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ELIZABETH M.RENNARD VICTORIA B.CALDWELL
CnYSOLJCrrOR ASSISTANT CITY SOLICITOR
93 WASHINGTON STREET \
93 WASHINGTON STREET'
SALEM,\lA 01970 .. . SALEM,MA 01970
TEL:978.619.5633 CITY OF SALEM TEL:978.619.5634
1'Ax: 978.744.1279 KI�IBERLEY L.DRISCOLL,MAYOR FAX: 978.744.1279
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PMAIL:BRENNARSALEAI.COM ENTAIL:VCALME 1&ALFACCON
LEGAL.DEPARTMENT
93 WASHINGTON STREET
SALEh1,MASSACHUSETT501970
October 24, 2016
Salem Superior Court
Civil Clerk's Office
34 Federal Street
Salem, MA 01970
RE: Nathan Jacobson v. Ben J. Anderson, et al.
C.A. No. 16-1588D
Dear Civil Clerk:
Enclosed please find for filing in the above-referenced case Notice of Appearance for
Elizabeth M. Rennard and Victoria B. Caldwell on behalf of the Salem Planning Board and each
of its Individual Members.
Thank you for your attention to this matter.
Very truly-yours;
r14,
Elizabeth M. Rennard
City Solicitor
EMR/jmr
Enclosure
cc: J es F. Mears, Jr., Esq.
Zanda Chiancola, Salem Planning Board
P- W
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT.
C.A. NO. 16-1588D
NATHANJACOBSON,
Plaintiffs,
V.
BEN J. ANDERSON, MATT VENO, HELEN
SIDES, KIRT RIEDER, CAROLE HAMILTON,
DALE YALE, BILL GRISET, NOAH KORETZ,
and ANTONIO MATARAGAS, BEING THE
MEMBERS OF THE CITY OF SALEM,
MASSACHUSETTS PLANNING BOARD,
Defendants.
NOTICE OF APPEARANCE
We, Elizabeth M. Rennard and Victoria B. Caldwell, enter our appearance in the above
case on behalf of the City of Salem Planning Board and each of its individual members.
Respectfully submitted,
Salem Planning Board
and each of its Individual Members,
By their attorney,
DATED: October 24, 2016 :ft
Elizabeth M. Rennard, BBO #647777
Victoria B. Caldwell, BBO #549848
CITY OF SALEM LEGAL DEPT.
93 Washington Street
Salem, MA 01970
Tel: 978.619.5631
Fax: 978.744.1279
Email: brennard(@salem.com
Email: vcaldwellnn salem.com
pop
CERTIFICATE OF SERVICE
I, Elizabeth M. Rennard, Attorney for the City of Salem Planning Board and each of its
individual members hereby certify that I have this 24h day of October, 2016 forwarded a copy of
the foregoing Notice of Appearance, by mailing same first-class mail, postage prepaid upon
James F. Mears, Jr., Esq., 80 Foster Street, Unit 101, Peabody, MA 01960.
Elizabeth M. Rennard',\
LAW OFFICE OF JAMES F. MEARS, JR.
80 Foster Street, Unit 101, Peabody, MA 01960
Phone: (978) 717-5042 Fax: (888)799-7916
Email: jfinears@gmail.com
October 18, 2016
By Hand
Salem City Clerk o'
City Hall
95 Washington Street rn
Salem, Ma 01970 ?s=
Loin C
Re : Nathan Jacobson v. the Salem Planning Board ?�
Essex Superior Court C;A. No. 1 — / s81? a N
D. N
Dear Madam Clerk: U
v
Enclosed please find:
1) Notice To Salem City Clerk of Plaintiffs Appeal to Essex Superior Court From
September 15, 2016 Form C—Definitive Subdivision Decision of the Salem Planning
Board Concerning 14 Bertuccio Avenue, Salem, Massachusetts (Salem Assessor's Map
24, Lot 105); and
2) Attached copy of the Plaintiffs Complaint Pursuant to M.G.L. Chapter 41, Section 81BB
Appealing the September 15, 2016 Definitive Subdivision Decision of the Salem
Planning Board Concerning 14 Bertuccio Avenue, Salem, Massachusetts (Salem
Assessor's Map 24, Lot 105), bearing the date-stamp and docket number of the Essex
Superior Court.
Would you or someone from your office kindly date-stamp and file same, and also acknowledge
receipt of the foregoing by date-stamping the enclosed copies of this letter and this Notice.
Thank you for your assistance
Very truly yours,
resF,. ears, Jr.m
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
C.A NO. 16
NATHAN JACOBSON, )
Plaintiff )
)
-v- )
n
BEN J. ANDERSON, MATT VENO, HELEN SIDES, ) o
KIRT RIEDER, CAROLE HAMILTON, DALE YALE,
BILL GRISET, NOAH KORETZ, and ) M C'l
ANTONIO MATARAGAS, BEING THE " _
Dr'' CO
MEMBERS OF THE CITY OF SALEM, )
MASSACHUSETTS PLANNING BOARD,
Defendants ) s y
D N
cNj, O. .
NOTICE TO SALEM CITY CLERK OF PLAINTIFF'S APPEAL TO ESSEX SUPERIOR
COURT FROM SEPTEMBER 15, 2016 FORM C—DEFINITIVE SUBDIVISION DECISION
OF THE SALEM PLANNING BOARD CONCERNING 14 BERTUCCIO AVENUE, SALEM,
MASSACHUSETTS (SALEM ASSESSOR'S MAP 24, LOT 105)
1, James F. Mears, Jr., attorney for the Plaintiff in the above-entitled action, hereby give notice to the
City Clerk of the City of Salem, Massachusettsa and to the Salem Planning Boardthat said Plaintiff has
filed a civil Complaint with the Essex Superior Court appealing the September 16, 2016Form C—
Definitive Subdivision Decision of the Salem Planning Board Concerning 14 Bertuccio Avenue, Salem,
Massachusetts (Salem Assessor's Map 24, Lot 105).
Said September 15, 2016 Salem Planning BoardDecision was filed with the office of the Salem City
Clerk on September 29, 2016.
A copy of said Complaintfiled as Essex Superior Court Civil Action No.I&(33W on October 18, 2016
bearing the date-stamp of the Essex Superior Court, is attached hereto.
The Plaintiff,
Nathan Jacobson,
By his Attorney,
J ES F. MEAR , JR., BBO 4544274
80 Foster Street, Unit 101
Peabody, MA 01960
Tel: (978) 717-5042
Email: jfinears@gmail.com
DOCKETNUMBER
CIVIL ACTION COVER SHEET Trial Court of Massachusetts
The Superior Court
PLAINTIFF(S): Nathan Jacobson
COUNTY
ADDRESS: 7 Brewn Road
Essex
svmmPaw".MA 01907
DEFENDANT(S): Ben J.Anderson,Mea Veno,Helen Sides.KIN Rieder,Cards Hamilton,
Dale Yale,Bill Gdset,Noah Kemtz and Antonio Mataregas,Being the Members of is ATTORNEY: James F.Mees,Jr.
City of Salem,Massacnusetta Planning Board r..r
ADDRESS: 80 Foster Street,Unit 101 o
ADDRESS: City of Salem Planning Board 1.1 c
Peabody.MA 01960
120 Washington Street 79T —1
(978)717-5042 `
Salem,MA 01970 N fn CO
BBO: 544274
m'
TYPE OF ACTON AND TRACK DESIGNATION(see reverse side) -
CODE NO. TYPE OF ACTION(specify) TRACK D .
C99 Appeal,G.L.c.41,Sec.81 B8 HAS A JURY OIM BEEN MADE?
F E]YES NO
'if"Other"please describe: Form C-Definitive Subdivlslon Decision
STATEMENT OF DAMAGES PURSUANT TO G.L,
The following is a full,itemized and detailed statement of the facts on which the undersigned plaintiff or plaintiff counsel relies to determine money damages. For
'this forth,disregard double or treble damage claims;indicate single damages only.
TORT CLAIMS
(attach additional sheets as necessary)
A.Documented medical expenses to date: i�1
EE to
1.Total hospital expenses.......................................................................................................................... — cn
2.Total doctor expenses..................... c N/A
....................................
43.Total chiropractic expenses........................................................................................................................................................� $.�
.Total physical therapy expenses...... ) .......................................................................................................................................
5.Total other expenses(describe below)........................... $— j=N/A
............................................................................................................CO ; t
$7fTN/A
Subtotal(Mt $o CJVK--
3.Documented lost wages and compensation to date.............. l7r
Documented property damages to dated................ .....................................................................................................................JV o N/A
J. Reasonably anticipated future medical and hospital expenses................._...........................................................................................� $�
$c N/A
_.Reasonably anticipated lost wages.................. $� JUN—
..................................
UN —
..... ....................................................................................................................................... $ N/A
Other documented items of damages(describe below)......................................................................................................................4......... $
1WA--
3. Briefly describe plaintiffs injury,including the nature and extent of injury:
TOTAL(A-F):$ N/A
CONTRACT CLAIMS
(attach additional sheets as necessary)
rovide a detailed description of daims(s):
TOTAL:$ NIA
Ignature of Attorney/Pro Se Plaintiff:X /
ELATED ACTIONS: Please provide the case umber,case name and countyof an related actions en In Date: 10/18/2018
Y P 'fir to-ttte Superior Court.
CERTIFICATION PURSUANT TO SJC RULE 1:18
ereby certify that I have complied with requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution(SJC
ile 1:18)requiring that I provide my clients with information about court-connected dispute resolution services and discuss with them the
vantages and disadvantages of the various methods spu utio
mature of Attorney of Record: X
Date: 10/18/2018
CIVIL ACTION COVER SHEET INSTRUCTIONS
SELECT CATEGORY THAT BEST DESCRIBES YOUR CASE
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EXAMPLE:
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_E� QX YES n NO
STATEMENT OF DAMAGES PURSUANT TO G.L. c. 212, § 3A
NTY OF THE PLAINTIFF•The plaintiff shall set forth, on the face of the civil action Cover sheet(or attach additional sheets as necessary),a
tatement specifying the facts on which the plaintiff relies to determine money damages.A copy Of such Civil action Cover sheet,including the
tatement as to the damages, shall be served with the Complaint.A clerk magistrate shall not accept for filing a complaint, except as
therwise provided by law, unless it Is accompanied by such a statement signed by the attorney or pro Be party.
UTY OF THE DEFENDANT•If the defendant believes that the statement of damages filed by the plaintiff is inadequate,the defendant may
e with his/her answer a statement specifying the potential damages which may result if the plaintiff prevails.
A CIVIL COVER SHEET MUST BE FILED WITH EACH COMPLAINT.
FAILURE TO COMPLETE THIS COVER SHEET THOROUGHLY AND ACCURATELY
MAY RESULT IN DISMISSAL OF THIS ACTION.
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
OCT I$ P 2 2 I OF THE TRIAL COURT
FILE M C.ANO./6— is'$gl�
CITY CLEFK, SALEM, MASS.
NATHANJACOBSON, ) m
Plaintiff
BEN J. ANDERSON, MATT VENO, HELEN SIDES, ) °' 'p
KIRT RIEDER, CAROLE HAMILTON,
DALE YALE, BILL GRISET, NOAH KORETZ, and ) N c)
ANTONIO MATARAGAS, BEING THE ) o 3
MEMBERS OF THE CITY OF SALEM,
MASSACHUSETTS PLANNING BOARD, )
Defendants )
COMPLAINT PURSUANT TO M.G.L. CHAPTER 41, SECTION 81BB, APPEALING THE
SEPTEMBER 29, 2016 FORM C—DEFINITIVE SUBDIVISION DECISION OF THE SALEM
PLANNING BOARD CONCERNING 14 BERTUCCIO AVENUE, SALEM, MASSACHUSETTS
(SALEM ASSESSOR'S MAP 24, LOT 105)
This is an appeal from a Form C - Definitive Decision (hereinafter"Decision") of the City of
Salem, Massachusetts Planning Board (hereinafter"Salem Planning Board" or"Planning Board"), dated
September 15, 2016, and filed with the Salem, Massachusetts City Clerk on September 29, 2016,
concerning 14 Bertuccio Avenue ("Property" Assessor's Map 24, Lot 105), Salem, Massachusetts, on
the grounds that said Decision was arbitrary, capricious, unreasonable, violated due process, exceeded
the Planning Board's authority, was based on legally and factually untenable grounds, and was wrong as
a matter of law.
A certified copy of said September 15, 2016 Decision is attached hereto as Exhibit A.
PARTIES
I. The Plaintiff, Nathan Jacobson is an individual residing at 7 Brown Road, Swampscott, Essex
County, Massachusetts.
2. The Defendant, Ben J. Anderson, a/k/a Ben Anderson, who resides at 10 Adams Street, Salem,
Massachusetts 01970, is a regular member and the Chair of the Salem Planning Board who voted
"opposed" in the September 15, 2016 Decision of the Salem Planning Board being appealed.
I
i
i
3. The Defendant, Matt Veno (according to the September 15, 2016 Salem Planning Board
Decision), a/k/a Matthew Veno (according to the updated 8/16/2016 official roster of Salem Planning
Board members), who resides at 29 Forest Avenue #3, Salem, Massachusetts 01970, is a regular
member of the Salem Planning Board who voted "opposed" in the September 15, 2016 Decision of the
Salem Planning Board being appealed.
4. The Defendant, Helen Sides, who resides at 35 Broad Street, Salem, Massachusetts 01970, is a
regular member of the Salem Planning Board who voted "opposed" in the September 15, 2016 Decision
of the Salem Planning Board being appealed.
5. The Defendan, Kirt Rieder, who resides at 15 Warren Street, Salem, Massachusetts 01970 is a
regular member of the Salem Planning Board who did not participate in the September 15, 2016 vote
which resulted in the September 15, 2016 Decision of the Salem Planning Board being appealed.
I
6. The Defendant, Carole Hamilton, who resides at 4 WillowAvenue, salem, Massachusetts 01970
is a regular member of the Salem Planning Board who voted "opposed" in the September 15, 2016
Decision of the Salem Planning Board being appealed.
7. The Defendant, Dale Yale, who resides at 7 Mayflower Lane, Salem, Massachusetts 01970 is a
regular member of the salemn Planning Board who voted "opposed" in the September 15, 2016
Decision of the Salem Planning Board being appealed.
8. The Defendan, Bill Griset who resides at 7 Mayflower Lane, Salem, Massachusetts 01970 ias a
regular member of the salem Planning Board who voted "opposed" in the September 15, 2016 Decision
of the Salem Planning Board being appealed.
9. The Defendant, Noah Koretz, who resides at 10 Woodside Street, Salem, Massachusetts 01970,
is a regular member of the Salem Planning Board who voted "opposed" in the September 15, 2016
Decision of the Salem Planning Board being appealed.
10. The Defendant, Antonio Mataragas, who resides at 19 Pickman Road, Salem, Massachusetts
01970, is a regular member of the Salem Planning Board who did not participate in the September 15,
2016 vote which resulted in the September 15, 2016 decision of the Salem Planning Board being
appealed.
11. The Plaintiff, Nathan Jacobson has standing to bring this action as he is contractually entitled to
purchase the Property and stands as an assignee of the owner of record of the Property. A true copy of
the Purchase and Sale Agreement is attached hereto as Exhibit B. The Plaintiff is substantially
aggrieved by the September 15, 2016 Decision of the Salem Planning Board being appealed.
JURISDICTION
12. This Court hasjurisdiction of this matter pursuant to Section 81 BB of Chapter 41 of the
Massachusetts General Laws.
13. This case is timely, as it has been filed within twenty(20) days from September 29, 2016, which
is when the September 15, 2016 Decision of the Salem Planning Board was filed with the Salem City
Clerk.
PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS
14. On March 17 , 2016, the Plaintiff, Nathan Jacobson filed the "Form C" Application for
Approval of Definitive Plan located at 14 Bertuccio Avenue with the Salem Planning Board, which
ultimately resulted in the September 15, 2016 Form C— Definitive Subdivision Decision of the Salem
Planning Board being appealed.
15. In accordance with the City of Salem Rules and Regulations Governing the Subdivision of Land
("the Code") and in conjunction with the Plaintiff's request for approval of a Definitive Subdivision
Plan located at 14 Bertuccio Avenue, four(4) waivers from Section IV, Design Standards, of the Code
were requested.
16. The Plaintiff requested a waiver of Section IV,A, 1,f: Minimum roadway centerline radius
shall be 230', to allow a centerline radius of 126' and 134', respectively. The Plaintiff's engineer
submitted that having a roadway centerline radius which is less than 230' assists in making the roadway
a little longer, which allowed the grading to fit more closely to the existing grade. Having this reduced
centerline radius also has the benefit of slowing traffic, making the roadway safer, as submitted by the
Planning Board's engineer. In order to maintain site distance, the Plaintiff's engineer proposed moving
the trees proposed for the inside of the curve to the back of the sidewalk, which fit the Plaintiff's
proposal. Due to the topography of the land, a curved roadway is required, which both the Plaintiff's
engineer and the Planning Board's engineer opined was the safest and most reasonable layout of the
road.
17. The Plaintiff requested a waiver of Section IV,A, 2, a: Minimum Sidewalk width shall be 5'.
The Plaintiffs proposed sidewalk is 5' wide with cutouts to 4' wide where trees are located. The
Plaintiffs Engineer submitted that the Plaintiffs proposal would allow for ADA compliant trees and
sidewalks. The Traffic Peer Reviewer stated that moving trees to the rear of the property was a good
solution to satisfy the Board's request for trees, while addressing the 125' sight distance concern. The
Plaintiff was amenable to widening the right of way and providing both a 4' wide planting strip and 5'
sidewalk, if the Planning Board's approval required such a modification.
18. The Plaintiff requested a waiver of Section IV,A, 2, a: A street width of thirty-nine (39) feet is
present at the roadway entrance, where the existing street width of forty (40) feet is required. The
Property as it exists, has a property line along the adjacent residential lot which was designed to
accommodate a roadway rounding. When the rounding was created, there was 39' between the
narrowest point on the rounding and the opposite property line. The Plaintiff requested a waiver of P
on a small portion of the roadway. A reduction in V does not impact the safety and maneuverability of
the roadway in that location. The width of the roadway proposed would be almost 41', where the Code
requires 40'. There is no other reasonable point of access to the Property as access through Francis
Road presents grade and topography issues.
i
19. The Plaintiff requested a waiver of Section IV.A.4.a.: Allow a dead end street 950 feet long, as
measured from the Bertuccio Avenue and Francis Road intersection to the end of the cul-de-sac, which
is longer than the 500 foot maximum. The City of Salem Fire Department in their March 28, 2016 to
the Planning Board, has concurred with the Plaintiff's proposal permitting the 950' length, provided the
units contain residential sprinklers, which was acceptable to the Plaintiff.
20. The Plaintiff requested a Section IV. Right-of-Way Improvement Policy: Allow the first 60'
of roadway to not have trees as required. This section of roadway is at an intersection. Therefore, the
absence of trees will avoid sight distance problems. The Traffic Peer Reviewer stated that moving trees
to the rear of the property was a good solution to satisfy the Board's request for trees, while addressing
the 125' sight distance concern. The Plaintiff proposed planting additional trees so that the total number
of street trees in the subdivision would remain the same as required when planted at 30' on center.
21. . On or about March 21, 2016 the City of Salem Building Commissioner concurred with the
Plaintiff's proposal for subdivision of the Property.
22. On or about March 29, 2016, the City of Salem Police Department concurred with the Plaintiffs
proposal for subdivision of the Property.
23. The City of Salem Board of Health provided fifteen (15) conditions for approval of the
Plaintiffs proposal, all of which were acceptable and achievable by the Plaintiff.
24. The Planning Board expressed concern regarding soil testing and the presence of arsenic. The
Plaintiff had. four(4) soils tests executed. No reportable arsenic was found at the site. The Peer Review
Engineered concurred.
25. The Planning Board expressed concern about the stability of existing cliff ledge at the Property
during proposed blasting. The Plaintiff presented five (5) experts in the form of two blasters and three
engineers, who spoke of the stability of the cliff ledge during the proposed blasting. The experts
unrebutted opinions were found by the Planning Board to either be uncompelling or not credible.
ARGUMENT
26. The Plaintiff reaffirms, reaalleges and incorporates by reference the allegations contained in
paragraphs I through 25.
27. The Plaintiff and its team of licensed engineers, blasters, geologists and architects have proven
that they are willing and able to construct a safe, habitable and beneficial addition to the existing
neighborhood, that is well within the Subdivision Control Law.
28. The Plaintiffs proposal has been approved by the City of Salem Board of Health and is well
within the Subdivision Control Law.
29. The Plaintiff's proposal is ADA compliant, as will be any public amenities therein.
30. The Right of Way waiver at the entrance of the roadway is minimal at 1', affecting only a
planting strip or sidewalk and not the roadway itself. The Plaintiff is amenable to accommodating the
Planning Board's concern regarding a wider planting strip and sidewalk. The Peer Review Traffic
Assessor raised no issue with the Right of Way. The Fire Department felt that the curve at the
entranceway was acceptable.
31. The Dead-End Road length waiver is necessary as it is the only reasonable access to the
Property. Placing the road elsewhere, thereby eliminating the waiver, would require much more
extensive blasting, resulting in an unnecessary disruption to the community. Again, the Fire Department
took no issue with the dead-end road length.
32. The Sight Distance Radius Waiver is also necessary and agreed with by the Peer Review Traffic
Assessment, as the curves in the road mitigate the grade of the road, controlling speed and increasing
safety.
33. The Plaintiff's proposed subdivision meets all other City codes, as well as all other City, State
and Federal regulations. The Property does not sit on nor abut any conservation land, protected
wetlands or Heritage sites. The Property does not contain any protected wildlife, endangered species or
protected habitat. Additionally, the Property has never been included in any City plans for"open
space". The Property does not contain any public land.
34. Adhering to the letter of the law does not serve the Property owner, who should be allowed use
of the property so long as it can be demonstrated that development can be performed safely, which the
Plaintiff has demonstrated.
35. Allowing the Plaintiffs proposal to proceed will provide additional catch basins to address
concerns regarding existing flooding and insufficient drainage. These catch basins would be completely
separate from the drainage requirements of the proposed subdivision.
36. Allowing an extension of the existing dead-end on Bertuccio Avenue and a cul-de-sac will allow
a safer, tum around for the existing problem of traffic approaching the existing dead-end, mistakenly
believing there is access to Bertram Field for football games. The extension with the cul-de-sac would
eliminate the necessity of those cars having to do a "K"tum or a"3 point turn" in order to tum around.
37. The Plaintiff contends that the creation of a community on the Property will, by default, be a
benefit to the community because the Property in its currenty condition, serves no benefit to anyone; if
anything, it is a detriment. The Property as currently photodocumented, is littered with liquor bottles,
cigarette butts, garbage, syringes, dirty mattresses and sex devices. Logic would seem to dictate that the
entire area would be safer for the community's current and future children, if the property consisted of a
well-lit street, populated by concerned, aware homeowners who care about their community.
38. The Property as it currently exists is technically not accessible by the public. Development of
the Property would provide neighbors with access to the Property to enjoy the view, both safely and
legally.
39. The Plaintiff proposed construction of a community path on the Property to the abutting school
grounds or an existing park..Again, the current neighborhood children, as well the children of new
homeowners of the proposed homes would then have a safe means of access to either of those sites.
40. The Plaintiffs proposal would address the existing problem of snow mitigation, which is a
current problem for the neighbors. The proposed subdivision would include an area off the cul-de-sac
for snow stockpiling, which would slowly be caught in the drainage systems, thus helping to mitigate
the existing issue.
41. The Planning Board's response to the Plaintiffs waiver requests is inconsistent with other
similiarly situated subdivisions in the City of Salem.
42. For the foregoing reasons alone, the Decision of the Salem Planning Board in denying the Form
C endorsement is unfair and without justification and in excess of the Planning Board's authority.
WHEREFORE, the Plaintiff prays that this Court grantjudgment as follows:
(a) Enter a Judgment in his favor annulling in full the September 15, 2016 Decision of the
Salem Planning Board;
(b) Award the Plaintiff costs and reasonable attorney's fees in connection with his
prosecution of this Appeal; and
(c) Grant such other relief as this Court deems equitable and just.
The Plaintiff,
Nathan Jacobson,
By his Attorney,
J MES . MEAR .JR., BBO 4544274
80 Foster Street, Unit 101
Peabody, MA 01960
Tel: (978) 717-5042
Email: jfinears@gmail.com
CITY OF SALEM
PLANNING BOARD
291b SEp ?g P 2 41
Foam C—Definitive Subdivision DecisionFILE
CITY GLER><�S"At£M:MASS.
14 Bertuccio Avenue (Map 24,Lot 105)
September 15, 2016
Nathan Jacobson
C/o Benjamin Osgood
13 Branch Street, Suite 111
Methuen, MA 01844
RE: Decision of the 14 Bertuccio Avenue Definitive Subdivision—Form C
On April 7, 2016, the Salem Planning Board opened a public hearing for a proposal submitted by
Nathan Jacobson (hereafter referred to as "applicant") to allow the construction of a roadway and
associated utilities to serve seven (7) residential lots, and a Stormwater Management Permit in
accordance Sec. 37 of the Salem Code of Ordinances to allow for activity that results in a land
disturbance greater than one acre of land within the City of Salem. In the course of review, the plans
evolved such that the subdivision was reduced to six (6) residential lots. The public hearing was
continued on April 7, 2016;April 21, 2016; May 5, 2016; May 19, 2016;June 2, 2016;June 16, 2016;
July 7, 2016;July 21, 2016;September 1, 2016.
At the September 1, 2016 meeting, the applicant requested a continuation and an extension to allow
the Board to take final action after the 135 day time period.
At the regularly scheduled Planning Board meeting on September 15, 2016, the Planning Board
closed the public hearing and voted on the petition at the request of the petitioner.
The rules and regulations governing the Subdivision of Land in Salem, Massachusetts were enacted
for the purpose of protecting the safety, convenience and welfare of the inhabitants of the city and
were put into effect to regulate the layout and construction of ways in subdivisions providing access
to the several lots therein, but which have not become public ways, and ensuring sanitary conditions
in subdivisions and in proper cases parks and open areas.
The Salem Planning Board, after careful consideration of the evidence presented at the public
hearing, and after thorough review of the petitions, including the application narrative and plans,
and the Petitioner's presentation and public testimony,makes the following findings:
1. The definitive subdivision plans do not conform to Salem's Subdivision Regulations as
waivers of the subdivision plans were requested.
2. The Salem Planning Board did not receive sufficient information to ensure safe construction
of all ways and infrastructure.
14 Benuccio Avenue Forth C Subdivision
September 15,2016-2
3. While the applicant provided information on the industry standards and general procedures
of blasting, the Planning Board found that the applicant did not provide specific information
requested on the unique geological features of the site. Subsoil investigations were not
performed to verify the underlying soil stratums (Environmental and Community Impact
Statement dated March, 2016). The Board requested additional site specific environmental
and geological information and a geotechnical peer review. The Board found that subsoil
investigations of the unique geological features of the site were necessary to determine
whether the proposed blasting of the ledge could be done without the detriment to,public
safety and welfare.
The petitioner also requested the following waivers:
i. A waiver request from Section W.A.l.f. to allow the centerline radius of 126 feet and
134 feet respectively,which is less than the 230 feet required.
ii. A waiver request from Section rV.A.4.a to allow a dead end street 950 feet long, as
measured from the Bertuccio Avenue and Francis Road intersection to the end of
the cul-de-sac,which is longer than the 500 foot maximum.
iii. A waiver request from Section W. Right-of-Way Improvements Policy to allow:
a. A plan without street trees at the entrance into the subdivision for the fust
60' feet, where 3'h in. caliper trees are required 30 ft. on center.
iv. A waiver request from Section IV.A.2.a to allow:
a. A sidewalk width of four (4) feet wide rather than the required five (5) foot
width where there are proposed cutouts for tree locations.
b. A street width of thirty-nine (39) feet at the entrance, where the existing
street width of forty (40) feet is required.
Chapter 41, Section 81R provides that the Planning Board may in any particular case, where such
action is in the public interest and not inconsistent with the intent and purpose of the subdivision
control law,waive strict compliance with its Hiles and regulations. The Board found that.the petition
did not demonstrate that the approval of the requested waivers serve a better public interest than the
Subdivision Control requirements. Specifically, the petitioner requested a street that is narrower than
required, a dead-end road almost twice the maximum length, the elimination of street trees at the
entrance into the subdivision and a sidewalk width that does not comply with ADA standards. While
the petition proposed to provide benches and a seating area in the subdivision, the Board finds that
this public benefit is not directly related to the impacts of the waivers requested.
The Planning Board voted none (0) to approve and seven (7) (Ben Anderson (Chair), Matt Veno,
Bill Griset, Noah Korea, Helen Sides, Dale Yale, Carole Hamilton) opposed, to approve the request
for an endorsement of a Form C Subdivision Plan and Stormwater Management Special Permit.
The Form C Definitive Subdivision and Stormwater Management Special Permit are denied.
14 Bertuccio Avenue Form C Subdivision
September 15,2016-3
This endorsement shall not take effect until a copy of the decision bearing certification of the City
Clerk that twenty (20) days have elapsed and no appeal has been filed or that is such appeal has been
file, and it has been dismissed or denied, is recording in the Essex South Registry of Deeds and is
indexed under the name of the owner of record or is recorded on the owner's Certificate of Title.
The fee for recording or registering shall be paid by the owner or applicant.
I hereby certify that a copy of this decision and plans are on file with the City Clerk and a copy is on
file with the Planning Board.
Sincerely,
Ben J. Anderson, Chair
Salem Planning Board
A RUE COPY T ST
Y
CLERK
SALEM MASS.
This lday of ... .. I.
(iewltir,'IDl3 r
CJmr14?sit:9 "Asta+4T
I. PARTIES Anne L Sdro 7nuMW of II BeWurdo AFane Noodnee T)ruA a/dR dMed Nmwnbrr 23,
I",; recorded at the Fasex Stwl}t A.lsbdet.Reglttry of Dteds in Book 116.14, Page 217,hodnafter called the
SELLER.ogre"to SELL and
NarhanJorxrbseM or htr normae,of 7 Ph?wls Boaig bloa;gimsco%drarsackmAdrs
hereinafter called the BUYER.or,PURCHASM agrees to BUY upon the terms hereinafter set forth,the fol)o wing
described premises:
2. Dl'SCRIP'1'ION The land described as raw•land located al 0 BertoWO Avcnur,Salem,Massachusetts and more fully described
in Essex Congty.Registry of Deeds Book 18152;Pege 147.
.,. .. ,
3. TITLE DEED Said premien are to be conveyed by a good and sufficient QUrfCL1IM decd running to the BUYER, or to the
nominee designated by the BUYER by written notice to the SELi.FR at least seven days before the deed is to be
delivered as.herein provided, and said deed shall convey a good and clear record and marketable tide thereto,free
from encumbrances,except
{a) Provisdbns of.rusting build(rig and zonigg macs
ur.... . .
(c) Such taxes for thedhat ceat fool rear a+are era due and pe3rebk on ihrdone of the delivery of such Decd;
(d) Any.liras for municipal beitesrocnts assessed after the date of this agreement,
(e) Any easchtnt,astriction or agleemcrit of record presently in force and applicable which du rxit interfere with
.(D
Bre reasonable use of the premises.
4. PLANS ,ll'said deed refers to a plan necessary to be recorded thnew•ith,the SELLER shall deliver such plan with the deed in
form adcquate for recording or registration.
5. REG15TFRE1)71'11J: In addition to the foregoing,if the title to said premises is registered,said deed shall be in form sufficient to on itie ..
the BUYER to a Certificate of 7-ale of said prcmises,and the SELLER shall dcliva with said deed all instruments,if
any,necessary to enable the BUYER to obtain Certificate of Title.
6. PURCHASE PRICE The agreed purchase prim for said premises is Three 1/rn&rd 7howsard dad 06100(1130U,OtJ0..00)Dollars, of
which
have been paid a9 a dap sit wi a c1 tion of the Purchase and Sales Agmurnt
am to be paid at the o delivery of the kcal in cask bank,or cornified etx.lms or dosing
utu
Ci °Y aney's clientsfiordd account
cmm
t or bust chxk(s).
4 s,3 Naito' TOTAI,
.J
7. TIME FOR Such deed is to be delivered on or before April ),2016 at 12:00 o'clock P.M.at the Essex South Registry of Deeds.
PERFORMANCE or.fourteen days alter BUYER bas obtained aB permits and approvals necessary for a sabd"lon of the
DELIVERY OF DEED property acceptable to the BIIYER BUYER may have one eateaulon of the time for perfarasnse for a period
of ninety(90)days.
8. POSSESSION and FLIT possession of said property is to be delivered m the time of the delivery of the deed said premises to be then(a)
CONDITION of in the same condition as they now aro and (b) in compliance with said building and inning laws, and (c) in
PREMISES compliance with the provisions of any instrument referred to in clause 4 hereof. The BUYER may elect to rcvinv
propertywithin 48 hours prior to transfer with reasonable notice to SFLLER
9. EXTENSION TO If the SELLER shell be trouble to give title or to make convcymccq or to deliver possession of the premises,ail as
PERFECT TITLE OR herein stipulated,or if at the lime of the delivery of the deed the premises du nut wnform with the provisions hereof,
MAKE PRF.I.IISES the SELLER shall use reasonable cffwu to remove any def"in title,or to deliver possa�ion as provided herein or
CONFORM to make the said premises conform to the provisions hereof, as the case may shall
and theemipen the lime for
performance hereof shall be extended for a periud of thirty(30)days or such leaser time that BUYER can obtain to
exitat"of any mortgage commitment without additional cents to.BIIYYIL
ILL FAII_L'RL'tQ If at the expiration of the extended time, the SELLER shall have failed so to remove any defects in title, deliver
PERFECT TFfLF OR possession,or mskc the premises conform as the casc may be. all as herein agreed,or il'at any time during the period
MAKE PREMISES Of this agrersnrnt or any extension thereof, the holder of a morrgagc on said premise shat) refuse to permit the
CONFORM, etc. insurance proceeds, if any, to be used for such purposes, then, at the BUYER'S option, any paymenu made under
this agrcenwut shall be forthwith refunded and all other obligations of all panics hercio'shall ccase and this
agrcxmrnt shall be void without rewursc to the parties bacto. C��
11. 'BUYER'S ELECTION The BUYER shall have the election,at either the original or any extended time for pedormenot,to accept such We
TO ACCEPTTI.TLE as the SELLER can deliver to the said premises in their then, condition and to pay therefore the purchase price
without deduction,in which case Ote SELLER shall convey such title,except that in the event of such conveyance in
actord with the provisions of this clause, if the said premises shall haw been damaged by fire or casualty insured
ageihst, the.the SELLER shall unless the SELLER has previously restored theyrrusues to their former co ban,
then at Buyer's option;
(a) pay Over or assign to the BUYER,on delivery of the deed, all arnounts recovered or recoverable on account
Of such WUFIISAe,less any amounts reasonably expended by*e SELLER.for any paniaT restonrioo,or
(b) if a holder of a.mortgage on said premises shall not permit the insurance proceeds w a part thereof to be used
to restore the said preti s to their forma condition at to be so paid over or assignnt give to the BUYER a
creditagainst the pord1w price,on delivery of the deer.,equal to.said amounts so recovered or recovrnble
. bl the Uoldu of card rrartgage.less etry.amoonis,c*yca!kd by the SELLERfnr,aay pwiirestorytio1. .
12. ACCEPTANCE OF The acceptance of a deed by the BUYER.or,his nootdnee xs the c ane may be,shat),be a rd)jtetformmtie in dischargeDEED and release of"try agrctanml and obligation herein coutaincd of expressed,Mcepl such as aro,by the terms hereof
to be performed after the delivery of said dad.
13. USE OF PURCIIe1_SE To enable the SELLER to make conveyance as herein provided,the SELLER may,ext the time of delivery of the deed,
MONEY TO CLEAR use the purchase money or any portion thereof to clear the title of any or all encumbrances or interests,provided that
TITLE, all instruments so procured are recorded as soon thereafter as reasonably possible in accordance with customary
conveyancing practice.
14. INSURA19CF, Until the delivery of the deed,the SELLER shall maintain.insurance on said.prcmises as follows:
7)pc of Innoorwe Amourt of Coverage
(a) Fire and Extended Coverage eS
(b)
15. AD)L'S'IMENTS Water and sewer use charges,mal taxes for the current year, shall be apportioned shell be adjusted,as of the day of
performance of this agreement and the amount thereof shall be added to w deducted from as the rase may be,the
Purchase price payable by the BUYER at the time of delivery of the deed. Uncollected rents for the curmt rental
paind shell be apportioned if and when collected by either party.
16. ADIUMMENT'OF If the amount of said taxes is not(mown at the time of the dcliv ery of the deed,they shall be apportioned on the bass
UNASSESSED AND of the'M(cs assessed for the.pteoaling year,with a raTporlionmenl as soon as the new tai nde and valuation can he
ABATED TAXES ascertained; oml if the taxes which are to be apportioned shall thereafter be reduced byabatement, the amount of
such abatement, less tho reasonable cost of obtaining same, shall be apportioned between the parks,provided Nji
neither parry shall be obligated to instionc or prosecute proceedings for an abatement unless herein oNersvise agreed.
17. BROKER(S)FEE, A Broker's fee for professional services is due Gunn the SELLER to Armstrong Field.Real Estate. Said fee
shall.not be paid until the full purchase price is paid and the deed recorded.
1 a. BROKFR(S) The Broker(s)named herein,Armstrong Field Real Estate warrant that the Broker is duly licensed as such
WARRANTY by the Commonwealth of Massachusetts.
19. DEPOSrr All deposits made hereunder shall be held in csauw by Arnunong Field Real,Fstalc as agent for the SELLER,
subject to the terms of this agtmncnt, and shoo be duly accounted for at the time for performance of this
agreement In the event of any disagreement between the parties the said agent may retain said deposits pending
instructions in writing mutually given by the SELLER and the BUYER.
20. BUYER'S DEFAULT: tribe BUYER shall fail to fulfill the BUYER'S agreements herstitr,all deposits made hereunder by the BUYER shall
DAMAGES be retained by the SELLER as liquidated damages
.. - . . ' being difficult to
ascertain actual dartiages, the panics hereto agree that the deposit shall be.liquidated damages and this shall be&Ihr'r
.. satchgat and equitable remedy.
21.FINANCING rNTEN'nONAI.LY DELETED.
21. NOTICE If BUYFR is .smking Veterans Administration loan baefits or a U.S. Go•tvmncnt Foetcral Housing Administration
insured lam uppropriate language,as applicable,must be included in the Purchase and Sale Agreancm.
22. LIABILITY OF If the SELLER or BUYER uecutes Nis agmenuut in a rcprescntative or fiduciary capacity.only N<principal or theTRUSTEES. estate represented "I be bound and neither the SELLER or BUYER. so exccuting, nor my shareholder or
SMARFHOLDER.S. beneficiary of any trust sball be personally liable for may obligetinn,expr m. or implied,hereunder.
BENEFICIARY,etc N
27. CONSTRUC110N Of This instrument is to be conorurd as a Massachusetts contract, is to take r9'rrt as a scaled instrument,sets forth the
AGREEMENT entire Contract betwttn the parties, is binding upon and ensues to the benefit of the parties hereto and their
respective Milk devisees, accattms, a nuni`;loon sucOCSSMand assign; and may be canceled. modifkd or
amended only by a written tndrament ccoruted by both the SELLER and the BUYER. if two or more persons are
name&herein as BUYER their obligkiom becrunda shall be joint and several. Thecaptions mud mergitty notes aro
used only as matter of convenience and are not to be mnsiilereda pari of this agreement or to be ttsed in i1ctemrining
the intent of the parties to ii'.Riis is.a.legally binding contract If not understood,ink competent advice.
24. LEAD PAINT LAW MI'f,N110NALLY DELETED
ACKNOWLEDGE
MENI S
23. SNOKI 'D1:1 C1'ORS INTCNIIONALLYDE•l.EMD.
26. BUYER'S HOMf3 KIBNIIONALLY DElliIL'D
fNSPEMION
ACKNOWLEDGE
MEW
27. WARRANTIES AND The Bt1YER acknowledges that he las not relied upon any MarnanUa or representations not incorporated in the
REPRESENTATION Agreement eseept for the following additional vvarrantics and represontallons,if any,made by either the Sri-LER or
ACKNOWLEDGE- the Broker.
MEW 1JONE
(If none,$me"epee":if:. lived,indicate whoni the warranty or r .'t .. .... )
. aitY by ty eprrsentation Coot made
28. ADD7110NN. See Rider A attached hereto and made a part btrwE
PROVISIONS
I have received a copy of the Purchase end gale Agreemeut. This is a legally binding contract If not
understood,seek competent advkti
The BUYER(s) acknowledges rtcelpt of the notice required by regulation 2.41 of the code or Massatbusctts
Regula"sectional. (15)regarding the relattomblp of the BROKER(s)with BUYFNs)and SELLER(s)of
�.t1i_"Pr3P
r
Ter Da Seller '.ry,/' rrl. '
Bate
NATIIANJACOBSEN Anne I. Salvo. Trustee of 14 Bertuccio Avenue
Nominee Trust
Seller C.h rt ,E . . . U pnp Date
5eh Trust" of 14 Beriueeio Avenue
Nomlttet Trust
RIDER. "A" OF PURCHASE ANDSALEAGREEMENT
t:hrr r-�tn4 �yn�ir
SELLER: Anhe I. Salvo sn , Truitecs of 14 Bertucclo.Avenue
Nominee Trost
BUYER: Nathan Jacobsen
PRb'MISES: 0 Bcrtuccio Aveuuc,Salem,114A. 01970
DATED: October 19,20.15
29. BROKER: Buyer and Sellers, their agents and employees, warrant that they have not dealt
with a broker or agent,Other than the broker named in the Agreem."i'voched hereo, in connection
with this transaction,and each party agrees to indenmify and hold harm
less each ocher from and
against any and all damages, claims, losses and liabilities arising out of or in connection with any
claims' made by any broker or agent claiming a right to a commission or fee in connection with the sale
contemplated by this Agreement resulting from the breaching party's violation of such warranty. This
indemnification shall include,without implied limitation, the non-breaching party's reasonable
attorney's fees and expenses. This shall survive the closing.
30. LEGAL COUNSEL: The parties hereby affirm and acknowledge that they have been offered
the opportunity to seek legal counsel prior to the execution of the Agreement,and that they have either
done so or hereby waive the privilege.
31. NOTIC • Any and all notices required pursuant to the Purchase and Sale Agreement and/or
Rider(s)thereto shall be forwarded postage prepaid by: (1)certified mail,return receipt requested; or
(2) in-hand delivery:
FOR BUYER : FOR SELLER:
James F. Mears,Jr. Anne.l. Salvo and-3oeteae-&Se r)f nm Trustees
80 Foster Street, Unit 101 14 Bert uccio Avenue
Peabody,MA 01960 Salem,MA 01970
Phone: (978) 717-5042
Fax: (888) 799-7916
Email: 'finears!k )mail.cum.
32. ACCESS: Buyer and his representatives shall have the right to enter the Premises during
normal business hours to perform physical and environmental tests and inspections necessary and
incidental to Buyers contemplated use of the Premises. Buyer does hereby indemnify and hold Seller
harmless from any and all claims,suits, loss or damages which may arise because of such entry except
insofar as such claims-arise from Seller's negligence or willful misconduct. The provisions of the
immediately preceding sentence shall survive,the expiration or other termination of this Agreement.
J
33. DUE DMILENCE DOCUMENTS: Seller represents that it hes provided to the Buyer the
following documents, to the extent saiddocuments exist(l)notices of.any violations of law; (vi)any
reports on environmental conditions;and(iii) any permits or reports from the City of Salem.
34. TITLE: Without lirrritalion,the pmmues.shall.not be considered to be in compliance with the
provisions of this Agreement with respect to title unless:
(i) All all means of access to the Premises shall be wholly within.the lot lines of the
premises and shall not encroach upon or under any property not within such.lot lines.
(ii) Said Premises abut a public way;duly lmd out or accepted as such b� the town in
which said premises are located
35. REBA: Any matter or practice arising under or relating to this Agreement.which is the subject
of a title standard or a practice standard of the Real Estate Dar Association of Massachusetts at the time
for delivery of the decd shall be governed by said title standard or practice standard to the extent
applicable.
315. TME.INSURANCE: Without limitation of any other provisions of this Agreement, said
premises shall not be considered to be in compliance with the provisions of this Agreement with
respect to title unless title to said premises is insurable,for the benefit of the BUYER,in a fee owner's
Policy of title insurance, at normal premium rates, in the American Land 'title Association form
currently in use,subject only to those�rinted exceptions to title normally included in the "jacket"to
such form or policy,and those matters referred to in paragraph 4 of this Agreement.
37. SELLER DEL MERIES:
At the Closing, Seller shall deliver to Buyer the following duly executed(and
-notarized)documents or instruments:
(a) Deed to the Premises in accordancewith the provisions of Section 4 of this
Agreement
(b) An affidavit in the form customarily required by Buyer's title insurer for
the purposes of deleting from the owner's and lenders tide policies the standard
exceptions for parties in possession and mechanics'liens.
(c) An affidavit establishing that Seller is not a foreign person as defined in I.R.S. Code
Section 1445 (and the regulations promulgated thereunder) in the form
recommended by the Internal Revenue Service for the purpose of establishing
that the withholding requirements of said Section 1445 do not apply to this
transaction.
(d) Arty customary forms required to comply with Internal Revenue Service reporting
requirements,provided that the same shall not include any indemnities or warranties
i
(e) All.instruments evidencing Sellci's due organization, legal existence and
authority to enter into and be bound by the dosing docamrntt and convey title such.
thatBuyer has become the;record owner of title to the Premises.
(f) Any otter customary closing.documents reasonably required by Buyer's
mortgagc.lender or its.comrel,provided that.such documents shall not include
any warranties orindcrnniti'es or obligations surviving the Closing by Seller.
3& SELLER'S MORTGAGEE: Within two(2)weeps of the date of execution of the
Purchase and Sale Agreement.by the Seller, Seller shall obtain a letter from the Seller's
mortgagee, tete content of whlc6 shall,contain a reptcscntaLon that the.:.., Seller's .
mortgagee does not intend on foreclosing on.the subject.morigage.,
39. CONFLICT: In the event that any provisions of this.Rider A conflict with.the attached Purchase
and Sale Agreement, the provisions of this Rider A shall control.
Buyer Dai e ,. Seller WVIA "'"
�t)Jtb
Nathan Jae . Anne L SA]vo,TrusittoM Btrlocdo.Avenue Nominee Trml
. . Seer .c. Dale
.{e1 1:fr aifdni,Trustee of 14 Bertucclo Avenue Nomiate Truer
• Gk rrlT]vW��oH-W j
� ru J� S f vv UJi I;�ii.•J -lam` '