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265 LORING AVENUE - BUILDING INSPECTION w uu UPC 10330 r} No. 153L 'la, HASTINGS. UN • �� t y1 JOHN D. KEENAN CITY OF SALEM - MASSACHUSETTS JAMES G. GILBERT City Solicitor LEGAL DEPARTMENT Assistant City Solicitor 222 Essex Street 93 WASHINGTON STREET 15 Front Street Salem, MA 01970 SALEM, MASSACHUSETTS 01970 Salem,MA 01970 Tel:(978)741-4453 Tel: (978)744-9800 Fax: (978)740-0072 Fax: (978)744-7660 Email:jdkeenanlaw@aol.com Email:gilbert®salemlawyer.com February 3, 2003 Gary M. Katz, Esq. 282 Washington Street Salem, MA 01970 RE: Pierce Road Salem, MA Development of Rear Lot #317 Dear Attorney Katz: I have finally had a chance to review these issues more closely. I apologize for the delay; however, these sorts of requests generally fall behind hearing/litigation demands. Nonetheless, as I understand it, you are interested in purchasing the rear lot (#317) on Loring Avenue for the purpose of building a single-family residence for yourself. As you know, the development of the front lot was not without extensive litigation over the course of a decade. It is my recollection that ultimately that matter was resolved with the understanding that only the front lot would be developed and not the rear. Presently, Lot 317 (approximately 6,218 sq ft) appears to have seventy feet of "frontage" on the unimproved paper street Pierce Road.' Lot 317 does not have "frontage" on a developed street at the present time. Presently, there is no vehicular access to the lot. Lot 317 is in the R-1 (residential, single-family district) and in the wetland overlay. You suggest that the city must either construct Pierce Road or waive same. You also suggest that the owner of the front lot, Joyce Salvo, will grant you an easemene that will enable you to build a driveway by right3 to Loring Avenue. This, you suggest, would provide the requisite access. ' In 1996, Pierce Road was accepted by the Salem City Council from Loring Avenue to 22 Buchanan Road. I have not done a rundown at the Registry regarding Pierce Road. 2 1 believe this is what had also been proposed by the Salvos for the previous plan to develop the two lots—the driveway proposed on the opposite side. That litigation was ultimately dismissed by agreement of the parties ("without prejudice and without costs"). s Salem Zoning Ordinance, Sec. 7-16(c)(8) provides: "in the wetlands and flood hazard districts, the following uses are permitted, as of right, provided that any and all permits, orders or approval required by state or federal law shall have been Page Two of Four February 3, 2003 • RE: Lot 317 — Pierce Road Attorney Katz "Frontage": Under the Zoning Ordinance Adopted by the City of Salem on or about August 27, 1965, at Section II, "Definitions," subsection (b), "Selected Terms and Words," the terms lot, street and way are defined as follows: Lot: A parcel of land occupied or designed to be occupied by a principal building and the accessory buildings or uses customarily incident to the principal building, including such yards and other open spaces as are arranged and designed to be used with such buildings. Such lot shall have frontage on an improved public street and may consist of a single lot of record, a portion of a lot of record, or a combination of such lots or portions of lots of record, provided that such lot is used for only (1) principal use. (emphasis added) Street: A public or private way which affords the principal means of access to an abutting property. Way: A street or alley or other thoroughfare or easement permanently established for passage of persons or vehicles. The Salem Zoning Ordinance does not define "frontage." The Massachusetts Supreme Judicial Court, at least for purpose of the Subdivision Control Act, has opined that frontage is meant to make certain that a lot "may be reached by the fire department, police department, and other agencies charged with the responsibility of protecting the public peace, safety and welfare." Gifford v. Planning Board of Nantucket, 376 Mass. 801(1978). 1 have not been able to find authority directly on point for this right-of-way/access issue providing the "frontage." Indeed, the case law even suggests it is difficult not to mix the concept of zoning regulation (Chapter 40A) with that of subdivision control (Chapter 41, §§ 81 K-81 GG). SSpalke v. Bd. Appeals Plymouth, 7 Mass. App. Ct. 683, 688 (1979)(ordinance provided "frontage on and access to street or adequate access to a public way approved by the Planning Board). In Spalke, the court upheld the building inspector's denial of a building permit as land access to the property was only by Landing Road — neither a public way nor adequate access as only traveled by four wheel drive vehicles). Id. at 684.4 Planning Board should only withhold ANR endorsement where the access is obtained: Private paved driveways serving a single-family residence where alternate means of access are inappropriate and not reasonably feasible." (emphasis added). Clearly, this does not create an exemption from the Wetlands Protection Act and Conservation Commission scrutiny. 4 But see, LeBlanc v. Bd. Appeals Danvers, 32 Mass. App. Ct. 760 (1992)(Where plaintiff had agreed to improve unimproved road to specification, "to define frontage in 40A, §6 Page Three of Four February 3, 2003 RE: Lot 317 — Pierce Road Attorney Katz "illusory in fact." Sturdy v Planning B d Hingham, 32 Mass. App. Ct. 72, 75 (1992). Lot 317 does not have "frontage" along an improved public street. Unless the proposal were to build Pierce Road to specification, this would remain the case. Construction of Pierce Road "As a general rule, private individuals have no authority to make major repairs to a town road." Anderson v. Healy, 36 Mass. App. Ct. 131, 135 (1994)(citing Perry v. Planning Bd. Nantucket, 15 Mass. App. Ct. 144 (1983); Lamb v. Ambler Assoc., 563 A.2d 365 (Me 1989)). "[Private individuals] have no right unilaterally to make substantial improvements in a public way." td. Although I believe, as suggested in Perry, you have every right to petition the city to either build or discontinue the street, I am unaware of precedent that requires a municipality to either build a paper street or waive construction of same.5 If this were the case, I suspect most developers would demand such action to save on the costs of developing such ways to specification. I think your suggestion that the apparent allowed use by Mr. Weiting of part of unimproved Pierce Road (the Buchanan Road end) somehow forfeits rights to build the street is misplaced. "Non-use or apparent abandonment of a public way by a town does not result in discontinuance of the public status of the way." Martin v. Freetown Bldg. Insp., 38 Mass. App. Ct. 509 (1995). At this time, the City of Salem will not improve Pierce Road as you've suggested. Furthermore, I am unaware (nor have I been provided) of any authority vested in this legal department to waive construction of the way. Even if this department had such authority, it would certainly be unwise to exercise such discretion without input from the Planning Department and the City Council. I am not sure how inaction by the city at this time is in anyway prejudicial to Lot 317 and biased in favor of Mr. Weiting. This unimproved way has been in existence since at least as early as 1906 when it first appeared on the subdivision plan for Pickman Park. Lastly, I would like to reiterate what has been expressed to me as strong opposition from the Ward Councilor and residents of this area. (see enclosed). by importing the criteria of 41, 81 L would not serve the purpose of protecting a once valid lot from being rendered unbuildable). 5 In his February 4, 1997 letter to the Planning Board, Attorney Gregory McGregor suggests this waiver practice is "consistent with accepted practice." Perhaps this is the case; however, that does not require said action. Page Four of Four February 3, 2003 RE: Lot 317 — Pierce Road Attorney Katz It is not my intention of this letter to thwart your efforts and legal rights to potentially develop this rear lot. I have never made it my practice to predict how the Planning Board and Conservation Commission would act on such an application. At this time, it is my opinion that Lot 317 does not have frontage on an improved public way, and that the city is under no obligation to build-out Pierce Road or waive same. I hope my response answers more questions for you than it raises. Again, thank you for your patience in awaiting my response. Very best regards, N Jo i D. Keenan, Esq. EN . cc. Thomas St. Pierre, Building Inspector Denise McClure, City Planner Joseph A. O'Keefe, Sr., Ward Seven Councilor Timothy Salvo, Owner Citp of 6alem, juassarbusetts Offire of the citp couutil citp ball COUNCILLORS-AT-LARGE REGINA R. FLYNN WARD COUNCILLORS 2002 PRESIDENT 2002 LAURA ADeTOMA DEBORAH E. BURKINSHAW ER THOMAS H.FUREY CITY CLERK REGINA R. FLYNN KEVIN R. HARVEY - JOAN B.LOVELY ARTHUR C.SARGENT III LEONARD F O'LEARY KIMBERLEY L. DRISCOLL MICHAEL A. BENCAL JOSEPH A. O'KEEFE, SR. MEMORANDUM November 19, 2002 TO: Mr. John D. Keenan, City Solicitor City HalI 93 Washington Street SALEM MA 01970 FROM: Joseph A. O'Keefe, Sr Councillor Ward 7 SUBJECT: Pierce Road (Ward 7) House lot Attached is a copy of my September 26, 2002 letter to Salem Building Inspector Thomas St. Pierre expressing my opposition to the construction of a one family residence on a 6700 square foot parcel of property on that portion of Pierce Road which is a paper street. I checked on this issue with Building Inspector Thomas St. Pierre who advised me, I believe correctly so, the above captioned lot must have frontage on an improved public street(Salem Zoning Ordinance Article II Sec 2-2.) which this lot, recently acquired at auction, does not have. I would be opposed to any additional residential development on Pierce Road and at that lot in particular. Please keep me advised of your research. espectfully, P/c Thomas St. Pierre T. Philbin T. Mackey D. McClure DPCD F. Kulik ViAl of balem, 01assatbusetts ,� ' ,, -. t a ®fffce of the �Citp �ouuril COUNCILLORS-AT-LARGE REGINA R. FLYNN WARD COUNCILLORS PRESIDENT 2002 LAURA A DeTOMA DEBORAH E. BURKINSHAWCLAUDIAC THOMAS H.FUREY CITY CLERK CEGINA CHUBER LYNN KEVIN R. HARVEY REGINA L VELY JOAN B. LOVELY ARTHUR C. SARGENT III LEONARD F O'LEARY KIMBERLEY L. DRISCOLL MICHAEL A.BENCAL JOSEPH A. O'KEEFE, SR. MEMORANDUM FILE COPY September 26, 2002 TO: Mr. Thomas St. Pierre, Salem Inspector of Buildings Ms. Denise Sullivan,Ass't City Planner, DPCD Mr. Frank Kulik, Chief Assessor FROM: Joseph A. O'Keefe, Sr. Councillor Ward 7 SUBJECT: Pierce Road(Ward 7) Several residents of Buchanan Road(Ward 7) contacted me yesterday about the recent auction of a 6400 square foot parcel of property on Pierce Road. They are concerned about future use of that lot which would abut their property at the rear. Pierce Road at parcel is a paper street. I was not the councilor when the issue of proposed development of two house lots was advanced. I need to bring myself up to speed on this issue. While I familiarize myself with documents, decisions,findings of fact, etc. on this issue please alert me to any inquiries/actions from the new owner(s) of this lot on any proposed residential development there. I would be opposed to any additional residential development on Pierce Road and at that lot in particular. Respectfully, Ctv of �ttlpm, a` ass Ifilut !a 3a Pnttra of �kpeal '� i999 l - 31 P 1: 3q a , DECISION OF THE PETITION OF TIMOTHY & AMY SALVO REQUESTING A WETLANDS AND FLOOD HAZARD VARIANCE FOR THE PROPERTY LOCATED AT 265 LORING AVENUE R-1 A hearing on this petition was held on April 21, 1999 and continued monthly until August 18, 1999 with the following Board Members present: Nina Cohen, Chairman, Ronald Harrison, Michael Ward, Stephen Buczko and Stephen Harris. Notice of the hearing was sent to abutters and others and notices of the hearing were published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. The petitioners are requesting a Variances under Section 7-1.6 (g) of the Zoning Ordinance to construct a single family dwelling on the property located at 265 Loring Avenue also known as Lot 316 Pierce Road located in an R-1 zone. Section 7-16 (g) of the Ordinance states; A variance may be granted from the provision of this section in accordance with the terms of this zoning ordinance and with the terms of Massachusetts General Laws, Chapter 40A, Section 10, but only upon the following additional terms and conditions: (1) A special permit has been applied for in accordance with this section and has been denied. (2) The board of appeals shall only grant a variance from the provisions of this section upon: a. A showing of good and sufficient cause* b. A determination that failure to grant a variance would result in exceptional hardship to the applicant;* c. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expenses, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances;* and d. A determination that the variance is the minimum necessary to afford relief* (3) Along with the petition for a variance hereunder, the petitioner shall file; i a. A written report describing the proposed development or use relative to the conditions in this subsection (g); b. The special permit application as filed with the planning board; c. A copy of the planning board decision relative to the Special Permit The board of appeals shall establish a hearing on the petition under the provisions of Chapter 40A of the Massachusetts General Laws and in accordance with the board's DECISION OF THE PETITION OF TIMOTHY & AMY SALVO REQUESTING A WETLANDS AND FLOOD HAZARD VARIANCE FOR THE PROPERTY LOCATED AT 265 LORING AVENUE R-1 page two administration rules, section 9-3 of this ordinance, and shall notify the planning board, city engineer, board of health, conservation commission and historical commission of said hearing. The board of appeals shall notify the applicant in writing of its decision on the petition. In the event a variance is granted, the board shall document in its decision the nature of the variance from the provisions of the wetlands and flood hazard districts as well as the grounds for its granting. A variance from the flood hazard district shall include the following statement; " The construction of a structure below the base flood level increases risks to life and property and will result in increased premium rates for flood insurance up to amounts as high as $25.00 for$100.00 of insurance coverage". The board of appeals shall, as a condition of the variance, require that a copy of the variance be recorded by the applicant at the registry of deeds. The Variance, which has been requested, may be granted upon a finding by this Board that: 1. Special conditions and circumstances exist which especially affect the land, building or structures involved and which are not generally affecting other lands, buildings and structures involved. 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 derogating from the intent of 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 facts: 1. Petitioner Tim Salvo is seeking a variance for a Special Wetland Permit pursuanto Article V 11, Section 7-16 (g) of the Zoning Ordinance in order to build a single family home on the lot at 265 Loring Avenue , also known as Lot #316 Pierce Ind. ' 2. Petitioner Joyce Salvo is seeking a variance pursuant to Art. VIII, Section 7-16 CD> to construct a single family house at 265 Rear Loring Ave., also known as Lot # 7 � Pierce Road. M w D Jr SALEt1 MA uL-F:K,'S OFFICE DECISION OF THE PETITION OF TIMOTHY & AMY SALVO REQUESTING A WETLANDS AND FLOOD HAZARD VARIANCE FOR THE PROPERT LQCATED AT 265 LORING AVENUE. R-1 1999 nUG 31 page three 3. Both petitioners' properties lie within the Wetlands District Buffer Zone as defined by the Salem Zoning Ordinance. The properties are also within the Flood Hazard District as defined by the Ordinance. As such, the proposed development could have been approved by the City of Salem Planning Board. The Salvos applied to the City of Salem Planning Board for special permits pursuant to Section 7-16 (c) of the Ordinance, which gives the Planning Board authority to grant a special permit to construct homes within the Wetlands and Floor Hazard District. 4. The Planning Board denied the Salvos application for special permits pursuant to Section 7-16 (c). See decisiotLof the Planning Board dated February 28, 1997. The Salvos appealed the decision of the Planning Board, and theparties anticipate a trial on this appeal in September 1999. . 5. Notwithstanding, the pendency of the Salvos' appeals, the Zoning Board of Appeals heard argument at its May 19, 1999 general meeting on the question whether two variances could be issued to the Salvos pursuant to Section 7- 16(8) of the Ordinance. The Zoning Board also heard argument at subsequent meetings that were attended by the Salvos, their attorney Edmund C. Smith, concerned neighbors and City Councillor Mark Blair, Ward 7. 6. Neighbors opposed to the proposed development raised concerns regarding the hazards of water runoff from and through the site, flooding on the site, damage to marsh —dwelling wildlife, traffic safety from cars exiting onto and entering from Loring Avenue, preservation of wetland and neighborhood density. Among those who appeared and spoke in opposition to the proposals were: Loretta and Randall Wieting, Robert Mackay, Cathy O'Donnell, Gerogette Gay, Anthony Zarkades, Gene McCarthy and Ward 7 City Councillor Mark Blair. 7. Friends and neighbors speaking in support of the proposal argued that the development would improve a vacant lot, that the Salvos had obtained permits from relevant state agencies regarding traffic flow and conservation issues, and that the construction of housing of properties on the site would contribute to overall tax revenue in the City of Salem. Among those who spoke in favor of the petitioners were: Arthur King, Victoria Kulik, Clayton Smith, George Levesque, Robert Blenkhorn and Gary Pierce. Steve Salvo and Tony Salvo, father and uncle to the petitioner also argued in support of the petitioners. 8. In May the Zoning Board solicited an opinion from William Lundrergan, City Solicitor, regarding the legality of hearing the Salvo petitions while the outcome of the Salvos' appeal was pending. The City Solicitor issued an opinion on that subject on June 8, 1999. DECISION OF THE PETITION OF TIMOTHY& AMY SALVO REQUESTING A WETLANDS AND FLOOD HAZARD VARIANCE FOR THE PROPERTY LOCATED AT 265 LORING AVENUE R-1 page four See letter of William Lundregan to Nina Cohen. The Zoning Board also received notice from Craig L. Wheeler, of this opposition to the issuance of a variance under Section 7- 16 (g) of the ordinance. See letter of Craig Wheeler to Nina Cohen, dated April 16,1999. The Salvos vigorously opposed these positions in correspondence directed to the Zoning Board from Attorney Edmund C. Smith and in open argument. 9 The Zoning Board of. peal did not make specific findings regarding the issues of traffic s ifetr W tef-iim-and flooding, or conservation raised by the neighbors in oppo�tion togetitib , 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. Petitioners have shown good and sufficient cause. 2. Failure to grant a Variance would result in exceptional hardship to the applicant, 3. The granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expenses, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances; On the basis of the above findings of fact, and on the presented at the hearing, the Zoning Board of Appeal voted 4 in favor and 1 in opposition, to grant the variances 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 the plans and dimensions submitted and approved by the Building Inspector. 3.All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner is to obtain a building permit prior to beginning any construction. DECISION OF THE PETITION OF JOYCE SALVO REQUESTING A WETLANDS AND FLOOD HAZARD VARIANCE FOR THE PROPERTY LOCATED AT 265 LORING AVENUE page five 5. A Certificate of Occupancy is to be obtained. 6. Petitioner shall obtain proper street numbering from the City of Salem Assessors office and shall display said number so as to be visible from the street. Petitioner is to obtain approval from any City Board of Commission having jurisdiction including,but not limited to, the Planning Board and Conservation Commission. 8. DEP Conditions to be adhered to. 9. A 4 ft. wooded fence shall be erected and maintained around the perimeter of the property. 10. Signs shall be posted "No Left Turn" into or out of the property. Variance Granted August 18, 1999 � /� i (/ 0,` , cgc r� Nina Cohen, Chairman Board of Appeal i clEQ 5NiNiNV1d IA's-Ivs DECISION OF THE PETITION OF TIMOTHY & AMY SALVO REQUESTING A WETLANDS AND FLOOD HAZARD VARIANCE FOR THE PROPERTY LOCATED AT 265 LORING AVENUE R-1 page five 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 Certificatio of the City Clerk that 20 days have passed an 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. r"c rn �r T j r y t17 SEPTEMBER 17, 2001 CERTIFICATE OF OCCUPANCY ISSUED ON PERMIT 11699-1999 265 LORING AVENUE NEW SINGLE FAMILY DWELLING -;O000w SALEM BUILDING INSPECTOR } •Ila. t I�� rsor¢ eo CITY OF SALEM BUILDING PERMIT J'OB SITE COPY �DND,T CITY OF SALEM BUILDING M�NEo� SALEM, MASSACHUSETTS 01970 PERMIT DATE OCTOBER 11715 19 99 PERMITNO. 699-1999 APPLICANT •JOYCE P..SALVO ADDRESS ZII._.20NS LANE 1947 (N0.) (STREET) (CONTR'S LICENSE) CITY SALEM STATE MA ZIP CODE 01 370 TEL.NO. 978-744-2721 NEW BUILDING ONE FAMILY NUMBEROF 1 PERMIT TO ( ) STORY DWELLING UNITS (TYPEOF IMPROVEMENT) NO. (PROPOSED USE) ZONING AT(LOCATION) 0265 LORING AVENUE DISTRICTR1 (NO.) (STREET) BETWEEN AND (CROSS STREET) (CROSS STREET) SUBDIVISION MAP 31 LOT 01316BLOCK LOT 00290,210 SQ FT BUILDING IS TO BE FT.WIDE BY FT.LONG BY FT.IN HEIGHT AND SHALL CONFORM IN CONSTRUCTION TO TYPE USE GROUP BASEMENT WALLS OR FOUNDATION (TYPE) REMARKS: NEW •S'I NGI._E FAMILY PER PLANE:3 SUBMITTED. CON COMM APPROVAL. B. O. A. APPROVAL AREA OR CG/]II for Permit 11lO O1cCupy PERMIT VOLUME (CUBICISOUARE FEET) ESTIMATED COST$ 80, 000 FEE $ 485. 00 OWNER SALVO TIMOTHY J BUILDING DEPT. ADDRESS 1.33 LYNN 5'T BY P. S. THIS PERMIT CONVEYS NO RIGHT TO OCCUPY ANY STREET,ALLEY OR SIDEWALK OR ANY PART THEREOF,EITHER TEMPORARILY OR PERMANENTLY,ENCROACHMENTS 100. ON PUBLIC PROPERTY,NOT SPECIFICALLY PERMITTED UNDER THE BUILDING CODE,MUST BE APPROVED BY THE JURISDICTION,STREET OR ALLEY GRADES AS WELL AS DEPTH AND LOCATION OF PUBLIC SEWERS MAYBE OBTAINED FROM THE DEPARTMENT OF PUBLIC WORKS.THE ISSUANCE OF THIS PERMIT DOES NOT RELEASE THE APPLICANT FROM THE CONDITIONS OF ANY APPLICABLE SUBDIVISION RESTRICTIONS. MINIMUM OF THREE CALL INSPECTIONS APPROVED PLANS MUST BE RETAINED ON JOB AND THIS CARD KEPT WHERE APPLICABLE SEPARATE REQUIRED FOR ALL CONSTRUCTION WORK: POSTED UNTIL FINAL INSPECTION HAS BEEN MADE. WHERE A PERMITS ARE REQUIRED FOR 1.FOUNDATIONS OR FOOTINGS. CERTIFICATE OF OCCUPANCY IS REQUIRED,SUCH BUILDING SHALL ELECTRICAL,PLUMBING AND 2.PRIOR TO COVERING STRUCTURAL MECHANICAL INSTALLATIONS. MEMBERS(READY TO LATH). NOT BE OCCUPIED UNTIL FINAL INSPECTION HAS BEEN MADE. 3.FINAL INSPECTION BEFORE OCCUPANCY. POST THIS CARD`SO 1 IS VISIBLE FROM-STREET BUILDING INSPECTION APPROVALS PLUMBING INSPECTION APPROVALS / ELECTRICACdNSPECTION APPROVALS .� a, �. z z n z 9/,3��� oy ✓--�� OARD 0 EALTH GAS INSPECTION APPROVALS FIRE DEPT.INSINCTING APPROVALS • 9/i 0/ OTHER CITY ENGINEER 2 Z ' A4 / ! h i WORK SHALL NOT PROCEED UNTIL THE PERMIT WILL BECOME NULL AND VOID IF CONSTRUCTION WORK IS INSPECTIONS INDICATED ON THIS CARD, INSPECTOR HAS APPROVED THE VARIOUS NOT STARTED WITHIN SIX MONTHS OF DATE THE PERMIT IS ISSUED CAN BE ARRANGED FOR BY TELEPHONE STAGES OFCONSTRUCTION. AS NOTED ABOVE. OR WRITTEN NOTIFICATION. 0 CITY OF SALEM - MASSACHUSETTS WILLIAM J.LUNDREGAN Legal Department JOHN D.KEENAN City Solicitor Assistant City Solicitor 81 Washington Street 93 Washington Street 60 Washington Street Tel:978-741-3888 Salem, Massachusetts 01970 Tel:978-741.4453 Fax:978-741-8110 Fax:978-740-0072 Memo to : Nina V. Cohen, Chairman Zoning Board of Appeals From: William J. Lundregan, City Solicitor Dated: June 8 , 1999 RE : Salvo Petitions I am in receipt of your letter to me dated May 26 , 1999 regarding the latest petitions of Timothy and Amy Salvo, and Joyce Salvo, in which you ask the following questions : (A) whether the Board can exercise jurisdiction to grant a petitioner ' s request to issue a "Special Wetland Permit" under Article VII , Section 7-16 (g) , to allow private homes to be constructed on the subject property while the petitioners are simultaneously pursuing an appeal of the Planning Board' s decision denying such permits and prior to any resolution of the appeal by the Land Court; and (B) whether the Board can exercise jurisdiction to grant a petitioner ' s request to issue a "Variance from the construction of a paper street" under the same provision while the petitioners are pursuing an appeal of the Planning Board ' s decision denying such relief and prior to any resolution of the appeal . 1 I am also in receipt of copies of letters to you from Craig Wheeler, Edmund Smith, Esq. , and James M. Fleming, Esq. , all weighing in on these issues . I have reviewed the arguments raised in the said letters, and the applicable provisions of the City of Salem Zoning Ordinance, and I have concluded that Craig Wheeler is correct : the Planning Board has jurisdiction over both petitions, and not the Zoning Board of Appeals . Regarding the matter of Timothy and Amy Salvo ' s application for a Special Wetlands Permit, please be advised that the Salem Zoning Ordinance states, in Section 7-16, "Wetlands and flood hazard districts, " in subsection (c) , "Permitted uses, " that : Any uses permitted in the portions of the zoning districts so overlaid may be permitted as an exception if authorized by special permit by the planning board . . . . (Emphasis added. ) Thus, it is clear that the Zoning Board of Appeals cannot grant a Special Wetlands Permit . The argument pressed by Attorneys Smith and Fleming, that since the Planning Board previously denied the Salvos ' application for a Special Wetlands Permit , they may now apply for a variance pursuant to Section 7-16 (g) , ignores the fact that the Salvos appealed the Planning Board' s decision to the Land Court, wherefore that Court now has exclusive jurisdiction over this matter. The Zoning Board may not exercise simultaneous jurisdiction over a matter that has been committed to the Courts . And if the Salvos wish to bring an entirely new application, then, pursuant to Section 7-16 (c) , they must first apply to the Planning Board. Thus, either way, the Zoning Board of Appeals has no jurisdiction over the Salvos ' present application for a Special Wetlands Permit . 2 Regarding the matter of Joyce Salvo ' s application for a variance from the construction of an access road over a paper street (Pierce Street) to Lot 317, please be advised that according to the Salem Subdivision Regulations, the Planning Board has exclusive jurisdiction over the question of access to lots within a subdivision. Attorney Fleming presses the same argument on behalf of Joyce Salvo ' s right to seek relief from the Zoning Board of Appeals as he urged on behalf of the petition brought by Timothy and Amy Salvo, and that argument fails here as well , for the same reason: the Salvos appealed the Planning Board' s decision to the Land Court, wherefore that Court now has exclusive jurisdiction over this matter. Attorney Smith argues that Ms . Salvo may construct a private access road as a matter of right, pursuant to Section 7- 16 (c) (8) (c) of the Zoning Ordinance, and that, since construction of the road upon Pierce Road is not possible, the Zoning Board of Appeals has the power to waive this requirement . Please be advised that this argument involves one of the very issues that is presently pending before the Land Court, and it would be presumptuous (and of doubtful legality) for the Zoning Board of Appeals to attempt to usurp the Court ' s prerogative in this matter. Moreover, Attorney Smith ' s argument is simply wrong as a matter of substantive law. In a memorandum filed in the Land Court case, the Salvos erroneously argue that : The plaintiffs ' need a special permit to build the single family residences authorized for R-1 zones . However, construction of single family homes is permitted as an exception to the overriding wetlands regulations. No other regulations apply, since they may otherwise build as of right , provided they have legal "access" . (Plaintiffs ' memorandum, at p . 8 , emphasis in the original . ) 3 The argument is fallacious . First, the plaintiffs admit that they need a special permit in order to build; but it is well-settled that nobody has a right to a special permit . Indeed, a board it is free to deny a special permit even if the facts show that such a permit could have been lawfully granted. Humble Oil & Refining Co. v. Board of Appeals, 360 Mass 604 (1971) ; Pioneer Home Sponsors, Inc. v. Board of Appeals, 1 Mass .App .Ct . 830 (1973) . Secondly, the Zoning Ordinance, itself, forbids any suggestion that the plaintiffs have a right to build upon their lots . Again, Section 7-16 , "Wetlands and flood hazard districts , " at subsection (c) , "Permitted uses, " provides, in pertinent part, that : The wetlands and flood hazard districts shall be considered as overlying other zoning districts . Any uses permitted in the portions of the zoning districts so overlaid may be permitted as an exception if authorized by a special permit by the planning board (see subsections (d) and (e) below) . . . . (Emphasis added. ) Lest there be any doubt about the discretionary nature of the relief authorized by Section 7-16, Article II , "Definitions, " Section 2-1 , "General Rules, " declares, in pertinent part, that , " (t) he word shall is mandatory; the word may is permissive" (emphasis in the original) . The end result is this : one may construct a single-family residence in an R-1 district as of right ; however, if such R-1 district is overlain by a wetlands and flood hazard district , then one may only build upon obtaining a special permit from the Planning Board. In their Land Court memorandum, the Salvos also attempt to derive a "right" to build from subsection (8) of Section 7-16 (c) , which does permit , as of right : " (p) rivate paved driveways serving a single-family residence where alternative means of access are 4 inappropriate and not reasonably feasible . " The problem with the Salvos ' argument is that the construction of a single-family v residence is not among the enumerated uses that an owner may enjoy as of right; as we have seen, it is among those uses which the Planning Board "may" allow by special permit . Thus, the Salvos have no "right" to construct their project, and the Zoning Board of Appeals cannot now grant Joyce Salvo a variance from the construction of an access road over a paper street (Pierce Street) to Lot 317 . I hope the foregoing has been of assistance . If you have any further questions or concerns, please do not hesitate to contact this office . Thank you. S