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31 MARLBOROUGH ROAD - ZBA Thomas Donovan (R-1 ) 31 Marlborough Road Ctlj of -`-5alrm, -Boarb of Appeal *95 MAR -6 P 4 :1 DECISION ON THE PETIT T ON OF 7HOMkS �-.. DONOVAN, TRUSTEE OFC4- qFFICE 1� - k 'TRAIP�ER - REALTY TRUST FOR A VARIANCE FROM LOT SIZE FOR THE PROPERTY LgtATED AT 31 MARLBOROUGH ROAD (R-1) A hearing on this petition was held February 15, 1995 with the following Board members present: �tephen 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 in 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. 'he 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. 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" lot . and was therefore a buildable lot even though said lot did not meet the now existing minimum lot size of 15,000 sq. feet . 5. 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, the Building Inspector issued a Building Permit DECISION OF THE DET1710N OF THOMAS M. DONOVAN. 7RUSTEE OF THE TRAPPER REALTY TRUST REQUESTING A VARIANCE FROM LOT SIZE FOR THE PROWI�.A�11�TEP4 :1, AT 31 MARLBOROUGH ROAD (R-1) page two CH for 31 Marlborough Road, and thereafter constructlon oegan property with the pouring of a concrete foundation. 7. 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. 3 . 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 (4) 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 plans and dimensions submitted. DECISION OF THE PETITION OF THOMAS M.,. DONOVAN, TRUSTEE OF THE TRAPPER REALLY TRUST REQUESTING A VARIANCE FOR THE PROPERTY AT 31 MARLBOROUGH ROAD (R-1) '95 MAR -6 P page three C!Ty F F'r,E All requirements of the Salem Fire Department rel " f6� ` 11 ktfV6 smoke and fire safety shall be strictly adhered to. 4. 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 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 (Gibc of -Salpm, Boarb of Au 0 - - , peal '95 MAR -6 P 4 :10, DECISION ON THE PETITION OF THONIAS M. DONOVAN, TRUSTEE OFC_11�` r � 'IPFICE t mk�DER . REALTY TRUST FOR A VARIANCE FROM LOT SIZE FOR THE PROPERTY LC`CXTED AT 31 MARLBOROUGH ROAD (R-1) A hearing on this petition was held February 15, 1995 with the following Board members present: �tephen 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 'in 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. 'he 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, conveved 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" lot . and was therefore a buildable lot even though said lot did not meet the now existing minimum lot size of 15,000 sq. feet . 5 . 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, the Building inspector issued a Building Permit DECISION OF THE PETIT T ON OF THOMAS �T. DONOVAN. 7RUSTEE OF THE TRAPPER REALTY TRUST REQUESTING A VARIANCE FROM LOT SIZE FOR THE PRGWT�,A�118TEPA :1() AT 31 ?TARLBOROUdH ROAD (R-1) page two C1 1 y n! , f,crlrE for 31 Marlborough Road, and thereafter construction began ep;-the ..; property with the pouring of a concrete foundation. 7. 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. 8 . 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 (4 ) 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. All construction shall be done as per the plans and dimensions submitted. DECISION OF THE PETIT T ON OF THOMAS M. DONOVAN, TRUSTEE OF THE TRAPPER REALLY TRUST REQUESTING A VARIANCE FOR THE PROPERTY AT 31 MARLBOROUGH ROAD (R-1) '95 MAR -6 P 4 :1 page three C 'y ! J. All requirements of the Salem Fire Department relakive' , 6 smoke and fire safety shall be strictly adhered to. 4 . Petitioner shall obtain a building permit prior to beginning any construction. 3. Proper street numbering shall be meet. 6. Certificate of Occupancy is to be obtained. Variance Granted February 15, 1995 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 (flttT of Bourb of peal '95 MAR —6 P 4 :101 DECISION ON THE PETITION OF 7HOMAS M. DONOVAN, TRUSTEE OFU PER �'j 0-FICE REALTY TRUST FOR A VARIANCE FROM LOT SIZE FOR THE PROPERTY LC`d�TED AT 31 MARLBOROUGH ROAD (R-1 ) A hearing on this petition was held February 15, 1995 with the following Board members present: �tephen 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 'in 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. 'he 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, conveved 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 " �randfathered" lot . and was therefore a buildable lot even though said lot did not meet the now existing minimum lot size of 15,000 sq. feet . 5. Tn 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, the Building Inspector issued a Building Permit DECISION OF THE PETITION OF THOMAS M. DONOVAN, TRUSTEE OF THE TRAPPER REAT TY TRUST REQUESTING A VARIANCE FROM LOT SIZE FOR THE PROWT�.A�041TEP A :1 L AT 31 MARLBOROUGH ROAD (R-1) page two Cl i --irE ,-the for 31 Marlborough Road, and thereafter construction began !4 _ property with the pouring of a concrete foundation. 7. 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. 8. 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 (4) 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 plans and dimensions submitted. DECISION OF THE PETITION OF THOMAS IN1. DONOVAN, T OF THE TRAPPER REALLY TRUST REQUESTING A VARIANCE FOR THE PROPERTY AT 31 MARLBOROUGH ROAD (R-1 ) '95 MAR -6 P 4 :1 page three 7 F I r E CiTY 3. All requirements of the Salem Fire Department reSki�ve ;`E6 smoke and fire safety shall be strictly adhered to. 4 . 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 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 T �5:-Ujem, 4faF[Ear.jj., "its Bourb arf fteal MAR -6 114 :1,-1 DECISION ON, THE PETITION OF RICHARD D. ANDERSON E TING REVIEW. OF THE DECISION OF THE ZONING ENFORCEMENT OFFICER REGARDINGITHE UNDERSIZE LOT AT 31 MARLBOROUGH ROAD JR-1) A hearing on this petition -was held December 7, 1994 and was continued on January 18,1995 and 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 in accordance with Massachusetts General Laws Chapter 40A. Petitioner, owner of the property located at 35 Marlborough Road, was requesting enforcement of the Salem Zoning Ordinance and revocation of a building permit issued by the Building Inspector for the property located at 31 Marlborough Road for the reason that the 31 Marlborough Road lot was undersized and that the ,,Bui--, ding Inspector erred when he held the lot to be .'grandfathered" for the now existing lot size requirements. The relief which has been requested may be granted upon a finding of this Board that: 1. The lot known and numbered as 31 Marlborough Road does not meet the minimum lot size of 15,000 square as now required in a R-1 zone; and 2. The 31 Marlborough Road lot is not "grandfathered" from application of the now existing minimum lot size requirement, and as a consequence thereof is not a building lot without a variance from said lot size restrictions. The Board of Appeal, after careful considerations the evidence presented at the hearing, makes the following findings of fact: 31 MARLBOROUGH ROAD 1. By deed dated November 23, 1970, Lionel J. Bouchard and Louise Bouchard acquired title to the lot at 31 Marlborough Road. By deed dated January 13, 1987, Louise Bouchard conveyed title to the 31 Marlborough Road property to Robert Bouchard, Trustee of the Marlborough Street Realty Trust. 3. On September 30 1994, Robert Bouchard, Trustee conveved the 31 Marlborough Road propertv to its current owner, the Trapper Realty Trust. 35 MARLBOROUGH ROAD L . The property known as 33 Marlborough Road was acquired on February 9, 1965 by Loinel j. and Louise Bouchard. 5. Loinel Bouchard died on August 8, 1972, and bv operation thereof Louise Bouchard became sole owner of the 35 Marlborough Road property. 0. By deed dated November 13, 1986, Robert M. Bouchard acquired title to DECISION OF THE PETITION OF RICHARD D. A1,,'DERSON REQUESTING REVIEW OF THE DECISIOU OF THE ZONING ENFORCEMENT OFFICER REGARDING THE UNDERSIZE LOT AT 31 MARLBOROUGH ROAD (R-1) page two 33 Marlborough Road property. '95 MAP -6 HV, On July 7 1994, Robert M. Bouchard conveyed the 33 Marlborough Road property to its current cwners, Richard and Cheri Anderson. 3 . 35 Marlborough Road is reflected as Parcel 73 orc!Uls�isors" �4�v; and 31 Marlborough Road is reflected as Parcel 71 on sa'16 ,As'sessors 'Map 8 9. 35 Marlborough Road and 31 Marlborough Road are adjoining lots. 10. 35 Marlborough Road and 31 Marlborough Road were held in common owner- ship commencing on November 30, 1970 by Lionel J. and Louise Bouchard. 11. 31 Marlborough Road is a lot of approximately 5064 square feet. 12. 35 Marlborough Road is a lot of approximately 13,873 square feet. 13. In 1977, the Salem Zoning Ordinance was changed. Said zoning change increased the minimum lot size from a minimum of 7000 square feet to 14. Lionel and Louise Bouchard resided in a house situated on the property at 35 Marlborough Road. As of this date, Richard and Cheri Anderson reside in the house situated on the 35 Marlborough Road property. 15. In reliance upon a letter dated July 11, 1984 written by Mr. MacIntosh, former Building Inspector of the City of Salem, holding that the lot was known as 31 Marlborough Road was a "grandfathered" lot, Leo E. Tremblay, the Zoning Enforcement Officer, issued an opinion letter dated July 13, 1993 stating that the said 31 Marlborough Road property was a "grandfathered" lot, and was therefore a building lot even though said lot did not meet the now existing minimum lot size of 15,000 square feet. 16. On November 2, 1994, the Building Inspector issued a Building Permit for 31 Marlborough Road, and thereafter construction began on the property with the pouring of a concrete foundation. 17. Mr. James Gemma, 36 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 18. Mr. Roger Legend, 64 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 19. Mr. Michael Dennedy, 4 Orleans Avenue, opposed construction of the lot known as 31 Marlborugh Road. 20. Councillor Leonard O'Leary, Ward 4, opposed construction of the lot known as 31 Marlborough Road. 21. Richard and Cheri Anderson, 35 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 22. A letter dated February 2, 1995 from Robert Ledoux, City Solicitor to Stephen Touchette, Chairman, Board of Appeals, was made part of the record. 23. A legal memorandum on behalf of Thomas Donovan, Trustee of the Trapper Realty Trust was submitted as requested by the Board, and was made part of the record. No such memorandum was submitted on behalf of the Petitioner. 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 . The lots known as 31 Marlborough Road and 35 Marlborough Road respectively merged in common ownership as of November 30, 1970. 2. As of the date of the 1977 Amendment to the Zoning Ordinance for the City of Salem, both of the lots known as 31 Marlborough Road and 35 Marlborough Road respectively were non-conforming lots in as much as DECISIOA: OF THE PETITION OF RICHARD D . 'ANDERSON REQUESTING REVINr-07F77HE7 -1. DECISION OF THE ZONING ENFORCEMENT OFFICER REGARDING THE UNDERSIZE LOT AT 31 MARLBOROUGH ROAD (R-1) page three '95 MAR —6 P4 :10 the new Zoning Ordinance required a minimum lot size of 15,000 sq.feet. 3. As of the date of the 1977 Amendment -to the Zoning Ordin6bJc)6 fcY-'�t1fe0'i!;E City of Salem, the lots known as 31 Marlborough Road and 35sildriboroagh Road were held in common ownership; said lots having been held in common ownership since November 30, 1970. L . By virtue of the doctrine of merger, the lot known as 31 Marlborough Road is not a "grandfathered" lot, and is therefore an undersized lot, requiring a variance in order to build upon it. Therefore, the Zoning Board of Appeal voted unanimously, 5-0 in favor of the motion to grant the Petition of Richard D. Anderson seeking enforcement of the Zoning Ordinance finding that the Zoning Enforcement officer erred in deciding that the lot known as 31 Marlborough Road was a "grandfathered" lot and therefore erred in issuing the Building Permit for said property on said basis, and the Board hereby orders the Building Permit for said property on said basis, and the Board hereby orders the Building Inspector to not approve the permit to build as filed. Petition Granted February 15, 1995 Gary M. Barrett Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect 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 Tit" of -,-SajVM fflas�acfj,.VSkitq BDMrb of u�P211 c I MAR -6 P4 :1 0 r�,7 �.,..� ,:FIrF DECISION ON THE PETITION OF RICHARD D. ANDERSON REQkSTIr•?6 REVIEW OF THE DECISION OF THE ZONING ENFORCEMENT OFFICER REGARDING THE UNDERSIZE LOT AT 31 MARLBOROUGH ROAD (R-1) A hearing on this petition was held December 7, 1994 and was continued on January 18,1995 and 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 in accordance with Massachusetts General Laws Chapter 40A. Petitioner, owner of the property located at 35 Marlborough Road, was requesting enforcement of the Salem Zoning Ordinance and revocation of a building permit issued by the Building Inspector for the property located at 31 Marlborough Road for the reason that the 31 Marlborough Road lot was undersized and that the Building Inspector erred when he held the lot to be "grandfathered" for the now existing lot size requirements. The relief which has been requested may be granted upon a finding of this Board that: 1. The lot known and numbered as 31 Marlborough Road does not meet the minimum lot size of 15,000 square as now required in a R-1 zone; and 2. The 31 Marlborough Road lot is not "grandfathered" from application of the now existing minimum lot size requirement, and as a consequence thereof is not a building lot without a variance from said lot size restrictions. The Board of Appeal, after careful considerations the evidence presented at the hearing, makes the following findings of fact: 31 MARLBOROUGH ROAD 1. By deed dated November 23, 1970, Lionel J. Bouchard and Louise Bouchard acquired title to the lot at 31 Marlborough Road. 2. By deed dated January 13, 1987, Louise Bouchard conveyed title to the 31 Marlborough Road property to Robert Bouchard, Trustee of the Marlborough Street Realty Trust. 3. On September 30 1994, Robert Bouchard, Trustee conveved the 31 Marlborough Road property to its current owner, the Trapper Realty Trust. 35 MARLBOROUGH ROAD 4. The property known as 35 Marlborough Road was acquired on February 9, 1965 by Loinel J. and Louise Bouchard. 5. Loinel Bouchard died on August 8, 1972, and by operation thereof Louise Bouchard became sole owner of the 35 Marlborough Road property. 6. By deed dated November 13, 1986, Robert M. Bouchard acquired title to DECISION OF THE PETITION OF RICHARD D. ANDERSON REQUESTING REVIEW OF THE DECISION OF THE ZONING ENFORCEMENT OFFICER REGARDING THE UNDERSIZ$ LOT AT 31 MARLBOROUGH ROAD (R-1) page two 35 Marlborough Road property. •95 MAR -6 Pd ai 7. On Julv 7 1994, Robert M. Bouchard conveyed the 35 Marlborough Road property to its current owners, Richard and Cheri Anderson;, S . 35 Marlborough Road is reflected as Parcel 73 orCAATs&ssor5 ' and 31 Marlborough Road is reflected as Parcel 71 on sai6 As'se'ssors 'Map 8 9. 35 Marlborough Road and 31 Marlborough Road are adjoining lots. 10. 35 Marlborough Road and 31 Marlborough Road were held in common owner- ship commencing on November 30, 1970 by Lionel J. and Louise Bouchard. 11. 31 Marlborough Road is a lot of approximately 5064 square feet. 12. 35 Marlborough Road is a lot of approximately 13,873 square feet. 13. In 1977, the Salem Zoning Ordinance was changed. Said zoning change increased the minimum lot size from a minimum of 7000 square feet to 14 . Lionel and Louise Bouchard resided in a house situated on the property at 35 Marlborough Road. As of this date, Richard and Cheri Anderson reside in the house situated on the 35 Marlborough Road property. 15. In reliance upon a letter dated July 11, 1984 written by Mr. Macintosh, former Building Inspector of the City of Salem, holding that the lot was known as 31 Marlborough Road was a "grandfathered" lot, Leo E. Tremblay, the Zoning Enforcement Officer, issued an opinion letter dated July 13, 1993 stating that the said 31 Marlborough Road property was a "grandfathered" lot, and was therefore a building lot even though said lot did not meet the now existing minimum lot size of 15,000 square feet. 16. On November 2, 1994, the Building Inspector issued a Building Permit for 31 Marlborough Road, and thereafter construction began on the property with the pouring of a concrete foundation. 17. Mr. James Gemma, 36 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 18. Mr. Roger Legend, 64 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 19. Mr. Michael Dennedy, 4 Orleans Avenue, opposed construction of the lot known as 31 Marlborugh Road. 20. Councillor Leonard O'Leary, Ward 4, opposed construction of the lot known as 31 Marlborough Road. 21. Richard and Cheri Anderson, 35 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 22. A letter dated February 2, 1995 from Robert Ledoux, City Solicitor to Stephen Touchette, Chairman, Board of Appeals, was made part of the record. 23 . A legal memorandum on behalf of Thomas Donovan, Trustee of the Trapper Realty Trust was submitted as requested by the Board, and was made part of the record. No such memorandum was submitted on behalf of the Petitioner. 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. The lots known as 31 Marlborough Road and 35 Marlborough Road respectively merged in common ownership as of November 30, 1970. 2. As of the date of the 1977 Amendment to the Zoning Ordinance for the City of Salem, both of the lots known as 31 Marlborough Road and 35 Marlborough Road respectively were non-conforming lots in as much as DECISION OF THE PETITION OF RICHARD D. ANDERSON REQUESTING REVI3A70FFTHE ' DECISION OF THE ZONING ENFORCEMENT OFFICER REGARDING THE UNDERSIZE LOT AT 31 MARLBOROUGH ROAD (R-1) page three '95 MAR —6 P4 :10, the new Zoning Ordinance required a minimum lot size of 13,000 sq. feet. 3. As of the date of the 1977 Amendment to the Zoning Ordin04)c* (f.�=''rttfep'ilCE City of Salem, the lots known as 31 Marlborough Road and 35Ndrlb orough Road were held in common ownership; said lots having been held in common ownership since November 30, 1970. L . By virtue of the doctrine of merger, the lot known as 31 Marlborough Road is not a "grandfathered" lot, and is therefore an undersized lot, requiring a variance in order to build upon it. Therefore, the Zoning Board of Appeal voted unanimously, 3-0 in favor of the motion to grant the Petition of Richard D. Anderson seeking enforcement of the Zoning Ordinance finding that the Zoning Enforcement officer erred in deciding that the lot known as 31 Marlborough Road was a "grandfathered" lot and therefore erred in issuing the Building Permit for said property on said basis, and the Board hereby orders the Building Permit for said property on said basis, and the Board hereby orders the Building Inspector to not approve the permit to build as filed. Petition Granted February 15, 1995 Gary M. Barrett Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect 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 (gibc of ttlem, � ttss kt;us�tfs ��'s �uttra of � eul MAR -6 P 4 :10 DECISION ON THE PETITION OF RICHARD D. ANDERSON Q STLidG' REVIEW OF THE DECISION OF THE ZONING ENFORCEMENT OFFICER REGARDIN ' THE UNDERSIZE LOT AT 31 MARLBOROUGH ROAD (R-1) A hearing on this petition was held December 7, 1994 and was continued on January 18,1995 and 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 in accordance with Massachusetts General Laws Chapter 40A. Petitioner, owner of the property located at 35 Marlborough Road, was requesting enforcement of the Salem Zoning Ordinance and revocation of a building permit issued by the Building Inspector for the property located at 31 Marlborough Road for the reason that the 31 Marlborough Road lot was undersized and that the Building Inspector erred when he held the lot to be "grandfathered" for the now existing lot size requirements. The relief which has been requested may be granted upon a finding of this Board that: 1. The lot known and numbered as 31 Marlborough Road does not meet the minimum lot size of 15,000 square as now required in a R-1 zone; and 2. The 31 Marlborough Road lot is not "grandfathered" from application of the now existing minimum lot size requirement, and as a consequence thereof is not a building lot without a variance from said lot size restrictions. The Board of Appeal, after careful considerations the evidence presented at the hearing, makes the following findings of fact: 31 MARLBOROUGH ROAD 1. By deed dated November 23, 1970, Lionel J. Bouchard and Louise Bouchard acquired title to the lot at 31 Marlborough Road. 2. By deed dated January 13, 1987, Louise Bouchard conveyed title to the 31 Marlborough Road property to Robert Bouchard, Trustee of the Marlborough Street Realty Trust. 3. On September 30 1994, Robert Bouchard, Trustee conveyed the 31 Marlborough Road property to its current owner, the Trapper Realty Trust. 35 MARLBOROUGH ROAD 4. The property known as 35 Marlborough Road was acquired on February 9, 1965 by Loinel J. and Louise Bouchard. 5. Loinel Bouchard died on August 8, 1972, and by operation thereof Louise Bouchard became sole owner of the 35 Marlborough Road property. 6. By deed dated November 13, 1986, Robert M. Bouchard acquired title to DECISION OF THE PETITION OF RICHARD D. ANDERSON REQUESTING REVIEW OF THE • DECISION OF THE ZONING ENFORCEMENT OFFICER REGARDING THE UNDERSIZIE LOT AT 31 MARLBOROUGH ROAD (R-1) page two 35 Marlborough Road property. '95 MAR -6 P4 a11 7. On July 7 1994, Robert M. Bouchard conveyed the 35 Marlborough Road property to its current owners, Richard and Cheri Anderson;_ 8. 35 Marlborough Road is reflected as Parcel 73 orC! sYs9S$o'Is _ E p, and 31 Marlborough Road is reflected as Parcel 71 on sa1A'As'sessors1Map 8 9. 35 Marlborough Road and 31 Marlborough Road are adjoining lots. 10. 35 Marlborough Road and 31 Marlborough Road were held in common owner- ship commencing on November 30, 1970 by Lionel J. and Louise Bouchard. 11. 31 Marlborough Road is a lot of approximately 5064 square feet. 12. 35 Marlborough Road is a lot of approximately 13,873 square feet. 13. In 1977, the Salem Zoning Ordinance was changed. Said zoning change increased the minimum lot size from a minimum of 7000 square feet to 14. Lionel and Louise Bouchard resided in a house situated on the property at 35 Marlborough Road. As of this date, Richard and Cheri Anderson reside in the house situated on the 35 Marlborough Road property. 15. In reliance upon a letter dated July 11, 1984 written by Mr. MacIntosh, former Building Inspector of the City of Salem, holding that the lot was known as 31 Marlborough Road was a "grandfathered" lot, Leo E. Tremblay, the Zoning Enforcement Officer, issued an opinion letter dated July 13, 1993 stating that the said 31 Marlborough Road property was a "grandfathered" lot, and was therefore a building lot even though said lot did not meet the now existing minimum lot size of 15,000 square feet. 16. On November 2, 1994, the Building Inspector issued a Building Permit for 31 Marlborough Road, and thereafter construction began on the property with the pouring of a concrete foundation. 17. Mr. James Gemma, 36 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 18. Mr. Roger Legend, 64 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 19. Mr. Michael Dennedy, 4 Orleans Avenue, opposed construction of the lot known as 31 Marlborugh Road. 20. Councillor Leonard O'Leary, Ward 4, opposed construction of the lot known as 31 Marlborough Road. 21. Richard and Cheri Anderson, 35 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 22. A letter dated February 2, 1995 from Robert Ledoux, City Solicitor to Stephen Touchette, Chairman, Board of Appeals, was made part of the record. 23. A legal memorandum on behalf of Thomas Donovan, Trustee of the Trapper Realty Trust was submitted as requested by the Board, and was made part of the record. No such memorandum was submitted on behalf of the Petitioner. 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. The lots known as 31 Marlborough Road and 35 Marlborough Road respectively merged in common ownership as of November 30, 1970. 2. As of the date of the 1977 Amendment to the Zoning Ordinance for the City of Salem, both of the lots known as 31 Marlborough Road and 35 Marlborough Road respectively were non-conforming lots in as much as DECISION OF THE PETITION OF RICHARD D. ANDERSON REQUESTING REVITWr70"F�:THE="'. DECISION OF THE ZONING ENFORCEMENT OFFICER REGARDING THE UNDERSIZE LOT AT 31 MARLBOROUGH ROAD fR-11 page three '45 MAR —6 P 4 :10 the new Zoning Ordinance required a minimum lot size of 15,000 sq.feet. 3. As of the date of the 1977 Amendment to the Zoning Ordindtic'� '$sx'?'r nONi ICE Citv of Salem, the lots known as 31 Marlborough Road and 35SIdrdlbotodgh Road were held in common ownership; said lots having been held in common ownership since November 30, 1970. L. By virtue of the doctrine of merger, the lot known as 31 Marlborough Road is not a "grandfathered" lot, and is therefore an undersized lot, requiring a variance in order to build upon it. Therefore, the Zoning Board of Appeal voted unanimously, 5-0 in favor of the motion to grant the Petition of Richard D. Anderson seeking enforcement of the Zoning Ordinance finding that the Zoning Enforcement officer erred in deciding that the lot known as 31 Marlborough Road was a. "grandfathered" lot and therefore erred in issuing the Building Permit for said property on said basis, and the Board hereby orders the Building Permit for said property on said basis, and the Board hereby orders the Building Inspector to not approve the permit to build as filed. Petition Granted February 15, 1995 Gary M. Barrett Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect 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 Ctu of inlem, .{3Htts kr;u etts 'Boara of C'�tr}ie MAR —( 'd DECISION ON THE PETITION OF RICHARD D. ANDERSON UQ ISTIiv'G: REVIEW OF THE DECISION OF THE ZONING ENFORCEMENT OFFICER REGARDING' THE UNDERSIZE LOT AT 31 MARLBOROUGH ROAD (R-1) A hearing on this petition was held December 7, 1994 and was continued on January 18,1995 and 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 in accordance with Massachusetts General Laws Chapter 40A. Petitioner, owner of the property located at 35 Marlborough Road, was requesting enforcement of the Salem Zoning Ordinance and revocation of a building permit issued by the Building Inspector for the property located at 31 Marlborough Road for the reason that the 31 Marlborough Road lot was undersized and that the Building Inspector erred when he held the lot to be "grandfathered" for the now existing lot size requirements. The relief which has been requested may be granted upon a finding of this Board that: 1. The lot known and numbered as 31 Marlborough Road does not meet the minimum lot size of 15,000 square as now required in a R-1 zone; and 2. The 31 Marlborough Road lot is not "grandfathered" from application of the now existing minimum lot size requirement, and as a consequence thereof is not a building lot without a variance from said lot size restrictions. The Board of Appeal, after careful considerations the evidence presented at the hearing, makes the following findings of fact: 31 MARLBOROUGH ROAD 1. By deed dated November 23, 1970, Lionel J. Bouchard and Louise Bouchard acquired title to the lot at 31 Marlborough Road. 2. By deed dated January 13, 1987, Louise Bouchard conveyed title to the 31 Marlborough Road property to Robert Bouchard, Trustee of the Marlborough Street Realty Trust. 3. On September 30 1994, Robert Bouchard, Trustee conveyed the 31 Marlborough Road property to its current owner, the Trapper Realty Trust. 35 MARLBOROUGH ROAD 4. The property known as 35 Marlborough Road was acquired on February 9, 1965 by Loinel J. and Louise Bouchard. 5. Loinel Bouchard died on August 8, 1972, and by operation thereof Louise Bouchard became sole owner of the 35 Marlborough Road property. 6. By deed dated November 13, 1986, Robert M. Bouchard acquired title to DECISION OF THE PETITION; OF RICHARD D. ANDERSON REQUESTING REVIEW OF THE DECISION OF THE ZONING ENFORCEMENT OFFICER REGARDING THE UNDERSIZE LOT AT 31 MARLBOROUGH ROAD (R-1) page two 35 Marlborough Road property. •95 NAP -6 P4 V; 7 . On July 7 1994, Robert M. Bouchard conveyed the 35 Marlborough Road property to its current owners, Richard and Cheri Anderson. r, 8. 35 Marlborough Road is reflected as Parcel 73 ocC Asu sSors ^. p` and 31 Marlborough Road is reflected as Parcel 71 on sah As'sessors 'Map 8 9. 35 Marlborough Road and 31 Marlborough Road are adjoining lots. 10. 35 Marlborough Road and 31 Marlborough Road were held in common owner- ship commencing on November 30, 1970 by Lionel J. and Louise Bouchard. 11. 31 Marlborough Road is a lot of approximately 5064 square feet. 12. 35 Marlborough Road is a lot of approximately 13,873 square feet. 13. In 1977, the Salem Zoning Ordinance was changed. Said zoning change increased the minimum lot size from a minimum of 7000 square feet to 14. Lionel and Louise Bouchard resided in a house situated on the property at 35 Marlborough Road. As of this date, Richard and Cheri Anderson reside in the house situated on the 35 Marlborough Road property. 15. In reliance upon a letter dated July 11, 1984 written by Mr. MacIntosh, former Building Inspector of the City of Salem, holding that the lot was known as 31 Marlborough Road was a "grandfathered" lot, Leo E. Tremblay, the Zoning Enforcement Officer, issued an opinion letter dated July 13, 1993 stating that the said 31 Marlborough Road property was a "grandfathered" lot, and was therefore a building lot even though said lot did not meet the now existing minimum lot size of 15,000 square feet. 16. On November 2, 1994, the Building Inspector issued a Building Permit for 31 Marlborough Road, and thereafter construction began on the property with the pouring of a concrete foundation. 17. Mr. James Gemma, 36 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 18. Mr. Roger Legend, 64 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 19. Mr. Michael Dennedy, 4 Orleans Avenue, opposed construction of the lot known as 31 Marlborugh Road. 20. Councillor Leonard O'Leary, Ward 4, opposed construction of the lot known as 31 Marlborough Road. 21. Richard and Cheri Anderson, 35 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 22. A letter dated February 2, 1995 from Robert Ledoux, City Solicitor to Stephen Touchette, Chairman, Board of Appeals, was made part of the record. 23 . A legal memorandum on behalf of Thomas Donovan, Trustee of the Trapper Realty Trust was submitted as requested by the Board, and was made part of the record. No such memorandum was submitted on behalf of the Petitioner. 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. The lots known as 31 Marlborough Road and 35 Marlborough Road respectively merged in common ownership as of November 30, 1970. 2. As of the date of the 1977 Amendment to the Zoning Ordinance for the City of Salem, both of the lots known as 31 Marlborough Road and 35 Marlborough Road respectively were non-conforming lots in as much as DECISION OF THE PETITION OF RICHARD D. ANDERSON REQUESTING REVIXWCOgFTHE "". DECISION OF THE ZONINiG ENFORCEMENT OFFICER REGARDING TH.E UNDERSIZE LOT AT 31 MARLBOROUGH ROAD (R-1) page three '95 MAR —6 P 4 :10, the new Zoning Ordinance required a minimum lot size of 15,000 sq. feet. 3. As of the date of the 1977 Amendment to the Zoning Ordindbjcp CfpTf' Ehe0 i!CE City of Salem, the lots known as 31 Marlborough Road and 35Ndr1borough Road were held in common ownership; said lots having been held in common ownership since November 30, 1970. u. By virtue of the doctrine of merger, the lot known as 31 Marlborough Road is not a "grandfathered" lot, and is therefore an undersized lot, requiring a variance in order to build upon it. Therefore, the Zoning Board of Appeal voted unanimously, 5-0 in favor of the motion to grant the Petition of Richard D. Anderson seeking enforcement of the Zoning Ordinance finding that the Zoning Enforcement officer erred in deciding that the lot known as 31 Marlborough Road was a "grandfathered" lot and therefore erred in issuing the Building Permit for said property on said basis, and the Board hereby orders the Building Permit for said property on said basis, and the Board hereby orders the Building Inspector to not approve the permit to build as filed. Petition Granted February 15, 1995 c clt lu ( SC/l9 J Gary M. Barrett Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect 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 Chi of -'itzlem, ��Httss�tlT;usats -Boara of .Au�enl '� MAR -6 P 4 :1 ' rr TT --ii DECISION ON THE PETITION OF RICHARD D. ANDERSON REQT)ESTIi?G REVIEW OF THE DECISION OF THE ZONING ENFORCEMENT OFFICER REGARDING THE UNDERSIZE LOT AT 31 MARLBOROUGH ROAD ,R-1) A hearing on this petition was held December 7, 1994 and was continued on January 18,1995 and 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 in accordance with Massachusetts General Laws Chapter 40A. Petitioner, owner of the property located at 35 Marlborough Road, was requesting enforcement of the Salem Zoning Ordinance and revocation of a building permit issued by the Building Inspector for the property located at 31 Marlborough Road for the reason that the 31 Marlborough Road lot was undersized and that the Building Inspector erred when he held the lot to be "grandfathered" for the now existing lot size requirements. The relief which has been requested may be granted upon a finding of this Board that: 1 . The lot known and numbered as 31 Marlborough Road does not meet the minimum lot size of 15,000 square as now required in a R-1 zone; and 2. The 31 Marlborough Road lot is not "grandfathered" from application of the now existing minimum lot size requirement, and as a consequence thereof is not a building lot without a variance from said lot size restrictions. The Board of Appeal, after careful considerations the evidence presented at the hearing, makes the following findings of fact: 31 MARLBOROUGH ROAD 1. By deed dated November 23, 1970, Lionel J. Bouchard and Louise Bouchard acquired title to the lot at 31 Marlborough Road. 2. By deed dated January 13 . 1987, Louise Bouchard conveved title to the 31 Marlborough Road property to Robert Bouchard. Trustee of the Marlborough Street Realty Trust. 3. On September 30 1994, Robert Bouchard, Trustee conveyed the 31 Marlborough Road property to its current owner, the Trapper Realty Trust. 35 MARLBOROUGH ROAD 4 . The property known as 35 Marlborough Road was acquired on February 9, 1965 by Loinel J. and Louise Bouchard. 5. Loinel Bouchard died on August 3, 1972, and by operation thereof Louise Bouchard became sole owner of the 35 Marlborough Road property. 6. By deed dated November 13, 1986, Robert M. Bouchard acquired title to DECISION OF THE PETITION OF RICHARD D. ANDERSON REQUESTING REVIEW OF THE DECISION OF THE ZONING ENFORCEMENT OFFICER REGARDING THE UNDERSIZE LOT AT 31 MARLBOROUGH ROAD (R-1) cage two 35 Marlborough Road property. '95 MAR -6 P4 :1i 7 . On Juiv 7 1994, Robert M. Bouchard conveved the 35 Marlborough Road property to its current owners, Richard and Cheri Anderson. 8. 33 Marlborough Road is reflected as Parcel 73 otCidsTfs ssors " :Map `�, and 31 Marlborough Road is reflected as Parcel 71 on sapA -As'sessors 'Map 8 9. 35 Marlborough Road and 31 Marlborough Road are adjoining lots. 10. 35 Marlborough Road and 31 Marlborough Road were held in common owner- ship commencing on November 30, 1970 by Lionel J. and Louise Bouchard. 11. 31 Marlborough Road is a lot of approximately 5064 square feet. 12. 35 Marlborough Road is a lot of approximately 13,873 square feet. 13 . In 1977, the Salem Zoning Ordinance was changed. Said zoning change increased the minimum lot size from a minimum of 7000 square feet to 14. Lionel and Louise Bouchard resided in a house situated on the property at 35 Marlborough Road. As of this date, Richard and Cheri Anderson reside in the house situated on the 35 Marlborough Road property. 15. In reliance upon a letter dated July 11, 1984 written by Mr. MacIntosh, former Building Inspector of the City of Salem, holding that the lot was known as 31 Marlborough Road was a "grandfathered" lot, Leo E. Tremblay, the Zoning Enforcement Officer, issued an opinion letter dated July 13, 1993 stating that the said 31 Marlborough Road property was a "grandfathered" lot, and was therefore a building lot even though said lot did not meet the now existing minimum lot size of 15,000 square feet. 16. On November 2, 1994, the Building Inspector issued a Building Permit for 31 Marlborough Road, and thereafter construction began on the property with the pouring of a concrete foundation. 17. Mr. James Gemma, 36 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 18. Mr. Roger Legend, 64 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 19. Mr. Michael Dennedy, 4 Orleans Avenue, opposed construction of the lot known as 31 Marlborugh Road. 20. Councillor Leonard O'Leary, Ward 4, opposed construction of the lot known as 31 Marlborough Road. 21. Richard and Cheri Anderson, 35 Marlborough Road, opposed construction of the lot known as 31 Marlborough Road. 22. A letter dated February 2, 1995 from Robert Ledoux, City Solicitor to Stephen Touchette, Chairman, Board of Appeals, was made part of the record. 23. A legal memorandum on behalf of Thomas Donovan, Trustee of the Trapper Realty Trust was submitted as requested by the Board, and was made part of the record. No such memorandum was submitted on behalf of the Petitioner. 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. The lots known as 31 Marlborough Road and 35 Marlborough Road respectively merged in common ownership as of November 30, 1970. 2. As of the date of the 1977 Amendment to the Zoning Ordinance for the City of Salem, both of the lots known as 31 Marlborough Road and 35 Marlborough Road respectively were non-conforming lots in as much as DECISION OF THE PETITION OF RICHARD D. ANDERSON REQUESTING REVITWr-OF1-THE" DECISION OF THE ZONING ENFORCEMENT OFFICER REGARDING THE UNDERSIZE LOT AT 31 MARLBOROUGH ROAD (R-1) page three '95 MAR —6 P 4 :10 the new Zoning Ordinance required a minimum lot size of 15,000 sq. feet. 3. As of the date of the 1977 Amendment to the Zoning OrdingthTco 'if4r:='IE1fe0 I,E City of Salem, the lots known as 31 Marlborough Road and 35 NEir :borough Road were held in common ownership; said lots having been held in common ownership since November 30, 1970. G. By virtue of the doctrine of merger, the lot known as 31 Marlborough Road is not a "grandfathered" lot, and is therefore an undersized lot, requiring a variance in order to build upon it. Therefore, the Zoning Board of Appeal voted unanimously, 5-0 in favor of the motion to grant the Petition of Richard D. Anderson seeking enforcement of the Zoning Ordinance finding that the Zoning Enforcement officer erred in deciding that the lot known as 31 Marlborough Road was a "grandfathered" lot and therefore erred in issuing the Building Permit for said property on said basis, and the Board hereby orders the Building Permit for said property on said basis, and the Board hereby orders the Building Inspector to not approve the permit to build as filed. Petition Granted February 15, 1995 C�.o'y � r1 �l L•Ztti(� �SC/1L� Gary M. Barrett Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter LOA, 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 DATE OF HEARING / PETITIONER'///` LOCATION MOTION: TO GRANT SECOND AMENDMENT SECOND TO DENY SECOND TO RE-HEAR SECOND WITHDRAW SECOND CONTINUE SECOND ROLL CALL PRESENT GRANT DENY AMEND WITHDRAW RE-HEAR CONTINUE GARS' Y t . BARRETT ALBERT C. HILL STEPHEN O'GRADY STEPHEN TOUCHETTE NINA V. COHEN ASSOCIATE MEMBERS ARTHUR LEBRECQUE CONDITIONS: 9 � VCMS \zbaform\ mNe CITY OF SALEM - MASSACHUSETTS ROBERT A. LEDOUX Legal Department LEONARD F.FEMINO City solicitor 93 Washington Street Assistant City Solicitor soeaua3s3 Salem, Massachusetts 01970 sossztaeso February 2, 1995 Stephen C. Touchette, Chair Board of Appeals One Salem Green Salem, Massachusetts 01970 RE: 31 & 35 Marlborough Road Dear Mr. Touchette: You and the members of the Board have requested an opinion as to whether there has been a merger of the lots above-captioned. My opinion follows. In 1977, the zoning for an R-1 district in Salem changed from a minimum 7,000 square feet lot to 15,000 square feet. A review of Massachusetts General Laws Chapter 40A, Section 6 provides, "any increase in area, frontages...requirement of a zoning ordinance or by-law shall not apply to a lot for single...residential use which at the time of the recording or endorsement whichever occurs sooner was not held in common ownership with any adjoining land, conformed to the existing requirements and had less than the proposed requirement but at least five hundred square feet of area and fifty feet of frontage. Both of the lots in question were shown on a plan in 1965. both of the lots were also shown on an Assessor's Plan and on a plan drawn in 1928. At that time both lots were held in common ownership. 31 and 35 Marlborough Road were held in common ownership commencing on November 23, 1970. The lots came into common ownership in November 1970 when Mr. and Mrs. Lionel Bouchard acquired title to 31 Marlborough Road. Mr. and Mrs. Bouchard acquired title to 35 Marlborough Road in 1965. I r Stephen C. Touchette, Chair Board of Appeals February 2, 1995 Page Two Chapter 40A, Section 6 specifically talks about lots not being held in common ownership. Inasmuch as the lots were held in common ownership and each had less than the new regulations of the 1977 zoning amendment requiring a minimum lot size of 15,000 square feet (31 Marlborough Road 5064 square feet and 35 Marlborough Road 13,873 square feet, but only 70 square feet of frontage) we have a merger. These two lots merged at the time of the acquisition of 35 Marlborough Road in 1970. In order to be redivided it was necessary that the lots meet the zoning requirements at the time of redivision. These lots clearly did not meet the requirements during 1973. In order to convey the property it is necessary to seek relief from the Board of Appeals and the Planning Board (subdivision approval not required). Thank you for the opportunity to work on this interesting issue. Verxtrul you i m ROBERT A. LEDOYJX RAL/lcm File #9448.12 . . . . . . . . . . . . . . . . . . . . . . . . ���.� �' QltIU III �2SlPrit, ,=�c'i35FIL�ilISPIfS l3 _ 3 � - ,,, �BIIIILII i72 .1?pP211 J� '0 T+E EOARD OF APPEALS: Thomas M. Donovan, . Trustee e uncersigned represent that-= -- rz--=: -owner=_ of a certain parcel of land located :0 31 Marlborou h Road -onina District A1. . . . -.no said r d oarce ! afTerag ov :ecrionis ) . . . . . . . . . . . . . . . . 'assacnusetts State nuiidina Code. :lanscescribing the work proposed, have been submitted to the Inspector of Buildings in accoraance with Section IX A. 1 of the Zoning Ordinance. 31 Marlborough Road -:7, v CJ'7 N rr. T p.Y ;� S Q W w P r V7 > C') ¢:.:. (p un O cep Nr--t- rm r Fhe--App7�-ca-6ion-for�ewn��-was-decked-by-tqe-}aspeettrr--e}€$u-�l+}ings-��rr��fie�o-l-}ovrit�g- reas ^.-:- enforce The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem Zoning Ordinance and/or the Building Code and order the Inspector of Buildings to�nbt approve the application fee permit to build as filed, mae:-t,Jae-er+>orc-eme+tt--o-€ said-- ior+if+g-�y-�-awe-gad-B!�}}d�ng-Sade-wag-ld--iaxol�e-i-rnae��t-a-}--�i-€€ic�tl-t�-��►r�ne�essar�-- hardsirtp-t-a-ttre--t ndersfgned-and-re44e#-may-ire-grarrt-ed-iv-i-1 het+t--,ub�,tar+t i- l 11 --dare--- ga7iag-€!nom-t#e-ia�ea -gad-gaxpese-a#-tfie ior!dng flrdinac� a#c# Buik}inc}�oda for the following reasons: The lot at 31 Marlborough Road is an undersized lot which does not conform to the Salem Zoning Ordinance and the Building Code. See attached decision of the Board of Appeal. Thomas`M JDahovan,-Trustee of Owner/ith.. ... . . . .. . .....KluStT... . . _ . . . . . Address. 31 Marlborough Roadl Salem, , , , ,, , , ,_ Telephone. . . . . . . . . . . . . . . . . . . . . . Petitioner. .Richard D: 40ers2v. . . . . . . . . . . . . Address . , 35 Marlborough_ ROad,- $41sT. . . . . . . . . 'ate. . .November 17, 1994 Telepno (50 )745-8549 . . . . . . . . . . . . . . . . . . . By. J.`!v . . . Three copies of the application must be filed with the Secretary of the Board of ;ppeais with a check, for advertising in the amount of. . . . . . ... . . . . . . . . . . . . . . . . . . our weeks prior to the meeting of the Board of Appeals. Check payable to The venins sews. o Z" r N 'a I of 119m, � ElttssttrlrusPtts Boars of Avpeal44 q q CITY OF ,E �9 DECISION ON THE PETITION OF ROBERT BOUCHARD FOR A VARIANCE C! c-qX- 44LEA{, MASS AT 31 MARLBOROUGH ROAD (R-1) q OrA/CE A hearing on this petition was held April 27, 1994 with the following Board Members present: Stephen Touchette, Chairman; Gary Barrett, Nina Cohen and Associate Member Arthur 'Labrecque. 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, owner of the property, is requesting Variance from front yard setback to allow construction of a single family dwelling in this single family district. The Variances which have been requested may be granted upon a finding of the Board that: a. Special conditions and circumstances exist which especially affect the land, building or structure involved and which are not generally affecting other lands, buildings or structures in the same district. b. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioner. 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. 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 and counsel were advised that there were only four (4) Board members present and it would take a unanimous voted to grant their request. They were given an opportunity to continue this petition until the following week or to withdraw without prejudice and return at a later date. 2. Councillor O'Leary, Ward 4, spoke in favor of the petition. 3. The immediate abutter, Cheri Anderson, 35 Marlborough Road, spoke in opposition. She represented to the Board that she had purchased the property from the petitioners and that they were told the property had been denied a variance. Also expressed her concern regarding the closeness of the proposed dwelling to her home. DECISION ON THE PETITION OF ROBERT BOUCHARD FOR VARIANCE AT 31 MARLBOROUGH ROAD, SALEM page two 4. There is no record on file indicating there has ever been any Board of Appeal action on this property. 5. A letter from the Zoning Enforcement Officer, Leo E. Tremblay, grandfathering this property was read into the record. 6. The parcel in question is a corner lot thus having two front yard setbacks to meet. 7. The 261x 361 single family dwelling proposed by the petitioner will encroach to within six (6) feet of both Marlborough Road and Michael Road. 8. The petitioner to failed demonstrate or to meet the burden of proof relative to legal hardship. On the basis of the above findings of fact, and on the evidence presented at the hearing, the Board of Appeal concludes as follows: 1. Special conditions do not exist which especially affect the subject property and not the district in general. 2. Literal enforcement of the provisions of the Zoning Ordinance would not involve substantial hardship to the petitioner. 3. The relief requested cannot 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. Therefore, the Zoning Board of Appeal voted three (3) in favor one (1), Ms. Cohen, in opposition to the motion to grant, having failed to garner the required four affirmative votes to pass, the motion is defeated and the petition is denied. VARIANCE DENIED July 20, 1994 a Gary N[. Barrett, Vice Chairman E Board of Appeal = c �o t .7A r O m U1 t& s' Z HA co L DECISION ON THE PETITION OF ROBERT BOUCHARD FOR VARIANCE AT 31 MARLBOROUGH ROAD, SALEM page 3 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 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 PASSED 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 n.c .� (%V =i. TW Y 11-18294.1039-15.46768-LNOV CITY OF SALEM BOARD OF APPEAL 745-9595 Ext. 381 Will hold a public hearing for all persons inter- ested in the petition submitted by THOMAS DONO. VAN, TRUSTEE OF THE TRAPPER REALTY TRUST appealing the decision of the Zoning Enforcement Officer regarding the undersize lot at 31 MARLBOROUGH ROAD(R-1).Said hearing to be held WEDNESDAY, DECEMBER 7, 1994 at 6:00 P.M.,ONE SALEM GREEN,second floor. STEPHEN TOUCHETTE, Chairman November 23, 30, 1994 SN46768 . . . . . . . . . . . . . . . . . . . . . . . . �i2T1 or, 12 �flassarfinsdis �.�srai `7 '7HE BOARD OF APPEALS: Thomas M. Donovan, Trustee --e _inaersigned reoresent that are owner= •sf a certain oarcel of land located Marlborough Road t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . tree_ mina D15tr1CtR1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : --,no said oarcei affected by :ectionts ) . . . . . . . . . . . . . . . . -..c :'assachusetts State Building Cade. dans cescribing the work proposed, have been submitted to the Inspector of Buildings in >ccoraance with Section IX A. 1 of the Zoning Ordinance. 31 Marlborough Road o c '::r 07 N r ^a 0_ m o C.3 y CID 4- o v The-Apel-i-eaEi-orr-for-Permit-was-dea�ed-�Y-eke--I-nspec�or-�€-��ti-l�i�-€o-r-the-€alt loaf ng- reasensr enforce The Undersigned hereby petitions the Board of Appeals to - the terms of the Salem Zoning Ordinance and/or the Building Code and order the Inspector of Buildings to not approve the application fee permit to build as filed, -as-the--enfomemeo-t--G€ said-- Z-or}i�g-Bir—Laws-and-&afi}drrtq-Eode�rl-d-#trrel•ve-praetira��i-€�i-c-irl#�-err-vnnecy--- ha�d�.Tf�i-p-�a--ehe�irtdersi-gned-gad-gel-i-e€may-be-g�-af►ted-�v#t-ho�tE-�ubst-artt�y-�iero--- gaLingrhe-xrterri -artd-pappsse-s€-i;be-beaing-8rdianc� and 8u }d4rrg �bde for the following reasons: qjig The lot, at 31 Marlborough Road is an undersized lot which does not conform to the Salem Zoning Ordinance and the Building Code. See attached decision of the Board of Appeal. ( n," r ! r , asf M Donoy`an,/r' tee'�o POwner aTrapperGRe�2ty Tiysti i , , Address. , . . . . .. . . Telephone. . .(,508)532,-5800, , , , , , , , , , , , , , , , , , , , Richar'. Petitioner. . . . . . . . . D. Anderson . . . . . . . . . . . . Address . 35 Marlborough Roadt .Salem. . . . . . . . . -ate. . .Noyember ,l7a ,J9,9,4 „ (508)745-8549 7eleeVn -1hree copies of the application must be filed with the Secretary of the Board of Aopeais ,with a check, for advertising in the amount of. . . . . . . . . . . . . . . . . . . . . . . . . . =our :reeks ;,rior to the meeting of the Board of Appeals . Check payable to The Aenina ,News. z z — OR on: 101. 2qn?wfQS to lalloqui 961 VI raw"JIMISI 101 q0kjSzjfqGA"MY i i I . _ .. 'r:?_ .. .`.L,: .4 . _ �.' ,. ^`r K'r}V� n,�.x ..sforii?...i r" ap, 7136A. ,3 i ,z at, no NUMM JI- b. �. (9ity Of Salem. 4fassarijusetts 'Moura of Atr{teul 44 G OF DECISION ON THE PETITION OF ROBERT BOUGHARD FOR A VARIANCE C( cpr,JLFly, MASS AT 31 MARLBOROUGH ROAD (R-1) O'.P(CF A hearing on this petition was held April 27, 1994 with the following Board Members present: Stephen Touchette, Chairman; Gary Barrett, Nina Cohen and Associate Member Arthur 'Labrecque. 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, owner of the property, is requesting Variance from front yard setback to allow construction of a single family dwelling in this single family district. The Variances which have been requested may be granted upon a finding of the Board that: a. Special conditions and circumstances exist which especially affect the land, building or structure involved and which are not generally affecting other lands, buildings or structures in the same district. b. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioner. 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. 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 and counsel were advised that there were only four (4) Board members present and it would take a unanimous voted to grant their request. They were given an opportunity to continue this petition until the following week or to withdraw without prejudice and return at a later date. 2. Councillor O'Leary, Ward 4, spoke in favor of the petition. 3. The immediate abutter, Cheri Anderson, 35 Marlborough Road, spoke in opposition. She represented to the Board that she had purchased the property from the petitioners and that they were told the property had been denied a variance. Also expressed her concern regarding the closeness of the proposed dwelling to her home. DECISION ON THE PETITION OF ROBERT BOUCHARD FOR VARIANCE AT 31 MARLBOROUGH ROAD, SALEM page two 4. There is no record on file indicating there has ever been any Board of Appeal action on this property. 5. A letter from the Zoning Enforcement Officer, Leo E. Tremblay, grandfathering this property was read into the record. 6. The parcel in question is a corner lot thus having two front yard setbacks to meet. 7. The 261x 36' single family dwelling proposed by the petitioner will encroach to within six (6) feet of both Marlborough Road and Michael Road. 8. The petitioner to failed demonstrate or to meet the burden of proof relative to legal hardship. On the basis of the above findings of fact, and on the evidence presented at the hearing, the Board of Appeal concludes as follows: 1. Special conditions do not exist which especially affect the subject property and not the district in general. 2. Literal enforcement of the provisions of the Zoning Ordinance would not involve substantial hardship to the petitioner. 3. The relief requested cannot 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. Therefore, the Zoning Board of Appeal voted three (3) in favor one (1), Ms. Cohen, in opposition to the motion to grant, having failed to garner the required four affirmative votes to pass, the motion is defeated and the petition is denied. VARIANCE DENIED July 20, 1994 Gary M. Barrett, vice Chairman Board of Appeal _ c �o { .7A rn O m � Ha CO L DECISION ON THE PETITION OF ROBERT BOUCHARD FOR VARIANCE AT 31 MARLBOROUGH ROAD, SALEM page 3 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 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 PASSED 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 c a 7s rn f� T� Y!W ti g0 T CITY OF SALEM - MASSACHUSETTS ROBERT A. LEDOUX Legal Department LEONARD F. FEMINO City solicitor 93 Washington Street Assistant City solicitor 508-7453M Salem, Massachusetts 01970 50M9214990 February 2, 1995 Stephen C. Touchette, Chair Board of Appeals One Salem Green Salem, Massachusetts 01970 RE: 31 & 35 Marlborough Road Dear Mr. Touchette: You and the members of the Board have requested an opinion as to whether there has been a merger of the lots above-captioned. My opinion follows. In 1977, the zoning for an R-1 district in Salem changed from a minimum 7,000 square feet lot to 15,000 square feet. A review of Massachusetts General Laws Chapter 40A, Section 6 provides, "any increase in area, frontages...requirement of a zoning ordinance or by-law shall not apply to a lot for single...residential use which at the time of the recording or endorsement whichever occurs sooner was not held in common ownership with any adjoining land, conformed to the existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage. Both of the lots in question were shown on a plan in 1965. both of the lots were also shown on an Assessor's Plan and on a plan drawn in 1928. At that time both lots were held in common ownership. 31 and 35 Marlborough Road were held in common ownership commencing on November 23, 1970. The lots came into common ownership in November 1970 when Mr. and Mrs. Lionel Bouchard acquired title to 31 Marlborough Road. Mr. and Mrs. Bouchard acquired title to 35 Marlborough Road in 1965. Stephen C. Touchette, Chair Board of Appeals February 2, 1995 Page Two Chapter 40A, Section 6 specifically talks about lots not being held in common ownership. Inasmuch as the lots were held in common ownership and each had less than the new regulations of the 1977 zoning amendment requiring a minimum lot size of 15,000 square feet (31 Marlborough Road 5064 square feet and 35 Marlborough Road 13,873 square feet, but only 70 square feet of frontage) we have a merger. These two lots merged at the time of the acquisition of 35 Marlborough Road in 1970. In order to be redivided it was necessary that the lots meet the zoning requirements at the time of redivision. These lots clearly did not meet the requirements during 1973. In order to convey the property it is necessary to seek relief from the Board of Appeals and the Planning Board (subdivision approval not required). Thank you for the opportunity to work on this interesting issue. Very truly yours, P ROBERT A. LE OUX RAL/lcm File #9448.12 Lif idem, '-ttssachuBetts is s -6onra of E'�u�tettl January 24 , 1995 Robert LeDoux City Solicitor City of Salem RE: 31 & 35 Marlborough Road Dear Bob: On January 13, 1995, the Board of Appeals voted to continue the petitions of Richard D. Anderson and Thomas Donovan, Trustee of Trapper Realty Trust concerning the lots located at 31 Marlborough Road and 35 Marlborough Road, respectively. At that time, it was decided to seek the opinion of the City Solicitor as to whether the doctrine of merger applies to these lots. If the lots did not "merge", the questions arises as to whether or not they enjoy "grandfather" status and are, therefore, buildable. It would greatly assist the Board if you would review this matter and provide us with your opinion prior to our next meeting on February 15, 1995. It would also help if you were to include a brief explanation of the doctrine of merger (if that is possible) . I have enclosed two memos used by the Building Inspector's office for your review and comment. I look forward to your reply. Very truly yours, Stephen C. Touchette Chairman, Board of Appeal cc: Gary Barrett Albert Hill Nina Cohen Stephen O'Grady Arthur LaBrecque U i 'r BrrILD";G ICS:ECTOP.'S OFFICE FEBRUARY 25, 1980 N0S-C0"F0RME;G LOTS Changes in the Salem Zoning Ordinance on May 5, 1977 and legislative changes in the Zoning 1,ct (Chap 403) in April 20, 1979 have created some confusion in regard t non-conforming residential lots. It is hoped the follocring outline will help in under standing the language of Section VIII B of the ordinance and provide assistance for determining if such lot or lots may be built upon. Clear understanding of any regulation is contingent on knowing the meanings of th i ..terms or words used. Therefore let us define some of thea. a. "ilon-conforming" (in this context) means that the piece of land in question does not meet the minimum lot dimension at the street or does in not have the necessary number of square feet oritli/its boundaries as required by the Ordinance. b. "Time of recording or endorsement" is that date on which the lot or lots were created. "Recording" refers to the date on which a plan showing the lot was filed with the Essex County Registry of Deeds. This date is generally ginal document. "Fndoreemt2 on ' T_e£or� to the date the S--Ie-,,t sho:m on the ori Planning Board signatures of approval are written on the plan. If the lot was created prior to 1953 there will be no endorsement. Now putting Section VIII B.1 into language the average person can understand the Ordinance says: A lot does not have to meet the present requirements for frontage or area if it was created prior to May 5, 1977; now contains at least 5,000 square feet; and geFurther the ocmer of the lot on the date that has 50 or more feet of fronta . it was created cannot have c:med eny of the adjoining lots. Separate o-.mership c. of today has no bearing on an exemption. _Fag i 1% If there was common o.mersnip with adjoining lots on the date which the lot was created the present regulations do not apply if the lot was created prior to May 5, 1977; it has at least 7,500 square feet of land; and a minimum of 75 foot frontage. ?]o more than three such adjoining lots may be developed. This coarson ocmership exemption shall apply only until ?lay 5, 1982. Ever. if your lot had received prior "endorsement" by the Salem Planning Board it must meet these new requirements. It is the responsibility of the applicant to satisfy the Building Inspector as to ownership on the date the lot or lots were created. Generally a copy of the plan can be obtained from the Registry of Deeds on Federal Street in Salem. This plan should indicate date of recording and the adjoining land ocmers. I£ your lot was created by sub-dividing a large area of land it is almost sure to have been held in common owner- ship with adjoining lots. There may also be certain instances where a lot was created deed. In this case it is suggested you contact.your attorney to aid in supplying the squired proof. _ If your property does not meet any of the above conditions it will be necessary i go before the Board of Appeals for a variance to build upon your lot. Applications m: be obtained from the Building Inspector at One Salem Green. of iaiem, 4Cassad ugettg public propertp Department ISuiibing Department Ont obattm Orten 735-9595 taxt. 380 William H. Munroe Director of Public Property Inspector of Buildings Zoning Enforcement Officer DEpARTDIFSTP POLICY GRANDFATBER LOTS RBOUIREM= in order to determine whether a lot qualifies for the separate lot protection found in Chapter 40-A, Section 6, MGL, the following must be answered in writing by our legal council. 1. Does the lot have a least 5,000 square feet and 50 feet of frontage on an improved street? 2. Is the lot located in an area Zoned for single or two family use? 3. Did the lot conform to existing Zoning when legally created? 4. Does the most recent instrument of record prior to the effective date of Zoning change fran which the exemption is sought, August 27, 1965 show that the lot was separately awned ? 5. When conveyed after the Zoning change, has the lot retained it's separate identity by continually being described as a separate and distinct lot? 6. Has the lot been separate lot and not available for use in connection with adjoining land on the effective date of the Zoning requirements, August 27, 1965, which made the lot substandard ? To be entitled to Grandfather Protection under the Provisions of Chapter 40-A Section 6, ZNUL, a yes answer is required of all the above. I ` N (fitu of '$tt1em, Tf agsacljusetts \• Potts of 'A}rpettl We the undersigned do hereby waive all rights with regard to time requirements for the Zoning Board of Appeal relative to hearing the following application: Property Location 31 m A fz � 6 o 2 ° v 6 4 2 �, Original Meeting date f New Meeting date 2 J S� Signature of Petitioner and/or his/her Representative: JOHN R. KEILTY, COUNSELOR AT LAW 40 LOWELL STREET TELEPHONE (508) 531-7900 FACSIMILE (508) 531-2479 PEABODY, MA 01960 January 6, 1995 Board of Appeals City of Salem 2 Salem Green Salem, MA 01970 Attn: Steve Touchette, Chairman RE: PETITION OF RICHARD& CHERI ANDERSON PROPERTY: 31 MARLBOROUGH STREET, SALEM, NA Dear Mr. Touchette: Pursuant to the Board' s request, enclosed please find Memorandum of Law together with accompanying documents concerning the above-captioned matter. Should you have any questions or comments, please contact me. Very truly yours, o n i t , E ire JRK/emb Enclosures cc: Robert LeDoux, Esquire City Solicitor A e. IN RE: Appeal from decisions of the Building Inspector PETITIONERS : Richard Anderson and Cheri Anderson PROPERTY: 31 Marlborough Street, Salem, Massachusetts MEMORANDUM OF LAW STATEMENT OF FACTS The Petitioners, Richard and Cheri Anderson are the owners of the property located at 35 Marlborough Street, Salem, Massachusetts . The Petitioners took title to this property by way of a deed from Robert Bouchard dated July 7, 1994 . The Petitioners ' property at 35 Marlborough Street, Salem, Massachusetts is shown as Parcel 73 on Assessors ' Map 8 and as Lots 62 and 657 on the subdivision plan 11802-25, Sheet 2, dated January 4, 1965 as filed with Certificate 34875, (a copy of these plans are attached hereto and marked as Exhibit A and B respectively) . On September 30, 1994 the Trapper Realty Trust purchased the property known as 31 Marlborough Street, Salem, Massachusetts from Robert Bouchard, Trustee of the Marlborough Street Realty Trust. The property at 31 Marlborough Street is shown as Parcel 74 on Assessors' Map 8 and as Lot 61 on the Subdivision Plan, described as 11802B , Sheet 2, dated May 5, 1928 as filed with Certificate 7179. (A copy is attached hereto as Exhibit C) . Subsequent to this purchase, a building permit was obtained for the construction of a single family dwelling on the property at 31 Marlborough Street, Salem, Massachusetts . Sometime after construction had begun, the Petitioner requested the building inspector revoke . the building permit previously issued at 31 Marlborough Street. The building inspector failed to act in accordance with the Petitioner's request and on November 17, 1994 the Petitioners took an appeal of the building inspector' s decision to the Board of Appeals . On December 7, 1994, a hearing on the Petitioner' s appeal was held. The Petitioners asserted that 31 Marlborough Street was an undersized lot and was not entitled to ` "grandfather" status . Representatives of the Trapper Realty Trust disputed the Petitioner' s claims and set forth the reasons for which 31 Marlborough Street is a buildable lot and suggested to the Board that if 31 Marlborough Street does not enjoy "grandfather" status then neither can the Petitioner' s property at 35 Marlborough Street . The matter was continued to January 18, 1995 for the parties to prepare a Memorandum of Law concerning the Doctrine of Merger of lots, obtain a detailed history of ownership to both properties . These items to be submitted to the Board and to the City Solicitor. TITLE HISTORY In 1928 Frederick H. Griswold owned several large tracts of land off Highland Avenue and Marlborough Street in Salem, Massachusetts . Included in this land were 31 and 35 Marlborough Street, Massachusetts . He registered these parcels and filed a Plan in the Land Court subdividing the property into several hundred lots . The original Plan is described as Plan 11802B and dated May 5, 1928, (a copy of this Plan is attached hereto as Exhibit C) 35 Marlborough Street On September 10, 1928, Frederick I . Griswold conveyed Lot 62 and Lot 63 as shown on Exhibit C to Palmerino Musto, (see Deed attached hereto as Exhibit D) . Later on November 28, 1928, Frederick I . Griswold conveyed Lot 65 and Lot 67 to Marie Musto, wife of Palmerino Musto, (see Deed attached hereto as Exhibit E) . After the death of Palmerino and Marie Musto, their heirs, Edith C. LaBelle, Carmella Carvalaro, Catherine Legere, Mary Bokozanski, Florence Tamborini and Evelyn Hahn took title to the property described as Lot 62, Lot 63 and Lot 65 on the aforementioned Plan, (see Certificates of Title attached hereto as Exhibit F & G) . In 1957 the aforementioned heirs conveyed Lots 62, 63 and 65 to Gerry W. Bessom and Francis Bessom, (see Certificates of Title attached hereto as Exhibits H & I) . By Plan dated January 4, 1965, (Exhibit B) , Lot 63 and Lot 65 were subdivided to create Lot 657 and Lot 658 . Since that time 35 Marlborough Street has consisted of Lot 62 and Lot 657 . After this subdivision, on May 8, 1965 Lot 658 was conveyed to Donald Masella and Jean L. Masella, (see Certificate attached hereto as Exhibit J) . In February of 1965, Lionel J. Bouchard and Louise J. Bouchard, husband and wife as tenants by the entirety, purchased the property described as Lot 62 and Lot 657, (see Certificate attached hereto as Exhibit K) . By Deed dated November 13, 1986, Louise J. Bouchard, surviving spouse of Lionel J. Bouchard, conveyed the property at 35 Marlborough Street to her son Robert Bouchard, (see Deed and Certificate attached hereto as Exhibit L & M, respectively) . On July 7, 1994, Robert Bouchard conveyed this property to the current owners, Richard and Cheri Anderson, (see Deed attached hereto as Exhibit N) . 31 Marlborough Street By Deed dated November 3, 1928, Frederick I . Griswold conveyed Lot 61 as shown on.-.Plan marked Exhibit C to Guiseppe Guerriero, (see Deed attached hereto as Exhibit O) . After Mr . Guerriero' s death, his heirs conveyed Lot 61 to Lionel J. Bouchard and Louise J. Bouchard, husband and wife as tenants by the entirety. This Deed was dated November 23, 1970, (a copy of the Deed is attached hereto as Exhibit P) . On January 13, 1987, Louise J. Bouchard (Mr. Lionel J. Bouchard died on August 8, 1972) , conveyed this property to Robert M. Bouchard, Trustee of the Marlborough Street Realty Trust, (see Deed attached hereto as Exhibit) . On September 30, 1994, Robert M. Bouchard, Trustee, conveyed the property to the current owner, The Trapper Realty Trust, (a copy of the Deed is attached hereto as Exhibit R) . ISSUE Is the property located at 31 Marlborough Street a buildable lot by way of being "grandfathered" and if not, is the property at 35 Marlborough Street also non-conforming. ARGUMENT In reviewing the title to these properties, so as to then apply the dictates of M.G.L.c. 40A, s 6 (merger) , it appears that Lot 61 was shown on the 1928 Land Court Plan and was created prior to the adoption of zoning in the City of Salem. M.G.L. c, 40A, s 6 sets forth in Paragraph 4 as follows : Any increase in area, frontage, width, yard or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage. In applying this statute to my clients lot, it is clear that the use is residential and we have at least fifty (50 ' ) feet of frontage and at least five thousand (5, 000) square feet of land. The issue left to be decided is whether this lot was held in common ownership with contiguous property. As such, it is necessary to look at what the courts have defined as common ownership. The Court in Sieber v. Zoning Board of Appeals of Wellfleet, 16 Mass . App. Ct . 935, 454 Ne2d 108 (1983) , clarified this section of M.G.L.0 40A, s 6, stating that the test of whether a lot in question was described and held as a lot in separate ownership from an adjoining lot is determined by virtue of a Deed or any other instrument recorded prior to the effective date of the prohibitive zoning charge . This application was later used by the Supreme Judicial Court in Adamowicz v. Ipswich, 395 Mass . 757, 481 Ne2d 1368 (1985) , the Court in that case set forth that the controlling document was the most recent instrument of record prior to the effective date of the zoning change The case law in this area is clear, the status of the lot immediately prior to the zoning change is the controlling factor, even if previously a recorded instrument might reveal that the lot at one time was held in common ownership. It seems the Petitioner' s contention is that these lots were held in common ownership and assuming they are correct, we must first look to the period of time that the lots came to be held in common ownership. The earliest date this could have happened is November 23, 1970 when Mr. and Mrs . Bouchard purchased Lot 61 . Also, assuming that the subsequent conveyances to their son Robert (Lot 62 and Lot 657) and to Robert as Trustee (Lot 61) . continued to maintain common ownership, then I suggest to you that we must look to the status of the Lot ( 61) at the time of the zoning change or amendment . In this case the Zoning Enforcement Officer has indicated that there has been no zoning changes in that area since 1965, in such a case, this would be the controlling date . Reviewing the title of the lots as of that date shows that Lot 61 and Lot 62 were in fact held in separate ownership, and as . such, the lots would retain their "grandfather" status . This position is supported by Carciofi v. Board of Appeals of Billerica, 22 Mass . App. Ct . 926, 492 N.E . 2d. 747 (1986) where the Court held that even if separate lots came into common ownership after a zoning amendment, they would remain buildable if they had been separately owned at the effective date of the zoning change . If, however, the lots merged for purposes of zoning as a result of any zoning increase, as suggested by Petitioner, then I would suggest that the same doctrine of merger that renders my client ' s lot unbuildable would also render the Petitioner' s property non-conforming. If the Petitioners ' assertions are correct, then prior to July 7, 1994, these two properties, 31 Marlborough Street and 35 Marlborough Street had merged and for zoning purposes were considered one lot with one hundred ninety-nine (199 '+) feet more or less of frontage and approximately nineteen thousand five hundred twenty-nine (19, 529) square feet of land. By the conveyance to the Petitioners in July of 1994, the property at 35 Marlborough Road was left with only thirteen thousand six hundred sixty-three (13, 663+) square feet of area and approximately sixty-five (65' ) feet of frontage, both are less than the minimum requirements in this zoning district. It stands to reason that if the Petitioner' s theory of merger is correct, not only is my client' s lot non-conforming but so is the Petitioners . CONCLUSION We respectively suggest to the Board that the property at 31 Marlborough Street is a buildable lot, that the doctrine of merger should not apply, and if so it must be applied equally to the Petitioner' s property at 35 Marlborough Street . Respectively submitted, dZ Jo R. K6Vty (TMD1s.c/Ami/Memo1aw.sam) -�/ : Pktc�L 73 r s 35 MAW.boom r �Of ir° JAG 1• rte/ rr ;e 10 " —/ G /- --�— t1° -" 9p 0000 gStON - y ! �lb $ 0 Y 9961 vi •i. ° 6 p tt� tt t �1•� - `.` 1 6 � a6 10040 " � 9 .a1111Ji� O40�" (,woo `. ;01 -tit- V o � 9 I, '{ 61 PG _ jI 6 ;g 996 E 40 8 95 * '" , 961 1,6 5 6B to oo �..�. a►Ll4y 12� S O •p0.o . � t — .t4 T— II — 9316 T �xh�bA -L M B. Iii1ton & SM. j IA Cy 1.Rod" 61 651 1. A 64 V, 0 M Id 2 74 G 657 155.38 . I All t7 62 -I'vIsion of Lots 63 E., 65 on Plan 11PO25 Sheet i It,.A 'lith C(.1-t. cT TitIc No. 71-79 DtLti-ict of I.=un County I .Sep8r4fft 4CftifICItel Of 600 MOY be 'S$Ued f0f land shown herem as I ais.,Cf,7.$.C.6,ft---------------- ay the court, LAND RIEGISTRA TION ere.2.1061 $ulf M;S An S a feet b ndcrm,foolfift,k rz&A 1912 /8Q2 W ��o.00 , ,i •�3 ` � � �� � i" SyyB ' S'fl• s ;yUJ'JO�/NJ c ti ,g.; i� of ' 4k 'F -as m s ttr7 4 Rf3CL1Vit' Gfr ....................................I...... ...... ....................I...............................I........ .............I..................................................................................................................................... ........ ..........................................I.....I....................I................................................................11.................... ­......................................................................................................._..................................................... of ...Saliglw...........................................................................BAP._'1;.............. County, Massachusetts bfinr min7—itd, for consideration paid,grant to........ ............... ........................................................... .......... ...... ..............I.,..... ............. .......... ........ .......... .......­­­­­.................. , 'c 0 ith Warnaup Internal the hand in !:.I n� F7 rCcrlrk -L an d 1-11 i7 fcllnvo East(1 ly r 11 r su j) t r i, 7;.! c Ot! do/lco (nr?_:n) T'rr C 1 y , 17 Lu , ni,1 d -C,; I r! -;:n i, r o i,i 4-- 1 ::j I,L,' C 11 1. LI t is 11_ 1 11 1 1" !A _1,1c 10-,: 1; Z,apnre 0 1 r f ?Ck I L111-. t r L.jl�'Jl JJ_ a t."- t I X0 and f lv, "I'I I'll'i'-I Vill't 7-FOUr f" "" -I I I lL LO pi,n. All cf said !cui,dalion In- c-'r. st� cli Plan n:u.d-:­! 11COP-A. fil,flJV: l"I'tcl, �.cj,; PI-L":1 �`.. ,�'n 1,, 5,1d Tl,-i;nn A. Apply'- al E. Ai,rll 12 In"P I L 1 col fl It, 11 '_rrl JCC ............................ ............I u,.. ...............wife of said grantor ............... release to said grantee all rights of(lower and homestead and other interests therein. Witntoo...z,.w.b..&.ad seaLthim,...Lr:.. .:.................day .........19 ....................................... .......... ............... ......... OMMOnlutAlti) of Magitacbusthtg as. ... ..............19 J. Then personally appeared the above named..... 1!iltbilll-jw................... ..........I.........................-..... ................... .1................................................................................ and a,ka.wIod,,d the foregoing inet"nIlat to be... act and deed, before me My cnaanbei6n expires ......... 19 ............................... ............I......* .......-.........I...............-...............-..................... ............................... .......... ........ ................ .............................I.........I.................. ..........I.......... of ....Zau . ............Easex............ County, Massachusetts consideration paid.grant to .11HU'ried ...... Must 0, .......... ...... ......... .................. ................. ........ of 89..P.ins... with taitramp (obtumd the land in SAlegf,...EEse.x County, red............... of...Lot..A...on..Flan... 11802 A. drawn by Thomas A, Appleton C. go, dated April 12, 1928, as modified and approved by the court, filed with the Land Registration Office, a copy of A portion of which is filed with Certificate of Titlr #7179 in said Registry. 1-1 Said parcel of land being bounded as follows Eas terly by Marlborough Street, an shown on said plan One hundred fifty- four and 45/100 (154.45) feet; South-easterly by lot numbered 63 as shown on said d plan, One hundred three and 96/100 (103.96) feet South-westerly by 64-66-68-69-70- as shown on said plan, Two hundred thirty-five and 64/100 (235.64) feet. Northerly by lot numbered 71 as sheen on said plan,One hundred oeventy- covert and 96/100 (177.96) feet. Isabella.-J.-...GrIPYQlds......................wife of said grantor ................ ........................................­­.........-..... ............................. release to said grantee all right.,of dower and homestead and other interests therein. Wilmso our...h.mb.nd se.1sthis..f4urtsentb....da,of Nov,, ,p,Ve,,._j9 28. ............... commatitucaltb at masifirebusette Essex as. ......... ....... 'Novelpl?g.r. .............1928. Then personally appeared the above named ......... ......................... .................................. ................... I acknowledged the foregoing instrument to be-1116-free act and deed, before mo ........ Justice of of the Peace. My Commission expires ..... :A 4 ji transfer (yertifuttte of Of llle. No. 27058 7582 , originally Registered March 6, 1928 , in ,] From Transfer Certifies, No. � ii Southern Regisnv District of Essex County. h Registration Back 27 Page 7091 (or he , Jlig IB i I (&er1jfg that Edith C. LaBelle, married to Irving A. LaBelle, of Lynn, and . 1 Carmella Gavallaro not married Catherine Le ere, married to Henry Legere, Mary Bokozae el q married to Alfred ho'gozanski, Florence Tamborini, married to Richard W. Tamballh of and Evelyn Hahn, married to Gilbert HfAgt Counryof Essex and Commonwealth of Mauachuseas, j Swampscott p ' ISI se. A". - are he owners in fee simple t1�n�y e each of one undivided sixth part, l� of that certain parcel of land situate is Salem m the County of Essex and said Commonwealth, bounded and described as follows: a, EASTERLY by Marlborough Street one hundred eighteen and 40100 (118.40) feet; y SOUTHEASTERLY by lot 61, as shown on plan he mentioned, one hundred six and 74100 .'17 (106.74) feet; SOUTHWESTERLY by Mussolini Road one hundred five and 56100 (105.56) feet; and NORTHWESTERLY by lots 64 and 65, as shown on said plan, two hundred three and 96100 (203.56 feet. pian All of said boundaries are determined by the Court to be located as shown 1928,pan modiFinumbered ^ 11802-8, drawn by Thomas A. Appleton, Civil Engineer, dated April t12 of a portion of which approved by the Court, filed in the Land Registration Office, copy is filed with Certificate of Title #7179 in said Registry, and the abov e,described land is i -t shown as Lots 962 and 63,-sheet 2, on last mentioned plan. i 6y r• And it is further certified that said land is under rhe operation and provisions of Chapter 185 of the General Laws, and that the tide of said Edith C. LaBelle, Carmella Cavallaro, Catharine Legere, Mary _ Bakozaaski, Florence Tamborini and Evelyn Hahn, F to said land is registered under said Chapter, subject, however, to any of the encumbrances mentioned in Section i fQ, forry-six of said Chapter,which may be subsisting,+nd-wbleoe+lrtstes 7 WrrNasa,JOHN E. FENTON, Esquire,Judge of the Land Court, at Salem, in said County of Essex, the third day of December in the year nineteen hundred and fifty seven °1 2 o'clock and 57 minutes in the after noon- Attest, with the Seal of said Court, 2�� .ZG ...'y ..... . sutant Recorder. _ . transfer Tvirtiftratr of Oitle. No. 27056 From Transfer Certificate No. 7583 . Originally Registered March 6, 1928 , in Reel srranor, Book 29 Page 7091 for the Southern Registry District of Essex County. Qi)is is to (Qertift�J char Edith C. LaBelle, married to Irving A. LaBelle, of Lynn, and Cannella Covallaro, na married, Catherine Legere, married to Henry Legere, Mary Bokozanski, E married to Alfred Bokozanski, Florence Tamborini, married to Richard W. Tamborini, and Evelyn Hap 11, married to Gilbert Hall Counry of Essex and Commonwealth of Massachusetts, o Swampscott mansiad-to 1 are he owner s in fee simple each of one undivided sixth part, of that certain parcel of land situate in Salem, in du County of Essex and said Commonwealth, bounded and described as follows: EASTERLY by Marlborough Street fifty nine and 20100 (59.20) feet- SOUTHEASTERLY by lot 639 as shown on plan hereinafter mentioned, one hundred three and 96/100 3 (103.96) feet; ' SOUTHWESTERLY by lot 64, as shown on said plan, fifty and 41100 (50.41) feet; and NORTHWESTERLY by lot 67, as shown on said plan, one hundred twenty nine and 21100 (129.21) feet. All of said boundaries are determined by the Court to be located as shown upon plan numbered 11802-B, drawn by Thomas A. Appleton, Civil Engineer, dated April 12, 1928, as modified and approved by the Court, filed in the Land Registration Office, a copy of a portion of which is y" filed with Certificate of Title P7179 in said Registry, and the above described land is shown i as lot 465, sheet 2, on last mentioned plan. q q h NGS yj��z t•40 Y I 1 And it is further certified that said land is under the.,nawn and provisions of Chapter 185 of he Genual Laws, and that the title of said Edith C. LaBelle, Carmella Cavallaro, Catherine Legere, Mary Bokozanski, Florence Tamborini and Evelyn Hahn, to said land h registered under said Chapter, subject, however, to any of the encumbrances mentioned in Section nu,ix of said Chapter, which may be subsisting, se«Leubje<ealao-to- W.,me,JOHN E. FENTON, Esquire,Judge of the Land Court, at Salem, in said County of Essex, the third day of December in the year nineteen hundred and fifty seven at 2 o'clock and 56 minutes in the afternoon. Attest, with the Seal of said Count, ,OG y� ._....... Ac[in6 vismn[ Rnordn. (' i Grander Tertiftrate o 01 We. No. 27059 From Transfer Certificate No. 27058 , Originally Registered March 6, 1928 , in Registration Book 29 Page 7091 for the Southern Registry District of Essex County. QIjis ie to (¢eriifg that Gerry W. Bessom and Frances Bessom, his wife, of Swampscott in the County of Essex and Commonwealth of Massachuaeaa, asuakdto- are the owners in fee simple as tenants by the entirety, of that certain parcel ofland situs[,in Salem in the County of Essex and said Commonwealth, bounded and described as follows: EASTERLY by Marlborough Street one hundred eighteen and 40/1,3u 0 (118.40)hundred feet;six 74100 SOUTHEASTERLY by lot 6l, as shown on plan hereinafter mentioned, (106.74) feet; SOUTHWESTERLY by Mussolini Road one hundred five and 56100 (105.56) feet; and NORTHWESTERLY by lots 64 and 65, as shown on said plan, two hundred three and 96/100 (203.96) feet. All of said boundaries are determined by the Court to be located as shown upon plan numbered 11802-B, drawn by Thomas A. Applston, Civil Engineer, dated April 12, 1928, as modified and approved by the Court, filed in the Land Registration Office, a copy of a portion of which is filed with Certificate of Title #7179 in said Registry, and the above described land is {{{... shown as lots #62 and 63, sh9ett2, on last mentioned plan. I -0 GP �\ P ao, y�G 3 t And it is further certified that said land is under the operation and provisions of Chapter 185 of the General Laws, and that the tide of said Gerry W. Bessom and Frances Bessom to said land is registered under said Chapter, subject, however, to any of the encumbrances mentioned in Section J forty-six of said Chapter, which may be subsisting,and-ephjecraho'm y r. r. of the Land Court, at Salem, in said County of Essex, t§ Wrmeas,JOHN E. PENTON, Esquire.judge p the third day of December in the year nineteen hundred 1'j + and fifty seven at 2 o'clock and 57 mmore, in the after noon.' fl Attest, with the Seal of said Court, _._ (,,�Qt � .. ... VAcnne -. .tliasstant Recarden Cransfer Tertifrate of Cottle. No.27057 From Transfer Certificate No. 27056 Originally Registered March 6, 1928 in is f I Registration Bonk 29 Page 7091 for the Southern Registry District of Nixes County. �a j u�his in to geetify that Gerry W. Bessom and Frances Bessom, his wife, ,a I 1 of Swampscott in the County of Essex nd Commonwealth of Massachusens E� wrsiad�a E` are the owners in fee simple 1 as tenants by the entirety, of that certain parcel of lend situate in Salem ,n the County of Essex and said Commonwealth, bounded and described as follows: EASTi Rl.e by Marlborough Street fifty nine and 20/100 (59.20) feet; SOUTHEASTERLY by lot 63, as shown on Alar hereinafter mentioned, one hundred three and 96/100 (103.96) feet; SOUTHWESTERLY by lot 64, as shown on said plan, fifty and 41100 (50'.41) feet; and h0RTHWESTFRLY by lot 67, as shown on said plan, one hundred twenty nine and 21/100 (129.21) e feet. All of said boundaries are determined by the Court to be located as shown upon plan numbered _ 1180%B, drawn by Thomas A. Appleton, Civil Engineer, dated April 12, 1928, asmodified and 1 approved by the Court, filed in the Land Registration Office, a copy of a portion of which is filed with Certificate of Title #7179 in said Registry, and the above described land is show ` as lot #65, sheet 2, on last mentioned pian. � I I I, ii i And it is further certified that said land u under h er te operation a �I I' pe and provisions of Chapter 185 of the General Laws, and that the title of said Gerry W: Bessom and Frances Bessom to said land is registered under said Chapter, subject, however, to any of the encumbrances mentioned in Section - forty-six of said Chapter,which may be subsisting, and-saweat_ales-ts Worwass,JOHN E. FENTON. Esquire,Judge of the Land Court, at Salem, in said County of Essex, .�„ ISI the third day of December in the year nineteen hundred and fifty seven at 2 o'clock and 56 minutes in the after l F nopn. Attest, with the Seal of said Court, p� An ng. umnt Reorder. _, Foam E Trangfer Certifirate of Tidt. No. 35140 .t From Transfer Cerd6eate5No.s 27057 6 , Originally Registered March 6, 19 28 27059 Registration Book 29 Page 7091 for the Southern Registry District of Essex Counry. I. I abis;to to Certiflo that Donald Masella and Jean L. Masella, his wife, of Lynn in the County of Essex and Commonwealth of Massachusetts, 1 .aeseia4- are the owners in fee simple 'I 'z as tenants by the entirety, of thatcertain parcel of land sit mu,In Salem in the County of Essex and said Commonwealth,bounded and described as follows EASTERLY by Marlborough Road (formerly Marlborough Street) one hundred seven and 60/100 (107.60) feet; SOUTHERLY seventy seven and 48/100 (77.48) feet, and SOUTHEASTERLY twelve and 23/100 (12.23) feet by lot 657, as shown on plan hereinafter mentioned; I SOUTHWESTERLY by lot 64, as shown on said plan, fifty and 41/100 (50.41) feet; and ffI NORTHWESTERLY by lot 67, as shown on said plan, one hundred twenty nine and 21/100 (1'29.21) ti ' feet. p I, All of said boundaries are determined by the Court to he located as shown upon plan numbered 2z' 11802-25, drawn by W. B. Hilton 8 Son, Surveyors, dated January 4, 1965, as modified and approved by the Court, filed in the Land Registration Office, a copy of a portion of which { 1 is filed with Certificate of Title #34875 in said Registry, and the above described land is 1 shown as lot #658, on last mentioned plan. Ilf , i ,I I And it is further certified that said land Is under the operation and provisions of Chapter 185 of the General j - Laws,and that the title of said Donald Masella and Jean L. Masella to said land is registered under said Chapter, subject, however, to any of the encumbrance mentioned in Section forr,six of said Chapter, which may he subsisting, eta— + Wrtmmss,JOHN E.FENTON,Esquire,Judge of the Land Court,at Salem, in said County of Essex, III y the to nth day of May in the year nineteen hundred ,'II i $, and sixty five .at 11 o'clock and 30 minutes In the fore noon. Attnt, with the Seal of said Court. / 1 + Actine•Ass4t Recorder. �1 li I 19rangfer Certificate of 19itie. No. 34675 ti Transfer Cerdfiease No. 27059 , Originally Registered March 6, 1928 •in n Book 29 Page 7091 for the Southern Registry District of Ease. County. doi „? $b(6 i6 t0 6ertftp that Lionel J. Bouchard and Louise J. Bouchard, his wife, . the County of Essex and Commonwealth of Massachusetts, $. Salem In are the owners in fee simple tenants by the entirety, I, ho certain parcel s of land situate in Salem the County of Essr. and said Commonwealth,bounded and described as follows I j PLY by Marlborough Street (now called Marlborough Road) fifty nine and 20/100 (59.20) feet;,�. EASTERLY by Lot 61, as shown on plan hereinafter mentioned, one hundred six and 74/100 (106.74) feet; feet and #,�\ TERLY by Mussolini Road fifty two and 7B/100 (52.78) 1 -{ikpt STFRU by lot 63, as shown on said plan, one hundred fifty five and 35/100 (155.35) feet. of said boundaries are determined by the Court to he located as shown upon plan numbered -B, drawn by Thomas A. Appleton, Civil Engineer, dated April 12, 1928, as modlf sed and by the Court, flied in the Land Registration Office ndathe above y of adescribed landportion Of s is 1� .filed with Certificate of Title 97179 In said Registry, n as lot 9L2, sheet 2, on last mentioned plan. �I ,1 5TERLY by idussolini Road fifty two and 78/100 (52.78) feet; hWESURLY by lots 64 and 658, as shown on plan hereinafter mentioned, one hundred twelve - s and 23/100 (112.23) feet; PLY by said lot 658, seventy seen and 48/100 (77.48) feed pLY by Marlborough Road (formerly Marlborough Street) ten and 80/100 (10.80) fee vt; and ASTERLY by lot 62, as shown on said plan, one hundred fifty five and 38/100 (155.38) feet Iof said boundaries are determined by the Court to he located as shown upon plan numbered 2-25, drawn by W. B. Hilton 8 Son, Surveyors, dated January 4, 1965, as modified and Q roved by the Court, filed in the Land Reglstratlon Office and the above described or a portion landtis SII •I .filed with Certificate of Title 934875 in said Registry, as Lot 46579 on last mentioned plan. CANCELLED r BY DOCU:.'::;T fID. r} SEE UERTjFICA:f E NO. I. Il i And is is further certified that said land is under the operation and provisions of Chapter 185 of the General i and that the tide of sold Lionel J. Bouchard and Louise J. Bouchard I . any of the encumbrances mentioned in Section ask!land is registered under said Chapter, subject, however, to .ak of said Chapter, which may be subsisting.+tsd-seMeee+Vs�[v— i„ Wn,,m,ss,JOHN E.FENTON,Esquire,Judge of the Land Court'at Salem, in said County of Essex, Til day of February in the year nineteen hundred ninth {I' o'clock and 12 sautes in the aft noon. t P. sixty five ,at 4 Attoq with the Seal of said Court. Acting•Anistan Rearardn. I, LOUISE J. BOUCHARD of SalemEssex County. MaesnchuseL[s, in consideration of ------------$140,000.00------------------- 1 grant to ROBERT 11. BOUCHARD of 145 Tedesco Street, Marblehead, with quitri.i.t ......ants MA Two certain parcels of land situate in ^ahem in the County of Essex and said Commonwealth, hounded and described as follows: 1st: EASTERLY by Marlborough Street (now called Narlbotru(;h Prod), fifty nine and 20/100 (59.20) feet; SCUT'HEASTERLY by lot 61, ar nborm or plan hereinafter mentioned, one hundred =x and 74/1.00 (106.74) feet; SOUTHWESTERLY by Mussolini lload, fifty two and 78/100 (52.7F) feet; and NCRTIIPIE,^.TFP.,L7 by lat 63 as shown on said plan, one hundred fifty five and 35/100 (155.35) feet. All of said boundaries are determined by the Court to be located aa hown upon plan numbered 11802-8, drawn by Thema= A. Appleton, Civil Engineer, date6 April 12, 1928, as modified and approved by the Court, filed in the land Registration Office., e. copy of a portion of which i= filer! with Certificate of Title #7179 in said Regirlry, ^rd the above describerl land is shown as Lot 462, sheet 1, on last mentioned plan. 2nd: SOUTHWESTERLY by Mussolini Road, fifty two and 70/100 (57,78) fent; NOC7'1!WTSTERLY by Lots 64 and 658, as shown on plan hereinafter mentioned, one hundred twelve and 23/100 (112.23) feet; NORTHERLY by said lot 65r,, seventy seven and 48/100 (77.4.) feet; EASTERLY by N;-rlbr,ou Ph Road (formerly htarlboroopb Ftrcet) ten and 80/100 110.80) feet; EOUTHFASTERLY by l.ot 62, as shown on said Plan, one hundred fit,, five and 38/1.00 1155.30 feet. All of said boundaries are detertnlucd by the Court to be located as shown upon plan numbered 11802-25, drawn by W. D. Hilton h Son, Surveyors, dated *anuary 4, 1965, as modified and approved by the Court, filed in the, Land Pegistration Office, a copy of a portion of which is filed with Certificate of 'Title #34875 in said Registry, and the aheve described lend is shown as hat 0657, on last mentioned plan. For my Title, see Certificate of Title 434875. The Grantor hereby certifies that at the time of the death of her husband, Lionel J. Bouchard, they were married, and not divorced. „ I Executed as a sealed instrument this 13th day of November U 86 Dhe�ammunwe�llth��essndluseits Essex November, 13, is,86 Then personally npp aj pd theal ore named Louise S. Bouchard and acknowledged the foregoing inatrumeut to It. her [�[gJe,.a,t and d, Before as �=4tC o- , darn J% Nwn.y Pi�Ni<—X�IiDtXMIVXXM16X My cammi.ion expires April 4, to 91 CI11�' 'CL[OF Inn5r\CHU' PTS .17 ;i Cert. No.56487 01rttnsfer Certificate of 01itle Doc. No.2 1805 9 ;I ti I From Transfer Certificate No. 34875 Originally Registered March 6, 19 28 ,in Registration Book 29 Page 7091 for the Southern Registry District of Essex Coln my Ohio is to Ocrtifg that Robert M. Bouchard of Marblehead in the County of Essex and Commonwealth of Massarlmseus, are the owner(,) in I,c simple of two certain parcels) of land situate in Salem in the County of Essex and said Commonwealth of Massachusetts bounded and described as follows: PARCEL ONE: EASTERLY by Marlborough Street (now called Marlborough Road) fifty nine and 20/100 . 1 (59.20) SOUTHEASTERLY by lot 61, as shown on plan hereinafter mentioned, one,hundred six and i 74/100 (106.74) feet; SOUTHWESTERLY by Mussolini Road fifty two.and 78/100 (52.78) feet; and NORTHWESTERLY by lot 63, as shown on said plan, one hundred fifty five and 35/100 (155.35) feet. _ AL1of said boundaries are determined by the Court [o be located as shown upon plan numbered 11802-8, drawn by Thomas A. Appleton, Civil Engineer, dated April 12, 1928, as modified and approved by the Court tied in the Land Registration Office, a copy of a portion of which is filed with Certificate of Title 7179 in said Registry, and the above described land is shown as lot 62, sheet 2, oa last mentioned plan. PARCEL TWO: SOUTHWESTERLY by Mussolini Road fifty two and 78/100 (52.78) feet; NORTHWESTERLY by lots 64 and 658, as shown on plan hereinafter mentioned, one hundred twelve and 23/100 (112.23) feet; NORTHERLY by said lot 658, seventy seven and 48/100 (77.48) feet; !- EASTERLY by Marlborough Road (formerly Marlborough Street) ten and 80/100 (10.80) feet; ` �l and SOUTHEASTERLY by lot 62, as shown on said plan, one hundred fifty five and 38/100 (155.38) feet.f t All of said boundaries are determined by the Court to be located as shown upon plan numbered 11802-25, drawn by W. B. Hilton IS Son, Surveyors, dated January 4, 1965, as modified and t approved by the Court, filed in the Land Registration Office, a copy of a portion of which . '\ is filed with Certificate of Title 34875 in said Registry, and the above described land is shown as lot 657, on last mentioned plan. (h 1, j CANCELLED! i BY DOCUMENT NO. Ze, y SEE CEBTIFlCATE N0. I I ' And it is further certified that said land is under the operation and provisions of Chapter 185 of the General f lass,and that the title ofsaid Robert M. Bouchard it to said land is registered under said Chapter, subject, however, to any of the encumbrances mentioned in Section i i' forty-slx of said Chapter,which may be subsisting,and subject abso to any encumbrances appearing on the back of this Certificate. Land Court t W rtmtss, MARILYN M. SULLIVAN, Esquire, Chief Justice of the at Salem,in said County of Essex, I i the thirteenth day of November in the year nineteen hundred and eighty six ,at 2 o'clock and 59 minutes in the after noon. Attest,with the Seal of said Court, - - JOHN LCUBkVEN,Je, „isl9nl Recorder I, ROBERT M. BOUCHARD of Salem, Essex County, MsscachusetL, in consideration of ------$125,000.00--------- I E ,v grant to RICHARD D. ANDERSON and CHERI A. ANDERSON, husband and wife, m as tenants by the entirety, both of 35 Marlborough Road, .'� Salem, MA m WITH QUITCLAIM COVENANTS 0 x Two certain parcels of land situate in Salem in the County of Essex an ,r said Commonwealth of Massachusetts bounded and described as follows: m o PARCEL ONE: H O ptpsceokmx by Marlborough Street (now called Marlborough Road) EASTERLY fifty-nine and 20/100 (59.20) feet; E n SOUTHEASTERLY by lot 61, as shown on plan hereinafter mentioned, one hundred six and 74/100 (106.74); SOUTHWESTERLY by Mussolini Road, fifty two and 78/100 (52.78) w feet; and w v NORTHWESTERLY by lot 63, as shown on said plan, one hundred fifty- five and 35/100 (155.35) feet. T All of said boundaries are determined by the Court to be located as v shown upon plan numbered 11802-B, drawn by Thomas A. Appleton, o Civil Engineer, dated April 12, 1928, as modified and approved by w the Court, filed in the Land Registration Office, a copy of a °i portion of which is filed with Certificate of Title 7179 in said Registry, and the above described land is shown as lot 62, sheet 2 on last mentioned plan. PARCEL TWO: SOUTHWESTERLY by Mussolini Road, fifty-two and 78/100 (52.78) feet; NORTHWESTERLY by lots 64 and 658 a shown on plan hereinafter mentioned, one hundred twelve and 23/100 (112.23) feet; NORTHERLY by said lot 658, seventy seven and 48/100 (77.48) feet; EASTERLY by Marlborough Road (formerly Mariborough Street) ten and 80/100 (10.80) feet; and - SOUTHEASTERLY by lot 62, as shown on said plan, one hundred fifty- five and 38/100 (155.38) feet. All of said boundaries are determined by the Court to be located as shown upon plan numbered 11802-25, drawn by W. B. Hilton 6 Son, Surveyors, dated January 4, 1965, as modified and approved by the Court, filed in the Land Registration Office, a copy of a portion of which is filed with Certificate of title 34875 in said Registry and the above described land is shown as lot 657 on last mentioned plan. For my title see Certificate of Title No. 56487. (THE FOLLOWING 19 NOT A PART OF THE DEED, AND 19 NOT TO HE RECORDED.) CP"FTEII 183,SECTION ll, GENFRAI. 1..1WE A deed in snhstamo following the form entitled "Quitelaim Deed"stall when only cxccntcd lurvc the force and eRoctof a deed in fee simple to the grantee,his heirs and assigns,to his and their own use,with co, enauts On the part of the grantor,for hilmelf, his heirs, executors, administrators and successors, with the grantee,his heirs,successor and assigns,that at the time of the delivery of Such deed the premise were free from all encumhmnces made by him,and that he will,and his heirs,executum end udministralurs shall,warrant � and defend the Same to the grantee and his heirs and assigns forever against the lawful claims and demands of all persons claiming by,through or under the grantor,but against none other. :l ane is m 5 oS o. n F a 09 w o ; Qa pgdb r In m2._>—`'le a 0 6O a 66,IU 6mK .e O ai ; 4IP j H aw a a m a n �y 1, N ILI P4 p } W U fil _ El-s a K Z a 0 *..*-............. ............. ........................ ........ ..................-....... ..............I.................................................. ................. .............I...............-.1............... ............................ .............................I.............. .............................................. ..........I............ ..................................... .................. F;�2,C. County..I... ...M...................... a a a a c h a a I e t t a 4N: for consideration paid,grant to............ pr_C -.111 .............. ................................................... .............................. .............................. ..........-....... ...... .45...Esaea,,,Stmet, Ly=, the land in t o be re an( fllI "itIll CrPllifillt- )ut." MOT-ms A. porcel of land I)nAbC I 1111-3,r] an follow, Easl,crly L:, :11 on F,CkltJl-w-'t,'9V 11, ffiIsr'li"I or i, c S�x ...d 74/100 (10C,.7 1 4) t. •.0.14 plin, 0,,c nqfcol cf ll!'6 I—t:;C Ll'.ianlriilqr Jj oi..,po ,, C.. U�lca)sancl r.1,711t. ,I.:—rn,j. (,r,,n.r% t Pl, U .........wife of said greater ........... ................. ........................... ............... ...... .. . .................. ....... ...... release to said grantee all right.of dower and homestead and other interest,therein. ....hanlVand ...............day of.Tjov.r.rl,.,........... .19 ....................-.1.1.1—...... ........... .............................. ................ ...................... ...................... F, Commontutaub of so—: .18. ...... ........... 10 Then personally appeared the above named ......... ................... ............ ..............-...... and acknowledged the foregoing instrument to be...Ili—free act and deed, before ale ................. Justice Of the Peace. MY Djnnmixsioa expires 19 NN, GIOVIINNI GUNSWARO, of 53 Arlington Street, in the City of'Everett, Middlesex Canty and married to Rlacnora Ouerrier0, and ANTONIO GURRRIUO, of 120 G1enellen Road in the hest Roxbury District of the City of Boston, Suffolk County, and Married to Maria S. Ouerriero, of 6oasy,Ffassachusers, Lpo�eb._arn�rs in our Own right as tenants in coMaoa Of the below described 'been es ird, for consideration paid,grant to LIONNI. J. BOUCHARD and LOUISN J. BOUCHARD, husband and Wife, as tenants by the entirety, of 35 marlborough street, iq the city of Sal«, Bases county eat with qust4lm rwtnanw dnmlma. .. that certain triangular parcel of vacant land situate in Sales in the County of Uses and said Ceso follows s- [O Pq 1.th bounded and described as •s-'^r7 AaA L z by Marlborough Street, one hundred thirty and 13/100 (130.13) feet, s by Mussolini Road, one.hundred sixteen (116) feet, and I by lot 62, as ahoon on plan hereinafter mentioned, one hundred six and 74/100 (106.76) feet. All of said boundaries are determined by the COurt to be located a shown on a plan numbered 11902-8, drawn by Thomas A. Appleton, C.R., dated April 12, 1926, as modified and approved by the Court, filed in the Lend Registration Office, a copy of a portion of which is filed With Certificate of Title #7179 in said Registry, mad the above described land is shown as lot 061, Sheet 2, = last mentioned plan. For Oar title, see astate of Giweppe GMarrlaro, Norfolk Probate Court 017129 and Certificate go. 8161, registered in Hook 33, Page 8161, recorded in Nssex South District Registry of Deeds, Land Registration Office, Sales. The consideration for this deed is jsoo.00. LGE ELGo1LuKH bLsERfLfCY(D Ahs /lir}XrA 5 pr:c kir o:l., -• iYc, b LtMT475 FFn�rfcv�[.rnl CruertwrKJ HtirD Hn?a/v/c GU/=>1�sefti; k�s � i�c!.77VEJ- ohfi'rR Af�[)a /W^F✓r �Y /�Nt[� aTNE/2 wiF. ssf'said•geareroe- /hTCy1t.JTS Ti>'F,�c/is! -sBtOaa�s°ijS�[L�.f td.sr �sssied ud•eUsaoinWwseN7seseisw QQyv�375darmotm hand sand seal this 23rd day of November 1970 "12 ��. Milt 0kmsant®raltll of 9asser4puseDs bees, ss. November 23, 19 70 Thm perwnally appeared th,,bore named GIOVANNI ODI RRISRO and ANTONIO GUBRRIBRO and acknowledged the foregoing inetroment to ber free aR nd deed,before me a _ ' � RD H. VA , Nuur Public-3wti4-a[JhG3IX[ Fry cammiwm aPvex............Msy..2D...................._.........9.77. ,p n n QUITCLAIM DEED I, Louise J. Bouchard, of Salem, Essex County, Massachusetts, for nominal considersation,l \ � „• 16.v y4 sie Mawv Ta.\# +jT r•ay\L N�.�q Ih l\r) grant co Robert K. Bouchard, of Salem, Essex County. Massachusetts, with quitclaim covenants, the following described land: EASTERLY by Marlborough Street, one hundred thirty and 13/100 (130.13) feet; SOUTHWESTERLY by Mussolini Road, one hundred sixteen (1161 feet; and $� NORTHWESTERLY by lot 62, as shown on plan hereinafter t mentioned, one hundred six and 74/100 v7 (106.74) feet. i All of said sloundariea are determined by the Court to be 1-i located as QHown on a plan numbered 11802-B, drawn by Thomas - �� A. App leton�{ C.E., dated April 12, 1928, as modified and =S approved by he Court, filed in the Land Registration Office, a copy of a,ortion of which is filed with Certificate of 7 Title #71797�o said Registry, and type above described land is Y2 shown as tow#61. Sheet 2, on last mentioned plan. For our ticle see deed from Antonio Cuerriero, et al, dated i November 23„ 1970, recorded at Essex South District Registry of Deeds, Document # 137795 ;-Ae 6x W7-42. lle`,eB6% Dec.(ni'�s 7;4,7 l',tioi T 7!e DrnT. nF- *e' ls'vIBA.v/ll 7�ej .yVe . ee 66 A,,, d��o ecen WITNESS my hand and seal this /3 th day of January, 1987. COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. January/3 , 1987 Then personally appeared the above named Louise J. Bouchard and acknowledged the foregoing instrument to be her free act and deed, before me. Lay Public My y mm ission expires: c QUITCLAIM DEED 0 o I , Robert M. Bouchard, Trustee of the Marlborough Street Realty o Trust, under Declaration of Trust dated January 13, 1987 and filed as Document #221402 in Essex South District Registry of Deeds, N of , Essex County, Massachusetts , u d N 7 U in Consideration of FOURTEEN THOUSAND AND N0/100 DOLLARS ---------- co -------------------------($14, 000 .00)------------------------------ N N e grant to Thomas M. Donovan, Trustee of the Trapper Realty Trust, under Declaration of Trust dated September 30, 1994 to be recorded herewith, of 31 Marlborough Road, Salem, Essex County, Massachusetts with QUITCLAIM COVENANTS All that certain parcel of land situate in Salem, in the County of a Essex and said Commonwealth of Massachusetts bounded and described s as follows : 00 7 O S P EASTERLY by Marlborough Street one hundred thirty and 13/100 u ( 130 . 13) feet; m s SOUTHWESTERLY by Mussolini Road one hundred sixteen ( 116 ) feet; and N NORTHWESTERLY by lot 62, as shown on plan hereinafter mentioned, one hundred six and 74/100 ( 106 . 74) feet. v v 7 All of said boundaries are determined by the Court to be located as a shown upon plan numbered 11802-B, drawn by Thomas A. Appleton, Civil Engineer, dated April 12, 1928, as modified and approved by the Court, filed in the Land Registration Office, a copy of a portion of which is filed with Certificate of Title 7179 in said Registry, and the above described land is shown as lot 61 , sheet 2 , on last mentioned plan. For title see Certificate of Title No. 56796 . QUITCLAIM DEED/PAGE TWO Witness my hand and seal this 30th day of September, 1994 . Marlborough Street Realty Trust ober M. Bouchard, Trustee COMMONWEALTH OF MASSACHUSETTS Essex, ss September 30, 1994 Then personally appeared the above named Robert M. Bouchard, Trustee as aforesaid and acknowledged this instrument to be his free act and deed, before me, NOTARY PUBLIC, MY COMMISSION EXPIRES : �- 108 Mass. 454 NORTH EASTERN REPORTER, 2d SERIES 16 Mass.App.985 Harry Sarkis Terkanian, Wellfleet, for George W. SIEBER et al.t Zoning Bd. of Appeals of Wellfleet & oth- ers. V. ZONING BOARD OF APPEALS OF Before BROWN, PERRETTA and WELLFLEET et al.z SMITH, JJ. Appeals Court of Massachusetts, Barnstable. RESCRIPT. Argued Dec. 16, 1982. The plaintiffs brought this action seeking (1) judicial review of a decision by the zon- Decided Sept. 16, 1983. ing board of appeals of Wellfleet (board), and (2) a declaratory judgment that the board's decision was contrary to the provi- sions of G.L. c. 40A, § 6, upon which the. view of decision by the zoning board of decision was premised. The parties sub- appeals and declaratory judgment that mitted a statement of agreed facts, and the board's decision was contrary to provisions action came before the court on cross mo- of statute upon which decision was tions for summary judgment. After hear- premised. The Superior Court, Barnstable ing, the judge granted the defendants' mo- County,granted defendants'summary j udg- tion and declared the board's decision to be ment motion and declared board's deci- within its authority. sion to be within its authority, and appeal was taken. The Appeals Court held that The defendants Daniel C. and Barbara L. board acted lawfully in approving building Sullivan own a parcel of land(locus), with a permit because locus had benefit of grand- frontage of eighty feet and an area of 5,600 father provision in first sentence of statute. square feet, in a section of Wellfleet zoned Affirmed. for residential use. The relevant zoning by-law prescribes a minimum frontage of 125 feet and an area of 20,000 square feet Zoning and Planning 0-376 for construction on a lot in the residential Zoning board of appeals acted lawfully zone. In 1979, the Sullivans applied for and in approving building permit since locus had were granted a building permit authorizing construction of a single-family house on the benefit of grandfather provision stating locus. The plaintiffs, who own property that any increase in area, frontage, width, adjoining the locus, sought review before yard, or depth requirements of a zoning the board, which subsequently upheld the ordinance or bylaw shall not apply to a lot for single and two-family residential use grant of the permit. The instant action which at time of recording or endorsement, was thereafter filed in the Superior Court. whichever occurs sooner, was not held in In granting summary judgment for the common ownership with any adjoining land, defendants, the judge ruled that the board conformed to then existing requirements had acted lawfully in approving the build- and had less than proposed requirement but ing permit because the locus had the benefit at least 5,000 square feet of area and 50 of the grandfather provision in the first feet of frontage. M.G.L.A. c. 40A, § 6. sentence of c. 40A, § 6, par. 4, as inserted by St.1975, c. 808, § 3. That statute pro- vides, in relevant part: "Any increase in Arthur C. Croce, Wellfleet, for plaintiffs. area, frontage, width, yard, or depth re- 1. Roberta H. Sieber. 2. The Wellfleet inspector of buildings,Daniel C. Sullivan, Barbara L. Sullivan, and the town of Wellfleet. t i i FRANK D. WAYNE ASSOCIATES, INC. v. LUSSIER Mass. 109 Wellfleet, for Cite as 454 N.E2d 109 (Mass.App. 19&7) Nellfleet & oth- quirements of a zoning ordinance or by-law tion with agency during period of covenant shall not apply to a lot for single and two- was not too speculative to provide basis for family residential use which at the time of damage award; (2) agency's earnings rec- RRETTA and recording or endorsement, whichever occurs ord and salesman's income were admissible sooner was not held in common ownership as evidence of extent of damages caused by with any adjoining land, conformed to then breach; and (3) limited injunction issued by existing requirements and had less than the trial court at preliminary stage of proceed- proposed requirement but, at least five ing did not preclude an award of damages. action seeking thousand square feet of area and fifty feet of frontage." Specifically, the judge ruled Affirmed. ion by the zon- that although the locus was first recorded Ilfleet (board ,Ment that thee on a plan filed in 1889, when the locus was 1. A held in common ownership with adjoining and Error X713( •y Co the provi- g Altho Although several hundred pages of f land, the exemption was applicable to the transcript of hearings before a master, as ie parties which the locus because, as evidenced b recorded o parties sub- deeds, it had been held at all times since well as exhibits introduced in those's record ,t onfacts, and the 1891 in separate ownership from all adjoin- Ings, were reproduced in defendant's record ^t on cross mo- appendix, Appeals Court would decline ing land. For the several reasons enumer- cto e t. After hear- ated in the extensive memorandum filed look at material, since order of reference efe , concur. Provided that evidence was not to be re- ndants' mo- with the judge's order, we decision to be eported, and there was no indication in rec- Judgment affirmed, ord that judge subsequently ordered evi- and Barbara L. dence to be reported. (locus), with a o Srctrxuvatesrsrta 2• Appeal and Error x713(1) n area of 5,600 T Filing of transcript by agreement of Vellfleet zoned parties with clerk of trial court did not -levant zoning change status of transcript in absence of M frontage of change in order of reference providing that 00 square feet 16 Mass.App. 986 transcript was not to be reported on appeal. 'he residential FRANK D. WAYNE ASSOCIATES, INC. pplied for and V. 3. Appeal and Error x713(1) Paul A. LUSSIER. Allowance by trial judge of defendant's lit authorizing motion to include transcript in record on y house on the Appeals Court of Massachusetts, appeal did not enhance its status, in absence own property Hampshire. of change in order of reference providing review before ; Argued April 19, 1983. that transcript was not to be reported on ly upheld the appeal, instant action Decided Sept. 16, 1983. a pp uperior Court. Further Appellate Review Denied 4• Appeal and Error 3-848(1) ent for the _ Nov. 2, 1983. Order of reference providing that evi- hamt the board Real estate agency brought action dence attending master's report was not to ing the build- against real estate salesman seeking to en- be reported, provided "facts final,"and thus ad the benefit force covenant not to compete. The Superi- under applicable rule of civil procedure only in the first or Court, Hampshire County, entered judg- questions of law arising upon the report 4, as inserted ment confirming a master's report which Would be considered. Rules Civ.Proc., Rule statute pro awarded $50,000 in damages to agency, and 53(e)(4), 43A M.G.L.A. Y increase in salesman appealed. The Appeals Court 5. Damages x190 o ,Daniel C.r depth re- held that: (1) master's finding that agency Although task of quantifying conse- suffered a very substantial decrease in in- quences of violating a noncompetition Ingscome following breach of covenant, and clause is a particularly difficult and elusive nd the town of that salesman earned substantial real estate one,damages are not precluded; as in other commissions while engaged in that competi- cases where lost profits have to be valued, �S ADAMOWICZ v. TOWN OF IPSWICH Mass. 1369 Cite as 481 N.E.2d 1368 (Masa. 1985) 1ct which exempted 4. Zoning and Planning x236 § 6] would be given prospective effect, in eased zoning restric- Word "recording," g contrary conditions are met, as used in Zoning absence of indication of contra intent. Act exempting certain lots from increased 9. Zoning and Planning 0-273 at lot at time of re- zoning restrictions provided certain condi- Purpose of Zoning Act exempting cer- 3t, whichever occurs tions are met, including condition that lot tain lots from increased zoning restrictions 1 common ownership at time of "recording" or endorsement, provided certain conditions are met [M.G. d. The Supreme Ju- whichever occurs sooner is not held in com- L.A. c. 40A, § 61 is to protect once-valid ., held that: (1) Act mon ownership with any adjoining land buildable residential lots. fer to recording of [M.G.L.A. c. 40A, § 61, does not necessarily ed to recording of refer to recording of plan, but rather, re- 10. Zoning and Planning 0-236 ng deed; (2) Act re- fers to recording of any instrument, includ- Lot meets requirements of Zoning Act strument of record ing a deed. exempting certain lots from increased zon- of zoning change, See publication Words and Phrases ing restrictions provided certain conditions ment on which sep- for other judicial constructions and are met, including condition that lot at time status definitions. of recording or endorsement, whichever oc- channgg of lot icon- - curs sooner was not held in common owner- . t statutory require- Zoning Act exempting cce being con- 5. Zoning and Planning ng certain lots ship with any adjoining land [M.G.L.A. c.. strument of record from increased zoning restrictions provided 40A, § 61, if most recent instrument of g change revealed _ certain conditions are met, including condi- record prior to restrictive zoning change d, even though pre- tion that lot at time of recording or en- reveals that lot was separately owned,even though previously recorded subdivision n pion plan might re- owhichever occurs sooner was plan may reveal that lot was at one time part of land held in nott held held in common ownership with any adjoining land [M.G.L.a. c. 40A, § 6], re- part of land held in common ownership. fers to most recent instrument of record prior to effective date of zoning change, Douglas A. Randall, Quincy, for plain- rather than first recorded instrument on tiffs. which separate lot is shown; status of lot Charles C. Dalton, Town Counsel, Ips- immediately prior to zoning change is con- wich, for defendant. by state Appeals trolling. ed by the decision 6. Constitutional Law 0-48(1) Before WILKINS, LIACOS, ABRAMS, that court or the NOLAN and O'CONNOR, JJ. ourt declares oth- Statutes are to be construed so as to avoid unconstitutional result or likelihood ABRAMS, Justice. thereof. We address three questions certified to 7. Statutes 0-263 this court by the United States Court of iterpreted so as to Amendments to statutes, especially Appeals for the First Circuit,' pursuant to Of it meaningless. those dealing with real property, generally S.J.C.Rule 1:03, as amended, 382 Mass. 700 have prospective effect only. (1981). The Court of Appeals asks us to interpret the first sentence of the fourth to which leads to 8. Zoning and Planning +-235 paragraph of The Zoning Act, G.L. c. 40A, of legislation is Zoning Act exempting certain lots § 6 (1984 ed.), which exempts certain lots pted if statutory from increased zoning restrictions provided from increased zoning restrictions provided tible to construe- certain conditions are met[M.G.L.A. c. 40A certain .conditions are met, including the real and sensible 2. The questions are as follows: (1)Does holding monwealth?; and (3) Does a lot meet the re- 1 [that the word "recording," as it appears in quirement set forth in the quoted statutory Ian- G.L. c. 40A, § 6, does not necessarily refer to guage if the most recent instrument of record Carole E. Phillips, the recording of a"plan"]correctly state the law prior to a restrictive zoning change reveals that el Rubenstein, Deli- of the Commonwealth?; (2)Does holding 2[that the lot was separately owned, even though a . Schlaufman, John it should be taken to refer "to the most recent previously recorded subdivision plan may re- orpezer, Shirley M. instrument of record prior to the effective date veal that the lot was at one time part of land Thomas J. Walsh, of the zoning change from which the exemption held in common ownership? and Eva L.Wright. is sought"] correctly state the law of the Com- 1370 Mass. 481 NORTH EASTERN REPORTER, 2d SERIES condition that the lot "at the time of re- their pre-existing building rights "inversely cording or endorsement, whichever occurs condemned" their land, entitling them to an sooner was not held in common ownership injunction or to damages. See San Diego with any adjoining land." Gas & Elee. Co. v. San Diego, 450 U.S. While this case was pending at the Fed- 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981). eral District Court level, the Massachusetts After the Massachusetts Appeals Court's Appeals Court affirmed a Superior Court decision in Sieber v. ZoningBd. of Appeals holding that in the first sentence of the of Wellflee4 supra, a judge of the Federal fourth paragraph of G.L. c. 40A, § 6, the District Court concluded that Massachu- word "recording" refers "to the most re- setts law, as interpreted by Sieber, permit- cent instrument of record prior to the ef- ted the plaintiffs to build; thus, they could fective date of the zoning change from not assert a Federal claim of "taking," for which the exemption is sought." Sieber v. a ii Gauthier, Superior Court No. 40548 (Aug. nothing had been taken. The plaintiffs' 31, 1981), aff'd sub nom. Sieber v. Zoning request for a mandatory injunction order- Bd. of Appeals of Wellfleet, 16 Mass. Ing building permits was denied by the App.Ct. 985, 454 N.E.2d 108 (1983). Federal District Court judge on the basis of the Sieber decision. The town refused to The following facts accompany the re- issue the permits. The plaintiffs appealed. quest for certification. The plaintiff Ada- mowicz and others own certain lots in Ips- [11 In the appeal to the Court of Ap- wich (town). These lots are not big enough peals, the town stated that its refusal to i, to allow building under the town's restric- issue the permits rested on its view that, in tive zoning requirements. Before the en- actment Zoning of The Zoning Act, G.L. c. 40A, by 9 of Appeals of Well- St.1975, c. 808, § 3, the plaintiffs could Beet, supra, the Massachusetts Appeals build on their lots because of "grandfa- Court incorrectly interpreted the first sen- ther" provisions in the town's zoning by tence of the fourth paragraph of G.L. c. law and in § 5A of the older version of G.L. 40A, § 6.' The town contends that the c. 40A (as amended through St.1961, c. 435, Legislature did not intend to provide broad §§ 1, 3). After Massachusetts enacted the "grandfather clause" protection under the 1975 Zoning Act and the town amended its relevant sentence of G.L. c. 40A, § 6. zoning law in 1977 so as to require larger Thus, it claims that the language at issue minimum lot size, the town refused to give does not protect owners of lots held in one or more of the plaintiffs permission to common at the time a deed or a plan on build houses on their lots. The town as- which they were shown was first recorded. serts that the 1975 Zoning Act deprived the The town concedes that under its interpre- plaintiffs of their "grandfather" rights be- tation the statutory language is meaning- ;,i, cause they do not meet all of the conditions less because almost every lot in the Com- contained in the statutory language. monwealth was, at one time or another, The plaintiffs sued the town in Federal part of a larger.,parcel of land that was court under 42 U.S.C. § 1983 (1982), claim- later subdivided as shown on a recorded ing that Massachusetts' deprivation of plan or a recorded deed. .I 3. The judge also decided that the town's delay Massachusetts law." Ford v. Flaherty, 364 Mass. and refusal to follow Massachusetts law requir- 382, 388, 305 N.E.2d 112 (1973). "An interme. ing issuance of the building permits did not diate court ... is a maker of law in the same deprive the plaintiffs of any rights protected by sense as the supreme court." Kaplan, Do Inter- 42 U.S.C. § 1983. mediate Appellate Courts Have a Lawmaking 4. Since the Sieber decision,the town has refused Function?, 68 Mass.L.Rev. 10, 12 (1985). A to issue building permits to the plaintiffs,appar- town or any other person affected by an Ap. ently on the mistaken belief that it is not gov- peals Court decision is governed by the Appeals erned by decisions of the Appeals Court. "It Court decision until and unless either that court goes without saying that Appeals Court deci- or this court declares otherwise. sions may appropriately be cited as sources of I f f ADAMOWICZ v. TOWN OF IPSWICH Mass. 1371 Cite as 481 N.E.2d 1368 (Maas. 1984) The Court of Appeals determined that of recording or endorsement, whichever oc- the town raised arguments of sufficient curs sooner was not held in common owner- weight to make uncertain the proper inter- ship with any adjoining land." In Sieber v. pretation of the statutory language in Gauthier, the judge of the Superior Court question and that authoritative resolution rejected the town of Wellfleet's argument of that uncertainty would significantly af- that in that sentence the word "recording" fect the way in which it ought to decide the necessarily refers to the recording of a appeal before it. We proceed to address plan. In the instant case neither party has the three certified questions. argued that the word "recording" refers (1) Does the word "recording," as it ap- only to a plan. The town of Ipswich takes pears in the first sentence of the fourth - the position that "the words `recording or paragraph of G.L. c. 40A, § 6, necessarily endorsement whichever occurs sooner refer to the recording of a "plan"? refer to the earliest recorded instrument [2,3] We begin our answers by observ- showing a lot as an identifiable separate ing that "[b]arrenness of accomplishment entity" (emphasis added), and throughout is not lightly to be imputed to the legisla- its brief, the town refers to a plan or a tive branch of the government." Select. deed. The town thus does not rest its men of Topsfield v. State Racing argument on the necessity of the word Comm'n, 324 Mass. 309, 314, 86 N.E.2d 65 "recording" referring only to the recording (1949). See Insurance Rating Bd. v. Com- of a-plan. Generally an issue not argued is missioner of Ins., 356 Mass. 184, 189, 248 deemed waived. See Mass.R.A.P. 16(a)(4), N.E.2d 500 (1969). Nor do we interpret a as amended, 367 Mass. 921 (1975). We statute so as to render it or any portion of nonetheless respond to the first question it meaningless. See Casa Loma, Inc. v. posed by the Court of Appeals. Alcoholic Beverages Control Comm'n, 377 Mass. 231, 234, 385 N.E.2d 976(1979). The L4I The Superior Court judge in Sieber construction of a statute which leads to a v. Gauthier concluded that the first sen- determination that a piece of legislation is Lente of the fourth paragraph of § 6 does neffective will not be adopted if the statu- not necessarily refer to the recording of a tory language "is fairly susceptible to a plan, but rather, refers to the recording of construction that would lead to a logical any instrument, including a deed. We and sensible result." Lexington v. Bed- agree. General Laws c. 4, § 7 (1984 ed.), ford, 378 Mass. 562, 570, 393 N.E.2d 321 defines "recorded" as applying to "plans, (1979), quoting Bell v. Treasurer of Cam- deeds or other instruments affecting land." bridge, 310 Mass. 484, 489, 38 N.E.2d 660 That section also provides that defined (1941). McCarthy v. Woburn Hous. Auth., words "shall have the meaning herein giv- 341 Mass. 539, 542, 170 N.E.2d 700 (1960). en, unless a contrary intention clearly ap- Berube v. Selectmen of Edgartown, 336 pears." Id. Because it is only after the Mass. 634, 639, 147 N.E.2d 180 (1958). plan is recorded that the lots are sold and The first sentence of the fourth para- deeds given to separate owners, see G.L. c. graph of G.L. c. 40A, § 6, exempts certain 183, § 6A (1984 ed.), we also conclude that lots from increased zoning restrictions if, the sentence at issue means the recording i; among other conditions, the lot"at the time of any instrument, including a deed.' 5. General Laws c. .) 40oovides: "Any in�easehn fifty feetst at least five thousand square feet of of frontage" (emphasis added). and sentence (1984 ed.), p Y area, frontage, width, yard, or depth require. ments of a zoning ordinance or by-law shall not 6. In his thoughtful and comprehensive memo- apply of a lo[ for single and two-family resi- randum, the Superior Court judge in Sieber v. Gauthier reasoned dential use which at the time of recording or G.L. follows: L, subdivision as is the'division endorsement, whichever occurs sooner was not it is defined by .a 41, § SIL, F held in common ownership with any adjoining of a tract of land into two or more lots.' Before land, conformed to then existing requirements the Subdivision Control Law took effect, such a and had less than the proposed requirement but division could be accomplished without review i 481 N.E.2tl 31 ' y 4 jl i i 1372 Mass. 481 NORTH EASTERN REPORTER, 2d SERIES I � [5] (2) Does the first sentence of the separate lot is shown is almost always fourth paragraph of G.L. c. 40A, § 6, refer subdivision plan and by definition such to the most recent instrument of record plan includes adjoining lots owned by prior to the effective date of the zoning same person or entity; therefore, any orb change from which the exemption is statutory construction would make sought? statute ineffective. We conclude that The town argues that the common own- statute looks to the most recent instrmen ership requirement in the sentence at issue of record prior to the effective date uof the applies to the status of the lot as of the zoning change. date that the first instrument on which the Our conclusion was prefigured in dicta j lot is shown is recorded. It maintains that from other cases. In Sturges v. Chilmark the Sieber v. Gauthier decision was in 380 Mass. 246, 261, 402 N.E.2d 1346(1980), error in concluding that the common own- a declaratory judgment was sought as to - ership requirement referred to the status the effect of the phrase "adjoining land" of the lot at the time of the most recent contained in the exemption provided by instrument of record prior to the effective G.L. c. 40A, § 6. As in the instant case, alla zoning change. We do net agree. The of the Sturges lots were held in common i� language used by the Legislature suggests ownership at the time the plan creating the that it is the status of the lot at the time it lots was recorded. Although our discus- is recorded which is significant, rather than sion of the provisions of § 6 other than the its status at the time that a plan on which meaning of "adjoining land" was dictum, it first appeared was recorded. Because, we said, "Section 6 is concerned with pro- grammatically, the modifying phrase tecting a once valid lot from being ren- ["which at the time of recording or en- dered unbuildable for residential purposes, dorsement"] must refer to the last ante- assuming the lot meets modest minimum cedent phrase ["a,lot for single family .. . area . .. and frontage .. . requirements." residential use"], see Moulton v. Brook- Sturges v. Chilmark, supra at 261. That line Rent Control Bd., 385 Mass. 228, 230- language supports the construction that 231, 431 N.E.2d 225 (1982); Druzik v. the status of ownership of a lot is deter Board of Health of Haverhill, 324 Mass. mined as of the date of the zoning change.' 129, 133, 85 N.E.2d 232(1949), the sentence Other decisions by this court and the Ap- means that the status of the lot immediate- peals Court also assume this interpretation, ly prior to the zoning change is controlling. but did not base their conclusions on this The first recorded instrument on which the ground. See Warren v. Zoning Bd. of - �i'll by local planning boards simply by recording a ship before the plan because there must be a survey plan showing the newly created lots. plan showing the tract of land so divided before Regardless of whether a subdivision plan was lots may be separately deeded and owned. made before or after the Subdivision Control However, if there is such a plan, the separate Law became effective, implicit in all such plans ownership criteria of Section 6 would never be is the understanding that potential new lines of satisfied,even to subsequent individual lot own- ownership are created in a tract of land so ers, because initially all lots shown on the plan divided. There is no point in creating a plan of were commonly owned:' it lots already separately conveyed. To interpret Section 6 to require separate ownership at the 7. There is other language in Sturges V. Chil- i; time of recording or endorsement of a plan mark, supra, however, which the town suggests showing more than one lot is to render it mean. supports the opposite conclusion: 'The plain- _, ingless because such a plan by its very nature tiffs' lots would meet all the requirements for implies that the lots created thereon are all such an exemption under§ 6,unless at the time initially in common ownership and then subse. of the recording of the plan, the lots were'held - quently deeded to individual owners. in common ownership with any adjoining land: "The net result of interpreting Section 6 to G.L. a 40A, § 6." Id. at 261, 402 N.E.2d 1346. require separate ownership at the time of re- In the Sturges case, the circumstances at the cording or endorsement of a subdivision plan is time of the recording of the plan and at the time j to attribute a'Catch-22'mentality to the Legisla- of the zoning change were the same and nothing .i ture's intent. One cannot have separate owner- in that case depended on the issue argued here. i Ili ! CARCIOFI v. BOARD OF APPEAL OF BILLERICA Mass. 747 Cite a4 492 N.E2d 747 (Ma App. 1986) support in the 22 Mass.App.926 lot 2 and has a frontage of about 100 feet ly mailed by Cin- Henry M. CARCIOFI and an area of 69,522 square feet. reached Schena V. In 1956, by amendment of the zoning s inconclusive) or by-law, the lots became part of a "rural irrived at Schena BOARD OF APPEAL OF BILLERICA. residence district" in which minimum front- mpany is intone- Appeals Court of Massachusetts, age of 150 feet and minimum area of 30,- neral contractor, Middlesex. 000 square feet were required. The 1956 riting within the amendment carried a "grandfather" provi- Argued Feb. 11, 1986. sion. It is stipulated by the parties that lot Decided May 19, 1986. 2 "was a valid pre-existing lot protected by d notice 6y reg- grandfather clause status" under the 'l. The finding, amendment. r¢, to have been - Owner appealed denial of application On February 21, 1959, Carciofi caused lot ., that Schena re- for variance. The Superior Court, Middle- 3 to be conveyed to himself and his wife e claim of Cinder sex County, held that owner was entitled to Rose as tenants by the entirety. In April, inconsequential building permit, and appeal was taken. 1962, Richard Gertz conveyed his one-half ucts to execute The Appeals Court held that lot with less interest in lot 2 to Carciofi and wife as ered or certified than minimum frontage was protected by tenants by the entirety. Thus lot 2 was . 149, § 29. Con- "grandfather" provision, and owner was owned one-half by Carciofi and wife as Insurance Co. entitled to building permit. pp.Ct. nc Co. ' tenants by the entirety, and one-half by x Affirmed. Carciofi individually. ompare Barboz¢ 18 Mass.App.Ct. In October, 1970, the by-law was again 0(1984). Statu- Zoning and Planning X376 amended, this time to require minimum red mail or certi- Lot with less than minimum frontage frontage of 200 feet, and minimum area of cilitate proof ofyµ was protected by "grandfather" provision, 50,000 square feet. The language of the ual timely notice and owner was entitled to building permit. by-law's grandfather clause had been ins a copy of the somewhat altered in 1965 and in that form tamp by Schena _ has remained in the by-law. ailure to comply " Edward J. Owens, Lowell, for defendant. On November 7, 1980, Carciofi and wife ied mail require- conveyed lot 3 to Darcy and Isolde Deer. n from statutory Stephen A. Nelson, Billerica, for plain- Y owd, 343 Mass. tiff. In 1983, Carciofi, desiring to build on lot 2, was informed that he needed a variance. 23 (1961). Ger- Before BROWN, KAPLAN and PER- Accordingly, he applied to the board of 2 Mass.App.Ct. y . RETIA, JJ. appeal in March, 1984, requesting a vari- 174). See Great ante from the frontage requirement in or- Co. v. Yanofsky, RESCRIPT. der to build a one-family house on the lot. LE.2d 370 (1980). On July 15, 1953, Henry M. Carciofi and When his application was denied,he appeal- Richard Gertz became the owners, as ten- ed to the Superior Court under G.L. c. 40A, ants in common, of lot 2 of the "Airy § 17; he also cited G.L. c. 231A. Upon Acres" development in Billerica. Lot 2 has trial, a judge of the Superior Court held that lot 2 was grandfathered and the plain- a frontage of 100 feet on Patten Road and rlw _ an area of 67,518 square feet. At the time tiff would thus be entitled to a building of the acquisition of lot 2 by Carciofi and permit. He did not find it necessary to Gertz, the applicable zoning by-law provid- reach the question of a variance. ed that, for single-family residences in resi- We agree with the judge. As noted, the - dential districts, frontage must be not less parties agree that in 1956 lot 2 was protect- than 75 feet and area not less than 7,500 ed although nonconforming as to frontage. square feet. The grandfather clause of the 1956 by-law ollected in Balloon egram Delivery,Inc., From July 9, 1951, Carciofi owned, indi- had a proviso that "such lot did not at the N.E.2d 523 (1984). vidually, lot 3 of Airy Acres. This adjoins time of the adoption of this amendment 748 Mass. 492 NORTH EASTERN REPORTER, 2d SERIES adjoin other land of the same owner avail- 22 Mass.App.929 able for use in connection with such lot." SCHOOL COMMITTEE OF REVERE The proviso of course did not apply to the v situation in 19ya6. Neither did it apply REVERE TEACHERS ASSOCIATION. �j ter the conveyances of 1959 and 1962:62: First, there was no single ownership of Appeals Court of Massachusetts, �I both lots at that time (or at any time), as Suffolk. �I lot 3 was owned by Carciofi and wife as tenants by the entirety, while lot 2 was Submitted on Briefs May 5, 1986. held in the different ownership above de- Decided May 20, 1986. ii scribed. Second, even if it be assumed that Further Appellate Review Denied in some rough sense the two lots were July 2, 1986. owned by "the same owner" in 1962, the lots were not so owned at the time of the Appeal was taken from judgment en- adoption of the amendment in 1956, as the tered in the Superior Court, Suffolk Coun- text of the proviso specified. The board of ty, concerning arbitration proceeding be- appeal offered nothing amounting to an tween school committee and teachers asso- argument in its brief or orally to persuade ciation. The Appeals Court held that: (1) ij us that the grandfathered status of lot 2 school committee which participated in ar- was changed by the events through 1962 or bitration hearing without raising any claim that the grandfathering text of the 1965 before arbitrator that collective bargaining by-law purported to defeat that protected agreement had expired could not claim lack status.' of jurisdiction based on expiration of agree- Although Carciofis pleading in Superior ment, and (2) claim of lack of appropria- Court dealt with the variance, the question tions raised for first time on appeal would of the grandfathering provisions was not be considered. raised and decided (note that G.L. c. 231A, Judgment affirmed. the declaratory action statute, was invoked in the pleading). 1. Labor Relations—481 School committee which participated in There is no bar to the review and affirm- arbitration hearing without raising any ance of that decision on this appeal. claim before arbitrator that collective bar- Judgment affirmed gaining agreement had expired could not claim lack of jurisdiction based on expira- tion of agreement. M.G.L.A. c. 150C, t § 11(a)(5). w O SKEY NBMBIRSYSTEM 2. Labor Relations3-481 r School committee's contention of lack of appropriations would not be considered where raised for first time on appeal in arbitration action. Rules App.Proc., Rule 16(a)(4), 43B M.G.L.A. Frederick T. Golder, Boston,for plaintiff. 1. Indeed, the 1965 text, regarding "the same land of the same owner available for use in owner,' looks to the date of the by-law amend- connection with such lot." See Girard v. Board ment that made the lot nonconforming—here of Appeals of Easton, 14 Mass.App.Ct. 334, 336, 1956. The 1965 language is: "such lot did not at 439 N.E.2d 308(1982). Compare Adamowia v. the time of the adoption of any amendment fpswich, 395 Mass. 757, 762-763, 764, 481 making said lot nonconforming adjoin other N.E.2d 1368 (1985). DATE OF HEARING PETITION % LOCATION / ✓✓✓ MOTION: TO GRANT SE ND AMENDMENT SECOND TO DENY SECOND TO RE-HEAR SECOND WITHDRAW SECOND CONTINUE SECOND ROLL CALL PRE/SENT GRANT DENY AMEND WITHDRAW RE-HEAR CONTINUE GARY M. BARRETT ALBERT C. HILT STEPHEN O'GRADY STEPHEN TOUCHETTE NINA V. COHEN ASSOCIATE MEMBERS ARTHUR LEBRECQUE L� CONDITIONS , L� Qin 199 l V ,o G < - \zbaform\ Ili • BOARD OF ASSESSORS CITU HALLPANE a DATE 11/22/1i 4 " z -- CERTIPIEU ABUTTERS LIST' -• ° ., . • s .. SUBJECT PROPERTYi MAP. 08 LOT.- 0074 SUhh ° 6 • FI<C?PE:RT'Y ACiE?RF..,��5, 0!731 !'1ARl.E•(ikt)1.�(:i!-I ROAD ° rAS�9E-:f=S&D-c.WN&R— ;—El 4ki:.-E'•aROUt:,F Tli h-� RE�? ry '�R.t a ° EOUC ARC.? < hl ° 41A:P_-L..UT-SULF. 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