City of Salem Zoning Board of Appeals
Minutes of Meeting
Wednesday, March 19, 2008
A meeting of the Salem Zoning Board of Appeals (“Salem ZBA”) was held on Wednesday, March 19, 2008 in the third floor conference room at 120 Washington Street, Salem, Massachusetts at 6:30 p.m.
Those present were: Robin Stein (chairperson), Richard Dionne, Elizabeth Debski, Rebecca Curran, Annie Harris, and Bonnie Belair (alternate). Also present were Building Commissioner Thomas St. Pierre and Amy Lash of the Planning Department.
Business Items
Petition of CLIFFORD AGELOFF requesting a variance from the maximum height of accessory structures to allow for a 173’ tall temporary wind monitoring tower on the property of the Fairweather Apartments located at 40R HIGHLAND AVENUE [R3].
Robin Stein announced that the Board received a letter from the Salem Fairweather Energy Project Team requesting that their petition be continued to April 16, 2008 so that they have an opportunity to meet with neighbors. Rebecca Curran made a motion to continue the petition for 40R Highland Avenue, seconded by Robin Stein and approved (5-0).
Attorney Joseph Correnti requesting an additional six (6) month extension for variances granted October 18, 2006 for the property located at 28 GOODHUE STREET.
Attorney Correnti explained that 28 Goodhue Street is not yet fully financed. He is before the Board to request a six month extension for the variances granted in October of 2006. Annie Harris made a motion to grant the extension, seconded by Rick Dionne and approved (5-0).
Approval of Minutes
A motion was made by Beth Debski to continue the approval of the March 12, 2008 minutes to April 16, 2008 to provide the Board with time to review them, seconded by Rebecca Curran and approved (5-0).
Public Hearing
Petition of AAA ENTERPRISES & SERVICES on behalf of MOUNTAIN REALTY TRUST requesting a Special Permit to add a nonconforming use to allow for the receipt and processing of stone, soil, and loam at 15 ROBINSON ROAD [BPD].
Attorney Joseph Balliro Jr. presented the petition on behalf of Mountain Realty Trust and AAA Enterprises. He explained that they are seeking permission to use equipment for occasional projects where jobs are done offside and they would like to bring materials back. He submitted an additional site plan showing the location of the equipment as well as a study done by Acentech about the sound levels that would come from the rock crusher. He said that they are in a Business Park Development area, which is principally commercial and industrial with no residential abutters. He said that there should be no increase in dust or noise.
Bonnie Belair asked if the rock will be brought to the site to be crushed. Attorney Balliro said yes, occasionally, they would receive rock and soil. Bonnie Belair asked will any material be for sale? Attorney Balliro asked his client who said, some will be for sale, but most will be for their own use. Bonnie Belair asked if this machine was already on site. Attorny Balliro replied yes, it has been for sometime.
Rebecca Curran asked if this would be a secondary use to what is already occurring on the property. Attorney Balliro referred to section 7-6 and said yes, it would be a secondary use. Robin Stein said she was not sure Sec. 7-6 is a perfect fit because it includes removal and quarrying. Tom St. Pierre explained that quarrying, is when you take material from the site, the word processing might be more appropriate in this case.
Annie Harris asked if the machine is already there has it been used. Attorney Balliro said it has been used. Building Commissioner Tom St. Pierre explained he had issued a cease and desist order which prohibits further use of the machine.
Beth Debski said you mentioned, DEP compliance, do you have a copy of the consent order? What is the issue with DEP? Attorney Balliro said they are using the soil and rock on site to comply with DEP regulations. It would save a great deal of money; otherwise his client would have to buy the material. Beth asked if traffic would increase. Attorney Balliro said there would be some increase in truck traffic, with some people coming to buy the material but not much more that what is there now. Robin Stein asked what the frequency of truck trips was when it was operating. Mr. Hutchinson said four or five trucks per day.
Annie Harris asked if the zoning prohibits selling. Tom St. Pierre said it is a business property and there is no limit on selling.
Robin Stein asked after the DEP order is complied with, do you intend to keep operating this machine? Attorney Balliro said he believed there was a two year time limit on a special permit. Robin Stein said the two year time limit is only that you must use it within two years, or you loose it.
Attorney Patrick DeIulis (6 Seemore Street, Salem) spoke on behalf of the Mongiellos. He said there actually are residential abutters and there are five (5) residents on the Mongiello property. He said they are not in opposition, but have questions. They would have preferred to have had these questions answered prior to the meeting. First, he indicated the Mongiellos are in favor of the DEP consent order which they need to comply with at 15 Robinson Road. He said they want to know what the plan is for the stockpile of material brought on site. He said there is an existing unpaved driveway of variable width. He said the activity would bring increased truck traffic outside the windows of the dwellings and they would like to know what will be done to lessen the negative impact. He said the
Mongiellos know there is a junkyard there, but they are not sure about how this increased use will affect the sale and marketability of their property.
Attorney Brian Le Clair (12 Fox Run Lane, Marblehead) representing the Delisios said his clients live on the right side of Robinson Road. He said they operate a miniature golf course and ice cream stand. He said they had arranged a meeting with the applicant, but that the applicant canceled the meeting. He said they would like more time to look at the report that was presented to the Board. He said that Robinson Road is narrow and close to the golf course.
Robin Stein said she is pleased that the relationship between the neighbors has improved. Robin said she thinks there may be a need for roadway improvements and wants to know about impacts on the air. She said she thinks placing a time limit on the operation of the equipment would be appropriate.
Attorney Balliro said the stockpile of material will be used to comply with the consent order and fixing the road. He said he doesn’t know how to respond to the question about marketability because in this case he believed the abutters moved to an existing condition and the salvage yard has been operating for fifty (50) years. He said there has been civil action between the abutters and his client. He said they are talking about a machine everybody knows is there and they are complying with the City laws.
Bonnie Belair said the neighbors have a right to know how this will affect their property and how it might be remediated. Robin Stein said though there may be a settlement agreement between the parties, she encourages that they meet on this particular matter before returning to the Board. She said she doesn’t feel they have all the necessary information tonight, so it would be premature to vote. She has concerns about the road and whether it can sustain additional truck traffic. Robin Stein and Beth Debski both said they would like to see the DEP Consent Order. Rebecca Curran asked that they outline their hours of operation. Annie Harris asked for a copy of the Assessor’s Map. Amy Lash said she would send the Board copies of the Assessor’s Map in their next packet.
Beth Debski said the Business Park Development district was created to have clean uses and an extension of this use wouldn’t be keeping with that.
Rebecca Curran asked with this nonconforming grandfathered use, is a second use allowed? Tom St. Pierre said that in his opinion it was, otherwise it wouldn’t be here.
Ward 3 Councilor Jean Pelletier said this has been going on for two (2) years. The landscaping business across the City is doing similar things to what Mr. Hutchinson wants to do. Mr. Hutchinson was moved to this location by the City and cooperated. He said it is a business that has done many odd jobs. He’s under DEP orders and has to get the clean up job done.
Robin Stein suggested entertaining a motion to continue the hearing to April 16, 2008.
Beth Debski made a motion to continue the hearing until April 16th, seconded by Robin Stein and approved (6-0).
Attorney Balliro said it was a contentious issue and he couldn’t promise that they would meet.
Petition of JOSHUA LEVESQUE requesting a Variance from side yard setback and a Special Permit to modify a nonconforming structure to construct an 8’ x 11’ addition at 268 JEFFERSON AVENUE [B-1].
Joshua Levesque presented the petition along with his father, Bob Levesque. They purchased a home on Jefferson Avenue in need of repair. They are working on bringing the house back to its 1880 appearance.
Robin Stein reviewed the plans and asked Tom St. Pierre if the stairs were considered to be part of the structure. Tom said not if they are open, only if they are covered.
The petitioner presented the Board with photos of the work that had been done to the house to date. Annie Harris asked whether the siding was wood clapboard. The petitioner said yes.
Ward 3 Councilor Jean Pellitier said he believes this is a fine project. He said he has been asked several times over the years what the status of the property was and he appreciates that the Levesques are fixing a blighted property.
Tom St. Pierre noted that he has been familiar with the property for the past decade, and it has been a problem. He said he is familiar with Mr. Levesque’s work restoring historic properties and that he is doing a great job on this one.
Rebecca Curran made a motion to approve the request for a variance subject to eight (8) standard conditions, seconded by Rick Dionne and approved (5-0).
Petition of MARK & DANIELLE CSOGI requesting Variances from maximum lot coverage, minimum width of side yard, and minimum depth of rear yard to install an above group pool 21’ in diameter and an attached 10’ x 21’ deck at 3 ORCHARD TERRACE [R-1].
The petitioners explained that they would like to install and above ground pool. They presented the Boards with plans showing there was an 18’ pool in the yard in the same location before, as well as a deck. They would like to put in a slightly larger pool (21’). The submitted a petition in support of their request signed by seven (17) residents of Orchard Terrace and Manning Street.
Annie Harris clarified that they would be putting in a larger pool, moving the shed, and adding a patio at ground level.
Tom St. Pierre noted that the applicants had been very thorough in their application.
Robin Stein said that she felt this was a minimal dimensional request and that it doesn’t take away from the intent of the Zoning Ordinance. Robin Stein read the introduction of the petition which said as neighbors we have no objection to the addition of the pool and deck.
Beth Debski asked if they are required to put up fencing. Tom St. Pierre said that City Ordinances require a fenced pool or fenced yard with a four-foot high fence. Robin asked whether the applicants planned to put a fence around the pool. They said yes. Tom St. Pierre noted that the City is actually more restrictive than the State.
Beth Debski made a motion to approve the request with five (5) standard conditions, seconded by Rick Dionne and approved (5-0).
Petition of STEPHEN MORRIS requesting a Special Permit for a change in nonconforming use to allow the photography studio on the first floor to be converted to five (5) professional offices at 315-317 ESSEX STREET [R-2].
Attorney George Atkins (59 Federal Street, Salem) presented the petition on behalf of Stephen Morris. He said they are requesting special permit to change the nonconforming use of the property to allow for an office use with five office spaces with common conference, lounge, and bathroom facilities. He said they held a meeting at the site and invited abutters. Two (2) residential abutters came. The space they are seeking a special permit for had been the Gainsboro Studio, a photography studio. At the time they submitted the application, to the Board of Appeals, the rest of the first floor was occupied by a hair salon. This space is now vacant. Attorney Atkins said there has been several interesting uses in the building over the years and there has consistently been commercial on the first floor with
residential above.
Attorney Atkins said that the new use is not substantially more detrimental to the neighborhood. He said that Gainsboro Studio had elements of retail traffic and made the site busier than the proposed use will be. He said the space is 2,700 and they are proposing offices. He thinks it is unlikely to have many employees in this small space. He says the use is benign and doesn’t impact the surrounding neighborhood.
Attorney Atkins said the parking lot has sufficient on site spaces to meet the requirements of one space for each professional and two for each employee. He said that the opposition’s counsel will suggest they need to apply for a parking variance. He said parking is a factor to take into consideration, but 30 spaces are not needed. He said it is a question of fairness and equity and this first floor space had been used commercially for half of a century.
Peter Copelas is a Salem resident and representative from the First Church. He requests that the Board deny the request because of the congestion in the area.
Robin Stein summarized a letter the Board had received from the First Church in opposition of the request for a special permit.
Bill Hemming of the Governing Body of the First Church said that the Church is active 4 days a week for preschool as well as on Sundays. He said the expansion of the Courthouse will make parking in the area more difficult. He said that offices have clients and deliveries.
Councilor At-Large Steven Pinto said he thinks the use fits with what is already there. He believes the parking is adequate, and thinks granting the special permit would benefit the City.
David Williams (342 Essex Street) disagrees about Gainsboro. He said you wouldn’t know there was a business there. He doesn’t want to see an empty building. He said if the Board chooses to move ahead they should place limits on the special permit. He is disappointed the proposal doesn’t include the hair studio space, which could have a future impact. He mentioned that the court project will also have affects. He thinks the individuals in the offices should be parking in individual spaces and there should be space for clients.
Attorney Bill Quinn asked the Board to not grant the special permit. He supplied a memo to the Board summarizing his arguments. He said that it is the petitioner who has the burden of illustrating their proposal meeting the requirements for issuing a special permit. He said there could be eleven (11) new people brought to the building from the proposal. He questioned how many cars the thirteen (13) people upstairs might have. He said that his clients want to know who occupied the parking in the back and how many people were employed by Gainsboro Studios. He said that it was a passive and quiet operation. He asked what changes this property will have. He said this building is two (2) buildings away from the intersection of Essex Street and Summer Street. He said today when he was driving
through this intersection a double-parked car caused traffic to back up. He said there is basically no parking on the street in this area. He said five (5) professionals will associated staff would be too many people coming and going, especially if it was a law office. He said the 10 (ten) parking spaces in the back are not adequate. He said there could be twenty-four (24) people in the building because they don’t know what will happen with the hair salon. He said FedEx trucks are always coming into law offices with documents and this area is too dense for that activity. He feels if the building is altered it triggers parking requirements for the proposed use and they are not asking for the right relief in an area with virtually no parking on the street. He feels the proposed usually will be substantially more detrimental that what is currently there.
Ward 3 Councilor Jean Pelletier said though it is not his ward, he would like to mention that the church is an exempt and much larger use and therefore he is in favor.
Attorney Atkins said from the comments he has heard, it sounds like a Dunkin Donuts is being proposed for the space. He said the floor plan doesn’t lend itself to having that many people in there. There are ten (10) spaces for its uses in this Building –nobody else in the area has parking, and the SRO tenants have no vehicles. Gainsboro had 2-4 employees. In response to the comments about the courthouse, Attorney Atkins said that his client Mr. Morris should not take the brunt of the other projects. Attorney Atkins said he looked into the Church permitting and knows though they are exempt, though the ZBA can require reasonable parking.
Attorney Atkins said that five (5) offices could be filled by 3 lawyers and 2 paralegals, or accountants and secretaries. He said there would not be as many people as Attorney Quinn is saying. He said they would have to come back to the ZBA to change the nonconforming use of the space, which had been occupied by the hair salon. He said they were the only property meeting parking requirements. Attorney Atkins said Gainsboro had exclusive use during the day, and allowed residents to park there overnight.
Attorney Quinn said that the ZBA does not owe the land owner a living and their failure to grant a special permit does not constitute a taking.
Robin Stein said if you give away all your parking spaces and you come back for the hair salon you would have a problem. She said she would be in favor of granting the special permit if there was a set number of people that would be in the space, she does not want to just approve five (5) professional offices. She knows how busy five (5) professionals can be.
Annie Harris asked if the applicant would be interested in combining the space that was the hair salon with the space for which he was seeking a special permit. Bonnie Belair said she would be comfortable only if they limited the number of people. Robin Stein said she would prefer if the uses of medical or dental offices were prohibited. Rebecca Curran said she would like a condition that the residents may park overnight. Rick Dionne said that he feels the fact they have parking is unusual. Also he suggested they think about combing the hair salon.
Attorney Atkins said he thought limiting the number of individuals to seven (7) would be okay. He said he believes you could require parking to be purchased in other locations like the garage, which has been a common practice of the Planning Board. Bonnie Belair said she would be in opposition to more than six (6) occupants. Bill Quinn asked that they limit the number to five (5) professionals.
Annie Harris asked if anything on the building would be changing. Attorney Atkins said nothing dimensional would change.
Annie Harris made a motion to grant the special permit subject to seven (7) standard conditions and three (3) special conditions: the number of occupants shall be limited to six (6), though may be increased to eight (8) if additional offsite parking is provided for each additional occupant; no medical, dental or similar uses shall be allowed; eight (8) of the ten (10) parking spaces shall be dedicated to this space (two (2) for visitors and six (6) for employees) and residents shall be allowed to park in these spaces overnight. The motion was seconded by Beth Debski and approved (5-0).
Petition of ORILLE L’HEUREUX requesting a Special Permit for a change in nonconforming use to allow the ten (10) unit rooming house to be converted to a three (3) unit residence and a variance from parking regulations to allow two (2) tandem parking spaces for each residence at 1 HAMILTON STREET [R-2].
Attorney George Atkins (59 Federal Street, Salem) said what they are requesting would allow for a less intense use of the structure. They are requesting a variance because the tandem spaces don’t comply with dimensional requirements. They are trying to supply off street parking. They think two (2) spacer per unit is appropriate. The matter was before the ZBA two (2) years ago and they are beyond the two (2) year limitation and can return.
Rick Dionne asked what year the structure was building. Attorney Atkins said 1840.
Attorney Atkins said his client was making an economic decision for his retirement and would like to help the people who currently live in the rooming house move to other locations.
David Williams (342 Essex Street) is in favor of the proposal and likes the parking arrangement.
Richard Jendrysik (3 Hamilton) submitted a petition which he said was signed by all direct abutters and residents of Hamilton Street. He thinks going from ten (10) to three (3) units is a net improvement.
Pamela Jendrysik said she is a direct the abutter and she along with other neighbors are in support. She said the cars that currently park outside 1 Hamilton don’t bother to get resident stickers. She said only 4.5 parking spaces are required and she doesn’t want to whole area to be parking, she suggested plantings and dressing up the parking area.
George Osic (250 Essex Street) said he was in favor.
Nina Cohen (22 Chestnut Street) spoke in opposition to the request and spoke of the other options the property owner might choose for the property. She said it could be sold as a single family or as two condos, or it could stay as is. She said there are currently 102 Condominiums on the market in Salem and these units could sit on the market.
Steven Gallagher spoke in favor of the proposal
William Goldberg (8 Botts Court) said he is in favor and thinks it would be a plus for the neighborhood.
Former Mayor of Salem, Stanley Usovicz Jr. (2 Botts Court) spoke in favor of the petition. He said prior to the Salem Inn lots of rooming houses existing. He said that stately houses, such as this are expensive to maintain. He said it’s necessary to make sure that those that are displaced have a place to live.
David Decker (6-8 Hamilton Street) said that cars are currently coming to the house from other places.
Ward 3 Councilor Jean Pelletier said he feels this could enhance the neighborhood and he would like to see the developer work with the neighborhood. He would like to see six (6) parking spaces required per the plans submitted. He feels an attractive building like this close to downtown is unlikely to be empty.
Annie Harris said though she is not an abutter, she lives in the neighborhood and feels this would enhance the property. She feels that in this case it would be okay to stack the parking.
Mr. L’Heureux said he would assist those that currently live there find another place to go.
Annie Harris made a motion to approve the request with nine (9) standard conditions, seconded by Rick Dionne and approved (5-0).
Petition of PATRICK CHASSE requesting variances from minimum lot size and minimum lot width to construct a single family home at 21 BARCELONA AVENUE [R-1].
Robin Stein reviewed the memo to the Board of Appeals summarizing the order of the Land Court, which determined that 21 Barcelona Avenue is not a nonconforming buildable lot. The Land Court instructed the Board of Appeals to order the Building Inspector to revoke the permit. Attorney Lovely filed a stay and provided the Board with a copy, there is not a date for the hearing. Robin Stein said she felt there was not something keeping the Board of Appeals from taking up a petition. Attorney Lovely said it could be years before they would have a resolution from the Land Court.
Attorney Stephen Lovely said the proposed lot is similar to other lots in the neighbor. He said Mrs. Francullo, the owner of the property has been in the hospital. Patrick Chasse has had a purchase and sale agreement with the Francullos for four (4) years. When they began they believed they had a valid building permit and they still believe it’s a valid building permit.
Mr. L’Esperance has been awaiting the decision of the Land Court to see whether the lot is nonconforming and buildable. Attorney Lovely said even though they were going to settle with him, there is nothing from keeping others from coming forward.
Attorney Lovely mentioned that a similar lot on Ravenna had been granted variances.
Victor L’Esperance said he is in support of the petition. He serves on the Board of Directors of a group with teaches kids about the environment, and had been opposed. Blanche Francullo had asked him to put a side hard feelings.
Patricia Pitreau (Barcelona Avenue) spoke in support of the petition saying she had reached an agreement with the parties. She said she was only representing herself, not on behalf of the other neighbors.
Jayne Diamont (42 Ravenna Avenue) purchased a home seven (7) years ago and is concerned that she will loose money in her investment.
Annie Harris and Rebecca Curran mentioned that there was no statement of hardship. Attorney Lovely said the reasons for hardship include the sewer easement across the middle of the property at 19 Barcelona, the ledge fill terrain, and the topography.
Beth Debski said the sewer easement would not have an affect because it is outside of the lot line show on the plan for 21 Barcelona. Beth asked if they would be willing to consider the condition that the easement land should be incorporated in the lot at 21 Barcelona.
The Board decided to break from 21 Barcelona to allow the parties to discuss the proposed condition.
The Board took up the petition of Groom Realty, 21 Barcelona was resumed immediately after.
21 Barcelona Avenue Continued:
Attorney Lovely said they would be willing to accept the condition of incorporating the easement land. They are willing to work with the neighbors.
Annie Harris asked where the parking would be. Patrick Chasse said the parking will be provided in the driveway and garage.
Robin Stein said she would be more comfortable with the larger lot size. She thinks there is a hardship; she understands the construction was started in good faith.
Annie Harris recommended that the agreement is attached to the decision. Attorney Lovely said that would be fine.
Beth Debski made a motion to approve the request for variances with seven standard conditions, the condition that a new plan incorporating the easement land be submitted, that reasonable efforts be made to limit run off to adjacent property, and the Agreement for Judgment with Patricia Pitreau is to be attached. The motion was seconded by Rick Dionne and approved (5-0).
Petition of GROOM REALTY requesting to modify a previous variance decision to allow the height of the existing 41’ wind turbine to be increased by 6’ at 96 SWAMPSCOTT ROAD [BPD]. The previous variance granted relief from the maximum height of accessory structures.
Susan St. Pierre of Vine Associates said that Groom installed a residential scale demonstration wind turbine, though they were not getting the electricity they were hoping to get. They are coming back to the Board to request a height increase of six (6) feet.
Rebecca Curran asked if the blades would be longer. Susan said no, it would just be higher and it would be a little bit higher than the tree.
Bonnie Belair asked how they make it six feet higher. Susan said it requires replacing the pole.
Councilor At-Large Steven Pinto said he was on the ZBA when the turbine was approved and since it’s been up says it’s not noticeable.
Ward 3 Councilor Jean Pelletier asked when the turbine operates. The petitioner replied that the turbine operates whenever the wind blows.
Rebecca Curran made a motion to approve the request and include the conditions of the original decision, seconded by Beth Debski and approved (5-0).
The meeting was adjourned at 10:45 pm.
Respectfully submitted,
Amy Lash, Staff Planner
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