103 SCHOOL STREET - ZBA 103 School St. B-1 w
H Drew Romanovitz - owner
Wendy Thatcher - petitioner - -
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J �
of 1�ttlem, 4%s5aC4U6rj
�Voara of �"eal -
�,.�,^.,
DECISION ON THE PETITION FOR AN ADMINISTRATIVE RULING OF
SARAH M. HAYES FOR PROPERTY LOCATED AT 103 SCHOOL STREET (B-1 )
A hearing on this petition was held on August 24, 1988 with the
following Board Members present: James Fleming, Chairman, Messrs.
Nutting, Luzinski, Labracque, and Dore. Notice of the hearing was
sent to the owner at the property, abutters, and others, and
notices of the hearing were properly published in the Salm
Evening News in accordance with the provisions of Massachusetts
General Laws, Chapter 40A.
The petitioner, Sarah M. Hayes, the duly elected Councillor from
Ward Six, stated that the Building Inspector granted the owner of
the property a building permit to convert an existing neighborhood
grocery store to a new use "storage warehousing". The petitioner
asked for an administrative ruling frau the Board of Appeals
that such use, that is "storage warehousing" is not apermitted
use in a B-1 District.
The owner of the property, Drew Rcmanovitz, was present and argued
that "storage warehousing" was a permitted B-1 use, and submitted
a written brief in support of that position.
Several abutters and neighbors also appeard at the hearing and
spokeagainst allowing the property to be utilized for "storage
warehousing". They also submitted a written brief.
The Board of Appeal, after careful consideration of the evidence
presented, makes the following finding of fact:
1. The intended use, "storage warehousing" is in fact
covered by the terms of the Salem Zoning Ordinance,
Section V, 6 (f) , and that therefore, by implication
is not a permitted use in a B-1 District, as those
uses are enumerated in Section V,4.
On the basis of the above finding of fact, and on the evidence
presented at the hearing, the Board of Appeals voted unanimously,
-7i
DECISION ON THE PETITION FOR AN ADMINISTRATIVE RULING
OF SARAH M. HAYES FOR PROPERTY LOCATED AT
103 SCHOOL STREET (B-1) SALEM
5-0 to allow the petition for an administrative ruling and to order
the Building Inspector to revoke Building Permit 241-88 forthwith.
ALLOWED
James M. Fleming, Esq.
Chairman, Board of Appeal
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK
APPEAL FROM THIS DECISION. IF W;Y. SHkLL BE MADE PURSUANT TO SECTION 17 OF THE F'AP'
CENTRAL LAWS. CHAPTER SCS. A%: SHAL! BE FOLD W!THIN 20 DAYS AFTER THE DATE 0.-
[IF
OF THIS DECiSIDN IN THE OFFICE OF THE CITY CLERK,
PURSIL,T TO MASS- CE:'FR._ L-' 'S. =-.i SJ_ 11. THE VARIAN-' C, -
LF.A.' HEREIN H".LL N2: - 'i{Ci UNTIL A COPY OF THERE CEG,
F:.�.LI❑P: ('c lHE CI':'i DLFRa _i� G""_ HL.''E ELA.,SED N,
fF
t4SULH AN APPA h', B_°t; 11'F THAI IT - BEES
PE 'NO-L ..! THE .,:UTH ESS-):
Oi- RECORD OR IS REWRDEO AND AJ' CEG THz 0Yi7ER'S CERTIFICAIE Ur TITLE,
BOARD OF APrin.
Attachment B
Petitioners for an Administrative Ruling on a permit for 103 School Street
Date of petition: March 15, 1989
Signature Name Address Phone
/ /Z 4�ome f�•
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s7 J SG}}o pv S'f
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6�L,e, � '� �„ QIP ALic�-- a 'DnWNELL SAL n0l 45 6 0
H, -99 7V,5-- y37%
i
f1Zit>y of $Ulem, Aassadjusetts
`-�3 .�,j F nttrD of erll
liar 15 103244 190
DECISION-ON THE PETITION OF WENDY K. THATCHER FOR AN ADMINBIRYITIVE
RULING FOR 103 SCHOOL ST. (B-1 ) H. DREW ROMANOVITZ (OWNER)TI liJ �^
>B.
A hearing on this petition was held May 17, 1989 with the following Board :_=
Members present: James M. Fleming, Chairman; Richard A. Bencal , Vice Chairman;
John Nutting 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 Caws-.Ch'3pter:40A.
The petitioner is requesting the Board for an Administrative Ruling that: "
storage warehousing is not a permitted use in a B-1 district and to order the.
Inspector of Buildings to revoke the permit for a warehouse at 103 Schoo:L;St:._;:.-
The Board of Appeal , after careful consideration of the evidence presented,
makes the following findings of fact: -
1 . The intended use, "storage warehousing" is in fact covered by Section
V 6(f) of the Salem Zoning Ordinance and is not a permitted use in a
B-1 district.
2. Any approvals given or granted by the Building Department were in error.
On the basis of the above findings of fact, and on the evidence presented, the
Zoning Board of Appeal voted unanimously, 4-0, to allow the petition for an
Administrative Ruling an to revoke Building Permit #241-88 and any others
relative to this petition and property forthwith.
R7chard ental , Vice Chairman
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 at
the Mass. General taws, Chapter 808, and shall be filed within 20 days
after the date of filing of this decision in the office of the City Clerk.
Pursuant to Mara. ,eoeral La.vs, Chapter 808, Section 11, the Variance
or apeciol Permit 7rinzed he;ein shalt not take effect until a copy of the
decision, bearin_ the ceruflcahcn of the City Clerk that 20 days have
elapsed and no appeal has been fired, or that, if such appeal has been
filed,that it has been dismisseC or denied is recorded in the South Essex
Registry of Deeds and indexed under the name er the owner of recordor
Is recorded and noted on the owner's Certificate of This.
BOARD Of APPEAL]
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss 47`" iSUPERIOR COURT
CIVIL ACTION
No. 88-2701
H. DREW, ROMANOVITZ,
Plaintiff
651
3LS.
p p
CITY OF SALEM'.AND SALEM .BOARD *°
OF APPEALS, SARAH M. HAYES, ET AL,
,Defendants fr'
MEMORANDUM AND ORDER ON PLAINTTFF�S
MOTIONS FOR `ENTRY OF F NAL i77[`1tFF
AND TEMPORARY RESTRAINING ORDER
AND 'PERMANENT- INJUNCTION
Background
The plaintiff owns a commercial building at 103 School Street
in Salem, Massachusetts, which was used as. a: supermarket and zoned
as nonconforming. On April 23, . 1988., `tthe, plaintiff`was .granted a
change of nonconforming use permitting him to use the.. building as
storage units. On May 12, 1988 the Defendant, Sarah M. Hayes, wrote
to the city Building Inspector who had granted the plaintiff's
_ ..permit. In that letter Ms. Hayes argued that the use of the School
Street building as storage violated the. zoning ordinance and she
William Monroe, James Fleming, Richard Bencal, . John
Matting, Edward Luzinski, Peter Strout, Peter Dore, Arthur
Levesque.
I { -
2
requested the inspector to "take all action necessary to remove the
use from the building. . . . "
On May 23 , 1988 , the Building Inspector replied to Ms. Hayes'
letter. He countered that the use was not in violation of the
zoning ordinance and argued his reasons for that conclusion. On
June 1, 1988 , Ms. Hayes acknowledged the Inspector's letter,
provided an apt rebuttal and requested the Inspector inform her of
the Board of Appeal review process if he refused to remove the
permit. The Building Inspector did not reply.
On July 21, 1988 , the defendant Hayes filed a petition for
administrative ruling with the Salem Board of Appeals. On August
24 , 1988 the Board held a hearing, allowed the petition and
overruled the Building Inspector' s decision. On October 13 , 1988 ,
the plaintiff brought this action appealing the Board's action. He
now moves for an entry of final decree annulling the Board's
reversal of the Inspector' s decision on the grounds that defendant
Hayes' petition to the Board was time barred thus destroying the
Board' s jurisdiction over the appeal. In the alternative, the
plaintiff asks this Court to issue Temporary . Restraining Orders.
Discussion•
General Laws Chapter 40A, sec. 8 allows persons "aggrieved by
an order or decision of the inspector of buildings. . . " to appeal
to that decision. G.L. C. 40A, sec. 8. Massachusetts Feather Co.
v. Aldermen of Chelsea, 331 Mass. 522 (1954) . Such an appeal must
be "taken within thirty days from the date of the order or decision
3
which is being appealed. " G.L.
C. 40A, sec. 15, Vokes v.
Avery W,
Lowell , 18 Mass. App. Ct. 471, 479 (1984) , rev. den. 393
Mass. 1103 (1985) . The Appeals Court held that "the date on which
a zoning enforcement officer responds in writing to a sec. 7
request for enforcement creates the appealable decision
contemplated by sec. 8 and becomes the date for measuring the
thirty day appeal period set forth in sec. 15: " Id.
The plaintiff argues that on May 23, when the. Salem Building
Inspector responded to defendant Hayes ' letter of May 12, the
thirty day time limit for Hayes ' appeal to the Salem Board of
Appeals began to run. The defendants counter that when Hayes wrote
again on June 1, and the Inspector gave no second response so that
under G.L. C. 40A, sec. 13 ,2 the defendants ' appeal time began to
run on July 1.
I disagree. The defendants' conclusions completely ignore the
first round of letters exchanged between defendant Hayes and the
Building Inspector. They offer no argument of any kind for why this
first round of letters should be ignored. I can find no reason why
the May letters should not have legal force and every reason why
they should. If one can escape mandatory time limits by merely
ignoring those events legally determined to trigger the limits,
then the statute of limitations is meaningless. To the contrary,
2
G. L. C. 40A, sec. 13 applies where the authority has
failed to respond to a request. It all that su
be considered ch failure will
from a denial if no answer is given in thirty-five days
the date of request. Thus, a party in that situation would
have an additional thirty days to appeal after the constrictive
denial was deemed to issue. G. L. c. 40A, sec. 13 :
4
compliance with statutory time restraints are essential to
Jurisdiction. Greeley v. Framingham, 350 Mass. 5512, 552 (1966) .
The plaintiff' s second motion was offered only in the
alternative and therefore need not be addressed.
ORDER
For the foregoing reasons it is hereby ORDERED that the
plaintiff' s motion for Entry of Final Decree on the Salem Board of
Appeal ' s decision for lack of Jurisdiction is GRANTED.
It is further ORDERED that the Board' s decision is annulled
and the building permit numbered 241-88 is hereby reinstated
without change.
Date; -- char S. Kelle
Justice of the S perior Court
COMMONWEALTH OF MASSACHUSETTS
Department Of The Trial Court
Essex, ss. Superior Court
No. 88-2701
H Drew Romanovitz
VS.
City Of Salem And Salem Board
Of Appeals, at al
JUDGMENT
This cause came on for hearing before the Court, Kelley, J.
presiding, and the issues having been duly heard and findings
having been duly rendered, It is Ordered and Adjudged;
the plaintiff' s motion for Entry of Final Decree on the
Salem Board of Appeal' s decision for lack of Jurisdiction is
Granted.
It is further Ordered that the Board' s decision is annulled
and the building permit numbered 241-88 is hereby reinstated with-
out change.
The Clerk-Magistrate of the Court is directed to mail an
attested copy of this judgment within thirty days from the date
hereof, to the City Clerk, Building inspector, and Board of
t� Appeals respectively of the City Of Salem.
V Dated at Salem, Massachusetts, this bth day of February, 1989.
�t
ss s an erc
Attachment A
Petition to the Salem Board of Appeals dated March 15, 1989
regarding a permit for a warehouse at 103 School Street.
A letter dated January 31 , 1989 and signed by eighteen residents
of the neighborhood was hand delivered to the Building Inspector's
Office on February 3, 1989. The letter objected to the locating
of a warehouse at 103 School Street, questionned the issuance of
a permit for this use, and requested that the permit be revoked.
No response was received from the Building Inspector within the
allowed thirty-five day response time. A negative response to
the request has therefore been assumed.
In past correspondence concerning the permit, the Building Inspector
has stated that the proposed new use is not covered by the Zoning.
Ordinance and that he is, therefore, empowered to interprete that
use as one permitted in a B-1 District.
Attachment B
Petitioners for an Administrative Ruling on a permit for 103 School Street
Date of petitions March 15, 1989
Signature Name Address Phone
_ J 1
7// X37;:
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oftt1Pm, C2IsstIcljusP a
; s pourb of �kppeal Fi
etc�n,,bti� ra.,:wa
DECISION ON THE PETITION FOR AN ADMINISTRATIVE RULING OF
SARAH M. HAYES FOR PROPERTY LOCATED AT 103 SCHOOL STREET (B-1)
A hearing on this petition was held on August 24, 1988 with the
following Board Members present: James Fleming, Chairman, Messrs.
Nutting, Luzinski, Labracque, and Dore. Notice of the hearing was
sent to the owner at the property, abutters, and others, and
notices of the hearing were properly published in the Salem
Evening News in accordance with the provisions of Massachusetts
General Laws, Chapter 40A.
The petitioner, Sarah M. Hayes, the duly elected Councillor from
Ward Six, stated that the Building Inspector granted the owner of
the property a building permit to convert an existing neighborhood
grocery store to a new use "storage warehousing". The petitioner
asked for an administrative ruling from the Board of Appeals
-hat such use, that is "storage warehousing" is not apermitted
use in a B-1 District.
The owner of the property, Drew Romanovitz, was present and argued
that "storage warehousing" was a permitted B-1 use, and submitted
a written brief in support of that position.
Several abutters and neighbors also appeard at the hearing and
spokeagainst allowing the property to be utilized for "storage
warehousing". They also submitted a written brief.
The Board of Appeal, after careful consideration of the evidence
presented, makes the following finding of fact:
1. The intended use, "storage warehousing" is in fact
covered by the terms of the Salem Zoning Ordinance,
Section V, 6 (f) , and that therefore, by implication
is not a permitted use in a B-1 District, as those
uses are enumerated in Section V,4.
On the basis of the above finding of fact, and on the evidence
presented at the hearing, the Board of Appeals voted unanimously,
DECISION ON THE PETITION FOR AN ADMINISTRATIVE RULING
OF SARAH M. HAYES FOR PROPERTY LOCATED AT
103 SCHOOL STREET (B-1) SALEM
5-0 to allow the petition for an administrative ruling and to order
the Building Inspector to revoke Building Permit 241-88 forthwith.
ALLOWED
James M. Fleming, Esq.
Chairman, 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 P4P"
GENERAL LAWS. CHAPTER 878. AND SHALL BE FILED WITHIN 20 DAYS AFTER THE DATE 0; _
OF THIS DECISION IN THE OFFICE OF THE CITY CLERK.
PURS..NT TO A4ASS. CENFRA.:_ L-NS, CHA"ER 808, SECTIh_'N ll, THE VARIANCE -
LRAPGEu HEREIN. SHALL N,i: TA,:.i EFFECT UNTIL A COPY OF THEDEGSI.i'f. E';.'.
ATC114 OF THE CP,"Y CLERn ,,.1; 3) DAYS HAVE ELAPSED A.,qNO APPEAL H,LS ;.
OP SHAT. IF SUCH AN APrzEA HAS 0E'R F:LE. THAI IT H ,j BCE',' DiS'.:SSED CR
RE ';'IROED N THE S,:UTH ESSJ R:,'ISTD. .f GG�S +':'� I',OE%EJ L S iH= ' -.OF RECORD OR IS RECORDED AND NGFED GN THE OWNER'S CERTIFICATE OF TITLE, IL
BOARD OF APrEn;
{yqfgJ���Tr P�
KEVIN T. DALY °s .y.';�.,� _� LEONARD F. FEMINO
ASSISTANT CITY SOLICITOR '0 ;? ASSISTANT CITY SOLICITOR
93 WASHINGTON STREET ry,mL,�rr.
93 WASHINGTON STREET
AND CITY OF SALEM - MASSACHUSETTS AND
,ONE CHURCH STREET ONE SCHOOL STREET
MICHAEL E. O'BRIEN
SALEM. 1970 CITY SOLICITOR BEVERLY, MA 01915
745--44 3111
745-0500 93 WASHINGTON STREET 745-4311
AND 921-1990
PLEASE REPLY TO ONE CHURCH STREET 81 WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET
SALEM, MA 01970
745-4311
744-3363
PLEASE REPLY TO 81 WASHINGTON STREET
P
February 13 , 1989
James M. Fleming, Chairman CD
T
Salem Board of Appeal .� CI
One Salem Green "
Salem, Massachusetts 01970 W
� . m
Re : Romanovitz m y T
fA
v V+ ca
Board of Appeal, et al
Essex County Superior Court #88-2701
Dear Mr: Fleming:
Please be advised that on January 13 , 1989 I participated
in a hearing on plantiffIs motion for entry of final decree
in the above matter. After hearing, the court (Kelly, J. )
verbally announced a finding in favor of the plaintiff . I
recently received a Memorandum and Judgment and I am enclosing
a copy for your records . As the entry of Judgment is dated
February 6 , 1989 , any appeal must be entered by March 8 ,
1989 .
I have reviewed Judge Kelly' s memorandum and I find
the same to be based upon sound legal principles . Accordingly,
I would not recommend an appeal as the same may be considered
frivilous .
Lastly, it is my understanding that various individuals
have requested a new administrative decision from the Building
Inspector. Depending upon his response, the matter may again
be before your body in the near future.
ver} truly yours
{V/
ichael E. 0 ri
City Solicitor
MEO/jp
Enclosure
cc: Building Inspector
Councillor Sarah Hayes
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss ". SUPERIOR COURT
CIVIL ACTION
No. 88-2701
H. DREW ROMANOVITZ,
Plaintiff
vs.
CITY OF SALEM AND SALEM BOARD
OF APPEALS, SARAH M. HAYES, ET AL. '
Defendants
MEMORANDUM AND ORDER ON DTATNTTFFIS
MOTIONS FOR ENTRY OF FTNAT, nF.[R2F.F.
AND TEMPORARY RESTRAINING ORDER
AND PERMANENT INJUNCTION
Background:
The plaintiff owns a commercial building at 103 School Street
in Salem, Massachusetts, which was used as a supermarket and zoned
as nonconforming. On April 23, . 1988, the plaintiff was granted a
change of nonconforming use permitting him to use the building as
storage units. On May 12, 1988 the Defendant, Sarah M. Hayes, wrote
to the city Building Inspector. who had granted the plaintiff's
permit. In that letter Ms. Hayes argued that the use of the School
'7
Street building as storage violated the zoning ordinance and she
William Monroe, James Fleming, Richard Bencal, John
Matting, Edward Luzinski, Peter Strout, Peter Dore, Arthur
Levesque.
2
requested the inspector to "take all action necessary to remove the
use from the building. . . . "
On May 23 , 1988 , the Building Inspector replied to Ms. Hayes'
letter. He countered that the use was not in violation of the
zoning ordinance and argued his reasons for that conclusion. On
June 1 , 1988 , Ms. Hayes acknowledged the Inspector's letter,
provided an apt rebuttal and requested the Inspector inform her of
the Board of Appeal review process if he refused to remove the
permit. The Building Inspector did not reply.
On July 21, 1988 , the defendant Hayes filed a petition for
administrative ruling with the Salem Board of Appeals. On August
24 , 1988 the Board held a hearing, allowed the petition and
overruled the Building Inspector' s decision. On October 13 , 1988 ,
the plaintiff brought this action appealing the Board's action. He
now moves for an entry of final decree annulling the Board' s
reversal of the Inspector's decision on the grounds that defendant
Hayes ' petition to the Board was time barred thus destroying the
Board' s jurisdiction over the appeal. In the alternative, the
plaintiff asks this Court to issue Temporary Restraining Orders.
Discussion•
General Laws Chapter 40A, sec. 8 allows persons "aggrieved by
an order or decision of the . inspector of buildings. . . " to appeal
to that decision. G.L. c. 40A, sec. 8 . Massachusetts Feather Co.
v. Aldermen of Chelsea, 331 Mass. 522 (1954) . Such an appeal must
be "taken within thirty days from the date of the order or decision
3
which is being appealed. " G.L. c. 40A, sec. 15, Vokes v,
Avery W
Lowell , Inc. , 18 Mass. App. Ct. 471, 479 (1984) , rev. den. 393
Mass. 1103 (1985) . The Appeals Court held that "the date on which
a zoning enforcement officer responds in writing to a sec. 7
request for enforcement
creates the appealable decision
contemplated by sec. g
and becomes the date for measuring the
thirty day appeal period set forth in sec. 15. " Id.
The plaintiff argues that on May 23 , when the Salem Building
Inspector responded to defendant Hayes ' letter of May 12, the
thirty day time limit for Hayes ' appeal to the Salem Board of
Appeals began to run. The defendants counter that when Hayes wrote
again on June 1, and the Inspector gave no second response so that
under G. L. C. 40A, sec. 13 ,2 the defendants ' appeal time began to
run on July 1.
I disagree. The defendants ' conclusions completely ignore the
first round of letters exchanged between defendant Hayes and the
Building Inspector. They offer no argument of any kind for why this
first round of letters should be ignored. I can find no reason why
the May letters should not have legal force and every reason why
they should. If one can escape mandatory time limits by merely
ignoring those events legally determined to trigger the limits,
then the statute of limitations is meaningless. To the contrary,
2
failed to respond to a sec.u13 applies where the authority has
quest. It allows that such failure will
be considered a denial if no answer is given in thirty-five days
from the date of request. Thus, a party
have an additional in that situation would
thirty days to appeal after the constrictive
denial was deemed to issue. G.L. C. 40A, sec. 13 .
4
compliance with statutory time restraints are essential to
jurisdiction. Greeley v. Framingham, 350 Mass. 5512, 552 (1966) .
The plaintiff ' s second motion was offered only in the
alternative and therefore need not be addressed.
ORDER
For the foregoing reasons it is hereby ORDERED
that the
plaintiff ' s motion for Entry of Final Decree on the Salem Board of
Appeal ' s decision for lack of Jurisdiction is GRANTED.
It is further ORDERED that the Board's decision is annulled
and the building permit numbered 241-88 is hereby reinstated
without change. IL
Date; 3� S
char S. Kelle
Justice of the S perior Court
I
COMMONWEALTH OF MASSACHUSETTS
Department Of The Trial Court
Essex, ss. Superior Court
No. 88-2701
H . Drew Romanovitz
vs.
City 0£ Salem And Salem Board
Of Appeals, at al
JUDGMENT
This cause came on for hearing before the Court, Kelley, J.
presiding, and the issues having been duly heard and findings
having been duly rendered, It is Ordered and Adjudged;
the plaintiff' s motion for Entry of Final Decree on the
Salem Board of Appeals decision for lack of Jurisdiction is
Granted.
It is further Ordered that the Board' s decision is annulled
and the building permit numbered 241-88 is hereby reinstated with-
out change.
The Clerk-Magistrate of the Court is directed to mail an
attested copy of this judgment within thirty days from the date
hereof, to the City Clerk, Building Inspector, and Board of
Appeals respectively of the City Of Salem.
Dated at Salem, Massachusetts, this bth day of February, 1989.
"ITL
ss s an er
Qli#v of tzlPm, ttsstttliusP##s
�Ruttrb of �ppettl
pt0�41N6
MINUTES OF THE BOARD OF APPEAL AUGUST 24 1988
A meeting of the Salem Board of Appeal was held Wednesday, August 24 ,
1988 at 7 : 00 P.M. , second floor, One Salem Green. Notice of the
hearing having been duly advertised in the Salem Evening News on
August 10 , 17, 1988 . Abutters and other interested persons were
notified by mail.
Members Present: James Fleming, Chairman, Messrs . ,Dore, Labracgµe,
Luzinski, and Nutting.
The meeting was called to order by the Chairman, James Fleming.
Mr. Fleming appointed Peter Doreand Arthur Labrecque as regular members
for the purpose of this meeting.
MINUTES Mr. Luzinski: We held up the minutes of the June 15th meeting
and I do concur as they were printed. Motion made by Mr. Luzinski to
approve the June 15 , 1988 Minutes as submitted. Seconded by Mr.
Nutting, unanimously voted. MOTION CARRIED. Minutes of June 29 , 1988 ,
as submitted, July 20, 1988 and August 10 , 1988 as recorded. Motion
made by Mr. Nutting these minutes be approved. Seconded by Mr. Dore,
Unanimously Voted. MOTION CARRIED.
16 BARCELONA AVENUE - CHARLES A. SIDERSKI
Mr. Fleming: In order not to inconvenience anybody who might be here
for the Petition of Charles A. Siderski for a Variance from sideline
setback requirements to allow construction of a one story garage at
16 Barcelona Avenue. The petitioner has asked to be Withdrawn Without
Prejudice. Is there anyone here that is interested in that Petition?
Councillor O 'Leary we are sorry by the petitioner has asked to do so.
Mr. Nutting made the motion to allow the petition to be withdrawn.
Mr. Labrecque seconded. Unanimously voted.
WITHDRAW WITHOUT PREJUDICE
103 SCHOOL STREET - SARAH M. HAYES
Petitioner request an Administrative Ruling regarding a building permit
issued in this B-1 district.
Mr. Nutting read the application. A letter from William H. Munroe,
Zoning Enforcement Officer, and also enclosure letter to Ms . Hayes
dated May 23 , 1988 .
Mr. Fleming: For the record Ms . Hayes is my sister, I intend to sit on
this Board and vote on this matter, I do not have a financial interest
in the Administrative Ruling or the property itself and I don' t believe
under Chapter 268A any conflict.
Councillor Hayes , 21 Fairmont St. , Salem, I disagree with the
interpretation of the Building Inspector. He stated the new use is one
not covered by the Zoning Ordinance, therefore, he is empowered to
place that use in a B-1 Zone. I petitioned the Board of Appeal for an
MINUTES 8/24/88 CONTINUED PAGE TWO
Administrative Ruling stating that the intended use "storage warehousing"
is in fact covered by the terms of the Salem Zoning, section 5-6F.
And therefore _
by inplication is not a permited use in a B 1 district.
It is the belief of myself and the neighbors of the area, that the new
use, not equally or more appropriate, and is more incompatable with
the surrouding neighborhood. I would respectfully request that steps
be taken to improve this use. I am requesting the Board of APPeal
order the building inspector to revoke Building Permit 241-88 . I
asked Mr. Romanovitz, who is the owner of 103 School St. , to schedule
a meeting to explain his intended use. He did not respond to my
request.
The following spoke favor of a ruling to revoke building permit at
103 School St. : Russell Thatcher, 12 Grove St. , passed out a 3 page
summary; Richard Cowley, 100 School St. ; John Corning, 4 Devereaux Ave. ;
Joseph Vargas, 102 School St. ; Elizabeth Levesque, 68 Tremont St. ;
Edward Ryan, 66 Tremont St. ; Linda Thatcher, 12 Grove St. ; Muriel
O' Keefe, 8 Grove St. ; Janet Cowley, 100 School St. ; Joseph Marshall,
13 Grove St. ; Judy Davenport, 67 Tremont St. ; Rosemary Ryan, 66 Tremont
St. ; Elaine and Francis Ryan, 66 Tremont St. , Councillor O'Leary.
In opposition: Attorney Drew Romanovitz, owner, presented to the
Board a memorandum of law whether a building permit used for 103 School
St. is legal and valid. Mr. Fleming ruled it be incorporated into
the record. Mr. Romanovitz : First of all there was one phone call
made to my office relative to the issue. We never received any writen
concerns except. for Ms . Hayes . As to the issue of construction, there
was no construction taking place prior to the permit being issued. Mr.
Harris and I entered the building quite some time before, the permit
was issued, we walked through the building and discussed what was
going to be done. Much discussion with Building Dept. and the Fire
Dept. all parties were made well aware and the plans were reviewed
extensively, redrawn, re-reviewed, and satisfied all the concerns of
the Fire Dept. as well as the Building Inspector.
Mr. Fleming: Did you have a demolition Permit? Mr . Romanovitz : Thats
my general contractor. Mr. Fleming: Did your General Contractor?
Mr. Romanovitz : I can' t speak for that, I can only speak of my
involvement. Mr. Fleming: Did you do any construction prior to the
issuance of a Building Permit? Mr. Romanovitz : No. Mr. Fleming: Did
you review the application that your contractor submitted? Mr.
Romanovitz : I may have. Mr. Fleming: Are you satisfied that all the
statements made in that application are true to the best of your
knowledge. Mr. Romanovitz : Without reviewing it at the present time
I wouldn' t want to comment on that. Mr. Fleming: Councillor Hayes
do you have a copy of the building permit application? Councillor
Hayes : Yes . Mr. Fleming: Mr. Harris, would you get the original
application so Mr. Romanovitz will see its the same, Mr. Romanovitz:
I have reviewed it. Mr. Fleming: Is it your testimony here tonight
that the information included in that application for a building permit
is true to the best of your information. Mr. Romanovitz: With respect
to the issue of the application was for a mini storage. Mr. Fleming: Whz
is the purpose of the building sir? Mr. Romanovitz : Storage. Mr.
Fleming: Application states - storage warehouse. The estimated cost
of $40 , 000 . Mr. Romanovitz: As it turns out its not enough. Mr.
Fleming: That is what the fee was based upon, and that statement was
made under penalty of perjury. Mr. Romanovitz : Warehousing vs . Mini
MINUTES 8/24/88 CONTINUED PAGE THREE
storage, should be addressed. Warehousing dictates large open space,
not secured. Mini storage used by people moving from single
residence to condos , that type of thing. That the quality of storage
were talking about. So far as using the term warehousing, your talking
about large open space. The units range 6x6 to aproximately 10x14 ,
they are all secured and individually locked. As far
market is concerned, as losing a
the market was losing a r
oximat
4 P ely $8 , 000 a
month, that documented. The neighborhood did not support the store,
the cost to run the store was very high, neighborhood could not support.
As far as drop off space is concerned, the parking lot
to P 4 of 60x80 for cars
ark and drop p offmaterials to be stored, so theres
Mini storage is a new thing, to the common jargon, when myou parking.
ekthe
word warehouse its common to make that mistake. Mr. Nutting: You
could rent many cubicles to one person to store numerous things . Mr.
Romanovitz : Yes thats correct, but thats not the concept. This is
valid under B-1 zone. We had lengthy discussions with Mr. Munroe
he spent much time in reviewing the past records since in fact it was
a B-1 zone, theres no lessor obtrusive use, nor heavy traffic flow.
Mr. Fleming: How do you defend this one same or better in terms of
quality, character in degree of use. Mr. Romanovitz : In those issues
the exterior of the building would reflect no change. Quality is
concerned, there have been problems, kids hanging out and cars taking
off burning rubber. This is not going to take place, there will be a
fence, and secured, opening hours 8 to 8 , re business hours . If it had
been indicated to me that I had to come to the Board I would have done
so, I relied solely on the Building Inspector. I called Councillor
Hayes and she indicated a letter would be sent. It will be less
intrusive and traffic flow and security. Mr. Nutting: Where is the
access, as far as moving things in and out? Mr. Romanovitz: 5 access
doors , 1 rear, 2 front 1 on side, and 1 lower rear. The building is
self contained, solid brick building. Mr. Nutting: How far along
are you in the construction process? Mr. Romanovitz : 90 to 95% done.
Mr. Nutting: It seems the neighborhood are fearful of what might
be happening there, people are not comfortable of what is going on. Mr.
Romanovitz : If there was any indication from the Fire Dept. or the
Building Dept.that there was any need for your involvement, I would
of been the first one here.
Councillor Hayes in rebuttal: I 'm still not happy. I did send him a
letter and did call him. Presented letter, June 23, 1988. Mr .
Fleming: Did you ever talk to Mr. Romanovitz between today and June
23rd. Ms. Hayes : No I haven' t I was waiting for his response. Mr.
Romanovitz: We did send a letter. Mr. Fleming: Mr. Harris , Do you
have a copy of letter, on June 17th thats before Ms. HayesJune 23rd
letter. Mr. Fleming: Did you receive the June 17 letter? Ms . Hayes :
Yes it was sent to City Hall. Mr. Labracque: When was that permit
issued? Mr. Fleming: Issued 4/26/88 . Mr . Luzinski : Mr. Chairman,
just for clarification what are we going to act now on whether the
Building Inspector was correct on issuing the permit. Mr. Fleming:
That is correct, to align Mr. Nuttings fears, if we were to revoked
the building permit. Mr. Romanovitz would have the ability to file
for a Variance and would come before us and we would hear the merits
of the case, after public notice to the citizens of Salem. Mr. Dore:
Is this statement accurate does the building inspector have the
authority to do this? Mr. Fleming: Yes , the building inspecter can on
a question, on any question rule whether or not the plans submitted
would be in conformity with the current zoning regulations . Any one
MINUTES 8/24/88 CONTINUED PAGE FOUR
agrieved by that decision may appeal to us for an Administrative
Ruling, that his interpretation is wrong.
Mr. Nutting made the motion in favor of the petition that the Salem
Board of Appeal order the building inspector to revoke Building Permit
241-88 at 103 School St, forthwith. Mr. Luzinski seconded. Unanimously
voted. Motion Carried.
GRANTED
6 ARTHUR STREET - CARL LENTO, JOHN GIARDI , DONALD MILBAUR
Petitioner request a Special Permit to extend, nonconforming structure
to add an additional dwelling unit to existing building on this
R-2 zone.
Mr. Nutting read application. Mr. Fleming declared that the notice
was enough to put abutters and others on notice for this hearing.
Mr.Serafini: The last time we were here, the concern on parking. A
new cite plan, it indicates 6 parking spaces on the lot on Arthur St.
The barn that exist should really come down, all the parking will
be on site. A 6 ft. fence and planting trees , all the way up on the
border, and 3 large trees screening the proposed building. Suggestion
will be made, by neighbors, on the proposed parking could go in
towards the building, and the line of trees could go all the way up
to provide adequate screening. There is concern to the additional
unit, these three young men have done a tremendous amount of work to
make this presentable, it affords an opportunity to get rid of an
eyesore. Parking will serve these units, there is no foundation
because of the ledge, little or no blasting. The hy-draulic system, will
eliminate the blasting. In Salem we have a pre-blast surveyinspection
of the surrounding area and also we have a rule that before any blasting
can take place that there has to be a member of the Salem Fire Dept.
on site. Its an improvement in the area, its a means of getting rid
of an eyesore.
Mr. John Giardi spoke in favor.
In opposition: Ronald Pelletier, 11 Arthur St. ; Alice Pelletier,
4 Arthur St. ; Pauline Ingemi, 4 Arthur St. ; Mark Zubiel, 3 Arthur St. ;
and Bill Pelletier, 11 Arthur St.
Rebuttal - John Serafini: Parking reversing can be done. Planting
will be done. One of the significant things looking at the pictures,
this is a condition that has existed for almost 42 years . That
going to be changed permanently, if the plan is approved. You will
have regulated parking, landscaping, fencing and the entire section
will be up-graded with new construction. Blasting concern, built on
slab, prefered method be hy-draulic. Mr. Dore: Do you have a
response to the Gentlemens concern on the water table? Mr. Serafini:
The barn will be removed, area graded not lower loevel at grade it is now
there will be no great excavation to make the parking area. Mr.
Fleming: Do you have elevation on the attached building: Mr. Luzinski :
2/3 not more than 24 ft. high. Mr. Fleming: Its obvious, the 2
tenants there now, there a 6 vehicles . Trailor, and boat. How are
you to resolve that? Mr. Serafini: By allocating the parking spaces
to specific units . Mr. Nutting: Elaborate on the need of a Variance.