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Draft Minutes 9/18/2013
City of Salem Zoning Board of Appeals
DRAFT Minutes of Meeting
Wednesday, September 18, 2013

A meeting of the Salem Zoning Board of Appeals (“Salem ZBA”) was held on Wednesday, September 18, 2013 in the third floor conference room of 120 Washington St., Salem, Massachusetts at 6:30 p.m.

Ms. Curran opens the meeting at 6:30 p.m.

Those present were: Rebecca Curran (Chairing the meeting), Tom Watkins, Annie Harris, Mike Duffy, Richard Dionne, David Eppley (Alternate), and Jimmy Tsitsinos (alternate).

Also present were Thomas St. Pierre, Director of Inspectional Services, and Dana Menon, Staff Planner.

Approval of Minutes
No comments or corrections were made by the Planning Board members.

Motion and Vote: Mr. moves to approve the minutes, seconded by Mr. Duffy.  The vote was unanimous with 6 in favor (Mr. Watkins, Ms. Harris, Mr. Duffy, Mr. Eppley, Mr. Tsitsinos, and Mr. Dionne) and none opposed (Ms. Curran abstaining).

Public hearing: petition of ZIAD FOUAD NABBOUT requesting a Variance from Section 4 Dimensional Requirements of the Salem Zoning Ordinance to reduce the minimum depth of the rear yard to ten feet, to allow for construction of a garage at the property located at 86 JACKSON ST (B4).   

Documents & Exhibitions:
  • Application date-stamped 7/24/2013 and accompanying materials
  • Site plan titled “Zoning and Parking” by New England Civil Engineering Corp., dated 7/2/2013
  • Aerial image of 86 Jackson Street and neighboring properties, with lot lines overlaid.
  • Site plan from petition of Ziad Nabbout requesting a Special Permit to allow for a motor vehicle general repair use on the property located at 86 Jackson St.  Site plan titled “Proposed Land Development” by New England Civil Engineering Corp., dated 8/16/2012, last revised 8/28/2012.  This petition was granted with conditions on October 3, 2012.
  • Letter from Diane & Christian DeLorenzo, 10 Calabrese St., dated 9/16/2013
Attorney Joseph Correnti presents the petition.  Mr. Ziad Nabbout, the petitioner, is also present.  Atty Correnti notes that this parcel has been vacant for some years.  He referenced the plan from Mr. Nabbout’s earlier petition for a Special Permit for this property, which was granted with conditions on October 3, 2012.  The building location in the original plan (dated 8/16/2012) created a pinch point between the building and Jackson Street.  Mr. Nabbout could have constructed the building as previously approved by the board in their decision dated October 3, 2012, but has chosen to improve the plan by rotating the building footprint to be parallel with the road, which creates more space between the building and Jackson Street.  The new plan also creates additional parking space.  The requested relief is from the rear setback requirement.  The area behind the property is open, and owned by the railroad.  There are no inhabited direct rear abutters.  Atty Correnti referred to the submitted aerial image.  The lot is irregularly shaped, so to fully utilize the lot the petitioner needs relief from the rear setback requirement.  The petitioner currently works out of the nearby gas station, but is developing this parcel in order to have his own space to run his business.  There will be no gas services at this property – it will only be used for auto repair.

Ms. Curran asks if the land in back of the petitioner’s property is also in the B4 district.

Mr. St. Pierre confirms that it is in the B4 Zone.

Ms. Curran opens up the issue for public comment.

Joseph A. O'Keefe, 28 Surrey Road, expresses his support for the petition.

Todd Siegel, Ward 3 Councilor – His understanding is that this application is just to make the proposed building and property safer.  Councilor Siegel supports the project.  

Diane DeLorenzo, 10 Calabrese Street - What will happen to the existing BP gas station at34 Jackson Street  that the Petitioner currently works out of, and the stripped cars etc. that are there?

Mr. Nabbout, the petitioner - The business will shift to the new property (86 Jackson Street).  He doesn't own the BP gas station property, and is moving his car repair business to his own property (86 Jackson St).  He has a license to have 20 unlicensed used cars for sale at his business at the BP gas station.  At one time he was stripping cars and shipping them overseas, but Mr. St. Pierre (the Building Inspector) came to the station and advised him that it isn’t a permitted use.

Ms. DeLorenzo  states that the licensing board told Mr. Nabbout that he cannot keep used cars for sale on the left side of the building (BP gas station), but there are unregistered cars on the left side of the building.

Ms. Curran asks Ms. DeLorenzo if her concern is that something similar will be happening at 86 Jackson Street.

Ms. DeLorenzo replies that she is.  She describes the stripping of cars and the big cargo storage containers at the BP gas station as being very dirty and junkyard-looking.

Mr. St. Pierre stated that in the previous decision by the Board (filed on October 3, 2012), ththere is a Condition that the “Petitioner shall abide by Section 24-21, Keeping of unregistered, abandoned or discarded motor vehicles, trailers or boats, of the City of Salem Code of Ordinances.”

Ms. Curran clarifies that the use and a building similar to the one shown tonight (but in a slightly different configuration) have already been permitted, with the Condition that Mr. St. Pierre just read.  Those Conditions would still apply to the property.

Ms. Harris requests that Mr. St. Pierre define what is covered under the Condition that he just read.

Mr. St. Pierre states that t Board can add to the conditions from the previous Decision (filed October 3, 2012) if the Petitioner agrees upon it.  Condition number 9 from that Decision states “Petitioner shall abide by Section 24-21, Keeping of unregistered, abandoned or discarded motor vehicles, trailers or boats, of the City of Salem Code of Ordinances.” – That means that you can only keep a car unregistered for 15 days.  That’s separate from a Used Car License, and a Used Car License only covers sellable cars – not cars for parts.

Ms. Curran asks if the prohibition of having a cargo container on-site be covered under that Condition number 9 [in the October 3, 2012 Decision]?

Mr. St. Pierre – No.

Ms. Curran notes that the Board could that to the list of conditions.

Ms. DeLorenzo queries what happens if these activities continue?

Ms. Curran informs her to call the City for enforcement.

Ms. Curran asks the Petitioner if anything has changed in the business that was permitted last September by this Board (October 3rd Decision)?

Atty Correnti confirms that the business has not changed - it will be auto repair use.  The Petitioner is not proposing any sales of used cars on this property – the Used Cars license is for the other property (the BP station).  The Petitioner doesn't own that property, or all the aspects of that business.  He now wants to own his own land, garage, and auto-repair company.  The used car license for 20 cars will stay on the BP lot, it will never move to this lot.

Ms. Curran stated for the record that Ms. DeLorenzo has spoken at this hearing, but the Board also received a letter from Diane and Chris DeLorenzo to the same effect.

Mr. Duffy commented that there is a condition of this property – based on its orientation - that creates a hardship for this design.  It would create a condition on the property that may reduce the safety of vehicle travel through the property.  The variance requested would alleviate this condition by moving the building back and reducing the rear setback, which is really adjacent to a railroad property on which there doesn’t appear to be any activity.  There is no other condition that would be a serious detriment to the public good, or that would nullify or derogate from the intent or purpose of the Ordinance.  The concerns raised in opposition are at least partially addressed by the Conditions previously imposed on the site, and the Petitioner is amenable to the addition of an additional Condition that would prohibit keeping storage bins on the proposed site – which addresses the additional concerns expressed.  These factors weigh for his vote in favor of approving the variance.

Ms. Curran concurs with Mr. Duffy’s statement regarding the hardship of the shape of the lot, and the lack of impact on the public good.

Mr. Duffy moves to approve the petition, with 8 standard Conditions, and 2 additional Conditions:
  • a 9th Condition “Petitioner shall abide by Section 24-21, Keeping of unregistered, abandoned or discarded motor vehicles, trailers or boats, of the City of Salem Code of Ordinances.”
  • a 10th Condition to not permit storage bins to be located on the premises.
The motion is seconded by Mr. Eppley, and was unanimous with five (5) in favor (Mr. Watkins, Mr. Dionne, Ms. Curran, Ms. Harris, and Mr. Duffy), and none(0) opposed.  The decision is hereby incorporated and made a part of these minutes.


Public Hearing: Petition of FRANK LANZILLO requesting an Appeal to the Decision of the Building Inspector in order to be relieved from the requirement to construct a garage on the property located at 11 HUBON ST (R2).

  • Application date-stamped 8/22/2013 and accompanying materials
  • Site plan titled “Foundation as Built Plan; 11 Hubon Street, Salem” by North Shore Survey Corporation, dated 8/02/2013
  • Building plans and elevation drawings titled “Frank Lanzillo; 11 Hubon Street, Salem, MA” by David C. Wyckoff, dated 5/15/2013
  • Building Permit issued to Custom Built Corp., contractor and Frank Lanzillo, owner on 06/17/2013 for the property at 11 Hubon Street.
Attorney Sam Vitali presents the Petition.  Petitioner Frank Lanzillo is also present.  Atty Vitali states that the Petitioner acquired the property in June of this year.  Patrick DeIulis presented this subdivision to the Board of Appeals earlier in the year, prior to Mr. Lanzillo purchasing the lot.  Atty Vitali isn’t aware of any requirement to build a garage stipulated in the earlier Decision regarding this property (see Board of Appeals Decision dated February 29, 2012, for a subdivision at 18 Thorndike Street). The Petitioner wants to build LESS than was originally proposed.  This will make the lot less dense, which will positively impact the stormwater conditions.  It would leave the option open for future residents of the property to build or to not build a garage on the lot.  If there is a requirement for a garage, the Petitioner is asking to be relieved from the requirement.

Ms. Curran asks if the Board approved a plan with a garage

Mr. St. Pierre states that he consulted with the City Solicitor, who determined that the originally approved plan included a footprint for a garage.

Ms. Harris asks if the other houses (in the previously approved subdivision) have garages.

Mr. St. Pierre states the other houses have not yet been constructed.

Ms. Curran asks if there will be the same amount of off-street parking without a garage.

Atty Vitali responds affirmatively.  The driveway will provide the same amount of parking, and the required number of spaces for the residential use.

Ms. Curran, Mr. Eppley, and Mr. Harris express that the Board’s decision could affect the build-out of the future houses planned for the other approved lots.

Ms. Harris doesn't recall having discussed whether to have or not to have the garage at the October 19, 2011 hearing on the 18 Thorndike Street petition.

Ms. Curran opens up the issue for public comment.

Mr. DeIulis, 6 Seemore St - the original applicant for 18 Thorndike Street petition (Feb 29, 2012 Decision).  He is surprised that Mr. Lanzillo has to go through this process.  His recollection of the original application was that the originally proposed footprint was for the maximum footprint that could be fit on the lot.  He believes he even stated at that time that the houses would probably be smaller in reality than they were shown on the proposed plan, due to the density of the neighborhood.  He states that he never submitted a “final plan” – he submitted a rendering or proposal for a typical style home, to give an idea of the dimensions they were asking for.  They wanted to give a buyer the flexibility to build within a footprint that was workable, but the buyer would have the option to build a smaller building within the established footprint area.  They asked for a footprint to be approved, but never specifically asked for a garage to be part of that footprint.

Ms. Harris notes that there are many properties in Salem without garages.

Mr. Watkins states that there will still be enough on-site parking.

Ms. Curran expresses that she sees no problem with the request.

Mr. Eppley also sees no problem with the request, but notes that Mr. DeIulis’ earlier plan submitted to the Board for the 18 Thorndike Street subdivision (as shown in the plan included in Attachment B to the Memorandum to the Board) established five separate lots.  If there are any changes to what's being presented, a new property buyer would have to come in to seek approval for any variations from the plan that was submitted with the original 18 Thorndike Street Petition (by Mr. DeIulis), as the Plan is referenced in the Decision on that original Petition (dated February 29, 2012).

Ms. Harris states that her memory is that the plan submitted with the petition submitted for 18 Thorndike Street was for building footprints of the maximum potential size, not that they would necessarily be built to that size.  She doesn’t recall having any conversation about garages being important to have.

Mr. DeIulis notes that it doesn't say “garage” anywhere on the plan he submitted.

Mr. Eppley states that any new purchaser of a lot has to submit a petition for any change to a previously approved lot plan.

Mr. St. Pierre states that the City Solicitor's opinion was that this was pertinent to the decision, since there was such extensive discussion with the Board and abutters, regarding the layout and density of the lots.

Ms. Curran asserts that for future applicants seeking to make any changes to the building from the plans submitted with the original 18 Thorndike Street petition, they would have to submit an application for an amendment.

Mr. St. Pierre states that it would depend on how the Board rules on this petition.

Mr. Eppley states for the record  that the next time someone appears before the Board, the Board should reference this discussion, so it don't need to revisit the same lengthy discussion.

Mr. DeIulis has interest in this matter as an owner of three lots in the 18 Thorndike Street development.  He hopes that the Board’s Decision tonight will affect the process that owners of any remaining lots would have to go through, so that each successive owner of each lot would not have to go through this same process of first applying to Mr. St. Pierre, who would deny the application, and then require them to petition the Board.

Mr. Eppley states that will have to be the process, because only this property (Lot 1, 11 Hubon Street) is before the Board at this time.

Mr. DeIulis asks why the decision can’t  apply across all of the lots, which were all part of the same approval?  Why would people have to keep coming back?  Can the Decision be worded so that “for this project, there is no requirement for a garage”?

Mr. Duffy states that with respect to the other four lots, there hasn't been any notice that there is going to be any change of condition or change of the Board’s decision relating to those four lots.  There is a concern that we provide an opportunity for the public to weigh in on changes to the plans.

Atty Vitali states that Mr. DeIulis is planning on selling the lots, so he doesn't know what a particular owner will want to build out, he just wanted to show the most flexible maximum.  The way out of it is to put a stipulation that the current Applicant (Mr. Lanzillo) submit an amended plan.  If you had an amended plan submitted by Mr. DeIulis, that was approved, you wouldn't have to confront this again.

Ms. Harris states that the amended plan would have to come from Mr. DeIulis.

Ms. Curran notes that if that was the process, someone might have a different problem with a different property, and they wouldn't have been notified of a proposed change to that other property, because there's only been public notice regarding this one property (11 Hubon Street).

Ms. Harris states that she believes the Board is going to act in such a way that a future Petitioner could use the friendly language from the Board’s action on this Petition to support their subsequent Petition.  The Board can only comment on the plan that is before it now.

Ms. Harris moves to approve a Modification to the Approved Plan from the Board’s Decision filed on February 29, 2012, to eliminate the requirement for a garage, but otherwise being subject to all the other Conditions recorded in that Decision.  Seconded by Mr. Duffy, and unanimously approved with five (5) in favor (Watkins, Dionne, Curran, Harris, and Duffy ) and none (0) opposed.  The decision is hereby incorporated and made a part of these minutes.

Public Hearing: Petition of RPS REALTY & MANAGEMENT requesting a Special Permit under Section 3 Use Regulations of the Salem Zoning Ordinance in order to approve use of the property located at 2-4 LORING AVE (R2) as a Residential Multi-Family dwelling with nine (9) dwelling units.

Mr. Duffy recused himself from the hearing of this petition.
Mr. Tsitsinos is excused from the meeting.

Documents & Exhibitions:
  • Application date-stamped 08/28/13 and accompanying materials
  • Plan titled “Diagonal Parking” by Adams & Smith LLC
  • Mortgage Inspection Plan, by New England Land Survey, dates 05/16/2013
  • “Supplemental Materials & Evidence” packet, with Exhibits 1-9, by Atty. Joseph N. Magner, dated 09/18/2013.
  • Letter from Sam Fischer, 8 Loring Ave., dated 09/14/2013
  • Site photographs of parking area and drive, submitted by Atty. James Peterson at the hearing, on behalf of Patricia Warren, President & CEO of Seaport Credit Union (336 Lafayette Street).
  • Plan titled “Land of Grant Realty of Salem Inc” by R.W. Garrett, Surveyor, dated 05/04/1943 (submitted by Atty Peterson at the hearing)
  • Plan titled “Plan of Land in Salem, Mass Belonging to Eastern Savings Bank” by Bay State Surveying Service Inc., dated 04/04/1986 (submitted by Atty. Peterson at the hearing)
Attorney Joseph Magner presents the petition.  Mr. Julius Sokol, the Petitioner, is also present.
Atty Magner states that Mr. Sokol is the kind of landlord you want in your city.  Photos of the state of the exterior of the property prior to Mr. Sokol's ownership are included in Exhibit 2 of the “Supplemental Materials & Evidence” packet.  Exhibit 3 of the same shows photos of the exterior of the property after improvements were made by Mr. Sokol.  Granting a Special Permit makes sense.
There are discrepancies in the building history.  Exhibit 4 of the “Supplemental Materials & Evidence” packet shows a letter from the building inspector in 1998, which describes 107 Linden street as having 3 units.  Exhibit 5 is an email from Josh Turiel, City Councilor for this ward, expressing his support for this permit, with the conditions that 1) the property must be in compliance with all relevant codes (they are to the best of their knowledge, they have had the building inspected); and 2) it complies with the ordinance stating that no more than 3 unrelated people can live together.  The Petitioner will experience extreme hardship if he is not issued a Special Permit – he will experience extreme loss of income if not permitted to use it fully.  Without a Special Permit, his options for use of the property are to either make it into a non-conforming living unit with more than 3 unrelated persons living in it (but the Petitioner doesn’t want to create a non-conforming use), or to try to market it as a multi-bedroom home.  This arrangement wouldn’t be marketable in this neighborhood.  Exhibit 7, submitted in the “Supplemental Materials & Evidence” packet shows 3 electrical boxes for 107 Linden St.  Regarding parking, there are four (4) spots in the back, which are all for tenants of 107 Linden St.  Signs designating those spots for 107 Linden Street have been put up since Mr. Sokol purchased the property.  The Petitioner recognizes that it’s not the five (5) spots required, but he has dedicated four (4) spots to 107 Linden St.  The residents of the property are students, and many do not own cars – they are just going across the street to the University.  The Petitioner is trying to do the right thing – get the right insurance, and work with the building department.

Ms. Curran poses a question to Mr. St. Pierre - Why are there three (3) separate addresses for one (1) building (107 Linden Street, 2 Loring Ave, and 4 Loring Ave)?

Mr. St. Pierre clarifies that 2-4 Loring Avenue is the designation by the City.  It has 3 mailing addresses.
 
Ms. Curran asks if there is any difference in fire code between 8 and 9 units?

Mr. St. Pierre responds that there is not.
.
Mr. St. Pierre clarifies that the letter in Exhibit 4, from Kevin Goggin (prior Building Inspector), dated August 10, 1998, is a letter of violation, it is not a zoning code letter.  Mr. St. Pierre agrees with Atty Magner that at some time in the mid-90’s a third unit appeared, and there is no record of when it was added.  Approval is required for the third unit.

Mr. Watkins asks Mr. St. Pierre if he is familiar with this property.

Mr. St. Pierre asserts that he was there years ago.  More recently, the assistant building inspector visited the property on an annual inspection tour.  The purpose of that visit is to look for building code violations, NOT to assess the number of units.

Mr. Watkins asks what the square footage of this particular unit is.

Atty. Magner responds that it is approximately 800 square feet.

Mr. Dionne asks how they are to address the parking.

Mr. Harris asks whether the 4th parking space is completely on the property.

Ms. Curran asks if those four parking spaces are for the entire building.

Atty Magner responds that they are.

Mr. Sokol (Petitioner) notes that the property line may not be correct on the submitted plan – there may be some encroachment by the abutting bank (Seaport Credit Union) on the property.  He has chosen not to pursue that issue.  The bank has a right-of-way through the proposed parking area, for travel through to the bank.  The lights for the bank actually sit on his property.  The bank has three entrances.  He’s not here to fight with the bank.  He has been in contact with the bank’s lawyer, and the lawyer claims he has documentation, but he’s never sent it to Mr. Sokol.  Mr. Sokol believes they don’t have a clear answer.  Typically the tenants don't have cars – they walk across to the campus.

Ms. Curran opens up the issue for public comment.

Ms. Curran states that the Board has a letter regarding this petition from Sam Fischer, 8 Loring Avenue.  Mr. Fischer is in attendance, and summarizes his concerns.

Mr. Fischer states that he understands why the Petitioner want to focus on just 107 Linden Street, but it's all one property in an R-2 neighborhood, that's supposed to have either 1 or 2 units in the buildings.  It has to be considered with the other units at 2-4 Loring Ave.  It's giving the allowance to increase the occupancy in a property at which no owner has shown an ability to reign in the occupants.  Regularly partying students keep Mr. Fischer awake - throwing bottles, gatherings of 10, 25, 50 students outside the house.  It's on police record that Mr. Fischer has called the police on average twice a year.  He notes that he could call more often, but that it's a hassle.  Increasing the occupancy is allowing more occupants, and he doesn’t believe that Mr. Sokol has plans to live in the building to enable him to control it.  When there are that many students in a building with no supervision, this is the result.  He applauds the work Mr. Sokol is doing on the exterior, but Mr. Sokol doesn’t understand the impact of living next to this property for 25 years.

Attorney James Peterson, representing Seaport Credit Union, located at 336 Lafayette Street.  Also present is Patricia A. Warren, President & CEO of Seaport Credit Union.  This property, abutting 2-4 Loring Ave, is the only branch of the Credit Union, and it serves their 3,500 members.  Mr. Sokol telephoned Ms. Warren saying that he was going to install a fence and block the back driveway.  Atty Peterson then emailed him a copy of the Credit Union's property plan.

Atty Peterson then entered into the record and distributed to the Board:
  • Site photographs of parking area and drive, including:
  • Photos of a car parked at an angle in the proposed parking spots, presented as evidence of how angled parking will impede the right-of-way
  • Photos of signs currently posted at the proposed parking spots, which read “no diagonal parking”, presented as evidence that the parking problem was noted by either Mr. Sokol or his predecessors.
  • Plan titled “Land of Grant Realty of Salem Inc” by R.W. Garrett, Surveyor, dated 05/04/1943, presented of evidence that the width of the parking area left to 2-4 Loring Avenue is 12.5 feet at most, as the Credit Union’s right-of-way is designated as 14.66 – 15.09 feet in width.  § 5.1.5 of the City of Salem Zoning Ordinance requires a stall depth of 19 feet for angled parking.
  • Plan titled “Plan of Land in Salem, Mass Belonging to Eastern Savings Bank” by Bay State Surveying Service Inc., dated 04/04/1986
Attorney Peterson states that the driveway by 2-4 Loring Avenue has been used by the Credit Union since 1970, and it provides important access and safe egress for the Credit Union.  He notes that if the property lines on the plan submitted by the Petitioner are compared with the plans on record with the Registry of Deeds, the Petitioner’s property plan shows more generous property lines than exist.  A multi-family dwelling is not a permitted Special Permit use under the zoning code, it is a prohibited use.  Even if the use were allowed, a 9 unit building would require 13.5 parking spaces under the zoning code.  There are barely 3 parking spaces along the portion of the land that Mr. Sokol owns.  Seaport Credit Union is opposed the parking plan submitted by the applicant, and is opposed to increasing the number of dwelling units.

Gordon Lothrop, 12 Fairfield St states that he uses the driveway in question all the time.  He thinks that diagonal spaces wouldn't allow cars to get around, but parallel spaces would.

Atty Magner states that the Petitioner has only owned the property for 3 months.  He's trying to do the right thing by applying to the Board.  The bank representation didn't say anything about problems with parking in the neighborhood.  The Petitioner is just asking to make legal what has been in existence since the mid-1990s.

Mr. Sokol, the Petitioner states that he is not here to make more parking spaces, or to take land.  He’s been landscaping, painting, etc. at his own expense, none of which gains more rent.  My understanding is that there's no restriction on which units can use the parking spaces along the driveway.  He does not offer parking in his lease agreements.

Sandy Power, 18 Loring Avenue notes that this house is commonly called the “Animal House”.  Absentee landlordism is a big problem in Salem.  This size rental house needs supervision.  If the Petitioner puts in a 3rd unit, he should also place a superintendent at the property.  He appreciates the aesthetic improvements that Mr. Sokol has made, but his apparent misrepresentation (as argued by Atty Peterson) worries her.

Mr. Eppley asks if the bank has filed any complaints with the police

Ms. Warren states that the Credit Union doesn't object to Mr. Sokol, it objects to the partying, etc.

Atty Peterson states that there is a parking problem around the Credit Union area.  He states that ther isoften trash around 2-4 Loring Ave.

Ms. Warren expresses that she tries to keep all of the parking for Credit Union use on the Credit Union property.

Mr. Fischer points out that the Credit Union wouldn't have complaints filed with the police, as they aren't open during the nighttime hours.

Mr. Sokol, the Petitioner states that keeping the property as a 2 family is going to be worse than having 3 units.  The 2 units would have more bedrooms than 3 units.  Nobody but students would want to rent a 7-bedroom apartment.  The Petitioner would like to request a continuance to revise the parking plan.

Ms. Curran points out that more than 3 unrelated people can live in a unit, so the Petitioner would be limited in his rental options.  Ms. Curran asks the Petitioner to describe the number of units/bedrooms in the building.

Mr. Sokol responds that 4 Loring Avenue has one 1-bedroom units, two 2-bedroom units, and one 3-bedroom unit.  2 Loring Avenue has one 3-bedroom unit.  107 Linden Street has 2 bedrooms on the first floor, 3 bedrooms on the second floor, and 3 bedrooms on the third floor.  This third-floor unit is the unit in question.

Ms. Curran states that the problem is setting a precedent of legalizing a unit that was created illegally.  She notes that it would be a different scenario if it was on a big lot with enough parking.

Mr. Eppley agrees.

Ms. Harris notes that this building is notorious.  He appreciates the applicant trying to fix it up, but he’s not inclined to allow any more units.

Ms. Curran states that her main concern is with setting a precedent (of legalizing an illegally created unit/use).

Mr. Sokol requests a Continuance in order to consider the parking situation and to have a survey done.  

Ms. Curran advises the Petitioner that if he continues, it's the same makeup of the Board.  However, it is the Petitioner’s right to request a variance if he so chooses.  

Ms. Harris states that she doesn’t see the purpose of granting a Continuance.

The Petitioner states that he would like to Withdraw without Prejudice

Ms. Curran asks if there is a motion to approve.

Ms. Harris moves to approve the Petitioner’s request to Withdraw without Prejudice.  Seconded by Mr. Dionne, and unanimously approved.  The decision is hereby incorporated and made a part of these minutes.

Public Hearing: Petition of ELIZABETH BEAVER requesting a Variance from Section 4 Dimensional Requirements of the Salem Zoning Ordinance to reduce the minimum depth of the rear & side yards, to allow for construction of a kitchen & deck expansion, for the property located at 13 OCEAN AVE (R1 Zoning District).   

Documents & Exhibitions:
  • Application date-stamped 08/27/2013 and accompanying materials
  • Photograph of existing deck and kitchen exterior, submitted by the Petitioner at the hearing.
The Petitioner, Ms. Beaver, is speaking on her own behalf.  She states that her family of six (the Petitioner, her husband, their three children and her father-in-law) reside in the house.  The kitchen is very small, and they have explored various options for expansion.  They can’t expand it within the existing footprint of the house, because it would reduce the size of the only full bathroom in the house.  The Petitioner references Plan A-1, included in the application package, which shows the existing first floor plan.  The existing layout of the kitchen is quite tight – when the refrigerator is open, there is not enough space for someone to get around the oven.  Additionally, currently the family has to walk through the father-in-law’s bedroom to access the deck.  Ms. Beaver notes that the first floor will be unchanged.

Ms. Curran inquires as to how many square feet the Petitioner is proposing to add

Ms. Beaver responds that they are proposing to add about 150 square feet (approximately doubling the kitchen size).

Ms. Curran asks about the net increase to the size of the deck.

Ms. Beaver states that the existing deck is 10 feet at its widest point, and 3 feet at its narrowest point.  The proposal is to make the entire deck 10 feet wide.  She has spoken with the neighbors on either side of the property, and they support the addition.  She hasn’t spoken with her rear neighbors about the project.

Ms. Curran opens up the issue for public comment.

No public comment.

Ms. Curran notes that the addition is very minimal.  The deck expansion has some impact as it shades whatever is under it.  There are no abutters here stating any objections.

Mr. St. Pierre states that what is required is a Special Permit for side encroachment, and a Variance for rear yard setback.

Ms. Curran asks if any of the Board members see a hardship to support the Variance request.

Mr. St. Pierre points out that the position of the house on the lot is a hardship – the lot is small, and the house was placed to one side of the lot.

Ms. Curran states that no Variance would be required for expanding the kitchen itself, but it is required for the deck extension.

Mr. Eppley notes that the hardship with the existing deck, as described by the applicant, is that you currently have to travel through the entire house to get to the deck.  The proposed deck expansion improves that condition.

Mr. St. Pierre clarifies that the hardship has to relate to the land.  The hardship would be how the house is situated on the land.

Ms. Harris notes that the requested Variance is minimal - it's only 4.5 feet.  

Ms. Curran asks if there are any additional comments, and if not, if there is a motion.

Mr. Watkins moves to grant the Variance and the Special Permit, with 9 standard conditions, seconded by Mr. Duffy and unanimously approved five (5) in favor (Curran, Dionne, Duffy, Harris, and Watkins) and none (0) opposed.  The decision is hereby incorporated and made a part of these minutes.

Public Hearing: Petition of TWELVETONE, LLC requesting a Modification to a Special Permit under Section 3.1 of the Salem Zoning Ordinance in order to change the use of the property from a non-conforming Commercial use to a Residential Single-Family use, for the property located at 1 PLEASANT ST (R2).

Mr. Steven Spungin, owner of the property and speaking on behalf of Twelvetone, LLC, states that no commercial use has been successful on the property, partially due to the insurance on the building, the high commercial taxes, and the restrictions placed on it by the Special Use Permits.  We would like to restore it back to a single family residential unit.  The property will be more conforming if it returns to its originally intended use (residential).

Ms. Curran asks if there will be any changes to the exterior.

Mr. Spungin responds that there will not be.

Mr. Dionne notes that the building was originally constructed as a residential building.

Mr. Spungin notes that the parking spots immediately next to the building – 1.5 spots – will be for the residential building, the rest of the spots would continue to be used for the music school in the adjacent building.  The Petitioner states that they are either going to rent or sell the property.  Currently, no one will rent it as a commercial space, since they would have to wait months to find out if they can even open their business.

Mr. St. Pierre notes that the residential use would be by-right for the building, but the Board has to reconsider the property as the prior application for non-conforming use considered the entire property (1, 3 and 5 Pleasant Street).

Ms. Curran opens up the issue for public comment.

Ms. Curran, Mr. Dionne and Mr. Watkins state that they see no problem with the request.

Mr. St. Pierre notes that the parking does not conform to the required 2 spaces, but that would remain covered by the Modification to the Special Permit.  If the Petitioner wanted to subdivide the property in the future – making 1 Pleasant Street a separate property from 3 and 5 Pleasant Street – then he’d have to appear before the Board again, and seek relief from the parking requirement of the zoning code.

Mr. Spungin states that there are three separate deeds for each of the three properties (1, 3, and 5 Pleasant Street), so he doesn’t see why they are considered as one property.

Mr. St. Pierre responds that isn’t clear to the Board at present, and his prior application to the Board was for all three properties under one Special Permit.

Ms. Curran clarifies that Mr. Spungin’s current application to the Board is still relevant, and that he can speak with the Building Inspector (Mr. St. Pierre) after the hearing regarding the lot question.

Mr. Duffy makes the motion to approve the petition for a Modification to a Special Permit, with the Conditions maintained from the Special Permit, including the Condition that the one (1) parking space noted on the submitted plans is dedicated for use by 1 Pleasant Street.  Seconded by Ms. Harris, and unanimously approved.  The decision is hereby incorporated and made a part of these minutes.

Public Hearing: Petition of NEW ENGLAND POWER COMPANY d/b/a NATIONAL GRID requesting a Special Permit under Section 3.3.2 of the Salem Zoning Ordinance to allow a new essential services use & extend a pre-existing nonconforming use, for the construction of a new control house with related facilities, for the property located at 57 CANAL ST (B4, R2, and Entrance Corridor Overlay).

Documents & Exhibitions:
  • Application date-stamped 08/28/2013 and accompanying materials
  • Aerial image of the property and immediate abutters, submitted by the Petitioner at the hearing.
Attorney Joshua Lee Smith presents the petition.  Att. Smith notes that the perimeter fence is in need of repair, and those repairs will be included in this project, along with the interior fencing.  Repair and replacement of the existing retaining wall, and installation of a new retaining wall, will also be included.  The project is for a public utility, and it is essential for capacity growth and reliability of the power supply to the City of Salem and the surrounding area.  Many of the existing components on the site are at the end of their useful lives.  Regarding traffic, the facility is unmanned, and will only require occasional maintenance inspections and repairs.  There would be construction vehicles during construction, and the construction working hours will by 7am-5pm, Monday through Friday.  There may be some 10 hour days required, however, and the Petitioner would seek the required variance from the Building Inspector for any anticipated extended hours.  There will be no parking or loading spaces at the facility, and the Building Inspector has confirmed that none would be required.  Interior walkways and driveways within the site will not be modified.  The new building would be brought in one piece to the site – Atty Smith references the photo included in the submission package of a similar control house to the one that would be installed at the site.  If an emergency occurs, national grid will dispatch a crew to the site.  The original substation was built on the site in 1951.  The introduction of the new control house will have no greater impact on the neighborhood than what already exists.  There will be no changes to the topography of the site, and virtually no environmental impact.  Erosion controls will be in place during construction.  Some of the vegetation that is overgrown will be removed, especially in the rear along the residential abutters.  It will be replaced with new landscaping (trees and bushes).  The building complies with the front, side and rear setback requirements of the zoning ordinance.  The building will be 280 square feet, which will be less than a 1% impact on the building coverage of the lot.  Warning signs will be affixed to the replaced perimeter fence.  There will be lighting on the control house, and it will face downward, to illuminate only the control house.  The Petitioner believes that with the existing ambient sound level and the distance from the facility to the residential abutters, no additional noise will be perceived by abutters.  

Mr. Dionne asks if this project is related to the project with the cables under the streets.

Atty Smith responds yes, this substation is one of the termini of the cables.

Ms. Curran asks why there isn’t any screening proposed along Canal Street.

Atty Smith responds that there isn't much existing screening there.
Ms. Curran agrees that is true, but states that it is an entrance corridor, and it’s not the most attractive building, so some screening would be appropriate.  As this project doesn't require site plan review, the Board of Appeals is the only Board the project will have to come before.

Ms. Harris asks if the Petitioner can place screening in the front of the property.

Dan McIntyre, consulting engineer to the Petitioner replies that they did focus on screening on the abutters, but there's no reason why they can’t add screening in the front.  They would be limited in height because of the overhead wires, but they can do some lower screening.  They have proposed chain link fencing.
Ms. Curran specifies that the landscaping should be in keeping with the plants shown in the plan for screening of the abutters.

Ms. Harris asks if the planting can be on the outside of the chain link fence, topped with barbed wire.

Mr. McIntyre responds that the planting would have to be on the inside of the fence.  The fence is right on the property line, and the City has some street trees right on the other side of the fence.

St. Pierre notes that normally chain link fence wouldn’t be allowed along an entrance corridor, but given the safety concerns with the high voltage facility, the chain link is an absolute safety requirement.

Ms. Curran asks if the fence could be moved in, to create room for landscaping on the outside of the fence.  Is there a perimeter/clearance regulation or requirement?

Mr. McIntyre responds that they have to be very careful about clearances to the electrical equipment.  The plans show 15 feet between the building and the fence, and that’s really the minimum distance they can do.  Additionally, plantings right on the outside create a safety concern, with the potential for people or animals to climb up the plantings and over the fence.  The plantings also limit the ability to see what’s going on inside the site.

Ms Curran responds that she’s happy with some supplemental planting, to create screening where they can, understanding that those locations may be limited.

Ms. Curran opens up the issue for public comment.

Mark Borowski, 8 Cypress Street, direct abutter.  The current property owners dug out the land on their side of the fence, and the existing chain link fence is holding up part of his property.  Mr. Borowski’s property is about 6-7 feet higher than National Grid’s property on the other side of the fence.  Is the Petitioner going to build a retaining wall there?  The existing fence can’t hold back the soil adequately.

Mr. McIntyre states that they are proposing to put in a retaining wall on the west side of Mr. Borowski's property.  It will be constructed of concrete block, and will have a chain link fence with barbed wire on the top.

Ms. Curran asks if there any safety precautions other than barbed wire that can be taken when it’s along a residential property line?

Mr. McIntyre responds that they could eliminate the barbed wire along west side of Mr. Borowski's property, as There is another interior fence with barbed wire that could prevent entry from the west side of Mr. Borowski’s property into the equipment area.  There would still have to be barbed wire on the fence on the north side of Mr. Borowski's property.  

Renee Comeau, 7 Lyme Street, asks what the substation is, and why is it being put here?  Her biggest concern is the landscaping, but that has already been addressed here.  

Mr. McIntyre responds that a substation is where the electricity is transitioned from the underground cables to the overhead wires.

Ms. Curran asks what the Petitioner is removing from the site.

Mr. McIntyre responds that they will be removing all of the older equipment that's there, except for the large towers.

Atty Smith adds a note that the control house is shown on the submitted plan in an approximate location.  The building footprint will remain the same, but National Grid still has to complete the design review process, and it's possible that the control house will shift to the east, no more than 20 feet from the location shown on the submitted plans.  

Mr. Borowski notes that currently there is a dense stand of bamboo against the fence along his property.  Is that what will be removed?

Mr. McIntyre confirms that it is.

Mr. Borowski states that it’s fine to remove the bamboo, as long as he’s looking at green, and not chain link fence and power lines.

Ms. Harris asks if the Petitioner can leave the bamboo alone.

Ms. Curran points out that eradicating the bamboo will be very difficult.

Mr. McIntyre states that in order to repair/replace the fence in that area, they’d have to remove the bamboo.  They are willing to accept a Condition requiring additional plantings along the back of Mr. Borowski’s property.

Ms. Curran and Mr. St. Pierre summarize their understanding of the special conditions:
  •  The retaining wall will be constructed on the west side of Mr. Borowski’s property (8 Cypress Street), no barbed wire will be placed on top of the fence along the western side of Mr. Borowski’s property
  • landscaping to be added along the front of the property, and along the rear of Mr. Borowski’s property (8 Cypress Street);
  • The building location may change by no more than 20 feet eastward, and will not be moved closer to Canal Street;
  • The barbed wired on the north side of Mr. Borowski's property (8 Cypress Street) should be angled inwards towards the site.
Ms. Harris moves to grant a new Special Permit to allow a new essential services use, under Section 3, “Use Table” subject to 7 standard conditions and 3 special conditions: The retaining wall will be constructed on the west side of 8 Cypress Street, no barbed wire will be placed on top of the fence along the western side of 8 Cypress Street; landscaping to be added along Canal Street, and along the northern boundary of 8 Cypress Street; The building location may change by no more than 20 feet eastward, and will not be moved closer to Canal Street; The barbed wired on the north side of 8 Cypress Street should be angled inwards towards the site.  Seconded by Mr. Duffy and unanimously approved five (5) in favor (Curran, Dionne, Duffy, Harris, and Watkins) and none (0) opposed. The decision is hereby incorporated and made a part of these minutes.

Ms. Harris motions to grant a Special Permit to extend a pre-existing non-conforming use, under Section 3.3.2 of the Zoning Code, subject to the same 10 conditions placed on the first Special Permit.  Seconded by Mr. Duffy and unanimously approved five (5) in favor (Curran, Dionne, Duffy, Harris, and Watkins), and none (0) opposed.  The decision is hereby incorporated and made a part of these minutes.

Mr. Epply moves to adjourn the meeting, seconded by Mr. Duffy and unanimously approved.  

Respectfully submitted,

Dana Menon, Staff Planner