Wile - Administrative Appeal
Decision on an Appeal from an Administrative Decision
Requested by Evan Wile
A public meeting of the Zoning Board of Appeals (the “Board”) was held on
Tuesday May 28, 2002 at 7:00 p.m. at Beverly City Hall, 191 Cabot Street, Beverly,
Massachusetts. The agenda included a petition by Evan Wile, Trustee, for an appeal from
an administrative decision regarding the property located at 63R West Street also known as
63 West Street (the “Parcel”). The petition is a request of an appeal from an administrative
decision of the Building Commissioner’s interpretation of the Beverly Zoning Ordinance,
in a letter written January 28, 2002. The Parcel is located in an R-45 Zoning District.
The Public Hearing on this petition opened on April 23, 2002 and was continued to
May 28, 2002. On both dates, the hearing was called to order by the Chairman, Scott D.
Houseman and the following five members of the Board were present: full members Scott
D. Houseman, Scott Ferguson, Margaret O’Brien, Andrea Fish and Mark Schmidt.
Alternate members John Colucci, Jane Brusca were present on both dates, alternate
member Joel Margolis was present in May. The alternate members did not vote on this
decision.
The public hearing on this application started with the Zoning Clerk, Diane Rogers,
reading the application request to the public and the Board members reviewing the
application material.
At both the April and May meetings, Attorney Robert McCann spoke on Mr.
Wile’s behalf.
At the April meeting, Attorney McCann addressed each alleged violation cited
against his client in the Building Commissioner’s letter dated January 28, 2002. He stated
that the storage of automobile parts had been corrected and that any sign that was in excess
of two (2) square feet on the property had been corrected. He addressed the storage of
recreational vehicles by stating that a small dinghy and a camper were stored on Mr.
Wile’s property and he cited specific sections of the Beverly Zoning Ordinance relating to
boat and boat trailers, campers and tents, etc. (Section 29-2.B.33) and boats and campers
(Section 29-8.G.1) and rear and side yards (Section 29-2.B.49.b thru c.). He added that
the bylaws state that if you have a vacant lot you may treat it as if a building is upon it.
He asserted that under these four sections, storage of recreation vehicles is permitted as a
matter of right. Regarding the portable toilet located on the Parcel, he stated that it is
allowed as a recreational use in an R-45 zone. He stated that the storage trailer is used to
store beach equipment and construction materials necessary to install a water main. He
added that the property is currently being used as open space.
At the April meeting, Attorney John Connolly spoke on behalf of John Rattigan. He
questioned how Mr. Wile could establish a side and rear lot line that without a dwelling on
the lot, and that he hoped the Board would uphold the Building Commissioner’s letter. He
stated that nowhere in the Beverly Zoning Ordinance is there a specific category for open
space use of recreational use. He commented that if every vacant lot is allowed to use the
front, side and rear yard as if it really existed it would basically be creating a boundary
around all vacant lots allowing people to put in anything they want. He cautioned the
Board to stay within their authority and to be mindful of what was being suggested by
Attorney McCann’s interpretation of open space.
In April, Mr. Houseman, with Ms. Fish concurring, stated that the Building
Commissioner’s January 28, 2002 was issued at the direction of the Board. He said he was
uncomfortable making interpretations of the ordinance without a copy of the Board’s
decision directing the Building Commissioner to issue that letter, and without the file and
an opportunity to review the minutes of the Board’s meetings concerning the Board’s
action. The Board passed a motion directing the counsel for both the applicant and
opposing counsel to submit a brief Memorandum summarizing their arguments and to
submit it to the Board prior to its next meeting. Mr. McCann agreed to continue the matter
to the May meeting.
Both counsel spoke very briefly in May summarizing their positions.
Chairman Houseman asked if there was anyone from the public who would like to
comment on the petition. At the April meeting, Mr. Freeman of 45 West Street #22 stated
that the lot is an eyesore in the neighborhood.
The members made the following observations about the issues on appeal. Ms.
Fish stated she was persuaded by Mr. Connolly’s arguments. Mr. Schmidt stated that it
was clear to him that open space is not a permitted use. Mr. Ferguson and Ms. O’Brien
concurred with Mr. Schmidt.
Ms. Fish made a motion to uphold the decision of the Building Commissioner’s
request to remove the zoning violations, seconded by Ms. O’Brien. The motion carried 4-1
(Houseman was opposed).
Appeals from the Board’s decision on this petition may be filed in accordance with
the provisions of M.G.L. Chapter 40A, Section 17, within twenty (20) days of filing of this
decision with the City Clerk. This decision shall not be valid unless recorded at the Essex
County Registry of Deeds in Salem, Massachusetts after the twenty-day appeal period has
passed without an appeal being filed.
Respectfully,
Scott D. Houseman
Zoning Board Chairman