City of Salem Board of Appeals
Meeting Minutes
Wednesday, May 15, 2013
A meeting of the Salem Board of Appeals (“Salem BOA”) was held on Wednesday, May 15, 2013 in the third floor conference room at 120 Washington Street, Salem, Massachusetts at 6:30 p.m.
Those present were: Rebecca Curran (Chair), Annie Harris (Vice Chair), Richard Dionne, Mike Duffy, Tom Watkins, David Eppley (Alternate) and Jimmy Tsitsinos (Alternate). Also present were Thomas St. Pierre, Director of Inspectional Services and Daniel Sexton, Staff Planner.
Chairwomen, Ms. Curran, called the meeting to order at 6:33 p.m.
Ms. Curran: Explained to the board members and public in attendance that the meeting is being recorded. She then explained to those in attendance that the order of the business, as indicated on agenda, will be slightly different due to a late request of the petitioner for 111-113 North Street to withdraw their petition without prejudice. That being said, Ms. Curran introduced the petition.
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. Curran: Is the applicant or representative present to speak on the requested withdrawal without prejudice for the petition at 111-113 North Street?
Atty. Dalton: On behalf of the petitioner’s, I’d like to request that the Salem BOA grant a withdrawal of this administrative appeal without prejudice. There is no intent to raise the substance of this appeal at any point in the future, thus we are asking that this petition be allowed to be withdrawn without prejudice. The reason for the request is based on the history of infractions connected to this property, which should not preclude or compromise the neighbors from pursuing enforcement action in the future.
Ms. Curran: I have no problem granting a withdrawal, but a withdrawal without prejudice is not typically associated with an appeal. Is there any other reason why we should allow it to be withdrawn without prejudice?
Atty. Dalton: Only the reason I just provided.
Ms. Curran: I don’t see how that is possible, because appeal an appeal must be submitted within thirty days of an action. Once this matter is closed, the appeal period will have expired.
Atty. Dalton: The substance of this appeal is clearly connected to the issuance of Certificate of Occupancy, and once this appeal is withdrawn there will be no recourse on this matter. I’m not aware of any other petitioner that has made a timely appeal in regards to the issuance of the Certificate of Occupancy. This issue would then be closed. The petitioners have concerns of how the property will be operated in the future, and would just ask that this withdrawal does not confuse their future rights to seek enforcement against this property.
Ms. Curran: If you sought enforcement through the Building Department for activities on the property and felt the need to appeal that enforcement action you would be allowed to seek another administrative appeal. I would just be more comfortable granting a withdrawal of this petition with prejudice to give finality to this matter.
Ms. Harris: It sounds to like they have every right to come back before the Salem BOA if there is a new enforcement issue or they disagree with the Building Department’s enforcement action. They’re not precluding themselves by withdrawing with prejudice.
Mr. St. Pierre: That is correct. The petitioner’s or neighbors could seek enforcement action against the property if there is something happening on the property that is perceived as an infraction. By statute, I’m required to respond to that request.
Ms. Curran: Does anyone else wish to speak on this matter?
Atty. Correnti (representing the owners of 111-113 North Street): After the hearing last month, and the work that has been undertaken by myself and the City’s Assistant Solicitor to develop follow up memos for this meeting, it was a surprise to us to see the email requesting withdrawal last night. We respect the petitioner’s right to make that request. As stated by the Salem BOA and petitioner’s attorney, there really is no basis for withdrawing this petition without prejudice. It’s curious to me why the withdrawal wouldn’t be with prejudice. We would request that any decision to withdraw this petition would be with prejudice, to give some finality to the concerns that have been raised. We are, however, prepared to answer any questions of the Salem BOA on the subject matter that was initially
intended to be discussed this evening.
Ms. Curran: Is there anyone else?
Mr. Eppley and Ms. Curran noted for the recorded that they both have completed an Affidavit of Service form acknowledging their review of the prior meeting’s packet, which contained materials for this petition, and the prior meetings official audio record. As needed, this allows both members of the Salem BOA to vote on this matter.
Ms. Curran: Is there a motion?
Motion: Mr. Duffy made a motion to allow the petitioner to withdraw the appeal with prejudice, and noted that there was discussion tonight indicating that this withdrawal would not preclude future enforcement action by withdrawing this appeal, seconded by Ms. Harris,
Discussion: Mr. Eppley encouraged the property owner to be a good steward and neighbor to the Buffum Street area. The removal of the vegetative buffer was not helpful to the neighborhood. Ms. Harris thanked the City’s Assistant Solicitor and Atty. Correnti for providing clarification on the argument that transpired at the last meeting.
Action: A roll call vote was taken, with the Salem BOA members voting 5-0 vote in favor (Ms. Curran (Chair), Ms. Harris (Vice Chair), Mr. Dionne, Mr. Duffy, and Mr. Watkins) and none opposed. The motion was accepted. The decision is hereby incorporated as part of these minutes.
- APPROVAL OF MEETING MINUTES
Ms. Curran and Ms. Harris noted a couple minor non-substantive corrections. Ms. Curran then asked if there was a motion to approve the meeting minutes from the April 17th meeting.
Motion: Mr. Watkins made a motion to approve the minutes as corrected, seconded by Mr. Duffy, and a unanimous vote was taken. All the members voted in favor, with a 5-0 vote in favor (Ms. Curran (Chair), Ms. Harris (Vice Chair), Mr. Dionne, Mr. Duffy, and Mr. Watkins) and none opposed. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Ms. Curran introduced the next agenda item.
Petition of EDWARD POTVIN requesting a modification of a Special Permit per Sec. 3.3.3 of the Salem Zoning Ordinance in order to allow the expansion of a nonconforming structure at the property located at 12 HANSON ST (R2 Zoning District).
Ms. Curran: Is the applicant or representative present to speak on the petition?
Edward Potvin (Executive Director of Base River, Inc.): There are two reasons we’re here. We’re planning to install a handicap stairway to the entranceway of our facility, and our consultants suggested we incorporate a solid wall along both sides of the stairway for the railing to attach too. This wall and railing would provide visually limits to the stairway, and would benefit many of the facilities patients that are diagnosed with dementia diagnosis. Additionally, the proposed 17’ by 15’ enclosure, under the previously approved structural encroachment into the side and rear setbacks, would be used for cold storage of winter snow removal equipment. Access to this enclosed space would be provided through a garage door.
Ms. Curran: How many square feet are you adding?
Mr. Potvin: The proposed enclosure is 17’ by 15’. It doesn’t encroach beyond the approved building footprint.
Mr. Watkins: Where is the enclosure located? Is this development near Butler Street or Hanson Street?
Mr. Potvin: This enclosure will be located near the Butler Street side of the structure, not on the Hanson Street side.
Ms. Curran had the applicant explain the proposed plans. What is the use of the building?
Mr. Potvin: The facility is programed for adults with disabilities.
Ms. Curran: So this won’t intensify the use on the property?
Mr. Potvin: It’s just to facilitate access and cold storage.
Mr. Eppley noted for the record that he lives in the neighborhood and received a notice of this petition. Additionally, he indicated that he does not have a financial interest in the property in question.
Ms. Curran: Are there any further questions?
Ms. Harris: So we approved the addition above. Don’t they need to get a Variance to expand the footprint?
Mr. St. Pierre: No, the footprint of the structure is remaining the same. The petitioner is just looking to enclose the space under the previously approved structural encroachment into the side and rear setbacks.
Ms. Curran: Are there any members of the public present that wish to speak on the petition? Seeing none, Ms. Curran closed the public hearing. Is there further discuss or motion?
Ms. Harris: Isn’t a Variance necessary to expand encroachments into a setback?
Mr. St. Pierre: Yes, normally a Variance is required to allow a structure to encroach within a setback. However, in this case the structure already encroaches and, therefore, requires a Special Permit to be granted for further expansion of the encroaching building.
Mr. Duffy: From the presentation we’ve just heard, it sounds as though the expansion will be constructed within the existing footprint of the previously approved encroaching structure. It looks to be an enhancement, visually, to the neighborhood. The enclosure and stairway railing will provide patients with an added level of safety. There is no opposition present tonight or file prior to the hearing. In my view, this extension could take place and not be more detrimental to the existing structure and neighborhood.
Ms. Curran: I agree. Is there a motion?
Motion: Mr. Duffy made a motion to approve the petition requesting modification of a Special Permit per Sec. 3.3.3 of the Salem Zoning Ordinance in order to allow the expansion of a nonconforming structure at the property located at 12 Hanson Street as conditioned, seconded by Mr. Eppley, and a roll call vote was taken. All the members voted in favor, with a 5-0 vote in favor (Ms. Curran (Chair), Ms. Harris (Vice Chair), Mr. Dionne, Mr. Duffy, and Mr. Watkins) and none opposed. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Ms. Curran explained to the applicant and the public 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. She then introduced the next item on the agenda.
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. Curran introduced the petition and noted that the public hearing on this item was continued to allow the applicant time to examine and address the concerns raised by the public regarding noise and truck traffic. She then asked whether the petitioner or his agent were in attendance to present the petition.
Ms. Harris: We had also asked staff to research whether noise complaints had been lodged with the City’s Health Department regarding the property in question.
Ms. Curran: Yes, I believe there was an email included in our meeting packet indicating that no noise complaints had been received.
Marc Hazel (President of Jacqueline’s Gourmet Cookies): After talking with Councilor Siegel, we addressed all the concerns he had. We installed a noise baffling buffer on one of the tank lines and hired an independent acoustic consultant to verify the noise emissions from the factory. According to the consultant and the neighbors, there was an audible different once the baffling buffer was installed. Additionally, we conducted an internal audit of our gas distributor’s deliveries to confirm they had been adhering to City’s truck delivery ordinance. As the records show, they have not made a delivery outside the parameters of the City’s ordinance. Mr. Hazel also explained how they had required the gas distributor to print the permissible delivery time periods on the invoice following the complaints received
in 2009.
Councilor Siegel: I’ve met with Mr. Hazel and his acoustic consultant to address the noise and truck concerns. At this time, I don’t have any further concerns regarding the project. Jacqueline’s Gourmet Cookies have been a good neighbor and receptive to public concerns. I would encourage the Salem BOA to approve this petition.
Helene Stevens: As the Salem BOA requested at the last meeting, I’d like to submit for the record the noise study completed by the acoustic consultant.
Ms. Harris: Was this study conducted before the third baffle was installed?
Mr. Hazel: No. While the baffles do create a low humming noise, they reduce the noise generated by the pipes. As a result, the off-site noise impacts are reduced.
Ms. Harris: If a neighbor has a complaint, how or who can they contact?
Mr. Hazel: Yes, neighbors can contact use at any time. We try to be very responsive to concerns. We want to be a good neighbor.
Mr. Harris: What happens is a truck arrives after hour?
Mr. Hazel: The distributor remotely monitors the level of the tanks. Based on the concerns raised in 2009, we’ve worked with the distributor to ensure they’re not delivering outside the allowable timeframe permissible by ordinance.
Ms. Harris: There was a lot of frustration presented at the last meeting, and it seems that they’ve really tried to address the neighborhoods concerns. Why was there so much concern?
Councilor Siegel: This is a very active area. I visited the site a couple of times following my conversations with Jacqueline’s and found six other businesses that were operating out of compliance with the City’s delivery ordinance. We did have a problem in the past, but Jacqueline’s has been very responsive at addressing the neighborhoods concerns. I support this business.
Ms. Curran: Are there any other questions for the Salem BOA.
Mr. St. Pierre: We appreciate the petitioner working with the neighborhood and providing this level of information. The City’s noise ordinance is somewhat vague, and really is only enforceable through the time restrictions.
Ms. Curran: Do we want to adopt further restriction as condition.
Mr. St. Pierre: I think if you stipulated a condition requiring adherence the standards and regulations of MassDEP that that should be enough.
Councilor Siegel: I would encourage the Salem BOA to add further restrictions to this business.
Ms. Curran: Are there further public comments? See known the public hearing is no closed. This is a Variance, so we need to speak to the hardship statement, which I think is covered by the limitations of the property and the surrounding existing businesses.
Ms. Harris: The petitioner’s request relates to the expansion of the tanks and not the existing business. Since the tanks are pivotal in the operation of the business, I think that works towards a hardship. I think granting this Variance would not be more detrimental to the neighborhood. They appear to be very responsive to the neighborhood’s needs. We should penalize them for the violations of other businesses.
Ms. Curran: Is there further discussion or a motion?
Motion: Ms. Harris made a motion to approve the requested 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 Road as conditioned, seconded by Mr. Dionne, and a roll call vote was taken. All the members voted in favor, with a 5-0 vote in favor (Ms. Curran (Chair), Ms. Harris (Vice Chair), Mr. Dionne, Mr. Duffy, and Mr. Watkins) and none opposed. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Ms. Curran explained to the applicant and the public 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. She then introduced the next item on the agenda.
Board Elections
Mr. Sexton: Per the Salem BOA’s Rules and Regulations, the Board is supposed to hold elections for Chair, Vice Chair and Secretary at the May meeting.
Mr. Dionne: I nominate Ms. Curran as the Chair of the Salem BOA.
Motion: Mr. Dionne made a motion to elect Ms. Curran as Chair of the Salem BOA, seconded by Ms. Harris, and a unanimous vote was taken. All the members voted in favor, with a 5-0 vote in favor (Ms. Curran (Chair), Ms. Harris (Vice Chair), Mr. Dionne, Mr. Duffy, and Mr. Watkins) and none opposed. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Ms. Curran: Who’s listed as the Vice Chair presently?
Ms. Harris: I am.
Ms. Curran: I nominate Ms. Harris as the Vice Chair of the Salem BOA.
Motion: Ms. Curran made a motion to elect Ms. Harris as Vice Chair of the Salem BOA, seconded by Mr. Dionne, and a unanimous vote was taken. All the members voted in favor, with a 5-0 vote in favor (Ms. Curran (Chair), Ms. Harris (Vice Chair), Mr. Dionne, Mr. Duffy, and Mr. Watkins) and none opposed. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Ms. Curran: Who is the Secretary?
Mr. Sexton: I have come across any records indicating you’ve ever had one.
Mr. Duffy: Is there a description for the Secretary?
Mr. Sexton: Not really. There is a brief statement in the Rules & Regulations that indicates a Secretary is designated by the Salem BOA, and that the Secretary shall read the petition and all correspondence relative to the petition before the public portion of the hearing. He also noted how other boards and commissions have had the Secretary thoroughly review the meeting minutes.
Ms. Curran: This sounds like a holdover from when there wasn’t a staff liaison to the Salem BOA.
Mr. Eppley: Weren’t we going to discuss the Rules & Regulations?
Mr. Sexton: Yes, we had initially intended to discuss them at this meeting. However, there hasn’t been time for staff to work internally to develop suggested changes.
Mr. Eppley: I would suggest we table the nomination of a Secretary until such time that the Salem BOA has time to review the Rules & Regulations.
Motion: Mr. Eppley made a motion to table the nomination of a Secretary until such time that the Salem BOA reviews the Rules & Regulations, seconded by Mr. Duffy, and a unanimous vote was taken. All the members voted in favor, with a 5-0 vote in favor (Ms. Curran (Chair), Ms. Harris (Vice Chair), Mr. Dionne, Mr. Duffy, and Mr. Watkins) and none opposed. The motion was accepted. The decision is hereby incorporated as part of these minutes.
Ms. Harris motioned for adjournment of the May 15, 2013 regular meeting of the Salem Board of Appeals at 7:15 PM.
Motion: Ms. Harris made a motion to adjourn the May 15 regular meeting of the Salem Board of Appeals, seconded by Mr. Dionne, and a unanimous vote was taken. All the members voted in favor, with a 5-0 vote in favor (Ms. Curran (Chair), Ms. Harris (Vice Chair), Mr. Dionne, Mr. Duffy, and Mr. Watkins) 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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