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103 SCHOOL STREET - ZBA 103 School St. B-1 w H Drew Romanovitz - owner Wendy Thatcher - petitioner - - � C ' 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�• ,�/�'� /����� GU�No� /� %—cHE.e Y `k1 7�5•x/37 s7 J SG}}o pv S'f 44 V w 71/x/.-11Z 70 �t— C0'el y lc W.co?NiNG � \ � '7 sZs--z9,6 o i7G-reo � � t 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;: DO SCttopL S(- i3 CO / 7yy oma/ :/G�7(� �����i � 'rli/ffjL'ff/ !1�.L�l�<'S.l 'L- -.�l`✓Gi�r,-r �'/'G!/ SChco x t� Co/G vc 1L f. � T ,-b AL ica Q `D/WNGLL- SA L 46 q 0 17.9 /r,"4/):a4- ST, 'IU 1-Ik� Y tcvrrP/l H , / fz-- , 7Ys= `/379 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.