5 BALCOMB STREET - GOMES, FERNADO - ZBA Balcomb St. R_2
fV1 { Fernando Gomes
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DECISION ON THE PETITION OF FERNANDO COMES FOR VARIANCES
AT 5 BALCOMB ST. (R-2)
A hearing on this petition was held September 11 , 1991 with the following Board
Members present: Richard Bencal, Chairman; Joseph Correnti, Richard Febonio,
Edward Luzinski, Mary Jane Stirgwolt. 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 Variance from use and parking to allow a two family
dwelling to be converted to a three family dwelling. The property is owned by
the petitioner and is located in an R-2 district.
Before hearing the merits of this petition, the Board of Appeal has to consider
whether or not there is a substantial and material change from a previous
petition to allow a two family to be converted to a three family which was denied
by this Board on March 20, 1991 . The Board of Appeal, after hearing the evidence
presented, and after recieving Consent from the Salem Planning Board, voted 4-1
(Mr. Bencal opposed) that there was a substantial change, said change being, the
change in the floor plans and the addition of the request for parking. Also,
petition was not present at the last hearing as he was unaware of having to be
present. The Board of Appeal will hear the petition.
The Variances which have been requested may be granted upon a finding by the
Board that:
1 . Special conditions and circumstances exist which especially affect the land,
building or structure involved and which are not generally affecting other
lands, building and structures in the same district.
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
district or 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 fact:
1 . Mr. Gomes represented himself.
2. There was no opposition or support for the petition.
3. A Special Permit was granted to the previous owners in 1986 to allow three
units,. one of the conditions being that five (5) legal parking spaces be
maintained on the premises. The project was never completed.
4. A subsequent amendment to the Zoning Ordinance now requires a Variance to
convert a two family to a three family in an R-2 district.
DECISION ON THE PETITION OF FERNANDO GOMES FOR A VARIANCE
AT 5 BALCOMB STREET, SALEM
page two
5. Petitioner purchased the property in January of 1991 as a two family dwelling.
6. Petitioner failed to meet his burden of proof relative to legal hardship.
On the basis of the above findings of fact, and on the evidence presented, the
Board of Appeal concludes as follows:
1 . Special conditions do not exist which especially affect the subject property
and not the district in general.
2. Literal enforcement of the provisions of the Ordinance would not involve
substantial hardship to the petitioner.
3. The relief requested cannot 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.
Therefore, the Zoning Board of Appeal voted two (2) in favor (Mr. Febonio & Mr.
Luzinski) , three (3) opposed (Mr. Bencal, Mr. Correnti and Ms. Stirgwolt) . The
motion to grant the Variance from use and parking having failed to garner the
require four (4) affirmative votes to pass,fails and the request is denied.
VARIANCES DENIED
September 11 , 1991
cha�nio, 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 0!
ter 808. and shall be filed within CO days
the Mass. General Laws. Chap the Variance
Ch:n'er 808, Section 11• Variance
e
after the date of filing of this decision in the office of the City
•�� p�.irsuant to Mass. General Laws• ,i net take effect until a copy
Of or .•,,acral permit granted herein sht.
_ filed, or that, if such appeal has bean
decision, "e,ring the certification of the City Gera that 20 days have
u - elapsed and no appeal has been
filed,that it has been dismisseq or denied is recorded in the South Essert
: Registry of Deeds and indexed undeerthe ernt t caterof TWO.ner of record at
to recorded and noted�n the own
BOARD OF APPEIt11
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CITY OF SALEM, MASSACHUSETTS
PLANNING DEPARTMENT
WILLIAM E. LUSTER } ONE SALEM GREEN
City Planner 01970
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(5 FAX(508)744-5918
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744-5918
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July 30, 1991
Mr. Richard Bencal
Chairman
Board of Appeal
One Salem Green
Salem, MA 01970
Re: 5 Balcomb Street
Dear Mr. Bencal :
On July 18, 1991, in accordance-with Massachusetts General Law
Chapter 40A, Section 16, the Salem Planning Board met to discuss
the application of Fernando Gomes for a "Determination of Specific
and Material Change" to his plans for 5 Balcomb Street which were
denied by the Board of Appeal on March 20, 1991 .
Mr. Gomes ' amended plan includes interior changes to the
proposed third dwelling unit.
The Planning Board voted unanimously that "Specific and
Material Changes" have been made to the petition which was denied
by the Board of Appeal .
However, in sending this petition back to the Board of Appeal,
the Planning Board would like to state unequivocally that they are
in no way endorsing the granting of this Variance, but believes
that Mr. Gomes deserves a second chance to present his case to the
Board of appeal since he was unaware that he was to attend the
meeting of March 20, 1991 .
Thank you.
cer y,
Wi 'am E. Luster
City Planner
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CITY OF SALEM - MASSACHUSETTS
KEVIN T.DALY Legal Department LEONARD F FEMINO
City Solicitor 93 Washington Street Assistant City Solicitor
508-745-0500 Salem,Massachusetts 01970 508-921.1990
May 21, 1991
Walter B. Power, III, Chairman
Salem Planning Board
One Salem Green
Salem, MA 01970 ' 1 1991
in re: 5 Balcomb Street
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Dear Walter:
Thank you for your letter dated April 22, 1991,
regarding the application of Fernando Gomes for a special
permit.
I have looked at Mass. General Laws Chapter 40A,
Section 16 and cases regarding the issue of "specific and
material change" and I must. conclude that Mr. Gomes will be
unable to attend the Board of Appeal within the next two (2)
years on an application which is substantially unchanged
from the application denied by the Salem Board of Appeal on
March 20, 1991. The Salem Board of Appeal was required to
make a decision on Mr. Gomes' application for if it failed
to do so, the application would have been deemed allowed by
statute since all applications must be acted upon within a
specified period of time.
If Mr. Gomes wishes to petition the Salem Board of
Appeal in an attempt to request that they remove its denial
and consider rehearing the case, he may wish to consult an
attorney to assist him in this regard.
This letter should not be considered as a written
opinion from the legal department at this time. If the
Salem Board of Appeal or the Planning Board wishes to
receive an opinion regarding language contained in Chapter
40A, Section 16, please feel free to submit same to Mr.
Kevin Daly.
If you have any questions or comments, please feel
free to contact me.
Vee truly yours,
I Tor
Leonard F. Femino
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cc: Kevin Daly, Esq.
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