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13 BURKE STREET - BUILDING JACKET 3 ��� 1l� S�re�-� geN111T� �,�tnlweoo� ELIZABETH M. RENNARD CITY OF SALEM JERALD A. PARISELLA City Solicitor KIMBERLEY L. DRISCOLL, MAYOR Assistant City Solicitor 93 Washington Street One School Street Salem, MA 01970 Beverly, MA 01915 Tel: 978.619.5631 LEGAL DEPARTMENT Tel:978.921.1990 Fax: 978.744.1279 93 WASHINGTON STREET Fax:978.921.4553 Email: brennard@salem.com SALEM, MASSACHUSETTS 01970 Email:jap@alexandedemino.com TO: Thomas St. Pierre Q FROM: John P. Bosse, Esq. and Jerald A. Parisella, Esq RE: Lot Split by Municipal Boundary DATE: November 8, 2007 FACTS You have requested an opinion from the solicitor's office regarding what zoning relief is available to the owner of real property which straddles the line dividing Salem and Peabody. This opinion is based on these facts as presented to the solicitor's office. The property is located at 13 Burke Street in Salem but also has a portion of it located in Peabody. The property in Salem is in the R-I zoning district, which allows only single- family residences, while the portion of the Peabody lot is zoned for two-family use. The owner wishes to convert the home to a two-family dwelling and is seeking zoning relief in Salem. ISSUE Whether the Salem ZBA may grant the real property owner a variance from single-family use to two-family use for the portion of the property located in Salem. ANALYSIS Permitted Use The City of Salem's Zoning Ordinance provides that detached single-family dwellings are a permitted use within single-family residential districts. Salem Zoning Ordinance Art. V, Sec. 5-2. Conversely, Sec. 5-2 of the Salem Zoning Ordinance does not provide for two-family use within a single-family residential district. Additionally, Art. V, Sec. 5-3 of the Salem Zoning Ordinance does not provide for two-family use within a single-family residential district by special permit. "Unlike prior nonconforming uses, which originated as legal uses of property, uses within a variance only become legal with the permission of the permit granting authority." Mendoza v. Licensing Board of Fall River, 444 Mass. 188, 207 (2005). "Variances allowing nonconforming uses should be unusual because they are individual waiver of local legislation." Id. at 207. In a footnote, Mendoza states: "Although all variances are unusual forms of relief from zoning requirements, use variances should be particularly extraordinary because they inherently undermine the local zoning ordinance's division of uses. See M. Bobrowski, Massachusetts Land Use and Planning Law § 8.04, at 261 (2d ed. 2002) ("Use variances...are greatly disfavored"). General Laws c. 40A, § 10, bars zoning variances for nonconforming uses unless specifically authorized by the local zoning ordinance." Id. at 208, n. 23. In the case at hand, the Salem Zoning Ordinance does not authorize two-family use within a single-family residential district. If the Salem ZBA ("ZBA") were to grant the petition for a use variance, the ZBA would be waiving the permitted uses under a single-family residential district. As a result, the ZBA should deny the property owner's request for a use variance. Split Municipal Lot In Beale v. Planning Bd. of Rockland,the plaintiff("Beale") sought approval from the planning board of Rockland for a definitive subdivision plan that would extend an existing road in the town of Rockland into the town of Hingham to provide access for a proposed retail shopping center in Hingham. 423 Mass. 690, 691 (1996). The land in Rockland for the access road was located within an "Industrial Park I-2" district, and the Rockland zoning by-law did not allow retail sales generally in the I-2 district. Id. at 691- 692. The planning board of Rockland in denying Beale's application for approval of the subdivision, concluded that"as to the land in Rockland, retail shopping center use would violate the use requirements of the applicable zoning district under the Rockland zoning by-law." Id. at 691. Beale appealed to the Land Court, where a judge upheld the decision of the planning board. Id. at 691. On direct appellate review from the judgment of the Land Court,the Supreme Judicial Court stated that"The judge correctly interpreted the Rockland zoning by-law as prohibiting retail uses in the I-2 zone, based upon the absence of such uses from the list of permitted uses in the zone and the express allowance of such uses in Rockland's business zoning districts." Id. at 693. In the present case, the Salem Zoning Ordinance prohibits two-family use within a single-family residence zone, based upon the absence of such use from the list of permitted uses in the zone and the express allowance of such use in Salem's two-family zoning district. Salem Zoning Ordinance Section 5-2. 2 A "Use of land in one zoning district for an access road to another zoning district is prohibited where the road would provide access to uses that would themselves be barred if they have been located in the first zoning district." Beale, 423 Mass. at 694 (1996). While the case at hand does not involve the use of an access road, it does concern the use of land located within a single-family district in Salem for proposed two-family use. The land in Salem should not be allowed for two-family use, despite the fact that the portion of the land in Peabody allows for such use. For the ZBA to allow for two-family use within a single-family zoning district would run contrary to the holding that"a municipality ought to be accorded the right to carry out the policies underlying its zoning ordinance or by-law with respect to the actual uses made of land within its borders." Id. at 694, quoting Burlington Sand & Gravel, Inc. v. Harvard, 26 Mass.App.Ct. 436, 439 (1988). As the Court held in Beale, the potential indirect impact of a board's decision upon the use of the land does not prevent a municipality from enforcing its own zoning by-law with respect to the land within its boundaries. "Where a parcel of land lies in two municipalities, each may apply its zoning laws to the portion that lies within its boundaries." Beale, 423 Mass. at 698 (1996). Similar to the Supreme Judicial Court's reasoning in Beale, the impact of the ZBA's decision upon the use of the land in Peabody does not prevent the ZBA from enforcing its own zoning ordinance with respect to the land in Salem. See also Town of Brookline v. Co-Ray Realty Co., 326 Mass. 206 (1950). In this case the developer proposed to build an apartment (permitted in Boston) and use the Brookline land for access (apartment not permitted in the Brookline district). The project was denied because the use was not permitted in Brookline. Substantial Hardship Restricting the property owner to single-family use does not prevent all use of the property in question resulting in a substantial hardship. By contrast, the property owner can continue to use the property for single-family use, which is permissible under the Salem Zoning Ordinance. Cf. Beale, 423 Mass. at 699-700 (1996). CONCLUSION The Salem ZBA should deny the property owner's petition for a use variance in order to convert a single-family dwelling into a two-family dwelling for the following reasons: 1. Two-family use is not permitted within a single-family residential district, and allowing such nonconforming use would be a waiver of local legislation. Mendoza v. Licensing Board of Fall River, 444 Mass. 188, 207 (2005). 3 2. The Salem ZBA has the right to enforce its own zoning ordinance with respect to the land in Salem. Beale v. Planning Bd. of Rockland, 423 Mass. 690, 698 (1996). 3. The property owner will not incur a substantial hardship with respect to the use of his land, as he may continue to use such land for a single-family dwelling. Cf. Beale v. Planning Bd. of Rockland, 423 Mass. 699-700 (1996). 4