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16 SAUNDERS STREET - ZBA (3) IG Sa��-ts �--, � � � ', ,� ., _._ —.,-.- �. ..�o i .' n ., H .. . INSPECTIONAL SERVICES John H. Carr,Jr., Esq. 10011 AUG I I P3: 0-1 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 August 11, 2009 By Hand Thomas St. Pierre, Building Inspector City of Salem 120 Washington Street, 3rd Floor Salem, MA 01970 RE: Thomas J. McKinnon et al vs. Leslie Byrne et al Dear Mr. St. Pierre: I am herewith enclosing courtesy copies of the following relative to the above-entitled action which I filed in the Essex Superior Court today: 1. Complaint Pursuant To Chapter 40A, Section 17 Appealing July 28, 2009 Decision of the Salem Board of Appeals Granting A Special Permit And Variances At 16 Saunders Street, Salem, Massachusetts; 2. Notice To Salem City Clerk Of Complaint Pursuant To Chapter 40A, Section 17 Appealing July 28, 2009 Decision of the Salem Board of Appeals Granting Special Permit And Variances At 16 Saunders Street, Salem, Massachusetts. Would you or someone from your office kindly acknowledge receipt of the foregoing by date-stamping the enclosed copies of this cover letter, said Complaint, and said Notice. Thank you. e ours,/ John H. C Jr. Enc. Cc Jerald A. Parisella, Esq.—By Hand Scott M. Grover, Esq.—By Hand Mr. &Mrs. Thomas K. McKinnon, Jr.—By Hand Ms. Melanie M. McKinnon—By Hand I COMMONWEALTH OF MASSACHUSETTS --- ESSEX, SS. SUPERIOR CO AVESUR �s c fSL CIVIL AMW ul THOMAS J. MCKINNON,JR., and ELIZABETH J. ) 1009 AUG I 1 P 3 01 MCKINNON, and MELANIE M. MCKINNON, ) PLAINTIFFS ) V. ) LESLIE BYRNE, and BONNIE BELAIR, REBECCA ) CURRAN, BETH DEBSKI, RICHARD DIONNE,ANNIE ) HARRIS, ROBIN STEIN and JIMMY TSITSINOS, BEING) REGULAR and ALTERNATE MEMBERS OF THE ) ZONING BOARD OF APPEALS OF THE CITY OF ) SALEM, MASSACHUSETTS, ) DEFENDANTS ) NOTICE TO SALEM CITY CLERK OF COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17 APPEALING JULY 28,2009 DECISION OF THE SALEM BOARD OF APPEALS GRANTING A SPECIAL PERMIT AND VARIANCES AT 16-SAUNDERS STREET,SALEM,MASSACHUSETTS I, John H. Carr, Jr., attorney for the Plaintiffs in the above-entitled action, hereby give notice to the City Clerk of the City of Salem,Massachusetts that said Plaintiffs have filed a civil Complaint Pursuant To Chapter 40A, Section 17 Appealing July 28, 2009 Decision of the Salem Board of Appeals Granting A Special Permit And Variances At 16 Saunders Street, Salem, Massachusetts with the Essex Superior Court appealing the July 28,2009 Decision of the Salem Zoning Board of Appeals granting a Special Permit and Variances to Leslie Byrne, owner of 16 Saunders Street, Salem,Massachusetts 01970, which property is located in an R-2 zoning district. Said July 28, 2009 Decision was filed with the office of the Salem City Clerk on July 28, 2009. A copy of said Complaint filed as Essex Superior Court Civil Action No. 7-00 9 ' 1 SYS L on August 11,2009 is attached hereto. Respectfully submitted, Thomas J. McKinnon,Jr., Elizabeth J. McKinnon, By their attorney, August 11, 2009 John H. Carr, Jr., Esq. 9 North Street Salem, MA 01970 978-825-0060 BBO#075281 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO: 700? SySC THOMAS J. MCKINNON, JR., ELIZABETH J. ) MCKINNON, and MELANIE M. MCKINNON, ) PLAINTIFFS ) V. ) z ti N m LESLIE BYRNE, and BONNIE BELAIR, REBECCA ) C CURRAN, BETH DEBSKI, RICHARD DIONNE,ANNIE ) �, �rn HARRIS, ROBIN STEIN and JIMMY TSITSINOS, BEING) REGULAR and ALTERNATE MEMBERS OF THE ) �' r-< ZONING BOARD OF APPEALS OF THE CITY OF ) U mo SALEM, MASSACHUSETTS, ) 4y DEFENDANTS ) o m COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17 APPEALING JULY 28,2009 DECISION OF THE SALEM BOARD OF APPEALS GRANTING A SPECIAL PERMIT AND VARIANCES AT 16 SAUNDERS STREET,SALEM,MASSACHUSETTS This is an appeal from a Decision of the Salem, Massachusetts Zoning Board of Appeals, dated July 28, 2009, and filed with the Salem City Clerk on July 28,2009, granting Leslie Byrne a Special Permit to increase the size of a legally non-conforming structure, and Variances from front and side setback requirements to allow for the addition of a second story and attic and expansion of the footprint of the house on the property she owns located at 16 Saunders Street, Salem, Massachusetts,which property is located in an R-2 zoning district,on the grounds that said ZBA Decision was/is arbitrary,capricious, unreasonable, violated due process, exceeded the Board's authority, was based on legally and factually untenable grounds, and was wrong as a matter of law. A certified copy of said July 28, 2009 Decision is attached hereto as Exhibit A. PARTIES Plaintiffs 1: Plaintiff,Thomas J. McKinnon,Jr., owns(with his wife, Elizabeth J. McKinnon, and his daughter, Melanie M. McKinnon) and resides at 14 Saunders Street, Salem, Massachusetts 01970, which property is located within the 300 foot notice requirement of the Salem Zoning Ordinance,and directly abuts 16 Saunders Street, Salem, Massachusetts 01970 to the east of said property. 2. Plaintiff,Elizabeth J. McKinnon, owns(with her husband, Thomas J. McKinnon, Jr., and her daughter, Melanie M. McKinnon) and resides at 14 Saunders Street, Salem, Massachusetts 01970, which property is located within the 300 foot notice requirement of the Salem Zoning Ordinance, and directly abuts 16 Saunders Street, Salem, Massachusetts 01970 to the east of said property. 3. Plaintiff, Melanie M. McKinnon, owns(with her parents,Thomas J. McKinnon,Jr. and Elizabeth J. McKinnon)and resides at 14 Saunders Street, Salem, Massachusetts 01970, which property is located within the 300 foot notice requirement of the Salem Zoning Ordinance,and directly abuts 16 Saunders Street, Salem, Massachusetts 01970 to the east of said property. Defendants 4. Defendant, Leslie Byrne, who owns and resides at 16 Saunders Street, Salem, Massachusetts 01970, is the Petionner/Beneficiary of the July 28, 2009 Decision of the Salem ZBA being appealed. 5. Defendant,Bonnie Belair, whose mailing address is P.O. Box 685, Salem, Massachusetts 01970, is an alternate member of the Salem Zoning Board of Appeals (hereinafter"ZBA" or"Salem ZBA"or"the Board")who voted to grant said Special Permit and Variances at the July 15, 2009 hearing of the Salem ZBA on Ms. Byrne's Petition. (This is the only address available for Ms. Belair at the office of the Salem ZBA.) 6. Defendant, Rebecca Curran,who resides at 14 Clifton Avenue, Salem,Massachusetts 01970, is a regular member of the Salem ZBA who did not participate in the July 15, 2009 vote of the Salem ZBA on Ms. Byrne's Petition. 7. Defendant,Beth Debski,also known as Elizabeth Debski, who resides at 43 Calumet Street, Salem,Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit and Variances at the July 15, 2009 hearing of the Salem ZBA on Ms. Byrne's Petition 8. Defendant,Richard Dionne,who resides at 23 Gardner Street, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit and Variances at the July 15, 2009 hearing of the Salem ZBA on Ms. Byrne's Petition 9. Defendant,Annie Hams, who resides at 28 Chestnut Street, Salem,Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit and Variances at the July 15, 2009 hearing of the Salem ZBA on Ms. Byrne's Petition 10. Defendant, Robin Stein, who resides at 141 Fort Avenue, Salem, Massachusetts 01970, is a regular member and the chairwoman of the Salem ZBA,who voted to grant said Special Permit and Variances at the July 15, 2009 hearing of the Salem ZBA on Ms. Byrne's Petition 2 11. Defendant, Jimmy Tsitsinos, also known as James Tsitsinos, who resides at 6C Wharf Street, Salem, Massachusetts 01970, is an alternate member of the Salem ZBA who did not participate in the July 15, 2009 vote of the Salem ZBA on Ms. Byme's Petition. 12. Plaintiffs Thomas J. McKinnon, Jr., Elizabeth J. McKinnon, and Melanie M. McKinnon have standing to bring this action,as all are substantially aggrieved by the July 28, 2009 Decision of the Salem ZBA granting said Special Permit and Variances. JURISDICTION 13. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the Massachusetts General Laws. 14. This case is timely, as it has been filed within.twenty(20)days from July 28, 2009, which is when the July 28, 2009 Decision of the Salem ZBA was filed with the Salem City Clerk. PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS 15. According to records maintained by the Salem Assessor's office, 16 Saunders Street is a 1 story,wood-frame, single-family dwelling which was built in"1890"and is located on a lot containing 3,820 square feet,with forty feet of frontage on Saunders Street. 16. According to a plan for 16 Saunders Street prepared by Thomas A. Appleton,dated January 1948, and recorded with the Essex South Registry of Deeds at Book 3586, Page 295, 16 Saunders Street is a nearly triangular lot whose dimensions are 44.5 feet along the front(ie. westerly) lot line along Saunders Street, 52.97 feet and 66 feet along the left (ie. northerly)side lot line, 12.5 feet along the rear(ie. easterly) lot line, and 113 feet along the right(ie.southerly) side lot line shared with the Plaintiffs' property at 14 Saunders Street, altogether comprising 3,820 square feet. 17. Also according to said plan,there is a distance of only five feet between the single-family dwelling at 16 Saunders Street and the shared side lot line with 14 Saunders Street to the south, and a distance of only five feet between the dwelling at 14 Saunders Street and said shared side lot line. 18. The single-family dwelling at 16 Saunders Street sits on a raised full basement and consists of a long rectangular block sixteen(16) feet in width by thirty-six (3 6) feet deep, which block is perpendicular to Saunders Street, and a rectangular wing projecting from the left(ie. northern) side of the main block, and extends slightly back from the center of same, which wing is six(6)feet wide and fifteen(15) feet deep. 19. In addition there is a raised front porch at the left front(northwest)corner of the single- story dwelling,which Ms. Byrne had built approximately 8 years ago,which porch - 3 - extends from the westerly side of said wing and wraps around the left front(ie. northwest)comer of the main block all the way to the Saunders Street sidewalk. 20. Said porch is approximately 16 feet deep and has frontage on Saunders Street of twelve (12) feet, with capacity for storage underneath. 21. 16 Saunders Street is located in an R-2 zoning district. 22. Pursuant to said R-2 zoning, the minimum lot size is fifteen thousand (15,000) square feet, as compared with the 3,820 square foot lot area for 16 Saunders Street, which is only 25.46%of said minimum requirement. 23. Also pursuant to said R-2 zoning, the minimum lot frontage is one hundred(100) feet, as compared with either forty (40)feet for 16 Saunders Street based on the Salem Assessor's records, or forty-four and one half(44.5) feet based on the 1948 plan prepared by Thomas A. Appleton, which existing frontage is only 40%or 44.5%of said minimum requirement. 24. Also pursuant to said R-2 zoning, the minimum front yard setback is fifteen(15) feet,as compared with a zero setback based on the existing front porch at 16 Saunders Street, which extends to the Saunders Street sidewalk. 25. Also pursuant to said R-2 zoning, the minimum side lot setback is ten(10) feet, as compared with five (5) feet between the existing single-family dwelling at 16 Saunders Street and the shared side lot line with 14 Saunders Street to the south. 26. Also pursuant to said R-2 zoning,the minimum lot width is one hundred(100) feet, as compared with either the 44 foot width or the 44.5 foot width along the front(ie. westerly)lot line along Saunders Street, and only 12.5 feet along the rear(ie. easterly) lot line of the 16 Saunders Street lot. 27. Also pursuant to said R-2 zoning,the minimum lot coverage is thirty-five(35 %)percent, as compared with only 17.43%coverage for the existing single-family dwelling at 16 Saunders Street. 28. There is also a single-stall garage at 16 Saunders Street, located to the left rear of the existing single-family dwelling, which would appear to violate the existing single-story 10 foot minimum side lot setback,and also the minimum distance between buildings requirement for an R-2 district of thirty (30) feet. 29. Thus, 16 Saunders Street already violates the minimum front and side yard setback requirements of an R-2 zoning district, and the existing lot does not conform to the lot area and lot width requirements of an R-2 district, and the existing garage would also appear to violate the existing side lot line setback and distance-between-building minimum requirement of an R-2 district. 4 - 30. The petitioner, Leslie Byrne,has owned 16 Saunders Street since September 12, 1990. 31. On June 24, 2009 Ms. Byrne filed a Petition seeking a Special Permit pursuant to Sections 8-4, 8-6, and 94 of the Salem Zoning Ordinance, "and such other relief as the Board deems appropriate." 32. Although the 3-paragraph"Statement Of Grounds"attached to said Petition acknowledges that the proposed changes involves enlarging the footprint of what is already a nonconforming lot and nonconforming structure, Ms. Byrne did not check the box on the form ZBA Petition indicating that she was also requesting Variances, and instead checked only the box indicating she wastis seeking a Special Permit. 33. Essentially Ms. Bryne's Petition sought(a)to"square off"the northerly (ie.North River) side of the existing dwelling by extending the existing wing to the front and back of the building,(b)to extend the rear of the resulting rectangular building by six (6) feet, thereby significantly decreasing the already non-conforming seven(7) foot distance between the left rear(ie. northwest)comer at the existing dwelling and the front right(ie. southwest corner) of the garage, and(c)to add a second and attic story to the resulting 41'-10'/:" by 21'-10" rectangular building,while retaining the raised wooden porch at the front of the building. 34. At its meeting on July 15, 2009 the Board of Appeals voted five(5)in favor and none (0) opposed"to grant a Special Permit under Section 5-30), Extension of Nonconformity, Section 84,Nonconforming Structure, and Section 8-6, Board of Appeals, Granting Special Permits, and Variances from the dimensional requirements of Section 6-4, Table I: Residential Density Regulations"of the Salem Zoning Ordinance. 35. Although Finding No. 2 of said July28, 2009 ZBA Decision recites that"space is needed to accommodate a growing family," Ms. Byrne is approximately forty(40)years old, is not married, and has no children of her own. 36. As to each of the following Counts,the Plaintiffs reaffirm, re-allege,and incorporate all of the prior allegations contained in paragraphs 1-35 inclusive above. ARGUMENT COUNTI The Special Permit was granted in violation of Article IX, Section 94(b) of the Salem Zoning Ordinance. 37. Article IX, Section 9-4(a)of the Salem Zoning Ordinance entitled, "Special Permits," provides the following in relevant part: In hearing and deciding applicants for special permits, the Board of Appeals...shall deny special permits when not 5 - in harmony with the purpose and intent of this ordinance. Emphasis added. 38. Article I, Section 1-1(a)of the Salem Zoning Ordinance, entitled"Purposes," includes the following explicit Purposes of said Ordinance: "...to secure safety from fire... and other dangers,... to prevent overcrowding of land,...to conserve the value of land and buildings..." 39. The Special Permit awarded to Ms. Byrne pursuant to the July 28, 2009 Decision of the Salem ZBA is contrary to the Purposes of the Salem Zoning Ordinance, including the above explicit purposes. 40. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit and Variances, and said July 28,2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT II The Special Permit was granted in violation of Article V, Section 5-3(j)of the Salem Zoning Ordinance. 41. Article V, Section 5-30) of the Salem Zoning Ordinance, entitled"Extension of nonconformity,"provides the following in relevant part: Notwithstanding anything to the contrary appearing in this ordinance,the board of appeals may, in accordance with the procedures and conditions set forth in sections 8-6 and 94 herein,grant special permits for alterations of nonconforming structures and for...enlargement, extension or expansion of nonconforming structures... provided,however,that such... change, extension, enlargement,or expansion shall not be substantially more detrimental than the existing nonconforming use to the neighborhood...Emphasis added. 42. For the reasons set forth in the Count I above, the approved enlargement of the existing nonconforming dwelling pursuant to the July 28, 2009 Decision of the Salem ZBA is not "in accordance with the...conditions set forth in sections...9-4 herein..."and for that reason alone,the Board exceeded its authority in granting said Special Permit. 43. Moreover, without limiting the generality of the foregoing,due to the increased fire risk alone to the neighborhood, said enlargement is in fact substantially more detrimental to the neighborhood, including(and especially)to the Plaintiffs, than the prior nonconforming use was detrimental to the neighborhood. 6 44. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT III The Salem Zoning Board of Appeals acted arbitrarily, capriciously, and unreasonably in approving a Special Permit and setback variances at 16 Saunders Street in its July 28,2009Decision. 45. The Board acted arbitrarily, capriciously, and unreasonably throughout its July 28, 2009 Decision, including as set forth in Counts I-VIII hereof. 46. Without limiting the generality of the foregoing, the Salem ZBA also acted arbitrarily, capriciously, and unreasonably in approving said Special Permit and Variance by disregarding the increased fire risk to the Plaintiffs and to the neighborhood in general, as well as the diminution in the Plaintiffs' property value, as a result of said Decision. 47. The Board also acted arbitrarily, capriciously, and unreasonably by ignoring the 30-foot- distance-between-buildings requirement of the Salem Zoning Ordinance in its July 28, 2009 Decision,and by refusing to consider other alternatives more compatible with the Salem Zoning Ordinance and the Plaintiffs' rights. 48. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit and Variances,and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNTIV There are no special conditions and circumstances affecting the parcel which do not generally affect other land or buildings in the same district 49. The 16 Saunders Street property is a flat,nearly triangular parcel of land which is forty (40)or forty-four and one-half(44.5)feet wide along Saunders Street,approximately one hundred nineteen(119) feet deep along the left(ie. northerly) side lot line,twelve and one half(12.5)feet at the rear, and one hundred thirteen(113) feet along the right(ie. southerly) side lot line shared with the Plaintiffs' property at 14 Saunders Street. 50. There are no ledges, cliffs,ravines, swamps, marshy areas, watercourses,or other natural or topographical features that uniquely affect the land or proposed building. 51. Given that most of the land to the 16 Saunders Street lot exists to the rear of the existing single-story dwelling, there are alternative ways of expanding said dwelling more 7 - compatible with the Salem Zoning Ordinance, which would not cause the kind of substantial harm to the Plaintiffs that said July 28, 2009 Decision does. 52. Thus, the Defendants cannot prove this variance requirement as a matter of law. 53. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT V Literal enforcement of the provisions of the Salem Zoning Ordinance does not involve legally- recognizable hardship, fmancial or otherwise,to the Petitioner 54. It is axiomatic under Massachusetts Law that the term"hardship"within the meaning of Chapter 40A does not include any hardship which is self-created. 55. The size and shape of the lot at 16 Saunders Street has remained the same at least since the recorded plan prepared by Thomas A. Appleton in January of 1948,which includes the period of Ms. Byme's ownership of said property, which commenced on September 12, 1990. 56. Similarly, other than with respect to the front porch which Ms. Byrne had added approximately 8 years ago, the size and shape of the existing dwelling at 16 Saunders Street, and its location on the lot, has not changed materially during Ms. Byrne's ownership of said property. 57. Although Finding No. 2 of said July 28, 2009 ZBA Decision recites that"space is needed to accommodate a growing family,"Ms. Byrne is approximately forty(40)years old, is not married, and has no children of her own. 58. Hence,by purchasing said property, Ms. Byrne has in fact created her own hardship. 59. Thus the Defendants cannot prove this variance requirement as a matter of law. 60. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT VI The relief granted causes substantial detriment to the public good and nullifies and substantially derogates from the intent and purpose of the Salem Zoning Ordinance _ g _ 61. As stated in paragraph 38 in Count I hereof, Article I,Section 1-1(a) of the Salem Zoning Ordinance, entitled"Purposes," includes the following explicit Purposes of said Ordinance: "...to secure safety from fire... and other dangers,... to prevent overcrowding of land,...to conserve the value of land and buildings." 62. The Variances and Special Permit granted to Ms. Byrne pursuant to the July 28, 2009 Decision of the Salem ZBA are contrary to the above explicit Purposes of the Salem Zoning Ordinance, including the above explicit purposes. 63. For the reasons hereinafter set forth in Count VII hereof, the July.28, 2009 ZBA Decision also violates Article IV, Section 4-1(1) and(2)of the Salem Zoning Ordinance, entitled "Minimum regulations, uniform applicability." 64. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT VII The July 28,2009 ZBA Decision violates Article IV, Section 4-1(1) and (2) of the Salem Zoning Ordinance 65. The July 28, 2009 ZBA Decision also violates Article IV, Section 4-1(1)and(2)of the Salem Zoning Ordinance,entitled"Minimum regulations; uniform applicability,"which provides the following in relevant part: (1) No...building or structure...shall hereafter be erected, constructed...unless in conformity with all regulations herein specked for the district in which it is located. (2) No building or other structure shall here-after be erected or altered: . . . c. To occupy a greater percentage of lot area; d. To have narrower or smaller front yards, side yards, rear yards or other open spaces; than herein specified for the district in which it is located or in any other manner contrary to the provisions of this ordinance. Emphasis added. - 9 - 66. As set forth in paragraphs 22-29 inclusive hereof, the existing lot and structures at 16 Saunders Street already violate the minimum requirements of an R-2 zoning district in several material respects. 67. Accordingly,the June 28, 2009 ZBA Decision violates Article IV, Section 4-1(1) and (2) of the Salem Zoning Ordinance because it allows for the erection and construction of a structure which occupies a greater percentage of the lot area than that allowed in a R-2 district, and it also creates smaller front and side yards at 16 Saunders Street than those allows in an R-2 district. 68. Because certain grandfathered buildings and lots in the neighborhood are already nonconforming, that is not a proper basis for disregarding the Salem Zoning Ordinance and expanding/exacerbating said nonconformities,especially under the present .circumstances. 69. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT VIII The Plaintiffs are substantially aggrieved by the July 28,2009 ZBA Decision 70. The 2 '/z-story structure approved by the Salem ZBA in its July 28, 2009 Decision represents a substantial detriment to the Plaintiffs, including(without limitation) for the increased risk of fire, increased noise, loss of privacy, shadows, loss of view, inconvenience of maintenance, and diminution in their property values that will be inevitably caused by said structure. 71. With respect to the Plaintiffs' loss of use, shadows, and other deleterious effects of the July 28, 2009 ZBA Decision to them, it is important to point out that Ms. Byrne opposed earlier zoning relief sought by a neighboring property owner(s) of the property immediately to the left(ie. north)of her 16 Saunders Street property on the same side of the street, and only withdrew her opposition once said owner(s)altered his/their plans so as to preserve Ms. Byme's view, and allow adequate setbacks between the two properties. 72. The Plaintiffs are substantially aggrieved by the July 28, 2009-ZBA Decision. 73. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit and Variances, and said July 28,2009 Decision of the Salem ZBA should be annulled in its entirety. RELIEF SOUGHT - 10 - The Plaintiffs respectfully request that this Court: a. enter a Judgment in their favor annulling in full the July 28, 2009 Decision of the Salem. Zoning Board of Appeals; b. award the Plaintiffs cost and reasonable attorneys fees in connection with their prosecution of this appeal; and c. grant such other relief as is just and expedient. Respectfully submitted, Thomas J. McKinnon,Jr., Elizabeth J. McKinnon, Melanie M. McKinnon, By their attorney, August 11, 2009 John H. Carr,Jr., Esq. 9 North Street Salem, MA 01970 978-825-0060 BBO# 075281 - il - cONHIJ CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 fn �� TELFAX: 978-740-9 asses 1009 JUL 28 p 3: t1S KIMBERLEY DRISCOLL F-!LL # MAYOR CiTy CLEt:Y,, Jl1LE C 7 y S July 28, 2009 Decision City of Salem Zoning Board of Appeals Petition of LESLIE BYRNE, seeking a Special Permit in order to increase the size of a legally nonconforming structure, and Variances from front and side setback requirements, to allow for the addition of a second story(with attic) and expansion of the footprint of the house on the property located at 16 SAUNDERS STREET, Salem,MA, in the Residential Two-Family Zoning District(R-2). Petitioner seeks a Special Permit pursuant to the Salem Zoning Ordinance, 55-30), Extension of Nonconformity, §84,Nonconforming Structure, and C8-6,Board of Appeals; Granting Special Permits. Petitioner also seeks Variances pursuant to the Salem Zoning Ordinance, §64, Table I: Residential Density Regulations. Statements of fact: 1. Attorney Scott Grover represented the petitioner,Leslie Byrne,at the hearing. 2. In a petition dated June 24,2009,the applicant requested a Special Permit and"such other relief as the Board deems appropriate" in order to increase the size of a legally nonconforming structure. The Building Inspector determined Variances were needed because the plans submitted with the application show an expansion of the house's footprint such that the structure would encroach on the front and side yards. 3. Plans also showed the addition of a second story. The portion of the proposed second story that did not represent any increase in the existing footprint did not require Board of Appeals relief. 4. A public hearing on the above mentioned Petition was opened on July 15,2009, pursuant to Mass General Law Ch. 40A, % 11. The pubic hearing was closed on July 15, 2009,with the following Zoning Board of Appeals members present: Robin Stein (Chair),Richard Dionne,Beth Debski, Annie Harris,Bonnie Belair(alternate), and Jimmy Tsitsinos (alternate). 5. At the hearing, several residents voiced opposition to the project, citing concerns that the project would block water views and light, and would decrease the value of an abutting house. Wand 7 Councillor Joseph O'Keefe also spoke in opposition. A petition was submitted with 13 names of residents in opposition to the project,one 2 of whom also submitted a letter of opposition. An additional four residents submitted letters of opposition. 6. Several residents spoke in support of the petition, saying the project would enhance the streetscape and improve the neighborhood. In addition,two neighbors submitted letters to the Board in support of the project. 7. At its meeting on July 15,2009,the Board of Appeals voted five (5) in favor and none (0) opposed to grant a Special Permit under§5-30),Extension of Nonconformity, §84,Nonconforming Structure, and §8-6,Board of Appeals, Granting Special Permits, and Variances from the dimensional requirements of 56-4, Table I: Residential Density Regulations. The Board of Appeal, 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. Special conditions and circumstances exist affecting the parcel or building, which do not generally affect other land or buildings in the same district, as the property is oddly shaped: it is nearly triangular, with an angled Northwest lot line. Additionally, the house is smaller than the other houses on Saunders Street and is the only one-story house on the street. 2. Literal enforcement of the provisions of this ordinance would involve substantial hardship, financial or otherwise, to the appellant. Space is needed to accommodate a growing family, and owing to the small size of the house (smaller than others in the district) and the irregular shape of the lot, expansion of living space in accordance with zoning requirements is difficult. 3. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning ordinance. The change most detrimental to neighbors—addition of a second story—is already allowed as of right. The additional relief granted to allow expansion of the footprint is de minimus. 4. The applicant may vary the terms of the Residential Two-Family District to construct the proposed development, which is consistent with the intent and purpose of the City of Salem Zoning Ordinance. 5. In permitting such change,the Board of Appeals requires certain appropriate conditions and safeguards as noted below. 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 concludes: 1. To allow for the addition to the house as proposed,the requested Special Permit for the extension of a nonconforming structure,and Variances from dimensional requirements for structures in the Residential Two-Family zone is granted. 3 In consideration of the above,the Salem Board of Appeals voted,five (5) in favor(Stein, Harris,Belair,Debski and Dionne) and none (0) opposed,to grant petitioner's requests for a Special Permit and Variances subject to the following terms,conditions,and safeguards: 1. Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner. 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 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. A Certificate of Inspection is to be obtained. 7. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to the Planning Board. 8. Unless this Decision expressly provides otherwise, any zoning relief granted does not empower or authorize the Petitioner to demolish or reconstruct the structure(s) located on the subject property to an extent of more than fifty percent (50%) of its floor area or more than fifty percent (50%) of its replacement cost at the time of destruction. If the structure is demolished by any means to an extent of more than fifty percent (50%) of its replacement cost or more than fifty percent (50%) of its floor area at the time of destruction,it shall not be reconstructed except in conformityv,ith the provisions of the Ordinance Robin Stem, Clair Salem Zoning 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.