37 UNION STREET - ZBA 37 Union St. R-2
Paul Carr, Emcee Realty
Investment Trust
d
2 �
g (fity of Salem, 'Massachusetts
OCT
September 30, 1986 FILE 0
CITY
Mrs. Josephine Fusco
City Clerk
Dear Mrs. Fusco:
Please be advised that the petition of Paul Carr for a
Variance for 37 Union St. was withdrawn. Said petition was
withdrl3awn prior to the hearing so no vote was taken.
Sincerely,
QJames B. Hacker
Chairman
JBH:bms
y�.CONy>1�y
i 0
r
MICHAEL E. O'BRIEN B LEONARD F. FEMINO
CITY SOLICITOR %. g - ASSISTANT CITY SOLICITOR
93 WASHINGTON STREET �° 93 WASHINGTON STREET
and and
81 WASHINGTON STREET CITY OF SALEM ONE BROADWAY -
SALEM, MA 01970 MASSACHUSETTS - BEVERLY, MA 01915 _
745-4311 - 745.4311
744.3363 _ 921.1990
Please Reply to 81 Washington Street Please Reply to One Broadway
September 10 ; 1986
James B. Hacker, Chairman
Salem Board of Appeal
One Salem Green
Salem, Massachusetts 01970
Re : Maguire v Hacker
Essex County Superior Court #86-402
Dear Mr. Hacker:
In response to your inquiry regarding the above matter,
please be advised_ I have reviewed the Judgment, Memorandum
and Order in the above matter. It is my opinion that the
Judgment operates as a grant of a variance from the set back
requirements of the Zoning Ordinance and there is no need for
the Board to grant a variance. However, it is further my opin-
ion that the Board may impose such conditions, safeguards and
limitations as it deems proper on the use of the property as
a -two-family dwelling The courts have upheld requirements
such as parking, buffer areas and building location to be
proper matters of concern upon the grant of a variance.
If you desire additional information, . please feel free
to contact me.
V y ruly You ,
J
Alii, hae 1 E. O' Brien
City Solicitor
MEO/jp
cc: Cris Drucas, Esq.
c
y
9 6
CON
e
MICHAEL E. O'BRIEN o - LEONARD F. FEMINO
CITY SOLICITORA'. xnc°pP�g ASSISTANT CITY SOLICITOR
93 WASHINGTON STREET `° - 93 WASHINGTON STREET
and and
81 WASHINGTON STREET CITY OF SALEM ONE BROADWAY
SALEM, MA01970 MASSACHUSETTS BEVERLY, MA01915,
745-4311 745.4311 -
744.3363 921.1990
Please Reply to 81 Washington Street . . Please.Reply to One Broadway
September 15 , 1986 ,
James B. Hacker, Chairman .
Salem Board of Appeal
One Salem Green
Salem, Massachusetts, 01970
Re: Maguire vs Hacker, et al
Essex County Superior Court #86-402
Dear Mr. . Hacker :
As a follow-up to my letter of September 10 , 198611 am
. enclosing copies of correspondence between Attorney Drucas and
the Judge who handled the above case: As you can see from Judge
Flannery' s comments , the Board does not have to grant a variance.
..However, if the petitioner wishes a formal grant from the Board
for title purposes, the Board should formally grant a variance;
but only if the petitioner requests the same. I believe the Judge ' s
comments regarding conditions are self-explanatory and the Board
.may impose conditions as it deems them necessary as outlined -in
my letter of September 10 , 1986 .
y re y ruly yours;,
c ael E. O' Br '�
City Solicitor
MEO/jp
Enclosures
('ITHIS I)RU 'AS
ATTORNEY AT LAW
CHURCH
�:V.1•:Vo>LSTREET
0111:0
VIN
AREA CCDE E l
. - 145.0500
. September 10 , 1986
.J . Harold Flannery , Justice.
Norfolk Superior Court
650 High Street
Dedham, MA 02026
Re: Summary Judgment
Memorandum and Order
Maguire v . Hacker , et al .
C .A . No . 86-402
Dear Judge Flannery:
I am writing this letter to you on behalf of my client,
Robert M. Maguire, on whose behalf you entered Judgment in
favor of the. plaintiff on his Motion for Summary Judgment on
August 26 , 1986 , while you were sitting in Essex County
Superior Court .Motion . Session. I have enclosed herewith a copy
ofyourMemorandum and Order and the Notice of Summary Judgment
sent out .by Mr . Nutting, the Assistant Clerk .
There appears to be some confusion with reference to the
City of Salem .and their position with reference to your
Judgment . The City of Salem has -taken the position that this
matter must go back before the Board of Appeals , and , in fact,
have notified us to appear before the Board of Appeals on
'September 17 , 1986 for further review. In speaking with the
Salem Building - Inspector , -there is a question in his mind as to
whether or not the variance has been granted by your Order . He
has stated that whether the variance has been granted or not,
the matter must go back before the Board of Appeals so that the
Board cad impose conditions on the variance .
I have raised this matterwith the City Solicitor , `
Michael O 'Brien, and it is his position that the Order for
Summary Judgment is not clear , although he believes that your
Order grants the' variances
Secondly, the Building Inspector and City Solicitor
believe the Order which you entered is not clear 'as the second .
sentence requires that the matter be brought back before the
Board of Appeals .
i
-2-
it is my interpretation that your Order , with reference
to the imposition of conditions , safeguards and limitations ,
deals only with use of the property as permitted : in the
appropriate zoning district. Any uses which are not
appropriate to the district in which the property is located
are . subject to the imposition of "conditions , safeguards and
limitations " .
Therefore , it is my belief .that , provided we are only
using the structure for a two-family dwelling, that no other
use .will be made of the structure as the locus is in a district
which allows for two=family dwellings as a permitted use . .that
there 'is no reason to go back before the Board of Appeals .
Finally, as this Order has to be filed in the Registry
of Deeds in order to estabish the granting of the variance , it
must be clear to Title Examiners that the variance was granted
based upon the plans submitted . Mr . Hacker of the Board of
Appeals has stated to me that the Order , in his opinion, does
not clearly state that to be the case and believes that the
Board of Appeals has. the right .to order that fences be put up,
parking arrangements be changed or any other restrictions
imposed that the Board feels are appropriate and that an
additional Hearing by the Board would clarify the status of the
variance for a Title Examiner .
Accordingly , any instruction or correspondence from you
would be extremely helpful in this matter as for whatever
reas.on . the Board of Appeals of the City of Salem seems to me to
be acting contrary to the law and your Decision. Any assitance
would be greatly appreciated and I thank you for your
anticipated cooperation.,
R pect ly,
hr is cas
CD/dkm
enclosure
cc: Michael O 'Brien,/
Robert M. Maguire
COMMONWEALTH OF MASSACHUSETTS
0� THE SUPERIOR COURT
DEDHAM. MA 02028
September' 11, 19H
Cn .c': S- reet
y 'C = 1c•70
3e : Maguire v. Hacker
(C. A . No. ,. S 0 Essex Superior Gcurt )
Lear I:r. _,.utas : .
.s corer to ur leiter to me o_' September 1G ,
concerning :n ' Memorandum and C^der., of AuSust 25 and `he Crder
:.wast 27 ,' 19°0 , in the above matter .
-:e r;laintiff is entitled to the variance he seeks .ar,d
nl reference to the oermit granting authority ' s impo iti'on of
"conditions , safeguards and limitations" is based on the second
oara-aph of c . 40A, §10 . Nothing in my Memorandum requires the
Board to impose any conditions ; nor need the matter go before the
Board again , except perhaps for .the formality of issuing the
Order unless the Board decides
in com lianbe with my ,
variancep
to impose conditions , in which event the plaintiff may wish to
be heard there .
I trust that the foregoing information is responsive to
your inquiry . However, I must point out that correspondence
between one party and the. Court is not a satisfactory way of
seeking clarification (or anything else ) in this matter. If
anything further is required, move formally for it with notice
to the defendants .
Please transmit a copy of this letter to the City Solicitor.
Very truly yours ,
arold Flannery
ustice of the Superior .Court
JHF: cfn
cc : Donald E. Nutting, Superior Court Clerk