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Approved Minutes 11/7/2012
 City of Salem Zoning Board of Appeals
Minutes of Meeting
Wednesday, November 7, 2012

A meeting of the Salem Zoning Board of Appeals (“Salem ZBA”) was held on Wednesday, November 7, 2012 in the third floor conference room of 120 Washington St., Salem, Massachusetts at 7:00 p.m.

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

Executive session for purposes of discussion of litigation in the action styled Byrne v. Curran, ESCV 2012-01567, relative to 16 Saunders Street

Ms. Curran opens the meeting at 6:55 p.m. to announce that the Board will be going into Executive Session to discuss litigation; it is not beneficial to the case to discuss the matter in open session.

Mr. Duffy moves to go into Executive Session, seconded by Mr. Metsch and approved 6-0 (Mr. Tsitsinos, Ms. Curran, Ms. Harris, Mr. Mestch, Mr. Dionne and Mr. Duffy in favor, none opposed).  The Board leaves the room and returns at 7:15.

Mr. Dionne moves to reconvene in open session at 7:15, seconded by Mr. Tsitsinos and approved (Mr. Tsitsinos, Ms. Curran, Ms. Harris, Mr. Metsch, Mr. Dionne and Mr. Duffy in favor, none opposed).   

Petition of ERIC GLASS requesting a Special Permit to expand a nonconforming use in order to conduct bottling on the premises of 51R CANAL ST/4 FLORENCE ST (B4 & R2)

Documents & Exhibitions:
  • Application date-stamped 9/13/12 and accompanying materials
  • ZBA Variance decision of 7/24/85
Eric Glass, 52 Old Denville Rd., Boonton, NJ, presents the petition.  He says he is starting a new rum importation business that he is hoping to bring to Salem.  Part of his criteria will be bottling.  He says there will not be a great traffic impact.  If he doesn’t outsource the bottling, he can employ more people.

Mr. Metsch asks Mr. Glass to describe the equipment involved.  He says he has a relatively small bottler, about the size of the Board’s table.  It’s a semi automatic bottler, that also does capping.  He says they do a million bottles a year or less and says this sounds like a lot but isn’t.  

Ms. Curran notes that the Board issued a variance on this building several years ago.  This is a Special Permit to expand that nonconforming use.  There were several conditions – she reviews the original decision.  Are there still 14 parking spaces?  Gino Ciasullo, owner of the building, says yes.  There are about 5 employees.  

Ms. Curran opens the issue up for public comment.  No one comments; she closes the public comment portion of the hearing.

Ms. Harris – any exterior changes?  Mr. Glass says just signage, which I would do separately, something appropriate.  Mr. St. Pierre – any safety concerns?  You are not distilling, no pressurizing?  Mr. Glass says no. Mr. Metsch asks if the only reason it’s before the Board is that the previous Special Permit didn’t include manufacturing?  Mr. St. Pierre explains the bottling is an expansion or change of the property’s nonconforming use.  

Ms. Curran – how many square feet is the space?  Mr. Glass says 3100 SF.  Ms. Curran notes that the operation is small, and there is no opposition from the neighborhood, so she has no problem with granting the Special Permit, since it’s not detrimental.  Having a new business is positive.  Ms. Harris asks what use is there currently.  Mr. Glass says it’s an electrical contractor storing vehicles and warehouse space.  

Mr. Metsch – would there ever be an intention to have onsite distillery?  Mr. Glass – there is a trend toward that, but I’m not going to be a distiller.  

Ms. Harris moves to approve the petition with 6 standard conditions.  She notes this business would not have any impact more detrimental than the trucks already servicing the site.  She says it might be an improvement, and there is no opposition.  Her motion is seconded by Mr. Metsch and approved (Mr. Metsch, Ms. Curran, Ms. Harris, Mr. Dionne and Mr. Duffy in favor, none opposed).  The decision is hereby incorporated as part of these minutes.

Petition of NORTHEAST BEHAVIORAL HEALTH CORP. appealing a cease and desist order of the Building Inspector for the property located at 41 MASON ST. (NRCC)

Documents & Exhibitions:

  • Application date-stamped 9/21/12 and accompanying narrative and attachments
  • Cease and Desist letter from Thomas St. Pierre dated 8/1/12
  • ZBA Variance decision dated 3/27/03
  • Letter from Carol Paparella, 4 Dunlap St. Apt. 2, dated 10/17/12
  • Letter from Eric Easley, 35 Mason St., dated 10/15/12
  • Salem Police Department Location History Report dated 10/5/12 for 41 Mason St.
Attorney Marshall Handly, 9 Abbott St., Beverly, presents the petition on behalf of Northeast Behavioral Health (NBH).  He says this began with a cease and desist direction from Mr. St. Pierre identifying hours of operation as a violation.  He says HES is the former name of NBH – this is just a change of name, with the same program and activity.  They have been operating there for about 6 years and are a nonprofit educational entity.  He doesn’t know where Mr. St. Pierre stands on their claim of nonprofit status – he can answer questions about the activities taking place there.  Their position is that under the terms of Dover amendment, they are exempt from zoning regulation; he quotes from MGL Ch. 40A.  He says hours of operation not one of the areas zoning is permitted to regulate for an exempt use.  He says their hours are critical to their educational mission, and the nature of the educational activities requires round the clock attention to the clients served.  He says 60% served are from Salem.  Many referrals are from Salem agencies and the police department.  Their position that they are exempt.  Only one case they have found speaks to the effect of prior variances on subsequent occupancy by a nonprofit – the Rosenfeld vs. Board of Appeals of Menden, a 2011 decision.  He says this case doesn’t allow communities to operate to prohibit these uses under 40A, and that their status renders variances and conditions entirely irrelevant.  He respectfully requests that the Board declines to support the order against the operation.  

Ms. Curran says she understands that Dover applies, but they chose to rent a building with restricted hours of operation.  The variance may never have been granted if the hours weren’t restricted.  However, the restriction is there.  She says our assistant city solicitor, Robin Stein, is here to speak to the Board about this.

Ms. Stein says Salem and the petitioner differ on how you interpret this.  The variance allowed a building on a property larger than otherwise would have been permitted.  You can put restrictions as to time and use.  However, she doesn’t see that as a pure restriction on use.  This is a safeguard on dimensional control.  The Dover amendment allows the Board to regulate.  Dover prohibits an ordinance from regulating uses – but this petitioner has a variance, not an ordinance.  What is the distinction?  In Rosenfeld – you can render the variance and the condition irrelevant.  True, but if you render the variance and condition irrelevant, both disappear, and thus you have a nonconforming building that can’t be used at all because it’s in violation of zoning.  A court may disagree, but I thought it more prudent to have a real analysis.  Board still has to study the facts, make a determination that this is a protected educational use.  She refers to a recent Regis college case.  First we must establish criteria for the exempt use, then look at whether it’s appropriate looking at a variance condition as if it were an ordinance and not a variance.  It might be simpler to ask for relief from a variance condition.  I don’t agree that the condition is just ignored – the Board would have put it in for a reason.  

Ms. Curran opens the issue up for public comment.

Mark Nestor, 45 Middle St., Gloucester, represents Joseph and Silvana White.  He says 40A (3) talks about educational purposes, but doesn’t talk about what they are.  If he looks at the purpose of NBH, substance abuse/mental health treatment, health and disease management, and mental health disorders, the primary purpose is not education.  This is a treatment facility, both in and outpatient.  He says he has pulled police reports; he hands these out to the Board.  He summarizes incidents and notes violent crimes.  He says this does not appear to be an educational facility.  He says they cannot control their clients.   He says the neighbors are subject to disturbances all hours of the day and night.  He says this is not educational, but a treatment facility.  Having it shut down overnight is reasonable.  He asks if NBH is the only item before the board.  He says notice was given to NBH and also their landlord – and this also included the dance studio, but that’s not before board.

Helen Swicker, 44 Mason St., notes problems with traffic, accidents, ambulances and  cars in and out at all hours of night.  She says they thought there would be small businesses in there, quiet, over by 6 p.m., not a medical facility.  She says their trash is dumped out onto sidewalk, and there is just a small driveway to get in and out.  

Silvana White, 37 Mason St., says a section of fence has come down that faces her porch, and her two small kids can’t play in the yard.  Trash has also been thrown into her yard.  

Arthur Parent, 39 Mason St., supported Steve Haley in getting original permit for small, low-key businesses, 7-6, Saturdays till 12, nothing on Sundays.  He didn’t specify 7 days or ambulances.

Eric Easley, 35 Mason St., wants to reiterate his opposition.  He wouldn’t have approved expansion of building to what it is now – within a foot of his property.  He says the neighbors are not treated right by this property.  

Ms. Curran summarizes a submitted letter in opposition from Carol Paparella, 4 Dunlap St.

Ms. Curran: It seems to me the conditions of the variance are quite different from something in the bylaw prohibiting hours.  Anyone who goes into this building is subject to conditions of that variance.  She refers to problems of the neighbors and says the hours were put in for a reason.  Variances may not have been granted without those conditions.  We don’t need to get into whether it’s protected by the Dover amendment; regardless, they would be subject to variance.  I would uphold Mr. St. Pierre’s cease and desist order.  

Ms. Harris agrees; the hours were an important part of the variance and the provision should be respected.  

Mr. Duffy: Based on the record we have seen and heard, I don’t know if it’s established that this is a Dover use, or that the limitations of this variance impede an educational use in a way that serves a municipal goal.  The original variance’s limitations were put in to serve a municipal goal.  There is ample evidence with the type of police reports submitted that there are problems that would speak to a limitation on hours.  For all those reasons, and those stated by other members of the board, the cease and desist should be upheld.  

Mr. Metsch also agrees that the dimensional variances connected to the conditions, time of operations, etc. should be upheld.  

Mr. Duffy moves to uphold the cease and desist letter, seconded by Mr. Metsch and approved (Mr. Metsch, Ms. Curran, Ms. Harris, Mr. Dionne and Mr. Duffy in favor, none opposed).  The decision is hereby incorporated as part of these minutes.  

Petition of JOANNE R. HIGGINS for an administrative appeal of a decision of the Building Commissioner for the property located at 7 FLORENCE ST. (R2)

Documents & Exhibitions:
  • Application date-stamped 8/9/12 and accompanying materials
  • Letter from Thomas St. Pierre dated 7/11/12
  • ZBA variance decision dated 4/25/01
  • Letter from Thomas St. Pierre dated 7/20/11
Attorney Joe Wellington, 50 Leavenworth St., Waterbury Ct., represents the petitioner.  He is appealing Mr. St. Pierre’s decision sent to the Licensing Board resulting in the expanding nonconforming use at 7 Florence St.  He notes R2 doesn’t allow auto service.    According to Section 3.3.2 of the Zoning Ordinance, the Board may expand a nonconforming use; it must not more detrimental than the existing nonconforming use.  The Building Commissioner, by means of a letter to licensing, expanded the use in a way that is the exclusive jurisdiction of this board.  

He reviews the submitted materials and says that according to the General Laws, no one can sell autos without a permit issued for that purpose.  Sec. 59, Ch. 140, defines types of licenses that can be issued.  No license shall be granted without a licensing board license.  A Class II license is issued for buying and selling used autos.  There is also a Class III license, a junk permit, that allows taking apart and reselling used autos.  This must be done in the context of a class III license.  However, it can’t preempt the zoning ordinances.  One needs 1) a license to sell cars, and 2) local zoning approval.

Atty Wellington says that in June 2012, the owner submitted an application for a Class II license for the primary purpose of selling, not as a repair shop.  The City Solicitor said the license could be entertained with conditions on the use by the zoning officer.  The License has land use conditions attached to it not allowed.  A letter placing land use restrictions on the property was approved.  The Class II license was issued, conditional upon the building commissioner placing restrictions.  He says according to the actual license, the building was dedicated to preparing and showing classic cars.  He says the License doesn’t define what preparing means.  

The decision he is appealing is the letter issued by Mr. St. Pierre to the chair of the licensing board advising that the sale of cars is not inconsistent with previously approved use of property.  It was formerly a warehousing building.  Mr. St. Pierre also said it was OK to store and restore classic cars under this class 2 used car license.  If they were to expand, that would require action in a land use context by ZBA.

Mr. Wellington says the current variance sets limits on the current use of the property.  A warehouse is not a place where autos are to be repaired, stored, painted or modified.  It conforms in all other respects with ordinances, but you can’t modify/repair/service autos without a variance.  He says the variance issued in 2001 had an extensive section on the division between the residential properties and the nonconforming use.  The Variance was extensively negotiated by the neighbors.  There was no provision for servicing or managing autos, just storing them.

Mr. Wellington refers to the letter dated July 20, 2011, and says he is not appealing this letter.  He says it is included because when you look at all info presented, there is no description of restoration or preparation.  The position of Ms. Higgins is that existing law can’t be used for auto restoration or preparation.  It is limited to storage.  Issuing a letter from Mr. St. Pierre to the licensing board, in effect is to expand a nonconforming use without the authority of this board.

Attorney Joseph Correnti, 63 Federal St. , represents the owner of the business.  He says this issue is not properly before the board.  On their application, the front page says clearly this is an appeal of licensing board decision.  First, the ZBA has no jurisdiction over licensing board appeals, as this board knows.  Mr. Wellington’s presentation was focused on the licensing board decision, transcript, and license.  Then, he is appealing the 2011 decision by Mr. St. Pierre, which was issued at our request prior to purchase of property.  Mr. Salter is also present.  He says that prior to purchase, we went to the zoning officer and asked for a written opinion as to proposed use.  We knew it was a variance for commercial use, warehousing/storage, but also understand the law as to how uses can be interpreted.  The law is not that narrow – we look at the nature, purpose, intent, impacts, etc.  There is a litany of tests the law allows.  Mr. St. Pierre did that, and issued us a letter in July.  The proposed use is allowed and would be permitted in that building.  Based on that, we bought the property.  Then we started this very low intensity use, for storage and warehousing of classic vehicles.  This is a 3600 SF open building, metal.  2/3 of the building is storage and warehousing of cars.  Mr. Salter does restore cars, 1 or 2 at a time.  This is an indoor quiet use, no spray booths, etc.  He attempts to sell each car by appointment.  This is not a used car lot.  No vehicles are stored outside.  A buyer might look at a vehicle and want to drive it.  Without plates, this couldn’t be done legally.  That was the purpose of the class II auto license.  In order for the licensing board to entertain the application, they must be satisfied that zoning is compliant.  This application went to licensing, the question came up during the hearing; yes, zoning has been addressed 1 year ago, and the use is permitted.  They asked for something that wasn’t asked for originally.  This is not the whole story of the licensing board hearing.  The licensing board asked if they needed to continue the matter until satisfied; the answer was no, they could vote and issue now, based on representation that the zoning was in place for this.  They had a letter from Mr. St. Pierre saying the zoning is appropriate.  The follow up condition was to get a copy of the letter.  The license was issued the day of the meeting.  It was not conditionally voted and was not a temporary license.  According to procedures, an appeal period then runs.  Mr. Wellington needs to say that it wasn’t a final license because otherwise they miss that appeal period.  He says it really didn’t happen until July with second letter from Mr. St. Pierre – he needs to say that’s the event, that somehow that’s the zoning decision from which we have a new appeal period.   No, it was a clarification of a decision from a year earlier.  The site was being used since June 2011 by Salter.  The July 2012 letter was an advisory from Mr. St. Pierre to the board confirming what he had already issued a year earlier.  The application itself states it’s an appeal of a licensing board decision.  This is not properly before board procedurally; even if you determined that it were, it’s an improper enforcement request under 40 A 7 and 8, and there is a procedure to be followed, that was not followed.  That is not before you tonight.  

Mr. Wellington: Looking at the petition, the first part is a series of statements, page 2, the petitioner specifically addresses building inspector’s decision/letter to the licensing board.  ZBA has exclusive jurisdiction over nonconforming activities in the city; the licensing board does not.  According to the minutes from the licensing board, Ms. Rennard said the license can be entertained and conditions placed based on zoning officer’s letter.  This is not a final license.  Approval was contingent upon the letter from Mr. St. Pierre.  It was conditional.  The petition is for the ZBA from a board that the licensing board did not have jurisdiction for.  The license wasn’t final on the day it was issued – this is inconsistent with the record.  This board should cause that letter to be rescinded and have owner come before ZBA to expand a nonconforming use.  This is timely, and properly before you.  If that letter is withdrawn, that means the condition wasn’t satisfied and the license is not effective.  

Mr. St. Pierre clarifies that the St. Pierre referred to in the record is Robert St. Pierre from the licensing board, not him (Tom St. Pierre).

Ms. Stein: It makes no difference what the issuance date of the license is, since you do not hear appeals from the licensing board.  It’s not for this board to decide what happened at the licensing board or what their minutes mean.  Ch. 40A Sec 8 authorizes appeals of decisions by zoning officers.  It is questionable whether Mr. St. Pierre’s letter from this summer constitutes a decision based under 40A 8 as an appealable decision.  The board should determine whether this was a decision that can be appealed.  It’s very clear from the letter its purpose was.  The letter was simply to tell the licensing board that the occasional sale of cars was consistent with the uses permitted.  A decision was made based on variance issued well over a year ago.  The reference in the letter from the summer to not spray was not an attempt by Mr. St. Pierre to condition a use on the property; he was simply articulating what the use allowed was.  The only decision made in the letter was that the addition of occasional car sales was not inconsistent with the use allowed by the variance.  What is before the board is an appeal of decision is that the occasional sale of cars should be allowed.  

Ms. Curran – so that’s all that’s what is before us?  Ms. Stein – yes.  It’s not an attempt of an exercise of a land use restriction.  This is just whether or not adding occasional car sales is permitted under the variance.  

Ms. Curran – what is the process for appeal of a licensing board decision?  Ms. Stein says she doesn’t know, but it may just be to court.  I know it doesn’t come here.  What’s before you is in Mr. St. Pierre letter from the summer.  This is the only thing that could be timely for this board.  

Patrick Higgins, 15 Captain Pierce Drive, says Joanne Higgins is his mother.  He opposed the licensing board decision.  He says the issue isn’t just the use, but maintenance.  In 2001, maintenance was stricken from zoning board decision because neighbors didn’t want it.  They expanded the business, made a new lot, screened from neighbors, just for storage, not to be any maintenance.  He was not aware of any expansion in use in 2011.  There wasn’t anything abutters were made aware of.  How could abutters appeal it?  If you’re going to expand a use from the variance, to include maintenance, which was originally a big point with neighbors, there should be a hearing.  If a special permit was issued to expand the variance to do that, that didn’t happen.  There was a quiet letter from the building inspector to do that.  He was very concerned about paint booths, metal grinding and other things.  In the June 2011 letter – it discussed the storage and maintenance of equipment, nothing about class II auto sales.  That’s not what was presented to the licensing board.  Mr. St. Pierre wrote a new letter in 2012 prompted by my letter, so the 2011 doesn’t stand.  That one doesn’t say class II auto sales.  Buffering and screening on the site wasn’t finished.  They just added 3 trees after our discussion this summer.  The lot is devoid of vegetation.  The original variance had a landscaping plan.  

Mr. Wellington says it was said that the 2012 letter was just pertaining to auto sales – but the letter says it was agreed that a spray booth would not be allowed.  In the licensing board minutes, Mr. Salter said they wouldn’t use a spray booth.  So this letter was intended for something more.

Sean O’Brien, 21 Cedar St., Florence St., says he sits below the neighbors on Cedar.  He says there are lots of children on Cherry St.  Restoration uses solvents, spray painting, chemical cleaning, fumes will come up to their area.  He is worried about the health of the children.  How could cars be restored without using chemicals?

Ms. Curran asks Mr. St. Pierre how he would classify this use.  Mr. St. Pierre says when he made the zoning determination, it was based on what was before him in the 2001 decision, and what Mr. Correnti presented as the use for the building.  He rendered a decision that it was appropriate and not contrary to the commercial uses allowed in 2001 variance.  The licensing board letter was a clarification of the previous decision.  

Ms. Curran: how would this be classified?  Mr. St. Pierre – I looked at what was allowed – a construction warehouse.  This is typical storage of contractor equipment, which in my mind would include maintenance.  There is no restriction on that.  It seemed even less intense than a contractor yard or warehouse.

Ms. Curran: It’s perfectly appropriate to ask for clarification on whether they could do this, and he decides.  That part is appropriate.  The question is – describe the use.

Robert Salter says it’s a 3600 SF building is broken down into 3 sections.  2/3 is storage of cars.  Now there are 4 cars they are selling, which were brought in finished, no restoration.  You can only test drive with dealer plates.  The rest has a lift, tools, etc.  To this point they have done nothing but mechanical tuning of cars, making collector cars period correct.  There are two employees.  There is a small mezzanine office above.  If we ever had to paint, strip, use solvent, we have places we rent booths.  We do none of this in the building.  There is no pollution.  

Ms. Curran – hearing that, Tom, you think that is consistent with the variance given on this property?  That use would not need to come to this board.  Mr. St. Pierre says this is the same description given by Mr. Correnti, and that was my interpretation.  For a year they operated and I received no complaints from neighbors.  Mr. Salter also operates another on a residential street with no complaints.  

Gino Ciasullo, 4 Florence St., says he has never smelled any fumes or seen any noise.   

Thomas Higgins, 8 Florence St., says language is being played with.  During the meeting with neighbors, storage was addressed, not maintenance.  He says they should get proper permits – as it stands, it’s not legal.  

Ms. Harris – in the decision in 2001, it seems like most of this was around landscaping.  Was that work done?  Mr. St. Pierre – some was not.  But that’s an enforcement issue.  Neighbors should notify my office and we would address it.  If that had been brought to my attention, we would have addressed this violation.  It is still enforceable now.

Sean O’Brien says he afraid that with the wording, Salter says painting will happen elsewhere, fine, but if the variance stands and they can restore, what happens when he sells?  What else could come in under that wording?  Mr. St. Pierre says that “restore” is not used.

Ms. Stein:  to the extent that Tom made a determination that the use described to him is consistent to the variance, he didn’t do anything to expand the variance.  There are people who think that determination is wrong, and there are mechanisms to challenge that, but those have not been exercised.  The only thing being appealed is Tom’s letter from this summer.

Ms. Curran: what actions can the board take?

Ms. Stein – Start with what Tom’s letter means.  The purpose of the letter is to explain that the current use of property is appropriate with the variance, adding that maintenance/sale is not inconsistent with the variance.  It’s simply a clarification that no spraying would be happening – this might be a different use.  Before you is the sale use.  Are they aggrieved by the sale?  The mechanism for bringing the class II sales use before you has not been exercised.

Ms. Curran closes the public comment portion of the hearing.

For purposes of letting the licensing board know there was nothing inconsistent with the use based on variance…It doesn’t sound inconsistent.  

Ms. Curran – we’re certainly not going to uphold a licensing board decision; we don’t have jurisdiction.

Ms. Stein – You can approve or deny the appeal.  

Mr. Duffy – I agree with Ms. Stein on this issue – I question on whether this appeal is properly before this board.  But assuming there’s an issue we can decide on, Mr. St. Pierre’s decision that the sales use was consistent with the nonconforming use on the site – that was the one issue addressed in the letter – the occasional sale fits within the nature and purpose of the commercial use – that’s one opinion offered in this letter.  If there’s a motion, it would be to affirm the appeal; my view is based on what we looked at here, the appeal should not be affirmed.  

Mr. Duffy moves to affirm the appeal, seconded by Mr. Dionne.   The motion fails 0-5 (Mr. Duffy, Mr. Dionne, Mr. Metsch, Ms. Harris and Ms. Curran opposed, none in favor).   The decision is hereby incorporated as part of these minutes.

Mr. Metsch moves to adjourn the meeting, seconded by Mr. Duffy; all in favor.

Meeting adjourns at 9 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
  
Approved by the Board of Appeals 12/20/12