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MINUTES OF THE BOARD OF APPEAL MEETING - JANUARY 11 , 1989
A meeting of the Salem Board of Appeal was held Wednesday, January 11 , 1989
at 7:00 p.m. on the second floor of One Salem Green. Notice of the hearing
having been duly published in the Salem Evening News on December 28, 1988
and January 4, 1989• Abutters and other interested persons were notified
by mail.
Present at the meeting were Members Bencal, Fleming, Luzinski, Nutting,
Associate Member LaBrecque; William Munroe, Inspector of Buildings, James
Santo, Assistant Inspector of Buildings, Recording Secretary Brenda Sumrall.
The meeting was called to order at 7:03 p.m. by the Chairman, James Fleming.
Mr. Labrecque was appointed a voting member.
103 Highland Avenue - William Katsapetses
Mr. Fleming: this is regarding an appeal of the Building Inspectors denial
of a building permit which was denied by the Board and subsequently remanded
back to us by the Courts. There is no need to read the petition because we
have a petition on file and it is the same petition sent back to us. There are
• two pieces of communication which I have, one is a letter relative to the property
from Neil Harrington,Councillor-at-Large, opposing the granting of the Variance
and another is a petition that was sent unsigned dated January 5, 1989 containing
a page and a half of names and the next is a letter from John Lunt, 6 Greenway
Rd. , which you all have copies of, John and Marlene Lunt relative to their
opposition, these will be entered into the record. Mr. Luzinski: the one with
all the names is in opposition? Mr. Fleming: yes, the problem `with the name
one is that it was transmitted with just the names attached to it, we will take
that as their being in opposition. Mr. Nutting: you don' t want to read the
Councillor's letters. Mr. Lunt: There was a letter attached to the petition
Mr. Fleming: we see a letter dated January 5th, it's in the record that way
and if you speak out of order again you won' t speak for the rest of the night
and I'm telling the rest of the people, there are too many people here to sit
here and have a disorganized meeting, it you want to say something you will have
chance it that opportunity arises and you will speak once, but nobody will speak',.
out of turn. Thank you. Mr. Nutting: along with Councillor Harrington's
letter requesting the Board to deny the petition, we have from Councillor-at-
Large McCabe stating his opposition. Mr. Fleming: the record will reflect there
is also a letter from Councillor McCabe in opposition to the granting of this
petition has also been received. That takes care of the administrative portion.
This is before us and has been advertised. Mr. Bencal: this was not advertised.
Mr. Fleming: it wasn' t advertised, I thought we advertised. Ms. Sumrall: Ilw
contacted Mr. Sheehan regarding the advertisement and he at that time said there
was no need to advertised, you were on vacation so I contacted Mr. O'Brien the
City Solicitor and he agreed with Mr. Sheehan there was no need as long as
abutters were notified, they were all sent copies of the agenda. Mr. Fleming:
• that's fine then. Mr. Nutting then read the remanded order "This matter came
on to be heard upon Plaintiff's motion for Partial Summary Judgement as to
Count IV of the Plaintiffs' complaint, as amended. After hearing, the motion
for Partial Summary Judgment is allowed for the reason that the Board's finding
of fact No. 5 is based on an error of law. It is therefore ordered that the
MINUTES - JANUARY 11 , 1989
page two
• 103 Highland Ave. (continued)
decision of the Salem Board of Appeal filed with the City Clerk on April 13,. 1987,
denying the Plaintiffs' application for variance, be and hereby is annulled and
the proceedings are remanded to the Salem Board of Appeal for reconsideration
of the Plaintiffs' application for variance" . Signed by Richard S. Kelley
Justice of the Superior Court. He then read finding number 5 of the said
decision. "The Board futher finds that the lot in question does not contain
5000 square feet of land, a condition necessary for the petition to be considered
under the provisions of Massachusetts General Law Chapter 40A. , Section 6. In
making this finding, the Board relys on the calculations and measurement performed
for the Board by the Engineering Department" . James Fleming: The matter, as
it stands before us, has been remanded back, that is, ordered back for our
consideration again because the Court has found that finding in error. We will
limit ourselves to the finding of the Court. Mr. Sheehan, I believe you
represent the Katsapetses' , I will have you address the Board relative to the
order of the Court. If we proceed to go beyond anything other than sending it
back to Court I will open up for public comment.
William H. Sheehan, III, Esq. , representing William & Thomas Katsapetses who
own the property at 103 Highland Ave. , which is located on the corner of
Highland Ave. and Greenway Rd. : The issue is whether or not to grant at variance
from the terms of the Zoning Ordinance as was requested in their original
application which was denied by a vote of two to two and an appeal was taken
from that denial and as a result of a motion for partial summary judgement, the
court have found that the Board mistook,if you will, the effect of that statute
• which says if there are 5000 sq. ft. then you do not need a variance, that is
because of the grandfather law. Mr. Fleming: that is the understanding of the
Board, it may not have come out well in that particular decision, but the Board
agrees with you. If there were 5000 feet and if there were 50 feet of frontage
then you would be grandfathered and that lot would not be a subject for this
meeting. Attorny Sheehan: the question before this Board is, should you issue
the variance, you have the power to, the question is will you. I respectfully
suggest you should grant this variance, because the three requirements in the
statute for an issuance of a variance are met in this situation. The reason I
suggest we meet those requirements are; number 1 , we have to have a special
condition that pertains to this lot that does not pertain to other lots and you
certainly have that here, you have presently a house that sits on the lot but
there's no occupancy permit for it, its an economic waste and the reason for this
situation is the shape of the lot and it is this shape that created the lot to
begin with, because when they bought the property they were shown a lot of land,
a plot plan which showed in excess of 5000 square feet and based on that plan
the building inspector issued the permit and based on that plan they purchased
the property. As a matter of fact, there is not 5000 sq.ft. , I have been unable
to get two engineers to agree on just how many square feet there are. Estimates
range from 4,974 to 4,986 or 87 sq. ft. and its all because of the shape. Mr.
Rouleau, Salem Engineer Dept. , calculates 4,974 sq.ft. and we' re comfortable with
that calculation for the purpose of your deciding whether to issue a variance.
That is 26 sq.ft. shy of what we needed not to have to come to the Board.
I respectfully suggest thats diminimous. In addition to the special conditions,
we have a hardship, a total economic loss, waste, nothing can be done, the
building stands almost completed but not completed. We need a variance in order
• to complete it, get an .occupancy permit and sell it. Thirdly, can you grant the
relief without derogating from the Ordinance and for that I respectfully
suggest you must look at the area in question. The area, that lot, is one of
MINUTES - JANUARY 11 , 1989
page three
• 103 Highland Ave. - (Continued)
five house lots, if you consider it to be a house lot, it is in the Highland Ave. ,
Greenway, Cottage and Wilson Block. One of the house lots of the five
has 4400 some odd square feet, the average size of those five lots is just over
6000 square feet, across the street from this lot is a multi-family which sits
on 5200 sq.ft. and right down the street is a multi-family which is a two or
three family at the intersection of Cottage and Greenway, which is on 5400 sq.ft.
So, by issuing the variance you are not changing the character of that area.
It is in character for a single family to be built on a lot slightly less than
5000 sq.ft. It would be inappropropiate if all the other house lots had 20,000
or 40,000 sq.ft. then you would properly find it is in derogation. In addition
to the average size there have been various issues brought to my attention, I was
not here the last time, those issues with respect to drainage, what happened in
the past, I would be happy to go into those. Mr. Fleming: no, we don' t want
you to, we are not going to get into those issues tonight. The drainage you
will have to go into if we go beyond this point, the one correspondence that
I have seen, the change in topography is very relevent, regarding the alleged
change in elevation. In closing since I suggest we have made out a legally
recognized reason for the variance. You members know better than I that you
don' t want to see waste in the City. I would suggest that we are prepared to have
the following condition which might address the issue of a possible drainage
problem, that is, number 1 , we would construct a retaining wall around the lot
which would come up above the level of the ground maybe a couple of feet or so
which would permit us to build a swale to divert surface water out on to the
catch basin on Greenway. We would build a fence along the perimeter of that
• retaining wall which would serve both privacy and safety. Finally, we would
landcape as a buffer on the easterly side of the property. They intentionally
did not put a window on that side. Will try to live as good neighbors there.
I do have a communication which I would like to enter into the record from Mr.
Blenkhorn the Health Agont, which says that any time. the Katsapetsis' were asked
to do something, they did it. Mr. Fleming read the letter into the
record. (on file) Mr. Sheehan: there is also a letter dated November 20,
1986. Which he read and placed on record. I recognize there is a great deal
of opposition to this, I asked to weigh all the consideration, the hardship, that
is clear in this case, and to issue the variance. Thank you. Mr. Fleming:
this is a partial summary judgment? Yes What is count four of the complaint?
Mr. Sheehan: that is the count which is the standard cause of action, that seeks
to have the decision annulled and to have the variance granted. Mr. Fleming:
the effect of Judge Kelly' s partial summary on that count and that count alone
at this present time. There are no facts that are being contested and as a
reason of law we should re-hear this, is that right. Mr. Sheehan: exactly.
Mr. Fleming: does everyone on the Board understand? No. Mr. Fleming: Mr.
Katsapetsis through his prior attorney and his present attorney sued the Board
relative to its decision denying the requested variance. Each of the allegations
are broken down into what they call counts, one of the counts that Mr. Sheehan
added to the present complaint was one that we acted arbitrarily and capriciously
and did not adhere to the law. They felt by the finding that just because the
lot did not have 5000 sq. ft. we could not hear the case, I don' t think that
was the situation the night of the vote but it does appear from the decision that
we thought that eliminated them from consideration and let me say, that if you
• have two feet of land and you want to build the empire state building on it, you
may come to petition this Board. The court agrees with Mr. Sheehan and says it
has to come back here to redecide. What ever we decide, it will obviously end
up back there. The Court clearly says we should act on the matter before us.
Mr. Luzinski: I think my problem is, we did not act on that reason alone
MINUTES - JANUARY 11 , 1989
page four
• 103 Highland Ave. (continued)>
there were other things. Mr. Fleming: that is correct. There were five
findings of fact, substantial neighborhood opposition, including the Ward 3
Councillor Vincent Furfaro, there was evidence there was serious water runoff
problem, building permit #375 issued to a previous owner was not legally
transferred to the petitioners, there was substantial work done without a
building permit in disregard of a stop work order. Mr. Luzinski: I think my
decision was made on 2 and 3 more than number 5• Mr. Fleming: all these
findings may not be relevent, but 1 & 2 certainly are and we are going to vote
for or against, we must justify it or justify our denial of it based on whether
special conditions exist at that lot, whether substantial hardship would be
incurred by the petitioner if we did not grant this and whether or not granting
will derogate from present zoning. Just because someone sometime violated the
law does that mean forever nothing can be done to that land. I don' t think thats
grounds for denial. Mr. Bencal: findings that would substantiate a denial.
Mr. Fleming: we have to hear some evidence so we can decide one way or the
other. Mr. Nutting: what I don' t understand, you said you would limit the
discussion on both sides to just that fifth condition. Mr. Fleming: I did say
that at first but I think we will have to get into at least the runoff. We
will allow discussion on both sides. The last meeting, we heard about the
removal of some swimming pool and I don' t want to go through that again tonight.
Would anybody like speak in favor of this petition. Is there anybody who would
like speak in opposition.
Eleanor McElroy, 1B Greenway Rd. , strongly opposed. Its an eyesore
Marleen Lunt, 6 Greenway Rd. , should have approval of conservation and need a
• permit to change the elevation. Mr. Fleming: I believe that's true. Ms. Lunt:
the level of land has been raised. We have had water problem since then. Cellar
is flooded. I understand years back that had been a problem in the whole
neighborhood but we never had the problem before. Back yard is flooded. We had
a culvert in the back yard that was covered and has been uncovered. I assume
the raising of the land is the reason for our flooding. The back yard of this
house is falling into our property. I understand about the building of the wall
but we will still have problem with water. I understand the things that were
outlined with regards to the water problem but I am not sure it will solve the
situation. John Lunt, 6 Greenway Rd. , I agree with everything my wife said.
One thing, regarding the letters from the Health dept. , it wasn' t as simple as
it was made out to be. We had to take Mr. Katsapetsis to the Clerk of Courts
three times because he never completed the work till the third time. It's been
a fight all the way, we have had nothing but trouble with him. As far as hardship,
if the house is allowed to stay there will only be one hardship and that will be
my property. Mr. Fleming: thats not what hardship means, its a technical term.
It means a hardship to the land. Mr. Lunt: I realize that. Joan Tremblay,
33 Greenway Rd. , I agree with the Lunts. They were told to cease and desist but
the house was put up anyway. Linda Vaughn, 38 Greenway Rd. number one, I would
like to have the letters from the Councillors read. Mr. Fleming: the Ward
Councillor is right here, we are not going to have him testify and then read into
the record, the letters are in the record. Ms. Vaughn, I don' t know what the
big deal is for you to read them so everyone here can hear what the Councillors
have to say. They did take the time to write them. Mr. Fleming: I am sure the
Councillors can speak for themselves. Ms. Vaughn: another thing could you
• clarify the law regarding the Grandfathering of lots. Mr. Fleming: a lot that
existed prior to enactment of zoning that was 5000 sq-ft. or more and had 50 feet
of frontage, was exempt from the application of the ordinance, not only in Salem
but throughout the Commonwealth.
MINUTES - JANUARY 11 , 1989
page five
103 Highland Ave. (Continued)
• The great and general court of this commonwealth gave that to us as
legislation, not any local rule or interpretation. Ms. Vaughn: thats not
what I meant, does it have anything to do with former ownership? Attachment to
another piece of property? Mr. Fleming: there are other portions of it, if it
was in common ownership with adjoining property, that would prohibit it, are
you saying that is the situation here? Ms. Vaughn: no. Just point of information
this had come before the Board a few years ago when someone else tried to
build. on that property, legally they came before the Board and you people
denied it because the lot wasn' t big enough and other people have gone down
to City hall and tried to purchase that property and were told it was too small
and they tried to do it legally and these people have done it illegally. Mr.
Fleming: do you know when we voted, I don' t remember this coming before us.
Ms. Vaughn: you may not have been on the Board then. Mr. Fleming: fine, do
you know when it was? Ms. Vaughn: not exactly. Mr. Fleming: are you saying
it went to a building inspector and he found otherwise because an application
for a building permit can be denied in two ways, it can be denied directly by
the building inspector or it can come to us for variance and if they don' t get
it they can' t get the permit. Ms. Vaughn: I'm not positive. Stanley P. Poirier,
8 Cottage St. , I am around the corner, have lived here about 26 years and over
the past 26 years minus the last few, this property has never been built on.
A problem I have, if you will bear with me, is the fact that Mr. Katsapetsis
bought this property from Mr. Papalardo, now, as the Board is well aware of,
Mr. Papalardo did his thing, bought the property, had a good friend of his from
the state, who is now under indictment, comes down and surveys the property.
• Mr. Fleming: lets stick to the facts. Mr. Poirier: those are facts. Mr.
Fleming: those are not the facts before us. We have to decide if that property
needs a variance and I don't want to get in to that. Mr. Poirier: I apologize.
The point is, as the Board has pointed out, the building permit was not trans-
ferrable and he went ahead with it, the neighborhood had difficulty with what
was going on, we came down to the Board of Appeal, made our comments, went to
the building inspector, made our comments known and the building inspector, after
the fact, decided that we were correct, went back and in fact, told him to
cease and desist. The house, which is a modular, was sitting on the street
with a crane after he'd already developed the site, had a foundation, was told
not to put it on. He proceeded, that's defiance of the law. With that in mind,
in addition to that, the Lunt's have a thirty foot easement. Mr. Fleming: are
you saying there is a violation of an easement. Mr. Poirier: yes sir, there
was. The state has an easement. Mr. Fleming: that's not their easement, it
belongs to the commonwealth of massachusetts. Mr. & Mrs. Lunt: we own all the
way out to Highland Ave. Mr. Poirier: I am trying to explain the facts. Mr.
Katsapetsis comes along, he develops the site, we as neighbors told him he
would need retaining wall, informed him he was encroaching on their property, that
that is an easement that they own. Well he went so far as to throw his trees
in there, he backfilled, in fact, the clean out culvert was backfilled over. WE
got the state down there, they has to dig it out. The manhole. The state was
upset. He has been a flagrant breaker of the law. I think the Board has to
stand by what is written in the law. Mr. Fleming: the law is, how can you use
that property if you can' t use it for development of a single family house. Mr.
Poirier: that's his problem, he's the contractor and he's a business man and
he stepped into that deal with Mr. Papalardo, with his eyes wide open. He is in
• violation of the law. Mr. Lunt: I looked into the City Engineer and that is
a wetland and it requires the necessary permits and if he got his variance
wouldn' t he have to get these other permits from the engineer for back fill
and from the conservation. Mr. Fleming: absolutely. When you change the
MINUTES - JANUARY 11 , 1989
page six
103 Highland Ave. (Continued)
• elevation more than two feet you have to have a permit, we' re not talking about
that at all. All we have is use of land and the way you situate a building on
the land, we are not the Conservation Commission or the Building Inspector, etc.
our job is to look at an application for relief from the Zoning Ordinance and to
see if it merits consideration or not. Mr. Lunt: that house is literally on
top of us and I don' t think any amount of landscaping is going to help. .
Mark Blair, Councillor of Ward 7, point of order, referring to the two
Councillors who wrote letters, I am not one of them, they are at a meeting at
City Hall right now, the question is, if this ends up back in court, will their
statements be in what ever is supoenaed in court. Mr. Fleming: thats correct.
thats the record, they were entered, you heard my words for the record so they
are part and parcel of the record. Mary' Abraham, 30 Greenway Rd. , Al Bianci,
Castle Rd. , Gina Jowarski, 32 Greenway Rd. , concerned with water problems.
Robert Vaughn, 38 Greenway Rd. , it struck me funny to see that behind me they
are getting 115 thousand dollars for land and this property was bought for about
7000 dollars. Councillor Leonard O'Leary, Ward 4, I'm opposed through the
residents who live on the other side, they are opposed. Not only affects the
Ward three side as far as drainage also drains from the ward 4 side, and they
did not get a land alteration permit. As you know, you can' t build on every
piece of land in the City, there has to be some open space for conservation and
for drainage and this may be one of the pieces. Another thing, out of courtesy
to the councillors writing the letters, usually they are read before the Board.
Mr. Fleming: we are not going into the letter thing again. The letters are
part of the record, Councillor Harrington and Councillor McCabe are opposed.
• Mr. Nutting: I would like to hear from the Building Inspector a brief history
of his involvement. William Munroe, Inspector of Buildings, I don' t know how
in depth you want to get. Mr. Fleming: I would like you to discuss if you
would the building permit, the transfer, the cease and desist because that's the
involvement of the building department. The other issue is gone, the size of
the land, whether it's 5000 sq. ft. or not is gone, they now agree that the
lot is only 4974 sq. ft. at best. Mr. Nutting: Its awful hard to lose sight
of all the past discussion on the size of the lot, are they conceding tonight
that the property is undersized for their own benefit. Mr. Fleming; not they
don' t concede that, they concede that they don' t have 5000 sq. ft. to come under
the grandfather clause, they don' t concede anything else, they say there would
be a total economic loss if they are not allowed to build a single family
residential home on the lot. Mr. Nutting: but there wouldn' t have been if they
had adhered to the cease and desist order, meaning if they had not gone forward
the loss wouldn' t have been a total economic loss. Mr. Fleming: I agree with
you, it puts us in a very bad position, thats why I want Mr. Munroe to discuss
that portion. If there wasn' t a house there they would be here tonight asking
us for a variance to put a single family there. I think it's appropriate for
Mr. Munroe to discuss the transfer of the building permit and the cease and
desist order. Mr. Munroe: initially when Mr. Papalardo applied for a building
permit he indicated by a plot plan stamped by a registered professional engineer,
which we require, that the property had in excess of 5000 sq.ft. Based on that
the permit was issued to Mr. Papalardo. I had continuing complaints from the
neighbors to the point I had the Engineering Dept. of the City look into it. As
the Board says, its not an easy lot, its not a cube. I sent a letter to Mr.
Papalardo whom I assumed was the owner, I found Mr. Katsapetsis had purchased the
• property in the interim. Mr. Katsapetsis was in my office, I believe it was a
Wednesday prior to the house reaching the site, I told him and his builder that
there were problems with the site and not to bring it there, you have no permit
at this point, I will cancel Mr. Papalardo's permit. The following Monday
MINUTES - JANUARY 11 , 1989
page seven
• 103 Highland Ave. - (Continued)
the house was sitting on the site, we issued a stop work order. William
Katsapetsis was out of the country at the time but we did communicate with his
brother and delivered the stop work. It was because state of the construction
at the time, it was open to the elements in order not to have it get damage
and have the City liable for any damages, I told him to make the building tight
and that was the end of construction. He did adhere to that order. As far as
the drainage, the City Ordinance requires that if you change elevation of any
property, not necessarily in the wetlands, in excess of two feet you must get
a drainage alteration permit from the City Engineer. Apparently, to the best
of my knowledge, it hasn' t been done. As far as the drainage and the drain on
the property, I have a letter in my possession from the state saying they have
considerable interest in the property and that no Certificate of Occupancy be
issued until such time as the drainage situation is cleared up. That's where we
stand, its the position of the building department in agreement with counsel
that the property does not have 5000 sq.ft. , as far as hardship, the Board
addresses that, there has to be something unique with the land, there is a
criteria that the Board must use.
REBUTTAL: Attorney Sheehan, this has been a long running matter and I know the
Board wants to dispose of it one way or another, first, with respect to water,
the suggestions that I have made that you incorporate into the variance as
conditions would take care of many problems that arises from the filling of
that land. I 'm sure you all heard the evidence with respect to the water.
Apparently there's been a problem there for 30 years, I think its a little unfair
to say all the problem is all of a sudden created by them filling the land.
• I heard one person say there always been a water problem, I heard one person say
there was water in the basement presently and there was a previous problem before
fill. We are sensitive to the problem of water, we are willing to,:do whatever the
Board sees fit to impose with respect to conditions. It may not be as simple
as I've laid out, perhaps the condition should be that we get together with an
expert in the field to make sure that we accomodate whatever drainage problems
there could be, that's fine, they simply want to finish what they started. With
respect to getting into this with their eyes wide open and that everybody knew
about it, they didn' t know about it because they had a plan. They had a plan
and I've got a copy of the plan and the plan shows they have over 5,000 sq.ft.
and that plan is in accordance with a description of the deed and anybody looking
at that plan and looking at the deed would have reasonably expected that there
✓ was 5,104 sq.ft. This was prepared by Bradford Engineering Co. in Haverhill, MA
They didn' t pull the wool over anybodys eyes, we have conceded there is less than
5000 sq.ft. , if there were 5000 sq.ft. , that would be the sole issue before the
Courts, we don' t have it and thats why we' re here, but we thought we had 5000 sq.
ft. when we purchased it in accordance with that plan. We weren' t the only
ones who relied on that plan, the City of Salem relied on that plan, they issued
a building permit in reliance on it. When they decided to buy this property they
had in their hands, not only the plan, but a building permit. Now the question,
was the building permit transferred, was there some funny business going on, I
have plans right here that they submitted to the Building Dept. , City of Salem,
they were submitted, they got to the Fire Dept. , the Fire Dept. approved these
plans on Sept. 9, 1988*long before anybody was told by Mr. Munroe that there was
a problem. This was not a stick built house, its not as if after a cease and
• desist order was given that they went ahead, had carpenters in there and built
the house, this house had been purchased at a substantial price, it was made
someone outside of 103 Highland ave. , now when that house comes down route 1
*corrected date - September 9, 1985 (see*page eight)
MINUTES - JANUARY 11 , 1989
page eight
103 Highland Ave. (Continued)
• or wherever it came from to get to that site, for somebody to say, well you
put the house on there and therefore maybe its a problem of your own doing,
wait a minute, we already signed a contract for that house and that house was
different from the one for which the building permit was issued and we showed
the plans showing a different house, showing a modular house on Sept. 9th. Mr.
Fleming: * that was 85 not 88. Mr. Sheehan: did I give a wrong year, I'm sorry.
Sept. 9, 1985. My point is, long before anybody knew there was a problem
and in reliance on the same documents that the City of Salem relied on they
went ahead and bought a house and were going to put it on that foundation and
they did get a stop work order on September 23rd and it was attached to the
house, that is, the house was there when they got the cease and desist order,
and they did, as Mr. Munroe indicated, tighten one side because that was the
year of the hurricane and they were not going to let that thing waste away, that
would have been silly, but they have not done anything further except clean up.
One abutter said it was an eyesore, of course it's an eyesore, it has been since
Sept. 20, 1985, there's an way to remedy this, fix it, finish it, plant some
grass, its not realistic to say, I thought that would be open forever, all of
us wish when we but property and there are fields next to it that they would be
vacant forever, thats not realistic. The only way to insure that it to buy it
yourself. It was the Katsapetsis, in reliance upon a plan that showed they could
lawfully build, based on a decision of the Salem Building Dept. that they could
lawfully build, that they did what they did. Every was done before anyone knew
there was a problem. When you think about this I don' t want you to think they
were trying to pull something on someone, the evidence is directly contrary.
• Was somebody trying to pull something? I think the evidence speaks clearly to
that to, when somebody submits a plan thats wrong either there was a good faith
error or. Mr. Fleming; thats not for us to decide. Mr. Sheehan: as far as
the back yard falling into the Lunt property, I think the condition that I
proposed will take care of that and to the extent that we have to comply with
other Boards in this City, we have to comply with the Commonwealth because
Highland Ave. constitutes a state highway, all those things we have to do, but
we start here and for all of those reasons and I haven' t heard anything here
tonight that in my opinion should change the position that we've taken in this
case and I think respectfully that the variance should be granted and if there
are other problems we will have to take care of them one at a time but we have
to start somewhere. Thank you. Public hearing portion closed.
Mr. Bencal: Mr. Sheehan, under what authority or permits did they fill the
property? Mr. Sheehan: as far as I know, he had no particular permit to fill
that property, he was relying upon the building permit that had been issued.
Mr. Bencal: to fill the property, he should have known that you have to comply
with City requirements so, if he did not, he illegally filled the property. If
he had not illegally filled it, he may not have been able to build the house.
Mr. Sheehan: with respect to the fill problem, if there is a City Ordinance that
says you have to get a permit before you fill more than two feet, we did not
comply with that, no question about it. Whether they knew about it or not, I
don' t know. Mr. Bencal: it just seems to be individual items like this, taken
by themselves may be an isolated case but we've heard of other instances of
throwing cuttings, grass and brush on neighbors property on state property.
Mr. Sheehan: we disagree with that as a factual matter, the only tb'ing I have
• heard is they failed to comply with that fill situation. Mr. Bencal: failure
to remove fill from the neighbors property without having to be taken to court.
MINUTES - JANUARY 11 , 1989
page nine
103 Highland Ave. - (Continued)
• Mr. Sheehan: I think they did what they were supposed to do with respect to
that. Mr. Bencal: after much prodding. Rather than being a good neighbor
and doing it. Mr. Luzinski: I think if this came before us as a raw piece
of land and they were looking for a variance I am sure we would all be opposed
to it. If we did give them permission to build, I am sure would be lot of
requirements before we would allow it to be developed. I think we would have
denied it in the first place, because of the elevation, the water problems.
Mr. Nutting: feel the same. I've been aware of the problem over the years. To
me it seem a natural culvert type piece of property. Lower than Highland Ave.
Sometimes these lots that are not developed on, theres a reason. There's water
on the property, its considered an area for water to flow from the street or
from other peoples property, its a natural waterway so to speak, maybe the piece
of property was avoided years ago for that reason and to fill it now and build
a house on it, only hurts the situation up there. Also, we must remember the
intent of the zoning ordinance was the need for 15,000 sq.ft. , this well below.
I've agonized over this property over the years, its not an easy vote.
Theres been so much said from both sides perhaps have lost something in trans-
lation. For so many neighbors to come out so often, talk about a hardship and
to come in force the way they have. Must be a reason why they do it and we
should consider their comments. Mr. Fleming: for the record, Councillor
Furfaro did express his opposition to me, he is not here tonight but I'm sure
he has another meeting elsewhere or he would be here. I have no problem counting
the noses or counting votes and I can see that this petition is about to be
defeated again by virture of not gaining the statutory requirement of obtained
four affirmative votes in order for the petitioner to prevail. I will not join
• in that popular or political position however, I think that this is a classic
case of hardship. If this individual, or some individual, down the line can
do anything with this property, it is certainly a one or two bedroom single
family home. That's what that whole areais devoted to. If this were for a
Jiffy Lube or a MacDonalds or something like that, I would say it would certainly
derogate from the zoning. Even though I know the votes are not here tonight, I
think, whether you like the petitioner or not, your missing the point, this is
a classic hardship case, what else is this man, or anybody, to do on that land
if he can' t build a single family, R-1 type of home. Nothing else. I imagine
there will be a motion, I hope the motion includes the conditions that are
offered by Mr. Sheehan, I would hope the inclusion relative to expert relative
to draining to establish a draining plan be part of those conditions. But I
think that we'll see this again. Its a thing called inverse condemnation and it
thats our reason here tonight and if thats the reason this neighborhood wants
to keep this, I'm sure you' ll hear the words later on, inverse condemnation.
I think, the right thing to do, certainly not the popular thing tonight is to
vote to grant this and I am going to vote to grant this. Is there a motion.
Mr. Bencal made a motion to grant the petition subject to the following conditions:
1 . petitioner building a retaining wall around the entire lot above the ground
the height to be determined by the city engineer or the building dept. 2.
petitioner and/or future owner maintain a five foot fence around the perimeter
of said wall 3. Petitioner landscape and petitioner and/or future owner maintain
a landscape buffer along the northeast side of the property 4. Petitioner
and/or future owners comply with all conditions of the Salem Conservation
Commission 5. Petitioner comply with all requirements of the Salem Fire dept.
• relative to smoke and fire safety 6. Legal building permit be obtained
7• Certificate of Occupancy be obtained 8. Drainage plan submitted by peti-
tioners expert be approved by the City Engineer. Mr. Luzinski seconded.
Mr. Fleming voted in favor of the motion. Messrs. , Bencal, Luzinski, Nutting
and Labrecque voted opposed to the motion. Failing to obtained the required
four voted, the petition is denied
DENIED - 1 to 4
MINUTES - JANUARY 11 , 1989
page ten
• 382 Highland Ave. - John P. Keane
This petition has been continued from the December 7, 1988 hearing. Mr. Nutting:
we don't have the original five members here. Mr. Fleming: is Mr. DeCoulas
here? Is anybody here representing Mr. Keane? Mr. Nutting: Mr. Decoulas, from
what I understand from our secretary, was in contact with her today and discussed
the fact that Mr. Strout wasn' t going to be here tonight. I only say that to
clarify the situation and make a statement that Ms. Sumrall would like you to hear.
Ms. Sumrall: I just wanted you to be aware that Mr. DeCoulas called me this
morning about a half hour after Mr. Strout had called and I informed him that
Mr. Strout was not going to be present and Mr. Decoulas said there was not
reason for him to be here tonight. Mr. Fleming; that changes the situation,
you told Mr. Decoulas that the original five members would not be present. Ms.
Sumrall: yes, so he was aware of that. Mr. Fleming: we have no choice but to
continue. Mr. Bencal: I disagree with Mr. Decoulas's statement that there is
no reason for him to be here. I believe its encumbent upon him to request the
Board to continue, the Board can hear this with just four members, we have granted
the courtesy to him by votes of three to one to continue. Mr. Fleming: if you
look at the history of this particular petition, he's been the last two or
three times, we' ve had the same problem, this goes back four times, this is the
fourth time we haven' t had the same five. Ms. Sumrall: since the first meeting
in September 28th, came back October 26th, November 9th, and now tonight. Mr.
Fleming: Mr. Bencals opinion is that Mr. Decoulas has to be here, is there any
other comment? Mr. Nutting: I have asked Mr. DeCoulas to run with four people,
he said no he wouldn' t be interested in doing that. Mr. Bencal: that is not
• his right, we have granted him the opportunity of continuance but that right is
not given him, we can hear with four and we can hear a continuance with four, he
has to make that request. Mr. Fleming: this case is a little different, this
is a remanded case and he had five when he had the original decision and I think
he can argue for the five. Mr. Nutting: I move that the matter be continued
to the next meeting. Mr. Labredque seconded. Councillor O'Leary: can I say
something. Mr. Fleming: Councillor, in deference to position as a former
president of the City Council and as current Councillor of the ward affected,
I'll give you 30 seconds. Councillor O' Leary: this Board and its wisdom
asked Mr. Keane to meet with the neighbors and let them know what he proposed
to do with the land, he did not give the uses to the people or let the people
know what he's doing. For Mr. Decoulas to call and not even give a letter and
say he wanted to continue it because five Board Members aren' t here and for Mr.
Keane not to show up, I think they give up their rights to tell this Board that
they want it continued. Mr. Fleming: there is also a City employee gave
information to them that Mr. Strout would not be here, there is an arguement to
be made for reliance Councillor, if we don' t give them the opportunity to be
heard and he argues reliance they're going to say, come back for a hearing, one
way or another these people are coming back so let's get it over with once and
for all. Mr. O'Leary: You can vote with four members, right? If one of your
terms is up and you don' t get reappointed, you're only going to have four
members, so why not get it over with and vote it. Mr. Fleming: there's been
a motion to continue. Is there a second? Mr. Nutting: Mr. Labreque seconded
but he's not a voting member. Mr. Luzinski: for the purpose of the vote I will
second. The Board voted 3 in favor, 1 opposed (Mr. Bencal) to continuing this
until the next scheduled meeting January 25, 1989
• CONTINUED UNTIL JANUARY 25, 1989
MINUTES - JANUARY 11 , 1989
page eleven
24 Barnes Circle - Stephen & Peggy Masella
is This application for variances to allow property to be divided into two lots
in this R-1 district has been continued from the December 7, 1988 hearing.
Mr. Fleming: We had requested Attorney Sullivan provide us with further infor-
mation. It appears Mr. Sullivan, through the Jacquith Office has submitted
some plans and elevations relative to the variances. I believe Mr. Strout
wanted to see something pertaining to what they wanted to build on the lot.
Attorney John Ryan III from Mr. Sullivan's office, 6 Lynde St. , Salem. Mr.
Nutting: just informational, isn' t this similar to the previous case, Mr.
Strout was on this petition also, and only four members are going to hear this.
Mr. Fleming: thats correct. Mr. Ryan: we are aware of the situation and we
prepared to go ahead. Attorney: the petitioners seek to divide the exist lot
into two lots, one lot having 1985 sq.ft. which has an existing home on it, the
other lot, which fronts on Clark St. would be 5,000 sq. ft. The plans submitted
to you would indicate the elevations and the placement of the proposed house on
the lot. The proposed second lot, I will call parcel 2, the 5000 sq. ft. parcel
was at one time a separate lot. An overall plan of the area shows most of the
lots in the area are less than 15,000 sq. ft. and the existing lot is one of the
larger lots in the area. The particular hardship affecting the property is the
topography which is such that the back piece, parcel 2, is at the back of the lot
and there is a rather rapid drop to that 5000 sq. ft. , from the Barnes Circle to
the Clark street parcel. From the Barnes Circle side you cannot see the Clark
St. property. From the Clark St. side you can see the roof top of the house on
Barnes Circle. The area is a hilly area, highest point, one of the higher points
in that area. The back parcel is not useful to the main property. Rather than
• be repetitive I would be glad to answer question. Mr. Fleming: you brought
the plans we requested. Mr. Nutting: point of clarification, if this proposal
is continued tonight would the member who is absent be able to vote on it. Mr.
Fleming: yes but Mr. Ryan, has agreed to go with four members. If it was con=
tinued the original member would be able to vote but virtue of the transcript.
Most of what has been said was said at the last meeting. Mr. Ryan: no' dero-
gation, will fit with existing neighborhood. Mr. Fleming: in fairness, is their
anybody here in favor of the petition, anybody opposed? Hearing none, I declare
the public portion of the hearing closed. Any questions of the Board relative
to the petition? Mr. Luzinski: is that the only information Mr. Strout was
looking for? Yes. Mr. Nutting: what was he looking from when he requested that?
Just the footprint? Mr. Fleming: footprint and elevation, both. He wanted to
see where on the new lot the building was going to go, they are saying thats
where it will go, if we approve it that's where it will go, if they want to
move it they have to come back. If there's approval it will be as per plans
submitted. Mr. Nutting: will you clarify the size of the other lot, Mr. Chair-
man. Mr. Bencal: it will be if granted 12,985 sq. ft. Mr. Nutting: was it
ever two lots. Mr. Fleming: I would have to guess but it doesn' t make any
difference, by law, because they are in common ownership, they have merged
so whether they ever were and it looks from what we've seen in the plot plan,
or locus map that at one time it possibly was, it is one lot now. Mr. Nutting:
did we have opposition to this at all? No. Mr. Bencal made a motion to grant
the variances requested, subject to the following conditions 1 . petitioners
meet all the requirements of the Fire Dept. relative to smoke and fire safety
2. All construction be done as per existing city and state building codes.and
As per the plans submitted 3. Any and all blasting must be done per all city
Is
codes relative to this area and zone 4. all dimensions as per the plans sub-
mitted dated 1:2;16/88 5. a certificate of occupancy be obtained. Mr. Luzinski
seconded. UNANIMOUSLY GRANTED 4-0
MINUTES - JANUARY 11 , 1989
page twelve
• 401 Highland Ave. - Joyce Nelson & Michael Correale
The petitioners, owners of the property, are requesting a Variance to allow a
two family house at the locus by allowing the installation of a kitchen on the
second floor, creating separate living quarters. The property is located in an
R-1 zone. Mr. Nutting read the application. .There .were no communications
relative to this application. Mr. Fleming: before we begin, how was this
advertised? Mr. Nutting: just as it says. Mr. Fleming check the ad, it clearly
stated a second living area. Mr. Correale explained his request. Would like
to raise the roof and put separate living quarters there. There is room there
now, but would like to add to it. Mr. Nutting: who's going to .live there?
Mr. Correale: myself and my wife, my mother down stairs. Mr. Fleming: changing
the height? No, just dormers. The Board went over the plans. We have space
for three cars. Mr. Bencal: is there a business presently in this building?
Yes. I any of this building presently used as a dwelling? Yes, my mother lives
there. Mr. Bencal: is it electrolyses, granted by the Board a few years ago?
Yes. Mr. Bencal: will you show me on the plans where the parking is. Mr.
Coreale then showed all Board members the existing parking. Mr. Bencal: the
1983 decision calls for five parking for the use that is now existing. Mrs.
Nelson: If he gets the variance, I am going to remove the shed so he can pull
in the back. Mr. Fleming: let me caution you, you have not asked for relief
from the parking requirment. Mr. Bencal: do you provide the five space, legal
spaces. Mrs. Nelson: what do you mean by legal. Mr. Bencal: size, 9 x 22.
Yes, I think so. Mr. Nutting: are they out front. Yes Mr. Nutting: is there
enough room on the side for a driveway? Mrs. Nelson: yes there is room, could
remove shed. Mr. Fleming: you are required by the previous decision, if you are
• going to continue the business, to have five spaces, off street. Now, whether
you are in compliance or not is not the issue tonight. You need five for the
business, the ordinance requires, three spaces for the residences for a total
of eight. Mr. Luzinski: previous decision called for five spaces period, so
what we are talking about is adding 1} space. Mr. Fleming: your right. What
we are talking about is adding two more spaces for a total of seven, can you fit
seven? No problem. Mr. Luzinski: 200 foot long lot, they should. Mr. Fleming:
do you have anything else to say? Mrs. Nelson: not at this time. Mr. Fleming;
one crack at the apple. Mrs. Nelson: still don' t understand, when I applied for
my electrolysis, there was one operator, only allowed two, they said I had to
have at least three parking spots, cannot have more than two people in parking
spot. Mr. Fleming: I am looking at the official document that was decided by
this Board November of 1983 that requires you to have five on site parking spaced.
Thats the business and the one family home, now if you want to go to a two family
house you've got to add the requirement, because you haven' t asked for relief
from parking. In order, from this point on, to maintain the business and the
two family you have to have seven spaces and they must meet the requirements of
the ordinance. Speaking in favor: Mr. & Mrs. Pierni, own property at 403
Highland Ave. Mrs. Pierni: I am the immediate abutter and I find Mrs. Nelsons
business runs very smoothly. Speaking in opposition: Catherine Scouloginus,
399 Highland Ave. , we have a very good relationship so far, I did not oppose the
electrolysis, I also represent my mother and Mr.. & .Mr's. Emanuel Amanti..who-.-e. .
directly across the street, they are 89 and 93 respectively, if it is proper:
Mr. fleming: it is proper,, let the record reflect that Mrs. Scouloginus has
spoke with both her mother and the Amantis. Mr's. Scouloginus: I have some
• questions regarding what is being built. It is my understanding, as I know the
home, it has an unfinished attic, I don't know if that constitutes a second
story. Michaelis married, with his wife, a child and a child on the way. That
tells me there is a family of four plus Joyce which is five and two dogs.
MINUTES - JANUARY 11 , 1989
page thirteen
401 Highland Ave. - Joyce Nelson & Michael Correale
• I have seven objections to this two story dwelling. 1 . Zoning, when we built
our family home 38 years ago, in 1951 , we specifically chose an area zoned as
residential in order to insure privacy. 2. Proximatey of our homes, our homes
are 17 ft. apart, from foundation to foundation, to raise a second story on that
house would make the situation very bad for us, the reasons are obvious, it would
block the light. 3. Noise and activity that would be caused not only by the
construction but by the increased family. size 4. Also, it is unclear to us
how a second story built over a four room cottage can accomodate a family of four,
possibly more. 5. Should Mrs. Nelson ever leave we have the conditional concern
of the type of tenant that would move in. 6. Once permission is given to make
a two story, two family home in the area, a dangerous precedent is set. 7,: :'our
home .will remain in the family, therefore, our concern is for the future as well
as the present. My summary is, we want to preserve the present residential
zoning laws, single family. I don' t want to be in a tenement district. Daniel
Genis, Trustee of my mothers property which abuts this property, we are trying to
be good neighbors, we said okay to the electrolysis business. No objection to
three of four cars being in the driveway, but to turn around and put possibly
seven cars, this makes a parking lot as far as we're concerned. This is our
private home and we'd like to keep it that way, this makes, between the elect-
rolysis and renting out an apartment, a commercial building. In Rebuttal:
Michael Correale; in four years there has never been more than two cars in the
driveway, now they are saying there's going to be seven. There has never ever
been more than two plus her .car. Mrs. Pierney: this area has really been
developed, forget residential, would like to reiterate my vote in favor. I have
• never seen more than one car coming or going from the business. Mr. Genus:
no objection to the business, just the increase in the residential. Mrs. Genus-
-I just want it on the record where this lady lives who is speaking in favor. Mrs.
Pierni: I live in Swampscott. Mr. Genus: this is a small house. We have no
way of knowing if the business will increase. Mr. Fleming; they have a Special
Permit for the business, that exists, no matter what we do tonight, tomorrow
there is going to be an allowed commercial use in that building. Hearing closed.
Mr. Nutting: didn' t I hear something about a hardship on one of the family, the
gentleman who's married with a baby and his wife is expecting. Mr. Fleming: we
all agree there is one baby and one on the way, what we are voting for is to
allow a family of four there. Mr. Nutting: that family of four could move in
there right now and live with the mother. Mr. Fleming: they are all related,
absolutely, they can move in on the first floor, second floor, they just couldn't
have a second kitchen there. Mr. Nutting: what's the cost of the change over,
roughly. Mrs. Nelson: around 60,000 to put the dormers in, the kitchen, the
stairs and now if I have to go and enlarge the back yard for more parking, that
will cost. Mr. Nutting: what's your time schedule? Mrs. Nelson: would not start
till spring. Mr. Nutting: in the past we have requested that these parking
spaces be defined. Mr. Fleming: they are not asking for parking, they are saying
they can meet the requirements, they are not asking for relief from parking so
they don' t have to' show us. Any complaints to the building inspector, they can
be shut down. Mr. Nutting: how long do both parties that are presenly family
members planning on living there? Mrs. Nelson: I plan on staying there till I
die: Mr. Nutting: there is opposition and I'm wondering if that opposition could
be watered down with more discussion. I'm wondering if anything could be done that
• could help the people who feel they would be aggrieved. Obviously this :could
wind up being challenged. Mr. Fleming: if you listen to the objections, they
go to the core of the petition, I don' t think they are negotiable things that
can be changed. Theres a footprint they are going to use that footprint.
MINUTES - JANUARY 11 , 1989
page fourteen
• 401 Highland Ave. .- Continued
Mr. Nutting: I sincerely believe there is no profit motivation here. Mr. Fleming:
I believe that, 'from what I hear, I don' t think it's profit orientated at all.
Mr. Nutting: spoke with'.the City Planner this week to see what could be done
relative to legitimate in-law apartments. Mr. Fleming: I hate to see those ads
out there, in-law apartment, an apartment is an apartment. Mr. Nutting: how
active is the business? Mrs. Nelson: it is a one operator business, never more
than one car at a time, by appointment. Mr. Luzinski: in the original petition
was it to be owner occupied? Yes. So there is a safeguard that noone else
could buy it and run a business there. Mr. Fleming: the original petition that
was granted in 1983 for a business would expire should Mrs. Nelson no longer
operate that business. Mrs. Scoulagenis: that doesn' t bother me, the business
doesn' t bother me, the cars don' t bother me, the issue that should be addressed
here, the two family home. Mr: Fleming:. the law would allow these people'to
live in .the current premises as is, they are all related, under the zoning
there's no way of keeping them out of there, the question is do they live there
decently or are they packed in like sardines.
Mr. Bencal made a motion to grant the requested variances subject to the following
conditions - 1 . petitioner with all requirements of the Salem Fire Dept. , relative
to smoke and fire safety. 2. Petitioners obtain a Certificate of Occupancy for
the second dwelling unit. 3. All construction be done as per city and state
building code and per the plans submitted. 4. All exterior finishes are to be
in harmony with the existing finishes. 5.petitioner maintain seven (7) legal
parking spaces on site. 6. All conditions of the Special Permit dated
December 7, 1983 be continued in full force and effect. 7. The Variance for
• the two family shall be valid only as long as the premises are owner occupied.
Mr. Luzinski seconded. The Board voted unanimously in favor of the motion.
UNANIMOUSLY GRANTED
100-102 Boston St. - Donald R. Burnham
Mr. Nutting read a letter from Attorney George Atkins requesting the Board
allow the withdrawal of Mr. Burnhams application for Variances from setbacks,
density, use and parking to allow property to be divided into two lots and
to construct a four unit building on one lot in this R-2/B-2 district.
Mr. Nutting made a motion to grant the request for withdrawal. Mr. Luzinski
seconded.
WITHDRAWN BY UNANIMOUS VOTE
2 Cheval Ave. - Richard Bresnahan
Petitioner, owner of the property, is requesting variances to allow an existing
single family dwelling in this R-1 district. Mr. Nutting read the application
and an addendum (on file) . Mr. Bresnahan represented himself. He explained
the plans. The bay window which replaced an old window is in violation. Did not
realize that would be in violation. Submitted copy of bill of sale from the
City of the portion of land that the house encroaches on. In 1987 received
Special Permit to allow the existing patio and construct a porch on the side.
Showed the window on the plans, need zero setback. Mr. Fleming: if we give zero
setback it would cover both the window and the little triangular section which
• was purchased from the City. Mr. Bresnahan: I just want to clear the title.
No one appeared in favor or in opposition. Mr. Bencal made a motion to grant the
Variances requested incorporating all conditions on previous decision, and that
single family remain as per the plans submitted. MR. Nutting seconded.
UNANIMOUSLY GRANTED
MINUTES - JANUARY 11 , 1989
page fifteen
191-211 Washington St./29 New Derby St.- Nondas Lagonakis
• Petitioner is requesting a modification and an extension of Variances which were
granted June 15, 1988 for the property located at the above referenced property
which is located in a B-5 district. Mr. Nutting read the application. Attorney
William Quinn, 222 Essex St. , represented the petition. Mr. Quinn gave a brief
history of the project. The previous decision granted variances for setbacks, lot
coverage and parking. The variances were granted for a three story commercial
building, there would be some parking on site for the first floor tenant, Walgreens.
Market conditions at the present time are not favorable and the owner is unable
to obtain financing for the entire project at this time. Walgreen's has signed
a 20 year lease for the first floor provided they can open by September of 1989.
They can get financing for a single story now, they are still committed to the
overall project and have every intention of completing it as soon as the market
conditions allow financing. All we are asking is to modify the previous decision
to allow the development to be completed in two phases, with the ground floor to
be constructed and occupied, the first phase, the second and third floors to be
the second phase. Also, we are requesting that the original variances, with the
modifications, be extended until September 13, 1989• No one appeared in favor or
in opposition. Hearing closed. Mr. Fleming: if this is granted tonight and you
cannot build the second and third floors, you would have to come back to us, is that
right. Mr. Quinn: no, by obtaining the building permit for the first floor, we have
activated the variance. The reason we have come for the modification is that we
were told no one wants a single story building here. If there was a condition that
the second and third floors be completed within a certain time, say two years, that
would hold us to having to return. The plans were discussed in detail. Mr. Bencal:
• I was not here for the original hearing, was any thought given to raising the building
so you could put parking on first level. Mr. Quinn: it's an excellent conception,
we tried initially to make that work, problem is the water table which is about
4 feet below grade, this is a filled area, it is prohibitive to put underground
parking, the problem with street level parking is the elevation, we are abutting
an historical district and an urban renewal district, there were concerns about how
tall it would be. Designwise you wouldn' t want to look at parking garage in this
location on a busy street in downtown Salem. The most we could get above it would
be a two story building and it wouldn' t accomodate Walgreens at all, they need a
first floor. Without them there is no project. Mr. Fleming: we will be watching
this development closely, we don' t want to see this done piecemeal into a three
development, no parking situation. Mr. Bencal made a motion to grant the relief
requested to allow development to be constructed in two phases, with the ground
floor to be constructed and occupied as the first phase,a nd the second and third
floors to be constructed, completed and occupied as the second phase, and that the
original variances, as modified, be extended until September 13, 1989 on condition
that all six conditions of the previous decision continue and be made part of this
decision. Mr. Luzinski seconded.
UNANIMOUSLY GRANTED
Mr. Fleming: I was asked by Mr. Philip Moran if he could address the Board on
another question, I don't know what the question is, relative to a petition he
obtained for Mr. Picarello, PicScrew on Canal St. Mr. Moran: I am here to clarify
or modify a variance which was granted November 19, 1986, in April 1986 the building
known as PicScrew burned down. Got Variance granted to replace existing building.
No use Variance was granted, at that time there was discussion regarding use and
• it was decided a use variance was not needed. He occupies part of the building
and leases part with about 25% vacant. This problem arose when someone tried to
lease this portion and were told they could not because it was nonconforming.
MINUTES - JANUARY 11 , 1989
page Sixteen
• Came to the Building Inspectors office and talked to Mr. Martineau and he informed
me he could no make the decision, Mr. Munroe would have to, it is an R-3 district,
and as far as he's concerned the variance did not include use. Mr. Munroe.'said
he could not agree to the use that I should file for variance. Could not get
on a meeting till maybe February, Connolly Brothers said if they don' t have a
lease by this Friday their not going to lease the property. I asked Mr. Munroe
to reconsider. But he could not, said it was up to the Board. In the interest
of judicial economy I'm here tonight;. hopefully, that I don' t need to file
petition and I don' t have to come back. I think it was the intent to allow that
building to be used for this type use. I think the intent was there. Mr. Bencal:
I think the intent was to allow continuance of use. Mr. Fleming: you are between
a rock and a hard place but I don' t think we can act, tonight. I think the intent
was for the uses that were there at the time of the fire, if you are going to
change any use you have to come before us, there is an advertisement requirement,
if we changed the use it wouldn't be worth the paper it's written on. what you
are really asking for is an Administrative Ruling and we can't grant that tonight.
You have to file, it has to be advertised and abutters notified. Mr. Nutting:
what's the soonest date he could be put on. February would be the soonest.
Mr. Fleming: you will have to go through".. the process and the next meeting is
February 15th. Mr. Moran: thank you for your time.
Meeting adjourned at 10:45 p.m. , next scheduled meeting will be held January 25,
1989 at 7:00 P.M.
Respectfully submitted,
Brenda M. Sumrall
Clerk of the Board
•
f1�it of �9zttlem, 'Mttssadjusetts
Poura of �kpveal
MINUTES OF THE BOARD OF APPEAL MEETING - FEBRUARY 22, 1989
A meeting of the Salem Board of Appeal was held Wednesday, February 22, 1989 at
7:00 P.M. , second floor of One Salem Green. Notice of the hearing was sent to
abutters and other-interested persons by mail . Notices of the hearing were duly
advertised in the Salem Evening News on February 8 and 15, 1989.
Present at the meeting were Board Members Bencal , Fleming, Luzinski , Associate
Members Dore and Labreque. Also present were Assistant Building Inspector Steve
Santry and Brenda Sumrall , Recording Secretary.
The meeting was called to order at 7:00 p.m. by the Chairman, James Fleming. Mr.
Dore and Mr. Labreque were appointed voted members.
Mr. Fleming addressed the assemblage, he informed them that R164 Boston Street
would be heard on March 15, 1989, this petition had been carried over from the
January 25, 1989 meeting. and was originally scheduled to be heard tonight, due to
unforeseen -circumstances the date had to be changed to March 15, 1989. This was
advertised in the News on February 18, 1989.
14 Lee St. - Fred & Donna Flett
• Petitioners are requesting a Variance from side setback requirements to allow
construction of a deck in this R-1 district. Mr. Dore, Acting Secretary, read
the application and a letter from the Fire Department which stated the property
has current compliance with MGL Chapter 148, Section 26E relative to installation
of smoke detectors and the Fire Dept. has no objections to the Variance being
granted. Mr. & Mrs. Flett represented themselves, the explained to the Board that
they wanted to remove the existing deck which is unsafe and in dire need of re-
placing. The existing deck is 6 feet wide, the new deck will be 4 feet wide and
will continue around the house. There is plenty of room in the rear, the only
place it will encroach is on the side. Speaking in favor: Marie Piecrce, 16 Lee
Street, this will improve the appearance of the property. Philip Pierce, 16 Lee
Street, this will alleviate a bad situation, the deck is unsafe and this will work
well . No one appeared in opposition. Hearing closed. Mr. Bencal : the present
deck is falling apart, it is unsafe? yes. Mr. Luzinski : this is a reasonable
request. Mr. Bencal made a motion to grant the Variance requested to allow
construction of a deck on condition all construction be in accordance with all
State and local Building Codes and all dimensions be as per the plans submitted.
Mr. Luzinski seconded.
UNANIMOUSLY GRANTED
95 Ocean Ave. - Thomas ;Manning & Ernest 'Glynn
Petitioners are requesting Variances to allow the property to be converted from a
two family to a three family in this B-4 district. Mr. Dore read the application
and a letter from the Fire Dept. which stated the property was in compliance with
• laws relative to smoke detectors and the Fire Dept. has no objection to the
variances being granted. Scott Grover, Esq. , represented the petitioners. My
client is seeking a Special Permit to expand to 'a three family. The property is
MINUTES - FEBRUARY 22, 1989
page two
95 Ocean Avenue - Continued
• located in a B-4 zone, residential use is not allowed, this makes the existing
use nonconforming, we therefore need a Special Permit. The area is largely commercial ,
and what residential homes that are there are multi-family homes, mostly 3 or 4
family. This will not be detrimental to the neighborhood. We have provided
parking in accordance with the requirements for a three family, we are, however,
asking for a variance from the requirements for aisle width, driveway width and
turning radius. This is necessary due to the extremely narrow lot and the egress
which encroaches into the driveway, otherwise it would meet the requirements. Mr.
Fleming: do you provide parking there now? Mr. Grover: not presently. The
granting of the variance would allow petitioner to rehabilitate the entire building
and we contend it will not derogate from the intent of the ordinance. Mr. Glynn:
I am one of the owners, I presently live at 140 Lothrop St. Beverly, but will move
to Ocean Avenue. No one appeared in favor or in opposition. Hearing closed.
Mr. Bencal : how long have you owned this property? since July 1988. Mr. Bencal :
you are not providing parking there now, why? Mr. Glynn: this petition was con-
template all along. Mr. Fleming: thinks he can do it with Special Permit, I 'm
not sure. Mr. Bencal : can you put three legal spaces without a the variance, put
them in different location. Mr. Dore: what are the sizes of the abutters homes?
Mr. Grover went over the locus map again, pojnted out the commercial and multi-
family uses in the area. Mr. Dore: the two parking spaces on the right, if the
other two spaces were full could you get out of the spaces or do you have to back
out? Mr. Grover: I think you can get out, they have enough room. Mr. Bencal : I
don't think so, I don 't think you could turn around. Mr. Luzinski : they can show
these spaces, lay them out any way, but experience shows they don 't use them.
• These stairs on the driveway side, anyway to rearrange them to the opposite side?
Mr. Grover: It would be very difficult because of the grade. Mr. Fleming: can
the stairs be moved to the rear? Mr. Grover: again, be very difficult and it
would interfere more with the turning radius. Mr. Bencal made a motion to grant
the Variance and Special Permit requested subject to the following conditions,
five parking spaces be maintained on site, three family be allowed only as long
as it is owner occupied, a certificate of occupancy for the third unit be obtained,
allow construction be done as per city and state codes. Mr. Dore seconded.
Under discussion: Mr. Bencal , I have a problem with hardship, I don 't see any
hardship, they bought the property in July of 1988 and in November of 88 they
applied for relief, they withdrew it at that time, but they bought it as two family
and right away they want to increase units. I am opposed. Mr. Dore: I have some
problem with the parking plan but I don 't think it is any worse that what is existing
there. Mr. Luzinski : I don 't think they can get the parking they show. I don 't
see any hardship. Mr. Fleming: I think we have an opportunity to help these people.
They haven't asked for relief from the parking and if they can provide it, they
won 't be able to do it. I will vote in favor. Hearing no further discussion, Madam
Clerk would you call the roll . Mr. Bencal- opposed, Mr. Fleming-in favor; Mr.
Luzinski-opposed; Mr. Dore-in favor; Mr. Labreque-in favor. The motion,having failed
to gain the four affirmative votes necessary for granting, in defeated. The
Variance is therefore denied.
DENIED - 3 to 2
MINUTES - FEBRUARY 22, 1989
page three
20 Highland Avenue - Paul M. Claveau
`• Petitioner is requesting Variances from density and parking to allow a two family
dwelling to be converted to a three family dwelling in this R-3 zone. Mr. Dore
read the application and a letter from the Fire Marshal stating the property has
current compliance with regulations relative to smoke detectors, therefore the
Fire Prevention Bureau has no objections to the variances being granted. Mr.
Claveau represented himself. Explained he would like to convert to a three family,
this is a multi-family district. Need variance from parking because I don 't have
adequate parking on site. I do have parking for six to eight cars on property I
own at 24 Highland Avenue which is one lot removed from this property. I also
need variance from density, this lot only has 7,500 square feet which is much less
than is required. There are many multi -family homes in the area, this will not
cause any hardship on the area. Will not need to make any structural changes on
the building, will be utilizing the existing space on the third floor, there are
four rooms there. 24 Highland Ave. will be used for parking, there is presently a
garage there. No one appeared in favor or in opposition, hearing closed. Mr.
Luzinski : is there sidewalks on that side of the street? yes. Mr. Bencal : How
long have you owned this property? 6 years, my family owned it prior to that.
Mr. Bencal : what 's to stop you from selling off number 24 and leaving this without
parking. Mr. Claveau: the value of my property would decline if I couldn 't provide
parking. Mr. Fleming: we should condition this upon number 24 remaining in
common ownership with number 20, should also condition that 6 spaces be maintained
at number 24 for the express use of number 20. If he does sell either of the lots
the property would revert to a two family again. All we would be saying is that
both number 20 and number 24 remain in common ownership. Are there two egresses
• there? Mr. Claveau: yes, and there is a full dormer there already. Mr. Bencal
made a motion to grant the variances requested from density and parking to allow
two family dwelling at 20 Highland Avenue subject to the following conditions:
the use of a three family shall be valid only as long as the property remains
owner occupied; Certificate of Occupancy be obtained for the third unit; all
construction be done as per all existing city and state building codes; petitioner
meet all requirements of the Salem Fire Dept. relative to smoke and fire safety;
no exterior changes shall be made to the building with regards to this petition.;.-
petitioner must maintain six (6) legal parking spaces at the lot shown as 24
Highland Avenue on the plans. Should 24 Highland Ave. cease to be in common
ownership with the lot 20 Highland Ave. the variance for a three (3) family shall
cease and the property at #20 Highland Ave. shall revert back to a two (2) family
dwelling. Mr. Luzinski seconded. Under discussion Mr. Fleming: If you should
remove the garage at 24 Highland Ave. that there are permits and procedures that
have to be followed. Mr. Claveau: yes sir, I am aware. There being no further
discussion, the Board voted unanimously in favor of the motion, variances are
UNANIMOUSLY GRANTED
MINUTES - FEBRUARY 22, 1989
page four
37 Walter St. - John Suldenski
• The petitioner is requesting a special permit to construct an attached addition on
to the existing dwelling which would result in a two family house in a two family
district. Mr. Dore read the application and a letter from the Fire Marshal which
stated the property is in compliance and the Fire Dept. had no objections, on
condition plans are presented to the Fire Dept. , that construction conform to
all applicable building and fire codes and an inspection be made by the Fire Dept.
upon completion of the work. Mr. Dore then read a letter from Mrs. Helen Jiadosz,
44 Walter St. inwhich she stated she was opposed, she stated she had signed the
petition in favor but was having second thoughts. (on filed) . Attorney George
Vallis represented the petitioner. My client bought this property about two years
ago, this is his residence. He submitted a petition signed by thirty five (35)
persons in the immediate area, in favor of this request. (on file) There may have
been a misconception regarding the use of this property, it is assessed as a two
family and has been a two family for many years. Boris owned it and used it as
single family. It was a two family and we would have no problem with it being
conditioned upon owner occupancy. The total number of units will be two. It
meets all the criteria for a special permit. The existing structure is nonconforming,
the use is an allowed use, it is an R-2 zone. Will not adversely affect the
neighborhood. This is a grandfathered lot, it meets the density, will not encroach
on the setbacks, has sufficient parking, it is an attached building, very attractive,
has mansard roof, victorian style, will be in harmony with the existing building,
have no intention of make it a three family. Thaddeus Siemaski , of the firm of
Jacquith & Siemaski of Beverly, Architects : this is designed to look like a
' carriage house, the portion that will be the attachment is made up of a roof and
deck. The effect will be a carriage house on this lot. Mr. Suldenski , 37 Walter
St. , owner of the property, when we bought this two years ago, we bought it as a
two family we have been living there as a single family. The existing building
is not functional as a two family, to make this functional it would lose integrity
of the building. My desire is to make this look like an 1870 carriage house, it
will meet all the setback requirements. Mr. Vallis read a letter from the City
Solicitor dated July 21 , 1988 relative to interpretation of nonconforming structures.
Except for this interpretation, I respectfully submit we would not have to be here.
We are not increasing the height, and will meet the setbacks and the parking.
Speaking in favor: Mrs. Boyle, 38 Walter St. , I have lived here for many years,
this is a very old house and I am sure this carriage house will blend in with the
neighborhood. Mr. John Andrews, 35 Walter St. , I live at 329 Essex St. , I am in
favor for a lot of reasons. I hate to see a house cut up, would like to see it
done the right way. I think this is a good idea, would be no overcrowding there,
he has plenty of room. Virginia Suldenski , 37 Walter St. , in favor.
Speaking in opposition: Bill Curran, 41 Walter St. , all the houses in this area
are close to the sidewalk and have back yards. I call this a house, not an addition.
It will change the whole decorum of the neighborhood. I have a single family home,
I could make it a two family, we all could come and build second houses on our lots.
This will set a precedent. I have nothing against the Suldenskis, but I feel they
purchased this property with the intention of doing this. I have seen the plans,
this would result in there being two single family houses on one lot, not a two
family structure, this is not an addition, this is a separate house. With due
respect to Mr. Andrews, he does not live there, he is an absentee landlord.
` Nancy Curran, 41 Walter St. , agree with everything my husband said, I am also
• concerned with privacy. This would be a real detriment to the neighborhood. Byron
Lock , 34 Upham St. , I am a direct abutter in the rear, this property has changed
hands about three times. This has been a single family and the cost of putting it
MINUTES - FEBRUARY 22, 1989
page five
37 Walter St. - Continued
• back to a two family dwelling would be prohibitive. What he is proposing would
be two houses and two familys, not a two family home. We have legitimate concerns.
Charles Hogan, 32 Upham St. , I am a direct abutter, I am concerned with the density
and flooding. We are on the bottom of the pit back there. Mr. Fleming: did you
discuss drainage plans with them? Yes, but I am still opposed, even if they could
straighten out the drainage problems, this is still two buildings. Mrs. Pearl
Dickson, 43 Walter St. , I have the only existing carriage house in the area. It is
a separate building. This would be a separate building joined together. Concerned
about drainage, there is a natural spring, it is always wet, even if this could be
settled I would still be opposed. Joyce King, Upham st. , opposed, water problems,
drainage, this would set a precedent. Peter Casale, 39 Walter St. , lived there
about 43 years, enjoy the privacy of my back yard and I am concerned with losing
this privacy. I am very much opposed, he says he got 35 names but they must be
scattered throughout the City. Sandy Casale, 39 Walter St. , concerned with losing
privacy, I don 't think he has any intentions of staying there, he looking at this
as a developer, not concerned with the neighborhood, it is an additional building,
not an addition. Mr. Fleming: we could require this to be owner occupied. Mrs.
Casale: this is an old concern, why are we going through this again. Mr. Fleming:
he has a right to make this a two family, anyone has the right to ask for a variance.
Councillor Bates: This is an invasion on the abutters. This is a separate house.
These people have only been there for a few years, two I believe, there are water
problems there. Arnold Nather, 43 Walter St. , opposed for same reasons mentioned.
One neighbor who signed the petition thought it was a. modest`addition. He read
from the Zoning Ordinance, relative to nonconforming stuctures, page 85 and section
�• VIII F relative to the granting of Special Permits. Robert Chute, 34 Walter St. ,
There is a natural spring that runs about 30 feet, concerned with parking and
drainage. Not an addition is a separate building. Alberta Hall , 40 Walter St.
The is not needed. Fred King, 30 Upham St. , I think it will wind up a three family
some day, area will become overcrowded. Ashley Hall , 30 Walter St. , same reasons,
also concerned it will become overcrowded. Timothy Lunn, 38 Upham St. , I signed the
petition in favor, I am in favor, I did not speak up before because I did not
realize there would be so much opposition. Mr. Fleming read letter dated 2/18/89
from William and Kathleen Claffey, 40 Walter St. , in opposition.
REBUTTAL: George Vallis, Esq. , we should give Mr. Suldenski credit, if he was just
a speculator, would he have talked to the neighbors, no, he would not. The plans
spoke for themselves. I take issue with what the opponents were saying, this will
enhance the property, some people think he will have two homes there for two families
rather than just two families. This will just be a total of two families. We will
be submitting drainage plans to the City Engineer, he must approve them and that
should lay that issue to rest. He is 30 feet from the rear yard property line,
will not encroach on setbacks, not looking for a variance, do not need to show
a hardship. This will not adversely affect the neighborhood. This is nonconforming,
if we were building new, we could do it without special permit, lot is grandfathered.
Hearing closed. Mr. Luzinski : they admitted they bought this as a two family, they
could still use the existing house for two family, I think this unit will make a
three family possible, the potential is there, I would be opposed at this time.
Mr. Bencal : we are looking at two buildings on one lot, connected on one corner,
I cannot support this. Mr. Fleming: we have done it before, connected by a breeze
way. This is when sitting on this Board becomes a hard job. We must make a
decision tonight and it is a hard decision. Mr. Suldenski does good work, I have
• found David Jacquith 's office to be of the highest caliber, but the neighbors have
legimate concerns. I will vote against this but it was a good plan, it is too bad
the neighborhood meeting process was not done a little earlier. Mr. Bencal made
a motion to grant the Special Permit as requested. The Board unanimously voted
against the motion
UNANIMOUSLY DENIED
MINUTES - FEBRUARY 22, 1989
page six
29 Washington Square North - BertramrH&mi for Aged Men
The petitioners, Trustees of the Bertram Home for Aged Men are requesting a Special
Permit to extend a nonconforming structure and a nonconforming use allowing the
construction of an addition and the increase in the number of units from 22 to 25.
Property is located in an R-2 district and has been a rest home at this location
since 1927. Mr. Dore read the application and a letter from the Salem Fire Marshal
stating the property has no current compliance relative to,smoke detectors. (on file)
Mr. Dore then read the following correspondence all of which are on file:
Linda Billows, President of the Visiting Nurse Association,and Jean Marie Rochna,
Director bf the Council on Aging in favor. The rest are correspondence in opposition
to the increase in density. Councillors Harrington and Harvey; Joan Nester,
Salem Common Association, attached to her letter is-a policy statement approved
unanimously by the Association; Judith Doering, 33 Washington Sq. No. ; Denice
Ducaney, 14 Williams St. ; Jonathan Evans, 14 Williams St. ; Allen Smith, M.D. , 14
Williams St. ; Milton Da Silva, 5 Mall St. ; Stephen Verza Burke, 12 Williams St. ;
Peter Farrell , 5 Mall St. ; Nancy Farrell , 5 Mall St. ; Agnes Gagnon, 25 Washington
Sq. No. ; George Gagnon, 25 Washington Sq. No. ; Etta Cokorogiannis, 25 Washington
Sq. No. , three petitions, one signed by 10, second signed by 18 and the third
signed by 8; and the last letter from Mary Field Goubeau, 23 Winter St.
Attorney John Serafini Sr. , represented the petitioners. This lot has about
22,000 s.f. The concerns of the neighbors will be considered. Displayed pictures
to the Board. He presented a list of abutters':(on file) In large measure, the
people who are present here are familiar with this place but not how it was
established. It began with the bequest of John Bertram. The present Board of
Trustees are familiar with that obligation. Benn in business and non-profit for
many years. Long before many of us were :present. The home and the surroundings
• fell into disrepair, some of the rooms have not been kept up, there was a question
whether or not the trustees were doing their job for the public. About September
of 1987 the trustees did some sole searching. Approximately one year ago-'closed
for repairs.and-renovations. How-to do this and come up with the funds' necessary
and meet the code requirements. Would require the expenditure of a large amount
of money. Talked to people who deal with the elderly to try to see if they could
be helped; is,it worthwhile, do people benefit, yes. It is needed, it is a
continuing need. It 's our obligation to see this building utilized to its fullest
extent. Let these people live in this building with dignity. Needs modernization,
a common eating area, private bathrooms, etc. ; ability to utilize the grounds. The
average age is 80 years and up; people who can take care of themselves but should
not be alone. Financing critical , need certain number of units. Bedroom units
will be increased from 22 to 25. The Architect, Staley McDermit, is well known in
the City, he looked at this with thought to historic preservation. This will
conform with the existing neighborhood. Mr. Serafini display a model of the
building and the surrounding buildings done to scale. Have had a series of meetings
with the neighbors and have tried to reach a compromise, have changed the addition
from a three story to a two story. Thetrees will be retained. The parking is
incorporated into the green space. This is necessary to provide 'these elderly
people with there own bathrooms, let them live with dignity. We are providing
9 parking spaces fpr 25 elderly, thats betterrthan brie third. We would be willing
to provide more if necessary but we don't think it is. Mr. Fleming: how many
residents were there last September? Mr. Serafini : at their peak they served
about 27. We all know that this area is one of the prettiest in Salem, it is
also one of the most congested. There are various use, our use is an accepted use.
. They have been in business since 1927. How beneficial is this going to be? The
need is critical , I don't think anyone is against helping the elderly; The
planned rental will be at market rate, one third low and moderate income, will be
subsidized through the housing authoring, maybe 707 Certificate.
MINUTES - FEBRUARY 22, 1989
page seven
29 Washington Square North - Continued
• Staley McDermit, Architect„175 Essex St. , residence is 30 Dearborn St. , specialize
in older buildings, that is all I do, the existing building is from aboutn 1818-1819.
He displayed plans and model to the assemblage. The building now consists-of 22
bedrooms. We have basically tried to restore this building. Parking was a concern,
We were concerned with loss of greenspace. The plans have been kept faithful to
the surrounding neighborhbod. This will restore the building to first class condition.
We have cut the addition from three stories to two stories. There will be an
elevator. Mr. William Carney, Elderly Living, Inc. , parking oo problem when this
was at' its peak, were no residents having cars, this is a different time, he submitted
communication relative to the Principls of the Project Plan, the Operating Plan and
Parking Need Projection (on file) I hope this will break ground, will make this
more residential than rest home. Will have van for the residents and will make
half dozen trips per day, we are willing to expand on that. This is a different
time, the days of shared bedrooms is over. It is my experient that use of cars by
elderly residents would be minimal': Elayne Hart, Salem Housing Authority Executive
Director, the need for this type of residence is critical , would be very slight
impact on the neighborhood, will be a mix of low and moderate income persons, ' the
percentage- depends-on what subsidies can be obtained. There is more than ever a
need for a facility of this nature:' William Luster, Acting City Planner, submitted
a letter from Mayor Salvo endorsing this project (on file) Mr. Luster concurred with
the Mayor' s support, Mr. Fleming read the letter into the record. Norma James,
75 Orchard.St. , retired worker from Welfare, currently on the Board of the Brookhouse
Home for Aged Women, none of whbm-drive. Bethani Gilbourne, Soci:al Worker from
Salem Hospital , impressed with the Bertram Home Trustees, spoke in favor and spoke
of her experiences with the elderly and the need for quality homes of this nature.
Russell Slam, 9 Forrester St. , have been active in the Common Association, I am very
f much in favor. The neighbors are dismayed regarding the loss of the greenspace, they
will have to come to the historical common. Daniel Pierce, Historic Commission,
submitted a letter from Annie C. Harris, the Chairman of the Commission, requesting
any approval be conditioned on approval of the Salem Historical Commission. Sarah
Jane, citizen residi:ng-at 11 Heritage Drive, in favor. Councillor Leonard O'Leary,
31 Barcelona Ave. , in favor, I feel for the residents regarding the open space, but
I feel this is good for Salem. Jean Ahearne and Janet McIvaney, no addresses,
given, both in favor. Speaking in opposition. Milton DaSilva, 5 Mall St. , the
issue is not the elderly, it is the extending bf,the building on the property.
Would like to see the property remain as it is. I heard it will cost about $1 ,200
a month to live there. Where are the visitors going to park. Jonathan Evans,
14 Williams St. , I don 't oppose the use for elderly, the issue is parking and it is
a big issue. Dr. Allan Smith, 14 William St. , George Gagnon, 25 Washington Sq. ,
Nancy Farrell , 5 Mall St. all concerned with parking. Mr. Bencal asked Ms. Farrell
if she had parking in her yard, she said she did. Joan Nestor, 2 Forrester St. ,
Ted Richard, I live on Pleasant St. now but used to live at 8 Williams St. .
Stephen Burke, 12 Williams St. , this is already the largest building in the area
and they want to enlarge it. Agnes Gagnon, 25 Washington Square, Joan Nester, 2
Forrester St. . The concerns of the neighbors and abutters centered on parking,
congestion and the aesthetics of the addition and the size of the addition. In
Rebuttal . Mr. Serafini : I understand the nature of the concerns of the neighbors,
most seems to be focused around the parking, we don 't think this will add to the
traffic. Will be no parking on the street. This is a nonconforming use, was at
one time 27 people. The aesthetics- of the building, the site work, the retention
• of the open space show a great deal of concern my clients have shown for the
MINUTES - FEBRUARY 22, 1989
page eight
29 Wash'i6gton Sq. North - continued
• \ neighborhood. We don't feet the request for an addition is unreasonable, will not
/J result in an unreasonable increase, in volume or area of the building or use, -will
make it possible for the residents of the home to have their own facilities that
would provide 'them with some dignity and privacy. Hearing closed. Mr. Fleming:
how many meetings did you have with the neighbor's? Mr. Serafini : 4 Mr. Fleming:
how many employees? Mr. Serafini : at the peak there would only be four. Mr.
Dore: would this be dedicated to Salem residents? Mr. Serafini : they would of
course have priority, but we cannot dedicate it to only Salem because of financial
constraints and there are certain State requirements. Mr. Luzinski : I think this
is an admirable vision Mr. Bertram had, he wanted them to have this area for the
elderly, I am in favor. Mr. Bencal : I applaud the trustees and their goal . With
the proper conditions the project deserves our support. Mr. Fleming: Bertram was
certainly a man of vision, the intent is to serve the Citizens of Salem and I
would hope they would be given preference. This type of elderly housing is the
wave of the future. We are in difficult times when so many facilities closing.
I thank the trustees for their efforts and I will vote in favor. Mr. Bencal made
a motion to grant the Special Permit requested to allow construction of an addition
and to allow an increase in the number of units from 22 to 25 on condition, all
construction be done as per all existing city and state building codes and as per
the plans submitted; petition comply with all requirements of the Salem Fire Dept.
relative to smoke and fire safety, including all requirements of the Massachusetts
Sprinkler law for facilities of this type;a certificate of occupancy for all units
be obtained; and the petitioner meet all requirements, and receive a Certificate
of Appropriateness from the Salem Historical Commission. Included in these
requirements shall be project design, site placement and massing. Mr. Luzinski
seconded.
•� UNANIMOUSLY GRANTED
Old/New Business
Attorney John Serafini Sr. addressed the Board relative to 24 Saunders St. He
respectfully requested the Board grant a six month extension on a Variance that
was granted February 22; '1988 and filed with the City Clerk on March 2, 1988
allowing construction of sixty (60) residential units. He explained that the
demolition permit had been obtained as part of the building permit process and
they are improving the site. We feel we have performed under the variance granted
but the extension will enable us to continue and will insure compliance with the
requirements of MGL 40A. The Board considered the request and felt it was reasonable.
Mr. Bencal made a motion to grant the six month extension requested. Mr. Bencal
seconded. UNANIMOUSLY GRANTED EXTENSION for 24 Saunders St.
The meeting adjourned at 10:58 p.m. , next scheduled hearing to be held March
15, 1989 at 7:00 p.m. , second floor, One Salem Green.
Respecfully submitted
Brenda M. Sumrall
Clerk of the Board
(6itV of �ttlem, fflttssurhusette
00 Poura of 'tAppeal
MINUTES OF THE BOARD OF APPEAL MEETING - APRIL 19, 1989
A meeting of the Salem Board of Appeal was held Wednesday, April 19, 1989 at
7:00 p.m. on the second floor of One Salem Green. Notice of the hearing having
been duly published in the Salem Evening News on April 5, 12, 1989• Abutters
and other interested persons were notified by mail.
Present at the meeting were Members Bencal, Fleming, Luzinski, Nutting, Strout
and Associate Member Dore, who was present for the last petition. Also present
was James Santo, Assistant Building Inspector and Brenda Sumrall,Recording Secretary.
The meeting was called to order at 7:05 by the Chairman James Fleming.
Prior to the regularagenda; Mr': Flenning paid: tribute; to; Edward Luzinski whoe.
has served with distinction on the Board •of, Appeal, for the. past ten:iyears,:;- Mr.
Luzinski',. for health reasons, .is not seeking`.reappointment, to .the;,Board:: cMr.
Fleming presented him with a token gift from the Board in appreciation.
50 Winter Island Road - City of Salem
Petitioner is requesting a Special Permit to allow the overnight parking of not
more than 60 recreational vehicles at Winter Island at any one time for a period
• of two (2) years. Mr. Nutting read the application, there was no communication
relative to this petition. Mr. Gary Moore, Manager of Winter Island, represented
the City. He explained to the Board that Recreational Vehicles have visited here
for the past seven (7) years without incident or negative impact on the area.
The financial impact for the park is significant, providing about 23% of the
operational budget thus allowing the no fee for Salem residents policy to remain
in effect. It is beneficial to Salem in terms of the tourist dollars spent.
There are no other accomodations for campers in the greater Salem area. We are
asking for renewal of the existing terms of the Special Permit, nothing will
change. Pointed out that more and more Salem residents are taking advantage of
this facility. Some of the elderly that winter in Florida are bringing their
rigs back with them. Mr. Nutting: is there any limit to the number of nights
someone could stay there? Mr. Moore: we do have a policy with two facets to it,
there is a two week limit to hook-up, meaning electricity and water at the hangar
site itself, there are only eight sites that have that kind of hook-up and for
the, entire season there is a maximum for any particular unit of six weeks, it
can be done two weeks at a time, a day at a time, whatever, we keep all the tickets
for the registration so we can tell if someone keeps coming back, they know in
advance what the maximum time is. This has worked out well. We don' t want any
kind of permanence because then you have a different kind of stay, there would
be more household type things, clothes lines, bicycles, debris etc. , thats not
what we want. Mr. Fleming: are those park regulations have they been voted by
the Parking Board. Mr. Moore: those are policies we put in place about five
years ago, they have not be voted on formerly by the Park and Recreation Commission
but they are aware of it. Councillor O' Leary spoke in favor citing the good job
• that Mr. Moore has done and the benefits the City receives. No one appeared in
opposition. Hearing closed. Mr. Strout made a motion to grant the petition
requested with the same conditions as the previous Special Permit with only the
change in the dates which will be the 1989 and 1990 season. Mr. Luzinski
seconded.
UNANIMOUSLY GRANTED
Minutes - April 19, 1989
' page two
• 186 Lafayette St. - Vasile Stevens
The petitioner is requesting a variance to allow third apartment in this
R-3 district. Mr. Nutting read the application which stated variance to allow
existing third floor rooms to third apartment. Mr. Nutting also read a com-
munication from the Salem Fire Marshal which stated the property is in compliance
for a single family dwelling. The Fire Dept. would have no objections to the
granting if certain conditions were met. (on file) Mr. Steven represented himself.
Would like third floor for my children. Would be mostly for my family, it is
already existing. Mr. Bencal: are you presently using it as a three family?
No. Mr. Bencal: what about the letters from Building Dept. Never been used
for three. Mr. Fleming: have you started an exterior staircase without a
permit? No, it was built when I bought it 5 years ago. Mr. Fleming: did you
recieve a letter from Mr. Martineau the Assistant Building Inspector relative
to that? Mr. Steven: there was something, two or three years ago. Mr. Fleming:
we' re talking October 19, 1988, three months ago.: Mr. Stevens: he said I was
only single family there, I came to the building department and showed them
letter from building department that says I am two family. (speed letter from
Richard McIntosh on file) Mr. Nutting: did you put the dormers on the roof?
Yes. Mr: Strout: is there a kitchen, or bathroom upstairs? Mr. Stevens: only
a bathroom, was there when I bought it. Used to be college students before, not
me I didn' t have. Mr. Fleming: have you been doing work on the third floor?
Have you seen the letter from Lori Bertone which states you have been working
continuously on the third floor. (on file) Mr. Stevens stated he hadl not-been,,,,
doing'-.any work. Mr. Nutting: does that exterior stairway go to the third or
does it stop at the second? Second. The Board members looked over the plans
• that Mr. Stevens submitted. Mr. Fleming: asked Mr. Santo, Asst Bldg. Inspector
about the code for outside stairways. Mr. Santo: they are allowed as long as
there is one set of stairs enclosed. Mr. Strout: will he be able to bring an
enclosed stairway all the was to the third floor? Mr. Santo: he doesn' t show
that. Mr. Strout: so it's up to him? No one appeared in favor or in opposition,
hearing closed. Mr. Luzinski: if it were granted it would be up to the building
department to make sure of the enclosed stairs. Mr. Santo: he will have to come
up to code. Mr. Strout: do you have a main hall, does it have stairs going up
to the attic now? yes. Mr•. Fleming: I'm no fan of exterior staircases and
not you will have two on this property, one to the second floor and one to the
third. It is not what we need on an entrance corridor. Mr. Nutting: I think
the gentleman bought it as a single family and got the ex building inspector to
go up to the two family and now he wants to go to a three. Mr. Strout: I have
serious problem with this. I think a person that wants to make an increase like
this and brings a set of drawings like this, we have no idea if they'reto scale,
if this is in fact the way they are going to work out. I think its his obligation
to us and to the City to bring us a set of drawings that are accurate, something
we can agree upon, something we can get an idea of how they are going look.
We don' t know if he can conform to the interior stairs, he might have to come
back to us for another dormer, we don' t know what this is going to look like. 1
Mr. Fleming: there is a complete failure relative to hardship. Mr. Bencal made
a motion to grant the petition as requested. Mr. Luzinski seconded.
The Board of Appeal unanimously voted in opposition to the motion, petition is
therefore denied.
UNANIMOUSLY DENIED
•
MINUTES - APRIL 19, 1989
page three
111 Highland Aver. . - Steven & Lisa Mullins (petitioner) Edward Zarohian (owner)
• Petitioners are appealing the decision of the Inspector of Buildings regarding
the use of the property for a used car lot. Property is located in an R-1 district.
Mr. Nutting read the application. Mary Harrington, Esq. representing the petitioner
requested the petition be continued until thennext available meeting, her clients
and the owner of the property were trying to work things out. Mr. Strout made a
motion to continue until June 14 , 1989 on condition petitioner notify all abutters
by mail of the new date. Mr. Bencal seconded. UNAN
UNANIMOUSLY CONTINUED UNTIL JUNE 14, 1989
1.2 Grover St. - Russell Thatcher
Petitioner, owner of the property is requesting a Special Permit to extend non-
conforming structure by allowing the construction of a deck in this R-2 district.
Me. Nutting read the application and a letter from the Fire Department stating the
property had no compliance. He also read a letter from Mary O'Keeke, 8 Grove St. ,
in favor. Mr. Thatcher represented himself. I have discussed my plans with the
neighbors, they had no problems. This will just square the house off. Deck will
not encroach on setbacks':. Mr. Fleming: do you have smoke detectors? Mr. Thatbher:
yes. Mr. Fleming: call the fire department and let them know, they will come and
inspect them and give you a certificate of compliance. No one appeared in favor or
in opposition. Hearing closed. Mr. Fleming: this is a case where he wouldnnot
have to be here except for the interpretation of the Building Inspector. There are
proposed amendements that will take care of cases like this. Mr. Bencal made a
motion to grant the petition on condition all construction be in accordance with
• the provisions of Massachusetts State Building Code; the petitioner comply with all
requirement of the Salem Fire Department relative to fire safety; all construction
be as per the plans and dimensions submitted and a legal building permit be
obtained from the inspector of buildings. Mr. Nutting seconded.
UNANIMOUSLY GRANTED
37 DearbornSSt. - John & Sally Kelsey
The petitioners are requesting a special permit to allow the attachment of a two
car garage with storage above, a mud room and extension of a kitchen in this R-1 zone.
Mr. Nutting read the application and a letter from the fire dept. stating the
property was in compliance. Attorney John Serafini Sr. , representing theopetitioners.
You are all aware of this plan, this was before you in January and it was withdrawn.
There were some issues raised at that time. We did receive correspondence from the
abutter that we were unable to reach at the last meeting. Mr. Serafini submitted
letters in favor from neighbors and abutters. Mr. Fleming read the correspondence;.,
there were six (6) letters in favor,in addition to the letter from Mr. Bahal, the
immediate abutters. Other;rletters:' were; Craig Barrow Bell, 41 Dearborn St. ;
Dorothy & John Arthur, 56 Orchard St. ; Albert Pitcoff, 38 Dearborn St. ; Staley
McDermet, 30 Dearborn St. ;Mary Miller, 13 Everett Rd. ; and Leslie Woods, 7
Moulton Ave. (on file) Mr. Kelsey displayed three different options regarding
the placement of the proprosed garage. The Board studied the plans carefully. Mr.
Serafini: what he wanted to demonstrate to the Board was that the original plan
was the best. All the abutters are in agreement. We contend this is the best
placement. We have all looked at the alternatives, simply not viable. Speaking
in favor: Staley McDermet, 30 Dearborn St. , I agree the original plan is the
• best. No one appeared in opposition. Hearing closed. Mr. Bencal: there was some
concern about the space above the garage would you have any problem with a condition
MINUTES - APRIL 19, 1989
page four
37 Dearborn St. - continued
• that it be for storage only. No problem. Mr. Nutting: the kitchen is going to
be enlarged? yes, an additional 12' x 13' dining area. Mr. Nutting: I agree
withtthe petitioner, I concur, it looks much better being places on the side as
shown on the original plan, it is a beautiful area, this does not seem to be an
intrusion. Mr. Strout: this is the place to put it, I think putting it in the
back is not good design. Mr. Nutting: it is interesting the neighbors are in
favor. Mr. Fleming: I will not support this, the petitioner is an architect, he
was asked to come back with a different proposal, after all, this is a large lot,
what does he come back with, overlays, pencil sketches, this is an affront.
Petitioners is concerned about taking some of his back yard away, well, he wants
to increase his dining area, wants a garage, but does not want to give up any
yard space. I willnnot vote for this tonight. Mr. Nutting: did not mention the
type of people the Kelseys are, they are professional people and they want to raise
their family here in Salem and I would like to help them stay in the City. Mr.
Bencal made a motion to grant the petition requested on condition all construction
be done as per the plans submitted and as per existing City and State Building
codes, petitioners meet all requirements of the fire department; a Certificate of
Occupancy for the additions be obtained, new exterior finishes be in'.1harmony with
the existing finishes; the space above the garage shall not be used as an in-law
apartment or dwelling unit. Mr. Nutting seconded. The Board voted 4-1 (Mr. Fleming
opposed)din favor of the motion.
GRANTED 4-1
322-330 Canal St./72 Loring Ave. - The Jefferson Trust
• Petitioners are requesting a Variance from Section VII B of the Zoning Ordinance
to allow division of the land into four (4) lots. Property is located in a B-2
District. Mr. Strout will not be sitting on this petition as he has a conflict of
interest. Peter Dore has been appointed a voting member. Mr. Nutting read the
application.a-,Mr:. Flem ng ,cdo the petitioners have a Purchase and Sale Agreement
for this property. Mr. Serafini: yes, there is a current Purchase and Sale!aand
we will be glad to get a copy if necessary. Mr. Serafini Sr. , represented the
petitioners. The area is zoned B-2 which allows for Service Stations. The
buildings we constructedwere not service stations in the strict sense of the word.
We did have to comply with the requirements for a service station though, >weddonno
provide gas or repairs such as a service station would. There are no gasoline
tanks. The buildings are mainly�rused for retail for automotive products, some
special services such as lubrication and minor maintenance. To comply with the
requirements of a Service Station has caused a hardship. The Ordinance requires
120 feet of lot width plus 20 feet for pays and pumps. My clients wish to divide
this^into four parcels all of which would meet the 100 feet requirement of a B-2
but not the 120 feet for service stations. What we are asking for then is a
Variance fron the automobile station section of the Zoning Ordinance. The hardship
ts,,:by holding the petitioners to that section, which does not fit the use they
propose;; it makes a hardship on tiny clients. The granting of this variance would
not derogate from the ordinance. The area is zone B-2. Used mostly for business.
This use is not specifically addressed in the ordinance. You are all familiar with
the people who are doing this, they are good neighbors. We did go to the Conservation
Commission. I know the neighbors have some concerns, my clients have cooperated:.
•
MINUTES - APRIL 19, 1990
page five
322-330 Canal St. - Contined
• there have b'een:meetinjphopefully we will alleviate some of their concerns. We will
repair fence, the car wash is not owned by us, the uses are allowed, the lots are
large lots';. will not be used as a gas station. Mr. Nutting: what about a buffer
zone? Mr. Serafini, plenty of buffer area. He displayed the plans to the Board
and the assemblage. Speaking in favor: John & Frank Bertini. In opposition.
Richard Diarte, Agent for Rr&:iLlRealty`.Trust, 7 Kimball St. I think the difference
is between three and four lots, this is a troublesome intersection. I think there
are eight bays in the building that is there now, I think it meets the definition
of service. Mr. Fleming: B-2 only requires 100 feet. Mr. Duarte::; automotive-
requires 120 feet, he read the section from the Ordinance relative to Service stations.
Mr. Diarte: true this will not provide gas, but will provided other things that
fall under this definition. Other issues are traffic;,density, safety. Mr. Fleming:
I think, except for the frontage they don' t even have to be here. Mr. Diarte; no,
but they could change and do something different. Mr. Fleming: if they did any
thing that wasn' t allowed, they would have to come back to us. Each case is decided
individually. Mr. Diarti: it is still a very dense area and traffic ;is a problem.
Alice Pelletier; no address given, interested in having the trees and the fence,
would like some brush, something that would brook the noise. Roger Pelletier, 7
Kimball Rd. , Would like buffer zone between this and my place. Mrs Bedard, 14
Adams St. , would like fence all the way down, there is a large drop there. Mr.
Santo, the Assistant Building Inspector, the code calls for a fence there anyway.
Mr. Diarti: would like to make sure'`.these plans are referenced in the decision.
Mr. Fleming: absolutely. Mr. Nutting: I know there was a water pressure problem
there, has it improved? yes. Mr. Bedard, 14, Adams st. , would like a stockage fence.
• Mr. Nutting: I am concerned with dead car storage, would like a condition that no
storage of vehicles of out back. No problem. Hearing closed. Mr. Bencal made
a motion to grant the petition for Va'r'iance to allow division of land into four
lots each-having 100 feet frontage on condition; parcel II, as shown on the plan
submitted, shall not be used as a gasoline service station; petitioners and/or
assigns to repair and maintain the fencing in the rear of the property abutting
land as shown on the plans, as N/F Bedard; Adams st. ; N/F Crean and N/F Ferrier. The
fence shall be stockade type along the Bedard proeprty and chain link along the
others. The obligation to repair and maintain as it pertains to the abutting Crean
and Ferrier property shall be subject to the petitioners' ability to obtain
cooperation and assistance from those landowners. The petitioners shall only be
obligated to use their reasonable best efforts to obtain such cooperation; all
lot width dimensions to the new lots are to be per the plans submitted; appropriate
shrubbery and trees are to be placed along the rear ,of the property at 7 Kimball Rd. ,
and as reasonably possible along the rear of the property as shown on plans as N/F
Bedard; Adams St. ; N/F Crean and N/F Ferrier. Shrubbery and trees shall be as in
the reasonable judgment of the petitioners is adequate. The area between the
petitioners land and the land of Crean and Ferrier shall be governed by the
limitation set forth in condition two as to cooperation from them; petitioners
and/or assigns shall install and maintain a bituminous curb at the end of Adams
Street; all conditions of the previous decision of the Board of Appeal dated 1/23/85
shall be made part of this decision; proper*-.numbering shall be obtained from the
Assessors; no storage of vehicles shall be allowed on any of the four lots shown
on the submitted plans. Mr. Luz'inski seconded. 5-0 in favor
UNANIMOUSLY GRANTED.
•
MINUTES - APRIL 1.9, 1989
page six
• Old/New Business
Under new business, Mr.: Femino,-,:the Assistant City Solicitor, addressed the
Board.relati:ve a proposed amendment to the Ordinance. Would like to see some
sort of amendment. The way the inspector is interpreting the ordinance now, everyone
who wants to do anything is having to come to the Board. Would like the Board
to give some input, some recommendations. Mr. Luzinski: it is impossible for
any of the old house lots to comply. Mr. Femino: we are all concerned with the
number of complaints regarding this situation. Mr. Fleming: the way it stands
now, if someone wants a deck,':a pool, a shed, even a bay window, unless they have
15,000 sq. ft. , they have to come to the Board. Never had this problem before.
Mr. Femino: perhaps you gentlemen could discuss is at some meeting and give us
your recommendations.
The meeting adjourned at 10:15 p.m. , next scheduled meeting will be April 20, 1989
on the second floor, One Salem Green.
Respectfully submitted
Brenda M. Sumrall
Clerk of the Board
•
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