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boa_24_hawthorne_boulevard_-_stamped_decision 4.3.2019 f •Cv�T � CITY OF SALEM MASSACHUSETTS BOARD OF APPEAL 98 WASHINGTON STREET SALEM,MASSACHUSETTS 01970 KIMBERLEY DRISCOLL TEL:978-745-9595 MAYOR e•a 0 April 3, 2019 k�. Decision ' City of Salem Board of Appeals c7s r-- Petition of BRIAN BURNS for a special permit per Section 15-6 (d) of the Salem Co9bf Ordinances to allow the continued operation of five non-owner occupied short-term rental units in the ten-unit apartment building at 24 HAWTHORNE BOULEVARD (Map 5�,Lot 270) (B5 Zoning District). A public hearing on the above Petition was opened on March 20,2019 pursuant to M.G.L Ch. 40A, § 11 and closed on that date with the following Salem Board of Appeals members present: Mike Duffy (Chair),Peter A. Copelas,Jimmi Heiserman,Patrick Shea,Jimmy Tsitsinos, and Paul Viccica (Alternate). The Petitioner seeks a special permit per Section 15-6 (d) of the Salem Code of Ordinances to allow the continued operation of non-owner occupied short-term rentals. Statements of Fact: 1. In the petition date-stamped January 25,2019, the petitioner requested a special permit per Section 15-6 (d) of the Salem Code of Ordinances to allow the continued operation of non-owner occupied short-term rentals. 24 Hawthorne Boulevard is a ten-unit apartment building in which five of the units have been used as non-owner occupied short-term rental units. The petitioner is seeking to continue this use by special permit,per the procedure set forth in Section 15-6 (d) of the Salem Code of Ordinances. 2. Petitioner Brian Burns presented the petition. 3. The property is a ten-unit apartment building located in the Central Development (B5) Zoning District. Five of the units in this property have been used as non-owner occupied short-term rentals prior to July 19,2018. 4. Chapter 15 of the Salem Code of Ordinances, Short-Term Rentals,was enacted by an amendment to the Code of Ordinances that was approved by the Mayor on October 1, 2018. Section 15-6 sets forth Requirements for Short-Term Rentals. Section 15-6 (d) Short-Term Rental of a Non-Owner Occupied Unit states in relevant part that"An Operator may use his or her Non-Owner Occupied Unit as a Short-Term Rental only if the Operator was engaged in the Short-Term Rental of the property as of the date this Ordinance was filed with the Council and provided that the Operator obtains a Special Permit from the Zoning Board of Appeals."The same Section states that"Qualifying Operators must petition for a Special Permit within 60 days of the date of passage of this Ordinance in order to be eligible for this exception." 5. Per the documentation submitted with this application, five units in this apartment building have been used as short-term rentals: Units 1,4, 8,9, and 10. The petitioner provided booking confirmations for these units for the following dates: City of Salem Board of Appeals April 3,2019 Project:24 Hawthorne Boulevard Page 2 of 4 • Unit 1 ("Nothing Fancy Downtown 3" on Airbnb):April 5-11,2018; • Unit 4 ("Nothing Fancy Downtown 4"):June 14-16,2018; • Unit 8 ("Nothing Fancy Downtown 5"):July 14-16,2018; • Unit 9 ("Nothing Fancy Downtown 2"):April 23-26,2018; • Unit 10 ("Nothing Fancy Downtown"):July 5-7,2018. 6. All five of these units (#1,4, 8, 9, and 10)were rented as short-term rental units before the Ordinance allowing short-term residential rentals in the City of Salem was filed on July 19,2018. 7. The deadline for qualifying operators to apply for a special permit to "grandfather"their non-owner occupied short-term rentals had been previously understood to be January 15,2019. This petition was date-stamped January 25,2019.Assistant City Solicitor Victoria Caldwell stated in a memorandum to Staff Planner Brennan Coniston dated March 15,2019 tat the deadline could be reasonably interpreted to be June 15,2019. The below is reproduced from the memorandum: • "Section 15-6 d. `Short-Term Rental of a Non-Owner Occupied Unit'requires that any petitioner seeking a special permit for an eligible non-owner occupied unit must file within 60 days of the passage of the Ordinance. The City Council passed the different ordinances relating to short-term rentals on different dates and passed the last of these,the amendment to the Use Table, on November 15, 2018. The Council,however, also amended the general ordinance to include an effective date of April 15,2019,rather than upon passage." "Given that the public was informed of the April 15 effective date, several owners of existing non-owner occupied short-term rentals,which were located in zones where they were eligible to continue to operate on a grandfathered basis with a special permit,assumed that they had until at least April 15 to submit a petition.As such,a question has arisen as to what deadline should apply to these petitions. To read all of the sections of the ordinance sections together and avoid any conflict between the provision calling for an April 15,2019 implementation date and the `60 days of passage'language in Section 15-6 d., a reasonable interpretation would be to allow any eligible owners to file a petition requesting a special permit no later than 60 days after the implementation date—on or before June 15, 2019." 8. Based on this memorandum, the petition date-stamped January 25,2019 was timely submitted. 9. Mr. Burns submitted his petition per the process outlined in Section 15-6 (d) of the Salem Code of Ordinances. 10. Section 3.0 Table of Principal and Accessory Uses of the Salem Zoning Ordinance was amended in 2018 to include the new use of"Non-Owner Occupied Short-Term Rentals."Non-Owner Occupied Short- Term Rentals are allowed by special permit from the Zoning Board of Appeals in the following Zoning Districts: • Residential Two-Family(R2); • Residential Multifamily (R3); • Business Neighborhood (131); • Business Highway (B2); • Business Wholesale&Automotive (B4); • Central Development(B5). 11. As noted above,the property is located in the Central Development(B5) zoning district. The Non- Owner Occupied Short-Term Rentals use is allowed by special permit from the Zoning Board of Appeals in this district. City of Salem Board of Appeals April 3,2019 Project:24 Hawthorne Boulevard Page 3 of 4 12. The requested relief,if granted,would allow the petitioner to continue to operate five non-owner occupied short-term rental units—Units #1, 4, 8, 9, and 10—in the ten-unit residential building at 24 Hawthorne Boulevard. 13. In the Statement of Grounds submitted with the petition,the petitioner spoke to the special permit criteria (as noted in the "Findings for Special Permit"below). 14. At the March 20,2019 public hearing, the petitioner discussed the five units for which he has requested the special permit. He noted that all five of these units have been rented prior to July 19, 2018. Chair Duffy asked the petitioner to describe the units. The petitioner noted that they are studio or one-bedroom apartments, each with its own kitchenette and one bathroom and shower stall. The petitioner described the units as little efficiency studio apartments. 15. During the public hearing,Chair Duffy made reference to the above-referenced memorandum from Assistant City Solicitor Victoria Calc�',.vell. Staff Planner Brennan Corriston read the memorandum aloud.. 16. At the March 20,2019 public hearing, three (3) members of the public spoke in favor of the petition., No (0) members of the public spoke in clear opposition to the petition, though one member of the public, Gary Gill, stated that he was puzzled as to whether this was an Airbnb or a small boutique hotel. Chair Duffy read from two letters in opposition to the petition, one from Flora Tonthat and one from Jeff Hancock.The petitioner noted that there were letters of support included with his application, and Chair Duffy stated that there was one letter from Melissa Gibson and another from Jennifer Sampson,both very much in support of the application. 17. Board member Peter Copelas read from the petitioner's Statement of Grounds. The Salem Board of Appeals,after careful consideration of the evidence presented at the public hearing,and after thorough review of the petition,including the application narrative and plans,and the Petitioner's presentation and public testimony,makes the following findings that the proposed project meets the provisions of the City of Salem Zoning Ordinance: Findings for Special Permit: The Board finds that the continued use will not be substantially more detrimental to the neighborhood. 1. Social, economic and community needs are met by the continuation of the existing use of short-term rentals and the contribution to the economic enhancement to the central development zone. 2. There will be no impacts to traffic flow and safety,including parking and loading, as the property will not be changing from its existing use. 3. The existing utilities and public services are adequate for this use. 4. There will be no impacts on the natural environment,including drainage. 5. The proposal will not change the character of the existing neighborhood. 6. The potential fiscal impact, including impact on City and tax base and employment, is positive because the City's tax base is enhanced by this use. On the basis of the above statements of fact, the Salem Board of Appeals voted five (5) in favor Jimmy Tsitsinos,Jimmi Heiserman, Patrick Shea, Mike Duffy (Chair), and Peter A. Copelas) and none (0) opposed to grant the requested Special Permit per Section 15-6 (d) of the Salem Code of Ordinances to allow the continued operation of five non-owner occupied short-term rental units in the ten-unit apartment building at City of Salem Board of Appeals April 3,2019 Project:24 Hawthorne Boulevard Page 4 of 4 24 Hawthorne Boulevard, Units #1, 4, 8, 9, and 10, 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 requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 3. A Certificate of Occupancy is to be obtained. 4. A Certificate of Inspection is to be obtained. 5. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including,but not limited to,the Planning Board. A67C Mike Duffy, air Board of Appeals i 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 fading of this decision in the ofce of the City Clerk. Pursuant to the Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permitgranted 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.