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12 WILLISON STREET - ZBA (2) 12 WILLSOH STREET - JOSEPH C. REITHER �J �y ` v L V i 1 I I Leg7Permit ice i- CITYEM BOARPEAL Will hold a earing for all persons interee petition sub mitted by JO . REITHER - requesting a Srmit pursuantto Article IX, 9-4 (b) whichwould allow the bung to-be used as a two-family for the property located + at 12 WILLSON STREET (R-2/B-1). Said hearing to be held WEDNES- DAY,NOVEMBER 18, 1998 AT 6:30 P.M., ONE SALEM GREEN, 2nd floor. Nina Cohen,Chairman COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 98-P-1256 JOSEPH REITHER vs . l SALEM BOARD OF APPEAL. �J MEMORANDUM AND ORDER PURSUANT TO RULE 1 :28 We agree with the trial judge that Joseph Reither' s J predecessor in title, Cecile Berube, never sought, nor was she 3 granted, a variance from the residential density requirements established in the Salem zoning ordinance with respect to lot B P , the lot in estion.�/Her 4u 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, 1 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, 11 [a] ll uses permitted in R-3 Districts [which includes by reference uses permitted in R-1 and R-2 residential districts] , subject to all the provisions specified for each use" . (Emphasis supplied) . Any residential use of lots zoned "B-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-111 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 denying his permit and in the decision of the Zoning Board of 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 c y 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 (Berube] 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 i Superior Court is affirmed. Judgment affirmed. By the Court (Jacobs, Porada & Gelinas, JJ. ) , Clerk Entered: June 30, 2000 4 .a iTY Q `ALEM. MA r ``�; f�i# IIf ttlpm, ttsstttljusP##s L Er `'S o�r ICE 3 - 'oQ PnurD of A upeal 1998 NOV 25 A 1I: 3� DECISION ON THE PETITION OF JOSEPH REITHER REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 12 WILLSON STREET R1\Bl A hearing on this petition was held November 18, 1998 with the following Board Members present: Nina Cohen, Chairman, Richard Dionne, Stephen Buczko, Ronald Harrison and Michael Ward. 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 are requesting a Special Permit pursuant to Article IX, Section 9-4 (b) which would allow the building to be used at a two (2) family dwelling. In accordance with Section 5-3 (j ) , the change of use requested is not more detrimental to the neighborhood than the existing six (6) family use. In addition, the Special Permit may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent and purpose of the zoning ordinance, as required by Section 8-6 . The provision of the Salem Zoning Ordinance which is applicable to this request for a Special Permit is Section 5-3(j ) , 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 Sections 8-6 and 9-4, grant Special Permits for alterations and reconstruction of nonconforming structures, 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 Board is , when reviewing Special Permit requests, guided by the rule that a 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 at the hearing and after viewing the plans , makes the following findings of fact: 1 . Petitioner is the-'owner of the land and buildings at 12 Willson Street. In April of 1997 petitioner sought an administrative ruling form this Board to reverse the Building inspectors finding that the legal use of the property was as a single family dwelling. DECISION OF THE PETITION OF JOSEPH C REITHER REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 12 WILLSON STREET page two 2. Petitioner made a timely appeal from the Board's April 1997 ruling. During the course of the ensuing lawsuit, the Court asked the City of Salem to enter into mediation with petitioner. While in mediation the parties agreed that, in an effort to resolve the dispute, the petitioner would apply to this Board for a special permit to allow the building to be used as a two family. 3. Petitioner who is represented by Attorney Kevin T. Daly of Salem stated that the building is equipped as a two family, that the surrounding homes include many that are two families and even multiple family dwellings and that available off-street parking would accommodate three vehicles . 4 . In opposition, Steve Lerman, trustee of M & L Realty Trust at 250 Jefferson Avenue, stated that his property is adversely affected by water flow from the 12 Willson Street property, which worsened when the subject house was installed on the lot, and that he believed the problem would be exacerbated by the hot-topping of the driveway area thereon. 5. Also speaking in opposition were Erie Soper, who stated that the permit allowing the building to be used as a two family would increase density and congestion, worsen traffic conditions for the surrounding homes, and would increase the likelihood that the building would become absentee landlord owner. All these factors would be detrimental to the neighborhood. o. Robert Lemelin spoke in opposition, stating that traffic conditions on Willson Street had worsened in recent years, increasing the number of traffic accidents . 7 . Tony Lysiak, of 258 Jefferson Ave. and Ann and Rena Pelletier of 3 Horton Street, also opposed the petition because it would increase congestion in the neighborhood, worsen existing parking problems, and exacerbate the water flow off the property. 8. Joan Lovely, Ward Councillor for Ward 3, opposed the granting of petitioner petition, stating that the proposed driveways would increase the neighbor's drainage problems and would detrimentally affect density and congestion in the area. On the basis of the above findings of fact, and on the evidence presented, the Board of Appeal concludes as follows : 1. The Special Permit requested cannot be granted without substantial detriment to the public good or without nullifying and substantially derogating from the intent of the district or the purpose of the ordinance. c- m N Ul Cn cr, D �, w m cr7 D DECISION OF THE PETITION OF JOSEPH C. REITHER REQUESTING A SPECIAL PERMIT FOR THE PROPERTY LOCATED AT 12 WILLSON STREET page three 2. The granting of the Special Permit requested will not be in harmony with the neighborhood and will not promote the public health, safety,convenience and welfare of the City's inhabitants. Therefore, the Zoning Board of Appeal voted 0 in favor, and 5 in opposition to the motion to grant the relief requested. Having failed to garner the four affirmative votes required to pass, the motion to grant fails and the petition for a Special Permit is denied. SPECIAL PERMIT DENIED November 18 , 1998 Nina Cohen, Chairman 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 MGL 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 MGL 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 or Deeds and indexed under the name of the owner of record or is recorded and noted on the owner 's Certificate of Title. c. Board of Appeal Q, n cn o r- n rrn D �3 rn s W D U1 (fitp of *atem, Aafsgarbuatt,5 Office of the City Council t � Citp )[)all COUNCILLORS-AT-LARGE LEONARD F.O'LEARY WARD COUNCILLORS PRESIDENT 1998 1998 JOHN J.DONAHUE DEBORAH E. BURKINSHAW PETER L.PASKOWSKI THOMAS H.FUREY CITY CLERK REGINA R.FLYNN KEVIN R.HARVEY JOAN B.LOVELY SCOTT J.MCLAUGHLIN LEONARD F.O'LEARY WILLIAM A.KELLEY SARAH M.HAYES MARK E.BLAIR November 18, 1998 Board of Appeal City of Salem Salem, MA Dear Sirs : I would like to be recorded as strongly opposed to the , petition of Joseph C . Reither, requesting a Special Permit pursuant to Article IX, Section 9-4 (B) , allowing the building at 12 Wilson Street to be used as a two family home. The history of this project is that the neighborhood had been given assurances by the previous Board that this would be a single family home. The actions taken by the current petitioner is in conflict with what the neighborhood and the abutters would like to see as a project at that location. Yours truly, KEVIN R. HARVEY COUNCILLOR-AT-LARGE