2000-03-28
CITY OF BEVERLY, MASSACHUSETTS
PUBLIC MEETING MINUTES
The minutes are not a verbatim transcript of the public hearings or public meetings of the
Zoning Board of Appeal. Reviews of the discussion or outcome of public hearings should include an
examination of the Board’s Decision for that hearing.
Board: Zoning Board of Appeal
Date: March 28, 2000
Place: Beverly City Hall, Council Chamber, 191 Cabot Street
Board Members Present: Full Members: Chairman, Scott D. Houseman, Leonard
J. Bertaux, Day Ann Kelley, (Left at 9:00) Alternate
Members: Margaret O’Brien, Andrea Fish, and Scott
Ferguson.
Absent Members: Martin Freeman, and Robert McLemore
Others Present: Building Commissioner/Zoning Officer – Timothy Brennan
Clerk of the Board - Diane Rogers, and Assistant City
Planner, Debra Hurlburt.
Chairman Scott Houseman opened the meeting at 7:00 p.m. by having a discussion with the Board, relative
to setting a meeting time for the conclusion of hearings on applications. Kelley responded that the public
hearings should place a limitation upon public response time of individuals. Bertaux stated a specific time,
perhaps 11:00 p.m. should be set and the remaining cases should be carried over. O’Brien stated she
concurred with Bertaux, however, she had concerns holding special meetings. Fish responded the public
should have input at all times during a meeting.
Houseman stated the minutes of the November 9, 1999 meeting should now be voted upon. He added that
the AMG Decision also needed to be ratified. In the AMG Decision, Houseman wrote “ The Board voted 5
– 0 to GRANT the petition for a variance from height. Each vote was subject to the condition that a
variance or special permit will be required for any additional development, commercial, residential, or
otherwise, at the parcel.” After listening to the tape recording of the meeting, he realized the word
“residential” should have been omitted.
Kelley: Motion to ratify the AMG Decision by removing the word “residential”. Seconded by O’Brien.
All members in favor, Motion carries 5 – 0. (Kelley, O’Brien, Fish, Houseman, and Bertaux)
Houseman stated there was not enough time this evening to discuss revisions to the rules and regulation of
this board. He commented that hopefully the Board will renew the topic at the next scheduled meeting,
April 25.
A discussion followed pertaining to the enforcement of the Sign Ordinance. Bertaux stated the right to
have a sign would be terminated if the petitioner had not received a permit. He added that this issue should
be discussed with the City Solicitor, Marshall Handly. Houseman responded that an enforcement
restriction should be considered which would impose a loss of the occupancy permit. Brennan stated he
could make them remove the sign if it were illegal. Houseman suggested continuing this discussion in the
future
Page 2.
63 West Street – R-45 Zone – John E. Rattigan, Jr. – Appeal from an Administrative Decision
Attorney John Connolly appeared on behalf of John Rattigan Jr. He stated he agreed to a waiver of the
timeline deadline on an Appeal from an Administrative Decision of the Building Commissioner, to issue a
building permit on June 28, 1999, to construct an 18 room, two story, single family dwelling on the
property, in violation of the fact that the R-45 District of the Beverly Zoning Ordinance requires that a lot
have at least 175 feet of frontage on a street.
Attorney Robert McCann appeared on behalf of his client John Wiley. He stated he agreed to a waiver of
the timeline deadline also because not everyone needed was present tonight.
The Attorney’s jointly submitted a waiver of time that will expire on May 26, 2,000.
O’Brien: Motion to grant the waiver to continue this proposal until the May 23, 00 scheduled meeting.
Ferguson seconded. All members in favor. ( O’Brien, Ferguson, Kelley, Bertaux, Houseman) Motion
carries 5 - 0
263 Hale Street – R-45 Zone – Julia A., Mary E., and Maura A. Steen – Variance Request
Attorney Mark Glovsky appeared on behalf of his brother Attorney John Glovsky who represents the
Steens. Mark Glovsky stated that his brother John Glovsky was in Florida and at John’s request he stated
the petitioners would like to withdraw without prejudice their petition to reduce frontage from 121.85 feet
to 107.21 feet and area from 12,125 square feet to 10,889 square feet on presently non-conforming lot ( to
allow conveyance to the immediate abutter)
Bertaux: Motion to grant the petitioner to withdraw without prejudice their proposal. Seconded by
Ferguson. All members in favor. (Kelley, Bertaux, Houseman, Ferguson and O’Brien. Motion carries 5-0.
6 Milton Street – RHD Zone – Jonathan Shaw – Special Permit and Variance Request
Attorney Thomas Alexander spoke on behalf of the petitioner Jonathan Shaw. He is requesting to remove
and rebuild an existing addition, and to encroach 15 ft. plus or minus on the rear yard setback requirement
of 20 ft. and encroach 5 ft. plus or minus on the side yard setback requirement of 10 ft. with a two story 7.5
ft. x 16 ft. addition that will enlarge the first floor bedroom and create a laundry room on the second floor.
Alexander stated that Mr. Shaw has owned the property for eight years and that he is a licensed contractor
who will do the construction work on the dwelling. Alexander added that the hardship was the following:
unique shape of the property containing the jog on the end, ledge restricts what can be done on the other
side of the property, site would look much better, the new foundation would replace the existing
foundation which is sinking, the area is too dense to blast the ledge, the neighbors support this proposal,
and this would improve the property values in the neighborhood.
Houseman asked if any members of the public had any comments on this proposal. Joseph Johnston of 15
Vestry Street stated he was in favor of this proposal. DonaLee Webber of 12 Broadway, the Goldbergs of
16 Broadway, and Kathy Salter of 2 Milton Street were also in favor.
Houseman then asked the Board Members for their comments. Kelley stated the hardship on this proposal
is that the house in located on the right side of the lot, the side yard setback is non-conforming, the back of
the lot has a sharp drop off and they are limited to building on that side. O’Brien concurred with Kelley
and stated she also had concerns regarding why the addition will be jogged out and not follow the lines of
what was existing. Mr. Shaw responded a laundry room was located there and he wanted the extra room.
Page 3 (Shaw cont.)
Bertaux stated he felt the addition was off-set because Mr. Shaw did not want to lose the deck.
Ferguson added he was in favor of this proposal and the hardship is the narrowness and shape of the lot, the
way the present house sits on the lot, and the presence of ledge on the other side of the lot. Houseman
related he had concerns regarding why the offset is jogging out on one side of the house. He added that
though having examined the drawings, he remained unsure of how the hip roof would be constructed.
Kelley: Motion to grant the variance request. Seconded by Ferguson. All members in favor. (Kelley,
O’Brien, Bertaux, Ferguson, and Houseman) Motion Carries 5 – 0.
10 Cox Court – RMD Zone – Joseph Boudreau - Variance Request
Mr. Boudreau spoke on his own behalf. He is requesting to allow four dwelling units on a lot containing
10,264 square feet where 16,000 square feet is required. Boudreau stated that he purchased the property in
June of this year and was unaware that one of the apartments was illegal. Houseman asked Boudreau if he
was aware that he needed to prove a hardship for granting relief on a variance and he responded, no.
Houseman then gave him a copy of the rules and regulations regarding a variance.
Kelley: Motion to postpone this case an hour to give the petitioner time to read the rules regarding relief
on a variance. Seconded by Ferguson.
Upon the rehearing, Mr. Bourdreau stated that he had read the rules pertaining to granting relief on a
variance and he requested to continue his proposal to the next scheduled meeting on April 23, 2,000.
Bertaux: Motion to continue this proposal until the next hearing subject to signing a waiver of time.
Seconded by O’Brien. All members in favor. (Bertaux, O’Brien, Houseman, Ferguson, and Fish. Motion
carries 5 – 0.
7 Dyer Road – R-15 Zone – Eric Rosenberger – Variance or Special Permit Request
Attorney Mark Glovsky appeared on behalf of Mr. Rosenberger. He is requesting to build a family room
approximately 16 feet by 36 feet, which will encroach upon the required side yard setback of 15 feet by 4.5
feet. Glovsky stated the application before the Board is in the “ alternative”. Part of the reason for that is
that prior to his getting involved with this proposal, Mr. Rosemberger had completed the application and
submitted it to the Zoning Board for a variance on this project. Glovsky reviewed the history on this
property and determined that a special permit was needed for the proposed family room. Consequently, the
application was modified. Glovsky stated that if he can convince the Board that his interpretation is
correct, he doesn’t have to run through the hardship argument in order to grant a variance. He added the
previous variance was for a covered porch that had been there 15 years. Glovsky stated the porch was
grand-fathered therefore, a variance was not needed. He commented that the house was purchased in July
of 1997 and the lot is rectangular, approximately 90 feet by 111 feet. In 1996 the former owner of this
property obtained a variance but it was never acted upon and the variance elapsed. He added that Mr.
Rosenberger spoke to his abutters the, Fitzgeralds who support this proposal. Glovsky stated that the
proposed porch will be less close to the property line than the present one.
Houseman asked if anyone from the public would like to comment on this petition, there being none, he
asked members for their comments or questions. Ferguson responded he had visited the site and indicated
the previous variance elapsed, therefore it was moot. Bertaux stated the Board granted a variance
previously, therefore, it doesn’t matter.
Page 4 ( Rosenberger cont.)
Fish stated a variance runs with the land and questioned if a special permit went with the owner. Glovsky
responded a special permit is for non-conforming structures. Kelley stated this is a variance because there
was a hardship. Ferguson stated this proposal should be a special permit. Houseman stated the lot was
square and not unique in any way. He concurred with Ferguson that a special permit was needed, however,
he would comply with whatever the Board suggested.
Ferguson: Motion to grant the special permit. Seconded by O’Brien. Motion carries 4 – 1. (Houseman,
Bertaux, Ferguson, and O’Brien) (Kelley in the negative)
14 Lakeshore Avenue – R-10 Zone – Christopher A. and Donna Mitchell – Variance Request
Attorney Thomas Alexander appeared on behalf of Mr. Mitchell. He is requesting to allow 68 feet of
frontage where 100 feet is required and to allow for 6,800 square feet where 10,000 square feet is required.
Alexander stated the Mitchells’ have lived there since 1990 and they would like to build a small house on
the lot, #44, for her father. A petition was submitted with those in favor of this proposal. Alexander
commented that the hardship was as follows: the lot is unique and to the far right is an intermittent stream
that is not subject to the Rivers Act, this is a reasonable use for the property, in harmony with the purpose
and intent of zoning, not injurious to the neighborhood, an appropriate use being a single family dwelling in
a residential zone, there would be no undue traffic and there are no objections from abutters, just support.
Houseman asked if anyone was present who had any comments regarding this petition. Mr. Iler of 17
Lakeshore Avenue responded that he thought this was a good project.
Housman then asked the Board Members for their comments and questions. Fish stated she felt an
intermittent stream on the property would mean the property should not be developed. Alexander
responded that this stream is not subject under the River Act and the stream just fills up in the spring.
Ferguson stated he visited the site and saw three sixty year old oak trees that were on city property that are
ready to fall down upon power lines across the street. The owner stated he is willing to deal with this
problem as part of this variance. Ferguson added that the topography drops down on to this lot and the
water run off from Mr. Iler’s property is going to run into the road. Ferguson feels that the water has to run
somewhere and suggested a condition be placed on the variance to deal with this problem. Houseman
responded that he would ask the City’s staff member who is on the Conservation Commission to elaborate
on this. Debra Hurlburt stated anything of that magnitude that impacts an intermittent stream is protected
and has to be permitted through the Conservation Commission.
Houseman stated he was not in favor of this proposal because of the character of the neighborhood and the
intermittent stream on the lot. O’Brien stated that the area has a flooding problem and asked how many
people present signed the letter in support of this proposal and when was the letter written. Mr. Mitchell
responded the letter was written in November and a couple of people present signed it. O’Brien added she
had concerns relative to the size of the proposed new dwelling. She feels a larger dwelling on the lot would
disturb the neighborhood. Alexander responded, the owner would limit the size of the dwelling to 30 feet
by 36 feet with one and a half stories. O’Brien then asked how would the flooding be handled. Alexander
responded the impact of the surrounding area would be the same or less than the existing situation and an
engineer could certify to that. Brennan stated that this is part of the Lawrence Brook Project where the city
is contracting out to increase storm water flow so flooding will be alleviated. Houseman responded that
this property may have a flooding problem. Houseman stated because of the character of the neighborhood
and though there is an intermittent stream, there is not a hardship on this lot. Fish concurred with
Houseman and stated the father could live on the property in the existing house with the petitioners.
Bertaux stated this is not an R-6 Zone, it’s an R-10 Zone, therefore, subdividing the existing lot
would not meet the area requirement or setbacks.
Page 5 (Mitchell cont.)
Fish: Motion to deny this variance request. Seconded by Bertaux. Motion carries 4 – 1. (Bertaux,
Houseman, Fish, and O’Brien) (Ferguson opposed)
11 Elliott Street – CC Zone – Richard Fortuna/Front Line Motor Sales – Special Permit Request
Attorney Thomas Alexander appeared on behalf of Mr. Fortuna. He is requesting to seek to use the
premises for the sale of automobiles. For many years it has been used for automobile repair and
automobile related business activities, including from 1964 to 1981 for the sale of automobiles. Alexander
stated there were vehicle sales on this property years ago. Mr. Ricciardi, the owner, operated Franks
Garage from 1952 through 1988. He became ill and no longer actively operated the business. However, all
the equipment, tools, and accessories were left on site. Alexander commented that this use had not been
abandoned. He referred to a case of law relative to abandonment, the Derby Refining Co. V. Chelsea, Ma.
Alexander stated that Mr. Fortuna received a license from the City, subject to the Building Commissioner’s
signature. Brennan informed Fortuna that he must go before the Board of Appeal to change from one non-
conforming use to another. Alexander commented that the building will not be increased, it would not
derogate the neighborhood, and property values would increase. Letters in support of this special permit
were submitted from Super Sub, Ron Trentini, Colonial Clearners, and Town Paint.
Houseman asked if any members of the public had any comments on this proposal. Attorney George
Atkins of 59 Federal Street, Salem, Ma. appeared on behalf of Tim Clark, owner of Water’s and Brown
Paint Co. He stated his client disagrees with Attorney Alexander. He added that twelve years have gone
by since 1988 and the subject property had been leased, as a parking lot, to Waters and Brown. He
commented that more than two years have gone by since Mr. Ricciardi passed away. Atkins suggested
reading Section 29-26-B & D of the Zoning Regulations, which discusses discontinuing or abandonment.
He then stated that car sales are only allowed in a CG Zone. Atkins added that Mr. Fortuna won’t just be
selling volvo’s, he will also be doing small repairs. Dr. Dave Robinson of 8 Elliott Street was not in
support of this proposal.
Houseman then asked for members of the public that were in favor of this proposal for their comments.
Mr. Fortuna, a Beverly resident, stated he would be leasing the property. He added that the vehicles will be
taken to Cambridge for repairs and that there will be an indoor show room only. Ms. Harrington, a niece
of an owner stated the property should be able to derive some income to help her aunt pay her bills.
Sharron Flynn, a Trustee of the Realty Trust, stated her uncle rented the parking lot to Mr. Clark who in
turn rented it to his tenants. The new tenants parked on the site and left abandoned vehicles there. Ms.
Flynn ended the lease with Mr. Clark and believes this proposal will benefit the City more. Alexander
stated that Fortuna’s Second Class License states there will be no repairs on site, and there are six
dealerships in Beverly that are located in the CC Zoning District.
Houseman then asked Board Members for their comments and questions on this proposal.
O’Brien passed to Bertaux. Bertaux stated this non-conforming use has been abandoned over two years,
therefore, he is not in support of this proposal. Houseman responded by asking Bertaux which factor
constitutes abandonment? Bertaux responded (1.) no one has done any auto work in the shop and (2.) they
leased the property for other uses. Ferguson concurred with Bertaux regarding the abandonment of the use.
Fish stated that the Board could have saved time at the beginning of this presentation by saying this
business is no longer the use. Houseman stated as an attorney case law interprets the language for city
ordinances. Fish responded the Chelsea Case Law is in Chelsea and the ordinances are different. O’Brien
stated she did concur with what has been said.
Page 6 (Fortuna Cont.)
Houseman stated Waters and Brown did lease the exterior of the property from 1988 to 1999. He added
that he agrees with the Board that the leasing of this building constitutes abandonment. He added that this
is not an appropriate area for auto sales.
Ferguson: Motion to deny the special permit request. Seconded by O’Brien. Motion carries 5 – 0. All
members in favor of this denial. (Houseman, O’Brien, Ferguson, Bertaux, and Fish)
97 Rantoul St. – CC Zone – Ogden Hawkes Inc. Todd Waller & Robert Shannon – Variance Request
Attorney Thomas Alexander appeared on behalf of Ogden Hawkes Inc. He is requesting to allow an
existing 28,728 square foot building to be used as a self- storage (mini-storage) facility and to allow three
parking spaces where currently twenty-five is required. Alexander stated there was a lack of parking at the
site, which formerly employed 38 people. The proposal is to change the use to mini storage and employ
only one person. He added that one of the partners is Marty Labell who presently owns another mini
storage facility located at 60 Park St. in Beverly. Alexander stated the following people were in support of
this proposal: Tim Murphy of the Goat Hill Grille, Rocky Pinciaro of 100 Rantoul Street, Gateway Condos
across the street, Northern Grind Restaurant, Weaver Glass Co., Salem Plumbing, River Street Grille,
Zwicker Press and Pisani’s Market. Alexander stated the special circumstances due to this particular
building is indeed a unique situation, you have a large building with a lot of space, the way the building sits
on the lot, and the fact that there is no parking constitutes a hardship. He added this proposal would not be
injurious to the neighborhood, it’s an appropriate location for this use, it will not affect property values and
the property will be cleaned up.
Houseman asked if any member of the public had any comments regarding this proposal, there being none
he asked the Board Members for their comments.
Fish asked if the building brickwork would be re-pointed and Alexander responded, yes. Ferguson asked if
the bricks would be acid washed and Alexander responded, yes. Ferguson then asked what the condition
of the building was inside. One of the partners, Marty Labell, responded, not very safe right now.
Ferguson asked to be shown where the three parking spaces were located in the rear yard. Brennan stated
there could be four parking spaces in the rear. Houseman asked if this was a use variance and Brennan
responded, yes. Bertaux asked what was going to be done to all the boarded up windows and suggested
new windows with frosted glass be installed in the front, back, and on half the sides of the building.
O’Brien concurred with Bertaux relative to the windows having frosted glass. Fish concurred with them
also. Bertaux then suggested do all four corners. Ferguson stated there were approximately 24 windows, 6
feet high on the Millery side of the building. Houseman stated from Rantoul Street, half way down the
building, would be about 80 windows
After much discussion the following are the conditions of this variance:
l. The front and the back will be windows, all floors.
2. Starting at the backside of the building going toward Rantoul St. they will go 3 columns forward
windows will be glass except for the ground floor.
3. On the front the same only in reverse, 3 columns back going toward the back of the building except for
the ground floor. Mr. Labell stated from the back of the building for security purposes, omit ground
floor windows.
Houseman amended the following: front and back of all floors except the ground floor rear of the building.
O’Brien suggested there be no painting on the glass of the windows. Fish suggested the window opening
will have windows, not be aluminum boxed in ones. Alexander responded that most boxed in windows
have aluminum. Bertaux suggested the owner have an architect handle the project. Brennan suggested
replacement windows must be comparable in size and architecturally equivalent to the existing present
windows.
4. Best efforts to improve and remove the walkways between the subject building and 95 Rantoul Street
Page 7 (Ogden Hawkes Inc. cont.)
5. Acid wash and point all exterior brick walls prior to occupancy for this use. Brennan suggested amend
to “washed painted and maintained in that condition”
6. 4 –5 parking spaces to be located at the rear of the building.
Fish asked about the awning out front of the building and Mr. Labell responded that the awning is being
removed.
O’Brien: Motion to grant the variance with all the above conditions. Seconded by Ferguson/Bertaux. All
members in favor. (Houseman, Bertaux, Ferguson, Fish, O’Brien) Motion carries 5 – 0