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13 NICHOLS STREET - ZBA 13 NICHOLS STREET (R-1 ) ZOEL LABRIE 9� V j l� �� ��� �� ��-� �� /_030 �= 9� .� — i s"3 .�. fel/�G.��°'�r'����Y"__ �� ��� /�� �� `�� o ;yoi (City of Salem, 4assuchuseits 9 3l3uttra of Au peal N:,a 3 I12 i; 35 DECISION ON THE PETITION OF ZOEL LABRIE_FOR VARIANCE ! ii ^" -1 "X FOR THE PROPERTY LOCATED AT '13- NICHOLS STREET (R-1) A hearing on this petition was held February 15, 1995 and was continued to March 15, 1995 and continued again to April 19, 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 13 Nichols Street, was requesting a Variance from minimum lot width & rear setback & Variance from minimum lot area. 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 district. b. Literal enforcement of the provisions of the Zoning Ordinance substantial hardshi financial or otherwise would involve subst p, , 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, makes the following findings of facts: 1. Petitioner purchased the property at 13 Nichols Street in 1975. At that time petitioner owned and resided at a residence on an abutting property at 2 Albion Street, which he subsequently sold. 2. Petitioner stated that an existing single family house on the property at 13 Nichols Street was demolished, at his request, in or about 1979. Following this demolition, the only remaining structure on the property was a two car garage, which is still standing. 3. Petitioner sought variances in lot size requirement, lot width and rear setback requirement in order to build a one family house with a single car garage on the property at 13 Nichols Street. 4. Speaking or writing in favor of the granting of the Variance were the following neighbors: Robert Morin, 2 Albion Street, Gayle and Roy Shelton, 19 Nichols Street, Donna Taylor, 2 Albion Str. , Deanna Launsley, 14 Nichols Street, .lean Poirier, 19 Nichols St. DECISION ON THE PETITION OF ZOEL LABRIE FOR A VARIANCE FOR THE PROPERTY LOCATED AT 13 NICHOLS STREET (R-1 ) page two 4 . Also in favor were Tanya and Leo Jaibert of 1 Butler%r@et.�l Z5 5. Speaking or writing in opposition to the granting of e Variance � were the following neighbors: Elizabeth Fallon, of ,Albibn;,ISt ,`;� a Arnold, Blanchette, Nichols Street and Marquerite Pelabtxer: In addition, a petition was submitted with the signatures of 19 other neighbors who opposed the granting of the Variance. 6. Attorney William DiMento who represented Elizabeth Fallon of 6 Albion Street also was opposed to the granting of the Variance. 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. 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 Board of Appeal voted unanimously, 0-5 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 April 19, 1995 ,-7'Z&4t Nina Cohen, 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 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 (situ of 341em, massar4usetto office of flit (fffg (found( nlne COUNCILLORS-AT-LARGE SARAH M. HAYES WARD COUNCILLORS PRESIDENT DEBORAH E. BURKINSHAW 1995 1995 CITY CLERK GEORGE A.AHMED WILLIAM RUSSELL BURNS,JR. KEVIN R.HARVEY GEORGE P.McCABE JOHNJ.DONAHUE JANE STIRGWOLT LEONARD F O'LEARY STANLEY J.USOVICZ,JR. DAVID B.GAUDREAULT SARAH M.HAYES MARK E.BLAiR April 14, 1995 Mr. Stephen Touchette, Chairman Board of Appeal City of Salem Salem, Ma. Dear Mr. Touchette: On the petition from Zoel Labrie, of Waterbro, Me. regarding the property at 13 Nichols Street, Salem, , I would like to state that I am in opposition to the variances requested. I would like to attend the meeting however, I will be out of town on that date. I have talked to the neighborhood and there are many in opposition to this project. Please take this under advisement as I have always been with the neighborhood and I would like to see their concerns addressed. Very �1y y urs� R,N C LEONARD F. O LEARY COUNCILLOR WARD FOUR PETITION to SALEM ZONING BOARD OF APPEALS We, the undersigned residents of the Albion Street and Nichols Street oppose the granting of any Variance on 13 Nichols Street, Salem, MA. NAME ADDRESS PRECINCT 1 , 3a� lti 14 4 9Z fv ' c1 0/ s',4 5 a. ? lei g 10 , ire P a2� h /cljs 5T - --- 11 12 Lv 13 ( , is 33 /ki_ b , � N 16 ) /�v 41'1 bl( n 1j'j If — 17 18 19 3 -2 20 j 21 I 22 —I- 23 I_- 24 25 26 27 28 29 -- March 21 , 1995 We the undersigned are hereby in favor of the petition regarding the variance at 13 Nichols Street, Salem for Zoel Labrie to build a single family home on this lot. NA ADDRESS PHONE - -�----------- -------- _ Ad/------------- ------- -!`--- - - - -- --61-9J i on--ST---------- 7 -------------------------- --------------------------- -------- -------------------------- --------------------------- -------- -------------------------- -------------------------- ----- -------------- --------------------------- ---------------------------- ---------------------------- - -- --- -------------------------- --------------------------- -------- -------------------------- -------------------------- -------- ---------------------------- ---------------------------- -------- -------------------------- --------------------------- -------- ---- -------------------- --------------------------- -------- -------------------------- --------------------------- -------- -------------------------- --------------------------- -------- -------------------------- --------------------------- -------- -------------------------- ---------------------------- -------- ------------ -------------- ----------- ---------------- -------- -------------------------- --------------------------- -------- �ONDIT,t� a n CITY OF SALEM • MASSACHUSETTS ROBERT A. LEDOUX Legal Department LEONARD F.FEMINO City solicitor 93 Washington Street Assistant city sonchor 508-7453963 Salem, Massachusetts 01970 5MRZ1990 March 6, 1995 Thomas C. Demakis, Esquire Demakis Law Offices, P.C. 56 Central Avenue Lynn, Massachusetts 01901 RE: 13 Nichols Street Salem, Massachusetts Dear Mr. Demakis: Please be advised that I am the City Solicitor for the City of Salem. I am in receipt of your letter dated February 23, 1995, to Leo Tremblay in connection with the above- captioned. I do not agree with the conclusion that you have reached that there is no merger between the two lots in question. I am, however, willing to review any case law that you may have that would indicate that there has not been a merger of these lots. For your information, I wish to advise you that there was an amendment of the Zoning By-Law in the City of Salem in 1977 that may affect these parcels. If you would be kind enough to forward the information requested, I would be happy to review the same and issue an opinion. Thank you for your consideration. Very truly yours, ROBERT A. LEDOUX RAL/lcm (Tit of �ttlem, Attssttr4uset#s public Pra}tertg department Sudbing Department (One t3akm Q$reen 508-745-9595 Ext. 300 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer February 16, 1995 Robert LeDoux City of Salem Solicitor Salem, Mass. 01970 RE: 13 Nichols Street Dear Bob: Kindly review the enclosed documents and please forward a decision on whether you think the lot on 13 Nichols Street is a merger or a legal grandfathered lot. I have considered this lot as being a merger, therefore not a qualified grandfathered piece of property. Mr. Labrie's Council, Attorney Demakis disagrees with me for reasons being that both lots have had structures located on the premises since purchased by Mr. Labrie. I would also like to know, if a legal grandfathered lot is build upon if it must meet all of the required set backs of todays density regulations. I was always under the impression they did. Thank you in advance for your cooperation in this matter. I will need this information before the next Board of Appeals meeting on March 15, 1995. Sincerely, Leo E. Tremblay Zoning Enforcement Of icer LET: scm 6��ONB1Lt,r� yY F f] b ��yMlrys�� CITY OF SALEM - MASSACHUSETTS ROBERT A. LEDOUX Legal Department LEONARD F.FEMINO City solicitor 93 Washington Street Assistant city solicitor 508-745,3363 Salem, Massachusetts 01970 508ma9M March 6, 1995 Thomas C. Demakis, Esquire Demakis Law Offices, P.C. 56 Central Avenue Lynn, Massachusetts 01901 RE: 13 Nichols Street Salem, Massachusetts Dear Mr. Demakis: Please be advised that I am the City Solicitor for the City of Salem. I am in receipt of your letter dated February 23, 1995, to Leo Tremblay in connection with the above- captioned. I do not agree with the conclusion that you have reached that there is no merger between the two lots in question. I am, however, willing to review any case law that you may have that would indicate that there has not been a merger of these lots. For your information, I wish to advise you that there was an amendment of the Zoning By-Law in the City of Salem in 1977 that may affect these parcels. If you would be kind enough to forward the information requested, I would be happy to review the same and issue an opinion. Thank you for your consideration. Very truly yours, U'A ROBERT A. LEDOUX RAL/lcm DEMAKIS LAW OFFICES, P. C. GREGORY C. DEMAKIS 56 CENTRAL AVENUE THOMAS C. DEMAKIS LYNN, MASSACHUSETTS 01901 CHARLES DEMAKIS TEL. (617) 595-3311 Of Counsel FAX (617) 592-4990 February 23 , 1995 Mr. Leo Tremblay Zoning Enforcement Officer One Salem Green Salem, MA 01970 RE: 13 Nichols Street (Parcel 15-0242) Dear Mr. Tremblay: As you know I represent Mr. and Mrs . Zoel LaBrie regarding their attempt to obtain a building permit for premises located at 13 Nichols Street, Salem. I would like to follow up on our discussions of last Wednesday, February 15, 1995, and on the comments which I made at the Board of Appeals hearing later that evening. I believe that Mr. and Mrs . LaBrie may build a single family house on the land at 13 Nichols Street and that they may do so as a matter of right with no need for any variances whatsoever. Section 8-2 (1) of the Salem Zoning Ordinance provides : 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 (5, 000) square feet of area and fifty (50) feet of frontage. The provisions of this section shall not be construed to prohibit a lot being built upon if, at the time of the building, building upon such lot is not prohibited by the Salem Zoning Ordinance . The lot at 13 Nichols Street meets these requirements . The lot existed prior to the adoption of the Zoning Ordinance in 1965 . It has more than 5, 000 square feet of area (5, 025) and more than 50 feet of lc:\tcd\feb23 Mr. Leo Tremblay February 23 , 1995 Page 2 frontage (90) . while, as you have pointed out, it was held in common ownership by the LaBries from 1975 to 1987 with a lot which they owned at 2 Albion Street, there was and is no merger of those lots because both of them were improved with buildings and used for separate purposes during the entire period of common ownership and, indeed, at all times from before the enactment of the Zoning Ordinance until the present . Two Albion Street has been used for residential purposes since before 1965, and a single-family residence was constructed at 13 Nichols Street prior to the adoption of the Zoning Ordinance . That house remained there until 1975 when the LaBries tore it down. However they kept the garage which has been used for business purposes ever since . Since there is no merger, and since all of the requirements of Section 8-2 (1) have been satisfied, the LaBries are free to build a single family house on the land at 13 Nichols Street and the dimensional requirements of the Zoning Ordinance, including those for "area, frontage, width, yard or depth" do not apply. Therefore they require no variances . As you know the Board of Appeals has continued the hearing on the LaBries' petition for three variances until March 15, 1995 . The purpose of the continuance was for you to determine whether or not you will issue a permit for the LaBries to build a single-family house at 13 Nichols Street . Kindly let me know your decision at your earliest convenience . If I can provide you with any further information please do not hesitate to contact me . Thank you for your continuing courtesy and cooperation in this matter. Very truly yours, ryl- Thomas C. Demakis TCD/pmb cc : Mr. & Mrs . Zoel LaBrie 1c:\tcd\feb23 tzl hU2 C�LX ,Jr J f i P SET S3 zil - - - ET dmL RF-mo vao- ui i I GRR fiG �� �? ✓ 6 . i , A, P-,,EA � .!� 0 ;23'sFittLij - -VP _ in i A AF ., 4. t3 141cNOl.s SSU ------ �r r - j � I - 614