City of Salem Zoning Board of Appeals
Minutes of Meeting
Wednesday, December 19, 2012
A meeting of the Salem Zoning Board of Appeals (“Salem ZBA”) was held on Wednesday, December 19, 2012 in the third floor conference room of 120 Washington St., Salem, Massachusetts at 7:00 p.m.
Those present were: Annie Harris, Mike Duffy, Becky Curran (Chair), Jimmy Tsitsinos, and Rick Dionne. Those absent were: Bonnie Belair and Jamie Metsch. Also present was Danielle McKnight, Staff Planner.
Ms. Curran opens the meeting at 7:05 p.m.
Approval of Minutes
Mr. Dionne moves to approve the minutes of 11/7/12, seconded Mr. Duffy; all in favor.
Petition of BING REALTY TRUST seeking to amend a previously issued Variance decision in order to change the allowed hours of operation of the dance studio located in the building on 41 MASON ST (NRCC).
Documents & Exhibitions:
- Application date-stamped 11/7/12 and accompanying materials
- Letter (violation notice) from Thomas St. Pierre dated 8/1/12
- Variance decision dated 3/27/03 for 41 Mason St.
- Letter from Kathleen Zolla, PO Box 5, Bedford, dated 12/17/12
Attorney Jack Keilty presents the petition on behalf of Bing Realty Trust. He says they wish to amend a variance issued with conditions that included restrictions on the hours of operation. He says Dance Enthusiasm has been a tenant for years, and they wish to change the terms of the variance to allow hours of 7 am to 9 pm, to accommodate classes that take place after school and the workday. Mr. Haley of Bing Realty Trust is present tonight as well. He says they are a use highly compatible with the neighborhood, particularly since this is located in the Industrial zone. There is very little traffic and virtually no noise generated by this operation.
Ms. Curran: Is this open seven days a week?
Mr. Keilty: Five days a week, there are extended hours until 9 p.m.
Ms. Curran: There are many people here; everyone should have a chance to talk, so please keep comments brief if the same points have already been made.
Attorney Mark Nestor, 45 Middle St., Gloucester, representing 37 Mason St. residents Joseph and Silvana White, says his clients agreed to issuance of a variance as long as hours were restricted. He says the dance studio should have been aware that the building had restricted hours. There is a noise and a parking issue, reinforced by the number of parents. There is minimal off-street parking. His clients hear the music – they have children and this disrupts bedtimes, etc. He requests that the Board not grant the extension until 9 p.m.
Joseph White, 37 Mason St., says the dance studio circulated a petition about this, and it was insinuated that a methadone clinic would be put here if the hours of operation were not extended. He says the noise has been a nuisance, including music and children running in the back. He opposes extending hours.
Nancy Keller, 14 N. Central Ct., Peabody, says the studio is run very well. The teachers are with the students after school, not only working on dance but service issues. She says the teachers are professionals who encourage the girls to be kind, principled, etc. These are not the kind of people who would threaten a methadone clinic – she finds this hard to believe. The impact is negligible. She rarely hears the music, even when dropping off her daughter. She says the walls are thick and windows are not usually open. Dropoff/pickup does not cause parking problems. She objects to complaints from Mr. White about the 9-year-olds laughing, etc. She says this was a run down area that was improved.
Steve Ryan, 77 Mason St., says he didn’t sign the petition. While he is sure the dance studio is positive for the kids, the expansion of business is troubling. He says he’s often awakened by ambulances coming into the property. He understands this is not for the dance studio, but why would they expand one business and not another? This is a residential area.
Lisa Swenson, 2 N Central Ct., Peabody, says she is there 5 days a week; she never parks outside the lot and never on the street, and doesn’t understand how parking is a problem.
Arthur Parent, 39 Mason St., says when the permit was voted on, there were not supposed to be evening businesses. There are traffic problems, noise constantly. Once everyone leaves at night, there’s a lot of traffic.
Silvana White, 37 Mason St., says as to the point that there cars are dropping and picking up and not staying – this is true, but we live there and we actually hear this noise.
Mary Luz, 12 Summit St., Salem, says noise is not a problem. She is one of the teachers and says they keep the windows closed and AC on so that there isn’t noise outside. They have told parents not to park in the street. Congestion is only 5 minutes during dropoff/pickup. We don’t allow the children to run around the lot. I don’t understand after 7 years why we are suddenly hearing about the noise.
Alexandra Serino, 6 Pierce Ave, Beverly, says that as to the conversation about the methadone clinic – I was one of the people circulating petition. What we said about the clinic is that’s what’s causing the noise and ambulances. I’m an alum and teacher, and we don’t allow the kids to go downstairs to wait for a ride. If this went out of business, it would affect a lot of people.
Amy Forman, 81 Bates Rd., Swampscott, says this is a mixed use street – we are looking to encourage business, and these hours are totally reasonable for a dance studio. This is family-friendly, healthy business. It’s a positive environment and the request for a couple of extra hours is reasonable.
Joanne Joyce, 19 Windsor Lane, Topsfield, says her daughter has just begun at Dance Enthusiasm, and since then she has grown and matured. She is encouraged by the teachers. We don’t make noise. We trust the teachers. We need to look more at keeping kids off the street or home playing video games.
Steve Luz, 12 Summit St., says these young ladies are ambassadors from Salem. They go to competitions in other regions, and the girls are proud to be from here. They are positive role models and are just about to start their competition season. This would pull the rug out from under the competition.
Ms. Curran: Have you been operating until 9? It varies. Summer is partially closed. We never knew there were restricted hours. Ms. Curran: even when you signed the lease? No.
Ms. McKnight summarizes a letter from Kathleen Zolla, Boxford, in support of the studio.
Mr. Keilty: This is the BP zoning district – nature of uses is mixed. On the corner, it’s very business oriented. There are gas stations, retail, etc. Heading down Mason St., there are former industrial uses. This is an allowed use in this zoning district. However, it’s located in a building that had changes made with a variance issued to Mr. Haley. The Ward councilor reported the neighborhood was in favor of the change at the time in order to improve the property. Mr. Haley had said the uses would be compatible with this zoning district. It’s only because of the dimensional variance granted in 2003 that the hours are restricted; it’s not because the use is not allowed. He says the premises are much improved from having been an auto repair shop.
There are no neon signs. Our use is consistent with the zoning district, as are the hours. He understands there are residential properties that enjoy or don’t enjoy business zoning, and there are transitional zones. He says the proposed hours are reasonable.
Atty Nestor: the key issue is “but for”; they needed a variance, and in getting one, they agreed to restrict the hours. It also appears the dance studio was not advised by the landlord of the hours. Now the landlord is asking us to fix his mistake. He was aware of the restriction.
Ms. Curran: the issue is that a variance was granted in 2003. It was discussed and agreed to that one of the reasons it was granted – there were certain conditions that run to the property. A variance runs with the property. If we are altering the hours of operation for dance enthusiasm, it’s for the building. We can’t do a variance for the hours for one of the places there. When they leave, it’s that space. I don’t see how we really can do this. I think the studio is great. But this was negotiated in 2003, and we’re still hearing from the neighborhood that these issues are still relevant. I think it allows the other uses in the building to possibly extend their hours of operation as well.
Ms. Harris: I agree – a variance is a variance, and this appears to be a key component to it. It’s not a Special Permit.
Mr. Tsitsinos: Each business is different.
Ms. Harris: this goes with the property, not the business. We just dealt with this at the last meeting.
Mr. Tsitsinos: This is children’s after school time – not a clinic.
Ms. Harris: you can’t make a distinction on a variance.
Ms. Curran: This building has a limitation on it in hours. If they had known that, they may not have signed the lease. I have no problem with the use.
Ms. Harris: It’s impractical to have the studio without those hours.
Mr. Tsitsinos: after 7 years, this has just come up?
Mr. Keilty: nothing prohibits you from considering the hours. I understand the variance runs with the land. However, if you wanted to revisit the hours, you could do so.
Ms. Curran: We’re still hearing issues from the neighborhood. You still have the same people living here.
Mr. Dionne: HES is now restricted?
Ms. Curran: everyone in the building is restricted.
Ms. Harris: I agree with you.
Mr. Dionne: we restricted the 24 hour operation only?
Ms. Curran: no, everything was restricted in the building by the variance.
Mr. Keilty: we are asking for an amendment to the hours, not saying we are exempt.
Kelly Belthoff, 20 Sylvan St., Danvers, notes that psychiatric screening is done in the building.
Ms. Curran: HES and others are all restricted by the variance.
Joanne Joyce: Isn’t there a house for troubled teens there?
Mr. Dionne: I hate to restrict their hours. Ms. Curran – they are restricted, not through the zoning, but through a previous variance. The building was allowed to be renovated as it was, with those restrictions. As to the HES petition, this board determined that it didn’t matter if it was an exempt use or not.
Kathy Surrette, 4 Hawk Hill Rd., Beverly, asks why the building was restricted.
Ms. Curran: there was a lot of neighborhood concern about the evening hours. It wasn’t a matter of right – they were asking for relief - and they agreed to the condition.
Lisa Roberts, 4 Forence Rd., Peabody – The only congestion on Mason St. has been during construction. This is the beginning of a business district, which this studio is part of. You are asking to restrict hours for this kind of business.
Ms. Curran: this runs with the land. This particular building was not done by right, it was done by a variance, and it had restrictions, and without those, this project may never have gone forward.
Amy Forman: Don’t you have the ability to change the variance?
Ms. Curran: we are dealing with an existing variance. It would apply to the entire building. I am still hearing neighborhood issues. If the neighbors supported something with conditions, and this was changed, then something else could go in here until 9.
Mr. Keilty: that is highly speculative, and we have a use here now.
Ms. Harris moves to approve the petition to change the hours of operation to extend to 9 p.m., seconded by Mr. Tsitsinos and voted 2 in favor (Mr. Tstitsinos and Mr. Dionne) and 3 opposed (Ms. Curran, Ms. Harris and Mr. Duffy). The petition is denied. The decision is hereby incorporated as part of these minutes.
Petition of THOMAS H. PSZENNY requesting a Special Permit to construct a third-story dormer on the two-family house located at 7 HODGES CT (R-2).
Documents & Exhibitions:
- Application date-stamped 11/20/12
- Alterations & Repairs to 7 Hodges Court, Salem, MA, prepared by Richard Stanley AIA, dated 10/2012
Richard Stanley, 191 Lowell St., Peabody, presents the petition for 7 Hodges Ct. He says they are renovating the property, and in order to do it economically, they are asking to raise the roofline and add a dormer. We are raising the wall four feet in a full shed dormer. The elevations show how it affects the view on three sides. It’s already a nonconforming building, and it’s run-down.
Ms. Harris: This is in the historic district.
Mr. Stanley: I was told we didn’t need to see the commission because it’s not a historic building. Ms. Harris says this is incorrect if it’s located in the district – he should check again if it is.
Ms. Curran: we would make any approval contingent on necessary Historical Commission approval.
Ms. Curran opens the issue up for public comment. No one comments.
Ms. Curran: The use is staying same, and you are increasing head room.
Mr. Stanley: It was built in 1898.
Ms. Curran: I have no problem with this proposal; it’s minimal, and not detrimental in any way. There would be no effect on traffic flow or utilities.
Mr. Duffy: This is a minimal change, and doesn’t change any nonconforming aspects of the existing structure, and I can’t see how it would be a detriment.
Mr. Duffy moves to approve the petition with 8 standard conditions, seconded by Mr. Dionne and approved 5-0 (Ms. Harris, Ms. Curran, Mr. Tsitsinos, Mr. Duffy and Mr. Dionne in favor, none opposed). The decision is hereby incorporated as part of these minutes.
Petition of MATTHEW BANKO requesting to amend a previous decision of the Zoning Board of Appeals to eliminate the owner occupancy requirement from a Special Permit for the property located at 9-11 OCEAN TERRACE (R-1). Applicant also requests a Variance and Special Permit to add a third-floor dormer to the structure.
Documents & Exhibitions:
- Application date-stamped 10/24/12
- Elevation drawing, no date
- Condominium master deed for 9-11 Ocean Terrace
- Exhibit 2: Purchase and Sale agreements, dated 10/23/12
- Three previous Special Permit decisions for 9-11 Ocean Terrace date-stamped 7/1/10, 3/12/86, and 9/10/80
- Plot plan dated 6/4/12
Atty Mike McCardle, 204 Lafayette St. Salem, represents Matthew and Joseph Banko, who are also present. He says they have owned the building and resided there since 1996. He summarizes previous relief granted for this property, allowing it to be used as a three-unit building, and later clarifying conditions. Mr. Banko recently had condominium documents done, and these have been submitted. This is a 3-unit condo that he has marketed in various listings to purchasers. However, banks will not issue a loan under current conditions of the special permit. If it were foreclosed, it would not be owner occupied, and there would be an automatic reversion to the two-family status, as specified in the special permits. If an owner decided to lease, this would result in an automatic reversion. The same
would happen for any potential purchaser. He says even if leased, an owner would have to retain an interest in the property. The first owners would live there; they just don’t know if they or other subsequent owners may lease in the future. He says the units will be separately taxed, and the sum value will be higher than the building currently is taxed for.
He then addresses the dormer requested. Mr. Banko would like to add a third-story dormer of 9 feet.
Ms. Curran opens the hearing up for public comment. No one comments.
Ms. Curran: There are two issues – the variance for the dormer, and taking away the Special Permit condition that it be owner occupied. The fact that it’s been a rental and is now going to condos does change the owner occupied situation. How many parking spaces are there now? There’s a plan to remove an oak tree to make room for a fifth space. Atty McCardle reviews the parking plan.
Ms. Harris: it has three parking spaces – what is the condo requirement? 5?
Mr. Banko: there are four spaces now.
Mr. Dionne: I hate to cut down a 150 year old tree.
Ms. Curran: I don’t really see the hardship reasoning for the dormer.
Mr. Banko: it’s a pitched roof and there’s no room for a table, and it’s terrible. You can’t stand up. That’s a hardship.
Ms. Harris: that’s because it was supposed to be a two-family.
Ms. Curran: it may be there shouldn’t be living space. I don’t see that as a hardship. On the issue of occupancy – it’s a little confusing. I would be willing to amend it to take away the owner occupancy requirement if it was limited to 2 units. That would be the issue anyway when it sells.
Mr. McCardle: We already have a P&S for two units.
Ms. Curran: I would be willing to waive the owner occupancy restriction if it were a two-family.
Mr. McCardle: We are trying to enhance owner occupancy, not waive it. It needs to be worded such that there would be no automatic reversion in the case of foreclosure or lease. It’s been used as a three family since 1980, and it’s set up nicely that way.
Ms. Harris: all action of the previous board anticipated it would revert back to a 2 family.
Ms. Curran: I don’t think we can do the dormer.
Mr. McCardle: the other issue is more important.
Ms. Curran and Ms. Harris agree it should revert to a 2-family if the clause is removed.
Ms. Harris: It was only allowed to be a three family for a while; it was always anticipated to go back to a 2 family when sold. All recent action has anticipated that. This is a one-family zone.
Ms. Curran: I would be willing to take out the problematic language to make it a two-family.
Ms. Harris: I agree; if we vote on clarification, the goal would be 2 family owner occupancy.
Mr. Dionne: this has been used as a three-family for a long time.
Mr. Tsitsinos: how many meters are on the property? Mr. Banko says four.
Ms. Curran: if this were denied tonight, it would revert to a two family? Mr. McCardle: No, we have an owner occupant, there would be no change, it would just kill the condo marketing plan.
Mr. Dionne: The condos would not necessarily be owner occupied, because those owners could lease.
Mr. McCardle: You still have to be involved in the property and make sure the rules are followed.
Ms. Curran: we will divide this into two votes – the dormer and the language.
Ms. Harris moves to approve the request for the third-story dormer, seconded by Mr. Duffy, and denied 4-1 (Mr. Dionne in favor; Ms. Curran, Ms. Harris, Mr. Duffy and Mr. Tsitsinos opposed).
Ms. Harris moves to approve the request to amend the owner occupancy requirement, seconded by Mr. Duffy and denied 5-0 (Mr. Dionne, Ms. Curran, Ms. Harris, Mr. Duffy and Mr. Tsitsinos opposed, none in favor). The decision is hereby incorporated as part of these minutes.
Old/New business
Ms. McKnight announces she will be leaving the City of Salem at the end of the year.
Adjournment
Ms. Harris moves to adjourn, seconded by Mr. Dionne; all in favor.
The meeting adjourns at 8:40 p.m.
Respectfully submitted,
Danielle McKnight, Staff Planner
Approved by the Board of Appeals 1/17/2013
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