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11 OCEAN TERRACE - BUILDING INSPECTION no- m UPC 10330 �. No. 153E MATINGS, MN ZONING BOARD OF APPEALS PETITION FORM coNelr CITY OF SALEM, MASSACHUSETTS ZONING BOARD OF APPEALS 2013 MAR 21 P I: 31 120 WASHINGTON STREET,3m FLOOR - F)i F # 9% 7 ' SALEM,MASSACHUSETTS 01970 < c x c C CITY CLeFiit, �hL..M. i�f,;,5. Thomas St.Pierre,Director of Inspectional Services Mln&11`^ t.978-619-5641/f 978-740-9846 Danielle McKnight,Staff Planner t. 978-619-5685/f.978-740-0404 TO THE BOARD OF APPEALS: The Undersigned represent that he/she is/are the owners of a certain parcel of land located at - Address: q-11 0ce,4n1-1-ea4Ace Zoning District: - k-1 An application is being submitted to the Board of Appeal for the following reason(s): This statement must describe what you propose to build, the dimensions, the zone property is in,and the zoning requirements. Example: I am proposing to construct a IO'x 10'one story addition to my home located at 3 Salem Lane, in the R-2 Zoning District. The Zoning Ordinance requires the minimum depth of the rear yard to be 30 feet. The current depth of my rear yard is 32 feet;the proposed addition would reduce the depth of the rear yard to 22 feet. - Petitioner is seeking two (2) affirmative votes from the Zoning Board Of Appeals ("Board") under this application. (1) Following the required approval vote ot the Planning t3oard in its adverf1s-eUWe—a5ng­-ofN arch 21, 2013,that Petitioner's revised Special Pe nit ne.itcd ieconsideiation by this Bud. 26, M17 r1pnW riprogorm of eptitionprfg gr6gmal'pacial Permit submitted October 24, 2012 based on the statut ry criteria MGL c. 40A sec. 16. Petitioner is therefore requesting this Board make its own indpppndpnt evaluation whether this second petition filed herewith meets the statutory requirements of M.G.L. c.40A sec. 16 and if it so determines to then;(2)consider and vote on Petition#2 filed with this application.See attached statement. For this reason I am requesting: O Variance(s)from provisions of Section of the Zoning Ordinance,specifically from (i.e. minimum depth ofrearyard). What is allowed is (ft?sq ft?stories? %?), and what I am proposing is (ft?sq ft?stories?%?). ()o A Special Permit under Section 3.3.k of the Zoning Ordinance in order to SW5 4-sr-Acl,eC(*r4TCMfVr O Appeal of the Decision of the Building Inspector(described below): The Current Use of the Property Is: Are the lot dimensions included on the plan? t (example: Two Family Home) TA,�c wn.ott/X rm9 ( ()Yes*( )Non/abecause - i.ILy stjcj ,.rl: 9R{an rtfple c4Tt Jn1 The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem Zoning Ordinance and allow the project to be constructed as per the plans submitted,as the enforcement of said Zoning By-Laws would involve ` ZONING BOARD OF APPEALS PETITION FORM practical difficulty or unnecessary hardship to the Undersigned and relief may be granted without substantially derogating from the intent and purpose of the Zoning Ordinance. The following written statement has been submitted with this application: - ( )For all Variance requests a written Statement of Hardship demonstrating the following must be attached: a) Special conditions and circumstances that especially affect the land,building,or structure involved, generally not affecting other lands,buildings,and structures in the same district; b) Literal enforcement of the provisions of the Ordinance would involved substantial hardship to the applicant;and 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. - - (y)For all Special Permit requests a Statement of Grounds must be attached. An application for a special permit for a nonconforming use or structure shall include a statement demonstrating how the proposed change shall not be substantially more detrimental than the existing nonconforming use to the neighborhood in accordance with Art.V, §5-3. Such a statement should include reference to the following criteria: a) Social,economic,or community needs served by the proposal; b) Traffic flow and safety,including parking and loading; c) Adequacy of utilities and other public services; d) Impacts on the natural environment,including drainage; e) Neighborhood character;and f) Potential fiscal impact,including impact on City tax base and employment. Previous applications to the Board of Appeals involving this property have been submitted with this petition form. The Building Commissioner can provide documentation ofprevious applications to the petitioner or his representative. If differentfrom petitioner: Petitioner: M.47149w &oki) Property Owner: Address: 34 FL ei-Il&rmw r.a4,.Z Address: Telephone: �F./6'5� 14 f4 Telephone: Signature Signature(Attached consent letter is also acceptable) 3 2 l3 Date Date 7f different from petitioner: ,,qq A TRUE Representative: t te4 Jec c ATTEST n Address: r-0 fsLw-nd <S'7. Sv)rf, rDYf- Telephone: -7`1 57,S© • , Signature ®® M'6t 2d?`I "Zat3 Date DATE SUBMITTED TO BOARD OF APPEALS: ZONING BOARD OF APPEALS PETITION FORM CITY CLERK This original application must be filed with the City Clerk. e . P SALEM ZONING BOARD OF APPEALS PETITIONER-Matthew Banko PREMISES:three family residence at 9-11 Ocean Terrace REQUEST: Reconsideration under MGL c.40A sec. 16 with subsequent vote on Special Permit Petition#2 A. Petitioner, Matthew Banko ("Banko,") is seeking reconsideration under MGL c.40A sec. 16, which sets forth the statutory exception to the two-year waiting period for a permit granting authority to reconsider a prior unfavorable vote and requires a finding of"specific and material changes in the conditions,upon which the previous unfavorable action was based and describes such changes in the records of its proceedings. (See copy of statute attached as Exhibit 1). 1. The preliminary statutory requirement for Banko's entitlement to a second Special Permit vote by the Board of Appeal ("Board") is the advertised notice of and a public hearing on Petitioner's reconsideration request and a necessary favorable vote by the Salem Planning Board.The initial requirement has been satisfied with a unanimous approval vote by the Planning Board at its meeting of March 21, 2013. 2. The second requirement says the Board must make its own independent determination of whether the statutory requirements of MGL c.40A section 16 have been met by examining the prior Special Permit modification petition (Petition#1), attached hereto as Exhibit 2 and this new Special Permit modification petition (Petition#2 ) in order to determine if there are specific and material changes in the two petitions upon which the previous unfavorable vote occurred and changes in the conditions, upon which the prior unfavorable action was based. If a favorable vote for reconsideration is obtained, Petition#2 will be presented for a vote. B. Petition#2 INTRODUCTION In this Petition#2, Petitioner, Banko, is again asking The Board for a modification to the Premises'July 1, 2010, outstanding Special Permit, which specifies that permitted uses for the Premises are as an owner-occupied three family with two rental units(an allowed use for the Premises since the grant of a 1980 special permit)or as a three unit, all owner- occupied condominium (an allowed use since the July 1, 2010 Special Permit).Copies of the applicable three special permits for the Premises are attached as Exhibit 3. Failure to abide by the special permit conditions in place since 1980 will cause the Premises to revert to its prior status as a two-family with the accompanying loss of the right to maintain a legal three unit condominium. Banko's current Petition#2 application concerns a modification to the provision allowing the condominium use, as Petitioner has prepared and recorded condominium documents and is attempting to sell the first floor and second-floor units to owner occupants.(See Petition#1 ). Contrary to the relief requested in Petition#1 and set forth in the Board's advertisement for the first hearing, Petition#2 seeks no relief from or exception to the requirement that all units.be owner-occupied and marketed only to intended owner-occupants, even in the case of a unit foreclosure by a unit owner's mortgage holder. The principal material change in Petition#1 and Petition#2 is illustrated by the statement contained in the first sentence of paragraph 2 of this Board's December 26, 2012 decision on Petition#1 (attached hereto as Exhibit 4): "In a petition.date-stamped October 24,2012, Petitioner requested elimination of the owner/occupancy requirement so that he could convert the apartments to condominiums." This does not represent the relief requested or the conditions prevailing under Banko's Petition #2. Petition#1 and its contrasting language is set forth in Exhibit 2 without the original exhibits (which are part of the Board's file), in order that the Board can compare and contrast the same with this Petition#2. The primary change in circumstances from Petition#1 to Petition#2 is Banko's new understanding that prospective mortgage lenders do not require the elimination of the owner occupancy requirement as it applies to the exercise of the power to foreclose unit mortgages, but rather will remain bound by the provision when deeding any foreclosed Premises unit to a new buyer. The other relevant condition not known to Banko and not presented to this Board at the first hearing on December 19, 2012, was that two neighboring three family premises, 1-3 Ocean Terrace and 5-7 Ocean Terrace,which also were specially permitted in the 1980s to convert a two-family use to a three family owner-occupied use, had since both been converted to three unit condominiums, but applicable permit history did not restrict the condominium to the unit owner occupancy requirement applied to Banko's 9-11 Ocean Terrace Premises. Petition#2-Statement of reasons supporting Application for Special Permit Modification This Special Permit Application of Matthew Banko is being resubmitted to the Board of Appeals based f on a specific and material change in the requested relief qualifying this application for reconsideration . t under M.G.L.c.40A§Sec. 16 without the necessary two-year waiting period. { 1. Matthew Banko is the record owner since 1996 and the current third floor occupant of a three family residential dwelling situated at 9-11 Ocean Terrace (the "Property"). The Property is currently being used as a three family residential dwelling and is a pre-existing non-conforming use and structure in the R-1 zoning district in which it is located. 2. The 9—11 Ocean Terrace premises is subject to three prior special permits, copies of which are attached hereto as Exhibit 3.The first dated September 10, 1980,allowed the conversion of a two-family to a three family, conditioned on the owner's continued occupancy of the premises. The second, dated April 10, 1986, continued the owner occupancy requirement and limited the premises use to four(4)vehicles and seven (7) persons as residents.The third Special Permit dated July 1, 2010 was presented by the current Petitioner and eliminated the seven (7) person residents restriction and clarified that the owner occupant provision was not limited to the original owner,so that the premises could be sold to a future owner occupant without reversion to a two-family.As part of the vote the Board stated in condition#1 "Structure is to remain owner-occupied with two rental units and one owner occupied unit,or all owner-occupied condominiums" This is the provision at issue in the pending Special Permit reconsideration submission. 3. The Building Inspector can confirm that this neighborhood consists primarily of three and other multifamily family structures, notwithstanding its designation as an R1 zoning district. In fad, subject matter premises 9—11 Ocean Terrace,together with 1—3 Ocean Terrace and 5—7 Ocean Terrace were all pre-existing two families that were allowed by special permit and/or variance to convert to three family/owner-occupied premises. Records of these special permit conversions are available in the building inspector's office. Neither of these two other properties contain a condominium owner occupancy restriction and both properties have since been converted to a three unit condominiumunder the provisions of the condominium statute, MGL chapter 183A 4. Matthew Banko executed and recorded papers establishing a three (3) unit residential condominium entitled the 9-11 Ocean Terrace Condominium created by Master Deed dated August, 2012; which is recorded in the Essex South District Registry of Deeds Book 31626, Page 610(A copy of which is part of the record filed with his Permit#1 application). 5. The first floor Condominium Unit 1 and the second floor Condominium Unit 2 were professionally listed and went under contract for sale to intended owner occupants,as required by the above referenced 2010 Special Permit condition#1 above. 6. Both prospective purchasers had their loans denied because title insurance was not available to insure the proposed mortgages, because there was no exception to the owner occupancy t requirement to cover the possible temporary circumstance where a foreclosure takes place and title is temporarily held in the name of the lending bank, until the lending bank can market and sell the foreclosed unit to a successor owner occupant. 7. Because this temporary or interim period following a foreclosure technically activates condition #2 of the Special Permit of the 2010, arguably triggering a conversion of the Premises to a two- family,the Petitioner for himself and in behalf of prospective owner occupants who will need financing to purchase a condominium unit, is requesting that the automatic reversion to a two- family premises be temporarily waived only as it applies to the interim temporary period between a foreclosure and the foreclosing bank's subsequent sale to the required owner occupant. 8. Petitioner's requested special permit modification relief is specifically not seeking or asking the Board to waive the owner occupancy requirement for any future condominium unit owners under the 2010 Special Permit, rather, Petitioner is asking this Board to carve out a temporary exception to address only that exceptional circumstance of a necessary foreclosure by a future unit owner occupant's lender. Requested Relief: Therefore, pursuant to Section 3.3.4 of the Zoning Ordinance, Matthew Banko seeks a fourth Special Permit from the Board applicable to his Premises at 9-11 Ocean Terrace, that will allow him to sell the three condominium units to owner occupants under the owner occupied restriction, while allowing those prospective owner occupants,to obtain financing, which otherwise is unavailable, without an exception for short-term/interim ownership by a foreclosing lender that will still be required to maintain the existing unit owner occupancy requirement without any two-family reversion or loss of condominium status. Banko is therefore seeking a fourth Special Permit which will modify the prior Special Permits affecting his Premises as issued by the Board in 1980, 1986, and 2010. This Special Permit will allow Banko to convert and market the Premises as three (3)condominiums. This request for Special Permit must modify the Board's unconditional order of a reversion of the of the Premises from its current three family dwelling to a two-family dwelling, if any future unit owner of the newly established three unit residential condominium involuntarily forfeits his or her owner occupant status due to a foreclosure. Statement of Grounds In Support of Special Permit under Article V Section 5-3: The Board should grant this Special Permit application because it meets all of the requirements for a special permit outlined in Sections 3.3.2 and 9.4.2 of the Zoning Ordinance. It has been determined by this Board in three prior decisions over three decades that the conversion and maintenance of this property from its original nonconforming two-family dwelling to a nonconforming three family residential dwelling within this R-1 district, with certain conditions promoting owner occupancy, was in the public interest and was not more detrimental than any of the existing nonconforming uses and structures in the neighborhood. The approval of this re-submitted Special Permit application will allow the Petitionerto market and sell the Premises as three (3) individual r owner-occupied condominium units,with provisions that will allow the intended condominium unit purchasers to obtain mortgage financing and title insurance. This Special Permit modification will enhance neighborhood owner occupancy rates and will have a positive social,economic and community effect, including a positive impact on the City's tax revenue base,without increasing any need for City services as residential density remains unchanged under the owner occupant three unit condominium, f conversion. There will be no increase in the traffic or parking with this owner-occupied condominium conversion. The demands placed on the utilities and public services will not increase as a result of this conversion,there will be no negative impact on the natural environment or the views, and the character of the neighborhood will not be affected. The potential fiscal impact, including the impact on the tax base,will be a positive development, providing more tax revenue to the City without any increased demands on the City services. Therefore,the overall needs of the community will be well served by granting Matthew Banko this Special Permit, which effectively permits and promotes the goal of individual condominium unit owner occupation. Respectfully submitted Matthew Banko, Petitioner By his attorney Michael M McArdle c Matthew Banko's Special Permit Application Under M.G.L. c. 401 X16 EXHIBIT I Subject: Westlaw Results : MA ST 40A s 16 From: westlaw@westlaw.com (westlaw@westlaw.com) To: Ibmcardle 85@yahoo.com; Date: Thursday, January 24, 2013 12:16 PM M.G.L.A. 40A s 16 C Eilective:[See Text Amendments] Massachusetts General Laws Annotated Currentness Part I. Administration o1 the Government (Ch. 1-182) + Title VII. Cities, Towns and Districts (Ch. 39-49A) + Chapter 40A. Zoning(Refs &Annos) »» s 16. Final unfavorable decisions by permit granting authorities; reconsideration; withdrawal of petitions for variance or applications for special permit No appeal, application or petition which has been unfavorably and finally acted upon by the special permit granting or permit granting authority shall be acted favorably upon within two years after the date of final unfavorable action unless said special permit granting authority or permit granting authority finds, by a unanimous vote of a board of three members or by a vote o1 four members of a board of five members or two-thirds vote of a board o1 more than five members, specific and material changes in the conditions upon which the previous unfavorable-action was based, and describes such changes in the record of its proceedings, and unless all but one of the members of the p ar mg board consents thereto and after notice is given to parties in interest of the time and place of the proceedings when the question of such consent will be considered. Any petition for a variance or application for a special permit which has been , transmitted to the permit granting authority or special permit granting authority may be withdrawn, without prejudice by the petitioner prior to the publication of Matthew Banko's Special Permit Application Under.M.G.L. c. 401 §16 EXHIBIT 2 ZONING BOARD OF APPEALS F%j PETITION FORM /0NING -S if 11"; 120 \,�f HNG I ON S I RIT I' 'lill,FLOOR 1: U.1-M. \L1,SS.1 I.-IT,�1)19 7() C[IL"SE hoillis st. Pierre,VE 11 Director�)f 11,J)"lioll 11 c 11'Ices 619-3641/f 978-710-9816 Danielle ,McKnight'SJ,tj Planner TO THE BOARD OF APPEALS: t' '1'8-619-56,15/f. 978-740-0404 ,'he Undersigned represent that he/she is/are the okvilers of a certain parcel of land located at: Address: Zoning District: An application is being submitted to the Board a lk�vr,o ille it hot Yoll 0-opose to billi(j. the dimen.violl f Appeal for the C01101ving reason(s): This, y1oleleo, /ant plopo.Vio'4 to coll.1 fl-Ilct a l0'.k /0' -%, the le zone property j-,r ill. fol,/the -oll,og '., , , nurst District The Zoning or'li'l,lane (j&j,fi I Cl/1"lentelli'v Exampi': Ordinance regainer loll fo"'Yhome locoll,el at 3 Solent Looe, ill the R-2 b),litig reduce IleThectoiellt ,depti,Of the'reco-yol-o,to 22 jeer. depth of in I filt2`14,s/7- For this reason I am requesting: O Variatice(s) from provisions of Section of the Zoning Ordinance;specificallyfrom What is allowed is (/.e. ...(le/ith Of rear am proposing is (ft? lqft?,%toi te,F? 71?)- and what I (9)A Special Permit Linder Section _off the Zoning Ordinance in order if) &T Sf r? k g vy- ------- Appeal of the Decision of the Building Inspector(described below); The Current Use of life Properly. is. (eloillple, Folflih-Home) Are the lot dimensions included on the plan? r/i Yes No o/a because I he Undersignedhereby petitions the f3oan'1(it*AJ)jX`l1j lo vat file terms of file .Bolero yoning, the project to be MINN 11cled as per(lie plans's[lbolift Pldctical difficulty of off[JeCC.S Sar),hard ed, IS the CotoOrdinance and allow ill I ship to the Undersigned Ice"len'of S,Llid 1011log L3y-[-zllvs �,ofjd involve 1! front file jole'll :uul gi ed and relief may be L!,allet, �v,fhoff substantially pulpo.Ne of [Ile Zoning Ordinance. ADA I VF ZONING BOARD OF APPEALS The following Wriltett .statement has beer]suhtnitted Mill this application: PETITION FORM Pur all Vari:utce requests a written Statcntett of Hardship denntttstr;ttlrt" the lidlowim, 0 Special conditions vol circumsumces than specially affect the land, building,or structure involved, . otos( be atutched: generally lint affecting other I;tnds, buildutgs, and structures le the s:une district; b) Literal enfancemem of the provisions of the Ordinance would im�ols'ed substanlial hardship to the ;Ippliean[; and C) Desirable reliet may be granted without substantial detriment to the public good, substantially derogaling front the intent of the district or the purpoand without nullifying or se of the ordinance. _ n "co all Special Penni]requests a Statement ofGromtds must be attached, An application for a s s snoncoubstantially store detrimenforming use or structure shall include a stateent dentnnstratin hospecial permit tin" ntal than the existing nonconforming use to the neighborhood in accordance with Art. V, 4 5-3. Such a statement should include reference to the following criteria: e the prop]sed change .churl not be a) Social,economic, or community needs served by the proposal; b) Traffic flaw and,safety, including parking and loading; c) Adequacy of utilities and other public services; d) lmpacls on the natural environment, including drainage; 0 Neighborhood character; and f) Potential fiscal impact, including impact on City tax base and employment. Previous applications to the Board of Appeals involving this property have been submitted with this petition form. The 8ui1ditt8 Canonisrioner ran provide docanteNation of previous applications to the petitioner or his representative. If different,from petitioner. Petitioner: %R ITLp Alj Property Owner. Address: .0i ,{��B,t� �� ��� Address: Telephone:-2a-4 a-4 y$—lex, Telephone: `�Tatc fir:. Signature -- Signature(Attached consent letter is also acceptable) Date Date A TRUE If different from pelitionerr ATTEST Representative: Address: Telephone:------------ _ Signature r Dale DATE SUBMITTED TO BOARD OF APPEALS: CITY CLERK ------------ Tlti.r nrigival application nuo+v beJilroi with the Cin'Clerk. TO: Salem Board of Appeals RE:Special Permit Application APPLICANT: Matthew Banko PROPERTY: 9-11 Ocean Terrace The application of Matthew Banko is being submitted to the Board of Appeal for the following reasons: • Matthew Banko is the record owner since 1996 and the current third floor occupant of a three family residential dwelling situated at 9-11 Ocean Terrace (the "Property"). The Property is currently being used as a three family residential dwelling and is a pre-existing non-conforming use and structure in the R-1 zoning district in which it is located. • Mr. Banko has recently executed and recorded papers establishing a three (3) unit residential condominium entitled the 9-11 Ocean Terrace Condominium created by Master Deed dated August8, 2012 and recorded in the Essex South District Registry Of Deeds Book 31626, Page 610 (copy filed with this application). Currently,the first floor Condominium Unit 1 and the second floor Condominium Unit 2, representing 75%of the beneficial ownership interest of the Condominium, are under contract for sale to prospective owner occupants (copies of the proposed purchase and sale agreements are filed with this application). • Both prospective purchasers are unable to close on either of the units because title insurance is not available because of the current reversion language in the Salem Zoning Board of Appeal's July 10, 2010 Special Permit decision contained in Conditions 1 & 2 of that decision (a copy of which, as recorded at said Registry of Deeds on August 13, 2010, is filed with this application, together with copies of prior Special Permits for the Premises issued following hearings on February 26, 1986 and September 30, 1980). This reversion language also applies to any proposed condominiums • Because of Conditions 1 &2 of the 2010 Decision, title insurance companies for the proposed buyers of Units 1 and 2 maintain that a subsequent foreclosure by an insured mortgage holder will legally result in a forfeiture of the Premises'condominium status and its three family dwelling status. Further, any unit owner's subsequent relocation, whether temporary or permanent, and a subsequent lease of that owner's unit, no matter the term,would also trigger the same forfeiture. Therefore, the title companies will not issue title insurance, which is necessary for any viable marketing of these residential condominium units. • A Modification of the special permits affecting the Property is therefore necessary in order to provide for viable and marketable residential condominiums as contemplated by Condition 1 of the 2010 Decision which provided Mr. Banko with the option of creating owner-occupied condominiums. A copy of the site plan recorded with the Master Deed is enclosed to show compliance with prior Special Permit parking limitations set forth in prior special permits. to Therefore, pursuant to Section 3.3.2 of the Zoning Ordinance, M'r. Banko seeks a Special Permit. ,from the Board of Appeals (the "Board")to allow him to create three condominium units from the existing apartments on the Property without any right of reversion. Mr. Banko is seeking a new special' permit which will supersede the prior Special Permits affecting this property issued by the Board in 1980, 1986, and 2010. This will allow Mr. Banko to convert the Property into three (3) condominiums.' This new Special Permit must eliminate the Board's unconditional order of a reversion of the Property from its current three family dwelling to a two-family dwelling, if any future unit owner of the newly established three unit residential condominium involuntarily forfeits his or her owner occupant status due to a foreclosure or if an original unit owner-occupant should at some time in the future relocates and leases said unit. t J The Board of Appeals should grant this Special Permit Application because this application meets all of the requirements for a special permit outlined in Sections 3.3.2 and 9.4.2 of the Zoning Ordinance. It has been determined by this Board of Appeal in three prior decisions over three decades that the conversion and maintenance of this property from its original nonconforming two-family dwelling to a nonconforming three family residential dwelling within this R-1 district, with certain conditions promoting owner occupancy,.was in the public interest and was not more detrimental than any of the existing nonconforming uses and structures in the neighborhood. The approval of this application will allow the applicant to market and sell the Premises as three (3) individual condominium units, with provisions that will allow the intended condominium unit purchasers to obtain mortgage financing and title insurance. This modification that will enhance neighborhood owner occupancy rates and will have a positive social, economic and community effect, including a positive impact on the City's tax revenue base,without increasing any need for City services as residential density remains unchanged under the condominium conversion. There will be no increase in the traffic or parking with this condominium conversion. The demands placed on the utilities and public services will not increase as a result of this conversion,there will be no negative impact on the natural environment or the views, and the character of the neighborhood will not be affected. The potential fiscal impact, including the impact on the tax base, will be a positive development, providing more tax revenue to the City without any increased demands on the City services. Therefore, the overall needs of the community will be well served by granting Mr. Banko a special permit allowing the conversion of the Property to three (3) condominiums without the restrictions contained in the earlier special permits. The requested modification will not derogate from the intended purpose of promoting owner occupancy of all three units under the pending and or future condominium unit sales. Too,-V ' Matthew Banko's Special Permit Application Under M.G.L. c. 401 X16 EXHIBIT 3 02/06/2013 14:42 6037552518 AJ CAMERON PAGE 01/02 CITY OF SALEM MASSACHUSETTS BOARD OF APPEAL 120 W,hsr(rNc'roN i1YHRr-7 $,\Lh,M,tY1hSSdfp[L'tio, y. 20 Ku Wiu.rw DRIscor,t, TEU;978.619-5(,85 0 Nex:978-740-0404 FILE N Mnroa CITY CLERK. SALEM,MASS. December 26,2012 Decision City of Salem Zoning Board of Appeals P.:tition of MATTHEW BANKO requesting to amend a previous decision of the Zoning Board ot'Appeals to eliminate the owner occupancy requirement from a Special Permit for th a prop•rtty located at 9-11 OCEAN TERRACE (R-1). Applicant also requests a Variance at d Special Permit to add a third-floor dormer to the structure. A )ublic hearing on the above Petition was opened on December 19,2012 pursuant to Mass G neral law Ch. 40x1, § 11. The hearing was closed on December 19,2012 with the following 7c ning B mtd of Appeals members present: Rebecca Curran(Chair),Annie Harris,Michael Duffy, Rig hard Dionne,and Jimmy Tsitsinos (alternate). Pe itioner seeks to amend a Special Permit granted on June 16, 2010 for the property located at 9-11 0c.-an Te:xxce,Salem. Petitioner also seeks relief putauant to Sections 4.0 and 3.3.4 of the Salem Ze ung O rdinance. - Sta temen is of fact: t. Three previous Special Permit decisions,date-stamped September 10, 1980,Match 12, 1986, and July '1,2010, had been issued for this property,allowing irs use as a three-famity house, with the condition that the premises remain owner-occupied, or it was to revert to a two- fanuly house. Z. In i[petition date-stamped October 24,2012,petitioner requested elimination of the owner- occupancy requirement so that he could convert the apartmenrs to condominiums. The pet tion also requested dimensional relief to construct a third-story dormer. i. AttOmey Michael IVICCardle reptesented the petitioner at the hearing. At the hearing, no member of the public spoke in favor of or in opposition to the petition. The Board of Appcals, after careful consideration of the evidence presented at the public hearing, and tfterthorough review of the plans and petition submitted, makes the following findings: 1 Matthew Banko's Special Permit Application Under M.G.L. c. 401 X16 EXHIBIT 4 M ,r CITY OF SALEM' MASSACHUSETTS e BOARD OF APPEAL / 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 FAX: 978-740.9846 KIMBERLEY DRISCOLL 2010 JUL -i P b: Dy MAYOR iLft 17 CITY C..Uiiti. July 1, 2010 IIII II JJI' II`II II ! Decision IIIIuIII�II�IIu�I�Illll�ll�1I�I�IIIlII1I�I� 2016081300397 809680 Pg:361 City of Salem Zoning Board of Appeals 08/13/2010 02:57 PE"IT Ps 113 Petition of MATTHEW BANKO seeking to amend a previously granted Special Permit for the property located at 9-11 OCEAN TERRACE (R-1). A public hearing on the above Petition was opened on June 16, 2010 pursuant to Mass General law Ch. 40A, § 11. The hearing was closed on June 16, 2010 with the following Zoning Board of Appeals members present: Robin Stein,Richard Dionne,Beth Debski, Jimmy Tsitsinos (alternate)and Bonnie Belair(alternate). Statements of fact: 1. Matthew Banko,the petitioner,and his son Joseph Banko,presented the petition at the hearing. 2. In a petition dated May 19,2010,petitioner requested an amendment to a Special Permit granted in 1980 which had allowed use of the property as a three-family dwelling under certain conditions. Petitioner requested to have conditions removed requiring occupancy by the previous owner,limiting the number of residents in the building to seven(7),and stipulating that the property revert to a two-family use if sold by the previous owner. 3. The property is currently used as a three-family home. 4. At the hearing,Matthew and Joseph Banko stated that they lived in the building. 5. At the hearing,Board members expressed concern about allowing a three-fancily use without any owner occupancy requirement;however, they would be willing to remove the condition requiring ownership by the previous owner, but the building must continue to be owner-occupied. .- 6. At the hearing,Board members and the Building Inspector discussed the condition limiting the number of residents in the building and concluded that local and state codes already placed appropriate limitations on the number of non- related residents of a dwelling,and that this condition was unnecessary. 2 The Board of Appeal, after careful consideration of the evidence presented at the public hearing,and after thorough review of the plans and petition submitted,makes the following findings; 1. Amending the previously granted Special Permit for the property to require owner occupancy(rather than occupancy specifically of the previous owner), remove the limitation of seven(7)residents living in the building, and allow the building to be sold without reverting to a two- family use,will not be more detrimental to the neighborhood than the existing nonconforming use. 2. The applicant may vary the terns of the Residential One-Family Zoning District to allow the above stated amendments to the previously granted Special Permit; such changes are consistent with the intent and purpose of the City of Salem Zoning Ordinance. 3. In permitting such change,the Board of Appeals requires certain appropriate conditions and safeguards as noted below. On the basis of the above findings of fact and all evidence presented at the public hearing including,but not limited to, the Plans,Documents and testimony,the Zoning Board of Appeals concludes: 1. The previously issued Special Permit allowing a three-family is amended to require owner occupancy(rather than occupancy specifically of the previous owner), remove the limitation of seven (7)residents living in the building,and allow the building to be sold without reverting to a two- family use. In consideration of the above,the Salem Board of Appeals voted five (5)in favor(Stein, Tsistinos,Debski,Dionne and Belair)and none(0)opposed,to grant petitioner's requests for an amendment to a Special Permit subject to the following terms,conditions,and safeguards: 1. Structure is to remain owner-occupied with two rental units and one owner occupied unit,or all owner-occupied condominiums. 2. I£the structure does not remain owner-occupied,it shall revert to its previous use as a two-family dwelling. 3. Condition#2 of the previously granted Special Permit is hereby revoked; the Special Permit now allows occupancy of an owner other than the owner to whom the previous Special Permit was granted and allows the building to be sold without reverting to a two-family use. 4. Condition#3 of the previously granted Special Permit is hereby revoked; the Special Permit now places no limitation on the number of people who may reside in the building. / 3 �D�n S�rn tp Robin Stein, Chair Salem Board of Appeals A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal fi'om 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 of filing of this decision in the office of the City Clerk. Pursuant to the 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 certificate of the City Clerk has been filed with the Essex South Registry of Deeds. Y r Date AUG 1 1 2010 I hereby certify that 20 days have expired i from the date this instrument was received, and that NO APPEAL has been filed in this office. ATrue Copy a. - - ATTEST.___.CITY LERK, Saitim, Mass. k s , BOOR 8268PC475 Oita of 'Salem, P1199acljusetts v r 2I3oarD of 'A}rpen[ DECISION ON THE PETITION OF MARK LIPTAK FOR SPECIAL PERMIT FOR 9-11 OCEAN TERRACE, SALEM A hearing on this petition was held February 26, 186 itthtpe } aing Board Members present: .James Hacker, Chairman; Messrs.,#941a1, Chit s trout and Associate Member Dore. Notice of the hearing was ��pp to abutters and others and . C notices of the hearing were properly published in Salem Evening News in accordance with Massachusetts General Laws Chaptertj44A•LERr "LEM.M►ss. Petitioner, owner of the property, is requesting modification of a Special Permit granted September 10, 1980 allowing premises to be used as three family in this R-1 district. The provision of the Salem Zoning Ordinance which is applicable to this requesN t . for a Special Permit.is- Section V B 10, which provides as follows: p. Notwithstanding anything to the contrary appearing in this Ordinance, D i ' the Board of Appeal may, in accordance with the procedure and conditions N set forth in Section VIII F and IX D, grant Special PErmits for alteratlops and reconstruction on nonconforming structures, and for changes, enlarge--O cent, extension or expansion of nonconforming lots, land, structures, and uses, provided, however, that such change, extension, enlargement or expansion shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. ,; In more general terms, this Board is, when reviewing Special Permit requests, 0- guided by the rulethat a Special Permit request may be granted upon a finding— by the Board that the grant of the Special Permit will promote the public healut•, - safety, convenience and welfare of the City's inhabitants. :j The Board of Appeal, after careful consideration of the evidence presented at the hearing; makes the following findings of. fact: 1. There was no opposition; 2. Premises has been used as three family since prior decision dated September 10, 1980. i � 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. The proposed use of the property will not be substantially detrimental to the neighborhood; 2. The proposed use of the property is in harmony with the Salem Zoning Ordinance. • eaoR 8268PC476 DECISION ON THE PETITION OF MARK LIPTAK FOR SPECIAL PERMIT FOR 9-11 OCEAN TERRACE, SALEM page two Therefore, the Zoning Board of Appeal voted unanimously, 5-0, to grant the relief requested, provided that: 1. A Certificate of Complicnce relative to the installation of automatic smoke detectors be obtained; 2. ,Premises remain owner occupied; 3. At no time shall more than a total of seven (7) persons use this property as a residence or the property shall revert to its former status as a two family; 4. At no time shall those persons occupying this property own, lease, or have available to them for general use more than a combined total of four (4) vehicles or the property shell revert to its former status as a two family. SPECIAL PERMIT GRANTED es B. Hacker, Chairman A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK APPEAL IR3.A THIS DECISm:. .. A•.r. SHALL BE PACE PURSUANT TO SECTION 17 OF THE WASS. CENERAL UT.S, CHAPrR$08, AND SHALL BE FRED WITHIN 20 DAPS AFTER THE DATE OF TLCs. C: TK!5 DECISION IN THE OFFICE Of THE CIT' CLERK. PJ?W0 T: LASS. CESERAL IA;rS. CHAPTER BDB, SECTION 11. THE VARIANCE OF. SPECIAL PrIVIIT I FAMED HEREIN, SHALL NOT IASL EFFECT UNTIL A COPY OF IRE OECISION. BEARiN) INE CER6 ._. f1:ATRX Of THE flit CEIBA, MIT 23 DAYS HAVE Et APSED AND NO APPEAL HAS L[EN FRED. "CR FNIT. IF SUtH All APPEAL HAS BEEN FILE, THAT It HAS BEEN DIS41ISSED OR DENIED 15 Rt"CED IN THE SOUTH ESSEX RECISIAT OF DEEDS AND INDEXED UNDER THE N"E Of THE DRAEE Of RECORD OR IS RECORDED AND NOTED ON THE OWNER'S CERTIFICATE Of TITLE- BOARD OF ITLE.BOARD-OF APPEAL IY 4 "A ril 10, 1986 ( her Y ' idoys. have expired Galiti 0 9l yf�t ) w is rcc.ivc<d, `� cart Bled in this anJ tol�,►.J X oflHc � A Tfcn Ccp :;'• ZJE��j�,- .,ref f1-CE') AIIk1if i '�1tRfNI Yo'.;:., ntu.,. a , a n '. .......:._..a...._..............._..._......._......_.._.........._._.. ................... l BK6747 PG6oa, 0tv of obttlem, RECEIVED ' �„ ..23varb of A"Zzl 'gp gp 16 P3:21 SEPTFJdSER lD.'19Ea CITY CLERK'S OFFICE I r SALEM MASS. l DECISION ON ITS PETITION OF MARINA B. SANDERS FOR A SPECIAL PERHII FOR 9-11 ! OCEAN TERRACE. A hearing on this Petition was held on September 10, 1980 atth the following Board Hembers preeanb Douglua Sapper, Chatersen; Monson. Pieanonne, L.ttecque, Feeherry and Asse.ints Neuhar Ha:eineau. Notice of the hearing wan sent toabutters and others and a notice of the hearing vas published In the sale.Sunni.,News-on August 27, and September 3, 1980, In....same.with l f Haneacbuaet[e.Ce¢aral Love, Chapter 40A. The Petitioner has requested a Special Permit m convert the ealedog two=£omtly dealling at 9-11 Ocean Terrace luto.a three-foully dwelling. The property is within an R-1 district; hwever, the property has for cony years,been need an a two-family dwelling (a non-cw£oraing one). The praviaion of the Salem Toning Ordineaee,vbfch is applicable to thin. request for a Special Pernit is Section V R 10, which providas as follows: l - Ratwithatandfn,anything to the contrary appearing in this Ordinente. the Board of Appeals,my, In accordance wleh'the procedure and conditions act £orrh'in Sectiw:plII P and IK Dr grant Special Pemaita for alters- . t£om and reconstruction of awconforming structures, and for changes, enlargetant, ext Ion os eapoealw of nwcmfnsala,iota, lead, .[meters., and uses, provided, Decease, that such clang., extewian,enlargement or expmeion shall not be substantially mare detel—ral than the enclosing _ noneo¢foamlag use to the aeighborbood, wr .ball this paragraph apply to billboard., signs, as other advertising device.. In more..seat terve, &I. Boned ie, whea xevtevlog Special Passaic ' requests, guided by the rule that a-Special Parodic.sweat may,be granted -1 upm mi a £lading by the Board that the great of the Special Pert will Pressure the public health, safety,cwvenimce and welfare of the city's inhebitante. 1 The Board, after considering the eeldence at the hearing w�this matter, make. the fo11ov1vg:Hadlags of fact: 1. The the has,ands substantial lmpravme¢be in the property th. 4., over the IanC year'and has madaa e1g¢ificmr fonts®mc is rho /{ 2. t pei.t.y See Jery large dtmcmxn can be easilyconverte to a thgeacfanily dve131vg and nhiN to uneconomical 9. a tra-Eemtly dwelling. .... jej f, fI r A -1 :