boa_11_wisteria_street_-_stamped_decision 7.31.2019 CITY OF S ALEM, MASSACHLT�F 'S
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BOARD OF APPEALS
%WASHINGTON STREET♦SALEM,MASSACHUSETTs 01 L E M, MASS
KIMBERLEY DRISCOLL TEL:978-745-9595
MAYOR
July 31, 2019
Decision
City of Salem Board of Appeals
Petition of PIOTR GOSZCZYNSKI for a 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 two-family house at 11 WISTERIA STREET (Map 33, Lot 399) (R2 Zoning District).
A public hearing on the above Petition was opened on July 17,2019 pursuant to M.G.L Ch. 40A, 5 11 and
closed on that date with the following Salem Board of Appeals members present: Peter A. Copelas,Mike
Duffy (Chair),Jinurii 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 one non-owner occupied short-term rental unit. 11 Wisteria Street is a two-family
house in which one non-owner occupied short-term rental unit has operated. The petitioner is seeking to
continue this use by special permit per the procedure set forth in Section 15-6 (4) of the Salem Code of
Ordinances.
Statements of Fact:
1. In the petition date-stamped June 11,2019,the petitioner requested a special permit per Section 15-6
of the Salem Code of Ordinances to allow the continued operation of one non-owner occupied short-
term rental unit in a two-family house. 11 Wisteria Street is a two-family house in which one non-
owner occupied short-term rental unit has operated. The petitioner is seeking to continue this use 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. Petitioner Piotr Goszczynski presented the petition.
4. The property is a two-family home located in the Residential Two-Family (R2) Zoning District. The
petitioner provided proof of non-owner occupied short-term rentals through Airbnb dating back to
July 10,2018.
5. Chapter 15 of the Salem Code of Ordinances,Short-Tern 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
Regnirements for Short-Terns Rentals. Section 15-6 (4) Short-Term Rental of a Non-Owner Owoied 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
City of Salem Board of Appeals
July 31,2019
Project:11 Wisteria Street
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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 submitted application included a Certificate of Fitness from the Salem Board of Health for 11
Wisteria Street Unit#1 dated June 19,2018. The application also included a "Transaction History"
printed from Airbnb showing rentals of the property dating back to July 11,2018.July 11,2018 is
before the ordinance allowing short-term residential rentals in the City of Salem was filed with the
City Clerk on July 16,2018. In addition,the application included a Certificate of Fitness for 11
Wisteria Street Unit#2 dated November 7,2018,as well as photos of Unit#2 and select reviews
from Airbnb.
8. 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."
9. Based on this memorandum,this petition date-stamped June 11,2019 was timely submitted.
10. Mr. Goszczynski submitted his petition per the process outlined in Section 15-6 (4) of the Salem Code
of Ordinances.
11. 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-Terre 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 (131);
• Business Highway (132);
• Business Wholesale&Automotive (134);
• Central Development (135).
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Project: 11 Wisteria Street
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12. As noted above, the property is located in the Residential Two-Family(R2) 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.
13. The requested relief,if granted,would allow the Petitioner to continue to operate one unit in the two-
family home at 11 Wisteria Street as one non-owner occupied short-term rental unit.
14. In the Statement of Grounds submitted with the petition,the petitioner spoke to the special permit
criteria (noted below).
15. At the July 17,2019 public hearing,petitioner Piotr Goszczynski discussed the petition.
16. Peter A. Copelas asked the petitioner which unit is being rented and for which he is applying for the
special permit.Mr. Goszczynski answered that it is Unit 1,the downstairs unit;his daughter lives in
Unit 2,upstairs. Mr. Goszczynski also presented a new Certificate of Fitness for 11 Wisteria Street
Unit#1 dated June 17,2019;this was submitted for the record.
17. At the July 17,2019 public hearing,Chair Duffy noted that the petition met the special requirements
for applications for special permit for non-owner occupied short-term rentals,including filing by the
deadline and showing that the petitioner was engaged in the short-term rental of the property as of
the date the Ordinance was filed.
18. At the July 17,2019 public hearing, no (0) members of the public spoke clearly in favor of or in
opposition to this petition.Three (3) members of the public had questions or expressed concerns
about the short-term rental regulations or other applications that were on the agenda,but did not
speak in opposition to 11 Wisteria Street. One (1) member of the public, Gary Gill,asked about Mr.
Goszczynski's plans for the unit long-term. Mr. Goszczynski's daughter was in the audience and
spoke about the unit,noting that the income is indispensable for her family;that all guests have good
reviews;and that the unit is a good resource for families, especially with young children or people
with dietary restrictions,as compared to hotels.
19. At the public hearing,Paul Viccica stated that the filing date was met and that there was "ample
evidence"and"good evidence"that it was an active short-term rental prior to July 16,2018. Peter A.
Copelas reviewed the standard special permit criteria.
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 the property 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.
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.
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Project:11 Wisteria Street
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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
(Peter A. Copelas,Mike Duffy(Chair),Jimmy Heiserman,Jimmy Tsitsinos,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 two-
family house at 11 Wisteria Street, Unit 1, 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.
Mike Duffy, it
Board of Appeals
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.