WALMART-LOWES 440, 460, 462, 488 HIGHLAND AVE - PLANNING (15) Walmarthowe's Appeal E
� s
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS SUPERIOR COURT
CIVIL ACTION NO: 2011-222A
ROBERT STILIAN, JAMES MAHONEY, )
DAVID ANGELLI, PAUL PRICE AND )
STEPHEN UPTON,AS THEY ARE MEMBERS )
OF THE CITY OF LYNN PLANNING BOARD, )
THE CITY OF LYNN PLANNING BOARD AND )
THE CITY OF LYNN )
Plaintiff )
V. )
U )
CHARLEPULEO, RANDY CLARICE, )
MARK G ORGE, NADINE HANSCOM, )
JOHN M TAKIS, TIM READY, )
TIMOTHY KAVANAXGH AND HELEN SIDES )
CHRISTINE SULLIVAN )
AS THEY ARE THE PLANNING BOARD OF )
THE CITY OF SALEM, AND NOT INDIVIDUALLY)
THE CITY OF SALEM )
AND KENNEDY DEVELOPMENT GROUP, INC. )
Defendants )
SECOND AMENDED COMPLAINT AND JURY DEMAND
1. Robert Stilian is a member of the City of Lynn Planning Board with a
business address, Lynn City Hall, 3 City Hall Square, Lynn, MA 01901. �JPIL
2. James Mahoney is a member of the City of Lynn Planning Board with a
business address, Lynn City Hall, 3 City Hall Square, Lynn, MA 01901. N Q /L
3. David Angelli is a member of the City of Lynn Planning Board with a
business address, Lynn City Hall, 3 City Hall Square, Lynn, MA 01901. M PIC
4. Paul Price is a member of the City of Lynn Planning Board with a business
address, Lynn City Hall, 3 City Hall Square, Lynn, MA 01901. WIC
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5. Steven Upton is a member of the City of Lynn Planning Board with a
business address, Lynn City Hall, 3 City Hall Square, Lynn, MA 01901. pP�-
6. The City of Lynn is a municipal corporation duly organized under the laws
of the Commonwealth of Massachusetts y-t5
7. The Lynn Planning Board is a municipal agency duly created under the
laws of the Commonwealth of Massachusetts. yes
Kennedy Development Group, Inc. is a Massachusetts Corporation duly
organized under the laws of the Commonwealth of Massachusetts with a principal place
of business located at 500 Broadway, Everett, MA 02149. y _S
9. The Kennedy Development Group, Inc. is a developer intending to
cons t a large commercial development at 440, 460, 462 and 488 Highland Avenue,
Salem, Massachusetts (hereinafter referred to as "the proposed commercial
development').
10. Defendants Charles Puleo, Randy Clarke, Mark George, Nadine Hanscom,
Timothy Kavanakfgh, John Moustakis, Tim Ready, Helen Sides and Christine Sullivan are
members of the City of Salem Planning Board. yRs
11. The residential addresses of the members of the Salem Planning Board are
as follows: w
Chuck Puleo, Chair, 5 Freeman Road, Salem, MA 01970
John Moustakis, Vice Chair, 23 Dearborn Street, Salem, MA 01970
Randy Clarice, .19 Bentley Street, Salem, MA 01970
Nadine Hanscom, 10 Bay View Circle, Salem, MA 01970
Mark George, 26 Settlers Way, Salem, MA 01970
Tim Kavanaugh, 14 May Street, Salem, MA 01970
Tim Reddy, 22 Sable Road, Salem, MA 01970
Christine Sullivan, 111 Federal Street, Salem, MA 01970
Helen Sides, 35 Broad Street, Salem, MA 01970
12, The City of Salem is a municipal corporation with a business address of 93
Washington Street, Salem, Massachusetts. yjs
Upon information and belief, in and around 2008, the City of Salem entered
into negotiations with the developer to encourage the proposed commercial development.
0 As of 2008, the proposed commercial development was not zoned in a
manner which would allow the construction of a Lowes/Super Wahnart at that site.
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15. At the request of the Mayor, the City of Salem initiated a zoning change
that was designed specifically to allow the proposed commercial development project as
a matter of right.
16. The City of Salem subsequently adopted such a zoning change that
facilitated the proposed commercial development project as a matter of right.
17. Upon information and belief, the City of Salem did not provide the
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statutorily required notice to abutters and parties in interest as defined Y Massachusetts
General Laws Chapter 40A prior to adopting said zoning change. Dtvz ,
18. Upon information and belief, the Mayor of the City of Salem entered into
negot�ns with the developer to arrange for a land swap to facilitate the proposed
commercial development project.
19. As part of these secret negotiations, the developer agreed to construct a
water tower for the use of the residents of the City of Salem at significant cost.
7 20 Upon information and belief, the water tower is intended to be used to
promote or facilitate the construction of hundreds of newly constructed homes near the
site by a private developer.
21. Upon information and belief, the City of Salem though its elected and
appointed officials wished to promote the construction of this large subdivision by
demanding a concession that the developer of the proposed coimnercial development
project construct such a water tank.
9 Upon information and belief, the water tank will substantially reduce the
cost of constructing the proposed residential homes and developing the area near the site
of the proposed cornmercial development project.
� 23 The City of Salem and the developer and/or third party have entered into
land swap agreement in order to facilitate the proposed commercial development project.
This proposed land swap was agreed upon without compliance with
Massachusetts General Laws Chapter 30B.
7 25. In order the ensure that the proposed commercial development project is
completed, the City of Salem violated the provisions of the public bidding laws in
relation to the transfer of an interest in public property.
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26 The land which will be exchanged abuts Belleaire Avenue and the Apple
Hill Lade Subdivision which remains under the jurisdiction of the Lynn Planning Board.
27. Upon information and belief, the land which will be swapped and/or
transferred in part of a charitable trust.
7 28 Upon information and belief, the land that will be swapped and/or
transferred to accormnodate the.proposed commercial development project has been set
aside for natural, recreational and enviromnental uses for the public in general and
resident of Belleaire Avenue and the Apple Hill Subdivision.
'7 0. Upon information and belief a Complaint has been filed with the Attorney
General's Office alleging that the land swap and/or transfer would violate the provisions
of the charitable trust.
30. The City of Salem, by and through its appointed and elected members, have
violated the terms of the charitable trust by allowing said land swap and/or transfer and
approving the proposed commercial development project,Dp-w3
31. As Mayor of the City of Salem, the Mayor is the appointing authority for
the members of the Salem Planning Board. y,,
2 Prior to the submission of applications to the City of Salem Planning
Board, e Mayor and other municipal officials publically spoke in favor of the proposed
development project.
33. The proposed development project is located on Route 107 (Highland
Avenue) and is in close proximity to the City of Lynn. y ss
34. The only public ingress/egress to the proposed project development is
proposed to be Route 107, a residential street which is shared by Lynn and Salem and
Magnolia. The plan proposes no other public ingress or egress. �, 2�_ 00�
7 Bellcaire Avenue as shown on the maps and plans of the City of Lynn
imine lately abuts the proposed commercial development project and the City of Lynn
has a property interest therein. NPK-
Bellaire Avenue is a public way within the City of Lynn. P(L
37. Belleaire Avenue is not fully constructed and still consists of a "paper"
street with one buildable lot, N P IL
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38. The paper portion of Bellaire Avenue extends into Salem prior to
returning to intersect with Fays Ave in Lynn. P P IL
39. Due to the current dead end length of Bellaire Avenue this paper section of
Bellaire Avenue is necessary to conform to City of Lynn Planning Board Rules and
Regulations Section VIIA. 4. - Dead End Street which limits the length of a dead end
street to one thousand feet. N PV-
40.
K40. Failure to complete the roadway would require this roadway to be further
extended beyond the thousand foot length required in the Rules and Regulations
necessitating a waiver from the Planning Board. N Q V
41. The City of Lynn Planning Board had previously approved a subdivision
filed by the Bellaire Avenue Realty trust to allow the construction of residential homes on
a newly created Apple Hill Lane. NP-
42. The City of Lynn Planning Board continues to retain jurisdiction over the
Apple Hill Lane subdivision as the project has not yet been completed. PPL
43. The Apple Hills Subdivision is a sixteen lot residential subdivision of
single family homes. PIL
44. Seven of the lots have homes constructed or under construction within this
subdivision which is still under the City of Lynn Planning board jurisdictions and
supervision. pP�L_
45. The Planning Board has a performance guarantee in the amount of
$227,325 for the proper and timely completion of this subdivision.
46. The proposed commercial development project abuts this subdivision and
its construction as proposed will impact the ability of the developer to sell these lots and
complete this project in a timely fashion due to the disruptive impacts of this commercial
development directly abutting these residential lots including privacy, noise and light not
normally found within a single family home residential subdivision. N P
714 ) The balloon test performed was not viewed by the Lynn Planning Board or
the Ap``p--((e Hills Developer nor did either have the ability to participate in the design or
location of the proposed sound/screening wall. P Pr--
48. The proposed hours of the truck deliveries and their associated noise will
violate the City of Lynn's noise ordinance which restricts similar noise generating
activities in Lynn. P�
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D49,
Route 107 is a Massachusetts State Highway which connects the City of
D
Salem and the City of Lynn.
At or near the City line separating the City of Salem and the City of Lynn,
Route 7, changes from a four lane roadway (two in each direction) to a two lane
roadway (with one lane of travel in each direction). ISS
51. In and around 2010, the developer filed an application with the Salem
Planning Board under Section 7.3, Planned Unit Development and Section 9.5, Site Plan
Review, of the City of Salem Zoning Ordinance. yes
52. The proposed project included a new Lowe's Home Improvement retai}
store, a new expanded Walmart store, expanded Meineke Store, improvements to Camp
Lion, and a new municipal water tank. �jxs
53. Charles Puleo is the Chairman of the City of Salem Planning Board, y Rs
54. Chairman Puleo owns commercial property located at/or near 376 Highland
Avenue, Salem, Massachusetts. y zs
55. Chairman Puleo served as Chairman of the Salem Planning Board during
numerous public hearings held relative to the developer's application. 5 cs
56. As Chairman, Mr. Puleo controlled the agenda, selected which members of
the public could speak at the hearing and established procedures limiting the amount of
speakers and time allotted to such speakers during the numerous public hearings. yes
57. Upon information and belief, Chairman Puleo had a financial interest in the
allowance of the proposed development project as the project would likely result in an
increase to patrons of business/commercial uses including a retail food establishment and
a credit union own, managed, leased and/or operated by Chairman Puleo. 1
58. The Mayor of the City of Salem incorrectly permitted Chairman Puleo to
deliberate and vote on the subject petitions given his obvious financial interest.
59. Chainnan Puleo's business uses, including s credit union will be the closest
banking institution to the proposed commercial development project. N Pk
60. Chairman Puleo's restaurant or the restaurant he leases will be the closest
food establishment which serves breakfast. D°,
61, Chairman Puleo's restaurant or the restaurant he leases will be the closest
drive thru restaurant/dining establishment to the proposed development project. P��
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62. The proposed commercial development project will substantially increase
the number of patrons to businesses owned, managed and/or leased by Chairman Puleo. PPV-
63. Upon information and belief, the Mayor of the City of Salem permitted
Chairman Puleo to deliberate and vote on the matter based upon her public support of the
project.
64. Public hearings were held on March 18, April 1, April 15, May 6, May 20,
June 3, June 17, July 15, September 16, September 20, October 21, November 18,
December 2, December 16, 2011 and January 6 and 13, 2011. �_s
65. On June 17, 2010, the City of Salem Planning Board opened a public
hearing under section 8.1, Wetlands and Flood Overlay District of the City of Salem
Zone Ordinance. eS
At the present time, numerous residents of the City of Lynn experience
flooding and drainage runoff which emanates from the site of the proposed development
project, specifically the proposed site of the new Lowe's Home Improvement retail store.
67. The proposed commercial development as described in the plans and maps
does not comply with the City of Salem Master Plan and good zoning practice as is
required by Section 7.3.1 of the City of Salem Zone Ordinance. D-".!,
68. The proposed commercial development is not compatible with the surround
area, including, but not limited to conservation land located in the City of Lynn which
uninediately abuts the proposed project site. l7etiy
69. The proposed commercial project does not contain a minimum of the lesser
of sixty thousand (60,000) square feet or five (5) times the minimum lot size of the
zoning district it is in as required by Section 7.3.2 of the City of Salem Zone Ordinance.
70. During the public hearings, the Developer failed to offer evidence as to the
means that would be employed to protect the abutting property and the health, welfare
and privacy enjoyed thereon as is required by Section 7.3.3 (2) of the City of Salem Zone
Ordinance, ctm
71. The proposed commercial project will significantly injure the health, safety,
welfare and privacy of current and future abutting property owners, including but not
limited to property owners of Bellaire Avenue which immediately abuts the property.
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5 Purported balloon tests conducted by the developer were flawed from an
engineering perspective and did not adequately predict the site line and visual impacts of
the proposed connnercial development.
3 The purported balloon tests were not adequately publicized to allow the
Plaintiff and the residents of the City of Lynn to monitor the site line and visual impacts
of the proposed commercial development.
� 74 The proposed commercial project would cause significant negative visual
impacts to residential property in the City of Lynn.
7 65) A proposed 15 foot high sound/screening wall to be constructed behind the
proposed Lowe's Home Improvement retail store would be insufficient to protect the
health, safety, welfare and privacy of abutting properties and to residents of the City of
Lynn.
77 The proposed 15 foot high sound/screening wall is insufficient to alleviate
increased noise and the negative visual impact of the proposed commercial project.
70. The proposed 15 foot sound/screening wall is insufficient to alleviate or
eliminate the noise and visual issues expected to be experienced by abutting Lynn
residential neighborhood development.
,I n The proposed commercial project will threaten the health, safety, welfare
and privacy of the abutting Lynn residential property owners.
79. The proposed planned unit development is not in harmony with the purpose
and intent of the City of Salem Zone Ordinance and the Master Plan of the City of Salem. pt
7 @0 The proposed commercial project is not sufficiently advantageous to tender
it appropriate to depart from the normal requirements of the Business Park District.
?, @. The proposed commercial project will have a significant negative impact as
it will result in loss of open space, nature trails and will adversely impact conservation
land and wetlands.
'7 82 The proposed commercial project will result in a significant increase in
traffic, particularly upon Route 107 in Lynn which threatens the health, safety, welfare
and privacy of the City of Lynn and its residents.
83. The proposed corm-nercial project will generate no tax revenue to the City
of Lynn and will likely result in a reduction in property tax revenue from residential
properties near the proposed site. P?IL.
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P. The proposed commercial project will require significant removal of trees
and shrubbery near the City of Lynn line.
�. The removal of trees and significant blasting will threaten and injure the
health, safety, welfare and privacy of the City of Lynn and its residents.
86. The drainage issues which currently emanates from the site will be
exacerbated by the proposed commercial project. a,,,
87. In contradiction to the mandates of the Salem Zoning Ordinance and the
City of Salem Master Plan, on January 13, 2011, the Defendant Salem Planning Board
unanimously found that the proposed project met the provisions of Section 7.3, Planned
Unit Development, of the City of Salem Zone Ordinance and approved Site Plan Review,
Planned Unit Development Special Permit and Wetland and Flood Hazard District
Special Pennit. h
88. As a condition to the Special Permit, the Salem Planning Board required
the developer to provide approximately $100,000 for studies and peer reviews for traffic
mitigation. u,,,
-7 (9. The proposed commercial project will have a far greater negative impact
upon the City of Lynn.
90. Nevertheless, the Salem Planning Board imposed no conditions and
required no financial expenditures for traffic mitigation in the City of Lynn.
91 The Salem Planning Board did not seek or receive input from the City of
Lynn Planning Board relative to traffic mitigations in the City of Lynn.
9). The Salem Planning Board imposed conditions relating to traffic design at
intersections lying solely in the City of Lynn without seeking or obtaining input from the
City of Lynn Planning Board and the City of Lynn Department of Public Works.
93. The conditions imposed by the Salem Planning Board with respect to the
redesign of intersections lying whole in the City of Lynn will not promote the health,
safety and welfare of the residents and visitors of the City of Lynn and will have adverse
financial and other implications upon the City of Lynn as they relate to traffic, drainage
and public safety.
94. Despite the fact that residents of the City of Lynn are presently far more
impacted by drainage issues emanating from the site, the Salem Planning Board required
the developer as a condition of the Special Permit to contribute more money to the City
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r
of Salem to alleviate drainage and storm water issues that the amount required to be
contributed to the City of Lynn. �".
95. The decision of the Salem Planning Board was filed with the City Clerk's
Office on January 18, 2011. �Js
96. In January, 2011, the City of Salem Zoning Board of Appeals denied a
petition to locate a methadone clinic on Route 107 in Salem. y Ls
97 The Notice of Decision filed by the Salem Zoning board of Appeals states
that e proposed methadone clinic would generate unneeded traffic and would
negatively effect the neighborhood as a result of such increased traffic. Dzyl
98. Upon information and belief, the methadone clinic would generate far less
traffic than the proposed commercial development. V P�L
The methadone clinic was proposed to be sited at a location where Route
107 ha four lanes of travel, two in each direction.
100. The proposed commercial development is located near the site where Route
107 narrows to two lanes of travel at the Lynn/Salem border. 9ls
101, Katerina Panagiotakis and Calvin Anderson are two Lynn residents who
appeared at many of the hearings before the City of Salem Planning Board to speak in
opposition the proposed commercial development project. (See Affidavits attached as
Exhibit B and C, respectfully). ya s
9 102 During their appearances at one of these hearings in or around fall of 2010,
Salem anning Board member Tim Ready had occasion to speak with Calvin Anderson
and Katerina Panagiotakis in a hallway following the meeting. See Affidavits attached as
Exhibits B and C, respectfully).
DO3.i At the conclusion of the hearing, Mr. Ready motioned with his finger that
he woke to speak with Katerina Panagiotakis and Calvin Anderson privately in the
hallway. (See Affidavits attached as Exhibit B and C, respectfully).
104. Katerina Panagiotakis and Calvin Anderson subsequently had a
conver ion outside of the earshot of those appearing and participating in the hearing,
including the developer and its counsel. (See Affidavits attached as Exhibit B and C,
respectfully).
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105. Mr. Ready requested that Katerina Panagiotakis and Calvin Anderson
cha opposition to the project and instead support the project, because [we] would
not win." (See Affidavits attached as Exhibit B and C, respectfully).
10 , Mr. Ready stated to Katerina Panagiotakis and Calvin Anderson that "You
are very good in what you say and are very persistent, but will not win on this. It is better
if you ask them what they [the developer] or this project can do for you instead." (See
Affidavits attached as Exhibit B and C, respectfully).
C107 Mr. Ready indicated that the outcome was a foregone conclusion. (See
Affida i attached as Exhibit B and C, respectfully).
(108. Mr. Ready stated that the project would proceed ahead "one way or
anothe ." See Affidavits attached as Exhibit B and C, respectfully).
109 This conversation occurred prior to the conclusion of all public hearings
relat to the project. (See Affidavits attached as Exhibit B and C, respectfully).
110. Katerina Panagiotakis and Calvin Anderson left that conversation with Mr.
Ready certain that Mr. Ready and the Salem Planning Board had already determined that
the project was going to be approved, (See Affidavits attached as Exhibit B and C,
respectfully). Q
1, 11 , The proposed commercial development will result in increased traffic
congestion upon public ways in the City of Lynn.
112. The increased traffic congestion will require the City of Lynn to expend
additional monies on repaving, road repairs and traffic signal improvements. P?V-
113. The increased traffic congestion will make it more difficult for emergency
responders, including the Lynn Police, the Lynn Fire Department and ambulances to
transverse the City generally and the neighborhoods immediately abutting the proposed
commercial development project site. p plL
114. The increased traffic congestion will jeopardize the health, safety and
general welfare of the citizens of Lynn as a result in delayed response tunes. N PIL
115. The increased traffic congestion will require the City of Lynn to expend
additional monies and/or to shift personnel to the areas neighboring the commercial
development project site as increased traffic will invariably result in additional motor
vehicle accidents.
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116. The City of Lynn will see no increased tax revenue to offset the costs that it
will incur as a result of the proposed commercial development. 0?4
117. The City of Lynn and the City of Lynn Planning Board are persons
aggrieved by the decision of the Salem Planning Board. &x-
118. A certified copy of said decision is dated January 18, 2011 is attached
hereto as "Exhibit A." y s
119. The City of Lynn and the Lynn Planning Board have satisfied all conditions
precedent as required by Mass.R.Civ.Pro. 9(c) in bringing this litigation pursuant to
M.G.L. c. 40A, Sec. 17. N Q�_
120. The decision of the Salem Planning Board is based upon the legally
untenable interpretation of the Salem Zone Ordinance and the Salem Master Plan. 4V�j
121. Said decision of the Salem Planning Board is based upon legally untenable
grounds, is whimsical, capricious or arbitrary, has insubstantial basis in fact and is an
abuse of discretion by said Board. D,,e w�5
122. Said decision of the Salem planning Board fails to give a requisite
statement of reasons or make findings of facts to support the denial of granting of Special
Pen-nits.
123. Defendant Salem Planning Board wrongfully applied the provisions of the
Massachusetts General Laws as amended and the City of Salem Zone Ordinance.and City
of Salem Master Plan. Din
124. Said decision of the Salem Planning Board exceeds the authority of the
Salem Planning Board, ,
COUNT 1 - DECISION OF SALEM PLANNING BOARD IS ARBITRARY AND
CAPRICIOUS (M.G.L. c. 40A, s. 17).
125. The plaintiffs repeat and reallege the allegations contained in paragraphs
One through One Hundred Twenty-four as if fully stated herein.
126. The decision of the Salem Planning Board is arbitrary, capricious and not
supported by the evidence proffered during public hearings and exceeds the authority of
the Planning Board.
COUNT 2 - DECISION OF THE SALEM PLANNING BOARD LACKS
SPECIFIC FINDINGS
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127. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred Twenty-six as if fully stated herein.
128. The decision of the Salem Planning board lacks specific findings as is
required by the City of Salem Zone Ordinance, the City of Salem Master Plan and
Massachusetts General Laws Chapter 40A.
COUNT 3 -VIOLATION OF M.G.L. 40A, s. 5
129. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred Twenty-eight as if fully stated herein.
130. In or around 2008, the City of Salem voted to amend its Zone Ordinance
with specific application to the site of the proposed commercial project.
131. Upon information and belief, the City of Salem did not comply with the
requirements of M.G.L. c. 40A, s. 5 when adopting said amendments to the Zone
Ordinance.
132. Upon information and belief, the City of Salem did not provide notice to all
persons and boards as is required by M.G.L. c. 40A, s. 5.
133. As a result of the City of Salem's failure to comply with M.G.L. c. 40A, s.
5, the purported Zoning amendments permitting the proposed commercial development
project should be annulled,
COUNT 4 - SPOT ZONING
134. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred Thirty-three as if fully stated herein.
135. The amendments to the City of Salem Zone Ordinance constitute unlawful
spot zoning as the amendment applied solely to parcels relating to the site of the proposed
commercial project.
136. The Defendant City of Salem failed to provide proper notice of the
amendments to the City of Salem Zone Ordinance as is required by M.G.L. c. 40A, s. 5.
137. The purported amendment to the Salem Zone Ordinance effecting the site
of the proposed commercial project should be found to be null and void as the
amendment constitutes spot zoning.
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COUNT 5 - VIOLATION OF M.G.L. C. 268A
138. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred Thirty-seven as if fully stated herein.
139. Charles Puleo is the Chairman of the City of Salem Planning Board.
140. As Chainnan, Mr. Puleo controlled the agenda and established and
enforced procedures relating to the public hearings.
141. Chainnan Puleo determined the number of individuals who would be
allowed to speak on a given subject and the order thereof,
142. Chairman Puleo determined the amount of time that the Salem Planning
Board would devote to the matter at each public hearing thereon.
143. Chainnan Puleo owns and/or has a financial interest in property which is in
close proximity to the site of the proposed commercial project.
144. It is agreed by the all parties that the proposed commercial development
will result in increased traffic along Route 107,
145. The expected increase in traffic along with the influx of construction
workers, employees and shoppers will likely result in an increase of need and
consumption of food and banking services,
146. It is reasonably foreseeable and likely that Chairman Puleo will experience
an increase in business at his retail food/dairy establishment and banking institutions
located at 370 and 376 Highland Avenue.
147. M.G.L. c. 268A prohibits a municipal employee to participate in any matter
where it is reasonably foreseeable that the employee has a financial interest in the matter.
148. Chainnan Puleo actively participated in the petition of the developer and
controlled and influenced debate.
149. Chairman Puleo should have recused himself from this matter given his
personal financial interest in the granting of the special permit.
150. The Mayor of the City of Salem should not have determined that Chairman
Puleo's financial interest was such that would render him to be impartial in participating
in this matter,
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COUNT 6 - OPEN MEETING LAW VIOLATION
151. The plaintiffs repeat and reallege the allegations contained in paragraphs
One through One Hundred and Fifty as if fully stated herein,
152. Upon information and belief, neither the developer nor the City of Salem
Planning Board provided proper notice to all parties in interest and abutters to the project
as is required by M.G.L. c. 40A.
153. As a result of the failure to comply with statutory notice requirements, the
decision of the Salem Planning Board should be annulled.
154. Statements made by Planning Member Tim ready confirm that he had
determined to vote to approve the subject commercial development project prior to the
conclusion of the public hearings.
155. Mr. Ready stated that opponents to the project should attempt to elicit
concession, financial and otherwise for the City of Lynn.
COUNT 7 - PLANNING BOARD LACKS JURISDICTION TO ISSUE
CONDITIONS WITH RESPECT TO LAND LYING SOLELY IN THE CITY OF
LYNN
156. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred and Fifty-five as if fully stated herein.
157. The decision of the Salem Planning Board requires the developer to
undertake the redesign of certain intersections why lie solely within the City of Lynn.
158. Prior to imposing such conditions, the Salem Planning Board did not
consult with the City of Lynn Planning Board, the City of Lynn Fire Department or the
City of Lynn Department of Public Works.
159. Said traffic conditions have a direct impact upon the residents and visitors
of the City of Lynn.
160. The Salem Planning Board lacks jurisdiction to require certain traffic
alterations over land which does not lie within the City of Salem.
COUNT 8 - VIOLATION OF DUE PROCESS RIGHTS
161. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred and Fifty-six as if fully stated herein.
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162. The City of Salem, through its Mayor and elected and appointed officials
negotiated with the developer for several years prior to the granting of a special permit.
163. The City of Salem, by and through its appointed and elected officials
negotiated a land swap with the developer prior to the filing of petitions to complete the
proposed commercial project.
164. The City of Salem, by and through its elected and appointed officials,
negotiated the construction of a water tower for the benefit of the residents of Salem.
165, The City of Salem, by and through its elected and appointed officials
proposed and adopted amendments to the City of Salem Zone Ordinance solely for the
purpose of allowing the proposed commercial development as a matter of right.
166. The Mayor of the City of Salem is the appointing authority for members of
the City of Salem Planning Board.
167. Upon information and belief, certain members of the Salem Planning Board
are hold-over appointments as their terms have expired.
168. Upon information and belief, these members were not re-appointed prior to
the vote on this matter as a means to ensure that the special permit would be granted.
169. The Mayor of the City of Salem was a vocal proponent of the proposed
commercial project and actively campaigned and negotiated with the developer prior to
the filing of the instant applications for permits.
170. Thousands of individuals signed petitions in opposition to the proposed
commercial project and submitted such opposition to the Salem Planning Board.
171. Hundreds of individuals appeared at public hearings before the Salem
Planning Board in opposition to the proposed commercial project.
172. The great weight of the evidence presented to the Salem Planning Board
demonstrated that the application for pen-nits did not comply with the Salem Zone
Ordinance and the Salem Master Plan.
173. The public hearings and subsequent deliberations were predetermined prior
to the commencement of the hearings themselves.
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174. The hearings were merely a sham in an attempt to comply with the hearing
requirements mandated by the Salem Zone Ordinance and Massachusetts General Laws
Chapter 40A.
175 City of Salem Planning Board member Tim Ready publically revealed that
the project was going to be approved one way or another."
176. Mr. Ready advised opponents of the project from Lynn to support the
project and attempt to gain concessions, financial and otherwise, from the developer.
177. Mr. Ready made these statements prior to the conclusion of the public
hearings.
COUNT 9 - VIOLATION OF CHAPTER 30B
178. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred and Seventy-seven as if fully stated herein.
179. The City of Salem and the developer and/or third party have entered into
land swap agreement in order to facilitate the proposed commercial development project.
180. This proposed land swap was agreed upon without compliance with
Massachusetts General Laws Chapter 30B.
181. In order the ensure that the proposed commercial development project is
completed, the City of Salem violated the provisions of the public bidding laws in
relation to the transfer of an interest in public property,
182. The land which will be exchanged abuts Bellaire Avenue and the Apple
Hill Lane Subdivision which remains under the jurisdiction of the Lynn Planning Board.
COUNT 10 - ILLEGAL CONTRACT ZONING
183. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred and Eighty-two as if fully stated herein.
184. The actions of the City of Salem and the Salem Planning Board amount to
impennissible contracting zoning.
185. The-City of Salem, through its elected and appointed officials promised to re-
zone a property either before the vote to re-zone has been taken or before the required process
has been undertaken and evaded the dictates of G.L. c. 40A.
17 of 19
COUNT 11 - VIOLATION OF CHARITABLE TRUST
186. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred and Eighty-five as if fully stated herein.
187. Upon information and belief, the land which will be swapped and/or
transferred in part of a charitable trust.
188. Upon information and belief, the land that will be swapped and/or
transferred to accommodate the proposed commercial development project has been set
aside for natural, recreational and environmental uses for the public in general and
resident of Belleaire Avenue and the Apple Hill Subdivision.
189. Upon infonnation and belief a Complaint has been filed with the Attorney
General's Office alleging that the land swap and/or transfer would violate the provisions
of the charitable trust.
190. The City of Salem, by and through its appointed and elected members, have
violated the terms of the charitable trust by allowing said land swap and/or transfer and
approving the proposed commercial development project.
Wherefore the Plaintiffs City of Lynn and the City of Lynn Planning Board pray
that this Honorable Court, pursuant to M.G.L. c. 40A, s. 17 and the Court's general
equity power:
1. Enter an order annulling said decision of the City of Salem Planning Board
dated January 18, filed in the office of the City Cleric on January 18, 2011.
2. Enter an Order that the City of Salem Building Department refrain from
issuing any building pen-nits relating to the project.
3. Grant the Plaintiffs their attorney's fees, costs and expenses.
4. Grant such other and further relief as the Court may deem just and proper.
18 of 19
JURY DEMAND
The Defendant City of Lynn and Lynn Planning Board hereby demands a trial by
jury on all triable issues of fact.
The City of Lynn
The City of Lynn Planning Board
By their Attorney
George S. Marlcopoulos, Esquire
Assistant City Solicitor
Lynn City Hall, Room 406
Lynn, MA 01901
BBO# 546189
(718) 596-4000 Ext. 6840
Dated: May 6, 2011
19 of 19
Exhlblt A
6 CITY OF SALEM
c PLANNING BOARD F
MI .1,.N 12 P 7: ^M
Site Plan Review, Planned Unit Developme�Cr 8 ee'ia1 �r ,'•
and Wetland-and Flood Hazard District Special Permit Decision
4409 460, 462, and 488 HIGHLAND AVENUE (Map 3, Lots 1, 2, 3 and 4)
January 18, 2011
Kennedy Development Group, Inc..
C/o Joseph Correnti,Esq.
Serafini, Darling & Correnti
63 Federal Street
Salem, MA 01970
RE: Lowe's Home Improvement retail store, new, expanded Walmart store, expanded Meineke store,
Camp Lion improvements and new municipal water tank
Site Plan Review/Planned Unit Development
On Thursday, March 18, 2010,the Planning Board of the City of Salem opened a Public Hearing under
Section 7.3, Planned Unit Development, and Section 9.5, Site Plan Review, of the City of Salem
Zoning Ordinance, at the request of Kennedy Development Group, Inc., for the properties located at
440, 460, 462, and 488 HIGHLAND AVENUE (Map 3, Lots 1, 2, 3 and 4). The proposed project
includes a new Lowe's Home Improvement retail store, a new, expanded Walmart.store, expanded
Meineke store, improvements to Camp Lion, and a new municipal water tank.
The Public Hearing was continued to April 1, 2010,April 15, 2010, May 6, 2010,May 20, 2010, June
3, 2010, June 17, 2:010, July.151-2010; September 16, 2010, September 30, 2010, October 21, 2010,
November 18, 2010, December 2, 2010, December 16, 2010, January 6, 2011, and January 13, 2011.
On Thursday, June 17, 2010, the Planning Board of the City of Salem opened a Public Hearing under
Section 8.1, Wetlands and Flood Hazard Overlay District (WFHOD), of the City of Salem Zoning
Ordinance, at the request of Kennedy Development Group, Inc., for the property located at 488
HIGHLAND AVENUE (Map 3, Lot 1). The proposed project includes a new Lowe's Home
Improvement retail store. The Public Hearing was continued to July 15, 2010, September 16, 2010,
September 30, 2010, October 21, 2010, November 18,2010, December 2, 2010, December 16,,2010,
January 6, 2011, and January 13, 2011.
The Planning Board;after numerous public hearings and review of submitted materials,hereby makes
the following"Findings of Fact", attached as Exhibit A and hereby incorporated as part of this
decision.
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Tfie PlanningBoard also hereby finds that the proposed project meets the provisions of the City of
Salem Zoning,Ordinaticb, Sec. 1.3 Planned Unit Developrrient, as follows:
1) 7.3.1 Purpose-The proposed Planned Unit Development (PUD),which incorporates retail,
municipal, and outdoor recreational uses,meets the.p.urpose and intent of the Zoning Ordinance and
Master Plauxof the City.of Salem:
2) 7.3.2 Applicability—The proposed development parcel is significantly greater than 60,000 square
feet in area,,.. The widerlying zoning districts of the proposed development parcel are BPD
(Businesa;Park Development) and.13-2 (Highway Business District), each of which are eligible
districts fo P.UD'treatment.
3) 7.3.3 Uses,—The proposed uses, including retail,municipal, and outdoor recreation, are allowed in a
PUD development.
7.3.3.2 Thb.Applicant has subinitte'd detailed engineering and architectural specifications,
including drawings; photographs, and photo-simulations of the means that will be employed to
protect abutting properties in both Salem and Lynn. Specifically:
o Tlse 1lpplioaut conducted a'ballaon tesfwhareby balloons were floated at strategic
locations at the height of the proposed Lowe's building, Photographs taken from
numerous locations':t ground level show sight impacts to be minimal from existing
residential iieighbbrhoods:
o A 15-foot high sound/screening wall will be constructed behind the proposed Lowe's
building;
o The proposed sound/screening wall will serve as a noise and visual buffer between the
Lowe's building Arid loading docks and the abutting Lynn residential development;
o The proposed sound/sere=i-ag wall, along with the existing and proposed landscaping
buffer between Lowe's and the abutting Lynn residential development, will serve to
protect the,health, safety, welfare and privacy of the residential development;
o The elimination of the existing Camp Lion driveway, a revision to the originally
submitted plans, has increased the buffer between the residential neighborhood in Lynn
and the proposed Lowe's building.
o The proposed Walmart loading docks to the rear will be located over 400 feet from the
nearest residential abutter.with significant differences in elevation and a continuing
landscape buffer, which will serve to protect the health, safety,welfare and privacy of
the abutting residents;
o Walmart has agreed to limit truck deliveries to its building to the hours of 6.00 a.m. to
12:00 a.m.,.with no overnight deliveries between 12:00 a.m. (midnight) and 6:00 a.m.
7.3.3.3 —In the Business Park Development district, residential uses and associated
improvements cannot exceed 50% of the land area of the parcel. There are no residential uses.
proposed.
4) 7.3:8 Decision
7.3.8.1 - The proposed planned unit development is in harmony with the purposes and intent of
this Ordinance and the master plan of the City of Salem and it will promote the purpose of this
section by:
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a) Providing far a comprehensive, planned approach to commercial, municipal, and
recreational development of adjacent parcels oa High"L Avenue:..The proposedPUD will
eliminate several existvig curb cuts along Route 107 and coordinate traffic through a newly
created signalized'drive into the site that will be utilized 1iy each oftlie prgppsed uses.
b) In addition to providing ve} -ci tar access for the City of Salem water tower and the Camp
Lion outdoor recreational facility,the proposed PUD will coordinate utilities access to each
of the proposed"uses. '
c) Piovidiing for appropriate economic development on.an existing commercial corridor,
tha`reby generating tax revenue and creating jobs.
7.3.8.2 -The miixture of uses in the planned unit development is determined,to be sufficiently
advantageous to render it appropriate to depart from the normal requirements of the districts..
Specifically, the project incorporates a mixture of commercial, municipal, and recreational uses;
providing substantiae public benefit.
7.3.8.3 - The planned unit developmdnt would not result in a not negative environmental
impact. Specifically,
a) The proposed PUD requites the cutting of existing trees and blasting on site, but also
inalude,g the planting of over 1,000 new trees and shrubs on site.
b) The Applicant predicts that the Drainage Plans, as submitted;revised and reviewed,will
improve the existing pre-development condition of the site and surrounding,neighborhoods:
in regard to drainage. The Applicant's engineering work is complete and thorongli; and
their analysis and predictions are reasonable.
c) The Applicant presented information indicating that the project will have no adverse
impacts to the Spring Pond water supply in Peabody. Their analysis is reasonable and
satisfactorily addresses the concerns about potential coiitamination runoff being directed to
Spring Pond, J
d) The proposed PUD incorporates Low Impact Development (LID) techniques for Wa.lmart.
e) The proposed PUD incorporates energy-saving and greenhouse gas initiatives for the
proposed buildings.
The Planning Board hereby makes the following findings pertaining to the Wetlands and Flood Hazard
District,Special Permit Application:
1. The proposed uses comply in all respects with the Zoning Ordinance and,particularly the PUD
section of the Ordinance.
2, Portions of the site are located within the Wetlands District, as defined in the Zoning
Ordinance.
3. The proposed development does not include the storage of salt, chemicals or petroleum
products, other than those materials packaged, stored and handled for retail sale and stored
within the buildings and stored within the buildings and an above-ground double-walled fuel
tank with interstitial leak detection monitoring, that is attached to and serves as the fuel supply
for the emergency generator serving the Lowe's store.
4. The floor levels of areas to be occupied by workers will be four feet or more above the seasonal
high water table with no basement floor level being constructed in any building.
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5. The project will be servicodby Citysewor, There will be no on lot septic system.
6. The Drainage Plans and design, is submitted,will improve the water storage capacity of the site
and protect against pollution and contamination of such water supply and wetlands.
At a special meetingof the Planningboard h6i on January. 13, 2011, the Planning Board voted by a
vote of nine (9) in favor(Charles,P:uleo,.Johh'Moiistakis, Randy Clarke,Nadine Hanscom,Mark
George, Tim Kavanaugh Tim Readq,:Christiue illivan, Helen Sides); and.none'(0) opposed to
approve the Site Plan itevi'ew;Planned.UnifDevelopman't:Special Permit,.and Wetland and Flood
Hazard Distiibt Special Permit, subject to the follgwing'conditions:
L Confot`umanke with the Plan -
Wo*shall conform to 6plans entitled,,"Planned Unit Development Application: Proposed
Lowe's Homa improvem'ent_Center,cVT I-Mar aud.Meindke Ekpagsions, City of Salem Water
Storage Ta* and Futare Camp.Lion Jmprnvemants FIi and Av . ue Salern,Massachusetts,
.,. ..
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e
p
'
are'
. Keniied$•D$velopment:Gioup; iepred Uy Tetra Teck 12izzo'and Buhler Engineering,
dated February 19, 2010'and Iast revised Odtober 1S; 20.10, and page C-2; Site Plan and page C-5,
f andscapePlan, ast revisedDecemlieX:15,r20�0;.And the plan;enhtled"Proposed Screening Wall,
Salam MA," dated Tanua;y 1'3; 20.11,'showipg additional planting on the south side of the site.
2. Amendments.
Any.am6ndments to the site plan shall be rev iewedby the City Planner and if deemed necessary by
the City Planner,'shall be brought to the Planning Board. Any waiver of conditions contained
within shall require the approval of the Planning Board:
3. Constrdetion Practices
All contraction shall be carried out in accordance with the following conditions:
a. All provisions in the City of Salem's Code of Ordinance, Chapter 22, Noise Control, shall be
strictly adhered to.
b. All reasonable action shall be taken to minimise the negative effebts of construction on abutters.
Advance notice shall be provided to all abutters in writing at least 72 hours prior to commencement
of demolition and construction of the projeot.
c. Drilling'and blasting shall be limited to Monday-Friday between 8:00 AM until 5:00 PM. There
shall be no dirilling, blasting or rock hammering on.Saturdays Sundays, or holidays, Blasting shall
be undertaken in accordance with all local and state regulations.
d. All construction vehicles shall be cleaned prior to leaving the site so that they do not leave dirt
and/or debris on.surrounding roadways as they leave the site.
e. All construction shall be performed in,accordance with the Rules and Regulation of the
Planning Board, and in accordance with any and all rules, regulation and ordinances of the City of
Salem.
f. All construction vehicles left overnight at the site, must be located completely on the site
g. All construction activities shall be in accordance with the "Salem Police Station Contruction
Management Plan".
I All sidewalks,roadways, utilities, landscaping, etc, damaged during construction shall be
replaced or repaired to their pre-construction condition, or better.
i. A Construction and Management Plan is to be submitted to the City Planner for appropriate
distribution to Salem departments and the City of Lynn.
4. Fire Department
a. All work shall comply with the requirements of the Salem Fire Department. The locations of all
fine liydrants shall be approved by the Fire Department prior to the issuance of any building
penriit..
5. Biiiiduig Inspector.
All work shall comply with the requirements of the Salam Building.Inspoetor.
6. Board of Hea1tH.
All work sliall comply with the Board of Health decision and conditions dated October 13, 2016-
a. The individual presenting the plan to the Board of Health must notify the Health Agent of
the n4e,address, and telephone number of the project(site)manager who will be on site
and directly responsible for the construction of the project.
b.. If'a-DEP,tracking number is issued for this site under the Massachusetts Contingency Plan,
no structure skallbe constructed until the Licensed•Site Professional responsible for the site
meets the DEP standards for the proposed use,
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C. A copy of the Licensed Asbestos Inspector's Report must be sent to the Health Agent.
d. A copy of the DemolitionNotice sent to the DEP, Form.B'WPAO6, must be sent to the
Health Agent:
e. The developer shall give the Health Agent a copy of the 21E report.
I
f. The developer shall adhere to a drainage plan as approved by the City Engineer.
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g. The developer shall employ a licensed pesticide applicator to exterminate the area prior to
construction,.demolition, and/or blasting and shall;send a copy of the exterminator's invoice
to the Health Agent.
h. The developer shall maintain the area free .from rodents throughout construction.
i. The developer shall submit to the Health Agent a written plan for dust control and street
sweeping:which will occur during construction.
j. The developer shall submit to the Health Agent a written plan for containment and removal
of debris,vegetative waste, and unacceptable excavation material generated during
demolition and/or construction.
k. The Fire Department must approve the plan regarding access for fire fighting.
1. Noise levels from the resultant establishment(s) generated by operations, including but not
limited to refrigeration and heating, shall not increase the broadband sound level by more
than 10 dB(A) above the ambient levels measured at the property line and as further
interpreted in the MA Department of Environmental Protection noise pollution policy and
310 CMR 7,10 .
m, The developer shall disclose in writing to the Health Agent the brigia of any fill material
needed foi the project.
n. T$e resultant establishment shall dispose of all.waste materials resulting from its operation
inan environmentally sound manner as described to the Boardof Health.
o. The drainage system for this project.mustbe reviewed and apliroved by the Northeast
Mosquito Control and Wetlands Management District.
P. Proposed food establishments must have their plans reviewed by time Health Agent prior to
their bvifd-out.
A. The developer shall notify the"Aealth Agent when the project is complete for final
inspection and confirmation that above-conditions have been met.
7. Utilities
a Utility installation shall be reviewed and approYbdby ihe'City Engineer prior to the issuance of
any Building Permit, The applicant shall have an engineer.certify.the utility plans for review by
the City Engineer,prior to the issuance of any Building Permit.
b. All electrical utilities for the site shall be underground.
8. Department of Public Services
The applicant, his successors or assigns shall comply with all requirements of the Department of
Public Services.
9. Lighting
a. No light shall cast a glare onto adjacent parcels or adjacent rights of way.
b. A final lighting plan shall be submitted to the City Planner for review and approval prior to the
issuance of any building permit.
c. After installation, lighting shall be reviewed and approved by the City Planner,prior to the
issuance of any Certificate of Occupancy.
10. HVAC
If an HVAC unit is located on the roof or site, it shall be visually screened, The method for
screening the unit shall be submitted to the City Planner for review and approval prior to
installation.
11. Noise
HVAC units shall be sufficiently buffered and the applicant shall take steps to further mitigate
noise emanating from the HVAC units(s) if the Board of Health receives any complaints.
12. Landscaping
a. All landscaping shall be done in accordance with the approved set of plans; detailed landscaping
pian for the plan entitled"Proposed Screening Wall" dated January 13, 2011, is to be submitted to
the City Planner for review and approval prior to issuance of any building permit
b, Maintenance of all landscaping shall be the responsibility of the applicant, his successors or
assigns. The applicant, his successors or assigns, shall guarantee all trees and shrubs for a two- (2)
year period.
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c. Ariy.streettrws removed as a.result of construction shall be replaced. The location of the trees
shall lie,p.i Y'e =by the City Planner prior to replanting.
d.'Fins,.1 ompleted tandscaping shall be subject to approval by the City Planner prior to the
issuance of a Certificate of Occupancy.
f3. Maintenance:.
a. Refuse reirioval,recycling, ground maintenance and snow removal shall be the responsibility of
th0 deYelope ;his successors eassigns.
b. WiriteF::snourrn excess of snow storage areas on the site shall be removed off site,
14. lalis
a.. tis-built Plana, stamped by a Registered Professional Engineer,.shall be submitted to the
Depa�,toin#.of"Planning.and Community Development and Department'of Public Seiviees prior to
the issitiarise.of any Cei�tifioate of,Occupaacy.
b, The As=Built plans shall be sub initted;to.the City Engineer in electronic file format suitable for
the City's use and approved by the City
OcciuparicEngineer, prior to the issuance of any Cerfificate of
pq: ,,;
C. A cQiii?leted;tie card;'a blank,copy`(available at the Engineering Department) and a certification
signed and,stktiped by the design engineer, stating.that the work was completed in substantial
complian66-`.th,lthe design drawing must be submitted to the City Engineer:prior'to the issuance of
any.Certificate of Occupancy; as well as, any subsequent requirements by the City Engineer.
15. Violations
Violations of any condition contained herein shall result in.revocation of this permit by the Planning
Board, unless the violation of such condition is waived by a majority vote of the Planning Board.
16.'Special Conditions:
1. ,Traffic,
a. Applicant agrees,to provide up to $75,000 to MassDOT to undertake a study for the data
collection,,analysis and conceptual design of three intersections on Route 107,in Salem for the
purpose.bf.Jdentifying alternatives for traffic mitigation for the intersections at,Swampscott
Road,,Marlborough Road/Trader's Way, and Pep Boys4,larket Basket Plaza Driveways. (See
Exhibit B.) Further, the a licant agrees to provide$17,000 to the City of Salem for traffic
engineering pear review related to this study. Said funds to be provided to MassDOT and the
City of Salem, respectively,prior to issuance of any building permit.
b. Applicant agrees to design and implement an exclusive right-tum lane on the Western
Avenue southbound approach to Fays Avenue in Lynn, subject to the approval of MassDOT. In
.addition, applicant will replace the existing traffic signal equipment and have traffic signal
timing changed to increase the amount of"green time"provided to the Western Avenue
approaches during each signal cycle, subject to the approval of MassDOT. Applicant is to
coordinate with/obtain necessary approvals from MassDOT.
c. It is noted that as a potential alternative to address traffic concerns identified in the City of
Lynn, the applicant is proposing a two-way left turn lane on Western Avenue from Buchanan
Circle to (approximately) the current location of the Camp Lion driveway. This reference is
included herein to acknowledge that this alternative could be a requirement of MassDOT as part
of the NEPA review process. It is not a condition of approval of the Salem Planning Board.
B `the'S.tate nn •
a and roadwa improvements shall be implemented as al roved r
d'. fall tr ffic
Y P P PP Y P
to thessuance of any Certificate of Occupancy.
e. Lowe's and Walmart are required td each join the North Shgra Transportation.3tTaaagement
Association(TMA) for a minimum period of thrce'yeats. Thb'oost for such e- s'.
based on rates in effect at the time of this.approval.Payment far the tliree.yeaY memterslup to
be made prior to the issuance of any Certificate of Occupancy.
2. Stormwater Management ,.
a: : Applicant'to in;;,pect existing stbrmwater,managemeat,system.within.ffi' its o .the' .
pr6p6sed H1.014d'Avenue improvements during'coi struetioh to identify any catch.basin's;
aianlioles,.or stormwater pipes,that do'ngt appear to lie functioning properiq. , atcli lignins,
manholes; ar d stormwater pipes.,found to lie m need of cleaning, zepau orreplacement or'.
tlhat differ from the conditions identified on. eXt"stcng conditibns surYeya e smaller
diameter pipe than shown on the`plans) ark to be Yegorted to tie Salem:Cfy LjfgiiTeer and'.'
KagsDOI°priorto any action Being tak6n, S"aid=catcl basinsy manholes„-pi storm~ aE.ez'pipes
will'be cleaned, repaired, oi:aeplaced subject to.tine approvat of Mass as;:part of**
project improvements: ,Evaluation and cicaWng to specifrcalIy incl ude the c itch basrrirat the.,
outlet tor the wetland located at_the'southeast.property boundary; which is,located
approximately tan feet off Elighiand Avemue:
b, Ftiture developments at the Camp Lion facility must not exceed,the impervious areas shown
on the approved plans in order to'ineet Massachusetts:Stormwater guid;hnes. rtli&fmore,
development of the camp site shall include stormwater treatment measures as stated in the
project Drainage Report, dated November 23,2010.
c.. Applicant is to submit an Operation and Management Plan for the stormwater management
system;,describing the frequency of cleaning_(at_least twice per year.);and maintenance of.
tine system, clearly deAuing the responsible party for maintenance, prior to,the issuance of
any building permit.
I The applicant is to contribute $60,000 prior to issuance of any Ceriifbate.of Occupancy to
the City of Lynn to be used by the City of LymVtowardrdrainaga improvements; specifically
including repair or replacement of a stormwater pipe identified in the Buchanan Circle
neighborhood that is functioning improperly and contributing to flooding conditions in that
neighborhood, as identified in Paragraph 28 of Exhibit B attached hereto.
3. Deliveries to Walmart to be limited to the time period between 6 a.m. and 12 a.m, (midnight)
consistent with current store operations.
4. Details, specifications, and design calculations for the retaining wall at Lowe's, including color, to
be submitted to the City Engineer and City Planner for review and approval prior to start of
construction.
5. Specifications for the sound barrier/screening wall, including color, located to the rear of the
Lowe's store, are to be submitted to City Planner for review and approval prior to start.of
construction.
6, A sidewalk is to be constructed along Highland Avenue from the northeinmost site driveway to
connedt to the access driveway to facilitate a safer wall ing environment for pedestrians. The
design of the sidewalk and.pedestrian ramps to be ADA compliant, It is noted that the new
si alized intersection at the.site driveway will include a edestriali phase to enable pedestrians to
l� Y P .
safelycross. The cros. ..alk will be moved from its'current location,'as recommended by
�t"1'✓
tl
MassDOT, to north of e.access driveway TH6 sidewalk and new location of the crosswalk to be
shown on revis4pians: Revised plans.are to be submitted to the City Planner for review and
approval prior to:iswauce oft'building p,Enit,for Walmart.
7. The applicant will contribute .- 'S 000°to the City of Salem toward the cost of improvements to the
sewer pump-station located ori Highiand Avenue in front of the site prior to the issuance of any
building permit.
S. A bus pull off, shelter and waiting area shall'be inco4mrated irito,the site plan on Highland Avenue
Mr front of the..N-almart;,projeat site:for.southborind buses,•The'pull off or turnout area for the bus,
which is tfiesta o the right-tum-lane ififo the site;shall be Nide enough.so as to allow all traffic
lanes on.'Ifighlarid Av6lse to contili iottsiy flow',once th6 bus,comes'to a stop. The applicant shall
work witii the mlL tA•and mai6bT to-obtain the nedesgaryapprovals, easements, etc, for
construction, Upbn State zpproval(s),a specific site plau•shall.be submitted for review and
approval by the City Planner showing proposed am' dmties,:such as a shelter, catt corral, and trash
receptacle as well as'any changes to the parking field or landscaping of Walmart; if necessary. Bus
pull off and associated'amenities to be constructed prior to the'issuanbe'of any Certificate of
Occupancy, assumin g that all necessary State approvals are in place in a timely fashion, however in
no event will a non4ssuance of approvals lsy the State delay the issuance of any Certificate of
Occupancy by the City.
9. Refuse removal', recycling, ground'maintenance and snow removal shall be the responsibility of the
applicant, his successors or assigns.
10. The applicant, his successors or assigns shall be responsible for the maintenance and snowplowing
of the entrance drive connecting to Highland Avenue.
11. A Clerk of the Works will be required to'oversee the construction work. The Clerk of the Works
shall be provided by the.City, at the expense of the applicant, his successors or assigns.
I hereby certify that a copy of this decision and plans has been filed with the City Clerk and copies are
on file with the Planning Board. The Special Permit shall not take effect until a copy of this decision
bearing the certification of the City Clerk that,twenty(20) days have elapsed and no appeal has been
filed or that if such appeal has been filed, and it has been dismissed or denied, is recorded in the Essex
South Registry of Deeds and is indexed under the name of the owner of record is recorded on the
owner's Certificate of Title. The owner or applicant, his successors or assigns, shall pay the fee for
recording or registering.
Charles M.Puleo, Chair
'S`,. ..4M �. . ., • ' _ it
E=BIT A
TRAFFIC
The following findings include improvements proposed by the Applicant; all of which are
subject to approval by the Massachusetts Department of Transportation(MassDOT),.who
has jurisdiction over these applicable portions of Route 107 (Eholand and Western
Avenues) in both Salem and Lynn.
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1. The existing main site driveway into Walmart will be closed.
2. A new site driveway.providing full access/egress under traffic signal control with
optimized phasings and timings for tlie'entire:project will be provided.
3. The north site driveway into Walmart will be modified to. provide groper curb
radii to current design standards.
4• Additional turning lanes. and pedestrian accommodations at the new main
driveway will.be provided.
5• Improvements to the Highland Avenue southbound merge area into the. City of
Lynn will be provided by realigning the roadway, through the use of pavement
markings, and posted signs,
6. Western Avenue at Fays Avenue in Lynn will be slightly widened and re-striped
on the southbound approach to provide a through lane and an exclusive right-tarn
lane.
7. New traffic signal equipment with optimized phasings and' timings will be
installed at the Western Avenue/Fays Avenue intersection.
8. Western Avenue between Buchanan Circle and the existing Camp Lion driveway
will be re-striped to provide a two-way lett-tum lane for left turns 'to/from the
residential streets.
9. The City of Salem Planning Board retained BETA Group, Inc. (`BETA") as its
peer review consultant on the traffic impacts and improvements associated with
this project as proposed by the Applicant.
10. BETA reviewed, in detail, the "Traffic Impact and Access Study for Submission
with EENF" proposed by the Applicant and prepared by the Applicant's traffic
consultant, Greenman-Pedersen, Inc. ('GPI").
11. BETA prepared a detailed comment letter, dated May 5, 2010, to the Traffic
Study submitted by the Applicant.
Pvhihlf � Pane 1 of F
12. In its convents and'recommendations,BETA recommended, among other things,
that the following actions be undertaken by the Applicantf w
a. Expand the study area along.Route 107 further south into.Lynn and further
north into Salem,
b. Provide additional automatic traffic.. recorder (ATR) counts along
Highland Avenue adjacent to the site.to the.City;
r
C. Evaluate the sight distanceg at the Highland Avenue/Camp Lion driveway;
d. Clarify calculations concerning Minimum . Required Stopping Sight
Distance; .
C. Revise the trip generation for the weekday AM peak hour:
13. In a Technical Memorandum dated September 2, 2010,:GPT submitted a Response
to Comments memorandum tliat addressed each issue and recommendation made
by BETA, including implementation of the substantially-expended study area,
14. The City of Salem Dopartmeaf of Planning and Community Development
coordinated a meeting,with MassDOT and invited both the Applicant and BETA
to attend to discuss the•Applicant's proposed improvements on Route 107, a DOT
jurisdiction roadway("DOT Meeting'.
15. Subsequent to the DOT Meeting, the Applicant; BETA and the Department of
Planning and Community Development reported to the Planning Board, at its
regularly scheduled meeting-on; January 6, 2011, that. an engineering corridor
study along Route 1.07 between Swampscott Road and the Pep Boys traffic signal
was recommended by DOT, to be funded by the Applicant, to help determine
future improvements to Route 1107.
16. The Applicant presented its proposed improvements, as revised, to the Planning
Board on January 6, 2011, including a two=way left-turn lane to be constructed
south, of the Highland Avenue merge area, from the existing Camp Lion
driveway, along Western Avenue to Buchanan Circle in Lynn.
17. Extensive comments have been received by the Planning Board from the public,
including many residents of the abutting Lynn neighborhoods, concerning the
existing conditions along Route 107 between Fays Avenue and the project site.
18, All'conditions, recommendations, revisions and changes to Route 107 proposed
by the Applicant and/or the Planning Board are subject to the approval of DOT
for this state highway.
CvL.iF.b A D-ne 0 ..F 9
19. The. Applicant will submit to ongoing DOT jurisdiction in the state-required
MEPA and MassDOT Section 61 processes for this project.
DRAINAGE
20. The.,Applicant has submitted an extensive Drainage Report entitled "Drainage
Unit Development,". dated November 23, 2010,.
Kepnst for proposed Planned
prepare34by Tetra Tech Rizza,and Bohler Engineering; as well as plans in the
original Planned Unit Development CTUD") Application and subsequent
Wetlands Flood HaE District Special Permit Application.
21. The documents submitted addressed, among other things, the following:
Intermittent stream reconstruction;
Cross-sections of the existing stream;
Pre-development Conditions Watershed Plan;
Post-development Conditions Watershed Plan;
Demolition Plan;.
Grading.and Drainage Plan;
Utility Plau.
22. The City of Salem retained the services of New England Civil Engineering Corp.
("NECE") for Peer Review Services to be provided to the Planning Board on
engineering and drainage matters for the proj Oct.
23. Upon its review of the submitted materials, as well .as meetings with the
Applicant's engineers, NECE submitted extensive comments and
recommendations to the Board and Applicant on two separate occasions,
including, but not limited to the following areas:
a, Soils: Submittal of logs for test pits, borings and probes, for review.
b. Impervious Area. Applicant to submit acreage with itemized calculations.
c. Roof Runoff. Applicant to provide additional information on slope and
break lines of roof to confirm runoff to be collected.
d. TSS Removal. Applicant to revise TSS removal tables to reflect' a
different method of street sweeping(a more conservative removal rate).
e. Water Ouality Structures and Sizing.
f. Hydraulic Capacity of Pipes.
C }
r6_
g. ExistingDrainage. Identify condition of structures in Route 107; expand
study area further into Lynn.
h. Maintenance.
i. Subsurface. Infiltration/tow Impact Development. Applicant'to evaluate
alterhatives.
j, Modifications to the existing drainage ia6f- st Acture•located along the
southeast property Boimdary to reduoe the'likelihood of clogging
k. Existing Sanitary Sewer Pump Station, Coordination with City Engineer
required.
24. Through a series of meetings with NECE and presentation and:submittals to the
Planning Board, the ?applicant has addressed eacli off' the issues raised by the
Board and.its consultant,];ECE.
25. Extensive public comment has been received by the Board daring, the pt blic
hearings concerning the existing drainage and runoff conditions of the site and the
1
abbtting neighborhoods in Lynn:
26. Based on public comments from neighbors and actual observation of the site area,.
the Board finds that some flooding already occurs onto Route 107' and into the
Buchanan Circle neighborhood in Lynn.
27. The Board received extensive comment from various City' off Lynn officials,
including-officials from Lynn-Water & Sewer Commission, confirming .the
flooding that,occurs in the existing pre-development condition.
28, The Applicant,. working with staff from Lynn Water_& Sewer Commission,
identified a stormwater pipe in the Buchanan Circle neighborhood that was
functioning improperly and'contributing to the flooding conditions,
29, The Applicant presented information indicating that the project will have no
adverse impacts to the Spring Pond water supply in Peabody. This was reviewed
by NECE, which found their analysis to be reasonable and addressed the concerns
about potential contaminated runoff being directed to Spring Pond.
30. The Applicant, at the suggestion of the Board and NECE, incorporated "low
impact development' techniques in the form of above and below ground
stormwater infiltration areas for the Walmart store.
31. The applicant predicts that the Drainage Plans; as submitted, revised and
reviewed, will improve the existing, pre-development condition of the site and
:41 .:i.
s#'QuridLg'.toighborhoods: 1NECE finds that the applicant's engineering work is
complete and tliorou'gh and tfieir analysis and predictions are reasonable,
EXHIBIT, B
Draft Scope of Work
4.
Dita•.Collectiosi,Analy,sis and Conceptual Design of Alternativesc..
Three.Interseetio'ns on Route 107; Salem, Mas9ac1jW9etts
" 4
BACKGROUND
MassDOT and the City of Salem are interested.in operational and'poteritial geometric
improvementsjhat would.mitigate.exis conditions and potential future impacts.from the
new.towa's and 'expansion of VJalmart'in Salam.soutk of the three locations,just north of the
Lynn/gal em City Line.
This document outlines a scope of services to perform a traffic study for three signalized
intersections on Route 107(Highlan3 Avenue) in Salem,NlassachuseCts, as follows:
• Swampscott Road-
o Marlborough Road/Traders Way
• Pep Boys/Market Basket Plaza Driveways
The three intersections,0111 be analyzed for operational issues (delays; traffic signal design,
and other deficiencies) and potential improvements requiring expansion into the existing
right-of-way-or beyond it:Of particular interest are the first two intersections;.which-operate
in tandem as a pair carrying north-soutli'volume between Swampscotf Road and
Marlborough Road in both directions. This tandem causes a shifting of traffic within a
limited roadway segment on Route 107 causing merging and diverging of trafficwith
associated:defays, and operational inefficiencies: In the case of geometric improvements at
this segment of Route 107 to correct for this problem, MassDOT is interested in developing
and reviewing conceptual AutoCAD plans drawn over existing layout plans,
OBJECTIVE
This study will identify traffic operational and geometric improvements to address
operational problems at three Salem signalized intersections, including developing
conceptual plans and identifying right-of-way requirements for the alternatives that include
geometric improvements.
WORK DESCRIPTION
OL W
Task 1 Perform Field Reconnaissance and CollectlGather Data
Detailed data and jvfommation pertaining to'each location will be collected. This will
involve visiting.each site and inveutoiying all relevant geometric, land use, and signal
features. The three locations'serve primarily Rbute 107 commuter trips and the shopping
plaza dtiveways; which may have different.peaking characteristics. For this reason, data
collection will be done for web'kda•y Alva and PM peak hours and for Saturday midday. In
addition;.data may have to-be collected for the intersection of one of the plaza's
driveways with Route 107. Data will include:
• 2-hour manual turning movement counts (MTMCs) during the AM and PM peak
,. periods and.midday'(.10 AMto 2 PM) Saturday
24-h6ur Automatie.Recorder Counts (ATR� (to be requested frpm MassDOT
Highway Divisiari) at nine locations during•tutee weekdays and atypical Saturday
• Bicycle counts
••• Pedestrian counts
• Transit.vehicle counts
• Signal'timing.data(IvlassDOT to provide traffic signal plans to review existing
phases, timing lengths),
R
• Queue lengths
• Cras.li data, including copies of crash reports to develop crash diagrams
• Origin-destination patiem for'Swampscott Road and Marlborough Road traffic by
performinga short license plate or other form of survey
• Geometric data(layout plans, lanes, curb cuts, sidewalks, crosswalks,pedestrian
buttons, transit amenities)
• Land use/zoning.informatiop,..
• Jurisdictional/administrative.system responsibilities
Products of Task 1
Traffic flow diagrams, summaries of count, geometric, signal, and queue information,
origin-destination data and analysis, safety analysis and crash diagrams, as well as
land use and jurisdictional information, for the three intersections
Task 2 Evaluate and Analyze Intersections
Each intersection will be analyzed for capacity and delays analysis in order to determine
the operational level of service at each intersection. Particular attention will be given to
the evaluation of existing pedestrian signal phases,if any, or the need for them. Also, the
origin-destination (north-south)traffic pattern between Swampscott Road and
Marlborough Road will be identified in order to design effective traffic signal plans and
geometric improvements at the two intersections and the Route 107 segment between
them. Analysis of crash diagrams will reveal the type of safety concerns that exist in the
vicinity of the three intersections and the operational or geometric deficiencies that may
be. lacking in in that area, Field observations will yield a full understanding of the
operations of vehicles,bicycles, and pedestrians at each location. In addition to field
observations, right-of-way plans will be reviewed, in case any minor widening or
additional turning lanes are required.
Products of Task 2
Reviews of traffic signal plans and right-of-way plans; summaries of existing
operational level of service for typical weekday AM and PM peak hours and for
midday Saturday, including delays and queues by lane group; assessment of safety
issues; assessment of north-south traffic volume pattern using the Route 107 segment
between Swampscott Road and Marlborough Road
Task 3 Develop Improvement Alternatives and Associated Costs
Based on the evaluation and analyses,potential improvement alternatives will be
developed; Potential improvements would include ratiming, traffic signal design,
geometric improvements; traffic management, channelization, access management,
arterial coordination of the three signalized intersections,,and assessment of traffic
control equipment for potential updates, and better processing of bus, pedestrian, and
bicyole,tiafdc. The cost of each improvement option will be evaluated(excluding right-
of-way`costs.) Conceptual geometric improvements will be drawn on existing layout
plank-using Aufo'CAD. Analysis will be performed with 2016 (No-Build and Build)
volumes;including Wal-Mart and Lowe's generated traffic upon occupancy, In addition
to Wal-Mart and Lowe's trips, the 5-year growth rate will take into account an
appropriate background growth rate.
Product of Task 3
A summary of alternative improvements and associated present and future year
assessment, conceptual AutoCAD designs of potential geometric improvements; and
construction implementation costs, excluding right-of-way purchase, if any.
Task 4 Recommend Improvements
Based on the evaluation and analysis performed in Task 3, short- and long-term,measures
to improve operations at the three intersections will be recommended
Product of Task 4
A summary of recommended operational improvements for the three intersections
Task 5 Advisory Group Input
Study will include seeking advisory group input via presentations at meetings e-mail
exchanges, and telephone forms of interaction. The advisory group will consist of
MassDOT Office of Transportation Planning Page 3 of 4 12/23/10
MassDOT representatives from Office of Transportation Planning, Highway Division, .
District 4, and others; City of Salem officials, and City of Salem consultants.
Product of Task 5
Preparation for meetings, including presentations, and other forms of interaction with
advisory group members
Task 6 Document A11 Findings and Recommendations 4
Staff will document all study tasks in a technical memorandum for MassDOT's review.
Product of Task 6
A technical memorandum documenting Tasks 1 through 5
ESTIMATED SCHEDULE
It is estimated that this project will be completed 14 weeks after the notice to proceed is
received
TRUE COPY ATTEST
�Xlllblt "� 9�
�t/�slT 5
AFFIDAVIT OF KATERINA PANAGIOTAHIS
My name is Katerina Panagiotakis of and I have personal knowledge of the following
facts:
1. I.appeared at many of the hearings before the City of Salem Planning Board to speak
in opposition the proposed commercial development project,
2. During my appearance at one of these hearings in or around fall of, 2010, Salem
Planning Board member Tim Ready had occasion to speak with Calvin Anderson and
me in a hallway following the meeting.
3. At the conclusion of the hearing,Mr. Ready motioned with his finger that he would
like to speak with me privately in the hallway,
4. We subsequently had a conversation outside of the earshot of those appearing and
participating in the hearing, including the developer and its counsel.
5. Mr. Ready requested that I change my opposition to the project and instead support
the project, because I would not win."
6. Mr, Ready stated that"You are very good in what you say and are very persistent,but
will not win on this. It is better if you ask them what they[the developer] or this
project can do for you instead."
7. Mr. Ready indicated that the outcome was a foregone conclusion,
8. This conversation occurred prior to the conclusion of all public hearings relating to.
the project.
9. I left that conversation with Mr;Ready certain that I& Ready and the Salem
Planning Board had already determined that the project was going to be approved.
Signed under the pains and penalties of perjury this the%day of February, 2011.
Katerina Panagiotaffi
Exhibit " C "
AFFIDAVIT OF CALVIN ANDERSON
My name is Calvin Anderson of and I have personal knowledge of the following facts:
1. I appeared at many of the hearings before the City of Salem Planning Board to speak
in opposition the proposed commercial development project.
2. During my appearance at one of these hearings in or around December, 2010, Salem
Planning Board member Tim Ready had occasion to speak with Ms. Katerina
Panagiotakis and me in a hallway following the meeting.
3. The three of us subsequently had a conversation outside of the earshot of those
appearing and participating in the hearing, including the developer and its counsel.
4, Mr. Ready stated that he recognized our commitment and passion for our opposing
view.
5. Mr. Ready recommended that we would be best served by not opposing the subject
project as the project was going to be ultimately approved by the Salem Planning
Board,
6. Mr. Ready indicated that the outcome was a foregone conclusion.
7. Mr, Ready stated that the project would proceed ahead"one way or another."
8. Mr, Ready recommended that rather than opposing the project, we should each
attempt to elicit concessions and benefits from the developer on behalf of the City of
Lynn and the neighbors to the project.
9. Mr. Ready stated that those in opposition would be better off"asking what `they" [the
developer] could do for you."
10,Mr. Ready indicated that we should back off and see what accommodations to the
plan we could receive from the developer.
11. This conversation occurred prior to the conclusion of all public hearings relating to
the project.
12, I left that conversation with Mr. Ready certain that Mr. Ready and the Salem
Planning Board had already determined that the project was going to be approved.
Signed under the pains and penalties ofpedury this the, day Feb ary, 2011.
Calvin erson
• :TRIAL COURT OF MASSAC-WSIFIS'.
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CERTIFICATE OF SERVICE
I, George S. Markopoulos, hereby certify that I did serve the within documents of the following:
1. Plaintiffs' Assented to Motion to Amend Complaint.
2. Second Amended Complaint and Jury Demand.
by mailing the original to the court and a copy of the same,postage prepaid, to the counsel of
record.
Signed under the pains and penalties of perjury,
George S. Markopoulos
Dated: May 10, 2011
Affidavit of Danielle McKnight
1, Danielle McKnight, being of majority hereby depose and state as follows:
1. 1 have been the Staff Planner assigned to Salem Planning Board since November,2008. As staff planner,
I am also the Keeper of the Record for the Salem Planning Board.
2. I have reviewed the February 28 2011 O Meeting Complaint("Compliant") made by Michael Barry,
Open B P
Lynn City Solicitor,against the City of Salem Planning Board ("Planning Board") relative the January 18,
2011 decision of the Planning Board approving the proposed expansion of a Wal-Mart and construction
of a Lowe's home improvement store(the"Project").
3. Notice of the hearings, including continuations,were properly posted on the Board's meeting notice and
agenda in accordance with the Massachusetts Open Meeting Law, M.G.L.c.39, §23B, repealed and
replaced effective July 1,2010 with M.G.L.c.30A§§18-25. Certified copies of all notices are attached
hereto as Exhibit A-1.
4. Upon information and belief, no meeting of the Salem Planning Board was held relative to the Project
other than those posted in accordance with the Massachusetts Open Meeting Law.
5. In addition to posting all hearing notices as required under the Massachusetts Open Meeting Law,
commencing May 18,2010,hearing notices were emailed to City of Lynn, MA officials and commencing
April 1, 2010,hearing notices were emailed to the office of Lynn State Representative Robert Fennell.
6. In addition, based on my review of the record,the Salem Planning Board provided written notice of the
public hearings to all parties in interest which includes abutters to the Project and the Planning Board's
of surrounding towns. See Exhibit A-2 containing the notice,list of abutters and Planning Boards to
which the notices were sent.
Signed under the pains and penalties of perjury this 16th day of March,2011.
. `
Danielle McKnight
RECEIVED
CITY OF LYNN MAY 13 2010
LAW DEPARTMENT DEPT.OF PLANNING&
A COMMUNITY DEVELOPMENT
Michael J.Barry T $ George S.Markopoulos
City Solicitor .' .�_ •" Asst.City Solicitor
g,
Richard L.Vitali
Asst.City Solicitor
Room 406,City Hall
Lynn,Massachusetts 01901
(781)598.4000 Ext.6840
Fax(781)477-7043
May 10, 2010
Ms. Robin Stein, Chai:wornan
Zoning Board of Appeals
Salem City Hall
93 Washington Street
Salem, MA 01970
Re: Wal-Mart/Lowe's Proposal
Dear Chairwoman Stein:
Please be advised that the Lynn City Council has requested copies of all Notices
regarding any future hearings before your Board pertaining to the proposed expansion of the
Wal-Mart/Lowe's Project on Highland Avenue, Kindly forward copies of any such Notices to
Mary F. Audley, City Clerk, City.Clerk's Office, Lynn City Hall Lynn, MA 01901.
Thank you for your attention to this matter.
Very truly yours,
Michael.J: rry
City Solicitor
cc::, Mary F: Audley,-City Clerk
i
CERTIFICATION
I, Danielle McKnight, as Staff Planner to the Salem Planning Board, hereby
certify that the following attached are true copies of the public hearing notices for the
Kennedy Development Group, Inc.'s Highland Avenue proposed development project,
Assessors' certifications of project abutters and the associated abutters lists for the project
and the list of abutting town and city Planning Boards.
Signed under the pains and penalties of perjury this 17`h day of March, 2011.
Danielle McKnight ��T
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Danvers, Massachusetts 01923
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Swampscott, Massachusetts 01907
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22 Monument Avenue
Swampscott, Massachusetts 01907
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22 Monument Avenue
Swampscott, Massachusetts 01907
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22 Monument Avenue
Swampscott, Massachusetts 01907
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Swampscott, Massachusetts 01907
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24 Lowell Street
Peabody, Massachusetts 01960
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Peabody, Massachusetts 01960
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Office of Community Dev. & Planning
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Peabody, Massachusetts 01960
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Office of Community Dev. & Planning
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191 Cabot Street
Beverly, Massachusetts 01915
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Beverly, Massachusetts 01915
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Beverly, Massachusetts 01915
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Marblehead,Massachusetts 01945
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188 Washington Street
Marblehead, Massachusetts 01945
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Abbot Hall
188 Washington Street
Marblehead,Massachusetts 01945
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188 Washington Street
Marblehead, Massachusetts 01945
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188 Washington Street
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3 City Hall Square
Lynn, Massachusetts 01901
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Danvers,Massachusetts 01923
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22 Monument Avenue
Swampscott, Massachusetts 01907
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22 Monument Avenue
Swampscott, Massachusetts 01907
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22 Monument Avenue
Swampscott, Massachusetts 01907
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22 Monument Avenue
Swampscott, Massachusetts 01907
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Peabody, Massachusetts 01960
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Office of Community Dev. & Planning
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Peabody, Massachusetts 01960
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24 Lowell Street 24 Lowell Street
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Peabody, Massachusetts 01960
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191 Cabot Street
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191 Cabot Street
Beverly, Massachusetts 01915
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1.91 Cabot Street
Beverly, Massachusetts 01915
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191 Cabot Street
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CITY OF LYNN
LAW DEPARTMENT
fiA
'
Michael J.Barry T � George S.Mark opoulo.
City Solicitor '",� AssL City solicitor
�S
AIS M. So
atl L.
Asst Cily Solicitor
Room City Hell
I-ynR Massachusetts9114000Ext01001
(781)59114000 Ext.63E0
Fax(]3t)<]]-]003
February 10,2011
DELIVERED IN RAND
Cheryl A.Lapointe,City Clerk
City Clerk's Office
93 Washington Street
Salem MA 01970 .
RE:STILIAN,ET.AL.
VS:PULEO.ET AL
NO:2011-222A
Deart City Clerk:
Please be advised that the City of Lynn Planning Board and City of Lynn,did file a
First Amended Complaint and Jury Demand against the Planning Board of the City of
Salem,the City of Salem and Kennedy Development Group,Inc.today,February 10,
2011,in the Essex County Superior Court,a copy of which is.attached hereto.
VVee�ry/yy untly yours,7/"`'',`�"'�
GeoigeS Markopoulos
Assistant City Solicitor
Encs.
xc:Elizabeth Ram ard,City Solicitor
Joseph Correnti,Esquire
CITY OF LYNN
LAW DEPARTMENT
MichaelJ,Barry T .a George S.Markopetims.
City schutor j, AssL City Solicitor
Richartl LVitall
Asst.Clly Solioltor
Roam 406,City Hall
Lyn,Massachusetts 01901 _
(781)698-40(10 Ext6040
Fax(701)477-0043
February 10,2011
DELIVERED IN HAND
Essex County Superior Court
Clerk's Office
34 Federal Street _
Salem MA 01970
RE:STILIAN,ET AL.
VS:PULEO,ET AL
NO:2011-222A
Dear Clerk
Enclosed please find for filing:
L First Amended Complaint and Jury Demand.
2. Certificate of Service.
Very truly yours,
Georgie S.Markopoulos
Assistant City Solicitor
Encs.
so: Elizabeth Renard,City Solicitor
Joseph Correnti,Esquire
COMM'ONA'EALTH OF MASSACHUSETTS
ESSEX,SS SUPERIOR COURT
CIVIL ACTION NO: 2011-222A
ROBERT STILIAN,LAMES MAHONEY, )
DAVID ANGELLI,PAUL PRICE AND )
STEPHEN UPTON,AS THEY ARE MEMBERS )
OF THE CITY OF LYNN PLANNING BOARD, )
THE CITY OF LYNN PLANNING BOARD AND )
THE CITY OF LYNN )
Plaintiff )
V.
CHARLES PULED,RANDY CLARKE, )
MARK GEORGE,NADINE HANSCOM, )
JOHN MOSTAKIS,TIM READY, )
TIMOTHY KAVANAUGH AND HELEN SIDES )
CHRISTINE SULLIVAN )
AS THEY ARE THE PLANNING BOARD OF )
THE CITY OF SALEM,AND NOT INDIVIDUALLY)
THE CITY OF SALEM )
AND KENNEDY DEVELOPMENT GROUP,INC. )
Defendants )
FIRST AMENDED COMPLAINT AND JURY DEMAND
I. Robert Stilian is a member of the City of Lynn Planning Board with a
business address,Lynn City Hall,3 City Hall Square,Lynn,MA 01901.
2. James Mahoney is a member of the City of Lynn Planning Board with a
business address,Lynn City Hall,3 City Hall Square,Lynn,MA 01901.
3. David Angelb is a member of the City of Lynn Planning Board with a
business address,Lynn City Hall,3 City Hall Square,Lynn,MA 01901.
4. Paul Price is a member of the City of Lynn Planning Board with a business
address,Lynn City Hall,3 City Hall Square,Lynn,MA 01901
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5. Steven Upton is a member of the City of Lynn Planning Board with a
business address,Lynn City Hall,3 City Hall Square,Lynn,MA 01901.
6. The City of Lynn is a municipal corporation duly organized under the laws
of the Commonwealth of Massachusetts
7. The Lynn Planning Board is a municipal agency duly created under the
laws of the Commonwealth of Massachusetts.
S. Kennedy Development Group, Inc. is a Massachusetts Corporation duly
organized under the laws of the Commonwealth of Massachusetts with a principal place
of business located at 500 Broadway,Everett,MA 02149.
9. The Kennedy Development Group, Inc, is a developer intending to
construct a large commercial development at 440,460, 462 and 488 Highland Avenue,
Salem, Massachusetts (hereinafter referred to as `the proposed commercial
development").
1C. Defendants Charles Pulec,Randy Clarke,Marc George,Nadine Hanscom,
Timothy Kavanaugh,John Moustakis,Tun Ready,Helen Sides and Christine Sullivan are
members of the City of Salem Planning Board.
11. The residential addresses of the members of the Salem Planning Board are
as follows:
Chuck Puleo,Chair,5 Freeman Road,Salem,MA 01970
John Moustakis,Viee Chau,23 Dearborn Street,Salem,MA 01970
Randy Clarke,19 Bentley Street,Salem,MA 01970
Nadine Hanscom, 10 Bay View Circle,Salem,MA 01970
Mark George;26 Settlers Way,Salem,MA 01970
Tim Kavanaugh, 14 May Street,Salem,MA 01970
Tim Reddy,22 Sable Road,Salem,MA 01970
Christine Sullivan. I l l Federal Street,Salem,MA 01970
Helen Sides,35 Broad Street,Salem,MA 01970
12. The City of Salem is a municipal corporation with a business address of 93
Washington Street,Salem,Massachusetts.
13. Upon information and belief,in and around 2008,the City of Salem entered
into negotiations with the developer to encourage the proposed commercial development.
14. As of 2008, the proposed commercial development was not zoned in a
manner which would allow the construction of a Lowes/Super Walman at that site,
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15. At the request of the Mayor, the City of Salem initiated a zoning change
that was designed specifically to allow the proposed commercial development project as
a matter of right
16. The City of Salem subsequently adopted such a zoning change that
facilitated the proposed commercial development project as a matter of tight.
17. Upon information and belief, the City of Salem did not provide the
statutorily required notice to abutters and parties in interest as defined by Massachusetts
General Laws Chapter 40A prior to adopting said zoning change.
18. Upon information and belief,the Mayor of the City of Salem entered into
negotiations with the developer to arrange for a land swap to facilitate the proposed
commercial development project.
19. As part of these secret negotiations, the developer agreed to construct a
water tower for the use of the residents of the City of Salem at significant cost.
20. Upon-information and belief, the water tower is intended to be used to
promote a facilitate the construction of hundreds of newly constructed heroes near the
site by a private developer.
21. upon information and belief, the City of Salem though its elected and
appointed officials wished to promote the construction of this large subdivision by
demanding a concession that the developer of the proposed commercial development
project constrict such a water tank
22, Upon infommation and belie£ the water tank will substantially reduce the
cost of constructing the proposed residential homes and developing the area near the site
of the proposed commercial development project.
23. As Mayor of the City of Salem, the Mayor is the appointing authority for
the members of the Salem Planning Board.
24. Prior to the submission of applications to the City of Salem Planning
Board,the Mayor and other municipal officials politically spoke in favor of the proposed
development project. -
25. The proposed development project is located on Route 107 (Highland
Avenue)and is in close proximity to the City of Lynn.
3 of l6
26. The only public ingress/egress to the proposed project development is
proposed to be Route 107, a residential street which is shared by Lynn and Salem and
Magnolia.The plan proposes no other public ingress or egress.
27. Belleaue Avenue as shown on the maps and plans of the City of Lynn
immediately abuts the proposed commercial development project and the City of Lynn
has a property interest therein.
28. Bellaire Avenue is a public way within the City of Lynn.
29. Belleave Avenue isnot fully constructed and still consists of a"paper'
street with one buildable lot.
30. The "paper" portion of Bellaire Avenue extends into Salem prior to
returning to intersect with pays Ave in Lynn.
31. Due to the current dead end length of Bellaire Avenue this paper section of
Bellaire Avenue is necessary to conform to City of Lynn Planning Board Rules and
Regulations Section VIIA. 4. - Dead End Street which limits the length of a dead end
street to one thousand feet.
32. Failure to complete the roadway would require this roadway to be further -
extended beyond the thousand foot length required in the Rules and Regulations
necessitating a waiver from the Planning Board,
33. The City of Lynn Planning Board had previously approved a subdivision
riled by the Bellaire Avenue Realty trust to allow the construction of residential homes on
a newly created Apple Hill Lane.
34. The City of Lynn Planning Board continues to retain jurisdiction over the
Apple Hill Lane subdivision as the project has not yet been completed.
35. The Apple Hills Subdivision is a sixteen lot residential subdivision of
single faintly homes.
36. Seven of the lots have homes constructed or under constmction within this
subdivision which is still under the City of Lynn Planning board jurisdictions and
supervision.
37. The Planning Board has a performance guarantee in the amormt of
$227,325 for the proper and timely completion of this subdivision.
4 of 16
38, The proposed commercial development project abuts this subdivision and
its construction as proposed will impact the ability of the developer to sell these lots and
_ complete this project in a timely fashion due to the disruptive impacts of this commercial
development directly abutting these residential lots including privacy,noise and light not
normally found within a single family home residential subdivision.
39. The balloon test performed was not viewed by the Lynn Planning Board or
the Apple Hills Developer nor did either have the ability to participate in the design or
location of the proposed sound/screening wall.
40. The proposed hours of the truck deliveries and their associated noise will
violate the City of Lynn's noise ordinance which restricts similar noise generating
activities in Lynn.
41. Route 107 is a Massachusetts State Highway which cornetts the City of
Salem and the City of Lynn,
42. At or near the City line separating the City of Salem and the City of Lynn,
Route 107, changes from a four lane roadway (two in each direction) to a two lane
roadway(with one lane of travel in each direction).
43. In and around 2010, the developer filed an application with the Salem
Planning Board under Section 7.3,Planned Unit Development and Section 95, Site Plan
Review,of the City of Salem Zoning Ordinance.
44. The proposed project included a new Lowe's Home Improvement retain
store,a new expanded Walman store, expanded Meineke Store, improvements to Camp
Lion,and a new municipal water tank.
45. Charles Puleo is the Chairman of the City of Salem Planning Board.
46. Chairman Puleo owns commercial property located at/or near 376 Highland
Avenue,Salem,Massachusetts.
47. Chairman Puleo served as Chairman of the Salem Planning Board during
numerous public hearings held relative to the developer's application.
48. As Chairman,Mr.Puleo controlled the agenda,selected which members of
the public could speak at the hearing and established procedures limiting the amount of
speakers and time allotted to such speakers during the numerous public hearings.
49. Upon information and belief,Chairman Puleo had a fmancial interest in the
allowance of the proposed development Project as the project would likely result in an
5 ofl6
increase to patrons of business/commercial uses including a retail food establishment and
a credit union own,managed,leased and/or operated by Chairman Puleo.
50, The Mayor of the City of Salem incorrectly permitted Chairman Puleo to
deliberate and vote on the subject petitions given his obvious fmancial interest.
51. Chairman Price's business uses,including s credit union will be the closest
banking institution to the proposed commercial development project.
52. Chairman Puleo's restaurant or the restaurant he leases will be the closest
food establishment which serves breakfast.
53. Chairman Puleo's restaurant or the restaurant he leases will be the closest
drive thin restaurant/dining establishment to the proposed development project
54, The proposed commercial development project will substantially increase
the number of patrons to businesses owmed,managed and/or leased by Chairman Puleo.
55. Upon information and belief, the Mayor of the City of Salem permitted
Chairman Palen to deliberate and vote on the matter based noon her public support of the
project.
56, Public hearings were held on March 18,April 1,April 15,May 6,May 20,
June 3, June 17, Julv 15, September 16, September 20, October 21, November 18,
December 2,December 16,2011 and January6 and 13,2011,
57. On June 17, 2010, the City of Salem Planning Board opened a public
hearing under section 8.1, wetlands and Flood Overlay District of the City of Salem
Zone Ordinance,
58. At the present time, numerous residents of the-City of Lynn experience
flooding and drainage runoff which emanates from the site of the proposed development
project,specifically the proposed site of the new Lowe's Horne Improvement retail store.
59. The proposed commercial development as described in the plans and maps
does not comply with the City of Salem Master Plan and good coning practice as is
required by Section 7.3.1 of the City of Salem Zone Ordinance.
60. The proposed commercial development is not compatible with the surround
area, including, but not limited to conservation land located in the City of Lynn which
immediately abuts the proposed project site.
6 of 16
61. The proposed coannercial project does not contain a minimum of the lesser
of sixty thousand (60,000) square feet or five (5) times the minimum lot size of the
zoning district it is in as required by Section 7.3.2 of the City of Salem Zone Ordinance.
62. During the public hearings,the Developer failed to offer evidence as to the
means that would be employed to protect the abutting property and the health, welfare
and privacy enjoyed thereon as is required by Section 7.3.3(2)of the City of Salem Zone
Ordinance,
63. The proposed commercial project will significantly injure the health,safety,
welfare and privacy of current and future abutting property owners, including but not
limited to property owners of Bellaire Avenue which immediately abuts the property.
64. Purported balloon tests conducted by the developer were flawed from an
engineering perspective and did not adequately predict the site line and visual impacts of
the proposed commercial development.
65. The purported balloon tests were not adequately publicized to allow the
Plaintiff and the residents of the City of Lyrm to monitor the site line and visual impacts
of the proposed commercial development.
66. The proposed commercial project would cause significant negative visual
impacts to residential property in the City of Lynn.
6T A proposed 15 foot high sound/screening wall to be constructed behind the
proposed Lowe's Home Improvement retail store would be insufficient to protect the
health,safety,welfare and privacy of abutting properties and to residents of the City of
Lynn.
69. The proposed 15 foot high sound/screening wall is insufficient to alleviate
increased noise and the negative visual impact of the proposed commercial project.
69. Thero osed 15 foot sound/screening wall is insufficient to alleviate or
P P g
eliminate the noise and visual issues expected to be experienced by abutting Lynn
residential neighborhood development.
70. The proposed commercial project will threaten the health, safety, welfare
and privacy of the abutting Lynn residential property owners.
71. The proposed planned unit development is not in harmony with the purpose
and intent of the City of Salem Zone Ordinance and the Master Plan of the City of Salem.
7 of 16
72. The proposed commercial project is not sufficiently advantageous to tender
it appropriate to depart from the normal requirements of the Business Park District
73. The proposed commercial project will have a significant negative impact as
it will result in loss of open space,nature trails and will adversely impact conservation
land and wetlands.
74. The proposed commercial project will result in a significant increase in
traffic, particularly upon Route 107 in Lynn which threatens the health,safety,welfare
and privacy of the City of Lynn and its residents.
75. The proposed commercial project will generate no tax revenue to the City
of Lynn and will likely result in a reduction in property tax revenue from residential -
properties near the proposed site.
76. The proposed commercial project will require significant removal of frees
and shrubbery near the City of Lynn line.
77. The removal of trees and significant blasting will threaten and injure the
health,safety,welfare and privacy of the City of Lynn and its residents.
78. The drainage issues which currently emanates from the site will be
exacerbated by the proposedcommercial project.
79. In contradiction to the mandates of the Salem Zoning Ordinance and the -
City of Salem Master Plan, on January 13, 2011,the Defendant Salem Planning Board
unanimously found that the proposed project met the provisions of Section 7.3, Planned
Unit Development,of the City of Salem Zone Ordinance and approved Site Plan Review,
Planned Unit Development Special Permit and Worland and Flood Hazard District
Special Permit.
80. As a condition to the Special Permit, the Salem Planning Board required
the developer to provide approximately$100,000 for studies and peer reviews for traffic
mitigation.
81. The proposed commercial project will have a far greater negative impact
upon the City of Lynn.
82, Nevertheless, the Salem Planning Board imposed no conditions and
required no financial expenditures for traffic mitigation in the City of Lynn.
83. The Salem Planning Board did not seek or receive input from the City of
Lynn Planning Board relative to traffic ntitigations in the City of Lynn.
8 of 16
84, The Salem Planning Board imposed conditions relating to traffic design at
intersections lying solely in the City of Lynn without seeking or obtaining input from the
City of Lynn Planning Board and the City of Lynn Department of Public Works.
85. The conditions imposed by the Salem Planning Board with respect to the
redesign of intersections lying whole in the City of Lynn will not promote the health,
safety and welfare of the residentsandvisitors of the City of Lynn and will have adverse
financial and other implications upon the City of Lynn as they relate to traffic,drainage
and public safety.
86. Despite the fact that residents of the City of Lynn are presently far more
impacted by drainage issues emanating from the site,the Salem Planning Board required
the developer as a condition of the Special Permit to contribute more money to the City
o`Salem to alleviate drainage and storm water issues that the amount required to be
contributed to the City of Lynn.
87. The decision of the Salem Planning Board was filed with the City Clerk's
Office on January 18,2011.
88. In January, 2011, the City of Salem Zoning Board of Appeals denied a
petition to locate a methadone clinic on Route 107 in Salem.
89 The Notice of Decision filed by the Salem Zoning board of Appeals states
that the proposed methadone clinic would generate unneeded traffic and would
negatively effect the neighborhood as a result of such increased traffic.
90. Upon information and belief,the methadone clinic would generate far less
traffic than the proposed commercial development.
91. The methadone clinic was proposed to be sited at a location where Route
107 had four lanes of travel,two in each direction.
92. The proposed co mnercial development is located near the site where Route
107 narrows to two lanes of travel at the Lynn/Salem border.
93. Katerina Panagiotakis and Calvin Anderson are two.Lynn residents who
appeared at many of the hearings before the City of Salem Planning Board to speak in
opposition the proposed commercial development project. (See Affidavits attached as
Exhibit B and C,respectfully).
94. During their appearances at one of these hearings in or around fall of 2010,
Salem Planning Board member Tien Ready had occasion to speak with Calvin Anderson
9 of 16
and Katerina Panagiotakis in a hallway following the meeting. See Affidavits attached as
Exhibits B and C,respectfully).
95. At the conclusion of the heating, Mr. Ready motioned with his finger that
he would like to speak with Katerina Panagictakis and Calvin Anderson privately in the
hallway. (See Affidavits attached as Exhibit B and C,respectfully).
96, Katemia Panagiotakis and Calvin Anderson subsequently had a
conversation outside of the earshot of those appearing and participating in the heating,
including the developer and its counsel. (See Affidavits attached as Exhibit B and C,
respectfully).
97. b4. Ready requested that Katerina Panagiotalds and Calvin Anderson
change our opposition to the project and instead support the project,because[we]would
not wine' (See Affidavits attached as Exhibit B and C,respectfully).
98. Mr.Ready stated to Katerina Panagiotakis and Calvin Anderson that"You
are very good in what you say and are very persistent,but will not win on this. It is better
if you ask them what they[the developer] or this project can do for you instead." (See
Affidavits attached as Exhibit B and C,respectfully).
99_ Mr. Ready indicated that the outcome was a foregone conclusion. (See
Affidavits attached as Exhibit B and C,respectfully).
100. Mr. Ready stated that the project would proceed ahead "one way or
another." (See Affidavits attached as Exhibit and C,respectfltlly).
101. This conversation occurred prior to the conclusion of all public hearings
relating to the project. (See Affidavits attached as Exhibit B and C,respectfully).
102. Katerina Pauagiotakis and Calvin Anderson left that conversation with Mr.
Ready certain that Mr.Ready and the Salem Planning Board had already determined that
the project was going to be approved. (See Affidavits attached as Exhibit B and C,
respectfully).
103. The City of Lynn and the City of Lynn Planning Board are persons
aggrieved by the decision of the Salem Planning Board
104. A certified copy of said decision is dated January, 18, 2011 is attached
hereto as`Exhibit A."
I
10 of 16
105. The City of Lynn and the Lynn Planning Board have satisfied all conditions
precedent as required by Mass.R.Civ.Pro. 9(e) in bringing this litigation pursuant to
M.G.L.c.40A,Sec. 17,
106. The decision of the Salem Planning Board is based upon the legally
untenable interpretation of the Salem Zone Ordinance and the Salem Master Plan.
107. Said decision of the Salem Planning Board is based upon legally untenable
grounds, is whimsical, capricious or arbitrary, has insubstantial basis in fact and is an
abuse of discretion by said Board.
105. Said decision of the Salem planning Board falls to give a requisite
statement of reasons or make findings of facts to support the denial of granting of Special
Permits.
109. Defendant Salem Planning Board wrongfully applied the provisions of the
Massachusetts General Laws as amended and the City of Salem Zone Ordinance and City
of Salem Master Plan.
110. Said decision of the Salem Planning Board exceeds the authority of the
Salem Planning Board.
COUNT 1 -DECISION OF SALEM PL_4h7VING BOARD IS ARBITRARY AND
CAPRICIOUS(M.G.L.c.40A.s.17).
111. The plaintiffs repeat and reallege the allegations contained in paragraphs
One through One Hundred Ten as if fully stated herein.
112. The decision of the Salem Planning Board is arbitrary,capricious and not
supported by the evidence proffered dining public hearings and exceeds the authority of
the Planning Board,
COUNT 2 - DECISION OF THE SALEM PLANNING BOARD LACKS
SPECIFIC FINDINGS
113. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred Twelve as if fully stated herein.
114. The decision of the Salem Planning board lacks specific findings as is
required by the City of Salem Zone Ordinance, the City of Salem Master Plan and
Massachusetts General Laws Chapter 40A.
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COUNT 3 -VIOLATION OF M.G.L.40A,s.5
115. The plaintiffs reoeat and reallege the allegations contained in Paragraphs
One though One Hundred Fourteen as if fully stated herein.
115, in or around 2008,the City of Salem voted to amend its Zone Ordinance
with specific application to the site of the proposed commercial project
116. Upon information and belief, the City of Salem did not comply with the
requirements of M.G.L. c. 40A, s. 5 when adopting said amendments to the Zone
Ordinance. i
112 Upon information and belief,the City of Salem did not provide notice to all
persons and boards as is required by M.G.L.c.40A,s.5.
116. As a result of the City of Salem's failure to comply with M.G.L.c.40A,s.
5, the purported Zoning amendments pennitting the proposed commercial development
project should be annulled.
COUNT 4 -SPOT ZONING
119. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred Eighteen as if fully stated herein.
120. The amendments to the City of Salem Zone Ordinance constitute.unlawful
spot zoning as the amendment applied solely to parcels relating to the site of the proposed
cmmnercial project.
121. The Defendant City of Salem failed to provide proper notice of the
amendments to the City of Salem Zone Ordinance as is required by M.G.L.c.40A,s.5.
122. The purported amendment to the Salem Zone Ordinance effecting the site
of the proposed commercial project should be found to be null and void as the
amendment constitutes spot zoning.
COUNT 5 -VIOLATION OF M.G.L.C.268A -
123. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred Twenty-two as if fully stated herein.
124. Charles Moo is the Chairman of the City of Salem Plarmng Board.
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125. As Chairman, Mr. Puleo controlled the agenda and established and
enforced procedures relating to the public hearings.
126. Chairman Puleo determined the number of individuals who would be
allowed to speak on a given subject and the order thereof.
127. Chairman Puleo determined the amount of time that the Salem Planning
Board would devote to the matter at each public hearing thereon.
128. Chairman Puleo owns and/or has a financial interest in property which is in
close proximity to the site of the proposed commercial project. _
129. It is agreed by the all parties that the proposed commercial development
will result in increased traffic along Route 107.
130. The ex_uected increase in traffic along with the influx of construction
workers, employees and shoppers will likely result in an increase of need and
consumption of food and banking services.
131. It is reasonably foreseeable and likely that Chairman Puleo will experience
an increase in business at his retail food/dairy establishment and banking institutions
located at 370 and 376 Highland Avenue. _
132. M.G.L.c.268A prohibits a municipal employee to participate in any matter
where it is reasonably foreseeable that the employee has a financial interest in the matter.
133. Chairman ?nice actively participated in the petition of the developer and
controlled and influenced debate.
134. Chairman Puleo should have recused himself from this matter given his
nersonal financial interest in the granting of the special permit.
135. The Mayor of the City of Salem should not have determined that Chairman
Puleo's financial interest was such that would render hire to be impartial in participating
in this matter.
COUNT 6 -OPEN MEETING LANA'VIOLATION
136. The plaintiffs repeat and reallege the allegations contained in paragraphs
One through One Hundred and Thiny-five as if fully stated herein.
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137. Upon information and belief, neither the developer nor the City of Salem
Planning Board provided proper notice to all parties in interest and abutters to the project
as is required by M.G.L.c.40A.
138. As a result of the failure to comply with statutory notice requirements,the
decision of the Salem Planning Board should be annulled.
139. Statements made by Planning Member Tim ready confirm that he had
determined to vote to approve the subject commercial development project prior to the
conclusion of the public hearings. _
140. Mr. Ready stated that opponents to the project should attempt to elicit
concession,fmaocial and otherwise for the City of Lynn.
COUNT 7 - PLANNING BOARD LACKS JURISDICTION TO ISSUE
CONDITIONS WITH RESPECT TO LAND LYING SOLELY IN THE CITY OF
LYNN
141. The plaintiffs repeatand reallege the allegations contained in Paragraphs
One through One Hundred and Forty as if fully stated herein.
142. The decision of the Salem Planning Board requires the developer to
undertake the redesign of certain intersections why lie solely within the City of Lynn.
143. Prior to imposing such conditions, the Salem Planning Board did not
consult with the City of Lynn Planning Board, the City of Lynn Fire Department or the
City of Lynn Deparunent of Public Works.
144. Said traffic conditions have a direct impact upon the residents and visitors
of the City of Lynn.
145, The Salem Planning Board lacks jurisdiction to require certain traffic
alterations over land which does not lie within the City of Salem.
COUNT S -VIOLATION OF DUE PROCESS RIGHTS
146. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred and Forty-five as if fully stated herein.
147. The City of Salem, through its Mayor and elected and appointed officials
negotiated with the developer for several years prior to the granting of a special permit.
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148. The City of Salem; by and through its appointed and elected officials
negotiated a land swap with the developer prior to the filing of an petitions to complete
the proposed commercial project.
149. The City of Salem, by and through its elected and appointed officials,
negotiated the construction of a water tower for the benefit of the residents of Salem.
150, The City of Salem, by and through its elected and appointed officials
proposed and adopted amendments to the City of Salem Zone Ordinance solely for the
purpose of allowing the proposed cornmercial development as a matter of right.
151. The Mayor of the City of Salem is the appointing authority for members of
the City of Salem Planning Board.
152. Upon information and belief,certain members of the Salem Planning Board
are hold-over appointments as their terms have expired.
153. Upon information and belief,these members were not re-appointed prior to
the vote on this matter as a means to ensure that the special permit would be granted.
154. The Mayor of the City of Salem was a vocal proponent of the proposed
conumi-cial project and actively campaigned and negotiated with the developer prior to
the filing of the instant applications for permits.
155. Thousands of individuals signed petitions in opposition to the proposed
commercial project and submitted such opposition to the Salem Planning Board.
156. Hundreds of individuals appeared at public hearings before the Salem
Planning Board in opposition to the proposed commercial project.
157. The great weight of the evidence presented to the Salem Planning Board
demonstrated that the application for permits did not comply with the Salem Zone
Ordinance and the Salem Master Plan.
158. The public hearings and subsequent deliberations were predetermined prior
to the commencement of the hearings themselves.
159. The hearings were merely a sham in an attempt to comply with the hearing
requirements mandated by the Salem Zone Ordinance and Massachusetts General Laws
Chapter 40A.
160 .City of Salem Planning Board member Tim Ready publically revealed that
the project was going to be approved one way or another."
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161. Mr. Ready advised opponents of the project from Lynn to support the
project and attempt to gain concessions,financial and otherwise,from the developer. -
162. Mr. Ready made these statements prior to the conclusion of the public
hearings.
Wherefore the Plaintiffs City of Lynn and the City of Lynn Planning Board pray
that this Honorable Court, pursuant to M.G.L. c. 40A, s. 17 and the Court's general
equity power:
1. Enter an order annulling said decision of the City of Salem Planning Board
dated January 18,filed in the office of the City Clerk on January 18,2011.
2. Enter an Order that the City of Salem Building Department refrain from
issuing any building permits relating to the project.
3. Grant the Plaintiffs them attorney's fees,costs and expenses.
4. Grant such other and further relief as the Court may deem just and proper.
JURY DEMAND
The Defendant City of Lynn aid Lynn Planning Board hereby demands a trial by
jury on all triable issues of fact,
The City of Lynn
The City of Lynn Plarming Board
By their Attorney
George S.Markopoulos,Esquire
Assistant City Solicitor
Lytm City Hall,Room 406
Lynn,MA 01901
BBO#546189
(718)596-4000 Ext 6840
Dated: February 10,2011
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xhibit "A"
"
CITY OF SALEM
{ PLANNING BOARD
77I &N IS P 7: ^h
Site Plan Review,Planned Unit DevelopmehlfSp'eilid P8imity'.=>.
and Wetland and Flood Hazard District Special Permit Decision
440,460,462,and 488 HIGHLAND AVENUE(Map 3,Lots 1,2,3 and 4)
January 18,2011
Kennedy Development Group,Inc. -
C/o Joseph Correnti,Esq.
Serafim,Darling&Correnti
63 Federal Street
Salem,MA 01970
RE-Lowe's Home Improvement retail store,new,expanded W almart store,expanded Meineke store,
Camp Lion improvements and new municipal water tank
Site Plan Review/Planned Unit Development
On Thursday,March 18,2010,the Planning Board of the City of Salem opened a Public Hearing under
Section 7.3,Planned Unit Development,and Section 9.5,Site Plan Review,of the City of Salem
Zoning Ordinance,at the;equest of Kennedy Development Group,Inc.,for the properties located at
440,460,462,and 488 HIGHLAND AVENUE(Map 3,Lots 1,2,3 and 4).The proposed project
includes a new Lowe's Home Improvement retail store,a new,expanded Walmart store,expanded
Meineke store,improvements to Camp Lion,and a new municipal water tank.
The Public Hearing was continued to April 1,2010,April 15,2010,May 6,2010,May 20.2010,June
3,2010,June 17,2010,July 15.2010,September 16,2010,September 30,2010,October 21,2010,
November 18,2010,December 2,2010,December 16,2010,January 6,2011,and Ianuary 13,2011.
On Thursday,June 17,2010,the Planning Board of the City of Salem opened a Public Hearing under
Section S.1,Wetlands and Flood Hazard Overlay District(WFHOD),of the City of Salem Zoning
Ordinance,at the request of Kennedy Development Group,Inc.,for the property located at 488
- HIGHLAND AVENUE(Map 3,Lot 1).The proposed project includes a new Lowe's Home
Improvement retail store. The Public Hearing was continued to July 13,2010,September 16,2010,
September 30,2010,October 21,2010,November 18,2010,December 2,2010,December 16,2010,
January 6,2011,and January 13,2011.
The Planning Board,after numerous public hearings and review ofsubmitted materials,hereby makes
the following"Findings of Fact",attached as Exhibit A and hereby incorporated as part of this
decision.
120 Wnsninsron.moor,SALe.,Mnssncnassrs 01970.Tse:978.745.9595 Fra:978.740.0409.wuw.v.aaM.com
L\
The Planning Board also hereby finds that the proposed project meets the provisions of the City of
Salem Zoning Ordinance,Sec.7.3 Planned Unit Development,as follows:
1) 7.3.1 Purpose—The proposed Planned Unit Development(PUD),which incorporates retail,
municipal,and outdoor recreational uses,meets the purpose and intent of the Zoning Ordinance and
Master Plan of the City of Salem:
2) 7.3.2 Applicability—The proposed development parcel is significantly greater than 60,000 square
feet m area The underlying zoning districts of the proposed development parcel are BPD
(BusmesaPark'De:elopment)and B-2(Highway Business=District),each ofwhich are eligible
districts for PUD treatment.
3) 7.3.3 Uses—The proposed uses,including retail,municipal,and outdoor recreation,are allowed in a
PUD development.
7.3.3.2—The Applicant has submitted detailed engineering and architectural specifications,
including drawings,photographs,and photo-simulations of the means that will be employed to
protect abutting properties in both Salem and Lynn. Specifically:
o The Applicant conducted a balloon war whereby balloons were floated at strategic -
locations at the height of the proposed Lowe's building. Photographs taken from
numerous locations at ground level show sight impacts to be minimal from existing
residential neighborhoods. -
o A 15-foot high sound/screening wall will be constructed behind the proposed Lowe's
building; _
o The proposed sound/screening wall will serve as a noise and visual buffer between the
Lowe's building and loading docks and the abutting Lynn residential development;
o The proposed sound/screening wall,along with the existing and proposed landscaping
buffer between Lowe's and the abutting Lynn residential development,will serve to r
protect the health,safety,welfare and privacy of the residential development;
o The elimination of the existing Camp Lion driveway,a revision to the originally
submitted plans,has increased the buffer between the residential neighborhood in Lynn
and the proposed Lowe's building.
o The proposed Waunar[loading docks to the rear will be located over 400 feet from the
nearest residential abutter with significant differences in elevation and a continuing
landscape buffer,which will serve to protect the health,safety,welfare and privacy of
the abutting residents;
o Wahnart has agreed to limit truck delivenes to its building to the hours of 6:00 a.rn.to
12:00 a.m.,with no ovemight deliveries between 12:00 am.(midnight)and 6:00 a.m.
7.3.33—In the Business Park Development district,residential uses and associated
improvements cannot exceed 50%of the land area of the parcel, There are no residential uses
proposed.
4)7.3.8 Decision
• 7.3.8.1-The proposed planned unit development is in harmony with the purposes and intent of
this Ordinance and the master plan of the City of Salem and it will promote the propose of this
section by:
2
4
a) Providing for a comprehensive,planned approach to commercial,municipal,and
recreational development ofadjacent parcels on Highland Avenue:..The proposed PUD will
eliminate several existing curb cuts along Route 107 and coordinate traffic through a newly
created signalized drive into the site that will be utilized by each ofthe proposed uses.
b) In addition to providing vehicular access for the City of Salem water lower and the Camp
Lion outdoor recreational facility,the proposed PUD will coordinate utilities access to each
ofthe proposed uses.
c) Providing for appropriate economic development on an existing commercial corridor,
thereby generating tax revenue and creatingjobs.
7.3.81-The mixture ofuses in the planned unit development is determined to be sufficiently
advantageous to render it appropriate to depart from the normal requirements of the districts.
Specifically,the project incorporates a mixture ofcommercial,municipal,and recreational uses;
providing substantial public benefit.
• 7.3.8.3-The planned unit development would not result in a net negative environmental
impact specifically,
a)- The proposed PUD requires the cutting of existing trees and blasting on site,but also
includes the planting of over 1,000 new trees and shrubs on site.
b) The Applicant predicts that the Drainage Plans,as submitted,revised and reviewed,will -
improve the existing pre-development condition ofthe site and surrounding neighborhoods
in regard to drainage. The Applicant's engineering work is complete and thorough,and
their analysis and predictions are reasonable.
c) The Applicant presented information indicating that the project will have no adverse
impacts to the Spring Pend water supply in Peabody. Their analysis is reasonable and
satisfactorily addresses the concerns about potential contamination runoff being directed to
Spring Pond.
d) The proposed PUD incorporates Low Impact Development(LID)techniques for Walmart.
e) The proposed PUD incorporates energy-saving and greenhouse gas initiatives for the
proposed buildings.
The Planning Board hereby makes the following findings pertaining to the Wetlands and Flood Hazard
District Special Permit Application:
L The proposed uses comply in all respects with the Zoning Ordinance and particularly the PUD
section ofthe Ordinance.
2. Portions of the site at. located within the Wetlands District, as defined in the Zoning
Ordinance.
3. The proposed development does not include the storage ofsalt,chemicals or petroleum
products,other than those materials packaged,stored and handled for retail sale and stored
within the buildings and stored within the buildings and an above-ground double-walled fuel
tank with interstitial leak detection monitoring,that is attached to and serves as the fuel supply
for the emergency generator serving the Lowe's score.
4. The floor levels of areas to be occupied by workers will be four feet or more above the seasonal
high water table with no basement floor level being constructed in any building.
3
5. The project will be serviced by City sewer, There will be no on lot septic system.
6. The Drainage Plans and design,as submitted,will improve the water storage capacity of the site
and protect against pollution and contamination of such water supply and wetlands.
At a special meeting,of the PlanningBoard herd on January 13,2011,the Planning Board voted by a
vote of nine(9)in favor(Chutes Palen,.John Moustakis,Randy Clarke,Nadine Hanscom,Mark
George,Tim Kavanaugh,Tun Ready,Christine Sullivan,Helen Sides),and none(0)opposed to
approve the Site Plan Review;Planned Unit Development Special Permit,and Wetland and Flood
Hazard District Special Permit,subject to the following.conditions:
I.- Conformance with the Plan- . - -
Work shall conform to the plans entitled,"Planned Unit Development Application:Proposed
Lowe's Home Improvement Center,Wal-Mart and Meineke Expansions,City of Salem Water
Storage Tank,and Future Camp Lion Improvements;Highland Avenue,Salem,Massachusetts,"
preparedfor Kennedy Development Group,prepaied byTetra'Tech Rizzo and Bohler Engineering,
dated February 19,20 10 last revised October 18,2010,and page C-2,Site Plan,and page C-5,
Landscape Plan,last revised December 15,2010;and the plan entitled"Proposed Screening Wall,
Salem,MA;'dated January 13,2011,showing additional planting on the south side of the site. _
2. Amendments.
Any amendments to the site plan shall be reviewed by the City Planner and if deemed necessary by
the City Planner,shall be brought to the Planning Board. Any waiver ofconditions contained
within shall require the approval ofthe Planning Board.
3, Construction Practices
All construction shall be earned out in accordance with the following conditions:
a. All provisions in the City of Salem's Code of Ordinance,Chapter 22,Noise Control,shall be -
strictly adhered to.
b. All reasonable action shall betaken to minimize the negative effects of construction on abutters.
.Advance notice shall be provided to all abutters in writing at least 72 hours prior to commencement
of th molition and construction 0f the project.-
c. Drilling and blasting shall be limited to Monday-Friday between 5:00 AM until 5:00 PM. There
shall berm drilling,blasting or rock hammering on Saturdays;Sundays,or holidays. Blasting shall
be undertaken in accordance with all local and state regulations.
d. All construction vehicles shall be cleaned prior to leaving the site so that they do not leave dirt
and/or debris on surrounding roadways as they leave the site,
e. All construction shall be performed in accordance with the Rules and Regulations of the
Planning Board,and in accordance with any and all rules,regulations and ordinances of the City of
Salem.
f. All construction vehicles left ovemight at the site,most be located completely on the site
g. All construction activities shall be in accordance with the"Salem Police Station Construction
Manaeemcm Plan'.
h. All sidewalks,roadways,utilities,landscaping,etc.damaged during construction shall be
replaced or repaired to their pre-construction condition,or better.
i. A Construction and Management Plan is to be submitted to the City Planner for appropriate
distribution to Salem deparmients and the City of Lynn.
4. Fire Department
4
a. All work shall comply with the requirements of the Salem Fire Department.The locations of all
fire hydrants shall be approved by the Fire Department prior to the issuance of ary building —
permit.
S. Building Inspector -
All work shall comply with the requirements of the Salem Building Inspector_
6. Board of Health
All work shall comply with the Board of Health decision and conditions dated October 13,2010:
a. The individual presenting the plan to the Board of Health must notify the Health Agent of
the name,address,and telephone number of the project(site)manager who will be on site
and directly responsible for the construction of the project.
b. If a DEP,tracking number is issued for this site under the Massachusetts Contingency Plan,
no structure shall be constructed until the Licensed Site Professional responsible for the site
meets the DEP standard's for the proposed use, -
_ c. A copy of the Licensed Asbestos Inspector's Report must be sent to the Health Agent.
d. A copy of the Demolition Notice sent to the DEP,Form H WPAO6,must be sent m the
Health Agent
e. The developer shall give the Health Agent a copy of the 21E report.
f. The developer shall adhere to a drainage plan as approved by the City Engineer.
g. The developer shall employ a licensed pesticide applicator to exterminate the area prior to
construction,demolition,and/or blasting and shall send a copy of the extemanator's invoice
to the Health Agent.
h. The developer shall maintain the area free from rodents throughout construction.
i. The developer shall submit to the Health Agent a written plan for dust control and street
sweeping which will occur during construction.
j. The developer shall submit to the Health Agent a written plan for containment and removal
of debris,vegetative waste,and unacceptable excavation material generated during
demolition and/or construction.
It. The Fire Department must approve the plan regarding access for fire fighting.
1. Noise levels from the resultant establishment(s)generated by operations,including but not
limited to refrigeration and heating,shall not increase the broadband sound level by more
than 10 dB(A)above the ambient levels measured at the prope¢y,line and as further
interpreted in the MA Departmeut of Environmental Protection noise pollution policy and
310 CMR 7.10.
5
an. The developer shall disclose in writing to the Health.Agent the origin of any fill material -
needed for the project.
n. The resultant establishment shall dispose of all waste materials resulting from its operation
in an environmentally sound matter as described to the Board of Health.
o. The drainage system for this project must be reviewed and approved by the Northeast
Mosquito Control and Wetlands Management District.
p. Proposed food establishments must have their plans reviewed by the Health Agent prior to
their build-out.
q. The developer shall notify the Health Agent when the project is complete for final
inspection and confirmation that above conditions have been met.
7. Utilities
a. Utility installation shall be reviewed and approved by the City Engineer prior to the issuance of
any Building Pernvt.The applicant shall have an engineer certify.die utility plans for review by
the City Engineer,prior to the issuance of any Building Pertrut.
b. All electrical utilities for the site shall be underground.
8. Department of Public Services
The applicant,his successors or assigns shall comply with all requirements of the Department of
Public Services.
9. Lighting
a.No light shall cast a glare onto adjacent parcels or adjacent rights of way.
b.A final lighting plan shall be submitted to me City Planner for review and approval prior to the
issuance of any building permit.
a After installation,lighting shall be reviewed and approved by the City Planner,prior to the
issuance of any Certificate of Occupancy.
10.HVAC
If an HVAC mit is located on the mofor site,it shall be visually screened. The method for
screening the unit shall be submitted to the City Planner for review and approval prior to
installation
11.Noise
HVAC units shall be sufficiently buffered and the applicant shall take steps to further mitigate
noise emanating from the J-IVAC units(s)if the Board of Health receives any complaints.
12. Landscaping
a. All landscaping shall be done in accordance with the approved set of plans;detailed landscaping
plan for the plan entitled"Proposed Scremirg Wall"dated January 13,2011,is to be submitted to
the City Planner for review and approval prior to issuance of any building permit
It. Maintenance of all landscaping shall be the responsibility of the applicant,his successors or
assigns.The applicant,his successors or assigns,shall guarantee all trees and shrubs for a two-(2)
year period.
6
G. Any,street trees removed as a result of construction shall be replaced.The location of the trees
shall be,approved-by the City Planner prior to replanting.
d.'Final completed landscaping shall be subject to approval by the City Planter prior to the
issuance of a Certificate of Occupancy.
13. Maintenance:
a. Refuse removal,recycling,ground maintenance and snow removal shall be the responsibility of
the developei;his successors or assigns.
b. Warm snow in excess of snow storage areas on the site shall be removed off site.
13. As-built Plaus
a, As-built Plans,stamped by a Registered Professional Engineer,shall be submitted to the
Department of Planning and Community Development and Department of Public Services prior to
the issuance of any Certificate of Occupancy.
b. The As-Built plans shall be submitted to the City Engineer in electronic file format suitable for
the City's use and approved by the City Engineer,prior to the issuance of my Certificate of
Occupancy:;;';_,
c. A completedtie card,a blank copy(available at the Engineering Department)and a certification
signed'and-Stamtied by the design engineer,stating that the work was completed m substantial
compliance;with the design drawing must be submitted to the City Engineer prior to the issuance of
any Certificate of Occupancy;as well as,any subsequent requirements by the City Engineer.
15.violations
Violations of any condition contained herein shall result inrevocation of this permit by the Planning
Board,unless the violation of such condition is waived by a majority vote of the Planning Board.
16.Special Conditions:
1. Traffic
a Applicant agrees to provide up to$75,000 to MassDOT to undertake a study for the data
collection„analysis and conceptual design of three intersections on Route 107 in Salem for the
purpose of identifying alternatives for traffic mitigation for the intersections at Swampscott
Road,Marlborough Road/Trader's Way,and Pep Boys/Market Basket Plaza Driveways. (See
Exhibit B.) Furtber,the applicant agrees to provide$17;000 to the City of Salem for traffic
engineering peer review related to this study.Said fords to be provided to MassDOT and the
City of Salem,respectively,prior to issuance of my building permit.
b. Applicant agrees to design and implement an exclusive right-tura lane on the Wester
Avenue southbound approach to Fays Avenue in Lynn,subject to the approval of MassDOT. In
addition,applicant will replace the existing traffic signal equipment and have traffic signal
timing changed to increase the amount of"green time"provided to the Westem Avenue
approaches during each signal cycle,subject to the approval of MassDOT. Applicant is to
coordinate with/obta;n necessary approvals from MassDOT.
u It is noted that as a potential alternative to address traffic concerns identified in the City.'
Lynn,the applicant is proposing a two-way left hum lane on Wester Avenue from Buchanan
Circle to(approximately)the current location of the Camp Lion driveway. This reference is
included herein to acknowledge that this alternative could be a requirement of MassDOT as part
of the NEPA review process. It is not a condition of approval of the Salem Planning Board.
7
d. All traffic and roadway improvements shall be implemented as approved by the State prior
to the issuance of any Certificate of Occupancy. -
e. Lowe's and Walmart we required to each join the North Shore Transportation Management
Association(TMA)for a minimum period ofthree'years.The cost for suchmembership,shall be
basedonrates in effect at the time of this approval,Payment for the three year membership to
be made prior to the issuance of any Certificate of Occupancy. - . ..
2. Stormwater Management
a Applicant to inspect existing stbrmwater management system within the limits of the
proposed Highland Avenue improvemenis during construction to identify any catch basins,
madioles,.or stormwater pipes that do not appear to be functioning properly:;'Catch basins,
manholes,w l stormwater pipes found to be in need of cleaning,repair,or replacement or_
that differ from the conditions identified on the existing conditions survey.o, smaller
diameter pipe than shown on the plans)we to be reported to the Salem City Engineer and.
lvfassDOT prior to my action being taken. Said catch basins,manholes,or stomnwaterpipes
will be cleaned,repaired,or replaced subject to the approval ofMassDOT as:part of the
project improvements: Evaluation and Weaning to specifically include the catch basin at the
outlet to the wetland located at.the southeast property boundary,which is located
approximately ten feet off Highland Avenue: - -
b. Future developments at the Camp Lion facility must not exceed the impervious areas shown
an the approved plans in order to meet Massachusetts.Stotmwater guidelines. Furthermore,
development of the camp site shall include stormwater treatment measures as stated in the
project Drainage Report,dated November 23,2010. ,
u Applicant is to submit an Operation mid Management Plan for the stonnwater management
system;describing the frequency of cleaning(at least twice per year),and maintenance of
the system,clearly defining the responsible aany for maintenance,prior to the issuance of
any building permit.
d. The applicant is to contribute 560,000 prior to issuance of any Certificate of Occupancy to
the City of Lynn to be used by the City of Lynn toward drainage improvements,specifically
including repair or replacement of a stormwater pipe identified in the Buchanan Circle
neighborhood that is functioning improperly and contributing to flooding conditions in that
neighborhood,as identified in Paragraph 28 of Exhibit B attached hereto.
3. Deliveries to Walmart to be limited to the time penod between 6 a.m.and 12 a.m.(midnight)
consistent with current store operations.
4. Details,specifications,and design calculations for the retaining wall at Lowe's,including color,to
be submitted to the City Engineer and City Planner for review and approval prior to stare of
construction.
5. Specifications for the sound bartier/screening wall,including color,located to the rear of the
Lowe's store,are to be submitted to City Planner for review and approval prior to start of
construction
_ 8
6. A sidewalk is to be constructed along Highland Avenue from the northernmost site driveway to
connect to the access driveway to facilitate a safer walking environment for pedesmares. The
design of the sidewalk and pedestrian ramps to be ADA compliant. Itis noted that the new
signalized intersection at the site driveway will include a pedestrian phase to enable pedestrians to -
safely cross. The crosswalk will be moved from its current location,as recommended by
MassDOT,to north of the access driveway. The sidewalk and new location of the crosswalk to be
shown on revised plans., Revised pians are to be submitted to the City Planner for review and
approval prior to issuance of building uemit for Walmart.
7. The applicant will contribute 05,000 to the City of Salem toward the cost of improvements to the
sewer pump station located on Highland Avenue in boat of the site prior to the issuance of any
building permit.
S. A bus pull off,shelter and waiting area shallbe incorporated into the site plan on Highland Avenue
in front of the Walmart project site for southbound buses.The pull off or tumout area for the bus,
which is the.sta i of the right-turn lane into the site,shall be wide enoughson to allow all traffic
lanes on.Highland Avenue to continuously flow once the bus comes to a slop.The applicant shall
work with the MBTA-and MassDOT to obtain the necessary approvals,easements,etc.for
construction. Upon State approval(s);a specific site plan shall be submitted for review and
approval by the City Planner showing proposed amenities,such as a shelter,cart corral,and trash
receptacle as well assay changes to the parking field or landscaping of Wahnart,if necessary. Bus
Put]off and associated amenities to be constructed prior to the issuance'of any Certificate of
Occupancy,assuming that all necessary State approvals are in place in a timely fashion,however in
no event will aeon-issuance of approvals by the State delay the issuance of any Certificate of
Occupancy by the City.
9. Refuse removal,recycling,ground maintenance and snow removalshall be the responsibility of the
applicant,his successors or assigns.
10.The applicant,his successors or assigns shall be responsible for the maintenance and snowplowing
of the entrance drive connecting to Highland Avenue,
11.A Clerk of the Works will be required to oversee the construction work. The Clerk of the Works
shall be provided by the.City,at the expense of the applicant,his successors or assigns.
I hereby certify,that a copy ofthis decision and plans has been filed with the City Clerk and copies are
on file with the Planning Board. The Special Permit shall not take effect until a copy of this decision
bearing the certification ofthe City Clerk that.twenty(20)days have elapsed and no appeal has been
filed or that if such appeal has been filed,and it has been dismissed or denied,is recorded in the Essex
South Registry of Deeds and is indexed under the name of the owner ofrccord is recorded on the
owners Certificate of Title. The owner or applicant,his successors or assigns,shall pay the fee for
recording or registering.
Charles M.Pu]eo,Chair
9
EX=IT A
TRAFFIC
The following findings include improvements proposed by the Applicant;all of which are
subject to approval by the Massachusetts Department of Transportation(MassDOT),who
has jurisdiction over these applicable portionsof Route 107 (Highland and Western
Avenues)in both Salem and Lynn.
1. The existing main site driveway into Walmart will be closed.
2. A new site driveway providing full aceass/egress under traffic signal control with
optimized phasings and timings for the entire project will be provided.
3. The north site driveway into Walmart will be modified to provide proper curb
rade to current design standards. -
4. Additional ruining lanes and pedestrian accommodations at the new main
driveway will be provided.
5. Improvements to the Highland Avenue southbound merge area into the City of
Lynn will be provided by realigning the roadway,through the use of pavement
markings,and posted signs.
6. Western Avenue at Fays Avenue in Lynn will be slightly widened and re-striped
on the southbound approach to provide a through lane and an exclusive right-tum
lane.
7. New traffic signal equipment with optimized phasings and timings will be
installed at the Westem Avenue/Fays Avenue intersection.
6. Western Avenue between Buchanan Circle and the existing Camp Lion driveway
will be re-striped to provide a two-way lett-tum lane for left thous to/from the
residential streets.
9. The City of Salem Planning Board retained BETA Group, hm.("BETA") as its
neer review consultant on ffie traffic impacts and improvements associated with
this project as proposed by the Applicant
10. BETA reviewed,in detail,the"Traffic Impact and.Access Study for Submission
with EENF"proposed by the Applicant and prepared by the Applicant's traffic
consultant,Greenman-Pedersen,Ina
11. BETA prepared a detailed comment letter, dated May 5, 2010, to the Traffic
Study submitted by the Applicant.
Exhibit A Page 1 of 5
12. In its comm eats and remormendations,BETA recommended,among other things,
that the following actions be undertaken by the Applicant;',:'
a. Expand the study area alone Route 107 further south into Lynn and further
nouth into Salem;,
b. Provide additional automatic traffic_. recorder (ATA) counts along
Highland Avenue adjacent to the site to the City;
c. Evaluate the sight distances at the Highland Avenue/Camp Lion driveway;
d. Clarify, calculations concerning Minimum Required Stopping Sight
Distance; .
C. Revise the trip generation for the weekday AM peak hour. -
13. In a Technical Memorandum dated September 2,2010,GPI submitted a Response
to Comments memorandum that addressed each issue and recommendation made
by BETA,including implementation of the substantially expanded study area.
14. The City of Salem Department of Planning and Community Development
coordinated a meeting.with MassDOT and invited both the Applicant acrd BETA
to attend to discuss the Applicant's proposed improvements on Route 107,a DOT
jurisdiction roadway("DOT Meeting"). -
15. Subsequent to the DOT Meeting, the Applicant,BETA and the Deparhnent of
Planning and Community Development reported to the Planning Board, at its
regularly scheduled meeting on January 6, 2011, that an engineering corridor
study along Route 107 between Swampscott Road and the Pep Boys traffic signal
was recommended by DOT, to be fiuuded by the Applicant, to help determine
futureimprovements to Route t 07.
16. The Applicant presented its proposed improvements, as revised,to the Plauumg
Board on January 6, 2011, including a ti o-way left-tura lane to be constructed
south of the Highland Avenue merge area, from the existing Camp Lion
driveway,along Western Avenue to Buchanan Circle in Lymr.
17. Extensive comments have been reserved by the Planning Board from the public,
including many residents of the abutting Lynn neighborhoods, concerning the
existing conditions along Route 107 between Pays Avenue and the project site.
15. All conditions, recommendations,revisions and changes to Route 107 proposed
by the Applicant and/or the Planning Board are subject to the approval of DOT
for this state highway.
Exhibit A Page 2 of 5
19. The Applicant will submit to ongoing DOT jurisdiction in the state-required
MEPA and MassDOT Section 61 processes for this project.
DRAINAGE
20. The-Applicam has submitted. an extensive Drainage Report entitled "Drainage
Report for proposed Planned Unit Development," dazed November 23, 2010,.
prepared by Tetra Tech Rizzo and Bobler Engineering, as well as plans in the
original Planned Unit Development ('PUD") Application and subsequent
Wetlands Flood Hazard District Special Permit Application.
21. The documents submitted addressed,among other things,the following:
- Intermittent stream reconstruction;
Cross-sections of the existing stream;
Pre-development Conditions Watershed Plan;
Post-development Conditions Watershed Plan;
- Demolition Plan;
- Grading and Drainage Plan;
- Utihry Plan. -
22. The City of Salem retained the services of New England Civil Engineering Corp.
("NECB") for Peer Review Services to be provided to the Planning Board on
engineering and drainage matters for the project.
23. Upon its review of the submitted materials, as well as meetings with the
Applicant's engineers, NECE submitted extensive comments and
recommendations to the Board and Applicant on two separate occasions,
including,but not limited to the following areas:
a. Soils! Submittal of logs for test pits,borings and probes,for review.
b. Impervious Area. Applicant to submit acreage with itemized calculations.
C. Roof Runoff .Applicant to provide additional information on slope and
break lines of roof to confirm runoff to be collected.
d. TSS Removal. Applicant to revise TSS removal tables to reflect a
different method of street sweeping(a more conservative removal rate).
e. Water Ouality Structures and Sizing.
f Hydraulic Cantunv of Pipes.
Exhibit A Page 3 of 5
g. Existing Drainage. Identify condition of structures in Route 107,expand
study area further into Lynn.
It Maintenance.
1. Subsurface Infiltration/Low Impact Development. Applicant to evaluate
alternatives.
I. Modifications to the existing drainage inlet som ure located along the
souLSeast property boundary to reduce the likelihood ofclogging.
k. Existing Sanitary Sewer Pump Station. Coordination with City Engineer
required.
24. Through a series of meetings with NBCE and presentation and submittals to the
Planning Board, the Applicant has addressed each of the issues raisedby the
Board and its consultant,NECE.
25. Extensive public comment has been received by the Board during the public
hearings concerning the existing drainage and runoff conditions of the site and the
abutting neighborhoods'in Lynn.
26. Based on public comments from neighbors and actual observation of the site area,.
the Board finds that some flooding already occurs onto Route 107 and into the
Buchanan Circle neighborhood in Lynn.
27. The Board received extensive comment from various City of Lynn officials,
including officials from Lynn Water & Sewer Commission, confirming the
flooding that counts in the existing pre-development condition.
26. Phe Applicant, working with staff from Lyrm Water & Sewer Commission,
identified a stormwater pipe in the Buchanan Circle neighborhood that was
functioning improperly and contributing to the flooding conditions.
29. The Applicant presented information indicating that the project will have no
adverse impacts to the Spring Pond water supply in Peabody. This was reviewed
by NECE,which found their analysis to be reasonable and addressed the concerns
about potential contaminated runoffbeing directed to Spring Pond.
30. The Applicant, at the suggestion of the Board and NECE, incorporated "low
impact development" techniques in the form of above and below ground
stomrw•ater infiltration areas for the Wahnart store.
31. The applicant predicts that the Drainage Plans, as submitted, revised and
reviewed, will improve the existing,pre-development condition of the site and
Exhibit A Page 4 of 5
surrounding neighborhoods. NECE ads that the applicant's engineering work is
complete and thorough,and their analysis and predictions are reasonable.
Exhibit A Page 5 of 5
EXMBIT B
Draft Scope of Work
Data Collection,Analysis and Conceptual Design of Alternatives:. -
Three Intersections on Route 107,Salem,Massachusetts
BACKGROUND
MassDOT and the City of Salem are mterested in operational and'potormal geometric -
improvements(hat would mitigate existingconditions and potential future impacts from the
new Lowe's and expansion of W ahnan in Salem south of the three locations,lust north of the
Lyan/Salem City Line.
This document outlines a scope of services to perform a traffic study for three signalized
intersections on Route 107(Highland Avenue)in Salem,Massachusetts,as follows:
• Swampscott Road
• Marlborough Road/Traders Way
• Pep Boys/Market Basket Plaza Driveways
The three intersections will be analyzed for operational issues(delays{traffic signal design,
and other deficiencies)and potential improvements requiring expansion into the existing
right-of-way or beyond it.Of particular interest are the first two intersections',which operate
in tandem as a pair carrying north-south volume between Swampscott Road and
Marlborough Road in both directions.This tandem causes a shifting of traffic within a
limited roadway segment on Route 107 causing merging and diverging of traffic with
associated delays.and operational inefficiencies.In the case of geometric improvements at
this segment of Route 107 to correct for this problem,MassDOT is interested in developing
and reviewing conceptual AutoCAD plans drawn over existing layout plans.
OBJECTIVE
This study will identify traffic operational and geometric improvements to address
operational problems at three Salem signalized intersections,including developing
conceptual plans and identifying right-of-way requirements for the alternatives that include
geometric improvements.
WORK DESCRIPTION
a,
Task 1 Perform Field Reconnaissance and Collect/Gather Data
Detailed data and information pertaining to each location will be collected.This will
involve visiting each site and inventorying all relevant gcomettic,land use,and signal
features.The three locations serve primarily Route 107 commuter trips and the shopping
plaza driveways,which may have different peaking characteristics.For this reason,data
collection will be done for weekday AM and PM peak hours and for Saturday midday,In
addition;data may have to be collected for the intersection of one ofthe plaza's
driveways with Route 107.Data will include:
• 2-how manual turning movement counts(MTMCs)during the AM and PM peak
periods and midday(10 AM to 2 PM)Saturday
• 24-hourAutomatic Recorder Counts(ATRs)(to be requested from MassDOT
Highway Division)at nine locations during three weekdays and a typical Saturday
• Bicycle counts -
•. PedesMan counts
• Transit vehicle counts
• Signal timing data(MassDOT to provide bra&Sc signal plans to review existing
phases,timing lengths).
• Queue lengths
• Crash:data,including copies of crash reports to develop crash diagrams
• Origin-destination pattern for Swampscott Road and Marlborough Road traffic by
performing a short license plate or other form of survey
• Geometric data(layout plans,lanes,curb cuts,sidewalks,crosswalks,pedestrian
buttons,transit anitsmies)
• Land use/zoning information
• lursdictional/admuustrative system responsibilities
Products of Task I
Traffic flow diagrams,summaries of count,geometric,signal,and queue information,
origin-destination data and analysis,safety analysis and crash diagrams,as well as
land use and jurisdictional information,for the three intersections
Task 2 Evaluate and Analyze Intersections
Each intersection will be analyzed for capacity and delays analysis in order to deterrtiine
the operational level of service at each intersection.Particular attention will be given to
the evaluation of existing pedestrian signal phases,if any,or the need for them.Also,the
origin-destination(north-south)traffic pattcm between Swampscott Road and
Marlborough Road will be identified in order to design effective traffic signal plans and
geometric improvements at the two intersections and the Route 107 segment between
them.Analysis of crash diagrams will reveal the type of safety concerns that exist in the
vicinity of the three intersections and the operational or geometric deficiencies that may
be lacking in in that area.Field observations will yield a full understanding of the
Mass OTOfSceuf Trensport.dc,i Planning Page3of4 12/23/10
operations of vehicles,bicycles,and pedestrians at each location.In addition to field
observations,right-of-way plans will be reviewed,in case any minor widening or
additional turning lanes arc required.
Products of Task 2
Reviews of traffic signal plans and right-of-way plans;summaries of existing
operational level of service for typical weekday AM and PM peak hours and for
midday Samoday,including delays and queues by lane group;assessment of safety
issues;assessment of north-south traffic volume pattern using the Route 107 segment
between Swampscott Road and Marlborough Road
Task 3 Develop Improvement Alternatives and Associated Costs
Based on the evaluation and analyses,potential improvement alternatives will be
developed.Potential improvements would include retuning,traffic signal design,
geometric improvements,traffic management,channelization,access management,
arterial coordination of the three signalized intersections,and assessment of traffic
control equipment for potential updates,and better processing of bus,pedestrian,and
bicycle traffic.The cost of each improvement option will be evaluated(excluding right-
. _ of-way costs.)Conceptual geometric improvements will be drawn on existing layout
plans using AutoCAD.Analysis will be performed with 2016(No-Build and Build)
volumes,including Wal-Mart and Lowe's generated traffic upon occupancy. In addition
to Wal-Mart and Lowe's Mps,the 5-year growth rate will take into account an
appropriate background growth rate.
Productof Task3
A summary of alternative improvements and associated present and future year
assessment;conceptual AutoCAD designs of potential geometric improvements;and
construction implementation costs,excluding right-of-way purchase,if any.
Task4 Recommend Improvements
Based on the evaluation and analysis performed in Task 3,short-and long-teen measures
to improve operations at the three intersections will be recorrunended
Product of Task 4
.A summary of recommended operational improvements for the three intersections
Task 5 Advisory Group Input
Study will include seeking advisory group input via presentations at meetings e-mail
exchanges,and telephone forms of interaction.The advisory group will consist of
MausDOTOTce.fTassponwion Planing Pate3of4 i2MW
MassDOT representatives 5'om Office of Transportation planning,Highway Division,
District 4,and others;City of Salem officials,and City of Salem consultants.
Product of Task S
Preparation for meetings,including presentations,and other forms of interaction with
advisory group members
Task Document All Findings and Recommendations
Staff will documem all study tasks in a technical memorandum for MassDOT's review.
Product of Task 6
A technical memorandum documenting Tasks I through 5
ESTIMATED SCHEDULE
It is estimated that this proiect will be completed 14 weeks after the notice to proceed is
received.
TRUE COPY ATTEST
htassDOT Office ofTranspot=on Plasuung Page4 of4 1223/10
G6 99
Exhibit B
AFFIDAVIT OR KATERINA PANAGIOTAIQS
My name is Katerina Panagiotakis of and I havepersonal knowledge of the following
facts
1. I appeared at many of the hearings before the City of Salem Planning Board to speak
in opposition the proposed commercial development project.
2. During my appearance at one of these hearings in or around fall of 2010,Salem
Planning Board member Tim Ready had occasion to speak with Calvin Anderson and
me in a hallway following the meeting.
3. At the conclusion of the hearing,Mr.Ready motioned with his finger that be would
line to speak with me privately in the hallway.
4. 'Ne subsequently had a conversation outside of the earshot of those appearing and
participating in the hearing,including the developer and its counsel
5. Mr.Ready requested that I change my opposition to the project and instead support
the project,because I would not win."
6. Mr.Ready stated that"You are very good in what you say and are very persistent,but
will not win on this, It is better if you ask them what they[the developer]or this
project can do for you instead."
7. Mr.Ready indicated that the outcome was a foregone conclusion.
S. This conversation occurred prior to foe conclusion of all public hearings relating to
the project.
9. I left that conversation with Mr.Ready certain that Mr.Ready and the Salem
Planning Board had already determined that the project was going to be approved.
Signed under the pains and penalties of perjury this the day of February,2011. -
Katerma Papagim s
i
Exhibit 6699
�XN/Rr r
AFFIDAVIT OF CALVIN ANDERSON
My name is Calvin Anderson of and 1 have personal knowledge of the following facts.
1. I appeared at many of the hearings before the City of Salem Plarming Board to speak
in opposition the proposed commercial development project. -
2. During my appearance at one ofthese hearings in or around December,2010,Salem
Planning Board member Tim Ready had occasion to speak with Ms.Katerina
Panagiotakis and me in a hallway following the meeting.
3. The three ofus subsequently had a conversation outside of the earshot of those
appearing and participating in the hewing,including the developer and its counsel.
4. Mr.Ready stated that he recognized our commitment and passion for our opposing
view.
5. Nu.Ready recommended that we would be best served by not opposing the subject
project as the project was going to be ultimately approved by the Salem Planning
Board.
6. Mr.Ready indicated that the outcome was a foregone conclusion.
7. NIr Ready stated that the project would proceed ahead"one way or another."
8. Mr.Ready recommended that rather than opposing the project,we should each
attempt to elicit concessions and benefits iron the developer on behalf of the City of
Lynn and the neighbors to the project.
9. Mr.Ready stated that those in opposition would be better off"asking what'they'[the
developer]could do for you."
10.Mi.Ready indicated that we should back offand see what accommodations to the
plan we could receive from the developer.
11.This conversation occurred prior to the conclusion of all publie hearings relating to
the project.
12,(left that conversation with Mr,Ready certain that Mu.Ready and the Salem
Planning Board had already determined that the prolect was going to be approved. I,
Signed under the pains and penalties of perjury this the'ec'day if Feb ary,2011,
t`
Calvin lerson
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CERTIFICATE OF SERVICE
1,George S.Markopoulos,hereby certify that I did serve the within document of the
following:
1. First Amended Complaint and Jury Demand.
by delivering in hand the original to the court and a copy of the same,postage prepaid,to
the counsel of record and to the Defendants.
I have also this day delivered in hand a copy of the same to Cheryl A.Lapointe,City
Clerk of the City of Salem.
Signed under the puns and penalties of perjury.
;�
George S.Markopoulos
Dated: February 10,2011
3�� �ID
MIIAMAS.ACHUSETTS RECEIVED MITA Member Services
B SEo C ¢
MEE MBER BER ECEI12 Gill Street-Suite 1600
DRIVEN Woburn, MA 01801-1728
MAR 03 2011 TEL(800)526-6442
FAX(781)376-9907
" DEPT.OF PLANNING A www.emiia.org
CONI MMITY DEVELOPMENT
February 23, 2011
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Ms. Elizabeth M. Rennard, Esq.
Salem City Solicitor
Salem City Hall
93 Washington Street
Salem, MA 01970
Re: Stilian, et al. (City of Lynn) v. Puleo, et al. (City of Salem)
Essex Superior Court, Civil Action No. ESCV2011-00222A
Dear Ms. Rennard:
Please allow this letter to acknowledge our receipt of the complaint filed by the
individually named members of the City of Lynn Planning Board and the City of Lynn
(collectively"Plaintiffs") in the Essex Superior Court, Civil Action No. ESCV2011-
00222A, as amended ("Amended Complaint") against the members of the City of Salem
Planning Board (collectively`Board"), who have been named only in their official
capacities as Board members, and the City of Salem ("City") as well as Kennedy
Development Group, Inc. (the"Developer"). The Plaintiffs allege various violations of
M.G.L. c. 40A as well as the City's Zone [sic] Ordinance in relation to a proposed
commercial development ("Project") to be located on Highland Avenue/Route 107 near
the Salem/Lynn border. In addition to the alleged statutory violations, the Plaintiffs also
allege due process violations. The Plaintiffs seek declaratory and injunctive relief
together with an award of attorneys' fees, costs, and expenses. It is unclear whether the
Plaintiffs are alleging any monetary damages.
MIIA Property and Casualty Group, Inc. ("MIIA") provides Public Officials
Liability coverage to the City. We have closely examined the applicable policy to
determine if there is insurance coverage available to the Board and/or the City for
allegations contained in the Amended Complaint. For the reasons further explained
below, MIIA will provide the Board and the City with a defense in the above-captioned
matter under a full reservation of its rights to later disclaim coverage. In this regard,
MIIA specifically reserves its right to withdraw its defense of this matter in the event that
it is determined that the allegations raised in the Amended Complaint are not covered
and/or are excluded under the Public Officials Liability Policy.
(r r
�\ '"
An Interlocal Service of the Massachuse`t-ts Municipal Association
i
In coming to our determination, we have reviewed the allegations in the Amended
Complaint and compared them to the coverage afforded under the Public Officials
Liability Policy issued by MIIA to the City for the applicable time periods. Below we
have outlined the allegations in the Amended Complaint.
The Plaintiffs filed the original Complaint pursuant to M.G.L. c. 40A §17 on
February 7, 2011. According to the Civil Action Cover Sheet filed therewith, this
proceeding is a Zoning Appeal under c. 40A. The Plaintiffs filed a First Amended
Complaint on February 10, 2011.
According to the Amended Complaint, sometime in 2010,the Developer filed an
application with the Board proposing to erect a new Lowe's Home Improvement store, a
larger Walmart to replace that which presently exists, a larger Meineke center and an
improved Camp Lion. The location of this Project was to include lots number 440, 460,
462 and 488 on Highland Avenue/Route 107 near the City of Lynn border. The
application also included the Developer's agreement to build a water tank for the benefit
of the City's residents. It is the Plaintiffs' contention that the City had begun negotiations
with the Developer as early as 2008 and that the mayor and the Developer had entered
into "secret" negotiations for a land swap by which the Developer agreed to build the
subject water tower. The water tower is needed by the City to facilitate construction of
hundreds of new homes in part by reducing the cost of said construction, the construction
of which the City wanted to promote. The mayor and other City officials are alleged to
have spoken in favor of the Project even before the application was submitted to the
Board. Furthermore, as the Project site was not previously zoned for commercial
development, the mayor, who is the appointing authority for members of the Board, is
alleged to have requested the City to initiate zoning changes to allow the Project as a
matter of right. The City adopted such a zoning change(s).
Approximately sixteen (16)public hearings were held regarding the Developer's
application, the first of which was on March 18, 2010 and the last of which was on
January 3, 2011. The June 17, 2010 public hearing addressed, in part, Zoning Ordinance
Section 8.1 which regards Wetlands and Flood Hazard Overlay District. Prior to the
conclusion of the public hearings, Board member Tim Ready allegedly spoke with two
property abutters who had attended hearings in opposition to the Project. Mr. Ready
asked the abutters for their support saying that they would not win and indicating the
outcome of the application and hearings was a foregone conclusion. Mr. Ready
suggested that the abutters try to elicit concessions in their favor rather than continue to
oppose the Project.
Ultimately, on January 13, 2011, the Board, in alleged contradiction of the Zoning
Ordinance and the City's Master Plan, found that the Project met with the provisions of
Zoning Ordinance 7.3, Planned Unit Development, and approved the site review as well
as the necessary special permits. The special permits contained several conditions. The
Developer was required to expend $100,000 for traffic mitigation studies for the City..
Additionally, the permit(s) imposed conditions relative to traffic design and intersections
located solely in the City of Lynn. Finally, the conditions required finances to alleviate
M I IAM aE ,
the drainage and storm water issues in both the City and the City of Lynn, with greater
funds being required for the City. The Board filed its decision with the City Clerk on
January 18, 2011.
The Plaintiffs allege that the Board failed to provide the statutorily required notice
to abutters and parties of interest under c. 40A prior to enacting the subject zoning
change(s). The City of Lynn alleges it has been aggrieved by the Board's decision in
numerous respects.
Traffic The Plaintiffs allege that the only public ingress/egress for the Project will
be on Route 107/Highland Avenue which is described alternately as a residential street
shared by the City and Lynn and a state highway which connects the City and Lynn.
Route 107 is a four lane road which narrows to a two lane road near the border between
the cities. The Plaintiffs allege there will be a significant increase in traffic as a result of
this Project which threatens the health, safety, welfare and privacy of Lynn and its
residents. Though the City required the Developer to pay for traffic mitigation studies for
the City, it made no requirement that the Developer conduct similar studies regarding
Lynn even though the negative impact to Lynn will allegedly be far greater. The City
failed to seek input from Lynn regarding potential traffic impacts and mitigation.
Furthermore, the City imposed conditions on the Developer in relation to traffic
design and intersections in Lynn without any input from Lynn. The Plaintiffs allege said
condition would not promote the health, safety and welfare of Lynn residents and,
together with the Project as a whole, will have adverse financial or other implications
regarding traffic, drainage and public safety.
Regarding anticipated deliveries to the new stores, the hours of deliveries
permitted by the City and the resulting noise will violate noise ordinances for Lynn.
Flooding/Drainage
The Plaintiffs allege that the residents of Lynn who own land abutting the Project
site already experience flooding and drainage runoff from the subject site. The Project is
expected to exacerbate the current drainage issues. Nevertheless, the City allocated more
funds to alleviating drainage and storm water issues in the City than for Lynn whose
residents are far more impacted.
Apple Hills Subdivision
Belleaire Avenue in Lynn immediately abuts the Project site. This is a dead end,
"paper" street which cannot exceed one thousand feet in length in order to conform to
Lynn's Planning Board Rules and Regulations. According to the Amended Complaint,
"[fjailure to complete the roadway would require this roadway to be further extended
beyond the thousand foot length required in the Rules and Regulations necessitating a
waiver form the Planning Board." This allegation is vague but implies the Project will
somehow affect this road and risks putting this public way in violation of Lynn's Rules
M'IAoE�E� w�er..a
l
and Regulations. Somewhat related, the Plaintiffs allege that Lynn had previously
approved a sixteen (16) lot subdivision in the vicinity of this road for which they have a
performance guarantee in the amount of$227,325 for the proper and timely completion.
According to the allegations,the Project will impact the ability of the Lynn developer's
ability to sell these lots and complete the project timely.
In addition, the Plaintiffs allege that, not only will the Project not yield any tax
revenue for Lynn, but the residential properties in the vicinity of the site will likely lose
value. The Project will significantly injure the health, welfare, privacy and safety of
abutters including those on Belleaire Avenue.
Noise and Visual Impacts
The proposed 15 foot high sound/screening wall will be insufficient to protect the
health, safety, welfare and privacy of abutters and will be insufficient to alleviate or
eliminate the expected increased noise and significant, negative visual impacts. Balloon
tests employed to predict the site line and visual impacts of the Project were allegedly
flawed and not adequately publicized. Neither Lynn nor its developer were present to
view these tests.
Procedurally, the Plaintiffs allege the Project does not comply with the Salem
Master Plan or good zoning practice according to §7.3.1 of the Zoning Ordinance, nor
does it meet the minimum lot size requirements set forth in §7.3.2. It is not compatible
with the surrounding area and abutting conservation land in Lynn. The Project will result
in the loss of open space and nature trails and will adversely impact conservation land
and wetlands. It will require significant removal of trees and shrubs near the Lynn line
which, together with significant blasting, will threaten and injure the health, safety,
welfare and privacy of Lynn and its residents. Nor is it in harmony with the purpose and
intent of the Zoning Ordinance and Master Plan. The Developer has failed to
demonstrate how it would protect abutting property and the health, welfare, and privacy
enjoyed thereon pursuant to §7.3.3(2).
The Plaintiffs allege the Board's decision was based on a legally untenable
interpretation of the Zoning Ordinance and Master Plan. It was based on legally
untenable grounds, whimsical, capricious or arbitrary, was an abuse of discretion by the
Board, has insubstantial basis in fact and fails to give a requisite statement of reasons or
make findings of facts to support the issuance of special permits. The Board exceeded its
authority when it wrongfully applied the provisions of the General Laws, the City's
Zoning Ordinance and the Master Plan.
The Amended Complaint sets forth eight (8) claims, as follows:
Count I—the Decision is arbitrary and capricious in violation of c. 40A §17. It is
not supported by the evidence and exceeds the Board's authority
M"Aoa.E. s a
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Count II—the Decision lacks specific findings as required by the Zoning
Ordinance, the Master Plan and c. 40A
Count III—the amendment(s) to the Zoning Ordinance violated c. 40A §5.
Count IV—the amendment(s)to the Zoning Ordinance constitutes unlawful spot
zoning.
Count V—Chairman Puleo's participation in the petition and control of the debate
was a violation of M.G.L. c. 268A. Chairman Puleo owns a restaurant
and a bank which are the nearest such establishments to the Project.
Given his personal financial interest and potential increased patronage
to his establishments if this Project goes forward, he should have
recused himself. The mayor's determination that Chairman Puleo's
financial interest would not affect his impartiality was in error.
Count VI—Violation of Open Meeting Law. The City failed to comply with
statutory notice provisions. Further, Mr. Ready's statements confirm
he had decided his position on the Project prior to the conclusion of the
public hearings.
Count VII—the Board lacks jurisdiction to issue the condition relative to land
owned by and within Lynn
Count VIII—Violation of Due Process Rights. The City had negotiated with the
developer for several years prior to the filing of the application and had
negotiated a land swap prior to any petitions being filed as well as
negotiating the construction of a water tower. The Board adopted the
amendments to the Zoning Ordinance solely for the Project.
Furthermore, the Plaintiffs allege certain members of the Board are
"hold-over" appointments whose terms had expired prior to the subject
vote(s) and were not reappointed. The mayor was a vocal proponent of
the Project and actively campaigned and negotiated in relation to it.
The hearings and deliberations were predetermined, a sham to comply
with the Zoning Ordinance and c. 40A. Those who had signed petitions
and attended hearings in opposition to the Project were disregarded.
Evidence showed the application(s) did not comply with the Zoning
Ordinance or Master Plan.
The Plaintiffs' Amended Complaint seeks an order annulling the Board's January
18, 2011 decision to allow the Project to go forward and an order enjoining the City's
Building Department from issuing any building permits relating to the Project. It also
seeks attorney's fees, costs and expenses as well as other and further just and proper
relief.
M I I a
The Civil Action Cover Sheet filed with the Complaint states it is a Zoning
Appeal, and has crossed out any damages under the tort or contract area. Hence, while
the Plaintiffs have alleged a due process violation in Count VIII of the Amended
Complaint, it is unclear if they are seeking monetary damages associated with such a
claim.
In addressing MIIA's coverage obligations, we have reviewed the Amended
Complaint and compared the allegations to the terms and conditions of the MIIA Public
Officials Liability Policy with the City. Sterilite Corp. v. Continental Gas Co., 17 Mass.
App. Ct. 316, 318 (1983). Below we have referenced some of the more pertinent
portions of the Policy as they relate to our coverage position.
PUBLIC OFFICIALS LIABILITY POLICY
SECTION I—COVERAGE
PUBLIC OFFICIALS LIABILITY
1. Coverage Agreement
a. We will pay those sums that the insured becomes legally
obligated to pay as damages resulting from "claims"
against the insured by reason of"wrongful act(s)"to which
this coverage applies . . . . We will have the right and duty
to defend any "claim" or "suit" seeking those damages.
However, we will have no duty to defend any "claim" or
"suit" seeking damages to which this coverage does not
apply. We may, at our discretion, investigate any
"wrongful act" and, with your consent, settle any "claim"
or"suit" that may result. ...
2. Exclusions
This coverage does not apply to any "claim"made against the
insured:
C. For any damages arising out of the willful violation of any
federal, state, or local statute, ordinance, rule or regulation
committed by or with the knowledge and consent of any
insured.
M1IAl.e.ee a�e
k. For"claims' or"suits", or the portions thereof, seeking
relief or redress in any form other than monetary damages.
Nor shall we have any obligation to pay on behalf of the
insured any costs, fees including attorneys' fees, or
expenses which the insured becomes legally obligated to
pay as a result of such"claims" or"suits".
SECTION II—WHO IS AN INSURED
Each of the following is an insured:
1. You, the public entity named in item #1 of the Declarations.
2. Your past, present,and future executive officers, other elected,
appointed or employed officials, officially appointed members of
commissions, committees, agencies, boards or other units operated
under your jurisdiction and within an apportionment of your total
operating budget, while acting within the scope of their duties as
such.
However, none of the above shall include individual attomey(s)
appointed, hired or otherwise retained by you.
SECTION VII—DEFINITIONS
2. "Claim"means a demand or notice for monetary or non-monetary
relief, including summons, pleadings or legal documents filed or
served in connection with a"suit," or notice of the commencement
of a proceeding with the Massachusetts Commission Against
Discrimination, an arbitration proceeding or any other alternative
dispute resolution proceeding, in connection with alleged damages
because of"wrongful act(s)" by any insured to which this coverage
applies. But"claim" does not mean any "administrative hearing",
or any labor or grievance arbitration or other proceeding that is
subject to a collective bargaining agreement.
5. "Suit"means a civil proceeding in which damages because of
"wrongful act(s)" to which this coverage applies are alleged . . . .
��Am....
1r1 ...
8. "Wrongful act means any actual or alleged error, misstatement,
misleading statement, act or omission, neglect or breach of duty, or
any actual or alleged violation of civil rights, by an insured,
individually or collectively, while acting within the scope of his or
her duties as your executive officer(s), public official, officially
appointed commission, committee, agency or board member,
"employee" or volunteer worker, or while performing duties
related to the conduct of your business.
As an initial matter, the City and the named members of the Board are insureds
for acts within the scope of their employment. The Amended Complaint names each
member in his or her capacity as a member of the Planning Board and not individually.
Coverage under the Public Officials Liability Policy is available for damages
resulting from "claims" against the insured by reason of "wrongful acts"to which this
coverage applies. The term "wrongful acts" includes actual or alleged errors,
misstatements, misleading statements, acts or omissions, neglect or breach of duty, or any
actual or alleged violation of civil rights, by an insured, individually or collectively, while
acting within the scope of his or her duties. In the Amended Complaint, the Plaintiffs
allege the City and the Board made certain zoning amendments and approved the subject
application(s) submitted by the Developer for the Project in violation of state law and the
City's own Zoning Ordinances as well as without proper evidence and support. The
Plaintiffs further allege violations of their due process rights
Counts I- VII all allege violations by the City and/or the Board with respect to
their action as it relates to the Project. As a result of these counts, the Plaintiffs are
seeking an order annulling the Board's January 18, 2011 decision to allow the Project to
go forward and an order enjoining the City's Building Department from issuing any
building permits relating to the Project. Plaintiffs are also seeking attorney's fees, costs
and expenses. While wrongful acts have been pled, such claims are excluded by
exclusion k to the policy. In particular, exclusion k excludes from coverage any claims or
suits, or portions thereof, that seek non-monetary relief or redress. Additionally, the
exclusion excludes any costs, fees including attorneys' fees, or expenses which the City
or Board becomes legally obligated to pay as a result of such"claims'' or "suits."
Accordingly, these counts are all excluded from coverage.
Additionally,the Amended Complaint alleges the actions of the Board were in
excess of its authority and/or jurisdiction (Count VII) and arbitrary and capricious (Count
I). In this regard, exclusion c excludes coverage for claims alleging violation of any
federal, state or local statute, ordinance, rule or regulation if willfully done with the
knowledge and consent of any insured. To the extent that the Plaintiffs have alleged and
later prove the Board and/or City's actions were knowingly and willingly in violation of
said statutes, exclusion c would serve as an additional basis to exclude these counts from
coverage.
The remaining count, Count VIII, alleges a violation of Plaintiffs' due process
rights. Though an alleged violation of due process would constitute a wrongful act, it is
unclear what if any monetary damages the Plaintiffs are claiming as a result thereof. To
the extent no monetary damages are being sought, the count would be excluded from
coverage by exclusion k for the same reasons expressed above in Counts I-VII.
Accordingly, MIIA will provide the City and the Board with a defense under the
Public Officials Liability Policy subject to a full reservation of its rights to later refuse to
indemnify the City and the Board to the extent the Plaintiffs are not seeking monetary
damages, and to the extent the claims are otherwise not covered and/or are excluded from
coverage.
In agreeing to defend this matter under a full reservation of its rights, MIIA does
not waive, but instead expressly reserves ail rights, whether enumerated herein or not.
Neither this letter nor any action or inaction by MIIA shall be construed as a waiver of
any known or unknown defenses to coverage. Furthermore, the foregoing in no way
restricts MIIA from relying on or asserting any other grounds which are now available or
which may become available to it in the future.
Internally, our Public Officials Liability file will be handled under our file number
MI IPO62328 by Daniel Nucci. We have referred defense of this matter to Thomas
Donohue of Brody, Hardoon, Perkins & Kesten. In addition, please note this policy
carries a $7500 deductible.
If you are in possession of further information which you believe might impact
the assessment of this matter, please forward the information to our attention as soon as
possible. Additionally, in the event the Request is amended or altered in any way,please
provide our office with a copy.
Very truly yours,
Stephen N. Batchelder
Director- Claim Operations
cc: Salem Planning Board
Charles Puleo, Chair
M11A`--u
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CITY OF SALEM
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DEPARTMENT OF PLANNING AND
R�Gri7t146I}(t`,
KINQIERLEYDRISCOLL CommNITY DE VELOPMENT
MAYOR
LYNN GOOMN DUNGAN,AICP 120 WASHINGTON STREET♦ SALEM,MASSACHUSETTS 01970
DtREcroR TEL 978-619-5685 ♦ FAx:978-740-0404
hX
To: City of Lynn Law Dept,Attn:Kathleen From: Danielle McKnight,Staff Planner
Fax: 781-477-7043 Date: 2/3/11
Phone: Pages: 2 including cover
Re: Planning Board member informationM
❑ Urgent ❑ For Review ❑ Please Comment ❑ Please Reply ❑ Please Recycle
Comments:
1
PLANNING BOARD MEMBERS
UPDATED 8/10/10
Chuck Puleo, Chair Tim Kavanaugh
5 Freeman Road 14 May Street
Salem,MA 01970 Salem,MA 01970
John Moustakis,Vice Chair Tim Ready
23 Dearborn Street 22 Sable Road
Salem,MA 01970 Salem,MA 01970
Randy Clarke Christine Sullivan
19 Bentley Street 111 Federal Street
Salem,MA 01970 Salem,MA 01970
Nadine Hanscom Helen Sides
10 Bay View Circle 35 Broad Street
Salem,MA 01970 Salem,MA 01970
Mark George
26 Settlers Way
Salem,MA 01970
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS SUPERIOR COURT
CIVIL ACTION NO:
Z o _ ZzzA
ROBERT STILIAN, JAMES MAHONEY, )
DAVID ANGELLI, PAUL PRICE AND )
STEPHEN UPTON,AS THEY ARE MEMBERS )
OF THE CITY OF LYNN PLANNING BOARD, )
THE CITY OF LYNN PLANNING BOARD AND )
THE CITY OF LYNN )
Plaintiff )
V. )
CHARLES PULEO, RANDY CLARKE, )
MARK GEORGE, NADINE HANSCOM, )
JOHN MOSTAKIS, TIM READY, )
TIMOTHY KAVANAUGH AND HELEN SIDES )
CHRISTINE SULLIVAN )
AS THEY ARE THE PLANNING BOARD OF )
THE CITY OF SALEM, AND NOT INDIVIDUALLY)
THE CITY OF SALEM )
AND KENNEDY DEVELOPMENT GROUP, INC. )
Defendants )
COMPLAINT AND JURY DEMAND
I. Robert Stilian is a member of the City of Lynn Planning Board with a
business address, Lynn City Hall, 3 City Hall Square, Lyme, MA 0 190 1.
2. James Mahoney is a member of the City of Lynn Planning Board with a
business address, Lynn City Hall, 3 City Hall Square, Lym1, MA 01901.
3. David Angelli is a member of the City of Lynn Plamiing Board with a
business address, Lyrn City Hall, 3 City Hall Square, Lynn, MA 0 190 1.
4. Paul Price is a member of the City of Lynn Planning Board with a business
address, Lynn City Hall, 3 City Hall Square, Lynn, MA 01901.
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5. Steven Upton is a member of the City of Lynn Planning Board with a
business address, Lynn City Hall, 3 City Hall Square, Lynn, MA 01901.
6. The City of Lynn is a municipal corporation duly organized under the laws
of the Commonwealth of Massachusetts
7. The Lynn Planning Board is a municipal agency duly created under the
laws of the Commonwealth of Massachusetts.
8, Kennedy Development Group, Inc. is a Massachusetts Corporation duly
organized under the laws of the Commonwealth of Massachusetts with a principal place
of business located at 500 Broadway, Everett, MA 02149.
9. The Kennedy Development Group, Inc. is a developer intending to
construct a large commercial development at 440, 460, 462 and 488 Highland Avenue,
Salem, Massachusetts (hereinafter referred to as "the proposed conunercial
development').
10. Defendants Charles Puleo, Randy Clarke, Mark George, Nadine Hanscom,
Timothy Kavanaugh, John Moustakis, Tim Ready, Helen Sides and Christine Sullivan are
members of the City of Salem Planning Board.
11. The residential addresses of the members of the Salem Plarming Board are
as follows:
Chuck Puleo, Chair, 5 Freeman Road, Salem, MA 01970
John Moustakis, Vice Chair, 23 Dearborn Street, Salem, MA 01970
Randy Clarke, 19 Bentley Street, Salem, MA 01970
Nadine Hanscom, 10 Bay View Circle, Salem, MA 01970
Mark George, 26 Settlers Way, Salem, MA 01970
Tim Kavanaugh, 14 May Street, Salem, MA 01970
Tim Reddy, 22 Sable Road, Salem, MA 01970
Christine Sullivan, 111 Federal Street, Salem, MA 01970
Helen Sides, 35 Broad Street, Salem, MA 01970
12. The City of Salem is a municipal corporation with a business address of 93
Washington Street, Salem, Massachusetts.
13. Upon information and belief, in and around 2008, the City of Salem entered
into negotiations with the developer to encourage the proposed commercial development.
14. As of 2008, the proposed conunercial development was not zoned in a
manner which would allow the construction of a Lowes/Super Walmart at that site.
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15. At the request of the Mayor, the City of Salem initiated a zoning change
that was designed specifically to allow the proposed conunercial development project as
a matter of right.
16. The City of Salem subsequently adopted such a zoning change that
facilitated the proposed conunercial development project as a matter of right.
17. Upon information and belief, the City of Salem did not provide the
statutorily required notice to abutters and parties in interest as defined by Massachusetts
General Laws Chapter 40A prior to adopting said zoning change.
18. Upon information and belief, the Mayor of the City of Salem entered into
negotiations with the developer to arrange for a land swap to facilitate the proposed
commercial development project.
19. As part of these secret negotiations, the developer agreed to construct a
water tower for the use of the residents of the City of Salem at significant cost.
20. As Mayor of the City of Salem, the Mayor is the appointing authority for
the members of the Salem Planning Board.
21. Prior to the submission of applications to the City of Salem Planning
Board, the Mayor and other municipal officials publically spoke in favor of the proposed
development project.
22. The proposed development project is located on Route 107 (Highland
Avenue) and is in close proximity to the City of Lynn.
23. The only public ingress/egress to the proposed project development is
proposed to be Route 107, a residential street which is shared by Lynn and Salem and
Magnolia. The plan proposes no other public ingress or egress.
24. Belleaire Avenue as shown on the maps and plans of the City of Lynn
immediately abuts the proposed commercial development project and the City of Lynn
has a property interest therein.
25. Route 107 is a Massachusetts State Highway which connects the City of
Salem and the City of Lynn.
26. At or near the City line separating the City of Salem and the City of Lynn,
Route 107, changes from a four lane roadway (two in each direction) to a two lane
roadway (with one lane of travel in each direction).
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27. In and around 2010, the developer filed an application with the Salem
Plarming Board under Section 7.3, Planned Unit Development and Section 9.5, Site Plan
Review, of the City of Salem Zoning Ordinance.
28. The proposed project included a new Lowe's Home Improvement retain
store, a new expanded Walmart store, expanded Meineke Store, improvements to Camp
Lion, and a new municipal water tank.
29. Charles Puleo is the Chairman of the City of Salem Planning Board.
30. Chairman Puleo owns commercial property located at/or near 376 Highland
Avenue, Salem, Massachusetts,
31. Chairman Puleo served as Chairman of the Salem Planning Board during
numerous public hearings held relative to the developer's application.
32. As Chairman, Mr. Puleo controlled the agenda, selected which members of
the public could speak at the hearing and established procedures limiting the amount of
speakers and time allotted to such speakers during the numerous public hearings.
33. Upon infonnation and belief, Chairman Puleo had a financial interest in the
allowance of the proposed development project as the project would likely result in an
increase to patrons of business/commercial uses including a retail food establishments
own, managed, leased and/or operated by Chairman Puleo.
34. The Mayor of the City of Salem incorrectly permitted Chairman Puleo to
deliberate and vote on the subject petitions given his obvious financial interest.
35. Chainnan Puleo's business uses, including a restaurant will be the closest
food service establislunent to the proposed conmmercial development project.
36. The proposed commercial development project will substantially increase
the number of patrons to businesses owned, managed and/or leased by Chairman Puleo.
37. Upon information and belief, the Mayor of the City of Salem pernutted
Chairman Puleo to deliberate and vote on the matter based upon her public support of the
project.
38. Public hearings were held on march 18, April 1, April 15, May 6, May 20,
June 3, June 17, July 15, September 16, September 20, October 21, November 18,
December 2, December 16, 2011 and January 6 and 13, 2011.
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39. On June 17, 2010, the City of Salem Planning Board opened a public
hearing under section 8.1, Wetlands and Flood Overlay District of the City of Salem
Zone Ordinance,
40. At the present time, numerous residents of the City of Lynn experience
flooding and drainage runoff which emanates from the site of the proposed development
project, specifically the proposed site of the new Lowe's Horne Improvement retail store.
41. The proposed commercial development as described in the plans and maps
does not comply with the City of Salem Master Plan and good zoning practice as is
required by Section 7.3.1 of the City of Salem Zone Ordinance.
42. The proposed cormnercial development is not compatible with the surround
area, including, but not limited to conservation land located in the City of Lynn which
immediately abuts the proposed project site.
43. The proposed conunercial project does not contain a minimum of the lesser
of sixty thousand (60,000) square feet or five (5) times the minimum lot size of the
zoning district it is in as required by Section 7.3.2 of the City of Salem Zone Ordinance.
44. During the public hearings, the Developer failed to offer evidence as to the
means that would be employed to protect the abutting property and the health, welfare
and privacy enjoyed thereon as is required by Section 7.3.3 (2) of the City of Salem Zone
Ordinance,
45. The proposed commercial project will significantly injure the health, safety,
welfare and privacy of current and future abutting property owners, including but not
limited to property owners of Bellaire Avenue which immediately abuts the property.
46. Purported balloon tests conducted by the developer were flawed from an
engineering perspective and did not adequately predict the site line and visual impacts of
the proposed cormnercial development.
47. The purported balloon tests were not adequately publicized to allow the
Plaintiff and the residents of the City of Lynn to monitor the site line and visual impacts
of the proposed commercial development.
48. The proposed commercial project would cause significant negative visual
impacts to residential property in the City of Lynn.
49. A proposed 15 foot high sound/screening wall to be constructed behind the
proposed Lowe's Home Improvement retail store would be insufficient to protect the
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health, safety, welfare and privacy of abutting properties and to residents of the City of
Lynn.
50. The proposed 15 foot high sound/screening wall is insufficient to alleviate
increased noise and the negative visual impact of the proposed cormnercial project.
51. The proposed 15 foot sound/screening wall is insufficient to alleviate or
eliminate the noise and visual issues expected to be experienced by abutting Lyme
residential neighborhood development.
52. The proposed conunercial project will threaten the health, safety, welfare
and privacy of the abutting Lynn residential property owners.
53. The proposed planned unit development is not in harmony with the purpose
and intent of the City of Salem Zone Ordinance and the Master Plan of the City of Salem.
54. The proposed conunercial project is not sufficiently advantageous to tender
it appropriate to depart from the normal requirements of the Business park District.
55. The proposed commercial project will have a significant negative impact as
it will result in loss of open space, nature trails and will adversely impact conservation
land and wetlands.
56. The proposed conunercial project will result in a significant increase in
traffic, particularly upon Route 107 in Lynn which threatens the health, safety, welfare
and privacy of the City of Lymr and its residents.
57. The proposed cormnercial project will generate no tax revenue to the City
of Lynn and will likely result in a reduction in property tax revenue from residential
properties near the proposed site.
58. The proposed commercial project will require significant removal of trees
and shrubbery near the City of Lynn line.
59. The removal of trees and significant blasting will threaten and injure the
health, safety, welfare and privacy of the City of Lynn and its residents.
60. The drainage issues which currently emanates from the site will be
exacerbated by the proposed commercial project.
61. In contradiction to the mandates of the Salem Zoning Ordinance and the
City of Salern Master Plan, on January 13, 2011, the Defendant Salem Planning Board
unanimously found that the proposed project met the provisions of Section 7.3, Planned
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Unit Development, of the City of Salem Zone Ordinance and approved Site Plan Review,
Planned Unit Development Special Permit and Wetland and Flood Hazard District
Special Permit.
62. As a condition to the Special Permit, the Salem Planning Board required
the developer to provide approximately $100,000 for studies and peer reviews for traffic
mitigation.
63. The proposed commercial project will have a far greater negative impact
upon the City of Lynn.
64. Nevertheless, the Salem Planning Board imposed no conditions and
required no financial expenditures for traffic initigation in the City of Lynn.
65. The Salem Planning Board did not seek or receive input from the City of
Lynn Planning Board relative to traffic mitigations in the City of Lynn.
66. The Salem PlanningBoard int g imposed conditions relating to traffic design at
P o g
intersections lying solely in the City of Lynn without seeking or obtaining input from the
City of Lynn Planning Board and the City of Lynn Department of Public Works.
67. The conditions imposed by the Salem Planning Board with respect to the
redesign of intersections lying whole in the City of Lynn will not promote the health,
safety and welfare of the residents and visitors of the City of Lynn and will have adverse
financial and other implications upon the City of Lynn as they relate to traffic, drainage
and public safety.
68. Despite the fact that residents of the City of Lynn are presently far more
impacted by drainage issues emanating from the site, the Salem Planning Board required
the developer as a condition of the Special Permit to contribute more money to the City
of Salem to alleviate drainage and stone water, issues that the amount required to be
contributed to the City of Lynn.
69. The decision of the Salem Planning Board was filed with the City Clerk's
Office on January 18, 2011,
70. In January, 2011, the City of Salem Zoning Board of Appeals deified a
petition to locate a methadone clinic on Route 107 in Salem.
71 The Notice of Decision filed by the Salem Zoning board of Appeals states
that the proposed methadone clinic would generate unneeded traffic and would
negatively effect the neighborhood as a result of such increased traffic.
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72. Upon information and belief, the methadone clinic would generate far less
traffic than the proposed connnercial development.
73. The methadone clinic was proposed to be sited at a location where Route
107 had four lanes of travel, two in each direction.
74. The proposed commercial development is located near the site where Route
107 narrows to two lanes of travel at the L}mn/Salem border.
75. The City of Lynn and the City of Lynn Planning Board are persons
aggrieved by the decision of the Salem Planing Board
76. A certified copy of said decision is dated January 18, 2011 is attached
hereto as "Exhibit A."
77. The City of Lynn and the Lynn Planning Board have satisfied all conditions
precedent as required by Mass.R.Civ.Pro. 9(c) in bringing this litigation pursuant to
M.G.L. c. 40A, Sec. 17,
78. The decision of the Salem Planning Board is based upon the legally
untenable interpretation of the Salem Zone Ordinance and the Salem Master Plan.
79. Said decision of the Salem Planning Board is based upon legally untenable
grounds, is whimsical, capricious or arbitrary, has insubstantial basis in fact and is an
abuse of discretion by said Board.
80. Said decision of the Salem planning Board fails to give a requisite
statement of reasons or make findings of facts to support the denial of granting of Special
Permits.
81. Defendant Salem Planning Board wrongfully applied the provisions of the
Massachusetts General Laws as amended and the City of Salem Zone Ordinance and City
of Salem Master Plan.
82. Said decision of the Salem Planning Board exceeds the authority of the
Salem Planing Board.
COUNT 1 - DECISION OF SALEM PLANNING BOARD IS ARBITRARY AND
CAPRICIOUS (M.G.L. c. 40A, s. 17).
83 The plaintiffs repeat and reallege the allegations contained in paragraphs
One through Eighty-two as if fully stated herein.
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84. The decision of the Salem Planning Board is arbitrary, capricious and not
supported by the evidence proffered during public hearings and exceeds the authority of
the Planning Board.
COUNT 2 - DECISION OF THE SALEM PLANNING BOARD LACKS
SPECIFIC FINDINGS
85. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through Eight-four as if fully stated herein.
86. The decision of the Salem Planning board lacks specific findings as is
required by the City of Salem Zone Ordinance, the City of Salem Master Plan and
Massachusetts General Laws Chapter 40A.
COUNT 3 - VIOLATION OF M.G.L. 40A, s. 5
87. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through Eighty-six as if fully stated herein.
88. In or around 2008, the City of Salem voted to amend its Zone Ordinance
with specific application to the site of the proposed commercial project.
89. Upon information and belief, the City of Salem did not comply with the
requirements of M.G.L. c. 40A, s. 5 when adopting said amendments to the Zone
Ordinance.
90. Upon information and belief, the City of Salem did not provide notice to all
persons and boards as is required by M.G.L. c. 40A, s. 5.
COUNT 4 - SPOT ZONING
91. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through Ninety as if fully stated herein.
92. The amendments to the City of Salem Zone Ordinance constitute unlawful
spot zoning as the amendment applied solely to parcels relating to the site of the proposed
cormnercial project.
93. The Defendant City of Salem failed to provide proper notice of the
amendments to the City of Salem Zone Ordinance as is required by M.G.L. c. 40A, s. 5.
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94. The purported amendment to the Salem Zone Ordinance effecting the site
of the proposed commercial project should be found to be null and void as the
amendment constitutes spot zoning.
COUNT 5 - VIOLATION OF M.G,L. C, 268A
95. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through Ninety-four as if fully stated herein.
96. Charles Puleo is the Chairman of the City of Salem Planning Board.
97. As Chairman, Mr. Puleo controlled the agenda and established and enforced
procedures relating to the public hearings.
98. Chairman Puleo determined the number of individuals who would be
allowed to speak on a given subject and the order thereof.
99. Chairman Puleo determined the amount of time that the Salem Planning
Board would devote to the matter at each public hearing thereon.
100. Chairman Puleo owns and/or has a financial interest in property which is in
close proximity to the site of the proposed commercial project.
101. It is agreed by the all parties that the proposed conumercial development
will result in increased traffic along Route 107,
102. The expected increase in traffic along with the influx of construction
workers, employees and shoppers will likely result in an increase of need and
consumption of food.
103. It is reasonably foreseeable and likely that Chairman Puleo will experience
an increase in business at his retail food/dairy establishment located at 376 Highland
avenue.
104. M.G.L. c. 268A prohibits a municipal employee to participate in any matter
where it is reasonably foreseeable that the employee has a financial interest in the matter.
105. Chairman Puleo actively participated in the petition of the developer and
controlled and influenced debate.
106. Chairman Puleo should have recused himself from this matter given his
personal financial interest in the granting of the special permit.
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107. The Mayor of the City of Salem should not have determined that Chainnan
Puleo's financial interest was such that would render him to be impartial in participating
in this matter.
COUNT 6 - OPEN MEETING LAW VIOLATION
108. The plaintiffs repeat and reallege the allegations contained in paragraphs
One through One Hundred and Seven as if fully stated herein.
109. Upon infonnation and belief, neither the developer nor the City of Salem
Planning Board provided proper notice to all parties in interest and abutters to the project
as is required by M.G.L. c. 40A.
110, As a result of the failure to comply with statutory notice requirements, the
decision of the Salem Plamiing Board should be annulled.
COUNT 7 - PLANNING BOARD LACKS JURISDICTION TO ISSUE
CONDITIONS WITH RESPECT TO LAND LYING SOLELY IN THE CITY OF
LYNN
111. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred and Ten as if fully stated herein.
III The decision of the Salem Planning Board requires the developer to
undertake the redesign of certain intersections why lie solely within the City of Lynn.
113. Prior to imposing such conditions, the Salem Planning Board did not
consult with the City of Lynn Planning Board, the City of Lyme Fire Department or the
City of Lynn Department of Public Works.
114. Said traffic conditions have a direct impact upon the residents and visitors
of the City of Lymi.
115. The Salem Planning Board lacks jurisdiction to require certain traffic
alterations over land which does not lie within the City of Salem.
COUNT 8 - VIOLATION OF DUE PROCESS RIGHTS
116. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred and Fifteen as if fully stated herein.
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117. The City of Salem, through its Mayor and elected and appointed officials
negotiated with the developer for several years prior to the granting of a special permit.
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118. The City of Salem, by and through its appointed and elected officials
negotiated a land swap with the developer prior to the filing of an petitions to complete
the proposed commercial project.
119. The City of Salem, by and through its elected and appointed officials,
negotiated the construction of a water tower for the benefit of the residents of Salem.
120, The City of Salem, by and through its elected and appointed officials
proposed and adopted amendments to the City of Salem Zone Ordinance solely for the
purpose of allowing the proposed commercial development as a matter of right.
121. The Mayor of the City of Salem is the appointing authority for members of
the City of Salem Planning Board.
122. Upon information and belief, certain members of the Salem Planning Board
are hold-over appointments as their terms have expired.
123. Upon information and belief, these members were not re-appointed prior to
the vote on this matter as a means to ensure that the special permit would be granted.
124. The Mayor of the City of Salem was a vocal proponent of the proposed
conunercial project and actively campaigned and negotiated with the developer prior to
the filing of the instant applications for permits.
125. Thousands of individuals signed petitions in opposition to the proposed
commercial project and submitted such opposition to the Salem Planning Board.
126. ,Hundreds of individuals appeared at public hearings before the Salem
Planning Board in opposition to the proposed conunercial project.
127. The great weight of the evidence presented to the Salem Planning Board
demonstrated that the application for permits did not comply with the Salem Zone
Ordinance and the Salem Master Plan.
128. The public hearings and subsequent deliberations were predetennined prior
to the conurrencerment of the hearings themselves.
129. The hearings were merely a sham in an attempt to comply with the hearing
requirements mandated by the Salem Zone Ordinance and Massachusetts General Laws
Chapter 40A.
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Wherefore the Plaintiffs City of Lynn and the City of Lyme Planning Board pray
that this Honorable Court, pursuant to M.G.L. c. 40A, s. 17 and the Court's general
equity power:
1. Enter an order annulling said decision of the City of Salem Planning Board
dated January 18, filed in the office of the City Cleric on January 18, 2011.
2. Enter an Order that the City of Salem Building Department refrain from
issuing any building permits relating to the project.
3. Grant the Plaintiffs their attorney's fees, costs and expenses.
4. Grant such other and further relief as the Court may deem just and proper.
JURY DEMAND
The Defendant City of Lynn and Lynn Planning Board hereby demands a trial by
jury on all triable issues of fact.
The City of Lynn
The City of Lyme Planning Board
By their Attorney
George S. Markopoulos, Esquire
Assistant City Solicitor
Lynn City Hall, Room 406
Lynn, MA 01901
BBO# 546189
(718) 596-4000 Ext. 6840
Dated: February 7, 2011
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Exhibit "A "
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Ljf -
v c� CITY OF SALEM
T
PLANNING BOARD
7n
Site Plan Review, Planned Unit Development Special Permit,
and Wetland and Flood Hazard District Special Permit Decision
440, 460, 462, and 488 HIGHLAND AVENUE (Map 3, Lots 1, 2, 3 and 4)
January 18, 2011
Kennedy Development Group, Inc.
C/o Joseph Correnti, Esq,
Serafini, Darling & Correnti
63 Federal Street
Salem, MA 01970
RE: Lowe's Home Improvement retail store, new, expanded Walmart store, expanded Meineke store,
Camp Lion improvements and new municipal water tank
Site Plan Review/Planned Unit Development
On Thursday, March 18, 2010, the Planning Board of the City of Salem opened a Public Hearing under
Section 7.3, Planned Unit Development, and Section 9.5, Site Plan Review, of the City of Salem
Zoning Ordinance, at the request of Kennedy Development Group, Inc., for the properties located at
440, 460, 462, and 488 HIGHLAND AVENUE (Map 3, Lots 1, 2, 3 and 4), The proposed project
includes a new Lowe's Home Improvement retail store, a new, expanded Walmart store, expanded
Meineke store, improvements to Camp Lion, and a new municipal water tank.
The Public Healing was continued to April 1, 2010, April 15, 2010, May 6, 2010, May 20, 2010, June
3, 2010, June 17, 2010, July 15, 2010, September 16, 2010, September 30, 2010, October 21, 2010,
November 18, 2010, December 2, 2010, December 16, 2010, January 6, 2011, and January 13, 2011.
On Thursday, June 17, 2010, the Planning Board of the City of Salem opened a Public Heating under
Section 8.1, Wetlands and Flood Hazard Overlay District (WFHOD), of the City of Salem Zoning
Ordinance, at the request of Kennedy Development Group, Inc., for the property located at 488
HIGHLAND AVENUE (Map 3, Lot 1). The proposed project includes a new Lowe's Home
Improvement retail store. The Public Heating was continued to July 15, 2010, September 16, 2010,
September 30, 2010, October 21, 2010, November 18, 2010, December 2, 2010, December 16, 2010,
January 6, 2011, and January 13, 2011.
The Planning Board, after numerous public hearings and review of submitted materials, hereby makes
the following "Findings of Fact", attached as Exhibit A and hereby incorporated as part of this
decision.
120 WASHINGTON STREET, SALEM, MASSACHUSETTS 01970 .TEL: 978.745.9595 FAx: 978.740.0404 ♦ WA/W.SALEM.COM
The Planning Board also hereby finds that the proposed project meets the provisions of the City of
Salem Zoning Ordinance, Sec. 7.3 Planned Unit Development, as follows:
1) 7.3.1 Purpose—The proposed Planned Unit Development (PUD), which incorporates retail,
municipal, and outdoor recreational uses, meets the purpose and intent of the Zoning Ordinance and
Master Plan of the.City of Salem.
2) 7.3.2 Applicability—The proposed development parcel is significantly greater than 60,000 square
feet in area. The underlying zoning districts of the proposed development parcel are BPD
(Business Park Development) and B-2 (Highway Business District), each of which are eligible
districts for PUD treatment.
3) 7.3.3 Uses—The proposed uses, including retail, municipal, and outdoor recreation, are allowed in a
PUD development.
• 7.3.3.2—The Applicant has submitted detailed engineering and architectural specifications,
including drawings, photographs, and photo-simulations of the means that will be employed to
protect abutting properties in both Salem and Lynn. Specifically:
o The Applicant conducted a balloon test whereby balloons were floated at strategic
locations at the height of the proposed Lowe's building. Photographs taken from
numerous locations at ground level show sight impacts to be minimal from existing
residential neighborhoods.
o A 15-foot high sound/screening wall will be constructed behind the proposed Lowe's
building;
c The proposed sound/screening wall will serve as a noise and visual buffer between the
Lowe's building and loading docks and the abutting Lynn residential development;
o The proposed sound/screening wall, along with the existing and proposed landscaping
buffer between Lowe's and the abutting Lynn residential development, will serve to
protect the health, safety, welfare and privacy of the residential development;
o The elimination of the existing Camp Lion driveway, a revision to the originally
submitted plans, has increased the buffer between the residential neighborhood in Lynn
and the proposed Lowe's building.
o The proposed Walmart loading docks to the rear will be located over 400 feet from the
nearest residential abutter with significant differences in elevation and a continuing
landscape buffer, which will serve to protect the health, safety, welfare and privacy of
the abutting residents;
o Walmart has agreed to limit truck deliveries to its building to the hours of 6:00 a.m. to
12:00 a.m., with no overnight deliveries between 12:00 a.m. (midnight) and 6:00 a.m.
7.3.3.3 — In the Business Park Development district, residential uses and associated
improvements cannot exceed 50% of the land area of the parcel. There are no residential uses
proposed.
4) 7.3.8 Decision
7.3.8.1 - The proposed planned unit development is in harmony with the purposes and intent of
this Ordinance and the master plan of the City of Salem and it will promote the purpose of this
section by:
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a) Providing for a comprehensive,planned approach to commercial, municipal, and
recreational development of adjacent parcels on Highland Avenue. The proposed PUD will
eliminate several existing curb cuts along Route 107 and coordinate traffic through a newly
created signalized drive into the site that will be utilized by each of the proposed uses.
b) In addition to providing vehicular access for the City of Salem water tower and the Camp
Lion outdoor recreational facility, the proposed PUD will coordinate utilities access to each
of the proposed uses.
c) Providing for appropriate economic development on an existing commercial corridor,
thereby generating tax revenue and creating jobs.
• 7.3.8.2 - The mixture of uses in the planned trait development is determined to be sufficiently
advantageous to render it appropriate to depart from the normal requirements of the districts.
Specifically, the project incorporates a mixture of commercial, municipal, and recreational uses,
providing substantial public benefit.
• 7.3.8.3 - The planned unit development would not result in a net negative environmental
impact. Specifically,
a) The proposed PUD requires the cutting of existing trees and blasting on site, but also
includes the planting of over 1,000 new trees and shrubs on site.
b) The Applicant predicts that the Drainage Plans, as submitted, revised and reviewed, will
improve the existing pre-development condition of the site and surrounding neighborhoods
in regard to drainage. The Applicant's engineering work is complete and thorough, and
their analysis and predictions are reasonable.
c) The Applicant presented information indicating that the project will have no adverse
impacts to the Spring Pond water supply in Peabody. Their analysis is reasonable and
satisfactorily addresses the concerns about potential contamination runoff being directed to
Spring Pond.
d) The proposed PUD incorporates Low Impact Development(LID) techniques for Walmart.
e) The proposed PUD incorporates energy-saving and greenhouse gas initiatives for the
proposed buildings.
The Planning Board hereby makes the following findings pertaining to the Wetlands and Flood Hazard
District Special Permit Application:
1. The proposed uses comply in all respects with the Zoning Ordinance and particularly the PUD
section of the Ordinance.
2. Portions of the site are located within the Wetlands District, as defined in the Zoning
Ordinance.
3. The proposed development does not include the storage of salt, chemicals or petroleum
products, other than those materials packaged, stored and handled for retail sale and stored
within the buildings and stored within the buildings and an above-ground double-walled fuel
tank with interstitial leak detection monitoring, that is attached to and serves as the fuel supply
for the emergency generator serving the Lowe's store.
4. The floor levels of areas to be occupied by workers will be four feet or more above the seasonal
high water table with no basement floor level being constructed in any building.
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5. The project will be serviced by City sewer. There will be no on lot septic system.
6. The Drainage Plans and design, as submitted, will improve the water storage capacity of the site
and protect against pollution and contamination of such water supply and wetlands.
At a special meeting of the Planning Board held on January 13, 2011, the Planning Board voted by a
vote of nine (9) in favor (Charles Puleo, John Moustakis, Randy Clarke, Nadine Hanscom, Mark
George, Tim Kavanaugh, Tim Ready, Christine Sullivan, Helen Sides), and none (0) opposed to
approve the Site Plan Review, Planned Unit Development Special Permit, and Wetland and Flood
Hazard District Special Permit, subject to the following conditions:
1. Conformance with the Plan
Work shall conform to the plans entitled, "Planned Unit Development Application: Proposed
Lowe's Home Improvement Center, Wal-Mart and Meineke Expansions, City of Salem Water
Storage Tank, and Future Camp Lion Improvements, Highland Avenue, Salem, Massachusetts,"
prepared for Kennedy Development Group, prepared by Tetra Tech Rizzo and Bohler Engineering,
dated February 19, 2010 and last revised October 18, 2010, and page C-2, Site Plan, and page C-5,
Landscape Plan, last revised December 15, 2010; and the plan entitled "Proposed Screening Wall,
Salem, MA," dated January 13, 2011, showing additional planting on the south side of the site.
2, Amendments
Any amendments to the site plan shall be reviewed by the City Planner and if deemed necessary by
the City Planner, shall be brought to the Planning Board. Any waiver of conditions contained
within shall require the approval of the Planning Board.
3, Construction Practices
All construction shall be carried out in accordance with the following conditions:
a. All provisions in the City of Salem's Code of Ordinance, Chapter 22, Noise Control, shall be
strictly adhered to.
b. All reasonable action shall be taken to minimize the negative effects of construction on abutters.
Advance notice shall be provided to all abutters in writing at least 72 hours prior to commencement
of demolition and construction of the project.
c. Drilling and blasting shall be limited to Monday-Friday between 8:00 AM until 5:00 PM. There
shall be no drilling, blasting or rock hammering on Saturdays, Sundays, or holidays. Blasting shall
be undertaken in accordance with all local and state regulations.
d. All construction vehicles shall be cleaned prior to leaving the site so that they do not leave dirt
and/or debris on surrounding roadways as they leave the site.
e. All construction shall be performed in accordance with the Rules and Regulations of the
Planning Board, and in accordance with any and all rules, regulations and ordinances of the City of
Salem.
f. All construction vehicles left overnight at the site, must be located completely on the site
g. All construction activities shall be in accordance with the "Salem Police Station Construction
Management Plan".
h. All sidewalks, roadways, utilities, landscaping, etc. damaged during construction shall be
replaced or repaired to their pre-construction condition, or better.
i. A Construction and Management Plan is to be submitted to the City Planner for appropriate
distribution to Salem departments and the City of Lynn.
4. Fire Department
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a. All work shall comply with the requirements of the Salem Fire Department. The locations of all
fire hydrants shall be approved by the Fire Department prior to the issuance of any building
permit.
5. Building Inspector
All work shall comply with the requirements of the Salem Building Inspector.
6. Board of Health
All work shall comply with the Board of Health decision and conditions dated October 13, 2010:
a. The individual presenting the plan to the Board of Health must notify the Health Agent of
the name, address, and telephone number of the project (site) manager who will be on site
and directly responsible for the construction of the project.
b. If a DEP tracking number is issued for this site under the Massachusetts Contingency Plan,
no structure shall be constructed until the Licensed Site Professional responsible for the site
meets the DEP standards for the proposed use.
c. A copy of the Licensed Asbestos Inspector's Report must be sent to the Health Agent.
d. A copy of the Demolition Notice sent to the DEP, Form MArPAO6, must be sent to the
Health Agent.
e. The developer shall give the Health Agent a copy of the 2 1 E report.
f. The developer shall adhere to a drainage plan as approved by the City Engineer.
g. The developer shall employ a licensed pesticide applicator to exterminate the area prior to
construction, demolition, and/or blasting and shall send a copy of the exterminator's invoice
to the Health Agent.
h. The developer shall maintain the area free from rodents throughout construction.
i. The developer shall submit to the Health Agent a written plan for dust control and street
sweeping which will occur during construction.
j. The developer shall submit to the Health Agent a written plan for containment and removal
of debris, vegetative waste, and unacceptable excavation material generated during
demolition and/or construction.
k. The Fire Department must approve the plan regarding access for fire fighting.
1. Noise levels from the resultant establishment(s) generated by operations, including but not
limited to refrigeration and heating, shall not increase the broadband sound level by more
than 10 dB(A) above the ambient levels measured at the property line and as further
interpreted in the MA Department of Environmental Protection noise pollution policy and
310 CMR 7.10 .
5
in. The developer shall disclose in writing to the Health Agent the origin of any fill material
needed for the project.
n. The resultant establishment shall dispose of all waste materials resulting from its operation
in an environmentally sound manner as described to the Board of Health.
o. The drainage system for this project must be reviewed and approved by the Northeast
Mosquito Control and Wetlands Management District.
p. Proposed food establishments must have their plans reviewed by the Health Agent prior to
their build-out.
q. The developer shall notify the Health Agent when the project is complete for final
inspection and confirmation that above conditions have been met.
7. Utilities
a. Utility installation shall be reviewed and approved by the City Engineer prior to the issuance of
any Building Permit. The applicant shall have an engineer certify the utility plans for review by
the City Engineer, prior to the issuance of any Building Permit.
b. All electrical utilities for the site shall be underground.
8. Department of Public Services
The applicant, his successors or assigns shall comply with all requirements of the Department of
Public Services.
9. Lighting
a. No light shall cast a glaze onto adjacent parcels or adjacent rights of way.
b. A final lighting plan shall be submitted to the City Planner for review and approval prior to the
issuance of any building permit.
c. After installation, lighting shall be reviewed and approved by the City Planner,prior to the
issuance of any Certificate of Occupancy.
10. HVAC
If an HVAC unit is located on the roof or site, it shall be visually screened. The method for
screening the unit shall be submitted to the City Planner for review and approval prior to
installation.
11. Noise
HVAC units shall be sufficiently buffered and the applicant shall take steps to further mitigate
noise emanating from the HVAC units(s) if the Board of Health receives any complaints.
12. Landscaping
a. All landscaping shall be done in accordance with the approved set of plans; detailed landscaping
plan for the plan entitled "Proposed Screening Wall"dated January 13, 2011, is to be submitted to
the City Planner for review and approval prior to issuance of any building permit
b. Maintenance of all landscaping shall be the responsibility of the applicant, his successors or
assigns. The applicant, his successors or assigns, shall guarantee all trees and shrubs for a two- (2)
year period.
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c. Any street trees removed as a result of construction shall be replaced. The location of the trees
shall be approved by the City Planner prior to replanting.
d. Final completed landscaping shall be subject to approval by the City Planner prior to the
issuance of a Certificate of Occupancy.
13. Maintenance
a. Refuse removal, recycling, ground maintenance and snow removal shall be the responsibility of
the developer, his successors or assigns.
b. Winter snow in excess of snow storage areas on the site shall be removed off site.
14. As-built Plans
a. As-built Plans, stamped by a Registered Professional Engineer, shall be submitted to the
Department of Planning and Community Development and Department of Public Services prior to
the issuance of any Certificate of Occupancy.
b. The As-Built plans shall be submitted to the City Engineer in electronic file format suitable for
the City's use and approved by the City Engineer, prior to the issuance of any Certificate of
Occupancy.
c. A completed tie card, a blank copy(available at the Engineering Department) and a certification
signed and stamped by the design engineer, stating that the work was completed in substantial
compliance with the design drawing must be submitted to the City Engineer prior to the issuance of
any Certificate of Occupancy; as well as, any subsequent requirements by the City Engineer.
15, Violations
Violations of any condition contained herein shall result in revocation of this permit by the Planning
Board, unless the violation of such condition is waived by a majority vote of the Planning Board.
16. Special Conditions:
1. Traffic
a. Applicant agrees to provide up to $75,000 to MassDOT to undertake a study for the data
collection, analysis and conceptual design of three intersections on Route 107 in Salem for the
purpose of identifying alternatives for traffic mitigation for the intersections at Swampscott
Road, Marlborough Road/Trader's Way, and Pep Boys/Market Basket Plaza Driveways. (See
Exhibit B.) Further, the applicant agrees to provide$17,000 to the City of Salem for traffic
engineering peer review related to this study. Said funds to be provided to MassDOT and the
City of Salem, respectively, prior to issuance of any building permit.
b. Applicant agrees to design and implement an exclusive right-tum lane on the Western
Avenue southbound approach to Fays Avenue in Lynn, subject to the approval of MassDOT. In
addition, applicant will replace the existing traffic signal equipment and have traffic signal
timing changed to increase the amount of"green time"provided to the Western Avenue
approaches during each signal cycle, subject to the approval of MassDOT. Applicant is to
coordinate with/obtain-necessary approvals from MassDOT,
c. It is noted that as a potential alternative to address traffic concerns identified in the City of
Lynn, the applicant is proposing a two-way left turn lane on Western Avenue from Buchanan
Circle to (approximately) the current location of the Camp Lion driveway. This reference is
included herein to acknowledge that this alternative could be a requirement of MassDOT as part
of the MEPA review process. It is not a condition of approval of the Salem Planning Board.
7
d. All traffic and roadway improvements shall be implemented as approved by the State prior
to the issuance of any Certificate of Occupancy.
e. Lowe's and Walmart are required to each join the North Shore Transportation Management
Association (TMA) for a minimum period of three years. The cost for such membership shall be
based on rates in effect at the time of this approval. Payment for the three year membership to
be made prior to the issuance of any Certificate of Occupancy.
2. Stormwater Management
a. Applicant to inspect existing stormwater management system within the limits of the
proposed Highland Avenue improvements during construction to identify any catch basins,
manholes, or stormwater pipes that do not appear to be functioning properly. Catch basins,
manholes, and stormwater pipes found to be in need of cleaning, repair, or replacement or
that differ from the conditions identified on the existing conditions survey (i.e. smaller
diameter pipe than shown on the plans) are to be reported to the Salem City Engineer and
MassDOT prior to any action being taken. Said catch basins, manholes, or stormwater pipes
will be cleaned, repaired, or replaced subject to the approval of MassDOT as part of the
project improvements. Evaluation and cleaning to specifically include the catch basin at the
outlet to the wetland located at the southeast property boundary, which is located
approximately ten feet off Highland Avenue.
b. Future developments at the Camp Lion facility must not exceed the impervious areas shown
on the approved plans in order to meet Massachusetts Stormwater guidelines. Furthermore,
development of the camp site shall include stormwater treatment measures as stated in the
project Drainage Report, dated November 23, 2010.
c. Applicant is to submit an Operation and Management Plan for the stormwater management
system, describing the frequency of cleaning (at least twice per year), and maintenance of
the system, clearly defining the responsible party for maintenance, prior to the issuance of
any building permit.
d. The applicant is to contribute $60,000 prior to issuance of any Certificate of Occupancy to
the City of Lynn to be used by the City of Lynn toward drainage improvements, specifically
including repair or replacement of a stormwater pipe identified in the Buchanan Circle
neighborhood that is functioning improperly and contributing to flooding conditions in that
neighborhood, as identified in Paragraph 28 of Exhibit B attached hereto.
3. Deliveries to Walmart to be limited to the time period between 6 a.m. and 12 a.m. (midnight)
consistent with current store operations.
4. Details, specifications, and design calculations for the retaining wall at Lowe's, including color, to
be submitted to the City Engineer and City Planner for review and approval prior to start of
construction.
5. Specifications for the sound barrier/screening wall, including color, located to the rear of the
Lowe's store, are to be submitted to City Planner for review and approval prior to start of
construction.
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6. A sidewalk is to be constructed along Highland Avenue from the northernmost site driveway to
connect to the access driveway to facilitate a safer walking environment for pedestrians. The
design of the sidewalk and pedestrian ramps to be ADA compliant. It is noted that the new
signalized intersection at the site driveway will include a pedestrian phase to enable pedestrians to
safely cross. The crosswalk will be moved from its current location, as recommended by
MassDOT, to north of the access driveway. The sidewalk and new location of the crosswalk to be
shown on revised plans. Revised plans are to be submitted to the City Planner for review and
approval prior to issuance of a building permit for Walmart,
7. The applicant will contribute 575,000 to the City of Salem toward the cost of improvements to the
sewer pump station located on Highland Avenue in front of the site prior to the issuance of any
building permit.
8. A bus pull off, shelter and waiting area shall be incorporated into the site plan on Highland Avenue
in front of the Walmart project site for southbound buses. The pull off or turnout area for the bus,
which is the start of the right-turn lane into the site, shall be wide enough so as to allow all traffic
lanes on Highland Avenue to continuously flow once the bus comes to a stop. The applicant shall
work with the MBTA and MassDOT to obtain the necessary approvals, easements, etc. for
construction. Upon State approval(s), a specific site plan shall be submitted for review and
approval by the City Planner showing proposed amenities, such as a shelter, cart corral, and trash
receptacle as well as any changes to the parking field or landscaping of Walmart, if necessary. Bus
pull off and associated amenities to be constructed prior to the issuance of any Certificate of
Occupancy, assuming that all necessary State approvals are in place in a timely fashion, however in
no event will a non-issuance of approvals by the State delay the issuance of any Certificate of
Occupancy by the City.
9. Refuse removal, recycling, ground maintenance and snow removal shall be the responsibility of the
applicant, his successors or assigns.
10. The applicant, his successors or assigns shall be responsible for the maintenance and snowplowing
of the entrance drive connecting to Highland Avenue.
11. A Clerk of the Works will be required to oversee the construction work. The Clerk of the Works
shall be provided by the City, at the expense of the applicant, his successors or assigns.
I hereby certify that a copy of this decision and plans has been filed with the City Clerk and copies are
on file with the Plamring Board. The Special Permit shall not take effect until a copy of this decision
bearing the certification of the City Clerk that twenty(20) days have elapsed and no appeal has been
filed or that if such appeal has been filed, and it has been dismissed or denied, is recorded in the Essex
South Registry of Deeds and is indexed under the name of the owner of record is recorded on the
owner's Certificate of Title. The owner or applicant, his successors or assigns, shall pay the fee for
recording or registering.
Charles M. Puleo, Chair
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d
EXHIBIT A
TRAFFIC
The following findings include improvements proposed by the Applicant, all of which are
subject to approval by the Massachusetts Department of Transportation (MassDOT), who
has jurisdiction over these applicable portions of Route 107 (Highland and Western
Avenues) in both Salem and Lynn.
1. The existing main site driveway into Walmart will be closed.
2. A new site driveway providing full access/egress under traffic signal control with
optimized phasings and timings for the entire project will be provided.
3. The north site driveway into Walmart will be modified to provide proper curb
radii to current design standards.
4. Additional turning lanes and pedestrian accommodations at the new main
driveway will be provided.
5. Improvements to the Highland Avenue southbound merge area into the City of
Lynn will be provided by realigning the roadway, through the use of pavement
markings, and posted signs.
6. Western Avenue at Fays Avenue in Lynn will be slightly widened and re-striped
on the southbound approach to provide a through lane and an exclusive right-turn
lane.
7. New traffic signal equipment with optimized phasings and timings will be
installed at the Western Avenue/Fays Avenue intersection.
8. Western Avenue between Buchanan Circle and the existing Camp Lion driveway
will be re-striped to provide a two-way left-tum lane for left turns to/from the
residential streets.
9. The City of Salem Planning Board retained BETA Group, Inc. ("BETA") as its
peer review consultant on the traffic impacts and improvements associated with
this project as proposed by the Applicant.
10. BETA reviewed, in detail, the "Traffic Impact and Access Study for Submission
with EENF" proposed by the Applicant and prepared by the Applicant's traffic
consultant, Greenman-Pedersen, Inc. ("GPI").
11. BETA prepared a detailed comment letter, dated May 5, 2010, to the Traffic
Study submitted by the Applicant.
Exhibit A Page 1 of 5
12. In its comments and recommendations, BETA recommended, among other things,
that the following actions be undertaken by the Applicant:
a. Expand the study area along Route 107 further south into Lynn and further
north into Salem;
b. Provide additional automatic traffic recorder (ATR) counts along
Highland Avenue adjacent to the site to the City;
C. Evaluate the sight distances at the Highland Avenue/Camp Lion driveway;
d. Clarify calculations concerning Minimum Required Stopping Sight
Distance;
e. Revise the trip generation for the weekday AM peak hour.
13. In a Technical Memorandum dated September 2, 2010, GPI submitted a Response
to Comments memorandum that addressed each issue and recommendation made
by BETA, including implementation of the substantially expanded study area.
14. The City of Salem Department of Planning and Community Development
coordinated a meeting with MassDOT and invited both the Applicant and BETA
to attend to discuss the Applicant's proposed improvements on Route 107, a DOT
jurisdiction roadway("DOT Meeting').
15. Subsequent to the DOT Meeting, the Applicant, BETA and the Department of
Planning and Community Development reported to the Planning Board, at its
regularly scheduled meeting on January 6, 2011, that an engineering corridor
study along Route 107 between Swampscott Road and the Pep Boys traffic signal
was recommended by DOT, to be funded by the Applicant, to help determine
future improvements to Route 107.
16. The Applicant presented its proposed improvements, as revised, to the Planning
Board on January 6, 2011, including a two-way left-turn lane to be constructed
south of the Highland Avenue merge area, from the existing Camp Lion
driveway, along Western Avenue to Buchanan Circle in Lynn.
17. Extensive comments have been received by the Planning Board from the public,
including many residents of the abutting Lynn neighborhoods, concerning the
existing conditions along Route 107 between Fays Avenue and the project site.
18. All conditions, recommendations, revisions and changes to Route 107 proposed
by the Applicant and/or the Planning Board are subject to the approval of DOT
for this state highway.
Exhibit A Page 2 of 5
1 '
19. The Applicant will submit to ongoing DOT jurisdiction in the state-required
MEPA and MassDOT Section 61 processes for this project.
DRAINAGE
20. The Applicant has submitted an extensive Drainage Report entitled "Drainage
Report for proposed Planned Unit Development," dated November 23, 2010,
prepared by Tetra Tech Rizzo and Bohler Engineering, as well as plans in the
original Planned Unit Development ("PUD") Application and subsequent
Wetlands Flood Hazard District Special Permit Application,
21. The documents submitted addressed, among other things, the following:
Intermittent stream reconstruction;
Cross-sections of the existing stream;
- Pre-development Conditions Watershed Plan;
- Post-development Conditions Watershed Plan;
- Demolition Plan;
- Grading and Drainage Plan;
- Utility Plan.
22. The City of Salem retained the services of New England Civil Engineering Corp.
("NECE") for Peer Review Services to be provided to the Planning Board on
engineering and drainage matters for the project.
23. Upon its review of the submitted materials, as well as meetings with the
Applicant's engineers, NECE submitted extensive comments and
recommendations to the Board and Applicant on two separate occasions,
including, but not limited to the following areas:
a. Soils: Submittal of logs for test pits, borings and probes, for review.
b. Impervious Area. Applicant to submit acreage with itemized calculations.
C. Roof Runoff. Applicant to provide additional information on slope and
break lines of roof to confirm runoff to be collected.
d. TSS Removal. Applicant to revise TSS removal tables to reflect a
different method of street sweeping (a more conservative removal rate).
C. Water Quality Structures and Sizing.
f Hydraulic Capacity of Pipes.
Exhibit A Page 3 of 5
6 ;
g. Existing Drainage. Identify condition of structures in Route 107; expand
study area further into Lynn.
h. Maintenance.
i. Subsurface Infiltratior/Low Impact Development. Applicant to evaluate
alternatives.
j. Modifications to the existing-drainage inlet structure located along the
southeast property boundary to reduce the likelihood of clogging.
k. Existing Sanitary Sewer Pump Station. Coordination with City Engineer
required.
24. Through a series of meetings with NECE and presentation and submittals to the
Planning Board, the Applicant has addressed each of the issues raised by the
Board and its consultant, NECE.
25. Extensive public comment has been received by the Board during the public
hearings concerning the existing drainage and runoff conditions of the site and the
abutting neighborhoods in Lynn.
26. Based on public comments from neighbors and actual observation of the site area,
the Board finds that some flooding already occurs onto Route 107 and into the
Buchanan Circle neighborhood in Lynn.
27. The Board received extensive comment from various City of Lynn officials,
including officials from Lynn Water & Sewer Commission, confirming the
flooding that occurs in the existing pre-development condition.
28. The Applicant, working with staff from Lynn Water & Sewer Commission,
identified a stormwater pipe in the Buchanan Circle neighborhood that was
functioning improperly and contributing to the flooding conditions.
29. The Applicant presented information indicating that the project will have no
adverse impacts to the Spring Pond water supply in Peabody. This was reviewed
by NECE, which found their analysis to be reasonable and addressed the concerns
about potential contaminated runoff being directed to Spring Pond.
30. The Applicant, at the suggestion of the Board and NECE, incorporated "low
impact development' techniques in the form of above and below ground
stormwater infiltration areas for the Walmart store.
31. The applicant predicts that the Drainage Plans, as submitted, revised and
reviewed, will improve the existing, pre-development condition of the site and
Exhibit A Page 4 of 5
s
J
surrounding neighborhoods. NECE finds that the applicant's engineering work is
complete and thorough, and their analysis and predictions are reasonable.
Exhibit A Page 5 of 5
P
N
EXHIBIT B
Draft Scope of Work
Data Collection, Analysis and Conceptual Design of Alternatives:
Three Intersections on Route 107, Salem, Massachusetts
BACKGROUND
MassDOT and the City of Salem are interested in operational and potential geometric
improvements that would mitigate existing conditions and potential future impacts from the
new Lowe's and expansion of Walmart in Salem south of the three locations,just north of the
Lynn/Salem City Line.
This document outlines a scope of services to perform a traffic study for three signalized
intersections on Route 107 (Highland Avenue) in Salem, Massachusetts, as follows:
• Swampscott Road
• Marlborough Road/Traders Way
Pep Boys/Market Basket Plaza Driveways
The three intersections will be analyzed for operational issues (delays, traffic signal design,
and other deficiencies) and potential improvements requiring expansion into the existing
right-of-way or beyond it. Of particular interest are the first two intersections, which operate
in tandem as a pair carrying north-south volume between Swampscott Road and
Marlborough Road in both directions. This tandem causes a shifting of traffic within a
limited roadway segment on Route 107 causing merging and diverging of traffic with
associated delays and operational inefficiencies. In the case of geometric improvements at
this segment of Route 107 to connect for this problem, MassDOT is interested in developing
and reviewing conceptual AutoCAD plans drawn over existing layout plans.
OBJECTIVE
This study will identify traffic operational and geometric improvements to address
operational problems at three Salem signalized intersections, including developing
conceptual plans and identifying right-of-way requirements for the alternatives that include
geometric improvements.
WORK DESCRIPTION
d
Task 1 Perform Field Reconnaissance and Collect/Gather Data
Detailed data and information pertaining to each location will be collected. This will
involve visiting each site and inventorying all relevant geometric, land use, and signal
features. The three locations serve primarily Route 107 commuter trips and the shopping
plaza driveways, which may have different peaking characteristics. For this reason, data
collection will be done for weekday AM and PM peak hours and for Saturday midday. In
addition, data may have to be collected for the intersection of one of the plaza's
driveways with Route 107. Data will include:
• 2-hour manual turning movement counts (MTMCs) during the AM and PM peak
periods and midday(10 AM to 2 PM) Saturday
• 24-hour Automatic Recorder Counts (ATRs) (to be requested from MassDOT
Highway Division) at nine locations during three weekdays and a typical Saturday
Bicycle counts
• Pedestrian counts
• Transit vehicle counts
• Signal timing data (MassDOT to provide traffic signal plans to review existing
phases, timing lengths)
• Queue lengths
• Crash data, including copies of crash reports to develop crash diagrams
• Origin-destination pattern for Swampscott Road and Marlborough Road traffic by
performing a short license plate or other form of survey
• Geometric data (layout plans, lanes, curb cuts, sidewalks, crosswalks, pedestrian
buttons, transit amenities)
V Land use/zoning information
• Jurisdictional/administrative system responsibilities
Products of Task 1
Traffic flow diagrams, summaries of count, geometric, signal, and queue information,
origin-destination data and analysis, safety analysis and crash diagrams, as well as
land use and jurisdictional information, for the three intersections
Task 2 Evaluate and Analyze Intersections
Each intersection will be analyzed for capacity and delays analysis in order to determine
the operational level of service at each intersection. Particular attention will be given to
the evaluation of existing pedestrian signal phases; if any, or the need for them. Also, the
origin-destination (north-south) traffic pattern between Swampscott Road and
Marlborough Road will be identified in order to design effective traffic signal plans and
geometric improvements at the two intersections and the Route 107 segment between
them. Analysis of crash diagrams will reveal the type of safety concerns that exist in the
vicinity of the three intersections and the operational or geometric deficiencies that may
be lacking in in that area. Field observations will yield a full understanding of the
MassDOT Office of Transportation Planning Page 2 of 4 12/23/10
o.
operationsY of vehicles bicycles, and pedestrians at each location. In addition to field
observations, right-of-way plans will be reviewed, in case any minor widening or
additional turning lanes are required.
Products of Task 2
Reviews of traffic signal plans and right-of-way plans; summaries of existing
operational level of service for typical weekday AM and PM peak hours and for
midday Saturday, including delays and queues by lane group; assessment of safety
issues; assessment of north-south traffic volume pattern using the Route 107 segment
between Swampscott Road and Marlborough Road
Task 3 Develop Improvement Alternatives and Associated Costs
Based on the evaluation and analyses, potential improvement alternatives will be
developed. Potential improvements would include retuning, traffic signal design,
geometric improvements, traffic management, channelization, access management,
arterial coordination of the three signalized intersections, and assessment of traffic
control equipment for potential updates, and better processing of bus, pedestrian, and
bicycle traffic. The cost of each improvement option will be evaluated (excluding right-
of-way costs.) Conceptual geometric improvements will be drawn on existing layout
plans using AutoCAD. Analysis will be performed with 2016 (No-Build and Build)
volumes, including Wal-Mart and Lowe's generated traffic upon occupancy. In addition
to Wal-Mart and Lowe's trips, the 5-year growth rate will take into account an
appropriate background growth rate.
Product of Task 3
A summary of alternative improvements and associated present and future year
assessment; conceptual AutoCAD designs of potential geometric improvements; and
construction implementation costs, excluding right-of-way purchase, if any.
Task 4 Recommend Improvements
Based on the evaluation and analysis performed in Task 3, short- and long-term measures
to improve operations at the three intersections will be recommended
Product of Task 4
A summary of recommended operational improvements for.the three intersections
Task 5 Advisory Group Input
Study will include seeking advisory group input via presentations at meetings e-mail
exchanges, and telephone forms of interaction. The advisory group will consist of
MassDOT Office of Transportation Planning Page 3 of 4 12/23/10
MassDOT representatives from Office of Transportation Planning, Highway Division,
District 4, and others; City of Salem officials, and City of Salem consultants.
Product of Task 5
Preparation for meetings, including presentations, and other forms of interaction with
advisory group members
Task 6 Document All Findings and Recommendations
Staff will document all study tasks in a technical memorandum for MassDOT's review.
Product of Task 6
A technical memorandum documenting Tasks 1 through 5
ESTIMATED SCHEDULE
It is estimated that this project will be completed 14 weeks after the notice to proceed is
received.
S' E 4
MassDOT Office of Transportation Planning Page 4 of 4 12/23/10
I
TM
rECOURT OFrat.5SAl4S
CIVIC ACTION COVER SHEET � SiIPERIOft COUp"7 tPA R"TN1EN( DOC-(ET NO.
COLNTY:
TYPE ( I TY c>(wµ/ Pt A vnR Qo as YPE G / 7y
PLA,INTIFF(S) IyNO �t CEFENDANT(S)fl,//,( //N/V/x QB'A�d f
NAME ( YNH/ NAME
Type Plaintiffs Attorney name,Address,.City/State/Zlp Type Oefendan('s Attorney Nam Aodress, ity/Stale/Zi
Phone Number and BBC1 - Phone Number(If Known)
EoR9� S ,17W-"e0itoS �79SeSMIl-r 11 Z
3 Grry pVatsW
TYPE OF ACTION AND TRACK DESIGNATION(See reverse side) - -.
CODE NO. TYPE OF ACTION,(specify) TRACK - - IS THIS A JURY CASE?
No
G L.c 0
The following is a full, itemized and detailed statement of the facts on which plaintiff relies to determine
money damages. For this form,disregard double or treble damage claims; indicate single damages only
TORT CT AIMS
(Attach additional sheets as necessary)
A. Documented medical expenses to'date:
1. Total hospital expenses $
2. Total doctor expenses $
3. Total chiropractic expenses $
4. Total physical thera.pexpenses $
5. Total other expenses (ydesci'Ebe) S
Subtotal $
B. Documented lost wages and cornppensation to date . $
C. Documented property damages to dale $
D. Reasonably anticipated future medical expense
L. Reasonably-antiei gated lost wages and coin satiml to date. $_
F. Other documented items of damages (de -tbe) :.
$
G. Brief description of plaintiff's in y, including nature and extent of injury (describe)
Total g
CONTRACT CLAIMS
(Attach additional she ecessary)
Provide a detailed description.of claim($): ,
TOTAL $...............
PLEASE IDENTI ,BY CASE NUMBER,NAME AND COUNTY, ANY RELATED ACTION PENDING IN THE SUPERIOR
COURT DEPARTMENT
'7 hereby certify that l have complied with the requirements of Rule 5 of the Supreme Judlelal Court Uniform Rules on Dispule.Resolution(SJC
Rule 1:18)requiring that I provide my cli s y i.th information about court-connected dispute resolution services and cdcusswith then the
adyuitages and disadvantages of the '�
Sie alar,of Attorney of Record - Date: Z/:;" /Z m r/
A.O.S.C.3-2007 �( � S ---
CITY OF LYNN
LAW DEPARTMENT
Michael J.Barry T $ George S.Markopoulos
City Solicitor " c Q Asst.City Solicitor
vnaafl; Richard L.Vitali
Asst.City Solicitor
Room 406,City Hall
Lynn,Massachusetts 01901
(781)598-4000 Ext.6840
Fax(781)477-7043
February 7, 2011
DELIVERED IN HAND
Cheryl A. Lapointe, City Clerk
City Clerk's Office
93 Washington Street
Salem MA 01970
RE: STILIAN, ET AL.
VS: PULED, ET AL
NO: Zorl - 7 ZZA
Dear City Clerk:
Please be advised that the City of Lynn Planning Board and City of Lynn, did file a
lawsuit against the Planning Board of the City of Salem, the City of Salem and Kennedy
Development Group, Inc. today, February 7, 2011, pursuant to M.G.L. C. 40A Section
17, in the Essex County Superior Court.
I enclose a copy of the Cover Letter to the Superior Couto, Complaint and Civil
Action Cover Sheet for your records.
very truly yours,
George S. Markopoulos
Assistant City Solicitor
Encs.
xc: Elizabeth Rennard, City Solicitor
Joseph Correnti, Esquire
COMMONWEALTH OF MASSACHUSETTS
ESSEX,SS SUPERIOR COURT
CIVIL ACTION NO.2011-222A
ROBERT STILIAN,JAMES MAHONEY )
DAVID ANGELLI,PAUL PRICE,and )
STEPHEN UPTON,as they are members )
Of the City of Lynn Planning Board,THE )
CITY OF LYNN PLANNING BOARD AND )
THE CITY OF LYNN )
Plaintiffs )
VS. )
CHARLES PULED,RANDY CLARKE, )
MARK GEORGE, NADINE HANSCOM )
JOHN MOSTAKIS,TIM READY, )
TIMOTHY KAVANAUGH and )
HELEN SIDES, CHRISTINE SULLIVAN AS )
THEY ARE THE PLANNING BOARD OF )
THE CITY OF SALEM,AND NOT )
INDIVIDUALLY THE CITY OF SALEM )
AND THE KENNEDY DEVELOPMENT )
GROUP,INC. )
Defendants )
STIPULATION OF DISMISSAL
Pursuant to the provisions of Mass. R. Civ.P.41(a)(1)(ii),the plaintiffs hereby stipulate
to the dismissal of this action against the defendants, without prejudice. The parties waive any
award of interest, costs,attorneys' fees, and all rights of appeal. This includes the plaintiff's
notice of appeal filed in this Court on November 2,2011.
[remainder of this page is intentionally blank]
Respectfully submitted, Respectfully submitted,
The Plaintiffs, The Defendant,
Robert Stilian,James Mahoney, David Kennedy Development Group, Inc.,
Angelli,Paul Price and Stephen Upton, By its attorneys,
As they are Members of the City of Lynn
Planning Board,The City of Lynn Planning
Board,and the City of Lynn,
By their attorneys,
George S.6Arkopoulos,BBO#546189 Stephen 11. Oleskey, BBO#378615
Assistant City Solicitor Elizabeth Kent Cullen,BBO#670044
Lynn City Hall, Room 406 Willner Cutler Pickering Hale & Dorr, LLP
Lynn, MA 01901 60 State Street
(781) 596-4000,ext. 6840 Boston, MA 02109
(617) 526-6000
Respectfully submitted,
The Defendants, CERTIFICATE. OF SERVICE
Charles Puleo,Randy Clarke, Mark George, r that N hereby €;el�f,if�. t.lat a true copy of
Nadine Hanscom,John Mostakis,Tim Ready, the above i,,ocument was served
Timothy Kavanaugh,Helen Sides and Christine
upon 'the attorney of record for each
Sullivan as they are the Planning Board of the other party ori - and ons 211
City of Salem, and the City of Salem,
011(
By their attorneys,
Thomas R. Donohue,BBO#643483
Brody, Hardoon, Perkins & Kesten,LLP
One Exeter Plaza
Boston, MA 0211.6
(617) 880-7100
DATED: December 6, 2011
N
COMMONWEALTH OF MASSACHUSETTS
ESSEX,SS SUPERIOR COURT
CIVIL ACTION NO. 2011-222A
ROBERT STILIAN,JAMES MAHONEY )
DAVID ANGELLI,PAUL PRICE,and )
STEPHEN UPTON,as they are members )
Of the City of Lynn Planning Board,THE )
CITY OF LYNN PLANNING BOARD AND )
THE CITY OF LYNN )
Plaintiffs )
VS. )
CHARLES PULEO,RANDY CLARKE, )
MARK GEORGE, NADINE HANSCOM )
JOHN MOSTAKIS,TIM READY, )
TIMOTHY KAVANAUGH and )
HELEN SIDES, CHRISTINE SULLIVAN AS )
THEY ARE THE PLANNING BOARD OF }
THE CITY OF SALEM,AND NOT )
INDIVIDUALLY THE CITY OF SALEM )
AND THE KENNEDY DEVELOPMENT )
GROUP,INC. )
Defendants )
STIPULATION OF DISMISSAL
Pursuant to the provisions of Mass. R. Civ.P. 41(a)(1)(ii), the plaintiffs hereby stipulate
to the dismissal of this action against the defendants, without prejudice. The parties waive any
award of interest,costs,attorneys' fees,and all rights of appeal. This includes the plaintiff's
notice of appeal filed in this Court on November 2,201 L
[remainder of this page is intentionally blank]
Respectfully submitted, Respectfully submitted,
The Plaintiffs, The Defendant,
Robert Stilian,James Mahoney, David Kennedy Development Group,Inc.,
Angelli, Paul Price and Stephen Upton, By its attorneys,
As they are Members of the City of Lynn
Planning Board,The City of Lynn Planning
Board,and the City of Lynn,
By their attorneys,
George S. rkopoulos,BBO#546189 Stephen Tl. Oleskey, BBO#3786815
Assistant City Solicitor Elizabeth Kent Cullen, BBO# 670044
Lynn City Hall, Room 406 Wilmer Cutler Pickering Hale & Dorr, LLP
Lynn, MA 01901 60 State Street
(781) 596-4000,ext.6840 Boston MA 02109
(617) 526-6000
Respectfully submitted,
The Defendants, CERTIFICATE OF SERVICE
Charles Puleo, Randy Clarke, Mark George, N hereby ««t'tiy that a true copy of
Nadine Hanscom,John Mostakis,Tim Ready, the above i ii:+ Ment was served
Timothy Kavanaugh,Helen Sides and Christine upon the attorney of record for each
Sullivan as they are the Planning Board of the other party " ai - and on
City of Salem,and the City of Salem,
By their attorneys,
t l ri.tC2.V1 1Cz9 c]�
Thomas R. Donohue,BBO#643483
Brody, Hardoon,Perkins &Kesten, LLP
One Exeter Plaza
Boston,MA 02116
(617) 880-7100
DATED: December 6, 2011
�.
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'�.
�OND1Tq
CITY OF SALEM, MASSACHUSEM
DEPARTMENT OF PLANNING AND
�Inlvt�Neh COMMUNITY DEVELOPMENT
KIMBERLEY DRISCOLL
MAYOR 120 WASHINGTON STREET ♦ SALEM,MASSACHUSETTS 01970
TELE:978-619-5685 ♦ FAX:978-74o-0404
LYNN GOONIN DUNCAN,AICP
DIRECTOR
3/16/11
Dear Planning Board members:
I am enclosing a copy of an Open Meeting Law complaint we received (relating to Lowe's), which
Beth Rennard's office is responding to.
Yours truly,
Danielle McKnight
CITY OF LYNN R CE IVE-
LAW DEPARTMENT FEB 28 2011
A DEPT OF PLVNP ING r
Michael J.Barry T $ George S.Markopoulos
City Solicitor Asst.City Solicitor
a� Richard L.Vitali
Asst.City Solicitor
Room 406,City Hall
Lynn,Massachusetts 01901
(781)598-4000 Ext.6840
Fax(781)477-7043
February 25, 2011
Ms. Cheryl A. Lapointe, City Clerk
Salem City Clerk's Office
Salem City Hall
93 Washington Street
Salem, MA 01970
Charles Puleo, Chairman
City of Salem Planning Board
120 Washington Street
Salem, MA 01970
Ticar Madam City Clerk:
Enclosed please find an Open Meeting Complaint Form relative to the Salem Planting
Board. Kindly respond to such a Complaint as prescribed by Massachusetts General Laws
Chapter 30A and the rules and regulations promulgated by the Massachusetts Attorney General's
Office
Should you have any further questions, please do not hesitate to contact this office.
Very truly y urs,
Michael J. arry
City Soli for
Enc.
OPEN MEETING LAW COMPLAINT FORM
Office of the Attorney General
One Ashburton Place
Boston, MA 02108
Please note that all fields are required unless otherwise noted.
Your Contact Information:
First Name: Michael Last Name: Barry
Address: Law Department,3 City Hall Square
City: Lynn State: MA Zip Code:01901
Phone Number: +1 (781)586-6840 EM.
Email: lynncitysolicitor@hotmail.com
Organization or Media Affiliation(if any): City of Lynn
Are you filing the complaint in your capacity as an individual,representative of an organization,or media?
(For statistical purposes only)
Individual Organization ❑ Media
Public Body that is the subject of this complaint:
0 City/Town ❑County ❑Regional/Distrix State
Name of Public Body(including city/
town,county or region,if applicable): City of Salem Planning Board
Charles Puleo,John Moustakis,Randy Clarke,Nadine Hanscom,Mark George,
Specific person(s),if any,you allege Tim Kavanaugh,Tim Reddy,Christine Sullivan,Helen Sides
committed the violation: p
Date of alleged violation: Jan 1,2010
Page 1
Description of alleged violation:
Describe the alleged violation that this complaint is about.If you believe the alleged violation was intentional,please say so and include
the reasons supporting your belief.
Note:This teat field has a maximum of 3000 characters.
See Attached Complaint filed in Essex Superior Court. The City of Salem Planning Board failed to provide statutory
notice to all parties in interest. A member of the Salem Planning board stated that the project was a"done deal"prior
to the conclusion of the public hearings.
What action do you want the public body to take in response to your complaint?
Note:This text field has a maximum of 500 characters.
Rescind vote to approve special permits for Lowes/Wamart/Meineke
Review,sign,and submit your complaint
Read this important notice and sign your complaint.
Under most circumstances your complaint will be considered a public record and be available to any
member of the public upon request.
I understand thatwhen I submitthis complaint the Attorney General's Office cannot give me legal advice and cannot
act as my personal lawyer.
I certify that the information contai on thorm is true to the best of my knowledge.
Signed: �— Date: Z S
L N
ForeByPlr ody , ForUseeyA"G0�
Date,Rec�rvedbyP,ubllcBod� DateReiervedbyAGO ;
�,
Paget °* �-c, s „ . ,c
CITY OF LYNN
LAW DEPARTMENT
A
Michael J.Barry r $ George S.Markopoulos
City Solicitor f ;" Asst City Solicitor
Richard L Vital!
Asst City Solicitor
Room 406,City Hall
Lynn,Massachusetts 01901
(781)598-4000 EXL 6840
Fax(761)477-7043 -
February 10, 2011
DELIVERED IN HAND
Cheryl A. Lapointe, City Clerk
City Clerk's Office
93 Washington Street
Salem MA 01970
RE: STILLAN, ET AL.
VS: PULEO, ET AL
NO: 2011-222A
Dear City Clerk:
Please be advised that the City of Lynn Planning Board and City of Lynn, did file a
First Amended Complaint and Jury Demand against the Planning Board of the City of .
Salem, the City of Salem and Kennedy Development Group, Inc, today, February 10,
2011, in the Essex County Superior Court, a copy of which is.attached hereto.
Very truly yours,
George S: Markopoulos
Assistant City Solicitor
Encs.
xc: Elizabeth Rennard, City Solicitor
i Joseph Correnti, Esquire .
� k
CITY OF LYNN
LAW DEPARTMENT
A 1 �
Michael J.Barry r '$ - George S.Markopoulos. -
City Solicitor .c •" Asst.City Solicitor
Richard L.Vitali
Asst City Solicitor
Room 406,City Hall -
Lynn,Massachusetts D1901
(781)596-4000 Ext 6640
Fax(761)477-7043
February 10, 2011
DELIVERED IN HAND
Essex County Superior Court
Clerk's Office
34 Federal Street
( Salem MA 01970
RE: STILIAN, ET AL.
VS: PULEO, ET AL
NO: 2011-222A
Dear Clerk:
Enclosed please find for filing:
1. First Amended Complaint and Jury Demand.
2. Certificate of Service.
:. Very truly Yours,
George S. Markopoulos
Assistant City Solicitor
Encs.
xc: Elizabeth Renard, City Solicitor
Joseph Correnti, Esquire
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS SUPERIOR COURT
CIVIL ACTION NO: 2011-222A
ROBERT STILIAN, JAMES MAHONEY, )
DAVID ANGELLI, PAUL PRICE AND )
STEPHEN UPTON,AS THEY ARE MEMBERS )
OF THE CITY OF LYNN PLANNING BOARD, )
THE CITY OF LYNN PLANNING BOARD AND )
THE CITY OF LYNN )
Plaintiff )
V.
CHARLES PULED, RANDY CLARKE, )
MARK GEORGE, NADINE HANSCOM, )
JOHN MOSTAKIS, TIM READY, )
TIMOTHY KAVANAUGH AND HELEN SIDES )
CHRISTINE SULLIVAN )
AS THEY ARE THE PLANNING BOARD OF ) .
THE CITY OF SALEM, AND NOT INDIVIDUALLY)
THE.= OF SALEM )
AND KENNEDY DEVELOPMENT GROUP, INC. )
Defendants )
FIRST AMENDED COMPLAINT AND JURY DEMAND
1. Robert .Stilian'is a member of the City of Lynn Planning Board with a
business address, Lynn City Hall, 3 City Hall Square, Lynn, MA 01901.
2. James Mahoney is a member of the City of Lynn Planning Board with a
business address, Lynn City Hall, 3, City Hall Square, Lynn, MA 0 190 1.
3. David Angelli is a member of the City of Lynn Planning Board with a
business address, Lynn City Hall, 3 City Hall Square, Lynn, MA 0 190 1.
4. Paul Price is a member of the City of Lynn Planning Board with a business
address, Lynn City Hail,3 City Hall Square, Lynn, MA 01901.
1of16
5. Steven Upton is a member of the City of Lynn Planning Board with a
business address, Lynn City Hall, 3 City Hall.Square, Lynn, MA 01901.
6. The City.of Lynn is a municipal corporation duly organized under the laws
of the Commonwealth of Massachusetts
7. The Lynn Planning Board is a municipal agency duly created under the
laws of the Commonwealth of Massachusetts.
8. Kennedy Development Group, Inc. is a Massachusetts Corporation duly
organized under the laws of the Commonwealth of Massachusetts with a principal place
of business located at 500 Broadway, Everett, MA 02149. .
9. The Kennedy Development Group, Inc. is a developer intending to
construct a large commercial development at 440, 460, 462 and 488 Highland Avenue,
Salem, Massachusetts (hereinafter referred to as "the proposed commercial
development").
10. Defendants Charles Puleo, Randy Clarke, Mark George, Nadine Hanscom,
( Timothy Kavanaugh, John Moustakis, Tim Ready, Helen Sides and Christine Sullivan are
members of the City of Salem Planning Board
11. The residential addresses of the members of the Salem Planning Board are
as follows:
Chuck Puleo, Chair, 5 Freeman Road, Salem, MA 01970
John Moustakis, Vice Chair, 23 Dearborn Street, Salem, MA 01970
Randy Clarke, 19 Bentley Street, Salem, MA 01970
Nadine Hanscom, 10 Bay View Circle, Salem, MA 01970
Mark George, 26 Settlers Way, Salem, MA 01970
Tim Kavanaugh, 14 May Street, Salem, MA 01970
Tim Reddy, 22 Sable Road, Salem, MA. 01970
Christine Sullivan, 111 Federal Street, Salem, MA .01970
Helen Sides, 35 Broad Street, Salem, MA 01970
12. The City of Salem is a municipal corporation with a business address of 93
Washington Street, Salem, Massachusetts. .
13. Upon information and belief, in and around 2008, the City of Salem entered
into negotiations with the developer to encourage the proposed commercial development.
14. As. of 2008, the proposed commercial development was not zoned in a
manner which would allow the construction of a Lowes/Super Walmart at that site.
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15. At the request of the Mayor, the City of Salem initiated a zoning change
that was designed specifically to allow the proposed commercial development project as
a matter of right.
16. The City of Salem subsequently adopted such a zoning change that
facilitated the proposed commercial development proj ect as a matter of right.
17. Upon information and beliefs the City of Salem did not provide the
statutorily required notice to abutters and parties in interest as defined by Massachusetts
General Laws Chapter 40A prior to adopting said zoning change.
18. Upon information and belief, the Mayor of the City of Salem entered into
negotiations with the developer to arrange for a land swap to facilitate the proposed
commercial development proj ect.
19. As part of these secret negotiations, the developer agreed to construct a
water tower for the use of the residents of the City of Salem at significant cost.
( 20. Upon information and belief, the water tower is intended to be used to
promote a facilitate the construction of hundreds of newly constructed homes near the
site by a private developer.
21. Upon information and belief, the City of Salem though its elected and
appointed officials wished to promote the construction of this large subdivision by
demanding a concession that the developer of the proposed commercial development
proj ect construct such a water tank.
22. Upon information and belief, the water tank will substantially reduce the
cost of constructing.the proposed residential homes and developing the area near the site.
of the proposed commercial development project.
23. As Mayor of the City of Salem, the Mayor is the appointing authority for
the members of the Salem Planning Board.
24. Prior to the submission of applications to the City of Salem Planning
Board, the Mayor and other municipal officials publically spoke in favor of the proposed
development proj ect.
25. The proposed development project is located on Route 107 (Highland
Avenue) and is in close proximity to the City of Lynn.
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26, The only public ingress/egress to the proposed project development is
proposed to be Route 107, a residential street which is shared by Lynn and.Salem and
Magnolia The plan proposes no other.public ingress or egress.
27 Belleaire Avenue as shown on the maps and plans of the City of Lynn
immediately abuts the proposed commercial development project and the City of Lynn
has a property interest therein.
28. Bellaire Avenue is a public way within the City of Lynn.
29. Belleaire Avenue is not fully constructed and still consists of a "paper"
street with one buildable lot.
30. The "paper" portion of Bellaire Avenue extends into Salem prior to
returning to intersect with Pays Ave in Lynn.
31. Due to the current dead end length of Bellaire Avenue this paper section of
Bellaire Avenue is necessary toconform to City of Lynn Planning Board Rules and
Regulations Section V]TA. 4. - Dead End Street which limits the length of a dead end .
! street to one thousand feet.
32. Failure to complete the roadway would require this roadway to be further
extended beyond the thousand foot length required in the Rules and Regulations
necessitating a waiver from the Planning Board.
33. The City of Lynn Planning Board had previously approved a subdivision
Mod by the Bellaire Avenue Realty trust to allow the construction of residential homes on
a newly created Apple hill Lane. .
34. The City of Lynn Planning Board continues to retain jurisdiction over the
Apple Hill Lane subdivision as the project has not yet been completed.
35. The Apple Hills Subdivision is a sixteen lot residential subdivision of
single family homes.
36. Seven of the lots have homes constructed or under construction within this
subdivision which is still under the City of Lynn. Planning board. jurisdictions and
supervision.
37. The Planning Board has a performance guarantee in the amount of
$227,325 for the proper and timely completion of this subdivision.
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.38, The proposed commercial development project abuts this subdivision and
its construction as proposed will impact the ability of the developer to sell these lots and
complete this project in a timely fashion due to the disruptive impacts of this commercial
development directly abutting these residential lots including privacy, noise and light not
normally found within a single family home residential subdivision.
39. The balloon test performed was not viewed by the Lynn Planning Board or
the Apple Hills Developer nor did either have the ability to participate in the design or
location of the proposed sound/screening wall.
40. The proposed hours of the truck deliveries and their associated noise will
violate the City of Lynn's noise ordinance which restricts similar noise generating
activities in Lynn.
41, Route 107 is a Massachusetts State Highway which connects the City of
Salem and the City of Lynn.
42, At or near the City line separating the City of Salem and the City of Lynn,
Route 107, changes from a four lane roadway (two in each direction) to a two lane
( roadway (with one lane of travel in each direction).
43. In and around 2010, the developer filed an application with the Salem
Planning Board under.Section 7.3, Planned Unit Development and Section 9.5, Site Plan
Review, of the City of Salem Zoning Ordinance.
44. The proposed project included a new Lowe's Home Improvement retain
store, a new expanded Walmart store, expanded Meineke Store, improvements to Camp
Lion, and a new municipal water tank.
45. Charles Puleo is the Chaimmm of the City of Salem Planning Board.
46. Chairman Puleo owns commercial property located at/or near 376 Highland
Avenue, Salem, Massachusetts.
47. Chairman Puleo served as Chairman of the Salem Planning Board during
numerous public hearings held relative to the developer's application.
48. As Chairman, Mr. Puleo controlled the agenda, selected which members of
the public could speak at the hearing and established procedures limiting.the amount of
speakers and time allotted to such speakers during the numerous public hearings.
49. Upon information and belief, Chairman Puleo had a fnancial interest in the
allowance of the proposed development project as the project would likely result in an
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increase to patrons of business/commercial uses including a retail food establishment and
a credit union own, managed, leased and/or operated by Chairman Puleo.
50, The Mayor of the City of Salem incorrectly permitted Chairman Puleo to
deliberate and vote on the subject petitions given his obvious financial interest.
51. Chairman Puleo's business uses, including s credit union will be the closest
banldng institution to the proposed commercial development proj ect.
52. Chairman Puleo's restaurant or the restaurant he leases will be the closest
food establishment which serves breakfast.
53. Chairman Puleo's restaurant or the restaurant he leases will be the closest
drive thru restaurant/dining establishment to the proposed development project.
54, The proposed commercial development project will substantially increase
the number of patrons to businesses owned, managed and/or leased by Chairman Puleo.
55. Upon information and belief, the Mayor of the City of Salem permitted
Chairman Puleo to deliberate and vote on the matter based upon her public support of the
project.
56. Public hearingg were held on March 18, April 1, April 15, May 6, May 20,
June 3, June 17, July 15, September 16, September 20, October 21, November 18,
December 2, December 16, 2011 and January 6 and 13, 2011.
57. On June 17, 2010, the City of Salem Planning Board opened a public
hearing under section 8.1, Wetlands and Flood Overlay District of the City of Salem
Zone Ordinance.
58. At the present time, numerous residents of the City of Lynn experience
flooding and drainage runoff which emanates from the site of the proposed development
project, specifically the proposed site of the new Lowe's Home Improvement retail store.
59'. The proposed commercial development as described in the plans and maps
does not comply with the City of Salem Master Plan and good zoning practice as is
required by Section 7.3.1 of the City of Salem Zone Ordinance.
- 60. The proposed commercial development is not compatible with the surround
area, including, but not limited to conservation land located in the City of Lynn which
immediately abuts the proposed project site.
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61. The proposed commercial project does not contain a minimum of the lesser
of sixty thousand (60,000) square feet or five (5) times the minimum lot size of the
zoning district it is in as required by Section 7.3.2 of the City of Salem Zone Ordinance.
62. During the public hearings, the Developer failed to offer evidence as to the
means that would be employed to protect the abutting property and the health, welfare
and privacy enjoyed.thereon as is required by Section 7.3.3 (2) of the City of Salem Zone
Ordinance.
63. The proposed commercial project will significantly injure the health, safety,
welfare andprivacy of current and future abutting property owners, including but not
limited to property owners of Bellaire Avenue which immediately abuts the property.
64. Purported balloon tests conducted by the developer were flawed from an
engineering perspective and did not adequately predict the site line and visual impacts of
the proposed commercial development
65. The purported balloon tests were not adequately publicized to allow the
Plaintiff and the residents of the City of Lynn to monitor the site line and visual impacts
( of the proposed commercial development.
66. The proposed commercial project would cause significant negative visual
impacts to residential property in the City of Lynn.
67. A proposed 15 foot high sound/screening wall to be constructed behind the
proposed Lowe's Home Improvement retail store would be insufficient to protect the
health, safety, welfare and privacy of abutting properties and to residents of the City of
Lynn.
68. The proposed 15 foot high sound/screening wall is insufficient to alleviate
increased noise and the negative visual impact of the proposed commercial project.
69. The proposed 15 foot sound/screening wall is insufficient to alleviate or
eliminate the noise and visual issues expected to be experienced by abutting Lynn
residential neighborhood development.
70. The proposed commercial project will threaten the health, safety, welfare
and privacy of the abutting Lynn residential property owners.
71. The proposed planned unit development is not in harmony with the purpose
and intent of the City of Salem Zone Ordinance and the Master Plan of the City of Salem.
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72. The proposed commercial project is not sufficiently advantageous to tender
it appropriate to depart from the normal requirements of the Business Park District.
73. The proposed commercial project will have a significant negative impact as
it will result in loss of open space, nature trails and will adversely impact conservation
land and wetlands.
74. The proposed commercial project will result in a significant increase in
traffic, particularly upon Route 107 in Lynn which threatens the health, safety, welfare
and privacy of the City of Lynn and its residents.
75. The proposed commercial project will generate no tax revenue to the City
of Lynn and will likely result in a reduction in property tax revenue from residential
properties near the proposed site.
76. The proposed commercial project will require significant removal of trees
and shrubbery near the City of Lynn line.
77. The removal of trees and significant blasting will threaten and injure the
( health, safety, welfare and privacy of the City of Lynn and its residents.
78. The drainage issues which currently emanates from the site will be
exacerbated by the proposedcommercial proj ect.
79. In contradiction to the mandates of the Salem Zoning Ordinance and the
City of Salem Master Plan, on January 13, 2011, the Defendant Salem Planning Board
unanimously found that the proposed project met the provisions of Section 7.3, Planned
Unit Development, of the City of Salem Zone Ordinance and approved Site Plan Review,
Planned Unit Development Special Permit and Wetland and Flood Hazard District
Special Permit.
80. As a condition to the Special Permit, the Salem Planning Board required
the developer to provide approximately $100,000 for studies and peer reviews for traffic
mitigation.
81. The proposed commercial project will have a far greater negative impact
upon the City of Lynn.
. 82. Nevertheless, the Salem Planning Board imposed no conditions and
required no financial expenditures for traffic mitigation in the City of Lynn.
83. The Salem Planning Board did not seek or receive input from the City of
Lynn Planning Board relative to traffic mitigations in the City of Lynn.
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84. The Salem Planning Board imposed conditions relating to traffic design at
intersections lying solely in the City of Lynn without seeking or obtaining input from the
City of Lynn Planning Board and the City of Lynn Department of Public Works.
.85. The conditions imposed by the Salem Planning Board with respect to the
redesign of intersections lying whole in the City of Lynn will not promote the health,
safe and welfare of the residents and visitors of Ci of L and will have adverse
safety City Y�
financial and other implications upon the City of Lynn as they relate to traffic,drainage
and public safety.
86. Despite the fact that residents of the City of Lynn are presently far more
impacted by drainage issues emanating from the site, the Salem Planning Board required
the developer as a condition of the Special Permit to contribute more money to the City
of Salem to alleviate drainage and storm water issues that the amount required to be
contributed to the City of Lynn.
87. The decision of the Salem Planning Board was filed with the City Clerk's
Office on January 18, 2011.
88. In January, 2011, the City of Salem Zoning Board of Appeals denied a
petition to locate a methadone clinic on Route.107 in Salem.
89 The Notice of Decision filed by the Salem Zoning board of Appeals states
that the proposed methadone clinic would generate unneeded traffic and would
negatively effect the neighborhood as a result of such increased traffic.
90. Upon information and belief, the methadone clinic would generate far less
traffic than the.proposed commercial development.
91. The methadone clinic was proposed to be sited at a location where Route
107 had four lanes of travel, two in each direction.
92. The proposed commercial development is located near the site where Route
107 narrows to two lanes of travel at the Lynn/Salem border.
93. Katerina Panagiotalds and Calvin Anderson are two, Lynn residents who
appeared at many of the hearings before the City of Salem Planning Board to speak in
opposition the proposed commercial development project. (See Affidavits attached as
Exhibit B and C, respectfully).
94. During their appearances at one of these hearings in or around fall of 2010,
Salem Planning Board member Tim Ready had occasion to speak with Calvin Anderson
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and Katerina Panagiotakis in a hallway following the meeting. See Affidavits attached as
Exhibits B and C,7espectfully).
95, At the conclusion of the hearing, Mr. Ready motioned with his finger that
he would like to speak with Katerina Panagiotakis and Calvin Anderson privately in the
hallway. (See Affidavits attached as Exhibit B and C, respectfully).
96. Katerina Panagiotakis and Calvin Anderson subsequently had a
conversation outside of the earshot of those appearing and participating in the hearing,
including the developer and its counsel. (See Affidavits attached as Exhibit B and C,
respectfully).
97. Mr. Ready re ested that Katerina Panagiotakis
� Pana 'otakis and Calvin Anderson
change our opposition to the project and instead support the project, because [we] would
not win." (See Affidavits attached as Exhibit B and C, respectfully).
98. Mr. Ready stated to Katerina Panagiotakis and Calvin Anderson that "You
are very good in what you say and are very persistent, but will not win on this. It is better
if you ask them what they [the developer] or this project can do for you instead." (See
Affidavits attached as Exhibit B and C, respectfully).
99. Mr. Ready indicated that the outcome was a foregone conclusion. (See
Affidavits attached as Exhibit B and C, respectfully).
100. 1& Ready stated that the project would proceed ahead "one way or
another." (See-Affidavits attached as Exhibit B and C, respectfully).
101. This conversation occurred prior to the conclusion of all public hearings
relating to the project. (See Affidavits attached as Exhibit B and C, respectfully).
102. Katerina.Panagiotakis and Calvin Anderson left that conversation with Mr.
Ready certain that Na. Ready and the Salem Planning Board had already determined that
the project was going to be approved. (See Affidavits attached as Exhibit B and C,
respectfully).
103. The City of Lynn and the City of Lynn Planning Board are persons
aggrieved by the decision of the Salem Planning Board
104. A certified copy of said decision is dated January 18, 2011 is attached
hereto as "Exhibit A."
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105: The City of Lynn and the Lynn Planning Board have satisfied all conditions
precedenf as required by MasS.R.Civ.Pro. 9(c) in bringing this litigation pursuant to
M.G.L. c. 40A, Sec. 17.
106. The decision of the Salem Planning Board is based upon the legally
untenable interpretation of the Salem Zone Ordinance and the Salem Master Plan.
107. Said decision of the Salem Planning Board is based upon legally untenable
grounds, is whimsical, capricious or arbitrary, has insubstantial basis in fact and is an
abuse of discretion by said Board.
108. Said decision of the Salem planning Board fails to give a requisite
statement of reasons or make findings of facts to support the denial of granting of Special
Permits.
109. Defendant Salem Planning Board wrongfully applied the provisions of the
Massachusetts General Laws as amended and the City of Salem Zone Ordinance and City
of Salem Master Plan,
110. Said decision of the Salem Planning Board exceeds the authority of the
Salem Planning Board.
COUNT 1 - DECISION OF SALEM PLANNING BOARD IS ARBITRARY AND
CAPRICIOUS (M.G.L. c. 40A, s. 17).
111. The plaintiffs repeat and reallege the allegations contained in paragraphs
One through One Hundred Ten as if fully stated herein.
112. The decision of the Salem Planning Board is arbitrary, capricious and not
supported by the evidence proffered during public hearings and exceeds the authority of
the Planning Board.
COUNT 2- - DECISION OF THE SALEM PLANNING BOARD LACKS
SPECIFIC FINDINGS
113. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred Twelve as if fully stated herein.
114. The decision of the Salem Planning board lacks specific findings as is
required by the City of Salem Zone Ordinance, the City of Salem Master Plan and
Massachusetts General Laws Chapter 40A.
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COUNT 3 -VIOLATION OF M.G.L. 40A, s. 5
115. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred Fourteen as if fully stated herein.
115. In or around 2008, the City of Salem voted to amend its Zone Ordinance
with specific application to the site of the proposed commercial project.
116. Upon information and belief, the City of Salem did not comply with the
requirements of M.G.L. c. 40A, s. 5 when adopting -said amendments to the Zone
Ordinance.
117. Upon information and belief,the City of Salem did not provide notice to all
persons and boards as is required by M.G.L. c. 40A s. 5.
118. As a result of the City of Salem's failure to comply with M.G.L. c. 40A, s.
5, the purported Zoning amendments permitting the proposed commercial development
project should be annulled-
COUNT 4 - SPOT ZONING
119. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred Eighteen as if fully stated herein.
120, The amendments to the City of Salem Zone Ordinance constitute unlawful
spot zoning as the amendment applied solely to parcels relating to the site of the proposed
commercial project.
121. The Defendant City of Salem failed to provide proper notice of the
amendments to the City of Salem Zone Ordinance as is required by M.G.L. c. 40A, s. 5.
122. The purported amendment to the Salem Zone Ordinance effecting the site
of the proposed commercial project should be found to be null and void as the
amendment constitutes spot zoning.
COUNT 5 - VIOLATION OF M.G.L. C. 268A
123. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred Twenty-two as if fully stated herein.
124. Charles Puleo is the Chairman of the City of Salem Planning Board.
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125, As Chai_rmarn, Mr. Puleo controlled the agenda and established and
enforced procedures relating to the public hearings.
126. Chairman Puleo determined the number of individuals who would be
allowed to speak on a given subject and the order thereof..
127. Chairman Puleo determined the amount of time that the Salem Planning
Board would devote to the matter at each public hearing thereon.
128. Chairman,Puleo owns and/or has a financial interest in property which is in
close.proximity to the site of the proposed commercial project.
129. It is agreed by the.all parties that the proposed commercial development
will result in increased traffic along Route 107.
130. The expected increase in traffic along with the influx of construction
workers, employees and shoppers will likely result in an increase of need and
consumption of food and banking services.
i 131. It is reasonably foreseeable and likely that Chairman Puleo will experience
an increase in business at his retail food/dairy establishment and banking institutions
located at 370 and 376 Highland Avenue.
132. M.G.L. c. 268A prohibits a municipal-employee to participate in any matter
where it is reasonably foreseeable that the employee has a financial interest in the matter.
133. Chairman Puleo aadvely.participated in the petition of the developer and
controlled and influenced debate.
134. Chairman Puleo should have recused himself from this matter given his
personal financial interest in the granting of the special permit.
135, The Mayor of the City of Salem should not have determined that Chairman
Puleo's financial interest was such that would render him to be impartial in participating
in this matter. . .
COUNT 6 - OPEN MEETING LAW VIOLATION
136. The plaintiffs repeat and reallege the allegations contained in paragraphs
One through One Hundred and Thirty-five as if fully stated herein.
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137. Upon information and belief, neither the developer nor the City of Salem
Planning Board provided proper notice to all parties in interest and abutters to the project
as is required by M.G.L, c. 40A.
138. As a result of the failure to comply with statutory notice requirements, the
decision of the Salem Planning Board should be annulled.
139. Statements made by Planning Member Tim ready confirm that he had
determined to vote to approve the subject commercial development project prior to the
conclusion of the public hearings.
140. 1& Ready stated that opponents to the project should attempt to elicit
concession, financial and otherwise for the City of Lynn.
COUNT 7 - PLANNING BOARD LACKS JURISDICTION TO ISSUE
CONDITIONS WITH RESPECT TO LAND LYING SOLELY IN THE CITY OF
LYNN
141. The plaintiffs repeat•and reallege the allegations contained in Paragraphs
One through One Hundred and Forty as if fully stated herein.
142. The decision of the Salem Planning Board requires the developer to
undertake the redesign of certain intersections why lie solely within the City of Lynn.
143. Prior to imposing such conditions, the Salem Planning Board did not
consult with the City of Lynn Planning Board, the City of Lynn Fire Department or the
City of Lynn Department of Public Works.
144. Said traffic conditions have a direct impact.upon the residents and visitors
of the City of Lynn.
145. The Salem Planning Board lacks jurisdiction to require certain traffic
alterations over land which does not lie within the City of Salem.
COUNT 8 - VIOLATION OF DUE PROCESS RIGHTS
146. The plaintiffs repeat and reallege the allegations contained in Paragraphs
One through One Hundred and Forty-five as if fully stated herein.
147. The City of Salem, through its Mayor and elected and appointed officials
negotiated with the developer for several years prior to the granting of a special permit.
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148. The City of Salem, by and through its appointed and elected officials
negotiated a land swap with the developer prior to the filing of an petitions to complete
the proposed commercial project.
149. The City of Salem, by and through its elected and appointed officials,
negotiated the construction of a water tower for the benefit of the residents of Salem.
150. The City of Salem, by and through its elected and appointed officials
proposed and adopted amendments to the City of Salem Zone Ordinance solely for the
purpose of allowing the proposed commercial development as a matter of right.
151. The Mayor of the City of Salem is the appointing authority for members of
the City of Salem Planning Board.
152. Upon information and belief, certain members of the Salem Planning Board
are hold-over appointments as their terms have expired.
153. Upon information and belief, these members were not re-appointed prior to
the vote on this matter as a means to ensure that the special permit would be granted.
154. The Mayor of the City of Salem was a vocal proponent of the proposed'
commercial project and actively campaigned and negotiated with the developer prior to
the filing of the instant applications for permits.
155. Thousands of individuals signed petitions in opposition to the proposed
commercial project and submitted such opposition to the Salem Planning Board.
156. Hundreds of individuals appeared at public hearings, before the Salem
Planning Board in opposition to the proposed commercial project.
157. The great weight of the evidence presented to the Salem Planning Board .
demonstrated that the application for permits did not comply with the Salem Zone
Ordinance and the Salem Master Plan.
158. The public hearings and subsequent deliberations were predetermined prior
to the commencement of the hearings themselves.
159. The hearings were merely a sham in an attempt to comply with the hearing
requirements mandated by the Salem Zone Ordinance and Massachusetts General Laws
Chapter 40A.
160 City of Salem Planning Board member Tim Ready publically revealed that
the project was going to be approved one way or another."
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161. 1& Ready advised opponents of the project from Lynn to support the
project and attempt to gain concessions, financial and otherwise, from the developer.
162. Mr. Ready made these statements prior to the conclusion of the public
hearings.
Wherefore the Plaintiffs City of Lynn and the City of Lynn Planning Board pray
that this Honorable Court, pursuant to M.G.L. c. 40A, s. 17 and the Court's general
equity power:
1. Enter an order annulling said decision of the City of Salem Planning Board
dated January 18, filed in the office of the City Clerk on January 18,2011.
2. Enter an Order that the City of Salem Building Department refrain from
issuing any building permits relating to the project.
3. Grant the Plaintiffs their attorney's fees, costs and expenses.
4. Grant such other and further relief as the Court may deem just and proper.
JURY DEMAND
The Defendant City of Lynn and Lynn Planning Board hereby demands a trial by
jury on all triable issues of fact.
The City of Lynn
The City of Lynn Planning Board
By their Attorney
George S. Markopoulos, Esquire
Assistant City Solicitor
Lynn City Hall, Room 406
Lynn, MA 01901
BBO#546189
(718) 596-4000 Ext. 6840
Dated: February 10, 2011
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Exhibit "A"
C
CITY OF SALEM
PLANNING BOARD
Site Plan Review, Planned Unit Developmew€Spelalert, s.
and Wetland and Flood Hazard District Special Permit Decision
4409 460, 462, and 488 HIGHLAND AVENUE (Map 3,Lots 1, 2, 3 and 4)
January 18, 2011
Kennedy Development Group, Inc.
C/o Joseph Correnti,Esq.
Serafni, Darling & Correnti
63 Federal Street
Salem, MA 01970
( RE: Lowe's Home Improvement retail store, new, expanded Walmart store, expanded Meineke store,
Camp Lion improvements and new municipal water tank
Site Plan Review/Planned Unit Development
On Thursday, March 18, 2010, the Planning Board of the City of Salem opened a Public Hearing under
Section 7.3, Planned Unit Development, and Section 9.5, Site Plan Review, of the City of Salem
Zoning Ordinance, at the request of Kennedy Development Group, Inc., for the properties located at
440, 460, 462, and 488 HIGHLAND AVENUE (Map 3, Lots 1, 2, 3 and 4). The proposed project
includes a new Lowe's Home Improvement retail store, a new, expanded Wahnart.store, expanded
Meineke store, improvements to Camp Lion, and a new municipal water tank.
The Public Hearing was continued to April 1, 2010, April 15, 2010,May 6, 2010, May 20, 2010, June
3, 2010, June 17, 2010, July.15;2010; September 16, 2010, September 30, 2010, October 21, 2010,
November 18,2010, December 2, 2010,December 16, 2010, January 6, 2011, and January 13, 2011.
On Thursday, June 17, 2010, the Planning Board of the City of Salem opened a Public Hearing under
Section 8.1, Wetlands and Flood Hazard Overlay District (WFHOD), of the City of Salem Zoning
Ordinance, at the request of Kennedy Development Group, Inc., for the property located at 488
HIGHLAND AVENUE (Map 3, Lot 1). The proposed project includes a new Lowe's Home
Improvement retail store. The Public Hearing was continued to July 15, 2010, September 16, 2010,
September 30, 2010, October 21, 2010, November 18,.2010, December 2, 2010, December 16, 2010,
January 6, 2011,and January 13, 2011.
The Planning Board,after numerous public hearings and review of submitted materials,hereby makes
the following "Findings of Fact", attached as Exhibit A and hereby incorporated as part of this
decision.
The Planning Board also hereby finds that the proposed proj act meets the provisions of the City of
Salem Zoning Ordinance, Sec. 7.3 Planned Unit Development, as follows:
1) 7.3.1 Purpose-The proposed Planned UnitDevelopment(PUD), which incorporates retail,
municipal and outdoor recreational uses,meets the.purpose and intent of the Zoning Ordinance and
Master Plan'-of the City.of Salem:
2) 7.3.2 Applicability—The proposed development parcel is significantly greater than 60,000 square
feet in area . The tniderlying zoning districts of the proposed development parcel are BPD
(Business Development) and.B-2(highway Business District), each of which are eligible
districts for�UD'treatment.
3) 7.3.3 Uses.—The proposed uses, including retail,municipal, and outdoor recreation, are allowed in a
PUD development. .
• 7.3.3.2 THE Applicant has submitted detailed engineering and architectural specifications,
including drawings; photographs, and photo-simulations of the means that will be employed to
protect aliuttirigpropeities mboth Salem and Lynn. Specifically:
oTfie pplicarit conduballoor test wherabyballoonswere floated at strategic
locations at the height of the proposed Lowe's building. Photographs taken from
numerous locations at ground level show sight impacts to be minimal from existing
residential neighbbrhioods''
( o A 15-foot high sound/screming wall will be constructed behind the proposed Lowe's
building,
o The proposed sound/screening wall will serve as a noise and visual buffer between the
Lowe's building and loading docks and the abutting Lynn residential development;
o The proposed sound/screening wall, along with the existing and proposed landscaping
buffer between Lowe's and the abutting Lynn residential development, will serve to
protect thehealth, safety, welfare and privacy of the residential development;
o The elimination of the existing Camp Lion driveway, a revision to the originally
submitted plans, has increased the buffer between the residential neighborhood in Lynn
and the proposed Lowe's building.
o The proposed Walmart loading docks to the rear will be located over 400 feet from the
neatest residential abutter with significant differences in elevation and a continuing
landscape buffer, which will serve to protect the health, safety, welfare and privacy of
the abutting residents;
o Walmart has agreed to limit truck deliveries to its building to the hours of 6:00 a.m. to
12:00 a m , with no overnight deliveries between 12:00 a.m. (midnight) and 6:00 am.
7.3.3.3 —In the Business Park Development district,residential uses and associated
improvements cannot exceed 50% of the land area of the parcel. There are no residential uses
proposed.
4) 7.3.8 Decision
• 7.3.8.1 - The proposed planned unit development is in harmony with the purposes and intent of
This Ordinance and the master plan of the City of Salem and it will promote the purpose of this
section by:
7
a) Providing for a comprehensive, planned approach to commercial,,municipal, and
recreational development of adjacent parcels on Highland Avoird..Th6 propoged PUD will
eliminate several existing curb cuts along Route 107 and coordinate traffic through a newly
created signalized drive into the site that will be utilized by each of the proposed uses.
b) In addition to providing vehicular access for the City of Salem water tower and the Camp
Lion outdoor recreational facility, the proposed PUD will coordinate utilities access to each
of the proposed'useg.
c) Providing for appropriate economic development on an existing commercial condor,
thereby generating tax revenue and creating jobs.
7.3.8.2 - The mixture of uses in the planned unit development is determined to be sufficiently
advantageous to render it appropriate to depart from the normal requirements of tfia districts..
Specifically, the project incorporates a mixture of commercial, municipal, and recreational uses;
providing substantial public benefit.
7.3.8.3 - The planned unit development would not result in a net negative environmental
impact. Specifically,
a) Tj*proposed PUD requites the cutting of existing trees and blasting on site, but also
includes the planting of over 1,000 new trees and shrubs on site.
b) The Applicant predicts that the Drainage Plans, as submitted;revised and reviewed, will
improve the existing pie-development condition of the site and surrounding,neighborhoods:
in regard to drainage. The Applicant's engineering work is complete and thorough; and
their analysis and predictions are reasonable.
c) The Applicant presented information indicating that the project will have no adverse
impacts to the Spring Pond water supply in Peabody. Their analysis is reasonable and
satisfactorily addresses the concerns about potential contamination runoff being directed to
Spring Pond.
d) THe proposed PUD incorporates Low Impact Development (LID)techniques for Walmart.
e) The proposed PUD incorporates energy-saving and greenhouse gas initiatives for the
proposed buildings.
The Planning Board hereby makes the following findings pertaining to the Wetlands and Flood Hazard
District Special Permit Application:
1. The proposed uses comply in all respects with the Zoning Ordinance and-parlicularly the PUD
section of the Ordinance.
2. Portions of the site are located within. the Wetlands District, as defined in the Zoning
Ordinance.
3. The proposed development does not include the storage of salt, chemicals or petroleum
products, other than those materials packaged, stored and handled for retail sale and stored
within the buildings and stored within the buildings and an above-ground double-walled fuel
tank with interstitial leak detection monitoring, that is attached to and serves as the fuel supply
for the emergency generator serving the Lowe's store.
4. The floor levels of areas to be occupied by workers will be four feet or more above the seasonal
high water table with no basement floor level being constructed in any building.
I-
. 5. The project will be serviced by City.sewer. There will be no on lot septic system.
6. The Drainage Plans and design, as k6grided,will improve the water storage capacity of the site
and protect against pollution and contamination of such water supply and wetlands.
At a special meeting of the Planning Board held on January. 13, 2011, the Planning Board voted by a
vote of nine (9) in favor(Charles.Moo,Johni oust .i ,Randy Clarke,.Nadide Hanscom,Mark
George, Tim Kavanaugh, Tim Readq,:Christine Sullivan;Helen Sides), a3 danone'(0) opposed to
approve the Site Plan Review;Planner.Umt Developmen't:Srpecial Permit,and Wetland and Flood
Hazard District Special Permit, subject to the follpwingconditions:
1. Conforivanne with the Plan -
Work shall conform to tfii plans entitled,."Planned,Unit Development Application:Proposed
L.owe's — melm'-. . ncnt Center, Wal-Matt andMemeke Expansions;'City of Salem Water
Storage Tank and Futut Canip:Laon J�proverx�euts FJightand Avenue, Salem Massachusetts,"
prepared r Kennedy Development. :pup prepgred by Matra Tedi Rizzo and Buhler Engineering
dated Febnmry 19, 2010 ind.iast revised October i8, 2p.1=0, and page C-2; Site Plan, and page C-5,
Landscape Plan„last revised7Jacembet;l5, ::Z010;.And the plan entitled "Proposed Screening Wall,
Salem,. " dated January f3, 201:x,�sl om7ing additional planting on the south side of the site.
2. Amendments.
Any amendments to the site plan shall be reviewed'by the City Planner and if deemed necessary by
the City Planner, shall be brought to the Planning Board. Any waiver of conditions contained
within shall squire the approval of the Planning Board.
3. Constrnetion Practices
All construction shall be carried out in accordance with the following conditions:
a. Alrprovisions in the City of Salem's Code of Ordinance, Chapter 22, Noise Control, shall be
strictly adhered to.
b. All reasonable action shall be taken to minirm o the negative effects of construction on abutters.
Advance notice shall be provided to all abutters in writing at least 72 hours prior to commencement
of demolition.6nd construction of the project.
C. Drilling`and blasting-shill be limited to Monday-Friday between 8:00 AM until 5:00 PM. Theme
shall be no drilling,blasting or rock hammering on-Sa sysi Sundays; or holidays. Blasting shall
be undertaken in accordance with all local and state regulations.
I All construction vehicles shall be cleaned prior to leaving the site so that they do not leave dirt
and/or debris on surrounding roadways as they leave the site.
e. All construction shall be performed in.accordance with the Rules and Regulations of the
Planning Board, and in accordance with any and all rules, regulations and ordinances of the City of
Salem.
f. All construction vehicles left ovemight at the site, must be located completely on the site
g. All construction activities shall be in accordance with the "Salem Police Station Construction
Management Plan".
h. All sidewalks, roadways, utilities, landscaping, etc. damaged during construction shall be
replaced or repaired to their pre-construction condition, or better.
i. A Construction and Management Plan is to be submitted to the City Planner for appropriate
distribution to Salem departments and the City of Lynn.
4. Fire Department
a. Ali work shall comply with the requirements of the Salem Fire Department. The locations of all
fire liydrants shall be approved by the Fire Department prior to the issuance of any building
. permit..
5. Sandi glnspector.
All work shall comply with the requirements of the Salem Building.Inspector.
6. Bdard of Health.
All work sliall comply with the Board of Health decision and conditions dated October 13, 2010:
a. The individual presenting the plan to the Board of Health must notify the Health Agent of
the name,address, and telephone number of the project(site) manager who will be on site
and directly responsible for the construction of the project.
b., If'i DEP,tracking number is issued for this site under the I-Iassachusetts Contingency Plan,
no structure sliatlbe constructed until the Licensed Site Professional responsible for-the site
meets the DEP standards for the proposed use,
` c. A copy of the Licensed Asbestos Inspector's Report must be sent to the Health Agent.
- r
d. A copy of the Demolition-Notice sent to the DEP,Form.B'WPAO6,must be sent to the
i
Health Agent:
e. The'developershall give the Health Agent a copy of the 21E report.
f. The developer shall adhere to a drainage plan as approved by the City Engineer.
g. The developer shall employ a licensed pesticide applicator to extortainate the area prior to
construction, demolition, and/or blasting and shall;send a copy of the exterminator's invoice
to the Health Agent.
h. The developer shall maintain the area free from rodents throughout construction.
i. The developer shall submit to the Health Agent a written plan for dust control and street
sweeping:which will occur during construction.
j. The developer shall submit to the Health Agent a written plan for containment and removal
of debris,vegetative waste, and unacceptable excavation material generated during
demolition and/or construction.
k. The Fire Department must approve the plan regarding access for fire fighting.
1. Noise levels from the resultant establishment(s) generated by operations, including but not
limited to refrigeration and heating, shall not increase the broadband sound level by more
than 10 dB(A) above the ambient levels measured at the property line and as further
interpreted in the MA Department of Environmental Protection noise pollution policy and
310 CMR 7.10 .
z •
( m. The developer shall disclose in writing to the Health Agent the-origin of any fill material
needed for the proj act.
n. The resultant establishment shall dispose of all waste'materials resulting from its operation
in an environmentally sound manner as descrilied to the Board of Health.
o. The drainage system for this proj ect.must be reviewed and a6roved by the Northeast
Mosquito Control and Wetlands Mani agemant District.
p. Proposed food establishments must have their plans reviewed by the Health Agent prior to
their build-out.
q. The developer shall notify the'Health Agent when the project is complete for final
inspection and confirmation that above conditions have been met.
7. Utilities
a. Utility installation shall be reviewed and approvedby the City Engineer prior to the issuance of
any Building Permit The applicant shall have an engineer.aertify-the utility plans for review by
the City Engineer,prior to the issuance of any Building Permit.
b. All electrical utilities for the site shall be underground-
8. Department of Public Services
( The applicant, his successors or assigns shall comply with all requirements of the Department of
Public Services.
9. Lighting
Is. No light shall cast a glare onto adjacent parcels or adjacent rights of way.
b.A final lighting plan shall be submitted to the City Planner for review and approval prior to the
issuance of any building permit.
c. After installation, lighting shall be reviewed and approved by the City Planner, prior to the
issuance of any Certificate of Occupancy.
10. HVAC
If an HVAC unit is located on the roof or site, it shall be visually screened. The method for
screening the unit shall be submitted to the City Planner for review and approval prior to
installation.
11. Noise
HVAC units shall be sufficiently buffered and the applicant shall take steps to further mitigate
noise emanating from the HVAC units(s) if the Board of Health receives any complaints.
12. Landscaping
a. All landscaping shall be done in accordance with the approved set of plans; detailed landscaping
plan for the plan entitled "Proposed Screening Wall" dated January 13, 2011, is to be submitted to
the City Planner for review and approval prior to issuance of any building permit
b. Maintenance of all landscaping shall be the responsibility of the applicant, his successors or
assigns. The applicant, his successors or assigns, shall guarantee all trees and shrubs for a two- (2)
year period
F
C. Any streettrees re. moved_as a.result of construction shall be replaced. The location of the trees
shalTSi,kppro'Oedby the City Planner pirpr to replanting.
d. Final completed capingl shall be subject to approval by the City Planner prior to the
issuance of a Certificate of(Diccupancy.
f3. Maintenance:.
a Refusesemoval recycling, ground maintenance and snow removal shall be the responsibility of
the deveiope his successors or assigns.
b. Winter snow is excess of snow storage areas on the site shall be removed off site.
14. As-built Plans
a.. As-bult Plans, stamped by a Registered Professional Engineer,.shall be submitted to the
Deparpn€i#,.of Planning.and Community Development and Department of Public Services prior to
the issvznbe:of any Certifficate of,,Occupancy.
b. The AsQ$uilt plans shall be submitted to.the City Engineer in electronic file format suitable for
the City's use and approved by the City-Engineer, prior to the issuance of any Certificate of
Ocenpancpc_:tr,� `
c. A cg. letedtie card,,'a blaak:copy` available at the Engineering Department) and a certification
signed au stamped by the design engineer, stating.that the work was completed in substantial
comphance vv%th 11he design drawing must be submitted to the City Engineer:prior'to the issuance of
any Certificate of Occupancy, as well as, any subsequent requirements by the City Engineer.
15.Violations
Violations of any condition contained herein shall result in.revocation of this permit by the Planning
Board, unless the violation of such condition is waived by a majority vote of the Planning Board.
16. Special Condifions:
1. ,Traffic.
a. Applicant agrees•to provide up to $75,000 to MassDOT to undertake a study for the data
collect5on,:analysis and conceptual design of three intersections on Route 107 in Salem for the
purpose ofideatifying alternatives for traffic mitigation for the intersections at Swampscott
Road, Marlborough Road/Trader's Way, and Pep Boys/Market Basket Plaza Driveways. (Sea
Exhibit B.) Further, the applicant agrees to provide $17,000 to the City of Salem for traffic
engineering peer review related to this study. Said funds to be provided to MassDOT and the
City of Salem,respectively,prior to issuance of any building permit.
b.. Applicant agrees to design and implement an exclusive right-tum lane on the Western
Avenue Southbound approach to Fays Avenue in Lynn, subject to the approval of MassDOT. In
addition, applicant will replace the existing traffic signal equipment and have traffic signal
timing changed to increase the amount of"green time'provided to the Western Avenue
approaches during each signal cycle, subject to the approval of MassDOT. Applicant is to
coordinate with/obtain necessary approvals from MassDOT.
c. It is noted that as a potential alternative to address traffic concerns identified in the City of
Lynn, the applicant is proposing a two-way left turn lane on Western Avenue from Buchanan
Circle to (approximately) the current location of the Camp Lion driveway. This reference is
included herein to acknowledge that this alternative could be a requirement of MassDOT as part
of the MEPA review process. It is not a condition of approval of the Salem Planning Board.
d. Air tiaffic and roadway improvements shall be implemented as approved By:the State prior
to thessuance of any Certificate of Occupancy.
e. Lowe's and Wahn are required to'each join he North Shore Transportation.l,? gement
Association(TMA) for a minimum period of three;.yeats. Me oost for such members:.' .shall be
based on rates in effect at the time of tliis.approval.Payment for the t]ireeyearmemtiefship to
be madeprior to the issuance of any Certificate of Occupancy.
2. Stormwater Management
a: : Applicant to inspect existing stbrmwater management.system within.tH6 llmitg of the
proposed Highland Avenue improvements during con"sructiot!to identify say catcli.hasins; .
rnanjiole%.or stormwater pipes that do not appear to beIfunciioniag properly Catch Basins,
manholes, and stormwater gapes found to be in need of cleamrig,repay,,,or replacement or,:
that-differ from the conditions identified on the existing.conditions sisvey{ smalle"r
diameter pipe than shown on the pleas) are to be ieptiirted to the Salem Qify. gmear and`_"
NLass T prior to any action being taken` Said catch basins;manholes„��stormvvate;pipes
w ll"becleaned repaired; oireplaced'subject to.the approval of MasibO"I s;part of the
project improvements; Evaluation and'cleaiiing to specifically include the catch basin at.the_'
outlet to the wetland located at.th'e'southeast.property'bouridary, which-is located .
approximately ten feet off kiigland Avenue:
( b. Future developments at the Camp Lion facility must not'exceed.the impervious areas.:shown
on the approved plans itr order to'mteeMassachusetts:Stormvvater guidelines. Furtheore,
development of the camp site shall include stormwater treatment measures as stated in the
project Drainage Report, dated November 23, 2010.
c.. Applicant is to submit an Operation and Management Plan for the stormwater management
systemdescribin the frequency ofp_eaning
(at_least twice per year);and maintenance of. _
the system, clearly defining the responsible panty for maimenanoe,priorlo;the issuance of
any building permit.
d The applicant is to contribute $60,000 prior to issuance of any Ceriificite.of Occupancy to
the-City of Lynn to be used by the City of Lynn'toward drainage improvements; specifically
.including repair or replacement of a stormwater pipe identified in the Buchanan Circle
neighborhood that is functioning improperly and contributing to flooding conditions in that
neighborhood, as identified in Paragraph 28 of Exhibit B attached hereto.
3. Deliveries to Waimart to be limited to the time period between 6 a.m. and 12 am. (midnight)
consistent with cusent store operations. <
4. Details, specifications,-and design calculations for the retaining wall at Lowe's, including color, to
be submitted to the City Engineer and City Planner for review and approval prior to start of
construction.
5. Specifications for the sound barrier/screening wall, including color, located to the rear of the
Lowe's store, are to be submitted to City Planner for review and approval prior to start of
construction
a
6. A sidewalk is to be constructed along Highland Avenue from the northernmost site driveway to
connect to the access driveway to facilitate a safer walkng`environment for pedestrians. The
design of the sidewalk and pedestrian ramps to be ADA compliant. It is noted tha$the new
signalized intersection at the site driveway will include a pedestrian phase to enable pedestrians to
safely cross. The crosswalk will be moved from its oitr ent location,'as recommended by
MassDOT,to north of--' access driveway. Ilie sidewalk and new location of the crosswalk to be
shown on revised-pl'an's'.` Revisedplans are to be submitted to the City Planner for review and
vat nor to.issuatice of a buildin f"
approval P g pemut for VJalmart
7. The applicant will contiiliutb $73,000'to the City of Salem toward the cost of improvements to the
sewer pump-station located on fiighiand Avenue in front of the site prior to the issuance of any
building permit
8. A bus pull ofF shelter and waiting area shall,be incorporated into:the site plan on Highland Avenue
in front of the.Nalmart;prof ect site,for southbAnd Mises,.The pull off or turnout area for the bus,
which is the staftof the right-turn lane info the site;shall be vhide enoughh so as to allow all traffic
lanes: on ghTand Avenue to cgntinu''usiy flo*.once tlib bus.comes to a stop. The applicant shall
work with the MBTA•aAd MasaDOT to robfain the nedessary approvals, easements, etc. for
construction: Upori State#proval(s);a specific site plan shall be submitted for review and
approval by the City Planner showing propo`sed amenities,:such as a shelter, cart corral, and trash
receptacle as well as any changes to the parking 5eldor landscaping of Walmart; if necessary. Bus
pull off and associated-amenities to be constructed prior to the issuance`of any Certificate of
Occupancy, assuming that all necessary State approvals are in place in a timely fashion;however in
no event will anon-issuance of approvals by the State delay the issuance of any Certificate of
Occupancy by the City.
9. Refuse removal,recycling, ground"maintenance and snow removal.shall be the responsibility of the
applicant, his successors or assigns.
10. The applicant, his successors or assigns shall be responsible for the maintenance and snowplowing
of the entrance drive connecting to Highland Avenue.
11. A Clerk of the Works will be required to oversee the construction work. The Clerk of the Works
shall be provided by the.City, at the expense of the applicant,his successors or assigns.
I hereby certify that a copy of this decision and plans has been filed with the City Clerk and copies are
on file with the Planning Board. The Special Permit shall not take effect until a copy of this decision
bearing the certification of the City Clerk thattwenty(20) days have elapsed and no appeal has been
filed or that if such appeal has been filed, and it has been dismissed or denied, is recorded in the Essex
South Registry of Deeds and is indexed under the name of the owner of record is recorded on the
owner's Certificate of Title. The owner or applicant,his successorsor assigns, shall pay the fee for
recording or registering.
CL,&� -P-
Charles M.'Puleo, Chair
Tj.Y. .
_.I
EDIT A
TRAFFIC
The following findings include improvements proposed by the Applicant, all of which are
subject to:approval by the Massachusetts Department of Transportation(MassDO'I),.who
has jurisdiction over these applicable portions of Route 107 (Iiighlant} and Western
Avenues)in both Salem and Lynn.
1. The existing mainsite driveway into Walmart will be closed.
2. A new site driveway.providing full access/egress under traffic signal control with
optimized phasings and timings for the'entire:proj ect will be provided.
3. The north site driveway into Walmart will be modified toprovide proper curb
radii to current design standards.
4. Additional turning lanes. and pedestrian accommodations at the new main
driveway will.be provided
5. Improvements to the fTghland Avenue southbound merge area into the. City of
Lynn will be provided by realigning the roadway, through the use of pavement
markings, and posted signs.
6. Western Avenue at Fays Avenue in Lynn will be slightly widened and re-striped
. on the southbound approach to provide a through lane and an exclusive right tam
lane.
7. New traffic signal equipment with optimized phasings. and timings will be
installed at the Western Avenue/Fays Avenue intersection.
8. Western Avenue between Buchanan Circle and the existing Camp Lion driveway
will be re-striped to provide a two-way left-turn lane for left tams to/from the
residential streets.
9. • The City of Salem Planning Board retained BETA Group, Inc. (`BETA'D as its
peer review consultant on the traffic impacts and improvements associated with
this project as proposed by the Applicant.
10. BETA reviewed, in detail, the "Traffic Impact and Access Study for Submission
with EENF" proposed by the Applicant and prepared by the Applicant's traffic
consultant, Greenman-Pedersen, Inc. ("CiPr').
11. BETA prepared a detailed comment letter, dated May 5, 2010, to the Traffic
Study submitted by the Applicant.
12. In its comments and recommendations,BETA recommended, among other things,
that the following actions be undertaken by the Applicant:
a. Expand the study area along.Rout&107 further south into,Lynn and further
north into Saleml,
b. Provide additional automatic . traffic. recorder (ATR) counts along
Highland Avenue adjacent to the site t6 the City;
c. Evaluate the sight distances'at the Highland Avenue/Camp Lion driveway;
d. Clarify calculations concerning Minimum . Required Stopping Sight
Distance; .
C. Revise the trip generation for the weekday AM peak hour:
13. In a Technical Memorandum dated September 2, 2010,:GPT submitted a Response
to Comments memorandum tliat addressed each issue and recommendation made
by BETA, including implementztion of the substantially expanded sxpdy area.
14. The City of Salem Deparhnent.' of Planh ng and Community Development
coordinated a meeting.with MassDOT and invited both the Applicant and BETA
to attend to discuss the''A.pplicant's proposed improvements on Route 107, a DOT
jurisdiction roadway("DOT Meeting'.
15. Subsequent to the DOT Meefing, the Applicant, BETA and the Department of
Planning and Community Development reported to the Planning Board, at its
regularly scheduled meeting-on,, January 6, 2011, that an engineering corridor
study along Route 1.07 between Swampscott Road and the Pep Boys traffic signal
was recommended by DOT, to be funded by the Applicant, to help determine
futureimprovemems to Route 1107.
16. The Applicant presented its proposed improvements, as revised, to the Planning
Board on January 6, 2011, includingg-a two=way left-turn lane to be constructed
south, of the Highland Avenue merge area, from the existing Camp Lion
driveway, along Westem Avenue to Buchanan Circle in Lynn.
17. Extensive comments have been received by the Planning Board from the public,
including many residents of the abutting Lynn neighborhoods, concerning the
existing conditions along Route 107 between Pays Avenue and the project site.
18. All conditions, recommendations, revisions and changes to Route 107 proposed
by the Applicant and/or the Planning Board are subject to the approval of DOT
for this state highway.
19. The Applicant will submit to ongoing DOT jurisdiction in. the state-required
MEPA and MassDOT Section 61 processes for this project.
DRAINAGE
20. The,Applicant has submitted an extensive Drainage Report entitled "Drainage
Report for proposed Planned Unit Development,". dated November 23, 2010,.
prepared by Tetra Tech Rizzo,,and. Bohler Engineering, as well as plans in the
original Planned Unit Development CTUD'� Application and subsequent
*atlands Flood Haii d District Special Permit Application.
21. The documents submitted addressed, among other things, the following.
Intermittent stream reconstruction;
Cross-sections of the existing stream;
Pre-development Conditions Watershed Plan;
Post-development Conditions Watershed Plan;
Demolition Plan;.
Grading and Drainage Plan;
Utility Plan.
22. The City of Salem retained the Services of New England Civil Engineering Corp.
('NECE') for Peer Review Services to be provided to the Planning Board on
engineering and drainage matters for the project.
23. Upon its review of the submitted materials, as well as meetings with the
Applicant's engineers, NECE submitted extensive continents and
recommendations to the Board and Applicant on two separate occasions,
including, but not limited to the following areas:
a. Soils: Submittal of logs for test pits, borings and probes, for review.
b. Impervious Area Applicant to submit acreage with itemized calculations.
C. Roof Runoff. Applicant to provide additional information on slope and
-break lines of roof to confirm runoff to be collected.
d. TSS Removal. Applicant to revise TSS removal tables to reflect a
different method of street sweeping(a more conservative removal rate).
e. Water Onality Structures and Sizine.
f. Hydraulic Capacity of Pipes.
:1
I
g. Existing Drainage. Identify condition of structures in Route 107; expand
study area further into Lynn.-
h. Maintenance.
i. Subsurface. Infiltration/Low Impact Development. Applicant to evaluate
_ alternatives.
j. Modifications to the existing drainage inlet stivcture<located along the
southeast property boundary to reduce the likalihood of clogging.
h Existing Sanitary Sewer Puma Station Coordination with City Engineer
required.
24. Through a series of meetings with NECE and presentation and:submittals to the
Planning Board, the Applicant has addressed cacti of the issues raised by the
Board and.its consultant,NECE.
25. Extensive public comment has been received by the Board during the public
hearings concerning the existing drainage and runoff conditions of the site and the
abvfting neighborhoods in Lynn:
26. Based on public comments from neighbors and actual observation of the site area,.
the Board finds that some flooding already occurs onto Route 107 and into the
Buchanan Circle neighborhood in Lynn.
27. The Board received extensive comment from various City- of Lynn officials,
including-..officials from Lynn-Water & Sewer Commission, cont ening .the
flooding thaf•occurs in the existing pre-development condition;
28. The Applicant, worldng with staff from Lynn Wafer.& Sewer Commission,
identified a stonmwater pipe in the Buchanan Circle neighborhood that was
functioning improperly and'contributiug to the flooding conditions.
29. The Applicant presented information indicating that the project will have no
adverse impacts to the Spring Pond water supply in Peabody. This was reviewed
by NECE, which found their analysis to be reasonable and addressed the concerns
about potential contaminated runoff being directed to Spring Pond.
30. The Applicant, at the suggestion of the Board and NECE, incorporated "low
impact development" techniques in the form of above and below ground
stormwater infiltration areas for the Walmart store.
31. "The applicant predicts that the Drainage Plans; as submitted, revised and
reviewed, will improve the existing, pre-development condition of the site and
sui �g neighborhoods: INECE finds that the applicant's engineering work is
complete and thorough,`and tfieir analysis and predictions are reasonable.
. - —EXIM1T- B
Draft Scope of Work
Data Collection;Analysis and Conceptual Design of Alternatives':.
Three_Intersectioais on Route 107; Sakur, Massachusetts
13ACKGROUND
IvlassDOT"*the City of Salem are interested.in operational and'potentia7 geometric
improwements:that would mitigate,existing conditions and potential fatureimpae'ts from the
new.I owe's and 'expansion of Walmart'in Salemsouth of the three locations,just north of the
Lynn/Sal`em City Line.
This document outlines a scope of services to perform a traffic study for three signalized
intersections on Route 107(Highland Avenue) in Salem, Massachusetts, as follows:
• Swampscott Road
• Marlborough Road/Traders Way
• Pep Boys/Market Basket Plaza Driveways
The three intersections v✓ill be analyzed for operational issues (delays; traffic signal design,
and other deficiencies) and potential improvements requiring expansion into the existing
right-of-way or beyond it. Of particular interest are the first two intersections,.which operate
in tandem as a pair carrying north-souff volume between Swampscott Road and
Marlborough Road in both directions. This tandem causes a shifting of traffic within a
limited roadway segment on Route 107 causing merging and diverging of traffic with
associated delays.and operational inefficiencies'. In the case of geometric improvements at
this segment of Route 107 to correct for this problem, MassDOT is interested in developing
and reviewing conceptual AutoCAD plans drawn over existing layout plans.
OBJECTIVE
This study will identify traffic operational and geometric improvements to address
operational problems at three Salem signalized intersections, including developing
conceptual plans and identifying right-of-way requirements for the alternatives that include
geometric improvements.
WORK DESCRIPTION
OL J
Task 1 Perform Field Reconnaissance and Collect/Gather Datx
Detailed data and information pertaining to each location will be collected. This will
involve visiting:each site and inventorying all relevant geometric,land use, and signal
features.The three locations serve primarily Route 107 commuter trips and the shopping
plaza driveways; which may have different.peaking characteristics. For this reason, data
collection will be done for weSkday AM and PM peak Hours and for Saturday midday. In
addition;data may have tor be'coliected for the intersection of one of the plaza's
driveways with Route 107. Data will include:
• 2-hour manual turning movement counts (MTMCs) during the AM and PM peak
Periods and.midday'(10 Alvi to 2 PM) Saturday
24-46urAiitomatin.Recorder Counts (ATRs) (to.be-"requested from'MassDOT
Highway Division) at nine locations during three weekdays and a typical Saturday
• Bicycle counts
•• Pedestrian Counts
• 'Transit vehicle counts
• Signal'liming.data (MassDOT to provide traffic signal plans to review existing
phases, timing lengths).
• eue lengths
gths
• Crash:.data, including copies of crash reports to develop crash diagrams
• Origin-destination pattern for Swampscott Road and Marlborough Road traffic by
performing a short license plate or other form of survey
• Geometric data(layout plans; lanes, curb cuts, sidewalks, crosswalks,pedestrian
Muttons, transit amenities)
• Land use/zoning.infor.mation, . .
• Jurisdictional/administrative.system responsibilities
Products ofTask.7
Traffic flow diagrams, summaries of count, geometric, signal, and queue information,
origin-destination data and analysis, safety analysis and crash diagrams, as well as
land use and jurisdictional information, for the three intersections
Task 2 Evaluate and Analyze Intersections
Each intersection will be analyzed for capacity and delays analysis in order to determine
the operational level of service at each intersection. Particular attention will be given to
the evaluation of existing pedestrian signal phases, if any, or the need for them. Also, the
origin-destination(north-south)traffic pattern between Swampscott Road and
Marlborough Road will be identified in order to design effective traffic signal plans and
geometric improvements at the two intersections and the Route 107 segment between
them.Analysis of crash diagrams will reveal the type of safety concerns that exist in the
vicinity of the three intersections and the operational or geometric deficiencies that may
be lacking in in that area. Field observations will yield a full understanding of the
• �__±�.�m nJ_G _1'T �� _ Tl n _LA "n/nn/"n
operations of vehicles,bicycles, and pedestrians at each location. In addition to field
observations, right-of-way plans will be reviewed, in case any minor widening or
additional turning lanes are required.
Products of Task 2
Reviews of traffic signal plans and right-of-way plans; summaries of existing
operational level of service for typical weekday AM and PM peak hours and for
midday Saturday, including delays and queues by lane group; assessment of safety
issues; assessment of north-south traffic volume pattern using the Route 107 segment
between Swampscott Road and Marlborough Road
Task 3 Develop Improvement Alternatives and Associated Costs
Based on the evaluation and analyses,potential improvement altematives will be
6.
developed: Potential improvements would include retiming, traffic signal design,
geometric improvements, traffic management, channelization, access management,
arterial coordination of the three signalized intersections,.and assessment of traffic
control equipment for potential updates, and better processing of bus, pedestrian, and
bicyole.;lrafiic. The cost of each improvement option will be evaluated(excluding right-
of-way'costs.) Conceptual geometric improvements will be drawn on existing layout
plans using AutoCAD. Analysis will be performed with 2016 (No-Build and Build)
volumes, including Wal-Mart and Lowe's generated traffic upon occupancy. In addition
to Wal-Mart and Lowe's trips,the 5-year growth rate will take into account an
appropriate background growth rate.
Product of Task 3
A summary of alternative improvements and associated present and future year
assessment; conceptual AutoCAD designs of potential geometric improvements; and
construction implementation costs, excluding right-of-way purchase, if any.
Task 4 Recommend Improvements
Based on the evaluation and analysis performed in Task 3, short- and long-term.measures
to improve operations at the three intersections will be recommended
Product of Task 4
A summary of recommended operational improvements for the three intersections
Task 5 Advisory Group Input
Study will include seeking advisory group input via presentations at meetings e-mail
exchanges, and telephone fomes of interaction. The advisory group will consist of
c
MassDOT representatives from Office of Transportation Planning,Highway Division,
District 4, and others; City of Salem officials, and City of Salem consultants.
Product of Task 5
Preparation for meetings, including presentations, and other forms of interaction with
advisory group members
Task 6 Document AB Findings and Recommendations
Staff will document all study tasks in a technical memorandum for MassDOT's review.
Product of Task 6
A technical memorandum documenting Tasks 1 through 5
ESMUTED SCHEDULE
It is estimated that this project will be completed 14 weeks after the notice to proceed is
received.
ATIRLIE.-WYATTESOT
i9M]H/1
Exhibit "B "
rr
1 -
AFFIDAVa OF KATFRINA PANAGIOTAKIS
My name is Katerina Panagiotakis of and I have personal knowledge of the following
facts:
1. I.appeared at many of the hearings before the City of Salem Planning Board to speak
in opposition the proposed commercial development project.
2. During my appearance at one of these hearings in or around fall of, 2010, Salem
Planning Board member Tim Ready had occasion to speak with Calvin Anderson and
me in a hallway following the meeting.
3. At the conclusion of the hearing I&. Ready motioned with his finger that he would
like to speak with me privately in the hallway.
4. We subsequently had a conversation outside of the earshot of those appearing and
participating in the hearing, including the developer and its counsel.
5. Mr. Ready requested that I change my opposition to the project and instead support
the project,because I would not win."
6. Mr. Ready stated that"You are very good in what you say and are very persistent,but
will not win on this. It is better if you ask them what they[the developer] or this
project can do for you instead."
7. Mr. Ready indicated that the outcome was a foregone conclusion.
8. This conversation occurred prior to the conclusion of all public hearings relating to
the project.
9. l left that conversation with Mr. Ready certain that Mr. Ready and the Salem
Planning Board had already determined that the project was going to be approved.
Signed under the pains and penalties of perjury this the%day of February, 2011.
Katerina Panagio s
r
Exhibit " C "
y{9fF9rT C a
AFFIDAVIT OF CALVIN ANDERSON
My name is Calvin Anderson of and I have personal knowledge of the following facts:
1. I appeared at many of the hearings before the City of Salem Planning Board to speak
in opposition the proposed commercial development project.
2. During my appearance at one of these hearings in or around December, 2010, Salem
Planning Board member.Tim Readyhad occasion to speak with Ms. Katerina
Panagiotakis and me in a hallway following the meeting.
3. The three of us subsequently had a conversation outside of the earshot of those
appearing and participating in the hearing, including the developer and its counsel.
4: Mr. Ready stated that he recognized our commitment and passion for our opposing
view.
5. Mr. Ready recommended that we would be best served by not opposing the subject
project as the project was going to be ultimately approved by the Salem Planning
Board,
6. Mr. Ready indicated that the outcome was a foregone conclusion.
7. Mr, Ready stated that the project would proceed ahead"one way or another."
8. Mr, Ready recommended that rather than opposing the project, we should each
attempt to elicit concessions and benefits from the developer on behalf of the City of
Lynn and the neighbors to the project.
9. Mr. Ready stated that those in opposition would be better off"asking what `they" [the
developer] could do for you."
10. Mr. Ready indicated that we should back off and see what accommodations to the
plan we could receive from the developer.
11. This conversation occurred prior to the conclusion of all public.hearings relating to
the project.
12. I left that conversation with Mr. Ready certain that Mr. Ready and the Salem
Planning Board had already determined that the project was going to be approved.
Signed under the pains and penalties of perjury this the day Feb 2011.
Calvin 2tson
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CERTIFICATE OF SERVICE
I, George S. Markopoulos, hereby certify that I did serve the within document of the
following:
1. First Amended Complaint and Jury Demand.
by delivering in hand the original to the court and a copy ofthe same, postage prepaid, to
1 the counsel of record and to the Defendants.
I have also this day delivered in hand a copy of the same to Cheryl A. Lapointe, City
Clerk of the City of Salem.
Signed under the pains and penalties of perjury.
George S. Markopoulos
Dated: February 10, 2011