37 WALTER STREET - ZBA ,,-37 Walter St. R_2
John Suldenski (owner).
Peter R Mary Casale et al (Petitioners;
i!IILDING UE P T
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. S�ItcOFt�G�.�U&w '9I
C.A. 90-405
REC-PiFO
CITY OF S, LEiH,NASS.
JOHN J. SULDENSKI and )
VIRGINIA SULDENSKI )
VS. ) JUDGMENT
n n CA —
CITY OF SALEM BOARD OF APPEALS ) n ry o
N
The above entitled matter came on for jury waived trial
before the Court, Ronan, J. presiding, and after findings
of fact, conclusions and order having been rendered:
It is hereby ORDERED and ADJUDGED:
that the decision of the Board of Zoning Appeal of the
City of Salem be and hereby is AFFIRMED; and that the City
of Salem shall recover of the plaintiffs its costs of action.
The Clerk/Magistrate of the Superior Court is hereby
directed to mail within thirty days of this date an attested
copy of this judgment to the building inspector of the City
of Salem and to the City Clerk for the City of Salem --and the
Board of Appeals .
Dated at Newburyport, Massachusetts this 20th day of June, 1991 .
7
Assistant Clerk'
t.
A True Copy,
Attest:
isfan t 1e k
S �
CITY OF SALEM - MASSACHUSETTS
KEVIN T.DALY Legal Department LEONARD F. FEMINO
City Solicitor 93 Washington Street Assistant City Solicitor
508-745-0500 Salem,Massachusetts 01970 508-921-1990
October 22, 1990
City of Salem
Board of Appeals
One Salem Green
Salem, MA 01970
RE: Suldenski v. Board of Appeals, et al.
Dear Board Members:
Relative to the above-named matter, please be advised
that Judge Ronan has denied Mr. SuldenskiIs motion for.
summary judgment. The case will now continue through its
various stages toward resolution. I will keep you informed
of any progress.
Thank you for your attention.
Very truly yours,
Kevin T. Daly
KTD/ask
}
CITY OF SALEM - MASSACHUSETTS
KEVIN T. DALY Legal Department LEONARD F. FEMINO
City Solicitor 93 Washington Street Assistant City Solicitor
508-745-SSW Salem, Massachusetts 01970 508-921-1990
March 7 , 1990
U
Board of Appeal
City of Salem -
One Salem Green _
Salem, MA 01970 -
ATTENTION: James M . Fleming, Chairman
RE: Suldenski et al . v. Board of Appeals , _et al .
Dear Mr. Chairman :
Relative to the above-named matter, please find enclosed copies of
my answer and counterclaim as well as my appearance for all defendants
in the above-named matter .
Thank you for your attention to this matter .
Very truly yours ,
KEIN T. DAL
CITY SOLICITOR
KTD/rmj
Enclosures
COMnONWEALTH OF MASSACHUSETTS
ESSEX, SS . TRIAL COURT
SUPERIOR COURT DEPARTMENT
CIVIL NO. 90-405
+
JOHN J . SULDENSKI and
VIRGINIA A . SULDENSKI ,
Plaintiffs
* ANSWER-OF-THE-DEFENDANTS
Vs . * TO PLAINTIFF ' S COMPLAINT
------------------------
+ AND COUNTERCLAIM
CITY OF SALEM
BOARD OF APPEALS, ET AL . ,
Defendants
*
+ + + + + + + + + + + + + + + + +
Now come the defendants and answer plaintiffs ' complaint as
follows :
1 . Defendants admit as to the facts only as stated in
Paragraph 1 of plaintiffs ' complaint .
2 . Defendants admit Paragraph 2 of plaintiffs ' complaint .
3 . Defendants admit Paragraph �3 of plaintiffs ' complaint .
4 . Defendants admit Paragraph 4 of plaintiffs ' complaint .
5 . Defendants admit in part and deny in part Paragraph 5 of
plaintiffs ' complaint .
6 . Defendants admit Paragraph 6 of plaintiffs ' complaint only
insofar as Peter and Mary Casale were two of twenty
petitioners .
7 . Defendants admit Paragraph 7 of plaintiffs ' complaint .
i
8 . Defendants deny Paragraph 8of plaintiffs ' complaint.
9 . Defendants deny Paragraph 9 of plaintiffs ' complaint .
10 . Defendants deny Paragraph 10 of plaintiffs ' complaint .
11 . Defendants deny Paragraph 11 of plaintiffs ' complaint .
12 . Defendants deny Paragraph 12 of plaintiffs ' complaint .
13 . Defendants deny Paragraph 13 of plaintiffs ' complaint .
- 1 -
14 . Defendants deny Paragraph 14 of plaintiffs ' complaint .
15 . Defendants deny Paragraph 15 of plaintiffs ' complaint .
16 . Defendants deny Paragraph 16 of plaintiffs ' complaint .
AFFIRMATIVE-DEFENSES
----------- ---- -
17 . Plaintiffs have failed to state a claim upon which relief can
be granted .
18 . Plaintiffs ' complaint is invalid as plaintiffs failed to
assert their claim within the applicable statute of
limitations .
19 . If in fact plaintiffs have sustained any damage, they have
done so as a result of their assumption of risk and own
contributory negligence .
20 . Plaintiffs are estopped from asserting their claim as their
prior request for a special permit was denied by the City of
Salem Board of Appeal on February 22 , 1989 and plaintiffs
took no appeal therefrom but instead elected to build at
their own peril .
WHEREFORE, defendants pray that plaintiffs ' complaint be
dismissed and that judgment be entered for the defendants .
COUNTERCLAIM
21 . On or about March 8 , 1989 , by way of a written decision the
City of Salem Board of Appeal denied the plaintiffs '
petition for a special permit to build the structure in
question . -
22 . The plaintiffs did not appeal said decision of .the Board of
Appeal .
23 . Without a special permit or permission from the Board of
Appeal , the plaintiffs unlawfully erected the structure in
question .
24 . The plaintiffs knowingly violated the City of Salem Zoning
By-Laws and therefore have unclean hands in equity .
WHEREFORE defendants demand that :
1 ) Plaintiffs ' complaint be dismissed and judgment
enter for the defendants ;
2 ) Judgment enter for the defendants on the
counterclaim and plaintiffs be ordered to demolish
the struction in question; and
2 -
i
3 ) The Court order such other relief as it deems
just .
City of Salem
Board of Appeals, et al .
By their attorney,
Dated : M_arch__5 , _1990_
------------------------------
KEVIN T. DALY, CITY SOLICITOR
DALY & DALY
One Church Street
Salem, MA 01970
Telephone No. ( 508 ) 745-0500
CERTIFICATE-OF-SERVICE
I, Kevin T. Daly, attorney for the defendants , hereby
certify that on this date I served the foregoing ANSWER OF THE
DEFENDANTS TO PLAINTIFFS ' COMPLAINT upon the plaintiffs by
depositing a copy hereof in the U. S . mail , postage pre-paid,
addressed to : David W. Rifkin, Esquire, RIFKIN LAW OFFICES, 60
Federal Street , Salem, MA 01970 .
i
Dated : M_arch_5, _1990_
----------------------------
KEVIN T. DALY, CITY SOLICITOR
DALY & DALY
One Church Street
Salem, MA 01970
_ Telephone No . ( 508 ) 745-0500
i
iif
II I
I�
3 -
COMMONWEALTH OF MASSACHUSETTS
ESSEX,ss. SUPERIOR COURT
CIVIL ACTION
No. 90-405
JOHN J. SULDENSKI , ET AL. Plaintiff(s)
O.
ET AL.
CITY OF SALEM BOARD OF APPEALS Defendant(s)
NOTICE OF APPEARANCE
To the Clerk of the Above Named Court.
Please enter my appearance at attorney for ALL DEFENDANTS
in the above entitled case.
Dated: February 9, 1990.
Attorney for All Defendants
Address: One Church Street
a em, MA Uilj /U
Tel. No. ( 508 ) 745-0500
t
ofttlem, Cttssttt�juseftsJa� b ` +
�pFila d 'JAIJ}TPI l
.:QTY ..
DECISION ON THE PETITION OF PETER & MARY CASALE ET AL REQUESTING AN
ADMINISTRATIVE RULING RELATIVE TO A BUILDING PERMIT (#498-89) ISSUED
BY THE BUILDING INSPECTOR FOR AN ADDITION AT 37 WALTER STREET (R-2)
A hearing on this petition was held January 17, 1990 with the following Board
Members present: James Fleming, Chairman; Richard A. Bencal , Vice Chairman;
Edward Luzinski , Richard Febonio and Associate Member Peter Dore. 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, Mr. & Mrs. Casale,are immediate abutters to the property at 37
Walter Street (John Suldenski , Owner) and are requesting an Administrative
Ruling relative to a Building Permit (#498-89) issued by the Building Inspector
for an addition to the dwelling which is located in an R-2 zone.
The Board of Appeal first considered a request by Mr. John Suldenski , the owner
of 37 Walter Street, for a continuance of the petition. The Board vote 4-1
(Mr. Febonior in favor) against allowing the request for continuance, and thus
to hear the petition this evening.
The Board of Appeal heard testimony from numerous neighbors, abutters and others;
correspondence was also read into the record, in favor of the petitioners
request to overturn the Building Inspector's decision to grant the Building
Permit.
After hearing testimony by the petitioners, abutters, neighbors and others, the
Board of Appeal makes the following findings of fact:
1 . The property at 37 Walter Street contains two separate buildings on
this lot.
2. The building under construction has an entrance separate from the main
structure.
3. The building under construction is going to be serviced by a separate set
of utilities than the present dwelling unit.
4. The Board of Appeal denied this same plan on February 22, 1989.
5. The concept of a two family structure is not valid due to the fact that
there is not a common wall between the two units, nor are they under
one roof.
6. Since construction has began a neighbor has experienced water problems
in the basement.
7. Substantial opposition was presented by the neighbors, abutters and others.
1
f '
DECISION ON THE PETITION OF PETER & MARY CASALE ET AL FOR AN ADMINISTRATIVE
RULING RELATIVE TO A BUILDING PERMIT (7-498-89) ISSUED FOR AN ADDITION AT
37 WALTER STREET, SALEM
page two
On the basis of the above findings of fact, and on the evidence presented, the
Board of Appeal concludes as follows:
1 . The structure under construction in the rear of the lot of 37 Walter
St. is a substantial detriment to, and not in harmony with, the neighborhood
or the district in general .
2. To allow the structure to remain would substantially derogate from the
intent of the Ordinance.
Therefore, the Zoning Board of Appeal voted unanimously, 5-0 in faovr of the
motion made as follows:
That permit 7498-89 was issued in error; that it be revoked
forthwith and the structure be removed as soon as possible;
and that the Building Inspector take immediate action to have
said buildinq removed.
C�J
ichard A. Bencal , Vice Chairman
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK
Aopeal from this decision, if any, shall be made pursuant to section 17 of
t c f.!nss. General Laws, Chapter 89R, ono shall ._ ided within 20 day$
,-,f:rr th_ dotj of filing of this r;eziscn :•i :L:; olf:cc of ti:e City Clerk.
i'•.i ,u.'nt to Mass. Ceneral n I t, the Variance
r: �cnl Pcrmit nrar.ted h:':L i.i r:c t _...'.! a COPY Of the
the CC01f'.c.-.Lon :, :.•v P. tr.: 20 days have
ci:a--d and no appeal has L.en IiI:%J of n�. !, if s::ch appeal has been
f _J, that it h..s been dismisr.eu or ,,i k rrcrd^d in the South Esse%
Registry of Deeds and indexed under the rime .:ir e•e owner of record or.
is recorded and noted on the owner's Ccrtd:..:n: of T.tlO.
BOARD OF APPEAL
Citp of harem, ,lay mcbUOth;
*ublic Propertp Oepartment
Nuilbing Department
One balem green
745-9595 lxt. 380
William H. Munroe
Director of Public Property
Inspector of Buildings
Zoning Enforcement Officer
November 7, 1989
Mr. 6 Mrs Peter A. Casale
39 Walter Street
Salem, MA. 01970
RE: 37 Walter Street
Dear Mr. 6 Mrs. Casale,
This will acknowledge receipt of the letter drafted by you and your
neighbors regarding the building permit issued by this office for an addition
to property located at 37 Walter Street.
In response to your questions:
1 . Department records show the dwelling as a two (2) family residence.
2. The dwelling will continue to be a two (2) family dwelling when
completed.
It is the position of this department that this addition conforms to
the zoning changes recently approved by the Planning Board, City Council and
the Mayor and that with the absence of any Variance or Special Permit re—
quirements from the Zoning Board of Appeal that no notice to abutters was
required.
I can understand your feelings as long time residents, but this depart—
ment can only enforce the laws given to us and in this case there is no
violations at this time.
If you disagree with this opinion please be advised of your right to
appeal to the Zoning Board of Appeal.
Sincerely,
' ,
William H. Munroe
Inspector of buildings
WHMeaf
C.C. Mayor
City Solicitor
City Clerk
Ward Councillor
l
(IIV MIS
JOSEPH F COLLINS 3 f• C� S LEONARD F FEMINO
ASSISTANT CITY SOLICITOR T'.r -�' `T� ASSISTANT CITY SOLICITOR
93 WASHINGTON STREET 93 WASHINGTON STREET
AND CITY OF SALEM - MASSACHUSETTS AND
22 SO. MAIN STREET MICHAEL E. O•BRIEN ONE SCHOOL STREET
ToPSFIELD. MA 01983 CITY SOLICITOR BEVERLY. MA 01915
745-4311 93 WASHINGTON STREET 745-4311
887-6401 AND 921-1990
PLEASE REPLY TO 22 SO. MAIN STREET 81 WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET
SALEM, MA 01970
745-4311
744-3363
CO PLEASE REPLY TO 81 WASHINGTON STREET T
(7
n Q
n r c
v� December 5 , 1989 _r_ _,
rn
Wilam > Munroe, Building Inspector
liV
City4f Salem
One Salem Green
Salem, Massachusetts 01970
Re: 37 Walter Street, Salem
Dear Mr. Munroe:
As a follow-up to our meeting of December 4 , 1989 , please
be advised I have had an opportunity to review the recent
amendment of Section VIII D of the Zoning Ordinance as it
relates to the proposed enlargement and/or alteration of
the structure at the above location. As you are aware, an
amendment of Section VIII D 1 was adopted on September 18 ,
1989 . This amendment provides that non-conforming single
and two-family residential structures may be enlarged or
altered without the benefit of a special permit provided
the same can be accomplished in conformity with existing
density requirements excepting lot area and width.
In the instant case, the proposed enlargement and/or
alteration is essentially a new separate structure. while
admittedly it is attached to the existing structure by a
small breezeway, it is nevertheless, in my opinion, a separate
structure. It is further opinion that it was not the intent
of the recent ordinance change to allow for essentially an
additional structure to be constructed on a lot containing
a non-conforming residential structure. Rather, the intent
of the change was to allow for dormers, porches , additional
living space and the like.
Accordingly, it is my opinion that the proposed additional
structure at the above location violates Section VIII D of
the Zoning Ordinance unless a special permit is obtained
from the Board of Appeal pursuant to Section VIII F of the
same ordinance.
y truly ours ,
ichael E. O' Brien
City Solicitor
MEO/jp
cc: Mayor Salvo
Board of Appeal
f
JOSEPH F. COLLINS 3 'r, 'i 1 LEONARD F FEMINO
Tr _ J
ASSISTANT CITY SOLICITOR r �* ASSISTANT CITY SOLICITOR
93 WASHINGTON STREET •�
93 WASHINGTON STREET
AND CITY OF SALEM MASSACHUSETTS AND
22 SO. MAIN STREET MICHAEL E. O'BRIEN ONE SCHOOL STREET
TOPSFIELD. MA 01983 CITY SOLICITOR BEVERLY, MA 01915
745-4311 93 WASHINGTON STREET 745-4311
887-6401 AND 921-1990
PLEASE REPLY TO 22 SO. MAIN STREET 81 WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET
SALEM. MA 01970
745-4311
744-3363
PLEASE REPLY TO 81 WASHINGTON STREET
GO
J n
-JI r
l In r -
December S , 1989
n" N
S �
William ir- Munroe, Building Inspector ^
CityE�)f Salem H coo
One Salem Green
Salem, Massachusetts 01970
Re : 37 Walter Street, Salem
Dear Mr. Munroe :
As a follow-up to our meeting of December 4 , 1989 , please
be advised I have had an opportunity to review the recent
amendment of Section VIII D of the Zoning Ordinance as it
relates to the proposed enlargement and/or alteration of
the structure at the above location. As you are aware, an
amendment of Section VIZI D 1 was adopted on September 18 ,
1989 . This amendment provides that non-conforming single
and two-family residential structures may be enlarged or
altered without the benefit of a special permit provided
the same can be accomplished in conformity with existing
density requirements excepting lot area and width.
In the instant case, the proposed enlargement and/or
alteration is essentially a new separate structure. While
admittedly it is attached to the existing structure by a
small breezeway, it is nevertheless, in my opinion, a separate
structure. It is further opinion that it was not the intent
of the recent ordinance change to allow for essentially an
additional structure to be constructed on a lot containing
a non-conforming residential structure. Rather, the intent
of the change was to allow for dormers, porches , additional
living space and the like.
t _
2
Accordingly, it is my opinion that the proposed additional
structure at the above location violates Section VIII D of
the Zoning Ordinance unless a special permit is obtained
from the Board of Appeal pursuant to Section VIII F of the
same ordinance.
y truly ours ,
ichael E. O' Brien
City Solicitor
MEO/jp
cc: Mayor Salvo
Board of Appeal
i M" II Qli#j of tt1Pm, � ttsstttljuse##�1�F
CITY c;
peal
DECISION ON THE PETITION OF JOHN SOLDENSKI FOR A SPECIAL
PERMIT AT 37 WALTER ST. (R-2)
A hearing on this petition was held February 22, 1989 with the following Board
Members present: James Fleming, Chairman; Richard Bencal, Vice Chairman; Edward
Luzinski, Associate Members Dore and Labrecque. Notice of the hearing was sent
to abutters and others and notices of the hearing were property published in the
Salem Evening News in accordance with Massachusetts General Laws Chapter 40A.
Petitioner, owner of the property, is requesting a Special Permit to allow
construction of an addition on a nonconforming lot, said addition to be used
as an additional unit in this R-2 district.
The provision of the Salem Zoning Ordinance which is applicable to this request
for a Special Permit is Section V B 10, which provides as follows:
Notwithstanding anything to the contrary appearing in this Ordinance, the Board
of Appeal may, in accordance with the procedure and conditions set forth in
Section VIII F and IX D, grant Special Permits for alterations and reconstruction
of nonconforming structrues, and for changes, enlargement, extension or expansion
of nonconforming lots, land, structures, and uses, provided, however, that such
change, extension, enlargement or expansion shall not be substantially more
detrimental than the existing nonconforming use to the neighborhood.
In more general terms, this Baord is, when reviewing Special Permit requests,
guided by the rule that the Special Permit request may be granted upon a finding
by the Board that the grant of the Special PErmit will promote the public health,
safety, convenience and welfare of the City's inhabitants.
The Board of Appeal, after careful consideration of the evidence presented, and
after viewing the plans, makes the following findings of fact:
1 . Support as well as substantial opposition was presented;
2. The plan as presented would not be in harmony with the neighborhood;
3. An underground spring is present in the area and disruption of this could
cause problems to abutters and others;
4. The property has been in use as a single family since at least 1975;
5. The plan as presented would connect two buildings on one lot only
by a small deck and corner of the roof line.
DECISION ON THE PETITION OF JOHN SULDENSKI FOR A SPECIAL
PERMIT AT 37 WALTER ST. , SALEM
page two
On the basis of the above findings of fact, and on the evidence presented at
the hearing, the Board of Appeal concludes as follows:
1 . The relief requested cannot be granted without substantial detriment to
the public good and without nullifying or substantially derogating from the
intent of the district or the purpose of the Ordinance.
Therefore, the Zoning Board of Appeal voted unanimously, 5-0, against granting
the relief requested, the Special Permit is therefore denied.
DENIED )
Richard A. Bencal, Vice Chairman
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK
.'.'PEAL FRMI THIS DEUISION, IF A`;Y, SHALL BE MADE PURSUANT TO SECTION 17 OF TH.E
1ENERAL LAWS. �HAPIER S03. AND SHALL Ei Fi LED WITHIN 20 DAYS AFTER THE DATE OF F
!',IIS DECISION IP! THE O:F!CE OF THE CITY CLERK.
, TO •ASS. '7NERAi L'.:iS. CHAPTER 803. SECTI,,N 11, THE VARIANCE CR SPF."'S' r'"
INU: ED NEREIii. SHALL PIS; .E EFF-11T 'J9TiL A cD'Y f.F THE_:'.I$?'`l, 3'''•�":-
11It! .F THE CCl bL_R -I 'i' fS HA:"_ EL.P •:J .':) 1`i7 A'P.:=.L H".s _
„R THAT, IF S7CH AN APPEAL HAS S' N `LE. ''HAT IT r:.;i ucEN
RECORDED IN THE SCUIH ESSFI: REISTRY OF ;;E:.."e AND GIDE%ED :iNCER ')HE ::A 1E Ch TaE Cd7:_i
OF RECORD OR IS RECORDED AND NuTED D21 THE OWNER'S CERTIFICATE OF TITLE.
BOARD OF APPEM
Tonret-
ZvOU fop !i%�� -k I ✓I oe- > vr1 y-h-p—
7�7i s earl
l/
12Z P7
le wa/fig 3'f-
Q, r 4 » ySdAii' ..v v}` $"£'hu�'Y F 'i s fi rp .dam. '` ''-^,�
�♦ - m e r 1",_f rG'�f s'., A a+ •+ �i°q�4.g °els m A y a ,)
ti 6QARP� 9F APHALS
p.p txf / y� r SM }
e ., ..t. L aFp ! tp�-.�..�gntl [(� pffn11 x, 'A 3:..�a +° � r.'** s s :.`E {9 Gt../y�y S Tak'i•:'s 1,
�ie,I
Ap
q!�4-C�{ ,+ `,',y{+ 4 F_ p' ;'isih x
Of-..Y/kl�%MA`a�r, r ,q y
�/ x R✓ i } (/ n : Fir •`z e- 't ..Y Y A
x+1"t' cc 3 r'o " V 1 s )-v
t t r , r �J j"`r �t' t � r .'� ��y°y a„ � j� '} r w✓ {.:$..
to H0
IF
n Fs '�� tr r } .w^. ✓+`may`"' .. riy^(��i�'nU' ,�'t`fr .: k a^. '�§ `" �w .•c`�� �/}`�t,�/{//3J S_' ':
y w 3, t yam/ !� / /!J � t r x tYr a Y`�t�`
('m}.s:
Aw
�E S S,:_..:_"'(���x,... 3 7 M � C�tf�%/pi"✓�iy.. ��� l.-��O,:I ~ P t� .W/'�—..
s G' :'.t. i 'h' i, `d. v:'^} r .:' d.4 f >F``j • r r .. Yam d -t i '°�
'
INy� INA
me fit'{ ae m'kE . 4 R/ .F r a^2 az ✓ e .r
Th
x'^ rw10
JA1Aggk
�
° of
� �'g �Y—`iJ �/r/JCI:`� nR/�r�/!pp/v B�( RK�."I ! l✓/L.�rR � WNW�.I�� s� <..
tit +. t k^1'.c, ,y .� r S - `"�Kp,yr ���CiQ� { ✓f✓�Z�-+��r'r (r�'�{�%�� ^Y ,� ,"
writ
fl
4
WowAVG
y
"3 'fi' < `'S W tr A S4 '•, 44 +°r« � �a.�r°Ay}4°sk , kk ' ".t,v,/p`�,Fp^
>;,�, a� 4•' 4�`�� e'hy �w� ,, v1 ,:�.r� ra. FCM`"L'Vi� ��,�-'Y � �'u p i F=�'v�.Fh.�`'n
r,a
.v} ^. ». f t t, 'Sr:; ♦ 6 b e,::' x t �f a lav xp is
ORION,xt5r4xy T •,
.
r.r1'E'±sq.K y s�-v r.x . �.,. G: i.' e �F$'. ,•�, Yr r .s. y'f•
�„M`i•rfl:n�•�°+r� �.+ '� � ,r-._ S �_� t e r '' i r f r� t t x 4. ;c � ��a,.
,� Y ////'''(/�/a .':b ..ra r � i-�+Tlff�'� e ♦ f, ! tx� "'. re 5" .v.
'#f iTd% � � � A ,'s,' , r �' .�,✓/��y�<E#i. -T < +��� Y�a�t ,Q �' ��
F W /yam
an
,.a,r fN • {":.. qJ 'fr-t r. .a- + ,; ..r, c .,�Y� E !'4. r__ is $e+ :t aKk,
'� ^�"' ,a ` y'rr` •f ., .� � ..r -:,F # a � 7 -.'.� '1,� r �,. -idw )'
3 J y Ae .•,.. i K /7� ��� s }..., '?`>r ct�r t x : �9�5"c'.`:
-
1[�:
t b 4 f.. x.2€., fkt s T.r r fi t ,l v.4{ � �.`� t v r -•f.�f Y
47,
to
� 2 � 'J•`{ A .rrr��4 D � ! i;�. �M1 1 Y '� � 43'yV"AF^) 'r 1 _s •
,,,,�.j.'N+t¢ t _ ;,.0 T r.,t.. R a 1 3 .xm: -•` 5n ..do-. �'' _ rs' d 1: ''a ? i _.�> rf i.� $ x ; '. TSS ''j,* l
A�
W,
T r', i• • F$' c � d u. 'i r X �J},,br 't r y r a w'�� 2� �.,_
w 4 '. � �' :' 17 x P`K h �p •�a'r YIr . ! � ix"# � ',� x 3.ha {' 9i 4 Y �}a&'y rt}W'3' �r�+d '�.ri Yi
9 � . F w5,E4•�'¢ YS. a f' +., �,+' e y 4 �e^ ; R '.'�s x 'y
1.4
Yxwy^R s b sF
14
e °rte 4id w 5 4 +. s e" !, d x f,p,r r a •)`4'^ yr=
It-
sem, w'e .t xf '% +. a r .n,Xy *�' '
} •j-
'R'f�`"t
"S{+Y�� r 2° l �' w+i #.r �' 7"a.`n'�A �#a a e'� w tg r }�k e3.m�4bft .FI'x'.�� � �`9 3c' �•_
t g�� Tv �h. wS�a � �w r'r� �-.'-x ,.y .-r � �t 4"� x� 'r �fa ��� t.-•�4� � .-��� � r;, .
a ,3• x� .. 5�i4x �y.e��,�y a+� 3 *.�€� '�x d� 3 ��T���c, by s '� K lx. 'xf+ 't-,F'J� <i .. � x}Y"�W.
BOARD OF APPEALS
JAN 1106 AM '90x.c�CL r�i qct
RECEIVED
CITY OF SALEM,MASS.
-ct'�
�--��—
��1cGvl�L' ,�tisC �
�.-/SL��'�(.-��, (/t � �_��a�,t L;-'LtLL.__ L�-SCC✓ �S-�i�'O�'��
:t
/ Lil ✓
MINUTES - JANUARY 17, 1990
page
37 Walter St. - Peter & Mary Casale et al (petitioners) , John Suldenski (owner)
Petitioners, abutters to the property at 37 Walter St. are requesting an Admin-
istrative Ruling relative to Building Permit #498-89 issued by the City of Salem
Inspector of Buildings allowing construction of an addition at the above referenced
property. The property is owned by Mr. & Mrs. John Suldenski who reside at that
residence and it is located in an R-2 district. Peter Dore, Acting Secretary read
the application. He also read a letter from John & Virginia Suldenski requesting
a continuance of the petition until the next available hearing. Mr. Suldenski
stated in his letter that there had been vacation plans made and with such short
notice they were unable to reschedule. ( letter on file) The letter was dated
January 8, 1990 and received by the Board of Appeal January 11 , 1990. Mr. Suldenski
also stated in his letter that they had voluntarily stopped work on the addition,
other than what is necessary to protect their investment from the elements. He
also stated he planned to remain stopped if an extension is granted. Mr. Fleming:
is Mr. Suldenski here? Is there any one representing Mr. Suldenski ? No response.
I would consider this a request for continuance and will entertain a motion at
this time. What's the date of the letter? Mr. Dore: January 8, 1990. Mr.
Fleming: he knew at that time this meeting was going on. Mr. Luzinski : You
want us to continue this now? Mr. Fleming: we have to consider this a formal
request for a continuance and take this on first. Mr. Bencal : what type of
vote will this take? Mr. Fleming: I will rule a simple majority. I would hope
the motion is made in the affirmative, it would take three affirmative votes to
continue. Mr. Luzinski made a motion to continue Mr. Febonio seconded. Mr.
Fleming: I will defer from my normal course and will comment on this motion.
I think it 's most inappropriate that the petitioner, that is Mr. Suldenski , comes
before us at this time, knowing that several people will be affected by this
and I will vote against this continuance. Mr. Bencal : I concur. Roll call
vote relative to continuing the petition of Peter and Mary Casale eta] . Mr.
Bencal - opposed, Mr. Febonio - in favor; Mr. Fleming - opposed, Mr. Luzinski-
opposed, Mr. Dore - opposed. The Motion for continuance fails by a vote of one
in favor, four opposed.
Mr. Fleming: As for the ground rules, I will say that anybody thats in favor
of the petition of the Casales and anyone who signed the petition, are those
who want us to overrule the Building Inspector. When I say, who is opposed,
it will be those who do not wish the Building Inspector to be overturned. Since
the burdon now is on those who want us to overturn the Inspector, is Mr. Casale
or his representative present? Would you like to begin. Sandra Casale, 39 Walter
St. , I am representing my parents. Mr. Fleming: start by stating why you think
the Building Inspector's ruling is incorrect. Sandra Casale: I have some notes,
would you mind if I sit down, I 'm a little shakey. There's a number of reasons
we are opposed to this and our neighbor Bill Curran has listed some of the reasons.
There are two I wanted to bring up. 1 . This two story carriage house is being
considered an addition, we do not consider it an addition, we consider it an
additional single family house being built in the back yard and supposedly attached
to the present structure by an insignificant breezeway. The breezeway does not
allow access to or from the two houses. Two separate entrances, the carriage
house is currently under construction and has an entrance which faces our yard,
the present dwelling has a front entrance that faces 35 Walter St. Totally
opposite entrance doorways. Separate piping for utilities have been run from
the street to the carriage house. The carriage house has its own kitchen, bathroom,
mechanical , electrical , heating system. It is a totally self supporting and
self sufficient structure. Now we have the question of parking. Mr. Suldenski 's
plan calls for four (4) cars, he and his wife presently have three, they have
one van and two cars. This would take up most of the alloted parking. He plans
MINUTES - JANUARY 17, 1990
page
37 Walter St. - Continued
to rent out the current house at 37 Walter St. This is a very large house, approx-
imately 12 rooms. Who ever would rent that house would more than likely have
a number of vehicles. Mr. Fleming: let me point out to you that all he has
to do is provide a car and a half for each unit. A total of three parking spaces
under the law. Ms. Casale: the last issue, I wish Mr. Suldenski or his attorney
were here, but the last time we were here, in February of 89, his attorney stated
that he loved the neighborhood and all he wanted was to be a good neighbor.
Another problem we have experience, the police have been called, and this is
on the record, Mr. Suldenski 's heavy equipment was left on the street and what
has happened was; a child was almost hit by a car going around the equipment
and the police had to come and have him remove the equipment and put it on his
property. He does not shovel when there' s snow, brings in large amounts of trash
from, I don 't know where, and he puts it in front of 37 Walter St. , also, since
the permit was issued, he has made sure he has worked from early morning till
late at night, creating a constant source of noise. This includes Saturdays
and Sundays. Again, if you check with the police, there have been anumber of
complaints issued for his working Saturdays and Sundays, with no permit to work.
Never provided a dumpster for debris. Has shown no concern for the integrity
of the neighborhood, no concern for the feelings of the residents and I don't
consider him to be, quote "a good neighbor". In closing, I don't feel the intent
of the Ordinance change was to allow such a structure to be constructed, but
rather to allow porches, dormers and the like, and; as I said previously, almost
a year ago this same plan was rejected by a five to nothing vote. It was considered
at that time to be a separate structure, nothing has changed. Its exactly the
same. I really don 't understand the Building Dept. issueing a permit and interpreting
the Ordinance in such a way, its just beyond us. We feel the onus is on the
City of Salem to rectify this situation caused by incorrect judgementon the
part of the Building Dept. This carriage house does not belong in the back yard. Mr.
Fleming read the letter from Building Inspector to the Cassales dated November 7,
1989 (on file) . Mr. Fleming: that's the vehicle (the letter) by which the
administrative ruling was filed and I would rule that it is within conformity
of Chapter 40A. Mr. Dore read the correspondence from Charles & Diane Hogan, 32
Upham St. , objecting to the continuance of construction at 37 Walter St. (on file) .
Bill Cullen, 41 Walter St. , displayed pictures of the construction, first, just a
quick review. In February we were here when the Board rejected Suldenski 's request
for construction of an addition based on the following: there was substantial
opposition, I think you can see the same opposition. Secondly, you felt the plan
was not in haromny with the neighborhood, and that was one of your major arguments.
There was concern of a spring that might flow beneath this construction which might
be redirected and would damage rear abutters. The property has been used as a
single family since 1975, and, lastly, the plan presented would connect two
buildings of one lot, and I kind of emphasize this. This is what you stated in
your findings, that this would connect two buildings on one lot by a small deck or
breezeway and a corner of the roof line. You concluded there would be substantial
detriment to the public good and would derogate from the intent of the district
and the purpose of the Ordinance. I emphasize this, the PURPOSE, the INTENT of the
Ordinance. That 's what you stated in your findings. Since then there has been
changes, amendment #612, to the Ordinance. This amendment refers to nonconforming
structures, enlargement of one or two family residential structures. It's common
knowledge, and we've talked to many people, that the Councillors that evening, when
they passed this amendment, their intent, their purpose, was to ease the law
requirements with regard to swimming pools, decks, porches, additional rooms and, I
believe that was to lift the burden from your shoulders. Because of the strictness
MINUTES - JANUARY 17, 1990
page
37 Walter St. - Continued
of the zoning laws people had to come and get variances for small changes. The
amendment was written. I know there are no lawyers on the Council , so when a
law is proposed they have to turn it over to the City Solicitor and he writes the
amendment. It goes to the planning Board and then back to the Council and I am
sure they believe the amendment is written to their desire, and their desire was
what I stated it was, simple additions. This amendment, if you read it, like most
laws, I seem to think most laws are written vaguely, we have courts to determine
the intent. The result of this amendment was a collossal loophole, this loophole,
which in my mind only a contractor, which Mr. Suldenski is, he' s in the business,
he builds houses, he buys houses, a terrible precedent has been set, Mr. Suldenski ,
as a contractor spotted this loophole immediately. Although, I have a feeling he
was on top of this and didn't have to wait for passage of the law. This loophole,
as it stands now, can create tremendous problems all over the City. It means a
precedent has been set, anyone can, as long as they have a one family house on
their property and they come within those restrictions, can build in their back
yards just like he is building and attach it with a stick, f they are zoned R-2.
On September 26, 1989 the permit #489-89 was posted in Mr. Suldenski 's window, now
this permit, and we read it, stated that a 12 ' x 16' family and a 10' x 10' deck
would be built, thats what the permit in the window stated. We weren 't opposed to
anything like that. We were opposed to a house, to another building. Then the
construction started, first of all he had a tree in the back yard the size of a
sequoia, I never saw a tree come down so fast. The minute the tree was gone,
waiting outside on the street were the hole diggers, they came in and the hole was
dug. The minute they were gone, in came the concrete men and the foundation was
laid. All of a sudden the frame was up. You can 't believe how fast this went up.
If I were building a house, I would hire this guy. Record setting time. We became
concerned. We came down here to protest, this was about the time he started dig-
ging the hold, to protect our interests. Mr. Munroe was not there, we talked to
Mr. Santo, the Assistant. We were told he was within the law as it now reads.
We still argued the point that it was still two structures on one lot, the answer
we got was; he can connect them with a stick, that was the answer, under the law
all he has to do is attach them with a stick. We argues the possible water problem.
When they were digging the hole he (the rear abutter) noticed water coming in and
he immediately thought about the spring. Well , Mr. Suldenski told the backhoe man
and he started working feverishly to stop that water from coming in. We were told
the building inspector had been up there and looked for the water and couldn't find
it. then we were told it wouldn't make any difference anyway, if there was water
from that spring there was a special kind of retaining wall he could put in and he
would be within the law. Construction continued. We became more frustrated. Did
not conform with what the permit in the window said, he was doing something that
the permit didn't say. So now, in October, we came down to the Building Inspectors
office again and we were shown Mr. Suldenski 's plan and on that plan was marked
permit #498-89 but it was attached to the two story structure, it didn 't say the
same thing the permit in the window said. Mr. Fleming: the only thing we have
in front of us now is a copy of the card which says 9/26/89 build addition, there is
something crossed out here, then it says, and move existing second apartment into
addition. Mr. Cullen: I don 't know what you have but we were told that the permit
posted was a clerical error, that there was a new girl in the office and those
things happen. Well , anyway, we sent a letter to Mr. Munroe in which we presented
our grievances and we requested a Cease & Desist Order to stop him from further
construction until our request to your Board could be met. We received a negative
MINUTES - JANUARY 17, 1990
page
37 Walter St. - Continued
reply. You read that previously. It's my opinion that Mr. Munroe certainly must
have been aware of our opposition back last spring, now the same man comes in and
he's asking, with this loophole, he wants a permit. Mr. Fleming: it 's ironic.
The permits were stopped under the old rule and this is allow under the new.
Mr. Cullen: yes, but whats ironic, whats illogical is; if I were the Building
Inspector I would go to the City Solicitor, this is a touchy subject, go to the
City Solicitor, let him interpret the law for me, then I ' ll come back and issue
the permit. Apparently this wasn't done, the permit was just issued. We finally
turned to Mayor Salvo's office. We didn't know what else to do. We weren't sure
how to go about this. He couldn't believe the situation, he turned it over to
Solicitor O'Brien. He wrote an opinion which I have a copy of right here. Let me
read the last two paragraphs. "In the instant case, the proposed enlargement and/or
alteration is essentially a new separate structure. While admittedly it is
attached to the existing structure by a small breezeway, it is nevertheless, in my
opinion, a separate structure. It is my further opinion that it was not the intent
of the recent ordinance change to allow for essentially an additional structure to
be constructed on a lot containing a nonconforming residential structure. Rather,
the intent of the change was to allow for dormers, porches, additional living
space and the like. Accordingly, it is my opinion that the proposed additional
structure at the above location violates Section VIII D of the Zoning Ordinance
unless a special permit is obtained from the Board of Appeal pursuant to Section
VIII F of the same ordinance. " Signed by Michael E. O'Brien, City Solicitor, '
dated December 5, 1989. Mr. Cullen: we are here tonight to ask for an administrative
ruling and override the Building Inspector. We think he acted hastily in giving
this permit, we think he should have sought out advice from the City Solicitor on
such a touchy subject. We ask you to seriously consider the following thing, no
matter how you slice it, it is two buildings on one lot. Parking Ordinance, I heard
your answer to that but I am wondering about aisle width, does he meet that? Mr.
Fleming: he doesn 't ask for relief from that, he never did, even in the first. If
he couldn't meet it he's have to be stopped in that respect. Mr. Cullen: he 's
calling this a two family house, yet its two houses, it is going to be interesting
to see where the mailman is going to go, it it going to be a separate address? We
have two foundations, two structures. I don 't care what's in between, you have to
go outside one structure to get into the other. If you tell me that 's a two family
house then I have togo back to school , I don't understand the english language.
All I want is our equal rights under the law. Mr. Suldenski thinks the neighbors
have no right to question what he does on his own property, well , unfortunately
for him, we do have that right. We exercised that right last spring and we are
exercising it again tonight. We also recognize the fact that he has rights as well .
We have three branches of government, one that makes the law; one that enforces the
law, unfortunately the enforcement seems a little suspect, and the other to
interpret. . You can see the people who are here, for some it was a burden to come.
We are concerned. There are probably 35 or 40 people here. We have nothing against
this man, we just want to save our neighborhood. I live next'.door to a rear
address that has been there for years. Fortunately the neighbor is a very nice
person and we get along. I have asked her if she does sell to give me first
refusal so I can have some control over who is going to looking down my throat
all summer long. We have another house going in there which was rejected last
spring. We are asking you to overrule the Building Inspector, if was a hasty
decision. Mr. Dore: we have another letter to read that just came in. Mr. Dore
proceeded to read the letter which was dated January 17, 1990 from Pearl Dixon, 43R
Walter St. expressing her support for the administrative ruling and explained why she
was not able to attend. (on file)
MINUTES - JANUARY 17, 1990
page
37 Walter St. - Continued
Mr. Bencal : before we proceed any further, I would like to get word from the
Chair of the type vote needed to agree with the petitioners or disagree. Will it
be a simple majority or what? Mr. Fleming: it will be a simple majority, this is
an administrative ruling, this is not a statutory requirement relative to special
permit or variance and I would rule it would take a simple majority for the peti-
tioners to prevail . I will try to clarify this one more time. Those in favor are
those who are in favor of us granting the administrative ruling, the administrative
ruling will say then that the Building Inspector was wrong in issuing the building
permit. Those in favor this time are those who want to speak in favor of over-
ruling the Building Inspector. Councillor Bates, Councillor at Large: the intent
of the Ordinance when we voted on it, was to allow porches, pools, some types of
dormers. It was certainly not my intent to allow someone to build 'an entire house
in their back yard. I opposed this particular project last February and I oppose it
again tonight. I fell the Building Inspector was wrong, in two cases. He started
this ball rolling when he refused to allow swimming pools in the back yard, we
thought he was wrong then, that was what started the Ordinance change. Mr. Fleming:
you took testimony from this Board, including myself, that we wanted it changed
specifically because those small instances. Testimony and support of that change
was for small porches, additions, etc. that were clogging us so that we were having
twenty to twenty five appeals per month filed with us because someone wanted a deck
or a porch or a swimming pool . Mr. Bates: exactly. I believe that was the intent
of the Councillors, I can't speak for them personally. We voted in favor, we all
heard the same testimony. Mr. Fleming: and you heard nothing in comparison with this
being interpreted as to allow an additional unit on a lot or an additional structure
connected by anthing being allowed. Mr. Bates: nothing along that line whatsoever.
He was wrong the second time when he issued this permit. Whether he thought it was
right or not, he should have at least come back to the City Solicitor for an opinion.
He knew it was a concern of the Council . He failed to do so, he deserves to be
criticized on both counts. I understand that at this time the Mayor has requested
an opinion from the new City Solicitor, I don 't believe he has that ready as yet.
Mr. Fleming: We have one from the former City Solicitor (he read from that opinion
which has already been quoted and is on file) I see the current City Solicitor here
but we have an opinion from Mr. O'Brien. Mr. Bates: One final point I would want
to make is the water problem. Maybe the Conservation Commission should be involve
in this, we don't know at this point, it's a point that has been brought up several
times, whether it is considered a wetland. In summary, basically my intent when I
voted for this was not to allow somebody to build a house. It was just to allow
dormers, screened in porches, above ground pools, etc. Councillor Sarah Hayes: I
would like to echo Councillor Bates remarks. I even asked them for a drainage
alteration permit and I found out they did not have one when I went down there.
All it took was a simple call and thats how they got the permit. They were told to
go down and the permit would be issued. The intent was for a small structure, thats
the way I voted on the zoning change. Tonight we have residents with us, must be
thirty or forty residents here and I think they' llstand up and speak , they are
totally against this. I am in favor of this administrative ruling. Councillor
Leonard O'Leary: as you know, through this Board and myself we tried to change
some of the zoning before the City Council and the Planning Board. As the two
previous Councillors spoke, I concur with both of them, that when it came before
us, Mr. Chairman, the purpose and the intent was not for what this fellow had just
built. We did have meetings, we and the Building Inspector in, we asked him many
questions, why wouldn 't he issue a permit whether it be a pool , additions and he
said because it doesn't read right in the zoning. We did ask for his input and we
did come up with a rezoning package which went to bhe Planning Board, back to us
and back to them and then it became law. The intent and purpose of that was not
to have something built that is built now. They had the same problem in Ward 7
and I believe the name was Bornstein and this is Bornstein number two and it is
37 Walter St. draft page 8
What I want to say is I am in favor of this administrative ruling. Councillor Leonard
O'Leary, Councillor Ward 4, as you know, through this Board and myself we tried to change
some of the zoning before the City Council and before the Planning Board, as the
previous two Councillors spoke, I concur with both of them, that when it came before us
Mr. Chairman, the purpose and the intent was not for what this fellow had just built.
We did have meetings, we had the Building �nspector in, we asked him many questions and
why wouldrit" he issue a permit whether it be a pool , additions and he said because it
doesn 't read right in the zoning. We did ask for his input and we did ask for the Board
of Appeal input, through you Mr. Chairman, the City Solicitors input and we did come up
with a rezoning package which went back to Planning Board, back to us and back to them
and then it became law. The intent and purpose of that was not to have something built
that is built now because they had the same problem in Ward 7 and I believe the name
was Bornstien and this is Bornstien number two and it is totally wrong and the City
Solicitor agrees with us and if its the Building inspectors intent and purpose in doing
this and he was following this all the way through,then he should either be fired or
resign Mr. Chairman, I ' ll be a little strong. We tried to work for all the city and all
the neighborhoods and as I said I 'm the ward four councillor and this is yard 6. I did
go out to the site and this is another dwelling. When they first went out there they
took 2 to 4 feet of earth from the ground, he did not have a drainage permit, he didn't
care, he didn 't care about the neighbor next door or in back. Then he ran down here and
they gave him a permit and he told these neighbors he was going to put in a driveway.
He says he wo% d like to work with the neighbors, he hasn't worked with these neighbors
k .
at all , even to that letter that he wanted to continue this meeting, that he was going
on vacation, I don 't think he even told them that. I think the integrity of the
neighborhood is being abolished. Whether it is in ward 6 or ward 4, I do have some
property in 3dard 4 that people would like to split or add on a townhouse, I think we
will have more people going to the 13ulding Inspector and neighbor5would not have any say.
It is my intention that I am for the administrative ruling and for the neighborhood.
Tom Massarini , 19 Dearborn St. , I 'm in favor of the administrative ruling, I think it
is an insult to the neighborhood and I think along with your ruling I would hope you
would come up with some sort of recommendation as far as what will happen. One minute
it was there, perhaps next it will disappear. John Mousatakis, 23 dearborn St. , somebody
dropped the ball , we should not suffer for it. Byron Locke, 34 Upham st. , direct abutter.
I saw him dig the water up, and they did, they patched up like you wouldn 't believe, they
hit that spring, they just hit the edge of it but there's plenty of water now. I 'm the
the one who's going to get the water from that wall he built there. The City Solicitor
will be hearing from me in the spring when I have a mudhole out back. Think that permit
was issued, and talk about the wool being pulled over your eyes, this thing has watergate
MTNnTES _ JANUARY 17, 1990
Nage
37 Walter St. - Continued
totally wrong and the City Solicitor agress with us and if it is the Building
Inspectors intent and purpose in doingthis and following this all
9 the way through,
then he should either be fired or resign Mr. Chairman. I ' ll be a little strong.
We tried to work for all the City and all the neighborhoods and as I said I 'm the
Ward 4 Councillor and this is Ward 6. I did go out to the site and this is another
dwelling. When they first went out there they took 2 to 4 feet of earth from the
ground, he did not have a drainage permit, he didn 't care. He didn 't care about
the neighbor next door or in back. Then he ran down here and they gave him a
permit and he told these neighbors he was going to put in a driveway. He says he
would like to work with the. neighbors, he hasn't worked with these neighbors as
all . Even to that letter, saying he wanted to continue this meeting, that he was
going on vacation. I think the integrity of the neighborhood is being abolished.
Whether it is in Ward 6 or Ward 4, I do have some property in Ward 4 that .people
would like to split or add on a townhouse, I think we will have more people going
to the Building Inspector and the neighbors would not have any say. It is my
intention that I am for the administrative ruling and for the neighborhood.
Tom Massarini , 19 Dearborn St. , I 'm in favor of the administrative ruling, I think
it is an insult to the neighborhood and I think along with your ruling I would hope
you would come up with some sort of recommendation as far as what will happen. One
minute it was there, perhaps next it will disappear. John Mousatakis, 23 Dearborn
St. , somebody dropped the ball , we should not suffer for it. Byron Locke, 34 Upham
St. , direct abutter, I saw him dig the water up. They patched it up like you
wouldn 't believe. They hit that spring, they just hit the edge of it but there's
plenty of water now. I 'm the one who's going to get water from that wall he built
there. The City Solicitor will be hearing from me in the spring when I have a
mudhole out back. To think that permit was issued, talk about the wool being pulled
over your eyes, this thing has watergate beat all to hell . That City Inspector
shouldn 't be there at all . I 'm problably the one who's going to be affected as
much as anybody and I 'm directly opposed, I was opposed last time and I think the
thing should be taken down, I don 't think there should be any concessions made to
him at all . Should be taken down and bulldozed and-. let him go to Middleton.
Arnold Nadler, 43 Walter St. , would like to key in on the Zoning Ordinance, 1
have done some work with Planning in the past with respect to zoning and I believe
the Ordinance, as written now, does not conform to customary American definitions.
Typically and R-2 zone, as far as I know, refers to a zone in which you can have
either a one family unit or a two family under one roof. The way the Ordinance
is currently written which does permit two separate free standing units is not
in conformity with typical usage. Mr. Fleming: I don't think it does, our
Ordinance prohibits two building on one lot without a Variance. Mr. Nadler: When
Bill and I came down to this office two or three months ago Mr. Fleming: the
question is, Mr. Suldenski has tried to tell us that this is not two separate
buildings because it is connected by a breezeway or a porch or a deck. Mr. Nadler:
we looked at the Ordinance the way it is currently written and it appears that it
did permit two separate units, that the units did not have to be attached. Mr.
Fleming: No, I 'm telling you that's not so. Mr. Nadler: Went to Beverly for
the purpose of clarification and the Beverly Ordinance is written in a typical
manner in which it allow for either single family or two family under one roof,
or what they refer to as semi-detached dwelling which is two units attached by one
party wall , then there is separate consideration made for accessory buildings which
are detached garages, greenhouses, tool sheds. They can be fully detached and
that is in conformance with what seems to be standard zoning practice. Thats the
way it should be here, if it is not already. Mr. Fleming: that is the way it is
here. Mr. Nadler: I might add, parenthetically, whil.e .I was up there the ladies
behind the desk were talking about Salem, they were discussing why they would never
come to Salem to show, one woman said every time she came to Salem she tripped over
MINUTES - JANUARY 17, 1990
page
37 Walter St. - Continued
the cobblestones. However, the Zoning Ordinance there is quite explicit about
whats permitted and what isn 't. Apparently from what your saying it isn 't an
issue. Therefore, these being two separate units should not be there. Mr.
Fleming: that's one of the factual conditions that we have to look at tonight.
Mrs. Locke, 34 Upham St. , I 'm a working mother and I 'm bringing up three kids.
I come home, I 'd like to sit down and relax a little, go in my back yard and unwind
a little, I go out there now and I see these two monstrosities in my back yard.
Bill Claffey, 40 Walter St lived on Walter St. for 40 years, the way I look at
this, if he can build a house in the back yard we won 't have to worry aboutjobs
or the tax base because everyone in the City should be allowed to build..one. in
the back yard.,. The other thing is, I. like the open space up there, I can go out
my back yard and look all the way down Dearborn St. Once this starts, we will
have them all over the City. Kathleen Claffey, 40 Walter St. , I agree. Nancy
Cullen, 41 Walter St. , would like to bring up an issue, at the rear of the current
house, there was a small shed on the back, that has since been removed and a new
foundation put there, an addition was put there as well . I don 't know if that is
part of this or if it's a separate thing totally. Is there another permit for that?
It 's very confusing, it has windows on the rear and it looks like it will have a
deck on top as well as the current construction. Probably won 't even be able to
getout to the back yard. Mr. Casale, 39 Walter St. , I looked at the permit, he
had a blank permit that wasn 't signed. As far as I 'm concerned it's an illegal
house. Mr. Fleming: when you saw the permit was it posted? Mr. Casale: yes, I
looked at it. He gave everybody a different answer, thats why we're suspicious.
I came down here and asked Mr. Munroe and he said he doesn't need a permit, I
said, is that so? Mr. Fleming: he needs a building permit. Helen Jiadosz, 44
Walter St. , I am certainly in favor of the Administrative Ruling. Kevin Carr, 10
Manning St. , shouldn't the permit in the window be corrected? It's been out there
for two months for a one room addition. Mr. Fleming: I don't think there's any
question that a building permit has been issued. It should be posted, whether its
signed or needs to be signed when its posted, I ' m not sure. I don't think there's
a question that permit #498-89 was issued, what it called for is in question
I think. Mr. Luzinski : has it been recinded? Is there a stop work order? Mr.
Fleming: No, but he has said he will voluntarily stop. Our records indicate the
last addition was 9/26/89 when building permit #498-89 was issued to build addition,
there is something crossed out, and then it says move existing second apartment
into addition. There is no Cease and Desist. Neighbor: do you have the power
to impose one? Mr. Fleming: no Bob L ' Italien, 35 Walter St. , when he started
this construction he was dumping all his dirt into my yard. My kids were out
playing one day, his bulldozer dropped a load of dird and almost dropped it on
my three year old daughter. He never told us he was dropping there, he said he
called my landlady, it's behind the garage where you couln 't see, my kids were
playing in my yard. Never gave us notice at all . Said, didn 't you hear the noise?
Of course we heard the noise, he was doing construction, but didn 't know he was
dumping it in my back yard. Michael Cullen, 41 Walter St. , in regard to the
permit that is posted in his window, I don 't know what evening it was, I went
down toread it for my parents and it did state that he was building a family
room and a deck. I am in favor of the Administrative Ruling. John Linus, 33
Walter St. , Patricia Alberti , 17 Dearborn St. both in favor of the Administrative
Ruling. Stan Poirier, 8 Cottage St. , all though I 'm not part of this neighborhood
situation, I would like todefinitely be cast in favor of the Administrative Ruling.
I think what 's happening there is indicative of whats happening in a lot of the
neighborhoods. I know in our area we had similar problems. Buildings were put
up then after the fact they had come back, and I think the Building Inspector
is remiss in the fact that before he issues a permit he should go out and inspect
the property and make a decision based on what he sees and what the Ordinance
MINUTES - JANUARY 17, 1990
page
37 Walter St. - Continued
really implies. Robert Chute, 34 Walter St. , directly across the street, have
lived there twenty years. When they started this I started getting water in my
cellar, never had it before. I don 't know if it will settle down now or not.
I heard they distrubed the water table when they were digging. Anybody with half
a brain can stop at my house, take a look and see whats in that yard.
No one appeared in opposition to the Administrative Ruling.
Public Hearing portion closed.
Mr.Luzinski : There are separate utilities, water, electricity, gas? Mr. Fleming:
9
Mrs. Cassale testified that there was separate piping going to addition. Mr.
Luzinski : electric meter? Not yet. What it up, the building skin? Mr. Fleming:
was there a sewer line that went out there? yes, that was one of the first things.
Mr. Fleming: does anyone have any question of anyone here tonight? Hearing none,
is there a motion relative to the granting of the Administrative Ruling that
permit #498-89 was issued improperly by the Building Inspector. Mr. Bencal made
the motion to rule in favor of the peitioners, Mr. & Mrs. Cassale, et al , neighbors,
abutters and others, that the building permit #498-89 issued by the Building
Inspector for a quote, unquote, addition for 37 Walter Stl . was issued in error
and should be revoked forthwith. Mr. Fleming: there has been a motion that the
Administrative Ruling be granted, that the building permit was not granted under
the auspices of the Salem Zoning Ordinance and such permit should be revoked
forthwith, is there a second? Mr. Luzinski seconded. Under the purposes of
discussion, any comments? Mr. Bencal : we sat here almost a year ago, a decision
was made by this Board, I sat on that decision to deny Mr. Suldenski , I see more
opposition tonight than there was that night. The neighborhood opposition is
intense and the reasons are extremely valid and I have seen nothing to change my
vote, I am glad to see Mr. Harris here from the Building Department, unfortunately
Mr. Munroe failed to show up this evening and the representative of the building
department who had immediate authority for this, Mr. Santo, is not here this
evening either to explain their action. There is not reason for them not to be
here, other than illness or serious family problems and I have to ask myself
why they are not here. Mr. Luzinski : I would like to comment on the change in
zoning, I think the intent of the City Council was to prevent something like this
and if it needs rewording or some other munipulation in the Zoning Ordinance, I
think that should be taken care of, either by the Planning Board or the City
Council . Mr. Fleming: we don't have a role in Zoning, other than our opinions
being respected. Those two bodies, the Planning Board and the City Council control
it. It 's a good thought and maybe the City Solicitor can take a look at it, but
I don 't think there's a problem with it at this time. Mr. Dore: I 'm in favor of
the Administrative Ruling without further discussion. I am concerned with the
building that is there now. Will we have any control over what happens to that
building? Mr. Fleming: once the building permit is revoked, the inspector has
the right to ask for the removal of the structure that was done without conformance
with the Ordinance and without the protection of a permit. You can well rest
assured that problably, this petitioner will rush over to Superior Court and try
to enjoin any action relative to that demolition. We can put that the consensus
of the Board is that the building be removed. We can amend the motion to include
the building be removed. We are saying this building is wrong and his ruling on
this permit is wrong and it should never have been issued to accomplish the
purpose that the petition sought to do in a variance. He's saying the the change
in zoning allowed hom todo this and the Building Inspector so ruled. It is our
job to say simply whether or not that change was justified to issue the permit and
we have the right to revoke that permit if we think it should be revoked.
MINUTES - JANUARY 17, 1990
page
37 Walter St. - Contined
I feel the amendment is clear and concise and that this is a second structure.
Clearly two buildings on one lot. I am bothered that the Ordinance is being
flaunted this way. I am concerned, the Building Inspector started all this with
his interpretation that made everyone who wanted a deck or a pool or anything to
come to the Board. Then he goes and issues a permit like this. He was aware of
the intent, he was in on all the discussions. We all worked very hard on this
and to have it come back and bite us like this is wrong. Mr. Bencal , if you would
repeat the motion, perhaps include the removal of the building. Mr. Bencal : the
motion is: The Board finds in favor of the petitioners, et al , abutters, neighbors,
and others, that the permit #498-89 was issued in error,that it be revoked forth-
with and the structure be removed as soon as possible, that the Building Inspector
take immediate action to have said building removed, that is the motion and it has
been seconded. Mr. Fleming: any questions on the motion, if not, madam clerk if
you would call the role.
Mr. Bencal in favor
Mr. Febonio in favor
Mr. Fleming in favor
Mr. Luzinski in favor
Mr. Dore in favor
The motion carries unanimously, the Board of Appeal upholds the petitioners
request for an Administrative Ruling.
3 o�P eitp of *afem, lKaggarbugettg
Public Propertp Mepartment
Wuilbing Alepartment
(one oalem Often
745-9595 aCXt. 380
William H. Munroe
Director of Public Property
Inspector of Buildings
Zoning Enforcement Officer
July 25, 1991
To the Honorable Neil J. Harrington
Mayor, City of Salem
Dear Mayor Harrington:
I respectfully request the appropriation of Eight Thousand
dollars ($8,000) to the Public Property Demolition Account Number
01-4-0553-390. Said appropriation is necessary to allow for the
demolition of the townhouse building located at 37 Walter St.
The construction of this building was appealed to the Court
and it was the decision of the Court that this is an illegal structure
and must be removed. The owners of the property were afforded the
opportunity to remove the building but have neglected to do so, there-
fore the need for this appropriation.
Upon completion of the demolition the Legal Department will be
instructed to place the appropriate lien on the property.
Respectfully submitted,
��liam H. Munroe
Inspector of Buildings
WHM:bms
`( .o naurtl4r
KEVIN T. DALY LEONARD F. FE MING
ASSISTANT CITY SOLICITOR 'ice- 2 ASSISTANT CITY SOLICITOR
93 WASHINGTON STREET �I�R`�'I�~ 93 WASHINGTON STREET
AND CITY OF SALEM - MASSACHUSETTS AND
ONE CHURCH STREET ONE SCHOOL STREET
MICHAEL E. 0 BRIEN
745--44 311 CITY SOLICITOR
SALEM. 01970 BEVERLY. MA 01915
93 WASHINGTON STREET 745-4311
745-0500
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 BI WASHINGTON STREET
July 21, 1988
William H. Munroe, Building Inspector
City of Salem
One Salem Green
Salem, Massachusetts 01970
Dear Mr. Munroe:
You have requested my assistance in interpreting Section
VIII D. 1 . , nonconforming structure, of the zoning ordinance.
Somewhat similar language is contained in the second sentence
of the first paragraph of GLc40A §6 .
The case law on this subject appears to be clear that
generally, interior changes to nonconforming structures do
not amount to enlargement or alteration requiring a special
permit from the Board of Appeal. However, that same case
law likewise appears to be clear that generally, exterior
changes to nonconforming structures amount to enlargement
or alteration requiring a special permit. This is not to
say that the first sentence VIII D. 1 . does not leave you
without any discretion. For example, if you have a
nonconforming structure on a substandard lot, in my opinion
an addition to the structure or a deck which enlarges the
footprint of the building would require a special permit.
It is also my opinion that a slight change such as a window
or a dormer which results in slight extension to the structure
does not amount to an enlargement or alteration within the
meaning of Section VIII D. 1 . requiring a special permit.
Lastly, it is my opinion that the second sentence of
VIII D. 1 . is so precise that it leaves no room for any
discretion. Any increase in height above the existing roof
of a nonconforming structure requires a special permit.
z
2 -
I hope the above is helpful to you. I will make myself
available to discuss specific situations with you as they
arise.
ry truly your
Lichael E. O' Brien
City Solicitor
MEO/jp
J
Up of *alem, Naggacb gettg
j3ublic Propertp Department
�3uilbing Department
One asalem green
745-9595 1fxt. 380
William H. Munroe
Director of Public Property
Inspector of Buildings
Zoning Enforcement Officer
September 14, 1988
Mr. James M. Fleming, Chairman
Board of Appeal
One Salem Green
Salem, MA 01970
RE: Section VIII-D, Zoning Ordinance
Dear Mr. Fleming:
Because of some confusion regarding the interpretation of Section
VIII-D, Nonconforming Structure, of the City of Salem Zoning Ordinance, I
requested an interpretation of this section from our City Solicitor.
In Mr. O'Brien's opinion the first paragraph clearly states that any
lot that does not have 15,000 square feet of land or 100 feet of frontage
or that does not, in any other way, conform to the Ordinance, must get
relief from the Zoning Board of Appeal to increase the footprint or add in
any way ( i.e. pool, shed, etc. ) , to the lot coverage. Following my con-
versation with Mr. O'Brien I find myself in complete agreement with his
interpretation. Considering that only the newer developments can satisfy
this requirement, I'm sure you are aware of the effect enforcement of this
section will have on the work load of your Board.
With this in mind I would respectfully request that you and your
fellow Board Members consider a change in this section.
Sincerely,
Wliam H. Munroe
Zoning Enforcement Officer
WHM:bms
cc: City Solicitor
- -- _ - . � _ ���°�D - _ - -- -. - --_ ---
_ I
- _-. -�- _ _�.�p____-- - - - - --___._ __ � _-. _ __ _ _
. ;
___ _ _
, _
�� � .
. __._ _ _-t:�ae.� �-o� � _ _ _.__ _ _
J
tt - ___ -- - ��. - - -
__ _� J -�?� - - -- --- -- ----
��
4�
--- ---- - --- -- --- ------ -- - Jam"-'----��_. �. -- _ -____ _-- - -- - --
{
Z1,9
/ 3
ILA
_ -- -- - --- - -- - -----r- - - - - _- - - --- --- ------- _ -__-.
. _^��:._
� �
__ �.� _--.r--_�.^�-�.— _____._ __ __.. _r--r �_ _ - . _
_.—�..� ^ —rte_ ._ .� .�
_ -.. - ._ _ __. .r.. �—� ._ � _._�..�T� ..__ �.__.
ta �. ` ___
' T��
1
Y- / ✓ r
t
.t
a _,_.—_
- . __ ._ �_ _.��__Y_ _.____ _ _._..__�. .._ ..,� __ _ ... _ ._._ __ — __ _ --
__ _ _ _
,.
t
it _.. _�.r ... ___ -�u��- _ .�.
_�_ _ .�� �...-�.5��-���� ��.+-eT`^r�' .. � rte.
Y �
I
___._
(Ili#V of ttlem, � sttrhu P##�
ire Pepart ment 3!ieic6yuarYcrs
uowc
48 3attfagefte ,'itrert
Joseph F. Sullivan I*alem, tea. D1970
Chief
City of Salem Re: 37 Walter Street
Board of Appeal John Suldenski
One Salem Green Hearing date: February 22, 1989
The property located at #37 Walter Street has current compliance with the
provisions of Chapter 148, Section 26E, Massachusetts General Laws
relative to the installation of automatic smoke detectors.
The Salem Fire Department has no objection to the granting of a Special
Permit to allow the construction of an addition, to be used as an
additional unit at this location, subject to the following conditions:
1. Plans for the proposed construction are presented to the Fire
Prevention Bureau for approval prior to the issuance of a
building permit.
2. The proposed construction shall conform to all applicable
provisions of the Massachusetts State Building Code, 527 Code of
Massachusetts Regulations, the Salem Fire Prevention Code, the
Salem City Ordinances, and Massachusetts General Laws relative to
fire safety.
3. The applicant shall arrange for an inspection by the Fire
Prevention Bureau upon completion of the work.
Signed,
Robert W. Turner,
Fire Marshal
y �. ,.;� Wit- �• f i. �,..
r
14
r �
44'Walter Street
Salem, MA 01970
February 22, 1989
Board of Appeals
One Salem .GY.een
Salem, MA 01970
RE: John Suldenski
37 Walter Street
When Mr. Suldenski came to my house on Sunday, February 19;
I signed his peition not to oppose his building an addition
to his house.
However, havin4 heard some of my neighbors concerns who
have been my neighbors for many years -- I am having second
thoughts. If the Board approves this addition, I would hope
that there would be a stipulation that this property be '
owner occupied.
Thank you.
Yours
truly, r\y
Helen J. Jiadosz
ry
J .