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20 BECKFORD STREET - BUILDING JACKET �,0 Beckford St. � \� (n Cttp of �bafem, 41ag$arbugett,5 Public Prapertp Department �3uilbing 3kpartment ene fs'alem&reen (978) 745-9595 (Ext. 380 Peter Strout Director of Public Property Inspector of Buildings Zoning Enforcement Officer June 14, 1999 Mr. & Mrs. Michael Cooney Mr. Richard Cooney 20 Beckford Street Salem, Ma. 01970 RE: 20 Beckford Street Dear Michael & Richard: As a result of our investigation of the above mentioned property, we found that the third unit in question was abandoned and as a result is a legal 2 family. We will allow you thirty (30) days to vacate the third unit. This order is relative to ongoing violation Article IV Section 9-2 (b) and Article VIII Section 805:(6). Thank you in advance for your anticipated cooperation in this matter. 4Peterout Zoning Enforcement Officer John H. Carr, Jr., Esq. 7 River Street Salem, MA 01970 978-744-3400 Fax: 978-744-3400 April 9, 1999 By Hand John D. Keenan, Esq. Assistant City Solicitor 60 Washington Street Salem, MA 01970 Re: 20 Beckford Street, Salem, MA 01970 Dear John: Confirming our impromptu conversation on the Essex Street Mall on Monday, April 5, 1999, my understanding is that while you were away the Cooneys have come forward and have alleged that in 1981, 1988, and 1993 (respectively) they pulled three separate gasfitting permits. I also gather that they have asked Peter Strout whether such permits change his March 24, 1999 opinion, concluding that 20 Beckford Street is being operated as an illegal three family dwelling, in light of your discussion of Chapter 40A, Section 7 in your March 22, 1999 legal opinion to Mr. Strout, which reached the same conclusion. Mr. Strout informed me of this development while I was at One Salem Green on other matters late in the afternoon of March 29, 1999, and I immediately responded with a handwritten letter, dated March 30, 1999, a copy of which you already have. In this letter I would like to amplify on my initial March 30, 1999 letter to Mr. Strout, stating in somewhat greater detail why these three alleged gasfitting permits should not effect your combined findings that 20 Beckford Street is being operated as an illegal three-family dwelling. I am enclosing copies of a gasfitting permit, dated October 17, 1988, apparently filled out by Scott Lauziere, journeyman plumber, relative to a range and furnace installed on the third floor of 20 Beckford Street, and a water heater installed in the basement. I am also enclosing a copy of a "Gas & Plumbing" ledger for "January 1993" showing that $15.00 was paid by "G. LeGault, Plumb" on January 19, 1993 for work done at 20 Beckford Street. John D. Keenan, Esq. 2 April 9, 1999 These were found by the Plumbing and Gas Inspector, Denis Ross, in response to the Cooneys' recent claims. Mr. Ross told me he was unable to find the January 19, 1993 gasfitting permit, to which the ledger entry relates, although he also said he can tell from the amount paid that it was for the installation of a gas range. Mr. Ross further informed me that he was unable to find anything relative to the alleged 1981 gasfitting permit. At the time I wrote my March 30, 1999 letter, I had not seen these, although, now that I have, it would not have made any difference. As you know, Section 7 of Chapter 40A provides in relevant part: . . . if real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action, criminal or civil, the effect or purpose of which is to comoel the abandonment . . . of the use allowed by said permit . . . shall be maintained unless such action . . . is commenced . . . within six years next after the commencement of the alleged violation. [Emphasis added] In the first instance, please note that the statute refers only to a "building permit", and not to a "gasfitting permit", as the triggering event for the commencement of the six year use statute of limitations. Just as the plumbing and gas inspector has exclusive jurisdiction over gasfitting permits, so too the building inspector has exclusive jurisdiction over building permits. Simply put, a building permit is by definition not a gasfitting permit; the two are separate and distinct from one another. Since only a building permit can trigger the commencement of the six year use statute of limitations, and then only in certain circumstances, as discussed below, one never gets to the second level of discussion, simply because the three permits allegedly obtained by the Cooneys are not building permits. I also think it important to point out that the work actually described in the 1988 gasfitting permit clearly does not relate to a three-family use, illegal or otherwise, since it only relates to a range and furnace being installed on the third floor, and a water heater being installed in the basement. Knowing that the property was and is in an R-2 district, and that the work described in the permit did not exceed that use, I can easily see where the then (i.e. 1988) plumbing and gas inspector saw no need to investigate further, especially considering that he had no practical way of knowing that the nonconforming third apartment use had been discontinued for an approximate ten year period, roughly from 1972 to 1982, as you pointed out in your March 22, 1999 legal opinion. You will recall that on my February 9, 1999 letter to Peter Strout I furnished him with a copy of Lord v. Zoning Board of Appeals of Somerset, 30 John D. Keenan, Esq. 3 April 9, 1999 Mass. App. Ct. 226 (1991), in which the Appeals Court upheld a cease and desist order against an owner who had operated an illegal two-family dwelling in a single-family district for twelve years, notwithstanding that the owner had pulled two building permits in the interim, one for the addition of two bedrooms and a living room on the first floor, and the other for the construction of a two car garage. The Appeals Court basically held that because neither building permit was for work which clearly related to the nonconforming use, the six year statute of limitations provided for in Section 7 of Chapter 40A never commenced. Similarly, the work described in the Cooneys' 1988 gasfitting permit clearly does not relate to the nonconforming third family use. Thus the Cooneys have two insurmountable obstacles: the first is that the permit obtained was not the kind of permit that could trigger the six year statute of limitations; the second is that the work described in the 1988 gasfitting permit clearly does not relate to the three-family nonconforming use. In this regard I also enclose a copy of Cape Resort Hotels. Inc. v. Alcoholic Licensing Board of Falmouth, 385 Mass. 205 (1982). Note that in Cape Resorts the Court found that a building permit had been pulled relative to certain nonconfirming uses, but not to others, which resulted in the Supreme Judicial Court holding that the six year statute of limitations only applied to the nonconforming uses for which the permits had been pulled, but not to those nonconforming uses beyond the scope of such permits, thereby effectively permitting the town to extinguish the latter which otherwise would have also been barred by the statute of limitations. Because the Cooneys' 1988 gasfitting permit only specifies work on the third floor, it is important to keep precisely in mind that the nonconforming three- family use that was actually extinguished is the second floor apartment, since it was discontinued for two years or longer (under your March 22, 1999 analysis) in the late 1970's. Hence, in addition to the foregoing, even if the 1988 gasfitting permit was the requisite building permit, which it was not, the Cooneys could not use it to bar an action "to compel the abandonment of the use allowed by said permit . . " because the permit was for work not clearly related to the nonconforming third apartment use on the second floor. It is also worth noting (again) the Cooneys have the burden ofrp oving that the nonconforming three-family use of 20 Beckford Street is legal. In order to do this they would have to prove in the first instance that a gasfitting permit is the same as a building permit, notwithstanding the express language of Section 7 of Chapter 40A, and then, having overcome that John D. Keenan, Esq. 4 April 9, 1999 threshold hurdle, they would have to prove that the work described by the permit clearly related to the nonconforming use. To the extent they could not cite any cases with respect to the first issue alone, and I have been unable to find any, I would think their only recourse would be to go to Court. Surely, their personal opinion, or anyone else's,is insufficient to meet their burden. In closing I can't help commenting on the irony of how the Cooneys' defenses have come full circle. You will recall that in my February 9, 1999 letter to Mr. Strout I anticipated what I then thought would be the Cooneys' defense--i.e. that the statute of limitations barred any enforcement action--by enclosing a copy of the Lord decision. As it turned out, I was wrong, as Mr. Landolphi chose instead to base the Cooneys' defense, at least initially, on a factual challenge to our assertion that the nonconforming use had been discontinued at all, and when that proved non-tenable, he changed it to an abandonment defense, apparently missing the 1975 amendments to Chapter 40A which established a simple two year discontinuation as an alternative means of extinguishing the nonconforming use. Now that a Section 7 limitations defense is the only hope he has left, he is raising it, even though he initially rejected it as being relevant in his February 22, 1999 six page letter to Mr. Strout, presenting the Cooneys' various responses to our allegations. In any event, I respectfully submit that this latest defense is no more persuasive than any of his earlier ones, and that, in short, the three alleged gasfitting permits do not alter the fact that 20 Beckford Street is currently being operated as an illegal three-family dwelling, as determined by you and Mr. Strout in your respective March 22, 1999 and March 24, 1999 letters. Thank you for your continuing attention to this matter. V my yours, John H. C rr, Jr. / cc Mr. Peter Strout, Zoning Enforcem icer (By Hand) ✓ Mr. & Mrs. William Russell Burns, Jr. (By Hand) Mrs. Hestor Tinti (By Hand) F. Kelley Landolphi, Esq. MASSACHUSETTS UNIFORM APPLICATION FOR PERMIT TO DO GASFITTING (Print . or Type) a � y _ _ CITY OF SALEM Date _ 19 � ~ BUILDING DEPARTMENT Permit 1_� Building nn,^� [JP Sowner ' s/y�� AT: Location L(1 � � �01c� / Name Fee Paid Type of Occupancy:G New ❑ Rerlovdtion x--11 Replacement Plans Submitted Y'es ❑ No IVIS�' a� N N W N aC Z ¢ 0 ¢ I I N ¢ O N ¢ O U m f S Z< cc O j =O N ¢ O W O 0 O Z 6 ¢ ¢aUW O Z- NwW So WZ U N W ¢ 4 SEE: cc O U Z P Z W W O > LL ZW < ¢ W m Z O Z O < > W z ` O O W F<J- O W F = I'm O O S !L 7 3 O f! J U Or > O 6 1- O SUB-8SMT. BASEMENT IST FLOOR 2ND FLOOR 3RD FLOOR 4TH FLOOR 5TH FLOOR BTHFLOOR 7THFLOOR SETH FLOOR (Print or Type) Check One : Certificate Installing Company Name _5�� CGliZflr �+ Corp. Ai/d".dress 14 urs-`4,J,x a Partnership �!_LI < c �ru " `� S 3 f� Firm/Company Business} Telephone �� - 0'((o Nan.e of Licensed PI Limber or Gasfitter CD ' l 1 hereby certify that all of the detail( anJ in(onnation I have Submitted (or enured)in above aPPlication are title and accurate to the beat of my knowledge and that all plumbing work and installations perfr.nned under Permit issued for this application will be in eomplana with all pertinent pruvSuom of the Masuchuseltt Stale Cas Code and Otapler 141 of the General U.S. ALL APPOINTMENTS FnR W2 By TO BE MADE BY TYPE LICENSE : - Plumber 2�` LICENSED PLUMBERS ONLY. _ Gds f i rter Signature o licensed City/Town : Master Plumb r or Gasfitter Journeyman APPROVED (OFFICE USE ONLY) Lic•enGe Number 1 SERUM■I■111 ®■ e �_ _ �I■Inl� „ n1 . El IN lilluml : ��'-��'�' ��■IIIPJ�I■1111n■ :�� ,- _ �-SLI■1111 Inl��l 1111 : , - ■111 . -• mI■l11� 11111 • ,�.�.. - �..,� . .. �I■1111� �, 1111_ ., .01, MINI! mi■III 11=■111 Ii1111lPAM■1111... �Ii11111. - I1111M1 ,I mIIN MINI= ■1111li�■11111 ll " ' - ,1 � , _ G_� �I■III��J�I■IIIIIImI �� .."..�, _ �� . � -� �I■IIIIGt�I■1111 � I �I �9■111121 ,ml Mill MOO I �G �� .1�71■1111 /� ■1111 - - II -•' -i-� ��ii1111E�m1■11111!■I �I 41■111111►�I■111111■IMWOI -1 / � ;J1l�i► ,. _.,�_ %✓��i■111l11,/��1■1111�:��J�� i : �I .� ��fl_1:�)111II -- .,r �i■111�►.1.�1■1111�'�I . � �1...:--� til■IIII��mI■11111�1 , ® �1=-�. '._;/ � - l�Jl■IIIIQ��I■11112 -• I® . ■I■111111 ■11111■I� ■I�IIIE � MINIMUM E KELLEY LANDOLPHI Attorney and Counselor at Law 70 Washington Screen,Suite 401 /Salem,MA 01970/(978)740-9715 February 22, 1999 Attorney John Keenan Assistant City Solicitor City of Salem 60 Washington Street Salem, MA 01970 RE: 20 Beckford Street, Salem, Mass. Mr. & Mrs. Michael Cooney Mr. Richard Cooney Dear Mr. Keenan: As you are aware the undersigned represents Mr. and Mrs. Michael Cooney and Mr. Richard Cooney in their legal affairs. As such, the controversy surrounding their property located at 20 Beckford Street, Salem, Massachusetts, and allegations of an abandoned non- conforming use status of said property, apparently in the conjunction with the , sale of same, has been referred to the undersigned. I note from the onset that you have been provided with various materials from Mr. John Carr, who is apparently objecting to the sale of the above- referenced property as a three-family home. I also note that this correspondence has been forwarded to Mr. and Mrs. Wm. R. Burns, Sr., who 1 can only assume also oppose the sale of the property. It is noted that the Burns are abutting homeowners to the Cooney property, but Mr. Carr is not. You are also in receipt of my letter dated February 4, 1999 to Mr. Carr, by which I attempted to put this matter to rest. Apparently, my attempts were unsuccessful. In this letter, however, I will address only those issues which pertain to the status of the building and not Mr. Carr's threats against my client, Michael Cooney, in his capacity as Massachusetts State Police officer and against the Cooney's real estate broker and firm, which may in fact be the basis of a complaint to the Massachusetts Board of Bar Overseers of the Supreme Judicial Court. John Keenan, Esq. Page 2 In short, the controversy in this matter arises from the claim of the Bums' and Carr that from 1972 to 1982, the Cooney property was allegedly utilized as a two-family dwelling. Thus, the continued use of the property as a three-family non-conforming dwelling, grandfathered under the Salem Zoning Ordinance, had allegedly been abandoned or discontinued. Factually, the assertions in Carr's letter, as well as the controversy that he and Bums' have created with the city building inspector, the Cooneys and their Realtor, have no merit. I have spoken with my clients in detail, and they have further spoken with their father, Jos. Cooney, a retired Salem Police officer, with regard to the property. Mr. Jos. Cooney advised that since he owned that property, he never intended to abandon the three-family use of the property. More ver;Mr. Coone -and his children=have_advised.me th-aatat no_time wast the wholesale Y _ �emoval_of anY kitchen performed atheprot _ perrty nor_was any structural fireformgtion done to same Any minor changes to any of the interior of the property would have been de minimis, and again there were no structural changes to the integrity of the property as a three-family dwelling at any time during Joseph Cooney's ownership of the property, or the subsequent use and occupance of Mr. & Mrs. Michael of same. Again, because it forms the gravamen of the Carr/Burns complaint, Lrei grate that-accofding to-my clients-no kitchen-was ever removed or replaced,.in_either,a.wholesole orcomplete_fashion_ I Moreover, it appears that Mr. Carr's review of the records of tenants and residents occupancy of the property was shoddy at best. You will note that the city census records indicates, from the last 20 year period of 1980 through 1999, that the property had been consistently used, taxed, and maintained as a three-family dwelling. I have used the 1980 date because it is 7 years prior to the date of the formal legal opinion issued by your predecessor, City Solicitor Michael O'Brien, Esq., when this same issue was raised regarding this property. As you are further aware, in October, 1987, City Solicitor O'Brien, in a letter to then building inspector Wm. Munroe, indicated that he had, "investigated the use of the above-entitled real estate and it is my opinion that it was a lawful John Keenan, Esq. Page 3 three-family prior to adoption of the zoning ordinance on Auaust 27 1965 thus _. its current use as a three-family is permissible." You will note that the City Solicitor's letter was filed with the City Clerk's office, and uses the word investigation of the use of the above-entitled real estate (emphasis mine). Mr. Carr may make of this letter what he wishes, and may come to his own analysis as to his opinion of the City Solicitor's opinion. Frankly, his position, (calling same, " worthless"), as to the value of this letter is irrelevant to my clients, and is more than somewhat disrespectful of the legal investigative findings of your office. However, let me state in no uncertain terms that the relevance of Mr. O'Brien's letter to my clients should be clear and unambiguous, as it was absolutely and completely determinative of their decision to purchase the real estate from their parents in June of 1990. You should note that Mr. and Mrs. Michael Cooney will testify without equivocation that they relied upon the aforementioned opinion of the City Solicitor in making their decision to purchase the property, a three-family home, along with the financial benefits which run with same. You are undoubtedly aware of the decisions of the Massachusetts Supreme Judicial Court regarding the reliance of parties upon the decisions of the city and its officials regarding zoning issues. See, Richard R. Vazza, Trustee, vs. The Board of Appeals of Brockton, 359 Mass. 256 (1971). As the Vazza case clearly indicates, purchasers of real estate may rely upon applicable zoning ordinances or bylaws in determining the uses which may be made of the parcel they are buying, and other parcels in the same neighborhood, given the Supreme Judicial Court's recognition that the purchase of homes may be the largest single investment in an individual's life. I cannot understate the import that the decision of the City Solicitor as set forth in his October, 1987 letter, had upon Mr. and Mrs. Michael Cooney, and later upon Mr. Richard Cooney, in their decision to invest in the real estate. Parenthetically, I note that the deeds to this property indicate that the sale from Mr. and Mrs. Joseph Cooney to Mr. and Mrs. Michael Cooney, and later from Mr. and Mrs. Michael Cooney to Mr. Richard Cooney, were arms length transactions, and were not inter-family deeds for nominal consideration. Thus, it could easily be argued that there was detrimental reliance on behalf of John Keenan, Esq. Page 4 the Cooneys on the representations, investigation, and formal legal opinion of the city's highest appointed legal official at the time of their purchase of same. I now refer back to the issue of abandonment of use. As you will also note, the Supreme Judicial Court has determined that two factors are necessary in order to evidence an abandonment of use. In general, those factors are intent to abandon and voluntary evidence of abandonment, either positive or negative. Mr. Carr and the Burns family may make what statements they wish regarding their position and their interpretation as to the use of the Cooney residence. However, it is factually uncontroverted that there was never any intention by Jos. Cooney or any successors in interest to abandon the three-family use, nor any voluntary evidence of an intent to abandon. As you state in your letter, in question form, let me tell you that :there were no structural changes to this property_; abandoning the use or otherwise tr'ansforming the configuration of the house from a three-family to a two-family dwelling. Next, the kitchen on the second floor was never completely removed and then fully replaced at a later date. What ininor_interior_improvements the Cooneys may have made to their home, did not defeat or otherwise alter the use of the property. Moreover, it is clear and further uncontroverted that the property has been taxed by the city as a three-family, utilities have been provided as a three- family home, and mortgage financing of the Cooney property has been based upon its use as a three-family property. To suggest now that it is not same, which suggestion is made coterminous with the sale of the property, leaves the motivation of the objectors to the use of the home in great question. You may also be interested to know that on February 1 , 1989, John Carr, in his prior position as a member of the Salem Historical Commission, before being removed by same by the current mayoral administration, raised his concern over the use of 20 Beckford Street to Michael Cooney, in relation to Mr. Cooney's application for a Certificate of Appropriateness to relocate a fence at 20 Beckford Street. John Keenan, Esq. Page 5 It is also noted that the minutes of the Salem Historical Commission meeting on that date indicate that both Mr. and Mrs. Bums were present at the meeting. As to Mr. Carr, he made reference to the issue of abandonment of use of the property during the meeting. Mr. and Mrs. Burns not only were present during the meeting but spoke against the Cooneys, however they only made reference to their opinion of the aesthetic issues surrounding removal of a fence, including issues regarding the look of shrubs in the neighborhood. At this point in time no one ever make any inquiries or demands with the Building Inspector, or with city officials relative to an issue of non-abandon non- conforming use. Yet some ten years later, these individuals have chosen to create these unfortunate issues with the Cooney family. One must question the true motivation of individuals who wait ten years, and begin to raise such vacuous objections at the point of sale of the property by this young family. Mr. Carr made reference to the Lord decision of the Appeals Court in 1991, only deals with the statute of limitation issues contained in MGL c. 40A, s.7. I would request that you look at the provisions of MGL c. 40A, s.6, with regard to abandonment of use, which is clearly topical in this case. I further note that ever since the Supreme Judicial Court has opined upon the issue of abandonment of a non-conforming use, first visited in the Dobbs case, and raised in relation to the above-referenced MGL c.40A, s.6, the court's decisions have always rested upon issues of intent and voluntary evidence of intent to abandon. Mr. Carr may feel that his version of the facts provide that this issue is clear cut. Obviously, we feel otherwise, and feel that any reliable review of same by a Justice of the Superior Court Department will result in the complete rejection of these meritless, false and questionably timed events. I have appreciated the professional courtesy extended to me by you and the legal department allowing me to respond to this issue which has been referred to you by the Building Inspector. Hopefully, your decision will finalize this issue, and you will realize that Mr. and Mr. Michael Cooney and Mr. Richard Cooney have every right to continue to market their property as a three-family home and sell same as such, and in doing so will sustain the opinion of.your predecessor, City Solicitor Michael O'Brien. John Keenan, Esq. Page 6 Should you have any further questions or comments regarding this matter, please do not hesitate to contact me directly. Sincerely yours, I am, l� 'r. Kelley Landolphi FKL/dad cc: Mr. & Mrs. Michael Cooney Mr. Richard Cooney Hon. Stanley Usovicz, Mayor Peter Strout, Salem Building Inspector Mrs. Janet Hicks Andrews - REMAX Unlimited Real Estate John Carr Cite of iWem, '4Ia.5!5arbUgett!6 a Public Propertp Mrpartment jBuilbing Mepartment ®ne 6alem green (976) 745-9595 t?Nt. 330 Peter Strout Director of Public Property Inspector of Buildings (0®� Zoning Enforcement Officer �ff February 9, 1999 U Copely Investments P.O. Box 418 Boston, Me. 02117 RE: One Salem Green 2nd Floor Dear Mr. Simon: This is to notify you that we are withholding the rent due to repairs that are needed to our space and the complaints that have not yet been addressed. 1. The HN.A.C. system is still not adequate, we have both hot and cold spots throughout. When the system air flow was increased dirt was expelled throughout the floor. 2. The rear door handle needs repair. 3. The elevator does not stop level with the floor and should be serviced. 4. Missing ceiling in the front hall. Please contact this department upon receipt of this letter and let us when these problems will be rectified. Sincerely Peteriout Director of Public Property cc: Bruce Guy, Finance Director a John H. Carr, Jr., Esq. 7 River Street Salem, MA 01970 978-744-3400 Fax: 978-744-3400 February 10, 1999 By Hand F. Kelley Landolphi, Esq. 70 Washington Street Salem, MA 01970 Re: 20 Beckford Street, Salem, MA Dear Kelley: I think it would be helpful as this process plays itself out if you would respond to the issues I actually raise, and not rebut points that were not in fact raised by me, especially those that are irrelevant and/or extraneous to the basic controversy between us. In the beginning of the third paragraph of your February 4, 1999 letter you quote me as asserting in our preliminary telephone conversation of Friday, January 29, 1999 that the Cooneys had abandoned the non-conforming third apartment use "at some unspecified time in the past." In point of fact, as I indicated to you in detail in that telephone conversation, and in my earlier telephone call to the listing broker, Janet Andrews, which led to her referral of the Cooneys to you, my understanding is that the previously grandfathered three-family use of 20 Beckford Street was abandoned during an approximate ten year period from 1972 (approximately) to 1982 (approximately) during which time the property was continuously operated as a two-family dwelling, one apartment consisting of the first two floors, and the second apartment consisting of the third floor. (See also my February 5, 1999 confirmatory letter to Peter Strout, detailing the same points I raised with you on January 29, 1999, a copy of which you should have already received.) For all its length, and many obfuscating detours, your February 4, 1999 letter is completely unresponsive to this threshold question. Having in mind that Bill and Betsy Burns, who have lived next door to the subject property for over thirty years are prepared to testify that during the above ten year period the property was consistently used as a two-family dwelling, as above-described, I simply ask you again in the interests of narrowing issues: do your clients dispute this basic factual assertion? F. Kelley Landolphi, Esq. 2 February 10, 1999 If so, perhaps you would indicate whom your clients allege the tenants were during said ten-year period. On the other hand, assuming you concede as a factual matter that the third-family non-conforming use was discontinued during the above period, is it your contention now that the non-confirming third-family use could be legally re- established thereafter without first obtaining a variance from the Salem Zoning Board of Appeal, which we all agree was not done. So far, all the statutory and case authority I have seen relative to our precise facts indicates otherwise, but it you have contrary authority, I would be happy to review it and discuss it with you. For my part I invite you to review the records for the property at the Salem Building Department, Chapter 40A of the Massachusetts General Laws, particularly Section 7 thereof, and also Lord v. Zoning Board of Somerset, 30 Mass. App. Ct. 226 (1991). Other than the threshold factual dispute as to whether the non- conforming third-family use was discontinued during the above ten year period, it seems from your February 4, 1999 letter that the only other bases you offer in support of your contention that the property is currently a legal three family is 1.) that the October 28, 1988 and June 25, 1990 deeds each contain a recital that the property then being conveyed was being conveyed as a three-family and 2.) the October 14, 1987 and February 2, 1999 opinions of Michael E. O'Brien, Esq. and Peter Strout respectively have already adjudicated this issue. Let me deal briefly with each of these in turn. With respect to the deeds, surely you don't contend that a self-serving statement in a deed reciting that the property then being conveyed is a legal three-family is dispositive of that issue. Bear in mind that this is not a situation where the grantees (in each case) are third party strangers to the property. Geraldine, Michael, and Richard were each present when the property was converted to a two family, and remained so for the following ten years (approximately), and thus, are legally charged with being aware of the Salem Zoning Code. Or put another way, is it your contention now that a self-serving statement in a deed can have the effect (as a matter of law) of superseding the local zoning code. With respect to the opinions, I can only respond that an opinion is only as good as the relevant factual and legal underpinning on which it is based. Michael E. O'Brien's October 14, 1987 "opinion" is so brief and conclusionary as to be absolutely worthless in my view. Mr. O'Brien states that as of the adoption of he Salem Zoning Ordinance on August 27, 1965 the property was a legally grandfathered three-family dwelling. This we do not dispute. Again, the question now is whether that grandfathered three-family F. Kelley Landolphi, Esq. 3 February 10,1999 use was ever abandoned. In particular, did anyone make Mr. O'Brien aware of the alleged abandonment when they solicited his October 14, 1987 opinion. Similarly, we do have some insight into the circumstances surrounding Mr. Strout's opinion, which may shed light on how Mr. O'Brien's opinion was obtained. You will recall that when Janet Andrews first informed me of your representation of the Cooneys on Friday, January 29, 1999, 1 told you that as a professional courtesy I would refrain from contacting the Building Inspector until after you had had a chance to sit down with the Cooneys and discuss our allegations, which (again) I detailed for you in that conversation. At that time Janet Andrews indicated that the meeting was to take place on Monday, February 1, 1999. You indicated you would get back to me immediately after your meeting. When I still hadn't heard back from you by Thursday afternoon, February 4, 1999, notwithstanding several unreturned phone calls placed to your office all during that week, I felt I had no recourse but to proceed with contacting Mr. Strout, which I did in person that afternoon, confirming my discussion in my February 5, 1999 confirmatory letter. It was only then that I learned from Mr. Strout that someone in the interim had solicited his February 2, 1999 "opinion" without informing him of the abandonment issue. He further indicated that had he been aware of same, he never would have written the letter. So much for professional courtesies. The initial feedback I got back from Mr. Strout was that if indeed the grandfathered non-conforming use had been discontinued for two years or longer, then it could not be revived without first obtaining a variance, although he wanted to reserve final judgement untill after he checked with the City Sollictor's office. He told me he would begin his investigation by writing the Cooneys to get their side of the story, which I believe is where things stand. I remain eager to resolve this issue responsibly and in good faith, and toward that end, I hope that you will address the issues I have in fact raised, and that following same we can discuss this issue further and at least narrow the genuine legal and/or factual issues. F. Kelley Landolphi, Esq. 4 February 10, 1999 . I will call you later today, or tomorrow. Very truly yours, John H. Carr, Jr. cc Mr. Peter Strout, Building Inspector Mr. & Mrs. William Russell Burns, Jr. F. KELLEY LANDOLPHI Attorney and Counselor at Law 70 Washington Street,Suite 401 /Salem, MA 01970/(978) 740-9715 February 4, 1999 John Carr, Esq. 7 River Street Salem, MA 01970 RE: Mr. & Mrs. Michael Cooney and Richard Cooney 20 Beckford Street Salem, MA 01970 Dear Mr. Carr: In accordance with our recent telephone conversations, this letter will confirm that I represent Mr. and Mrs. Michael Cooney and Mr. Richard R. Cooney, in their legal affairs. Thus, your inquiry with regard to the Cooneys' property located at 20 Beckford Street in Salem, Massachusetts, has been directed to the undersigned. Initially, let me state that although I am unsure as to who you actually represent, whether that be yourself, abutting neighbors, or as you reference, the so called, "Federal Street Association.",I trust that this letter will find itself submitted, through you, to the appropriate parties involved: During my informal conversation with you last week, you indicated that you believe that the Cooneys abandoned the use of 20 Beckford Street as a three family home at some unspecified time in the past, and it was used as a two family home. Thus, due to the alleged abandonment, you felt that the marketing and sale of the home as a three family home was improper if not illegal. You further indicated that same could give rise to civil culpability,as well as possible criminal culpability, and made inquiry regarding Michael Cooney's employment as a Massachusetts State Police trooper. As to the criminal issues, it is our position that no private party has any individual standing or right of action to apply for the issuance of a criminal complaint in the District Court Department against the Cooneys. I believe that the appropriate official to bring an application for criminal complaint before a magistrate of the District Court Department, would be the Salem zoning enforcement officer or the building inspector. I know after our conversation you did agree with me regarding standing issues relative to any criminal matter. Moreover, I am sure that you would also agree that any attorney who would take such a position would be dangerously close to violating the ethical provisions of the Rules of the Supreme Judicial Court, which preclude an attorney from filing or commencing criminal process in order to effectuate a gain in a civil matter, and makes same a matter of possible attorney discipline. Mr. Carr Page 2 With respect to the use of the property, and the allegations that the use has been abandoned, that allegation is false and is categorically denied by my clients. As you may aware, on October 28, 1988, Joseph and Geraldine Cooney sold their home, a three family home,to Mr. & Mrs. Michael Cooney and Geraldine Cooney as tenants in common. Again,I reiterate that the home was sold as a three family home and used as a three family home on October 28, 1988, when my clients first purchased the home from their parents, and prior thereto. On or about, June 25, 1990, Mr. &Mrs. Michael Cooney and Geraldine Cooney, as tenants in common, sold the property to Mr. & Mrs. Michael Cooney and Richard R Cooney, (Michael's brother), as tenants in common. Again,at the sale of the property in June of 1990, the property was used as a three family dwelling and such use has been consistent and uninterrupted. .You should note that in October of 1987, then Salem City Solicitor, Attorney Michael O'Brien, advised then Salem Building Inspector, William Monroe, that indeed 20 Beckford Street was a three family dwelling, and that its use at that time as a three family dwelling was permissible. Mr. O'Brien's legal opinion further found that the dwelling should be afforded the protection of Section VIII(E) of the Salem Zoning Ordinance relative to non-conforming permissible uses. I know that when we spoke on the telephone, you advised that the present building inspector, Peter Strout, took a contrary view to that expressed by former City Solicitor Michael O'Brien. You advised me that you were under the impression that Mr. Strout disagreed with the use of the property as a three family and felt that its use, marketing, and sale as a three family was illegal or otherwise improper. That is unequivocally not the case. Mr. Strout has formally advised the Cooneys that the property located at 20 Beckford St., is, in his opinion, a legally grandfathered three family dwelling, and concurs with the legal opinion of former City Solicitor Michael O'Brien. Clearly, since October of 1988, the Cooney family has utilized the property as a three family dwelling. Further, upon information and belief, the Cooney's have indicated that the property was used a three family dwelling for years prior thereto. I have reviewed the relevant portions of Article VIII, section E and section 8-5 of the City of Salem Zoning Ordinance. Moreover,I have reviewed the relevant sections of MGL C. 40A, s. 7, with respect to the use of the Cooney family property. After having reviewed those ordinances and statutes with my clients, and the aforementioned opinions of the City of Salem zoning and legal departments which has remained consistent since the decision of Solicitor O'Brien in October of 1987, that being that the property is a legal and lawful three family dwelling. I have further reviewed your allegations with regard to some number of witnesses who will testify that the property was used as a two family, and thus oppose the sale of it as a three family. I have reviewed this with both Mr. Cooney and his brother, Richard, and they disagree with those opinions. Although we choose not to avail ourselves of some factual dispute mechanism at this time, either in the courts or otherwise, the Cooneys do not accept any factual assertions from unnamed witnesses that they abandoned their use of their home. Mr. Carr Page 3 Accordingly, after having reviewed those statutes, after having reviewed the relevant opinions of appropriate officials of the City of Salem, any allegation that the Cooneys can not market the property or sell same as a three family dwelling is rejected. Although the Cooneys have no interest in pursuing litigation or other any administrative proceeding,the following should be noted. The initiation of any litigation against the Cooneys, either to enjoin or to otherwise effect or interfere with the sale of the real estate, as presently marketed, will result in the initiation of all lawful and responsible counterclaims, including a request for relief pursuant to MGL c. 231, s. 6F. Thus, whomever is making this inquiry of your legal office, should be well aware that although the Cooneys do not desire to become embroiled in litigation over the sale of their home, they intend to avail themselves of any and all necessary rights and remedies as they may be afforded to them under Massachusetts law. In short, and to repeat, it appears that this matter has already been settled by the appropriate legal and administrative officers of the City of Salem, and the Cooneys have absolutely no idea why this has been caused to occur at this time. Nonetheless, in a spirit of cooperation and courtesy, both to you as a professional and to whomever your clients may be, the Cooneys have authorized me to respond to your concerns. Finally, the Cooneys have requested that any communication in this regard be directed to me as their legal representative, and not to them or to their real estate broker, Mrs. Janet Hicks Andrews, of REMAX Unlimited Real Estate. Please note that I will be out of the office from Friday,February 5, 1999 through February 8, 1999, returning back on February 9, 1999, due to a long scheduled business trip. Should you care to discuss this matter, you may contact me at my office after February 9, 1999. However, should an emergency arise during that time,you may contact Attorney John McCarthy through my office, who will be covering my practice.. I appreciate your time and attention in this matter, and your courtesy in awaiting my response. Sincerely yours, Iam, F. Kelley Landolphi FKL/dad CC: Cooney family Janet Hicks Andrews John J. McCarthy,Esq John H. Carr, Jr., Esq. 7 River Street Salem, MA 01970 978-744-3400 Fax: 978-744-3400 February 9, 1999 By Hand Mr. Peter Strout, Building Inspector City of Salem One Salem Green Salem, MA 01970 Re: 20 Beckford Street, Salem, MA Dear Mr. Strout: Anticipating various defenses that may be raised relative to the above property--see my letter to you of February 5, 1999 (copy enclosed)--I thought you would find helpful the copy of Lord v. Zoning Board Of Anneals Of Somerset, 30 Mass. App. Ct. 226 (1991) which I hand-delivered to you yesterday. This is based on my understanding that your records indicate that no building permits have been pulled after 1972 contemplating said property's use as a three family. Thank you again for your continuing attention to this matter. V7H. yo r , Joharr, cc F. Kelley Landolphi, Esq. Mr. & Mrs. William Russell Burns, Jr. John H. Carr, Jr., Esq. 7 River Street Salem, MA 01970 978-744-3400 Fax: 978-744-3400 February 5, 1999 Mr. Peter Strout, Building Inspector City of Salem One Salem Green Salem, MA 01970 Re: 20 Beckford Street, Salem, MA Dear Mr. Strout: This will confirm our conversation at your office on Thursday, February 4, 1999 relative to 20 Beckford Street, Salem, MA, which has recently been listed for sale as a three-family residence: My understanding is that the following facts apply to this property: 1. That the property is located in an R-2 residential district; 2. That prior to 1972 (approximately) the property was a legally- grandfathered 3-family residential property then owned by Joseph F. Cooney, Jr. and Geraldine Cooney; 3. That Mr. and Mrs. Cooney (and their children) occupied the first floor, let the second floor to third parties, and let the third floor to Mr. Cooney's parents; 4. That beginning in 1972 (approximately), and continuing for 10 years (approximately), if not longer, Mr. & Mrs. Cooney discontinued the second floor apartment; and operated the building as a two-family dwelling, one apartment (theirs) consisting of the first two floors and the second apartment consisting of the third floor; 5. That at some point following the above ten-year period (approximately) a third apartment (located on the second floor) was re-established at the property; 6. That (as you indicated) said re-established three family use of the property was unaccompanied by any variance or special permit. Mr. Peter Strout, Building Inspector 2 February 5, 1999 1 have spoken with William Russell Burns Jr. and Elizabeth Burns, who have lived next door at 20 Beckford Street, Salem, MA for over thirty years, who can confirm the foregoing, as can others. I also note that with the exception of 5 individual years for which annual volumes were missing at the Salem Public Library (i.e. for 1978, 1981, 1984, 1985, and 1987), the annual Salem City Directories for the nineteen year period from 1970 to 1989 inclusive do not at any time list 3 dwelling units at said property. Inasmuch as Section VIII (E) G of the Salem Zoning Ordinance provides that a non-conforming use is "lost" if it is "abandoned or not used for a period of two years or more," could you kindly (in your capacity as zoning enforcement officer) investigate the situation and determine whether the property is in fact currently a legal two or three family dwelling and advise me accordingly. Thank you. 7arr, John 7 cc F. Kelley Landolphi, Esq. Mr. & Mrs. William Russell Burns, Jr. P.S. I should add that my understanding also is that the current owners of the property are two of the children of Joseph F. Cooney Jr. and Geraldine Cooney, namely Michael Cooney and Richard Cooney, and Michael Cooney's wife, and that they have owned said property since 1990 (approximately), having acquired title within the Cooney family. (As such, a(; least with respect to Michael and Richard, they are presumably aware of the above ten year hiatus.) Again, thanjk you for your attention to this m qnp,C. 5 John H. Carr, Jr., Esq. 7 River Street Salem, MA 01970 978-744-3400 Fax: 978-744-3400 February 10, 1999 Mr. Peter Strout, Building Inspector City of Salem One Salem Green Salem, MA 01970 Re: 20 Beckford Street, Salem, MA Dear Mr. Strout: As part of your continuing investigation into the issues raised in my February 4, 1999 conference with you relative to the above property, as confirmed in my letter to you of February 5, 1999, 1 enclose a letter I have received from the owners' attorney, F. Kelly Landolphi, together with my reply to him of todays date. V ly t`s John H. rr, J . cc F. Kelley Landolphi, Esq. (By Hand) Mr. & Mrs. William Russell Burns, Jr. (By Hand) John H. Carr, Jr., Esq. 7 River Street Salem, MA 01970 978-744-3400 Fax: 978-744-3400 February 11, 1999 By Hand John D. Keenan, Esq. Assistant Building Inspector 60 Washington Street Salem, Ma 01970 Re: 20 Beckford Street, Salem, MA 01970 Dear John: Pursuant to our brief conference earlier this afternoon, I am herewith enclosing copies of the following relative to the above property: 1. My February 5, 1999 letter to Peter Strout confirming the issues I verbally raised with him the previous afternoon; 2. Letter from F. Kelley Landolphi, Esq. to me dated February 4, 1999; 3. My February 9, 1999 letter to Peter Strout enclosing Lord v. Zoning Board of Appeals, 30 Mass. App. Ct. 226 (1991); 4. My February 10, 1999 letter to F. Kelley Landolphi, Esq. replying to his of February 4, 1999; 5. My February 10, 1999 letter to Peter Strout; 6. My February 11, 1999 letter to Peter Strout. I am also herewith enclosing copies of the following documents which Sally at the Building Department indicated are all the records which exist at the Building Department for said property: 7. The card for said property; 8. Letter from Michael E. O'Brien, Esq., City Solicitor, to William H. Munroe, Building Inspector, dated October 14, 1987; 9. Letter from Peter Strout, Zoning Enforcement Officer to Michael Cooney dated February 2, 1999. John D. Keenan, Esq. 2 February 11, 1999 If you have any questions, or if I can be helpful in any other way, please do not hesitate to contact me. Thank you for your attention to this matter. Very truly yours, John H. Carr, Jr. Enc. cc F. Kelley Landolphi, Esq. / Mr. Peter Strout, Zoning Enforcement Officer (By Hand) ✓ Mr. & Mrs. William Russell Burns, Jr. (By Hand) John H. Carr, Jr., Esq. 7 River Street Salem, MA 01970 978-744-3400 Fax: 978-744-3400 February 5, 1999 Mr. Peter Strout, Building Inspector City of Salem One Salem Green Salem, MA 01970 Re: 20 Beckford Street, Salem, MA Dear Mr. Strout: This will confirm our conversation at your office on Thursday, February 4, 1999 relative to 20 Beckford Street, Salem, MA, which has recently been listed for sale as a three-family residence: My understanding is that the following facts apply to this property: 1. That the property is located in an R-2 residential district; 2. That prior to 1972 (approximately) the property was a legally- grandfathered 3-family residential property then owned by Joseph F. Cooney, Jr. and Geraldine Cooney; 3. That Mr. and Mrs. Cooney (and their children) occupied the first floor, let the second floor to third parties, and let the third floor to Mr. Cooney's parents; 4. That beginning in 1972 (approximately), and continuing for 10 years (approximately), if not longer, Mr. & Mrs. Cooney discontinued the second floor apartment; and operated the building as a two-family dwelling, one apartment (theirs) consisting of the first two floors and the second apartment consisting of the third floor; 5. That at some point following the above ten-year period (approximately) a third apartment (located on the second floor) was re-established at the property; 6. That (as you indicated) said re-established three family use of the property was unaccompanied by any variance or special permit. Mr. Peter Strout, Building Inspector 2 February 5, 1999 1 have spoken with William Russell Burns Jr. and Elizabeth Burns, who have lived next door at 20 Beckford Street, Salem, MA for over thirty years, who can confirm the foregoing, as can others. I also note that with the exception of 5 individual years for which annual volumes were missing at the Salem Public Library (i.e. for 1978, 1981, 1984, 1985, and 1987), the annual Salem City Directories for the nineteen year period from 1970 to 1989 inclusive do not at any time list 3 dwelling units at said property. Inasmuch as Section VIII (E) G of the Salem Zoning Ordinance provides that a non-conforming use is "lost" if it is "abandoned or not used for a period of two years or more," could you kindly (in your capacity as zoning enforcement officer) investigate the situation and determine whether the property is in fact currently a legal two or three family dwelling and advise me accordingly. Thank you. V my y urs, John H. rr, Jr. cc F. Kelley Landolphi, Esq. Mr. & Mrs. William Russell Burns, Jr. P.S. I should add that my understanding also is that the current owners of the property are two of the children of Joseph F. Cooney Jr. and Geraldine Cooney, namely Michael Cooney and Richard Cooney, and Michael Cooney's wife, and that they have owned said property since 1990 (approximately), having acquired title within the Cooney family. (As such, at least with respect to Michael and Richard, they are presumably aware of the above ten year hiatus.) Again, thank you for your attention to this matter. John H. Carr, Jr., Esq. 7 River Street Salem, MA 01970 978-744-3400 Fax: 978-744-3400 February 11, 1999 By Hand Mr. Peter Strout, Building Inspector City of Salem One Salem Green Salem, MA 01970 Re: 20 Beckford Street, Salem, MA Dear Mr. Strout: This will) confirm our conversation at your office this morning wherein you indicated that neither you nor anyone from your Department will issue any building permit contemplating the above property's use as a three-family dwelling pending your investigation into whether or not said property is in fact a legal three-family dwelling. I have since spoken with Assistant City Solicitor, John D. Keenan, Esq., to whom I understand you have referred this matter, and he agrees this is the prudent thing to do in the interim. Thank you again for your continuing attention to this matter. Ve truly urs, John H. arr, Jr. cc John D. Keenan, Esq. F. Kelley Landolphi, Esq. Mr. & Mrs. William Russell Burns, Jr. (By Hand) r CITY OF SALEM - MASSACHUSETTS WILLIAM J.LAN Legal Department JOHN D.KEENAN City Solicitor citor 93 Washington Street Assistant City Solicitor 81 Washington Street Salem, Massachusetts 01970 60 Washington Street Tel:978-741-3868 Tel:978-741-4453 Fax:978-741-8110 Fax:978-740-0072 John H. Carr, Esq. February 15, 1999 7 River Street Salem, Massachusetts 01970 RE: 20 Beckford Street: Abandoned Nonconforming Use? Dear John: Thank you for dropping off a copy of the"record"as pertains to the above captioned matter. This date, I spoke with Attorney Kelley Landolphi, who as you know represents the property owners, Mr. and Mrs. Michael Cooney and Richard Cooney. Kelley has asked that I hold my opinion until he has an opportunity to respond for his clients. He suggested and I have agreed to provide a week for same. I have reviewed your position. I will review the case law in more detail. I do not doubt Bill & Betsy Burns' willingness to provide affidavits pertaining to the alleged Cooney family use of the second floor; however, would such statement(s) include structural changes to the second floor? Are they suggesting that the kitchen on the second floor was removed, then replaced at a later date? As I stated, I have been in the apartment in question as a friend of mine rented it sometime in 1996-97. Thank you for your attention to this matter. Very Ir ards, Jo D. Keenan, Esq. CC. Peter Strout, Building Inspector F. Kelley Landophi, Esq. William Lundregan, City Solicitor AFFIDAVIT OF WILLIAM RUSSELL BURNS, JR. AND ELIZABETH BURNS We, William Russell Burns, Jr. and Elizabeth Burns, husband and wife, being duly deposed, hereby make oath and say: 1. We have resided at 22 Beckford Street, Salem, Massachusetts since 1965. 2. 22 Beckford Street is next door to the subject property at 20 Beckford Street, Salem, Massachusetts. 3. Both properties are located in an R-2 zoning district. 4. In 1972 20 Beckford Street was owned by Joseph F. Cooney Jr. and Geraldine Cooney (hereinafter "Mrs. and Mrs. Cooney"). 5. On information and belief, between the enactment of the current zoning ordinance in 1965, and 1971 inclusive, 20 Beckford Street was a legally- grandfathered three-family dwelling, with one apartment use on each of the building's three floors. 6. The first floor was then occupied by Mr. and Mrs. Cooney and their four children, Michael (born in 1957 approximately), Joseph (born in 1960 approximately), Susan (born in December of 1963), and Richard (born in April of 1965); the second floor apartment was leased to third parties; and the third floor was leased to Mr. Cooney's parents. 7. Beginning in 1972 (approximately), and continuing for at least the following ten years, Mr. & Mrs. Cooney discontinued the three-family use of the properly, and operated the building as a two-family dwelling, occupying the first two floors, and continuing to rent out the third floor as a single apartment. 8. We believe the immediate reason for the discontinuation of the three-family use of 20 Beckford Street in 1972 (approximately) was to accommodate the Cooneys' need for additional space for their growing family. 9. Through much of the above ten year period all four of the Cooney children resided with their parents, and thus were aware of the discontinuation of the three-family use of the property. (Bear in mind that in 1972 Michael was approximately 15, Joseph was approximately 12, Susan was approximately 9, and Richard was approximately 7.) 10. At some point in the late 1980's (approximately) Joseph F. Cooney, Jr. and Geraldine Cooney obtained a divorce. 11. On information and belief, in October of 1988, Joseph F. Cooney, Jr. and Geraldine Cooney conveyed 20 Beckford Street to Mr. and Mrs. Michael Cooney (the former being their oldest child), and Geraldine Cooney, as tenants in common. 12. On further information and belief, in June of 1990 Mr. & Mrs. Michael Cooney and Geraldine Cooney conveyed 20 Beckford Street to Mr. & Mrs. Michael Cooney, and Richard Cooney, as tenants in common, thus effectively conveying Geraldine's interest to her youngest son. 13. The property has recently been listed for sale as a three-family dwelling, the legality of which we question. 14. We believe that the grand-fathered non-conforming three-family use of the property was discontinued and/or abandoned during the above ten-year period and was never legally revived or re-established thereafter. 15. I, Elizabeth Burns, have spoken with Hester Tinti, who (together with her husband, attorney William Tinti) has resided at 18 Beckford Street, Salem, Massachusetts since 1971, i.e. for all of the above period in question. 16. Mrs. Tinti indicated that she can and will corroborate the above facts and is willing to sign an affidavit to that effect. 17. We are opposed to any illegal three-family use of 20 Beckford Street. Signed under the penalties of perjury this 24th day of February 1999. Elizabeth Burns William Russell Burns, Jr. John H. Carr, Jr., Esq. 7 River Street Salem, MA 01970 978-744-3400 Fax: 978-744-3400 February 24, 1999 By Hand John D. Keenan, Esq. Assistant Building Inspector 60 Washington Street Salem, Ma 01970 Re: 20 Beckford Street, Salem, MA 01970 Dear John: I am herewith enclosing a joint Affidavit Of William Russell Burns, Jr. And Elizabeth Burns relative to the above zoning controversy. My understanding is that Mrs. Burns has spoken with Hester Tinti, who has co-owned and resided at 18 Beckford Street, Salem, MA, since 1971, and that Mrs. Tinti has indicated a willingness to file a corroborating affidavit. If you would like additional affidavits, or amplification of points raised in the enclosed, please advise and I will be happy to facilitate same. I appreciate your affording me an opportunity to fully respond to Mr. Landolphi's letter dated February 22, 1999, which I expect to be able to do on or before Tuesday, March 2, 1999. In the meantime, I find it noteworthy (and revealing) that nowhere in his six page, single-spaced letter does Mr. Landolphi deny Mr. & Mrs. Burns' basic factual assertion: that the legally-grandfathered three-family use of the property was discontinued for a ten-year period, at a minimum, beginning approximately in 1972. As a further preview of my detailed response to Mr. Landolphi's letter that is to follow, I enclose a copy of Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Court 664 (1987) which upheld a Judgment of the Plymouth Superior Court which, in effect, sustained a 1984 decision of the Board of Appeals of Lakeville, Mass. which concluded that two of three non-conforming uses at a particular property had been extinguished. There are a number of facts in that decision which are exactly on point with our own. One is that the Lakeville zoning ordinance, like Salem's, provided that a non-conforming use could be extinguished in either of two ways: i.e. by abandonment or alternatively, by a discontinuation of said use "for a ;j John D. Keenan, Esq. 2 February 24, 1999 period of two years or longer." Another is that a prior owner had allegedly discontinued the non-conforming uses and the zoning ordinance was being enforced against a subsequent contemporary owner. A third is that the non- conforming uses were found to have been discontinued by the prior owner for a period of ten years. I invite your attention to the legislative history of G.L.c. 40A, Sec. 6 that is found on pages 666-670 of the Bartlett decision. I particularly invite your attention to the following language found on pages 668-669 thereof: We think this case presents a proper occasion to consider whether the language of the third paragraph of the present G.L.c. 40A, & 6, countenances the further perpetuation of the equivalence of "discontinued' and "abandoned" in zoning ordinances and by-laws. It will be remembered that Sec. 6 now provides that "[a] zoning ordinance or by-law may define and regulate nonconforming uses and structures abandoned or not used for a period to two years or more." By this language the Legislature has, for the first time, provided express criteria which can be employed by cities and towns outside Boston that my be desirous of extinguishing nonconforming uses. There are two and only two, criteria: they are distinctly stated in the disjunctive: but a city or town may employ either or both. The first criterion is the familiar "abandonment" on which the cases have concentrated ever since the decision in the Pioneer Insulation case in 1954. As the decided cases show. an abandonment is something that can happen momentarily, without the lapse of any stated period of time. See, e.g., Dawson v. Board of Appeals of Bourne, 18 Mass. App. Ct. 962, 963 (1984), which is discussed in note 8 hereof. The other criterion in the new Sec. 6 is "not used for a period of two years or more." The language, taken on its face, appears to contemplate a simple cessation of a nonconforming use for a period of at least two years. If that is the meanino properly attributable to the phrase, then the Legislature has authorized the use of an objective standard which is easily understood by the public and easily administered by building inspectors and boards of appeal. If, on the other hand, we are to read into the phrase a requirement of voluntary or intentional action on the part of the owner of nonconforming premises amounting to a traditional "abandonment," such as has been done in the past with the word "discontinued," then the Legislature must be taken to have indulged in a tautology: the statute would have to be read as authorizing cities and towns to regulate f John D. Keenan, Esq. 3 February 24, 1999 nonconforming uses which have been "abandoned or abandoned for a period of two years or more." We reject any such construction as unreasonable. We think the Legislature, by its choice of the second criterion in Sec. 6. intended to authorize cities and towns to extinguish otherwise protected nonconforming uses if particular premises are not in fact used for the protected purposes for a minimum of two years. Emphasis added. Bear in mind that Salem's Zoning Ordinance is virtually identical to Lakeville's. Section VI II, E (6) of the Salem Zoning ordinance provides: Any nonconforming use of land or structure and any nonconforming structure shall lose whatever rights might otherwise exist to its continuation under this section if said use or structure shall be abandoned or not used for a period of two years or more. Thus, I would respectfully submit that while Mr. Landolphi cites the requirements for showing a non-conforming use has been extinguished by abandonment, he is completely missing this simple and straightforward alternative way of showing that a non-conforming use has been extinguished. Incidentally, I have no doubt that we could also meet (in spades) the traditional requirements for showing that the non-conforming third-family use has been abandoned, but as the Bartlett case clearly indicates, it is not necessary to have to do so. Again, I will be filing a somewhat more detailed response to Mr. Landolphi's February 22, 1999 letter on or before Tuesday, March 2, 1999. Thank you for your continuing attention to this matter. Very truly yours, John H. Carr, Jr. Enc. cc F. Kelley Landolphi, Esq. Mr. Peter Strout, Zoning Enforcement Officer Mr. & Mrs. William Russell Burns, Jr. John H. Carr, Jr., Esq. 7 River Street Salem, MA 01970 978-744-3400 Fax: 978-744-3400 March 15, 1999 By Hand John D. Keenan, Esq. Assistant City Solicitor 60 Washington Street Salem, MA 01970 Re: 20 Beckford Street, Salem, MA 01970 Dear John: Now that my schedule has eased up a bit I can write you the more comprehensive letter that I promised you in my February 24, 1999 letter, even though I think it should already be clear, based on the cases and factual data I have already submitted to you, that 20 Beckford Street is not a legal three-family dwelling. As I see it, the relevant factual and legal issues before us are as follows: 1. Was there, at least as a factual matter, a discontinuation of the nonconforming use for a period of two years or longer; 2. If so, what is the legal significance of such discontinuation vis-a-vis the nonconforming use; 3. Who has the burden of proof; 4. Will laches or statute of limitations or estoppal constitute affirmative defenses; 5. What relevance, if any, is the legal opinion of then City Solicitor Michael E. O'Brien dated October 14, 1987; 6. Assuming the nonconforming three-family use was extinguished as a result of being discontinued for two years or longer, can it be legally re-established thereafter without the prior approval of the Salem Zoning Board of Appeals via a variance or special permit; 7. Can the Salem Zoning ordinance be enforced against a current owner for the continuing zoning violations caused by a previous owner. Let me deal with each of these in turn: 1. WAS THERE IN FACT A DISCONTINUATION OF THE PREVIOUSLY- GRANDFATHERED THREE-FAMILY NONCONFORMING USE OF 20 BECKFORD STREET FOR A PERIOD OF TWO YEARS OR LONGER? Short answer: Yes Obviously this is the threshold factual question. Let me begin by reviewing what each side has submitted on this issue to date. On the one hand, I have submitted sworn affidavits from Bill and Betsy Burns, who have resided at 20 Beckford Street, Salem, MA since 1965, and from Hester Tinti, who has been a co-owner of 16 Beckford Street, Salem, MA since 1971. Both the Burns and the Tinti properties lie on either side of the Cooney property at 20 Beckford Street. Together these affidavits unabiquously aver the following material facts based on the first-hand knowledge of each of the affiants: a. That the grandfathered nonconforming three-family use was discontinued for a minimum ten year period, roughly from 1972 to 1982, if not longer; b. That during this minimum ten year period the property was exclusively used as a two-family dwelling; and c. That the nonconforming three-family use was re-established in the mid-to-late 1980's without the prior approval of the Salem Zoning Board of Appeals. I have also pointed out to you that the annual Salem City Directories do not contain any listing for three dwelling units at said property during the nineteen year period from 1970 to 1989 inclusive. Finally, I have suggested to the Cooneys' attorney, F. Kelley Landolphi, as far back as my initial telephone conversation with him on January 29, 1999, and in my February 10, 1999 letter to him (i.e. on page 2 thereof), that if the _ Cooneys contend otherwise, they should simply state who the three sets of tenants were during said ten year period, preferably in affidavit form. Of course, even though six weeks have since elapsed, he has still not done so. What Mr. Landolphi has done is write two (unauthenticated) letters, the first dated February 4, 1999, consisting of three pages, and the second dated February 22, 1999, consisting of six pages. Before I deal briefly with the specifics of each of these letters, at least those that are relevant, I want to underscore emphatically the following four points generally: 1. That apparently Mr. Landolphi no longer denies that the nonconforming three-family use was discontinued as a factual matter for the above ten year period; 2 2. That apparently the Cooneys' current position is that their father did not intend to abandon the nonconforming three-family use; 3. That six weeks after first being made aware of our precise allegations, Mr. Landolphi has still not submitted any counter affidavits; 4. That consequently the only evidence submitted to date are the Burns and Tinti Affidavits, which each aver said ten years discontinuation under oath. Now let me deal with each of Mr. Landolphi's letters specifically, starting with his February 4, 1999 letter to me, a copy of which you already have. Mr. Landolphi's February 4 1998 Letter Whether by intention or sloppiness, Mr. Landolphi's February 4, 1999 letter almost completely sidesteps the precise allegations we have made. Instead of focusing on the ten year period from 1972 to 1982 inclusive. he focuses his response almost exclusively on the period on or after October 28. 1988, which was never factually in dispute (although the legality of the three family use during this period very much is). However, there is one brief, passing reference to the period before October 28, 1989 in Mr. Landolphi's initial letter that I do want to draw your attention to. In the last sentence of the fourth paragraph of his February 4, 1999 letter Mr. Landolphi writes: Further, upon information and belief, the Cooney's [sic] have indicated that the property was used [as] a three family dwelling for years prior thereto. [Emphasis added] Note the "legalese" preamble - "On information and belief . . . " - which is typically used where one wants to make it clear that he or she is relying on information supplied by others so as not to be accused of being dishonest if that information later turns out to be false. But bear in mind that Michael and Richard Cooney grew up in the 20 Beckford Street property, and were 15 and 12 respectively when the discontinuation began. Why then do they need the benefit of this "legalese" preamble in order to answer the simple and straightforward factual question of how their childhood home was actually used from 1972 to 1982. Surely that doesn't require a legal degree. I respectfully submit that the reason Mr. Landolphi attached this preamble to his (then) general denial is the same reason why the Cooneys have not submitted an affidavit averring under oath that 20 Beckford Street was in fact 3 exclusively used as a three-family dwelling from 1972 to 1982 inclusive. Our contention is that they can't, without committing perjury. Mr. Landolphi's February 22, 1999 Letter For all the haughtiness and indignation in his February 4, 1999 letter, note that in Mr. Landolphi's February 22, 1999 letter, by when he had received written confirmation of our precise allegations, and thus could no longer credibly sidestep the issue, the above defense is dropped (or should I say "abandoned"). Mr. Landolphi states in the third paragraph of page 2 of said letter that he has spoken with Michael and Richard's father, Joseph F. Cooney, Jr., and that Mr. Cooney "advises" that he "never intended to abandon the three-family use of the property." [Emphasis added] This of course raises an altogether different issue (which I will discuss below), which in its own way is just as non-responsive to the threshold factual question I have posed as Mr. Landolphi's February 4, 1999 letter. Bear in mind that all I was trying to determine is whether or not we have a factual dispute as to whether or not the property was exclusively used as a two-family dwelling during the above ten year period. What Mr. Cooney intended, and whether or not that constituted "abandonment", are separate factual and legal questions. There is an ancient legal maxim to the effect that "silence indicates assent." Surely Mr. Landolphi and his clients have had ample time (i.e. over six weeks) in which to answer the simple and straightforward factual question I have posed. As I discuss in greater detail below, it is absolutely clear that under Massachusetts law the Cooneys have the burden of proving that 20 Beckford Street is currently a legal three-family dwelling. Having submitted no evidence on this issue, and indeed, having been completely unresponsive to the precise allegations clearly and unambiguously made in the Burns and Tinti Affidavits, I respectfully submit that the Cooneys have not met their burden on this issue, and that we are entitled to a finding of fact that there has been a ten year discontinuation of the nonconforming three- family use of the property, irrespective of what the legal significance of that fact is, which I will now address. 2. ASSUMING THERE HAS BEEN A DISCONTINUATION OF THE NONCONFORMING THREE-FAMILY USE OF THE PROPERTY FOR TWO YEARS OR LONGER, WHAT IS THE LEGAL SIGNIFICANCE OF THAT DISCONTINUATION? 4 Section 6 of Chapter 40A of the Massachusetts General Laws provides in relevant part: A zoning ordinance or by-law may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more. [Emphasis added] Section 8.5 (6) of the Salem Zoning ordinance, entitled "Nonconforming Use of Structure," provides: Any nonconforming use of land or structure and any nonconforming structure shall lose whatever rights might otherwise exist to its continuation under this section if said use or structure shall be abandoned or not used for a period of two (2) years or longer. [Emphasis added] You can see that the Salem ordinance tracks the state statute exactly. As you know from the decision in Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 (1987) which I provided you with on February 24, 1999, a nonconforming use can be extinguished in either of two ways: by abandonment, "which can happen momentarily, without the lapse of any stated period of time (Bartlett, supra, at p. 668)", or simply by not being used for a period of two years or longer. Here we contend that the second alternativela one makes it clear that the nonconforming three-family use has been discontinued for the requisite two year period, and thus extinguished for the very same reasons articulated in Bartlett. Besides the language that I quoted you from Bartlett in my February 24, 1999 letter, see also Ka-Hur Enterprises. Inc. v. Zoning Board of Appeals of Provincetown, 40 Mass. App. Cit. 71 (1996), where in, at page 75, the Appeals Court wrote: Accordingly, we conclude that the [trial] judge was correct in concluding that the term "discontinued" was not the legal equivalent of "abandoned" and that the simple cessation of an existing. nonconforming use for two years or more would result in the extinguishment of the nonconforming use. [Emphasis added] Here we have a "simple cessation" of the nonconforming use, not just for two years, but for at least ten. On that basis alone the nonconforming three-family use was extinguished certainly by 1975. Even though I need not deal with extinguishment based on a traditional "abandonment" theory, I will do so briefly here, since Mr. Landolphi has raised it as his apparent gn-ly defense. (In this regard I should stress that dealing with 5 Mr. Landolphi has been a little like "boxing with a shadow"; as soon as one defense is raised by him, and rebutted by me, he comes up with another one.) Before I deal with Mr. Landolphi's traditional abandoned defense, I want to make the following clear: a. That (in the interest of simplicity) our primary challenge is based on the discontinuation alternative articulated in the Bartlett decision; b. That the single case Mr. Landolphi has raised in support of his traditional abandonment theory, i.e. the Dobbs decision, is clearly distinguishable from our facts, is forty years old, and rests on a prior (i.e. pre 1975) version at Chapter 40A; c. That we nevertheless feel we can prove that Mr. Landolphi's traditional abandonment defense fails, even on its own terms. Traditionally, in order to show an abandonment of a nonconforming use it is necessary to show two elements: 1.) that the owner intended to abandon the nonconfoming use and 2.) that the owner engaged in voluntary conduct, whether affirmative or negative, which carried an implication of abandonment, Derby Refining Co. v. City of Chelsea, 407 Mass. 703 (1990). Unlike extinguishment of a nonconforming use based on discontinuation for two years or longer, "an abandonment is something that can happen momentarily, without the lapse of any stated period of time." Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 (1987), at page 669. Mr. Landolphi's letter cites Dobbs v. Board of Northhamoton, 339 Mass. 684 (1959) with respect to the above two criteria, saying that this was the case in which the Supreme Judicial Court "first visited . . . the issue of an abandonment of a nonconforming use." (Actually he is wrong on this, which should have been clear from a simple reading of the decision, which quoted Pioneer Insulation & Modernizing Corp. v. Lynn. 331 Mass. 560, 564-565 (19541, which in tum cited Paul v. Selectmen of Scituate, 301 Mass. 365 (1931) and Wayland v. Lee, 325 Mass. 637 (1948). But I think a closer examination of the Dobbs decision, which (again) is the only case Mr. Landolphi cites in support of his abandonment theory, actually does more harm than good to the Cooneys' position. The Dobbs case involved a decision of the Northhampton Zoning Board of Appeals granting a special permit allowing a beauty shop in a residential district, where previously those premises had been leased as a grocery store and thereafter by a leasee which sold and stored farm equipment. The basis for the Board's decision was a finding that a beauty shop nonconforming use was "less objectionable" than the previous nonconforming retail use, and also a provision of the local zoning ordinance which provided: Any nonconforming use may be changed to another nonconforming use . . . on permit from the board of appeals, such 6 new use . . . not to be detrimental or objectionable to the neighborhood. Basically there had been a two year nine month interval between the date the farm equipment business vacated the premises and the commencement of the beauty shop lease, during which time the owner did nothing to rent the premises other than speaking "to somebody in regard to putting a sales office there" on one occasion, putting two "for rent" signs in the building, one of which remained there for three years, and placing approximately five ads in the local newspaper. The Northhampton zoning ordinance provided that "when any nonconforming use has been discontinued for two (2) years it shall not be re- established, and the future use shall be in conformity with this ordinance." The Hampshire County Superior Court annulled the Board's decision, whereupon the owners of the property appealed. In overturning the Superior Court decision the Supreme Judicial Court did not find fault with the trial judge's application of the law, but only with the factual "grounds stated by the judge." At page 687 the Court wrote: But so far as an interest is shown in the owners' conduct in allowing the premises to be without a tenant for two years and nine months, making some effort to rent for business use, making no effort to convert to residential use, it is an intent to continue the business use. Failure to make any use of premises for an extended time might, we assume, evidence an intent to abandon any profitable use so that the nonconforming privilege would be lost, but we do not think the lapse of time here is such as toeo rmit that conclusion. We see no basis for concluding that such rental efforts as were made were in bad faith. The lapse of time was not so great that those efforts, and the absence of an attempt for residential use, lose all significance. The ordinance does not intend a loss of nonconforming use merely from non occupancy. . . [Emphasis added) As in Dobbs, nearly all of the traditional abandonment cases involve an alleged abandonment based on vacancy, as opposed to our situation where the former second floor was not left vacant for ten years, but was taken over and actually used by the Cooneys as part of their unit In this sense the Cooneys affirmatively converted the prior nonconforming (profitable) three-family use into a conforming two-family use. Thus neither of the two bases the Supreme Judicial Court relied on in Dobbs for its determination that there had been no intent on the part of the owner to abandon the nonconforming use--i.e. 1) "the absence of time was not so great" and 2) that there was "absence of an attempt for residential use"--are 7 present here. (Note the discontinuation in our situation is not nine months beyond the then two year statutory requirement but eight years.) But there is other language in the 1959 Dobbs decision which also does damage to the Cooneys' traditional abandonment defense. At page 687, the Court wrote: In the Pioneer case, we said (p. 565), "Thus nonoccupancy of the premises and suspension or cessation of business due to causes over which the owner has no control do not of themselves constitute a discontinuance; and lapse of time is not the controlling factor, although it is evidential, especially in connection with facts showing an intent to discontinue the use." However, an owner can by his diligent efforts have some control over a period of vacancy and if he allows an extended time to elapse with only desultory and equivocal action in the meantime, he runs the risk of a sustainable finding of abandonment and discontinuance. [Emphasis added] Also, at pages 686-687 the Dobbs Court wrote: We assume that evidence of things done or not done which carries the implication of abandonment will support a finding of intent whatever the avowed state of mind of the owner, so that the second of the two factors mentioned in the Pioneer case may, in appropriate circumstances, be controlling evidentially. [Emphasis added] Based on Mr. Landolphi's February 22, 1999 letter (specifically the third paragraph of page 2 thereof), the Cooneys' abandonment defense rests on what the father, Joseph F. Cooney, Jr., now says was his intent at the time, ie. that he never intended to abandon the nonconforming three-family use, even though (apparently) even he now acknowledges having discontinued it for ten years as a factual matter. Drawing on the above-quoted language of Dobbs (at pages 686-687), whatever the "avowed state" of Mr. Cooney's mind was or is, the "thing done," ie. the actual discontinuation of the nonconforming, three-family use, "will support a finding of intent" to abandon. In this regard I am also prepared to introduce further affidavits from Betsy Burns and William Burns It ("Billy") to the effect that the second floor premises were in fact modified at the time Joseph F. Cooney, Jr. and Geraldine Cooney took over the second floor, beginning in 1972 (approximately). In Betsy's case this involved her being on the second floor on several occasions during the above ten year period in connection with decorating advice Geraldine Cooney asked her to give. With respect to Billy, he was routinely accustomed to playing on the second floor with Richard Cooney ("Ricky") all during this period, since the two are exact contemporaries and grew up together as close friends. 8 Basically both will aver that they do not remember a kitchen being on the second floor during the above ten year period, and can only assume it must have been replaced later, probably by the father, Joseph F. Cooney, Jr., who ' was something of a handyman, and had a habit (according to his own statements) of doing work at the property without pulling permits. In this regard I also direct your attention to page 2 of Mr. Landolphi's February 14, 1999 letter wherein he states (in the third paragraph), "Moreover Mr. Cooney and his children have advised me that at no time was the wholesale removal of any kitchen performed at the property . . ." and (in the fourth paragraph) " . . . no kitchen was ever removed or replaced in either wholesale or complete fashion." (Emphasis added] I think that you probably have by now come to appreciate Mr. Landolphi's penchant for burying these little nuggets in pages of obfuscatory prose, and his almost "Clintonesque" habit of splitting hairs in his use of language. It would be interesting to hear the specifics (according to the Cooneys) of what physical changes were in fact made to the second floor, albeit not made in "complete" or "wholesale" fashion. Would it be something like the appliances were in fact removed but the piping was left in the wall, and the appliances stored in the basement? Again, I want to emphasize that since the Bartlett decision, and the 1975 amendments to Section 6 of Chapter 40A, "abandonment" and "discontinuation" no longer mean the same thing, as they were held to mean at the time of the 1959 Dobbs decision. Here again Mr. Landolphi is wrong and careless when he says in the second paragraph of page 4 of his February 22, 1999 letter that the "gravaman" of our complaint is the removal of the kitchen. No, it would be more accurate for him to have said that while we also feel we can prove a traditional abandonment case, it is far more simple, in light of the Bartlett decision, to prove that the nonconforming three-family use was extinguished due to its being discontinued for a period of two years or longer, which we respectfully submit we have done. Clearly the intent of the 1975 amendments to Chapter 40A (allowing the two year discontinuation alternative for extinguishing nonconforming uses) was to avoid the difficulties inherent in the abandonment theory by providing "an objective standard which is easily understood by inspectors and boards of appeal." Bartlett, supra, at p. 669. 3. WHO HAS THE BURDEN OF PROOF? It is "black letter" Massachusetts law that the party attempting to show the legality of a nonconforming use has the burden of proof. See Rafferty v. Sancta Maria Hospital, 5 Mass. App. Ct. 624 (1997), Collura v. Town of Arlington, 367 Mass. 881 (1975), Derby Refining Co. v. City of Chelsea, 407 Mass. 703 (1990), 9 Hall v. Zoning Board of Appeals of Edgarton, 28 Mass. App. Ct. 249 (1990), Building Inspector of Chathan v. Kendrick, 17 Mass. App. 928 (1983), Town of Bridgewater v. Chukran, 351 Mass. 20 (1966), Town of Wellesley v. Brossi, 340 Mass. 456 (1960).and Colabufalo v. Public Building Commissioner of Newton, 332 Mass. 748 (1955). 4. WILL LACHES OR STATUTE OF LIMITATIONS OR ESTOPPAL CONSTITUTE AFFIRMATIVE DEFENSES? Short answer: No. According to records at the Salem Building Department, no building permits have been pulled since 1972 for 20 Beckford Street, contemplating that property's use as a three-family dwelling. That being so, Lord v. Zoning Board of Somerset, 30 Mass. App. Ct. 226 (1991), interpreting section 7 of Chapter 40A, clearly holds that no such affirmative defenses apply. Note that in the Lord decision twelve (12) years had elapsed between the commencement of the discontinuation and the commencement of the town's enforcement action. See also Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 (1987) where the interval between the commencement of the town's enforcement action was twelve years, the length of the discontinuance was also twelve years, and where the zoning ordinance was enforced against a subsequent owner who had no apparent connection to the prior owner who had allowed the nonconforming use to lapse, unlike our situation where the current owners were literally present during most if not all of the above ten year discontinuation of the nonconforming use. 5. WHAT RELEVANCE, IF ANY, IS THE OCTOBER 14, 1987 OPINION OF THE THEN CITY SOLICITOR, MICHAEL E. O'BRIEN, ESQ. Short answer: None. This letter consists of two single conclusionary sentences, with absolutely no indication as to what authority Mr. O'Brien's opinion was based on. Even the United States Supreme Court does not render its decision by fiat or pronouncement. but supports them with carefully-reasoned legal analyses. Without such reasoning, capable of being understood and evaluated, Mr. O'Brien's opinion is simply not entitled to any credibility. 10 About the only way the conclusions in Mr. O'Brien's October 1987 opinion could make any sense is if he were then unaware of the ten year (minimum) discontinuance of the nonconforming use, which is to say that the Cooneys must not have disclosed this material fact. After all, the Bartlett decision had been published only seven months earlier, in March of 1987, which decision makes it clear (as discussed above) that a municipality may extinguish a nonconforming use in either of two ways: by abandonment (which requires no "stated period of time") or by a simple cessation of the nonconforming use for a period of two years or longer. While the circumstances surrounding how Mr. O'Brien's 1987 opinion was obtained are unclear, I think we can gain considerable insight by examining how Mr. Strout's February 2, 1999 letter was obtained, about which we do have information. On January 29, 1999 1 first made Mr. Landolphi aware of our precise allegations by telephone; we left it that he would discuss these allegations with his clients at a conference they had scheduled for February 1, 1999, and that he would telephone me immediately thereafter. I indicated that as a courtesy to him and his clients I would hold off contacting the building inspector until after I heard back from him on February 1. Instead of telephoning me immediately after his February 1, 1999 conference, as promised, the earliest I heard back from him occurred on February 5, 1999, when I received his February 4, 1999 letter. In the interim, having heard nothing from Mr. Landolphi by Thursday, February 4, 1999, notwithstanding several unreturned telephone calls to his office, I felt I had no recourse but to proceed with contacting Mr. Strout, which I did that afternoon. At that meeting Mr. Strout informed me that someone had come in on or about February 1, 1999 requesting a letter that 20 Beckford Street is a legal three-family dwelling, without informing him of the above ten year discontinuation of the nonconforming three-family use, which he was completely unaware of. He said that he simply checked the building department file for the property, which contained nothing other than Mr. O'Brien's October 14, 1987 letter, and wrote his February 2, 1999 letter entirely based on same. Mr. Strout also informed me that had he been aware of said ten year discontinuation he never would have written his February 2, 1999 letter. But there is an even more basic point, which renders any discussion of the circumstances surrounding Mr. O'Brien's 1987 opinion unnecessary and irrelevant. Section 8.5 (6) of the Salem Zoning Ordinance clearly and unambiguously provides, in relevant part: 11 a nonconforming use of land or structure . . .shall lose whatever rights might otherwise exist to its continuation . . . if said use shall be . not used for a period of two (2) years or more. [Emphasis added] As discussed above, that mandatory language (i.e. "shall lose", not "may be lost") was interpreted by the Appeals Court in both the 1987 Bartlett and the 1996 Ka-Hur Enterprises. Inc. decisions to mean exactly what it says, i.e. "that the simple cessation of an existing nonconforming use for two years or more would result in the extinguishment of the nonconforming use." Ka-Hur Enterprises. Inc. v. Zoning Board of Appeals of Provinceton, 40 Mass. App. Ct. 71, 74 (1996) [Emphasis added] I know of no language in either the Salem Zoning ordinance or Chapter 40A which carves out a special exception whereby a city solicitor can contravene the plain (and mandatory) language of a zoning ordinance by giving a contrary opinion, particularly one as short, conclusionary, and unsubstantiated as Mr. O'Brien's 1987 opinion is. Similarly, the Salem Zoning ordinance, and the state enabling act on which it is based, namely Chapter 40A, also prescribe the only means by which a new nonconforming use may be created, i.e. either by variance or by special permit, as the particular circumstances may require. Here too I know of no statutory or common law authority for the proposition that a city solicitor's opinion represents a valid alternative way of creating a legal nonconforming use. Finally, while the threat of litigation against the city is irrelevant to the zoning issues before us, let me address them briefly nevertheless. I would think that if the Cooneys have any claim, it is not against the City of Salem, particularly over a legal opinion that was not even rendered to them, but against their immediate grantors, going all the way back to the October 1988 deed from Joseph F. Cooney, Jr. and Geraldine Cooney, to Mr. and Mrs. Michael Cooney, Jr. and Geraldine Cooney, and I would also suggest that Joseph F. Cooney and Geraldine Cooney would be estopped from impleading the City of Salem, particularly to the extent that they did not disclose to Mr. O'Brien the ten year discontinuation of the nonconforming use. Given how the Cooneys have still not squarely admitted the ten year discontinuation six weeks after our initial allegations, and how Mr. O'Brien's October 14, 1987 legal opinion makes no sense whatsoever unless he was then unaware of said discontinuation (especially considering that the Bartlett decision had been published only seven months before), I think we can easily and reliably infer this nondisclosure. (As an aside, there is a rather interesting damages question. Can the rent collected from the illegal third apartment over the number of years involved offset any award of damages?) 12 Finally, I want to draw your attention to the apparent fact that both the October 1988 and June 1990 deeds each contain a recital to the effect that the property then being conveyed was a three-family dwelling. Based on my own experience, and the experience of at least one long- term conveyancer I have spoken with, a recital of the use of a property in a deed is extremely rare. I wonder, for instance, whether the deed into Joseph F. Cooney, Jr., and Geraldine Cooney also included such a recital. If not, could it be that the Cooneys realized that they were on rather tenuous legal grounds vis-a-vis their contention that the property was a legal three-family dwelling and were trying to do everything possible to improve their chances. How else can the use of such unusual language be explained? Surely even the Cooneys do not contend that if either the 1988 or 1990 deeds had recited, say, that the property then being conveyed was an airport or a power plant, instead of an alleged three-family dwelling, that recital alone doesn't make it so. In any event, the "bottom line" is that a self-serving statement in a deed is clearly no dispositive of whether or not the property then being conveyed is in fact a legal three-family dwelling. 6. ASSUMING THE NONCONFORMING THREE-FAMILY USE WAS EXTINGUISHED AS A RESULT OF BEING DISCONTINUED FOR TWO YEARS OR LONGER, CAN IT BE LEGALLY RE-ESTABLISHED THEREAFTER WITHOUT THE PRIOR APPROVAL OF THE SALEM ZONING BOARD OF APPEAL (i.e. VIA A VARIANCE OR SPECIAL PERMIT, AS THE PARTICULAR CIRCUMSTANCES MAY REQUIRE)? Short answer: No. The only way of creating a legal nonconforming use or structure is pursuant to Sections 9.4 and 9.5 of the Salem Zoning ordinance, dealing with "special permits" and "variances" respectively. The Cooneys have obtained neither. Thus the nonconforming three-family use of their property at 20 Beckford Street has been illegal from and after the second anniversary of the discontinuation of the nonconforming use, i.e. sometime in 1974, or by 1975 at the latest. 7. CAN THE SALEM ORDINANCE BE ENFORCED AGAINST A CURRENT OWNER, FOR THE CONTINUING ZONING VIOLATIONS CAUSED BY A PREVIOUS OWNER? 13 Bartlett v. Board of Anneals of Lakeville, 23 Mass. App. Ct. 644 (1987) clearly holds that the answer is yes. Note that in the Bartlett case there was a twelve year discontinuation by a prior owner of two previously-grandfathered nonconforming uses, resulting in an enforcement action brought by Lakeville against a subsequent current owner, which enforcement action was upheld by both the Plymouth County Superior Court and the Massachusetts Appeals Court. Note also that the current owners in our situation are not third party strangers to the property, as was apparently true in the Bartlett decision, but were actually present (in the case of Michael and Ricky Cooney) during most if not all of the ten year discontinuation of the nonconforming three-family use. 8. CONCLUSION: I think it useful in closing to review how we have gotten to this particular point, and where we go from here. It began with my meeting with Peter Strout in his capacity as zoning enforcement officer on Thursday, February 4, 1999. At that meeting I orally brought to Mr. Strout's attention that 20 Beckford Street is being marketed as a legal three-family dwelling, and why several of us feel that the property is not in fact a legal three-family. Those reasons were confirmed in my February 5, 1999 letter to Mr. Strout, and in my subsequent written submissions to you and to him, including letters, copies of Massachusetts appellate decisions, and affidavits from the immediate abutters. While Mr. Strout has preliminary indicated that he agreed with me that a simple two year cessation of a nonconforming use would extinguish that use, he also said he wanted to reserve final judgment until he received a legal opinion from you in your capacity as Assistant City Solicitor. You in turn have solicited written submissions from both myself and Mr. Cooney, which is where things stand. I want to state clearly and equivocally that no one is trying to persecute the Cooneys, or do anything other than uphold the Salem Zoning ordinance. If the Cooneys are legally entitled to have a three-family dwelling at 20 Beckford Street, then fine, but on the other hand, we believe, based on the above research, that they are not so entitled. We who live here feel very passionately about our neighborhood, and the need to protect it by insuring that the zoning ordinance is fairly and legally enforced. We certainly oppose any situation where an owner leaving Salem maximizes his or her profit by selling a property with a nonconforming use to which he or she is not entitled, thereby leaving behind all of the problems inherent in that use for the neighborhood to have to contend with, possibly for perpetuity. 14 We appreciate the opportunity you have given us to submit materials to aid you in your research relative to preparing your opinion for Mr. Strout. We also realize that this has necessarily taken more time than the fourteen days mandated in Section 9.2 (1) of the Salem Zoning ordinance by when the Building Inspector is supposed to reach his conclusions and respond in writing. On the other hand, in view of these materials, together with your own independent research, we feel that there should be no reason why we can't bring closure to this stage of the proceedings by the end of this week at the latest. After all, it has been 39 days since I first orally apprised Mr. Strout of our allegations on February 4, 1999, 38 days since my February 5, 1999 confirmatory letter to him, 32 days since I hand-delived all of the then correspondences to you on February 11, 1999, and 19 days since I mailed a copy of my February 24, 1999 letter to Mr. Landolphi concerning the Bartlett case. Surely 19 days is more than adequate time for him to have formulated a response. There is only one last matter, which pains me to have to bring up. We assume that yours will be a legal opinion, and not a political one. Yet none of us could help noticing the "cc" reference at the bottom of Mr. Landolphi's February 22, 1999 letter indicating a copy was being sent to Mayor Usovicz. We understand that Stan and Michael Cooney were at Salem High School at the same time, and are friends. It is also fairly obvious that the Mayor and I have had our differences. We can only assume that since you serve as Assistant City Solicitor at the pleasure of the Mayor, you were being given some kind of not-so-thinly disguised message. After all, what other reason could there be for sending a copy of Mr. Landolphi's February 22, 1999 letter to the Mayor? I hasten to add that so far I have been very impressed by your professionalism, objectivity, and fairness, and we only hope that it will all continue. Indeed, if Mr. Landolphi's "cc" was intended to influence the outcome of your opinion, for reasons having nothing to do with the law, I have every faith that you will resist such pressure. Thank you again for your continuing attention to this matter. Very truly yours, John H. Carr, Jr. / cc Peter Strout, Zoning Enforcement Officer (By Hand) Mr. and Mrs. William Russell Burns, Jr. Ms. Hester Tinti F. Kelley Landolphi, Esq. 15 i John H. Carr, Jr., Esq. 7 River Street Salem, MA 01970 978-744-3400 Fax: 978-744-3400 March 15, 1999 By Hand John D. Keenan, Esq. Assistant City Solicitor 60 Washington Street Salem, Ma 01970 Re: 20 Beckford Street, Salem, MA 01970 Dear John: This will confirm the telephone message I left on your office answering machine on Friday, March 12, 1999, wherein I indicated that I had spoken with Hank Cook, a real estate broker at Hunneman Caldwell Banker, who has a client interested in 20 Beckford Street as a three-family. Notwithstanding Ms. Andrews' promises that she would make potential buyers aware that there is at least a question as to the legality of the three- family use of 20 Beckford Street, which is in the process of being investigated by the Building Inspector in his capacity as Zoning Enforcement Officer, Mr. Cook informed me that not only did Ms. Andrews not mention that there is a controversy, she stressed that she has current written documents from the Building Inspector indicating that 20 Beckford Street is a legal three-family, citing Mr. Strout's February 2, 1999 letter. Whether she would have corrected this later is anyone's guess. Since we are all agreed that Mr. Strout's letter was written without his being aware of the ten year discontinuation of the nonconforming three-family use, and since he indicated to me on February 4, 1999 that he never would have written his February 2, 1999 letter had he been aware of said discontinuation, it seems to me that it would be prudent for Mr. Strout to rescind said February 2, 1999 letter pending the outcome of his investigation, including your (hopefully) imminent legal opinion. 1, for one, would hate to see this controversy further complicated by a contract to purchase the property as a three-family dwelling, if that use is not in fact legal. John D. Keenan, Esq. 2 March 15, 1999 Lest there be any doubt as to what Ms. Andrews promised, I enclose a copy of my February 10, 1999 letter to her attorney, F. Kelley Landolphi, in which I (contemporaneously) confirmed same in the first paragraph. Very truly yours, John H. Carr, Jr. Enc. / cc Peter Strout, Zoning Enforcement Officer (By Hand)J Mr. & Mrs. William Russell Burns, Jr. Ms. Hester Tinti F. Kelley Landolphi, Esq. er -John H. Carr, Jr., Esq. 7 River Street Salem, MA 01970 978-744-3400 Fax: 978-744-3400 March 23, 1999 By Hand John D. Keenan, Esq. Assistant City Solicitor 60 Washington Street Salem, MA 01970 Re: 20 Beckford Street, Salem, MA 01970 Dear John: I want to thank you for your March 22, 1999 legal opinion. With the utmost respect, however, I think you are wrong when you quote me (in the first sentence of your second paragraph) as "suggesting" that your opinion "may be politically tainted." It was not me who introduced politics into this matter, but attorney Landolphi, by indicating at the bottom of his February 22, 1999 letter (via a "cc") that a copy was being sent to the Mayor. I merely noted it, as I think I had a professional duty to do. On the other hand, if you refer back to the last page of my March 15, 1999 letter, I think you will find that, having noted it, I nevertheless took pains to make it clear that 1.) "1 have been very impressed by your professionalism, objectivity, and fairness . . ." and 2.) that "if Mr. Landolphi's "cc" was intended to influence the outcome of your opinion, for reasons having nothing to do with the law, I have every faith that you will resist such pressure." (Emphasis added) - Having reviewed your opinion, I can only say that my assessment and my faith were justified. Very truly yours, John H. Carr, Jr. P.S. I also want to state that I hope that it has been obvious from the beginning of this controversy that I have chosen to stick to the legal issues, and not respond to any number of irrelevant, factually reckless, and personally offensive i� side issues raised by Mr. Landolphi. This has not always been easy, which is why I can especially appreciate your taking umbrage over what you perceive was an unwarranted attack on your professional integrity, which (again) I respectfully submit was not the case. cc Peter Strout, Zoning Enforcement Officer Mr. and Mrs. William Russell Burns, Jr. Ms. Hester Tinti F. Kelley Landolphi, Esq. J John H. Carr, Jr., Esq. 7 River Street Salem, MA 01970 978-744-3400 Fax: 978-744-3400 February 9, 1999 Cc, c By Handm co Mr. Peter Strout, Building Inspector i*m c7 City of Salem m m w fl One Salem Greener s rn Salem, MA 01970 --� N � Re: 20 Beckford Street, Salem, MA Dear Mr. Strout: Anticipating various defenses that may be raised relative to the above property--see my letter to you of February 5, 1999 (copy enclosed)--I thought you would find helpful the copy of Lord v. Zoning Board Of Appeals Of Somerset, 30 Mass. App. Ct. 226 (1991) which I hand-delivered to you yesterday. This is based on my understanding that your records indicate that no building permits have been pulled after 1972 contemplating said property's use as a three family. Thank you again for your continuing attention to this matter. Very truly yours, John H. Carr, Jr. cc F. Kelley Landolphi, Esq. Mr. & Mrs. William Russell Burns, Jr. 226 30 Nias:,. , vv- -- Lord v. Zoning Board of Appeals of Somerset. !' Lord v. Zoning Board of Appeals of Somerset. t house as a two-family residence from 1976 until 1988, when the building inspector issued a cease and desist order, pro- tected that use under G. L. c. 40A, § 7, making a special permit unnecessary. The judge rejected this contention in his BENJAMIN R. LORD VS. ZONING BOARD OF APPEALS OF SOMERSET. decision, but the judgment does not reflect that ruling. The 1966 permit authorized an addition to the first floor, No. 90-P-993. consisting of two bedrooms and a living room. At the same Bristol. January 29, 1991.- March N. 1991. time the plaintiff converted the original bedroom and living } room on the first floor to a kitchen and bathroom. Between Present: ARMSTRONG. TINE. 8e J.COBS.JJ. 1967 and 1976 the plaintiff did additional work without ben- Zoning, Nonconforming use or structure, Building permit. Limitations, efit room a buildingthe permit, (which alreadythree bedrooms and a living nd .Statute of. } bathroom). In March, 1972, the plaintiff obtained a building 7, is alica- The ten-year limitationsperiod prescribed in G. L. c: 40A, § PP permit l0 construct a two-car garage. It i5 agreed that the ble only to nonconforming structures, and did not protect an owner's 1966 permit made no reference to two-family construction or ! nonpermissive two-family use of a house located in a single family resi- dence zoning district [227-228], nor was the six-year limitations period use and that neither the building inspector nor any other fl set forth in that statute applicable where the building permits under template a change town official was aware until.1988that the plaintiff was us- which the owner made structural changes did not conjng the house in that manner. from single-family to two-family use [228]. t: The second paragraph of G. L. c. 40A, § 7, as amended I through St. 1987, c. 481, § 1,' contains two separate limita- tions periods for actions brought to redress zoning violations: CIVIL ACTION commenced in the Fall River Division of the P District Court Department on August 29, 1988. the first, six years, applicable oo actions complaining a stru n The case was heard by John H. O'Neil, J. tural violations or use violations if "real property has been Murk L. Levin for the plaintiff. t improved and used in accordance with the terms of the origi- nal building permit"; the second, ten years, applicable to ac- Clement Brown for the defendant. ARMSTRONG, J. The plaintiff's house is located in a single- tions complaining of structural violations for which no permit family residence district; a special permit is required for a '' was given. (The limitations period runs in each case from the two-family residence. The plaintiff appeals from a judgment ,; t commencement of the alleged violation.) In contrast to the sustaining the board's denial of such a permit. There is noth- '`` six-year limitations period applicable to zoning violations os- ing to that aspect of the appeal. See Zaltman v. Board of sensibly authorized by a building permit, which explicitly Appeals of Stoneham, 357 Mass. 482, 484 (1970); Copley v. covers both structural violations and use violations, the ten- Board of Appeals of Canton; l Mass. App. Ct. 821 (1973);• .a year limitations period for zoning violations unsanctioned by Subaru of New England, Inc. v. Board of Appeals of Can- e; a permit covers only structural violations. The omission of ton, 8 Mass. App. Ct. 483, 486-488 (1979); Schiffone v. .j�' r protection for use violations not sanctioned by permit is plain Zoning Bd. of Appeals of Walpole, 28 Mass. App. Ct. 981,, on the face of the statute. 984 (1990). The complaint also sought a declaration that work done 'The amendments to § 7 effected by St. 1989, c. 341. § 21, if applica- I, under a building permit in 1966, coupled with his use of the ble to this case, would not affect the result. F IIq i li 228 30 Mass. App. Ct. 226-. : 30 Mass. App. Ct. 229 229 Lord r. Zoning Board of Appeals of Somerset. y' Commonwealth v.Coleman. , It is not contested that the ten-year limitations period pro- i tects the structural alterations done by the plaintiff without a . ,.' building permit. The plaintiff, however, urges that we inter- :i polate protection also for uses into the ten-year limitations ; COMMONWEALTH vs. ROBERT E. COLEMAN period, consistently (he argues) with our similar treatment of: ' (and a companion case'). G. L. c. 40A, § 6, first par., in Willard v. Board of Appeals 9. of Orleans, 25 Mass. App. Ct. 15 (1987). The interpolation '> er 589-90.7M Suffolk. October 5, 1990.- March U, 1991. there, however, was necessary to make sense of the statute, -,� � "to render [the] statute intelligible and so effectuate its obvi- Present: less. KAPLAN. s JAcoas.JJ, ous intent." Id. at 21. No similar confusion arises from the . > omission in § 7 of protection for nonpermissive USC Practice, Criminal, Required finding, Verdict, Assistance of counsel, Ar- gumenl by prosecutor. Rape. Conspiracy. Evidence, Fresh complaint. violations. The six-year limitations period does not protect the use of 1, At the joint trial of two defendants on multiple-count indictments charging the premises as atwo-family house. As in the case of the.i .. 4 aggravated rape, there was sufficient evidence to warrant findings by building permit to enclose a porch in Cape Resort Hotels, i ii l the jury that one of the defendanis was the perpetrator of at least two Inc. v. Alcoholic Lic. Bd. of Falmouth, 385 Mass. 205, 219 ,'; aggravated rapes as part of a joint enterprise and that the second de- 1982 , which presaged n0 change of use, the record here., ``.. fendant had committed four aggravated rapes with the aggravating fac- t ) p g g tors being either joint enterprise or serious bodily injury or both; conse- does not show that the 1966 building permit for the addition quently, the denial of the defendants' motions for required findings of contemplated introduction of two-family use. Nor, by 1972, [' not guilty as to the charges of aggravated rape was not error. [232-234] can it be said that a permit for a two-car garage signaled '.> A defendant who had been tried and found guilty on four counts of aggra- vated rape (by reason either of joint enterprise serious bodily injury or se that two families would be using the house. or both) while a codefendant was found guilty of only two similar The judgment is to be amended by adding a paragraph .`y. counts was not entitled to have the jury's verdict set aside either as declaring that the use of the plaintiff's house as a two-family inconsistent or as legally impossible. [234-236] At the trial of indictments charging aggravated rape, there was no error in dwelling is not protected by the provisions of G. L. c. 40A, admitting in evidence certain portions of the fresh complaint testimony § 7. As so amended, the judgment is affirmed. ��t' �' of a police officer and a nurse that included a recitation of the details allegedly recounted by the victim, where any discrepancies between the given by the victim consisted So ordered. fresh complaint testimony and testimony 1; largely of peripheral details and did not prejudice the defendants. [236] `ti There was no merit to contentions by criminal defendants that a portion of ..a trial attorney'sclosing' argument constituted ineffective assistance . �' [236-237], that the prosecutor's opening reference to a jigsaw puzzle „ . was improper (237], and that the judge's allowing references to "rape” ! and "victim" by the prosecutor and the witnesses constituted reversible •�'+ error [237]. - ! l r Y l 'Commonwealth vs. Nathan Lang. .I 4 E KELLEY LANDOLPHI Attorney and Counselor at Law 70 Washington Street,Suite 401 /Salem,MA 01970/(978)740-9715 February 22, 1999 Attorney John Keenan Assistant City Solicitor City of Salem 60 Washington Street Salem, MA 01970 RE: 20 Beckford Street, Salem, Mass. Mr. & Mrs. Michael Cooney Mr. Richard Cooney Dear Mr. Keenan: As you are aware the undersigned.represents Mr. and Mrs. Michael Cooney and Mr. Richard Cooney in their legal affairs. . As suchi the controversy surrounding their property located at 20 Beckford Street, Salem, Massachusetts, and allegations of an abandoned non- conforming use status of said property, apparently in the conjunction with the sale of same, has been referred to the undersigned. I note from the onset that you have been provided with various materials from Mr. John Carr, who is apparently objecting to the sale of the above- referenced property as a three-family home. I also note that this correspondence has been forwarded to Mr. and Mrs. Wm. R. Burns, Sr., who I can only assume also oppose the sale of the property. It is noted that the Burns are abutting homeowners to the Cooney property, but Mr. Carr is not. You are also in receipt of my letter dated February 4, 1999 to Mr. Carr, by which I attempted to put this matter to rest. Apparently, my attempts were unsuccessful. In this letter; however, l will address only those issues which pertain to the status of the building and not Mr. Carr's threats against my client, Michael Cooney, in his capacity as Massachusetts State Police officer and against the Cooney's real estate broker and firm, which may in fact be the basis of a complaint to the Massachusetts Board of Bar Overseers of the Supreme Judicial Court. John Keenan, Esq. Page 2 In short, the controversy in this matter arises from the claim of the Burns' and Carr that from 1972 to 1982, the Cooney property was allegedly utilized as a two-family dwelling. Thus, the continued use of the property as a three-family non-conforming dwelling, grandfathered under the Salem Zoning Ordinance, had allegedly been abandoned or discontinued. >f j Factually, the assertions in Carr's letter, as well as the controversy that he and Burns' have created with the city building inspector, the Cooneys and their C Realtor, have no merit. I have spoken with my clients in detail, and they have further spoken with their father, Jos. Cooney, a retired Salem Police officer, with regard to the property. Mr. Jos. Cooney advised that since he owned that property, he never intended to abandon the three-family use of the property. Moreover, Mr. Cooney and his children have advised me that at no time wast the wholesale removal of any kitchen performed at the property nor was any structural reformation done to same. Any minor changes to any of the interior of the property would have been de minimis, and again there were no structural changes to the integrity of the property as a three-family dwelling at any time during Joseph Cooney's ownership of the property, or the subsequent use and occupance of Mr. & Mrs. Michael of some. Again, because it forms the gravamen of the Carr/Burns complaint, I reiterate that according to my clients, no kitchen was ever removed or replaced, in either a wholesale or complete fashion. Moreover, it appears that Mr. Carr's review of the records of tenants and residents occupancy of the property was shoddy at best. You will note that the city census records indicates, from the last 20 year period of 1980 through 1999, that the property had been consistently used, taxed, and maintained as a three-family dwelling. I have used the 1980 date because it is 7 years prior to the date of the formal legal opinion issued by your predecessor, City Solicitor Michael O'Brien, Esq., when this same issue was raised regarding this property. As you are further aware, in October, 1987, City Solicitor O'Brien, in a letter to then building inspector Wm. Munroe, indicated that he had, "investigated the use of the above-entitled real estate and it is my opinion that it was a lawful John Keenan, Esq. Page 3 three-family prior to adoption of the zonina ordinance on Auaust 27, 1965, thus, ... its current use as a three-family is permissible." You will note that the City Solicitor's letter was filed with the City Clerk's office, and uses the word investigation of the use of the above-entitled real estate (emphasis mine). Mr. Carr may make of this letter what he wishes, and may come to his own analysis as to his opinion of the City Solicitor's opinion. Frankly, his position, (calling same, " worthless"), as to the value of this letter is irrelevant to my clients, and is more than somewhat disrespectful of the legal.investigative findings of your office. However, let me state in no uncertain terms that the relevance of Mr. O'Brien's letter to my clients should be clear and unambiguous, as it was absolutely and completely determinative of their decision to purchase the real estate from their parents in June of 1990. You should note that Mr. and Mrs. Michael Cooney will testify without equivocation that they relied upon the aforementioned opinion of the City Solicitor in making their decision to purchase the property, a three-family home, along with the financial benefits which run with same. You are undoubtedly aware of the decisions of the Massachusetts Supreme Judicial Court regarding the reliance of parties upon the decisions of the city and its officials regarding zoning issues. See, Richard R. Vazza, Trustee, vs. The Board of Appeals of Brockton, 359 Mass. 256 (1971). As the Vazza case clearly indicates, purchasers of real estate may rely upon applicable zoning ordinances or bylaws in determining the uses which may be made of the parcel they are buying, and other parcels in the same neighborhood, given the Supreme Judicial Court's recognition that the purchase of homes may be the largest single investment in an individual's life. I cannot understate the import that the decision of the City Solicitor as set forth in his October, 1987 letter, had upon Mr. and Mrs. Michael Cooney, and later upon Mr. Richard Cooney, in their decision to invest in the real estate. Parenthetically, I note that the deeds to this property indicate that the sale from Mr. and Mrs. Joseph Cooney to Mr. and Mrs. Michael Cooney, and later from Mr. and Mrs. Michael Cooney to Mr. Richard Cooney, were arms length transactions, and were not inter-family deeds for nominal consideration. Thus, it could easily be argued that there was detrimental reliance on behalf of John Keenan, Esq. Page 4 the Cooneys on the representations, investigation, and formal legal opinion of the city's highest appointed legal official at the time of their purchase of same. -1 I now refer back to the issue of abandonment of use. As you will also note, the Supreme Judicial Court has determined that two factors are necessary in order to evidence an abandonment of use. In general, those factors are intent to abandon and voluntary evidence of abandonment, either positive or negative. Mr. Carr and the Burns family may make what statements they wish regarding their position and their interpretation as to the use of the Cooney residence. However, it is factually uncontroverted that there was never any intention by Jos. Cooney or any successors in interest to abandon the three-family use, nor any voluntary evidence of an intent to abandon. As you state in your letter, in question form, let me tell you that there were no structural changes to this property, abandoning the use or otherwise transforming the configuration of the house from a three-family to a two-family dwelling. Next, the kitchen on the second floor was never completely removed and then fully replaced at a later date. What minor interior improvements the Cooneys may have made to their home, did not defeat or otherwise alter the use of the property. Moreover, it is clear and further uncontroverted that the property has been taxed by the city as a three-family, utilities have been provided as a three- family home, and mortgage financing of the Cooney property has been based upon its use as a three-family property. To suggest now that it is not same, which suggestion is made coterminous with the sale of the property, leaves the motivation of the objectors to the use of the home in great question. You may also be interested to know that on February 1, 1989, John Carr, in his prior position as a member of the Salem Historical Commission, before being removed by same by the current mayoral administration, raised his concern over the use of 20 Beckford Street to Michael Cooney, in relation to Mr. Cooney's application for a Certificate of Appropriateness to relocate a fence at 20 Beckford Street. } John Keenan, Esq. Page 5 It is also noted that the minutes of the Salem Historical Commission meeting on that date indicate that both Mr. and Mrs. Burns were present. at the meeting. As to Mr. Carr, he made reference to the issue of abandonment of use of the property during the meeting. Mr. and Mrs. Burns not only were present.during the meeting but spoke against the Cooneys, however they only made reference to their opinion of the aesthetic issues surrounding removal of a fence, including issues regarding the look of shrubs in the neighborhood. At this point in time no one ever make any inquiries or demands with the Building Inspector, or with city officials relative to an issue of non-abandon non- conforming use. Yet some ten years later, these individuals have chosen to create these unfortunate issues with the Cooney family. One must question the true motivation of individuals who wait ten years, and begin to raise such vacuous. objections at the point of sale of the property by this young family. Mr. Carr made reference to the Lord decision of the Appeals Court in 1991, only deals with the statute of limitation issues contained in MGL c. 40A, s.7. I would request that you look at the provisions of MGL c. 40A, s.6, with regard to abandonment of use, which is clearly topical in this case. I further note that ever since the Supreme Judicial Court has opined upon the issue of abandonment of a non-conforming use, first visited in the Dobbs case, and raised in relation to the above-referenced MGL c.40A, s.6, the court's decisions have always rested upon issues of intent and voluntary evidence of intent to abandon. Mr. Carr may feel that his version of the facts provide that this issue is clear cut. Obviously, we feel otherwise, and feel that any reliable review of same by a Justice of the Superior Court Department will result in the complete rejection of these meritless, false and questionably timed events. I have appreciated the professional courtesy extended to me by you and the legal department allowing me to respond to this issue which has been referred to you by the Building Inspector. Hopefully, your decision will finalize this issue, and you will realize that Mr. and Mr. Michael Cooney and Mr. Richard Cooney have every right to continue to market their property as a three-family home and sell same as such, and in doing so will sustain the opinion of your predecessor, City Solicitor Michael O'Brien. John Keenan, Esq. Page 6 Should you have any further questions or comments regarding this matter, please do not hesitate to contact me directly. Sincerely yours, I am, l� �U` / F. Kelley Landolphi FKL/dad cc: Mr. & Mrs. Michael Cooney Mr. Richard Cooney Hon. Stanley Usovicz, Mayor ,-Ne'fer Strout, Salem Building Inspector Mrs. Janet Hicks Andrews - REMAX Unlimited Real Estate John Carr m m CITY OF SALEM - MASSACHUSETTS WILLIAM J.LUNDREGAN Legal Department JOHN D.KEENAN City Solicitor Assistant City Solicitor 81 Washington Street 93 Washington Street 60 Washington Street Tel:978-741-3888 Salem, Massachusetts 01970 Tel:978-741-4453 Fax:978-741-8110 Fax:978-740-0072 20 9-eck q�l 94 AK - y /re., ,-7 (�a d/- 7//,� 'OpFZ `C S `� L ADMINISTRATION SALEM ZONING ORDINANCE `v�A�lu �� Art, Ig,§9.3 r� ARTICLE IX.ADMINISTRATION was in conformity at the time of enactment or amendment of this ordinance. Sec. 9-1. Enforcement. (4) The inspector of buildings shall maintain a record of all certificates of occupancy, and This ordinance shall be administered and en- copies shall be furnished to any person forced by the inspector of buildings. For the pur- having a proprietary or tenancy interest in g pose of such administration and enforcement, the the building affected. following procedure shall apply: Sec. 9.2. Violations. (1) No building or other structure shall be (a) Whenever a violation of this ordinance oc- erected, moved, added to or structurally al- curs or is alleged to have occurred, any person tered until a permit therefor has been is- may file a written complaint. Such complaint, � � suecl by the inspector of buildings. All ap• stating fully the causes and bases thereof, shall 1� plications £or such permits s all be in be filed with the inspector of buildings. He shall 1 / accordance with the requirements of the record promptly any such complaint,immediately building code. No building permit shall be investigate and take action thereon.The inspector issued unless all the provisions of this or- v of buildings shall also notify in writing the party dinance have been complied with, except requesting such enforcement of any action or re- k-/,D after written order from the board of ap- fusalto act and the reasons therefor, within four- peals. teen (14) days of receipt of such request. \� (2) No land shall be occupied or used and no (b) If the inspector of buildings shall find that building or part thereof hereafter created, any of the provisions of this ordinance are being erected, changed, converted or wholly or violated, he shall notify in writing the person re-- J partly altered or enlarged in its use or strut- Ispode for such violation, indicating the nature V ture shall be used, occupied or changed in of the violation and ordering the action necessary use until a certificate of occupancy shall to correct it. He shall order discontinuance of_A- ¢L have been issued therefor by the inspector legal uses of lan7, ui>1 Idines or structures, re- of buildings, stating that the proposed use moval of illegal buildings or structures or of ad- of the building or land conforms to the re- ditions, alterations or structural changes thereto; quirements of this ordinance. No building discontinuance of any illegal work being done; or permit shall be issued until an application any other action authorized by this ordinance to has been made for a certificate of occu- ensure compliance with or to prevent violation of panty.The certificate shall be issued in con- its provisions. 1�\ formity with the provisions of this ordi- (c) Violation of any of the provisions of this or- J nonce upon completion ofthe work. dinance shall constitute a misdemeanor. Any T o Ing gtc�i re or use sliall:be person who violates this ordinance shall,upon con- al ` lined, eri r hariged� extend viction thereof, be fined not more than one hun- t is f c sJia�l hau�e dred dollars $100.0 per violation and, in addi•, e r y lsgeetl2'� "3rbuildings. tion, shall pay a costs and expenses involved in The certificate of occupancy shall state spe- the case. Each day such violation continues shall cifically wherein the nonconforming strut- be considered a separate offense. Nothing herein ture or use differs from the provisions of contained shall prevent the city from taking such this ordinance. Upon enactment or amend- other lawful action as is necessary to prevent or ment of this ordinance,owners or occupants remedy any violation. of nonconforming structures or uses shall have three (3) months to apply for certifi• Sec. 9.3. Board of appeals. cates of occupancy, Failure to make such (a) A board of appeals is hereby established, application within three (3) months shall which shall consist of five (5),members to be ap- be presumptive evidence that the property pointed by the mayor, subject to the confirmation 53 t , CCitp of i§alem ' A1a.5garbU!6ettg Public Propertp Mepartment JBuilbinq Mepartment One sbalem green (978) 745-9595 Cxt. 360 Peter Strout Director of Public Property Inspector of Buildings Zoning Enforcement Officer March 24, 1999 Mr. Cooney 1 Hilltop Circle West Newbury, Ma. 01985 RE: 20 Beckford Street Dear Mr. Cooney: After reviewing the information provided by all the parties involved, my opinion is that it appears the property at 20 Beckford Street is a legal two family dwelling due to an abandonment of one of the dwelling units for more than two years. Contrary to my first opinion of the property and all the case law, affidavits, zoning ordinances and Massachusetts General Laws provided to me. At this paint I would recommend you seek relief from the Salem Zoning Board of Appeals for the third unit. Sincerel Peter Strout Zoning Enforcement Officer cc: Mayor Usovicz Attorney Landolphi Attomey Carr Attomey Keenan CITY OF SALEM - MASSACHUSETTS WILLIAM J.LUNDREGAN Legal Department JOHN D.KEENAN City Solicitor Assistant City Solicitor 81 Washington Street 93 Washington Street 60 Washington Street Tel:978-741-3888 Salem, Massachusetts 01970 Tel:978-741-4453 Fax:978-741-8110 Fax:978-740-0072 March 22, 1999 Peter Strout, Bldg. Insp. One Salem Green Salem, Massachusetts 01970 RE: 20 Beckford Street: Two or Three Family Dwelling2 Dear Inspector Strout: The following is in response to Attorney John Carr's written request of February 5, 1999 seeking a determination of whether the property at 20 Beckford Street remains today a nonconforming three family dwelling? Although the Ordinance requires a written response within fourteen (14) days, I did provide both parties the courtesy of responding more fully to this matter. Attorney F. Kelley Landolphi represents the Cooneys who own 20 Beckford Street. Attorney Carr's final response was delivered to me in hand on March 15, 1999. Further, I also want to state the obvious in light of Attorney Carr's suggestion that this opinion may be politically tainted. I do serve at the pleasure of Mayor . Usovicz who counsel has suggested is a friend of Mike Cooney. For the record, I too have known Mike Cooney for probably twenty years and consider him a friend. However, I also know Bill Burns and the Bill Tinti. None of this, however, has absolutely anything to do with the opinion rendered herein. My obligation as Assistant City Solicitor is to render an opinion to the Building Inspector based on the law. As an officer of the court, it is disheartening even to have to address such a degrading allegation. I have thoroughly reviewed the following materials provided by the parties: ❑ Peter Strout's February 2, 1999 correspondence to Michael Cooney; ❑ Attorney Landolphi's February 4, 1999 correspondence to Atty Carr; ❑ Attorney Carr's February 5, 1999 correspondence to Peter Strout; ❑ Attorney Carr's February 10, 1999 correspondence (4 pp.) to Atty Landolphi; ❑ Attorney Carr's February 10, 1999 correspondence (2 pp.) to Atty Landolphi; Page Two of Six March 22, 1999 Inspector Strout RE: 20 Beckford Street ❑ Attorney Carr's February 11, 1999 correspondence (2 pp.) to Peter Strout; ❑ Attorney Landolphi's February 22, 1999 correspondence (6 pp.) to this office; ❑ Attorney Carr's February 24, 1999 correspondence to this office; ❑ Attorney Carr's March 15, 1999 correspondence (15 pp.) to this office; a Attorney Carr's March 15, 1999 correspondence (2 pp.) to this office; ❑ Affidavit of William and Elizabeth Burns of February 24, 1999; ❑ Affidavit of Hester Tinti of March 10, 1999. The Facts It appears undisputed that at the time of the adoption of the Salem Zoning Ordinance (1965), the property was being used as a three family dwelling. The property is in the R-2 district, which does not permit, by right, three family dwellings. Thus, the property was afforded protection as a nonconforming use. At some time, the Cooney family, in order to accommodate its growing children, extended its use from the first floor only, to the first and second floors. Their neighbors, the Burns and the Tintis, suggest that this occurred on or about 1972- 1982. Although not dispositive, the City Annual Listing appears to confirm this being the case from at least 1971 through 1980. It appears the Cooney family lived on floors one and two, and Geraldine Cooney, Mr. Cooney's mother, lived on the third floor. In 1981, a James Sweet (machinist) appears in the Annual Listing at this property. This means that he moved into the apartment sometime in 1980 as the Annual Listing is as of January 1s`. Assuming he was renting the second floor, it would appear the three family use was"reestablished." There is no record of any relief sought from the Board of Appeal at that time. The building card reveals that there was an inquiry of the use to the building department in October 1987. Referencing a one-page opinion of then City Solicitor Michael O'Brien of 10/14/87, the card states, "This is a lawful three family." The solicitor's opinion was not filed with the City Clerk, nor have I been able to locate any additional information supporting same. The Cooneys have asserted, and I have no reason not to believe, that they never intended to abandon the use of their three family dwelling. It is certainly reasonable to expect that when the children grew up and moved out that they would again rent out the second floor. Either way, the "intent to abandon"does not need to be reached for purposes of this opinion, Page Three of Six March 22, 1999 Inspector Strout RE: 20 Beckford Street The Controlling Law Did 10 Beckford Sheet lose its nonconforming protection for three family use? Massachusetts General Laws Chapter 40A, Section 6, amended in 1975 (St. 1975, c. 808, § 3), provides, "A zoning ordinance or bylaw may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more." (emphasis added).' Unless sooner accepted by a particular city or town, this amendment took effect in every city and town except Boston on July 1, 1978. See Bartlett v. Bd. of Appeals of Lakeville, 23 Mass. App. Ct. 664, 667 n. 6 (1987). On May 5, 1977, by Ordinance 285, the City of Salem amended its Zoning Ordinance in compliance with c. 808 of the General Laws. (See attached copy of Ordinance).Z Since the change to Section 6, the courts have made clear that"abandoned"and "discontinued" are not synonymous. Otherwise, the Legislature enacted a mere 'tautology authorizing cities and towns to regulate nonconforming uses which have been "abandoned or abandoned for a period of two years or more." Ka- Hur Enterprises, Inc. v. Zoning Bd. Appeals of Provincetown, 424 Mass. 404, 406 (1997). Since May 5, 1977, the Salem Zoning Ordinance has provided the following: Any nonconforming use of land or structure and any nonconforming structure shall lose whatever rights might otherwise exist to its continuation under this section if said use or structure shall be abandoned or not used for a period of two (2) years or more.' ARTICLE VIII. Sec. 8-5 (6)(emphasis added). Prior to 1975, there would be a need to show an intent to abandon, even extended nonuse would not have resulted in a forfeiture of Section 6's nonconforming protections. 2 Although the City Council approved the amendment on April 28, 1977, it did not take effect until later endorsed by the Mayor. 'As it was not necessary for this determination, I have not addressed whether this two-year period was to be applied retroactively as of May 5, 1977. Page Four of Six March 22, 1999 Inspector Strout RE: 20 Beckford Street It appears the "not used"clock started ticking May 5, 1977. Thus, on May 6, 1979, the 20 Beckford Street property lost its nonconforming use status as a three family. What Is the Significance of the Solicitor's Opinion and Building Card Notation of October 1987.E As a general rule, a municipality is not estopped from exercising its power to enforce its zoning regulations notwithstanding the fact that the unlawful actions by a landowner were done in good faith and in reliance upon the action of municipal officials. MCLE Massachusetts Zoning Manual, § 2.44 (1995)(citing Bldg Insp. Lancaster v. Sanderson, 372 Mass. 157, 162 (1977)(the right of the public to have its zoning by-law enforced cannot be forfeited by the actions of its officials); Marblehead v. Derry, 356 Mass. 532 (1969); Dresser v. Insp. of Bldgs. Southbridge, 348 Mass. 729 (1965); Manchester v. Phillips, 343 Mass. 591 (1962); Seekonk v. Anthony, 339 Mass. 49 (1959). I did review the case, Vazza v. Bd. Appeals Brockton, 359 Mass. 256 (1971), cited by Attorney Landolphi, and I do not find that inconsistent with this general rule. In Vazza, the Court stated, "Purchasers are entitled to rely on applicable zoning ordinances or by-laws in determining the uses which may be made of the parcel they are buying. . . This determination must start with a reading of the zoning ordinances or by-laws existing at the time of the purchase." Vazza at 263. Since May 1977, the Salem Zoning Ordinance provided for discontinuance after two years. (See discussion supra). Solicitor O'Brien's correspondence of October 14, 1987 to Building Inspector William Munroe states that after investigation, it was his opinion that 20 Beckford was a lawful three family prior to the adoption of the Zoning Ordinance and thus should be afforded protection as a nonconforming use. Today, no one contests its status in 1965. I have not been able to ascertain what was encompassed in Solicitor O'Brien's"Investigation"of the use of 20 Beckford Street. His determination, however, was reasonable in light of fact that he did not have affidavits of neighbors complaining of illegal use. Solicitor O'Brien's opinion was some seventeen years after the property was again used as a three family (1980). The Burns and Tintis have also been neighbors to this parcel all this time. I am not aware of any notice or request to investigate this alleged illegal use but for the request of February 1999. Page Five of Six March 22, 1999 Inspector Strout RE: 20 Beckford Street Limitation of EnforcementActions. Massachusetts General Laws Chapter 40A, Section 7 provides in pertinent part: if real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action, criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said permit or the removal, alteration, relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of this chapter, or any ordinance or by-law adopted thereunder, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within six years next after the commencement of the alleged violation of the law; See also Lord v. Zoning Bd. of Appeals of Somerset, 30 Mass. App. Ct. 226 (1991)(where plaintiff lived in single-family residential district, pulled permits for addition to first floor and two car garage and used as two family for over ten years, inspector was right in issuing cease and desist as permits did not reference two-family use). Simply put, Section 7 does not provide for a statute of limitations for uses not sanctioned by a building permit. The building reference card for 20 Beckford Street shows a date when a permit was issued on October 15, 1987. (See attached copy). There is no permit number provided, nor a description of any work performed. There is no mention of a conversion from a two to three family or any other improvements to be made. The card and file for this property do not have any building permits for work done at this property — at any time. Relying on Solicitor O'Brien's opinion of the previous day, the card succinctly states, "This is a lawful three family." There is also a "3" in the "No. of Families" box. William Munroe who was building inspector at the time has since passed away. It appears that this opinion was solicited in connection with sale of the property in 1988. With the information presented to Solicitor O'Brien and Inspector Munroe in 1987, their statements were correct. There is no reason to doubt that opinion was given by a good faith effort. Page Six of Six March 22, 1999 Inspector Strout RE: 20 Beckford Street As 20 Beckford Street was not improved and used in accordance with a building permit issued by Inspector Munroe, the limitations period provided Section 7 does not provide protection for the three family use. If the owners had pulled permit(s) in October 1987 to convert or improve 20 Beckford Street as a three family and continued to use as such today, that use would be protected as the statute of limitations would have run in October 1993. Conclusion As the three family use of 20 Beckford Street was discontinued for more than two years (approximately May 5, 1977 until 1980 sometime), and that 20 Beckford Street has not been improved and used in conformance with a building permit pulled on or before February 5, 1993, the property today can only be used as a two family dwelling. Notwithstanding any potential equitable arguments of the situation, my determination is based solely on the applicable zoning statutes, the case law and the Salem Zoning Ordinance. Should the present owners or future owners want to use 20 Beckford Street as a three family, they must seek appropriate relief from the Board of Appeals. Please inform them of same. I hope this opinion has answered your question. Please do not hesitate to contact me with any questions. Very best regards, A� JO D. KEENAN, A ANT CITY SOLICITOR Jdk. Iem.20beckford ENC. CC. John Carr, Esq. F. Kelley Landophi, Esq. William Lundregan, City Solicitor AFFIDAVIT OF WILLIAM RUSSELL BURNS, JR. AND ELIZABETH BURNS We, William Russell Burns, Jr. and Elizabeth Burns, husband and wife, being duly deposed, hereby make oath and say: 1. We have resided at 22 Beckford Street, Salem, Massachusetts since 1965. 2. 22 Beckford Street is next door to the subject property at 20 Beckford Street, Salem, Massachusetts. 3. Both properties are located in an R-2 zoning district. 4. In 1972 20 Beckford Street was owned by Joseph F. Cooney Jr. and Geraldine Cooney (hereinafter "Mrs. and Mrs. Cooney"). 5. On information and belief, between the enactment of the current zoning ordinance in 1965, and 1971 inclusive, 20 Beckford Street was a legally- grandfathered three-family dwelling, with one apartment use on each of the building's three floors. 6. The first floor was then occupied by Mr. and Mrs. Cooney and their four children, Michael (born in 1957 approximately), Joseph (born in 1960 approximately), Susan (born in December of 1963), and Richard (born in April of 1965); the second floor apartment was leased to third parties; and the third floor was leased to Mr: Cooney's parents. 7. Beginning in 1972 (approximately), and continuing for at least the following ten years, Mr. & Mrs. Cooney discontinued the three-family use of the property, and operated the building as a two-family dwelling, occupying the first two floors, and continuing to rent out the third floor as a single apartment. 8. We believe the immediate reason for the discontinuation of the three-family use of 20 Beckford Street in 1972 (approximately) was to accommodate the Cooneys' need for additional space for their growing family. 9. Through much of the above ten year period all four of the Cooney children resided with their parents, and thus were aware of the discontinuation of the three-family use of the property. (Bear in mind that in 1972 Michael was approximately 15, Joseph was approximately 12, Susan was approximately 9, and Richard was approximately 7.) 10. At some point in the late 1980's (approximately) Joseph F. Cooney, Jr. and Geraldine Cooney obtained a divorce. 11. On information and belief, in October of 1988, Joseph F. Cooney, Jr. and Geraldine Cooney conveyed 20 Beckford Street to Mr. and Mrs. Michael Cooney (the former being their oldest child), and Geraldine Cooney, as tenants in common. 12. On further information and belief, in June of 1990 Mr. & Mrs. Michael Cooney and Geraldine Cooney conveyed 20 Beckford Street to Mr. & Mrs. Michael Cooney, and Richard Cooney, as tenants in common, thus effectively conveying Geraldine's interest to her youngest son. 13. The property has recently been listed for sale as a three-family dwelling, the legality of which we question. 14. We believe that the grand-fathered non-conforming three-family use of the property was discontinued and/or abandoned during the above ten-year period and was never legally revived or re-established thereafter. t 5. I, Elizabeth Burns, have spoken with Hester Tinti, ho (together with her husband, attorney William Tinti) has resided at 1-99eckford Street, Salem, ( Massachusetts since 1971, i.e. for all of the above period in question. 16. Mrs. Tinti indicated that she can and will corroborate the above facts and is willing to sign an affidavit to that effect. 17. We are opposed to any illegal three-family use of 20 Beckford Street. Signed under the penalties of perjury this 24th day of February 1999. Elizabeth Eliz eth Burns illiam Russell Burns, Jr. AFFIDAVIT OF HESTOR TINTI I, Hestor Tinti, being deposed, hereby make oath and say: 1. 1 have resided at, and have been an owner of, 16 Beckford Street, Salem, Massachusetts since 1971. 2. 16 Beckford Street is adjacent to the Cooney property at 20 Beckford Street, Salem, MA 01970, i.e. immediately to the south thereof, just as the Burns property is adjacent to the Cooney property immediately to the north thereof. 3. 1 have reviewed the Affidavit of William Russell Burns Jr. and Elizabeth Burns, dated February 24, 1999. 4. 1 agree with the Burns that the Cooney property was used exclusively as a two family dwelling for a minimum ten year period, roughly from 1972 to 1982, if not longer. Signed under the penalties of perjury this 1d (, ay of March 1999. Hestor 7inti April 28, 1977 Section VI. Section VII "Supplementary Regulations" is amended by adding after Paragraph L, thereof, the following: M. Religious or Educational Institutions "No portion of this Zoning Ordinance shall be interpreted to regulate or restrict the use of land or structure for religious purposes or for educational purposes on Is owned or leased by the Commonwealth of Massachusetts or any of its agencies, sub- divisions or bodies politic or by a religious section or denomination, or by a non- profit educational corporation, provided, however, that such land or structures must comply with all the requirements of the Zoning Ordinance concerning the bulk and height of structures, yard size, lot area, setbacks, open space, parking and buildinE coverage requirements of the Zoning District in which it is located." Section VII. Section IR "Administration" paragraph F "Amendments" is amended by adding, at the end thereof, the following" "No proposed Zoning Ordinance which has been unfavorably acted upon by a city Council shall be considered by the city council within two years after the date of such unfavorable action unless the adoption of such proposed ordinance is recommended in the final report of the Planning Board." Section VIII. Section IX "Administration" paragraph F "Amendments" is hereby amended by deleting in subsection 2, the words "twenty days" and inserting in its place the words "Twenty-one days". _ Section IX. Section V "Use Regulations" paragraph 10, "Extension of non-conformity" is amended by adding at the end thereof, the following" _ "Provided, however, that such change, extension, enlargement or expansion shall not be substantially more detrimental than the existing nonconforming use to the neighborhood, nor shall this paragraph apply to billboards, signs, or other advertis- ing devices." Section X. Section IS "Administration" paragraph D, "Special Permits" is amended by deleting the words "Section 17 of as they appear in the third paragraph of said paragraph D and by adding the end of said paragraph D, the following: "Construction or operations under a special permit shall conform to any subsequent amendment of this Ordinance unless the use or construction is commenced within a period of not less than six (6) months after the issuance of the permit and in cases involving construction, unless such construction is continued through to completion, as continuously and expeditiously as is reasonable." ® Section XI. Section VIII "Nonconforming use of land or structure and any nonconform- ing structure shall lose whatever rights might otherwise exist to its continuation under this section if said use or structure shall be abandoned or not used for a period of two years or more." Section XII. Section IX "Administration" paragraph B "Violations" is amended by adding at the end of the first paragraph thereof the following: DATE OF PERMIT L MIT No. OWNER LOCATION : ID/ 15/87 ST" `� K� Ulf It + 20 Beckford St. R-2 1 t. f f- „ ± ±,� DTV STRUCTURE MATERIAL DIMENSIONS No.OF STORIES, No.OF ARD FAMILIES WARD 2 I I cosi DWELLING BUILDER This is a lawful three—family (SEE CORRESPONDENCE IN ADDRESS FILE) It cod z - -9 S MICHAEL E. O'BRIEN CITY SOLICITOR LEONARD F. FEMINO 93 WASHINGTON STREET g ASSISTANT CITY SOLICITOR '�'`°'+��•1Py and 93 WASHINGTON STREET 81 WASHINGTON STREET and CITY OF SALEM ONE BROADWAY SALEM, 431 1 01970 74MASSACHUSETTS BEVERLY, MA 01915 7444.3.33363 745.4311 921.1990 Please Reply to 81 Washington Street Please Reply to One Broadway October 14 , 1987 William H. Munroe, Building Inspector City of Salem One Salem Green Salem, Massachusetts 01970 Re: Joseph F. Cooney, Jr. 20 Beckford Street Dear Mr. Munroe: Please be advised I have investigated the use of the above entitled real estate and it is my opinion that it was a lawful three-family prior to adoption of the Zoning Ordinance on August 27 , 1965 . Accordingly, it should be af- forded the protection of Section VIII (E. ) of the aforemen- tioned ordinance relative to nonconforming uses and, thus, it' s current use as a three-family is permissible. 7ytmy yours, . Michael E. O' Brien City Solicitor MEO/jp n n n c: L in • J MICHAEL E. O'BRIEN LEONARD F. FEMINO CITY SOLICITOR ''L � ASSISTANT CITY SOLICITOR 93 WASHINGTON STREET - �°'ao+cy0� 93 WASHINGTON STREET and and 81 WASHINGTON STREET CITY OF SALEM ONE BROADWAY SALEM, MA 01970 MASSACHUSETTS BEVERLY, MA 01915 745.4311 745-4311 744.3383 921.1990 Please Reply to 81 Washington Street Please Reply to One Broadway October 14 , 1987 William H. Munroe, Building Inspector City of Salem One Salem Green Salem, Massachusetts 01970 Re:U Joseph F. Cooney, Jr. 20 Beckford Street Dear Mr. Munroe: Please be advised I have investigated the use of the above entitled real estate and it is my opinion that it was a lawful three-family prior to adoption of the Zoning Ordinance on August 27 , 1965. Accordingly, it should be af- forded the protection of Section VIII (E. ) of the aforemen- tioned ordinance relative to nonconforming uses and, 'thus, it ' s current use as a three-family is permissible. V ry t my/yours, Michael E. O' Brien City Solicitor MEO/jp c3 ry�, Lo 3Z l7 u1 i5 �Ye l �J) � N C� . Citp of *alem, A1a!5garbu!5ett!5 Public Propertp Department �3uilbing Department One balem Oreen (976) 745-9595 (est. 360 Peter Strout - Director of Public Property Inspector of Buildings Zoning Enforcement Officer March 24, 1999 Mr. Cooney 1 Hilltop Circle West Newbury, Ma. 01985 RE: 20 Beckford Street Dear Mr. Cooney: After reviewing the information provided by all the parties involved, my opinion is that it appears the property at 20 Beckford Street is a legal two family dwelling due to an abandonment of one of the dwelling units for more than two years. Contrary to my first opinion of the property and all the case law, affidavits, zoning ordinances and Massachusetts General Laws provided to me. At this point I would recommend you seek relief from the Salem Zoning Board of Appeals for the third unit. Sincerely- /Peter Strout Zoning Enforcement Officer cc: Mayor Usovicz Attorney Landolphi Attorney Carr Attorney Keenan C O CITY OF SALEM - MASSACHUSETTS WILLIAM J.LUNDREGAN Legal Department JOHN D.KEENAN City Solicitor Assistant City Solicitor 81 Washington Street 93 Washington Street 60 Washington Street Tel:976-741-3888 Salem, Massachusetts 01970 Tel:978-741-4453 Fax:978-741-8110 Fax:978-740-0072 March 22, 1999 Peter Strout, Bldg. Insp. One Salem Green Salem, Massachusetts 01970 RE: 20 Beckford Street: Two or Three Family Dwelling? Dear Inspector Strout: The following is in response to Attorney John Carr's written request of February 5, 1999 seeking a determination of whether the property at 20 Beckford Street remains today a nonconforming three family dwelling? Although the Ordinance requires a written response within fourteen (14) days, I did provide both parties the courtesy of responding more fully to this matter. Attorney F. Kelley Landolphi represents the Cooneys who own 20 Beckford Street. Attorney Carr's final response was delivered to me in hand on March 15, 1999. Further, I also want to state the obvious in light of Attorney Carr's suggestion that this opinion may be politically tainted. I do serve at the pleasure of Mayor . Usovicz who counsel has suggested is a friend of Mike Cooney. For the record, I too have known Mike Cooney for probably twenty years and consider him a friend. However, I also know Bill Burns and the Bill Tinti. None of this, however, has absolutely anything to do with the opinion rendered herein. My obligation as Assistant City Solicitor is to render an opinion to the Building Inspector based on the law. As an officer of the court, it is disheartening even to have to address such a degrading allegation. I have thoroughly reviewed the following materials provided by the parties: o Peter Strout's February 2, 1999 correspondence to Michael Cooney; ❑ Attorney Landolphi's February 4, 1999 correspondence to Atty Carr; ❑ Attorney Carr's February 5, 1999 correspondence to Peter Strout; ❑ Attorney Carr's February 10, 1999 correspondence (4 pp.) to Atty Landolphi; ❑ Attorney Carr's February 10, 1999 correspondence (2 pp.) to Atty Landolphi; Page Two of Six March 22, 1999 Inspector Strout RE: 20 Beckford Street ❑ Attorney Carr's February 11, 1999 correspondence (2 pp.) to Peter Strout; ❑ Attorney Landolphi's February 22, 1999 correspondence (6 pp.) to this office; o Attorney Carr's February 24, 1999 correspondence to this office; ❑ Attorney Carr's March 15, 1999 correspondence (15 pp.) to this office; ❑ Attorney Carr's March 15, 1999 correspondence (2 pp.) to this office; ❑ Affidavit of William and Elizabeth Burns of February 24, 1999; ❑ Affidavit of Hester Tinti of March 10, 1999. The Facts It appears undisputed that at the time of the adoption of the Salem Zoning Ordinance (1965), the property was being used as a three family dwelling. The property is in the R-2 district, which does not permit, by right, three family dwellings. Thus, the property was afforded protection as a nonconforming use. At some time, the Cooney family, in order to accommodate its growing children, extended its use from the first floor only, to the first and second floors. Their neighbors, the Burns and the Tintis, suggest that this occurred on or about 1972- 1982. Although not dispositive, the City Annual Listing appears to confirm this being the case from at least 1971 through 1980. It appears the Cooney family lived on floors one and two, and Geraldine Cooney, Mr. Cooney's mother, lived on the third floor. In 1981, a James Sweet (machinist) appears in the Annual Listing at this property. This means that he moved into the apartment sometime in 1980 as the Annual Listing is as of January Vt. Assuming he was renting the second floor, it would appear the three family use was "reestablished." There is no record of any relief sought from the Board of Appeal at that time. The building card reveals that there was an inquiry of the use to the building department in October 1987. Referencing a one-page opinion of then City Solicitor Michael O'Brien of 10/14/87, the card states, "This is a lawful three family." The solicitor's opinion was not filed with the City Clerk, nor have I been able to locate any additional information supporting same. The Cooneys have asserted, and I have no reason not to believe, that they never intended to abandon the use of their three family dwelling. It is certainly reasonable to expect that when the children grew up and moved out that they would again rent out the second floor. Either way, the "intent to abandon"does not need to be reached for purposes of this opinion. Page Three of Six March 22, 1999 Inspector Strout RE: 20 Beckford Street The Controlling Law Did 20 Beckford Street lose its nonconforming protection for three family use? Massachusetts General Laws Chapter 40A, Section 6, amended in 1975 (St. 1975, c. 808, § 3), provides, "A zoning ordinance or bylaw may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more." (emphasis added).' Unless sooner accepted by a particular city or town, this amendment took effect in every city and town except Boston on July 1, 1978. See Bartlett v. Bd. of Appeals of Lakeville, 23 Mass. App. Ct. 664, 667 n. 6 (1987). On May 5, 1977, by Ordinance 285, the City of Salem amended its Zoning Ordinance in compliance with c. 808 of the General Laws. (See attached copy of Ordinance).Z Since the change to Section 6, the courts have made clear that"abandoned"and "discontinued" are not synonymous. Otherwise, the Legislature enacted a mere 'tautology authorizing cities and towns to regulate nonconforming uses which have been "abandoned or abandoned for a period of two years or more." Ka- Hur Enterprises. Inc. v. Zoning Bd. Appeals of Provincetown, 424 Mass. 404, 406 (1997). Since May 5, 1977, the Salem Zoning Ordinance has provided the following: Any nonconforming use of land or structure and any nonconforming structure shalllose whatever rights might otherwise exist to its continuation under this section if said use or structure shall be abandoned or not used for a period of two (2) years or more.3 ARTICLE VIII. Sec. 8-5 (6)(emphasis added). Prior to 1975, there would be a need to show an intent to abandon, even extended nonuse would not have resulted in a forfeiture of Section 6's nonconforming protections. 'Although the City Council approved the amendment on April 28, 1977, it did not take effect until later endorsed by the Mayor. ' As It was not necessary for this determination, I have not addressed whether this two-year period was to be applied retroactively as of May 5, 1977. Page Four of Six March 22, 1999 Inspector Strout RE: 20 Beckford Street It appears the "not used" clock started ticking May 5, 1977. Thus, on May 6, 1979, the 20 Beckford Street property lost its nonconforming use status as a three family. What Is the Significance of the Solicitor's Opinion and Building Card Notation of October 1987? As a general rule, a municipality is not estopped from exercising its power to enforce its zoning regulations notwithstanding the fact that the unlawful actions by a landowner were done in good faith and in reliance upon the action of municipal officials. MCLE Massachusetts Zoning Manual, § 2.44 (1995)(citing Bldg. Insp. Lancaster v. Sanderson, 372 Mass. 157, 162 (1977)(the right of the public to have its zoning by-law enforced cannot be forfeited by the actions of its officials); Marblehead v. Derry, 356 Mass. 532 (1969); Dresser v. Insp. of Bldgs. Southbridge, 348 Mass. 729 (1965); Manchester v. Phillips, 343 Mass. 591 (1962); Seekonk v. Anthony, 339 Mass. 49 (1959). I did review the case, Vazza v. Bd. Appeals Brockton, 359 Mass. 256 (1971), cited by Attorney Landolphi, and I do not find that inconsistent with this general rule. In Vazza, the Court stated, "Purchasers are entitled to rely on applicable zoning ordinances or by-laws in determining the uses which may be made of the parcel they are buying. . . This determination must start with a reading of the zoning ordinances or by-laws existing at the time of the purchase." Vazza at 263. Since May 1977, the Salem Zoning Ordinance provided for discontinuance after two years. (See discussion supra). Solicitor O'Brien's correspondence of October 14, 1987 to Building Inspector William Munroe states that after investigation, it was his opinion that 20 Beckford was a lawful three family prior to the adoption of the Zoning Ordinance and thus should be afforded protection as a nonconforming use. Today, no one contests its status in 1965. I have not been able to ascertain what was encompassed in Solicitor O'Brien's "investigation" of the use of 20 Beckford Street. His determination, however, was reasonable in light of fact that he did not have affidavits of neighbors complaining of illegal use. Solicitor O'Brien's opinion was some seventeen years after the property was again used as a three family (1980). The Burns and Tintis have also been neighbors to this parcel all this time. I am not aware of any notice or request to investigate this alleged illegal use but for the request of February 1999. Page Five of Six March 22, 1999 Inspector Strout RE: 20 Beckford Street Limitation of Enforcement Actions. Massachusetts General Laws Chapter 40A, Section 7 provides in pertinent part: if real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action, criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said permit or the removal, alteration, relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of this chapter, or any ordinance or by-law adopted thereunder, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within six years next after the commencement of the alleged violation of the law; See also Lord v. Zoning Bd. of Appeals of Somerset, 30 Mass. App. Ct. 226 (1991)(where plaintiff lived in single-family residential district, pulled permits for addition to first floor and two car garage and used as two family for over ten years, inspector was right in issuing cease and desist as permits did not reference two-family use). Simply put, Section 7 does not provide for a statute of limitations for uses not sanctioned by a building permit. The building reference card for 20 Beckford Street shows a date when a permit was issued on October 15, 1987. (See attached copy). There is no permit number provided, nor a description of any work performed. There is no mention of a conversion from a two to three family or any other improvements to be made. The card and file for this property do not have any building permits for work done at this property — at any time. Relying on Solicitor O'Brien's opinion of the previous day, the card succinctly states, "This is a lawful three family." There is also a "3" in the"No. of Families" box. William Munroe who was building inspector at the time has since passed away. It appears that this opinion was solicited in connection with sale of the property in 1988. With the information presented to Solicitor O'Brien and Inspector Munroe in 1987, their statements were correct. There is no reason to doubt that opinion was given by a good faith effort. Page Six of Six March 22, 1999 Inspector Strout RE: 20 Beckford Street As 20 Beckford Street was not improved and used in accordance with a building permit issued by Inspector Munroe, the limitations period provided Section 7 does not provide protection for the three family use. If the owners had pulled permit(s) in October 1987 to convert or improve 20 Beckford Street as a three family and continued to use as such today, that use would be protected as the statute of limitations would have run in October 1993. Conclusion As the three family use of 20 Beckford Street was discontinued for more than two years (approximately May 5, 1977 until 1980 sometime), and that 20 Beckford Street has not been improved and used in conformance with a building permit pulled on or before February 5, 1993, the property today can only be used as a two family dwelling. Notwithstanding any potential equitable arguments of the situation, my determination is based solely on the applicable zoning statutes, the case law and the Salem Zoning Ordinance. Should the present owners or future owners want to use 20 Beckford Street as a three family, they must seek appropriate relief from the Board of Appeals. Please inform them of same. I hope this opinion has answered your question. Please do not hesitate to contact me with any questions. Very best regards, A� 304 D. KEENAN, ANT CITY SOLICITOR ]dk. Iem.20beckford ENC. CC. John Carr, Esq. F. Kelley Landophi, Esq. William Lundregan, City Solicitor AFFIDAVIT OF WILLIAM RUSSELL BURNS, JR. AND ELIZABETH BURNS We, William Russell Burns, Jr. and Elizabeth Burns, husband and wife, being duly deposed, hereby make oath and say: 1. We have resided at 22 Beckford Street, Salem, Massachusetts since 1965. 2. 22 Beckford Street is next door to the subject property at 20 Beckford Street, Salem, Massachusetts. 3. Both properties are located in an R-2 zoning district. 4. In 1972 20 Beckford Street was owned by Joseph F. Cooney Jr. and Geraldine Cooney (hereinafter "Mrs. and Mrs. Cooney"). 5. On information and belief, between the enactment of the current zoning ordinance in 1965, and 1971 inclusive, 20 Beckford Street was a legally- grandfathered three-family dwelling, with one apartment use on each of the building's three floors. 6. The first floor was then occupied by Mr. and Mrs. Cooney and their four children, Michael (born in 1957 approximately), Joseph (born in 1960 approximately), Susan (born in December of 1963), and Richard (born in April of 1965); the second floor apartment was leased to third parties; and the third floor was leased to Mr. Cooney's parents. 7. Beginning in 1972 (approximately), and continuing for at least the following ten years, Mr. & Mrs. Cooney discontinued the three-family use of the property, and operated the building as a two-family dwelling, occupying the first two floors, and continuing to rent out the third floor as a single apartment. 8. We believe the immediate reason for the discontinuation of the three-family use of 20 Beckford Street in 1972 (approximately) was to accommodate the Cooneys' need for additional space for their growing family. 9. Through much of the above ten year period all four of the Cooney children resided with their parents, and thus were aware of the discontinuation of the three-family use of the property. (Bear in mind that in 1972 Michael was approximately 15, Joseph was approximately 12, Susan was approximately 9, and Richard was approximately 7.) 10. At some point in the late 1980's (approximately) Joseph F. Cooney, Jr. and Geraldine Cooney obtained a divorce. 11. On information and belief, in October of 1988, Joseph F. Cooney, Jr. and Geraldine Cooney conveyed 20 Beckford Street to Mr. and Mrs. Michael Cooney (the former being their oldest child), and Geraldine Cooney, as tenants in common. 12. On further information and belief, in June of 1990 Mr. & Mrs. Michael Cooney and Geraldine Cooney conveyed 20 Beckford Street to Mr. & Mrs. Michael Cooney, and Richard Cooney, as tenants in common, thus effectively conveying Geraldine's interest to her youngest son. 13. The property has recently been listed for sale as a three-family dwelling, the legality of which we question. 14. We believe that the grand-fathered non-conforming three-family use of the property was discontinued and/or abandoned during the above ten-year period and was never legally revived or re-established thereafter. 15. I, Elizabeth Burns, have spoken with Hester Tinti, ho (together with her husband, attorney William Tinti) has resided at 148eckford Street, Salem, ( � Massachusetts since 1971, i.e. for all of the above period in question. 16. Mrs. Tinti indicated that she can and will corroborate the above facts and is willing to sign an affidavit to that effect. 17. We are opposed to any illegal three-family use of 20 Beckford Street. Signed under the penalties of perjury this 24th day of February 1999. (mac a Elizabeth Burns illiam Russell Burns, Jr. AFFIDAVIT OF HESTOR TINTI I, Hestor Tinti, being deposed, hereby make oath and say: 1. 1 have resided at, and have been an owner of, 16 Beckford Street, Salem, Massachusetts since 1971. 2. 16 Beckford Street is adjacent to the Cooney property at 20 Beckford Street, Salem, MA 01970, i.e. immediately to the south thereof, just as the Burns property is adjacent to the Cooney property immediately to the north thereof. 3. 1 have reviewed the Affidavit of William Russell Burns Jr. and Elizabeth Burns, dated February 24, 1999. 4. 1 agree with the Burns that the Cooney property was used exclusively as a two family dwelling for a minimum ten year period, roughly from 1972 to 1982, if not longer. Signed under the penalties of perjury this Cday of March 1999. Hestor Tinti April 28, 1977 Section VI. Section VII "Supplementary Regulations" is amended by adding after Paragraph L, thereof, the following: M. Religious or Educational Institutions "No portion of this Zoning Ordinance shall be interpreted to regulate or restric-. the use of land or structure for religious purposes or for educational purposes on la owned or leased by the Commonwealth of Massachusetts or any of its agencies, sub- divisions or bodies politic or by a religious section or denomination, or by a non- profit educational corporation, provided, however, that such land or structures most comply with all the requirements of the Zoning Ordinance concerning the bulk and height of structures, yard size, lot area, setbacks, open space, parking and building coverage requirements of the Zoning District in which it is located." Section VII. Section IX "Administration" paragraph F "Amendments" is amended by adding, at the end thereof, the following" "No proposed Zoning Ordinance which has been unfavorably acted upon by a city Council shall be considered by the city council within two years after the date of such unfavorable action unless the adoption of such proposed ordinance is recommended in the final report of the Planning Board." Section VIII. Section IX "Administration" paragraph F "Amendments" is hereby amended by deleting in subsection 2, the words "twenty days" and inserting in its place the words "Twenty-one days". Section IX. Section V "Use Regulations" paragraph 10, "Extension of non-conformity" is amended by adding at the end thereof, the following" "Provided, however, that such change, extension, enlargement or expansion shall not be substantially more detrimental than the existing nonconforming use to the neighborhood, nor shall this paragraph apply to billboards, signs, or other advertis- ing devices." Section X. Section IX "Administration" paragraph D, "Special Permits" is amended by deleting the words "Section 17 of" as they appear in the third paragraph of said paragraph D and by adding the end of said paragraph D, the following: "Construction or operations under a special permit shall conform to any subsequent amendment of this Ordinance unless the use or construction is commenced within a - period of not less than six (6) months after the issuance of the permit and in cases involving construction, unless such construction is continued through to completion, as continuously and expeditiously as is reasonable." ® Section XI. Section VIII "Nonconforming use of land or structure and any nonconform- ing structure shall lose whatever rights might otherwise exist to its continuation under this section if said use or structure shall be abandoned or not used for a period of two years or more." Section XII. Section IX "Administration" paragraph B "Violations" is amended by adding aC the end of the first paragraph thereof the following: DATE OF PERMIT PERMIT No. OWNER LOCATION 10/ 15/87 H[Sf UK�1 20 Beckford St . v U1 t k;, . � R-2 ', t i.i1 L7T1/ STRUCTURE MATERIAL DIMENSIONS No.OF STORIES+ FAMILIES WARD DWELLING INO-OF 3 12 I cosi BUILDER This is a lawful three-family (SEE CORRESPONDENCE IN ADDRESS FILE) .i z�1 _/ cod z - -9 S MICHAEL E. O'BRIEN 3' LEONARD F. FEMINO CITY SOLICITOR 93 WASHINGTON STREET ASSISTANT CITY SOLICITOR '`°'��'J and 93 WASHINGTON STREET 81 WASHINGTON STREET and CITY OF SALEM ONE BROADWAY SALEM, 01970 745-43431 1 MASSACHUSETTS BEVERLY, MA 01915 744.3363 745.4311 921.1990 Please Reply to 81 Washington Street Please Reply to One Broadway October 14 , 1987 William H. Munroe, Building Inspector City of Salem One Salem Green Salem, Massachusetts 01970 Re : Joseph F. Cooney, Jr. 20 Beckford Street Dear Mr . Munroe : Please be advised I have investigated the use of the above entitled real estate and it is my opinion that it was a lawful three-family prior to adoption of the Zoning Ordinance on August 27 , 1965 . Accordingly, it should be af- forded the protection of Section VIII (E. ) of the aforemen- tioned ordinance relative to nonconforming uses and, thus , it ' s current use as a three-family is permissible . ,Very t my yours , 7 � Michael E. O' Brien City Solicitor MEO/jp n O c- L �n J Cite of Salem, Aag9arbu5 eCM9 �s Public Property 3Bepartment �3uiTDing department One ba(em Oreen (976) 745-9595 (text. 380 Peter Strout Director of Public Property Inspector of Buildings Zoning Enforcement Officer February 2, 1999 Michael Cooney 11 Hilltop Circle West Newbury, Ma. 011985 RE: 20 Beckford Street Dear Mr. Cooney: This letter is to inform you that your property located at 20 Beckford Street is in our opinion a legal grandfathered thee (3)family dwelling. Enclosed, please find a copy of a letter dated October 14, 1987 from Michael O'Brien, City Solicitor confirming this property is a legal three (3) family. If I can be of any further assistants, please do not hesitate to call. Sincere) e er Strout Zoning Enforcement Officer Titg of 14�tticm, fiRttssar4usrtts Public PropertU Department +iguilbing Department (9ne #alem (Kreen 500-745-9595 Ext. 3011 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer May 13, 1993 Michael J. Cooney 20 Beckford Street Salem, MA 01970 RE: .20 Beckford St. Dear Mr. Cooney: I regret having to return your application for a Building Permit to install siding at the above referenced property but this property is located in the City of Salem Historic District and permission from the Historic Commission must be obtained prior to any permits being issued for any type of exterior work done in this district. Please contact Jane Guy, Historic Commission, 745-9595 Ext. 401 and she will be able to assist you. After you have obtained their approval you may re-apply for permit. Sincerely, Leo E. Tremblay Inspector of Buildings LET:bms cc: Jane Guy, Historic Councillor Harvey, Ward 2 Enclosed: Application Check #5676 $20.00 /20bckfrd/ u 4I'e Salem Historical Commission ONE SALEM GREEN,SALEM.MASSACHUSETTS 01970 (508)745-9595 EXT. 311 May 11 , 1993 NOTICE OF VIOLATION CEASE & DESIST ORDER Michael J. Cooney Maureen B. Cooney Richard R. Cooney 20 Beckford Street Salem, MA 01970 Dear Homeowners : Recently it has come to the attention of the Salem Historical Commission that work (clapboard replacement) is being conducted to the exterior of your property at 20 Beckford Street, which is located in a local historic district. According to our files, there is no approved Certificate for either Appropriateness, Hardship or Non-Applicability for work to be done. Please cease and desist all work and kindly file the appropriate application at your earliest convenience. If you need assistance, please contact our staff person, Jane Guy, at the Salem Planning Department, One Salem Green, Salem, MA (745-9595, Ext. 311 ) . Thank you for your cooperation in this matter. Sincerely, �16c / v C THE SALEM HISTORICAL COMMISSION Richard Oedel Chairman cc: Building Dept. City Clerk Salem Historical Commission ONE SALEM GREEN, SALEM, MASSACHUSETTS01970 NOTICE OF DENIAL OF APPLICATION FOR CERTIFICATE OF APPROPRIATENESS On Wednesday, February 1 , 1989, the Salem Historical Commission, at a duly constituted meeting, denied the application for a Certificate of Appropriateness submitted by Michael Cooney for his property at 20 Beckford Street. The application was for permission to relocate the existing fence. At the present time this fence runs along the westerly side of the property parallel to Beckford Street and adjacent to the public sidewalk. The applicant proposed to remove the fence from this location and to relocate it to the east of the central doorway. The Commission voted to deny a Certificate of Appropriateness by a vote of: approval - zero and denial - seven. The Commission' s denial was based on the fact that "historically, fences were located along the sidewalk and the continuity of this fence is an important asset to the Street" (Salem Historical Commission Guidelines Notebook, 1984) . The Commission' s guidelines emphasize that "The Commission generally discourage fence relocation to accommodate off-street parking" and that "Salem' s fences are a key element in establishing the character of each street". In the case of this application it was determined by the Commission that continuity of this fence is an important architectural feature on Beckford Street and its relocation to accommodate off-street parking is not appropriate here. I attest that this is an accurate record of the vote taken, not amended or modified in any way to this date. thleen Winn Staff Advisor J2808 co o� Co rt gC-3 r- 171 � o 6 fV o nal -t C.o IQ t a m Aistoricai S iss on ONE SALEM GREEN.SALEM. MASSACHUSETTS 01970 !617! 715-9595. EXT. 311 NOTICE OF DENIAL OF APPLICATION FOR CERTIFICATE OF APPROPRIATENESS On Wednesday, May 3 , 1989, the Salem Historical Commission, at a duly constituted meeting, denied the application for a Certificate of Appropriateness submitted by Michael and Maureen Cooney for their property at-20-Beckford"Scree"t. The application was for permission to alter the existing--fence'which-1presently runs along the westerly side of the property parallel to Beckford Street and adjacent to the public sidewalk. The applicant proposed to remove the center gate post and lenghthen the gates. The right-hand post would be moved a negligible amount to the right for symmetry. The motion to approve the application for a Certificate of Appropriateness as submitted was denied by a vote of 2 in favor, 5 opposed. The Commission' s denial was based on the following findings: - Retention of a fence at the sidewalk is part of the Salem Historical Commission Guidelines and any removal of the fence at the sidewalk would detract from those guidelines; - There is no precedent for having a gate which occupies the entire fence; - Having a gate the entire length of the fence would block the entrance walkway when closed, which is also against traditional function and composition of a sidewalk fence. - Traditionally, fences had a small gate for the sidewalk and a larger gate for the driveway opening and that these were defined by posts on either side. The proposed scheme was not in keeping with that tradition. - That it is historically inappropriate to have any gateway opening to allow vehicular access which is greater than 10-12' in width. I attest that this is an accurate record of the vote taken, not amended or modified in any way to this date. 7/12/89 � , ,6 Ta A. Guy C rk of the Com 'ssion cc: Building Inspc. City Clerk JHisCom4/Denial4 ,VCON itt Salem Historical Commission CITY HALL. SALEM. MASS. 01970 CERTIFICATE OF NON-APPLICABILITY It is hereby certified that the Salem Historical Commission has determined that the proposed construction [ ] ; reconstruction [x] ; demolition [ ] ; moving [ ]; alteration [ ] ; painting [ ] ; sign or other appurtenant fixture [ ] work as described below in the . . . MclntiAe Historic District. (NAME OF HISTORIC DISTRICT) Address of Property: 20 Beck{ond St. Name of Record Owner: M.ichaee Cooney DESCRIPTION OF WORK PROPOSED: RepaiA/nepPacement of damaged eeapboaAcs on section oU Southern pant o5 house with no changes .in colon, mateni.at, design on outward appearance. Non-appticab.Ce due to being an in kind nepa,iA/neptacement. does not involve an exterior architectural feature or involves a feature covered by the exemptions or limitations set forth in the Historic District's Act (MA- Gen. Law. Ch. 40C) and the Salem Historical Commission. Please be sure to obtain the appropriate permits from the Inspector of Buildings prior to commencing. Dated: June 8, 1993 SALEM HISTORICAL COMMISSION BY rE eG(/ 1om!- Chairman /� 11 iSir It al foiler kUtspii- Wrr Salem Historical Commission 120 WASHINGTON STREET, SALEM,MASSACHUSETTS 01970 (978)619-5685 FAX(978) 740-0404 CERTIFICATE OF NON-APPLICABILITY It is hereby certified that the Salem Historical Commission has determined that the proposed: ❑ Construction 0 Moving ✓ Reconstruction 0 Alteration ❑ Demolition ✓ Painting ❑ Signage ❑ Other Work as described below does not involve an exterior architectural feature or involves a feature covered by the exemptions or limitations set forth in the Historic District's Act (M.G.L. Ch. 40C) and the Salem Historic Districts Ordinance. District: McIntire Address of Property: 20 Beckford Street Name of Record Owner: Paul and Kirstin Bunker Description of Work Proposed: • Repair and/or in-kind replacement of deteriorated wood trim and clapboards; • Repair shutters; and • Scrape siding, trim and shutters and repaint to match eixisting color. There will be no changes in color, material, design, location or outward appearance. Non-applicable due to being in-kind repair. Upon completion of above work,please notify Historical Commission staff as final sign-off is required to document compliance with this Certificate and approved plans. Dated: May 24, 2018 SALEM HISTORICAL COMMISSION By: The homeowner has the option not to commence the work (unless it relates to resolving an outstanding violation). All work commenced must be completed within one year from this date unless otherwise indicated. THIS IS NOT A BUILDING PERMIT. Please be sure to obtain the appropriate permits from the Inspector of Buildings (or any other necessary permits or approvals)prior to commencing work.