT Or D1:CISiON
(October 31, 1997)
This matter came on for hearing before the Court, lvterrick, J., presiding on an appeal by the
plaintiff; Philip Wales, from a decision by the City of Salem Zoning Board of Appeals to grant a
special permit.
After review of the records, the Court hereby RF (ANDS the matter to the City of Salem
Zoning Board of Appeals For further hearing, findings and rulings in accordance with the
Order of Merrick, J. dated October 31 , 1997.
t
Dated at Peabody, Massachusetts this 31th day ol'October, 1997.
f ('ycfk
Deputy ssisrt t
3
a building permit when the structure was first built, would the permit have issued? If
this is the case, do the facts in this limited instance, including the fact that the current
property owners are Without fault in the failure to obtain a building permit for the
existing structure, warrant a finding by the ZBA that the structure is in fact non-
Coll 1,01-111il 1gy.
on-Conl,orming.
Therefore, the matter is hereby REMANDED to the City of Salem Zoning Board
of Appeals for further hearing, findings and pilings pursuant to this ORDER.
�--JL.fwl� Y ✓I--FJ�''uG�Ci
Nancv Me 'ick
Justice of the Superior Court
Dated: October 1997
i
2
existing structure is non-conforming i.e. does it fall within tic definitions of Scc• 3-1 and
S- 1 of the Salem Zoning Ordinances. Specifically, the ZBA should n —e findings as to
whether the stricture complied with the zoning law at the time it was built (which will
obviously require the ZBA to determine a tune frame within which it finds the structure
was built).
In considering this application for a special permit, the ZBA should continue to
be mindful - as it has already been - of the general intent and purpose of its zoning
ordinance provisions. Articles III through VIII set forth the substantive law which
. The method by which those substantive zoning
govern this special permit petition
requirements is enforced is sec forth in Article IX, entitled "Administration". This
includes the requirement of obtaining building permit. It would appear From a reading
of the entire Citv of Salem Zoning Ordinances that the requirement of a building permit
is a procedural mechanism to ensure•compliance ith the body of zoning ordinances
contained in Articles III ti-trough VIII.• Prior to this Court addressing this issue,
however, this Court ought to defer to the ZBA to consider the question, if in its view
ropriate findings of fact and consider
it is appropriate. That is, the ZBA should make app
the following question (if the facts permit): where the existing structure met all existing
zoning requirements but for the failure of a predecessor owner of the property to comply
of obtaining a building permit, is it a non-conforming
with the procedural requirement
stricture in tue judgement of the ZBA? Put another way, if a predecessor had applied for
"r
I
COMMONWEALTI-I OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT
CIVIL ACTION
NO: 96-1142-B
PHILIP WALES,
Plaintiff
VS.
ROBERT SOLOMON and GARY BARRETT, NINA COHEN,
ALBERT HILL, JOSEPI-I YWUK and ARTHUR LEBRECQUE,
as they constitute the Board of Appeals of the City of Salem,
Defendants
n R1Z
This matter came before the Court for a hearing on Lhe City of Salem's Zoning
Board of Appeal's (ZBA) decision to grant a special permit. For the reasons set forth
below, this Court remands the matter to the ZBA for further hearing and consideration
of the following areas of inquiry.
After review of the facts and applicable law, the record is not clear as to whether
or not the txistiing 12' x 12' structure is a non-conforming structure. It appears from a
brief review of the exhibits and trial testimony that the existing structure may well have
complied with the zoning by-laws but for the issuance of a building permit. For
example, according to exhibits presented at trial, it appears that the property met setback
requirements at least in 1986 (Exhibit 3). The ZBA should attempt to ascertain if the
T.
CITY OF SALEM - MASSACHUSETTS
WILLIAM J. LUNDREGAN
-
Ci Solicitor Legal Department JOHN D KECNAN
City
93 Washington Street Assistant City Solicitor
et Washington street Salem, Massachusetts 01970 15 Church Stroet
Tel:978-741-3080 I TO 970-744-0500
Fax:978.741.8110 Fax:978-744.0111
I
February 26, 1998
Law Office of Carl D. Goodman DECOULOS & DECOULOS
Jaqueline Voss Lees, Esq. Nicholas J. Decoulos, Esq.
17 Front Street 248 Andover Street
Salem, Massachusetts 01970-3707 Peabody, Massachusetts 01960
RE: Plliillip Wales v. Robert Solomon anal ad. of Appeals
Essex Superior Court: Docket 96-1142-B
Remand to Board
Dear Attorneys Lees and Decoulos:
The above captioned matter has been brought to my attention. I have
Inquired of the Clerk of the Board of Appeals if this has been placed on the
board's schedule. It appears that it has not.
Judge Merrick's Decision (October 31; 1997) directs the Board to
determine Whether the existing 12' x 12' structure is nonconforming within the
Salem Zoning Ordinance? Specifically, Judge Merrick asks the Board the
following questions:
1
♦ When was the structure in question built?
♦ At the time the structure was built, did it comply with the zoning law?
♦ If the structure did comply with the Zoning Ordinance at the time it
was-built, but for the failure to obtain a building permit, is it a
nonconforming structure in the judgment of the Board?
Page Two of Two
February 26, 1998
Attorneys Lees & Decoulos
RE: Remand to Board
♦ If the structure did comply, but for the permit, do the facts in this
limited case, including that the current owners (petitioners for the
special permit) are without fault in failure to obtain the permit, warrant
a finding by the Board that the structure is nonconforming?,'
The clerk has suggested that this matter be placed on the agenda for the
Wednesday, April 15, 1998, meeting"of the Board of Appeals. If this date is
agreeable to both of you, you should file an application with the clerk requesting
a hearing consistent with Judge Merrick's decision.
Thank you for your attention to this matter. Do not hesitate to call with
any questions.
Very I�best regards,
i
L,--
Joh D. Keenan, Esq.
Jdk/kjm
CC. Salem Board of Appeals
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS SUPERIOR COURT DEPT.
OF THE TRIAL COURT
C. A. No.
PHILIP WALES,
Plaintiff
_V_
Nina Cohen, Richard Dionne,
Paul Valaskagis, Michael Ward
Ronald Harrison, as * AFFIDAVIT OF SERVICE
they constitute the
Board of Appeals of the
City of Salem,
*
and
Robert Solomon
Defendants
*******************************
I, Jacqueline Voss Lees, certify as follows:
Notice of the within action was given to all defendants by causing a Notice in the form
attached hereto and marked Exhibit "A" together with a copy of the Civil Action Cover Sheet and
Complaint to be mailed to said defendants at the addresses set forth in said Notice by Certified Mail,
postage prepaid, this _th day of July, 1998.
Sworn to under the pains and penalties of perjury.
iQ
r-' �--'LINE VOSS LEES
Law Office of
Carl D. Goodman
17 Front Street _
Salem, MA 01970
(508)745-6006 1
CERTIFICATE OF SERVICE
I hereby certify that a copy of the within document has been served on the Defendants by
causing the same to be mailed, CERTIFIED MAIL, postage prepaid, this day, to:
Nina Cohen, 22 Chestnut Street, Salem, Massachusetts 01970.
Richard Dionne, 23 Gardner Street, Salem, Massachusetts 01970
Paul Valaskagis, 24 Gable Circle, Salem, Massachusetts 01970
Michael Ward, 4 Hilton Street, Salem, Massachusetts 01970
Ronald Harrsion, 450 Lafayette Street, Salem, Massachusetts 01970
John Keenan, Esq. 15 Church Street Salem, Massachusetts 01970
Nicholas Decoulos 248 Andover Street Peabody, Massachusetts 01960
Dated: JulyA 1998
iI1
INE VOSS LEES, ESQ.
t� torn /for Philip Wales -Plaintiff
Front Street
Salem, MA 01970
Telephone: (508) 745-6006
BBO #553360
Law Office of
Carl D. Goodman
17 Front Street -
Salem, MA 01970
(508)745-6006 2
LAW OFFICE OF CARL D. GOODMAN
17 FRONT STREET
SALEM, MASSACHUSETTS 01970-3707
CARL D. GOODMAN (978) 745-6006
JACQUELINE Voss LEES+ vu.o na„Yn.a co�au�
(D
July Yfz, 1998
Nina Cohen, 22 Chestnut Street, Salem, Massachusetts 01970.
Richard Dionne, 23 Gardner Street, Salem, Massachusetts 01970
Paul Valaskagis, 24 Gable Circle, Salem, Massachusetts 01970
Michael Ward, 4 Hilton Street, Salem, Massachusetts 01970
Ronald Harrison, 450 Lafayette Street, Salem, Massachusetts 01970
John Keenan, Esq. 15 Church Street, Salem, Massachusetts 01970
Nicholas Decoulos, Esq. 248 Andover Street Peabody, Massachusetts 01960
Re: Wales v. Solomon - Motion to Consolidate
To the Above Named:
Please be advised that the enclosed motion to consolidate is being served upon you
in accordance with Superior Court Rule 9A. Please respond within the time permitted by
law.
Sincerely,
J QGCe� S/ESS
JVUhbs
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS SUPERIOR COURT DEPT.
OF THE TRIAL COURT
CIVIL ACTION No.
PHILIP WALES,
Plaintiff
—v—
Nina Cohen, Richard Dionne, .
Paul Valaskagis, Michael Ward
Ronald Harrison, as
they constitute the * MOTION TO CONSOLIDATE
Board of Appeals of the
City of Salem,
and
*
Robert Solomon
Defendants
NOW comes the Plaintiff in the above captioned matter and moves this Honorable Court,
pursuant to Mass. Civ. P.R. 42(a) to consolidate the above captioned action with Wales v. Solomon
Docket # 96-1142 which is currently pending before this Court.
As reasons therefore, Plaintiff states that the above captioned action is a zoning appeal from a
decision rendered by the Salem Zoning Board of Appeals dated June 29, 1998. That decision was
rendered as a result of a remand order in the pending case of Wales v. Solomon Docket #: 96-1142.
In both cases there are common issues of both law and fact, and therefore, consolidation shall avoid
unnecessary costs or delay.
WHEREFORE, Plaintiff requests that this Honorable Court consolidate the above captioned
matter with Wales v. Solomon Docket #: 96-1142.
i
Law Office of
Carl D. Goodman
17 Front Street -
Salem, MA 01970
(508)745-6006 1
PHILIP WALES, Plaintiff'
By his attorney:
J CQ NLINE VOSS LEES, ESQ.
Law 0 ice of Carl D. Goodman
17 Front Street
Salem, MA 01970
Telephone: (508) 745-6006
BBO #553360
CERTIFICATE OF SERVICE
I hereby certify that a copy of the within document has been served on the Defendants by
causing the same to be mailed, CERTIFIED MAIL, postage prepaid, this day, to:
Nina Cohen, 22 Chestnut Street, Salem, Massachusetts 01970.
Richard Dionne, 23 Gardner Street, Salem, Massachusetts 01970
Paul Valaskagis, 24 Gable Circle, Salem, Massachusetts 01970
Michael Ward, 4 Hilton Street, Salem, Massachusetts 01970
Ronald Harrsion, 450 Lafayette Street, Salem, Massachusetts 01970
John Keenan, Esq. 15 Church Street Salem, Massachusetts 01970
Nicholas Decoulos 248 Andover Street Peabody, Massachusetts 01960
Dated: July�$1998
J 1£LINE `✓OSS LEES, ESQ.
A orney for Philip Wales - Plaintiff
17 Front Street
Salem, MA 01970
Telephone: (508) 745-6006
BBO #553360
Law Office of
Carl D. Goodman
17 Front Street "
Salem, MA 01970
(508)745-6006 2