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Approved Minutes 3/19/2014
City of Salem Board of Appeals
Meeting Minutes
Wednesday, March 19, 2014

A meeting of the Salem Board of Appeals (“Salem BOA”) was held on Wednesday, March 19, 2014 in the third floor conference room at 120 Washington Street, Salem, Massachusetts at 6:30 p.m.

Ms. Curran calls the meeting to order at 6:35 p.m.


ROLL CALL
Those present were: Rebecca Curran (Chair), Richard Dionne, Tom Watkins, Mike Duffy and Jimmy Tsitsinos (Alternate). Also present were Thomas St. Pierre, Building Commissioner, and Dana Menon, Staff Planner.


REGULAR AGENDA

Project:        A continuation of the public hearing for a petition requesting a Variance from the provisions of Section 4.1.1 Table of Dimensional Requirements, specifically from the maximum allowed height of buildings, and a Special Permit under Section 3.3 Nonconforming Uses and Structures of the Salem Zoning Ordinance to change from one non-conforming use to another, and to change a non-conforming structure, to allow the conversion of the property to residential use.
Applicant:      ROBERT WILLWERTH
Location:       107 HIGHLAND AVENUE (R1 Zoning District)

Documents & Exhibitions:
  • Application date-stamped January 28, 2014 and accompanying materials
  • Petition of support for the proposed project signed by six abutters, submitted February 19, 2014.
  • Comparative Pro-Forma with estimated costs and revenues based on conversion of the property to 6 residential units and 8 residential units.
Attorney Scott Grover presents on behalf of Robert Willwerth.  Atty.. Grover briefly reviews the application – to convert from an existing non-conforming use as a medical office to another non-conforming use as a multi-family residential use.  They are also seeking a Variance to allow a dormer, to create a functional 3rd floor on the building.  At the previous meeting (February 19th) they proposed 14 parking spaces.  They have a new site plan tonight to provide 16 parking spaces – 2 spaces per unit.  These are small one-bedroom units, so 2 parking spaces per unit should be more than adequate.  If the Board prefers the 16 spaces, we're happy to substitute the new plan for approval.  The second area of concern the Board had expressed was that 8 units was really required to meet the financial requirements of the development.  The Board asked for financial information to justify the request for the variance, which would make room for 8 units.  We submitted by email 2 different pro-formas: one for 6 units, which demonstrates a financial loss, and one for 8 units, which demonstrates a financial profit.

Curran: On the 8-unit pro-forma, the sale price for the units is all the same.  When you do the 6 units, you'd incorporate the attic into the unit size, that’s why they’re different prices?  Atty. Grover notes that is correct.

Robert Willwerth: The building is approx. 7,000 square feet.  Ms. Curran states that in that case the costs look reasonable, and asks for clarification that the project would be a gut-rehab.  Atty. Grover states that it is.  Ms. Curran reiterates that the itemized costs and sale costs look reasonable.  She clarifies that if this were a bigger project the Board might have someone look at this and analyze this for us, but this looks reasonable to me, and I'm satisfied with it.  I think the addition of the 2 parking spaces, even though you met zoning, because of what we heard from the public and the lack of on-street parking, and the fact that even with the additional 2 spaces you can keep most of the landscaping and screening

Mr. Tsitsinos takes his seat at the table.  He arrived late, and waited by the door for the conclusion of the previous statements.

Mr. Watkins – how will the dumpster be screened?  Atty. Grover – it will have 2 layers of screening, with a fence and landscaping.  I would also like to remind the board that the site plan will also be scrutinized by the Planning Board during Site Plan Review.

Ms. Curran asks if there's public comment.  None heard, Ms. Curran closes the public hearing.

Ms. Curran – They are seeking a Special Permit to change from one non-conforming use to another, so it has to be less detrimental, and also a Variance for the third story.  The 8 units will have less traffic and impact than the medical office.  The impact on the neighborhood, from what we heard last time, will be positive.  It will be screened, and will be more in keeping with the residential character.  Other than the dormer, you're not expanding the footprint at all – correct?  Atty. Grover replies that this is correct.

Ms. Curran – on the Variance, the circumstances that specifically affect the building – the main thing is that it's a residential zone, and on a main corridor, and it's a very large building.  Due to the location in a more commercial area (Highland Avenue) and the size of the structure, it would be difficult to convert to a single-family use.  It can be granted without substantial detriment to the public good, and would benefit the tax base.

Mr. Duffy – Agrees with Ms. Curran's points.  On the issue of the Variance – the age, size, location of the building and the set-up of the lot (the hardscape being reduced with landscaping, but otherwise hardscape), and the pro-forma information demonstrating that it would be uneconomical to convert the building to only six units, can support the analysis.

Motion and Vote: Mr. Duffy makes a motion to approve the application for a Variance and a Special Permit, with 9 standard conditions.  The motion is seconded by Mr. Dionne.  A roll call vote is taken, and is unanimous with five (5) in favor (Mr. Watkins, Ms. Curran, Mr. Dionne, Mr. Tsitsinos, and Mr. Duffy) – and none (0) opposed. ~The decision is hereby incorporated as part of these minutes.


Project:        Petition for an administrative appeal of a decision of the Building Commissioner regarding agricultural use of the property.
Applicant:   MICHELE CONWAY
Location:    69 ORCHARD ST (R2 Zoning District).

Documents & Exhibitions:
  • Application date-stamped 2/25/2014 and accompanying materials
Michele Conway, petitioner, and Jim Adams, abutter at 5 Manning Street, present the petition.  Ms. Conway references the letter she submitted in the application.  About a year ago she decided to get chickens.  She called various departments and was informed that there was no ordinance against chickens.  She also saw the 2008 Tuttle Decision, and saw that as long as she wasn't selling eggs the chickens would be considered pets.  Then she was cited by the Building Inspector for having an agricultural use on the property.  The chickens are her pets, and she's not selling the eggs.

Ms. Curran – How big is your lot?  Mr. Adams replies that it is about 7,000 square feet.  
Ms. Curran – what zone are you in?  Ms. Conway replies R2.  Ms. Curran – What happened before [in the 2008 case regarding 114 Federal Street] is that we did say that if you weren't selling the eggs than it was not an agricultural use, and it is your pet.  So you're not selling the eggs?  Ms. Conway – no, I'm not.  Ms. Curran – The Massachusetts General Law on agriculture, MGL Ch128, Section 1A, is very confusing language.  Is that what the Building Inspector is basing the agricultural use on, Tom?  Mr. St. Pierre – it's part of it, yes.  Ms. Curran – so right now, the accessory structure setback would apply, as well as any nuisance ordinances.  Other than that, we don't have presently  any section of our zoning ordinance that pertains to chickens, correct?  Mr. St. Pierre responds that Salem’s zoning ordinance does include Section 3.2.1 Customary Agricultural, Horticultural, and Floricultural Operations of the Salem Zoning Ordinance, which does mention where buildings can be kept.  Ms. Curran asks if that relates to the Section 40A exemptions.  Mr. St. Pierre responds that he believes that it does not, it says that “all buildings shall not occupy a greater percentage of the lot than that allowed in the Table of Dimensional Requirements, no storage of manure or odor or dust producing substance and no building in which farm animals are kept shall be permitted within one hundred feet of any property line, no greenhouse heating plant shall be operated within operated within fifty feet of the property line, and no products shall be publicly displayed or offered for sale from the roadside.”

Ms. Curran – so the question is whether this is considered an agricultural use, and that was our question before [the case of 114 Federal Street, from 2008].  Tom – this is similar to the other case?  Mr. St. Pierre confirms that it is similar in some ways.

Mr. Duffy – what does happen with the eggs from the hens?  Ms. Conway – I consume them myself, or if I have extras, I give them away.  Mr. Adams adds that he has received some.

Jim Adams, 5 Manning Street – I'm a direct abutter, and I’ve been helping Ms. Conway with the chickens.  There are times when the chickens don't lay eggs (for example, the winter).

Ms. Curran opens the public comment period.

Sally Wilson, 37 Dearborn St – have any of the neighbors complained?  Ms. Conway – just one next-door neighbor.  Ms. Wilson – I'm in favor of chickens in the neighborhood.

David Boucher, 13 Manning Street – I live right behind them, and I have no problem with the chickens.

Kayla Kirkpatrick, 29 Dearborn Street– bikes by there all the time, didn't even know there were chickens there until we got the legal notice for the hearing.  Happy to have them in the neighborhood.

Janet and Clayton Greene, 72 Orchard Street – live directly across from the property.  We are in favor of the chickens. You don't hear them, you don't smell them, you don't see them.  They would be a wonderful and delicious pet.

Cindy LeBlanc, 73 Orchard Street – Never hears the chickens.

Josh Turiel, Ward 5 City Councilor, 238 Lafayette Street - I support backyard chickens, and having eggs as a bonus.  I would also hope that we would, on the legislative side, we would come to have reasonable guidelines, so that a few chickens or a couple of rabbits would get lumped in with “agricultural use.”  I understand why people have to come in here on the appeals process, but if there's something we need to do on a common-sense basis to work with the ZBA to have these things set up, then we should do it.  I'm in favor of this appeal being granted.

Marcie Clawson, 46 Dearborn Street.  We moved to Dearborn from an R2 neighborhood, with 5 chickens that we’d had for four years.  Two neighbors at our Dearborn home were very much against us having them.  We had to get rid of our family pets.  They've been moved to another property somewhere else in Salem, and we still visit them.  I think it's too bad that a neighbor can prohibit chickens.  I'm in favor of the chickens, I think they're good for families, wonderful pets.

Kevin & Kristin Cordy, 1 Orchard Terrace, present a slideshow.  The abutters' appeal is that the poultry she purchased are pets.  It is clear that the ordinance was established to protect the rights of neighboring abutters.  Whether or not the eggs are used for food or are sold is not the issue.  MGL Ch128 Section 1A does not allow the separation of food into primary or secondary purposes.  If I bought a cow and used it to mow my lawn, it would still be an agricultural use.  We have experienced chronic noises with the chickens 5 feet from our property line.  We experience the noise every day.  It interferes with our life, and my wife's ability to work from home.  We can hear it from all over the house, including in our bedroom.  Mr. Cordy plays a sound recording of the chickens from the bedroom.  That can go on for minutes at a time.  Dander – we do get feathers on our property.  Odor – frequent noxious odor perceptible on our property.  Disease – the coop is 5 feet from our property line.  Immuno-compromised individuals should not be in contact with poultry.  We cannot bring an infant onto our property.  Mr. Cordy shows an aerial showing the present location of the coop, and where the coop would have to be located if it were considered an agricultural use (100 feet).  If the applicant sold 1 egg, she'd be required to meet the agricultural requirements.  Chickens are not customarily considered pets.  If they are pets, what are the rules regulating them?  Whether they are pets is irrelevant – the law is clear, poultry is defined as livestock.  The impact on the quality of life of my wife and I is the same.  It has been six years since the Board ruled on 114 Federal St.  In that time it has submitted no rules to the Attorney General regarding this issue.  Is this a zoning board issue, and not an issue for the Board of Health?

David Eppley, Ward 4 Councilor, 69 Boston Street #2 – in support of approving the appeal, on behalf of the chickens and the applicants.  I appreciate the presentation that was just made, but it seems that you have a precedent that is fairly straight forward.  That being said, with some of the issues being stated, maybe as a City Council we need to pass an ordinance to make it clear that chickens are welcome.  One of the things that the abutter mentioned is that we've gone from an agragrian community to an urban community.  That's true, but just up the street, there are farms in Salem.  Having poultry is not something new to Salem.

Anthony Zietman, 395 Lafayette Street – I'm a doctor and a chicken owner.  Poultry offer no particular threat, and no more than cats or dogs.  We far more often see things resulting from cats or dogs, and we rarely, if ever, see anything resulting from chickens.

Janet Greene, 72 Orchard St – it was brought up that we need regulations to state exactly how they should be cared for.  That may be true, but I don't see any specific guidelines pertaining to other family pets.  I think that it should be no different chickens, and anyone , as with any pet, can report a health concern.

Kristin Cordy, 1 Orchard Terrace – I am aware there are a lot of person opinions here tonight, but the law is clear.  They are farm animals under state law, and under Salem law.  The abutter does not have the room to meet the zoning code.

Jeff Brandt, 3 Lynn Street – The board thought about this several years ago with the Tuttles.  We have chickens, my kids love them.  They've learned so much from having them.  They've improved our life.

Clayton Greene – 72 Orchard St – we've been living in that house for years, and we have many longtime friends in the neighborhood.  I raised chickens when I was a kid.  Chickens sleep at night.  If you have a rooster, which she doesn’t, you can say they wake me up.  The way the mesh is on the coop, the feathers would not be getting through there.  Any feathers in the yard would be from birds.  

Stan Franzeen, 34 Daniels St – I live in a condo, I have no yard.  I love that there are chickens next door.

Jenny Lynch, 38 Charles Street – in support of the chickens.  Chickens go to sleep with the sun.  If there's a noise complaint, you could certainly raise that to a police officer, but I would find it hard to believe it would be breaking the decibel level.

Justin Graniss, 3 Fairfield Street – children in this electronic age do not have the initiative to go outside.  If you have chickens, then you would have the initiative to go outside.

CJ Karsh – 76 Memorial Drive – I want to question the clarity of the law that says that chickens are livestock.  According to the MGL cited, technically if you have a rosebush you are committing an act of agriculture.  “the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural, aquacultural, floricultural or horticultural commodities”

Kathy Karsh – 76 Memorial Drive – adding onto that – continues reading the MGL.  ~“the … growing and harvesting of any agricultural, aquacultural, floricultural or horticultural commodities” - that definition would include the growing of tomatoes, rose bushes, etc.  This is an incredibly vague, inarticulate definition of agriculture.  You can't have furbearing animals.  So if you have a pet bunny, ferret, or chinchilla, that wouldn't be allowed.  How far do you go in upholding the letter of the law?  I am in support of Michele Conway keeping her chickens.

Mr. Cordy, 1 Orchard Terrace – the law says that “Customary agricultural, horticultural and floricultural operations are allowed” – a garden, growing vegetables, growing flowers are allowed.  As far as the health cases, not as many people keep chickens as keep cats or dogs, so you would see more cases with cats and dogs.

Burt Haskins, 22 Larchmont Rd – The MGL references the people producing the commodity, and references farmers.  These folks are not farmers.  It's important to separate the issues of noise and sanitary.  For example, there's nothing preventing them from getting two large dogs and having them bark all day long.  So until it exceeds the noise ordinance, there's nothing you could do about that.  Putting a pet in the backyard is a customary use.

Donald Moore, 73 Orchard St – I immediately abut 69 Orchard on the northwest side.  As far as the noise is concerned, the chicken house is located on the side away from us (maybe 60 feet away), I've only heard the chickens once in the past year.  I don't doubt that the Cordy's hear noise, as it's closer to their property, and the prevailing wind would blow the odor in that direction.  But we don't have any complaints.

Maura Murphy, 70 Dearborn St.  We are backyard chicken owners.  There are more people in the city than you'd think who have backyard chickens.  Her daughter visited chickens at a local farm every day, and would help with the chickens.  Ms. Murphy erroneously believed at first that chickens are dirty.  If you keep your chicken coop and run clean, rodents aren't a problem.  Finally the daughter got her own coop, run, and chickens.  The chicks became members of the family, and they were named.  They weren't in it for the eggs.  As the flock grew, they checked with the neighbors to make sure there were no noise or other issues.  They kept the chickens in the coop until 7:30 weekdays and 8:30 weekends.  When they're out, they're in an enclosed run.  When you buy a house, and you see something there, it's part of life.  I have a train that runs by my house, and I chose to live there, and I have to deal with it.  For example, an air conditioner could be an annoying noise.  Chickens aren't an annoying noise.  If you do it right, whether you have kids, dogs, or chickens, you need to respect your neighbors.

Dan LeBlanc, 73 Orchard St – I live directly above the chickens.  My skylight is open.  I love the little noises of the chickens.

Jim Adams, 5 Manning St – presents a signed document stating no problem with the chickens, signed by abutters.  Mr. Adams also works at home, and has no problem with the noise

Charlie Wilson, 69 Dearborn St, directly across from Maura (Murphy).  I didn't even know she had chickens.  As she said, the train is more annoying than any natural chicken noise.  I'm also a bird watcher, and I bet my bird feeders create more of an issue with “bird turds” than their coop.  I see how her daughter's face lights up with the chickens.  They're definitely pets.

Mr. Cordy, 1 Orchard Terrace – we're not arguing against backyard chickens.  We are arguing that 5 feet is not an adequate distance to an abutting property.  People who live farther away from the coop are saying they have no problem.  AC and kids playing are noises one expects to hear in an urban environment, barnyard noises are not.

Beth Gerard, Ward 6 Councilor, 49 Larchmont Road – my in-laws live next to folks who have chickens, as does one of my friends, in California. Very small lot sizes, with chickens.  The only reason I know those chickens are there is because they've been pointed out to me – no noise, no odor.  When I was around door-knocking for election, I never knew there was a coop there until it was mentioned.

Marcie Clawson - I wanted to speak regarding the noise.  We had chickens for 3 years.  The noise you hear is a chicken laying an egg, and they make the noise for maybe 3-4 minutes.  With 4 chickens, it would happen maybe 3-4 times a day.

Nicole McLaughlin, 4 Roosevelt Road – I hear the issue around working at home, and noise, and the issue of concentrating.  When I was working at home, there were barking dogs in the neighborhood.  Ultimately I got an AC, to help me concentrate, because I didn't feel that I could go ask people to get rid of their dogs.  I do believe that chickens are pets.  I think that's really what it turns on  -the issues with noise and cleanliness are the same as

Cindy LeBlanc, 73 Orchard – I happen to know the chickens all have names, I've seen them sitting with the chickens petting them in the back yard.  They're certainly pets.

Maria Voss,  2 Roosevelt Road – adopted the chickens from Marcy [Clawson].  I couldn't believe she couldn't keep them, and I love having them.  I didn't even think to ask my neighborhood about having them when I first got them.  Later I went to talk to the neighbors, and I have to say I'm very lucky.  I feel sorry for Michelle, I'm here to support her.  And I want to thank my neighbors, who are amazing, and babysit the chickens.  

Chris Leblanc,  20 Southwick Street.  I think the 100-foot setback would be excessive.  I don't know many people in Salem that could meet the 100 feet requirement.  I am for the chickens.  If we do move forward, we should revisit that standard, and adjust it to something that would be more appropriate for Salem-sized lots.

Jenny Hobbs, 20 Southwick Street.  We have chickens, they are about 10 feet from our bedroom.  I don't hear them in the morning until I go out in the morning.  We have one neighbor who loves the chickens and the sound, she doesn't like it when the dog barks, though.  

Nancy Moore, 73 Orchard St – we have a cherry tree in our sideyard, and we have a lot of birds in there chirping a lot of the day, and so far no one has asked us to cut down our chair.

Heather Maitland, 23 Cedarcrest Ave – in support of chickens and the noises they make.  Sometimes crows and seagulls bother us, but there are all sorts of noisy animals in our area.  We want people in Salem to be able to have chickens.

Jim Adams, 5 Manning Street – just to clarify, initially the coop was about 5 feet away from the property line, and Mr. St. Pierre’s first letter instructed us to move it.  Now it's about 15 feet from the property line.

Frank Murphy, 70 Dearborn St – My only quest is why the animal officer isn’t involved in this kind of conversation?

Ms. Curran – closes the public comment.  

Ms. Curran – I was here in 2008.  In her mind this situation hasn't changed, an agricultural use doesn't exist, and I'm in favor of overturning the Building Inspector's decision.  However, I recognize that there are some issues that need to be dealt with here, as we only hear about this when abutters are having problems.  It would be something for the City Council and the Board of Health to deal with.  I did search for zoning ordinances and chickens.  Someone who searches for it would come to the conclusion that there are no zoning ordinances in salem relating to chickens.  The issues raised would pertain to any pets – dogs or anything, but the issues raised should be addressed.  I don't think this is an agricultural use.  Even though chickens weren't customary, they are customary now.  There are a lot of chickens here, and there should be some regulation.  Right now I think they exist legally.

Mr. Watkins – I don't think there's a clear agricultural use here.  The eggs aren't being sold.  The chickens seem to be living there as pets.  I concur with how the board voted in 2008, though I wasn't on the board then.  I would ask that the City Council give us a little more guidance in establishing a chicken ordinance.  Beverly and Hamilton have one, regulating the number of chickens and how far they have to be from the property line.  We need a clear ordinance to apply in the future, for this board and future boards.  

Mr. Duffy – I think it's evident from the support here tonight that the City of Salem obviously is not un-friendly to chickens.  I do want to speak in defense of the enforcement issued.  In looking at the agricultural uses – there is one referring to customary agricultural, floricultural, and horticultural uses.  We just don't have anything pertaining to this situation in our zoning ordinance.  I think it sounds like it's at least on the agenda for city council and the City to look at.  For now, we do have this very vague statement in our ordinance.  I can see how someone could construe the ordinance to mean agriculture – it doesn't define scale.  The eggs are used for food purposes.  But what's the difference really between a pet chicken and an agricultural pet.  We don't have anything telling us the difference.  Is it really in naming it that it's transformed from an agricultural animal to a pet?  That's a tough argument to make.  There's also been some expression that a rooster would present a different issue.  We don't have anything saying that a rooster can't be a pet.  That's a problem.  There's nothing that tells us numbers, distances, health issues, etc.  All this needs to be resolved.  I understand the alternative position here – there's a relatively small number of chickens being kept, it's happening a lot in the community.

Mr. Dionne states that he believes that the board should limit the number of chickens allowed.  Ms. Curran clarifies that the Board can't put conditions on a Decision on an appeal of the decision of the building inspector.  Mr. St. Pierre states that there is a SP for agricultural use in an RC and R1 zone.  Ms. Curran replies that she thinks this is a different situation.  Mr. St. Pierre disagrees.

Motion and Vote: Mr. Watkins makes a motion to approve the petition of Michele Conway for appeal of the decision of the Building Inspector.  The motion is seconded by Mr. Dionne.  A roll call vote is taken, and is passes with  four (4) in favor (Mr. Watkins, Ms. Curran, Mr. Dionne, and Mr. Tsitsinos) - and one (1) opposed (Mr. Duffy).  The decision is hereby incorporated as part of these minutes.

Ms. Menon mentions that the Board neglected to read letters submitted in support.  Ms. Curran submits the letters to the record.

Project:  Petition requesting Variances under Section 4.1.1 Table of Dimensional Requirements of the Salem Zoning Ordinance to grant relief from the minimum lot area, minimum lot area per dwelling unit, minimum lot frontage, and minimum lot width requirements.
Applicant:  ANDREW PERKINS
Location: 15 CHERRY HILL AVENUE and 21 VALLEY STREET (R1 Zoning District)

Documents & Exhibitions:
  • Application date-stamped February 25, 2014 and accompanying materials
  • Additional plot plan detailing proposed location of parking on propose 15 Cherry Hill Avenue parcel
  • Map showing relative size of lots in the surrounding neighborhood
Attorney Scott Grover presents on behalf of Mr. Perkins the applicant, who is also in attendance.  Mr. Perkins owns the property at 21 Valley Street.  This particular property, in the R1 zoning district, has two addresses, as it has frontage on both Cherry Hill Avenue and Valley Street.  There's an existing home at the valley st address, which Mr. Perkins is renovating.  Originally this lot was 2 separate lots, when it was laid out in the 1920s.  In the 1950s they came into common ownership, which caused these lots to merge for zoning purposes.  They are considered a single lot for zoning purposes.  This area should be familiar to the board, as a few months ago the board heard a petition regarding a nearby lot (13 Cherry Hill Ave), and the board allowed that petition to divide into two lots.  Mr. Perkins is seeking relief to allow re-subdivision of this lot along the original lot lines when the lot was created.  Atty. Grover references the plan submitted with the petition, noting the proposed new dwelling location and associated parking.  The proposed building meets the front, side and rear yard setbacks.  It does not comply with the required lot area, or with the current requirements for frontage or lot width.  Like the other lots in that area, they were 50 feet wide.  We are looking for a variance from the minimum lot area, minimum lot area per dwelling unit, and minimum lot frontage requirements.  Atty. Grover refers to the elevations submitted with the application, showing that it's a narrow house to suit the dimensions of the lot.  We need to demonstrate that there are special conditions here.  You can see that the lot is a very irregular shape.  What makes it even more unusual is the fact that it has frontage on two different streets.  I can't see a single other lot in the area that has that feature.  We also have to establish a demonstration of hardship.  In this case, the hardship is really that the whole back part of the lot, because it's very narrow, doesn't add any value to the property.  It's not useable as a yard.. The only conceivable thing you could do is maybe add a garage.  It really doesn't add any value to the property.  So any owner of this property is deprived of any financial benefit of that back part of the parcel.  We also need to demonstrate that this wouldn't be detrimental to the public good or derogate from the zoning ordinance.  I've highlighted lots in the neighborhood that are the same size or smaller than the proposed lots would be.  The proposed lots would certainly be consistent with the size of the lots in the neighborhood.  The intent of the zoning ordinance is consistency within a zoning district.  These proposed lots wouldn't be inconsistent with the area.  I've also highlighted all of the existing lots in the neighborhood that don't comply with today's zoning.

Ms. Curran:  I don't think that having a long lot is not a hardship, though it may not be convenient.  I do see the irregular shape of the lot and the frontage on two streets, it's unique in that way.  The existing house is in bad shape and needed to be renovated?  Atty. Grover – yes.  I see that the back part of the lot is of no use to the property.  There is a line of cases out there is that the standard for hardship when applied to dimensional variances is much less demanding than the hardship required for a use variance.

Mr. Tsitsinos – I agree.  I know the property.  It's very long and narrow, it's kind of a waste back there.

Mr. Perkins – you can't use it as your yard – it's too long.

Ms. Curran – having a big yard is not a hardship.  Atty. Grover – it's a big, unusually shaped lot.  Ms. Curran – yes, but we don't want every merged lot coming back before the board.  I do see it as unique in some ways.

Mr. Dionne – the adjacent property is basically the same size.  Ms. Curran – no problem with the concept of it, it's just getting to the hardship.

Mr. St. Pierre – is the approval being submitted for the footprint, or for the home in the drawings?  Atty. Grover – we're willing to commit to the structure shown in the drawings.

Mr. Watkins – please clarify what we're voting on?  A Variance for the lot on Valley Street?  Atty. Grover – in addition to the variances needed for the new Cherry Hill lot, you need a variance to allow for the reduction in size of the valley street lot.  

Nancy Pelletier, 17 Cherry Hill Avenue.  Has lived there for 25 years.  The seller of our house told me that was an unbuildable grandfathered lot.  Now we're finding that someone wants to build on it.  By the way, they have always cut the grass all the way across the lot.  Also, the proposed house, which would be 15' from our house, would block all the good light.

Atty. Grover – one point to consider, on the plan submitted to the board, the house is located 20 feet from the street, which complies with the front yard setback.  There's plenty of room to move the house back, and still comply with the rear yard setback requirement (30 feet).  Would it satisfy your concerns if we moved the house further back, so it wasn't in line with your house?

Richard Pelletier, 17 Cherry Hill Ave – I do want to commend Mr. Perkins.  He was very informative, letting the neighbors know.  He does show concern.  After living there for 25 years, the house would be 15 feet from ours.  There really aren't houses like that down, like, Derby Street.  That street is a short-cut to other neighborhoods, and it gets congested there.  Would be more congested with another house there.  A similar case came through before, and was approved by the board.  It was appealed to the court, and the judge overturned the decision fo the board, saying that it was a grandfatehred lot.

Paul Dulong, 22 Cherry Hill Ave, directly across the street.  Agrees with Mr. Pelletier.  It is a busy street, and to add houses, families, kids – there are no sidewalks.  Kids use it as a shortcut to school.  Any structure they put there, we'd be concerned with lighting.  When they plow the street in the winter, it's one-truck wide.  I think it's a safety consideration.  

Ms. Curran – it is not a bad proposal, but I don't see a hardship.  

Mr. Watkins – concurs with Ms. Curran.  It's a good project, just having a hard time identifying the hardship.

Atty. Grover – when it comes to dimensional variances, there are clear cases showing that the hardship can be relatively minor.  You have such an unusually shaped lot.  Perhaps we could work with the neighbors to mitigate the impact by moving the house back.  Perhaps we could come back to the Board after we've gotten more support from the neighbors.

Mr. Watkins – but even with more support, Chair Curran, there would still be the issue of hardship.

Atty. Grover – the hardship has to be created by the unusual condition of the lot.  The irregular shape and the dual frontage create an unusual condition.  Also a financial hardship by depriving the owner of much of the value of the property back there.  It's probably similar to the hardship in the 13 Cherry Hill Ave case, where there's a very large lot that lost much of its value through the merging of the lot.  We're willing to work with the neighbors.

Ms. Curran – it's not about the neighbors for me.

Atty. Grover suggests continuing to the next meeting, to both work with the neighbors and to work to better articulate a hardship for the Board.  Mr. Watkins states that he would be in favor of allowing that, as the Board has done it before.

Motion and Vote: Mr. Watkins makes a motion to allow a continuance to the next regularly scheduled meeting on April 16, 2014.  All in favor, none opposed.  The motion carries.


Project:  Petition requesting Variances under Section 3.3.4 Variance Required of the Salem Zoning Ordinance to allow an extension & structural change to an existing non-conforming structure for the addition of a second floor and front and rear exterior stairways that increase the existing encroachment on the required minimum depths of the front and rear yards, to the existing single-story building.
Applicant:  DAVID FRANK
Location:  77 BEAVER ST (R2 Zoning District)

Documents & Exhibitions:
  • Application date-stamped February 25, 2014 and accompanying materials
  • Additional elevations submitted at the meeting.
  • Photo of existing building & conditions.
Attorney Scott Grover presents on behalf of the applicant, David Frank.  The existing building is a 1-story garage, used for the last 10 years by a roofing company for storage of construction materials and parking.  It's allowed under the terms of a Variance issued in 2004.  It was a Variance with many conditions on the commercial use.  Mr. Frank bought the property several months ago.  His proposal is to convert the building back to residential use.  The existing commercial use is an aberration – the rest of the neighborhood is residential.  It's a very simple structure right now.  Mr. Frank is proposing to keep the existing first floor of the property, and to add a second floor where the residential unit would be.  The first floor would still be used for storage, but wouldn't be used for commercial use any more.  We are proposing to forgo the commercial use allowed by the previous Variance.  Because this would be an extension of a nonconformity, a Variance would be needed for an expansion of a nonconforming structure.  The exterior changes would be: addition of a second story, addition of rear entrance stairway & deck (south side), and a second means of egress on the side with the garage entrance (eastern side of the building).  The plans originally submitted with the application package shows a second egress on the Beaver St (north) side.  Now we are proposing to put the second egress on the east side of the building.  There is no demand for commercial space in a residential zone, and the Variance only allowed a very specific type of use – if you're not using it for storage of construction materials, you can't really use the building currently.  Bringing this property back to residential use would be in keeping with the intent of the zoning ordinance.  I feel quite firmly that we're satisfying the requirements of the variance.

Ms. Curran – did you look at having the stairway on this side, where you wouldn't expand the nonconformity?  Atty.. Grover – that's what the new plan is showing.  Ms. Curran – so the first floor use would be related to the residential occupation?  And what if you just had the egress on the east side of the house, and a second stair inside the building envelope, and didn't have a stair and deck on the south side of the house?  Atty. Grover – even if we did that, the second floor addition would necessitate a variance.  

Ms. Curran opens to the public

Jane Froncki, 5 Safford St – my family was in the area when that building was built.  It was originally a boiler company.  Then ServicePro.  Then roofing company.  Never had any problems with any of those businesses.  63 Beaver St is a 3 family, absentee landlord.  72 Beaver St, absentee landlord.  74 Beaver St, absentee landlord, well known to the Salem police department.  6 Silver St, absentee landlord.  Boston, Safford, Beaver Street – it's very busy, it's a shortcut to North Street.  That garage there – if a second floor is added, it will block my sun.  Not one absentee landlord is here.  They don't care.  It looks like a dump.  I'm requesting that you leave it as it is.  I'm hoping we get another nice neighbor.  Mr. Frank should have come around before he bought the property to see how the neighbors felt.  I found out after he bought the property.  Please honor the agreement that was made 50-plus years ago with her family.

Stan Froncki, 5 Safford St – that building would cut 2 hours off my morning sun.  That structure would resonate more noise from the gas station to my yard.  Because it's an R2 district, probably down the road they'd put an R2 family in there.  Once they build the developments around the area, there will be a lot of new people there.  All the absentee landlords are a problem.

Sarah Lobao, 148 Boston Street – borders the lot.  We have rental units.  Our concern is the privacy.  Our tenants are elderly.  How would they be impacted by the privacy, the noise factor.  What will the parking situation be?  How many bedrooms will there be?  The concern primarily is how close this will be to us.  It is a very congested area – we're pretty much on top of one another.  Our units have porches that face out to that lot.  Our tenants would like to use their porches.  Concerned for their tenants, and it's their livelihood.  

Stan Froncki  - concern with absentee landlord.

Atty. Grover asks permission from the chair to respond to some of the concerns.  There will be more than enough parking on the site.  The proposed structure is a small one-level structure on top of the existing structure, so there's no possibility for additional units.  Granted Mr. Frank isn't going to live there, but his business is in Salem.  He's not out of town, he's not out of State, he wouldn't treat the property like some of the other absentee landlords.

Jane Froncki , 5 Safford Street – past story of landlord that misled them in what they were intending to build.

Ms. Curran – reads an anonymous letter submitted in opposition to the proposal.

Mr. Frank – in my own defense, I'm not an absentee person, I'm there all the time.  I've been a taxpayer in Salem for many years.  I want to bring it back to a quiet neighborhood, and make the house look like it belongs there.  It's only going to be a two-bedroom, 1-bath.  Ms. Curran – the plan shows three bedrooms.

Ms. Curran – did you consider doing a one-story or traditional cape in lieu of adding to the structure that's there?
Mr. Frank – the structure that's there is a beautiful strong building.
Ms. Curran – and you can't convert the existing structure to residential?
Mr. Frank – no, it's just one big space.  The proposed structure would only be 13 feet higher than the existing structure.
Ms. Curran – this is the first time I've heard a residential neighborhood fighting to retain an industrial use.
Atty.. Grover – there's no outside space where people would be congregating outside.  We could look at moving the stairway and deck off the back space, to reduce the proximity to the rear abutters, and address the privacy issues.  That's something we'd be willing to consider.

Ms. Curran – so do you want to look at that and continue?

Atty. Grover – yes.  If that would alleviate concerns, to not have a lot of activity in the rear of the building.
Ms. Curran suggests speaking with the neighbors about the privacy and the impacts on the light into the other properties.

Atty. Grover requests a continuance.

Motion and Vote: Mr. Duffy makes a motion to continue the hearing to the next regularly scheduled meeting on April 16, 2014.  The motion is seconded by Jimmy Tsistinos.  All in favor, none opposed. The motion carries.

Project:  Petition requesting an Amendment to a previously issued Variance decision in order to reduce the number of parking spaces required for the commercial space, and to allow an increased encroachment on the 50 foot buffer required for construction activity abutting residential property.
Applicant:  RIVERVIEW PLACE LLC
Location:  72 FLINT ST, 67-69 MASON ST, AND 71 MASON ST (NRCC Zoning District)

Documents & Exhibitions:
  • Application date-stamped February 26, 2014 and accompanying materials
  • Supplemental material distributed at the meeting, with clearer (color) drawings.
  • Landscape plan approved by the Planning Board in 2008 Decision.
Attorney Grover presents on behalf of Riverview Place LLC, the applicant.  The Riverview Place project is on the site of the former Salem Suede and Bonfanti properties.  In 2007 there were a variety of variances approved for this project, that allowed for construction of a primarily residential complex, with 130 units, and 2 parking spaces per unit.  There was a small component required to be commercial space, as required in the NRCC zoning code.  The property is 3 buildings – one on Mason St, one on the Flint St side, and one in the middle, with a parking garage.  There were 260 parking spaces dedicated for residential use, plus 37 spaces required for the commercial use, and 12 spaces required for residents of Flint St.  Plus there's a requirement for a 50-foot buffer on construction activity adjacent to residential properties.  Extensive environmental remediation has been ongoing, and is almost complete.  The owners have also been involved in the arduous process of getting a Chapter 91 license from MassDEP.  As part of that process, they discovered that as part of the property is on filled tide land, the buildings had to be shifted out of the water dependent use zone.  MassDEP and CZMA also required the owner to conduct a flood study – completed by BioEngineering group.  That study recommended that we use the new 2013 FEMA mapping, even though it hasn't been adopted yet, and also that we look at sea rise predictions for 2100, to determine where the lowest habitable space should be.  Because of that, we've raised the residential portions of the building, and put the parking on the first floor of the central building.  The redesign also caused the units to be laid out in a different manner.  Instead of the units being loaded to look out on the river, units were now looking out toward the parking garage.  So they've lowered the parking garage by one level, so none of the residential units are looking into the garage.  To make up those spaces, we've had to reconfigure the surface parking areas, and to reduce the number of parking spaces dedicated to the commercial space to 10 spaces, from the 37 previously conditioned.  The 37 spaces would be required with the maximum buildout of that space.  Now the owners are thinking that commercial space will likely be used for lower-density office space, and that the 10 spaces will be more than sufficient.  The use would have to comply with the zoning ordinance requirements for the number of parking spaces available, as enforced by the Zoning Enforcement Officer.

Ms. Curran – that property on Mason St is the only commercial use?  Atty. Grover – yes.  At the time, we came up with a number of required spaces based on the most intensive use.  Now we're looking to reduce it to 10 spaces, but we're not asking for a Variance – we would just restrict the use of the property based on the number of available spaces.

Mr. St. Pierre – and the applicant understands that they might have to wait for an appropriate tenant to come in – the property might sit vacant until that happens.

Atty. Grover- what's been discussed is maybe a management office related to the development.  Under the zoning ordinance, it requires 1 space per employee, so you'd be allowed to have up to 10 employees there.

Ms. Curran asks for clarification on changes to the building.  Atty. Grover clarifies that in order to make up for the loss of some of the units, they've added one floor to one wing of the building, but the total height still complies with the zoning code, so it doesn't require a variance.  The top of that wing is level with the rest of the building, which is not proposed to be any higher than the original design.  The new provision to substitute the off-street parking requirements of the zoning ordinance in lieu of the 37 spaces is one amendment.

The other amendment is to the Variance granted to allow encroachment on the required 50-foot activity buffer in areas adjacent to residential properties.  Atty. Grover describes the submitted plans and the proposed changes to the building and parking layout.  The new proposed layout of the north-west surface parking lot gets about 20 feet closer to the residential properties on the west side of the site.  The new parking layout also shifts further away from the residential properties on the north side of the property.  The second amendment we're asking for is to allow the parking and the buildings to slightly encroach further on the 50-foot buffer.  Atty. Grover shows the landscape  plan approved by the Planning Board in their 2007 Decision, and states that the proposed changes to the development will have to go back before the Planning Board and the DRB as well.  The proposed north-west parking lot is at a lower elevation than the surrounding residential properties.  The grade rises 3 feet to the property line from the parking lot, six feet to the nearest structure (a garage), and even further up to the actual residential structure.  It is increasing the surface parking, as we've lost some in the garage.  One of the positive things, which the DRB was concerned with, is that the massing of the garage will be reduced.  Atty. Grover references the proposed amendment wording laid out in the submitted statement of grounds.

Rosemary O'Connor, 111 Mason Street – Are you increasing the number of units?
Atty. Grover – no, we're raising the building up to allow parking underneath.  It really is just bringing up that wing of the building to be level with the rest of the building.

Rosemary O'Connor – further reducing the buffer zone is asking too much of the neighbors.
Atty. Grover – it really just essentially relates to parking, the buildings aren't getting any closer.  It's just one line of parking, and in some places the parking gets further away.  Atty.. Grover discusses the plans in more detail with Ms. O'Connor.  Ms. O'Connor states that the proposed 7.6 feet between the parking lot and the western property boundary is quite tight.  Atty. Grover agrees, but states that the mitigating factor is the grade change.  We did previously get a Variance to allow a minimum distance of 21.3 feet, and now we're asking for 7 feet.  

Ms. Curran – with a good landscape plan, a lot could be done with that.  What was the size of the parking spaces?  Atty. Grover – they're complying with the zoning ordinance.

Mark Hoskins, 22 Larchmont Rd.  My recollection is that the development preserved some theoretical right-of-way should Commercial Street be extended in the future.  Atty. Grover – yes, you're correct.  The owners were required to preserve a ROW from Flint Street to connect to Commercial Street, further down.  It does have to pass over another privately owned parcel, so that would be further down the line.  The changes proposed here would actually make that more practical, as the buildings would be further away from the edge of that potential roadway.  

Beth Gerard, Ward 6 Councilor, 9 Larchmont Road – 7 feet is very close, and would be concerning for a residential abutter.  Atty. Grover – the applicant spoke with 4 or 5 abutters.

The Board discusses what the structure is that would be closest to the proposed parking lot.  It's agreed that it's most likely a garage or a shed, as the house fronts on Flint Street.

Atty. Grover reads the proposed amendment wording for the required parking committed to the commercial use.  A use that required more than 10 spaces wouldn't be permitted.

Ms. Curran – for retail, what's the requirement for parking?  Mr. St. Pierre – for commercial other than an eating or drinking establishment: 1 space for each 150 sf of gross floor area, excluding storage areas.  What's more likely is commercial use, which would require 1 space for each professional person, plus 1 space for each additional 2 employees.

Atty. Grover – and the second amendment would pertain to further encroachment on the 50-foot residential buffer required by Section 8.4.13 of the Salem Zoning Ordinance.  The only area that would need additional relief is that one location on the north-west corner of the north-west surface parking lot.

One of the outcomes of these changes is that it creates more open space along the canal.  The Planning Board took a lot of pains to create visual and physical connections through the site that would invite people down to the canal.

Ms. Curran – so this vote would amend the November 2, 2007 Decision with the two amendments.  Atty. Grover – correct.  And what's driving it is the Chapter 91 requirements.  

Mr. Dionne – commends the petitioner on their excellent work.

Motion and Vote: Mr. Watkins makes a motion to approve the two requested amendments to the November 2, 2007 Decision of the Board of Appeals. ~The motion is seconded by Mr. Dionne.  A roll call vote is taken, and is unanimous with five (5) in favor (Mr. Watkins, Ms. Curran, Mr. Dionne, Mr. Tsitsinos, and Mr. Duffy) - and none (0) opposed.  The decision is hereby incorporated as part of these minutes.


APPROVAL OF MEETING MINUTES
February 19, 2014 Draft Meeting Minutes
Motion and Vote: Mr. Watkins moves to approve the minutes as written, seconded by Mr. Duffy.  The vote was unanimous with five (5) in favor (Mr. Watkins, Ms. Curran, Mr. Duffy, Mr. Dionne, and Mr. Tsitsinos) and none (0) opposed.


OLD/NEW BUSINESS

ADJOURNMENT
Mr. Watkins motioned for adjournment of the March 19, 2014 regular meeting of the Salem Board of Appeals at 8:10 PM.

Motion and Vote: Mr. Watkins made a motion to adjourn the March 19, 2014 regular meeting of the Salem Board of Appeals, seconded by Mr. Duffy, and a unanimous vote was taken with five (5) in favor (Mr. Watkins, Ms. Curran, Mr. Dionne, Mr. Tsitsinos, and Mr. Duffy) - and none (0) opposed. The decision is hereby incorporated as part of these minutes.

For actions where the decisions have not been fully written into these minutes, copies of the decisions have been posted separately by address or project at: http://salem.com/Pages/SalemMA_ZoningAppealsMin/ 

Respectfully submitted,
Dana Menon, Staff Planner

Approved by the Board of Appeals 4/16/2014