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12 WILLSON STREET - ZBA LIE ooNDITa� CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL 120 WASHINGTON STREET, 3RD FLOOR n - � i SALEM, MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 oo� FAX: 978-740-9846 n A 0 KIMBERLEY DRISCOLL , MAYORr'*, November 23, 2009 crl co City of Salem Zoning Board of Appeals Petition of REINIER CABRERA, seeking Variances from minimum side and rear yard setbacks, and minimum lot area per dwelling unit, to allow for the conversion of the one-family house on the property located at 12 WILLSON STREET, Salem,MA(Business Neighborhood Zoning District) to a two-family house, and to allow for the addition of an emergency exit at the rear of the house. A hearing on this petition was held on November 18, 2009 with the following Board of Appeals members present: Rick Dionne,Annie Harris,Jimmy Tsitsinos,Beth Debski, and Becky Curran. The Petitioner sought Variances pursuant to the City of Salem Zoning Ordinance, Section 4.0: Dimensional Requirements. Relief was sought from lot area per dwelling unit from rear yard setback in order to accommodate construction of a rear emergency stairway and the conversion of the single-family house to a two-family house. At the request of the Petitioner,the Board of Appeal voted 4-1 (Curran, Harris, Dionne, and Tsitsinos on favor, Debski opposed) to allow the Petitioner to withdraw this petition without prejudice. GRANTED PERMISSION TO WITHDRAW WITHOUT PREJUDICE NOVEMBER 19, 2009. N�LIM M O LL/1 Richard Dionne TTT I Salem Zoning Board of Appeals 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 of filing of this decision in the office of the City Clerk. Pursuant to the 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 certificate of the City Clerk has been filed with the Essex South Registry of Deeds. (111ty of Salem, �fflttssarljusetts �Rottra of 4venl ^ r " U.1 of Of elf f7,5 ;Lp r f' SS DECISION ON THE PETITION OF JOSEPH REITHER FOR AN ADMINISTRATIVE RULING FOR THE PROPERTY LOCATED AT 12 WILLSON STREET (R-2\B1 ) A hearing on this petition was held September 17, 1997, with the following Board Members present; Nina Cohen, Albert Hill , Joseph Ywuc and Richard Dionne. 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. Petitioner is requesting an Administrative Ruling in accordance with Massachusetts General Law 40A, Section 8 . The undersigned disagrees with the determination of the Zoning Enforcement Officer as to the legal use of the dwelling located at 12 Willson Street. More specifically, the petitioner request the Board of Appeal to overturn the Zoning Officer' s finding that the legal use of the property as being a single family dwelling. The Board of Appeal , after careful consideration of the evidence presented at the hearing, makes the following finding of fact : 1 . Attorney Kevin Daly of 32 Church Street represented the petitioner. 2 . Petitioner sought a ruling pursuant of MGL c. 40A, Section 8 , overturning the Zoning Officer ' s finding of July 11 , 1997 , that the legal use of the property at 12 Willson Street was as a single family dwelling. 3 . The Board heard testimony by City Coucillors John Donahue and Kevin Harvey, stating that the previous owner of the property applied for a waiver from frontage requirements to the City's Planning Board. According to the City Councillors , the waiver as granted upon the condition that the property would become available for a single family dwelling only. The councillors ' testimony was corroborated by a copy of the hearing transcript submitted to the Board. 4 . Testimony by an abutter, Wayne Malionek, 6 Willson St . stated that years ago the sellers told him they would request permission to allow a single family dwelling on the lot . On the basis of this understanding, Mr . DECISION OF THE PETITION OF JOSEPH REITHER FOR AN -" ADMINISTRATIVE RULING AT 12 WILLSON STREET tw page o Malionek did not raise an objection when the property owners petitioned this Board to sever their property and create a buildable lot . 5 . A petition was submitted with 12 names in opposition to the owner to convert property into a two family dwelling. Therefore, based on the above findings of fact and on the evidence presented, the Salem Zoning Board of Appeal voted unanimously, 4-0 to oppose the petitioners request for an Administrative ruling regarding the legal use of the property. Nina Cohen, Member Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the 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 is 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 a g µ.�ow��� Of �IlEI1T� 2ISS2CCUSEB 4 ; Pbunui8 uttrD Ocr I SI 3 02 PN '9q /� crr( oi I; , ! , „ "•ares w+` �ILQ `�2CIPlt[ IroTPEY! M A s S LFf��'3 i)ECISION OF' THE F`ETLTION �jF CLCILE BERUBE FOR A WAIVER AT 18 WILLSON STREET A Public Hearing on this petition was held on October 6, 1994 at 7 : 30 p.m. with the following Board members present : Walter B. Power , III , Chairman ; Carter Vinson; Chuck Puleo; John Moustakis , L. Lee Harrington, William Cullen and Gene Collins . Notice of this meeting was sent to abutters and notice of the Hearing was properly published in the Salem Evening News . Petitioner , owner of property, is requesting a waiver from frontage requirements for Lot B on Willson Street from the Subdivision Regulations under M.G. L. Chapter 41, Section 81R. This Section states that "A planning board may in any particular case, where such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law, waive strict compliance with its rules and regulations, and with frontage or access requirements specified in the law. . . " The waiver from Lot B is being granted upon the finding by this Board that : 1 . Lot B with 50 feet of frontage is similar to other lots in the neighborhood; 2 . Special circumstances exist which especially affect the land, and structures involved and which are not generally affectingother land and structures involved, and 3 . Literal enforcement of the provision of the Zoning Ordinance would involve substantial hardship, financial or otherwise , to the petitioner . Therefore, the Planning Board voted with a vote of seven ( 7 ) in favor none ( 0 ) opposed to grant the Waiver from frontage requirements for Lot B, .18 Willson Street , subject to the following conditions : 1 . A notation be put: on the plan which indicates that Lot B is intended for residential use; and 2 . Petitioner agrees to Lot B being used for a residential use only . r' WAIVER GRANTED OCTOBER 6 , 1994 This enocrsement shall not take effect until a copy of the decision bearing certification of the City Clerk that twenty ( 20 ) days have elapsed and no appeal has been filed or that if such appeal has been filed chat it has teen dismissed or denied, is recorded in the Essex South District Registry of Deeds and is indexed in the grantor index under the name cf the owner of record or is recorded and noted on the owner ' s. certificate of title. The fee for recording or registering shall be paid by owner or applicant . I hereby ::ertify that :: ,-opy cf this decision and plans are on file with the �.ity Clerk and a copy is c❑ file with the Planning Board. Sincerely, Walter B. Power, III dkty Chairman EX\PB .,18vllLLSON. DEC COPY COMMONWEALTH OF MASSACHUSETTS ESSEX, SS SUPERIOR COURT DEPARTMENT DOCKET NO.: 97-1944 B JOSEPH REITHER, ) Plaintiff, ) vs. ) DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT GARY BARRETT, NINA COHEN, ) RICHARD DIONNE, ALBERT HILL and ) JOSEPH YWUC, as they are Members of the) Board of Appeals of the City of Salem, ) Defendants. ) STATEMENT OF RELEVANT FACTS In 1941, Cecile Berube and her husband purchased two separate lots at 18 Willson Street in Salem, Massachusetts. (Plaintiffs Exhibit 1).' Mrs. Berube and her hushand built their home on a portion of this property, now 18 Willson Street. The remaining portion of the lot, now 12 Willson Street, was vacant. (Plaintiffs Exhibit 1). By operation of law, these two lots merged upon adoption of and amendments to the City of Salem Zoning Ordinance. The parcel at issue in the within matter, 12 Willson Street, is situated in the B-1 district in which two-family dwellings are permitted. (PlaintitFs Exhibit 1). Specifically, the Salem Zoning Ordinance provides: Sec. 5-2 Permitted Uses (d)B-1 Districts (1) All uses permitted in R-3 Districts subject to all the provisions specified for each use. 1 References to Plaintiffs Exhibit N are to exhibits filed with Plaintiffs Motion for Summary Judgment. 1 (c)R-3 Districts (2) Multifamily dwellings Notably, the R-3 District Residential Density Regulations requires a minimum lot area of 25,000 square feet (3,500 per dwelling).2 On April 7, 1994, Mrs. Berube petitioned the Board of Appeals for a variance from the density regulations of the Salem Zoning Ordinance to allow her to divide the premises into two five-thousand-square lots and to allow her existing house and structures to remain on one parcel, now 18 Willson. (Plaintiffs Exhibit 1).' Specifically, she requested: With respect to Lot B [12 Willson Street], the petitioner requests a variance from the minimum lot area requirement to allow for a 5,000 square foot minimum lot area and maximum lot width of 50 feet. All other dimensional requirements of [T]able 2 of Section 6 of the Salem Zoning Ordinance would remain unvaried. (Plaintiffs Exhibit 1)(emphasis added). Table 2 of Section 6 is the business and industrial density regulations for B-1 districts, not the residential density regulations. The Board of Appeals voted unanimously(5-0) to grant the requested variances. (Plaintiff's Exhibit 2). That variance was recorded on July 14, 1994. (Essex South Registry of Deeds, Bk 12,662, Pg 147). The conditions set forth in the variance were: I. Petitioner shall comply with al city and state statutes, ordinances, Codes and regulations. 2. Property to be divided in strict accordance with the plans and Dimensions submitted. 3. Petitioner shall comply with all requirements of the Salem Fire Department Relative to smoke and fire safety. 4. Petitioner is to obtain approval from any City Board o[r] Commission having jurisdiction, including, but not limited to, the Planning Board. 2 Pertinent Sections of the Salem Zoning Ordinance are attached as Appendix A. 3 In Plaintiff's Exhibit 1,Lot A= 18 Willson Street and Lot B= 12 Willson Street. 2 (Plaintiff's Exhibit 2). On October 14, 1994, Mrs. Betube petitioned the Planning Board seeking a waiver from frontage requirements for 12 Willson Street. (Plaintiffs Exhibit 3). The Planning Board unanimously(7-0) approved this waiver subject to the following conditions: I. A notation be put on the plan which indicates that Lot B [12 Willson Street] is intended for residential use; and 2. Petitioner agrees to Lot B being used for residential use only. (emphasis added)(Plaintifl's Exhibit 3).4 On or about September 16, 1996, Plaintiff purchased 12 Willson Street from Cecile and Paul Berube for thirty-five thousand dollars ($35,000.00). (See attached Defendant's Exhibit 1). On or about July, 1997, Plaintiff sought a permit to renovate the house he had moved from Boston Street to 12 Willson Street into a two family dwelling. Based on his knowledge regarding the condition that the parcel be used solely for a single-family residence, Building Inspector Leo Tremblay denied the application for the permit. (See attached Defendant's Exhibit 2, Affidavit of Leo Tremblay)(see also Plaintiffs Exhibit 4). Furthermore, it is Inspector Tremblay's opinion that Mrs. Berube's variance was for the 6,000 square foot minimum lot width of Table 2, not the multifamily requirement of Table 1.5 Plaintiff sought an appeal with the Salem Board of Appeals requesting an administrative ruling on Inspector Tremblay's refusal to grant the building permit. (See Plaintiffs Exhibit 5). After hearing, the Board voted unanimously (4-0) to uphold the Inspector's denial of Plaintiffs 4 The plan of the property is filed in Essex South District Registry of Deeds in Plan Book 295,Plan 4. 5 Certainly,Mrs. Berube's requested variance specifically cites Table 2,with no mention of Table 1. Additionally,the Plot Plan submitted with Plaintiffs Request for Administrative Ruling reveals side lot widths of 10.9' and 12.5'which do conform with Table 2's 10'requirement(Business Density),but not Table I's 20 feel requirement(Residential 3 permit. ARGUMENT In his motion for summary judgment, Plaintiff must establish"by credible evidence from his affidavits and other supporting materials that there is no genuine issue of material fact and that he is entitled, as a matter of law, to a judgment." Community Nat'l Bank v Dawes, 369 Mass. 550, 554 (1976). Thus, the sole issues to be determined by this Honorable Court is the scope of the variance granted by the Board of Appeal and the intent of the Planning Board in placing the condition "residential use" in the frontage waiver of 12 Willson Street. "The question is not what the members may [have] wanted] to do but whether reasonable persons examining the formal records could ascertain that a particular action had been taken." See J.R. Investment. Inc. v. City Clerk of New Bedford et al., 28 Mass. App. Ct. 1, 5 (1989). It is clear from the record that the scope of the variance the Board of Appeal granted Mrs. Berube in 1994 was for the purpose of allowing a 5,000 square foot lot with 50 feet frontage on 12 Willson Street. Moreover, the Planning Board's waiver specifically restricted the use of 12 Willson Street to residential. The record does not contain a variance from the multi-dwelling residential use density requirements(Table 2). Thus, the reasonable interpretation of the record indicates that 12 Willson Street is not to be used as a two-family dwelling but rather only a single- family residence. Although the records are not disputed, the specific interpretation of the variance and waiver granted for 12 Willson Street are in dispute. Density). (See Plaintiffs Exhibit 5). Neither Mrs. Berube nor the Plaintiff sought a variance for the side yard minimums 4 CONCLUSION For all of the foregoing reasons, the Defendants respectfully request that Plaintiffs Motion for Summary Judgment be denied. RESPECTFULLY SUBMITTED, Defendant Board of Appeals of City of Salem, By its attorney, John D. Keenan, Assistant City Solicitor BBO#561573 15 Church Street Salem, Massachusetts 01970 978.744.8500 CERTIFICATE OF SERVICE I,John D.Keenan,Assistant City Solicitor for the Defendants,City of Salem Board of Appeals,certify that a true copy of Defendants'Memorandum in Opposition to Plaintiff's Motion for Summary Judgment was served via first class mail,postage prepaid,to counsel of record for Plaintiff Kevin T.Daly,32 Church Street,Salem, Massachusetts 01970. John D.Keenan Date 5 EXHIBIT 1. Quitclaim Deed 12 Willson Street, Salem Essex South Registry of Deeds (Book 13,779 Page 479) 1 � _ F ' i )n 'Ef13779pG4r9 QDITCLAIM DEED Ceche A. 8arube and Paul f} Meaaachueetta 01970, for 8erube, both of Salem, consideration of 1970Thirconsideration Essex Count w1[hph C• Reithez, ty Five Thousand ($35,OOOpatd end In full f1j of of y'� Ne^' oCee ii 00) Dollars grant to Massachusetts Covenants the T ��°f/ Swen�?¢e71j IY),y• 01970, bounded and land !n Salem, Esaex Co �) described as followai qty'- ;� NORTHERLY by Willson Street fifty (50) feet _-0 WESTERLY by Lot A as '� lr hundred (100) shwn On a Plan referred to hereinafter one e J SOUTHERLY by land now or formerly of Aaf� A, pellitler tiltI� ;: In feet? and VJ Y (50) ( EASTERLY by land now or formerly of M s y� of Wayne P. Malionek and L Realty Trust and ' (100) feet Marie E. Cordelro land l Ono hundred Being shown property _ ee Lot B oa 31, 19931, Preple ared 8erube,e scale l l"ee plea of Land in Salem, Washington Street by North Shore Suur,es 10' dated December 3 District Regist ' Salam, Ma82acbusetta 01970, Pil Corporation a 8eeex�Oo209 rY of Deeds in Plan Book 295, plea 4. ._ AccordingContaininoDsaidI'proximetely five thousand (5,000) s i according to geld plan. quare feet �f land, Being a Portion of the ,\ Registry Of Deeds in Bookm3266,dpasei29dand Hook 9657, ded In said 31Executed as n sealed Inst page 365. rument this 16th day of September, 1996. Of' ,. �l,.l.e A 8erube l W. Beruba THE C Essex, as OMMONWEALTH OF MASSACHUSETTS Than PersonallySeptember 16,- 1956 their Paul W, gerube and4 acknoweareledged the need Ceicle A. Herubs sad their tree act and deed before me, foregoia 9 Sastrume to be <. ;. u, He'2 11 eB, My ry A. r•. otery Public anion xpiresi 05 Y Co E /29/03 cr w ' 41 p. V V V♦Com, • 1..(.1 yl' yi EXHIBIT 2 Affidavit of Leo Tremblay COMMONWEALTH OF MASSACHUSETTS ESSEX, SS SUPERIOR COURT DEPARTMENT DOCKET NO.: 97-1944 B JOSEPH REITHER, ) Plaintiff, ) vs. ) AFFIDAVIT OF LEO TREMBLAY GARY BARRETT,NINA COHEN, ) RICHARD DIONNE, ALBERT HILL and ) JOSEPH YWUC, as they are Members of the) Board of Appeals of the City of Salem, ) Defendants. ) I, Leo Tremblay, under oath, do hereby state and depose: 1. My name is Leo Tremblay. I have been the Building Inspector for the City of Salem since November 1992. 2. Part of my responsibilities as Building Inspector is to review/approve applications for building permits in Salem. I am the zoning enforcement officer for the city. 3. On or about July 1997, Plaintiff filed an application for a building permit to convert/renovate a house he had moved from Boston Street to 12 Willson Street into a two-family dwelling. 4. After reviewing the records regarding 12 Willson Street, I determined this property was to be used as a single-family residence. 5. Additionally, from my review of the record of Mrs. Berube's variance, it is clear that she sought a variance from the density provisions of Table 2, not Table 1 of Article Six. It is my opinion that the Board of Appeals granted Mrs. Berube a variance permitting single family residential use on this 5,000 square foot lot (Table 2 requires 6,000 square feet), but that it did not grant a variance from the multi-dwelling density regulations of Table 1, Mr. Reither's plot plan itself reveals conformity with Table 2, not Table 1. If reviewed under multi-family dwelling requirements of Table 1, Mr. Reither's house does not meet the required side yard widths. I 6. For these reasons, I denied the application to convert the premises into a two-family dwelling. SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS DAY OF MARCH 1998. Leo Tremblay, Bldg. Inspector 2 APPENDIX A SALEM ZONING ORDINANCE J i µ f•^> N .r - J L z 4011 3, s� ,�ri",'a'{�{'W�J� its.,•' 4 �:' +� � �< ZONING ORDINANCES y eJ- xy i nSW '^ V. •�rz hd '"'' +s `r�..,„Wi_a .� ra ^J+�'�"t'y4 T+��,,y't4/S I ;"' TMf'�r r�iw.v,`e•�L� as y, .'. ...ti - �' �a']..'Y 3�°�w'a' �i, N '`�. > r.. .r'i+'�✓fir _ +,C'4''.k '^"�• , � ' 07 � MY OF y Yy .. ✓ H� f�� �4�M"atV t^,`iiryl:•`.,r..rr� ' � .2`�`.? "'Y SALEM MASSACHUSETTS r` tW'..y�y��,e�(.Yt.t"k`L h vt,C,.��„x,• . .rw.•`y}z"s•Hr . :y •r t�i i�'.,� /,.µ�Jy �� ♦ ra .T"'r. n _ � y.�` �+'�rk „r'��'i :x• iy.+ri-1"5:•'r [ �a '4 s` 'fir 4 / / + L u.d Y Cl'�'��y�sr` sE r `'tk y5. m- •a.n t "O`r vw -. L '�i Y �2l �^l*w�`. , d�F'h'`�:t >• Sr J 1, . � - *F �3.�C�.�'k. 'i' >,. LN�� i`t,z5! c12* }, '" `.YY•�x L'� t . .. w of ICJr'„y""' z .,yJ�,r.: ♦1 ra a��fY'r.+ r .e�w? a Mala,��rry. 'M"_-T w f i yJ y r„ • MUNICIPAL CODE CORPORATION:: y r ti ♦� Tallahassee, Florida T 1¢x+ t'k`i•^N.",+:R c - rt�w r.)ZK''v" 51. USE REGULATIONS SALEM ZONING ORDINANCE Art.V. 15-2 ARTICLE V. USE REGULATIONS d. No products shall be publicly displayed or offered for sale from the roadside. ? Sec. 5.1. Generally. (3) Nursery,elementary and secondary schools, (a) Uses of land, buildings and structures shall public parks and playgrounds, and public be regulated according to the schedule of uses set libraries. out in this article for each type of district. "Per. (4) Churches and similar places of worship. mitted uses" are those which shall be permitted in the district at any time. "Special permit uses" (5) Parish houses, convents and monasteries. are those which may be permitted in the district (6) Institutions of higher education. at the discretion of the board of appeals upon its determination that specific conditions are satis- (7) Public and private golf courses. Pied. As explained in section 5.3(h)(3), "prohibited (g) Private garages and other accessory uses uses"are those which shall be specifically prohib- and buildings, provided that such uses are ited in the City of Salem at any time. clear!X incidental to the orincipal use. All (b) The interpretation of the language of this the buildings on the lot shall not occupy a ordinance with respect to permitted and special greater percentage of the lot area than permit uses shall be in accordance with the intent listed in Table I following Article VI herein. stated in section 3.1 for each type of district. (b) R-2 Districts. The following are permitted (c) The term "use of land" shall include the in- uses in the*two-family residential districts: terpretation which shall include the restriction (1) All uses permitted in R-C and R-1 Districts, that the land cannot be used for the storage or except agricultural, horticultural and flori- overnight parking of motor vehicles, including cultural operations. trucks, tractors, trailers except as exempted by (2) Two-family dwellings,detached or attached. section 7-1, unless the "permitted use" for build- ings in the district allows such parking for the (3) Rooming and boarding of not more than two storage of commercial motor vehicles. (2) persons. (4) Historic buildings open to the public. Sec. 6.2. Permitted uses. (5) Museums. (a) R-C and R-1 Districts. The following are per- (6) Private garages and other accessory uses mitted uses in the residential-conservation and and buildings, provided that such uses are one-family residential districts: clearly incidental to the principal use. (1) Detached single-family dwellings. (7) Buildings and facilities for elderly housing (2) Customary agricultural, horticultural and projects built under the jurisdiction of the floricultural operations, provided that: Salem Housing Authority and financially aided by either the U.S. Public Housing Ad- a. All the buildings combined shall not ministration and/or the Commonwealth of occupy a greater percentage of the lot Massachusetts Department of Commerce- area than listed in Table I following Division of Public Housing. Article herein. (c) R-3 Districts. The following are permitted producing substance and no building b. storage manure odor- or dual- uses in the multifamily residential districts: pr in which farm animals are kept shall (1) All uses permitted in R-2 Districts. be permitted within one hundred (100) (2) Multifamily dwellings. feet of any property line. c. No greenhouse heating plant shall be (3) Private garages and other accessory uses operated within fifty (50) feet of the and buildings, provided that such uses are property line. clearly incidental to the principal use. 11 ArL V, ¢6.2 SALEM ZONING ORDINANCE USE REGULATIONS (d) B-1 Districts. The following are permitted (e) B-2 Districts.,The following.are permi ted uses in the neighborhood business districts: uses in the highway business districts:. j (1) All uses permitted in R-3 Districts, subject (1) All uses permitted in B-1 Districts, subject to all the provisions specified for each use. to all provisions specified for such uses, ex- (2) Grocery, fruit, vegetable and meat stores, cept that all residential uses are prohib- delicatessens. ited. (3) Bakeries,provided that all baked goods are (2) Restaurants and other eating places in sold at retail on the premises only, which alcoholic beverages may be served on the premises. (4) Drugstores. (5) Stores selling liquor, beer and wine for con- (3) Motels. sumption off the premises. (4)—Automobile service stations subject to-" (6) Newsstands and variety stores. restrictions of section 7.2. (7) Dry goods and notions stores. (5) Off-street parking and loading facilities and other accessory uses and buildings, pro- (8) Book, stationery and gift stores. vided that such uses are clearly incidental (9) Florist shops, but excluding greenhouses. to the principal use. (10) Hardware stores. (6) Supermarkets. (l 1) Banks and savings and loan institutions. (7) Retail department stores located within a shopping plaza. (12) Barber shops and beauty parlors. (8) Other accessory uses located within a shop- (13) Laundry, dry cleaning and pressing estab- ping plaza. lishments,provided that not more than five (5) persons are engaged in providing such (9) Research and development facilities. services. (10) Publishing and printing establishments. (14) Self-service laundries. (11) Warehousing and distribution. (15) Tailor and custom dressmaking shops. (12) Laboratories, provided, however, that no (16) Shoe repair shops. noxious odors are emitted. (17) Radio, television and appliance repair (13) General office buildings and other similar shops, provided that not more than three and related uses. (3) persons are engaged in performing such services. (f) B-4 Districts. The following are permitted uses in the wholesale and automotive business (18) Professional offices, medical and dental districts: clinics. (1) Automobile service stations, subject to the (19) Restaurants and other eating places which restrictions of section 7.2. do not serve alcoholic beverages consumed on the premises and including drive-in res- (2) Automobile, trailer and boat sales and ser- taurants and drive-in snack shops. vice. (20) Municipal buildings. (3) Plumbing,carpentry and sheet metal shops. (21) Off-street parking and loading facilities and (4) Printing establishments. other accessory uses and buildings, pro- (5) Sale and storage of building supplies. vided that such uses are clearly incidental to the principal use. (6) Warehousing. 12 DENSITY REGULATIONS SALEM ZONING ORDINANCE Art.VI,16.4 ARTICLE VI. DENSITY REGULATIONS for gable,hip and gambrel roofs.Fences and walls shall be measured from the finished Sec. 6.1. Residential uses. grade vertically to the highest point. (6) The limitations on height of buildings shall (a) A dwelling hereafter erected in any district not apply in any district to spires, towers, shall be located on a lot having not less than the chimneys, broadcasting and television an- minimum requirements set forth in Table I fol- tennae, ventilators, and other appurte. lowing section 6.4, and no more than one (1) nances or ornamental features usually lo- dwelling shall be built upon any such lot. No ex- cated above the roof, which features are in isting lot shall be changed in size or shape so as to no way used for living purposes,nor to farm result in a violation of the requirements set forth buildings, churches, municipal building or in Table I. institutional buildings. (b) In interpreting Table I, the following provi- (c) The provisions of Table I with respect to lot sions shall apply: area, lot width, lot coverage, yards and height of (1) The minimum front yard depth required buildings shall not apply to the islands within the shall be measured from the right-of-way line municipal boundaries of Salem as listed in section where a planof the right-of-way is on file 3.3 hereof. with the registry of deeds,or in the absence Sec. 6.2. Business and Industrial uses. of such a plan, from a line thirty-five (35) feet from and parallel with the centerline A building for business,commercial amusement of the traveled way to the front building or amusement arcade, or industrial use hereafter line. erected in a business or industrial district shall be (2) The minimum side yard width required located on a lot having not less than the min- shall be measured from the side lot line to imum requirements set forth in Table II following the side building line, and the minimum section 6.4 herein. In interpreting Table II, the rear yard depth required shall be measured same provisions for interpreting Table I shall from the rear lot line to the rear building apply' line' Sec. 6.3. Central development district uses. (3) On a corner lot, the minimum front yard depth, rather than the minimum side yard A building erected hereafter for uses permitted width,shall be applied to determine the set- in the B-5 District shall meet the requirements back of any building from lot lines abutting set forth in Table III following section 6-4 herein. any public way. In interpreting Table 1II, the same provisions for interpreting Table I shall apply. (4) The minimum lot width required shall be measured at the rear of the required front Sec. 6.4. Business Park Development Dis- yard depth and on a line parallel to the trict, right-of-way line where a plan of the right- A building erected hereafter for uses permitted of-way is on file with the registry of deeds in the Business Park Development District shall or, in the absence of such a plan, from a meet the requirements set forth in Table IV. In line twenty-five (25) feet from and parallel interpreting'I'able IV, the same provisions for in- with the centerline of the traveled way. terpreting Table I_shall apply. (5) The building height shall be measured from the average elevation of the proposed fin- ished grade at the front line of the building to the highest point of the roof for flat roofs, to the deck line for mansard roofs, and to the mean height between eaves and ridge 23 I Art.VI, $6-4 SALEM ZONING ORDINANCE DENSITY REGULATIONS TABLE I RESIDENTIAL DENSITY REGULATIONS R-C R-I R-2• R-3'• Minimum lot area (square feet) 80,000 15,000 15,000 25,000 Minimum lot area per dwelling unit (square feet) 80,000 15,000 7,500 3,500 Minimum lot width (feet) 200 100 100 100 Maximum lot coverage by all buildings (percent) 20 30 35 35 Minimum depth of front yard (feet) 40 15 15 15 Minimum width of side yard (feet) 40 10 10 20 Minimum depth of rear yard (feet) 100 30 30 30 Maximum height of buildings (feet) 35 35 35 45•' Maximum height of buildings (stories) 242 242 2�/2 342 Maximum height of fences/boundary walls (feet) 6 6 6 6 Minimum distance between buildings on lot (feet) 100 40 30 40 * These density regulations relative to height will apply to all housing projects even though fi- nanced in whole or in part by the U.S. Public Housing Administration and/or Commonwealth of Massachusetts Department of Community Affairs-Division or Public Housing. Specifically ex- cluded will be housing for the elderly constructed by the Salem Housing Authority. *' Multifamily dwellings building in R-3 Districts on lots held under a single ownership and con- sisting of a minimum of two hundred thousand (200,000) square feet may be built to a maximum height of fifty (50) feet or four (4) stories in height. Retaining walls, boundary walls and/or fences may be built abutting the property line. The height of the retaining walls, boundary walls and/or fences shall be measured on the inside face of the structure on the owner's side. Refer to section 7.7 herein for visibility at intersections. TABLE 11 BUSINESS AND INDUSTRIAL DENSITY REGULATIONS B-1 B-2 B-4 I Minimum lot area (square feet) 6,000 12,000 6,000 40,000 Minimum lot width (feet) 60 100 60 150 Maximum lot coverage by all buildings (percent) 40 25 80 45 Minimum depth of front yard (feet) 15 30 — 30 Minimum width of side yard (feet) 10 10 — 30 Minimum depth of rear yard (feet) 30 30 25 30 Maximum height of buildings (feet) 30 30 45 45 Maximum height of fences/boundary walls (feet) 10 10 10 15 24 r COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 98-P-1256 JOSEPH REITHER vs . 1 SALEM BOARD OF APPEAL. JJ MEMORANDUM AND ORDER PURSUANT TO RULE 1 : 28 t7 We agree with the trial judge that Joseph Reither' s J 3 predecessor in title, Cecile Berube, never sought, nor was she granted, a variance from the residential density requirements established in the Salem zoning ordinance with respect to lot B, the lot in question./Her petition, with respect to this lot, \,/The petition detailed the specific variances sought with regard to each of her two contiguous lots, each 5000 square feet in area, with 50 feet of frontage, described as Lot A and Lot B. As to lot A, the petition specifically requested a variance from the Residential Density Regulations, set forth in the ordinance as Table I . The petition stated " [that] the specific dimensional variances requested by the petitioner include a five thousand square foot minimum lot area, a 5000 square foot minimum lot area per dwelling unit, minimum lot width of 50 feet, and a minimum width of side yard of six feet on the easterly boundary of lot A in order to allow the existing garage to remain. " The petition differed with regard lot B, and stated "With respect to Lot B, the petitioner requests a variance from the minimum lot area requirement to allow a 5, 000 square foot minimum lot area and a maximum lot width of 50 feet . All other dimensional requirements of table 2 of section 6 [setting forth the density requirements applicable to small business and commercial districts, in which lot B lay entirely] of the Salem Zoning Ordinance would remain unvaried. " Under the ordinance, Table II, sought only a variance from the lot size and width requirements of the small business and commercial (B-1) portion of the zoning ordinance . The petition contained no request to vary the density requirements governing residences, (R1, R2 , R3) , as it did with respect to her contiguous lot A. Reither' s contention, , that there is on the record no restriction limiting the use of the lot B to a single family residence, and therefor he is entitled to a permit for a two family house, is misplaced. The zoning by-law permits, with respect to land zoned B-1, " [a] ll uses permitted in R-3 Districts (which includes by reference uses permitted in R-1 and R-2 residential districts] , subiect to all the provisions specified for each use" . (Emphasis supplied) . Any residential use of lots zoned 1113-1" for residential purposes is thus made subject to the residential density requirements applicable to such residential use, in addition to whatever restrictions apply under the "B-1" small business and commercial section of the ordinance . The residential density requirements are thus part of the "formal record" governing Reither' s use of the property. There was evidence, both in the building department' s letter Business and Industrial Density Regulations, the minimum lot area is established at 6, 000 square feet and the minimum lot width is 60 feet . 2 I denying his permit and in the decision of the Zoning Board of r Appeals upholding the denial , that, when granted, the Board intended that the variance limit the use of lot B to a single family dwelling. Reither correctly argues that he could not be bound to this condition; there is no evidence that Reither was aware of any such condition, and it was not translated into a condition on the formal record. J & R Inv. . Inc . v. City Clerk of New Bedford, 28 Mass . App. Ct . 1, 5 (1989) . The trial judge correctly ignored the verbal "omitted condition" in his analysis. A determination that this specific condition was not applicable to Reither does not excuse his need to comply with the record terms of the variance and the zoning ordinance. Gamer v. Zoning Bd. of Appeals of Newton, 346 Mass . 648 (1964) and Belmont v. Massachusetts Amusement Corp. , 333 Mass . 565 (1956) , cited by Reither, are inapposite. While not dispositive, we note as well that the endorsement, required by the planning board setting forth Berube' s agreement with respect to use . of the lot, states " [p] etitioner [Berubel agrees to Lot B being used for a residential use only. " (Emphasis supplied. ) Use of the singularity, where not otherwise needed, provides some record support for the city' s argument that a single family use only was intended; the language here might have • been better fashioned, and the condition attached to the variance 3 and not to the planning board approval . The judgment of the , Superior Court is affirmed. Judgment affirmed. By the Court (Jacobs, Porada & Gelinas, JJ. ) , Clerk Entered: June 30, 2000 4