96 MARLBOROUGH ROAD - ZBA (2) Q
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96 MARLBOROUGH^ROAD
/ JOHN JERMY_N
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Legal Notice
CITY OF SALEM
BOARD OF APPEAL
745.9595 EXT.381
Will hold a public hearing for all
persons interested in the petition
submitted by JOHN E. JERMYN
requesting a Variance for lot area and
lot width to build a single family
dwelling for the property located at
96 MARLBOROUGH ROAD (R-1).
Said hearing to be held WEDNES-
DAY,DECEMBER 17, 1997 AT 6:30
P.M., ONE SALEM GREEN, 2nd
floor.
Gary Barrett,Chairman Y /
(12/3,12/10/97)
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�Rnttrd of `Au}zezil 95 M,AIR -5 ?4 :1
DECISION ON THE PETITION OF THOMAS M. DONOVAN, TRUSTEE 0{'�PHIE'TRAPPER!' '"E
REALTY TRUST REQUESTING REVIEW OF THE DECISION OF THE ZONING"'
ENFORCEMENT OFFICE FOR THE PROPERTY LOCATED AT 35 MARLBOROUGH ROAD
(R-1)
A hearing on this petition was held January 18, 1995 and was
continued on February 15, 1995 with the following Board Members
present: Stephen Touchette, Chairman; Gary Barrett, Nina Cohen,
Albert Hill 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, located at 31 Marlborough Road ,
was requesting enforcement of the Salem Zoning Ordinance and
revocation of the occupancy permit for the property located at 35
Marlborough Road for the reason that the 35 Marlborough Road property
lacks sufficient area and frontage to conform to the R-1 district
requirements.
The relief which has been requested may be granted upon a finding by
this Board that:
1. The lot known and numbered as 35 Marlborough Road does not meet
the minimum lot size of 15,000 square and minimum frontage of 100
feet as now required in an R-1 zone; and
2. The Building Inspector erred in failing to revoke the Occupancy
Permit for the 35 Marlborough Road property.
The Board of Appeal, after careful consideration of the evidence
presented at the hearing, makes the following findings of facts:
31 Marlborough Road
1. By deed dated November 23, 1970, Lionel J. Bouchard and Louise
Bouchard acquired title to the lot at 31 Marlborough.
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 Lionel J. and Louise Bouchard.
5. Lionel 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 35 Marlborough Road.
DECISION OF THE PETITION OF THOMAS M. DONOVAN, TRUSTEE OF Tw—TRAP,U, .
REALTY TRUST REQUESTING THE REVIEW OF THE DECISION OF THE ZO1NG
ENFORCEMENT REGARDING THE OCCUPANCY FOR THE PROPERTY AT 35
MARLBOROUGH ROAD (R-1) '95 MAR -6 P4 :10
page two
7 . On July 7, 1994, Robert Bouchard, conveyed the 35 Mer,ltorough.
Road property to its current owners, Richard and Cheri'S.��'derson:=,
CE
8. 35 Marlborough Road is reflected as Parcel 73 on Assessors' Map
8, and 31 Marlborough Road is reflected as Parcel 71 on said
Assessor;s 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
ownership commencing on November 30, 1970 by Lionel J. and Louise
Bouchard.
11. 31 Marlborough Road is a lot of approximately 5064 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 sq
feet to 15,000 square feet in a R-1 district.
14. Lionel and Louise Bouchard resided in a house situated on the
property at 35 Marlborough Road. Said home has been occupied
since that time, if not earlier, though this date. As of the
date, Richard and Cheri Anderson reside in the house situated on
the 35 Marlborough Road property.
15. Councilor Leonard O'Leary, Ward 4, opposed the petition.
16. Richard and Cheri Anderson, 35 Marlborough Road, opposed the
decision.
17. A letter dated February 2, 1995 from Robert LeDoux, City
Solicitor to Stephen Touchette, Chairman, Board of Appeals, was
made part of the record.
18. 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 basic 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 lots known as 31 Marlborough Road and 35
Marlborough Road respectively were non-conforming lots in as much
as the new Zoning Ordinance required a minimum lot size of 15,000
square feet.
3. As of the date of the 1977 Amendment to the Zoning Ordinance for
the City of Salem, the lots known as 31 and 35 Marlborough Road
were held in common ownership; said lots having been held in
common ownership since November 30, 1970.
4. The conveyance of the 35 Marlborough Road property to the
Andersons improperly subdivided the 31 and 35 Marlborough Road
DECISION OF THE PETITION OF THOMAS M. DONOVAN, TRUSTEE OF THE TRAPPER
REALTY TRUST REQUESTING REVIEW OF THE DECISION OF THE ZONING
ENFORCEMENT OFFICER FOR THE PROPERTY LOCATED AT 35 MARLBOROUGH ROAD
R-1 �.
page three
5. The house located on the 35 Marlborough Road property h b
occupied as a single family residence at least since th da#g o P4 .10
its ownership by Lionel and Lousie Bouchard to the present
date. Ci-" �._ Ori iCE
o . The Building Inspector committed no error in refusing togWvoize
the occupancy permit for the property at 35 Marlborough Road.
Therefore, the Board of Appeals originally voted two ( 2) in favor,
three (3) opposed to motion to grant the Petition of Thomas M.
Donovan, Trustee of the Trapper Realty Trust seeking enforcement of
the Zoning Ordinance and the revocation of the occupancy permit
for the property located at 35 Marlborough Road. Having failed to
garner the required four (4 ) affirmative votes to pass, the petition
is denied. Upon reconsideration, the Board voted zero (0) in favor,
five (5) opposed to aforementioned motion to grant, and the petition
was denied.
Petition Denied
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 of Special Permit granted herein
shall not take effect until a copy of the decision bearing the
certification of the City Clerk that20 days have elapsed and no
appeal has been filed, or that, if such appeal has been filed, that
is 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
PEARL, MCNIFF, CREAN, COOK & SHEEHAN
ATTORNEYS AT LAW
30 MAIN STREET
SAMUEL PEARL PEABODY, MASSACHUSETTS 01960-5597 AUDREY S. GORDON-
1190719951
SUSAN NEEL MOR RISONA
. JOHN M. CREAN PEABODY (508) 531-I 710
OLIVER T. COOK j BOSTON (617) 289-3456 OF COUNSEL
WILLIAM H. SHEEHAN III. PC FAX (508) 531-4895 JOHN A. MCNIFF
THOMAS C, REGA N, PC
ARTHUR J. FRAWLEY,JR.
MICHAEL T. SMERCZYNSKI, PC ALSO ADMITTED TO FLORIDA BPR
January 1998
City Clerk
City _all
Was'!,_- ngton Street n!
Salem, MA 01970 '
John J . Jermyn
- etition for Variance i-
U'
NOTICE OF FILING OF COMPLAINT
Dear Sir or Madam:
Notice is hereby given pursuant to G. L. c . 40A, §17, that
the enclosed Complaint has been today filed with the Superior
Cou_�: Department for Essex County appealing the December 17,
_ 5, decision of the Board of Appeal-s denying,_John_J. Jermyn' s
for variance concerning�96 Marlborough Road, �Salem,
decision was filed with the City Clerk on December 23 ,
Very truly yours,
I
L
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Thomas C. Regan
z - nOCKET NUMBER '- 1
Trial '.Court of Massachusetts
CIVIL ACTION COVER :SHEET SUPERIOR COURT DEPARTMENT . '
918 004
Essex Division
PLAINTIFF(S) - - f:b TIG .a V V;v Jae. '0EFENDANT(S)F`J .
,+ Gary Barrett, Nina Cohen, Albert Hill,
John J. Jermyn PIP, � ''• F R chard Dionne and Paul ValaskatQis, Members
of the Board of A eals for the Cit of Salem
ATTORNEY(S)FIRM NAME,ADDRESS AND�TEL.) '.• r.l 89Ci 4 !AFrORNEY(S)(i(kmmn)
Thomas C. Regan, Esquire, BB0.,11i;55149:9 _fvi ;cii = 'il ses svr, ej
Pearl, McNiff, Crean, Cook & Sheehan
30 Main Street, Peabody, MA 01.9,60, t;, ;,9".; to Ano 'lino
Board of Bar Overseers # (Required) (978) 531-1710
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CODE NO:ao n g TYPE,OF ACTION (specify) (B)-(8)E.z TRACK Is,
,c aSyTHIS q�JURY CASES ,
CO2'r Zonin"s Appeal,', l;^nCt BrJ(F ) .I]arNes - \[Z1 +No
w,a '..�.. Y11TOlM;Y
1. PLEASE'GIVE A GONCISE,STATEMENT OF THE FACTS:ZRYegw�eb ��►l L Types,of AeUnons�,tfo C
The _plaintiff is :apgr,}eve& by a,decision by ,the defe duns membexs of the:Sahem Board
of•Appeals to.;deny fhe;,plaintiff's petition tf a y�aE�a pe u Tl}e plaintiff .appeals in
accordance with.c 40A, ;417. {e
2. IN A CONTRACT ACTION (CODE A) OR A TORT ACTION (CODE••B)',STATE, WITH PARTICULARITY,.
MONEY DAMAGES WHICH WOULD WARRANT.A REASONABLE LIKELIHOOD THAT RECOVERY
WOULD EXCEED$25,000:
N/A
3. PLEASE IDENTIFY, BY CASE NUMBER, NAME AND DIVISION, ANY,RELATED ACTION PENDING
IN THE SUPERIOR COURT DEPARTMENT.
SIGNATURE OF ATTOR RECORD OR PLAINTIF DATE
1/9/98
, .
DISPOSITION RECEIVED
A. Judgment Entered B. No Judgment Entered BY:'
❑ 1. Before jury trial or non-jury hearing ❑ 6.Transferred to District DATE
❑ 2. During jury trial or non-jury hearing Court under G.L. c.231, DISPOSITION ENTERED
❑ 3. After jury verdict s.102C.
❑ 4. After court finding Disposition Date BY.
❑ 5. After post trial motion IDATE'
OCA.16-mtc 005-6/91 n. r_ov uecCro n'rc.0 CrIOV
JAN
COMMONWEALTH OF MASSACHUSETT91F t:'..i p.. 14ASS
Ci I ii ri`S Ci i iCF
Essex, ss . Superior Court Department
Civil Action No. r `
JOHN J. JERMYN, )
PLAINTIFF )
VS . )
GARY BARRETT, NINA COHEN, )
ALBERT HILL, RICHARD DIONNE, )
AND PAUL VALASKATGIS, AS THEY)
ARE MEMBERS OF THE CITY OF )
SALEM BOARD OF APPEALS, )
DEFENDANTS )
COMPLAINT
Now comes the plaintiff John J. Jermyn and files the within
action as an appeal of a decision of the City of Salem Board of
A.00ca_s pursuant to G.L . c . 90A, §17 .
The plaintiff John J. Jermyn is an individual who
.s at 146 Marlborough Road, Salem, Essex County,
;setts .
The defendants Gary Barrett , Nina Cohen, Albert Hill,
__. :. .... _ :i donne and Paul Valaskatgis , are named herein in their
: :.y as members of the Board of Appeals for the City of Salem
collectively referred to as the "Board" )
On December 17 , 1997 , the Board held a hearing on
' s petition for a variance from certain provisions of
ina ordinance for the City of Salem. Said petition
_a a parcel of land located at 96 Marlborough Road, Salem,
Massachusetts .
4 . The Board denied said petition on December 17, 1997 .
Said decision denying said petition was filed with the City Clerk
on December 23 , 1997 . A copy of said decision as well as a copy
of the notice of filing of said decision with the City Clerk are
attached hereto and marked "A. "
5 . The plaintiff is aggrieved by said decision. Said
decision exceeded the authority of the Board. Among other facts
pertinent to this appeal, the said land at 96 Marlborough Road
consists of 5 , 000 square feet, as shown by the deed dated July
29 , 1956 , from the City of Salem to the plaintiff, attached
hereto and marked "B . "
Wherefore, the plaintiff demands that judgment enter for him
and against the Board and that, further, this Court order that
the decision of the Board be annulled, and for any other relief
the Court deems meet and. just .
Respectfully submitted,
John J. Jermyn,
By his Attorney,
Thomas C. Regan
Pearl , McNiff, Crean, Cook &
Sheehan
30 Main Street
Peabody, MA 01960
Telephone : (978) 531-1710
Dated : January 8 , 1998
A
ofttlem, fflaseadjueetts
C;! Y A'-! 14MASS
(" 1 0:"—, Ci FICF
DECISION ON THE PETITION OF JOHN J. JERM,YR'REQUESTING A VARIANCE
FOR THE PROPERTY TOCATED AT 96 MARLBOROUGH ROAD (R-1)
A hearing on this petition was held December 17, 1997 with the
following Board Members present: Gary Barrett, Chairman, Nina Cohen,
Albert Hill, Richard Dionne and Paul Valaskatgis. 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 requests a Variance on lot area & lot width to build a
single family home for the property located at 96 Marlborough Rd.
The Variance which has 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
U
b. Literal enforcement of the provisions of the Zoning Ordinance
would involve substantial hardship,financial or otherwise, to the
Petitioner .
Desirable relief may be granted without substantial detriment to
the public good and without nullifying or substantially derogating
`rom 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, makes the following findings of facts:
: . The petition was presented by John J. Jermyn, trustee to the
property. Relief from lot size was asked for size being only 4924
square feet , and relief from frontage was another issue, only
-C feet exists .
Se.eral abutters appeared and spoke in opposition to the
petition. They were, Artnur Bates, 4 Vista Ave. , Thomas Ciereno,
1/2 Vista Ave. , Janes Gautreau, 92 Marlborough Road, and Dan
Dandreo of Rock Ave. Swampscott cousin of James Cautreau.
the basic of the above findings of fact , and on the evidence
p-esented at the hearings , the Board of Appeal concludes as follows:
: . No sGec al Conditions exist will C}1 especially afieCt the
sub—lect property as opposed to the district in general .
..-Iteral enforcement of the Zoning Ordinance would not involve
substantial hardship to the petitioner .
DECISION OF THE PETITION OF JOHN J. JERMYN REQUESTING A
VARIANCE FOR THE PROPERTY LOCATED AT 96 MARLBOROUGH ROAD R-1
page two
3. Desirable 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
thepurposeof the Ordinance.
Therefore, the Board of Appeal voted 2 in favor and 3 in opposition
to the motion to grant the Variance, having failed to garner the
required votes to pass, the motion is defeated and the petition is
denied.
Variance Denied
December 17, 1997
Paul Valaskagis, Member
Board of Appeal
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND
THE CITY CLERK
Appeal from this decision, if any, shall be made pursuant to Section
17 of 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 of Special Permit granted herein
shall not take effect until a copy of the decision bearing the
a
certification of the City Clerk that20 days have elapsed and no
appeal has been filed, or that, if such appeal has been filed, that
is 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
fllitu of ,'5ttlem, 'fflussadjusetts
a4 ' Pnara of �, peal
DECEMBER 23, 1997
YOU ARE HEREBY NOTIFIED THAT AS OF DECEMBER 23, 1997 THE DECISION OF
THE BOARD OF APPEAL HAS BEEN FILED IN THE OFFICE OF THE CITY CLERK TO
GRANT THE PETITION OF JOHN J. JERMYN REQUESTING TO A VARIANCE
FOR THE PROPERTY LOCATED AT 96 MARLBOROUGH ROAD.
PETITION GRANTED
BOARD OF APPEAL
0 /�aJ
SALLY C. RTAGH
CLERK OF THE BOARD
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY
CLERK.
=.ppeal from this decision, if any, shall be made pursuant to Section 17, of
"'GL Chapter GOA, and shall be filed within 20 days after the date of film-
of this decision in the office of the City Clerk. Pursuant to MGL Chapter'
40A. , Section 11, the Variance/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
she owner of record or is recorded and noted on the owner' s Certificate of
title.
Board of Appeal
SW"
.
CITY OF SALMI, a municipal corporation duly established In the Codi,st..>daet
a and Commonwealth of Ihewohasetts, in mmideretias of One &sdred ($=.OP) Dallas
3; 'y
plea taxer for the rerLring portion Of the year 1936. Rano to JeMa R. Jago of
Sales, Last County, Maosaohaeatte, Om (1) lot of so called 4ow Talon lands aegdred .
,
by the City of Sala Y result of Tat Title Forecles.se, listed and described as
follows,
LDT no, 360 MARLBORDCOB ROAD - containing = q. It. formerly *word by Catherine
1; ginsstt. Acquired by the City of Sales in 1952. Title reference see Deed Book No.3948
Pap No. 399 filed in Aeat County, South District, Registry of Deods. Thin parcel
of lend is shown on plan of "West )bed HeigMow tiled in Plan Book No. 55 Plan No. Al
filed in Leet County, South District, Registry of Deeds.
II MITXM WHERICF the said City of Sales has caused its corporaia goal to be
hereto affixed and wN presents to be executed, acknowledged and delivered in its
case and behalf MaCollins, yor'. . copy by yon Francis 1. Collins its Ih hrr�to duly asthw3sd ors o:
which Autborisatim by roto of the City Council ander date±of April ly, 19" ta
-" recorded in Noses County, South District, Registry of Deeds.
Dated this 2Ath day of July, 1956. -
i
CITT OF SALAI
.p App Y to fors,
!
City S itor
I'll
J
July 14„ 1956
COMKONYRALTB OF XW3ACxoSETT3
'r Sales, Mase.
Loaf, as. .
Then personally appeared the above Francis 1. Collins, Mayor of the City of Salem,
and acknowledged the foregoing Instrument to be his free act and deed in the mm
' • �� and behalf of the City of Sales, being duly authorised in the promisee by vabe of
111
the City Council of said City of Sales, before r.
- F-DeYmloeim expires May 8, 1963.
\ c Jere Jy
, TZ .'Notary Public
I;. ZBWM Be. Recorded Jn17 30, 1956 55 m• Deet 12 P M #137
F S
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n �y