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boa_19-21_charter_street_aka_22_hawthorne_boulevard_-_stamped_decision 7.31.2019 � CITY OF SALEM, MASSACHI"Ipt 'S B OARD OF APPEALS 58 Y P,LX 98 WASHINGTON STREET♦ SALEM,XjASSACHUSETTS 01970 ' iQ�' ` KIMBERLEY DRISCOLL TEL:978-745-9595 MAYOR July 31, 2019 Decision City of Salem Board of Appeals Petition of MICHAEL BECKER for a special permit per Section 15-6 (d) of the Salem Code of Ordinances to allow the continued operation of three non-owner occupied short-term rental units in the mixed-use building at 19-21 CHARTER STREET, also known as 22 HAWTHORNE BOULEVARD (Map 35, Lot 271) (B5 Zoning District).* *NOTE:During the public hearing on this petition, the Board voted to approve only one of the three units for which the special permit was applied, 22 Hawthorne Boulevard Unit 1. A public hearing on the above Petition was opened on July 17,2019 pursuant to M.G.L Ch. 40A,§ 11 and closed on that date with the following Salem Board of Appeals members present: Peter A. Copelas,Mike Duffy (Chair),Jimmy Heiserman,Rosa Ordaz (alternate),Jimmy Tsitsinos,and Paul Viccica (alternate). The petitioner seeks a special permit per Section 15-6 (d) [15-6 (4)) of the Salem Code of Ordinances to allow the continued operation of three non-owner occupied short-term rental units. 19-21 Charter Street, also known as 22 Hawthorne Boulevard,is a mixed-use building. Statements of Fact: 1. In the petition date-stamped June 17,2019,the petitioner requested a special permit per Section 15-6 (d) of the Salem Code of Ordinances to allow the continued operation of three non-owner occupied short-term rental units,Units 1,2, and 3. 19-21 Charter Street,also known as 22 Hawthorne Boulevard,is a mixed-use building. The petitioner is seeking to continue the use of Units 1,2,and 3 in this building as non-owner occupied short-term rental units by special permit per the procedure set forth in Section 15-6 (4) of the Salem Code of Ordinances. 2. The petition was advertised as being for a special permit per Section 15-6 (d) of the Salem Code of Ordinances.This section is actually titled Section 15-6 (4) of the Salem Code of Ordinances. Both refer to the same language, the fourth subsection of Section 15-6 of the Code of Ordinances. Going forward, Section 15-6 (4)will be referenced. 3. The petition was presented by a representative from petitioner Michael Becker's office. 4. The property is a mixed-use building located in the Central Development(B5) Zoning District. The petitioner provided various forms of proof for the three units for which special permits were applied, as discussed below. 5. Chapter 15 of the Salem Code of Ordinances,Short-Terre 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-Terre Rentals. Section 15-6 (4) Short--Terra Rental of a Nan-Owner Oarrpied 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 City of Salem Board of Appeals July 31,2019 Project: 19-21 Charter Street aka 22 Hawthorne Boulevard Page 2 of 6 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." 6. The ordinance allowing short-term residential rentals in the City of Salem was filed with the City Clerk on July 16,2018. 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.Assistant City Solicitor Victoria Caldwell stated in a memorandum to Staff Planner Brennan Corriston dated March 15,2019 that 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. The petition was submitted and date-stamped June 17,2019. Because the deadline of June 15,2019 fell on a Saturday (a day when City Hall is closed), the effective deadline was the next day that City Hall was open following the deadline,which was June 17,2019.As such,this petition date-stamped June 17,2019 was timely submitted. 9. Mr. Becker submitted his petition per the process outlined in Section 15-6 (4) of the Salem Code of Ordinances. 10. Section 3.0 Table ofPrincapal and Accessory Uses of the Salem Zoning Ordinance was amended in 2018 to include the new use of"Non-Owner Occupied Short-Tenn Rentals."Per Section 3.0, 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 (B1); • Business Highway (B2); • Business Wholesale&Automotive (B4); • Central Development(B5). City of Salem Board of Appeals July 31,2019 Project: 19-21 Charter Street aka 22 Hawthorne Boulevard Page 3 of 6 11. As noted above, the property is located in the Central Development(B5) zoning district. Per Section 3.0 of the Salem Zoning Ordinance, the Non-Owner Occupied Short-Term Rentals use is allowed by special permit from the Zoning Board of Appeals in this district. 12. The requested relief,if granted,would allow the Petitioner to continue to operate three units in the mixed-use building at 19-21 Charter Street as three non-owner occupied short-term rental units. 13. The submitted application included three documents intended to serve as proof of the short-term rental of three units in this property, Units 1,2,and 3. One is a rental agreement for"19 Charter Street Unit 1"with an arrival date of November 30,2017 and a departure date of January 1,2018. The second is a short-term rental agreement for"21 Charter Street Salem MA 01970"with an arrival date of April 8 and a departure date of July 10. The signatures in this document from March 16,2018 indicate that the April and July dates are in 2018.This unit is described under"Name of Premises"in the agreement as "22 Hawthorne Boulevard Salem MA 01970." "Unit 2"is handwritten next to"21 Charter Street..."The third document is a rental agreement for"19 Charter Street Unit 3"with an arrival date of March 11,2018 and a departure date of May 28,2018. 14. On July 17,2019,prior to the meeting,Attorney William Quinn,representing Mr. Becker,supplied a packet of additional evidence of short-term rentals for 19-21 Charter Street,also known as 22 Hawthorne Boulevard. This included another rental agreement for"19-21 Charter Street Unit 1"with an arrival date of January 17,2017 and a departure date of February 11,2017. On this page was handwritten "25 days."This packet also included the first page of each of the three rental agreements referenced above,with the length of rental handwritten on the page: "31 days" for Unit 1,"2 1/2 months" for Unit 3,and "2018 3 months" for Unit 2. (The packet also included an unofficial property card for 22 Hawthorne Boulevard.) 15. "Short-term rental"is defined in the Salem Code of Ordinances,Section 15-2,as follows: Short-term rental(s). The use of a residential unit for residential occupancy by a person or persons for a period of fewer than 30 consecutive calendar days for a fee. A short-term rental may or may not be facilitated through a booking agent. 16. Rentals for periods of longer than 30 consecutive calendar days do not meet the definition of short- term rental in the Salem Code of Ordinances.As such,the Board's interpretation as informed by the Assistant City Solicitor is that any rentals for periods of longer than 30 consecutive calendar days may not be used as precedent for being"engaged in the short-term rental" of a property. 17. The first night 19-21 Charter Street Unit 1 was rented as a short-term rental,based on the evidence provided,was at the latest January 17,2017;this is before the ordinance allowing short-term residential rentals in the City of Salem was filed with the City Clerk on July 16,2018. 18. No evidence was provided of 19-21 Charter Street Unit 2 or Unit 3 being used as a short-term rental prior to July 16,2018. 19. At the July 17,2019 public hearing,Attorney William Quinn,representing petitioner Michael Becker, discussed the petition.Attorney Quinn noted that the building includes three residential units and a small office. 20. Mr. Becker stated that he allowed a neighbor to stay at 19-21 Charter Street for a period of 10 days after the Pickering Wharf fire and refused payment.Attorney Quinn provided a"License to Use and Occupy Premises By and Between" the licensee and Mr. Becker,licensor, for"19 Charter Street Unit I"The period is from "Tuesday March 20 2017 at 12pm until March 30,2017."Attorney Quinn described this as "a 10-day rental agreement for no consideration to a neighbor under stress."Mr. City of Salem Board of Appeals July 31,2019 Project: 19-21 Charter Street aka 22 Hawthorne Boulevard Page 4 of 6 Becker stated that he forwarded an email from the licensee to Staff Planner Brennan Corriston referencing this situation. 21. At the July 17,2019 public hearing,Attorney Quinn stated that he thought this would have to be continued. Peter A. Copelas stated that some of the other petitions that the Board continued were because of ambiguity regarding the evidence that was provided. He stated that there really is no ambiguity regarding the evidence: there are several units that do not meet the conditions of the Ordinance by anybody's understanding. Mr. Copelas stated that he is a little less comfortable continuing this petition when there was ample opportunity to provide the evidence,and the evidence that was provided does not meet the requirements. 22. Mr. Copelas noted that the proof provided for Unit 1 (the 2017 rental agreement,as discussed in#13 above) includes a handwritten adjustment to the rental agreement that seems to be initialed, so the Board can take that on its face as being for a period of 25 days. (The adjustment referenced changed the arrival date for the rental from January 9,2017 to January 17,2017,and appears to have been initialed by the tenant.) Mr. Copelas reviewed the other rental agreements provided,which were for periods longer than 30 consecutive days. Mr. Copelas stated that it would appear to him that the petitioner has "met the bar" for one of the units and has not met the bar for the other two. Chair Duffy stated that the requirement of the Ordinance is less than thirty(30) days; on the basis of the records the Board has,there is only one unit with evidence (that meets this standard). 23. Mr. Becker asked about the unit for which he did not accept payment. Paul Viccica stated that if it was legitimately a short-term unit,it would have more evidence. 24. At the July 17,2019 public hearing, no (0) members of the public spoke in favor of the petition and one (1) member of the public spoke in opposition to the petition. One (1) other member of the public had stated in her opposition to an earlier petition from Mr. Becker in the same meeting that she wanted her testimony to apply to Mr. Becker's other petitions as well. In addition,Chair Duffy referenced three (3) emails from members of the public expressing opposition to 23 Summer Street and the other properties brought by Michael Becker seeking special permits. (These other properties include 19-21 Charter Street.) The letters were from Richard Lindeman of 113 Federal Street;Lois Ferraresso of 315 Essex Street;and Meg Twohey of 122 Federal Street. Chair Duffy read from these emails earlier in the meeting. 25. Paul Viccica sought clarification on the location of Unit 1 in 19 or 21 Charter Street. There was discussion.Attorney Quinn stated that he thinks the City considers the property 22 Hawthorne Boulevard—that is the legal address. 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: The property owner was engaged in the short-term rental of 19-21 Charter Street, also known as 22 Hawthorne Boulevard, Unit 1 as of the date the Ordinance was filed. There was insufficient evidence presented in support of the Petitioner's application to support a finding that the property owner was engaged in the short-term rental of 19-21 Charter Street Unit 2 or 19-21 Charter Street Unit 3 as of the date the Ordinance was filed. Findings for Special Permit: The Board finds that the continued use will not be substantially more detrimental to the neighborhood. City of Salem Board of Appeals July 31,2019 Project: 19-21 Charter Street aka 22 Hawthorne Boulevard Page 5 of 6 1. Social,economic and community needs are served by the proposal. 2. There is adequate traffic flow and safety,including parking and loading. 3. Adequate utilities and public services service the property. 4. There will be no change in impacts on the natural environment, including drainage, as there are no proposed changes to the exterior. 5. This continued use will not be substantially more detrimental to neighborhood character. 6. Potential fiscal impact, including impact on City tax base and employment: There is a potential positive fiscal impact from this use. On the basis of the above statements of fact and findings,the Salem Board of Appeals voted five (5)in favor (Jimmy Tsitsinos,Jimmi Heiserman,Mike Duffy (Chair),Peter A. Copelas,and Paul Viccica) and none (0) opposed to grant the requested Special Permit per Section 15-6 (d) [15-6 (4)] of the Salem Code of Ordinances to allow the continued operation of one non-owner occupied short-term rental unit in the mixed- use building at 19-21 Charter Street, also known as 22 Hawthorne Boulevard, Unit 1, subject to the following terms, conditions, and safeguards:* *The petition was originally advertised as written below. The Board decided to approve only one of the three units for which the special permit was applied,22 Hawthorne Boulevard Unit 1. Original advertisement: Petition of MICHAEL BECKER for a special permit per Section 15-6 (d) of the Salem Code of Ordinances to allow the continued operation of three non-owner occupied short-term rental units in the mixed-use building at 19-21 CHARTER STREET,also known as 22 HAWTHORNE BOULEVARD (Map 35,Lot 271) (B5 Zoning District). 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. Special Condition: 1. A Certificate of Fitness is to be obtained prior to Petitioner engaging in any further short-term rentals of this property in accordance with this Special Permit. C Mike Duffy,("lair Board of Appeals City of Salem Board of appeals July 31,2019 Project: 19-21 Charter Street aka 22 Hawthorne Boulevard Page 6 of 6 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.