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Knight - Decision Decision on Petition for a Special Permit Requested by Judith A. and Stephen C. Knight A public meeting of the Zoning Board of Appeals (the “Board”) was held on Tuesday August 27, 2002 at 7:00 p.m. at Beverly City Hall, 191 Cabot Street, Beverly, Massachusetts. The agenda included a petition by Judith A. and Stephen C. Knight for a special permit to encroach 8 feet plus or minus upon the required 15 feet side yard with a 14 feet by 36 feet 7 inches one-story, three room addition containing a master bedroom, family room, and home office/study, regarding the property located at 5 Pearson Street (the “Parcel”). The property is located in a R-10 Zoning District. The public hearing on this petition was opened at the June 25, 2002 public meeting of the Board and was continued to the August 27, 2002 meeting. At both meetings, the hearing was called to order by the Chairman, Scott D. Houseman. The following five members of the Board were present: full members Scott D. Houseman, Mark Schmidt, Scott Ferguson, Margaret O’Brien and Andrea Fish. Alternate member Jane Brusca was in attendance at both meetings but not voting. Alternate member John Colucci was in attendance for the June meeting only but not voting. Alternate member Joel Margolis was in attendance at the August meeting only but not voting. 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. Attorney Thomas Alexander spoke on behalf of the Knights at both the June and August meetings. At the June meeting, Attorney Alexander noted that this dwelling was built in 1952 on the west side of Shoe Pond. He stated that the application is for a Section 6 special permit, upon the recommendation of the building department and the opinion of Assistant City Solicitor Robert Munroe from April of 2001. He stated that the addition would not be substantially more detrimental to the neighborhood than the existing non-conforming structure and the proposed addition would abut the right abutter’s garage. He commented that the existing basement contains ledge and the existing garage is constructed of cinder blocks, which makes it prohibitively expensive to build upon. To place the addition on the left side would require demolition of the existing garage and it would also encroach the left side yard. A petition was submitted with twelve abutting neighbors in favor of the proposal. A petition with 75 non-abutters in favor of the proposal was also submitted. Attorney Alexander also submitted a letter from the doctor of Mrs. Knight’s daughter stating that she had Rett’s disease, which causes muscle spasms and tics, and included a recommendation that she not climb stairs frequently. Chairman Houseman questioned if any member of the public would like to comment on this petition at the June meeting. Attorney Mark Glovsky, representing Michael Zotto of 12 Goodyear Street questioned the grounds for which a special permit could be granted under Section 29-26D of the Zoning Ordinance, which is referenced in the petitioner’s application. He believes this section is for non-conforming uses, not structures. Furthermore he stated that the addition would create an entirely new encroachment on the right side of the house, which would require a variance. He stated that the proposed addition would be too close to his client’s property line and it would affect the property values. After some discussion over whether this petition should come under a variance or a special permit, the Board voted to continue the public hearing in order to obtain memos from both attorneys Alexander and Glovsky and to obtain City Solicitor Peter Gilmore’s legal opinion on what kind of relief should be required for this application. At the August meeting, Attorneys Alexander and Glovsky presented brief arguments on the question of whether this petition should be an application for a special permit or for a variance. A letter from the City Solicitor dated August 27, 2002 was submitted indicating that the current use of the residence is conforming, therefore a variance is required in order to create a new encroachment upon the existing conforming right side-yard. The Board discussed the attorneys’ arguments and the City Solicitor’s opinion passionately and at length. Following this discussion, a motion was made by Fish that the Board adopt and follow the opinion rendered by the City Solicitor’s letter that a variance is required for this petition, seconded by O’Brien. The motion failed 3-2 (Houseman and Fish in favor.) The Board then considered whether the petition satisfies the criteria for making a Section 6 finding. Attorney Glovsky stated that the petition for a special permit was under Section 29-26D and there are criteria that need to be met that are different from the general criteria for a special permit under Section 29-27C. Specifically, he stated that a finding must be made that the relief requested will not depart further from the intent of the Chapter and that the prior use or degree of use will not expand more than 25 percent. He set forth the math involved and concluded that the criteria can not be met. Attorney Alexander stated that the applicant filed for a special permit at the Building Inspector’s office without his assistance and that part of the Zoning Ordinance is not relevant. Houseman stated that in his opinion the majority vote by the Board was to hear this petition as a Chapter 40A Section 6 finding as it has always understood and applied that in the past. In addition, the published notice for this application did not reference Section 29-27C. Consequently in his opinion, the Board's standard Section 6 criteria applies, not the criteria pursuant to Section 29-26D. Schmidt and the other members concurred. Following the questioning and discussion, a motion was made by Schmidt that the Board find that the proposed change, extension or alteration of the property is not substantially more detrimental than the existing non-conforming structure or use to the neighborhood, that the criteria for a special permit required by the zoning ordinance are satisfied, and that the Board GRANT the application. Seconded by O’Brien. The motion carried 4-1. 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 Houseman Zoning Board Chairman