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21 BARCELONA AVENUE - BUILDING JACKET
13vjrel�l a CITY OF SALEM9 MASSACHUSETTS . UF t( S OrFICEA Is BOARD OF APPEAL �1LER 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 STANLEY J. LISOVICZ, JR. TELEPHONE: 978-745-9595 ZOOS AUG MAYOR FAX: 976-740-9846 UO 22 p 2. OI DECISION ON THE PETITION OF PATRICIA PITREAU REQUESTING AN ADIMISTRATIVE RULING FOR THE PROPERTY LOCATED AT 21 BARCELONA AVENUE R-1 A hearing on this petition was held on August 9 2005 with the following Board Members present: Nina Cohen, Chariman, Richard Dionne, Nicholas Halides, Bonnie Belair and Edward Moriarty. Notice of the hearing was sent to abutters and others and notices of the hearing were published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. Petitioner is requesting an Administrative Appeal of the Building Inspectors decision on July 6, 2005 not to issue a cease and desist order on permit#558-05 for the property located at 21 Barcelona Avenue in an R-1 zone. After hearing the evidence the Board of Appeal makes the following findings of fact: 1. Petitioner Patricia Pitreau resides at 18 Barcelona Avenue in Salem. 2. On June 22, 2005, Ms. Pitreau requested that the City of Salem Building Inspector Thomas St. Pierre issue a cease & desist order under MGL.c 40A, Sections 7 & 8 to stop construction of a new home on the property at 21 Barcelona Ave. As grounds for her request, she contends that the lot at 21 Barcelona Ave, having an area of 7,493 square feet is nonconforming in size. It is uncontested that the lot is located in an R-1 zoning district where the minimum lot size requirement is 15,000 square feet. 3. On July 6, 2005, Mr. St. Pierre notified Ms. Pitreau that he would not issue a cease & desist order on building permit #558-05, which authorized the owner of 21 Barcelona Avenue to commence work on building a single-family home on the lot. 4. Ms. Pitreau subsequently appealed Mr. St. Pierre's decision to the Zoning Board of Appeal and a hearing was held on August 9, 2005 at which Ms. Pitreau was represented by Leonard Femino, Esq. of Alexander& Femino, One School St. Beverly, Ma: and Blanche Francullo, the owner of 21 Barcelona Avenue was represented by John Keilty, Esq. of 40 Lowell Street, Peabody, Ma. 5. Blanche Francullo through her attorney confirmed that she and her late husband acquired the properties at 19 and 21 Barcelona Ave. in the late 1950's. The two properties were held in common ownership by the Francullo family from their acquisition to the present day. At the present time, a developer, Patrick Chasse, has acquired an option to purchase the property at 21 Barcelona Avenue. I DECISION OF THE PETITION OF PATRICIA PITREAU REQUESTING AN ADMINISTRATIVE RULING FOR THE PROPERTY LOCATED AT 21 BARCELONA AVENUE R-1 page two 6. Ms. Francullo contends that the doctrine of merger under which adjoining lots held in common ownership are considered one lot for zoning purposes, does not apply to her property. In support of her argument, Ms. Francullo argues that merger only applies to adjoining lots when they are both nonconforming in area. Her property at 19 Barcelona Ave. which comprises of 17,226 square feet could not, she contends have merged with the adjoining property at 21 Barcelona Ave, which contains 7,493 square feet and is admittedly nonconforming in area. Therefore, based on the fact and on evidence presented, the Board of Appeals voted 3 in favor to 2 in opposition to uphold the Building Inspector decision with regards to 1 he property located at 21 Barcelona Avenue. Nina Cohen, Chairman Board of Appeal 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 after the date of filing of this decision in the office of the City Clerk. Pursuant to 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 that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of Title. Board of Appeal CITY OF SALEM9 MASSACHUSETTS BOARD OF APPEAL CI I OF 'SALE►4, MA 120 WASHINGTON STREET, 3RD FLOOR CLERKS OFFICE SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 MAYOR FAX: 978-740-9848 10US AUG 2b A 8: 44 DECISION OF THE BUILDING INSPECTOR REFUSING TO ISSUE A STOP-WORK ORDER AND REVOKE A BUILDING PERMIT ISSUED FOR THE PROPERTY LOCATED AT 21 BARCELONA AVENUE R-1. A hearing on this petition was held on August 9, 2005 with the following Board Members present : Nina Cohen, Chairman, Richard Dionne, Bonnie Belaire, Edward Moriarty and Nicholas Helides . Notice of the hearing was sent to abutters and others and notices were published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. Petitioner, Patricia A. Pitreau, is requesting that this Board overturn a Decision of the Building Inspector denying her request for issuance of a stop-work order and for revocation of a building permit issued for the property located at 21 Barcelona Avenue, in an R-1 Zoning District, and for enforcement of the zoning ordinance. The basis for Petitioner' s request is her contention that 21 Barcelona Avenue cannot be a legally buildable lot for the reason that is undersized and that it merged by operation of law either with the adjacent lot at 19 Barcelona Avenue or with the other adjacent lot at 42 Ravena Avenue. The Petitioner filed her request for issuance of a stop-work order and for revocation of the building permit on June 22 , 2005 . The Building Inspector responded in writing on July 6, 2005, denying Petitioner' s request. The Petitioner filed her appeal to this Board on July 12, 2005 . Therefore, this appeal was timely filed. J The Board of Appeal, after careful consideration of the evidence, makes the following findings of fact : 1. In the 1950s Blanche E. Francullo and her late husband, Michael A. Francullo, purchased six (6) small but (then) buildable lots . These were Lots 325, 326, 327, 328, 329 and 330 as shown on plan no. 11802-E, drawn by Thomas A. Appleton, Civil Engineer, dated December 6, 1928, as modified and approved by the Land Court, filed in the Land Court Registration Office, a copy of a portion of which is filed with Certificate of Title 7179 in said Registry. These six (6) lots are recognizable today as follows: 2. Lots 325, 326 and 327 comprise the parcel now known and numbered as 19 Barcelona Avenue, containing 17, 226 square feet of land, also appearing as Lot 03 on Assessor' s Map 4 . 3. Lots 329 and 330 comprise the parcel now known and numbered as 42 Ravena Avenue, containing 13 , 200 square feet of land, also appearing as Lot 17 on Assessor' s Map 4 . 4. Lot 328 is now known and numbered as 21 Barcelona Avenue, containing 7, 493 square feet, also appearing as Lot 29 on Assessor' s Map 4 . S. All three of these parcels are zoned R-1 Residence. The history of zoning in this district is as follows : (i) From 1965 through mid-1969, the minimum required area for a buildable lot was 5, 000 square feet. Thus, all three of the Francullo parcels were legally buildable lots . (ii) In July of 1969 the minimum required area for a buildable lot was increased to 7, 000 square feet, where it remained until April of 1977 . Thus, all three of the Francullo parcels remained legally buildable lots . (iii) In April of 1977 the minimum required area for a buildable lot was increased to 15, 000 square feet, where it remains to date. Under this standard, only 19 Barcelona Avenue would be considered a legally buildable lot. 6. The house that presently occupies 19 Barcelona Avenue was completed in or prior to 1959 . Thus, 19 Barcelona Avenue always was a legally buildable lot, and is today a developed, conforming lot. 7 . In or prior to 1974, the parcel known and numbered as 42 Ravena Avenue was conveyed out to the Francullos' son. It is presently owned by a neighbor who has built a single-family home on the property. Thus, 42 Ravena Avenue is today a legally developed nonconforming lot. 8. The lot which is the subject of these proceedings, 21 Barcelona Avenue, remains undeveloped. Since it contains only 7 , 493 square feet of land, it is nonconforming under the present zoning which took effect in April, 1977 . 9. Inasmuch as 42 Ravena Avenue was already developed and also was not held in common ownership with 21 Barcelona Avenue in April of 1977 when the minimum zoning required for a buildable lot was increased from 7, 000 square feet to 15, 000 square feet, it could not and did not merge with the subject lot . 10. 19 Barcelona Avenue was held in common ownership with 21 Barcelona Avenue for more than five years as of April of 1977 when the minimum zoning required for a buildable lot was increased from 7 , 000 square feet to 15 , 000 square feet . For this reason, the petitioner argues, 21 Barcelona Avenue merged into 19 Barcelona Avenue in April of 1977, by operation of Mass .Gen.L. c. 40A, sec . 6 (fourth paragraph, first sentence) provides that: Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage. 11. Also see, to the same effect, Salem Zoning Ordinance, Article VIII, Section 8-2 , which provides that (I) f two (2) or more lots, or combinations of lots and portions of lots, with continuous frontage in single ownership are of record for more than five (5) years at the time of adoption of this ordinance, and if all or part of the lots do not meet the requirements for lot width and area as established by this ordinance, the lands involved shall be considered to be an undivided parcel for the purpose of this ordinance, and no portion of said parcel shall be used or sold which does not meet lot width and area requirements established by this ordinance, (n) or shall any division of the parcel be made which leaves remaining any lot with width or area below the requirements stated in this ordinance. 12. On or about December 22 , 2004 the Building Inspector issued a Building Permit for 21 Barcelona Avenue. 13. The Building Inspector has taken the position that 21 Barcelona Avenue is a grandfathered, legally buildable, nonconforming lot, notwithstanding the above-quoted provisions of law, because: (i) at the time of the alleged merger, April 1977, 42 Ravena Avenue was already a legally developed, nonconforming lot, and it continues to exist as such today; and (ii) at the time of the alleged merger, 19 Barcelona Avenue was already a legally developed, conforming lot, and it continues to exist as such today; wherefore (iii) 21 Barcelona Avenue did not merge with either 19 Barcelona Avenue or 42 Ravena Avenue. 14. Blanche E. Francullo, the owner of both 19 and 21 Barcelona Avenue, agrees with the Building Inspector, and contends that there is no legal precedent whereby a lot that was already legally developed at the time of the relevant zoning change would absorb, through merger, an abutting, undersized, undeveloped lot . Therefore, argues Ms . Francullo, the Building Permit for 21 Barcelona Avenue was lawfully issued, and the Building Inspector' s Decision should be upheld. 15. The Petitioner, Patricia A. Pitreau, contends that nothing in the state statute or in the local zoning ordinance provides that the question of merger depends upon the condition of the lots as developed or undeveloped. The Petitioner contends that the above- quoted provisions of law should be read and applied literally and that, under a literal application of the law, 21 Barcelona Avenue merged into 19 Barcelona Avenue in April of 1977 , wherefore the Building Permit for 21 Barcelona Avenue was unlawfully issued, and the Building Inspector' s Decision should be overturned. WHEREFORE, on the basis of the foregoing facts and law, the Board voted as follows on the Petition to Reverse the Building Inspector' s Decision: Richard Dionne: Yes; Edward Moriarty: Yes; Nina Cohen: Yes; Nicholas Helides : No; Bonnie Belaire: No. Since four (4) affirmative votes are required to reverse the Building Inspector' s Decision, the Petition fails . PETITION DENIED August 2005 Nina Cohen, Charnl&n i n� �c�� Board of Appeal 1 C:\FRANCULLO, BLANCHE\FranculloDecision.rtf CI I Y OF SALEM, MA CITY OF SALEM, MASSACHUSETTS CLERK'S OFFICE • • BOARD OF APPEAL 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 1005 MAR - STANLEY J. U80VICZ, JR. TELEPHONE: 978-745-9595 2 '4 IQ 46 MAYOR FAX: 978-740-9846 DECISION ON THE PETITION OF PATRICIA PITREAU REQUESTING AN ADMINISTRATIVE RULING FOR THE PROPERTY LOCATED AT21 A (...BARCELONA AVENUE R-1 A hearing on this petition was held on February 16,2005 with the following Board Members present:Nina Cohen Chairman,Richard Dionne, Bonnie Belair,, Edward Moriarty and Nicholas Helides Notice of the hearing was sent to abutters and others and notices of the hearing were published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. Petitioner is requesting an Administrative Appeal of the Building Inspectors ruling that lot 328 is a buildable lot for the property located at 21 Barcelona Avenue located in an R- I zone. The Board of Appeal,after careful consideration of the evidence and after reviewing the plans at the hearing, makes the following findings of fact: 1. Petitioner Patricia Pitreau of 18 Barcelona Ave., Salem filed a petition on February 4, 2005 seeking an administrative appeal of a decision of the Building Commissioner regarding the lot at 21 Barcelona Ave. The Property owner, Blanche Francullo,appeared at the hearing represented by John Keilty, Esq. of 40 Lowell Street in Peabody. 2. According to the petition,the decision from which she sought appeal was the ruling by the Building Commissioner for the City of Salem that the property is a buidable lot although it is not sufficient in size to meet the current requirement relating to required square footage. Petitioner fiuther states that the property meets no exceptions to the requirement under the zoning ordinance or by state statute. 3. Petitioner was joined in her petition by eleven resident property owners on Barcelona Avenue and Ravenna Street, and by Ward Councillor Leonard O'Leary,who is also a resident of Barcelona Street. 4. The followings facts are found by the Zoning Board. In May 2001 James Noble, a predecessor in interest, sought a variance to subdivide the property and variances from frontage and dimensional setbacks to construct a single family residence on the property. This petition was withdrawn without prejudice in October 2001. In June 2004, Mr. O'Leary sought a written opinion from the Building Inspector whether the property had merged for purposes of zoning law with an adjoining lot also owned by the Francullo family. Mr. St. Pierre,the Building Commissioner,stated that he determined that no merger had occurred, applying standard policy regarding merger doctrine as he understood such policy DECISION OF THE PETITION OF PATRICIA PITREAU REQUESTING AN ADMINISTRATICE APPEAL FOR THE PROPERTY LOCATED AT 21 BARCELONA AVENUE R-1 page two to be applied by the Building Department. On February 27,2004,Mr. St. Pierre issued a letter stating the he had determined that the property was a buildable lot. On December 22,2005,the Building Commissioner issued a building permit to Mrs. Francullo based on a permit application and a set of plans,although the lot size was incorrectly given as 22,400 square feet on the permit application.Work commenced. on lot clearing in January 2005. 5. At the hearing before the Zoning Board,Mrs. Fancullo argued that the neighbor's appeal should be denied on the ground that they had an opportunity to appeal the granting of time building permit and failed to make a timely appeal pursuant to M.G.L.Chapter 40A, Section 7. 6. The neighbors said they believe that a building permit would not issue until the Board of Appeal held a hearing on the issue of whether the lot was buildable. This belied was based on the prior history of the property. They also argued that they did not have notice of the issuance of the building permit,although they were aware that the land was being cleared,and they did not know of the Building Commissioner's determination in February 2004 that the property was buildable. 7. The Zoning Board found that the appeal from the granting of the building permit was not timely,or in the alternative,that the determination by the Building Commissioner that the lot was not merged should stand. Therefore,base on the fact and on evidence presented,the Board make a motion to uphold Building Commissioners' Thomas St. Pierre decision for the property located at 21 Barcelona Avenue with a vote of 0 in favor and 5 to deny the petitioners appeal. ADMINISTRATIVE RULING DENIED February 16,2005 n Nina Cohen, Chairman Board of Appeal A COPYOF THIS DECISION HAS BEEN FILED WITII 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 after the date of Sling of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11. The Variance or Special Permit granted herein shall not take effect unit a copy of the decision bearing the.Certificate of the City Clerk. that 20 days have elapsed an no appeal has been filed, or that,if such appeal has been filed,that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of Title. O n O - �— 00 O r� �� M Y"f.,.. CC..77 c iy i 00 EEtt % tt i i fi F i A t��F� � ?f O 75 12*0p- 00 60-5 16 3 .t `i2 ;Iift� t8d leans' ' aai t m aa18t4 lin y0k - O fYa P'vs^ I l ` .. p� Fz� � r; CO r a 4 BA �a�i§��n. — (� ,tr i O 53 �P let � Im gf,r o :! x st3 W 04 C 1.5 4 =4 n 3F �M? y:. 71N ` M �t o ii � e 00 (—\6 CClaOr "ii, o 0 O 0 6' t�yTd +� Ll ' . i sl t:.---, 7 � , E..oa�is°ns�d+Iu v is i .�. - d . SL t� IR a§ 3a k ' 5 k+ im`s n azvtuc � baa no-�a a t 0 CITY OF SALEM9 MASSACHUSETTS z PUBLIC PROPERTY DEPARTMENT a. 120 WASHINGTON STREET, 3RD FLOOR egg SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 EXT. 380 MAYOR FAX: 978-740-9646 February 3, 2005 Patrick Chasse 14 Cleveland Street Salem, Ma. 01970 RE:-,21.Barcelona Avenue, Dear Pat: This letter is to inform you that an Administrative Appeal of my zoning decision has been filed with the Salem Zoning Board of Appeals. The petition filed challenges my designation of lot 328, 21 Barcelona is a buildable lot. The petitioner has used the lot of 328. For the record, 21 Barcelona Ave is Map 4, Lot 0029 in the City's Assessors record. The petition has been advertised and scheduled hearing for February 16, 2005 at 120 Washington Street. If you have any questions, please contact me directly. Sincerely, (zzr� Thomas St. Pierre Zoning Enforcement Officer Cc: Jim Gilbert Beth Rennard Steve Lovely CO CITY OF SALEM, MASSACHUSETTS ` PUBLIC PROPERTY DEPARTMENT a q. �AQ�MMgi 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 EXT. 380 MAYOR FAX: 978-740-9846 December 15, 2004 CO, . Steven Lovely, Esquire 14 Story Street Salem, Ma. 01970 RE: 21 Barcelona Street Dear Mr. Lovely: This Department received some complaints regarding my determination of 21 Barcelona Street as a grandfathered buildable lot. I have reviewed the history of 19,21 Barcelona and 42 Ravenna. At the time 42 Ravenna was constructed, it was a legal, nonconforming lot, 19 Barcelona exists today as a legal conforming lot. Therefore, 21 Barcelona has not merged with either 19 Barcelona or 42 Ravenna. Once again, it is my opinion that 21 Barcelona Avenue is a legal, grandfathered, nonconforming, buildable lot. Thank you for your p4tien s in this matter. Sincerely, I)Ivr2t�a Thomas St. Pierre Building Commissioner cc: Kate Sullivan, Mayors Office Councillor O'Leary r . f CITY OF SALEM9 MASSACHUSETTS j w PUBLIC PROPERTY DEPARTMENT :K y 120 WASHINGTON STREET, 3RD FLOOR fl �'4ne SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 EXT. 380 MAYOR FAX: 978-740-9846 i F February 27, 2004 To Whom it May Concern RE: 21 Barcelona Avenue According to our records, it is determined that 21 Barcelona Avenue (Map 4) Lot 29 containing approximately 7493 square Feet lot size and 53 feet of frontage, is a grandfathered buildable lot. Since- Iy, Thomas St. Pierre Acting Zoning Enforcement Officer a �tCitp of *arem, Aiamwbuoettg(Office of the CityCouncil CCitp i0atf COUNCILLORS-AT-LARGE LEONARD F. O'LEARY WARD COUNCILLORS 2004 PRESIDENT 2004 THOMAS H. FUREY DEBORAH E. BURKINSHAW LUCY CORCHADO KEVIN R. HARVEY CITY CLERK MICHAEL SOSNOWSKI JOAN B. LOVELY JEAN M. PELLETIER ARTHUR C. SARGENT, III LEONARD F. O'LEARY MATTHEW A. VENO MICHAEL BENCAL JOSEPH A. O'KEEFE, SR. June 17, 2004 Mr. Thomas St. Pierre Building Inspector City of Salem Salem, MA 01970 Dear Mr. St. Pierre: It has been brought to my attention by a constituent that the lot at 21 Barcelona Avenue had previously merged with the adjacent lot map 4 lot 0017. It should also be noted the lot came before the Board of Appeal although it was withdrawn. Please investigate this matter and I request a reply to this matter. Very truly yours, LEONARD F. O'LEARY 7 COUNCIL PRESIDENT & WARD 4 COUNCILLOR SALEM CITY HALL • 93 WASHINGTON STREET 9 SALEM, MA 01970-3592 • WWW.SALEMCOUNCIL.COM '4 C�oJ b V0 'D� w� r (TO PLAINTIFF'S ATTORNEY: Please Circle Type ofAction Involved: - TORT,-. MOTOR VEHICLE TORT CONTRACT - EQUITABLE RELIEF -(OTHERI) COMMONWEALTH OF MASSACHUSETTS ESSEX,ss. SUPERIOR COURT CI V I�-ACTION Ne 6 o = ......katriciaA..R.iheau.and.Je4az.M,.Aiamomt..........................................................Plaiatiff(s) Y y V. Nina Cohen,Bonnie Belair, Edward Moriarty,Richard Dionne v` -N and Nicholas Helides,as they are members of the Zoning Board v .....o£.ApWalsoftheGityo£•Saleta,-Massachusetts.............................................. Defeijdant(s) � u z . o r E SSUMMONS V C 0 .o To the t-17111, rle'-.N o f v r L a You are hereby summoned and required to serve upon Patricia A. Pitreau IaintifT whose address is 18 Barcelona Avenue,Salem, MA 01970 E P an answer to the E o A complaint which is herewith served upon you,within 20 days after service of this summons upon you,exclusive of the $ day of service. If you fail to do so,judgment by default will be taken against you for the relief demanded in the complaint.You are also required to file your answer to the complaint in the office of the Clerk of this court at o � T9 Salem either before service upon plaintif lama ons)or within a reasonable time thereafter. Ao _c Unless otherwise provided by Rule 13(a),your answer must state as a counterclaim any claim which you may a 3 have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim or you will thereafter be barred from making such claim in any other action. Barbara J. Rouse d WITNESS, Esquire,at Salem,the c `3 day of , in the year of our Lord two thousand T y F.. O 2. d z U z � W n (J Q F W u u Jerk i-- E O 9 z a NOTES: 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved,the names of all defendants should appear in the caption.If a separate summons is used for each defendant,each should be addressed to the particular defendant. COMMONWEALTH OF MASSACHUSETTS Essex, SS Essex Superior Court Patricia A. Pitreau and Civil Action No. Jayne M. Diamont, Plaintiffs vs. ) Nina Cohen, Bonnie Belair, Edward Moriarty ) Richard Dionne and Nicholas Helides, as they ) are members of the Zoning Board of Appeals of ) the City of Salem, Massachusetts,Defendants ) COMPLAINT A. Introduction I. This is an appeal from the Zoning Board of the City of Salem, Massachusetts(hereinafter the `Board') wherein the Board exceeded it's authority by upholding a decision of the Building Commissioner of the City of Salem who held that the lot of land at 21 Barcelona Avenue is a legal, grandfathered, non-conforming, buildable lot. B. P ies 2. The Plaintiff, Patricia A. Pitreau,is a natural person residing at 18 Barcelona Avenue, Salem, Massachusetts, a direct abutter of the subject locus, and is a person aggrieved. 3. The Plaintiff, Jayne M. Diamont, is a natural person residing at 42 Ravena Avenue, Salem, Massachusetts, a direct abutter of the subject locus, and is a person aggrieved. 4. The Defendant, Nina Cohen, is a member of the Board and resides at 22 Chestnut Street, Salem, Massachusetts. 5. The Defendant, Bonnie Belair, is a member of the Board and resides at I I3 Federal Street, Salem, Massachusetts. 6. The Defendant, Edward Moriarty, is a member of the Board and resides at 29 Winter Island Road, Salem, Massachusetts. 7. The Defendant, Richard Dionne, is a member of the Board and resides at 23 Gardner Street, Salem, Massachusetts. 8. The Defendant,Nicholas Helides, is a member of the Board and resides at 20 Central Street, Salem, Massachusetts. C. Jurisdiction 9. The Court has jurisdiction to hear this matter pursuant to Massachusetts General Laws, Chapter 40A, Section 17. D. Facts 10. On or about December 22, 2004,the Building Commissioner issued a foundation permit for the construction of a foundation for a single family home at the subject locus, 21 Barcelona Avenue, Salem, Massachusetts, based on his judgment that said lot was a legal, grandfathered, non-conforming, buildable lot. (See attached Exhibit#1.) 11. On January 19, 2005, the Plaintiffs, Patricia A. Pitreau and Jayne M. Diamont, amongst others, as persons aggrieved by this decision, filed for an Administrative Ruling from the Board requesting that the Board reverse said decision of the Building Commissioner. The Plaintiffs alleged that the lot is not sufficient in size to meet the current requirements of the Salem Zoning Ordinance relating to the required square footage to build a single family dwelling. Secondly, the Plaintiffs alleged that the lot fails to meet any exception to lot size provided by the Ordinance or by any law of the Commonwealth. (See attached Exhibit#2.) 12. After a public hearing, the Board upheld the Decision of the Building Commissioner by written decision dated March 2, 2005 and filed with the Salem City Clerk on March 2, 2005. (A certified copy of said decision is attached herewith as Exhibit#3.) 13. The subject locus at 21 Barcelona Avenue, located in an R-1 zone, contains 7,493 square feel. The Salem Zoning Ordinance, Article VI, Section 6-4, Table 1, requires a minimum lot area of 15,000 square feel. (A certified copy of said Table is attached herewith as Exhibit #4.) 14. The subject locus at 21 Barcelona Avenue, together with the lot known as 19 Barcelona Avenue, has been, since 1962, continuously owned in the name of Michael A. Francullo and Blanche E. Francullo. (A copy of the Salem Assessor's Office record is attached herewith as Exhibit#5.) Adjoining lots held in common ownership are considered one lot for zoning purposes. See et al v Board ofApneals o_ fEas►np 14 Mass. App. Ct. 334, 439 N.E. 2d 308 (attached as Exhibit #6) and &UP P. Asa k andL Deborah Van Valkenbgrg v. Board of Amals of Westwoo 47 Mass. App. Ct. 733, 716 N.E. 2d 135(attached as Exhibit #7.) 15. The Salem Zoning Ordinance, at Article VIII, Section 8-2 provides that "if two (2)or more lots, or combinations of lots and portions of lots, with continuous frontage in single ownership are of record for more than five (5)years at the time of adoption of this ordinanceand if all or ts do not meet the requirements for lot width and area as established by this ordinance, the hands inof the volved shall be considered to be an undivided parcel for the purpose of this ordinance, and no portion of said parcel shall be used or sold which does not meet lot width and area requirements established by this ordinance, or shall any division of the parcel be made which leaves remaining any lot with width or area below the requirements stated in this ordinance. (A certified copy of said Article VIII, Section 8-2 is attached herewith as Exhibit#8.) WHEREFORE,the Plaintiffs herein pray that the Decision of the Board be annulled and the lot at 21 Barcelona Avenue be deemed a non-buildable lot. Respectfully submitted PROS BY THE PLAINcTIFF Patricia A. Pitreau Jayne,M. Diamont City of Salem Ward APPLICATION FM PERMIT TO BUILD ADDITION, MAKE ALTERATIONS OR NEW CONSTRUCT101 awwoRrxw_Apptl=w Io compbgE aE ftj !n socdww-414 e4 N;and rx ilis �p�p r. T OGT1010 I OISIgCf AWN AND MS10M eeaws nor Lor S" TY —,eioa `°>• PE AND COST OF BUSIM ILDING•AN appUCanfa compel,P"A-D A. TYpP�E OF IMPROVEMENT F36 OPOSED USE•FOR"DEWXMOW USE MOST RECENT USE Q Adduonunesftn .aelrnw conf �M ,! QAeMedneMt,e„�,,,fMus+q uMh nddrG I eery•n Por D.131Q T" awoow*-Emrmbw 1, Q Clewed,.ww nligas 3 ❑ AltrMweerSM7Mldlo/ of Wr 20Q w4nv o❑ R�wr nl0,lalnlle/ Q T�polo.noK or doeelnwry• 2t Q RMWa f)trn0o S Q wvw"ty neeArw*eoldrMY{ww Ani. 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PRNCPAL TYPE OF NEATM REL G TYPE SEWAGE D 30 IwY�� �� ISP08AL L TYPE Of MECIIAIECAL 31 Whod hnr lin 40 R64 or what am wopv YW„Iw alt 3: SoduM MIM „ •, ❑ PeMlt ffapYC,ode.Mel 33 Q^'� Pwdaad daeow/ 3813C4* K TY��PR OF TER SUPPLY my ~ ri� �6 Q No 34 1..J o„r•smoly 3, dhw•sc/e►r •2 „ffllld♦efdogMlr MI/fl,w by an M..lm+ tl Q ftue&mK dllllenr b Q w dT Q No J. weera,ow M. DEMOLITION OF STRUCTURES: ,9. Tani u,yrr ya a Amr yq +:Wawa ou�e on .rw p��,a� for ham Historical Commission been rece,ved q q a 1501 veers? Yes_ No—%,-- 5a oxixi Tow mw,na.a 2–� L Dip Safe Number IL recuse Of ocfr-arngQ,W p swccs n�.a.. sr Errbq .._._.�_.-_ I C0IItr01: sa aw000,- HAVE THE FOLLOWING UTILfna BEEN DISCONNECTED? Yes No smerrw euear s orn V1Yler S1 bwere 6 " ENf:/ic t A"r-- DOCUMENTATION THE ABOVE MUST BE ATTACHED BEFORE A GAN BE ISSUED. N. COMPLETE THE FOLLOWNG: Historic Di*W. Yes_ No-A-1(K IDIOM endow doourerrledpn finm HIsL Cpm) Conservation Area? Yss_ No_ (M yes,please enclose Order a ) Has Fre Preventron approved and stamped Plans or applications? No_, P:0; rty located in Ile SAA district? Yea_ fYn_ with Zw~V Yes t� No_ (If no,enclose Board of Appeal deciypq Is lof gnvx anted? Yoa_: No_ (f yes,submit dogrmenle*mffl no,submit Baird of Appeal decision) It new coratruction,has the P►ape►Raft Slip been encioeed? Is Andutechual Access Board approval required? Ysa_ No (If Yes,submit documentstlon) Massachusetts State Contractor Lcerros S� Salem Litems Hoar Improvarmm Contractor* 13.r23LHomeger,gs Exempt form If applicable) Yes_ No CONSTRUCTION TO BE COMMENCED WITHIN SD((B OF ISSUANCE OF BUILDING PERMR '�Z CQNBTRU(.TION IS TO BE COMPLETED BY: Man axhneion is to the tor ofpdin But)e�a please In Impac V. tD17dTIFiCAT10N• To be completed by of a #kwff rr . 6r110111 Mar -AVS rA+e un .+onr �Y ��. ,.rte 0. & r 7 091 z 6bae 7 g� naft Mayrp or 6yna as his amb ro aue,od o all aoopcade laws a this�uradittion.by e,s owns a record arm a,et I here been aWbd:ed by the owner to melee Brie appacs0on COrlfom b Sonature a GoT • 3J3 LoT 360 LcT 7J� I LOT 3Z $ ?4 93 2 s SEE L .C. N //6026, Lor Lor T17 I 3Z9 i N N Qo /1 l I PR Pos�O I D fiGLING I-8t I � I - -J SS Zoning District: R - 1 R CEL z a/VA vG Assessor's Map 4 Lot 0029 A& t�aPlot Plan of Land DAVID Barcellona Avenue P"IUP Salem, MA TUIENZon� a NO-38720 r r: 9pFfS J Scale: 1" = 20' May, 2001 i DO NOT WRITE BELOW THIS LINE VL VALIDATION Building Permit number Building Fon DEPARTMENTtrsE otar Permit issued un C+ow Building 19� Permit Fee S Fire Gragiin0 Certificate of Occupancy S lira Load.p Drain The S Approved by. OCCIOWCY load Plan Review Fee S NOTES AND Data•(For depWtn)W use) S le PERMIT TO BE MAILED TO: DATE MAILED: Construction to be started by. Camoleted by. I I V 1. CITY,OF v W C :: . IN OUT 1 REQUIRE CHECKED DEPARTMEjS SK;NATURES 9� � -� 'l�r.cs)JFa?:�9'14*a✓ =r LOCATION: APPLICANT: t ASSESSORS OFFICEKULIICN S7. DATE: CITY CLERK(if Involving a new street) @93 WASHINGTON ST. y+yyDATE:—I,2WI6Q' y �r-t� � 7�J)h0 ✓ciD+ 4"' (ttflo!'�► Jy t a: . DATE- t VM iM�Gwr.+ct,�r- t ELECTRICAL. @48 LAFAYETTE STREET,2m L. AR JOHN GIARDI DATE:'i`��_`�f ,a FIRE PREVE FORT AVE(WILLOWS A CARBA) J 1J CAPT.HI DSONO 1Caw~_ �w w� Q .e - DATE: p�I HEALTH ®120 WASHINOTO(II ST 4°1F JOANNE$DOTE' BUMDMG (^ja 120 WASHINGTON ST-.,? TOM ST. PIERRE 1► �u DATE: , y ***SUBMIT WITH PERMIT APPLICATION WHEN COMPLETED*** ''-='.: Oy- o� 2-w Cr"OF ULM9 * Z?ALM CITY OF SALEM. MA so016or&VPM CLERKS (1FFICE FEE -b .A vo 56 ToTUw=DGr Prwft TMOabei�ad*aPaa�tAe! Mabe b/W* /nawmnOra awkwapnedpned0( kmftdab asd aald all la /Hylas GD > YaaaaderaM�/ la f /Com• Placa dnarlda/ftema'kpropaaadb ve boas mgmimad ra to mapaaw di laftpa In a4ao 'damm'"I* / Jl l d/ra ar"S Ca ftimmo. Administrative Appeal from the decision of the Building Inspect ors ruling on lot 328, 21 Barcelona Avenue is a buildable lot. The petionersl, and other allege that the lot is not sufficient in size to meet the current requirements of the Salem Zoning and Ordinances relating to the required squire footage to build. SSe gndly the lot fails to meet:;.any exception by the lot size provided by the TM Or i naM etor b ate ;ta1u d raaaad(a): or do 11 Rva"M Nis* cot an admime Code ad i9XbwdddP to �mMLmmdZwX9 �..-� ea.rad 0 em tba aMa d �d PnP� d tlu WWI (PIJBJIesNmQ) P./llaarr: S'� � 4 v�eR now Addrmw AddrmS - Td.ite, Tiat lre. Dols �, 00� �y �ya.,l app/aallrs nasal be toed wMb /ro My Cbwk A aaa//ad Wgry d 1610 > +dl► be lmiw A m potltloaar d Ar tlne d OrO Ar QI!cMrk a Arae be Ned Nis Ar/eaaalaaf Ar/esd d llppoel bai wbb a atrde , n lboy Uwal al weals pbt a Ara �p�I�te���• t a i, .g d AT= ATTER cmam ✓/�!/NL /,OIHE N T No Y q,6�b I _ 1 �,orFn�ivfi �'` S,91 fwfi,.A'po } ,1 Apt _.i'i'/Y.. .•itl `� 1' :J l S,f>,�r.�.�-,�1 .aV..V-I-� "�G✓ri�:�3 9�F• 7s�/-335 s� I __ _ l �uJ'er11t MAti AV tQp,rcrrnil- �nu.c . '. Sam �t cl 7(0 � Rit of 470 loq 1prr e Ano t/ -/,*h Z b /ja r�e14;'A /09V e- , Cy7� 7y�—Uo GG _ Wick, R./,t- o/7 7 v • i' -" 151.} ' .i lel".:.„” ........:..... ............ •?4• r ...� w. ...'..ar ......ru...va.: .... .. .. a ......m:.w........ ...... .........n.. .... :C x ♦ ' y°S'' ifaa ) , v,.. lA % -` 1 r4, �'I ik r 'k ; 04, mvn aSvw �a r[di,'4y"��a'a, •g,.lnsh.,. ler l4o k �.1 I 1 � 1. .. . , ✓n '.i,., 1. 00 CITY OF epLEM, MASSACHUSETTS ARD OF APPEAL STANLEY J'A SOVICZ, JR. 'Z SA EM,WASH'NGTON MASSACHUSETTS TT, 3Op9FLOOR "'ClJLcRK S'O F16E 7p TELEPHONE: 978-745-9595 FAX: 978-740-9846 DECISION ON 1005 MAR -p ,4 IQ 4 t ADiyINISALN THE PETITION OF PATRICIA PI BARCELO�gV E RULING FOR THE PROPER RE AVENUE R- QUESTING 1 Ty LOCg7ED AT 21 A hearing on this petition w Members present: as held on Feb Mori Nina Cohen ChY 16, 2005 with arh and Nicholas Helides airmen, Richard Dionne B the following Board notices of the he Notice of the Bonnie Belair, Massachusetts hearing Fere Published in the S hearing was sent to abutters Edward usetts General Laws Chapter 40A. alem Eveningand others and News in accordance with Petitioner is requesting an Administrative q I 328 is a buildable lot for the pro 1 zone. pe Appeal of the Building Inspectors property located at 21 Barcelona Avenue locateling that d in an R- The Board of gpp�I after cazeful topside Plans at the he ration of "91 makes the following findings of ac`vidence and after reviewing the 1• Petitioner Patricia Pitreau of 18 February 4, 2005 seekingdminiadative Ave.,elona Salem filed a petition on Commissioner an a Blanche Franc reg regarding the lot at 21 BarcelonaA of a decision of the B Lowell S appeared at the he wilding 2• According m Pea anng represented be Property owner, According to the body. Y John Keil pilin b Petition, the decision ty, Esq. of 40 buidablee lote Building Co for the which she sought appeal was althou Commissioner relating8h it is not sufficient in size to lty Of Salem that the propertythe to required square sufficient petitioner is a meets no exceptions to the that the re statute. the re further states that the requirement requirement under the zoning ordinance Property 3• Petitioner w nance or b Barcelona Avenue and Ravenna S y eleven resident Property O'Leary, who is also a resident of treet, and by Ward Councillor owners on 4• The followings also Barcelona Street uncillor Leonard a Predecessor in interest sound by the Zoning Boazd. In y variances front fronts Sought a variance to su May 2001 James Noble, residence on the ge apertynd dimensional setbacks onthe Property and October 2001. In June 004 is petition was withdra truct a single family Building , Mr. O without g Inspector whether Lem sought a Prejudice in With an adjoining the Property had wrr, opinion from the Building Comm. lot also owned b merged for p Y the F urposes of Zoning �I a 1 in ssioner,stated that he determined f ly *- St. Pierre, helaw A TRUE Co��f ATTEST d Policy regarding merger doctrine no merger had occurred Q �� as he understood such policy CITY CLERK SALEM, MAK DECISION OF THE PETITION OF PATRICIA AD1yINISTRATICE APPEAL FOR THE PROPEp1RTREAU RE BARCELONA AVENUE R-1 Th'LOCATED AN Page two TBD AT 21 to be applied by the Building Department. On February 27,2004 December 22, 2005 determined that the *. St. Pierre Francon. based on a the Building Property was a buildable lot. On g Commissioner issued a building permit to Mrs. incorrectly given as 22e400 application and a set ofplans, although Sn At clearing gin January 2005 feet on the Permit application. work co size was hearing before the Zoning commenced oard appy should be denied on the 1 the ancullo argued that neighbor's granting of the buildingy had an o the nei M.O.L. Chapter 40A Permit and failed to make a timely appealty to appeal the 6. The neighbors . Section 7. Pursuant to said they believe that a building Permit would not issue Board of Appeal held a hearing This belied way based on Cheon the issue of whether the lot was buildable the they did not have notice of the r story of the property. The buildable. aware that the land w Issuance of the buildingY also argued that Commissioner's dete being cleared, and the � although they were 7. The Zonis mlination in February Y th not know of the Building g Board found that the appeal from at the property was buildable. was not timely, ori the alternative, that the dete granting of the buil Cornmiyyioner that the lot was not merged should on by the Building Permit Therefore, base on the fact uphold BuildingCo and on evidence Presented, at 21 Barcelona von a boners Thomas St. Pierrthe Board make a motion to th a vote of 0 in favor �131OII for the property located and 5 to deny the petitioners locate ADMINISTRATIVE RULING DENIED February 16, 2005 Nina Cohen, Chairm� Board of Appel an A TRUE COPY A EST C' a 4E CITY CLERK I SALEM, MASS. j A AND COPYOF THIS DECISION THE CITY CLERK HAS BES FILED FILED I7T1 THE PLANNING BOARD Appeal from this decision, if any, shall be Massachusetts General Laws, Chapter 40A e Pursuant to Section 17 of the date of filing of this decision in ' and shall be filed within 20 days after the General Laws Chapter 40A, Sectio 11 c The of e City Clerk. shall not take effect Variance or S want to Massachusetts ty that 20 da unit a copy °f the decision pecial perrmt granted herein filed Ys have elapsed an no appeal has bearing the Certificate of the Ci that it has been dismissed or denied been filed, or that, if such Clerk Deeds and indexed under the is recorded in the South appeal has been owner's Certificate of Title. name of the owner of Essex Registry of record or is recorded and noted on the I i � Ii �xH113L Art. VI, 5 6-4 SALEM ZONING ORDINANCE DEN9I'1°j REGULATIONS TABLE I RESIDENTIAL DENSITY REGULATIONS Minimum lot area (square feet) R-C R-1 Minimum ]ot area R-2* R•3*� Minimum lot width (feet)dwelling unit (square feet) 80.000 15,000 15,000 Maximum lot coverage b 80,000 15,000 25,000 g y all buildings (percent) 200 7'500 3,500 Minimum depth of front 100 100 Minimum width of side yard (feet) 20 30 100 yard (feet) 40 35 35 Minimum deear 15 15 Maximum height of buildind (feet) 40 10 15 gs'(feet) 100 30 10 20 Maximum height of buildings35 30 30 Maximum height of fences/boundary(stories) 35 35 2'/z 21/z 45** Minimum distance between buildings on lot (feet) 8 2yz 31/2 " These density regulations relative to height will a 00 40 6 6 nanced in whole or in 30 40 Part by the U.S. Public Housing to all housing projects even though fl- Massachusetts Department of Community Administration and/or Commonwealth of eluded will be housing Y Affairs-Division of Public Housing g for the elderly constructed by the Salem Housing ' Specifically Multifamily dwellings buildingY ex- cluded ting of a minimum of two hundred 3 Districts (200 000 held under a g Authority. height of fifty (50) feet f t four (4) stories in height. single ownership and con- square feet may be built to a maximum Retaining walls, boundary walls and/or fences the retaining walls, boundary walls may be built abutting the property]ine. The height of and/or fences shall be measured on the inside face of the structure on the owner's side. Refer to section 7-7 herein for visibility at intersections. BUSINESSTABLE II AND INDUSTRIAL DENSITY REGULATIONS Minimum lot area (square feet) B 1 B-2 Minimum lot width (feet) B-4 I Maximum lot coverage 6 6,000 12,000 g y all buildin 60 6,000 40,000 Minimum depth of front gs (Percent) 40 100 60 Minimum width of side yard (feet) 25 80 150 Minimum depth of rear Yard eet)yard (feet) 15 30 45 Maximum height of buildings(ffeet10 10) 30 _ 30 Maximum height of fences 30 30 /boundary walls (feet) 30 25 30 10 10 45 45 10 15 A TRUE COPY ITTEST a�ITY CLERK LEM, MASS. 24 Lo rl 13a•� r ' h J�'{ . Ld ED 21 LOCATION criry OF SALEM. MASS. /J J �. YEAR OWNER c;=r C� /"! ='/f G/ /• .'. . �' O 3O DESCRIPTION SAL, SQ• VALfAL LIN. 1973 / _/ n p/� BLD_ FF. LAND VAL_ /f �/ tceC G c.�l�O l�sa�e s da�r fA FT. �ao (v oli 7 MICHAEL A. 6 BLANCHE FWMLO E 79 25,683 600 600 i 7,493 400 400 a J cli 171t 9 bD OWNER DESCRIPTION VA!_ OLD o z .: MME OWNER AS Knaus ruu, SAME OWNER AS PREVIOUS YEAR a '�df' .F' - 3 SAME QiM1TtfR AS PREVIOUS YEAF lc ;.�I95B LL 0 I SAitlf GWNER AS PRtyi(" yW ��.`� �7 CQ VAfE OWNER AS PREVIUUS YEAH 4960 SAME owntx�, rte►; 1961 _ 19927 1963 ��:u'..•vN r•��. � 1964 SANE OWNER AS YRFV(OUS Ytlw c � 196$ _nrU1'J�� r }SQs''v;TrLIS YEAR i r 1966AS Z r 1%7 }ki! ZV 1968AY R A SAME p'y. roux : 'kf J�j Sao o$fZ �/ cd 1970 // �S� 0 0 1971 C xHI0 )T # v Abglaw 439 N.E.2d 308 14 Mass-APP-Ct.334,439 N.E.2d 308 (Cite as: 14 Mass.AWct.334,439 N.E.2d 308) Page 1 n r 1 C Appeals Court of Massachusetts, throughout and defined by bounds or lot lines Bristol. ascertainable by recorded deed or plan," did not specifically define lots in terms of sources of title. Gary A. GIRARD et al. [FNl1 131 Zoning and Planning x235 414k235 Most Cited Cases FNI. Anita F. Girard, For purposes of judging entitlement to grandfather Anderson, Doris M. Anderson Herbert V. rights, itis appropriate to refer to the deed by which Cardoza, Rita B. Cardoza, Anthony P. the Person claiming those rights took title, unless Rosette,all abutters of the ocuussa Gild J. the language of the bylaw unambi oust for an earlier reference Y Provides m V. 141 Zoning and Plann ga235 BOARD OF APPEALS OF EASTON et al. 414k235 Most Cited Cases [FN2] Vacant lot was not entitled to be treated as a separate lot under grandfather provision of zoning .1 FN2.Alfred F. Gomes and Martha Gomes. bylaw, where neither it nor the adjoining lot in common ownersbip was in conformity dimensional requirements of twith the he inning bylaw at the Argued May 26, 1982, time of the recording of the deed to the lots. Decided Aug.23, 1982. 151 Zoning and Planning x254 414254 Most Cited Cases Vacant lot did not qualify for statutory exemption Review was sought of constructive) from dimensional requirements, where it was held variance from dimensional requirements of granted m common ownership with an adjoining bylaw. The Superior Court, Bristol Coun g no plan of the lot had been recorded. parcel G q�d J., granted judgment in favor of the County Hurd, 40A, §6. owners, and plaintiffs appealed. prop [6)Zoning and Planning X585 Kass, J., held that: (1) snlot was Appeals taenGtled to 414k585 Most Cited Cases be treated as a separate lot under grandfather Parry may seasonably file a complaint seeking Provision of zoning bylaw; (2) vacant lot did not judicial review of a constructively granted variance qualify for statutory exemption from dimensional or special permit before a copy of the decision has requirements; and (3) the constructive) been filed with the city or town clerk. M.G.L.A. c. variance was without factual s Y granted 40A, §§ 15, 17. annulled.was and would be 171 Zoning and Plannin "71 414571 Most Cited Cases Reversed. Zoning relief granted constructively is not beyond judicial review. M.G.L.A.e. 40A,§§ 15, 17. West Headnotes [al Zoning and Planning X537.1 [1] Zoning and Planning 05251 414537.1 Most Cited Cases 414k251 Most Cited Cases (Formerly 414537) Adjoining Parcels held in common ownershi are Constructively granted variance from dimensional nin P requirements of zoning bylaw was without factual generally considered one lot for zo 121 Zoning and Planning 05251 g Proposes. support and would be annulled. M.G.L.A. c. 40A, § 414251 Most Cited Cases § 15, 17. Zoning bylaw, which defined "lot" as "a single or •'309 "334 Joseph Graglia, Boston, for Gary A. continuous tract of land held in the same ownership Guard&others. ©2005 ThomsomVest.No Claim to Orig.U.S.Govt. Works. http://print-westlaw.corn/delivery.html?dent=atp&format=HTMLE&dataid=A005580000005... 1/26/05 439 N.E.2d 308 14 Mass.App.Ct.334,439 N.E.2d 308 (Cite as: 14 Mass.App,CL 334,439 N.E.2d 308) Page 2 MartYn H. Lincoln, Town Counsel, North Easton, for Bd.of Appeals of Easton, dated August 28, 1973. That deed described the land as consisting of two parcels. The smaller *335 William T. Condon, Boston, for Martha M. Parcel was described Gomes&another,submitted a brief. Parcel w larger, vacant with some precision. The as described as: "The land is adjoining the fust parcel and is bounded easterly by Before *334 HALE, C. J., and PERRETTA Seaver Street souther KASS,JJ. and Seaver b IY *336 by Reynolds Street, on Anderson and northerly by land now or formernow or formerly of ly of *335 KASS,Judge. Frank Pierson." Alfred Gomes and Martha Gomes are the owners f2l At the date of the 1973 deed the zoning by-law Of two adjoining parcels in Easton containing 8,769 (a comprehensive revision having become effective square feet and 10,500 square feet, respectively. A as of March 27, 1973) defined "lot" as: " dwelling house is located on the smaller or continuous A single the larger parcel is vacant In theParcel, and tract of lad held in the same ownership throughout and defined by bounds or lot alone separately, the aggregate. let lines ascertainable b minimum lot size (the Parcels square reet)below tthe he Y recorded deed or plan.^ We de not read this definition as one which specifically applicable provision of the zoningdefines lots in terms of sources of title. Compare Easton, The Gomeses desire to use the 1 vacant Vener v Zoning Bd o Appeal parcel as a building lot claimin Mass. 628, 630, 116 N.E.2d 2 7 (1953);Lmrdsay3. under the Easton zoning by-law g grandfather rights Board of A 8 and G.L.C.40A, § 6 130-131,284 E d 595(19PPeals Of 1lton 72). 362 Mass. 126, applied Por, an it Stived5, c. 808, § 3. They also and received by operation of law (G.L. c. 40A, § IS), a variance to build a single-farm 131141 When on August 30, 1973, the deed to the dwelling on the 10,500 square foot lot. Gomeses was recorded, the zoning by-law of Easton, in § 6-3, specified a minimum lot size of A judge of the Superior Court ruled that the vacant 40,000 square feet and a minimum frontage of 150 lot could be treated as a separate lot for n feet. The grandfather provision in the by-law gre"dfather provisions, that a varianceom °t 4-7' spoke in terms of conformity Y law, § have been granted if there had been time and it "g the area, 81i width yard space or building coverage the board, and that the IY action by provisions in effect at the time of recording the deed operation of law was grant We1rreverse.variance by to such lot or lots." entitlement to For purposes of judging grandfather rights it is appropriate to [1] 1. The status of the vacant refer to the deed by which the Parcels held in common o Parcel. Adjoining rights took title, unless the person claiming those considered one lot for zoom ership are generally rights uousl language of the by-law Zoning Bd o A g purposes. Heald v g Y Provides for an earlier reference 286, 290, 387 ApN.peals 170ee fief , 7 Mass.A 362 See Lindsay v. Board o Appeals ( ) The "usual 362 Mass, at 131, 284 N.E2d 595The Easton on' construction of the word 'lot' in a zoning context by-law provision, § 4-71 did not refer to the first ignores the manner in which the components of a dead in which the description total Biven area have incidentally lfor the vacant lot was been assembled and used (a deed, incidentally, recorded at 1904). analysis, concentrates instead on the question whether the Neither of the Gomeses' sum of the components meets the req was in conformity Parcels, on that analysis, requirements of h wi� the dimensional the by-law." Becket v. Building inspector o in of the zoning by-law Marblehead, 6 Mass.A I time Of lording 8 "in effect az the 1195(1978). PP• 96, 104, 373 N.E2d g the deed to such lot or lots." f5l 2. Rights under G.L. c. 40A, J 6. No **310 Alfred Gomes acquired both parcels on grandfather rights accrued under G.L. C. 40A, § 6, February 1970, and conveyed them to himself as appearing the n St. 9a, c. 808, and his wife as tenants by the entire § 3• The fust tY by a deed to be used for single- andmtwof�m,grants to lots C 2005 Thomso ly houses an n/aVest.No Claim to Orig.U.S. Govt Works. httP://Pmt.westlaw.coin/delivery.htznl?dest--atp&format=HTMLE&dataid=A005580000005... 1/26/05 439 N.E.2d 308 14 Mass.APP,Ct.334,439 N.E2d 308 (Cite as:14 Mass.App.CG 334,439 N.E.2d 308) Page 3 exemption from dimensional requirements in certain circumstances if "at the time of recording" the lot ••was not held in common ownership with any case,no decision had yet been filed. adjoining land." The vacant parcel here it issue [61 Now faced with that question, we have no has since 1d.- been held in common '337 difficulty concluding that a ownership with the adjoining parcel and, therefore, file a complaint seeking P�v may seasonably does not qualify for the exemption. Another, more constructively g Judicial review of a variance limited, exemption was added [FN51 before atopy of the decision haOr s beeial n fled Paragraph of§ 6 by SL1979, c. 106.to the fourth with +338 the city or town clerk. This is because if a plan of the lot in question has applies only when statutes fix a certain time after a procedural and as no Ian of been recorded, event for been p the lot in issue in this case has before the event.ng action, Tanzillihe action v. Casassaa 324 Mass. recorded rights, if any, under Y taken unavailable. § 6 are 113, 115, 85 N.E.2d 220 1949 , and cases McDermott v. Jamula, 338 Mass. 236, 241 ciied 3. The variance. As an alternative b N.E.2d 595 (1958), cert denied, 359 U.S. 968, 79 grandfather rights, the Gomeses, on September �7 S.Ct. 879, 3 L.Ed2d 8de 1959 . 1979, petitioned for a variance. The board held , when the underlying facts ( ) Early action hearing on October 25, 1979, but failed to issue a action are known works no prejudice t ing ground adverse decision within seventy-five days after the film of Party and is different from premature action, where that Petition. [FN3] Pursuant to G.L. c. 40A, g the basis of a cause of action is still uncertain, "[I]t within seventy-five days after the application for is a general 15, elief is filed, a board is required to render a valuable rightsPolicy of fire law to prevent loss of decision on pain that the relief will be deemed to be cion because [something] was done too soon. Becton, Dickinson & Co. v. Slate Tax granted. See Noe v. Board of Appeals of Hin ham, Commas, 374 Mass. 230, 234, 372 N.E.2d 1254 13 Mass.App. 103, 104- 107, 430 N.E.2d 853 (1978). (1982). Recognizing that the board had constructively granted a variance to the Gomeses, FNS. As to the time within which action the Plaintiffs brought an action on December 21, must be taken on applications for special 1979, under G.L. c. 40A, § 17, as amended by permits, see G.L. c. 40A, § 9, seventh par., St-1978, c. 478, § 32. On the date the plainfifTs, as amended through St-1977, c. 829, action was filed no copy of a decision had been and Building ins $ 3F, filed with the town clerk In Noe v. Board of Attleboro Landfl1I�r of Attleboro v. Appeals of Hingham, supra at 110, 430 N.E.2d 853, Mass.Adv.Sh. (1981) 1653Mass. _ we left open how and when review can be had 8 a 1655, �423 N.E.2d 1009. See also G.L. c. 40A, § 15, case in which a •*311 board does not take action as appearing in St.1975,c.808, §3. [FN41 or, if it does, fails to file its decision with the city or town clerk. [7) Zoning relief � and granted constructively is not beyond juonra review. The relief so granted may FN3• The seventy-fifth day fell on appeal under G.L. c. 40A, December 1, 1979, but that Nas determine whether facts exist which wouldl7 to have Saturday, so that the effective deadline enabled the board to became December 3, 1979, the a Brant the relief. Were it board of appeals could, through non-action, put flagrantly unlawful zoning relief FN4. Eventually the board did act. The beyond review. record discloses a decision favorable to the Gomeses dated December l0, 1979, but it [81 In the record before us there is scant evidence appears that the decision was not signed by 10 support a finding that there are circumstances all the members of the board on that date, B to the soil conditions, shape, or and, in any event, when counsel for the topography of[the] land or structures and especially plaintiffs inquired with the town clerk on affecting such land or structures but not affecting December 19, 1979, about the status of the generally the zoning district in which it is located." G.L. c. 40A, § 10, as amended through St-1977, c. m 2005 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://print.wesUaw.com/delivery.h> pdest--afp&format=gam E&dataid=A005580000005... 1/26/05 439 N.E.2d 308 14 Mass.APP.Ct.334,439 N.E.2d 308 (Cite as: 14 Mass.App,CL 334,439 N.E.2d 308) Page 4 829, § 48. Nor are there any Findings by the judge to that effect. in the absence of that fundamental ground for a variance, it is not necessary to inquire further. Lewicki v. Board of Appeals of Haverhill, 8 Mass-App. 906, 906- 907, 394 N.E.2d 1129 (1979)• The judgment is reversed. As to the variance, a new judgment is to enter that the variance granted by operation of law was without factual support and, had it been granted by a timely decision, would have been beyond the authority of the board;accordingly,the variance is annulled. So ordered. 14 Mass.APP•Ct.334,439 N.E.2d 308 END OF DOCUMENT ©2005 Thomson/West.No Claim to Orig.U.S.Govt,works. http:"Print.Westlaw.coin/delivery.html?desf=atp&gormat— H"THEE&dataid=A005580000005... 1126/05 7 * 7 - - -. . U\.. C a5� 716 .2d 135 47 Massass.App.Ct.733, 716 N.E.2d 135 (Cite as:47 Mass.APP,Ct. 733,716 N.E.2d 135) Page 1 C Appeals Court of Massachusetts, generally considered one lot for zoning purposes.- Norfolk. 141 Toning and Planning a321 414321 Most Cited Cases Philip P. ASACK&another[FNl] A Person owning adjoining record lots may not artificially divide them so as to restore old record FNI. Deborah Van Valkenberg. boundaries to obtain a exemption; to grandfather nonconforming P preserve the exemption the lots must V. retain a separate identity. BOARD OF APPEALS OF WESTWOOD. 151 Zoning and Planning E 414k2 Most Cited Cases No.97-P-2176. A basic purpose of the zoning laws is to foster the creation of conforming lots. Argued May 13, 1999. **135 *733 Stephen Gordet, Westwood, for the Decided Sept. 15, 1999. Plaintiffs. Thomas P. McCusker, Jr., Boston, for the appeals d Property owners brought actions to defendant. decisions of board of a review applications for denying their Present: permit to build on nonconforming PERRETTA,DREBEN,& SPINA,M. lot. Cases were consolidated. The Superior Court, ** Barbara A. Dortch-Okara, J., affirmed. Owners 136 DREBEN,J. appealed. The Appeals Court, Dreben, J. held that Property owners' common own p WestwoodWhen in ,1988, the in their Plaintiffs dced a Lots 7 and 8 nonconforming lot and adjacent lot red ship or prop" eliminated the nonconformity_ on a recorded plan, they were unaware that in 1970, prior to the passage of the 1975 revision of G.L. c. Affirmed. 40A, including a new been issued for lot 7. The 1019751revision rrequiredaa West Headnotes variance to be exercised within a year of its [1]Zoning and Planning 0503 grant. 414503 Most Cited Cases FN2. In relevant part G.L. c. 40A, § 10 as Property owners' common ownership of inserted by St.1975, c. 808, nonconforming lot and adjacent lot reduced "Ifthe rights authorized by a variance dare eliminated the nonconformity, or and thus owners not exercised within one year of the date of could not avail themselves of variance which had Previously been issued for the nonconforming lot. grant of such variance they shall lapse, and 2 may be reestablished only after notice and [ 1 Toning and Planning x'321 a new hearing 414k321 Most Cited Cases The pursuant [to] this section." A landowner will not be Provision was again amended by dimensional nonconformity if�itted he t use tea St 1984,c. 195. adjoining land to avoid or his Discovering the existence of the variance during e refinancing of the property and relying thereon, the [3J Zoning and Planning E�254 plaintiffs in 1994 sought a building 414k254 Most Cited Cases Permit was denied, the denial was *7 Permit. The Adjoining parcels held in common ownership are the Westwood board of a 734 upheld by appeals (board. and, in tum, by the Superior Court. [FN3]We affirm. C 2005 Thomson/West.No Claim to Orig. U.S.Govt. Works. http://Print.westlaw.com/delive htnil r1• dest=atp&format=HTMLE&dataid=A005580000002... 1/26/05 . i 71.6 N.E.2d 135 47 Mass.App,Ct.733 716 N.E2d 135 (Cite as:47 Mass.ApP.Ct.733,716 N.E.2d 135) Page 2 wer3. Two cases e consolidated. Apparently,involving the dere was a ownership so that she could sell the lot with he Procedural difficulty in the first case, and existing house and garage the plaintiffs ld a small two years later reapplied for a and on the other lot. She sod the lot with the building permit, house in 1975 to Hogan's predecessor in title and sold the •735 remaining an lot in 1982 to The facts are undisputed and are set forth in the findings of he trial judge. In 1970, vlariance had lapsed b vgans argument that the and Robert J. Valinote owned lots 7 and 8eshhoarwyn on Y reason of c. 40A, § ip Justice Kaplan termed drastic," and not matching a 1936 plan. Their home was on lot 8, which the the statute's text, a construction that would destroy Purchased in 1936. They acquired lot 7, Y wholesale all variances more than one old adjacent unimproved lot, in 1942. Due to changes remaining unexercised on the effective date of the in he zoning by-law after 1936, lot 7 in 1970 statute. Ibid. He also indicated that a "milder" lacked both he frontage and the area needed to be a construction which takes the form of cancelling buildable lot. The requirements, which continue to variances which have not he present time, are that the lot have an area of Year of the new statute **13b7 "Might pen uttaa within a 40,000 square feet and a frontage of 125 insupportable strain on the s great and 1970, the Valinotes obtained a variance in ober o lbrd statutory language. qualify lot 7 as a buildable lot. The variance on its [ll As m Hogan, we need not reach the broad issue contained no language placing a time limit validity and could continue in force without limit of Of retroactivity. time. See Hogan v. y the trial judge was correct nin ruling thaeed not tthereewas 403,474 N.E.2d 1158(19g5� 19 Mass.App.Ct. 399, no exercise of the variance by the 1972 conveyance of lot 8 to he Prossers. fFN41 Even if we assume In 1972, the Valinotes sold lot 8 to Ronald L. and that the sale was such an exercise, we agree with he Marguerite L. Prosser, and in 1973 sold them lot 7. defendant board which in its decision stated, "[T]o Also in 1973, the Prossers conveyed both lots to he extent that the separation of said Lot 7 and Lot 8 Ronald L. Prosser as trustee o the Rosser F could in an Trust. ri trustee, ally variance, the subsequent y way be determined erger of Lot 7 andeof a Lot 8 for a variance to construct a house on lot a but his m common ownership in the absence of anything was denied by the board, s Ahhou more, would nullify aPPea1 from that denial to the er"or Co led an fY any type of an exercise." appeal was dismissed for want of prosecution. his FN4• The plaintiffs argue, again relying In 1988, the plaintiffs purchased boli lots from the on Hogan, that he 1972 sale of lot 8 was an exercise of the variance. In Hogan the Prosser Family Trust, and i building permit, he denial on 1994 applied for the court found that there was a sufficient f which is the subject of exercise of the variance b this appeal. As indicated earlier, the first notice he lot Containingin he sale ca the Plaintiffs received of the 1970 variance was in 1993 a the house in 1975 because, or 1994 when a title examination was performed for without it, the built on lot would have been in manifest violation of the lot area and a refinancing of their property. minimum frontage Present case thebo d uand encs. the The plaintiffs rely on language in Hogan v. the Superior 19 Mass.App.Ct. at 403, 474 N.E.2d 1158 to Court judge distinguished Hogan on the ground urged by the defendant board support heir contention hat G.L. c. 40A, § 10, the namely that a variance was not required for statute which provides that a variance lapses if not lot 8, that it had status as a valid exercised within one year after its grant, see note 2, nonconforming use, and was not dependent supra is not retroactive and does not apply to upon a variance to comply with the zoning variances which were granted prior to its effective by-law. The facts set forth in Hogan and date. In Hogan, he owner of two adjoining lots �n he record of obtained a variance allowing he Present case are her to divide her insufficient for us to accept that distinction. The lots in Hogan were 0 2005 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://print.WCStlaw.co,Wdelivery.him1?dent alp&format=H TMLE&dataid=A005580000002... 1/26/05 716 N.E.2d 135 47 Mass.App.Ct.733,716 N.E2d 135 (Cite as:47 Mass.App.Ct.733,716 N.E.2d 135) page 3 originally separate lots and acquired by the owner az different times, see Hogan at 400 Purpose, which is reflected in the zoning n. 3, 474 N.E.2d 1158, and the discussion that Precludes an owner from availing himself principle elf ofa of the court appears to treat the two lots as nonconforming exemption unless he includes his merged, adjacent land in order to nonconformity, minimize the [2) Unlike the situation in Hogan, where the two Wellesley, 345 Masse 348, 53Board of Appeals of lots ended up in different ownership, (1963), should not also apply to the plaintiffs Who subsequent purchase of lot 7 b P here the by reason of their deed from the •+ 138 were already the owners of lot 8, effected mer merger ssers, who own both lots 7 and 8. Their ownership Ofrote� as did the later purchase of both lots by the which is adjacent to nonconforming lot 8, reduces Plaintiffs. This result is closely analogous to the or eliminates the nonconformity. principle of long-standing application in the zoning Zoning Bd of A See fetter v. ss. 628 context [with regard to nonconforming exemptions] 630-631, 116 N.E.2d 277 (1953). For Othis reason, a landowner will not be permitted to create a a1ey caner avail themselves of the 1970 variance, dimensional nonconformity if he and the denial of the building adjoining land to avoid or [can diminish his g Permit was proper. nonconformity." Planning Bd. of Norwell v. Serena Since the lainti by their 27 Mess.A4 not aware of the variance when fission were PP•Ct. 689, 690, 542 N.E2d 314 (1989) and •736 cases cited, S. C., 406 Mass. 1008, 550 Property, no equitable considerationsoumilitate N.E.2d 1390 (1990). Bunte v. Zoning Bd. of Mass against this result. Compare Hogan a Hayes, 19 Appeals of Harwich, 38 Mass.App.Ct. 957, PP•Ct az 404, 474 N.E.2d 1158, where the 958-960,650 N.E2d 355(1995). Plaintiffs' position opposing a building described as "so intrinsically Permit was [3][4] Moreover, should not prevail." y inequitable that it common ownership "[a]djoining parcels held in for zonia Pare generally considered one lot g Purposes. Heald v. Zoning Bd. oj Judgment a8rmed. Appeals of Greenfield, 7 Mass-APP-Ct. 286, 290, 387 N.E.2d 170 (1979). The 'usual construction of 47 Mass.App•Ct.733,716 N.E2d 135 the word "lot" in a zoning context ignores the manner in which the components of a totaltven END OF DOCUMENT area have been assembled and concentrates instead on the question whether the sum of the components meets the requirements of the by-law.' Becket v. Building Inspector of Marblehead, 6 Mass•App.Ct. 96, 104, 373 N.E.2d 1195 Board of Appeals (1978).^ Girard v. of Easton, 14 MAPP-Ct. 334, 335, 439 N.E.2d 308 (1982), A person owning adjoining record lots may not artificially divide them so as to restore old record boundaries to obtain a grandfather nonconforming exemption; to Preserve the exemption the lots must retain % separate identity." Lindsay v. Board of Appeals of Milton, 362 Mass. 126, 132,284 N.E.2d 595(1972). [5) A basic purpose of the zoning laws is "to foster the creation of conforming lots." Murphy v. Kotllk, 34 Mass.App.Ct. 410, 414 n. 7, 611 N.E.2d 741 (1993). See Giovannucci v. Board of Appeals of Plainville, 4 Mass.App.Ct. 239, 242-243, 344 N.E.2d 913 (1976). We see no reason why this ®2005 Thomson/West No Claim to Orig.U.S.Govt. Works. http://pmt.westlaw.coin/delivery.htmhdest=atp&format=HTMLE&dataid=A005580000002... I 1/26/05 Ari. Vru SALEM ZONING ORDINANCE ARTICLE VIII. NONCONFORMIT1 cial. NONCONFORMITY Sec. 8.1. Intent, titling the public safety, upon order Of such off-,- (a) Within the districts established by this or- �rmit is granted dinance or amendments that may later be adopted, e) Any use for which a special lots, structures as Provided in this ordinance shall not be deemed and uses before land and a nonconforming exist which were lawful before this ordinance was use. passed or amended but which would be prohib. Sec. 8.2. Nonconforming itis, regulated or restricted under the terms of this ordinance or future amend lot. (b) Nonconformities ture all not be amendment. Where a lot or lots exist which could not be expanded or built upon for residential purposes under the terms extended nor be used en ged upon, of this ordinance by reason of restrictions on lot adding other prohibited structures Or sesdelse- subject tos for area or othelfollowin where in the same district. such lot of lots of a structure, A nonconforming may be used, a nonconforming and use a Provisions: nonconforming ming use of land, ora (1) Any increase in not co g use of a structure and land shall or depth re area, frontage, width, extended or enlarged b quirementsofazon- Yard building or premises of additional B'achment on a or by-law shall nota gordinance intended to be seen From signs which are and two-family residential ntial use lwhich ot for single. addition of other uses of a f the premise would by the time of recording ,at the prohibited or endorsement, which• generally in the district involved, ever occurs sooner, was not held in co vided, however, and notwithstandin PrO' °wnership with an common Provisions of this ordinance st the g any other formed to then-existing requirements land, con. existing nonconforming contrary, an had less than theproposed requirement quirem n and altered or enlarged in thallus,ng or use at least five thousand 5,00 yuirementbut may be area and Gft ) square feet of granting of a permit therefor b ' subject to the y(50)feet of fro Peals as provided in section 9-4 hereithe n board of ap visions of this section shall o frontage.c The pro- to prohibit a lot beingnot be construed (c) Nothing in this ordinance shall be time of the building, built upon if, at the to require a change in the deemed is not g, building upon such lot designated use of an Plans, construction or dinancerohibited by the Salem Zoning permit was issued Y buildingforwhich a building or. the Prior to the notice of hearing 2) If two (2) or more lots, construction tanninshall board' provided that actual lots and °r combinations of portions of lots, with continuous the permit is issuedg�n within six(6)months after frontage in single owners With p are of record ries on and shall be diligently car. less than five (5)Years at the time of adop- until completion of the building. 'Actual construction" is hereby t1On of this ordinance Placing Y defined t, in the the lots do not and if all or part of g of construction materials in meet the re Position and fastened in a Permanent lot width and area as requirements by for Where demolition or permanent ordinance, such lots established by this removal manner. may be built upon building has been of an existing single-family residential use within a per tory to rebuilding, substantially begun prepare rind not exceeding shall be deemed to beth demolition or removal date of such recording, (5) Years from the vided that work shall be diligentlonstruction, pro. lots each have a g' provided Of that the sand minimum area of five thou- completion of the building y carried on until ge of square feet and g involved. frontage of lift a minimum (d) Nothing in this ordinance shall be deemed y (50) feet. to prevent thestrengthening (3) If two (2) or more lots, or combinations of condition of an gthening or restoring to a safe lots and portions of lots to di unsafe b building or part thereof declared fronts with continuous Y any official ge in single ownership are of record chair with pr° for than five (5) years at the time of TRUE COPY �A EST Ptionofthisordinance ,and if all or part I CITY CLERK 50 su... ! NONCONFOR,NITy SALEM ZONING ORDINgNCE Of the lots do notArt. VIII, g 8.5 lot width and meet the requirements for for ordinance, the lands ea s established be con- increased in he] sidered to Y this in section height, except as provided be an 8-6• However, if such h structure Purpose of this ordinance, and parcel for the used for no Portion of single- or two•family residential said parcel shall be used or sold which does or can be not meet lot width and area re formit enlarged or altered in con- y with the lot coverage, front yard established b requirements side Yard, re division of the this ordinance, nor shall any ments of Table Iax yard and distance require- parcel be made which leaves ment or °fAit]cle VI, said enlarge- remaining any lot with width or area below alteration shall not be the re increase in the nonconformity deemed an requirements stated in this ordinance. ture and milt of the struc- Sec. area and lot widthssiare even though the lot 8.3, Nonconforming use of land. are nonconfor Where (2) Should such structureming, use of land exists that is be destroyed by any permissible under the made no longer means to - extent of amendment terms of this ordinance or Percentof]tsre ]ace more than fifty (50) it remains otherwise lawful,use continued solong ss lift ]i mentCostor Y(50)percent of its floor more than ]owing provisions: subject to the of destruction, ' area at the cted � fol- it shall not be reconstructed except in conformity with the ructed (1) Such nonconformin this ordinance. Provisions of larged increased g use shall not be en- larged, area of land o extended to (3) Should such thanoccupy a reason for an structure be moved for an the effective date as occupied at Y distance ment of this ordinance, ion thereafter conformWhatsoever,it shall or amend- the district in Which to the re (2) No such nonconforming hich it is locatted aiona for moved, atter it is in whole or ' ming use shall be moved the!ot or in Part to any other portion of Sec. 8-5 . effective datecel occupied by such use at the Nonconfo adoption or "ming use of structure, this ordinance. amendment of If a use of m]ses in combination ere is a structure and pre- 3) If any such nonconfor ]owed in the exists that would discontinued for an ming use of land is n district under the ter not be al- twelve Y reason for ance or amendment, the use ms of this used 12) consecutive months peri°d of Solong as it re quent use of such land shall any subse- the folio mains otherwise may be continued regulations s wing Provisions: 'wise lawful, subject to specified b all Conform ordinance the the district in such ]and is located.r (1) Permitted oexists b whichhis g structure devoted to a use not Sec, y this ordinance in the dist rict 8.4. land in which it is located shall Nonconforming structure. tended, all be enlarged, ex. Where a structure exists or structural] , reconstructed built under the terms of this which could not be y altered ' moved of restrictions on area the use of the Structure' except in chars dinance b n to ging dimensions, , lot covers Y reaso in the district in a use permitted lure or its location other the characteristics of thetstru d which it is located. (2) A11Y nonconforming use may be extended be continued ti ion such structure may throughout an lawful, subject to it remains were Y parts of a building otherwise of arranged which (]) No g Provisions: such use at the time of or designed for such structure may be enlarged ment of this o adoption or amend- tered in a wayged or id]nance,but no such u eA formit , Which increases its non extended building. to occupy 1all Y except as provided for ' Y and outside such 8-6. In addition, such o in section structure may not be (3) On any buildin to g devoted in whole or in part � any nonconforming use, work may be i 51 SMH 6. 16 GENERAL NOTES 0 S PLAN IS THE FS 9 \ 1) IRVEY AND PUBLICRESULT S GROUND FIELD AND PRIVATE PLANS. 2) U77LI77ES SHOWN ARE BASED UPON FIELD SURVEY AND r :?, LocusY RECORD PLANS AND ARE NOT NECESSARILY I DIC o N A77VE OF UNDERGROUND CONDITIONS 3A e O,c- \ S v� "erAv� siz \ 3) THE CONTRACTOR SHALL BE RESPONSIBLE FOR VER/FY1NG AND DETERMINING THE L EXISTING UTILITIES, SHOWN / ELEVATION HOWN ORNOT SHOWN ON THESE PLANS, PRIOR TO ANY CONSTRUCTION. THE ENGINEER SHALL BE N077FIED IN WRI77NG OF ANY U77LI77ES FOUND INTERFERING W/774 THE � PROPOSED CONSTRUCTION AND APPROPRIATE REMEDIAL ACTION TT ,� LOCUS MAP BEFORE PROCEEDING WITH 774E WORK. / `\, v�� V 4) THIS PLAN IS BASED ON 774E REFERENCED PLANS, DEEDS AND THE RESULTS OF A FIELD SURVEY AS OF THIS DATE. b NO CER77FICA77ON IS INTENDED AS TO PROPERTY RILE �. OR AS TO THE EXISTENCE OF UNWRITTEN OR UNRECORDED �4 EASEMENTS \ 5) THE OWNER SHALL CONFIRM COMPLIANCE WITH ALL APPLICABLE lip' \ CODES AND REGULATIONS GOVERNING THE MATERIALS AND/OR METHODS OF INSTALLA77ON OF ANY IMPROVEMENTS DEPICTED ON THIS PLAN. Ls.s \ LOT 332 ZONING DISTRICT- R1 \ ASSESSORS MAP 4 PARCEL 29 LOT 333 RTLE REFERENCE. CERTIFICATE 67580 ysv° (� PLAN REFERENCE.• LCC 11802—E, CERT. 7179 ZONING DISTRICT R1 LOT 331 ONE FAMILY RESIDENTIAL OT AREA 15,000 SF. LOT WIDTH 100 FT. FRONT YARD 15 FT. u \ SIDE YARD 10 FT. ,. 7 41 �� ���ti REAR YARD 30 FT. LOT 360 \ / UTILITY CONNECTIONS SHALL BE INSTALLED IN ACCORDANCE WITH REQUIREMENTS OF \ K14'0T 50 W CITY OF SALEM DEPARTMENT OF PUBLIC WORKS. L E G E N D s _ J LOT 328 3tif.i- o SMH EXISTING SEWER'. MANHOLE 34 N 7,493f SF. LOT 329 LOT 330 o D"1H EXISTING DRAIN MANHOLE EXISTING CATCH! BASIN csa EXISTING HYDRANT Lp tt• ' EXISTING WATER GATE 1000 CONTOUR0 EXISTING 0 EXISTING SPOT GRADE \ °56p_ UTILITY POLE G LIGHT ON POST LOT 325 LOT 326 LOT 327 R SERI�pE E2�NG RETAINING WALL W D / ti o0000000o STONE WALL CURB ox —x — x — FENCE o_ 0. PROPOSED CONTOUR 0 100x0 PROPOSED SPOT GRADE FR pSED No. 42 G PGC X31 FSR 32.0 a x 129 L5 DETAIL ,� a w FENCE a'�� SITE DEVELOPMENT PERMIT PLAN SM dl (,a4elo� � p � K EROSION CONTROL SILT FENCE a S PWOpTEE \ 4' CHAS 3EN 13� 8, SEWER LOCATED IN 2-x2-x4'-E" vr° PDsTs �Z � ;A 5 SALEM . MASS . AT 8' O.C. (MAX) MiRAFi No. too sED:MENT 130 a� 4.55' fig. 4' PREPARED BY C°"' RCL FABRIC AL EASTERN LAND SURVEY ASSOCIATES INC. _._r+Ar BALESI� — � � \ l SO4'39'30'E „v,rs + ' �� SM127 94 "\ Zg a CHRISTOPHER R. MELL 0, PLS ' V "°4124.45 SEWERExsnrc czourD OPESSM I2 118.51 � 104 LOWELL ST. PEABODYt MA. 01960 2Y(, OF hA11 1A 77 (978) 531 -8121 y BARCELONA CHRISTOPHER — °pP �> � j SCALE: 1 " — 20' JANUARY 13 2005 No 3131 � c n r2ans . /'. " N7 �,+; °avL;o,' GIS•r �' i -° mF ° �� `►, ss1 NAI E PREPARED FOR REV. MARCH 11 2005 . 5L) UN:, a^J?ycL S.: ,R..°_ 20 PATRICK C H A S S E PHOTO REPRODUCTION OF THE ABOVE SEAL IS INDICATIVE OF UNAUTHORIZED REPRODUCTION OF THIS PLAN AND IS TO BE CONSIDERED A COPYRIGHT INFRINGEMENT AND/OR FRAUD. 0 0 20 40 60 BO A.172 ENFORCEMENT AUTHORITY SHALL NOT ACCEPT PHOTO REPRODUCTION FOR ANY PURPOSE. I-c 1 ,3993 a CITY OF SALEM, MASSACHUSETTS PUBLIC PROPERTY DEPARTMENT 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 STANLEY J. LISOVICZ, JR. TELEPHONE: 978-745-9595 EXT. 380 MAYOR FAX: 978-740-9846 July 6, 2005 Patricia Pitreau 18 Barcelona Ave Salem, Ma. 01970 RE: Request to issue a Cease and Desist on Permit#588-05 Dear Ms. Pitreau: At this time I am not issuing a Cease and Desist order on Permit#588-05. If you feel you are aggrieved by my failure to take action, your appeal is to the Salem Zoning Board of Appeal. Sur/ely, Thomas St. Pierre Zoning Enforcement Officer cc: Kate Sullivan James Gilbert, City Solicitor Attorney John Keilty Councillor O'Leary Nina Cohen, Chairman Board of Appeal 0 CITY OF SALEM, MASSACHUSETTS ?I PUBLIC PROPERTY DEPARTMENT 120 WASHINGTON STREET, 3RD FLOOR �gNM6 SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 EXT. 380 MAYOR FAX: 978-740-9846 July 6, 2005 Patricia Pitreau 18 Barcelona Ave Salem, Ma. 01970 RE: Request to issue a Cease and Desist on Permit#588-05 Dear Ms. Pitreau: At this time I am not issuing a Cease and Desist order on Permit#588-05. If you feel you are aggrieved by my failure to take action, your appeal is to the Salem Zoning Board of Appeal. Sincerely, Thomas St. Pierre Zoning Enforcement Officer cc: Kate Sullivan James Gilbert, City Solicitor Attorney John Keilty Councillor O'Leary Nina Cohen, Chairman Board of Appeal 1 CITY OF SALEM MASSACHUSETTS ?I PUBLIC PROPERTY DEPARTMENT free 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 EXT. 380 MAYOR FAX: 978-740-9846 July 6, 2005 Patricia Pitreau 18 Barcelona Ave Salem, Ma. 01970 RE: Request to issue a Cease and Desist on Permit#588-05 Dear Ms. Pitreau: At this time I am not issuing a Cease and Desist order on Permit#588-05. If you feel you are aggrieved by my failure to take action, your appeal is to the Salem Zoning Board of Appeal. Sincerely, Thomas St. Pierre Zoning Enforcement Officer cc: Kate Sullivan James Gilbert, City Solicitor Attorney John Keilty Councillor O'Leary Nina Cohen, Chairman Board of Appeal c� o �. CITY OF SALEM, MASSACHUSETTS PUBLIC PROPERTY DEPARTMENT 120 WASHINGTON STREET, 3RD FLOOR ��MINB SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 EXT. 380 MAYOR FAX: 978-740-9846 July 6, 2005 Patricia Pitreau 18 Barcelona Ave Salem, Ma. 01970 RE: Request to issue a Cease and Desist on Permit#588-05 Dear Ms. Pitreau: At this time I am not issuing a Cease and Desist order on Permit#588-05. If you feel you are aggrieved by my failure to take action, your appeal is to the Salem Zoning Board of Appeal. Sincerely, Thomas St. Pierre Zoning Enforcement Officer cc: Kate Sullivan James Gilbert, City Solicitor Attorney John Keilty Councillor O'Leary Nina Cohen, Chairman Board of Appeal CITY OF SALEM, MASSACHUSETTS _ PUBLIC PROPERTY DEPARTMENT ���IINB 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 EXT. 380 MAYOR FAX: 978-740-9846 July 6, 2005 Patricia Pitreau 18 Barcelona Ave Salem, Ma. 01970 RE: Request to issue a Cease and Desist on Permit#588-05 Dear Ms. Pitreau: At this time I am not issuing a Cease and Desist order on Permit#588-05. If you feel you are aggrieved by my failure to take action, your appeal is to the Salem Zoning Board of Appeal. Sincerely, Thomas St. Pierre Zoning Enforcement Officer cc: Kate Sullivan James Gilbert, City Solicitor Attorney John Keilty Councillor O'Leary Nina Cohen, Chairman Board of Appeal CITY OF SALEM, MASSACHUSETTS 4 PUBLIC PROPERTY DEPARTMENT a a. 120 WASHINGTON STREET, 3RD FLOOR �C�nMB SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 EXT. 380 MAYOR FAX: 978-740-9846 July 6, 2005 Patricia Pitreau 18 Barcelona Ave Salem, Ma. 01970 RE: Request to issue a Cease and Desist on Permit#588-05 Dear Ms. Pitreau: At this time I am not issuing a Cease and Desist order on Permit#588-05. If you feel you are aggrieved by my failure to take action, your appeal is to the Salem Zoning Board of Appeal. Sincgrely, I/V/ Thomas St. Pierre Zoning Enforcement Officer cc: Kate Sullivan James Gilbert, City Solicitor Attorney John Keilty Councillor O'Leary Nina Cohen, Chairman Board of Appeal ' i Jul OS OS 11 . 2Ga Daniel 970-745-3152 P_ 1 RONAN, SEGAL & HARRINGTON ATTORNEYS AT LAW FIFTY-NINE FEDERAL STREET JAMES T.RONAN(1922-18871 SALEM,MASSACHUSETTS 01970-3470 JACOB S.SEGAL MARY PIEMONTE HARRINGTON GEORGE W.ATKINS. III PAIGE K.HINTLIAN TEL(97Bj 744-0350 FAX(978)744-7493 FILE N0. OF COUNSEL JOHNH.RONAN MICHAELJ.ESCHELBACHER June 29, 2005 i Mr and Mrs. Daniel Robinson 55 Turner Street Salem, MA 01970 Re: Condominium Common Area Improvements Dear Mr. and Mrs. Robinson: In response to your request concerning your rights to build improvements to your condominium, I have reviewed the Turner Street Town Houses Condominium Trust recorded at the Essex South District Registry of Deeds. Article V, Section 4B of the Trust provides tr at"if fifty percent (50%)or more, but less than seventy-five percent (75B!%), in interest of the Unit Owners agree to make an improvement to the Common Elements, the cost of such improvements shall be borne solely by the Unit Owners so agreeing." This oaragraph is also a provision contained in the Massachusetts General Laws Chapter 183A, Section 18. Since your percentage interest is 50%, you can make improvements tc the common elements provided that you bear the sole cost. Please note, however, that the improvements will be owned by the condominium trust and unless your felloN unit owner agrees to an amendment of the Master Deed, the documents will not reflect your right to exclusive use of the improvements. If I can be of any further assistance, please do not hesitate to contact me. Very truly your§ '_�drge W. Atkins, III GWA/djz j I 1 : Jul 05 05 11 : 26a Daniel Robinson 978-745-3152 p. 2 M.,i.L-Chapi-r 183,Section 18 http://www.mass.govilegis/laws/mgl/l83a-18.htn- �: ss iU�nP� GENERAL LAWS OF MASSACHUSETTS PART . REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS TITLE I. TITLE TO REAL PROPERTY CHAPTER 183A.CONDOMINIUMS Chapter 183A: Section 18 Improvements; costs Section 18. (a)If fr;ty per cent or more but less than seventy-five per cent of the unit owners agree to make an improvernent to the common areas and facilities,the cost of such improvement shall be home solely by the owners so agreeing. (b) Seventy-five pe-cent or more of the unit owners may agree to make an improvement to the common areas and facilities and assess the cost thereof to all unit owners as a common expense, but if such improvement shall cost in excess of ten per cent of the then value of the condominium, any unit owner not so ag-eeing may apply to the superior court of the county in which the property is located, on such notice to the organization of unit owners as the court shall direct, for an order directing the purchase of his unit by the organization of unit owners at fair market value thereof as approved by the tout. The cost of any such purchase shall be a common expense. Return to: ** Next Sectian **.Previous Section**Chapter Table of Contents** Legislative Home Page I of 1 6,2412005 4:45 PM AIrSafe 39 Dodge St., PMB 211 •Beverly, MA 01915.978 922-1812 Inc. The Experts in Asbestos Removal 1 f FAX COVER DATE: 06/22/05 i , t NUMBIR OF PAGES(INCLUDING COVER SHEET):3 i TO: CEFY OF SALEM ATTN: TOM ST.PIERRE I i FAX RECEIVING: 978-740-9846 r FAX SENDING: 978.922-1812 [I WHEN FAXING BACK THE SIGNED PROPOSAL EITHER: 1.)PLEASE CALL AHEAD SO I CAN SWITCH THE PHONE OVER TO FAX. OR i 2.) Fax anytime to 781762-2915 THANKS. DAVE WALSH a a , 1 i mww.r. ... ...... .. f F7; ........................ Wrydm, a3YYYegr Mr t t: E'G/22/2005 13:57 7816820191 JOSEPHHAROLD PAGE 01/01 SagamOre Plbmbing&Heating.Irc. 90 Libbey Indostdal Parkway 7813U] 1600 www.rallSagamer6 gpm t Mechanical Contractors Weymouth,MA 02189 /81 331 8641 rax MP 71200/PM 7Z709/NH 39060 yi 9 t June 22, 2005 t ; i Town of Salem Building Department 120 Washington Street Salem, MA 01970 Fax 978-740-9846 j Re: Pickering Wharf (Salem Waterfront Hotel & Suites) Congress Street, Salem, MA 01970 Dear Sir: s Effective immediately please terminate the following permits which were issued to Sagamore Plumbing & Heating, Inc. in February of 2004. E ■ Plumbing Permit #P292-2004 for Pickering Wharf ■ Gas Permit #G342-2004 for Pickering Wharf Please fax confirmation to 781-682-0191 confirming receipt of this request, and confirming termination of the Plumbing and Gas permits. Any questions, please call me at 781-331-1600. Thank you. Very truly yours, t 2 2 6,fid. Joseph R. Harold III President JRH/car Pickering Wharf G6 22 05 Town of Salem—Termin00 Permits I June 22, 2005 Thomas St. Pierre Building Inspector City of Salem 12�Waslr�gton S$eet Sa n, MA 0197 CM a w� CD N w i Re: 21 Barcelona Avenue O N Deft Mr—jt.Pierre:' As an abub3er to the property at 21 Barcelona Avenue,please accept this as a formal request for you to Wmediately issue a Cease and Desist Order regarding the building taking place at 21 Barcelona Avenue as this lot does not conform with the City of Salem zoning requirements and is now before the City of Salem Zoning Board of Appeals for further legal discussion and hearings. I would appreciate it if you would also advise me when said order has been issued. Thank you for your cooperation. Yours ery truly, Patricia A. Pitreau 18 Barcelona Avenue Salem, MA 01970 978-744-9932