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Approved Minutes 7-18-12
City of Salem Zoning Board of Appeals
Minutes of Meeting
Wednesday, July 18, 2012

A meeting of the Salem Zoning Board of Appeals (“Salem ZBA”) was held on Wednesday, July 18, 2012 in the third floor conference room of 120 Washington St., Salem, Massachusetts at 6:30 p.m.

Those present were: Rebecca Curran (Chair), Annie Harris, Richard Dionne (arrived 7:15 p.m.), Bonnie Belair (alternate) and Jimmy Tsitsinos (alternate).  Those absent were: Mike Duffy and Jamie Metsch.  Also present were Thomas St. Pierre, Director of Inspectional Services, and Danielle McKnight, Staff Planner.  

Ms. Curran opens the meeting at 6:45 p.m.

Ms. Curran announces the Board will be going into Executive Session to discuss the following items:

  • Discussion of proposed settlement: 162 Federal Street
  • Discussion of litigation: 10 White Street & 57 Rear Turner St.
Ms. Curran says the Board finds that it would be detrimental to discuss these matters in open session.  Ms. Harris moves to go into Executive Session, seconded by Mr. Tsitsinos and approved 4-0 (Ms. Harris, Ms. Curran, Ms. Belair and Mr. Tsitsinos in favor, none opposed).  The Board leaves the room for its Executive Session at 6:45 p.m. and returns at 7:10 p.m.

Ms. Harris moves to resume the regular session, seconded Mr. Tsitsinos, and approved (Mr. Tsitsinos, Ms. Belair, Ms. Harris and Ms. Curran in favor, none opposed).

Approval of Minutes

The draft minutes of 7/18/12 are reviewed with no comments.  Ms. Harris moves to approve them as written, seconded by Mr. Tsitsinos 3-0 (Mr. Tsitsinos, Ms. Curran and Ms. Harris in favor; none opposed; Ms. Belair abstaining).  

Petition of DUARTE MACHADO requesting a Special Permit to expand a nonconforming two-family home in order to construct a 15’x25’ one-story addition on the property located at 14 ALBION ST (R-1 Zoning District).

Mr. St. Pierre notes that this applicant requested to appear on the August agenda, not July.  Ms. Belair moves to continue the matter with no evidence taken to August 15, 2012, seconded by Mr. Tsitsinos and approved 4-0 (Mr. Tsitsinos, Ms. Belair, Ms. Curran and Ms. Harris in favor, none opposed).  

Mr. Dionne enters at 7:15 p.m.

Petition of LESLIE BYRNE, requesting a Special Permit under Sec. 3.3.5 of the Salem Zoning Ordinance to alter and extend a nonconforming single-family house on the property located at 16 SAUNDERS ST, Salem, MA (R2 Zoning District).  

Documents & Exhibitions:

  • Application date-stamped 3/5/12 and accompanying materials
  • Written statement read and submitted by Leslie Byrne, dated 7/18/12
  • Written statement with photographs submitted by Leslie Byrne, no date
  • Solar model, solar azimuth and solar elevations, dated 6/18/12, submitted by Attorney John Carr
  • Plot Plan of Land, 16 Saunders St., with proposed addition, dated 5/22/09
  • Biography of Steven Ozahowski, SRA, Certified Real Estate Appraiser
  • Petition in opposition to the application with signatures
  • Quitclaim Deed of 19 Dolloff Avenue, Beverly, MA 01915
  • Declaration of Homestead for 19 Dolloff Ave, Beverly, MA 01915, for Leslie Byrne
  • Leslie Byrne Residence: Additions & Renovations, 16 Saunders St., Salem MA, dated 5/2012
Ms. Byrne presents her petition.  She says the proposal remains within the current footprint and would extend to 2 ½ stories.  She has had this redesigned – the Board had requested the height reduction and addition of dormers, which she has now done.  She says the expansion of her house will add to value of neighborhood and is consistent with other houses surrounding.  She hands the Board copy of her statement.  

She addresses concerns previously brought up by neighbors.  Regarding fire threat, she says that part of Salem’s character/charm is its older neighborhoods, where houses are close together.  The building will be done up to modern codes/materials.  She says the new addition is in the same character and scale as the rest of the neighborhood.  She compares her structure to the neighbors at 14 Saunders St., noting a nonconforming/illegal third floor dormer, which she says impacts her property value.  She submits a packet with a narrative and photos.  Ms. Byrne says she had not opposed the 2 house development at the end of the street, as had been stated.  

Ms. Curran notes that Ms. Byrne has addressed the issues that have come up; can she explain the new structure – how tall is it?  Ms. Byrne says it’s greatly reduced in height from what she previously proposed.  Ms. Curran notes that she eliminated the third floor.  How much square footage is being added to the 660 SF existing?  She says it’s roughly an additional 700 SF.  Ms. Harris says she is probably adding about 1,000 SF.  

Ms. Harris asks if she is keeping the existing structure.  She says she is keeping the whole existing structure without the bumpouts.  

Ms. Curran opens the issue up for public comment.

George Fallon, 36 March St., says he developed the two lots at the end of the street.  He is here to clarify – he’s told part of the equation here is Ms. Byrne had a deal with him siting the houses at the end of the street – that is not true.  He says he hired a company that specialized in modeling 3d sight lines.  He says he paid a lot to have every property added to the visual so they could see the least offensive position for all the houses.  This was done for everyone in view of the two lots.  The computer model showed them where to put the houses, along with considering the zoning.  He says this was not done with regard to any one individual’s input.  

John Carr, representing the McKinnons at 14 Saunders St., submits a information in opposition to the petition.  He says Ms. Byrne has a home in Beverly and had not disclosed this.  He presents light and air analyses shown on two schematic drawings.  He says he appreciates Ms. Byrne didn’t have a deal with Mr. Fallon for the siting of those two houses, but she was considered.  He says the McKinnon’s got a building permit in 1981 to raise the slope of their roof.  He says Ms. Byrne bought her house after this.  He says there is room to expand at the rear but she doesn’t want to.  He says the house is being rented now.  He says the project will adversely affect the McKinnon’s light and air.  He says every single neighbor on the street and ward councilor Michael Sosnowski is opposed and has signed his petition.

Steve Ozahowski, SRA, passes out a resume and real estate appraisal license.  He says this project will lower the property value of the abutter.  He says properties with river views are more marketable.  If he were doing an appraisal of the property, compared to one with views, he would adjust the value down 5-10%.  

Ward 2 Councillor Michael Sosnowski, 17 Collins St., says he supports the McKinnons.  His main concern is that all the neighbors oppose it.  He concurs with what Mr. Carr has said.  

Elizabeth McKinnon, 14 Saunders St., says she had a building permit for the addition on her house.  She gives a history of Ms. Byrne’s previous petition, which the McKinnon’s appealed.  She says the court had asked Ms. Byrne to come up with plans they could agree on, but she did not contact them within the required 90 days.  She says the new plans she came to the Board with in March were not sufficiently changed.  She wants to know what it would have cost to expand horizontally, which Ms. Byrne has said would be too expensive.  She disagrees with Mr. Fallon’s claim that his houses were not situated to preserve Ms. Byrne’s view.  She says the houses at 14 and 16 Saunders are 9 feet apart.  She says the revised plan now has a porch, which she objects to.  

Arthur Sargent, Councillor at Large, 8 Maple Ave., asks the Board to keep to the “substantially detrimental” standard for issuance of a special permit.  He says there is seniority in the neighborhood that should be considered.

George Fallon says everyone with a view was considered, including Ms. Byrne.  There was no special deal just for her.  

Ms. Byrne says the McKinnons have plenty of sunlight and privacy – she has been in their shadow and in their view for years.  She says the deck can be removed.  She did buy a house in Beverly.  She says she plans on selling the property and putting money into the Saunders St. house.  She says she planned on building onto the Saunders St. property when she bought it.  If she expands to the back, she will have no yard and there would be even less privacy for the McKinnons.  

Tom McKinnon, 14 Saunders St., opposes the petition.  He says it will affect his light, air and value.  

Melanie McKinnon, 14 Saunders St., is concerned about lessened property values.  She says the addition will be intrusive.

John Carr says last time he submitted a portion of the zoning ordinance that addresses preservation of property value, light and air, and calls this to the Board’s attention.

Ms. Belair asks Ms. Byrne if she spoke with the McKinnons after last hearing.  She says no, they have been very hostile toward her.  Ms. Belair says she understands, and sympathizes with the small house; she says the Board encouraged her to try to meet with the neighbors to try to work this out.  She says Ms. Byrne did herself a disservice by not attempting it.  Ms. Byrne responds that she has left the communication to the attorneys.  She regrets that has been the case, but she honestly feels they will oppose any addition at all that will block their kitchen window view.  In all communication that was brought forward, that was communicated to her.  She says they avoid her and don’t speak to her.  

Mr. Carr says he has made numerous written requests to speak with her about this.

Ms. Curran says she appreciates this is a very small house on very small lot, and appreciates Ms. Byrne attempted to respond to some issues the Board had.  She still thinks this is a very small lot and the houses are close together; this is not a property that is allowed to expand by right.  We look at detriment to abutting properties.  She says Ms. Byrne is so close she has to keep your shades down.  She’s not sure it’s appropriate for an addition, based on where it is; she knows there are other similar properties built at this time.  It’s not an addition going up years later.  She says the shadow study is interesting and revealing – it will impact light and air.  Ms. Byrne said herself it is very close.  

Mr. Tsitsinos is not in favor; he says all the neighbors oppose.  He feels there has not been an adequate response, and Ms. Byrne is not even living there.

Ms. Belair moves to approve the petition with 8 standard conditions, seconded by Mr. Dionne and denied 5-0 (Ms. Belair, Mr. Tsitsinos, Ms. Curran, Ms. Harris and Mr. Dionne opposed, none in favor).  The decision is hereby incorporated as part of these minutes.

Public hearing: Petition of MARTINE BRACKE and SERGE GREGOIRE requesting a home occupation Special Permit in order to operate a wellness/nutrition/reiki business from the residence at 3 FREEMAN Mr. Dionne (R-1 Zoning District).

Documents & Exhibitions:

  • Application date-stamped 7/2/12 and accompanying materials
  • Photographs of the property submitted at the meeting
  • Letter from Paulette Puleo, 5 Freeman Rd., dated 7/18/12
Serge Gregoire presents the petition.  He says he and Ms. Bracke, his wife, have recently purchased the house.  He says his wife is in a wheelchair and has special needs; it is difficult for her to get around.  They tried to find a house he could run a business from and could not; they decided instead to buy a house perfect for his wife.  He describes his wellness business, discussing how he meets with clients in person, over the phone and by Skype.  He works part time in Boston; Freeman Rd. would be a satellite.  Not much traffic is expected, 1-2 clients daily, sometimes more or less.  He says he understands the concerns of his neighbors at 5 Freeman Rd.  He notes that a lot of people turn onto Freeman, realize it’s a dead end, and use their driveway to turn around – this happens 3-4 times daily.  This is a huge problem.  He says this is more of a concern than his clients.  

Ms. Curran asks about the number of clients he sees in his Boston office - 12-18 weekly. Mr. Gregoire says fewer would be seen in Salem.  Hours would be Monday through Friday only.   Ms. Belair asks if they see people in evening;  yes, 7 at latest.  Ms. Curran – 1 at time?  Yes, for 30-90 minutes.  Ms. Harris – not on weekends?  Mr. Gregoire says sometimes if they have emergencies, but they generally do not work on weekends.  He says no exterior changes are proposed.  Ms. Curran asks about the size of the driveway – about 30x60?  Mr. Gregoire says it’s bigger he shares the driveway with 5 Freeman Rd.  He shows photos of the driveway and property.  Ms. Harris – this is the same neighbor who is objecting?  Yes.  Ms. Harris – you have 5 or 6 spaces total?  Mr. Gregoire – no, only on our side.  He notes the house will be ADA compliant.  
Ms. Curran opens up the issue for public comment.

Ms. Curran reads into the record a letter from Paulette Puleo, 3 Freeman Rd., in opposition.  

Martine Bracke, 3 Freeman Rd., says it was difficult to find an accessible house for her.  She hopes to stay there forever.  She wants to be part of the neighborhood.  She says she wants to be active in the neighborhood.  

Charles Puleo, 5 Freeman Rd., says he appreciates that the house was sold and they are fixing it up.  He says the shared driveway does accommodate many vehicles.  However, he is concerned about business activity where there wasn’t any before.  He feels downtown would be more appropriate.  He is not opposed to having nice neighbors.  He runs a business on Highland Ave., but doesn’t bring it home; nor do their neighbors.  He refers to the Home Occupation Special Permit provisions of the Zoning Ordinance, saying they shall utilize no more than 25% of gross floor area.  He says this house has 1600 SF finished floor area with an unfinished attic.  He is concerned that this could grow to a much larger proportion of the house; he does not want to have to monitor this.  By right they could have an employee, and parking is an issue.  He says when a Special Permit is granted, it stays with the property, and another buyer could run a similar business.  He says this decision will change the characteristic of neighborhood forever.  He refers to the criteria for issuance of a Special Permit, and says this will impact his property value.  The houses on the street are all very well kept.  He says the petitioner is asking people to accept less for their homes.  He says it’s great to have new neighbors, but he doesn’t feel this is the right location.  He says they filed for the Special Permit prior to closing on the house, but they should become part of neighborhood prior to requesting something like this.  

Jerry Ryan, 4 Nichols St., Ward 4 Councillor, notes the property is zoned Residential.  He says the neighbors want only residential, not a business.  He says a lot of people want to work out of their homes, but this affects other people’s homeowners’ insurance.  1 –2 people per day are more than are there now, and these clients are not residents of the neighborhood.  

Ms. Curran says that to clarify, home occupation is a special permit allowing a business use – it does not mean it stays with the property.  This is not a variance.  It can run with a particular owner, and it can be for a time limit.  Up to one employee not living in the house is allowed but this Board can regulate that there are none allowed.  25% maximum floor area is allowed for a home occupation, but the Board can regulate this too.   She says many of these things are addressable – she is not speaking to the merits of the proposal, but many of these issues can be addressed.

Mr. Gregoire says he empathizes – and they do not want to hire employees. Ms. Belair asks if they would accept that as a condition; he says yes.  He will work with the neighbors and the Board.  He says 25-30 cars come to his driveway every day.  The Puleos had warned them about this because they have a 3 year old.  He does not think there is a big impact in comparison.  As for privacy – he says they have considered putting up a fence between the driveways so their clients do not park in the driveway at 5 Freeman Rd.  Ms. Belair asks if they would accept conditions limiting the number of people, hours of operation, and hours limited to weekdays.  Mr. Gregoire says they are willing to work with the Board and neighbors to make sure everyone is happy.  He says the business would take up roughly 10% of the house.  Ms. Belair notes that the Board can place limitations on the home occupation that would address neighbors’ concerns.

Dennis Murray, 10 Freeman Rd., asks who monitors these limitations.  He thinks they will expand.  The turnaround is a concern.  The additional clients will make this worse.  

Ms. Curran asks about enforcement; Mr. St. Pierre says that presents some difficulties in that we have to rely on complaint.  Ms. Belair says the Board can condition the permit for 1 year, and could take it away if the applicants are not abiding.  

Mary Goldberg, 8 Freeman Rd., says she wants the street to remain residential.  She is concerned about increased traffic volume.  She is opposed.

Ms. Curran notes that they would be maintaining the residential zoning – not rezoning as business.  Anywhere in Salem a neighbor can ask for this.  A home occupation has different standards than other businesses; for example, they cannot sell goods.  

Mary Goldberg asks what the difference is between seeing clients and selling a service.

Ms. Curran explains how home occupations operate, and how they are permitted case by case, citywide.  

Arthur Sargent, Councillor at Large, 8 Maple Ave, asks when the last time was that a business use special permit changed hands and got approved for something else.  He thinks they should have found a property that would allow this.  They wanted a family neighborhood – but so do the neighbors.

Ms. Bracke acknowledges that the neighbors don’t know her, but she is happy to meet them – she says they won’t bring a lot of people or disturb anyone.  She is not trying to change the rules; she just wants to work at home without having to worry about access in an office with her wheelchair.  She asks for 1 year special permit so we can see if they are making a mistake or not.  She says they will respect all rules, and asks to be given a chance.  She says she is happy to wait on a decision and speak with the neighbors.

Ms. Curran suggests continuing so she can do that.  

Mr. Puleo asks what criteria the Board would look at after 1 year; Ms. Belair says it would depend on whether there were complaints.  Mr. Puleo says he does not want to have to monitor this.  He says he does not think Ms. Curran is correct about the Special Permit not running with the land.  

Ms. Curran says she will check with the legal department.

Laura Willis, 12 Freeman Rd. says she totally understands the concerns; none of the neighbors have met the applicant, but she would like to give her a chance.  She is familiar with their type of business, and she practices Reiki herself and works at a center.  She says it’s a very quiet 1 to 1 thing.  She notes that the applicants do much of the work long distance via Skype.  She says for this practice, they would not want to create noise.  

Councillor Sargent says the bottom line is it’s a business in R1.  He says there are other properties zoned for business.  

Ms. Puleo says there are other properties that would be perfect for this.  She says they should have looked into where you can put a business in like that.  This means people coming in and out of the home.  Downtown business should be kept downtown.

Ms. Harris moves to continue the hearing to give the petitioners a chance to speak with the neighbors.  She says they need to be clearer about definition of home occupation.  She notes it’s a very mild use and is allowed all over the city, and is quite different from the grandfathering situation, which causes a lot of problems. However, she says she is not optimistic they will be able to come up with a resolution.  She moves to continue the petition to Sept. 19, 2012.  Mr. Gregoire says he wants to keep the neighborhood quiet and raise his family there.  Ms. Harris suggests speaking with the neighbors to show if there are limitations on the business, it will not disturb them.  Ms. Belair seconds the motion to continue to September 19, 2012, and it passes 4-1 (Ms. Belair, Ms. Curran, Mr. Dionne and Ms. Harris in favor, Mr. Tsitsinos opposed).  

Petition of KATHERINE AND JOHN MACKAY requesting a Special Permit under Sec. 3.3.5 in order to alter and expand a nonconforming front porch and construct a 19’x20’ addition on the single-family home located at 96 COLUMBUS AVE (R-1 Zoning District).

Documents & Exhibitions:

  • Application date-stamped 7/2/12
  • McKay Residence Addition Project, 96 Columbus Avenue, Salem, MA, existing conditions site plan, elevations and floor plans, dated 5/16/12, prepared by R. Rumpf & Associates, Inc.
  • McKay Residence Addition Project, 96 Columbus Avenue, Salem, MA, proposed  site plan, elevations and floor plans, dated 6/12/12, prepared by R. Rumpf & Associates, Inc.

Katherine McKay, 96 Columbus Ave., presents the petition.  She wants to replace the front porch, which is nonconforming, and also have a room accessible to the basement.  The property is large, so the other setbacks are met.  It’s a single story addition; just the front is nonconforming.  Ms. Harris asks about the interior; it will be a family room.  She says the elevations quite nice looking.  Mr. Tsitsinos agrees.

Ms. Harris – porches don’t need relief?  Mr. St. Pierre says no, just a Special Permit to extend the front line across.  Mr. St. Pierre notes that the house has been restored nicely; only the porch has been left out.  

Bill Cass, 92 Columbus Ave, supports the petition and says they have done a great job redoing the property.  

Ms. Curran says the architecture is consistent with the neighborhood and the existing house, and the project would not be more detrimental to neighborhood.  Ms. Harris says it is a very nice layout/expansion.  She says it goes will with neighborhood – it’s a great solution to expand without impacting the neighborhood.

Ms. Harris moves to approve the petition with 8 standard conditions, seconded by Mr. Dionne and approved 5-0 in favor (Mr. Dionne, Ms. Belair, Ms. Harris, Ms. Curran and Mr. Tsitsinos in favor, none opposed).  The decision is hereby incorporated as part of these minutes.  

Petition of DAVID CUTLER requesting a Special Permit under Sec. 3.3.5 in order to reconstruct a nonconforming single-family house on the property located at 95 MASON ST (R-2 Zoning District).

Documents & Exhibitions:

  • Application date-stamped 7/2/12 and accompanying materials
  • Plot Plan of Land located in Salem, MA for 95 Mason St., dated 11/11/10
  • Photographs showing house in 2008 and renderings of proposed reconstruction
  • Floor plans prepared by DSD Enterprises Inc.
David Cutler, 154 Washington St., Peabody, presents the petition.  He says he bought the property a few months ago to renovate.  After investigating and talking to Mr. St. Pierre, he decided to rebuild.  He doesn’t think it will be any more nonconforming.  Ms. Curran asks if he is rebuilding the same building.  He says yes, with a minor height change.  Mr. St. Pierre says the height will be within zoning limits.  Ms. Harris asks if it will be clapboard; no – vinyl sided.  

Ms. Harris asks if the Historical Commission has jurisdiction.  Mr. St. Pierre says the house was purchased to be renovated.  The interior was gutted and enough deficiencies found that it couldn’t be renovated; there was extensive damage.  Mr. St. Pierre told him he needed a Special Permit to reconstruct.  His contactor spoke to Mr. St. Pierre’s assistant who incorrectly gave him a permit.  In good faith, the contractor started demolishing.  He did not go through the waiver process; the Historical Commission got involved with the design at this point.  It is not in a district, but what was missed was the review before demolition of a 50 year old or more structure.  

Ms. Curran says she prefers to see hardy board so it looks like wood.  Mr. Cutler says the plan was vinyl.  Ms. Curran says she prefers hardy board; does Mr. Cutler have a problem with that?  He says yes; he’s losing money, behind schedule.  The resale value is already limited because of the location; he has to meet the stretch code.  He says it will be an energy efficient and affordable house.

Ms. Harris – in this city, you devalue a house by putting vinyl on it.  You get more money for a property that looks historic even if it’s not.  

Ms. Curran – I’m glad His Com weighed in on the roof; I have no problem with it going up higher.  

Ms. Curran opens issue for public comment.

Phil Barrett says he is representing his mother, who lives at 93 Mason St.  He says the house probably did need to come down.  He has no objection to house he’s building.  While excavating the back to establish new foundation, Mr. Barrett says they damaged his driveway, and just asks that they repair that.  He would like to see Lynn-pack so there is no sagging.  He spoke with the builder.  They could do their staging without damaging the driveway.  He says he has no problem with them coming into his property to do what they need to do, as long as they repair the driveway, remove the asphalt, replace with Lynn-pack or ¾ inch crushed stone, then a final coat to close off the driveway.  

Christopher Sweeney, 97 Mason St., iscurious to see plans.  He examines them.  Will you excavate and pour foundation?  Mr. Cutler says minimally – it will be cinderblock.  

Ms. Curran – says this is consistent with the neighborhood, and not more detrimental.  They are following the footprint, and it’s not inconsistent with the zoning bylaw or the neighborhood.  Ms. Harris says this is an improvement to replace a house that was falling down and in poor condition.

Ms. Belair moves to approve the petition with 6 standard condition and two special conditions:  1. The driveway on 93 Mason Street is to be repaired as follows: asphalt is to be removed and replaced with Lynn-pack or ¾ inch crushed stone, and then a final coat is to be applied to close off the driveway.  This driveway is to be completed prior to issuance of a Certificate of Occupancy for the house on 95 Mason Street.  2. The exterior of the house shall be clad in clapboards or hardy board.  

The motion is seconded by Mr. Dionne and passed 5-0 (Mr. Tsitsinos, Mr. Dionne, Ms. Curran, Ms. Harris and Ms. Belair in favor, none opposed).  The decision is hereby incorporated as part of these minutes.  

  
Ms. Harris moves to adjourn the meeting, seconded by Mr. Tsitsinos to adjourn and approved 5-0.  

The meeting adjourns at 9:23 p.m.

For actions where the decisions have not been fully written into these minutes, copies of the decisions have been posted separately by address or project at: http://salem.com/Pages/SalemMA_ZoningAppealsMin/ 

Respectfully submitted,
Danielle McKnight, Staff Planner

Approved by the Board of Appeals 8/15/12