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Morin - Decision Decision on Petition for a Special Permit and Variance Requested by Donald L. Morin A public meeting of the Zoning Board of Appeals (the “Board”) was held on Tuesday June 25, 2002 at 7:00 p.m. at Beverly City Hall, 191 Cabot Street, Beverly, Massachusetts. The agenda included a petition by Donald L. Morin in a request for a special permit to encroach ten (10) feet plus or minus upon the required side yard setback of fifteen (15) feet with a two-story addition, containing an attached one-car garage, with family room above, regarding property located at 579 Essex Street (“The Parcel”). The Parcel is located in a R-15 Zoning District. The Public Hearing on this petition opened on May 28, 2002 and was continued to June 25, 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 and Jane Brusca were in attendance 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 May and June meetings, Mr. Morin spoke on his own behalf. Mr. Morin stated that the proposed addition could not be located on the left side of the dwelling because a city water line passes through the area. He added that the lot is fairly narrow. He stated that the front of the structure holds a three-bedroom unit, and a pre- school run by his wife occupies the rear of the building. The structure was built in 1920 has had several uses including a market, a convenience store and a former pre-school that operated for approximately twenty (20) years. He submitted a petition of support for this project, signed by the following neighbors: Lisa Grebner and Mary Demaria of Essex Street, John and Hannah Desjardins of 12 Hathaway Avenue, and Betty Ekstrom of 16 Hathaway Avenue. Chairman Houseman asked if there was anyone from the public who would like to comment on the petition. No member of the public spoke at either meeting. The Board members then questioned the petitioner. At the May meeting, Mr. Schmidt noted that the property has an undersized lot, which renders it nonconforming. He asked why Mr. Morin was applying for a variance and not a special permit. He, Mr. Houseman, and Building Inspector Tim Brennan discussed this question. They agreed the question was technical, and could not reach an answer that night. They agreed to recommend to the Board as a whole that the question should be resolved before the Board voted. Otherwise there was a risk that the relief granted would be the wrong kind and therefore invalid. The Board then voted unanimously to continue the petition until the June hearing so that it could be filed and re-advertised as a special permit request. At the June hearing, the Board was presented a copy of the earlier zoning relief documents granted on the Parcel dated 1946 and 1980. The 1946 relief was a use variance for the expansion of a nonconforming use, not a dimensional variance. In 1980, the property owners received a special permit to operate a pre-school. Mr. Houseman explained that the grant of a variance does not render a property conforming, and that generally altering a structure on a nonconforming property would require a special permit. There was agreement in this case that the proper relief to grant was that of a special permit. At the June meeting, members of the Board made observations and obtained answers regarding the application criteria upon which findings must be made in order for the Board to grant a special permit. Mr. Ferguson stated that based on his observations the proposed alterations would not be more substantial than the existing non-conforming structure. Ms. Fish asked if the lot was non-conforming because of the front yard setback and Mr. Brennan confirmed this. Ms. Fish asked if Mr. Morin considered placing the addition on the other side of the building. Mr. Morin responded that an addition to the other side would be too close to the city’s water main to Hathaway street. He stated that he was prohibited from building any closer than 10 feet from it. Ms. O’Brien and Ms. Fish asked about abutters and Mr. Morin stated that his abutters were in support. Ms. Fish asked if the living quarters were on both floors. Mr. Morin stated that they were and added that he needs more living space because of his two children. Chairman Housemen asked if this proposal was still for an attached one-car garage with a family room above and Mr. Morin affirmed that it was. The Board incorporated its observations and Mr. Morin’s answers to its questions as its specific findings and made the following general findings about the proposed addition: (1) that the specific site is an appropriate location for the proposed garage addition, and that the character of adjoining residential uses will not be adversely affected; (2) that no factual evidence is found that property values in the district will be adversely affected by this addition; (3) that no undue traffic and no nuisance or unreasonable hazard will result from the addition; (4) that there are no valid objections from abutting property owners based on demonstrable fact; and (5) that adequate and appropriate City services are or will be available for the proposed addition. The Board also made a Section 6 finding that the non-conforming structure with the proposed addition added to it will not be substantially more detrimental to the neighborhood than the existing non-conforming structure. Following the questions and discussion, Ms. Fish made a motion, seconded by Ms. O’Brien, to GRANT the special permit. The motion carried 5-0. Chairman Houseman then clarified for the record that the initial request for a variance was not applicable to this petition. Ms. O’Brien made a motion to withdraw the variance with prejudice, seconded by Ms. Fish. The motion carried 5-0. 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