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16 SAUNDERS STREET - BUILDING INSPECTION 16 SAUNDERS STREET �� ZONING DISTRICT - R2 PROPOSED REQUIRED EXISTING ADDITION FRONT 15 9t 9f SIDE 10 4f _ 4t CROSS STREET CT. REAR 30 64t 62# 6-2.5'47 I MAP 36 LOT 78 AREA= 31120 t S.F. Yy N ,JO /eoryaiE 5ethnck N MAP 36 LOT 87 MAP 36 LOT 79 C0MM0NWEALTf4 OF .ELIZABETH MCCAMMON MASSACHUSETTS THOMAS J. MCCAMMON, JR. %GARAGE..: PROPSED 2ND PROFUSED 73, — FLOOR _ � existing PORCH Y" bulkhead 1 to remoin 14*f a PROPOSED; ADDITION ; EXISTING IST 'FL. y S PROPOSED 2ND FL. AFLFtl4d 9t5' A ,tG pf1Y, ICe t,5F` .a O Iry,M1YG V2Q Q PROPOSED #16 BALCONY 12't '-: PROPOSFD' i t� 7mniyurd stitback ,..! ADDITION %4. existing °i Pemaino m l 44.5't SAUNDERS STREET PLOT PLAN OF LAND 16 SAUNDERS STREET SALEM PROPERTY OF LESLIE BYRNE SCALE 1 " = 20' MAY 22, 2009 NORTH SHORE SURVEY CORP. 14 BROWN ST., SALEM, MA 978-744-4800 #3235 H E xU ~ O W�0 �® cK4Txc M~'a � tl1 EkIS1IxC GA4M.'E �, '�F F+1 W� �t Q I d Q E oo z o ma rxli m v� s-i�• Is'-z�• �-r E m ur c 0— = 0 0 S. U In In DID ID C ur DID a) = 00 o MNOOn o O xxooxs 3SVNGRBIOVE ENTRE KRENEN/OINING Q EXISTNG NRNESS �e�s's o�y� REMOVE ENTRE STORM DWR MIMNEY&DREP U ISSUE DATE:. F JOBmm NUMBER: RWM BATT DRAWN BY: MB NB/SHOWER CAP PWMBNG SCALE: AS NOTED i"-x.-c UP .AooM REVISIONS: -r EXISTING BASEMENT PLAN °IA-1' rEXISTING 1ST FLOOR PLAN EX SCALE: 1/8" = —0" CALE: 1/8" = 1'-0" E o U ~ O o W ❑ ❑ "o F1'1 N pf M 8 W O N W� I � 9101 ® ® � s wf at r na 4 Im �a Ffl 01 1ST RaaQ 15i RaOR o E pp L m d mwum ASSUMED J p BEV.a'-a" EIEV.tl-0' E Ot N E I EXISTING FRONT ELEVATION EXISTING LEFT ELEVATION SCALE: 1/8" = 1'-0" SCALE: 1/8" = 1'-0" v, c + U -om o o � n Li U C) o utn rn L. o L: moo N � U 'C �a < a) 0 0 E 00 ro ® o Q 1S7 a" ISSUE DATE:. AMMJOB NUMBER: . EIEV.a'-a' 3 E DRAWN BY: MB SCALE: AS NOTED REVISIONS: EXISTING REAR ELEVATION EXISTING RIGHT ELEVATION SCALE: 1/8" = 1'-0" SCALE: 1/8" = 1'-0" E X 2 E� E xF U C W O mWWO N3 ~a I v1 gImNO GNUf.[ q�rnM fMSGC ^w •_ > n� Q I m r�t< m L W J N n m o m� x rn N 10-SECOND BOOR ABOVE I-y E I _ CO ED MRCN x N U' ❑ C 00 O N - mO 4J O n e aTCE Ly ,Vy p MU mxrtacNEN a� C ad c 3 au oN m a vlC' o O OP ISSUE DATE:. JOB NUMBER: . DRAM BY: MB INND RWY '"-'°' 'I-°' SCALE: AS NOTED PROMDE ACCESS h REVISIONS: S:VE17IIA00N•M. IN CRAWL SPACES NRE CAS DREPIACE RELOCATED RROCATED MNDOW WtNWIN PAM PROPOSED BASEMENT PLAN g6 N6 WOOD PROPOSED 1ST FLOOR PLAN SCALE: 1/8" = 1'-0" DP SCALE: 1/8" = 1'-0" Al E O xU 0 yC/l)W O W W L g4iING VAALE - IXWNY WN6E Q I d I-a Li E Go z Wim" nd o m� xlm�N H E I m � f RROCAIED MNOOW m C O+ YOTIERy eEDXWY f N � O O P BEyMoof U 00 - 0 N OB C O WIX _ b d Q _ NILL .r-1 C ® RNLINO J O PALL D NtY Do �+ CON d ® ® I .T DN ATTIC A CESS OJ — m a v d UXFlXISXEO I.TfIC U a w.l.c. ISSUE DATE:. JOB NUMBER: W R BmO m 4MEo cYluxc E-.IE DRAWN BY: MB SCALE: AS NOTED%LLPow R YUUGT1S (I REVISIONS: I1 BELOW FUTJRE GS nR DREFGEE PROPOSED SECOND FLOOR PLAN PROPOSED ATTIC PLAN 1Ep SCALE: 1/8" = 1'-0" SCALE: 1/8" = 1'-0" /\ =0- - - - . .. _ �IIIIII AD RCOR AD 100R __ _ IIIIIIIIIIIIIII- _ - ... - .. DO .. 1111 -� ISI n- ig � � Illlllp\ _moi-ice -'KU�'UbLu FRONT ELEVATIONPROPOSED ISSUE DATE:. r JOB NUMBER: 1111111 - AD RDDR REMSIONS 1ST 1001? EASING WNWW "PROPD ILEVATION PROPOSED RIGHT ELEVATION _ ■� O CITY OF SALEM, MASSACHUSETTS 03� i BOARD OF APPEAL 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS O 1970 9 TELEPHONE: 978-745-9595 �N7vEU FAX: 978-740-9846 7pp �0t KIMBERLEY DRISCOLL MAYOR 3 �J July 28, 2009 Decision City of Salem Zoning Board of Appeals Petition of LESLIE BYRrNE, seeking a Special Permit in order to increase the size of a legally nonconforming structure, and Variances from front and side setback requirements, to allow for the addition of a second story(with attic) and expansion of the footprint of the house on the property located at 16 SAUNDERS STREET, Salem, MA, in the Residential Two-Family Zoning District(R-2). Petitioner seeks a Special Permit pursuant to the Salem Zoning Ordinance, §5-30), Extension of Nonconformity, 58-4, Nonconforming Structure, and§8-6, Board of Appeals; Granting Special Permits. Petitioner also seeks Variances pursuant to the Salem Zoning Ordinance, §6-4, Table I: Residential Density Regulations. Statements of fact: 1. Attorney Scott Grover represented the petitioner, Leslie Byrne, at the hearing. 2. In a petition dated June 24, 2009, the applicant requested a Special Permit and "such other relief as the Board deems appropriate" in order to increase the size of a legally nonconforming structure. The Building Inspector determined Variances were needed because the plans submitted with the application show an expansion of the house's footprint such that the structure would encroach on the front and side yards. 3. Plans also showed the addition of a second story. The portion of the proposed second story that did not represent any increase in the existing footprint did not require Board of Appeals relief. 4. A public hearing on the above mentioned Petition was opened on July 15, 2009, pursuant to Mass General Law Ch. 40A, §§ 11. The pubic hearing was closed on July 15, 2009, with the following Zoning Board of Appeals members present: Robin Stem (Chair), Richard Dionne, Beth Debski, Annie Harris, Bonnie Belair (alternate), and Jimmy Tsitsinos (alternate). 5. At the hearing, several residents voiced opposition to the project, citing concerns that the project would block water views and light, and would decrease the value of an abutting house. Ward 7 Councillor Joseph O'Keefe also spoke in opposition. A petition was submitted with 13 names of residents in opposition to the project, one 2 of whom also submitted a letter of opposition. An additional four residents submitted letters of opposition. 6. Several residents spoke in support of the petition, saying the project would enhance the streetscape and improve the neighborhood. In addition, two neighbors submitted letters to the Board in support of the project. 7. At its meeting on July 15, 2009, the Board of Appeals voted five (5) in favor and none (0) opposed to grant a Special Permit under§5-30), Extension of Nonconformity, §84, Nonconforming Structure, and §8-6, Board of Appeals, Granting Special Permits, and Variances from the dimensional requirements of X64, Table I: Residential Density Regulations. The Board of Appeal, after careful consideration of the evidence presented at the public hearing, and after thorough review of the plans and petition submitted, makes the following findings: 1. Special conditions and circumstances exist affecting the parcel or building, which do not generally affect other land or buildings in the same district, as the property is oddly shaped: it is nearly triangular, with an angled Northwest lot line. Additionally, the house is smaller than the other houses on Saunders Street and is the only one-story house on the street. 2. Literal enforcement of the provisions of this ordinance would involve substantial hardship, financial or otherwise, to the appellant. Space is needed to accommodate a growing family, and owing to the small size of the house (smaller than others in the district) and the irregular shape of the lot, expansion of living space in accordance with zoning requirements is difficult. 3. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning ordinance. The change most detrimental to neighbors—addition of a second story— is already allowed as of right. The additional relief granted to allow expansion of the footprint is de minimus. 4. The applicant mayvarythe terms of the Residential Two-Family District to construct the proposed development, which is consistent with the intent and purpose of the City of Salem Zoning Ordinance. 5. In pemlitting such change, the Board of Appeals requires certain appropriate conditions and safeguards as noted below. On the basis of the above findings of fact and all evidence presented at the public hearing i icluding, but not limited to, the Plans, Documents and testimony, the Zoning Board of Appeals concludes: 1. To allow for the addition to the house as proposed, the requested Special Permit for the extension of a nonconforming strtrcnrre, and Variances from dimensional requirements for structures in the Residential Two-Family zone is granted. 3 In consideration of the above, the Salem Board of Appeals voted, five (5) in favor (Stein, Hams, Belair, Debski and Dionne) and none (0) opposed, to grant petitioner's requests for a Special Permit and Variances subject to the following teens, conditions, and safeguards: 1. Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. 2. .All construction shall be done as per the plans and dimensions submitted to and approved bythe Building Commissioner. 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner shall obtain a building permit prior to beginning any construction. 5. Exterior finishes of the new construction shall be in harmony with the existing structure. 6. A Certificate of Inspection is to be obtained. 7. Petitioner is to obtain approval from any City Board or Commission having J urisdiction including, but not limited to the Planning Board. 8. Unless this Decision expressly provides otherwise, any zoning relief granted does not empower or authorize the Petitioner to demolish or reconstruct the structure(s) located on the subject property to an extent of more than fifty percent (50%) of its floor area or more than fifty percent (50%) of its replacement cost at the time of destruction. If the structure is demolished by any means to an extent of more than fiftypercent (50%) of its replacement cost or more than fifty percent (50%) of its floor area at the time of destruction,it shall not be reconstructed except in conformity with the provisions of the Ordinance A TRUE COPY WUES2�1 Ito,�/,�91�1 L �' �a^ Robin Stem, Chair 0TY fcum Salem Zoning Board of Appeals SALU 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 of filing of this decision in the office of the City Clerk. Pursuant to the Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk has been filed with the Essex South Registry of Deeds. RECEIVED INSPECTIONAL SERVICES John H. Carr, Jr.,Esq. 1009 AUG I I P 3: 01 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 August 11, 2009 By Hand Thomas St. Pierre,Building Inspector City of Salem 120 Washington Street, 3`d Floor Salem, MA 01970 RE: Thomas J. McKinnon et al vs. Leslie Byrne et al Dear Mr. St. Pierre: I am herewith enclosing courtesy copies of the following relative to the above-entitled action which I filed in the Essex Superior Court today: 1. Complaint Pursuant To Chapter 40A, Section 17 Appealing July 28, 2009 Decision of the Salem Board of Appeals Granting A Special Permit And Variances At 16 Saunders Street, Salem, Massachusetts; 2. Notice To Salem City Clerk Of Complaint Pursuant To Chapter 40A, Section 17 Appealing July 28, 2009 Decision of the Salem Board of Appeals Granting A Special Permit And Variances At 16 Saunders Street, Salem, Massachusetts. Would you or someone from your office kindly acknowledge receipt of the foregoing by date-stamping the enclosed copies of this cover letter, said Complaint, and said Notice. Thank you. e ours, John H. C Jr. Enc. Cc Jerald A. Parisella,Esq.—By Hand Scott M. Grover,Esq.—By Hand Mr. &Mrs. Thomas K. McKinnon,Jr.—By Hand Ms. Melanie M. McKinnon—By Hand COMMONWEALTH OF MASSACHUSETTS._ ESSEX, SS. SUPERIOR COlvV 10E l S S�Sc CIVIL AdfflbW� 7 THOMAS J. MCKINNON,JR., and ELIZABETH J. ) Zooq AUG I I P 3: 01 MCKINNON, and MELANIE M. MCKINNON, ) PLAINTIFFS ) V. ) LESLIE BYRNE, and BONNIE BELAIR, REBECCA ) CURRAN, BETH DEBSKI,RICHARD DIONNE,ANNIE ) HARRIS,ROBIN STEIN and JIMMY TSITSINOS, BEING) REGULAR and ALTERNATE MEMBERS OF THE ) ZONING BOARD OF APPEALS OF THE CITY OF ) SALEM, MASSACHUSETTS, ) DEFENDANTS ) NOTICE TO SALEM CITY CLERK OF COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17 APPEALING JULY 28,2009 DECISION OF THE SALEM BOARD OF APPEALS GRANTING A SPECIAL PERMIT AND VARIANCES AT-16 SAUNDERS STREET, SALEM,MASSACHUSETTS I,John H. Carr, Jr., attorney for the Plaintiffs in the above-entitled action, hereby give notice to the City Clerk of the City of Salem, Massachusetts that said Plaintiffs have filed a civil Complaint Pursuant To Chapter 40A, Section 17 Appealing July 28, 2009 Decision of the Salem Board of Appeals Granting A Special Permit And Variances At 16 Saunders Street, Salem, Massachusetts with the Essex Superior Court appealing the July 28,2009 Decision of the Salem Zoning Board of Appeals granting a Special Permit and Variances to Leslie Byrne, owner of 16 Saunders Street, Salem,Massachusetts 01970,which property is located in an R-2 zoning district. Said July 28,2009 Decision was filed with the office of the Salem City Clerk on July 28,2009. A copy of said Complaint filed as Essex Superior Court Civil Action No. ZOO 9 S is L on August 11, 2009 is attached hereto. Respectfully submitted, Thomas J. McKinnon,Jr., Elizabeth J. McKinnon, By their attorney, August 11,2009 John H. Carr,Jr., Esq. 9 North Street Salem,MA 01970 978-825-0060 BBO#075281 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO: ZOO? Sys THOMAS J. MCKINNON,JR., ELIZABETH J. ) MCKINNON, and MELANIE M. MCKINNON, ) PLAINTIFFS ) V. ) _ Cn LESLIE BYRNE, and BONNIE BELAIR, REBECCA ) rn CURRAN, BETH DEBSKI,RICHARD DIONNE,ANNIE ) HARRIS, ROBIN STEIN and JIMMY TSITSINOS, BEING) — z rn REGULAR and ALTERNATE MEMBERS OF THE ) — r- ZONING BOARD OF APPEALS OF THE CITY OF ) 0 mo SALEM,MASSACHUSETTS, ) DEFENDANTS ) o m J (n COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17 APPEALING JULY 28,2009 DECISION OF THE SALEM BOARD OF APPEALS GRANTING A SPECIAL PERMIT AND VARIANCES AT 16 SAUNDERS STREET,SALEM,MASSACHUSETTS This is an appeal from a Decision of the Salem,Massachusetts Zoning Board of Appeals, dated July 28, 2009, and filed with the Salem City Clerk on July 28,2009,granting Leslie Byrne a Special Permit to increase the size of a legally non-conforming structure, and Variances from front and side setback requirements to allow for the addition of a second story and attic and expansion of the footprint of the house on the property she owns located at 16 Saunders Street, Salem,Massachusetts, which property is located in an R-2 zoning district,on the grounds that said ZBA Decision was/is arbitrary,capricious,unreasonable, violated due process,exceeded the Board's authority, was based on legally and factually untenable grounds,and was wrong as a matter of law. A certified copy of said July 28, 2009 Decision is attached hereto as Exhibit A. PARTIES Plaintiffs 1. Plaintiff, Thomas J. McKinnon,Jr., owns(with his wife, Elizabeth J. McKinnon, and his daughter, Melanie M. McKinnon) and resides at 14 Saunders Street, Salem, Massachusetts 01970,which property is located within the 300 foot notice requirement of the Salem Zoning Ordinance, and directly abuts 16 Saunders Street, Salem, Massachusetts 01970 to the east of said property. 2. Plaintiff, Elizabeth J. McKinnon, owns(with her husband, Thomas J. McKinnon, Jr., and her daughter, Melanie M. McKinnon) and resides at 14 Saunders Street, Salem, Massachusetts 01970, which property is located within the 300 foot notice requirement of the Salem Zoning Ordinance,and directly abuts 16 Saunders Street, Salem, Massachusetts 01970 to the east of said property. 3. Plaintiff, Melanie M. McKinnon,owns (with her parents, Thomas J. McKinnon, Jr. and Elizabeth J. McKinnon) and resides at 14 Saunders Street, Salem,Massachusetts 01970, which property is located within the 300 foot notice requirement of the Salem Zoning Ordinance, and directly abuts 16 Saunders Street, Salem, Massachusetts 01970 to the east of said property. Defendants 4. Defendant, Leslie Byrne,who owns and resides at 16 Saunders Street, Salem, Massachusetts 01970, is the Petionner/Beneficiary of the July 28, 2009 Decision of the Salem ZBA being appealed. 5. Defendant, Bonnie Belair,whose mailing address is P.O. Box 685, Salem,Massachusetts 01970, is an alternate member of the Salem Zoning Board of Appeals(hereinafter"ZBA" or"Salem ZBA"or"the Board")who voted to grant said Special Permit and Variances at the July 15, 2009 hearing of the Salem ZBA on Ms. Byrne's Petition. (This is the only address available for Ms. Belair at the office of the Salem ZBA.) 6. Defendant, Rebecca Curran,who resides at 14 Clifton Avenue, Salem,Massachusetts 01970, is a regular member of the Salem ZBA who did not participate in the July 15, 2009 vote of the Salem ZBA on Ms. Byrne's Petition. 7. Defendant,Beth Debski, also known as Elizabeth Debski, who resides at 43 Calumet Street, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit and Variances at the July 15, 2009 hearing of the Salem ZBA on Ms. Byrne's Petition 8. Defendant,Richard Dionne, who resides at 23 Gardner Street, Salem,Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit and Variances at the July 15,2009 hearing of the Salem ZBA on Ms. Byme's Petition 9. Defendant, Annie Hams,who resides at 28 Chestnut Street, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit and Variances at the July 15,2009 hearing of the Salem ZBA on Ms. Byrne's Petition 10. Defendant, Robin Stein,who resides at 141 Fort Avenue, Salem, Massachusetts 01970, is a regular member and the chairwoman of the Salem ZBA, who voted to grant said Special Permit and Variances at the July 15, 2009 hearing of the Salem ZBA on Ms. Byrne's Petition - 2 - 11. Defendant,Jimmy Tsitsinos,also known as James Tsitsinos,who resides at 6C Wharf Street, Salem,Massachusetts 01970, is an alternate member of the Salem ZBA who did not participate in the July 15, 2009 vote of the Salem ZBA on Ms. Byrne's Petition. 12. Plaintiffs Thomas J. McKinnon, Jr., Elizabeth J. McKinnon, and Melanie M. McKinnon have standing to bring this action, as all are substantially aggrieved by the July 28, 2009 Decision of the Salem ZBA granting said Special Permit and Variances. JURISDICTION 13. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the Massachusetts General Laws. 14. This case is timely, as it has been filed within twenty(20)days from July 28, 2009, which is when the July 28, 2009 Decision of the Salem ZBA was filed with the Salem City Clerk. PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS 15. According to records maintained by the Salem Assessor's office, 16 Saunders Street is a 1 story,wood-frame, single-family dwelling which was built in"1890"and is located on a lot containing 3,820 square feet,with forty feet of frontage on Saunders Street. 16. According to a plan for 16 Saunders Street prepared by Thomas A. Appleton, dated January 1948, and recorded with the Essex South Registry of Deeds at Book 3586, Page 295, 16 Saunders Street is a nearly triangular lot whose dimensions are 44.5 feet along the front(ie. westerly) lot line along Saunders Street, 52.97 feet and 66 feet along the left (ie. northerly) side lot line, 12.5 feet along the rear(ie. easterly)lot line,and 113 feet along the right(ie. southerly) side lot line shared with the Plaintiffs' property at 14 Saunders Street, altogether comprising 3,820 square feet. 17. Also according to said plan,there is a distance of only five feet between the single-family dwelling at 16 Saunders Street and the shared side lot line with 14 Saunders Street to the south, and a distance of only five feet between the dwelling at 14 Saunders Street and said shared side lot line. 18. The single-family dwelling at 16 Saunders Street sits on a raised full basement and consists of a long rectangular block sixteen(16)feet in width by thirty-six(36)feet deep, which block is perpendicular to Saunders Street, and a rectangular wing projecting from the left(ie. northern) side of the main block, and extends slightly back from the center of same,which wing is six (6)feet wide and fifteen(15)feet deep. 19. In addition there is a raised front porch at the left front(northwest) corner of the single- story dwelling,which Ms. Byrne had built approximately 8 years ago, which porch -3 - extends from the westerly side of said wing and wraps around the left front(ie. northwest) corner of the main block all the way to the Saunders Street sidewalk. 20. Said porch is approximately 16 feet deep and has frontage on Saunders Street of twelve (12) feet,with capacity for storage underneath. 21. 16 Saunders Street is located in an R-2 zoning district. 22. Pursuant to said R-2 zoning,the minimum lot size is fifteen thousand(15,000) square feet, as compared with the 3,820 square foot lot area for 16 Saunders Street, which is only 25.46%of said minimum requirement. 23. Also pursuant to said R-2 zoning,the minimum lot frontaee is one hundred(100)feet, as compared with either forty(40) feet for 16 Saunders Street based on the Salem Assessor's records, or forty-four and one half(44.5)feet based on the 1948 plan prepared by Thomas A. Appleton, which existing frontage is only 40% or 44.5% of said minimum requirement. 24. Also pursuant to said R-2 zoning,the minimum front yard setback is fifteen(15) feet, as compared with a zero setback based on the existing front porch at 16 Saunders Street, which extends to the Saunders Street sidewalk. 25. Also pursuant to said R-2 zoning,the minimum side lot setback is ten(10) feet, as compared with five (5)feet between the existing single-family dwelling at 16 Saunders Street and the shared side lot line with 14 Saunders Street to the south. 26. Also pursuant to said R-2 zoning,the minimum lot width is one hundred(100) feet, as compared with either the 44 foot width or the 44.5 foot width along the front(ie. westerly)lot line along Saunders Street, and only 12.5 feet along the rear(ie. easterly) lot line of the 16 Saunders Street lot. 27. Also pursuant to said R-2 zoning, the minimum lot coverage is thirty-five(35 %)percent, as compared with only 17.43%coverage for the existing single-family dwelling at 16 Saunders Street. 28. There is also a single-stall garage at 16 Saunders Street, located to the left rear of the existing single-family dwelling,which would appear to violate the existing single-story 10 foot minimum side lot setback,and also the minimum distance between buildings requirement for an R-2 district of thirty (30) feet. 29. Thus, 16 Saunders Street already violates the minimum front and side yard setback requirements of an R-2 zoning district, and the existing lot does not conform to the lot area and lot width requirements of an R-2 district, and the existing garage would also appear to violate the existing side lot line setback and distance-between-building minimum requirement of an R-2 district. - 4 - 30. The petitioner, Leslie Byrne,has owned 16 Saunders Street since September 12, 1990. 31. On June 24, 2009 Ms. Byrne filed a Petition seeking a Special Permit pursuant to Sections 8-4, 8-6, and 9-4 of the Salem Zoning Ordinance, "and such other relief as the Board deems appropriate." 32. Although the 3-paragraph"Statement Of Grounds"attached to said Petition acknowledges that the proposed changes involves enlarging the footprint of what is already a nonconforming lot and nonconforming structure, Ms. Byme did not check the box on the form ZBA Petition indicating that she was also requesting Variances, and instead checked only the box indicating she was/is'seeking a Special Permit. 33. Essentially Ms. Bryne's Petition sought(a)to "square off'the northerly(ie.North River) side of the existing dwelling by extending the existing wing to the front and back of the building, (b)to extend the rear of the resulting rectangular building by six(6) feet, thereby significantly decreasing the already non-conforming seven(7) foot distance between the left rear(ie. northwest) corner at the existing dwelling and the front right(ie. southwest corner) of the garage, and(c)to add a second and attic story to the resulting 41'-10%z" by 21'-10" rectangular building,while retaining the raised wooden porch at the front of the building. 34. At its meeting on July 15, 2009 the Board of Appeals voted five(5)in favor and none (0) opposed"to grant a Special Permit under Section 5-30),Extension of Nonconformity, Section 8-4,Nonconforming Structure, and Section 8-6, Board of Appeals, Granting Special Permits, and Variances from the dimensional requirements of Section 6-4, Table L• Residential Density Regulations"of the Salem Zoning Ordinance. 35. Although Finding No. 2 of said July 28,2009 ZBA Decision recites that"space is needed to accommodate a growing family," Ms. Byrne is approximately forty(40)years old, is not married,and has no children of her own. 36. As to each of the following Counts,the Plaintiffs reaffirm,re-allege, and incorporate all of the prior allegations contained in paragraphs 1-35 inclusive above. ARGUMENT COUNTI The Special Permit was granted in violation of Article IX, Section 9-4(b) of the Salem Zoning Ordinance. 37. Article IX, Section 9-4(a)of the Salem Zoning Ordinance entitled, "Special Permits," provides the following in relevant part: In hearing and deciding applicants for special permits,the Board of Appeals...shall deny special permits when not - 5 - in harmony with the purpose and intent of this ordinance. Emphasis added. 38. Article I, Section I-1(a)of the Salem Zoning Ordinance, entitled"Purposes,"includes the following explicit Purposes of said Ordinance: "...to secure safety from fire... and other dangers,... to prevent overcrowding of land,...to conserve the value of land and buildings..." 39. The Special Permit awarded to Ms. Byrne pursuant to the July 28, 2009 Decision of the Salem ZBA is contrary to the Purposes of the Salem Zoning Ordinance, including the above explicit purposes. 40. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT II The Special Permit was granted in violation of Article V, Section 5-3(j)of the Salem Zoning Ordinance. 41. Article V, Section 5-30)of the Salem Zoning Ordinance, entitled"Extension of nonconformity,"provides the following in relevant part: Notwithstanding anything to the contrary appearing in this ordinance,the board of appeals may, in accordance with the procedures and conditions set forth in sections 8-6 and 9-4 herein,grant special permits for alterations of nonconforming structures and for...enlargement, extension or expansion of nonconforming structures... provided, however,that such... change, extension, enlargement, or expansion shall not be substantially more detrimental than the existing nonconforming use to the neighborhood...Emphasis added. 42. For the reasons set forth in the Count I above,the approved enlargement of the existing nonconforming dwelling pursuant to the July 28, 2009 Decision of the Salem ZBA is not "in accordance with the...conditions set forth in sections...9-4 herein..."and for that reason alone,the Board exceeded its authority in granting said Special Permit. 43. Moreover,without limiting the generality of the foregoing, due to the increased fire risk alone to the neighborhood, said enlargement is in fact substantially more detrimental to the neighborhood, including(and especially)to the Plaintiffs,than the prior nonconforming use was detrimental to the neighborhood. - 6 - 44. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT III The Salem Zoning Board of Appeals acted arbitrarily,capriciously, and unreasonably in approving a Special Permit and setback variances at 16 Saunders Street in its July 28,2009Decision. 45. The Board acted arbitrarily,capriciously, and unreasonably throughout its July 28, 2009 Decision, including as set forth in Counts INHI hereof. 46. Without limiting the generality of the foregoing, the Salem ZBA also acted arbitrarily, capriciously, and unreasonably in approving said Special Permit and Variance by disregarding the increased fire risk to the Plaintiffs and to the neighborhood in general, as well as the diminution in the Plaintiffs' property value,as a result of said Decision. 47. The Board also acted arbitrarily, capriciously, and unreasonably by ignoring the 30-foot- distance-between-buildings requirement of the Salem Zoning Ordinance in its July 28, 2009 Decision, and by refusing to consider other alteratives more compatible with the Salem Zoning Ordinance and the Plaintiffs' rights. 48. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances, and said July 28,2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT IV There are no special conditions and circumstances affecting the parcel which do not generally affect other land or buildings in the same district 49. The 16 Saunders Street property is a flat,nearly triangular parcel of land which is forty (40)or forty-four and one-half(44.5)feet wide along Saunders Street, approximately one hundred nineteen(119) feet deep along the left(ie. northerly) side lot line,twelve and one half(12.5) feet at the rear, and one hundred thirteen(113) feet along the right(ie. southerly) side lot line shared with the Plaintiffs' property at 14 Saunders Street. 50. There are no ledges, cliffs,ravines, swamps,marshy areas, watercourses, or other natural or topographical features that uniquely affect the land or proposed building. 51. Given that most of the land to the 16 Saunders Street lot exists to the rear of the existing single-story dwelling,there are alternative ways of expanding said dwelling more - 7 - compatible with the Salem Zoning Ordinance, which would not cause the kind of substantial harm to the Plaintiffs that said July 28, 2009 Decision does. 52. Thus, the Defendants cannot prove this variance requirement as a matter of law. 53. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances,and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT V Literal enforcement of the provisions of the Salem Zoning Ordinance does not involve legally- recognizable hardship,financial or otherwise,to the Petitioner 54. It is axiomatic under Massachusetts Law that the term"hardship"within the meaning of Chapter 40A does not include any hardship which is self-created. 55. The size and shape of the lot at 16 Saunders Street has remained the same at least since the recorded plan prepared by Thomas A. Appleton in January of 1948,which includes the period of Ms. Byme's ownership of said property,which commenced on September 12, 1990. 56. Similarly, other than with respect to the front porch which Ms. Byrne had added approximately 8 years ago,the size and shape of the existing dwelling at 16 Saunders Street, and its location on the lot,has not changed materially during Ms. Byrne's ownership of said property. 57. Although Finding No. 2 of said July 28, 2009 ZBA Decision recites that"space is needed to accommodate a growing family,"Ms. Byrne is approximately forty(40)years old, is not marred, and has no children of her own. 58. Hence, by purchasing said property, Ms. Byrne has in fact created her own hardship. 59. Thus the Defendants cannot prove this variance requirement as a matter of law. 60. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT VI The relief granted causes substantial detriment to the public good and nullifies and substantially derogates from the intent and purpose of the Salem Zoning Ordinance - 8 - 61. As stated in paragraph 38 in Count I hereof,Article I, Section 1-1(a) of the Salem Zoning Ordinance, entitled"Purposes,"includes the following explicit Purposes of said Ordinance: "...to secure safety from fire... and other dangers,... to prevent overcrowding of land....to conserve the value of land and buildings." 62. The Variances and Special Permit granted to Ms. Byrne pursuant to the July 28, 2009 Decision of the Salem ZBA are contrary to the above explicit Purposes of the Salem Zoning Ordinance, including the above explicit purposes. 63. For the reasons hereinafter set forth in Count VII hereof,the July 28, 2009 ZBA Decision also violates Article IV, Section 4-1(1) and(2) of the Salem Zoning Ordinance, entitled "Minimum regulations,uniform applicability." 64. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances, and said July 28,2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT VII The July 28,2009 ZBA Decision violates Article IV, Section 4-1(1) and (2) of the Salem Zoning Ordinance 65. The July 28,2009 ZBA Decision also violates Article IV, Section 4-1(1)and(2)of the Salem Zoning Ordinance, entitled"Minimum regulations; uniform applicability,"which provides the following in relevant part: (1) No...building or structure...shall hereafter be erected, constructed...unless in conformity with all regulations herein specified for the district in which it is located. (2) No building or other structure shall here-after be erected or altered: . . . c. To occupy a greater percentage of lot area; d. To have narrower or smaller front yards, side yards,rear yards or other open spaces; than herein specified for the district in which it is located or in any other manner contrary to the provisions of this ordinance. Emphasis added. j9 - 66. As set forth in paragraphs 22-29 inclusive hereof,the existing lot and structures at 16 Saunders Street already violate the minimum requirements of an R-2 zoning district in several material respects. 67. Accordingly, the June 28, 2009 ZBA Decision violates Article N, Section 4-1(1) and(2) of the Salem Zoning Ordinance because it allows for the erection and construction of a structure which occupies a greater percentage of the lot area than that allowed in a R-2 district, and it also creates smaller front and side yards at 16 Saunders Street than those allows in an R-2 district. 68. Because certain grandfathered buildings and lots in the neighborhood are already nonconforming,that is not a proper basis for disregarding the Salem Zoning Ordinance and expanding/exacerbating said nonconformities, especially under the present circumstances. 69. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT VIII The Plaintiffs are substantially aggrieved by the July 28,2009 ZBA Decision 70. The 2 '/2-story structure approved by the Salem ZBA in its July 28, 2009 Decision represents a substantial detriment to the Plaintiffs, including (without limitation)for the increased risk of fire, increased noise, loss of privacy, shadows, loss of view, inconvenience of maintenance, and diminution in their property values that will be inevitably caused by said structure. 71. With respect to the Plaintiffs' loss of use, shadows,and other deleterious effects of the July 28, 2009 ZBA Decision to them,it is important to point out that Ms. Byrne opposed earlier zoning relief sought by a neighboring property owner(s) of the property immediately to the left(ie. north)of her 16 Saunders Street property on the same side of the street, and only withdrew her opposition once said owner(s) altered his/their plans so as to preserve Ms. Byme's view,and allow adequate setbacks between the two properties. 72. The Plaintiffs are substantially aggrieved by the July 28, 2009'ZBA Decision. 73. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. RELIEF SOUGHT - 10 - The Plaintiffs respectfully request that this Court: a. enter a Judgment in their favor annulling in full the July 28,2009 Decision of the Salem Zoning Board of Appeals; b. award the Plaintiffs cost and reasonable attorneys fees in connection with their prosecution of this appeal; and c. grant such other relief as is just and expedient. Respectfully submitted, Thomas J. McKinnon,Jr., Elizabeth J. McKinnon, Melanie M. McKinnon, By their attorney, August 11, 2009 John H. Carr, Jr., Esq. 9 North Street Salem, MA 01970 978-825-0060 BBO#075281 - 11 - oonorrq,�o CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL 120 WASHINGTON STREET, 3RD FLOOR 1 M1 f'o SALEM, MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 �dpjMryEpoP FAX: 978-740-9846 -- KIMBERLEY DRISCOLL 1011 AUG — I A 10 MAYOR FILE ff CITY CLERK, SALEM, MASS. July 31, 2012 Decision GLy of Salem Zoning Board of Appeals Petition of LESLIE BYRNE, requesting a Special Permit under Sec. 3.3.5 of the Salem Zoning Ordinance to alter and extend a nonconforming single-family house on the property located at 16 SAUNDERS ST, Salem, MA(R2 Zoning District). A public hearing on the above Petition was opened on March 21, 2012, pursuant to Mass General Law Ch. 40A, § 11. The hearing was continued to April 18, 2012, May 16, 2012, and June 20, 2012, but was not heard those dates and no evidence was taken. The hearing was then continued to July 18, 2012 and closed on that date with the following Zoning Board of Appeals members present: Rebecca Curran, Richard Dionne, Annie Harris,Jimmy Tsitsinos and Bonnie Belair. Petitioner seeks a Special Permit pursuant to Section 3.3.5, Nonconforming Single- and Two-Family Residential Structures, of the City of Salem Zoning Ordinances. Statements of fact: 1. In a petition date-stamped March 5, 2012, petitioner Leslie Byrne requested a Special Pernut to alter and extend her nonconforming single family house with an addition of 1 112 stories. 2. The petitioner was represented by Attomey James Cipoletta at the March 21, 2012 meeting, but represented herself at the July 18, 2012 meeting. 3. At the March 21, 2012 meeting, the Board heard testimony from several members of the public who opposed the project, citing concerns about impacts to views, access to light and air, fire safety, privacy, and decreased home values. The Board also received several letters in Opposition to the project, as well as three letters of support. 4. On March 21, 2012, the Board continued the hearing to April 18, 2012, requesting that the petitioner look at revising the design to minimize the impact to abutters, particularly those at 14 Saunders Street, who would be most affected by the project. 5. The matter was not heard on April 18, 2012, but was instead continued to May 16, 2012 and then to June 20, 2012; no evidence was taken on these dates. The hearing was then continued to July 18, 2012. 6. At the July 18, 2012 meeting, the Board discussed revised plans submitted by the petitioner showing a lowered height and a dormer design that reduced the mass from the original proposal. At this hearing, the Board again heard testimony from abutters opposing the project. 7. At the July 18, 2012 meeting, Real Estate appraiser Steven G. Ozahowski, 156 Willow St., Hamilton,stated that the value of the property located at 14 Saunders Street would be decreased by the proposed addition. A shadow study and solar elevations were also submitted to show impacts to the home on 14 Saunders Street. The Board of Appeal, after careful consideration of the evidence presented at the public hearing, and after thorough review of the plans and petition submitted, makes the following findings: 1. Desirable relief may not be granted,since the proposed addition would be substantially more detrimental to the neighborhood than the existing nonconforming structure. Due to the house's close proximity to the abutter at 14 Saunders Street, the proposed addition is not appropriate for its location, would impinge on privacy, and would otherwise negatively impact abutters. On the basis of the above findings of fact and all evidence presented at the public hearing including, but not limited to, the Plans,Documents and testimony, the Zoning Board of Appeals concludes: 1. A Special Permit under Sec. Section 3.3.5, Nonconforming Single- and Two-Family Residential Structures, of the City of Salem Zoning Ordinances, is denied. In consideration of the above, the Salem Board of Appeals voted 5-0 (Currin, Harris, Dionne, Tsitsmos and Belair opposed, none in favor), to deny petitioner's request for a Special Permit. The petition is denied. Rebecca Curran, Chair Salem Board of Appeals 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 of filing of this decision in the 3 office of the City Clerk Pursuant to the Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk has been filed with the Essex South Registry of Deeds. i of Salem, 'fflassttellusetto 3 �Buurb of '�%u}1en1 Yf t is PBV2l CITY Of- `Ajq-M. MASS CL I RK'S GFFIrF DECISION ON THE PETITION OF LESLIE BYRNE FOR A VARIANCE AT [l6 SAUNDERS' STREETj(R-2) A hearing on this petition was held May 21, 1997 with the following Board Members present: Gary Barrett; Chairman, Nina Cohen, Paul Valaskagis, Richard Dionne and Albert Hill. 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 from front and side and rear setbacks to construct a deck for the property located at 16 Saunders Street. , The Variances which have 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 petitioners. 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 of 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 . There was no opposition in this matter. 2. This will allow petitioner a fuller use of the property. On the basis of the above findings of fact, and on the evidence presented at the hearing, the Zoning Board of Appeal voted unanimously, 5-0 to grant the variance requested, subject to the following conditions: 1. Petitioner shall comply with all city and state statues, ordinances, codes and regulations. 2. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. DECISION OF THE PETITION OF LESLIE BYRNE FOR A VARIANCE AT 16 SAUNDERS STREET, SALEM page two JUN tl 3. All construction shall be done as per the plan and p submitted and approved by the Zoning Enforcement Of i� K,�S�QFFICF�� 4 . Petitioner shall obtain a building permit prior to beginning any construction. 5. Exterior finishes of the new construction shall be in harmony with the existing structure. 6. A Certificate of Occupancy is to be obtained. Variances Granted May 21, 1997 Albert C. Hill, Jr. 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 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 ZONING BOARD OF APPEALS PETITION FORM �Gomuj7 CITY OF SALEM,MASSACHUSETTS ZONING BOARD OF APPEALS 2Q09 MN 21.E P (: I � t d 120 WASHINGTON STREET,31iD FLOOR SALEM,MASSACHUSETTS 01970 F11 r' 9 o; CITY CLct �<P� xsvv Danielle McKnight,Staff Planner Thomas St.Pierre,Building Inspector ��',11fNE c 978-619-5685/£.978-740-0404 t 978-619-5641/f.978-740-9846 TO THE BOARD OF APPEALS: The Undersigned represent that he/she is/are the owners of a certain parcel of land located at: Address: 16 Saunders Street Zoning District: R-2 An application is being submitted to the Board of Appeal for the following reason(s): This statement must describe what you propose to build, the dimensions,the zone property is in, and the zoning requirements. Example: I am proposing to construct a 10'x 10'one story addition to my home located at 3 Salem Lane, in the R-2 Zoning District. The Zoning Ordinance requires the minimum depth of the rear yard to be 30 feet. The current depth of my rear yard is 32 feet;the proposed addition would reduce the depth of the rear yard to 22 feet. See Statement of ('rounds a to h ci For this reason l am requesting: O Variance(s)from provisions of Section of the Zoning Ordinance,specifically from (i.e. minimum depth of rear yard). What is allowed is (ft?sq ft?stories? %?), and what I am proposing is (ft?sq ft?stories? %?). 8-4 nd 8-6 0)�ASpecial Permit under Section ofthe Zoning Ordinance inorder to increase size of a legally nonconforming structure and such other relief as the Board deems approppriate. ( )Appeal of the lleciston of the Building Inspector(described below): The Current Use of the Property Is: Are the lot dimensions included on the plan? (example: Two Family Home)Single Family eyes ( )No n/a because The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem Zoning Ordinance and allow the project to be constructed as per the plans submitted,as the enforcement of said Zoning By-Laws would involve practical difficulty or unnecessary hardship to the Undersigned and relief may be granted without substantially derogating from the intent and purpose of the Zoning Ordinance. ZONING BOARD OF APPEALS PETITION FORM The following written statement has been submitted with this application: O For all Variance requests a written Statement of Hardship demonstrating the following must be attached: a) Special conditions and circumstances that especially affect the land,building,or structure involved, generally not affecting other lands,buildings,and structures in the same district; b) Literal enforcement of the provisions of the Ordinance would involved substantial hardship to the applicant;and c) Desirable relief may be granted without substantial detriment to the public good,and without nullifying or substantially derogating from the intent of the district or the purpose of the ordinance. 04For all Special Permit requests a Statement of Grounds must be attached. An application for a special permit for a nonconforming use or structure shall include a statement demonstrating how the proposed change shall not be substantially more detrimental than the existing nonconforming use to the neighborhood in accordance with Art.V, § 5-3. Such a statement should include reference to the following criteria: a) Social,economic,or community needs served by the proposal; b) Traffic flow and safety,including parking and loading; c) Adequacy of utilities and other public services; d) Impacts on the natural environment,including drainage; e) Neighborhood character; and 0 Potential fiscal impact,including impact on City tax base and employment. Previous applications to the Board of Appeals involving this property have been submitted with this petition form. The Building Commissioner can provide documentation ofprevious applications to the petitioner or his representative. If different from petitioner: Petitioner: Leslie Byrne Property Owner: same Address: 16 Saunders Street Address: Salem, MA Telephone: (617) 392-2695 Telephone: Signator p¢f- Signature(Attached consent letter is also required) June 24, 2009 Date Date If different from petitioner: A TRUE Representative: Scott M. Grover, Esquire ATTEST Tinti, Quinn, Grover & Frey, P.C. Address: 27 Congress Street, Suite 414 Salem - MA 01970 Telep} rr�. 978 45-8065 S June 24, 2009 Date DATE SUBMITTED TO BOARD OF APPEALS: CITY CLERK This original application must be filed with the City Clerk. STATEMENT OF GROUNDS The property that is the subject of this petition is a small single story one family residence which has been owned and occupied by the petitioner for almost twenty years. The property is located in the R-2 zoning district. The lot and the structure itself are both legally non-conforming as to variety dimensional requirements of the Zoning Ordinance. The petitioner is proposing to add a second story (with an attic) to the structure and to slightly enlarge the footprint so that the residence can accommodate her growing family. Under Section 8-4 of the Ordinance, an existing non-conforming structure can only be enlarged through the issuance of a Special Permit by the Zoning Board of Appeals pursuant to Sections 8-6 and 9-4 of the Ordinance and M.G.L. c. 40A, Section 6. In this instance, the existing structure does not meet the front and side set back requirements. In addition, the existing lot does not conform to lot area and lot width requirements. The expansion of the structure will slightly increase the existing nonconformities as to front and side setbacks. The subject property is located in a densely populated urban neighborhood. Most of the structures in the zoning district are at least two stories in height , are in close proximity to one and other and many are used for multi-family purposes. In addition, the new height of the building will not exceed the height requirement of the Ordinance. Given the characteristics of the surrounding neighborhood, the proposed addition does not unreasonably increase the area of the structure, would not be detrimental to the public good and would not depart from the content of the Ordinance. The utilities and traffic will not be affected in any significant way by the expansion and there will be little or no impact on the natural environment. The addition will almost certainly increase the value of the subject property which will result in greater revenue to the city. ZONING DISTRICT — R2 REQUIRED EXISTING PROPOSED ADDITION FRONT 15 9t 9t SIDE 10 4t 4t CROSS STREET CT. REAR 30 64t 62t i i2,s t i MAP 36 LOT 78 AREA= 3820 t S.F. x/ -H 30' rearyard setback (b MAP 36 LOT 87 MAP 36 LOT 79 COMMONWEALTH OF ELIZABETH MCCAMMON MASSACHUSETTS THOMAS J. MCCAMMON, JR. GARAGE PROPSED 2ND FLOOR o PROPOSED existing PORCH 3� ( n bulkhead to remain I 14't : .;�< a .!• PROPOSED 15't % ADDITION EXISTING 1ST FL. ° PROPOSED 2ND FL. a existing steps & ATTIC N °' h patio to ne o removed 1s f PROPOSED .,. , #16 BALCONY 12't :" 4 '' o $ PROPOSED "13v ADDITION 15' frontyard setback 4, existing °i pamaina a' t 44.5't SAUNDERS STREET PLOT PLAN OF LAND 16 SAUNDERS STREET SALEM PROPERTY OF LESLIE BYRNE SCALE 1 " = 20' MAY 22, 2009 NORTH SHORE SURVEY CORP. 14 BROWN ST., SALEM, MA 978-744-4800 #3235 ONDITgq CITY OF SALEM9 MASSACHUSETTS BOARD OF APPEAL 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01 970 TELEPHONE: 978-745-9595 FAX: 978-740-9846 7001 JUL KIMBERLEY DRISCOLL '28 P 3:-4..5 MAYOR July 28, 2009 Decision City of Salem Zoning Board of Appeals Petition of LESLIE BYRNE, seeking a Special Permit in order to increase the size of a legally nonconforming structure, and Variances from front and side setback requirements,to allow for the addition of a second story(with attic) and expansion of the footprint of the house on the property located at 16 SAUNDERS STREET, Salem,MA, in the Residential Two-Family Zoning District(R-2). Petitioner seeks a Special Permit pursuant to the Salem Zoning Ordinance, 55-30), Extension of Nonconformity, 584,Nonconforming Structure, and 58-6,Board of Appeals; Granting Special Permits. Petitioner also seeks Variances pursuant to the Salem Zoning Ordinance, 564, Table I: Residential Density Regulations. Statements of fact 1. Attorney Scott Grover represented the petitioner, Leslie Byrne, at the hearing. 2. In a petition dated June 24,2009,the applicant requested a Special Permit and "such other relief as the Board deems appropriate" in order to increase the size of a legally nonconforming structure. The Building Inspector determined Variances were needed because the plans submitted with the application show an expansion of the house's footprint such that the structure would encroach on the front and side yards. 3. Plans also showed the addition of a second story. The portion of the proposed second story that did not represent any increase in the existing footprint did not require Board of Appeals relief. 4. A public hearing on the above mentioned Petition was opened on July 15, 2009, pursuant to Mass General Law Ch. 40A, 5511. The pubic hearing was closed on July 15, 2009, with the following Zoning Board of Appeals members present: Robin Stein (Chair), Richard Dionne, Beth Debski,Annie Harris,Bonnie Belair(alternate), and Jimmy Tsitsinos (alternate). 5. At the hearing, several residents voiced opposition to the project,citing concerns that the project would block water views and light, and would decrease the value of an abutting house. Ward 7 Councillor Joseph O'Keefe also spoke in opposition. A petition was submitted with 13 names of residents in opposition to the project, one 2 of whom also submitted a letter of opposition. An additional four residents submitted letters of opposition. 6. Several residents spoke in support of the petition, saying the project would enhance the streetscape and improve the neighborhood. In addition,two neighbors submitted letters to the Board in support of the project. 7. At its meeting on July 15,2009,the Board of Appeals voted five (5) in favor and none (0) opposed to grant a Special Permit under§5-30), Extension of Nonconformity, §84, Nonconforming Structure, and §8-6,Board of Appeals, Granting Special Permits, and Variances from the dimensional requirements of$6-4, Table I: Residential Density Regulations. The Board of Appeal, after careful consideration of the evidence presented at the public hearing, and after thorough review of the plans and petition submitted, makes the following findings: 1. Special conditions and circumstances exist affecting the parcel or building, which do not generally affect other land or buildings in the same district, as the property is oddly shaped: it is nearly triangular, with an angled Northwest lot line. Additionally, the house is smaller than the other houses on Saunders Street and is the only one-story house on the street. 2. Literal enforcement of the provisions of this ordinance would involve substantial hardship, financial or otherwise, to the appellant. Space is needed to accommodate a growing family, and owing to the small size of the house (smaller than others in the district) and the irregular shape of the lot, expansion of living space in accordance with zoning requirements is difficult. 3. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning ordinance. The change most detrimental to neighbors—addition of a second story—is already allowed as of right. The additional relief granted to allow expansion of the footprint is de minimus. 4. The applicant may vary the terms of the Residential Two-Family District to construct the proposed development,which is consistent with the intent and purpose of the City of Salem Zoning Ordinance. 5. In permitting such change,the Board of Appeals requires certain appropriate conditions and safeguards as noted below. On the basis of the above findings of fact and all evidence presented at the public hearing including,but not limited to,the Plans,Documents and testimony, the Zoning Board of Appeals concludes: 1. To allow for the addition to the house as proposed, the requested Special Permit for the extension of a nonconforming structure, and Variances from dimensional requirements for structures in the Residential Two-Family zone is granted. 3 In consideration of the above, the Salem Board of Appeals voted, five (5) in favor(Stein, Harris,Belair,Debski and Dionne) and none (0) opposed,to grant petitioner's requests for a Special Permit and Variances subject to the following terms, conditions, and safeguards: 1. Petitioner shall comply with all city and state statutes, ordinances,codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner. 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner shall obtain a building permit prior to beginning any construction. 5. Exterior finishes of the new construction shall be in harmony with the existing structure. 6. A Certificate of Inspection is to be obtained. 7. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to the Planning Board. 8. Unless this Decision expressly provides otherwise, any zoning relief granted does not empower or authorize the Petitioner to demolish or reconstruct the structure(s) located on the subject property to an extent of more than fifty percent (50%) of its floor area or more than fifty percent (50%) of its replacement cost at the time of destruction. If the structure is demolished by any means to an extent of more than fifty percent (50%) of its replacement cost or more than fiftypercent (50%) of its floor area at the time of destruction,it shall not be reconstructed except in confomutywith the provisions of the Ordinance Jto Rom Stem, Chair Salem Zoning Board of Appeals 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 of filing of this decision in the office of the City Clerk Pursuant to the Massachusetts General Laws Chapter 40A Section 11,the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk has been filed with the Essex South Registry of Deeds. COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT q CIVIL ACTION NO: 200 /_( 5 q5 C THOMAS J. MCKINNON, JR.,and ELIZABETH J. ) MCKINNON, and MELANIE M. MCKINNON, ) PLAINTIFFS ) n -i V. ) 2 LESLIE BYRNE, and BONNIE BELAIR, REBECCA ) CURRAN, BETH DEBSKI, RICHARD DIONNE,ANNIE ) ,r HARRIS, ROBIN STEIN and JIMMY TSITSINOS, BEING) + REGULAR and ALTERNATE MEMBERS OF THE ) ZONING BOARD OF APPEALS OF THE CITY OF ) U' SALEM, MASSACHUSETTS, ) o 0 DEFENDANTS ) NOTICE TO SALEM CITY CLERK OF COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17 APPEALING JULY 28, 2009 DECISION OF THE SALEM BOARD OF APPEALS GRANTING A SPECIAL PERMIT AND VARIANCES AT 16 SAUNDERS STREET, SALEM, MASSACHUSETTS I, John H. Carr, Jr., attorney for the Plaintiffs in the above-entitled action, hereby give notice to the City Clerk of the City of Salem, Massachusetts that said Plaintiffs have filed a civil Complaint Pursuant To Chapter 40A, Section 17 Appealing July 28, 2009 Decision of the Salem Board of Appeals Granting A Special Permit And Variances At 16 Saunders Street, Salem, Massachusetts with the Essex Superior Court appealing the July 28, 2009 Decision of the Salem Zoning Board of Appeals granting a Special Permit and Variances to Leslie Byrne, owner of 16 Saunders Street, Salem, Massachusetts 01970, which property is located in an R-2 zoning district. Said July 28, 2009 Decision was filed with the office of the Salem City Clerk on July 28,2009. A copy of said Complaint filed as Essex Superior Court Civil Action No. ZOO 1 1 SY S C on August 11, 2009 is attached hereto. Respectfully submitted, Thomas J. McKinnon, Jr., Elizabeth J. McKinnon, By their attorney, August 11, 2009 *528011 , John H. Carr, Jr., Esq. 9 North Street Salem, MA 01970 1009 AUG i I P 2: 59 Phone: 978-825-0060 Fax: 978-825-0068 r-li r fz August 11,2009 By Hand Salem City Clerk City Hall 93 Washington Street Salem, MA 01970 Re: Thomas J. McKinnon et al. v. Leslie Byrne et al. Dear Madam Clerk: Enclosed please find Notice To Salem City Clerk Of Complaint Pursuant To Chapter 40A, Section 17 Appealing July 28, 2009 Decision of the Salem Board of Appeals Granting A Special Permit And Variances At 16 Saunders Street, Salem, Massachusetts. Would you or someone from your office kindly date-stamp and file same, and also acknowledge receipt of the foregoing by date-stamping the enclosed copy of this letter and return same with our messenger. Thank you in advance for your attention to the foregoing. 1 y s, John H. Carr, Enc. cc. Jerald A. Parisella, Esq.—By Scott M. Grover, Esq.—By Hand Mr. & Mrs. Thomas J. McKinnon—By Hand Ms. Melanie M. McKinnon—By Hand COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO: THOMAS J. MCKINNON, JR., ELIZABETH J. ) MCKINNON, and MELANIE M. MCKINNON, ) PLAINTIFFS ) y V. LESLIE BYRNE, and BONNIE BELAIR,REBECCA ) SUPERIOR ��`pfi., CURRAN, BETH DEBSKI, RICHARD DIONNE,ANNIE ) FSR 6 couNYY or E HARRIS,ROBIN STEIN and JIMMY TSITSINOS, BEING) AUS 11 ��O�r REGULAR and ALTERNATE MEMBERS OF THE ) ZONING BOARD OF APPEALS OF THE CITY OF SALEM,MASSACHUSETTS, DEFENDANTS ) i COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17 � APPEALING JULY 28,2009 DECISION OF THE SALEM BOARD OF APPEALS GRANTING A SPECIAL PERMIT AND VARIAN0,ES o AT 16 SAUNDERS STREET, SALEM,MASSACHUSETTS This is an appeal from a Decision of the Salem,Massachusetts Zoning Board of Appeals, dated July 28,2009, and filed with the Salem City Clerk on July 28, 2009, granting Leslie Byrne a Special Permit to increase the size of a legally non-conforming structure, and Variances from front and side setback requirements to allow for the addition of a second story and attic and expansion of the footprint of the house on the property she owns located at 16 Saunders Street, Salem,Massachusetts, which property is located in an R-2 zoning district, on the grounds that said ZBA Decision was/is arbitrary, capricious, unreasonable,violated due process, exceeded the Board's authority, was based on legally and factually untenable grounds, and was wrong as a matter of law. A certified copy of said July 28, 2009 Decision is attached hereto as Exhibit A. PARTIES Plaintiffs 1. Plaintiff,Thomas J. McKinnon, Jr., owns (with his wife, Elizabeth J. McKinnon, and his daughter,Melanie M. McKinnon) and resides at 14 Saunders Street, Salem, Massachusetts 01970,which property is located within the 300 foot notice requirement of the Salem Zoning Ordinance, and directly abuts 16 Saunders Street, Salem, Massachusetts 01970 to the east of said property. 2. Plaintiff, Elizabeth J. McKinnon,owns (with her husband, Thomas J. McKinnon, Jr., and her daughter, Melanie M. McKinnon)and resides at 14 Saunders Street, Salem, Massachusetts 01970, which property is located within the 300 foot notice requirement of the Salem Zoning Ordinance, and directly abuts 16 Saunders Street, Salem, Massachusetts 01970 to the east of said property. 3. Plaintiff, Melanie M. McKinnon, owns(with her parents, Thomas J. McKinnon, Jr. and Elizabeth J. McKinnon)and resides at 14 Saunders Street, Salem, Massachusetts 01970, which property is located within the 300 foot notice requirement of the Salem Zoning Ordinance, and directly abuts 16 Saunders Street, Salem, Massachusetts 01970 to the cast of said property. Defendants 4. Defendant, Leslie Byrne, who owns and resides at 16 Saunders Street, Salem, Massachusetts 01970, is the Petionner/Beneficiary of the July 28, 2009 Decision of the Salem ZBA being appealed. 5. Defendant, Bonnie Belair, whose mailing address is P.O. Box 685, Salem, Massachusetts 01970, is an alternate member of the Salem Zoning Board of Appeals (hereinafter"ZBA" or"Salem ZBA"or"the Board") who voted to grant said Special Permit and Variances at the July 15, 2009 hearing of the Salem ZBA on Ms. Byrne's Petition. (This is the only address available for Ms. Belair at the office of the Salem ZBA.) 6. Defendant, Rebecca Curran, who resides at 14 Clifton Avenue, Salem,Massachusetts 01970, is a regular member of the Salem ZBA who did not participate in the July 15, 2009 vote of the Salem ZBA on Ms. Byrne's Petition. 7. Defendant, Beth Debski, also known as Elizabeth Debski, who resides at 43 Calumet Street, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit and Variances at the July 15, 2009 hearing of the Salem ZBA on Ms. Byrne's Petition 8. Defendant, Richard Dionne, who resides at 23 Gardner Street, Salem,Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit and Variances at the July 15, 2009 hearing of the Salem ZBA on Ms. Byrne's Petition 9. Defendant, Annie Harris, who resides at 28 Chestnut Street, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit and Variances at the July 15, 2009 hearing of the Salem ZBA on Ms. Byrne's Petition 10. Defendant,Robin Stein,who resides at 141 Fort Avenue, Salem, Massachusetts 01970, is a regular member and the chairwoman of the Salem ZBA, who voted to grant said Special Permit and Variances at the July 15, 2009 hearing of the Salem ZBA on Ms. Byrne's Petition - 2 - 11. Defendant,Jimmy Tsitsinos, also known as James Tsitsinos,who resides at 6C Wharf Street, Salem, Massachusetts 01970, is an alternate member of the Salem ZBA who did not participate in the July 15, 2009 vote of the Salem ZBA on Ms. Byme's Petition. 12. Plaintiffs Thomas J. McKinnon,Jr., Elizabeth J. McKinnon, and Melanie M. McKinnon have standing to bring this action, as all are substantially aggrieved by the July 28, 2009 Decision of the Salem ZBA granting said Special Permit and Variances. JURISDICTION 13. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the Massachusetts General Laws. 14. This case is timely, as it has been filed within twenty(20) days from July 28, 2009,which is when the July 28, 2009 Decision of the Salem ZBA was filed with the Salem City Clerk. PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS 15. According to records maintained by the Salem Assessor's office, 16 Saunders Street is a 1 story,wood-frame, single-family dwelling which was built in"1890"and is located on a lot containing 3,820 square feet,with forty feet of frontage on Saunders Street. 16. According to a plan for 16 Saunders Street prepared by Thomas A. Appleton, dated January 1948, and recorded with the Essex South Registry of Deeds at Book 3586, Page 295, 16 Saunders Street is a nearly triangular lot whose dimensions are 44.5 feet along the front(ie. westerly) lot line along Saunders Street, 52.97 feet and 66 feet along the left (ie. northerly) side lot line, 12.5 feet along the rear(ie. easterly) lot line, and 113 feet along the right (ie. southerly) side lot line shared with the Plaintiffs' property at 14 Saunders Street, altogether comprising 3,820 square feet. 17. Also according to said plan,there is a distance of only five feet between the single-family dwelling at 16 Saunders Street and the shared side lot line with 14 Saunders Street to the south, and a distance of only five feet between the dwelling at 14 Saunders Street and said shared side lot line. 18. The single-family dwelling at 16 Saunders Street sits on a raised full basement and consists of a long rectangular block sixteen(16)feet in width by thirty-six (36) feet deep, which block is perpendicular to Saunders Street, and a rectangular wing projecting from the left(ie. northern) side of the main block, and extends slightly back from the center of same, which wing is six(6) feet wide and fifteen(15) feet deep. 19. In addition there is a raised front porch at the left front (northwest)corner of the single- story dwelling,which Ms. Byrne had built approximately 8 years ago, which porch - 3 - extends from the westerly side of said wing and wraps around the left front(ie. northwest) corner of the main block all the way to the Saunders Street sidewalk. 20. Said porch is approximately 16 feet deep and has frontage on Saunders Street of twelve (12)feet,with capacity for storage underneath. 21. 16 Saunders Street is located in an R-2 zoning district. 22. Pursuant to said R-2 zoning,the minimum lot size is fifteen thousand(15,000) square feet, as compared with the 3,820 square foot lot area for 16 Saunders Street,which is only 25.46%of said minimum requirement. 23. Also pursuant to said R-2 zoning, the minimum lot frontage is one hundred(100) feet, as compared with either forty (40) feet for 16 Saunders Street based on the Salem Assessor's records, or forty-four and one half(44.5) feet based on the 1948 plan prepared by Thomas A. Appleton,which existing frontage is only 40% or 44.5% of said minimum requirement. 24. Also pursuant to said R-2 zoning,the minimum front yard setback is fifteen(15)feet, as compared with a zero setback based on the existing front porch at 16 Saunders Street, which extends to the Saunders Street sidewalk. 25. Also pursuant to said R-2 zoning, the minimum side lot setback is ten(10) feet, as compared with five (5) feet between the existing single-family dwelling at 16 Saunders Street and the shared side lot line with 14 Saunders Street to the south. 26. Also pursuant to said R-2 zoning,the minimum lot width is one hundred(100) feet, as compared with either the 44 foot width or the 44.5 foot width along the front(ie. westerly) lot line along Saunders Street, and only 12.5 feet along the rear(ie. easterly) lot line of the 16 Saunders Street lot. 27. Also pursuant to said R-2 zoning,the minimum lot coverage is thirty-five (35 %)percent, as compared with only 17.43%coverage for the existing single-family dwelling at 16 Saunders Street. 28. There is also a single-stall garage at 16 Saunders Street, located to the left rear of the existing single-family dwelling,which would appear to violate the existing single-story 10 foot minimum side lot setback, and also the minimum distance between buildings requirement for an R-2 district of thirty (30) feet. 29. Thus, 16 Saunders Street already violates the minimum front and side yard setback requirements of an R-2 zoning district, and the existing lot does not conform to the lot area and lot width requirements of an R-2 district, and the existing garage would also appear to violate the existing side lot line setback and distance-between-building minimum requirement of an R-2 district. -4 - 30. The petitioner, Leslie Byrne,has owned 16 Saunders Street since September 12, 1990. 31. On June 24, 2009 Ms. Byrne filed a Petition seeking a Special Permit pursuant to Sections 8-4, 8-6, and 9-4 of the Salem Zoning Ordinance, "and such other relief as the Board deems appropriate." 32. Although the 3-paragraph"Statement Of Grounds" attached to said Petition acknowledges that the proposed changes involves enlarging the footprint of what is already a nonconforming lot and nonconforming structure, Ms. Byrne did not check the box on the form ZBA Petition indicating that she was also requesting Variances, and instead checked only the box indicating she was/is seeking a Special Permit. 33. Essentially Ms. Bryne's Petition sought(a)to "square off'the northerly(ie.North River) side of the existing dwelling by extending the existing wing to the front and back of the building, (b)to extend the rear of the resulting rectangular building by six (6) feet, thereby significantly decreasing the already non-conforming seven(7) foot distance between the left rear(ie. northwest) corner at the existing dwelling and the front right(ie. southwest comer) of the garage, and(c)to add a second and attic story to the resulting 41'-10'/z" by 21'-10" rectangular building, while retaining the raised wooden porch at the front of the building. 34. At its meeting on July 15, 2009 the Board of Appeals voted five (5) in favor and none (0) opposed "to grant a Special Permit under Section 5-30), Extension of Nonconformity, Section 8-4,Nonconforming Structure, and Section 8-6,Board of Appeals, Granting Special Permits, and Variances from the dimensional requirements of Section 6-4,Table I: Residential Density Regulations"of the Salem Zoning Ordinance. 35. Although Finding No. 2 of said July 28, 2009 ZBA Decision recites that"space is needed to accommodate a growing family," Ms. Byrne is approximately forty(40)years old, is not married, and has no children of her own. 36. As to each of the following Counts, the Plaintiffs reaffirm, re-allege, and incorporate all of the prior allegations contained in paragraphs 1-35 inclusive above. ARGUMENT COUNTI The Special Permit was granted in violation of Article IX, Section 9-4(b) of the Salem Zoning Ordinance. 37. Article IX, Section 9-4(a)of the Salem Zoning Ordinance entitled, "Special Permits," provides the following in relevant part: In hearing and deciding applicants for special permits, the Board of Appeals...shall deny special permits when not - 5 - in harmony with the purpose and intent of this ordinance. Emphasis added. 38. Article I, Section 1-1(a) of the Salem Zoning Ordinance, entitled"Purposes," includes the following explicit Purposes of said Ordinance: "...to secure safety from fire... and other dangers,... to prevent overcrowding of land,...to conserve the value of land and buildings..." 39. The Special Permit awarded to Ms. Byrne pursuant to the July 28, 2009 Decision of the Salem ZBA is contrary to the Purposes of the Salem Zoning Ordinance, including the above explicit purposes. 40. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT II The Special Permit was granted in violation of Article V, Section 5-30) of the Salem Zoning Ordinance. 41. Article V, Section 5-30)of the Salem Zoning Ordinance, entitled"Extension of nonconformity,"provides the following in relevant part: Notwithstanding anything to the contrary appearing in this ordinance,the board of appeals may, in accordance with the procedures and conditions set forth in sections 8-6 and 9-4 herein, grant special permits for alterations of nonconforming structures and for...enlargement, extension or expansion of nonconforming structures... provided,however, that such... change, extension, enlargement, or expansion shall not be substantially more detrimental than the existing nonconforming use to the neighborhood...Emphasis added. 42. For the reasons set forth in the Count I above,the approved enlargement of the existing nonconforming dwelling pursuant to the July 28, 2009 Decision of the Salem ZBA is not "in accordance with the...conditions set forth in sections...9-4 herein..." and for that reason alone, the Board exceeded its authority in granting said Special Permit. 43. Moreover, without limiting the generality of the foregoing,due to the increased fire risk alone to the neighborhood, said enlargement is in fact substantially more detrimental to the neighborhood, including(and especially)to the Plaintiffs, than the prior nonconforming use was detrimental to the neighborhood. - 6 - 44. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT III The Salem Zoning Board of Appeals acted arbitrarily,capriciously, and unreasonably in approving a Special Permit and setback variances at 16 Saunders Street in its July 28,2009Decision. 45. The Board acted arbitrarily, capriciously, and unreasonably throughout its July 28, 2009 Decision, including as set forth in Counts I-VIII hereof. 46. Without limiting the generality of the foregoing, the Salem ZBA also acted arbitrarily, capriciously, and unreasonably in approving said Special Permit and Variance by disregarding the increased fire risk to the Plaintiffs and to the neighborhood in general, as well as the diminution in the Plaintiffs' property value, as a result of said Decision. 47. The Board also acted arbitrarily, capriciously, and unreasonably by ignoring the 30-foot- distance-between-buildings requirement of the Salem Zoning Ordinance in its July 28, 2009 Decision, and by refusing to consider other alternatives more compatible with the Salem Zoning Ordinance and the Plaintiffs' rights. 48. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT IV There are no special conditions and circumstances affecting the parcel which do not generally affect other land or buildings in the same district 49. The 16 Saunders Street property is a flat,nearly triangular parcel of land which is forty (40) or forty-four and one-half(44.5) feet wide along Saunders Street,approximately one hundred nineteen(119) feet deep along the left(ie. northerly) side lot line, twelve and one half(12.5)feet at the rear, and one hundred thirteen(113) feet along the right(ie. southerly) side lot line shared with the Plaintiffs' property at 14 Saunders Street. 50. There are no ledges, cliffs,ravines, swamps,marshy areas,watercourses, or other natural or topographical features that uniquely affect the land or proposed building. 51. Given that most of the land to the 16 Saunders Street lot exists to the rear of the existing single-story dwelling, there are alternative ways of expanding said dwelling more - 7 - compatible with the Salem Zoning Ordinance,which would not cause the kind of substantial harm to the Plaintiffs that said July 28, 2009 Decision does. 52. Thus, the Defendants cannot prove this variance requirement as a matter of law. 53. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT V Literal enforcement of the provisions of the Salem Zoning Ordinance does not involve legally- recognizable hardship,financial or otherwise,to the Petitioner 54. It is axiomatic under Massachusetts Law that the term"hardship"within the meaning of Chapter 40A does not include any hardship which is self-created. 55. The size and shape of the lot at 16 Saunders Street has remained the same at least since the recorded plan prepared by Thomas A. Appleton in January of 1948,which includes the period of Ms. Byrne's ownership of said property,which commenced on September 12, 1990. 56. Similarly, other than with respect to the front porch which Ms. Byrne had added approximately 8 years ago,the size and shape of the existing dwelling at 16 Saunders Street, and its location on the lot,has not changed materially during Ms. Byrne's ownership of said property. 57. Although Finding No. 2 of said July 28, 2009 ZBA Decision recites that"space is needed to accommodate a growing family,"Ms. Byrne is approximately forty (40)years old, is not married, and has no children of her own. 58. Hence, by purchasing said property, Ms. Byrne has in fact created her own hardship. 59. Thus the Defendants cannot prove this variance requirement as a matter of law. 60. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT VI The relief granted causes substantial detriment to the public good and nullifies and substantially derogates from the intent and purpose of the Salem Zoning Ordinance - 8 - 61. As stated in paragraph 38 in Count I hereof,Article I, Section 1-1(a) of the Salem Zoning Ordinance,entitled"Purposes," includes the following explicit Purposes of said Ordinance: "...to secure safety from fire... and other dangers,... to prevent overcrowding of land....to conserve the value of land and buildings." 62. The Variances and Special Permit granted to Ms. Byrne pursuant to the July 28, 2009 Decision of the Salem ZBA are contrary to the above explicit Purposes of the Salem Zoning Ordinance, including the above explicit purposes. 63. For the reasons hereinafter set forth in Count VII hereof,the July 28, 2009 ZBA Decision also violates Article IV, Section 4-1(1) and (2) of the Salem Zoning Ordinance, entitled "Minimum regulations, uniform applicability." 64. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT VII The July 28,2009 ZBA Decision violates Article IV, Section 4-1(1) and (2) of the Salem Zoning Ordinance 65. The July 28, 2009 ZBA Decision also violates Article IV, Section 4-1(1) and(2) of the Salem Zoning Ordinance, entitled "Minimum regulations; uniform applicability,"which provides the following in relevant part: (1) No...building or structure...shall hereafter be erected, constructed...unless in conformity with all regulations herein specified for the district in which it is located. (2) No building or other structure shall here-after be erected or altered: . . . c. To occupy a greater percentage of lot area; d. To have narrower or smaller front yards, side yards, rear yards or other open spaces; than herein specified for the district in which it is located or in any other manner contrary to the provisions of this ordinance. Emphasis added. - 9 - 66. As set forth in paragraphs 22-29 inclusive hereof,the existing lot and structures at 16 Saunders Street alreadv violate the minimum requirements of an R-2 zoning district in several material respects. 67. Accordingly,the June 28, 2009 ZBA Decision violates Article W, Section 4-1(1) and (2) of the Salem Zoning Ordinance because it allows for the erection and construction of a structure which occupies a greater percentage of the lot area than that allowed in a R-2 district, and it also creates smaller front and side yards at 16 Saunders Street than those allows in an R-2 district. 68. Because certain grandfathered buildings and lots in the neighborhood are already nonconforming,that is not a proper basis for disregarding the Salem Zoning Ordinance and expanding/exacerbating said nonconformities, especially under the present circumstances. 69. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. COUNT VIII The Plaintiffs are substantially aggrieved by the July 28,2009 ZBA Decision 70. The 2 '/z-story structure approved by the Salem ZBA in its July 28, 2009 Decision represents a substantial detriment to the Plaintiffs, including(without limitation) for the increased risk of fire, increased noise, loss of privacy, shadows, loss of view, inconvenience of maintenance, and diminution in their property values that will be inevitably caused by said structure. 71. With respect to the Plaintiffs' loss of use, shadows, and other deleterious effects of the July 28, 2009 ZBA Decision to them, it is important to point out that Ms. Byrne opposed earlier zoning relief sought by a neighboring property owner(s) of the property immediately to the left(ie. north)of her 16 Saunders Street property on the same side of the street, and only withdrew her opposition once said owner(s) altered his/their plans so as to preserve Ms. Byrne's view, and allow adequate setbacks between the two properties. 72. The Plaintiffs are substantially aggrieved by the July 28, 2009 ZBA Decision. 73. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit and Variances, and said July 28, 2009 Decision of the Salem ZBA should be annulled in its entirety. RELIEF SOUGHT - 10 - The Plaintiffs respectfully request that this Court: a. enter a Judgment in their favor annulling in full the July 28, 2009 Decision of the Salem Zoning Board of Appeals; b. award the Plaintiffs cost and reasonable attorneys fees in connection with their prosecution of this appeal; and c. grant such other relief as is just and expedient. Respectfully submitted, Thomas J. McKinnon, Jr., Elizabeth J. McKinnon, Melanie M. McKinnon, By their attorney, August 11, 2009 410 q. - 11 - • �`.,v°° °1T+,iol CITY OF SALEM, MASSACHUSETTS 2� BOARD OF APPEAL 120 WASHINGTON STREET. 3RD FLOOR SALEM. MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 FAX: 978-740-9846 •� KIMBERLEY DRISCOLL MAYOR July 28, 2009 Decision City of Salem Zoning Board of Appeals Petition of LESLIE BYRNE, seeking a Special Permit in order to increase the size of a legally nonconforming structure, and Variances from front and side setback requirements, to allow for the addition of a second story(with attic) and expansion of the footprint of the house on the property located at 16 SAUNDERS STREET, Salem, MA, in the Residential Two-Family Zoning District(R-2). Petitioner seeks a Special Permit pursuant to the Salem Zoning Ordinance, 55-30), Extension of Nonconformity, §8-4, Nonconforming Structure, and 58-6,Board of Appeals; Granting Special Permits. Petitioner also seeks Variances pursuant to the Salem Zoning Ordinance, §6-4, Table I: Residential Density Regulations. Statements of fact: 1. Attorney Scott Grover represented the petitioner, Leslie Byrne, at the hearing. 2. In a petition dated June 24, 2009, the applicant requested a Special Permit and "such other relief as the Board deems appropriate" in order to increase the size of a legally nonconforming structure. The Building Inspector determined Variances were needed because the plans submitted with the application show an expansion of the house's footprint such that the structure would encroach on the front and side yards. 3. Plans also showed the addition of a second story. The portion of the proposed second story that did not represent any increase in the existing footprint did not require Board of Appeals relief. 4. A public hearing on the above mentioned Petition was opened on July 15, 2CC9, pursuant to Mass General Law Ch. 40A, �§ 11. The pubic heating was closed on July 15, 2009, with the following Zoning Board of Appeals members present: Robin Stein (Chair), Richard Dionne, Beth Debski, Annie Harris, Bonnie Belair(alternate), and Jimmy Tsitsinos (alternate). 5. At the hearing, several residents voiced opposition to the project, citing concerns that the project would block water views and light, and would decrease the value of an abutturg house: Ward 7 Councillor Joseph O'Keefe also spoke in opposition. A petition was subrrritted with 13 names of residents nt opposition to the project, one of whom also submitted a letter of opposition. An additional four residents submitted letters of opposition. 6. Several residents spoke in support of the petition, saying the project would enhance the streetscape and improve the neighborhood. In addition, two neighbors submitted letters to the Board in support of the project. 7. At its meeting on July 15, 2009,the Board of Appeals voted five (5) in favor and none (0) opposed to grant a Special Permit under§5-30), Extension of Nonconformity, §8-4, Nonconforming Structure, and §8-6,Board of Appeals, Granting Special Permits, and Variances from the dimensional requirements of §6-4, Table I: Residential Density Regulations. The Board of Appeal, after careful consideration of the evidence presented at the public hearing, and after thorough review of the plans and petition submitted, makes the following findings: 1. Special conditions and circumstances exist affecting the parcel or building, which do not generally affect other land or buildings in the same district, as the property is oddly shaped: it is nearly triangular, with an angled Northwest lot line. Additionally, the house is smaller than the other houses on Saunders Street and is the only one-story house on the street. 2. Literal enforcement of the provisions of this ordinance would involve substantial hardship, financial or otherwise, to the appellant. Space is needed to accommodate a growing family, and owing to the small size of the house (smaller than others in the district) and the irregular shape of the lot, expansion of living space in accordance with zoning requirements is difficult. 3. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning ordinance, The change most detrimental to neighbors —addition of a second story—is already allowed as of right, The additional relief granted to allow expansion of the footprint is de minimus. 4. The applicant mayvarythe terms of the Residential Two-Family District to construct the proposed development, which is consistent with the intent and Purpose of the City of Salem Zoning Ordinance. 5. In permitting such change, the Board of Appeals requires certain appropriate conditions and safeguards as noted below. On the basis of the above findings of fact and all evidence presented at the public hearing including, but not limited to, the Plans, Documents and testimony, the Zoning Board of Appeals concludes: 1. To allow for the addition to the house as proposed, the requested Special Permit for the extension of a nonconform'm- structure, and Variances from dimensional requirements for structures in the Residential Two-Fannily zone is granted. 3 In consideration of the above, the Salem Board of Appeals voted, five (5) in favor(Stein, Hirris, Belair, Debski and Dionne) and none (0) opposed, to grant petitioner's requests for a Special Permit and Variances subject to the following terms, conditions, and safeguards: 1. Petitioner shall comply-with all city and state statutes, ordinances, codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner. 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner shall obtain a building permit prior to beginning any construction. 5. Exterior finishes of the new construction shall be in harmony with the existing stnicmre. 6. A Certificate of Inspection is to be obtained. 7. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to the Planning Board. 8. Unless this Decision expressly provides otherwise, any zoning relief granted does not empower or authorize the Petitioner to demolish or reconstruct the structure(s) located on the subject property to an extent of more than fifty percent (50%) of its floor area or more than fifty percent (50%) of its replacement cost at the time of destruction. If the structure is demolished by any means to an extent of more than fiftypercent (50%) of its replacement cost or more than fifty percent (50%) of its floor area at the time of destruction,it shall not be reconstructed except in conformity with the provisions of the Ordinance �d"tcKobin Stem, Chair girr rasff Salem Zoning Board of Appeals A COPY OF THIS DECISION I-LL\S 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 of filing of this decision in the office of the City Clerk. Pursuant to the Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk has been filed with the Essex South Registry of Deeds. CITY OF SALEM, MASSACHUSETTS f' BUILDING DEPARTMENT 120 WASHINGTON STREET,3" FLOOR TEL. (978) 745-9595 FAx(978) 740-9846 KIMBERLEY DRISCOLL MAYOR THOMAS ST.PIERRE DIRECTOR OF PUBLIC PROPERTY/BUILDING COMMISSIONER February 23, 2012 Leslie Byrne 16 Saunders Street Salem. Ma. 01970 Dear Ms.Byrne, I have reviewed your current plan to add a second floor to your residence. At this time, I must reject your application. It is my opinion that a Special Permit under section 3.3.5. must be granted for your project to move forward. Applications for a Special permit as well as the instructions are available at the Planning Dept counter at 120 Washington Street. If you have any other questions,please contact me directly. The St Pierre Building Commissioner/Zoning Officer cc. Danielle McKnight, Robin Stein CITY OF SALEM MASSACHUSETTS jn BUILDING DEPARTMENT ,33t 120 WASHINGTON STREET,31D FLOOR TSL. (978)745-9595 FAX(978) 740-9846 KIMBERLEY DRISCOLL MAYOR THomAs ST.PIERRE DIRECTOR OF PUBLIC PROPERTY/BUILDING COMMISSIONER February 23, 2012 Leslie Byrne 16 Saunders Street Salem. Ma. 01970 Dear Ms.Byme, I have reviewed your current plan to add a second floor to your residence. At this time, I must reject your application. It is my opinion that a Special Permit under section 3.3.5. must be granted for your project to move forward. Applications for a Special permit as well as the instructions are available at the Planning Dept counter at 120 Washington Street. If you have any other questions,please contact me directly. Tho as St.Pierr��^�/ G� Building Commissioner/Zoning Officer cc. Danielle McKnight, Robin Stein COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. C.A. No. 2012- 1 LESLIE BYRNE ] PLAINTIFF ] ] V. ] ] NOTICE OFAPPEAL REBECCA CURRAN, RICHARD DIONNE, ] ANNIE HARRIS,JIMMY TSITSINOS ] and BONNIE BELAIR as the constitute the ] SALEM ZONING BOARD OF APPEALS ] DEFENDANTS ] 1 To the Clerk of the City of Salem: Notice is hereby given in accordance with the provisions of G.L. c. 40A, § 17 that the Plaintiff, Leslie Byrne, has taken an appeal from the Decision of the Salem Zoning Board of Appeals from a denial of her application for special permit at 16 Saunders Street, Salem, Massachusetts and has filed the attached Complaint with the Essex Superior Court. By her attorney, 9 BB0# am J. Ci oletta 084260 Citizens Bank Building 385 Broadway Revere, MA 02151 Tel. 781.289.7777 Dated: August 20,2012 n H r r 1V m _ r- Zr D Q .r> CIVIL ACTION COVER SHEET SUPERIOR COURT DEPARTM DOCKET NO. =OF cca Curran, Richard Dionne, PLAINTIFFS) Leslie Byrne Haris, Jimmy Tsitsinos, and e Belair, as the constitute the M ZONING BOARD OF APPEALS Type Plaintiff's Attorney name,Address,City/State/Zip Type Defendant's Attorney Name,Address, City/State/Zip Phone Number and BBO# Phone Number(If Known) James J. Cipoletta 385 Broadway, Suite 307 Robin Stein, Office of the City Solicitor Revere, Massachusetts 02151 Salem City Hall Tel 781.289.7777 Washington Street BBO#084260 Salem, Massachusetts TYPE OF ACTION AND TRACK DESIGNATION(See reverse side) CODE NO. TYPE OF ACTION(specify) TRACK IS THIS A JURY CASE? FCO2oning Appeal G L e 40A- Fast Track (7. ] Yes (;, ] No The following is a full,itemized and detailed statement of the facts on which plaintiff relies to determine money damages. For this form,disregard double or treble damage claims; indicate single damages only. TORT CLAIMS A. Documented medical expenses to date:Attach additional sheets as necessary) 1. Total hospital expenses $ 2. Total doctor expenses $ 3. Total chiropractic expenses $ 4. Total physical therap expenses $ 5. Total other expenses �descrlbe) $ B. Documented lost wages and compensation to date Subtotal $ C. Documented property damages to date $ D. Reasonably anticipated future medical expenses $ E. Reasonably anticipated lost wages and compensation to date $ F. Other documented items of damages (describe) G. Brief description of plaintiffs injury, including nature and extent of injury(describe)$ Total$ CONTRACT CLAIMS (Attach additional sheets as necessary) Provide a detailed description of claim(s): Y _ _ _. _ TOTAL — ••.$.. PLEASE IDENTIFY,BY CASE NUMBER,NAME AND COUNTY,ANY RELATED ACTION PENDING IN THE SUPERIOR COURT DEPARTMENT Essex Superior Court C.A. No. 2009-1545-C "I hereby certify that I have complied with the requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution(SJC Rule 1:18)requiring that I pro ' y clients with information about court-connected dispute resolution services and discuss with them the advantages and in "at es of the arious metl Signature of Attorney o ecord Date: 20 August 2072 A.O.S.C.3-2007 (TO PLAINTIFF'S ATTORNEY: Please Circle Type of Action Involved: - TORT - MOTOR VEHICLE TORT - CONTRACT - EQUITABLE RELIEF - OTHER.) COMMONWEALTH OF MASS SETTS ESSEX ss. SUPERIORCOURT CIVILACTION No. 13--IS C7 0 T ..... .r. /�. ..........`J. .2. .L�.—..............................................................................Plaintifijs) T t z V. n Ah/7rc v R e r5acca C.vrra» , 2, c.han..e 1. %on c', ao AU 5,4 s $ J SUMMONS e = To the above named Defendant: You are hereby summoned and required to serve upon Qlowt"i e / w a w plaintiffs attorney, whose address is 62S J- .� an answer to the ocomplaint which is herewith served upon you,within 20 days after service of this summons upon you,exclusive of the a ° c 3 s day of service.If you fail to do so,judgment by default will be taken against you for the relief demanded in the complaint.You are also required to file your answer to the complaint in the office of the Clerk of this court at o c •��"' \�� � either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a),your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's bclaim or you will thereafter be barred from making such claim in any other action. o� 9. 2 o. 3 WITNESS, BARBARA J. ROUSE ,Esquire,at Salem,the e day of .�' , in the year of our Lord two thousand-7+-a-4&4?4AL �^ T � O z T �Q O Z A LU ? n U v O ° Clerk z NOTES: 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2.When more than one defendant is involved,the names of all defendants should appear in the caption.If a separate summons is used for each defendant,each should be addressed to the particular defendant. COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. C.A. No. 2012- ] LESLIE BYRNE ] PLAINTIFF 1 ] V. ] 1 _VERIFIED COMPLAINT REBECCA CURRAN, RICHARD DIONNE, J ANNIE HARRIS,JIMMY TSITSINOS ] and BONNIE BELAIR as the constitute the ] SALEM ZONING BOARD OF APPEALS ] DEFENDANTS ] 1 A. Preliminary Statement. This is an appeal, pursuant to the provisions of G. L. c. 40A, § 17, from a decision of the Salem Zoning Board of Appeals in denying the application of the plaintiff, Leslie Byrne, for a special permit to allow her to alter or extend her legally pre-existing nonconforming single family house pursuant to the provisions of Section 3.3.5 of the City of Salem Zoning Ordinances. Her property is a small single family dwelling in a neighborhood of mixed one and two family homes. Her property is located at 16 Saunders Street, Salem. This complaint seeks an order annulling the decision of the Zoning Board of Appeals and for an order granting all necessary and further relief applied for in connection with the proposed alteration and use of the building. B......_.P.arties• — — ------ 1.The Plaintiff,Leslie Byrne,owns the property located at 16 Saunders Street,Salem, 4- Essex County, Massachusetts. 2. Defendants Rebecca Curran,Richard Dionne,Annie Harris,Jimmy Tsitsinos,and Bonnie Belair respectively are the chair and members of the Salem Zoning Board of Appeals, all with a place of business at City Hall, Salem,Essex County,Massachusetts and with residential addresses in said Salem. C. Jurisdiction: 3. The Court has jurisdiction over this action pursuant to G. L. c. 40A, § 17. D. Facts: 4. Plaintiff owns the property at 16 Saunders Street, Salem, Massachusetts. 5.In July 2009, Plaintiff obtained a variance and a special permit from the Defendant Board of Appeals to allow an extension of her small three-room house. A copy of the Decision in the 2009 matter is attached hereto and marked Exhibit "A". 6. A direct abutter appealed the decision of the Board of Appeals to the superior court.The action is entitled Thomas McKinnon,et al.v. Salem Zoning Board ofAppeals and Leslie Byrne, civil action number 2009-1545-C and remains pending. However, shortly before the scheduled trial date the parties filed, and the Court allowed, a joint motion to remand the matter to the Board of Appeals for the purpose of allowing the Plaintiff to apply for a special permit only based upon a different plan. The Court, Cornetta J., maintained jurisdiction over the case. A status conference_is_scheduled for.September-6,20-1.2. ---- 7. In the interim, the Plaintiff prepared a plan showing an alteration of her house to -2- a lesser degree than that allowed by the same Board of Appeals in 2009 . 8. On or about March 5, 2012, the Plaintiff filed with the Board of Appeals a formal application and plan seeking a special permit to alter or extend her one family house which is a legally existing nonconforming structure.A copy of the application is attached hereto and marked as Exhibit `B". 9. On March 21, 2012, after due notice and legal advertising, the Board of Appeals commenced a public hearing on the Plaintiff s application for special permit at which time the Plaintiff presented her case in support of her application for special permit. The plans submitted to the Board of Appeals represented a small, less dense project than allowed by the Board in 2009. 10. At the hearing, members of the Board of Appeals proffered several suggestions to the Plaintiff about how she may design the house in a fashion that would even further reduce its size and potential impact upon the abutter McKinnon.The strongest suggestion by the Board was to amend the plans to show a lower roof line and the inclusion of dormers. 11. The abutter McKinnon has a two family house consisting of three full stories which as testified to at the hearing by the Salem Building Inspector is in violation of the Salem Zoning Ordinance although it was enlarged after the issuance of a building permit. 12. Also during the hearing the Board of Appeals took testimony from several individuals who do not have standing,..are.not_parties_m-.interest;and-do-not-live-in-the---- neighborhood where the Plaintiffs house is located. -3- 13. The Board of Appeals also received evidence from politicians who urged denial of the application and who expressed support of the abutter McKinnon. 14. At the end of the evidence the hearing was continued so as to allow the Plaintiff to submit a plan more in the style of that suggested by the Board. 15. Subsequently, the Plaintiff submitted a revised plan to the Board which plan illustrated a smaller house with a lower roof line and dormers as suggested by the Board at its March 2012 hearing. A copy is hereto attached as Exhibit "C". 16. On July 18, 2012, the Board of Appeals reconvened the public hearing and took up the matter of the new plan submitted by the Plaintiff. It also took incompetent evidence from a real estate appraiser who commented on the impact of views and shadows on the McKinnon property. 17. At the conclusion of the July 18'hearing the Board of Appeals voted to deny the application for special permit, stating that the "Desired relief may not be granted, since the proposed addition would be substantially more detrimental to the neighborhood than the existing nonconforming structure. Due to the house's close proximity to the abutter at 14 Saunders Street[McKinnon],the proposed addition is not appropriate for its location,would impinge on privacy, and would otherwise negatively impact abutters." 18. On August 1, 2012, the Decision (dated July 31, 2012) was filed with the Clerk of the Cityof Salem_A.copy-.of_the.Decision-is-hereto-attached•and-marked•Exhibit"E':~--~--,— 19. The plaintiff Leslie Byrne is a party aggrieved within the meaning of G.L. c.40A, -4- § 17 by the decision of the Salem Board of Appeals. E. Claims: 20. The plaintiff is entitled to a special permit to modify the existing building. 21. The decision of the Board of Appeals exceeds it's the authority, is arbitrary, capricious, an abuse of discretion, is improper and unlawful in the following respects: (a) The Board of Appeals denied plaintiff's application despite the fact that she met all the conditions precedent to the issuance of the special permit. (b) The Board of Appeals failed to find facts sufficient to deny the special permit. (c) The Board of Appeals failed to make conclusions of law sufficient to support the denial of the special permit. (d)The Board of Appeals applied an improper legal standard in determining whether the special permit s should be granted; (e) The decision of the Board of Appeals in denying the special permit was made on completely untenable legal grounds. 69 The decision of the Board of Appeals was made upon considerations totally unrelated to any genuine zoning or public safety concerns. (g)The conduct of the public hearing by the Board of Appeals was unlawful,improper, not in compliance with administrative laws and regulations, and otherwise contrary to law. (h) The decision of the Board of Appeals_was-inappropriatelybased-on•issues-not -- properly within its consideration,was subject to improper influence, and not upon legitimate -5- grounds within the Salem Zoning Ordinance or the Massachusetts Zoning Act. WHEREFORE: Plaintiff Leslie Byrne respectfully requests the Honorable Court: (1) Issue an order annulling the decision of the Salem Zoning Board of Appeals filed with the City Clerk on August 1, 2012; (2) Issue an order that the Salem Zoning Board of Appeals is to directed to grant the special permits requested by the plaintiff; and, (3) Enter such other and further orders as it deems appropriate. Respectfully submitted, Leslie Byrne By he f ttorney, 0 aures J. Cipoletta BBO# 084260 Citizens Bank Building 385 Broadway, Suite 307 Revere, MA 02151 Tel. 781.289.7777 Fax 781.289.9468 Dated: August 20, 2012 VERIFICATION I, Leslie Byrne, plaintiff herein, do hereby swear that the facts alleged in this Complaint are true to the best of my knowledge and belief. —_.Leslie Byrne_..... -6- EXHIBIT A ry CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL a A' 130 WASHINGTON STREET. 3RD FLOOR SALEM. MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 FA x: 978.740-9846 ?PLO? PL'n Ir it KIMBERLEY DRISCOLL I ? `-L 28 P 3� S MAYOR July28,2009 Decision City of Salem Zoning Board of Appeals Petition of LESLIE BYRNE,seeking a Special Permit in order to increase the size of a legally nonconforming structure,and Variances from front and side setback requirements,to allow for the addition of a second story(with attic) and expansion of the footprint of the house on the property located at 16 SAUNDERS STREET, Salem,MA, in the Residential Two-Family Zoning District(R-2). Petitioner seeks a Special Permit pursuant to the Salem Zoning Ordinance,§5-3@, Extension of Nonconfomuty,§8-4,Nonconforming Structure,and§8-6,Board of Appeals; Granting Special Permits. Petitioner also seeks Variances pursuant to the Salem Zoning Ordinance,56-4,Table I: Residential Density Regulations. Statements of fact: 1. Attorney Scott Grover represented the petitioner,Leslie Byrne,;It the hearing. 2. In a petition dated June 24,2009,the applicant requested a Special Permit and"such other relief as the Board deems appropriate" in order to increase the size of a legally nonconforming structure. The Building Inspector determined Variances were needed because the plans submitted with the application show an expansion of the house's footprint such that the structure would encroach on the front and side yards. 3. Plans also showed the addition of a second story. The portion of the proposed second story that did not represent any increase in the existing footprint did not require Board of Appeals relief. 4. A public hearing on the above mentioned Petition was opened tin Judy 15,2009, pursuant to Mass General Law Ch.40A,§§ 11. The pubic hearing was closed on July 15,2009,with the following Zoning Board of Appeals members present: Robin Stein (Chair),Richard Dionne,Beth Debski,Annie Harris, Bormie Belair(alternate), 5. At the hearing,several residents voiced opposition to the project,citing concerns that the project would block water views and light,and would decrease the value of an abutting house. Ward 7 Councillor Joseph O Keefe also spoke in opposition. A petition was submitted with 13 names of residents in opposition to the project,one Exhibit A 2 of whom also submitted a letter of opposition. An additional four residents submitted letters of opposition. 6. Several residents spoke in support of the petition,saying the project would enhance the streetscape and improve the neighborhood. In addition, two neighbors submitted letters to the Board in support of the project. 7. At its meeting on July 15, 2009,the Board of Appeals voted five (5) in favor and none (0) opposed to grant a Special Permit under§5-30),Extension of Nonconformity, §8-4,Nonconforming Structure,and 58-6,Board of Appeals, Granting Special Permits,and Variances from the dimensional requirements of§6-4, Table I:Residential Density Regulations. The Board of Appeal,after careful consideration of the evidence presented at the public hearing,and after thorough review of the plans and petition submitted,snakes the following findings: 1. Special conditions and circumstances exist affecting the parcel or building,which do not generally affect other land or buildings in the same district,as the property is oddly shaped: it is nearly triangular,with an angled Northwest lot line. Additionally, the house is smaller than the other houses on Saunders Street and is the only one-story house on the street. 2. Literal enforcement of the provisions of this ordinance would involve substantial hardship, financial or otherwise,to the appellant. Space is needed to accommodate a growing family,and owing to the small size of the house(smaller than others in the district) and the irregular shape of the lot, expansion of living space in accordance with zoning requirements is difficult. 3. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning ordinance. The change most detrimental to neighbors—addition of a second story— is already allowed as of right. The additional relief granted to allow expansion of the footprint is de minimus. 4. The applicant mayvarythe terms of the Residential Two-Family District to construct the proposed development,which is consistent with the intent and purpose of the Crry of Salem Zoning Ordinance. 5. In permitting such change,the Board of Appeals requires certain appropriate conditions and safeguards as noted below. Cfrr the basis of[fie above firi"dmgs of act and all evi'ed nce presented at the public hearing T including, but not limited to, the Plans, Documents and testimony, the Zoning Board of Appeals concludes: 1. To allow for the addition to the house as proposed, the requested Special Permit for the extension of a nonconforming structure,and Variances from dimensional requirements for structures in the Residential Two-Family zone i%granted. 3 In consideration of the above, the Salem Board of Appeals voted, five (5) in favor(Stent, Hams'Belau,Debskt and Dionne) Special Permit and and none (0) opposed,to grant petitioner's requests for a Variances subject to the following terms,conditions,and safeguards: I. Petitioner shall comply with all ciryand state statutes,o regulations. rdinances,codes and 2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner. 3. All requirements of the Salem Fire Department relative to smoke and rim safety shall be strictly adhered to. 4. Petitioner shall obtain a building permit prior to beginning any consuuction. 5. Exterior finishes of the new construction shall be in harmony with the� g structure. 6. A Certificate of Inspection is to be obtained. 7. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including,but not limited to the Planning Board. 8. Unless this Decision expresslyprovides otherwise,any zoning relief granted does not empower or authorize the Petitioner to demolish or reconstruct the strvcture(s) located on the subject property to an extent of more than fifty percent(50%) of its floor area or more than fifty percent(50%)of its replacement cost at the time of destruction.If the structure is demolished by any means to an extent of more than fiftypercent(50%) of its replacement cost or more than fifty percent(50%)of its floor area at the time of destruction,it shall not be reconstructed except in conformitywith the provisions of the Ordinance i TRUE COPY ATzJEST CJ�o (Pl L.ERK din ate` em,Unvr Salem Zoning Board of Appeals A COPY OF THIS DECISION HAS BEENFILED WITH THE pLANMNG BOARD -'kM THE CITY CLERK Appealfrom this decision, if any,shall be made pursuant to Section 17 of the Massachusetts ^� General Laws Chapter 40A, and shall be filed within 20 days of filing of this decision in the office of the City Clerk Pursuant to the Massachusetts General Laws Chapter 40A,Section 11,the Variance or Special Permit grunted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk has been filed with the Essex South Registry of Deeds. EXHIBIT B ZONING BOARD OF APPEALS PE=ON FORM fcoNnrrlt CM' OFSALEM, MASSACHUSETi'S ZONING BOARD OF APPEALS t20lr'ASFIINGTON SIXEET,3mo FLOOR B S.V.F.Jt,\LiSSACF[USE"11'S01970 0 q Thomas St. Pierre,Director of Inspectional Services �MINB� 1.978-619-5641/f 978-740-9846 Danielle McKnight,Staff Planner TO THE BOARD OF APPEALS: t.978-619-5685/f.978-740-0404 The Undersigned represent that he/she is/are the owners of a certain parcel of land located at: Address:,& S14"#IJL T S„) m W Zoning District:_R 'A An application is being submitted to the Board of Appeal for the following reason(s): This statement must describe what you propose to build, the dimensions, the zone property is in.and the zoning requirements. E.rantole., /am proposing to construct a l0'x 10'one story addition to my home located at 3 Salem Lane. in the R-2 Zoning District The Zoning Ordinance requires the minimum depth of the rear yard to be 30 feet, The current depth of my rear yard is 32 feet:the proposed addition would reduce the depth of the rear yard to 22 feet. I am seeking a special permit to build a 2nd floor addition to my 660 sq, ft. single bedroom house which abuts the location of the former Salem Shoe Factory and is in an R-2 zone. 1 will be working within the footprint of the existing building and the structure in total will not exceed 2%stories(35 ft.). This house is tiny and out of scale and character with the neighborhood. This expansion will help bring the house in harmony with the character, integrity, composition and aesthetic nature of the neighborhood and will not be more detrimental to the neighborhood than the existing nonconforming structure as most of the other buildings in the neighborhood and on the street in proximity to my house are 2 %,stories and higher. For this reason I am requesting: O Variance(s) from provisions of Section of the Zoning Ordinance.specifically from (i.e. minimum depth of rear yard). What is allowed is (ft?sq ft?stories? °b?), and what I am proposing is , ,(ft. sq ft. sanies.? %?). M/A Special Permit under SectionA.3.5 of the Zoning Ordinance in order to X11,er c..r.] Vigo(- ( )Appeal of the Decision of the Building Inspector(described below): The Current Use of the Property is: Are the lot dimensions included on the plan? (example: Two Family Home)S �s e VfYes ( )No n/a because The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem Zoning Ordinance and allow the project to be constructed as per the plans submitted,as the enforcement of said Zoning By-Laws would involve practical difficulty or unnecessary hardship to the Undersigned and relief may be granted without.substantially derogating from the intent and purpose of the Zoning Ordinance. Exhibit B ZONING BOARD OF APPEALS The following written statement has been submitted with this application: PETITION FORM ( )For all Variance requests a written Statement of Hardship demonstrating the following must be attached: a) Special conditions and circumstances that especially affect the land,building,or structure involved, generally not affecting other lands. buildings,and structures in the same district; b) Literal enforcement of the provisions of the Ordinance would involved substantial hardship to the applicant;and c) Desirable relief may be granted without substantial detriment to the public good,and without nullifying or l substantially derogating from the intent of the district or the purpose of the ordinance. (✓7 I'nr all Spcti it Permit 1 cquesl, a Statement of Cruund5 mus[ bt attaclw 1. An applitatiun tut a,ipacial pnrmil for a nonconforming use or structure shall include a statement demonstrating how the proposed change shall not be substantially more detrimental than the existing nonconforming use to the neighborhood in accordance with Art. V, §5-3. Such a statement should include reference to the following criteria: a) Social,economic,or community needs served by the proposal: b) Traffic Flow and safety, including parking and loading; c) Adequacy of utilities and other public services; d) Impacts on the natural environment,including drainage; e) Neighborhood character;and f) Potential fiscal impact, including impact on City tax base and employment Previous applications to the Board of Appeals involving this property have been submitted with this petition form. The Building Commissioner can provide documentation of previous applications to the petitioner or his representative. If different from petitioner: Petitioner: �i� A. ,��rrlC Property Owner: Address:-& S�»-1 ata gf Address: Tele hone: Y 2 gg- 82Y-/,a-0,0 Telephone: J6/ n .e ignature Signature(Attached consent letter is also acceptable) .Z 8 013, Date Date If different from petitioner. A TRUE ATTEST Representative: Address: Telephone; Signature __.._.Date �_.. DATE SUBMITTED TO BOARD OF APPEALS: CITY CLERK This original application must be filed with the Citv Clerk. �.� M Sw - -- - ---_ _ ,_ �: _ Illlilllllllfl III ... ... _ ... ... — '.: ::: = PROPOSED FRONT ELEVA71ON PROPOSED LEFT ELEVATION I' Do a CD AM Sm-ft" - - - - --- ... -,... ►ILII `_ -—= SSUE DATE:. I .. .. JOB NMBER: - �IIIII�nIIIn��III-I =n _� � Rmsom Do mom DRAw By. ms SCA�: AS MMD _ ALL: 1118 PROPOSED _ � � -------''-' ----- ZONING DISTRICT R2 PROPOSED ON'N G D'STRICT R2 � � SIDE 10 4± 4± CROSS STRIZET CT. - R E FAR 30 �,5 4+ 6 2+ '*/ Ap LOT 78 AREA MAP .56 51 MAP 36' W7 19 -ell bi ION ADOT TION em ist; SAUNDERS STREET PLOT PLAN OF I-AND 16 SAUNDERS STREET PROPERTY OF LESLIE BYRNE NORTH SHORE SURVEY Cc)R'� 14 PROWN ST., SALEM, VA C rry OF SALEM = � , MASSACHUSETTS B UILDI NG DE PARTME NT 120 WASHNGTON STREET 3u'FLOOR TEL.(978)745-9595 KIMBERLEY DRISCOLL FAX(978)740-9846 MAYOR THOMAS ST.PIERRE DIRECTOR OF PUBLIC PROPERTY/BUILDING COMMISSIONER February 23, 2012 Leslie Byme 16 Saunders Street Salem. Ma. 01970 Dear Ms.Byme, 1 have reviewed your current plan to add a second floor to your residence. At this time, I must reject your application. It is my opinion that a Special Permit under section 3.3.5. must be granted for your Project to move forward. Applications for a Special permit as well as the instructions are available at the Planning Dept counter at 120 Washington Street. If you have any other questions, please contact me directly. Thoma lTierree99 /� Building Commissioner/Zoning Officer cc. Danielle McKnight, Robin Stein EXHIBIT C . __ _ -..---. • -�u..� 1uI. VV MY I tll Post-W Fax NOW 7(571 °"` 7 ($ val'•� .' To ^ From c.,:o41r, To: Salem Zoning Board of Appeals FIIM II -I From: Leslie Byrne Date: July 18, 2012 Re: Petition/Application to Build a 2nd Floor Addition at 16 Saunders Street, Salem, MA I am asking the board to grant to me a Special Permit to build a 2"d floor addition to my 660 sq. ft single bedroom house which abuts the location of the former Salem Shoe Factory and is in an R-2 zone. I will be working within the allowable extended footprint of the existing building and the structure in total will not exceed 2'/ stories or 35 feet in height. In July of 2009 the Zoning Board of Appeals unanimously granted to me a Variance allowing me to extend 6 feet to the rear of my property and an addition of a 2"° story to 34 '/z feet in height. At the March 2012 meeting, I petitioned a Special Permit for a story floor and presented a revised plan eliminating the 6-foot rear expansion only. The Board respectfully requested I consider a height reduction and a redesign with dormers. At considerable financial cost, I have worked with my architect and have satisfied the Board's request for a professional redesign with the requested height reduction and the addition of dormers. Since the time span from my original Variance application in 2009, many positive upgrades and improvements have been accomplished to Saunders St. and its surrounding neighborhoods. Many properties in the surrounding Bridge St. neighborhoods have been or are in the process of being updated, upgraded, renovated, remodeled or expanded. Those being sold all boast of the surrounding area's positive amenities such as proximity to the commuter rail, bike path, historical neighborhood attributes, closeness to town and its offerings. The expansion of a 2"d floor onto my property will help bring my house into harmony with the character, composition, integrity and aesthetic nature of the neighborhood; will help ad value to the neighborhood and will not be more detrimental to the neighborhood than the existing nonconforming structure as most of the other structures in the neighborhood and surrounding streets in proximity to my house are a minimum of two stories and higher. I am requesting the Board grant and approve the Special Permit I am seeking. Thank you, Exhibit C I r Specifically in response to spoken threats and concerns regarding my proposed 21d floor addition to 16 Saunders > Street: Regarding the fire threat issue: Salem is an old, historical city. Much of its city charm focuses on and revolves around the character of its ilder neighborhoods. Saunders St. is located in one of those older neighborhoods where houses are already infiery close Proximity to each other. The new proposed addition will be built using state-of-the art material and fire reta'[dant products which are far superior in safety, energy use, and integrity and will not be more detrimental to theI neighborhood than the existing nonconforming structure and/or other surrounding structures in the neighb Irhood (see supporting pictures). Regarding the new addition size and volume threat issues: The new addition will not be more detrimental to the neighborhood and will be within the same character and scale as many of the other single-family structures located in this R2 zoned neighborhood and will not be more dCtrimental to the neighborhood than the existing nonconforming structure and/or other structures in the neighborhoodl(see supporting pictures). Regarding shadowing. loss of air, view. andvroperty value threats: Re. 14 Saunders St_ specifically, the proposed addition will not block air flour and existing unobstructed vies from front of house, the back deck, some 21d floor windows and its illegal. nonconforming 311� floor dormer additioFn_ My new addition will not be more detrimental to the neighborhood than the existing nonconforming structure anid/or other structures in the neighborhood. However, l am concerned that 14 Saunders St. continues to be in dishpair, neglect and its non-conforming 3"floor dormer makes it out of character to the neighborhood, thus possibly/ affecting the current value of my property and those in the neighborhood (see the attached). I would like to respectfully request that the Board review the attached which is in support of the above statements regarding 16 Saunders Street and reflects the character and integrity of the R2 zoned neighborhood surrounding Saunders St. which consists of many two-story and higher nonconforming structures built in close proximity4o each other. k(I({ f t t p Air sJ s i r', yt i 1G••(��yy I � u ✓f tf' r- e yf, •i as' t _ All i r f �.,I, BJ AFT Z rL y I a 3 �. .-mss�:.} �-a ,y:� �•...,rm. r� {1/y °, r��uy�°-� •' Yf"�.^�. S"�r•o�„ �1 � !7�`yp_ - r�cs°.�: � r :��x�,rt Q Proposed 2"3 floor additio rf elevations and design to 16 Saunders St- in respect to the character and design of the neighborhood, T ELZ 'TI UT C If to its EE Im T %E: ?, ELE - --- ------ ---- -- -- - - LLEYU)S r FF lY } hV/4 ! J` Owl f as -.. h l � i /l _ Y ' � :�',w✓'{ ,j,.. IUB _:Uz . .. _ ., 2'." Q[y Y ^"' kms �. y 'YY' �l -✓ Q- H 6F y F - 1_ _ 1 PFfi - ¢+ IN. z. 1 I � Gam- �� �.fi . -/ s ./ • > > — f �' R � .•• f p. � �1 � + - Kms' r� " + y k r `. . Back right of my garage. -ze9; a AL �v 1u.�Y - y - ��' Back of new house at_98 Saunders. s - P �L ol r�r f s� 1 � A 16 Saunders St. �. garage r F These are just a few examples of the many pictures I have taken over a fcur-year period of time during o unny and cloudy weather showing all shades (even street-facing) down preventing sunlight, air, views. etc. In addition, shades and/or windows on the 131 floor are consistently not open in any room at any time (see M. McKinnon comments from past relative ZSA meeting re. lack of light, air and shadows). fi rs fi 1 ; �N-!Y L� .4 �,:Y: �T4u_ ''y"'' A4"e�lY.r l�+v++^.+3'.•1"�rrti S l �^'MTKaS�+p Yyy f t;`� c rah+`-• Y( = l 9 4fi 1 y i k i i a My neighbor has concerns for the negative impact to his property values regarding the 2"d floor I an seeking to construct. Pictures of 14 Saunders on the following pages show a number of issues possibly affecting my curreinft property values if I were to sell this property and also possible health violations: lack of upkeep, lack of maintehance, lack of repair to extensive termite damage- health hazards regarding an open barrel full of stagnant v, ter kept there year after year creating a prime mosquito breeding area: blue tape on side of building (for 3+ yd'ars) viewed directly from my property and clearly from the bypass road creating an eyesore to the neighborhood and the entrance corridor into the city. i .. 9 -{ I i�. 6 `t� • Al ' F rqk ✓ �G "s�i h ��ytgr � h - x,-i Z�ps" -t.> 1 '" s �. '�`� w`r' � >E 4�� c ✓. ��ti��v� �3C 2�3 u.���r4�i-+�G� �,a�c�r'Is��i'1° � rr, 1 '� �- ..max _ � ti� 34 J > �x ��•�' � m ��'Y+ o� a. r `� $ �'�-; EIywE �y,-5 � - Y �.+ S� rZ r �"^� e<r.4� � �\��L����w �"�✓�i'4 �.L�Y�s'�i' .<� E r r'. c'w..�.�4� J�.,..,Y� 4 � t ���X_ �F"' r� "mss � c •- f `>�� 34•r+y,�}! 'J J" r J - s rt�'-»ra�^T'�'m^�y � - � I _' - X�'� 4 J �e13' S 1 i �?yn t OM Are J��- 1 +n Y �tl OWJ` y� �,As irC a z y � arq- r. ' 1 1 1 a )'i✓P i � � ry o �� ar 1 � w , J r a r jz 71�/GQ/Y^t P��y dnt�l Jr e , YYe f h ) In Oil v A4 ZIA, r f ` Z�r711111igp , 1 y 71F jr4�KUpI r ;, in ,..Sh tufii f T d 6 W; 4._1:x:. f Please note. in 1977 when the McKinnon's purchased their property at 14 Saunders on 1/1/1977 for $33.000 (per city public records), the Property did not have a river view as it did not exist at the time of purchase (notice the still existing fence. hydrant and utilitylpole at the end of my property/driveway as locators reference markers). Therefore, the property most likely was NOT purchased for the view also the non- conforming 3,J floor dormer addition did not exist as it was added later. This 3-story shoe factory existed at the end of Saunders St. as#24 up until 1985 when it was then demolished. The propert� owners (2 brothers), attempting to regain a profit, were granted an ''open" Variance to construct a 2 Y2-story, 60 unit condo complex on this entire site (Kevin Harvey was Ward Councilor at that time). When the housing market crashed and the Variance expired, this vacant p{operty was then targeted for several other various developments. "'•`<..rd-till's st;ze;,;eu ccrrisstcif '^--- --I- D—'--rf Record Card 5a em: NIA General Property oata - LaCB "'�n'S arm• k]fa4(.F'�hJ•_s P. - �. � •. SQ.$!Fr f .[i _ i 4t_551_1. fa...... �.£JY� MCR SC P sel1AU v.c,. lVas. Lry3 p 'ryY` 14" cam A ."ley r'a 47 Lptw Ala. 1•'...• £ � £ Jree2rs.ry5J • Came r<r- nt Prapeny Assessment. .. j••YN.e Unnry.:a»4 vA, a �:.�.. an o-x.e<a ta:D ca..r r•ii Lr.�r3Netu.Ht ..:-. .`�" . . €� • - t3uiiding oescfiplion j ,.. -�— Tu q W. fl.J,•r rAr'Fxtt i/;:O-Rfrurr I hc.ri i.p I,,,—_< •1'6+' ecvxicc'^- ]rcA(�1 a za ru Pix nc atyA _r•__ �INSYii[lAl �• -rrf.. . fes• a tt• zY.rs.; 4�-....-: s ..Uarirz _•_ •.�'•• _.___ ^_- 8.r35p L.nU:az a.nM+ S:crq vn,: ' "r✓sg r.�Cf _ - ...;efiec, :i• fzririar v:a zaenc xe ps arrow.__ '^am;J•rJls•;p;•f:: arr: � J>arnc.: _ ama. f.'i_�DaxFa: .. FD•fA Grbf .. .._ legal Deser 1ptl on Narrative Oescnpt�o nO f Pro - ':F•'+,m .ei r:':.rvn.ni 'f-a!(J-s rg.Nia pertp _ ...-__ ••LAf '_......�. !P•`c aar c.B.cr^r Yp n'� 'Ar.1Yu'.4 . ..r:.a s:rnr lJ.u:•..,•Yf..:r..y " - - .91:21• t f r:D-fa:..:xLsn,i'.SUC.a 3mMscnr: r --. r mag _ _ i V EXHIBIT D � RO Cin" ()li SALEM, KkSSI CHUSETTS BOARD OF AITEAL A '`hrMrnJt I.n t\} nr•.e n�ti.rr7rr ' �.:;rr •r..ti�:.Vrna rr.UIV"o I'I r r.:0'Y.'!i 6171 � I•n. a'X.'dr'7&IL kinmiu.r v I rrsor�n i \Item Notice of Decisions At a meeting of the City of Salem Zoning Board of Appeals held an Wednesday, July 18, 2012 at 6:30 p.m, at 120 Washington St., Salem, MA, the Zoning Board of Appeals voted on the following items: Petition of LESLIE BYRNE,requesting a Special Permit under Sec. 3.3.5 of the Salem Zoning Ordinance to alter and extend a nonconforming single-family house on the property located at 16 SAUNDERS ST, (R2 Zoning District). Decision:Denied Filed with the City Clerk on 8/1/12 Petition of KATHERINE AND JOHN MACKAY requesting a Special Permit under Sec. 3.3.5 in order to alter and expand a nonconforming front porch and construct a 19'x20'addition on the single-family home located at 96 COLUMBUS AVE (R-1 Zoning District), Decision:Granted Filed with the City Clerk on 8/1/12 Petition of DAVID CUTLER requesting a Special Permit under Sec. 3.3.5 in order to reconstruct a nonconforming single- family house on the property located at 95 MASON ST(R•2 Zoning District). Decision:Granted Filed with the City Clerk on 8/1/12 chis notice is being sent in compliance with the Massachusetts General Lows, Chapter 40A, Sections 9& 15 and does not require action by the recipient. Appeals, if any, shall be made pursuant to Chapter 40A, Section 17, and sholl be filed within 20 days from the date which the decision was filed with the City Clerk. Exhibit D VP- ,AL LM, MASSACHUSETTS 90ARD OF APPEAL 1 20 'NASHJNG rON S rREE T 3R0 FI-obP W�j SALEM, MASSACHUSETrs 01970 TELEPHONE 97&7459595 FA;{, 978.740-9845 KIM8ERLEY DRISCOLL MAYOR VV Aura�lLL f - ' A 0 ' CITY CLE,4N�SArLEM, MASS July ti 1, 2012 !)rsjsir�n (ity of S,tivtn Zoning Board of Appeals Petition of LESLIE BYRNE, requesting a Special permit under5cc. 3.3,5 of the Salem Zoning Ordinance to alterand extend a nonconfonning single-family house on the property located at 16 SAUNDERS ST, Salem, MA(111 zoning District), A public hearing ort the above petition was opened on 1Vlarch 21, 3012, pw9uant to &lass General Law Ch. 40A.§ 11, The hearing was continued to ,April 18,_'011, M1lay Uy, 301 2, and June 20, 2013, but was not heard those dates and no evidence was taken. Thr hearing was then continued to July 18, 3012 and closed on that date with the following Zoning Board of Appeals members present; Rebecca Curran, Richard Dianne, Aerate Harris,Jinuut Tsitsutus and Bonnie Belair. petitioner seeks a Special permit pursuant to Section 3,15, Nonconforming Single- ,uxl Two-Fantily Residential Stnrcttrres, of the Otyof Salent Zoning Onlirlinces, Statements offact: I. "1 a petition d,ttr•stamprd NLrrch i, 2011, petitioner Leslie Btrne rrdluested ,r 1p,-r .11 permit to aiterand extend her noneunfornung single f,trnily ht+use tvhh ,uI aJditu.n of 1 !,4 stories, 3. '11te mitioner was represented by Attomeylarttrs Clpuletta at the e Al.rrch 11, 1711 Meeting, but represented herself at the July l8, 3C13 meeting, ;. At the March 31, 3012 iuecting, the Board heard tc•stinumv Irom several ntentbct� �t the public who opposcd the project, citing coneents shout impacts RP ric ws. acc." to light and air, fire safety, privacy, and decreased home values, Tltc• board ,Ilse received several kttrrsin nppositiurt to the project„ts well as three loners h-.,t tIle-Boa rd-contitrurd-the he trim to April 18;?Ole', r�•ylk aur �T T� that the pvtitioner look .0 revising the design to n»nrmirr the impact u, al.uners, Particularly these ,rt 14 Sauuders Street, tvlto would lx ntu,t affeetcd hp the I)rr.jeCl. S. I1,e matter w45 Mot heard oil April 18, 1012, but was instead dvntinued to Nf.n lr,, 2011 and then to June 20, 2011; no evidence was taken un these dares. !ehe he'arlll" was them continued to JuIv 18, 1012. h. At the July 18, 2012 meeting, the Board discussed revised plans submitted by rhe petitioner showing a lowered height and a dormer design that reduced the 111.155 from the original proposal. At this hearing, the Board again heard testimony from abutters opposuig the project. 1. At the July 18, 2012 meting, Ileal Estate appraiser Steven G. Ozahoaski, I Sri VGillow St., Hamilton, stated that the value of the property located at 14 Saunders Street would be decreased by the pruposed addition. A shadow 5ttldy ativl stylar els �.uicrn; a-t ri .ilso subnunc•d to 311ow unpaet5 to duo hou>L art 14 Saunders Swvct, The Board of Appeal, after careful consideration of the evidence presented at tilt public hearing, and after thorough review of the plans and petition submitted, makes the followi ; Findings; I• Desirable relief may not be granted,since the proposed addition would be substantially more detrimental to the neighborhood that, the existin- nonconforming structure. Dtw to the house's close proxinuty to the abutter at 14 Saunders Street, the proposed addition is not appropriate for its location, would impinge on privacy,and would otherwise negatively impact abutters. On the basis of the above findings of fact and all evidence presented at the public hearing including, but not limited to, the Plans, Documents and testimony, the Zoning Board of Appeals concludes: L A Special Permit under Sec. Section 3.5,5, Nonconforming Single- and Two-Family Residential Structures, of the City of Salem Zoning Ordinances, is denied. In consideration of the above, the Salem Board of Appeals voted 5-0 (Curran, Hams, Dionne, T'itsinos and Belair opposed, none in Livor), to denypetitioner's request fora Special Permit. The petition is denied. �.cf;w 4LW .ti�,�9c Re e cc, Currin.Ch aur Salem Board of Appeal' DECISION IL,1S BEEN FILED WITHTIlE PLANNING Bt_1r1R1 r AND 'P-[E (MCIE RK Appeal frnm this decision, if .iny', '11.111 be made pursuant to Scctiori 17 of the Nlassarhu. n, (;eorr•II Lams Cll.lprer 4CA. .u1d shall be file) within 2C ib -, of filin;; of Illi' derisi m in tit. ullice of the Gty Clerk. Pursu:utt to the Ivlassachusetu General Laas Chapter 4oA,SCCt1u11 i t, the V,uriauce ur Special Perttut granted herein shall not take effect until a copy of the decision bearing the certificate of the Gry Clerk has been filed %ith the E.sses South Registrc of Deeds,