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3 LILLIAN ROAD - BUILDING INSPECTION t COMMONWEALTH OF MASSACHUSETTS ESSEX. ss. SUPERIOR COURT DEPARTMENT DOCKET NO.: .TAMES W. LEWIS, Plaintiffs, V. - ^� < e_ A P r p REBECCA CURRAN, PETER A. =_ C'OPELAS. JAMES TSITSINOS, v MICHAEL DUFFY, THOMAS WATKINS, n ,TAMES HACKER, and PAUL VICCICA as 3 they are Members of the City of Salem 3 N Zoning Board of Appeals; and THOMAS > o ST. PIERRE as he is the Building o Commissioner for the City of Salem; SEAN KELLEHER; and DANIELLE KELLEHER, Defendants. COMPLAINT 1. This is an appeal pursuant to Mass. Gen. Law c. 40A §§7, 8, 15 and 17. o1'a decision of' the City of Salem Zoning Board of Appeals (hereinafter referred to as the "Board of Appeals") acting as the authority hearing the Appeal of the Decision of the City of Salem Building Commissioner, Thomas St. Pierre, to contest interpretation of fence and fence height as it applies to the fences and retaining walls located on the boundary of") Lillian Road and 19 Chandler Road, Salem, Massachusetts. Wherein, the Board of Appeals exceeded its authority under the City of Salem Zoning Ordinance, in upholding the Building Commissioner's decision as it relates to fences, fence height, permitting. and the applicable statute of limitations. The Board of Appeals exceeded its authority by upholding the Building Commissioner's decision without adequate factual or legal grounds to support its decision. The plaintiff seeks to have the Court annul that decision as described belox\. A certified copy of the decision of the Board of Appeals of the City of Salem. as tiled in the office of the City Clerk on September 28. 2016. is attached hereto and incorporated herein by reference and marked as Fxhibit "A." 2. The plaintiff James W. Lewis is an individual who owns property and resides at 3 Lillian Road, Salem, Massachusetts, which is located in an R-1 Zoning District under the Salem Zoning Ordinance. 3. The defendants Sean Kelleher and Danielle Kelleher are the owners of property located at 19 Chandler Street.. which is located in an R-1 Zoning District under the Salem Zoning Ordinance. 4. The defendants. Rebecca Curran, Peter A. Copelas. James Tsitsinos. Michael Duff- \,-Thomas Watkins, James Hacker, and Paul Viccica are Members of the Zoning Board of Appeals of Salem. Their addresses are as follows: a. Rebecca Curran, 14 Clifton Avenue, Salem. Massachusetts. b. Peter A. Copelas. 40 Warren Street, Salem. Massachusetts. c. James Tsitsinos, 61 C Warf Street, Unit 5B, Salem, Massachusetts. d. Michael Duffy, 1 Warren Street, Salem, Massachusetts. e. Thomas Watkins, 24 Surrey Road, Salem. Massachusetts. f James Hacker, 4 Mayflower Lane, Salem. Massachusetts. g. Paul Viccica, 35 Broad Street. Salem, Massachusetts. 5. Defendant, Thomas St. Pierre, is the Building Commissioner of the City of Salem (hereinafter referred to as "Building Commissioner") with an address of' Building Department, City of Salem. 120 Washington Street. 1"' Floor, Salem, Massachusetts. 6. The property owned by Plaintiff is adjacent to and abuts the property owned by Sean and Danielle Kelleher, and as such the Plaintiff is a party in interest and a party aggrieved within the meaning of Mass. Gen. Law c. 40A. 7. On or about September 3. 2015, pursuant to the provisions of Mass. Gen. Law c. 40A Plaintiff made a request to the Building Commissioners office to enforce the City of Salem Zoning Ordinance. 8. As grounds for his request, the Plaintiff stated that the height of a fence(s) and wall(s) on the boundary line of 3 Lillian Road and 19 Chandler Road exceeded six (6) feet as permitted by the City of Salem Zoning Ordinance. that the fence was located on his property, the appropriate permits were not obtained, and due to the lack of permits the matter was timely pursuant to Mass. Gen. Law c. 40A §7. 9. Plaintiff asserts that the fence at issue is located on his property at 3 Lillian Road. but as the issue of property boundaries is a civil matter, the issue was not before the Board of Appeals. Plaintiff reserves all rights to commence a separate civil action with respect to that issue. 10. On or about September 22,2015,a site visit was conducted by the Building Commissioner. and/or an agent or representative of his office, at 3 Lillian Road. Salem. Massachusetts. 11. On or about September 25, 2015, further verbal communications were held between the Plaintiff and Building Commissioner, and/or an agent or representative of his office. 12. On or about December 7, 2015,Assistant Building Inspector Wagg mailed a letter to Sean and Danielle Kelleher. This letter was not sent to the Plaintiff. 13. On or about March 212016, Assistant Building Inspector Wagg sent a subsequent letter to Sean and Danielle Keller. This letter was not sent to the Plaintiff. 14. On or about April 29, 2016, the Building Commissioner denied the Plaintiffs request. 15. The Building Commissioner's denial exceeded the fourteen (14) day deadline pursuant to Mass. Gen. Law c. 40A §7. 16. On May 24, 2016, Plaintiff appealed the Building Commissioners decision. pursuant to Mass. Gen. Law c. 40A §§ 8 and 15 and corresponding provisions of the City of Salem Zoning Ordinance. 17. On ,lune 15, 2016, the Board of Appeal held a public hearing on the Plaintiffs appeal. 18. After hearing from the Plaintiff and the Defendants. Sean and Danielle Kelleher. the Zoning Board of Appeals voted to continue the public hearing to September 25. 2016. at which time the Board of Appeals held a further public hearing. 19. Following the close of the public hearing on September 25, 2016, the Board of Appeals voted to uphold the Building Commissioner's decision. 20. On September 28, 2016,the Board of Appeals filed with the Clerk of the City of Salem. its decision to uphold the Building Commissioner's decision. A certified copy is attached hereto as Exhibit "A." 21. Plaintiff is aggrieved by the Board of Appeals decision because it is based upon legall} untenable grounds, it is unreasonable, capricious or arbitrary, and it has an insubstantial basis of fact. WHEREFORE, Plaintiff prays that the Court, pursuant to the provisions of Mass. Gen. Law C. 40A §17: a. Enter an order annulling the decision of the Board of Appeals and reversing the decision of the Building Commissioner; and b. Grant such other and further relief as the Court shall deem to be just and proper. Respectfully submitted, James W. Lewis. By his attorney. /p n HEN M. Zol . (BBO # 675658) .STEPM.XO TAS,ATTORNEY A"r LAW 133 Washing n Street, 2nd Floor Salem, MA 01970 Tel: (978) 744-5333 Date: October 14. 2016 szolotas@zolotaslaw.com CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL ,t 1 120 WASHINGTON STREET♦ SALEM,MASSACHUSETTSNWOP 28 P 1= Ob KIMBERLEY DRISCOLL TELE:978-745-9595 ♦ FAX:978-740-9846 MAYOR FILE # CITY CLERI(. SALEM, MASS. September 26, 2016 Decision City of Salem Board of Appeals Petition of JAMES W. LEWIS seeking an Appeal of the Decision of the Building Inspector to contest the interpretation of fence and fence height at the property of 3 LILLIAN ROAD (Map 30 Lot 30)(Rl Zoning District). A public hearing on the above Petition was opened on June 15, 2016 pursuant to M.G.L Ch. 40A, 5 11. Public testimony was heard on that date and the public hearing was continue to September 21, 2016 and closed on that date with the following Salem Board of Appeals members present: Rebecca Curran (Chair), Peter A. Copelas (Vice-Chair),Jimmy Tsitsinos, Mike Duffy, and Tom Watkins. The Petitioner is seeking an Appeal of the Decision of the Building Inspector to contest the interpretation of fence and fence height. Statements of fact 1. In the petition date-stamped May 24, 2016, the Petitioner requested to appeal the Decision of the Building Inspector to contest the interpretation of fence and fence height. 2. Attorney Stephen Zolotas of 133 Washington Street, Salem, MA presented the petition. 3. The petitioner, Mr. James W. Lewis, filed an appeal of the Decision of the Building Inspector. Mr. Lewis requested that the building inspector enforce the Salem Zoning Ordinance nine (9) years after a building permit was issued for the construction of a swimming pool. 4. The petitioner states that a retaining wall constructed in relation to the swimming pool needed a building permit and therefore, the statute of limitation on enforcement of other zoning matters could be done. 5. In particular, Mr.Lewis requested that the building inspector enforce the fence height requirements of the Salem Zoning ordinance due to concerns about the fence height and location installed by an abutting neighbor. 6. The location of the installed fence is a civil matter. 7. In a letter dated March 21, 2016, the City's assistant building inspector provided a zoning opinion stating that the permit for an in-ground pool was applied for and issued 5/21/2007. There is no record on-file of a request for a zoning variance or for a building perrnit to increase the height of the border/retaining wall above 6' feet. There is no record on-file that the City Engineer was notified of the intent to alter the grade of the land. 8. While there was no grade alteration permit applied for from the Engineering Department to alter the grade of the land,it is not within the purview of the Zoning Board to discuss a permit of the Engineering Department since it is not part of the zoning ordinance. City of Salem Board of Appeals September 26,2016 Project: 3 Lillian Road Page 2 of 2 9. In a letter dated April 29, 2016 the Building Inspector stated that he met with the neighbors and discussed the construction work done at 19 Chandler Street. Work included the installation of a pool, patio and raising of a retaining wall that was done in 2007. The Massachusetts General Law Ch.40A Section 7 states that no enforcement actions may be taken if the work was permitted and a period of six (6) years has passed. 10. It is the opinion of the Building Inspector officer that no enforcement actions may be taken as the construction work received a building permit and a period of six (6) years has passed. 11. Regarding fence height, the Salem Zoning Ordinance states the following "retaining walls, boundary walls and or fences may be built abutting the property line. The height of the retaining wall boundary walls and or fences shall be measured on the inside face of the structure on the owners side." It is the opinion of the Building Inspector that as long as the abutter's fence does not exceed six (6) feet measured from their side, there is no zoning violation. 12. The height of the raised retaining wall is approximately three and a half feet(3.5') and would not have required a building permit at the time of construction. 13. The requested relief, if granted, would allow the zoning enforcement officer to take any associated enforcement actions. 14. At the public hearing, two (2) members of the public spoke in opposition and no members of the public spoke in favor, of the petition. The Salem Board of Appeals, after careful consideration of the evidence presented at the public hearing, and after thorough review of the petition, including the application narrative and plans, makes the following findings: Findings: 1. A building permit was pulled on May 21, 2007 for the construction of the swimming pool. A building permit was not required for the construction of the 3.5' foot retaining wall. Therefore, the statute of limitation of six (6) years for any zoning enforcement action has passed. On the basis of the above statements of facts and findings, the Salem Board of Appeals voted five (5) in favor (Rebecca Curran (Chair), Peter A. Copelas (Vice-Chair),Jimmy Tsitsinos, Mike Duffy, and Tom Watkins) and none (0) opposed, to uphold the decision of the building inspector. The decision of the Building Inspector is upheld. TRIS y T Rebecca Curran, Chair L'ITY��ufCLERKsC Board of Appeals A��r+ O�'1'1-1Tb"bEi~iSION 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 Genera!Lawn Chapter 40A, and shall be filed within 20 days of fUng of this dedrion in the offire of the City Clerk. Pursuant to the Massachusetts General Laws Chapter 40,4, Section 11, the Variance or Special Permit granted herein shall not take effect anti/a copy of the decision bearing the certiftate of the Gty Clerk bar been filed pith the F_rrex South Re&stry of Deeds. r� Z CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL 120 WASHINGTON STREET♦ SALEM,MASSACHUSETTS X91. OP 28 P 1: bb ` KIMBERLEY DRISCOLL TELE:978-745-9595 ♦ FAX:978-740-9846 MAYOR I FILE, CITY, CLERK.SALEM.MASS. September 26, 2016 Decision City of Salem Board of Appeals Petition of JAMES W. LEWIS seeking an Appeal of the Decision of the Building Inspector to contest the interpretation of fence and fence height at the property of 3 LILLIAN ROAD (Map 30 Lot 30)(RI Zoning District). A public,hearing on the above Petition was opened on June 15, 2016 pursuant to M.G.L Ch. 40A, Public testimony was heard on that date and the public hearing was continue to September 21, 2016 and closed on that date with the following Salem Board of Appeals members present: Rebecca Curran (Chair), Peter A. Copelas (Vice-Chair),Jimmy Tsitsinos,Mike Duffy, and Tom Watkins. The Petitioner is seeking an Appeal of the Decision of the Building Inspector to contest the interpretation of fence and fence height. Statements of fact: 1. In the petition date-stamped May 24, 2016, the Petitioner requested to appeal the Decision of the Building Inspector to contest the interpretation of fence and fence height. 2. Attorney Stephen Zolotas of 133 Washington Street,Salem,MA presented the petition. 3. The petitioner, Mr. James W. Lewis, filed an appeal of the Decision of the Building Inspector. Mr. Lewis requested that the building inspector enforce the Salem Zoning Ordinance nine (9)years after a building permit was issued for the construction of a swimming pool. 4. The petitioner states that a retaining wall constructed in relation to the swimming pool needed a building permit and therefore, the statute of limitation on enforcement of other zoning matters could be done. 5. In particular,Mr. Lewis requested that the building inspector enforce the fence height requirements of the Salem Zoning ordinance due to concerns about the fence height and location installed by an abutting neighbor. 6. The location of the installed fence is a civil matter. 7. In a letter dated March 21, 2016, the City's assistant building inspector provided a zoning opinion stating that the permit for an in-ground pool was applied for and issued 5/21/2007. There is no record on-file of a request for a zoning variance or for a building permit to increase the height of the border/retaining wall above 6' feet. There is no record on-file that the City Engineer was notified of the intent to alter the grade of the land. 8. While there was no grade alteration permit applied for from the Engineering Department to alter the grade of the land,it is not within the purview of the Zoning Board to discuss a permit of the Engineering Department since it is not part of the zoning ordinance. k 1 City of Salem Board of Appeals September 26,2016 Project:3 Lillian Road Page 2 of 2 9. In a letter dated April 29, 2016 the Building Inspector stated that he met with the neighbors and discussed the construction work done at 19 Chandler Street. Work included the installation of a pool, patio and raising of a retaining wall that was done in 2007. The Massachusetts General Law Ch.40A Section 7 states that no enforcement actions may be taken if the work was permitted and a period of six (6) years has passed. 10. It is the opinion of the Budding Inspector officer that no enforcement actions may be taken as the construction work received a building permit and a period of six (6) years has passed. 11. Regarding fence height, the Salem Zoning Ordinance states the following "retaining walls, boundary walls and or fences may be built abutting the property line. The height of the retaining wall boundary walls and or fences shall be measured on the inside face of the structure on the owners side." It is the opinion of the Building Inspector that as long as the abutter's fence does not exceed six (6) feet measured from their side, there is no zoning violation. 12. The height of the raised retaining wall is approximately three and a half feet (3.5) and would not have required a building permit at the time of construction. 13. The requested relief, if granted, would allow the zoning enforcement officer to take any associated enforcement actions. 14. At the public hearing, two (2) members of the public spokein opposition and no members of the public spoke in favor, of the petition. The Salem Board of Appeals, after careful consideration of the evidence presented at the public hearing, and after thorough review of the petition, including the application narrative and plans, makes the following findings: Findings: 1. A building permit was pulled on May 21, 2007 for the construction of the swimming pool. A building permit was not required for the construction of the 3.5' foot retaining wall. Therefore, the statute of limitation of six (6) years for any zoning enforcement action has passed. On the basis of the above statements of facts and findings, the Salem Board of Appeals voted five (5) in favor (Rebecca Curran (Chair), Peter A. Copelas (Vice-Chau),Jimmy Tsitsinos,Mike Duffy, and Tom Watkins) and none (0) opposed, to uphold the decision of the building inspector. The decision of the Building Inspector is upheld. r i�(JtJt�a�n/L ? Rebecca Curran, Chau Board of Appeals A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal fmm this decision,if any,shall be made pursuant to Section 17 of the Massachusetts General Lams Chapter 40A, and shall be filed within 20 days of fik'ng of tbu dearion in the office of the City Clerk. Pummnt to the Massachusetts General Laws Chapter 40A, Section 11, the Variance or Speaal Permit granted herein sball not take effect until a ropy of the deasion bearing the certificate of the City Clerk bas been filed with the Essex South Registry of Deeas.