City of Salem Zoning Board of Appeals
Minutes of Meeting
Wednesday, March 17, 2010
A meeting of the Salem Zoning Board of Appeals (“Salem ZBA”) was held on Wednesday, March 17, 2010 in the third floor conference room at 120 Washington Street, Salem, Massachusetts at 7:30 p.m.
Those present were: Robin Stein (Chair), Beth Debski, Bonnie Belair (alternate) and Rick Dionne. Those absent were: Annie Harris, Rebecca Curran, and Jimmy Tsitsinos (alternate).
Also present were: Danielle McKnight, Staff Planner, and Thomas St. Pierre, Building Commissioner.
Stein opens the meeting at 7:30 p.m.
Approval of Minutes
Stein suggests that approval of the minutes of 3/1/10 be postponed to the next month’s meeting, since not enough members are present from the last meeting to vote.
Stein announces that since there are only four members in attendance tonight, any petition would need a unanimous vote to pass, so if any applicant wished to continue to the next meeting, they could do so. No applicants indicate that they wished to continue.
Stein mentions that April 21, the date of the next scheduled meeting, is a difficult week for some; the other members agree that this meeting date should be moved to April 14. McKnight says she will check with the other members and post a change notice.
McKnight also announces that the 22 Eden St. petition can’t go forward tonight, since not enough members who are eligible to vote on the item are present. Stein says this will be heard at April’s meeting.
Old/New Business – Request of PAUL FERRAGAMO (represented by Attorney George Atkins) to extend the Variances granted for the property located at 405-419 HIGHLAND AVENUE for six (6) months to November 3, 2010.
Atty George Atkins, representing the applicant, says the Planning Board approval of this project was just received in February, so he is asking for 6 month extension for acting on the Variances previously granted. Stein asks the Board if they have any questions; there are none. Debski moves to grant the requested extension of the Variances to November 3, 2010, seconded by Dionne and unanimously approved.
Petition of MICHAEL SHEA (represented by Attorney George Atkins), seeking a Special Permit under Section 3.1.2 of the Salem Zoning Ordinance in order to convert a historic carriage house into one dwelling unit on the property located at 31 WASHINGTON SQUARE NORTH, Salem, MA (R-2).
Atty George Atkins presents the petition on behalf of Mr. Shea. He says Shea has an agreement with the current owner to purchase the principal dwelling and historic carriage house at the rear of the dwelling; the sale is conditioned, among other things, on relief requested from this Board. He introduces Richard Griffin, the architect who designed the changes, and Mr. Shea. Atty Atkins says the carriage house has deteriorated, and the proposal is to make it a single family home. He says the lot is large and there is parking provided for carriage house and principal dwelling. He says abutters have asked if there will be any subdivision of the property; there will not, it will remain as shown on the plot plan. He says if there were any effort to subdivide, the petitioner would need to
come back to the ZBA, and also would have to come to Planning Board. He says the project has been before the Historical Commission and they have approved it – he shows the Board his Certificate of Non-Applicability letter. Concerns of the Historical Commission included the clock on current building, which currently does not work. They have agreed to maintain the clock, but they may not be able to make it operational. Also, he says some neighbors wanted wooden shutters on both buildings – the shutters have been stored in the carriage house. He says Mr. Shea has obtained signatures from abutters with regard to proposal, and shares these with the Board.
Stein asks if the Board has any questions.
Atty Atkins adds that of the exterior changes proposed, none change the footprint.
Stein states the petition Atty Atkins gave her has signatures from four abutters in support of the project.
Stein opens the issue up for public comment.
At-large Councillor Steven Pinto, 55 Columbus Ave., speaks in favor of the petition.
Martha Chayet, 26 Winter Street, has a question about the lot – right now it’s a 3 family, and this would now be four units. She asks if the remaining land could change its use without coming to the Board? As part of his application, would Mr. Shea be willing to say this property would be limited to 4 units?
Stein: there’s nothing in our zoning right now to allow them to increase number of units by right beyond four on this lot. Any other use would have to come back for review.
St. Pierre adds that this is a carriage house special permit under the old definition, even though it didn’t carry through in the recodified document. The old zoning specifically said the carriage house could not be separated from main lot.
Stein: The minimum lot area requirement in this zone is 15,000, so they could not further increase the number of units without relief. Atkins points out that you can only have one use on the lot.
Chayet asks what exactly the current use is. Stein says the current use is a 3 family house. Chayet asks if there could be any other use on this land, such as boat storage, etc.
St. Pierre: There are city ordinances regarding the storage of recreational vehicles. The owner can use it for what’s allowed currently. Any boats have to be registered to someone living there. Anything that’s lawful under zoning, it can be used for. As Robin says, this can only be used residentially. Any new parking has to be auxiliary to the residences.
Chayet says she loves the fact that the property will get attention, and it’s a great plan. She is supportive of the project.
There being no further comment from the public, Stein closes public comment portion.
Belair: Was this before us before for any other relief previously?
Atkins is unsure, but does not think there has been any decision issued since 1969.
Belair: No, I recall more recently that someone was going to do work on the main house and live there temporarily.
Stein: There was another project like that, but a different property.
Atkins: I didn’t see anything else in the files.
Stein says the reason we allow this is to preserve carriage houses. She thinks it’s a good plan, a good project, and consistent with the zoning bylaw. She says it’s not putting more cars on street, and for all these reasons, it’s not more detrimental to neighborhood. She says it’s a good sized lot, and the neighborhood can sustain the density.
Debski says it’s a great plan, the Board is familiar with the applicant’s other work on Boston and Essex Streets, and these are also great projects.
There being no further public comments, Stein closes the public comment portion.
Belair moves to approve the petition with nine (9) standard conditions, seconded by Stein, and passed 4-0 (Stein, Belair, Debski and Dionne in favor, none opposed).
Petition of 315-317 ESSEX STREET SALEM LLC (represented by Attorney George Atkins), seeking a Special Permit to change the current nonconforming uses in the building (13-room lodging house and office space) to another nonconforming use (six two-bedroom residential units), and seeking a Variance from height (number of stories) to construct two dormers on the property located at 315-317 ESSEX STREET, Salem, MA (R-2).
Atty Atkins says this property has been before the Board more than once. He represents Raymond Young, manager of an LLC that has this property under agreement. According to the agreement, the sale is dependent on the decision of Board. The building was once known as Gainsborough Studios, and there were a number of commercial uses on the first floor. Upstairs was a 13 room lodging house. He says he came before the Board in April of 2008 to change the use on the first floor from a photography studio to offices. Within a year, he says the owner couldn’t find tenants, so they came back in 2009 and requested to change the office to four units on the first floor. The Board reduced the number to 3 and granted the petition. Atty Atkins says in those cases, the lodging house was
upstairs. That decision was appealed by abutters. He says they have reached what they think is an agreement to resolve all of that. The petition tonight is to use the 3 floors for 6 residential condominium units. He says if the Board grants this approval, the current occupants would be out of the building, the owner would return his lodging license to the city, and building would be renovated as shown on plans. He says the project’s architect could not be here, but they do have an approval from the Historical Commission; he passes out copies to the Board. He says the Historical Commission approved the project with minor matters, listed in the approval, which they need to come back with.
Atty Atkins says on the second page of plans, 10 parking spaces are shown, and the requirement is for 9. There will be brick pavers on either side, 6 inch granite curbs, a landscape buffer to the rear and west, and another from the parking area to the building, and decorative fencing and landscaping to the east. The entry will be a replica of a historic entryway typical of this district. He also added that the window detail and right entryway will be historically accurate. He says that eventually, if they get the Board’s approval, a reconstruction would take place, there will be no more lodging house, no more commercial uses, and the building will be more in keeping with the R2 neighborhood. He says there will be no change to the footprint of the building at all, just the façade
and dormers, which the building inspector determined give the building a full story, not half.
Debski asks if access to parking is impacted; Young says no. The Board has no further questions.
Stein opens the issue up for public comment.
John Carr, 9 North St., says he is here on behalf of several neighbors – all plaintiffs who appealed the last Special Permit which would have allowed apartments on the first floor. He says they have been working with Mr. Young and Mr. Atkins, and this has resulted in the application now before the Board. He says the appellants will withdraw the appeal if this is passed. He says this is would be converting one nonconforming use to a new, less detrimental use. He notes that they also support the requested Variance. He says they have a technical conflict of interest – Morris Schopf, an appellant, is also the architect for the new petition. Mr. Carr says this is a clear conflict, but the best thing for the property.
Ted Richard, 10 Summer St., speaks in support of the petition.
Councillor Jean Pelletier, Ward 3, says he supported the last petitioner with great reservations, but wants to thank Mr. Young for bringing this forward – it is a much better project for neighborhood.
There being no further public comments, Stein closes the public comment portion of the hearing.
Belair: I’ve been strongly opposed to previous petitions because I felt they were too dense. I still think this is too dense, but this is attractive, and actually will improve the neighborhood and provide enough parking, so taking everything into consideration, I’m changing mind and considering it.
Debski: I liked last petition, but this is much better for the neighborhood, and it will be nice to see the building all residential. I love the front.
Dionne: I’m familiar with Mr. Young’s work – it’s very good, I definitely support the petition. This will fit into the neighborhood.
Stein says it’s consistent with the neighborhood and zoning bylaws. She asks Atkins for clarification – if the request here is to go from office to the new proposed use – what does this do to the permit that’s out there, under appeal? Atkins says this would take precedence over the previous special permits, and therefore would be the controlling set of plans and decisions. Stein says she is going to put language to that effect in the decision so that they won’t need to come back here to clean anything up. She just wants to be sure there are no alternatives to the plan they are approving tonight.
Debski moves to approve the petition with eight (8) standard conditions, seconded by Stein, and approved 4-0 (Debski, Stein, Dionne and Belair in favor, none opposed).
Petition of MAUREEN GOODRICH seeking Variances from minimum lot area, side yard setback and frontage on 60 PROCTOR STREET, in order to move the property line between 60 PROCTOR STREET and 58 PROCTOR STREET, Salem, MA (R-1). No construction is proposed.
Maureen Goodrich presents her petition. She says her brother owns the lot next door. She says she and her brother want to change the property line, moving it closer to 60 Proctor St. – the driveway has been there for many years. At one time both lots were her father’s. She says she is not doing any construction.
Stein says the issue is that his lot is going to get smaller and will have a setback issue. 58 Proctor won’t have any problems. 60 needs the relief. Belair notes that the lot is already nonconforming. Dionne notes the two properties and the buildings on them have been there a long time. The Board has no further questions.
Stein opens the issue up for public comment.
Tim Homan, speaking on behalf of Dorothy Flynn, 10 Looney Ave., speaks in opposition to the project. He says the Sheas of 12 Looney Ave. were also going to be there but were unable to because of tonight’s meeting time change.
He says he is opposed to any variance that would allow any change in lot size. He says the current boundary doesn’t prevent Goodrich from selling her property. He says she wants to maximize her property value. He calls the structure at #60, which Goodrich’s father put up, a “monstrosity.” He shows picture of this structure, with a living unit above a garage. He says it has a basement unit which is currently occupied, he assumes by renters, and there is a note on the sketch that it’s not to be rented because of water damage.
Stein: I have a feeling you have issues with property, but how does changing the lot line change anything?
Homan: Because the lot line allowed it built in the first place, and we want to go back. Now, she wants to sell the property and maximize her value. Dorothy’s value (of 10 Looney) was diminished.
Stein: Ms. Goodrich has a right to sell her property.
Debski indicates the plans and asks if this area is open, and what is behind the parking?
Goodrich says it’s grass, a yard. Debski asks if she could put cars in her backyard. Goodrich says she doesn’t think so, there’s a wall and patio.
Stein: all you really need is this rectangle, you don’t need whole lot line?
Belair: it’s still a minor change, that lot is 800 square feet less anyway.
Stein asks if the structure at #60 needed relief to be built; St Pierre says yes, it got relief.
Stein says the argument has been made that it could have been built differently – but relief was granted for this.
Goodrich says she’s not doing this just to increase the property’s value.
Belair: You have every right to sell your property.
Stein notes the natural topography of the land, and how steeply it slopes down.
St Pierre says he is troubled by the info brought forward about #60, but this is an inopportune time to bring it up. He would investigate a complaint of a violation at any time. Homan says there’s a violation.
Stein: You need to follow up with Tom St. Pierre on violations. What’s before us is a minimal change, it won’t change anything on the ground.
St. Pierre and Stein both confirm that one could not build anything more as of right in the setback without relief.
Debski notes that it’s minimal relief is being requested.
Stein agrees that it’s minimal, says the topography of the property supports it, given the grade sloping down, and the location of the retaining wall seems like the natural property line anyway. She does not have a problem granting the petition.
Belair says both lots are nonconforming, and they would need to come back for anything new anyway. She also doesn’t have problem with the petition.
Stein says she understands there may be other issues with the property at #60, but these are issues for St. Pierre to follow up on and are not relevant to what’s before the Board.
Dionne moves to approve with three (3) standard conditions, per the plans submitted, seconded by Stein, and approved 4-0 (Stein, Dionne, Belair and Debski in favor, none opposed).
Petition of DIONISIO and 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 single-family house on the property located at 12 WILLSON STREET, Salem, MA (B1) to a two-family house, and to allow for the addition of an emergency exit at the rear or the house.
Attorney Steven Zalotas represents the petitioners. He says this project was before the Board in November 2009, and was withdrawn without prejudice. He says they want to construct a second means of egress from second floor down to a parking area behind the building – this would allow any potential new tenants from the upstairs second unit to exit – with the Board’s approval for second unit. He says this is a unique property; it was moved from 12 Boston St. to 12 Willson St. At that time, variances were granted by this Board. He says they’re proposing that there is a substantial hardship for the Cabreras and other potential future owners – it’s a large building, with 2 large floors with full basement. In order to properly maintain the building, he
says it requires a second unit. There is currently no second unit income coming in. Also, he says this is any different from many houses in this neighborhood – there are four other 2-family homes, all on the same or smaller lot sizes as the Cabrera’s home. He says there are also other single family homes, many of whom have signed a petition in favor of the proposal, and presents it to the Board. He says it’s signed by 60 of neighbors in the immediate neighborhood that agree with this petition and have no problem with it. Several are on Willson St., some on Horton, abutting the back side of property. He says a resident of 5 Horton couldn’t be here, but he has a letter from the resident, which Atty Zalotas gives to Board. He explains the dimensional relief required for the back stair.
Atty Zalotas says the petition requests relief according to the residential dimensions required by R3, since it’s a residence in the B1 zone. He says according to St. Pierre, the intent of the zoning is to make any residential property in B1,which this is in, comply with R3 zoning regs. He says that next to the Cabreras’ home, there is a day care and an auto body shop. He says there are many businesses typical of the B1 zone nearby, bars, etc., and that this wouldn’t change the look of the neighborhood.
Debski: you mentioned the second unit is in place?
Zalotas says it is.
Debski asks what is in it.
Zalotas says there is a bathroom, which looks several years old, and also there before the Cabreras owned it, is a kitchen – originally this was a laundry facility, countertop and cabinets. He says the Cabreras have refinished and upgraded the cabinets, changed the sink, and when they upgraded the downstairs appliances, they brought the old ones upstairs. He apologizes that this work was done without permits. He says the Cabreras didn’t know they were needed. He says they are willing to have inspectors come in and to pull the permits.
Debski asks when this work was done; Zalotas says in November.
Debski: So they lied to us when they came in in November about there being a second unit. They need more than permits – they need permission to put in a second unit. I don’t appreciate you coming back asking for relief after the fact. I think you’re wasting everyone’s time being here. I’m very opposed.
Zalotas says the appliances were brought in after November’s meeting.
Debski says they didn’t have permission to do that.
Stein asks St. Pierre if this is a full unit.
St. Pierre says he has not been in the building yet.
Stein says there is currently only one egress. Also, she is still struggling with the R3/B1 issue.
St. Pierre explains that the zoning for residential in B1 was worded subject to R3 restrictions. But the recodified document isn’t clear on that. It’s on the list of zoning items to be corrected since the re-codification.
Stein says that density-wise, in R3, you could have 2 units if you had a 7000 SF lot. She says this is not a use issue, but a density one.
Dionne notes the dimensions and says it’s not exactly a large house.
Zalotas says he brings up the size because several other houses in the neighborhood are almost identical.
Belair asks what the hardship is.
Zalotas says as the house exists right now, the Cabreras have no way of using the second floor, the property will be struggling financially with no upstairs tenant, and they’ll have difficulty making payments on the house.
Belair: From my perspective, that doesn’t meet the standard for hardship – they knew what they were buying – a single-family house.
Zalotas cites Joseph v. Brookline in support of his hardship argument.
Stein says that generally speaking, she doesn’t have a problem with the dimensional relief – but she can sympathize with members of the board who feel they were misled.
Zalotas says the Cabreras didn’t mean to mislead the Board.
Debski says their withdrawal was done with the Board’s recommendation – they consulted with St. Pierre, they knew about the conditions on their property. She says she can’t support the request.
Zalotas says the written condition in the Planning Board decision at the time the house was moved was “a residential use” – the SJC interpreted that to mean single family – only with records of the court’s decision could the Cabreras have known it restricted to a one family.
Dionne: so they thought they were buying a 2 family?
Zalotas: B1 zoning was what they thought the use was for.
Stein opens the issue up for public comment.
Ward 3 Councillor Jean Pelletier says he was around when the house was moved – the house had wiring on the first and second floors because it was used for a business on Boston St. He says in reading the court’s decision, there is some evidence that “a residential use” was not clear, and that ZBA should have restricted it to a one-family in their decision; though this language was “not dispositive.” He said the Board could decide tonight what should be done. He says the old language referred to the use as a business versus residential, not a single or 2 family. He supports the petition.
Board members ask for records from the previous Planning Board and ZBA decisions; McKnight leaves the room to get them and returns.
Stein: The appeals court says there’s nothing in the decision that says it CAN’T be more than one family, but they still need to come in for the relief. The court has interpreted that we have not, to this date, limited the use to a single family, and also says the owner is not entitled to use as a two-family. If a two-family house is allowed and can get proper relief, they can do it. I’m going with the court’s decision – that they’re subject to all present dimensional requirements – if they don’t meet them, they need relief.
At-large Councillor Steven Pinto agrees with Belair that the hardship issue is nonexistent; he says a hardship can’t be justified based on finances. He does not think the dimensional relief requested is reasonable – he thinks the lot is too small and the house is too small at 2000 square feet. He opposes, thinks it’s bad for the neighborhood and for property. He also says that they’ve gone forward and done the second unit, and they’ve not been straightforward. He says these issues were addressed at the last meeting.
Stavros Moutsoulas, 11 Willson St., says he likes his neighbor, but business is business, and he says his lot is much bigger than the house across the street, contrary to what Atty Zalotas stated. He has concerns about parking, especially during snow bans. Also, he says it’s a residential neighborhood – the businesses referred to were done a long time ago. His house is 3 family, was grandfathered, and was built a long time ago. He refers to the day care center in neighborhood and asks if it is an in-home day care, and is this allowed? St. Pierre says yes, it is an exempt use. Moutslas addresses Councillor Pelletier – the applicant says the building was wired for commercial when they moved it, so now we have to let them do a two family? Wiring has nothing to do
with it. He says that every time previous owners have come in to have this converted to a 2-family, they have been denied.
Alma Pelletier, 3 Horton St., speaks in opposition. She says there have been violations with too much paving, and she now has water in her yard. She says there have been contractors there, in and out. Also, the Cabreras have shoveled snow against her fence. She also says the quality of life in the area has decreased. She shows the Board pictures showing damage to her property from water.
There being no further public comment, Stein closes the public comment portion.
Zalotas says the Cabreras were within their rights to pave and shovel snow. Also, he says the land area of 11 Willson is identical to 12 Willson and produces the Assessor’s records. He says the snow shown in pictures was put up to fence line, it was never shifted to Pelletier’s property. Stein says the snow and paving are private issues not relevant to the Board.
Dionne says he understands the Cabreras’ situation, and can appreciate what they are trying to do – he’s not really opposed to it.
Stein says there have been issues along the way that put this in a negative light, and she doesn’t agree with Councillor Pinto that 2000 SF is a small house. She doesn’t think as a matter of law that the city has prohibited this from being used as a 2 family. She doesn’t think the request is out of line, though the hardship is not as high a standard as usual. She is torn, but doesn’t have a huge problem with granting the relief.
Debski says she has shared her views.
Belair says she is torn; she sympathizes with everyone’s financial hardship, but just because an owner wants to divide up their house isn’t a good reason – she’d be opposed.
Debski moves to approve petition with 6 standard conditions, Seconded by Stein. The Board votes 2 in favor (Stein, Dionne) and 2 opposed (Belair, Debski). The petition fails.
There being no further business before the Board, Dionne moves to adjourn the meeting, seconded by Stein and unanimously approved.
Respectfully submitted,
Danielle McKnight, Staff Planner
Approved by the Board of Appeals 4/14/10
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