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96 ESSEX STREET - CRYAN, DANIEL W - ZBA 96 Essex St. R-2 Daniel W. Cryan i i �O ^ �-° ADDENDUM TU CITY CF SAL2M, 4AS60CHUSETTS HOARD OF APPEAL RE: 96 ESSEX STREET � � On June 17, 1937 a hearing was held on a petition of � R. Aimee Benoit fora special pzrmit to allow a three ` family and a variance from minimum parking in this � R-2 zone at 96 Essex Street . The Zoning Board of Appeal voted unanimously in favor to grant the Special Permit and the Variance. A copy of this decision is included. Our petition is identical to the petition that was made and granted by R. A. Benoit for 96 Essex Street . � / �,<oHM4 of $aIrm, ttssttcl#use##; � 8 �M `I� DECISION ON THE PETITION OF R. AIMEE BENOIT FOR A SPECIAL PERMIT AND A VARIANCE AT 96 ESSEX ST. (R-2) A hearing on this petition was held June 17, 1987 and continued to June 24, 1987 with the following Board Members present: Janes Hacker, Chairman; Richard A. Bencal, Secretary; Messrs. , Fleming, Luzinski and Associate Member Labreque. Mr. Labrecaue, however, was absent from the June 24, 1987 meeting. Notice of the original 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 is requesting a Special Permit to allow a three family and is also requesting a Variance from minimum parking in this R-2 zone. The provision of the Salem Zoning Ordinance which is applicable to this request for a Special Permit is Section V B 10, which provides as follows: Notwithstanding anything to the contrary appearing in this Ordinance, the Board of Appeal may, in accordance with the procedure and conditions set forth is Section VIII F and IX D, grant Special Permits for alterations and reconstruction of non- conforming structures, and for changes, enlargement, extension or expansion of nonconforming lots, land, structures, and uses, provided, however, that such change, extension, enlargement or expansion shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. In more general terms, this Board is, when reviewing Special Permit requests, guided by the rule that a Special Permit request may be granted upon a finding by the Board that the grant of the Special Permit will pronote the public health, safety, convenience and welfare of the City's inhabitants. 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 involve substantial hardship, financial or otherwise, to the 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 careful consideration of the evidence presented at the hearing, makes the following findings of fact: i 1 . Evidence submitted by the petitioner in the form of copies of the "Polk Directory" and City Directories indicate the building has been used as a three family since before 1900; ORC(SLUN ON '['IIF PETITION OF R. AIMEE BENOIT FOR A SPECIAL PERMIT AND VARIANCE AT 96 ESSEX ST., SALEM page two 2. Utility meters for three residences are and have been in place - for a long time; 3. Presently, no parking exists and the three family use would not change this; - - 1 4. No opposition was presented. On the basis of the above findings of fact, and on the evidence presented at the hearing, the Board of Appeal concludes as follows: 1 . Special condition exist which especially affect the subject property but not the district generally; 2. Literal enforcement of the Ordinance would involve substantial hardship to the petitioner; 3. The relief requested can 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. Therefore, the Zoning, Board of Appeal voted unanimously, 4-0, to grant the Special Permit, subject to the following conditions: 1. All conditions of the Salem Fire Dept. relative to smoke and fire safety be adhered to; 2. No exterior additions are to be made to the building; 3. A Certificate of Occupancy for each unit be obtained; 4. A legal building permit be obtained; S• All renovations be done as per all City and State Building Code and as per plans submitted. _ j The Board of Appeal also voted unanimously, 4-0, to grant the Variance requested subject to the following conditions: i 1 . The petitioner obtain three parking spaces from the Salem Off Street Parking Commission at its nearest facility if said Commission agrees. SPECIAL PERMIT & VARIANCE GRANTED L R chard A. Bencal, Secretary r.41.1r 1 „r-rl 51!eu c 1 '"[ 1 A',OOPT. LIP TikLS D�GI$,VN. R 9pI EMD%'F1fIIPfffrlr, "THE PLANNING BOARD AND THE CITY CLERK crtex. fr.c-: 11. rur v 111L .CIpil,il f, f1Pl 'f DIr .I'."I,if. I IIV nR 111h, r 1.n. uA Ir lc.l:u I f � I 1 1 I'CAI II\ I IIII p,f i '.la :lit. UI II Ila Lf it )I .❑$;❑ If L fly r.: ItL l i IJ b p, III. :Px,11 EaSLY PF.ISIRi OF CEEPS AND ❑ICFxC'l UOIDE1 IIIC DAAL L11 111E UC:fl Elt UI fECURu uH IS NLLUHUEU ADD fIUIEU O8 THE OliNER'S CERIIRCAIE Of DILE. - WARD OF AITEAt IC I ILAI - - - r- �- -- -- - — � — --I'— —. Bath ' I N I� I m P O : I ij 9 P b I 77 4P I vtio TQOM rn i ! , I I 1 ►@fJc1c'n 1 � I I I �' 2 y I ND7. G . : A , C —t{III-�. �—' .i s/A t'.8 :4 j ' I 1 'il IT. : , it . . . . . .- I r-- -r W 969'2�0�9�. F.R i /crc /ecru/y�fio�f/,e�rn�ei� � .%/JIJ.Sfh>.!/il OrC e%sd�ioi" eriJ,ir--YY+�ov/i1GrJh�oi>o�i5fe�iry �'1J.{l'CG.�J OnO�lyO J1170tt//J 4/L� �� � •4.Y0 ,�'J1C O�/O!%L✓/C �/71�01'/✓pfC ? �. . �' � I r �,/r c,s ono'w,>✓/16;iz°o% y`b ZZ�✓" , / i Or7�/,�✓ .1�itlf/.!7/.t^H'!/%/JGJ _ �", �.vl .. ,ter d/✓iSiv�oftxiatii� '1� �' _ ; . ',•% I>' � Q .3go,Gc ti , ET ESSEX STi2E i , /vhio�s o �hc P isfe�s ed°OR-epi. 1 itis Mar: HAS .IeEI: I:E:DUCEI). FOR _Z] CUR8h:C7 SCALING SEE (MIGP.'AL ON FILE. PLAN 1 OF LAUV vex aEetsrRY or oleos, s4 Difr m�;►r)�. +�1(o wK1.N p '2LC1usn.�?•�I;,� cQ„Q_�__ �3'o�ocra o/' C&-c, -.. 4 --- .4ers�ue W. ✓o,4,vE D,.VcY i .< BCv.�.l3P_(8 Ft�1rNo,,toQ/ev i 97 6 17i 76 ESS6XSU.�VEr,SE.¢V/CE�UC. � 47F�cv/S/ircfi�e1.•Nv*s i Tit" of ttlPm, �ssttthuseffsAUG prul DECISION ON THE PETITION OF DANIEL W. CRYAN FOR A VARIANCE AT 96 ESSEX STREET (R-2) A hearing on this petition was held on August 16, 1989 with the following Board Members present: James Fleming, Chairman, John Nutting, Secretary, Messrs. Richard Febonio, Edward Luzinski and Arthur LaBrecque. 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. The Petitioner is requesting a variance from use and parking to allow a three family at 96 Essex Street (R-2) . The Variance which has been requested may be granted upon a finding of the Board that: a. special conditions and circumstances exist which expecially 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 involve substantial hardship, financial or otherwise, to the petitioner; 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 consideration of the evidence presented at the hearing, and after viewing the plans, makes the following findings of fact: 1. There was opposition from neighbors. 2. A letter of opposition was received from Councilor Nowak opposing the petition. On the basis of the above findings of fact, and on the evidence presented at the hearing the Board of Appeal concludes as follows: 1. Special conditions do not exist which especially affect the subject property and not the district generally. 2. Literal enforcement of the provisions of the Ordinance would not involve substantial hardship to the petitioner. 3. Desirable relief can not be granted without substantial detriment to the public good or without nullifying or substantially derogating from the intent of the district or the purpose of the Ordinance. DECISION ON THE PETITION OF DANIEL W. CRYAN FOR A VARIANCE AT 96 ESSEX STREET (R-2) , SALEM page two Therefore, the Zoning Board of Appeal voted (3) in favor, (2) opposed (Mr. Fleming, Mr. Nutting) to the granting of the variance requested. The request is denied due to the failure of the petitioner to obtain the required four (4) affirmative votes. DENIED r- Richard T. Febonio, Board Member A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK de Pursuant to Sec' tiled within 20 days this decision, if any. shall be ma Clerk. APPeaI from Chapter SOB. and shall ce f the City in the office o the Variance the Mass. General Low of this decision $"lion ll• °f the the date of filing chanter 308, co after General Laws' shave Pursuant to tAass. rated herein sof ltheGo' ClerKe that 20 dahas been or SPeciai Permit g that, if such aoPlhe South Essex beannn the cer,�s�b>en filed. °r Is recorded decision. eat n. or denied wner of record or elaPs''d ;.no no APP n dismissed has °�� indexed under thell me or [he o tiled. Coat it rJds and wner's GertifiW[e of Title. peGistry of 0' noted on the° is recoroed and B0AR0 OF APPEAL 8,000 6P APPEALS 9 AUG 1989 ut; 1 8 ass Ate X89 BOARD OF APPEALS RECEIVED CITY HALL CITY OF SALEM,MASS. SALEM MA 01970 GENTLEMEN, THANK: YOU FOR SENDING TO ME THE NOTICE THAT SOMEONE IS PLANNING TO TURN 96 ESSEX STREET INTO A THREE FAMILY. I HAVE t_IVED AT 38 WASHINGTON SQUARE FOR 85 YEARS AND IN THAT TIME I HAVE SEEN SOME ODD THINGS HAPPEN TO THE NEIGHBORHOOD. THE PROPOSAL TO MAKE A THREE FAMILY OUT OF WHAT NOW MUST BE A ONE FAMILY IS THE ODDEST OF .ALL. THE PROPERTY IS ABOUT 30 FEET FROM MY PROPERTY SO I HAVE AN INTEREST IN WHAT HAPPENS THERE AND I WILL MAKE THE FOLLOWING COMMENTS. THE HOUSE IS SMALL. THE LOT IS ONLY SLIGHTLY LARGER THAN THE HOUSE. THE FRONTAGE ON ESSEX STREET IS ONLY SUFFICIENT TO PARK ONE CAR. WHERE WILL THE OTHER TWO TO SIX CARS PARK - IN FRONT OF MY HOUSE- PLEASE DO NOT APPROVE OF THIS "THREE FAMILY" PROPOSAL WITHOUT VISITING THE HOUSE. IF YOU DO APPROVE OF THE PROPOSAL IT IS OVER MY STRONGEST OBJECTION. SINCERELY YOURS LUCRETIA BURNS 38 WASHINGTON SQUARE SALEM Cftp of Oatem, Aaoncbuoetto Office of the citp councit �itp �aU e WARD COUNCILLORS VINCENT J. FURFARO 7989 COUNCILLORS-AT-LARGE PRESIDENT 1989 GEORGE A.NOWAK DONALD T.BATES JOSEPHINE R. FUSCO KEVIN R.HARVEY FRANCES J.GRACE CITY CLERK VINCENT J.FURFARO NEIL J.HARRINGTON LEONARD F.O'LEARV GEORGE P.McCABE JEAN-GUY J.MARTINEAU SARAH M.HAYES MARK E.BLAIR August 16, 1989 Board of Appeal City of Salem One Salem Green Salem, MA 01970 Dear Members of the Board: I would like to go on record as opposed to the petition of Daniel W. Cryan to make 96 Essex Street a three-family. There is no parking in the area now, and if this petition is approved, the neighborhood will be inundated with more serious parking problems. Very truly yours, GEORGE A. NOWAK COUNCILLOR WARD ONE GAN/deb N Cn T N Gp Q Q p Uj Ln UJ O rn y 4 N )N WU- O p uc> Y a � v c ss m COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. THE TRIAL COURT LAND COURT DEPT. NO. 137-129 DANIEL W. CRYAN, ) PLAINTIFF ) ) VS ) NOTICE OF APPEARANCE JAMES M. FLEMING, ET. ALS. ) DEFENDANTS ) To the Clerk of the above-named Court: Please enter my appearance as attorney for the defendant members of the Salem Board of Appeal in the above-entitled case. 2 ichael E. O'Brien City Solicitor 81 Washington Street Salem, MA 01970 Telephone ( 508 ) 744-3363 Dated: September 22 , 1989 Certificate of Service I, Michael E. O'Brien hereby certify I caused to be delivered a .copy of the within Appearance to John A. Christopher, Esq. , 21 Front Street, Salem, Massachusetts 01970 . Signed under the pains and penalties of perjury this 22 day of September 1989 . 1 ael E. 0' rien 4 a SPITZER, CHRISTOPHER, GELINEAU & ARVANITES ATTORNEYS AT LAW 21 FRONT STREET SALEM,MASSACHUSETTS 01970 TELEPHONE(508)745-3938 FACSIMILE(508)741-8034 KARL G. SPITZER OF COUNSEL JOHN A.CHRISTOPHER ROBERT A.CORNETTA ROY F.GELINEAU (617)233-8507 PETER J.ARVANITES September 13 , 1990 Leonard Femino, Esq. One School Street Beverly, MA 01915 Re: Cryan vs. Fleming Dear Lenny: Enclosed is the order for the pretrial conference on the above case. We have to have memoranda filed by October 1 , 1990. Would you please call me in order that we may discuss the issues. Ver tr�urs, hn A. Christopher JAC/js THE COMMCNWEALTH OF MASSACHUSEM S - - LAND COURT oF�aRrMerlroFr>ierRiAlcaursr � • ` OLD COURTHOUSE.SOS ON.MA 02108 FQ6.e�r CHARLES W.TROMBLY.JR PHONE'(fi 17l 1:.7-7670 necc'ow 11 04 Attorneys: _ 7/5 /���� You are hereby advised that the Court has, ordered the above matter set down for a pre-trial conference on b(? 0 /.5�/� y at /Q'Q Q A /YJ . in the Lana Court- All counsel are to be present_ Failure to appear at the conference will result in an automatic default unless absence is excused in advance by the Court. If plaintiff's counsel does not appear without a valid reason for absence, then the action will result in a dismissal or default being entered. Very truly yours; Deborah J. xtt _son Deputy Assistant q,1473c Dip/ GF.Lir;P_hU COMMONWEALTH OF MASSACHUSETTS .r LAND COURT DEPARTMENT OF THE TRIAL COURT Suffolk, ss. Land Court Case No. NOTICE OF PRE-TRIAL CONFERENCE To All Counsel of Record: All counsel are directed to appear on ��/!��(, /51 at /61 0 wi at a Pre-Trial Conference in the above-captioned action. At the conference all questions . concerning the parties, pleadings, jurisdiction,. pending motions, and all other matters within the scope of Mass. R. Civ. P. 16 will be dealt with in order to efficiently and effectively lead to a final disposition of this action in an orderly manner. 1. Within 15 days from the, date of this notice counsel for the parties will confer at a convenient time and place to discuss these matters. 2. Counsel should bring to the Pre-Trial Conference.- a. A statement on behalf of plaintiffs setting forth plaintiffs ' general claims including the damages requested; . b. A statement on behalf of defendant setting forth defendant's general claims including the damages requested; C. A written and signed stipulation or statement of the uncontested facts established by admissions in the pleadings or answers to the interrogatories, in responses to requests for admissions, or by the agreement of counsel; d. Plaintiff 's written list of the potential witnesses to be called by the plaintiffs; 1 e. Defendant's written list of the potential witnesses to be called by the defendants; f. A written statement of the contested issues of fact and of law filed on behalf of the plaintiffs; g. A written statement of the contested issues of fact and of law filed on behalf of the defendants; h. A written waiver of claims which have been abandoned by the plaintiffs; i. A written waiver of defenses which have been abandoned by the defendant; j . Exhibits- to' be offered into evidence by the plaintiffs together with a numbered list thereof including a brief description of each; k. Exhibits to be offered into evidence ,by the defendant together with a numbered list thereof including a brief description of each. By the I Court Attest: Charles W. Trombly, Jr. . Recorder Dated: �� . � l C Z i b k� TJ A 'Ll M.. CITY OF SALEM - MASSACHUSETTS KEVIN T.DALY Legal Department -LEONARD F FEMINO City Solicitor - 93 Washington Street Assistant City Solicitor 508-745-0500 Salem, Massachusetts 01970 508-921-1990 April 12 , 1991 Richard Bencal, Chairman Salem Board of Appeal City of Salem One Salem Green Salem, MA 01970 in re: Daniel W. Cryan vs. Salem Board of Appeal Land Court Civil Action No. 137129 Dear Mr. Bencal: 1 Enclosed herewith please find a copy of a Decision issued by the Land Court dated April 10, 1991. This matter was tried before the Land Court on March 21, 1991. Assistant Building Inspector David Harris testified on behalf of the City of Salem. Please note that the Land Court upheld the decision of the Salem Board of Appeal denying a variance to the Plaintiff, Daniel W. Cryan. If you have any questions or comments, please feel free to contact me. Very truly yours, 010 - .� Leonard F. Femino LFF/sbh. Enclosure a cc: Kevin T. Daly, Esq. Neil J. ,Harrington, Mayor COMMONWEALTH OF MASSACHUSETTS LAND COURT I .'+ )•- DEPARTMENT OF THE TRIAL COURT Essex, ss. Miscellaneous Case No. 137129 DANIEL W. CRYAN, Plaintiff, VS. JAMES M. FLEMING, RICHARD A. BENCAL, JOHN R. NUTTING, EDWARD LUZINSKI, RICHARD FEBONIO, PETER _ DORE and ARTHUR LaBRECQUE as they are THE SALEM BOARD OF APPEALS, Defendants. J U D G M E N T This cause came to be heard on March 21, 1991, and was argued by counsel, and thereupon, upon consideration thereof, it is ADJUDGED AND ORDERED that the Board of Appeals of the City of Salem did not exceed its authority in denying an application filed by Plaintiff, on July 19, 1989, to obtain variances from the use and off-street parking requirements of the Salem Zoning Ordinance for property located at 96 Essex Street in Salem. By the Court (Cauchon, J. ) Attest: Charles W. Trombly, Jr. _- Recorder Dated: April 10, 1991 COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT Essex, ss. Miscellaneous Case No. 137129 DANIEL W. CRYAN, Plaintiff, VS. JAMES M. FLEMING RICHARD A. BENCAL, JOHN R. NUTTING, EDWARD LUZINSKI, RICHARD FEBONIO,._PETER DORE and ARTHUR LaBRECQUE as they are THE SALEM BOARD OF APPEALS, Defendants. D E C I S I O N By complaint dated September 14 , 1989, Daniel W. Cryan ("Plaintiff") , pursuant to G.L. c. .40A §17, appeals the denial of a .variance by the Board of Appeals of the City of Salem ("the Board") by its order dated August 25, 1989 . Plaintiff sought a variance from that section of the Zoning Ordinance of the City of Salem ("Ordinance") which restricted the property at 96 Essex Street in Salem ("Locus") to residential use as a single or two- family dwelling as well as a variance from the off-street parking requirements of the ordinance. This case was tried on March 21, 1991, at which time the proceedings were _transcribed by a reporter designated by the parties. Two witnesses testified and five exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of any appeal. - 1 - After considering the evidence, testimony and pertinent documents, I make the following findings of fact: 1. Plaintiff is the owner of Locus upon which stands a three- story dwelling with a gambrel roof ("the Dwelling") . When Plaintiff purchased the Dwelling it contained an apartment on each of the three floors. The neighborhood and zoning district of Locus contains older two, three and four-family dwellings. There was no evidence that the Dwelling was ever used as a three-family dwelling. 2 . Locus is in an R-2 zoning district. Under Section V(A) (2) (b) of the Ordinance, only one and two-family dwellings are allowed in this district. Plaintiff seeks to use the premises as a three-family dwelling. 3 . Section VII(6) of the Ordinance provides that in an R-2 district each building or use is required to have one and one-half parking spaces per unit, with a minimum of two spaces. Locus contains no space for off-street parking. 4 . Under a prior Ordinance, Plaintiff's predecessor in interest to Locus was granted a special permit to use the Dwelling as a three-family dwelling and a variance from the off-street parking requirements of the ordinance. The parties have agreed that both have lapsed due to nonuse. As noted in Finding No. 2, _- the Ordinance has since been amended. 5. On July 19, 1989 , Plaintiff applied to the Board for variances to utilize Locus as a three-family dwelling and to vary the off-street parking requirements for Locus. - 2 - 6. On August 25, 1989, the Board filed a decision with the City Clerk of Salem denying Plaintiff 's petition for variances (Exhibit No. 1) . No landowner possesses a legal right to a variance, Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 559 (1954) ; Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111, 115 (1985) ; Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App. Ct. 343, 349 (1986) , and they are to be granted sparingly. Damaskos v.-Board of Appeal of Boston, 359_ Mass. 55, 61 (1971) . In variance appeals brought pursuant to G.L. c. 40A, §17, the reviewing court hears the matter de novo, makes independent findings of fact and, on the facts so found, determines the legal validity of the Board's decision. Kirkwood V. Board of Appeals of Rockport, 17 Mass. App. Ct. 423 , 427 (1984) ; Gordon at 348. Pursuant to G.L. c. 40A, §10, the applicant for the variance bears the burden of proving as follows: . . , that owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but 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 or appellant, and that desireable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law. See also Dion v. Board of Appeals of Waltham, 344 Mass. 547, 555-556 (1962) ; Raia v. Board of Appeals of North Reading, 4 Mass. App. Ct. 318, 321 (1976) ; Warren v. Zoning Board of Appeals of 3 - Amhe=, 38: Mass. 1, 10 (1981) ; Gordon at 349. A failure to estate=i.sh an7 of the aforesaid statutory prerequisites is fatal to the =ant cf the variance. Blackman v. Board of Appeals of Barns-moble, 334 Mass. 446, 450 (1956) ; Kirkwood at 427. Only if the curt finds that the decision of the Board was arbitrary, unreasonable, whimsical, capricious or based solely on some legally untenable ground, it will be annulled. DiGiovanni v. Board of Apce_:s of Rockport, 19 Mass. App., Ct. 339, 349 (1985) citing Pende_-cast a_ 557, 554-56A.. %iewina these principles in light of the present facts, I do not find tha= Defendants' decision was so flawed. =lainti`f argues that the Dwelling is unique because it is a three-family house in a two-family district and that because of its inter=or design it would be impractical to convert to a two-family. He p:ssented no evidence, however, that the shape of Locus is unique within the zoning district. The Court has consistently held that size is not synonymous with shape as contemplated by G.L. c. 40A, 310. Shafer v. Zoning Board of Appeals of Scituate, 24 Mass. App. :t. 960, 967 (1987) ; McCabe v. Zoning Board of Aipoeals of Arlinzton, 10 Mass. App. Ct. 934 (1980) . Accordingly, under the circ,—istances of this case, I find and rule that shape is not synorrmous with interior_ design and further that neither the shape of tie Dwelling nor the shape- of Locus is unique for the purposes contamplated by G.L. c. 40A, §10. :urther, Plaintiff has failed to prove that a literal enfc—ement of the provisions of the Ordinance would involve 4 - substantial hardship. Plaintiff argues that if a variance was not granted he would be forced to combine the second and third floor apartments into one rented unit, which would create a substantial hardship. "The fact that the landowner is unable to put the premises to a more profitable use is a factor to be considered but alone is not an adequate cause for a variance. " Bicknell Realty Co. v. Boaxd of Appeal of Boston, 330 Mass. 676, 681 (1953) . In Planning Board of Barnstable v. Board of Appeals of Barnstable, 358 Mass. 824. (1971) , the fact- that-a more economical -and.-practical use of land might have been made if it were used for apartment rather than single family purposes did not support a variance. Accordingly, in this case, I find no substantial hardship has resulted from the denial of the variance. Plaintiff presented no credible evidence on the issue of a variance from the off-street parking requirements of the Ordinance. Accordingly, I rule that he has failed to meet the requirements of G.L. O. 40A, §10. Both Plaintiff and Defendants submitted Proposed Findings of Fact and Rulings of Law. I have not attempted to rule on each of said Requests as I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable. In summary, I rule that Plaintiff has neither proven that failure to grant a variance would cause substantial hardship nor that any hardship he may suffer was attributable to the soil 5 - conditions, shape or topography of Locus or the Dwelling. Judgment accordingly. gviq—�—obert V V C"au on (/ Justice Dated: April lu, 1991 6 - r . r Funeral Home 46 Washington Square Thomas A. O'Donnell Salem, Massachusetts 01870 Telephone Director ® (617) 744-2350 Auauat lib. 1989 City of Salem Board of Appeals Salem, MA 01970 Dear Board Members, I am writing to you to express my strong opposition to granting the appeal of petitioner, Daniel W. Cyran , of converting his property at 76 Essex St . , Salem, MA to a three family dwelling. As an abutter to the property I must state that there isn't a single parking space on the property . Our neighborhood is already congested and has a major parking problem. Thank you for your consideration of my views. I am hoping that the petition will be denied. Respectfully , Thomas A. O'Donnell Cit# oftt1em, C �ssttrhue##� p4'@ lire Pepartmeut �Heabyuartrrs uoxc 48 Pfagette itrert Joseph F. Sullivan o alem, M. 01970 Chief City of Salem Re: 96 Essex Street Board of Appeal Daniel W. Cryan One Salem Green Hearing date: August 16, 1989 The property located at #96 Essex Street has current compliance with the provisions of Chapter 148, Section 26E, Massachusetts General Laws relative to the installation of automatic smoke detectors in a single family dwelling. The Salem Fire Department has no objection to the granting of Variances to allow a three family dwelling at this location on the condition that property be protected by a fire alarm system appropriate for a three family dwelling, and the owner arrange for an inspection for compliance by the Fire Prevention Bureau. Signed, Robert W. Turner, Fire Marshal gopRD �� Q4c'EQ�S Jones Company 57 Pickering Wharf Salem, Massachusetts 01970-5199 August 14, 1989 QuG `5 9 16 * u� (509)745-7935 - Fax(508)741-8094 ell, OF SAL City of Salem RE: 96 Essex Street Board of Appeal One Salem Green Salem, MA 01970 Dear Board of Appeals, As the managing general partner of the Suzannah Flint House at 98 Essex Street, there is no objection to the property at 96 Essex Street becoming a three family residence. Since ly, Jose Jon s Char er d Fi an ial Consultant and e �l Est to Broker JLJ/pjt BDAPELS.LTT