City of Salem Zoning Board of Appeals
Minutes of Meeting
Wednesday, August 19, 2009
A meeting of the Salem Zoning Board of Appeals (“Salem ZBA”) was held on Wednesday, August 19, 2009 in the third floor conference room at 120 Washington Street, Salem, Massachusetts at 6:30 p.m.
Those present were: Robin Stein (Chair), Beth Debski, Bonnie Belair, Rebecca Curran, Jimmy Tsitsinos. Also present were Danielle McKnight, Staff Planner, and Thomas St. Pierre, Building Commissioner.
Those absent were: Rick Dionne, Annie Harris
Stein opens the meeting at 6:35 p.m.
1. Approval of minutes: July 15, 2009
Debski made a motion to approve the minutes of July 15, 2009, seconded by Stein and approved (4-0 – Stein, Tsitsinos, Debski, and Belair in favor; Curran was absent at the July 15 meeting).
2. Old/New Business: Request of SHALLOP LANDING AT COLLINS COVE PARTNERSHIP, LLC to extend Variances previously granted for a period of six (6) months for land between SZETELA LANE and FORT AVENUE, Salem, MA.
Attorney John Keilty. Because only three members are here tonight who are eligible to vote on this item (Debski, Belair and Tsitsinos), the Board votes (3-0) to continue the item to September 16, 2009.
3. Continued petition of CARTER VINSON seeking a Variance from maximum width of entrance and exit drives to allow for an off-street parking space proposed for the property at 32 BEACH AVENUE, Salem, MA, in the Residential One-Family Zoning District.
McKnight tells the Board this item has been withdrawn.
4. Continued petition of BVS CORPORATION seeking Variances from required lot area, lot width and minimum rear yard depth to allow for the subdivision into four single-family house lots of the property at 16 SCOTIA STREET, Salem, MA, in the Residential One-Family Zoning District. Attorney Bill Quigley. (Agenda item 8).
Brian Sullivan, the property owner, requests to continue the hearing to September 16, 2009. McKnight confirms she has received a signed request form from Attorney Bill Quigley. Sullivan explains he has revised plans; the neighbors had requested to see these updated plans, and he wants the opportunity to share them before coming before the Board again. Beth moves to continue the hearing to September 16, 2009, seconded by Stein and approved (5-0).
5. Petition of JACQUELINE’S GOURMET COOKIES seeking Variances from minimum distance of an accessory structure to the main building and maximum height of an accessory structure to allow for construction of two storage structures on the property located at 96 SWAMPSCOTT ROAD in the Business Park Development District (agenda item 4).
Marc Hazel presents the petition. He says they have spoken with the other condo owners in the business park complex, and they do not have any issues with the proposal. Bill Yuhas shows photos of the property to the Board.
Stein opens up the issue for public comment.
Fred Hutchinson, 15 Robinson Rd., says he doesn’t want his business to be impacted by the proposed food storage, particularly any dust that would be generated. Stein says she doesn’t see how the project would impact him, and furthermore, the project must comply with any requirements the Board of Health may have.
There being no further comment, Stein closes the public comment portion of the hearing.
Belair asks how the flour is put into the silos. Hazel says a truck hooks up to a hose and pipes the flour into the silos. To get it out into the bakery, the use a vacuum system. Flour will be deposited through piping inside the building. He says it’s a fully hermetically enclosed system, not open to the air.
Debski asks if they need a permit from the Health department; Hazel says no, but they are inspected by the Salem Board of Health and the FDA. He has contacted Janet Mancini to let her know what their plans are. He says this is a common technology for storing and delivering flour and sugar.
Stein says this seems like a minimal request that is consistent with City ordinances. She notes there would be no other place to put it, given the shape of their lot. Curran references a letter the Board received from Thermal Circuits, located in the same business park, supporting the project.
Belair makes a motion to approve the petition with six (6) standard conditions, seconded by Stein. The motion passes 5-0 (Belair, Debski, Stein, Curran, Tsitsinos in favor, none opposed).
6. Petition of ROY LAPHAM seeking Variances from minimum lot area, minimum lot area per dwelling unit, and minimum rear and front yard setback requirements to allow for construction of a two-family residence on the property located at 2 ATLANTIC STREET (AKA 17 LUSSIER STREET) in the Residential Two-Family Zoning District (agenda item 5).
Paul Fermano, architect for the project, presents the application. He says this was a site that was previously approved in 1995, but never built, and so he is asking for relief again. He says this is a two-family wood frame home, much like others in the neighborhood. He says the project is consistent with the average dimensions in the surrounding neighborhood.
Curran asks if this is the same footprint as the original proposal; Fermano says it is. Belair asks about the composition of the outside. Fermano says that due to cost it will probably be vinyl, possibly cement plank if budget will allow.
Curran asks which way the front is – Fermano says it’s now facing Lussier. Debski says the old decision states the house was to be built according to the submitted plans. Fermano says this is true, but drawings other than the plot plan were never submitted.
Debski asks for clarification for when the ANR was granted and when the variances were granted – McKnight says the variances were granted to allow for the ANR. Stein says the ANR was not submitted with the original variance application.
Fermano says there are no other drawings on file with the building department or at the Registry of Deeds. Curran asks about the information Fermano provided on the other houses in the neighborhood. Fermano says most of the houses are two-family with a couple of three-families and single-families.
Belair asks if the tree shown on the plan is existing; Fermano says yes. Belair asks if there would there be parking; Fermano says yes. Belair says the project is consistent with the neighborhood but she’s bothered that there’s no other landscaping.
Debski says parking spaces need to be 9 x 18’, and these spaces are smaller. Fermano says the 15’ dimension indicated on the plan is actually a setback, but the parking spaces are 16’ x 19’, and he could pull them over another foot or two. Stein says they will need to be 9’ x 18’. Stein says she’s glad they are providing four spaces on the site.
Stein opens the public comment portion of the hearing.
Dan Tremblay, who is working on the project, says the property will stay in the family; they agree additional landscaping should be done and they intend to do that.
There being no further comment, Stein closes the public comment portion of the hearing.
Belair says this is consistent with the neighborhood, but comments that she’d like to see more landscaping. She understands they intend to do more, but it is a big house on a small lot with no green space and she wants some assurance it will be landscaped. Curran wonders about the curb cut so close to the corner – does it need to be 20 feet from the corner? Stein says the applicant should bring the final plans to the building inspector to ensure these dimensions are all right. She also says this project would benefit from St. Pierre’s giving it a final word and suggests they come back. Fermano says he’d be happy to give up the current parking design, ask for relief from tandem parking, and condition landscaping in the decision - he’d prefer to do that and have
the Board vote tonight. Stein agrees, and says he will also need a buffer along the parking area. She notes that she thinks the project is appropriate and consistent with the neighborhood and notes that no one has spoken in opposition.
Curran moves to approve the petition with tandem parking and with landscaping requirements, eight (8) standard conditions and one (1) special condition, seconded by Stein and approved 5-0.
7. Petition of MICHAEL & HEATHER UKSTINS seeking Variances from Section 7-3 of the Salem Zoning Ordinance to allow four (4) existing stacked parking spaces to remain on the property located at 7 ENGLISH STREET in the Residential Two-Family Zoning District (agenda item 6).
Attorney John Keilty presents the petition. He says the Ukstins own Unit 2 of the condo unit. The condo was created in February of 2007, and there were spaces deeded at that time to the residents – they are tandem, stacked spaces. In 2008, Mr. Carro, the original developer, came before the Board for permits to put parking spaces in front. Atty Keilty says those always require variances, and the parking area had reached the curb cut, and there could have been loss of parking along the street and parking in front yard. He says the Board approved those spaces. Stein corrects him and says the Board denied the spaces in front but granted those in back. Atty Keilty concurs. He says the case was appealed to Superior Court; the case was bifurcated and his clients are now
seeking approval only on the spaces in back. He says they no longer have the benefit of the approval of the rear spaces because of the first case being withdrawn.
Atty Keilty says the spaces are accessed via a paper street shown on the plan, and he believes his clients have access and egress for these spaces. He presents the Board with pictures of the property, showing the access to the spaces. He says in Superior Court, the focus was whether his clients had the right to use the way. He says the matter before this Board is whether the use of the stacked spaces derogates from the intent of the zoning. He shows additional photos showing the alignment of the spaces.
Curran asks about the use of the parking spaces – are there three units that use them? Atty Keilty says three of the units have deeded spaces, and the other parks on the street.
Stein asks about the status of the lawsuit. Keilty says that according to City Solicitor Beth Rennard, the case has been remanded to the Board of Appeals. Stein says it’s a remand, but the action is still alive. She says there has been no judgment of dismissal, and the Court remanded the case back to the Board with the parties retaining all their rights. She says the variance is still out there – Mr. Carro isn’t asking the Board to withdraw it, and so there is a live variance under appeal. Stein says the Board could declare he didn’t have standing the first time, deny it, and then evaluate this petition.
Stein says pursuant to a court order and judgment, the Board will determine whether Mr. Carro had standing to petition the Board for the variance granted. She says that given that Carro did not own the property at the time he submitted his petition, he did not have standing to pursue the variance, so the variance was improperly granted. She says the Board will treat the current petition as a new petition for a variance for four parking spaces.
Stein opens the issue up for public comment.
Attorney William Delaney, 246 Andover St., Peabody, is here on behalf of Ellen Twardowski, who is present. He says Attorney Keilty referred to a public way, and there may a difference of opinion of what that’s called, but he says Mrs. Twardowski owns the property to the rear of the parking area. He was party to the previous litigation and involved in negotiating this with Ms. Rennard; he says the Board’s interpretation was what was intended. He says they asked the court to send it back in the fashion Stein suggested.
Atty Delaney says he is in opposition to the new petition – while he’s sympathetic to the property owners, the difficulty was with the developer. He says the applicants purchased a condominium with deeded parking spaces which did not really exist as a matter of law. He says when Atty Keilty talks about the previous existence of the spaces, they actually only began use this way when the condo was created in 2007. Prior to this, a third was grass and two-thirds was paved in an enclosed patio area with a chain link fence; he has photos he can share. He says in 2007, the spaces were created, but should not have been created or sold as they were, since they didn’t comply with zoning. They are undersized and require setbacks of 2 feet, which they do not have. There are also
aisle requirements that are not met. He says Mrs. Twardowsky has lived there a long time and this impacts her quality of life, with the ingress and egress of this shared way; when cars back out of that, they come close to the corner of her porch. There are also issues with fire safety and snow removal. He says it will impact the value of her property. He refers to the Board’s previous decision on the curb cut on this property; in the wording of the denial of the parking area, the Board had found that not everyone had parking on site in the city, that many parked in the street, and that no hardship was demonstrated by lack of parking. He says there is not a legitimate legal hardship and requests that the Board deny the relief.
Stein says previously, Mrs. Twardowski said she owned the right of way, and asks what her current position is. Belair asks if that is an easement. Stein says it’s a derelict fee, and all the abutters own to the center and have rights to use it.
Stein says they have to consider the impacts to the neighborhood on the whole neighborhood – if parking isn’t on the property, there will be more cars on the street. Stein asks if we approve this, Mrs. Twardowski can’t drive immediately along her side of the way? Atty says potentially she wouldn’t be able to. Stein says that previously, her belief that she was being impacted was premised on her ownership of this way.
Stein says putting the parking on the street would potentially impact the neighborhood and Mrs. Twardowski more than parking in this way would.
Atty Delaney says the Ukstins don’t have enough area to rightfully park in the right of way. Stein says they could possibly give two spaces. Stein says she sees a de minimus impact on Mrs. Twardowsky if the spaces are used. Atty Delaney says impact isn’t the legal criteria for issuing the variance. Stein says Atty Delaney said this would negatively impact Mrs. Twardowsky as part of his argument against the petition. Atty Delaney says he referenced this, but it’s not the legal standard that decides the issue. Stein says the Board has to consider the impact of the petition on the neighborhood. Atty Delaney says his client suffers less impact by having the allowed number of cars there.
There being no further comment, Stein closes the public comment portion of the hearing.
Belair says she feels very strongly that the Ukstins bought the condo and thought there were parking spaces; if they resell, that’s a burden on them. She says the recourse may be to go after the developer, but she thinks this is a de minimus impact on the abutter’s quality of life. She says two or four cars wouldn’t affect her that much; a fire apparatus wouldn’t be able to go in there anyway. She feels very strongly on the side of the condo owners, and this is third time this has been before the Board. Debski agrees; any opportunity the Board has to get off street parking, she says they need to take. She doesn’t think this is a lot of relief to give.
Curran says not much has changed other than the remand; they are looking at 5 feet in length and 1.2 feet in width less than what is required. She has no problem with this, and none of the issues have changed since last year.
Stein agrees, she stands by the original decision, that the variance could be granted without substantial detriment to the public good. She says it would cause substantial hardship to the applicant if denied. She says it’s in the interest of the neighborhood to keep off-street spaces. She says without this, the Ukstins would suffer a hardship to their quality of life.
Tsitsinos likes it the way the original variance was granted and sees no reason to change it.
Stein says the Board should first annul the original variance and rescind the decision. Curran moves to rescind the variance granted to Paul Carro due to lack of standing for the variance from minimum stall and setback requirements at 7 English Street, seconded by Stein and approved (5-0).
Curran makes a motion to approve the petition with one (1) standard condition, seconded by Debski and approved 5-0.
8. Continued petition of WILLIAM WHARFF seeking Variances from minimum lot area per dwelling unit, and Special Permits to change one nonconforming use to another and to increase existing side yard setback nonconformity, to accommodate conversion of an office building to nine (9) residential condominium units, on the property located at 162 FEDERAL STREET, Salem, MA, in the Residential Two-Family Zoning District. Attorney Scott Grover (agenda item 7).
Attorney Scott Grover presents the petition. Bill Wharff, the developer, and Peter Pittman, the principal architect, are also present. Atty Grover shows photos of the old convent, saying it was once part of St. James Church. He says Mr. Wharff is under agreement to purchase the property contingent on his ability to develop it into condos.
Atty Grover says when they first presented this project in the spring, the original development called for 9 units and 15 parking spaces. At the hearing, there was concern expressed by the neighbors about the density. He says they have been working with the neighborhood on the density issue. He says one reason it’s taken so long to come back to the Board is they has been trying to negotiate purchase of the property behind this site in addition to the site of the original proposal. Atty Grover shows a plan showing the whole area owned by the archdiocese, which is about a 10,000 SF parcel. He says the archdiocese has authorized them to submit this proposal. He says the addition of this piece of land allows them to respond to concerns about density; this allows them to move the
parking lot back and include much more green space. Atty Grover also says he heard the neighbors’ concern that other houses on the street had yards, and this one would not, as originally proposed. He says the addition of the land also allowed them to plan three more parking spaces in back of the site; even though there was parking on the site previously, there might not have been enough to accommodate visitors. He says this plan has 18 spaces shown, which will be an improvement. He says they have also reduced the number of units in the building from 9 to 8. He explains how this changes the relief needed – they still need a variance from lot area per dwelling unit, but before they were proposing 1166 SF per dwelling unit, and with the addition of 10,000 SF now, and dropping a unit, they’re now at 3,200 SF per dwelling unit. He says that is the only dimensional relief the project requires. In the previous petition,
they were going to put a side entrance, but that’s been eliminated. They are also asking for a Special Permit to go from one nonconforming use to another.
Peter Pitman, Pitman & Wardley Architects, 32 Church St., says there will be no architectural changes to the front and side other than repairs. He says the color scheme draws from historical pallets and he shows the color plates. He says there will be new doors, windows, and landscaping, with as much green space as they could fit. He runs through the layout of the units in the building. He says there is no common access from the first floor to the elevator, so all access to that area will be through the floor nearer to their parking space. He says the first floor will be all dedicated to the units except for egress space. The second floor will have two more units of 1600 SF each, the third floor has two units – a 1400 and an 1100 SF unit, and half a townhouse unit, partly on
the third floor and partly in the attic floor.
Wharff says there are 150 trips per day for the current use; he says with the 8 units he’s proposing, the bulk of the traffic will go to the Bridge St. side. He says there no longer is a common hallway on the first floor to allow the upper floors to the elevator, meaning not everyone will come in through Federal St. He says the average square footage of the units has also increased. He discusses the pricing of the units – 4 of the 8 will be at or over $400,000.
Stein opens the issue up for public comment.
Attorney John Carr represents the Federal St. neighborhood association. He agrees there’s been progress, but he says their support is not confirmed yet. He says that at the May 20 meeting, the Board agreed with the neighbors that the density was too high. He says there was a subsequent walk-through of the building. He says there was a discrepancy between the square footage that the assessor had on record for the building and that presented by Mr. Wharff. He says today at noon he and Mr. Grover met to discuss that discrepancy. He says it was due partly to the fact that he has living space in the attic and basement, where the assessor doesn’t count living space. He says the problem is, as a group, they have several key abutters who couldn’t be here because
of vacations. He says they like the direction this is going, but not everyone is here. He says they prefer the project continue to September and he says Mr. Grover is agreeable to that – if they put this off, the neighborhood can be solidly behind the project.
Ken Wallace, 172 Federal ST. – says he likes the way this is going, though he would like to see the plans.
Joyce Wallace, 172 Federal St. – says she had participated in the walkthrough – they have not yet seen plans, and this is the first they are hearing about 8 units instead of 9.
McKnight says Meg Twohey has submitted a letter, but that in light of recent events it may not apply; she asks Atty Carr if he would like the letter read. Carr and Stein say to wait to read the letter until next month. Stein says she has no problem continuing, but she won’t be at September’s meeting.
Stein says Harris or Belair could vote, but they would need to listen to the tape of the May 20 meeting. Stein requests a letter from the archdiocese authorizing the petitioner to act on their behalf, so there are no standing issues. Atty Grover said the reason the plans were submitted so late is because they just found out this morning that the archdiocese felt the negotiations had progressed far enough that it made sense to come before the Board with this proposal.
Debski moves to continue the hearing to September 19, 2009, seconded by Stein and approved 5-0.
Stein moves to close the meeting, seconded by Beth and approved 5-0.
The meeting adjourns at 8:10 p.m.
Respectfully submitted,
Danielle McKnight, Staff Planner
Approved by the Board of Appeals 9/16/09
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