31 MARLBOROUGH ROAD - ZBA (4) 31 MARLBOROUGH ROAD (R-1 )
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TRAPPER REALTY TRUST
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DECISTC:: ON THE PETITION CF _HONAS .. DONOVAN, TRUSTEE OFc7-"i TRAP PER
TYIFFICE
REAL :'RUST FOR A VARIANCE FROM LCT SIZE FOR THE PROPERTY LOCATED AT
31 MARLBOROUGH ROAD (R-1)
s. hearing on this petition .:as held February 15, 1995 with the following
Board members present: Stephen Touchette, Chairman; Arthur Labreque, Gary
Barrett, Nina Cohen and Albert Hill. Notice of the hearing was sent to
abutters and others and notices of the hearing were properly published in
the Salem Evening News :n accordance with Massachusetts General Laws
Chapter 40A.
Petitioner, owner of the property located at 31 Marlborough Road, was
requesting a Variance from lot size requirements for the property located
at 31 Marlborough Road.
The relief which has been requested may be granted upon a finding of this
Board that:
1. Special conditions and circumstances exist which especially affect the
land, building or structure involved and which are not generally affecting
other land, buildings, or structures in the same district.
2. Literal enforcement of the provisions of the Zoning Ordinance would
involve substantial hardship, financial or otherwise, to the petitioner.
3. Desirable refuel may be granted without substantial detriment to the
public good and without nullifying or substantially derogation from the
intent of the district or the purpose of the Ordinance.
The Board of Appeal, after careful considerations the evidence presented at
the hearing, makes the following findings of fact:
1. On September 30, 1994. Robert Bouchard, Trustee, conveyed the 31
Marlborough Road property to its current owner and petitioner, Thomas
M. Donovan, Trustee of the Trapper Realty Trust.
2. 31 Marlborough Road is a lot of approximately 5064 square feet.
3 . In 1977, the Salem Zoning Ordinance was changed. Said zoning change
increased the minimum lot size from a minimum of 7,000 square feet to
15,000 square feet in an R-1 district.
4. In reliance upon a letter dated July 11, 1984, written by Mr.
MacIntosh, former Building Inspector for the City of Salem, holding
that the lot known as 31 Marlborough Road was a "grandfathered" lot,
Leo Tremblay, the Zoning Enforcement Officer, issued an opinion letter
dated July 13, 1993, stating that said 31 Marlborough Road property was
a " grandfathered" '_ot . and was therefore a buildable lot even though
said lot did not meet the now existing minimum lot size of 15,000 sq.
feet .
3 . in reliance upon the opinion letter dated July 13. 1993, stating that
the 31 Marlborough Road property was a buildable lot, the petitioner
purchased said property.
6. On November 2, 1994, tae Building inspector issued a Building Permit
DECISION OF THE ^TI"_':ON OF .TCM?S M. ONOVAN. TRUSTEE Cr THE TRAPPER
REALTY TRUST REOUESTI?;G A ' =RIANCE FROM LOT S1ZE FOR TEE ?30PRT ' OC TE
AT 31 M.ARLBOROUGH ROAD (R-1 ) 'JA —�
page two
for 31 Marlborough Road. and thereafter construction began o_�'.the
property with the pouring of a concrete foundation.
? . Subsequent to commencement of construction, Richard Anderson, 35
Marlborough Road, filed a petition with the Board of Appeal seeking
enforcement of the Zoning Ordinance and revocation of the building
permit issued for the 31 Marlborough Road property ofn the basis that
the Building inspector erred in holding that the 31 Marlborough Road
property was a "grandfathered"lot and therefore not subject to the now
existing 15,000 square foot minimum lot size. The Board granted the
petition and ordered the building permit not be approved.
S. The 31 Marlborough Road property is a unique triangular shaped lot with
a sloping terrain. Because of its unique shape, the property has two
frontages- one on Marlborough Road and one on Michael Road.
9. With the exception of lot size, the now proposed construction meets all
other side and front setback and frontage requirements for an R-1
district.
10. On or about April 27, 1994, the previous owner of the 31 Marlborough
property petitioned for a variance from setback requirements which
petition was denied by this Board. At the time of said hearing, the
immediate abutter, Cheri Anderson, 35 Marlborough Road, opposed the
requested variance in part based on the then proposed construction
proximity to her property line. Although opposed to the present
request for a variance, Mrs. Anderson's in as much as setback
requirements will be met, but rather in based on the lot size of the 31
Marlborough Road property.
11. Councillor Leonard O'Leary, 'Ward 4, opposed construction on the lot
known as 31 Marlborough Road.
12. Mr. James Gemma, 36 Marlborough Road, opposed construction on the lot
known as 31 Marlborough Road.
13. Richard and Cheri Anderson, 35 Marlborough Road, opposed construction
on the lot known as 31 Marlborough Road.
On the basis of the above findings of fact, and on the evidence presented
at the hearings, the Board of Appeal concludes as follows:
1 . Special conditions exist which especially affect the subject property
and not the district in general.
2. Literal enforcement of the provisions of the Zoning Ordinance would
involve substation hardship to the petitioner.
3 . The request relief can be granted without substantial detriment to the
public good and without nullifying and substantially derogating from
the intent of the district or purpose of the Ordinance.
Therefore, the Zoning Board of Appeal voted four (,$) in favor, one ( 1) Ms.
Cohen, in opposition to the motion to grant the petition for the requested
for the variance with the following conditions :
1 . Petitioner shall comply with all city and state statutes, ordinances,
codes and regulations.
2. All construction shall be done as per the pans and dimensions
submitted.
DECIS-ON OF THE PETITION GF THOMAS N. DONOVAN. TRUSTEE OF THE TRAPPER
REALLY TRUST REQUESTING A VARIANCE FOR THE PROPERTY AT 31 FARLBDROUGH
ROAD f R-1) '95 MAP -6 P
page three
3 . ' !I requirements of the Salem Fire Department reSk ive 'tc smoke and
fire safety shall be strictly adhered to.
>. Petitioner shall obtain a building permit prior to beginning any
construction.
5. Proper street numbering shall be meet.
6. Certificate of Occupancy is to be obtained.
Variance Granted
February 15, 1995
J
Gary M. Barrett
Board of Appeal, Member
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY
CLERK
Appeal from this decision, if any, shall be made pursuant to Section 17 of
the Massachusetts General Laws Chapter 40A, and shall be filed within 20
days after the date of filing of this decision in the office of the City
Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11, the
Variance or Special Permit granted herein shall not take effect until a
copy of the decision bearing the certification of the City Clerk that 20
days have elapsed and no appeal has been filed, or that, if such appeal has
been filed, that it has been dismissed or denied is recorded in the South
Essex Registry of Deeds and indexed under the name of the owner of record
or is recorded and noted on the owner's Certificate of Title.
Board of Appeal