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2 LAWRENCE STREET - ZBA a 0 VII � c CO. i M MICHAEL E. O'BRIEN LEONARD F. FEMINO CITY SOLICITOR 'L ASSISTANT CITY SOLICITOR 93 WASHINGTON STREET �°'uMgyO93 WASHINGTON STREET and - and 81 WASHINGTON STREET CITY OF SALEM ONE BROADWAY SALEM, MA 01970 MASSACHUSETTS BEVERLY, MA 01915 745-4311 745.4311 744.3363 921.1990 Please Reply to 81 Washington Street Please Reply to One Broadway January 21, 1987 James B. Hacker, Chairman Salem Board of Appeal One Salem Green Salem, Massachusetts 01970 Re: Robert M. Maguire, Tr. vs James B. Hacker, et. als . Superior Court #86-402 Dear Mr. Hacker: Enclosed for your records please find original recorded document in the above matter. Very tru y yours- /Michael E. O'Brien City Solicitor MEO/Jp Enclosure eao� 8552Pd79. .�.aowiq,b Civ of *Iem, Anssxiltusetto Poxrb of �"eal OCT 3 10 07 PN '86 �(J FILE CONDITIONS TO BE ATTACHED TO THE SUMMARY JUDGEMENT OF J. HAROLD FLANNERY DATED AUGUST 26, 1986 BY THE PARTIAffy CLt.F(.3iLEM,MASS, OF ROBERT M. MAGUIRE TR. (PLAINTIFF) VS JAMES HACKER, ET AL (DEFENDANTS) SUPERIOR COURT CIVIL ACTION #86-402 In accordance with Judge Flannery's decree the Board of Appeal exercises its authority to reasonably impose the following safeguards and limitations at 2 Lawrence St. a/k/a 165 Ocean Ave. , Salem. 1 . A six (6) foot stockade fence be built on the south side of the boundary line running the entire length of the property; 2. Parking plan be modified so that the two (2) spaces on the corner of Ocean Ave. and Lawrence St. be moved closer to the fence so as to maximize the open space to the intersection; .o cn o� 3. A Certificate of Occupancy for each unit be obtained. o `-) a co demes B. Hacker, Chairman S44 y TRUE Y ,ATTEST 19 bm, use O F . P YCo �• � ° �r t be L. ,1986 w soon 8552PC180 COMMONWEALTH OF MASSACHUSETTS Department Of The Trial Court I Essex, ss. Superior Court N No. 86-402 0 z Robert M. Maguire, Trustee GI] G vs. O U " c I7M��J O -l1 I James Hacker, et al I! r� ria 3 � to © Cn SUMMARY JUDGMENT (MASS. R. CIV. P. 56 ) This action came to be' heard befc,re the Court, Flannery, J. presiding, upon the motion of the plaintiff Robert M. Maguire, Trustee for summary judgment pursuant to Mass. R. Civ. P. 56, the parties having been heard, the Court finds that there is no genuine issue as to material fact, and that the plaintiff Robert M. Maguire, Trustee is entitled to a judgment as a matter of law It is Ordered that - the plaintiff is entitled to a variance from the pertinent setback .requirements of the Salem Zoning Ordinance. Of course, �I noth' ,g _ticvein shall be construed to limit the B.oardIs S. 10 authority reasonably to "impose conditions, safeguards and limit ations': on'-the .-use of the property. "'``The..Clerk-Magistrate of tho Court is directed to mail an �tteSted 6 py oftth'is: judgment within thirty days from the date hereof; rto `the _Cite Clerk, Building Inspector, and Board of 4eApp3a7.s,F,respegtiv.ely of :the City of Salem. Peabody, Massachusetts, this 27th day ofAugust, . 1986. 5 — COPY, A -- � da;,. !�" "" - °a�+nr.ntst ' _a Assistant Glerk BOOK 8552PC181 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss SUPERIOR COURT CIVIL ACTION No. 86-402= J v7 a2 Q Or. RQB$ERT M. MAGUIRE, TRUSTEE, ) Plaintiff ) ) vs�: ) MEMORANDUM AND ORDER o _ _ co U ) JAY HACK^R, E'l".. AL, Defendants j ) Proceeding under M. G.-L.. c. 40A, §17 , the plaintiff seeks summary judgment that, contrary to the decision of the Salem Board of Appeals , he. is entitled to a .variance from the setback require- ments of the Salem Zoning Ordinance. . The plaintiff' s application was denied by the Board in January of 1986 and again in July of 1986 , by a two to two vote, after a hearing following a remand by this court. The facts are that the plaintiff owns a buildable lot that is a rectangle, and in order to actually .make a permitted use ;of it he nF^d1k>' a,, "substantial hardship". variance pursuant :to:,910.-.of c. 40A. It is undisputed that the . lot can accommodate: a propor- tionate' rectangular two-family house, but unless it is to be paper thin -or a vertical tube, there will have to be setback relief along the front and back of the longer sides. The question. pre2. sented, therefore, to paraphrase the statute, is whether, owing to circumstances relating to the shape of the land and especially BOOK 8552PG182 + affecting it, literal enforcement of the zoning ordinance will involve substantial hardship to the plaintiff, and whether a variance can be granted without nullifying the intent and purpose of zoning or causing other harm to the public good. Summary judgment may be entered only if there is no genuine issue as to any material fact and the materials of record show that the moving party is entitled to prevail on the law.. Mass. R. Civ. P. 56(r,) . The defendants initially opposed summary .judg- ment in this court on the ground that there were disp,.!ted issues of fact (Memorandum of June 11, 1986) . Whether that is still' their, position, following the.. post-remand public hearing on. July 16,. 1986, was not made clear at the August 7 hearing on the pres- ent motion... However, summmary judgment is appropriatebecause, while the conclusions to be drawn are disputed, the material facts and circumstances themselves are not. First, because of the shape of the property, literal appli- cation of the ordinance would effectively preclude the plaintiff's concededly permissible proposed use of it. That inevitable and undisputed preclusion constitutes a substantial hardship within the meaning of c. 40A, 510. It is true that lesser uses of tiis property would also be permissible (it is now a three-stall garage) , but to permit only such uses would nullify the hardship exception. Section 10 is designed to facilitate permitted. uses of unusual property, it is not intended to authorize boards or neigh- bors to refine. zoning requirements or vary them ad hW c cx Second, whether a variance may be granted without sgostar tial detriment to the public good and without nullifYA-ngCgr o r`t'e w z n 0% o � 2 - y C7� U) BOOK 8552?U83 substantially derogating from the intent or purpose of such ordi- nance" is partly a question of fact, but all of the components or elements of the ultimate conclusion - the material subsidiary facts - are of record and undisputed. The proposed use of the property is entirely consistent with the heterogeneous residential neighborhood. There will be no detriment to the public good and no nullification or derogation of the intent or purpose of the by=law. 'For ene for,'agoxng reasons, the plaintiff is entitlttd :--o -a variance from the pertinent setback requirements of the Salem Zoning Ordinance. Of course-„ nothing herein shall be construed to limit the Board' s §10 authority reasonably to "impose condi- tions , safeguards and limitations” on the use of the property1/. So ordered. Dated: Q.6(,at�]� Harold Flannery stice of the Superior Court n � � 4.n J co -v1 o v The plaintiff also moves , pursuant to Mass. R. Civ. P. 53 (sic) and Superior Court Rule 18, for an award of costs resulting from the matter not being taken up at the first Board of Appeals meeting following the remand. The motion is denied. - 3 - , . . . . - - .. v � � � � w � a�� � �� � � c 4� � _ "r,,. ,,, ,_CJ . _. �.:` -- <n c\-)F �� Lr! F � ....�49�`� �_ 0' i 8 MICHAEL E. O'BRIEN LEONARD F. FEMINO CITY SOLICITOR ''� 'Y ASSISTANT CITY SOLICITOR 93 WASHINGTON STREET A`°"'�+�p0u 93 WASHINGTON STREET and and 81 WASHINGTON STREET CITY OF SALEM ONE BROADWAY SALEM, MA 01970 MASSACHUSETTS BEVERLY, MA 01915 - 745.4311 745.4311 744.3363 921.1990 Please Reply to 81 Washington Street Please Reply to One Broadway September 10 , 1986 James B. Hacker, Chairman Salem Board of Appeal One Salem Green Salem, Massachusetts 01970 Re: Maguire v Hacker Essex County Superior Court #86-402 Dear Mr. Hacker: In response to your inquiry regarding the above matter, 1 Please be advised I have reviewed the Judgment, Memorandum and Order in the above matter. It is.. my opinion that the Judgment operates as a grant of a variance from the set back requirements of the Zoning Ordinance and there is no need for the Board to grant a variance. However, it is further my opin- ion that the Board may impose such conditions, safeguards and limitations as it deems proper on the use of the property as a two-family dwelling. The courts have upheld requirements such as parking, buffer areas and building location to be proper matters of concern upon the grant of a variance If you desire additional information, please feel free to contact me. V y rul �u , hael E. O' Brien City Solicitor MEO/Jp cc: Cris Drucas , Esq. l R 0' s e MICHAEL E. O'BRIEN LEONARD F. FEMINO CITY SOLICITOR 5 ASSISTANT CITY SOLICITOR 93 WASHINGTON STREET �`0'u^m9"� 93 WASHINGTON STREET and and 81 WASHINGTON STREET CITY OF SALEM ONE BROADWAY SALEM, MA 01970 MASSACHUSETTS BEVERLY, MA01915 745-4311 745-4311 744-3363 921.1990 Please Reply to 81 Washington Street Please Reply to One Broadway September 15, 1986 James B. Hacker, Chairman Salem Board of Appeal One Salem Green Salem, Massachusetts 01970 Re : Maguire vs Hacker, et al Essex County Superior Court #86-402 Dear Mr. Hacker: As a follow-up to my -letter of September 10 ;. 1986 I am enclosing copies of correspondence between Attorney Drucas and the Judge who handled the above case: As you can see from Judge Flannery' s comments , the Board does not have to grant a variance. However, if the petitioner wishes a formal grant from the Board for title purposes, the Board should formally grant a variance; but only if the petitioner requests the same: I believe the Judge ' s comments regarding conditions are self-explanatory and the Board may impose conditions as it deems them necessary as outlined in my letter of September 10 , 1986. Very my yours s c ael E. O'Brie City Solicitor MEO/Jp Enclosures i \ ATTORNEY AT LAW ONE CHURCH STREET - `�` P ti.-11.1•:\I. \I:\tib:\('li l'til•:T'1'ti 019711 . AREA C,-UV P 45 C50C . . September 10 , 1986 J . Harold Flannery , Justice Norfolk Superior Court . 650 High Street Dedham, MA 02026 Re: Summary Judgment Memorandum and Order Maguire v . Hacker , et al . C .A . No. 86-402 Dear Judge Flannery I am writing this letter to you on behalf of my client, Robert M. Maguire , on whose behalf you entered Judgment in favor of the. plaintiff on his Motion for Summary Judgment on August 26 , 1986 , while you were sitting in Essex County Superior Court Motion Session'. I have enclosed herewith a copy of your Memorandum and Order and the Notice of Summary Judgment sent out ,by Mr . Nutting, the Assistant Clerk . There appears to be some confusion with reference to the City of Salem and their position with reference to your Judgment . The City of Salem has -taken the position that this matter must go back before the Board of Appeals , and, in. fact , have notified us to appear before the Board of Appeals on September 17 , 1986 for further review. In speaking with the Salem Building Inspector , there is a question in his mind as to whether or not the Variance has been granted by your Order . He has' stated that whether the variance has been granted or not, the matter must go back before the Board of Appeals so that the Board cad impose conditions on the variance . I have raised this matter. with the City Solicitor ;' ` Michael O 'Brien, and it is his position that the Order for Summary Judgment is not clear ,. although he believes that your Order grants . the variance: Secondly, the Building Inspector and City Solicitor. believe the Order which you entered is not clear as the second sentence requires that the .matter be brought back before the Board of Appeals . -2- It is my interpretation that your Order , with reference to the imposition of conditions , .safeguards and limitations , deals only with use of the property as permitted : in the appropriate zoning, district. Any uses which are not appropriate to the district in which the property is located . are . subject to the imposition of "conditions , safeguards and limitations " . Therefore , :it is my belief that , provided we are only using the structure fol a two-.family dwelling, that no other use will be made of the structure. as the locus is in a district which allows for two-family dwellings as a permitted use , that there 'is no reason to go back before the Board of Appeals . Finally, as this Order has to be filed in the Registry of Deeds in order to estabish the granting of the variance , it must be clear to Title Examiners that the variance was granted based upon the plans submitted . Mr . Hacker of the Board of Appeals has stated to me that the: Order , in his opinion, does not clearly state that to be the case and believes that the Board. of Appeals has the right to order that fences be put up, parking arrangements be changed or any other restrictions imposed that the Board feels are appropriate and that an additional Hearing by the Board would clarify the status of the variance for a Title Examiner . Accordingly , any .instruction or correspondence from you would be extremely helpful in this matter as for whatever reason the Board of Appeals of the City of Salem seems to to be acting contrary to the law and your Decision . Any assitance would be greatly appreciated and I thank you for your anticipated cooperation. pect ly, hr is cas CD/dkm enclosure CC: Michael O 'Brien✓ Robert M. Maguire `i pR t �`t`� �`4Q Fo��Ephp,, COMMONWEALTH OF MASSACHUSETTS - ��\ - THE SUPERIOR COURT DEDHAM. MA 02025 - September 11 , 195.6 zso _ cin S- reet iyi0 Re : Maguire v. Hacker ( C . A. No. 80 Essex Superior Gcurt ) ea_ :._-,utas : 11r.As = : ers to ,,,cur letter to me of Sentember 10 , 1956 , roncer ,lnF m Memorandum and Crder of Auy ust 26 and the O�,der c -_ugust 27 , 1980 , in the above matter . -ne claintiff is entitled to the variance he seeks and m; reference to the hermit grarting authority ' s imnositior. of "conditions , safeguards and limitations" is based on the. second paragraph of c . 40A, §10 . Nothing in my Memorandum requires the Board to impose any conditions ; nor need the matter go before the Board again , except perhaps for the formality of issuing the variance in compliance with my Order, unless the Board decides to impose conditions, in which event the plaintiff may wish to be heard there . I trust that the foregoing information is responsive to your inquiry . However, I must point out that correspondence between one party and the Court is not a satisfactory way of seeking clarification (or anything else ) in this matter. If anything further is .required, move formally for it with notice to the defendants . Please transmit a copy of this letter to the City Solicitor. Very truly yours , Harold Flannery ustice of the Superior .Court JHF: cfn cc : Donald E. Nutting, Superior Court Clerk Otu of alem £tts� c usetfs } % Pnttrb of hmal u I CONDITIONS TO BE ATTACHED TO THE SU14MARY JUDGEMENT OF J . HAROLD FLANNERY DATED AUGUST 26, 1986 BY THE PARTIES OF ROBERT M. MAGUIRE TR. (PLAINTIFF) VS JAMES HACKER, ET AI. (DEFENDANTS) SUPERIOR COURT CIVIL ACTION #86-402 In accordance with Judge Flannery`s decree the Board of Appeal exercises its- authority to reasonably impose the following safeguards and limitations at 2 Lawrence St. a/k/a 165 Ocean Ave. , Salem. T. A six (6) foot stockade fence be built on the south side of the boundary line running the entire length of the property; 2. Parking plan be modified so that the two (2) spaces on the corner of Ocean Ave. and Lawrence St. be moved closer to the fence so as to maximize the open space to the intersection; 3. A Certificate of Occupancy for each unit be obtained. mes B. Hanker, Chairman l _ a.auniq ` Ctu of "ittlem, �Rttssnrhusetts , v Poarb of �Fpeal September 30, 1986 Michael O'Brien City Solicitor City of Salem Dear Mr. O'Brien: Please notethe following conditions concerning the Summary Judgement relative to 2 Lawrence St. a/k/a 165 Ocean Ave. This Board whisheB to have this properly attached and cross referenced per our earlier discussion to the courts decision. Sincerely, James B. Hacker Chairman JBH:bms Enclosed: Summary Judgement Board of Appeal conditions L LOT / 38 o 124 . 3 ' - 0 5 * ' LOT /35 � LO / 39 s8' - o " E 30. 1 ' 1 � 5,720 - SF cu PROPOSED DUPLEX p w y ro z DWELLING W W r- - — i 1 F —co — T - - � w � I I I 1 130 I I ' 2 ) 3/4 " COPPER OCEAN N WATER SERVICES J--e- 5 SANITARY SEWER ��0 w S CONNECTION - - - w - - - {Y - - - - - - 6 WATER —� W - - - SMH 0 5' S S 8" SANITARY S SEWER INV. 9. 20 <-- FLOW AVENUE PROPOSED SITE PLAN OF LAND LOCATED IN SALEM. MASS. PREPARED BY ZONE R- 2 RESIDENTIAL TWO FAMILY EASrERIV LAID &IRVEY ASSOCIATES, IIVC. LOT AREA 1500 SF CHRISWPHER F'i . 04EL LO P. L. S. _ LOT COVERAGE 35 °(° FRONTAGE 100 40 LOWELL ST. PEABODY, MASS. FRONT YARD 15 SIDE YARD 10 ' SCALE 1" = 10' MAY I , 1985 REAR YARD 30' i i DEED REFERENCE BK 7443 PG 273 - - - � 0 5 10 20 30 40 F5?Z4 i