City of Salem Board of Appeals
Meeting Minutes
Wednesday, July 17, 2013
A meeting of the Salem Board of Appeals (“Salem BOA”) was held on Wednesday, July 17, 2013 in the third floor conference room at 120 Washington Street, Salem, Massachusetts at 6:30 p.m.
Vice-Chairwoman Harris called the meeting to order at 6:32 p.m.
Those present were: Annie Harris (Vice Chair), Mike Duffy, Tom Watkins, David Eppley (Alternate) and Jimmy Tsitsinos (Alternate). Also present were Thomas St. Pierre, Director of Inspectional Services, Beth Debski Building Salem Coordinator, and Beth Gerard, Planning Department Recording Clerk. Absent Rebecca Curran (Chair) and Richard Dionne.
- APPROVAL OF MEETING MINUTES
Vice-Chairwoman Harris noted a minor non-substantive correction. She then asked if there was a motion to approve the meeting minutes from the June 19th meeting.
Motion: Mr. Eppley made a motion to approve the minutes as corrected, seconded by Mr. Duffy, The vote was unanimous, with five in favor (Ms. Harris, Mr. Eppley. Mr. Duffy, Mr. Tsitsinos, and Mr. Watkins) and none opposed.
Vice-Chairwoman Harris introduced the first agenda item.
Project: A Public Hearing to consider a request for approval of a modification of a Special Permit that was issued pursuant to Sec. 3.3.5 of the Salem Zoning Ordinance to allow the relocation of a stairway originally approved to be constructed on the rear of the structure to the side of the house located at 96 Columbus Avenue (R1 Zoning District).
Applicant: JOHN and KATHERINE MACKAY
Location: 96 COLUMBUS AVENUE
Tom St. Pierre, Director of Inspectional Services, informed the Board members that a revised plan showing the correct dimensions from the property line was submitted at 2:21 PM today. The revised plan shows the correct dimension of 13 feet, not 17 feet as shown on the plan submitted with the application. Vice-Chairwoman Harris reviewed the new and revised plan with Board members.
Hearing opened to public for comment
Katherine MacKay, 96 Columbus Ave, stated that approximately a year ago they were approved for a Special Permit. Since then they have decided that they want to move the stairway to the side of the building
Mr. St. Pierre asked for the dimensions to which Ms. MacKay responded that they are proposing a 30 inch stairway that is within the 10 foot setback.
Dana Ross of Roger Tremblay Contractors, the contractor, stated that the staircase is approximately 11 feet from the setback and added an additional 30 inches from the stairs. He said that it will be within the side yard setback.
John MacKay, 96 Columbus Avenue, said that they originally had stairs at the back of the house but decided to have a small patio there instead. The stairs would have ended at the center of the patio so they decided to put the stairs on the side of the house.
Andy Lyle, 40 Columbus Avenue, stated that it is a spectacular project which enhances the whole house. He felt that having the stairs at the back wouldn’t look good.
Cindy Jerzylo, 17 Bay View Ave, stated that this is a major improvement to the neighborhood.
Mike Swiniarski, 126 Columbus Avenue, stated that he agrees with the neighbors, and wishes the MacKays to continue.
Ms. MacKay said that she hopes that the Board has the letters that the direct abutters have submitted, which included the letters from the Casses and Kleins.
Renee Nowack, 114 Columbus Avenue, said she was afraid to go up the porch before. She looks through the yard where the stairs would be and it looks great.
Mr. MacKay noted that where the stairs were going to be placed was originally in front of the neighbor’s dining room. He doesn’t know if they will see the stairs from where they are going to be placed.
Attorney Jim Fleming, representing George Ahmed, stated that Mr. Ahmed is directly impacted by this request and the rest of the neighbors who have spoken in favor of this project are not directly impacted. According to Atty. Fleming, this project has impacted Mr. Ahmed’s quiet enjoyment and that Mr. Ahmed will be able to see the staircase from a second floor bedroom window. He showed a schematic of the view of the window from the second floor in his house. He stated that the project is already impacting Mr. Ahmed and there is no reason to move the stairway. He then showed another view from Mr. Ahmed’s house and said that thirteen feet is close. He noted that their objections to the entire project is not before the Board as they don’t think that the applicant has proven that a special
permit should be needed. The pedestrian traffic will come within 13 feet of Mr. Ahmed’s house, which is very close. It’s an impact that he doesn’t think the Board should grant relief for. As the project has progressed, there have been numerous calls to the Building Inspector. He stated that the sliding glass door and front stairs have not been built as specified in the plans and submitted to the Board. To move this staircase now to this new location does no good for the public, and further, it is detrimental to the interest of the zoning ordinance. They feel that without meeting those requirements, the Board cannot grant the special permit tonight. He also mentioned one administrative problem that the file was submitted today that is totally different than what had been submitted prior to today. Administratively this is a problem for this hearing. He hopes this demonstrates how this project has progressed.
He asks the Board not to allow this.
Ward 1 Councillor Bob McCarthy, 153 Bay View Avenue, stated that he is an interested observer and he hates to see something like this come up between neighbors. He is happy to see that there is some give and take with long time friends and that a lot of neighbors have spoken. The work that they have done has been an immense improvement. He knows the contractor, it looks good from the street. The MacKay’s are great family people and they are not asking to encroach. They are not asking for an encroachment on the setback.
Attorney Fleming responded that this is not a zoning issue in regards to the side yard setback, it’s a non-conforming use. It is not a side yard issue.
David Eppley stated that he had a procedural question. He is concerned about the notice of the schematic presented at 2:22 pm today, particularly between the boundary line and the current MacKay’s home. He is concerned that they may need to bring this back for a future date because of this change.
Mr. St. Pierre stated that he talked with Robin Stein, Assistant City Solicitor, and her opinion was that the legal notice was published and distributed notifying people that there was a hearing, so the standard notice requirement was met.
Mike Duffy asked how the plan is made available online, to which Mr. St. Pierre responded that it was available at the Planning Department desk. Mr. Duffy asked if a person can sign out the plans, to which Mr. St. Pierre said that the files do not leave the counter. Ms. Debski said that they can get copies of the plans to which she further clarified that due to the turnover in the Planning Department and some confusion the plans weren’t readily available but once they were located, they were sent to Attorney Fleming.
Ms. MacKay offered to explain how that discrepancy occurred. She stated that when they got the complaint from Mr. Ahmed, they quickly photocopied the plans and it was her fault that she copied the wrong one. She quickly rectified it.
Attorney Fleming stated that the requirement is that the appropriate plans are in the files. If it was 17 feet, then that might have made a big difference. They asked for the original file from one year ago which said 13 feet. These distances are ultimately controlling in this. According to Mr. Fleming, the notice that the meeting was held did not convey the wholeness of the petition before the Board.
Ms. MacKay said that she understands what is being said, but anyone who lives in the neighborhood sees what is going on and anyone with any concerns would be here tonight.
Mr. Duffy asked Attorney Fleming if it is his position that a difference between seventeen feet and thirteen feet would have made a difference to their opposition to the project. Attorney Fleming said yes as the difference is very critical and it is right on top of the Ahmed’s property. He noted that the Board had previously granted the special permit and now this is going to add to that, which is a huge difference. He feels that this will impact his client’s enjoyment of their home.
Mr. MacKay responded that Mr. Ahmed is upset with the whole project. The stairs are going to be lower. Everything that will be on the stairs will be lower than what is there now. He emphasized that it’s lower than what is currently there. He would think they would be pleased that they are moving the stairs to a place where they would barely see them. It’s not blocking their view to the street. He then showed a picture demonstrating how the stairs will look from their view. He is just shocked that they don’t want what is there now. They live in the Willows where the houses are on top of each other. He said that Mr. Armand’s shed is on the lot line, and it’s a variance, but he doesn’t care. The lots are close together and you have to deal
with people who want to do work on their house.
Attorney Fleming stated that it’s not the structure that’s at issue, it’s about the traffic that is created by the structure.
Mr. Eppley asked if the traffic pattern would be the same whether the stairs were on the direct side or going towards the house. Attorney Fleming responded that there is a disagreement between the original plans and the new ones. Vice-Chairwoman Harris reviewed the plans. Mr. MacKay clarified the original plans for the stairs. Harris reviewed the proposal. Attorney Fleming said that they still prefer the location on the plans with the stairs in the back.
Mr. Eppley said that he was inclined to bring a motion to table this discussion to the next meeting. Vice-Chairwoman Harris pointed out that no one else has come to testify on behalf of this project and asked Mr. St. Pierre and Ms. Debski if they know of other people that had come in to review the plans, to which both of them said no. Ms. Debski also confirmed that no one in Planning Department said anyone had looked for them. Attorney Fleming corrected her and stated that his client looked at the plans a few weeks ago.
Mr. Eppley moved to table the discussion to the next meeting, Mr. Duffy seconded.
Vice-Chairwoman Harris read from the meeting notice and pointed out that the notice will be exactly the same if the hearing is re-advertised.
Mr. Duffy asked to discuss the motion that is on the table. He stated that from a legal standpoint, the legal requirements of providing notice were met. He asked if people would be swayed either way.
Mr. Tsitsinos noted that someone would ask where the stairs were.
Mr. St. Pierre stated that Mr. Ahmed came in to review the plans and there was some confusion. Ms. Debski reviewed where the discrepancy was.
Mr. Duffy stated that he believes that when the abutter looked at the plan they would have had opposition, though he is not uncomfortable looking at this. He asked if they can say on record that no one else looked at this.
Vice-Chairwoman Harris acknowledged letters from abutters. She then asked if they would approve this knowing that there was a discrepancy in the plans from 17 feet to 13 feet. She said she was not aware of any decisions that say that this is not true. She then asked the Board if they should continue for a month, to which Mr. Eppley responded in the affirmative. Vice-Chairwoman Harris pointed out that it is a full month away.
Mr. Tsitsinos asked if they are in the middle of construction and if so then he is not in favor of continuing.
The contractor, Mr. Ross, stated that the delay will hinder the project significantly. Vice-Chairwoman Harris asked how close they are to completion of the project. Mr. Ross responded that they are 4 days from completion and they just want to finish the job and move on as they are just moving the stairs ten feet from where it currently is.
Mr. Watkins asked if they should just go forward and not re-open the facts, to which Mr. Tsitsinos recommended moving forward.
Ms. Debski stated that if they did postpone, all of the Board members except for Chairwoman Curran and Mr. Eppley would be present, so there would be only 4 people that could hear the petition.
Vice-Chairwoman Harris asked if more discussion was needed or if someone wanted to put forth a motion.
Motion: Mr. Eppley made a motion to continue this discussion until the August 21st meeting, seconded by Mr. Watkins, and a roll call vote was taken. Two of the members voted in favor, (Mr. Eppley and Mr. Watkins) and three members were opposed (Ms. Harris (Vice Chair), Mr. Duffy, Mr. Tsitsinos). The motion did not go forward. The decision is hereby incorporated as part of these minutes.
Vice-Chairwoman Harris asked for a motion to approve the petition.
Mr. Duffy recommended having a discussion on the motion. Particularly, he wants to address the issue of the defect on the plans showing 17 feet and 13 feet. There has clearly been opposition to the original plan, in regards to the relocation of the stairs. Everyone seems to agree that there is an accurate plan that is still within the ten foot setback. He discussed the relocation support and letters in the record, as well as the argument in opposition. In view of the whole record, including the new and old plans, it appears that this change would not be substantially more detrimental than the previously approved plan and that the proposed relocation is not a substantial and material change. He also said that he thinks it is not more obstructive. The foot traffic will go around the porch
into the general area.
Ms. Debski noted that the original vote for the Special Permit was 5-0 in favor. Mr. Duffy said that the motion is on the table to approve the amendment, and that it should be subject to the same conditions as the original Special Permit. He then asked if they need to be read again. Attorney Fleming stated that they would waive the reading of the letters into the record. Ms. Harris noted that the letters came from James and Sisty Klein at 43 Bay View and William and Sallie Cass at 92 Columbus Avenue.
Ms. Harris said that she doesn’t see that it is more detrimental and it is almost a trade off, it is a closer but smaller stair. They have done everything that they can to make it less obtrusive.
Attorney Fleming presented a list of additional conditions to be considered by the Board.
Mr. Eppley asked if all of those are already covered, to which Mr. St. Pierre stated that some are new and some are already covered.
Mr Tsitsinos noted that any changes that they make going forward would have to go before this Board again.
Ms. Harris asked if drainage would be an issue. Drainage would not be changed by the relocation of the staircase.
Mr. Tsitsinos recommended that they stick with original motion.
Mr. Duffy stated that he thought that these were really good neighbors and have a great neighborhood.
Motion and Vote: Mr. Duffy made a motion to approve the petition requesting modification of a Special Permit per Sec. 3.3.5of the Salem Zoning Ordinance in order to allow the relocation of a stairway originally approved to be constructed on the rear of the structure to the side of the house located at 96 Columbus Avenue, subject to the conditions of the original Special Permit approved on July 18, 2012. The vote was unanimous with five in favor (Ms. Harris, Mr. Eppley. Mr. Duffy, Mr. Tsitsinos, and Mr. Watkins) and none opposed. The decision is hereby incorporated and made a part of these minutes.
- OLD/NEW BUSINESS
- ADJOURNMENT
Motion and Vote: Mr. Duffy made a motion to adjourn the meeting, seconded by Mr. Tsitsinos. The vote was unanimous with five in favor (Ms. Harris, Mr. Duffy, Mr. Eppley, Mr. Tsitsinos and Mr. Watkins) and none opposed. Rebecca Curran and Richard Dionne were absent.
Vice-Chairwoman Annie Harris adjourned the meeting at 7:20 pm.
Respectfully submitted,
Beth Gerard, Recording Clerk
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