41 MASON STREET - ZBA (3) COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.
BING REALTY TRUST, STEPHEN,
W. HALEY, TRUSTEE, ) ��
PlaintiffsIV j FOR THF tjPERIOHC0UNC0ORT
VS. ) v OF Esse
J4 2013
REBECCA CURRAN, JAMIE METSCH, )
ANNIE HARRIS, MICHAEL DUFFY, )
BONNIE BELAIR,JIMMY TSITSINOS and
RICHARD DIONNE, as they constitute the )
ZONING BOARD OF APPEALS OF THE )
CITY OF SALEM, )
Defendants )
NOTICE OF APPEAL
Notice is hereby given pursuant to M.G.L.Chapter 40A, Section 17,that an Appeal has been
filed with the Superior Court Department, Essex Division, on January �, 2013 appealing a
Decision of the City of Salem Zoning Board of Appeals dated December 26,2012 and filed with the
Salem City Clerk on January 2, 2013. Said Decision denied an Application for a Variance filed by
the Plaintiff, Stephen W. Haley, Trustee, concerning the real estate located at 41 Mason Street,
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Salem,Massachusetts wherein the Board denied the amendment of Variance granted on March 19,
2003 in which the petitioner requested an amendment to certain hours of operation under the original
Variance.
Respectfully submitted,
BING REALTY TRUST, STEPHEN W. HALEY,
TRUSTEE
By its attorney,
Jo R. I eilty, quire BO#264360
40 Lowell Str et
Peabody, MA 01960
(978) 531-7900
Dated: January , 2013
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 13 -9�
BING REALTY TRUST STEPHEN
W. HALEY, TRUSTEE,
Plaintiffs
FILE®
VS.
IN THE SUPERIOR COURT
) FOR THE COUNTY OF ESSEX
REBECCA CURRAN, JAMIE METSCH, ) JAN 18 2013
ANNIE HARRIS, MICHAEL DUFFY, )
BONNIE BELAIR,JIMMY TSITSINOS and
RICHARD DIONNE, as they constitute the ) C_ LERi�
ZONING BOARD OF APPEALS OF THE )
CITY OF SALEM, )
Defendants )
COMPLAINT
Now comes the Plaintiff in the above-captioned matter and states the following:
1. Judicial Review is hereby requested under the provisions of Massachusetts
General Laws, Chapter 40A, Section 17, as amended, of the Decision of the Board of Appeals of
the City of Salem dated December 26, 2012, filed with the City Clerk of the City of Salem on
January 2, 2013, insofar as it relates to the premises located at 41 Mason Street, Salem, Essex
County, Massachusetts.
2. The Plaintiff, Bing Realty Trust, Stephen W. Haley, Trustee resides at 41 Mason
Street, Salem, Essex County, Massachusetts and 111 Birch Street, Salem, Essex County,
Massachusetts respectively.
3. That the Plaintiff, Bing Realty Trust, Stephen W. Haley, Trustee is the owner of
the real property located at 41 Mason Street, Salem, Essex County, Massachusetts by virtue of a
Deed from Joseph A. Jones recorded at the Essex South District Registry of Deeds in Book
18794, Page 179, and which is identified on the City of Salem Assessors' Parcel ID 26-0087-0.
4. That the Defendant, Rebecca Curran, is an individual residing at 14 Clifton
Avenue, Salem, Essex County, Massachusetts, who at all times material hereto was the Chairman
and a member of the Zoning Board of Appeals of the City of Salem.
5. That the Defendant,Jamie Metsch, is an individual residing at 18 Oliver Street,
Apt. 92, Salem, Essex County, Massachusetts, who at all times material hereto was a member of
the Zoning Board of Appeals of the City of Salem.
6. That the Defendant, Annie Harris, is an individual residing at 28 Chestnut Street,
Salem, Essex County, Massachusetts, who at all times material hereto was a member of the
Zoning Board of Appeals of the City of Salem.
7. That the Defendant, Michael Duffy, is an individual residing at 1 Warren Court,
Salem, Essex County, Massachusetts, who at all times material hereto was a member of the
Zoning Board of Appeals of the City of Salem.
8. That the Defendant, Bonnie Belair, is an individual residing at 102A Wharf Street,
Salem, Essex County, Massachusetts, who at all times material hereto was a member of the
Zoning Board of Appeals of the City of Salem.
9. That the Defendant, Jimmy Tsitsinos, is an individual residing at 6C Wharf Street,
Salem, Essex County, Massachusetts, who at all times material hereto was a member of the
Zoning Board of Appeals of the City of Salem.
10. That the Defendant, Richard Dionne, is an individual residing at 23 Gardner
Street, Salem, Essex County, Massachusetts, who at all times material hereto was a member of
the Zoning Board of Appeals of the City of Salem.
11. That the Court has jurisdiction of this matter pursuant to Massachusetts General
Laws, Chapter 40A, Section 17 as it constitutes an appeal from the Decision of the Zoning Board
of Appeals of the City of Salem, a certified copy of said Decision is attached hereto as Exhibit
"A"
12. That on or about November 7, 2012, the Plaintiff, Bing Realty Trust, Stephen W.
Haley, Trustee filed an "Application for Variance, or Other Relief' with the Board of Appeals of
the City of Salem(see Application attached hereto marked for identification as Exhibit "B")
requesting a "variance to amend a condition of an original variance dated March 27, 2003
allowing a dance studio to stay open until 9:00 p.m."
13. That the property is located in an BP Zoning District.
14. That a Public Hearing was held on December 19, 2012, after being advertised in
The Salem News on December 5, 2012 and December 12, 2012.
15. That on December 19, 2012, the Board of Appeals on the application of the
Plaintiff, Bing Realty Trust, Stephen W. Haley, Trustee, voted to deny an amendment to a
previously granted Variance from the provisions of the Zoning Ordinance as it applies to the
premises known as 41 Mason Street, Salem, Massachusetts, as set forth in the Decision of the
Board of Appeals of the City of Salem dated December 26,2012 and filed with the City Clerk of
the City of Salem on January 2, 2013, a copy of which is attached hereto as set forth herein as
Exhibit "A".
16. That the Decision of the City of Salem Board of Appeals failed to set forth any
reasons upon which they could base a decision of the Board of Appeals in accordance with the
criteria set forth in Massachusetts General Laws, Chapter 40A, Section 10, which requires that
the granting of variances be in substance as follows:
"... to grant upon appeal or upon petition with respect to particular land or
structures a variance from the terms of the applicable zoning ordinance or
by-law where such permit granting authority specifically finds that owing
to circumstances relating to the soil conditions, shape, or topography of
such land or structures and especially affecting such land or structures but
not affecting generally the zoning district in which it is located, a literal
enforcement of the provisions of the ordinance or by-law would involve
substantial hardship, financial or otherwise, to the petitioner or appellant,
and that the desirable relief may be granted without substantial detriment
to the public good and without nullifying or substantially derogating from
the intent or purpose of such ordinance or by-law...".
17. That the Decision of the City of Salem Board of Appeals denying the variance
cannot stand unless the Board specifically finds that the statutory requirement for hardship
running with the land has not been met.
18. That the Decision of the Defendant, Zoning Board of Appeals, is inadequate on its
face and fails to set forth sufficient grounds for the denial of the variance application.
19. That the Decision of the Defendant, Zoning Board of Appeals, exceeds the
authority of the Board, is based on legally untenable grounds, is unreasonable, capricious and
arbitrary.
20. That on January, CL, 2013, the Plaintiff gave notice of this appeal to the City
Clerk of the City of Salem.
WHEREFORE, the Plaintiff prays:
1. That the Court hear the evidence and determine the facts and upon the facts so
determined, order, decree and adjudge that the Defendant, Zoning Board of Appeals' Vote and
Decision of December 26, 2012 is invalid, of no force or effect and that said Decision be
annulled;
2. That the Court award the Plaintiffs their costs and attorney's fees in this action;
and
3. For such other and further relief as this Honorable Court deems reasonable and
just.
Respectfully submitted,
BING REALTY TRUST, STEPHEN W.
HALEY,TRUSTEE
By its attorney,
i
ohn R. eil squ' BBO #264360
40 Lowe treet
Peabody, MA 01960
(978) 531-7900
Dated: January 2013
Exhibit "A"
�bNo`T� CITY OF SALEM, MASSACHUSETTS
hP BOARD OF APPEAL
a ^
i t^�{�1 �11AeA Nt�' /� (�, r�
' y � 120 WASHING ION SIRLF"I'♦ S.V.LM,MASSNIIS l,[J 070 A IU 19
_�IlNED� 'IY:Le:978-619-5685 FAX:978-740-0404
KINIBERLGY DRISCOLL FILE #�t."O2 CITY CLERK, SALEM,MASS,
December 26, 2012
Decision
City of Salem Zoning Board of Appeals
Petition of BING REALTY TRUST seeking to amend a previously issued Variance decision
in order to change the allowed hours of operation of the dance studio located in the building
on 41 MASON ST (NRCC).
A public hearing on the above Petition was opened on December 19, 2012 pursuant to Mass
General Law Ch. 40A, § 11. The hearing was closed on December 19, 2012 with the following
Zoning Board of Appeals members present: Rebecca Curran (Chair),Annie Harris, Michael Duffy,
Richard Dionne,and Jimmy Tsitsinos (alternate).
Petitioner seeks to amend a Variance granted on March 19, 2003 for the property located at 41
Mason Street,Salem.
Statements of fact:
1. In a decision date-stamped March 27, 2003, owner Stephen W. Haley received Variances
from side and rear setbacks, parking and density requirements to construct an addition on
the building located at 41 Mason Street.
2. A condition of issuance of the Variances was a restriction of the hours of operation of the
building from 7:00 a.m. to 6:00 p.m.
3. In a petition date-stamped November 7, 2012,petitioner requested to amend the condition
of the Variance restriction hours for the dance studio only, to allow it to stay open until 9:00
p.m.
4. Attorney John R. Keilty, 40 Lowell Street, represented the petitioner at the hearing.
5. At the hearing, several neighbors spoke against the petition, citing concerns about noise,
traffic, parking and congestion on and around the site.
6. At the hearing, many students, parents and teachers from the dance studio spoke in support
of the petition, saying that noise, parking and traffic issues were minimal, the studio was
1
surrounded by businesses as well as residences, and it served youth and the community in a
positive way.
The Board of Appeals, after careful consideration of the evidence presented at the public hearing,
and after thorough review of the plans and petition submitted, makes the following findings:
1. While the existence of the dance studio was not problematic,relief to extend the hours of
operation to 9:00 p.m. could not be granted either without detriment to the public good or
without nullifying or substantially derogating from the intent or purpose of the zoning
ordinance, since the expansion of the building in 2003 only occurred under the condition that
business operations on the site be restricted to 6:00 p.m., and the Board finds that operations
after this hour are disruptive to the neighborhood.
On the basis of the above findings of fact and all evidence presented at the public hearing including,
but not limited to, the Plans, Documents and testimony, the Zoning Board of Appeals voted two (2)
in favor(Dionne and Tsitsinos) and three (3) opposed (Curran, Harris and Duffy), to grant the
requested amendment to the previously issued Variance. The petition is denied.
Rebecca Curran, Chair
Salem Board of Appeals
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND
THE CITY CLERK
Appeal from this decision, if any, shall he made pursuant to Section 17 of the Massachusetts General
Laws Chapter 40A,and shall be filed within 20 days of filing of this decision in the office of the City
Clerk. Pursuant to the Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special
Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the
City Clerk has been filed with the Essex South Registry of Deeds.
2
Exhibit "B"
ZONING BOARD OF APPEALS
PETITION FORM
n�n�rq/ CITY OF SALEM,MASSACHUSETTS 1UI2 NOV —1 All: 09
SYS `, 4a5m ZONING BOARD OF APPEALS
120 WASHINGTON STREET,3RD FLOOR FILE #
SALEM,2vL9SSACHUSETTS01970 CITY CLERK, SALEM. MASS.
a 3 a
9nN 4 s e„ Thomas St.Pierre,Director of Inspectional Services
6tMLYg pow t.978-619-5641/f.978-740-9846 '
-"- Danielle McKnight,Staff Planner
t.978-619-5685/f.978-740-0404
TO THE BOARD OF APPEALS:
The Undersigned represent that he/she is/are the owners of a certain parcel of land located at:
Address:41 Mason Street, Salem, MA Zoning District: 216-0087-0-BP
An application is being submitted to the Board of Appeal for the following reason(s): This statement must
describe what you propose to build the dimensions,,the zone property is in, and the zoning requirements. Example.,
I am proposing to construct a 10'x 10'one story addition to my home located at 3 Salem Lane, in the R-2 Zoning
District. The Zoning Ordinance requires the minimum depth of the rear yard to be 30 feet. The current depth of my
rear yard is 32 feet;the proposed addition would reduce the depth of the rear yard to 22 feet.
The Petitioner seeks to amend a decision of the Salem Zoning Board of Appeals
granted on March 19, 2003 as it applies specifically to the hours of operation
(Condition #11) so as to provide for amended hours of operation for Dance
Enthusiasm, a dance studio being 7:00 a.m. to 9:00 p.m.
For this reason I am requesting:
( )Variance(s)from provisions of Section of the Zoning Ordinance,specifically from
I
(i.e. minimum depth of rear yard).
What is allowed is (ft?sgft?stories? %?), and what I
am proposing is (ft?sqfl?stories? %?).
( )A Special Permit under Section of the Zoning Ordinance in order to
( )Appeal of the Decision of the Building Inspector(described below):
The Current Use of the Property Is: Are the lot dimensions included on the plan?
(example: Two Family Home) Lipht Commercial O Yes (>§No n/a because n0 re nest for
Mixed Use dimensional retie
The Undersigned hereby petitions the Board of Appeals to vary the terms ofthe Salem Zoning Ordinance and allow
the project to be constructed as per the plans submitted,as the enforcement of said Zoning By-Laws would involve
practical difficulty or unnecessary hardship to the Undersigned and relief may be granted without substantially
derogating from the intent and purpose of the Zoning Ordinance.
ZONING BOARD OF APPEALS
PETMON FORM
The following written statement has been submitted with this application:
( )For all Variance requests a written Statement of Hardship demonstrating the following must be attached:
a) Special conditions and circumstances that especially affect the land,building,or structure involved,
generally not affecting other lands,buildings,and structures in the same district;
b) Literal enforcement of the provisions of the Ordinance would involved substantial hardship to the
applicant;and
c) Desirable relief may be granted without substantial detriment to the public good,and without nullifying or
substantially derogating from the intent of the district or the purpose of the ordinance.
( )For all Special Permit requests a Statement of Grounds must be attached. An application for a special permit for
a nonconforming use or structure shall include a statement demonstrating how the proposed change shall not be
substantially more detrimental than the existing nonconforming use to the neighborhood in accordance with Art.V,
§5-3. Such a statement should include reference to the following criteria:
a) Social,economic,or community needs served by the proposal;
b) Traffic flow and safety,including parking and loading;
c) Adequacy of utilities and other public services;
d) Impacts on the natural environment, including drainage;
e) Neighborhood character;and
f) . Potential fiscal impact, including impact on City tax base and employment.
Previous applications to the Board of Appeals involving this property have been submitted with this petition
form. The Building Commissioner can provide documentation ofprevious applications to the petitioner or his
representative.
If different from petitioner:
Petitioner: Bing Realty Trust Property Owner: "Same"
Address: 43 Mason St., Salem, MA Address:
Telephone:(781) 2 8-7895 Telephone:
tgnamre Signature(Attached consent letter is also acceptable)
November 1, 2012flV'K
Date Date
If different from peddoner:
A TRUE Representative: John R. Keilty, Esq.
ATTEST
Address: 40 Lowell St., Peabody, MA
Telephone:(978) 531-7900
Signature
November 1, 2012
Date
DATE SUBMITTED TO
BOARD OF APPEALS:
CITY CLERK
This original application must be filed with the City Clerk.
CITY OF SALEM, SACHUSETTS
1 � BUILDING DEPARTMENT
3, 120 WASHINGTON STREET,3" FLOOR
TEL. (978) 745-9595
KIMBERLEY DRISCOLL FAX(978) 740-9846
MAYOR THOMAS ST.PIERRE
DIRE CTOR OF PUBLIC PROPE RTY/BUIMING COMMISSIONER
August 1, 2012
_ BingRealty-Trust — --- —.. — — -- ---
Att. Stephen Haley-Trustee
43 Mason Street
Salem Ma. 01970
R.E Zoning Decision-41 Mason Street
Dear Mr.Haley,This Department has received complaints and has been copied the zoning decision for 41
Mason Street heard back on March 19,2003.In this petition,relief was granted to construct an addition to the
rear of 41 Mason Street. Several Standard conditions were recorded as well as conditions #8,#9,#10 and#11.
Condition#11 stated that the hours of operation shall be between 7:00 A.M. and 6:00 P.M. This condition is the
subject of the complaint. Specifically the dance studio and the H.E.S group.. Therefore you are directed to
cease and desist operations between the hours of 6:00 P.M and 7:00 A.M.
If you feel you are aggrieved by my interpretation this order,your appeal is to the Salem Zoning Board of
Appeals.
Si erely
Thomas St.Pierre
cc. Att Robin Stein, Att. Mark Nestor
i
c
• .. BOARD OF APPEAL•: . . �i� � ( � �{P` Ell, MA
<- W..SH Ne TON STREET, 3RD FLOa. CLERK'S OFFICE
SALEM, MA 01970
TEL. (978) 745-9595
FAX (978) 740-9846
STANLEY J. USOVICZ, JR.
MAYOR .1001 MAR 21 A 10: 41
DECISION OF THE PETITION OF STEPHEN W. HALEY REQUESTING
A VARIANCE FOR THE PROPERTY LOCATED AT 41 MASON STREET I
A hearing on this petition was held March 19, 2003 with the following Board Members
present: Nina Cohen, Nicholas Helides, Stephen Harris, Bonnie Belier and Joseph
Barbeau. 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.
The petitioner is requesting Variances from side and rear setbacks, parking and density
requirements to construct an addition for the property located at 41 Mason Street located
in an I zone.
The Variances, which have been requested, may be granted upon a finding by this
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 and
structure involve.
b. Literal enforcement of the provisions of the Zoning Ordinance would involve
substantial hardship, financial or otherwise, to the petitioners.
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 of 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. Petitioner Stephen Haley owns and operates Crown Auto Supply, a wholesale
auto parts business located at 45 Mason Street adjacent to the subject property.
Several other businesses also operate at the 45 Mason Street property, and Mr.
Haley currently holds a license to offers used cars for sale at 43 Mason Street,
2. Petitioner seeks to renovate a former tannery building at 41 Mason Street for
commercial and light industrial use. The existing structure is nonconforming as
to minimum lot area, frontage, front and side yard setbacks, and it does not offer
sufficient off street parking to meet the requirements of the ordinance for
commercial or industrial use.
3. Architect Richard Griffin of 37 Turner Street, Salem, detailed the proposed
renovation. A three story wood structure at the Mason St. property line is
unsound and it will be demolished A single story brick structure behind the wood
DECISION OF THE PETITION OF STEPHEN HALELY REQUESTING A
VARIANCE FOR THE PROPERTY LOCATED AT 41 MASON STREET i
page two
structure has been gutted and cleaned; it has been determined to be free of
contamination arising from its former use. Mr. Haley proposes to construct
commercial offices within the existing walls of the brick building and to create a new
single story addition on the southeast corner of the property. The new space will be
used for his existing business and for other commercial uses consistent with the
business now operating in the adjacent properties. The new addition will have a 2-
foot setback and a rear setback of 2 feet. The new space will be used for this
existing business and for other commercial uses consistent with businesses now
operating in the adjacent properties.
4. Ward 5 City Councillor Mike Bencal reported that Mr. Haley met with neighbors in
July 2002 to explain the project, and that the neighborhood was in favor of granting
The variances. Eric Easley of 35 also voiced support for Mr. Haley's project
Mason Street and Arthur Parent of 39 Mason Street.
On the basis of the above findings of fact, and on, the evidence presented at the
hearing, the Zoning Board of Appeal concludes as follows
1. Special conditions exist which especially affect the subject property but not the
District.
2. Literal enforcement of the provisions of the Zoning Ordinance would involve
substantial hardship to the petitioner.
3. Desirable relief can 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.
Therefore, the Zoning Board of Appeal voted 5-0 to grant the Variances requested,
subject to the following conditions;
1. Petitioner shall comply with all city and state statutes, ordinances, codes and
regulations.
2. All requirements of the Salem Fire Department relative to smoke and fire safety shall
be strictly adhered to.
3. All construction shall be done as per plans submitted and approved by the Building
Commissioner.
4. Petitioner shall obtain a building permit prior to beginning any construction.
5. Exterior finishes of the new construction shall be in harmony with the existing
structure.
6, Petitioner shall obtain a Certificate of Inspection.
DECISION OF THE PETITION OF STEPHEN HALEY REQUESTING A VARIANCE
FOR THE PROPERTY LOCATED AT 41 MASON STREET I
page three
7. Petitioner shall obtain approval from any City Board or Commission having
jurisdiction including but not limited to the Planning Board.
8. No neon signs are to be used.
9. There shall be no outside storage.
10. There shall be no automotive repairs.
11. Hours of operation shall be between 7:00 a.m. and 6:00 p.m.
VARIANCE GRANTED
MARCH 19, 2003
Nina Cohen, Chairman Cs c'��
Board of Appeal
A COPY OF.THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND
THE CIITY 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 day
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
certificate of the City Clerk that 20 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
I
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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.
BING REALTY TRUST, STEPHEN, )
W. HALEY, TRUSTEE, )
Plaintiffs )
vs. )
REBECCA CURRAN,JAMIE METSCH, )
ANNIE HARRIS, MICHAEL DUFFY, )
BONNIE BELAIR,JIMMY TSITSINOS and )
RICHARD DIONNE, as they constitute the )
ZONING BOARD OF APPEALS OF THE )
CITY OF SALEM, )
Defendants )
AFFIDAVIT OF NOTICE
NOW COMES,John R.Keilty,Esquire of 40 Lowell Street,Peabody,Massachusetts 01960
who states as follows:
1. That I am the attorney of record for the Plaintiff,Bing Realty Trust,Stephen w.Haley,
Trustee, in the above-entitled matter.
2. That on January j9_1 2013, a Notice of Appeal and a copy of the Complaint filed
with the Superior Court Department, Essex Division,was filed with the City Clerk's Office for the
City of Salem,Massachusetts. A copy of said Notice of Appeal and Complaint,stamped as received
by the City of Salem Clerk's Office, is attached hereto as Exhibit "A".
3. That the Clerk's Office for the City of Salem,Massachusetts,has been put on notice
of said appeal.
a
i
Signed under the penalties of perjury this— 9—day of January, 2013.
John-R £eilty, uire BO #264360
�40 Lowell Street
Peabody, MA OIVO
(978) 531-7900
Dated: January , 2013
i
TRIAL COURT OF MASSACHUSETTS
FNTTI
VER SHEET SUPERIOR COURT DEPARTMENTDOCKET NO. I.3 ' 9�
COUNTY ESSEX
OF
NG REALTY TRUST, STEPHE REBECCA CURRAN, ET ALS AS THEY
HALEY, TRUSTEE DEFENDANT(S)CONSTITUTE THE ZONING BOARD OF
APPEALS OF THE CITY OF SALEM
Type Plaintiffs Attorney name,Address,City/State/Zip Type Defendant's Attorney Name, Address, City/State/Zip
Phone Number and BBO# Phone Number(If Known)
John R. Keilty, Esquire (978) 531-7900 Elizabeth M. Rennard, Esquire (978) 745-9595
Salem City Hall
40 Lowell Street 93 Washington Street
Peabody, MA 01960 Salem, MA 01970
BSO#26436
D
TYPE OF ACTION AND TRACK DESIGNATION(See reverse side)
CODE NO. TYPE OF ACTION(specify) TRACK IS THIS A JURY CASE?
CO2 Zoning Appeal G L c 40A - Fast Track I Yes (9 I No
The following is a full, itemized and detailed statement of the facts on which plaintiff relies to determine
money damages. For this form,disregard double or treble damage claims; indicate single damages only.
i
i'
4 TORT CLAIMS
(Attach additional sheets as necessary)
A. Documented medical expenses to date:
1. Total hospital expenses $
2. Total doctor expenses $
3. Total chiropractic expenses $
4. Total physical therap expenses $
5. Total other expenses describe) $
B. Documented lost wages and compensation to date Subtotal $$
C. Documented property damages to date $
D. Reasonably anticipated future medical expenses $
E. Reasonably anticipated lost wgges and compensation to date $
F. Other documented items of damages (describe)
G. Brief description of plaintiffs injury,including nature and extent of injury (describe)
Total$
CONTRACT CLAIMS
(Attach additional sheets as necessary)
Provide a detailed description of claim(s):
Not Applicable
TOTAL $...............
PLEASE IDENTIFY,BY CASE NUMBER,NAME AND COUNTY,ANY RELATED ACTION PENDING IN THE SUPERIOR
COURT DEPARTMENT
Not Applicable
"I hereby certify that I have complied with the requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution(SJC
Rule 1:18)requiring that 1 provide my cligrlywith information about court-connected dispute resolution services and discuss with them the
advantages and disadvantages of the var o an hods'
Signature of Attorney of Recor ! Date: January ,2013
A.O.S.C.3-2007
CIVIL ACTION COVER SHEET INSTRUCTIONS
SELECT CATEGORY THAT BEST DESCRIBES YOUR CASE
* CONTRACTS . REAL PROPERTY MISCELLANEOUS
A01 Services,Labor and Materials F) C01 Land Taking(eminent domain) (F) E02 Appeal from Administrative
A02 Goods Sold and Delivered (F) CO2 Zoning Appeal,G.L.c.40A (F) Agency G.L.c.30A (X)
A03 Commercial Paper (F) CO3 Dispute concerning title (FI E03 Claims against Commonwealth
A08 Sale or Lease of Real Estate (F) C04 Foreclosure of mortgage (X) Cl Municipality (q)
Al2 Construction Dispute (A) C05 Condominium Lien&Charges (X) E05 Confirmation of Arbitration AwardsX
A99 Other(Specify) (F) C99 Other(Specify) (F) Awards (X)
E07 G.L. (Mary Moe) (X)
E03 Claims against Commonwealth (A) E03 Claims against Commonwealth JA) E08 Appointment of of Receiver (X)
or Municipality or Municipality E09 General Contractor bond,
EQUITABLE REMEDIES G.L.c.149,as.29,29a (A)
'TORT D01 Specific Performance of Contract (A) Ell Worker's Compensation (X)
B03 Motor Vehicle Negligence (F) D02 Reach and Apply (F) E12 G.L.c.123A,s.12(SDP Commitment) (X)
personal injury/property damage D06 Contribution or Indemnification (F) E14 G.L.c.123A,s.9(SDP Petition)
804 Other Negligence- (F) D07 Imposition of a Trust (A) E15 Abuse Petition,G.L.c.209A (X)
personal Injury/property damage D08 Minority Stockholder's Suit (A) E16 Auto Surcharge Appeal (X)
B05 Products LiabilityD10 Accounting (A)
(A) D12 Dissolution of Partnership (F) E17 Civil Rights Act,G.L.c.12,s.11 H (A)
B06 Malpractice-Medical (A) D13 Declaratory Judgment G.L.c.231A (A) E18 Foreign Discovery Proceeding (X)
607,1111alprectice-Other(Specify) (A) D99 Other(Specify) (F) E19 Sex Offender Registry G.L.c.178M,
808 Wrongful Death,G.L.c.229,s.2A(A) S.6 (X)
B15 Defamation(Libel-Slander) (A) E25 Plural Registry(Asbestos cases)
B19 Asbestos (A) E95 "Forfeiture G.L.C.94C,s.47 (F)
820 Personal Injury.slip&fall (F) E96 Prisoner Cases (F)
021 Environmental (F) E97 Prisoner Habeas Corpus (X)
B22 Employment Discrimination (F) E99 Other(Specify) (X)
B99 Other(Specify) (F)
E03 Claims against Commonwealth (A)
i 'Claims against the Commonwealth or a municipality are type E03, Average Track, cases.
"Claims filed by the Commonwealth pursuant to G L c 94C, s 47 Forfeiture cases are type
E95, Fast track.
r'
j, TRANSFER YOUR SELECTION TO THE FACE SHEET.
i+
EXAMPLE:
;t
�y CODE NO. TYPE OF ACTION(SPECIFY) TRACK IS THIS A JURY CASE?
Ie B03 Motor Vehicle Negligence-Personal Injury (F) I X j Yes I I
ttr
1
SUPERIOR COURT RULE 29
DUTY OF THE PLAINTIFF.The plaintiff or his/her counsel shall set forth,on the face sheet(or attach additional sheets as necessary),a
statement specifying in full and itemized detail the facts upon which the plaintiff then relies as constituting money damages.A copy of such civil
action cover sheet,including the statement as to the damages,shall be served on the defendant together with the complaint.If a statement of money
damages,where appropriate is not filed,the Clerk-Magistrate shall transfer the action as provided in Rule 29(5)(C).
DUTY OF THE DEFENDANT.Should the defendant believe the statement of damages filed by the plaintiff in any respect inadequate,he
or his counsel may file with the answer a statement specifying in reasonable detail the potential damages which may result should the plaintiff
prevail.Such statement,if any,shall be served with the answer.
A CIVIL ACTION COVER SHEET MUST BE FILED WITH EACH COMPLAINT.
FAILURE TO COMPLETE THIS COVER SHEET THOROUGHLY AND ACCURATELY
MAY RESULT IN DISMISSAL OF THIS ACTION,
NDfT CITY OF SALEM MASSACHUSETTS
BOARD OF APPEAL
�7 q 17 '�1 �l 1, 1
��q ® 120 WASHINGTON STREET+SALEM,MASsA41Is�O on?o A ID 1 9
TELE:978-619-5685 ♦ FAX:978-740-0404
KIMBERLEY DRISCOLL FILE
MAYOR CITY CLERK. SALEM, MASS.
December 26, 2012
Decision
City of Salem Zoning Board of Appeals
Petition of BING REALTY TRUST seeking to amend a previously issued Variance decision
in order to change the allowed hours of operation of the dance studio located in the building
on 41 MASON ST (NRCC).
A public hearing on the above Petition was opened on December 19, 2012 pursuant to Mass
General Law Ch. 40A, § 11. The hearing was closed on December 19, 2012 with the following
Zoning Board of Appeals members present: Rebecca Curran (Chair),Annie Harris, Michael Duffy,
Richard Dionne,and Jimmy Tsitsinos (alternate).
Petitioner seeks to amend a Variance granted on March 19, 2003 for the property located at 41
Mason Street, Salem.
Statements of fact:
1. In a decision date-stamped March 27, 2003, owner Stephen W. Haley received Variances
from side and rear setbacks, parking and density requirements to construct an addition on
the building located at 41 Mason Street.
2. A condition of issuance of the Variances was a restriction of the hours of operation of the
building from 7:00 a.m. to 6:00 p.m.
3. In a petition date-stamped November 7, 2012, petitioner requested to amend the condition
of the Variance restriction hours for the dance studio only, to allow it to stay open until 9:00
p.m.
4. Attorney John R. Keilty, 40 Lowell Street,represented the petitioner at the hearing.
5. At the hearing, several neighbors spoke against the petition, citing concerns about noise,
traffic, parking and congestion on and around the site.
6. At the hearing, many students,parents and teachers from the dance studio spoke in support
of the petition, saying that noise, parking and traffic issues were minimal, the studio was
1
surrounded by businesses as well as residences, and it served youth and the community in a
positive way.
The Board of Appeals, after careful consideration of the evidence presented at the public hearing,
and after thorough review of the plans and petition submitted, makes the following findings:
1. While the existence of the dance studio was not problematic, relief to extend the hours of
operation to 9:00 p.m. could not be granted either without detriment to the public good or
without nullifying or substantially derogating from the intent or purpose of the zoning
ordinance, since the expansion of the building in 2003 only occurred under the condition that
business operations on the site be restricted to 6:00 p.m., and the Board fords that operations
after this hour are disruptive to the neighborhood.
On the basis of the above findings of fact and all evidence presented at the public hearing including,
but not limited to, the Plans, Documents and testimony, the Zoning Board of Appeals voted two (2)
in favor (Dionne and Tsitsinos) and three (3) opposed (Curran, Harris and Duffy), to grant the
requested amendment to the previously issued Variance. AThe petition is denied.
Rebecca Curran, Chair
Salem Board of Appeals
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND
THE CITY CLERK
Appeal from this decision,if any, shall be made pursuant to Section 17 of the Massachusetts General
Laws Chapter 40A, and shall be filed within 20 days of filing of this decision in the office of the City
Clerk. Pursuant to the Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special
Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the
City Clerk has been filed with the Essex South Registry of Deeds.
2
ZONING BOARD OF APPEALS
PETITION FORM
� �oeotrl� CITY OF SALEM, MASSACHUSETTS 1012 NOV -1 A 111 I)q
v ZONING BOARD OF APPEALS
120 WASHINGTON STREET,31tD FLOOR FILL #
SALEM,MASSACHUSETTS 01970 CITY CLERK, SALEM, PLASS:
< �
Thomas St.Pierre,Director of Inspectional Services
��'GlgfAliS LtO t.978-619-5641/f.978-740-9846 - --
Danielle McKnight,Staff Planner
t.978-619-5685/f.978-740-0404
TO THE BOARD OF APPEALS:
The Undersigned represent that he/she is/are the owners of a certain parcel of land located at:
Address:41 Mason Street, Salem, MA Zoning District: 216-0087-0-BP
An application is being submitted to the Board of Appeal for the following reason(s): This statement must
describe what you propose to build, the dimensions, the zone property is in, and the zoning requirements. Example.
I am proposing to construct a 10'x 10'one story addition to my home located at 3 Salem Lane, in the R-2 Zoning
District. The Zoning Ordinance requires the minimum depth of the rear yard to be 30 feet. The current depth of my
rear yard is 32 feet; the proposed addition would reduce the depth of the rear yard to 22 feet.
The Petitioner seeks to amend a decision of the Salem Zoning Board of Appeals
granted on March 19, 2003 as it applies specifically to the hours of operation
(Condition #11) so as to provide for amended hours of operation for Dance
Enthusiasm, a dance studio being 7:00 a.m. to 9:00 p.m.
For this reason I am requesting:
O Variance(s)from provisions of Section of the Zoning Ordinance,specifically from
(i.e. minimum depth of rear yard).
What is allowed is (ft?sq ft?stories? %?), and what I
am proposing is. (ft?sq ft?stories?%?).
O A Special Permit under Section of the Zoning Ordinance in order to
( )Appeal of the Decision of the Building Inspector(described below):
The Current Use of the Property Is: Are the lot dimensions included on the plan?
(example: Two Family Home) Light Commercial O Yes ()�No n/a because no request for
Mixed Use dimensional relief
- The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem Zoning Ordinance and,allow
the project to be constructed as per the plans submitted,as the enforcement of said Zoning By-Laws would involve
practical difficulty or unnecessary hardship to the Undersigned and relief may be granted without substantially
derogating from the intent and purpose of the Zoning Ordinance.
ZONING BOARD OF APPEALS
PETITION FORM
The following written statement has been submitted with this application:
( )For all Variance requests a written Statement of Hardship demonstrating the following must be attached:
a) Special conditions and circumstances that especially affect the land,building,or structure involved,
generally not affecting other lands,buildings,and structures in the same district;
b) Literal enforcement of the provisions of the Ordinance would involved substantial hardship to the
applicant;and
c) Desirable relief may be granted without substantial detriment to the public good,and without nullifying or
substantially derogating from the intent of the district or the purpose of the ordinance.
O For all Special Permit requests a Statement of Grounds must be attached. An application for a special permit for
a nonconforming use or structure shall include a statement demonstrating how the proposed change shall not be
substantially more detrimental than the existing nonconforming use to the neighborhood in accordance with Art.V,
§5-3. Such a statement should include reference to the following criteria:
a) Social,economic,or community needs served by the proposal;
b) Traffic flow and safety,including parking and loading; -
c) Adequacy of utilities and other public services;
d) Impacts on the natural environment,including drainage;
e) Neighborhood character;and
f) Potential fiscal impact,including impact on City tax base and employment.
Previous applications to the Board of Appeals involving this property have been submitted with this petition
form. The Building Commissioner can provide documentation ofprevious applications to the petitioner or his
representative.
If different from petitioner:
Petitioner: Bing Realty Trust Property Owner: Same" -
Address: 43 Mason St., Salem, MA Address:
Telephone•(781) 2 8-7895 Telephone:
ignature Signature(Attached consent letter is also acceptable)
November 1, 2012
Date Date
If different from petitioner:
A TRUE Representative: John R. Keilty, Esq.
ATTEST Address: 40 Lowell St., Peabody, MA
Telephone:(978) 531-7900
Signature
November 1, 2012
Date
DATE SUBMITTED TO
BOARD OF APPEALS:
CITY CLERK
This original application must be filed with the City Clerk.
Joseph&Silvana White � j
37 Mason Street Q n
Salem,MApj
April 2,2013 � ApUNO p `CJP,C
Rebecca Curran cA,
Chair
Salem Board of Appeals
120 Washington Street
Salem,MA 01970
Dear Ms.Curran: -
I've tried to contact City Hall several times;however it has proved to be unsuccessful.Please be advised this is not the first time we
have not heard back from City Hall.This brings me to the issue at hand.
On March 19,2003 the Zoning Board of Appeals issued a variance for the property located at 41 Mason Street. This Variance
restricted hours of operation of the businesses on the premises from 7:OOa.m.To 6:OOpm. I have enclosed the meeting minutes for
your review. The hours of operation run beyond said hours,this ongoing issue was brought to the attention of City Hall on many
occasions.
With that being said,I was forced to hire a private attorney back on July 2012,to file a Cease and Desist order on the property. As
a taxpaying citizen I do not feel that it should be my obligation to enforce a Variance that was clearly documented by the City of
Salem. Nothing was being done to enforce said restrictions,until my attorney was involved. We then attended two separate
hearings where a decision was made that the hours needed to remain 7:OOam-6:OOpm.To this date the Variance is still not being
adhered to.One building remains open 24hrs and the other building until 9:OOpm.
Both these facilities are disruptive to the neighborhood not to mention potentially dangerous where the Behavioral center is
concerned,having small children this concerns me greatly. I will not even let my children in the backyard since the Behavioral
center is directly behind my home.
I now owe a private attorney over$1,700.00 for something that the City of Salem should have enforced,I am asking that this bill be
paid by the City of Salem,seeing as how this is something the City should have corrected a long time ago,had my calls been
returned or my concerns heard. In addition I have attached the schedule for Dance Enthusiasm,and the fees I incurred from my
attorney.
icerely,
Silvana White
LAW OFFICES
ATTORNEY MARK L. NESTOR
Putnam Place Business Center 45 Middle Street,Suite 1
180 Boulder Drive,Suite 150 P.O. Box 5357
Fitchburg,MA 01420 Gloucester, MA 01930
(978) 345-3544 (978) 283-7117
Facsimile (978) 345-8034 Facsimile (978) 283-5118
Email:nestorlaw(a)aoLcom
Direct all correspondence to the Gloucester Office
SILVANA WHITE
37 MASON STREET
SALEM, MA 01970
ITEMIZED BILL
LEGAL SERVICES RENDERED IN REGARDS TO CITY OF SALEM
7/16/12 - REVIEW DOCUMENTS . 5HRS
7/19/12 - LETTER TO CITY SOLICITOR . 4HRS
7/23/12 - REVIEW AND RESPOND TO EMAIL . 3HRS
7/27/12 - LTR & DOCS TO BLDG INSPECTOR . 4HRS
8/03/12 - LTR & DOCS TO CLIENT . 3HRS
8/22/12 - LTR TO BUILDING INSPECTOR . 3HRS
8/29/12 - LTR & DOCUMENTS TO CLIENT . 3HRS
9/18/12 - LTR & DOCUMENTS TO CLIENT . 3HRS
11/2/12 - LTR AND DOCUMENTS TO CLIENT . 3HRS
11/7/12 - ZBA HEARING 2 . OHRS
11/9/12 - LTR & DOCS TO CITY INSPECTOR . 3HRS
12/19/12- ZBA HEARING 1. 5HRS
TOTAL HRS 6. 9HRS
6. 9HRS @$250/HR tTOTAL;S1';_72_ 5:00
TOTAL DUE $1, 725. 00
LESS RETAINER 7 . 30 . 12 $ 250 . 00
LESS PAYMENT 12 . 17 . 12 $ 200 . 00
BALANCE DUE $1, 275 . 00
JANUARY 2, 2013
Kathleen Zolla
P0Box 5
Boxford, MA 01921
978-887-8567
December 17, 2012
Rebecca Curran, Chair
City of Salem Zoning Board of Appeals
120 Washington Street
Salem, MA 01970
Dear Ms Curran:
I am writing in support of Bing Realty Trust's petition 'seeking to amend a previously issued
Variance decision in order to change the allowed hours of operation of the dance studio located in the
building at 41 Mason Street(NRCC)'.
The very nature of a dance studio is such that the hours of operation begin in the mid-afternoon
on weekdays and run into the evening hours in order to serve various age groups, a large number of
students and the numerous styles of dance students wish to learn.
Dance, in the structured environment of dance instruction in the studio, as in organized sports,
provides the children and teens of Salem and surrounding communities a safe place to gather and to
learn in a supervised, social setting. It is not unusual for any child or teen to be involved in numerous
after school activities. Because of this it is often necessary for businesses, regardless of the activity, to
offer instruction and activities during extended evening hours.
It seems a shame that the co-directors of this studio will have to consider closing their doors or
relocating the studio should their hours be curtailed.
As the parent of two daughters who have attended classes at Dance Enthusiasm for a number of
years, I would ask that the Zoning Board of Appeals think about the disruption to dance students during
this current dance year as well as the financial ramifications to the dance studio.
Please consider an amendment to the previously issued Variance of March 2003 allowing for
extended hours of operation of the dance studio at 41 Mason Street.
Sincerely,
Kathleen Zolla
I `19V �,�� J"(5-
QTY
l�IhS
CITY OF SALEM, SAC HUSETTS
f b�� BUILDING DEPARTMENT
120 WASHINGTON STREET,3 FLOOR
'I;rL. (978) 745-9595
FAX(978) 740-9846
KIMBERLEY DRISGOLL
MAYOR THOMAS STTIERRE
DIRECTOR OF PUBLIC PROPERTY/BUILDING COMMISSIONER
August 1, 2012
Art. Stephen Haley-Trustee
43 Mason Street
Salem Ma. 01970
R.E Zoning Decision-41 Mason Street
Dear Mr.Haley,This Department has received complaints and has been copied the zoning decision for 41
Mason Street heard back on March 19,2003.In this petition,relief was granted to construct an addition to the
rear of 41 Mason Street. Several Standard conditions were recorded as well as conditions#8,#9,#10 and#11.
Condition#11 stated that the hours of operation shall be between 7:00 A.M. and 6:00 P.M. This condition is the
subject of the complaint. Specifically the dance studio and the H.E.S group.. Therefore you are directed to
cease and desist operations between the hours of 6:00 P.M and 7:00 A.M.
If you feel you are aggrieved by my interpretation this order,younappeal is to the Salem Zoning Board of
Appeals.
Si erely
Thomas St.Pierre
cc. Att Robin Stein, Att. Mark Nestor