City of Salem Zoning Board of Appeals
Minutes of Meeting
Wednesday, February 18, 2009
A meeting of the Salem Zoning Board of Appeals (“Salem ZBA”) was held on Wednesday, February 18, 2009 in the third floor conference room at 120 Washington Street, Salem, Massachusetts at 6:30 p.m.
Those present were: Richard Dionne (chaired meeting), Rebecca Curran, Bonnie Belair (alternate), Annie Harris, and Jimmy Tsitsinos (alternate). Those absent were Robin Stein (Chair) and Beth Debski. Also present were Thomas St. Pierre (Building Commissioner) and Danielle McKnight (Staff Planner).
Dionne opens the meeting at 6:38 PM.
Approval of Minutes
Dionne moves to approve December’s minutes; Harris seconds. Motion passes 3-0 (Dionne, Harris, Tsitsinos).
Curran moves to approve the January minutes; Belair seconds. Motion passes 3-0 (Curran, Belair, Dionne).
Public Hearings
Petition of UNITED FINANCIAL CONSULTANTS, LLC seeking variances for lot area; lot width; front, side, and rear yard 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, Salem, MA (B1 zoning district). Attorney George Atkins. Continued from November 19, 2008 and January 21, 2009.
Attorney Atkins requests a continuance for 272 Jefferson Ave. to March 18, 2009, explaining that no agreement could be reached for the purchase of the unit between the petitioner and the owners of the other units in the building. The petitioner intends to develop plans to rebuild the structure in its original footprint, but the architect was unable to finish them for this meeting.
Belair says she is opposed to allowing a continuance since the issue has been ongoing for a long time and she is sympathetic to the situation of the other condo owners. Dionne moves to continue the petition; Harris seconds. The motion passes 4-1 (Harris, Curran, Dionne and Tsitsinos in favor; Belair opposed).
Petition of SCOTT CHARLTON, seeking a variance from maximum fence height to replace a 6’ stockade fence with an 8’ stockade fence for the property located at 11 ORLEANS AVENUE, Salem, MA (B2 zoning district).
Scott Charlton presents his petition and explains that since trees were removed from a neighbor’s property, Charlton’s property is now exposed to increased noise and light from the street. Curran asks for clarification of where the fence will be located and how long it is; Charlton explains it will be located at the rear of the property and that it is about 50-51 feet long.
Dionne opens the item up for public comment.
Thomas Potorski, 9 Orleans Avenue comments that some would consider this height a “spite fence.” He says the variance should not be granted because he felt the zoning ordinance should be strictly enforced and apply to all properties. He did not oppose an 8’ fence on the portion of the property which abuts a commercial use, where the zoning allows it, but he did oppose the fence on the portion of the property abutting a residence.
Charlton shows photos of what the property looked like before the trees were removed from 9 Orleans Ave.
Councillor Steven Pinto, 55 Columbus Ave., spoke in support of the petition, stating that this was a quality of life issue, and the City should be supportive of a resident who wished to maintain his property value by reducing the noise and light to which his home is exposed.
McKnight shows the Board a plan of a drain repair proposed by the City and the location of an easement the City owns across the rear of the property. St. Pierre says the City plans to install the drain in the spring, but he does not know the date.
Belair: motion to approve the petition with two standard conditions, plus a condition to wait until the City has completed its drain pipe repairs to begin construction of the fence. Petitioner confirms he is willing to wait.
Curran seconds the motion, which passes 5-0 (Harris, Belair, Dionne, Curran, and Tsitsinos; none opposed).
Petition of KERRY MURPHY and DANIEL CEDERHOLM, seeking variances from minimum rear and side yard setbacks, and from maximum lot coverage, for the property located at 10 ½ MALL STREET, Salem, MA (R2 zoning district).
Dan Cederholm presents the petition, explaining it will consist of a family room and master bedroom, with no egress stairs from the second floor to the outside.
Dionne opens the item up for public comment. No one comments; Dionne closes the public comment portion.
Harris moves to approve the petition with 8 standard conditions. Seconded by Belair; motion passes 5-0 (Harris, Belair, Dionne, Curran, and Tsitsinos in favor, none opposed).
Petition of ROBERT CLARK, seeking a variance from minimum side yard setback for the property located at 16 PATTON ROAD, Salem, MA (R1 zoning district).
Robert Clark presents the petition, stating he wants to add living space, have by adding a one-level great room with a two-car garage underneath. The existing garage space would remain.
Dionne opens the item up for public comment. No comments are made.
Curran: motion to approve with 8 standard conditions; seconded by Harris. Motion passes 5-0 (Curran, Harris, Dionne, Tsitsinos, Belair in favor; none opposed).
Petition of STEPHEN MORRIS, seeking a Special Permit to modify the currently nonconforming use (office space) to another nonconforming use (multifamily residential) to allow conversion of the existing structure to five residential units on the property located at 315-317 ESSEX STREET, Salem, MA (R2 zoning district). Attorney George Atkins.
Attorney George Atkins presents the petition on behalf of Stephen Morris, stating that his client was previously before Board of Appeals for a Special Permit to allow a change in use. Last year, he wanted to convert the commercial uses on first floor to professional office building use. The Board granted the petition, finding there would not be a substantial detriment to the surrounding neighborhood, and imposed conditions involving the use of the 10 space parking lot at the rear of the building and placed limitations on the first-floor uses. Atkins states that Morris went through real estate brokers and couldn’t find anyone interested in office space; he is therefore requesting a Special Permit to convert the office space to 5 residential units on the first floor. Atkins says this is a
shift in use that is more compatible with the R 2 nature of neighborhood. He says the SRO’s (Single Room Occupant) on the 2nd and 3rd floors don’t use the parking and generally use public transit. He says Morris can control the need for parking for the upstairs tenants somewhat in his selection process for residents. Atkins says there is sufficient parking for the current use.
Atkins presents the floor plan showing 5 residential units to the Board. He says the exterior of the building has improvements planned and approved by the Historical Commission but not yet completed. He says all exterior work will be complete by June 15 of this year, and at that time would begin working on the interior space if the petition were approved.
Atkins says the building historically had commercial uses on the first floor, with employees and customers coming and going, and that this proposal would eliminate most of that activity. He says the economy would not allow the petitioner to pursue office space, but that this would produce a building that’s usable but is closer to residential character of the neighborhood and will generate tax revenue.
Belair asks for clarification of the total number of units the building would contain. Atkins clarifies that the proposed project just includes adding units to the 1st floor. There are also 13 single rooms (SRO units) on floors 2 and 3, so this would result in 18 total units.
St. Pierre comments on the architectural drawing shown and says it was submitted as a result of a conversation with the petitioner; he was concerned about whether the petition referred the conversion of the entire first floor, or whether the commercial units on that floor would be left out of the plan. St. Pierre had asked David Jaquith, the architect, to present a plan clarifying this. The space currently containing a commercial use would not be included in the conversion.
Dionne asks St. Pierre if the rooming house portion requires parking; St. Pierre says it’s grandfathered. Dionne comments that this proposal would make it one of the largest residential buildings in that area.
Curran asks if all the parking was dedicated to the commercial space; Atkins says yes since the residents did not have cars. Curran asks about the approximate size of the proposed units. Atkins says they are about 500 square feet. Belair asks if they are intended as rental units or condos; Atkins says the intent is rental. St. Pierre notes the city cannot regulate that. Belair says she was simply curious because of the market.
Dionne opens the item up for public comment.
Jerry Schuerger, 319 Essex St., says he has reservations about the petition because there have been previous problems with residents in that building, and he says the police and fire departments are over there quite a bit. He supported a commercial use. While he understands there is a financial crisis, he felt 5 additional residential units would mean more traffic. He says if those units are like those upstairs, they will create problems.
McKnight reads a letter from Morris Schopf, 1 Cambridge St., stating Schopf’s opposition to the project because he is displeased with the traffic associated with the current use, and is bothered by the dumpster and unfinished repairs on the property. He states he does not believe the petitioner can prove hardship and thinks the law requires this for Special Permits.
Harris says she received an email from a resident with concerns about parking from 1 ½ Cambridge St. but does not have it with her. She says it does not express strong opposition.
Bill Henning, 15 Lafayette Place, represents the church across the street. He says he is not here to speak against the project but says the abutter notice was not clear that there would be 5 units in addition to the existing 13 rooms.
Councillor Steven Pinto, 55 Columbus Ave., says the City has had numerous properties not go as planned due to the economy, and that he doesn’t think 5 units, would generate much traffic or disruption. He noted that an empty building doesn’t help the neighborhood and that he hadn’t received any calls on it.
Atkins responds to three points that were made: he says the that applicant didn’t draft legal notices for the paper. He also says plans were filed – exterior elevations and a plot plan; the only thing not filed is the floor plan which isn’t a requirement. He also says Mr. Schopf is wrong about standard he’s applying: There’s no question of hardship to apply – the standard for Special Permits is if the new use isn’t more detrimental to the neighborhood. He addresses the question of what kind of impact the residential use rather than commercial use would have on the neighborhood and asks how it could result in more traffic. He says a residential use conforms more with the neighborhood than a commercial use, and that the petitioner has a right to continue his
nonconforming use, which is grandfathered. He says the worst case would be an empty portion of building, as Councillor Pinto pointed out. He says the project would pose no substantial detriment to the neighborhood.
Belair says she sees no problem changing the use from commercial to residential, but that she thinks adding 5 units is excessive and is too intense a use. Curran notes that the current exterior looks commercial. Atkins says if they were granted the petition, they would change the exterior windows; this would need to go before the Historical Commission again.
Dionne says he has a problem with the density and parking situation.
Atkins requests the Board allow the petitioner to continue to the next meeting and says they will come in with treatment of windows in front and would look again at allocation of space and the number of units.
Harris says it would be helpful if there weren’t 5 units.
Dionne says adding 5 units would be a parking problem. Atkins says these are 1 bedroom units and don’t need a lot of parking; the SRO tenants don’t need parking. Dionne says the rooming house tenants are going to put cars somewhere, and this will add to that. Atkins refers to the Board’s previous decision with parking conditions.
Harris notes that with commercial space, there’s swing parking at night. With residential, you don’t have that. Atkins says they could control that. Harris says that the assumption was at least there would be parking at night for these people.
Harris makes a motion to continue the matter, to March 18, Curran seconds; motion passes 5-0 (Harris, Curran, Dionne, Tsitsinos, Belair in favor, none opposed).
Petition of PAUL FERRAGAMO, seeking variances from minimum lot area, minimum lot width, and minimum depth of front yard to allow for a proposed subdivision for twelve (12) single-family homes at 405-427 HIGHLAND AVENUE, Salem, MA (R1 zoning district). Attorney George Atkins.
Attorney George Atkins presents the petition, stating the matter was before the Board previously. He gave a brief 4-5 year history of the property. He says a 27 unit townhouse development was proposed in 2004. This was denied, litigated in land court, which supported Board. The principle issue was use variance (Salem does not permit them, so the Board could not grant one to allow a multifamily use). For the current petition, use is not an issue. The petitioner is requesting dimensional relief for lot area, lot width for some lots, and front yard setback. Atkins notes the visible ledge on the plan and the steepness of the property; he says this makes development difficult and also notes that Highland Ave. is a state highway.
Atkins presents an analysis that shows 7 by right lots. One would front on Clark St., the other 6 on Highland Ave. Atkins explains the difficulties building on these sites would entail, especially concerning elevations, the and amount of rock to be removed, and required blasting to create for privacy into each lot. He says this also be economically difficult, and the lots are almost unusable under current zoning; the costs for utilities, roadway construction were high and the economics of developing would require at least 12 sites. He says the proposed homes these homes could be sold from 250-275K. Atkins introduces Harry Gunderson, architect, and Scott Patrowicz, engineer, who are here to present.
Patrowicz, site engineer, shows grading on plans in detail. The plans show a huge grade difference. The grade going up the proposed street is 10% with two leveling areas at either end. He explains the plains with the houses being “stepped” uphill in a terraced fashion. He says one goal with this plan, besides fitting in houses, was minimizing blasting. There would be some rock walls in back, but they tried to leave a buffer, and there are some trees behind the houses closer to Barnes Circle. He shows how the plans show 20-foot backyards.
Patrowicz reviews the infrastructure: there’s a 16 inch water main on Highland Ave, they would tie in, and he shows where it will be looped on the plan. This would be independent of other properties in area. Dionne asks if the plan requires a pumping station. Patrowicz says that has to be checked out. He shows the sewers on the plan and says that drainage is an issue. He explains they will attempt to attenuate the difference between pre- and post- development flows with the use of basins, swales and infiltrator devices wherever soil is available for these. He shows the snow storage area on the plan. He explains that no more flow would be going off site than does currently.
Atkins says that these are mainly issues to be brought before the Planning Board in the course of subdivision and site plan review. All engineering will have to be done and presented to the Planning Board; should the Board of Appeals give a favorable decision, that would be next step.
Harry Gunderson, site architect, presents. He discusses the physical challenges of Highland Ave. and says a 10% grade is allowable grade under the subdivision regulations and says this plan includes required planting strips, etc. He says they want to keep these landscaping features to make the side pedestrian friendly. He says they were generous in creating parking areas with 2 cars per dwelling plus a turnaround that could also be used for additional parking. He says that each house could potentially fit even 3 cars per driveway.
Atkins passes out photos of the site and discusses the two access points, one on Highland and one on Clark.
Atkins then discusses the legal standards for this type of project. No use variance is required, just dimensional variances. He explains an applicant needs to show minor hardship for dimensional variances; he says the proposed use is not inconsistent with abutting neighborhoods, and that there are immense hardships associated with using this property in accordance with the requirements of the R1 zone.
Dionne opens the issue up for public comment, but suggests taking a five-minute break first so the public could view the plans.
Ed Moscowsky, 12 Clark St. remarks on the10% slope in and out of the site and said he finds it hard to believe that’s the grade – he lived in that house before Ferragamo and says the driveway is steeper than that. Patrowicz says the driveway is 15 to 16%, but the street would be 10%. He says the driveway would be leveled out to bring down slope.
Moscowsky says there’s no existing drainage on Highland Ave. because state drains on that highway don’t exist, and the road floods. He says there’s no way to put in development that ties into state provided drainage which will function, and that there’s no communication between the state and the city with drainage.
Atkins says this is question the Planning Board will require them to address for site plan review and at that time they will provide calculations to show runoff changes.
Moscowsky says the neighborhood has had a lot of experience dealing with the planning board with drainage issues, and those issues were not dealt with competently. He says there is an ice sheet on Clark St. every winter.
Paulina Alexander, 12 Clark St., said there used to be an open brook that ran from Barnes to Highland and flooded every year, which is now worse because of building on Clark Ave. She says now they have an ice sheet on Clark that never melts. She says this plan won’t work – after it’s built and developer gone the neighborhood will be left with a flood.
Atkins says he recognizes there are problems on Barnes and Clark which they’d be required to address with the Planning Board. He says the development would be on the downslope of Highland, not draining toward Clark.
Tom St. Pierre says that stormwater runoff laws have changed, and asked Patrowicz to explain the process he now has to go through with the City engineer. Patrowicz says he will spend a lot of time doing hydrologic profiles, and he must file under the DEP stormwater guidelines, address groundwater recharge, and can’t increase runoff. He says the City engineer is extremely astute in drainage considerations and analysis. Patrowicz says they recognize the flooding issues on Highland, and they are very sensitive to those issues.
Phil Kinder, 7 Barnes Rd., has concerns about emergency responders’ access to the property.
Patrowicz responds that the road is 24 feet wide because they are pulling parking off the road and not anticipating much visitor parking on it considering the adequate driveway space. He says there are also 3 foot grass strips and 5 foot sidewalks, and that given the space, he is not that concerned about access of emergency vehicles.
Atkins says the road will have to comply with subdivision rules of the Planning Board.
Richard Bingham, 22 Barnes Circle, asks who will own the new road? Atkins says the Planning Board has taken the position they City won’t own any more streets, but that City Council has ultimate authority to accept or not accept the street. He says they could enter into an agreement with the homeowners, and there were various possibilities that could be explored for ownership.
Bingham says he has several objections: some properties in the neighborhood are small, but his is on a 15,000 square foot lot, as is his neighbor’s, Robert Ridge of 6 Clark St. He says the projected cost of the new homes is lower than others in neighborhood and he doesn’t want to see home values compromised with an adjacent development of average value less than half what other houses are worth. He says this development is too dense for the current neighborhood. He is also concerned about additional cars and children in the neighborhood, and that the current traffic signals are the sites of frequent accidents. He is also concerned about the impact of blasting on the neighborhood.
Atkins refers to the plan for 7 lots by right; this could be done by ANR. He says this plan would be a worse traffic problem than the proposal because of all the frontage on Highland, and that blasting is unavoidable.
Moscowsky questions the assumption that 7 entries onto Highland (by-right plan) would be more problematic than the 12 lot proposal Harris clarifies that it’s the number of curb cuts that make the 7 entries more dangerous.
Christopher Lane, 403 Highland Ave., says he’s an architect and appreciates what Ferragamo’s doing. However, he has concerns: he notes that lack of “no-touch” space bordering his property. He’s also concerned about the proximity of the new driveway to his property for vehicular safety reasons; flooding; and the height of the building next to his house because it may block the sun. He says that the lot line as shown on the plan isn’t accurate, says there is a piece of land between his property and the street, and wonders what his rights are with regard to that piece. He has maintained it for 6 years, since he bought the house.
Atkins says the rendered plan doesn’t show well enough what landscaping could be done along the abutter’s line, and there’s room to provide buffering. He also says it’s possible to adjust the road, and they could redesign the location of the driveway.
Jeff Bachmann, 3 Clark St., says he’s concerned about snow storage near his property, the proximity of a newly proposed house to his house, and about blasting next to his property.
Patrowicz says the distance between these houses is 50 feet, and that Clark St is fairly flat. He says the snowmelt flows in the direction of Clark St. away from his house, plus there’s a buffer zone.
Kevin Daugherty, 24 Barnes Circle, concurs with what Bingham said about blasting concerns and said he’s concerned about the steepness because kids might cut through to Dunkin Donuts.
Patrowicz says there’s a 10 foot grade change now, but they’re proposing a flat area behind house, wall and slope into wooded area. Could put fence along back lot line so kids can’t cut through. Wall is 3-5 feet.
Atkins says there’s a legal question – each homeowner would have a liability policy. But trespassing complicates it and there’s no clear answer; also, the Planning Board prefers to resolve these issues.
Patrowicz says he could also do terraced gardens for safety, or a decorative fence.
Paul Ferragamo, owner says Scott will explain heights of terraced walls. Patrowicz says they are around 20 feet, much like some of the other walls on Highland Ave.
Kathy Kindler, 7 Barnes Rd. asks if the proposed driveway connected to the light that’s there; Patrowicz says no, it’s not set up for that. Kindler is concerned about property value issue and traffic problems, and blasting – are neighbors protected from blasting? Atkins explains legal procedure imposed by city. St. Pierre corrects him and says it’s the state fire marshal’s office that regulates this and explains the pre-blast survey requirement.
Patricia Labertie, 3 Lyons Lane, asks about the light at intersection; will there be lights facing the new road? Patrowicz says no, it’s just for Olde Village Rd. and Highland Ave.
Robert Ridge, 6 Clark St., commends the petitioner’s engineer and architect and says they have addressed a lot of issues. Ridge didn’t like the previous plan, and says not having 6 properties with access onto Highland is a good idea. He agrees with Mr. Bingham about property value; he feels that sandwiching in 12 properties into the area, selling for what they’re projecting, and considering they’re substantially smaller than other lots in the neighborhood, will bring down property values. Doesn’t want to see approved before drainage issues are engineered.
Atkins says these will be 1800 to 2200 SF houses, suggests that it won’t hurt neighboring property values and could enhance them. Property is 2.51 acres.
Moscowsky doesn’t believe the hardship arguments and says even if built according to existing zoning, the plans would still need to go through the Planning Board.
St. Pierre says this is not correct; explains what applicant needs to do to build by right, and says it doesn’t require Planning Board review.
Moscowsky says he’s concerned about blasting, and that at 11 Clark st., a new house was built, and the blasting was a nuisance. He says once they fractured the rock, the drainage problems started. His concern about blasting problem isn’t shaking, but drainage.
Councillor Pelletier says matters of drainage and heights go to the Planning Board, and that this board only looks at variances applied for. He says that considering the past proposal for this property, this is much better. He doesn’t like the density, however. He mentions the possibility of transferring the site exit up Highland Ave. He says he opposes the other exit because of the Dunkin Donuts traffic in that area. He thinks people will cut through Barnes Cir. Proposes that everyone goes in and out one way. He also asked the board to base the variance granted for density on the average neighborhood density, and that this could mean taking one or two houses out of the plan.
Atkins shows the plot plan showing lot sizes. He says he does not want Clark St. used for development, and they would be fine with a fire gate. He also suggested talking to the state about re-signaling the intersection and moving the Highland Ave site driveway. He also says they are aware of current flooding problems that exist.
Atkins says he thinks the 7 house as of right subdivision would be dangerous, and no one would be happy with it. He doesn’t know what the requirements would be of the Planning Board or Mass Highway if they were to change plans to accommodate.
Danielle a reads letter into record from Wayne and Katie Silva, 20 Barnes Circle, opposing the project.
Harris asks if it is possible to align the intersection of the site driveway with the existing light at Olde Village. Atkins says it would be much more difficult to place the street at that angle, to get correct slope. Harris says this might solve the traffic issues. Atkins says they will examine it. Patrowicz says a problem with this would be that it shortens the length of the road; the road would either be steeper or the site would require more blasting. Atkins says Mass Highway might ask to pay for redesigning intersection, and if that happens they can’t do it.
Belair says it’s a nice project, but possibly too dense. Drainage issues will be addressed by the Planning Board. She says she’s concerned about 403 highland; for that resident to have the new road up against his property is not right; it needs to be reworked.
Harris thinks this is not as significant, since there are buffers between the street and #403. She likes the plan, says it’s a positive design, and says several site lots adjacent are smaller than required by zoning.
Curran says that looking at the by-right scenario is a good exercise and it illustrates intention of the zoning, but carried out, it’s not good for neighborhood or city. She thinks it’s too dense, lot sizes generally are in keeping with surrounding lots, but the rock limits the size of the usable area. She says that while it should be less dense, it must be more than 7 lots because of the investment required. She also says it would enhance the area. She likes the plan of pulling the houses forward and has no problem with the front yard variance; she also likes the porches. However, the area for lots is small, and she has a problem with the very steep slope by the corner lot, but these issues will be addressed by the Planning Board. She asks if the Planning Board could
require them to tie the project in with the traffic lights. Atkins says they could, but candidly he’d tell them the same thing, it would kill the project.
Tsitsinos says he likes the project.
Dionne also says he likes it, but it’s too dense, and asks if the applicant is willing to diminish the density.
Atkins says this can be discussed and asks to continue the hearing to March 18 and to allow time for them to rework the plan.
Dione: motion to continue to 3/18/09, seconded by Curran. All in favor (5-0).
Dione: motion to adjourn the meeting, seconded by Tsitsinos. All in favor (5-0).
Meeting adjourns at 9:25 pm.
Respectfully submitted,
Danielle McKnight, Staff Planner
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