18 SUMMER STREET - ZBA 18 Summer St. (R-3)
John & Joan Kelley (Pet)
�- —- Richard Pohl (Owner)
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COMMONWEALTH OF MASSACHUSETTS
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Essex, ss. Salem, Massachusetts
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IN RE: Appeal of John Kelley and Joan Kelley
i' from the decision of the Bulding Inspector,
I Salem, Massachusetts, to wit: Richard T.
j McIntosh, which decision involves the issuance
to Dr. Richard Pohl of a permit for Interior
Alterations to provide for professional offices
i at 18 Summer Street, Salem, Massachusetts. Said
permit was issued on or about July 29, 1983, for
such interior alterations on "Lot 1" shown on a
Plan entitled "Plan of Land in Salem, Mass. ,
Property of 18 Summer Street Realty Trust" Plan
Book 179 , Plan 76, recorded at the Essex South
District Registry of Deeds (a copy of which is
attached hereto and incorporated by reference
as Appendix I) . Such "Lot 1" is a part of a
larger lot which was illegally subdivided as
discussed herein. Immediately prior to such
illegal subdivision, such larger lot was owned
by Richard L. Pohl and Frances M. Pohl as
Trustees of the 18 Summer Street Realty Trust
and recorded with the Essex South District
Registry of Deeds, Book 6938, Page 110. Such
smaller "Lot 1" was conveyed on July 22, 1983 by
the aforementioned trustees to Richard L. Pohl,
Frances M. Pohl and George P. Vallis, as Trustees
of the Carriage House Realty Trust, and recorded
with the Essex Soth Registry of Deeds, Book 7168,
Page 569. Initial Permit Number 359 .
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Now appear John Kelley and Joan Kelley, who reside at 3
Cambridge Street, Salem, Massachusetts, and represent them-
selves as abutters and aggrieved parties and enter this
appeal from the decision of the Building Inspector of the
City of Salem, Essex County, Massachusetts, granting to Dr.
Richard Pohl, on or about July 29 , 1983, building permit
number 359 , to construct interior alterations to provide for
professional offices at 18 Summer Street, Salem,
Massachusetts. Said construction is to take place on a cer-
tain parcel of land designated as "Lot 1" shown on a plan
entitled "Plan of Land in Salem, Mass. , Property of 18
I Summer St. Realty Trust, " Plan Book 179, Plan 76, and
�i further and more particularly described in that deed of
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j Richard L. Pohl and Frances M. Pohl, Trustees of the 18
Summer Street Realty Trust to Richard L. Pohl, Frances Pohl,
I' and George P. Vallis, Trustees of Carriage House Realty
li Trust, and recorded with the Essex County Registry of Deeds,
Book 7168, Page 569 .
This appeal is entered and made pursuant to M.G.L.C.
i.
40A, Sections 8, + 15.
Appellants, the undersigned, specify the following
grounds for this appeal:
PETITIONERS' GROUNDS FOR APPEAL
The grant of building permit number 359 , a copy of which
is attached hereto designated Appendix II and expressly made
a part of this appeal, is in violation of the Zoning
Ordinance of the City of Salem, Massachusetts.
According to a letter dated August 10, 1983 and signed
by Richard T. McIntosh (a copy of which is attached hereto,
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designated Appendix III, and expressly made a part of this
appeal) , the basis of the grant of such permit was the
building inspector' s apparent belief that the designation of
the parcel of land upon which such business offices are to be
constructed was Zoning District B-3. Such designation is
erroneous. The proper designation is Zoning District R-3 .
The Salem Zoning Ordinance as approved August 27 , 1965
divided the City of Salem into zoning districts which are
located and bound as shown on the map entitled "Zoning Map,
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! City of Salem, " and on file with the office of the City
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Clerk. A copy of the relevant portion of such map is
+ attached hereto and expressly made a part of this appeal
1 designated Appendix IV. (The parcel of land upon which the
! construction of business offices is to occur has been
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designated by a red arrow. ) Such map shows said parcel to be
j within Zoning District R-3.
The September 2, 1969 amendment to the Salem Zoning
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Ordinance made no change in the Zoning designation of said
parcel. .. Such amendment changed the zoning district of the
easterly portion of Summer Street but had no effect on the
westerly portion of such district, where such parcel lies.
The relevant portion of the 1969 amendment provides as
follows:
No. 9 - Wards 3 and 4 - Starting at a point at the
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intersection of the centerline of Norman Street and
Crombie Street thence extending in a northerly direc-
tion a line along the centerline Crombie Street, thence
crossing Essex Street and continuing in a northerly
direction a line along the centerline of Crombie
Street, thence crossing Essex Street and continuing in
a northerly direction along the center of Sewall Street
to the centerline of Lynde Street, thence turning in a
westerly direction and extending along the centerline
of Lynde Street to the centerline of North Street,
thence turning and extending in a southerly direction
along the centerline of North Street, thence crossing
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I� Essex Street, thence continuing in a southerly direc-
tion along the centerline of Summer Street to a point of
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�i intersection with the centerline of Norman Street,
thence turning and running in an easterly direction
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along the centerline of Norman Stret back to the' g
starting point at the centerline of Crombie Street.
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The R-3 (Multi-Family Residential) district so bounded
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�I shall be changed to a B-3 (Central Business) district.
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The small R-3 District, not bounded as described
hereinbefore, on the westerly side of Summer Street
shall be changed to an R-2 (Two Family Residential)
District.
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Councillor Ingemi, on the recommendation of the
Planning Board, moved to delete the last sentence
starting with "The small R-3 District" .
The President declared No. 9 , as amended adopted
I' by a roll call vote of 10 yeas, 0 nays and 1 absent.
The parcel upon which the proposed business construction
is to take place is included in the "small R-3 District"
referred to in the above amendment. The Motion of Councillor
Ingemi in effect proposed that this district remain as a R-3
Zoning District, as originally designated on the August 27 ,
1965 map entitled "Zoning Map, City of Salem, " and on file
with the office of the City Clerk. Such motion was adopted
and incorporated in the September 2 , 1969 amendment to the
e of the amendments to the
Salem Zoning Ordinance. Also non
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j Salem Zoning Ordinance which were approved September 2, 1969
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or thereafter affected the area in question. No official
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zoning map was approved between the date of approval of the
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aforementioned 1965 map and the date of issuance of the
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I! building permit number 359 .
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The construction of the professional offices in an R-3
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Zoning District is a prohibited use. R-3 Zoning Districts
are "Multi family residential" districts. (Section V Salem
Zoning Ordinance, as amended) . Since business or commercial
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uses are not included among the permitted uses for an R-3
Zoning District, building permit number 359 which permits Dr.
Pohl to construct business offices, was issued erroneously.
Furthermore, and informatively, it should be noted that
the parcel of land known as "Lot 1" upon which the construc-
tion is to take place under Building Permit 359 is part of an
illegally subdivided larger parcel. Such larger -parcel and
the illegal subdivisions known as "Lot 1" and "Lot 2" are
shown on a plan entitled "Plan of Land in Salem, Mass. ,
Property of 18 Summer Street Realty Trust" Plan Book 179 ,
Plan 76, recorded at the Essex South District Registry of
Deeds (a copy of which is attached hereto and incorporated by
reference as Appendix Z) . The decision of the Planning Board
erroneously endorsing said plan was filed with the City
Clerk' s office on or about July 26, 1983. Such endorsement
is illegal because said plan purports to created two lots
neither of which have 100 feet of frontage width or 25, 000
;; feet of area as required for an R-3 District under the Zoning
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Ordinance of the City of Salem. Therefore such subdivision
is illegal and the decision of the Planning Board endorsing
such plan is voidable. Building on such illegal lots is
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impermissible.
j WHEREFORE, your petitioners respectfully say that permit
number 359 as issued on or about July 29 , 1983 is in viola-
tion of law.
js WHEREFORE, your petitioners respectfully demand that the
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!' Board of Appeals of the City of Salem revoke and negate per-
mit number 359 issued on or about July 29, 1983, and that such
Board take such further and additional action or relief as
necessary to rectify the illegality associated with the
issuance of such permit and to establish conformity with the
law.
RESPECTFULLY S BTMT D,
F. Timey, squire
Robert I.' Kalis, Esquire
Tierney, Kalis & Adamopoulos
133 Washington Street
Salem, Massachusetts 01970
( 617) 741-0862
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'84 JUN
�;- -
DECISION ON THE PETITION OF JOHN & JOAN KELLEY (PEtlI TONERS)
REQUESTING THE BOARD OF APPEALS TO ENFORCE THE ZONING ORDINANCE
FOR 18 SUMMER ST.
A hearing on this petition was held May 23, 1984 with the following Board Members
present: James Hacker, Chairman; Messrs. , Charnas, Luzinski, Strout and Associate
Member Bencal. Notice of the hearing was sent to abutters and others and notices
of the hearing were properly published in the Salem Evening News in accordance
with Massachusetts General Laws Chapter 40A.
Petitioners request that the Board enforce the Section of the Zoning Ordinance
Section V, regarding allegedly improper use of the premises in question as
professional offices in an allegedly R-3 zone.
After hearing the evidence presented at the hearing, the Board makes the
following findings of fact:
1 . At all times relevant to the petition, the premises in
question was in a B-3 zone.
Based on that finding the Board concludes that the premises at 18 Summer Street
may, under the terms of .the Ordinance, be used by the current occupant as
professional offices.
Therefore, the Zoning Board of Appeal voted unanimously to deny the petitioner's.
request.
41 ,a
Scott E. Charnas, Secretary
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK
APPEAL FRO.9:7 THIS DEC!SIO;I, IF !.i!Y, SHf 1- EE `1.0.DE PURSUANT TO SECTION 17 OF THE id ASS.
C:i/.PTER E03. Ai'7D SHALL BE cp FD :i:TtIIN 20 DAYS.AFT:R THE DATE OF FIIIN(S
CF I'r5 LiS7•, IN Tr 01 ICE OF T .E CITY CLERK.
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Or d:CG'2o .,R IS REGORDLJ A"D 1�D E. GN Td[ 0,R1'R'S CERTIF11AIE OF TITLE.
BOARD OF APPEAL -
Titu of �5ttIPm,
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� iarc�� '83 DEC 14 r14 :04
CITY rLE MICE
DECISION ON AN APPEAL BY JOHN AND JOHN KELLEY
REGARDING 18 SUMMER STREET
A hearing on this petition was held November 30, 1983 with the following
Board Members present: James Hacker, Chairman; Messrs., Charnas, Hopper,
Luzinski and Associate Member Bencal. Notice of said hearing was sent to
abutters and others and notices of the hearing were properly published in '
the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A.
Petitioners is requesting an appeal of a building permit issued to Richard
Pohl, owner of "18 Summer St. (R-3)
After diligent deliberation and after consultation with the City Solicitor, the
Board of Appeal decision is as follows:
The Building Inspector has acted properly and correctly issued Permit #359, after
consulting the map in. the City Clerk's office.
Decision to deny.
_ James B Hacker, Chairman
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK
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OF RECORD OR U RECORDED AND NOTEO ON
HE Ci'/,iEnS fEnir
BOARD OF AFP=AL -
R1C+AARD 4V.STAFFORD CITY OF SALEM 2 L2 m, MARY P. HARRINGTON
CITY SOLICITOR ASSISTANT CITY SOLICITOR
93 WASHINGTON STREET A4A$SACHUSETTS �r�i �.�
SALEtit.MA 01970 CITY;jF:;t Lf t,' i'„5�. 93 WASHINGTON STREET
SALEM.AIA 01970 -
745--.311
745-0311
July 18, 1983
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Mr. Richard T_ McIntosh
Zoning Enforcement Officer
Qne .Salem Green -
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Salm, 01970 is =
Dear Mr_ McIntosh,
You have requested an opinion regarding the.zoning status of a 'portion
of the Westerly side of Sumner Street. You have suggested, based upon your
research that the Ixea in question is R-3 in that no zoning ordinance has
been adopted c nngir:g the district from, the original 1955 zoning sap. I
am of the opinion that based noon the official zoning ordinance and zoning
MIP that the area in question is a B-3 district.
"Section III. B. zoning Mp-p." of the City of Salem, Zoning Ordinance
states:
"Said districts are located and bounded as shown on the inapt entitled
"zoning Map, City of Salem", adopted August 27, 1955, and as ameeided
September 2, 1969, August 1, 1972, December 3, 1974, September 15, 1976,
November 9, 1376, and-May 20, 1977, and on file in the office of the City
Clerk_ ab�- zoning }gip, with all explanatory matter thereon, is hereby
wade a part of this Ordinance.
If, in accordance with the provisions of this ordinance and the General
laws, Chapter 4--0A, amendments are approved by the City Council which
involve changes in district boundaries or other matter portrayed or the
Ironing ,flap, such changes shall be made promptly on the Zoning Map.
Regardless of the existence of purported copies of the Zoning ?tap which
may be made or published from time to time, the Zoning Map on file in
the office of the City Clerk shall be the final authority on the current
zoning status of lzr_d and water areas, buildings, and other structures
In the.City."
1.
Based upon the ended Ironing Map, i3tich is incorporated by reference.:in
the ordinance, and v'hich is expressly granted superiority in the event of any
conflict with anv other provision of the ordinance, I conclude that the land
in question is presently zoned B-3 and that if a business use is commenced
(Cont'd) _ .
Mr. Richard T. McIntosh July 18, 1983
at the premises prior to amending the official zoning map then suchuse would
constitute a nonconforming use.
Very truly yours,
IgIA-
RMHAOD IV.
City Solicitor
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�49rprtntrnt
Richard T. McIntosh
one Salem Green
745-0213
June 22, 1983
Richard Stafford $
City Solicitor
RE: Zoning status on westerly side
of Summer Street
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Dear Richard:
May- Z have a written legal opinion regarding the above referenced
properties. The area oatlined in red on the enclosed Zoning Map Section
was changed by amendn-ent. (copy enclosed)
My, determination is that the westerly side of Summer Street, outlined
in green, is zoned R-3 `-n that it was never changed from the original 196
adopted City Zoning Vmo.
My question is, are there any legal requirements that would indicate
anything to contrary?
Unfortunately the amended Zoning Map was not adopted by the City Council.
If it had been, the area in question would probably be B-3, right?
Than'.c you for any light you may be able to shed on this situation.
Very truly yours,
! 1
Richard T. McIntosh
Zoning Enforcement Officer
RTM:bms
Enclosure
J GOM OIi�.
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e,<O/y N ooN�
RICHARD W.STAFFORD CITY OF SALEM MARY P. HARRINGTON
CITY SOLICITOR MASSACHUSETTS ASSISTANT CITY SOLICITOR
93 WASHINGTON STREET 93 WASHINGTON STREET
SALEM,MA 01970 SALEM,MA 01970
745.4311 745-4311
- November 30, 1983
Mr. James Hacker, Chairman
Salem Board of Appeals
One Salem Green
Salem, Massachusetts 01970
Re: Petition of Kelly, John and Joan
18 Summer Street, Salem, Massachusetts
Dear Mr_ Hacker:
The Board has requested an opinion regarding any change that I may
have made in an opinion which I rendered at the request of the Building
Inspector concerning the applicable zoning of the above captioned property
on July 18, 1983. That opinion was rendered based upon my personal discussion
with the City Clerk regarding the City of Salem Zoning Map. I have made no
change in that opinion nor do I consider any change to be required in light
of the facts cited in my earlier opinion, or any subsequent circumstances.
Mr. McIntosh has also recently referred to me a letter from Attorney
JohnTierney, counsel for the petitioners, stating that the statutory period
within which the Board must render a decision has lapsed. If the petitioners
have complied with the filing and transmittal requirements of the statute,
then the ninety (90) day period has indeed lapsed, unless the petitioners
have waived their rights regarding this requirement.
If the time for making a decision has expired, the statute provides
that the relief sought is constrictively granted.
Nevertheless, even if the relief is deemed granted, the Board should
vote on the petition and file its decision, with reasons of course, promptly
with the City Clerk since the question of this time for an appeal by an
"aggrieved party" in the event of the "constructive grant" of a Detition
heard pursuant to section 15 is not clear at the present time. Present case
law seems to indicate that a standard of reasonableness may be adopted in
the absence of any express statutory language dealing with this issue.
If the Board wishes to have any additional imput from this office,
please let me know.
W
r-'y
RICHARD W. STAFFORD, Q.
City Solicitor
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Puilbirts pepartmerd
Richard T. McIntosh
One Salem Green
745-0213 April 6,1984
John & Joan Kelly
3 Cambridge Street Re: 18 Summer St.
Salem,Ma 01970
Dear Mr, & Mrs. Kelly:
In answer to your letter of March 19,1984.
Please be advised that the use of 18 Summer for a
professional office, is determined to be a non conforming use.
The City Legal Department having determined that the locus
was a B-3 Zoned District, at the time the office was occupied.
The current Zoning Map, indicates that the locus is now in
a R-3 Zoned District, which would prohibit professional office use.
The carriage house is occupied as a Single Family Dwelling and
I am informed is used for residential purposes only.
V,exy truly yours,
Richard T. McIntosh
RTM:mo' s Zoning Enforcement Officer