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103 SCHOOL STREET - ZBA (2) 103 School St. B_1 Administrative Rut.,; I lnng - -- -- - -- l� I � J „r, h I .1 KEVIN T. DALY >f LEONARD F. FEMINO ASSISTANT CITY SOLICITOR T'y ASSISTANT CITY SOLICITOR 93 WASHINGTON STREET Orr, 93 WASHINGTON STREET AND CITY OF SALEM, - MASSACHUSETTS AND ONE CHURCH STREET MICHAEL E. O'BRIEN ONE SCHOOL STREET SALEM, MA 01970 BEVERLY. MA 01915 745-4311 CITY SOLICITOR - 745-4311 93 WASHINGTON STREET 745.0500 AND 921-1990 PLEASE REPLY TO ONE CHURCH STREET 81 WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET SALEM, MA 01970 745-4311 744-3363 PLEASE REPLY TO St WASHINGTON STREET February 13 , 1989 James M. Fleming, Chairman m Salem Board of Appeal m One Salem Green c Salem, Massachusetts 01970 2=) L m c 00 Re : Romanovitz m� v Tm Board of Appeal, et al �� s " Essex County Superior Court #88-2701 N GO Dear Mr. Fleming: Please be advised that on January 13 , 1989 I participated in a hearing on plantiff ' s motion for entry of final decree in the above matter. After hearing, the court (Kelly, J. ) verbally announced a finding in favor of the plaintiff. I recently received a Memorandum and Judgment and I am enclosing a copy for your records . As the entry of Judgment is dated February 6 , 1989 , any appeal must be entered by March 8 , 1989 . I have reviewed Judge Kelly' s memorandum and I find . the same to be based upon sound legal principles . Accordingly, I would not recommend an appeal as the same may be considered frivilous. Lastly, it is my understanding that various individuals have requested a new administrative decision from the Building Inspector. Depending upon his response, the matter may again be before your body in the near future. er truly you ichael E. O i City Solicitor MEO/jp Enclosure cc: Building Inspector Councillor Sarah Hayes _t COMMONWEALTH OF MASSACHUSETTS ESSEX, ss SUPERIOR COURT CIVIL ACTION No. 88-2701 H. DREW ROMANOVITZ, Plaintiff y i. CITY OF SALEM AND SALEM BOARD OF APPEALS, SARAH M. HAYES, ET AL,' Defendants MEMORANDUM AND ORDER ON P •ATNTTFFIS MOTIONS FOR ENTRY OF FTNA nFc E AND TEMPORARY RESTRAINING ORDER AND PERMANENT IN NCTTON Background: The plaintiff owns a commercial building at 103 School Street in Salem, Massachusetts, which was used as a supermarket and zoned as nonconforming. On April 23, 1988; ,the plaintiff was granted a change of nonconforming use permitting him to use the building as storage units. On May 12, 1988 the Defendant, Sarah M. Hayes, wrote to the city Building Inspector who had granted the plaintiff's permit. In that letter Ms. Hayes argued that the use of the School Street building as storage violated the zoning ordinance and she William Monroe, James Fleming, Richard Benc al, John Matting, Edward Luzinski, Peter Strout, Peter Dore, Arthur Levesque. 2 requested the inspector to "take all action necessary to remove the use from the building. . . . " On May 23 , 1988 , the Building Inspector replied to Ms. Hayes ' letter. He countered that the use was not in violation of the zoning ordinance and argued his reasons for that conclusion. On June 1, 1988 , Ms. Hayes acknowledged the Inspector's letter, provided an apt rebuttal and requested the Inspector inform her of the Board of Appeal review process if he refused to remove the permit. The Building Inspector did not reply. On July 21, 1988, the defendant Hayes filed a petition for administrative ruling with the Salem Board of Appeals. On August 24 , 1988 the Board held a hearing, allowed the petition and overruled the Building Inspector's decision. On October 13 , 1988, the plaintiff brought this action appealing the Board's action. He now moves for an entry of final decree annulling the Board' s reversal of the Inspector' s decision on the grounds that defendant Hayes ' petition to the Board was time barred thus destroying the Board' s jurisdiction over the appeal. In the alternative, the plaintiff asks this Court to issue Temporary Restraining Orders. Discussion• General Laws Chapter 40A, sec. 8 allows persons "aggrieved by an order or decision of the inspector of buildings. . . " to appeal to that decision. G.L. c. 40A, sec. 8. Massachusetts Feather Co. v. Aldermen of Chelsea, 331 Mass. 522 (1954) . Such an appeal must be "taken within thirty days from the date of the order or decision 3 which is being appealed. " G.L. C. 40A, sec. 15, Vokes v. Lowell Inc Avery W Lowell , Inc- , 18 Mass. App. Ct. 471, 479 (1984) , rev. den. Mass. 1103 (1985) . The Appeals C 393 Court held that "the date on which a zoning enforcement officer responds in writing to a sec. 7 request for enforcement creates the appealable decision contemplated by sec. 8 and becomes the date for measuring the thirty day appeal period set forth in sec. 15. " Id. The plaintiff argues that on May 23, when the Salem Building Inspector responded to defendant Hayes ' letter of May 12, the thirty day time limit for Hayes ' appeal to the Salem Board of Appeals began to run. The defendants counter that when Hayes wrote again on June 1, and the Inspector gave no second response so that under G. L. c. 40A, sec. 13 ,2 the defendants ' appeal time began to run on July 1. I disagree. The defendants ' conclusions completely ignore the first round of letters exchanged between defendant Hayes and the Building Inspector. They offer no argument of any kind for why this first round of letters should be ignored. I can find no reason why the May letters should not have legal force and every reason why they should. If one can escape mandatory time limits by merely ignoring those events legally determined to trigger the limits,` then the statute of limitations is meaningless. To the contrary, 2 G.L. C. 40A, sec. 13 applies failed to respond where the authority has be consto a request. It allows that such failure will ered a denial if no answer is given in thirty-five days from idthe date of request. Thus, a party in that situation have an additional thirty days to appeal after the constrictive would denial was deemed to issue. G. L. C. 40A, sec. 13 . 4 compliance with statutory time restraints are essential to jurisdiction. Greeley v. Framingham, 350 Mass. 5512 , 552 (1966) . The plaintiff' s second motion was offered only in the alternative and therefore need not be addressed. ORDER For the foregoing reasons it is hereby ORDERED that the plaintiff' s motion for Entry of Final Decree on the Salem Board of Appeal ' s decision for lack of Jurisdiction is GRANTED. It is further ORDERED that the Board's decision is annulled and the building permit numbered 241-88 is hereby reinstated without change. Date; char S . Kelle Justice of the S perior Court COMMONWEALTH OF MASSACHUSETTS Department Of The Trial Court Essex, ss. Superior Court No. 88-2701 H . Drew Romanovitz vs. City 0£ Salem And Salem Board Of Appeals, at al JUDGMENT This cause came on for hearing before the Court, Kelley, J. presiding, and the issues having been duly heard and findings having been duly rendered, It is Ordered and Adjudged; the plaintiffts motion for Entry of Final Decree on the Salem Board of Appeals decision for lack of Jurisdiction is Granted. It is further Ordered that the Board' s decision is annulled and the building permit numbered 241-88 is hereby reinstated with. out change. The Clerk-Magistrate of the Court is directed to mail an attested copy of this judgment within thirty days from the date hereof, to the City Clerk, Building Inspector, and Board of jAppeals respectively of the City Of Salem. V Dated at Salem, Massachusetts, this bth day of February, 1989. k Y Assistanter To : Board of Appeals From: H. Drew Romanovitz , Respondent Re: Permit for 103 School Street, Salem ISSUE:: WHETHER A BUILDING PEPUMIT ISSUED TO RESPONDENT FOR TUT SCHOOL STREET, SALEM, IS LEGAL AND VALID FACTS: The Respondent , H. Drew Romanovitz, is the owner of a commercial building located at 103 School Street, Salem, Massachusetts . The building was used in the past as a variety store. The owner closed the variety store and requested a building permit to construct "mini-storage" space. It is the owner' s intention to rent out soace in the building for non-hazardous storage materials . A building permit was issued by the zoning enforcement officer, William H. Monroe, on April 26, 1933. The permit fee of $245. 00 was paid to the City of Salem. In May of 1933 , City Councillor Sarah M. Hayes expressed her concern to Mr. Monroe that the "mini-storage" use was not in the best interest of the surrounding neighborhood. She now brings this issue before the Board of Appeals. ARGUMENT: The building at 103 School Street is located in a B-1 zone, which permits numerous types of businesses to operate therein. Businesses allowed in a B-1 zone include variety and grocery stores , bakeries , drugstores , liquor stores , gift stores , florist shops , batiks, barber shops, laundry and dry cleaners, tailor shops , appliance repair shops , professional offices and restaurants , to :pane a few. Although the City of Salem' s zoning ordinance does not mention a "mini-storage" business , this type of use is clearly less intrusive than the businesses or uses allowed as mentioned above. Like video stores , mini storage businesses have just recently come into existence, and, therefore, the dated zoning ordinance would not specifically address or categorize this particular type of business . Since a mini-storage business fits into a B-1 zone category, the building permit issued is legal and binding and should not be questioned by City Councillor Hayes. There is ao valid need to review the decision of Cir. Monroe, who issued the building permit. It is cozmon practice for the building inspector/zoning enforcement officer to use his qualified discretion and experience to place a "use" on a building, which is not covered by the Zoning By-Laws , into a zone category as he sees fit. In this matter before the Board of Appeals , Mr. Monroe carefully placed the mini-storage business in a B-1 zone, which neither made said business intrusive or non-conforming to the surrounding neighborhood. Its. Hayes also indicates that the mini-storage business is a non-conforming use and should not be allowed in a B-1 zone. Respondent disagrees with Ms. Hayes ' contention that the pre-existing and present use were non-conforming. The former use, a variety store, is listed under B-1 zones. :fassachusetts General Laws Chapter 40A Section 6 governs pre-existing non-conforming structures or uses . Said statute allows pre-existing non-conforming structures or uses to be extended or altered provided that the change or extension shall not be substan- tially more detrimental than the prior existing non-conforming use to the neighborhood. It is Ms. Hayes' contention that the new non-conforming use of the building is "less appropriate" than the former non-conforming use. Even if the present use (mini-storage) is non-conforming as is alleged, there are several Massachusetts cases which address the issue of whether a current "use" fits within the exemption granted to non-conforming uses. Three tests were stated in the case of Town of Bridgewater v. John Chuckran, 351 Mass 20 , 217 N.E. 2d 7 ( ) . The tests were: (1) whether the use reflects the "nature and purpose" of the use prevailing when the zoning by-law took effect; (2) whether there is a difference in the quality, character, and degree of use, and (3) whether the current use is different in kind in its effect on tine neighborhood. Clearly, the conversion of a busy variety store, with its associated daily traffic, to a non-hazardous , "dead storage" space building with little traffic is less intrusive and of lesser degree of character and use to the surrounding neighborhood. The storage building would absolutely fit into the neighborhood, being less detrimental to the surrounding neighbors and abutters than was the variety store. The storage 'business is set up for customers to store their belongings in private cubicles for the period of their lease. The storage business is most likely the least "active" business that could possibly occupy said building. There will be less customers and traffic at 103 School Street than there was prior with the variety store at this location. Ms . Hayes ' contention that the alleged new non-conforming use is not as appropriate as the prior use is not based on facts or reason. CONCLUSION: The building permit issued by Zoning Enforcement Officer William H. Monroe is a legally issued building permit and not subject to further question or review. 4Rese m' tted, rew anitz Respondent fit of �$ttlem, C4Ra56ar4USrt PDBCb Of 4pral 4E DECISION ON THE PETITION FOR AN ADMINISTRATIVE RULING OF SARAH M. HAYES FOR PROPERTY LOCATED AT 103 SCHOOL STREET (B-1) A hearing on this petition was held on August 24, 1988 with the following Board Members present: James Fleming, Chairman, Messrs. Nutting, Luzinski, Labracque, and Dore. Notice of the hearing was sent to the owner at the property, abutters, and others, and notices of the hearing were properly published in the Salem Evening News in accordance with the provisions of Massachusetts General Laws, Chapter 40A. The petitioner, Sarah M. Hayes, the duly elected Councillor from Ward Six, stated that the Building Inspector granted the owner of the property a building permit to convert an existing neighborhood grocery store to a new use "storage warehousing". The petitioner asked for an administrative ruling from the Board of Appeals that such use, that is "storage warehousing" is not apermitted use in a B-1 District. The owner of the property, Drew Rcmanovitz, was present and argued that "storage warehousing" was a permitted B-1 use, and submitted a written brief in support of that position. Several abutters and neighbors also appeard at the hearing and spokeagainst allowing the property to be utilized for "storage warehousing". They also submitted a written brief. The Board of Appeal, after careful consideration of the evidence presented, makes the following finding of fact: 1. The intended use, "storage warehousing" is in fact covered by the terms of the Salem Zoning Ordinance, Section V, 6 (f) , and that therefore, by implication is not a permitted use in a B-1 District, as those uses are enumerated in Section V,4. On the basis of the above finding of fact, and on the evidence presented at the hearing, the Board of Appeals voted unanimously, I r DECISION ON THE PETITION FOR AN ADMINISTRATIVE RULING OF SARAH M. HAYES FOR PROPERTY LOCATED AT 103 SCHOOL STREET (B-1) SALEM 5-0 to allow the petition for an administrative ruling and to order the Building Inspector to revoke Building Permit 241-88 forthwith. ALLOWED I James M. Fleming, Esq. Chaianan, Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK APPEAL FROM THIS DECISION, ;F ANY. SHkLL BE MADE PURSUANT TO SECTION 17 OF THE "',W GENERAL LAYS CHAPTER EOE, ANTI SHALL BE F;!G; WTHIN 20 DAYS AFTER THE DATE a31 OF THIS DECISION IN THE OFFICE 0 THE CITY CLERK. PL'RS,';T TO PASS. CE:'E2:,_ LL.:S. C. --_i RD,. 11. THE VARIA;Cc L'nA.:J HSREIN. SH�i.! N.:: l EFiti.� UNTIL A COPT OF THEDFC_' I Fh Lr- DF 1HE LY,-! C-ER, A OFH LIAs'-,D N' F SII-.II AN APF'.. h D` N G!E THAI IT l.; THE ',MH ESS i.;.IS'F -_:�C ,. tEL` 'ul. _ .. OF RECORD OR IS RECORDED AHD N3;1' ON THE OYI� :R'S CLRiIFICHTE OF TITLE. BOARD OF AP=En; COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. TRIAL COURT DEPT. SUPERIOR COURT C.A. NO. 88-2701 co H. DREW ROMANOVITZ , o PLAINTIFF < '*' ;p o 0 V. ANSWER CnC � �< o CITY OF SALEM, "rn SARAH M. HAYES, WILLIAM MUNROE, 3 y JAMES FLEMING, RICHARD BENCAL, co r JOHN NUTTING, EDWARD. LUZINSKI, N d iILTEt SIROU1 , PETER DORE, ARTHUR LABRECQUE, ' DEFENDANTS F' Now come the above captioned defendants and answer the plaintiff ' s numbered Complaint as follows : 1 . Admitted. 2 . Admitted . 3 . Admitted. 4 . Admitted. 5 . Admitted as to the allegations, but denied as to the defendant' s name which is John Nutting not John Matting. 6 . Admitted 7 . Admitted 8 . Admitted 9 . Admitted to the allegations, but denied as to the defendant' s name which is Arthur Labrecque not Arthur Levesque. 10 . Admitted to the allegations, but denied as to the defendant's name which is .William Munroe . not W.ill .am Monroe. 11 . Admitted 12 . Admitted 13 . The defendants are without sufficient knowledge or information to form a belief as to the allegations contained. in paragraph thirteen ( 13 ) of plaintiff ' s c= L6 Complaint. y Co V) 14 . The defendants are without sufficient knowledge or = i information to form a belief as to the allegations Uj w m La contained in paragraph fourteen ( 14 ) of plaintiff ' s qclT-j Complaint., - W 4 lau- en Da 4f 1 a2 � V l �J lel mrr ..- m - o > it Qw .T_ 2 tU N N � N p 1� Lr Z -# •� i N CJ X1.1 O c?i ch 15 . Admitted 16 . Admitted 17 . Admitted 18 . Admitted 19 . Admitted 20 . The defendants deny that the use of the plaintiff ' s property for mini-storage space is a permitted use in a B-1 zoning district and admit the remaining allegations contained in paragraph twenty ( 20 ) of plaintiff ' s Complaint. 21 . Admitted 22 . The defendants are without sufficient knowledge or information to form a belief as to the allegations contained in paragraph twenty-two ( 22 ) of plaintiff ' s complaint. 23 . The defendants ,are without sufficient knowledge or information to form a belief as to the allegations contained in paragraph twenty-three ( 23 ) of plain- tiff ' sComplaint. 24 . The defendants are without sufficient knowledge or information to form a belief as to the allegations contained in paragraph twenty-four ( 24 ) of plain- tiff ' s Complaint. 25 . The defendants , and specifically the defendant mem- bers of the Salem Board of Appeals , are without sufficient knowledge or information to form a belief as to the allegations contained in paragraph twenty- five ( 25 ) of plaintiff ' s Complaint. 26 . Denied 27 . Denied WHEREFORE, the defendants, and specifically the defen- dant members of the Salem Board of Appeals, demand that Count I of plaintiff ' s Complaint be dismissed or in the alternative that a finding be entered in favor of the defendants. COUNT II 28 . The defendants, and specifically the defendant, Sarah M. Hayes , reallege their/her answers to paragraphs one ( 1 ) through twenty-seven ( 27 ) of plaintiff ' s Complaint as if fully set forth herein and incorporates them by reference. 29 . Denied 30 . Denied 31. The defendant, Sarah M. Hayes, denies that she committed malicious acts or that the plaintiff has been irreparably harmed. The defendant, Sarah M. Hayes, is without suffi- cient knowledge or information to form a belief as to the allegations contained in paragraph thirty-one ( 31 ) of plaintiff ' s . Complaint. WHEREFORE, the defendants, and specifically the defendant Sarah M. Hayes demand that Count II of plaintiff ' s Complaint be dismissed or in the alternative. that a finding be made in favor of the defendants . COUNT III 32 . The defendants, and specifically the defendants City of Salem and William Munroe, reallege their answers to para- graphs one ( 1 ): through thirty-one ( 31 ) of plaintiff ' s Complaint as if fully set forth herein and incorporate them by reference. 33 . Admitted 34 . Admitted 35 . Admitted 36 . . The defendants ,. and specifically the defendants City of Salem and William Munroe, admit the permit was revoked and a Stop Work Order was placed on the plaintiff ' s building, but they are without sufficient knowledge or information to form a belief as to the remaining alle- gations contained in paragraph thirty-six ( 36) of plain- tiff ' s Complaint. 37 . The defendants , and specifically the defendants City of Salem and William Munroe, are without sufficient know- ledge or information to form a belief as to the alle- gations contained in paragraph thirty-seven ( 37 ) of plaintiff ' s Complaint. WHEREFORE, the defendants, and specifically the defen- dants City of Salem and William Munroe, demand that Count III of plaintiff ' s Complaint be dismissed or in the alternative that a finding enter in favor of the defendants . COUNT IV 38 . The defendants , and specifically the defendant, James M.+' Fleming, reallege their/his answers to paragraphs one ( 1 ) through thirty-seven ( 37 ) of plaintiff ' s Complaint as if fully set forth herein and incorporate them by reference. 39 . Admitted 40 . Admitted 41 . Admitted 42 . Denied 43 . The defendants admit the Board of Appeals found in favor of the petitioner, but deny it was on the recommendation of James Fleming, as he has only one vote on said Board . 44 . Denied 45. The defendants, and specifically the defendant, James M. Fleming, denies bias and prejudice on the part of the defendant', James Fleming. The defendants, and specific- ially the defendant, James Fleming, are without suffi- cient knowledge or information to form a belief as to the remaining allegations contained in, paragraph fourty- five ( 45 ) of plaintiff ' s Complaint. WHEREFORE, the defendants , and specifically James M. Fleming, demand that Count IV of plaintiff ' s Complaint be dis- missed or in the alternative that a finding enter in favor of the defendants . FIRST AFFIRMATIVE DEFENSE The Complaint fails to state a claim or cause of action against all the defendants upon which relief can be granted . SECOND AFFIRMATIVE DEFENSE Counts II., III and IV contain an ad dammum or monetary amount claimed against the defendants Sarah M. Hayes , City of Salem, William Munroe and James Fleming in contravention of Mass- achusetts General. Laws Chapter 321 § 13B. THIRD AFFIRMATIVE DEFENSE The plaintiff has failed to exhaust his administrative remedies prior to the filing of this Complaint. FOURTH AFFIRMATIVE DEFENSE There has been insufficient process and service of process in that plaintiff ' s remedy, if he has one, is under Massachusetts General Laws Chapter 40A §17 which is exclusive. 4' ALL DEFENDANTS CLAIM TRIAL BY JURY OF ALL ISSUES AND COUNTS TRIABLE BY A JURY City of Salem, Sarah M. Hayes', William Munroe, James Fleming, Richard Bencal , John Nutting, Edward Luzinski , Peter Strout, Peter Dore, Arthur Labrecgue by the ' attorney : �. - Mij6hael E. O'Brien City Solicitor 81 Washington Street Salem, MA 01967 Telephone 744-3363 Dated: November 7 , 1988 COUNTERCLAIM By way of Counterclaim against the plaintiff, the defen- dants City of Salem, Sarah M. Hayes, William Munroe, James Fleming, Richard Bencal, .John Nutting, Edward Luzinski , Peter Strout, Peter Dore and Arthur Labrecque say: ' 1. The plaintiff , defendant in Counterclaim, maliciously and without bais in law brought this suit against the de- fendants with the intent and purpose of injuring the de- fendants for which legal process was not intended or de- signed. 2 . As a result thereof , the defendants, plaintiffs in Counterclaim, sustained damage. WHEREFORE, the defendants, plaintiffs in Counterclaim, demand judgment against the defendants in an amount commen- surate with their damage and costs . Certificate of Service I , Michael E. O' Brien, hereby certify that I mailed, pos- tage paid, a copy of the within Answer and Counterclaim to Paul J. Semenza, Esq. , 25 Lynde Street, Salem, MA 01970 a torney_ for H. Drew Romanovitz . yzJ is ael E. O' Brien Dated : November 7 , 1988 F' (TO PLAINTIFF'SfATTORNEY: Pl jre Cock 7y p, ,,t A,tu u !unh cJ. — TORT— MOTOR VEHICLE TORT — CONTRACT— EQUITABLE RELIEF —OTHER.) COMMONWEALTH OF MASSACHUSETTS ESSEX,ss, SUPERIOR COURT. r CIVIL ACTION"- _ No. 88-2701 H. DREW ROMANOVITZ C . ...............................................Plaintiff s n .r r . -•C Um �rn CITY OF SALEM, et al .................................................. ...................Defendant(ii m chi- C2 t 2 di __.................... _............................................. - O a V, = = SUMMONS 3 To the above named Defendant: William Monroe E e Paul . yah d You are hereby summoned and required to serve upon ..... J ........................S.................emenza............................. f = plaintiffs attorney, whose address is Z5...I-Ynd-e...S.tr.ePt....Salem,...Massachusettsan answer tother- s a complaint which is herewith served upon you, within 20 days after service of this summons upon you, ezcltr- x 8 m sive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief de-- N T manded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at ....Salem............................. either before service upon plaintiff's attorney or within a reasonable s . - 3 time thereafter. ' Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim or you will thereafter be barred from making such claim in any other action. ROBERT L. STEADMAN Z P(SEITNESS, T�}n>Esquire,at Salem, the 19th ' " z g COP y of October in the year of our Lord one thousand h�fF f�g ine hundred and eighty- eight. Z C� Clerk NOTES: 1. This summons is issued pursuant to Rule a of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved,the names of all defendants should appear in the caption. If a separate summons is used for each defendant,each should be addressed to the particular defendant. Office #30 xwt , M i CO."'IM TEALTH OF B.ASSACHUSETTS Essex, ss . Trial Court Department Superior 'Court Civil Action No `=r g , H. Drew Romanovit2, * r ) xz Plaintiff 'ro xc .n „"- < ski •�+�rt,4s.�*� ��...3 , „� '� '� V. , •:* ' ~. :"ya �) > S �`£� x tgp yrs#- ' COMPLAINT- City of Salem, s * ' Sarah M. Hayes , William Monroe* "-� � ' f"t :• D James Fleming, Richard Bencal,* John Matting, Edward Lu2inski,* Peter Strout, Peter. Dore, ; Arthur Levesque, - Defendants " PARTTES F ( 1) The Plaintiff, H. Drew Romanovit2, is a natural person of legal age and resides at 57 Atlantic Road,. ""' R Gloucecter , Ernex County, Commonwealth of Massachusetts. ( 2) The Defendant, Sarah M. Hayes; is a natural person and a City Councillor for Ward Six in Salem, Massachusetts. (3) The Defendant, James Fleming, is a member of the Board of Appeals for the City of Salem and resides at `47 ' Bufum Street, Salem, Essex County, Massachusetts. ( 4) The Defendant, Richard Bencal, `is a member of the Board of Appeals for the City of Salem and resides at 19 , Goodell Street, Salem, Essex County, Massachuseyktts. ' '; x r " ( 5) The Defendant, John Matting, $s a member of the ,„ - Board of Appeals for the City of Salem and resides at 68 ' Moffatt Road, Salem, Essex County, Massachusetts.;” k°' z (6) The Defendant, Edward LuainskiJ, is armember"of -the ) Board of Appeals for the City of Salem and resides at 25 Hardy Street, Salem, Essex County, Massachusetts.d (7) The Defendant, Peter Strout, is a member of the'- Board of Appeals for the City of Salem ana resides at 1.44 Lafayette Street, Salem, Essex County, 'tassachuretta. ( 8) The Defendant , Peter Dore, is a member of the Board of Appeals for the City of Salem and reside^ at 17. aentley Street, Salem, Essex County, 'lassachusetts . p (9) The Defendant, Arthur Levesque, is a member kof rttier ;. Board of Appeals for the City of Salem and resides at .L'1111 t M iazel Street, Salem, 7nser. County, "asnachusetts. ,9 ( 10) The Defendant, William "•.onroe, ir- a natural., person" ' of legal age and is the Building Inspector for the City o€t—i4 -f4v Salem and has a usual place of business at lane Salem Creep;, Salem, Essex County, ".assachusetts. ( 11) On information and belief, the Defendant, Citysof , Salem, is a municipal corporation duly organized in the- '` Commonwealth of Massachusetts and with a principal Place of business at Washington Street, Salem, Essex County, - .#<s:, Massachusetts. FACTS X12) The "laintiff is the owner of a -ommercial building located at 103 School Street, Salem, rosea ^.ounty, "assachusetts, and is zoned B-1. ( 13) For the past several years, the building ' s sole use was that of a medium 74zed ^supermarket, wh ..ca alao sold uor on the prem i.q ' re� ( 14) Tn "ay 1987 the Plaintiff cloned pis cuiermar!;et/liquor store and made plans to convert the building into mini-storage space for rent. ( 15) On or about 'larch 15, 1.988, the P:iaintiff conferred with the Building Tn-.vector of Salem regardng the use of his building for storage space. ( 16) On or about '?arch 15, 1988, the Plaintiff requested a building permit to construct the mini-storage unite inside the building . ( 1-7) On or about Anril 25, 1988, the Building Inspector granted the Plaintiff a building permit as requested . I 1 Y vLF�. ( 18) On or about July 18, 1988, Ward Six Councillor Sarah ?t. Iayes oppossed the use of Plaintiff 's building as mini-storage space and requested a hearing before the Board of Appeals to revoke the building permit issued to the Plaintiff. (19) During the hearing of August 24, 1988, the Board,of .; Appeals orally stated that the use as "mini-storage" of the : .. building at 103 School Street was not a permitted use in B-1 zone. (20) The use of the Plaintiff ' s property for mini-storage space is a use permitted in a B-1 zone although such a business was not specifically listed and said position .;" is being and was supported by Mr . William Monroe, the Building Tn5pector for the City of Salem. ( 21) The Plaintiff was instructed to stop all k construction on said building and the Salem building inspector has placed a "Stop Work" notice on the Plaintiff 's building . ( 22) On or about August 24, 1988, the Plaintiff had completer] approximately 90% of the constructing and reconstructing of the building . ( 23) The Plaintiff has invested and/or lost over $500, 000 in the building since the issuance of the building permit by the City of Salem's building inspector . (24) The Board of Appeals has failed to issue its final decision and/or to file that decision with the City Clerk 's office. COUNT T ( 25) The Plaintiff states that the Plaintiff ,s intended 1n 1, use of the building is less intrusive and of',a lesser degree Uye of character and use to the surrounding neighborhood than:>the - -; previous use, leaving no logical reason for the Board of Appeals to revoke the building permit previously issued �r<. by" �-- the Building inspector . " (26) The Board of Appeals further failed to state its reasoning behind its decision. (27) The Board of Appeals exceeded its 'authority vested in it by the City of Salem. $yF' 4L r`nwc - YF'G` +Is�°�Tt,.• X 4 t Y :]IiFRF.FOR^_., under Count ' , the Plaintiff :eques.ts" thi3 :onorable Court to annul the deci.^ion of the 30 ad of. Appeal,.- and ppealsand allow the Plaintiff to une the building as mini-stoiage ej space for rent to the vublic and further order the Building Inspector to reinstate the previously issued building permit without change. Tr ! COUNT IT a lka ( 28) The Plaintiff realleges paragraphs 1=27 ,of this N';u iQ ` Complaint as if ful '_y set forth herein and incorporates them by reference. ( 29) The Defendant Sarah M. Hayes ', opposi>tion to the Plaintiff ' s use of the building as mini-storag,e' unitstfor rent was made in bad faith and made maliciou^ly with the intent to cause harm to the Plaintiff. (30) The Petition filed by the Defendant Sarah 'i. .Hayes 9 contain; false information and is inaccurate and drafted to mislead the Board of Appeals. ( 31.) As a renult of the Defendant Sarah Hayes '""' maliciou.^ actn , 'the Plaintiff was irreparably harmed : • }Has lo.^t his monies, paidto his contractor ; ha^ loat his money and materia. = invested in the building intended for mini-storage use; ha^ completely gutted the building ; has at a substantial loss sold equipment and furnishings and the ^tore ' s contents; has been forced to leave the building vacant while continuing to pay its debts ; and has been forced to expend monies for 'legal fee; and costs in bringing this action ; and , as a result of the '.evocation of the building .permit, substantial damage to the building has resulted . '.'.':ir-RFFORF, under Count I.'. , the Plaintiff demands judgment against the Defendant Sarah M. Hayes in the amount of $500, 000 . 00 plus costs, interest and attorney 's fees . ^OUNT II_T. 4 p (32) The Plaintiff realleges paragraphs 1-31of this Complaint as if fully set forth herein and incorporates them by reference. ( 33) The Defendant, S4illiam Monroe, is the Insoector of Buiidingr for the City of Salem and has vested powers .to issue building permits in accordance with Salem's Zoning q F L Ordinance . ( 34) On or about April 25, 1988, Mr . Monroe issued a . buil"ding permit to the Plaintiff with the knowledge. that the Plaintiff intended to construct mini-storage units for the purpose of renting said units to the public. -:_ (35) Uoon reliance on Mr. Monroe ' s issuance of the building permit and oral and written representations that a mini-storage business was a permitted use, the Plaintfff '', ; began construction of the mini--.storage units31 m'a x (35) The Plaintiff " nearly completed all ofh kk construction necessary to do business as a mini-storage: company ,when the permit issued by Mr . Monroe was revoked.- and a Ston '•'o:'< Order was placed on the Plaintiff 's building. ( 37) As a result of the Plaintiff 's reliance on.i,£he Defendant William Monroe in his capacity of Inspectorlof Ct•s 3ui=dings for the City of Salem, the Plaintiff has expended sub,tantia: funds in constructing the storage units,:�has taken the building off the market to be sold, and hast;;- ,uffered consequential damages in that because the Plaintiff ` is unable to complete the construction of the storaunits, the mater _als have been damaged by normal exposure-which . wou : d not occur if the units had been completed . under Count .T.II the Plaintiff demands judgment against the Defendants City of Salem and William Monroe jointly ;:nd severally in the amount of $750, 000. 00 plus '_merest , coats and attorneys fees. ClUam TTJ The Plaintiff realleges paragraphs 1-37 of this ^cmnlai.nt if fully set forth herein and incorporates them by reference. ,-`; ( 39) The Defendant James Fleming is the chairman-of the M r 3oard of Appeals of Salem, Massachusetts. vO ( 40) The Defendant .Tames Fleming is also the brother of lard r �*, 1 i41 ) On or about August 24, 1988 the Defendant James 71eming -)resided over a Board of Appeals hearing in "which his ter , F-arah 6',. "ayes, was the petitioner . 6 '. . .hough a clear conf 1 ct of interest existed for 'a .e- 71 em-, ng to n:eside over the hearing, he f.=. -"used ani neglecter? to remove or withdrawthimself f k4Y; ; 43` t:n the :ecosrmendati.on of James Fleming,':_ the Board k %: f '.�-�^.:: - found in favor of the netitioner and revoked the bui _ding permit. ; 44: The noarrl of Annear dec ' sion was prejudicial and it'At?3 n a-c' n- t th ; - ?laint : fF . • t � S T F I 'C ; 4 `. - a result of the h`. as and prejudice of ':'the 'Ie fenr?:Ma..meci Fleming, the plaintiff was irreparably_ : "a- . ost h's monies paid to his contractor';t-has,_lost r..on . r ani? materials 'invented in the building . :irntended m -, �orage u^e; has comn' ':,teiy gutted the building.; as at a Jnt .ai .los^ naL, equipment and furnishings-,;,:and the' o ' intents ; has been forced to leave the building " ` *`71 ' continuing to nay itn debts ; and has been:'f.orced f -c legal fees and torts in bringing tti' s u^ . cn : ' , a^ a _ ult of the :evocation of the 4111 ing , nc, c , )-tantia damage to the building has resulted ". r ft,,. !;!r-7),77-- under Count ?V, the ?iaintiff demands judgement ^efcndant ,yam-a^ P _cm . ng in the amount of r . ^ plop :nte:est, ^.o-t•- and attorneys fees ' 4�* 13 . Drew Romanovitz ry 'ly his attorneys, >_ y., h Yi .. ?5 *rynde Street Salem, "a.^sachu^etts :,;. Tci . ( 508) 745-5151 '+ �a .y :' aN'uc .', KEVIN T. DALY .r::1' , ` LEONARD F. FEMINO ASSISTANT CITY SOLICITOR %� meq? ASSISTANT CITY SOLICITOR �rumt 93 WASHINGTON STREET 93 WASHINGTON STREET AND CITY OF SALEM MASSACHUSETTS AND ONE CHURCH STREET ONE SCHOOL STREET MICHAEL E. O'BRIEN SALEM. MA 01970 BEVERLY. MA 01915 745-4311 CITY SOLICITOR 745.4311 745-0500 93 WASHINGTON STREET 921.1990 AND _ PLEASE REPLY TO ONE CHURCH STREET 81 WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET SALEM. MA 01970 745-4311 744-3363 PLEASE REPLY TO 81 WASHINGTON STREET z November 7 , 1988 4' Civil Clerk Essex Superior Court 34 Federal Street Salem, Massachusetts 01970 Re : H. Drew Romanovitz v City of Salem, et. als . C.A. No. 88-2701 Dear Sir: Enclosed please find .Answer and Counterclaim of defendants in the above matter. Kindly file the same. Very truly yours, L M' chael E. O' Brien ` 2 City Solicitor c w MEO/jp n�o C �. cc : Paul J. Semenza, Esq. m QD Yrn a qD Cn = y m m COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. TRIAL COURT DEPT. SUPERIOR COURT C.A. NO. 88-2701 4' H. DREW ROMANOVITZ , ' PLAINTIFF v q' � V. ANSWER •,�;� CITY OF SALEM, SARAH M. HAYES, WILLIAM MUNROE, JAMES FLEMING, RICHARD BENCAL, JOHN NUT INN, LDYiARL LUZIN3XI , PETER STROUT, PETER DORE, ARTHUR LABRECQUE, DEFENDANTS Now come the above captioned defendants and answer the plaintiff ' s numbered Complaint as follows : 1. Admitted. 2. Admitted. 3 . Admitted. 4 . Admitted. 5. Admitted as to the allegations, but denied as to the defendant' s name which is John Nutting not John Matting. 6 . Admitted 7 . Admitted 8 . Admitted 9 . Admitted to the allegations, but denied as to the defendant' s name which is Arthur Labrecque not Arthur Levesque. 10 . Admitted to the allegations, but denied as to the defendant' s name which is William Munroe not William Monroe. 11. Admitted 12 . Admitted 13 . The defendants are without sufficient knowledge or information. to form a belief as to the allegations contained in paragraph thirteen ( 13 ) of plaintiff ' s Complaint. 14 . The defendants are without sufficient knowledge or information to form a belief as to the allegations contained in paragraph fourteen ( 14 ) of plaintiff ' s Complaint. 15 . Admitted 16. Admitted 17 . Admitted 18. Admitted 19 . Admitted 20. The defendants deny that the use of the plaintiff ' s property for mini-storage space is a permitted use in a B-1 zoning district and admit the remaining allegations contained in paragraph twenty (20 ) of plaintiff ' s' Complaint. 21. Admitted 22 . The defendants are without sufficient knowledge or information to form .a belief as to the allegations contained in paragraph twenty-two ( 22 ) of plaintiff ' s complaint. 23 . The defendants are without sufficient knowledge .or information to form a belief as to the allegations contained in paragraph twenty--three ( 23 ) of plain- tiff ' s Complaint. . 24 . The defendants are without sufficient knowledge. or information to form a belief as to the allegations contained in para#aph twenty-four (24 ) of plain-, tiff ' s Complaint: 25 . The defendants, and specifically the defendant. mem- bers of the Salem Board of Appeals, are without sufficient knowledge or information to form a belief as to the allegations contained in paragraph twenty- five ( 25 ) of plaintiff 's Complaint. 26 . Denied 27 . Denied WHEREFORE, the defendants, and specifically the defen- dant members of the Salem Board of Appeals , demand that Count I of plaintiff ' s Complaint be dismissed or in the alternative that a finding be entered in favor of the defendants . COUNT II 28 . The defendants, and specifically the defendant, Sarah M. Hayes, reallege their/her answers to paragraphs one ( 1 ) through twenty-seven (27 ) of plaintiff ' s Complaint as if fully set forth herein and incorporates them by reference. 29 . Denied 30 . Denied 31. The defendant, Sarah M. Hayes, denies that she committed malicious acts or that the plaintiff has been irreparably harmed. The defendant, Sarah M. Hayes, is without suffi- cient knowledge or information to form a belief as to the allegations contained in paragraph thirty-one ( 31 ) of plaintiff ' s Complaint. WHEREFORE, the defendants , and specifically the defendant Sarah M. Hayes demand that Count II of plaintiff ' s Complaint be dismissed or in the alternative that a finding be made in favor of the defendants. COUNT III 32. The defendants, and specifically the defendants City of Salem and William Munroe, reallege their answers to para- graphs one (1) through thirty-one (31 ) of plaintiff ' s Complaint as if fully set, forth herein and incorporate them by reference. 33 . Admitted 34 . Admitted 35. Admitted 36 . The defendants, and specifically the defendants City of Salem and William Munroe, admit the permit was revoked and a Stop Work Order was placed on the plaintiff' s ' building, but they are without sufficient knowledge or. information to form a belief as to the remaining alle- gations contained in paragraph thirty-six ( 36 ) of plain- tiff ' s Complaint. 37 . The defendants, and specifically the defendants City of Salem and William Munroe, are without sufficient know- ledge or information to form a belief as to the alle- gations contained in paragraph thirty-seven (37 ) of plaintiff ' s Complaint. WHEREFORE, the defendants, and specifically the defen- dants City of Salem and William Munroe, demand that Count III of plaintiff ' s Complaint be dismissed or in the alternative that a finding enter in favor of the defendants . COUNT IV 38 . The defendants, and specifically the defendant, James M. Fleming, reallege their/his answers to paragraphs one ( 1 ) through thirty-seven (37 ) of plaintiff ' s Complaint as if fully set forth herein and incorporate, them by reference. 39 . Admitted 40. Admitted 41. Admitted 42 . Denied 43 . The defendants admit the Board of Appeals found in favor of the petitioner, but deny it was on the recommendation of James Fleming, as he has only one vote on said Board. 44 . Denied 45 . The defendants, and specifically the defendant, James M. Fleming, denies bias and prejudice on the part of the defendant, James Fleming. The defendants, and specific- ially the defendant, James Fleming, are without suffi- cient knowledge or information to form a belief as to the remaining allegations contained in paragraph fourty- five (45 ) of plaintiff 's Complaint. WHEREFORE, the defendants, and specifically James M. Fleming, demand that Count IV of plaintiff ' s Complaint be dis- missed or in the alternative that a finding enter in favor of the defendants. FIRST AFFIRMATIVE DEFENSE The Complaint fails to state a claim or cause of action against all the defendants upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE Counts II, III and IV contain an ad dammum or monetary amount claimed against the defendants Sarah M. Hayes, City of Salem, William Munroe and James Fleming in contravention of Mass- achusetts General Laws Chapter 321 § 13B. THIRD AFFIRMATIVE DEFENSE The plaintiff has failed to exhaust his administrative remedies prior to the filing of this Complaint. FOURTH AFFIRMATIVE DEFENSE There has been insufficient process and service of process in that plaintiff ' s remedy, if he has one, is under Massachusetts General Laws Chapter 40A 517 which is exclusive. ALL DEFENDANTS CLAIM TRIAL BY JURY OF ALL ISSUES AND COUNTS TRIABLE BY A JURY City of Salem, Sarah M. Hayes, William Munroe, James Fleming, Richard Bencal, John Nutting, Edward Luzinski , Peter Strout, Peter Dore, Arthur Labrecque by the attorney: D � 1 D Brien City Solicitor 81 Washington Street Salem, MA 01967 Telephone 744-3363 Dated: November 7 , 1988 COUNTERCLAIM By way of Counterclaim against the plaintiff, the defen- dants City of Salem, Sarah M. Hayes, William Munroe, James Fleming, Richard Bencal, John Nutting, Edward Luzinski, Peter Strout, Peter Dore and Arthur Labrecque say: 1. The plaintiff, defendant in Counterclaim, maliciously and without bais in law brought this suit against the de- fendants with the intent and purpose of injuring the de- fendants for which legal process was not intended or de- signed. 2 . As a result thereof, the defendants, plaintiffs in Counterclaim, sustained damage. WHEREFORE, the defendants, plaintiffs in Counterclaim, demand judgment against the defendants in an amount commen- surate with their damage and costs . Certificate of Service I , Michael E. O' Brien, hereby certify that I mailed, pos- tage paid, a copy of the within Answer and Counterclaim to Paul J. Semenza, Esq. , 25 Lynde Street, Salem, MA 01970 a }r, for H. Drew Romanovitz. 7 i, c ael E. O'Brien —- Dated: November 7 , 1988