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55 TURNER STREET - ZBA (2) - ` ����e�� , ������ f -_ __ - - J �: �� ° �o� \ � Legal Notice CITY OF.SALEM BOARD OF APPEAL I J 7459595 EXL 381 Will hold a public hearing for all per- sons interested in the petition submit- ted by DANIEL & JACQUELYN t! ROBINSON requesting a Variance from side setback to construct a deck for the property located at 55 TURNER 'f .STREET R-2 Said hearing to be held it WEDNESDAY,MAY 17,2006 AT @:30 P.M., 120 WASHINGTON.STREET y 3RD FLOOR,ROOM 313. Nina Cohen, t Chairman 05/03,05/10/2006 9p LL is adwr CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL 120 WASHINGTON STREET, 3RD FLOOR + ' SALEM, MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 FAX: 978-740-9846 KIMBERLEY DRISCOLL C- MAYOR DECISION OF THE PETITION ODANIEL & JACQULYN ROBINSON REQUESTINA SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 55 TURNER STREET R-2 �; A hearing on this petition was held August 16, 2006 meeting with the following Board CP �? Members were present: Robin Stein, Bonnie Belair, Annie Harris, Beth Debski and y Stephen Pinto.. Notice of the hearing was sent to abutters and others and notices of the 9 hearing were properly published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. CO At the request of the Petitioner, the Salem Board of Appeal voted 5-0, to grant leave to withdraw this petition without prejudice for a Variance from side setback to construct a deck for the property located at 55 Turner Street R-2. GRANTED LEAVE TO WITHDRAW WITHOUT PREJUDICE AUGUST 16, 2006 Robin Stein C'�) Board of Appea A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certification of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of Title. Board of Appeal l 3 - 55 7��� 0✓ sct?�— AMERICAN ARBITRATION ASSOCIATION Case No. 11-183-E-02415-05 STEPHEN AND SARAH DAVIS, Claimants and Respondents in Counterclaim And DR. DANIEL AND JACQUELINE ROBINSON,Respondents and Counterclaimants ORDER After a hearing on June 13, 2006, which included by agreement of the parties a site visit and submission of twenty-five(25)agreed exhibits, I hereby find and ORDER as follows: THE PARTIES I. Claimants, Stephen Davis and Sarah Davis, own and reside at 53 Turner Street, Salem, Massachusetts. Respondents, Dr, Daniel Robinson and Jacqueline Robinson, own and reside at 55 Turner Street, Salem, Massachusetts, 53 and 55 Turner Street ate each of two units in a two-unit Condominium known as the Turner Street Townhouses Condominium(the"Condominium"), The beneficial interest in the Condominium is evenly divided, 50-50,between the ownership of 53 Turner Street and 55 Tumor Street. STATEMENT OF THE CLAIMS AND FINDINGS OF FAC 2, Claimants, Stephen Davis and Sarah Davis, claim that the Respondents have constructed decks and stairways that are attached to the sides of the condominium and clearly in common and exclusive use areas. Such construction was done without Page 1 of 6 Ju �c �q06 'o• e - tic � nice n,i Trustee authorization or approval and in violation of the Turner Street Town Houses Condominium Trust. 3. Daniel and Jacqueline Robinson state in response that the attorney who drafted the condominium documents advised the Robinsons that they could legally proceed with their planned construction; that despite being informed of the Robinsons' intentions well in advance of their actual performance of the work, the Davis' never objected to the work until it was well under way and near completion; and throughout the entire period of their occupancy, up until the present controversy erupted, neither party has ever respected the formalities of the condominium documents or the requirements of condominium law. 4• The Robinsons request in their claim that condorniwum formalities be followed and that a fence erected by the Davis, be removed. FINDINGS OF FACT AND CONCLIJ IONS The parties own units in a condominium established pursuant to Chapter 183A of the General Laws and a Master Deed and Declaration of Trust(the"Condominium Documents,"which term shall include the Rules and Regulations of the Turner Street Town Houses Condominium Trust), Although the parties have in the past chosen not to comply with the letter of a number of the requirements of Chapter 183A and the Condominium Documents, as well as many of the operational procedures well- established in Massachusetts and elsewhere, their homes nonetheless remain subject to Chapter 183A and the Condominium Documents. The requirements and structure so established remain the standard to govem conduct in the event of dispute. Chapter 183A by its overall structure and the specific provisions of Sections 5 and ]0 vest in the trustees of a condominium the authority to manage the common area and Page 2 of 6 JUL 25 2006 18;74 _F /b 'J 01KL Inu S facilities. Likewise, the Declaration of Trust at Articles 1I, III, and V(in particular, Article 5 (1) (j)) vest in the Trustees the authority to manage the common areas and facilities. (See also Rules 4, 7 and 11 of the Condominium Rules and Regulations). This includes,without limitation, the limited common areas. Although the Robinsons have identified Article V, Section 4(B) of the Declaration of Trust, this provision requires in the first instance that the Trustees vote to authorize work to the common elements and facilities. Here, the partially-completed construction by the Robinsons of the stairs and landing along the exterior wall intended to connect the Robinson's second floor outdoor balcony to the ground was not approved by a majority of the condominium Trustees. There are only two Trustees of this Condominium requiring unanimity for work to proceed to the common elements and facilities, however, there was no Trustee vote, approval or unanimity to proceed with construction of the new enlarged back yard, raised deck(or "patio" as it was referred to at the heating), landing and staircase. Allsuch construction was to the common elements. The exterior wall of the condominium building being a part of the common facilities of the Condominium. The construction was therefore unauthorized and in violation of Chapter 183A and the Condominium Documents. The Robinsons did not seek a formal vote of the Trustees, but proceeded informally as had been the habit of the unit owners. The Davis'expressed concerns about the Robinsons' proposed project and then objected to the new work fairly promptly. The Robinsons had notice of these concerns and objections prior to commencing the work. The above work proposed by the Robinsons proceeded far differently than other, albeit smaller, projects undertaken by the parties previously. For,instance, the Davis' constructed a wooden fence enclosing their exclusive use yard area and the Robinsons Page 3 of 6 JUL 25 2006 ta:ie ----_F/: 'a_ QIKK 'nu (%7125/2006 17:28 FA_Y HOLLAND & KNIGHT X005/007 0 undertook some landscaping. These projects proceeded with the apparent agreement of both Trustees. ORDER AS TO CLAIMS BY APPLICANTS DAVIS 1. The Robinsons are ordered to remove this construction, and to repair and restore the exterior wall and the siding of the building to the same condition they were in before the Robinsons began this work, all to be completed within one hundred and twenty (120)days of the date of this Order, 2. The backyard area behind the Robinson Unit, of which the Robinsons have exclusive use under the Master Deed of the Condominium, is also part of the common facilities of the Condominium, The Robinsons are ordered to remove this construction, and to repair any damage done during the construction to the exterior walls and any other Portion of the common facilities of the Condominium, all to be completed within one hundred and twenty(120) days of the date of this Order. The Robinsons may, at their own expense, re-install the smaller rear patio as previously existed to the same dimensions as shown on the Condominium plans of record or may install a larger patio in the limited common area so long as it is not raised more than six (6)inches above ground such that any new deck or patio does not provide an elevated perch from which to look down into the Davis' backyard (unless the Trustees vote otherwise), 3• The Trustees shall obtain an independent inspection from either the original developer or another qualified contractor, stating that the removal, repairs and restoration under paragraphs (1) and(2) are complete and of good quality workmanship and construction, which inspection expense shall be treated as a common expense and paid by the condominium association. 4• If the Robinsons fail to comply with this Order, the Trustees and their Page 4 of 6 JUL ?5 Pg06 +�� +� �v .uy•N R ,V\1 VIII VJUUU/VU• agents are authorized to perform the removals,repairs and restorations required by paragraphs (1) and (2) of this Order,in which case the Robinsons shall be liable to reimburse the Trustees for all costs that the Trustees may incur in doing so, including any court costs and reasonable attorney's fees that the Trustees incur in carrying out and enforcing this Order, and in collecting such reimbursement from the Robinsons; provided, however,before proceeding hereunder the Trustees shall give ten(10) days notice to the Robinsons to provide the Robinson's an opportunity to cure. 5• The Trustees of the.Condominium, at present Stephen Davis and Daniel Robinson, are bound by this Order, and are ordered to cooperate with it, and to take any and all steps necessary to enforce this Order. 6. The applicable Hiles allow me to equitably apportion the cost of the arbitration,'and the parties have previously agreed that I may award reasonable attomey's fees. Because I find that all parties acted in good faith in a misunderstanding of the requirements of Massachusetts law and the Condominium Documents, l find it equitable for each party to pay their own attomeys fees and costs. ORDER AS TO COUNTERCLAIMS BY ROBINSON 1. For the reasons set forth above, I find that neither law nor equity require the fence to be removed, and order that this fence may be retained and maintained by the Davis' at their own sole expense. 2• l order that as unit owners and Trustees, the parties, and any successor in interest to the unit owners and Trustees, adhere to the provisions of the condominium and Chapter 183A by: a. holding an annual meeting of unit owners and elect officers of the condominium; Page 5 of 6 JiJI ;�4 7906 L // 'J 01 GG '/SAI o,%eaicuue 1/:2U PAA HOLLAND & xNIGHT 9007/007 b• establish an annual budget for operations of the condominium; C. levy monthly condominium fees to the unit owners to fund the budget; d. maintain books of account and records for the condominium; C. oPan and maintain a bank account for the funds of the condominium association; and f establishing and maintaining a reserve fund. I further order that this decision be recorded at the appropriate Registry of Deeds to serve as public notice of the findings on these issues, and to bind any successors in title or assigns of the parties hereto. Signed and Ordered as a final decision in accordance with the rules of the arbitration and applicable law on �1 v Z 57'— 20p6 Diane Rubin Arbitrator for the American Arbitration Association 7 • Z5--O(. Date /mow ' Diane Rubin I, Diane Rubin, Esq., do hereby affirm upon my oath as Arbitrator that I am the individual described in and who executed this instrument, which is my Award. Date ' Diane Rubin Page 6 of 6 JUL x �a06 ,o• ,c -- � i� � mitt •�,� D STEPHEN AND STEPHANIE DAVIS Administrative Fees and Expenses: Filing Fees: $ 950.00 Case Service Fees: $ 300.00 Hearing Room Expenses: $ 0.00 AAA Heating Room $ 0.00 Rental: Your Share of Administrative Fees and Expenses: $ 1,250.00 Amounts Paid for Administrative Fees and Expenses: $ 950.00 Balance Administrative Fees and Expenses: $ 300.00 Neutral Compensation and ExnensSE Diane Rubin, Esq.: $ 800.00 Your Share of Neutral Compensation and Expenses: $ 400.00 Amounts Paid for Neutral Compensation and Expenses: $ 400.00 Balance Neutral Compensation and Expenses: $ 0.00 Party Balance: $ 300.00 file://C:\Documents and Settings\yellandp\Local Settings\Temp\CaseReport, 11-183-E-241... 7/25/2006 ��,�.� Sfl'�P / ,Uwn�latis e �D�G�'t7 �SS�z.''/<<�G� To: Nina Cohen Chairman, Salem Zoning Board of Appeals From: Daniel and Jacquelyn Robinson 55 Turner St. Salem, MA 01970 Re: Request to Remove Petition We would like to request that our petition for a zoning variance be withdrawn, without prejudice, due to the fact that the issues have been resolved through arbitration. Sincerely, �. Ii Daniel Robinson n l Jacquelyn Robins (J /, ` 3 CITY OF SALEM, NLXSS�ICHUSETTS �' BL'II.DINGDEPARTMENT \ a� 1_'0 WASHINGTON STREET, 3m FLOOR TEL (978) 745-9595 FAx(978) 740-9846 �D KIMBERLEY DRISCOLL MAYOR THoNus ST.PIERRE DIRECTOR OF PUBLIC PROPERTY/BUILDING CONMIISSIONER March 29, 20 Daniela..::, and Jacquelyn Robinson r ✓ 55 Turner Street Salem, Ma. 01970 RE: Permit#06-06 Dear Owners: This office just corrected the building permit for your property and sent you the corrected version. We had mistakenly issued the permit to 57 Turner Street. However, looking into this permit identified a zoning violation. The deck you have started is not 5 feet away from the property line. A variance from side yard setback will need to be applied for and approved before work can.continue. Until such time, work must stop. If you feel you are aggrieved by this ordinance, your appeal is to the Salem Zoning Board of Appeals. If you have any questions, please contact me directly. Sincerely, Thomas St. Pierre Building Commissioner cc: Mayors Office Councillor Veno, Ward 5 a