LORING HILLS AVENUE & CAROL WAY - ZONING Form A Decision
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Ms. Josephine Fusco u;
City Clerk N r'
Salem City Hall
Salem, MA 01970
Dear Ms . Fusco:
At a regularly scheduled meeting of the Salem Planning Board
held on June 4, 1992 it was voted to endorse "Approval Under
Subdivision Control Law Not Required" on the following described
plan:
1. Applicant:
Vinnin Associates Realty Trust
7 Loring Hills Avenue
2. Location and Description: Loring Hills Avenue and Carol Way
Lot D-1: A2 acre parcel of land fronting on the southwesterly side of
Loring Hills Avenue. Lot D-2 A 2.9 Acre parcel of land fronting on the
northeasterly side of Carlo Way.
Deed of property records in Essex South District Registry.
Sincerely,
I,1�0��►3- �lu�-� �,04c�_
Walter B. Power , III
Chairman
EX\DH\BPFORMA .
COMMONWEALTH OF MASSACHUSErXS
C LAND, COURT
DEPARTMENT OF THE TRIAL COURT
Essex, as. Miscellaneous
Case No. 144392
NORMAN BOGOSIAN, NORMAN DAVIDSON,
MARK GOLDENBERG, CAESAR HOFFMAN,
CYNTHIA K£RBEL, HYMAN LONDON,
NANCY POPKIN and HERBERT ZIMMERMAN$
Plaintiffs
Vs.
VINNIN ASSOCIATES REALTY TRUST and
RICHARD A. BENCAL, PETER DORE,
RICHARD FESONIO, JAMES M. FLEMING,
ARTHUR LEBRECQUE 'and EDWARD LUZINSKI
as they are members of the CITY OF
SALEM BOARD OF APPEALS,
Defendants
D E
By complaint filed April 11, • 1990 and amended on June 28,
1990, pursuant to G.L. c. 40A0 S17, Plaintiffs seek the annulment
of a decision ("the Decision") of the Zoning Board of Appeals of
the City of Salem ("the Board") which granted a special permit to
Defendant, Vinnin Associates Realty Trust ("Vinnin Associates") for
the construction of a 123 bed nursing home ("the Nursing Home") at
7 Loring Hills Avenue (Sometimes referred to as 7 Carol Way) in
Salem ("Locus") .
phis case was tried on March 7 and 8, 1991, at which times the
proceedings were transcribed by a court-appointed reporter. Twelve
witness testified and twenty-two exhibits were introduced into
evidence. All of the exhibits are incorporated herein by reference
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for the purpose of any appeal.
After considering the evidence, testimony and pertinent
documents, I make the following findings:
1. By deed dated October 20, 1983, Vinnin Associates took
title to Locus (Exhibit No. 15) . James Zieff, sometimes also known
as L. James Zieff as Trustee of Vinnin Associates,. is the present
title holder to Locus. Locus is a parcel of land .in Salem of
approximately 2 . 0 -acres and is shown as proposed Lot D1 on a
subdivision plan entitled "The Village at Vinnin Square, Carol Way"
and dated November 81 1985 ("the Plan") (Exhibit No. 22) (Locus is
more clearly shown on Exhibit No. 2) . Presently Lot D1 is part of
Lot D as shown on the Plan.
Locus may be accessed via Loring Hills Avenue and Carol Way,
both of which are private ways (See Exhibit Nos 8 and 22) . A
utility easement was paved as a connecting private driveway link
between Carol Way and Loring Hills Avenue ("the Link") and would
allow immediate access to the front of the Nursing Home (See
Exhibit No. 2) . Vinnin.Associates, both as abutting landowner and
pursuant to reservations in the master deeds for the Village at
Vinnin Square Condominium ("Village T") and for the Village at
Vtnnin Square Condominium II ("Village II") , has the right to use
Carol way, Loring Hills Avenue and the Link (See Exhibit No. 17,
Section 7E and Exhibit No. 191 Section 7E) .
2. Locus in an R-3 zone under the Salem Zoning ordinance ("the
Ordinance") (Exhibit No. 5) . Section V(B) (4) (a) of the Ordinance
requires a special permit for the construction of the Nursing Home
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in such district. Locus complies with all density regulations and
parking requirements of the ordinance.
] . on March 1, 1990, Vinnin Associates filed an application .
for a special permit to allow construction of the Nursing Home at
Locus (Exhibit No. 7) .
4 . Section IX(D) of the Ordinance provides that the Board
shall deny special permits when not in harmcny with the purpose
and intent of the Ordinance. Section I (1) of the Ordinance
provides:
For the purpose of promoting the health, safety, convenience,
morals, or welfare of the inhabitants of Salem, the Zoning
Regulations and restrictions of this ordinance, . . . are
designed among other purposes to lessen congestion in the
streets; to conserve health; to secure safety from fire, panic
and other dangers; to provide adequate light and air; to
prevent over-crowding of land; to avoid undue concentration
of population; to facilitate the adequate provision of
transportation, water, sewerage, schools, parks, and other
public requirements; to conserve the value of land and
buildings; to encourage the most appropriate use of land
throughout the city; and to preserve and increase its
amenities, to preserve and protect the water supply, open
space and conservation of natural resources, to prevent the
pollution of the environment, and community blight, to ensure
housing for all income levels and compliance with the Master
Plan of the City of Salem.
5. On April 5, 1990, the Board issued a decision granting a
special permit subject to a list of conditions (Exhibit No. 6) .
The Board found as follows:
1. The proposed use will promote the public good by meeting
the need for nursing.
2 . The proposed nursing home is in harmony with the intent of
the Zoning Ordinance.
3 . The ublic health,
safety,pconvenience roposed sand welfare ing home lofpthe ote }City's inhabitants.
6. The Massachusetts Department of Public Health has
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established four levels of nursing home care, dependant on
Cpersonnel requirements, staffing patterns and Medicare
participation. Level 1 and 2 care have the patients requiring the
most care. In Salem there is a 47 bed level 3 nursing home and two
level 4 nursing homes with 100 beds combined. There are no level
1 or 2 nursing homes in Salem. The Nursing Home is to be a multi-
level nursing home with 82 level 1 and level 2 beds and 41 level
3 beds. Many of .the nursing homes in the area of Locus are filled
to ninety-seven or ninety eight percent capacity. A Determination
of Need was approved by the Public Health Council in September of
1988 for the Nursing Home. Presently hospital patients are
frequently placed on Cape Ann or in Amesbury due to the lack of
appropriate facilities. It may take 30 to 40 phone calls to place
a patient and then, if successful, the wait for a vacancy may be
from three to nine months.
7. Locus, while in a residential district, borders on a
commercial district. Directly in front of the Nursing Home site
is a strip type shopping center, including a Papa Gino's
restaurant, a bank, an office building, a clothing store, and a
kindergarten. Also, in the area is a funeral home, restaurants and
the Vinnin Square shopping center. While Vinnin Square is clearly
in the business district, it is difficult to determine from the
testijuony and other evidence whether the other businesses are
located in the residential or business district. There are also
a five condominiums in the area including, Village I with 65
residential units, Village II with 100 residential units, Weatherly
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Drive Condominium with 86 residential units, Loring Hills
CCondominium with 38 residential units, and Loring Towers which has
250 residential units.
8. The present infrastructure, as to utilities and access
roads, is more than adequate to support the needs of the Nursing
Home.
9. The only traffic study of the area demonstrated that the
construction of the Nursing Home would have no significant impact
on traffic operations and that all intersections would continue to
operate safely and below capacity during peak traffic house
(Exhibit No. 14) .
10. At the .request of the Planning Board, Vinnin Associates
create a plan which moved parking to the front of the building on
the plan. There were also additional landscaping and screening
changes due to the site plan process. In the interest of judicial
and other economies, this order and judgment will apply to the plan
before .the Board as well as to Exhibit No. 12, which is the Plan
later submitted to the Planning Board and which is also in
conformity with dimensional and parking requirements of the
Ordinance.
In special permit appeals brought pursuant to G.L. c.40A, S17r
the reviewing court hears the matter de novo, makes its own
findipgs of fact and, on the facts so found, affirms the decision
of the permit granting authority unless it is determined to be
based on some legally untenable ground or is unreasonable,
whimsical, capricious or arbitrary. Macgibbon v. Board of Appeals
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of Duxbury, 356 Mass. 6351 639 (1970) ; S. Volpe & Co. , Inc. v.
CMgarsa of Appeals of Wareham, 4 Mass. App. Ct. 357, 359 (1976) ;
Subaru of New England. Inc. v. Board of Appeals of Canton, 8 Mass.
App. Ct. 483 , 486 (1979) . Insofar as the court's review is limited
to the legal validity of the permit granting authority's action in
granting or denying the special permit, Kiss v. Board of Appeals
of Longmeadow, 371 Mass. 147, 154 (1976) ; WQlfman v. Board of
Appeals of Brookline, 15 Mass. App. Ct. 112, 119 (1983) , it may not
substitute its judgment for that of the permit granting authority.
rzulK Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275,
277-278 (1969) .
In the present case, I find that Vinnin has shown the need for
a multi-level nursing home in Salem and has effectively
demonstrated that the Nursing Home would be in harmony with the
purpose and intent of the Ordinance. I find that the Board's
Decision in issuing the permit was within the authority of the
Board and accordingly, this matter is dismissed.
Judgment accordingly,
Robeet V. Cauc on
Justice
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COMMONWEALTH OF MASSACHUSETTS
r LAND COURT
l � DEPARTMENT OP TRB TRIAL COURT
Miscellaneous
EGSOX, Case No. 144392
NORMAN BOGOSIAN, NORMAN DAVIDSON,
MARK GOLDENBERG, CAESAR HOFFMAN,
CYNTHIA KERBEL, HYMAN LONDON,
NANCY POPKIN and HERBERT ZIMMERMAN,
Plaintiffs
V5.
VINNIN ASSOCIATES REALTY TRUST and
RICHARD A. BENGAL, PETER DORE,
RICHARD FEBONIO, JAMR9 M. PLra&INn,
ARTHUR LEBRECQUV and EDWARD LUZINSKI
as they are members of the CITY of
SALEM BOARD OF APPEALS,
Defendants
This cause came to be heard on March 7 and 81 1991, and was
argued by counsel, and thereupon, upon consideration thereof, it
is
ADJUDGED AND ORDERED that „thdecision) of the
April Board of
Appeals of the City or Salem ( Vinnin Associates Realty
granting a special permit to Defendant,
Trust for the construction of a 123 bed nursing home at 7 Loring
Hills Avenue in Salem was within the Board' s authority and
accordingly this matter is dismissed.
�. By the Court (Cauchon, J. )
Attest:
/ Charles W. Trombly, Jr.
Recorder
Dated: August 28, 1991
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NOTE LOT D- I SUBJECT TOA SPECIAL PERMIT GRANTED
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BY THE CITY OF SALEM Z. B. A . DATED : APRIL 10 , 1990
AND A FF 'I RMED BY THE MASS. LAND COURT MISC.
CASE NO. 144392 DATED ! AUG. 28, 1991 r e
Z. B. A. DECISION- RECORED E . S. R . D. BOOK 10719 PAGE 314
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NOTE: THIS PLAN P SUBDIVISION
.✓ 1 OF PARCEL D SHOWN ON
A PLAN ENTITLED "DEFINITIVE
PLAN, LOT A B,C D BY
r SALEM MASS. AS� SOC.
j l tom' APPROVED BY THE PLANNING
�w CITY OF SALEM BOARD SEPT. 30, 1986
PLAN OF LAND
PLANNING BOARDtn WC)
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nw APPROVAL UNDER THE 4
R' SALEM M ASSACHUSETTS
SUBDIVISION CONTROL Y
LAW IS NOT REQUIRED DATE OWNER
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°S,° 2° 40ao VI NNI N ASSOCIATES REALTY TRUST
SCALE I"= 40 '
DATETEB. 23, 1990
SURVEY UP DATEMAY 8, 1992
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