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65 MASON STREET - COSTA, LEONARD - ZBA 65 Mason St. Leonard Costa of "SaIrm, fflassac4uoeffs Appeal 3 PH '86 FILE C IT DECISION ON THE PETITION OF LEONARD S. BONFANTI, TR. FOR AN APPEAL OF THE BUILDING INSPECTORS DECISION REGARDING 65 MASON ST. , SALEM The petition was withdrawn by the ,petition WITH PREJUDICE �Iames M. Fleming, MembV CITY OF SALEM ZONING BOARD OF APPEALS APPEAL FROM A DECISION OF THE BUILDING INSPECTOR OF THE CITY OF SALEM Leonard S. Bonfanti ', Trustee of Ruth Realty Trust, Appellant PRELIMINARY STATEMENT This is an appeal pursuant to General Laws Ch. 40A' Secs . 8 and 15 from the Decision of the Building Inspector dated May 28, 1986 in response to a request from the Appellant, Leonard S. Bonfanti , dated May 23-, 1986 that no more than four ( 4) occupancy permits issue for a dwelling house located at 65 Mason Street' Salem, Essex County, Massachusetts . Copies of the Decision of the Building Inspector and the request of the Appellant are attached hereto as Exhibits A and B, respectively. The Appellant is the owner of real estate located at 67-71 Mason Street, Salem, Essex County' Massachusetts , which directly abuts the premises which are the subject of this appeal . STATEMENT OF GROUNDS As grounds for this appeal , Appellant states as follows : 1 . The building at 65 Mason Street, Salem, Massachusetts is located in an Industrial zoning district. ANKELES,HARMON &BONFANT) COUNSEUORS AT LAW 27 LOWELL STREET PEABODY.MA 019�- (61�531-70M Ml-7"4 Page 2 2. Pursuant to the provisions of Sections V (A) ( 6) and ( 8) and of Sections V (B) ( 6) 9 ( 7) and ( 8) , residential uses are not permitted either by right or by special permit in an Industrial zoning district . 3. During 1984, a fire occurred on the premises at 65 Mason Street which resulted in substantial damage to the structure. 4. On April 29, 1985 , the owner of the property, Leonard Costa , of 17 Forester Street ' Salem, Massachusetts -, applied for a permit to rehabilitate the structure-, stating on his application that the dwelling would house six ( 6) families . A copy of the Application for the Permit to Build is attached hereto as Exhibit C.- 1 5. It appears from the documents on file with the office of the Building Inspector that the building permit for rehabilitation of the structure as a six ( 6) family dwelling was issued on the sole basis of information contained in the application. 6. A dispute has arisen as to whether the premises constituted a valid pre -existing non-conforming use prior to the fire. 7 . The owner , Leonard Costa , has asserted that , prior to the fire , the premises were used on a continuing basis as a six ANKELES,HARMON ( 6) family dwelling . He has obtained the affidavits of Spiros &BONFANT] COUNSELLORS AT LAW P_. Flomp , his predecessor in title , and Harry Kenney , Mr. R7 LOWELL STREET PEABODY.MA 019W Flomp 's predecessor in title, in support of his assertion. (617)531-70� 581-7"4 Page 3 Copies of the affidavits of Mr. Flomp and Mr. Kenney are attached hereto as Exhibits D and E, respectively.- 8. The Appellant-, Leonard S. Bonfanti , asserts that if the premises were ever used as a six ( 6) family dwelling , that use was extinguished by virtue of its abandonment during the period from 1977 through 1982. Mr . Bonfanti has obtained the affidavit of Raymond Trainor who, pursuant to an agreement with Mr. Flomp, had an interest in and operated the premises during said period as a four ( 4) family dwelling. A copy of the affidavit of Mr. Trainor is attached hereto as Exhibit F. 9. The records maintained in the office of the Building Inspector indicate that at no time were occupancy permits ever issued for six ( 6) dwelling units on the premises . 10. Section VII ( C) ( 3) of the Zoning Ordinance of the City of Salem states that -, " If any. . .non-conforming use of land is discontinued for any reason for a period of twelve (12) consecutive months , then a subsequent use of such land shall conform to the regulations specified by this ordinance for the district in which such land is located. " 11 . On May 23, 1986 the Appellant , by his attorneys , requested that the Building Inspector determine , based upon the affidavit provided by Raymond Trainor and the non-existence of ANKELES,HARMON prior occupancy permits for six ( 6) dwelling units , that the use &BONFANTE COUNSELLORS AT LAW of the premises at 65 Mason Street as a six ( 6) family dwelling 27 LOWELL STREET PEABODY,MA 019W would constitute a violation of the use regulations of the Salem (61 n 53t-7WU 581-7� Page 4 Zoning Ordinance and requested that the Building Inspector decline to issue occupancy permits or revoke any permits already issued. 12 . The Building Inspector by letter dated May 28 , 1986� decided , in writing , that the property could properly be used as a six ( 6) family dwelling. For the reasons set forth above , Appellant asserts that any use of the premises at 6S Mason Street as a six ( 6) family dwelling in the absence of occupancy permits for six ( 6) separate units was an invalid use. Appellant further asserts that any valid use of the premises as a six ( 6) family dwelling was abandoned during the period from 1977 to 1982 and may not now be revived under any circumstances . Appellant, therefore, requests that the Board of Appeals determine that the use of the premises at 65 Mason Street for dwelling purposes does not constitute a continuation of a valid pre -existing , non-conforming use and is , therefore, prohibited. Appellant further requests that this Honorable Board : 1 . Revoke the building permit dated April 30 , 1985; 2. Order or cause the Building Inspector of the City of Salem to order that Leonard Costa cease and desist from any further construction or alteration pursuant to said building ANKELES,HARMON permit ; &BONFANTI COUNSELLORS AT LAW 3. That occupancy permits for use of the premises as a six 27 LOWELL STREET PEABODY,MA 019� ( 6) family dwelling be revoked ; (517)531-7� 5EH-7444 Page 5 4. That occupancy permits for use of the premises as a six ( 6) family dwelling , if not yet issued , be denied. Respectfully submitted, LEONARD S. BONFANTI, TRUSTEE RUTH REALTY TRUST By his attorneys , ANKELES, HARMON & BONFANTI By Peter/ J./Arvanites 27 LdjjzIl Street Peabody , MA 01960 531- 7000 Dated : June 26 , 1986 ANKELES,HARMON &BONFANTI COUNSELLORS AT LAW 27 LOWEI-L STREET PEABODY.MA 01� (6t7)531-7� 581-7. Exhibit A Ctv of '*alenl' Assar4usletts ann 04- .40o; ]Jublic 'PropertV Peparhund i William H. ftnroe One Salem �9reen 745-0213 May 28, 1986 Ankeles, Harman & Bonfanti Counsellors at Law 27 Lowell Street Peabody, MA 01960 RE: 65 Mason Street, Salem, MA Dear Sirs, Upon receipt of your letter of May 23, 1986 and consulting with my boss Mr. Munroe on the above referenced property the following is decided. It is the opinion of this office that the building permit now inplace issued April 30, 1985 should so remain. While there seems to be some conflicting statements made by a Mr. Raymond Trainor in his letter of May 17, 1986 we feel that the benefit of doubt is in favor of the current property owner Mr. Leonard Costa. Should there be any further communication on this matter feel free to contact us. Respectfully,,-----,, Erg ad .5 a q 4Z� Asst. Building Inspector EJP/jdg C.C. : file Exhibit B ANKELES, HARMON F6 BONFANTI COUNSELLORS AT LAW 27"AI Sl,�t PEABODY, MASS. 01960 HARR� AN�ELEG AREA CODE 617 MARSHAL�E HARMON 53 1-7000 C. V� I Z William H. Munroe, Building Inspector City of Salem city Hall Salem, MA 01970 RE: 65 Mason Street, Salem, MA Dear Mr. Munroe : As you know, this office represents Leonard S . Bonfanti and Bonnie Leathers, Inc. of 57-71 Mason Street, Salem, MA. You may recall that there had been correspondence between this office and yours concerning the issuance of building permits on April 30, 1985, for renovation of the premises located at 65 Mason Street, for use as a six-family dwelling. At that time, it was the position of this office and Mr. Bonfanti that since the pre-existing,non-conforming use of the premises was as a four-family dwelling, issuance of a permit and subsequent occupancy permits for six units violated zoning and the provisions of Chapter 40A. On April 11 , 1986, after having reviewed statements from Spiros Flomp and from Harry Kenney, you furnished your written opinion that your examination of the premises together with the statementscaused to conclude that the premises had in fact contained six dwelling units prior to the fire which damaged the building and necessitated the renovations which were recently performed. Since your determination, we have received additional information pertaining to the use of the premises during the periods from 1977 through 1982 from Mr. Raymond Trainor, who, in fact, was the owner and manager of the building during that time period. As you can see from Mr. Trainor ' s statement, the premises were not used as a six-family dwelling as stated in Mr. Flomp ' s earlier statement to you, but rather, were suitable only for use as four dwelling and, in fact, were so used. Moreover, there is no evidence that we have been able to 7 ANKELES, HARMON G BONFANTI Page 2 locate indicating that occupancy permits were ever issued for six-dwelling units in the building. Balsed uPon the foregoing, request is made that you Very truly yours, 1,NKELES , HARMON & BONFANTI By Peter J. es PJA/mp cc: Mr. Leo S. Bonfanti 69-71 Mason Street Salem, MA 01970 Exhibit D 50 3road Street Salem9�.a. 01970 In February 9 , 1986 CITY �IF Si�LL;�,MASS, Building Inspector City of Salem 01970 Dear hir.Munroel I owned the property at 65 T.'Iason Street Salem , ;;-a.frc)m 1971 1, 1 until 1960 when I transfered it to Mr .Costa.I bought it as a six (6') family house .while I owned itsit was a six�6)family house .It consisted of sixk6) seperate apartments , each having a private bath and kitchen . If I can answer any other questions concerning this -property$ kindly feel free to call . Yours Trulyq 6piros P.Flomp COMMONWEALTH OF MASSACHUSETTS ESSEX, ss February 9 , 1986 Then personally appeared before me Spiros P. Flomp, known to me , who beina first duly sworn , stated that the foregoing statement is true. William H.K. Donaldson, Notary Public my commission expires 4/17/92 Exhibit E AFFIDAVIT I. the undersigned Harry Kenney , on oath depose and say : That on August 23 , 1961 1 purchased the multi-family house at 65 Mason Street , Salem, Massachusetts from William Manning, a Salem Realtor , b., Deed recorded with Essex South District Registry of Deeds , Book 4808 , Page 15 . Mir . Manning sold the house to me as a six apartment dwelling and 1 so operated it as landlord as long as I owned it . The building had six apartments , each withseparate kitchen and bathroom. Except for vacancies from time to time , the property during my ownership was always rented to si- different tenants . On August 18 , 1972 1 sold 65 Mason Street , Salem, Massachu- setts to Spiros Flomp as a six family apartment house by Deed recorded with Essex -South District Registry of Deeds , Book 5896 , Page 781 . Executed under the pains and penalties of perjury this 23rd day of january , ! 986 . /7C/�� ------------- Harry Kenney Route 111 Sanford, Maine 04073 Exhibit F May 17 , 1986 J .CITY cic Mr . Munroe City Building Inspector City of Salem Salem, MA 01970 Re: Property located at 65 Mason Street Salem, MA 01970 Dear Mr. Munroe, I purchased the above referenced property from Mr. Spiros P. Flomp on paper from the years 1977 thru 1982 . The property was never rented as a six (6) family house nor sold to me as a six (6) family because it did not have private baths or kitchens. The two (2) rooms in the attic were used for storage only. I occupied the first floor front apartment and the second floor front apartment . The remaining two (2 ) apartments in the rear of the building were the only other apartments available for rent . If that house had any more rooms that could legally have been rented, I would have done so and collected the rents. In 1982 1 won an eviction case against one of my tenants . That same tenant filed an appeal case which she won. In that same year, I gave the property back to Mr . Flomp since I had no further use for the property or the aggravation that came with it . Very truly yours, Raymo�d Trainor 11 Ferry Road Salisbury, MA 01950 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss May 17 , 1986 Then personally appeared before me Robert Brown, known.. to me , who being first duly sworn, stated that the foregoing statement is true. ved by the Inspector before a permit for erection will be granted, appro 1j'ates Of which when approved by the Inspector shall be kept at the building, during dup the progress of the work. Exhibit c City of Salem Ward- 4 LICENSE APPLICATION TEL.# FOR PERMIT TO BUILD ADDITION OR MAKE ALTERATIONS saiern mass., Y TO THE INSPECTOR OF BUILDINGS: The undersigned hereby applies for a permit to build according to the following specifications: Owner's name and address L E v A Ye E) COS T/i L '/'t A I Lt-40 tr P-S So c__9 -4 r4hitect s name Iff t* Mechanic's name and address L 6-JVA)?D C f3-S / 7 Location of building, No. C. t4 ic o ri r What is the purpose of building? t=_71 P /0 C P_ Material of building? V400 D r—R 1-4 If a dwelling, for how many families? Size of Addition: No. of feet front,—; No. of feet rear,—; No. of feet deep, No. of stories? No. of feet from the level of the ground to the highest part of the roof? How near line of the street? S P—&ol How near line of thi adjoining lot? 5 (�:Vy n What will be the means of access to the rcof? S ky Size of floor timbers, Ist—; 2nd.; 3rd—; 4Lh—; Sth S pan,— Distance on centers? Size of carrying timbers?— Distance of supports on centers? What kind of support? Will the building be erected on solid or filled IaDd? What is the material of foundation? IC/'0 61q 40 A-? Will the roof be flat, pitebed, mansard or gambrel? Material of roof covering? /_'� Will the building be heated by steam or hot water or hot air?— ffo r) I I? 77/ c,—r4,,.,r'2f� No. of brick walls? Where located? Thickness? '�Vill the buildlig conform to t'he requirements of the law? r-5 Esti-mated-co Signature of applicar__�_ REMARKS Ron ve e�4 4f �p Z�u C!�� Ward APPLICATION FOR PERMIT TO BUILD ADDITION OR MAKE ALTERATIONS L�lcatio PERMIT GRANTED 19 19 Approved BuildsnZ inspicter i jai 101,