City of Salem, MA - Approved Minutes, July 21, 2010

Approved Minutes, July 21, 2010

City of Salem Zoning Board of Appeals

APPROVED Minutes of Meeting

Wednesday, July 21, 2010

A meeting of the Salem Zoning Board of Appeals (“Salem ZBA”) was held on Wednesday, July 21, 2010 in the third floor conference room at 120 Washington Street, Salem, Massachusetts at 6:30 p.m.

Those present were: Robin Stein (Chair, arriving at 6:40), Becky Curran, Beth Debski, Rick Dionne, Annie Harris (arriving 6:45), Bonnie Belair (alternate) and Jimmy Tsitsinos (alternate).

Also present were: Tom Devine, Interim Staff Planner, and Thomas St. Pierre, Building Commissioner.

Debski opens the meeting at 6:30 p.m.

Approval of minutes

The minutes of June 16, 2010 were reviewed. There being no comments, Curran moves to approve them, seconded by Debski and approved 5-0.

Request of John Bertini (Represented by Attorney George Atkins) to extend Variance and Special Permit granted for the property located at 284 Canal Street [B-2] for six (6) months to March 28, 2011.

Attorney George Atkins, attorney for the applicant, said some of the work has been done, but it is taking longer and costing more than expected.

Belair moves to extend the Variance and Special Permit to March 16, 2011 seconded by Dionne and approved 5-0 (Curran, Debski, Dionne, Belair, and Tsitsinos in favor, non opposed).

Continued from June 16, 2010: Public hearing: Petition of DILULLO ASSOC., INC. seeking a Variance to reduce the number of required parking spaces on the property located at 142 CANAL Street [I].

Dan Dilullo said the new retail building was completed a year ago and they reconstructed the old Tile Building. We are here because Family Dollar requires 57 spaces, which are never fully used and Enterprise wants space for 15 cars. These spaces are currently taken up by other tenants. We are not asking for reduction in total spaces, but only a reduction in the allocation to family dollar. We have more spaces than needed. The rental car spaces would not be constantly used and most cars are gone by noon.

Debski asks where the Family Dollar spaces are. Dilullo says the Planning Board approved 73 spaces for the right side of the site and we want to shuffle the numbers around without decreasing parking. He points out the parking configuration on the plan. Debski asks about paving and why Enterprise can’t have parking the rear. Dilullo says the rear parking area is partially paved and striped. Enterprise would like parking near them as a convenience. Belair asks if this is all one parcel. Dilullo answers affirmatively. Belair asks how 142 Canal fits in with this. Dilullo says it is not part of the application and has no parking. Curran asks if this request is being made because Enterprise wants those specific spaces. Dilullo says that is the case.

Harris asks about the spaces already used by Hertz. Dilullo says they typically use only 9 to 11 spaces at a given time. The Planning Board and Planning Department said we cannot reserve spaces on this site. Debski asks why then are you asking to reallocate. Dillullo says the Planning Board’s interpretation is that all of Family Dollar’s spaces are on the right hand side of the site. Curran says if this is all one lot and we are not reducing the number, I am unsure why we would make the variance to reallocate spaces.

St. Pierre says this was based on retail space and they got the required number of spaces. Now they want to reduce that as they are asking for 15-plus spaces for Hertz and only need 3-4. Dilullo says we would like to be able to use all the spaces as open parking. Harris asks if you already have permission to do that since you don’t label them. Dilullo says the Planning Board designated the 57 spaces near Family Dollar for Family Dollar. Harris says she doesn’t see why we would give a variance if you are not reducing the number of spaces. Dilullo says we are reducing Family Dollar’s from 57 to 35 and providing more than required for Hertz. Curran asks why it wouldn’t be the Planning Board reallocating spaces as part of their decision. St. Pierre says that by square footage the Planning Board properly allocated spaces. I told Mr. Dilullo that the desired spaces for Enterprise are allocated to Family Dollar. This complies with zoning on the approved site plan and now the request is to deviate from that. Dilullo suggests that the board could rule that all spaces are available to all tenants on the site. St. Pierre notes that if another business came in, it would need to meet the parking requirement and a use could be denied based on that. I have not observed parking problems on this site.

Curran says there is a hardship requirement for a variance and I am struggling to see what that is.

Debski opens up the issue for public comment.

John Ronan, Ward 5 Councilor, 274 Lafayette St., says he doesn’t understand why this is before the board if there is ample parking on the site for all uses. The request is for a reduction of 5 spaces and I don’t see why you would do that without showing hardship. The 85 rear spaces are not counted. My concern was that this would have made parking available to the proposed methadone clinic. There is no hardship here with the ample parking on the site. If a plan is to make way for future tenants, you should know what they are before granting a variance. The original application was for both 142 and 144 Canal St. The only change in the second application is to take out 144, which has no parking. The only was to have parking for 144 is to work something out with 142. The idea of a variance without knowing future uses makes me nervous. It is not within your jurisdiction to reallocate parking within a lot. I worry about potential offensive uses as a matter of right resulting from the variance.

Julie Pelletier, 19 Hazel St., says a representative from Little Caesars at South Salem Neighborhood Association meeting said his lease gives him 10 to 12 spaces. When the front section of the Tile Building gets a tenant, will we have to reallocate parking again? Where would the spaces go?

Becky Marcinkevich, Operations manager for Enterprise, 248 Mishawum Dr., Woburn, says Enterprise can’t get a Certificate of Occupancy (CO) until we have our parking allocated. There are only 2 spaces for us per the Planning Board. We don’t need assigned parking, but we do need 15 spaces so we can get our CO. Dionne asks if Enterprise wants its 15 spaces in the front. Marcinkevich says only some, but not all. Employees and overflow can be in the rear. Harris asks why this reallocation is needed. Dilullo says the Planning Board said we need to have parking reallocated by the ZBA to reduce Family Dollar’s requirement. Belair says the applicant seeks to reduce Family Dollar’s spaces in order to have other businesses there. Harris asks why not use the rear spaces. Belair answers that it is because it is not in the plan.

St. Pierre says the Planning Board incorporated the zoning requirement into the plan. They have 57 spaces to meet zoning in that space and also allowed for other businesses. They must comply with the parking requirement. Debski states that they comply using the parking in the rear. St. Pierre says if he were this petitioner, he would withdraw. Marcinkevich says she still can’t get a CO. Curran says we should be aware that uses could change.

Ronan says Family Dollar has its 57 spaces and this is not Family Dollar before you. But they are asking to reduce the store’s requirement by 12 spaces, which reduces the total on the site by 12. Future uses will have more parking. I don’t know why Enterprise can’t get a CO. There is ample parking for it. Dilullo says they are not reducing parking, but merely reallocating it.

Julie Pelletier, 29 Hazel St., says a future use would take on this variance. Ronan says she is right. If the variance is granted, a future tenant will have more parking. Harris remarks that a written statement of hardship is required for a variance and there does not see one with the application. Devine notes that the statement was included in the original application, distributed to members ahead of the previous meeting. Harris reads the statement aloud.

Belair says she thinks the size and shape of the lot qualifies as a hardship. I don’t have a problem with this variance. I have never seen a full lot in front of Family Dollar. I think we should do this to support business in Salem. I don’t feel the relief requested is that major. Dionne says his concern is the possibility that Family Dollar could get busier. Belair states that overflow parking can go to the rear of the site. Tsitsinos says Family Dollar has 25 spaces in its lease.

Harris says she is still confused about why this is in front of us when we just require a number of spaces per use. Belair says it is because this would reduce the number of spaces required by the ordinance. Curran says she is concerned about the future use of the building on the right hand end of the site. Why are we not dealing with this as one lot? Dilullo states that the easiest thing would be to get permission from the ZBA, Planning Board, or Building Inspector to use the parking on the site as a whole. Debski says that could work as long as it conforms with zoning. Dilullo says right now the Planning Board says we don’t have that approval. Debski notes that they ask you to repair and stripe the rear lot but don’t let you count it. Mr. Dilullo asks whether Enterprise will be able to keep its temporary CO if the request is continued. St. Pierre answers affirmatively. Dilullo requests to continue.

Belair moves to continue the request at the August 18 meeting, seconded by Dionne and approved 5-0 (Curran, Debski, Dionne, Belair, and Tsitsinos in favor, non opposed).

Public hearing: Petition of Clear Wireless, LLC seeking a Variance from the minimum rear yard requirement and a Special Permit to extend a nonconforming structure (to add a cabinet and lease area) to the property located at 52-60 Dow Street [R-3].

Anne Malone, attorney for the applicant, describes the technology proposed. The variance would be for the equipment installed at the base of the nonconforming building. It is 7 feet by 7 feet and would be 1 foot from the building, so it would extend 8 feet. It wouldn’t extend further than the existing decks. She submits an affidavit to the board showing that other sites were not viable for this equipment. Belair asks if the equipment will be fenced. Malone answers affirmatively.

James George, Site Acquisition Specialist for the Applicant, says the roof, which is hard to access now, will meet OSHA standards and be locked to prevent anyone except those with authorization to access it. Stein asks if this is an application for a variance and a special permit. St. Pierre answers affirmatively. Stein asks if they need both if they are not altering the building. St. Pierre says that is a good point. We looked at it as an addition to the building. George says one wouldn’t even call it a shed. St. Pierre says it is an equipment cabinet. Harris asks for a clarification of the plan, which Malone provides. Curran asks how we deal with HVAC. St. Pierre says we look at that as an accessory structure.

Stein opens up the issue for public comment.

No member of the public comments.

Belair says the request is reasonable as long as accommodations are made to lock it. Stein asks if the decks are above the cabinet. George says it is between the decks. The property abuts Mary Jane Park. Stein asks if only a Special Permit will suffice. St. Pierre says given reconsideration, a special permit will suffice.

Curran moves to approve the request for a Special Permit with conditions, seconded by Dionne and approved 5-0 (Stein, Curran, Debski, Harris, and Dionne in favor, non opposed).

Malone requests to withdraw without prejudice the request for a special permit.

Curran moves to approve the request to withdraw the Variance request without prejudice, seconded by Dionne and approved 5-0 (Stein, Curran, Debski, Harris, and Dionne in favor, non opposed).

Public hearing: Petition of John Januario seeking a variance from the minimum depth of side yard requirement to add an elevator to the property located at 15 Jackson Street [R-2].

John Januario, 206 Judge Rd., Lynn, representing the applicant, says the homeowners are having trouble with stairs as they age and want to maintain their quality of life. The layout of the lot and the location of the house on it make the request necessary. Stein asks if this would need a special permit. St. Pierre consults the ordinance and determines that only variance is needed. Januario states that this would not hurt neighbors. I modified this plan in response to neighbors.

Stein opens up the issue for public comment.

No member of the public comments.

St. Pierre says it is commendable to make this investment to create an accessible unit. Stein remarks that this qualifies for a hardship by the shape of the lot.

Harris moves to approve the request for a Variance with conditions, seconded by Dionne and approved 5-0 (Stein, Curran, Debski, Harris, and Dionne in favor, non opposed).

Public hearing: Petition of Mary Woodcock seeking a Special Permit to demolish and reconstruct a nonconforming single or two family structure for the property located at 24 English Street [R-2].

Mary Woodcock distributes a revised plan to the board and introduces Allan Dennis, structural engineer for the applicant. Woodcock says the request is to demolish the house and reconstruct one slightly larger. We have received a waiver of demolition delay from the Historical Commission, so if approved, we would be able to start sooner than 6 months. Woodcock submits an emails of support from Councilor Joan Lovely and abutter Chester Chalupowski. Devine distributes a letter of support from Lovely. St. Pierre consults the zoning ordinance and confirms that only a special permit is required in this case.

Woodcock notes that the dotted line on the plan is a lot line, but we own both 22 and 24 English St. and treat them as one lot. Stein says she thinks for zoning purposes this is one lot. Woodcock says new legislation will possibly allow this to be viewed as one lot. However, they are deeded as separate lots. St. Pierre says with structures on them, they are considered separate lots. Woodcock displays photographs. St. Pierre says Councilor McCarthy agrees that it is time for this building to move on. Stein says we all agree that this is appropriate relief.

Stein opens up the issue for public comment.

Janet Andersen, 30 English St. says she wants to be sure this is only for a single family, and does not allow a 2-family, as the notice seems to state. St. Pierre says that is probably taken straight from the ordinance, and it doesn’t mean that a 2-family would be allowed. Woodcock says there is no plan for a 2-family. St. Pierre states that this could be a condition. Woodcock remarks that she canvassed the neighborhood to hear neighbors’ concerns and get feedback. We are not flipping this house. We have a long term relationship with the neighborhood.

Brenda Shanley, 39 English St., asked how many people the property can accommodate. St. Pierre said the ordinance allows no more than 3 unrelated people, but there is no limit for a family. Woodcock says it is an existing 3-bedroom, and we are planning to increase the area so that a 3-person family can live comfortably there. Stein says this seems reasonable and is an improvement over what is there. Woodcock adds that they have taken special note of abutters.

Debski moves to approve the request for a Special Permit with conditions, seconded by Dionne and approved 5-0 (Stein, Curran, Debski, Harris, and Dionne in favor, non opposed).

There being no further business before the Board, Dionne moves to adjourn the meeting, seconded by Debski and approved unanimously.

Meeting adjourned at 8:20 p.m.

Respectfully Submitted,

Tom Devine

Interim Staff Planner

Approved by the Board of Appeals 7/21/10

In addition to applications before the Board and related materials, the following documents are referenced in these minutes and are available at the Department of Planning and Community Development:

Affidavit from Clear Wireless, LLC

Revised Plan for 24 English St., dated 7/20/10

Letter from Councilor Joan Lovely, dated 7/19/10

Email from Councilor Joan Lovely, dated 7/19/10

Email from Chester Chalupowski, dated 7/19/10

Decision to Extend

City of Salem Zoning Board of Appeals

Petition of JOHN BERTINI, TRUSTEE, JAB TRUST, requesting a six (6) month extension of a Variance from minimum front yard setback, and a six (6) month extension of a Special Permit for the extension of a nonconforming structure, to allow for an addition onto the restaurant on the property at 284 CANAL STREET, Salem, MA, in the Business Highway Zoning District (B-2).

August 4, 2010

George W. Atkins, III

59 Federal St.

Salem, MA 01970

Re: 284 Canal Street

Extension of Variance and Special Permit

On Wednesday, September 16, 2009, the Zoning Board of Appeals of the City of Salem voted to approve the application of John Bertini, Trustee, JAB Trust, for a Variance from minimum front yard setback and a Special Permit for the extension of a non-conforming structure, to allow for an addition onto the restaurant on the property at 284 Canal St., Salem, MA, in the Business Highway Zoning District (B-2). A Decision dated September 28, 2009 was filed with the City of Salem Clerk’s Office on September 30, 2009.

The Decision is valid for one year from the date of the Decision unless extended by the Board.

On July 21, 2010, the Salem Zoning Board of Appeals voted unanimously to extend the variances granted on September 16, 2009 for six (6) months to March 16, 2011.

A COPY OF THIS DECISION TO EXTEND HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK.

Beth Debski, Vice Chair Salem Zoning Board of Appeals

Pursuant to the Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk has been filed with the Essex South District Registry of Deeds.

August 4, 2010

Decision

Petition of MARY WOODCOCK seeking a Special Permit to demolish and reconstruct a nonconforming single family structure for the property located at 24 English Street in the Residential Two Family Zoning District [R-2].

A public hearing on the above petition was opened on July 21, 2010 pursuant to Mass General Law Ch. 40A, Sec. 11, the following Zoning Board members being present: Robin Stein, Rebecca Curran, Annie Harris, Elizabeth Debski, Rick Dionne, Bonnie Belair (alternate) and Jimmy Tsitsinos (alternate).

Petitioner seeks a Special Permit under Section 3.3.5: Nonconforming Single and Two Family Residential Structures, of the Salem Zoning Ordinance.

The Board of Appeals, after careful consideration of the evidence presented at the public hearing, and after thorough review of the Petition submitted, makes the following findings of fact:

Mary Woodcock, the owner and petitioner, represented herself at the hearing.
In a petition date-stamped June 30, 2010, the petitioner requested to demolish and reconstruct the existing non-conforming structure located at 24 English St.
Allan W. Dennis, Structural Engineer for the petitioner, submitted in writing his finding that the condition of the structure is extremely poor and that retrofit of the structure is not economically feasible.
Councilor at Large Joan Lovely submitted a letter to the Board in support of the petition. Ms. Woodcock submitted an email from Chester Chalupowski, owner of 11-13 Becket St., supporting the petition.
At the hearing, Janet Andersen, 30 English St., voiced concern that the Special Permit could allow for construction of a two-family house. Brenda Shanley, 39 English St., asked how many people the property can accommodate.

The Board of Appeal, after careful consideration of the evidence presented at the public hearing, and after thorough review of the plans and petition submitted, makes the following findings:

The proposed demolition and reconstruction of the existing non-conforming structure is not substantially more detrimental to the neighborhood than the current use, since the improvement of the property would be a benefit to the neighborhood.
In permitting such change, the Board of Appeals requires certain appropriate conditions and safeguards as noted below.

On the basis of the above findings of fact and all evidence presented at the public hearing including, but not limited to, the Plans, Documents and testimony, the Zoning Board of Appeals concludes:

A Special Permit is granted to demolish and reconstruct a nonconforming single or two family structure as shown on the submitted plans.

In consideration of the above, the Salem Board of Appeals voted five (5) in favor (Stein, Curran, Harris, Dionne and Debski), none (0) opposed, to grant the petitioner’s request for a Special Permit, subject to the following terms, conditions, and safeguards:

Petitioner shall comply with all city and state statutes, ordinances, codes and regulations.
All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner.
All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to.
Petitioner shall obtain a building permit prior to beginning any construction.
A Certificate of Occupancy is to be obtained.
Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board.
The new structure is to be a single family residence.
Petitioner shall notify abutters two (2) weeks prior to the commencement of demolition work.

Robin Stein, Chair

Salem Zoning Board of Appeals

A copy of this decision has been filed with the Planning Board and the City Clerk

Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days of filing of this decision in the office of the City Clerk. Pursuant to the Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied and is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner’s Certificate of Title.

August 4, 2010

Decision

Petition of JOHN JANUARIO seeking a Variance from the minimum depth of side yard requirement to add an elevator to the property located at 15 Jackson Street in the Residential Two Family Zoning District [R-2].

Petitioner seeks a Variance under Section 4.1.1: Table of Dimensional Requirements, of the Salem Zoning Ordinance.

The Board of Appeals, after careful consideration of the evidence presented at the public hearing, and after thorough review of the Petition submitted, makes the following findings of fact:

Petitioner John Januario represented property owner, Stanley Fudala, at the hearing.
In a petition date-stamped June 28, 2010, the petitioner requested add an elevator to the existing structure located at 15 Jackson St.
No member of the public spoke in favor or in opposition of the petition at the hearing.

The Board of Appeal, after careful consideration of the evidence presented at the public hearing, and after thorough review of the plans and petition submitted, makes the following findings:

Special conditions and circumstances exist affecting the parcel or building, which do not generally affect other land or buildings in the same district, and literal enforcement of the provisions of this ordinance would involve substantial hardship, financial or otherwise, to the appellant, since the lot is configured in such a way that the only reasonable location to add an elevator is in the location proposed.
Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning ordinance, since the proposed changes to the house create an accessible dwelling unit.
The petitioner may vary the terms of the Residential Two-Family Zoning District to alter the structure as proposed, which is consistent with the intent and purpose of the City of Salem Zoning Ordinance.
In permitting such change, the Board of Appeals requires certain appropriate conditions and safeguards as noted below.

A Variance is granted from the minimum depth of side yard requirement to add an elevator to the existing structure as shown on the submitted plans.

In consideration of the above, the Salem Board of Appeals voted five (5) in favor (Stein, Curran, Harris, Dionne and Debski), none (0) opposed, to grant the petitioner’s request for a Variance, subject to the following terms, conditions, and safeguards:

Petitioner shall comply with all city and state statutes, ordinances, codes and regulations.
All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner.
All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to.
Petitioner shall obtain a building permit prior to beginning any construction.
Exterior finishes of the new construction shall be in harmony with the existing structure.
A Certificate of Inspection is to be obtained.
Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board.
Unless this Decision expressly provides otherwise, any zoning relief granted does not empower or authorize the Petitioner to demolish or reconstruct the structure(s) located on the subject property to an extent of more than fifty percent (50%) of its floor area or more than fifty percent (50%) of its replacement cost at the time of destruction. If the structure is demolished by any means to an extent of more than fifty percent (50%) of its replacement cost or more than fifty percent (50%) of its floor area at the time of destruction, it shall not be reconstructed except in conformity with the provisions of the Ordinance.

Robin Stein, Chair

Salem Zoning Board of Appeals

A copy of this decision has been filed with the Planning Board and the City Clerk

August 4, 2010

Decision

Petition of CLEAR WIRELESS, LLC seeking a Variance from the minimum depth of rear yard requirement and a Special Permit to extend a nonconforming structure to add a cabinet and lease area to the multi-family apartment building on the property located at 52-60 DOW STREET in the Residential Multi-Family Zoning District [R-3].

Petitioner seeks a Variance under Section 3.3.4: Variance Required, and a Special Permit under Section 3.3.3: Nonconforming Structures, of the Salem Zoning Ordinance.

The Board of Appeals, after careful consideration of the evidence presented at the public hearing, and after thorough review of the Petition submitted, makes the following findings of fact:

Attorney Anne Malone represented the petitioner at the hearing. James George, Site Acquisition Specialist for the petitioner, was also present at the hearing.
In a petition date-stamped June 29, 2010, the petitioner requested to add a cabinet to the existing non-conforming structure located at 52-60 Dow St. The petitioner plans to lease an area surrounding the cabinet from the property owners.
Property owner Stephen Wolfberg submitted a Letter of Authorization permitting the petitioner to apply for any necessary zoning petitions, permits or any other approvals which are necessary for the placement of a wireless communications facility within a portion of the property.
At the hearing, no member of the public spoke in favor or in opposition to the petition.

The Board of Appeal, after careful consideration of the evidence presented at the public hearing, and after thorough review of the plans and petition submitted, makes the following findings:

At the hearing, Building Commissioner Tom St. Pierre determined upon reconsideration that a Variance is not necessary for the proposed cabinet and lease area and that a Special Permit to extend the existing nonconforming structure would suffice. The board granted the petitioner’s request to withdraw without prejudice the request for a Variance, by a vote of 5-0.
The proposed addition of a cabinet and lease area to the existing non-conforming structure is not substantially more detrimental to the neighborhood than the current use, since it extends less from the structure than the structure’s existing decks.
In permitting such change, the Board of Appeals requires certain appropriate conditions and safeguards as noted below.

A Special Permit is granted to extend the existing non-conforming structure by adding a cabinet and lease area as shown on the submitted plans.

Petitioner shall comply with all city and state statutes, ordinances, codes and regulations.
All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner.
All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to.
Petitioner shall obtain a building permit prior to beginning any construction.
A Certificate of Inspection is to be obtained.
Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board.

Robin Stein, Chair

Salem Zoning Board of Appeals

A copy of this decision has been filed with the Planning Board and the City Clerk