8-10 WINTER STREET - ZBA D
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TOD JOHNSON & MARCIA MUSGRAGE - -
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COPYY TO BOA (1/7/97)
COMMONWEALTH OF MASSACHUSETTS
Essex Division Trial Court
Superior Court Department
Civil Action No. .,
i 7 00 2-
ANN SWEETEN, )
Plaintiff )
)
VS. ) COMPLAINT
TOD JOHNSON, MARCIA MUSGRAVE )
GARY BARR.ETT, NINA COHEN, )
RICHARD DIONNE, ALBERT HELL, ) _
PAUL VALASKATGIS, AND )
CITY OF SALEM, ) x
r
Defendants ) N
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r _
1. Plaintiff, Ann Sweeten, is an individual who resides at 20 Oliver Street, Salem,
Essex County, Massachusetts.
2. Defendant, Tod Johnson, is an individual who resides at 8-10 Winter Street,
Salem, Essex County, Massachusetts.
3. Defendant, Marcia Musgrave, is an individual who resides at 8-10 Winter
Street, Salem, Essex County, Massachusetts.
4. Defendant, Gary Barrett, a member and the Chairman of the Board of Appeals
for the City of Salem, Massachusetts (hereinafter referred to as the 'Board"),
is an individual who resides at 7 Patton Road, Salem, Essex County,
Massachusetts.
5. Defendant, Nina Cohen, a member of the Board, is an individual who resides
at 22 Chestnut Street, Salem, Essex County, Massachusetts.
6. Defendant; Richard Dionne, a member of the Board, is an individual who
resides at 23 Gardner Street, Salem, Essex County, Massachusetts.
7. Defendant, Albert Hill, a member of the Board, is an individual who resides
at 4 Larkin Lane, Salem, Essex County, Massachusetts.
8. Defendant, Paul Valaskatgis, an associate member of the Board, is an
individual who resides at 24 Gable Circle, Salem, Essex County,
Massachusetts.
9. The defendants, Gary Barrett, Nina Cohen, Richard Dionne, Albert Hill, and
Paul Valaskatgis, constitute the duly appointed members and associate
members of the Board of Appeals for the City of Salem (said defendants shall
hereinafter be collectively referred to as "the Board").
10. Defendant, City of Salem, is a municipal corporation established and existing
under the laws of the Commonwealth of Massachusetts.
11. This action is an appeal brought pursuant to M.G.L. c.40A, Section 17 for
judicial review of a decision of the Board, which decision was filed with the
City Clerk for the City of Salem on December 19, 1996 (hereinafter referred to
as "the Decision"). A certified copy of the Decision is incorporated herein by
reference and attached hereto as Exhibit A.
12. Plaintiff is a person aggrieved within the meaning of M.G.L. c.40A, Section 17,
by the Decision of the Board in granting a variance to defendants, Tod Johnson
and Marcia Musgrave, as to the real property located at 8-10 Winter Street,
Salem, Essex County, Massachusetts (hereinafter referred to as "the Locus").
13. On or about November 5, 1996, the defendants, Tod Johnson and Marcia
Musgrave, filed with Board a petition for the granting of a variance as to the
Locus wherein they requested permission to expand a non-conforming
structure.
14. Thereafter a hearing was held before the Board on December 11, 1996.
15. At the conclusion of said hearing the Board, by a vote of five affirmative and
zero negative, voted to grant the requested variance to defendants, Tod
Johnson and Marcia Musgrave.
16. The Decision of the Board exceeds the authority of the said Board.
17. The reasons for the findings set forth in the Decision are insufficient in law to
warrant the granting of the variance to the defendants, Tod Johnson and
Marcia Musgrave, and the Decision does not constitute a decision supported
by proper reasons as required by M.G.L. c.40a, Section 10 and Section 15.
WHEREFORE, plaintiff demands that this Honorable Court:
1. After hearing all evidence pertinent to the authority of the Board, determine
the facts, and upon the facts so determined, annul the Decision of the Board
on the grounds that said Decision exceeds the authority of said Board; and,
2. Make such other decree as justice and equity may require.
Dated: January 6, 1997 Ann Sweeten,
by her attorney,
Robert F. Peck, Jr.
BBO#393040
199 Rosewood Drive
Suite 350
Danvers, MA 01923
Tel.(508)777-5100
of Lttlem, Hussttcllusetts
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DECISION OF THE PETITION OF TOD JOHNSON & MUSGRAVES4LQEISwiFjr't_ .,
FOR THE PROPERTY LOCATED AT 8-10 WINTER STREET (R-2)
A hearing on this petition was held December 11, 1996 with the following
Board members present: Gary Barrett; Chairman, Nina Cohen, Richard Dionne.
Albert Hill and Paul Valaskatgis. 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, requests a Variance to expand a non-conforming structure to add
a dormer for the property located at 8-10 Winter Street .
The Variance which has been requested may be granted upon a finding of this
Board that:
1 . Special conditions and circumstances exist which especially affect the
land, building or structure involved and which are not generally affecting
other land, buildings, or structures in the same district.
2 . Literal enforcement of the provisions of the Zoning Ordinance would
involve substantial hardship, financial or otherwise, to the petitioner .
3. Desirable relief may be granted without substantial detriment to the
public good and without nullifying or substantially derogation from the
intent of the district or the purpose of the Ordinance.
The Board of Appeal , after careful considerations the evidence presented at
the hearing, makes the following findings of fact:
1. Petitioners own a two-family residence at 8-10 Winter Street.
2. Petitioners seek a variance to build an additional room or rooms onto
the third floor without changing the building's footprint by raising
the roof line at the rear of the building. Petitioners plan to add
windows and to finish the addition with wood shingles in order to
maintain the appearance of the original house.
3. Two neighbors offered their support for the petitioner' s plan:
Jane Lyness of 22 Oliver St. , and Paul Herrick of 12 Winter St.
4 . Three neighbors opposed the proposed variance on the grounds that they
felt it would lower their property values and reduce the light and air
their property received. These were Ann Sweeton and Randy Yoder of
20 Oliver St. , and Joan Duhaime of 18 Oliver St.
On the basis of the above findings of fact, and on the evidence presented
at the hearings, the Board of Appeal concludes as follows:
1 . Special conditions exist which especially affect the subject property
and not the district in general.
2 . Literal enforcement of the provisions of the Zoning Ordinance would
involve substation hardship to the petitioner.
EXHIBIT A
DECISION OF THE PETITION OF TOD JOHNSON & MARCIA MUSGRAVE REQUESTING
A VARIANCE FOR THE PROPERTY LOCATED AT 8-10 WINTER STREET (R-2 )
page two
3 . Desirable relief can be granted without substantial detriment t0
public good and without nullifying and substantially derogating from
the intent of the district or purpose of the Ordinance.
On the basis of the above findings of fact, and on the evidence present.d
at the hearing, the Zoning Board of Appeal voted unanimously, 5-0 to grant
the variance requested, sub;ect to the following conditions:
1 . Petitioner shall comply with all city and state statures , ordinances .
codes and regulations .
2. All construction shall be done as per pians and dimensions submitted to
and approved per the Building Inspector.
3. All requirements of the Salem Fire Department relative to stoke and
fire safety shall be strictly adhered to.
Petitioner shall obtain a building permit prior to beginning any
construction.
5. Exterior finishes of the new construction shall be in harmony with
the existing structure.
6. A Certificate of Occupancy is to be obtained.
Variance Granted
December 11 , 1996
Nina Cohen, Member
Board of Appeal
A. COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE
CLERK
Appeal from this decision, if any, shall be made pursuant to Sect-'on 1' of
the Massachusetts General Laws Chapter 60A, and shall be filed within 20
days after the date of filing of this decision in the office of the Cita
Clerk. Pursuant to Massachusetts General Laws Chapter 'OA, Section 11 , the
Variance or Special Permit granted herein shall not take effect until a
copy of the decision bearing the certification of the City Clerk that 20
days have elapsed and no appeal has been filed, or that, if such appeal has
been filed, that it has been dismissed or denied is recorded in the South
Essex Registry of Deeds and indexed under the name of the owner of record
or is recorded and noted on the owner's Certificate of Title.
Board of Appeal
A.Z Oe ATTR
CITY CLERK
SALEM, MASS.
ofttlem, ��Httssttcliusetts
a4 s Bourb of Au}1en1 (
C/Ty O �`� u
DECISION OF THE PETITION OF TOD JOHNSON & MUSGRAVES Rf&t4LFA�i% SANCE
FOR THE PROPERTY LOCATED AT 8-10 WINTER STREET (R-2)
A hearing on this petition was held December 11, 1996 with the following
Board members present: Gary Barrett; Chairman, Nina Cohen, Richard Dionne,
Albert Hill and Paul Valaskatgis. 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, requests a Variance to expand a non-conforming structure to add
a dormer for the property located at 8-10 Winter Street.
The Variance which has been requested may be granted upon a finding of this
Board that:
1. Special conditions and circumstances exist which especially affect the
land, building or structure involved and which are not generally affecting
other land, buildings, or structures in the same district.
2. Literal enforcement of the provisions of the Zoning Ordinance would
involve substantial hardship, financial or otherwise, to the petitioner.
3. Desirable relief may be granted without substantial detriment to the
public good and without nullifying or substantially derogation from the
intent of the district or the purpose of the Ordinance.
The Board of Appeal, after careful considerations the evidence presented at
the hearing, makes the following findings of fact:
1. Petitioners own a two-family residence at 8-10 Winter Street.
2. Petitioners seek a variance to build an additional room or rooms onto
the third floor without changing the building's footprint by raising
the roof line at the rear of the building. Petitioners plan to add
windows and to finish the addition with wood shingles in order to
maintain the appearance of the original house.
3. Two neighbors offered their support for the petitioner's plan:
Jane Lyness of 22 Oliver St. , and Paul Herrick of 12 Winter St.
4. Three neighbors opposed the proposed variance on the grounds that they
felt it would lower their property values and reduce the light and air
their property received. These were Ann Sweeton and Randy Yoder of
20 Oliver St. , and Joan Duhaime of 18 Oliver St.
On the basis of the above findings of fact, and on the evidence presented
at the hearings, the Board of Appeal concludes as follows:
1. Special conditions exist which especially affect the subject property
and not the district in general.
2. Literal enforcement of the provisions of the Zoning Ordinance would
involve substation hardship to the petitioner.
DECISION OF THE PETITION OF TOD JOHNSON & MARCIA MUSGRAVE REQUESTING
A VARIANCE FOR THE PROPERTY LOCATED AT 8-10 WINTER STREET (R-2)
page two
3. Desirable relief can be granted without substantial detriment to
public good and without nullifying and substantially derogating from
the intent of the district or purpose of the Ordinance.
On the basis of the above findings of fact, and on the evidence presented
at the hearing, the Zoning Board of Appeal voted unanimously, 5-0 to grant
the variance requested, subject to the following conditions:
1. Petitioner shall comply with all city and state statures, ordinances,
codes and regulations.
2. All construction shall be done as per plans and dimensions submitted to
and approved per the Building Inspector.
3. All requirements of the Salem Fire Department relative to smoke and
fire safety shall be strictly adhered to.
4. Petitioner shall obtain a building permit prior to beginning any
construction.
5. Exterior finishes of the new construction shall be in harmony with
the existing structure.
6. A Certificate of Occupancy is to be obtained.
Variance Granted
December 11, 1996
CSc"��
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 it has been dismissed or denied is recorded in the South
Essex Registry of Deeds and indexed under the name of the owner of record
or is recorded and noted on the owner's Certificate of Title.
Board of Appeal
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APPEAL CASE NO. . . . . . . . . . . . . .
hoard rrf �u eul
TO THE BOARD OF APPEAL:
The Undersigned represent that he/she is/are the owners of a certain parcel of land J
r=
located at: . . ;�Q,•W;to�FSt. S�... �
• • • • . .. .. .. .Street; Zoning District.... t��
and said parcel is affected by Section(s). . .... .. . .. .. ... ... . . . of the Massachusett!,
State Building Code.
Plans describing- the work proposed have been submitted to the Inspector of Buildings
in accordance with Section i% A.1 of the Zoning Ordinance.
n
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amu+
The Application for Permit was denied by the Inspector of Buildings for the following
reason(s):
,J�t`e-c3 �E.1q-tom
The Undersigned hereby petitions the Board of Appeal to vary the terms of the Salem
Zoning Ordinance and/or the Building Code and order the Inspector of Buildings to
approve the application fee permit to build as filed, as the enforcement of said
Zoning By—Laws and Building Code would involve practical difficulty or unnecessary
hardship to the Undersigned and relief may be granted without substantially derogating
from the intent and purpose of the Zoning Ordinance and Building Code for the follow—
ing reasons:
Owner..
Address. .. . .. :
Telephone. . .�?'z.;&�
. . . ... .... . . . . . . . ... ... .
Petitioner. . . ..P',P'.
(, Address. .. . .. . .. . .. . . .. . . ..... . ... . . . . . .
Date.. . 1 -��`•,•�• Te le p
By
Three copies of the application must be filed with the Secretary of the Board of Appeal
with a check, for advertising in the amount of $... .. ..
„E _ - .. . . . four weeks prior to the
2he_1 (TP Appeal, Check payable to the Salem Evening News.
NO. . . . . . . . . . . . . . . . . . .
PETITION TO BOARD OF APPEALS
LOCATION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Petitioner. . . . . . . . . . . . . . . . . . . . . . .
Address. . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . .
CONDITIONS
. . . . . . . . . . . . . . . . . . . . . . .
� . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
PETITION 4PPROVED. . . . . . . . . . . . . ( )
DENTED. . . . . . . . . . . . . ( )
Date: . . . . . . . . . . . . 19 . . . .
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REFERENCE.—
OL ) VER STREET PLOT PLAN OF LAND
OEED: . REC. BK. PG. LOCATED IN
PLAN: 64/8/1972-
51")L EM
PREPARED FOR
n -J-AM ES 8A(LEY
T: 72-,� 199,3
SCALE: 1 "= to CCT: 72-,'
DATE REG. PROFESSIONAL LAND SQ���P� "A°sq�yG
GAIL N� NORTH SHORE SURVEY CORP.
L- N 209 WASHINGTON ST.— SALEM , MA.
SMITH
., No.35043
9�".9FG/STE`�O ,tea
cSs��NAL IAN�SJP
�11 Herrick & Company DECEMBER 10, 1996
CITY OF SALEM
BOARD OF APPEAL
ONE SALEM GREEN
SALEM, MA 01970
RE: TOD JOHNSON AND MARCIA MUSGRAVE
8-10 WINTER ST.
SALEM, MA 01970
AS A DIRECT ABUTTER TO THE ABOVE REFERENCED PROPERTY, I
STRONGLY SUPPORT THEIR EFFORTS TO ADD A DORMER TO THEIR HOME.
THEIR HOME IS AN ASSET TO THE NEIGHBORHOOD AND RECENTLY
WON AN AWARD FOR EXCELLENCE IN RENOVATION.
I STRONGLY BELIEVE THE CITY SHOULD SUPPORT THEIR REQUEST.
SINCERE,
PAUL J. HERRICK, TRUSTEE
HRX SALEM REALTY TRUST
12 WINTER ST.
SALEM,MA 01970
(508) 744-1200 EXT, 12
60 Washington Street,Salem,Massachusetts 01410
Telephone(508)744-1200
DATE Or F-7.=RING 2 /
PETITIONER
LOCATION b Q
MOTION: 70 GRANT SECOND AMENDMENT SECOND
TO DENY SECOND
TO _RE-HEAR_ SECOND
WITHDRAW SECOND
I
CONTINUE SECOND
I
ROLL CALL PRESENT GRANT DENY -QED.-D WITHDRAW RE-HEAR CONTI!
GARY hi. BARRETT
ALBERT C. HILL C
JOSEPH YWU
NINA V. COHEN
RICHARD DIONNE
ASSOCIATE MEMBERS
ARTHUR LEBRECQUE
PAUL VALASKATGIS
CONDITIONS: _