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4 BENTLEY STREET - BUILDING JACKET (002) a � f Es to �� 4 % N fni a93®maral ®®®®®m® as Im ® MaGER ®® — GLOVSKY & GLOVSKY ATTORNEYS AT LAW Philip C.Wysor pwvsornelovskyx2.com Direct Dial(978)720-3112 January 5, 2007 VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED Salem Board of Appeals Attention: Nina Cohen, Chairperson 120 Washington Street, 3rd Floor Salem, MA 01970 RE: Osgood vs. Moustakis, Members of Salem Board of Appeal, et al Essex Superior Court Docket No. ESCV-2006-02441-A Dear Ms. Cohen: Enclosed pursuant to MGL Chapter 40, Section 17,please find: 1. Complaint appealing December 7, 2006 Decision of the Salem Board of Appeal filed with the Essex County Superior Court, Salem,Massachusetts on December 27, 2006; 2. Notice of Appeal filed with the Salem City Clerk on December 27, 2006; and, 3. A copy of the Tracking Order issued by the Court. Copies of the foregoing documents have also been sent to John H. Carr,Jr.,Esquire and to Jerald A. Parisella, Esquire. Vrq t yours, P ip C. ysor PCW:mfs Enclosures cc: John H. Carr,Jr., Esquire (letter only) 9 North Street Salem, MA 01970 Jerald A. Parisella,Esquire (letter only) Alexander&Femino One School Street Beverly,MA 01915 Eight Washington Street Beverly, MA 01915 Tel: 978.922.5000 Fax: 978.921.7809 copy COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. r NICHOLAS OSGOOD, FILE® IN THE SUPERIOR COURT Plaintiff, ) FOR THE COUNTY OF ESSEX DEC 2 7 2006 V. ) ,CLERK. LINDA MOUSTAKIS and BONNIE BELAIR, ) CLERK BETH DEBSKI, ANNIE HARRIS, STEPHEN ) ` PINTO, ROBIN STEIN, RICHARD DIONNE, ) v And NINA COHEN, CHAIRPERSON, BEING REGULAR and ALTERNATE MEMBERS OF THE ZONING BOARD OF APPEAL OF THE CITY OF SALEM, MASSACHUSETTS, ) Defendants. ) COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A SECTION 17 APPEALING DECEMBER 7 2006 DECISION OF THE SALEM BOARD OF APPEAL DENYING PETITION OF NICHOLAS OSGOOD REQUESTING A VARIANCE FROM SIDE YARD SETBACK TO ALLOW CONSTRUCTION OF EXTERIOR STAIR AT 4 BENTLEY STREET SALEM, MASSACHUSETTS IN AN R-2 DISTRICT This is an appeal from an Amended Decision of the Zoning Board of Appeal of Salem, Massachusetts (hereinafter"the ZBA" or"the Board"), dated December 7, 2006 and filed with the Salem City Clerk on December 7, 2006, denying Plaintiff's petition requesting a variance from side yard setback to allow construction of an exterior stairway at 4 Bentley Street, Salem, Massachusetts in an R-2 district. A certified copy of the said December 7, 2006 Decision is attached hereto as Exhibit A. PARTIES I. Plaintiff, Nicholas Osgood (hereinafter"Mr. Osgood") owns and resides at 4 Bentley Street, Unit 3, Salem, Massachusetts, 01970, which is the subject property. 2. Defendant Linda Moustakis (hereinafter"Ms. Moustakis") is the owner of 2 Bentley Street, Salem, Massachusetts, 01970, which abuts 4 Bentley Street. 3. Defendant Nina Cohen (hereinafter"Ms. Cohen"), who resides at 22 Chestnut Street, Salem, Massachusetts, 01970, is the Chairperson of the Salem Board of Appeal. She voted to deny Mr. Osgood's petition for a variance to construct an exterior stairway at 4 Bentley Street. 4. Defendant Richard Dionne (hereinafter"Mr. Dionne"), who resides at 23 Gardner Street, Salem, Massachusetts, 01970, is a regular member of the Salem ZBA. He voted to deny Mr. Osgood's petition for a variance to construct an exterior stairway at 4 Bentley Street. 5. Defendant Stephen Pinto (hereinafter "Mr. Pinto"), who resides at 55 Columbus Avenue, Salem, Massachusetts, 01970, is a regular member of the Salem ZBA. He voted to deny Mr. Osgood's petition for a variance to construct an exterior stairway at 4 Bentley Street. 6. Defendant Robin Stein (hereinafter "Ms. Stein"), who resides at 141 Fort Avenue, Salem, Massachusetts, 01970, is an alternate member of the Salem ZBA. She voted to deny Mr. Osgood's petition for a variance to construct an exterior stairway at 4 Bentley Street. -2- T Defendant Bonnie Belair(hereinafter "Ms. Belau"), whose mailing address is P.O. Box 685, Salem, Massachusetts, 01970, is a regular member of the Salem ZBA. She was absent at the October 18, 2006 ZBA hearing. (This is the only address available from the Salem ZBA.) 8. Defendant Beth Debski (hereinafter "Ms. Debski"), who resides at 43 Calumet Street, Salem, Massachusetts, 01970, is an alternate member of the Salem ZBA. She did not vote at the October 18, 2006 ZBA hearing. 9. Defendant Annie Harris (hereinafter "Ms. Harris"), who resides at 28 Chestnut Street, Salem, Massachusetts, 01970, is a regular member of the Salem ZBA. She was absent at the October 18, 2006 ZBA hearing. 10. The Plaintiff has standing to bring this action, as he was the original petitioner named in the decision of the Salem ZBA, and thus is a "person aggrieved" under M.G_L. c. 40, Section 17. JURISDICTION 11. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the Massachusetts General Laws. 12. This case is timely, as it has been filed within twenty (20) days from December 7, 2006, which is when the ZBA's December 7, 2006 Decision was filed with the Salem City Clerk. PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS 13. Mr. Osgood purchased the property at 4 Bentley Street in 1995. 14. From 1995 until the present day, Mr. Osgood has operated the property as a three-family dwelling. -3- 15. In February of 1997, Mr. Osgood applied for and received Building Permit No. 97-97 from the City of Salem Building Inspector to renovate the third-floor apartment at 4 Bentley Street. 16. In May of 1997, Mr. Osgood received an Occupancy Permit specific to Building Permit No. 97-97, allowing the continued occupancy of the third-floor apartment. Mr. Osgood has had a tenant or owner occupying the third-floor unit ever since. 17. In May 2005, Mr. Osgood applied for an received a building permit to construct a roof deck and an exterior staircase to allow egress from the third floor. 18. In applying for the building permit, Mr. Osgood submitted a sketch showing that the proposed stairway would extent to within three (Y) feet of the rear property line and would not be in compliance with rear setback requirements of the Zoning Ordinance. The Building Department understood that the dimensional requirements of the zoning code were superseded by Building Code and fire safety requirements, and for that reason the permit was issued without the granting of a zoning variance. 19. In May 2005, construction of the stair commenced. A neighbor, Linda Moustakis of 2 Bentley Street, immediately objected, on the grounds that the structure was too close to the property line and did not meet zoning requirements. She requested that the Building Department demonstrate their basis for setting aside zoning considerations. 20. In November 2005, Mr. Osgood converted the property at 4 Bentley Street to a three-unit condominium, sold two units and retained the third floor unit for himself. -4- 21. Mr. Osgood filed a Petition for a Variance from the decision of the Building Inspector requesting the Board of Appeal to permit him to construct the exterior stairway within the five-foot setback required by the Salem By-Law. The case was heard for the first time on April 19, 2006, after which it was continued twice and was finally heard on October 18, 2006, with the ZBA voting 4-0 to deny the Petition. 22. Defendant, Linda Moustakis, also filed a petition requesting an Administrative Appeal from a non-conforming use determination by the Building Inspector relating to at 4 Bentley Street. 23. That Petition was denied 4-0 by the Salem ZBA, which had the effect of upholding the decision by the Salem Building Inspector that 4 Bentley Street constitutes a valid three-family dwelling pursuant to M_G.L. c. 40, Section 7. (See Exhibit B attached.) COUNT Hardship 24. The Plaintiff repeats, realleges and reavers each and every allegation set forth in Paragraphs 1-23 above as if fully set forth herein. 25. The Salem Zoning Board should have found that owing to the circumstances relating to the land and structures and especially affecting such land and structures and not affecting generally the Zoning district where 4 Bentley Street is located that a literal enforcement of the provisions of the By-Law would involve substantial hardship, both financial and otherwise, to the Petitioner. -5- COUNT 11 Detriment to Public Good 26. The Plaintiff repeats, realleges and reavers each and every allegation set forth in Paragraphs 1-23 above as if fully set forth herein. 27. The relief requested by the Petitioner may be granted without substantial detriment to the public good. COUNT III Intent and Purpose of By-Law 28. The Plaintiff repeats, realleges and reavers each and every allegation set forth in Paragraphs 1-23 above as if fully set forth herein. 29. The relief requested by the Petitioner will not nullify or substantially derogate fiom the intent and purpose of the By-Law. -6- RELIEF SOUGHT The Plaintiff respectfully requests that this Court: a. Find for the Plaintiff on Counts I, II and Ill. b. Enter judgment in the Plaintiff's favor by overturning the December 7, 2006 Decision by the Salem ZBA which denied Mr. Osgood's Petition for a Variance. C. Award Plaintiff his costs and reasonable attorney's fees. d. Grant such other and further relief as the Court may deem just and appropriate. Respectfully submitted, NICHOLAS OSGOOD By his jG;7ney, 1 Philip C1 Wysor, Esq. I Glovsky & Glovsky 8 Washington Street Beverly, MA 01915 (978) 720-3112 BBO No. 5360000 Dated: December 27, 2006 -7- EXHIBIT " A " c-I.-C MIA, CITY OF SALEM `` M.ASSACI-f Y_ S ?' BOARD OP Ltapigg9-UFFICL Z n 120 WASHINGTON STREET. 3RD FLOOR f p' SALEM. MASSACHUSETTS 01970 W�P't4Y TELEPHONE: 978-745-9595 FAX: 978; f1p;�$4 KIMBERLEY DRISCOLL P .32 MAYOR December 7, 2006 City of Salem Zoning Board of Appeal Decision — Amended Petition of Nicholas Osgood requesting a Variance From Side Yard Setback to Allow Construction of Exterior Stair at 4 Bentley St. (R-2 District) A public hearing on the above petition was opened at the April 19, 2006 meeting of the Zoning Board pursuant to Mass General Law Ch. 40A, Sec. 11, and was continued until the October 18, 2006 meeting. The following Zoning Board members were present: Beth Debski, Nina Cohen, Richard Dionne, Steve Pinto and Robin Stein The petitioner Nicholas Osgood requests a variance pursuant to section 9-5 to allow the construction of an exterior stairway at the existing dwelling at 4 Bentley Street in the two-family zoning district. The Board of Appeal, after careful consideration of the evidence presented at the public hearing, and after thorough review of the Plans and Petition submitted, makes the following findings of fact: I. Petitioner Nick Osgood purchased the property at 4 Bentley St, a three-story residence, in 1995. 2. In May 2005 Mr. Osgood applied for and received a building permit to construct a roof deck and an exterior staircase to allow egress from the third floor. 3. In applying for the building permit, Mr. Osgood submitted sketched showing that the proposed stairway would extend to within three feet of the rear property line and would not be in compliance with rear setback requirements of the Zoning 3 Ordinance. The Building Department understood that the dimensional requirements of the zoning code were superseded by Building Code and fire safety requirements, and for that reason the permit was issued without the granting of a zoning variance. 4. In May construction of the stair commenced. A neighbor, Linda Moustakis of 2 Bentley St., immediately objected, on the grounds that the structure was too close �r:3 to the property line and did not meet zoning requirements. She requested that the Building Department demonstrate their basis for setting aside zoning XHrJtic � considerations. She further pointed out that no variance would be required if the egress stairway were sited on the driveway side of the house. 5. On November 22, 2005 the Building Commissioner informed Mr. Osgood that the building permit granting permission to construct the stair was not validly issued and directed him to correct the zoning violation within 60 days of receipt of the notice. See Letter of Thomas St. Pierre,Zoning Enforcement Officer, dated November 22,2005, incorporated by reference herein. 6. On information and belief,Mr. Osgood did not comply with the Building Commissioner's directive. In late 2005, Mr. Osgood converted the property to a condominium association and filed a Master Deed and-Deelaratioe of Trust:- 7. On November 30, 2005 Mr. Osgood conveyed the second floor condominium to Victoria Regan. 8. Mr. Osgood's request to build a roof deck was not part of the original building permit since there was no roof deck shown on the sketches submitted to the Building Department. The Building Department has asked the petitioner to remove any portion of the roof deck that was completed, and, upon information and belief he has done so. This petition does not include a request for a variance to allow a roof deck. 9. At the public meeting,Ms. Moustakis and her attorney John Carr spoke in opposition to the proposed variance, on the grounds that the exterior stair was too large and deprived her of privacy in the enjoyment of her property. Also speaking in opposition to the stair were neighbors Robert Wilde of 5 Daniels St. and Kate Gill of the Daniels House Inn. 10. Also speaking in opposition were City Councilors Lucy Corchado, representing Ward 1, and Lenny O'Leary, Ward 4 representative and a friend of the abutter. On the basis of,he above findings of fact, including all evidence presented at the public hearing, including, but not limited to, the Petition and detailed plans, the Zoning Board of Appeals concludes as follows: 1. The petitioner's request for a variance to construct an exterior stair within 2.5 ft of the rear property line constitutes a substantial detriment to the public good. 2. The proposed expansion does nullify or substantially derogate from the intent or purpose of the zoning ordinance. 3. In permitting such change, the Board of Appeals requires certain appropriate conditions and safeguards as noted below. In consideration of the above, the Salem Board of Appeals voted, four (4) opposed (Cohen,Dionne, Stein and Pinto) and none (0) in favor, to approve the request for a variance, subject to the following terms,conditions, and safeguards: 1. Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner. - -- ------- 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner shall obtain a building permit prior to beginning any construction. 5. Exterior finishes of the new construction shall be in harmony with the existing structure. 6. A Certificate of Inspection is to be obtained. 7. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board. 7", e't')'z-A &<-" Nina Cohen, Chair Salem Zoning Board of Appeal �� H� oNDIrA� CITY OF SALEM9 MASSACHUSETTS y BOARD OF APPEAL `^ 120 WASHINGTON STREET. 3RD FLOOR T - SALEM. MASSACHUSETTS 01970 o� TELEPHONE: 978-745-9595 FAX: 976-740-9846 KIMBERLEY DRISCOLL MAYOR November 27, 2006 City of Salem Zoning Board of Appeal 0 Decision Petition of Linda Moustakis requesting Administrative Appeal From 9 Nonconforming Use Determination at 4 Bentley St. (R-2 District) A public hearing on the above petition was opened on October 18, 2006 at a meeting of y the Zoning Board pursuant to Mass General Law Ch. 40A, Sec. 11. The following C� Zoning Board members and associate members were present: Beth Debski, Nina Cohen, Richard Dionne, Steve Pinto and Robin Stein. The petitioner Linda Moustakis of 2 Bentley St. sought to appeal, pursuant to Section 9- 2(e) of the Zoning Ordinance, a determination by the Building Commissioner that the dwelling at 4 Bentley Street is an existing nonconforming three-family dwelling. This determination was made in an August 31, 2006 letter from Thomas St. Pierre, Zoning Enforcement Officer and Building Commissioner, to Attorney John H. Carr Jr., who represents Ms. Moustakis, a copy of which is attached to this decision and incorporated by reference herein. Appeal of a determination by the Building Commissioner is according to Section 9-2 (e) of the City of Salem Zoning Ordinance, which states: (e)The concurring vote of four(4) of the members of the board of appeals shall be necessary to reverse any order or decision of the inspector of buildings or to $ l decide in favor of the applicant on any matter upon which it is required to pass tl. under this ordinance or to effect any variation in the application of this ordinancem�7 The Board of Appeal, after careful consideration of the evidence presented at the public hearing makes the following findings of fact: - :v 1. Petitioner Linda Moustakis has owned and resided at 2 Bentley St. since 1996. ' 2. In May 2005 the owner of the abutting property at 4 Bentley St. obtained a 'y building permit and began construction of an exterior stair to the third floor, with the intention of converting the property to three condominiums. 3. Ms. Moustakis objected to the granting of the building permit on the grounds that the dwelling was a two-family dwelling and was located in an R-2 (two-family) 6 X0 kr kl district. She also objected to the location of the exterior stair within three feet of the property line, asserting that the dimensional setback had not been observed. 4. In April 2006 Nick Osgood, the owner of 4 Bentley St., applied to the Zoning Board of Appeal for a variance to allow the exterior stair to be built within the rear yard setback. When the matter came for a hearing, Ms. Moustakis raised the issue of whether the dwelling was a legal three-family dwelling? The matter was continued, and attorneys for both parties filed briefs with the City of Salem, which were sent to the members of the Zoning Board of Appeal. 5. In July Ms. Moustakis submitted affidavits concerning the prior use of the dwelling from former residents Stanley Doran, William Wilson, Marianne Bick, Bernard Bartnicki, Jennie Bartnicki and Sandra Baldwin. These affidavits are incorporated by reference herein as Exhibit A. 6. On August 31, 2006 the Building Commissioner determined that the three-family use was "protected from any action by the City due to the provision of M.G.L. c.40A, Section 7." See Letter of Thomas St. Pierre, August 31, 2006, attached as Exhibit B. 7. In October 2006 the Board of Appeal sought an opinion from the City Solicitor with respect to the Building Commissioner's determination, and this opinion was received at the public meeting on October 18, 2006. The Opinion of the City Solicitor, dated October 18, 2006, is attached and incorporated by reference herein as Exhibit C. 8. At the public meeting, attorneys for both parties presented argument. On the basis of the above findings of fact, including all evidence presented at the public hearing and evidence submitted prior to it, the Zoning Board of Appeals concludes as follows: The request for appeal from the Building Commissioner's determination of August 31, 2006 is denied. In consideration of the above, the Salem Board of Appeals voted, four(4) opposed (Cohen, Dionne, Harris and Pinto) and none (0) in favor, to deny the request for administrative appeal. Nina Cohen, Chairman Salem Zoning Board of Appeal QmLer18, 2006 Pag 2 there must have been a building permit the permit must have been issued by"a person duly authorized to issue such permits.- and, ermits;'. the real .must have �rdance withtheterms of the originalabudding ppe%�,> and used in Even if a building inspector 'interprets issues a budding permit+ a ► rP �l uthe zoning ordinance or bylaw and aggneved arty has only six years to Erle a claim for relief. Bally. Pro "ncremm� S6 Mass-App.CL 1103 (2002); PGSOtLs Nnr�}S Tnc- V A�rnhnli T ' �� r' Umonirn 385 Mass.205 (1982). In This Tenovateparr case, the budding ins issued a budding Pew in 1997 to that a ccrtifiicateo f occupancy per per: �&replace walls.- The records also note P budding was issued on May 15, 1997 for the worst done penin It appears from the same records the building inspector had determined that the premises was "a lawful three (3) family dwelling." The building is located in an Rr2 District, It is my opinion that even if the building inspector issued the building the time riod to appeal his decision has sh Pew is error, commenced at least Prior to eapired. An appeal should have been issue. P May 15, 2003 (whey the certificate of occupancy was If the Board finds that a building perm was issued by the proper individual and the Premises was ituproved and used in accordance with the Permit, then an action to annul the issuance of the building permit and/or prohibit said use is barred by the six- year stanne of limitations. C n Y OF SALEM LEGAL DEPARTMENT 97 VA40CMS V•S UKMAUAO"WM01970 'ISL•M74i959S•FAX 9M744.1479 5uwsaiRarivA9D FsQ� Memorandum for Zoning Board of Appeals To: Nna Colon,Chairperson, Zoning Board of Appeals Prom:Jerald A.Parisella, Assistant City Solicitor RE: 4 BendeyStreet October is,2oo6 You requested a legal opinion concerning the issuance of a building permit to the owner of a two-family dwelling to allow the premises to be used as a three-family dwelling. Your specific request is attached as Exhibit A of this opinion. Your request ism response to an appeal filed by Linda Moustalds of 2 Bentley Street. She is appealing the determination of the building commissioner that the use of 4 Bentley Street as a three-family home is protected by the statute of I'nmaarions in General Laws Chapter 40A sec. 7 (the building comm issionees letter is Exhibit B). Chapter 40A sec. 7 governs the issuance of building permits.The statute gives the building inspector the aurhorityto issue a building permit.When issuing a building permit,the budding inspector must determine if the proposed use meets the zoning requirements of the locus. 'Ilene is no requirement for notice or a hearing for the issuance of a budding permit„ Chapter 40A sec. 7 creates a six year statute of limitations period w challenge that a buildingp�emit was issued in error.In order to obtain the protection of the six year statute of limitations: CITY OF SALtMNj, MA$ZACNUStTTs PUBLIC PpOPtRTY OMPARTMENT 1 ZO WA6MNRTON S-ME<T. 340 IfLODp SALM MAs"cHusw rs O 1970 TU"HON& 07674&9595 EXT. 380 K�sEp�T �ttt<OLL FAX:1 970-740.9ea6 aaAYOR August 31, 2006 Johp H.Carr Jr., Esquire 9 Nosth Street Salem,Ma.01970 RE, 4 Begley Street Dar hft Carr; I have reviewed the k&walatlon mlsrding the legal state a of 4 B Opigion the 4 Benrley is s 3 family dvvai an Y Street. It is my protected from my action by the City d atom�is my provisions s dw'be third unit is ons of Mast General LAW 40A, If You wisb this doterrninsHon, you must file an appeal with the g Board of e 5aletn Zoning It should be noted, the issue of the ffires family at t u is not before the Board. before the Board is the exterior dock and stairway. The issue SlgcerW luum SL Pmn Zoning Bnftwoon as 01'Qeer 13uiidh*Cousmisdoner cc: rmlip Wysor, Eng. E>lsabet&fid.Solicitor Jerry pal+ella.Aasistaut Solicitor AFFIDAVIT OF SANDRA J BAI DWIN CONCFI NWO 4 DIZOIXY S'T'REET I, Sandra J.Baldwi being duly sworn,hereby swear that the following is ttue: I. 1 reside at 1 warhi &n Sheat,Salem,Massarduneft 01970. 2. - I am an office manager of the Boston Law firm of Goodwin Procter, foully Goodwin,Precast A Hoar. 3. My mother,whose maiden note was Men BarbdcK grow up in the Barmie 6=dy homestead along wild her 6 siblings,inuhtding our tmcle, Bernard Battflicld,who is also submitting an affidavit, along with his wife, Jeanie. 4. I atm intimately Familiar with 4 Bentley Sheet,Salem,Maasadtttsetts,not wtly because I grew up at 2 Bentley Street,but also because I continued to visit ram emus firiends and relatives in the n4gbborhood even ager moving out ofABeotloy Sheet in 1954. 5. I can Unequivocally stats that uOM 1963(at a minimum)4 Bearticy Street' Saline,MA had beea ooffiinuously operated as a 2-family apbtfmaot bmlding,with om apertmeat on the first floor and the otbw on the second 6. 1 now realise dW a vadmm was never obtained for 4 Bentley Street to becomo a 3-linmily property,ear was it wed as a legal 3-family propacty as of the creation of the cmrem zoning in 1965. Signed%owl oath this day of July 2006. Sandra J. Baldwin AFFIDAVIT OF JRNM BARTNICIa I.Jamie Bortdck4 being duly swum,hereby swear that the following is babe: 1. I con vady reside at 122 Lowst Street.Danvers,Nftuwhnaetts 01923 with my husband of 65 yeses,Beuwd Bartnicki. 2. Fmm the lima my husband amd I married in 1941,rmtil 1999 (approximately).we visited my sisters and brothers,who resided in the BarMiclu family homestead at 2 Bad cy Struut.Salem.Wwwhusetts, virowrlly every weekend. 3. I cam mrcoao"omally stere fiem flat-bond kwwledge that 4 Bentley Same was contibnouslyr used as a 2-finifly apartment budding from 1941 to at least 1998(at a=Wnmm),which wed of a first floor=k and a second unit on the second floor. Signed undo oath this /Al day of July 2006. Jennie Bat" rnxrFRN1NG 4] 1V Ti.Eli S1RIXf L Bernard Bamoidd,being duly swam.to reby swear that the following is true: 1. I currently reside at 122 Locust Street,Danvers,Messeohusetts 01923.arith roryr wife of 65 years,Jeanie BmWic L 2. Fmm tho tim a my wife and I married in 1941,omni 1998(vp=dmawly)6 we visited my sunt and bwthm%who resided m the Battoiaki by homestead as 2 BwJ*SUcd,Salem.Massaahuae4b1 virtually ams' weekw& 3. 1 cm wpon&UMaW sWe from&a-hand Uowicdp*w 4 DavidQY SIt'!Oet was con duwusly mod as a 2-femPY building from 1941 to at least l"S(at a minim=),which contisted of a fiord now unk and a second unit on the second floor. SiVwd under oath this f�4 day of Jnly 2006. Q.lN�tcafQ' r7ar�c�3N�aii Bernard Barinickl AMA=OF MARIANNE BILK CONCERNING 4 BE MICY STREXT 1,Marianna Hick,beim detljr swear,hereby swear that the following is trace: 1. 1 currently reside at Unit No.217 of the Chary Hill Condominium Apartments,4 Duck Pond Road,Demers,Massachusetts 01923. 2. My brothrt,Stanley Dore,sod 1 lived at the second floor,mit at 4 Bentley Street.Salem,Massacbisctft t}om 1957 to 1961 inclusive. 3. During the,-tire time aro resided at 4 Bentley Sued,the property was operated as a 2-family apartment banding. 4. fn 1%1 we moved just around the comer to 155 Derby Street,where we camdinued to reside until 1969. 5. Evm afla my brother and I moved to 155 Derby Street in t 961,we continued to be vary hmr7iar with 4 Bentley Street not only because we ware idly far! muh with the enighbothood m tial,hang grown up there,but also bocauae we bad several friends and relatives living on Bentley Strouk including out cousins,Philip and Louis Swi duck,who resided at 14 Bentley Street. 6. Daring the period 1961 tol968 inclusive,4 Heatley Street was likewise coumnuonsly operated as a 2-family apartment bunelin& 7. I am not related by blood or by marriage to Linda Moustalcis of 2 Bentley St wt,Salem.Massachusetts,01970. Signed index oath this t y day of July 2006. Marianne ALA AFVM-AWr- OF NVttJJM VV1L$OPI COMM CRN M 4 BENTLEY BT;I M 1.William Wilson.being duly swom hereby swear that the following is true: 1. I currently reside it 4200 South East 470 Place,Ocala.Florida 34430. 2. During 1963 and 1964,I resided in lb wd xg apntmant at 4 Bentley Street.Salem,Massachusetts during 1 and 1964. 3. As I am 73 years old now.I was then 43 and 44 years old. 4. During my eot'ue occupancy of my first floor apartment at 4 Bentley Stied,the property was operated as a 2fimily apartment building,the ppAgo unit being thin occupied by an FAwwd Lassiter and his wifie, Armal aadt=. 5. I am not related by blood or by marriage to I inda MousraUs of 2 Bentley Street. Salem,Massachusetts,01970. Signed under oath this 0 day of July 2006. William Wilson r QFFII#AViT O>E 9Twxc.RY DORIIY cox I,Stanley Dors]%beim duly sworn,fib'swear that the f+Dllawiag is nue 1. 1 currently reside at 12 Cedat Hill Drive.Danvers,Mamawsatta+01923- 2_ My sister,Marismao Bids,and I lived at the second float mit at 4 Bentley Street, Salmi setts fnana 1957 to 1961 inclusive. 3. During the entire time we resided at 4 Bentley Street,the P"WW was operated as a 2-family anent buRduV. 4. In 1961 we moved jest woo d tbo can=to 155 Derby Straw wham we confimmd to reside%s ti11961L 5. Even a8er my Aster and I moved to 155 Derby Sheet in 1961.we comgy d to be very famrliar with 4 Bentley Street.not only because we were ktimstdy fam�liaf with.the nelobodwod in general. being lm up there,but also because we had several fDaends and velssivos living on Bentley Sfteej,and dmg our comms,Philip and Louie Swmiuch.who rosidod at 14 Hendry Street_ 6. DtaiM the period 1961 to 1968 inclusive,4 Bentley Street was likewise condnuously operated as a 2-f nily apartment budding. 7. I sea mot related by blood or by ma rriap to Linda Moustaloa of 2 Bentley Street.Salem.Massae)rmetbr,01970. Signed under oath this day of July 2006. tantry �#9pHIdi� All3i r01ani Copy GLOVSKY & GLOVSKY nrrolz� c, s ;�'r i.,\W Philip C.wysor po-rvuYn,eluvskr.c 2.cnm Direct Dial 978-720-3112 December 27, 2006 13Y HAND Salem City Clerk Un c� o;- 93 Washington Street Salem, MA 01970 CJ f Re: Osgood v. Moustakis, et al. �C Dear Madam/Sir: In connection with the above matter, enclosed for filing please: * Notice of Appeal to Essex Superior Court from December 7, 2006 Decision of Salem Board of Appeal Denying Petition of Nicholas Osgood Requesting a Variance from Side Yard Setback to Allow Construction of Exterior Stair at 4 Bentley Street, Salem, Massachusetts in an R-2 District. If you have any questions, please feel free to contact me. Thank you for your assistance in this matter. Very my yours, Philip . Wysor U PCW:jsh Enclosures cc: John H. Carr, Jr., Esq. (w/encs.) Jerald A. Parisella, Esq. (w/encs.) Light Washington Street Beverly, AIA 01915 "rel: 978.922.5000 Fax: 978.921.7809 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT . CIVIL ACTION NO�—,'� yLJ NICHOLAS OSGOOD, ) Plaintiff, ) ) V. ) c, LINDA MOUSTAKIS and BONNIE BELAIR, o - BETH DEBSKI, ANNIE HARRIS, STEPHEN ) �� PINTO, ROBIN STEIN, RICHARD DIONNE, ) And NINA COHEN, CHAIRPERSON, BEING ) REGULAR and ALTERNATE MEMBERS OF ti THE ZONING BOARD OF APPEAL OF v THE CITY OF SALEM, MASSACHUSETTS, ) =_ Defendants. ) NOTICE OF APPEAL TO ESSEX SUPERIOR COURT' FROM DECEMBER 7, 2006 DECISION OF SALEM BOARD OF APPEAL DENYING PETITION OF NICHOLAS OSGOOD REQUESTING A VARIANCE FROM SIDE YARD SETBACK TO ALLOW CONSTRUCTION OF EXTERIOR STAIR AT 4 BENTLEY STREET, SALEM, MASSACHUSETTS IN AN R-2 DISTRICT I, Philip C. Wysor, attorney for the Plaintiff in the above-entitled action, hereby give notice to the City Clerk of the City of Salem, Massachusetts and to the Salem Zoning Board of Appeal that said Plaintiff has appealed the December 7, 2006 Decision of the Salem Board of Appeal denying the Plaintiffs petition requesting a variance from side yard setback to allow construction of exterior stair at 4 Bentley Street, Salem, Massachusetts in an R-2 district. A copy of the Complaint tiled as Essex Superior Court Civil Action No. on December 27, 2006 is attached hereto. Respectfully submitted, NICHOLAS OSGOOD By his attorney, Ph ip C.Kvysor, Esq. Glovsky & Glovsky 8 Washington Street Beverly, MA 01915 (978) 720-3112 BBO No. 5360000 Dated: December 27, 2006 UUMMOnweaiin 01 Ma55acnu5eu5 County of Essex The Superior Court CIVIL DOCKET# ESCV2006-02441-A RE: Osgood v Moustakis / member of the Zoning Board of Appeal et at TO:Philip C Wysor, Esquire Glovsky & Glovsky 8 Washington Street Beverly, MA 01915 TRACKING ORDER - F TRACK You are hereby notified that this case is on the fast (F) track as per Superior Court Standing Order 1-88. The order requires that the various stages of litigation described below must be completed not later than the deadlines indicated. STAGES OF LITIGATION DEADLINE Service of process made and return filed with the Court 01/17/2007 Response to the complaint filed (also see MRCP 12) All motions under MRCP 12, 19, and 20 filed 05/26/2007 All motions under MRCP 15 filed 05/26/2007 All discovery requests and depositions completed 10/23/2007 All motions under MRCP 56 served and heard 11/22/2007 Final pre-trial conference held and firm trial date set 12/22/2007 Case disposed 02/20/2008 The final pre-trial deadline is not the scheduled date of the conference. You will be notified of that date at a later time. Counsel for plaintiff must serve this tracking order on defendant before the deadline for filing return of service. This case is assigned to session A sitting in CtRm 2 -rear (Salem) at Essex Superior Court. Dated: 12/28/2006 Thomas H. Driscoll Jr. Clerk of the Courts BY: Judith Brennan Assistant Clerk Location: CtRm 2 -rear (Salem) Telephone: (978) 744-5500 ext. 414 cvLcrac E_i.w d 670471 inidocll exerhose " ftaH ® ®®ISO ® HH ® -a __ Philip C.Wysor GLOVSKY & GLOVSKY pwvsor(ailelovsltvx2.com ^4 ATTORNEYS A T L A W Direct Dial978-720-:3112e0, 0 \\VC✓/ January 12, 2007 Civil Clerk Essex Superior Court 34 Federal Street Salem, MA 01970 RE Osgood vs. Moustakis, Members of Salem Board of Appeal, et al Essex Superior Court Docket No. ESCV-2006-02441-A Dear Madam/Sir: Enclosed for filing please find the following documents relative to the above-entitled action: 1. Notice of Service of Process; 2. Affidavit of Notice of Service of Process; and, 3. Certificate of Service. Please do not hesitate to call should you have any questions. ry tr y yours, r Philip . Wysor PCW:mfs Enclosures cc: John H. Carr, Jr., Esquire Jerald A. Parisella, Esquire Ms. Linda Moustakis Ms. Nina Cohen Mr. Richard Dionne Mr. Stephen Pinto Ms. Robin Stein Salem Board of Appeals, Attention: Nina Cohen, Chairperson Eight Washington Street Beverly, AIA 0 19 15 Tel: 978.922.5000 Fax: 978.92 1.7809 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 2006-02441-A 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. ) NOTICE OF SERVICE OF PROCESS Now comes the Plaintiff, Nicholas Osgood, in the above captioned matter and respectfully files Notice of Service of Process upon all Defendants pursuant to M.G.L. Chapter 40A, Section 17. In support the Plaintiff files the attached Affidavit of Notice. Respectfully submitted, NICHOLAS OSGOOD By ' t omey,/ Vt P ip C. sor, Esquir Glovsky & lovsky 8 Washington Street Beverly, MA 01915 (978) 720-3112 BBO No. 5360000 Dated: January 12, 2007 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 2006-02441-A 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. ) AFFIDAVIT OF NOTICE OF SERVICE OF PROCESS 1, Philip C. Wysor, attorney for the Plaintiff,Nicholas Osgood, having first been duly sworn upon oath do hereby depose and say: 1. I am an attorney licensed and in good standing in the Commonwealth of Massachusetts, and I am counsel of record for the Plaintiff,Nicholas Osgood. 2. On December 27, 2006, I filed a Complaint as captioned above with the Essex County Superior Court on behalf of Mr. Osgood appealing the December 7, 2006, Decision of the Salem Zoning Board of Appeals. 3. On December 27, 2006, I filed a Notice of Appeal, together with a copy of the Complaint with the Clerk of the City of Salem. 4. On January 5, 2007, I served written notice of the filing of the Complaint, together with a copy of such Complaint, the Notice of Appeal filed with the City Clerk and a copy of the Court's Tracking Order by certified mail, return receipt requested, to all Defendants, including the members of the Board of Appeals, all in accordance with the provisions of M.G.L. Chapter 40A, Section 17. Signed under the pains and penaM this 12`h day o January, 2007. C � Phil C. Wys r COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. On this 12th day of January, 2007, before me, the undersigned notary public, personally appeared Philip C. Wysor,proved to me through satisfactory evidence of identification, by showing me a copy of his identification, which was a Massachusetts driver's license, or personally known to me, to be the person whose name is signed on the preceding or attached document, and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of his knowledge and belief. c Mary Farley Sun quilt,Nota�' Public ' My Com sio xpS�s:�l3'0/08 MA Y FNS Y,UtIO�UIC f—j Notary Pupl o Gartman c , +rFi .-achuc-r,l+ MyGxn nExpias -2- COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 2006-02441-A 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. ) CERTIFICATE OF SERVICE I, Philip C. Wysor, do hereby certify that on this day I served caused a copy of the foregoing document to be served upon counsel of record as follows: DOCUMENT SERVED: Notice of Service of Process MANNER OF SERVICE: First Class Mail, Postage Prepaid COUNSEL OF RECORD: John H. Carr, Jr., Esquire 9 North Street Salem, MA 01970 Jerald A. Parisella, Esquire Alexander & Femino One School Street Beverly, MA 01915 Ms. Linda Moustakis 2 Bentley Street Salem, MA 01970 Ms. Nina Cohen 22 Chestnut Street Salem, MA 01970 Mr. Richard Dionne 23 Gardner Street Salem, MA 01970 Mr. Stephen Pinto 55 Columbus Avenue Salem, MA 01970 Ms. Robin Stein 141 Fort Avenue Salem, MA 01970 Salem Board of Appeals Attention: Nina Cohen, Chairperson 120 Washington Street, 3`d Floor Salem, MA 01970 Signed under the pains and penalties of perjury. t Phi C. Wy or, Esquire Glovsky & Glovsky 8 Washington Street Beverly, MA 01915 Telephone: (978) 720-3112 BBO#536000 Dated: January 12, 2007 COMMONWEALTH OF MASSACHUSETTS DING ESSEX, SS. SUPERIOR COURT ^UI 4,, SEPT. clviL ACTION Nc 0b4e 6 9 3916 g o 6 LINDA MOUSTAKIS, PLAINTIFF ) V ; r NICHOLAS OSGOOD, 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 ) NOTICE OF APPEAL TO ESSEX SUPERIOR COURT FROM NOVEMBER 27,2006 DECISION OF SALEM BOARD OF APPEAL UPHOLDING SALEM BUILDING COMMISSIONER'S AUGUST 31,2006 DETERMINATION THAT 4 BENTLEY STREET, SALEM,MASSACHUSETTS IS A LEGAL 3-FAMILY DWELLING I, John H. Carr, Jr., attorney for the Plaintiff in the above-entitled action, hereby give notice to the City Clerk of the City of Salem, Massachusetts and to the Salem Zoning Board of Appeal that said Plaintiff has appealed the November 27, 2006 Decision of the Salem Board of Appeal upholding the Salem Building Commissioner's August 31, 2006 Determination that 4 Bentley Street, Salem, Massachusetts is a legal 3-family dwelling. A copy of the Complaint filed as Essex Superior Court Civil action no. 2006-2399C on December 18,2006 is attached hereto. Linda Moustakis, By her attorney, December 19,2006 John H. Carr, ., Esq. 9 North Stree Salem,MAC 970 978-825-00 BBO#0 281 COMMONWEALTH OF MASSACHUSETTS BUILDINGYDEPI ESSEX, SS. SUPERIOR COURT D 9 I� 3 G CIVIL ACTION ft: LINDA MOUSTAKIS, ) PLAINTIFF V. ) NICHOLAS OSGOOD, 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 ) COMPLAINT PURSUANT TO M.G L CHAPTER 40A_ SECTION 17 APPEALING NOVEMBER 27,2006 DECISION OF THE SALEM BOARD OF APPEAL UPHOLDING_AUGUST 31,2006 DETERMINATION OF SALEM BUILDING COMMISSIONER THAT 4 BENTLEY STREET,SALEM MASSACHUSETTS IS A LEGAL 3-FAMILY DWELLING This is an appeal from a Decision of the Zoning Board of Appeal of Salem, Massachusetts(hereinafter"the ZBA"or"the Board"),dated November 27,2006 and filed with the Salem City Clerk on November 29,2006,upholding the Salem Building Commissioner's August 31,2006 Determination that 4 Bentley Street, Salem, Massachusetts, is a legal 3-family dwelling. A certified copy of said November 27,2006 Decision is attached hereto as Exhibit A. PARTIES 1. Plaintiff,Linda Moustakis(hereinafter"Ms. Moustakis"), owns and resides at 2 Bentley Street, Salem,Massachusetts,01970,which abuts the subject property at 4 Bentley Street, Salem,Massachusetts 01970. She initiated the complaint to the Salem Building Commissioner(hereinafter"Mr. St. Pierre"or"Zoning Enforcement Officer") challenging the existing use of 4 Bentley Street as a legal 3-family dwelling. 2. Defendant,Nicholas Osgood(hereinafter"Mr. Osgood'), is the owner of unit no. 3 at 4 Bentley Street, Salem,Massachusetts 01970 and is/was the applicant for said variance. 3. Defendant,Nina Cohen,who resides at 22 Chestnut Street, Salem,Massachusetts 01970, is the Chairperson of the Salem Board of Appeal. She voted to uphold Mr. St. Pierre's August 31,2006 Determination that 4 Bentley Street is a legal 3-family dwelling. 4. Defendant,Richard Dionne,who resides at 23 Gardner Street, Salem, Massachusetts 01970, is a regular member of the Salem ZBA. He voted to uphold Mr. St. Pierre's August 31,2006 Determination that 4 Bentley Street is a legal 3-family dwelling. 5. Defendant, Stephen Pinto(hereinafter"Mr. Pinto'),who resides at 55 Columbus Avenue, Salem,Massachusetts 01970, is a regular member of the Salem ZBA. He voted to deny Mr. St. Pierre's August 31,2006 Determination that 4 Bentley Street is a legal 3-family dwelling. 6. Defendant,Robin Stein(hereinafter"Ms. Stein"), who resides at 141 Fort Avenue, Salem, Massachusetts 01970, is an alternate member of the Salem ZBA. She voted to uphold Mr. St. Pierre's August 31, 2006 Determination that 4 Bentley Street is a legal 3- family dwelling. 7. Defendant,Bonnie Belair(hereinafter"Ms. Belair"), whose mailing address is P.O. Box 685, Salem,Massachusetts 01970, is a regular member of the Salem ZBA. She was absent at the October 18, 2006 ZBA hearing. (This is the only address available from the Salem ZBA.) 8. Defendant,Beth Debski(hereinafter"Ms. Debski"),who resides at 43 Calumet Street, Salem, Massachusetts 01970, is an alternate member of the Salem ZBA. She was absent at the October 18,2006 ZBA hearing. 9. Defendant,Annie Harris(hereinafter"Ms. Harris"),who resides at 28 Chestnut Street, Salem,Massachusetts 01970, is a regular member of the Salem ZBA. She was absent at the October 18, 2006 ZBA hearing. 10. The Plaintiff has standing to bring this action, as she is substantially aggrieved by the November 27, 2006 Decision of the Salem ZBA upholding Mr. St. Pierre's August 31, 2006 Determination that 4 Bentley Street is a legal 3-family dwelling. JURISDICTION 11. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the Massachusetts General Laws. 12. This case is timely, as it has been file\ythin twenty(20)days from November 29, 2006, 8 NKr which is when the ZBA's November ,y2006 Decision was filed with the Salem City Clerk. PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS -2 - 13. Ms. Moustakis acquired sole title to 2 Bentley Street, Salem,Massachusetts(hereinafter "2 Bentley Street")in 1996, which property is adjacent to the subject property at 4 Bentley Street. 14. At the time she acquired 2 Bentley Street in 1996,4 Bentley Street was then being operated as a 3-family dwelling, and Ms. Moustakis then had no reason to believe that the third apartment was an illegal unit. 15. Both 2 Bentley Street and 4 Bentley Street are located in an R-2 (two family)residential zoning district. 16. Mr. Osgood acquired sole title to 4 Bentley Street, Salem,Massachusetts(hereinafter"4 Bentley Street")on November 30, 1995 for$137,250.00. 17. At the present time it is unknown whether said purchase was an arms length transaction, or whether Mr. Osg od had a prior relationship with the Grantor,Anne Carey a/k/a Anne BCL C. Stunzi,Trustee 41f the 4 Bentley Street Realty Trust. 18. On or about February 24, 1997 Mr. Osgood filed an application for a building permit with the Salem Building Department relative to 4 Bentley Street. 19. Said building permit application listed Mr. Osgood's address as"4 Bentley Street,Apt. 2, Salem,MA." 20. With respect to the question"What is the purpose of building?"on said application, Mr. Osgood answered"Renovate 3`d floor Apartment." 21. With respect to the question"Will building conform to law?"on said application,Mr. Osgood answered"Yes." 22. On or about February 27, 1997 then Assistant Building Inspector John J. Jennings (hereinafter"Mr. Jennings')issued a Building Permit to C&D Construction of 42 Coolidge Road, Lynn, MA to"RENOVATE 3RD FL APT; REMOVE&REPLACE WALLS &RENOVATE BATH AS PER PLANS" relative to 4 Bentley Street. 23. Said February 27, 1997 Building Permit recited the following in bold oversized lettering: POST THIS CARD SO IT IS VISIBLE FROM STREET 24. Mr. Osgood never posted said Building Permit so that it was visible from the street, and on information and belief,Mr. Osgood never posted it at all. 25. Ms. Moustakis was also not aware that any work was then going on at 4 Bentley Street. - 3 - 26. The fust Ms. Moustakis became aware of the February 24, 1997 Building Permit and interior renovations at 4 Bentley Street was after Mr. Osgood's construction of the 3- story exterior staircase at 4 Bentley Street in May/June of 2005, as hereinafter described. 27. On or about May 25,2005 Mr. St. Pierre issued Building Permit No. 1006-05 to Mr. Osgood to erect a free-standing,3-story, exterior staircase within 2 'h feet of the shared side-lot line between 2 Bentley Street and 4 Bentley Street. 28. Mr. Osgood commenced work almost immediately and completed construction of the 3- story staircase in June of 2005. 29. Said construction also included a deck on the roof of the rear el of 4 Bentley Street, for which Mr. Osgood obtained no building permit whatsoever. 30. Said exterior staircase violated the minimum side-lot and rear setbacks provided in the existing R-2 zoning for that area,which are either 5 feet or 10 feet,depending on whether the staircase is deemed to be attached to the structure. 31. Ms. Moustakis contacted Mr. St. Pierre immediately following commencement of construction of the exterior staircase and immediately questioned whether it was permitted under the Salem Zoning Ordinance as a matter of right. 32. Between May 2005 and November 2005 Ms. Moustakis continually sought a Wiling from Mr. St. Pierre regarding whether the staircase was illegal. 33. Finally,when Mr. St. Pierre had failed to respond after four months, Ms. Moustakis wrote Mr. St. Pierre a letter on September 20, 2006 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. -4 - 34. 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 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. 35. On March 24, 2006, approximately 94 days following Mr. St. Pierre's November 22, 2006 directive to remove the illegal staircase within 60 days,Mr. Osgood filed an application for a variance to retain said staircase. 36. In the spring of 2005 Ms.Moustakis retained Attorney John H. Carr,Jr. to represent her in this matter. 37. In the course of their research Mr. Carr and Ms. Moustakis became aware that 4 Bentley go-e, Street was st being operated as a 2-family apartment building as of the enactment of the current zoning ordinance in 1965,and thus,was not a legally-grandfathered 3-family dwelling after all. 38. Mr. Osgood's March 24,2006 application for a variance to retain the staircase was first heard on April 19, 2006, and was subsequently continued to July 19,2006, September 20, 2006, and October 18,2006. 39. In the course of these proceedings Mr. Carr formally raised the issue of whether 4 Bentley Street is a legal 3-family dwelling. 40. On July 19, 2006 Mr. Wysor filed a Memorandum of Law on both issues, and on August 15, 2006 Mr. Carr filed an opposing Memorandum of Law. In addition, Mr. Carr submitted multiple affidavits from people who had 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. 41. It also came to light that 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: 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 - 5 - family would require a variance from the City of Salem Zoning Board of Appeals. 42. This letter was followed approximately two weeks later by Mr. Tremblay's November 29, 1993 letter to said owner of 4 Bentley Street,which recited the following in relevant part: 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. 43. 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. 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." 44. 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 any action by the City due to the provisions of Mass General Law 40A, Section 7. 45. On September 12, 2006 Mr. Carr timely appealed Ms. Moustakis' appeal of Mr. St. Pierre's August 31, 2006 Determination to the Salem ZBA. 6 46. October 18,2006 the Salem ZBA voted 3 to 1 to uphold Mr. St. Pierre's August 31,2006 Determination. 47. Forty days later,on November 27,2006,the Board issued its written Decision relative to said vote,which Decision was filed in the Salem City Clerk's office on November 29, 2006. 48. Apart from the issues raised in this Complaint, said November 27,2006 Decision contains a least the following 3 mistakes: a. The Decision recited that those voting on November 27,2006 included Ms. Harris,who did not even attend the October 18, 2006, ZBA hearing, and failed to include Ms. Stein who did; b. The Decision also recites that"the Salem Board of Appeals voted,four(4) opposed(Cohen,Dionne, Harris,and Pinto)and none(0)in favor..."when in fact the vote was 3 to 1,namely Mr.Pinto in the affirmative and Members Cohen, Stein,and Dionne in the negative; C. Said Decision is also incorrectly worded in the negative,namely that 4 members were opposed"to denying the request for administrative review,"whereas in actual fact, 3 members voted to oppose the grantine of said administrative appeal and one(namely Mr. Pinto)voted in favor. 49. On information and belief, in 2004 and 2005 Mr. Osgood converted 4 Bentley Street into 3 condominium units,unit 1 comprising the entire fust floor(less common center and rear staircases), unit 2 comprising the entire second floor(less common center and rear staircase),and unit 3 comprising the entire attic story(less common center staircase). coe%"f +son, ge-50. AS part of said ceUues 2--6"- ,Mr. Osgood had removed the second internal staircase to the third floor,which had necessitated the 3-story exterior staircase as a second means of egress for the third floor unit. 51. Notwithstanding Mr. St. Pierre's November 22, 2006 letter to Mr. Osgood directing him "to correct this zoning violation Cie.the 3-story exterior staircase within 60 days upon 8 receipt of this notice,Mr. Osgood conveyed unit 1 at 4 Bentley Street to Matthew Kelleher on November 30, 2006 for$239,000.00, and sold unit no. 2,also on November 30,2006,and retained ownership of unit no. 3 on the third floor, which now lacked a legal second means of egress. 52. It now appears that Mr. Osgood concedes that 4 Bentley Street was not a legally grandfathered 3-family dwelling at the time of the enactment of the Salem Zoning Ordinance in 1965, and that it was not a legal 3-family dwelling at the time he purchased said property on November 30, 1995. Instead,he rests his case entirely on the statute of limitations found in Section 7 of Chapter 40A. - 7- n 53. As to each of the following CouAts,the Plaintiff reaffirms,re-alleges, and reincorporates all of the prior allegations contained in paragraphs 1-52 inclusive above. ARGUMENT COUNTI 4 Bentley Street was never a legal 3-family dwelling 54. No owner of 4 Bentley Street ever obtained variance to allow a third residential unit at said address, which at all material times was and is located in an R-2 zoning district. 55. Neither was said third unit grandfathered as a prior non-conforming use as of the enactment of the current Salem Zoning Ordinance in 1965. 56. Although the effect may seem the same, Section 7 of Chapter 40A does not create additional legal density; it only bars a challenge to an alleged illegal use or structure, and then only under very exceptional circumstances. 57. As hereinafter described,the Plaintiff alleges that those circumstances do not exist here. 58. Thus,the Salem ZBA acted willfully and capriciously, and exceeded its authority,in denying the Plaintiff's requested relief. 59. For this reason alone, said November 27,2006 Decision should be nullified and overturned. COUNT H Ms.Moustakis had no reasonable notice of the February 24, 1997 Building Permit 60. Mr. Osgood did not post the February 24, 1997 Building Permit"so that it is visible from street,"as was required. 61. On information and belief,he never posted it in any location. 62. Neither was Ms. Moustakis aware that there was then my work going on in the building. 63. The first Ms. Moustakis became aware of the February 24, 2006 Building Permit was after construction of the 3-story staircase in May/June of 2005,which was also when she became aware of Mr. Tremblay's November 12, 1993 and November 29, 1993 enforcement letters, and the irregularities concerning the charge of the field card and the 2-fancily status of 4 Bentley Street. - 8 - 64. Had she had actual or constructive notice of said work in 1997, she would have similarly inquired and challenged same,just as she did concerning the staircase. 65. Given said circumstances,the 6-years statute of limitations never commenced. 66. Thus,the Salem ZBA acted willfully and capriciously, and exceeded its authority, in denying Plaintiff's requested relief. 67. For this reason alone, said November 27,2006 Decision should be nullified and overturned. COUNT HI The February 24, 1997 Building Permit does not protect what is otherwise an illegal third residential use 68. At all material times 4 Bentley Street was and is located in a R-2 residential zoning district. 69. No variance was ever obtained for a third residential unit;neither was said third unit in existence as of the creation of the current Salem Zoning Ordinance in 1965, and thus, it is not a prior non-conforming use. 70. The February 24, 1997 building permit application recited only that certain renovations were being made to'Td floor apartment,"ie. to an apartment on the third floor,"which does not necessarily settle the issue of density at said property. 71. Said application also incorrectly answered"Yes"in response to the question"Will building conform to law?"on said form,which was not then true. 72. Given the above circumstances,the Salem ZBA acted willfully and capriciously, and exceeded its authority, in denying Plaintiff's requested relief. 73. For the reason alone, said November 27,2006 Decision should be nullified and overturned. RELIEF SOUGHT The Plaintiff respectfully requests that this Court: a. enter a Judgment in her favor annulling in full the November 27,2006 Salem ZBA Decision upholding the Salem Building Commissioner's August 31,2006 Determination that 4 Bentley Street is a legal 3-family dwelling. b. determine that 4 Bentley Street is only a legal 2-family dwelling. -9- c. award the Plaintiff cost and reasonable attorneys fees in connection with her prosecution of this appeal; d. grant such other relief as is just and expedient. Respectfully submitted, Linda Moustakis, By her attorney, December 18,2006 John H. C Esq. 9 North Str et Salem, 01970 978-825- 60 BB 5281 - 10 - ^ . ONWT CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL 120 WASHINGTON STREET. 314o FLOOR SALEM. MASSACHUSETTS O1970 ' TELEPHONE: 978-745-9595 BUILDING DEPT. FAX: 978-740-9846 KIMBERLEY DRISCOLL 100b DEC 19 A IIS Ol MAYOR November 27, 2006 City of Salem Zoning Board of Appeal 'SN-Di f"o�' Decision G J Petition of Linda Moustakis requesting Administrative Appeal From 9 0 Nonconforming Use Determination at 4 Bentley St. (R-2 District) Q %a5 7 A public hearing on the above petition was opened on October 18, 2006 at a meeting of the Zoning Board pursuant to Mass General Law Ch. 40A, Sec. 11. The following GO Zoning Board members and associate members were present: Beth Debski,Nina Cohen, Richard Dionne, Steve Pinto and Robin Stein. The petitioner Linda Moustakis of 2 Bentley St. sought to appeal, pursuant to Section 9- 2(e)of the Zoning Ordinance, a determination by the Building Commissioner that the dwelling at 4 Bentley Street is an existing nonconforming three-family dwelling. This determination was made in an August 31, 2006 letter from Thomas St. Pierre, Zoning Enforcement Officer and Building Commissioner, to Attorney John H. Carr Jr., who represents Ms. Moustakis, a copy of which is attached to this decision and incorporated by reference herein. Appeal of a determination by the Building Commissioner is according to Section 9-2 (e) of the City of Salem Zoning Ordinance, which states: (e)The concurring vote of four(4) of the members of the board of appeals shall be necessary to reverse any order or decision of the inspector of buildings or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance or to effect any variation in the application of this ordinance. The Board of Appeal, after careful consideration of the evidence presented at the public hearing makes the following findings of fact: 1. Petitioner Linda Moustakis has owned and resided at 2 Bentley St. since 1996. 2. In May 2005 the owner of the abutting property at 4 Bentley St. obtained a building permit and began construction of an exterior stair to the third floor, with the intention of converting the property to three condominiums. 3. Ms. Moustakis objected to the granting of the building permit on the grounds that the dwelling was a two-family dwelling and was located in an R-2 (two-family) SALEM,[AASS. district. She also objected to the location of the exterior stair within three feet of the property line, asserting that the dimensional setback had not been observed. 4. In April 2006 Nick Osgood, the owner of 4 Bentley St., applied to the Zoning Board of Appeal for a variance to allow the exterior stair to be built within the rear yard setback. When the matter came for a hearing, Ms. Moustakis raised the issue of whether the dwelling was a legal three-family dwelling? The matter was continued, and attorneys for both parties filed briefs with the City of Salem, which were sent to the members of the Zoning Board of Appeal. 5. In July Ms. Moustakis submitted affidavits concerning the prior use of the dwelling from former residents Stanley Doran, William Wilson, Marianne Bick, Bernard Barmicki, Jennie Bartnicki and Sandra Baldwin. These affidavits are incorporated by reference herein as Exhibit A. 6. On August 31, 2006 the Building Commissioner determined that the three-family use was "protected from any action by the City due to the provision of M.G.L. c.40A, Section 7." See Letter of Thomas St. Pierre, August 31, 2006, attached as Exhibit B. 7. In October 2006 the Board of Appeal sought an opinion from the City Solicitor with respect to the Building Commissioner's determination, and this opinion was received at the public meeting on October 18, 2006. The Opinion of the City Solicitor, dated October 18, 2006,is attached and incorporated by reference herein as Exhibit C. 8. At the public meeting, attorneys for both parties presented argument. --On-the basis-of-the-above-findings of-fact—including-all-evidence-presented-at-the-public hearing and evidence submitted prior to it, the Zoning Board of Appeals concludes as follows: The request for appeal from the Building Commissioner's determination of August 31, 2006 is denied. In consideration of the above, the Salem Board of Appeals voted, four(4) opposed (Cohen, Dionne, Hams and Pinto) and none (0) in favor, to deny the request for administrative appeal. Nina Cohen, Chairman A TRUE CO7P Salem Zoning Board of Appeal RT � U CIT CLERK SALEM, MASS. Q=W 18, 2006 Pag 2 there must have been a buildimg permit the permit must have been issued by"a person duly authorized to issue such permits; and, the real property .must have been "improved and used in accordance wah the terms of the original building permit" Even if a building inspector misadaenly intmrpreu the zonmg ordinance or bylaw and issues a building permit,anyaggrieved has only sin years to Erle a claim for relief. Hall v provincros'.oniog Board or Aaoeau. 56 Nfws.App.Cc. 1103 (2002); C $esortss HoLL Incv Alcoholic Ikiinsing Rd- Qf Fa1mw; 385 Mass. 205 (1982). In this particular case, the building inspector issued a building permit in 1997 to -Renovate 31t f1 Apt. as per plates: new bath 8c replace walls:' The records also note that a certificate of occupancy was issued on May 15, 1997 for the work done pursuant to the buildingpermit. Is ;ypcazs from the same records the building inspector had determined that the premises was "a lawful three (3) family dwelling." 'The budding is located in an 1i.2 District. It is my opinion that even if the building inspector issued the building permit in error, the time period to appeal his decision has expired. An appeal should have been commenced at least prior to May 15, 2003 (when the certificate of occupancy was issued). If the Board finds that a building permit was issued by the proper individual and the - premises was improved- and used-in-accordance with-the-permit,-then-an-action..to- - _. ixyeaannul the issuance of the building permit and/or prohibit said use is barred by the six- year r statute of limitations. cTY QF SALEM LEGAL DEPARTMENT TJL 76.745.9595 FAM 976-74+1719 �rt>» g �g p,Fsq J81tA1DPA1�ESQL Knowz A mom ansagorm t9T.QiYSdrCiUlt Memorandum for Zoning Board of Appeals To.N1os Cohen, Qrairperson, Zorung Board of Appeals From Jerald A.Nrisella,Assistant City Solicitor RE: 4 Bentley Street October 18,2006 You requested a Legal opinrion concerning the issuance of a building permit to the owner of a two-family dwelling to allow the premises to be used as a three-family dwelling Your specific request is attached as Exhrbir A of this opinion. Your request i9 in resppoonse to an appeal filed-by Linda,Moustalds of 2 Bentley Street. . She is appmling the determipatiQn of the building commissioner that the use of 4 Bentley Street as a threefan*home is protected by the statute of limi>altioas in General Laws C lapter 40A sec. 7 (the building commissionees Letter is Exhibit B). -40Asec. 7-govems_the issuance of building permirs.The statute gives the building inspector the authority to issue a building permit.When issuing abuilding permit,the burldmg inspector must determine if the proposed use meets the zoning requirements of the locus. There is no requi era for notice or a hearing for the issuance of a building permi[- (japter 40A sec. 7 cerates a six year statute of limitations period to challenge that a building permit was issued in error.In order to obtain the protection of the six year f limitaons: CITY OP SALuMs MASSACHUStTTS PUBLIC YROPURTY DKIPARTMENT 1 zo wAsmtr aTom s-mcwr. 3RD f1.00R SALAK 1sas"cra.ISETrS 01970 Tia"mome 97S74S959S EXT.390 FAX 970.740.98" CIMSERLST DRISCOLL MaroR August 3l,2006 loin H. CM Jr., Fsgnira 9 Nor&Street Salem Ma.01970 RE:4 Hmticy Street Dar W. Cats: I have reviewed the mfbrInstlon regarding the legai statoa of b B mtley Street It L my opinion that 4 Bmticy is a 3 family dvvelliag. R is myof d Lt� 21 Is ptotoctod from sny action by the City due to ftprovisions Section 7 If you wish to appeal this deoen Ration,you must file an appeal with the Salem Zoning Hoard of Appeals. Lt should be noted, the issw of the lbws fa oily stats is aM before the Hoard. The issue be�focrs dr b Board is the catmior deck and stairwsy. W4fw G le".o llwn s SL Piar Zooiog swm oemcot offic" Building Cormnissioner cc: Philip Wysor. Esq. Elizabeth Rmaard,Solieitotr Jany yatisoJla,Aadstard Solicitor AF[rIDAV1T OF SANDRA J BA>l.DWi>!I COWCRRrit UR 4 BENTLEY SIRM 1, Sandia I Baldwin.being dryly Sworn,hereby saner that the following is hue: 1. I raside at 1 Waddogton Steer,Sa1ere,Mmwussft 01970. 2. I am an office manager of the Boston Law 5>m of Goodwin Proctor. forg„ll y Goodwin,proem&Hoar. 3. Wt mother,whose maiden Dayan was Helga Barbrickl,grew up is the Bermicki tic Mly M messted along with bet 6 siblings.MIudlag nut uncle, Hazard Bartinicki,who is also submitting an affidavit,along with his wife. Jamie. 4. I am intimately fim liw with 4 Bcnthy S bur also because I con tta,'l to oonly because I grew up at 2 Bentley Sheet. wit unus ons fldends and reWves in the neigbborlwod even after moving out ofABonday Sued in 1954. 5. I can unequivocally stats that until 1969(at a minimum)4 Beatloy Stoat, Salah,MA had been conrinuomly oparted as a 2-fuogy went banding,with one apartment on the fust floor and the other on the second 6. I row realize tat ha varim"was never obtained for 4 Bentley Street to become a 3-thndy Property,am was it pmdfA=W as a lega13-Family property as of the eteaden of the current zoning in 1965. 9 - -- - ------Signed under-oath thin -/ ---dry of July 2006. — 3andra L Baldwin wF[tibAV1T OF J&PiNT>dc HA1tTNIt1.1Q 1,.Jame BumwkL bcim duly sworn,hereby swear that the following is true: 1. 1 Wendy of reside at 122 years,Ha td u cc%Dp w.,M,Mamcba+etts 01923 with my b 2 Frma the time my husband and I plamied in 1941,aati11999 (approximately),we visftd my uAw and brother,who resided in the Barmiclti fnadly homestead at 2 Badcy Stint,Salem.MWmbuseft virtually every weekend. 3. I cm uneand%eme state Rom 8rsW ana kwwkdp*A 4 B��Sftcct was used as a 2-SwAy apacm�mt building at least 1998(at a minimum).vA&A consisted of a fmt floor unit,and a second uait on the second door. Signed under oath this / `� day of July 2006. Jetulie Hattniuld .vvmwVlT OF B B 1 1.Bernard Batmficki.being duly swom beseby swear that the following is tre: 1, I currently reside at 122 Locust Street.Dgavas.Measeohumw 01923 with my wife of 65 years,Jcooie Battmc" tma wife and 1 mewed in 1941.vnri1199g(apym�atilY� 2' visited Myam and bcorhats,who ceded in tbo Bart"firmly homestead at,2 BmtleY Street,Salon.Massachueef.wt's°V" state fMM )rand kwwWp that 4 Bentley Street ;, Y can UMMMonloy uacd as a --fa=IY apectm�building ban ib a! �� )..ACh oomiated oda forst floor unk and a socoud unit on the second floor. Sigaed>u>d�oaththis f'� day of July 2006_ Bernard Bartnicki B �nxt�tt_xrNG 4 81iPf1'��SI'1 1.Marismne Side,being duly svmM hereby swear that this following is tress: 1Apatmegig4gtUnjtNo.217 of the ChaM Mn um Duck Pond Rued.DOUVO „lvf machusarb 2. W bm*w,Spey Data%.and l lived at the second floor unit at 4 Boutley Ste,mem,Njugacliiisects Som 1957 to 1961 inclusive 3. During the etfte time we resided at 4 Bentley Stmt.the PmPC'tY was operated as a 2-family apartment building. 4. In 1961 we movediuss arosmd the cower to 155 Deft St"It,where we continued to reside WIM 1969- 5. ,ve n after my brother and 1 moved tO 155 Derby Street in 19610 we oo»dnnad to be very f maiar with 4 Bartley Stmt.not o°ly because we .neo intimately flwanili with the ne+ghb0dMx4 in gam.ha"mg grown up&.%but also because we had several friends sod=Wvcs living an BCMIJ1ey Street,mduding ow cowins.Philip and Louie Swiniack who resided at 14 Bentley Street 6 Daring the Period 1961 tol96g inchwsiv%4 Bentley Street was himwiso confimom*operated as a 2-fam'ly apartment bu ldin& 7. 1 am not related by blood or by marriage t'o f rode Moustalds of 2 Bentley Street.Saloaa.Massachusetts.01970- Signed wide'oath this 1 y Y�day of July 2006. 1 Dick AFFIDAVIT OF STANLItY DOROM COPiCERN�r_a RR .�SCREP'I: I, Stmaley Dora;being duly gym+beaoby wear that the following is true 1. I cusentiy reside at 12 Cadet MU Drive.Danvers.Msuwhusvtb6 01923. 2. My x6w,Ma bnw Bkk,and I lived st the second nom met at 4 Bentley Sheet,Ssipm,Massachuseft fie m 1957 to 1961 inahtsim 3. During the end=time we resided at 4 Bentley Street,zbe psOPcAy'rat operated as a 2-family Vmtm d building. 4. In 1961 we mesad just stow the comw to 155 Darby Shu*,vdm aro coutnmsed to re"=tz 196& 5. Evan atkr my sister and I moved to 155 Derby Stsoct.in 1961,we cmdnued to be vay famffiw with 4 Bentley Street,not only because we were kdmttcly ftutjiat with zbe neigbbodwod in general.baying grown on BcMdey sfteeet,hwIudwg our cou mua PIMP aid T aum ST"murkwho resided at 14 Bentley Street. 6. Ing*0 period 1961 toI968 inclusive,4 Beazley Street was blmwise contlwwusly operated as a 2-faadly apartment buHdW& 7. I am npt related by blood m by marriage is Linda Moustalna of 2 Bentley Barer.Salem.b(asaschnaethi,01970. Signed under oadh tbis day of July 2006. - - bulay AxrtIDAVPi'OF WICI.IAM'iVII.3•�1 CONCZB'N G 4 BENTLEY STRM I. William Wilton.being d*sworn,bureby sweat that the following is tree: 1. I cuncatly ieaide at 4200 South East 47n Place, Oce14 Flodda 34480.. 2. Dating 1963 and 1%4,I resided is tha, Aid t$oca alwroment at 4 Besntley Street.S4am.Massec useft during 1 and 1964. 3. As I am 73 yews old now.I was thaw 43 and 44 years old. 4. Damns my endo occupancy of my first Hoar apaztmant at 4 Becky Street,the property was opdatad as a 2-family apartment buildie&dao j4wWw unit being thea occupied by as FAwwd Lassitcr Rod his wife. Anna Lassiter. 5. I am not related by blood or by xnsmlage to Linda MoustaW of 2 Bentley Street. Salem,Massedsosetts.01970. Signed under oath this day of July 2006. '2001Z!Q� William Wilma ae ®®®A® ®N®®E aa® a9 ® a ®ERM aa® � — GLOVSKY & GLOVSKY Philip C.Wysor awvsorna,2lovskvx2.com ATTORNEYS AT LAW Direct Dial(978)720-3112 October 12, 2006 HAND DELIVERED Nina Cohen, Chairperson Salem Zoning Board of Appeals 120 Washington Street, 3`1 Floor Salem, MA 01970 RE: Nicholas Osgood 4 Bentley Street Salem, Massachusetts 01970 Dear Ms. Cohen: Enclosed for filing please find Mr. Osgood's Supplemental Memorandum, together with an Affidavit and copies of the cases cited. These materials are submitted in anticipation of the continued hearing on this matter scheduled for October 18, 2006 at 6:30 p.m. Thank you. truly yours, 1 P ilip C ysor PCW:mfs cc: Jerald A. Parisella, Esquire (with enclosures) Alexander&Femino One School Street Beverly, MA 01915 John H. Carr, Jr., Esquire (with enclosures) 9 North Street Salem, MA 01970 Eight Washington Street Beverly, MA 01915 Tel: 978.922.5000 Fax: 978.921.7809 B SUPPLEMENTAL MEMORANDUM REGARDING M.G.L. CHAPTER 40A, SECTION 7 To: Salem Zoning Board of Appeals FROM: Philip C. Wysor, Esq., Glovsky& Glovsky Attorney for Nicholas Osgood RE: 4 Bentley Street, Salem, Massachusetts 01970 (the "Property") DATE: October 12, 2006 HISTORY: Philip C. Wysor, as attorney for Nicholas Osgood (the "Owner"), submitted a prior Memorandum to the Salem Zoning Board of Appeals dated July 19, 2006. The Memorandum raised two issues, namely: 1. If a building permit is issued by the building inspector confirming the building's use as a three-family dwelling unit, and the project is constructed pursuant to the permit, does this prohibit the challenge of its use as a three-family dwelling based on current zoning of the neighborhood? 2. Under all circumstances of this case, has the Owner demonstrated a hardship entitling him to a variance for set back of the exterior staircase? John H. Carr, Jr., Esq, as attorney for Linda Moustakis (the "Abutter"), submitted a Memorandum of Law to Thomas St. Pierre and the Salem Zoning Board of Appeals dated August 15, 2006. The purpose of this Supplemental Memorandum in Support is to refute the arguments made by Attorney Carr as to the first of the two above-referenced issues. ISSUE: If a building permit is issued by the building inspector confirming the building's use as a three-family dwelling unit, and the project is constructed pursuant to the permit, does this prohibit the challenge of its use as a three-family dwelling based on current zoning of the neighborhood? ARGUMENT: Massachusetts General Laws Chapter 40A, Section 7 governs the enforcement of zoning actions and how they relate to improvements that have been made to real property pursuant to a building permit. The obvious intent of this statute is to "limit the time within which building permits could be attacked as issued in violation of a zoning regulation." Cape Resorts Hotel, Inc. v. Alcoholic Licensing Board of Falmouth, 431 N.E.2d 213, 221 (Mass.App.Ct. 1982). Under Chapter 40A, Section 7, if real property has been improved and used in accordance with the terms of the original building permit, no action to modify the use allowed by the permit can brought more than six years after the alleged violation of the law. In this case, on February 27, 1997, Mr. Osgood applied for and was granted building permit number 97-97 to "renovate third floor apartment as per plans", including the re-configuration of the existing kitchen and bath and modification of floor plan, with an estimated cost of$7,000.00. The permit indicates on its face that a "Certificate of Occupancy issued 5-15-97 for permit #97-97". Moreover, on December 21, 1993, the Zoning Enforcement Officer (Building Inspector) made and signed a note on the permit: "Determined to be lawful three (3) family dwelling as per the Zoning Enforcement Officer." A copy of the above-referenced permit has been previously provided to the Zoning Board, but is also attached hereto as Exhibit A to Mr. Osgood's Affidavit filed herewith. In his August l51h Memorandum, Attorney Carr makes reference to a number of Massachusetts cases which he alleges stand for the proposition that M.G.L. Chapter 40A, Section 7 is somehow not applicable to the matter currently before the Zoning Board. As further detailed herein, a number of the cases referenced by Attorney Carr involve situations where the appellate court ultimately ruled that enforcement actions were barred by the six-year limitations period in Chapter 40A, Section 7. Furthermore, those cases where the appellate declined to recognize the six-year limitations period are easily distinguishable from the matter currently before the Zoning Board. For clarification, I will address each of these cases in turn: 1. Lord v. Zoning Board of Appeals of Somerset, 567 N.E.2d 954 (Mass.App.Ct 1991). The Lord case involved a home located in a single family residence district. The homeowner obtained a building permit in 1966 to construct an addition to the home, consisting of two bedrooms and a living room. At the same time, the homeowner did additional work not specifically authorized by the building permit. The homeowner also completed further additional work without the benefit of a building permit over a period of nearly ten years. The effect of all of this work was to effectively create a two-family home in a single family residence district. Both the trial and appellate courts held that the conversion of the home from a single-family residence to a two-family residence was beyond the scope of the 1966 building permit, and therefore found the six-year limitation period of Chapter 40A, Section 7 to be inapplicable. DISTINCTION: In order for Chapter 40A, Section 7 to be applicable, the real property must have been improved and used in accordance with the terms of the original building permit. The facts of Lord clearly show that the homeowner performed substantial work beyond the scope of the 1966 building work, including work that changed the nature of the use of the home from a single-family dwelling to a multi-family dwelling. In the case before the Zoning Board, it is undisputed that Mr. Osgood performed all of the renovations to the third floor apartment in full compliance with permit number 97-97. Furthermore, permit number 97-97 indicates on its face that -2- "Certificate of Occupancy issued 5-15-97" implying that was completed and inspected by the Zoning Enforcement Officer." Since Mr. Osgood improved and used the property in full compliance with permit number 97-97, the six-year limitations period set forth in Chapter 40A, Section 7 should be applicable and should bar the current claim brought by the Abutter. 2. Feuer v. Board of Appeals of Stoneham, 785 N.E.2d 427 (Mass.App.Ct. 2003). As in the Lord case, the Feuer case involves a situation where the property owner failed to comply with the work requirements set forth in a building permit. Feuer is an unpublished opinion and, as such, does not contain a complete factual history of the case. Based on the limited facts available, a property owner brought an action to prevent an abutting property owner's patrons from using his parking lot. The plaintiff claimed the use of the abutting property as a banquet facility violated zoning. The banquet center owner claimed that the original structure was completed in accordance with a building permit issued more than six years prior to the commencement of the action. The appellate court held that "although there is a six-year statute of limitations on use violations in G.L. c. 40A, Section 7, it is not applicable unless the original structure was completed in accordance with the original building permit. This building was not so constructed." Feuer, at 427. DISTINCTION: As in Lord, the Feuer court rejected the six-year statute of limitations on the grounds that the property owner had not complied with the terms of the original building permit. As mentioned above, Mr. Osgood clearly complied fully with terms of building permit 97-97. Therefore, the six-limitations period set forth in Chapter 40A, Section 7 should be applicable and should bar the current claim brought by the Abutter. 3. Cape Resorts Hotel. Inc. v. Alcoholic Licensing Board of Falmouth, 431 N.E.2d 213 (Mass. 1982). The Cape Resorts case involved the operation of a resort facility where the scope of the operation had clearly changed over time. Over a period of more than 50 years, the resort had evolved from a traditional summer resort to a nightclub specializing in live entertainment. Along with various other claims, the property owner contended that the current use of the resort was in accordance with certain building permits issued over the years and that the six-year period of limitations in Chapter 40A, Section 7 barred any action to limit the current use. The Cade Resorts court held that the six-year limitations period was applicable to a specific use within one room in the resort, but that the uses being made in the remainder of the resort had changed since the issuance of the original building permit. DISCUSSION: The Cape Resorts case need not be distinguished from the case before the Zoning Board because the decision reiterates that uses made in accordance with the terms of an original building permit cannot be challenged after six years under Chapter 40A, Section 7. The Cape Resorts limited the applicability of 40A, Section 7 to -3- only one specific room within the resort because only that room had been used in accordance with the terms of the building permit. Other rooms (specifically a porch in Cape Resorts) had not been used in accordance with the building permit. As a result, the six-year statute did not apply to certain uses within the resort. As with many of the cases cited by Attorney Can, the Cape Resorts case involves a situation where the use, at least in part, was not consistent with the terms of the original building permit. In the case before the Zoning Board, the use of 4 Bentley has been consistent with terms of building permit 97-97 since the issuance of the permit in 1997. 4. Lapidus v. Board of Appeals of Boston, 748 N.E.2d 495 (Mass. App.Ct. 2001). The Lapidus case involved a building permit issued in 1972 allowing property in a residential zone to be used as a restaurant with entertainment. Some 23 years after issuance of the building permit, the plaintiff brought an action challenging the use of the property. Since the property is located in Boston, the Boston zoning enabling act, as opposed to Chapter 40A, controlled. However, the Lapidus court made specific reference to Chapter 40A as a helpful guide in holding that the plaintiff s action was time-barred. DISCUSSION: The Lapidus case need not be distinguished from the case before the Zoning Board as it stands as a case where a statute of limitations was upheld. Although Chapter 40A was not the controlling law in Lapidus, the court did state that "under Section 7 of the Zoning Act (Chapter 40A), in situations where improvements have been made pursuant to a building permit, challenges to use must be brought within six years of the issuance of the permit." Lapidus, at 497 5. Garabedian v. Westland, 796 N.E.2d 439 (Mass.App.Ct. 2003) The Garabedian case involved a property owner who operated a private airport on his property. The owner received a building permit to construct a "barn" on his property in 1984, which he intended to use an airplane hangar. More than ten years later, the owner had a dispute with several neighbors over his attempt to lengthen the runway on his property. The neighbors asked the building inspector to require the property owner to remove the hangar on the grounds that the original building permit authorized construction of a "barn", not an airplane hangar. The appellate court rejected this argument and found that the challenge to the hangar built pursuant to the 1984 building permit was barred by the permit-related six-year limitations period in Chapter 40A, Section 7. DISCUSSION: As with the Lapidus case, the Garabedian decision does not need to be distinguished from the case before the Zoning Board because the Garabedian court ultimately found the six-year limitations period to be applicable. In his August 15`h Memorandum, Attorney Carr appears to impute a knowledge requirement into the analysis of whether or not Chapter 40A, Section 7 is applicable. There is absolutely no requirement in either Chapter 40A, Section 7, or the cases that interpret it, stating that an abutter needs to have knowledge of a building permit in order to start the six-year period of limitations. The Garabedian decision mentions that the neighbors "complain that they -4- were deceived because the building was described on the building permit as a barn." Garabedian, at 447. In response to this specific complaint, the Garabedian court held that "given the accompaniment of FAA materials, any persons inspecting the building permit documents would not have supposed the barn was for animals. They would know that the barn was for the storage of things mechanical." Id. Therefore, even in a case such as Garabedian where there was some ambiguity in the original building permit as to the description of the work, the court found the six-year statute of limitations to be applicable. There is no ambiguity in the building permit at issue before the Zoning Board. Permit 97-97 clearly described the work to be completed and states on its face that the work was completed in accordance with the permit. 6. Moreis v. Board of Appeals of Oak Bluffs, 814 N.E.2d 1132 (Mass.App.Ct. 2004). Attorney Carr devotes a substantial portion of his August 15`h Memorandum to the Moreis case. Attorney Carr correctly points out that the Moreis court rejected an argument that certain uses were grandfathered by virtue of the six-year enforcement limitation contained in Chapter 40A, Section 7. However, Attorney Carr fails to point out the reasoning behind the rejection of the statute of limitations argument in Moreis, namely that (i) the work authorized by several of the building permits at issue was never performed, and (ii) the use of the property had no relationship to the work authorized by the building permits. The Moreis court points out that "the first two permits were not placed in evidence, nor was there evidence that any work authorized by these permits was accomplished within the terms of those permits." Moreis, at 1136. The court further stated that "there is no evidence of plans for, or the location of, the permitted work on the lot, nor is there evidence that any of the permitted work `as built' was accomplished or approved as compliant with the 1965 permit." Moreis, at 1135. In the case before the Zoning Board, there is clear and undisputed evidence that the work referenced in permit 97-97 was completed in accordance with the permit and that the use of the property has been consistently used in accordance with the work authorized by the permit. CONCLUSION: The requirements of the six-year statute of limitations set out in Chapter 40A, Section 7 are clear. There must have been a building permit. The permit must have been authorized by a person duly authorized to issue such permits. The real property must have been improved and used in accordance with terms of the original building permit. The case before the Zoning Board satisfies each of these requirements. Building Permit 97-97 is a valid building permit issued by the Zoning Enforcement Officer. Work was performed in accordance with the permit and a Certificate of Occupancy issued. The Owner has used the premises in accordance with the permit continuously since the issuance of the permit in 1997. Attorney Carr has referenced numerous cases in an attempt to complicate this otherwise straightforward issue. Each of these cases either supports Mr. Osgood's position or is easily distinguishable, as detailed elsewhere in this Memorandum. Therefore, the applicant respect requests that this Board uphold the -5- decision of the Salem Building Inspector and find that any action attacking the use 4 Bentley Street as a legal 3-family dwelling is time-barred under M.G.L. Chapter 40A, Section 7. Mr. Osgood's Affidavit in support of this Memorandum is attached hereto. Respectfully submitted, NICHOLAS M. OSGOOD, By hfay, Ph lip C. Wysor, Esq. Glovsky& Glovsky 8 Washington Street Beverly, MA 01915 (978) 922-5000 -6- AFFIDAVIT I, Nicholas M. Osgood, being first duly sworn upon oath do hereby depose and say: 1. I purchased the property known as 4 Bentley Street, Salem, Massachusetts on November 30, 1995, and I have owned it continuously up to the time of the conversion of the property to a 3 unit condominium in November of 2005. I currently own Unit 3 in this project. 2. When I purchased 4 Bentley Street it was listed in the records of the City of Salem as a 3-family dwelling. 3. In fact, when I bought the property each of the three units was occupied by a separate family, including one Section 8 tenant. In November of 1995, the building had three separate electric meters. 4. On February 27, 1997, I applied for and was granted permit#97-97 by the City of Salem Building Inspector to renovate the existing third floor apartment. It was a substantial job, including the re-configuration of the existing kitchen and bath and a modification of the floor plan. (See Exhibit "A" attached.) 5. On May 15, 1997, I received an Occupancy Permit for the third floor unit, specific to permit#97-97. (See Exhibit "A" attached). Except for the period of construction there has been a tenant occupying the third floor continuously since November 30, 1995 to the present date. 6. On May 25 2005, 1 applied for, and received from the City, Permit No. 1006-05 to construct a second means of egress to the third floor unit. The design of this stairway was reviewed with my contractor and approved by the Building Inspector, Mr. St. Pierre. I was later told by the Building Inspector that the City had incorrectly issued the permit, and I needed to apply for a variance. In November of 2005, 1 sold Units 1 and 2 of the 4 Bentley Street Condominium. 7. Without the second means of egress to Unit 3, I am unable to sell it. Si d under the pains and penalties of perjury thisA�day of October, 2006. 1 ss Nicholas M. Osgood 2 ATE OF PERMIT - PERMIT No. OWNER LOCATION - 8/13/84 I 11395 Paul Stuntz 4 Bentley Street �- STRUCTUREE MATERIAL DIMENSIONS: No.OF STORIES 114o.OF FAMILIES I, WARD, ( COST Dwelling 1,500 BUILDER - . ._.... _.. Strip and reroof,remove doomers where necessary,replace with newer windows. Determined to a l three (3) family dwelling as per the Zoning Enforcement Officer: 1, LEO E. TR AY DATE /27/97 1197-97 Renovate 3rd fl. a4as per plans: new bath & replace walls. est. 7000. fee (Owner: Nicholas Osgood) . J.J.J. 47. Certificate of Occupancy issued 5/15/97 by M.M.M. for permit 11 97-97 EXHIBIT "A" Page 33 of 37 567 N.E.2d 954 Page 1 30 Mass.App.Ct.226, 567 N.E.2d 954 (Cite as: 30 Mass.App.Ct.226,567 N.E.2d 954) C Ten-year statute of limitations applicable to actions Appeals Court of Massachusetts, complaining of structural violations for which no Bristol. permit was given did not protect owner's use of Benjamin R.LORD house, located in single-family residence district, V. for two families, even though limitation protected ZONING BOARD OF APPEALS OF SOMERSET. structural alterations done by owner without No.90-P-983. building permit; ten-year period omits protection for use violations not sanctioned by permit. Argued Jan. 29, 1991. M.G.L.A.c.40A,§7. Decided March 8, 1991. 131 Zoning and Planning 0�762 Owner of house appealed from judgment of the 414062 Most Cited Cases District Court Department, Fall River Division, Neither 1966 building permit authorizing owner of John H. O'Neil, J., sustaining denial of permit to use house located in single-family residence to make house as two-family residence. The Appeals Court, addition to first floor consisting of two bedrooms Armstrong, J., held that: (1) ten-year statute of and living room nor 1972 permit authorizing limitations applicable to actions complaining of construction of two-car garage contemplated structural violations for which no permit was given introduction of two-family use, and thus, six-year did not protect owner's use of house, located in limitation period applicable to use violations if real single-family residence district, for two families, property has been improved and used in accordance and (2) neither 1966 building permit authorizing with terms of original building permit did not owner to make addition to fust floor consisting of protect owner's use of home as two-family two bedrooms and living room nor 1972 permit residence.M.G.L.A.c.40A, § 6. authorizing construction of two-car garage **954*226 Mark L.Levin,Fall River,for plaintiff. contemplated introduction of two-family use, and thus, six-year limitation period applicable to use **955 Clement Brown,Fall River,for defendant. violations if real property has been improved and used in accordance with terms of original building Before ARMSTRONG,FINE and JACOBS,JJ. permit did not protect owner's use of home as two-family residence. ARMSTRONG,Justice. Affirmed. [1] The plaintiffs house is located in a single-family residence district; a special permit is West Headnotes required for a two-family residence. The plaintiff appeals from a judgment sustaining the board's Il] Zoning and Planning X385 denial of such a permit. There is nothing to that 414k385 Most Cited Cases aspect of the appeal. See Zaltman v. Board of Owner, whose house was located in single family Appeals of Stoneham, 357 Mass. 482, 484, 258 district, was not entitled to special permit required N.E.2d 565 (1970); Copley v. Board of Appeals of for two-family residence. Canton, 1 Mass.App.Ct. 821, 296 N.E.2d 716 (1973); Subaru of New England, Inc. v. Board of 121 Zoning and Planning X762 Appeals of Canton, 8 Mass.App.Ct. 483, 486-488, 414k762 Most Cited Cases 395 N.E.2d 880 (1979); Schiffone v. Zoning Bd. of ©2006 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW6.09&destination=atp&vr=2.0&sv=Split&prft=H... 10/2/2006 Page 34 of 37 567 N.E.2d 954 Page 2 30 Mass.App.Ct.226, 567 N.E.2d 954 (Cite as:30 Mass.App.Ct.226,567 N.E.2d 954) Appeals of Walpole, 28 Mass.App.Ct. 981, 984, violations not sanctioned by permit is plain on the 553 N.E.2d 1308(1990). face of the statute. The complaint also sought a declaration that work FNl. The amendments to § 7 effected by done under a building permit in 1966, coupled with St.1989, c. 341, § 21, if applicable to this his use of the *227 house as a two-family residence case,would not affect the result. from 1976 until 1988, when the building inspector issued a cease and desist order, protected that use *228 It is not contested that the ten-year limitations under G.L. c. 40A, § 7, making a special permit period protects the structural alterations done by the unnecessary. The judge rejected this contention in plaintiff without a building permit. The plaintiff, his decision, but the judgment does not reflect that however, urges that we interpolate protection also ruling. for uses into the ten-year limitations period, consistently (he argues) with our similar treatment The 1966 permit authorized an addition to the first of G.L. c. 40A, § 6, first par., in Willard v. Board of floor, consisting of two bedrooms and a living Appeals of Orleans, 25 Mass.App.Ct. 15, 514 room. At the same time the plaintiff converted the N.E.2d 369 (1987). The interpolation there, original bedroom and living room on the first floor "however, was necessary to make sense of the to a kitchen and bathroom. Between 1967 and 1976 statute, "to render [the] statute intelligible and so the plaintiff did additional work without benefit of a effectuate its obvious intent." Id. at 21, 514 N.E.2d building permit, adding three bedrooms and a living 369. No similar confusion arises from the omission room in the basement (which already had a kitchen in§7 of protection for nonpermissive use violations. and bathroom). In March, 1972, the plaintiff obtained a building permit to construct a two-car [3] The six-year limitations period does not protect garage. It is agreed that the 1966 permit made no the use of the premises as a two-family house. As reference to two-family construction or use and that in the case of the building permit to enclose a porch neither the building inspector nor any other town in **956Cape Resort Hotels, Inc. v. Alcoholic Lic. official was aware until 1988 that the plaintiff was Bd. of Falmouth, 385 Mass. 205, 219, 431 ME.2d using the house in that manner. 213 (1982), which presaged no change of use, the record here does not show that the 1966 building [2] The second paragraph of G.L. c. 40A, § 7, as permit for the addition contemplated introduction of amended through St.1987, c. 481, § 1, [FNI] two-family use. Nor, by 1972, can it be said that a contains two separate limitations periods for actions permit for a two-car garage signaled that two brought to redress zoning violations: the first, six families would be using the house. years, applicable to actions complaining of structural violations or use violations if 'real The judgment is to be amended by adding a property has been improved and used in accordance paragraph declaring that the use of the plaintiffs with the terms of the original building permit"; the house as a two-family dwelling is not protected by second, ten years, applicable to actions complaining the provisions of G.L. c. 40A, § 7. As so of structural violations for which no permit was amended, the judgment is affirmed. given. (The limitations period runs in each case from the commencement of the alleged violation.) So ordered. In contrast to the six-year limitations period applicable to zoning violations ostensibly 30 Mass.App.Ct. 226,567 N.E.2d 954 authorized by a building permit, which explicitly covers both structural violations and use violations, END OF DOCUMENT the ten-year limitations period for zoning violations unsanctioned by a permit covers only structural violations. The omission of protection for use ©2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WL W 6.09&destination=atp&vr=2.0&sv=Split&prft=H... 10/2/2006 Page 19 of 37 f We tldw. 785 N.E.2d 427(Table) Page 1 57 Mass.App.Ct. 1114,785 N.E.2d 427(Table),2003 WL 1524675 (Mass.App.Ct.) Unpublished Disposition (Cite as: 57 Mass.App.Ct.1114,785 N.E.2d 427,2003 WL 1524675(Mass.App.Ct.)) Even though property owner could not prove Briefs and Other Related Documents specific monetary damages suffered by his tenants, as result of building permit issued for use of NOTICE: THIS IS AN UNPUBLISHED adjacent property as a banquet facility, he did OPINION. present evidence that there was adverse impact on his tenants from use by patrons of banquet center of his parking lot, which constituted an infringement of Appeals Court of Massachusetts. property owner's legal rights, such that owner had Curt R. FEUER,trustee, [FN1] standing to challenge issuance of building permit. FN I.Of Montvale Place Realty Trust. [2] Zoning and Planning X762 414k762 Most Cited Cases V. Use of property as a banquet facility was not BOARD OF APPEALS OF STONEHAM& protected by statute of limitations on use violations, others. [FN2] from enforcement action for violations of zoning by-law in force at time of issuance of building FN2. Martin L. Murphy, Jr., trustee of permit, which did not permit use of premises as a KMJSS Realty Trust, and Marty's banquet facility.M.G.L.A.c.40A,§7. Caterers,Inc. MEMORANDUM AND ORDER PURSUANT TO No.01-P-1094. RULE 1:28 ***1 This appeal raises the two following issues: March 25,2003. was the judge correct in (1) finding and ruling that the plaintiff had standing to challenge the issuance Property owner brought action challenging building of the building permit in question, and (2) ruling permit issued for use of adjacent property as a that the use of the property as a banquet facility is banquet facility. The trial court held that plaintiff not protected by G.L. c. 40A, § 7, from had standing to challenge building permit, and that enforcement actions for zoning violations. We use of property as a banquet facility was not affirm. [FN3] statutorily protected from enforcement actions for zoning violations. Permit holder appealed. The FN3. The trial judge's rulings that Appeals Court held that: (1) property owner had plaintiffs action is not barred by either the standing to challenge issuance of building permit, failure to exhaust administrative remedies and (2) action was not barred by the statute of or the doctrine of laches were not issues in limitations. this appeal. In addition, the town's appellate argument that the use of the Affirmed. property is a prior nonconforming use and so protected under G.L. c. 40A, § 6, was West Headnotes neither raised nor argued below. "It is, of course, axiomatic that an appellate court [11 Zoning and Planning C-571 need not consider a claim that is asserted 414k571 Most Cited Cases for the first time after judgment has ©2006 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WL W 6.09&destination=atp&vr=2.0&sv=Sp lit&prft=H... 10/2/2006 Page 20 of 37 / 785 N.E.2d 427(Table) Page 2 57 Mass.App.Ct. 1114, 785 N.E.2d 427(Table),2003 WL 1524675 (Mass.App.Ct.) Unpublished Disposition (Cite as: 57 Mass.App.Ct. 1114,785 N.E.2d 427,2003 WL 1524675(Mass.App.Ct.)) entered below." R.W. Granger & Sons, completed in accordance with original building Inc. v. J & S Insulation, Inc., 435 Mass. permit. This building was not so constructed. 66, 73, 754 N.E.2d 668 (2001). Therefore, the use violation was not protected by Accordingly, we do not reach this issue. the six year statute of limitations. However, we note in passing that, on the record before us, G.L. c. 40A, § 6, does Even though the six year statute of limitations was not appear to insulate this currently unavailable because the structure was not built nonconforming use any more than does § 7 according to the original building permit, that , and for the same reason (lack of condition is not eliminated by the passage of the ten conformance to the original plan). year time limit for enforcing structure violations Conveying part of the property seems even contained in G.L. c. 40A, § 7, as argued by the further to disqualify the prior use from defendant town. [FN4] protection under § 6. See Bridgewater v. Chuckran, 351 Mass. 20, 23, 217 N.E.2d FN4. We note the other defendants did not 726(1966). join in this argument. [1] 1. Standing. In his well reasoned and carefully The judge was correct in ruling that the plaintiffs written decision, the judge properly instructed action was not barred by the statute of limitations in himself on the correct principles of law regarding G.L. c. 40A, § 7, because the use in this case is not standing. (R.A. 246). The appeal relates to the protected under that statute. application of those principles to the facts found Judgment affirmed. from the evidence before him. In substance, the judge found from sufficient evidence that the use of the banquet hall had more than a theoretical impact Briefs and Other Related Documents(Back to on the use of the parking lot which was part of the top) plaintiffs premises adjacent to the banquet hall. Marashlian v. Zoning Bd. of Appeals of 2002 WL 32758139 (Appellate Brief) Reply Newburyport, 421 Mass. 719, 721, 660 N.E.2d 369 Brief of the Defendants-Appellants, Board of (1996). Even though the plaintiff could not prove Appeals for the Town of Stoneham (Jan. 15, specific monetary damages suffered by his tenants, 2002)Original Image of this Document(PDF) he did present evidence that supported the judge's finding that there was an adverse impact on his • 2001 WL 34721581 (Appellate Briet) Brief of the tenants from the use by patrons of the banquet Defendants-Appellants, Board of Appeals for the center of the plaintiffs parking lot. Unauthorized Town of Stoneham (Oct. 31, 2001)Original Image use of the plaintiffs property constitutes an of this Document with Appendix(PDF) infringement of the plaintiffs legal rights, as contemplated in Marashlian, supra. For this and • 2001 WL 34721588 (Appellate Brief) Brief of the other reasons set forth in his decision, the judge Defendants-Appellants, Kmjss Realty Trust and ruled correctly that the plaintiff had standing. Marty's Caterers, Inc. (Oct. 18, 2001)Original Image of this Document with Appendix(PDF) (212. Use protected by C.L. c. 40A, § 7. Under the zoning by-law in force at the time of the issuance of • 2001 WL 34721572 (Appellate Brief) Brief of the the building permit here under review, the use of the Plaintiff-Appellee Curt R. Feuer, Trustee of premises as a banquet facility was not permitted. Montvale Place Realty Trust (Jan. 01, Although there is a six year statute of limitations on 2001)Original Image of this Document with use violations in G.L. c. 40A, § 7, it is not Appendix(PDF) applicable unless the original structure was ©2006 Tbomson/West.No Claim to Orig.U.S. Govt.Works. 6 F t tea.ACD Jr t �� '6e�+ e l http://web2.westlaw.com/print/printstream.aspx?rs=WL W6.09&destination=atp&vr=2.0&sv=Split&prft=H... 10/2/2006 Page 21 of 37 d 785 N.E.2d 427(Table) Page 3 57 Mass.App.Ct. 1114,785 N.E.2d 427(Table),2003 WL 1524675 (Mass.App.Ct.) Unpublished Disposition (Cite as: 57 Mass.App.Ct. 1114,785 N.E.2d 427,2003 WL 1524675(Mass.App.Ct.)) END OF DOCUMENT ©2006 Tbomson/West. No Claim to Orig.U.S. Govt.Works. http://web2.westlaw.com/prinUprintstream.aspx?rs=W LW6.09&destination=atp&vr=2.0&sv=Split&prft=H... 10/2/2006 It I Page 28 of 31 We 748 N.E.2d 495 Page 1 51 Mass.App.Ct.723,748 N.E.2d 495 (Cite as: 51 Mass.App.Ct.723,748 N.E.2d 495) P zoning code contained no statute of repose, where property use was obvious, but landowner brought Briefs and Other Related Documents first challenge 23 years after permit was issued, and statute of limitations in state Zoning Act indicated legislative desire for finality in Appeals Court of Massachusetts, variance appeals process.M.G.L.A.c.40A,§7. Suffolk. **495*723 Herbert P. Gleason, Boston, for David LAPIDUS,trustee, [FN I] Elizabeth Beyranevand. FN I.Of Cyprus Realty Trust. Thomas Frisardi,Boston,for Madra Mor,Inc. V. Robert Brunelli, Assistant Corporation Counsel, for BOARD OF APPEAL OF BOSTON&others. Board of Appeal of Boston. [FN2] Present: GREENBERG, RAPOZA, & FN2. Chong Fan Fong, the owner of the KANTROWITZ,JJ. premises, and Madra Mor, Inc., lessee of the premises. KANTROWITZ,J. No.99-P-746. Some twenty-three years after the city of Boston issued a permit for the use of certain premises as a Argued Feb. 27,2001. restaurant with entertainment, the plaintiff [FN31 Decided May 30,2001. requested that the *724 commissioner of the inspectional services department (commissioner) Landowner appealed from decision of city board of investigate the use and revoke the permit if the appeal denying his challenge to issuance 23 years premises were not properly zoned for such use. before of permit to neighboring landowner to use Given "the Legislature's desire for finality [in the property as restaurant with entertainment. The appeals process]," Chiuccariello v. Building Superior Court Department, Suffolk County, Peter Commr. of Boston, 29 Mass.App.Ct. 482, 489, 562 M. Lauriat, J., granted summary judgment for N.E.2d 96 (1990), we conclude, in the facts and neighboring landowner. Landowner appealed. The circumstances of this case, that the passage of Appeals Court, Kantrowitz, J., held that landowners twenty-three years precludes an appeal of the appeal was barred by laches. decision. Affirmed. FN3. In referring to the plaintiff in the text, we do not distinguish between Lapidus and West Headnotes his predecessor in title to real property abutting the premises. The amended Zoning and Planning X584.1 complaint filed in the Superior Court 414k584.1 Most Cited Cases named as plaintiffs Elizabeth Beyranevand Landowner's appeal of permit allowing neighboring (Lapidus's predecessor in title), Audubon landowner to use property for restaurant with Circle Neighborhood Association, Inc., entertainment was barred by laches, although city David Lapidus, trustee, and Katherine L. ©2006 Thomson/West.No Claim to Orig.U.S.Govt. Works. ittp://web2.westlaw.com/print/printstream.aspx?rs=WL W6.09&destination=atp&vr=2.0&sv=Split&prft=H... 10/2/2006 Page 29 of 37 748 N.E.2d 495 Page 2 51 Mass.App.Ct.723,748 N.E.2d 495 (Cite as: 51 Mass.App.Ct.723,748 N.E.2d 495) Greenough. Lapidus is the only appellant. Certificates of Inspection for a restaurant with a capacity of 550 people." The underlying facts are not in dispute. On "Based on the official record found in the October 27, 1972, the city of Boston issued a permit building jacket it is clear that the [sic] in allowing the property located on the comer of 1972 the legal use and occupancy of these 835-843 Beacon **496 Street and 4-12 Miner Street addresses was confirmed as, among other [FN4] (a residential parcel), to be used as a uses, a restaurant with entertainment. All restaurant with entertainment (premises). Two subsequent documents confirm such a subsequent building permits were issued on use. In addition, the occupancy load has February 12, 1975, and May 25, 1978, again remained consistent at 550 people since recognizing the "legal occupancy or use" of the 1978." premises as a restaurant with entertainment. Dissatisfied with this response, the plaintiff FN4. The two addresses refer to the same appealed to the *725 board of appeal (board) comer parcel. pursuant to § 8 of the Boston zoning enabling act. [FN6] On January 7, 1997, the board issued its In a letter dated October 23, 1995, addressed to the decision, ruling that the plaintiff had not made his commissioner, the plaintiff "request[ed] that [the complaint in a timely manner. [FN7] The plaintiff commissioner] examine the proposed reuse of the appealed from the board's decision to the Superior [p]remises to determine if it is forbidden by the Court, which ultimately granted summary judgment Boston Zoning Code. If [commissioner] so in favor of the defendants. The judge ruled that the conclude[d], [the plaintiff] request[ed] that [the letter from the special assistant corporation counsel commissioner] revoke the [c]ertificate of was not a decision and thus was not appealable. [o]ccupancy." The plaintiff claimed that the [FN8] premises were in violation of the zoning code because there was no evidence that (1) a necessary FN6. The relevant portion of § 8 of the variance had been obtained prior to the granting of enabling act, as amended through St.1972, the permit, and (2) the restaurant was a c. 802, § 66, states: "Any board or officer nonconforming use of the property. of the city or any person aggrieved by reason of being refused a permit by any On June 18, 1996, in response to the letter, a administrative official under the provisions special assistant corporation counsel for the of the state building code or by reason of inspectional services department informed the any order or decision of the building plaintiff that an examination of the pertinent records commissioner or other administrative showed that the use of the premises as a restaurant official in violation of any provision of the with entertainment had been legal since 1972. [FN5] state building code or any zoning regulation or amendment thereof adopted FN5. The letter also stated: "in addition to under the state building code may appeal the permit issued on October 27, 1972, to said board of appeal within forty-five confirming the occupancy as a restaurant days after such refusal, order or with entertainment, this department issued decision...." a Certificate of Use and Occupancy on June 15, 1978 for 835-843 Beacon Street FN7. The decision read, in part: "The as a restaurant ... for an occupancy load of premises in question are located in the 550 people. The plan filed with the Fenway section of the City of Boston. Certificate of Use and Occupancy clearly This appeal seeks a determination that the shows a restaurant use at this structure. Inspectional Services Department erred in This department thereafter issued annual issuance of Permit # 1272 dated 10/17/72 ©2006 Thomson/West.No Claim to Ong.U.S. Govt.Works. http://web2.westlaw.com/print/printstream.aspx?rs=W L W 6.09&destination=atp&vr--2.0&sv=Split&prft=H... 10/2/2006 Page 30 of 37 •'' 748 N.E.2d 495 Page 3 51 Mass.App.Ct. 723,748 N.E.2d 495 (Cite as: 51 Mass.App.Ct.723,748 N.E.2d 495) and certificate of occupancy issued in issuance of the original permit confirming the use, conformance with the use confirmed by the action is time-barred. permit#1272. "Based upon the facts presented at the FN9. Compare, e.g., Kolodny v. Board of public hearing before the Zoning Board of Appeals of Brookline, 346 Mass. 285, Appeal on November 19, 1996, the 287-288, 191 N.E.2d 689 (1963) challenge to the existing use and (commissioners letter was "not a 'decision' occupancy is not filed before this Board in from which an appeal may be taken ... for a timely manner. Therefore, the Board ... it is no more than a reaffirmation of the is of the opinion that this appeal is denied." decision ... to issue the permits"), with Yokes v. Avery W. Lovell, Inc., 18 FNB. The judge reasoned: "The Mass.App.Ct. 471, 474-475, 468 N.E.2d [plaintiffs] letter, however, merely asked 271 (1984) (court treated letter from town the Commissioner to investigate if the building inspector as an appealable premises [were] properly zoned, and if not, decision), and Brady v. Board of Appeals to take the appropriate action. [Special of Westport, 348 Mass. 515, 522, 204 assistant corporation counsel] determined N.E.2d 513 (1965) ("A decision of the that the premises [were] legally zoned for a enforcing officer that there is not a restaurant with entertainment, and thus the violation is, in a sense, a decision 'in Commissioner took no further violation of the zoning laws, if the action. [Counsel's] response, therefore, establishment complained of exists in does not constitute an appealable refusal, violation of law"), decision, or order of the Commissioner in violation of a zoning regulation or The defendants correctly contend that the plaintiff amendment. As such, the [plaintiff] could is "essentially challenging the issuance of the use not appeal[counsel's]letter...." permit from a quarter century ago." If the Massachusetts Zoning Act, G.L. c. 40A, applied, **497 On appeal to this court, the plaintiff argues the argument of the plaintiff, as conceded at oral that his letter of October 23, 1995, was a request for argument, would be foreclosed. Under § 7 of the enforcement of the Boston zoning code and Zoning Act, in situations where improvements have enabling act and for revocation of the permit for the been made pursuant to a building permit, challenges premises. He maintains that the response from the to a use must be brought within six years of the special *726 assistant corporation counsel denying issuance of the permit. [FN 10] the request was a decision and thus appealable. FN10. General Laws c. 40A, § 7, as Conversely, the defendants assert both that the amended through St.1989, c. 341, § 21, letter was not a decision within the meaning of § 8 states, in pertinent part: "... if the real of the Boston zoning enabling act and that, even if it property has been improved and used in were, the action was time-barred, coming more than accordance with the terms of the original twenty years after the issuance of the building building permit issued by a person duly permit. authorized to issue such permits, no action, criminal or civil, the effect or purpose of Regardless of the categorization of the response, which is to compel the abandonment, [FN9] for the purposes of this case, the end result is limitation or modification of the use the same. Assuming, without deciding, that the allowed by said permit ... shall be letter from the special assistant corporation counsel maintained, unless such action ... is was a decision of the commissioner and thus commenced ... within six years next after appealable, given the lapse of time since the the commencement of the alleged violation ©2006 Thomson/West.No Claim to Orig.U.S. Govt.Works. http://web2.westlaw.com/print/printstream.aspx?rs=W L W 6.09&destination=atp&vr=2.0&sv=Split&prft=H... 10/2/2006 Page 31 of 31 •� 748 N.E.2d 495 Page 4 51 Mass.App.Ct, 723,748 N.E.2d 495 (Cite as: 51 Mass.App.Ct.723,748 N.E.2d 495) of law"(emphasis added). correctly held that even if this use of the space was illegal in 1961, under G.L. c. 40A, § 7, the The premises in question are, however, located in association's action to enjoin that use comes too Boston. As such, the Boston zoning enabling act, late"). St.1956, c. 665, and amendments thereto, as opposed to G.L. c. 40A, controls. Emerson College Judgment affirmed. v. Boston, 393 Mass. 303, 471 N.E.2d 336 (1984). Unlike G.L. *727 c. 40A, the Boston enabling act 51 Mass.App.Ct. 723,748 N.E.2d 495 does not contain a statute of repose. Briefs and Other Related Documents(Back to "Although G.L. c. 40A does not govern the present top) matter, we nonetheless find it a helpful guide in defining the time within which an appeal may be • 1999 WL 33982774 (Appellate Brief) Brief of the brought and the relief which may be sought." Defendant/Appellee Madra Mor, Inc. (Jul. 07, Chiuccariello v. Building Commr. of Boston, 29 1999)Original Image of this Document with Mass.App.Ct. at 488, 562 N.E.2d 96 (footnotes Appendix(PDF) omitted). In Chiuccariello, abutters waited six months to contest the allowance of a **498 • 1999 WL 33982775 (Appellate Brief) Brief of the variance. This court held that action time-barred Defendant/Appellee Board of Appeal of the City of despite the absence of a specifically applicable Boston (Jan. 01, 1999)Original Image of this provision in the Boston zoning enabling act. In its Document(PDF) analysis, the court cited and applied § 17 of c. 40A, which mandated a ninety-day period within which END OF DOCUMENT to appeal. "General Laws c. 40A and St.1956, c. 665, share common purposes and allow for the rendering of comparable decisions.... We view ... G.L. c. 40A, § 17, as an indication of the Legislature's desire for finality in the variance appeals process. We impute the same legislative concern and intention, that there be both a beginning and an end to this process, to the Boston enabling act." Id. at 488-489,562 N.E.2d 96. That same consideration exists in the case at bar. Because the complaint was filed in 1995, over two decades after the first permit was granted, we conclude that, in the circumstances of this case, the suit is time-barred. During that time, 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. See generally Chilson v. Zoning Bd. of Appeal of Attleboro, 344 Mass. 406, 409, 182 N.E.2d 535 (1962) (issue of nonconforming use not reached as nine-year interval had passed); Cape Resort Hotels, Inc. v. Alcoholic Lic. Bd. of Falmouth, 385 Mass. 205, 219, 431 N.E.2d 213 (1982) ("The judge ©2006 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?rs=W LW 6.09&destination=atp&vr=2.0&Sv=Split&prft=H... 10/2/2006 Page 2 of 13 W@3tl1W. �.f 796 N.E.2d 439 Page 1 59 Mass.App.Ct.427, 796 N.E.2d 439 (Cite as: 59 Mass.App.Ct.427,796 N.E.2d 439) P, held that: (1) neighbors were not entitled to Briefs and Other Related Documents dismissal under anti-SLAPP statute; (2) airstrip and hangars were not accessories to primary use of land Appeals Court of Massachusetts,Worcester. as single family residence; (3) neighbors had notice John H.GARABEDIAN barn was used as hangar more than six years before V. they asked building inspector to enforce zoning Mary WESTLAND&others FN (and three laws and thus enforcement was barred by statute of companion cases). limitations; (4) defense of laches precluded neighbors from challenging existence of airstrip; and (5) expansion of airstrip was not accessory to FNI. Michael Johnston; Robert Garfield primary residential use of land. (building inspector of Southborough); John Boland (director of the department of Vacated in part;otherwise affirmed. public works of Southborough); Thomas McAuliffe, David W. Parry, and William West Headnotes Christensen (the selectmen of Southborough). [11 Pleading 302 X358 No.01-P-1309. 302 Pleading Argued April 11,2003. 302XVI Motions Decided Sept. 26,2003. 302051 Striking Out Pleading or Defense 302k358 k. Frivolous Pleading. Most Land owner who operated what he described as a " Cited Cases private airport" brought declaratory judgment Neighbors were not entitled under anti-strategic action against town officials and neighbors litigation against public participation (anti-SLAPP) regarding whether he could bring fill onto his land statute to dismissal of airport owner's action for as matter of right in order to extend runway. Land declaratory and injunctive relief regarding whether owner also sought review of building inspector's he could bring fill onto his land as a matter of right cease and desist order regarding runway and denial to extend runway, where action was not based alone of permit to build second hangar. Neighbors on neighbors' petitioning to town council but also brought motion to dismiss under anti-strategic was based on their harassment of airport owner's litigation against public participation (anti-SLAPP) contractors, action did not assert any wrongdoing statute. The Superior Court Department, Worcester by neighbors or ask for damages, and there was no County, James P. Donohue, J., granted the showing of any basis to regulate airport owner's anti-SLAPP motion, and the trial court, Francis R. land filling.M.G.L.A.c. 231, § 59H. Fecteau, J., granted land owner's summary judgment motion on fill claim, which was affirmed on appeal. [21 Declaratory Judgment 118A C-44 Following trial, the court entered judgment for neighbors and town officials on issue of whether I I 8 Declaratory Judgment land owner was entitled to build second hangar, I I8AI Nature and Grounds in General entered judgment for land owner on issue of 118AI(C)Other Remedies whether first hangar and airstrip were permitted, 118Ak44 k. Statutory Remedy. Most Cited and affirmed denial of permit to build extension to Cases first hangar. On appeal, the Appeals Court, Kass, J., Orders of public officials are not generally ©2006 Thomson/West.No Claim to Ong.U.S.Govt.Works. ittp://web2.westlaw.com/print/printstream.aspx?sv=Split&rs=WL W 6.09&prft=HTMLE&fn=_top&destinati... 10/2/2006 Page 3 of 13 796 N.E.2d 439 Page 2 59 Mass.App.Ct.427,796 N.E.2d 439 (Cite as: 59 Mass.App.Ct.427,796 N.E.2d 439) appropriate subject matter for declaratory judgment, 414XI Enforcement of Regulations if, as in the case of a building inspector, there are 414XI(B)Injunction Against Violation administrative remedies to exhaust. 414082 k. Time to Sue, Limitations and Laches. Most Cited Cases 131 Pleading 302 C-358 Neighbors had notice that barn on land owner's property was used as an airplane hangar rather than 302 Pleading to store animals more than six years before they 302XVI Motions asked building inspector to enforce zoning and 302051 Striking Out Pleading or Defense require land owner to remove hangar, and thus 302k358 k. Frivolous Pleading. Most action was barred by statute of limitations; land Cited Cases owner had furnished building inspector with A motion to dismiss under anti-strategic litigation approvals for his airstrip within a month of filing against public participation (anti-SLAPP) statute building permit application, which described hangar lies if the movant shows that the plaintiffs claims as a "barn," and taking off and landing of airplanes are based on the petitioning activities of the movant served notice as to what permission had been alone and have no substantial basis beyond those granted.M.G.L.A.c.40A, §7. activities.M.G.L.A. c.231, § 59H. [71 Zoning and Planning 414 C-782 [4] Zoning and Planning 414 C=304.1 414 Zoning and Planning 414 Zoning and Planning 414XI Enforcement of Regulations 414V Construction, Operation and Effect 414XI(B)Injunction Against Violation 414V(C)Uses and Use Districts 414k782 k. Time to Sue, Limitations and 414V(C)2 Accessory Uses and Buildings Laches. Most Cited Cases 414304 Residence,Accessory Uses Airstrip on land owners land was not a "structure" 414004.1 k. In General. Most and thus 10-year statute of limitations period did Cited Cases not apply to neighbors' protest that airstrip did not 1800 foot airstrip and airplane hangars were not comply with building permits. M.G.L.A. c. 40A, § 7 accessories to primary use of land owner's property as a single family residence as they were not customarily incidental in town; takeoff and landing [81 Zoning and Planning 414 4---782 of airplanes had impact well beyond land owners land, and airstrip and hangar were not common in 414 Zoning and Planning town. 414XI Enforcement of Regulations 414XI(B)Injunction Against Violation [51 Zoning and Planning 414 0301 414k782 k. Time to Sue, Limitations and Laches.Most Cited Cases 414 Zoning and Planning Defense of laches precluded neighbors from 414V Construction,Operation and Effect successfully challenging land owners maintenance 414V(C)Uses and Use Districts of airstrip on land, where airstrip had operated for 414V(C)2 Accessory Uses and Buildings 11 years without permit, and land owner had 414301 k. Accessory Uses in General. changed his position by improving airstrip and Most Cited Cases buying airplanes to use it. Activity of a certain magnitude is no longer incidental to the primary use of land. 191 Appeal and Error 30 X1009(1) 161 Zoning and Planning 414 C=782 30 Appeal and Error 30XVI Review 414 Zoning and Planning 30XVI(I) Questions of Fact, Verdicts, and ©2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&rs=WLW6.09&prft=HTMLE&fn= top&destinati... 10/2/2006 Page 4 of 13 796 N.E.2d 439 Page 3 59 Mass.App.Ct.427,796 N.E.2d 439 (Cite as: 59 Mass.App.Ct.427,796 N.E.2d 439) Findings located in a residential zoning district. He restores 30XVI(I)3 Findings of Court and flies classic airplanes as a hobby. Garabedian 30k1009 Effect in Equitable Actions first acquired a pilot's license in 1976. He flies 30k1009(1) k. In General. Most about 100 hours per year. Until he built his own Cited Cases airstrip, he most often stored his airplane at, and The findings of fact as to laches by the trial judge, flew in and out of, the Marlborough Airport, some when based on oral evidence, will not be disturbed six miles away from his residence. by a reviewing court unless clearly erroneous. In 1984, Garabedian received permission from the [101 Zoning and Planning 414 4D-304.1 Federal Aviation Administration (FAA) to build a private grass airstrip, 1,800 feet long, fifty feet 414 Zoning and Planning wide, usable between sunrise and sunset only, and 414V Construction, Operation and Effect only in VFR (visual flight rules) conditions. There 414V(C)Uses and Use Districts would be no lights. With that permission in hand, 414V(C)2 Accessory Uses and Buildings Garabedian visited with the building inspector of 414004 Residence,Accessory Uses Southborough to *429 talk about his plans for the 414k304.1 k. In General. Most airstrip. The building inspector, who was aware of Cited Cases **442 three extant private turf airstrips in Expansion of private airstrip was not an accessory Southborough, talked in turn to town counsel. On to primary residential use of property, as airstrip the basis of that consultation, the building inspector was not customarily incidental to the primary determined that Garabedian's proposed strip was a residential use. use accessory to his residence, and that he required no permit to do the required land work. Garabedian, therefore, did not apply for a building **441*428 John 0. Mirick (Patricia L. Davidson permit for the airstrip. with him),Worcester,for John H. Garabedian. Jonathan Shapiro,Boston, for Michael Johnston. A hangar for his airplanes (by then he owned more Barry A. Bachrach, Worcester, for Board of than one aircraft) did, however, require a building pe Selectmen of Southborough. rmit, and Garabedian applied for one on September Gary S.Brackett,Worcester,for Mary Westland. 11, 1984. "Airplane hangar" was not among the preprinted use boxes on the permit application; Present:PORADA,KASS, &GREENBERG,JJ. upon consultation with the building inspector, KASS,J. Garabedian checked the box marked "other" and At the center of four actions that were consolidated wrote "barn." FAA documents that Garabedian for trial is a controversy over whether John H. submitted to the building inspector were part of the Garabedian could maintain and expand an airplane building permit application. hangar and a landing strip-facilities he described in a letter as "my private airport"-as an accessory use Garabedian began work on the airstrip in the customarily incidental and subordinate to his summer of 1984 and on the barn/hangar in the residence. The parties also dispute whether G.L. c. autumn of 1984. The airstrip was usable in the 231, § 59H (the "anti-SLAPP" statute), is autumn; the hangar, a metal-clad wood-frame applicable to Garabedian's complaint for a structure, was completed in the spring of 1985. For declaratory judgment about whether he could bring ten years, Garabedian used his private airport fill upon his land as matter of right. without incident. His collection of planes grew to ten, seven of which he customarily stored in 1. Facts. We take our facts from the careful and Southborough. During that period he paved the detailed findings of the trial judge. Garabedian, central thirty feet of the airstrip and, with FAA who is in the radio broadcasting business, lives at permission, installed low intensity runway lights so 24 Fairview Drive, Southborough, a property that he could land in the evening. The number of D 2006 Thomson/West.No Claim to Orig. U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&rs—WLW6.09&prft=HTMLE&fn= top&destinati... 10/2/2006 Page 5 of 13 796 N.E.2d 439 Page 4 59 Mass.App.Ct.427, 796 N.E.2d 439 (Cite as: 59 Mass.App.Ct.427,796 N.E.2d 439) flights to and from his Southborough strip did not the building inspector's denial of a pemrit for increase. Garabedian to build a second hangar, that Garabedian had the right to bring fill onto his At the end of the airstrip the grade dropped sharply, property, albeit subject to restrictions that the board To give himself more "run out" space on landings, established. From those administrative**443 Garabedian hired a contractor in August, 1995, to decisions, Garabedian appealed to the Superior truck in fill to even the grade and extend the Court in a second action, under G.L. c. 40A, § 17. runway. Eighteen-wheel gravel haulers rumbled One aspect of the controversy has been disposed of. by, or worse, stacked up along the property of A second judge of the Superior Court, i.e., not the neighbors. The neighbors complained to State and one who allowed the anti-SLAPP motion in the local officials, who required certain equipment declaratory judgment action, decided on repairs and removal of unclean fill, but the Garabedian's summary judgment motion that no authorities did not order the job to stop. One by-law of Southborough precluded Garabedian neighbor, Johnston, a party to this case, from filling his land. She ruled that the town could photographed truckers with a video camera. They not conjure a restriction on Garabedian's right to fill in tum attacked him and grabbed his camera. on the basis of their anticipation that he would When work resumed at the end of February, 1996, attempt to make an unlawful use of the re-graded the temperature of the antagonists was markedly property (i.e., an expanded airstrip with a second higher. Now the neighbors protested vigorously at hangar). The town officials and Johnston and town hall. On February 28, 1996, the building Westland appealed to this court and we, in an *430 inspector issued an order to Garabedian to unpublished memorandum and order under our Rule desist from bringing fill onto his land. 1:28, affirmed the reasoning and decision of the *431 Superior Court judge. See Garabedian v. In the face of the altercations that had taken place Zoning Board of Appeals of Southborough, 52 and the cease and desist order of the building Mass.App.Ct. 1101,749 N.E.2d 723(2001).rN3 inspector, Garabedian on March 15, 1996, brought a complaint for declaratory and injunctive relief regarding whether he could, as he maintained, bring FN3. After our decision, the trial judge fill onto his land as matter of right; i.e., that no (see infra ) dismissed as moot State or local law forbade his so doing. The Garabedian's declaratory judgment action complaint named as defendants-in addition to the against the town officials. town selectmen, building inspector, and director of public works-the two neighbors, Johnston and That left before a third Superior Court judge the Westland, who had challenged his right to bring in following matters for consolidated trial: (a) Review fill. Johnston and Westland responded with a under G.L. c. 40A, § 17, of whether Garabedian special motion to dismiss under the anti-SLAPP IN2 was entitled to a permit to build a second hangar on statute, a motion that a judge of the Superior Court the ground that, as his growing airplane collection allowed. We shall consider the correctness of that was just a hobby, the new structure, as the first action presently, hangar, was an accessory use, i.e., customarily incidental and subordinate to his residence under the town zoning by-law. The trial judge decided FN2. The acronym SLAPP stands for the second hangar was beyond customarily strategic litigation against public incidental use and ruled that the board, in affirming participation." the building inspector's denial of a permit for the second building, had acted within its authority. (b) Garabedian also sought review of the building Whether the original barn/hangar was an accessory inspector's cease and desist order from the use within the meaning of the by-law. The two Southborough board of appeals (board). The board neighbors, acting under G.L. c. 40A, § 7, had decided on June 19, 1996, in addition to affirming requested that the building inspector enforce the ©2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&rs=WLW6.09&prft=HTMLE&fn= top&destinati... 10/2/2006 Page 6 of 13 796 N.E.2d 439 Page 5 59 Mass.App.Ct.427,796 N.E.2d 439 (Cite as: 59 Mass.App.Ct.427,796 N.E.2d 439) zoning law and order Garabedian to stop using the FN4. But see G.L. c. 240, § 14A, which first hangar and the airstrip because they were not provides for declarations of rights under accessory uses within the meaning of the by-law. municipal land use ordinances or by-laws. The building inspector declined to do so; the board For an illustration of the application of that of appeals affirmed; and the neighbors asked for statute, see Radcliffe College v. Cambridge, judicial review of that board decision. Again, the 350 Mass. 613,215 N.E.2d 892(1966). trial judge decided the board had acted within its authority. (c) Review of denial of a permit that As noted, a judge of the Superior Court allowed the Garabedian had applied for to build a 104-foot by special motion of Johnston and Westland brought 48-foot extension to the first hangar. The trial under G.L. c. 231, § 59H, to dismiss the complaint. judge affirmed the denial. Some of the challenges thrown up by the defendants Johnston and Westland to Garabedian 2. Dismissal of declaratory judgment complaint had the character of "petitioning activity" as that under anti-SLAPP statute. Opposition activity to has been described in the anti-SLAPP statute, G.L. Garabedian's earth moving operations had come c. 231, § 59H, and by decisional law interpreting from certain of his neighbors, notably Johnston and that statute. They had made representations to Westland. They told drivers of trucks bringing in town and State officials in hope of obtaining public fill that the drivers were engaged in an illegal intervention in Garabedian's land filling work, they operation and might be liable for what they were had summoned police, they had leafleted the doing. Johnston, a television cameraman, neighborhood to encourage opposition at public photographed trucks, an act that the grading meetings, and they had organized residents to attend contractor thought sufficiently hostile and public meetings. Other aspects of their intimidating to warrant reciprocation in the form of intervention, however, were private and lacked the beating up Johnston and taking his camera. There characteristics of petition, namely the harassing of was also, ultimately, official action in the form of Garabedian's contractor and the somewhat intrusive the building inspector's cease and desist order, surveillance of Garabedian's activity. [1][2] In that venomous and unstable setting, [3] A motion to dismiss under G.L. c. 231, § 59H, Garabedian filed his complaint for a declaration, lies if the movant shows that the plaintiffs claims pursuant to G.L. c. 231A, that he *432 could bring are based on the petitioning activities of the movant fill onto his land as a matter of right, and for an alone and have no substantial basis beyond those injunction restraining interference with that right. activities. Duracraft Corp. v. Holmes Prod. Corp., The complaint states that Garabedian had received a 427 Mass. 156, 167-168, 691 N.E.2d 935 (1998). cease and desist order from the building Baker v. Parsons, 434 Mass. 543, 550, 750 N.E.2d commissioner. Orders of public officials are not 953 (2001). Petitions, by definition, are addressed generally appropriate subject matter for declaratory to *433 someone. The direct action of the judgment, if, as **444 in the case of a building individual defendants on the ground, involving inspector, there are administrative remedies to Garabedian's grading contractor, the proclamations exhaust. East Chop Tennis Club v. Massachusetts and warnings to the contractor's track drivers, and Commn. Against Discrimination, 364 Mass. 444, the picture taking, were activities based on 450-4513 305 N.E.2d 507 (1973)FN4 Compare assertions by the neighbors of a legal position and lodice v. Newton, 397 Mass. 329, 333-334, 491 involved no supplication to higher authority.FN5 N.E.2d 618 (1986). None of the defendants has The target of those activities was Garabedian. His raised the point, however, and, in any event, the declaratory judgment action, therefore, was not complaint for declaratory judgment directs itself based alone on the petitioning activities of the materially to the private challenges against neighbors. Contrast MacDonald v. Paton, 57 Garabedian's project. Mass.App.Ct. 290, 295, 782 N.E.2d 1089 (2003). For that reason, if no other, the motion to dismiss should not have been allowed, and there were other ©2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&rs=WL W 6.09&prft=HTNILE&fn=_top&destinati... 10/2/2006 Page 7 of 13 796 N.E.2d 439 Page 6 59 Mass.App.Ct.427, 796 N.E.2d 439 (Cite as: 59 Mass.App.Ct.427,796 N.E.2d 439) reasons to have denied it. that all persons who have any interest which would be affected by the declaration of rights sought shall be made parties to FNS. We are not unaware that the judge the declaratory judgment action. who considered the § 59H motion to dismiss concluded that petitioning activity FNB. The statute, in pertinent part, was the target of the declaratory judgment provides: "In any case in which a party action; but the fact of the encounters asserts that the civil claims, counterclaims, between the neighbors and Garabedian's or cross claims against said party are based contractor is not disputed. on said party's exercise of its right of petition under the constitution of the A complaint for a declaratory judgment is the least United States or of the commonwealth, aggressive of complaints. Its purpose "is to said party may bring a special motion to remove, and to afford relief from, uncertainty and dismiss."G.L. c.231, § 59H. insecurity with respect to right, duties, status and other legal relations." G.L. c. 231A, § 9, inserted A third reason to have denied the § 59H motion to by St.1945, c. 582, § 1. See Boston v. Keene Corp., dismiss is that such a motion shall not be granted if 406 Mass. 301, 304-305, 547 N.E.2d 328 (1989). the nonmoving party shows by a preponderance of There was plainly a difference of opinion between evidence that the petitioning activity is "devoid ... Garabedian and certain neighbors about whether he of any arguable basis in law" and the moving party's had a right to bring in fill and change the grade on acts caused "actual injury to the responding party." some of his land. With his project begun and under G.L. c. 231, § 59H. See Baker v. Parsons, 434 siege, Garabedian was not doomed to proceed at Mass. at 552-555, 750 N.E.2d 953. There was no risk of acting in violation of law, becoming obliged showing of a basis, in the by-laws of Southborough to undo work done, or to be liable for damages. He or elsewhere, to regulate the kind of land filling that was, under **445G.L. c. 231A, § 1, entitled to find Garabedian was carrying on. The board of appeals out what his rights were. The declaratory judgment of Southborough conceded as much in the summary action asserted no wrongdoing on the part of the judgment proceedings that resulted in a ruling in defendants; it asked for no damages.FN6 Such Superior Court, affirmed on appeal, that as assertions are hallmarks of the bullying sort of Garabedian's land was neither in a flood plain action that the anti-SLAPP statute aims to district nor contained a wetland, no statutory discourage. Here, the neighbor defendants were prohibition limited Garabedian's right to place fill not placed at risk of paying damages and, had they on his property to equalize the grade'9 As to been content to do so, could have let the town carry injury, the delays and consequent costs imposed on the case for them.FN7 The declaratory judgment Garabedian supplied that condition. action did not expose them inevitably to legal fees. Section 59H speaks in *434 terms of the assertion of a civil claim, counterclaim, or cross claim against FN9. Garabedian's contractor acceded to a party.FN8 The petition for declaratory judgment the orders to remove improper fill. That here made no claims against a party in the sense of issue was not involved in the declaratory the statute. judgment action. [4] 3. Whether the second hangar and enlargement FN6. The injunctive relief sought in the of the first hangar were accessory uses within the complaint was dependant upon, and simply meaning of the by-law. No provision in the a mechanism for enforcement of, any Southborough zoning by-law speaks to the building favorable declaration Garabedian obtained. and use of an airstrip or a hangar for airplanes. The handle in the by-law at which Garabedian FN7. General Laws c. 231A, § 8, requires grasps is that concerning accessory uses. These ©2006 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&rs=WLW 6.09&prft=HTMLE&fn=_top&destinati... 10/2/2006 Page 8 of 13 796 N.E.2d 439 Page 7 59 Mass.App.Ct.427,796 N.E.2d 439 (Cite as: 59 Mass.App.Ct.427,796 N.E.2d 439) facilities, he contends, are accessories to the Maxant court cited extensively. The word also primary use of his land for a single-family connotes something minor or of lesser importance. residence. The Superior Court judge concluded Old Colony Council-Boy Scouts of Am. v. Zoning that the proposed second hangar, the extension of Board of Appeals of Plymouth, 31 Mass.App.Ct. the fust hangar, and the extension of the airstrip did 46, 48, 574 N.E.2d 1014 (1991). Cunha v. New not qualify as accessory uses because those Bedford, 47 Mass.App.Ct. 407, 411-412, 713 facilities were not customarily incidental in N.E.2d 385 (1999). By those criteria, a garden Southborough to the primary allowed use, shed, a plant conservatory, a garage, a swimming single-family residence. This is not the fust time pool, and a tennis court might be examples of that Massachusetts courts have had occasion to accessory uses to a residence. "Customarily" consider whether a private airstrip and an airplane implies a certain commonality of usage, a history of storage shed, *435 i.e., a hangar, are permissible the lesser uses in conjunction with the primary uses. accessory uses. In Harvard v. Maxant, 360 Mass. If the usage is rare, it is not customary. Harvard v. 432, 275 N.E.2d 347 (1971), the court interpreted a Maxant, supra at 439,275 N.E.2d 347. zoning by-law definition of accessory use that was substantially similar to the one in force in [5] An 1,800-foot airstrip and airplane hangar are Southborough. Section 11 of the latter **446 not minor. The *436 taking off and landing of provides: "Accessory Building or Use: building, airplanes have an impact well beyond the structure, or use customarily incidental and boundaries of the land on which the airstrip and subordinate to the principal permitted use of hangar are located. It is a very large scale activity. building or land, located on the same lot as the Keeping elephants is different than keeping a dog, principal permitted building or use, and not and it toys with language to say maintaining a prohibited by this By-Law." landing strip and hangars is incidental to a single family house. Activity of a certain magnitude is no An incidental use, the court wrote in Maxant, is one longer incidental. Burnham v. Hadley, 58 that is "dependent on or pertains to the principal or Mass.App.Ct. 479, 484, 790 N.E.2d 1098 (2003). main use." Id. at 437, 275 N.E.2d 347. By way of Neither is maintaining an airstrip and hangar illustration, the court recalled that in Pratt v. common. According to the record, there were three Building Inspector of Gloucester, 330 Mass. 344, airstrips in Southborough, one with an 346-347, 113 N.E.2d 816 (1953), it had decided accompanying hangar, before Garabedian built his that a stable for the keeping of two horses for show facilities in 1984. Precedent is not the equivalent purposes and as family pets was not commonly to of common, and one such airplane hangar and three be expected in connection with a single family airstrips in a town of 14.1 square miles do not house, although "[i]f the same question were constitute a common use. FNio It follows that presented as of the year 1900 ... it is possible that a such uses are not customarily incidental to a different answer would be required." Id. at 347, single-family house. For those reasons, the trial 113 N.E.2d 816. judge rightly decided that the board of appeals had acted within its authority in affirming the building By way of further explication of what "incidental" inspector's denial of a permit to build the second and "customarily" mean as they bear on the zoning hangar and the extension to the first hangar. I t classification of"accessory use," the court said that "incidental" meant the use was subordinate and minor in significance. Harvard v. Maxant, 360 FN10. Homor, Massachusetts Municipal Mass. at 438, 275 N.E.2d 347. "Incidental" also Profiles 2002-2003, at 279 (Information incorporates the idea of subordinate to the primary Publications 2002). The population of use (in this case a dwelling) and in reasonable Southborough in 1990 was 6,628 and in relation to the primary use. Ibid. See Lawrence v. 2000 was 8,781.Ibid. Zoning Bd. of Appeals of N. Branford, 158 Conn. 509, 512-513, 264 A.2d 552 (1969), to which the FNI1. Of course, a community may adopt ©2006 Thomson/West.No Claim to Orig.U.S.Govt.Works. 'nttp://web2.westlaw.coni/print/printstream.aspx?sv=Split&rs=WLW6.09&prf=HTMLE&fn= top&destinati... 10/2/2006 Page 9 of 13 796 N.E.2d 439 Page 8 59 Mass.App.Ct.427,796 N.E.2d 439 (Cite as: 59 Mass.App.Ct.427,796 N.E.2d 439) zoning by-law provisions that allow The trial judge, who found as a fact that the airstrips and hangars, most likely subject to neighbors knew about the use of the structure built special permit. Southborough, as noted, from the inception of the process, correctly ruled does not currently have such a provision. that the challenge to the fust hangar was barred by the permit-related six-year limitations period in **447 [6] 4. Status of hangar built in 1984. Not G.L. c.40A, § 7. until March 11, 1996, did neighbors of Garabedian ask the building inspector to enforce the zoning law [7][8] 5. Status of airstrip constructed in 1984. (see G.L. c. 40A, § 7) by requiring Garabedian to Neither by the definition of structure in the remove the hangar he had completed in 1985 and Southborough by-law, nor that furnished in case had used for the intervening eleven years. The law, see Williams v. Inspector of Bldgs. of Belmont, building inspector declined to do so on the ground, 341 Mass. 188, 190-191, 168 N.E.2d 257 (1960), as he put it, that the statute of limitations had was the airstrip a structure. The airstrip, therefore, expired.The board of appeals affirmed that action. does not enjoy the benefit of the ten-year limitations period under G.L. c. 40A, § 7, for structures erected Section 7 of G.L. c. 40A, inserted by St.1975, c. without a permit. See Lord v. Zoning But. of 808, § 3, provides that "if real property has been Appeals of Somerset, 30 Mass.App.Ct. 226, -228, improved and used in accordance with the terms of 567 N.E.2d 954(1991). the original building permit issued by a person duly authorized," no action shall lie to seek " [9] The town does not challenge the existence or abandonment, limitation or modification of the use use of the existing airstrip, but the neighbors do. allowed" by such a permit, unless commenced As against them, Garabedian raised the defense of within six years of the alleged violation of law. laches. The trial judge found that the neighbors Within a month of filing his building permit had slept on their rights for eleven years before application, Garabedian had furnished the building filing a complaint, and that Garabedian has changed *437 inspector with approvals of the FAA for his position by improving and maintaining his airstrip airstrip.That was on November 7, 1984. and buying airplanes to use on it. To that degree, the inactivity of the neighbors contributed to a Gambedian's neighbors eHtz complain that they prejudicial change of position by Garabedian. The were deceived because his building was described elements of laches are present. See *438West on the building permit as a "barn," the term that the Broadway Task Force v. Boston Hous. Authy., 414 building inspector chose. Given the Mass. 394, 400, 608 N.E.2d 713 (1993); Myers v. accompaniment of FAA materials, any person Salin, 13 Mass.App.Ct. 127, 137-140, 431 N.E.2d inspecting the building permit documents would not 233 (1982); Feinzig v. Ficksman, 42 Mass.App.Ct. have supposed the bam was for animals. They 113, 118, 674 N.E.2d 1329 (1997). The findings would know that the bam was for the storage of of fact as to laches by the trial judge,when based on things mechanical, a purpose consistent with one of oral evidence, will not be disturbed by a reviewing the lexical definitions of a bam. See Webster's court unless clearly erroneous. Myers v. Salin, Third New Intl. Dictionary 177 (1993). Certainly supra at 138, 431 N.E.2d 233. There is no such the taking off and landing of airplanes, which error here. preceded and followed construction of the hangar, served notice to the neighbors what permission had **448 [10] 6. Expansion of the airstrip. By parity been granted, even without reference to documents of reasoning to our earlier discussion of whether the on file at town hall. hangar was customarily incidental to the primary residential use, the airstrip expansion does not qualify as an accessory use. FN12. In terms of this litigation, the only neighbors involved are Johnston and Conclusion. In the declaratory judgment action, the Westland. judgment is vacated and a new judgment shall enter ©2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&rs=WLW 6.09&prft=HTMLE&fn=_top&destinati... 10/2/2006 Page 10 of 13 796 N.E.2d 439 Page 9 59 Mass.App.Ct.427,796 N.E.2d 439 (Cite as: 59 Mass.App.Ct.427,796 N.E.2d 439) dismissing the action against all defendants on the Image of this Document with Appendix(PDF) ground of mootness. (See note 3, supra.) The judgment and order in that case awarding attorney's END OF DOCUMENT fees and costs to Westland and Johnston under G.L. c. 231, § 59H, are also vacated. We affirm judgments denying enforcement relief as to the existing airstrip and the existing hangar; affirming the decision of the board of appeals of Southborough to deny a permit for construction of a second hangar; and affirming the decision of the board of appeals of Southborough to deny a permit for construction of the proposed extension to the existing hangar. So ordered. Mass.App.Ct.,2003. Garabedian v.Westland 59 Mass.App.Ct.427,796 N.E.2d 439 Briefs and Other Related Documents(Back to top) • 2003 WL 23930027 (Appellate Brief) Brief of the Defendant-Appellee, Mary Westland (Apr. 11, 2003)Original Image of this Document(PDF) • 2002 WL 32758161 (Appellate Brief) Brief of the Defendant-Appellee, Mary Westland (Apr. 11, 2002)Original Image of this Document(PDF) • 2002 WL 32758168 (Appellate Brief) Brief of Defendant-Appellee Michael Johnston (Apr. 05, 2002) Original Image of this Document with Appendix(PDF) • 2002 WL 32758189 (Appellate Brief) Brief of Defendant-Appellee Michael Johnston (Apr. 05, 2002) Original Image of this Document with Appendix(PDF) • 2001 WL 34721627 (Appellate Brief) Brief of Defendant/Appellee Town of Southboro Zoning Board of Appeals (Dec. 28, 2001) Original Image of this Document(PDF) • 2001 WL 34721643 (Appellate Brief) Brief of Defendant/Appellee Town of Southbom Zoning Board of Appeals (Dec. 28, 2001) Original Image of this Document(PDF) • 2001 WL 34721633 (Appellate Brief) Brief of Plaintiff - Appellant (Nov. 30, 2001) Original Image of this Document with Appendix(PDF) • 2001 WL 34721638 (Appellate Brief) Brief of Plaintiff - Appellant (Nov. 30, 2001) Original ©2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. littp:Hweb2.westlaw.com/print/printstream.aspx?sv=Split&rs=WLW6.09&prft=HTMLE&fn— top&destinati... 10/2/2006 Page 2 of 11 431 N.E.2d 213 Page 1 385 Mass.205,431 N.E.2d 213 (Cite as:385 Mass.205,431 N.E.2d 213) P show lounge currently occupying space of former frolic room; (3) permission to operate present Supreme Judicial Court of Massachusetts, ground floor facilities could not be implied from Barnstable. variance from parking lot granted to prior owners; CAPE RESORT HOTELS,INC. (4) use of annex to house hotel guests was change in V. prior nonconforming use and would not be ALCOHOLIC LICENSING BOARD OF permitted by bylaws; and (6) injunctive relief FALMOUTH et al.[FNlj granted was overly broad. Reversed and remanded. FNl. The other defendant is the building inspector of Falmouth. West Headnotes (and a companion case [FN21). [11 Zoning and Planning 414 4D-328 FN2. Falmouth Heights-Maravista 414 Zoning and Planning Improvement Association & others vs. 414VI Nonconforming Uses Robert Johnson & another. The other 414028 k. Particular Cases as Involving Plaintiffs are twelve named individual Change of Use.Most Cited Cases residents of the town of Falmouth; the Where hotel was at one time a full-service resort other defendant is Cape Resort Hotels,Inc. hotel whose primary purpose was to provide Argued Oct. 8, 1981. lodging, meals and entertainment for overnight Decided Feb. 5, 1982. guests and in recent years, management has presented hotel to public as largest entertainment In first action hotel sought declaratory judgment complex on Cape Cod and hotel had been built as establishing its right to serve liquor without food or three clubs under one roof with aim of attracting with hors d'oeuvres only and to offer live public in large numbers, and where current use of entertainment in certain section of its main building hotel property had effect on neighborhood " and in second action, 12 residents of town and different in kind" from effect of prior use, operation association of residential property owners where of hotel was a change in use so that current hotel was located sought to enjoin present operation operation of hotel was no longer protected under in building and two related buildings on ground that zoning bylaw as valid continuation of 1926 use of building was in violation of relevant sections nonconforming use.M.G.L.A.c.40A, § 6. of zoning bylaw and also sought order directing building inspector to enforce zoning bylaw. The [21 Zoning and Planning 414 C-327 Superior Court, Travers, J., consolidated cases for trial and found certain uses were impermissible 414 Zoning and Planning extension or changes of prior nonconforming use, - 414VI Nonconforming Uses and hotel and association appealed. The Supreme 414k327 k. Continuance or Change of Use in Judicial Court, Lynch, J., held that: (1) current General. Most Cited Cases operation of hotel was no longer protected by Where show lounge currently occupying space of zoning bylaw as valid continuation of 1926 prior frolic room was being used for same purpose nonconforming use; (2) building permits and as its predecessor, i.e., afternoon "happy hours" and variance granted to prior owners of hotel did protect dancing, drinking, and entertainment in the evening, ©2006 Thomson/West.No Claim to Orig, U.S.Govt. Works. lttp://web2.westlaw,com/print/printstream.aspx?sv=Split&destination=atp&prid=A0055 8000000606800047... 10/3/2006 Page 3 of 17 431 N.E.2d 213 Page 2 385 Mass.205,431 N.E.2d 213 (Cite as:385 Mass.205,431 N.E.2d 213) space was "used in accordance with the terms of the 414 Zoning and Planning original building permit" and thus, was in 414VI Nonconforming Uses accordance with permit granted previous owners 414k336 Discontinuance or Abandonment and passage of over six years since use allowed by 414k336.1 k. In General.Most Cited Cases these permits barred action to limit current use of (Formerly 4141:336) frolic room; however, fact that open portion on Sale of property protected as nonconforming use ground floor was enclosed pursuant to 1956 does not by itself establish an abandonment of that building permits and for purpose of enlarging inside use. floor area did not protect entire present use of hotel's ground floor. [71 Zoning and Planning 414 4D-336.1 [31 Zoning and Planning 414 X546 414 Zoning and Planning 414VI Nonconforming Uses 414 Zoning and Planning 414k336 Discontinuance or Abandonment 414DC Variances or Exceptions 414336.1 k. In General.Most Cited Cases 414IX(B)Proceedings and Determination (Formerly 414336) 414k546 k. Effect of Determination. Most Where lodge had at all times been used for Cited Cases commercial housing of guests, there was no Permission to operate present ground floor facilities discontinuance of nonconforming use so that lodge in hotel used primarily for entertainment could not would lose its protection as nonconforming use be implied from variance for parking lot granted to under town zoning bylaw, notwithstanding change prior owner of hotel in 1969 by town board of within ownership. appeals.M.G.L.A.c.40A, § 6. [81 Zoning and Planning 414 X338 [4]Zoning and Planning 414 X336.1 414 Zoning and Planning 414 Zoning and Planning 414VI Nonconforming Uses 414VI Nonconforming Uses 4141:336 Discontinuance or Abandonment 414336 Discontinuance or Abandonment 414038 k. Change of Use. Most Cited 414336.1 k.In General.Most Cited Cases Cases (Formerly 414k336) Where annex to hotel had been used as dormitory Under town zoning bylaw to effect that when a for hotel employees and was now used as nonconforming use has been discontinued for accommodations for paying guests of hotel, prior period of one year, it shall not be reestablished, the nonconforming use of annex was lost by word "discontinued" is the legal equivalent of abandonment and current use to house guests of abandoned." hotel was in violation of town zoning bylaws. [51 Zoning and Planning 414 X336.1 [91 Zoning and Planning 414 X762 414 Zoning and Planning 414 Zoning and Planning 414VI Nonconforming Uses 414XI Enforcement of Regulations 414336 Discontinuance or Abandonment 414XI(A)In General 414336.1 k. In General.Most Cited Cases 414062 k. Defenses to Enforcement. (Formerly 4141:336) Most Cited Cases An abandonment of nonconforming use results from Even where it has been a substantial financial concurrence of intent to abandon and voluntary investment, laches or estoppel is not defense to conduct which carries implication of abandonment. action to enforce municipalities' bylaws or zoning ordinances. 161 Zoning and Planning 414 X336.1 ©2006 Thomson/West.No Claim to Orig. U.S. Govt.Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&destination=atp&prid=A00558000000606800047... 10/3/2006 Page 4 of 17 431 N.E.2d 213 Page 3 385 Mass.205,431 N.E.2d 213 (Cite as:385 Mass.205,431 N.E.2d 213) [101 Zoning and Planning 414 X762 and is known as the "Brothers Four." The appeal consists of two actions which were consolidated for 414 Zoning and Planning trial. In the first action, Cape Resort seeks a 414XI Enforcement of Regulations declaratory judgment establishing its right to serve 414XI(A)In General liquor without food or with hors d'oeuvres only and 414k762 k. Defenses to Enforcement. to offer live entertainment in a certain section of its Most Cited Cases main building. In the second action, twelve Where neither dramatic changes in nonconforming residents of Falmouth and an association of use of hotel's ground floor space nor changes of residential property owners from the Falmouth annex were specifically approved by official Heights area of Falmouth where the Brothers Four charged with enforcing town zoning bylaws, laches is located (hereinafter collectively known as "the and estoppel provided hotel with no defense to association') seek to enjoin the present operation of enforcement of zoning bylaws. the main building and two related buildings on the ground that the use of these buildings is in violation 1111 Zoning and Planning 414 X790 of relevant sections of the zoning by-law. The plaintiffs in the second action also seek an order 414 Zoning and Planning directing the building inspector of Falmouth to 414XI Enforcement of Regulations enforce the zoning *207 by-law with respect to 414XI(B)Injunction Against Violation Cape Resort's facility. The building inspector 414k790 k. Trial, Judgment, and Relief included in his answer a cross-complaint against Most Cited Cases Cape Resort**215 by which he seeks to enjoin Injunction enjoining hotel "from using those Cape Resort from operating the Brothers Four and portions of ground floor facilities known as the its outbuildings in a manner which violates the Disco Room * * * the Pub, and the Game Room for zoning by-law.[FN3] the purposes of selling or providing alcoholic beverages, providing live entertainment, providing recorded music and dancing, and providing coin FN3. It could be argued that the Superior operated machines such as pinball machines and Court lacked jurisdiction to bear the action billiard tables" as changes in prior nonconforming brought by the Falmouth residents and use was overly broad inasmuch as when hotel neighborhood property owners. See became nonconforming use, drinking, music, and McDonald's Corp. v. Seekonk, -- dancing were offered to some extent in some of Mass.App. -- Mass.App.Ct.Adv.Sh. areas covered by injunction. (1981) 1508, 424 N.E.2d 1136; William C. Bearce Corp. v. Building Inspector of Brockton, -- Mass.App. **214 *206 Michael D. Kelly, Watertown, for Cape Mass.App.Ct.Adv.Sh. (1981) 286, 416 Resort Hotels,Inc. N.E.2d 509; Neuhaus v. Building Edward W. Kirk, Falmouth (Edward W. Farrell, Inspector of Marlborough, -- Mass.App. --, Town Counsel, Falmouth, with him), for Falmouth Mass.App.Ct.Adv.Sh. (1981) 161, 415 Heights Maravista Improvement Ass'n and another. N.E.2d 235. It seems clear, however, that a landowner Before HENNESSEY, C. J., and WILKINS, in doubt about the propriety of the use of LIACOS and LYNCH,JJ. his property under a zoning by-law may LYNCH,Justice. seek declaratory relief (as Cape Resort did This appeal involves the legality, as a in the first action) without making a nonconforming use under the zoning by-law of the demand on the building inspector under town of Falmouth, of the current operation of a G.L. c. 40A, s 7. Furthermore, since the resort facility located in that town. The facility is answer of the building inspector in the owned by Cape Resort Hotels, Inc. (Cape Resort), landowners' action and his cross-complaint ©2006 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&destination=atp&prid=A00558000000606800047... 10/3/2006 Page 5 of 17 431 N.E.2d 213 Page 4 385 Mass.205,431 N.E.2d 213 (Cite as:385 Mass. 205,431 N.E.2d 213) in the second action sought a judicial summer hotels. While there are still many private determination of the rights of Cape Resort homes, the area now includes a significant number under its nonconforming use and requested of guest houses and rental properties, some of that Cape Resort be enjoined from which have been rented in recent years to groups of engaging in any act in violation of the unrelated persons. From 1926, when zoning was Falmouth zoning by-law, all issues raised adopted in Fahnouth, until the mid-1950's the in the second action are properly before us Terrace Gables functioned as a traditional, and it is, therefore, unnecessary to reach full-service summer resort hotel for a mostly the issue of the right of the neighbors to middle-aged and older clientele. Guests were met maintain their action. It should be noted at the train or bus station by hotel personnel and that this issue of the neighbors' right to stayed at the hotel for periods ranging from a week maintain an action in their own names is to the entire season. The ground-floor layout not argued before us and apparently was included a dining room, kitchen, lobby and reading not pressed in the Superior Court. area, sitting and television room, and porch. There were also a few guest rooms behind the lobby. The A judge of the Superior Court heard oral testimony, hotel offered three meals a day on an American or reviewed written evidence, and took a view of the European plan. The dining room was also open to hotel premises. He made extensive findings of fact the public. A wide variety of food was cooked and on the past and present operation of the buildings served on the premises. Guests were required to " owned by Cape Resort. He then held that (1) the dress" for dinner. There were no separate bars or current use of the ground floor facilities of the cocktail lounges, although drinks were available in Brothers Four was an impermissible extension or the dining room [FN4] at tables and at a small bar change of a prior nonconfomting use, (2) the use on one side of the dining room. A piano player or made of that portion of the ground floor known as trio occasionally provided music during the dinner the "frolic room" was nevertheless protected by the hour. A range of entertainment was provided in the provisions of G.L. c. 40A, s 7, (3) the use of a **216 evenings. These activities, including cards, building called the "lodge" was a lawful prior bingo, and movies, were generally concluded by nonconforming use, and (4) a building known as the *209 10 P.M. After the dinner hour most of the "annex" could lawfully be used to house employees people on the hotel property were hotel guests. The of the hotel but not to lodge hotel guests. The judge hotel occasionally sponsored dances and concerts found both mandamus and injunctive relief to be which would run until 1 A.M. Cocktails were appropriate. Both Cape Resort and the association available at these functions and the public was have appealed. We *208 find no error in the welcome. The hotel served as "a center of social judge's rulings but remand for reconsideration of the life on the Heights." scope of the injunctive relief granted. We review the facts concerning the main building FN4. There was no allegation that the hotel of Cape Resort's facility (hereinafter "the hotel") as has not always had the proper liquor found by the judge. Facts relative to the buildings licenses (except during prohibition when known as the "lodge" and the "annex" will be no licenses were issued). outlined in our discussion of the legal issues raised by their use. The 1950's and 1960's were a period of transition for the hotel. There was a change in management The hotel was built before the tum of the century and more advertising to encourage nonguests to and was known, until relatively recently, as the " patronize the hotel for dining, dancing, cocktails, Terrace Gables." It is located in the Falmouth and entertainment. The effort to attract the public Heights section of Falmouth. Falmouth Heights was also reflected in changes made in the physical was originally a neighborhood of mostly layout. In the early 1950's, a small cocktail lounge single-family summer homes with a smattering of was built from a part of the dining room. In 1954, ©2006 Thomson/West.No Claim to Orig.U.S. Govt.Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&destination=atp&prid=A005 5 8000000606800047... 10/3/2006 Page 6 of 17 431 N.E.2d 213 Page 5 385 Mass. 205,431 N.E.2d 213 (Cite as: 385 Mass.205,431 N.E.2d 213) the outside porch was enclosed to create additional morning for breakfast and in the evening for light interior space. The former reading area became a food. The ground floor also contains a "game room coffee shop in 1960 and lunch was no longer served " with electronic games, drinks, and room for in the dining room. The hotel moved to a modified forty-eight people. In addition to the regular American plan for food. A cocktail lounge called " schedule of entertainment, the management club 46" was opened. It offered a "happy hour" advertises a variety of special events including, for and music and dancing on weekends until midnight. example, summer Halloween and New Year's Eve In 1962, the ground-floor guest rooms were parties, "beat the clock" nights during which drinks removed, the coffee shop was converted into a become progressively more expensive, and cocktail lounge, club 46 was closed, and a new " audience participation shows such as a "gong show," frolic room" was created and later enlarged. The "creative goldfish eating" and pie eating contests, judge found that the frolic room became "the and talent shows, for which the winners are awarded principal focus of entertainment for guests and the prizes. Tickets for these special events are public." distributed at closing time and on the beaches during the day. Large numbers of young people came to the frolic room for a late afternoon "happy hour" and for The judge made factual findings on parking dancing and entertainment in the evening. Traffic facilities, number of employees, and the income and parking problems developed and there was a generated by the hotel. These figures show that significant amount of noise at closing time. A there are an estimated 104 to 175 parking spaces variance was granted in 1969 for the creation of a available for over 100 guests, 40 to 60 employees, parking lot. A fee was charged to all except guests and a potential holiday weekend crowd of over 800 of the hotel. In 1970, there was another change in people. As very little parking is allowed on management. The clientele attracted to the hotel neighborhood streets, there have been some became increasingly younger and control problems problems with patrons parking on private land. increased. Information on the distribution of hotel employees **217 suggests that the bulk of them are employed The current management, Cape Resort, bought the as waiters, waitresses, and bartenders. Only four or hotel in 1971. With very few structural changes, five are employed to prepare food. The income Cape Resort has developed the hotel's entertainment figures for the *211 years 1971-1977 show steadily offerings to such an extent that it describes the hotel increasing revenues overall but steadily decreasing in its advertising as "the largest *210 entertainment revenues from room rentals. (FN5] In each year complex on Cape Cod" and "Three Clubs under from 1971 to 1977 for which appropriate figures are One Roof" The "three clubs" are the "pub," the " available, charges for liquor and admission show lounge," and the "disco." The pub (in what accounted for sixty to eighty percent of the overall was once the reading area) has a bar, jukebox, revenues generated by the hotel. Prices for food, games, and live music in the evenings. It can drinks, and admission have increased much faster accommodate 89 people and is open until 1 A.M. than charges for rooms, although the judge took The show lounge is the former frolic room. In note of the fact that the rooms are old-fashioned, 1979-1980, it was only open on weekends. It has and low rates may be necessary to achieve an two bars, a dance floor, and a stage and can hold acceptable occupancy rate. 382 people. The show lounge features entertainment, musical groups, and dancing. The disco is what was once the dining room. It has a FN5. As the judge pointed out, at the dance floor and three bars and features complex occupancy rate and room charges named light displays and sound equipment controlled by a " by Cape Resort, the revenue from room disc jockey." Three hundred and sixty-four people rentals should have been much higher than can be accommodated for dancing and drinking. it actually was. This discrepancy led the Under the name "club car" the disco is open in the judge to question whether the hotel aspect ©2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&destination=atp&prid=A005 5 8000000606800047... 10/3/2006 Page 7 of 17 431 N.E.2d 213 Page 6 385 Mass.205,431 N.E.2d 213 (Cite as: 385 Mass.205,431 N.E.2d 213) of the operation was being deliberately or premises which, at the time of the maintained despite its limited financial adoption of this by-law, is being put to a return or even whether the income figures non-conforming use may continue to be had been rearranged to conceal how used for the same purpose." Zoning unprofitable certain aspects of the hotel By-Laws of the Town of Falmouth, s 18 operation had become. (amended through July 1, 1975). Finally, the judge found that complaints generated Bridgewater v. Chuckran, 351 Mass. 20, 217 by the operation of the Brothers Four related N.E.2d 726 (1966), sets out the three tests this court primarily to noise at closing time, especially on has adopted to determine whether a current use of weekends, and parking problems. Although property is a protected nonconforming use: "(1) management has made efforts to control the crowds, Whether the use reflects the `nature and purpose' closing time is frequently marked by loud talk, of the use prevailing when the zoning by-law took laughing, some fights, and considerable traffic effect.... (2) Whether there is a difference in the noise. Thus, even though control problems are less quality or character, as well as the degree, of use.... severe than they were in the 1960's, neighbors are (3) Whether the current use is `different in kind in still sometimes awakened or kept awake until 2 or 3 its effect on the neighborhood.' " (Citations A.M. These problems are affected by the fact that omitted.) Id. at 23, 217 N.E.2d 726, quoting from the neighborhood contains two establishments Massachusetts Broken Stone Co. v. Weston, 346 which attract a clientele similar to, although smaller Mass. 657, 662, 195 N.E.2d 522 (1964), and than, that of the Brothers Four. Guest houses in the Medford v. Marinucci Bros. & Co, 344 Mass. 50, area also add to the general outdoor activity. 60, 181 N.E.2d 584 (1962). The property owner bears the burden of proving the requisite similarity [1] 1. Ground-floor hotel entertainment facilities. between the current use and the original All parties, and the judge, agree that in 1926 the nonconforming use. Bridgewater v. Chuckran, hotel was a nonconforming use under the original supra 351 Mass. at 24, 217 N.E.2d 726. The facts Falmouth zoning by-law.[FN6] Therefore, as a found by the judge support his conclusion that the prior nonconforming use, the hotel is *212 not in current use of the hotel satisfies none of the three violation of the by-law.[FN7] The primary question standards. presented by these appeals is whether there has been such a "change or substantial extension" of The nature and purpose of the use made of the that use that the current operation of the hotel is no hotel's facilities have changed dramatically. In longer protected under G.L. c. 40A, s 6, and s 18 of 1926, the property was operated**218 as a the Falmouth zoning by-law, as a valid continuation full-service resort hotel whose primary purpose was of the 1926 nonconforming use. We agree with the to provide lodging, meals, and entertainment for judge that there has been such a change. overnight guests. In recent years, by contrast, management has presented the hotel to the public as "the largest entertainment complex on Cape Cod." FN6. Cape Resort and the association The hotel has been billed as "Three Clubs under stipulated that, at all times between 1926 One Roof' with the aim of attracting the public in and the present, the hotel has been located large numbers. The change is comparable*213 to in an area zoned residential. The record that in Bridgewater v. Chuckran, supra, where does not reveal the exact manner in which property formerly used in connection with a house the hotel failed to conform to the 1926 building business became the site of a concrete by-law. manufacturing and supply business. This court found a change in the nature and purpose of the use FN7. Section 18 of the Falmouth zoning where the mixing of concrete had been transformed by-law reads as follows: "Non-Conforming from a "merely incidental" aspect of the general Uses. (a) Any building, part of a building construction business to a major enterprise in which ©2006 Thomson/West,No Claim to Orig.U.S.Govt. Works, http://web2.westlaw.com/print/printstreatn.aspx?sv=Split&destination=atp&prid=A00558000000606800047... 10/3/2006 Page 8 of 17 431 N.E.2d 213 Page 7 385 Mass. 205,431 N.E.2d 213 (Cite as: 385 Mass.205,431 N.E.2d 213) the sale of concrete to others dominated. Id. 351 See, e.g., Jasper v. Michael A. Dolan, Inc., 355 Mass. at 23, 217 N.E.2d 726. In Wellesley v. Mass. 17, 242 N.E.2d 540 (1968) (change from sale Brossi, 340 Mass. 456, 164 N.E.2d 883 (1960), the of beer and wine in connection with food store to prior nonconforming use of the property in question sale of all alcoholic beverages in was the incidental storage of materials and separately-conducted package store); Hinves v. equipment in connection with the resident's parttime Commissioner of Pub. Works of Fall River, 342 masonry work. The court found that the storage of Mass. 54, 172 N.E.2d 232 (1961) (catering service a large amount of material in connection with a involving cooking and preparation of food is use fulltime masonry and general building business was different in quality from operation of a grocery not a continuation of, but rather a change in the store). character and purpose of, the prior nonconforming use.Id. at 465, 164 N.E.2d 883. Cape Resort's reliance on the rule that a mere increase in the volume of business done does not In the case now before us, lodging and meals have constitute a change in use is misplaced. While it is been supplanted as the dominant business of the true that a use is not different in kind simply hotel by fully developed entertainment facilities because it is bigger, Building Comm'r of Medford designed especially to attract crowds of young v. McGrath, 312 Mass. 461, 462, 45 N.E.2d 265 people. The judges description of the current (1942), the increased use must be attributable to situation is apt: "this enterprise is much less a hotel growth of the original nonconforming use in order with entertainment facilities present for its guests to fall within the rule. Kreger v. Public Bldgs. and the public, than it is an entertainment complex Comm'r of Newton, 353 Mass. 622, 627, 234 with some guest rooms." N.E.2d 283 (1968). Even where the facility in which a business is conducted remains the same, a A comparison of the 1926 and current uses of the significant increase in activity caused by a change hotel demonstrates a fundamental difference in "the in operating procedures will not be protected. Id. quality or character, as well as the degree, of use." In the Kreger case, the increased business**219 Bridgewater v. Chuckran, supra 351 Mass. at 23, followed a change from a retail to a wholesale fuel 217 N.E.2d 726. The same space which formerly oil operation. In the case of the hotel, the increased housed a dining room, reading room, guest rooms, activity followed a shift in emphasis from lodging and lobby now houses seven bars distributed among and meals to night entertainment. As in Kreger, this three "clubs" and a game room. A kitchen equip was more than a growth in business; it was a ped to prepare large quantities of food for diners substantive change in use. who ate in the dining room has been scaled down to a small, short-order operation not much greater than Cape Resort argues that the changes that have been that found in many households and staffed by only made in the hotel's ground-floor entertainment three or four employees. A predominately offerings merely reflect changes in public tastes in middle-aged and older clientele has been displaced the years between 1926 and the present and that a by young people who are encouraged to patronize disco and electronic game room are, in effect, the hotel for its bars and nightlife. While the hotel modem equivalents of dances in the hotel lobby and has always served liquor, it was formerly served bingo. It is true that a valid nonconforming use only in the dining room and at occasional dances. does not lose that status merely because it is Now the sale of liquor accounts for sixty to seventy improved and made more efficient. Berliner v. percent of the hotel's revenues and is a central focus Feldman, 363 Mass. 767, 775, 298 N.E.2d 153 of the hotel's entertainment facilities. While hotel (1973). Wayland v. Lee, 325 Mass. 637, 643, 91 guests and the public were offered bingo, cards, N.E.2d 835 (1950). Such changes are permissible, movies, and dances in the lobby in 1926, today's however, only if they are "ordinarily and reasonably guests are offered a choice among three nightclubs. adapted to the original use and do not constitute a Changes far less drastic than these have been held change in the original nature and purpose of the to constitute impermissible differences in quality. undertaking." Berliner v. Feldman, supra. The ©2006 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstrearn.aspx?sv=Split&destination=atp&prid=A0055 8000000606800047... 10/3/2006 Page 9 of 17 431 N.E.2d 213 Page 8 385 Mass. 205,431 N.E.2d 213 (Cite as: 385 Mass.205,431 N.E.2d 213) facts found by the judge (which are amply supra (change of name in telephone listing and on supported by the evidence) indicate that the vehicles of business supported finding of change in expansion and updating of the hotel's activities were use). not adapted to the original nonconforming use. Thus the shift from hotel to "entertainment Finally, it is clear that the judge was correct in complex" constitutes a change in the nature and finding that the current use of the hotel property has purpose of the undertaking. This transformation of an effect on the neighborhood "different in kind" the hotel cannot be justified as "modernization" to from the effect of the use in 1926. Even when accommodate a changed society. allowance is made for the limited use of automobiles in 1926, it is clear that the Cape Resort urges us to conclude that the development of the hotel as a nighttime entertainment facilities in question are a permissible entertainment center capable of accommodating aspect of the hotel business. In support of this over 800 people has caused traffic and noise claim it cites cases such as Goff v. Fowler, 3 Pick. problems wholly different from those which would 300 (1826), and Bennett v. Inspector of Bldgs. of be generated by a business run primarily as a hotel. Cambridge, 270 Mass. 436, 170 N.E. 412 (1930). The change in effect on the surrounding area is Both of these cases involved issues of statutory sufficiently illustrated by the findings that nearby construction and not the issue whether a hotel's residents are sometimes kept awake until 2 or 3 status as a valid nonconforming use is affected by a A.M. and that management has found it advisable to significant growth in entertainment offerings. The station up to twelve employees outside**220 the question in Goff was whether a building near an inn hotel at closing time to direct traffic and promote was a "dependency" of the inn (under a statute order. The findings, therefore, fully support the regulating liquor licenses) and therefore covered by judge's conclusion that, under all three of the tests the irui s liquor license. In Bennett a property reviewed in Bridgewater v. Chuckran, supra, Cape owner had been granted a permit to erect a hotel Resort has failed to sustain its burden of proving which contained a banquet hall and the issue was that the operation of the hotel is not a change in use. whether the hall was authorized by a provision of the relevant zoning by-law which permitted " [2] 2. Effect of building permits and variance accessory" buildings to be used for "business ... granted to prior owners of hotel. Cape Resort also customarily incidental to the building of which it is contends that the present use of the hotel's an accessory." Bennett, supra at 441, 170 N.E. 412. ground-floor facilities is protected by the statute of In any event it is clear that the sale of alcohol in limitations contained in G.L. c. 40A, s 7.[FN8] The Goff and the banquet hall in Bennett were found to claim is that the current use of the hotel is in be incidental to the primary use of the property as a accordance with certain permits granted to previous hotel. As the judge's findings in the instant case owners and that the passage of over six years since demonstrate, both the current operation of the the use allowed by these permits commenced bars Brothers Four and the advertising suggest that any action to limit the current use. The facts on lodging and food service at the hotel have become " which this claim rests are as follows. In 1956, the dependencies" of the primary use as an hotel's owner received a permit to enclose an open entertainment complex. It could hardly be porch on one comer of the hotel. The application maintained that the current operation of the for the permit states only that the owner proposes to ground-floor entertainment facilities, together with enclose a porch. There is no indication as to the the minimal sale of food and lodging, is "common reasons or need for the change. In 1961, a further in the conduct of hotels." Bennett v. Inspector of building permit was granted. The application for Bldgs. of Cambridge, supra 270 Mass. at 444, 170 this permit states that the owner "propose(s) to add N.E. 412. Support for this conclusion can be found 21' X 43' to side of present hotel & remodel a in the fact that Cape Resort has adopted the name portion of interior." When it was completed, this Brothers Four rather than Tenace Gables Hotel or addition housed the frolic room. It now houses the Cape Resort Hotel. Cf. Bridgewater v. Chuckran, show lounge. ©2006 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&destination=atp&prid=A0055 8000000606800047... 10/3/2006 Page 10 of 17 431 N.E.2d 213 Page 9 385 Mass.205,431 N.E.2d 213 (Cite as: 385 Mass.205,431 N.E.2d 213) FNB. The original version of this statute of We agree with the judge that the meaning of "the limitations was passed in 1970 and was original building permit" is not as narrow as the found in G.L. c. 40A, s 22. See St.1970, c. association suggests. The association's position 678, s 1. General Laws c. 40A, s 7, which rests largely on an erroneous interpretation of the was part of a new c. 40A passed in 1975, words "real property," in the phrase "if real see St.1975, c. 808, s 3, reads in pertinent property has been improved and used in accordance part (with former s 22 language in with the terms of the original building permit," as brackets): "(I)f real property has been including only raw land. "Real property," however, improved and used in accordance with the has always comprised both land and buildings. terms of the original building permit, ... no Bates v. Sparrell, 10 Mass. 323, 324 (1813) (" action .... the effect or purpose of which is things real are lands, tenements, and hereditaments" to compel the abandonment, limitation or (citing Blackstone)). Furthermore, the phrase "use modification of the use (contemplated) allowed by said permit" is not limited only to a new allowed by said permit ... by reason of any and distinct use to which a new building would be alleged violation of the provisions of this put, as the association would have it. The use may chapter, or of any ... by-law adopted be a new one or it may be the same as the use to thereunder, shall be maintained, unless which an existing structure on the land is being put. such action ... is commenced ... within six Under the association's view of s 7, no alterations of years next after the (issuance of such or additions to existing buildings, even those permit) commencement of the alleged undertaken in accordance with properly issued violation of law." building perrrrits,**221 would be protected by the s 7 statute of limitations. This result conflicts with The judge found that the current use of the original the obvious intent of the Legislature to limit the frolic room is protected under G.L. c. 40A, s 7, time within which building permits could be while the uses being made of the remainder of the attacked as issued in violation of a zoning ground floor of the hotel are not. We agree with regulation. See generally Holmes, Zoning those conclusions. Limitations- Limiting Enforcement of Laws Relating to Buildings, 55 Mass.L.Q. 377 (1970). Well over six years had elapsed between the time The judge correctly interpreted the words "original the frolic room was built in 1961 and the time the building permit" as meaning the fust permit issued association brought its action to compel Cape with respect to a particular improvement of real Resort to limit its use of the space in 1977. Thus, c. property. We need not decide the exact range of 40A, s 7, bars the attempt to enforce the by-law improvements to real property to which the words " with respect to the frolic room if it "has been original building permit" might apply. The frolic improved and used in accordance with the terms of room was clearly such an improvement, and the the original building permit." The association permit authorizing its construction was the "original argues (1) that s 7 has no application to this case building permit"for purposes of our analysis. because `original building permit" is limited to a permit which authorizes the "erection of a new and The "Preliminary Layout" which accompanied the independent building or structure," and that the 1961 application for a permit to build the frolic 1961 permit was not such a permit,[FN9] and (2) room indicated very clearly that the space would that, in any event, the frolic room is not now being include a bar, cocktail lounge, and entertainment used in accordance with the 1961 permit. facilities. Although the record contains only the application for the permit, and not the permit itself, all parties appear to concede that a permit was FN9. The association concedes that there issued, and the judge so found. The show lounge may not have been such a permit for the currently occupying the space is being used for the erection of the original Terrace Gables same purposes as it predecessor, the frolic room, Hotel. was used, i.e., afternoon "happy hours" and ©2006 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&destination=atp&prid=A00558000000606800047... 10/3/2006 Page 11 of 17 431 N.E.2d 213 Page 10 385 Mass.205,431 N.E.2d 213 (Cite as:385 Mass.205,431 N.E.2d 213) dancing, drinking, and entertainment in the evening. refused to attribute any broader significance to the Thus, Cape Resort meets the requirement that the granting of this variance. space be "used in accordance with the terms of the original building permit" G.L. c. 40A, s 7. The [4] 3. Use of the "lodge" to house guests. The judge correctly held that even if this use of the lodge is a small wooden structure located to the rear space was illegal in 1961, under G.L. c. 40A, s 7, of the main hotel building. It contains fourteen the association's action to enjoin that use comes too guest rooms and was used prior to 1962 for housing late. guests of the hotel. The association in effect concedes that this use of the lodge was a valid prior Cape Resort's further contention that G.L. c. 40A, s nonconforming use. In 1962 the lodge was 7, protects the entire present use of the hotel's conveyed to a Mr. and Mrs. Daley. There was ground floor must, however, be rejected. The sole evidence that the Daleys used the lodge as a support for this contention is the fact that an open rooming house. On June 27, 1975, Cape Resort porch on the ground floor was enclosed pursuant to acquired the **222 property and it was used again a 1956 building permit and for the purpose of to accommodate overnight guests of the hotel. The enlarging the inside floor area. Cape Resort association contends that the lodge enjoyed introduced no evidence of the use to which the protection as a nonconforming use only by virtue of enclosed porch was put in 1956. It appears from a its association with the main hotel building and that drawing of the present layout of the hotel's ground it lost that protection when it was separated from floor that the porch no longer constitutes a distinct the hotel and sold in 1962. The association space in the hotel but is simply a part of the game characterizes the 1962 conveyance as an room. In short, Cape Resort did not meet its burden abandonment of the use of the lodge to house hotel of showing that the porch is being "used in guests. Under s 18(d) of the Falmouth zoning accordance" with the permit authorizing its by-law, "when a non-conforming use has been enclosure. Under these circumstances the 1956 discontinued for a period of one year, it shall not be permit cannot serve as the source of any additional re-established ...... The word "discontinued" is the protection for the current use of the hotel. legal equivalent of "abandoned." Pioneer Insulation & Modernizing Corp. v. Lynn, 331 Mass. [3] Finally, it is also clear that permission to operate 560, 565, 120 N.E.2d 913 (1954). the present ground-floor facilities cannot be implied from a variance for a parking lot granted to a prior [5][6][7] We agree with the trial judge that the owner of the hotel in 1969 by the Falmouth board evidence does not establish an abandonment. of appeals. All the hotel's owner requested and all Under our cases an abandonment of a he received in 1969 was permission to use a vacant nonconforming use results from the concurrence of portion of his land for a parking lot, for which fees (1) an intent to abandon and (2) voluntary conduct would be charged. The legality under the zoning which carries the implication of abandonment. law of the activities carried on inside the hotel was Pioneer Insulation & Modernizing Corp. v. Lynn, not before the board of appeals and was not supra. Dobbs v. Board of Appeals of Northampton, necessary to its decision. So far as the board's 339 Mass. 684, 686, 162 N.E.2d 32 (1959). The written decision.reveals, the board assumed only sale of property protected as a nonconforming use that the Terrace Gables Hotel was a permitted does not by itself establish an abandonment of the nonconforming hotel in a residential area. The use. Wayland v. Lee, 325 Mass. 637, 642-643, 91 specific findings supporting the decision to grant N.E.2d 835 (1950). 82 Am.Jur.2d Zoning and the variance related to the inability of the hotel Planning s 181 (1976). See Revere v. Rowe owner to provide adequate parking space for guests Contracting Co., 362 Mass. 884, 885, 289 N.E.2d unless he could build a new lot. The effect of the 830 (1972) ("The right to continue ... a variance was to alleviate parking problems at the nonconforming use after adoption of zoning hotel, not to legalize all uses to which hotel regulations is not personal to the particular owner or buildings were being put. The judge correctly occupant on the effective date of the regulation"). ©2006 Thomson/West.No Claim to Orig.U.S. Govt.Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&destination=atp&prid=A0055 8000000606800047... 10/3/2006 Page 12 of 17 431 N.E.2d 213 Page 11 385 Mass.205,431 N.E.2d 213 (Cite as: 385 Mass.205,431 N.E.2d 213) In this case the lodge has at all times been used for Bridgewater v. Chuckran, 351 Mass. 20, 217 the commercial housing of guests. Furthermore, we N.E.2d 726(1966), and discussed above. find no violation of s 18(c) of the Falmouth zoning by-law, which provides that "(w)herever a non-conforming use has been changed to a more FNIO. Under G.L. c. 40A, s 6, local restricted use or to a conforming use, it shall not zoning by-laws shall apply to "any change again be changed to a less restricted use." The or substantial extension" of a prior judge's conclusion that the changes in ownership nonconforming use. did not produce any material change in the use of the lodge was warranted by the evidence. **223 Although the question is a close one, the evidence warrants the judge's conclusion that a [8] 4. Use of the "annex" to house hotel guests. change in use occurred. Several previous decisions The annex is, like the lodge, a small wooden of this court support this conclusion. In McAleer v. building behind the main hotel. Until 1962 the Board of Appeals of Barnstable, 361 Mass. 317, annex was used as a dormitory for hotel employees. 280 N.E.2d 166 (1972), a nonconforming inn had It was sold in 1962 to Asco Real Estate Trust and been granted a special permit to convert a dormitory was acquired by Cape Resort in 1972. The judge for employees into "motel-like accommodations for found that some time after 1972 the annex was " overnight guests," id. at 322, 280 N.E.2d 166, converted" into accommodations for paying guests under a by-law provision authorizing alterations of of the hotel. He noted, though, that there was no " nonconforming buildings or structures upon the significant evidence ... concerning what, if any grant of such a special permit. A Superior Court alteration or renovations were done to effect this judge annulled the decision to grant this permit conversion." In 1977 Cape Resort applied for and because of the prospective conversion of the received a permit "to repair existing annex due to dormitory "to a type of use different from (the fire damage by replacing damaged area." The original nonconforming use)." Id. at 319, 280 record does not reveal whether the work done N.E.2d 166. This court affirmed, holding that "the pursuant to this permit facilitated the change from occupation by lodgers of what had been employees' employees' quarters to guest accommodations. quarters," id. at 321, 280 N.E.2d 166, was a change There was also no evidence on whether the shift in in use. It is true that in McAleer, structural changes clientele provoked a change in the effect on the were to be made in order to effect the change in use neighborhood. and this court's opinion noted that "a change is proposed not only in the use but also in the nature The association has never challenged the lawfulness of the facilities." Id. at 322, 280 N.E.2d 166. of the use of the annex as an employee dormitory, However, even assuming that in the instant case the and we assume that this use was protected as a lack of evidence of structural changes establishes nonconforming use. At trial the association that there were none,[FNII] we think a change in apparently argued that the prior nonconforming use purpose under s 18(a) of the by-law has been of the annex had been lost by abandonment. All demonstrated. McAleer suggests as much, since that has been shown, however, is that the property physical alterations of a nonconforming structure was sold in 1962. As we held above, a mere change (pursuant to a permit) were clearly authorized by in ownership does not make out an abandonment. the relevant by-law; the issue was whether the physical alterations were desired in order to effect a The remaining issue is whether the change in change in use. lodgers from employees to paying guests is an impermissible change of the nonconforming use. Under s 18(a) of the Falmouth zoning by-law "a FN 11. We note that Cape Resort bore the non-conforming use may continue to be used for the burden of proof on the nonconforming use same purpose." [FNIO] Cape Resort argues that the issue. Wellesley v. Brossi, 340 Mass. 456, current use of the annex meets the tests set out in 460, 164 N.E.2d 883 (1960). Colabufalo ©2006 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&destination=atp&prid=A0055 8000000606800047... 10/3/2006 Page 13 of 17 431 N.E.2d 213 Page 12 385 Mass.205,431 N.E.2d 213 (Cite as: 385 Mass.205,431 N.E.2d 213) v. Public Bldgs. Comm'r of Newton, 332 provision in its zoning by-law for property owners Mass. 748, 751, 127 N.E.2d 564 (1955). in Cape Resort's position. Cape Resort should seek If Cape Resort believed that the absence of its remedy at the local level. structural changes was legally significant, it bore the burden of establishing this fact [9] 5. Laches and estoppel. Cape Resort concedes at trial. in its brief that "prior Massachusetts case law establishes that laches or estoppel is not a defense Furthermore, the change in use of the annex is to an action to enforce municipalities' by-laws or analogous to the change in use in Lexington v. zoning ordinances." See McAleer v. Board of Bean, 272 Mass. 547, 172 N.E. 867 (1930). It was Appeals of Barnstable, 361 Mass. 317, 322-323, held there that "(t)he use of (a building) ... for the 280 N.E.2d 166 (1972) (laches); Ferrante v. Board commercial purpose of repairing motor vehicles for of Appeals of Northampton, 345 Mass. 158, 162, hire is `substantially different' (under the relevant 186 N.E.2d 471 (1962) (estoppel); Everett v. by-law) from (the prior valid nonconforming) use of Capitol Motor Transp. Co., 330 Mass. 417, 421, it by a person residing on the premises for the 114 N.E.2d 547 (1953) (laches). This is true even purpose of repairing motor vehicles belonging to where there has been a substantial financial him as incidental to his trucking and express investment of the sort Cape Resort alleges occurred business and the occasional permissive use of it by in its own case. McAleer, supra 361 Mass. at 322, persons storing automobiles on the premises." Id. 280 N.E.2d 166. at 553, 172 N.E. 867. In the case of the annex, the building was formerly used as lodgings for [10] Nevertheless, Cape Resort urges us to find that employees, a use incidental to the operation of the the relief sought by the association and the building main building as a hotel. Now the annex is being inspector is barred, citing us to the only decision of operated as a commercial venture in its own this court in a zoning case which appeared to apply right. In effect, Cape Resort has expanded the use a laches theory, Chilson v. Zoning Bd. of Appeals of the annex by adding a new service. Such an of Attleboro, 344 Mass. 406, 409, 182 N.E.2d 535 expansion has been held to constitute a change in (1962). In Chilson, however, the town building use. Jasper v. Michael A. Dolan, Inc., 355 Mass. inspector had approved the landowner's move of a 17, 24, 242 N.E.2d 540 (1968) (addition of hard nonconforming use from one building to another on liquor to store selling beer and wine). See also 1 the same premises, and the move had been R.M. Anderson, American Law of Zoning 2d s 6.46 prompted by the town's relocation of a street. (1976). Furthermore, this court found that the move "was colorably within the exemption applicable to The evidence warranted the judge's conclusion that nonconforming uses." Id. Whatever the exact a change in use of the annex had occurred and that reach of the Chilson holding might be, see McAleer its current use to house guests of the hotel is in v. Board of Appeals of Barnstable, supra 361 Mass. violation of Falmouth's zoning by-law. We note, as at 323, 280 N.E.2d 166, [FN12] it does not cover the judge did, that Falmouth's by-law has been this case. Neither *225 the dramatic changes in the amended since these suits were begun so *224 that nonconforming use of the hotel's ground-floor space nonconforming structures or uses may now be nor the changed use of the annex were specifically extended, altered, changed, or rebuilt if a special approved by an official charged with enforcing the pemrit is obtained from the board of appeals. Falmouth zoning by-law. Furthermore, the Zoning By-Laws of the Town of Falmouth s 1222 development of the hotel as an entertainment (adopted April, 1979). Since the 1979 by-law also complex was not colorably within the exemption provides that hotels are allowed in single residence provided in the by-law for nonconforming uses. districts upon a grant of a special permit (see s Laches and estoppel provide Cape Resort with no 3315(a) ), both s 1222 and s 3315(a) provide defense, and we decline the invitation to overrule avenues by which the current use of the annex might prior cases establishing this rule. be legalized. In short, the town of Falmouth makes ©2006 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&destination=atp&prid=A00558000000606800047... 10/3/2006 Page 14 of 1 431 N.E.2d 213 Page 13 385 Mass.205,431 N.E.2d 213 (Cite as: 385 Mass.205,431 N.E.2d 213) FN12. It was pointed out in Gattozzi v. so holding. No constitutional violation has been Director of Inspection Servs. of Melrose, 6 made out. Mass.App. 889, 890, 376 N.E.2d 1266 (1978), that there is some question whether Cape Resort does appear, however, to have a valid laches is an available defense in actions in complaint with respect to the scope of the injunctive the nature of mandamus to compel a relief ordered by the judge. Cape Resort was building inspector to enforce a zoning enjoined "from using those portions of the ground ordinance. Compare Chilson v. Zoning floor facilities known as the Disco Room ..., the Board of Appeal of Attleboro, 344 Mass. Pub, and the Game Room for the purposes of 406, 409, 182 N.E.2d 535 (1962), with selling or providing alcoholic beverages, providing McAleer v. Board of Appeals of live entertainment, providing recorded music and Barnstable, 361 Mass. 317, 323, 280 dancing, and providing coin operated machines N.E.2d 166 (1972). Since we find that such as pinball machines and billiard tables." The even under Chilson laches would not be a judge specifically found, however, that in 1926, defense in this case, we do not reach this when the hotel became a nonconforming use, issue. In many cases, however, the statute drinking, music, and dancing were offered to some of limitations in G.L. c. 40A, s 7, will extent in some of the areas covered by the make it unnecessary for defendants to rely injunction. on laches or estoppel. It appears, therefore, that the injunction ordered by [11] 6. Constitutional claims and scope of relief the judge was too broad. We remand the cases for granted. Cape Resort argues that the First and reconsideration of the scope of the relief granted in Fourteenth Amendments to the United States light of the scope of the protected prior Constitution and art. 16 of the Declaration of Rights nonconforming use. In fashioning a revised of the Massachusetts Constitution prohibit a court injunction, the judge should seek to ensure that from restricting dancing and music in any Cape Resort operates its facility as a hotel, with nonconforming hotel, whether or not the hotel primary focus on lodging, meals, and entertainment offered entertainment at the time it became a for overnight guests. Any upgrading of the hotel nonconforming use, on the theory that any such which is reasonably adapted to these functions restriction would violate the hotel patrons' and would be permissible. Thus, dining facilities may owners' rights of free speech. On this ground, Cape be open to the public and in conjunction with these Resort challenges the injunction entered against it. facilities music and alcoholic beverages may be The only case cited in support of this proposition is provided. Rooms not used for dining (apart from Commonwealth v. Sees, 374 Mass. 532, 373 N.E.2d the frolic room which draws its protection from 1151 (1978). In Sees this court struck down, solely another source) may be used for recreational under art. 16, a city's application of a local activities ancillary to the hotel use. It would also be ordinance to prohibit topless dancing in a bar. The appropriate for the hotel to hold dances or other opinion of the court emphasized that the ordinance similar events for the general public as long as this as applied in Sees involved town officials in type of activity is merely ancillary to the primary distinguishing protected expression on the basis of use of the property as a hotel furnishing meals and content and that no governmental interest was lodging to overnight guests. In short, the revised shown to warrant the effort. Id. 374 Mass. at 537, injunction should limit Cape Resort's activities to 373 N.E.2d 1151. In this case, there is no those that could be said to *227 have reasonably contention that the zoning by-law of Falmouth has evolved from the basic 1926 use of the property as a been applied for such an impermissible purpose. hotel. Sees neither held nor implied that the owner of a nonconforming*226 hotel has an absolute right to The judgments are reversed and the cases are develop facilities for music and dancing on as large remanded to the Superior Court for the entry of new a scale as he sees fit. Cape Resort points to no case judgments providing relief consistent with this ©2006 Thomson/West.No Claim to Orig.U.S. Govt.Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&destination=atp&prid=A00558000000606800047... 10/3/2006 Page 15 of 17 431 N.E.2d 213 Page 14 385 Mass. 205,431 N.E.2d 213 (Cite as: 385 Mass.205,431 N.E.2d 213) opinion. c,. Mass., 1982. Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth 385 Mass.205,431 N.E.2d 213 END OF DOCUMENT ©2006 Thomson/West.No Claim to Orig.U.S. Govt.Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&destination=atp&prid=A00558000000606800047... 10/3/2006 Page 2 of 8 m tldW. 814 N.E.2d 1132 Page 1 62 Mass.App.Ct.53,814 N.E.2d 1132 (Cite as: 62 Mass.App.Ct.53,814 N.E.2d 1132) H but rather only allowed land owner to build fence. Affirmed. Briefs and Other Related Documents West Headnotes Appeals Court of Massachusetts,Dukes County. [11 Zoning and Planning X762 Raymond MOREIS 414k762 Most Cited Cases V. Land owner which raised six-year enforcement BOARD OF APPEALS of Oak Bluffs;Frank M. limitation as a defense to land uses had burden of Fenner,trustee, [FN1]intervener. proving defense, even though other neighborhood resident initially brought enforcement action. FNl. Of the Fennco Nominee Realty M.G.L.A.c.40A, § 7. Trust. 121 Zoning and Planning X763 No.03-P-932. 414k763 Most Cited Cases Generally, in an enforcement action, whether Argued April 7,2004. initiated by the zoning enforcement officer or a Decided Sept. 15,2004. third party, the burden is upon the complainant to show that the use or structure violates the by-law. Background: Resident appealed decision of the board of appeals to uphold local building [31 Zoning and Planning X762 inspector's refusal to issue cease and desist order to 414762 Most Cited Cases neighboring land owner whose tenant was using Evidence did not support land owner's contention land for parking large trucks, collecting and that two permits allowed land owner to use property processing refuse, and other commercial uses. The for parking large trucks, collecting and processing Superior Court Department, Dukes County, Thayer refuse, and other commercial uses, and thus that Fremont-Smith, J., entered judgment for resident. six-year enforcement limitation allowed land Neighboring land owner appealed, contending that owner's tenant to continue uses; permits themselves commercial uses were allowed by permit and thus were not in evidence, and permit applications only were protected by six-year limitations period for stated that proposed structure would be used for zoning violations made pursuant to permits. "storage and garage" and described proposed "canopy to cover existing platform," and did not Holdings:The Appeals Court,Mills,J.,held that: mention commercial use of the property. M.G.L.A. (1) evidence did not support contention that two c.40A, § 7. permits allowed land owner to use lot for land owner's purposes; [41 Zoning and Planning X762 (2) permit which indicated that building on lot 414762 Most Cited Cases would be "occupied for commercial use" was not Building permit which indicated that building on lot sufficiently specific to come within six-year would be "occupied for commercial use" was not limitations statute;and sufficiently specific to allow land owner's (3) fence permit which described proposed use of commercial uses of lot, including parking, lot as "nonresidential" and "storage of trucks and maintaining and cleaning large trucks, and equipment" did not allow commercial uses of lot collecting and processing refuse, cans, and bottles, ©2006 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&mt=Westlaw&vr=2.0&prid=A00... 10/3/2006 Page 3 of 8 814 N.E.2d 1132 Page 2 62 Mass.App.Ct. 53, 814 N.E.2d 1132 (Cite as: 62 Mass.App.Ct.53,814 N.E.2d 1132) to come within protection of statute which Browning Ferris, Inc. (BFI), was using Fenner's contained six-year enforcement limitation for land unlawfully for parking, maintaining and zoning violation if violation was made pursuant to cleaning large trucks of several types; collecting terms of original building permit. M.G.L.A. c. 40A, and processing refuse, cans, and bottles; and other § 7. commercial uses. None of those uses, Moreis said, were permitted under the zoning by-law of Oak [51 Zoning and Planning X762 Bluffs in the residential zoning district in which the 414k762 Most Cited Cases Fenner *54 land was located. The inspector refused Land owner's fence permit application and permit the enforcement request, and Moreis appealed from documents, which described proposed use of fenced that inaction to the Oak Bluffs board of appeals lot as "nonresidential" and "storage of trucks and (board) pursuant to G.L. c. 40A, §§ 8 and 15. The equipment" did not allow commercial uses of lot, board, apparently applying the criteria of G.L. c. including maintaining and cleaning large trucks and 40A, § 6, concerning extension of a prior collecting and processing refuse, to come within nonconforming use, found that, with specifically protection of statute which contained six-year noted exceptions (recycling), the commercial enforcement limitation for zoning violation if activities complained of had been carried on for violation was made pursuant to terms of original many years by a predecessor owner-operator, and permit; permit itself only allowed owner to build or that the activities (other than the recycling) were not alter a fence for storage and specified it was more detrimental to the neighborhood than the "subject to all applicable codes and ordinances." historic uses. The board upheld the inspector's M.G.L.A. decision, and Moreis appealed in the Superior Court c.40A, § 7. under G.L. c. 40A, § 17. Fenner's chief defense was that his use of the site was protected by the 161 Zoning and Planning X762 provision in G.L. c. 40A, § 7, establishing a 414k762 Most Cited Cases six-year limitation on enforcement actions. Moreis The six-year limitations period in statute requiring prevailed in the Superior Court where, after a bench an action for a zoning violation to be brought within trial, a judge ordered that the board take all actions six years if violation was made pursuant to building necessary to enforce the cessation of all commercial permit applies to both structural and use violations and nonresidential use of the site. Fenner appeals, authorized by a building permit; however, unlike arguing that (1) the judge erred in determining that structural violations for which no permit was Fenner's use of his property was not protected under obtained, which enjoy a ten-year limitations period, §.7 by virtue of various building permits that had no such protection is afforded use violations issued to him and his predecessor in title; (2) the unsanctioned by any permit.M.G.L.A. c.40A, § 7. judge impermissibly substituted his judgment for **1133 *53 Brian J. Gunning for the plaintiff. that of the board; and (3) the judge's findings of fact were clearly erroneous. [FN21 Thomas A. Mackie, Boston (Gail E. Magenau with him)for the defendants. FN2. We have examined the record and conclude that the facts as found by the Present:BECK,DUFFLY,&MILLS,JJ. judge that are relevant to our decision are supported by the evidence; other findings **1134 MILLS,J. disputed by Fenner are irrelevant to the disposition of this case. Raymond Moreis, a resident of Perkins Avenue in Oak Bluffs, requested the local building inspector to 1. Background. The Fenner property (site) consists issue a cease and desist order to a neighboring of two adjoining lots, one with a building (building property owner, Frank M. Fenner. See G.L. c. 40A, lot) and the other paved, with perimeter fencing but § 7. Moreis's complaint was that Fenner's tenant, no building (fenced lot). The building lot, ©2006 Thomson/West.No Claim to Orig.U.S. Govt.Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&mt=Westlaw&vr=2.0&prid=A00... 10/3/2006 Page 4 of 8 814 N.E.2d 1132 Page 3 62 Mass.App.Ct. 53, 814 N.E.2d 1132 (Cite as: 62 Mass.App.Ct.53,814 N.E.2d 1132) historically owned by the town and used as a school No building permit was produced. Municipal gymnasium, was sold to Everett A. Rogers in 1958. records indicate the issuance of a building permit in Rogers then began using the building lot (and 1975 to Rogers at Pacific Avenue for an addition or building) for his relocated trucking business, alteration valued at $1,100. There is no evidence of although the land was then, and for all times plans for or location of the permitted work on the relevant has been, zoned for residential use only, lot. As in the case of the 1965 permit, there is no not permitting trucking or other commercial use. evidence that the work was ever completed or Rogers's business activities involved delivering accepted by the building inspector "as built." In food and beverages to local restaurants and *55 1979 Rogers purchased the adjoining lot (the fenced stores, rubbish collection, and the storage and lot), which he then, without any permit or other maintenance of several kinds of trucks. [FN3] approvals,paved and began to use for truck storage. FN3. It is uncontested that neither lot has In 1988, when Rogers became ill, he began ever been the subject of zoning relief, and negotiating the sale of the site to the defendant that Rogers never obtained authority to use intervener Fenner, who was in *56 the refuse and the land for these commercial uses. Fenner reprocessing business. In contemplation of the now claims that such authority is purchase, Fenner had discussions and consequent of the issuance of certain correspondence with the building inspector (who, in building permits, as discussed below. 1988, was Alishan Haigazian) concerning the historic uses of the property and Fenner's intention In 1965 Rogers made application for a permit to to continue those uses and to relocate his refuse build an addition for the purpose of "storage & business to the site. Rogers died in 1989. That garage," at a cost of $1,500. The application did same year, Rogers's nephew, Richard Mavro, not indicate whether the use of the structure would became building inspector. Fenner completed the be residential or commercial, but Rogers answered purchase of the site from the Rogers estate, and "yes" to the application's question, "Will the subsequently, on July 6, 1989, Mavro, upon building conform to the requirements of the law?" payment of a $55 fee, issued a building permit to No permit was offered in evidence, although the Fenner, which recites, inter alia, "perm t to build or town's record indicates **1135 that some building alter ... a commercial building on Pacific Ave. & permit was issued in 1965 to Rogers at "Perkins Perkins to be occupied for commercial use[,] .OpAve." for "additions or alterations" at a value of provided that [the permittee] shall in every respect $1,500. There is no evidence of plans for, or the conform to the terms of the application on file in 5Q location of, the permitted work on the lot, nor is this office [FN4] ... [and] subject to all applicable 1 ` there evidence that any of the permitted work "as codes and ordinances." In May of 1989, Fenner built" was accomplished or approved as compliant also was issued a building permit for lot 271 (the with the 1965 permit. fenced lot) to "build or alter a fence ... on Pacific Ave. ... for storage and security ... subject to all In 1975, Rogers applied for a building permit to applicable codes and ordinances." The application build a "shelter for platform," at an estimated cost for the fence permit describes "type of of $1,100. The "remarks" section of the application improvement" as "addition," and "proposed use" as form recites, "This is just a canopy to cover existing "nonresidential... storage of trucks and equipment." platform." The application contains denial that the proposed work was for a building addition. As with FN4. The record contains no such the 1965 permit application, there was no indication application. Fenner's testimony described as to whether the use of the structure would be the work encompassed by the permit as residential or commercial, but Rogers answered repair of the roof and sides of the building. "yes" to the application's question, "Will the building conform to the requirements of the law?" According to Fenner's testimony, in 1989 he moved ©2006 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&mt=Westlaw&vr=2.0&prid=A00... 10/3/2006 Page 5 of 8 814 N.E.2d 1132 Page 4 62 Mass.App.Ct.53, 814 N.E.2d 1132 (Cite as: 62 Mass.App.Ct.53,814 N.E.2d 1132) his refuse business and his company's entire six-year enforcement limitation into play, thereby maintenance operation (including recycling trucks, protecting the otherwise unlawful commercial uses. large commercial rubbish packing trucks, and Compare Cape Resort Hotels, Inc. v. Alcoholic rubbish collection vehicles) to the site. The judge Lie. Bd. of Falmouth, 385 Mass. 205, 211-217, found that the commercial uses of the site by Rogers 431 N.E.2d 213(1982)(Cape Resort).. and Fenner (including Fenner's tenant, BFI) had never conformed to the residential zoning, nor had [1][2] 2. Discussion. We first consider the burden any form of zoning relief.ever been sought. Fenner of proof. Generally, in an enforcement action claims that his uses are grandfathered by virtue of (whether initiated by the zoning enforcement officer the six-year enforcement limitation contained in or, as here, a third party) the burden is upon the G.L. c. 40A, § 7. [FN5] He **1136 relies upon the complainant to show that the use or structure 1965, 1975, and 1989 building permits *57 and the violates the by-law. See Brotherhood of Alpha fact that no enforcement action was sought within Upsilon, Inc. v. Zoning Bd. of Appeals of six years of the most recent of those permits. Bridgewater, 15 Mass.App.Ct. 991, 992, 448 N.E.2d 69 (1983). Here, however, the landowner FN5. General Laws c. 40A, § 7, second raises the limitation in G.L. c. 40A, § 7, as a defense. par., first proviso, as appearing in St.1989, See Cape Resort Hotels, Inc. v. Alcoholic Lie. c. 341, § 21,states in pertinent part: Bd. of Falmouth, 385 Mass. at 219, 431 N.E.2d "[I]f real property has been improved and 213 (in asserting § 7 defense, landowner had burden used in accordance with the terms of the of showing that its structure was being used in original building permit issued by a person accordance with earlier building permits). Compare duly authorized to issue such permits, no Building Inspector of Chatham v. Kendrick, 17 action, criminal or civil, the effect or Mass.App.Ct. 928, 929, 456 N.E.2d 1151 (1983) purpose of which is to compel the (in defense against cease and desist order, burden abandonment, limitation or modification of was on landowner to prove prior nonconforming the use allowed by said permit or the use pursuant to G.L. c. 40A, § 6). We hold that it is removal, alteration or relocation of any Fenner's burden to prove the§7 defense. structure erected in reliance upon said permit by reason of any alleged violation [3] We have outlined, above, some details of the of the provisions of this chapter, or of any four "permits" upon which Fenner claims oTP ordinance or by-law adopted thereunder, protection. The fust two permits were not placed in shall be maintained, unless such action, evidence, nor was there evidence that any *58 work suit or proceeding is commenced and authorized by the permits was accomplished within notice thereof recorded in the registry of the terms of those permits. The record as to these deeds for each county or district in which permits is not assisted by plans or other documents the land lies within six years next after the from which the actual use or structure could be commencement of the alleged violation of identified. The indication in the 1965 permit law"(emphasis added). application that the proposed structure would be used for "storage and garage," and the 1975 The judge properly found that all of the application's description of a proposed "canopy to commercial uses identified in this case were in cover existing platform," do not even mention violation of the zoning by-law. Any comparison commercial use of the property. Neither permit, between present and historic uses, other than those therefore, can serve as the basis for Fenner's § 7 allowed by permit, is irrelevant. This is not a case defense. Compare Lord v. Zoning Bd. of Appeals of concerning the extension of a preexisting Somerset, 30 Mass.App.Ct. 226, 228, 567 N.E.2d nonconforming use pursuant to G.L. c. 40A, § 6. 954 (1991) (no § 7 protection where building The case reduces to the question whether one or permits for construction of addition and garage for more of the four building permits brought the house in single-family district gave no indication ©2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&mt=Westlaw&vr=2.0&prid=A00... 10/3/2006 Page 6 of 8 814 N.E.2d 1132 Page 5 62 Mass.App.Ct. 53,814 N.E.2d 1132 (Cite as: 62 Mass.App.Ct.53,814 N.E.2d 1132) that structure would be used as two-family c. 808, § 3. See, e.g., Webster's Seventh dwelling). New Collegiate Dictionary 24, 180 (1972) ("Allow": "permit," "let." "Contemplate": The 1989 permits are shown in evidence: the "to have in view as contingent or probable permit for the fenced lot is dated May 19, 1989, and or as an end or intention"). that for the building lot, July 6, 1989. Fenner testified that he brought **1137 his company's [4] The July, 1989, permit indicated that the recycling, refuse and crushing operations, together building in relation to which the permit was issued with commercial garbage trucks, recycling trucks, would be "occupied for commercial use." That residential garbage trucks, and other equipment to designation, without more, lacks the particularity the site prior to the July building permit. It is also required to trigger the protection of § 7. The words clear from his testimony that, at least as to the "commercial use," standing alone, could be read in building lot, Fenner engaged in the objectionable a massively expansive way to refer to multiple uses well in advance of the July, 1989, building nonresidential uses (e.g., incinerator, gasoline permit. As to the fenced lot, it is not entirely clear station, shopping center, garbage dump, etc.). We whether Fenner made additional use of the lot prior consider it absurd to suggest that the Legislature, in to the issuance of the fence permit on May 19. It is adopting § 7, would intend "terms of the original clear, however, that Rogers's use of the fenced lot building permit" (emphasis added) to authorize any began around 1979 and that he continuously parked and all imaginable commercial uses on Fenner's tractors, trailers, and other commercial vehicles property, with no greater specificity or description. there for approximately ten years before the May, See, e.g., Cape Resort, supra at 219, 431 N.E.2d 1989, permit, in violation of the zoning by-law. As 213. There, a hotel had operated as a lawful, with the earlier two permits, the 1989 permits, preexisting nonconforming use in a residential although in evidence, were unaccompanied by plans district. At issue was the change in use of particular or other documentary narrative as to the existing rooms in the hotel: a reading area had become a use, proposed changes, or other activity to be pub; a dining room had become a disco; part of an accomplished within the contemplation of the enclosed porch had become a game room; and a permits. "frolic room" had become a "show lounge." After rejecting the landowner's argument that the changes Section 7 of G.L. c. 40A protects, by limitation of continued to enjoy the protection of G.L. c. 40A, § 6 action, "use allowed by said permit" [FN6] or "the (see Bridgewater v. Chuckran, 351 Mass. 20, 217 removal, alteration or relocation of any structure N.E.2d 726 [1966] ), the court considered the erected in reliance upon said permit...." *59 landowner's claim that a single permit to enclose a (emphasis added). We have carefully examined the porch provided § 7 protection for "the entire present permits and permit applications, see Cape Resort, use of the hotel's ground floor." This argument was supra at 219, 431 N.E.2d 213; Garabedian v. rejected by the court, which examined the present Westland, 59 Mass.App.Ct. 427, 4373 796 N.E.2d uses--and any prior building permits that might have 439 (2003), to see whether they allowed Fenner's allowed them--on a room-by-room basis. Of the commercial operations (truck storage, refuse, varied uses for which the landowner sought transfer, etc.), on one or both of the lots, within the protection, the court concluded that only the show meaning of§ 7,and conclude that they do not. lounge was protected by § 7, because the **1138 documents accompanying an earlier permit FN6. In its original form, § 7 protected application for an addition (which subsequently *60 uses "contemplated by said permit" became the show lounge) "indicated very clearly (emphasis added). See G.L. c. 40A, § 22, that the space would include a bar, cocktail lounge, as amended by St.1970, c. 678, § 1. The and entertainment facilities"--the specific uses in more restrictive word "allowed" was effect at the time of trial. Cape Resort, supra at substituted for "contemplated" by St.1975, 219, 431 N.E.2d 213. In contrast, the court ©2006 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&mt=Westlaw&vr=2.0&prid=A00... 10/3/2006 Page 7 of 8 814 N.E.2d 1132 Page 6 62 Mass.App.Ct.53, 814 N.E.2d 1132 (Cite as: 62 Mass.App.Ct.53,814 N.E.2d 1132) concluded that a 1956 permit to enclose the porch, or Rogers's for that matter, were allowed by any without evidence of the use to which the enclosed permit, or undertaken consequent to the issuance of porch was put in 1956, did not meet the landowner's any permit. The unlawful uses simply have no burden of showing that the room was being " 'used relationship to the building permits under which in accordance' with the permit authorizing its Fenner seeks protection. Thus, in the instant matter, enclosure." Ibid. Similarly, in the instant matter, only the fence itself enjoys the protection of § 7. the July, 1989, permit for a "commercial building ... Because Fenner's use of the property was never to be occupied for commercial use" is insufficient to allowed by a permit, there is no limitations period provide Fenner the protection of§ 7. for actions to redress that violation of the zoning by-law. [FN8] [5] Lastly, we consider the May, 1989, fence permit application and permit documents to FN7. The fact that the Legislature rewrote § determine whether, in combination, they provide § 7 7 to protect only uses "allowed" by a protection for Fenner's use of the fenced lot. The permit, rather than any use "contemplated" contents of each document are detailed above. by a permit, see note 6, supra, lends Although Fenner's permit application described the further support to the view that permits "proposed use" as "nonresidential ... storage of should not be read expansively when trucks and equipment," the permit itself authorized considering the extent of their reach for Fenner only to "build or alter a fence ... for storage purposes of§ 7. and security ... subject to all applicable codes and ordinances." FNB. We also observe that, in substance, the result requested by Fenner would [6] The six-year limitations period in § 7 applies to essentially result in the rezoning of land, or both structural and use violations authorized by a effect the grant of a variance. These building permit. However, unlike structural matters are unambiguously entrusted by violations for which no permit was obtained (which the Legislature to the town meeting and enjoy a ten-year limitations period), no such zoning board of appeals, respectively. See protection is afforded use violations unsanctioned generally G.L. c. 40A, §§3,4, 5, 10. by any permit. See Lord v. Zoning Bd. of Appeals of Somerset, 30 Mass.App.Ct. at 227, 567 N.E.2d In conclusion, we hold that Fenner had the burden 954. The May, 1989, fence permit gave Fenner of proving the nature of the particular uses permission to build a fence, and nothing more. The authorized by the earlier **1139 building permits, permit application's reference to "trucks and and that the uses for which he sought protection equipment" pertains to the lot, not the fence. The were allowed by the permits. He failed to do so. words are incidental, and superfluous to a permit We affirm the judgment. [FN9] application for a fence. The fact that a preexisting, unlawful, unpemritted use was incidentally FN9. In light of the conclusion we reach, described on an application to erect a fence does there is no merit to Fenner's argument that not, in our view, bring the unlawful use within the the judge impermissibly substituted his protection of § 7. Cf. Cape Resort, supra at 220, judgment for that of the board. The 431 N.E.2d 213 (effect of variance for parking lot relevant facts, as properly found by the was to "alleviate parking problems at the hotel, judge (see note 2, supra), cannot support a not to legalize all uses to which hotel buildings conclusion that Fenner's use of the were being put[;][t]he judge correctly refused to property was protected by a 40A, § 7. attribute any broader significance to the granting of [the] *61 variance"). [FN7] Nor, upon So ordered. examination of Fenner's trial testimony, is there any basis for concluding that his commercial activities, 62 Mass.App.Ct. 53, 814 N.E.2d 1132 ©2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&mt=Westlaw&vr--2.0&prid=A00... 10/3/2006 Page 8 of 8 n 814 N.E.2d 1132 Page 7 62 Mass.App.Ct. 53, 814 N.E.2d 1132 (Cite as: 62 Mass.App.Ct.53,814 N.E.2d 1132) Briefs and Other Related Documents(Back to top) 2003 WL 23962111 (Appellate Brief) Brief of the Plaintiff-Appellee (Sep. 29, 2003)Original Image of this Document(PDF) • 2003 WL 23962112 (Appellate Brief) Brief of the Defendant-Appellant Frank M. Fenner on Appeal from Dukes County (Aug. 18, 2003)Original Image of this Document(PDF) END OF DOCUMENT ©2006 Thomson/West.No Claim to Orig.U.S. Govt.Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&mt=Westlaw&vr=2.0&prid=A00... 10/3/2006 05/16/2010 14:02 FAX 978 825 0068 JOHN. H. CARR, JR. , ESQ. 2 001 JOHN H. CARR,JR.,ESQ. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 FACSIMILE COVER SHEET FACSIMILE NUMBER: 978-740-9846 TO: Building Department City of Salem 120 Washington Street,3rd Floor Salem,MA 01970 RE: Nicholas Osgood v. Linda Moustakis, et al, Essex Sup. Ct.,Docket No. 2006-2441 C DATE: March 16,2010 Pages including this cover page: The information contained in this facsimile mcssatge is legally privileged and confidential information intended only for the use of the individual or entity named above. If you are not the recipient named above,you are I iereby notified that any dissemination,distribution or copy of this facsimile message is strictly prohibited. If you have received this facsimile message in erro",please notify me immediately by telephone and return the original mess age to me at the above address via the United States Postal Service. Thank you. Mar 151006:58pSteve Berlin, Esq. 1978 4622475 p.1 Steven A. Berlin Aittomn ey at]Law (978).462 49oo voice 79 State Sit. (978)46"2475 fax Newbnryport, M&oig,,o e-imnadla nteve:naberlirn(d*ionaiEl.coro FACSIMrLE TRANSMISSION March 15, 2010 TO: Thomas St. Pierre, Building Inspector, Zoning Enforcement City of Salem 120 Washington St. 3.d Floor Salem, MA. 01970 RE: 4 Bentley St., Unit 2, Salem, MA. FAX NO: 978 740 9846 FROM: Steven A.Berlin TOTAL NUNIBER OF PAGES (including this sheet):_ 3 DATED MATERIAL DELIVER IMMEDIATELY *****************Urgent IF YOU DO NOT RECEIVE ALL THE PAGES PLEASE CALL(978)462 4900 AS SOON AS POSSIBLE This Communication is intended for the use of the named herein and may contain legally privileged and confidential information. If you are not the intended recipient of this facsimile, you are hereby notified that any dissemination, distribution, or coping of this communication is strictly prohibited. If you have received this comrnunication in error please notify us by telephone and return the original communication to us at the address above via the United States Postal Service. We will reimburse any costs you incur in notifying us and returning the communication to us. Thank you. Mar 1510 06:58p Steve Berlin, Esq. 1978 462 2475 p.2 ]Law O iraes of Steven A, Berllbl. 79 State Street 'Newburyport, Massachusetts 09950 (978) 02 4900 VCoicce (978) 462 2475 ]Falx �-evPm ab�rlim(2!.�'inatB.c�rra Faxed only on this date to 978 740 9846 Thomas St. Pierre, Building Inspector,Zoning Enforcement City of Salem 120 Washington St. 3`d Floor Salem, MA. 01970 RE'. Issues Concerning the Exterior Stairs Located at 4 Bentley St. RE: Docket',06-244 1 C Osgood v Moustakis Dear Mr, St.Pierre, March 15, 2010 It is my understanding that the above case came before the Court this afternoon and no decision was made from the bench. At issue are several questions that directly affect my client, aunit owner at 4 Bentley Street. However, before I get to those issues let me point out the following to You: At this time Mr. Osgood has no authority to request a building permit to make any changes to the building. The bylaws clearly read, in section 8:13 that no alterations to the outside of the building can be made without prior written consent of the Board of Trustee(the unit owners). Mr. Osgood's proposed new design for the stairs has already been DENIED by both unit owners. Furthermore, any request for a permit, to a governmental agency, to alter the building has to come from the Board of Trustees and not from an individual unit owner. The board,to my knowledge, has issued no such request. Similarly, there can be no changes to the exterior design of the building that changes any of the plans recorded at the registry of deeds, or that of the Master Deed, without approval of the unit owners, which has been denied. Therefore I urge you not to issue a building permit to Mr. Osgood,now or even after the decision of the court should it be decided in his favor. Before any such permit is issued Mr. Osgood needs to comply with both the Bylaws and the Master Deed at 4 Bentley Street. Any such attempt to issue a permit at this time would lead to more litigation and more expense that the city does not need. Please note that both unit owners have filed their own civil suits against Mr. Osgood for damages. (Docket 4 ES-CV-09-999&ES-Cv-09-998) At a minimum the court needs to address following 3 issues: Personal Injury - Real Esiate - Bankruptcy - Landlord&Tenant Divorce and Fannly Practice - Trusts and Wills - Business Law - Estate Planning Mar 1510 0&58p Steve Berlin,Esq. 1 978 462 2475 p.3 V' is the issue of the legality of the 3rd floor unit as identified by the counsel for Linda Moustakis. 2"d is the issue of whether or not the stairs and deck as built are a stand alone structure or an attached structure, 3`d is the issue of whether the proposed new stairs in fact meet the zoning set back or not as proposed no matter what the engineers for the defendant may state. a. The new proposed stairs may violate the set back for the I'floor unit owner's deeded property and as such is an abutter. Where the current stairs were built in violation of zoning it would seem to me that the City and yourself would be very interested in making sure that any further build outs were in full compliance with, state and city zoning, statutes and condominium laws. rry truly vnn - --mac even A. rlm - q. Co or nit Owner 42 Sab/snnn Cc Geoffrey DuBosque,Esq. cu. John Carr,Jr.Esq. cc,Jerald Paiesch,Esq. -, cc.Phil Wvsor Personal Injury - Real Estate - Bankruptcy - Landlord&Tenant Divarce and Family Practice - Trusts and Wills - Business Law - Estate Plannicg 03/16/2010 14:02 FAX 978 825 0068 JOHN H. CARR, JR. , ESQ. 2 002 John H. Carr, Jr.,Esq. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 March 16, 2010 By Mail&By Facsimile: 978-921-4553 Jerald A. Parisella,Esq. 1 School Street Beverly, MA 0191.5 Re: 4 Bentley Street Re:Nicholas Osgood v. Linda Moustakis,et al,Essex Sup. Ct., Docket No. 2006-2441C Dear Jerry: Concerning our telephone conversation this morning, I don't know whether Nick Osgood is planning on seeking a building permit for an alternative exterior staircase as a possible end run around his present legal difficulties concerning the existing exterior staircase,but if that were to occur, I respectfully submit that a building permit for such a staircase should not be issued for the following reasons: 1. Only an owner or his/her authorized agent has standing to apply for a building permit, and neither of those factors would be present in such event, as per attorney Berlin's March 15,2010 faxed letter to Tom St. Pierre, which both you and I also received by fax yesterday evening; 2. For Tom to issue a building permit for an alternative staircase as a matter of right at a time when one of the issues squarely before the Essex Superior Court is whether the third floor unit is even legal to begin with would be anomalous to say the least; 3. In this regard, as we have discussed at length, Tom refusal to grant Linda's enforcement request with respect to the third floor unit was not based on his contention that the third floor unit is legal, but rather, that her requested enforcement request was barred by the 6-year statute of limitations of Section 7 of Chapter 40A—see the relevant section in his August 31, 2005 letter quoted in paragraph 34 of the Parties'Joint Statement Of Uncontested Facts; 4. That being the case, as explicitly noted by Judge Lu in his October 19,2009 Summary Judgment in favor of Nick,the fact that Linda was barred by the 6-year statute of limitations does not convert the third floor mut into a legal unit, citing Bruno v. Board of Appeals of Wrentham, 62 Mass. App. Ct. 527 (2004); 03/16/2010 14:00 FAX 978 825 0068 JOHN H. CARR, JR. , ESQ. 2003 5. Especially in view of Tom's initial mistake in granting a building permit for the existine 3-story exterior staircase, which is at the root of N'ick's present litigation, can you imagine how it would look if Tom were to issue a building permit for an alternative exterior staircase for the third floor unit,especially pursuant to an application that was not duly authorized by the legal owner of the property (namely the Condominium Association), and the Essex Superior Court later made an express finding in its decision that the third floor unit is illegal; 6. As the owner of anon-conforming unit, I believe the case law in Massachusetts is clear that Nick has the burden of proving that his third floor unit is legal; 7. As Salem's Zoning Enforcement Officer, l also believe it is legally incumbent on Tom to resolve any and all ambiguities in favor of enforcing the Zoning Ordinance; 8. As you and I both argued before Judge Cometta at yesterday's Pre-Trial Conference in Lawrence, the case law in Massachusetts is clear that the existing 3-story staircase should be removed, especially in light of the lengthy statement of uncontested facts the parties have agreed to; 9. Given those uncontested facts, it would not surprise me in the least if Judge Cometta were to include an express finding that the existing third floor unit is illegal as well. I couldn't agree more with attorney Berlin's statement in his March 15,20 10 fax that "Any such attempt to issue a permit at this time would lead to more litigation and more expense that the city does not need"and that"the City and [Tom] would be very interested in making sure that any further build outs were in full compliance with state and city zoning, statutes and condominium laws." Very truly yours, John H. Carr, Jr. Cc.Thomas St. Pierre—By Facsimile: 978-740-9846 Philip C. Wysor, Esq.—By Facsimile: 978-921-7809 Steven A. Berlin, Esq.—By Facsimile: 978-462-2475 Geoffrey DuBosque, Esq.—By Facsimile: 978-462-2475 Ms. Linda Moustakis—By Hand Certificate Number: B-14-1378 Permit Number: B-14-1378 Commonwealth of Massachusetts Permit Number: mber B-14,1378 City of Salem This is to Certify that the Family Condo Building located at Building.�e ....... ....... 4-U1 BENTLEYST ET 0 ...... in the Salem_ Address ........ ........ Name ZZ/C City Name IS HEREBY GRANTED A PERMANENT CERTIFICATE OF OCCUPANCY unit #3 CONDO ASSOCIATION CIO N. OSGOOD This Permit is granted in conformity with the Statutes and ordinances relating thereto, and expires ............. ...... Not Applicable ........ ....... .........-...... unless sooner suspended or revoked. Expire D"at'e...... Issued On: Tuesday, September 30, 2014 W 1�6; : �gtQ• a w DIVITf'R'°� :v , M�ONOIp�N�'e Commo'lwealth of Massachusetts Y � ' City of Salem Y 120 Washington St,3rd Floor Salem,MA 01970(978)745-9595 x5641 MIN ➢� Return card to Building Division for Certificate of Occupancy Permit No. B-14-1378 PERMIT T O BUILD FEE PAID: $60.00 DATE ISSUED: 8/26/2014 This certifies that NICHOLAS & CAROLEE OSGOOD has permission to erect, alter, or demolish.a building 4-U_t BENTLEY STREET Map/Lot: 350376-801 as follows: Renovation ADD WALL AT TOP OF STAIRS ON THRID FLOOR(THAT ARE PREEXISTING) - FOR CONDO ASSOCIATION BETWEEN UNIT 2 & 3 t Contractor Name: DAVID L. BARCHARD DBA: DAVE BARCHARD REMODELING 1 Contractor License No: CS-101631 dam 8/26/2014 Building Offici 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. ' t - � The Certificate of Occupancy will not be issued until all applicable signatures by the Building and Fire Officials are provided on this permit. i HIC#: 162466 "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 am f a City of Salem 120 Washington Sl,3rd Floor Salem,MA 01970(978)745.9595x5641 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 ct�3II`k Mechanical y Insulation �c`t 5,1� INSPECTION: BY DATE Chimney/Smoke hamber FinalC 3 A Plumbing/Gas Rough:Plumbing Rough:Gas _ Final Electrical service jRough (Final Fire Department (Preliminary Final - Health Department Preliminary Final GO. v�A - CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL 1014 29 A & '46 120 WASHINGTON STREET 0 SALEM,MASSACHUSETTS 01970 KmmBERLEYDRiscoLL TELE:978-745-9595 ♦ FAX:978-740-9846 FILE # MAYOR CITY CLERK. SALEM, MASS. August 29, 2014 Decision City of Salem Board of Appeals Petition of NICK OSGOOD requesting a Special Permit per Section 3.3.3 Nonconforming Structures of the Salem Zoning Ordinance, to allow the addition of a roof deck to an existing nonconforming three-family residential building, for the property located at 4 BENTLEY STREET (112 Zoning District). A public hearing on the above Petition was opened on July 16, 2014 pursuant to M.G.L Ch. 40A, § 11. The hearing was closed on that date with the following Salem Board of Appeals members present: Ms. Curran (Chau),Mr. Duffy,Mr. Watkins, and Mr. Copelas (Alternate). The Petitioner seeks a Special Permit from Section 3.3.3 Nonconforming Structures of the Salem Zoning Ordinance and a Variance under Section 4.1.1 Table of Dimensional Requirements of the Salem Zoning Ordinance. Statements of fact: 1. In the petition date-stamped June 25, 2014, the Petitioner requested a Special Permit to extend an existing nonconforming structure by adding a roof deck to an existing nonconforming three-family residential building in an R2 zoning district. 2. Mr.Nick Osgood presented the petition for 4 Bentley Street. 3. At the public hearing, three members of the public spoke in opposition to the petition, stating concerns regarding density, infringements on their privacy, and the negative impact of the proposed privacy fence on the value of the property and the character of the neighborhood. 4. Mr. Osgood requested to withdraw the petition without prejudice. The Salem Board of Appeals, after thorough review of the petition including the application narrative and plans, and careful consideration of the Petitioner's presentation and testimony by the public, voted to grant the withdrawal of the petition for 4 Bentley Street without prejudice by a vote of four (4) in favor (Mr. Watkins,Ms. Curran, Mr. Copelas and Mr. Duffy in favor) and none (0) opposed. GRANTED PERMISSION TO WITHDRAW WITHOUT PREJUDICE 'Iq-ax,_ l"Vy" /U22-- Rebecca Curran,Chau Board of Appeals A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from ibis decision, if any,shall be made pursuant to Section 17 of the Massachuseas General Lams Chapter 40A, and shall be filed within 20 days of filing of this decision in the ffice of the City Clerk. Pursuant to the Massachusetts General Lams Chapter 40A, Seaton 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk has been filed with the Essex South Registry of Deeds. John H. Carr, Jr., Esq. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 October 24,2006 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: Since you were in attendance at last Wednesday's hearing of the Salem Zoning Board of Appeal, at which the Board unanimously voted to deny the application of Nicholas Osgood for a variance to retain the already-built, 3-story exterior staircase at the rear of 4 Bentley Street, I need not summarize what transpired at said meeting in this letter. It is now after 3:30 p.m. on the Tuesday following said vote, ie. six days later, and at least so far,no attempt has been made on Mr. Osgood's part to even begin removal of what is now clearly an illegal structure. (Bear in mind that even if Mr. Osgood were to appeal the Board's October 18,2006 denial of his application for a variance,which I very much doubt he will do, especially given the obvious legal futility and frivolous nature of such an appeal,the mere filing of an appeal alone does not automatically stay execution of the Board's vote, which would require his filing suit and going to court to seek a stay.) Needless to say, in view of all that Ms. Moustakis has gone through over the last 18 months to compel the removal of the staircase, especially in terms of expense, delay, and aggravation, she is unwilling to countenance any further delays on your and/or Mr. Osgood's part in having the staircase fully removed. In particular, Ms. Moustakis does not want to repeat the same kind of six-month delay that occurred between the incorrect issuance of a building permit by your office on May 23,2005 and your November 22,2005 letter to Mr. Osgood finally awakening to that fact and informing Mr. Osgood that the staircase is"not exempt from zoning"and that he must seek a variance. o / 9'<l S 7 � � - S °7 � - 9' G � Z -�C-e�e�� the ice Legal Notice i ny CITY OF SALEM-" BOARD OF APPEAL'.. ^'° I Will h�y9��ic Ext 381: 1 public hearing for all Persons Interested in the Petition sub - RENTAL miffed:by SALEM POINT RENTAL I r• PROPERTIES.seeking an amend•. n merit to the original dsdslon,(7ry4/04) to allow all 15 units to be sold as Rt located at 50 Palunits forthe'prop" hearin Palm Street&1Said ?) 9 will be held on Wednesday, �) August 16, 2006 at 6:30 P.M120 a Washington Street, 3rd;floor;Room 313. , SN-812,ag/06Nina Cohen,Chairman :.l t It is regrettable (to say the least)that this only occurred after constant pressure from Ms. Moustakis over the preceding six-month period. It is even more regrettable that you allowed a further 2 %z-month delay between the date Ms. Moustakis sent you her September 5, 2005 formal written demand letter(copy enclosed) and the date you finally sent Mr. Osgood your November 22, 2005 letter. If such initial delays weren't bad enough,Ms. Moustakis is also deeply upset that you allowed a further four-month delay to occur between said November 22, 2005 letter and the deadline of Friday,March 24, 2006 you imposed for Mr. Osgood to file an application for a variance before commencing enforcement proceedings, which resulted in Mr. Osgood literally waiting until 10 minutes before your office closed on March 24, 2006 before filing his application for a variance. In view of this history,perhaps you can appreciate why it is that Ms. Moustakis is unwilling to countenance any further delays on your and/or Mr. Osgood's part. Indeed, Ms. Moustakis finally came to me last Spring out of sheer frustration with your willingness and/or ability to enforce the Salem Zoning Ordinance in any kind of competent or timely fashion. Given your apparent inaction since last Wednesday, she has no more confidence now,than she did last Spring. Accordingly, I am herewith formally requesting that you take all immediate action necessary or convenient to insure the complete removal of the staircase within the next fourteen(14)days, including(if necessary) seeking imposition of the maximum statutory fine for each day that said illegal structure continues to be up,measured(at a minimum from last Wednesday, and that you keep Ms. Moustakis and me fully apprised of same. Please be forewarned that unless you follow through on the foregoing by the end of this week, I will file a mandamus action against you in the Essex Superior Court seeking to compel you to do your clear duty, in which event I will be seeking separate fees against the City. I am also herewith formally requesting that you keep Ms. Moustakis and me apprised in a timely fashion of any application for a building permit from Mr. Osgood for a substitute new staircase. Given that he may have a claim against you and/or the City for the cost of the staircase that he built in reliance on the building permit that your office mistakenly issued on May 23, 2005, 1 trust you will not allow any personal exposure on your or the City's part to influence you to relax in any way the Code requirements for a substitute new staircase. By separate cover and/or proceedings I will be dealing with the significant costs Ms. Moustakis has had to incur to cure this situation, which should not have been necessary had your office done its job at any number of stages in this whole sad affair, stretching all the way back to your predecessor in 1993, which raises troubling questions about the circumstances under which Mr. Trembly revoked his November 12, 1993 and November 29, 1993 written determinations that 4 Bentley Street was then a 2-family dwelling, and instead,without explanation, subsequently determined it to be a legal 3-family dwelling, and physically changed the field card accordingly, or caused someone else to do it. Would you or someone from your office kindly acknowledge receipt of this letter by date-stamping the enclosed copy of this letter. Thank you. Very truly yours, John H. Carr, Jr. Enc. Cc Mayor Kimberly Driscoll Elizabeth Rennard, Esq., City Solicitor Philip C. Wysor, Esq. Ms. Linda J. Moustakis—By Hand Matthew Kelleher, 15t floor owner, 4 Bentley Street—By Hand Victoria Regan, 2"d floor owner, 4 Bentley Street—By Hand o+orr CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL L' JI S'ALLM,rM-A CLERK'S OFFIDE 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 TELEPHONE:EP HONE: 978-745-9595 ,... FAX: 978-740-9846 ppb KIMBERLEY DRISCOLL 145 NOV 22 ':P 3: 2'4 MAYOR November 20, 2006 City of Salem Zoning Board of Appeal Decision Petition of Nicholas Osgood requesting a Variance From Side Yard Setback to Allow Construction of Exterior Stair at 4 Bentley St. (R-2 District) A public hearing on the above petition was opened at the April 19, 2006 meeting of the Zoning Board pursuant to Mass General Law Ch. 40A, Sec. 11, and was continued until the October 18, 2006 meeting. The following Zoning Board members were present: Beth Debski, Nina Cohen, Richard Dionne, Steve Pinto and Robin Stein The petitioner Nicholas Osgood requests a variance pursuant to section 9-5 to allow the construction of an exterior stairway at the existing dwelling at 4 Bentley Street in the two-family zoning district. The Board of Appeal, after careful consideration of the evidence presented at the public hearing, and after thorough review of the Plans and Petition submitted, makes the following findings of fact: 1. Petitioner Nick Osgood purchased the property at 4 Bentley St, a three-story residence, in 1995. 2. In May 2005 Mr. Osgood applied for and received a building permit to construct a roof deck and an exterior staircase to allow egress from the third floor. 3. In applying for the building permit, Mr. Osgood submitted sketched showing that the proposed stairway would extend to within three feet of the rear property line and would not be in compliance with rear setback requirements of the Zoning Ordinance. The Building Department understood that the dimensional requirements of the zoning code were superceded by Building Code and fire safety requirements, and for that reason the permit was issued without the granting of a zoning variance. 4. In May construction of the stair commenced. A neighbor, Linda Moustakis of 2 Bentley St., immediately objected, on the grounds that the structure was too close to the property line and did not meet zoning requirements. She requested that the Building Department demonstrate their basis for setting aside zoning considerations. She further pointed out that no variance would be required if the egress stairway were sited on the driveway side of the house. 5. On November 22, 2005 the Building Commissioner informed Mr. Osgood that the building permit granting permission to construct the stair was not validly issued and directed him to correct the zoning violation within 60 days of receipt of the notice. See Letter of Thomas St. Pierre, Zoning Enforcement Officer, dated November 22, 2005, incorporated by reference herein. 6. On information and belief, Mr. Osgood did not comply with the Building Commissioner's directive. In late 2005, Mr. Osgood converted the property to a condominium association and filed a Master Deed and Declaration of Trust. 7. On November 30, 2005 Mr. Osgood conveyed the second floor condominium to Victoria Regan. 8. Mr. Osgood's request to build a roof deck was not part of the original building permit since there was no roof deck shown on the sketches submitted to the Building Department. The Building Department has asked the petitioner to remove any portion of the roof deck that was completed, and, upon information and belief he has done so. This petition does not include a request for a variance to allow a roof deck. 9. At the public meeting, Ms. Moustakis and her attorney John Carr spoke in opposition to the proposed variance, on the grounds that the exterior stair was too large and deprived her of privacy in the enjoyment of her property. Also speaking in opposition to the stair were neighbors Robert Wilde of 5 Daniels St. and Kate Gill of the Daniels House Inn. 10. Also speaking in opposition were City Councilors Lucy Corchado, representing Ward 1, and Lenny O'Leary, Ward 4 representative and a friend of the abutter. On the basis of the above findings of fact, including all evidence presented at the public hearing, including, but not limited to, the Petition and detailed plans, the Zoning Board of Appeals concludes as follows: 1. The petitioner's request for a variance to construct an exterior stair within 2.5 ft of the rear property line constitutes a substantial detriment to the public good. 2. The proposed expansion does nullify or substantially derogate from the intent or purpose of the zoning ordinance. 3. In permitting such change, the Board of Appeals requires certain appropriate conditions and safeguards as noted below. In consideration of the above, the Salem Board of Appeals voted, four (4) opposed (Cohen,Dionne,Hams and Pinto) and none (0) in favor, to deny the request for a variance, subject to the following terms, conditions, and safeguards: I. Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner. 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner shall obtain a building permit prior to beginning any construction. 5. Exterior finishes of the new construction shall be in harmony with the existing structure. 6. A Certificate of Inspection is to be obtained. 7. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to,the Planning Board. fie--A Nina Cohen, Chair Salem Zoning Board of Appeal oNmr CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL 120 WASHINGTON STREET, 3RD FLOOR SALEM. MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 WN FAX: 978-740-9846 KIMBERLEY DRISCOLL MAYOR n_ November 27, 2006 �,o City of Salem Zoning Board of Appeal o L V7 N C)'_ Decision -0 T3 Petition of Linda Moustakis requesting Administrative Appeal From g Nonconforming Use Determination at 4 Bentley St. (R-2 District) 00 A public hearing on the above petition was opened on October 18, 2006 at a meeting of the Zoning Board pursuant to Mass General Law Ch. 40A, Sec. 11. The following Zoning Board members and associate members were present: Beth Debski, Nina Cohen, Richard Dionne, Steve Pinto and Robin Stein. The petitioner Linda Moustakis of 2 Bentley St. sought to appeal, pursuant to Section 9- 2(e) of the Zoning Ordinance, a determination by the Building Commissioner that the dwelling at 4 Bentley Street is an existing nonconforming three-family dwelling. This determination was made in an August 31, 2006 letter from Thomas St. Pierre, Zoning Enforcement Officer and Building Commissioner, to Attorney John H. Carr Jr., who represents Ms. Moustakis, a copy of which is attached to this decision and incorporated by reference herein. Appeal of a determination by the Building Commissioner is according to Section 9-2 (e) of the City of Salem Zoning Ordinance, which states: (e) The concurring vote of four(4) of the members of the board of appeals shall be necessary to reverse any order or decision of the inspector of buildings or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance or to effect any variation in the application of this ordinance. The Board of Appeal, after careful consideration of the evidence presented at the public hearing makes the following findings of fact: 1. Petitioner Linda Moustakis has owned and resided at 2 Bentley St. since 1996. 2. In May 2005 the owner of the abutting property at 4 Bentley St. obtained a building permit and began construction of an exterior stair to the third floor, with the intention of converting the property to three condominiums. 3. Ms. Moustakis objected to the granting of the building permit on the grounds that the dwelling was a two-family dwelling and was located in an R-2 (two-family) district. She also objected to the location of the exterior stair within three feet of the property line, asserting that the dimensional setback had not been observed. 4. In April 2006 Nick Osgood, the owner of 4 Bentley St., applied to the Zoning Board of Appeal for a variance to allow the exterior stair to be built within the rear yard setback. When the matter came for a hearing, Ms. Moustakis raised the issue of whether the dwelling was a legal three-family dwelling? The matter was continued, and attorneys for both parties filed briefs with the City of Salem, which were sent to the members of the Zoning Board of Appeal. 5. In July Ms. Moustakis submitted affidavits concerning the prior use of the dwelling from former residents Stanley Doran, William Wilson, Marianne Bick, Bernard Bartnicki, Jennie Bartnicki and Sandra Baldwin. These affidavits are incorporated by reference herein as Exhibit A. 6. On August 31, 2006 the Building Commissioner determined that the three-family use was "protected from any action by the City due to the provision of M.G.L. c.40A, Section 7." See Letter of Thomas St. Pierre, August 31, 2006, attached as Exhibit B. 7. In October 2006 the Board of Appeal sought an opinion from the City Solicitor with respect to the Building Commissioner's determination, and this opinion was received at the public meeting on October 18, 2006. The Opinion of the City Solicitor, dated October 18, 2006, is attached and incorporated by reference herein as Exhibit C. 8. At the public meeting, attorneys for both parties presented argument. On the basis of the above findings of fact, including all evidence presented at the public hearing and evidence submitted prior to it, the Zoning Board of Appeals concludes as follows: The request for appeal from the Building Commissioner's determination of August 31, 2006 is denied. In consideration of the above, the Salem Board of Appeals voted, four(4) opposed (Cohen, Dionne, Harris and Pinto) and none (0) in favor, to deny the request for administrative appeal. pp Nina Cohen, Chairman Salem Zoning Board of Appeal Qm(a'18, 2006 Page 2 there must have been a building permit the permit must have been issued by'•a Pelson duly authorized to issue such permits;' and, the sal Property .must have been "improved and used m accordance with the terms of the original building permit,,' Even if a building inspector mistakenly interprets the zoning ordinance or bylaw and issues sl. aprobtu ;-C permUlywoit, y has only sin years to file a claim for relief. """' Maw, 56 Mass-App.0 L 1103 (2002); Resorts Hctct Inc. y_Alcoholk t ' ' sing$ Qi Fairnen& 385 Mass.205 (1982). In this particular case, the budding insissued a building permit in 1997 to "Renovate 3 I Apt. as Per P6w: new Marc replace walls:' The records also note that a certificate of occupancy was issued on May 15, 1997 for the worst done pursuant to the buildingp��. It appears from the same records the budding inspector W determined that the premises was "a lawful three (3) family dwelling," The building is located in an R.2 District. It is my opimvon that even if the building inspector issued the building permit in error, the time period to appeal his decision has expired. An appeal should have been e commenced at least prior to May 15, 2003 (when the cer ficate of occupancy was issued). If the Board finds that a building permit was issued by the proper individual and the premises was improved and used in accordance with the permit, then an action to annul the issuance of the building permit and/or prohibit said use is barred by the six- year stature of limitations, CITY 4F SALEM LEGAL DEPARTMENT Yti0.:971.74S9595 •FAX VS-714 IM 1.wBrasttDasaa1 ZLCLUMRa2awND.1,54 kUMPAMeu..Fs4 MOM arrsa xnm Aw.arrsoucam Memorandum for Zoning Board of Appeals To•.Nina Cohen,Chairperson, Zoning Board of Appeals From:Jerald A.Pwisella, Assistant City Solicitor RE: 4 BemleyStreec October 18,2006 You requested a legal opinion concerning the issuance of a building permit to the owner of a two-fw*dwelling to allow the premises to be used as a three-family dwelling.Your specific request is attached as Exhibit A of this opinion. Your request is m response to an appeal filed by Linda Moustalos of 2 Bewley Street. She is appealing the determination of the building commissioner that the use of 4 Bentley Street as a three-family home is protected by the statute of limitations in General Laws Chapter 40A sec.7 (the building commissioner's letter is Exhort B). Chapter 40A sec. 7 governs the issuance of building permits.The statute gives the building inspector the authorityto issue a budding permit.When issuing a building peimry the bui7dmg inspector must determine if the proposed use meets the zoning _ requirements of the locus. There is no requirement for notice or a hearing for the issuance of a building permit. Chapter 40A sec.7 creates a six year statute of limitations period to challenge that a building permit was issued in error.In order to obtain the protection of the six year statute of limitatnons: i CITY OF SALSMc MAS:ACNYSETTS PUBLIC YROPewrV DQIARTWNT 120 WASMNWrON STRatT. 3R0 FLOOR SALCK MAssacmusg, , 01970 TELCiMOWD 07&74S.9595 EXT. 380 FAX'970-740-98" KINEsALsr CojeCOLL MAIM* AUSM 34=6 John N. Cur Jr., Esquire 9 North Suva Salem,Ma.01970 RM 4 Bentley Strao Dar W. Carr. I have reviewed the intbrmadton regarding the legal status of d Huntley Street. It is my opinion that 4 Bentley is a 3 family dwalliag. It is my understanding&W the third unit u Protected Sfi m my action by the City due to the provisions fMaw General L w 40A. BoIf ard of�Appeab.to appeal this dererseinadona you most Ala an appeal with the Salem Zoning R should be noted, Cite Issue of the three family status is not before the Board. The issue before thb Bond is the exterior deck and stsi way. Siacsr ' Thomas St.Pian zonics Batbnx went officer Budding Commisdoner cc: Philip Wysor.Esq Elizabeth Rennatdo Solicitor Jerry YatisoU Assistant Sokitoc AFFIDAVIT OF SANDRA A BALD—WIN CO CERMG 4DIMIxy STRM 1, Sandm J.Baldwin.bomb duly swam hereby swear that the following is true: I. 1 reside at l Washington Street,Salem,Mauarhweds 01970. 2. 1 am an office monew of the Boston Law firm of Goodwin Ptodar, faunally Goodwin,Procter do Hoar. 3. My mother,whose maiden name was Helen Barto(eld,grow up in the Butuch ft*homestead along with her 6 siblings,mludiag our uncle, Banard BarOokK who is also submitting sn atlidavit,along with his wife, Jennie. 4. 1 on rely familiar with 4 Henley Sheet,Salem,Maass,not only beau I grew up at 2 Bentley Street,but also because I continued to vitt mmmeaous glands and ttlatives in the neighborhood even slier moving out of4r3eatley Sired in 1954. 5. I can unequivocally shoe that tmtl119"(at a minimum)4 Bewley Strout, Salem,MA had bean continuously opented as a 2-f nay spataeut budld M with one apatmeat on the Sna floor sad the otber on the second 6. I now ratline that a vatime was nam obtained for 4 Batley Sonet to become a 3-tinily property,nor was it sed as s legal 3-fiumrily property as of the ereadon of the unseat zoning in 1965. Ir Sigood user oath this day of July 2006. Sandra J. Baldwin wt+'�AVIT OF JEDiNlE HARTIYICIQ CONS 4 H1EMMYS'1RZ ET I.Jrmmc Butrucki.being duly sworn.hacby swear that the fullowi ng is true: 1. I cmrway reside at 122 Locust Street,Daman.Massachusetts 01923 with my husband of 65 yearn,Bernard Battaickl. 2. Fran the time my husband and I nwriod in 1941,nnt111998 (approximately).we visited my sisters and brothers,who resided in the Barhricld hn*homestead at 2 Bartley Street,Salem,Mataachuteft viru"y every weekend. 3. I can=w4u dorsally stave Som first-hand kwwlodge that 4 Dcudey Saect was ccnthnsou*used as a 2-$a3tjy spartaamt building froto.1941 to at least 1998(at a miatmam).which conaiabed of a fust flocs unk and a second unit on the second door. Signed nada oath this Al day of July 2006. Jennie Baxtaiuld 0 I,Bernard Bavaicld,being My mom bete-by nmK that the following is true: 1. I currently reside at 122 Locust Street,l=veM Massachusetts 01923 with my wipe of 65 years,Imnie BattaiickL 2. From the time Amy wife and I maned in 1941,uMA 1998(Vproxbndely), we visited my nsmta and brother',wba resided in the Butoicki fmmd homestead at 2 Bentley Sheet,Salem.Msssaahusella.VUIWWy avuY weekw& Ob"from f>Ysr-hand 1v>�8e do 4 Bmtlay Street 3. I emn oY tidlding from 1941 to at �g coaindnw�auoosly used as a 2-i�'1y least 1998(at a mites),which of a first Boor omit,and a soeond unit on the second floor. trC Signori under oaththis //4 day of Jdy 2006- Bernard Bartnicki ASF AViT OF MARUNM BIC1C CONCl tMG 4 B21I'LlLt1t srl m 1,Marianne Birk,being duly swam hereby swear that the following is trtw 1. 1 euQw*reside at Unit No.217 of the Chesty Hill Condominium Apmtmanb,4 Duch Pond Road,Daae M Maasachutosts 01923. 2. My brother,Staoley Dame,and I lived at the second flan:unit at 4 Bentley Street,Salem,Mas acluu eft fioah 1957 to 1961 inclnaive. 3. Durmg the wore time we resided at 4 Bentley Simi,the property wss operated as a 2-family sparmneat building. 4. In 1%1 we moved jugs around the comer to 155 Derby Street,where we continued to reside hmlrl 1968. 5. $vw ager my bwdw and I moved to 155 Derby Street in 1961,we condoned to be very i3smilier with 4 Bentley Street not only because we we indwately famrh with the neighborhood m general,having grown op there,but also became we had aevaal Edends sad Motives living on Bentley Strad,wpluding our cousins,Philip and Louie Swinmcb,wbo resided at 14 Bentley Street. 6. During rho period 1961 tol%8 inclusive,4 Bentley Street was bitewise confimuoudy operated as a 2-tinny spartownt building. 7. I am not related by blood or by marriage to Linda MoustWds of 2 Bentley Street,Salem,Massaehusatts,01970. Signed render oath this l y Ii day of July 2006. --J� anue Bkk AFFIDAM OF WU idAN'VVaMM Cnx['tWUNG 4 BENB U STRM 1.William Wilson.being duly staorn.berebY Mew that the following is true: 1. I caarendy reside at 4200 South East 470 Place.Ocala,Florida 34480. kid 2. Dating 1963 and 1964,I resitdod in th C floor sperbacut at 4 Bentley Street,Salem Maswchv during I sed 1964. 3. As I am 73 years old now.I was thin 43 and 44 yeah old. 4. During my entire accupawy of my first Hoar sperhawd at 4 Bentley sued,the pmpmty was operated as a 2-family apartment building,the Mpadis unit being than occupied by as Edward Lassiter and NO wi* Awa LmsiEal. 5. I am not related by blood or by marriage to Linda Moustakis of 2 Bentley Sheet.$stern,Mamachusotts,01970. Signed uudwr oath this�� day of J*2006. William Wilma wFF(DAV1T OF C7'4Pi[,11:Y�� cetyl 1,Stwky Darm beim duly swum,busby sww the the following is trne 1. I curtraatly reside at 12 Cedat Hill Drive.Dsavets,Mmeamse a'0'923- 2. My Obw.Maine gist,and I lived at the second&m unit at 4 Heatley Std,gales setts frau 1957 to 1961 inclusive 3. During the canto time we resided at 4 Batley Sheol,the Fs`) y was operated as a 2-family Vatned building. 4. in 1961 we moved just wooed the coo=to 155 Derby Street;'hate we wed to raAaa until 1968. S. Even arks my sista and I moved to 155 Derby Sheet in 1961,we continued to be vay famMw with 4 Beazley Street,not only bec"A we were hely familia with the netghbotltood In gvos lime oa up One,but slap bwaa+se we had seventl friends end gesrtioy Sfzeu,including out eousins,PbIhP and Louis Swioitrb,who resided at 14 Bentley Street. 6. During the Period 1961 to 1968 inclusive,4 Bentley Street was 1t7tewise canthi dusty opotatod as a 2-family ep a ma t buildb* 7. I am not solamed by blond cr bymwj&pto Linda Moustalds of 2 Bentley Strea ,Salem.MwMachmetta,01970. Signed under oath this /"day of July 2006. unity APPLICATION FOR APPLICATION NO. (COURT USE ONLY) PAGE Trial Court of Massachusetts /-of COMPLAINT _ /_of_?_ District Court Department y 1. I,the undersigned complainant, request that a criminal complaint issue against the accused charging the offame(s) listed below. If the accused HAS NOT BEEN ARRESTED and the charges involve: Salem District Court 65 Washington Street ❑ONLY MISDEMEANOR(S), I request a hearing ❑ WITHOUT NOTICE because of an imminent threat of Salem, MA. 01970 ❑ BODILY INJURY ❑ COMMISSION OFACRIME ❑ FLIGHT S%-i WITH NOTICE to accused. ❑ONE OR MORE FELONIES, I request a hearing D WITHOUT NOTICE ❑ WITH NOTICE to accused. ❑WARRANT is requested because prosecutor represents that accused may no?appear unless arrested ARREST STATUS OF ACCUSED El HAS NOT been arrested s �'*, �,,.`; h7 "" "3. .ax s M"5 " • . .sem , `' Y sa.. i. +rrl4x . .+ tea. a i.,, r.[`T .� �` �^' e;:',�q 1111 NAME(FIRST N11 CAST)AND ADDRESS BIRTHt ATE SOCIALSECURITY NUMBER .97 '• /CA7<�� !✓SCF'*. PCF NO. MARITAL STA"fUS DRIVERS LICENSE NO. STATE L /Jj GENDER HEIG EYES FAIR RACE —T COMPLEXION i SCARS/MARKS/TATTOOS BIRTH STATE OR i,TR DAY Pf''ON D EC EMPLOYER/SCHOOL MOTHER'S MAIDEN NAME(FIRST MI LAST) i FATHERNAME(FIRST MI LAST I xy_ y COMPLAINANT NAIVE(FIRST MI LAST) C COMPLAINANT TYPE /rilUNiC/� *�i D �' CSf�// f G�P�£.a� ✓.f'. ❑ POLIOE IT CITIZEN NO OTHER ADDRESS ASs iS'rA.wr j$ili t/�itl6 /M S't'EC;7b.� PLACE OF OFFENSE /ZO L✓�N/n/4i`�rN ,S'T, INCIDENT REPORT NO OBTN S�� t SIA - CITATION NO(S) OFFENSE ODE '.j DESCRIPTION OFFENSE DATE 1 �n 11 i3 E,mvreE '7-0 ei5£ r646 /��19`,_ S72c)C—, Orr/- o, ✓ ei VARIABLES(I victim name,controlled substance,type and value of property other variable information;see Complaint Language Manual) OFFENSE CODE DESCRIPTION OFFENSE DATE 2 VARIABLES OFFENSE CODE DESCRIPTION OFFENSE DATE 3 VARIABLES REMARKS COMP INA T' SI A RE DATE FILED X l l % � COURT USE ONLY A HEARING UPON THIS COMPLAINT APPLICATION D T SHE li TIME OF F�A '••. r t 1/ ;D LY ---9- WILL BE HELD AT THE ABOVE COURT ADDRESS ON AT NOTICE SENT OF CLERK'S HEARING SCHEDULED ON: - NOTICE SENT OF.JUDGE'S HEARING SCHEDULED ON'. HEARING CONTINUED TO: APPLICATION DECIDED WITHOUT NOTICE TO ACCUSED BECAUSE: ❑ IMMINENT THREAT OF ❑ BODILY INJURY ❑ CRIME ❑ FLIGHT BY ACCUSED ❑ FELONY CHARGED AND POLICE DO NOT REQUEST NOTICE ❑ FELON"CHARGED BY CIVILIAN;NO NOTICE AT CLERK'S DISCRETION a 44,1 ❑ PROBABLE CAUSE FOUND FOR ABOVE OFFENSE(S) ❑ NO PROBABLE CAUSE FOUND NOS). ❑ 1. ❑ 2. ❑ 3, BASED ON ❑ REQUEST OF COMPLAINANT ❑ FACTS SET FORTH IN ATTACHED STATEMENT(S) ❑ FAILURE TO PROSECUTE ❑ TESTIMONY RFcbRDED:TAPE NO. ❑ AGREEMENT OF BOTH PARTIES START NO. END NO. ❑ OTHER: ❑ WARRANT ❑ SUMMONSTOISSUE COMMENT ARRAIGNMENT nATP - APPLICATION FOR APPLICATION NO. (COU9T USE ONLY) PAGE Trial.Court of Massachusetts CRIMINAL COMPLAINT ! of 2 District Court Department I,the undersigned complainant, request that a criminal complaint issue against the accused charging the Salem DA-Atvlct Court offense(s)listed below. If the accused HAS NOT BEEN ARRESTED and the charges involve: 65 washirtmon Sheet D ONLY MISDEMEANOR(S), I request a hearing D WITHOUT NOTICE because of an imminent threat of Salem, LLA. 01370 ❑ BODILY INJURY CI COMMISSION OF A CRIME ❑ FLIGHT,,E9 WITH NOTICE t0 accused. D ONE OR MORE FELONIES,I request a hearing D WITHOUT NOTICE D WITH NOTICE to accused. ARREST STATUS OF ACCUSED D WARRANT is requested because prosecutor represents that accused may not appear unless arrested. El HAS ;.TYI HAS HOT been arrested NAME(FIRST MI LAST)AND ADDRESS BIRTH PATE SOCIAL SECURITY NUMBER o7l /'PCF NO. MARITAL STATUS DRIVERS LICENSE NO. STATE !l>/ j GENDER HEIGHT WEIGHT EYES HAIR RACE COMPLEXION (SCARS/MARKsrrATTOOS BIRTH STATE OR COUNTRY DAY PHONE EMPLOYER/SCHOOL MOTHER'S MAIDEN NAME(FIRST MI LAST) FATHER'S NAME(FIRST MI LAST) COMPLAINANT NAME(FIRST MI LAST) COMPLAINANT TYPE Al. PD D POLICE D CITIZEN ©-OTHER v ' ADDRESS �) s ,,r ,. ; ^ ,r+ , r�, ,•'..�fFC f_ PLACE OF OFFENSE/�. INCIDENT REPORT NO. OBTN r r - CIT ION NO(S). OFFENSE ODE r DESCRIPTION - OFFENSE DATE P !/n j1 ij %�rfL t.:. L 77" F" ,,,,,•�,.._ flf t� . .,. J<J. ! '�/ r: : � i 1 VARIABLES(e.g.victim name,controlled substance,type and value of property.other variable information;see Complaint Language Manual) OFFENSE CODE DESCRIPTIONOFFENSE DATE 2 VARIABLES LVAR1EAN8:L:ESBE CODE DESCRIPTION OFFENSE DATE 3 REMARKS COMP INANTS SlGt TORE/ DATE FILE COURTUSEONLY AHEARING UPONTHIS COMPLAINT APPLICATION _ T��.rp}FHEAR��N �!e�c'^-)t r TT OF. A),i C U OILY WILL BE HELD AT THE ABOVE COURT ADDRESS ON �.( ), CT`fit �.'� A i t AT r D`xR'2(011 1) COMPLAINANT'S COPY, STATEMENT OF FACTS APPLICATION NO.(court use only) PAGE 1 Trial Court of Massachusetts IN SUPPORT OF 2 OF�'_' District Court Department " APPLICATION FOR CRIMINAL COMPLAINT COURT DIVISION The undersigned alleges the following as a Elfull orp partial statement of the factual basis for the offense(s)for which a/criminal complaint is sought. f .9 2C'�s'''/✓� S`'l,>//,(?CR-le 9T ✓ C .__�CJ,rf �G'R/re�✓_�__/r /'!;1;✓Ce' �1' V4 —LZO r✓r.,f , /Jn 92d a.f '3 ZcL G ._4z G✓/�_/Jc nl�--/— --- _ __�klzrLsC__`�fo _, �_1 /oU_�--- fz r.�_Sf/c_'vci, c> L.r1r f/r,•-.(! ._c3O---- _ v�a1 �'EZroEr�_+ �J _ ee_z�..er _X �'x°-cje-j -w------ ------------------------------------------------------------------------------------------ ----------------------------------------------------------------------------------------- _--------------- ---- -------------- _ ----------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------- _ (Use additional sheets if necessary) PRINTED NAME SIGNATURE I AM A: DATE SIGNED /o ❑ LAW ENFORCEMENT OFFICER x Z! CIVILIAN COMPLAINANT OR NIITNESS ----------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------- REMARKS SIGNATURE OF CLERK-MAGISTRATE/ASST.CLERK.1 JUDGE DATE SIGNED X OC-CR-34 (7I04) I ' e oAn OF vewrt wart HIL OWWO Loutatt 8/13/84 4395 Paul Stunts 4 Bentley Street oweasto►K w..a smuts N&OF FAMI M wiun cost s7RUCTUM MATMAL 2 $ 1,500 . Dwelling 1lI�DH ' Strip and reroof,remrnro dower* where necessary,replace with newer windows. a.3 three l3) family 11i as per the Zoning Enforcement Determined to Officers.: 1 2/27/97 f97-97 Renovate 3rd fl. as per plans: new bath b replace wa1ls.J.JtJ.7000. 4 (Owner: Nicholas Osgood). Certificate of Occupancy issued 5/15/97 by X.M.N. for permit i 97-97 _ 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: 978-745-9157 . Elizabeth Renard, City Solicitor Kaufinan&Frederick 265 Essex Street Salem,MA 01970 Re: 4 Bentley Street, Salem,Massachusetts Dear Thank you for simultaneously permitting me to copy Nina Cohen and Tom St. Pierre with all communications as they are sent out or received. Enclosed please find my follow-up request letter to Phil Wysor of today's date(including enclosure)which is self-explanatory. Obviously I am attempting to at least narrow the legal and factual issues so that the ZBA may make the most orderly and informed decision possible. I don't expect any problem in completing my Memorandum of Law on or before Tuesday,August 15,2006 and I thank you again for the extension. , John H. C , Jr. Enc. Cc. Philip C. Wysor,Esq. Nina Cohen,Chairperson, Salem Zoning Bg1rd of Appeals Tom St.Pierre, Salem Building Inspector Ms. Linda Moustakis John H. Can:,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 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 CITY OF SALEM BUILDING DEPARTMENT HOMEOWNER LICENSE EXEMPTION Please Print DATE a�aY 9-7 JOB !� �En�/E ecuon o�j LOCATION Street Ad ress f Town Number v� O,1'a r r�p�'/TDo . /Yi /7 rc�oc� v rk prone "HOMEOWNER"N�e�'D", • Hom Phone PRESENT MAILING ADDRESS d Jif- . yip Code State City/Tow'n ,, was extended to ,The current exemption of "homeowners Of six units or less an s toengage an individual for hire include owner engage dwellings anin that the owner to allow such ossessnarlicense, Provided Code Section 109.1.1) who does not Por r. (State Building act as sup DEFINITION OF HOMEOWNER' arce1 of land on which he/she Person (s) who owner a P on which there lyttachis or resides or intends to reside, dwelling, a one to six family use and/or farm in to be, to such detached structures accessory homeowner• on structures . A person who constructs more than one home in eriodshalllsubmiteto thedere,Building Official, a two�year P that he/she be Such "Homeowner" the Building Official, a form acceptable to work performed under the building responsible to all such permit. (Section 109.1•l) assumes responsibility for j "homeowner" Code and other The undersigned rules and regulations . compliance with thbySiaWSBuilding applicable codes , The undersigned "homeowner"certifies thaDeptartment minimum understands the City of Salem Building that inspection procedures and requirements auirementse/she insp 1 with said procedures and req will comply _ 6 HOMEOWNER' S SIGNATUR APPROVAL OF BUILDING INSPECTOR {f NOTE: Three family dwellings 35.000 cubic fee r arger, will nt required to comply with State Building Code Section 127.0. Construction Control. stated On Code InfOl ion Clearl Reverse Side Of This Form over FILE/C. O. COPY ` CITY OF SALEM CERTIF C TE OF OCCUP NCV SALEM, MASSACHUSETTS 01970 Issue � Permit k City of Salem Buildin Dept. d DATE FEBRUARY 27 97 97-1997 APPLICANT C & D CONSTRUCTION 42 19 PERMIT RDERMIT NO. ADDRESS ` LYNN (NO) (STREET) CONTR 'LICENSE) CITY STATE MR ZIPCODE 01902 - - TEL.NO. PERMIT TO ALTERATION (_) STORY TWO OR MORE FAMILY NUMBEROF (TVPE OF IMPROVEMENT) NO. (PROPpSEO USE) DWELLING UNITS 3 r . AT(LOCATION) 0004 BENTLEY STREET =ZCONINGBETWEEN -------------------------- (CROSS STREET( AND SUBDIVISION MAP 35 LOT 0376 BLOCK LOT000SIZE3432 SQ FT BUILDING IS TO BE FT.WIDE BY FT.LONG BY FT.IN HEIGHT AND SHALL CONFORM IN CONSTRUCTION I 70 TYPE USE GROUP BASEMENT WALLS OR FOUNDATION (TYPET REMARKS: RENOVATE 3RD FL APT: REMOVE & REPL WALLS & RENOVATE BATH AS PER PLANS. J5 AREA OR VOLUME____._.__ ESTIMATED COST$ 7, 000 PERMIT ICUBIGSOUARE FEET( FEE $ 47. 00 OWNER_OSGOOD NICHOLAS M ADDRESS 4HENTLEV ST SALEM BUILDINcDEPT. f By J. J. J f Tuic ocou��.-..........,..,•„., r.n nnnuov nuv CTCCCT nn�••— ... __-. JOB SITE COPY °v�� CITY OF SALEM BUILDING '11.e:a�It SALEM, MASSACHUSETTS 01970 PERMIT ecu DATE FEBRUARY 27 1997 PERMIT NO. 97-1997 APPLICANT C & D CONSTRUCTION ADDRESS 42 COOLIDGE RD (NO) (STREET) (OONTR'S LICENSE) CITY LYNN STATE MA ZIP CODE 01902 TEL.NO. PERMITTO ALTERATION ( ) STORY TWO OR MORE FAMILY NUMBER OF DWELLING UNITS 3 (TYPE OF IMPROVEMENT) NO. (PROPOSED USE) ..- c�004 BENTLEY STREET ZONING AT(LOCATION) DISTRICT (NO.) (STREET) BETWEEN AND .(CROSS STREET) - (CROSS STREET) SUBDIVISION MAP 35 LOT 0°76 BLOCK SIZE 0003432 SO FT BUILDING IS TO BE FT.WIDE BV FT.LONG BV FT.IN HEIGHT AND SHALL CONFORM IN CONSTRUCTION TO TYPE USE GROUP BASEMENT WALLS OR FOUNDATION (TYPE) REMARKS: RENOVATE 3RD FL APT: REMOVE & REPL WALLS & RENOVATE BATH AS PER PLANS. AREA OR PERMIT VOLUME )CUBIC/SQUARE FEET) ESTIMATED COST 7, 000 FEE $ 47. 00 OWNER OSGOOD NICHOLAS M 4 BENTLEY ST SALEM MA BUILDING DEPT. ADDRESS BY J. J. J THIS PERMIT CONVEYS NO RIGHT TO OCCUPY ANY STREET,ALLEY OR SIDEWALK OR ANY PART THEREOF,EITHER TEMPORARILY OR PERMANENTLY,ENCROACHMENTS ON PUBLIC PROPERTY,NOT SPECIFICALLY PERMITTED UNDER THE BUILDING CODE,MUST BE APPROVED BY THE JURISDICTION,STREET OR ALLEY GRADES AS WELL AS DEPTH AND LOCATION OF PUBLIC SEWERS MAYBE OBTAINED FROM THE DEPARTMENT OF PUBLIC WORKS.THE ISSUANCE OF THIS PERMIT DOES NOT RELEASE THE APPLICANT FROM THE CONDITIONS OF ANY APPLICABLE SUBDIVISION RESTRICTIONS. MINIMUM OF THREE CALL INSPECTIONS APPROVED PLANS MUST BE RETAINED ON JOB AND THIS CARD KEPT WHERE APPLICABLE SEPARATE REQUIRED FOR ALL CONSTRUCTION WORK: POSTED UNTIL FINAL INSPECTION HAS BEEN MADE. WHERE A PERMITS ARE REQUIRED FOR 1.FOUNDATIONS OR FOOTINGS. ELECTRICAL,PLUMBING AND 2,PRIOR TO COVERING STRUCTURAL CERTIFICATE OF OCCUPANCY IS REQUIRED,SUCH BUILDING SHALL MECHANICAL INSTALLATIONS. MEMBERS(READY TO LATH). NOT BE OCCUPIED UNTIL FINAL INSPECTION HAS BEEN MADE. 3.FINAL INSPECTION BEFORE OCCUPANCY, POST THIS CARD SO IT IS VISIBLE FROM STREET DING INSPECTION APPROVALS - LUMBING INSPECT) N APPRQVA4S ICAL INSPECTION APPROVALS ! I 'C ? '✓ 1 his pZ 2 2 2 BOARDOF HEALTH GAS INSPECTION APPROVALS FIRE DEPT.INSPECTING APPROVALS OTHER CITY ENGINEER 2 2 IY�3MIY"" ('5 WORK SHALL NOT PROCEED UNTIL THE PERMIT WILL BECOME NULL AND VOID IF CONSTRUCTIONW .RK-0S � INSPE6nCk INDICATED ONTHISCARD INSPECTOR HAS APPROVED THE VARIOUS NOT STARTED WITHIN SIX MONTHS OF DATE THE PERMIT ISI UE6. CAN BEfARRANGED Fpq BY TELEPHONE STAGES OF CONSTRUCTION. AS NOTED ABOVE. OR WRITTEN NOTIFICATION. ' I -- - jl I y a -- -•—• t .,:— �j _ �ter- + r 8 -t7F ff1 gy�geet to appmv by nnY Atbor j , '�• FiREPRBVEld'i'IO __--- _ IFIfATiDN cATic 0.OF F1Y — -- I FYM AND LACATICN OF FIRE PRAT ICES ARE SU6IECT TAA :ALL-Flit$ygATEGTIAN_DEV__.. - -- ---- —_--- ` __-- --._---- -`_— fINALTESf PtiD lF: 1--TION,FAR ^� _- -_._ FINA..+,.r AND iK- C 1-0- 'l� Lc' cc_ Is Property Located in yes_No _ the Conservation Area? BUILDING PERMIT APPLICATION FOR: Permit to: Pool, (Circle whichever apply) Roof, Reroof, Install Siding, Construct Deck, Shnned, Repair/Replace, Other:.,rN T La PLEASE FILL OUT LEGIBLY &COMPLETELY TO AVOID DELAYS IN PROCESSING TO THE INSPECTOR OF BUILDINGS: The undersigned hereby applies for a permit to build according to the following specifications: Owner's Name s/f,,, Address & Phone Architect's Name Address & Phone f.�.� Jew Dou„F C w ✓l Y . .� " 1., yr / ' a Mechanics Name c , �Y,, r,,� 0/949 6n s .? -Sa9, ri-Ert CGrr(Jr0/ 43 t , Address & Phone /fCf �. at .�rr� o° What is the purpose of building? 3 Material of building? �✓oo� II a dwelling, for.how many families?�— c Asbestos?&O n e Will building conform to law? y t f State License # Estimated cost City License p QQ Home Improvement � � �TTr r�J� iic. Signature of Applicant SIGNED UNDER THE PENALTY OF PERJURY DESCRIPTION OF WORK TO BE DONE / //�� X&ti"✓a /Y o U f ?✓If Flo . dam; c a ` ',.,,,� J'. /:� i' !'!f 4C-e yrf 1�✓v1/Vr✓/ l� //✓ G r/ q / A MAIL PERMIT TO: -VUST-BEffL DJ APPROVED BY T44E =pFXT,pA ,PF,tIGR TP A PERMIT BEING GRANTED J J CITY OF SALEM No. �� 9� �� Date a a 97 Ward � mned�� Zoning District Is Property Located in Location of q the Historic District? Yes—No Building 'L/e jlll Ee JL- IS Property Located in the Conservation Area? Yes_No BUILDING PERMIT APPLICATION FOR: Permit to: (Circle whichever apply) Roof, Reroof, Install Siding, Construct Deck, Shed, Pool, Repair/Replace, Other:,?-,4 Fro . A�r.Irar r /prn��fio� PLEASE FILL OUT LEGIBLY & COMPLETELY TO AVOID DELAYS IN PROCESSING TO THE INSPECTOR OF BUILDINGS: The undersigned hereby applies for a permit to build according to the following specifications: Owner's Name w'c,A0/tis /1'7- QJ2r od Address & Phone Z/ P-&4t J�, FF f,. /-1 �.s"o�1 7y i— O S-2-S Architect's Name Address & Phone Mechanics Name C..11 n C�•,f��fi �- r � ' o F,e,( Cair!/roi y} uo/:dyt Ra, Ly-o.. /3i4 O/9✓} CO)-S9?-,S"ay9 Address & Phone QY/ Ove, I,, 6 r�,;u w�D-1 K6A/- sihk.,/ �0/9yt/r 7)Glr//�v What is the purpose of building? Material of building? `l If a dwelling, for how many families? 3 Will building conform to law? Asbestos?/Va"C Estimated cost -7,D J 0 City License n State License a Home Improvement �� — Lie. 1 Signature of Applicant SIGNED UNDER THE PENALTY OF PERJURY DESCRIPTION OF WORK TO BE DONE -- i -- -_ --- -- - - 11 I I j i 1 - LLQ n+n�y— a . Lo✓^ ' I -- — . -- ko L�1�t�-- -- --- 3 ol ir , -T- -- ----r�FR9 otba Subject to approv by�' -- - ---- - --__- Waffi6n'�9s [B7rea FIRE PREVENno -- _; p JOCAT10N Of /�pPRONED SOL El'C FORL ------ ---- ---- $ Oq FIRE PROT CTAON-OEPtCE� OF rfM PND LOCPTI R0 dllC£S ARE SUBJECT TO: — _ T DN_ D _ T _:q_L-fIF. 9 - _ 0�07L1 --r TL TEST^TDI .FcG ION�FORC i FIN APPLICATION FOR APPLICATION NO. (COURT USE ONLY) PAGE Trial Court of Massachusetts CRIMINAL COMPLAINT L of-L District Court Department I,the undersigned complainant,request that a criminal complaint issue against the accused charging the offense(s)listed below. If the accused HAS NOT BEEN ARRESTED and the charges involve: Salem District CioUrt 65 Washington Street 7 ONLY MISDEMEANOR(S), I request a hearing O WITHOUT NOTICE because of an imminent threat of Salem, MA.01$70 { ❑ BODILY INJURY ❑ COMMISSION OF A CRIME ❑ FLIGHT ❑ WITH NOTICE to accused. ❑ONE OR MORE FELONIES,I request a hearing ❑ WITHOUT NOTICE ❑ WITH NOTICE to accused. ARREST STATUS OF ACCUSED ❑WARRANT is requested because prosecutor represents that accused may not appear unless arrested. ❑ HAS HAS NOT been arrested "�INFORMATION ABOUTACCUSED, NAME(FIRST MI LAST)AND ADDRESS BIRTH DATE SOCIAL SECURITY NUMBER PCF NO. MARITAL STATUS Lt {f ( j Lj !�r( C 7� (,r/ + �� DRIVERS LICENSE NO. p STATE /C!p P � (�P"I ! GENDER HEIGHT , / WEIGHT EYES i5A (C 0 ) r;-/ HAIR RACE COMPLEXION SCARS/MARKS/TATTOOS BIRTH STATE OR COUNTRY DAY PHONE IC IEMPLOYER/SCHOOL MOTHER'S MAIDEN NAME(FIRST MI LAST) FATHER'S NAME(FIRST MI LAST) INFORMATIONCASE COMPLAINANT NAME(FIRST MI LAST) / Alf 1 COMPLAINANT TYPE �/ PD C' ' [ / �r f(' �{1/f �J ❑ POLICE CE OF OFFENSE EN p] OTHER ADDRESS 1 t-- Id INCIDENT REPORT NO. OBTN CITATION NO(S). OFFENSE CODE - DESCRIPTION OFFENSE DATE VARIABLES(e.g. victim name,controlled substancetype and value of property.other variable information;see Complai Language Manual) OFFENSE CODE DESCRIPTION OFFENSE DATE 2 VARIABLES OFFENSE CODE DESCRIPTION OFFENSE DATE 3 VARIABLES REMARKS COM T INANT'S SIGNAU DA f FILED X rff � r/ V/-)A COURT USE ONLY A HEARING UPON THIS COMPLAINT APPLICATION DATE OF HEARING TIME OF HEARING COURT USE ONLY 30 WILL BE HELD AT THE ABOVE COURT ADDRESS ON} ��. I J� A7 ,'00 T �� DCCR-z(00104) COMPLAINANT'S COPY( uTAT��T ®F F�iCT'S APPLICATION NO.(court use only) PAG IN SUPPORT OF tDistrict rial Court of Massachusetts 0. jo APPLICATION FOR CRIMINAL COMPLABNT - Court [lepa3't4leellt The undersigned alleges the following as a ❑ Full or partial statement COURT DIVISION- of the factual basis for the offense(s)for which acriminal complaint is/sought —/Ov E:. c `i:e�✓c U1rc/ /Ji</� 4 N�c� U2� S"ii2 9Je ,fif �' i� _. i 7�S C✓4:.5 ice✓ GrC�rlc.v' 4� �,.},��r- 1 -� / �"` ! _ ----------------- ---------------------- �'�2t� 4cCzS ��H/rEr✓ .✓=f ��.i/J✓C_e �e v�� c�✓ c ✓.Jc..✓z� v� ffo ----- --`✓=�'� �l'�' /d' �._.��= �/(�.- 11r✓_-._. c�� /��c�f_x c .s_� t't_cG--..-s /l�}�st c�;11 J�/v _-`�_-f1�2__�,L<,�e� f•__�F >a9�t�c Y-fi;S_ S��G�e��:,�°c___Yu,�Li_._u __v�4_ c*��:__ 7�� ___,, ------------------- ------------------ --- --- ---- _ RINTED NAME -- � (Use ad'iihora sheets if nzresaarv) SIGNATURE I DATE a CNED` hcivm' Abl ENFORCEMENT OFFICIVILIAN COMPLAIN.AN T OR�.,:v�L'-'` 'u3V9+'S','h. tl ` ia'igriXu � --------------------------------------------------------------------------- Ai?,RK" �SIGNATURE OF ERKM GISTR.ATE a. . CLER -- —.-" . .�.9j"—"`- ..'-.— �LER4 iDGE X PPLICATI10N FOR ((IOUP,7 use oN t MINAL COMPLAIINT Tjal Courtof Massachusetts I. , -------- District Cow! Depadment undersigriRd c0m0amant, reqUPSt that a crim.n.. J� a;corn is against the accused Charging the ns'_ts) Iisted aelov,,. if the accuse) HAS NOT BEEN ARRESI Eo and the Charges Insoles. Salem District Court 65 Washington Street )NLY MISDEMEANOR(S), I risj,-_ssL a hearing 0 VVITHOUT NOTICE because of an imminent thre'I of Salem, MA. 01970 -1 BODILY INJURY D COMMISSION OF A CRIME D FUGHT/K 14111TH NOTICE to dCCLbeC1. )NE: OR MORE FELONIES, I reqLlsst a heantig 0 WITHOUT NOTICE D MTN NOTICE,icl Oc.,it, JAPRANT is rcc,test ed becawsp',irosiscilor niprjsents I,'-,at accUsedmay tilt app:-a, unies.5 tiriestocf. �tRRS F STATUS OF ACCLJ___FF1___ 11_� HAS HAS HOT been ariested Z It{R9 , MI LAST)AND AGDR�SB BIRTlE SOCIAL SECURITY NUMBER PCF NO. h—AR-11ALS—IA-7US &exl' S_ X 1 I DRIVERS LICENSE NO. STATE A�w I ENDER HEIG I EYES L RACE COMPLEXION SCARS/MARKS/TATTOOS BIRTH STATE OR TRv 1 DAY PI DEC 112 OYER/SCHOOL MOTHER'S MAIDEN NAME(,FIRS 7 MI LAST) 1 FATHER" NA I ME(FIR— ST MI LAST) PL.4INANT PlAME(FIRST MI LAST) TITTYPE D 0 CITIZEN �_COTHER "'I'Atl*:- OFFENSE REPORT NO. OSTN L CITATION NOb3), FFENSE -ODE DESCRIPTION OFFENSE DATE zl; 7V lvee_! 1WABU-S(e.g victim name,controlled substance, type and value of property other variable information;see Complaint Language Manual) TENSE C-0 D_E�1 DESCRIPTION OFFENSE DATE 7HWBLES =FLNSE CODE DESCRIPTION OFFENSE DATE RAETH- W-S COMP AINAA^ITRE DATE FILED X "x" TINE OF I- W MMJNENTTHREAT 0FDi D CRIUME D FLIGHT BYAGCJSED rl I I FELGNYAEGED,all. POLICE DO NOTIREQLES I NOTICE I -TA! i4l t UND NIF PARTIES CITY OF SALEM PUBLIC PROPERTY --- DEPARTMENT KIMBERLEY DRISCOLL - MAYOR 120 WASHINGTON STREET♦SALEM,MASSACHUSETTS 01970 TEL:978-745-9595 ♦FAx:978-740-9846 FACSIMILE TRANSMITTAL SHEET FROM: ,/o% TO: JO{j n/ �•cY/�i2 COMPANY: l DATE: ?//O /�(a FAX NUMBER: /30925-_ OOG ip PHONE NUMBER:: TOTAL NUMBER OF PAGES: RE: L/ gel, el,1/�/ c� /Z' SUBJECT: COMMENTS �ONDIT{d,, CITY OF SALEM MASSACHUSETTS PUBLIC PROPERTY DEPARTMENT n m 120 WASHINGTON STREET, 3RD FLOOR 7 ( a SALEM, MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 EXT. 380 W� FAX 978-740-9846 KIMBERLEY DRISCOLL MAYOR October 25, 2006 Nicholas Osgood 4 Bentley Street Unit 3 Salem, Ma. 01970 RE: Zoning Board Decision 4 Bentley Street Dear Mr. Osgood: As you are aware, the Salem Zoning Board of Appeals denied your application for a Variance to allow the staircase to remain. The staircase needs to be removed within 30 days upon receipt of this letter. Failure to remove the staircase will result in a complaint being filed in Salem District Court. If you have any questions, please contact me directly. Sincerely, Thomas St. Pierre Building Commissioner Zoning Enforcement Officer cc: Jason Silva, Mayors Office Elizabeth Rennard, City Solicitor Jerry Parisella, Assistant City Solicitor Philip C. Wyson, Esq. John H. Cam, Jr., Esq. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 October 24, 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: Since you were in attendance at last Wednesday's hearing of the Salem Zoning Board of Appeal, at which the Board unanimously voted to deny the application of Nicholas Osgood for a variance to retain the already-built, 3-story exterior staircase at the rear of 4 Bentley Street,I need not summarize what transpired at said meeting in this letter. It is now after 3:30 p.m. on the Tuesday following said vote, ie. six days later, and at least so far,no attempt has been made on Mr. Osgood's part to even begin removal of what is now clearly an illegal structure. (Bear in mind that even if Mr. Osgood were to appeal the Board's October 18, 2006 denial of his application for a variance,which I very much doubt he will do, especially given the obvious legal futility and frivolous nature of such an appeal,the mere filing of an appeal alone does not automatically stay execution of the Board's vote, which would require his filing suit and going to court to seek a stay.) Needless to say, in view of all that Ms. Moustakis has gone through over the last 18 months to compel the removal of the staircase, especially in terms of expense, delay, and aggravation, she is unwilling to countenance any further delays on your and/or Mr. Osgood's part in having the staircase fully removed. In particular, Ms. Moustakis does not want to repeat the same kind of six-month delay that occurred between the incorrect issuance of a building permit by your office on May 23, 2005 and your November 22,2005 letter to Mr. Osgood finally awakening to that fact and informing Mr. Osgood that the staircase is"not exempt from zoning"and that he must seek a variance. It is regrettable (to say the least)that this only occurred after constant pressure from Ms. Moustakis over the preceding six-month period. It is even more regrettable that you allowed a further 2 'h-month delay between the date Ms. Moustakis sent you her September 5, 2005 formal written demand letter(copy enclosed) and the date you finally sent Mr. Osgood your November 22, 2005 letter. If such initial delays weren't bad enough,Ms. Moustakis is also deeply upset that you allowed a further four-month delay to occur between said November 22, 2005 letter and the deadline of Friday, March 24, 2006 you imposed for Mr. Osgood to file an application for a variance before commencing enforcement proceedings,which resulted in Mr. Osgood literally waiting until 10 minutes before your office closed on March 24, 2006 before filing his application for a variance. In view of this history,perhaps you can appreciate why it is that Ms. Moustakis is unwilling to countenance any further delays on your and/or Mr. Osgood's part. Indeed, Ms. Moustakis finally came to me last Spring out of sheer frustration with your willingness and/or ability to enforce the Salem Zoning Ordinance in any kind of competent or timely fashion. Given your apparent inaction since last Wednesday, she has no more confidence now,than she did last Spring. Accordingly, I am herewith formally requesting that you take all immediate action necessary or convenient to insure the complete removal of the staircase within the next fourteen(14)days, including (if necessary) seeking imposition of the maximum statutory fine for each day that said illegal structure continues to be up,measured(at a minimum from last Wednesday, and that you keep Ms. Moustakis and me fully apprised of same. Please be forewarned that unless you follow through on the foregoing by the end of this week,I will file a mandamus action against you in the Essex Superior Court seeking to compel you to do your clear duty, in which event I will be seeking separate fees against the City. I am also herewith formally requesting that you keep Ms. Moustakis and me apprised in a timely fashion of any application for a building permit from Mr. Osgood for a substitute new staircase. Given that he may have a claim against you and/or the City for the cost of the staircase that he built in reliance on the building permit that your office mistakenly issued on May 23,2005,I trust you will not allow any personal exposure on your or the City's part to influence you to relax in any way the Code requirements for a substitute new staircase. By separate cover and/or proceedings I will be dealing with the significant costs Ms. Moustakis has had to incur to cure this situation,which should not have been necessary had your office done its job at any number of stages in this whole sad affair, stretching all the way back to your predecessor in 1993,which raises troubling questions about the circumstances under which Mr. Trembly revoked his November 12, 1993 and November 29, 1993 written determinations that 4 Bentley Street was then a 2-family dwelling, and instead,without explanation, subsequently determined it to be a legal 3-family dwelling, and physically changed the field card accordingly, or caused someone else to do it. Would you or someone from your office kindly acknowledge receipt of this letter by date-stamping the enclosed copy of this letter. Thank you. V John H. Carr, Jr. Enc. Cc Mayor Kimberly Driscoll Elizabeth Rennard, Esq., City Solicitor Philip C. Wysor,Esq. Ms. Linda J. Moustakis—By Hand Matthew Kelleher, 0 floor owner, 4 Bentley Street—By Hand Victoria Regan, 2"d floor owner,4 Bentley Street—By Hand 1 da -6d Thomas St.Pierre Building Inspector Salem, MA. 01970 Dear Sir, d1 am writing this letter to request the revocation of Permit 1006-05 for a staircase and eck 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 add ne-half i cher property. It is also in violation of the state building of my code 780 CMR, 1014.12.1 which states that staircases and other structures shall be ten feet awayfrom the property lin es I request an answer in writing that there is another law that cfro t icts this code. Thank you, Linda J. Moustakis John H. Carr, Jr., Esq. 9 North Street Salem, MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 December 8, 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: It is now past 11:45 a.m.on Friday,December 8, 2006, or 13 days after the expiration of the 30-day period you gave Mr. Osgood to remove the illegal, 3-story, exterior staircase at 4 Bentley Street in your October 25, 2006 letter, and once again it appears that you have completely failed in your duties as Salem's Zoning Enforcement Officer because (1) the staircase is still up, (2)no effort has apparently been undertaken by Mr. Osgood to remove it,notwithstanding that it is now 51 days since the Salem Zoning Board of Appeal unanimously voted on October 18, 2006 to deny his application for a variance to retain the staircase, and (3)you apparently have not followed through with the threat contained in your October 25, 2006 letter to Mr. Osgood that"Failure to remove the staircase will result in a complaint being filed in Salem District Court." Of course, it took my October 24, 2006 letter to you(copy enclosed)to finally cause you to awaken to your duty to demand removal of the staircase in the first place, and it should also be noted that your 7 day delay following the Board's October 18, 2006 vote before sending Mr. Osgood your October 25, 2006 letter effectively allowed Mr. Osgood 37 days within which to remove an illegal structure that had already been up for over 18 months. You will also recall that on pages one and two of my October 24, 2006 letter I traced the whole sorry history of this matter as an explanation of why it is that Ms. Moustakis"is unwilling to countenance any further delays on your and/or Mr. Osgood's part in having the staircase fully removed." You will also recall that in the fourth paragraph of page two of my October 24, 2006 letter I specifically requested that you keep Ms. Moustakis and me"fully apprised"of all enforcement action being taken by you to have the staircase removed, and that in the sixth paragraph on page two I formally requested"that you keep Ms. Moustakis and me apprised in a timely fashion of any application for a building permit from Mr. Osgood for a substitute new staircase." Since I have not heard or received anything from you since receiving a copy of your October 25, 2006 letter to Mr. Osgood,and since the illegal staircase is still up, I can only assume that(once again)you have failed in your duties as Salem's Zoning Enforcement Officer regarding this matter. Ms. Moustakis has been waiting patiently since the expiration of the 30 days on Saturday, November 25, 2006 for you to commence effective enforcement action in keeping with your October 25, 2006 letter, and while she certainly didn't expect immediate action following the Thanksgiving long weekend, neither did she think that two full weeks would elapse with no apparent follow-through of any kind on your part. That such inactivity and further delay would occur at this late date, especially given the history of this matter, is all the more incredible. Accordingly, I am herewith repeating my formal written demand that you take such steps as are necessary to have the staircase immediately removed in its entirety, and if that requires the City having to do the job, then so be it. I am also herewith requesting that you seek imposition of the maximum available fine under the statute of$500.00 a day for each day the illegal structure has been up,which at a minimum goes back to October 18, 2006, and more appropriately, should go back to May of 2005. I am also herewith repeating my warning that Ms. Moustakis is contemplating a lawsuit against the City of Salem for the gross dereliction of duty and incompetence of your office regarding this whole sad affair, in which event she will be seeking to recover the significant expenses, including attorneys fees,that she has incurred, which should not have been necessary had you simply done your job. I trust you can appreciate that your continuing inaction is only improving our chances. 0 Jo H. Carr, Enc. Cc Mayor Kimberly Driscoll Elizabeth Rennard, Esq., City Solicitor Philip C. Wysor, Esq. Ms. Linda J. Moustakis—By Hand Matthew Kelleher, 1" floor owner, 4 Bentley Street—By Hand Victoria Regan, 2"d floor owner,4 Bentley Street—By Hand ONNT,{ CITY OF SALEM, MASSACHUSETTS PUBLIC PROPERTY DEPARTMENT n b' 120 WASHINGTON STREET, 3RD FLOOR r SALEM, MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 EXT. 380 FAX: 978-740-9846 KIMBERLEY DRISCOLL MAYOR December 15, 2006 John Carr- Esq 9 North Street Salem, Ma. 01970 RE: 4 Bentley Street Mr. Carr: I am in receipt of your letter of December 8, 2008. Please be informed, a complaint has been filed in Salem District Court, against Mr. Osgood for his failure to remove the structure. Sinc ely, Thomas St. Pierre Building Commissioner Zoning Enforcement Officer cc: Jason Silva, Mayors Office Elizabeth Rennard, City Solicitor Jerry Parasella, Asst. Solicitor Attorney Phillip Wysor oND1 CITY OF SALEM, MASSACHUSETTS y PUBLIC PROPERTY DEPARTMENT 120 WASHINGTON STREET, 3RD FLOOR 3 ` SALEM, MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 EXT. 380 .... FAX: 978-740-9846 KIMBERLEY DRISCOLL MAYOR December 15, 2006 John Carr- Esq 9 North Street Salem, Ma. 01970 RE: 4 Bentley Street Mr. Carr: I am in receipt of your letter of December 8, 2008. Please be informed, a complaint has been filed in Salem District Court, against Mr. Osgood for his failure to remove the structure. Sine e Sine ')M Thomas St. Pierre Building Commissioner Zoning Enforcement Officer cc: Jason Silva, Mayors Office Elizabeth Rennard, City Solicitor Jerry Parasella, Asst. Solicitor Attorney Phillip Wysor