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boa_57_marlborough_road_-_stamped_decision_0 8.17.2020 f � r �1. CITY OF SALEM, MASSACHUSETTS 1 l BOARD OF APPEALS 98 WASHINGTON STREET SALEM MASSACHUSETTS 01970 r-a KIMBERLEY DRIscoLL TEL:978-619-5685 MAYOR August 17, 2020 Decision ] City of Salem Board of Appeals r? Petition of OSBORNE HILLS REALTY TRUST for variances per Section 4.1.1 Table of Dimensional Regzurements of the Salem Zoning Ordinance from minimum front, rear, and side yard setbacks and minimum lot width for each lot to be created on the parcel of land at 57 MARLBOROUGH ROAD (Map 9,Lot 1) (RC Zoning District), not exceeding forty-four (44)lots. A public hearing on the above Petition was opened on May 20,2020 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),Carly McClain (Alternate),Rosa Ordaz, Steven Smalley (Alternate), and Paul Viccica. The petitioner seeks variances per Section 4.1.1 Table of Dimensional Requirements of the Salem Zoning Ordinance from minimum front, rear, and side yard setbacks and minimum lot width for each lot to be created on the parcel of land at 57 Marlborough Road,not exceeding forty-four (44) lots. Statements of Fact: 1. In the petition date-stamped March 23, 2020, the petitioner requested variances per Section 4.1.1 Table of Dimensional Requirements of the Salem Zoning Ordinance from minimum front, rear,and side yard setbacks and minimum lot width for each lot to be created on the parcel of land at 57 Marlborough Road, not exceeding forty-four (44) lots. 2. 57 Marlborough Road is owned by Osborne Hills Realty Trust. The petitioner is Paul DiBiase, Trustee of Osborne Hills Realty Trust. 3. 57 Marlborough Road is a large parcel of land located in the Residential Conservation (RC) zoning district.The property is the site of a planned subdivision,known as Strongwater Crossing. 4. The proposal is to reduce the size of each of the lots to be created on the parcel of land at 57 Marlborough Road, up to forty-four lots. 5. According to the application submitted to the Board, the requested variances are "for the purpose of allowing a universally preferred amendment to a Cluster Residential Development Special Permit Plan that was approved by the City of Salem Planning Board... in 2006." Exhibit A notes that the variances are required "...to coincide with the Planning Board's desired step of approving a subdivision amendment that would create smaller lots for each lot in the Residential Conservation (RC) [zoning district] of the Osborne Hills subdivision. It is important to note that recently the Planning Board approved a Form B, Preliminary Subdivision Plan that created these smaller lots. They did this to indicate their interest in seeing this amendment move forward to a final plan."Exhibit A further notes that"Granting this relief will allow the Planning Board to create lots that are consistent with the lots that have been developed in earlier phases of the subdivision. In short,granting relief will make this a Page 1 of 7 City of Salem Board of Appeals August 17,2020 Project:57 Marlborough Road Page 2of7 better cluster subdivision by increasing the amount of open space,reducing the amount of paved roadway and reducing and enhancing the wetlands crossing." 6. As noted in Exhibit A, "The Salem Conservation Commission has also supported the work necessary to allow this amendment to take place,moving early to signal to the Planning Board and BOA their support for this amendment,thus expressing that the proposed plan greatly improves the impact of the development on the wetlands resource area." 7. Exhibit A presents several "benefits and advantages to the City of Salem,"including significantly more publicly accessible open space,reduced impact on wetlands, and decrease in paving. 8. Per Exhibit B, the variances are being requested "for each lot to be created on the parcel of land, which is the subject of this application pursuant to a Salem Planning Board Definitive Subdivision Plan or an amendment thereof,not exceeding a maximum of forty four (44) lots." 9. The variances being requested are from minimum depth of front yard,minimum depth of rear yard, minimum width of side yard, and minimum lot width. 10. As referenced in Exhibit A, Section 7.2.1 Cluster Residential Development-Purposes gives the Planning Board the authority to vary"the lot area and frontage requirements of Section 4.0."As such, those matters are not before the Board of Appeals. 11. The required and proposed dimensions are as follows: Required C Pro osed Required itt 1) Minimum depth of front yard ft 40 15 15 Minimum width of side yard (ft) 40 10 10 Minimum depth of rear yard ft 100 30 30 Minimum lot width (ft) 200 50 100 As the above table illustrates, the proposed dimensions are more in line with the requirements of the Residential One-Family (R1) zoning district than the Residential Conservation (RC) zoning district. Part of the Osborne Hills subdivision is located in the Residential One-Family(R1) zoning district. 12. The requested relief,if granted,would allow the petitioner to reduce the size of each of the lots to be created on the parcel of land at 57 Marlborough Road, not exceeding forty-four (44) lots, and would make it so that each of the lots created would fail to meet the requirements of the Residential Conservation (RC) zoning district for minimum front, side, and rear yard setbacks as well as minimum lot width. 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, 518, and the Governor's March 15, 2020 Order imposing strict limitations on the number of people that may gather in one place,the May 20,2020 meeting of the Board of Appeals was held remotely,via the online platform Zoom. 14. At the May 20, 2020 public hearing,Attorney Brian McGrail presented the proposal. He noted that the applicant is seeking this variance in concert with a process that has already commenced with the Planning Board and the City to modify the approved Strongwater Crossing cluster subdivision, resulting in changes to the existing 44 lots that are part of Phases 6 through 10 of this subdivision,in the Residential Conservation (RC) zoning district. Attorney McGrail noted the applicant is not seeking a variance for additional lots within the subdivision. He noted that the subdivision will consist of 130 to 131 single-family homes. Phases 1 through 5 consist of 86 lots in the Residential One- Family (R1) zoning district with homes that are either completed or well on their way.Attorney e ' City of Salem Board of Appeals August 17,2020 Project: 57 Marlborough Road Page 3 of 7 McGrail stated that the proposed modifications will allow the 44 lots in the Residential Conservation (RC) zoning district to be smaller so as to be proportionate with the 86 lots in the R1 district. He argued that the changes will result in "a superior final product" for the City,including a smaller environmental impact and the benefit of additional open space. The subdivision provides for 96 acres of open space for public use. 15. At the May 20, 2020 public hearing,Attorney McGrail explained that the petitioner has already appeared before the Planning Board and obtained a preliminary subdivision modification approval to reduce the size of the 44 lots. If the petitioner is successful in obtaining the variances sought before the Board of Appeals, the petitioner will apply for a definitive subdivision and special permit modification with the Planning Board. The petitioner anticipates such approvals by the Planning Board would be a condition of receiving the requested variance, and therefore has drafted a special condition. Attorney McGrail adds that the petitioner has met with other entities prior to submitting the application including the Salem Planning Department and Conservation Commission and that they preferred the proposal to the existing plan.Attorney McGrail read a finding by the Planning Board from their preliminary subdivision approval: "The preferred layout for the subdivision of this parcel shall meet the requirements of the Cluster Residential Development Special Permit,because such a layout will promote more efficient use of land in harmony with its natural features and will protect and promote the health, safety, convenience and general welfare of the inhabitants of the city."He referenced language in Section 7.2.1 of the Zoning Ordinance in the cluster subdivision bylaw which allows the petitioner in this situation to apply to the Planning Board to except the plan from lot area and frontage requirements of Section 4.0. This section does not allow the Planning Board to vary other dimensional requirements,which is why the petitioner is now before the Board. The petitioner is seeking relief from the required front, side, and rear yard setbacks in the Residential Conservation (RC) zoning district to be consistent with those in the Residential One-Family(R1) zoning district. He noted that without the requested variances,it would not be possible to build on the smaller proposed lots in the Residential Conservation (RC) zoning district because of the dimensional setback requirements of the Residential Conservation (RC) zoning district. He noted that they were able to meet the setback requirements in the R1 district. He reviewed the setback variance requests and added that they are requesting relief from required minimum lot width to allow 50 feet instead of the required 200 feet. 16. At the May 20, 2020 public hearing,Attorney McGrail addressed the variance criteria. He explained the property is unique due to its size—one of the largest cluster subdivisions on the North Shore— the presence of National Grid transmission lines (transmission lines are not owned by the applicant and present a challenge in developing the property), topography, and a significant amount wetlands. He noted that the challenges of the National Grid lines can be minimized by repositioning the roadway and reconfiguring the lots to be smaller. Repositioning the roadway will result in less disruption to the wetlands and topography and will increase the amount of publicly accessible open space.Attorney McGrail argued that literal enforcement of the ordinance would create a substantial hardship: the power lines,wetlands, and topography inhibit the development of the property consistent with the goals of the Ordinance. If the required setbacks were enforced for these lots in the RC district,it would be difficult to develop these lots. He further argued that the desired relief may be granted without substantial detriment to the public good or nullifying the intent of the district. By granting the relief, he argued there is not only no detriment to the public good,but there will be significant benefits to the community,including an increase in the open space from 96 acres to approximately 122 acres that will be open to the public and residents of Salem as well as a reduction in the amount of roadway. City of Salem Board of Appeals August 17,2020 Project:57 Marlborough Road Page 4 of 7 17. At the public hearing, Chris Mello presented graphics showing of Phases 1 through 5 of the project. Mr. Mello demonstrated the proposed changes to the 44 lots, as well as changes in the roadways and crossings. Mr. Mello explained that some lots on Diandra Drive will be eliminated entirely as part of the changes, and a new entry is proposed to be created in Phase 6 through 10 at the end of Osborne Hill Drive. 18. Mr. Copelas asked where and how the public can access the open space.Attorney McGrail said there are multiple access points all throughout the subdivision,and that the Planning Board special permit requires the petitioner maintain the trails and maintain the open space as passive recreational space for the public. 19. Mr. Copelas asked for clarification regarding the elimination of lots on Diandra Drive.Mr. Mello explained it is a function of putting the smaller 80-foot-frontage lots on Strongwater Drive.There is enough frontage to get the 44 lots, so they no longer need to build on Diandra Drive if the variance is approved. Mr. Copelas asked if there is something that prevents building on Diandra Drive, and Mr. Mello stated that it is merely no longer needed if the lots are allowed to be modified. The result would be more open space that is connected,whereas it was previously bisected. Mr. Copelas asked if there could be a special condition that prohibits the development of anything previously designated as Diandra Drive. The petitioner was in agreement. Attorney McGrail referenced the previously mentioned suggested special condition,which specifically limits the development portion in question to 44 lots. 20. At the May 20,2020 public hearing,no (0) members of the public spoke specifically in favor of or in opposition to the petition. There were questions about the Strongwater Crossing development, including the connection of Strongwater Drive to Osborne Hill Drive; open space and trail maintenance; the timeline for construction; and the process of turning roads over to the City. These questions were from Chet Cusick of 27 Osborne Hill Drive and Philip Picariello of 26 Osborne Hill Drive. 21. Mr. Copelas asked about ownership with respect to the open space.Attorney McGrail explained that the open space is owned by the lots within the subdivision and described the Planning Board 2006 decision in more detail. 22. The Board and Attorney McGrail discussed the proposed special condition limiting the number of lots. The proposed condition from Attorney McGrail reads as follows: "This Variance is conditioned upon the Applicant obtaining an approval of an amendment or modification from the City of Salem Planning Board of the existing 57 Marlborough Road/Osborne Hills Definitive Subdivision, Cluster Residential Development Special Permit, and Wetlands District Special Permit Decision dated July 27, 2006 and the plans referenced therein or related thereto creating smaller lots than those currently approved in the Residential Conservation Zoning District,not to exceed a total number of forty four (44) lots, as contemplated in this decision. This Variance shall be deemed to have been exercised, for the benefit of each of the lots created by the City of Salem Planning Board's amendment or modification, upon the recording of this decision at the Essex South Registry of Deeds and upon the Applicant's filing of the application with the City of Salem Planning Board for the amendment or modification as required above. Furthermore, the size, shape and location of the smaller lots finally approved and created by the City of Salem Planning Board may vary from those shown on the plans submitted as part of the Board of Appeals application as long as the final number of lots is not greater than forty four (44)." f � City of Salem Board of Appeals August 17,2020 Project: 57 Marlborough Road Page 5 of 7 Chair Duffy noted that in the final sentence,language should be added stating that the lots could change or vary so long as they were not going to trigger the need for additional zoning relief beyond what is granted in the variance. Attorney McGrail indicated his agreement. There was some discussion about whether to continue the petition,with the special condition language not yet finalized.Mr. St. Pierre noted that the City Solicitor has seen the plans and is aware of some of the changes that might occur. He said he would be comfortable with leaving it up to the Solicitor to finalize the language of the condition. There was a brief discussion regarding the Planning Board process and the working out the final language of the special condition. Mr. Corriston raised the language suggested by Chair Duffy regarding triggering additional zoning relief, and Attorney McGrail stated he thinks the language should be added. 23. At the May 20,2020 public hearing,Chair Duffy discussed the variance criteria, noting that the Statement of Hardship addresses these criteria and stating that he thinks that it is a good argument that the changes are to the benefit of the public. Chair Duffy noted that the final verbiage of the special condition would be worked out by the Planning Department, the City Solicitor, and the applicant. 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 size of the lot, the topography, the presence of a significant amount of wetlands, and the presence of National Grid transmission lines on the lot make it so that the lot is unique and is affected by special conditions and circumstances. 2. Literal enforcement of the provisions of the Ordinance would involve substantial hardship to the applicant as the size and setback requirements of the Residential Conservation (RC) zoning district, combined with the conditions affecting the land,would negatively affect the development of the subject land. 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. Indeed, the changes resulting from the granting of the requested relief would be to the benefit of the public, such as the increase in the amount of publicly accessible open space and the reduced amount of roadway. On the basis of the above statements of fact and findings, the Salem Board of Appeals voted five (5) in favor (Paul Viccica,Rosa Ordaz, Carly McClain, Mike Duffy(Chair), and Peter A. Copelas) and none (0) opposed to grant the requested Variances per Section 4.1.1 Table of Dimensional Requirements of the Salem Zoning Ordinance reducing the minimum front, rear, and side yard setbacks and reducing the minimum lot width for each lot to be created on the parcel of land at 57 Marlborough Road to be as follows: City of Salem Board of Appeals August 17,2020 Project:57 Marlborough Road Page 6 of 7 Allowed Per Variances Minimum depth of front yard (ft) 15 Minimum width of side yard (ft 10 Minimum depth of rear yard (ft) 30 Minimum lot width ft 50 The grant of the requested variances is 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 other structures in the subdivision. 6. A Certificate of Occupancy is to be obtained. 7. A Certificate of Inspection is to be obtained. 8. Petitioner shall obtain street numbering from the City of Salem Assessor's Office and display such numbers so as to be visible from the street. 9. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including,but not limited to, the Planning Board. 10. All construction shall be done per the plans and dimensions submitted to and approved by this Board. No change, extension,material corrections,additions, substitutions, alterations, and/or modification to an approval by this Board shall be permitted, unless allowed pursuant to the terms or conditions stated herein,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. Special Conditions: 1. The lots located along Diandra Drive that were designated for development in previous applications for this proposal shall not be developed. 2. This Variance is conditioned upon the Applicant obtaining an approval of an amendment or modification from the City of Salem Planning Board of the existing 57 Marlborough Road/Osborne Hills Definitive Subdivision, Cluster Residential Development Special Permit, and Wetlands District Special Permit Decision dated July 27, 2006 and the plans referenced therein or related thereto creating smaller lots than those currently approved in the Residential Conservation (RC) zoning district,not to exceed a total number of forty four (44) lots, as contemplated in this decision. This Variance shall be deemed to have been exercised, for the benefit of each of the lots created by the City of Salem Planning Board's amendment or modification, upon the recording of this decision at the Essex South Registry of Deeds and upon the Applicant's filing of the application with the City of Salem Planning Board for the amendment or modification as required above. Furthermore, the size, shape and location of the smaller lots finally approved and created by the City of Salem Planning Board may vary from those shown on the plans submitted as part of the Board of Appeals application as long as the final number of lots is not greater than forty four (44) and as long as no additional zoning relief from the Board of Appeals is required as a result of such changes. City of Salem Board of Appeals August 17,2020 Project: 57 Marlborough Road Page 7of7 Mike Dut� Chair 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.