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BOA_9 Franklin Street - Decision (Certified) CITY OF SALEM, MASSACHUSETTS Alf 2 6 2021 BOARD OF APPEALS �r� I 1 hereby certi 0 days have 98 WASHINGTON STREET♦ SALEM,MASSACHUSETTS 019 TEL:978-619-5685 r-__j - expired fr �1f 4#is instrument rn was received, anPthat NO APPEALS has been fil in this office. - 3 May 5, 2021 � A True Co7i Decision o ATTEST: CLERK, , Ma CIO pity o alem Board of Appeals Petition of DAVID CUTLER for a special permit per Section 3.3.2 Nonconforming Uses of the Salem Zoning Ordinance to change from one nonconforming use (industrial) to another (multifamily dwelling), and a variance per Section 4.1.1 Table ofDimensional Requirements from minimum lot frontage and width,minimum depth of rear yard, minimum distance between buildings on a lot,minimum width of side yard, and minimum lot area per dwelling at 9 FRANKLIN STREET (Map 26,Lot 375) (Bl and R2 Zoning Districts). A public hearing on the above Petition was opened on April 21,2021 pursuant to M.G.L Ch. 40A, 11 and closed on that date with the following Zoning Board of Appeals members present:Mike Duffy (Chair),Peter A. Copelas,Rosa Ordaz,Paul Viccica, Carly McClain (Alternate),and Steven Smalley (Alternate). Board member Jimmy Tsitsinos was absent. The petitioner seeks a special permit per Section 3.3.2 Nonconforming Uses of the Salem Zoning Ordinance to change from one nonconforming use(industrial) to another(multifamily dwelling),and a variance per Section 4.1.1 Table of Dimensional Requirements from minimum lot frontage and width, minimum depth of rear yard,minimum distance between buildings on a lot,minimum width of a side yard,and minimum lot area per dwelling unit at 9 Franklin Street. Statements of Fact: 1. In the petition date-stamped February 24,2021 the petitioner requested a special permit per Section 3.3.2 of the Salem Zoning Ordinance "in order to change from one non-conforming use to another non-conforming use",and a variance from provisions of Section 4.1.1 of the Zoning Ordinance. 2. 9 Franklin Street is owned by 11 Franklin LLC. 3. The application was filed by Attorney Scott Grover,representing the petitioner David Cutler. 4. The application was initially accompanied by plans stamped by Scott P. Cameron Civil on February 13,2021.According to those plans 9-11 Franklin Street is a 70,000 (+/-) sq ft lot. According to the Statement of Grounds/Hardship submitted with the initial application,9- 11 Franklin Street is currently occupied by a "large industrial warehouse type building at the City of Salem Board of Appeals May 5,2021 Project:9 Franklin Street Page 2 of 7 front of the property".The petitioner is proposing to subdivide the lot to create two parcels. One of the resulting parcels,9 Franklin Street is proposed to be a 36,450 sq ft flag lot with a 31(+/-) ft frontage on Franklin Street. 5. Per the Statement of Grounds/Hardship submitted with the initial application, the proposal is to"construct 12 townhouse style units located in three buildings" at 9 Franklin Street. 6. 9 Franklin Street is split by a zoning district boundary line with a portion of the area in the Business Neighborhood (B1) and a portion in the Residential Two-Family (R2) districts. Two of the proposed residential structures will be in the R2 district,and one will be in the B2 district. 7. The existing industrial use is nonconforming in both the B1 and R2 zoning districts. 8. The requested relief,if granted,would allow the petitioner to change from one nonconforming use (industrial) to another (multifamily dwelling) and construct three multi- family residential structures that are nonconforming to several dimensional requirements including minimum lot frontage and width,minimum depth of rear yard,minimum distance between buildings on a lot,minimum width of side yard,and minimum lot area per dwelling. 9. Prior to the March 17,2021 meeting of the Board of Appeals,the petitioner requested to continue the petition to the next regularly scheduled meeting on April 21,2021. 10. Due to the ongoing COVID-19 pandemic and related precautions and Governor Baker's March 12,2020 Order Suspending Certain Provisions of the Open Meeting Law,G.L. c. 30A,§18,and the Governor's March 15,2020 Order imposing strict limitations on the number of people that may gather in one place,the March 17,2021 meeting of the Board of Appeals was held remotely,via the online platform Zoom. 11. In the March 17,2021 meeting of the Board of Appeals,the Board voted four(4) in favor (Steven Smalley,Carly McClain,Paul Viccica,and Mike Duffy (Chair)) and none (0) opposed to continue the hearing to the special meeting scheduled for April 21,2021. No testimony was heard on the matter on March 17,2021. 12. On April 8,2021,the applicant provided an updated set of plans. Drawing No. C-2 of the updated plans note two revisions: "1) Building shift&add walkway", and"2)Driveway& Walkway Revisions". 13. Due to the ongoing COVID-19 pandemic and related precautions and Governor Baker's March 12,2020 Order Suspending Certain Provisions of the Open Meeting Law,G.L. c. 30A,§18,and the Governor's March 15,2020 Order imposing strict limitations on the number of people that may gather in one place,the April 21,2021 meeting of the Board of Appeals was held remotely,via the online platform Zoom. City of Salem Board of Appeals May 5,2021 Project:9 Franklin Street Page 3 of 7 14. At the April 21,2021 public hearing the applicant was represented by Attorney Scott Grover; Scott Cameron of The Morin-Cameron Group;and Dan Ricciarelh of Seger Architects. 15. At the April 21,2021 public hearing Attorney Scott Grover explained that 9 Franklin Street is an unusually large irregular-shaped lot surrounded mostly by residential lots.Another unusual feature is the lot is split between two zoning districts with a portion in the B1 and a majority in the R2.Presently the lot is occupied by a large industrial building.He described how in 2019,the former owner of the property received approval by the ZBA to replace a building that was burnt down with a multiple-story commercial structure.He emphasized that this proposed commercial building is permitted and could be built.The plan is to split the existing lot at 9-11 Franklin street into two lots.The existing commercial building in the front would remain as 11 Franklin Street,and the proposed residential use in the rear would be 9 Franklin Street.Mr. Grover showed plans of the proposal and described how the proposal included three residential structures with 12 units and 30 parking spaces. He stated that the applicant team hosted a couple neighborhood meetings,and feedback from the public in those meetings inspired changes in the proposed plan. Mr. Grover stated the project is subject to Site Plan Review by the Planning Board;requires a Flood Hazard Overlay special permit from the Planning Board,and an Order of Conditions from the Conservation Commission. He discusses the special permit criteria emphasizing that the area where the residential structures are proposed is surrounded by residential lots and is itself mostly in a residential zone. He describes the dimensional relief requested through the variances. 16. At the April 21,2021 public hearing Scott Cameron of Morin-Cameron Group presented an existing conditions site plan,proposed conditions site plan.Mr. Cameron discussed the dimensional nonconformities of the proposed plan. 17. At the April 21,2021 public hearing Dan Ricciarelli of Seger Architects presented elevations and renderings. 18. At the April 21,2021 public hearing Building Commissioner Tom St.Pierre noted that the elevations show all three proposed buildings are three stories tall. Per Section 4.1.1 Table of Dimensional Requirements of the Salem Zoning Ordinance the maximum height of buildings (feet)in the R2 district is 35 feet,and maximum height of buildings (stories) is 2.5 stories. The maximum height of buildings (feet) in the B1 district is 35 feet,and there is no maximum height of buildings (stories). Mr. St. Pierre stated that the two proposed residential structures in the R2 district require a dimensional variance that the petitioner did not include in their original application and was not advertised. Mr. Duffy stated that the applicant could proceed with the current application but would need to re-apply to the Board of Appeals to receive the required dimensional relief for maximum height of buildings (stories) for the two residential structures in the R1 district. Mr. Grover stated the applicant would like to proceed with this application,then re-apply for the additional relief in a new petition. 19. At the April 21,2021 public hearing the Board discussed the proposal. Carly McClain asked whether the residential units would be rentals or condos,and who would be responsible for City of Salem Board of Appeals May 5,2021 Project:9 Franklin Street Page 4of7 snow clearance. The applicant,David Cutler,replied that the units would all be condos,and the snow clearance would be the responsibility of the homeowners association. Ms.McClain asked if the existing utilities are sufficient for the proposed 12 residential units. Mr. Cameron replies that the utilities in the street have sufficient capacity for the proposed use.Rosa Ordaz asked about the impact of building new structures on the identified floodplain on the property. Mr. Cameron stated that proposal would shift the existing flood area into the middle of the property,away from the proposed and existing structures. He noted no substantial impacts. Ms. Ordaz asked if any of the units would be accessible for wheelchair users,or if all the units are accessed with stairs. Dan Ricciarelli responded that all of the units are accessed with stairs, so none are accessible for wheelchair users. Chair Mike Duffy asked if the design team considered other site layouts that included larger rear setbacks. Scott Cameron stated that they had considered many different configurations. He mentioned that the existing fifteen (15) foot rear setback allows for plantings that would help provide separation between the proposed structures and existing neighboring properties. 20. At the April 21,2021 public hearing(3) members of the public spoke in opposition,two (2) members of the public spoke in support, and (4) members of the public commented on the proposal.The members of the public who spoke in opposition were: (no name given) of 16 Foster Street;Anne Sterling of 29 Orchard Street,Andrew Fett of 0 Felt Street Way. The members of the public who spoke in support were:Jay Goldberg of 7 Franklin Street; Stephen Cirolamo of 18 Foster Street.The members who offered genczal comments were: Therese Golden of 6 Orchard Street,Richard Rivera (no address given),Nicole R.icadello of 5 Foster Street,and Steve Kapands of 23 Wisteria Street. 21. At the April 21,2021public hearing Staff Planner,Lev McCarthy,read into the record a summary of a letter in support of the petition submitted by Allison Millerick of 31 Highland Street. Mr. McCarthy received Ms. Millerick's comment on April 21,2021,but had not uploaded the comment to the project file in time for the Board to review ahead of the start of the public hearing. 22. At the April 21,2021 public hearing representative Attorney Scott Grover addressed several of the public comments pertaining to traffic. He noted that there is an approved plan for a 12,000 sq ft commercial building that could be built on this site,so the proposal in this application should be considered against that commercial alternative. Mr. Grover stated that the proposed residential use would have much less impact on traffic than a commercial use. 23. At the April 21, 2021 public hearing,Chair Duffy noted that part of the argument for the variance request was related to economic viability of the project. Chair Duffy asked Mr. Grover for further explanation. Mr. Grover explained that a large commercial structure is permitted for this site, so in order to forgo that approved project,and have residential use on this site,the applicant would need to have a certain number of residential units to make it as economically feasible. 24. At the April 21,2021 public hearing,Chair Duffy asked Mr. Grover to confirm that this proposal would require a subdivision. Mr. Grover confirms that they will need to apply for a Form A subdivision from the Planning Board. City of Salem Board of Appeals May 5,2021 Project:9 Franklin Street Page 5 of 7 25. Mr.Duffy noted that some of the hardship is from wanting to change this property to a residential use. Mr. Grover stated that"the essence of the hardship is the desire to restore what is a residentially zoned parcel to a residential use,and because the commercial use has some significant value,you can't achieve it without a certain density".He cited several other projects in Salem that took underutilized industrial parcels and turn them into a more productive residential use that he states the city needs. The Salem Board of Appeals, after careful consideration of the evidence presented at the public hearings, and after thorough review of the petition, including the application narrative and plans, makes the following findings that the proposed project meets the provisions of the City of Salem Zoning Ordinance: Variance Findings: 1. Special conditions and circumstances especially affect the land,building,or structure involved, generally not affecting other lands,buildings,and structures in the same district:The parcel is the only one in the area that is split between residential and business zoning districts and is surrounded on three sides by residentially used parcels. 2. Utcral enforcement of the provisions of the Ordinance would in:olve substantial hardship to the applicant because it would not be economically feasible to restore the parcel to the residential use the base zoning intends at a lower unit density. 3. 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. Special Permit Findings: The Board finds that the proposed modifications will not be substantially more detrimental than the existing nonconforming structure to the neighborhood: 1. Social,economic, or community needs are served by this proposal. The work will restore the residentially-zoned lot to residential use,and provide more housing units. 2. Traffic flow and safety, including parking and loading: The proposed residential use would likely have less effect on traffic than an approved commercial use. 3. Adequate utilities and other public services already service the parcel. 4. Impacts on the natural environment,including drainage: No negative impact is expected;the applicant described plans to redirect flooding to the middle of the parcel, away from the residential structures. City of Salem Board of Appeals May 5,2021 Project:9 Franklin Street Page 6of7 5. Neighborhood character: The project is in keeping with the neighborhood character. This residential proposal is surrounded by residential plots. 6. Potential fiscal impact,including impact on City tax base and employment:There is a potential positive fiscal impact,including enhancing the City's tax base by enhancing the value of the property and employment from construction. On the basis of the above statements of fact and findings, the Salem Board of Appeals voted five (5) in favor (Mike Duffy (Chair),Paul Viccica,Rosa Ordaz,Peter Copelas, Steven Smalley) and none (0) opposed to grant to David Cutler a special permit per Section 3.3.2 Nonconforming Uses of the Salem Zoning Ordinance to change from one nonconforming use (industrial) to another (multifamily dwelling),and a variance per Section 4.1.1 Table of Dimensional Requirements from minimum lot frontage and width, minimum depth of rear yard, minimum distance between buildings on a lot, minimum width of side yard,and minimum lot area per dwelling at 9 Franklin Street, subject to the following terms, conditions, and safeguards: Standard Conditions: 1. Petitioner shall comply with all city and state statutes,ordinances,codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted to and approved by the building commissioner. 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner shall obtain a building permit prior to beginning any construction. 5. Exterior finishes of the new construction shall be in harmony with the existing structure. 6. A Certificate of Occupancy is to be obtained. 7. A Certificate of Inspection is to be obtained. 8. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including,but not limited to,the Planning Board. 9. All construction shall be done per the plans and dimensions,submitted to and approved by this Board,as amended. No change,extension,material corrections,additions, substitutions, alterations, and/or modification to an approval by this Board shall be pen pitted without the approval of this Board,unless such change has been deemed a minor field change by the Building Commissioner in consultation with the Chair of the Board of Appeals. 70k z2e Mike Duffy,W, 41 Board of Appeals City of Salem Board of Appeals May 5,2021 Project:9 Franklin Street Page 7 of 7 A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK. Appeal from this decision,if any,shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A,and shall be filed within 20 days of filing of this decision in the office of the City Clerk. Pursuant to the Massachusetts General Laws Chapter 40A, Section 11,the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk has been filed with the Essex South Registry of Deeds.