City of Salem Massachusetts
Public Meeting Minutes
Board or Committee: Zoning Board of Appeals
Date and Time: Wednesday, November 19, 2008, at 6:30 p.m.
Meeting Location: Third Floor, Room 313, 120 Washington Street
Members Present: Chair Robin Stein, Rebecca Curran, Beth Debski, Richard Dionne, Annie Harris,
Bonnie Belair (Alternate), Jimmy Tsitsinos (Alternate)
Members Absent:
Others Present: Staff Planner Danielle McKnight
Building Commissioner Tom St. Pierre
Chair Stein calls the meeting to order.
1. Approval of Minutes: October 15, 2008 Meeting
The members review the minutes; no amendments are suggested.
Dionne: Motion to approve the minutes, seconded by Stein. Passes 5-0.
2. Petition of JOHN GRANESE, TRUSTEE OF GRANESE BROS. REALTY TRUST, seeking a variance from minimum width of side yard for the property at 59 JEFFERSON AVENUE (Industrial District).
George Atkins represents Granese Bros. Realty Trust. Atkins explains that the plan requires the building’s encroachment on the side yard setback required in the Industrial Zone in order to take advantage of the most usable portion of the land. He states the use will not be changing. Parking required is one space per 1,000 square feet; with approval of this petition, six spaces would be required plus one space for each two employees.
Curran asks if the addition must be 45 feet wide in order to function with the type of equipment the company will be using there. Atkins responds that that is correct.
Stein opens this issue for public comment. No comments are made. Stein closes the public portion.
Dionne notes that the right-hand side of the property is also industrial and says he sees no problems with the plan.
Blair says she thinks the petition is reasonable considering the scheme of the area.
Stein says she thinks the dimensional relief requested would be minimal and consistent with guidelines in the bylaw.
A motion is made by Belair and seconded by Dionne to approve the petition of John Granese of Granese Bros. Realty Trust seeking a variance from minimum width side yard for the property located at 59 Jefferson Avenue in Salem in the Industrial District, subject to the following terms and conditions:
- Petitioner shall comply with all city and state statutes, ordinances, codes and regulations.
- All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner.
- All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to.
- Petitioner shall obtain a building permit prior to beginning any construction.
- A certificate of inspection is to be obtained.
- Petitioner is to obtain approval from any City board or Commission having jurisdiction including, but not limited to, the Planning Board.
St. Pierre adds that the petitioner has been storing things in the front yard; the property is located in the Entrance Corridor and this is not allowed. St. Pierre asks if the Board wants to condition this. Stein responds that they need to just comply by not storing things there and that a separate condition isn’t necessary. Atkins does not believe 59 Jefferson Avenue is located in the Entrance Corridor. Stein says that the first condition would cover this, and that the Board would also check on whether this property was in the Entrance Corridor. St. Pierre checks and confirms it is not.
Stein asks McKnight to do a role call vote:
Stein: In favor
Curran: In favor
Debski: In favor
Dionne: In favor
Belair: In favor
The petition passes 5-0.
3. Petition of UNITED FINANCIAL CONSULTANTS, LLC, seeking variances for lot area; lot width; front, side and rear years setbacks; allowance of two dwelling structures on the lot; and allowance of five parking spaces; and a special permit to reconstruct a nonconforming structure for the property located at 272 JEFFERSON AVENUE (B1 zoning district).
George Atkins represents petitioner United Financial Consultants, LLC (UFC). Atkins indicates there is also a group present represented by Attorney Anthony Keck, who would be addressing the Board when opened to public portion. Atkins states there is a difficult history to the project. UFC made a loan to the former developer of the condominium and the loan was not repaid. UFC foreclosed and became the owner of the rights in unit one, in a two-structure condominium. The petitioner has included in the application packet the original plans that are at the Registry. That original plan provides for two structures: an existing structure at the front of the lot, and a new structure at the rear. Atkins says his team tried to assess situation in an effort to resolve the issue for all
parties involved. The team consists of Jonathon Gold, who is here representing UFC as the General Counsel for the organization. Paul Durand of Winter Street Architects, who has been working on the design, is also present.
Atkins states that the petitioner is a foreclosing party, and that this matter has previously been before the ZBA. A decision was rendered at that time which contained 18 conditions. Atkins says many of them were not complied with by the prior owner/developer. The prior owner also demolished, in part, the building to the rear, to the extent the building inspector found it a hazard and ordered the remainder taken down. The owner/developer then applied for a building permit to rebuild that building, and at the consultation with the ZBA, that request was denied. Since that time, says Atkins, the owners of four units in the front building have had difficulty selling and refinancing their units because of the obvious questions related to the lack of a fifth unit.
Atkins asks the Board to look at the original plan, consisting of a site plan and floor plans for unit one and the four-story structure in front. He calls attention to the three parking spaces depicted on the site plan opposite the building. Atkins states that those three spaces were not really going to work – they were not “real” spaces. Atkins says they want to balance the needs to provide parking on site, create a unit that could be marketable so client could recover some costs, and provide a fifth unit to satisfy the mortgagees of the units in the front building. Looking at the actual footprint, Atkins says it was clear they could not fit five parking spaces. The new plan reduces the size of the unit from a two-bedroom to a one-bedroom unit with the entire living space
on the second floor and a parking space underneath. Atkins says that in the old proposal, the length from Jefferson Avenue going west was 31 feet long at the interior, and with the deck, 24 feet across the back line of the property. The new proposal is 25 feet running from Jefferson Avenue going West, 6 feet less than what was originally planned. It also goes to the south along the property line 32 feet, which is 8 feet more than the original plan. The total area of the new unit is 855 square feet, compared to the old plan, which totaled (without its basement plan) 837 feet. The original footprint was 640 square feet. The new plan shows that the shadow of the second floor over the site is 800 square feet; however, the actual footprint is 55. Atkins suggests that the advantage to this plan is increased onsite parking, which he says adds value to all the units, not just the one belonging to his client.
Atkins says he has spoken with some of the unit owners; some like the new plan, others don’t. He also acknowledges concerns that his client has not paid condominium association dues, and that is something that he is willing to resolve. Atkins notes that he thinks a key concern of the neighbors is where this unit is located. They could have done it exactly according to the original plans, but that would have meant the loss of one, perhaps two or three parking spaces on the site.
Atkins also acknowledges that there had been mistrust of the original developer, which perhaps is why 18 conditions were imposed. He indicates that he would be agreeable to conditions imposed by the ZBA in order to go forward. He says he is before ZBA now because this is a non-conforming lot; it does not have the correct area, width, and there are setbacks to existing building less than required. This is a B-1 zone, not a residential zone, but multifamily housing is an allowed use. The variances he is asking for are 1) two principle use buildings in the same lot; 2) five parking spaces as opposed to the required eight; and 3) encroachments into the setbacks to the side and rear yards.
Stein asks if Board members have any questions. Belair asks what Atkins anticipates the unit would sell for. Atkins responds he’s unsure, but it would be a small amount; his client would certainly not recoup all his losses. Belair speculates the losses must already have been significant and asks if they have considered offering the unit as a rental, given the market. Atkins says no, they wish to offer it for sale.
Stein asks if St. Pierre wishes to elaborate on any of the property’s history before moving on. St. Pierre says no. Stein states this is complicated from a zoning perspective and she wants to understand the status of the property. St. Pierre says the original developer tore down everything but two walls; St. Pierre stopped him. The developer then came back to the ZBA, and got a special permit to construct, when the conditions were imposed. That dragged on to the point that the two walls were exposed to the elements for so long it had to be torn down; the condo association actually tore it down, and that’s where we are today.
Stein says that once the building was torn down it would have lost its grandfathered status. St. Pierre concurs; the building did lose its status, which is why he came to the board originally. Stein asks if the whole lot is affected. St. Pierre says the issue relates to the structure.
Curran asks if there is a special permit now allowing the five units, and also if that special permit has expired? St. Pierre says no – there were historically five units. The four units had been redeveloped and sold at the point when the fifth one was tackled.
Stein asks if the parking spaces were assigned by way of the master deed. Atkins replies no, that it was left to the trustees to determine how the spaces were used.
Stein opens the public comment portion of the meeting.
Councillor Jean Pelletier: Since these units are part of a condominium association, if one new developer comes in to make a change like this, doesn’t he need permission from the condo association as a whole, because they own the property together? Is it for the board to decide whether this one party can bring the project forward to the ZBA without including the other condo association owners, if those owners don’t already accept the proposal?
Stein says she thinks their master deed probably controls who has authority to act on behalf of whom and what.
Attorney Anthony Keck states that he is representing three unit owners (5, 4 and 2). He raises the issue of acquiring the common area without seeking the permission of other unit owners to re-site the structure there. Stein asks what approval is needed to use a common area; Keck states that 100% approval from other owners is required if a common area is to be taken from everyone else. They also must have permission from all lenders. He says this vacant space is a problem for the other owners and lenders, but that they are not seeking to punish the original developer; they simply want to be sure the best design is chosen, and are also concerned that the petition does not take into account the rights of the other owners, who should have input. He states that simply reducing the footprint of the
structure is not necessarily ideal, and also expresses concern about a post holding up a unit. He says the way the unit is sitting in the corner of a property now allows better vehicular access and says that currently, residents are able to park along the wall. The four owners had been able to get their cars in; turning the building to the side now takes away some of the current parking and snow removal area. He acknowledges that by not having a fifth unit, no lender wants to touch the property, and that this has been going on for three years without resolution.
Keck passes around photos residents have taken of the parking area from units above to illustrate the problems.
Keck says the unit owners haven’t said they don’t want anything at all to be built there – they are just concerned that the ground area currently used for parking is being taken away from the other residents, without their input, all to help UFC recoup their losses. He also feels the plan would not even be cost effective. He requests the ZBA deny petition.
Stein says before moving on, she would like to hear if the other unit owners have any suggestions for how they would like to see this problem resolved, other than rebuilding on the old footprint. If it’s not rebuilt, there will be a continuing problem. Keck says that is probably the best solution. Stein says Keck does not have to answer the question, but she is curious as to whether there has been any discussion of the other owners buying out the unit – economically, this could be the best solution. Keck says yes, they had that discussion with their prior counsel.
Harris asks what would be involved in a buyout; Keck responds that all owners and their lenders would have to agree to that. In this case, unit one “is” the bank, since that unit is owned outright. The other owners would need their lenders to agree since this would be eliminating ownership of this unit, and that would be a significant change. Harris notes that there would be greater costs to the other owners, including higher shares of condo fees. Harris also said says with three owners already opposed to that solution, this wouldn’t be feasible.
Stein asks Keck if he doesn’t agree that they would have to have all owners on board with allowing the taking of a common space. Keck says he is unsure of that, and reminds the Board that this is a separated unit – its own building. The question of on the ground usage of the common area is the question, not the building itself. Stein says the site plan shows that the open space appears to be all common, so the Board may be deciding something tonight that the petitioner can’t do anything with. Keck says yes, to some degree, this is a first step, and that in order to go to a lender and get an agreement among unit owners, they need permission to do it. Keck noted he thought getting the other unit owners to agree to end that one unit would be a good idea; the only person who
would be left with nothing in this case would be the owner of unit one, and he currently has nothing. Keck says that if the unit were rebuilt on the original footprint with parking under the building, there would be less opposition from the other unit owners. He suggests putting parking where a basement would have gone – since the foundation needed to be done anyway, why not build a ramp there for a parking garage?
Belair asks if Keck’s clients are opposed to buying out unit one; Keck responds they are not, but it would depend on the price offered. Keck notes there has been discussion of this before, but a price could not be agreed on.
Atkins says the photo shown by Keck’s clients does not do justice to the plan submitted, which was based on a survey, which Keck feels shows the space on the lot accurately, and that the survey plan is a more legitimate depiction of the space. Atkins says that the loss of common space shown by their plan is justified by the addition on their plan of “legitimate” parking. If they built on the same footprint, says Keck, they would be eliminating parking spaces, and one has to presume that that parking is of value to each unit owner and their lenders, and this parking would be lost if the building were rebuilt on its original footprint.
Stein notes that the parking spaces on the original condo plan are not on the same places as the spaces shown in the pictures. She suggests that if the unit owners are happy to have the building rebuilt where it was and don’t care if it makes parking tight, then why not just rebuild on the original footprint? Atkins says he supposes they could do that, but his client had made a judgment that it would be of higher value to all the owners, their lenders, and the abutters to have more parking on the site.
Paul Durand, the architect who worked on the design, says they had assumed it would be unprofessional to propose a site with too many non-compliant parking spaces, and that they had anticipated the ZBA and Keck’s clients would place a higher priority on the value of parking than they are. They had only planned the site this way in an attempt to be more compliant with the parking requirements, but they would happily rebuild the building as it was.
Stein says she appreciates that, if those who live there don’t mind, and notes that two pre-1965 buildings would not need parking at all. Atkins says they need a variance for putting in fewer parking than zoning allows. Curran asks why, since they had one for this approved plan. Stein asks why the variance is required at all, since the site existed legally pre-zoning; Atkins says any alteration to the site would require a variance for parking. Parking becomes up for grabs every time the site comes before zoning. Stein asks if this means the parking just for Atkins’ structure, or the whole site? Atkins says the entire site. Atkins says the zoning question is irrelevant if people don’t want onsite parking, and if the ZBA didn’t require a variance; however, he’d be more comfortable from a lender’s perspective having the variance.
Dionne says that because the original pre-zoning structure is gone, the board does have to look at the fact that the proposed building is right on the property line, not far from the adjoining property. In terms of fire safety, what standards must be adhered to? St. Pierre responds that the buildings would have to comply with today’s (Seventh Edition) codes if the buildings were to be placed that close together. Dionne asks how many feet the new building would be located from the abutting property; St. Pierre says it looks like a one-foot setback. He is unsure exactly how far the building is located from the abutting structures; however, he notes that the apparent close proximity would mean very restrictive standards for glazing and other requirements. It is also noted that the post
holding up the proposed new unit over the parking space would have to be very durable in case a car struck it.
Pelletier says he doesn’t expect the ZBA to vote on this issue tonight, but asks the board to consider the hardship this situation has caused for the other unit owners in the past two years.
Kevin McGrath of 3 Arthur Street comments that the site has been discussed before and nothing came of it – none of the conditions imposed were met. As an abutter, he asks what rights he has, and notes the original footprint of the building is on his property line. He does not want anything there; he’s used to the site as it is.
Raylene McGrath, also of 3 Arthur Street, says the proposed structure is larger than originally planned and is too big, in her opinion.
Laura Trellopoulos of unit 4 notes that the lenders have lost money; if someone hits the proposed post and the building collapses, it will cost more. She says the developer has not listened to any of the other owners’ concerns, that parking is a problem currently and will not work the way the site is proposed.
Bob Levesque of 268 Jefferson Avenue says he and his son, Joshua Levesque, bought the property next door and have been renovating it. As abutters, they are disappointed with the proposal and are concerned it will affect their ability to sell the house they are renovating, particularly considering the market.
Michael Gederre of 272 Jefferson Avenue (unit 5), states his opposition to the project and notes that when he bought his unit, the plans for unit 1 were to renovate it, not add or rebuild. He says this situation came about as a result of that lender’s poor decision and the previous owner’s failure to pay his mortgage, and the other owners shouldn’t have to bail out the lender/owner. He says they have told the petitioner these plans were not acceptable. He says the parking doesn’t work and is worse in winter.
Shannon Kauler of 274 Jefferson Avenue comments on the inadequacy of space on the property for snow removal without putting snow onto her property. She says there is no room for additional parking on the site, notes her fence was once hit, and states her opposition to the project.
Sylvia Updegrave of 272 Jefferson Avenue (unit 2) states her opposition.
Colin Martin of 272 Jefferson Avenue (unit 3) says this is the first time they have heard everyone’s point of view and notes the other owners have been through three lawyers and two pending foreclosures. He supports the plan to reconstruct the unit and says they can compromise on parking. He has been unable to sell his unit and feels the best solution is to rebuild as proposed.
Laura Trellopoulous says she would prefer to sell but did not want to do so at the expense of all the other owners.
Atkins says he understands the other unit owners’ concerns, but the common area to be taken away is minimal. However, he wants to see if he and Keck could establish some middle ground and listen to the owners and abutters. Atkins requests to continue the matter.
Stein says there are two solutions: one, to talk about a buyout, or two, if the ZBA gives the petitioner permission to rebuild. However, all the unit owners still must agree before either can be done. Stein says there is no point in the ZBA giving permission for something they cannot do without the condo association’s permission anyway. Atkins says he will discuss a compromise with the other owners and come back to the ZBA. He also notes he’d been unaware that the other unit owners and their lenders would accept less parking, and that they could come up with another design based on this.
Gederre says he prefers a buyout.
Harris asks if, when the original building was there, could residents fit four parking spaces. Gederre replies yes, they could get four, but not five.
Belair encourages the petitioner to allow the other owners to buy him out and says the plan is not economic. She says she would never approve what is before them tonight – it’s too large and lacks character. She urges him to act quickly, since the owners have been waiting so long for resolution.
Stein makes a motion to continue the hearing to January 21, 2009 to give the parties and their lawyers time to discuss a solution. Curran seconds the motion, and all vote in favor.
Stein makes a motion to close the meeting. Dionne seconds the motion. The meeting is adjourned at 8:55 p.m.
Respectfully submitted,
Danielle McKnight
Staff Planner
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