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boa_53-59_mason_street_and_38_commercial_street_-_stamped_decision 8.26.2020 CITY OF SALEM, MASSACHUSETTS . BOARD OF APPEALS �f 98 WASHINGTON STREET♦ SALEM,MASSACHUSETTS 01970 KIMBERLEY DRISCOLL 'ML:978-619-5685 MAYOR ` C1 August 26, 2020 i Decision 01) City of Salem Board of Appeals b C Petition of THE LONG GAME LLC for a variance per Section 4.1.1 Table ofDirnensional=- Requirements from minimum lot area per dwelling unit and a variance per Section 8.4.13 C ` Transitional Overlay Dist ct to allow minor construction within the no-construction buffer zone to construct 92 residential units above the existing commercial space at 53-59 MASON STREET (Map 26,Lot 90) and 38 COMMERCIAL STREET (Map 26,Lot 47) (NRCC Zoning District). A public hearing on the above Petition was opened on March 18,2020 pursuant to M.G.L Ch. 40A, § 11. No testimony was heard on March 18, 2020. The hearing was continued to April 15, 2020;continued to May 20, 2020;continued to June 17, 2020 (during which no testimony was heard); and continued to July 15,2020 and closed on July 15,2020 with the following Salem Board of Appeals members present: Peter A. Copelas, Mike Duffy (Chair),Rosa Ordaz,Paul Viccica, Carly McClain (Alternate), and Steven Smalley (Alternate).Jimmy Tsitsinos was absent on July 15. At the March 18, 2020 meeting, Peter A. Copelas,Mike Duffy (Chair), Carly McClain,Rosa Ordaz, and Steven Smalley were present;Jimmy Tsitsmos and Paul Viccica were absent. At the April 15, 2020 meeting, Peter A. Copelas,Mike Duffy (Chair),Rosa Ordaz, Steven Smalley, and Paul Viccica were present,as noted above; Carly McClain and Jimmy Tsitsinos were absent. On May 20, Peter A. Copelas,Mike Duffy (Chair), Carly McClain (Alternate),Rosa Ordaz, Steven Smalley (Alternate), and Paul Viccica were present;Jimmy Tsitsinos was absent. On June 17,Peter A. Copelas,Mike Duffy (Chair),Rosa Ordaz, Steven Smalley (Alternate), and Paul Viccica were present;Jimmy Tsitsinos was absent. Carly McClain arrived at the meeting after the hearing on 53-59 Mason Street and 38 Commercial Street. The petitioner seeks a variance per Section 4.1.1 Table of Dimensional Requirements of the Salem Zoning Ordinance from minimum lot area per dwelling unit and a variance per Section 8.4.13 Transitional Overlay District to allow minor construction within the no-construction buffer zone to construct 92 residential units above the existing commercial space at 53-59 Mason Street and 38 Commercial Street. Statements of Fact: 1. In the petition date-stamped January 29,2020, the petitioner requested a variance per Section 4.1.1 Table of Dimensional Requirements of the Salem Zoning Ordinance from minimum lot area per dwelling unit and a variance per Section 8.4.13 Transitional Overlay District to allow minor construction within the no-construction buffer zone to construct 92 residential units above the existing commercial space at 53-59 Mason Street and 38 Commercial Street. This petition also included a request for a special permit per Section 8.4.5 Uses to allow a multifamily residential use with commercial use on first floor. Page 1 of 4 City of Salem Board of Appeals August 26,2020 Project:53-59 Mason Street and 38 Commercial Street Page 2 of 4 2. The application was filed by Attorney Scott M. Grover representing petitioner and property owner The Long Game LLC. 3. The requested special permit for use per Section 8.4.5 is the jurisdiction of the Planning Board and not the Board of Appeals.Attorney Grover was informed of the situation and submitted a revised petition date-stamped February 5, 2020,with the same variance requests as originally requested but without the request for special permit.As noted in the Statement of Grounds/Hardship, "Presently there is a partially occupied two story red brick building located on the site having a total building area of roughly 50,000 square feet. The petitioner intends to preserve the building for commercial uses and construct two additional stories on top of that building containing 92 residential units." 4. The minimum lot area per dwelling unit in the NRCC district is 3,500 square feet. Depending on the implementation of possible affordable units and/or historic preservation-related density bonuses,up to 60 residential units would be allowed without this variance.With no such bonuses,40 residential units would be allowed. As such, this requested variance would allow 32 to 52 additional dwelling units on site. 5. The buffer-related variance is due to a requirement of the Transitional Overlay District, set forth in Section 8.4.13: `Buffer areas:A buffer zone is an area where no construction or destruction of land shall take place.A minimum buffer area of fifty (50) feet is required from any residential use, conservation use, or residentially zoned parcel. The buffer area must include landscaping to shield the abutting residential properties."The petitioner sought this variance "to allow a public walkway to be constructed and the existing parking area to be repaired." Construction would occur within the buffer zone but no structures would be built there. 6. The proposal is to preserve the existing structure at 53-59 Mason Street as commercial space and add additional stories containing 92 residential units. 7. The requested relief,if granted,would allow the petitioner to construct 92 residential units above the existing commercial space and to conduct minor construction within the no-construction buffer zone at 53-59 Mason Street and 38 Commercial Street. 8. 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, §18,and the Governor's March 15, 2020 Order imposing strict limitations on the number of people that may gather in one place, the March 18,2020 meeting of the Board of Appeals was slated to take place via conference call,with a public call-in option. However,it was determined that the meeting as planned would not meet the temporary requirements of the partially suspended Open Meeting Law, and as such,no testimony should be heard.As such, the meeting was held for the sole purpose of continuing all matters before the Board. 9. In the March 18,2020 meeting of the Board of Appeals, held remotely via public conference call, Chair Duffy described each application before the Board and noted that due to the unique circumstances,he would entertain a motion to continue all matters until the next regularly scheduled meeting on April 15,2020. The vote was four (4) in favor (Peter A. Copelas,Mike Duffy (Chair),Rosa Ordaz, and Steven Smalley) and none (0) opposed. 10. The April 15, 2020 meeting of the Board of Appeals was held remotely using the web conference platform Zoom. The meeting was also accessible via public conference call and Salem Access TV. 11. Prior to the April 15, 2020 meeting of the Board of Appeals,Attorney Grover informed planner Brennan Corriston that he withdrew from representing The Long Game LLC with respect to the instant petition. City of Salem Board of Appeals August 26,2020 Project:53-59 Mason Street and 38 Commercial Street Page 3 of 4 12. At the April 15, 2020 public hearing, civil engineer Scott Cameron,Peter Lutz and Pavel Espinal of The Long Game LLC,and architect Thad Siemasko began their presentation of the project. Mr. Cameron noted that this is a big project and that he expected a continuance. Mr. Cameron discussed the existing conditions and the plans for the site;Mr. Siemasko presented designs for the structure. Mr. Cameron noted that the project falls within Chapter 91 jurisdiction.The Board expressed that more information was needed regarding how the applicant reached the number of units as well as information about potential environment impacts and the amount of impervious area proposed. 13. At the April 15,2020 public hearing,Chair Duffy read two letters from the public: one from DSF Salem Flint LLC (developers of a neighboring residential development) expressing opposition and concerns about the ability to meet a showing of hardship; the other from Atomic Coffee Roasters and Essex County Collision (of 45 Mason Street) expressing concerns about the proposed project's impact on their operations. 14. At the April 15, 2020 public hearing,no (0) members of the public spoke in favor of the petition. Several individuals expressed concerns about the project including the number of units and the hardship. These individuals included Emily Udy of Historic Salem Inc.;David Zion and josh Solomon of DSF Salem Flint LLC (whose letter was read);and City Councillor Megan Riccardi. Councillor Riccardi asked for clarification regarding the design of the walking path. 15. At the April 15,2020 public hearing, the Board voted five (5) in favor (Peter A. Copelas,Mike Duffy (Chair), Rosa Ordaz, Paul Viccica, and Steven Smalley) and none (0) opposed to continue the hearing to the next regularly scheduled meeting on May 20,2020. 16. Prior to the May 20,2020 meeting,Attorney Miranda P. Gooding was contracted to represent the petitioner before the Board of Appeals. Attorney Gooding submitted new information before the May 20 meeting,including revised plans and elevations and a letter outlining the changes. The changes included a "Reduction in Variance Relief' due to the removal of 4 dwelling units; "Parking Reduction/Increase in Open Space," from 113 outdoor parking space to 92 spaces;and "Public Parking for Right of Way"including redesigned parking"along the new right of way" at Commercial Street. 17. Board member Carly McClain,who was absent at the April 15,2020 hearing on this petition, signed an affidavit of service on May 20,2020, certifying that she examined all evidence pertaining to 53-59 Mason Street and 38 Commercial Street which was distributed at the single missed session on April 15,2020,which evidence included an audio recording of the missed session. Ms. McClain submitted this certification prior to participating in the vote on this matter in the May 20,2020 public hearing. 18. At the May 20, 2020 meeting of the Board of Appeals,Attorney Gooding and the applicant team discussed the project and the changes made following the Board's comments in the last meeting. Robert Michaud with MDM Transportation Consultants discussed the traffic impact and train use. Attorney Gooding discussed the grounds for the variance and the determination of the number of units,including examining the site, trends in residential development, and the density of similar projects.There was more discussion between the Board members and the applicant team about the justification for the variance and about the project,including whether historic preservation and affordability bonuses would be sought. 19. At the May 20, 2020 public hearing,planner Brennan Corriston read an email comment submitted by Steve W. Haley of SWH Realty LLC, 43-45 Mason Street, expressing opposition to the project as proposed. 20. At the May 20, 2020 public hearing,no (0) members of the public spoke in favor of the petition and several expressed concerns. Emily Udy expressed appreciation for the Board's questions about City of Salem Board of Appeals August 26,2020 Project:53-59 Mason Street and 38 Commercial Street Page 4 of 4 density. Steven Sass asked about traffic impact and parking.Jane Okey expressed opposition due to the neighboring residential development. 21. At the May 20, 2020 public hearing,Chair Duffy noted that the Board would like more details about the requested number of the units and the merits of the variance request. He asked if the petitioners would like to continue;Mr. Cameron indicated that they would like to continue. The Board voted five (5) in favor (Peter A. Copelas,Mike Duffy (Chair),Rosa Ordaz,Paul Viccica,and Steven Smalley) and none (0) opposed to continue the hearing to the next regularly scheduled meeting on June 17;2020. 22. Via email to Mr. Corriston and the Board dated June 11, 2020,Attorney Gooding requested to continue the hearing from June 17,2020 to the meeting on July 15, 2020. The email and the continuance request form were filed with the City Clerk on June 15,2020. 23. At the June 17,2020 meeting of the Board of Appeals, Chair Duffy noted that the applicant requested to continue to the next regularly scheduled meeting. The Board voted five (5)in favor (Peter A. Copelas,Mike Duffy (Chair),Rosa Ordaz,Paul Viccica, and Steven Smalley) and none (0) opposed to continue the hearing to the next regularly scheduled meeting on July 15, 2020. 24. In an email to Mr. Corriston and the Board dated July 15,2020,Attorney Gooding stated in part, "In light of Board member comments at the last public hearing for this application,my client has decided to explore options for a smaller mixed-use project.Accordingly,we respectfully request that the above-referenced application be withdrawn without prejudice."This email was filed with the City Clerk on July 15,2020. 25. At the July 15, 2020 meeting of the Board of Appeals, Chair Duffy noted that the Board received a request to withdraw without prejudice. On the basis of the above statements of fact,the Salem Board of Appeals voted five(5)in favor(Steven Smalley, Paul Viccica, Rosa Ordaz, Mike Duffy (Chair), and Peter A. Copelas) and none (0) opposed to allow the applicant to withdraw the petition without prejudice. This application is withdrawn without prejudice. B Mike Du -, 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.