16 SCOTIA STREET - ZBA (002) 16 SCHTIA STREET -
IL
rr \
VJ -
4 V �y'
V
J
I
��
1�
\�
1 I
Legal Notice
CITY OF SALEM
BOARD OF APPEAL
( 978-745.9595,Ext 361 -
will hold a public hearing for all per-
sons interested in the petition submit-
ted by AAA MODULAR HOMES LLC
requesting Variances from minimum
lot size and frontage to subdivide 2 {
lots Into 4 lots for the property located 1
at 16 SCOTIA STREET R-1. Said I,
hearing will be held on WEDNESDAY,
MAY 21, 2003 at 6:30 P.M., 120
WASHINGTON STREET,3rd FLOOR, i
ROOM 313.
Nina Cohen,Chairman
(5!7,14)
CC: City Solicitor - 7/17/03
Bd. of Appeals, Chairperson
Bd. of Appeals
MACCALLUM & SIMEONE, P.A.
ATTORNEYS AT LAW
THE CITIZENS BANK BUILDING _
385 BROADWAY,P.O. BOX 321
REVERE,MASSACHUSETTS 02151
BERNARD J.MACCALLUM TELEPHONE:(781)286-1560
LAWRENCE A.SIMEONE,JR. - FA (MILE:(781)286-5532
July 17"' , 2003
Deborah E. Burkinshaw W mf
c
City Clerk and c T
Clerk for the City of Salem Zoning r cn y
Board of Appeals J o r-
93
93 Washington Street "^3
Salem, MA 01970 w 0'
Y
W
Re: AAA Modular Homes, LLC v. Cohen, et al. 00
No.
Dear Ms. Burkinshaw:
Enclosed please find a Notice of Filing Complaint pursuant to M.G.L. 40A Section 17,
a copy of said complaint, a copy of the Decision of the City of Salem Zoning Board of
Appeal filed on July 2"d , 2003. Kindly stamp the enclosed copy of this letter to confirm
your receipt and return it to this office.
Very t ours,
r ce A. Simeone Jr., Esq.
c Modular Homes, LLC.
COMMONWEALTH OF MASSACHUSETTS
Essex, ss SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
DOCKET NO:
3 -14 V
AAA MODULAR HOMES LLC .
Plaintiff
V.
NINA COHEN,RICHARD DIONNE,
NICHOLAS HELIDES, BONNIE
BELIAR AND JOSEPH BARBEAU
As they are members of the City of Salem o �'
Zoning Board of Appeals, ` m
Defendants —
J �N
oD
�r
a3
W C7•
W D
NOTICE OF FILING COMPLAINT FOR JUDICIAL REVIEW co
PURSUANT TO M.G.L. c. 40A § 17
TO Deborah E. Burkinshaw
City Clerk and
Clerk for the City of Salem Zoning
Board of Appeals
93 Washington Street
Salem, MA 01970
PLEASE TAKE NOTICE that AAA Modular Homes LLC ("AAA Modular
Homes")has filed a complaint in the Superior Court of Essex County pursuant to
M.G.L.c.40A § 17, seeking judicial review of the decision of the City of Salem Zoning
Board of Appeal ("ZBA")which was filed in the office of the City Clerk for the City of
Salem on July 2"d , 2003. A true copy of the said complaint is attached.
For the Plaintiff,
AAA Modular Homes, LLC,
By its Atto fy,
L e . Simeone Jr', sq.
B O #552605
acCallum& Simeone P.A.
The Citizens Bank Building
385 Broadway,P.O. Box 321
Revere, Massachusetts 02151
(781) 286-1560
0
G n�
c_ m
c �c
Dated: July 17`h , 2003 r
cn
J �D
M
-*ice
rfi
w D
03T
COMMONWEALTH OF MASSACHUSETTS
Essex, ss SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
DOCKET NO.
AAA MODULAR HOMES LLC
Plaintiff
V. n
J
NINA COHEN,RICHARD DIONNE,
NICHOLAS HELIDES, BONNIE J o
BELIAR AND JOSEPH BARBEAU "0
As they are members of the City of Salem
Zoning Board of Appeals, w
0o
Defendants
COMPLAINT PURSUANT TO M.G.L. c. 40A, Section 17
Plaintiff, AAA Modular Homes LLC, ("AAA Modular Homes") pursuant to M.G.L. c.
40A, § 17 appeals from the decision of the City of Salem Zoning Board of Appeals
("ZBA")which denied the Plaintiffs' request for a variance from minimum lot size and
frontage dimensional regulations for 16-18 Scotia Street (`the Property") to enable the
Plaintiff to create a subdivision proposal of Lots 43, #4, #5 and #6 on Scotia Street,
Salem, Massachusetts. Said Property being located in the R-1 district, a single family
residential district under the Salem Zoning Law.
For its complaint, the plaintiff alleges as follows:
1. The Plaintiff, AAA Modular Homes, is a Massachusetts Limited Liability
corporation with a principle place of business at 501-509 Main Street, Saugus,
Massachusetts.
2. AAA Modular Homes shortly after purchasing the Property on June 16`h , 2002
discovered asbestos under the ground during excavation on the Property; the
Massachusetts Department of Environmental Protection ordered all activities to
cease and the site secured. After hiring consultants to assess the condition and
extent of hazardous material on the Property, AAA Modular Homes determined
that the clean-up cost would be greater than one hundred and fifty thousand
dollars. After review the conditions on the Property and the zoning bylaw AAA
Modular Homes filed an appeal with the ZBA.
3. At all times material hereto, AAA Modular Homes was the owner of the Property
when the request for relief herein was filed with the ZBA.
4. Said Property is located in the R-1 district, single family district, in accordance
with the Article V "Use Regulations" of the Zoning Ordinances and Zoning Map
of the City of Salem. Table I of Density Regulations for Residential Uses
establishes that the minimum lot area is fifteen thousand (15,000) square feet and
minimum lot width (frontage) is one hundred feet.
5. The Defendants are members of the City of Salem's Zoning Board of Appeal.
Their names and addresses are as follows:
Nina Cohen, Chairman,
22 Chestnut Street
Salem,MA 01970
L y ;:
Richard Dionne,
23 Gardner Street
Salem, MA 01970
Nicholas Helides,
20 Central Street
Salem,MA 01970
Bonnie Belair
113A Federal Street
Salem, MA 01970
Joseph Barbeau
48 School Street
Salem, MA 01970
6. A public hearing was conducted on May 215`, 2003 on the Plaintiff's application,
seeking a request to vary the minimum lot size and frontage dimensional
regulations in the R-1 zone to enable the Plaintiff to subdivide the Property in
order into proposed Lots# 3,#4, #5, and#6 on Scotia Street in the City of Salem.
The ZBA continued said public hearing to June 18`h, 2003,wherein it had
requested the Plaintiff to provide additional information in order to further review
Plaintiff s request for appeal.
7. Subsequently on June 12`h, 2003, the ZBA sent notice that its public hearing on
June 18`h, 2003 would be rescheduled to June 25`h , 2003. Counsel for the Plaintiff
a letter with the ZBA on June 17`h, 2003 requesting a further continuance in that
he had a conflict with the June 25`h, 2003 rescheduled date.
8. On June 25`h, 2003 at its rescheduled public hearing the ZBA found, inter alia,
that "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 AAA Modular Homes LLC purchased two lots 16-18 Scotia Street
in May, 2002. There lots were contaminated by the presence of asbestos in
underground pits apparently left by previous owners. According to the
petitioners representative Lawrence A. Simeone Jr. Esq., the cost of cleaning
and removing contaminated soil will be over$150,000.00.
2. In order to finance the cleanup, petitioner seeks variances to subdivide and
create four single family homes on the site each having square footage less
than the required 15,{0}00 square feet and each having less than the required
100 ft. of frontage.
3. Neighbors speaking in opposition to the proposed variance were Karen
Lavorti of 23 Summit St:, Deb Conway of 4 Scotia St., Robin McGlone of 30
Summit St., Andrea Peterson of 10 Scotia St., Kathleen Deleos of 9 South St.,
Rob Rennicks and Dorothy Cormier of 25 Summit St. also stated their
opposition to the proposed variance. They stated that their property was
damaged by water runoff caused by the petitioner's improper excavation and
site work. Mrs. Lavoratic confirmed that petitioner has created a dangerous
unstable condition by piling earth against a 6 ft, fence at the perimeter of her
property resulting in an abrupt change of grade between the two properties
that had not been there before. ,
4. The neighbors further stated that they have suffered anxiety as a result of the
petitioners failure to comply with state requirements for hazardous waste
cleanup, in that they may be exposed to airborne asbestos particles.
5. Ward 4 City Councillor Leonard O'Leary stated that petitioners had met with
the neighbors and had been asked to provide a plan to ensure safety vehicles
could access the proposed lots. Petitioner failed to present a plan for creating a
roadway to ensure access. Indeed, due to a schedule conflict neither the
petitioner nor his representative appeared at the hearing.
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. Special conditions do not exist which especially affect the subject property
and not the district in general.
2. Literal enforcement of the provisions of the Zoning Ordinance would not
result in unnecessary hardship to the petitioner.
3. The relief requested cannot be granted without substantial detriment to the
public good or without nullifying and substantially hardship derogating from
the intent of the district or purpose of the Ordinance. " (See attached decision
marked Exhibit A).
9. The ZBA's findings set forth in its decision of June 25`h, 2003 are un-supported
by the facts and circumstances and the ZBA's decision denying Plaintiff's request
for a variance herein was arbitrary, capricious,based on legally untenable grounds
and exceeded the authority of the Board.
10. Plaintiff, AAA Modular Homes, is a person aggrieved, within the meaning of
M.G.L. c. 40A, § 17, by the decision of denial and the findings made by the ZBA
respecting the Plaintiff's requested relief wherein Plaintiff sought and requested a
x -
i
variance of the dimensional regulations in the R-1 district under the Salem Zoning
Law.
WHEREFORE,Plaintiff, AAA Modular Homes,respectfully prays that the Court:
1. Determine that the findings made by the ZBA were arbitrary, capricious,
based upon untenable grounds and exceeded the authority of the board;
and
2. Annul the ZBA decision in that it exceeds the authority of the board; and
3. Grant such further relief as justice and equity may require.
AAA Modular Homes, LLC
By its attorney,
Lawr nce A. Simeone, Jr.,Esq.
BBO # 552605
MacCallum & Simeone
385 Broadway, P.O. Box 321
Revere,MA 02151
(781) 286-1560
Dated: July 17'h , 2003
y
f
CITY OF SALEM, MASSACHUSETTS CITY" G;- `=ALEM MA
BOARD OF APPEAL CLERK OFFICE
Ilk
120 WASHINGTON STREET, 3RD FLOOR
SALEM, MA 01970
TEL. (978) 745-9595
9e�rnrvaW' FAX (978) 740-9846 lOD) JUL -p
STANLEY J. USOVICZ, JR.
MAYOR
DECISION
OFOR THE PROPERTY MODULAR
AT 6 HOMES
COTIASTREETCSTING A
LILC UR
VARIANCE
A hearing on this petition was held on June 25, 2003, with the following Board Members
present: Nina Cohen, Chairman, Richard Dionne, Nicholas Helides, Bonnie Belair and
Joseph Barbeau. Notice of the hearing was sent to abutters and other and notices of the
hearing were properly published in the Salem Evening News in accordance with
Massachusetts General Laws Chapter 40A.
The petitioner is requesting a Variance from minimum lot size and frontage to subdivide
2 lots into 4 lots for the property located at 16 Scotia Street located in an R-1 zone.
The Variance which has been requested may be granted upon a finding of the Board
that:
ecially affect the land,
a Special conditions and or structure involved and rwh chtare not generally afances exit which fecting other lands, buildings or
structures in the same district.
b. Literal enforcement of the provisions of the Zoning Ordinance would involve
substantial hardship, financial or otherwise, to the petitioner
C. Desirable relief may 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.
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 AAA Modular Homes LLC purchased two lots at 16-18 Scotia Street in
May of 2002. There lots were contaminated by the presence of asbestos in
underground pits apparently left by previous owners. According to the
petitioner's representative Lawrence A. Simeone Jr.Esq, the cost of cleaning and
removing contaminated soil will be over $150,000.00
2. In order to finance the cleanup, petitioner seeks variances to subdivide and
create four single family homes on the site each having square footage of less
than the required 15, 00 square feet and each having less than the required 100
It of frontage.
Neighbors speakinc In opposition to the proposed variance were Karen Lavorti of
23 Summit St , Dec Conway of 4 Scotia St., Robin McGlone of 30 Summit St.,
ndrea Peterson of 10 Scotia St, Kathleen Deleos of 9 South St, Rob Rennicks
and Dorothea Comler of 25 Summit St. also stated their opposition to the
N THE
TION OF
MES LLC
DECISION
THE PRIOPERTTY AAAMODULAR
ATR16 SCOTIIA STREEOTURSTING A
page two
proposed variance. They stated that their property was damaged by water runoff
caused by petitioner's improper excavation and site work. Mrs. Lavoratic confirmed
that petitioner has created a dangerously unstable condition by piling earth against a
6 ft fence at the perimeter of her property resulting in an abrupt change of grade
between the two properties that had not been there before
4. The neighbors further stated that they have suffered anxiety as a result of the
petitioner's failure to comply with state requirements for hazardous waste
cleanup, in that they may be exposed to airborne asbestos particles.
S. Ward 4 City Councillor Leonard O'Leary stated that petitioners had met with the
neighbors and had been asked to provide a plan to ensure safety vehicles could
proposedaccess the
failed
roadway to ensure access.PIndeed,rdue o a present l
schedule conflict nflict neither the
petitioner nor his representative appeared at the hearing.
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. Special conditions do not exist which especially affect the.subject property and not
the district in general.
2. Literal enforcement of the provisions of the Zoning Ordinance would not result in
unnecessary hardship to the petitioner.
3. The relief requested cannot be granted without substantial detriment to the public
good or without nullifying and substantially hardship derogating from the intent of the
district or purpose of the Ordinance.
Therefore, the Zoning Board of Appeal voted 5 in opposition to grant the requested
variances. Having failed to garner the four affirmative votes required to pass, the motion
is defeated and the petition is denied.
VARIANCE DENIED1
JUNE 25, 2003
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 the 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 passed 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 owners Certificate of Title.
Board of Appeal
;
5
i
(� caxwr CITY OF SALEM MASSACHUSETTS CI I Y OF SALEM, MA
BOARD OF APPEAL CLrKR 6 OFFICE
120 WASHINGTON STREET, 3RD FLOOR
aAl IfF o. SALEM, MA 01970
TEL. (978) 745-9595
FAX (978) 740-9846 -1003 JUL 2 P
STANLEY J. USOVICZ, JR.
MAYOR
DECISION ON THE PETITION OF AAA MODULAR HOMES LLC REQUESTING A
VARIANCE FOR THE PROPERTY LOCATED AT 16 SCOTIA STREET R-1
A hearing on this petition was held on June 25, 2003, with the following Board Members
present: Nina Cohen, Chairman, Richard Dionne, Nicholas Helides, Bonnie Belair and
Joseph Barbeau. Notice of the hearing was sent to abutters and other and notices of the
hearing were properly published in the Salem Evening News in accordance with
Massachusetts General Laws Chapter 40A.
The petitioner is requesting a Variance from minimum lot size and frontage to subdivide
2 lots into 4 lots for the property located at 16 Scotia Street located in an R-1 zone.
The Variance which has been requested may be granted upon a finding of the Board
that:
a. Special conditions and circumstances exit which especially affect the land, building
or structure involved and which are not generally affecting other lands, buildings or
structures in the same district.
b. Literal enforcement of the provisions of the Zoning Ordinance would involve
substantial hardship, financial or otherwise, to the petitioner
c. Desirable relief may 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.
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 AAA Modular Homes LLC purchased two lots at 16-18 Scotia Street in
May of 2002. There lots were contaminated by the presence of asbestos in
underground pits apparently left by previous owners. According to the
petitioner's representative Lawrence A. Simeone Jr.Esq, the cost of cleaning and
removing contaminated soil will be over $150,000.00
2. In order to finance the cleanup, petitioner seeks variances to subdivide and
create four single family homes on the site each having square footage of less
than the required 15, 00 square feet and each having less than the required 100
ft of frontage.
3. Neighbors speaking in opposition to the proposed variance were Karen Lavorti of
23 Summit St., Deb Conway of 4 Scotia St., Robin McGlone of 30 Summit St.,
Andrea Peterson of 10 Scotia St, Kathleen Deleos of 9 South St, Rob Rennicks
and Dorothea Cornier of 25 Summit St. also stated their opposition to the
DECISION ON THE PETITION OF AAA MODULAR HOMES LLC REQUESTING A
VARIANCE FOR THE PROPERTY LOCATED AT 16 SCOTIA STREET R-1
page two
proposed variance. They stated that their property was damaged by water runoff
caused by petitioner's improper excavation and site work. Mrs. Lavoratic confirmed
that petitioner has created a dangerously unstable condition by piling earth against a
6 ft fence at the perimeter of her property resulting in an abrupt change of grade
between the two properties that had not been there before
4. The neighbors further stated that they have suffered anxiety as a result of the
petitioner's failure to comply with state requirements for hazardous waste
cleanup, in that they may be exposed to airborne asbestos particles.
5. Ward 4 City Councillor Leonard O'Leary stated that petitioners had met with the
neighbors and had been asked to provide a plan to ensure safety vehicles could
access the proposed lots. Petitioner failed to present a plan for creating a
roadway to ensure access. Indeed, due to a schedule conflict neither the
petitioner nor his representative appeared at the hearing.
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. Special conditions do not exist which especially affect the subject property and not
the district in general.
2. Literal enforcement of the provisions of the Zoning Ordinance would not result in
unnecessary hardship to the petitioner.
3. The relief requested cannot be granted without substantial detriment to the public
good or without nullifying and substantially hardship derogating from the intent of the
district or purpose of the Ordinance.
Therefore, the Zoning Board of Appeal voted 5 in opposition to grant the requested
variances. Having failed to garner the four affirmative votes required to pass, the motion
is defeated and the petition is denied.
VARIANCE DENIED
JUNE 25, 2003
Nina Cohen, Chairman
Board of Appeal
r
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 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 passed 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 owners Certificate of Title.
Board of Appeal
CITY OF SALEM9 MASSACHUSETTS
BOARD OF APPEAL
120 WASHINGTON STREET, 3RD FLOOR
SALEM, MA 01970
Esq TEL. (978) 745-9595
- FAX (978) 740-9846
STANLEY J. LISOVICZ, JR.
M ay 21, 2003
Lawrence A. Simeone, Jr., Esq.
MacCallum & Simeone, P.A.
The Citizens Bank Building
385 Broadway, b
Revere, MA 02151
RE: Land at 16-18 Scotia Street, Salem
Dear Mr. Simeone,
Please be advised that there was significant opposition to your request to continue
the above petition at the May 21, 2003 meeting of the Salem Zoning Board of Appeal.
The Board's decision to allow the continuance was subject to the following conditions.
1) Due to the hazardous condition of the site, no further continuances will be
allowed. If it is not withdrawn, the petition will be decided by the Board at the June 18,
2003 meeting.
2. You are further requested to advise your client to provide the Board with a
detailed plan for remediation of the existing unhealthy conditions on the land. Three
conditions were discussed at our prior hearing on this property. These are the removal of
hazardous materials including asbestos unearthed by your client during site preparation,
the restoration of previously existing grade relative to surrounding properties and the
appropriate plan to remediate the nuisance created by water run-off from the site onto
surrounding properties.
3. Prior to considering a petition for additional density the Board had requested your
client to provide detailed plans for street and driveway layout of prospective homes, to
enable us to judge whether emergency vehicles would be able to gain access to them.
These plans should be made available to Board members prior to the June 18 meeting.
This site presents a unique challenge to development, but we hope to work
together with your client to resolve outstanding issues. Please refer any questions
regarding this project to the Building Commissioner's office.
Sincerely.
Nina V. Cohen, Chairman
Zoning Board of Appeal