14 CHESTNUT STREET - LAURITSEN, THORVALD G - ZBA 14 CHESTNUT ST.
THORVALD G. LAURITSEN
s
r
COMMONWEALTH OF MASSAC' 'SETTS
Essex, ss . Superior Court
No . 81-1873
)
THORVALD G. LAURITSEN )
)
V. )
)
DOUGLAS HOPPER, ET AL )
)
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FINDINGS, RULINGS AND ORDER FOR JUDGMENT
This is a case brought under General Laws ,
Chapter 40A, Section 17 to appeal a decision of the
defendants (as they constitute the Zoning Board of Appeals
of the City of Salem) which denied an application of the
plaintiff for a special permit to convert a residence
located at 14 Chestnut Street, Salem to a condominium
having two units . The applicable zoning bylaw is Section
V-j (12) of the Salem Zoning Ordinances ,
The parties were helpful to the Court in arriving
at: a series of facts agreed, and also , under the same
headinj , a series of stipulations , all totalling twenty-
five in number, and attached hereto and marked A.
Referring to the aforesaid document, which is
entitled "Statement of Agreed Facts", even though it
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contains legal stipulations , some further explanation of
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some r the items is in order. 1_ ;m 11 states that "the
subject property is a two family dwelling" . The fact is ,
that under zoning R-2, any house on Chestnut Street is
per missibly a "two family dwelling" . At the time of
application for the permit , and the hearing before the
Court, and at the time of the hearing before the Board
of Appeals, there were not two families dwelling in the
subject property, and furthermore , in fact, though the
zoning is R-2, a number of the truly enormous residences on
Chestnut Street in Salem are not occupied by more than
one family.
With reference to Item 7 on Exhibit A, wherein
it appears that the membership of the defendant Board
voted three to two in favor of granting the permit, yet
the permit was denied because the bylaws require an
affirmative vote of four members of the Board, thus denying
a permit to an applicant like the plaintiff who nevertheless
achieves a majority; this rather odd proviso is not the
subject of any legal contest before this Court .
In fact, the legal result of the agreements and
st1p; 1at .ons set forth in Exhibit A is of service to the
•Court in effectively limiting the issues before the Court
to the real bases of the minority and controlling decision
of the Board of Appeals , to wit :
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"2. The proposed division of this property into
condominium units with the inherent problem of
dispute resolution which is present in a small
condominium development presents a threat to the
stability of the area and specifically to the
preservation of this unique example of. Greek
Revival architecture .
3 . The increase in the number of owners of this
property increases the likelihood that this
property might be used for professional offices
or for other non-residential purposes .
4 . The conversion of this property into two
condominiums will have an adverse impact on
the availability of- rental units for people
with moderate incomes . "
The only other issue before the Court is a legal
issue raised by the plaintiff, contending that the ordinance
itself, requirin.g a special permit for condominium conversion
is :invalid as not permitted by the zoning enabling statute ,
to wit, Chapter 40.." .
I . v^,LIDITY or THE oRDIN^.NCE.
This issue appears to be foreclosed by the opinion;
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of the Supreme Judicial Court in Goldman v. Dennis, 375
Northeast 2nd, 1212, and on this issue, I adopt the
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arguments of the brief for the defendant, except that I
do not adopt dictum contained in Norsco Enterprises v .
Preemont, 54 Cal . App. 3rd, 488, 498. I therefore rule
that the Salem Zoning Ordinance , declaring condominium
ownership a permitted use, but subject to grant of a special
permit , is valid. Therefore , I pass on to the consideration
of the action of the Board whereby a minority effectively
denied the. permit, .purportedly acting under the terms of
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the zoning bylaw .
II. THE ZONING BYLAW.
A copy of the applicable zoning bylaw is attached
hereto and marked B. So far as this bylaw is concerned,
it will be observed that the numbered conditions to be
considered by the Board of Appeal appear in Subsection 12c,
and that of these-, four conditions or "standards" , only
the condition numbered "2" applies to this case , in. view
R •.ab
of the agreements and stipulations set forth in Exhibit A.
Thus, in considering whether or not a permit should or
should not issue, for purposes of this case , and under the
decision of the Board quoted above , the denial of the permit .
involved the application of Subsection 12c. 2, not, quoted :
2 . the impact of the cooperative or condominium
conversion on the neighborhood and its impact
on the existing stock of rental units in the
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City of Salem for families of low and moderate
income and elderly people on fixed incomes . "
It appears from the decision of the Board previousl::
referred to that, with the exception of asserted likelihood
of increase of professional offices or other non-residential
purposes, the minority rested its decision upon an unfavor-
able impact upon the neighborhood, by threatening the
stability of the neighborhood and the preservation of
architecture therein, and an impact on the existing stock
of rental units for families of low and moderate income
and elderly people on fixed incomes .
III. I14PACT ON EXISTING STOCK OF RENTAL UNITS .
There are thirty residential structures on
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Chestnut Street in Salem. To the rear of some of these are
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structures, locally referred to as "carriage houses" . There
exists on Chestnut Street fourteen quarters that are used
or have been used as rental space , occupied currently or
at times in the past by rent paying tenants . Of these
fourteen rental spaces, four are all located in the
structure numbered No . 2 Chestnut Street . Of the remaining
ten, one or more are located in so-called "carriage houses" .
One of these fourteen rental spaces is in the locus. The
only former tenant who testified was a woman in her younger
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middle years who did in fact occupy rental .space in the
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locus in question, which then and now consisted of a living
room, dining room, kitchen, bath, and three occupiable
bedrooms, for which she , as sole occupant, paid .the then
owners $425 a month . This lady declined to disclose her
income at the time of her occupancy, but she vacated the
premises in order to purchase No . 42 Chestnut Street for
a price of $$00,000, having sold out her interest in a
certain commercial operation in Salem for a sum exceeding
$500,000 . Her occupancy of the space in the locus was
succeeded by a couple (no children) , income undisclosed .
The space has not been rented since purchase by the
appellant . There was no testimony before the Court of
any other tenants occupying the rental space in the locus .
There was credible testimony, which I adopt; by
one cSwiggin, the man in charge of placing tenants in
Salem housing either subsidized for or available to families
of low to moderate income under Federal and State guidelines .;
He testified that in his experience in his job, dating from
10'(6, no Chestnut Street owner had ever solicited tenants
fro;:
question was put to him by the Court, he plainly indicated
that the suggestion was almost unthinkable .
McSwiggin further testified, and I find that
a private landlord, controlling rentable space , even if
charging current rent falling within the guidelines of
authorities setting up appropriate rents for "families
of low or moderate income " remained free (except for laws
against racial discrimination) to reject any applying tenant
regardless of their "low or moderate income", and despite
the fact that they may have been referred to the landlord
by McSwiggin ' s Federally funded office .
It appears, and I find that in an area of Salem
known as the "Point", a substantial number of decrepit former
apartment buildings are now being renovated with Federal
grants, and that the renovating authorities have determined
to convert one hundred and ten former rental apartment
units existing therein into condominiums . Since these
buildings had fallen into such disrepair thatmost of
these converted units were not occupied at the time of
conversion, there cannot be a suggestion that the
Condominium conversion thereof operates to reduce an
existing stock of apartment units . Nevertheless , it is
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observable that it was open to the funding authorities to
renovate these units as apartments along with all of the
other _crepit apartments that we, e being renovated, a matter
that bears upon the issue of "stability" of a neighborhood.
More to the point, perhaps , is that in the past very few
years , one hundred and seventy-nine units, formerly
residences or apartments in Salem have been "converted"
into condominium ownership.
The foregoing summary is not designed in itself
to suggest that the Board ' s decision was arbitrary or
unreasonable , but to bring to the attention of the Board
upon -remand that :
1 . There is very little or no evidence that space
in the locus is or has ever been available to
"families " of low or moderate income or to
elderly persons with fixed income;
2 . that there is very little or no evidence that
the Chestnut Street area is available to those
needy applicants trying to do business with the
office of Mr. McSwiggin;
3 . that in recent years , for no doubt adequate reasons,
one hundred and seventy-nine structures or units
have been permitted to become condominiums .
These observations and suggestions are brouht
up for careful consideration by the Turd on remand as to
whether or not in truth the three bedroom apartment in the
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locus is or has ever been part of a stock of rental housing
available . for low and moderate income "families", or .
elderly people with fixed incomes--and more pointedly,
whether or not this issue is genuine .
IV. LIKELIHOOD OF MORE PROFESSIOT4AL OFFICES.
The Court is unable to follow this reasoning .
Since the area is zoned R-2, it seems obvious that a , permit
(which is required) could be issued to any person or family
occupying rented space in one of the structures as of today.
:Whether or not a structure were owned as a condominium by
two owners does not seem to present any difference . whatsoever.
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The granting or withholding of a permit would continue to `
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be a matter within the powers granted to the Board whether
faced with a two family apartment dwelling, or a two family
condominium. I rule that therefore , this stated reason
for withholding a condominium permit is without a reasonable
basis .
V. STABILITY OF THE CHESTNUT STREET ARE . .
The Court though altogether familiar as a
commuter with the area, nevertheless took a slow and detailed
view of the street, of the locus, and of the interior of
the locus . Some of the observations derived from the view
are set forth visibly on a chalk permitted to be examined
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as "Chalk A", attached hereto . . This chalk does not lend j
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itself to accurate reproduction, since it contains different
colors , but the original discloses what was observed in
fact on the view, to some extent, as follows :
Of the thirty major structures on the street,
eight are what used to be called "semidetached" houses--
that is, what appears on casual glance to be a single
structure is in fact two or more separate residences ,
divided in some instances by a permanent party wall . The
street runs from the low numbers , almost due west, and on
the south side o ° the street, brick residences predominate .
There was credible testimony, and I find that residences
of brick do not present problems of maintenance as severe
as those of wood . However, there was credible testimony,
and it was observable in the case of the semidetached brick
residences lying on the southerly side of Chestnut Street
that there were variations in the maintenance of these
structures as between the respective owners of sections of:
such structures . It was testified, and I find, that within
these structures, there are no enforceable agreements between
or among the respective owners . That is, one owner is free
to permA t his exterior to fall into a condition of shabbiness .
where. his immediate adjoining neighbor may be most meticulous
in his attention to his share of the structure . It was
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testified, and I find, that in the case of these semidetached'
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houses ;ome of which are most imp jssive in facade , that
degrees of care in maintenance varied considerably, and that
the respective owners had no means of control of the
neighbor ' s behavior except by complaint and inducing shame .
On the northerly side of the street, which also
contains four large semidetached structures , the condition
adverted to above is far more noticeable, because the
northern side contains more wooden dwellings In fact,
with the exception of three extravagantly large wooden
residences (one of them deeded to the; Federal Government
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in trust ) , most wooden structures are in a state of poor
maintenance, particularly those that are semidetached
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structures . The considerations mentioned above , to wit,
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the complete lack of any control of one neighbor over
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the maintenance of the other, exist on the northerly side
of Chestnut Street, and are apparent upon a walking view
of the street .
Here again, the attention of the Board is
directed to this set of circumstances upon remand for
further consideration of whether or not condominium
oe:nersh:i.p is as likely to contribute to disparate maintenance
as semidetached ownership.
It is observable from Chalk A, and perhaps more
4 clearlyy shown in an Assessor ' s Map introduced as Exhibit {
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No . 11 , that of the non-semidetached structures on Chestnut
Street, the locus , No . 14, occupies a larger ground area
than any other non-semidetached build-Ing with the possible
exception of No . 2c. Number 20, is of brick construction,
the facade facing away from the sun, and presents, being
brick, a lesser problem of recurrent maintenance than the
locus . The matter of size is adverted to herein for the
obvious point that the more sizeable, the more expensive ,
in terms of operation and maintenance . It is apparent from
a view that maintenance of the wooden structures lying on
the north side of Chestnut Street is presenting a problem
to the owners and residents thereof . It is apparent, as
aforesaid , that the semidetached wooden structures present
not only the ordinary problem of maintenance of a large
wooden structure , but also a difference in ability or
temperament of the co-owners . Recognizing indeed, that
the street is a unique historical and architectural enclave ,
and that its proper preservation is an asset to the City
of Salem, a real question should arise as to whether or not
semidetached ownership is necessarily superior to condominiuir.
ownership. Apparently, since the City has permitted one
hundred and seventy-nine convailsions, the administration
of condominium ownership does not present an insuperable
hurdle . The notion that disagreement is more likely between "
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two owners than among, say, six owners of a condominium-
owned structure does not appear to this Court to be
sensible . If any condominium agreement can be found
acceptable to the Board involving multiple common ownership
of a. structure, the Court is hard put to see why an
acceptable agreement cannot exist between two owners .
Finally, upon that basis which permits a jury
to bring to its consideration of a problem "its own
common sense and experience ", the Court notes its
disagreement with any notion that ownership by a landlord
"guarantees effective management" (compare Norscoy. Fr emont,
54 Cal . App. 3rd, 1+88, 498) , superior to :cooperative or
condominium ownership. Credible expert testimony before me
was to the contrary, and plainly is the basis for the
condominium project underway at the "Point" . The attention
of the Board is further invited to consideration of
current maintenance of condominium conversions in the Salem
area .
61it: all respect and due deference , but with a
direction that the plaintif.f' ' s applicat .on be subject to
a further hearing, on proper notice , the matter is remanded
to the Board of Appeals for further consideration, and
specific findings in the following areas :
1 . Upon what basis can it be found that the locus
— — 14 —
has ever constituted a part of the City of Salem' s
stock of rental units available to "families of
low and moderate income "'?
2 . Upon what evidence can it be found that condominium
conversion of No . 14 Chestnut Street will
contribute to poorer maintenance than that
existing in the case of wooden semi-detached
dwellings on the north side of Chestnut Street?
3 .
For what reasons are two owners less likely to
be able to resolve disputes than multiples of
two owners, given a condominium agreement
containing a workable dispute mechanism?
Judgment is to enter ordering the defendant Board '
to conduct a further hearing, on proper notice , of the
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plaintiff' s application, and render a decision that includes
the issues numbered and specified above .
:i /7:
Edward H . Bennett, Jr.
Justice of the Superior Court
Entered :��}�1 � ���
��f /�/111�•
a x
(gifu of $alem, �z stttl�u e#f c U'`=L)
Pourb of �ppvd '82 JUN 15 A 9 :21
•�aIIpNE��
DECISION ON THE PETITION OF THORVALD G. LAURITSEIV CLERK'; '0F F I C E
A SPECIAL PERMIT FOR 14-14 1/2 CHESTNUT STREET
A hearing on this petition was held on June 2, 1982 with she following Board
Members present: Douglas Hopper, Chairman; Messrs. Piemonte, Hacker and
Feeherry and Associate Member Luzinski.
Notice of the hearing was sent to abutters and others and a notice of the hearing
was properly published in the Salem Evening News in accordance with Mass. Gen.
Laws Ch. 40A. This hearing was scheduled in accordance with the terms of the
judgment entered by the Court,. Bennett, J. in the case Lauritsen v. Hopper et al.
(Superior Court, Essex County, C.A. No. 80-1873) . That case involves an appeal
by the petitioner from a prior decision of this Board denying petitioner's
request for a Special Permit to allow the conversion of the subject property
to two condominium units. Under the terms of the judgment entered in that case,
the Court remanded petitioner's request for a special permit to allow the conver-
sion of the subject property to condominiums to this Board for "further considera-
tion of the [petitioner's special permit] application and specific findings in
the following areas":
1. Upon what basis can it be found that the locus
[14 Chestnut Street] ever constituted a part of
the City of Salem's stock of rental units avail-
able to "families of low and moderate income"?
2. Upon what evidence can it be found that condominium .
conversion of No. 14 Chestnut Street will contribute
to poorer maintenance than that existing in the case
of wooden semi-detached dwellings on the north side
of Chestnut Street?
3. For what reasons are two owners less likely to be
able to resolve disputes than multiples of two owners,
given a condominium agreement containing a workable
dispute [resolution] mechanism?
After a public hearing on this matter, this Board concluded as follows on the
above issues:
1. With respect to Issue No. 1 above, the Board unanimously
concluded on the basis of evidence presented to it--including
in particular the new materials relating to the rents which
were previously charged for the apartment at the site, which
materials were provided to the Board in a brief submitted on
behalf of the Chestnut Street Associates— that 14 Chestnut
Street, at some time in the past, constituted a part of the
City of Salem's stock of rental units "available" to families
9
qr„- -G.� LAURITSON
Iz 1/2 Chestnut Street
i= 2, 1982 - -
1; of moderate income. The Board bases its unanimous decision
on this issue .principally upon the relative low rent received
for the apartment at the locus several years ago. Whether
measured by HUD guidelines or any other standard, the apart-
mentwas."available to familes of low or moderate income. No
evidence was submitted to the Board on whether a moderate
income family ever rented the apartment at the locus.
However, with respect to the collateral question raised by
�I the City of Salem'-s condominium conversion ordinance, the
Board split 01, the question whether the conversion of the
apartment at the locus to a condominium would have any impact
upcn the City's stock of rental units available to families
of moderate income. Board Members Messrs. Feeherry and Hopper
were of the opinion, both because of the current rent for the
apartment and because the property at issue has but a single
rental unit, that the conversion of this property to two
condominiums would have no impact upon the City's present
stock of rental units available to families of moderate incomes.
Whereas, Board Members Messrs. Piemonte, Luzinski and Hacker
were of the opinion that the conversion of the one rental unit
at the locus to a condominium will have an adverse effect on
the City's available stock of rental units for families of
moderate incomes. In this regard, Messrs. Luzinski and Hacker
are particularly concerned about the impact of this condominium
conversion upon the very limited number of moderate income
rental units in the area of the City where the property is
located. Moreover, Messrs. Piemonte, Luzinski and Hacker
are all also of the opinion that this condominium conversion,
by virtue of the precedent that it will set, will have an
adverse effect on the City's overall stock of rental units
for families of low and moderate incomes.
2. With respect to Issue No. 2 above--the question whether there
is evidence upon which it can be found that the conversion of
this property to condominiums will contribute to poorer main-
tenance than that existing in the case of wooden semi-detached
dwellings on the north side of Chestnut Street--Messrs. Hopper,
Feeherry and Piemonte are of the opinion that no such evidence
was presented to the Board and that to the contrary, the evi-
dence indicated that condominium conversion would contribute
to better overall maintenance of this property as compared to
those sites on the north-.side of Chestnut Street which are
referenced by the Court in Issue No. 2. Messrs. Hacker and
Luzinski hold the contrary opinion that it is more likely than
not that condominium conversion will contribute to poorer
maintenance and in particular, that condominium conversion
would have the effect of reducing the likelihood of maintaining
the unique historic interior and exterior features of the locus
property. Messrs. Hacker
and Luzinski
hold this view based
upon the evidence submitted to the Board which indicated that
_aoestaat"Street: _
due to the likelihood of disagreement over matters of taste
and finances, the maintenance of the exterior of this property
may be subject to frequent arbitration and with the resulting uncer-
tainty of outcome and delays ordinarily accompanying litigation,
maintenance of the entire structure and common areas will suffer
to the detriment of the entire house and neighborhood. This
situation is different from the case of-semi-detached wooden-
structures where the failure of the two owners to agree to
maintenance or repairs wouldiiot impede maintenance from pro-
ceding. In such_etructures where one owner fails to maintain,
only one-half of .the structure suffers. . - -
--3. Finally, on Issue No. 3 above--the question whether there is
evidence that "two owners are less likely to be able to resolve
disputes than multiples of two owners given a condominium agree-
ment containing a workable dispute [resolution] mechanism"--
Mr. Feeherry is of the opinion that the dispute resolution
features in the petitioner's condominium documents provide a .
workable framework for the .resolution of all disputes amongst
owners. All other members of the Board are of the opinion that
the dispute resolution mechanisms in the condominium documents
are procedurallyawkward, time-consuming, and expensive and
that they do not provide adequate standards to ensure a workable
process for resolving disputes, particularly if such disputes
relate to capital expenditures concerning preservation of the
unique architectural features of the subject property. `' In a
addition, Messrs. Hopper, Hacker and Luzinski are also of the
opinion that the size of the condominium conversion (i.e. , a
two-unit conversion) presents inherent dispute problems, such
as dividing large'•capital expenses amongst only two owners--
which are not present in larger condominium conversions where
no single owner can obstruct maintenance and require that an
issue such as maintenance be decided.byarbitration.
A hony M. Feehe y
ecretary
A COPY OF THIS DECISION AND PLANS HAS BEEN FILED WITH THE PLANNING BOARD AND
THE CITY CLERK APP@AL F cG k rus F, : .c r rT ^! 17 3 T 7E Id.:1ss.
GE'J_RAL Lma1S U„ '. ,LS. Ih _-.Ji OC ilLl.;G
OF IMS DELI„i17 FI `i'r i!.. :.i1'(
GRA-JicD nEli' . _... .,. ,.r•F „i t !- •. t .HE i ...._ c _:.'7G
PIC!\TIO"J OF it ti '6 J" _-t.- .� i ) -'' i -i iii + '•._ED, !.
OR 111Al, SULH APi ' 6_LN IS
RECORDED IN THE J�'.I C SE -_ .. = ii1� .;r L-!E G'.'JNER
OF RECORD OR IS RECORDED AND NOTED 011 1 iL 'J: E a -u I ii UAiE 0V -IMA
{
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BOARD OF APPEAL '�.
RICHARD w. STAFFORD CITY OF SALFIM b,VILLIAM F. OU1NN
CITY SOLICITOR MASSACHUSETTS ASSISTANT CITY SOLICITOR
93 WASHINGTON STREET 15 DERSY SOUARE
SALEM, MA 01970 SALEM, MA 01970
744.2172 744.2948
July 6, 1982
The Honorable Edward H. Bennett, Jr.
Superior Court
32 Federal Street
'Salem, Massachusetts 01970
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In re: Thorvald G. Lauritsen vs . Douglas Hopper, et al
Docket No. 81-1873
Dear Judge Bennett:
Pursuant to your Judgment dated April 1, 1982, the City of Salem
Board of Appeals, following a further Hearing, with proper notice, at
a meeting held on June 2, 1982 and June 8, 1982, rendered the enclosed
Decision and Supplemental Decision on the Petition of Thorvald G.
Lauritsen as he is the owner of a certain parcel of land located at
14 Chestnut Street, Salem, Massachusetts.
The Board was unclear with regard to whether or not your honor
desired a new Vote on the Petition of Mr. Lauritsen and therefore
rendered the enclosed Supplemental Decision, which Decision has not
been recorded with the City Clerk and will not be recorded with the
City Clerk without further direction from your Honor'.
Very truly yours ,
�.� 7j:- ..__.. --
Richard W. Stafford
Citv Solicitor '
RIBS/dlg
Douglas Hopper, Board of Appeals
cc : Robert F. Peck, Jr. , Esq .
George P. Vallis, Esq .
enclosure
J'.
CERTIFICATE OF SERVICE
I, RICHARD W. STAFFORD, ESQUIRE, CITY SOLICITOR, CITY OF SALEM,
hereby certify that I have served the foregoing "Letter to the Honorable
Eduard H. Bennett, Jr . " upon the Plaintiff's attorneys, Robert F. Peck, Jr .
3
i and George P. Vallis whose address is One Church Street, Salem, Massachu-
setLs by mailing to them a copy postage prepaid .
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DATED: July 6, 1952
Richard W. Stafford,- squ r
City Solicitor
City of Salem
93 Washington Street
Salem, MA 01970
Titu of
of cop val '82 JUN 15 A 9 :21
DECISION ON THE PETITION OF THORVALD G. LAURITSEtGIIFO"RCCL`;
A SPECIAL PERMIT FOR 14-14 1/2 CHESTNUT STREET
A hearing on this petition was held on June 2, 1982 with the following Board
Members present: Douglas Hopper, Chairp:.an; Messrs. Piemonte, Hacker and
Feeherry and Associate Member Luzinski.
Notice of the hearing was sent to abutters and others and a notice of the hearing
was properly published in the Salem Evening News in accordance with Mass. Gen.
Laws Ch. 40A. This hearing was scheduled in accordance with the terms of the
judgment entered by the Court, Bennett, J. in the case _Lauritsen v. Ho➢per et al
(Superior Court, Essex County, C.A. No. 80-1873) . That case involves an appeal
by the petitioner from a prior decision of this Board denying petitioner' s
request for a Special Permit to allow the conversion of the subject property
to two condominium units. Under the terms of the judgment entered in that case,
the Court remanded petitioner's request for a special permit to allow the conver-
sion of the subject property to condominiums to this Board for "further consid-ra-
tion of the [petitioner's special permit] application and specific findings i::
the following areas":
1. Upon what basis can it be found that the locus
[14 Chestnut Street] ever constituted a part of
the City of Salem's stock of rental units avail-
able to "families of low and moderate income"?
2. Upon what evidence can it be found that condominium
conversion of No. 14 Chestnut Street will contribute
to poorer maintenance than that existing in the case
of wooden semi-detached dwellings on the north side
of Chestnut Street? _
3. For what reasons are two owners less likely to be
able to resolve disputes than multiples of two owners,
given a condominium agreement containing a workable
dispute [resolution] mechanism?
After a public hearing on this matter, this Board concluded as follows on the
above issues:
I. With respect to Issue No. 1 above, the Board unanimously
concluded on the basis of evidence presented to it--including
in particular the new materials relating to the rents which
were previously charged for the apartment at the site, which
materials were provided to the Board in a brief submitted on
behalf of the Chestnut Street Associates -- that 14 Chestnut
Street, at some time in the past, constituted a part of the
City of Salem' s stock ofrental units "available" to families
14-14 1/2 Chestnut Strep[
June 2, 1.982
Page 2
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of moderate income. The Board bases its unanimous decision
on this issue principally upon the relative low rent received
for the apartment at the locus several years ago. Whether
measured by HUD guidelines or any other standard, the apart-
ment was "available"
part-
mentwas:"available" tofamilcs of low or moderate income. No
evidence was submitted to the Board on whether a moderate
income family ever rented the apartment at the locus.
However, with respect to the collateral question raised by
the City of Salem' s condominium conversion ordinance, the
Board split on the question whether the conversion of the
apartment at the locus to a condominium would have any impact
upon the City' s stock of rental units available to families
of moderate income. Board Members Messrs. Feeherry and Hopper
were of the opinion, both because of the current rent for the
apartment and because the property at issue has but. a single
rental unit, that the conversion of this property to two
condominiums would have no impact upon the City' s present
stock of rental units available to families of moderate incomes.
Whereas, Board Members Messrs. Piemonte, Luzinski and Hacker
wereof the opinion that the conversion of the one rental unit
at the locus to a condominium will have an adverse effect on
the City' s available stock of rental units for families of
moderate incomes. In this regard, Messrs. Luzinski and Hacker
are particularly concerned about the impact of this condominium
conversion upon the very limited number of moderate income
rental units in the area of the City where the property is
located. Moreover, Messrs. Piemonte, Luzinski and Hacker
are all also of the opinion that this condominium conversion,
by virtue of the precedent that it will set, will have an
adverse effect on the City's overall stock of rental units
for families of: low and moderate incomes.
2. With respect to Issue No. 2 above--the question whether there
is evidence upon which it can be found that the conversion of
this property to condominiums will contribute to poorer main-
tenance than that existing in the case of wooden semi-detached
dwellings on the north side of Chestnut Street--Messrs. Hopper,
Feeherry and Piemonteareof the opinion that no such evidence
was presented to the Board and that to the contrary, the evi-
dence indicated char condominium conversion would contribute
to better overall. maintenance of this property as compared to
those sites on the north side of Chestnut Street which are
referenced by the Court in Issue No. 2. Messrs. Hacker and
Luzinski mold the contrary opinion that it is more likely than
not that condominium conversion will contribute to poorer
maintenance and in particular, that condominium conversion
would have the effect of reducing the likelihood of maintaining
the unique historic interior and exterior features of the locus
property. Messrs. Hacker and Luzinski hold this view based
upon the evidence submitted to the Board which indicated that
J t.(WS Ln.:t Jtr cet
Done 2, 1-Q3-
Page 3
due to the likelihood of disagreement over matters of taste
and finances, the maintenance of the exterior of this property
may be subject to frequent arbitration and with the resulting uncer-
tainty of outcome and delays ordinarily accompanying litigation,
maintenance of the entire structure and common areas will suffer
to the detriment of the entire house and neighborhood. This
situation is different from the case of semi-detached wooden
structures where the failure of the two owners to agree to
maintenance or repairs would not impede maintenance from pro-
ceding. In such structures where one owner fails to maintain,
only one-half of the structure suffers.
3. Finally, on Issue No. 3 above--the -question whether there is
evidence that "two owners are less likely to be able to resolve
disputes than multiples of two owners given a condominium agree-
ment containing a workable dispute [resolution] mechanism"--
Mr. Feeherry is of the opinion that the dispute resolution
features in the petitioner's condominium documents provide a
workable framework for the resolution of all disputes amongst
owners. All other members of the Board are of the opinion that
the dispute resolution mechanisms in the condominium documents
are procedurally awkward, time-consuming, and expensive and
that they do not provide adequate standards to ensure a workable
process for resolving disputes, particularly if such disputes
relate to capital expenditures concerning preservation of the
unique architectural features of the subject property. In
addition, Messrs. Hopper, Hacker and Luzinski are also of the
opinion that the size of the condominium conversion (i. e. , a
two-unit conversion) presents inherent dispute problems, such
as dividing large ,capitai expenses amongst only two owners--
which are not present in larger condominium conversions where
no single owner can obstruct maintenance and require that an
issue such as maintenance be decided byarbitration. j
I
A hony M. Feehe ry /
Secretary /J
A COPY OF PHIS DECISION AND PLANS HAS BEEN FILED WITH THE PLANNING BOARD AND
THE CITY CLERK - ----, 17 7 -
TRUE
J SEPHINE R. FUSCO
CITY CLERK
r, T-ttu of "�IEm, � �ss�L4�usE is
A
IIttr� of Appeal
SFUUDTEHTAL DECISION ON THE PETITION OF THORVALD G. LAURITSEN
CITY G S>''_ OR % ECIAL PERMIT FOR 14-14 1/2 CHESTNUT STREET
A continued hearing on this petition was held on June 8, 1982 with the following
Board Members present: Douglas Hopper, Chairman; Messrs. Piemonte, Hacker and
Feeherry and Associate Member Luzinski.
This continued hearing was scheduled because of the Board' s uncertainty about
the terms of-ajudgment entered by the Court, Bennett, J. in the case Lauritsen
v. Hopper et al. (Superior Court, Essex County, C.A. No. 80-1873) . . Under
the terms of the judgment, entered in that case, the Court remanded petitioner's
request for a special permit to allow the copversion of the subject property
to condominiums to this Board for "further consideration of the [petitioner's
special permit] application, as well as specific findings in certain areas".
By a prior decision, this Board responded to the Court's Judgment by making
certain additional specific findings of fact. By this supplemental decision,
this Board also records the Board's vote, upon reconsideration, concerning
the petitioner's request for a special permit. -
The Board voted 3 - 2 to deny the petitioner's request for a special permit
with Messrs. Hopper, Luzinski and Hacker voting to deny the special permit
and Messrs. Piemonte and Feeherry voting to grant the special permit.
Those members voting to deny the special permit adopt both the findings of
fact stated in all of this Board's prior decisions on this property.
thony ;f. Feeh rry
Secretary
d
A COPY OF THIS DECISION AND PLANS HAS BEEN FILED WITH THE PLANNING BOARD AND
THE CITY CLERK
1. The Board'of Appeal finds as follows:
1. That in accordance with HUD guidelines as+outlined' in ,the Chestnut Street memo-
randum and in information provided by the City Planner, none of which is dis-
puted by the petitioner; in.accordance with the actual rents paid, both as
set forth in the Chestnut Street memorandum and as presently charged by the
petitioner ($650.00) , the subject property has been and is a part of the City's
housing stock affordable by moderate income families (5-0)
2. That the proposed sales price of $109,000 would result in carrying costs in
excess of that affordable by a moderate income family.
3. That the ordinance does not exempt two unit condominium conversions. (5-0)
4. That the.- removal of this rental unit from the City's stock of moderate income
rental units will not similarly=reduce the number of families seeking a rental
unit, unlike many other conversions which create ownership opportunities for
moderate income families.
S. That the elimination of this rental unit could have a spillover effect on the
E� reduced number of rental units in the street by raising rental prices in the
remaining units due to a) increasing demand for lesser units, and b)i raising
property values on Chestnut Street. This increase could result in the removal
of additional rental units from the price range of affordable to moderate
income families.
6. Therefore, the grant of a special permit would result in an adverse impact on
the existing stock of rental units in the City of Salem available to families
of moderate income. (3-2) .
2. The Board of Appeal finds as follows:
1. That the building located at 14 Chestnut Street was not designed as a wooden
semi-detached dwelling, but as a single family house with servants quarters
now used as a rental unit.
2. That due to the likelihood of disagreement over matters of taste and finances,
the maintenance of the exterior will be subject to frequent arbitration and
litigation, and thus resulting uncertainty of outcome and delays ordinarily
accompanying litigation, maintenance of the entire structure and common areas
will suffer to the detriment of the entire house and neighborhood.
3. That in the case of semi-detached wooden structures the failure of the two
owners to agree to maintenance or repairs, does not impede maintenanee •from
proceding. Where one owner does .fail to maintain, only one-half of the structure
suffers. 1
4. The Board finds that single families have been sold on Chestnut Street in the
recent past and new owners have invested substanitally in repair and restoration
of the exterior facades. No evidence was presented supporting the arguement
that the economics of maintenance are prohibitive at this time.
3. The Board of Appeal finds as follows:
1. That in this two-unit condominium, each unit owner has a veto over common area
mainteneance. In condominiums having larger number of units, no single dissi-
dent owner can obstruct such maintenance. The , larger the number of units, the
easier it is to obtain majorities. Once majorities are obtained, even if dis-
sident owners refuse to pay, the burden of that refusal is shared by more
owners, lessening the impact of one dissident owner on the condominium.
2. That on information provided by the representative of the Chestnut Street
Associates, arbitration procedings provide no standards or guidelines to the
arbitrator.
3. That the condominium documents do mot provide any standards to guide an
arbitrator in deciding issues- of, maintenance an improvement.
4. That the Board finds an analogy units own procedings. Under the law by which
it it guided, four affimative votes are required of a 5 member board to grant
special permits. When five members sit, one dissident vote in opposition
cannot prevent the grant of a special permit. With only 4 members present,
one dissident vote does prevent the permits issuance.
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