14-16 PEARL STREET - ZBA del-lb �e e�,i �-�/�� —
i
,.
0
I
a
a
C5
Legsl Notice
CITY OF SALEM c
BOARD OF APPEAL i
745-9595 Ext.381 I
Will hold a public hearing for all
persons interested in the petition sub- t
" mitted by ANDREW GOLDMAN is ?'
seeking to appeal the issuance of a Vic,
5, building permit for the property located sut
at 14-16 PEARL STREET R-2. Said the
hearing to be held WEDNESDAY, Ph
OCTOBER 20,2004 AT 6:30 P.M,120
WASHINGTON STREET, 38D be
to
t,x FLOOR,ROOM 313.
Nina Cohen 1 1'
Chairman F
(10/6,13) r
CITY OF SALEM, MASSACHUSETTS CITY OF e
aQ BOARD OF APPEAL CLERX
A. J f jCE
,,A
120 WASHINGTON STREET, 3RD FLOOR
!� SALEM, MA 01970
TEL. (978) 745-9595
FAX (978) 740.9846 1004 NOV - I P
STANLEY J. USOVICZ, JR. 2 Sa
MAYOR
DECISION ON THE PETITION OF ANDREW GOLDMAN REQUESTING AN
ADMINISTRATIVE RULING FOR THE PROPERTY LOCATED AT 14-16 PEARL
STREET R-2
A hearing on this petition was held on October 20, 2004 with the following Board
Members present: Nina Cohen Chairman, Richard Dionne, Bonnie Belair ,, Edward
Moriarty and Steven Pinto Notice of the hearing was sent to abutters and others and
notices of the hearing were published in the Salem Evening News in accordance with
Massachusetts General Laws Chapter 40A.
Petitioner is requesting and Administrative Appeal seeking to appeal the issuance of a
building permit for the property located at 14-16 Pearl Street R-2.
The Board of Appeal, after careful consideration of the evidence and after reviewing the
plans at the hearing, makes the following findings of fact:
1. Petitioner is Andrew Goldman, a neighbor and abutter of the parcel of land
located at 14-16 Pearl Street in an R-2 zone.
2. Mr. Goldman is aggrieved by the issuance of a building permit issued by the
Building Commissioner, Mr. Thomas St. Pierre, for the construction of a two
family dwelling, at said locus.
3. Said building permit was issued on March 14, 2004 and is attached hereto Exhibit
1.
4. Said appeal of the issuance of said permit was timely filed with the Salem Zoning
Board of Appeals, on or about August 12, 2004, by Mr. Goldman, with other
neighbors listed as neighbors, and/or abutters, and/or parties in interest.
5. Mr. Goldman presented a lengthy, detailed and documented presentation
requesting, by way of Appeal, that the building permit issued by the Building
Commissioner be reversed.
6. Mr. Goldman. identified the controlling provision of the Salem Zoning Ordinance
governing the issuance of said, permit, as Article V, Section 5-2, Subsection (b),
wherein the following are permitted uses in said tow-family residential district:
Subparagraph 2; "Two-family dwellings, detached or attached".
7. According to Mr. Goldman and several other neighbors and abutters in
opposition to the issuance of said building permit, the only issue before the
Building Commissioner, and therefore, before the Board of Appeals, was whether
or not the proposed two-family dwelling, as constructed, was consistent with the
intent and purpose of the Zoning Ordinance to allow for two-family dwellings to
be constructed in R-2 zoning districts.
J
Cff Y OF SAIMA
CLERK'S 9 tf
DECISION OF THE PETITION OF ANDREW GOLDMAN REQUESTING ANa NOV —I P 2 59
ADMINISTRATIVE RULING FOR THE PROPERTY LOCATED AT 14-16
PEARL STREET R-2
page two
S. Mr. Goldman and others argued that the two houses, on the ground currently, with
two separate foundations, connected by the deck required by the Building
Commissioner, was not the equivalent of the two-family unit provided for, as of
right, in the Salem Zoning Ordinance, Article V, Use Regulations,relative to R-2
Districts.
9. Mr. Goldman suggested by way of colorful metaphor, that two separate structures
with two separate foundations was no more a two-family house than a pair of
pair of shoes connected by a shoelace was one shoe.
10. Mr. Goldman, and several other neighbors speaking in opposition to the issuance
of the building permit and in favor or revocation of the Permit by action of the
Board, noted that at all times their zoning/use concerns had been made known to
and were noted by the developers. Therefore, the developers were certainly on
notice that they were building "at risk" in the summer and fall of 2004, and that
he direct abutters and neighbors intended to pursue their legal rights at the Board
of Appeals, if not thereafter, to overturn the issuance of said building permit
by the Building Commissioner, Thomas St. Pierre.
11. In particular, Andrew Goldman, and Mr. and Mrs. Paul &Gloria Ward, testified
that they were directly impacted by these structures, which they perceived as not
in non-compliance with Salem Use Regulations for R-2 Districts.
12. According to Mr. Goldman,Mr. &Mrs. Ward, and others, the developers in
question took down trees, broke water mains, obstructed abutters' views and
damaged abutting neighbors' retaining walls in pursuit of this so-called two
family dwelling unit (s).
13. Mr. Goldman also suggested that to uphold the issuance of the building permit by
the Building Commissioner in this instance, would violate the intent and purpose
of the R-2 Salem Zoning District, which is to control density.
14. According to Mr. Goldman, density would not be controlled, but in fact, would
go unchecked in this and in similar circumstances in other R-2 lots, if
developments such as this were proceed, as of right, and unchecked, leaking to the
possibility of increased development on undersized lots, with the further
possibility of subsequent variances allowing further alterations to the use of said
premises of smaller apartments or smaller condominium units.
15. The developers/owners of the premises are Mr. Robert Hamel and Mr. Keith
Nadeau of Salem. They were represented by Attorney William Quinn of
222 Essex Street in Salem Massachusetts.
16. Attorney Quinn urged the Board of Appeals to uphold it Building Commissioner
and the issuance of said building permit, under the facts, circumstances and
relevant Zoning Ordinance Provisions in question.
CITY OF
CLERK'-. .
DECISION OF THE PETITION OF ANDREW GOLDMAN REQUESTING AN 1004 NOV - P ;
ADMINISTRATIVE RULING FOR THE PROPERTY LOCATED AT 14-16
PEARL STREET R-2
page three
17. According to Attorney Quinn, no Zoning Ordinance is perfect. Certainly the
Salem Zoning Ordinance is an example of imperfection as it relates to all
matters zoning, including Use Regulations.
18. Attorney Quinn acknowledged that the appeal of the building permit by Mr.
Goldman, et al, was timely, and that W. Goldman had standing to challenge the
issuance of the building permit in question, and that this clients did build at their
own risk, under the circumstances.
19. Attorney Quinn further represented that his clients were going to complete
construction, sell the project as condominiums with a common driveway, with
a common deck, with a foundation and a roof, meeting all of the requirements of
the Salem Zoning Ordinance in general, and in particular, Article V, Section 5-2,
Subsection (b), indicating that the following uses, as of right, in two-family
Residential districts, include two-family dwellings detached or attached.
CONCLUDSIONS OF LAW
20. The two-family buildings in question are attached by the deck,roof and
foundation,required by the building permit, and if not attached, are certainly,
"detached or attached", within the meaning of the Ordinance.
21. The developers' project should be allowed to proceed to completion.
22. Attorney Quinn, in his presentation, emphasized that no relief from any of the
Articles of the Salem Zoning Ordinance in terms of use or dimension, were
required. No special permit was required under the Salem Zoning Ordinance. No
site plan review was required, given the limited scope of the project.
23. The only permit required related to the Conservation Commission Certificate of
Conditions, which was complied with and which approval was obtained from the
Conservation Commission.
24. Any problems with the project's construction were the responsibility of the
developers' general contractor, and/or subcontractors, and the problems relating
to water pressure, water pipes, and/or retaining wall damage were timely cured,
according to Attorney Quinn, at contractor's sole cost and responsibility.
25. Attorney Quinn pointed out that upon completion, the premises will be sold as
two (2) condominiums, with a common driveway, and a common deck; a form of
conveyance consistent with two-family dwellings, detached or attached.
26. The revocation of the permit at this time would clearly create economic hardship
on the developers, and would also cast an unnecessary shadow of doubt on the
professionalism and credibility of the Building Commissioner.
27. City Councilor Sosnowski spoke in favor of overturning the Building
Commissioner's issuance of a permit, noting that this project was consistent with
the bill of goods that this neighborhood had been sold in conjunction with the
Bridge Street Bypass Road, and should not stand. Said circumstances, if true and
accurate, are unfortunate, but not grounds to reverse the permit in issue herein.
CPT.Y OF SALEH..MA
CLERK'S @priEE
"04 NOV - I P 2; 59
DMAN REQUESTING A
DECISION OF THE PETITION OF ANDREW GOLN
ADMINISTRATIVE RULING FOR THE PROPERTY LOCATED AT 14-16
PEARL STREET R-2
page four
28. Building Commissioner Thomas St. Pierre defended succinctly, accurately and
lawfully his issuance of the building permit, noting that, pursuant to Salem
Use Regulation Article V, Subsection 5-2 (b), the premises in question were
buildable, as of right, as a two-family dwelling, detached or attached.
29. Mr. St. Pierre indicated that he thought long and hard about the issuance of the
permit, met will all interested parties, including developers, abutters and
neighbors, and the Planning Department, and issued the permit carefully,
reluctantly, but with legal certainty that the developers had a right to construct
a two-family home exactly in the manner requested, and in the only manner
permitted by the building plans and the building permit in issue, involving a two
family dwelling with an attached deck, including a roof and a foundation for
said deck.
30. Zoning Board of Appeals Chairperson and Attorney, Nina Cohen, stated that the
photographs of the site development showed that the owners designed and built
two single family homes on two separate foundations, with separate entrances,
separate dwelling spaces, separate heating and electric systems. The abutters'
testimony that the modular houses as built contained no common structural
features (such as a common wall, floor or roof) was believable and germane to
the issue of whether the structures that were built conformed to the Ordinance
definition of"two-family dwellings, attached or detached'. The developers'
representation that these two properties,joined by a covered deck that would be
built at a later time to connect the homes, would be marketed as a condominium
did not, in her opinion, allow the project to be deemed as a"two-family home,
attached or detached" for zoning purposes. Where the Building Commissioner
erred in interpreting the terms of the Ordinance, the Board of Appeals may vote
to overturn the issuance of the building permit.
31. Zoning Board of Appeals Member and Attorney Bonnie Belair, referenced the
terms of the Zoning Ordinance allowing two-family dwellings as of right in R-2
Districts, whether detached or attached, and spoke of the grave concern that any
action of the Board in reversing the issuance of the building permit would have on
the developers who had proceeded in good faith with due diligence to construction
of the property in question, pursuant to the building permit and the Zoning
Ordinance, as interpreted lawfully and in good faith by the Building
Commissioner.
32. Zoning Board of Appeals Member, Edward Moriarty,Jr. also spoke in favor of
Upholding the issuance of the building permit and in rejecting the Petitioner's
Request to reverse same. Mr. Moriarty suggested that, although the Board of
Appeals had the authority to overturn the issuance of a building permit, said
CITY OF $A1 F�t�,�A
CLERN`5 `@F 1C
DECISION OF THE PETITION OF ANDREW GOLDMAN REQUESTING A44 NOY - I p 2. 59
ADMINSTfRATIVE RULING FOR THE PROPERTY LOCATED AT 14-16
PEARL STREET R-2
page five
authority should be exercised most sparingly and judiciously, and only in
circumstances where the Building Commissioner's actions were arbitrary and
capricious, beyond the scope of his authority, clearly contrary to law, and/or
where there was credible evidence the Commissioner acted dishonestly,
rendered an opinion under undue influence,or otherwise acted in bad faith.
33. In these circumstances, given the relevant provisions of the Ordinance, the
Board finds that the Building Commissioner acted neither arbitrarily nor
capriciously, nor beyond the scope of his authority in lawfully issuing the
building permit in question.
34. The Zoning Board of Appeals further specifically finds, as a matter of law,
that the Building Commissioner's interpretation of Article V, Section 5-2,
Subsection (b), does lawfully permit the issuance of a building permit for a
two-family dwelling, detached or attached, is otherwise not contrary to law,
and that said permit was issued by the Commissioner honestly, after due
deliberation, in good faith, pursuant to the Zoning Ordinance terms and
conditions.
Therefore, base on the fact and on evidence presented, the Board make a motion to
uphold Building Commissioners' Thomas St. Pierre issuing of a building permit for
the premises at 14-16 Pearl Street with a vote of 1 in favor and 4 to deny the
petitioners appeal.
ADMINISTRATIVE RULING
DENIED
October 20, 2004
I
ard Moriarty, Membe#�
Board of Appeal
CITY OF �q ,�
GLEI* .
14. NOY 7 1. P 2. 5q
A COPYOF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD
AND THE CITY CLERK
Appeal from this decision, if any, shall be made pursuant to Section 17 of the
Massachusetts General Laws, Chapter 40A, and shall be filed within 20 days after the
date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts
General Laws Chapter 40A, Section 11. The Variance or Special Permit granted herein
shall not take effect unit a copy of the decision bearing the Certificate of the City Clerk
that 20 days have elapsed an no appeal has been filed, or that, if such appeal has been
filed, that it has been dismissed or denied is recorded in the South Essex Registry of
Deeds and indexed under the name of the owner of record or is recorded and noted on the
owner's Certificate of Title.
14-16 PEARL STREET, SALEM MA—APPEAL OF BUILDING PERMIT
1. Fall 2003 developers present plans to building dept for two separate homes on the 14-16 Pearl St
lot. This is rejected since two separate structures on a single lot is not permissible.
2. Developers return with same blueprint, only now a deck has been added to "connect' the units.
This is rejected. Building inspector requests that the deck be "covered" in order to meet
regulations.
3. Developers return with drawings indicating that a cover for the deck has been added. This is
sometime in late 2003.
4. Sometime after getting indication that the plans will be approved, the developers make
arrangements to purchase TWO Colby Cape modular homes from Keiser Corp..
5. Neighbors write to Tom St. Pierre requesting clarification of this ruling in Feb 2004
6. Permit for this design is issued on March 16a',2004.
7. Appeal on this building permit, which was not even made public to the neighbors until March
22"a filed on April 21`x, making clear to the city and the developers our concerns over this plan.
The appeal is eventually rejected on technicality (past the 30 day filing period), even though we
received no notification that a permit had been issued.
8. June 2004, a second request made to Salem building dept to revoke the permit,but denied.
9. July 2004, appeal re-filed with the city with apparent acceptance eminent.
10. Late July 2004. Meeting with developers to express concerns directly about the plans. Their
compromise was to keep the same design, but move 14 Pearl St(unit 1)3 ft further from 12 Pearl
St (the Ward House) in exchange for dropping this appeal. This offer is denied and it is made
clear to the developers we intend to let the Zoning Board decide whether the designs meet the
regulations or violate them.
11. Late July 2004. The developers, knowing the appeal is active and will be heard at a later date,
decide to "Build at Risk".
12. August 2004. The basic units for two Colby Cape homes arrive.
13. Late August/early September 2004, two individual foundations are built on the lot. These are
separated from each other by 12 ft. Nothing connects them.
14. September 2004. Supporting structures are added and the modules are assembled onto the
foundations creating two separate homes.
15. October 1 2004 to today October 20, 2004, construction continues and no efforts are made to
"connect"the homes to each other.
1;2NON-COMPLIANCE ISSUES,�w � �i���� ' m�„� , �� '� tt, 3� �
Zoning Ordinance Pearl Street Development
Definition, p.4—Building, attached: The constructed "portions" are not separated by a "division
wall" per definition, but by an open space with a "covered
deck"
"A building having one (1)portion Definition implies traditional party wall. True 2-family homes
completely separated from another are divided by a wall (side-by-side units) or a floor(top/bottom
portion by a division wall without units) that is an integral part of the structure.
openings. '
The proposed deck is not a integral part of the structure. If the
deck were removed, the houses would still be individual units.
On a true 2-family home, removing the dividing wall or floor
results in a single unit.
Also, there is no shared foundation with these units. They stand
fully alone — designed this way from day one, and only "tied
together" once original plans were rejected. Making the deck
for unit 1 touch unit 2 was only done for the purpose of trying
to meet regulations.
The proposed deck is not a division wall `without openings". It
is actually shared completely by both units. It is a common
space.
The proposed deck is not even fully covered. It covers only
29% of the total deck space, running 4 ft off the back wall of
Unit 1. It is an awning, not a roof.
Definition, p.4—Building, detached: Constructed are two principal dwellings connected by a
partially covered deck. This is at variance with the provision of
"no direct attachment" and the usual principal/accessory
"A building, usually an accessory relationship.
building, having no direct attachment to
the principal building on the lot."
Definition, p.5—Dwelling,2-family: The constructed homes do not meet definitions of "detached"
or"attached"buildings (see above.) in the context of a 2-family
home. The constructed design is two separate principal
buildings connected by covered deck.
These units each actually match the definition of a single-
family home (page 5) -- "a detached building designed for or
occupied by one family".
Permitted uses in R-2 District,p.11: The constructed homes do not meet definition of "building,
"Two-family dwellings, detached or attached" (see above).
attached." The constructed homes do not meet definition of "building,
detached" (see above).
The two structures are single-family homes sharing a deck.
Sec 6-1 (page 23)Residential Uses The developers have constructed TWO principal dwellings on a
....No more than one (1) dwelling shall be single lot.
built upon any such lot. Even if divided into R-1 sub-lots, the space is not sufficient in size
to handle two principal structures. Total space is only 16,900 sq
ft, and there is only 100 ft of road frontage, currently being shared.
Density Regulations: Table 1, p.24 The constructed individual dwellings are only 12 ft apart.
(and Sec 4-1-2, page 10): Minimum
distance between buildings on lot =30 Unit 1 is only 15 ft from the neighboring home Ward home.
feet
The simple reason is that the developers are violating the intent of the zoning regulations.
The broader reasons are important to the quality of life in our neighborhood and to all future development
in Salem. It is as much about controlling density as anything else. The zoning regulations were designed
to keep our already dense and congested neighborhoods from becoming more so.
If you allow these developers to bend the zoning regulations for R-2 properties so extremely, it will set a
precedent for all development in Salem. It will allow developers to put full-size single-family homes on
lots half the size truly zoned for them—7,500 sq ft vs. 15,000 sq ft. This completely violates the intent of
the law.
If these single family homes are allowed, the potential for them to each to become an individual 2-family
home at a later date will exist and be plausible. This could increase density two-fold, with each unit
having 1-2 cars. We have been assured by the current administration that this will not happen, but that is
not very assuring. Administrations turn over, and variances are issued on a regular basis. Very
meaningful promises do fade over time. There is nothing to assure us that 3-5-10 years down the line, the
current owner might ask to convert their unit to two apartments or condos. The current designs are large
enough already to have studio/one/two bedroom apartments. Add in the possibility of physical expansion
and they definitely will have the potential.
If a traditional 2-family home were constructed on this lot, the threat of these issues would be removed.
r
` _ r
r�'�st.¢F� ., i,,_ �.r��e, '�� q Cr' tom, dd���\ 3'"C`�� efyi✓ t ��t�` a:�
4. ✓� j �\ � �-j \`� � �r�� ` 41 T c(Y i� r�Y�t"�.�� y+� t� _� �1, 4i.
c.: c '`-+ t ..
3. View from Pearl Street - Two Foundations with Framing Added
Tom. fin �a'm A wh: :mNM^ '«YiC 'Y"�q . ^•"r b `M' mss.
iia .
4. View from the Ward House (12 Pearl) Showing
Two Individual Foundations and Framing
���lop]
5. View Facing the Ward House - Showing Two Individual
Foundations and Modules Being Added
4 ♦♦rr s
IIIR® 11IOtt ,�l�� �-
"nn"Tr } Y
5w.
6. View from the Ward
House (12 Pearl) Showing
Two separate Homes x
7. View from Lower Pearl Street — Showing Two Principal Dwellings
Unattached to Each Other (Front of 16 Pearl & Side of 14 Pearl)
TT
..P
1 }}�Li"t5�4 v'' • y4
1
r,r
- T
8. View from River Side — Showing Two Principal Dwellings Unattached
to Each Other (Front of 16 Pearl & Side of 14 Pearl)
OF
4 40
.40
vo
err
9. View from Behind 14 Pearl Street/Side of 16 Pearl Street — Showing
Two Principal Dwellings Unattached to Each Other
Tom
ToMIR�TP119�
5
>
�.
Y V ',
4:3�'t
t
t +.
10. View from the Ward House — Showing Back of 14 Pearl
and Side of 16 Pearl Unattached
�J
" V?
.g'
"1