City of Salem Planning Board
Approved Meeting Minutes
Thursday, March 21, 2013
A regular meeting of the Salem Planning Board (Planning Board) was held on Thursday, March 21, 2013 at 7:00 p.m. in Room 313, Third Floor, at 120 Washington Street, Salem, Massachusetts.
Chairman, Mr. Puleo, opened the meeting at 7:00 pm.
Lynn Duncan, Director of Planning & Development, welcomed Dan Sexton, Staff Planner, to the Planning Department, described his previous experience and updated the Board on his current projects. Ms., Duncan also introduced the new Planning Board members, Kirt Rieder and Ben Anderson. Mr. Rieder introduced himself to the Board and described his current work in Landscape Architecture. Mr. Anderson introduced himself to the Board and described his current involvement and work as an Engineer.
Chairman Puleo explained to members of the board and public in attendance that the meeting is being recorded. The placement of a secondary recording device was also acknowledged by Mr. Puleo. The second device was placed on the table by a member of the public, Edmar Goncalves, 157 Pleasant Street, Boston.
Mr. Ready noted, for the record, the audio being recorded by City Staff represents the official recording of the meeting.
Those members present included: Chuck Puleo (Chair), Tim Ready, Helen Sides, Kirt Rieder, Ben Anderson, Mark George, and George McCabe. Planning Board member Randy Clarke was absent from the meeting.
Also present: Daniel Sexton, Staff Planner, and Beth Gerard, Planning Board Recording Clerk.
Chairman Puleo asked whether any members had any comments or corrections for the draft meeting minutes from the Thursday, January 17, 2013 regular meeting. Seeing no changes, Mr. Puleo asked for a motion to approve the Meeting Minutes as written.
Motion: Mr. Ready made a motion to approve the minutes as written, seconded by Mr. George, and a unanimous vote was taken. All the members voted in favor, with a 7-0 vote (Mr. Puleo (Chair), Mr. Ready, Ms. Sides, Mr. McCabe, Mr. George, Mr. Anderson, and Mr. Rieder) in favor and none opposed. Planning Board member Mr. Clarke was absent from the hearing. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Request for a Reconsideration public hearing pursuant to M.G.L. Ch. 40A § 16 at the request of MICHAEL MCARDLE for the property located at 9-11 OCEAN TERRACE (R-1).
Chairman Puleo asked in the applicant was present to speak on the Reconsideration Request.
Attorney Michael McArdle (60 Island St., Suite 508E, Lawrence, MA), representing the owners of the property Matthew Banko and his father, described the location of the property and the types of uses (multi-family) that are present in the area. He described the multi-permits that had been previously granted for the property in question. Atty. McArdle stated that Mr. Banko came before the board in 2010 due to… and he explained the previous decision. In 2012, Mr. Banko engaged the attorney to transfer the property to condominium. They were set to close with two potential buyers, but the buyers’ banks had concerns about the owner occupied requirements of the Special Permits as they relate to an instance of a foreclosure. As such, Atty. McArdle advised Mr. Banko to file a petition requesting modification of the granted Special
Permit, issued in 2010. Specifically, the modification being requested asked that waiver petition present in the Condition language of the Special Permit be waived in case of a mortgage foreclosure. The Board of Appeals denied the request. The application that they have now submitted, which we are asking you to consider as materially different from the earlier petition, does not ask for the waiver of the three-unit owner-occupied requirement. It only asks that in the case of a foreclosure the foreclosing entity can market the unit as an owner-occupied. Which he acknowledged was not clearly explained in initial application. He is asking the Board to give their blessing of the material change in accordance with M.G.L. Ch. 40A § 16.
Chairman Puleo, asked if this would automatically happen in the case of foreclosure? Atty. McArdle stated that they thought that themselves, but based on underwriting guidelines…this appeared not to be the case.
Mark George explained his understanding of the issue… not enforceable. He’s confused as to whether it was a Special Permit or Variance that was not granted?
Atty. McArdle explained that only Special Permits have been granted for the uses present on the property. He understands the distinction between a Special Permit and a Variance, but would note it as a condition.
Mr. George: I don’t think you could sell that property… George asked for further clarification on whether a Special Permit or a Variance runs with the land?
Atty. McArdle: Yes. It’s a condition of the Special Permit that runs with the land.
Chair Puleo stated that it’s recorded, and explained the recent changes to the position of Special Permits and Variances as they have been interpreted by the Land Court. He also explained what the limits of the Planning Board’s abilities were in terms of hearing this reconsideration Request.
Mr. George: It is very interesting to me, because it appear that the condition is almost unenforceable.
Mr. Anderson: Who is responsible for incorporating the legal language of the Special Permit decision and how will this actually take effect?
Atty. McArdle: It becomes part of the title. As a buyer, you become subject to that obligation. It’s also going to be incorporated into the Master Deed for the condominiums and will be incorporated into the covenant.
Mr. Anderson: So that’s a condition or stipulation of the property that the mortgage lender will have to absorb.
Atty. McArdle: He stated that other properties area have also condominiumized their properties, much like Mr. Banko is trying to do, but didn’t have these problems. When Mr. Banko came back to the board in 2010, his Special Permit became burdened with an owner-occupied condition that other properties aren’t subject to.
Chairman Puleo stated that really the only determination that can be made is whether the petition request before them represents a substantial enough change, as compared with the 2012 petition, to consent the Board of Appeals to taking another look before the two year period. Mr. Puleo also clarified to the Planning Board members that to allow this request to move forward, a favorable vote of seven members must be made.
Atty. McArdle stated that he didn’t ask for the right relief.
Chairmen Puleo: It appears to be a complete contradiction.
Mr. McCabe asked what happened at the original meeting and why he didn’t speak up?
Atty. McArdle stated that they tried to explain they that they weren’t trying to do away with the owner-occupied requirement, but it sort of get shut down.
Mr. George: Why didn’t stand up and explain to the Chairman that the request was not about a waiver?
Atty. McArdle: We did, and I understand why it had been interpreted the way it had.
Chairman Puleo: As I understand the situation, the Board of Appeals probably felt such an action may open up the doors for future request and didn’t want to set a precedence. They were actually voting on the petition as it had been advertised. Basically, they couldn’t act differently because of the way it was presented.
Atty. McArdle: Yes, I agree.
Mr. Anderson: What is substantially different?
Chairman Puleo: Wording of the applications and legal advertisement goes through the Planning Office.
Mr. Sexton: Yes, each application is very by the Department of Planning & Community Development and we work with the applicants to develop the legal advertisements.
Mr. Ready: As I understand it, this application doesn’t change the current dynamics of the neighborhood. This would be no different than what currently exists at this moment.
Chairman Puleo: Yes, he’s just asking for the opportunity to go back before the Board of Appeals to have his case reheard.
Atty. McArdle: I believe it would further add to the community, because there would be two more owner-occupied units in the neighborhood as opposed to just one.
Mr. Rieder: May I ask how many parking spaces there are? What are the parking requirements in the R-1 zoning district?
Atty. McArdle: There is parking for four vehicles.
Mr. George said that 1.5 spaces are required per units so the property must have 5 spaces for 3 condos. An examination of that issue is beyond our scope.
Mr. Sexton: Correct.
Mr. George asked for further explanation from the Chair as to what issue we are considering here.
Chairman Puleo: We have to make a determination that there is a special or material change in the petitioner’s application to allow the item to be reheard by the Board of Appeals within two years of the initial decision rendered by the Board of Appeals. Right now with a denial he would have to wait until two years to go back to the ZBA. But if we agree, tonight that they have changed their application enough can go back anytime they want. In my tenure, we have rarely heard petitions of this nature. Mr. Puleo read some language from the statute regarding the procedure to hear this request. Tim made a good point.
Mr. Ready: I am of the opinion that this revised petition does represent substantial change.
Chairman Puleo: If they ruled that he was requesting the removal of the owner-occupied condition, and now he is requesting to retain that condition than I would have to agree with you.
Mr. McCabe: He appears to be saying the same thing, just with different words. I don’t see a big difference, clearly not substantial.
Chairman Puleo: Yes, he runs the risk of getting a second denial. At that point he would have to take up the matter in Land Court or wait two-years to reapply.
Atty. McArdle: I see this as a one-time effort.
Ms. Sides: I’m still a little in the dark, so explain to me how these two petitions are substantially different.
Atty. McArdle: The ZBA advertised a petitioners request was for a waiver of the three-unit owner-occupancy requirement…and that is how the board viewed it. He was surprised by how they interpreted it, but it was a fair understanding as to the way it was presented. He tried to save it once I saw the direction it was going in. It did appear that in the case of a bank coming in it would end; he has a purchaser still interested. It is not the bank’s goal to have this waived. If they go back to the ZBA then they will understand that it is substantially different than what was originally presented.
Mr. George: I’m still confused by difference. What is the material difference in the applications before us?
Mr. Anderson: He’s not removing the owner-occupied requirement, originally requested in the initial application to the BOA. If I understand you correctly, you are retaining that language, and merely requesting clarification of the condition as it applies to instances of foreclosure. You need to make sure the Board of Appeals understands that the waiver or elimination of the conditions is not being requested.
Atty. McArdle: We are not seeking a waiver in terms of a bank foreclosure for the owner-occupied condition requirement. We want clarification for the Board of Appeals that indicates a bank is obligated to adhere to the terms of the condition, and sell the property, if foreclosed, to an owner-occupied buyer.
Mr. George: So if the bank is required to sell to an owner-occupied buyer, as previously permitted, there is no material change.
Chairman Puleo: It was originally permitted to be owner-occupied. The Board of Appeals wasn’t about to remove the Special Permit’s condition because it had been retained during previous modification and Special Permit request for the property. Why didn’t you asked to withdraw?
Atty. McArdle: It didn’t come down that way.
Ms. Sides: Technically, we are comparing interpretation to document, not document to document.
Chairman Puleo: My feeling is that if they are willing to go through these steps to have the petition reheard, then the Board of Appeals would reconsider it. I’m comfortable with the way the facts have been presented. You’ll be facing the same board members…you’ll still need 3 out of 5 votes.
Atty. McArdle: Like one of you said, nothing about what we are asking is changing the character of the neighborhood. If anything, the restriction of an owner-occupied unit is a more restrictive requirement than other surrounding properties.
Chairman Puleo: How long were they condoized?
Atty. McArdle: All the condoized units in the area were developed around the 1980s. Around 2002 two others moved onto condos, but a condition of owner-occupancy was not required of them. Think, from an equity perspective, giving Mr. Banko another opportunity to be reheard.
Mr. Rieder: I still have a question about parking, but as I understand it that is an issue for the Board of Appeals to consider. Is that correct?
Atty. McArdle: The issues of parking were resolved under the prior permitting actions.
Chairman Puleo: Are those parking restrictions identified in the deeds for each unit?
Mr. Ready: Although parking is very important. That is not the issue before us. I think you’ve clearly admitted there was an error on your part and we can get hung up on other issues. Regardless, the question is whether we can find a substantial change to allow the petition to be sent back to the Board of Appeals to take another look. He admires his desire to have them look at it again. It’s easy to get distracted on other issues
Chairman Puleo: In the other hearings did they parking is an issue?
Atty. McArdle: Someone raised the question, but it didn’t materialize as an issue of substance. We showed them a parking plan and explained it to the board members.
Chairman Puleo: So there were no issues or concerns raised by the neighbors.
Atty. McArdle: No one spoke against it.
Chairman Puleo asked if there were members of the public present that wished to comment.
Cathy Essler (44 Lothrop St, Beverly, MA): All we need is clarification so the title insurance company can issue the necessary insurance to buyers that are willing to buy the property. Her understanding is that this is simply a matter of clarification. The owner-occupancy requirement enhances the neighborhood overall. They are vey marketable they have people two wanting to buy them and this is the only thing holding things up.
Chairman Puleo: Are there any other comments? Seeing none, is there a motion to close the public hearing?
Motion: Ms. Sides motioned to close the public hearing, seconded by Mr. Ready, and a unanimous vote was taken. All the members voted in favor, with a 7-0 vote (Mr. Puleo (Chair), Mr. Ready, Ms. Sides, Mr. McCabe, Mr. George, Mr. Anderson, and Mr. Rieder) in favor and none opposed. Planning Board member Mr. Clarke was absent from the hearing. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Chairman Puleo: Is there further questions or discussion? Is there a motion?
Mr. McCabe: This still seems like semantics not substantial change.
Mr. George said he sees no changes, what’s different?
Chairman Puleo: it appears the Board of Appeals heard the request as it was submitted and advertised. The only thing he could see.
Mr. George: But that’s beyond our scope.
Mr. Ready: Not necessarily.
Chairman Puleo: It depends on how you look at it. If they are just asking for clarification and not the removal of a condition, is that substantial?
Mr. George: But isn’t that beyond our scope, nothing appears to be materially different.
Mr. Ready: We aren’t being asked to render a decision on the petition. We are being asked to determine whether the petition has changes from the initial submittal and should be sent back to the Board of Appeals for another shot.
Mr. George: I’m just talking about change.
Mr. Ready: He’s come to us with a new petition and we have the authority to send it back to the Board of Appeals. That is within our scope.
Ms. Sides: Why didn’t you appeal the decision of the Board of Appeals? She thinks everyone is right. She asked Mr. Sexton to clarify.
Mr. Sexton: Based upon conversations with the City Solicitor, the applicant failed to file an appeal within the necessary timeframe. If they wish to reapply within the two year window, they are required to follow the reconsideration process.
Mr. Anderson: Did you ask for the relief from the owner-occupancy requirement in the previous petition?
Atty. McArdle: Yes, as it applied to a foreclosure.
Mr. Anderson: So you are not asking for that relief this time, correct?
Atty. McArdle: Correct.
Mr. Anderson: So they asked for the relief in the denied petition, and are not asking for that now. They want the owner occupancy, which is the difference.
Mr. Sexton: So you requested, in the original petition, the elimination of the owner-occupy requirement.
Atty. McArdle: Yes, as it pertained to a foreclosure.
Mr. Sexton: In the new petition, are you requesting clarification of the owner-occupancy requirement?
Atty. McArdle: We are asking the owner occupancy requirement remain even in foreclosure, so the foreclosure entity is subject to the owner-occupancy requirement as well. Is only allowed to market the unit to an owner that intends to occupy. This was not made clear in the previous ruling on the ZBA.
Mr. Rieder: How can a bank required to do that? A bank can’t occupy the premises. Can you show us what is different between the different applications?
Atty. McArdle: The material change is that the foreclosing bank would not be subject to that restriction. He has now clarified it.
Mr. McCabe: Where?
Mr. Rieder: Where is the operative sentence or content in both applications so we can see it? So we can consider it. It sounds verbal rather than written.
Mr. McCabe: I can’t see the changes…
Atty. McArdle read from the second page of the new petition, which is different from the prior application. Waiver of the requirement… obviously is that it didn’t speak clearly… clarification only came to him after the initial petition was denied and came from the title insurers. The Title Insurance Company indicated they just need to know that the condition doesn’t automatically go into effect if a foreclosure occurs.
Chairman Puleo read the legal advertisement.
Mr. McCabe asked what they are asking now
Atty. McArdle said they are asking to maintain it with that limited exception period.
Mr. McCabe: Can the Board of Appeals add language like that?
Mr. Sexton: They could modify the condition language to reflect the request clarification.
Mr. Ready: But we can’t assume what they will decide. We would make a mistake to assuming what they would do.
Chairman Puleo stating that they will have to act upon the request as it is advertised.
Mr. Rieder: To what degree is it a material change when part of the problem is the way it was worded from the City?
Chairman Puleo: It wasn’t the City, it was the way in which wrote the application out.
Ms. Sides: His misunderstanding.
Mr. Ready: We’re talking about eliminate or maintain. I think that is substantial.
Mr. McCabe: I think I understand it now. They are asking the board to do something different than what they originally adjudicated on.
Chairman Puleo: If it’s substantive enough send it back to them.
Mr. Ready: As we decide on this issue, we are entitled to consider the oral argument before us as well as the documents in making this decision.
Chairman Puleo: So you are making a motion that the applicant has provided enough information for us to determine a material change has been made to send it back to the Board of Appeals.
Motion: Mr. Ready made a motion to approve the Reconsideration request, seconded by Mr. George, and a roll call vote was taken. All the members voted in favor, with a 7-0 vote (Mr. Puleo (Chair), Mr. Ready, Ms. Sides, Mr. McCabe, Mr. George, Mr. Anderson, and Mr. Rieder) in favor and none opposed. Planning Board member Mr. Clarke was absent from the hearing. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Schedule July 4th meeting
Chairman Puleo: So July 4th falls on the Thursday? Usually we try to move the meeting in July, meetings on back-to-back weeks.
Mr. Sexton: We prefer to have a date set because of the large project applications (i.e. Power Plant) that are likely to be submitted soon. When would the Planning Board like to hold the first PB meeting in July?
Mr. McCabe would prefer 18 & 25.
Puleo: Could we ask that the Administration appoint a new member to the Planning Board to fill the vacant position?
Mr. Sexton: Yes. The power plant application has not been submitted yet, but they may be submitting in April.
All members of the Planning Board agreed to schedule the regular meetings for July 18th & 25th.
Traders Way Striping – Home Depot
Chairman Puleo asked for a follow-up on a striping on Traders Way.
Mr. Sexton Has reviewed the decision and determined that stripping was required for the development. However, after the development of the project was completed it became the responsibility of the City because the right-of-way is owned by the City. He’s working with the City’s Engineering Department to coordinate the restriping of the roadway.
Salem Fire
Chairman Puleo mentioned that he had visited Manchester, MA recently and visited the old firehouse by the Police Station, and they watched a meeting and saw the fire engine that was involved in the Salem Fire.
Ms. Sides: Merrit Miller was in charge of making all of that happen.
Chairman Puleo: Maybe they would like to bring it down for the hundred year anniversary.
Election of Officers
Chairman Puleo asked if there were any nominees for the Chair and Vice Chair positions.
Motion: Mr. Ready made a motion that Mr. Puleo remain as Chair, seconded by Ms. Sides and a unanimous vote was taken. All the members voted in favor, with a 7-0 vote (Mr. Puleo (Chair), Mr. Ready, Ms. Sides, Mr. McCabe, Mr. George, Mr. Anderson, and Mr. Rieder) in favor and none opposed. Planning Board member Mr. Clarke was absent from the hearing. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Motion: Mr. Puleo made a motion that Mr. Ready be elected Vice-Chair, seconded by Ms. Sides and a unanimous vote was taken. All the members voted in favor, with a 7-0 vote (Mr. Puleo (Chair), Mr. Ready, Ms. Sides, Mr. McCabe, Mr. George, Mr. Anderson, and Mr. Rieder) in favor and none opposed. Planning Board member Mr. Clarke was absent from the hearing. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Chairmen Puleo asked if there was a motion to adjourn the meeting?
Motion: Ms. Sides made a motion to adjourn the March 21st regular meeting of the Salem Planning Board, seconded by Mr. George, and a unanimous vote was taken. All the members voted in favor, with a 7-0 vote (Mr. Puleo (Chair), Mr. Ready, Ms. Sides, Mr. McCabe, Mr. George, Mr. Anderson, and Mr. Rieder) in favor and none opposed. Planning Board member Mr. Clarke was absent from the hearing. The motion was accepted. The decision to adjourn is hereby incorporated as part of these minutes.
Chairman Puleo adjourned the meeting at 8:16 pm.
Respectfully submitted,
Beth Gerard, Recording Clerk
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