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41 MASON STREET - ZBA (4) 0 41 MASON STREET STEPHEN HALEY } y� 1� ( cy� _ � l 1 Legal No"ice CITY OF SALEM BOARD OF APPEAL y 978-745-9595,EM.381 will hold a public hearing for all per- sons interested in the petition submit- ted by STEPHEN HALEY requesting a 'Variance from side and rear setbacks, parking, and density requirements to construct an addition for the property located at 41 MASON STREET R-2. ' Said hearing will be held on WEDNES- DAY, MARCH 19,2003 at 6:30 p.m., 1 120 WASHINGTON STREET, 3rd FLOOR,ROOM 313. Nina Cohen,Chairman (3/5,12) BOARD OF APPEAL CII Y 0 LEM. MA CLERK'S OFFICE 120 WASHINGTON STREET; 3RD FLOOR - ,NNp�°,'' � ilt^'j SALEM, MA 01970 J.p�,� E���'�'/ TEL. (978) 745-9595 E FAX (978) 740-9846 STANLEY J. USOVICZ, JR. ..2003 MAR 2l A10 41 MAYOR 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 C'\r� 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 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION NO. 2013-00094-D STEPHEN W. HALEY, as trustee' Plaintiff, VS. REBECCA CURRAN & others,' Defendants. MEMORANDUM OF DECISION AND ORDER ON THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT Plaintiff requests judicial review of Defendants' actions pursuant to G. L. c. 40A, § 17. Specifically, Plaintiff challenges the denial of a petition to amend a zoning variance and the issuance of cease and desist orders regarding the operation of a dance studio at 41 Mason Street, Salem, Massachusetts. This matter is currently before the court on the parties' Cross-Motions for Summary Judgment. A hearing on the motions was held on October 30, 2014. For the reasons set forth below, Plaintiff's motion is ALLOWED,and Defendants' motion is DENIED. 'Of the Bing Realty Trust 'Jamie Metsch, Annie Harris, Michael Duffy, Bonnie Belair, Jimmy Tsitsinos, and Richard Dionne, as Members of the Zoning Board of Appeals of the City of Salem, and Thomas St. Pierre, as Building Commissioner of the City of Salem BACKGROUND 1. The Parties' Plaintiff, as trustee of the Bing Realty Trust, owns the building located at 41 Mason Street, Salem, Massachusetts ("property"). Defendants include the members of the Zoning Board of Appeals for Salem ("Zoning Board"), as well as Salem's Building Commissioner ("Commissioner"), all sued in their official capacities. II. The Proyerty In 2003, Plaintiff operated an auto parts business on the property. At that time, the area was zoned Industrial. Plaintiff petitioned the Zoning Board for a variance that would allow him to expand the property. In March 2003, the Zoning Board granted Plaintiff his requested variance ("2003 Variance"), but included certain conditions. Thus, while the 2003 Variance permitted commercial and light industrial use of the property, it also explicitly required that the property adhere to all applicable regulations and stated that any"[h]ours of operation shall be between 7:00 a.m. and 6:00 p.m." In September 2005, the Commissioner authorized,by building permit, the use of the property as a dance studio. The dance studio opened soon after the permit was issued. The parties agree that the use of the property as a dance studio at no time has violated any zoning ordinance or other applicable regulation. Indeed, the Defendants admit that"both the structure, with its variance, and the dance studio is compliant," and"[t]he fact is that the use of the 'The facts set forth in Sections I-IV appear to be uncontested from the documents, affidavits, Rule 9A(b)(5) Statement, and memoranda submitted by the parties. 2 business is not an issue, only its hours of operation." Defendants' Opposition at 7-8. However, since it opened in 2005, the dance studio has been operating until 9:00 p.m. III. The Cease and Desist Order and Request to Amend the 2003 Variance In August 2012, the Commissioner issued a cease and desist order("C&D order") to Plaintiff at the request of several community members. Residential neighbors living near the property noted that while other commercial enterprises in the area closed at 6:00 p.m., the dance studio remained open until 9:00 p.m. The neighbors alleged significant disturbances as a result of the dance studio's later business hours, including increased traffic, decreased parking availability, and noise. In November 2012, Plaintiff approached the Zoning Board with a petition to amend the 2003 Variance to extend to 9:00 p.m. the property's permitted hours of operation. A public hearing was held in December 2012, during which both proponents and opponents of the amendment voiced their support and complaints, respectively. On January 2, 2013, the Zoning Board issued a decision("2013 Decision") denying Plaintiff's petition for an amendment to the 2003 Variance. IV. Procedural Background On January 18, 2013, Plaintiff filed a complaint("Plaintiff's Appeal") with the Superior Court seeking judicial review of the 2013 Decision. In April 2013, while Plaintiff's Appeal was pending,the Commissioner issued another C&D order to Plaintiff regarding the property's hours of operation. The parties have since filed Cross-Motions for Summary Judgment. 3 DISCUSSION In support of its motion for summary judgment, Plaintiff argues that the 2013 Decision is unsupported by facts, arbitrary, irrational, and unlawfully discriminatory. Plaintiff also asserts that, regardless of the 2013 Decision, Defendants' actions are barred by the statute of limitations under G. L. c. 40A, § 7. Defendants maintain that both the 2013 Decision and the C&D orders are proper. Defendants also argue that Plaintiff has failed to exhaust his administrative remedies, and, thus, he has waived his right to seek judicial-review: The court is persuaded that Plaintiff is entitled to summary judgment in this matter because, as a matter of law, Defendants' actions are barred by the statute of limitations set forth in G. L. c. 40A, § 7. I. Standard of Review Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The nonmoving party cannot defeat the well-pleaded motion for summary judgment by resting on its pleadings; rather, it must respond by alleging specific facts demonstrating the existence of a genuine issue for trial. Correllas v. Viveiros, 410 Mass. 314, 317 (1991). As Defendants point out, summary judgment generally allows for prompt disposition of all or part of a controversy where no salient disputes of fact exist among the parties. See Jaxtimer v. Planning Bd. of Nantucket, 38 Mass. App. Ct. 23, 25 (1995). 4 H. Statute of Limitations Under G. L. c 40A, § 7 The court agrees with Plaintiff that Defendants' actions are barred by a six-year statute of limitations pursuant to G. L. c. 40A, § 7. The law provides, in pertinent part, "[I]f real property has been . . . used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action [to limit] the use allowed by said permit . . . shall be maintained, unless such action [is brought] within six years next after the commencement of the alleged violation of law." G. L. c. 40A, § 7 (2014 ed.). Here, there is no dispute that the Zoning Board was authorized to issue the 2003 Variance. Likewise, Defendants admit that the use of the property for a dance studio is not, nor ever has been, a violation of the core use allowed by the 2003 Variance and applicable ordinances. Defendants only seek to limit that use to the hours of'operation outlined in the 2003 Variance: 7:00 a.m. to 6:00 p.m. Defendants did not challenge the dance studio's operation until the first C&D order was issued in August 2012, nearly seven years after the alleged violation commenced in September 2005. After careful review of the statute and relevant case law,this court finds that G. L. c. 40A, § 7 protects Plaintiff from Defendants' actions. Defendants argue that G. L. c. 40A, § 7 does not apply to the case at bar because the Commissioner"never issued a permit allowing the dance studio to operate after 6:00 p.m." Defendant's Opposition at 8. While it is true that no permit of such specificity was ever issued, Massachusetts courts have not interpreted G. L. c. 40A, § 7 to apply so narrowly. The Supreme Judicial Court has stated that Section 7 "is not limited only to a new and distinct use to which a new building would be put . . . . The use may be a new one or it may be the same as the use to which an existing structure on the land is being put." Cape Resort Hotels, Inc. v. Alcoholic 5 Licensing Bd. of Falmouth, 385 Mass. 205, 218 (1982). The Cane Resort Court then went on to acknowledge that the lower court in that case"correctly interpreted the words `original building permit' as meaning the first permit issued with respect to a particular improvement of real property." Id. Here, the relevant"original building permit"was the 2003 Variance that the Zoning Board issued to Plaintiff over ten years ago. The use of the property as a dance studio has not violated the actual use authorized in the 2003 Variance; rather, it has exceeded the condition limiting the operating hours for that use. Thus, it is clear that the statute of limitations set forth in G. L. c. 40A, § 7 applies to the original use as a dance studio for hours past 6:00 p.m. Defendants, as well as any perturbed neighbors in the area, had ample time to challenge the dance studio's extended business hours between 2005 and 2012. Instead, on this record, the very first opposition brought against Plaintiff was the Commissioner's first 2012 C&D order, after the dance studio had been operating until 9:00 p.m. for nearly seven years. The fault of Defendants to act within six years of the commencement of that use is fatal, as the statute of limitations expired in 2011. Defendants further argue that the Appeals Court decision in Lord controls this case. The court disagrees, as the reasoning in Lord turns on whether or not the specific use challenged was in violation of local zoning laws. Lord v. Zoning Bd. of Appeals of Somerset, 30 Mass. App. Ct. 226, 227-228 (1991). Because the Court found that the plaintiff's use of his property as a two- family residence, where the area had been zoned for single-family residences only, was always already an improper use, it determined that G. L. c. 40A, § 7 did not protect such a use. Id. at 228. 6 Here, in contrast, all parties agree that the property's use as a dance studio has never violated any zoning ordinance or other applicable law. Thus, rather than seeking relief from a violative use, as was the case in Lord, Defendants insist on limiting the legal use of the dance studio after it has been operating until 9:00 p.m. for over seven years. Moreover, in Lord, unlike the instant case, City officials were unaware of the use of the property as a two-family residential in clear violation of the zoning ordinance until the issuance of the C&D order. Here,there are no facts in the record tending to show that Defendants did not have notice of the dance studio's extended hours until August 2012. Rather, Defendants not only knew of the compliant use of the property as a dance studio, but also were aware of its extended hours of operation, since September 2005. Therefore, because their first action in opposition was taken outside the six year statute of limitations period outlined in G. L. c. 40A, § 7, Defendants' challenges are barred as a matter of law. The court declines to examine the parties' other arguments, as its ruling regarding the statute of limitations issue is dispositive.' 'The court notes its consideration of Defendants' argument that Plaintiff has not fully exhausted his administrative remedies. However,though Plaintiff did not appeal the August 2012 C&D order, Plaintiff did petition the Zoning Board for an amendment to the 2003 Variance soon after. When that petition was denied, Plaintiff then proceeded with action for judicial review. Regardless of whether this sufficiently exhausted Plaintiffs administrative remedies, the court holds that the statute of limitations under G. L. c. 40A, § 7 had expired by the time the Commissioner acted in 2012. Therefore, that issue is dispositive. See Saint Luke's Hospital v. Labor Relations Comm'n, 320 Mass. 467, 470-471 (1946) (holding that where all material facts submitted indicate that the applicable commission lacked jurisdiction to entertain the proceedings at issue, a citizen is no longer compelled to participate in such administrative procedures). 7 ORDER For the reasons set forth above, it is hereby ORDERED that Plaintiff's Motion for Summary Judgment be ALLOWED, and Defendants' Cross-Motion for Summary Judgment be DENIED. SO ORDERED. Hon. Thomas Drechsler Justice of the Superior Court Dated: November!7 42014 8 - -- ---- - -- -- ---- - _ __ - -- ® O LL CD C MASON L 0{ Q N w to (PUBLIC ti 40 F- WIDE) 00 DHSB STREET U= J CO Q (FD Q 2 .8 77' PP IN RR SPK LL - _- ,.(S T) LLJ bLli � rn I 7,323 SO, FT. ' i j 207,19' � cr - EXISTING BUILDING AREA i j1 � C/) co BE REMOVED - (3) FLOOR LEVELS Er ! 5t N DHSBUJ w !� I r o ~ (FD) I w - - i Z X41 w 0 LUrn 1,292 SO. FT. i LO ! PROPOSED D m NEW FLOOR AREA j ;'I.ROD (2) FLOOR LEVELS ARTHUR PARENT BRICK BUILDING j (SET) ALBIN A.NDRUS - -- - I JOSEPH WHITE __-________- I 1 02'. DH (PLAN 214 of 1971 ) (SET) (PLAN 214 OF 1971 ) IN CONC. - - - - - C iUNIT 1 ff) CLF f,: XISTING POSTtD49% �Tc STQRY 2o.a' (FD) w �� SWH REALTY, LLC — - �o ss14 I N '-' BPIC BUILDING DH (SET) (PLAN IN DEED BOOK 2423, PAGE 382) 3471 _ i ON TOP OF � i '� - �- CONC. RET. WALL ' ss 103.86' t t DHSB DHSB © t7 i8 19 © ® (FD) (FD) PARKING SPACES ( YPICAL) _ 1 O BLDG. COR. z ON UNE — — — — — — 1 DHSB W 27.0' (FD) ExistingProposed Increase/Decrease from existing DH 3.8,2' DOWN 0.8' LOT AREA Tota l First Floor Buikim Area 12 181 SF 13,360 SF Increase 1179 SF O SET) EPIC EASLEY Total Building Area 20,277 SF 17,220 SF Decrease<3057 SF> I ( Total proposed storage area NA 4,000 SF ON TOP OF 29,976-x- S.F . (PLAN BOOK 12, PLAN 21 ) Required Provided Zoning relief requested CONC. RET. WALL O- t 1 '4 Lot Area 40,000 SF 29,976 SF none - re-existin (f) i tka Minimum Lot Width 150' 62' none- pre-existing ° 44.60% none- asses L Lot Coverage 45/o O LjJ I - - - - "' 'N Front Yard 304510none- passes — Lv UNIT 2 \�NIT $ ® vi Side Yard 30' 1'-2' and 2'-0" set back variance � I 69.0' Q Rear Yard 30' 2'-0" set back variance 2'-0" SETBACK0 ~ t- Parkin Analysis R uired Provided Zonin relief requested (/) N STOR -- — - - - 1 space per compan vehicle 6 6 � OFFICE 10 2 13 1 s ace/2 employees 13 9 Q = O OFFICE O OFFICEZ U #43-#45 — - - - I - - - - - - PRC '0SET 1spacell000SFexcld'n storage 12 8 i Q ;, n 1 STORY Y Total Required 31 25 per Ian parking variance for 6 spa ces (� 0/ ^ Vl 2 STORY I BRICK L DING G note because total building area is being V / Q BLOCK BUILDING I EXISTING - Oreduced by 9,057 square feet,pa kig Z " � IT 5 UNIT 6 1 STORY UNIT TOILET - nonconfo mance is also being educed Q LET Q BLDG. COR BRICK BUILDINGTOILET UN J z — a 2,974 SO. FT. + ::Dr- _j -j T- — NEW FLOOR AREA - CONC. j (1) FLOOR LEVEL '- r WALK m (A � � o 178.19' 'O STAKiE� o —• (SET) SITE PLAN BASED ON WORK REVISIONS: DH STAKE IRON ROD 2500 (SET) \ �O . , BY HANCOCK SURVEY ASSOC. INC., IN CONIC, WA (SET) (SET) 6.84 OWNER UNKNOWN! 235 NEWBURY ST., DANVERS, MA. 1 1 /2 STORY CO NC. BLOCK BUILDING DANIEL WIGGIN SCALE: 1/16"=1 '-0" PLAN 247 OF 1957 DANIEL WIGGIN 0 10 20 40 BO PROJECT PLAN 247 OF 1957 NUMBER:DANIEL WIGGIN DATE: 2. 18.03 . _. . SCALE: 1 /16"=1 '-0,. (PLAN 538 OF 1957) DRAWN: CHECK: i DRAWING NUMBER: Al Existing Elevator Roof , O L 07 Ex�isting�New Ro f � o O t �. - _ - - - Q co U r7 w Uj w °° Q U) < n OOr W 6 - --_ - _1 eCO IF t - - - - -- — �J Lt'-;� i__ _ I I LU r n ii' fz OD C)- J Clue_ ❑' w Er z CC FDMI122222� irst Floor = e New Gcs 61etei,5 Brick Building Addition Beyond �� Existing Brick building Beyond Existing Building BeyondBuilding Addition NORTH (FRONT) ELEVATION 1/8•-11'-0• ExistinqNew Rogf - I - —��r- iIli, r f 0 —__--- - -� Second Floor L-AL-1 In 7814 LJLJ First Floor E Brick Building Addition Existing Brick Building Beyond Existing Brick Building Beyond ---- ---Brick Building Addition Beyond EAST (SIDE A) ELEVATION L t/8•=r-0• O -- Z w ry 8S Exi tin New Roof Z W Ev LLJ p l— / p � tn Second Floor '� ' / i;' �� ' V) > LJi i� ❑ ❑❑ �-' - _ - - = - w LLJ _ _ - w V) - _ - 'EllJ First Floor - - o SOUTH (REAR) ELEVATION rL Building At Adjacent Property Existing Brick Building Brick Building Addition REVISIONS: Roof - ------------ PROJECT NUMBER: -- DATE: 2. 18.03 Second Floor __—_— SCALE - — DRAWN: _ r CHECK: NOTE: DRAWING NUMBER: ALL PARTS OF TT#S BUIDINO 1811 BE FULLY SPRNKERED ACCORDNC _ _TO CODE. Building At Adjacent ' Ez Property —Fir Floor nFore round Brick Building Addition Existing Brick Building (a WEST (SIDE B) ELEVATION