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41,27 MEMORIAL DRIVE, ESSEX STREET - ZBA 41 MEMORIAL DRIVE/ 27 ESSEX ST. EXT. (R-1 ) - McNeil Associates, Inc. (P) City of Salem (0) l �V ��,covvnl� - 4�'._ (gitg of Salem, ageac fusetts ? " Puttrbr of App=1 DECISION � N'�THE PETITION OF MCNEIL & ASSOCIATES, INC. j :J. ,FOR VARIANCES FOR 41 MEMORIAL DRIVE/27 ESSEX STREET EXTENSION A hearing on this petition was held on June 13, 1984 with the following Board Members present: James Hacker, Chairman; Messrs., Charms, Gauthier, Luzinski and Strout. 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 requests Variances from requirements of use and minimum width of .side yard in order to construct thirty six (36) townhouse, multifamily condo- minium units in this R-1 district. The property is owned by the City of Salem. The Variance which has been requested may be granted upon a finding of the Board that: . a. special conditions and circumstances exist which especially affect the land, building or structure involved and which are not generally affecting other lands, buildings and structures in the same district; b. literal enforcement of the provisions of the Zoning Ordinance would in- volve substantial hardship, financial or otherwise, to petitioner; 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. The Board of Appeal, after hearing the evidence presented at the hearing, and after viewing the plans, makes the following findings of fact: 1 . The property can be developed in an economically profitable manner by building single family homes within the requirements of the Zoning Ordinance. On the basis of the above findings of fact, and on the evidence presented at the hearing, the Board concludes as follows: 1 . There is no substantial hardship caused by a literal enforcement of the Zoning Ordinance. Therefore, by a vote of three to two, the Board of Appeal denied the petitioner's_ request for Variances. APPEAL F'G:�i '.:... ;:_!'I;:CB, G ANY, SHALL BE LADE PJRSUANT TO SECTION 17 OF THE MASS. GENERA 7 � � G]$, AND SHALL BE Fi ED3 V T HAT l 20 DAYS AFTER THE DE OF FICIN, ` -� � � `'t� - OF Ti 'S i HIE I, 071`11- OF THE rTf. CLERK. C� P1F. -_. „4'_ !.;:':S. CHAPTER 803. SECT:)'l 11. THE VARIANCE O$cot,L, F_,_.CParnas, Secretary G%�' '.cD �• ... - T-„E EFi ECi UNTOL A C ?Y OF THECECI J .{ T' A ZOPYi OF?THIS DECISION •HASNCBE2U.!FILED WITiS. THE PLANNING BOARD AND THE CITY CLERK � 'Y -: -AL HAS FILE T!I::T IT HHS BEEN IS .7 :3 :I'D IS ,:N ESSEX 2ECISTRY OF DEPS AND HIDE%EO UNDE.', i.1 0r THE G't:!._. OF RECORD cE a Ji:DEO ANJ NOTED C{ THE 071NER'S CERTIFICATE OF TITLE. - BOARD OF APPEAL 00A110 (IF APP 04.� 56 RESALE ph1A5, MICHAEL E.Fjg1VI& CITY OF SALEM CITYSOLIITOR MASSACHUSETTS MARY P. HARRINGTON 93 WASHINGTON STREET ASSISTANT CITY SOLICITOR and 93 WASHINGTON STREET 187 FEDERAL STREET and SALEM,MA 01870 59 FEDERAL STREET 7464311 _ SALEM, MA 01970 7443383 - - 7440350 Please Reply to 187 Federal Street Please Reply to 59 Federal Street May 4 , 1984 James B. Hacker, Chairman Board of-'Appeals City of Salem One Salem Green Salem, Massachusetts 01970 Re: Old Health Hospital Dear Mr. Hacker: This is to acknowledge your telephone call of April 25, 1984 and letter of April 26 , 1984 relative to the petition before your board by McNeil & Associates concerning the above. It is my opinion that the petitioner has no standing before your board because the City of Salem is the owner of the -property and the purported sales agreement -is invalid. " t I am enclosing a copy of a previously rendered legal opinion which details the basis of my position. If I can be of further as- sistance, please feel free to contact me. y ruly yours_ / , Mi hael E. O'Brien City Solicitor MEO/jp Enclosure cc: Anthony V. Salvo, Mayor Salem Historical Commission CITY HALL, SALEM. MASS. 01970 June 12, 1984 Mr. James Hacker, Chairman Board of Appeal City of Salem One Salem Green Salem, MA 01970 Dear Mr. Hacker: With reference to the petition before your board by McNeil Associates, Inc., the Salem Historical Commission would like to voice its strong and unanimous opposition for any plan calling for removal of the old Chronic Health Care Hospital. The building in question is a National Register eligible structure which citizens throughout the City of Salem recognize as one of our unique landmarks. Its location, style and purpose speak of a period of American cultural, social and architectural history. Its continued presence allows us to reflect on the ideas of health care and urbanity which led its builders to locate it in what was then a rural setting. Without the building, the city loses a part of its cultural and architectural past. The Commission feels a variance should not be granted from the City's zoning ordinances in a case where the plan proposed makes this negative impact on our historic resources. The Commission is, however, most enthu- siastic about the prospect of development at the Health Hospital site which includes the Health Hospital. The mix of new and old structures is typical of the City of Salem. This mix was part of McNeil Associates' original plan and could be most successfully accomplished given the significant Federal tax advantages for historic rehabilitation of National Register eligible buildings. Our Commission would be happy to assist the developer in working out such a proposal and certifying the work for these tax advantages. Please feel free to call upon us if I can be of further assistance. Very truly yours, e/� ( � E1 abeth B. Wheaton Chairman d EBW/Jp cc: Mayor Salvo G. Kavanaugh r� June 23 1983 fn�j In City Council September 22, 19 ✓ Reconsideration voted r.c.v. 6-5t Martineau-move question,-denied U martitieau-adjourn-defeated 2 ;mak: .. , Fleming-move question denied r.c.v .-9r •., - 5-6-0 O'Keefe - how many votes req. Chair rules 8 Report of Committee on _ _ O'Keefe requested pres, read Wayland opinion-Fleming &Martineau Comunity Develoment .__..._. "opposed" adoption of recarmendation of Cannittee in the matter of defeated r.c.v. 6-5-0 Sale of Old Health Hospital 0 a � o ME �C= a 0 c-D In City ouncil Report accepted, x mdapbA 'abled until next mtg. r.c.v. 7-4-0 n City Council July 21, 1983 City Clerk otion to take fran table defeated r.c.v. 5-5-1 n City Council September 8, 1983 Eaken from.-table r.c.v. 6-5-0 Fleming-moved question voted r.c.v. 6-5-0 .lair rules 8 votes required ale defeated by r.c.v. 6-5-0 C. O'Keefe - reconsider at next mtg. Ctv of "Sak c, One �$alem 6ruurt May 21, 1984 Mr. James Hacker, Chairman RE: Petition of McNeil and Associates Board of Appeal for a variance to develop thirty-six One Salem Green condominium units at 41 Memorial Drive/ Salem, MA. 01970 27 Essex Street Dear Mr. Hacker: The Planning Board reviewed the upcoming Board of Appeal agenda at its reg- ular meeting on Thursday, May 17. At that time, Mr. Thomas Southworth of McNeil and Associates reviewed its proposal for the development of the former Health Hospital site at 41 Memorial Drive/27 Essex Street. The Planning Board is supportive of this type of development for the site. However, the Board would very much like to have continued input into the project. With the granting of the requested variance, the pervue of the Plan- . nin Board over the y end. We would, therefore, respectfully g project.,ma request that the Board of Appeal consider conditioning its approval of the ' variance with the provision that the Planning Board have site plan approval over the project. The developer has indicated his intention to continue working with the Planning Board and we are looking forward to a cooperative and productive relationship. Mr. Gerard Kavanaugh, City Planner, is available to discuss this matter with you further should you so desire. We appreciate this opportunity to work cooperatively with you. Sincerely yours, Kenneth S. May a /� Vice-chairman CEJ( U dey cove gO�;RD OF�PPEA;,. � a 3 � 1 tMl 1 �o 56 MICHAEL E. O'BRIEN RECE]VAITY{(1F SALEM CITY SOLICITOR SAi_MAMA&HUSETTS MARY P. HARRINGTON 93 WASHINGTON STREET CITY Q� ASSISTANT CITY SOLICITOR and 93 WASHINGTON STREET 187 FEDERAL STREET and SALEM,MA 01970 59 FEDERAL STREET 7454311 SALEM, MA 01970 7443383 7440350 Please Reply to 187 Federal Street Please Reply to 59 Federal Street April 18, 1984 Richard E. Swiniuch Councillor-at-Large 20 New Derby Street Salem, Massachusetts 01970 Re: Sale of Old Health Hospital (.Council Order #656 of 1983) Dear Councillor Swiniuch You have requested my opinion regarding the .legality of the purported purchase and sale agreement executed by the immediate past mayor ten days before leaving office concerning the sale of city land and buildings located at the former health hospital site on Memorial Drive. In the preparation of this opinion I have reviewed the vote of the City Council, the purported agreement, the Code Ordinances of the City of Salem, the General Laws of the Commonwealth and Cushing ' s Manual of Parliamentary Practice. The records of the city clerk indicate that the matter came be- fore the city council on September 8r 1983 (Order #656 of 1983) where , after discussion, the record reflects the council voted six (6) yeas and five (5) nays to authorize the. mayor to sell the property in ques- tion. The record further reflects that the president declared that the vote was defeated as it required a 2/3rds vote (8) . A member served notice of reconsideration- of the matter at the next meeting of the city council. On September 22, 1983 the matter was reconsidered. The presi- dent of the council ruled eight (8) votes necessary for passage and the council voted six (6) yeas and five (5) nays. The president of the coun- cil ruled the matter defeated and the records of the city clerk indicate the matter "defeated" . Subsequently, on December 22, 1983 , the immediate past mayor of the City signed a purported "contract for sale of land for private development" pursuant to terms of the original council 'order and filed the same with the city clerk with a cover letter.It is interesting to note that the City Clerk made the following notation on. the cover let- ter: "Not filed as a contract - matter not adopted by the city council . " Richard E. Swiniuch - 2 April 18 , 1984 Massachusetts General Laws Chapter 40, Section 3 gives authority to. the city council of a city to sell corporate real estate and makes no reference to whether a majority vote or 2/3rds vote is necessary in order to effectuate the same. Massachusetts General Laws, Chapter 43 , Section 18 established the minimum of. votes required by law, if no stat- ute specifies the number of votes required. In part, Section 18 provides . . the affirmative vote of a majority of all of the members of the council shall be necessary to adopt any motion, resolution or ordinance . " Cushing' s Manual of Parliamentary Practicer Sec. 23a (John C. Winston Co. , copyright 1947) which .governs the rules of the city council holds that a proposition is carried by "a majority of votes cast" .However, Section 25 of Cushing's Manual states that a legislative body has the power to establish its own rulesas to the number of votes needed greater than a simple majority in various matters if there is no statute to the contrary. According to the Salem Code of Ordinances Section 3, Appendix A "The pre- sident (of a city council) shall decide all questions of order, sub- ject to an appeal to the council by motion regularly seconded ' . Section 3 further states "He (the president) shall declare all votes" . Section 34 Appendix A of the Salem Code of Ordinances provides for the specific method of appealing a decision of the president of the Council . In the instant case the decision of the president was not appealed and the case law in Massachusetts tends to hold that where there is no objection to a ruling by a presiding officer, there is a presumption of regularity in his ruling. Putnam v Langley, 133 Mass 204 ; Williams v Gloucester, 148 Mass . 256 , 19 N.E. 348; Keough v Board of Aldermen of Holyoke, 156 Mass . 403, 31 N.E .. 387; Bryant v Pittsfield, 199Mass.5530 , 532 , 85 N.E. 739; Coleman v Louison, et a s , D N. . n 46. In the instant vote, either because of past custom or rule , the president of the council ruled a 2/3rds vote was necessary and his ruling was not appealed from. Accordingly, , it is my opinion that the purported agreement is invalid as it was not approved by a vote of the city council and is so noted in the records of the city clerk . In summary, I answer the questions raised in your letter to me as follows: 1. Yes 2 . :done 3. None . Ve truly yours < - �- Michael E. O'Brien l City Solicitor MEO/jp cc: Mayor Anthony V. Salvo Council President Jean Marie Rochna City Clerk '�J''Rel"M6 LP'14Y MICHAEL E. O'BRIEN CITY OF SALEM CITY SOLICITOR MASSACHUSETTS MARY P. HARRINGTON 93 WASHINGTON STREET - ASSISTANT CITY SOLICITOR and - 93 WASHINGTON STREET 187 FEDERAL STREET and SALEM,MA 01970 59 FEDERAL STREET " 7454311 - SALEM, MA 01970 744.3363 7440350 Please Reply to 187 Federal Street Please Reply to 59 Federal Street April 18, 1984 Thomas Southworth Assistant Vice President McNiel & Associates , Inc. P .O. Box 407 420 Providence Highway Westwood, Massachusetts 02090 Re: Sale of Old Health Hospital (Council Order #656 of 1983) Dear Mr. Southworth; This is to acknowledge receipt of your letter of April 6 , 1984 . Councillor Richard W. Swiniuch' has asked me for an opinion as to the legal sufficiency of the purported agreement you made reference to in your letter. I have advised Councillor Swiniuch. that there . is no legal sufficiency to the agreement as is so noted on the face of the City Council votes of September 8, 1983 and September 22 , 1983 defeating the sale agreement entitled "Contract for Sale of Land for Private Development" . I am enclosing a copy of my opinion to Councillor Swiniuch along with a copy of the Council vote which clearly indicates .the proposal was "defeated" . If you have any {suesticrls, plelose do not hesitate to Contact me. Very my your J Michael E . O'Brien City Solicitor MEO/Jp Enclosure cc: Mayor Anthony V. Salvo President Jean Marie Rochna City Clerk Board of Appeals Design Review Board Conservation Commission U.S. Army Corps of Engineers COPY FOR YOUR INFORMATION ,g u�eoiuixe NV- MICHAEL E.O'BRIEN CITY OF SALEM CITY SOLICITOR MASSACHUSETTS MARY P. HARRINGTON 93 WASHINGTON STREET ASSISTANT CITY SOLICITOR and 93 WASHINGTON STREET 187 FEDERAL STREET and SALEM,MA 01970 - 59 FEDERAL STREET 7454311 SALEM, MA 01970 7443363 7440350 Please Reply to 187 Federal Street - Please Reply to 59 Federal Street April 18 , 1984 Richard E. Swiniuch �ounciiior-at-Large 20 New Derby Street Salem, Massachusetts 01970 Re: Sale of Old Health Hospital (Council Order #656 of 1983) Dear Councillor Swiniuch: You have requested my opinion regarding the legality of the purported purchase and sale agreement executed by the immediate past mayor ten days before leaving office concerning the sale of city land and buildings located at the former health hospital site on Memorial Drive. In the preparation of this opinion I have reviewed the vote of the City Council, the purported agreement, the Code Ordinances of the City of Salem, the General Laws of the Commonwealth and Cushing' s Manual of Parliamentary Practice. The records of the city clerk indicate that the matter came be- fore the city council on September 8, 1983 (Order #656 of 1983) where , after discussion, the record reflects the council voted six (6) yeas and five (5) naps to authorize the mayor to sell the property in ques- tion. The record further reflects that the president declared that the vote was defeated as it required a 2/3rds vote (8) . A member served notice of reconsideration of the matter at the next meeting of the city council. On September 22, 1983 the matter was reconsidered. The presi- dent of the council ruled eight (8) votes necessary for passage and the council voted six (6) yeas and five (.5) nays . The president of the coun- cil ruled the matter defeated and the records of the city clerk indicate the matter "defeated" . Subsequently, on December 22, 1983 , the immediate past mayor of the City signed a purported "contract for sale of land for private development" pursuant to terms of the original council 'order and filed the same with the city clerk with a cover letter.It is interesting to note that the City Clerk made the following notation on the cover let- ter: "Not filed as a contract - matter not adopted by the city council. " Richard E. Swiniuch - 2 - April 18 , 1984 Massachusetts General Laws Chapter 40, Section 3 gives authority to the city council of a .city to sell corporate real estate and makes no reference to whether a majority vote or 2/3rds vote is necessary in order to effectuate the same. Massachusetts General Laws , Chapter 43 , Section 18 established the minimum of votes required by law, if no stat- ute specifies the number of votes required. In part, Section 18 provides . . the affirmative vote of a majority of all of the members of the council shall be necessary to adopt any motion, resolution or ordinance . " Cushing' s Manual of Parliamentary Practice, Sec . 23a (John C . Winston Co. , copyright 1947) which governs the rules of the city council holds that a proposition is .carried by "a majority of votes cast" . However, Section 25 of Cushing's Manual states that a legislative body has the power to establish its own rules as to the number of votes needed greater than a simple majority in various matters if there .is no statute to the contrary. According to the Salem Code of Ordinances Sept-i.nn 3 , Appendix A "The pre- sident (.of a city council) . shall decide all questions of order, sub- ject to an appeal to the council by motion regularly seconded " . Section 3 further states "He (the president) shall declare all votes" . Section 34 Appendix A of the Salem Code of Ordinances provides for the specific method of appealing a decision of the president of the Council . In the instant case the decision of the president was not appealed and the case law in Massachusetts tends to hold that where there is no objection to a ruling by a presiding officer, there is a presumption of regularity in his ruling. Putnam v Langley, 133 Mass 204; Williams v Gloucester, 148 Mass. 256 , 19 N.E. 348; Keough y Board of Aldermen of Holyoke , 156 Mass. 403, 31 N.E . 387; Bryant v Pittsfield, 199 Mass . 530 , 532 , 85 N.E. 739,; Coleman v Louison, et a s , D N.E. 2nd 46 . 'In the instant vote, either because of past custom or rule , the president of the council ruled a 2/3rds vote was necessary and his ruling was not appealed from. Accordingly, it is my opinion that the purported agreement is invalid as it was not approved by a vote of the city council and is so noted in the records of the city clerk . In summary, I answer the questions raised in your letter to me as . follows : 1. Yes s.. None 3. None. /— Ve Atr�uly yours Michael E. O'Brien City Solicitor MEO/jp cc: Mayor Anthony V. Salvo Council President Jean Marie Rochna City Clerk 3VOVed&.Associates, Inc. a� .. P.O.BOX 407,420 PROVIDENCE HIGHWAY,WESTWOOD,MA.02090 326.5800 April 6 , 1984 Zoning Board of Appeals One Salem Green Salem, MA 0,1970 Reference : Collins Cove Condominiums Salem, Massachusetts Dear Members of the Board: Pursuant to Section IX-E of the City of Salem Zoning Ordinance, we are submitting the enclosed applications , fees and exhibits necessary to petition the Zoning Board of Appeals for a variance to develop thirty-six (36) condominiums in a R-1 district. As the Board may recall , the City of Salem made a Public Solicitation for the development of the subject .property in the latter part of 1980. In accordance with the City's Guide- lines , our firm submitted a proposal for development of the property to the Salem Planning Department on October 15 , 1980 . Each development proposal that was submitted to the city was evaluated to determine the highest and best use for the site. On November 27, 1981 , our firm was designated to develop the subject property. On December 22 , 1983 , the firm of McNeil & Associates entered into a Purchase and Sale Agreement with the City of Salem for the construction of 36 townhouse condominiums on the subject property. We are submitting the enclosed application to the Zoning Board of Appeals in accordance with the aforementioned Purchase and Sale Agreement. If you have any questions , please do not hesitate to contact us . Very truly yours , McVmas & ASSOCI TES , INC. Th Sou worth Assistant Vice President TS : lg t Enclosures .?VfNeil&.Associates, Inc. oga . P.O.BOX 407,420 PROVIDENCE HIGHWAY,WESTWOOD,MA.02090 326-5800 May 23 , 1984 Zoning Board of Appeals One Salem Green Salem, MA 01970 Reference: Collins Cove Condominiums Dear Members of the Board : We appreciate the opportunity to meet with the Board this evening relative to our petition for a variance that would allow our firm to develop and construct 36 luxury condominium units. As you may recall , the City of Salem made a public solicita- tion for development of the property in the latter part of 1980. The City requested proposals that reflected the high- est and best use of the site. In accordance with the City'.s Guidelines, we submitted a proposal for development of the property to the Salem Planning Department on October 15, 1980. Our approach to the development of the Health Hospital site encompassed the following principal criteria: 1. Locating condominium units in a way that maximizes water views and minimizes visual impact upon the neighborhood. 2. Establishment of a low density in order that substantial open. space would remain throughout the site and allow for the preservation of many of the existing trees on the site. 3 . Development of a housing design that is compatible and reflective of architectural themes within the City. 4. Establishment of natural buffer zones combined with plantings and landscaping which will emphasize flowering shrubs and trees. Zoning Board of Appeals -2- May 23 , 1984 5. Construction of a natural walkway along the oceanfront perimeter of the site which will provide permanent public access to Collins Cove. 6. Construction of a docking-type facility which will allow for small boat launchings and temporary boat tie-ups. 7. Removal of existing structures on the site. On November 27, 1981 , our firm was designated to develop the subject property in accordance with the„guidelines outlined above. It is important to note that most of the criteria established for the development of the site, such as density, use,' access to Collins Cove and design concept, was determined with neighborhood input. On December 22 , 1983 , McNeil & Associates entered into a Purchase and Sale Agreement with the City for the construction of 36 condominium units on the subject site. Our Hearing before the Zoning Board of Appeals this evening is in accor- dance with the terms and conditions of the aforementioned Purchase and Sale Agreement. As part of our presentation to the Board this evening, we are providing you with written and oral testimony in support of our application for variance filed April 9 , 1984 with your Board requesting a variance to develop thirty-six (36) town- house, multi-family condominium dwellings in an R-1 District. The following exhibits are submitted herewith in support of our application. 1. Legal memorandum from Saul J. Feldman, Esq. 2 . "Exhibit A" , i .e. cost breakdown for a 15-unit single family subdivision. 3. Letter of designation. 4. Petition of support from neighborhood residents. 5. Photographs of site. In conclusion, we believe development of the property into 36 luxury condominiums reflects good site utilization is in keeping with the mixed use character of the neighborhood, is economically feasible and will provide a quality addition to the City ' s housing stock. Very truly yours , McNEIL & ASSOCIATES , INC. Thomas Southworth Assistant Vice President TS :lg Enclosures LAW OFFICE OF SAUL J. FELDMAN, P.C. 50 CONGRESS STREET • BOSTON, MASS. 02109 • (617) 523-1825 SAULJ. FELDMAN JAMES P. GAMERMAN May 23, 1984 Board of Appeals City of Salem Salem Green Salem, MA Re : McNeil & Associates, Inc. Petititon for Variance, Collins Cove, Memorial Drive and Essex Street Extension, Salem, Mass . (the "Site") Gentlemen: This letter/memorandum is submitted on behalf of McNeil & Associates , Inc. (the "petitioner") , in support of its application for Variance filed April 9, 1984, with this Board , requesting a variance to develop thirty-six (36) townhouse, multi-family condominium dwellings in an R-1 District. Pursuant to Section IX(E) (Variances) of the Salem Zoning Ordinances, petitioner seeks a variance from the following sections of the Salem Zoning Ordinances : (1) Section V(A) (1) , (Use Regulations) to allow condominium residences as shown on plans entitled, "Collins Cove, Salem, Massachusetts ," dated 4/2/84 and further described on a plan by James W. Haley entitled "Site Plan Collins Cove Condominiums Salem, Mass." dated April 2, 1984, in an R-1 District. (2) Section VI, (Table I) minimum width of side yard; and (3) from any other sections of the Salem Zoning Ordinances required to effectuate the foregoing . By way of background, it should be stated that pursuant to a public competition, the City has selected McNeil & Associates as developer for the property and executed a Contract for Sale with petitioner for the Site. The City requested the petitioner to proceed with a development of thirty-six (36) residential townhouse condominium units. Petitioner has spent large sums of money in reliance upon the City' s desire that petitioner develop the Site by constructing thereon thirty-six (36) residential condominium units. The Contract for Sale with the City requires petitioner to pay the City the sum of Four Hundred Thousand Dollars ($400,000.00) . Board of Appeals page 2 Also, by way of background, we submit that the petitioner, having an executed contract for Sale, has standing to apply for a variance. The courts in Massachusetts have upheld the standing of a party to apply for a variance where such party has an executed purchase and sale agreement . In Carson Vs. Board of Appeals of Lexington, 321 Mass . 649 (194 t e standing o a party to apply for a variance was upheld where the party was the buyer under a purchase and sale agreement contingent upon the grant of a building permit. In Marinelli vs. Board of A eal of Boston 27 a pp 5 Mass. 169 (1931) tTie�uyer Had only a o 1 purchase and sale agreement and his standing to apply for a variance was upheld. In other words, our courts have upheld the standing of a party to apply for a variance under broad circumstances, even where the party did not have title to the land. Therefore, clearly petitioner has standing to apply for a variance. In order to be entitled to a variance, the petitioner pursuant to G.L. C. 40A, Section 10, must first establish sufficient facts to satisfy three jurisdictional prerequisites as follows: I. that owing to circumstances relating to soil conditions , shape, or topography of such land or structures and especially affecting such land or structures�ut not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship , financial or otherwise, to the petitioner II. that desirable relief may be granted without substantial detriment to the public good, and III . without nullifying or substantially derogating from the 6 intent or purpose of such ordinance or by-law. v � O These conditions are met as follows : 0 Q I. That owing to circumstances relating to the soil conditions, shape, or topography of such land or ` (D structures and especially affecting such land or / structures but not affecting generally the zoning district / l in which it is located a literal enforcement of the ordinance or provision of the by-law would involve sustantial hardship, financial or otherwise, to the petitioner. Oh With regard to the Site the following should be noted: (1) much of the Site consists of mud flats and ledge, as well as steep and sloping topography Board of Appeals Page 3 (2) there are two delapidated buillings on the Site and a small cemetery (3) the Site is blighted, overrun with weeds and often used as a dumping area (4) because of the topography, the amount of ledge and mud flats, a substantial portion of the Site cannot be built upon. Pursuant to the Salem Zoning ordinance now in effect, the petitioner would be permitted to construct fifteen (15) single family dwelling units on the Site. Attached to this letter is Exhibit A setting forth the major direct costs of constructing fifteen (15) one family dwelling units on the Site. Exhibit A demonstrates that because of the topography, the large section of mud flats, the substantial amount of ledge, as well as the requirement for a road to be installed, and structures demolished, the Site cannot be developed for the number of units permitted by the zoning ordinance and still be a financially-feasible development proposal. The additional units are required to support the fixed costs of development over the number of units approved by the competitive development process to allow the petitioner to undertake a development that is economically feasible. There is, in the opinion of the petitioner, no other use of the premises authorized or permitted by the zoning by-law that would be economically feasible. It is on this basis that the petitioner seeks this variance since to try to develop the Site within the zoning ordinance would, in fact, produce financial hardship to any owner who attempted to do so. With regards to case law on the matter of hardship , courts in Massachusetts have held that hardship is not being able reasonably to use property for the purpose allowed by the zoning by laws. In other words, a demonstration that the premises cannot be developed under existing zoning in an economically feasible manner will be grounds for a variance. A case in point is Johnson vs . Board of A eal s of Wareham, 360 Mass 872 (1972) upho r convering a variance osion of a church to offices in a residential zone. Hardship was found in this case allowing offices in a residence zone. The trial court in the Johnson Case found that it was unrealistic to use the existing church for residences. This is similar to our case where it would be unrealistic to use the Board of Appeals Page 4 existing structure for residences. The Court in the Johnson Case concluded that there was "hardship in not being sE ee reasonably to use this unusual, if not unique and substantial "existing Building" . . . . . for any permitted purpose" . This is very similar to our case since the exising building could not be used for any permitted purpose. Hardship was also found in the case of Dion vs . Board of Appeal of Waltham, 344 Mass 547 (1962) where a lot was used as a dump yb Ioca-l—residents . Similarly in Sherman vs . Board of. A eals of Worcester, 354 Mass 133 (19 8) was oun w ere land was ower than other land and covered by sand over peat . Therefore, because of drainage problems and the need for fill, the land could not be developed is an economically feasible manner under current zoning and a variance was granted. Also a variance was granted in Rodenstein vs. Board of A eals of Boston, 337 Mass 333 (1958) w ere pu ngstone was ounif e o�Fe- surface soil, and in Broderick vs. Boardof A eals of Boston, 361 Mass 472 (1972) w en t ere were variations rn — grade and ledge. In Jose hs vs . Board of Appeals of Brookline, 326 Mass 290 (1972) a variance was granted w ere t e site a sloping topography. In each of these cases as in our case the courts have found hardship because the property could not reasonably be used for the purposes or in the manner allowed by municipal zoning requirements . Our case is similar to O 'Brian vs. Board of Appeals of Brockton, 3 Mass . App . Ct . w ere: "The judge, who was personally familiar with the locus and the surrounding area, made detailed findings and concluded that all the statutory requisites (G.L. C. 40A, s . 15) for a variance had been met . He found that the locus would be 'economically useless ' for the development of single family residences under the terms of the Brockton zoning code (code) . . ." The judge reached this conclusion in part because of adverse subsoil conditions, the cost of piping a 20-foot wide drainage ditch and of constructing a sewer and new road. The hardship required in Massachusetts in variance cases was clearly stated in 1980 by the Appeals Court in Cavanaugh vs . Diflumera, 9 Mass. App . Ct. 396 : "Finally, the facts found by the judge make the present case parallel to decisions such as Rodenstein vs. Board of Board of Appeals Page 5 Appeal of Boston, supra at 335-336 ; Kairis vs. Board of Appeal of Camrid e, supra at 529-532 ; Dion vs . Board of Appeais ot Wa t am, supra at 550-552 ; an S erman vs. Board o A ea s of Worcester, 354 Mass . M, M-= --a cases w ere the trial judge appears to have found that it was not economically feasible or likely that the locus would be developed in the future for a use permitted by the zoning ordinance or by-law." II. THAT DESIRABLE RELIEF MAY BE GRANTED WITHOUT SUBSTANTIAL DETRIMENT TO THE PUBLIC GOOD. The grant of this variance will permit the construction of 36 townhouse condominium dwelling units which will sell for approximately $140,000 each. This development being designed for individual home ownership will be compatible with the residential character of the neighborhood. The buyers will be for the most part be oung, single professional people and older, "empty nesters ' with few if any children. As a result, the demand on city supported services and the impact on schools will be minimal. Adding thirty-six (36) dwelling units to the housing stock will clearly add to the public good. Courts in Massachusetts have weighed the benefit to the community of the proposed development against any expected increase in traffic, or other impact on the neighborhood and have granted variances . In this regard one should read O'Brian vs. Board of A eals of Brockton, 3 Mass . Appl. Ct. 740 ZT973�- an Broderic vs . Board o Appeals of Boston, 361 Mass . 472 (197 ' Boston Edison Co. vs. Boston Redevelopment Authorit , s 374 Mas . an Karsis vs . Board ot Appeals o Cambridge, 337 Mass . 528 III. THE GRANTING OF THIS VARIANCE WILL NOT NULLIFY OR SUBSTANTIALLY DEROGATE FROM THE INTENT OR PURPOSE OF THE ZONING BY-LAW OR ORDINANCE. The Site is a unique, water front parcel located on Collins Cove. A high-quality, self-contained residential condominium development will benefit the City of Salem from an architectural and a fiscal point of view, as well as continue to provide water front access to area residents . The desired relief may be granted therefore without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Zoning Ordinance. The Site is located in a mixed use area. There are single family homes, a school, a power plant and multi-family homes in the area. Therefore, the proposed development of 36 townhouse will not alter the neighborhood. Rather, the proposed Board of Appeals Page 6 development will compliment and fit into the neighborhood. This is consistent with the zoning ordinance which attempts to create compatible uses in each zoning district . The neighborhood is attractive and well maintained. Owner occupancy and long term stability are characteristic of the neighborhood. Residential condominium units provide long term stability consistent with the existing character of this neighborhood. The existing character of this area would not be altered by the proposed residential use, the city would benefit from the new tax revenues generated by the condominium units, and adjacent properties would not be adversely affected by the proposed development . Such a use is entirely compatiable with the neighborhood and with the residential purposes contemplated by the zoning ordinance. The neighborhood will be improved by removing an abandoned, delapidated structure and by developing the Site into a residential condominium community. The courts have held that the "overall effect or the proposed use of the locus upon other property within the same district" must be examined. Planning Board of Framingham vs. Zoning Board of A eals of Framingham, Mass . App . Ct . 9 5 tftioner su mits that the proposed development will compliment the other surrounding areas. Also in the case of Boi'a'ian vs. Board of A peals of Wellesley, 6 Mass . App. Ct . 76 the Court up elda variance on the following grounds : "The judge and the board found that to allow this variance would enhance rather than detract from the public good . The proposed use of the locus would not reduce the value of any property within the zoning district but would, rather tend to increase property values. Plans for the proposed building indicate that existing trees and the stone wall in front of the building would be retained. Adequate parking would be provided. While the use of the proposed building would add some traffic to the flow on the service road, no significant increase in traffic would result." Our case thus is similar to the standards the Courts have used to find that the variance can be granted without nullifying or substantially derogating from the intent or purpose of the zoning by-law or ordinance. Board of Appeals Page 7 Based on the above facts presented to the Board in this letter and at the public hearing , the petitioner respectfully submits that it is entitled to a variance as set forth in the petition and in this letter as presented at the hearing . Respectfully submitted , 'z' � , /wirr z __ u1JFeel man Attorney for McNeil & Associates, Inc . Petitioner requests that the Board of Appeals do the following: 1. Grant a variance to develop thirty-six (36) two-story residential condominium ,dwellings in an R-1 District , as shown on plans entitled, "Collins Cove, Salem, Massachusetts," dated 4/2/84, and further described on a plan by James W. Haley entitled, "Site Plan Collins Cove Condominiums Salem Mass." dated April 2, 1984. 2. Grant a variance from the provisions of Section VI (Table I) Minimum Width of Side Yard of the Salem Zoning Ordinances . Petitioner recognizes that final plans for said proposal are subject to approval by the City of Salem Planning Board as a condition of approval by the Salem Zoning Board of Appeals. P.O.BOX 407,420 PROVIDENCE HIGHWAY,WESTWOOD, MA.02090.326-5800 �51urdy Oc� Construction Co., Inc. ,r May 23 , 1984 Mr. Thomas Southworth Assistant Vice President McNeil & Associates , Inc. 420 Providence Highway Westwood, MA 02090 Re : Collins Cove/Health Hospital Site Essex and Memorial Drive Salem, Massachusetts Dear Tom: Pursuant to your request, I have prepared a preliminary cost estimate for a 15-unit, single-family subdivision. This cost estimate is based upon a plan prepared by James W. Haley, P.E. , entitled "Preliminary Subdivision Plan, Salem, Mass. " , dated May 2 , 1984 , scale 1"=40 ' , and the plan is attached herewith. I have endeavored to address all the pertinent costs relative to the construction of a single family subdivision. It should be noted that the site is characterized by extensive ledge throughout , steep slopes , eroding shoreline, dilapidated Health Hospital and a club. As evidenced by the attached data, a single family development at the subject site would result in the loss of $981 ,345 or $65,423 per single family dwelling unit. If I can be of further service, please do not hesitate to contact me. Very truly yours , TURDY CAN YONSTRUCTION CO. , INC. i i i Jack O' Dea Assistant Vice President JO: lao Enclosures T-1 ADIVISION OF `` _McNeil&-Associates,Inc. EXHIBIT A The following information represents the cost of developing the subject site as fefteen individual, single-family homes. Land Cost : $400 ,000 - $26 , 667/lot Site Development Costs : Building Demolition $ 75 ,000 Ledge Trenching and Removal 280 ,000 Road Costs 27 ,925 Sidewalks 3 ,150 Water Mains 27 , 840 Sewer Mains 29 , 600 Drain Pipe 4 , 350 Crushed Stone . 1 ,350 Structures/Drain Manholes 6-,000 Fire Hydrants 2 ,400 Road Repaving 11 ,330 House Sewer Connections 18 ,000 House Water Connections 12 ,000 Police Detail 1 , 800 Engineering Cost 49 ,500 Legal Cost 22 , 500 Interest 1 year 14% 136 ,184 Broker' s fee 10% 110 ,892 Total Site Cost : $819 , 551 - $54 , 636/lot Total Land & Site Cost : $1 ,219 , 551 - $81 ,303/lot Construction Cost 15 Homes : $1 ,740 ,000 - $116 ,000/home Construction Interest 14% : $121 , 800 - $8 ,120/home TOTAL PROJECT COST: .$3, 081 , 351 - $2'05 ,423/home Projected Market Value per Home : $140 ,000 Project Loss per Home : ($65 ,423) Total Loss from Single Family Development : ($981 ,345) Attached herewith is the specific quantity and unit cost breakdown for the above construction costs . 5/15/84 Cost for a 15 Unit Single Family Development DESCRIPTION QUANTITY UNIT. COST TOTAL Land 15 lots $26 ,700/lot $ 400 ,000 Building Demolition 2 buildings 75 ,000 a � Open ledge 4 ,000 c.y. $25 c.y. 100 ,000 ,a o a ) Trench ledge 4 ,000 c.y. $45 c.y. 180 ,000 %N Road Paving 2 ,200 sq. ft. $6 . 50/sq.yf . 14 ,300 o Road Gravel 1 ,000 c.y. $5. 00 c.y. 5, 000 U rt Cape Cod Berm 1 ,500 l. f. $2 . 25 l. f. 3 ,375 a° Vertical Edge Stone 210 l. f. $25. 00 l. f. 5,250 Sidewalks 420 s .y. ' $7. 50 s.y. 3 ,150 8" ductile iron water pipe 1 ,280 l. f. $18/l. f. 23 ,040 s4 w v iJ m o Tapping sleeve/G.V. 2 each $2 , 000/each 4 ,000 3 U 8" gate valve 2 each $400/each 800 8" PVC sewer 1 ,020 l. f. $20 l. f. 20 ,400 s4 U) 3 y Q) o Sewer Manholes 6 each $1 ,200/each 7 ,200 cn U Special Sewer Manhole 1 each $2 ,000 2 , 000 12" drain pipe 290 l. f. $15 l. f. 4 ,350 Stone 150 ton $9. 00/ton 1 , 350 Structures 5 each $1 ,200/each 6 ,000 Hydrants 2 each $1 ,200/each 2 , 400 Road Repaving 1 , 030 s .y. $11/s.y. 11 , 330 House sewer conn. 1 ,500 l .£. $12/l. f. 18 , 000 House water serv. 1 , 500 l. f. $8 l. f. 12 ,000 Police detail 15 man days $120/day 1 ,800 Build. Cost 15 units @ 2 ,000 sq. ft. $58/sq. ft. 1, 740 , 000 TOTAL DEVELOPMENT COST $2 , 640 ,745 � 1 nOV ?3 0 t98i �l_ wj Z7 '.� kgg�mT.Nr CITY OF SALEM MASSACHUSETTS JEAN A. LEVESOUE MAYOR November 27, 1981 Mr. Alexander H. McNeil P. 0. Box 407 420 Providence Highway Westwood, MA 02090 Dear Mr. McNeil: I am pleased to inform you that I have chosen your development firm to develop our Collins Cove site. I was very .impressed with both the quality of your proposal and also your fine reputation as a developer. The Collins Cove project is a complex one with a number of issues to be resolved. I look forward to working with you and your associates towards a timely and satisfactory completion of an important development in our city. Very truly yours, n i - j" Jean A. Levesque Mayor JAL/pw n'ION ' TO: 1111: IIONr)ItARIJ`: ANTHONY V. SALVO, MAYOR, CITY Or SALEM, AND TILS SALEM C1'11Y COUNCIL We, the undersigned residents of Ward I of the City of Salem, hereby express .our support of McNeil & Associates' condo- minium proposal for the Surplus Salem licalth hospital Property as previously approved pursuant to the Public Request for` Pro- posals by the City of Salem, and request the support of your administration and the City Council in this matter. / ( _a i, .ilii. �� .,. // C; :� /'• a;�' �Il � /� () - . ,� � �� (• ��.C;�l.�,i,v �C' �19�—�%�'V� G—�—�—c"C'� �U/�— , SCL(c.e�c.t�_ � !�q �(CLLG C.G4� �/,t. Y fir//'�c"•"1-7 C 7�l (L // y , �Et' A1, /{� ����L:��l�� <I<z i jar, , ,< 1�. PETITION TO: THE HONORABLE ANTHONY V. SALVO, MAYOR, CITY OF SALEM, AND THE SALEM CITY COUNCIL We, the undersigned residents of Ward I of the City of Salem, hereby express our support of McNeil & Associates' condo- minium proposal for the Surplus Salem Health hospital Property as previously approved pursuant to the Public Request for Pro- posals by the City of Salem, and request the support of your administration and the City Council in this matter. /X, _ �� ` La � � 1.,�•�' LLVYV'LC LL CSI/ 414, �lZ LGA �' i y - / - •,��:ti .J- � ` � `tib ls�z.� FISCAL IMPACT ANALYSIS Financial Benefit To The City Of Salem J Current Revenue Projected Revenue The Health Hospital currently produces The most immediate tangible benefits arising zero revenue and is assessed with a nega- from construction of the proposed condomini- tive factor of ($25 ,000. 00) The "Crow II ums will be the value added to the Salem tax Club" adds minimal revenue to the City of base, as well as the principal and interest Salem. l income from the sale of the property. CURRENT ANNUAL REVENUE PROJECTED ANNUAL REVENUE Crow II rental Tax Revenue $70 ,240 . 00/yr. (lease expired Interest Income 1979) $1. 00/yr, from Sale $40 ,000 . 00/yr. Payment in lieu of taxes $1,789 . 00/yr. CUREVENUEOTAL ANNUAL ' 7 ® . ® ® PRREVENUE :OJECTED TOTAL ANNUAL $ 110 , 240 . 00 ' /74 . 0 O `, 1Source: Salem Assessor' s Office.