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boa_23_summer_street_-_stamped_decision 10.2.2019 .COW?- CITY OF SALEM, MASSACHUSEIW ,CT _ 3... BOARD OF APPEALS �� � CITY CLERK t 98 WASHINGTON STREET♦SAmm,MAss kcmusETTs 01970 S A L EM, 1'1 M SS K imBERLEY DRiscOLL TEL:978-619-5685 MAYOR October 2, 2019 Decision City of Salem Board of Appeals Petition of MIKE BECKER for a special permit per Section 15-6 (d) of the Salem Code of Ordinances to allow the continued operation of six non-owner occupied short-term rental units in the multi-family house at 23 SUMMER STREET (Map 26, Lot 463) (B5 Zoning District).* *NOTE:During the public hearing on this petition,the Board voted to approve three out of the six units for which the special permit was originally applied,23 Summer Street Units 4 5 and 6. A public hearing on the above Petition was opened on July 17,2019 pursuant to M.G.L Ch. 40A,§ 11, continued to August 21,2019 (during which meeting no testimony was heard),continued to September 18, 2019,and closed on that date with the following Salem Board of Appeals members present:Peter A. Copelas, Mike Duffy(Chair),Jimmi Heiserman,Rosa Ordaz (alternate), and Paul Viccica.At the July 17,2019 meeting, Peter A. Copelas,Mike Duffy (Chair),Jimmi Heiserman,Rosa Ordaz (alternate),Jimmy Tsitsinos,and Paul Viccica (alternate)were in attendance.At the August 21 meeting,Mike Duffy(Chair),Jimmi Heiserman, and Paul Viccica were in attendance. 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 six non-owner occupied short-term rental units. 23 Summer Street is a multi- family house. 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 six non-owner occupied short-term rental units,Units 1,2, 3,4,5,and 6,in the multi-family house at 23 Summer Street.The petitioner is seeking to continue the use of non-owner occupied short-term rentals 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 tided 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 multi-family house in the Central Development(135) zoning district. 5. 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 Regidirments for Short-Term Rentals. Section 15-6 (4) 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 City of Salem Board of Appeals October 2,2019 Project:23 Summer Street Page 2 of 7 Ordinance was filed with the Council and provided that the Operator obtains a Special Pernut 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 ofPrincdpal and Accessory Uses of the Salem Zoning Ordinance was amended in 2018 to include the new use of"Non-Owner Occupied Short-Term 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 October 2,2019 Project:23 Summer Street Page 3 of 7 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 six units in the multi-family house at 23 Summer Street as six non-owner occupied short-term rental units. 13. The submitted application included emails confirming the publication of six listings on the Airbnb website,with the followi2g listi names,lis published dates,and first available dates: Unit Listing Name Listing Published Date First Available Date Number (based on email) (based on listing published email 1 Coz-Studio in the Historic Salem Dist. 11,2018 19,2018 2 Beautiful 3 Bedroom apt in the Historic July 12,2018 July 20,2018 Salem Dist 3 Beautiful studio in the Historic Salem July 12,2018 July 20,2018 Dist. 4 Cozy 1 bedroom apt in the Historic June 30, 2018 July 8,2018 Salem Dist. 5 Charming 1 bedroom apt in the Historic June 30,2018 July 8,2018 Salem Dist 6 Beautiful 1 bedroom apt in the Historic June 30,2018 July 8,2018 Salem Dist 14. The property appeared before the Salem Redevelopment Authority and the Design Review Board (which received input from the Historical Commission) for a renovation and expansion project. The proposal was to redevelop the property by removing some of the existing building and adding a new addition,bringing the total to ten residential units at the site.The project was approved by the SRA in its May 8,2019 meeting. 15. The petitioner initially requested to continue operation of six non-owner occupied short-term rental units. However,in the application to the Salem Redevelopment Authority,Scott Grover(as attorney for the property owner,23 Summer Street LLC) wrote that"Presently,there are five condominium units located within the building." 16. The Salem Assessor's database lists five units at 23 Summer Street. The map and lot of all units at 23 Summer Street are Map 26,Lot 463. The parcel numbers (which correspond to the last three digits of the parcel ID) are 801, 802, 804, 805,and 806.There is no unit with Parcel ID 26-0463-803 in the database. 17. On July 17,2019,Attorney William Quinn,representing petitioner Michael Becker, submitted some additional documents in support of the petition,which included what appear to be screenshots from Airbnb. These screenshots included a confirmed booking beginning July 26,2018 for Unit 1;a confirmed beginning July 28,2018 for Unit 2; a confirmed booking from July 22 to July 28,2018 for Unit 5;and several confirmed bookings for Unit 6,the first of which was from July 10 to 16,2018. 18. At the July 17,2019 public hearing,Attorney William Quinn,representing petitioner Michael Becker, discussed the petition. He discussed the documents submitted in support of the application. He noted that he believes that there are six on-site parking spaces.He discussed the special permit criteria. 19. At the July 17,2019 public hearing, the above-mentioned matter of the Assessor's records showing five units was discussed. Attorney Quinn stated that the issue would have to go to the City Assessor, and that he would have to see condominium documents. City of Salem Board of Appeals October 2,2019 Project:23 Summer Street Page 4 of 7 20. At the July 17,2019 public hearing,Rosa Ordaz asked for proof of actual rentals,not just Airbnb listings.Jimmi Heiserman stated that it looked like only Unit 6 was rented before the July 16,2018 date;not Units 1-5. 21. At the July 17,2019 public hearing,Attorney Quinn argued that the Ordinance refers to being engaged in the business of short-term rentals. The Board discussed the meaning of the term "engaged"and the Board's interpretation. Peter Copelas stated that for a previous petition in which the unit was not listed before the Ordinance filing date,the Board found that that was not sufficient. Chair Duffy discussed the intent of the term"engaged,"arguing that the Ordinance was trying to preserve rights of people already conducting this type of business. 22. At the July 17,2019 public hearing,Planner Brennan Corriston noted that the first dates that three of the units—Units 1,2,and 3—were available to be rented,according to the listings provided by the petitioner,were July 19,20,and 20,2018,respectively. 23. At the July 17,2019 public hearing,Chair Duffy read an email from Tom Daniel,Director of the Department of Planning and Community Development regarding the 25 Lynde Street and 23 Summer Street applications. In his email,Mr. Daniel noted in part that"The Salem Redevelopment Authority reviewed additions to these properties over several meetings between February and June of this year. The SRA approved the addition to 23 Summer Street in May 2019 and the addition to 25 Lynde Street in June 2019. It was understood that the additions were creating additional housing units to meet local housing demand. Use as short-term rentals was not addressed. The addition for 23 Summer Street also requires review and approval by the Planning Board,and one of the ten units would be required to be affordable. I understand that the current matter before the ZBA is regarding short-term rentals in existing units.The question I would like answered is whether or not the applicant will be moving forward with the additions."Mr. Becker stated that they would be moving forward with the additions, and that they may abandon some of the short-term rentals. The reason for renting short-term is because the permitting process is long and costly, so rather than putting(long-term) tenants there, they have short-term tenants. They are planning to clear out the building when they do construction after they hopefully get approval from the Planning Board,at which point they will abandon some or all of the Airbnb /VRBO units. Mr. Copelas asked if Mr. Becker is going through this process for two or three months of short term rentals.Mr. Becker responded that it would probably be until December.Attorney Quinn added that depending on legalities,it could be longer. 24. At the July 17,2019 public hearing, the Board discussed the dates that the listings were published and the dates that the units were first available to be rented. 25. At the July 17,2019 public hearing,Attorney Quinn raised a question as to whether the Ordinance was filled with the City Clerk on July 19 or July 16,2018.Planner Brennan Corriston noted that he had previously understood the date to have been July 19,but he had learned that the Ordinance was actually filed with the City Clerk on July 16. 26. At the July 17,2019 public hearing,no (0) members of the public spoke in favor of the petition and two (2) members of the public spoke in opposition to the petition. One member of the public who spoke in opposition,Jeff Cohen,urged the Board to deny the request to continue. Chair Duffy also read from one(1) email from Janice LeBel of 1 Chestnut Street,in opposition to the petition for 23 Summer Street specifically. In addition,Chair Duffy read from 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. The letters were from Richard Lindeman of 113 Federal Street,Lois Ferraresso of 315 Essex Street,and Meg Twohey of 122 Federal Street. City of Salem Board of Appeals October 2,2019 Project:23 Summer Street Page 5 of 7 27. At the July 17,2019 public hearing,there was a brief recess to allow Attorney Quinn and Mr. Becker time to confer about requesting to continue.After the recess,Attorney Quinn requested to continue the petition to the next regularly scheduled meeting,and the Board took up the request for a continuance.The Board voted three (3) in favor(Peter A. Copelas,Mike Duffy(Chair),and Jimmy Tsitsinos) and two (2) opposed (Rosa Ordaz and Jimmi Heiserman) to approve the motion. The Board,along with Planner Brennan Corriston and Attorney Quinn, discussed whether this constituted sufficient votes in favor to continue the hearing. The Board took a brief break for Brennan Corriston to review the Rules and Regulations, then returned.Mr. Corriston reviewed the Rules and Regulations of the Board: based on the rule that"[t]he concurring vote of at least four(4) members of the Zoning Board of Appeals shall be necessary in any action taken by the Board," the motion failed.After the break,Attorney Quinn was informed that the motion to continue failed. Mr.Becker had already left the meeting by this point,so there was another temporary recess for this hearing to allow Attorney Quinn time to reach Mr. Becker. Upon reopening the public hearing,Attorney Quinn noted that there was still a question regarding whether the Ordinance was filed on July 16 or July 19,which could affect whether some of the units would be approved.Attorney Quinn stated that he would like to seek clarification with the City Clerk regarding when the Ordinance was filed.There was substantial deliberation by the Board,including discussion of the definition of"engaged"and the unit numbers. The Board wondered whether a motion could be reconsidered. Brennan Corriston read from the Rules and Regulations that"Once a petition has been voted upon and the meeting adjourned;there shall be no reconsideration of a decision of the Board."Because the meeting was not adjourned, the Board could take a motion to reconsider if made by one of the parties who successfully voted against approving the motion to continue. 28. At the July 17,2019 public hearing,Jimmi Heiserman made a motion to reconsider the petition. The motion to reconsider passed,with four(4) votes in favor (Peter Copelas,Mike Duffy(Chair),Jimmi Heiserman,Jimmy Tsitsinos) and one (1) opposed (Rosa Ordaz). This opened the opportunity for the Board to vote to continue to the next meeting. There was some agreement about the need for more information. 29. At the July 17,2019 public hearing,Peter Copelas made a motion to continue the petition to the next regularly scheduled hearing on August 21,2019.The motion to continue passed,with four(4) votes in favor(Mike Duffy (Chair),Peter A. Copelas,Jimmi Heiserman,and Jimmy Tsitsinos) and one (1) opposed (Rosa Ordaz). 30. On July 18,2019,the City Council confirmed Paul Viccica as a regular member of the Board. This involved Mr.Viccica stepping down from his then-seat as an alternate to take over a regular member term to conclude on May 1,2022. 31. Before the August 21,2019 meeting,Attorney Quinn submitted two sets of new documents: a set of condominium documents which describe the combination of Units #1 and#3 into a single unit,and a packet of additional booking information from Airbnb.The Airbnb documentation lists the bookings for Units #1,2, 4, 5,and 6.The Airbnb documentation showed bookings made on the following dates, for the following units: Unit Bookin Date ates o St 1 July 23,2018 (August 5-10,2018) July 25,2018 (July 29-August 4,2018) Jul 26,2018 ul 26-29,2018 2 July 13,2018 Quly 28-August 3,2018) July 30,2018 (August 3-6,2018 4 1 July10,2018 (August 3-6,2018 City of Salem Board of Appeals October 2,2019 Project:23 Summer Street Page 6 of 7 5July 20,2018 Guly 22-28,2018 6 July 8, 2018 (July 27-30,2018) July 9,2018 (July 10-16,2018) July 10,2018 (July 21-24,2018) July 11,2018 (July 16-20,2018 32. On August 21,2019, only three Board members were in attendance: Mike Duffy (Chair),Jimmi Heiserman,and Paul Viccica. Three members out of the five-member Board constitutes a quorum (enough members to hold a meeting). However,per the Zoning Board of Appeals'Rules and Regulations,"ft]he concurring vote of at least four(4) members of the Zoning Board of Appeals shall be necessary in any action taken by the Board."As such,the Board could not vote to approve any petitions in the August 21 meeting. Petitioners were informed of this attendance situation in advance and were given the opportunity to submit requests to continue their petitions to the next regularly scheduled meeting on September 18,2019. In an email to Planner Brennan Corriston dated August 20,2019,Attorney Quinn submitted a request to continue 23 Summer Street to the September 18 meeting.This request was duly filed with the City Clerk on August 21,2019. In the meeting,the Board voted three (3)in favor(Paul Viccica,Jimmi Heiserman,and Mike Duffy (Chair)) and none (0) opposed to approve the motion to continue to the next regularly scheduled meeting. 33. At the September 18,2019 public hearing,Attorney Quinn discussed the petition and the new evidence that was provided. Attorney Quinn stated that they were withdrawing the petition for Unit 3, and only requesting special permits for Units 1,2,4,5, and 6. 34. At the September 18,2019 public hearing, the Board discussed the units,the rental dates,and the available dates of the Units.The Board found that Units 1,2, and 3 were not available to be rented before July 16,but that Units 4, 5,and 6 were available to be rented as of July 16,2018. 35. At the September 18,2019 public hearing,no(0) members of the public spoke in favor of the petition and three (3) members of the public spoke in opposition to the petition. 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, and the Petitioner's presentation and public testimony,makes the following findings: The property owner was engaged in the short-term rental of 23 Summer Street Units 4, 5, and 6 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 23 Summer Street Unit 1,2, or 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. 1. Social, economic and community needs are served by the proposal. The property offers safe, code- compliant housing. 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. City of Salem Board of Appeals October 2,2019 Project:23 Summer Street Page 7 of 7 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 four(4) in favor (Peter A. Copelas,Mike Duffy (Chair),Jimmi Heiserman,and Paul Viccica) and one (1) opposed (Rosa Ordaz) 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 three non-owner occupied short-term rental units in the multi-family house at 23 Summer Street, Units 4 5 and 6 subject to the following terms, conditions, and safeguards:* *The petition was originally advertised as written below.The Board decided to approve three out of the six units for which the special permit was originally applied,2�ummer Street Units 4,5, and 6. Original advertisement.• Petition of MIKE BECKER for a special permit per Section 15-6 (d) of the Salem Code of Ordinances to allow the continued operation of six non-owner occupied short-term rental units in the multi-family house at 23 SUMMER STREET(Map 26,Lot 463) (135 Zoning District). 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. A Certificate of Occupancy is to be obtained. 6. A Certificate of Inspection is to be obtained. 7. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including,but not limited to,the Planning Board. 4" 2" Z4Z Mike Duffy,, Board of Appe s A COPY OF THIS DECISION HAS BEEN FILED WITH THE PUNNING 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.