City of Salem Zoning Board of Appeals
Minutes of Meeting
Wednesday, January 17, 2007
A Meeting of the Salem Zoning Board of Appeals was held on Wednesday, January 17, 2007 in the third floor conference room at 120 Washington Street, Salem, Massachusetts at 6:30 p.m.
Those present were: Nina Cohen, Annie Harris, Elizabeth Debski, Richard Dionne, Robin Stein and Steve Pinto. Also present was Lynn Duncan, Director of the Department of Planning and Community Development; Building Inspector Tom St. Pierre and Staff Planner Dan Merhalski.
Discussion of Chapter 40B (Comprehensive Permit Law) – Jerry Parisella
Assistant City Solicitor Jerry Parisella provided the Board members with handouts and gave a brief presentation on the Comprehensive Permit Law, also known as Chapter 40B. Mr. Parisella stated that the City of Salem had never had a 40B project presented to it before. He further stated that while an application had not been filed yet, it was his understanding that an application for 40B would be coming to the ZBA soon for the St. Joseph’s project and he wanted to give the ZBA a general overview of the 40B process to have some understanding before the application comes to the Board at a public hearing. He highlighted that the 40B process allows a ZBA to permit a project and circumvent the local zoning ordinance if the Board should find that it is in the city’s best interests to approve the permit. The proposed
project must have a t least 25% of the units to be affordable units. It is a streamlining process for permitting that makes the ZBA the only Board to vote and review the application, but it will be commented on from other departments and Boards. A Public hearing must be held within 30 days of the application and a written decision must be filed within 40 days of the close of the public hearing. The state must first find that the project is “consistent with local needs” and the ZBA must determine that the need for affordable housing is such that the ZBA feels it is appropriate to circumvent the zoning of the city to allow the project to continue.
Mr. Pinto asked for a clarification of the ten percent (10%) requirement in Salem.
Mr. Parisella stated that Salem is above the ten percent (10%) threshold and that Salem’s 40B applications will be different because the city is above that requirement and the ZBA will have a lot more discretion than in cities that are below that threshold. The ZBA must determine that the site is consistent with local needs.
Mr. Parisella went on to state that there where four criteria to consider when reviewing an application: regional needs for affordable housing, public safety, improved site design and preservation of open space. Conditions may be imposed as the Board feels is appropriate, but they cannot be so onerous that make the project uneconomic to proceed with the project. The public hearing will be conducted as any other Chapter 40A public hearing; the public can speak and owners can speak on the project.
Mr. Parisella also stated that the state of Massachusetts will review all projects prior to their coming the Salem ZBA. The Department of Housing and Community Development will conduct their own review and they will notify the Mayor so that the Mayor has a chance to comment before the state will issue its site approval letter.
Mr. Pinto asked if the project to come to the ZBA had already received that approval.
Mr. Parisella stated that it was his understanding that that process was currently underway and that it was a prerequisite to the ZBA approving the project.
Mr. Pinto asked when the ZBA could expect to see that letter.
Mr. Parisella stated that the developer did not need to have the letter by the time of the public hearing, but that the ZBA would have to have it before they made a decision on the project.
Ms. Cohen asked who would send the letter?
Mr. Parisella stated that the Department of Housing and Community Development (DHCD) would send the letter. He further stated that the ZBA can approve a 40B application even if the city has met its ten percent (10%) obligation. He cited a case in Amherst that demonstrated a need for affordable housing through a waiting list even though they had met their ten percent (10%) threshold.
Ms. Stein asked about the requirement for public safety.
Mr. Parisella stated that the board could, for example, find that there was too much traffic generated by a project and that this would generate a safety concern for the city. He further stated that one thing the Board couldn’t look at that was decided in a recent court case was the impact the project would have on property values surrounding it.
Ms. Cohen asked if community policing was a safety issue?
Mr. Parisella stated that it could be, but that the Board couldn’t impose more onerous conditions than they could under a 40A application.
Ms. Duncan addressed the Board and stated that the criteria would have to be applied to each individual site. In the case of an undeveloped site, open space might be a valid consideration, but the project the board will possibly be looking at has been fully developed and that while open space was valid in the Amherst case, it may not be in this project. The issue of protecting safety also had a presumption that the Planning Board looks at safety too, but in the same way that a new subdivision couldn’t be turned down by the Planning Board for a need for more policing, a 40B application couldn’t be rejected for the same reason. Traffic issues would be an example or safety concerns or a lack of infrastructure for emergency vehicles or hydrants.
Ms. Cohen stated that open space did not just apply to undeveloped lots because you could require a pocket park to offset a higher amount of development on the site.
Ms. Duncan stated that the proposed project was not new to the city or the ZBA as it had come back to the Board after receiving a variance. The validity test for the ZBA would be very similar to what the Planning Board had reviewed for the Planned Unit Development (PUD) permit, which was weighing the benefits to the city with a more flexible type of zoning. The ZBA will be able to review the comments of the other Boards and departments.
Ms. Cohen stated that she didn’t want to get into a specific discussion about the St. Joseph’s project because she wanted to have a healthy understanding of the process as a whole, but she did have a question as it related generally to the discussion and that was relating to an aspect of the St. Joseph’s site, that being the proposed Community Center. Under what branch would that fit into the four criteria for demonstrating community need? Is there something else that the Board could review to allow them to take that part of the project into account?
Mr. Parisella stated that one of the issues was whether a 40B project can include a component other than affordable housing and other aspects to it. The state would review this as well but there is a project in Ipswich in which a YMCA has a commercial day care center and a bank as components to it and Superior Court has said that is fine. So he believes that the Board would want to look at if there is a community benefit to having a community life center, not just a benefit to the affordable housing.
Ms. Cohen asked if some of the other departments of the city have not commented on a project before the public hearing, if the board can continue the public hearing?
Mr. Parisella stated that they could continue the public hearing for as reasonable a time as they feel is appropriate, but if it is “unreasonably delayed” it could be constructively approved.
Ms. Duncan stated that the process would only be a long process if the ZBA feels that there are issue that haven’t been vetted. She stated that her view is that the affordable housing would be viewed under the Comprehensive Permit, not the Community Life Center, except for the impact the center would have on the city. For example in Ipswich, they didn’t look at the bank, but at the impact of the entire project, but the Board would have to look at parking, etc.
Mr. Parisella stated that in the Ipswich case the board looked at the community benefit of the daycare center and not at the commercial bank. He further stated that there is a limit on the profit margin for a 40B project as well and he believed it was twenty percent (20%).
Ms. Cohen asked if there was a date set for the public hearing yet?
Dan Merhalski stated that they weren’t certain yet but it would probably be February 12th, 2007 at 6:30 pm and that we were waiting for the applicant to verify that they will be able to attend.
Elizabeth Debski asked if the project were to be denied if there was an appeal process since Salem already meets its 40B threshold?
Mr. Parisella stated that he believed the appeal would go to the Superior Court instead of the Housing Appeals Committee because the threshold requirement in Salem is met.
Ms. Cohen asked if there were any other questions? There were none. Ms. Cohen asked if the application materials could be sent to the ZBA members as early in February as possible. She then asked to see the purchase and sales agreement for the Community Life Center.
Ms. Duncan stated that the city is not that far along on the project and that material is not available at this time.
Ms. Cohen stated that she believe it to be important.
Ms. Duncan stated that that was an issue for the City Council and the Mayor, but not relevant to the ZBA’s review under 40B.
Ms. Cohen stated that as the ZBA is asked to consider the Community Life Center as a part of this project, that document should be apart of their packets, or a memorandum of understanding for what kind of ballpark figures where being discussed.
Ms, Cohen then thanked Mr. Parisella and Ms. Duncan for their time.
Approval of Minutes
Ms. Cohen asked if there were any amendments to the draft meeting minutes from the December 20, 2006 minutes. Ms. Cohen made a motion to accept the minutes as presented, seconded by Ms., Stein, and approved (5-0).
Continuation of Public Hearing – Request for Special Permit to allow existing non-conforming offices to be converted to six (6) residential units- 48 Bridge Street – R-2 District - Lewis Legon.
Nina Cohen read a letter from the applicant requesting to withdraw their application.
A motion was made by Robin Stein, seconded by Steve Pinto and approved (5-0) to withdraw the petition without prejudice.
Public Hearing – Request for Variance from maximum height of fences and boundary walls – 28 Marlborough Road – R-1 District – Peter and Cheryl Bagarella.
Nina Cohen read a letter from the applicant requesting a continuation of the Public Hearing until February 21, 2007.
A motion was made by Nina Cohen, seconded by Elizabeth Debski and approved (5-0) to continue the Public Hearing to February 21, 2007 at 6:30 pm.
Public Hearing – Request for Special Permit from side to change the use of the existing non-conforming structure and Variances from the maximum density and parking requirements - 17-19 Salem Street – R-3 District – Michael Viola.
Ms. Cohen asked if the petitioner was present.
Mr. Merhalski stated that he had tried to contact the petitioner last week and again this morning and had not been able to reach them. He said that he had received to notifications or correspondence from the petitioner, but suggested that the ZBA may want to continue the public hearing to March of 2007.
Ms. Debski asked if the petition had signed a waiver of the time for the Board to make a decision?
Mr. Merhalski stated that they had not turned one in and that at the last meeting they were granted a continuation conditioned upon the signing of such a waiver. He further stated that the application was dated October 30, 2006 and that the applicant would receive constructive approval if the Board did not take action on the application this evening.
Tom St. Pierre suggested that the Board withdraw the petition without prejudice and allow the applicant to reapply if they wished to do so.
A motion was made by Nina Cohen, seconded by Robin Stein and approved (5-0) to withdraw the petition without prejudice.
At this time Robin Stein left the meeting.
Public Hearing – Request for a Special Permit to construct an addition to a non-conforming structure – 27-29 Albion Street – R-1 District – Richard Ness
Mr. Ness gave the Board a brief presentation to the Board and described the project. He has an existing structure with two-bedroom units and wishes to receive a Special Permit to construct an addition to an existing non-conforming structure to create three-bedroom units. He further stated that the structure was occupied by four (4) tenants: the owner, the owners two family members in one (1) unit each and a tenant in the 4th unit. He stated that there were no objections from the neighbors, but did not submit a petition. He is requesting Special Permits for both non-conforming use and a non-conforming structure.
At this time Ms. Cohen opened the public hearing.
Dick Avigian of 33 Albion Street stated that he had no objections to the project.
Ms. Cohen asked if there were any other members of the public who wanted to speak on this issue. There being none, she closed the public hearing.
A motion was made by Ms. Cohen, seconded by Ms. Debski to approve the Special Permits for non-conforming use and non-conforming structure, with conditions, and approved 5-0.
Public Hearing – Request for Variances from lot size and lot width to allow a structure to be relocated to the lot – 14 Butler Street – R-2 District – Joseph Reither
Atty. John Keilty spoke on behalf of his client, Joseph Reither.
Mr. Keilty gave a brief presentation to the Board regarding the petition and plans of the site. He stated that a purchase and sales agreement had expired for the proposed relocation of an historic residential structure to the site but that his client would like to receive the same relief for new construction of a structure of the same dimensions as that originally proposed. The dimensions would be approximately twenty-four (24) feet by thirty-eight (38) feet and would include on-site parking behind the structure. The relief requested is from frontage and lot area.
At this time Ms. Cohen opened the public hearing.
John Jordan of 9 Butler Street spoke against the petition citing that parking was a problem on the street. He also asked if the structure would be owner occupied or a rental?
Charlie Pelletier of 12 Pyburn Avenue spoke in opposition stating that he had been told years ago that a house could never have been built on the lot when he thought about buying the parcel and that there was no parking for the site. He also stated that he owns the site abutting this parcel.
Karen Flaherty of 16 Butler Street spoke in opposition to the petition stating that she also was told that the lot was unbuildable and that she had wanted to purchase it earlier as well.
James Hannon of 18 Butler Street spoke in opposition to the petition citing that parking for the site was terrible.
Ward Three Councilor Jean Pelletier spoke against the petition citing that there was no adequate parking along Butler Street. He also added that he is of no relation to Charlie Pelletier of 12 Pyburn Avenue.
John Keilty stated that his client is willing to add more off-street parking spaces to the two (2) proposed for the site.
Karen Flaherty of 16 Butler Street spoke again about the location of the ledge on the site and asked if there would be blasting and would it burst her pipes and crack her residence’s foundation?
John Keilty stated that there may be blasting but they could hammer out the ledge if necessary instead.
Ms. Cohen asked if there were any other questions from the audience. There were none. At this time Ms. Cohen closed the public hearing.
Ms. Cohen stated that blasting is mandated by state law and suggested that the residents take photographs of their foundations prior to any construction to ensure that any damage done as a result of construction would be able to be remediated by the contractors.
Ms. Harris stated that she didn’t think that the petition should go forward as the neighbors seemed to object to the petition and she didn’t hear a good demonstration to prove hardship.
Ms., Debski stated that the issues of objections raised were dealing with parking, which the petitioner was willing to add more parking off street and to blasting which the petitioner agreed to jack hammer instead.
Ms. Cohen asked Mr. Keilty to describe the hardship to the Board.
Mr. Keilty stated that the hardship was found in the shape and topography of the lot and that it was not self-inflicted as the lots were all carved out around the term of the century.
Ms. Harris stated that the petitioner did not own the land and that the petitioner did not have a hardship unless he purchased the land, which would be a self-imposed hardship.
Mr. Keilty stated that the hardship is with the land no matter who owns the lot and that the hardship is also pertaining to the lot size and frontage.
Mt. St. Pierre stated that a similar parcel was approved by the Board but that if there is any doubt that the Board should ask the city solicitor for an opinion and continue the public hearing for thirty days until the next ZBA meeting.
Ms. Cohen asked the petitioner if they would be willing to continue their petition until February 21st, 2007.
Mr. Keilty agreed.
Ms. Cohen made a motion to continue the public hearing until February 21, 2007 at 6:30 pm, seconded by Elizabeth Debski and approved (4-1), Mr. Pinto opposed.
Public Hearing – Request for Variances from side and rear setbacks – 134 Canal Street – I District – National Grid Wireless
Atty. Joseph Correnti spoke of behalf of the petitioner, National Grid Wireless.
Mr. Correnti gave a brief presentation to the Board regarding the project to construct an equipment shelter on the southwest portion of the lot to house optical regeneration equipment for National Grid Wireless.
The project manager, Tom Wahl, described the operations of the equipment and the design of the structure. Photographs were presented for the Board’s inspection.
At this time Ms. Cohen opened the public hearing.
Ward Three Councilor Jean Pelletier addressed the Board and asked why notification was not sent to the direct abutters to the south of the project site. He asked to see the abutters list.
Mr. Merhalski gave Mr. Pelletier a copy of the abutters list.
Mr. Pelletier stated that the addresses in question were not on the abutters list and asked why.
Mr. Merhalski stated that the abutters list is generated by the City Assessors office and that notices are sent out to all abutters and abutters to abutters within three hundred (300) feet of the project location.
Tom St. Pierre suggested that the project site may be incorrect on the application as the project site indicated on the assessor’s map was a parcel of land abutting the subject of the petition to the north.
Mr. Merhalski left the room at this time and returned with a copy of the assessor’s map showing that the parcel in question was actually numbered 142 Canal Street and that the abutters notices had not gone out to the direct abutters as the parcel to the south of that selected in the Assessor’s list was more than three hundred (300) feet long, and therefore, would be outside the distance of the report.
It was determined that the application had the incorrect parcel number on it as the two parcels in question were both owned by the petitioner, but were not combined and resulted in notices not being sent to the proper abutters.
It was decided that the public hearing could not go forward at this time.
Ms. Cohen asked if the applicant could come back on the night of thetentative special meeting on February 12, 2007.
Mr. Correnti said that he could.
A motion was made by Nina Cohen, seconded by Richard Dionne and approved (5-0) to continue the item to the special meeting on Tuesday February 12, 2007 at 6:30pm.
Adjournment
There being no further business before the Board, a motion to adjourn was made by Nina Cohen, seconded by Beth Debski and approved 5-0.
The meeting was adjourned at 9:15 p.m.
Respectfully submitted:
__________________________
Daniel J. Merhalski, Staff Planner/Clerk
Salem Zoning Board of Appeals
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