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7 CARPENTER STREET - ZBA (2) - ; � r \ - CARpENfER STREET - - - - - V COMMONWEALTH OF MASSACHUSETTS ESSEX DIVISION SUPERIOR COURT CIVIL ACTION NO. 98-1346C KIMBERLEY A. RUSSELL, ) KATHLEEN A. KARYDIS, ) LYTLE C. SMITH, JR. and ) BARBARA M. SMITH, ) Plaintiffs ) V ) JAMES NICHOLSON, ) ALBERT BUSSINK, and ) The SALEM MASSACHUSETTS BOARD OF APPEAL ) Consisting of ) NINA V. COHEN, Chairperson, ) RONALD HARRISON,Vice Chairperson ) MICHAEL WARD ) RICHARD E. DIONNE, and ) PAUL VALASKATGIS ) Defendants ) AGREEMENT FOR JUDGMENT Now come the Plaintiffs, Kimberley A. Russell, Kathleen A. Karydis, Lytle C. Smith, Jr. and Barbara M. Smith (hereinafter collectively"Appellants"), and the Defendants, James Nicholson and Albert Bussink(hereinafter collectively the"Owners"), and the Salem Massachusetts Board of Appeal (hereinafter"Appeals Board"), in the above entitled action and hereby agree as follows: RECITALS A. WHEREAS the Owners own the land with the building and improvements thereon known as and numbered 7 Carpenter Street, Salem, Massachusetts (hereinafter"7 Carpenter Street Premises"),which property is located in an R-2 Zoning District under the Zoning Ordinance of the City of Salem (the"Zoning Ordinance"); and s B. WHEREAS on June 17, 1998, the Appeals Board granted a variance to said Owners (hereinafter the"Variance Decision") allowing them to construct five dwelling units at the 7 Carpenter Street Premises (three in excess of the two allowed in an R-2 District under the Zoning Ordinance); and C. WHEREAS the appellants have duly and timely filed a civil action with this Court appealing said Variance Decision (hereinafter the"Appeal'); and D. WHEREAS all parties herein have reached agreement disposing of all of the issues among them in connection with said Appeal; NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereby mutually agree as follows: 1. The parties hereby agree that the maximum number of dwelling units permitted at the 7 Carpenter Street property shall be four(4) units, notwithstanding the Variance Decision, and that the within restriction of the number of dwelling units to four shall be perpetual and shall run with the land. 2. The parties hereby acknowledge and agree that said four dwelling unit maximum shall be in lieu of, and not in addition to, any"grand-fathered"non-conforming uses at the 7 Carpenter Street Premises. 3. The parties further acknowledge and agree that the Variance Decision is hereby amended in the following respects: a. the permitted maximum number of dwelling units at the 7 Carpenter Street Premises is four and not five; b. each of the four dwelling units located at said property shall not be used for any purpose other than as a dwelling unit for one family, or not more than two unrelated persons; C. subject to future application for a variance, no other uses shall be permitted at the 7 Carpenter Street Premises; d. condition No. 2 of the Variance Decision is hereby revoked, and the following language is hereby substituted therefor: All construction shall be done as per the plans dated August 1, 1998 prepared by Raymond Guertin, Architect, submitted to and on file with the Salem Historical Commission(hereinafter the "Commission") and approved by said Commission on August 6, 1998, excepting, however, such interior changes as are necessary to reduce the number of dwelling units from five to four, and further subject to such such additional matters left by said Commission and/or said Owners to be addressed at a later date. e. in the event said property is destroyed by fire, casualty, or other calamity, prior to occupancy permits being issued for four units, said variance shall be null and void, and the zoning for the 7 Carpenter Street Premises shall revert to the zoning then in effect for the zoning district in which said 7 Carpenter Street Premises are located; 4. In all other respects the terms and conditions of the Variance Decision are ratified. 5. Simultaneously upon the execution of this Agreement for Judgment, the Appeals Board and Owners shall do all things and sign all documents necessary or convenient to carry out the terms of this Agreement, including (without limitation) the following; a. The Appeals Board shall prepare an Amended Decision in keeping with the terms hereof dated nunc pro tune to June 17, 1998; b. The owners shall execute and record at the Essex South Registry of Deeds a duplicate of the document entitled"Protective Covenants"which is attached hereto as Exhibit A, and shall forthwith furnish the Appellants with evidence of the recording of same; C. The owners shall likewise execute six originals of this Agreement For Judgment, one of which shall forthwith be distributed to each of the Appellants, one filed with the Essex Superior Court as hereinafter provided, and one furnished to the Owners. 6. Upon the occurrence of the three events described in the preceding paragraph the within Agreement for Judgment shall be filed with the Essex Superior Court, provided however, the parties hereby expressly agree that this Agreement shall survive said Judgment as a legally enforceable contract to enforce the terms hereof, including (without limitation) with respect to injunctive relief. 7. The parties herein hereby irrevocably waive their respective rights to appeal the within Agreement for Judgment in the appellants' within action. 8. Each party shall indemnify and hold the other parties fully harmless for any breach by such party of this Agreement For Judgment. F 9. Each party hereby releases all other parties from any and all other existing or potential claims existing between them up to the date of this Agreement. 10. This Agreement for Judgment and all supporting documents shall be governed according to the laws of the Commonwealth of Massachusetts. In the event any provision of this Agreement shall be deemed invalid, the remaining provisions shall nevertheless remain in full force and effect provided that they reflect the parties' overall intent and agreement in executing this Agreement. WITNESS OUR HANDS AND SEALS and executed in six identical counterparts this ay of September, 1998 Lytl . Smith, Jr. es Nicholson,.owner and defendant Plaintiff/appellant Barbara M. Smith, Alb uss' , o defendant Plaintiff/appellant zz�/, >/-' 'Kathleen A. l�arydis, Ki berley A. ussell, Plaintiff/ appellant plaintiff/appellant The Salem Massachusetts Board of Appeals consisti f Nina V. Cohen, Chair e on on ld Harrison, Vice-Chairman chael Ward, Member Richard E. Dionne, Member Paul Va askatgis, Member E-X1+1 B IT A PROTECTIVE COVENANTS James Nicholson and Albert Bussink, owners of the premises known as and numbered 7 Carpenter Street, Salem, Massachusetts shown on Land Court Plan No. 23031-A more particularly described in a deed into the owners filed with the Essex South District of the Land Court as Document No. 341100, as reflected on the owners' Certificate of Title No. 69155 (the "Premises"), for consideration of$1.00 and other consideration paid, HEREBY AGREE AND COVENANT AS FOLLOWS for themselves and their successors in title to the Premises for the benefit of the premises known as and numbered 5 Carpenter Street, assessed as of the date hereof to Kimberly A. Russell (Deed Reference Essex South Deeds Book 12056, Page 248), 8 Carpenter Street, assessed as of the date hereof to Kathleen A Karydis (Deed Reference Essex South Deeds, Book 9910, Page 370) and 10 Carpenter Street, assessed as of the date hereof to Lytle C. Smith and Barbara M. Smith, Trustees of the Smith Family Trust (Deed Reference Essex South Deeds, Book 13282, Page 220), all in Salem, Essex County, Massachusetts, the owners thereof, and their successors and assigns (the `Benefited Properties and Property Owners"): (a) There shall be no more than four dwelling units located on the Premises; and (b) Each of the four dwelling units located on the Premises shall not be used for any purpose other than as a dwelling for one family or not more than (2) unrelated persons. The restrictions imposed hereunder shall be effective for an initial period of thirty years from the date hereof, and may be extended for an unlimited number of successive twenty year periods in accordance with M.G.L. Chapter 184, Section 27. The foregoing restrictive covenants shall run with the land and shall be enforceable by the Benefited Properties and Property Owners by action in a court of competent jurisdiction for injunctive relief. Executed under seal this_day of September, 1998 James Nicholson Albert Bussink THE COMMONWEALTH OF MASSACHUSETTS Essex, ss. September_, 1998 Then personally appeared the above named James Nicholson and acknowledged the foregoing to be his free act and deed, before me Notary Public My Commission Expires: THE COMMONWEALTH OF MASSACHUSETTS Essex, ss. September_, 1998 Then personally appeared the above named Albert Bussink, and acknowledged the foregoing to be his free act and deed, before me. Notary Public My Commission Expires: Notary Public CITY OF SALEM - MASSACHUSETTS WILLIAM J. LUNDREGANJOHN D. KEENAN Legal Department City Solicitor 93 Washington Street A sistant City Solicitor 81 Washington Street SalemMassachusetts 01970 15 Church Street , Tel:978-741-3888 Tel:978-744-8500 Fax:978-741-8110 Fax:978-744-0111 September 16, 1998 Salem Board of Appeals Nina Cohen, Chairperson Ronald Harrison, Vice Chairperson Michael Ward, Richard Dionne, Paul Valaskatgis One Salem Green Salem, Massachusetts 01970 RE: Variance at 7 Carpenter Street Essex Superior Court No. 98-1346 Dear Board: I Please find attached Agreement for Judgment in the above captioned matter. Essentially, the agreement reduces the number of units from five to four and replaces the original construction plans to implement the reduction (app Iroved by Salem Historic Commission on August 6, 1998). I I have reviewed the Agreement and recommend acceptance of same. Through the cooperation of the parties, the settlement appears to be a "win-win".for all involved. Thank you for your attention to this matter. Very best regards, JohD. 'eenan, Assi nt City Solicitor Enc. Cc. tanley Usovicz, Mayor William Lundregan, City Solicitor I AMENDED DECISION WITH RESPECT TO THE PETITION OF JAMES NICHOLSON &ALBERT BUSSINK REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 7 CARPENTER STREET R2 A hearing on this petition was held June 17, 1998 with the following Board members present: Nina Cohen, Paul Valaskagis, Michael Ward, Ronald Harrison, and Richard Dionne. Notice of the hearing was sent to abutters and others and notices of the hearing were properly published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. Petitioner requested a Variance to construct 5 dwelling units in the former Newhall Nursing Home located in an R2 zone for the property located at 7 Capenter Street. The requested Variance could be granted upon a finding of this board that: 1. Special conditions and circumstances exist which especially affect the land, building or structure involved and which are not generally affecting other land, buildings, or structures in the same district. 2. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioner. 3. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the district or the purpose of the Ordinance. The Board of Appeal, after careful consideration of the evidence presented at the hearing, made the following findings of fact: 1. Petitioner seeks a use variance to convert the property at 7 Carpenter Street into five units of condominium housing. The former use for the property was nonconforming: it had operated for many years as a nursing home. Petitioner also seeks relief from dimensional requirements regulating minimum lot area and number of dwelling units on one lot. 2. Conversion of the property, which is located within the McIntyre Historic District District, would require no change to the existing footprint of the building, and existing parking arrangements are adequate for the proposed units. CITY OF SALEM - MASSACHUSETTS WILLIAM J. LUNDREGAN Legal Department JOHN D.KEENAN City Solicitor Assistant City Solicitor 81 Washington Street 93 Washington Street I15 Church Street Tel:978.741.3888 Salem, Massachusetts 01970 Tel:978-744.8500 Fax:978-741.8110 Fax:978-744-0111 September 16, 1998 Salem Board of Appeals Nina Cohen, Chairperson Ronald Harrison, Vice Chairperson Michael Ward, Richard Dionne, Paul Valaskatgis One Salem Green Salem, Massachusetts 01970 RE: Variance at 7 Carpenter Street Essex Superior Court No. 98-1346 Dear Board: Please find attached Agreement for Judgment in the above captioned matter. Essentially, the agreement reduces the number of units from five to four and replaces the original construction plans to implement the reduction (approved by Salem Historic Commission on August 6, 1998). I have reviewed the Agreement and recommend acceptance of same. Through the cooperation of the parties, the settlement appears to be a "win-win"for all involved. Thank you for your attention to this matter. Very best regards, Johill�JD. enan Assint City Solicitor Enc. CC. tanley Usovicz, Mayor William Lundregan, City Solicitor