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DECISION ON THE PETITION OF LOIS DELP REQUESTING A VARIANCE\SPECIAL
PERMIT FOR THE PROPERTY LOCATED AT 58 SALEM STREET (R-3)
A hearing on this petition was held April 16, 1997 and continued
several times until September 17, 1997 with the following Board
Members present: Gary Barrett; Chairman, Nina Cohen, Albert Hill,
Joseph Ywuc and Richard Dionne. Notice of the hearing was sent to
abutters and others and notices of the hearing were properly
published in the Salem Evening News in accordance with Massachusetts
General Laws Chapter 40A.
Petitioner is requesting a Special Permit\Variance to convert a legal
two (2) family dwelling to a three (3) family for the property
located at 58 Salem Street. A motion was made for the requested
Variance and was opposed, as the petitioner did not need the
Variance.
The provision of the Salem Zoning Ordinance which is applicable to
this request for a Special Permit is Section 5-3(j ) , which provides
as follows:
Notwithstanding anything to the contrary appearing in this Ordinance,
the Board of Appeal may, in accordance with the procedure and
conditions set forth in Sections 8-6 and 9-4, grant Special Permits
for alterations and reconstruction of nonconforming structures, and
for changes, enlargement, 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, guided by the rule that a Special Permit request may be
granted upon a finding by the Board that the grant of the Special
Permit will promote the public health, safety, convenience and
welfare of the City's inhabitants.
The Board of Appeal , after careful consideration of the evidence
presented at the hearing and after viewing the plans, makes the
following findings of fact:
1. Testimony at the petitioner's initial hearing supported the
assertion that the property at 58 Salem Street has been used as
a (3) three-family dwelling for some years, and that building
permits had been issued in the past to allow improvements to
units on the second and third floors.
2. The Board received an opinion from the City Solicitor dated
September 16, 1997, stating that the building's use as a three
family dwelling for more than six years after the issuance of a
building permit prevents an action to compel abandonment of the
use.
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DECISION OF THE PETITION OF LOIS DELP REQUESTING A SPECIAL
PERMIT\VARIANCE FOR THE PROPERTY LOCATED AT 58 SALEM STREET. (R-3)
page two
On the basis of the above findings of fact, and on the evidence
presented, the Board of Appeal concludes as follows; 31-111
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I. The Special Permit requested can be granted without substantial '
detriment to the public good or without nullifying and substantially
derogating from the intent of the district or the purpose of the
ordinance.
2 . The granting of the Special Permit requested will promote the
public health, safety, convenience and welfare of the City's
inhabitants and may be granted in harmony with the neighborhood.
Therefore, the Zoning Board of Appeal voted unanimously, 4-0 to
grant the Special Permit requested, subject to the following
conditions:
1. Petitioner shall comply with all city and state statutes,
ordinances, codes and regulations.
2. All requirements of the Salem Fire Department relative to smoke
and fire safety shall be strictly adhered to.
3. A Certificate of Occupancy shall be obtained.
SPECIAL PERMIT GRANTED
September 17, 1997 ( r r
r tet, r
Nina Cohen, Member
Board of Appeal
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND
THE CITY CLERK
Appeal from this decision, if any, shall be made pursuant to Section
17 of 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 certification of the City Clerk that 20 days
have elapsed and no appeal has been filed, or that, if such appeal
has been filed, that it has been dismissed or denied is recorded in
the South Essex Registry or Deeds and indexed under the name of the
owner of record or is recorded and noted on the owner's Certificate
of Title
Board of Appeal
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CITY OF SALEM - MASSACHUSETTS
ROBERT A.LEDOUX Legal Department JOHN D.KEENAN
City Solicitor 93 Washington Street Assistant City Solicitor
314 Essex Street Salem, Massachusetts 01970 15 Church street
508-741.2111 508-7448500
September 16, 1997
Mr. Leo E. Tremblay
Building Inspector
One Salem Green
Salem, Massachusetts 01970
RE: l58 Salem Street
Salem,Massachusetts
Dear Mr. Tremblay:
You have requested my opinion as to the status of the property at 58 Salem
Street as a three family dwelling. My opinion follows.
Massachusetts General Laws, Chap. 48, Sec. 7 deals with the issue of possible
violations that may arise because of improperly permitted buildings or buildings that
have been in existence without permits.
If a building permit is issued on property and the building continues to exist for
a period of 6 years or over even though the permit had been issued in error by reason
of a violation of the provisions of this chapter, the property could not be removed nor
could there by any action of criminal or civil to compel abandonment or modification
of the use.
If a building has been in existence for 10 years from the date of the alleged
violation without permit, neither criminal action nor civil action can be filed against it
to remove, alter or relocate the structure. Please note that this does not say "use".
You furnished to me a number of copies of building permits issued on the
property in question. The first one that you forwarded to me was a photocopy of a
plumbing permit issued on March 31, 1983. This indicates that there were three (3)
units in the building. There is also a gas fitting permit issued on a date which I cannot
read but it was for the third apartment in question. There is a building permit issued
by your office dated July 6, 1983 and to construct a stairway from the second to the
third floor for a second means of egress. There appears to be a water certificate that
was also issued dated May 16, 1983.
Mr. Leo E. Tremblay
Page Two
September 16, 1997
It would appear that although no building permit issued for the construction of a
third family apartment on the third floor, the existence of the building permits as above
enumerated certainly can be interpreted as to mean that the third unit in this building is
valid. I would interpret all of the permits to indicate that the three family status came
under the building permit and,therefore, it would prevent anyone from filing any action
to force abandonment, limitation or modification of use. All these things being taken
into consideration it is my opinion that the building in question is a legal three-family
dwelling. Any questions please do not hesitate to call.
Very truly yours,
ROBERT A. LEDOUX
cc: Deborah Burkinshaw
City Clerk
RAL/leh
File #9470.63