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271 JEFFERSON AVENUE - ZBA 271 JEFFERSON AVENUE v .t Legai Notice CPfY OF SALEM BOARD OF APPEAL 795-9595 EXT.381 Y Will hold a public hearing for all Persons interested in the petition sub- mitted by Nikalanos Karamelos requesting a Variance from Article Vi residential density regulations to allow the addition of three residen- tial units for property located at 271 Jefferson Avenue B-1.Said hearing to i be held Wednesday,May 16,2001 at f 6:30 P.M., One Salem Green, 2nd , I Floor. Nina Cohen Chairman � (5/2,9) . � S Citp of harem, ftlazg;arbuatt�,y OF SALEM. MA CLERKS OFFICE j6oarb of 2ppeal � 1001 MAY 21A P 2: OS DECISION OF THE PETITION OF NIKOLANOS KARAMELOS REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 271 JEFFERSON AVENUE A hearing on this petition was held May 16, 2001 with the following Board Members present: Nina Cohen, Chairman, Richard Dionne, Stephen Buczko and Stephen Harris. Notice of the hearing was sent to abutters and others and notices of the hearing were piopeli)' publi6ncC Iri 'thE Ili &.ccoidancc vvi'T: !V�,'Sc Cil'uscti� General Laws Chapter 40A. The petitioner is requesting Variances from density regulations to create additional living units for the property located at 271 Jefferson Avenue in a B-1 zone. The Variances, which have been requested, may be granted upon a finding by this . Board that: a. Special conditions and circumstances exist which especially affect the land, building or structure involved and which are not generally affecting other lands, buildings and structure involve. b. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioners. c. Desirable relief may be granted without substantial detriment to the public good and tin from the intent of the district of the or substantially derogating without nullifying Y 9 9 Y 9 purpose of the Ordinance. The Board of Appeal, after careful consideration of the evidence presented at the - hearing, and after viewing the plans, makes the following findings of fact: 1. Petitioner, represented by Stephen P. Lovely, Esq., seeks a variance to convert into two residential apartments a former storefront on the first floor.of is building at 271 Jefferson Avenue. Adequate offstreet parking for the proposed units exists at the rear of the property, accessed from Lawrence Ave. Petitioner indicated that he is in the process of installing an automatic sprinkler system in the building as required by local fire regulations. 2. These apartment units are presently occupied in the 3-story building, which is located in the B-1 district. In this district, specified commercial uses are allowed by special permit. In 1996 this building was granted a variance allowing mixed use of the premises, permitting a pet supply retailer to occupy the street level premises. This retailer has since gone out of business. DECISION OF THE PETITION OF NIKOLANOS KARAMELOS KARAMELOS REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 271 JEFFERSON AVENUE page two 3. At all the public hearing, petitioner presented a petition signed by 43 neighbors, requesting that the Zoning Board grant the petition for additional living units. Three neighbors wrote letters expressing support for the residential use of the former commercial space. 4. There was also considerable opposition to the proposed additional units. -Opponents areued that allowino 3 more units would greatly increase the building occupancy because of the likelihood ihai the unitc- woulc be ien ec is Badu; Mate studens who have a tendency to invite others to share their living space. Opponents stressed the difficulties created by increased density, noting that residents of the surrounding multifamily houses frequently have difficulty parking vehicles on the street. 5. Paul Biscaya of 267 Jefferson Ave stated that while Mr. Karamelos has been responsible for some improvements to the building, it does not present the appearance of a well-kept residential property. He pointed out boarded and broken windows on the sides, and requested that the commercial signage and overhanging roof be removed from the Jefferson Ave. facade. 6. Several neighbors objected to allowing increased density at the side in light of the existing congestion in the neighborhood. These were Yvonne and Tony Lysak of 258 Jefferson Ave., Lorraine Malionek of 259 Jefferson, Carol Hunt of 751h Lawrence St., and Steven Levaro of 46 Lawrence Street. 7. Mr. Tom Furey, City Councillor, of 21 Barstow Street opposed allowing more than 4 or 5 units, basing his view of the difficulties of upkeep and management presented by larger multifamily dwellings in congested neighborhoods. He stated that overuse of a property can have a ripple effect, causing difficulties throughout the section. He stated that he spoke also for his colleague Laura DeToma, who was unable to attend the meeting but who opposed the granting of a variance for 6 units. On the basis of the above findings of fact, and on, the evidence presented at the hearing, the Zoning Board of Appeal concludes as follows 1. Special conditions exist which especially affect the subject property but not the district in general. 2. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship to the petitioner. 3. Desirable relief can 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. Therefore, the Zoning Board of Appeal voted 5-0, to grant the Variances requested, subject to the following conditions; DECISION OF THE PETITION OF NIKOLANOS KARAMELOS REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 271 JEFFERSON AVENUE page three 1. Petitioner shall comply with all city and state statures, ordinances, codes and regulations. 2. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 3. All construction shall be done as per the plans and dimensions submitted. 4. Petitioner shall obtain a building permit prior to beginning any construction. 5. A Certificate of Occupancy shall be obtained. 6. Exterior finishes of the new construction shall be in harmony with the existing construction. 7. Remove commercial signs and remove overhang. 8. Petitioner shall install new residential windows. 9. Apartments shall be no more than 5 bedrooms in total 10. Sprinkler system shall be installed. Variance Granted May 16, 2001 Nina Cohen, Chairman__ Board of Appeal DECISION OF THE PETITION NIKOLANOS KARAMELOS REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 271 JEFFERSON AVENUE page four A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the Gal& 01 illing Oi lhl- O@CISIOIi II', 11-IC OiiICE Oi iilE GIiV CIEI'I,. �'L'iFLEll iG Massachusetts General Laws Chapter 40A, Section 11. The Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that is has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of Title. Board of Appeal WE, THE UNDERSIGNED ABUTTERS-AND NEIGHBORS, RESPECTFULLY ASK THAT THE SALEM BOARD OF APPEAL GRANT THE PETITION OF NICK KARAMBELAS FOR A VARIANCE FROM THE RESIDENTIAL DENSITY REQUIREMENTS TO ALLOW THE ADDITION OF THREE RESIDENTIAL DWELLING UNITS. ALTHOUGH THE PREMISES ARE IN THE BI ZONING AREA ANY BUSINESS USE OF THE PROPERTY AND CERTAINLY SEVERAL OF THE POSSIBLE USES ALLOWABLE UNDER CURRENT ZONING ARE INCOMPATIBLE WITH THE NEIGHBORHOOD AS IT EXISTS. WE WOULD ASK THAT THE PETITIONER BE ALLOWED TO CONVERT AN ABANDONDED BUSINESS USE INTO NEEDED RESIDENTIAL HOUSING. 5 ��F s Y ��w �C S 3 c awR etiU S� O' YP' � S • i WE, THE UNDERSIGNED ABUTTERS AND NEIGHBORS, RESPECTFULLY ASK THAT THE SALEM BOARD OF APPEAL GRANT THE PETITION OF NICK KARAMBELAS FOR A VARIANCE FROM THE RESIDENTIAL DENSITY REQUIREMENTS TO ALLOW THE ADDITION OF THREE RESIDENTIAL DWELLING UNITS. ALTHOUGH THE PREMISES ARE IN THE Bl ZONING AREA ANY BUSINESS USE OF THE PROPERTY AND CERTAINLY SEVERAL OF THE POSSIBLE USES ALLOWABLE UNDER CURRENT ZONING ARE INCOMPATIBLE WITH THE NEIGHBORHOOD AS IT EXISTS. WE WOULD ASK THAT THE PETITIONER BE ALLOWED TO CONVERT AN ABANDONDED BUSINESS USE INTO NEEDED RESIDENTIAL HOUSING. rl LL ,75 I WE, THE UNDERSIGNED ABUTTERS AND NEIGHBORS, RESPECTFULLY ASK THAT THE SALEM BOARD OF APPEAL GRANT THE PETITION OF NICK KARAMBELAS FOR A VARIANCE FROM THE RESIDENTIAL DENSITY REQUIREMENTS TO ALLOW THE ADDITION OF THREE RESIDENTIAL DWELLING UNITS. ALTHOUGH THE PREMISES ARE IN THE Bl ZONING AREA ANY BUSINESS USE OF THE PROPERTY AND CERTAINLY SEVERAL OF THE POSSIBLE USES ALLOWABLE UNDER CURRENT ZONING ARE . INCOMPATIBLE WITH THE NEIGHBORHOOD AS IT EXISTS. WE WOULD ASK THAT THE PETITIONER BE ALLOWED TO CONVERT AN ABANDONDED BUSINESS USE INTO NEEDED RESIDENTIAL HOUSING. _ , WHALEN MICHAEL - �_59LAWRENCE STREET'l THOMPSON MATTHEW 99 LAWRENCE STREET LEBLANC SUZANNE 2 ARTHUR STREET (_LEBLANC DANIEL 2 ARTHUR STREET-�� a WE,THE UNDERSIGNED ABUTTERS AND NEIGHBORS, RESPECTFULLY ASK THAT THE SALEM BOARD OF APPEAL GRANT THE PETITION OF NICK KARAMBELAS FOR A VARIANCE FROM THE RESIDENTIAL DENSITY REQUIREMENTS TO ALLOW THE ADDITION OF THREE RESIDENTIAL DWELLING UNITS. ALTHOUGH THE PREMISES ARE IN THE BI ZONING AREA ANY BUSINESS USE OF THE PROPERTY AND CERTAINLY SEVERAL OF THE POSSIBLE USES ALLOWABLE UNDER CURRENT ZONING ARE INCOMPATIBLE WITH THE NEIGHBORHOOD AS IT EXISTS. WE WOULD ASK THAT THE PETITIONER BE ALLOWED TO CONVERT AN ABANDONDED BUSINESS USE INTO NEEDED RESIDENTIAL HOUSING. THOMPSON JULIE 12 READ STREET _ — p — oZ $�?fS?cj f 1IR ELLIS JACK - 256 JEFFERSON AVENUE — GONZALES GILBERT 260 JEFFERSON AVENUE �Z -BELLEAU-JENNIFER 14 CLOUTMAN j GAROUSE SOPHIE 19 WILSON STREET 'Z sin PALM ERIC S 7 9 '� - — 9 READ STREET 71 MALLARD HERBERT 7 WILLSON STREET i I WE, THE UNDERSIGNED ABUTTERS AND NEIGHBORS, RESPECTFULLY ASK THAT THE SALEM BOARD OF APPEAL GRANT THE PETITION OF NICK KARAMBELAS FOR A VARIANCE FROM THE RESIDENTIAL DENSITY REQUIREMENTS TO ALLOW THE ADDITION OF THREE RESIDENTIAL DWELLING UNITS. ALTHOUGH THE PREMISES ARE IN THE BI ZONING AREA ANY BUSINESS USE OF THE PROPERTY AND CERTAINLY SEVERAL OF THE POSSIBLE USES ALLOWABLE UNDER CURRENT ZONING ARE INCOMPATIBLE WITH THE NEIGHBORHOOD AS IT EXISTS. WE WOULD ASK THAT THE PETITIONER BE ALLOWED TO CONVERT AN ABANDONDED BUSINESS USE INTO NEEDED RESIDENTIAL HOUSING. 'SAF r COTE ANTOINE J 0016 READ STREET 'Sltw. a c� THOMPSON MATTHEW R 0095 LAWRENCE STREET 7CL �{„„�,✓SF- _ MALIDNEK JOSEPH A 0012 CLOUTMAN STREET MALIONEK PAULINE 0012 CLOUTMAN STREET -- VIEL PAUL 008 CLOUTMAN STREET 1 .��a. ,__ �� �_p�• _.._______ VIEL LINDA 008 CLOUTMAN STREET —_— / ✓ ,,/' PROVENCHER DAVID J 0072 LAWRENCE STREET — ---------- ' OCONNOR THOMAS J JR 0079 LAWRENCE STREET BENECKE KRISTINA 0006 ARTHUR STREET SOP.ER ERLE R 0017 WILLSON STREET f KAULER ELIZABETH 0274 JEFFERSON AVENUE / LEVENTHAL MICHAEL 0010 CLOUTMAN STREET C? tic) -- 5 JIMENEZ PETER 0054 LAWRENCE STREET -- - S3cAw >` St v ------- - - - CAMIRE THOMAS J 0062 LAWRENCE STREET --- I WE, THE UNDERSIGNED ABUTTERS AND NEIGHBORS, RESPECTFULLY ASK THAT THE SALEM BOARD OF APPEAL GRANT THE PETITION OF NICK KARAMBELAS FOR A VARIANCE FROM THE RESIDENTIAL DENSITY REQUIREMENTS TO ALLOW THE ADDITION OF THREE RESIDENTIAL DWELLING UNITS. ALTHOUGH THE PREMISES ARE IN THE Bi ZONING AREA ANY BUSINESS USE OF THE PROPERTY AND CERTAINLY SEVE AE& Q. E 7AOSS USES ALLOWABLE UNDER CURREI ZO Aig INCOMPATIBLE WITH THE NEIGHBORHOOD AS IT EXISTS. WE WOULD ASK THAT THE PETITIONER BE ALLOWED TO CONVERT AN ABANDONDED BUSINESS USE INTO NEEDED RESIDENTIAL HOUSING. MARINO TIMOTHY 0263 JEFFERSON AVENUE L_, E. MARINO SUZANNE 0263 JEFFERSON AVENUE I �/^ -----I O'DONNELL CHRISTINE 0075. LAWRENCE STREET L / BAILEY WILLIAM S 0074 LAWRENCE STREET j JETER GEORGE 0272 JEFFERSON AVENUE R GOMES CARLOS 0070 LAWRENCE STREET C _ HUNT CAROL 0075 LAWRENCE STREET 112 iI HUNT RAY W 0075 LAWRENCE STREET 112 PELLETIER ALICE C 0004 ARTHUR STREET r O OROURKE MICHAEL F 0264 JEFFERSON AVENUE _.. - 1 yh� _ OSHEA JOHN J _0011 ARTHUR STREET . I ! REVEREND GEORGE J. DUFOUR 290 JEFFERSON AVENUE i� 'NOIJ DOROTHY 0073 LAWRENCE STREET GAGNON BERTRAND R 0073 LAWRENCE.STREET i v yl ev y ve YETTS DOROTHY 0069 LAWRENCE STREET !�i r! �t " BURTON RAYMOND J 0061 LAWRENCE STREET WE,THE UNDERSIGNED ABUTTERS AND NEIGHBORS, RESPECTFULLY ASK THAT THE SALEM BOARD OF APPEAL GRANT THE PETITION OF NICK KARAMBELAS FOR A VARIANCE FROM THE RESIDENTIAL DENSITY REQUIREMENTS TO ALLOW THE ADDITION OF THREE RESIDENTIAL DWELLING UNITS. ALTHOUGH THE PREMISES ARE IN THE BI ZONING AREA ANY BUSINESS USE OF THE PROPERTY AND CERTAINLY SEVERAL OF THE POSSIBLE USES ALLOWABLE UNDER CURRENT ZONING ARE INCOMPATIBLE WITH THE NEIGHBORHOOD AS IT EXISTS. WE WOULD ASK THAT THE PETITIONER BE ALLOWED TO CONVERT AN ABANDONDED BUSINESS USE INTO NEEDED RESIDENTIAL HOUSING. THOMPSON JULIE 12 READ STREET ELLIS JACK 256 JEFFERSON AVENUE GONZALES GILBERT 260 JEFFERSON AVENUE BEL-9W, JENNIFER 14 CLOUTIVIAN GAROUSE SOPHIE19 WILSON_N S STREET °Z s� PALA ERIE S 7 a 9 READ STREET 7 ren MALLARD HERSERT' 7 WILLSON STREET i I WE, THE UNDERSIGNED ABUTTERS AND NEIGHBORS, RESPECTFULLY ASK THAT THE SALEM BOARD OF APPEAL GRANT THE PETITION OF NICK KARAMBELAS FOR A VARIANCE FROM THE RESIDENTIAL DENSITY REQUIREMENTS TO ALLOW THE ADDITION OF THREE RESIDENTIAL DWELLING UNITS. ALTHOUGH THE PREMISES ARE IN THE Bl ZONING AREA ANY BUSINESS USE OF THE PROPERTY AND CERTAINLY SEVERAL OF THE POSSIBLE USES ALLOWABLE UNDER CURRENT ZONING ARE . INCOMPATIBLE WITH THE NEIGHBORHOOD AS IT EXISTS. WE WOULD ASK THAT THE PETITIONER BE ALLOWED TO CONVERT AN ABANDONDED BUSINESS USE INTO NEEDED RESIDENTIAL HOUSING. WHALEN MICHAEL 59 LAWRENCE STREET ; THOMPSON MATTHEW LA/ 99 LAWRENCE STREET V /tmNc� s7' -' -- .-. LE LAW&SUZANNE 2 ARTHUR STREET W ; LE9LANC DANIEL 2A STREET Salem Board Of Appeals One Salem Green Salem, Massachusetts 01970 Dear Board Members: As a owner and direct abutter to the rear of the property at 271 Jefferson Avenue living at 74 Lawrence Street I would like to express my opinion to you on the proposal to put residential housing in the commercial storefront on the property at 271 Jefferson Avenue. I am absolutely in favor. Anything that eliminates commercial use of the property is better for the neighborhood. When the current owner Nick Karambelas bought the property it was a real mess. It was formerly a pet store and you could smell it. When Nick bought the building 6 or 7 years ago he asked all the neighbors what he could do improve the property. We asked him not to continue the commercial use of the property and suggested that he convert it to residential use. We would like to preserve our neighborhood here on Lawrence Street. I can vouch for he fact that he is a man of his word. The property is clean unlike the past and he has spent a great deal of money to improve the property a great deal. There has been talk of a Drycleaner or a Laundromat going in there I would not like to see that happen. Please consider the benefit that housing would have over the current potential commercial uses for our neighborhood. He also has plenty of parking that many other residents don't have. Thank You William S.faiy 74 Lawrence Street Salem Board Of Appeals May 1, 2001 One Salem Green Salem, Massachusetts 01970 RE: 271 Jefferson Avenue Residential.Housing Dear Salem Board of Appeals: I am the owner of a two family dwelling on 2 Arthur Street and an abutter of the property owner proposing to add three dwelling units to the property at 271 Jefferson Avenue. I would ask the Board to support the petitioner's request to change the use of the property from commercial to residential. As a lifelong resident and longtime property owner of the Castle Hill section of Salem I remember the location as Fontaine's Market. Now all of the businesses that thrived in the old days are all gone. Currently traffic in this area is very heavy and commercial activity is not best suited for the neighborhood. As you are aware the building is quite old but very spacious and can easily support more than the three units requested. My property value will be enhanced as well as all the other property in the neighborhood with the elimination of the commercial use and the addition of much needed residential housing. Unlike nearly all the properties in the area the petitioner has parking for all the units on the property. I hope that you will approve this petition, as it will greatly improve the neighborhood. Sincerely Da - Daniel LeBlanc A Letter to the Salem Board OfAppeals Dear Sirs My name is Dean Boucher and I am the owner of the house on 13 Arthur Street. I received notice of this meeting by mail. lam unable to attend yourmeeting. Ihave been involved working in the neighborhood with trying to get the City to make Arthur Street a one way for safety's sake. Prior to the closing of the Pet Store a few years ago the intersection ofArthur Street and Jefferson Avenue was even more of disaster than it is now. Parking for the business took all the parking spaces (and many driveways) on Jefferson Avenue and the spillover ofparkingBlled up Arthur Street especially on the weekends. As the father of two young children I would ask that you not allow a business to operate on that property. It would be too dangerous withal] the coming and going. By allowing the owner to put residential units in that space it would greatly ease anyparking and traffic problems at that location. There is a parking lot in the rear that was never used when the Pet Store was open. Residential use is a far better use for the property as far as the neighbors are concerned than any business. Mr. Dean Boucher 05/10/01 WED 11:09 FAX 9787412408 10002 • � I ' 06 Citp of 6alem, Angathuatt% ellitt of the Eitp counril I �itp iiyall I COUNCILLORS-AT-LARGE JOAN 9. LOVELY WARD COUNCILLORS 2001 PRESIDENT LAURA DeTOMA DEBORAH E. BURKINSHAW 2001SCOTT A.LaCAVA THOMAS H. FUREY CITY CLERK REGINA R.FLYNN KEVIN HARVEY JOAN B. LOVELY ARTHUR C..SARGENT III LEONARD F.O'LEARY May 16,2001 KIMSERLEY L.DRISCOLL SARAH M.HAYES JOSEPH A.O'KEEFE,SR. Nina Cohen,Chairperson Zoning Board of Appeals City of Salem One Salem Green Salem,MA 01970 RE: 271 Jefferson Avenue,Salem MA Dear Ms. Cohen: Enclosed please find a legal opinion from City Solicitor John D. Keenan relative to the above captioned matter. Would you kindly acknowledge this opinion as received and place it on file in this regard. Thank you for your assistance and attention to this matter. Very truly yours, 94 Joan B. Lovely Councillor Ward Three i Jbl Enc. I I I 0. COT � opyi JOHN D. KEENAN CITY OF SALEM - MASSACHUSETTS JAMES G.GILBERT City Solicitor LEGAL DEPARTMENT Assistant City Solicitor 222 Essex Street 93 WASHINGTON STREET 15 Front Street Salem, MA 01970 SALEM, MASSACHUSETTS 01970 Salem, MA 01970 Tel: (978)741-4453 Tel: (978)744-9800 Fax: (978)740-0072 Fax: (978)744-7660 Email:jdkeenanlaw@aol.com _ Email: gilbert@salemlawyeccom Joan B. Lovely, President May 15, 2001 Ward Three Councilor . 14 Story Street Salem, MA 01970 RE: Conflict issues as City Council Member. 271 Jefferson Avenue, Salem Dear President Lovely: The following is my advice based on your written request of May 11, 2001, and my review of the Conflict of Interest Law in the Commonwealth. I have also enclosed most of the materials cited; those not enclosed are summarized. Issue Presented: Your written request for,an opinion asked if there is potential violation of the conflict of interest law (Mass. Gen. L. ch. 268A) arising from your participation as a city council member on the issue of a petition before the Salem Board of Appeals where your husband, as an attorney, represents the owner seeking said relief. As a city councilor, you are a municipal employee as that term is defined under Massachusetts General Laws, Chapter 268A, § 1.1 (See attached Ethics Commission Summary for City Councilors). Based upon the information you provided and aware of your husband's legal practice, I offer the following advice. Sections 19 and 23 apply to your request. Mass. Gen. L. c. 268A is the conflict of interest law in Massachusetts. It defines municipal employee as, "a person performing services for or holding a office, position, employment or membership in a municipal agency, whether by election, appointment, contract for hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent, or consultant basis..." (emphasis added). Section Essentially, Section 19 of the conflict of interest law prohibits you from participating in a particular matter in which you, your immediate family members or your employer (or even a potential employer with whom you have been negotiating for prospective employment) has a financial interest. Certainly, your spouse, by definition, is an immediate family member. Your husband stands to gain financially as the lawyer for the petitioner. For this reason alone, you should abstain from participating2 either in person or in writing. Section 23 Section 23 should also be a concern —as in every conflict potential. Section 23 specifies standards of conduct that apply to all public officials. Section 23(b)(2) provides that a public employee may not use her official position to secure unwarranted privileges or exemptions of substantial value for herself or others that are not available to similarly situated individuals. Currently, a violation of §23(b)(2) requires proving four elements: (1) use or an attempt to use one's official position to secure for oneself or others; (2) an unwarranted privilege or exemptions; (3) of substantial value; and (4) which is not available to similarly situated individuals. To avoid implicating §23(b)(2), you must not use your position on the City Council (especially in your capacity as President) to confer any advantages to your husband as an attorney for clients who are dealing with the city. Section 23(b)(3) prohibits a public employee from engaging in any conduct that gives a reasonable basis for the impression that any person or entity can improperly influence or unduly enjoy her favor in the performance of her duties, or that she is likely to act or fail to act as a result of kinship, rank or position of any person. Lastly, you must observe Section 23(c) which prohibits a public employee from engaging in any business or professional activity that will require her to disclose confidential information which she has gained by reason of her official position or authority or from improperly disclosing material or data which is exempt from the definition of a public record.3 Participate is defined, "participate in agency action or in a particular matter personally and substantially as a municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise." Mass. Gen. L. c. 268A, §1 Q)(emphasis added). ' See Mass. Gen. L. c. 4, § 7. 2 Conclusion If your husband is going to be retained as counsel to represent a landowner petitioner, you should in no way participate in the deliberations and vote of the Board of Appeals. Protection Afforded by this Opinion: Section 22 of the Conflict law provides the following: Any municipal employee shall be entitled to the opinion of the city solicitor upon any question arising under this chapter relating to the duties, responsibilities and interests of such employee. All requests for such opinions by a subordinate municipal employee shall be made in confidence directly to the chief officer of the municipal agency in which he is employed, who shall in turn request in confidence such an opinion of the city solicitor on behalf of such employee...The city solicitor shall file such opinion in writing with the city or town clerk and such opinion shall be a matter of public record; however, no opinion will be rendered by the city solicitor except upon the submission of detailed existing facts which raise a question of actual or prospective violation of any provision of this chapter. Furthermore, the Code of'Massachusetts Regulations (930 CMR 1.03(3)) provides: Any city solicitor who files with his respective municipal clerk an advisory opinion,issued under Mass. Gen. L. c. 268A, § 22 shall also file a copy of the opinion with the Commission. Following receipt of the opinion, the Commission, acting through the executive director, shall notify the city solicitor of any legal conclusions in the opinion that are inconsistent with Commission conclusions on similar issues under 268A or are otherwise, in the Commission's judgment, incorrect, incomplete or misleading. If no such notification,is sent by the commission within thirty (30) days of receipt of the opinion, the opinion will be binding upon the Commission to the extent and in the manner stated in 930 CMR 1.03(2).4 An advisory opinion issued by a city solicitor under 268A, 1.03(2)An advisory opinion issued by the Commission under Mass. Gen. L. c. 2688, § 3(g) is binding upon the Commission in any subsequent proceedings only with respect to the person who requested the opinion and to those upon whose behalf he requested the opinion. The Commission is not bound by an opinion whose material facts were omitted or misstated by the person in the request for the opinion, or who otherwise acted in bad faith in securing the opini�)n. 3 a copy of which ip not filed with the Commission, is not binding upon the Commission. I hope this information and advice has been helpful to you. I will let you know if I hear anything further from the Commission. V,ryhbes' regards, j Jo D.� eenan, Ci y olicitor En� cc. Deborah Burkinshaw, City Clerk State Ethics Commission James G. Gilbert, Asst. City Sol. t 4 iP t 4 VILitp of *alem, Alam5atbuatt!6 Office of the Cup Council Citp dell COUNCILLORS-AT-LARGE JOAN B. LOVELY WARD COUNCILLORS 2001 PRESIDENT 2001 LAURA ADeTOMA DEBORAH E. BURKINSHAW SCOTT A. LaCAVA THOMAS H. FUREY CITY CLERK REGINA R. FLYNN KEVIN R. HARVEY JOAN B. LOVELY ARTHUR C. SARGENT III LEONARD F CLEARY May 11 2001 KIMBERLEY L. DRISCOLL Y , SARAH M HAYES JOSEPH A. 0 KEEFE, SR. John D. Keenan, Esq. VIA FAX: 978-741-0072 City Solicitor City of Salem 222 Essex Street Salem, MA 01970 Re: 271 Jefferson Avenue, Salem, MA Dear Attorney Keenan: Please be advised that I have been contacted by neighbors of the above-captioned property. These neighbors are concerned about a petition filed with the City of Salem Board of Appeals requesting relief from the density requirement to allow 3 additional apartments to be constructed at this address. Said hearing is scheduled for May 16, 2001 at 6:30PM. Also please be advised that my husband, Stephen P. Lovely, who is an attorney licensed and practicing in the Commonwealth of Massachusetts, represents the owner of 271 Jefferson Avenue, the applicant for said variance. Would you kindly research and issue your opinion as to any conflict of interest I may encounter with regard to this matter. Your assistance in this regard is greatly appreciated. Should you require any further information, please do not hesitate to contact me. Very truly yours, Y11 oT an B. Lovely City Council President Councillor—Ward Three rn JOHN D. KEENAN CITY OF SALEM - MASSACHUSETTS JAMES G.GILBERT City Solicitor LEGAL DEPARTMENT Assistant City Solicitor 222 Essex Street 93 WASHINGTON STREET 15 Front Street Salem, MA 01970 SALEM, MASSACHUSETTS 01970 Salem MA 01970 Tel: 978 741-4453 Tel. (978)744-9800 Fax: (978)740-0072 Fax: (978)744-7660 Email:jdkeenanlaw@aol.com Email: gilbert@salemlawyer.com May 15, 2001 STATE ETHICS COMMISSION Attn: Municipal Opinions One Ashburton Place, Room 619 Boston, MA 02108 RE: Salem City Council Member: Spouse's Financial Interest Dear Sir/Madam: Enclosed for your review, please find my response to a written inquiry filed with my office pertaining to potential violations of the conflict law arising from a city council member's interest in participating (representing her constituents) on a petition to the Salem Board of Appeal where her attorney husband represents landowner impacted by same. Your office recently confirmed a very similar opinion I rendered to Councilor Lovely. Thank you for your attention to this matter. Do not hesitate to contact me with any questions. Very best regards, s ] D. Keenan, C licitor r i ENC; cc. Deborah Burkinshaw, Salem City Clerk of �a*M' Ma!5.qarbHfSCtt5 Office of tfje Citp (founril a :\ � COUNCILLORS-AT-LARGE JOAN B. LOVELY WARD COUNCILLORS 2001 PRESIDENT 2001 LAURA DeTOMA DEBORAH E. BURKINSHAW SCOTT A. LaCAVA THOMAS H. FUREY CITY CLERK REGINA R. FLYNN KEVIN R. HARVEY ARTHUR O JOAN B. LOVELY SARGENT III LEONARD F. O'LEARY May 11 2001 KIMBERLEY L. DRISCOLL Y , SARAH M. HAYES JOSEPH A. O'KEEFE, SR. John D. Keenan, Esq. VIA FAX: 978-741-0072 City Solicitor City of Salem 222 Essex Street Salem, MA 01970 Re: 271 Jefferson Avenue, Salem, MA Dear Attorney Keenan: Please be advised that I have been contacted by neighbors of the above-captioned property. These neighbors are concerned about a petition filed with the City of Salem Board of Appeals requesting relief from the density requirement to allow 3 additional apartments to be constructed at this address. Said hearing is scheduled for May 16, 2001 at 6:30PM. Also please be advised that my husband, Stephen P. Lovely, who is an attorney licensed and practicing in the Commonwealth of Massachusetts, represents the owner of 271 Jefferson Avenue, the applicant for said variance. Wouldou kindly ndly research and issue your opinion as to any conflict of interest I may encounter with regard to this matter. Your assistance in this regard is greatly appreciated. Should you require any further information, please do not hesitate to contact me. Very truly yours, tv Joan B. Lovely City Council President Councillor—Ward Three ��go IT JOHN D.KEENAN CITY OF SALEM - MASSACHUSETTS ,LAMES G. GILBERT City Solicitor LEGAL DEPARTMENT Assistant City Solicitor 222 Essex Street 93 WASHINGTON STREET 15 Front Street Salem,MA 01970 SALEM, MASSACHUSETTS 01970 Salem, MA 01970 Tel: (978)741-4453 Tel: (978)744-9800 Fax: (978)740-0072 Fax: (978)744-7660 Email:idkeenanlaw@aol.com Email: gilbert@salemlawyeccom Joan B. lovely, President May 15, 2001 Ward Three Councilor . 14 Story Street Salem, MA 01970 RE: Conflict issues as City Council Member: 271 Jefferson Avenue, Salem Dear President Lovely: The following is my advice based on your written request of May 11, 2001, and my review of the Conflict of Interest Law in the Commonwealth. I have also enclosed most of the materials cited; those not enclosed are summarized. Issue Presented: Your written request for,an opinion asked if there is potential violation of the conflict of interest law (Mass. Gen. L. ch. 268A) arising from your participation as a city council member on the issue of a petition before the Salem Board of Appeals where your husband, as an attorney, represents the owner seeking said relief. As a city councilor, you are a municipal employee as that term is defined under Massachusetts General Laws, Chapter 268A, § 1.1 (See attached Ethics Commission Summary for City Councilors). Based upon the information you provided and aware of your husband's legal practice, I offer the following advice. Sections 19 and 23 apply to your request. 1 Mass. Gen. L. c. 268A is the conflict of interest law in Massachusetts. It defines municipal employee as, "a person performing services for or holding a office, position, employment or membership in a municipal agency, whether by election, appointment, contract for hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent, or consultant basis..." (emphasis added). Section 19 Essentially, Section 19 of the conflict of interest law prohibits you from participating in a particular matter in which you, your immediate family members or your employer (or even a potential employer with whom you have been negotiating for prospective employment) has a financial interest. Certainly, your spouse, by definition, is an immediate family member. Your husband stands to gain:financially as the lawyer for the petitioner. For this reason alone, you should abstain from participatingz either in person or in writing. Section 23 Section 23 should also be a concern —as in every conflict potential. Section 23 specifies standards of conduct that apply to all public officials. Section 23(b)(2) provides that a public employee may not use her official position to secure unwarranted privileges or exemptions of substantial value for herself or others that are not available to similarly situated individuals. Currently, a violation of §23(b)(2) requires proving four elements: (1) use or an attempt to use one's official position to secure for oneself or others; (2) an unwarranted privilege or exemptions; (3) of substantial value; and (4)which is not available to similarly situated individuals. To avoid implicating §23(b)(2), you must not use your position on the City Council (especially in your capacity as President) to confer any advantages to your husband as an attorney for clients who are dealing with the city. Section 23(b)(3) prohibits a public employee from engaging in any conduct that gives a reasonable basis for the impression that any person or entity can improperly influence or unduly enjoy her favor in the performance of her duties, or that she is likely to act or fail to act as a result of kinship, rank or position of any person. Lastly, you must observe Section 23(c) which prohibits a public employee from engaging in any business or professional activity that will require her to disclose confidential information:which she has gained by reason of her official position or authority or from improperly disclosing material or data which is exempt from the definition of a public record.3 Participate is defined, "participate in agency action or in a particular matter personally and substantially as a municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise." Mass. Gen. L. c. 268A, §10)(emphasis added). ' See Mass. Gen. L. c. 4, § 7. 2 F Conclusion If your husband is going to be retained as counsel to represent a landowner petitioner, you should in no way participate in the deliberations and vote of the Board of Appeals. Protection Afforded by this Opinion: Section 22 of the Conflict law provides the following: Any municipal employee shall be entitled to the opinion of the city solicitor upon any question arising under this chapter relating to the duties, responsibilities and interests of such employee. All requests for such opinions by a subordinate municipal employee shall be made in confidence directly to the chief officer of the municipal agency in which he is employed, who shall in turn request in confidence such an opinion of the city solicitor on behalf of such employee...The city solicitor shall file such opinion in writing with the city or town clerk and such opinion shall be a matter of public record; however, no opinion will be rendered by the city solicitor except upon the submission of detailed existing facts which raise a question of actual or prospective violation of any provision of this chapter. Furthermore, the Code of Massachusetts Regulations (930 CMR 1.03(3)) provides: Any city solicitor who files with his respective municipal clerk an advisory opinion issued under Mass. Gen. L. c. 268A, § 22 shall also file a copy of the opinion with the Commission. Following receipt of the opinion, the Commission, acting through the executive direct6r,,,shall notify the city solicitor of any legal conclusions in the opinion that are inconsistent with Commission conclusions on similar issues under 268A or are otherwise, in the Commission's judgment, incorrect, incomplete or misleading. If no such notification.is sent by the commission within thirty (30) days of receipt of the opinion, the opinion will be binding upon the Commission to the extent and in the manner stated in 930 CMR 1.03(2).4 An advisory opinion issued by a city solicitor under 268A, " 1.03(2) An advisory opinion issued by the Commission under Mass. Gen. L. c. 2688, § 3(g) is binding upon the Commission in any subsequent proceedings only with respect to the person who requested the opinion and to those upon whose behalf he requested the opinion. The Commission is not bound by an opinion whose material facts were omitted or misstated by the person in the request for the opinion, or who otherwise acted in bad faith in securing the opini;in. 3 a copy of which i� not filed with the Commission, is not binding upon the Commission. I hope this information and advice has been helpful to you. I will let you know if I hear anything further from the Commission. V ry,best�regards, Jo D�Keenan, Ci y olicitor En cc. Deborah Burkinshaw, City Clerk State Ethics Commission James G. Gilbert, Asst. City Sol. G y 4