City of Salem Zoning Board of Appeals
Minutes of Meeting
Wednesday, October 18, 2006
A Meeting of the Salem Zoning Board of Appeals was held on Wednesday, October 18, 2006 in the third floor conference room at 120 Washington Street, Salem, Massachusetts at 6:30 p.m.
Those present were: Nina Cohen, Chair; Richard Dionne; Elizabeth Debski; Robin Stein and Steven Pinto. Also present was Building Inspector Tom St. Pierre and Staff Planner Dan Merhalski.
Public Hearing – Request for Special Permit to allow a portion of the lot to be used for earth processing operations – 15 Robinson Road– BPD District – AAA Enterprises
Nina Cohen read a letter from the applicant requesting a continuance to the November 15th ZBA meeting.
Ms. Cohen asked if there were any members of the public that wanted to speak about the request for a continuation. No members of the public wished to speak.
Ms. Cohen asked the Board if they had any comments. None of the Board members had any comments.
A motion was made by Mrs. Cohen, seconded by Richard Dionne and approved (5-0) to continue the Public Hearing to November 15, 2006 at 6:30 pm.
272 Jefferson Avenue
Nina Cohen said that there was a mistake on the agenda regarding the petition for 272 Jefferson Ave. and that the item would not be heard tonight, but will be heard on November 15, 2006.
Approval of Minutes – September 27, 2006 Special Meeting –
Nina Cohen made a motion to accept the minutes from the September 27, 2006 Special Meeting of the ZBA as drafted, seconded by Richard Dionne and approved (5-0).
Amendment to Agenda Items -
Chair Cohen addressed the public and stated that the following petitions for 4 Bentley Street would have to be heard in opposite order from that on the agenda as the second petition relates directly to the first. There being no opposition from the Board, the items were switched on the agenda.
Public Hearing – Request for Administrative Appeal of the Zoning Officer’s determination that 4 Bentley Street is a three-family dwelling – 4 Bentley Street –
R-2 District – Linda Moustakis
Atty. John Carr addressed the board representing Linda Moustakis of 2 Bentley Street and gave a history of the appeal of the determination that the property at 4 Bentley Street was a legal three-family dwelling and the history of their appeals process. He then went on to describe the appeals process and that the case would likely be appealed to the District Court because the Assistant City Solicitor’s opinion is in favor of the Building Inspector’s determination. He therefore asked the Board to move the process along to the courts and to issue a decision on the appeal of his applicant for administrative review and to let the courts decide the case.
Atty. Philip Wyser, representing the owner of 4 Bentley Street, Nicholas Osgood, and addressed the Board in defense of the statute of limitations as outlined in Massachusetts General Law, Chapter 40A, section 7. He gave a description of the history of the site and that his client purchased the building as an existing three-family building with separate kitchen and bedroom facilities for each dwelling and even had three electric meters. He mentioned that his client received a building permit in 1997 for renovations of the third floor apartment. He stated that because the permit was issued to a three family dwelling and because the work was completed as permitted and that more than the required six (6) years for appeals of the decision of the Building Inspector have passed, that the appeal should be denied.
Atty. Carr gave his rebuttal to the statements given by Mr. Wyser and stated that the zoning for that district is R-2 and that if the building was not a legal three-family, the recourse for a buyer is to bring suit against the seller for the sale of the property as a legal three-family.
Robin Stein stated that she has read MGL chapter 40a Section 7 and that she has read both parties submitted court cases as well as other related cases, and said that she believes that this is a clear case of Chapter 40A section 7 being applied and that the statute is clear that the appeals period is limited and has been exceeded.
Nina Cohen opened the discussion up to the public at this time.
There were no members of the public that wanted to speak on this matter.
Nina Cohen made a motion to grant the request of Linda Moustakis for administrative appeal of the zoning enforcement officers determination that 4 Bentley Street is a three-family dwelling in an R-2 District.
The Board voted one (1) in favor (Pinto), four (4) opposed (Cohen, Dionne, Debski, Stein) to grant the appeal. The appeal was denied.
Continued of Public Hearing – Request for Variance and/or Special Permit from side yard setback to allow a third floor deck – 4 Bentley Street – R-2 District – Nicholas Osgood
Atty. Philip Wyser addressed the board and suggested to the board that the issue is really about whether the exterior stairwell should qualify for a variance and submitted that he believes that the stairwell does. The only reason that the exterior staircase exists, is because of the third floor unit. He summarized the history of the project. He stated that hardship exists and has been submitted in his previous memorandums. The third unit needs to have a second means of egress or it cannot be used or sold, and constitutes a hardship. The wording of MGL 40A Section 10 relates to structures also. He read from the statute and stated that the determinations of a variance as described in this section mentioned the words “structure” and “substantial” twice. He stated that they have a very small amount of space for the
variance on the side setback and that this is not a substantial variance of the zoning ordinance. This implies that it is not substantially derogating from the intent of the zoning ordinance.
Robin Stein asked for a clarification of the timeline of the building permit.
Mr. Wyser said that Building Permit was issued in the Spring of 2005 and the structure was constructed over the summer and into the fall. The master deed was recorded in November of 2005. It was after the master deed was recorded that the Building Inspector ordered the structure removed and that the two units that are not owner-occupied were also sold before then.
Atty. John Carr addressed the Board on behalf of Linda Moustakis of 2 Bentley Street and gave a clarification of the timeline. He stated that the Building Permit was issued in May 2005, construction followed almost immediately. Mrs. Moustakis complained immediately to the Building Inspector. She was told that the second means of egress was required for an attached structure. He then read a letter submitted by Mrs. Moustakis to the Building Inspector. On November 22, 2005 the Building Inspector notified the owner of the property that the egress was illegal and the deed was filed on November 30, 2005 for the two residents. This hardship would then be self-created, and cannot be considered a true hardship. He further stated that the requirements of a variance requires all three of the requirements of MGL 40A have to be proven to allow a
variance.
Mr. Pinto asked what the timeframe was from when the petitioner started the deck to when he finished it.
Mr. Carr responded that May to about August, or about three months.
At this time Chair Cohen opened the Public Hearing.
Ward Four Councilor O’Leary addressed the Board to speak in opposition of the Variance.
Nina Cohen asked to clarify the Variance request for the setback and the deck.
Mr. Wysman stated that the request for the deck has been withdrawn and the deck has been dismantled.
Victoria Regan of 4 Bentley Street spoke and said that she was not informed about any appeals regarding this issue and have not received copies from the Building Department as requested. She said that she had no opinion on the request for the variance.
Nick Osgood of 4 Bentley Street addressed the Board and urged them to vote in favor of the petition and that he has invested a lot of time and money into the building and that he had gone to the Building Inspector repeatedly with the Inspectors approval, but that now he is being told that he has to tear down the stairway and that the stairway is consistent with the neighborhood.
At this time Chair Cohen closed the public hearing.
Mrs. Cohen gave a brief history of the petition before the Board. She stated that this is clearly a difficult situation.
Robin Stein agreed that this is a very difficult decision and that there seems to be a hardship, but that the extent of the hardship warrants a variance and suggested that a similar structure that is not as large could potentially be considered.
Steve Pinto commented that it isn’t cheap to build these kinds of things, but that it seems to be too much structure for the area.
A motion was made by Nina Cohen, seconded by Richard Dionne to grant the Variance to allow for the existing stairway to remain subject to seven standard conditions.
The Board voted unanimously (Cohen, Dionne, Stein, Pinto) to deny the variance by a vote of (0-4), with Elizabeth Debski not eligible to vote on this matter due to not being present t the first meeting when the public hearing was opened.
Public Hearing – Request for Variance from the City of Salem Sign Ordinance for pre-existing non-conforming sign – 17 Canal Street – B-4 District – Jiuolito Zepy
Mr. Mario Zepy addressed the Board of behalf of the petitioner and gave a brief summary of the history of the site and the use of the sign. He stated that the sign’s size has not changed, only the wording.
Staff Planner Dan Merhalski addressed the Board and clarified the requirements of the sign ordinance relating to the location of the sign above the roof-line of the structure and the size of the sign in relation to the frontage of the structure in the Entrance Corridor Overlay District.
At this time Chair Cohen opened the Public Hearing.
Ward Three Councilor Jean Pelletier spoke in favor of the petition.
No other members of the public wished to speak on this item.
At this time Chair Cohen closed the public hearing.
A motion was made by Robin Stein and seconded by Richard Dionne to grant the petition for Petition of Jiuolito Zepy, requesting a Variance from the City of Salem Sign Ordinance to allow an alteration to a previously existing non-conforming sign for the property located at 17 Canal street in a B-4 District with conditions.
The motion was approved by a unanimous vote of the Board (5-0).
Public Hearing – Request for Special Permit to allow a pet grooming business in an existing non-conforming structure – 8-10 Broadway – I District – Patricia LeBrun
Patricia LeBrun addressed the Board and explained her petition. She plans to operate a dog grooming business and would limit the hours of operation to 8:30 am-5:00 pm, Tuesday through Saturday, with only a few times of the year being opened longer than that or on other days.
Richard Dionne noted that he is a patron of the store and didn’t want to have any implications of a conflict of interest.
At this time Chair Cohen opened the Public Hearing.
Ward Three Councilor Jean Pelletier addressed the Board and stated that the ward councilor for this property, Matthew Veno, had spoken to him and was in favor of the project, as he is himself.
No other members of the public wished to speak on this item.
At this time Chair Cohen closed the public hearing.
The Board discussed the location of the egress stairway and it was agreed with the petitioner that the stairway would be moved to the driveway side of the house, and that this would be conditioned in the decision.
A motion was made by Beth Debski and seconded by Nina Cohen to grant the petition for a Special Permit to allow a Pet Grooming Business in an existing non-conforming structure for the property located at 8-10 Broadway - I District, with conditions.
The motion was approved by a unanimous vote of the Board (5-0).
Public Hearing – Request for Variance from Side yard setback to enclose a deck – 13 Fairmount Street – R-2 District – Antonio Nogueira
Mr. Nogueira addressed the Board and explained his petition to enclose an existing deck at the site. He submitted a petition in favor of the Variance that was signed by ten (10) of his neighbors.
At this time Chair Cohen opened the Public Hearing.
There were no members of the public who wished to speak at this time.
At this time Chair Cohen closed the public hearing.
A motion was made by Steve Pinto and seconded by Richard Dionne to grant the petition for a variance from the required side yard setback of ten (10) feet to approximately three (3) feet to allow for enclosing of a twelve (12) by sixteen (16) foot deck for the property located at 13 Fairmount Street - R-2 District, with conditions.
The motion was approved by a unanimous vote of the Board (5-0).
Public Hearing – Request for Variance from rear yard setback to reconstruct a two-story addition – 3 Allen Street – R-2 District – Kathryn Harper
Mrs. Harper addressed the Board and presented her petition to reconstruct a two-floor addition that would enclose the bottom portion of the existing balcony. She reviewed the plans with the Board at this time as well.
At this time Chair Cohen opened the Public Hearing.
Patrick Rudolfski of 5 Allen Street spoke in opposition to the proposed project. He stated that the building is too close to his own and that if the balcony was enclosed on the first floor, he would loose a lot of sunlight at his house in that location.
Frank Kulik of 3 Allen Street addressed the Board and stated that he is the significant other of the applicant and that he is in favor of the petition.
At this time Chair Cohen closed the public hearing.
A motion was made by chair Cohen and seconded by Beth Debski to grant the petition a Variance from Rear Yard setback requirements from the required thirty (30) feet to approximately eleven (11) feet to reconstruct a two-story addition for the property located at 3 Allen Street - R-2 District, with conditions.
The motion was approved by a vote of four (4) in favor (Cohen, Dionne, Debski, Stein) and one (1) opposed (Pinto) (4-1).
Public Hearing – Request for Variances from number of stories and rear yard setback to allow construction of a roof deck and bay window – 35 Juniper Street – R-1 District – Daniel Spencer
Mr. Daniel Spencer addressed the board and explained his plan to construct a roof deck and bay window at 35 Juniper Street. He showed the board renderings of the site and plans and stated that he plans to use the site for his father to live in. He had spoken to his neighbors and they had all been in support of the project. He presented a petition signed by three (3) of the neighbors in support of the petition.
At this time Chair Cohen opened the Public Hearing.
Everett Dawkins of 37 Juniper Street addressed the Board and spoke in favor of the project.
Campbell Seamans of 22 Beach Avenue addressed the Board and said that he only has questions about what the future use of the property would be.
Ward One Councilor Lucy Corchado addressed the Board in favor of the petition.
At this time Chair Cohen closed the public hearing.
A motion was made by Richard Dionne and seconded by Robin Stein to grant the petition for Variances from number of stories to allow construction of a roof deck, and from rear yard setback to construct a second story bay window for the property located at 35 Juniper Avenue - R-1 District, with conditions.
The motion was approved by a unanimous vote of the Board (5-0).
Public Hearing – Request for Variances from maximum lot coverage side yard setback, rear yard setback and maximum building height to construct a third building on site – 435 Highland Ave. – B-2 District – Centurion Group
Bob Fantasia addressed the Board and gave a brief presentation on behalf of Centurion Group for the project at 435 Highland Ave. The presentation included elevations and site plans for the proposed additional building located near the Clark Avenue side of the site. Mr. Fantasia presented copies of the site plans to the Board.
Dale Gienapp addressed the board on behalf of the applicant and described the site’s shape as a panhandle lot and displayed a site map showing the limits of the Entrance Corridor Overlay District.
Richard Pasternack, the site manager for Uncle Bob’s Storage, addressed the Board and explained that one reason he was requesting approval to construct this building was to allow him the ability to move the stored items in his existing buildings into the site as he remodeled the existing buildings in phases. He stated that he did not plan to build upwards during his remodel, just improve the existing buildings on the site.
Steve Pinto expressed concern that the proposed building was very close to the residential home adjacent to the site and asked if the roof of the structure would be pitched.
Mr. Gienapp confirmed that the roof would be pitched and that the height of the structure was measured from the middle of the pitched roof, according to the standards for the zoning definition.
Nina Cohen asked what the dimensions of the footprint of the building would be.
Mr. Gienapp said that the structure would be approximately sixty (60) feet wide by one hundred and twenty (120) feet long.
Beth Debski asked if the applicant had talked to the Fire Department at all about the access for the property?
Mr. Fantasia commented that they had met with the Fire Department twice and that as he understood it, they were not too concerned about the fire access by Clark Street, but that the access was maintained on Highland Avenue and that they couldn’t possibly make the turn into the site from Clark Street. He said that they would have more work to do with the Fire Department as these were their thoughts after a preliminary evaluation, but that the access was primarily from Highland Avenue.
Nina Cohen read the purpose statement of the Entrance Corridor Overlay District from the city’s zoning ordinance and stated that the proposed building was within the Entrance Corridor Overlay District.
Dan Merhalski, the Staff Planner, addressed the Board and stated that he had made a mistake in his review of the plans of where the Entrance Corridor Overlay District boundaries were. He stated that he had measured the location of the Overlay District from the center of the northbound traffic lane as it appeared on the plans to be the centerline of the Highland Avenue, when in fact he should have measured from the center divider on Highland Avenue, farther away from the site on the submitted plans. He apologized for the mistaken measurement.
Ms. Cohen stated that the Entrance Corridor District is measured from the property line to the rear of the lot.
Tom St. Pierre, the Building Inspector and Zoning Enforcement Officer read the wording of the zoning ordinance and stated that the boundaries of the Corridor follow the rear lot lines of parcels abutting the street.
At this time Chair Cohen opened the Public Hearing.
Dennis Colbert of 37 Clark Street addressed the Board and stated that he thinks the proposed building would be too dense for the property and too large. He further expressed concern about the drainage running down Clark Street.
Ward Three Councilor Pelletier addressed the Board and stated that he is opposed to this petition and that the size of the building and the requests for multiple variances are not demonstrating the required hardship for granting the variances.
At this time Chair Cohen closed the public hearing.
Robin Stein stated that she feels that the shape of the lot and the topography do appear to be a hardship to the owner.
Beth Debski stated that she has a number of problems with the petition. IT is too dense and too tall. She stated that she is shocked that there are no neighbors here tonight and noted that the house abutting the site will be towered over by the proposed structure.
Nina Cohen commented that she agrees with Ms., Debski and that the size of the building is substantial at sixty (60) by twenty (20) feet.
Steve Pinto noted that he liked the look of the proposed building but that he had a problem with the height and the requested setbacks.
A motion was made by chair Cohen and seconded by Steve Pinto to grant the petition for a requesting a variances from Maximum Lot Coverage from the required twenty-five percent (25%) to forty-eight point eight percent (48.8%); from Side Yard setback from the required ten (10) feet to a proposed five (5) feet; from Rear Yard setback from the required thirty (30) feet to a proposed five (5) feet; and from Maximum Building Height from the required thirty (30) feet to a proposed thirty-three (33) feet to construct a third building on the lot with conditions.
The motion was denied by a vote of one (1) in favor (Stein) and four (4) opposed (Cohen, Pinto, Dionne, Debski).
Public Hearing – Request for a Special Permit to alter a non-conforming structure, a Variance from the rear setback requirements and a determination of a curb cut – 26 Winter Street. – R-2 District – Neil and Martha Chayet.
Neil and Martha Chayet and Larry Beals addressed the Board and presented their plans to demolish the existing garage building and build a new garage fronting on Oliver Street. The plans and elevations for the site were presented and summarized, as well as a brief history of the former owners of the house. The stated that they have spoken to as many neighbors as they can and believe that they have their full support.
At this time Chair Cohen opened the Public Hearing.
Jane Hackett of 6 Oliver Street spoke in favor of the petition.
No other members of the public chose to speak at this time.
At this time Chair Cohen closed the public hearing.
A motion was made by Robin Stein and seconded by Nina Cohen to grant the petition for Variance from the rear setback requirements and a determination of a curb cut for the property located at 26 Winter Street - R-2 District.
The motion was approved by a unanimous vote of the Board (5-0).
Adjournment
There being no further business to come before the Zoning Board of Appeals this evening a motion was made by Elizabeth Debski to adjourn the meeting, seconded by Nina Cohen and approved (5-0).
The meeting was adjourned at 10:22 p.m.
Respectfully submitted:
__________________________
Daniel J. Merhalski, Staff Planner/Clerk
Salem Zoning Board of Appeals
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