City of Salem Zoning Board of Appeals
Minutes of Meeting
Wednesday, November 18, 2009
A meeting of the Salem Zoning Board of Appeals (“Salem ZBA”) was held on Wednesday, November 18, 2009 in the third floor conference room at 120 Washington Street, Salem, Massachusetts at 6:30 p.m.
Those present were: Rick Dionne (Chairing the meeting), Becky Curran, Annie Harris, Beth Debski, and Jimmy Tsitsinos (alternate).
Also present were: Danielle McKnight, Staff Planner, and Thomas St. Pierre, Building Commissioner.
Those absent were: Robin Stein (Chair) and Bonnie Belair (alternate).
Dionne opens the meeting at 6:30 p.m.
Approval of Minutes
The minutes of 10/21/09 are reviewed. Curran moves to approve the minutes, seconded by Dionne and passed 3-0 (Curran, Dionne and Tsitsinos).
Petition of THOMAS McDONALD, seeking to remove a clause from a previous Zoning Board decision requiring owner occupancy for 3 family use for the property located at 11-13 BRYANT STREET, Salem, MA (Residential Two-Family Zoning District).
McKnight says the Board has received a request to continue the item to the next meeting. Debski moves to continue to December 16, 2009, seconded by Harris, and approved (5-0).
Old/New Business: Request of North River Canal LLC for an extension of the Variances granted for the property at 28 Goodhue Street.
Atty Joseph Correnti, 63 Federal St., requests an extension of the variances previously issued for 28 Goodhue St. He says they wish to keep the permits in place, since they went through extensive permitting. Anthony. Roberto, one of the property’s trustees, addresses the Board and explains they still have bank backing and intend, in good faith, to go forward with the project. He requests to extend the variances for 6 months from last extension, until June 30, 2010. Harris moves to approve the request, seconded by Curran and approved (5-0).
Petition of REINIER CABRERA, seeking Variances from minimum side and rear yard setbacks, and minimum lot area per dwelling unit, to allow for the conversion of the one-family house on the property located at 12 WILLSON STREET, Salem, MA (Business Neighborhood Zoning District) to a two-family house, and to allow for the addition of an emergency exit at the rear of the house.
Dionisio Cabrera, 12 Willson St., and his daughter Jen present the petition. Mr. Cabrera says they wish to put in an emergency exit, which would also act as a privacy entrance, so that their daughter and her children can use the top floor as a second unit. He says there are 3 bedrooms on second floor, and two on the first floor. He says the city’s information about the number of rooms in the house is incorrect.
Curran asks if presently, the house is set up as a two-family. Jen Cabrera says no; Dionisio Cabrera says yes. He explains that it could be a two-family, but they use it as a one-family. Dionne asks if this is because the house was only allowed to be used as a one-family; Mr. Cabrera says yes.
Curran asks about the history of the property, which Jen briefly explains.
Curran asks if this proposal is for nothing more than to put the back stairs in, and it would still be a one-family; Mr. Cabrera says yes.
St. Pierre asks when they bought the house; Mr. Cabrera says 2004.
St. Pierre asks if there are were two kitchens in the house at that time, and are there currently two kitchens in the house? Mr. Cabrera says no, there is only one kitchen, in the first floor. St. Pierre says, So what you are proposing to do is make a second unit by adding a kitchen and the stairs? You are adding another unit? He explains that this is what the Board is trying to determine.
Debski asks if the city records show this is a single family? St. Pierre says yes.
Curran: So it is more than just putting the stair in – you’re asking to turn from a single to a two family.
Curran asks for help defining what makes a second unit. St. Pierre explains that it’s possible to have another kitchen, for example, in the basement, but if all the components of a unit are present – a second egress, and areas for bathing, cooking and sleeping – these make it a separate unit.
Curran asks for clarification of the history of the lots. McKnight explains that this was once one larger lot, which previous owners had divided into two lots, and they had gone to the Planning Board for a waiver from frontage in order to do that. She says the Planning Board granted the waiver, and where the controversy came in, in subsequent decisions by the ZBA denying permission to make this a two-family house, they cited the Planning Board’s waiver from frontage decision, saying that decision specified that the property could only be used for a single-family house. However, she says if you look carefully at the language of the Planning Board decision, it does not say that, only that it would need to be used as a residential use. She says the Planning Board may have intended it to be a single
family house, but when it went to court, the court came back and said the Planning Board’s language had not been clear.
Harris points out that the court had upheld the ZBA’s decision denying the two-family house. McKnight says that’s true, but previous applicants had asked for different relief in order to achieve the goal of a two-family house – they had asked for a special permit to change the use, the petitioner claimed this should have been allowed by right, and the court disagreed with that. She says what the court didn’t rule on, was whether the Board could have allowed this to be a two-family, because they were never asked to make that ruling; she doesn’t think the previous petitioners ever asked for the right relief.
Curran notes the Planning Board had gotten the previous owners to agree to only using the house as a one-family use; McKnight clarifies that the wording of the decision only specifies that the use was restricted to residential, not necessarily one-family, which is why the Planning Board would not be hearing the petition again in order amend the first waiver from frontage decision. She says the alteration isn’t necessary because the Planning Department’s interpretation of “a residential use” is simply “residential,” not “single-family.”
Debski notes that the minutes of the Planning Board meeting show the intent was to keep the property used only for a single-family home; further, she was present at the meeting at which the discussion took place, and she remembers the intent.
Curran asks what the dimensional requirements are for a residence in B2 – St. Pierre says residential uses in B2 must conform to R2 requirements. McKnight says lot area per dwelling unit required is 3,500 square feet; the applicant is proposing 2,500.
Dionne opens the issue up for public comment.
Alma Pelletier, 30 Horton Street, speaks in opposition, saying she has major issues from drainage from 12 Willson St.. She says the original owners paved, and then the current owners paved more even though she asked them not to. She says there has been damage to her lawn and garage from water. She also says one of the children drove into their yard and climbed the fence, and that there has been loud music from the house. She says she fears further decline in their quality of life if it is converted to a two-family. She also says she doesn’t want any further encroachment into the yard toward her property. She presents photos of the property she has taken to the Board.
At Large Councillor Steven Pinto, 55 Columbus Ave., speaks in opposition. He says that a financial hardship claim is not a legal hardship as grounds for a variance. He says everyone is in the same situation with tough economic times. Also, he says this is a small lot at 5,000 square feet. He says the original owner agreed to keep this as a single family for good reason. He agrees that the neighbors would suffer decline in quality of life.
Erle Soper, 17 Willson, Rd., speaks in opposition because the neighborhood is very congested; he says this was intended to be a single family and should stay that way. He says snow removal is a problem. He says the quality of life has lessened since that house has been there.
At-Large Councillor Arthur Seargant, 8 Maple Avenue, says he knew the person who used to own this property, and a large compromise was made so that this lot could be split in the first place. He says he opposes this because of density issues. He says the property is surrounded by one-families on either side, and significant relief was given to build just a single family in the first place.
Dionne asks if Mr. Cabrera would like to respond.
Mr. Cabrera says the neighbors’ concern are not valid, and that the drainage problems are not his fault. He and Jen Cabrera also say their neighbor Alma Pelletier has entered their property without permission. Mr. Cabrera says this neighbor also has the same lot and has a two family house, and there is plenty of room on their lot.
Dionne says he understands what Mr. Cabrera is saying, but that the Board does need to look back at how the lot was originally created.
Mr. Cabrera than says he says they don’t want to make this a two-family house, they just want to put in the rear staircase for the safety of the kids. Curran says, in that case, there would be no second kitchen put in. Mr. Cabrera says no. She says she would not support that, and it doesn’t meet threshold for a variance. Curran asks what relief they need for the staircase only; McKnight says they propose 25 feet, and 30 feet is required.
Curran points out that the plans submitted show a second kitchen, so this would mean a second unit. She says if they wish to ask for only the staircase, she would consider that. McKnight says if the applicant doesn’t want to convert the house to a two-family now, the Board could grant the relief for the staircase only and not grant the other requested relief. St. Pierre concurs – lesser relief than what was asked for can be granted.
Curran says one problem is when the Cabreras move out, it could easily become an illegal two-family house.
Harris says she’s uncomfortable only granting some of the relief granted.
Curran says again she does not think this meets the standard for a variance for a two family house, but she’d be willing to entertain a petition for only relief for the back stairs. However, the petition would need to be amended to clarify that this is only they were asking for.
Harris says she wants to submitted plans to show exactly what they’re asking for.
Jen Cabrera says they didn’t even want relief from the second unit – they were going to ask for that for the first application they submitted, but when they came back with the second application, this was not their intent. McKnight points out that the second application shows a full second unit, including a second kitchen, which is why the petition had to be advertised as asking for a second unit.
Debski says she would not support the variance request for a stair to be a separate entrance to the upstairs, since she believes that means a second unit will be put in and they will eventually try to sell it as a two-family.
Dionne says he doesn’t have a problem with the emergency exit. Mr. Cabrera says this is the only reason they came to the Board.
Tsitsinos asks how many stairwells there are currently; Mr. Cabrera says two. Tsitsinos responds that there should not then be an issue with an emergency exit.
Curran suggests they could come back with a new application and a plan reflecting what they want to do, showing only the rear staircase as another entrance, but without asking for relief to make this a two-family house.
Dionne explains the Board will be voting now, and they have the option to withdraw without prejudice so they can come back with another proposal. He says if they don’t do that, and the Board denies the petition, they can’t come back for two years except with a finding from the Planning Board that the plans are substantially different. He points out also that if there’s already a second egress, there is no need for the separate staircase if this is to remain a legal one-family.
Mr. Cabrera says he would like to withdraw without prejudice.
Curran moves to accept the request of the petitioner to withdraw without prejudice; seconded by Harris and approved 4-1 (Tsitsinos, Dionne, Harris and Curran in favor, Debski opposed).
Petition of JOSEPH A. SKOMURSKI, seeking a Variance from minimum rear yard setback to construct a two-level deck at the rear of the existing two-family house, and a Variance from minimum side yard setback to construct a covered side porch, on the property located at 29 CARLTON STREET, Salem, MA (Business Neighborhood Zoning District).
Joseph Skomurski presents the petition, explaining this is a two-family house he is turning into two condos, and he wants to put two small decks on the property. He says neighboring houses have similar construction. He explains that the second floor deck at rear of house and the existing stairs would be rebuilt at back of property, and they will be renovating it with historic finishes.
Curran asks why the bottom deck is allowed by right but not the top? St. Pierre explains that historically the City has allowed decks to be accessory structures on the first floor, but when a second story is put on, it’s treated as the structure..
Debski asks if there is any parking there; Skomursky says no.
Curran asks if this is a legal two-family? St. Pierre says yes, and the renovations are fully permitted.
Dionne opens the issue up for public comment.
Nat Lord, 27 Carlton St., asked which way the roof would pitch.
Skomursky says toward the driveway, connecting to a gutter.
Lord says as long as he can see a gutter there, so he wouldn’t have drainage problems.
Tsitsinos comments that this project is a huge improvement to the neighborhood.
No further comments are made. Curran moves to approve the petition with seven (7) standard conditions and one (1) special condition that the applicant install a gutter on the new side entrance to prevent water from shedding onto the neighboring property, seconded by Harris and approved 5-0 (Dionne, Harris, Debski, Curran and Tsitsinos in favor, none opposed).
Petition of RICHARD JAGOLTA (MARIGOT BAY REALTY), seeking a Professional Office Special Permit to use the first floor unit of a 2-unit building as both a residence and a home-based computer repair business on the property located at 18 BRIDGE STREET, Salem, MA (Residential Two-Family Zoning District).
Richard Jagolta presents his petition. He says the building is unusual in that it is zoned R2, but as far back as anyone can remember, the first floor has been used commercially with a residence above. He says it’s across the street from the 99 restaurant. He says the last tenant moved out over a year ago, it’s been sitting vacant, and he’s been advertising the rental commercial space with no takers. He says he has a prospective tenant now, but the tenant wants to primarily live there but run a computer business out of the home. He explains there will be a small amount of walk-in traffic. He says the prospective tenant is currently located on Bridge St., but he is looking for a nicer space. He says he has redone the façade, put in new windows and a chimney, and made
other renovations.
Dionne says the building looks very nice. Tsitsinos says he knows the building well – it’s always been used as some sort of commercial business.
Curran asks why this doesn’t meet the home occupation requirements – because there is foot traffic? St. Pierre explains that he is asking for a home office special permit. He could convert it to a residential 2 family by right, but to use it for both residential and commercial requires a special permit.
St. Pierre explains that the commercial use is a grandfathered use in the R2 zone, and so this would be a permanent change – it could never be only a commercial space. Debski asks if he couldn’t come back and ask for relief again. St. Pierre says no, since this would be use variance. The only other option would be to convert it to another residential unit, which would be done by right.
Dionne opens the issue up for public comment. No members of the public are present to comment, so Dionne closes the public comment portion.
Debski moves to approve the petition with four (4) standard conditions, seconded by Curran and approved 5-0 (Dionne, Curran, Debski, Tsitsinos and Harris in favor, none opposed).
Dionne asks if there is any old or new business to discuss. Debski asks about signs at the Cucurull business on Boston St. on the Peabody line. St. Pierre says he recently spoke with Tom Daniel in the Planning Department, who showed him photos of what they recently approved. He says that previously, the ZBA had denied a variance to make the sign higher, but that according to Tom Daniel, the sign complies.
Harris moves to adjourn the meeting, seconded by Tsitsinos and unanimously approved.
Meeting adjourned at 7:35 p.m.
Respectfully submitted,
Danielle McKnight
Staff Planner
Approved by the Board of Appeals 12/16/09
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