STF Memo_BOA_01-20-2021
KIMBERLEY DRISCOLL
MAYOR
CITY OF SALEM, MASSACHUSETTS
BOARD OF APPEALS
98 WASHINGTON STREET SALEM, MASSACHUSETTS 01970
TEL: 978-619-5685
STAFF MEMORANDUM
TO: Board of Appeals Members
FROM: Lev McCarthy, Staff Planner
DATE: January 13, 2020
RE: Meeting Agenda for January 20, 2021
Board Members,
Please find the following in your digital packets:
• Staff Memorandum
• Agenda
• Petitions:
1. 140 Highland Avenue
2. 11 Hersey Street
3. 10 Barton Street
4. 5 Harbor Street
5. 2 Howard Street
6. 157 Boston Street
• Meeting Minutes: December 16, 2020
Meeting materials are available via SharePoint here:
https://cityofsalem1.sharepoint.com/:f:/s/ZoningBoardAppeals/EoJh6d8fijtEnU41_l7QBkUB6V
Tyyndg-zwELBuqpv2cOQ?e=h6YqF1
1. 140 Highland Avenue
A continuation of a public hearing for all persons interested in the petition of JOHNNY
POLANCO for a special permit per Section 8.2.4 Entrance Corridor Overlay District: Fences
to allow a six-foot tall decorative concrete wall at the single-family house at 140
HIGHLAND AVENUE (Map 14, Lot 264) (R1 and ECOD Zoning Districts).
Updates:
In the December 20 meeting the petitioner, Johnny Polanco, introduced his attorney, Vincent
Phelin. Mr. Phelin stated that he was only recently informed of the case and was unable to
adequately review the materials. Mr. Phelin requested to continue the application. Ms. McClain
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noted that there were safety concerns regarding this application, and suggested that the matter
not be continued beyond January. Mr. Phelin agreed. Chair Duffy suggested that Mr. Phelin make
contact with the neighbor regarding the safety issue.
At the time of this writing (1/12/21), the Planning Department has received no additional materials
or communication from the applicant or representative.
From December 16 meeting:
Materials:
• Additional photos
In the November 16 meeting the petitioner, Johnny Polanco, presented a plot plan and
photographs, and discussed his application. Mr. Polanco explained his intention was to construct
a four-foot wall based on a building permit he had received. The property is uneven, and Mr.
Polanco built a fence that exceeds the permitted four feet in order to maintain what he believes
is a good visual. Mr. Polanco explained that the wall was built for safety as he was noticing debris
flying into his yard and house, some of which have damaged windows and nearly hit his children.
The Board requested that the applicant provide drawings of the fence with dimensions. At the
time of this writing, the applicant has not provided any additional materials.
During the public comment period Barbara Peckham of 144 Highland Avenue introduced herself
as an abutting property owner. Ms. Peckham contends that the wall runs along her driveway and
creates visibility issues for her exiting her driveway onto Highland Avenue.
There was some discussion as to whether this application should be for a special permit or for a
variance. In the November 16 meeting Brennan Corriston noted that Tom St. Pierre suggested
it could be a special permit because it is a nonconforming single-family property. Members of the
Board questioned whether this should be a request for variance as the nonconforming structure
is new.
I have checked with Tom St. Pierre, who reaffirms the designation of this petition as a special
permit. He expects to attend the December 16 meeting, so will be open to discussion then.
From November 16 meeting:
Materials:
• Application
• Photos and plan
• Additional photos submitted by applicant
• Comment - Anthony Whitton
140 Highland Avenue is a single-family home in the R1 zoning district and the Entrance Corridor
Overlay District. As the documentation included with the application explains, after the house
was damaged by items that fell off a contractor’s truck and the petitioner’s daughter was almost
injured, the applicant built a six-foot high concrete wall on the property. My understanding is that
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this was built without a building permit and since then, the Building Department was called, which
brought the application to the Board. The applicant is seeking retroactive approval for the fence.
Section 8.2.4 of the zoning ordinance discusses Fences within the Entrance Corridor Overlay
District. It is reproduced here:
“8.2.4 Fences. In order to maintain and maximize aesthetic views and sight lines, all fences along
the front and side lot lines shall comply with the following standards:
1. No fence along front or side lot line shall be more than four (4) feet in height, as measured
from the curb level of the street, or average grade elevation of the land where the fence is to be
located, whichever is deemed appropriate.
2. Chain link and wire fences are prohibited along front and side lot lines.
3. Any fence constructed within an ECOD shall require a fence permit issued by the City building
department.”
The fence is over four feet in height - it is described in the application has being six feet tall.
Photos and a plot plan have been provided but no elevations showing the height of the fence have
been provided. The applicant is seeking a special permit to allow this concrete wall.
Special Permit
For the Special Permit request, the Board must weigh the following criteria and make the finding
that the proposed modifications will not be substantially more detrimental than the existing
nonconforming structure to the neighborhood:
• Social, economic, or community needs served by the proposal;
• Traffic flow and safety, including parking and loading;
• Adequacy of utilities and other public services;
• Impacts on the natural environment, including drainage;
• Neighborhood character; and
• Potential fiscal impact, including impact on City tax base and employment.
The Statement of Grounds discusses the criteria, noting generally minimal impact. The Statement
notes that the “wall has been built for the protection of our family, property and home” and that
the materials “were chosen in consideration the historic aspect of the city matching the
characteristics of the neighborhood.”
2. 11 Hersey Street
A public hearing for all persons interested in the petition of JAMES FLYNN and SAM
ALLEN to remove an owner occupancy requirement for the three-family dwelling at 11
HERSEY STREET (Map 33, Lot 30) (R2 Zoning District).
Materials:
• Application
• Zoning Board of Appeals Decision – 11 Hersey Street (1985)
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11 Hersey Street is a three-family home in the two-family residential (R2) zoning district. In 1985,
the owners at the time were granted a special permit to, “allow the continued use as a three
family dwelling”. The special permit that allowed for the continued three-family use in a two-
family zoning district included the following special condition: “The building, if sold, must remain
owner occupied”. With this petition, the applicants seek to eliminate the ownership condition
from the 1985 special permit. Tom St. Pierre believes that the ZBA has granted this type of
alteration before. Tom and I recommend you use the special permit criteria, but the outcome of
this decision will not be a special permit, it will be merely to eliminate the condition from the
past decision.
3. 10 Barton Street
A public hearing for all persons interested in the petition of BETH TOBIN for a special
permit per Section 3.3.5 Nonconforming Single- and Two-Family Residential Structures of the
Salem Zoning Ordinance from maximum height of buildings (stories) to expand a
nonconforming two-family home by adding a dormer at 10 BARTON STREET (Map 36,
Lot 409) (R2 Zoning District).
Materials:
• Application
• Plan (not to scale)
10 Barton Street is a nonconforming two-family home in the Residential Two-Family (R2) zoning
district. The property is at least nonconforming to dimensional requirements including at least
minimum lot area. In the original petition, the applicant writes they are, “proposing to build a
shed dormer in the attic”. Drawings (not to scale) accompanying the application show that the
proposed dormer would not extend beyond the footprint of the existing building or above the
peak of the existing roof.
The proposal is to add a dormer to the building, which is currently 2.5 stories. The dormer’s
exterior walls exceed two feet, therefore making the attic into a full story. This would result in
a 3-story structure in the R2 district, where the maximum height (stories) is 2.5.
The reason for the proposed construction, per the application, is to “only increase size of existing
bedrooms”.
Special Permit
For the Special Permit request, the Board must weigh the following criteria and make the finding
that the proposed modifications will not be substantially more detrimental than the existing
nonconforming structure to the neighborhood:
• Social, economic, or community needs served by the proposal;
• Traffic flow and safety, including parking and loading;
• Adequacy of utilities and other public services;
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• Impacts on the natural environment, including drainage;
• Neighborhood character; and
• Potential fiscal impact, including impact on City tax base and employment.
The Statement of Grounds notes that no impact is anticipated on any of the criteria.
4. 5 Harbor Street
A public hearing for all persons interested in the petition of LEONCIO VIZCAINO for a
special permit per Section 3.3.2 Nonconforming Uses of the Salem Zoning Ordinance to
construct a five-story extension to an existing one-story structure, and a variance from
Section 5.1.9 Central Development (B5) District to provide the required off-street
parking by use of parking facilities more than 1,000 feet away from the property at 5
HARBOR STREET (Map 34, Lot 411).
Materials:
• Application (containing Statement of Grounds and Statement of Hardship)
• Plan
5 Harbor Street is a single-story commercial structure in the Central Business (B5) zoning district.
The proposal is to extend the existing structure by adding five stories containing ten residential
units atop the existing single-story structure, resulting in a six-story structure.
The petitioner seeks relief from parking requirements, so they can provide the required amount
of parking spaces at an off-site municipal parking facility that is more than 1,000 feet from the
primary structure.
Section 5.1.9 Central Development (B5) District of the Salem Zoning Ordinance mandates that new
residential dwelling units in the B5 District must make provisions for “not less than one (1)
parking space per dwelling unit for existing buildings”, and that the parking requirements for
“rehabilitated” buildings may be accommodated by “parking at municipal or other parking facilities
[emphasis added] in the vicinity of the proposed use”. This Section goes on to require that, “All
municipal or other parking facilities which are used to satisfy the parking requirement must meet
the following criteria: The parking facility must be less than one thousand (1,000) feet from the
proposed development”.
Before submitting the application, the representative, Atty Quinn, met with Tom St. Pierre. Based
on that conversation, the petitioner qualified this construction as rehabilitation on an “existing
building”, even though it is unclear how much of the existing structure is being maintained.
Per the application, the petitioner states that “according to the City of Salem Parking Authority,
the only municipal parking facility that has room to contract with the owner of a anew residential
development is the Museum Place Parking Garage, which is located about 1,400 feet away from
the property”.
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I have confirmed that Atty Quinn spoke to Associate Parking Director Alan Sullaway about finding
available spaces in municipal parking facilities.
The applicant is seeking a special permit and a variance. Per the application, the petitioner states
that, “the existing parking on site is not compliant with the parking dimensions of access required
by the Ordinance”. The special permit is to change from the existing non-conforming accessory
use to a less detrimental, but still non-conforming accessory use. It is not clear to me whether
this would provide relief for the nonconforming parking they propose on-site, or for the
nonconforming parking they propose off-site, or both. The plans provided with the application
do not show where the existing nonconforming parking is.
Some questions and notes I have for the Board to consider:
• It is unclear to me if Section 3.3.2 Nonconforming Uses applies to off-street parking, which
is an Accessory Use. Perhaps Tom St. Pierre or members of the Board can recall past
precedent?
• They are proposing to make the building nonconforming by increasing the Floor Area
Ratio to 6.2:1 (per submitted plans), which is above the 6:1 maximum for B5. They do not
address this in the application.
• The applicant seeks relief for construction on an existing building, not new construction.
If this were new construction, they would be required to provide 1.5 parking spaces per
dwelling unit for new construction.
• The application does not show how many parking spaces are proposed off-site.
• As noted above, Section 5.1.9 states that parking requirements for “rehabilitated”
buildings may be accommodated by “parking at municipal or other parking facilities
[emphasis added] in the vicinity of the proposed use”. The application describes that
municipal parking lots within the 1,000ft required distance are unavailable, but does not
discuss “other parking facilities”.
Special Permit
For the Special Permit request, the Board must weigh the following criteria and make the finding
that the proposed modifications will not be substantially more detrimental than the existing
nonconforming structure to the neighborhood:
• Social, economic, or community needs served by the proposal;
• Traffic flow and safety, including parking and loading;
• Adequacy of utilities and other public services;
• Impacts on the natural environment, including drainage;
• Neighborhood character; and
• Potential fiscal impact, including impact on City tax base and employment.
The Statement of Grounds speaks to the special permit criteria.
Variance
For the Variance request, the Board must weigh the following criteria:
City of Salem: Zoning Board of Appeals
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a) Special conditions and circumstances that especially affect the land, building, or structure
involved, generally not affecting other lands, buildings, and structures in the same
district;
b) Literal enforcement of the provisions of the Ordinance would involve substantial
hardship to the applicant; and
c) Desirable relief may be granted without substantial detriment to the public good, and
without nullifying or substantially derogating from the intent of the district or the
purpose of the ordinance.
The Statement of Hardship speaks to the variance criteria.
5. 2 Howard Street
A public hearing for all persons interested in the petition of OCELOT OPERATIONS,
LLC for a special permit per Section 3.3.3 Nonconforming Structures of the Salem Zoning
Ordinance from maximum height of buildings (stories) to expand an existing,
nonconforming multifamily dwelling at 2 HOWARD STREET (Map 35, Lot 153) (R2
Zoning District).
Materials:
• Application
• Plan
2 Howard Street is a multi-family residential structure in the Residential Two-Family (R2)
zoning district. The proposal is to expand the existing three-story structure by constructing an
addition to the third-story. The existing structure is non-conforming to dimensional
requirements and use. It exceeds the two-family units maximum, and encroaches on at least the
minimum depth of rear yard.
Per the application, the petitioner states that the construction “will not further encroach on this
setback”, and “will not be exceeding the current height and number of stories”. The addition will,
“create larger units”, not create any new units.
Special Permit
For the Special Permit request, the Board must weigh the following criteria and make the finding
that the proposed modifications will not be substantially more detrimental than the existing
nonconforming structure to the neighborhood:
• Social, economic, or community needs served by the proposal;
• Traffic flow and safety, including parking and loading;
• Adequacy of utilities and other public services;
• Impacts on the natural environment, including drainage;
• Neighborhood character; and
• Potential fiscal impact, including impact on City tax base and employment.
City of Salem: Zoning Board of Appeals
Staff Memorandum – January 21, 2020 Meeting
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The Statement of Grounds notes that no impact is anticipated on any of the criteria.
6. 157 Boston Street
A public hearing for all persons interested in the petition of JOSH CHMARA for a special
permit per Section 3.3.2 Nonconforming Uses of the Salem Zoning Ordinance to change
from one non-conforming use (single-family dwelling) to another (two-family dwelling),
and a variance from Section 5.1.8 Table of Required Parking Spaces to construct two
parking spaces instead of the required three spaces at 157 BOSTON STREET (Map 16,
Lot 66) (B2 and ECOD Zoning Districts).
Materials:
• Application
• Plan
• Parking plan (no scale)
157 Boston Street is a single-family residential structure in the Business Highway (B2) and
Entrance Corridor Overlay (ECOD) zoning districts. The proposal is to convert the existing
structure into a two-family residence. In the application, the petitioner writes, “the footprint of
the existing structure will remain the same”.
The existing use and proposed use are Not Allowed in the Business Highway (B2) zoning district.
The property is a Nonconforming Single-Family Residential Structure, and the applicant us
correctly applying for a special permit to alter a nonconforming use.
The existing property has no (0) off-street parking spaces. Off-street parking requirements are
described in Section 5.1.8 Table of Required Parking Spaces of the Salem Zoning Ordinance. Per
this section, two-family dwellings are required to have, “One and one-half (1½) spaces per
dwelling unit”. The applicant is seeking a variance from this requirement. In their proposal, the
applicant proposes constructing two (2) parking spaces, that would be fewer than the required
three (3) spaces.
Special Permit
For the Special Permit request, the Board must weigh the following criteria and make the finding
that the proposed modifications will not be substantially more detrimental than the existing
nonconforming structure to the neighborhood:
• Social, economic, or community needs served by the proposal;
• Traffic flow and safety, including parking and loading;
• Adequacy of utilities and other public services;
• Impacts on the natural environment, including drainage;
• Neighborhood character; and
• Potential fiscal impact, including impact on City tax base and employment.
The Statement of Grounds notes that no impact is anticipated on any of the criteria.
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Variance
For the Variance request, the Board must weigh the following criteria:
a) Special conditions and circumstances that especially affect the land, building, or structure
involved, generally not affecting other lands, buildings, and structures in the same
district;
b) Literal enforcement of the provisions of the Ordinance would involve substantial
hardship to the applicant; and
c) Desirable relief may be granted without substantial detriment to the public good, and
without nullifying or substantially derogating from the intent of the district or the
purpose of the ordinance.
The Statement of Hardship notes that the petitioner is “only able to fit two paces” on the
property. The statement continues that, “relief…would be beneficial to the public good because
it would add two new off-street spaces for a property”.
III. Approval of Minutes
Draft minutes will be posted in SharePoint.
1. December 16, 2020
IV. Old/New Business
V. Adjournment