MOONEY ROAD & DURKIN ROADS - ZBA MOONEY ROAD AND DURKIN ROAD
DEIULIS BROTHERS (RC/R1 )
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AMENDMENT TO THE DECISION OF MOONEY ROAD & DURKIN ROAD(
DECISION OF THE PETITION OF DEIULIS BROTHERS CONSTRUCTION FOR A
MODIFICATION OF THE BOARDS DECISION OF MARCH 1992, REGARDING THE
PROPERTY LOCATED AT MOONEY ROAD AND DURKIN ROAD (RC\R1 )
A hearing on this petition was held May 17, 1995 with the following Board
members present: Stephen Touchette, Chairman; Gary Barrett, .Albert Hill, ._
Nina Cohen and Arthur LaBrecque. 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.
A hearing on this petition was originally held on March 15, 1995. Because
of an error made by this Board, improper notice, of the prior hearing was
given to the neighbors, and a rehearing of the petition was granted. The
rehearing of the petition was held on May 17, 1995.
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 . in March 1993, petitioner was granted a variance by this Board from
lot size and frontage with respect to lots which were located, entirely
in an RC district (2) partially within an RC district and partially
within an R1 district (3) and entirely within an R1 district.
2. The variance granted in March 1993, permitted the petitioner to divide
the aforementioned lots in conformance with the requirements of R1
zoning.
3. The conditions which existed at the time of the granting of the
previous variance continue to exist at present (vi, the redrawn RC
zone effectuated in 1973 or 1974 by the city) and create a hardship
upon the petitioner.
4 . In its March 1993 decision, the Board incoroporated a document entitled
Sable Heights II, Protective Covenants as part of the decision.
5 . it is the Sable Heights II Protective Covenants which the Petitioner
now seeks to modify in part as follows:
a) Change the minimum living area in the proposed dwelling from
2,000 sq.ft. to 1,500 sq. ft.
b) Change minimum footprint of the proposed dwelling from
1,000 sq. ft. to exclusive of garage to 1,000 sq. ft. inclusive
of garage.
c) Change the minimum roof pitch from 6:i2 to 4 : i2.
DECISION OF DEIULIS BROTHERS CONSTRUCTION FOR THE
PROPERTY LOCATED ON MOONEY ROAD AND DURKII• ROAD (RC\R1)
page two
d? Delete the paragraph requiring that shutter, if used be wood.
6 . --n September 1993, the petitioner obtained approvals from the Planning
3oard and proceeded with construction of the development, installing
underground utilities, drainage systems and roads to the binder course
at a cost to the petitioner in excess of $120,000.
7. Of the 1'• existing homes in the neighborhood, 8 have living space of
'less than 1500 sq. ft; 3 are of between 1500-1800 sq. ft. ; 1 is between
1800-2000 sq. ft. and 3 are in excess of 2000 sq. ft. of living space.
8. -here are 2 other buildable lots in the neighborhood which are not
subject to restrictive covenants similar to those set forth in the
Sable Heights II Protective Covenants .
9. Petitioner represented that on January 25, 1995, a letter was sent to
all neighbors in the Mooney and Durkin Road neighborhood advising them
of the Petitioner's intent to seek modification of the Sable Heights
II Protective Covenants. A copy of said letter was made a part of the
record.
10. In response to said January 25th letter, the Petitioner was contacted
by a couple of neighbors who discussed their concerns about the
Petitioner's plans.
11. On February 15, 1995, Petitioner again wrote the Mooney and Durkin
Road neighbors inviting them to attend a meeting to discuss in detail
the pians to seek modification of the Sable Heights II Protective
Covenants.
12. On March 1, 1995, Petitioner held a meeting to discuss their plans
with the neighbors. At said meeting, two residents of the neighbor-
hood attended and expressed their concerns about the Petitioner's
plans.
13. Th Petitioner' s land runs along and/or lies beneath high tension
electrical wires.
14. The Petitioner represented that to construct a home with a 2000 sq.ft.
living area that it would be necessary to build a 2 story home on some
of the lots.
15. The requested changes to the protective convents are reasonable and
modest of nature.
16. :r. & Mrs . Fierstein, abutters to the property spoke in opposition .
17. F. . Pygolski, 2 Durkin Road, spoke in opposition.
18. .- petition signed by 18 neighbors of the property opposed the petition.
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.
3. -he request 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.
Therefore. the Zoning Board of Appeal voted 2-3, against the motion to
grant, having failed to garner the required four affirmative votes to pass,
the -otion is defeated and the petition is denied.
DECISION OF THE PETITION OF DEIULIS BROTHERS CONSTRUCTION FOR
THE PROPERTY LCCATED AT MOONEY ROAD AND DURKIN ROAD CRC\R1)
page three
MODIFICATION DENIED
May 17, 1995
Gary Barrett, i°ember
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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DECISION ON THE PETITION OF DEIULIS BROTHERS CONSTRUCTION FOR A
MODIFICATION OF THE BOARDS DECISION OF MARCH 1-992, REGARDING THE '.; p r:
PROPERTY LOCATED AT MOONEY ROAD AND DURKIN ROAD (RC/R1)
A hearing on this petition was held March 15, 1995 with the following Board
members present: Gary M. Barrett, Chairman(acting) ; Arthur Labreque, Joseph
Ywuc, Nina Cohen and Albert Hill. 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, owner of the property located at Nos. 25,27,28,29, and 31
Mooney Road and 6,7, and 8 Durkin Road, was requesting a modification of
the terms of the decision the Board of Appeals dated March 10, 1992.
The relief 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 refuel 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. In March 1993, Petitioner was granted a variance by this Board from
lot size and frontage with respect to lots which were located: entirely
in an RC district(2) , partially within an RC district and partially
within an R-1 district (3 ) and entirely within an R-1 district (3) .
2. The variance granted in March 1993 permitted the Petitioner to
divide the aforementioned lots in conformance with the requirements
of R-1 zoning.
3. The conditions which existed at the time of the granting of the
previous variance continue to exist at present(viz,the redrawn RC zone
effectuated in 1973 or 1974 by the City) and create a hardship upon
the Petitioner.
A. In its March 1993 decision, the Board incorporated a document entitled
Sable Heights I1, Protective Covenants as part of the decision.
5. It is the Sable Heights 11 Protective Covenants which the Petitioner
now seeks to modify in part as follows:
a) Change to the minimum living area in the proposed dwelling from
2,000 sq.ft. to 1.500 sq. ft;
b) Change to the minimum footprint of the proposed dwelling from
1,000 sq.ft. to exclusive of garage to 1,000 sq. ft inclusive
of garage;
DECdSION OF THE PETITION OF DEIULIS BROTHERS CONSTRUCTION FOR A
MODIFICATION OF THE BOARD'S DECISION OF MARCH 1992, REGARDING THE
PROPERTY LOCATED AT MOONEY ROAD AND DURKIN ROAD (RC/R/1)
page two
c) Change the minimum roof pitch from 6 : 12 to 4: 12 and
d) Delete the paragraph requiring that shutters,if used, be wood.
6. in September 1993, the Petitioner obtained approvals from the Planning
Board and proceeded with construction of the development, installing
underground utilities, drainage systems and roads to the binder course
at a cost to the Petitioner in excess of $120,000.
7. Of the 14 existing homes in the neighborhood, 8 have living space of
less than 1500 sq. ft. ; 3 are of between 1500-1800 sq. ft. ; 1 is
between 1800-2000 sq. ft . and 3 are in excess of 2000 sq. ft. of
living space.
8. There are 2 other buildable lots in the neighborhood which are not
subject to restrictive covenants similar to those set forth in the
Sable Heights II Protective Covenants.
9. Petitioner represented that on January 25, 1995, a letter was sent to
all neighbors in the Mooney and Durkin Road neighborhood advising them
of the Petitioner's intent to seek modification of the Sable Heights
II Protective Covenants. A copy of said letter was made a part of the
record.
10. In response to said January 25th letter, the Petitioner was contacted
by a couple of neighbors who discussed their concerns about the
Petitioner's plans.
11. On February 15, 1995, Petitioner again wrote the Mooney and Durkin Road
neighborhood inviting the neighbors to attend a meeting to discuss in
detail the plans to seek modification of the Sable Heights II
Protective Covenants. A copy of said letter was made a part of the
record.
12. On March 1, 1995, Petitioner held a meeting to discuss their plans with
the neighbors. At said meeting, two residents of the neighborhood
attended and expressed their concerns about the Petitioner's plans.
13. The Petitioner's land runs along and/or lies beneath high tension
electrical wires.
14. The Petitioner represented that to construct a home with a 2000 sq. ft.
living area that it would be necessary to build a 2 story home on some
of the lots.
15. The requested changes to the protective covenants are reasonable and
modest in nature.
16. Their was no opposition to the Petitioner's request at the hearing.
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.
3. The request relief can be granted without substantial detriment to the
public good and without nullifying and substantially derogating from
the intent of the district or purpose of the Ordinance.
Therefore, the Zoning Board of Appeal voted unanimously, 5-0, to grant the
requested relief, subject to the following conditions:
DECISION ON THE PETITION OF DEIULIS BROTHERS CONSTRUCTION FOR A
MODIFICATION OF THE BOARD DECISION OF MARCH 1992 REGARDING THE PROPERTY
LOCATED AT MOONEY AND DURKIN ROADS (RC/R1)
page three
1 . Petitioner shall comply with all city and state statutes, ordinances,
codes and regulations.
2 . All construction shall be done as per the plans and dimensions
submitted.
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 neighborhood and in compliance with the Amended Sable Heights II
Protective Covenants.
6. A Certificate of Occupancy is to be obtained.
7. A Certificate of Inspection is to be obtained.
8. Amended Sable Heights II Protective Covenants dated March 15, 1995 and
signed by the Petitioner Frank DeIulis are incorporated here in
reference and made a part of this decision. Said covenants are to be
attached to the within decision.
Modification Granted
March 15, 1995
Gary M. Barrett
Board of Appeal, Member
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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J'I� DeIULIS BROTHERS::
CONSTRUCTION.CO. INC.
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January 25, 1995
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Mr. & Mrs . Bruno Milani
► 14 Mooney Road
Building Salem, Massachusetts 01970
excellence
since 1958 RE: Modification of variance
Dear Bruno and Cathy:
Our attempts to market the lots have obviously not met with '
the success we expected. We believe that a major drawback "
► for prospective buyers is the Protective Covenants which' '
were incorporated into the Board of Appeal Decision granting'':
► us the variance . We overestimated the market in Salem, and;::
►► to be perfectly honest , the size of the home we thought
appropriate has turned out to be too large and too costly iri
most cases .
► At this time we feel it necessary to seek a modification of
the variance by modifying the Protective Covenants . We are .
proposing the following changes to the Covenants .
1 . Change the minimum living area from 112 , 000" square
feet to 111, 500" square feet .
►
► 2 . Change the minimum footprint from 1 , 000 square
i feet "exclusive" of garage to 1 , 000 square feet .
► "inclusive" of garage .
3 . Change minimum roof pitch from 116 12" to
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114 . 1211 . ,
► i
4 . Delete the paragraph requiring wood shutters to
allow vinyl shutters .
► The above changes will allow us to market a wider range of. .
home styles, such as split entrys, ranches and capes, which.
will be compatible with existing houses in the neighborhood.
0. I am taking this opportunity to write you in advance of:
► petitioning the Board of Appeal for a modification in order
that we might discuss any of your concerns .
►
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► ♦ 311 '
Co Ims Street Terrace Lynn, M
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, y A 01902-2205 ♦ 617-595-8677 ♦ FAX 617-593-7840
Generaln r
Co s[ i
ucton A Construction st uction Mana9 ement . Member A.G.C.
ALDeMlt BROTH�RS�
CONSTRUCTION
January 25, 1995
Page 2
This letter is going out to everyone in the neighborhood
We would be happy to schedule a neighborhood meeting at our
office to discuss the proposed modification. If you would .
like to have such a meeting, please call our office and we `.:'
will try to arrange a meeting convenient for everyone
concerned.
Thank you in advance for your cooperation.
Very truly yours,
DeIULIS BROTHERS CONSTRUCTION CO. , INC.
Frank DeIulis, President
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Enclosure - copy of current Protective Covenants
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► AL
DeIULIS BROTHERS ;CONSTRUCTION CO.; INC.
0. February 15, 1995
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P. Mr. & Mrs . Bruno Milani
P. 14 Mooney Road
Salem, Massachusetts 01970
RE : Meeting
Building
excellence Dear Bruno and Cathy:
since 1958
► Since we sent you our . letter concerning the proposed
i► modification of the Protective Covenants for Sable Heights II "
we have received three calls from neighbors who indicated they
j would oppose the modification. The primary reason given in
opposition was that the proposed minimum size would be reduced
from 2, 000 square feet to 1, 500 square feet . We do not feel
11. that by reducing the minimum size we will be going against the
spirit of the covenant . We still intend to build quality
homes , and as I explained in my first letter, we are simply
ll� attempting to expand our market of potential homebuyers by
► being able to offer a wider range of home styles .
Since we are sensitive to the concerns of the residents of the
�
neighborhood we are inviting everyone to attend a meeting at
our office so that we might discuss our proposals in more
0. detail . This meeting will take place on Wednesday, March ist,
0. at 7 : 00 P.M. We hope that you will be able to attend.
If you need directions to our office, please call us .
j Thank you.
Very truly yours,
DeIULIS BROTHERS CONSTRUCTION CO. , INC.
Frank DeIulis, President
►
A 31 Collins Street Terrace, Lynn, MA 01902-2205 A 617-595-8677 A FAX 617-593-7840
General Construction A Construction Management A Member A.G.C.
►
21 Mooney Road
Salem, MA 01970
March 27 , 1995
Chairman
Board of Appeal
City Hail
Salem, _MA 01970
We are writing to request a rehearing of the recent petition by
the DeIulis Brothers Construction Company to modify the terms of
the March 24 , 1993 Board of Appeal decision. Had we been advised
of the March 15 , 1995 public hearing as we had been concerning
prior hearings on this development , we would have attended and
voiced objections to the petition, but unfortunately we did not
receive a Legal notice through the mail . The following chronolo-
gy forms the basis for our request .
In 1993 our neighbors and we were notified by mail in advance of
the January 27 , 1993 Board of Appeal public hearing regarding the
DeIulis Brothers Construction Company' s petition for a zoning
variance for their proposed project , Sable Heights II . The City
mailed copies of the Legal Notice of the hearing to residents of
the following addresses : 2 , 4 Durkin Road, 14, 15 , 17 , 19, 21
Mooney Road and 3 Seemore Street .
As a result of the mailing, the neighbors united in opposing the
petition for the variance. Representatives from at least seven
households attended the January 27 , 1993 to express opposition.
Before the meeting began, Patrick DeIulis and John R. Serafini ,
Sr . , the Company ' s attorney, spoke to us and our neighbors
briefly, and we all agreed to meet at a later date to discuss the
proposed subdivision. That night the petition was continued at
the reauest of the petitioner.
On February 9 , 1993 the neighborhood meeting was held in our
living room. To the best of my recollection, the following
people attended: Mr . Serafini , Mr . Patrick DeIulis , Mr . Frank
DeIulis , Councilor Leonard O' Leary, Mr . and Mrs . Bruno and
Catherine Milani ( 14 Mooney Road) , Mr. and Mrs . Richard and
Shirley Marescalchi ( 15 Mooney Road) , Mrs . Carol Filardo (19
Mooney Road) , Mrs . Ann Ercha ( 17 Mooney Road) , Mr. Henry Pigulski
( 2 Durkin Road) , Ms . Barbara Gardyna ( Seemore Street) , Mrs . Karen
Moran ( 3 Seemore Street ) , and of course , we were there. Mr .
Serafini distributed a proposed list of protective covenants , he
explained them and excused himself from the meeting. There was a
lively discussion, heated at times . Our impression was that the
majority of the neighbors , while not enthusiastic about the
disruption of construction in the area , seemed somewhat satisfied
that the covenants would protect their interests . We felt secure
knowing_ that the conditions were enforceable by City of Salem,
not by the developer . We were confident that we would receive
Legal Notices of hearings on any future changes.
A
During the Eoard of Appeal public hearing in March 1993 , I
( Leonard) personally spoke in favor of granting the variance , and
it was aranted.
Now for current events -
DeIulis Brothers Construction Company mailed us and the neighbors
a letter dated January 25 , 1995 proposing the four modifications
to the protective covenants . I telephoned Patrick DeIulis and
explained my objections .
Next we received the letter dated February 15 , 1995 . The first
paragraph reads " . . . we have received three calls from neighbors
who indicated they would oppose the modification" and the letter
goes on to invite everyone to a meeting in their office on March
1 , 1995 . I did not respond or attend because the beginning of
the letter acknowledged receipt of my call , and I had nothing to
add. Also, I felt assured I would be notified of any nubiic
hearing on the proposal , and would voice my concerns before the
Soard of Appeal .
We learned days afterward that on March 15 , 1995 the BB•oard of
Appeal granted a petition by the DeIulis Brothers Construction
Company to modify protective covenants pertaining to the Sable
Heights II development on Mooney and Durkin Roads . None of my
neighbors attended the public hearing, nor did we, because none
of us were aware of the meeting. We did not see the Legal Notice
in the Salem Evening News , and none of the residents of Durkin
Road, Mooney Road or Seemore Street were notified by mail .
Again , had we known of the public hearing, we and certain neigh-
bors would have expressed our objections to the petition before
the Board of Appeal .
Last week Teresa requested and received copies of the Certified
Abutters List dated March 3 , 1995 , the petition dated February
22 , 1995 , as well as an audio cassette tape of the hearing. We
have carefully compared the two documents . Six out of seven of
the Property Addresses are the same as the property which is the
subject of the petition, owned by the DeIulis Brothers Construc-
tion Company . The seventh parcel belongs to Pietrini of Beverly .
In other words , the only "abutters" identified by the City were
non-residents : the petitioner and a party who owns a vacant lot .
We have the following questions about the Certified Abutters List
dated March 3 , 1995 , and the Board' s action at the March 15th
hearing :
1 . Please explain the basis for the Certified Abutters
List . How, and by whom, was it determined that only
Lot 17 ( 28 Mooney Road) was the Subject Property Ad-
dress? Should the Subject Property Address have been
"25 , 27 , 28 , 29, 31 Mooney Road and 6 , 7 , 8 Durkin
Road" , per the language in the petition? Was the
Certified Abutters List contradictory?
Is it proper that the assessed owner of the property at
issue in the petition be considered an abutter? Gener-
ally , does the Board of Assessors consider whether a
conflic � of interest exists between the assessed owners
on the Certified Abutters List and the petitioner? If
so, was a conflict of interest determination done in
this case?
In 1993 my neighbors and we were notified by mail in
advance of the January 27 , 1993 public hearing regard-
ing the petition for a zoning variance. How is it that
we abutted then, but not in March 1995? What changed
our status":
4 . Should we be considered abutters to the parcel of land
described in the petition dated February 22 , 1995?
What about future petitions?
Please define abutter .
6 . During his presentation to the Board at the hearing,
Patrick DeIulis talked about the two recent letters and
indicated that neighbors objected, yet no one on the
Board questioned him as to the nature of the objec-
tions , and no one discussed the Certified Abutters
List . During the public discussion portion of the
hearing, no one spoke in favor , and no one spoke in
opposition. The Board knew that the neighbors were
involved and concerned about the proiect . Did the
Board have a responsibility to pursue why this group of
homeowners would be silent that night?
If the City erred by not notifying even the neighbors whose
property touches the parcel of land described in the petition ,
can the Board retract the March 15 , 1995 decision and schedule a
rehearing? We respectfully request your prompt written response
to this inquiry . If you have any questions , please contact
Teresa at work at 617-494-2401 or leave a message at our home
number , 508-745-3034 . Thank you for your attention to this
matter .
Sincerely,
Teresa Lee-_^ierstein
LeLao erstein
TO THE CITY OF SALEM BOARD OF APPEAL
This is in reference to the petition submitted by the DeIulis Brothers
Construction Company requesting a modification of the Board's decision of
March 1993 for the property located at 25, 27, 28, 29, & 31 Mooney Road
and 6, 7, & 9 Durkin Road (RC/Rl).
We the undersigned residents of Mooney Road, Durkin Road and Seemore
Street object to the petition.
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TO THE CITY OF SALEM BOARD OF APPEAL
This is in reference to the petition submitted by the DeIulis Brothers
Construction Company requesting a modification of the Board's decision of
March 1993 for the property located at 25, 27, 28, 29, & 31 Mooney Road
and 6, 7, & 9 Durkin Road (RC/Rl).
We the undersigned residents of Mooney Road, Durkin Road and Seemore
Street object to the petition.
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