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34-38 1/2 BRIDGE STREET - SPINALE, JOHN - ZBA (2) 34-381 Bridge St. B-2 I John Spinale, Ir. Ctu of $a1em, Aussadjusetts Poara of Appeal I JULY 6, 1994 YOU ARE HEREBY NOTIFIED THAT AS OF JUNE 29, 1994 THE DECISION'OF ! r THE BOARD OF APPEAL HAS BEEN FILED IN THE OFFICE OF THE CITY CLERK TO GRANT THE PETITION OF JOHN SPINALE, TR. FOR A VARIANCE FROM USE TO ALLOW THE NEW ADDITION TO BE USED AS AN AUTOMOTIVE BODY REPAIR IN THIS B-2 DISTRICT. ; BOARD OF APPEAL BRENDA M. SUMRALL V CLERK OF THE BOARD ' 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/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 of 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 of 1�ttlrm, �fttsbttrttusettz Q Nourb of Au }renl CITY OF S;; FM, MASS Ctf,r,.ti' OFFICF DECISION ON THE PETITION OF JOHN SPINALE, TRUSTEE FOR VARIANCE AT 34-381 BRIDGE STREET (B-2) A hearing on this petition was held June 15, 1994 with the following Board Members present: Stephen Touchette, Chairman; Gary Barrett, Albert Hill, Stephen O'Grady and Nina Cohen. 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, owner of the property, is requesting Variance from use to allow the new addition to be used for automotive body repair. The property is located in the B-2 district. 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 structure 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 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. The Petitioner submitted six (6) letters in support of this request. One of the letters was from Kevin Harvey, Ward Two Councillor. 2. The building is to be used as a one bay automotive repair shop. 3. There was no opposition to the request. DECISION ON THE PETITION OF JOHN SPINALE, TRUSTEE FOR VARIANCES AT 34-3812 BRIDGE STREET, SALEM page two On the basis of the above findings of fact, and on the evidAU re&$Zil �9q at the hearing, the Board of Appeal concludes as follows: CJTYOF S ,LEM. MASS CLERK; OF 1. Special conditions exist which especially affect the subject proper F but not the district in general. 2. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship to the petitioner. 3. Desirable relief can 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. Therefore, the Zoning Board of Appeal voted 4-1 in favor of granting the variance requested (Mr. Hill voted in opposition) , subject to the following conditions: 1. Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. 2. Petitioner shall comply with all requirements of the Salem Fire Department relative to smoke and fire safety. 3. A Certificate of Inspection is to be obtained. Variance Granted June 15, 1994 Stephen C. Touchette, Chairman 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 the Massachusetts General Laws 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 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 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 of 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 r� n f�itn ofttlem, � ttsstttltusetts 3a Bourb of Av}rezd CITY OF- S;I EH. MASS C F``.5'S OFFICF DECISION ON THE PETITION OF JOHN SPINALE, TRUSTEE FOR VARIANCE AT 34-381 BRIDGE STREET (B-2) A hearing on this petition was held June 15, 1994 with the following Board Members present: Stephen Touchette, Chairman; Gary Barrett, Albert Hill, Stephen O'Grady and Nina Cohen. 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, owner of the property, is requesting Variance from use to allow the new addition to be used for automotive body repair. The property is located in the B-2 district. 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 structure 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 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. The Petitioner submitted six (6) Letters in support of this request. One of the letters was from Kevin Harvey, Ward Two Councillor. 2. The building is to be used as a one bay automotive repair shop. 3. There was no opposition to the request. °t DECISION ON THE PETITION OF ?OHN SPINALE. TRUSTEE FOR VARIANCES AT 34-381, BRIDGE STREET, SALEM page two On the basis of the above findings of fact, and on the evidA[9%re?e$2XA 9� at the hearing, the Board of Appeal concludes as follows: CITY OF S4LEM, MASS CLER.K1; CF- E 1. Special conditions exist which especially affect the subject properyt but not the district in general. 2. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship to the petitioner. 3 . Desirable relief can be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the district or the purpose of the Ordinance. Therefore, the Zoning Board of Appeal voted 4-1 in favor of granting the variance requested (Mr. Hill voted in opposition) , subject to the following conditions: 1. Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. 2. Petitioner shall comply with all requirements of the Salem Fire Department relative to smoke and fire safety. 3. A Certificate of Inspection is to be obtained. Variance Granted June 15, 1994 Stephen C. Touchette, Chairman Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certification of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of Title. Board of Appeal of �$ttlem, fflassacltugrits 4 $3oura of C�upetil CITY u ""' `H, MASS C�F',5'S OFFICE DECISION ON THE PETITION OF JOHN SPINALE, TRUSTEE FOR VARIANCE AT 34-381 BRIDGE STREET (B-2) A hearing on this petition was held June 15, 1994 with the following Board Members present: Stephen Touchette, Chairman; Gary Barrett, Albert Hill, Stephen O'Grady and Nina Cohen. 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, owner of the property, is requesting Variance from use to allow the new addition to be used for automotive body repair. The property is located in the 3-2 district. 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 structure 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 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. The Petitioner submitted six (6) letters in support of this request. One of the letters was from Kevin Harvey, Ward Two Councillor. 2. The building is to be used as a one bay automotive repair shop. 3. There was no opposition to the request. DECISION GN THE PETITION OF JOHN SPINALE, TRUSTEE FOR VARIANCES AT 34-3812 BRIDGE STREET, SALEM page two On the basis of the above findings of fact, and on the evid4ii ,2e&ZAi -9q at the hearing, the Board of Appeal concludes as follows: CfTY OF S<LEM. MASS C LcnK,c 0F 1. Special conditions exist which especially affect the subject prope'rW E but not the district in general. 2. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship to the petitioner. 3. Desirable relief can 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. Therefore, the Zoning Board of Appeal voted 4-1 in favor of granting the variance requested (Mr. Hill voted in opposition) , subject to the following conditions: 1. Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. 2. Petitioner shall comply with all requirements of the Salem Fire Department relative to smoke and fire safety. 3. A Certificate of Inspection is to be obtained. Variance Granted l June 15, 1994 Stephen C. Touchette, Chairman 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 the Massachusetts General Laws 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 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 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 of 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 DATE OF HEARING PETITIONER q Mif X O LOCATION31y / "&� �_ n. open_ It MOTION: TO GRANT n SECOND AMENDMENT SECOND TO DENY L SECOND TO RE-HEAR SECOND WITHDRAW SECOND CONTINUE SECOND ROLL CALL PRESENT GRANT DENY AMEND WITHDRAW RE-HEAR CONTINUE GARY M. BARRETT ALBERT C. 4Tt 1 1� STEPHEN O'GRADY STEPHEN TOUCHETTE ASSOCIATE MEMBERS NINA V. COHEN ��I1F CONDITIONS: n n , i _. . . . . . . . . . . . . . . . . . . . . . . . . . M r 9 �IIIIIII IIZ FrzLi 7 �E E-OARD OF APPEALS: - _,aers::nea represent _nat " - :re :'e owners certain parcel of lano locate knee. . . . . . . . . . . . . . . . . . .:.reet: mna Oistrtct.Cj> . .7o _ :o --*rce : -fade= = _ct:cnis ; . . . . . . . . . . . . . . . 'ssacnusett_ : :ate =uiidino _ice. ins =_scr,.oino the worK cr000sea. -.ave Lean slomittac the inspector of Buildings to .cccrcance ';nth Section IX A. i if t! e =_ning Ordinance. n a ' N U 03 G� 7he�,6ppIicaiion for Permit was denied by the Inspector of Buildings for the following reasons: The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem Zoning Ordinance and/or the Buildina Code and order the Inspector of Buildings to approve the application fee permit to build as filed, as the enforcement of said Zoning By-Laws and Building Code would involve practical difficulty or unnecessary harashio to the Undersigned and relief may be granted without substantially dero- gating from the intent and purpose of the Zoning Ordinance and Building Code for the following reasons: Pe•�'•�•o�evz �ee��es E s -F-�.�.t �-�e �onr�o cJnn,.a� A VPvi. Av-ice -�� nI.L.U..� •tie �"Y�e:.i�se; �+� b2 U (� rLF i+'�•�' s o2 Av �ewLo+'••, Z. Y3o)p � (a z) t e.,v, iwwce �,1, snl l y 2 i,«..� li +ni•J�� . n.+eSS Zbw�, A--+V�nwo� 1d gut Sv %J S 1A ' l�enoe�nlG T bw, toe :.�{o cry _+_j,e Zd.N. � , 6ve » . J/i.Nce CetaZ�'Ai f2es\_.Ci, tti 'W%00%zo 6L, tl 2 SAlPv1 ��AruN, Nr� f3UAvtI� � �"" � C��2vtp,..�� use or -ELe pvtP>*;• � S Owner. ."3`1- 3� 'IL 13x:Ol 5+ �1LJSq. .. . . . Address. 3Lt .38 i/z '°'': ?.SRS . .. . ... . . .. . . . . . . . . . . . . . . . . . . . .E5 -lleo7 :)etitioner. . .)P�� .SP. aSe. S1 . . . . . . . . . . s�z?.�.a.y. . . . . . . -eieonone. . . . ?. 5. lL . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . v. . . . .Agoo :y ' . .c` 'Pky. . cSY:. . . . . . . . . . . nree c_oies of the application must to filea with the Secretary of the Board of 'ooeais ,nth a check, 'or aavertisina in the amount :f. . . . . . . . . . . . . . . . . . . . . ... . . our ::eeKS prior to the meeting of tie Boaro of Aooeais . :hecK cavaole to The ienino ,yews. i COMMONWEALTH OF MASSACHUSETTS ESSEX, SS . SUPERIOR COURT DEPARTMENT SALEM DIVISION _ C.A. NO. - 34-38 1/2 BRIDGE STREET TRUST JOHN SPINALE ) TRUSTEE ) VS . ) " FRANCIS X. GREALISH, ) GEORGE AHMED ) STEPHEN TOUCHETTE, ) STEPHEN O'GRADY, ) and ALBERT HILL, AS THEY ) CONSTITUTE THE SALEM ) BOARD OF APPEALS ) NOTICE OF APPEAL Notice is hereby given pursuant to M.G.L. Chapter 40A Section 17, that an Appeal has been filed with the Superior Court- --- Department, Essex Division, on February 28, 1994 appealing a Decision of the City of Salem Board of Appeal dated January 19-, ---- 1994 and filed with the Salem City Clerk on February 8, 1994 . Said Decision denied the application of 34-38 1/2 Bridge Street Realty Trust, John Spinale, Trustee for a Special Permit allowing the premises to be utilized for auto body repair. 34-38 1/2 Bridge Street Realty Trust, John Spinale, Trustee By its attorney Stephen P. Lovely, Esquire BBO#560533 14 Story Street Salem, Massachusetts 01970 (508) 745-8274 Dated: February 28 , 1994 I COMMONWEALTH OF MASSACHUSETTS ESSEX, SS . SUPERIOR COURT DEPARTMENT SALEM DIVISION _ C.A. NO. q tl - y G 2- 3 -�,,.- 34-38 1/2 BRIDGE STREET ) - __=-- TRUST JOHN SPINALE ) TRUSTEE --- ) VS . ) FRANCIS X. GREALISH, ) GEORGE AHMED STEPHEN TOUCHETTE, - STEPHEN O'GRADY, ) and ALBERT HILL, AS THEY ) CONSTITUTE THE SALEM ) BOARD OF APPEALS COMPLAINT - Now comes the Plaintiff in the above captioned matter stating as follows : 1 . Judicial Review is hereby requested under Massachusetts General Laws, Chapter 40A, Section 17 as amended, of the decision of the City of Salem Board of Appeal dated January 19, 1994 , filed with the City Clerk of the City of Salem on February 8, 1994 , so-far as it relates to the premises at 34-38 1/2 Bridge Street, Salem, Massachusetts . 2 . The Plaintiff, 34-38 1/2 Bridge Street Reai Estate Trust , John Spinale, Trustee, is a Realty Trust with a principal place of business at 34-38 1/2 Bridge Street, Salem, Essex County, Massachusetts . z��a i 3 . The Plaintiff at all times hereto is the owner in fee of a certain parcel of land located in the City of Salem, ----.—�,T*- Massachusetts, known and numbered as 34-38 1/2 Bridge Street, County of Essex, Commonwealth of Massachusetts . 4 . The Plaintiff, John Spinale, (hereinafter "Plaintiff"-) X, is a Trustee of 34-38 1/2 Bridge Street Realty Trust . S . The Defendant, Francis X. Grealish, of 8A Cleveland tea , Road, Salem, Massachusetts was chairman of the Salem Board of Appeals . 6 . The Defendant, George Ahmed of 102 Columbus Avenue, Salem, Massachusetts is a member of the Salem Board of Appeals. 7 . The Defendant, Stephen Touchette of 452 Loring Avenue, Salem, Massachusetts is a member of the Salem Board of Appeals. 8 . The Defendant, Stephen O'Grady of 125 Webb Street, Salem, Massachusetts is a member of the Salem Board of Appeals .> -_ 9 . The Defendant, Albert Hill of 4 Larkin Lane, Salem, 's _' Massachusetts is a member of the Salem Board of Appeals . 10 . That the Court has jurisdiction of this matter pursuant to Massachusetts General Laws, Chapter 40A, Section 17 as it constitutes an appeal from the Decision of the City of Salem , Board of Appeal, a certified copy of said Decision is attached hereto as Exhibit "A" . 11 . On January 19, 1994, Plaintiff, through his attorney, Stephen P . Lovely, appeared before the Defendants, in their capacities as members of the Salem Board of Appeals, for the purpose of his application for a Special Permit, allowing a use of auto body repair on the premises of 34-38 1/2 Bridge Street, Salem, Massachusetts . 12 . Notice of the hearing was sent to abutters and others and notices were properly published in the Salem Evening News in xf• accordance with Massachusetts General Laws Chapter 40A. " 13 . A public hearing was held. Attorney Lovely, on behalf , . - of the Plaintiff, offered testimony in favor of the Special Permit for the Plaintiff, citing that under the City of Salem Zoning Ordinance, that the auto body use is allowable by Special Permit and the benefits to the neighborhood promoting the public - ._ : __ health, safety, convenience and welfare of the City' s inhabitants . 14 . Attorney Lovely stated that the Plaintiff had spoken with all his neighbors and that there was no opposition in fact -- throughout the planning process the neighbors had been supportive . Attorney Lovely also stated that Ward Councillor Kevin R. Harvey represented the neighborhood and was in favor of the Special Permit . Attorney Lovely also made the point that there was another auto body in the proximity directly across Bridge Street . 15 . There was no opposition to the request and the public hearing was closed. 16 . Defendant, Albert Hill, having been opposed to another aspect of the project as a member of the Planning Board (although he voted present upon the final action of the Planning Board) raised Planning Board issues that created confusion and were entirely outside the issue of the Special Permit that was before the Board of Appeals . i 17 . Plaintiff' s attorney attempted to object and be heardon the comments of Mr. Hill however the Chairman Mr. Grealish A -- refused to allow further comment citing the closure of the public' r�.. hearing. 18 . The Salem Board of Appeal voted to deny the application! of the Special Permit . _ - 19 . The Plaintiff is a party aggrieved by the Decision gf�,,,.", The Salem Board of Appeal . - *."'t 20 . Defendant Albert Hill should have recused himself:'fromI_I-='t voting on the petition and refrained from comments that ^` prejudiced the petition of the Plaintiff . 21 . The Defendants as members of the Salem Board of Appeal -- - - allowed improper testimony of Mr. Albert Hill to influence their- IJV. Z decision. 22 . Defendants were incorrect in their decision that "use" could only be granted by variance and not by the Special .- ,,,. Permit as applied for. ,y 23 . Defendants decision exceeded the authority of the Board in that it was arbitrary and capricious and had no basis in laws... r i - and was not based on any findings of facts based on proper : ,x _ evidence presented to the Board during the public hearing. 24 . The Defendant' s denial was defective on its face in that there was no rebuttal to the Plaintiff' s testimony that the Special Permit was in harmony with the general purpose and intent of the Zoning Ordinance By-Law and by its failure to find specific facts that would demonstrate that the proposed use for which the Special Permit was not in harmony with the general - _ _. r purpose and intent of the Zoning Ordinance . WHEREFORE, the Plaintiff' s pray: 1 . That the Court hear the evidence and determine the facts and upon the facts so determined, order, decree and adjudge the Defendant City of Salem Board of Appeals Vote and Decision of January 19 , 1994 is invalid, of no force or effect, and that said Decision be annulled; 2 . That the Court award Plaintiff its costs and attorney' s fees in this action; and 3 . For such other and further relief as this Court deems just . 34-38 1/2 Bridge Street Realty Trust, John Spinale, Trustee, By its attorney, Stephen P . Lovely, Esquire BBO#560533 14 Story Street Salem, Massachusetts 01970 (508) 745-8274 Dated: February 28 , 1994 Ctu of Salem, 'Mussadjusetts i � a e �Ruara of Env FETe d 3 to f�j y11 1J DECISION ON THE PETITION OF JOHN SPINALE, TRUSTEE FOR VARIANCES AND SPECIAL PERMIT AT 34-38 1/2 BRIDGE STREET (B-2) A hearing on this petition was held January 19, 1994 with the following Board Members present: Francis Grealish, Chairman; Stephen Touchette, George Ahmed, Albert Hill and Stephen O'Grady. 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, owner of the property, is requesting a Variance to allow addition to be constructed as previously granted in a decision of the Board of Appeal dated July 21, 1993. The City of Salem made changes to the plan voted on and granted July 21, 1993 and eliminated some of the parking. Petitioner is also requesting a Special Permit to allow the addition to be used for auto repair and body shop and for storage, the property is located in a B-2 district. 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 Section 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 Variances which have been requested may be granted upon a finding of the Board that: A. Special conditions and circumstances exist which especially affect the land, building or structure involved and which are not generally affecting other lands, buildings or structures in the same district. B. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioner. DECISION ON THE PETITION OF JOHN SPINALE, TR. FOR A SPECIAL PERMIT AND VARIANCE AT 34-38 1/2 BRIDGE STREET, SALEM page two C. Desirable relief may be granted without kos$ant3ayo f�tr4' ent to the public good and without nullifying or substantially derogatill from the intent of the district or the purpose of thdP Ofdinarcce. „ASS The Board of Appeal, after careful consideration of the evidence presented, and after viewing the plans, makes the following findings of fact: - - 1. There was no opposition to the request. 2. The Plans as submitted were changed at the request of the Planning Board, reducing the amount of parking spaces and adding landscaping. 3. The size of the addition has not changed. 4. The Board of Appeal felt the use could only be granted by a Variance not a Special Permit has requested. The prior use granted, namely retail and storage was allowed under Special Permit requests. On the basis of the above findings of fact, and on the evidence presented at the hearing, the Board of Appeal concludes as follows: I. Special conditions exist which especially affect the subject property but not the district in general. 2. Literal enforcement of the provisions of the Ordinance would involve substantial hardship on the petitioner. 3. The Variance requested can 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. 4. The Special Permit requested in not in harmony with the neighborhood or with the zoning district the property is located in and will not promote the public health, safety, convenience and welfare of the city's inhabitants. Therefore, the Zoning Board of Appeal voted 4-1 (mr. Hill opposed) to grant the Variance requested and accept the plans as revised and approved by the City of Salem Planning Board. All conditions of the previously granted petition shall remain in effect and are listed below with the exception of condition #2 6 #6 which have changed as a result of the revised plans. 1. Petitioner shall comply with all city and state statutes, codes ordinances and regulations. 2. All construction shall be done per the revised plans and dimensions submitted January 19, 1994. 3. All requirements of the Salem Fire Dept. relative to smoke and fire safety shall be strictly adhered to. I DECISION ON THE PETITION OF JOHN SPINALE, TR. FOR A VARIANCE AND SPECIAL PERMIT AT 34-38 1/2 BRIDGE STREET, SALEM page three FEB 3 10 PH "y 4. Petitioners shall obtain a building permit prior �dreonstruction. y i r 5. A Certificate of Occupancy is to be obtained. 6. Parking is to be provided as per the plans submitted 1/19/94. - 7. Exterior finishes of the proposed construction shall be in harmony with the existing structure. The Board of Appeal voted 3 - 2 against the motion to grant a Special Permit to allow the addition to be used as an Auto body, repair and storage facility. (Members O'Grady, Ahmed & Grealish voted in favor of the motion, Members Hill and Touchette voted in opposition) The motion to grant having failed to garner the required four (4) affirmative votes fails to carry and the request for the Special Permit is denied. Variance Granted and Special Permit Denied January 19, 1994 J Francis X. Grealish, Chairman 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 of 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 1 � m w '14Po / ° I�i`fir /\�Jy Z � Pg R d lit '3' 9 � 't► y�9 362 eb paKIN� 11 ?Kgs ❑ oo r� s 3TA�FT *?ooRk'ry$e V r, ORN 't000 3os$ � r b ?d�„ a° PgRkr Prep VOO Zzs r+ ° v Ir 3 6 O ° ° erO STRFFT'bo � . �o n�wp a oo . O \~ \ M36-L 2i BOO N" 3 co b h 4 'J� 66 a Al RRt<< 3Q \ a AVE. w #� 3�r4 r `' ...to tilt Ry , -t 2 • T s, a o 00 x �$ g k � N Q 1 June 11, 1994 5 s II Salem Board of Appeals One Salem Green Salem, MA 01970 Dear Members: My name is Jean Palardy, I live at 25 Bridge Street. I wish to be recorded as in favor of the Board of Appeals granting a variance to John Spinale as Trustee of the 34-38 1/2 Bridge Street Trust. I live across the street from the premises. The proposed use of the property, one bay automotive body repair, is consistent with the current use of the premises and would be an improvement to the area. Mr. Spinale has a young family here in Salem and is a lifelong Salem resident and has operated his business at this location for many years . I feel that the Board should help a Salem business when it can. I ask that the Board grant the petition for a variance to allow automotive body repair. I believe that requested relief from zoning may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the district or the purposes of the Zoning Ordinance. Thank you. Sincerely; Jean Palardy �v June 11, 1994 Salem Board of Appeals One Salem Green Salem, MA 01970 To the Board: My name is Charles DiLuiso, I live at 27 Bridge Street. I wish to be recorded as in favor of the Board of Appeals granting a variance to John Spinale as Trustee of the 34-38 1/2 Bridge Street Trust. I live across the street from the premises . The proposed use would be in conformity with the area. I have known Mr. Spinale for a long time and I am sure his operation would be run right. The changes in the property are already for the better. I ask that the Board grant the petition for a variance to allow automotive body repair. I believe that requested relief from zoning may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the district or the purposes of the Zoning Ordinance. j Charles DiLuiso THE BILL&BOB'S THE MINOAN RESTAURANT GROUP REAL ESTATE GROUP *Minos Enterprises *Crete Realty Trust *N.B.C.Enterprises *Minoan Realty Trust *Bill&Bob's of Woburn,Inc. *Minoan Mill Hill Realty Trust *Bill&Bob's of Wilmington,Inc. *Danvers Atrium Trust *Bill&Bob's of Cape Cod, Inc. *N&C Realty *Bill&Bob's of Lynn,Inc. ENTERPRISES *NL Enterprises Realty Trust *Atrium Food Gallery,Inc. 9 Bridge Street *B.S. Realty Salem, MA 01970 (508)745-8887 Fax(508)741-2178 June 14, 1994 - 1 Zoning Board of Appeals One Salem Green Salem, MA 01970 Dear Board Members: I am in favor of the use variance sought by John Spinale in order to operate an auto body shop at 34-38 1/2 Bridge Street. As the owner of the property at 26 Bridge Street (adjacent to 34-38 1/2) and at 31 Bridge Street (directly across from 34-38 0 1/2 ) , the proposed use at 34-38 1/2 Bridge Street will increase business activity in the area. The improvements and landscaping being done as part of this project will enhance Bridge Street. Sincerely, �4! / LPi �I JJ Nondas Lagonakis r a June 11, 1994 Salem Board of Appeals One Salem Green Salem, MA 01970 Dear Members : t My name is Frank Ball, I live at 23 Bridge Street. I wish to 'be recorded as in favor of the Board of Appeals granting a variance to John Spinale as Trustee of the 34-38 1/2 Bridge Street Trust. I live across the street from the premises . The proposed use of the property, one bay automotive body repair, is consistent with the current use of the premises and would be an improvement to the area.. I have known Mr. Spinale for many years and his business has always been well run and responsive to the neighborhood. I ask that the Board grant the petition for a variance to allow automotive body repair. , I believe that requested relief from zoning may be granted without substantial detriment to the public good and without nullifying or substantially derogat-ing from the intent of the district or the purposes of the Zoning Ordinance. Thank you. r Sin erely; Ira' nk Ball ci,lPPes SB1P . MASSACHUSETTS 01970 DIAL 508 745-8022 40 BRIDGE STREET SALEM ( ) ■ NN June 8, 1994 Salem Board of Appeals One Salem Green Salem, MA 01970 Dear Members: Please allow me, Jack Sullivan, to be recorded as in favor of the Board of Appeals granting a variance to John Spinale as Trustee of the 34-38 1/2 Bridge Street Trust at that location. I am a direct abutter, to the rear, as the owner of the Clipper Ship Inn. The proposed use of the property, one bay automotive body repair, is in keeping with the current use of the premises. The site in question is located in a B-2 zone. The site, as a result of a vote of the Salem Planning Board pursuant to site plan review, has a limited number of parking spaces. The proposed use would not require extensive parking as it will be limited to a one bay operation and would comply with the parking zoning requirements . I have reviewed the plans for the new addition currently under construction. I applaud the new investment as beneficial to the neigborhood, as well as to the City of Salem as a whole. As a fellow businessman and neighbor I ask that the Board grant the petition for a variance to allow automotive body repair. I believe that requested relief from zoning may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the district or the purposes of the Zoning Ordinance. Thank you for your attention. Sincerely; Gda� Sulu/li an Clipper Ship Inn Titu of *alem, AsssorliusEtts Offict of the (Qitu (Ilauncil z l _= q�� .:., (Nitta ?Hall COUNCILLORS-AT-LARGE STANLEY J. USOVICZ, JR. WARD COUNCILLORS PRESIDENT t994 DEBORAH E. BURKINSHAW 1994 WILLIAM RUSSELL BURNS,JR. CITY CLERK GE A ARMED GEORGE P.McCABE KEVIN IN R.HARVEY JOHN J.DONAHUE JANE STIRGWOLT ENAD P. EARY STANLEY J.USOVICZ.JFL DAVID VID B B..(iAUDR EAULT June 15, 1994 SARAH M.HAYES MARK E BLAIR Board of Appeal City of Salem One Salem Green Salem, MA 01970 Dear Mr. Chairman and members of the Board: I would like to be recorded as being in favor of the use variance being sought by Mr. John Spinale for a repair shop on his property at 34' Bridge Street, Salem, located in Ward Two Mr. Spinale, a Salem resident and long time businessman in our city, is proposing to expand and improve his business, thus increasing the city ' s tax base and creating jobs in our community. Mr. Spinale, who is cognizant of the entrance corridor beautification program, that I am also interested in, has every intention to make his business concept fit into the integrity of our future plans for the lower Bridge Street neighborhood. With this in mind, I would ask the Board to approve this petition and help promote good business development in our city. Sincerely, KEVIN R. HARVEY COUNCILLOR WARD TWO r- � LIIPPEE 40 BRIDGE STREET • SALEM • MASSACHUSETTS 01970 DIAL(508) 745-8022 June 8, 1994 Salem Board of Appeals One Salem Green Salem, MA 01970 Dear Members: Please allow me, Jack Sullivan, to be recorded as in favor of the Board of Appeals granting a variance to John Spinale as Trustee of the 34-38 1/2 Bridge Street Trust at that location. I am a direct abutter, to the rear, as the owner of the Clipper Ship Inn . The proposed use of the property, one bay automotive body repair, is in keeping with the current use of the premises . The site in question is located in a B-2 zone. The site, as a result of a vote of the Salem Planning Board pursuant to site plan review, has. a limited number of parking spaces . The proposed use would not require extensive parking as it will be limited to a one bay operation and would comply with the parking zoning requirements . I have reviewed the plans for the new addition currently under construction. I applaud the new investment as beneficial to the neigborhood, as well as to the City of Salem as a whole. As a fellow businessman and neighbor I ask that the Board grant the petition for a variance to allow automotive body repair. I believe that requested relief from zoning may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the district or the purposes of the Zoning Ordinance. Thank you for your attention. Sincerely; Jack"Sullivan ;Clipper Ship Inn i June 11 , 1994 Salem Board of Appeals One Salem Green Salem, MA 01970 Dear Members : My name is Frank Ball, I live at 23 Bridge Street. I wish to be recorded as in favor of the Board of Appeals granting a variance to John Spinale as Trustee of the 34-38 1/2 Bridge Street Trust. I live across the street from the premises. The proposed use of the property, one bay automotive body repair, is consistent with the current use of the premises and would be an improvement to the area. I have known Mr. Spinale for many years and his business has always been well run and responsive to the neighborhood. I ask that the Board grant the petition for a variance to allow automotive body repair. I believe that requested relief from zoning may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the district or the purposes of the Zoning Ordinance. Thank you. Sincerely; / /=7 ,%�" � Frank Ball THE BILL&BOB'S THE MINOAN RESTAURANT GROUP REAL ESTATE GROUP 'Minos Enterprises *Crete Realty Trust 'N.B.C.Enterprises *Minoan Realty Trust 'Bill&Bob's of Woburn,Inc. 'Minoan Mill Hili Realty Trust *Bill&Bob's of Wilmington,Inc. 'Danvers Atrium ?rust 'Bill&Bob's of Cape Cod,Inc. 'N& C Realty "Bill&Bob's of Lynn, Inc. ENTERPRISES 'NL Enterprises Realty Trust `Atrium Food Gallery,Inc. 9 Bridge Street *B.S. Realty Salem, MA 01970 (508) 745-8887 Fax (508) 741-2178 June 14 , 1994 Zoning Board of Appeals One Salem Green Salem, MA 01970 Dear Board Members: I am in favor of the use variance sought by John Spinale in order to operate an auto body shop at 34-38 1/2 Bridge Street. As the owner of the property at 26 Bridge Street (adjacent to 34-38 1/2) and at 31 Bridge Street (directly across from 34-38 1/2) , the proposed use at 34-38 1/2 Bridge Street will increase business activity in the area. The improvements and landscaping being done as part of this project will enhance Bridge Street. Sincerely, Nondas Lagonakis June 11, 1994 Salem Board of Appeals One Salem Green Salem, MA 01970 To the Board: My name is Charles DiLuiso, I live at 27 Bridge Street. I wish to be recorded as in favor of the Board of Appeals granting a variance to John Spinale as Trustee of the 34-38 1/2 Bridge Street Trust. I live across the street from the premises . The proposed use would be in conformity with the area. I have known Mr. Spinale for a long time and I am sure his operation would be run right. The changes in the property are already for the better. I ask that the Board grant the petition for a variance to allow automotive body repair. I believe that requested relief from zoning may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the -intent of the district or the . purposes of the Zoning Ordinance. Charles DiLuiso r P June 11, 1994 Salem Board of Appeals One Salem Green Salem, MA 01970 Dear Members: - My name is Jean Palardy, I live at 25 Bridge Street. I wish to be recorded as in favor of the Board of Appeals granting a variance to John S inale as Trustee of the 34-38 1 2 Bridge Street p / g r t Trust. I live across the street from the premises. The proposed use of the property, one bay automotive body repair, is consistent with the current use of the premises and would be an improvement to the area. - Mr. Spinale has a young family here in Salem and is a lifelong Salem resident and has operated his business at this location for many years . I feel that the Board should help a Salem business when it can. I ask that the Board grant the petition for a variance to allow automotive body repair. = :-a I believe that requested relief from zoning may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the district or the purposes of the Zoning Ordinance. Thank you. Sincerely; -""Jean Palardy (' (situ of*dear, Aussac4usetts 0 (office of the (Attu Tounctl (1[ttu mail COUNCILLORS-AT-LARGE STANLEY J. USOVICZ, JR. WARD COUNCILLORS PRESIDENT 1994 DEBORAH E. BURKINSHAW 1994 WILLIAM RUSSELL BURNS,JR. CITY CLERK GEORGE A.AHMED GEORGE P.McCABE KEVIN R HARVEY JANE STIRGWOLT JOHN J.DONAHUE STANLEY J.USOVICZ,JR LEONARD F.O'LEARY DAVID B.GAUDREAULT June 15, 1994 SARAH M.HAYES MARK E.BLAIR Board- of Appeal City of Salem- One Salem Green Salem, MA 01970 Dear Mr. Chairman and members of the Board: I would like to be recorded as being in favor of the use variance being sought by Mr. John Spinale for a repair shop on his property at 34� Bridge Street, Salem, located in Ward Two Mr. Spinale, a Salem resident and long time businessman in our city, is proposing to expand and improve his business, thus increasing the city' s tax base and creating jobs in our community. Mr. Spinale, who is cognizant of the entrance corridor beautification program, that I am also interested in, has every intention to make his business concept fit into the integrity of our future plans for the lower Bridge Street neighborhood. With this in mind, I would ask the Board to approve this petition and help promote good business development in our city. Sincerely, 1G`ec-- KEV'IN R. HARVEY COUNCILLOR WARD TWO . . . . . . . . . . . . . . . . . . . . . . . . M �� ��• �i�u >si ��iFm ,����rinz$Pits rzLL - _ �IIZIrII III .Z -0 TnE EDARD Of APPEALS: e _noers-anea represent _-at ire .~e owners :f a certain oarcei of lano locate . . . . . . . . . . . . . . . . . . .=freer; cmng District.[j .e =t'a t-1rCe : _ ;CTnrr_a ov --Cr_'.anlSl . . . . . . . . . . . . . . . assacnusettc : :are euiidino :Lae. ans :--scr,oina the worK or000sea. :.ave Been s_iomittea to the inspector of Buildings in ccoraance ,nth `ectlon iz A. 1 of the _Lnino Ordinance. � m m o cn co r � co L6 O .3' ' 'he aPplication for Permit was denied by the Inspector of Buildings for the following reasons: 0 :2ec f \0 pe<aL The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem Zoning Ordinance and/or the Building Code and order the Inspector of Buildings to approve the application fee permit to build as filed, as the enforcement of said Zoning By-Laws and Building Code would involve practical difficulty or unnecessary haraship to the Undersigned and relief may be granted without substantially dero- gating from the intent and purpose of the Zoning Ordinance and Building Code for the following reasons: ('e•�'•`�•o�ece_. '2ec��est s ��.�t �>^e �O�YYLP� Av_)'T A VPvL. n "c.e }c> AL.I..Uv "l'�^2 �IYe,intSPS' •}o be �SCfJ )ofL A j vvLo+F J v3o•p ', VZ ePtq% 2 . The P�ew�`Se S (a-2) t%14ZQIS- " c2 a11va\ly Pk-IL42 :� A ✓',vS . ,eSS 'ZowC (�q ,hnwo" \ b Ascyt 5vb51n "�L2 :�v�F,.J_A p_t Zo w'..•.+q 6�c..m ••)q•••,e� C2 it't A1�x3 ges'a�-.t V' bws 1van WOSe.hJ -Vl..e SAle, �1A.vv.it e, f3oAVL I> �sv�i Owner. .. . . . . Address. 3'-1.3£s �/z �3�.o i:e S'V. .. . . .. . .. . . . Teleonone. . . . .� . . . . . . . . . . . . . . . . . . °etit:oner. . wnlc �t�s�� 'ddress . .31-3.4R ' `0.04e. S� . . . . . . . . . . te. . . .s�2�.1.� . . . . . . . - . 7 tS- linb. . V`J. . S -7 :. . . . . . . . . . . -hree conies of the application must to filea with the Secretary or the Board of =opeais ,nth a cneck. `or aavertisina in the amount or. . . . . . . . . . . . . . . . . . . . . .. . . . 'our weexs prior to the meetina of "ie Boarc of ADoeais. :hecK oayaole to The venina News. 1 Z n Z L O n Z 00 �nrnoa phsnoi r'?pi6t1 _, '6t COMMONWEALTH OF MASSACHUSETTS ESSEX, SS . SUPERIOR COURT DEPARTMENT SALEM DIVISION C.A. NO. 34-38 1/2 BRIDGE STREET ) TRUST JOHN SPINALE ) TRUSTEE ) VS . ) FRANCIS X. GREALISH, ) GEORGE AHMED ) STEPHEN TOUCHETTE, ) STEPHEN O'GRADY, ) and ALBERT HILL, AS THEY ) CONSTITUTE THE SALEM ) BOARD OF APPEALS ) NOTICE OF APPEAL Notice is hereby given pursuant to M.G.L. Chapter 40A Section 17, that an Appeal has been filed with the Superior Court Department, Essex Division, on February 28 , 1994 appealing a Decision of the City of Salem Board of Appeal dated January 19 , 1994 and filed with the Salem City Clerk on February 8, 1994 . Said Decision denied the application of 34-38 1/2 Bridge Street Realty Trust, John Spinale, Trustee for a Special Permit allowing the premises to be utilized for auto body repair. 34-38 1/2 Bridge Street Realty Trust, John Spinale, Trustee By its attorney Stephen P. Lovely, Esquire BBO#560533 14 Story Street Salem, Massachusetts 01970 (508) 745-8274 Dated: February 28 , 1994 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS . SUPERIOR COURT DEPARTMENT SALEM DIVISION C.A. NO. q y - Li 62- � 34-38 1/2 BRIDGE STREET ) TRUST JOHN SPINALE ) TRUSTEE ) VS . ) FRANCIS X. GREALISH, ) GEORGE AHMED ) STEPHEN TOUCHETTE, ) STEPHEN O' GRADY, ) and ALBERT HILL, AS THEY ) CONSTITUTE THE SALEM ) BOARD OF APPEALS ) COMPLAINT Now comes the Plaintiff in the above captioned matter stating as follows : 1 . Judicial Review is hereby requested under Massachusetts General Laws, Chapter 40A, Section 17 as amended, of the decision of the City of Salem Board of Appeal dated January 19 , 1994 , filed with the City Clerk of the City of Salem on February 8, 1994 , so far as it relates to the premises at 34-38 1/2 Bridge Street, Salem, Massachusetts . 2 . The Plaintiff, 34-38 1/2 Bridge Street Reai Estate Trust, John Spinale, Trustee, is a Realty Trust with a principal place of business at 34-38 1/2 Bridge Street, Salem, Essex County, Massachusetts . f 3 . The Plaintiff at all times hereto is the owner in fee of a certain parcel of land located in the City of Salem, Massachusetts, known and numbered as 34-38 1/2 Bridge Street, County of Essex, Commonwealth of Massachusetts . 4 . The Plaintiff, John Spinale, (hereinafter "Plaintiff" ) is a Trustee of 34-38 1/2 Bridge Street Realty Trust . 5 . The Defendant, Francis X. Grealish, of 8A Cleveland Road, Salem, Massachusetts was chairman of the Salem Board of Appeals . 6 . The Defendant, George Ahmed of 102 Columbus Avenue, Salem, Massachusetts is a member of the Salem Board of Appeals . 7 . The Defendant, Stephen Touchette of 452 Loring Avenue, Salem, Massachusetts is a member of the Salem Board of Appeals . 8 . The Defendant, Stephen O'Grady of 125 Webb Street, Salem, Massachusetts is a member of the Salem Board of Appeals . 9 . The Defendant, Albert Hill of 4 Larkin Lane, Salem, Massachusetts is a member of the Salem Board of Appeals . 10 . That the Court has jurisdiction of this matter pursuant to Massachusetts General Laws, Chapter 40A, Section 17 as it constitutes an appeal from the Decision of the City of Salem Board of Appeal, a certified copy of said Decision is attached hereto as Exhibit "A" . 11 . On January 19, 1994 , Plaintiff, through his attorney, Stephen P . Lovely, appeared before the Defendants, in their capacities as members of the Salem Board of Appeals, for the purpose of his application for a Special Permit, allowing a use of auto body repair on the premises of 34-38 1/2 Bridge Street, r Salem, Massachusetts . 12 . Notice of the hearing was sent to abutters and others and notices were properly published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. 13 . A public hearing was held. Attorney Lovely, on behalf of the Plaintiff, offered testimony in favor of the Special Permit for the Plaintiff, citing that under the City of Salem Zoning Ordinance, that the auto body use is allowable by Special Permit and the benefits to the neighborhood promoting the public health, safety, convenience and welfare of the City' s inhabitants . Attorney Lovely stated that the Plaintiff had spoken 14 . y y P with all his neighbors and that there was no opposition in fact throughout the planning process the neighbors had been supportive . Attorney Lovely also stated that Ward Councillor Kevin R. Harvey represented the neighborhood and was in favor of the Special Permit . Attorney Lovely also made the point that there was another auto body in the proximity directly across Bridge Street . 15 . There was no opposition to the request and the public hearing was closed. 16 . Defendant, Albert Hill , having been opposed to another aspect of the project as a member of the Planning Board (although he voted present upon the final action of the Planning Board) raised Planning Board issues that created confusion and were entirely outside the issue of the Special Permit that was before the Board of Appeals . 17 . Plaintiff' s attorney attempted to object and be heard on the comments of Mr. Hill however the Chairman Mr. Grealish refused to allow further comment citing the closure of the public hearing. 18 . The Salem Board of Appeal voted to deny the application of the Special Permit . 19 . The Plaintiff is a party aggrieved by the Decision of The Salem Board of Appeal . 20 . Defendant Albert Hill should have recused himself from voting on the petition and refrained from comments that prejudiced the petition of the Plaintiff . 21 . The Defendants as members of the Salem Board of Appeal allowed improper testimony of Mr. Albert Hill to influence their decision. 22 . Defendants were incorrect in their decision that the "use" could only be granted by variance and not by the Special Permit as applied for. 23 . Defendants decision exceeded the authority of the Board in that it was arbitrary and capricious and had no basis in law and was not based on any findings of facts based on proper evidence presented to the Board during the public hearing. 24 . The Defendant' s denial was defective on its face in that there was no rebuttal to the Plaintiff' s testimony that the Special Permit was in harmony with the general purpose and intent of the Zoning Ordinance By-Law and by its failure to find specific facts that would demonstrate that the proposed use for which the Special Permit was not in harmony with the general l purpose and intent of the Zoning Ordinance. WHEREFORE, the Plaintiff' s pray: 1 . That the Court hear the evidence and determine the facts and upon the facts so determined, order, decree and adjudge the Defendant City of Salem Board of Appeals Vote and Decision of January 19 , 1994 is invalid, of no force or effect, and that said Decision be annulled; 2 . That the Court award Plaintiff its costs and attorney' s fees in this action; and 3 . For such other and further relief as this Court deems just . 34-38 1/2 Bridge Street Realty Trust, John Spinale, Trustee, By its attorney, Stephen P . Lovely, Esquire BBO#560533 14 Story Street Salem, Massachusetts 01970 (508) 745-8274 Dated: February 28 , 1994 r of -`� ttlem, Tf agsadjusetts ;,4 s19aarb of cr'�u}tettl Fie d 3 hi c,? DECISION ON THE PETITION OF JOHN SPINALS, TRUSTEE FOR VARIANCES AND SPECIAL PERMIT AT 34-38 1/2 BRIDGE STREET (B-2) A hearing on this petition was held January 19, 1994 with the following Board Members present: Francis Grealish, Chairman; Stephen Touchette, George Ahmed, Albert Hill and Stephen O'Grady. 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, owner of the property, is requesting a Variance to allow addition to be constructed as previously granted in a decision of the Board of Appeal dated July 21, 1993. The City of Salem made changes to the plan voted on and granted July 21, 1993 and eliminated some of the parking. Petitioner is also requesting a Special Permit to allow the addition to be used for auto repair and body shop and for storage, the property is located in a B-2 district. 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 Section 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 Variances which have been requested may be granted upon a finding of the Board that: A. Special conditions and circumstances exist which especially affect the land, building or structure involved and which are not generally affecting other lands, buildings or structures in the same district. B. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioner. DECISION ON THE PETITION OF JOHN SPINALE, TR. FOR A SPECIAL PERMIT AND VARIANCE AT 34-38 1/2 BRIDGE STREET, SALEM page two C. Desirable relief may be granted without seant3 a�o ftt1q ent to the public good and without nullifying or substantially derogatiYt from the intent of the district or the purpose of thd�,6tdinance. The Board of Appeal, after careful consideration of the evidence presented, and after viewing the plans, makes the following findings of fact: 1. There was no opposition to the request. 2. The Plans as submitted were changed at the request of the Planning Board, reducing the amount of parking spaces and adding landscaping. 3. The size of the addition has not changed. 4. The Board of Appeal felt the use could only be granted by a Variance not a Special Permit has requested. The prior use granted, namely retail and storage was allowed under Special Permit requests. 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. Special conditions exist which especially affect the subject property but not the district in general. 2. Literal enforcement of the provisions of the Ordinance would involve substantial hardship on the petitioner. 3. The Variance requested can 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. 4. The Special Permit requested in not in harmony with the neighborhood or with the zoning district the property is located in and will not promote the public health, safety, convenience and welfare of the city's inhabitants. Therefore, the Zoning Board of Appeal voted 4-1 (Vr. Hill opposed) to grant the Variance requested and accept the plans as revised and approved by the City of Salem Planning Board. All conditions of the previously granted petition shall remain in effect and are listed below with the exception of condition #2 & #6 which have changed as a result of the revised plans. 1. Petitioner shall comply with all city and state statutes, codes ordinances and regulations. 2. All construction shall be done per the revised plans and dimensions submitted January 19, 1994. 3. All requirements of the Salem Fire Dept. relative to smoke and fire safety shall be strictly adhered to. DECISION ON THE PETITION OF JOHN SPINALE, TR. FOR A VARIANCE AND SPECIAL PERMIT AT 34-35 1/2 BRIDGE STREET, SALEM page three FED 3 io '�y 4. Petitioners shall obtain a building permit prior �d,copstruction. y� _ _ aS 5. A Certificate of Occupancy is to be obtained. 6. Parking is to be provided as per the plans submitted 1/19/94. 7. Exterior finishes of the proposed construction shall be in harmony with the existing structure. The Board of Appeal voted 3 - 2 against the motion to grant a Special Permit to allow the addition to be used as an Auto body, repair and storage facility. (Members O'Grady, Ahmed & Grealish voted in favor of the motion, Members Hill and Touchette voted in opposition) The motion to grant having failed to garner the required four (4) affirmative votes fails to carry and the request for the Special Permit is denied. Variance Granted and Special Permit Denied January 19, 1994 Francis X. Grealish, Chairman 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 of 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 10-LJUN 05-27-9 4.11:41:26.3 3 3 1 O-L JUN 05-27-94 11-41,26.333 ;r CITY OF SALEM CITY OF SALEM BOARD OF APPEAL BOARD OF APPEAL 745-9595 Ext. 381 Will hold a pu�lic hearing for all persons inter- 745-9595 Ext. 381 ter- ested in the petition submitted by JOHN Will hold a pu�lic.hearing for all persons in bmitted by JOHN SPINALE, TR. for a Variance from use to allow ested in the petition so automotive body repair at 34-38 1/2 BRIDGE.ST. SPINALE, TR. for a Variance from use to allow (B-2). Said hearing to be held WEDNESDAY, a e bod repair at 34-38 112 BRIDGE ST. JUNE 15, 1994 AT 6:00 P.M., ONE SALEM utomot'v y n to be held WEDNESDAY, GREEN, second floor. B2 Said hearl ' 6:00 P.M., ONE SALEM ) I , 1994 AT STEPHEN TOUCHETTE, Chairman JUNE 5 d floor GREEN 'e'o' June 1, 8, 1994 SN33310 STEPHEN TOUCHETTE, Chairman June 1, 8, 1994 SN33310 ,15-27-941.11:41:26.33310-LJUN -05-27-94.11-41,26.33310-LJUN CITY OF SALEM CITY OF SALEM BOARD OF APPEAL BOARD OF APPEAL 745-9595 Ext. 381 745-9595 Ext. 381 Will hold a PuWic hearing for all Persons inter- Will hold a Public hearing for all persons inter- ested in the petition submitted by JOHN ested in the Petition submitted by JOHN SPINALE, TR. for a Variance from use to allow SPINALE, TR. for a Variance from use to allow automotive body repair at 34-38 1/2 BRIDGE ST. automotive body repair at 34-38 1/2 BRIDGE ST. (13-2). Said hearing to be held WEDNESDAY, (B-2). Said hearing to be held WEDNESDAY JUNE 15, 1994 AT 6:00 P.1g., ONE SALEM JUNE 15, 1994 AT 6.00 P.M., ONE SALEii GREEN, second floor. GREEN, second floor. - STEPHEN TOUCHETTE, Chairman STEPHEN TOUCHETTE, Chairman June 1, 8, 1994 SN33310 June 1, 8, 1994 SN33310 05-27-94.11:41:26.33310-LJUN CITY OF SALEM BOARD OF APPEAL 745-9595 Ext. 381 Will hold a public hearing for all persons inter- ested in the petition submitted by JOHN SPINALE, TR. for a Variance from use to allow automotive body repair at 34-38 112 BRIDGE ST. (B-2). Said hearing to be held WEDNESDAY, JUNE 15, 1994 AT 6:00 P.M., ONE SALEM GREEN, second floor. STEPHEN TOUCHETTE, Chairman June 1, 8, 1994 SN33310 . . . . . . . . . . . . . . . . . . . . . . . N1• �\ �iilr ai it n ��� rinzl3�its •r ��� �IIIILII III .STFTII1 i oe.. 7 THE OARO OF APPEAL: e jnoers-:nea reoresent _nat -e ;re :-e owners .f a certain parcei of land locate = . . . . . . . . . . . 3`f- .8a!� .ri':" . e. . .s.-t . . . . . . . . . . . . . . t Zaino District3^L. -na id :2rcel _ ;=forrea t'! =ACT' n15i . . . . . . . . . . . . . . . "-.Sacnusett: : _ate Euildino C:;ae. lens _escr-,oina the worK or000sea. gave teen siomiztea to the insoector of Buildings in :ccorcance with Section !X A. 1 of the Zznina Orainance . n 3 N m O r W v n ap C3 co v N m � � U N G -he Aoplication for Permit was denied by the Inspector of Buildings for the following reasons: j)"-ne c-i The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem Zoning Ordinance and/or the Building Code and order the Inspector of Buildings to approve the application fee permit to build as filed, as the enforcement of said Zoning By-Laws and Building Code would involve practical difficulty or unnecessary hardship to the Undersigned and relief may be granted without substantially dero- gating from the intent and purpose of the Zoning Ordinance and Building Code for the following reasons: !{�eS•),% ++tee fj'�,oAA0 9"01'-A 09 LP APE"ItijC(f -�o ALLpw - ,\e pelewi• SeS o SRC JSep -�� Rv'la•xc••l.af ' � 2epra� dZa A ,e ./ov,:"s c e P MP ✓v�kWS AHe •i•.-+ i9 Go si•veS5 7_e3 cf13-Z ) Pq�,pnwOVld CE'_w+q�••-- ✓LP4i+:•C �:b•vg � ..•. p0`je0 lJI� A'ht+ Qlnrvrl'..vq c�d��•�.r� � irv� .-1 CvhwPw•I Owner. �. . . . . Address. . . .�4.^3$.l.l? . .r3�:, oy c.S�. . . .. . . . Teleonone. . . . . . . . . .. . . . . . . . . . . °etit4oner. . ..�41�`� �. . '��'""til�i 'ddress . . A `.3$.'!?. .r3v.iacae. .51. . . . . . . . . . te. . . . . s.f.2.3.�.G�l . . . . . eieonone. . . . . . . . . . . . . . . . . . . . . . . . y. . . .S:k".k. . . 7 'el . ,. :�Sy .. . . . . . . . . -hree ccoies of the application must `_e filed with the Secretary of the Board of .opeais ,nth a cneck. for aavertisino in the amount .. . . . . . . . . . . . . . . . . . . . . . . . . . `our '.1eeKs prior to the meetino of t"e Board of ADpeais . :hecK oayaole to The Venina News. C .. MCI , _ pninol BOARD OF ASSESSORS • CITY HALL PAGE . 2 DATE : 06/01/94 2 • 3 CERTIFIED ABUTTERS LIST 3 4 - 5 5 SUBJECT PROPERTYs MAP. 3'7 LOT: 0020 SUFF. "/�' 37 2/ A^ s . • s PROPERTY ADDRESS." 0038 BRIDGE STREET 1/ ��Oad�J`' °O3`/ F,313E SED OWNL11 T' :IR3'! F.XA-% ::J W SRI . 5 SPINAL.E JOHN D TR w-LL �m,/u 7° 0 5 ,2 ,o - Ef.£ •�S'SESSEv �WN'ER fHESS' 3 1 „ 14 • ,2 37 0020 0038 BRIDGE STREET 1/2 THIRTY FOUR-36 112 BRIDGE ST RL.Y TR 71 COLUMBUS AVE ✓ ,5 0 C_RI14A I F N--f,�-.ro cqi cm, MA n197n ,s • 15 37 0021 003.4 BRIDGE STREET THIRTY FOUR-38 1/2 BRIDGE ST RLY TR 71 COLUMBUS AVE ;B . SPINALE JOHN D TR SALEM MA 01970 9 16 37 •'81n 9909 Db7nrE• CTbCrT ocAb NEW ENGI AND POWER CO 95 RESEARCH--AVENUE -- 21 AT•T PROPERTY TAX DEPT' WEST'BOROUGH !1A 01581 22 � ,a 37 0022 0026 BRIDGE STREET CRE'TE REALTY TRUST 9 BRIDGE STREET ✓ 230 1 �ryM e+. rc ,vnal r, SAI EM MA 01970 24 19 - Lfl.:,rrn�rca. vAa--tyt 20 37 0023 0013 THORNDIKE STREET PETRINGA JOSEPH R 13 THORNDIKE ST /� zs • 27 . 21 STEP!-!ANTE. A SALEM MA 01970 / 28 z2 128 3'7 33214 CS'3'5 T=!-1OHN011-W S REE'T USTAFSON PGROv, E '!S T—.r,:3.r�",gin . ✓ 2e !z3 SALEM MA 01970 / . • 24 37 0025 0021 THORNDIKE STREET MCINTIRE CHE:ST'E:R L. 21 THOR14DIKE ST ✓ 3+ 9{;rj?A A--A. _ f^jAi Aht, MA 28 3 26 37 0079 0029 BRIDGE STREET SHAKERS REALTY TRUST 29 BRIDGE ST --•'� •27 INGEMI ARTHUR P TR SALEM MA 01970 �35 2s .7.�7 038i C'929 T-140RNP�KF-- i-T�'t&FT 14A-54 rn'"" W-Af Tu ric 3 37 29 380 30 36 0199 0020 RICE STREET" ARUNDEL RICHARD J 20 RICE ST � 3 S-1 .17AR :?u_ rl CAI r-kj MA n19 0 / ao 3, ., ,../ 36 0200 0018 RICE STREET PAGE CHARLES D 18 RICE ST 41 32 42 33 SALEM MA 01970 43 3i £ EY1 S^r"ru 4lCe SSE€'T _ tecCaP,� _cPAnlr r� _, 4F PLCE �T / a 3a NANCY A SALEM MA 0.1970 ✓ / 45 • . 36 36 0202 0016 RICE: STREET REAR EDGETT JOYCE L 112 VIL.L.AGE POST ROAD ✓ 17 4a 37 _ ItPNSIERG...I'.TA n•t9:'-) 39 36 0203 0014 RICE STREET � DICKMAN DONNA M 14 RICE ST �� so SALEM MA 01970 s, 39 -s r C+2c 1 nr•,4.p b r rC Qx Err r.n D A I dJv,�,�.,,r,Y,1e,.Se.ES 1 t�GCPw 1 0 E'T At T 4•^ P T r G QT 52 40 SALEM MA 01970 54 •41 36 0205 0010 RICE STREET CYR JOHN H 10 RICE ST v 550 42 DATRTCIA M czAt v- j ma nt97n 56 43 36 0206 0008 RICE STREET DAIL.EY LAWRENCE O 8 RICE.. ST tr � ! 57 55 .44 DA.ILEY ELAINE L SALEM MA 01970 59 45 - 4- nt0? 9906 RICE-. 5T'R€€T MCCARIUY IOHN G A RTra qT 46 ELIZABE'TH J SALEM MA 01970 v 82 •47 36 0208 0004 RICE STREET IIACKE14ZIE WIL.LIAIM 4 RICE ST 45 ...............__._.._.....................-....-.__...,..,., GA1 F.N r14 n•t 970 84 49 36 0209 201 0044 BRIDGE STREET OAMANIS CLEOPATRA 25 FORRESTER STREET B5 .5o SALEM h1A 01970 � 670 51 s5 sz ^ ss •53 / / 70 . ]1 54 72 _.__,__ ._ .__ .�___________.__ .� 175 ss PETER M. CARON .5s CHIEF ASSESSOR �•�•57 BOARD OF ASSESSORS CITY HALL PAGE: DATE v 06/01/94 2 CERTIFIED ABUTTERS LIST 3 3 4 4 SUBJECT PROPERTY: MAP. 3*7 LOT: 0020 SUFF: PROPERTY ADDRESS: 0038 BRIDGE STREET 1/2 7 A(:LSFqAF,rj I)WlkfrF? THIRTY EQUE-16 PRTI'6F ST P( Y TR SPINALE JOHN 0 TR :0 1 MAC I OT SUFF 0R0PF-RT-Y--ADDRE-cZ— 4-S-SESSED—OWUEP MATT INN ADD F--Qct 12 10 13 36 02-10 0040 BRIDGE STREET PILGRIN tetoTEL INC 40 BRIDGE STREET' :4 T)�.k E- ,�M M n1.97n. 1: 0 :3 36 0230 0031 BRIDGE STREET N L ENTERPRISES17 REALTY TRUST 9 BRIDGE ST MA-4p �B LA60MAKIS NONDAS TR SALEM MA 0-197LI. 9 15 20 99G)SAWAITE r� A 14 REAl Ty 121A-r 35 BRIDGE SIR 21 CUNHA FERNANDO M TR SALEM MA 0-1970 220 0 7 :8 36 0232 0033 BRIDGE STREET GIANEL.LI MICHAEL 6 FAIRVIEW RD 23 PRANCES -q4l9"PJ MA n' -qZ[? 24 25 20 2e • 27 21 2E 22 2s •23 3C 31 24 2Y 25 3- 34 •26 3e 27 3e 28 37 •29 3e 3S 30 4c- 31 41 •32 42 4-- 33 44 34 46 4e:1 35 471 36 48 37 49 5, 0 •38 51 39 is;1 40 53 41 55 42 43 I57 5e • •44 59 45 60 46 61 47 63 48 84 0 49 :5 6i*050 .7 51 68 52 69 1 70 053 0 54 I7, 72 5 PETER 11. CARON 73 7. 056 CHIEF ASSESSOR L75 0 7 7 $ t826e Off. *g o PARKING r 6` 2340 -TOO ai 5s $ . �. ' o x 34 ttJ r „ AMPS t y 4p5s 50 " 6a pP log 43 /�/�Bo /40 © 46 , o., 44 P4R k e4 �$ klNG /9 '4s- SFREErOp m J 63 I }}48 /,26AC PARKING w' l :t zc o00 a°os � 34 + K P Ir' ERE A E. -- GATE 50 Row w s. F R °?rs ' �1 90 ,�vyt ,o "o � �l i• -83 �2 KD' _ l680 30 O O - '0 4A t e 41 ag33r4 / 3$ g 73 t.!r}4 p 0 W ; s g tt9jd fT?0 p,h N ti ._ SFR T6 4am �� 24 rag r o -- f E F n 11 ,1000 24 3 - " N�STp pNY s x 77 f CpM ✓ i boo rep ��� 13000 2 64 < ^ GAS 23, ZI 2 v "C '� ' ,0500 -3 1 6q \, 3 Y " Q s fAC 73 J IAA � 3 Q MERR!LL all— iit' 20 a` r 4Q! 230 N ...W NGLAND POWER LINE 1 PJq o113 -- @a F E R R Y 5 T. t 235� // Too 23 b q6} 6.8 AC, Ftcfs 40 as O p p + ,� P A R K I N 0 $ s t9 6 tote, N + c t:r st n 60M I 236 24 4 244 45 1as t � EE ~" �( 37 3. sss. `—' 2�9 �40 2,9r 4 °4 ° +�'hl tV n ' v 2B O�JS'I tg t89 238 , rl j�� E�E T (�6 + (4656 sop_tramIj PLP'N�m'-ti^ 'so1 T: T �— - - o•if 856 N s $253 25& w