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COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. LAND COURT DEPARTMENT
CIVIL ACTION NO. 12 MISC459552-JCC
MICHAEL F. FURLONG, MARIA T.
CASTRO, DAVID FRANK, SHANNON M.
O'DONNELL, MICHELE CORMIER,
MARK A. PEREZ, HAROLD C. LE SAGE JR.
DOLORES T. JORDAN, PRISCILLA LORD AND
KRISTEN M. O'CONNOR,
Plaintiffs,
V.
BONNIE BELAIR, RICHARD DIONNE,
JAMIE METSCH, JIMMY TSITSINOS,
ANN HARRIS, As They Are Members
Of The Salem Zoning Board of Appeals,
AND BHCM INC. DBA BREWER HAWTHORNE
COVE MARINA
Defendants
PLAINTIFFS', MICHAEL F. FURLONG, MARIA T. CASTRO. DAVID FRANK,
SHANNON M. O'DONNELL, MICHELE CORMIER, MARK A. PEREZ, HAROLD C.
LE SAGE JR.DOLORES T. JORDAN, PRISCILLA LORD AND KRISTEN M.
O'CONNOR, FIRST SET OF INTERROGATORIES TO THE DEFENDANTS,
BONNIE BELAIR, RICHARD DIONNE, JAMIE METSCH, JIMMY TSITSINOS,
ANN HARRIS As They Are Members Of The Salem Zoning Board of Appeals
Pursuant to Mass. R. Civ. P. 33, the Plaintiffs requests that the ZBA answer the following
interrogatories within forty-five (45) days of service. These interrogatories shall be
deemed continuing to the extent permitted by Mass. R. Civ. P. 26(e).
1
{
DEFINITIONS
1. The terms "identity" or "identify"
a. when used with respect to a person means to state the full name,
present or last known resident and business address of such person;
b. when used in reference to a business entity means to state the entity's
full name, it's business address and to identify the principal person in
charge of the entity; and
C. when used in reference to a document, means to state the date, author,
recipient and addressee of such document.
2. The word "document" as used in this request includes without limitation the
original, all nonidentical copies and all drafts of any notes, correspondence,
memoranda, (including written memoranda of telephone conversations, other
communications, discussions, agreement, and any other transactions or
activities), invoices, contracts, receipts, letters, tabulations, evaluation, work
papers, calendars, appointment books, diaries, instructions, order forms,
statements,journals, notices, interoffice and intraoffice communications,
books, pamphlets, reports, studies, photographs, plans, drawings or other
verbal numerical or pictorial recordings, whether printed, typed, handwritten,
drawn, recorded on film or tape or within any data processing system, or
recorded in any other form.
3. The term "you" and "yours", unless another intention clearly appears, refers
to the party to whom these interrogatories are addressed, and to any of your
principals, agents, employee, attorneys, representatives, insurers and any
persons acting or purporting to act on your behalf, and any persons in active
concert and participation with you, whether past or present, with you, whether
past or present, without regard to whether or not the relationship exists or has
been terminated.
4. The term "reflecting" means evidencing, demonstrating, depicting, touching
upon, mentioning, analyzing, noting, evaluating, reviewing, reporting on,
critiquing or showing in any way.
5. The term "communication" means any act or instance of transferring,
transmitting, passing, delivering, or giving information, by oral or written
means, including, but not limited to, by way of a note, letter, telegram, telex,
telephone, tape or otherwise.
2
6. The term "Plaintiffs" means
Michael F. Furlong ("Furlong") is an individual residing at 4 Blaney Street
U1, Salem, Massachusetts 01970.
Maria T. Castro ("Castro") is an individual residing at 4 Blaney Street U2,
Salem, Massachusetts 01970.
David Frank ("Frank") is an individual residing at 4 Blaney Street U3, Salem,
Massachusetts 01970.
Shannon M. O'Donnell ("O'Donnell") is an individual residing at 4 Blaney
Street U4, Salem, Massachusetts 01970.
Michele Cormier ("Cormier") is an individual residing at 4 Blaney Street U5,
Salem, Massachusetts 01970.
Mark A. Perez ("Perez") is an individual residing at 3 White Street, Salem,
Massachusetts 01970.
Harold C. Le Sage, Jr. ("Le Sage") is an individual residing at 3 White Street,
Salem, Massachusetts 01970.
Dolores T. Jordan ("Jordan") is an individual residing at 97 Derby Street,
Salem, Massachusetts 01970.
Priscilla Lord ("Lord") is an individual residing at 33 Carlton Street U4,
Salem, Massachusetts 01970.
Kristen M. O'Connor ("O'Connor") is an individual residing at 33 carlton
Street U3, Salem, Massachusetts 01970.
8. The term "Defendant" and "Applicant" means BHCM Inc. d/b/a Brewer
Hawthorne Cove Marina ("BHCM"), a Massachusetts corporation with a
principle place of business located at 10 White Street, Salem, Massachusetts
01970.
9. The term "Property" means 10 White Street and 57 Rear Turner Street, Salem
("the Property"); located in the 1, R-2 and B-I zoning districts in accordance
with the Salem Zoning By-law ("the By-law").
10. The tern "ZBA" or"Defendants" means the members of the City of Salem
Zoning Board of Appeal. Their names and addresses are as follows:
BONNIE BELAIR, RICHARD DIONNE, JAMIE METSCH, JIMMY
TSITSINOS, ANN HARRIS c/o Board of Appeals Office, Salem City Hall
Annex, 120 Washington Street, Salem, Massachusetts 01970.
3
INSTRUCTIONS
In your claim any form of privilege or exemption for disclosure as a ground for not
answering an interrogatory or any part thereof, so indicate in your response to each such
interrogatory, and set forth the facts upon which the claim of privilege or exemption is
based.
INTERROGATORIES
1. What is your name, address, date of birth, social security number, your
employment title, and the name and address of your employer?
2. Are you authorized to answer these interrogatories on behalf of the ZBA
respecting the variance issue in this case?
3. If your answer to the proceeding interrogatory is yes, please explain the basis of
your authority to answer these interrogatories on behalf the ZBA ?
4. With regard to the Property, please state:
a. the lot number(s) of the Property;
b. the street address of the Property;
c. the name of the person or entity who holds title to the Property;
d. the date on which the person or entity identified in part (c) acquired the
Property include in your answer identification of the deed(s);
e. the square footage and description of the Property.
4
5. Please describe the Property. Include in your answer reference to existing
improvements and existing conditions, if any, vegetation, soil content, and grade
of the land.
6. With respect to the Property described in your answer to Interrogatory Number
Four, please describe the soil conditions of the Property which especially affect
the land and because of which a literal enforcement of the By-law will involve for
the Applicant a substantial hardship.
7. With respect to the Property described in your answer to Interrogatory Number
Four, please describe the shape of the Property which especially affect the land
and because of which a literal enforcement of the By-Law will involve for the
Applicant a substantial hardship
8. With respect to the Property described in your answer to Interrogatory Number
Four, please describe the topography of the Property which especially affect the
land and because of which a literal enforcement of the By-Law will involve for
the Applicant a substantial hardship.
9. With respect to the Property described in your answer to Interrogatory Number
Four, please describe how the soil condition, shape and topography of the
Property is unique when compared to other property in the zoning district or
neighborhood where the Property is situated.
5
10. Please describe the proposed improvements the Applicant desired to construct on
the Property, or the use to which the Applicant would put the Property, for which
it sought a variance.
11. Please describe all alternative plans to the proposed improvements described in
the previous interrogatory which the Applicant discussed with the ZBA for which
a variance from the By-law would not be required.
12. Please explain all reasons which would prevent the Applicant from constructing
its proposed improvements on the Property which would comply with the By-Law
without the need for a variance.
13. Please identify the aspect of the section(s) of the By-Law for which the Defendant
sought a variance; along with any and all evidence reflecting evidence that
supports the relief granted to the Applicant by the ZBA.
14. Please explain how the variance relates to and is necessary for the Applicant to
construct the proposed improvements described in Interrogatory Number Ten.
15. Please describe the hardship the Applicant anticipated it will undergo by the
denial of its request for a variance.
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16. Please describe and identify how the variance granted to the Applicant was done
without substantial detriment to the public good.
17. Please describe and identify how the variance granted to the Defendant was done
with out nullifying or substantially derogating from the intent or purpose of the
By-law.
18. Please identify by name and address each and every person who gave testimony
to the ZBA as a proponent or an opponent at the public hearing respecting the
Applicant's variance petition.
19. For each person named in the proceeding interrogatory please state:
a. whether this person is related to the applicant by profession or family;
b. a summary of the testimony this person gave to the ZBA.
20. Please state and identify the name and address of all witnesses you and or the
ZBA intend to call at the trial of this matter. For each witness named above,
please state a summary of the facts to which the individual will testify including
the basis of their knowledge to so testify.
21. Please state and identify the name, residence, business address, occupation and
specialty of each person you and or the ZBA expect may be called by you or your
attorney as an expert witness at the trial of this action, setting forth:
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(a) the subject matter, in detail, on which each such person may be expected to
testify;
(b) the substance of all facts, in detail, about which each person may be expected
to testify;
(c) the contents of all facts, in detail, about which each person may be expected to
testify; and
(d)a detailed summary of the grounds for each such opinion and the substance of
all facts on which such opinions are based.
22. Please identify and describe all documents the ZBA intends to introduce at trial
including but not limited to plans, public records and reports, by an expert or
otherwise, of any kind and substance respecting this matter.
The Plaintiffs,
MICHAEL F. FURLONG et. als.
By thei • attorney,
Lawipnc4 A. Simeone, Jr., Esq.
Law Offi e of Lawrence A. Simeone Jr.
BBO 4552605
300 Broadway, P.O. Box 321
Revere, MA 02151
(781) 286-1560
Dated : June 27, 2012
8
CERTIFICATE OF SERVICE
I hereby certify that I have served the foregoing document upon the attorney of record for
each other party by delivering it by first class mail on June 27, 2012 to:
Leonard F. Femino, Esquire
#1 2
BBO 6 685
ALEXANDER & FEMINO
One School Street
Beverly, MA 01915
Robin Stein, Esq.
BBO # 654829
City of Salem Legal Department
93 Washington Street
Salem, MA 01970
Law(
aw nce . Simeone Jr.
9
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. LAND COURT DEPARTMENT
CIVIL ACTION NO. 12 MISC459552-JCC
MICHAEL F. FURLONG, MARIA T.
CASTRO, DAVID FRANK, SHANNON M.
O'DONNELL, MICHELE CORMIER,
MARK A. PEREZ, HAROLD C. LE SAGE JR.
DOLORES T. JORDAN, PRISCILLA LORD AND
KRISTEN M. O'CONNOR,
Plaintiffs,
V.
BONNIE BELAIR, RICHARD DIONNE,
JAMIE METSCH, JIMMY TSITSINOS,
ANN HARRIS, As They Are Members
Of The Salem Zoning Board of Appeals,
AND BHCM INC. DBA BREWER HAWTHORNE
COVE MARINA
Defendants
PLAINTIFFS', MICHAEL F. FURLONG, MARIA T. CASTRO, DAVID FRANK,
SHANNON M O'DONNELL MICHELE CORMIER MARK A PEREZ HAROLD C
LE SAGE JR.DOLORES T. JORDAN. PRISCILLA LORD AND KRISTEN M.
O'CONNOR, FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO THE
DEFENDANTS. BONNIE BELAIR, RICHARD DIONNE, JAMIE METSCH, JIMMY
TSITSINOS, ANN HARRIS As They Are Members Of The Salem Zoning Board of
Appeals AND BHCM INC. DBA BREWER HAWTHORNE COVE MARINA
Pursuant to Rule 34 of the Massachusetts Rules of Civil Procedure, the Plaintiffs
request that the Defendants in this matter each respond separately to the following
document requests by producing said documents at the offices of the Plaintiffs'
attorney within thirty (30) days of service.
1
i
DEFINITIONS
]. The term "communication" means any act or instance of transferring,
transmitting, passing, delivering, or giving information, by oral or written
means, including,but not limited to,by way of a note, letter, telegram, telex,
telephone, tape or otherwise.
2. The term "Plaintiffs" means
Michael F. Furlong ("Furlong") is an individual residing at 4 Blaney Street
U1, Salem, Massachusetts 01970.
Maria T. Castro ("Castro") is an individual residing at 4 Blaney Street U2,
Salem,Massachusetts 01970.
David Frank ("Frank") is an individual residing at 4 Blaney Street U3, Salem,
Massachusetts 01970.
Shannon M. O'Donnell ("O'Donnell") is an individual residing at 4 Blaney
Street U4, Salem, Massachusetts 01970.
Michele Cormier ("Cormier") is an individual residing at 4 Blaney Street U5,
Salem, Massachusetts 01970.
Mark A. Perez ("Perez") is an individual residing at 3 White Street, Salem,
Massachusetts 01970.
Harold C. Le Sage, Jr. ("Le Sage") is an individual residing at 3 White Street,
Salem, Massachusetts 01970.
Dolores T. Jordan ("Jordan") is an individual residing at 97 Derby Street,
Salem, Massachusetts 01970.
Priscilla Lord ("Lord") is an individual residing at 33 Carlton Street U4,
Salem, Massachusetts 01970.
Kristen M. O'Connor ("O'Connor") is an individual residing at 33 carlton
Street U3, Salem, Massachusetts 01970.
8. The term ""ZBA" means the members of the City of Salem Zoning Board of
Appeal. Their names and addresses are as follows: BONNIE BELAIR,
RICHARD DIONNE, JAMIE METSCH, JIMMY TSITSINOS, ANN
HARRIS c/o Board of Appeals Office, Salem City Hall Annex, 120
Washington Street, Salem, Massachusetts 01970. The Defendant members of
the Zoning Board of Appeal are hereinafter referred to
collectively as the "ZBA").
9. The term "Property" means 10 White Street and 57 Rear Turner Street, Salem
("the Property"); located in the 1, R-2 and B-1 zoning districts in accordance
with the Salem Zoning By-law ("the By-law").
2
10. The "Applicant and Defendant" means BHCM Inc. d/b/a Brewer Hawthorne
Cove Marina (`BHCM"), a Massachusetts corporation with a principle place
of business located at 10 White Street, Salem, Massachusetts 01970.
11. The term "reflecting" means evidencing, demonstrating, depicting, touching
upon, mentioning, analyzing, noting, evaluating, reviewing, reporting on,
critiquing or showing in any way.
INSTRUCTIONS
1. References too the singular shall include the plural and references to the plural
shall include the singular. The words "and" and "or" shall be construed either
disjunctively or conjunctively as is necessary to bring within the scope of a
request all documents which otherwise might technically be construed to be
outside its scope.
2. In the event that any requested document, prepared prior to the
commencement of litigation, is to be withheld on the basis of a claim of
privilege or work product, each such document should be identified. There
reason for withholding that document should be stated.
3. In the event that you have reason to believe that any document requested
herein has been destroyed, each such document should be identified by date,
author and subject matter and should further be identified with respect to each
paragraph of this request which calls for that document. The reason for the
destruction of that document should be stated.
4. A document in the possession, custody or control of another person is
considered to be in the possession, custody or control of Defendant if
Defendant has a right or privilege to examine it upon request or demand.
REQUESTS
1. Any and all documents referring to or relating in any way to the By-Law which
govern the Applicant's variance petition to the ZBA and the Property; which shall
include a certified copy of the By-Law.
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2. Any and all documents which establish the zoning districts in accordance with the
By-Law in which the Property is located; which shall include a certified copy of
the Zoning Map and City Engineering Department records respecting the City
Atlas, if any.
3. Any and all documents or communications referring to or relating in any way to
determinations and findings made by the Salem Building Commissioner
respecting the Property, the use and the building(s) thereon within the last five (5)
years.
4. Any and all documents reviewed by the Salem Building Commissioner in making
the determination that the proposed construction on the Property as established by
the Applicant, in its' petition for variance, required relief from the By-Law;
include in your any all sections of the By-Law the Building Commissioner
determined the Applicant's proposed construction would need relief from in order
to be allowed.
5. Any and all documents which constitute the records of the Salem Building
Department respecting the Property.
6. Any and all documents with regard to the Property including but limited to:
a. the lot number(s) of the Property;
b. the street address of the Property;
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c. the name of the person or entity who holds title to the Property;
d. the date on which the person or entity identified in part (c) acquired the
Property include in your answer identification of the deed(s);
e. the square footage and description of the Property.
12. Any and all documents constituting and referring to in any way to the Applicant's
petition for variance filed with the ZBA.
13. Any and all documents which establishes the soil conditions of the Property
which especially affect the land and because of which a literal enforcement of the
By-law will involve for the Applicant a substantial hardship.
14. Any and all documents which establishes the shape of the Property which
especially affect the land and because of which a literal enforcement of the By-
Law will involve for the Applicant a substantial hardship.
15. Any and all documents which establishes the topography of the Property which
especially affect the land and because of which a literal enforcement of the By-
Law will involve for the Applicant a substantial hardship.
16. Any and all documents which establish that the soil condition, shape and
topography of the Property is unique when compared to other property in the
zoning district or neighborhood where the Property is situated.
5
17. Any and all documents which establish the proposed improvements the Applicant
desired to construct on the Property, or the use to which the Applicant would put
the Property, for which it sought a variance.
18. Any and all documents which establish alternative plans to the proposed
improvements described in the previous interrogatory which the Applicant
discussed with the ZBA and considered for which a variance from the By-Law
would not be required.
19. Any and all documents or communications which establish the hardship the
Applicant anticipated it will undergo by the denial of its request for a variance.
20. Any and all documents or communications which establish how the variance
granted to the Applicant was done without substantial detriment to the public
good.
21. Any and all documents or communications which establish how the variance
granted to the Defendant was done with out nullifying or substantially derogating
from the intent or purpose of the By-law.
22. Any and all documents filed with the ZBA prior to the ZBA filing its decision
granting the variance with the Salem City Clerk; including any and all reports
6
submitted by any departments, boards or commissions of the City of Salem
commenting or reviewing the proposed construction at the Property.
23. Any and all documents constituting, and referring to or relating in any way to
notices or the notification procedure for the ZBA under the By-law.
24. Any and all documents constituting, referring to or relating in any way to notices
or the notification respecting the public hearing held by the ZBA respecting the
Applicant's petition for variance, including but not limited to any notices, letters
of notification or other correspondence, posted signs or notices and/or published
notices.
25. Any and all documents or communications presented to the ZBA, by the
Applicant or any agent of the Applicant, any person, entity or agency, at the time
of filing, before the public hearing and prior to the ZBA decision which supports
the grant of the variance by the ZBA.
26. Any and all minutes, meeting notes, audio recordings or video recordings of the
ZBA held public hearing respecting the Applicant's variance petition including
without limitation, sign-in sheets or other documents listing those in attendance.
27. Any and all documents, including reports prepared by the ZBA which supports
the decision to grant the variance.
7
28. Any and all documents constituting and purporting to be the decision of the ZBA
on the Applicant's variance petition; including all findings, grounds or notes
established in the official record of the ZBA.
29. Any and all documents or communications the ZBA and the Applicant intend to
introduce at trial including but not limited to plans, public records and reports, by
an expert or otherwise, of any kind and substance respecting this matter.
The Plaintiffs,
MICHAEL F. FURLONG et. als.
By their attorney,
i
Lawr e . Simeone, Jr., Esq.
BBO f5526-05
300 B 'oadway, P.O. Box 321
Revere, MA 02151
(781) 286-1560
Dated : June 27, 2012
8
CERTIFICATE OF SERVICE
I hereby certify that I have served the foregoing document upon the attorney of record for
each other party by delivering it by first class mail on June 27, 2012 to:
Leonard F. Femino, Esquire
BBO #162685
ALEXANDER & FEMINO
One School Street
Beverly, MA 01915
Robin Stein, Esq.
BBO # 654829
City of Salem Legal Department
93 Washington Street
Salem, MA 01970 , A
Lawre ce A. Simeone Jr.
9
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT
CIVIL ACTION NO.: 09-2005-A
KENNETH WALLACE, JOYCE WALLACE, and )
ERICA UDOFF, )
PLAINTIFFS, )
)
V. )
WILLIAM WHARFF and REBECCA CURRANT;,
BETH DEBSKI, RICHARD DIONNE, ANNIE HARRIS, )
ROBIN STEIN, BONNIE BELAIR and JIMMY TSITSINOS, )
BEING REGULAR AND ALTERNATE MEMBERS OF
THE ZONING BOARD OF APPEALS OF THE CITY OF
SALEM, MASSACHUSETTS,
DEFENDANTS n )
n
Y#
z
AGREEMENT FORJUDGMENT;;
By agreement of the parties to the above-captioned action, the following entry shall be
forthwith made on the docket in this action
"A The September 28, 2009 Decision("Decision') of the City of Salem Zoning
Board of Appeals ("ZBA") relative to the real property located at 162 Federal Street, Salem,
Massachusetts (the"Property") shall be amended to include the following additional provisions
and conditions:
L William Wharff("Wharff') shall be substantially responsible for the
construction of the project authorized by the Decision (the "Project').
2. If Wharff seeks to divest himself of substantial responsibility for
construction of the Project, he shall provide written notice of his proposed successor to
John Carr, Esq., counsel to the plaintiffs in this action. If said plaintiffs object to Wharff's
1
proposed successor they shall, within fifteen (15) days of the receipt of the notice thereof,
seek enforcement action of paragraph 1 herein from the City of Salem Building Inspector.
3. Nothing contained herein shall prohibit the sale of each and every of the
eight (8) residential units and appurtenances thereto to be constructed as part of the
Project.
4. Nothing contained herein shall be construed to require Wharff to own any
or all of the Property.
5. Notwithstanding anything herein to the contrary,,in the event of
bankruptcy, death, foreclosure or other"unseen event that prevents"Wharff from
completing the construction of the Project, Wharff's successor may complete the Project.
h3i t",A Prs
B. The Decision is otherwise affirmed.
C. Each party is.to bear its own attorney's,fees and costs in this action.
D. All rights of appeal are hereby waived." K
Respectfully,submitted,
William Wharf Salem Zoning Board of Appeals Kenneth Wallace, et al,
By his Attorney: By its Attorney: By their Attorney:
Scott M. Grover, Esq. Robin Stein, Esq. John H. Carr, Jr., Esq.
Tinti, Quinn, Grover& Frey Assistant City Solicitor 9 North Street
27 Congress Street, Ste. 414 93 Washington Street Salem, MA 01970
Salem, MA 01970 Salem, MA 01970 978-807-3264
978-745-8065 978-338-4082 BBO#075-281
BBO#546-393 BBO#654829
rstein salem.eom
2
s
4�
LAWRENCE A. SIMEONE, Y.A.
ATTORNEY AT LAW I A 011
THE POST OFFICE PROFESSIONAL BUIL NG
300 BROADWAY, P.O. BOX 321 i ILI' rt
REVERE, MASSACHUSETTS 0215LITY CLEfiii. 6i.LEtS, 1iA55,
TELEPHONE: (781)286-1560
FACSIMILE: (781)286-5532
February 17, 2012 RECEIVED
FEB 2 1 2012
e F, Cheryl A. Lapointe, City Clerk DEPT OF PLA<!NING&
Office
_.`. "City e Salem of the City Clerk COMMUNITY DEVELOPMENT
93 Washington Street
Salem, Ma. 01970
Re: Furlong et aL v. Belair, et al.
Land Court No 1 Z-I?'\I`i C 4-/
Dear Sir/Madam:
Enclosed please find a Notice of Filing Complaint pursuant to M.G.L. 40A Section 17,
a copy of said complaint, a copy of the decision of the City of Salem Zoning Board of
Appeal filed February 1, 2012. Kindly stamp the enclosed copy of this letter to confirm
your receipt and return it to this office.
Very tours,
La/rcZ� )A. Simeone Jr., Esq.
cc: City Solicitor's Office
COMMONWEATLH OF MASSACHUSETTS
ESSEX, ss. LAND COURT DEPARTMENT
CIVIL ACTION NO.
MICHAEL F. FURLONG, MARIA T.
CASTRO, DAVID FRANK, SHANNON M.
O'DONNELL, MICHELE CORMIER,
MARK A. PEREZ, HAROLD C. LE SAGE JR.
DOLORES T. JORDAN, PRISCILLA LORD AND
KRISTEN M. O'CONNOR,
Plaintiffs,
V.
BONNIE BELAIR, RICHARD DIONNE,
JAMIE METSCH, JIMMY TSITSINOS,
ANN HARRIS, As They Are Members
Of The Salem Zoning Board of Appeals,
AND BHCM INC. DBA BREWER HAWTHORNE
COVE MARINA
Defendants
NOTICE OF FILING COMPLAINT FOR JUDICIAL REVIEW
PURSUANT TO M.G.L. c.40A Section 17
TO : Cheryl A. Lapointe, City Clerk
City of Salem
Office of the City Clerk
93 Washington Street,
Salem, Ma. 01970
PLEASE TAKE NOTICE that Michael F. Furlong, Maria T. Castro, David Frank,
Shannon M. O'Donnell, Michele Cormier, Mark A. Perez, Harold C. Le Sage Jr., Dolores
T. Jordon, Priscilla Lord, and Kristen M. O'Connor ("the Plaintiffs") have filed in the
Land Court of pursuant to M.G.L.c.40A Section 17, seekingjudicial review of the
2
decision of the Salem Zoning Board of Appeals which was filed in the office of the City
Clerk of Salem on February 1, 2012. A true copy of the said complaint is attached.
The Plaintiffs,
MICHAEL F. FURLONG et. als.
By their ttorney,
L re e A. Simeone, Jr., Esq.
BO 552605
300 Broadway, P.O. Box 321
Revere, MA 02151
(781) 286-1560
Dated: February 17, 2012
3
COMMONWEATLH OF MASSACHUSETTS
ESSEX, ss. LAND COURT DEPARTMENT
CIVIL ACTION NO.12 P\1 j C_ L-j 3`j S
MICHAEL F. FURLONG, MARIA T.
CASTRO, DAVID FRANK, SHANNON M.
O'DONNELL, MICHELE CORMIER,
MARK A. PEREZ, HAROLD C. LE SAGE JR.
DOLORES T. JORDAN, PRISCILLA LORD AND
KRISTEN M. O'CONNOR,
Plaintiffs,
V. COMPLAINT
BONNIE BELAIR, RICHARD DIONNE,
JAMIE METSCH, JIMMY TSITSINOS,
ANN HARRIS, As They Are Members
Of The Salem Zoning Board of Appeals,
AND BHCM INC. DBA BREWER HAWTHORNE
COVE MARINA
Defendants
INTRODUCTION
Plaintiffs, Michael F. Furlong, Maria T. Castro,David Frank, Shannon M. O'Donnell,
Michele Cormier, Mark A. Perez, Harold C. Le Sage Jr., Dolores T. Jordon, Priscilla
Lord, and Kristen M. O'Connor("the Plaintiffs") pursuant to M.G.L. c. 40 § 17 appeals
from the decision of the City of Salem Zoning Board of Appeal ("ZBA") which allowed
the petition of BHCM Inc. d/b/a Brewer Hawthorne Cove Marina's request for approval
of a variance from front, side and rear set backs to allow for the construction of a building
related to boat yard/marina use at the property known and numbered 10 White Street and
57 Rear Turner Street, Salem ("the Property"); located in the I, R-2 and B-I zoning
districts in accordance with the Salem Zoning By-law("the by-law").
PAR IES
For their complaint, the Plaintiffs alleges as follows:
I. The Plaintiff, Michael F. Furlong ("Furlong") is an individual residing at 4 Blaney
Street Ul,Salem, Massachusetts 01970.
2. The Plaintiff, Maria T. Castro ("Castro") is an individual residing at 4 Blaney
Street U2, Salem, Massachusetts 01970.
3. The Plaintiff, David Frank ("Frank") is an individual residing at 4 Blaney Street
U3, Salem, Massachusetts 01970.
4. The Plaintiff, Shannon M. O'Donnell ("O'Donnell") is an individual residing at 4
Blaney Street U4,.Salem, Massachusetts 01970.
5. The Plaintiff, Michele Cormier("Cormier") is an individual residing at 4 Blaney
Street U5, Salem, Massachusetts 01970.
6. The Plaintiff, Mark A. Perez ("Perez") is an individual residing at 3 White Street,
Salem, Massachusetts 01970.
7. The Plaintiff, Harold C. Le Sage, Jr. ("Le Sage") is an individual residing at 3
White Street, Salem, Massachusetts 01970.
8. The Plaintiff, Dolores T. Jordan ("Jordan") is an individual residing at 97 Derby
Street, Salem, Massachusetts 01970.
9. The Plaintiff, Priscilla Lord ("Lord") is an individual residing at 33 Carlton Street
U4, Salem,Massachusetts 01970.
10, The Plaintiff, Kristen M. O'Connor ("O'Connor") is an individual residing at 33
carlton Street U3, Salem, Massachusetts 01970,
2
11. The Defendants as they are members of the City of Salem Zoning Board of
Appeal. Their names and addresses are as follows:
BONNIE BELAIR, RICHARD DIONNE, JAMIE METSCH, JIMMY TSITSINOS,
ANN HARRIS c/o Board of Appeals Office, Salem City Hall Annex, 120 Washington
Street, Salem,Massachusetts 01970.
The Defendant members of the Zoning Board of Appeal are hereinafter referred to
collectively as the "ZBA").
i
12. The Defendant, BHCM Inc. d/b/a Brewer Hawthorne Cove Marina(`BHCM"), is
a Massachusetts corporation with a principle place of business located at 10 White Street,
Salem, Massachusetts 01970.
FACTS
13. The Property consists of assessors parcels 41-0283-0, 41-0284-0, 41-0298-0 also
identified.as 8 White Street, 10 White Street and 57 Turner Rear Street with an area of
approximately seventy-two thousand (72,000±) square feet.
14. The Property possess frontage on White Street and Turner Rear, is improved
with an existing marina/boat yard operating thereon with associated temporary
structuress; and is serviced by existing infrastructure at this time including sewer,
drainage and water.
On information and belief in 2007 the prior permanent marina and boat yard structure(s)were damaged
by fire and subsequently razed.
3
I5, The Property is located in the I, R-2 and B-I zoning districts in accordance
with the Salem Zoning By-Law; further the Property is abutted by a residential dwellings
and a municipal parking lot,
16. The Property is recorded at Book 29838 Page 552 in the Southern Essex
Registry of Deeds(see deed attached hereto); and is subject to Chapter 91 DEP license
plan 1261 dated December 22, 2009 (see chapter 91 license plan attached hereto).
17. The BHCM, the Applicant and operator of the existing marina/boat yard on the
Property sought and received approval of a variance to permit the construction of a new
multi-story boat storage building with a proposed height of thirty-nine (39) feet 9 inches
and lengthof approximately one hundred and sixty-three (163) and 3 inches...
18. The BCHM filed it's application on October 26, 2011 wherein it sought a
variance in.accordance with Section 4.0 of the Salem Ordinance and M.G.L. c, 40A
Section 10 from ZBA to allow for the construction of the said boat storage building with
a proposed front yard and side yard of five (5) feet and a rear yard of one and six tenths
(1.6)feet.
19. The Applicant specifically sought relief from the following provisions of the zoning
by-law:
1. Section 4.0 with respect to minimum front yard set back of 30-ft, within the I
district; and
2. Section 4.0 with respect to minimum rear yard set back of 30-ft, within the I
district; and
4
3. Section 4.0 with respect to minimum side yard set back of 30-ft, within the I
district,
20. Subsequent to which a duly advertised public hearings was held on November 16,
2011 by the ZBA respecting BHCM's application; the hearing was continued to January
18, 2012
21. After the public hearing on January 18, 2012, the ZBA voted to approve the
Defendant's application for variance.
22. The Decision of the ZBA was filed with the City of Salem Clerk's Office on February
1, 2012 (ZBA Decision attached hereto marked Exhibit A,).
COUNT I
(M.G.L. c. 4W617-Vgriance Anneal)
23. The Plaintiffs re-alleges and incorporates as if stated herein the allegations contained
in paragraph#I through# 22 of the Complaint.
24. The approval of the requested variance to reduce the set back requirements in order
that the Applicant may construct a boat yard storage building on the Property was an
abuse of the board's discretion, exceeded the board's authority and was based upon
legally untenable, unreasonable, whimsical, and arbitrary and capricious grounds, for
reasons including but not limited to those stated in its decision.
5
25. The ZBA's grant is based on erroneous and unlawful findings.
26. Plaintiffs are persons aggrieved by the decision of the ZBA allowing the application
for a variance as set forth herein.
WHEREFORE,the Plaintiffs request that the Court grant the following relief:
1. As to Count I, determine that the finding made by the ZBA was arbitrary,
capricious, based upon untenable grounds and exceeded the authority of the
board; and
2. Annul the ZBA decision in that it exceeds the authority of the board; and
3. Grant such relief as justice and equity may require.
The Plaintiffs,
MICHEAL F. FURLONG et. al.
By their o ey,
en A. Simeone, Jr., Esq.
O# 52605
300:Broadway, P.O. Box 321
Revere, MA 02151
(781)286-1560
Dated: February 17, 2012
6
A jj �••/��c`II1�
CITY OF SALEM, MASSACHUSETTS
ik
j BOARD OF APPEAL
yi
120 WAST IINGTON SI7iEgI'♦BALcnf,MASSACHUSF:I s01970
KIMfBERLEY DRISC(11J, Tele:978-619-5685 FAX:978-740-0404
MAYOR
Cl H
N
rn
a
February 1, 2012 >m T
s
Decision p
n
City of Salem Zoning Board of Appeals H
Petition of BHCM,1NC. D/B/A BREWER HAWTHORNE COVE MARINA requesting Variances from front,
;ide and rear yard.setback:requirements to construct anew building on 10 WHITE STREET and 57 REAR
Tq�N. R STREET related to the boat yard/marina use of the property(1, R-2 and B-i).
A public hearing on-the above Petition was opened on November 16, 2011 pursuant to Mass General
.Law Ch.40A, § 11. The hearing was continued to January 18, 2012 and closed on that date with the
c following Zoning Board of Appeals members present: Annie Harris (acting as chair), Richard Dionne,
Jamle Metsch,Jimmy Tsitsinos and Bonnie Belair,
Petitioner seeks a Variance pursuant to Section 4.0 of the City of Salem Zoning Ordinances.
Statements of fad:
1. ,Attorney George W. Atkins III represented petitioner BHCM, Inc. (DBA Brewer Hawthorne Cove
Marina) at the hearing.
2. In a petition date-stamped October 26, 2011, petitioner requested a Variance pursuant to Sec.
4.0 of.the Salem Zoning Ordinance to construct anew building on 10 White Street and 57 Rear
Turner Street related to the boat yard/marina use of the property.
3. Accompanying the application form was a statement attesting to the unusual shape of the
parcel, waterfront soil conditions, mixed zoning of the site, and limited access at the end of
White Street, and stating that enforcement of the dimensional regulations of the Salem Zoning
Ordinance would result In hardship because the petitioner would not be "reasonably able" to use
the property for a marina and boat yard.
4. The Board received three letters from residents opposed to the project, and one in support.
5. At the hearing on January 18, 2011, numerous neighbors spoke about the petition, several in
favor of it and several against it. View was.,a commonly cited reason for both support and
6. opposition, with some neighbors preferring the view offered by the proposed new building, and
others preferring that of the previous marina structure.
7. Also at the January 18 hearing, Attorney Atkins stated that the proposed location for the new
building was operationally best for the marina, and would have the least impact on views in the
neighborhood. A view corridor study and shadow study were submitted at the hearing.
The Board of Appeal, after careful consideration of the evidence presented at the public hearing, and
after thorough review of the plans and petition submitted, makes the following findings:
1. Literal enforcement of the provisions of the Zoning Ordinance would require the
applicant to place the building in such a location the Board finds to be less appropriate
than the one proposed. The view analysis presented showed that impact of views from
the neighborhood would be lessened if the building were placed where proposed.
2. Desirable relief may be granted without substantial detriment to the public good and
without nullifying or substantially derogating from the intent or purpose of the zoning
ordinance, since impacts to the neighborhood were shown to be less substantial if sited
as proposed rather than where it would be allowed by right.
3. In.permitting such change, the Board of Appeals requires certain appropriate conditions
and safeguards as noted below.
On the basis of the above findings of fact and all evidence presented at the public hearing including, but
'hot limited to;the Plans, Documents and testimony, the Zoning Board of Appeals voted four (4) in favor
(Harris,.Metsch, Dionne and Tsitsinos) and one (1) opposed (Belair), to grant the requested Variance
under Section 4.0 of the Ordinance to allow construction of a marina building as shown on the plans
submitted, subject to the following terms, conditions and safeguards:
1. Petitioner shall comply with all city and state statutes, ordinances, codes and regulations.
Z. All construction shall be done as per the plans and dimensions submitted to 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 a building permit prior to beginning any construction.
5. A Certificate of Occupancy is to be obtained.
6. Petitioner shall obtain street numbering from the City of Salem Assessor's Office and shall
display said number so as to be visible from the street.
7. Petitioner is to obtain approval from any City Board or Commission having jurisdiction
including, but not limited to, the Planning Board.
8. The existing Quonset but is to be removed from the property.
Annie H is,
Salem Board of Appeals
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 of filing of this decision in the office of the City Clerk.
Pursuant to the 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
has been,filed.with the Essex South Registry of Deeds,
ZONING CHART
Required Proposed
Lot Area 40,000 SF 1.8 Ac Complies
Lot Frontage 150 FT 39.99 FT Complies as Non-Conforming Lot
Lot.Width 150 FT 240 t FT Complies
Lot Coverage 40% 14.3% Complies
Front Yard 30 FT 5 FT Variance
Side Yard 30 FT 5 FT Variance
Rear Yard 30 FT 1.6 FT Variance
Maximum Height 45 FT 39.9 FT Complies
Parking:
(A) Service Industry 17-20 115 Complies
(B) Recreation 46 115 Complies
QUITCLAIM DEED 2010100500272 Bk;29838 P�;562
10/06/2010 01:21 DEED Pp 1/
Hawthorne Cove Marina, Incorporated, a Mass,achusetts,,corporation, of 10 White Street, Salem,
MA 01970,
for consideration of Two Million Three Hundred and Thirty Five Thousand ($2,335,000.00)
Dollars,
grants to BHCM Inc., a Massachusetts corporation,of 10 White Street, Salem, MA 01970,
with QUITCLAIM COVENANTS the premises in Salem,Massachusetts described on the
attached Exhibit A.
For Grantor's,title see deed recorded at Essex South Registry of Deeds, Book 11868, Page 86.
Witness my hand and seal this 301h day of September, 2010;
Russell T. Vickers, President and Treasurer
of'Hawthome Cove Marina, Incorporated
COMMONW,EALTP OF MASSACHUSETTS
Essex, as. September 30, 2010
On this 301h day of September, 2010,before,me, the undersigned notary public,
personally appeared Russell T. Vickers, President and Treasurer.of Hawthorne Cove Marina,
Incorporated,:proved to me through satisfactory evidence of identification, w was my
personal knowledge of him, to be the person whose name is signed on th eceding or attached
document, and acknowledged tome that he signed it voluntarily on alf of Hawthorne Cove
Marina, Incorporated for its stated purpose,
ScUthern Bills District
IIII111111I�IIIIIIIII�II VIII IDte: 10/36Doot0601,ell PM
00
.013689' s4378istrict:280633 For $10,647.5a COW $2,335-000-0
SoVlhirn Essex-0I pt riot NepU try
10106/2010 01:04 PM DEED Pp: 113
Exhibit A—Erooerty Description
8-10 White Street, Salem, Massachusetts
R57 Turner Street, Salem,Massachusetts
Three parcels of land, with the buildings and.improvements thereon, located in Salem, Essex
County, Massachusetts and bounded and described as.follows:
EARCEL ONE-
The registered land with the buildings thereon bounded and described as follows:
SOUTHWESTERLY by White Street four and 53/100 (4.53) feet;
NORTHWESTERLY fourteen and 73/100(1.4.73) feet, and
NORTHEASTERLY measuring on the upland one hundred thirty and 83/100(130.83)
feet by land now or formerly of the Russell Sim Tanning
Company;
SOUTHERLY by Salem Harbor;
SOUTHWESTERLY by land now or formerly of Mary H. Remon measuring on the
upland two hundred fifty and 57/100(250.57) feet; and
NORTHWESTERLY by land now or,fo}merly of Fannie Towsinski and by the end of
said White Street one;Hundred fifty three and 99/100 (153.99) feet.
All of said boundaries, except the water lines, are determined by the Land Court to be located as
shown upon plan numbered 14857-A, drawn by Thomas A. Appleton, Engineer, dated May
1931, as modified and approved by the Land Court, filed in the Land Registration Office, a copy
of a portion of which is filed with original Certificate of Title 9278 in the Southern Registry
District of Essex County.
The above described land is subject to easements as set forth in a deed•given by John 1. Becket et
al to William Hunt, dated July 28, 1840, duly recorded in Book 320,page 2, in said Essex South
Registry of Deeds, so far as in force and applicable.
J
PARCEL TWO:
Beginning at the Northeasterly comer of White.Street at a point 25,4 feet Southerly from the
tenement house or adjoining land now or formerly of Whipple et al; thence running
SOUTHWESTERLY on a line parallel with and one(1) foot from the storehouse on the
premises about 116 feet to land of Darrit; thence running
SOUTHEASTERLY 17.7 feet and Southwesterly about 25 feet to land of Estate of
Albert Whipple, both courses by land of Damit; thence running
SOUTHEASTERLY about 64 feet by land of said estate to land of Lewis& Lord;
thence running
NORTHEASTERLY by land ofLewis & Lord 139.9 feet to White Street; thence
running
NORTHERLY by the fence by White Street about 44 feet to the corner of said
storehouse; thence running more
NORTHERLY 413 feet to the point begun at by White Street,
PARCEL THREE:
The land with the buildings thereon, adjacent to Turner Street and Salem Harbor shown as Lot A
on a plan entitled"Subdivision of a Portion of the Estate of Clara C. Miller, Salem, Mass.,23
September, 1958, Chas. H. Morse& Sons Engrs. Haverhill, Mass.", recorded with Essex South
District.Registry of Deeds Book 4519, Page 189 and bounded and described as follows:
Beginningat a point on the curb adjacent to Tumor Street by land now or late of Whipple and a
bank wall, and running
SOUTHEASTERLY by Turner Street and right of way, fifteen and 82/100 (15.82) feet
to Parcel "B" as shown on plan aforesaid; thence running
NORTHEASTERLY by said Parcel B, thirty-seven and 46/100 (37.46) feet to a stake;
thence running
SOUTHEASTERLY by said Parcel B, ninety-three(93) feet to a sea wall; thence
running
NORTHEASTERLY by the Sea Wall, one hundred and fifteen and 02/100(115.02) feet
to a point; thence running
NORTHWESTERLY by the Dock,one hundred thirty-three and 03/100(133.03) feet;
thence turniri
NORTHEASTERLY by said William M..Gilley, et ux, one hundred seventeen and
54/100(117,54) feet to land now or formerly of Towinski; thence
running
SOUTHWESTERLY by said land now or formerly of Towinski, twenty-four and 83
(24,83).feet to the bank wall at land of Whipple; thence turning
and running in a more
SOUTHERLY direction by said land of Whipple, eighteen (18) feet; thence
running a
WESTERLY direction by said land of Whipple, twelve and 50/100(12.50) feet
to land now or formerly of Clay, thence running
SOUTHEASTERLY on aline parallel with the side of the barn and three(3)inches
distant therefrom,twenty-four and 10/100 (24.10) feet; thence
running
SOUTHWESTERLY by said.landllnf Cley tyelve and 50/100(12,50)feet; thence
running
SOUTHEASTERLY by land formerly of Clay and now or formerly of Kapka, eighty-
seven
ightyseven (87) feet to a point, thence running
SOUTHWESTERLY by said land of Kapka, six.and 62/100(6.62) feet; thence running
WESTERLY by land of Kapka, fifty(50) feet to said Turner Street and the point
of beginning.
Together with all right, title and interest in and to the dock,pier and flats adjoining.
VC'�N 5
�� II Illllillllllllllllllllllllllul IIID
2010010800401 BONN Pg'209
0110012010 02:17 LIM PE 110
�IYR
T=Mmilaft of Aussat!maw
No. 12621
i.
kereas, Hawthorne Cove Marina
of •- Salem in the County of -- Essex -- and Commonwealth aforesaid, has applied to the
Department of Environmental Protection for license to -- construct and maintain.a 2,200 square
foot single story marina building; install and maintain gas, water, sewer and electrical utility lines
and remove two (2) existing trailers ----
and has submitted plans of the same; and whereas due notice of said application has been
given, as 'required by law, to the-- Mayor and City Council-- of the — City of Salem; -----.
NOW, said Department, having heard all parties desiring to be heard, and having fullyconsidered
said application, hereby, authorizes and licenses the said
— Hawthorne Cove Marina —, subject to the provisions of the ninety-first chapter of the General
Laws, and of all laws which are or may in force applicable thereto, to — construct and maintain
a 2,200 square foot single story marina building; install and maintain gas, water, sewer and
electrical utility lines and remove two (2) existing trailers
in and over the waters of -- Salem Harbor -- at,10 White Street — in the -- City -- of -- Salem --
and in accordance with the locations :shown and.details indicated on the accompanying DEP
License Plan No. 12621, (2 sheets).
.i
- PAINTED 0"RWYCILD PAPER
License No. 12621 Page 2
The structures hereby authorized shall be limited to the following uses: to provide for office and
marina support space, restroom facilities and utilities to service the proposed marina building.
SPECIAL WATERWAY'S CONDITIONS
1. This license is valid for 30 years from the date of Issuance. By written request of the licensee for
an amendment, the Department may grant a renewal for the term of years not to exceed that
authorized in the original license.
2. Any utility services provided at the mgrina;4lil be constructed and maintained in compliance
with all applicable local and state requirements:
Please see page 3 for additional conditions to this license. ----------------------—__—--------_-.____-
_- ------__- _________----------------------------------------
Duplicate of said plan, number 12621 on file in the office of said Department, and original of said
plan accompanies this License, and is to be referred to as a part hereof.
License No. 12621 Page 3
STANDARD WATERWAYS I ICFNSE CONDITIONS
1. Acceptance of this Waterways License shall constitute an agreement by the Licensee to conform to all terms and conditions
stated herein.
2. This License is granted upon the express condition that any and all other applicable authorizations necessitated due to the
provisions hereof shall be secured by the Licensee gdQ to:the commencement of any activity or use authorized pursuant to this
License.
3, Any change in use or any substantlai structural alteration of any structure or fill authorized herein shall require the issuance
by the Department of a new Waterways License In accordance with the provisions and procedures established In Chapter 91 of
the.Massachusetts General Laws. Any unsulhorized substantial change in use or unauthorized substantial structural alteration
of any structure or fill authorized herein shall render this Waterways License void.
4. This Waterways License shall be revocable by the Department for noncompliance with the terms and conditions set forth
herein. Thlelloense may be revoked after the Department has given written notice of the alleged noncompliance to the
Licensee and those persons who have filed a written request for such notice with the Department and afforded them a
ressonable opportunity to correct said noncompliance. Failure to correct sold noncompliance after the Issuance of a written
notice by the:Department shall render this Waterways Lioense.vold and the Commonwealth may proceed to remove or cause
removal of any structure or fill authorized herein at the Oxpens#;pf the Licensee,its successors and assigns as an unauthorized
and unlowful.structure and/or fill,
5. The structures and/or fill authorized herein shall be maintained in good repair and In accordance with the terms and
conditions stated herein and the details indicated on the accompanying license plans.
5: Nothing In this Waterways License shall be construed as authorizing encroachment in, on or over property not owned or
controlled by the Licensee,except with the written consent of the owner or owners thereof.
7. This..Waterways License is granted subject to all applicable Federal, State, County, and Municipal laws, ordinances and
regulations including but not limited to a valid final Order of Conditions Issued pursuant to the Wetlands Protection Act, G.L.
Chapter 131,9..40',
B. This Waterways License is granted upon the expressconditlon that the use of the structures and/or fill authorized hereby
shall bean strict conformance with all applicable requirements and authorizations of the DEP.
9. This License authorizes structure(s)and/or fill on:
X Private Tidelands. In accordance with the public essemant that exists by law on private tidelands,the licensee shall allow
the public to use and to pass freely upon the are;of the subject property lying between the high and low water marks,for
the purposes of fishing,fowling,navigation,and the natural.derivatives thereof.
_Commonwealth Tidelands. The Licensee shall not restrict the publics right to use and to pass freely, for any lawful
purpose,.-upon lands lying seaward of the low water mark. Sold lands are held In trust by the Commonwealth for the
benefit of the public:.
a Great Pond of the Commonwealth.. The Licensee shall not resMq the public's right to use and to pass freey upon lands
lying seaward of the high watermark for any lawful tpurpose,
_Navigable.River or Stream, The Licensee shall not resWcl the public's right to use and to pass treaty, for any lawful
purpose, in the waterway.
No restriction on the exercise of these public rights shell be imposed unless otherwise expressly provided in this license.
10. Unless otherMse, expressly provided by this license, the licensee shall not limit the hour:of availability of any areas of the
subject property designated for public passage,nor place any gates,fences,or other structures on such areas in a manner that
would impede or discourage the free flow of pedestrian movement thereon,
I
License No. 12621 Page 4
The amount'of tidewater displaced. by the work hereby authorized has been ascertained by said
Department,.and compensation thereof has beewmade by the said -- Hawthorne Cove Marina -- by
Paying into the treasury of the Comm6o' Ith =,iero dollars and zero cents ($0.00) for each
$0.00)
cubic yard so displaced, being the amount hereby assessed by said Department. '(0.0 cu, yds.
Nothing in this License shall be so construed as to impair the legal rights of any person. This
License shall be void unless the same end the accompanying plan are recorded within 60 days
from the date hereof, in the Registry of Deeds for the County of-- Essex ----
IN WITNESS WHEREAS, said Department of Environmental Protection have hereunto set their
hands this &wenty-second day of December in the year two thousand and nine
Program. Chief Department ofEnvironmental
Protection
THE COMMQNWEA4,TH QF_MASSACHUSETTS
the said —
--the further sum of—
the amount determined by the Governor asand equitable charge for rights and privileges
hereby granted in the land of the Co eafth.
BOSTON,
PpFeyed- by the GeVBFf;GF.
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MARINA BUILDING REPLACEMANT
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LICENSE N0.1WI _.
` Rtl Ari MpAfdMNG'..THE PETITION OF., Approved by Department of Env1ronmemel Noteolion
A,rl� to I `bOW,MARINA Oe1a DEC 2 2109'
SAf-NRM S .R�PI,ACEMANT
0QR G o eq
CITY OF SALEM, MASSACHUSETTS
-' BOARD OF APPEAL
\ � 120 WASHINGTON STREET♦ SALEM,MASSACHUSETTS 01970
TELE:978-619-5685 FAx:978-740-0404
KIMNE.RLEY DRISCOLL
MAYOR
A
rn �
February 1, 2012 rrrn
m� 'D
Decision 3
3
CA
D
City of Salem Zoning Board of Appeals fA
Petition of BHCM, INC. D/B/A BREWER HAWTHORNE COVE MARINA requesting Variances from front,
side and rear yard setback requirements to construct a new building on 30 WHITE STREET and 57 REAR
TURNER STREET related to the boat yard/marina use of the property (I, R-2 and B-1).
A public hearing on the above Petition was opened on November 16, 2011 pursuant to Mass General
Law Ch. 40A, § 11. The hearing was continued to January 18, 2012 and closed on that date with the
following Zoning Board of Appeals members present: Annie Harris (acting as chair), Richard Dionne,
Jamie Metsch,Jimmy Tsitsinos and Bonnie Belair.
Petitioner seeks a Variance pursuant to Section 4.0 of the City of Salem Zoning Ordinances.
Statements of fact:
1. Attorney George W. Atkins III represented petitioner BHCM, Inc. (DBA Brewer Hawthorne Cove
Marina) at the hearing.
2. In a petition date-stamped October 26, 2011, petitioner requested a Variance pursuant to Sec.
4.0 of the Salem Zoning Ordinance to construct a new building on 10 White Street and 57 Rear
Turner Street related to the boat yard/marina use of the property.
3. Accompanying the application form was a statement attesting to the unusual shape of the
parcel, waterfront soil conditions, mixed zoning of the site, and limited access at the end of
White Street, and stating that enforcement of the dimensional regulations of the Salem Zoning
Ordinance would result in hardship because the petitioner would not be "reasonably able" to use
the property for a marina and boat yard.
4. The Board received three letters from residents opposed to the project, and one in support.
5. At the hearing on January 18, 2011, numerous neighbors spoke about the petition, several in
favor of it and several against it. View was a commonly cited reason for both support and
6. opposition, with some neighbors preferring the view offered by the proposed new building, and
others preferring that of the previous marina structure.
7. Also at the January 18 hearing, Attorney Atkins stated that the proposed location for the new
building was operationally best for the marina, and would have the least impact on views in the
neighborhood. A view corridor study and shadow study were submitted at the hearing.
The Board of Appeal, after careful consideration of the evidence presented at the public hearing, and
after thorough review of the plans and petition submitted, makes the following findings:
1. Literal enforcement of the provisions of the Zoning Ordinance would require the
applicant to place the building in such a location the Board finds to be less appropriate
than the one proposed. The view analysis presented showed that impact of views from
the neighborhood would be lessened if the building were placed where proposed.
2. Desirable relief may be granted without substantial detriment to the public good and
without nullifying or substantially derogating from the intent or purpose of the zoning
ordinance, since impacts to the neighborhood were shown to be less substantial if sited
as proposed rather than where it would be allowed by right.
3. In permitting such change, the Board of Appeals requires certain appropriate conditions
and safeguards as noted below.
On the basis of the above findings of fact and all evidence presented at the public hearing including, but
not limited to, the Plans, Documents and testimony, the Zoning Board of Appeals voted four (4) in favor
(Harris, Metsch, Dionne and Tsitsinos) and one (1) opposed (Belair), to grant the requested Variance
under Section 4.0 of the Ordinance to allow construction of a marina building as shown on the plans
submitted, subject to the following terms, conditions and safeguards:
1. Petitioner shall comply with all city and state statutes, ordinances, codes and regulations.
2. All construction shall be done as per the plans and dimensions submitted to 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 a building permit prior to beginning any construction.
5. A Certificate of Occupancy is to be obtained.
6. Petitioner shall obtain street numbering from the City of Salem Assessor's Office and shall
display said number so as to be visible from the street.
I
7. Petitioner is to obtain approval from any City Board or Commission having jurisdiction
including, but not limited to, the Planning Board.
8. The existing Quonset but is to be removed from the property.
WY lA 0 O v 1 Nc7L
Annie Harris,
Salem Board of Appeals
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 of filing of this decision in the office of the City Clerk.
Pursuant to the 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
has been filed with the Essex South Registry of Deeds.
ZONING CHART
Required Proposed
Lot Area 40,000 SF 1.8 Ac Complies
Lot Frontage 150 FT 39.99 FT Complies as Non-Conforming Lot
Lot Width 150 FT 240 t FT Complies
Lot Coverage 40% 14.3% Complies
Front Yard 30 FT 5 FT Variance
Side Yard 30 FT 5 FT Variance
Rear Yard 30 FT 1.6 FT Variance
Maximum Height 45 FT 39.9 FT Complies
Parking:
(A) Service Industry 17-20 115 Complies
(B) Recreation 46 115 Complies
Dolores T. Jordan
From: Kristen O'Connor[kikisalem73@gmail.coml
Sent: Wednesday, November 16, 2011 8:18 AM
To: Dolores T. Jordan
Subject: Re: Urgent---- Please respond thank you.
Follow Up Flag: Follow up
Flag Status: Flagged
I live at 33 Carlton Street and my condo unit faces the water. One of the main reasons why I
bought this place in 2006 was for the view of the water. By taking this view away it will
decrease the value of my home. I will be looking at a building instead of the boats in the
water. The Marina also abuses the neighborhood with parking and hauling in and out of boats.
Parking is hard to come by in Salem and the Marina members and guests park on White Street
all the time which is residential parking only. They also park in the Ferry lot and take up
all of those spaces as well. I work from home and I see all of this happening. The other main
issue is abusing the roadway with hauling in and out these huge boats on very large trucks.
White street is not made for this and when they come out on Derby they always have to use the
sidewalk as part of the course. This is a small neighborhood that should have a small
neighborhood marina, not a franchise! Brewers Marina doesn't respect or care about the locals
in the neighborhood. All they care about is how to make more money. They forget that we all
live here everyday and it is our homes that mean the most to us.
Sent from my iPhone
On Nov 16, 2011, at 3:28 AM, "Dolores T. Jordan" <dteiordan(dverizon.net> wrote:
> net]
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Zoning Board
January 18, 2012
I Dolores Jordan come before the board tonight to express my feelings regarding the proposed building
the Brewer marina wishes to build on their parcel of land bordering the Salem waterfront at the foot of
White Street in Salem.
I feel very strongly we all need to compromise and no one should be excluded from the negotiation in
getting the results that will satisfy all neighbors, boat owners the Brewer marina ownership and
management.
To be successful in our neighborhood the owners of Brewer marina need to plan wisely and not destroy
a community that works together, and loves to live where they live. The ownership needs to understand
no neighbor is against growth and prosperity but they also need to understand they are not in this alone
since they have abutters and a neighborhood that existed before the marina came on site and our close
community takes pride in maintaining a historic past, present and future of our properties.
The business of NIMBy should not be a factor with this proposed building plan. People live here before
the proposed building was planned they purchased homes and condos for the view to the water and paid
hard earned money for this location. Salem is starting to become a jewel of a city and with the expansion
of the waterfront and the prospect of beauty of the seascape changing for the better it is as important to
watch and manage our waterfront as it is in land based historic districts.
We need to consider carefully what we are placing on the waterfront and elsewhere in the city. To further
develop our waterfront we need to consider the size of buildings, access to the waterfront and physical
placement of structures. No one should lose the right to loose the view and access to our waterfront
because the owners of waterfront property wish to develop their land with buildings that are not proper in
placement or the size of the structure they Planned.in a compact small physical area.
Presently the size of the building in its height alone will obstruct the view to the waterfront, affecting not
only residents but people who will come to Salem by ferry, cruise ship or yachting visitors. The parcel of
land the marina presently owns is very small in physical size.
When we experienced a fire several years ago at this location a 2 story building burned we were fortunate
the wind was not brisk that evening the fire vehicles and fire personnel were unable to drive closely to the
perimeter of the building to contain the fire it was a true blessing that the fire didn't spread. My sister at
the time was an invalid and trying to think of escaping from our home and packing valuable papers during
a raging fire was a nervous time for all of us who viewed the flames. The flames shot at least 50 ft into the
air and needless to note a fire at a marina is always a serious concern to all residents.
The marina plans to do heavy repair work in this proposed new building and the chances of a fire will be
constant even with the best protective measures in place. Materials that are highly flammable are used on
boats in their repair and this is another grave concern for the abutters.
Basically, at the present time large heavy vehicles coming to the marina property drive over our sidewalks
to make the turn to either Derby Street and more often to Carlton Street which is illegal and damages our
home foundations. The marina plans include huge expansion to an overly crowded parking area and their
use of one access street presently entering White Street is heavily travelled.. All traffic to their marina and
proposed new facility will enter and exit by White Street.
Two exits are available to this proposed expansion but this poses rrajgranother concern for the
neighbors, a large work space to haul and work on boats, yachts being transports to a congested, narrow
street area. No consideration was ever given to use Turner Street and rightly so since it houses a
beautiful historic property named The House of Seven Gables. Heavy traffic and vehicles are not in my
view appropriate for Turner Street.
c�
Many neighbors who live in closer proximity to the proposed upscale building plan residing on White and
Blaney streets are not being considered by the marina owners as to our wishes and we feel our voices
need to be considered and their plans modified to a proper sized building that is to be built.
My feeling is that Brewer needs to compromise their future plans of their proposed building with
neighbors, abutters and come to a fruitful decision that is beneficial to both the marina and the
neighborhood.
Thank you
Dolores Jordan 97 Derby Stand White Streets, Salem MA 01970 dtejordan@verizon.net
Family owned property for 100 years
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55 TURNER STREET, SALEM,MASSACHUSETTS 01970-5618
(978)745—0761 jzby@comcast.net
January 17, 2012 R E E I IV
Rebecca Curran, Chair JAN 17 2012
Zoning Board of Appeals DEPT,OF PLANNING&
Planning Department COMMUNTV DEVELOPMENT
120 Washington Street
Salem, MA 01970
Re: Brewer at Hawthorne Cove Marina Variance
Dear Ms. Curran and Board Members,
My name is John Zbyszynski I live 55 Turner St. and my property directly abuts the
marina on two sides. I support the granting of a variance for the construction of a marina
building as proposed. My reasons for supporting this project are:
1. The location of the building is the least disruptive to the neighborhood. Its
location abuts a parking lot and the entrance on White Street
2. It sites the work and repair area of the marina away from most of the houses that
abut the property thus limiting noise and other disruption.
The management of the marina did present this plan to abutters and neighbors before it
was submitted for variance and have proven to be concerned with the impact on the
neighborhood. I have found the current management to be responsive and cooperative
and willing to work with us on any concerns we may have.
I am a member of the Historic Derby Street Neighborhood Association and have attended
most if not all of its recent meetings and to the best of my knowledge the HDSNA has
never voted on taking a position on the construction of this building.
Thank you for your consideration.
Sincerely,
I
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J Zbyszyn i
7
55 Turner Street
Salem, MA 01970-5618
(978) 745-0761
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