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4 BENTLEY STREET - BUILDING JACKET 4' BENTLEY;STREET , OLUVUNY V aLOVSKY IQ1vU2/uv[ 18 BB a 19 on ® Bass 8 GLOVSKY & GLOVSKY Philip C.Wysor ATTORNEY$ AT LAW pwvSerQelayskyx .conn Dlrect Dial(979)720-3112 September 19, 2006 V14 FACSIMILE AND HAND DELLYLAED Nina Cohen, Chairperson Salem Zoning Board of Agpeals 120 Washington Street, Y Floor Salem,MA 01970 RE: Nicholas Osgood 4 Bentley Street Salem, Massachusetts 01970 Dear Ms. Cohen: It has come to my attention just today that John H. Carr, Jr., Esquire, has filed an appeal from Mr. St. Pierre's determination that the above-referenced property constitutes a three-family dwelling. Although the appeal was filed September 12,2006, I was not made aware of it until today. As you know, Mr. Osgood's matter before the Board concerns the design of the second means of egress necessitated by the third unit at this property. The only reason for the second means of egress is because of the existence of the third unit. Since the determination that this property constitutes a three-family dwelling is now under appeal, it is premature for the Board to take up the question of the design of the staircase. I respectfully request a continuance of Mr. Osgood's petition until the appeal raised on behalf of Mr. Can's client is finally decided. It is my intention to appear at the September 20, 2006 meeting to request this continuance in person. Thank you, y yours, t, C Philip C. ysor PCW:mfs cc: Thomas St.Pierre, Salem Building Inspector(via facsimile) John H. Carr, Jr., Esquire(via facsimile) Eight Washington Street Beverly, MA 01916 Tell 978,922,5000 Fax! 976.921.7809 John 11. Carr,Jr.,Esq. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 September 5,2006 By Hand Salem Zoning Board of Appeals City of Salem 120 Washington Street, 3`d Floor Salem,MA 01970 RE: 4 Bentley Street, Salem,MA Dear Members: My client,Linda Moustakis, of 2 Bentley Street, Salem,Massachusetts hereby appeals the August 31, 2006 determination by Thomas St. Pierre, Salem Zoning Enforcement Officer,that 4 Bentley Street is a legal 3-family dwelling. I am enclosing a copy of said determination letter from which my client is appealing, which I received in this morning's mail. Would you kindly let me know whether the ZBA hearing on this appeal will be consolidated with the continued hearing on the application of the owner of 4 Bentley Street,Nicholas Osgood, for a variance to ratify the already-built, 3-story exterior staircase on the shared side lot line between 2 Bentley Street and 4 Bentley Street,which continued hearing is presently scheduled for Wednesday, September 20,2006 at 6:30 p.m. in the Building Inspector's office. Would you also kindly confirm your receipt of this notice of appeal letter by date- stamping the enclosed copy thereof. Thank you for your attention to the foregoing. Very truly yours, John H. Carr, Jr. Enc. Cc Elizabeth Renard, Esq., City Solicitor Nina Cohen, Chairperson, Salem Zoning Board of Appeals Members of Salem Zoning Board of Appeals Ms.Linda J.Moustakis Matthew Kelleher, 1"floor owner, 4 Bentley Street Victoria Regan, 2"d floor owner,4 Bentley Street CITY OF 9ALKM* MASSACHUSKTTS BOARD OF APF[AL - 120 WASHINGTON STRt[T, 3RD FLOOR SALCM. MASSACHUSETTS 01970 TELSON011te 970.745.9508 Fifa 970.740-9"4 TO THE BOARD OF APPEAL: The Ujrsignp repryspnt that h she is//pre the owners of a certain parcel 0 loured at: `t /- Q^ffPn T ZAningDistrict: IC C and said parcel is affected y Section(s) �� _.of the Salem Zoning Ordinance. Plans describing the work proposed have beensubggii to the Inspector of Buildings in accordance with Section IX A.I of the Zoning Ordinance. /XU The Application for Permit was denied by the Inspector of Buildings for the following reason(s): is r �2 o-4440rn , far 6 'J o ta.c i The Undersigned hereby-petitions of0w4alemZonkgoWinance w the o' k— M.,plaw submiftd,as dig Q, L I IM I er fooilewin8Zleaeee(�)'�r.1'I� D 1�u '3,j ZGyJ 6ifrh t ho�os �T /'1E M2 / /�hi C-or, of �enEf� S-hecf :s CL 1e9.,/�- 11 Tr �µ,�, l�7 (PLEASE PRINT) Z a n t Wo C oh s ��s% 200(0 Owner: Ahrllro T�� /Nom /�vs7�.t !' r 5o anew�r2 i� I dHres�9 iU �� r- n Address: nn A s: Telephone: n0 f dCe�– �-Q� Al) _ O ' T� Telephone: B ignature Date: O b rr S Zod 6 wre/� a�, 1aofR u� See -�'(�� This original application must be Filed with the Qit Jerk. A certi t y q�", py of this petition(vill be return �I to petitioner at the time of filing with the City Clerk,to with the Secretary of the Board of os f ��C4JtE Appeal, four(4) weeks prior to the meeting of the Board of Appeal. A; p A TRUE co �AJ ATTEST 13 y� Q3A13�3a LE £ d Z 1 0 goal CITY CLERK eyaµ'C01W �,1 Y4 N�Lill� ..J'.Y�(-L 7J(4L1F LL7JG i Public Prnpertg =33cparttnent '��o,��E��'�� c�uilli�tg �epttrtntent William H. Munroe One Salem Green 745-0213 March 13, 1986 TO WHOM IT MAY CONCERN: RE: 6 Bentley St. , Salem This office has researched the records available on the property located in Salem at 6 Bentley Street with the following findings: The building was built and occupied as a three (3) ` family dwelling prior to 1966 and this use' has continued to date. This building is being assessed as a three (3) family for tax purposes. It is the determination of this office that 6 Bentley Street was built as a three (3) family, has. been, is, and may continue to be used as a three (3) family and will be noted on our files. This letter is in no way meant to confirm that the property does or does .not conform to all current building, fire, electrical,. plumbing and gas codes. Sincerely, I E ga Paqui AstAstan Building Inspector EJP:bms �J John H. Carr, Jr., Esq. 9 North Street Salem,MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 September 19, 2006 By Mail &By Facsimile: 978-921-7809 Philip C. Wysor 8 Washington Street Beverly. MA 01935 Re: 4 Bentley Street Dear Attorney Wysor: I have just retained to the office to find your 10:40 a.m. fax of today's date. I cannot account for why you did not receive copies of Ms. Moustakis' September 5, 2006 letter to the Salem Zoning Board of Appeals appealing Mr. St. Pierre's August 31, 2006 determination that 4 Bentley Street is a legal 3-family dwelling, along with every other interested party, especially since they all received their copies,but in any event, I am herewith enclosing a copy of same. In light of your fax I assume you also did not receive a copy of Mr. St.Pierre's September 7, 2006 letter insisting that we use his application form for the appeal, but I am also herewith enclosing a copy of that letter as well,together with a copy of Ms. Moustakis' resulting September 12, 2006 appeal(nunc pro tunc to September 5, 2006) on the form supplied by Mr. St. Pierre's office. As I indicated in yesterday's fax,I will be opposing your request for a continuance tomorrow evening, and will be insisting on an up-or-down vote on Mr. Osgood's March 24,2006 application for a variance to keep the 3-story, exterior staircase at 4 Bentley Street. Your application for a variance is a stand-alone issue that has already dragged on for over year(taking construction of the staircase into account);you have received an initial favorable ruling from the Building Inspector that 4 Bentley Street is a legal 3-family dwelling;my appeal may literally take years before it runs its course in the Essex Superior Court, especially given the pace that has already occurred before the ZBA; tomorrow will mark the third hearing on said application;tomorrow was specially scheduled last July; and this issue has already been fully briefed by both of us, all of which is way out of the norm concerning such applications. Moreover,whatever may be the complexity of the law with respect to Section 7 of Chapter 40A,the law with respect to the exterior staircase is clear,you are not entitled to a variance for the exterior staircase. After all,Ms. Moustakis' entitlement to the protection afforded by the Salem Zoning Ordinance in preventing such a structure is not negated by the mistake of an assistant building inspector. If you have any recourse at all, it is against him,or his employer,for money damages, and not against the Salem Zoning Ordinance. In point of fact,the issue of the staircase is not interdependent with the issue of whether or not 4 Bentley Street is a legal 3-family dwelling. I too wish Mr. St. Pierre had made his August 31,2006 determination earlier so that my appeal to the full ZBA Board could have been advertised in time for the appeal to be heard at tomorrow's hearing along with the variance issue,but as my multiple follow-up letters to Mr. St. Pierre (requesting he speed up his decision)make clear,the delay was his fault,and not mine. Indeed,I initially filed the appeal on September 5,2006,the very day I received Mr. St. Pierre's August 31, 2006 determination in the mail. Please be forewarned that if you choose not to appear at tomorrow's ZBA hearing,you will be doing so at your client's peril, as(again)I will be requesting that the Board deny Mr. Osgood's application for a variance,whether you and/or Mr. Osgood appear or not. Very truly yours, John H. Carr, Jr. Enc. Cc. Elizabeth Rennard,Esq., City Solicitor—By Mail &By Facsimile Nina Cohen, Chairperson, Salem Zoning Board of Appeal—By Hand Thomas St. Pierre, Salem Building Inspector—By Mail&By Facsimile i,/ Ms. Linda Moustakis John H. Carr, Jr., Esq. 9 North Street Salem,MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 September 18, 2006 By Mail &By Facsimile: 978-921-7809 Philip C. Wysor 8 Washington Street Beverly. MA 01935 Re: 4 Bentley Street Dear Attorney Wysor: I am in receipt of your 11:01 am. fax of Friday, September 15, 2006 suggesting that we postpone this Wednesday's ZBA hearing on your client's application for a variance for the 3-story,exterior staircase at 4 Bentley Street in view of the appeal I have taken from Mr. St. Pierre's August 31,2006 determination that 4 Bentley Street is a legal 3-family dwelling. Confirming the message I left on your office answering machine this morning,my client and I see the appeal as an altogether separate issue. In view of the fact that September 20, 2006 represents the third hearing on Mr. Osgood's March 24,2006 application for a variance for the staircase; that the previous two ZBA hearings occurred on April 19,2006 and July 19,2006; that this matter has been specially scheduled(according to your August 11,2006 letter)for 6:30 p.m. on September 20, 2006"to be convened in the Building Inspector's office at 120 Washington Street, Salem, MA;"that this matter has already dragged on for over a year–see enclosed copy of my client's September 20,2005 letter to Mr. St. Pierre; and that Mr. Osgood's application for a variance for the staircase can be decided on its own merits without waiting for the appeal to run its course(including, if need be, in Superior Court),Ms. Moustakis and I strongly oppose any such continuance and insist upon an up-or-down at this Wednesday's ZBA hearing. Very truly yours, John H. Carr, Jr. Enc. Cc. Elizabeth Rennard, Esq.,City Solicitor=By Mail&By Facsimile Nina Cohen, Chairperson, Salem Zoning Board Thomas St. Pierre, Salem Building Inspector—By Mail&By Facsimile Ms. Linda Moustakis h 4 i� - �►� 'ado -as Thomas St.Pierre Building Inspector Salem, MA. 01970 Dear Sir, 1 am writing this letter to request the revocation of Permit 1006-05 for a staircase and deck at 4 Bentley St., Salem, Ma.01970. The permit allows the staircase to be built only two feet two and ont-half inches from my property and fence line and is an invasion of my privacy and a devaluation of my property. It is also in violation of the state building code 780 CMR, 10 14.12.1 which states that staircases and other structures shall be ten feet away from tho property lines. I request an answer in writing that there is another law that contradicts this code. Thank you, Linda J. Moustal,is o mT CITY OF SALEM, MASSACHUSETTS PUBLIC PROPERTY DEPARTMENT 120 WASHINGTON STREET. 3RD FLOOR J SALEM. MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 EXT. 380 FAX: 978-740-9846 KIMBERLEY DRISCOLL MAYOR August 31, 2006 John H. Carr Jr., Esquire 9 North Street Salem, Ma. 01970 RE: 4 Bentley Street Dear Mr. Carr: I have reviewed the information regarding the legal status of 4 Bentley Street. It is my opinion that 4 Bentley is a 3 family dwelling. It is my understanding that the third unit is protected from any action by the City due to the provisions of Mass General Law 40A, Section 7 If you wish to appeal this determination, you must file an appeal with the Salem Zoning Board of Appeals. It should be noted, the issue of the three family status is not before the Board. The issue before the Board is the exterior deck and stairway. Sincerity, _ Thomas St. Pierre Zoning Enforcement Officer Building Commissioner cc: Philip Wysor, Esq. Elizabeth Rennard, Solicitor Jerry Parisella, Assistant Solicitor John H. Carr,Jr., Esq. 9 North Street Salem,MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 September 5,2006 By Hand Salem Zoning Board of Appeals City of Salem 120 Washington Street, 3`d Floor Salem, MA 01970 RE: 4 Bentley Street, Salem, MA Dear Members: My client, Linda Moustakis, of 2 Bentley Street, Salem,Massachusetts hereby appeals the August 31,2006 determination by Thomas St. Pierre, Salem Zoning Enforcement Officer,that 4 Bentley Street is a legal 3-family dwelling. I am enclosing a copy of said determination letter from which my client is appealing,which I received in this morning's mail. Would you kindly let me know whether the ZBA hearing on this appeal will be consolidated with the continued hearing on the application of the owner of 4 Bentley Street,Nicholas Osgood,for a variance to ratify the already-built, 3-story exterior staircase on the shared side lot line between 2 Bentley Street and 4 Bentley Street,which continued hearing is presently scheduled for Wednesday, September 20,2006 at 6:30 p.m. in the Building Inspector's office. Would you also kindly confirm your receipt of this notice of appeal letter by date- stamping the enclosed copy thereof Thank you for your attention to the foregoing. ry John H. Enc. Cc Elizabeth Renard,Esq.,City Solicitor Nina Cohen,Chairperson, Salem Zoning Board of Appeals Members of Salem Zoning Board of Appeals Ms. Linda J. Moustakis Matthew Kelleher, 1'`floor owner, 4 Bentley Street Victoria Regan,2"d floor owner, 4 Bentley Street John H. Carr,Jr.,Esq. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 August 22, 2006 By Mail&By Facsimile: 978-745-9157 Elizabeth Rennard,City Solicitor Kaufman&Frederick 265 Essex Street Salem, MA 01970 Re: 4 Bentley Street Zoning Dispute Dear Attorney Rennard: I hope you have enjoyed your recent vacation. Having in mind that Tom has had my Memorandum and other submissions since August 15,2006,I was wondering whether you had any idea when he expected to make a ruling in his capacity as Salem Zoning Enforcement Officer regarding 4 Bentley Street. I meant it when I said in my August 15,2006 cover letter that I wanted him to take as much time as he reasonably needed,and to hopefully confer with you as City Solicitor, but I was nevertheless wondering when that might be. Could you kindly let me know when you have a chance. Thanks. Very truly yours, John H. Carr, Jr. Cc. Philip C. Wysor, Esq. Nina Cohen, Chairperson, Salem Zoning Bod of Appeals Tom St. Pierre, Salem Building Inspector Ms. Linda Moustakis Mr. Matthew Kelleher Ms. Victoria Regan John H. Carr, Jr., Esq. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 August 28, 2006 By Mail &By Facsimile: 978-745-9157 Elizabeth Rennard, City Solicitor Kaufman&Frederick 265 Essex Street Salem,MA 01970 Re: 4 Bentley Street Zoning Dispute Dear Attorney Rennard: Tomorrow will mark 2 weeks since I personally hand-delivered my August 15, 2006 Memorandum of Law to Tom St. Pierre along with Linda Moustakis'"Affidavit of the same date. In my cover letter I urged Tom to take as much time as he reasonably needed to confer with you and make a determination. But having in mind that the issue of whether or not 4 Bentley Street is in fact a legal 3- family dwelling was first raised in my April 19, 2006 letter to the Salem Zoning Board of Appeals (which was presumably shared with Tom as a matter of course); that I specifically requested Tom's investigation and determination in my letter to him of July 18, 2006; that he has had Phil Wysor's Memorandum of Law since July 19,2006; that he has had my Memorandum of Law for 15 days; and that the statutory prescription for such an investigation and determination(although not mandatory) is 14 days, surely he has by now all of the information he reasonably needs to make a determination. You may recall that the continuation of this matter is scheduled for the September 20, 2006 meeting of the Salem ZBA. I suspect that whichever side is aggrieved by Tom's decision will appeal to the full Board, and in fairness to all,that should be heard on September 20,2006 as well, and not continued for yet a fourth hearing. A difficult decision does not get any easier the longer it is put off, so in fairness to all, I am-hoping that you and he will be able to confer and do whatever is necessary in order to reach a decision one way or another by the end of this week, or the beginning of next. Thank you in advance for your(and his)anticipated cooperation in this matter. Very truly yours, John H. Carr, Jr. Cc. Philip C. Wysor,Esq. Nina Cohen, Chairperson, Salem Zoning Board of Appeals Tom St. Pierre, Salem Building Inspector✓ Ms. Linda Moustakis Mr. Matthew Kelleher Ms. Victoria Regan Answer:No. oop Mr. Osgood cites only two cas in support of his Section 7 limitations argument:Moreis vs. Board of Appeals of s,62 Mass.App. Ct. 53 (2004)and Hall vs. Zoning Board of Appeals of Provincelown, 56 Mass. App. Ct. 1103 (2002),Unreported. Of the two,Moreis,instead of supporting Mr. Osgood's argument, supports Ms. Moustakis' argument, as hereinafter discussed, and Hall is a so-call re-script opinion, meaning that there is no discussions whatsoever of the principles upon which the case was decided. The facts of Moreis,as found by the Appeals Court, are as follows: J. Raymond Moreis,a residential owner,requested the local building inspector to issue a cease and desist order to a neighboring property owner,Frank M. Fenner,whose tenant was using Fenner's land, located in a residential district,for parking,maintaining and cleaning large trucks of several types;collecting and processing refuse,cans,and bottles; and other commercial uses. The inspector refused the enforcement request and Moreis appealed to the Oak Bluffs Zoning Board of Appeals('ZBA'I. After conducting a hearing,the ZBA upheld the inspector's decision,and Moreis appealed to the Superior Court. Fenner's chief defense was that his use of the site was protected by the 6-Year statue of limitations provided in Section 7 of Chapter 40A relative to enforcement actions. Moreis prevailed in the Superior Court and the trial judge ordered the ZBA to take all actions necessary to enforce the cessation of all commercial and non-residential use of the site. Fenner thereupon appealed the Superior Court decision to the Appeals Court, arguing that(1)the trial judge erred in determining that Fenner's use of his property was not protected under Section 7 of Chapter 40A by virtue of various building permits that had been issued to him and his predecessor in title; (2)the trial judge impermissibly substituted his judgment for that of the ZBA; and(3)the judge's findings of fact were clearly erroneous. Fenner's property consisted of two adjoining lots. One was a lot with a building (building lot)and the other was a paved lot, with perimeter fencing but no building(fence lot). The building lot,which had been owned by the town and used as a school gymnasium,was sold to one Everett A. Rodgers in 1958. Rogers then began using the building lot and building for his relocated trucking business,although the land was then (and at all material times since)zoned for residential use only,which residential zone did not permit trucking or any commercial uses. Rogers' business activities involved delivering food and beverages to local restaurants and stores,rubbish collection, and storage and maintenance of several kinds of trucks. In 1965 Roger's obtained a building permit relative to the building lot to build an addition for the purpose of"storage& garage"at a cost of$1,500.00. The building 5 1993 that you could not have a third unit there,that this property, according to our records,is only a two family dwelling,and it would require Board of Appeal action to increase the use. You have evidently chose to ignore my letter. You are hereby ordered to cease and desist all illegal use of the property and to contact this office upon receipt of this notice to advise use a intentions. Failure to ^-pomp y wiu result in the appropriate legal action being taken. Yet, on December 21, 1993, less than one month after his November 29, 1993 letter,Mr. Tremblay signed a statement on the field card for 4 Bentley Street that read"Determined to be a lawful three(3)family dwelling as per the Zoning Enforcement Officer•"opposite his signature. Said determination was unsupported by any reasoning or reasons for the change whatsoever. At apparently the same time the box in the field card listing"No. Of Families"was obviously altered by hand from"2"to "3." A copy of said field card is attached hereto as Exhibit E. Again,Moreis is one of the only two cases cited by attorney Wysor in his July 19, 2006 Memorandum to the Salem Board of Appeals,the other being a re-script decision entitled Hall v Zoning Board of Appeals of Provincetown, 56 Mass. App. Ct. 1103 (2002), Unreported, in which there was absolutely no discussion whatsoever of the principles upon which the one-line decision was based. Moreis is an especially strong case because(given the obvious nature of the non- conforming trucking and commercial uses)the Appeals Court could have found that Moreis knew or should have known of said illegal nonconforming uses for purposes of commencing the 6-year statute of limitations provided in Section 7 of Chapter 40A. Clearly the Court was bending over backwards to reject Fenner's Section 7 argument,and given the extent of same,it seems obvious that the Court generally frowns on said arguments. It should also be kept in mind that in Moreis the enforcement action occurred 32 years after the oldest(ie. 1965)building permit,whereas in our case the building permit was issued only 9 years from the requested enforcement action. Lord v. Zoning Board ofAppeals of Somerset, 30 Mass.App. Ct. 226 (1991)was another decision where the Massachusetts Appeals Court rejected an owner's contention that a zoning enforcement action was batted by the 6-year statute of limitation provided in Section 7 of Chapter 40A. In that case an owner of a single-family property had obtained a building permit in 1966 authorizing an addition to the first floor consisting of two bedrooms and a living room. At the same time the owner converted the original bedroom and living room on the first floor to a kitchen and bathroom. 8 j a building permit in 1966 authorizing an addition to the first floor consisting of two bedrooms and a living room. At the same time the owner converted the original bedroom and living room on the first floor to a kitchen and bathroom. Between 1967 and 1976 the owner did additional work without benefit of a building permit,adding three bedrooms and a living room in the basement(which already had a kitchen and bathroom). In March of 1972 the same owner obtained a building permit to construct a 2-car garage, which he used(along with the 1966 building permit)as the basis for his contention that the 1998 enforcement action was barred by the 6-year statute of limitations provided in Section 7 of Chapter 40A. Both the trial Court and the Appeals Court rej ected said argument. ,Cape Resort Hotels, Inc. v. Alcohols Lic. Bd of Falmouth,385 Mass.205 (1982) involved a hotel which had operated as a lawful,preexisting nonconforming use in a residential district,At issue was the change in use of particular rooms in the hotel: a reading area had become a disco;part of an enclosed porch had become a game room; and a"frolic room"had become a"show room." After rejecting the owner's argument that the changes continued to enjoy the protection of Chapter 40A,Section 6,the Supreme Judicial Court rejected the landowner's claim that a single permit to enclose a porch provided Section 7 protection for"the entire present use of the hotel's ground floor,"and instead examined the hotel's present uses,and any prior building permits,on a room-by-room basis. Of the multiple uses for which the landowner sought protection,the Court concluded that only the show lounge was protected by Section 7, because the documents accompanying an earlier permit application for an addition which subsequently became the show lounge"indicated very clearly that the space would include a bar,cocktail lounge,and entertainment facilities—the specific uses in effect at the time of trial. See also Feuer v. Board of Appeals of Stoneham,57 Mass. App. Ct 1114(2003)where a nonconforming use of the property as a banquet facility and other use violations were not protected by the 6-year statute of limitations from an enforcement action to redress violations of the zoning by-law that were in force as of the issuance of the building permit more than six years before. It seems clear that Section 7 usually applies where there is a prior permitted use,a building permit which is subsequently obtained which clearly references a change of use, reasonable notice of said permit or change of use,a change of use in reliance on said permit(both in terms of construction and subsequent use)on the part of the owner,and a challenge to said use filed more than 6 years after the issuance of the building permit In Garabedian v. Westland,59 Mass.App.Ct.427(2003),the Appeals Court held that a Superior Court judge had correctly determined that the Zoning Board of Appeals of Southborough had acted within its discretion in affirming the building inspector's denial of a permit for a second airplane hanger to be constructed at the owner's residence and 9 for expansion of the original hanger and airstrip,because such use of the land in an R-1 zone was not a customary and incidental assessory use under the town's zoning by-laws. The Appeals Court also held that the Superior Court trial judge had properly ruled that the building-permit-related 6-year limitations period in Section 7 of Chapter 40A barred the neighbors' enforcement action(challenging said use more than 12 years after the fact) because they knew or should have known about the use of the original hanger from the inception of the process. See also Lapidus Y. Board ofAppeal of Boston,51 Mass.App. Ct. 723 (2001). Although not technically a Section 7 case, the Appeals Court found that the doctrine of laches barred an enforcement action sought by a neighboring residential owner against a restaurant more than 23 years after the City of Boston issued a building permit converting a conforming residential use to a restaurant with entertainment. At page 727,the Appeals Court stated that"During that time [ie.the 23 years since the building permit had been issued], the conditions here complained of should have been obvious to the plaintiff,and no action by the defendants,or anyone else,barred or prevented the plaintiff from taking action at a far earlier date." GfIPIVA, L J. DJ, �, In our case there is no similar reasonable imputation of knowledge for purposes of commencing the 6-year statute of limitation. Ms.Moustakis has Sled an affidavit in which she states under oath that Mr. Osgood did not display any building permit for the exterior staircase at 4A Bentley Street"so that it is visible from the street,"as is required, nor did hispr� ia.title display the February 1997 building permit so that it was clearly visible from the street. And unlike the 3-story staircase, which gave her every opportunity to realize that something was amiss,there was no such constructive notice concerning the February 1997 building permit. Not only was she unaware of the February 1997 building permit, she was not even aware of the interior"renovations to the third floor apartment." Had she been aware of Mr. Osgood's February 1997 building permit, she would have immediately contested same,just as she did immediately following construction of the 3-story exterior staircase,which(according to the application for the building permit)consisted simply of removing and replacing two non- bearing interior walls,and renovating the 3rd floor bathroom. Surely that is distinguishable from the constructive notice of construction of an airplane hanger in an R-1 zone in Garabedian or replacing a residential use with a restaurant w ith entertainment in an R-I zone in Lapidus. e. Is Mr.Osgood entitled to a variance for the already-ba ilt,free- standing,3-story exterior stairease essentially located on the side lot Hue at the rear of 4 Bentley Street? Answer. No. In order to be entitled to a variance for the already built,free-standing, 3-story exterior staircase,Mr. Osgood would have to prove each of the following three elements as a matter of law: 10 i. That he has suffered a legally-recognized hardship; ii. That there are special conditions or circumstances affecting the land,building,or structure; and iii. That granting a variance for said staircase will not cause substantial detriment to the public good and will not nullify or substantially derogate from the intent or purposes of the Salem Zoning Ordinance. In fact,as hereinafter discussed,Mr. Osgood cannot prove even one of the three foregoing elements, let alone all three. Mr. Osgood has clearly not suffered a legally-recognized hardship pursuant to Massachusetts law. Essentially the hardship Mr. Osgood complains of is a mistaken opinion of an assistant Salem building inspector that Mr. Osgood could build the five-standing, 3-story,exterior staircase within the side lot setbacks provided in the Salem Zoning Ordinance without a variance, and Mr. Osgood's reliance on same in constructing said staircase. Yet it is well-settled Massachusetts law that a municipality cannot be bound by the mistakes of its municipal employees,including(in particular)building inspectors and even city solicitors and/or town counsel. See Cullen v. Building Inspector of North Attleborough,353 Mass. 671 (1968)and Malden v Werlin Realty, Inc.,349 Mass. 62 623 (1965). Ms.Moustakis' substantive rights to have the Salem Zoning Ordinance enforced for the protection of her property are not forfeited by the mistakes of the assistant building inspector. See also Brady v. Board ofAppeals of Westport,348 Mass. 515 (1965), where the Supreme Judicial Court held that the issuance of a building permit was inconsequential in a proceeding for enforcement of the local zoning ordinance. And consider too that Mr.Osgood's claitq hardship pales by comparison with the owner's"hardship" in Morels,which invo ved the substantial cost of purchasing the property and relocating his entire business to the site,which claim the Appeals Court rejected. Mr. Osgood is presumed to know the law. It was he who constructed the 3-story exterior staircase essentially on the shared side lot line with 2 Bentley Street in violation of the Salem Zoning Ordinance. As a result,it was he who created his own hardship and it is axiomatic under Massachusetts zoning law that hardship cannot be self-created- it is also important to keep in mind that Mr. Osgood is not the only person who can claim hardship because of the mistakes of the Salem Building Department Ms. Moustakis has been repeatedly harmed by said mistakes,and unlike Mr. Osgood, can be hardily accused of having anything to do with same, first by the Building Department's failure to shut 11 ntzi�y�jn�oe,�Q , s �ia�l� 1 2. Codtse.t?era�Q - a-s C10J.,ee ha.�=�•(� a� ,.,fie 65eh4ee owner of Lt 13e•.ff Yf7VG+) �jsrvlo ��JpS down the illegal 3-family use after 1966, second by Leo Tr'emblay's erroneous December)e4, 21, 1993 "determination" on the field card for 4 Bentley Street that the n�, 3-family dwelling,third by the Department's belief that the need for a suonea�lo{�egress trumped the setback requirements, and lastly, by the permission granted to Mr. Osgood to construct the exterior 3-staircase essentially on thesideproperty line withouthaving to obtain a variance. In the process Ms. Moustakishas bad to rete t liattorney, atconsiderable expense, which should not have beennecessaryhadtheBWlding Department properly done its job at each stage. 5,,,�I r& fv� �,So.fe. r2 s? ( ps /� /oQ s psSimilarly there are no special conditions or circu ances� j�� `�dingor structure within the meaning of Chapter 40A. Mr. Osgood's claims of such"special conditions',are the direct result of his having boxed himself in by selling portions of the yard to the owners of the two condominiums he created. Here age he is his own predicament,which is clearly not a basis for a hands responsible for NsvPar�h� 30� 2W T) �p�, el S OCGu o/� And finally, should anyone doubt than t i r 'r M h f Vvvp*.A*y Z 7-1 Zoos le substantial detriment to the public g granting wiu o nullify or subor said s s�tanaally derogatefrom the cause win not � M� said structturrintent or purposes of the Salem Zoning Ordinance,he or she need only look at h d. If the legal issues are difficult to resolve,should the Building Inspector and/or the Zoning Board of Appeals err on the side of It 04 enforcing the Salem Zoning Ordinance,or should the Building it rt 'tee Inspector and/or the ZBA err on the side of permitting what is � EY, otherwise clearly an illegal use? ze Answer. Clearly the former. ,� tP �< It should not be necessary to have to argue this obvious point. teoe_� It is important to keep in mind that it is likely there will be litigation whether Mr. Osgood ^6 loses or Ms. Moustakis loses. The Building Inspector and/or the Salem Zoning Board of Appeals should not attempt to perform the role of the courts but instead should err on they side of enforcing the Salem Zoning Ordinance,particularly if it Ends that the within � issues,which are primarily legal in nature,are difficult to resolve. Al G Respectfully Submitted, n rS Linda J. Moustalds, s',V By her Attorney, PJ August 15, 2006 �� John H. Carr,Jr., Esq s' s' 9 North Street k Salem,MA 01970 (978)825-0060 BBOH 075281 12 CITY OF SALEMs MASSACHUSETTS ' PUBLIC PROPERTY DEPARTMENT Igo WASHINGTON STREET, 3RD FLOOR - SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 EXT. 380 FAX: 978-740-9846 MAYOR November 22, 2005 Nicholas Osgood 4 Bentley Street Unit#3 Salem, Ma. 01970 RE: Building Permit#1006-05 Dear Mr. Osgood: This Department issued for your property building permit number 1006-05 to construct a second means of egress stairs from your third floor unit. At the time of issuance, this Department told you that the stair was exempt from zoning regulations because it is a required egress. Unfortunately, this Department has not been able to find any language allowing this egress to be exempt from zoning. The side setback for open decks and stairs is 5 feet. You are directed to correct this zoning violation within 60 days upon receipt of this notice. Your right to appeal is to the Salem Zoning Board of Appeals. If you wish to discuss this matter, please contact me directly. Sincerely, D A • / Thomas St. Pierre Zoning Enforcement Officer cc: Kate Sullivan, Mayors Office Elizabeth Rennard, Assistant Solicitor MEMORANDUM To: Thomas St. Pierre,Building Inspector and Zoning Enforcement Officer Members of the Salem Zoning Board of Appeals From: John H. Carr, Jr., Esq.,Attorney for Linda J. Moustakis Re: 4 Bentley Street Zoning Controversy Date: August 15,2006 1. STATEMENT OF CASE: Since it is uncontested that 4 Bentley Street is not a legal 3-family dwelling pursuant to a variance for the third unit,the only other way it could be a legal 3-family dwelling is if (a)the third unit was in existence as of the creation of the current Salem Zoning Ordinance in 1965, and continuously used since then, and therefore,grandfathered as a prior non-conforming use as a matter of law, or(b)pursuant to Mr. Osgood's argument that any action seeking to challenge said otherwise illegal third apartment is barred by the 6-year statue of limitations provided in Section 7 of Chapter 40A. 2• QUESTIONS PRESENTED: a. Is the 3rd apartment at 4 Bentley Street a legally-grandfathered, non-conforming use? b. Notwithstanding that 4 Bentley Street was not a legally- grandfathered,non-conforming use as of the creation of the current Salem Zoning Ordinance in 1965, and thus,was illegal as of its creation,does the limitations language contained in Section 7 of y Chapter 40A prevent the City and/or Ms. Moustakis from challenging what is otherwise an illegal use at the present time? C. Is Mr. Osgood entitled to a variance for the already-built, free- standing, 3-story exterior staircase at the rear of the rear ell of 4 Bentley Street,essentially located on the shared side lot line with 2 Bentley Street? d. If the legal issues are difficult to resolve, should the Building Inspector and/or the Zoning Board of Appeals err on the side of enforcing the Salem Zoning Ordinance,or should the Building Inspector and/or the Salem ZBA err on the side of permitting what is otherwise clearly an illegal use? 3. ARGUMENT: 1 a. Is the P apartment at 4 Bentley Street a legally-grandfathered, non- conforming use? Answer: No. It is clear from the overwhelming preponderance of the evidence that the third apartment at 4 Bentley Street is not a legally-grandfathered,non-conforming use for the following reasons: i. It is well-settled Massachusetts Law that the burden of proof is on those asserting the validity of an alleged non- conforming use or structure, and not on those contesting same. ii. Ms. Moustakis has submitted 6 Affidavits from people who have first-hand knowledge and experience with 4 Bentley Street, including from several who were tenants at said property during the period in question, all of which agree that 4 Bentley Street was in fact operated as a 2-family dwelling as of the enactment of the current Salem Zoning Ordinance in 1965. Said Affidavits are attached hereto as Exhibits A(1)-(6)inclusive. iii. Said Affidavits agree with the information for 4 Bentley Street contained in the annual Voting Lists and City Directories separately and independently published for calendar year 1965, and for several years both before and after 1965. iv. The annual Voting Lists for the City of Salem indicate the following residents of 4 Bentley Street during the following years: 1960 1964 Richard Audrey Douglas& Susan Call Florence Doran William&Faye Wilson 1961 1965 Richard Audrey Douglas& Susan Call Florence Doran Doris&Ronald Jalbert 1962 1966 Richard Audrey Helen Borowski Vacant Edward&Anna Lassiter 1963 Edward&Anna Lassiter William& Faye Wilson 2 V. The separately-published City Directory for the City of Salem indicates the following residents of 4 Bentley Street during the following years: 1960 1964 Florence Doran Douglas Call [No Name] William Wilson 1961 1965 Florence Doran Douglas Call [No Name] Ronald Jalbert 1962 1966 Directory Missing Helen Borowski Edward Lassiter 1963 William Wilson [No Name] vi. Of the two separate publications,the annual Salem Voting Lists are more reliable, in that a person's ability to vote is based on said information. vii. Notwithstanding that he has been aware of Ms. Moustakis' allegations at least since Mr. Carr's initial April 19, 2006 letter to the Salem ZBA, it is now approximately 4 months later and Mr. Osgood has still not submitted any countervailing evidence that the third floor apartment at 4 Bentley Street was in fact a prior non-conforming use as of the creation of the current Salem Zoning Ordinance in 1965. viii. Not only has he failed to affirmatively submit any evidence in behalf of his client,Mr. Wysor has also consistently refused to voluntarily submit Mr. Osgood to a short deposition by Mr. Carr, or have Mr. Osgood answer the following 3 specific and straightforward questions posed to Mr. Osgood in three separate letters faxed and mailed to Mr. Wysor on August 2,2006,August 7,2006, and August 8,2006 respectively: aa. Do you concede that 4 Bentley Street was in fact operated as a 2-family apartment dwelling as of the enactment of the current Salem Zoning Ordinance in 1965? 3 bb. If your position is that 4 Bentley Street was then being operated as a 3-family dwelling,what evidence do you have or intend to submit in support of same, especially considering that your client has the burden of proof on this issue? CC. If you have no such evidence,do I infer correctly that your claim that 4 Bentley Street is now a legal 3-family dwelling rests entirely on your Chapter 40A, Section 7 limitations argument as contained in your July 19, 2006 Memorandum to the Salem Zoning Board of Appeals? Attached hereto as Exhibits B(1)-(6) inclusive are copies of Mr. Carr's July 26,2006 and August 2, 2006 letters to Mr. Wysor,Mr. Wysor's incomplete and evasive reply of August 4, 2006, Mr. Carr's August 7, 2006 follow-up letter to Mr. Wysor,Mr. Wysor's August 8, 2006 letter to Mr. Carr, and Mr. Carr's reply of the same date. ix. Ms. Moustakis respectfully submits that the reason that Mr. Osgood has refused to voluntarily submit himself to a short deposition,has failed to answer the foregoing 3 specific and straightforward questions, and has failed to submit any affirmative evidence whatsoever on such issue, and thus, has failed to meet his burden of proof, is because no such evidence exists. X. Even if Ms. Moustakis were determined to have the burden of proof on this issue, she has clearly proved that 4 Bentley Street was a 2-family dwelling as of the creation of the current Salem Zoning Ordinance in 1965. b. Notwithstanding that 4 Bentley Street was not a legally- grandfathered, non-conforming use as of the creation of the current Salem Zoning Ordinance in 1%5,and thus,was illegal as of its creation,does the limitations language contained in Section 7 of Chapter 40A prevent the City and/or the neighbors from challenging what is otherwise an illegal use at the present time? Answer: No. Mr. Osgood cites only two cases in support of his Section 7 limitations argument: Moreis vs. Board of Appeals of Oak Bluffs,62 Mass. App. Ct. 53 (2004)and Hall vs. Zoning Board of Appeals of Provincetown, 56 Mass. App. Ct. 1103 (2002),Unreported. 4 Of the two,Moreis, instead of supporting Mr. Osgood's argument, supports Ms. Moustakis' argument,as hereinafter discussed,and Hall is a so-call re-script opinion, meaning that there is no discussions whatsoever of the principles upon which the case was decided. The facts of Moreis,as found by the Appeals Court, are as follows: J. Raymond Moreis, a residential owner, requested the local building inspector to issue a cease and desist order to a neighboring property owner,Frank M.Fenner,whose tenant was using Fenner's land, located in a residential district,for parking,maintaining and cleaning large trucks of several types; collecting and processing refuse,cans, and bottles; and other commercial uses. The inspector refused the enforcement request and Morcis appealed to the Oak Bluffs Zoning Board of Appeals("ZBA"). After conducting a hearing,the ZBA upheld the inspector's decision, and Moreis appealed to the Superior Court. Fenner's chief defense was that his use of the site was protected by the 6-year statue of limitations provided in Section 7 of Chapter 40A relative to enforcement actions. Moreis prevailed in the Superior Court and the trial judge ordered the ZBA to take all actions necessary to enforce the cessation of all commercial and non-residential use of the site. Fenner thereupon appealed the Superior Court decision to the Appeals Court, arguing that(1)the trial judge erred in determining that Fenner's use of his property was not protected under Section 7 of Chapter 40A by virtue of various building permits that had been issued to him and his predecessor in title; (2)the trial judge impermissibly substituted his judgment for that of the ZBA; and(3)the judge's findings of fact were clearly erroneous. Fenner's property consisted of two adjoining lots. One was a lot with a building (building lot)and the other was a paved lot, with perimeter fencing but no building(fence lot). The building lot,which had been owned by the town and used as a school gymnasium,was sold to one Everett A. Rodgers in 1958. Rogers then began using the building lot and building for his relocated trucking business, although the land was then (and at all material times since)zoned for residential use only,which residential zone did not permit trucking or any commercial uses. Rogers' business activities involved delivering food and beverages to local restaurants and stores,rubbish collection,and storage and maintenance of several kinds of trucks. In 1965 Roger's obtained a building permit relative to the building lot to build an addition for the purpose of"storage&garage"at a cost of$1,500.00. The building permit application did not indicate whether the use of the structure would be residential or commercial,but Roger's answered"yes"to the application's question, "Will the building conform to the requirements of the law?" In 1975, Rogers obtained a building permit to build a"Shelter for platform"at an estimated cost of$1,100.00. The"remarks"section of the application form recited, "This is just a canopy to cover existing platform." As with the 1965 building permit 5 application,Roger's answered`yes"to the application's question, "Will the building conform to the requirements of the law?" In 1979 Rogers purchased the adjoining lot(the fenced lot),which he then,without any permit or other approvals,paved and began using for truck storage. In 1988 Rogers became ill and began negotiating the sale of both lots to Fenner, who was in the refuse and reprocessing business. In contemplation of the purchase,Fenner had discussions and correspondence with the then building inspector for the town of Oak Bluffs,Alishin Haigazian, concerning the historic uses of the property and Fenner's intention to continue those uses and to relocate his refuse business to the site. Rogers died in 1989. That same year,Rogers' nephew, Richard Mavro became building inspector. Fenner completed the purchase of the site from the Roger's estate, and subsequently,on July 6, 1989, Mavro issued a building permit to Fenner which recited, in relevant part, "permit to build or alter...a commercial building...to be occupied for commercial use...provided that[the owner] shall in every respect conform to the terms of the application on file in this office...[and]subject to all applicable codes and ordinances." Emphasis added. In May of 1989,Fenner was also issued a building permit for the fenced lot to "build or alter a fence...for storage and security...subject to all applicable codes and ordinances." The application for the fence permit described"type of improvement"as "addition,"and "proposed use"as"non-residential...storage of trucks and equipment" Emphasis added. In 1989 Fenner moved his refuse business and his company's entire maintenance operation(including recycling trucks,large commercial rubbish packing trucks, and rubbish collection vehicles)to the site. The trial judge found that the commercial uses of the site by Rogers and Fenner(including Fenner's subsequent tenant who was involved mi the same type of business as Fenner was)had never conformed to the permitted residential zoning nor had any form of zoning relief ever been sought. Fenner's primary defense on appeal was that his non-conforming uses were grandfathered by virtue of the 6-year enforcement limitation contained in Section 7 of Chapter 40A based on the 1965, 1975, and two 1989 building permits,and the fact that Moreis did not file his Superior Court action until May of 1997,ie. 32 years after the 1965 building permit, 22 years after the 1975 building permit, and 8 years after the two 1989 building permits. In upholding the Superior Court decision,the Appeals Court held that Fenner had the burden of proving the nature of the particular uses authorized by the earlier building permits;that he also had the burden of proving that the uses for which he sought protection were allowed by the permits; and that he failed to meet said burdens. Notwithstanding the references to "commercial uses"in several of the building permits, the Appeals Court emphasized that there was no basis"for concluding that [Fenner's] commercial activities,or Rogers' for that matter,were allowed by any permit,or 6 undertaken consequent to the issuance of any permit"adding`Because Fenner's use of the property was never allowed by a permit,there is no limitations period for actions to redress that violation of the zoning by-law." Emphasis added. There are several remarkable similarities between Moreis and the issues involving 4 Bentley Street. In both cases the owner's sole defense to a present enforcement action was/is that it is barred by the 6-year statue of limitations provided in Section 7 of Chapter 40A. In both the non-conforming use did not commence after the issuance of the building permit,but had existed for many years before. In both the owner was/is trying "an end run"by attempting to validate(based on Section 7)an illegal use that he was not otherwise entitled to. In both there were references in the building permit applications and/or the building permits to the already-existing illegal uses. In both cases,the building permit application and the building permit contained a form question—in Salem's case this was"Will building conform to law?"—to which Mr. Osgood (like Fenner)answered"Yes." And in both,there were potentially troubling inferences concerning the actions of the then building inspector. In Moreis the building inspector who issued the two 1989 building permits to Fenner was the nephew of Rogers whose estate sold Fenner the two lots the same year. In our case,there is the November 12, 1993 letter from the then Building Inspector/Zoning Enforcement Officer, Leo E. Tremblay,to the then owner of 4 Bentley Street, a copy of which is attached hereto as Exhibit C,which recited the following: This office has learned you are trying to rent a third floor apartment at the above reference address. The records in this department show this property to be a two family dwelling in a Residential Two Family District(R-2). To allow use as more than two family would require a variance from the City of Salem Zoning Board of Appeals. This letter was followed approximately two weeks later by Mr. Tremblay's November 29, 1993 letter to the then owner of 4 Bentley Street, a copy of which is attached hereto as Exhibit D,which recited the following: We have been informed that you have rented a third floor apartment in the above referenced property. You were told by this department in a letter dated November 12, 1993 that you could not have a third unit there,that this property,according to our records, is only a two family dwelling, and it would require Board of Appeal action to increase the use. You have evidently chose to ignore my letter. 7 You are hereby ordered to cease and desist all illegal use of the property and to contact this office upon receipt of this notice to advise use of your intentions. Failure to comply will result in the appropriate legal action being taken. Yet, on December 21, 1993,less than one month after his November 29, 1993 letter,Mr. Tremblay signed a statement on the field card for 4 Bentley Street that read"Determined to be a lawful three(3)family dwelling as per the Zoning Enforcement Officer:"opposite his signature. Said determination was unsupported by any reasoning or reasons for the change whatsoever. At apparently the same time the box in the field card listing"No. Of Families"was obviously altered by hand from"2"to "3." A copy of said field card is attached hereto as Exhibit E. Again,Moreis is one of the only two cases cited by attorney Wysor in his July 19, 2006 Memorandum to the Salem Board of Appeals,the other being a re-script decision entitled Hall v. Zoning Board of Appeals of Provincetown, 56 Mass. App. Ct. 1103 (2002), Unreported, in which there was absolutely no discussion whatsoever of the principles upon which the one-line decision was based. Moreis is an especially strong case because(given the obvious nature of the non- conforming trucking and commercial uses)the Appeals Court could have found that Moreis knew or should have known of said illegal nonconforming uses for purposes of commencing the 6-year statute of limitations provided in Section 7 of Chapter 40A. Clearly the Court was bending over backwards to reject Fenner's Section 7 argument, and given the extent of same,it seems obvious that the Court generally frowns on said arguments. It should also be kept in mind that in Moreis the enforcement action occurred 32 years after the oldest(ie. 1965)building permit, whereas in our case the building permit was issued only 9 years from the requested enforcement action. Lord v. Zoning Board of Appeals of Somerset, 30 Mass. App. Ct. 226 (199 1)was another decision where the Massachusetts Appeals Court rejected an owner's contention that a zoning enforcement action was barred by the 6-year statute of limitation provided in Section 7 of Chapter 40A. In that case an owner of a single-family property had obtained a building permit in 1966 authorizing an addition to the first floor consisting of two bedrooms and a living room. At the same time the owner converted the original bedroom and living room on the first floor to a kitchen and bathroom. Between 1967 and 1976 the owner did additional work without benefit of a building permit,adding three bedrooms and a living room in the basement(which already had a kitchen and bathroom). In March of 1972 the same owner obtained a building permit to construct a 2-car garage, which he used(along with the 1966 building permit)as the basis for his contention that the 1998 enforcement action was barred by the 6-year statute of limitations provided in 8 Section 7 of Chapter 40A. Both the trial Court and the Appeals Court rejected said argument. Cape Resort Hotels, Inc. v. Alcohols Lic. Bd. of Falmouth, 385 Mass. 205 (1982) involved a hotel which had operated as a lawful,preexisting nonconforming use in a residential district. At issue was the change in use of particular rooms in the hotel: a reading area had become a disco;part of an enclosed porch had become a game room; and a"frolic room"had become a"show room." After rejecting the owner's argument that the changes continued to enjoy the protection of Chapter 40A, Section 6,the Supreme Judicial Court rejected the landowner's claim that a single permit to enclose a porch provided Section 7 protection for"the entire present use of the hotel's ground floor,"and instead examined the hotel's present uses, and any prior building permits, on a room-by-room basis. Of the multiple uses for which the landowner sought protection, the Court concluded that only the show lounge was protected by Section 7,because the documents accompanying an earlier permit application for an addition which subsequently became the show lounge "indicated very clearly that the space would include a bar,cocktail lounge,and entertainment facilities—the specific uses in effect at the time of trial. See also Feuer v. Board of Appeals of Stoneham, 57 Mass. App. Ct. 1114 (2003)where a nonconforming use of the property as a banquet facility and other use violations were not protected by the 6-year statute of limitations from an enforcement action to redress violations of the zoning by-law that were in force as of the issuance of the building permit more than six years before. It seems clear that Section 7 usually applies where there is a prior permitted use, a building permit which is subsequently obtained which clearly references a change of use, reasonable notice of said permit or change of use, a change of use in reliance on said permit(both in terms of construction and subsequent use)on the part of the owner,and a challenge to said use fled more than 6 years after the issuance of the building permit. In Garabedian v. Westland, 59 Mass. App. Ct. 427 (2003),the Appeals Court held that a Superior Court judge had correctly determined that the Zoning Board of Appeals of Southborough had acted within its discretion in affirming the building inspector's denial of a permit for a second airplane hanger to be constructed at the owner's residence and for expansion of the original hanger and airstrip; because such use of the land in an R-1 zone was not a customary and incidental assessory use under the town's zoning by-laws. The Appeals Court also held that the Superior Court trial judge had properly ruled that the building-permit-related 6-year limitations period in Section 7 of Chapter 40A barred the neighbors' enforcement action(challenging said use more than 12 years after the fact) because they knew or should have known about the use of the original hanger from the inception of the process. See also Lapidus v. Board ofAppeal of Boston, 51 Mass.App. Ct. 723 (2001). Although not technically a Section 7 case,the Appeals Court found that the doctrine of laches 9 barred an enforcement action sought by a neighboring residential owner against a restaurant more than 23 years after the City of Boston issued a building permit converting a conforming residential use to a restaurant with entertainment. At page 727,the Appeals Court stated that"During that time [ie. the 23 years since the building permit had been issued],the conditions here complained of should have been obvious to the plaintiff,and no action by the defendants,or anyone else,barred or prevented the plaintiff from taking action at a far earlier date." Emphasis added. In our case there is no similar reasonable imputation of knowledge for purposes of commencing the 6-year statute of limitation. Ms. Moustakis has filed an affidavit in which she states under oath that Mr. Osgood did not display any building permit for the exterior staircase at 4 Bentley Street"so that it is visible from the street,"as is required, nor did he display the February 1997 building permit so that it was clearly visible from the street. And unlike the 3-story staircase, which gave her every opportunity to realize that something was amiss,there was no such constructive notice concerning the February 1997 building permit. Not only was she unaware of the February 1997 building permit, she was not even aware of the interior"renovations to the third floor apartment." Had she been aware of Mr. Osgood's February 1997 building permit, she would have immediately contested same,just as she did immediately following construction of the 3- story exterior staircase,which(according to the application for the building permit) consisted simply of removing and replacing two non-bearing interior walls, and renovating the 3rd floor bathroom. Surely that is distinguishable from the constructive notice of construction of an airplane hanger in an R-1 zone in Garabedian or replacing a residential use with a restaurant with entertainment in an R-1 zone in Lapidus. C. Is Mr.Osgood entitled to a variance for the atready-built, free- standing,3-story exterior staircase essentially located on the side lot line at the rear of 4 Bentley Street? Answer: No. In order to be entitled to a variance for the already built, free-standing, 3-story exterior staircase,Mr. Osgood would have to prove each of the following three elements as a matter of law: i. That he has suffered a legally-recognized hardship; ii. That there are special conditions or circumstances affecting the land,building, or structure; and iii. That granting a variance for said staircase will not cause substantial detriment to the public good and will not nullify or substantially derogate from the intent or purposes of the Salem Zoning Ordinance. In fact,as hereinafter discussed,Mr. Osgood cannot prove even one of the three foregoing elements, let alone all three. 10 Mr. Osgood has clearly not suffered a legally-recognized hardship pursuant to Massachusetts law. Essentially the hardship Mr. Osgood complains of is a mistaken opinion of an assistant Salem building inspector that Mr. Osgood could build the free-standing, 3-story, exterior staircase within the side lot setbacks provided in the Salem Zoning Ordinance without a variance, and Mr. Osgood's reliance on same in constructing said staircase. Yet it is well-settled Massachusetts law that a municipality cannot be bound by the mistakes of its municipal employees, including(in particular)building inspectors and even city solicitors and/or town counsel. See Cullen v. Building Inspector of North Attleborough, 353 Mass. 671 (1968)and Malden v. Werlin Realty, Inc., 349 Mass. 62 623 (1965). Ms. Moustakis' substantive rights to have the Salem Zoning Ordinance enforced for the protection of her property are not forfeited by the mistakes of the assistant building inspector. See also Brady v. Board of Appeals of Westport, 348 Mass. 515 (1965),where the Supreme Judicial Court held that the issuance of a building permit was inconsequential in a proceeding for enforcement of the local zoning ordinance. And consider too that Mr. Osgood's claimed hardship pales by comparison with the owner's "hardship"in Morels,which involved the substantial cost of purchasing the property and relocating his entire business to the site,which claim the Appeals Court rejected. Mr. Osgood is presumed to know the law. It was he who constructed the 3-story exterior staircase essentially on the shared side lot line with 2 Bentley Street in violation of the Salem Zoning Ordinance. As a result,it was he who created his own hardship and it is axiomatic under Massachusetts zoning law that hardship cannot be self-created. It is also important to keep in mind that Mr. Osgood is not the only person who can claim hardship because of the mistakes of the Salem Building Department. Ms. Moustakis has been repeatedly harmed by said mistakes,and unlike Mr. Osgood, can be hardily accused of having anything to do with same, first by the Building Department's failure to shut down the illegal 3-family use after 1966, second by Leo Tremblay's erroneous December 21, 1993 "determination" on the field card for 4 Bentley Street that the property is a legal 3-family dwelling,third by the Department's belief that the need for a second means of egress trumped the setback requirements,and lastly,by the permission granted to Mr. Osgood to construct the exterior 3-staircase essentially on the side property line without having to obtain a variance. In the process Ms. Moustakis has had to retain an attorney,at considerable expense,which should not have been necessary had the Building Department properly done its job at each stage. Surely the actual hardships of a Salem resident(who is fighting to preserve the integrity of her neighborhood) should be considered at least as much as the claimed hardship of the abstinee owner of 4 Bentley Street who lives in Vermont. Similarly there are no special conditions or circumstances affecting the land,building, or structure within the meaning of Chapter 40A. Mr. Osgood's claims of such"special 11 conditions"are the direct result of his having boxed himself in by selling portions of the yard to the owners of the two condominiums he created. Here again,he is responsible for his own predicament,which is clearly not a basis for a hardship. Those sales occurred on November 30, 2005, eight days after Mr. St. Pierre's November 22, 2005 letter to Mr. Osgood notifying him that the staircase was"not exempt from zoning." Copy of said letter is attached hereto as Exhibit F. On information and belief, Mr. Osgood never disclosed Mr. St. Pierre's November 22,2005 letter to either condominium buyer prior to said November 30, 2005 sales,if at all. And finally, should anyone doubt that granting a variance for said staircase will not cause substantial detriment to the public good and/or will not nullify or substantially derogate from the intent or purposes of the Salem Zoning Ordinance,he or she need only look at said structure. d. If the legal issues are difficult to resolve, should the Building Inspector and/or the Zoning Board of Appeals err on the side of enforcing the Salem Zoning Ordinance, or should the Building Inspector and/or the ZBA err on the side of permitting what is otherwise clearly an illegal use? Answer: Clearly the former. It should not be necessary to have to argue this obvious point. It is important to keep in mind that it is likely there will be litigation whether Mr. Osgood loses or Ms. Moustakis loses. The Building Inspector and/or the Salem Zoning Board of Appeals should not attempt to perform the role of the courts but instead should err on the side of enforcing the Salem Zoning Ordinance,particularly if it finds that the within issues,which are primarily legal in nature,are difficult to resolve. Respectfully Submitted, Linda J. Moustakis, By her Attorney, August 15, 2006 John H. Carr,Jr., Esq. 9 North Street Salem, MA 01970 (978) 825-0060 BBO#075281 12 s John H. Carr,Jr.,Esq. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 August 18, 2006 By Hand Thomas St. Pierre, Building Inspector City of Salem 120 Washington Street, 3`d Floor Salem, MA 01970 RE: 4 Bentley Street, Salem, MA Dear Mr. St. Pierre: After hand-delivering my August 15, 2006 package to you,to Beth Rennard's office, and to Nina Cohen's home, I was embarrassed to discover a few"typos"and omissions on pages 5, 8, 9, 10, 11 and 12 thereof. I have since corrected same, which corrections are indicated by hand(for greater clarity) on the enclosed original copies of said pages of my August 15, 2006 Memorandum. I am also herewith enclosing a corrected"clean"Memorandum, including Exhibit F. I am now proceeding with sending the enclosed corrected copies to all concerned. Incidentally, I indicated in my August 15, 2006 cover letter to you that Mrs. Gill has owned and resided in the Daniel's house at 1 Daniels Street(which shares a rear lot line with 2 Bentley Street, and is literally in the shadow of the 3-story,free-standing, exterior staircase illegally built at the rear of 4 Bentley Street)"for over 40 years." While that is true as far as it goes, let me be more specific: she has owned the house since 1945,which (obviously)makes it 61 years. Also,I am informed that there is a minor typo in paragraph no. 3 of the previous-filed affidavits of both Bernard Bartnicki and his wife, Jennie Bartnicki, both dated July 14, 2006. In paragraph no. 2 of both affidavits they each aver that they visited their brothers and sisters who continued to reside in the Bartnicki family homestead at 2 Bentley Street, Salem MA virtually every weekend from 1941 until 1998 (approximately). In paragraph no. 3 the same dates are reflected for how long 4 Bentley Street was continually operated as a 2-family dwelling,consisting of one unit on the first floor and a second unit on the second floor,but the end date should have recited"approximately 1968,"and not 111998:' I will be correcting those Affidavits, and filing same, in due course. Incidentally, on pages 7 and 8 of my enclosed"clean"Memorandum I have quoted Mr. Tremblay's November 12, 1993 and November 29, 1993 letters exactly as they were originally written. If there are typographical errors,they are his and not mine. 3icitor Enc. Cc Elizabeth Rennard, E<sq., Nina Cohen, Chairperson, Salem Zoning Board of Appeals Ms. Linda J. Moustakis Matthew Kelleher, 0 floor owner,4 Bentley Street Victoria Regan, 2nd floor owner,4 Bentley Street John H. Carr, Jr., Esq. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 September 5,2006 By Hand Salem Zoning Board of Appeals City of Salem 120 Washington Street, 3`d Floor Salem, MA 01970 RE: 4 Bentley Street, Salem,MA Dear Members: My client, Linda Moustakis, of 2 Bentley Street, Salem, Massachusetts hereby appeals the August 31,2006 determination by Thomas St. Pierre, Salem Zoning Enforcement Officer,that 4 Bentley Street is a legal 3-family dwelling. I am enclosing a copy of said determination letter from which my client is appealing,which I received in this morning's mail. Would you kindly let me know whether the ZBA hearing on this appeal will be consolidated with the continued hearing on the application of the owner of 4 Bentley Street,Nicholas Osgood, for a variance to ratify the already-built, 3-story exterior staircase on the shared side lot line between 2 Bentley Street and 4 Bentley Street,which continued bearing is presently scheduled for Wednesday, September 20,2006 at 6:30 p.m. in the Building Inspector's office. Would you also kindly confirm your receipt of this notice of appeal letter by date- stamping the enclosed copy thereof. Thank you for your attention to the foregoing. ery John H. Enc. Cc Elizabeth Rennard, Esq., City Solicitor Nina Cohen, Chairperson, Salem Zoning Board of Appeals Members of Salem Zoning Board of Appeals Ms. Linda J. Moustakis Matthew Kelleher, 1't floor owner, 4 Bentley Street Victoria Regan,2nd floor owner,4 Bentley Street oawa� CITY OF SALEM, MASSACHUSETTS PUBLIC PROPERTY DEPARTMENT 120 WASHINGTON STREET, 3RD FLOOR Y ( SALEM, MASSACHUSETTS 01 970 TELEPHONE: 978-745-9595 EXT. 380 FAX: 978-740-9846 KIMBERLEY DRISCOLL MAYOR August 31, 2006 John H. Carr Jr., Esquire 9 North Street Salem,Ma. 01970 RE: 4 Bentley Street Dear Mr. Carr: I have reviewed the information regarding the legal status of 4 Bentley Street. It is my opinion that 4 Bentley is a 3 family dwelling. It is my understanding that the third unit is protected from any action by the City due to the provisions of Mass General Law 40A, Section 7 If you wish to appeal this determination, you must file an appeal with the Salem Zoning Board of Appeals. It should be noted, the issue of the three family status is not before the Board. The issue before the Board is the exterior deck and stairway. Sincere/t//y, Thomas St. Pierre Zoning Enforcement Officer Building Commissioner cc: Philip Wysor, Esq. Elizabeth Rennard, Solicitor Jerry Pariselta, Assistant Solicitor 0 our CITY OF SALEM MASSACHUSETTS PUBLIC PROPERTY DEPARTMENT 120 WASHINGTON STREET, 3RD FLOOR ( SALEM, MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 EXT. 380 FAX: 978-740-9846 KIMBERLEY DRISCOLL MAYOR August 31, 2006 John H. Carr Jr., Esquire 9 North Street Salem,Ma. 01970 RE: 4 Bentley Street Dear Mr. Carr: I have reviewed the information regarding the legal status of 4 Bentley Street. It is my opinion that 4 Bentley is a 3 family dwelling. It is my understanding that the third unit is protected from any action by the City due to the provisions of Mass General Law 40A, Section 7 If you wish to appeal this determination, you must file an appeal with the Salem Zoning Board of Appeals. It should.be noted, the issue of the three family status is not before the Board. The issue before the Board is the exterior deck and stairway. Sincerely, _ Thomas St. Pierre Zoning Enforcement Officer Building Commissioner cc: Philip Wysor, Esq. Elizabeth Rennard, Solicitor Jerry Parisella, Assistant Solicitor John H. Carr,Jr., Esq. 9 North Street Salem,MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 September 5,2006 By Hand Salem Zoning Board of Appeals City of Salem 120 Washington Street, 3`d Floor Salem,MA 01970 RE: 4 Bentley Street, Salem,MA Dear Members: My client, Linda Moustakis,of 2 Bentley Street, Salem, Massachusetts hereby appeals the August 31,2006 determination by Thomas St. Pierre, Salem Zoning Enforcement Officer,that 4 Bentley Street is a legal 3-family dwelling. I am enclosing a copy of said determination letter from which my client is appealing,which I received in this morning's mail. Would you kindly let me know whether the ZBA hearing on this appeal will be consolidated with the continued hearing on the application of the owner of 4 Bentley Street;Nicholas Osgood,for a variance to ratify the already-built, 3-story exterior staircase on the shared side lot line between 2 Bentley Street and 4 Bentley Street,which continued hearing is presently scheduled for Wednesday, September 20,2006 at 6:30 p.m. in the Building Inspector's office. Would you also kindly confirm your receipt of this notice of appeal letter by date- stamping the enclosed copy thereof. Thank you for your attention to the foregoing. ery John H. Enc. Cc Elizabeth Renard, Esq.,City Solicitor Nina Cohen,Chairperson, Salem Zoning Board of Appeals Members of Salem Zoning Board of Appeals Ms. Linda J. Moustakis Matthew Kelleher, 1'`floor owner, 4 Bentley Street Victoria Regan,2°d floor owner,4 Bentley Street John H. Carr,Jr.,Esq. 9 North Street Salem,MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 September 5,2006 By Mail &By Facsimile: 978-740-9846 Thomas St. Pierre, Building Inspector City of Salem 120 Washington Street, 3`d Floor Salem, MA 01970 RE: 4 Bentley Street, Salem, MA Dear Mr. St. Pierre: As a follow-up to my earlier notice of appeal letter of today's date, I assume you are aware that Section 7 of Chapter 40A of the Massachusetts General Laws includes the following provision: "If the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer or board declines to act,he shall notify, in writing,the party requesting such enforcement of any action or refusal to act, and the reasons therefore,within fourteen days of receipt of such request." [Emphasis added]. Both sides submitted memoranda of law regarding Section 7. Attorney Wysor's memorandum cited only two cases in support of his interpretation of Section 7, one of which contained absolutely no explanation whatsoever, and the other,Moreis v. Oakbluffs Board of Appeals, 62 Mass. App. Ct. 53 (2004), did not support his interpretation at all,but instead, supported my interpretation. Unlike the one remaining unexplained decision attorney Wysor cited,my memorandum cited a number of reasoned appellate decisions in addition to Moreis, all of which supported my interpretation of Section 7. The sole reason you give for your opinion that 4 Bentley Street is a 3-family dwelling in your August 31, 2006 letter is that"the third unit is protected from any action by the City due to the provisions of Mass General Law 40, Section 7,"without any explanation as to what you mean by that,which(with all due respect)begs the question. Having in mind that it is the appellate courts of Massachusetts who interpret what Section 7 means, would you kindly comply with your above-quoted statutory obligation and, for the edification(initially)of the Salem Zoning Board of Appeals, and(ultimately)the Essex Superior Court, give the reasons why you have interpreted Section 7 in this case as you have done,especially in view of the multiple Massachusetts appellate decisions that all take a contrary position. Surely you realize why both the Salem ZBA and ultimately the Essex Superior Court need a clear record for evaluating your(and your predecessors') actions. Thank you in advance for you anticipated(and belated)compliance with your foregoing statutory obligation. ZZoning Cc Elizabeth Rennard, y Facsimile: 978-745-9157 Nina Cohen, Chairppeals Ms. Linda J. Moustakis Matthew Kelleher, 1 sc floor owner, 4 Bentley Street Victoria Regan, 2°d floor owner, 4 Bentley Street 09.'08!2008 17:92 FAX 978 828 0088 JOHN H. CARR, JR. , ESQ. 12002 John H. Carr,Jr.,Esq. 9 North Street Salem,MA 01970 Phone: 978-825-0060 Pax: 978-825-0068 September 5,2006 By Mail&By Facsimile:978-740-9846 Thomas St. Pierre,Building Inspector City of Salem 120 Washington Street,3`d Floor Salem,MA 01970 RE: 4 Bentley Street, Salm,MA Dear Mr. St.Pierre: As a follow-up to my earlier notice of appeal letter of today's date, I assume you are aware that Section 7 of Chapter 40A of the Massachusetts General Laws includes the following provision: "if the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedh in violation of the same and sueb officer or board declines to act,he shall notify,in writing,the party requesting such enforcement of any action or ref Lwlto act,and the reasons therefore,within fourteen days of receipt of such request" (Emphasis added]. Both sides submitted memoranda of law regarding Section 7. Attorney Wysor's memorandum cited only two cases in support of his interpretation of Section 7,one of which contained absolutely no explanation whatsoever,and the other,:Voreis v- Oakbluffs Board of Appeals,62 Mass,App. Ct.53 (2004)*did not support his interpretation at all, but instead,supported my interpretation. Unlike the one remaining unexplained decision attorney Wysor cited,my memorandum cited a number of reasoned appellate decisions in addition to Morels,all of which supported my interpretation of Section 7. The sole reason you give for your opinion that 4 Bentley Street is a 34amily dwelling in your August 31,2006 letter is that"the third unit is protected from any action by the City due to the provisions of Mass General Law 40, Section 7,"without any explanation as to what you mean by that,which(with all due respect)begs the question. Having in mind that it is the appellate courts of Massachusetts who interpret what Section 09,05/2008 17:42 FAX 979 825 0088 JOHN H. CARR, JR. , ESQ. lzoo0 .J 7 means,would you kindly comply with your above-quoted statutory obligation and, for the edification (initially)of the Salem Zoning Board of Appeals, and(uh imately)the Essex Superior Court, give the reasons why you have interpreted Section 7 in this case as you have done,especially in view of the multiple Massachusetts appellai a decisions that all take a contrary position. Surely you realize why both the Salem ZBA and ultimately the Essex Superior Court need a clear record for evaluating your(and your predecessors')actions. Thank you in advance for you anticipated(and belated) compliance with your foregoing statutory obligation. ery r' John H Jr.' Cc Elizabeth Rennard,t sq.,City Solicitor—By Mail y Facsimile: 918-745-9157 Nina Cohen, Chairpa Salem Zoning $Appeals Ms.Linda J. Moustakis Matthew Kelleher, I'floor owner,4 Bentley Street Victoria Regan, 2"d floor owner,4 Bentley Street I AFFIDAVIT OF WlDWAM WI4�011 CON[�FRNING 4 BENTLEY STRF I,William Wilson,being duly sworn,hereby swear that the following is true: 1. I currently reside at 4200 South East 47"Place,Ocala,Florida 34480. 2. During 1963 and 1964,I resided in the rat floor apartmumt at 4 Bentley Street,Salem,Massachusetts during 1963 and 1964. 3 As I am 73 years old now, I was then 43 and 44 years old. 4 During my entire occupancy of my first floor apartment at 4 Bentley Street,the property was operated as a 2-family apartment building,the ypc,aim unit being then occupied by an Edward Lassiter and his wife, Anna Lassiter. 5. I am not related by blood or by marriage to Linda Moustakis of 2 Bentley Street, Salem,Massachusetts,01970. Signed under oath this 1774 4 day of July 2006. .,l�11�d�-- E Ni; . A 2 AFFIDAVIT OF MARIANNE DICK CONCERNING 4 BENTLEY STREET I,Marianne Bick,being duly sworn,hereby swear that the following is tete: 1. I currently reside at Unit No. 217 of the Cherry Hill Condominium Apartments,4 Duck Pond Road, Danvers,Massachusetts 01923. 2. My brother, Stanley Doren,and I lived at the second floor unit at 4 Bentley Street,Salem,Massachusetts from 1957 to 1961 inclusive. 3. During the entire time we resided at 4 Bentley Street, the property was operated as a 2-family apartment building. 4. In 1961 we moved just around the comer to 155 Derby Street,where we continued to reside until 1968. 5. Even after my brother and I moved to 155 Derby Street in 1961,we continued to be very familiar with 4 Bentley Street,not only because we were intimately familiar with the neighborhood in general, having grown up there,but also because we had several fiends and relatives living on Bentley Street,including our cousins,Philip and Louis Swi much,who resided at 14 Bentley Street. 6. During the period 1961 to 1968 inclusive,4 Bentley Street was likewise continuously operated as a 2-family apartment building. 7. I am not related by blood or by marriage to Linda Moustaki s of 2 Bentley Street, Salem,Massachusetts,01970. Signed under oath this I ( P/day of July 2006. 7/I L1/d —cMarianne Bick AFFIDAVIT OF STANLEY VO-RW CONCERNING 4 BENTLEY STREET I, Stanley Doran,being duly sworn,hereby swear that the following is true 1. I currently reside at 12 Cedar Wffl Drive,Danvers,Massachusetts,01923. 2 My sister,Marianne Bick,and I lived at the second floor unit at 4 Bentley Street,Salem,Massachusetts from 1957 to 1961 inclusive. 3. During the entire time we resided at 4 Bentley Street,the property was operated as a 2-family apartment building. 4. In 1961 we moved just around the comer to 155 Derby Street,where we continued to reside until 1969. 5. Even after my sister and I moved to 155 Derby Street in 1961,we continued to be very familiar with 4 Bentley Street,not only because we were intimately familiar with the neighborhood in general,having grown up there, but also because we had several friends and relatives living on Bentley Street,including our cousins,Philip and Louis Swiniuch,who resided at 14 Bentley Street. 6. During the period 1961 t01968 inclusive,4 Bentley Street was likewise continuously operated as a 2-family apartment building. 7. I am not related by blood or by marriage to Linda Moustalds of 2 Bentley Street,Salem,Massachusetts,01970. Signed under oath this %'f(day of July 2006. _ rf' Stanley YVDbOc "k AFFIDAVIT OF SANDRA I BALDWIN CONCERNING 4 BENTLEY STREET I, Sandra J. Baldwin,being duly sworn,hereby swear that the following is true. 1. I reside at 1 Washington Street,Salem,Massachusetts 01970. 2 1 am an office manager of the Boston Law firm of Goodwin Procter, formally Goodwin,Procter&Hoar. 3. My mother,whose maiden name was Helen Bartnicl i,grew up in the Bartnicki family homestead along with her 6 siblings, including our uncle, Bernard Barinicki,who is also submitting an affidavit,along with his wife, Jennie. 4. 1 am intimately familiar with 4 Bentley Street,Salem,Massachusetts,not only because I grew up at 2 Bentley Street, but also because I continued to visit numerous friends and relatives in the neighborhood even atter moving out of4Bentley Street in 1954. 5. 1 can unequivocally state that until 1968(at a minimum)4 Bentley Street, Salem,MA had been continuously operated as a 24amily apartment building,with one apartment on the first floor and the other on the second. 6. I now realize that a variance was never obtained for 4 Bentley Street to become a 3-family property,nor was it grandfathered as a legal 3-family property as of the creation of the current zoning in 1965. Signed under oath this 1,,5' day of July 2006. Sandra J. Baldwin Iik A AFFIDAVIT OF BERNARD BARTNICIQ CONCERNING 4 BENTLEY STREET 1, Bernard Bartnicki,being duly sworn,hereby swear that the following is true: 1. I currently reside at 122 Locust Street,Danvers,Massachusetts 01923 with my wife of 65 years,Jennie Bartnicki. 2. From the time my wife and I married in 1941,until 1998(approximately), we visited my sisters and brothers,who resided in the Bartuicki family homestead at 2 Bentley Street, Salem,Massachusetts,virtually every weekend. 3. I can unconditionally state from first ham knowledge that 4 Bentley Street was continuously used as a 2-family apartment building from 1941 to at least 1998 (at a minimum),which consisted of a first floor unit,and a second unit on the second floor. Signed under oath this f day of July 2006. Q A 14 Bernard Bartnicki 1CI�li b�t A 6 AFFIDAVIT OF JENNIE BARTNICIQ CONCERNING 4 BENTLEY STREET I, Jennie Bartnicki,being duly sworn,hereby swear that the following is true: 1. I currently reside at 122 Locust Street,Danvers, Massachusetts 01923 with my husband of 65 years,Bernard Bartnicki. 2. From the time my husband and I married in 1941,until 1998 (approximately),we visited my sisters and brothers,who resided in the Bartnicki family homestead at 2 Bentley Street, Salem,Massachusetts, virtually every weekend. 3. 1 can unconditionally state from first-hand knowledge that 4 Bentley Street was continuously used as a 2-family apartment building from 1941 to at least 1998 (at a minimum), which consisted of a first floor unit,and a second unit on the second floor. ff Signed under oath this day of July 2006. Jennie Bartnicki John H. Carr,Jr., Esq. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 July 26,2006 By Facsimile: 978-921-7809 Philip C. Wysor 8 Washington Street Beverly. MA 01935 Re: 4 Bentley Street Dear Phil: Would you have any problem in voluntarily making your client available for a short deposition,thereby saving me from having to jump through the procedural"hoops?" I don't mind going to Vermont, if you or your client prefer my doing the deposition there, as opposed to my office or yours. Please advise. (Incidentally,did you know that you are literally the last person listed in the Salem/Beverly telephone directory under"W"?) Very truly yours, John H. Carr,Jr. Cc. Elizabeth Rennard, Esq., City Solicitor Nina Cohen, Chairperson, Salem Zoning Board Thomas St. Pierre, Salem Building Inspector Ms. Linda Moustakis �xlri�b� t � Z John H. Carr, Jr., Esq. 9 North Street Salem,MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 August 2,2006 By Mail &By Facsimile: 978-921-7809 Philip C. Wysor, Esq. Glovsky&Glovsky 8 Washington Street Beverly,MA 01935 Re: 4 Bentley Street Dear Phil: I note that it is now exactly 1 week since I faxed you my July 26,2006 letter, another copy of which I am herewith enclosing, and I have not yet received the courtesy of a response of any kind from you. I would still like to do a short deposition of your client, but in the meantime I am asking whether you concede that 4 Bentley Street was in fact operating as a 2-family dwelling as of the enactment of the current Salem zoning ordinance in 1965. If you are unwilling to make such a concession,I am further asking what evidence you have in support of your contention that 4 Bentley Street was being operated as a 3-family dwelling as of said enactment, especially in light of the multiple sworn affidavits I have already submitted to the ZBA and the fact that your client has the burden of proof on this issue. Or put another way, do I infer correctly that your claim for a 3-family is based entirely on your Chapter 40A, Section 7 limitations argument as contained in your July 19, 2006 Memorandum to the Salem Zoning Board of Appeals? As you know, our system of litigation is not based on surprise or the withholding of relevant and/or material information,but on the free exchange of such information, so I am herewith formally requesting that you reply to my foregoing questions by the end of this week, including whether or not you will make your client available for a short deposition. Incidentally, while my research is not yet completed, I was astonished to learn so far that the clear majority of cases under Section 7 have rejected an increase in density(not otherwise permitted)based on a Section 7 limitations argument, and it seems clear from a reading of the far greater number of cases that you did not mention that the appellate courts frown on such arguments. Indeed,of the 2 cases you cited in support of your limitations argument,namely Hall v. Provincetown Zoning Board of Appeals, 56 Mass. App. Ct. 1103 (2002) and Moreis v. Oak Bluffs Board of Appeals, 62 Mass. App. Ct. 53 (2004),Hall is one case where it was upheld,but on a highly unique and distinguishable set of facts, and the other case you cited, namely,Moreis, does not support your contention at all, since the Appeals Court rejected the land owners contention that he was entitled to certain nonconforming uses based on building permits that had been issued more than 6 years prior to the neighbors' challenge to said uses. I look forward to your timely reply. Very truly yours, John H. Carr,Jr. Enc. Cc. Elizabeth Rennard,Esq., City Solicitor Nina Cohen, Chairperson, Salem Zoning Board Thomas St. Pierre, Salem Building Inspector Ms. Linda Moustakis _. . _ � , lova ULUVSKY 0 ULOVSKY Q0011001 GLOVSKY & GLOVSKY ATTORNEYS AT LA W Philip C.Wysor Rw rfelclo sk 2.00M DInct D12197&720-3312 FAX TRANSMITTAL COVER SHEET PLEASE DELIVER THE FOLLOWING PAGE(S)AS SOON AS POSSIBLE TO: Name: John H. Carr,Jr. Esquire Firm: Fax Number: (978) 825-0068 From: Philip C. Wysor, Esquire Direct Dial: (978) 720-3112 Date: August 4, 2006 Total Number of Pages (Including Cover Sheet): I IF YOU DO NOT RECEIVE ALL THE PAGES OR IF YOU HAVE TROUBLE, PLEASE CALL US AS SOON AS POSSIBLE. (978) 922-5000 SHOULD YOU WISH TO SEND US A FAX COPY, WE HAVE AN AUTOMATIC FAX COPY NUMBER: (978) 921-7809 MESSAGE TO ACCOMPANY TRANSMITTAL: RE: 4 Bentley Street, Salem Mr. Carr. In response to your recent inq be adviVatIot be making Mr. Osgood available for a deposition. p . Wysor THE INFORMATION CONTAINED RV THIS FACSIMILE MAY BE PRIVILEGED OR CONFIDENTIAL INFORMATION AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR THE EMPLOYEE OR AGENT DIRESPONSIBLE DISSEMINATION. TO DELIVER IT TO THE INTENDED RECIPIENT. YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION,DISTRIBUTION OR COPYMG OF THIS COMMUNICATION 19 STRICTL Y PROHIBITED. Eight Washington Street Beverly,MA 01915 Tel:978.922.5000 Fax: 978.921,7809 �xv►�b�t � U John H. Carr, Jr., Esq. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 August 7, 2006 By Mail &By Facsimile: 978-921-7809 Philip C. Wysor, Esq. Glovsky&Glovsky 8 Washington Street Beverly,MA 01935 Re: 4 Bentley Street Dear Attorney Wysor: I was out of the office last Friday and so did not receive your 9:46 am. fax of Friday, August 4,2006,until I returned to the office this morning. You indicated that your fax was"in response to [my] recent inquiry,"which I took to mean my fax to you of August 2, 2006. While I am not surprised that you are unwilling to make Mr. Osgood available for a deposition, and thereby permit an unfettered examination of the facts,your fax was not a response to the primary thrust of my August 2, 2006 inquiry at all, since I had posed the following particular(and very specific)questions to you, namely: 1. Do you concede that 4 Bentley Street was in fact operated as a 2-family apartment dwelling as of the enactment of the current Salem Zoning Ordinance in 1965? 2. If your position is that 4 Bentley Street was then being operated as a 3-family, what evidence do you have or intend to submit in support of same, especially considering that your client has the burden of proof on this issue? 3. If you have no such evidence,do I infer correctly that your claim that 4 Bentley Street is now a legal 3-family dwelling rests entirely on your chapter 40A, Section 7 limitations argument as contained in your. July 19,2006 Memorandum to the Salem Zoning Board of Appeals? I note that you ducked answering any of those very specific questions in your August 4, 2006 fax,and thus,I can only conclude that(a)you have no evidence in opposition to the 10 sworn affidavits I have already submitted to the Salem ZBA, all of which agree that 4 Bentley Street was in fact operated as a 2-family apartment building as of the enactment of the current Salem Zoning Ordinance in 1965, and(b)that(notwithstanding same)your claim that 4 Bentley Street is nevertheless a legal 3-family dwelling is entirely based on your Section 7 limitations argument. We have a professional duty as attorneys to narrow factual and legal issues so that the Salem ZBA can make as informed and competent a decision as possible, so I am herewith asking you again to explicitly respond and(in writing)to my foregoing questions. Your continued silence on these points can only cause the Board to conclude that 4 Bentley Street was not legally grandfathered as a 3-family dwelling in 1965; that an illegal 3`d apartment was created sometime thereafter; and that, in effect,your technical Section 7 limitations argument is nothing more than an attempt to legally ratify that illegal act. I urge you to respond to the foregoing questions by tomorrow at the latest,as I am anxious to incorporate your answers,whatever they are, into the Memorandum of Law I am about to draft. Thank you in advance to your anticipated cooperation in this matter. Very truly yours, John H. Carr,Jr. Cc. Elizabeth Rennard,Esq., City Solicitor Nina Cohen, Chairperson, Salem Zoning Board Thomas St. Pierre, Salem Building Inspector Ms. Linda Moustakis Mr. Matthew Kelleher Ms. Victoria Regan 08/be/2006 15:34 FAX 976 921 7,8008 aLOVSKY 0 9LOVSKY • �1C1 t1�1� � S e GLovsKy & GLOVSKY ATTORNEYS AT LAW Philip C.Wysar pwyaur 00veltrvvxLa0M Dlraet Dial(97B)720-3112 August 9,2006 SENT VIA MAIL AND FACSIMILE (978) 825-0068 John H. Carr, Jr., Esq. 9 North Street Salem,MA 01970 Re. 413entley Street, Salem,Massachusetts Dear Attorney Carr: While I have no obligation to respond to your questions, and you have no authority to compel a deposition of my client, your letter of August 7, 2006,requires a response. If you are prepared to concede that the property at 4 Bentley Street constitutes a valid three-family dwelling, I am prepared to explore a new design for the stairway. I told you this after the last public hearing, and we are still willing to do so. However, if you insist on contesting the use of the property as a three-family structure, there is no point in further consideration of a new design for the staircase. V yours, l _ 4 Phi 'p C. ysor PCW:Ikw cc: Elizabeth Itennard,Esq.,City Solicitor Nina Cohen, Chairperson, Salem Zoning Board Thomas St.Pierre, Salem Building Inspector Nicholas Osgood Eight Washington Street Beverly, MA 01915 Tal: 978.922.5000 Fax: 978.921.7809 �K(rli�tk �J Co John H. Carr, Jr.,Esq. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 August 8,2006 By Mail & By Facsimile: 978-921-7809 Philip C. Wysor,Esq. Glovsky&Glovsky 8 Washington Street Beverly, MA 01935 Re: 4 Bentley Street Dear Attorney Wysor: I have just returned from meetings outside the office to find your 3:31 a.m. fax of today's date. I realize that(at least at this stage)you have no obligation, at least as a technical matter, to respond to my three simple, straightforward,and precise questions, and that(again, at least at this stage)I have no present authority to compel a deposition of Mr. Osgood without jumping through a number of"hoops"that are too impractical to commence, especially within the limited time constraints I have before next Tuesday's deadline. But I would submit that in a larger sense,you do have a professional duty to narrow issues and thereby expedite a more orderly and informed decision by the Salem ZBA. You say that my letter of August 7,2006"require a response." Well then,why not respond? By response, I am specifically referring to your answering the three specific questions I posed in my August 7, 2006 letter,which constituted the entire body of my letter. A response is not raising a new question of your own,namely whether I will concede that 4 Bentley Street is a legal 3-family dwelling. I can only conclude from your latest evasion and unwillingness to answer my three simple and straightforward questions that 4 Bentley Street was not in fact a legal 3-fami� dwelling as of the enactment of the current Salem Zoning Ordinance in 1965,that the 3` apartment was illegally created sometime after 1967, and that you are relying entirely on a Section 7 limitations argument to, in effect,validate what was an illegal unit to begin with. In this regard, especially in light of the 10 Affidavits I have submitted to the Salem ZBA,I am particularly troubled by Leo Trembly's December 21, 1993 "determination" (without any explanation whatsoever)on the field card,which(incidentally)is not the building permit,that 4 Bentley Street is"a lawful three(3) family dwelling as per the Zoning Enforcement Officer,"especially in light of his two letters of only a month before,ie. dated November 12, 1993 and November 29, 1993 respectively,wherein he declared that said property was a 2-family dwelling. And while(at least at this stage)I cannot practically compel a.deposition of your client or Mr. Trembly,that will definitely change in the litigation that will inevitably follow in the hopefully unlikely event I lose before the Salem ZBA,or(initially)Tom St. Pierre. Finally while I am still awaiting your response to my August 7, 2006 letter that you say I deserve, let me respond to your fax: No,I am not willing to concede that 4 Bentley Street is a legal 3-family dwelling,and you will see why not when I file my brief next week. I invite you to take a look at the totality of the cases under Section 7 of Chapter 40A, and other sections thereof, including those relevant cases wherein your limitations argument was not upheld on appeal. Now that I have unequivocally responded to the question you posed in your fax this afternoon, even though I was not obligated to do so, I ask(for now the third or fourth time in as many letters)that you simply answer my 3 questions. I hope I am not being overly optimistic when I thank you in advance for your anticipated (and belated)cooperation in this matter. Very truly yours, John H. Carr,Jr. Cc. Elizabeth Rennard,Esq., City Solicitor Nina Cohen, Chairperson, Salem Zoning Board Thomas St. Pierre, Salem Building Inspector Ms. Linda Moustakis Mr. Matthew Kelleher Ms.Victoria Regan �tlf ofttltm. �Iasatllust#ts Public 111V�V01V agwC MM ON 5911-1454529 fAL ls9 Leo E. Tremblay Director of public Property Inspector of Building Zoning Enforcement Officer November 12, 1993 Four Bentley St. Realty Trust Anne Cardy 4 commercial St. Marblehead, MA 01945 RE: 4 Bentley St. , Salem Dear Ms. Cardy: This office has learned you are trying to rent a third floorapa�t at the above reference address. The records in this depattmen property to be a two family dwelling in a Residential Two Family District (R_�) . To alloy use as more than two family vould require a varismas from the city of_We4. zxaaL ))w4 of Appt l f if you need any further information do not hesitate to contact this department. Sincerely, Leo E. Tram blay Zoning Enforcement fficer LET:bms cc: Councillor Novak, Ward 1 Wtv Of oultm. A8058c4undto • swab" 8epartmeat ONr.Nm arm SN-7454593 WRL 30 Leo E. Tremblay Mrww of Public Property Inspector of SWMing Zoning Enforcement Officer November 29, 1993 Four Bentley St. Rlty. Trust Anne Cardy 4 Commercial Street Marblehead, MA 01945 RE: 4 Bentley St. , Sales Dear Ms. Cardy: We have been informed that you have rented a third floor apartment a the above referenced property. You were told by this department in a letter dated November 12, 1993 that you could not have a third unit there that this property, according to our records, is only s two family bwll: and it would require Board of Appeal action to Increase the use. You ha' evidently chose to ignore my letter. You are hereby orderedto cease and desist all illegal use of the property and to contact this office upon receipt of this notice to advis' use of your intentions. Failure to comply will result in the spprOPriab legal action being taken. Sincerely, Lao E. Tremblay Zoning; Enforcement Officer LET:bas Certified Mail OP 921 991 557 /4bntly/ LOCATIOM 1tl�FIf F9Mn Nv OWNER 4 U,,.s&y 8/13/84:,. #395 Paul Stunts ooST DIMENSIONS Na OF STOW No.OFFAMILIES WARD STRUCTURE MATERIAL /�{�Y+ 2 Dwelling BUILDER Strip and reroof,remove danmera where necessary,replace with newer windows. Determined to a 1 three (3) family dwelling as per the Zoning Enforcement Officer: DATE LEO E. TR Y 47. Z/27/97 U97_97 Renovate 3rd fl. as per plana: new bath 6 replace Is. fee (Owner: Nicholas Osgood) . Certificate of occupancy issued 5/15/97 by M.M.M. for permit # 97-97 MEMORANDUM To: Thomas St. Pierre,Building Inspector and Zoning Enforcement Officer Members of the Salem Zoning Board of Appeals From: John H. Carr,Jr.,Esq.,Attorney for Linda J. Moustakis Re: 4 Bentley Street Zoning Controversy Date: August 15,2006 1. STATEMENT OF CASE: Since it is uncontested that 4 Bentley Street is not a legal 3-family dwelling pursuant to a variance for the third unit,the only other way it could be a legal 3-family dwelling is if (a)the third unit was in existence as of the creation of the current Salem Zoning Ordinance in 1965, and continuously used since then, and therefore, grandfathered as a prior non-conforming use as a matter of law, or(b)pursuant to Mr. Osgood's argument that any action seeking to challenge said otherwise illegal third apartment is barred by the 6-year statue of limitations provided in Section 7 of Chapter 40A. 2. OUESTIONS PRESENTED: a. Is the 3rd apartment at 4 Bentley Street a legally-grandfathered, non-conforming use? b. Notwithstanding that 4 Bentley Street was not a legally- grandfathered, non-conforming use as of the creation of the current Salem Zoning Ordinance in 1965, and thus,was illegal as of its creation, does the limitations language contained in Section 7 of Chapter 40A prevent the City and/or Ms. Moustakis from challenging what is otherwise an illegal use at the present time? C. Is Mr. Osgood entitled to a variance for the already-built, free- standing, 3-story exterior staircase at the rear of the rear ell of 4 Bentley Street, essentially located on the shared side lot line with 2 Bentley Street? d. If the legal issues are difficult to resolve, should the Building Inspector and/or the Zoning Board of Appeals err on the side of enforcing the Salem Zoning Ordinance, or should the Building Inspector and/or the Salem ZBA err on the side of permitting what is otherwise clearly an illegal use? I 3. ARGUMENT: a. Is the 3rd apartment at 4 Bentley Street a legally-grandfathered,non- conforming use? Answer: No. It is clear from the overwhelming preponderance of the evidence that the third apartment at 4 Bentley Street is not a legally-grandfathered,non-conforming use for the following reasons: i. It is well-settled Massachusetts Law that the burden of proof is on those asserting the validity of an alleged non- conforming use or structure, and not on those contesting same. ii. Ms. Moustakis has submitted 6 Affidavits from people who have first-hand knowledge and experience with 4 Bentley Street, including from several who were tenants at said property during the period in question, all of which agree that 4 Bentley Street was in fact operated as a 2-family dwelling as of the enactment of the current Salem Zoning Ordinance in 1965. Said Affidavits are attached hereto as Exhibits A(1)-(6) inclusive. iii. Said Affidavits agree with the information for 4 Bentley Street contained in the annual Voting Lists and City Directories separately and independently published for calendar year 1965, and for several years both before and after 1965. iv. The annual Voting Lists for the City of Salem indicate the following residents of 4 Bentley Street during the following years: 1960 1964 Richard Audrey Douglas & Susan Call Florence Doran William&Faye Wilson 1961 1965 Richard Audrey Douglas& Susan Call Florence Doran Doris&Ronald Jalbert 1962 1966. Richard Audrey Helen Borowski F 2 Vacant Edward& Anna Lassiter 1963 Edward&Anna Lassiter William&Faye Wilson V. The separately-published City Directory for the City of Salem indicates the following residents of 4 Bentley Street during the following years: 1960 1964 Florence Doran Douglas Call [No Name] William Wilson 1961 1965 Florence Doran Douglas Call [No Name] Ronald Jalbert 1962 1966 Directory Missing Helen Borowski Edward Lassiter 1963 William Wilson [No Name] vi. Of the two separate publications,the annual Salem Voting Lists are more reliable,in that a person's ability to vote is based on said information. vii. Notwithstanding that he has been aware of Ms. Moustakis' allegations at least since Mr. Carr's initial April 19, 2006 letter to the Salem ZBA, it is now approximately 4 months later and Mr. Osgood has still not submitted any countervailing evidence that the third floor apartment at 4 Bentley Street was in fact a prior non-conforming use as of the creation of the current Salem Zoning Ordinance in 1965. viii. Not only has he failed to affirmatively submit any evidence in behalf of his client,Mr. Wysor has also consistently refused to voluntarily submit Mr. Osgood to a short deposition by Mr. Carr, or have Mr. Osgood answer the following 3 specific and straightforward questions posed to Mr. Osgood in three separate letters faxed and mailed to 3 Mr. Wysor on August 2, 2006,August 7,2006,and August 8, 2006 respectively: aa. Do you concede that 4 Bentley Street was in fact operated as a 2-family apartment dwelling as of the enactment of the current Salem Zoning Ordinance in 1965? bb. If your position is that 4 Bentley Street was then being operated as a 3-family dwelling, what evidence do you have or intend to submit in support of same,especially considering that your client has the burden of proof on this issue? CC. If you have no such evidence,do I infer correctly that your claim that 4 Bentley Street is now a legal 3-family dwelling rests entirely on your Chapter 40A, Section 7 limitations argument as contained in your July 19, 2006 Memorandum to the Salem Zoning Board of Appeals? Attached hereto as Exhibits B(1)-(6) inclusive are copies of Mr. Carr's July 26, 2006 and August 2, 2006 letters to Mr. Wysor, Mr. Wysor's incomplete and evasive reply of August 4,2006,Mr. Carr's August 7,2006 follow-up letter to Mr. Wysor,Mr. Wysor's August 8,2006 letter to Mr. Carr,and Mr. Carr's reply of the same date. ix. Ms. Moustakis respectfully submits that the reason that Mr. Osgood has refused to voluntarily submit himself to a short deposition,has failed to answer the foregoing 3 specific and straightforward questions, and has failed to submit any affirmative evidence whatsoever on such issue, and thus, has failed to meet his burden of proof, is because no such evidence exists. X. Even if Ms. Moustakis were determined to have the burden of proof on this issue, she has clearly proved that 4 Bentley Street was a 2-family dwelling as of the creation of the current Salem Zoning Ordinance in 1965. b. Notwithstanding that 4 Bentley Street was not a legally- grandfathered, non-conforming use as of the creation of the current Salem Zoning Ordinance in 1965,and thus,was illegal as of its creation,does the limitations language contained in Section 7 of 4 Chapter 40A prevent the City and/or the neighbors from challenging what is otherwise an illegal use at the present time? Answer: No. Mr. Osgood cites only two cases in support of his Section 7 limitations argument: Moreis vs. Board of Appeals of Oakbluffs, 62 Mass. App. Ct. 53 (2004)and Hall vs. Zoning Board of Appeals ofProvincetown, 56 Mass. App. Ct. 1103 (2002),Unreported. Of the two,Moreis, instead of supporting Mr. Osgood's argument, supports Ms. Moustakis' argument,as hereinafter discussed, and Hall is a so-call re-script opinion, meaning that there is no discussions whatsoever of the principles upon which the case was decided. The facts of Moreis, as found by the Appeals Court, are as follows: J. Raymond Moreis, a residential owner,requested the local building inspector to issue a cease and desist order to a neighboring property owner, Frank M. Fenner,whose tenant was using Fenner's land, located in a residential district, for parking, maintaining and cleaning large trucks of several types; collecting and processing refuse, cans,and bottles; and other commercial uses. The inspector refused the enforcement request and Moreis appealed to the Oak Bluffs Zoning Board of Appeals ("ZBA"). After conducting a hearing,the ZBA upheld the inspector's decision, and Moreis appealed to the Superior Court. Fenner's chief defense was that his use of the site was protected by the 6-year statue of limitations provided in Section 7 of Chapter 40A relative to enforcement actions. Moreis prevailed in the Superior Court and the trial judge ordered the ZBA to take all actions necessary to enforce the cessation of all commercial and non-residential use of the site. Fenner thereupon appealed the Superior Court decision to the Appeals Court, arguing that(1)the trial judge erred in determining that Fenner's use of his property was not protected under Section 7 of Chapter 40A by virtue of various building permits that bad been issued to him and his predecessor in title; (2)the trial judge impermissibly substituted his judgment for that of the ZBA; and(3)the judge's findings of fact were clearly erroneous. Fenner's property consisted of two adjoining lots. One was a lot with a building (building lot) and the other was a paved lot,with perimeter fencing but no building(fence lot). The building lot,which had been owned by the town and used as a school gymnasium,was sold to one Everett A. Rodgers in 1958. Rogers then began using the building lot and building for his relocated trucking business, although the land was then (and at all material times since)zoned for residential use only,which residential zone did not permit trucking or any commercial uses. Rogers' business activities involved delivering food and beverages to local restaurants and stores,rubbish collection, and storage and maintenance of several kinds of trucks. 5 In 1965 Roger's obtained a building permit relative to the building lot to build an addition for the purpose of"storage& garage"at a cost of$1,500.00. The building permit application did not indicate whether the use of the structure would be residential or commercial,but Roger's answered"yes"to the application's question,"Will the building conform to the requirements of the law?" In 1975,Rogers obtained a building permit to build a"Shelter for platform"at an estimated cost of$1,100.00. The"remarks"section of the application form recited, "This is just a canopy to cover existing platform." As with the 1965 building permit application, Roger's answered"yes"to the application's question,"Will the building conform to the requirements of the law?" In 1979 Rogers purchased the adjoining lot(the fenced lot),which he then,without any permit or other approvals,paved and began using for truck storage. In 1988 Rogers became ill and began negotiating the sale of both lots to Fenner,who was in the refuse and reprocessing business. In contemplation of the purchase, Fenner had discussions and correspondence with the then building inspector for the town of Oak Bluffs,Alishin Haigazian, concerning the historic uses of the property and Fenner's intention to continue those uses and to relocate his refuse business to the site. Rogers died in 1989. That same year, Rogers' nephew, Richard Mavro became building inspector. Fenner completed the purchase of the site from the Roger's estate, and subsequently,on July 6, 1989,Mavro issued a building permit to Fenner which recited, in relevant part, "permit to build or alter...a commercial building...to be occuuied for commercial use...provided that [the owner] shall in every respect conform to the terms of the application on file in this office...[and] subject to all applicable codes and ordinances." Emphasis added. In May of 1989, Fenner was also issued a building permit for the fenced lot to"build or alter a fence...for storage and security...subject to all applicable codes and ordinances." The application for the fence permit described"type of improvement"as"addition,"and "proposed use"as"non-residential...storage of trucks and equipment" Emphasis added. In 1989 Fenner moved his refuse business and his company's entire maintenance operation(including recycling trucks, large commercial rubbish packing trucks,and rubbish collection vehicles)to the site. The trial judge found that the commercial uses of the site by Rogers and Fenner(including Fenner's subsequent tenant who was involved in the same type of business as Fenner was)had never conformed to the permitted residential zoning nor had any form of zoning relief ever been sought. Fenner's primary defense on appeal was that his non-conforming uses were grandfathered by virtue of the 6-year enforcement limitation contained in Section 7 of Chapter 40A based on the 1965, 1975,and two 1989 building permits, and the fact that Moreis did not file his Superior Court action until May of 1997, ie. 32 years after the 6 1965 building permit,22 years after the 1975 building permit, and 8 years after the two 1989 building permits. In upholding the Superior Court decision,the Appeals Court held that Fenner had the burden of proving the nature of the particular uses authorized by the earlier building permits;that he also had the burden of proving that the uses for which he sought protection were allowed by the permits; and that he failed to meet said burdens. Notwithstanding the references to"commercial uses"in several of the building permits, the Appeals Court emphasized that there was no basis"for concluding that [Fenner's] commercial activities,or Rogers' for that matter, were allowed by any permit, or undertaken consequent to the issuance of any permit,"adding`Because Fenner—'s use of the property was never allowed by a permit, there is no limitations period for actions to redress that violation of the zoning by-law." Emphasis added. There are several remarkable similarities between Moreis and the issues involving 4 Bentley Street. In both cases the owner's sole defense to a present enforcement action was/is that it is barred by the 6-year statue of limitations provided in Section 7 of Chapter 40A. In both the non-conforming use did not commence after the issuance of the building permit,but had existed for many years before. In both the owner was/is trying "an end run"by attempting to validate(based on Section 7)an illegal use that he was not otherwise entitled to. In both there were references in the building permit applications and/or the building permits to the already-existing illegal uses. In both cases,the building permit application and the building permit contained a form question–in Salem's case this was"Will building conform to law?"–to which Mr. Osgood(like Fenner)answered"Yes." And in both,there were potentially troubling inferences concerning the actions of the then building inspector. In Moreis the building inspector who issued the two 1989 building permits to Fenner was the nephew of Rogers whose estate sold Fenner the two lots the same year. In our case,there is the November 12, 1993 letter from the then Building Inspector/Zoning Enforcement Officer, Leo E. Tremblay,to the then owner of 4 Bentley Street,a copy of which is attached hereto as Exhibit C,which recited the following: This office has learned you are hying to rent a third floor apartment at the above reference address. The records in this department show this property to be a two family dwelling in a Residential Two Family District(R-2). To allow use as more than two family would require a variance from the City of Salem Zoning Board of Appeals. This letter was followed approximately two weeks later by Mr. Tremblay's November 29, 1993 letter to the then owner of 4 Bentley Sheet,a copy of which is attached hereto as Exhibit D,which recited the following: 7 We have been informed that you have rented a third floor apartment in the above referenced property. You were told by this department in a letter dated November 12, 1993 that you could not have a third unit there,that this property, according to our records, is only a two family dwelling, and it would require Board of Appeal action to increase the use. You have evidently chose to ignore my letter. You are hereby ordered to cease and desist all illegal use of the property and to contact this office upon receipt of this notice to advise use of you intentions. Failure to comply will result in the appropriate legal action being taken. Yet, on December 21, 1993,less than one month after his November 29, 1993 letter,Mr. Tremblay signed a statement on the field card for 4 Bentley Street that read"Determined to be a lawful three(3) family dwelling as per the Zoning Enforcement Officer:"opposite his signature. Said determination was unsupported by any reasoning or reasons for the change whatsoever. At apparently the same time the box in the field card listing"No. Of Families"was obviously altered by hand from 12"to "3." A copy of said field card is attached hereto as Exhibit E. Again,Moreis is one of the only two cases cited by attorney Wysor in his July 19,2006 Memorandum to the Salem Board of Appeals,the other being a re-script decision entitled Hall v. Zoning Board of Appeals of Provincetown, 56 Mass. App. Ct. 1103 (2002), Unreported, in which there was absolutely no discussion whatsoever of the principles upon which the one-line decision was based. Moreis is an especially strong case because(given the obvious nature of the non- conforming trucking and commercial uses)the Appeals Court could have found that Moreis knew or should have known of said illegal nonconforming uses for purposes of commencing the 6-year statute of limitations provided in Section 7 of Chapter 40A. Clearly the Court was bending over backwards to reject Fenner's Section 7 argument,and given the extent of same, it seems obvious that the Court generally frowns on said arguments. It should also be kept in mind that in Moreis the enforcement action occurred 32 years after the oldest(ie. 1965)building permit,whereas in our case the building permit was issued only 9 years from the requested enforcement action. Lord v. Zoning Board of Appeals of Somerset, 30 Mass. App. Ct. 226 (199 1)was another decision where the Massachusetts Appeals Court rejected an owner's contention that a zoning enforcement action was barred by the 6-year statute of limitation provided in Section 7 of Chapter 40A. In that case an owner of a single-family property had obtained 8 a building permit in 1966 authorizing an addition to the first floor consisting of two bedrooms and a living room. At the same time the owner converted the original bedroom and living room on the first floor to a kitchen and bathroom. Between 1967 and 1976 the owner did additional work without benefit of a building permit, adding three bedrooms and a living room in the basement(which already had a kitchen and bathroom). In March of 1972 the same owner obtained a building permit to construct a 2-car garage, which he used(along with the 1966 building permit)as the basis for his contention that the 1998 enforcement action was barred by the 6-year statute of limitations provided in Section 7 of Chapter 40A. Both the trial Court and the Appeals Court rejected said argument. In Cape Resort Hotels, Inc. v. Alcohols Lic. Bd. of Falmouth, 385 Mass. 205 (1982) involved a hotel which had operated as a lawful,preexisting nonconforming use in a residential district. At issue was the change in use of particular rooms in the hotel: a reading area had become a disco;part of an enclosed porch had become a game room; and a"frolic room"had become a"show room." After rejecting the owner's argument that the changes continued to enjoy the protection of Chapter 40A, Section 6, the Supreme Judicial Court rejected the landowner's claim that a single permit to enclose a porch provided Section 7 protection for"the entire present use of the hotel's ground floor,"and instead examined the hotel's present uses,and any prior building permits, on a room-by-room basis. Of the multiple uses for which the landowner sought protection,the Court concluded that only the show lounge was protected by Section 7,because the documents accompanying an earlier permit application for an addition which subsequently became the show lounge"indicated very clearly that the space would include a bar, cocktail lounge,and entertainment facilities—the specific uses in effect at the time of trial. See also Feuer v. Board of Appeals of Stoneham, 57 Mass. App. Ct. 1114(2003)where a nonconforming use of the property as a banquet facility and other use violations were not protected by the 6-year statute of limitations from an enforcement action to redress violations of the zoning by-law that were in force as of the issuance of the building permit more than six years before. It seems clear that Section 7 usually applies where there is a prior permitted use,a building permit which is subsequently obtained which clearly references a change of use, reasonable notice of said permit or change of use,a change of use in reliance on said permit(both in terms of construction and subsequent use)on the part of the owner,and a challenge to said use filed more than 6 years after the issuance of the building permit. In Garabedian v. Westland, 59 Mass. App. Ct. 427(2003),the Appeals Court held that a Superior Court judge had correctly determined that the Zoning Board of Appeals of Southborough had acted within its discretion in affirming the building inspector's denial of a permit for a second airplane hanger to be constructed at the owner's residence and 9 for expansion of the original hanger and airstrip,because such use of the land in an R-1 zone was not a customary and incidental assessory use under the town's zoning by-laws. The Appeals Court also held that the Superior Court trial judge had properly ruled that the building-permit-related 6-year limitations period in Section 7 of Chapter 40A barred the neighbors' enforcement action(challenging said use more than 12 years after the fact) because they knew or should have known about the use of the original hanger from the inception of the process. See also Lapidus v. Board of Appeal of Boston, 51 Mass. App. Ct. 723 (2001). Although not technically a Section 7 case,the Appeals Court found that the doctrine of laches barred an enforcement action sought by a neighboring residential owner against a restaurant more than 23 years after the City of Boston issued a building permit converting a conforming residential use to a restaurant with entertainment. At page 727,the Appeals Court stated that"During that time fie. the 23 years since the building permit had been issued],the conditions here complained of should have been obvious to the plaintiff, and no action by the defendants,or anyone else,barred or prevented the plaintiff from taking action at a far earlier date." In our case there is no similar reasonable imputation of knowledge for purposes of commencing the 6-year statute of limitation. Ms. Moustakis has filed an affidavit in which she states under oath that Mr. Osgood did not display any building permit for the exterior staircase at 4 Bentley Street"so that it is visible from the street,"as is required, nor did his predecessor in title display the February 1997 building permit so that it was clearly visible from the street. And unlike the 3-story staircase, which gave her every opportunity to realize that something was amiss,there was no such constructive notice concerning the February 1997 building permit. Not only was she unaware of the February 1997 building permit, she was not even aware of the interior"renovations to the third floor apartment." Had she been aware of Mr. Osgood's February 1997 building permit, she would have immediately contested same,just as she did immediately following construction of the 3-story exterior staircase,which(according to the application for the building permit)consisted simply of removing and replacing two non- bearing interior walls, and renovating the P floor bathroom. Surely that is distinguishable from the constructive notice of construction of an airplane hanger in an R-1 zone in Garabedian or replacing a residential use with a restaurant with entertainment in an R-1 zone in Lapidus. C. Is Mr. Osgood entitled to a variance for the already-built,free- standing,3-story exterior staircase essentially located on the side lot line at the rear of 4 Bentley Street? Answer: No. In order to be entitled to a variance for the already built, free-standing, 3-story exterior staircase, Mr. Osgood would have to prove each of the following three elements as a matter of law: 10 i. That he has suffered a legally-recognized hardship; ii. That there are special conditions or circumstances affecting the land,building, or structure; and iii. That granting a variance for said staircase will not cause substantial detriment to the public good and will not nullify or substantially derogate from the intent or purposes of the Salem Zoning Ordinance. In fact,as hereinafter discussed, Mr. Osgood cannot prove even one of the three foregoing elements, let alone all three. Mr. Osgood has clearly not suffered a legally-recognized hardship pursuant to Massachusetts law. Essentially the hardship Mr. Osgood complains of is a mistaken opinion of an assistant Salem building inspector that Mr. Osgood could build the free-standing, 3-story, exterior staircase within the side lot setbacks provided in the Salem Zoning Ordinance without a variance, and Mr. Osgood's reliance on same in constructing said staircase. Yet it is well-settled Massachusetts law that a municipality cannot be bound by the mistakes of its municipal employees, including(in particular)building inspectors and even city solicitors and/or town counsel. See Cullen v. Building Inspector of North Attleborough, 353 Mass. 671 (1968)and Malden v. Werlin Realty, Inc., 349 Mass. 62 623 (1965). Ms. Moustakis' substantive rights to have the Salem Zoning Ordinance enforced for the protection of her property are not forfeited by the mistakes of the assistant building inspector. See also Brady v. Board of Appeals of Westport, 348 Mass. 515 (1965),where the Supreme Judicial Court held that the issuance of a building permit was inconsequential in a proceeding for enforcement of the local zoning ordinance. And consider too that Mr. Osgood's claim hardship pales by comparison with the owner's"hardship"in Moreis, which involved the substantial cost of purchasing the property and relocating his entire business to the site, which claim the Appeals Court rejected. Mr. Osgood is presumed to know the law. It was he who constructed the 3-story exterior staircase essentially on the shared side lot line with 2 Bentley Street in violation of the Salem Zoning Ordinance. As a result,it was he who created his own hardship and it is axiomatic under Massachusetts zoning law that hardship cannot be self-created. It is also important to keep in mind that Mr. Osgood is not the only person who can claim hardship because of the mistakes of the Salem Building Department. Ms. Moustakis has been repeatedly harmed by said mistakes,and unlike Mr. Osgood,can be hardily accused of having anything to do with same, first by the Building Department's failure to shut 11 down the illegal 3-family use after 1966, second by Leo Tremblay's erroneous December 21, 1993 "determination" on the field card for 4 Bentley Street that the property is a legal 3-family dwelling,third by the Department's belief that the need for a second means of egress trumped the setback requirements, and lastly,by the permission granted to Mr. Osgood to construct the exterior 3-staircase essentially on the side property line without having to obtain a variance. In the process Ms. Moustakis has had to retain an attorney, at considerable expense,which should not have been necessary had the Building Department properly done its job at each stage. Similarly there are no special conditions or circumstances affecting the land,building, or structure within the meaning of Chapter 40A. Mr. Osgood's claims of such"special conditions"are the direct result of his having boxed himself in by selling portions of the yard to the owners of the two condominiums he created. Here again, he is responsible for his own predicament,which is clearly not a basis for a hardship. And finally, should anyone doubt that granting a variance for said staircase will not cause substantial detriment to the public good and/or will not nullify or substantially derogate from the intent or purposes of the Salem Zoning Ordinance, he or she need only look at said structure. d. If the legal issues are difficult to resolve, should the Building Inspector and/or the Zoning Board of Appeals err on the side of enforcing the Salem Zoning Ordinance,or should the Building Inspector and/or the ZBA err on the side of permitting what is otherwise clearly an illegal use? Answer: Clearly the former. It should not be necessary to have to argue this obvious point. It is important to keep in mind that it is likely there will be litigation whether Mr. Osgood loses or Ms. Moustakis loses. The Building Inspector and/or the Salem Zoning Board of Appeals should not attempt to perform the role of the courts but instead should err on the side of enforcing the Salem Zoning Ordinance,particularly if it finds that the within issues,which are primarily legal in nature, are difficult to resolve. Respectfully Submitted, Linda J. Mou�s, Y Y, August 15, 2006 1 John H. C , J Es . 9 North S et Salem, MA 7 978) 825-0060 B 75 12 AFFIDAVIT OF LINDA J. MOUSTAHIS CONCERNING 4 BENTLEY STREET I, Linda J. Moustakis,being duly swom,hereby swear that the following is true: 1. On September 19, 1995 I inherited a 1/5th interest,along with 4 other relatives, in 2 Bentley Street, Salem,Massachusetts. 2. On September 18, 1997 I acquired sole title to said property. 3. Between August 19, 1995 and September 18, 1997 I visited 2 Bentley Street approximately once a week at a minimum. 4. Even though I recently learned that the February 1997 Building Permit for 4 Bentley Street required Mr. Osgood to "POST THIS CARD SO IT IS VISIBLE FROM STREET,"he never posted the Building Permit so that it was visible from the street. In fact, as far as I was aware, he never posted the Building Permit in any location. 5. Similarly,Mr. Osgood never visibly displayed any 2005 Building Permit that may have been issued in connection with the 3-story, free-standing, exterior staircase. 6. But unlike construction of the staircase in 2005,which was obvious, I was never aware of any of the interior renovations to the third floor apartment at 4 Bentley Street that were then going on in 1997. 7. The first I became aware of the February 1997 building permit was after I retained Mr. Carr to oppose the exterior staircase in 2006. 8. Had I become aware of the February 1997 building permit at that time,I would have immediately opposed the illegal third apartment just as I had opposed the 3-story,exterior staircase immediately following its construction. Signed under oath this 15th day of August 2006. Linda J.Kloustakis John H. Carr, Jr., Esq. 9 North Street Salem,MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 August 15, 2006 By Hand Thomas St. Pierre, Building Inspector City of Salem 120 Washington Street, 3`d Floor Salem, MA 01970 RE: 4 Bentley Street, Salem,MA Dear Mr. St. Pierre: Enclosed please find my Memorandum of law in behalf of Ms. Linda Moustakis in opposition to attorney Wysor's July 19, 2006 Memorandum to the Salem Zoning Board of Appeals in behalf of Nicholas Osgood concerning the above-described property. Things are not always simple as they may seem at first, as indicated by the multiple cases I have cited concerning Section 7 of Chapter 40A, and I urge you to review the enclosed carefully with the City Solicitor. I would also urge you to take as much time as you need to do this. After all, as the Massachusetts Appeals Court stated in Vokes v. Avery W. Lowell, Inc., 18 Mass. App. Ct. 471 (1984)the 14-day period within which to respond in writing to a complainant's enforcement request is"directory and not mandatory." I am also enclosing an Affidavit of Linda J. Moustakis, which is in addition to the 6 Affidavits I filed with your office on July 18, 2006. You should also consider the oral testimony at the July 19,2006 ZBA hearing,particularly the comments of Mrs. Kay Gill of 1 Daniels Street,who (with her late husband)has owned the Daniels House for over 40 years, and whose oral testimony agreed with each of the affiants that 4 Bentley Street was not in fact operated as a 3-family dwelling as of the creation of the current Salem Zoning Ordinance in 1965,which combined testimony also agrees with the information contained in both the annual Salem Voting Lists and City Directory for 1965, as well as for the years immediately before and after 1965. Notwithstanding that my client's sister-in-law,long-time Assistant Health Agent, Virginia Moustakis,passed away last Thursday,and was buried yesterday, I am timely filing the enclosed today, as per my previous agreement with Beth Rennard. Please let me know if you have any questions. Ve S, John Carr Jr. Cc Elizabeth Rennard, Esq., Ci icitor Nina Cohen, Chairperson, Salem Zoning Board of Appeals Members of the Salem Zoning Board of Appeals Philip C. Wysor, Esq. Ms. Linda J. Moustakis Matthew Kelleher, 1"floor owner,4 Bentley Street Victoria Regan, 2"d floor owner, 4 Bentley Street John H. Carr,Jr.,Esq. i3 U I LD I WG.DEP T. 9 North Street Salem,MA 01970 Phone: 978-825-0060 zm JUL 19 A 9* 59 Fax: 978-825-0068 ;;' i '" SA,L , R"iA July 18,2006 ei By Hand Thomas St. Pierre,Building Inspector City of Salem 120 Washington Street, P Floor Salem,MA 01970 RE: 4 Bentley Street, Salem, MA Dear Mr. St. Pierre: You may recall that I represent Linda Moustakis of 2 Bentley Street, Salem, Massachusetts in her continuing dispute with Nicholas Osgood of Vermont, who owns the purported third floor apartment at the adjacent property at 4 Bentley Street,over the 3-story exterior staircase that was built only 2 `/2 feet from Ms. Moustakis' side property line(without having first obtained the necessary approval from the Salem Board of Appeals),and more importantly,with respect to whether the 4 Bentley Street property is in fact a legally-grandfathered 3-family dwelling to begin with. As a follow-up to my April 19,2006 letter to the Salem Board of Appeals(copy enclosed),I am herewith enclosing 6 originally-executed Affidavits concerning 4 Bentley Street, all of which are based on the first-hand knowledge and experience of the affiants, and all of which directly contradict Mr. Osgood's contention that the property was in fact continuously operated as a 3-family dwelling as of the creation of the current R-2 zoning for the neighborhood in 1965. Mr. Osgood was not the owner of 4 Bentley Street in 1965,and has no first-hand knowledge of what the circumstances of said property were in 1965. Also,unlike Mr. Osgood's unsupported assertions,there is nothing self-serving about the enclosed 6 Affidavits. Thus, since my understanding is that a variance to become a 3-family dwelling was never obtained,the purported third floor apartment at said property is illegal for this reason alone. Bear in mind that under black-letter Massachusetts zoning law,the burden of proof is not on those contesting the legality of a purported grandfathered use or structure,but on those claim ine the legality of said grandfathered use or structure. Surely the enclosed 6 original sworn Affidavits,which includes those from witnesses who are not related to Ms.Moustakis, should dispose of the underlying density issue once and for all,but I can submit other Affidavits as well,and/or put you in direct touch with other former tenants and/or knowledgeable witnesses,who are likewise unrelated to Ms. Moustakis. Thus, as I pointed out at the bottom of page 2 of my April 19, 2006 letter to the Board of Appeals,Mr. Osgood's application for a special permit tomorrow evening basically seeks approval for an illegal staircase to provide a second means of egress for a 3`d floor unit that is not even legal to begin with. We are herewith formally calling on you in your official capacity as Zoning Enforcement Officer to issue a cease and desist to Mr. Osgood prohibiting him from attempting to use the third floor(or any other part)of the 4 Bentley Street property as a separate apartment. Fortunately,my understanding is the purported attic apartment has not been occupied for a considerable period,and indeed,my further understanding is that the owner of the first floor condominium,Matthew Kelleher,and the owner of the second floor condominium, Victoria Regan,who were deeded their units by Mr. Osgood, are each opposed to the deck,catwalk, and 3-story exterior staircase. If you would like to discuss this matter further,or again,if you would like me to put you in direct touch with other witnesses,please do not hesitate to call me. Thank you in advance for you prompt attention to the foregoing. I s Jo H. Can r. Cc Nina Cohen, Chairperson, Zo ' oard of Appeals Matthew Kelleher, 1 s`floor owner, 4 Bentley Street Victoria Regan,2nd floor owner,4 Bentley Street Ms. Linda Moustakis AFFIDAVIT OF STANLEY DORAN CONCERNING 4 BENTLEY STREET I, Stanley Doran,being duly swom,hereby swear that the following is true: 1. I currently reside at 12 Cedar Hill Drive,Danvers, Massachusetts, 01923. 2. My sister,Marianne Bick,and I lived at the second floor unit at 4 Bentley Street, Salem,Massachusetts from 1957 to 1961 inclusive. 3. During the entire time we resided at 4 Bentley Street,the property was operated as a 2-family apartment building. 4. In 1961 we moved just around the corner to 155 Derby Street,where we continued to reside until 1968. 5. Even after my sister and I moved to 155 Derby Street in 1961,we continued to be very familiar with 4 Bentley Street,not only because we were intimately familiar with the neighborhood in general,having grown up there,but also because we had several friends and relatives living on Bentley Street,including our cousins,Philip and Louis Swiniuch,who resided at 14 Bentley Street. ,6. During the period 1961 to 1968 inclusive,4 Bentley Street was likewise - continuously operated as a 2-family apartment building. 7. I am not related by blood or by marriage to Linda Moustakis of 2 Bentley Street, Salem,Massachusetts,01970. Signed under oath this 9day of July 2006. Stanley AFFIDAVIT OF MARIANNE BICK CONCERNING 4 BENTLEY STREET I,Marianne Bick,being duly sworn,hereby swear that the following is true: 1. I currently reside at Unit No. 217 of the Cherry Hill Condominium Apartments,4 Duck Pond Road,Danvers,Massachusetts 01923. 2. My brother, Stanley Doran,and I lived at the second floor unit at 4 Bentley Street, Salem, Massachusetts from 1957 to 1961 inclusive. 3. During the entire time we resided at 4 Bentley Street,the property was operated as a 2-family apartment building. 4. In 1961 we moved just around the comer to 155 Derby Street,where we continued to reside until 1968. 5. Even after my brother and I moved to 155 Derby Street in 1961,we continued to be very familiar with 4 Bentley Street,not only because we were intimately familiar with the neighborhood in general,having grown up there,but also because we had several friends and relatives living on Bentley Street,including our cousins,Philip and Louis Swiniuch, who resided at 14 Bentley Street. 6. During the period 1961 to1968 inclusive,4 Bentley Street was likewise continuously operated as a 2-family apartment building. 7. I am not related by blood or by marriage to Linda Moustakis of 2 Bentley Street, Salem,Massachusetts,01970. Signed under oath this I tl day of July 2006. Marianne Bick AFFIDAVIT OF WILLIAM WILSON CONCERNING 4 BENTLEY STREET I, William Wilson,being duly sworn,hereby swear that the following is true: 1. I currently reside at 4200 South East 47th Place, Ocala, Florida 34480. 2. During 1963 and 1964,1 resided in theme floor apartment at 4 Bentley Street, Salem,Massachusetts during 1963 and 1964. 3. As I am 73 years old now,I was then 43 and 44 years old. 4. During my entire occupancy of my first floor apartment at 4 Bentley Street,the property was operated as a 2-family apartment building,the ,upAai£s unit being then occupied by an Edward Lassiter and his wife, Anna Lassiter. 5. I am not related by blood or by marriage to Linda Moustakis of 2 Bentley Street, Salem, Massachusetts, 01970. Signed under oath this 79 day of July 2006. William Wilson AFFIDAVIT OF BERNARD BARTNICKI CONCERNING 4 BENTLEY STREET I, Bernard Bartnicki,being duly swom,hereby swear that the following is true: 1. I currently reside at 122 Locust Street,Danvers, Massachusetts 01923 with my wife of 65 years,Jennie Bartnicki. 2. From the time my wife and I married in 1941,until 1998 (approximately), we visited my sisters and brothers,who resided in the Bartnicki family homestead at 2 Bentley Street, Salem,Massachusetts,virtually every weekend. 3. I can unconditionally state from first-hand knowledge that 4 Bentley Street was continuously used as a 2-family apartment building from 1941 to at least 1998 (at a minimum),which consisted of a first floor unit,and a second unit on the second floor. K Signed under oath this /� day of July 2006. Q 13.0-�Gt" Bernard Bartnicki AFFIDAVIT OF JENNIE BARTNICKI CONCERNING 4 BENTLEY STREET I,Jennie Bartnicki,being duly sworn, hereby swear that the following is true: 1. I currently reside at 122 Locust Street, Danvers, Massachusetts 01923 with my husband of 65 years,Bernard Bartnicki. 2. From the time my husband and I married in 1941,until 1998 (approximately),we visited my sisters and brothers,who resided in the Bartnicki family homestead at 2 Bentley Street, Salem,Massachusetts, virtually every weekend. 3. I can unconditionally state from first-hand knowledge that 4 Bentley Street was continuously used as a 2-family apartment building from 1941 to at least 1998 (at a minimum),which consisted of a first floor unit, and a second unit on the second floor. ff Signed under oath this day of July 2006. Jennie Barmicki AFFIDAVIT OF SANDRA I BALDWIN CONCERNING 4 BENTLEY STREET I, Sandra J. Baldwin, being duly swom,hereby swear that the following is true: 1. I reside at 1 Washington Street, Salem, Massachusetts 01970. 2. I am an office manager of the Boston Law firm of Goodwin Procter, formally Goodwin,Procter&Hoar. 3. My mother, whose maiden name was Helen Bartnicki, grew up in the Bartnicki family homestead along with her 6 siblings, including our uncle, Bernard Bartnicki, who is also submitting an affidavit,along with his wife, Jennie. 4. I am intimately familiar with 4 Bentley Street, Salem,Massachusetts,not only because I grew up at 2 Bentley Street,but also because I continued to visit numerous friends and relatives in the neighborhood even after moving out offBentley Street in 1954. 5. I can unequivocally state that until 1968 (at a minimum)4 Bentley Street, Salem,MA had been continuously operated as a 2-family apartment building,with one apartment on the first floor and the other on the second. 6. 1 now realize that a variance was never obtained for 4 Bentley Street to become a 3-family property,nor was it grandfathered as a legal 3-fancily property as of the creation of the current zoning in 1965. Signed under oath this /5� day of July 2006. Sandra J. Baldwin John H. Carr,Jr.,Esq. 9 North Street Salem,MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 August 7,2006 By Mail& By Facsimile: 978-745-9157 Elizabeth Rennard, City Solicitor Kaufman&Frederick 265 Essex Street Salem,MA 01970 Re: 4 Bentley Street, Salem, Massachusetts Dear Attorney Renard: Enclosed please find a copy of Attorney Wysor's 9:46 a.m. fax to me of Friday,August 4,2006,and my reply fax of today's date. Very truly yours, John H. Carr,Jr. Enc. Cc. Philip C. Wysor, Esq. Nina Cohen,Chairperson, Salem Zoning Board of Appeals Tom St. Pierre, Salem Building Inspector Ms. Linda Moustakis Mr.Matthew Kelleher Ms.Victoria Regan - - - o aci ruoa OLOYSKY Q BLOUSKY GLOVSKY & GLOVSKY Philip C.Wysor ATTORNEY$AT LAW PW-SUrnrl sk 2 Com DirectDial 312 FAX TRANSMITTAL COVER SHEET PLEASE DELIVER THE FOLLOWING PAGE(S)AS SOON AS POSSIBLE TO: Name: John H. Carr, Jr. Esquire Firm: Fax Number: (978) 825-0068 From: Philip C. Wysor, Esquire Direct Dial: (978) 720-3112 Date: August 4, 2006 Total Number of Pages (Including Cover Sheet), I IF YOU DO NOT RECEIVE ALL THE PAGES OR IF YOU HAVE TROUBLE, PLEASE CALLUS AS SOON AS PO_ 5 BLE YOU y2VE T SHOULD YOU WIS00 H TO SEND CJS A FAX COPY, WE HAVE AN AUTOMATIC FAX COPY NUMBER: (978) 921-7809 MESSAGE TO ACCOMPANY TRANSMITTAL: RE: 4 Bentley Street, Salem Mr. Carr: In response to your recent inqube advise at I will not be making Mr. Osgood available for a deposition. p . Wysor TRE INFORMATION CONTAINED IN TILLS FACSIMILE INFORMATION AND[S INTENDED ONLY FOR TRE USE OF THF INDIVIDUAL OA ENTITY NAMED ggOVE IF MAY aE PRIVILEGED OR CONFIDENTIAL THE READER OF THIS MESSAGE IS NOT TRE CNTEND$D RECIPIENT OR TRE EMPLOYEE OR AGENT DISSEMINATION,A STRI6UTION OR COPYINrNC p TIDn5 COMM�ICATI N S STRICTLY PROHIB TFD T `�Y Eight Washington Street Beverly,MA 01915 Tel' 978.922.5000 Fax: 978,921.7809 i1 rNr. John H. Carr,Jr., Esq. 9 North Street Salem,MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 August 7,2006 By Mail &By Facsimile: 978-921-7809 Philip C. Wysor,Esq. Glovsky&Glovsky 8 Washington Street Beverly,MA 01935 Re: 4 Bentley Street Dear Attorney Wysor: I was out of the office last Friday and so did not receive your 9:46 am. fax of Friday, August 4, 2006,until I returned to the office this morning. You indicated that your fax was"in response to [my] recent inquiry,"which I took to mean my fax to you of August 2,2006. While I am not surprised that you are unwilling to make Mr. Osgood available for a deposition, and thereby permit an unfettered examination of the facts,your fax was not a response to the primary thrust of my August 2, 2006 inquiry at all, since I had posed the following particular(and very specific)questions to you, namely: 1. Do you concede that 4 Bentley Street was in fact operated as a 2-family apartment dwelling as of the enactment of the current Salem Zoning Ordinance in 1965? 2. If your position is that 4 Bentley Street was then being operated as a 3-family, what evidence do you have or intend to submit in support of same,especially considering that your client has the burden of proof on this issue? 3. If you have no such evidence, do I infer correctly that your claim that 4 Bentley Street is now a legal 3-family dwelling rests entirely on your chapter 40A, Section 7 limitations argument as contained in your July 19, 2006 Memorandum to the Salem Zoning Board of Appeals? I note that you ducked answering any of those very specific questions in your August 4, 2006 fax, and thus,I can only conclude that(a)you have no evidence in opposition to the 10 sworn affidavits I have already submitted to the Salem ZBA,all of which agree that 4 Bentley Street was in fact operated as a 2-family apartment building as of the enactment of the current Salem Zoning Ordinance in 1965, and(b)that(notwithstanding same)your claim that 4 Bentley Street is nevertheless a legal 3-family dwelling is entirely based on your Section 7 limitations argument. We have a professional duty as attorneys to narrow factual and legal issues so that the Salem ZBA can make as informed and competent a decision as possible,so I am herewith asking you again to explicitly respond and(in writing)to my foregoing questions. Your continued silence on these points can only cause the Board to conclude that 4 Bentley Street was not legally grandfathered as a 3-family dwelling in 1965;that an illegal P apartment was created sometime thereafter;and that, in effect,your technical Section 7 limitations argument is nothing more than an attempt to legally ratify that illegal act. I urge you to respond to the foregoing questions by tomorrow at the latest,as I am anxious to incorporate your answers,whatever they are, into the Memorandum of Law I am about to draft. Thank you in advance to your anticipated cooperation in this matter. Very truly yours, John H. Carr,Jr. Cc. Elizabeth Rennard, Esq., City Solicitor Nina Cohen,Chairperson, Salem Zoning Board / Thomas St. Pierre, Salem Building Inspector Ms. Linda Moustakis Mr. Matthew Kelleher Ms.Victoria Regan John H. Carr,Jr.,Esq. 9 North Street Salem,MA 01970 Phone: 978-825-0060 Fax• 978-825-0068 August 7, 2006 Mr. Matthew Kelleher 4 Bentley Street,Unit No. 1 Salem,MA 01970 Re: 4 Bentley Street, Salem,Massachusetts Dear Mr. Kelleher: As of today's date I have not received a copy of your and Ms. Regan's joint August 2, 2006 letter addressed to the Salem Zoning Board of Appeals, attorney Philip Wysor, and myself,but this morning my client,Linda Moustakis,gave me a copy of said letter that you hand-delivered to her on Saturday,August 5,2006. In keeping with the request at the bottom of page 2 of your letter that all parties copy you and Ms. Regan on all communications"moving forward,"I am herewith enclosing a copy of attorney Philip Wysor's 9:46 am. fax to me of Friday,August 4,2006 together with a copy of my faxed reply of today's date,and my cover letter to attorney Renard of today's date. Since Mr. Wysor's August 4,2006 fax and my reply relate to 2 earlier letters from me to attorney Wysor,namely dated July 26,2006 and August 2,2005,1 am herewith enclosing copies of those faxes as well. Please let me know if you have any questions. Very truly yours, John H. Carr,Jr. Enc. Cc. Elizabeth Renard, Esq. Philip C. Wysor,Esq. Nina Cohen,Chairperson, Salem Zoning BO d of Appeals Tom St.Pierre, Salem Building Inspector Ms. Linda Moustakis Ms.Victoria Regan John H. Carr, Jr., Esq. 9 North Street Salem,MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 August 7, 2006 Ms.Victoria Regan 4 Bentley Street,Unit No. 2 Salem,MA 01970 Re: 4 Bentley Street, Salem,Massachusetts Dear Ms. Regan: As of today's date I have not received a copy of your and Mr. Kelleher's joint August 2, 2006 letter addressed to the Salem Zoning Board of Appeals,attorney Philip Wysor,and myself,but this morning my client,Linda Moustakis,gave me a copy of said letter that you hand-delivered to her on Saturday,August 5, 2006. In keeping with the request at the bottom of page 2 of your letter that all parties copy you and Mr. Kelleher on all communications"moving forward,"I am herewith enclosing a copy of attorney Philip Wysor's 9:46 am. fax to me of Friday,August 4,2006 together with a copy of my faxed reply of today's date,and my cover letter to attorney Rennard of today's date. Since Mr. Wysor's August 4, 2006 fax and my reply relate to 2 earlier letters from me to attorney Wysor,namely dated July 26,2006 and August 2,2005,I am herewith enclosing copies of those faxes as well. - Please let me know if you have any questions. Very truly yours, John H. Carr,Jr. Enc. Cc. Elizabeth Renard, Esq. Philip C. Wysor,Esq. Nina Cohen, Chairperson, Salem Zoning Bo d of Appeals Tom St. Pierre, Salem Building Inspector Ms. Linda Moustakis Mr.Matthew Kelleher (situ of 1$ttlem, lRttssac4usetts Public Propertq i9epartment Suilbing Department (One *alem (Breen 508-745-9595 Ext. 300 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer November 12, 1993 Four Bentley St. Realty Trust Anne Cardy 4 Commercial St. Marblehead, MA 01945 RE: 4 Bentley St. , Salem Dear Ms. Cardy: -r This office has learned you are trying to rent a third floor apartment at the above reference address. The records in this department show this property to be a two family dwelling in a Residential Two Family District (R-2) . To allow use as more than two family would require a variance from the City of Salem Zoning Board of Appeal. If you need any further information do not hesitate to contact this department. Sincerely, Leo E. Tremblay Zoning Enforcement7fficer LET:bms cc: Councillor Nowak, Ward 1 Ctu of ttlent, lassar4uset#s Public 1hoperfg Departineut Sk�ufMrvt�;'t~ �ui(littg �epttrfntent William H. Munroe One Salem Green 745-0213 November 20, 1985 Mr. Steven D. White 30 Commercial Street Marblehead, MA 01945 RE: 4 Bentley Street, Salem, MA Dear Mr. White, As per your request this office has researched record's available on your property located at 4 Bentley Street .with, the following findings. The building has been occupied as a three (3) family dwelling prior to 1965 and this use has continued to date. It is located in a residential two (2) family zone and is there for a LEGAL NON-CONFORMING USE.of land. This letter is in noway meant to confirm that the property does or does not conform to all current Building, Fire, Electrical, Plumbing or Gas Codes. Sincerely, William H. Munroe Inspector of Buildings Zoning Officer WHM/jdg John H. Carr, Jr., Esq. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 August 8, 2006 By Mail& By Facsimile: 978-745-9157 Elizabeth Renard, City Solicitor Kaufman&Frederick 265 Essex Street Salem,MA 01970 Re: 4 Bentley Street, Salem, Massachusetts Dear Attorney Renard: Enclosed please find a copy of Attorney Wysor's 3:34 p.m. fax to me of today's date, together with a copy of my 2-page faxed reply. Very truly yours, John H. Can,Jr. Enc. Cc. Philip C. Wysor,Esq. Nina Cohen, Chairperson, Salem Zoning Boar of Appeals Tom St. Pierre, Salem Building Inspector Ms. Linda Moustakis Mr. Matthew Kelleher Ms. Victoria Regan 08/08/2006 15:34 FAX 978 921 7809 GLOVSKY 8 GLOVSKY 0_1�0m' GLOVSKY & GLOVSKY ATTORNEYS AT 'LAW Philip C.Wysor pwysor a@glovsltyyx2xom Men Mal(978)720-3112 August 9,2006 SENT VIA MAIL AND FACSIMILE (978) 825-0068 John H. Carr, Jr., Esq. 9 North Street Salem, MA 01970 Re: 4 Bentley Street, Salem,Massachusetts Dear Attorney Carr: while I have no obligation to respond to your questions, and you have no authority to compel a deposition of my client, your letter of August 7, 2006,requires a response. If you are prepared to concede that the property at 4 Bentley Street constitutes a valid three-family dwelling, I am prepared to explore a new design for the stairway. I told you this after the last public hearing, and we are still willing to do so. However, if you insist on contesting the use of the property as a three-fancily structure, there is no point in further consideration of a new design for the staircase. V ours y ` - C Pln�p C. 9 ysor, PCW:Ikw cc: Elizabeth Rennard, Esq., City Solicitor Nina Cohen, Chairperson, Salem Zoning Board Thomas St.Pierre, Salem Building Inspector Nicholas Osgood )right Washington Street Beverly, MA 01915 Tel: 978.922.5000 Fax: 978.921.7809 John H. Carr,Jr., Esq. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 August 8, 2006 By Mail & By Facsimile: 978-921-7809 Philip C. Wysor, Esq. Glovsky& Glovsky 8 Washington Street Beverly,MA 01935 Re: 4 Bentley Street Dear Attorney Wysor: I have just returned from meetings outside the office to find your 3:31 am. fax of today's date. I realize that(at least at this stage)you have no obligation, at least as a technical matter, to respond to my three simple, straightforward, and precise questions, and that(again, at least at this stage) I have no present authority to compel a deposition of Mr. Osgood without jumping through a number of"hoops"that are too impractical to commence, especially within the limited time constraints I have before next Tuesday's deadline. But I would submit that in a larger sense, you do have a professional duty to narrow issues and thereby expedite a more orderly and informed decision by the Salem ZBA. You say that my letter of August 7,2006"require a response." Well then,why not respond? By response, I am specifically referring to your answering the three specific questions I posed in my August 7, 2006 letter, which constituted the entire body of my letter. A response is not raising a new question of your own,namely whether I will concede that 4 Bentley Street is a legal 3-family dwelling. I can only conclude from your latest evasion and unwillingness to answer my three simple and straightforward questions that 4 Bentley Street was not in fact a legal 3-fami� dwelling as of the enactment of the current Salem Zoning Ordinance in 1965, that the 3` apartment was illegally created sometime after 1967, and that you are relying entirely on a Section 7 limitations argument to, in effect,validate what was an illegal unit to begin with. In this regard, especially in light of the 10 Affidavits I have submitted to the Salem ZBA,I am particularly troubled by Leo Trembly's December 21, 1993 "determination" (without any explanation whatsoever)on the field card,which(incidentally)is not the building permit,that 4 Bentley Street is"a lawful three(3) family dwelling as per the Zoning Enforcement Officer,"especially in light of his two letters of only a month before, ie. dated November 12, 1993 and November 29, 1993 respectively,wherein he declared that said property was a 2-family dwelling. And while(at least at this stage)I cannot practically compel a deposition of your client or Mr. Trembly, that will definitely change in the litigation that will inevitably follow in the hopefully unlikely event I lose before the Salem ZBA, or(initially) Tom St. Pierre. Finally while I am still awaiting your response to my August 7,2006 letter that you say I deserve, let me respond to your fax: No, I am not willing to concede that 4 Bentley Street is a legal 3-family dwelling, and you will see why not when I file my brief next week. I invite you to take a look at the totality of the cases under Section 7 of Chapter 40A, and other sections thereof, including those relevant cases wherein your limitations argument was not upheld on appeal. Now that I have unequivocally responded to the question you posed in your fax this afternoon, even though I was not obligated to do so,I ask(for now the third or fourth time in as many letters)that you simply answer my 3 questions. I hope I am not being overly optimistic when I thank you in advance for your anticipated (and belated) cooperation in this matter. Very truly yours, John H. Carr,Jr. Cc. Elizabeth Rennard, Esq., City Solicitor Nina Cohen, Chairperson, Salem Zoning Board Thomas St. Pierre, Salem Building Inspector ✓ Ms. Linda Moustakis Mr. Matthew Kelleher Ms. Victoria Regan 4_�_a ®®® m®E®®®® m®®®®®® U y ® GLOVSKY & GLOVSKY ATTORNEYS AT LAW Philip C.Wysor pwysor@glovskyx2.com Direct Dial(978)720-3112 August 8, 2006 SENT VIA MAIL AND FACSIMILE (978) 825-0068 John H. Carr, Jr., Esq". 9 North Street Salem, MA 01970 Re; 4 Bentley Street, Salem, Massachusetts Dear Attorney Can: While I have no obligation to respond to your questions, and you have no authority to compel a deposition of my client, your letter of August 7, 2006, requires a response. If you are prepared to concede that the property at 4 Bentley Street constitutes a valid three-family dwelling, I am prepared to explore a new design for the stairway. I told you this after the last public hearing, and we are still willing to do so. However, if you insist on contesting the use of the property as a three-family structure, there is no point in further consideration of a new design for the staircase. lippyours, ysor PCW:lkw cc: Elizabeth Rennard, Esq., City Solicitor �m4,Cohen; Chairperson, Salem Zoning Board homas St. Pierre, Salem Building Inspector Nicholas Osgood Eight Washington Street Beverly, MA 01915 Tel: 978.922.5000 Fax: 978.921.7809 .,} coaoer� 1 ay 4oWna�� / CITY OF SALEM HEALTH DEPARTMENT BOARD OF HEALTH 9 North Street Salem, Massachusetts 01970 .508-741-1800 March 15, 1994 Ann Stunzi 4 Commercial Street Marblehead, Ma. 01945 Dear Madam: In accordance with Chapter 111, Sections 127A and 1278 of the Massachusetts General Laws, 105 CMR 400.00; State Sanitary Code, Chapter l: General Administrative Procedures and 105 CMR 410.00: State Sanitary Code, Chapter 11: Minimum Standards of Fitness for Human Habitation,an inspection was conducted of your property located at 4 Bentley Street Apt#2 2nd Floor occupied by Mrs.True conducted by Virginia Moustakis Acting Senior Sanitarian on March 11, 1994 @ 10:45 A.M.. Notice: If this rental unit is occupied by a child or children under the age of 6 years, it is the property owner's responsibility to ensure that this unit complies fully with 105 CMR 460.000: Regulations for Lead Poisoning Prevention and Control. For further information or to request an inspection, contact the Salem Health Department at 741-1800. You are hereby ORDERED to make a good-faith effort to correct these violations in accordance with the enclosed report. Failure on your part to comply within the specified time will result in a complaint being sought against you in Salem District Court. Should you be aggrieved by this Order,you have the right to request a hearing before the Board of Health. A request for said hearing must be received in writing in the office of the Board of Health within 7 days of receipt of this Order. At said hearing, you will be given an opportunity to be heard and to present witness and documentary evidence as to why this Order should be modified or withdrawn. You may be represented by an attorney. Please also be informed that you have the right to inspect and obtain copies of all relevant inspection or investigation reports,orders and other documentary information in the possession of this Board, and that any adverse party has the right to be present at the hearing. Please be advised that the conditions noted may enable the occupant(s)to use one or more of the statutory remedies available to them as outlined in the enclosed inspection report form. For the of Health Virgi�is Moustakis Acting Senior Sanitarian cc:Tenant Building Inspector Certified Mail# P 871 586 002 .� � Page 1 of SALEM HEALTH DEPARTMENT a: 9 North Street Salem,MA 01970 k._ State Sanitary Code,Chapter 11: 105 CMR 410.000 Minimum Standards`bt Fdness`tWguman Habitation :ts k 'tai�? r+'Trs3�II <ia Occupant: / pis 7X d A- Phone: 7 y0� R L . . �?tY.•i!r2f.'lPF:30kd`s�^Feiiti5�E�r.„ Address: 23 3:aki',ze��.,. y_er. .• a ...,a.3't ir.;,�vi stl;s':�.:'e[r.1,� P_ Floor . .. , y �7v F > /Apt ONrt1eRL;Q=Nn/.z?:�S �2.�/e.�.��:1� •�..+> .._ ---. .i: Addressx��-/ l i1m/v7 y�2C la l_ Al iy: c 10i;xi i-F - /�' Inspection Dates-- 3 //—' �/ Time::, Conducted By: �ni/S_7—A/2I's Accompanied By: 1Z249CiM 7— Anticipated Reinspection Dater ;r; ., W 4_ .. - Specified ` Reg# Vrolabon Time S �s vrOd / ON N 7 O r N e222 ZWU — acalAl /V reG L /E A T One or more of the above violations may endanger or materially impair the health, safety and well-being or th occupants(s). Code Enforcem nt Inspector Este es un documento legal importante. Puede que afecte sus derechos. Puede adquiriruna traduccion de esta forma. Legal Remedies for Tenants of Residential Housing The following Is a brief summary of some of the legal remedies tenants may use in order to get housing code violations corrected: ._. _ tv_a . 1.:Rent Withholding(Massachusetts Genual Laws,Chapter 139,section 8A):If Code Violations Are Not Being Corrected you maybe eatitleii to hold back your rent payments.You can do this without being evicted if- A. You can prove that your dwelling unit or common areas contain code violations which are serious enough to endanger or materially impair your health or safety and that your landlord knew about the violations before you were behind in your rent. B. You did not cause the violations and they can be repaired while you continue to live in the building. C. You are prepared to pay any portion of the rent into court if a judge orders you to pay it.(For this,it is best to put the rent money aside in a safe place.) 2. Repair and Deduce(Massachusetts Genual Laws,Chapter 111,section 127L):The law sometimes allows you to use your rent money to make the repairs yourself.if your local code enforcement agency certifies that there are code violations which endanger or matey impair your health,safety,or well-being,and your landlord has received written notice of the violations, you may be able to use_this remedy.If the owner fails to begin necessary repairs(or to enter into a written contract to have them made)within five.days after notice or to complete repairs within 14 days after notice,you can use up to four mouths'rent in any year to make the repairs. 3. Retaliatory Rent Increases or ivicf ons Prohibited(Massachusetts General Laws, Chapter 186,section 18,and Chapter 239, section 2A):The owner may not increase your rent or evict you in retaliation for making a complaint to your local code enforcement agency about code violations.If the owner raises your rent to tries to evict within six months after you have made the complaint,heorshe will:have to show-a good reason for the increase or eviction which is unrelated to your complaint. You may be able to sue the landlord for damages of he or she tries this. 4. Rent R ceiv mhip(Massachusetts General Laws,Chapter 11,section 127 C-H):The occupants and/or the Board of Health may petition the District or Superior Court to allow rent to be paid into mart rather than to the owner.The court may then appoint a "receiver" who may spend as much of the rent money as is needed to correct the violation.The receiver is not subject to a spending limitation of four months'rent 5. Breach of Warranty of Habitability: You may be entitled to sue your landlord to have all or some of your rent returned if your dwelling unit does not meet minimum standards of habitability. 6. Unfair and D=tiye Practices(Massachusetts General Laws,Chapter 93A): Renting an apartment with code violations is a violation of the consumer protection act and regulations,for which you may sue an owner. The information presented above Is only a summary of the law.Before you decide to withhold your rent or take any other legal action,It Is advisable that you consult an attorney.If you cannot afford to consult an attorney, you should contact the nearest legal services office,which is: Neighborhood Legal Services 37 Friend St. Lynn, MA 01902 (617) 599-7730 .�ONUITA,�A CITY OF SALEM MASSACHUSETTS _ PUBLIC PROPERTY DEPARTMENT 120 WASHINGTON STREET. 3RD FLOOR � f SALEM. MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 EXT. 380 poi FAX 978-740-9846 KIMBERLEY DRISCOLL MAYOR September 7, 2006 John H. Carr Jr. Esq. 9 North Street Salem, Ma. 01970 Mr. Carr: I have consulted with Assistant City Solicitor Jerry Parisella. As previously stated in my August 315`letter, you must file a separate appeal regarding the third unit. The applications are available at our counter. Srx117W.1 ly, Thomas St. Pierre Building Commissioner Zoning Enforcement Officer cc: Beth Rennard, City Solicitor Jerry Parisella, Assistant Solicitor Nina Cohen, Chairman, Board of Appeals r oA� CITY OF SALEM, MASSACHUSETTS PUBLIC PROPERTY DEPARTMENT 120 WASHINGTON STREET, 3RD FLOOR a ( a SALEM, MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 EXT. 380 ti.. FAX: 978-740-9846 KIMBERLEY DRISCOLL MAYOR August 31, 2006 COPY John H. Carr Jr., Esquire 9 North Street Salem, Ma. 01970 RE: 4 Bentley Street Dear Mr. Carr: I have reviewed the information regarding the legal status of 4 Bentley Street. It is my opinion that 4 Bentley is a 3 family dwelling. It is my understanding that the third unit is protected from any action by the City due to the provisions of Mass General Law 40A, Section 7 If you wish to appeal this determination, you must file an appeal with the Salem Zoning Board of Appeals. It should be noted, the issue of the three family status is not before the Board. The issue before the Board is the exterior deck and stairway. Sincer , }r Thomas St. Pierre Zoning Enforcement Officer Building Commissioner cc: Philip Wysor, Esq. Elizabeth Rennard, Solicitor Jerry Parisella, Assistant Solicitor co t¢9 $110 DEPT. . CITY OF SALEM HE H DEPARTMEITTE 2 56 ri'i 8 3 BOARD OF HEALTH P.ECEWID 9 North Street CITY OF C;ALEM 05s- ROBERT E. BLENKHORN Salem, Massachusetts 01970 HEALTH AGENT 508-741-1800 December 6, 1993 Four Bently Street Trust Anne Carey stunzi Trustee, Paul Stunzi 4 Corinlercial Street. Marblehead, Ma 01945 Dear Mr. and Mrs. Stunzi: On 12/6/93, we received a phone call from your tenant Mrs. True, apartment #2 at 4 Bently Street in Salem. She stated that a portion of the ceiling in the living xoom had collapsed as the result of water damage frau the apartment on the third floor. (See our December 3, 1993 Inspection Report citing this violation) . Subsequently, a phone call was placed to you notifying you of this and the message was left on an answering machine. On 12/7/93, Building Inspector Leo Tremblay notified us that he had been in contact with you and that you are in the process of correcting the source of the leaking and making all structural and ceiling repairs necessary. Our records indicate that no Certificate of Fitness was ever issued for any of the apartments at that address, which constitutes a violation of City of Salem Code of Ordinances, Article XIII and violation of State Sanitary Code, Chapter Il, 105 CMR 410.000 "Minimum Standards of Fitness for Human Halitation. On June 1, 1992, a notice was sent to you regarding the rental of Aparlanent 01 but you did not respond. Be advised that Certificates of Fitness (in effect since 1988) must be obtained for all apartmants. . Contact this office at your earliest convenience to arrange the same for apartments 1 and 3. A Certificate inspection and reinspection will be conducted by V. Moustakis. (Apt, #2) . Enclosed is paperwork regarding the above ordinance, plus applications for all apartments. Your prompt response is appreciated to resolve the existing Certificate of Fitness violations. FOR THE BOARD OF HEALTH REPLY TO; ROBERT E. BLENKHORN, C.H.O. VIRGINIA MDUSTAKIS Health Agent Sanitarian ZI-A LS CC: Building Inspector, Fire Prevention, Hard Councillor „ 7�Ni n T Co. E,yi res} ,v+aA a,. e% R CITY OF SALEM HEALTH DEPARTMENT _ BOARD OF HEALTH 9 North Street OBERT E.BLENKHORN Salem,Massachusetts 01970 HEALTH AGENT 508-741-1800 December 3,1993 Four Bentley Street Trust Ann Carey Stunzi,Trustee 4 Commercial Street Marblehead, MA.019.45 k. Dear Ms Carey In accordance with Chapter III,Sdbt1ons127A and 1278 of tie Massachusetts General Laws,105 CMR 400.00; State Sanitary Code;Chapter is General Administrative Procedures and 105 CMR 410.00: State Sanitary Code, Chapter:II Minimum Standards of Fitness for Human Habitation,an inspection was conducted of your property .' k>cated:at 4 BeriUey Street Apt 2 occupied by Mrs.True conducted by Virginia Moustalds,Sanitarian of the Salem Health Department on December 2,1993 at-2:30_p.m:,... ,__ Notice ,if this rental unit is occupied by a child or children under the age of 6 years,it is the property owner's respons�7rty to ensure that this unit complies fully with 105 CMR 460.000: Regulations for Lead Poisoning PreVention and Control.;For further information or to request an inspection,contact the Salem Health Depahment at741-1800. - You are hereby ORDERED to make a good-faith effort to correct these violations In accordance with the enclosed report. Failure on your part to comply within the specked time will result in a complaint being sought against you in Salem District Court. ' Should you be aggrieved by this Order,you have the right to request a hearing before the Board of Health. A request for said hearing must be received M writing in the office of the Board of Health within 7 days of receipt of this Order. At said hearing,you will be given an opportunity to be heard and to present witness and documentary evidence as to why this Order should be modified or withdrawn. You may be represented by an attorney. Please also be informed that you have the right to inspect and obtain copies of all relevant inspection or investigation reports,orders and other documentary information in the possession of this Board,and that any adverse party has the right to be present at the hearing. Please be advised that the conditions noted,may enable the occupant(s)to use one or more of the statutory remedies available to them as outlined in the enclosed inspection report form. FO THE BOARD OF" REPLY TO Rok�lenkhorn, C.H.O. �" 1 Virginia Moustakis Health Agent Sanitarian cc: Fre Prevention / Building Inspector(/ CERTIFIED MAIL P 871 581 405 Y Page 1 of y << SALEM HEALTH DEPARTMENT 9 North Street Salem.MA 01970 State Sanitary Code, Chapterpll;t 105;,CMR 410.000 Minimum Standards of Fitness(or_Fluman Habitation Occupant: Phone:—, a S� A>L wafs'M,{ 7L:J"10 t .>7lki#.+:3I Zi1lt. .+1>1 ee`,?•. �... :A JiJ^F is b uaai}Aa:. Address: v� A><IV T2 c/ St' Apt. D Floor2�_' 'Owner. ANN" oi.PYer`rNl' usT ;t g..{ crS A-Address: --A,/ C'rT/►7m`EQ��L " 1�Ae� n Tia ai9h�' Inspection Date Conducted By: '-'i' (t(!C 1 #,°1 s Accompanied By: MYl r "r Anticipated Reinspection Date: q sts:. ; ; , •t3 -. III-q 7rto'i rZjl m M',;i 5: t-_"• .' i!39?,. 11 s v.j _ n I(:...`F`t 3 .r' •`#,?' X,:.. «....... ua - ._ d3i I�f 7S.-r&&loiV.JuG x t v3 tL 3v e� ;5 8 .t"`n ^+Ju I ✓sr..r..,. 1 i. t� Gt QL ei a i a.. d ":F'. . Spec'rfred Reg# Vrolation Time i{{rRlRta di�N K pf. > to U ;3 Q J3G 1kJ(fiS G 3 A F . ] i 3Y V IWIW Y .. 4 45>❑t i:F'i rtj?�'Pe 2q< 1p' .. :'a,+ .v.+< r..:if.,v .:,d: ';'d..al .t..J:-i! It t w a . IV /e GU / w a ,v 4 081 r-d .OT- N 1/f ne or more of the above violations may endanger or materially impair the health, safety and well-being or the occupants(s). j Code Entor ement Inspector Este es un documento legal importante. Puede que afecte sus derechos. Puede adquitiruna traduccion de esta forma. k' APPENDIX II(14) Legal Remedies for Tenants of Residential Housing The following Is a brief summary of some of the legal remedies tenants may use In order to get housing code violations corrected: 1.. Rent Withholding(Massachusetts General laws,Chapter 239,section 8A): If Code Violations Are Not Being Corrected you may be entitled to hold back your rent payments.You can do this without being evicted if: A. You can prove that your dwelling unit or common areas contain code violations which are serious enough to endanger or materially impair your health or safety and that your landlord knew about the violations before you were behind in your rent B. You did not cause the violations and they can be repaired while you continue to live in the building. C. You are prepared to pay any portion of the rent into court if a judge orders you to pay it (For this,it is best to put the rent money aside in a safe place.) 2. R=ir and Deducr(Massachusetts Genual Laws,Chapter 111, section 127L):The law sometimes allows you to use your rent money to make the repairs yourself.If your local code enforcement agency certifies that there,are code violations which endanger or materially impair your health,safety,or well-being,and your landlord has received written notice of the violations, you may be able to use this remedy.If the owner fails to begin necessary repairs(or to enter into a written contract to have them made)within five days after notice or to complete repairs within 14 days after notice, you can use up to four months'rent in any year to make the repairs. 3. Rera]iatory Rent Increases or Evictions Prohibit (Massachusetts General Laws,Chapter 186,section 18,and Chapter 239, section 2A):The owner may not increase your rent or evict you in retaliation for making a complaint to your local code enforcement agency about code violations.If the owner raises your rent to tries to evict within six months after you have made the complaint,he or shewill:have to-show.a good.reason for the increase or eviction which is unrelated to your complaint.You may be able to sue the landlord for damages of he or she tries this. 4. Rent Receiversbin(Massachusetts Genual Laws,Chapter 11,section 127 C-H):The occupants and/or the Board of Health may petition the District or Superior Court to allow rent to be paid into-court rather than to the owner.The court may then appoint a "receiver" who may spend as much of the rent money as is needed to correct the violation.Ile receiver is not subject to a spending limitation of four months'rent. 5. Breach of Warranty of ahi ahility:You may be entitled to sue your landlord to have all or some of your rent returned if your dwelling unit does not meet minimum standards of habitability. 6. Unfair and Deceptive Practices(Massachusetts General Laws,Chapter 93A):Renting an apartment with code violations is a violation of the consumer protection act and regulations,for which you may sue an owner. The information presented above is only a summary of the law.Before you decide to withhold your rent or take any other legal action,it is advisable that you consult an attorney.If you cannot afford to consult an attorney,you should contact the nearest legal services office, which is: Neighborhood Legal Services 37 Friend St. Lynn, MA 01902 (617) 599-7730 ` u CITY OF SALEM HEALTH DEPARTMENT BOARD OF.HEALTH 5 - 9 Nortli Street ROBERT E. BLENKHORN Salem, Massachusetts 01970 HEALTH AGENT _ " 508-741-1800 February;11, 1994 Ann C.& Paul Stunzi 4 Commercial Street Marblehead, Ma. 01945 Dear.Ann C. &Paul Stunzi, In accordance with Chapter III, Sections 127A and 1278 of.the Massachusetts General Laws, 105.CMR 400.00; State Sanitary Code, Chapter 1: General Administrative Procedures and 105 CMR 410.00: State Sanitary Code, Chapte'r.11: Minimum Standards of Fitness for Human Habitation, an,inspection was conducted of your property locatediat .4 Bentley Street, occupied by-1Mrs.True conducted by Virginia Moustakis, Sanitarian of the Salem-Health.Departmenf.on-Febr6ary-:8,;1994-@-10:30 a.m.. Notice: If this rental unit is,occupied by a child or children under the age of 6 years, it is the property owner's responsibility to ensure that this unit complies fully with 105 CMR 460.000: Regulations for Lead Poisoning Prevention and Control. For further information or to request an inspection, contact the Salem Health Department at 741-1800.. You are hereby ORDERED to make a good-faith effort to correct these violations in accordance with the enclosed report. r. Failure on your part to,comply within"the specified time will result in a complaint being sought against you in Salem District Court. Should you be aggrieved by this Order, you have the right to request a hearing before the Board of Health. A request for said hearing must be received in writing in the office of the Board of Health within 7 days of receipt of this Order. At said hearing,you will be given an opportunity to be heard and to present witness and documentary evidence as to why this Order should be modified or withdrawn. You may be represented by an attorney. Please also be informed that you have the right to inspect and obtain copies of all relevant inspection or investigation reports, orders and other documentary information in the possession of this Board, and that any adverse party has the right to be present at the hearing. Please be advised that the conditions noted may enable the occupant(s)to use one or more of the statutory remedies available to them as outlined in the enclosed inspection report form. FOR THE BOARD OF HEALTH REPLY TO Rdbert E. enkhorn�� Virginia Moustakis Health Agent Sanitarian REB/bas cc: Tenant Building Inspector Fire Prevention Certified Mail P 871 581 467 Page 1 of SALEM HEALTH DEPARTMENT 9 North Street Salem, MA 01970 State Sanitary Code, Chapter If: 105 CMR 410.000 Minimum Standards of Fitness for Human Habitation Occupant: AlR s 77?4/l" Phone: lio - 01 F-ka Address: 4e AE/vTLv \S Apt. Floor Owner: AAyN (l,PtN Address: i/ �d�nn7 PkCjQ� st d/P/3C lS�P� Na OYQ�/S Inspection Date: r/L s_9 Time: 10,'30 /f7",, Conducted By: ✓•/ / Accompanied By: TZNOvr)7 Anticipated Reinspection Date: Specified Reg # Violation Time 410. . . . p C 1;10,5 Jr`` 4,9 cc.° o y✓ N6 N One or more of the above violations may endanger or materially impair the heath, safety and well-being or the occupants(s)- Code Enforcement Inspector Este es un documento legal importante. Puede que afecte sus derechos. Puede adquiriruna traduccion de esta forma. APPENDIX H(14) Legal Remedies for Tenants of Residential Housing The following Is a brief summary of some of the legal remedies tenants may use In order to get housing code violations corrected: 1. Rent Withholding(Massachusetts General laws,Chapter 239,section 8A):If Code Violations Are Not Being Corrected you may be entitled to hold back your rent payments.You can do this without being evicted if: A. You can prove that your dwelling unit or common areas contain code violations which are serious enough to endanger or materially impair your health or safety and that your landlord knew about the violations before you were behind in your rent B. You did not cause the violations and they can be repaired while you continue to live in the building. C. You are prepared to pay any portion of the rent into court if a judge orders you to pay it(For this,it is best to put the rent money aside in a safe place.) 2. Repair and De (Massachusetts General Laws,Chapter 111,section 127L):The law sometimes allows you to use your rent money to make the repairs yourself.If your local code enforcement agency certifies that there are code violations which endanger or materially impair your health,safety,or well-being,and your landlord has received written notice of the violations, you may be able to use this remedy.If the owner fails to begin necessary repairs(or to enter into a written contract to have them made)within five days after notice or to complete repairs within 14 days after notice,you can use up to four months'rent in any year to make the repairs. 3. ReLiatory Rent Increases or Evictions Prohibited(Massachusetts General Laws,Chapter 186,section 18,and Chapter 239, section 2A):The owner may not increase your rent or evict you in retaliation for making a complaint to your local code enforcement agency about code violations.If the owner raises your rent to tries to evict within six months after you have made the complaint heor.she will have to show a_good reasott foc the increase or:eviction:which:is unrelated to.your.complaint:You:. may be able to sue the landlord for damages of be or she tries this. 4. Rent Receivership(Massachusetts General Laws,Chapter 11,section 127 C-H):The occupants and/or the Board of Health may petition the District or Superior Court to allow rent to be paid into court rather than to the owner.The court may then appoint a "receiver"who may spend as much of the rent money as is needed to correct the violation.,The receiver is not subject to a spending limitation of four months'rent 5. Breach of Warranty of Habitability:You may be entitled to sue your landlord to have all or some of your rent returned if your dwelling unit does not meet minimum standards of habitability. 6. Unfair and Deceptive Practices(Massachusetts General Laws,Chapter 93A):Renting an apartment with code violations is a violation of the consumer protection act and regulations,for which you may sue an owner. The Information presented above Is only a summary of the law.Before you decide to withhold your rent or take any other legal action,it is advisable that you consult an attorney.If you cannot afford to consult an attorney,you should contact the nearest legal services office, which is: Neighborhood Legal Services 37 Friend St. Lynn, MA 01902 (617) 599-7730 M�'/�f � iI ! _ .►..' . . . l!. . . ,. ..r ice ' i' ,./ � /ter !/ .I, /r�• ®® %/ i 'L �. ti i • / ii �' is �i i�.i i, !/ 1 ®�_ %' �� 1. .• � L I' f/�J'.'/ ,ii J�.sI ..!%Il�� ore MOM S- O _ ,�i/ I ,, /i i�L/ I • 11�1GZ�J•� mai.t,. / .� t/ i r� . �►�s: it ��-M_ ars :i cam'u i i ' �MM� � � . / W %,'a A / . r ;.•.,._ ., I,r.. '�t'i.' �. !J:' it CITY OF SALEM 3 PUBLIC PROPRERTY DEPARTMENT KIAIDERLEY URISCOIL MAYOR 120 WASHINGTON STREET*SALEM,MASSACHUSETTS 01970 Tib.:978-74.5-9595 ♦FAX:978-740-9846 January 5, 2006 Nick Osgood 4 Bentley Street Salem, Mass. 01970 RE: Zoning Violation Mr. Osgood, Via a phone message you left at my office, you indicated that you were not clear on the specific Zoning Violation. Salem Zoning Ordinance Section 7-8 Accessory Structures (3) states that, "no unattached accessory building or structure shall be located nearer than (5) five feet to any side lot line." In Salem, I have consistently treated decks, with no roofs, as Accessory Structures. The egress stair you constructed does not meet this dimensional requirement. Hopefully this answers your question. Sincerely, Thomas St.Pierre Building Commissioner Zoning Officer Thomas St.Pierre G a 6.5— Building Inspector Salem, MA. 01970 Dear Sir, I am writing this letter to request the revocation of Permit 1006-05 for a staircase and deck at 4 Bentley St., Salem, Ma.01970. The permit allows the staircase to be built only two feet two and one-half inches from my property and fence line and is an invasion of my privacy and a devaluation of my property. It is also in violation of the state building code 780 CMR, 1014.12.1 which states that staircases and other structures shall be ten feet away from the property lines. I request an answer in writing that there is another law that contradicts this code. Thank you, Linda J. Moustakiiss � a aCITY OF SALEM, MASSACHUSETTS PUBLIC PROPERTY DEPARTMENT 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 EXT. 380 MAYOR FAX: 978-740-9846 November 22, 2005 Nicholas Osgood 4 Bentley Street Unit#3 Salem, Ma. 01970 RE: Building Permit#1006-05 Dear Mr. Osgood: This Department issued for your property building permit number 1006-05 to construct a second means of egress stairs from your third floor unit. At the time of issuance, this Department told you that the stair was exempt from zoning regulations because it is a required egress. Unfortunately, this Department has not been able to find any language allowing this egress to be exempt from zoning. The side setback for open decks and stairs is 5 feet. You are directed to correct this zoning violation within 60 days upon receipt of this notice. Your right to appeal is to the Salem Zoning Board of Appeals. If you wish to discuss this matter, please contact me directly. Sincerely, Thomas St. Pierre Zoning Enforcement Officer cc: Kate Sullivan, Mayors Office Elizabeth Rennard, Assistant Solicitor Tito of 19- tt1Em, massac4usPtts n Public Propertg Department �a^ Nuilbing i3epartment (8ne Salem Green 500-745-9595 Ext. 380 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer March 18, 1994 Four Bentley St. Realty Trust Anne Curry, Tr. 4 Commercial St. Marblehead, MA 01945 RE: 4 Bentley St. Dear Ms. Curry: I have received a complaint from the City of Salem Health Department regarding the second means of egress at the above referenced property. I conducted an inspection of the property today, March 18, 1994 and found the egress from the third floor apartment had been totally blocked up with wood panels. This a violations of the Massachusetts State Building Code Section 3401. 10. 1 Means of Egress. You are hereby requested to contact this office immediately upon receipt of this letter in order to correct this situation. Failure to comply will result in the appropriate legal action being taken. Sincerely, Leo E. Tremblay Inspector of Buildings LET:bms cc: Councillor Ahmed \4bntly\ (situ of IgWrm, Massar4usietts " t'o Public Propertp Department Nuilbing Department (One Balem (ureen 508-745-9595 ext. 380 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer March 28, 1994 Four Bentley St. Realty Trust Anne Curry, Trustee 4 Commercial Street Marblehead, A 01945 RE: 4 Bentley Street Dear Ms. Curry: Thank you very much for your prompt response to the notice dated March 18, 1994 regarding second means of egress from the third floor of the above referenced property. I appreciate your taking immediate action to correct said violations. This office will notify all the appropriate departments and the Ward Councillor that this situation has been brought to a satisfactory conclusion. Sincerely, ��i�c{i/-- Leo E. Tremblay v Inspector of Buildings Zoning Enforcement Officer LET:bms cc: Councillor Ahmed, Ward 1 of Salem, Maosar4uoetto n ti^ public Prnlrertg Department Nuilbing Department (One *stem (6reen 508-745-9595 Ext. 300 Leo E. Tremblay Director of Public Property inspector of Building Zoning Enforcement Officer March 18, 1994 Four Bentley St. Realty Trust Anne Curry, Tr. 4 Commercial St. Marblehead, MA 01945 RE: 4 Bentley St. Dear Ms. Curry: I have received a complaint from the City of Salem Health Department regarding the second means of egress at the above referenced property. I conducted an inspection of the property today, March 18, 1994 and found the egress from the third floor apartment had been totally blocked up with wood panels. This a violations of the Massachusetts State Building Code Section 3401.10.1 Means of Egress. You are hereby requested to contact this office immediately upon receipt of this letter in order to correct this situation. Failure to comply will result in the appropriate legal action being taken. Sincerely, Leo E. Tremblay Inspector of Buildings LET:bms cc: Councillor Ahmed \4bntly\ coax y a � u �ca�rda dN� CITY OF SALEM HEALTH DEPARTMENT BOARD OF HEALTH 9 North Street Salem, Massachusetts 01970 508-741-1800 March 16, 1994 Leo Tremblay, Building Inspector One Salem Green Salem, MA 01970 Dear Sir: While conducting inspections at 4 Bentley Streeet, owned by Ann Stunzi, 4 Commerical Street, Marblehead, MA 01945, in accordance with State Sanitary Code, Chapter 11, 105 CMR 410.000 "Minimum Standards of Fitness for Human Habitation",the following was noted: This is a three family dwelling. There is no 2nd means of egress for the occupied third floor apartment. This department has no record of a Certificate of Fitness being issued for this apartment at any time. We are requesting your assistance and determination in this matter. Thank you. FOR THE BOARD OF HEALTH VIRC(fNIA MOUSTAKIS ACTING HEALTH AGENT VMrnp cc: Fire Prevention (Situ of ihlem' massac4usetts i Public Prapertg Department Iluilbing Department (One ftlem (;reen 500-745-9595 fA. 300 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer November 29, 1993 Four Bentley St. Rlty. Trust Anne Cardy 4 Commercial Street Marblehead, MA 01945 RE: 4 Bentley St. , Salem Dear Ms. Cardy: We have been informed that you have rented a third floor apartment at the above referenced property. You were told by this department in a letter dated November 12, 1993 that you could not have a third unit there, that this property, according to our records, is only a two family dwelling and it would require Board of Appeal action to increase the use. You have evidently chose to ignore my letter. You are hereby ordered to cease and desist all illegal use of the property and to contact this office upon receipt of this notice to advise use of your intentions. Failure to comply will result in the appropriate • legal action being taken. Sincerely, 7 Leo E. Tremblay Zoning Enforcement Officer LET:bms Certified Mail #P 921 991 557 /4bntly/ TRU of i$ttlem, Mussar4usetts << Public Propertg Bepartment Guilbing lgepartment (One #alrm (ircen 508-745-9595 Ext. 300 Leo E. Tremblay Director of Public Property inspector of Building Zoning Enforcement Officer November 12, 1993 Four Bentley St. Realty Trust Anne Cardy 4 Commercial St. Marblehead, MA 01945 RE: 4 Bentley St. , Salem Dear Ms. Cardy: This office has learned you are trying to rent a third floor apartment at the above reference address. The records in this department show this property to be a two family dwelling in a Residential Two Family District (R-2) . To allow use as more than two family would require a variance from the City of Salem Zoning Board of Appeal. If you need any further information do not hesitate to contact this department. Sincerely, Leo E. Tremblay Zoning Enforcement 7fficer LET:bms cc: Councillor Nowak, Ward 1 Tity of #Ulem, mttoottclluoetto � r Public Propertil Department Nuilbing Department (One #stem Me= 508-745-9595 Ext. 300 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer November 29, 1993. Four Bentley St. Rlty. Trust Anne Cardy 4 Commercial Street Marblehead, MA 01945 RE: 4 Bentley St. , Salem Dear Ms. Cardy: We have been informed that you have rented a third floor apartment at the above referenced property. You were told by this department in a letter dated November 12, 1993 that you could not have a third unit there, that this property, according to our records, is only a two family dwelling and it would require Board of Appeal action to increase the use. You have evidently chose to ignore my letter. You are hereby ordered to cease and desist all illegal use of the property and to contact this office upon receipt of this notice to advise use of your intentions. Failure to comply will result in the appropriate legal action being taken. Sincerely, 4��>ec Leo E. Tremblay Zoning Enforcement Officer LET:bms Certified Mail #P 921 991 557 /4bntly/ i CITY OF SALEM P . .9'21 99� 557 r,PL£M ,US.POkAGE�r BUILDING DEPARTMENT CITY HALL ANNEX - I NOV2993 0 2 2 9 y ONE SALEM GREEN SALEM,MASSACHUSETTS 01970 *' *A - He.WT£R 412154 F Bent-' St.R Tr. Anne 5 J 4 Co ia1 . Mehhead,. A 01 I Name j 1st Notice 30-23 2nd Notice 12--OA3? SENDER: I also wish to receive the . Complete items,and/or 2 for additional services. i . Complete items 3,and 4a a b. following services(for an extra fee): i Print your name and address on the reverse of this form so that we can return this card too you 1. ❑ Addressee's Address • Attach this form to the front of the mailpiece,or on the back if space does not permit. • Write 'Return Receipt Requested"on the mailpiece below the article number. 2. ❑ Restricted Delivery l The Return Receipt Fee will provide you the signature of the person delivered to and the Consult postmaster for fee. date of delivery, 3.Article Addressed to: 4a.Article Number P 921 991 557 lLJNE,. Four oannay st.nity.Tr. m Anne LUrdf4b.Service Type Or 4 Co=emlal ;t. z Marblobead, IIA 01945 CERTIFIED o m m I. 7.Date of Delivery i > m m 5.Signature—(Addressee) S.Addressee's Address X m (ONLY if requested and fee paid.) I I 6.Signature—(Agent) I I PS Form 3811,November 1990 DOMESTIC RETURN RECEIPT I \ i y CONUIT ELIZABETH M. RENNARD CITY OF SALEM JERALD A.PARISELLA City Solicitor KIMBERLEY L. DRISCOLL, MAYOR Assistant City Solicitor 93 Washington Street One School Street Salem, MA 01970 Beverly, MA 01915 Tel:978.619.5631 LEGAL DEPARTMENT Tel: 978.921.1990 Fax:978.744.1279 93 WASHINGTON STREET Fax:978.921.4553 Email: brennard@salem.com SALEM, MASSACHUSETTS 01970 Email:jap@alexanderfemino.com June 8, 2010 Thomas St. Pierre Building Commission City of Salem 120 Washington Street Salem, MA 01970 RE: Osgood v. Moustakis Dear Tom: Enclosed please find a copy of Judge Cometta's decision upholding the decision of the Salem ZBA ;o deny a variance for the fire escape Nick Osgood built at 4 Bentley Street. There is a 10-day period to file an appeal. if no appeal is filed, then you are free to take action regarding the removal of the structure. I understand there is a tenant living on the third floor, so Mr. Osgood will need a reason rble period of time to evict the tenant prior to the removal of the structure. Please contact me with any questions or concerns. Vgy truly your G�l� U' J ald A. Parisella JAP/gsw Enc. Cc: Elizabeth M. Rennard, City Solicitor 22 COMMONWEALTH OF MASSACHUSETTS Essex, ss. Trial Court of the Commonwealth The Superior Court Docket Nos.` ESCV 06-2399-C 06-2343-C 06-2441-C Linda Moustakis, - Plaintiff vs. Nicholas Osgood, et al, Defendants and Linda Moustakis, Plaintiff vs. Nicholas Osgood, et al, Defendants and Nicholas Osgood, Plaintiff vs. Linda Moustakis and the Salem Board of Appeals, et al, Defendants FINDINGS, RULINGS.AND.ORDER FG"NTRY OF JUDGMENT:-- - -- - I. On March 20, 200?-,by order of the Court, (Lowy, RAJ), these three matterswere consolidated for trial. The issues surrounding these three cases have had what can only be described as a long and tortured history. They involve zoning issues regarding premises situated at 4 Bentley Street in Salem, Massachusetts. On March 16, 2010, by order of the Court (Cornetta, J.), the issues were finally joined for hearing on cross motions for summary judgment (Mass. R. Civ. P. 56) as to docket number ESCV 06- -two- 2441-C. two-2441-C. As to docket number ESCV 06-2399-C, any pending appeal in that matter is now ordered dismissed pursuant to this Court's March 16, 2010 riding and order. In similar fashion, as to docket number ESCV 06-2343, that matter now stands dismissed, with prejudice. ll.. There now remains before this Court the matter of ESCV 06-2441-C which constitutes an appeal and collateral claims brought pursuant to G.L. Ch. 40A, section 17, by the plaintiff Nicholas Osgood seeking relief from a final denial by the defendant members of the Salem Board of Appeals of a petition for a variance from the zoning ordinance of the City of Salem to permit the said plaintiff Osgood to maintain an exterior stairway constructed at 4 Bentley Street in Salem, Massachusetts as a second means of egress from a"grand fathered", non conforming use (G.L. Ch. 40A, s. 7) constituting a dwelling unit located on the third floor of the said 4 Bentley Street premises. Absent the requested zoning relief, this third floor unit cannot be occupied as a dwelling unit since it has no second means of egress and otherwise is in violation of the state building code and fire safety code. The parties have appeared before this Court for hearing on cross motions for summary judgment. After said hearing, findings of fact and rulings of law are entered as follows, viz: The Court adopts as facts found in this case the parties'joint statement of uncontested facts filed on March 15, 2010 and incorporated by reference herein and made a part hereof(See; Exhibit 41 attached). The main issue now before this Court is whether or not the Salem Board of Appeals acted in an arbitrary and capricious manner in denying the plaintiff Osgood's request for zoning relief on December 7, 2006. Based upon facts found and applicable law, the answer to that question is no it did not. Discussion: Pursuant to applicable law, in order for a zoning board to lawfully grant an applicant relief from a zoning ordinance or by law, it must find that the petitioner.has proven each of the following criteria: 1. Literal enforcement of the provisions of the ordinance or by law would involve substantial -three- hardship, financial or otherwise to the applicant; 2. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially deviating from the intent of the district or purposes of the ordinance or by law, and; 3. Special conditions and circumstances exist which especially affect the land, building or structure involved and which do not generally affect other lands, buildings and structures in the same zoning district. The subject premises, 4 Bentley Street, is !ocated in an R-2 designated zone of the city of Salem. The neighborhood in general and zone in particular is a fully developed residential area that is particularly dense. Open areas are either few or non existent. Front, side and rear yards within the zoning district are tight while access to light and air are both at a premium. The significant density of the zoning district makes virtually any derogation from the zoning ordinance a major concern for both the city and persons residing within the neighborhood. The zoning ordinance of the city of Salem provides in pertinent part that its public purpose is "to secure safety from fire..., to provide adequate light and air, to prevent overcrowding of land, to avoid undue concentration of population, to conserve the value of land and buildings, to preserve and protect open space (and) to prevent blight." In this case, the Zoning Board-of Appeals could find (and based upon its unanimous vote in denying the plaintiff's request for zoning relief did find) that the exterior stairway in question derogated from the zoning ordinance by denying adequate light and air, creating further density on the ground thereby adversely impacting upon fire safety while creating overcrowding of land and adversely impacting upon the value of land and buildings. The stairway in questiQ"onstitutes an enormous.structure rising-some.two storms-above the - ground in a very densely populated area. Its manner of construction towers over abutting properties while consuming significant portions of the rear yard area of 4 Bentley Street. The stairway blocks light and air from the windows on the side of the structure where it is located while further blocking access to light and air to abutting properties. It creates a significant structural and visual — - barrier to both the property it is constructed-upon as well as to abutters' properties. Its existence i§-- found sfound to substantially derogate from the intent and public purpose of the city's zoning ordinance. Given the very tight and dense character of the neighborhood, there are no special circumstances associated with the structure at 4 Bentley Street which are not found generally within the zoning district. Again, the Zoning Board of Appeals cannot, as a matter of law, be found to have acted arbitrarily or capriciously in denying the requested zoning relief. (citations omitted). Any suggestion by the plaintiff that the requested relief in this instance can be considered de minimis simply cannot be substantiated in this case based upon the extreme density found within the zoning district. -four- The plaintiff argues that since the building department of the city of Salem some months earlier originally issued in error a building permit for the stairway structure in question, that he should now be seen to suffer a hardship and further should obtain the benefit of the city's admitted error under an equitable theory of estoppel. However, as a matter of law the plaintiff cannot claim relief upon such a theory (citations omitted). Thus, based upon findings of fact made and rulings of law now entered by this Court supra, ruling is now entered that there are no genuine issues of material fact in this case which must be determined by a fact finder and that as a matter of law, the defendants in this case are entitled to entry Of judgment dismissing the plaintiff's complaint (Mass. R. Civ. P. 56). III. ORDER FOR ENTRY OF JUDGMENT: After full hearing upon cross summary judgment motions brought by the parties, it is now hereby ordered that the plaintiff's complaint in this matter be and is dismissed, with prejudice. All other pending claims and counterclaims brought by the parties are further ordered dismissed by the Court, with prejudice. It is further ordered that there shall be no award of costs or attorneys fees to any party in this matter. Byihe Court: ; Hon. Robert A. Cornetta Justice June 3, 2010 NB:At the time of summary judgment hearing,the plaintiff objected to the submission by the defendant Moustakis of certain affidavits.While the Court finds that the affidavits of Matthew Kelliher and Victoria Regan may be of some future evidentiary value as these non parties may seek to further resolve issues surrounding 4 Bentley Street with the plaintiff Osgood,clearly,the affidavit of one Nancy Ellis purported to be the former fiance of the plaintiff is of no evidentiary value and is therefore stricken from the record of these proceedings. Y/a a8ir" A COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT / CIVIL ACTION NO: ESCV 2006-02441�t C/ NICHOLAS OSGOOD, PLAINTIFF ) V. ) LINDA MOUSTAKIS, and BONNIE BELAIR. ) BETH DEBSKI, ANNIE HARRIS. STEPHEN ) PINTO, ROBIN STEIN, RICHARD DIONNE, and ) NINA COHEN, CHAIRPERSON, BEING ) REGULAR and ALTERNATE MEMBERS OF ) THE ZONING BOARD OF APPEAL OF THE ) CITY OF SALEM, MASSACHUSETTS, ) DEFENDANTS ) \ PARTIES' JOINT STATEMENT OF UNCONTESTED FACTS Now conte Counsel for each of the parties in the above-entitled action and hereby stipulate to the following uncontested facts: I. 4 Bentley Street, Salem, Massachusetts (hereinafter"4 Bentley Street") consists of a circa 1840's 7-bay rectangular main block of 3 stories, with a rectangular rear ell of 2 stories, which ell projects approximately 5 feet from the plane of the front (easterly) wall of the main block of the building. The structure is located side-to-street, ie. perpendicular-to Bentley Streetw-The-m ain block has a.gambrel roof, the rear ell has a slightly slanted roof sloping toward the rear" s6uth) of the property. r 2. The northerly side wall of the main block of the structure at 4 Bentley Street is located immediately on the sidewalk of Bentley Street. The rear (westerly) wall of both the main block and the rear ell are located imme ia ely onthe shared (westerly) side lot line between 4 Bentley Street and 2 Bentley Street. 3. By deed dated November 30, 1995 and recorded at Book 13304, Page 572 at the Essex South Registry of Deeds, the Plaintiff,Nicholas Osgood, purchased 4 Bentley Street for $137,250.00. At the time of said purchase, 4 Bentley Street was then being operated as a 3-family apartment building, with two internal 3-story staircases. 4. At the time of said purchase one apartment was located on the first floor of the main block and rear ell of said structure, one apartment was located on the second floor of the main block and rear ell of said structure, and the third apartment was located under the gambrel roof on the third floor of the main block (only) of said structure. �. The Defendant. Linda Moustakis. has owned 2 Bentley Street, Salem. Massachusetts (hereinafter "2 Bentley Street') at all material times relevant to this proceeding. 6. Both 2 Bentley Street and 4 Bentley Street are located in a two-family (R-2) residential zoning district. 7. Following his purchase of Bentley Street, Mr. Osgood began converting the property into three condominiums, which involved retaining the internal 3-story- staircase at the main entrance of the building, servicing the upper two units, and partially retaining a second internal staircase at the secondary entrance to the building, which secondary entrance is.located three bays to the left (or south) of the main entrance in the main block of the building. 8. The second internal staircase likewise formerly served as a second means of egress for both of the upper units, but as part of his condominium conversion, Mr. Osgood removed that portion of the internal secondary,staircase between the second and third floors. 9. For the required second means of egress servicing the third floor unit in the main block of the building, Mr. Osgood built an exterior 3-story staircase at the rear of the building, plus an elevated deck and ramp running on top of the slanted roof of the rear ell, which connects to the rear wall of the third story of the main block of the building via a new and enclosed entrance, which extends above the gambrel roof line of the main block of the building. According to the Condominium Master Deed and related plans, said exterior.3-story staircase is the "exclusive use stairs unit#3." 10.On or about May 25, 2005,the Salem Building Inspector, Thomas St. Pierre, issued Building Permit No. 1006-05 to Mr. Osgood to erect said 3-story exterior staircase within 2 '/2 feet of the shared (westerly) side lot line between 2 Bentley Street and 4 Bentley Street., and within 2 feet from the rear (southerly) lot line shared with 1-5 Ugniels Street. 11.Said Building Permit did not include the elevated deck on top of the slanted roof of the 2-story rear ell, for which Mr. Osgood obtained no building permit whatsoever. 12.Mr. Osgood completed construction of the exterior 3-story staircase, and etevated ramp and roof deck, by July of 2005. 13. Said 3-story exterior staircase violates both the minimum side lot and rear setbacks provided in the R-2 zoning for that area, which setbacks are either 5 feet (for attached structures) or 10 feet (for unattached structures). This is true both with respect to the shared side lot line between 4 Bentley Street and 2 Bentley Street, and the shared rear lot line between 4 Bentley Street and 1-5 Daniels Street to the rear (south) of 4 Bentley Street. 14.Immediately following commencement of construction of the 3-story exterior staircase, Ms. Moustakis contacted both Mr. Osgood and Mr. St. Pierre and - 2 - questioned whether the exterior staircase then beim, built was permitted under the Salem Zoning Ordinance as a matter of right. 15. Between May and November of 2005 Ms. Moustakis continually sought a legal basis from Mr. St. Pierre for his initial determination that Mr. Osgood was entitled to a Building Permit for the 3-story exterior staircase in that location as a matter of right. 16. When Mr. St. Pierre had failed to respond after four months, Ms. Moustakis wrote Mr. St. Pierre a letter on September 20. 2005 which stated the following in its entirety: I am writing this letter to request the revocation of Permit 1006-05 for a staircase and deck at 4 Bentley St., Salem, MA 01970. The permit allows the staircase to be built only two feet two and one-half inches from my property and fence line and is an invasion of my privacy and a devaluation of my property. It is also in violation of the state building code 780 (M12 1014.12.1) which states that staircases and structure shall be ten feet away from the property lines. I request an answer in writing that there is another law that contradicts the code. 17.On November 22, 2005 Mr. St. Pierre wrote Mr. Osgood a letter revoking the Building Permit for the 3-story staircase that by then had already been built, which letter included the following in relevant part: You are directed to correct this zoning violat" within 60 days upon receipt of this notice. Your right to appeal is to the Salem Zoning Board of Appeals. If you wish to discuss this matter, please contact me directly. 18.By deed dated November 30, 2005 and recorded at 12:07 p.m. at Book 25131, Page 404 at the Essex South Registry of Deeds the same day, Mr. Osgood sold Unit#2, consisting of the second floor of the main block of the building and the second floor of the rear ell (exclusive of common areas)to Victoria Regan for$235,000.00. 19.According to the Condominium Master Deed for 4 Bentley Street, said Unit#2 consists of"an undivided 38%percent in the common areas and facilities (as described in the Master Deed) of the Condominium." Ms. Regan likewise continues to own and reside in Unit#2. 20.By deed dated November 30, 2005 and recorded at 3:53 p.m. at Book 25136, Page 204 at the Essex South Registry of Deeds the same day, Mr. Osgood sold Unit #1. consisting of the first floor of the main block of the building and the first floor of the rear ell (exclusive of common areas) to Matthew Kelleher for $239,000.00. 21.According to the Condominium Master Deed for 4 Bentley Street, Unit 91 consists of "an undivided 38%percent in the common areas and facilities (as described in the Master Deed) of the Condominium." Mr. Kelleher continues to own and reside in Unit #1. 22.Both Ms. Regan and Mr. Kelleher claim that no one informed them of the zoning issue concerning the exterior staircase prior to the November 30, 2005 sales of both Unit 91 and Unit 42, and that they were completely unaware of same prior to said sales. 23.Matthew Kelleher has retained attorney Geoffrey DuBosque of Newburyport, Massachusetts and has filed a 93A action against Nicholas Osgood in the Essex Superior Court entitled Matthew Kelleher v. Nicholas Osgood, Essex Superior Court Civil Action No. ESCV 2009-0998. 24.Victoria Regan has retained attorney Steven Berlin of Newburyport, Massachusetts and has filed a 93A action against Nicholas Osgood in the Essex Superior Court entitled Victoria Regan v. Nicholas Osgood, Essex Superior Court Civil Action No. ESCV 2009-0999. 25.Mr. Osgood continues to own Unit #3, and has a 24% interest in said common areas and decision-making concerning the property. 26.On March 24, 2006, approximately 94 days following Mr. St. Pierre's November 22, 2005 letter to Mr. Osgood to remove the illegal staircase within 60 days, Mr. Osgood filed an application for a variance to retain said staircase as built. 27.In the spring of 2006 Ms. Moustakis retained Attorney John H. Carr, Jr. of Salem, Massachusetts to represent her in opposing Mr. Osgood's petition for said variance. 28.On April 19, 2006 Mr. Carr filed a letter via Ms. Moustakis with the Salem Zoning — Board of Appeals at the initial hea�rng on Mr. Osgood's petition for a variance. Said -- letter not only challenged whether Mr. Osgood was entitled to a variance as a matter of law for the staircase, he also challenged whether 4 Bentley Street is in fact a legal 3-family dwelling. 29.In support of said contentions, Mr. Carr cited the following facts which have never been contested by Mr. Osgood, a. On November 12, 1993, Salem's then Building Inspector, Leo Tremblay, wrote an enforcement letter to the then owner of 4 Bentley Street which recited the following in relevant part: - 4 - II "Chis office has learned you are trying to rent a third floor apartment at the above reference address. The records in this department show this property to be a two family dwelling in a Residential Two Family District (R-2). To allow use as more than two family would require a variance frau the City of Salem Zoning Board of Appeals. b. This letter was followed approximately two weeks later by Mr. Tremblay's November 29, 1993 letter to the then owner of 4 Bentley Street, which recited the following in relevant part: i We have been informed that you have rented a third floor apartment in the above referenced property. You were told by this department in a letter dated November 12, 1993 that you could not have a third unit there, that this property, according to our records, is only a two family dwelling, and it would require Board of Appeal action to increase the use. You have evidently chose to ignore my letter. You are hereby ordered to cease and desist all illegal use of the property and to contact this office upon receipt of this notice to advise use of your intentions. Failure to comply will result in the appropriate legal action being taken. c. Notwithstanding said letters, on December 21, 1993, less than one month after his November 29, 1993 letter, Mr. Tremblay signed a statement on the field card for 4 Bentley Street that read"Determined to be a lawful three (3) family dwelling as per the Zoning Enforcement Officer:" opposite his signature. There is no explanation for the change on the field card or among the Salem Building-Department=records for 4 Bentley Street.- At the same time theme=--- in the field card listing "No.Of Families"was obviously altered by hand from r "T'to "3." d. The separately-published Salem City Voting Lists and Salem City Directories show the following for 4 Bentley Street for tt—ie years 1960-1966 inclusive: Voting Lists City Directory 1960 Richard Audrey Florence Doran Florence Doran 1961 Richard Audrey Florence Doran Florence Doran 1962 Richard Audrey Directory Missing Vacant 1963 Edward &Anna Lassiter William Wilson William & Faye Wilson 1964 Douglas & Susan Call Douglas Call William & Faye Wilson William Wilson . 1965 Douglas & Susan Call Douglas Call Doris & Ronald Jalbert Ronald Jalbert 1966 Helen Borowski Helen Borowski Edward & Anna Lassiter Edward Lassiter 30. Mr. Osgood's March 24, 2006 petition fora variance to retain the staircase was first heard by the Salem ZBA on April 19, 2006, and was subsequently continued to July 19, 2006, September 20, 2006, and October 18, 2006. 31.On July 18, 2006 Mr. Carr wrote Salem Building Inspector Thomas St. Pierre a letter enclosing seven (7) originally-executed swom Affidavits from Anna Gayton, Marianne Bick, Stanley Doran, Jennie Bartnicki, Bernard Bartnicki, William Wilson, and Sandra J. Baldwin, all of which were based on the first-hand knowledge and experience of the affiants. All of said Affidavits disputed that 4 Bentley Street was in fact a 3-family dwelling as of the creation of the current R-2 zoning for the neighborhood in 1965, each stating instead that said property was in fact then being used as a 2-family dwelling. 32.The continued hearing on Mr. Osgood's petition for a variance to retain the exterior staircase was held by the Salem ZBA on July 19, 2006. At said hearing attorney Wysor filed a Memorandum of Law on both issues in behalf of Mr. Osgood, and served.a copy_ofsame on-Mr. Caw-fer.the first time. Inorderto give Mr; Carr a --- •^� reasonable opportunity to respond, the ZBA hearing on Mr. Osgood's petition was continued by agreement to September.20, 2006. 33.On August 15, 2006 Mr. Carr filed an opposing Memorandum of Law, in addition to _. --the seven previously-filed Affidavits from people wed either lived in the building or in the immediate neighborhood in 1965, all of whom testified that the building was only a 2-family dwelling as of the enactment of the Salem Zoning Ordinance in 1965. 34.On August 31, 2005 Mr. St. Pierre wrote Mr. Carr in response to the latter's complaint that 4 Bentley Street was not a legally-grandfathered 3-family dwelling, stating the following in relevant part: I have reviewed the information regarding the legal status of 4 Bentley Street. It is my opinion that 4 Bentley Street is a 3-family dwelling. It is my understanding that the third unit it protected from - 6 - any action by the City due to the provisions of Mass General Law 40.A, Section 7. 35.On September 12, 2006 Mr. Carr timely appealed Ms. Moustakis' appeal of Mr. St. Pierre's August 31. 2006 Determination to the Salem ZBA. 36.The September 20,2006 continued hearing on Mr. Osgood's petition for a variance was further continued by agreement to October 18, 2006 so that both matters could be heard at the same time. 37.On October 18, 2006 the Salem ZBA unanimously voted to deny Mr. Osgood's petition for a variance to retain the free-standing, exterior 3-story staircase, which resulted in a November 20, 2006 formal Decision which was entered in the office of the Salem City Clerk on November 22, 2006. 38.Also October 18, 2006 the Salem ZBA voted 3 to 1 to uphold Mr. St. Pierre's August 31, 2006 Determination, which resulted in a November 27, 2006 formal Decision which was entered in the office of the Salem City Clerk on November 29, 2006. 39.On December 12, 2006 Ms. Moustakis filed a timely appeal of the November 20, 2006 Decision on Mr. Osgood's petition for a variance based on a possible ambiguity (through the use of a double negative in a particular sentence) in the Decision that might possibly allow for an interpretation that the Board had in fact voted to approve Mr. Osgood's requested variance on October 18, 2006. Said action was entitled Linda Moustakis v. Nicholas Osgood, et. al., Essex Superior Court Civil Action No. 2006-2343C. 40.On December 7, 2006 the Salem ZBA issued an Amended Decision making it clear that the Salem ZBA had in fact denied Mr. Osgood's petition for a variance relative to the 3-story exterior staircase. 17. 41.On December 19, 2006 Ms. Moustakis filed a timely appeal of the November 27, 2006 formal Decision of the Salem ZBA upholding Mr. St. Pierre's August 31, 2006 Determi atton that 4 Bentley Street is a legal 3-family dwelling_based-on the statute ofiimitations having expired for challenging the 3-family use in an action entitled Linda Moustakis v. Nicholas Osgood, et. al., Essex Superior Court Civil Action No. 2006-2399C. 42.On December 27, 2006 Mr. Osgood filed his within Complaint appealing said December 7, 2006 Amended Decision with the Essex Superior Court. 43.On March 6, 2009 Mr. Osgood filed a Motion For Summary Judgment and related papers (including an opposition of Linda Moustakis) relative to Ms. Moustakis' Civil Action no. 2006-2399C. The sole basis for said Motion For Summary Judgment was that Ms. Moustakis' action was barred by the 6-year statute of limitations in M.G.L. Chapter 40A, Section 7. 7 44.On October 19, 2009 this Court (Lu, J.) allowed Mr. Osgood's Motion For Summary Judgment. In footnote no. 2 on pages 1-2 of said decision, Judge Lu wrote the following in its entirety: The Bruno court also held that the limitations period of G.L.c. 40A; § 7 does not render a prior unlawful use made pursuant to a, building permit lawful. Bruno, 62 Mass. App. Ct. at 536. It went on to note that "the Legislature expressly provided for the relief to be accorded for unlawful uses commenced pursuant to an original building permit, viz., a limitation on the time during which others might initiate judicial proceedings to enforce zoning regulations. Were we to construe [the requirements] of[G.L.c. 40A,] § 6 as applying to uses protected form enforcement by § 7, we would impermissibly augment the extent of that relief." Id. at 537. In light of this dicta, and because G.L.c. 40A, § 7 operates to bar Ms. Moustakis's underlying enforcement action, it is unnecessary for the court to determine whether the Building Commissioner's determination that the property is a lawful three-family dwelling was error. 45.An enforcement action brought by Salem Building Inspector Thomas St. Pierre against Mr. Osgood in the Salem District Court to compel the removal of the existing 3-story staircase has been put on hold pending resolution of this action. 46.At no time has Mr. Osgood submitted any evidence that 4 Bentley Street was not a 2- family dwelling as of the enactment of the Salem Zoning Ordinance in 1965. 47.At no time has the Salem ZBA granted a variance regarding said 3-family use at 4 Bentley Street. 48.Pursuant to the Master Deed and related plans for 4 Bentley Street, both Unit#1 and Unit#2 each has 2 dedicated parking spaces and individual dedicated outdoor spaces. Unit#3 has neither. Signed this 10'h day of March 2010 N' ola sgood, Salem Board of Appeals, Linda Moustakis, By his omey, B their attorney, racy, C,, � Philip C. Wysor J ld A. Parise a John H. Carr, Jr , Esq. Glovsky & Glovsky Alexander& Femino 9 North Stree 8 Washington Street One School Street 1970 Beverly, MA 01935 Beverly, MA 01915 978-825-0060 978-720-3112 978-921-1990 BB04 075281 BB045360000 BBO # 636416 - 8 - AkC- Certificate Number: B-16-35 Permit Number: B-16-35 Commonwealth of Massachusetts City of Salem This is to Certify that the Multifamily 3+ Building located at ................................................................. .................. ........................................................................ Building Type ..........................................................................6 BENTLEY STREET.......................................................................... in the .....................................Czty...of Salem ..................................... . !qT ....I............................... Address Town/City Name IS HEREBY GRANTED A PERMANENT CERTIFICATE OF OCCUPANCY Unit #1 BEACON UNDERWOOD This Permit is granted in conformity with the Statutes and Ordinances relating thereto, and expires ...............................Not Applicable unless sooner suspended or revoked. Eviration Date Issued On: Wednesday, September 14, 2016 J/�? Certificate Number: B-16-35 Permit Number: B-16-35 Commonwealth of Massachusetts City of Salem This is to Certify that the Multifamily 3+ Building located at Building Type ..........................................................................6 BENTLEY STREET.......................................................................... in the .....................................CttY..2 Salem ................................................. Address Town/City Name IS HEREBY GRANTED A PERMANENT CERTIFICATE OF OCCUPANCY Unit #2 BEACON UNDERWOOD This Permit is granted in conformity with the Statutes and Ordinances relating thereto, and expires ...............................Not Applicable unless sooner suspended or revoked. Expiration Date Issued On: Wednesday, September 14, 2016 Certificate Number: B-16-35 Permit Number: B-16-35 Commonwealth of Massachusetts City of Salem This is to Certify that the Multifamily 3+ Building located at ...................................................................... ..... .. ............................................................... Building Type ..........................................................................6 BENTLEY STREET.......................................................................... in the .....................................City.of Salem ................................................. Address Town/City Name IS HEREBY GRANTED A PERMANENT CERTIFICATE OF OCCUPANCY Unit #3 BEACON UNDERWOOD This Permit is granted in conformity with the Statutes and Ordinances relating thereto, and expires ...............................Not Applicable unless sooner suspended or revoked. Expiration Date Issued On: Wednesday, September 14, 2016 Commonwealth of Massachusetts s s m City of Salem w q mq R� 120 Washington St,3rd Floor Salem,MA 01970(978)745-9595 x5641 ' Return card to Building Division for Certificate of Occupancy Permit 8-16-35 PERMIT T O BUILD FEE PAID:: $1$1,705.00 DATE ISSUED: 2/1/2016 This certifies that UNDERWOOD & BEACON, LLC has permission to erect, alter, or demolish a building 6 BENTLEY STREET Map/Lot: 350375-0 as follows: Repair/Replace THREE (3) NEW KITCHENS, BATHS, FURNACES; REPAIRS TO REAR PORCH. EIGHTEEN (18) NEW WINDOWS, NEW RAILINGS ON FRONT PORCH. SEND EXISTING FLOORS, PAINT Contractor Name: MATTHEW S. ROMAN DBA: ROMAN CONSTRUCTION Contractor License No: CSFA-098983 2/1/2016 Building Official Date This permit shall be deemed abandoned and invalid unless the work authorized by this permit is commenced within six months after issuance.The Building Official may grant one or more extensions not to exceed six months each upon written request. All work authorized by this permit shall conform to the approved application and the approved construction documents for which this permit has been granted. All construction,alterations and changes of use of any building and structures shall be in compliance with the local zoning by-laws and codes. This permit shall be displayed in a location clearly visible from access street or road and shall be maintained open for public inspection for the entire duration of the work until the completion of the same. The Certificate of Occupancy will not be issued until all applicable signatures by the Building and Fire Officials are provided on this permit. HIC#: 149272 'Persons contracting with unregistered contractors do not have access to the guaranty fund"(as set forth in MGL c.142A). Restrictions: Building plans are to be available on site. All Permit Cards are the property of the PROPERTY OWNER. Commonwealth of Massachusetts s City of Salem Y . _. 120 Washington St,3rd Floor Salem,MA 01970(978)745-9595 x56,1 ., Return card to Building Division for Certificate of Occupancy Structure CITY OF SALEM BUILDING PERMIT Excavation PERMIT TO BE POSTED IN THE WINDOW ` �• ` Footing INSPECTION RECORD Foundation Framing Mme- /1 Mechanical IJ Insulation INSPECTION 7: BY DATE Chimney/Smoke Chamber Final c tZ P umbing/Gas gap Rough:Plumbing i�//,<n 2�Jo-1 Ylw Rough:Gasy[`330-ty- UA� Final Electrical Service Rough Gl Fire Department Preliminary Final CT //// Health Department `(p Preliminary Final Certificate Number: B-16-35 Permit Number: B-16-35 Commonwealth of Massachusetts City of Salem This is to Certify that theMultifamily 3+ Building located at Building Type 6 BENTLEY STREET.......................................................................... in the .....................................City o ....................... ............................................ Address Town/City Name IS HEREBY GRANTED A PERMANENT CERTIFICATE OF OCCUPANCY Unit #1 BEACON UNDERWOOD This Permit is granted in conformity with the Statutes and Ordinances relating thereto, and expires ...............................Not Applicable unless sooner suspended or revoked. E)piration Date Issued On: Wednesday, September 14, 2016 Certificate Number: B-16-35 Permit Number: B-16-35 Commonwealth of Massachusetts City of Salem This is to Certify that the Multifamily 3+ Building located at ................................................................. .. ............................................................... Building Type ..........................................................................6 BENTLEY STREET.......................................................................... in the ................................-...City_of Salem ................................................. Address Town/City Name IS HEREBY GRANTED A PERMANENT CERTIFICATE OF OCCUPANCY Unit #2 BEACON UNDERWOOD This Permit is granted in conformity with the Statutes and Ordinances relating thereto, and expires ...............................Not Applicable unless sooner suspended or revoked. E)piration Date Issued On: Wednesday, September 14, 2016 Certificate Number: B-16-35 Permit Number: B-16-35 Commonwealth of Massachusetts City of Salem This is to Certify that the .Multifamily 3+ Building located at Building Type ..........................................................................6 BENTLEYSTREET.......................................................................... in the .....................................City of Salem ..................................... ................................................. Address Town/City Name IS HEREBY GRANTED A PERMANENT CERTIFICATE OF OCCUPANCY Unit #3 BEACON UNDERWOOD This Permit is granted in conformity with the Statutes and Ordinances relating thereto, and expires ...............................Not Applicable unless sooner suspended or revoked. Expiration Date Issued On: Wednesday, September 14, 2016 . NOTE: THIS PLAN IS NOT THE RESUL T OF AN INSTRUMENT SURVEY AND SHOULD NOT BE USED FOR BOUNDARY RECONSTRUCTION, ---jmmmmmmmmmmm� IT IS FOR MORTGAGE INSPECTION PURPOSES ONL Y. NlF STlJIVD[EY 42 116 - SSMALI-EY xF¢, b GOODN[UB A Wo. ss,\\I 43=i0" BENTLEY . STREET' DEED REFEHE.NCE.' 0 PLAN REFERENCE- I CERTIFY TO ",4WAe41r g%&6e G'apP MORTGAGE INSPECTION PLAN THAT THE DMELLIN �'— LOCATED ON THE 6ROUN0 AS SHOMN AND THAT IT DOES .' CONFORM TO THE DIMENSIONAL OF LAND .IN REOUIREMENTS OF THE ZONING BY-LAM OF THE CITY OF SALEM MA MITH.REGARD SALEM, MA O FRONTAGE, AREA AND SETBACKS AT THE TIME OF CONSTRUCTION AND THAT THE DMELLING SHOW HEREON IS NOT LOCATED SCALE : i ' =20 ' S E c T 2 1995 MITHIN A FLOOD HAZARD ZONE AS DELINEATED LW THE MAP OF COMMUNITY NO. 250102 SALEX MASSACHUSETTS AS REVISED TO OB/05/85 BY A60VCIES OF THE FEOERAL INSURANCE ADWINISTRATION. p 20 40 60 f T H OF 444JsgC o MICHAEL �N COASTAL SURVEY FD. sovlo h #ADSWTH VILLAGE - DANYERS HOUSE N .34609„ 130 CENTRE ST. - DANVERS, MA AOF s oNr (508) 774-9450 1 9 2 o v GATEROF S ONAL LAW SURVEYOR _qy� NIL Ll 1 rL- ------------- h , J \ r � I i � II I I X91 9 x fr TXL' I i i ii I ,-! L i 1 _ 9 / �f w