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Waters - Decision Decision on Petition for a Special Permit Requested by Dr. William H. Waters 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 Dr. William H. Waters for a special permit to enlarge the existing first floor dental office to include the second floor, move the residential unit from the second floor to the third floor of the existing building and to delete the restriction that the property reverts to wholly residential upon sale, regarding the property located at 127 Dodge Street (the “Parcel”). The property is located in a R-10 Zoning District. The August 27, 2002 public meeting of the Board was called to order by the Chairman, Scott D. Houseman. The following five members of the Board were present: full members Scott D. Houseman, Margaret O’Brien and Andrea Fish. Mark Schmidt and Scott Ferguson recused themselves on this petition. Alternate members Jane Brusca and Joel Margolis assumed voting positions. 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 Dr. Waters. Attorney Alexander stated that the request is to modify the variance for this property granted on May 20, 1975. He added that the doctor’s dental practice had grown during the past 27 years and that he would like to expand the first floor office to include the second floor. He added there were four rooms on the third floor and the building would keep the same footprint. He stated this proposal would not be more detrimental to the neighborhood than the existing use. The property abuts the CG commercial zone. An insurance company is across the street. Dr. Waters presented a petition signed by some 12 to 15 neighbors and abutters in favor of the application. Attorney Alexander quoted the condition from the prior variance that Dr. Waters would like deleted. He argued that the condition was invalid and not allowed by law in any event. The condition reads: "Should petitioner, as owner, sell the property, said property shall revert back to original residential zoning status." He argued that variances may not include conditions based on the continued ownership of the land, and cited M.G.L. c40A Section 10 as his authority for this assertion. Dr. Waters is nearing retirement age, this property is his primary financial investment, and he wants to be able to sell the building with his practice. Chairman Houseman questioned if any member of the public would like to comment on this petition. There being none, he asked the Board members for their questions and comments. Fish asked why the four rooms on the third floor were not considered a separate dwelling unit. Attorney Alexander responded that the third floor does not contain a bathroom or kitchen. Fish asked if there was only one dentist practicing and if additional parking would be needed for this expansion. Attorney Alexander stated there is only one dentist practicing and Dr. Waters stated there would be no change in the practice. He added that the lot is large and more parking could be added if necessary. Margolis suggested designating parking spaces for the third floor rental unit. O’Brien stated the property should be kept a professional office and not be used for retail uses. The Board incorporated its observations as its general findings of fact and made the following specific findings about the proposed use of the structure: (1) that the specific site is an appropriate location for a dental office as it abuts the CG zone and that the character of the adjoining residential neighborhood will not be adversely affected; (2) that no factual evidence was introduced or found that the property values in the district will be adversely affected by such use; (3) that no undue traffic, or increase in traffic, and no nuisance, or unreasonable hazard will result from the expanded use; (4) that adequate and appropriate facilities such as electricity and city water and sewer currently exist on the parcel; and (5) that there are no valid objections from abutting property owners based on demonstrable fact, and in fact many supported the application. The Board also made a Section 6 finding that the non-conforming structure with the proposed change in use added to it will not be substantially more detrimental than the existing non-conforming structure. Following the questioning and discussion, a motion was made by O’Brien to AMEND the 1975 variance to delete the specified condition and to GRANT the special permit, subject to two conditions, that: (1) the parcel shall remain and be allowed for only professional use, and retail uses shall not be allowed; (2) there shall be two designated parking spaces for the rental unit on the third floor. Seconded by Margolis. 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 Houseman Zoning Board Chairman