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Gillen - Special Permit Decisio Decision on Petition for a Special Permit Requested by David R. Gillen A public meeting of the Zoning Board of Appeals (the “Board”) was held on Tuesday January 28, 2003 at 7:00 p.m. at Beverly City Hall, 191 Cabot Street, Beverly, Massachusetts. The agenda included a petition by David R. Gillen for a special permit to encroach 16.5 feet plus or minus upon the required 20 feet front yard setback with a 6 feet by 40 feet roofed farmers porch, regarding the property located at 7 Leech Street (the “Parcel”). The property is located in a R-10 Zoning District. The public hearing on this petition was opened at the November 26, 2002 public meeting of the Board and was continued to the January 28, 2003 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, Margaret O’Brien, Andrea Fish and Scott Ferguson. Full member Mark Schmidt was absent at the November meeting and he recused himself at the January meeting. Alternate member Joel Margolis assumed a voting position at both meetings. Alternate member Jane Brusca was in attendance but not voting at the November meeting. She assumed a voting position in place of absent member, Andrea Fish at the January meeting. 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. Mr. David R. Gillen spoke on his own behalf at both meetings. At the November meeting Chairman Houseman noted that a variance was granted on this property in 1964, although a hardship was not established in the decision. He added that the new dwelling on the lot was constructed incorrectly on the lot by the contractor. Fish commented that the design of the proposed farmers porch was pleasant, however she did not recognize any hardship on the land. Houseman stated that the lot is nonconforming. He noted that City Solicitor Peter Gilmore has interpreted that the porch would create a new non- conformity, therefore a variance was required. Houseman and Fish concurred that they would not want to vote on this proposal as a variance application. Ferguson stated that former City Solicitor Marshall Handly interpreted this issue differently and the Board has made rulings based on that opinion in the past. O’Brien suggested that Mr. Gillen should return to the Board with plans for a special permit and not a variance. At the November meeting the Board voted unanimously to continue this matter until the January meeting so that the petition could be re-advertised as a special permit request. At the January meeting, Mr. Gillen stated that the petition had been re-advertised as a special permit request. Mr. Gillen submitted revised plans to the Board. Zoning Clerk, Diane Rogers submitted a folder containing variance information and photographs from 1964. Houseman read into record that in March of 1964 a variance was granted to encroach 5 feet upon the front yard. Mr. Gillen stated he was proposing to build a 6’ x 40’ farmer’s porch. He added that the photographs show there is no sidewalk on his side of the street. From the side of the dwelling to the actual asphalt is 18 feet. The stairs currently in front of the house stand at 5 feet from the lot line and the petitioner is asking for one more foot. The farmer’s porch would tie in with the second story addition that he would build. Chairman Houseman stated he made a site visit on Sunday, January 26, 2003. He walked around the neighborhood. The size of the proposal would not be out of character with the neighborhood. He is concerned that the porch will be extremely close to the street. He stated that there appears to be ledge in the front yard. Mr. Gillen responded that was correct. Houseman stated the City would most likely never install a public sidewalk there because of the steep rise of 3 or 4 feet, which would require significant blasting. Ferguson stated he also made a site visit on Sunday, January 25, 2003. He noted some confusion over the 1964 land survey and the current plans and he asked if the footprint of the building was getting larger. He stated that there will not be a significant impact on City services. Ferguson stated that the structure as altered would not be more substantially detrimental to the neighborhood. Chairman Houseman questioned if there were any members of the public that would like to comment on this petition. Joan Murphy of 36 Longmeadow Road asked if a portion of land in the front yard belonged to the City. Mr. Gillen responded yes. She asked if the land would remain City land. Houseman responded that it would remain City property although they would most likely never construct a sidewalk there due to the significant amount of blasting required. He added the other side of the street has a sidewalk. The Board incorporated its observations as its general findings of fact and made the following specific findings about the proposed addition: (1) that the specific site is an appropriate location for the proposed addition, and that the character of the adjoining uses will not be adversely affected; (2) that no factual evidence is found that the property values in the district will be adversely affected; (3) that no undue traffic, nuisance, or unreasonable hazard will result; (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. The Board also made a Section 6 finding that the expansion of the non-conforming structure will not be more substantially detrimental to the neighborhood than the existing non-conforming structure. Following the questioning and discussion, a motion was made by Ferguson to GRANT the special permit. Seconded by O’Brien. All members in favor. The motion carried 5-0 ( Ferguson, Houseman, O’Brien, Margolis and Brusca). 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, Joel Margolis Zoning Board Member