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4 WEBSTER STREET - BUILDING INSPECTION enda le 5Essolto 74520 40°/a P4 w r CITY OF SALEM9 MASSACHUSETTS BOARD OF APPEAL CI1 ( 0r- 'SALEM..MA 120 WASHINGTON STREET, 3RD FLOOR CLERKS 0 10E SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 MAYOR FAX: 978-740-9846 1004 AUG 2l p 3: 08 DECISION ON THE PETITION OF ROLAND AND CELIA ERWIN REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 4 WEBSTER STREET R-2 A hearing on this petition was held on August 18, 2004 with the following Board Member;present;Nina Cohen Chairman,Bonnie Belair, Stephen Harris,Nicholas Helides and Richard Dionne. 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 petitioners are requesting relief in the form of a Variance from a front yard setback to construct a covered porch and a Variance from a side yard setback to re-construct a rear 3 season porch for the property at 4 Webster Street located in an R-2 zone. The Variances,which have been requested,may be granted upon a fording by this 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 involve. b. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship,financial or otherwise,to the petitioners. 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 of the purpose of the Ordinance. The Board of Appeal, after careful consideration of the evidence presented at the hearing, and after viewing the plane,makes the following findings of fact: 1. The petitioners appeared and represented themselves at the hearing. 2. Petitioner requests a Variance from front yard setback to construct a covered porch and a side yard setback to re-construct a rear 3 season porch. 3. Paul Guido who resides at 15 Pleasant Street spoke in favor of this petition. 4. There was no opposition to this petition. DECISION OF THE PETITION ROLAND AND CELIA ERWIN REQUESTING A VARIANCE FOR THE PROPERTY LOCATED A 4 WEBSTER STREET R-2 page two On the basis of the above findings of fact, and on, the evidence presented the Board of Appeals finds as follows; 1. Special conditions exist when especially affect the subject property but not he District. 2. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship to the petitioner. 3. Desirable relief 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 5 in favor and 0 in opposition to grant the Variances requested, subject to the following conditions: 1. Petitioner shall comply with all city and state stature,ordinance, codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted and approved by the Building Commissioner. 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner shall obtain building permit prior to beginning any construction. 5. Exterior finishes of the new construction shall be in harmony with the existing structure. Variance Granted August 18, 2004 Bonnie t� ,�C/-O, , Board of Appeal r DECISION OF THE PETITION OF ROLAND AND CELIA ERWIN REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 4 WEBSTER STREET R-2 page three A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days date of filing of this decision in the office of the City Clerk Pursuant to Massachusetts General Laws Chapter 40A, Section 11,the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk that 20 days have elapsed and no appeal has been filed,or that,if such appeal has been filed,that is has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of Title. Board of Appeal CaUII.�ING [)cPj ID 9 31 WILLIAM SOLICITOR. TI RE-UC ED r CITY OF SALEM RICHARD W. STAFFORD CITY �. i,1 }TABS. MASSACHUSETTS ASSISTANT CITY SOLICITOR ]O WASHINGTON STREET CITY OF SA 70 WASHINGTON STREET SALEM, MA 01970 SALEM, MA 01970 7444172 744-2172 April 6 , 1979 Mr . John B. Powers Building Inspector City of Salem One Salem Green Salem, MA 01970 Dear Mr . Powers: This letter is in response to a request for a legal opinion from City Councillor , Stanley J. Usovicz , Jr . relative to the issuance of a building permit for Mr . and Mrs . Irwin to erect a storage shed at ' their property at 4 Webster Street , Salem, Massachusetts. The application for a building permit was denied by your office and a direct appeal for relief from the sideline and rear lot line requirements was filed with your office and dated October 16 , 1978 . The application was scheduled to be heard on Thursday, November 29 , 1978 , which meeting was continued on December 6 , 1978. The minutes of that meeting do not reveal whether the applica- tion for a Variance was considered at the first or second dates of that meeting. The minutes reveal a confusing sequence of Motions made and withdrawn resulting in a lack of clarity relative to the legal effect of the only vote which appears to have been taken, which Motion was denied on the following vote: "James Boulger made a motion to deny the Petition noting that there are no special conditions to the land . Motion was seconded by Douglas Hopper . . . . James Boulger voted to deny the variance requested. Douglas Hopper , John Nutting , Donald Eames , Arthur Labreque voted to grant the Petition. " (pg . 4-5 of Minutes) The Chairman subsequently challenged the legality of the vote . The confusion apparently arises out of whether the vote of the Mr . John B. Powers -2- April 6 , 1979 Building Inspector Board "to grant the Petition" was valid because the Motion before the Board at that time was to deny the Petition , not to grant it. Since the crux of the objection goes to a procedural question, the basis of the challenge should have been set forth and, the Board given the opportunity to properly express its intent by forming a new Motion. It does not appear that the prohibition of further discussions , by the Chairman, facilitated the purpose of the Board . Section 9 (c) of the Zoninq_ Ordinance of the City of Salem provides in part: "The decision of the Board shall be made within seventy-five (75) days after the date of the filing of an appeal, application or petition except in regard to Special Permit - failure by the Board to act within said 75 days shall be deemed to be the grant of the relief, application or petition sought. " If the niceties of procedure are to supercede thg apparent intent of the Board of Appeals , then it is clear that in any event, the 75 days set forth above have expired and the Petition must be considered granted on the basis of the failure of the Board to act either affirmatively or negatively on the Petition. Sincerely, Richard W. Stafford Assistant City Solicitor RWS/dlg cc: Councillor Stanley Usovicz is L : ADMINISTRATION SECTION IX 4. If a variance is allowed, the Board of Appeals shall base their decisions solely and in accordance with all of the provision_ of Chapter 40A. A copy of the Board or Appeals ' decision based upon the facts as outlined in Chapter 40A shall be filed with the City Clerk and a copy filed with the Planning Board within fourteen ( 14) days . The concurring vote of four of the members of. the Board or Appea L shall be necessary to reverse any order of decision of the Inspector of Buildings , or to decide in favor of the applicant on any matter upon which it is required to pass under this Ordinance , or to effect any variation in the application of this Ordinance. The decision of the Board shall be made within seventy-five (75) days after the date of the filing of an appeal , application or petition except in regard to Special Permit - failure by the Board to act within said 75 days shall be deemed to be the grant of the relief , application or petition sought .\ No variance or special permit , or any extension , modification or renewal thereof , shall take effect or be considered as granted , until a copy of the decision bearing the certification of the city clerk that twenty days have elapsed and no appeal has been filed or that if such appeal has been filed, that it has been ( dismissed or denied, is recorded in the registry of deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner ' s certificate of title. The :fee for recording or registering shall be paid by the owner or applicant , and the Board of Appeals shall notify the applicant of his responsibility for filing with the Registry of Deeds .