City of Salem Board of Appeals
Meeting Minutes
Wednesday, April 17, 2013
A meeting of the Salem Board of Appeals (“Salem BOA”) was held on Wednesday, March 20, 2013 in the third floor conference room at 120 Washington Street, Salem, Massachusetts at 6:30 p.m.
Those present were: Annie Harris (Vice Chair), Richard Dionne, Mike Duffy, Tom Watkins and Jimmy Tsitsinos (Alternate). Those absent were: Rebecca Curran (Chair) and David Eppley (Alternate). Also present were Thomas St. Pierre, Director of Inspectional Services, Robin Stein, Assistant City Solicitor, and Daniel Sexton, Staff Planner.
Vice Chairwomen, Ms. Harris, called the meeting to order at 6:30 p.m.
Ms. Harris: Explained to the board members and public in attendance that the meeting is being recorded.
- APPROVAL OF MEETING MINUTES
Ms. Harris asked if there was a motion to approve the meeting minutes from the February 20th meeting.
Motion: Mr. Watkins made a motion to approve the minutes as written, seconded by Mr. Dionne, and a unanimous vote was taken. All the members voted in favor, with a 5-0 vote in favor (Ms. Harris (Vice Chair), Mr. Dionne, Mr. Watkins, Mike Duffy and Mr. Tsitsinos (Alternate) and none opposed. Board of Appeals members Ms. Curran (Chair) and Mr. Eppley (Alternate) were absent from the hearing. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Ms. Harris introduced the first agenda item.
Petition of JOHN O’NIEL for Variances from Sec. 3.2.4 subsections 2 and 4 of the Salem Zoning Ordinance, in order to allow the vertical expansion of two existing storage bins and the development of two new storage tanks closer than ten feet to the principle building and that exceed eighteen feet in height at the property located at 96 SWAMPSCOTT RD (BPD Zoning District).
Ms. Harris introduced the petition and asked whether the petitioner or his agent were in attendance to present the petition?
David Berner (8 Pond St, Marblehead, MA): Mr. Berner is an architect representing the client. He distributed a couple of photographs around to the BOA members.
Mr. Sexton: Explained that copies of the photos will need to be submitted for the record.
Mr. Berner: Explained the overall project being proposed. He described how the existing tanks that are 22 feet in height would be increased in height by 16 feet and 2 inches. These tanks hold pastry ingredients. Additionally, he explained how the proposed relief would allow the construction of a new tank, containing CO2, at a height of 38 feet and 2 inches. According to the Salem Zoning Ordinance accessory structures are to be separated from the primary structure by 10-feet. The existing and proposed tanks are located 1-foot from the primary structure. Mr. Berner also explained discussed a 2009 Variance request that had been approved by the Salem BOA to locate the two existing storage tanks in their present locations.
Ms. Harris: Is there any members of the public here wishing to speak on this issue?
Paul C. Prevey (Salem City Councilor): Asked if the applicant could explain the proposed project again?
Mr. Berner: Briefly explained to the Councilor Prevey how the proposed tanks would look if the Variances were to be approved.
Councilor Prevey: Will the tanks protrude above the roofline and will they be visible from surrounding properties?
Mr. Berner: Yes. Mr. Berner referenced the renderings of the proposed tanks on the plans.
Councilor Prevey: Isn’t there already an CO2 tank located on the property?
Mr. Berner: Yes, but we’re proposing to enlarge it.
Councilor Prevey: My primary concern is the amount of noise generated by these tanks, which has a significant impact on the surrounding neighborhood. I’ve had the Building Inspector visit the site to conduct a noise test, but it was raining at the time. I’ve heard from numerous residents that the tanks generate a lot of noise. Specifically, the tanks create a humming noise and make a distinct sound when they kick on and off. Additionally, the nitro truck generates a large amount of noise as well. I’ve filed a number of complaints because the truck arrives at all hours of the night, even though it’s only supposed to be there between the hours of 11 AM and 7 PM. My concern is for the neighborhood.
Ms. Harris: You called the City on this?
Councilor Prevey: Yes, before I was a elected a City Councilor. While the noises generated by the tanks and truck have gotten better, they still negatively impact the neighborhood. I believe some surrounding residents have tried to work with the operator. I’d encourage the Salem BOA to take a site visit and hear the noise.
Mr. Watkins: Is the noise generated throughout the day?
Councilor Prevey: Yes.
Helen Stevens (5 Paradise Rd, Beverly, MA): I understand the neighborhoods concerns. To mitigate the noise, additional noise inhibitors have been installed on the roof of the building. I was not aware of the truck arrival time. We will work with the trucking company.
Councilor Prevey: Some adjustments that were made over the last couple of years, which resulted in the expelling of smoke, which creates more noise. We appreciate all the efforts the company has taken to mitigate the noises from their facility. I’m more then welcome to work with you to identify and test different measures.
Ms. Steven: Yes, we’d be happy to coordinate and work with you to identify other possible noise reduction measures. We just weren’t aware of the issues.
Ms. Harris: Do members of the Salem BOA have questions for the applicant?
Mr. St. Pierre: Do the new tanks that are proposed operate the similarly to the existing tanks? What could be causing the noise (vibrator, gas, etc.)?
Ms. Stevens: Yes, I’m going to assume the new tanks will use a similar operating mechanism that is supported by gas, probably CO2. We’re willing to take and/or install any measure to reduce the noises being generated.
Ms. Harris: What is actually causing the noise?
Ms. Stevens: It’s the drawing of the gases, which then move the ingredients from the tank into the facility.
Mr. Watkins: So a couple of years ago you installed some noise buffering barriers? Will you be installing additional barriers as part of this enlargement of the tanks?
Ms. Stevens: Yes, we would likely enhance them.
Mr. Dionne: So you’d be installing additional noise barriers that aren’t apparently working?
Ms. Stevens: This is the first we’ve heard of the noise issue since the noise barriers were installed.
Councilor Prevey: I don’t believe the barriers have worked. The noise is the most apparent around 49-51 Britannia.
Ms. Harris: Mr. St. Pierre did your offices receive the noise complaint?
Mr. St. Pierre: It may have been the Health Department. We have no way to measure noise.
Ms. Harris: We’ll now open the public hearing. Is there anyone else here to speak in regards to the petition? Do any Salem BOA members have further questions?
Mr. Dionne: How can you further mitigate the noise?
Ms. Stevens: We’d investigate through different contractors different mitigation measures that could be implemented. It would likely be another roof top barrier.
Mr. Dionne: You haven’t received any additional complaints since the installation of the barriers?
Ms. Stevens: Not to my knowledge.
Councilor Prevey: It’s not that they haven’t complained, the neighbors have just to fighting this for years. We thought their proposed expansion to the rear of the property was going to resolve the noise issues, but that plan was dropped recently.
Ms. Harris: So we think there were complaints to the Board of Health. Do we know if complaints have been filed with the Police Department?
Councilor Prevey: I’ve encouraged the neighbors to contact the police if they hear the truck unloading outside of the City approved hours.
Ms. Harris: What does the applicant and members think about continuing this item to the next meeting? That way we can get in touch with the Board of Health to better understand their records and the applicant can work with the neighbors to identify additional noise abatement measures.
Mr. Berner: So you want additional information responding to the noise issues generated by the trucks and tanks?
Ms. Harris: Yes. Would you like to ask for a continuance?
Mr. Berner: In the next meeting scheduled for a month from now?
Mr. Sexton: Yes, the next meeting is scheduled for May 15th. The applicant will need to file out a document.
Ms. Harris: Do I hear a motion to approve the continuance request?
Motion: Mr. Duffy made a motion to continue the hearing of the petition requesting Variance for the property located at 96 Swampscott Road, at the request of the petitioner, till the May 15th regular meeting to address the matters discussed, seconded by Mr. Watkins, and a unanimous vote was taken. All the members voted in favor, with a 5-0 vote in favor (Ms. Harris (Vice Chair), Mr. Dionne, Mr. Watkins, Mike Duffy and Mr. Tsitsinos (Alternate) and none opposed. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Ms. Harris explained to the audience that this petition has been continued to the May 15th regular meeting date. We are now moving to the 3rd item on the agenda.
Petition of NATHAN STEIN for modification of a Special Permit per Sec. 3.3.2 of the City of Salem Zoning Ordinance, in order to allow the parking of a dump truck or dump trailer with debris and to allow the occasional millwork and fabrication to be performed on-site at the property located at 77 BEAVER ST. (R-2 Zoning District).
Ms. Harris introduced the petition. She then asked if the applicant was in attendance to present the item.
Nathan Stein (3 Haskell Street, Beverly Farms, MA): I’m in the process of purchasing the property. I run a small residential construction business. As part of this business, if it were allowed to be located here, a construction trailer or dump truck sometime filled with construction debris would be kept on site. Additionally, some millwork may be conducted on-site. According to Mr. Stein, 90 percent of his business’s operations occur on the job site. The current occupant is a roofing contractor and I believe the former occupant was a plumber, another trade.
Ms. Harris: What is the size and how often would the trial be located on the site?
Mr. Stein: We use a small 5’ x 8’ trailer that we place construction debris in. Occasionally, when its not located on a job site, the trailer would need to be stored on site.
Mr. Duffy: Is the trailer open?
Mr. Stein: Yes.
Mr. Watkins: Would the trailer be parked on the street or on the property in question?
Mr. Stein: The trailer would be stored on the property. I believe the current contractor also store a trailer on the property. The reason we’re requesting these minor modifications of the Special Permit is because I read how the permit prevent storage of debris or construction activity on the property.
Ms. Harris: Yes, the current Special Permit does not allow those activities. We have no site plans or drawings for the petition. Do any of the Salem BOA members have questions?
Mr. Duffy: With respect to the construction of milling activities, where would that take place on the site and what equipment would be used?
Mr. Stein: We normally use a table saw or rotor, equipment that a typical homeowner may have in their basement. I currently run my business out of my basement and have never received any complaints from my neighbors. I imagine they don’t know I operate the business there.
Mr. Duffy: So those activities would occur inside the building?
Mr. Stein: Yes. The building is constructed with concrete blocks and has minimal windows and doors. There is a garage door at the rear of the building not facing the street.
Ms. Harris: Are there further questions? Seeing none, Ms. Harris opened the public hearing.
Surrounding Neighborhood Comments: The main concerns raised by the surrounding property owners included: the neighbors were concerned with traffic, noise pollution (both generated by machinery and equipment), visual impacts, blowing debris and sawdust from the site, truck traffic, access to the site, and the general safety and welfare of neighborhood children. It’s a residential neighborhood and this business would reduce the A number of adjacent property owners’ submitted photos for the Salem BOA members to review, the photos were submitted for the record. No members of the public spoke in favor of the petition.
Councilor Prevey: This type of business and the traffic it may create is out of sync with the surrounding residential neighborhood. Based on the concerns raised by surrounding residents I would ask the Salem BOA to protect the quality of life these residents deserve. I’m against this requested petition.
Arthur C. Sargent, III (Salem City Councilor): This is substantially more detrimental to the neighborhood. Allowing this use to change from passive (i.e. storage) to active is one step to close to activities that are increasingly more detrimental to the neighborhood. We need to protect the neighborhood’s quality of life.
Mr. Stein: I sympathize with the neighborhood’s concerns. I have children of my own and would never want an unfriendly business or use to be developed in my neighborhood. However, I believe there is a misunderstanding about what I’m proposing. My operation is similar to a roofer or plumber, most activities are conducted offsite.
Ms. Harris: While I understand your position, it appears there are many residents in the area that are against this proposed use. What do other Salem BOA members think? Additionally, you could request an extension to give you time to speak with the residents.
Mr. Stein: I have talked with a number of the surrounding neighbors and though I’d explained the operation we are proposing. My purchase is dependent on the issuance of this permit.
Ms. Harris: Based on the comments and public opposition, I’m not comfortable voting in favor of this petition. While I’m not sure how the other Salem BOA members will vote, you should be aware that you will need four (4) favorable votes to have the petition granted. Another option you may want to consider is requesting a withdrawal without prejudice of the petition.
Mr. Stein: I guess I will request to withdraw the petition.
Ms. Harris: Does he need to sign something?
Mr. St. Pierre/Mr. Sexton: No signature is needed to withdraw the petition. However, a motion accepting the request should be considered.
Motion: Mr. Duffy made a motion at the request of the petition to withdraw without prejudice the requested modification of a Special Permit per Sec. 3.3.2 of the City of Salem Zoning Ordinance pertaining to 77 Beaver Street, , seconded by Mr. Watkins, and a unanimous vote was taken of all five members. All the members voted in favor, with a 5-0 vote in favor (Ms. Harris (Vice Chair), Mr. Dionne, Mr. Watkins, Mike Duffy and Mr. Tsitsinos (Alternate) and none opposed. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Ms. Harris explained to the public that the Salem BOA would now be hearing the petition for 111-1113 North Street.
Petition of GEORGE and HELEN PAPADOPOULOS for an Appeal of the Decision of the Building Inspector relative to the issuance of the Building Permit and Certificate of Occupancy for the property located at 111-113 NORTH STREET (B1 Zoning District).
Ms. Harris introduced the petition and then asked if the petitioner was in attendance to present the petition.
Atty. Dalton (4 Raymond St, Manchester, NH): I have a brief presentation and then Ms. Papadopoulos has expressed an interest in giving a brief statement at the end of my presentation. He explained why it is believed by his clients that Mr. St. Pierre has made an error in issuing the Building Permit and Certificate of Occupancy for the property in questions. He then proceeded to discuss the Special Permit history of the gas station use at 111-113 North Street. Specifically, Atty. Dalton highlighted the decision’s reference to approved plans for the site and conditions limiting its development (i.e. vegetative buffer). Then Atty. Dalton discussed how the property owners sought a Building Permit from the City to construct an addition to the gas station. It appears the scope of the addition was determined so as not to require a
Special Permit. By allowing the developer to proceed with this expansion is at the root of this appeal. It appears to just be a mistake. Additionally, Atty. Dalton discussed the applicability of the Lussier vs. ZBA of Peabody & Others court case to the petition before the Salem BOA. The remedy at hand for the property owner is to purse a modification of the 1970 Special Permit. Atty. Dalton then discussed another proposed expansion and/or intensification of this site by developing a retail or convenience store use. He also mentioned to the Salem BOA that they should consider the 1970 Special Permit as voided because the property owners has not complied with two conditions indicated on the decision. Greater protections should be provided to the abutting neighbors. Atty. Dalton then discussed the nonconforming status of the property. We are asking the Salem BOA to uphold a decision and conditions within that decision for this Special Permit, by ordering the revocation of
the issued Certificate of Occupancy.
Helen Papadopoulos (14 Buffum Street): Described the history of this issue. Specifically, Ms. Papadopoulos highlighted the elimination of buffer, construction activity and other impacts on the surrounding properties. She provided the Salem BOA with some before and after photos of the site to consider. These photos were entered into the petition record.
Ms. Harris: Opened the Public Hearing.
Surrounding Neighborhood Comments: The main concerns raised by the surrounding property owners included: the intensity of the use, visual impacts, noise from North Street, the removal of the vegetative buffer and the overall impacts on surrounding properties that this use has caused. This is a residential neighborhood and the operation of this use is degrading the quality of life for residents. No members of the public spoke in favor of the petition.
Councilor Prevey: Explained how the property owner’s has completely disregarded City’s requirements degraded the surrounding residential neighborhood. Specifically, Council Prevey mentioned the installation of an illegal drain. A plan developed in collaboration with the neighborhood has been disregarded. The removal of the vegetative buffer has exposed this residential neighborhood to the traffic and noise that is generated on North Street. I would encourage the Salem BOA to support the neighbors, uphold the parameters of the special Permit and grant this appeal.
Councilor Sargent: The increased intensity of uses on this property has become a detriment to the neighborhood. The quality of life for the residential neighborhood has been degraded. I would encourage the Salem BOA to grant this appeal and support the neighborhood.
Atty. Joseph Correnti (63 Federal Street): Atty. Correnti is representing the property owners. He agreed that this issue has gone on for too long. It has been an evolving process. This is not about support neighbors and sending a message, it’s about upholding the law. Atty. Correnti explained why he disagreed with the information and facts presented by Atty. Dalton. Specifically, he stated that the gasoline filling station has been operating since the 1950s, which makes it a legally nonconforming use and not a Specially Permitted use. The Building Commissioner’s interpretation of this is correct. The building on this site is conforming. The retail use is a permitted use on this property as developed. There has never been any abandonment of the gasoline use. From his interpretation, Atty. Correnti explained that the
cases presented are not applicable because they concerned Variance applications. Variances and Special Permits are very different. The Special Permit was for the structure and use (automotive repair) developed in conjunction with the legally nonconforming fueling station. Furthermore, the Building Commissioner is an enforcer of the ordinance and does not have the power the add conditions to a development permit. I respectfully request the Salem BOA uphold the Building Commissioner’s decision to issue the Certificate of Occupancy based on the law.
Ms. Harris: Could you inform the Salem BOA and members of the public on the status of this property in respect to its permit history.
Ms. Stein (Assistant City Solicitor): After review the property records and history of the Salem Zoning Ordinance I can report the following information
- 1954 – A permit was issued for the operation of a fueling station. This permit would have been issued under the 1925 Zoning Ordinance which would have still been in effect.
- 1955 – A gasoline fueling station and service station (meaning repair) were allowable uses on the property. So two separate uses were allowed. This was the year the Salem Ordinance was updated.
- 1970s – The property owners sought a Special Permit to rebuild and enlarge a service station on the property. During this time the gasoline fueling station was still in operation and a legally nonconforming use.
As such, I would have to agree with Atty. Correnti that the site contains a legal nonconforming use (gasoline fueling station) and service station that received a Special Permit for its development. The case law teaches use that changes to zoning ordinances don’t automatically changes what is a permitting or illegal use. But, if you give up the Special Permit then you not required to adhere to the conditions of that permit. Based on this logic, the Building Commissioner’s decision to issue the Building Permit and Certificate of Occupancy was correct. Specifically, this is because the property owner chose to develop a permitted use within the confines of the City’s Ordinance and the Special Permit for the service station was no longer continued. Furthermore, the legally nonconforming gasoline fueling station has
continued to exist since the 1920s.
Ms. Harris: So why was a Special Permit required in the 1970s?
Ms. Stein: If the property owner, at that time, had not wanted to expand or enlarge the service station use then no Special Permit would have been necessary. If nothing changes, nothing would have been required. The present retail use is allowed by zoning, as long as it stays under a certain square footage threshold. The building complies with current dimension requirements in the ordinance.
Ms. Harris: So you are saying that the current property owners can have a fueling station and service station.
Ms. Stein: No, the service station is only permitted through the Special Permit. The retail use is allowed and the fueling station is a legally nonconforming use. In addition, the concerns involving the dumpster can be review for compliance with the City’s dumpster ordinance. Light can also be reviewed. Not all neighborly disputes are municipal disputes. I think some of the difference in interpretation may stem from how far back the applicant goes. I have presented information convers history back to the 1920s and the applicant starts in the 1970s.
Atty. Dalton: I can understand how the Building Permit was issued based on the discussions that have been presented.
Ms. Harris: Clarified the definitions of service stations and fueling stations.
Atty. Dalton: I accept the argument that the fueling station is a grandfathered use. Atty. Dalton then encouraged the Salem BOA to consider the applicability of Powers & Others vs. Building Inspector of Barnstable and its three pronged test.
Mr. Duffy: Is your position that the current fueling station use is tied to the 1970 Special Permit?
Atty. Dalton: Yes, it is my position that the 1970 Special Permit is tied to the fueling station. The uses are interdependent. As such, you can’t make changes without coming before the Salem BOA.
Mr. Duffy: You’re saying the three prong test on Powers vs. Barnstable applies to the case?
Atty. Dalton: If you accept the position of Atty. Correnti and Ms. Stein then yes. As the third prong states, is it different in impact on the neighborhood. Clearly this use has been shown to have impacts on the surrounding neighborhood with the expansion of the building and further intensifying the nonconforming use.
Mr. Duffy: So prongs one and two are immaterial to your argument?
Atty. Dalton: Yes. A nonconforming structure cannot be expanded by right.
Mr. Duffy: I’d like to hear from Atty. Correnti on this matter.
Atty. Correnti: This argument, which is blending the discussion of use and structure, is misleading the discussion. The discussion should be whether the fueling station is a legally nonconforming use and the structure is conforming building with permitted use. In the Powers vs. Barnstable, it discusses specially permitted uses. We don’t have a specially permitted use on this site. The retail use, 2013 zoning, is a permitted use in the B1 zone. As such, this is not a piggy-backing of a permitted use on a specially permitted use. That’s not correct. The building conforms.
Mr. Duffy: Are we dealing with a grandfathered use or a permitted use?
Ms. Stein: It was an allowed use in 1954. Two separate uses were in effect on this site. When the ordinance changes, they became legally nonconforming uses. After reading the 1970 permit, the service station use was allowed to expand through a Special Permit. This fueling station remains a standalone legally nonconforming use.
Mr. Duffy: Does the Powers vs. Barnstable case have anything to do with this case?
Ms. Stein: While I am aware of the case, I would not want to discuss out of turn the applicability of the case. Since the Salem BOA has heard and discussed a number of court cases tonight, I would be willing to review these cases in the context of the petition before the Salem BOA. I can understand the confusion of the Salem BOA.
Atty. Correnti: Powers is about modification of nonconforming uses. In no way has the gasoline fueling station been modified. What is being argued, as I understand it, is the introduction of a second use on the site. Powers does not consider this issue. The questions before the Salem BOA, is whether the Building Commission acted correctly in issuing the Certificate of Occupancy. I don’t believe the applicant’s agent has been clear in showing how the Building Commissioner was in error.
Ms. Stein: We have a building with an allowable use that undertook an allowed expansion under the law. In addition, Ms. Stein informed the Salem BOA that there is hole body of case law the speaks to a statute of limitation on standing by while something is being constructed and then objecting to its development once constructed. No one has raised an issue about the building until now. There was prior enforcement issue regarding the elimination of the vegetative buffer. As such, the Certificate of Occupancy was withheld until the matter was resolved. Since plantings have been installed the sought the Building Commissioners issuance of the Certificate of Occupancy. No other enforcement action was sought regarding the use of the building or the issuance of the Building Permit. There is a timeliness issue.
Councilor Sargent: Discussed the precedence of the language tied to the deed of the property.
Ms. Harris: How do other members of the Salem BOA think about having Ms. Stein review the cases, information presented and the deed so she can provide the board with an advisory summary?
Ms. Stein: I am not aware of any deed restriction. In any case, that is a private matter between property owners. The Salem BOA does not enforce deed restrictions. Are there any open questions beyond examining the Powers case?
Ms. Harris: Do I have a motion to continue the item to the next meeting or do members of the Salem BOA wish to take action on the item? Is the applicant amenable to a continuance of the public hearing?
Motion: Mr. Duffy made a motion to continue the hearing of the Appeal of the Decision of the Building Inspector relative to the issuance of the Building Permit and Certificate of Occupancy for the property located at 111-113 North Street till the May 15th regular meeting to address the matters discussed, seconded by Mr. Tsitsinos, and a roll call vote was taken. All the members voted in favor, with a 5-0 vote in favor (Ms. Harris (Vice Chair), Mr. Dionne, Mr. Watkins, Mike Duffy and Mr. Tsitsinos (Alternate) and none opposed. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Ms. Harris explained to the audience that this petition has been continued to the May 15th regular meeting date.
Petition of MATTHEW BANKO for Reconsideration pursuant to M.G.L Ch. 40A § 16. This Reconsideration request concerns Variance and Special Permit applications denied by the Board of Appeals on December 19, 2012 for the property located at 9-11 OCEAN TERRACE (R1 Zoning District).
Ms. Harris introduced the petition. She then asked in the applicant or agent was present to discuss the matter.
Atty. McCardle (60 Island St., Lawrence, MA): Atty. McCardle, agent for Matthew Banko, began by discussing the previous petition that had been brought before the Salem BOA and was denied. He also discussed the parameters of M.G.L. Cha. 40A § 16, specifically discussing the Planning Board review of the reconsideration petition. Atty. McCardle then explained the basis of the material and specific change. He noted that the previous Special Permit modification had requested striking the “owner-occupied’ requirement from a number of the Special permit conditions because a title insurance company preserved this language as interfering with the future resale potential of the property in the instance of a foreclosure proceedings. The material change in the new petition, as indicated by Atty. McCardle, retains the
owner-occupied language, but seeks clarify of the automatic revision requirement in the instance of foreclosure proceedings and the opportunities available to a future lender. The lender needs to be able to hold the property temporarily until a new buyer can be found. The Lenders will be obligated, just like a homeowner, to sell the property to an owner-occupied tenant.
Mr. Duffy: Didn’t the earlier petition also contain a Variance request?
Atty. McCardle: Yes, but that is not the basis for a material and special change in this petition. The Variance was and should be seen as a totally separate request, and is not being included with this petition. We are focused sole on the Special Permit modification request. According to conversations with the title insurance company this modification as requested should satisfy the needs of future lenders in the instance of a foreclosure.
Ms. Harris: Are there any members of the public present that wish to speak on this matter?
Kathleen Esler (24 Locus St., Beverly, MA): I’m the real-estate agent trying to sell the property for Mr. Banko, and as was stated both potential buyers had issues with their title issuance company due to the language of the Special Permit conditions. The clarification of this language should address the issue.
Chris Banter (9-11 Ocean Terrace): Just before my wife and I were scheduled to close on the mortgage it had been identified that a fatal flaw in the Special Permit condition language was going to prevent the closing. We really like the neighborhood and speak in favor of the petition request.
Joe Banko (9-11 Ocean Terrace): We’re just asking that the language be modified so that in the instance of a foreclosure it doesn’t automatically revert to a two-family structure. This change should allow potential buyers to secure title insurance for their mortgage.
Ms. Harris: Explained how action on this petition will need to proceed. Is there any further discussion on the matter?
Mr. Duffy: It appears to me that the petition before the Salem BOA tonight does represent a material and special change from the earlier petition that was denied. It is much narrower in focus and protects the three-unite structure of the buildings.
Ms. Harris: It sounds as though they are not requesting the elimination of the owner-occupancy requirement.
Mr. Duffy: Does there need to be a motion and a vote on whether the revised petition request should be heard?
Ms. Harris: Yes, we will need to take a vote on this matter before moving forward.
Mr. Duffy:
Motion: Mr. Duffy made a motion to approve the requested reconsideration based on the findings that the new petition represents a material and special change from the previously denied petition, in that the initial petition requested the elimination of the owner-occupancy requirements and the petition being sought today retains the owner-occupancy language and asks for a narrowing of the automatic reversion in the instance of a foreclosure. The motion was seconded by Mr. Watkins, and a vote was taken of five members. All the members voted in favor, with a 5-0 vote in favor (Ms. Harris (Vice Chair), Mr. Dionne, Mr. Watkins, Mike Duffy and Mr. Tsitsinos (Alternate) and none opposed. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Petition of MATTHEW BANKO for modification of a Special Permit condition. Specifically, the modification is to clarify what happens to owner occupancy requirement in the instance of a foreclosure for the property located at 9-11 OCEAN TERRACE (R1 Zoning District).
Ms. Harris: Now we must consider the Special Permit modification petition request.
Mr. Sexton explained that the Salem BOA should consider the requested petition as if it were a new petition before board.
Ms. Harris: Asked whether staff or the applicant has provided draft condition language for the Salem BOA to consider for this request?
Mr. Sexton: Discussed some key ideas that the Salem BOA should consider when developing the revised condition language. But, suggested the Salem BOA consult with the applicant regard exactly what the title issuance companies would or wouldn’t want to see.
Atty. McCardle: Generally speaking, Atty. McCardle explained that the title issuance companies are looking for a temporary waive of the automatic reversion requirement in the instance of a foreclosure.
Ms. Harris: How do we ensure the lender doesn’t disregard the owner-occupancy requirement and rent the foreclosed unit.
Atty. McCardle: I think you could add some language that reinforce the lenders obligation to adhere to the owner-occupancy require for any future buyer.
The Salem BOA crafted language for the condition.
A member of the public suggested the Salem BOA not use the term “bank” in the condition language, but use “lender” instead.
Mr. Sexton also cautioned the use of the word temporary. He encouraged the board to be more precise with their language.
Mr. Sexton restated the condition language, as it had been discussed, back to the Salem BOA.
Ms. Harris asked that some language be added to the end of the condition that held the lender obligated to the owner-occupancy require with all future buyers. Based on discussion I understand the condition to be as follows:
St. Pierre: noted the importance of the automatic reversion language.
Motion: Mr. Tsitsinos made a motion to approve the requested modification of the 2010 Special Permit, with a condition as stated, for 9-11 Ocean, seconded by Mr. Dionne, and a vote was taken of five members. All the members voted in favor, with a 5-0 vote in favor (Ms. Harris (Vice Chair), Mr. Dionne, Mr. Watkins, Mike Duffy and Mr. Tsitsinos (Alternate) and none opposed. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Ms. Harris explained to the applicant and the public in attendance that the decision would be available within two weeks of the hearing and filed with the City Clerk. There is a twenty-day appeal period.
Ms. Harris introduced the continued petition of:
Continued petition of RICHARD JAGOLTA, requesting a modification of a special permit per Sec. 3.3.2 of the Salem Zoning Ordinance, in order to allow the first floor unit of a two-family building to be split into a residential and commercial unit at the property located at 18 BRIDGE ST (R2 Zoning District).
Ms. Harris: Is the applicant here to speak on the petition?
Richard Jagolta (41 Chestnut St, Salem, MA): First I’d like to submit a couple letters to the Salem BOA for consideration in support on my requested petition.
Ms. Harris read the submitted letters of Collin Wynmen (14 Bridge St.) and Thomas Kelly (18 Bridge St.) into the record.
Mr. Jagolta briefly explained the petition being requested. He then highlighted the key points of the supplementary information, which included photos and drawing, provided to the Salem BOA for consideration of this petition. Specifically, Mr. Jagolta discussed the parking arrangement and then noted the commercial nature of the surrounding area.
Ms. Harris opened the meeting up for public comment. No members of the public were in attendance to speak in favor or against the requested petition. She then asked the applicant to clarify some aspects of the parking arrangement as provided.
Mr. Jagolta: Regardless of the tenancy there is adequate space to meet the parking needs on two residential units and one commercial unit. He then discussed other improvements that have been made to the property.
Ms. Harris: How to limit the future tenants of the commercial unit if the computer business leaves so there aren’t any adverse impacts to the surrounding residents. Is there a way the commercial unit could be converted in the future to a third resident?
Mr. Jagolta: Its really not practical for that unit to ever become a residential unit. It would require significant modifications to the structure that would be cost prohibited to make.
St. Pierre: If the Salem BOA decided to allow this structure to contain two residential units and one commercial unit there needs to be some specific conditions on the Special Permit speaking to the limits of those uses.
Mr. Dionne: Does the commercial unit have a restroom?
Mr. Jagolta: I will have to add a restroom for the commercial space.
Ms. Harris: If we chose to grant this petition, I think we should be fairly specific to the allowed types of commercial uses.
Mr. Jagolta: I am amenable to that, but the Salem BOA should give me some options (i.e. professional offices, etc.)
Mr. Watkins: What is the use considered now?
Mr. St. Pierre: A service establishment. Based on the size of the structure, limiting allowed commercial use to service or professional office would be appropriate.
Ms. Harris: What is the size of the commercial space?
Mr. Jagolta: Approximately 390 sq. ft. Whit the needed space to create a bathroom and the layout of the unit, if the Salem BOA allow the unit to be 550 sq. ft. would allow me flexibility.
Motion: Mr. Watkins made a motion to approve the requested modification of the Special Permit for the conversion of the building at 18 Bridge Street and its two residential units and a the home-based business to be converted to a structure containing two residential units and a commercial unit as conditioned, seconded by Mr. Duffy, and a vote was taken of four members. All the members voted in favor, with a 5-0 vote in favor (Ms. Harris (Vice Chair), Mr. Dionne, Mr. Watkins, Mike Duffy and Mr. Tsitsinos (Alternate) and none opposed. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Ms. Harris explained to the applicant and the public in attendance that the decision would be available within two weeks of the hearing and filed with the City Clerk. There is a twenty-day appeal period.
Mr. St. Pierre asked whether the Salem BOA preferred have petitions come before the board as a modification or a new permit.
Ms. Harris asked if there was a motion to adjourn.
Mr. Dionne motioned for adjournment of the April 17, 2013 regular meeting of the Salem Board of Appeals at 9:50 PM.
Motion: Mr. Watkins made a motion to adjourn the April 17 regular meeting of the Salem Board of Appeals, seconded by Mr. Tsitsinos, and a unanimous vote was taken. All the members voted in favor, with a 5-0 vote in favor (Ms. Harris (Vice Chair), Mr. Dionne, Mr. Watkins, Mike Duffy and Mr. Tsitsinos (Alternate) and none opposed. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Respectfully submitted,
Daniel Sexton, Staff Planner
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