Zoning Board of Appeals - July 21, 2021 Meeting Minutes

City of Salem Zoning Board of Appeals
Meeting Minutes
July 21, 2021

A meeting of the Salem Zoning Board of Appeals (“Salem ZBA”) was held on Wednesday, July 21, 2021 at 6:30 pm via remote participation in accordance with Chapter 20 of the Acts of 2021.

Chair Mike Duffy calls the meeting to order at 6:30 pm.

Chair Duffy explains that pursuant to Governor Baker’s previously existing March 12, 2020 Order Suspending Certain Provisions of the Open Meeting Law, G.L. c. 30A, §18, and the Governor’s March 15, 2020 Order imposing strict limitations on the number of people that may gather in one place, as well as Chapter 20 of the Acts of 2021, the Zoning Board of Appeals meeting scheduled for Wednesday, July 21st at 6:30 pm is being held remotely via Zoom.  Chair Duffy explains that instructions to participate remotely can be found on the Salem website.  Chair Duffy also explains the rules regarding public comment.

ROLL CALL                                                                                                                

Those present were: Mike Duffy (Chair), Carly McClain, Peter Copelas, Rosa Ordaz, Steven Smalley, and Paul Viccica.  Also in attendance were Lev McCarthy – Staff Planner, Tom St. Pierre – Building Inspector, and Jonathan Pinto – Recording Clerk.  Those absent were: Jimmy Tsitsinos

REGULAR AGENDA                                                                                                                                                                                                                                  

Documents and Exhibitions   

• Application date-stamped February 24, 2021 and supporting documentation

Chair Duffy introduces the petition and explains the applicant has requested to continue to the next regularly scheduled meeting.

Mr. McCarthy indicates the applicant could not be at the meeting but that they provided a letter, which he reads.  The letter requests a continuance to the September 22 meeting of the Zoning Board of Appeals, as the applicant is making programmatic adjustments to address concerns regarding traffic and parking.  The letter is signed by attorney Scott M. Grover.

Mr. Copelas states he wishes Mr. Grover were in attendance, and that while the petition is a complicated one, this is the fourth request for a continuance.  Mr. Copelas expresses discomfort with the number of continuances, and while he does not suggest the Board decline the request, he notes this is not an infinite process, and that he hopes to get something definitive before the Board soon.

Chair Duffy acknowledges Mr. Copelas’ concerns, and states that applicants always have the option to withdraw and refile at a later date.  Mr. Duffy suggests granting the continuance tonight as the applicant and counsel are not present to answer questions, subject to the proviso or notice that a fuller discussion of the project is required, otherwise the petitioner should withdraw.

Mr. Copelas suggests it could even be informal, with a message from Mr. McCarthy.  Mr. Viccica states it is important for Mr. Grover to come to the next meeting, particularly if he intends to request another continuance.  Mr. Viccica asks if the continuance has to be to the September meeting.  Chair Duffy indicates the Board could direct the applicant to come before the Board in August, but that it sounds like they are working on extensive revisions.

Ms. Ordaz states she would prefer a written request from the Chair and Mr. McCarthy to the applicant, as the proposal has 18 public comments to date, and at a prior meeting a member of the public expressed frustration regarding the continuances.  Ms. Ordaz indicates she would not be in favor or Mr. Grover speaking and taking up time at the next or September meeting, only to continue once again.
 

Chair Duffy clarifies that the Board could provide written instructions now, indicating a continuance has been granted but that someone must show up in September.  If the applicant is not ready to proceed, they should consider withdrawing and reapplying at a later time.  Mr. Viccica opines that is fair.  Ms. Ordaz suggests the applicant should withdraw ahead of the meeting, or move forward at the September meeting.

Motion and Vote: Mr. Copelas motions to continue the petition of NORTH SHORE COMMUNITY DEVELOPMENT COALITION, INC. for a special permit per Section 3.1.2 Special Permit: Zoning Board of Appeals of the Salem Zoning Ordinance to operate a Medical Clinic at 73 LAFAYETTE STREET (Map 34, Lot 430) (B5 and ECOD Zoning Districts) until the next regularly scheduled meeting of the Zoning Board of Appeals on September 22, 2021.

Ms. Ordaz seconds the motion.  The vote is five (5) in favor ((Paul Viccica, Rosa Ordaz, Mike Duffy (Chair), Carly McClain, and Peer Copelas) and none (0) opposed.  The motion passes.

Documents and Exhibitions   

• Application date-stamped May 24, 2021 and supporting documentation

Chair Duffy introduces the petition.

Attorney Nicholas Gomes introduces himself on behalf of the applicant, Prime Tree, LLC, and explains he is also a co-owner and counsel.  Mr. Gomes indicates he appeared at the June meeting and presented an overview of the proposed cannabis cultivation and manufacturing facility.  He is before the Boarding continuing the request for a special permit with supplemental information.  Mr. Gomes provides a brief overview, and notes the project is a collaboration of Massachusetts residents and out of state experts coming together to bring forth a cannabis cultivation facility, with a local and diverse workforce.  He explains the manufacturing would be light and not solvent based, but rather hand drawn methods and pre-rolls.  The applicants seek a responsible plan of growth over the next few years, starting with a 10,000 square foot canopy and eventually building up to 30,000 square feet (moving from Tier 2 to Tier 4).

Regarding further details requested by the Board, Mr. Gomes indicates the Salem police and fire departments have reviewed and approved the applicants security and emergency plans, as well as the odor control plan and transportation plan.  Mr. Gomes reviews the rear loading and unloading dock details and presents schematics of the area next, noting an upgraded system of locked and secured gates.  The entire rear portion of the building will be used, and allow authorized vehicles to enter and secured during loading and unloading.  He shows security upgrades in the rear as well.  Mr. Gomes discusses the transportation details, noting that unlike a retail establishment, there will not be substantial traffic increases or congestion issues.  Mr. Gomes discusses the trips and safety requirements in more detail, noting that all non-employees must be escorted on the premises.  There will be sufficient parking for all employees, even at the maximum buildout, along with nine additional visitor spots if necessary.  Mr. Gomes emphasizes that the operation would be run in a safe manner with constant monitoring, and essentially make the neighborhood safer.

Mr. Gomes next discusses odor control, noting that the location was chosen specifically because of the natural landscape and buffering of stone and forest between the building and residential areas.  Mr. Gomes indicates the proposal should be looked at similarly as a lab in its design.  The inside of the building would be broken up into smaller rooms to allow for climate, light, and temperature to be controlled.  Mr. Gomes explains that growing, lighting, and plant cycles would be staggered, so the cannabis would not all be flowering at once.  This lessens the load on the general system, and also reduces odor.  Office and employee areas would not have any cannabis odors according to Mr. Gomes, and further explains that the air purification process will be multifaceted.  The air will be captured, treated,  and filtered through a carbon based system, before any exhaust leaves the facility.  Mr. Gomes states the petitioners are committed to odor control and will be responsive to any concerns or issues that arise.  He notes the applicants have researched additional measures and examples of odor enhancement, such as making the air outside of the facility smell good.  He adds that this is something Disney World does to attract customers.  Mr. Gomes indicates this is just an example of further measures that could be taken if necessary.  He states the applicants would like to be honest and transparent about the project, and that it would be dishonest to say there would be no odor whatsoever, but that the applicants will take every action necessary so that any odor does not rise to the level of being a nuisance, as required under law, CCC regulations, and the host community agreement with Salem.

With respect to utilities, Mr. Gomes explains the internal group as well as architecture and engineering firms analyzed the plan, particularly with regards to the sanitation and water flow.  The water is from the City water supply, but the facility would hold the water and treat it before introducing it to the cultivation process.  Mr. Gomes indicates this allows for flow regulation so there is not a constant drain on resources.  He adds the facility will use planted pots with soil based medium rather than a hydroponic system, minimizing water use, and states that it is standard practice to not have standing water to minimize pathogens.  Mr. Gomes explains that the sanitation pipes are commensurate with the existing sanitation system the City has on Technology Way, and that based on the anticipated flows the existing infrastructure is sufficient for the intended use.  Mr. Gomes maintains that in the event of any future needed changes, the applicants see themselves as responsible with respect to water and electricity.  Mr. Gomes avers the team had initial conversations with National Grid to ensure the use was reasonable and determine what upgrades would be necessary.  Based on the proposed tiered approach, the petitioners and National Grid do not anticipate needing to change the three-phase system, but Mr. Gomes states that load use will be analyzed to determine what upgrades might be necessary to meet a more scaled approach.

Mr. Gomes argues the petitioners intend to comply with all City statutes, regulations, and ordinances and that Prime Tree will be responsible to meet all building codes, CCC regulations, and be subject to an architectural review as part of the application process.  He notes the process began with community outreach and discussions with Department heads and abutters, and that the process will continue with further reviews and negotiations.  Mr. Gomes indicates the petitioners worked hard on the draft host community agreement, and that they intend to comply with the final agreement, which offers protections for many of the concerns previously raised by the Board.

Mr. Viccica asks if a civil engineer is present.  Mr. Gomes indicates there is a representative from Towers Pinkster, Jason Novotny.  Mr. Viccica next asks if the applicant has a letter from the Salem Police indicated the safety protocols were reviewed and approved.  Mr. Gomes explains that Police Chief Lucas drafted a letter dated July 16^th, and that the Fire Department provided their letter today.  They are both on the online portal, along with the Towers Pinkster correspondence.

Mr. Viccica asks Mr. Novotny if the existing six-inch water line going into the building serves the entire facility, noting he has concerns regarding water, drainage, and storm water.  Mr. Novotny confirms Mr. Viccica’s understanding of the six inch line.  Mr. Viccica asks if he has looked at all the calculations and if the capacity the City provides in terms of water is adequate, or if the City will be responsible now or in the future with scaling for capacity upgrades.  Mr. Novotny explains that the primary driver of water consumption, even at full buildout, will be employee and convenience areas rather than the actual cannabis cultivation.  Mr. Novotny explains the engineering calculations more, and that the watering tanks can be filled slowly and at any time of day.  Mr. Novotny states he is comfortable that adequate capacity already exists for the final buildout scenario.

Mr. Viccica asks about storm water next, noting there is currently a detention basin.  He asks if with the buildout there is any intent to reconstruct the detention basin.  Mr. Novotny defers to Pat Maloy, who states there will be no change to discharge.  Mr. Maloy contends the water that will fall on the impermeable surface will not be affected by the internal operations at all.  Mr. Maloy adds that based on due diligence the storm water runoff facility has worked as designed and permitted ten years ago.  The goal is to not add any water to the storm water, and make sure no nutrients from the site end up in the storm water runoff according to Mr. Maloy.  Moreover, Mr. Maloy explains that the slow fill tank system for fertilization and irrigation works via drips, so the only expiration of the building will come from humidification and dehumidification from the cooling system.  There will be no discharge or surface water. 

Ms. McClain asks about the odor enhancements referenced earlier, such as pumping out smells like those of baked goods.  Mr. Gomes explains that he was merely showing what types of technology exists, and that the intent is to use internal controls so odor will not escape, but that if necessary scent enhancements could be used to mitigate odor.

Chair Duffy opens the floor to public comment.

Tim Doggett introduces himself as a representative from Thermal Circuits at 1 Technology Way.  Mr. Doggett states he has concerns because his operations use a considerable amount of electricity in their processes as well as water and sewers.  He states he welcomes the petitioners, but would like to be assured that their addition will not inhibit any of those areas.  Mr. Doggett is pleased the Board has been paying attention to such concerns.  He adds that he would like assurances that the petitioners have no intentions of getting into the retail business, as the business park area was never designed for retail.

Mr. Gomes suggests the location is appropriate for the proposed use and that it will not be a burden so as to affect other industries on Technology way, particularly with respect to utilities and traffic.  Mr. Gomes stresses that Prime Tree wishes to be a good community partner to neighbors and the community at large.  Regarding concerns about retail, Mr. Gomes assures that that is not being proposed for location, and that the business model is strictly for cultivation and light manufacturing.

Mr. Copelas notes the Board went through a long exhaustive process a few years ago when other retail and cultivation proposals were coming before the Board, and that they knew that there was a certain number of retails allowed.  He adds that a cultivation facility was approved, but has not moved forward.  Mr. Copelas asks if the approval of this petition would void the previously approved cultivation facility on Jefferson Avenue.  Mr. Copelas states he is confused about the relationship between a previously approved petition for a cultivation facility.  Mr. St. Pierre indicates there is not any connection between the two.  Mr. St. Pierre clarifies that retail and cultivation are two separate groups, and that the City has not been limited to one cultivation site.  Therefore, he states he does not see how one would impact the other.

Mr. Viccica notes that the Board approved more than the allotted five for retail in Salem, and that this was just one part of a longer process with various stages, which then became a race to see who would get through first.  Mr. Viccica says there may be a limit on the number of cultivation facilities but that he is not aware of such a limit.

Mr. Copelas states it is possible that the Jefferson Avenue permits have not come before the Board for extensions, and so he is not sure if they are moving forward, but was curious if there was a limit similar to retail.  Mr. St. Pierre states he is not aware of such a limit, and that the legal department is aware of the petition and would have flagged such an issue.

Mr. Gomes confirms there is no restriction or cap on the number of cultivation licenses in a municipality, only on retail.  He clarifies that the limitation is on canopy size.

Chair Duffy discusses the special permit criteria and how they are met by the applicant.  He also notes the prior Board concerns, which have been addressed by the petitioner.

Motion and Vote: Mr. Viccica  motions to approve the petition of PRIME TREE LLC for a special permit per Sections 6.10.4, 6.10.9 Requirements Specific to Cultivation Facilities, and 6.10.10 Requirements Specific to Manufacturing Facilities of the Salem Zoning Ordinance to operate a licensed marijuana cultivation and manufacturing facility at 4 TECHNOLOGY WAY (Map 7, Lot 87) (BPD Zoning District) subject to the following standard conditions:

1. Petitioner shall comply with all city and state statutes, ordinances, codes, and regulations.
2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner.
3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to.
4. Petitioner shall obtain a building permit prior to beginning any construction.
5. Exterior finishes of the new construction shall be in harmony with the existing structure.
6. A Certificate of Occupancy is to be obtained.
7. A Certificate of Inspection is to be obtained.
8. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board.
9. All construction shall be done per the plans and dimension submitted to and approved by this Board.  Any modification to the plans and dimensions must be approved by the Board of Appeals unless such changes are deemed a minor field change by the Building Commissioner in consultation with the Chair of the Board of Appeals.
    

And the following special conditions for marijuana cultivation facilities:

1. The applicant shall not operate until the issuance and submission of a copy of the issued state license by the Commonwealth and all other state and local requirements are met.
2. A community host agreement shall be executed with the City within six (6) months of issuance of this special permit.  A six (6) month extension can be granted by the Board of Appeals if good cause is shown.
3. The applicant shall be issued a state license within six (6) months of the issuance of this special permit.  A six (6) month extension can be granted by the Board of Appeals if good cause is shown.
4. The Petitioner shall use high-efficiency lights and equipment to limit energy and water usage demand.
5. The petitioner shall use LEDs for all fixtures except for those that are used in flowering rooms.  High Pressure Sodium grow lights may be used for no more than fifty percent (50%) of the total square footage of the cultivation area to maximize flowering conditions and limit electricity demand.
6. No more than one-half of the marijuana plants may be mature flowering plants.
7. No pesticides, insecticides, or other chemicals shall be used in the cultivation of marijuana.
8. The petitioner shall comply with all regulations that may be promulgated by the Cannabis Control Commission (CCC).

Ms. McClain seconds the motion.  The vote is five (5) in favor (Paul Viccica, Mike Duffy (Chair), Peter Copelas, Carly McClain, and Steven Smalley) and none (0) opposed.  The motion passes.

Documents and Exhibitions

• Application date-stamped May 32 [sic], 2021 and supporting documentation

Chair Duffy introduces the petition.

Walker Simons introduces himself as the property owner at 19 Woodside Street, and explains that he and his wife moved to Salem in 2006 and found their dream home in 2014.  Since then, he explains, they have been making improvements such as efficiency.  After noticing the porch was falling apart and rotting, Mr. Simons determined it would need to be replaced.  During the planning process, the design was to extend the porch around the right side of the house for easier access to the back yard, as the property is on a steep incline with retaining walls and you currently need to go through the house or around the left to get to the porch side of the house.

Mr. Simons presents plot plans and discusses the special permit criteria.  Social and economic needs are met by replacing the rotting porch for safety, as well as making easier access to the rear yard.  There will be no effect on traffic, safety, parking, or loading and the occupancy is not changing.  Mr. Simons states that adequate utilities already exist for the house, and that there will be little to not impact on the natural environment during construction.  The neighborhood character would not be impacted because there are similar projects in the neighborhood according to Mr. Simons, and the assessed value will rise, resulting in a positive impact on the City tax base.  Mr. Simons next presents plans and elevations.

Mr. McCarthy notes that Ms. McClain is recusing herself from this matter, and that Mr. Smalley will be stepping in.

Mr. Copelas asks for clarification regarding four of the site photos.  Mr. Simons explains that they are meant to support the claim that the neighborhood is not affected, as the surround homes are closer to the street than the proposed porch even with the non-conformance.  Mr. Copelas next asks if the project has already been started.  Mr. Simons states that it has.  Mr. Copelas asks how Mr. Simons came to get half way through before applying for the permits required.  Mr. Simons explains that he engaged an architect for the project long ago, planning and saving for years.  When they were initially ready there was a garage in play they were trying to build the retaining wall.  The architect informed Mr. Simons he would need to see the Planning Board, and suggested using Precision Remodeling and Construction to do the work.  Mr. Simons indicates when the project was handed off there were miscommunications and the new project manager thought the zoning was only required for the garage.  Once it was permitted Mr. Simons believed the project was ready to move forward.  Mr. Simons explains he was trying to do everything properly in accordance with law, and when the contractors said they could start he believed things were all set as he was not familiar with the process.  Once aware of the error, Mr. Simons contends he went downtown to fill out the forms and paused construction.  He adds that he was not trying to hide anything, and that he scheduled all necessary inspections.  Mr. Copelas thanks Mr. Simons for the explanation.  

Mr. Copelas notes in the petition materials it states that the front yard setback is being extended, but that since the old porch is no longer in existence it is difficult to verify.  Mr. Copelas suggests the size of the structure seems out of proportion to the rest of the house.  He also states he is bothered by the fact that the way the porch wraps around it looks to further impinge on the front setback.

Mr. Simons maintains he is not trying to build any closer to the street than what was there before, and that it can be verified from the plot plans as they were done prior to construction starting.  He states the setback is the same.  Chair Duffy notes the plot plan shows a distance of 9.3.  The Chair asks if the plot plan was done by a surveyor or if the architect added to a preexisting plan.  Mr. Simons states they were scheduled before the contractor was hired, and that they hired a surveyor.

Mr. Viccica asks about the box drawn adjacent to the house on the plans.  Mr. Simons indicates he added that to indicate the dimensions of the extension.  He explains it is a brick patio.  Mr. Viccica states he seems to be the same proportions as the original porch, just with another bay to wrap around.  He opines that it is not higher than the original either.  Mr. Viccica notes that google street view does not show the new construction yet, and you can see that the baluster that is being or will be replicated, as well as the Greek revival pediment are being reconstructed as they were.

Mr. Copelas suggests that from the street scape what looks out of proportion is nine feet extending to the right beyond the side of the house.  He adds that it has a very large and imposing look to it from the street.  Mr. Simonds indicates it is similar to some of the other houses around the block with porches that go around.

Mr. Viccica states that the ZBA does not get to affect any aesthetic, and hopes that the hired architect would be cognizant of scale.  He adds that it is a beautiful house.

Mr. Copelas says he does not wish to belabor the point, but that it always strikes him when applicants come before the Board with projects half way completed, and suggests they deserve a bit of extra scrutiny.

• Won’t belabor point, but always strikes me when coming into project half way thru, deserve a bit of extra scrutiny

Chair Duffy opens the floor to public comment.

Philip O’Donnell of 25 Woodside Street introduces himself as an abutter.  Mr. O’Donnell has been here 26 years and states the Simons have been great neighbors since moving in.  He has no objections to the construction, and suggests it adds integrity and value to the neighborhood.  Mr. O’Donnell suggests it was likely an honest mistake, and states he hopes the Board allows the applicant to have the porch finished.

Mary Beth and Carl Misrobian of  23 Woodside Street introduce themselves and state that the Simons’ are great neighbors.  They note they have been here 25 years and that it is nice to see the Simons’ making improvements to the property.  The Misrobian’s voice support for the project.

Chair Duffy explains how application meets special permit criteria, and notes that the proposal is a minor change to the prior condition..

Motion and Vote: Mr. Copelas motions to approve the petition of WALKER SIMONS for a special permit per Section 3.3.5 Nonconforming Single- and Two-Family Residential Structures of the Salem Zoning Ordinance to alter and expand a nonconforming single-family home by expanding an existing first-floor porch in the required front yard setback at 19 WOODSIDE STREET (Map 17, Lot 191) (R1 Zoning District) subject to the following standard conditions:

1. Petitioner shall comply with all city and state statutes, ordinances, codes, and regulations.
2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner.
3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to.
4. Petitioner shall obtain a building permit prior to beginning any construction.
5. Exterior finishes of the new construction shall be in harmony with the existing structure.
6. A Certificate of Occupancy is to be obtained.
7. A Certificate of Inspection is to be obtained.
8. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board.
9. All construction shall be done per the plans and dimension submitted to and approved by this Board.  Any modification to the plans and dimensions must be approved by the Board of Appeals unless such changes are deemed a minor field change by the Building Commissioner in consultation with the Chair of the Board of Appeals.

Ms. Ordaz seconds the motion.  The vote is five (5) in favor (Rosa Ordaz, Steven Smalley, Paul Viccica, Mike Duffy (Chair), and Peter Copelas) and none (0) opposed.  The motion passes.

Documents and Exhibitions   

• Application date-stamped June 17, 2021 and supporting documentation

Chair Duffy introduces the petition.  

Attorney John R. Keilty introduces himself on behalf of the applicant, INSA, Inc., who was last before the Board in December 2018.  Mr. Keilty explains that at that time, the applicant requested a special permit to convert the building they now own to a marijuana establishment.  The petitioner met with the police department and Mayor, developed a host community and were granted the special permit.  Mr. Keilty explains the petitioner is now again before the Board seeking a permit to amend the original special permit to allow for an addition at the rear portion of the building.  The 67 by 13 foot addition would have a training facility, conference room, and additional security, as well as secure places on premises to store the product.  Mr. Keilty informs the Board he is accompanied by architect Thomas Peterman, as well as Steve Riley to answer any questions.  Mr. Keilty notes the first set of plans filed with the Board showed the addition, but not the replacement of security measures.  An updated set of plans were forwarded to the Board, and the same security measures that exist will be replicated.  Mr. Keilty explains that fences on premises will create an area where the delivery trucks can have access while locking the gates behind them to offload product.  Mr. Keilty describes some additional security details.

Ms. McClain asks if the parking lot will need to be reconfigured or if there will be any changes and how that might affect the parking for Walmart.  Mr. Keilty indicates there will be no change in the relationship with Walmart and that they are not reconfiguring the parking.  He adds that the additional area is not intended to be utilized for additional parking.

Chair Duffy asks if there will be any changes to staffing or employee count, and Mr. Keilty responds there will not.  Mr. Reily of INSA, Inc. states there will be no additional staff as a result of the expansion.  Mr. Reily explains that they are tight on space and the expansion will be used to house a vault, conference room, and offices.  The front retail portion will remain the same with no change in the flow of operations according to Mr. Reily.  Chair Duffy asks if the security plan has been shared with the police, and Mr. Reily indicates it has.  He states he worked with Bob Mulligan on the final proposed security details.  Regarding other questions about security during construction, Mr. Reily states the project architect can explain it in more detail, and that a new wall will be constructed with security implementations, and the existing wall will only be breached once the new one is secured and in place.  Mr. Reily notes INSA will work with the CCC throughout the process as it is a requirement.  Chair Duffy asks if operations will continue during construction, and Mr. Reily indicates it will operate as is.

Mr. Viccica asks about the training center, specifically who will be trained.  Mr. Reily explains it will just be the store employees.  Mr. Reily indicates the company is based in Western Massachusetts, and that is currently where all trainings take place.  For staff in the Eastern part of the state here in Salem, Mr. Reily states they wanted to be able to train them without making them go to East Hampton.  He explains that it is essentially a conference room with space for training staff.  Mr. Viccica asks how many people will attend training events.  Mr. Reily states it would be four or five employees at the most, and that it would not include Western Massachusetts employees, just local staff.  He adds that there will be no increase in retail traffic from this expansion, but that it will provide space for employees and meetings, which currently occur in a hallway due to lack of space.

Ms. McClain asks about the impact of blasting on the camp next door and when such activitiy might occur.  Mr. Reily explains they have started some work, but that there will not be any blasting, just scraping of rock.  He adds that it will not go on long, suggesting it should be completed in a week or so.  The work would occur within the hours of 8AM to 5PM.

Chair Duffy opens the floor to public comment but there is none.

Chair Duffy discusses the special permit criteria and how they are met by the applicant.  Chair Duffy suggests a special condition that the applicant supply a letter from the police department indicating the security changes have been reviewed and are approved.

Mr. Viccica asks the petitioner if they are within the setback requirements for the side and rear with the new addition.  Mr. Reily indicates there was an issue which was vetted with the building commissioner, and that it was suggested they amend the special permit rather than obtain a variance.  Mr. St. Pierre confirms.

Motion and Vote: Mr. Copelas motions to approve the petition of I.N.S.A., INC. for a special permit per Section 3.1.2 Special Permit: Zoning Board of Appeals of the Salem Zoning Ordinance to expand an existing licensed retail marijuana establishment at 462 HIGHLAND AVENUE (Map 3, Lot 2) (B2 and ECOD Zoning Districts) subject to the following standard conditions:

1. Petitioner shall comply with all city and state statutes, ordinances, codes, and regulations.
2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner.
3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to.
4. Petitioner shall obtain a building permit prior to beginning any construction.
5. Exterior finishes of the new construction shall be in harmony with the existing structure.
6. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board.
7. All construction shall be done per the plans and dimension submitted to and approved by this Board.  Any modification to the plans and dimensions must be approved by the Board of Appeals unless such changes are deemed a minor field change by the Building Commissioner in consultation with the Chair of the Board of Appeals.

And the following special conditions:

1. Petitioner shall provide an updated letter of approval from the Salem Police Department regarding security related to the construction (safety plan)
2. All conditions from the prior plan must be incorporated into the updated plan.

Ms. Ordaz seconds the motion.  The vote is five (5) in favor (Paul Viccica, Rosa Ordaz, Carly McClain, Mike Duffy (Chair), and Peter Copelas) and none (0) opposed.  The motion passes.

Documents and Exhibitions   

• Application date-stamped June 10, 2021 and supporting documentation

Chair Duffy introduces the petition. 

Attorney John Keilty introduces himself on behalf of the applicant and explains the matter is an administrative appeal of a decision of the building inspector.  Mr. Keilty requests to continue to the next regularly scheduled Board meeting on August 18, 2021.

Chair Duffy asks why a continuance is being requested.  Mr. Keilty states there is a possibility that a permit may issue for the lot in its entirety, which would make the appeal moot.

Chair Duffy asks if Mr. Keilty will be requesting a continuance in the next matter on the agenda as well, and he responds that the next matter will go forward.  Chair Duffy indicates it seems to make sense to continue to the next meeting.

Motion and Vote: Mr. Copelas motions to continue the petition of CASTLE HILL REALTY GROUP, LLC to appeal a decision of the Building Inspector per M.G.L ch.40A sections 8 and 15 to construct two foundations for two single-family dwellings at 0 STORY STREET (Map 23, Lot 12) (RC Zoning District) to the next regularly scheduled meeting on August 18, 2021:

Ms. Ordaz seconds the motion.  The vote is five (5) in favor (Mike Duffy (Chair), Peter Copelas, Rosa Ordaz, Paul Viccica, and Carly McClain) and none (0) opposed.  The motion passes.

Documents and Exhibitions   

• Application date-stamped June 10, 2021 and supporting documentation

Chair Duffy introduces the petition.

Mr. Keilty introduces himself on behalf of the applicant, who is seeking variances that would allow for the development of an area of land shown on the plans before the Board which is 18,800 square feet (Lot C).  Mr. Keilty explains the relief being sought frontage, lot width, and setbacks.  He notes the maximum number of stories is in compliance at two, and that the building would also be within the height restriction of 35 feet.  Mr. Keilty provides a zoning summary and describes the presence of wetlands on the site, which forces the building to the front of the property and pulls the house closer to Cleveland Street.  He adds that the matter already came before the Conservation Commission, and they provided a permit with order and conditions for a structure to be located in the proposed position on the lot.

Mr. Viccica asks for elevations, and Mr. Keilty informs him there are none.  Mr. Viccica suggests the application is therefore incomplete.  Mr. Viccica indicates there is a bigger story behind the request, and he would like to make sure the Board is not looking at piecemeal requests for a site that came before the ZBA a few years ago, which originally proposed several homes to be built and has come before the Planning Board several times.  Mr. Viccica acknowledges the site is complicated and has some issues, but states that applications must be complete.  He then asks Mr. St. Pierre to provide some background regarding the site.

Mr. St. Pierre disagrees with Mr. Viccica regarding the need for elevations at this time, noting that if the variance is approved it will require an ANR plan with the Planning Board.  Mr. St. Pierre explains the parcel has some history, noting that it went to the Planning Board after first coming before the ZBA and receiving approval for three homes with unusual driveways.  The planning Board did not approve the proposal, and that decision was subsequently appealed.  Mr. St. Pierre indicates this new proposal before the Board uses some of the previous material, but has been updated with counsel and the City’s own legal department.

Mr. Viccica asks if this would affect the decision previously made by the Board, and if it would be negated by the creation of this parcel.  Mr. St. Pierre indicates the applicant did not act on the prior approval, and that it has likely timed out.  Further, the applicant has no intention on acting on the prior approval as it was not also approved by the Planning Board.  Mr. Keilty confirms, and explains that the applicant is before the Board and the Conservation Commission attempting to obtain some yield out of these lots in order to achieve a resolution for the entire matter.  He also notes there is an appeal pending in the superior court.

Mr. Viccica asks if the request is to only create a lot, or for the footprint of a building on the site, noting that if it is the latter, an elevation is required.  Mr. Keilty explains the request this evening is a pure variance and not a special permit.  Mr. Keilty contends the applicant is proposing Lot C, and to locate a dwelling on that lot.

Mr. Copelas suggests there seems to be some intersection between the appeal of the building commissioner’s decision in the previous matter, because there appears to be some question about the status of Cleveland Street as it extends farther than it is currently constructed, and whether it had to do with the merger of adjacent lots.  Mr. Copelas asks if acting on this petition would impact the appeal, and wonders if it makes sense to approach the matter in a piecemeal fashion.

Mr. Keilty explains that an approval by the Board tonight would create the proposed Lot C.  Once created and if not appealed, the applicant would move forward (pursuant to compliance with any conditions) and would seek an eventual dismissal of the appeal of the subdivision plan.  Regarding the appeal of the building inspector’s decision, Mr. Keilty is hopeful that between now and August 18^th the applicant would be in a position to drop the appeal, with the goal of an eventual resolution.

Mr. Copelas asks Mr. St. Pierre if he would be confident and comfortable with the results of the Board approving Lot C, given the previous denial of the other petition having to do with merger and Cleveland Street serving as a buffer between two lots.  Mr. St. Pierre indicates he is, and that this was done in consultation with City Counsel Beth Rennard as well as outside legal counsel.  The process involved several discussions regarding points of law about old subdivisions, and what is before the Board seemed to be a reasonable proposal to create a clean new lot provided the variances are granted, according to Mr. St. Pierre.  Cleveland Street, which is currently a paper street, would be extended to accommodate this home and one additional home on the left.  Mr. Viccica and Mr. St. Pierre confirm that in previous petitions there were three lots on the property in question, and that the result of this proposal would be the approximately 18,000 square foot lot and a larger buildable lot to the left.  Mr. St. Pierre explains that most of the larger lot is unbuildable due to the location of wetlands.

Mr. Viccica again raises concerns regarding the existing prior decision by the Board approving multiple houses.  Mr. Keilty states he would be happy to agree to a decision that explicitly negates the prior decisions.  Mr. Copelas states it would be a good idea to void and negate the previous decision affecting the parcel.  Mr. Viccica states it is interesting that a special permit allows the Board to see what the house would look like with elevations but a variance does not.

Chair Duffy opens the floor to public comment.

Linda Partipierro of 15 Story Street introduces herself and notes the back of her home abuts the 0 Story Street property.  Ms. Partipierro indicates she sent a long detailed letter to the Mayor and Beth Rennard and others in the City.  She states this is the most confusing piece of property she has ever seen in her life.  Ms. Partipierro says she is a 73 year old homemaker paying $1,000 a month in property taxes, and that she attended the Conservation Commission’s meeting the previous night.  She indicates the applicant is proposing a 30 by 60 foot barn on the property with chickens and ducks, but that the Conservation Commission found no plan had been provided to allow for permission to locate that on wetlands.  She explains that Lot C abuts her property, and there is supposed to be a retaining wall, but rather than two feet, the property has a six to seven foot drop with no retention wall, which is concerning as she has a two year old and blind son-in-law at home.  Ms. Partipierro indicates the applicant has already dug a foundation at the top of the hill by St. Anne’s School Hall, and that she would like to see an entire layout of the property and what the applicant intends to do.  She expresses concerns that there are no pictures of the proposed house, and is bothered by what she claims is a sudden inclusion of a garage not previously proposed.  She notes this plan may be the tenth or fifteenth revision, and that whatever occurs will be visible from her back yard.  Ms. Partipierro states her home has been in the family since 1904 and that she is confused about what is going on, and that it is unclear how the street will be laid out.  She asks if the property was surveyed using an actual plan or just by the applicant.  Ms. Partipierro expresses concerns regarding the wetlands as well.

Alma Pelletier of 3 Horton Street introduces herself and states she is also confused by the proposal, suggesting there will likely be more buildings given the rock wall to be extended along the left side.  Ms. Pelletier notes the barn was mentioned last night at the Conservation Commission meeting but there was no mention of it today, and she wonders if it is even the same property.  She notes that water often rushes down Cleveland Street, and that calling the property 0 Story Street is confusing.  Ms. Pelletier states it is disheartening to see what is occurring.

Mr. St. Pierre explains that the surveys are new and professional.  Regarding the wall at the end of the property, he states he is aware that a vertical cut was made.  He adds that the Engineering Department is putting the applicant in violation and will require the retaining wall be constructed.  The City will not issue building permits until all violations are addressed and in compliance with City ordinance.  Mr. St. Pierre acknowledges the property, history, and proposal are confusing, but that the City and applicant have been trying to work through it.

Chair Duffy asks if the wall cut in Lot C is being proposed, and Mr. St. Pierre explains the elevation difference in more detail, which needs to be addressed prior to building permits being issued.  Prior to wall construction engineering will need to review and provide approval.

Mr. Viccica asks if the house plan has been submitted to the Conservation Commission, and Mr. St. Pierre indicates it has not, as the proposal has not advanced that far yet.  The petitioner is attemptint to secure and create a lot prior to foundation permitting.  All boards must sign off before a building permit can be issued.  Mr. St. Pierre provides additional details of the process.

Mr. Keilty explains that the Conservation Commission previously approved a maximum of three dwellings on the lot, each with a separate order of conditions.  This sits in place and has not been appealed.  Mr. St. Pierre adds that the parties are attempting to find a way to reasonably use the land with an outcome that is satisfactory for both the owner and the City.

Chair Duffy asks about the barn referenced by public commenters.  Mr. Keilty confirms the barn was proposed last night at the Conservation Commission meeting, but that it would be located on Lot A on the other side of St. Anne’s park.

Mr. Viccica asks why the petitioner has not shown the entire parcel and subdivision.  Mr. Keilty explains they are attempting to create Lot C tonight, and are showing the construction being proposed and its relation to the wetlands.  Mr. Keilty maintains the proposal that encompasses the barn is not germane to the creation of Lot C, which is solely what is before the Board this evening, and what will hopefully resolve several outstanding issues

Mr. Viccica asks if a proposal for Lot A will need to come back before the Board, and Mr. Keilty indicates it will not.  He next asks how many houses will ultimately be on Lot A, and Mr. Keilty confirms it would just be one with a barn.

Mr. Copelas asks what would preclude the petitioner from ultimately converting the barn to a residence on Lot A and having two residential structures.  Mr. Keilty states that the applicant would need to create a third lot for the barn if it were to be converted to a dwelling, and it would need its own frontage which is not possible.  Any such proposal would need to come before the Board.

Mr. Copelas asks about the size of Lot A compared to the 18,800 square foot Lot C.  Mr. Keilty indicates it is five acres.

Chair Duffy discusses the variance approval criteria.

Ms. Ordaz asks Mr. St. Pierre if the creation of Lot C would have any impact on the ongoing discussions about Cleveland Street and whether or not it qualifies as a public way.  Mr. St. Pierre states he is not an attorney, but that his understanding is that paper streets still exist unless City Council votes to extinguish them. 

Mr. Viccica states his concern is that there is still a large lot with many encumbrances including wetlands, that could easily hold a single family residence and not come before the Board at all.  By creating Lot C and requesting variances, Mr. Viccica suggests the petitioner is essentially creating a subdivision.  Mr. Viccica contends a hardship has not been shown as to why a house cannot be built in the middle of the property without coming before the Board, aside from the previously mentioned appeals and negotiations.

Mr. Copelas refers to a document from the City Solicitor addressed to the Board on July 18, 2018, which provides guidance for reviewing variance requests and lists statutory prerequisites.  He notes that conditions affecting structures seem to be speaking to wetlands, which would allow the Board to approve a variance based on the specific and unique aspects of the parcel.

Keilty explains in more detail why the petitioner is before the Board and the earlier appeal.  The petitioner seeks to create Lot C tonight, as it does not exist without relief being granted, in order to resolve the outstanding issues before various boards.

Chair Duffy asks if the petitioner would need to come before the Planning Board again if the variance is approved tonight, and Mr. Keilty indicates they would not.  Ms. Ordaz asks if Lot C would be allowed to be sold individually of Lot A if approved, and Mr. Keilty confirms it would.  Chair Duffy asks how this would not be a subdivision.  Mr. St. Pierre explains it is a form of subdivision.  Mr. St. Pierre further explains that with respect to Lot A, the petitioner can build anywhere he wants as long as the setback requirements for the RC district are met.  As a substantial part of Lot A is wetlands and not feasible for development, the only thing the petitioner can do is have a single home on the five acres, and attempt to get a second home constructed on another lot.

Mr. Viccica suggests the problem here the obfuscation of Lot A, because it has always been part and parcel of this discussion from the time the earlier variance was granted for three houses on the site.  Mr. Viccica states it would have been helpful if the applicant showed everyone what the full development of the land would be to clarify that there is no other attempt to do anything other than the two houses.  The piecemeal approach and months of discussion gives everyone pause, according to Mr. Viccica.  He suggests a condition that there only be one house constructed on Lot A, and Mr. Keilty indicates that would be agreeable.  Mr. Copelas asks if a special condition on the adjoining lot could be part of this decision.  Mr. Keilty informs that he has seen conditions which apply to the remaining land, which is what such a condition would be in this instance, and that he has never seen such conditions appealed.
 

Chair Duffy asks if the reason why this is not a subdivision is because the applicant is appealing and contending that more than one lot exists here already.  Mr. Keilty states that is not the reason, but that the applicant does contend there is more than one lot.  Chair Duffy asks how the Board can create a lot without it being a subdivision.  Mr. St. Pierre explains the Board could grant a variance, and the petitioner could move forward with an ANR.  Mr. Viccica states he would be more comfortable with the aforementioned special condition.

Motion and Vote: Mr. Copelas motions to approve the petition of CASTLE HILL REALTY GROUP, LLC for variances from provisions of Section 4.1.1 Table of Dimensional Requirements for minimum lot area, minimum lot area per dwelling unit, minimum lot frontage, minimum lot width, minimum depth of front yard, minimum width of side yard, and minimum depth of rear yard to construct a single-family dwelling at 0 STORY STREET (Map 23, Lot 12) (RC Zoning District) subject to the following standard conditions:

1. Petitioner shall comply with all city and state statutes, ordinances, codes, and regulations.
2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner.
3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to.
4. Petitioner shall obtain a building permit prior to beginning any construction.
5. A Certificate of Occupancy is to be obtained.
6. A Certificate of Inspection is to be obtained.
7. Petitioner shall obtain street numbering from the City of Salem Assessor’s Office and shall display said number so as to be visible from the street.
8. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board.
9. All construction shall be done per the plans and dimension submitted to and approved by this Board.  Any modification to the plans and dimensions must be approved by the Board of Appeals unless such changes are deemed a minor field change by the Building Commissioner in consultation with the Chair of the Board of Appeals.
    

And the following special condition:

1. The remaining lot, Lot A, will not be further encumbered beyond a single family residence and a barn.

Mr. Viccica seconds the motion.  The vote is four (4) in favor (Mike Duffy (Chair), Paul Viccica, Peter Copelas, and Carly McClain) and none (1) opposed (Rosa Ordaz).  The motion passes.

Documents and Exhibitions   

• Application date-stamped June 24, 2021 and supporting documentation

Chair Duffy introduces the petition.

Attorney John Carr of 7 River Street introduces himself as the person who filed the appeal.  Mr. Carr explains that at the he received a last minute request to continue from the property owners of 23 River Sreet.  Mr. Carr states he has no objection to the request to continue as long as no further work in pursuit of the two-family currently under appeal occurs between now and the next meeting.  Mr. Carr states the appeal has nothing to do with the existing non-conforming lot of 23 River Street, but rather the fact that there is no longer permissible two-family use there.

Mr. Copelas asks what the existing owner adds to the Board’s deliberation about this issue, as the current property owner is not much of a participant.  This is a deliberation regarding a decision made by the Building Inspector and is being contested by some neighbors.

Mr. Carr notes that among the submitted materials there should be a response to the owners containing eleven points on that very issue.  He indicates this is not a situation where the property owner obtained relief from the ZBA, but rather an appeal of Mr. St. Pierre’s May 20, 2021 opinion.  Mr. Carr explains that a building permit was issued, and he is now appealing that decision.

Chair Duffy suggests the person being appealed should be heard alongside the challenger.  Mr. Carr states he has no objection to the continuance, but that there should be a proviso that no work and furtherance of the two family should occur between now and then due to the subject of the appeal.

Mr. Viccica states it is not within the scope of the ZBA.  Mr. Carr requests to continue to the September meeting.

Motion and Vote: Mr. Viccica motions to continue the petition of JOHN H. CARR, JR. to appeal a decision of the Building Inspector per M.G.L ch.40A sections 8 and 15. The petitioner is appealing the Building Inspector’s decision that 23 RIVER STREET is a lawfully existing non-conforming lot containing a lawfully existing non-confirming structure (Map 26, Lot 644) (R2 Zoning District) to the regularly scheduled meeting on September 22, 2021:

Mr. Copelas seconds the motion.  The vote is five (5) in favor (Mike Duffy (Chair), Peter Copelas, Rosa Ordaz, Paul Viccica, and Carly McClain) and none (0) opposed.  The motion passes.

MEETING MINUTES

May 19, 2021

June 16, 2021

Ms. McClain notes an edit on the May 19, 2021 minutes.

Motion and Vote:  Mr. Viccica moves to approve the May 19, 2021 minutes as amended and the June 16, 2021 minutes as printed.  Mr. Viccica seconds the motion.  The vote is five (5) in favor and non (0) opposed.  The motion passes.

Motion and Vote:  Mr. Copelas moves to approve the June 16, 2021 minutes as printed.  Mr. Viccica seconds the motion.  The vote is five (5) in favor and non (0) opposed.  The motion passes.

OLD/NEW BUSINESS

Chair Duffy introduces the extension request.

Attorney Bill Quinn introduces himself on behalf of the applicant.  He explains the original variance request.  Mr. Quinn indicates there is adequate legal parking for 6 units, and that the minimal exterior changes proposed are all consistent with the historic character of the neighborhood.  Mr. Quinn explains that the variance was granted, but that due to the pandemic the applicant could not get bankers to meet or talk about financing and it was difficult to get contractors and obtain prices.  Under the restrictions at the time it was nearly impossible to get the project underway according to Mr. Quinn.  He contends that now that the emergency is over and things are going back to business, the applicant is seeking a six month extension to get the project finances squared away.  The extension would allow the applicant to utilize the variance until January 2, 2022.

Motion and Vote:  Mr. Copelas moves to approve the six (6) month extension of the July 2, 2020 variance issued by the Zoning Board of Appeals to Three Corners Realty LLC and property owner Castine Realty Trust. The dimensional variances allow the applicant to alter and change the existing structure at 46 Washington Square South.  This extension request would extend the permit from July 2, 2021 to January 2, 2022. Mr. Viccica seconds the motion.  The vote is five (5) in favor (Peter Copelas, Mike Duffy (Chair), Paul Viccica, Rosa Ordaz, and Carly McClain) and none (0) opposed.  The motion passes.

Member Update

Mr. McCarthy explains Jimmy Tsitsinos has left, as his term expired at the beginning of July.  Carly McClain, who has served as an alternate very ably, has been appointed by the Mayor and City Council to be a full member of the Board.  Mr. McCarthy explains that her five year term began on July 2, 2021. 

Chair Duffy thanks for Mr. Tsitsinos for his service, and welcome to Ms. McClain as a full member.

ADJOURNMENT

Motion and Vote: Ms. McClain moves to adjourn the meeting.  Ms. Ordaz seconds the motion. The vote is five (5) in favor and none (0) opposed.  The Motion passes.

The meeting ends at 10:02 PM on June 16, 2021.

For actions where the decisions have not been fully written into these minutes, copies of the

Decisions have been posted separately by address or project at:

https://www.salem.com/zoning-board-appeals/pages/zoning-board-appeals-decisions-2021

Respectfully submitted,
Lev McCarthy, Staff Planner