102 BOSTON STREET - BUILDING JACKET 102 BOSTON STREET II
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CITY OF SALEM - MASSACHUSETTS
WILLIAM J.LUNDREGAN Legal Department JOHN D.KEENAN
City Solicitor Assistant City Solicitor
81 Washington Street 93 Washington Street 80 Washington Street
Tel:978-741-3888 Salem, Massachusetts 01970 Tel:978-741-4453
Fax:978-741-8110 Fax:978-740-0072
August 11, 1999
Peter Strout
Zoning Enforcement Officer
One Salem Green
Salem, Massachusetts 01970
RE: 102 Boston Street (next to A.O.H.)
Dear Inspector Strout:
Attorney Susan Bernstein has contacted me regarding her client's intended use
of this parcel as a banking facility. Specifically, Attorney Bernstein's question
relates to parking in the back R-2 portion of this "split-lot." As you know, the
front portion of the lot on Boston Street is zoned B-2 (Business Highway) with
the back portion on Beaver Street R-2.1
R-1 District.
Two family residential districts are intended to be those areas in which buildings
are suitable for use by more than one family but are in all other ways similar in
character to R-1 Districts.
Business Highway District.-
Highway
istrict.Highway business districts are intended to be those areas providing sites for
businesses whose trade is derived from automobile traffic requiring ample on-site
parking and direct access from major streets.
Clearly, a bank use fits in the B-2 district. Ample on-site parking would be the
potential issue depending on size of building. Attorney Bernstein has suggested
the possibility of parking extending into the R-2 portion of the lot.
Our Zoning Ordinance does specifically address split-lots.
I I have not seen a plan or survey of the property, but it appears that the larger portion of the lot
is B-2. I have attached a copy of the assessor's map with rough zone line.
Page Two of Three
August 11, 1999
Inspector Strout
RE: 102 Boston Street
Section 7-9. Lot in two districts.
Where a district boundary line divides a lot of record at the time such line is
adopted, the regulations for the less restricted portion of such lot shall extend
not more than thirty (30) feet into the more restricted portion, provided that the
lot has frontage on a street in the less restricted district.
"Zoning ordinances in municipalities around the country have tried various
formulas, and not with outstanding success, to meet the peculiar and often
unanticipated problems arising from the management of split lots — single lots
extending over two or more zoning districts." Tofias v. Butler, 26 Mass. App. Ct.
89, 92 (1988)(Waltham had essentially same provision in its ordinance dealing
with spilt lots as Salem — see Note 11, p93. Allowed use of land beyond thirty
feet to be used in passive use of coverage percentage calculation)(emphasis
added). Tofias notes, further, that, "the use of land in a residential district, in
which all aspects of industry are barred, for access roadways for an adjacent
industrial plant violates the residential requirement." Id. at 94-95 (citing
Harrison v. Bldg. Insp. of Braintree, 350 Mass. 559 (1966)).
"A town has the right to prohibit the use of land for an accessory use (access
and parking) to a use (residential) not permitted in that district." DuPont v.
Town of Dracut, 41 Mass. App. Ct. 293, 294 (1996)(opposite of our situation but
stands for same principle). In DuPont, Dracut, like Salem, did not have a specific
provision in its ordinance prohibiting an accessory use to serve a principal use
not allowed in that district; however, the court stated that that was not
determinative. Id. at 295. "The determining factor is whether the accessory use
conforms to the principle that, ordinarily, a municipality ought to be accorded
the right to carry out the policies underlying its zoning ordinance or bylaw with
respect to the actual uses made of land within its borders."' Id. (citing
Burlington Sand & Gravel v. Harvard, 26 Mass. App. Ct. 436, 439 (1988)).
Thus, use on the parcel in question which has frontage on Boston Street can
extend the less restricted use (B-2, banking) into the more restricted (R-2,
residential) thirty feet. Attorney Bernstein poses the interesting argument that
parking should be allowed beyond the thirty feet as an "accessory use"to the
principal use (bank)." Section 5-2(b)(6). It seems to reason that the accessory
use in an R-2 district refers to an accessory use to a permitted principal use in
that same district (which banking is not in R-2). However, off-street parking is
an accessory use in either the R-2 or B-2 districts. See Sections 5-2(b)(6) and
(e)(5).2 Thus, it would seem consistent with the underlying principle of the
Salem Zoning Ordinance that parking be allowed in that portion of the lot in R-2
Z Parking for residential purposes in R-2 and business purposes in B-2.
Page Three of Three
August 11, 1999
Inspector Strout
RE: 102 Boston Street
beyond the thirty feet line. It should not, however, be more extensive than
would be consistent with the permitted use in the R-2.
Lastly, and perhaps more importantly, there is the issue of access to the lot
which has not been addressed. I believe access to the lot has been solely by
Boston Street for some time now. It is my recollection that the former rear exit
to Beaver Street was blocked off some time ago. I think the case law cited
above would clearly stand for the principle that access from residential to the
commercial portion of the lot would be inappropriate, and in my opinion
inconsistent with the two-family residential district on Beaver Street.3 Again, this
should be addressed in a formal plan by the developer.
Do not hesitate to contact me with any questions pertaining to same.
Very truf l ors
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J N D. KEENAN,
ISTANT CITY SOLICITOR
idk/kjm.zoning
ENC.
CC. Susan Bernstein, Esq.
William Lundregan, City Solicitor
Leonard O'Leary, Ward Four Councilor
Sally Hayes, Ward Six Councilor
3 I am not aware of any nonconforming ("grandfathered") use argument put forth.
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