4 PLEASANT STREET - ZBA 4 PLEASANT STREET (R-2)
BARBARA ERNY
COPIES TO CITY SOLICITOR & BOOF
APPEALS - 2/5/96
RICHARD L. VITALI
Attorney at Law
60 ANDREW STREET FEB 5 2 55 y `Gly
LYNN, MASSACHUSETTS 01901
(617) 599-6480 C11
Fax (617) 599-7955 C l I m,15 S Q' S I C f
February 5, 1996
BY HAND
City Clerk
Salem City Hall
Washington Street
Salem, MA 01970
Re: Barbara Erny vs. Stephen C. Touchette, Gary Barrett,
Nina Cohen, Albert Hill, Arthur LeBrecque and
Joseph Ywuc, as they are Members of the
Salem Board of Appeals
Salem District Court # 96 36 CV 5/ 0'
Dear Clerk:
Enclosed please find a copy of a -complaint filed in Salem
District Court this day. This notice is presented to you in
accordance with M.G.L. Chapter 40, Section 17 .
Thank you.
Very truly yours,
R' L. itali
RLV/bd
encl.
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SALEM DISTRICT COURT
C.A.NO. QG 36cu 0/68
*******************************
BARBARA ERNY
Plaintiff
* .n
VS.
* Tw
* COMPLAINT cT`
STEPHEN C. TOUCHETTE, * -
GARY BARRETT, NINA COHEN, * p N
ALBERT HILL, ARTHUR LEBRECQUE, * vu1
AND JOSEPH YWUC, AS THEY
ARE MEMBERS OF THE SALEM * ,b
BOARD OF APPEALS,
Defendants
*******************************
1. Plaintiff, Barbara Erny, is an individual who owns the
premises situated at 4 Pleasant Street, Salem, Massachusetts.
2. Defendant, Stephen C. Touchette, is a member of the Salem
Board of Appeals, and he resides at 45 Gallows Hill Road,
Salem, Massachusetts.
3 . Defendant, Gary Barrett, is a member of the Salem Board of
Appeals, and he resides at 7 Patton Road, Salem,
Massachusetts.
4 . Defendant, Nina Cohen, is a member of the Salem Board of
Appeals, and he resides at 22 Chestnut Street, Salem,
Massachusetts.
5. Defendant, Albert Hill, is a member of the Salem Board of
Appeals, and he resides at 4 Larkin Lane, Salem,
Massachusetts.
6. Defendant, Arthur LeBrecque, is an associate member of the
Salem Board of Appeals, and he resides at 11 Hazel Street,
Salem, Massachusetts.
7. Defendant, Joseph Ywuc„ is a member of the Salem Board of
Appeals, and he . resides at 86 Ord Street, Salem,
Massachusetts.
8 . Plaintiff, Barbara Erny, on or about November 30, 1995
forwarded an application dated November 30, 1995 to the Salem
Board of Appeals for filing to allow a variance to legalize an
existing . living arrangement whereby four unrelated persons
inhabit a condominium owned by the Plaintiff, and located at
4 Pleasant Street, Salem, MA.
9 . On January 17, 1996 the members of the Salem Board of Appeals
voted 4-1 to deny a variance for the Plaintiff.
10. The decision of the Salem Board of Appeals denying said
variance was filed in the office of the Salem City Clerk on
January 25, 1996. A certified copy of said decision is
attached hereto as "Exhibit All .
11. Plaintiff is a person aggrieved by said decision of the Salem
Board of Appeals because said decision violates her rights as
a property owner, restricts and limits the use of her property
and causes her undue financial and other hardships.
Furthermore the decision does not reflect that an existing
living arrangement was already in place and said arrangement
was not subject to complaints from the City of Salem itself.
12. Said decision of the Salem Board of Appeals is based upon
legally untenable grounds, is whimsical, capricious or
arbitrary, has insubstantial basis in fact and is an abuse of
discretion by said Board.
13 . Said decision of the Salem Board of Appeals fails to give a
requisite statement of reasons or make findings of fact to
support the denial of Plaintiff's petition but rather makes a
general recitation of statutory language.
14 . Plaintiff was denied the ability to determine what criteria
was used in the denial of her request for a variance by the
failure of the Defendants and members of the Salem Board of
Appeals to file rules relative to the issuance of variances as
required by Chapter 40A. Section 12 , Massachusetts General
Laws.
I
15. The Defendants as members of the Salem Board of Appeals
wrongfully applied provisions of the Salem Zone Ordinance and
failed to make proper findings including the consideration of
the existing circumstances, and they wrongly denied the
Plaintiff use of the premises.
16. The ordinance and grounds relied upon by the Defendants as
members of the Salem Board of Appeals are legally untenable,
contrary to law and violative of the rights due to the
Plaintiff.
WHEREFORE, the Plaintiff prays that the Court, pursuant to
G.L. c. 40 A. Sec. 17 and the Courts general equity power:
1. Enter an order annulling said decision of the Salem Board of
Appeals.
2. Order a variance to issue . to . allow the existing living
arrangement whereby four unrelated persons inhabit a
condominium unit at 4 .Pleasant Street, Salem, MA.
3 . Grant such other and further relief as the Court may deem
proper and just.
BARBARA ERNY
BY HRA ' ORN Y,
Richard L. Vitali, Esq.
60 Andrew Street
Lynn, MA 01901
Tel: (617) 599-6480
RLV\ERNY.COM BBO#: 510375
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EXHIBIT A
of ttlem, ttssttcljusetts JAN 23 IU 31
,o s �Ruxrb of �kppeal V11 , r; s
DECISION ON THE PETITION OF BARBARA A. ERNY REQUESTING A
VARIANCE FOR THE PROPERTY LOCATED AT 4 PLEASANT STREET (R-2)
A hearing on this petition was held January 17, 1996 with the
following Board Members present: Stephen T.ouchette, Chairman; Gary
Barrett, Nina Cohen, Associate Member Arthur LaBrecque and Joseph
Ywuc. 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 4 Pleasant Street
request a Variance to allow four (4) unrelated people to occupy the
dwelling.
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
would involve substantial hardship,financial or otherwise, 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 requested a variance to legalize an existing living
arrangement whereby four unrelated persons inhabit a condominium
unit owned by petitioner and located at 4 Pleasant Street.
2. In,. opposition to petitioner's request, the owner of the adjoining
condominium, Pamela Scmidt, stated that the unrelated tenants in
the Erny unit at 4 Pleasant Street had caused several nuisance
conditions on the property over the last 3 or 4 years,
specifically: failing to take out their garbage, failing to
clean up bottles in the yard, failing to clean rain gutters and
storm drains, failing to park in allotted spaces, failing to deal
with vermin infestation, causing excessive noise and occasional
rowdy and messy parties.
3. Ms. Scdmidt further stated that the identity of the tenants
changed frequently so that she could not always tell which
persons on the property were tenants and which were visitors.
4. Additional comments to the effect that the tenancy's poor
management of the property was detrimental to the neighborhood
were entered in the record by Julie Arcari, an abutter, Regina
DECISION OF THE PETITION OF BARBARA A. ERNY REQUESTING A
VARIANCE FOR THE PROPERTY LOCATED AT 4 PLEASANT STREET (R-2)
page two
Flynn, a neighbor and Ward Councillor, and Kevin Harvey former
Ward Councillor.
5. Petitioner stated that she had attempted to deal with the
nuisance conditions by changing to a different property manager
and had evicted tenants who had caused nuisance conditions in .the
past years.
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 4-1 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
January 17, 1996
Nina Cohen f11Ni�
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 rec¢Pd" ^,
or is recorded and noted on the owner's Certificate of Title. �n
Board of Appeal o
AJflUE
ATTEST
N
CITY CLERK
SALEM, MASS.
0"M itv of 'Bour3 of rein C'
DECISION ON THE PETITION OF 'ARBARA A. ERNY REQUESTING A
VARIANCE FOR THE PROPERTY LOCATED AT 4 PLEASANT STREET (R-2)
A hearing on this petition was held January 17, 1996 with the
following Board Members present: Stephen Touchette, Chairman; Gary
Barrett, Nina Cohen, Associate Member Arthur LaBrecque and Joseph
Ywuc. 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 4 Pleasant Street
request a Variance to allow four (4) unrelated people to occupy the
dwelling.
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
would involve substantial hardship,financial or otherwise, 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 requested a variance to legalize an existing living
arrangement whereby four unrelated persons inhabit a condominium
unit owned by petitioner and located at u. Pleasant Street.
2. In opposition to petitioner's request, the owner of the adjoining
condominium, Pamela Scmidt, stated that the unrelated tenants in
the Erny unit at 4 Pleasant Street had caused several nuisance
conditions on the property over the last 3 or 4 years,
specifically: failing to take out their garbage, failing to
clean up bottles in the yard, failing to clean rain gutters and
storm drains, failing to park in allotted spaces, failing to deal
with vermin infestation, causing excessive noise and occasional
rowdy and messy parties.
3. Ms. Scdmidt further stated that the identity of the tenants
changed frequently so that she could not always tell which
persons on the property were tenants and which were visitors.
4. Additional comments to the effect that the tenancy's poor
management of the property was detrimental to the neighborhood
were entered in the record by Julie Arcari, an abutter, Regina
S10^; = THE 'PETITION OF =. RBARA . . =RNY -EQUESTlNG --
VARIANCE TOR THE PROPERTY T ^GATED AT 4 PTE=SANT STREET (R-21
page two
Flynn, a neighbor and i>ari Cnunciilor, and Kevin Harvey former
Ward Councillor.
Petitioner stated that she had attempted to deal with the
nuisance conditions by changing to a different property manager
and had evicted tenants .ho had caused nuisance conditions in the
past years.
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 4-1 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
January 17, 1996
/N'i'na Cohen
Board of Appeal
A COPY OF THIS DECISION HAS 37-EN 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 LOA,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 nom c_
appeal has been filed, or that, if such appeal has been fiied, t-had2
is has been dismissed or denied is recorded in the South Essex- N
Registry of Deeds and indexed under the name of the owner of record"r,
or is recorded and noted on the owner's Certificate of Title. "
Board of Appeal
�z
DATE OF HEARING II?
PETITIONER
LOCATION
MOTION: TO GRANT / SECOND AMENDMENT SECOND
TO DENY !%T SECOND
TO RE-HEAR SECOND
WITHDRAW SECOND
CONTINUE SECOND
ROLL CALL PRESENT GRANT DENY AMEND WITHDRAW RE-HEAR CONTINUE
GARY M. BARRETT
ALBERT C. HILL
STEPHEN TOUCHETTE
NINA V. COHEN t
ASSOCIATE MEMBERS /
ARTHUR LEBRECQUE v
JOSEPH J.YWUC
CONDITIONS:
L Q/t
\zbaform\
January 17, 1996
CITY OF SALEM
BOARD OF APPEAL
One Salem Green
Salem,MA 01970
To The Salem Board of Appeal:
In regards to the petition submitted by Barbara Emy requesting a Variance to allow four(4)unrelated
people to occupy the dwelling located at 4 Pleasant Street, Salem,MA,I wish to go on record as being
OPPOSED to her request.
I am a direct abutter to 4 Pleasant Street and have witnessed a continuing decline in the maintenance of 4
Pleasant Street in the 5 to 6 years that Ms.Emy has rented this property. The City Ordinance specifically
states that no more than two(2)unrelated people may occupy any dwelling,yet Ms. Emy has continued to
rent her property to a succession of large groups. At this point in time 4 Pleasant Street appears to be
operated as a rooming house with a`revolving door" of tenants moving in and out at all times.
This is a family neighborhood of one and two family homes. The parking situation caused by the
numerous cars owned by the present tenants of 4 Pleasant Street makes parking and snow plowing an
intolerable burden for myself and other residents of Pleasant Street. In addition,as Ms. Emy is an
absentee landlord with no property manager in charge of 4 Pleasant Street,there are numerous health and
safety code violations at this property. To name a few:
1) Snow removal from the sidewalks
2) Trash put out for the collectors in a timely manner
3) Proper maintenance of weekly trash in covered containers
4) Raking and disposing of leaves and other yard debris resulting in 2 foot flood waters from Bridge
Street to 10 Pleasant Street every time it rains heavily because the storm drains in front of her
property are not cleared. The Salem DPW can attest to this situation.
5) College"Beer Bashes"lasting until 3:00 AM with fighting, smashed beer bottles on my property,
vomit,urinating in public,parking on sidewalks and general harassment of the neighborhood in
general.
All of the above and more are a constant reminder to me and my family that the building next door is not
being used as a two unit condominium as intended but rather as a college flop house. The property at 4
Pleasant Street is what Mayor Harrington would target in the Neighborhood Task Force. This property is
fast becoming a blight on my neighborhood.
In the capacity of absentee landlord,Ms. Emy has continually violated the two person cohabitation
ordinance resulting in numerous health and safety code violations at 4 Pleasant Street. A Variance to
allow four persons to occupy this property would undoubtedly result in more infractions of city codes and
contribute to an even greater blight upon my neighborhood than presently exists.
9�
I strongly oppose the granting of any variance to Ms. Erny. I also urge Mayor Harrington's Neighborhood
Task Force and other City Departments to investigate the numerous violations to the public's health and
safety at 4 Pleasant Street.
Sinc y,
VImefIIich,'h`m
8 Pleasant Street
Salem,MA 01970
cc: Mayor Harrington
Neighborhood Task Force
APPEAL CASE NO. . . . . . . . . . . . . .
: �IIIIta � �I>�P2Il
TO THE BOARD OF APPEAL:
The Gndersignedrepresent that he/she is/are the owners of a certain parcel of land
located at: . . . .7//''. „I . ,, , , , , , , ,,,Street; Zoning District. . . ;A,
ects«
and said parcel is affected by Section(s). . .. . . . .. . ..... . ...... of the Massachusetts
State Building Code.
Plans describing the work proposed have been submitted to the Inspector of Buildings
in accordance with Section IX A.1 of the Zoning Ordinance.
c� o
ern,
�- Un
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CL
Lab Z
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Ch o a w � �"•
The Applicaik6n for Permit was denied by the Inspector of Buildings for the following
reason{s): =o
U � Y
The Undersigned hereby petitions the Board of Appeal to vary the terms of therSalem
Zoning Ordinance and/or the Building Code and order the Inspector of Buildings to
approve the application fee permit to build as filed, as the enforcement of. said
Zomig By-lava and Building Code would involve practical difficulty or unnecessary
hardship to the Undersigned and relief may be granted without substantially darogatiug
from the intent and purpose of the Zoning Ordinance and Building Code for- th&E-follow--
lllg reasons: .��--pn.A.v.. WI'v'e.H,tLk TCAtit';.�,. &, C�L rvovx. ��C�9'��GQ�;,
&,J-tI et
vin.eYVL. a"L.(-0-^^-vcc�. 3 !1C.A-.... 0; %Z
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k4t4 ,E • Yl- Qom. 0_,C Ccuv,4,a-j., 4j
04 0,tt aU-,._ co,,C- 4-Lto- FAQ
Owner.� lrJ2
Addresa. :.:v �rnuD � .•.
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Telephone..�:s1�d.�J
Petitioner.-S tea��[� •••...
Address....................................
TElephone.....................
Bjr........«..................» .....�
Three copies-of tha:application_.mvst be&.filed witb=:the=Secretary- of-:the Bo.rd-of _
with=a_rh�fo= tastbscaMW j- veeksa tottha=
meeting--of=tbs=Board.�of=APPe�:-C�payabl`Cto'sthe-SalecL+veniag-_Aewa. , "''^ ''�”`
NO. . . . . . . . . . . . . . . . . . . �r n
111:'1'1'1'ION TO 110ARD OF APPEALS
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Address . . . . . . . . . . . . . . . . . . . . . . . . . .
CONDITIONS
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I'P,'CLT]:ON APPROVED. . . . . . . . . . . . .
DENIED. . . . . . . . . . . . .
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