223-231 DERBY STREET & 23 CONGRESS STREET - ZONING 223-231 Derby St & 23 Congress St
ickering Wharf Realty Trust _
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CITY OF SALEM. MASSACHUSETTS
NEIL J. HARRINGTON
MAYOR
December 18, 1997
To the City Council
City Hall
Salem, Massachusetts
Ladies and Gentlemen of the Council:
Enclosed for your consideration is a proposed development agreement which my
administration has been working on in conjunction with the owners of Pickering Wharf,
the purpose of which is to further the planning and construction of a new hotel at the
Wharf within the next two years. This agreement-represents the substantive elements of a
plan to ensure that the proposed hot 1 canbe-p operly financed, that parking concerns at
the site can be met, and that the overall redevelopment of Pickering Wharf is compatible
with the City's goal of adding additional hotel rooms to the waterfront/downtown area.
As you know, earlier this Fall, the City commissioned a professional hotel
feasibility study, with the goal of providing the community with an analysis of the market
potential for additional hotel development in Salem. The study was conducted by the
well-respected firm of Landauer Associates, Inc. The final report from Landauer is due
before the end of the year.
One of the sites evaluated for a potential hotel was Pickering Wharf. In an interim
report to the City, prepared in October, Landauer confirmed that a "limited-service" hotel
in Salem could be considered feasible at the Pickering Wharf site if the City made a
commitment to offer significant incentives to the project. Our discussions with the
owners of Pickering Wharf included the findings of this preliminary work, and focused
on what I believed the City could reasonably offer as an incentive to spur the
development of the first new hotel in Salem in over 70 years.
In summary, as outlined in the proposFd agreement, I agreed to the following: (1)
a Tax Increment Financing (TIP) agreement, (2) the loan of the City's Urban
Development Action Grant (UDAG), (3) the leasing of a fluor in the new South Harbor
SALEM C!TN HALL • 93 WASHINGTON STREE"i . SALFM ImAS SACJIU,HTT"; 0V 570 . 508/745-9595 • FAX 1,03,"i ' ^ 02 :7
L
To the City Council
December 18, 1997
Page 2
garage to the new hotel, and (4) a pledge to apply for whatever state
infrastructure/economic development grant programs could assist the project.
At this point, as I near the end of my tenure in office, I am submitting the
proposed development agreement to the Council secure in the belief that if the terms of
the agreement are carried out, the owners of Pickering Wharf will build a new hotel in
Salem.
I also understand and respect the fact that the Mayor-elect may wish to continue
discussions with the Rocketts, and may wish to alter, enhance or reject certain terms of
the agreement as proposed. I therefore respectfully suggest that the matter be referred to
committee and held over until calendar year 1998.
In closing, I would like the Council and the community to know that I am
finishing my term of office having done everything I can possibly do to help make a new
hotel in Salem more than just a possibility. It is my hope that the new year will bring a
continuation of this effort, so that this project may become a reality.
Very truly yours,
NEIL J:�HA6Z
Mayor
NJHJsmc
MEMORANDUM OF UNDERSTANDING
between the
PICKERING WHARF HOTEL ENTITY
and the
CITY OF SALEM
This document will serve as a Memorandum of Understanding between the City
of Salem and the Pickering Wharf Hotel ENTITY. The items included outline the
expectations and commitments of the two signatory parties. The City of Salem, (CITY)
and the Pickering Wharf Hotel Entity (ENTITY), agree that this Memorandum of
Understanding reflects the status of the project as of 12/15/97 and each party agrees to
work toward the satisfactory completion of all items included herein.
Whereas, the City of Salem has commissioned a hotel study to determine the
market potential for additional hotel development in Salem;
Whereas, the ENTITY has an interest in undertaking a major development of
Pickering Wharf, and
Whereas, the ENTITY believes that the Hotel Study is sufficient evidence that
development of a hotel at Pickering Wharf is feasible; and
Whereas, the Hotel Study, the CITY and the ENTITY agree that such feasibility is
based in part upon the ability to provide public development assistance to the developer;
Now therefore, the CITY and the ENTITY agree to the following:
I. THE HOTEL ENTITY AGREES TO;
1. Purchase and demolish the Eastern Bank building.
2. Relocate Eastern Bank on-site at Pickering Wharf
3. Develop a hotel of not less than 70 and not more than 140 rooms.
4. Provide a similar amount of retail space to what currently exists at Pickering
Wharf.
5. Improve accessibility to the waterfront by utilizing State grant funding to
rebuild the sea-walk around Pickering Wharf(from Congress Street to the
Chase House).
6. Upgrade lighting and street-scape amenities throughout the interior and
exterior of Pickering Wharf.
7. Improve the public open spaces on the interior of Pickering Wharf.
II. THE CITY AGREES TO:
1) Tax Increment Finance Plan as follows:
Year I - 12 100%exemption of new construction
Year 13 80%exemption of new construction
Year 14 60%exemption of new construction
Year 15 40%exemption of new construction
Year 16 20%exemption of new construction
Year 17 10%exemption of new construction
Year 18 0%exemption of new construction
2) Loan to the ENTITY the Urban Development Action Grant funds from the
Salem Armory UDAG. The terms and conditions of the UDAG funding will
be as follows:
Principal amount: $994,00.
Length of term: 30 years
Interest rate: 4%
Repayment schedule: 30 years of equal monthly payments
beginning during the 25' month following
the opening of the Hotel.
3) Lease the 3rd floor of the new parking garage at South Harbor to the ENTITY
for use as valet and other Hotel parking at a rate equal to that being charged
for annual passes at the East India Parking Garage. In addition, the CITY
agrees to incorporate the Pickering Wharf name in the name of the new
garage, i.e., The South Harbor Garage at Pickering Wharf.
III. The CITY and the ENTITY agree to work cooperatively on an application for
funding under the Community Development Action Grant(CDAG), Public Works
Economic Development (PWED) Programs and/or any other appropriate
program(s) which may enhance the development of the new hotel. The CITY
agrees to work diligently to provide the necessary amount of support for gaining
approval for such funding requests.
IV. In the event that the CITY is able to execute an agreement with the New England
Power Company (NEPCO) for a transfer in interest, acquisition or exclusive
rights to the use or lease of the parking lot at 25 Peabody Street, the CITY shall
declare the optimal use of the property to be for the enhancement of the South
Harbor area, including, but not limited to, temporary or permanent parking related
to the redevelopment and future expansion (if any) of the proposed hotel at
Pickering Wharf.
Dated this_day of December, 1997.
CITY of Salem by its Mayor, duly authorized
Neil J. Harrington, Mayor
Pickering Wharf Realty Trust
J. Hilary Rockett,Trustee
CITY OF SALEM, MASSACHUSETTS
STANLEY J. USOVICZ,JR.
MAYOR
MEMORANDUM OF UNDERSTANDING
between the
PICKERING WHARF HOTEL ENTITY
and the
CITY OF SALEM
This document will serve as a Memorandum of Understanding between the City of Salem and
the Pickering Wharf Hotel ENTITY. The items included outline the expectations of the two signatory
parties. The City of Salem, (CITY) and the Pickering Wharf Hotel (ENTITY), agree that this
Memorandum of Understanding reflects the status of the project as of 4/8/98.
Whereas, the ENTITY has an interest in building a new hotel at Pickering Wharf, and
Whereas, the CITY agrees that in order to make the project feasible it must provide
public development assistance to the developer,
Now therefore, the CITY and the ENTITY, agree to the following:
If the Hotel Entity does the following:
1. Purchases and demolishes the Eastern Bank building.
2. Relocates Eastern Bank on site- at Pickering Wharf.
3. Develops a hotel of not less than 70 and not more than 140 rooms.
4. Provides a similar amount of retail space to what currently exists at Pickering Wharf.
5. Improves accessibility to the waterfront by utilizing State grant funding to rebuild the sea-walk
around Pickering Wharf(from Congress Street to the Chase House).
Then the City agrees to provide the following assistance:
1. TIF Plan
In order for the hotel project to be economically viable, the developer requires a multi-year TIF
for the hotel portion of the site only. All newly constructed retail space, including the relocated Eastern
Bank, will be taxed at full valuation. The new retail located in the development will increase the city's
tax base over what is currently received in taxes for the existing retail.
TIF Agreement
The TIF Agreement is applicable only to the use of the structure as a hotel. Should more th.,n
SALEM CITY HALL,93 WASHINGTON STREET -SALEM. MASSACHUSETTS 01970J592 -979/745-9595 -FAX 976,744 9327
ten(10) percent of the total hotel rooms be changed, altered or reconfigured into non-hotel uses by the
developer or subsequent owner, the City reserves the right to negate or renegotiate the TIF Agreement.
However, owner may change, alter or reconfigure more than ten(10)percent for any hotel use,
including a restaurant, lounge, gymnasium, etc., without effecting this agreement.
The Developer also agrees that the ownership structure and operation of the hotel is totally
separate and distinct from the Pickering Wharf Condominium Association.
The TIF schedule:
Year %Exempted
1_5 100
.6-8 90
9 80
10 60
11 40
12 20
13 0
The hotel will also generate room tax calculated at 4% of projected room revenue.
The long term impact of the hotel's presence on the city's economy in terms of property tax,
room tax and parking fees will justify the structure of this TIF plan. The location of the hotel will
generate more business for local retailers, restaurants and tourist destinations.
The Planning Department will begin working with the project proponent to assemble necessary
materials for a TIF package.
2) Parking Garage
The developer requires the lease of at least one parking space per hotel room on the second and
third floors of the South Harbor Garage (currently under construction). The lease rate per parking space
will be $1.25 per diem or $456.25 annually and increase at the rate of other City Parking garages that
are leased on an annual basis. The lease will be in effect for the life of the hotel.
3) CDAG/PWED Funds
The City pledges to work with the Entity in a public/private partnership to secure other state and
federal funds such as CDAG and PWED funds for items such as increasing public access to the
waterfront between Congress Street and the Chase House. This would complete the link from Congress
Street to the NPS at Derby Street.
Dated this day of April 8, 1998.
CITY of Salem by its Mayor, duly authorized . Pickering Wharf Realty Trust
Stanley J. icz, Jr. ayo J. H lary Rockett, Truste
,r
TAX INCREMENT FINANCING AGREEMENT
CITY OF SALEM, MASSACHUSETTS
- — - and
PICKERING WHARF REALTY TRUST
This agreement is made this day of Jury 1998, by and between the CITY OF SALEM, a
municipal corporation duly organized under the laws of the Commonwealth of Massachusetts,
having a principal place of business at City Hall, 93 Washington Street, Salem, Massachusetts,
01970, acting through the Mayor, Stanley J. Usovicz, Jr., (hereinafter called "the CITY"), and
PICKERING WHARF REALTY TRUST, with a principal place of business at 190 Pleasant
Street, Marblehead, Massachusetts, 01945 (hereinafter called "the COMPANY") . This
Agreement will take effect as of July 1, 1999 (Fiscal Year 2000).
WHEREAS, the COMPANY wishes to construct a hotel at Pickering Wharf in Salem; and
WHEREAS, the CITY is willing to grant tax concessions in return for guarantee of the
construction of the hotel property and the creation of employment opportunities for local
workers; and
WHEREAS, the Salem City Council resolved on November 9, 1995 to allow the use of Tax
Increment Financing as a tool to encourage economic development within the Salem
Economic Opportunity Area; and
WHEREAS, the Salem City Council resolved on June 11, 1998 to endorse the Tax
Increment Financing Plan negotiated by the CITY and the COMPANY.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties do
mutually agree as follows:
A. THE COMPANY'S OBLIGATIONS
I . The COMPANY shall develop the hotel property at Pickering Wharf in Salem. "The
FACILITY" as used herein means a building containing approximately 50,000 square
Feet plus site improvements and refers to the Hotel portion only of the project.
2. During the life of this agreement, if the COMPANY decides to sell the FACILITY or the
business or to otherwise transfer control of the FACILITY or business and/or operations
thereof, the COMPANY shall give the CITY at least three months notice of said sale or
transfer. Said notice shall be given by certified mail, return receipt requested, to the
Mayor, City Hall, 93 Washington Street, Salem, Massachusetts, 01970.
B. THE CITY'S OBLIGATIONS
_ 1. The CITY shall grant a tax increment financing exemption to the COMPANY in
accordance with Massachusetts General Laws, Chapter A, Section 3E, Chapter 40,
Section 59, and Chapter 59, Section 5. Said exemption shall be granted on the
improvements to the FACILITY. Said exemption shall be valid for a period of thirteen
(13) years, beginning with fiscal year 2000 (July 1, 1999) and ending with fiscal year
2013. During each year of this agreement, the company will pay taxes based on the base
value of the FACILITY and on that portion of the value of the FACILITY which is not
exempted under the agreement.
The base value is established by the Board of Assessors (the Board) and is the current
value of the FACILITY unless an abatement is approved by the Board.
The exemption schedule on the value of the FACILITY works as follows: For the first
five (5) years, the COMPANY will pay only the base tax bill and will be granted an
exemption of 100 percent of the full value of improvements to the FACILITY. The full
value of improvements to the FACILITY is hereinafter called ` the INCREMENT". In
years six, seven and eight, the COMPANY will pay taxes on 10% of the full value of the
INCREMENT, plus the base tae bill. In year nine, the COMPANY will pay taxes on
20% of the full value of the INCREMENT, plus the base tax bill. In year ten, the
COMPANY will pay taxes on 40% ofthe INCREMENT, plus the base tax bill. In year
eleven, the COMPANY will pay taxes on 60% of the INCREMENT, plus the base tax
bill. In year twelve, the COMPANY will pay taxes on SO% of the NCREMENT, plus
the base tax bill. In year thirteen, the CONIPAtNY will pay taxes on the full value of the
FACILITY.
C. OTHER CONSIDERATIONS
I . This Tax Increment Financing Agreement shall be binding on all subsequent owners of
the property. The City of Salem reserves the right to review and renegotiate the Tax
Increment Financing Agreement if the business activity ceases to be fully operational
during the life of the Tax Increment Financing Agreement.
2. If the COMPANY decides to expand the facility at any time during the life of the Tax
Increment Financing Agreement, the CITY and the COMPANY may renegotiate the Tax
Increment Financing Agreement to exempt all or part of the value of the expansion from
property taxes. The exact amount of that exemption will be determined at the time of
expansion.
Executed as a sealed instrument on the day and year first above written.
CITY OF SALEM PICKERING WHARF REALTY TRUST
Stanley J. Usovi , ., Mayor J. HilaryRoEkett,`Faustee
Notary Public K _
r.
My commission expires � � Q
2,ZS
23 Cov�ress 6+.
COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
ESSEX, ss . Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
VS . ANSWER OF DEFENDANTS,
CITY OF SALEM AND CITY
WALTER B. POWERS, III, CHARLES OF SALEM PLANNING BOARD
M. PULED, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
COUNT I : JUDICIAL REVIEW UNDER G.L. CH. 40A, SEC. 17
1. The first sentence in paragraph 1 of the complaint is admitted;
the second sentence is denied.
2 . The allegations in paragraph 2 of the complaint are admitted,
except for so much thereof as alleges that " (a) copy of the
Decision is attached hereto and marked `A,'" which is denied.
3 . The allegations in paragraph 3 of the complaint that state,
" (t) he complaint also seeks a declaration of rights under G. L. c.
231A with respect to the actions of the Planning Board and the
City of Salem" are admitted; any and all remaining allegations in
1
paragraph 3 are denied.
4 . The defendants are without sufficient knowledge to admit or
deny the allegations in paragraph 4 of the complaint and call upon
the plaintiffs to prove the same.
5 . The defendants are without sufficient knowledge to admit or
deny the allegations in paragraph 5 of the complaint and call upon
the plaintiffs to prove the same.
6. Admitted.
7 . Admitted.
8. Admitted.
9 . The defendants neither admit, nor deny, the allegations in
paragraph 9 of the complaint, but state that the statute
referenced therein speaks for itself; moreover, the defendants say
that the excerpted portions of the statute may not properly be
read and interpreted in isolation from other, pertinent portions
of the statute and/or from the provisions of other relevant
statutes and laws.
10 . The defendants neither admit, nor deny, the allegations in
paragraph 10 of the complaint, but state that the ordinance
referenced therein speaks for itself; moreover, the defendants say
that the excerpted portions of the ordinance may not properly be
read and interpreted in isolation from other, pertinent portions
of the ordinance and/or from the provisions of other relevant
ordinances, statutes and laws .
11 . Admitted, that, " (o) n September 4 , 1997, the Planning Board
adopted a " Master Plan Update . . . , as for the remaining
allegations in paragraph 11 of the complaint, the defendants
neither admit, nor deny, the same, but instead say that that the
2
excerpted portion of the Master Plan Update may not properly be
read and interpreted in isolation from other, pertinent portions
of the Plan and/or from the provisions of other relevant
ordinances, statutes and laws .
12 . Admitted, that, " (o) n August 14 , 1997, the City of Salem
issued a request for a proposal for a consultant to prepare a
hotel feasibility study," and that the passage therefrom quoted in
paragraph 12 of the complaint does appear in the request for
feasibility study; any and all remaining allegations in paragraph
are denied; and further answering, the defendants say that that
the quoted excerpt from the request may not properly be read and
interpreted in isolation from other, pertinent portions of the
request and/or from the provisions of other relevant ordinances,
statutes and laws.
13 . The first sentence in paragraph 13 of the complaint is
admitted; the balance of that paragraph is denied.
14 . The first sentence in paragraph 14 of the complaint is
admitted; the balance of that paragraph is denied.
15 . The first sentence in paragraph 15 of the complaint is
admitted; the balance of that paragraph is denied.
16. Admitted, that the passages quoted from the Landauer Report in
paragraph 16 of the complaint do appear in that report; however,
the defendants say that that the quoted excerpts from the Report
may not properly be read and interpreted in isolation from other,
pertinent portions of the Report and/or from the provisions of
other relevant ordinances, statutes and laws.
17 . Admitted, that, " (o) n May 27, 1999, the Defendant Pickering
Wharf filed a letter purporting to be an application with the
Defendant Planning Board for a `Site Plan Review and Wetlands and
3
Flood Hazard District Special Permit, '" and that the excerpt
therefrom quoted in paragraph 17 of the complaint does appear in
the application; the balance of paragraph 17 is denied; and
further answering, the defendants say that the quoted excerpts
from the application may not properly be read and interpreted in
isolation from other, pertinent portions of the application and/or
from the provisions of other relevant documents, ordinances,
statutes and laws .
18. Admitted.
19 . The first sentence in paragraph 19 of the complaint is
admitted; the balance of paragraph 19 is denied; and any express
or implied allegation that the "objections" contained in the
referenced letter were valid is also denied.
20 . Admitted, that, " (o) n July 28 , 1999, the Trust appeared
through counsel before the Planning Board at its hearing and
presented documents, testimony and argument in opposition to the
application," and that counsel for the Trust made the arguments
set out in the balance of paragraph 20 of the complaint; any
express or implied allegation that counsel' s arguments were valid
and supported by the evidence before the Board is denied.
21 . Admitted, that, " (o) n July 28 , 1999, the Trust presented to
the Planning Board a copy of a report dated January 14, 1997,
previously furnished to the Board, from Pinnacle Advisory Group
. . . entitled: `Market Demand Study for a Proposed Hotel to be
Located in Salem, Massachusetts,'" and that the language quoted
from the report in paragraph 21 of the complaint does appear in
the report; any and all remaining allegations in paragraph 21 are
denied; and further answering, the defendants say that the quoted
excerpts from the report may not properly be read and interpreted
in isolation from other, pertinent portions of the report and/or
4
from the provisions of other relevant documents, ordinances,
statutes and laws .
22 . Admitted, that, " (o) n July 28 , 1999, a principal of Pinnacle
Advisory Group presented testimony to the Board" ; the balance of
the allegations in paragraph 22 of the complaint are conclusory,
seek to characterize the testimony, and are denied; and any
express or implied allegation that the testimony was valid and
supported by the evidence before the Board is also denied.
23 . Admitted, that, "the City has required the Pickering Wharf
Trust to develop a hotel of `not less than 70 and not more than
140 rooms' as part of a Tax Increment Financing program with
respect to which the City entered a Memorandum of Understanding on
April 8, 1998" ; any and all remaining allegations in paragraph 23
of the complaint are denied.
24 . Denied.
25. Denied.
26. Denied.
COUNT TWO: DUE PROCESS
27 . Defendants incorporate by reference and here re-allege their
respective responses to paragraphs 1-26, supra .
28 . Denied.
29.
AFFIRMATIVE DEFENSES
Further answering the complaint, the defendants say as follows :
5
1 . The defendants say that the decisions complained of were made
lawfully, properly and wholly within the scope of their
administrative discretion.
2 . The defendants plead failure to exhaust administrative
remedies.
3. The defendants plead insufficiency of process.
4 . The defendants plead insufficiency of service of process.
5 . The defendants specifically deny the genuineness of any
purported signatures upon documents which the plaintiffs rely on
in this case.
6. The defendants plead laches .
7 . The defendants state that the present action against them is
time-barred by operation of the applicable statute ( s ) of
limitations.
8. The defendants plead lack of subject matter jurisdiction.
9. The defendants plead lack of personal jurisdiction.
10 . The defendants plead improper venue.
11 . The defendants say that the plaintiffs lack standing to bring
the present complaint and/or the various counts thereof, for the
reason - among others - that they do not qualify as "aggrieved
persons" under the applicable laws .
12 . The defendants plead unclean hands on the part of the
plaintiffs.
13. The defendants plead estoppel on the part of the plaintiffs.
6
14 . The defendants state that the plaintiffs have failed to
satisfy the procedural prerequisites to bringing this action.
15 . The defendants say that for all of the reasons aforementioned,
the complaint fails to state a claim upon which relief may be
granted.
WHEREFORE, the defendants demand the dismissal of the complaint,
with costs taxed to the plaintiffs .
THE CITY OF SALEM, et al,
By Their City Solicitor,
Wil Xam4undreaa Esq.
81 ashington Sheet
Suite 37
Salem, MA 01970
Tel : 978 . 741 . 3888
Certificate of Service
I, William J. Lundregan, hereby certify that on *10 oz./
1999 I mailed, postage pre-paid, a copy of the foregoing document
to: Morris M. Goldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under penalty of perjury.
WilliA J. Lundreganr Esq—
7
COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
ESSEX, ss . Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
VS.
WALTER B. POWERS, III, CHARLES
M. PULED, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
INTERROGATORIES PROPOUNDED BY DEFENDANT, CITY OF SALEM,
TO THE PLAINTIFF, DONALD J. MICHAUD, TRUSTEE
Pursuant to Mass. R. Civ. P. 33, the plaintiff, Donald J. Michaud,
Trustee, is hereby required to answer each and every one of the
following interrogatories within the time provided by said rule .
NOTE: Notwithstanding their use of "all," "any and all"
and/or other, all-inclusive designations, the following
interrogatories shall be deemed to exclude from their scope
materials privileged by the attorney-client privilege, the
attorney work-product privilege, and the privilege afforded to
materials compiled by or at the behest of Counsel in
anticipation of litigation.
1
1 . Please state your name, address, occupation, and business
address (es) .
2 . Please state the name, address, occupation, and business
address of each and every person consulted in order to obtain
information used in answering these interrogatories, excepting
herefrom only the defendant' s attorney.
3. Please state the name, address, occupation, and business
address of each and every person known to, or believed by, you to
have knowledge regarding the facts of this case, excepting
herefrom only your attorney.
4 . Please state the date on which you acquired the property at
222-224 Derby Street, Salem, Massachusetts.
5 . Please state how the property at 222-224 Derby Street, Salem,
Massachusetts was zoned (i . e. in what type of zoning district it
was located) on the date that you acquired it.
6 . Please state how the property at 223-231 Derby Street and 23
Congress Street Salem Massachusetts was zoned i . e. in what g ( at type
of zoning district it was located) on the date that you acquired
your property at 222-224 Derby Street, Salem, Massachusetts .
7 . Please describe how the property at 223-231 Derby Street and 23
Congress Street, Salem, Massachusetts appeared on the date that
you purchased acquired the property at at 222-224 Derby Street,
Salem, Massachusetts . Include in your answer hereto, but without
limitation, the location, size and complete descriptions of any
and all buildings that were upon the property, the uses to which
such buildings were put , the location, size and complete
descriptions of any and all driveways, parking lots and other
paved areas on the property, the uses to which such paved areas
were put, the location, size and complete description of any and
2
all greenery and/or other plantings upon the property.
8 . Please describe, in full and complete detail, what uses have
been made of the property at 223-231 Derby Street and 23 Congress
Street, Salem, Massachusetts, from the date that you acquired your
property at 222-224 Derby Street, Salem, Massachusetts, to date
hereof.
9 . Please describe, in full and complete detail, what uses have
been made of the property at 222-224 Derby Street, Salem,
Massachusetts, from the date that you acquired it to date hereof.
10 . If, from the date on which you acquired your property at 222-
224 Derby Street, Salem, Massachusetts, to date hereof, there have
been any changes in the zoning of your said property, please
describe any and all such changes in full and complete detail,
providing the date and the substance of each and every such
change.
11 . If, from the date on which you acquired your property at 222-
224 Derby Street, Salem, Massachusetts, to date hereof, there have
been any changes in the zoning of the property at 223-231 Derby
Street and 23 Congress Street, Salem, Massachusetts Please
describe any and all such changes in full and complete detail,
providing the date and the substance of each and every such
change.
12 . If you or your predecessors in title have ever sought a
variance or a special permit for your property at 222-224 Derby
Street, Salem, Massachusetts, then with respect to each and every
such instance, please provide the following information : the date
of the application, the nature of the variance or special permit
sought, the reason why you or they sought the variance or special
permit, whether or not the application was granted, and, if it was
3
granted, exactly what use (s) were made of the variance or permit .
13 . If, to your knowledge, from the date on which you acquired
your property at 222-224 Derby Street, Salem, Massachusetts, to
date hereof, the owners of the property at 223-231 Derby Street
and 23 Congress Street, Salem, Massachusetts ever sought a
variance or a special permit for that property, please provide the
following information: the date of the application, the nature of
the variance or special permit sought, the reason given for the
variance or special permit, whether or not the application was
granted, and, if it was granted, exactly what use (s) were made of
the variance or permit.
14 . If, from the date on which you acquired your property at 222-
224 Derby Street, Salem, Massachusetts, to date hereof, you have
ever made any improvements to the said property, please describe
any and all such improvements in full and complete detail.
15 . Please state : (a) the date and manner in which you acquired
the property at 222-224 Derby Street, Salem, Massachusetts, (b)
the price you paid to acquire the property, (c) the current
assessed value of that property, and (d) the current market value
of that property (to the best of your knowledge and belief) .
16 . What is the distance between the portion of your property at
222-224 Derby Street, Salem, Massachusetts, that is nearest to
portion of the property at 223-231 Derby Street and 23 Congress
Street, Salem, Massachusetts?
17 . Please state, in full and complete detail, all of the factual
reasons for your opposition to the July 29, 1999 decision of the
City of Salem Planning Board which granted a special permit to the
Pickering Wharf Realty Trust . Include in your answer hereto any
and all specific harms to yourself or your property at 222-224
4
Derby Street, Salem, Massachusetts, that you anticipate from the
issuance of the special permit; and with respect to each and every
such anticipated harm, please set forth the specific, factual
basis for your belief that such harm to yourself or your property
is likely to follow from the allowance of the special permit .
18 . If you intend to call any expert witnesses to testify to the
matters described and discussed in interrogatory no . 17 and your
answer thereto, then please identify by name, address and area of
expertise each and every such expert witness, and with respect to
each and every such expert witness, please provide the following
information : (a) the subject matter on which the expert is
expected to testify, (b) the substance of the facts and opinions
to which the expert is expected to testify, and (c) a summary of
the grounds for each opinion.
19 . If you intend to call any non-expert witnesses to testify to
the matters described and discussed in interrogatory no. 23 and
your answer thereto, then please identify by name, address,
occupation and business address, each and every such witness.
20 . Please identify, by name, address, occupation and business
address, each and every witness whom you intend to call to testify
at the trial of this matter.
THE CITY OF SALEM, et al,
By Their City Solicitor,
01
Wil am J. Lundre Esq. —
81 Washington S eet
Suite 37
Salem, MA 01970
Tel : 978 . 791 . 3888
5
Y` A
Certificate of Service
I, William J. Lundregan, hereby certify that on /
1999 I mailed, postage pre-paid, a copy of the foreg ing document
to: Morris M. Goldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under penalty of perjury.
m Lundr an, Esq.
G�
6
COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
ESSEX, ss . Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
VS .
WALTER B. POWERS, III, CHARLES
M. PULED, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY DEFENDANT,
CITY OF SALEM, TO THE PLAINTIFF, DONALD J. MICHAUD, TRUSTEE
Pursuant to Mass. R. Civ. P. 34, the plaintiff, Donald J. Michaud,
Trustee, is hereby required to produce copies of the documents
described hereinbelow at the offices of the defendant' s attorney
within the time provided by rule . NOTE : Notwithstanding their
use of "all," " any and all" and/or other, all-inclusive
designations, the following Interrogatories shall be deemed to
exclude from their scope materials privileged by the attorney-
client privilege, the attorney work-product privilege, and the
privilege afforded to materials compiled by or at the
behest of Counsel in anticipation of litigation.
1
Any and all acceptances, accounts, advertisements, agreements,
amendments, applications, approvals, balance sheets, blueprints,
books, brochures, building permits, canceled checks, chalks,
charts, circulars, citations, codicils, complaints, contracts,
correspondence, deeds, diagrams, drawings , flyers, graphics ,
income statements, invitations, invoices , leaflets, ledgers,
literature, memoranda , notes , orders , outlines , permits ,
petitions, photographs , plans, proposals, purchase orders,
recordings (audio and/or video) , records, repair orders, reports,
responses , solicitations, special permits, specifications,
statistical compilations, studies, submissions, variances, work
orders, and/or other documents or other tangible items, of any
kind and nature whatsoever, by whomever authored, for whatever
purpose (s) , to whomever addressed, and by whomever received,
excepting herefrom only matter privileged by the
aforementioned privileges, that are within the possession, custody
or control of the plaintiff, its agents, employees or servants, or
to which plaintiff has a right of access and may obtain by making
a reasonable effort, that allude to, attest to, describe,
document, illustrate, and/or otherwise evidence, in any manner
whatsoever, any or all of the following matters :
1 . The information or subject matter designated and described in
defendant' s interrogatory no. 2 and/or in the plaintiffs' answer
thereto.
2 . The information or subject matter designated and described in
defendant' s interrogatory no . 3 and/or in the plaintiffs' answer
thereto.
3 . The information or subject matter designated and described in
defendant' s interrogatory no. 4 and/or in the plaintiffs' answer
thereto.
2
4 . The information or subject matter designated and described in
defendant' s interrogatory no. 5 and/or in the plaintiffs' answer
thereto.
5 . The information or subject matter designated and described in
defendant' s interrogatory no . 6 and/or in the plaintiffs' answer
thereto.
6 . The information or subject matter designated and described in
defendant' s interrogatory no . 7 and/or in the plaintiffs' answer
thereto.
7 . The information or subject matter designated and described in
defendant' s interrogatory no. 8 and/or in the plaintiffs' answer
thereto.
B . The information or subject matter designated and described in
defendant' s interrogatory no. 9 and/or in the plaintiffs' answer
thereto.
9. The information or subject matter designated and described in
defendant' s interrogatory no. 10 and/or in the plaintiffs' answer
thereto.
10 . The information or subject matter designated and described in
defendant' s interrogatory no. 11 and/or in the plaintiffs' answer
thereto.
11 . The information or subject matter designated and described in
defendant' s interrogatory no. 12 and/or in the plaintiffs' answer
thereto.
12 . The information or subject matter designated and described in
defendant' s interrogatory no . 13 and/or in the plaintiffs' answer
thereto.
3
13 . The information or subject matter designated and described in
defendant' s interrogatory no. 14 and/or in the plaintiffs' answer
thereto.
14 . The information or subject matter designated and described in
defendant' s interrogatory no . 15 and/or in the plaintiffs' answer
thereto.
15 . The information or subject matter designated and described in
defendant' s interrogatory no. 16 and/or in the plaintiffs' answer
thereto.
16 . The information or subject matter designated and described in
defendant' s interrogatory no. 17 and/or in the plaintiffs' answer
thereto.
17 . The information or subject matter designated and described in
defendant' s interrogatory no. 18 and/or in the plaintiffs' answer
thereto.
18 . The information or subject matter designated and described in
defendant' s interrogatory no. 19 and/or in the plaintiffs' answer
thereto.
19 . The information or subject matter designated and described in
defendant's interrogatory no. 20 and/or in the plaintiffs' answer
thereto.
20 . To whatever extent not previously provided in response to any
of the foregoing document requests, or otherwise, the following
documents and things : any and all documents and things, of any
nature and description whatsoever, which the plaintiff intends to
offer into evidence at the trial of this matter. In the event that
the plaintiff does not have any of the foregoing documents or has
not been able to obtain them in a timely fashion, s/he shall state
4
in writing, under the penalties of perjury, the specific documents
which are not available, the reasons the documents are not
available , and what efforts have been made to obtain the
documents . As more information becomes available there is a
continuing duty to supplement .
THE CITY OF SALEM, et al,
By Their City Solicitor,
Wil am J. Lundre 6, Esq.
81 Washington Street
Suite 37
Salem, MA 01970
Tel : 978 . 741 . 3888
Certificate of Service
I, William J. Lundregan, hereby certify that on /
1999 I mailed, postage pre-paid, a copy of the foregoing document
to: Morris M. Goldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under penalty of perjury.
i
Wil '"am J. Lundreg Esq.
5
COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
ESSEX, ss . Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
VS.
WALTER B. POWERS, III, CHARLES
M. PULEO, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
INTERROGATORIES PROPOUNDED BY DEFENDANT, CITY OF SALEM
TO THE PLAINTIFF, DOROTHY L. HARRINGTON, TRUSTEE
Pursuant to Mass . R. Civ. P . 33, the plaintiff, Dorothy L.
Harrington, Trustee, is hereby required to answer each and every
one of the following interrogatories within the time provided by
said rule . NOTE: Notwithstanding their use of "all," "any
and all" and/or other, all-inclusive designations, the
following interrogatories shall be deemed to exclude from their
scope materials privileged by the attorney-client privilege, the
attorney work-product privilege, and the privilege afforded to
materials compiled by or at the behest of Counsel in
1
anticipation of litigation.
1 . Please state your name, address, occupation, and business
address (es) .
2 . Please state the name, address, occupation, and business
address of each and every person consulted in order to obtain
information used in answering these interrogatories, excepting
herefrom only the defendant' s attorney.
3. Please state the name, address, occupation, and business
address of each and every person known to, or believed by, you to
have knowledge regarding the facts of this case, excepting
herefrom only your attorney.
4 . Please state the date on which you acquired the property at 18
Washington Square West, Salem, Massachusetts, known as the
Hawthorne Hotel.
5 . Please state how the property at 18 Washington Square West,
Salem, Massachusetts was zoned (i . e . in what type of zoning
district it was located) on the date that you acquired it.
6 . Please state how the property at 223-231 Derby Street and 23
Congress Street, Salem, Massachusetts was zoned (i. e. in what type
of zoning district it was located) on the date that you acquired
your property at 18 Washington Square West, Salem, Massachusetts .
7 . Please describe how the property at 223-231 Derby Street and 23
Congress Street, Salem, Massachusetts appeared on the date that
you purchased acquired the property at at 18 Washington Square
West, Salem, Massachusetts . Include in your answer hereto, but
without limitation, the location, size and complete descriptions
of any and all buildings that were upon the property, the uses to
which such buildings were put, the location, size and complete
2
descriptions of any and all driveways, parking lots and other
paved areas on the property, the uses to which such paved areas
were put, the location, size and complete description of any and
all greenery and/or other plantings upon the property.
8 . Please describe, in full and complete detail, what uses have
r
been made of the property at 223-231 Derby Street and 23 Congress
Street, Salem, Massachusetts, from the date that you acquired your
property at 18 Washington Square West, Salem, Massachusetts, to
date hereof.
9 . Please describe, in full and complete detail, what uses have
been made of the property at 18 Washington Square West, Salem,
Massachusetts, from the date that you acquired it to date hereof.
10 . If, from the date on which you acquired your property at 18
Washington Square West, Salem, Massachusetts, to date hereof,
there have been any changes in the zoning of your said property,
please describe any and all such changes in full and complete
detail, providing the date and the substance of each and every
such change.
11 . If, from the date on which you acquired your property at 18
Washington Square West, Salem, Massachusetts, to date hereof,
there have been any changes in the zoning of the property at 223-
231 Derby Street and 23 Congress Street, Salem, Massachusetts,
please describe any and all such changes in full and complete
detail, providing the date and the substance of each and every
such change.
12 . If you or your predecessors in title have ever sought a
variance or a special permit for your property at 18 Washington
Square West, Salem, Massachusetts, then with respect to each and
every such instance, please provide the following information: the
3
date of the application, the nature of the variance or special
permit sought, the reason why you or they sought the variance or
special permit, whether or not the application was granted, and,
if it was granted, exactly what use (s) were made of the variance
or permit.
13 . If, to your knowledge, from the date on which you acquired
your property at 18 Washington Square West, Salem, Massachusetts,
to date hereof, the owners of the property at 223-231 Derby Street
and 23 Congress Street, Salem, Massachusetts ever sought a
variance or a special permit for that property, please provide the
following information: the date of the application, the nature of
the variance or special permit sought, the reason given for the
variance or special permit, whether or not the application was
granted, and, if it was granted, exactly what use (s) were made of
the variance or permit .
14 . If, from the date on which you acquired your property at 18
Washington Square West, Salem, Massachusetts, to date hereof, you
have ever made any improvements to the said property, please
describe any and all such improvements in full and complete
detail.
15 . Please state : (a) the date and manner in which you acquired
the property at 18 Washington Square West, Salem, Massachusetts,
(b) the price you paid to acquire the property, (c) the current
assessed value of that property, and (d) the current market value
of that property (to the best of your knowledge and belief) .
16 . What is the distance between the portion of your property at
18 Washington Square West, Salem, Massachusetts, that is nearest
to portion of the property at 223-231 Derby Street and 23 Congress
Street, Salem, Massachusetts?
4
17 . Please state, in full and complete detail, all of the factual
reasons for your opposition to the July 29, 1999 decision of the
City of Salem Planning Board which granted a special permit to the
Pickering Wharf Realty Trust . Include in your answer hereto any
and all specific harms to yourself or your property at 18
Washington Square West, Salem, Massachusetts, that you anticipate
t
from the issuance of the special permit; and with respect to each
and every such anticipated harm, please set forth the specific,
factual basis for your belief that such harm to yourself or your
property is likely to follow from the allowance of the special
permit.
18 . If you intend to call any expert witnesses to testify to the
matters described and discussed in interrogatory no. 17 and your
answer thereto, then please identify by name, address and area of
expertise each and every such expert witness, and with respect to
each and every such expert witness, please provide the following
information: (a) the subject matter on which the expert is
expected to testify, (b) the substance of the facts and opinions
to which the expert is expected to testify, and (c) a summary of
the grounds for each opinion.
19. If you intend to call any non-expert witnesses to testify to
the matters described and discussed in interrogatory no. 23 and
your answer thereto, then please identify by name, address,
occupation and business address, each and every such witness .
20 . Please identify, by name, address, occupation and business
address, each and every witness whom you intend to call to testify
at the trial of this matter.
5
THE CITY OF SALEM, et al,
By Their City Solicitor,
r \
W iam J. Lundr an, Esq.
81 Washington reet
Suite 37
Salem, MA 01970
Tel : 978 . 791 . 3888
Certificate of Service
I, William J. Lundregan, hereby certify that on / f
1999 I mailed, postage pre-paid, a copy of the foregoing document
to: Morris M. Goldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01995.
Signed under penalty of perjury.
illia J. undrega . Esq.
6
COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
ESSEX, ss . Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
VS .
WALTER B. POWERS, III, CHARLES
M. PULED, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY DEFENDANT,
CITY OF SALEM, TO THE PLAINTIFF, DOROTHY L. HARRINGTON, TRUSTEE
Pursuant to Mass . R. Civ. P . 34 , the plaintiff, Dorothy L.
Harrington, Trustee, is hereby required to produce copies of the
documents described hereinbelow at the offices of the defendant' s
attorney within the time provided by rule. NOTE: Notwithstanding
their use of " all," " any and all" and/or other, all-
inclusive designations, the following Interrogatories shall be
deemed to exclude from their scope materials privileged by the
attorney-client privilege, the attorney work-product privilege,
and the privilege afforded to materials compiled by or at
1
the behest of Counsel in anticipation of litigation.
Any and all acceptances, accounts, advertisements, agreements,
amendments, applications, approvals, balance sheets, blueprints,
books , brochures, building permits, canceled checks, chalks,
` charts, circulars, citations, codicils, complaints, contracts,
correspondence, deeds , diagrams , drawings, flyers, graphics,
income statements, invitations , invoices, leaflets, ledgers,
literature , memoranda , notes , orders , outlines , permits ,
petitions, photographs , plans , proposals , purchase orders ,
recordings (audio and/or video) , records, repair orders, reports,
responses , solicitations, special permits , specifications ,
statistical compilations, studies, submissions, variances, work
orders, and/or other documents or other tangible items, of any
kind and nature whatsoever, by whomever authored, for whatever
purpose (s ) , to whomever addressed, and by whomever received,
excepting herefrom only matter privileged by the
aforementioned privileges, that are within the possession, custody
or control of the plaintiff, its agents, employees or servants, or
to which plaintiff has a right of access and may obtain by making
a reasonable effort , that allude to, attest to, describe,
document, illustrate, and/or otherwise evidence, in any manner
whatsoever, any or all of the following matters :
1 . The information or subject matter designated and described in
defendant' s interrogatory no. 2 and/or in the plaintiffs' answer
thereto.
2 . The information or subject matter designated and described in
defendant' s interrogatory no. 3 and/or in the plaintiffs' answer
thereto.
3 . The information or subject matter designated and described in
defendant' s interrogatory no. 4 and/or in the plaintiffs' answer
2
thereto.
4 . The information or subject matter designated and described in
defendant' s interrogatory no. 5 and/or in the plaintiffs' answer
thereto.
5 . The information or subject matter designated and described in
defendant' s interrogatory no. 6 and/or in the plaintiffs' answer
thereto.
6. The information or subject matter designated and described in
defendant' s interrogatory no. 7 and/or in the plaintiffs' answer
thereto.
7 . The information or subject matter designated and described in
defendant' s interrogatory no. 8 and/or in the plaintiffs' answer
thereto.
i,
8 . The information or subject matter designated and described in
defendant' s interrogatory no. 9 and/or in the plaintiffs' answer
thereto.
9 . The information or subject matter designated and described in
defendant' s interrogatory no. 10 and/or in the plaintiffs' answer
thereto.
10 . The information or subject matter designated and described in
defendant' s interrogatory no . 11 and/or in the plaintiffs' answer
thereto.
11 . The information or subject matter designated and described in
defendant' s interrogatory no. 12 and/or in the plaintiffs' answer
thereto.
3
12 . The information or subject matter designated and described in
defendant' s interrogatory no . 13 and/or in the plaintiffs' answer
thereto.
13 . The information or subject matter designated and described in
defendant' s interrogatory no. 14 and/or in the plaintiffs' answer
thereto.
14 . The information or subject matter designated and described in
defendant' s interrogatory no. 15 and/or in the plaintiffs' answer
thereto.
15 . The information or subject matter designated and described in
defendant' s interrogatory no. 16 and/or in the plaintiffs' answer
thereto.
16 . The information or subject matter designated and described in
defendant' s interrogatory no. 17 and/or in the plaintiffs' answer
thereto.
17 . The information or subject matter designated and described in
defendant' s interrogatory no . 18 and/or in the plaintiffs' answer
thereto.
18 . The information or subject matter designated and described in
defendant' s interrogatory no. 19 and/or in the plaintiffs' answer
thereto.
19 . The information or subject matter designated and described in
defendant' s interrogatory no. 20 and/or in the plaintiffs' answer
thereto.
20 . To whatever extent not previously provided in response to any
of the foregoing document requests, or otherwise, the following
documents and things : any and all documents and things, of any
4
nature and description whatsoever, which the plaintiff intends to
offer into evidence at the trial of this matter. In the event that
the plaintiff does not have any of the foregoing documents or has
not been able to obtain them in a timely fashion, s/he shall state
in writing, under the penalties of perjury, the specific documents
which are not available, the reasons the documents are not
� . available, and what efforts have been made to obtain the
documents . As more information becomes available there is a
continuing duty to supplement .
THE CITY OF SALEM, et al,
By Their City So icitor,
`—
Wi iam J. Lundre n, Esq.
81 Washington eet
Suite 37
Salem, MA 01970
Tel : 978 . 741 . 3888
Certificate of Service
I, William J. Lundregan, hereby certify that on /
1999 I mailed, postage pre-paid, a copy of the foregoing document
to: Morris M. Goldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under penalty of perjury.
Willi J. Lundregan, q-
5
CITY OF SALEM - MASSACHUSETTS
WILLIAM J.LUNDFREGAN Legal Department JOHN D.KEENAN
City Solicitor 93 Washington Street Assistant City Solicitor
81 Washington Street SalemMassachusetts 01970 so Washington Street
,
Tel:978-741-3888 Tel:978-741-4453
Fax:978-741-8110 Fax:978-740-0072
September 1 , 1999
Charles W. Trombly, Jr. , Recorder
Land Court Department
20-24 New Chardon Street
Boston, MA 02114-4703
RE : Dorothy L. Harrington, Trustee of the
Three Corners Realty Trust, et als
VS .
Walter B. Powers, III , et als
Docket No. : 99-258338
Dear Sir:
Please find enclosed for filing and docketing in the above
matter the following documents :
1 . Answer of defendants, City of Salem and City of
Salem Planning Board;
2 . Interrogatories Propounded by Defendant,
City of Salem to the Plaintiff, Dorothy L.
Harrington, Trustee;
3 . Request for Production of Documents Propounded
by Defendant, City of Salem, to the Plaintiff,
Dorothy L. Harrington, Trustee;
4 . Interrogatories Propounded By Defendant ,
City of Salem, to the Plaintiff, Donald J.
Michaud, Trustee;
S . Request for Production of Documents Propounded
City of Salem to the Plaintiff, Donald J. Michaud,
Trustee;
6 . Certificate of Service .
If you have any questions with reference to this matter, please
do not hesitate to call me.
Very truly yours,
WILLIAM J. LUNDREGAN
CITY SOLICITOR
WJL/amc
CC : Morris M. Goldings, Esq.
Mayor Stanley J. Usovicz, Jr.
Walter B. Power III , Chairman, Planning Board
Patrick Reffett, City Planner
COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
ESSEX, ss . Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
VS. ANSWER OF DEFENDANTS,
CITY OF SALEM AND CITY
WALTER B. POWERS, III, CHARLES OF SALEM PLANNING BOARD
M. PULED, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
COUNT I: JUDICIAL REVIEW UNDER G.L. CH. 40A, SEC. 17
1. The first sentence in paragraph 1 of the complaint is admitted;
the second sentence is denied.
2 . The allegations in paragraph 2 of the complaint are admitted,
except for so much thereof as alleges that " (a) copy of the
Decision is attached hereto and marked `A,"' which is denied.
3 . The allegations in paragraph 3 of the complaint that state,
" (t) he complaint also seeks a declaration of rights under G.L. c.
231A with respect to the actions of the Planning Board and the
City of Salem" are admitted; any and all remaining allegations in
1
paragraph 3 are denied.
4 . The defendants are without sufficient knowledge to admit or
deny the allegations in paragraph 9 of the complaint and call upon
the plaintiffs to prove the same.
5 . The defendants are without sufficient knowledge to admit or
deny the allegations in paragraph 5 of the complaint and call upon
the plaintiffs to prove the same.
6. Admitted.
7 . Admitted.
8. Admitted.
9 . The defendants neither admit, nor deny, the allegations in
paragraph 9 of the complaint, but state that the statute
referenced therein speaks for itself; moreover, the defendants say
that the excerpted portions of the statute may not properly be
read and interpreted in isolation from other, pertinent portions
of the statute and/or from the provisions of other relevant
statutes and laws.
10 . The defendants neither admit, nor deny, the allegations in
paragraph 10 of the complaint, but state that the ordinance
referenced therein speaks for itself; moreover, the defendants say
that the excerpted portions .of the ordinance may not properly be
read and interpreted in isolation from other, pertinent portions
of the ordinance and/or from the provisions of other relevant
ordinances, statutes and laws .
11 . Admitted, that, " (o) n September 9 , 1997 , the Planning Board
adopted a "Master Plan Update . . ." ; as for the remaining
allegations in paragraph 11 of the complaint, the defendants
neither admit, nor deny, the same, but instead say that that the
2
excerpted portion of the Master Plan Update may not properly be
read and interpreted in isolation from other, pertinent portions
of the Plan and/or from the provisions of other relevant
ordinances, statutes and laws.
12 . Admitted; that, " (o) n August 14 , 1997, the City of Salem
issued a request for a proposal for a consultant to prepare a
hotel feasibility study," and that the passage therefrom quoted in
paragraph 12 of the complaint does appear in the request for
feasibility study; any and all remaining allegations in paragraph
are denied; and further answering, the defendants say that that
the quoted excerpt from the request may not properly be read and
interpreted in isolation from other, pertinent portions of the
request and/or from the provisions of other relevant ordinances,
statutes and laws.
13 . The first sentence in paragraph 13 of the complaint is
admitted; the balance of that paragraph is denied.
14 . The first sentence in paragraph 14 of the complaint is
admitted; the balance of that paragraph is denied.
15 . The first sentence in paragraph 15 of the complaint is
admitted; the balance of that paragraph is denied.
16. Admitted, that the passages quoted from the Landauer Report in
paragraph 16 of the complaint do appear in that report; however,
the defendants say that that the quoted excerpts from the Report
may not properly be read and interpreted in isolation from other,
pertinent portions of the Report and/or from the provisions of
other relevant ordinances, statutes and laws .
17 . Admitted, that, " (o) n May 27, 1999, the Defendant Pickering
Wharf filed a letter purporting to be an application with the
Defendant Planning Board for a `Site Plan Review and Wetlands and
3
f
Flood Hazard District Special Permit,"' and that the excerpt
therefrom quoted in paragraph 17 of the complaint does appear in
the application; the balance of paragraph 17 is denied; and
further answering, the defendants say that the quoted excerpts
from the application may not properly be read and interpreted in
isolation from other, pertinent portions of the application and/or
from the provisions of other relevant documents, ordinances,
statutes and laws.
18. Admitted.
19. The first sentence in paragraph 19 of the complaint is
admitted; the balance of paragraph 19 is denied; and any express
or implied allegation that the "objections" contained in the
referenced letter were valid is also denied.
20 . Admitted, that, " (o) n July 28 , 1999, the Trust appeared
through counsel before the Planning Board at its hearing and
presented documents, testimony and argument in opposition to the
application," and that counsel for the Trust made the arguments
set out in the balance of paragraph 20 of the complaint; any
express or implied allegation that counsel' s arguments were valid
and supported by the evidence before the Board is denied.
21. Admitted, that, " (o) n July 28, 1999, the Trust presented to
the Planning Board a copy of a report dated January 14, 1997 ,
previously furnished to the Board, from Pinnacle Advisory Group
. . . entitled: `Market Demand Study for a Proposed Hotel to be
Located in Salem, Massachusetts,"' and that the language quoted
from the report in paragraph 21 of the complaint does appear in
the report; any and all remaining allegations in paragraph 21 are
denied; and further answering, the defendants say that the quoted
excerpts from the report may not properly be read and interpreted
in isolation from other, pertinent portions of the report and/or
4
from the provisions of other relevant documents, ordinances,
statutes and laws.
22 . Admitted, that, " (o) n July 28, 1999, a principal of Pinnacle
Advisory Group presented testimony to the Board" ; the balance of
the allegations in paragraph 22 of the complaint are conclusory,
seek to characterize the testimony, and are denied; and any
express or implied allegation that the testimony was valid and
supported by the evidence before the Board is also denied.
23 . Admitted, that, "the City has required the Pickering Wharf
Trust to develop a hotel of `not less than 70 and not more than
140 rooms' as part of a Tax Increment Financing program with
respect to which the City entered a Memorandum of Understanding on
April 8, 1998" ; any and all remaining allegations in paragraph 23
of the complaint are denied.
24. Denied.
25. Denied.
26. Denied.
COUNT TWO: DUE PROCESS
27 . Defendants incorporate by reference and here re-allege their
respective responses to paragraphs 1-26, supra.
28 . Denied.
29.
AFFIRMATIVE DEFENSES
Further answering the complaint, the defendants say as follows:
5
1 . The defendants say that the decisions complained of were made
lawfully, properly and wholly within the scope of their
administrative discretion.
2 . The defendants plead failure to exhaust administrative
remedies.
3 . The defendants plead insufficiency of process.
4. The defendants plead insufficiency of service of process.
5 . The defendants specifically deny the genuineness of any
purported signatures upon documents which the plaintiffs rely on
in this case.
6. The defendants plead laches.
7 . The defendants state that the present action against them is
time-barred by operation of the applicable statute ( s ) of
limitations .
8 . The defendants plead lack of subject matter jurisdiction.
9. The defendants plead lack of personal jurisdiction.
10. The defendants plead improper venue.
11 . The defendants say that the plaintiffs lack standing to bring
the present complaint and/or the various counts thereof, for the
reason - among others - that they do not qualify as "aggrieved
persons" under the applicable laws.
12 . The defendants plead unclean hands on the part of the
plaintiffs.
13 . The defendants plead estoppel on the part of the plaintiffs.
6
r
e.
14 . The defendants state that the plaintiffs have failed to
satisfy the procedural prerequisites to bringing this action.
15. The defendants say that for all of the reasons aforementioned,
the complaint fails to state a claim upon which relief may be
granted.
WHEREFORE, the defendants demand the dismissal of the complaint,
with costs taxed to the plaintiffs .
THE CITY OF SALEM, et al,
By Their City Solicitor,
Wil am Lundre Esq.
81 am
S eet
Suite 37
Salem, MA 01970
Tel: 978 . 741 . 3888
Certificate of Service
I, William J. Lundregan, hereby certify that on 44/0
1999 I mailed, postage pre-paid, a copy of the foregoing document
to: Morris M. Goldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under penalty of perjury.
WilliA J. LundregaEsq-
7
COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
Docket No. 99-258338
ESSEX, ss.
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALDJ. HofDtheand
MSke
MICHAUD, Trustees
Realty and Investmentrust
Plaintiffs
,
vs .
WALTER B. POWERS, III, CHARLES
M. PULEO, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
BY DEFENDANT, CITY OF SALE
INTERROGATORIES PROPOUNDED M,
TO THE PLAINTIFF, DONALD J. MICHAUD, TRUSTEE
33, the plaintiff, Donald J. Michaud,
Pursuant to Mass . R. Civ. P• eveone of the
is hereby required to answer each and every said rule.
Trustee,
following interrogatories within the time provided by
use of ��all,,, "any and all„
NOTE: Notwithstanding their the following
and/or other, all-inclusive designations ,
shall be deemed to exclude from their
interrogatories -client pscope
the attorneyrivilege , the
materials privileged by afforded to
work-product privilege, and the privilege
attorney
at the behest of Counsel in
materials compiled by or
anticipation of litigation.
1
� ^
e state Your name address, occupation, and business
1 , pleasbusiness
esl • occupation, and
address ( to obtain
the name , addresconsulted in order
Pleas state on excepting
e every Pers atonies,
2 •
address of each and answering these interrO
information used in
the defendant' s attorney
and business
heYefrom only occupation, You to
the name, address, or believed by, Y
3. plea se state every Person known to, this case excepting
of each and the facts of
address regarding
have knowledge at
attorney* d the Property
herefrom only Your acquire
the date on which you
to Massachusetts
9 please state Salem, Salem,
229 Derby Street, 224 Derby Street,
222- to how the Pr Op what2tYPe of zoning district it
erty at
5 .
14 Please tts was zoned li.e• in acquired it-
located)
that You Street 23
was ted( on the date 22 Denby and
lova pro at 3-231 i.e. in what type
how the p was zoned acquired
please state husetts that you
6 . Salem, Massae on the date
s Street, located) setts•
Congres it was Salem, Massachu
of zoning district Street,
224 Derby 23
at 222- b Street and
Property at 223-231 Derby that
your P Property on the date
how the P appeared Please describe chusetts Derby Street,
� . Salem, Massa at 222-229
Congress Street, d the property at wen hereto, but without
acquire Include i Your ars of any
you purchased n descriPtyOns
ts • and complete to which
Salem, Massachusetts ' size the uses
the location, the PrOParty, comPlete
limitation, s that were upon . size and
and all building the location, and other
Put ' parking lots
buildings were P driveways, P paved areas
such tions of any and all the uses to which such P of any and
descrrtyr
pavediareashenlocatponpesize and2comPlete description
were Put, t
ertY •
s up°n the prop
enerY other Planting what uses have
and/°r fete detaeet and 23 Congress
all 9re full and comp
S . Ple as des roperty at 223-23theedate that You acquired
You
e °ribs, date
of the p from Massachusetts,
been rade tts, Salem,
Salem, Massachune Street,
Str
proer'ty at 222-224 Derby uses have
at
hereof - complete detail, Street, Salem,
1 and acq t of
describe, in full at 222-229 Derby to date here
be,
9 . Please e property aired
made of th date t You at 222-
that hereof -
been from the
achusetts, acquired Your property have
Mass on which Y°u to hereof, there
e to da d P er please
SO • If' from the dSalem, Massachusetts, our aid rop tt r detail,
Street, of Y d complete
229 Derby the zoning full an such
in in andevery
any changes changes of each
been all such
and the substance
describe any date and _
providing the at 222
-
red
change. You acquired Yeur property
there have
th to on which You ac , to pate hereof,
223-231 Derby
e da
11. If , from em, Massach ertY ch please
Street Sal of the p usetts ,
224 Derby Str in the zoning Massa detail,
been any changes Congress Street, Salem, ll and complete
such
Street and among such changes in e °f each an every
23 changes d
d all tanc
describe any date and the
the sought a
providing title have ever 9
at 22-22 Derby
change sons in 2
es every
12 . If you or Y°ura p Pe mit for your hprospect to each and e date
then with
it resp information
or a it
special
following
variance or special per
e
Street , Salem, please Provide e of the 7arlanc variance or special
he
f h istance
a pl eoation, whYeY°ut°r they sought tgranted, and,
if it was
the P
sought , the reason not the application
permit, whether or 3
own
-►.. - per
made of the variance or P
granted, exactly what usels) Weremade
the dateon which You
acquired
o
etts ,
to your knowledge, by Street Salem, M23sachu
Street
13 • roper Y at 222-224o Derby
Property at tet eve, sought If , a
your P
t
date hereof , the oStreet ,ners Masroperty, Please Pro
the
Salem, leas P
it for that P the nature
d 23 Congresslication, the
an e or a special P the date of the aPP reason given for
var
following . .formation'speciPermit sought, tOr not the application was
the varia ce Or al Permit, Whether at
what use (s) were made f
variance and,
if it was gra
granted, permit. property at 222-
the variance or P ou acquired Y°ur Prop you
have
e on which Y hereof, Y
14 . If, from the
d Salem, Massachusestats, to
Y, please describe
t to the id P detail-
ever
Derby St complete
eVer made any imPro Movements in full and you
acquired
any and all such imp and manner in which c usetts, (b)
state: (a) the date rbyStreet, Salem, Mas c) the
current
please De
the Property at 222-2to acquire the Property, rrent market value
You
Paid and (d) belief) •
t d
Pr' Y ro er Y d e an
the Psed value 0f (t at Pr
t of Your knowle 9
asse the of Your Property at
of that Property between the portion is nearest to
distance betty assachusetts , that d 23 Congress
16 What is the M
Street,
Salem, 231 Derby Street an
222-224 Derby e Property at 223-
portion Salem, Massachusetts? of the factual
Street, all the
and complete detail,
decision of
in full July 29, t to the
state, the special Permit 17 . please our opposition to ranted a sp answer hereto any
or Y which 9 a er
reasons f planning $Oard Include inoup erty at 222-224
nni
City °f SalemWharf Realty Trust • elf or your rop
pic
kering harms to yours
and all specific 4
m tY e
0
ate
fzd evezY
nt an 1
that You ct tO eachc, facto e-LtY
sachusettsd Wyth zesP re speci YQuz pzoP)
Salem,
,has zmit an fpzth set 0\� self oz ezmit
.eet, e sPe°ial P Please hazm to Y the special P fY to they
e h f ti ou
f tY, hazm, suc ce ° tes d y
ateb elief thathe all°Wan itnesses to no . 1� dnazea o£o
ioz Y°u foil°W fzom any expeztintezzogatOaddzess \?nzespect ln9
to
eto call ueac
j&
in by name, a d Wit e olloW
lY �,11tend disc d ntifY mess, de th f ezt is
Sf Y°u s�ibed ae d lease caeexPezt please P h1 the and 0Pini°no f
e
ters . eto and eve"v ez Witne mattez o f the factal a su asY
-yez each h exP ect st nce ° and
�peztise eve-0 s.) the sub3 e 5\b to testzfY iVj to
l th testi
t
and ion' la1fY bl xpe,ted t° ses t° e23 and _
infozma d to testezt is e ion. t Witnes atozY 'Do
addzess
expecte h the exP each opin non,expez intezz°g naR`ei ess -
Whic fpz ll aM ed in fY by Witn
the 9r°unds tend t° caand dis°cease identevezY such d pusiz�e s s
Sf You indesczibed then Pl each and ata. an to test if
lg . matters thezeto , 8 addzess, ss, o°°uPd to call Y
the sWez iYjes addze inters
Youz an on and Vasname, Whom Yoh
pGcupati e identlf v'ezY Witness
leas and e ttez .
20 ' ess of this ma
add tz1a1 al,
e
t
at th F sAS,EM,icitoz
GSTY �itY Sol
T yS T,°eiz
,
Lundze eet
Wi a rl 9 �n S
1 t
01 Was 31 0 1910
ite g8
SSalem9 8 '141,38 5
Tel '
i
s
I
Certificate of Service
I, William J. Lundregan, hereby certify that on
1999 I mailed, postage pre-paid, a copy of the foreg ing document
to: Morris M. Goldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01995.
Signed under penalty of perjury.
I
I
Wi'il • mLundr an, Esq.
i
6
COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
ESSEX, ss . Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
VS.
WALTER B. POWERS, III, CHARLES
M. PULED, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY DEFENDANT,
CITY OF SALEM, TO THE PLAINTIFF, DONALD J. MICHAUD, TRUSTEE
Pursuant to Mass. R. Civ. P. 34, the plaintiff, Donald J. Michaud,
Trustee, is hereby required to produce copies of the documents
described hereinbelow at the offices of the defendant' s attorney
within the time provided by rule. NOTE: Notwithstanding their
use of " all," " any and all" and/or other, all-inclusive
designations, the following Interrogatories shall be deemed to
exclude from their scope materials privileged by the attorney-
client privilege, the attorney work-product privilege, and the
privilege afforded to materials compiled by or at the
behest of Counsel in anticipation of litigation.
1
Any and all acceptances, accounts, advertisements, agreements,
amendments, applications, approvals, balance sheets, blueprints,
books, brochures, building permits, canceled checks, chalks,
charts, circulars, citations, codicils, complaints, contracts,
correspondence, deeds, diagrams, drawings, flyers, graphics,
income statements, invitations, invoices, leaflets, ledgers,
literature, memoranda , notes , orders , outlines , permits,
petitions, photographs, plans, proposals, purchase orders,
recordings (audio and/or video) , records, repair orders, reports,
responses, solicitations, special permits, specifications,
statistical compilations, studies, submissions, variances, work
orders, and/or other documents or other tangible items, of any
kind and nature whatsoever, by whomever authored, for whatever
purpose ( s) , to whomever addressed, and by whomever received,
excepting herefrom . only matter privileged by the
aforementioned privileges, that are within the possession, custody
or control of the plaintiff, its agents, employees or servants, or
to which plaintiff has a right of access and may obtain by making
a reasonable effort, that allude to, attest to, describe,
document, illustrate, and/or otherwise evidence, in any manner
whatsoever, any or all of the following matters:
1. The information or subject matter designated and described in
defendant' s interrogatory no. 2 and/or in the plaintiffs' answer
thereto.
2 . The information or subject matter designated and described in
defendant' s interrogatory no. 3 and/or in the plaintiffs' answer
thereto.
3 . The information or subject matter designated and described in
defendant' s interrogatory no. 4 and/or in the plaintiffs' answer
thereto.
2
4 . The information or subject matter designated and described in
defendant' s interrogatory no . 5 and/or in the plaintiffs' answer
thereto.
S . The information or subject matter designated and described in
defendant' s interrogatory no. 6 and/or in the plaintiffs' answer
thereto.
6 . The information or subject matter designated and described in
defendant' s interrogatory no. 7 and/or in the plaintiffs' answer
thereto.
7 . The information or subject matter designated and described in
defendant' s interrogatory no. 8 and/or in the plaintiffs' answer
thereto.
8 . The information or subject matter designated and described in
defendant' s interrogatory no. 9 and/or in the plaintiffs' answer
thereto.
9. The information or subject matter designated and described in
defendant' s interrogatory no. 10 and/or in the plaintiffs' answer
thereto.
10 . The information or subject matter designated and described in
defendant' s interrogatory no. 11 and/or in the plaintiffs' answer
thereto.
11 . The information or subject matter designated and described in
defendant' s interrogatory no. 12 and/or in the plaintiffs' answer
thereto.
12 . The information or subject matter designated and described in
defendant' s interrogatory no. 13 and/or in the plaintiffs' answer
thereto.
3
13 . The information or subject matter designated and described in
defendant' s interrogatory no. 14 and/or in the plaintiffs' answer
thereto.
14 . The information or subject matter designated and described in
defendant' s interrogatory no. 15 and/or in the plaintiffs' answer
thereto.
15 . The information or subject matter designated and described in
defendant' s interrogatory no. 16 and/or in the plaintiffs' answer
thereto.
16. The information or subject matter designated and described in
defendant' s interrogatory no. 17 and/or in the plaintiffs' answer
thereto.
17 . The information or subject matter designated and described in
defendant' s interrogatory no. 18 and/or in the plaintiffs' answer
thereto.
18 . The information or subject matter designated and described in
defendant' s interrogatory no. 19 and/or in the plaintiffs' answer
thereto.
19 . The information or subject matter designated and described in
defendant' s interrogatory no. 20 and/or in the plaintiffs' answer
thereto.
20. To whatever extent not previously provided in response to any
of the foregoing document requests, or otherwise, the following
documents and things : any and all documents and things, of any
nature and description whatsoever, which the plaintiff intends to
offer into evidence at the trial of this matter. In the event that
the plaintiff does not have any of the foregoing documents or has
not been able to obtain them in a timely fashion, s/he shall state
4
in writing, under the penalties of perjury, the specific documents
which are not available, the reasons the documents are not
available, and what efforts have been made to obtain the
documents . As more information becomes available there is a
continuing duty to supplement .
THE CITY OF SALEM, et al,
By Their City Solicitor,
Wil am J. Lund re Esq.
81 Washington St eet
Suite 37
Salem, MA 01970
Tel: 978 . 741 . 3888
Certificate of Service
I, William J. Lundregan, hereby certify that on
1999 I mailed, postage pre-paid, a copy of the foregoing document
to: Morris M. Goldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under penalty of perjury.
IJ -�
Wil ' am J. Lundre , Esq.
5
COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
ESSEX, ss . Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
VS.
WALTER B. POWERS, III, CHARLES
M. PULEO, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
INTERROGATORIES PROPOUNDED BY DEFENDANT, CITY OF SALEM,
TO THE PLAINTIFF, DOROTHY L. HARRINGTON, TRUSTEE
Pursuant to Mass . R. Civ. P . 33, the plaintiff, Dorothy L.
Harrington, Trustee, is hereby required to answer each and every
one of the following interrogatories within the time provided by
said rule. NOTE: Notwithstanding their use of "all," "any
and all" and/or other, all-inclusive designations, the
following interrogatories shall be deemed to exclude from their
scope materials privileged by the attorney-client privilege, the
attorney work-product privilege, and the privilege afforded to
materials compiled by or at the behest of Counsel in
1
anticipation of litigation.
1 . Please state your name, address, occupation, and business
address (es) .
2 . Please state the name, address, occupation, and business
address of each and every person consulted in order to obtain
information used in answering these interrogatories, excepting
herefrom only the defendant' s attorney.
3. Please state the name, address, occupation, and business
address of each and every person known to, or believed by, you to
have knowledge regarding the facts of this case, excepting
herefrom only your attorney. 1
4 . Please state the date on which you acquired the property at 18
Washington Square West, Salem, Massachusetts, known as the
Hawthorne Hotel.
5. Please state how the property at 18 Washington Square West,
Salem, Massachusetts was zoned (i . e. in what type of zoning
district it was located) on the date that you acquired it.
6 . Please state how the property at 223-231 Derby Street and 23
Congress Street, Salem, Massachusetts was zoned (i .e. in what type
of zoning district it was located) on the date that you acquired
your property at 18 Washington Square West, Salem, Massachusetts.
7 . Please describe how the property at 223-231 Derby Street and 23
Congress Street, Salem, Massachusetts appeared on the date that
you purchased acquired the property at at 18 Washington Square
West, Salem, Massachusetts . Include in your answer hereto, but
without limitation, the location, size and complete descriptions
of any and all buildings that were upon the property, the uses to
which such buildings were put, the location, size and complete
2
descriptions of any and all driveways, parking lots and other
paved areas on the property, the uses to which such paved areas
were put, the location, size and complete description of any and
all greenery and/or other plantings upon the property.
8 . Please describe, in full and complete detail, what uses have
been made of the property at 223-231 Derby Street and 23 Congress
Street, Salem, Massachusetts, from the date that you acquired your
property at 18 Washington Square West, Salem, Massachusetts, to
date hereof.
9 . Please describe, in full and complete detail, what uses have
been made of the property at 18 Washington Square West, Salem,
Massachusetts, from the date that you acquired it to date hereof.
10 . If, from the date on which you acquired your property at 18
Washington Square West, Salem, Massachusetts, to date hereof,
there have been any changes in the zoning of your said property,
please describe any and all such changes in full and complete
detail, providing the date and the substance of each and every
such change.
11 . If, from the date on which you acquired your property at 18
Washington Square West, Salem, Massachusetts, to date hereof,
there have been any changes in the zoning of the property at 223-
231 Derby Street and 23 Congress Street, Salem, Massachusetts,
please describe any and all such changes in full and complete
detail, providing the date and the substance of each and every
such change.
12 . If you or your predecessors in title have ever sought a
variance or a special permit for your property at 18 Washington
Square West, Salem, Massachusetts, then with respect to each and
every such instance, please provide the following information: the
3
date of the application, the nature of the variance or special
permit sought, the reason why you or they sought the variance or
special permit, whether or not the application was granted, and,
if it was granted, exactly what use (s) were made of the variance
or permit .
13 . If, to your knowledge, from the date on which you acquired
your property at 18 Washington Square West, Salem, Massachusetts,
to date hereof, the owners of the property at 223-231 Derby Street
and 23 Congress Street, Salem, Massachusetts ever sought a
variance or a special permit for that property, please provide the
following information: the date of the application, the nature of
the variance or special permit sought, the reason given for the
variance or special permit, whether or not the application was
granted, and, if it was granted, exactly what use (s) were made of
the variance or permit .
14 . If, from the date on which you acquired your property at 18
Washington Square West, Salem, Massachusetts, to date hereof, you
have ever made any improvements to the said property, please
describe any and all such improvements in full and complete
detail.
15 . Please state: (a) the date and manner in which you acquired
the property at 18 Washington Square West, Salem, Massachusetts,
(b) the price you paid to acquire the property, (c) the current
assessed value of that property, and (d) the current market value
of that property (to the best of your knowledge and belief) .
16 . What is the distance between the portion of your property at
18 Washington Square West, Salem, Massachusetts, that is nearest
to portion of the property at 223-231 Derby Street and 23 Congress
Street, Salem, Massachusetts?
4
17 . Please state, in full and complete detail, all of the factual
reasons for your opposition to the July 29, 1999 decision of the
City of Salem Planning Board which granted a special permit to the
Pickering Wharf Realty Trust . Include in your answer hereto any
and all specific harms to yourself or your property at 18
Washington Square West, Salem, Massachusetts, that you anticipate
from the issuance of the special permit; and with respect to each
and every such anticipated harm, please set forth the specific,
factual basis for your belief that such harm to yourself or your
property is likely to follow from the allowance of the special
permit.
18 . If you intend to call any expert witnesses to testify to the
matters described and discussed in interrogatory no. 17 and your
answer thereto, then please identify by name, address and area of
expertise each and every such expert witness, and with respect to
each and every such expert witness, please provide the following
information: (a) the subject matter on which the expert is
expected to testify, (b) the substance of the facts and opinions
to which the expert is expected to testify, and (c) a summary of
the grounds for each opinion.
19. If you intend to call any non-expert witnesses to testify to
the matters described and discussed in interrogatory no. 23 and
your answer thereto, then please identify by name, address,
occupation and business address, each and every such witness.
20 . Please identify, by name, address, occupation and business
address, each and every witness whom you intend to call to testify
at the trial of this matter.
5
THE CITY OF SALEM, et al,
By Their City Solicitor,
Wi iam J. Lundr an, Esq.
81 Washington eet
Suite 37
Salem, MA 01970
Tel : 978 . 741 . 3888
Certificate of Service
I, William J. Lundregan, hereby certify that on
1999 I mailed, postage pre-paid, a copy of the foregoing document
to: Morris M. Goldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under penalty of perjury.
illiaJ. undrega . Esq.
6
COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
ESSEX, ss. Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
VS.
WALTER B. POWERS, III, CHARLES
M. PULED, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY DEFENDANT,
CITY OF SALEM, TO THE PLAINTIFF, DOROTHY L. HARRINGTON, TRUSTEE
Pursuant to Mass . R. Civ. P . 34 , the plaintiff, Dorothy L.
Harrington, Trustee, is hereby required to produce copies of the
documents described hereinbelow at the offices of the defendant' s
attorney within the time provided by rule. NOTE: Notwithstanding
their use of " all," " any and all" and/or other, all-
inclusive designations, the following Interrogatories shall be
deemed to exclude from their scope materials privileged by the
attorney-client privilege, the attorney work-product privilege,
and the privilege afforded to materials compiled by or at
1
the behest of Counsel in anticipation of litigation.
Any and all acceptances, accounts, advertisements, agreements,
amendments, applications, approvals, balance sheets, blueprints,
books, brochures, building permits, canceled checks, chalks,
charts, circulars, citations, codicils, complaints, contracts,
correspondence, deeds, diagrams , drawings, flyers, graphics,
income statements, invitations, invoices, leaflets, ledgers,
literature, memoranda, notes, orders, outlines, permits,
petitions, photographs , plans , proposals, purchase orders,
recordings (audio and/or video) , records, repair orders, reports,
responses, solicitations , special permits , specifications,
statistical compilations, studies, submissions, variances, work
orders, and/or other documents or other tangible items, of any
kind and nature whatsoever, by whomever authored, for whatever
purpose (s) , to whomever addressed, and by whomever received,
excepting herefrom only matter privileged by the
aforementioned privileges, that are within the possession, custody
or control of the plaintiff, its agents, employees or servants, or
to which plaintiff has a right of access and may obtain by making
a reasonable effort, that allude to, attest to, describe,
document, illustrate, and/or otherwise evidence, in any manner
whatsoever, any or all of the following matters:
1 . The information or subject matter designated and described in
defendant' s interrogatory no. 2 and/or in the plaintiffs' answer
thereto.
2 . The information or subject matter designated and described in
defendant' s interrogatory no. 3 and/or in the plaintiffs' answer
thereto.
3 . The information or subject matter designated and described in
defendant' s interrogatory no. 4 and/or in the plaintiffs' answer
2
I
thereto.
4 . The information or subject matter designated and described in
defendant' s interrogatory no. 5 and/or in the plaintiffs' answer
thereto.
5 . The information or subject matter designated and described in
defendant' s interrogatory no. 6 and/or in the plaintiffs' answer
thereto.
6. The information or subject matter designated and described in
defendant' s interrogatory no. 7 and/or in the plaintiffs' answer
thereto.
7 . The information or subject matter designated and described in
9
defendant' s interrogatory no. 8 and/or in the plaintiffs' answer
thereto.
8 . The information or subject matter designated and described in
defendant' s interrogatory no. 9 and/or in the plaintiffs' answer
thereto.
9. The information or subject matter designated and described in
defendant' s interrogatory no. 10 and/or in the plaintiffs' answer
thereto.
10 . The information or subject matter designated and described in
defendant' s interrogatory no. 11 and/or in the plaintiffs' answer
thereto.
11 . The information or subject matter designated and described in
defendant' s interrogatory no . 12 and/or in the plaintiffs' answer
thereto.
3
12 . The information or subject matter designated and described in
defendant' s interrogatory no . 13 and/or in the plaintiffs' answer
thereto.
13 . The information or subject matter designated and described in
defendant' s interrogatory no. 14 and/or in the plaintiffs' answer
thereto.
14 . The information or subject matter designated and described in
defendant' s interrogatory no. 15 and/or in the plaintiffs' answer
thereto.
15. The information or subject matter designated and described in
defendant' s interrogatory no. 16 and/or in the plaintiffs' answer
thereto.
16. The information or subject matter designated and described in
defendant' s interrogatory no. 17 and/or in the plaintiffs' answer
thereto.
17 . The information or subject matter designated and described in
defendant' s interrogatory no. 18 and/or in the plaintiffs' answer
thereto.
18 . The information or subject matter designated and described in
defendant' s interrogatory no. 19 and/or in the plaintiffs' answer
thereto.
19. The information or subject matter designated and described in
defendant' s interrogatory no. 20 and/or in the plaintiffs' answer
thereto.
20 . To whatever extent not previously provided in response to any
of the foregoing document requests, or otherwise, the following
documents and things : any and all documents and things, of any
4
e r
nature and description whatsoever, which the plaintiff intends to
offer into evidence at the trial of this matter. In the event that
the plaintiff does not have any of the foregoing documents or has
not been able to obtain them in a timely fashion, s/he shall state
in writing, under the penalties of perjury, the specific documents
which are not available, the reasons the documents are not
available, and what efforts have been made to obtain the
documents . As more information becomes available there is a
continuing duty to supplement.
THE CITY OF SALEM, et al,
By Their City So icitor,
A0 / 19 —
Wi iam J. Lundre n, Esq.
81 Washington eet
Suite 37
Salem, MA 01970
Tel: 978 . 741. 3888
Certificate of Service
I, William J. Lundregan, hereby certify that on /
1999 I mailed, postage pre-paid, a copy of the foregoing document
to: Morris M. Goldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under penalty of perjury.
Willi J. Lundregan, q.
5
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COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
ESSEX, ss . Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
VS. ANSWER OF DEFENDANTS,
CITY OF SALEM AND CITY
WALTER B. POWERS, III, CHARLES OF SALEM PLANNING BOARD
M. PULED, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
COUNT I : JUDICIAL REVIEW UNDER G.L. CH. 40A, SEC. 17
1. The first sentence in paragraph 1 of the complaint is admitted;
the second sentence is denied.
2 . The allegations in paragraph 2 of the complaint are admitted,
except for so much thereof as alleges that " (a) copy of the
Decision is attached hereto and marked `A,'" which is denied.
3 . The allegations in paragraph 3 of the complaint that state,
" (t) he complaint also seeks a declaration of rights under G. L. c.
231A with respect to the actions of the Planning Board and the
City of Salem" are admitted; any and all remaining allegations in
1
paragraph 3 are denied.
4 . The defendants are without sufficient knowledge to admit or
deny the allegations in paragraph 4 of the complaint and call upon
the plaintiffs to prove the same.
5 . The defendants are without sufficient knowledge to admit or
deny the allegations in paragraph 5 of the complaint and call upon
the plaintiffs to prove the same.
6. Admitted.
7 . Admitted.
8 . Admitted.
9 . The defendants neither admit, nor deny, the allegations in
paragraph 9 of the complaint, but state that the statute
referenced therein speaks for itself; moreover, the defendants say
that the excerpted portions of the statute may not properly be
read and interpreted in isolation from other, pertinent portions
of the statute and/or from the provisions of other relevant
statutes and laws.
10 . The defendants neither admit, nor deny, the allegations in
paragraph 10 of the complaint, but state that the ordinance
referenced therein speaks for itself; moreover, the defendants say
that the excerpted portions of the ordinance may not properly be
read and interpreted in isolation from other, pertinent portions
of the ordinance and/or from the provisions of other relevant
ordinances, statutes and laws .
11 . Admitted, that, 'i (o) n September 4, 1997, the Planning Board
adopted a "Master Plan Update . . . , as for the remaining
allegations in paragraph 11 of the complaint, the defendants
neither admit, nor deny, the same, but instead say that that the
2
excerpted portion of the Master Plan Update may not properly be
read and interpreted in isolation from other, pertinent portions
of the Plan and/or from the provisions of other relevant
ordinances, statutes and laws.
12 . Admitted, that, " (o) n August 14 , 1997, the City of Salem
issued a request for a proposal for a consultant to prepare a
hotel feasibility study," and that the passage therefrom quoted in
paragraph 12 of the complaint does appear in the request for
feasibility study; any and all remaining allegations in paragraph
are denied; and further answering, the defendants say that that
the quoted excerpt from the request may not properly be read and
interpreted in isolation from other, pertinent portions of the
request and/or from the provisions of other relevant ordinances,
statutes and laws.
13 . The first sentence in paragraph 13 of the complaint is
admitted; the balance of that paragraph is denied.
14 . The first sentence in paragraph 14of the complaint is
admitted; the balance of that paragraph is denied.
15 . The first sentence in paragraph 15 of the complaint is
admitted; the balance of that paragraph is denied.
16. Admitted, that the passages quoted from the Landauer Report in
paragraph 16 of the complaint do appear in that report; however,
the defendants say that that the quoted excerpts from the Report
may not properly be read and interpreted in isolation from other,
pertinent portions of the Report and/or from the provisions of
other relevant ordinances, statutes and laws.
17 . Admitted, that, " (o) n May 27, 1999, the Defendant Pickering
Wharf filed a letter purporting to be an application with the
Defendant Planning Board for a `Site Plan Review and Wetlands and
3
Flood Hazard District Special Permit, '" and that the excerpt
therefrom quoted in paragraph 17 of the complaint does appear in
the application; the balance of paragraph 17 is denied; and
further answering, the defendants say that the quoted excerpts
from the application may not properly be read and interpreted in
isolation from other, pertinent portions of the application and/or
from the provisions of other relevant documents, ordinances,
statutes and laws.
18 . Admitted.
19 . The first sentence in paragraph 19 of the complaint is
admitted; the balance of paragraph 19 is denied; and any express
or implied allegation that the "objections" contained in the
referenced letter were valid is also denied.
20 . Admitted, that, " (o) n July 28, 1999, the Trust appeared
through counsel before the Planning Board at its hearing and
presented documents, testimony and argument in opposition to the
application," and that counsel for the Trust made the arguments
set out in the balance of paragraph 20 of the complaint; any
express or implied allegation that counsel' s arguments were valid
and supported by the evidence before the Board is denied.
21 . Admitted, that, " (o) n July 28, 1999, the Trust presented to
the Planning Board a copy of a report dated January 14, 1997,
previously furnished to the Board, from Pinnacle Advisory Group
. . . entitled: `Market Demand Study for a Proposed Hotel to be
Located in Salem, Massachusetts,'" and that the language quoted
from the report in paragraph 21 of the complaint does appear in
the report; any and all remaining allegations in paragraph 21 are
denied; and further answering, the defendants say that the quoted
excerpts from the report may not properly be read and interpreted
in isolation from other, pertinent portions of the report and/or
4
from the provisions of other relevant documents, ordinances,
statutes and laws .
22 . Admitted, that, " (o) n July 28, 1999, a principal of Pinnacle
Advisory Group presented testimony to the Board" ; the balance of
the allegations in paragraph 22 of the complaint are conclusory,
seek to characterize the testimony, and are denied; and any
express or implied allegation that the testimony was valid and
supported by the evidence before the Board is also denied.
23 . Admitted, that, "the City has required the Pickering Wharf
Trust to develop a hotel of `not less than 70 and not more than
190 rooms' as part of a Tax Increment Financing program with
respect to which the City entered a Memorandum of Understanding on
April 8, 1998" ; any and all remaining allegations in paragraph 23
of the complaint are denied.
24. Denied.
25. Denied.
26. Denied.
COUNT TWO: DUE PROCESS
27 . Defendants incorporate by reference and here re-allege their
respective responses to paragraphs 1-26, supra .
28 . Denied.
29 .
AFFIRMATIVE DEFENSES
Further answering the complaint, the defendants say as follows:
5
1 . The defendants say that the decisions complained of were made
lawfully, properly and wholly within the scope of their
administrative discretion.
2 . The defendants plead failure to exhaust administrative
remedies .
3. The defendants plead insufficiency of process .
4. The defendants plead insufficiency of service of process.
5 . The defendants specifically deny the genuineness of any
purported signatures upon documents which the plaintiffs rely on
in this case.
6. The defendants plead laches .
7 . The defendants state that the present action against them is
time-barred by operation of the applicable statute ( s) of
limitations.
8 . The defendants plead lack of subject matter jurisdiction.
9. The defendants plead lack of personal jurisdiction.
10 . The defendants plead improper venue.
11 . The defendants say that the plaintiffs lack standing to bring
the present complaint and/or the various counts thereof, for the
reason - among others - that they do not qualify as "aggrieved
persons" under the applicable laws .
12 . The defendants plead unclean hands on the part of the
plaintiffs .
13. The defendants plead estoppel on the part of the plaintiffs .
6
14 . The defendants state that the plaintiffs have failed to
satisfy the procedural prerequisites to bringing this action.
15. The defendants say that for all of the reasons aforementioned,
the complaint fails to state a claim upon which relief may be
granted.
WHEREFORE, the defendants demand the dismissal of the complaint,
with costs taxed to the plaintiffs .
THE CITY OF SALEM, et al,
By Their City Solicitor,
William J. Lundregan, Esq.
81 Washington Street
Suite 37
Salem, MA 01970
Tel: 978 . 741 . 3888
Certificate of Service
I, William J. Lundregan, hereby certify that on
1999 I mailed, postage pre-paid, a copy of the foregoing document
to: Morris M. Goldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under penalty of perjury.
William J. Lundregan, Esq.
7
PUG-20-99 19 : 39 FROM;ROCKETT MGMT ID=6176392290 PAGE 9/15
COMMONWEALTH OF MASSACHUSETTS
ESSEX,SS,Sitting in TRIAL COURT OF TI-e
SUFFOLK, SS CONZIONWEALTH
LAND COURT DEPARTMENT
Civil Action No.
DOROTHY L.HARRINGTON,AS SHE IS
TRUSTEE OF THE THREE CORNERS
REALTY TRUST,AND DONALD J.
MICHAUD AND MARY G.MICHAUD,AS
THEY ARE TRUSTEES OF THE MI-SKE
REALTY AND U,VESTMENT TRUST
Plaintiff's
V.
WALTER B.POWER,III, AS HE IS
CHAIRMAN AND CHARLES M. PULEO,
JOAN C.MOUSTAKIS,GENE COLLINS,
KIM DRISCOLL,L.LEE HARRINGTON,
CARTER VINSON,DAVID WEINER, AND
WILLIAM R. CULLEN,AS THEY ARE
MEMBERS OF THE PLANNING BOARD
OF THE CITY OF SALEM;, THE CITY OF
SALEM;AND J. HILARY ROCKETT,AS
HE IS TRUSTEE OF PICKERING WHARF
REALTY TRUST
Defendants
COMPLAINT
COUNT 1: JUDICIAL REVIEW UNDER G.L. C.40A ¢ 17
INTRODUCTION
1. This is a complaint for judicial review against the Planning Board of the City of
Salem, the City of Salem and the Pickering Wharf Realty Trust by persons
aggrieved by a decision of the Planning Board as it is constituted as a special
permit granting authority which granted a special permit to the Pic' erilg Wharf
Realty Trust. As set forth in this complaint, this decision was is excess of the
f
FUG-20-99 14 : 35 FROM:ROCKETT MGMT ID :6176392290 PAGE 5!75
authority of the said Board and was legally untenable, unreasonable, capricious
and arbitrary_
2. This complaint seeks to annul the decision of the Planning Board rendered July
29, 1999,and filed in the Office of the City Clerk July 29, 1999 (the "Decision').
(A copy of the Decision is attached hereto and marked"A.")
3. The complaint also seeks a declaration of rights under G.L. c- 23 IA with respect
to the actions of the Planning Board and the City of Salem by virtue of the failure
of the Planning Board to consider in its Decision the diminished value of, and the
adverse effect upon,the property rights of the Plaintiffs caused by the Decision
and the adverse economic effect on the City of Salem and its citizens generally.
PARTIES
4. The Plaintiff Dorothy L. Harrington is the Trustee of Three Comers Realty Trust
(the"Trust"), a Massachusetts Realty Trust which was established under a
Declaration of Trust dated December 30, 1985,and recorded in Essex South
District Registry of Deeds, Book 8150, page 380. The Trust owns the property
known as the Hawthorne Hotel(the"Hawthome'�Iocated on the Common at 18
Washington Square West in Salem, Massachusetts and is very near the property
subject to the Decision(approximately 800 feet away). The Hawthorne has
existed since 1925 and is presently operated as a hotel with eighty-nine (89)
rooms. It employs approximately one hundred ninety (190) full and part-time
employees,of which approximately one hundred ten(110) are residents of the
City of Salem.
2
AUG-20-99 14 : 35 FROM :ROCKETT MGMT ID:6176392290 PAGE 6!75
5. The Plaintiffs Donald J. Michaud and Mary G. Michaud reside at 12 Savoy Road
in Salezat, Massachusetts and are Trustees of the Mi-Ske Realty and Investment
Trust, a Massachusetts Realty Trust which was established under a Declaration of
Trust dated April 6, 1992, and recorded in Essex South District Registry of Deeds,
Book 11431, page 426. The trust owns the property at 222/224 Derby Street,
Salem,Massachusetts, which abuts the property subject to the Decision.
6. The Defendants Walter B.Power, III of 18 Loring Avenue, Salem, Massachusetts,
Charles M. Puleo of 5 Freeman Road, Salem, Massachusetts,John C. Moustakis
of 25 Dearborn Street, Salem,Massachusetts, Gene Collins of 63 Appleton Street,
Salem, Massachusetts,Kim Driscoll of 12 Charles Street, Salem, Massachusetts,
L. Lee Harrington of 23 Beach Avenue, Salem,Massachusetts, Carter Vinson of 7
Chestnut Street, Salem,Massachusetts, David Weiner of 16 Bay View Circle,
Salem, Massachusetts,and William R. Cullen of 41 Walter Street, Salem,
Massachusetts are the Chairman and members of the Planning Board of the City
of Salem existing pursuant to the provisions of G.L. c. 41 § 81A.
7. The Defendant City of Salem is a municipal corporation-
s. The Defendant J. Hilary Rockett is the Trustee of the Pickering Wharf Realty
Trust("Pickering Wharf.") The address of the Trust is 190 Pleasant Street,
Marblehead,MA 01945.
THE LAW GOVERNING THE PLANNING BOARD AND
THE EVIDENCE BEFORE THE BOARD
9. The Defendant Planning Board is required by G.L. c. 41, § SID to establish a
master plan and is authorized to "perfect such plan-" The master plan is required
to be"a statement,through text, maps, illustrations or other forms of
3
AUG-20-99 14 36 FROM :ROCKETT MGMT ID:6176392290 PAGE 7.' 15
communication, that is designed to pro-zde a basis for decision making regarding
the long-Term physical development of the municipality. The comprehensive plan
shall be iotemally consistent in its policies, forecasts and standards, and shall
include the following elements:...
(1) Goals and policies statement which identifies the goals and
policies of the municipality for its future growth and development.
Each community shall conduct an interactive public process, to
determine community values,goals and to identify patterns of
development that will be consistent with these goals.
(4) Economic development element which identifies policies and
strategies for the expansion or stabilization of the local economic
base and the promotion of employment opportunities."
10. The Salem Zoning Ordinance contains in its Section 7-18 entitled"Site Plan
Review"the following:
"The planning board shall review [an application]... and make
certain that the development,if approved, takes place in a manner
which shall in all aspects be an asset to the city..."
11. Oa September 4, 1997, the Planning Board adopted a"Master Plan Update"
which included among its provisions the development of"Greater quantity and
variety of lodging alternatives—encourage development of convention hotel,
family and B&B lodging..."
4
AUG-20-99 19 : 36 FP0M :R0CKETT MGMT ID :6176392290 PAGE 8/ 15
12. On August 14, 1997, the City of Salem issued a request for proposal for a
consultant to prepare a hotel feasibility study. The request specifically includes
the following at p. I —"The result of the study shall include: a determination of
the number of hotel rooms that can be absorbed into the Salem market" A copy
of the request for proposal is attached hereto and marked "C."
13. On August 29, 1997,the City of Salem received a response to the request for
proposal from Landauer Hospitality Group and a letter relating to the proposed
engagement. (The response and letter are attached hereto and marked "D.")
14. On September 4, 1997 (the same day on which the Board adopted the Master Plan
Update),the City of Salem executed an agreement with Landauer Hospitality
Group for a hotel feasibility study based upon the request for proposal referred to
as Fixhibit C. A copy of the Agreement is attached hereto as "
15. On December 31, 1997, the Landauer Hospitality Group issued its Report
pursuant to the Agreement. A copy of this Report is attached as"IF."
16. W its Report to the Defendant City of Salem, the Landauer Hospitality Group
concluded the following with respect to a new hotel:
"Salem is a highly seasonal market. Although Salem's unique
history and varied attractions draw an estimated 650,000 visitors
Per the maof these visits occur between June and
year, majority
October." (Page 3, Landauer Report"F,"City of Salem,
December, 1997.)
s
4UG-20-95 19 : 36 FF.OM ;PDCKETT MGMT 10:6176392290 PAGE
"Two p-oject facility scenarios were analyzed during the course of
this assignment, a 120-room,mid market, full-service lodging
facility and a 66-room limited-service lodging facility. Each
scenario was analyzed in the context of site dynamics, project
costing,site plan layout,and prospective market and financial
performance. It was determined, that a 66-room limited service
hotel stood the best chance of attracting private sector developer
interest-1,
"A small 66-roomlimited service hotel at Pickering Wharf appears
Market Wpartable. Significant concessions will be required from
the City of Salem and a potential developer in order to render the
project financially feasible."(Page 8, Landauer Report"F", City of
Salem„ December, 1997.)
"The hotels Iocated in Salem will be particularly vulnerable to the
hotel expansion currently taking place on the North Shore's
highways. In most instances,these looatious offer higher visibility,
greater accessibility and closer proximity to the major demand
generators in the North Shore market. As a result, expansion of the
hotel supply in the future will have a greater impact on hotels with
secondary locations such as Salem." Page 55, Landauer Report
"F,"City of Salem, December, 1997.)
'Based on the preceding analysis of the market area including the
existing properties and planned additions to the hotel supply,Nve
6
,AUG-20-99 14 : 37 FROVI:RDCKETT MGMT ID 6176392290 PAGE 10!15
recommend selection of the Pickering Wharf site for potential
hotel development. This selection was based upon the superior
attributes of the,site as outlined in the Site Analysis section of this
report. Market, anticipatcd financial performance and site
' constraints size the property at 66 guest rooms. We do not believe
that the development of abill-service property will yield any
significant advantage cost of developing such a property. Our
�f t research supports the development of a limited-service hotel with a
P��pd national franchise affiliation."(Page 63,Landauer Report"F,"City
®� g of Salem, December, 1997.)
P�
"Despite its waterfront location and close proximity to Salem's
many attractions including tourist destinations, restaurants and
shopping,the prospective hotel will still have a locational
disadvantage when compared to the competitive hotels located on
the area's highways. With its modem accommodations and
facilities,the prospective hotel will have a competitive advantage
over the two Salem hotels, the Salem Inn and Hawthorne Hotel, in
capturing tourism and locally generated corporate demand." (Page
64, Landauer Report "F," City of Salem,December, 1997).
(Emphasis added)
THE DECISION OF THE PLANNING BOARD
IT On May 27, 1999,the Defendant Pickering Wharf filed a letter purporting to be
an application with the Defendant Planrung Board for a"Site Plan Review and
f
,AUG-20-99 14 : 37 FROM :ROCKETT MGMT 10 =6176392290 PAGE 17! 15
Wetlands and Flood Hazard District Special Permits" for"the construction of a
five-story hotel/retail building and a new single-story bank building at 223-231
Derby Street and 23 Congress Street in the City of Salem...[and] a parking lot
consisting of 83 vehicle spaces." (Decision"A", first paragraph). The letter
purporting to be the application is attached hereto as "A-1." The City of Salem
Form of Application for Site Plan Review Permit(not filed by Pickering Wharf)
is attached hereto as "A-2." Nowhere in the letter of Pickering Trust nor in the
Decision is there a statement of the number of rooms in the proposed hotel,
although the form of application (not filed)calls for a statement of the number of
units.
18. A public hearing was commenced by the Planning Board on June 17, 1999,and
continued on July 1, 1999,and July 28, 1999, with respect to that application.
19. On July 1, 1999,a representative of the Trust sent to the Defendant Power a letter
setting forth objections to the application. (A copy of that tetter is attached hereto
and marked"B').
20. On July 28, 1999,the Trust appeared through counsel before the Planning Board
at its hearing and presented documents,testimony and argument in opposition to
the application primarily on the grounds that the unrebutted evidence(including
specifically a Report of a consultant authorized by the Defendant City of Salem
its.If)before the Planning Board with respect to the ability of the City of Salem to
support economically a hotel of the size proposed by the application demonstrated
that the addition of such a hotel in the Salem market would be likely to cause
serious dimunition of the value of the property of the Trust. Evidence presented
8
AUG-20-99 14 = 38 FROM :ROCKETT MCMT : D:6176392290 PACE 12! 15
by the Michaud's demonstrated that the size of the proposed hotel structure would
diminish the economic value and important amenities of the Michaud property.
21. On July 28, 1999,the Trust presented to the Planning Board a copy of a report
dated January 14, 1997,previously furnished to the Board, from Pinnacle
Advisory Group, a hotel development consultant, entitled: "Market Demand �APF'� ( t
Study for a Proposed Hotel to be Located in Salem,Massachusetts."(A copy of �` S
that report is attached hereto and marked"G.") That report concluded that"Given
the strength of the demand in the market,we believe that a 60-room hotel would
be most appropriate.""(Page 16).
22_ On July 28, 1999,a principal of Pinnacle Advisory Group presented testimony to
the Board reaffirming and updating the report of the Pinnacle Advisory Group and
sated its conclusion that a limited service hotel in excess of approximately 60
rooms would be likely to fail and was likely to cause economic damage to the
property of the Trust itself by virtue of the excess number of rooms in the Salem
market over the demand therefor.
23. Notwithstanding the conclusions of the Landauer Report and the Pinnacle
Advisory Group Report,the City has required the Pickering Wharf must to
develop a hotel of"not less than 70 and not more than 140 rooms" as part of a
Tax Increment Financing program with respect to which the City entered a
Memorandum of Understanding on April 8, 1998. (A copy of that Memorandum
of Understanding is attached hereto and marked "R.")
24. No evidence was presented to the Planning Board contradicting the Report of the
City's own consultant In fact,other evidence presented to the Board confumed
9
AUG-20-99 14 : 36 FROM:ROCKETT MGMT ID-6176392290 PAGE 13/15
the conclusions of the Report of the City's consultant as to the adverse effect of
the proposed hotel on the property of the Trust and its lack of economic
feasibility.
25. Notwithstanding the undisputed evidence before the Planning Board, the Board
T
rendered the Decision which in no way reflects any analysis of,or even �F
l Cr
consideration of, or any determination with respect to, the economic effects of ther
me �
proposed hotel on the property of any abutters or any person very near they
property.
26_ In the light of the evidence before the Planning Board, including specifically the
conclusions of the Report of the consultant authorized by the City of Salem itself,
the action of the Planning Board in issuing the Decision without analysis or
consideration of any evidence of diminished value of property or adverse effects
on property rights,and contrary to all of the evidence before the Board,was in
excess of the authority of the Board and was legally untenable, unreasonable,
capricious and arbitrary and should be annulled.
COUNT TWO: DUE PROCESS
27. The Plaintiffs incorporate herein by reference paragraphs I through 26.
28. The failure of the Planning Board to give any analysis of land use planning
considerations,including economic factors relating to the nature of adjoining
uses, as detailed in the Report authorized by the City of Salem, in its special
permit Decision constituted a denial of due process to the Plaintiffs in violation of
knicle XII of the Declaration of Rights of the Constitution of The
10
AUG-20-99 39 : 39 FRDM -ROCKETT MGMT !D:6176392290 PAGE 19/ I5
Commonwealth of Massachusetts and the Fifth and Fourteenth Amendments to
the United States Constitution.
WfEREFOR.E, the Plaintiffs pray that:
I. The Court hear all the evidence pursuant to G.L. c. 40A, § 17 pertinent to the
authority of the Planning Board of the City of Salem to issue the Decision dated
July 29, 1999.
2. The Court determine the facts and,upon the facts as so determined,annul the
decision of the Planning Board of the City of Salem dated July 29, 1999,was in
excess of the authority of the said Board and legally untenable, unreasonable,
capricious and arbitrary.
3. The Court pursuant to G.L. c. 231 A make a binding declaration that the Planning
Board of the City of Salem must consider the effect of the granting of a special
permit for the construction of a new hotel upon the value of the property and
property rights of an abutter or person whose property is very near.
4. The Court snake such other decree as justice and equity may require,including,
but not limited to,remanding this matter to the Planning Board with instructions
to hear further evidence of the diminished value of the property of the Plaintiffs
and the adverse effects on the Plaintiffs' property rights caused by the proposed
hotel facility and to make specific findings upon such evidence before rendering
any new decision upon the application.
11
L
AUG-20-99 14 . 39 FRDM :ROCKETT MGMT ID :6176392292) PAGE 15! 15
DOROTHY L. HARRINGTON, AS SHE
IS TRUSTEE OF THE THREE
CORNERS REALTY TRUST AND
DONALD J.MTCHA.UD AND MARY G.
MICHAUD,AS THEY ARE TRUSTEES
OF THE MI-SKE REALTY AND
INVESTMENT TRUST
eir Attorney,
r
Morns M. Goldings
BBO# 198800
MAHONEY, HAWKES &GOI.DTNGS, LLP
The Heritage on the Garden
75 Park Plaza
Boston, Massachusetts 02116
Tel: 617-457-3100
Date: August 17, 1999
047,262
12
COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
ESSEX, ss . Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
Vs . ANSWER OF DEFENDANTS,
CITY OF SALEM AND CITY
WALTER B. POWERS, III, CHARLES OF SALEM PLANNING BOARD
M. PULEO, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
COUNT I : JUDICIAL REVIEW UNDER G.L. CH. 40A, SEC. 17
1. The first sentence in paragraph 1 of the complaint is admitted;
the second sentence is denied.
2 . The allegations in paragraph 2 of the complaint are admitted,
except for so much thereof as alleges that " (a) copy of the
Decision is attached hereto and marked `A,'" which is denied.
3 . The allegations in paragraph 3 of the complaint that state,
" (t) he complaint also seeks a declaration of rights under G. L. c.
231A with respect to the actions of the Planning Board and the
City of Salem" are admitted; any and all remaining allegations in
1
paragraph 3 are denied.
4 . The defendants are without sufficient knowledge to admit or
deny the allegations in paragraph 4 of the complaint and call upon
the plaintiffs to prove the same.
5 . The defendants are without sufficient knowledge to admit or
deny the allegations in paragraph 5 of the complaint and call upon
the plaintiffs to prove the same.
6. Admitted.
7 . Admitted.
8. Admitted.
9 . The defendants neither admit, nor deny, the allegations in
paragraph 9 of the complaint, but state that the statute
referenced therein speaks for itself; moreover, the defendants say
that the excerpted portions of the statute may not properly be
read and interpreted in isolation from other, pertinent portions
of the statute and/or from the provisions of other relevant
statutes and laws .
10 . The defendants neither admit, nor deny, the allegations in
paragraph 10 of the complaint, but state that the ordinance
referenced therein speaks for itself; moreover, the defendants say
that the excerpted portions of the ordinance may not properly be
read and interpreted in isolation from other, pertinent portions
of the ordinance and/or from the provisions of other relevant
ordinances, statutes and laws .
11 . Admitted, that, " (o) n September 4, 1997 , the Planning Board
adopted a "Master Plan Update . . ." ; as for the remaining
allegations in paragraph 11 of the complaint, the defendants
neither admit, nor deny, the same, but instead say that that the
2
excerpted portion of the Master Plan Update may not properly be
read and interpreted in isolation from other, pertinent portions
of the Plan and/or from the provisions of other relevant
ordinances, statutes and laws .
12 . Admitted, that, " (o) n August 14 , 1997 , the City of Salem
issued a request for a proposal for a consultant to prepare a
hotel feasibility study," and that the passage therefrom quoted in
paragraph 12 of the complaint does appear in the request for
feasibility study; any and all remaining allegations in paragraph
are denied; and further answering, the defendants say that that
the quoted excerpt from the request may not properly be read and
interpreted in isolation from other, pertinent portions of the
request and/or from the provisions of other relevant ordinances,
statutes and laws .
13 . The first sentence in paragraph 13 of the complaint is
admitted; the balance of that paragraph is denied.
14 . The first sentence in paragraph 14 of the complaint is
admitted; the balance of that paragraph is denied.
15 . The first sentence in paragraph 15 of the complaint is
admitted; the balance of that paragraph is denied.
16. Admitted, that the passages quoted from the Landauer Report in
paragraph 16 of the complaint do appear in that report; however,
the defendants say that that the quoted excerpts from the Report
may not properly be read and interpreted in isolation from other,
pertinent portions of the Report and/or from the provisions of
other relevant ordinances, statutes and laws .
17 . Admitted, that, " (o) n May 27 , 1999, the Defendant Pickering
Wharf filed a letter purporting to be an application with the
Defendant Planning Board for a `Site Plan Review and Wetlands and
3
Flood Hazard District Special Permit, '" and that the excerpt
therefrom quoted in paragraph 17 of the complaint does appear in
the application; the balance of paragraph 17 is denied; and
further answering, the defendants say that the quoted excerpts
from the application may not properly be read and interpreted in
isolation from other, pertinent portions of the application and/or
from the provisions of other relevant documents, ordinances,
statutes and laws.
18. Admitted.
19 . The first sentence in paragraph 19 of the complaint is
admitted; the balance of paragraph 19 is denied; and any express
or implied allegation that the "objections" contained in the
referenced letter were valid is also denied.
20 . Admitted, that, " (o) n July 28, 1999, the Trust appeared
through counsel before the Planning Board at its hearing and
presented documents, testimony and argument in opposition to the
application," and that counsel for the Trust made the arguments
set out in the balance of paragraph 20 of the complaint; any
x r
e p ess or implied allegation that counsel' s arguments were valid
and supported by the evidence before the Board is denied.
21 . Admitted, that, " (o) n July 28, 1999, the Trust presented to
the Planning Board a copy of a report dated January 14, 1997 ,
previously furnished to the Board, from Pinnacle Advisory Group
. . . entitled: `Market Demand Study for a Proposed Hotel to be
Located in Salem, Massachusetts,'" and that the language quoted
from the report in paragraph 21 of the complaint does appear in
the report; any and all remaining allegations in paragraph 21 are
denied; and further answering, the defendants say that the quoted
excerpts from the report may not properly be read and interpreted
in isolation from other, pertinent portions of the report and/or
4
from the provisions of other relevant documents , ordinances,
statutes and laws .
22 . Admitted, that, 'i (o) n July 28, 1999, a principal of Pinnacle
Advisory Group presented testimony to the Board" ; the balance of
the allegations in paragraph 22 of the complaint are conclusory,
seek to characterize the testimony, and are denied; and any
express or implied allegation that the testimony was valid and
supported by the evidence before the Board is also denied.
23 . Admitted, that, ` the City has required the Pickering Wharf
Trust to develop a hotel of `not less than 70 and not more than
190 rooms' as part of a Tax Increment Financing program with
respect to which the City entered a Memorandum of Understanding on
April 8, 1998" ; any and all remaining allegations in paragraph 23
of the complaint are denied.
24 . Denied.
25. Denied.
26. Denied.
COUNT TWO: DUE PROCESS
27 . Defendants incorporate by reference and here re-allege their
respective responses to paragraphs 1-26, supra.
28 . Denied.
29
AFFIRMATIVE DEFENSES
Further answering the complaint, the defendants say as follows :
5
1 . The defendants say that the decisions complained of were made
lawfully, properly and wholly within the scope of their
administrative discretion.
2 . The defendants plead failure to exhaust administrative
remedies .
3. The defendants plead insufficiency of process.
4. The defendants plead insufficiency of service of process.
5 . The defendants specifically deny the genuineness of any
purported signatures upon documents which the plaintiffs rely on
in this case.
6. The defendants plead laches.
7 . The defendants state that the present action against them is
time-barred by operation of the applicable statute ( s ) of
limitations.
8. The defendants plead lack of subject matter jurisdiction.
9. The defendants plead lack of personal jurisdiction.
10 . The defendants plead improper venue.
11 . The defendants say that the plaintiffs lack standing to bring
the present complaint and/or the various counts thereof, for the
reason - among others - that they do not qualify as "aggrieved
persons" under the applicable laws .
12 . The defendants plead unclean hands on the part of the
plaintiffs .
13 . The defendants plead estoppel on the part of the plaintiffs .
6
14 . The defendants state that the plaintiffs have failed to
f satisfy the procedural prerequisites to bringing this action.
15 . The defendants say that for all of the reasons aforementioned,
the complaint fails to state a claim upon which relief may be
granted.
WHEREFORE, the defendants demand the dismissal of the complaint,
with costs taxed to the plaintiffs.
THE CITY OF SALEM, et al,
By Their City Solicitor,
Wil am J. Lundreq'X, Esq.
81 ashington Sheet
Suite 37
Salem, MA 01970
Tel: 978 . 741 . 3888
Certificate of Service
I, William J. Lundregan, hereby certify that on
1999 I mailed, postage pre-paid, a copy of the foregoing document
to: Morris M. Geldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under penalty of perjury.
Willi J. undrega Esq.
7
COMMONWEALTH OF MASSACHUSETTS
00 THE LAND COURT
ESSEX, ss . Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
VS.
WALTER B. POWERS, III, CHARLES
M. PULED, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
INTERROGATORIES PROPOUNDED BY DEFENDANT, CITY OF SALEM,
TO THE PLAINTIFF, DOROTHY L. HARRINGTON, TRUSTEE
Pursuant to Mass . R. Civ . P . 33, the plaintiff, Dorothy L.
Harrington, Trustee, is hereby required to answer each and every
one of the following interrogatories within the time provided by
said rule . NOTE: Notwithstanding their use of "all," "any
and all" and/or other, all-inclusive designations, the
following interrogatories shall be deemed to exclude from their
scope materials privileged by the attorney-client privilege, the
attorney work-product privilege, and the privilege afforded to
materials compiled by or at the behest of Counsel in
1
t '
anticipation of litigation.
1 . Please state your name, address, occupation, and business
address (es) .
2 . Please state the name, address, occupation, and business
address of each and every person consulted in order to obtain
information used in answering these interrogatories, excepting
herefrom only the defendant' s attorney.
3 . Please state the name, address, occupation, and business
address of each and every person known to, or believed by, you to
have knowledge regarding the facts of this case, excepting
herefrom only your attorney.
4 . Please state the date on which you acquired the property at 18
Washington Square West, Salem, Massachusetts, known as the
Hawthorne Hotel.
5 . Please state how the property at 18 Washington Square West,
Salem, Massachusetts was zoned (i . e . in what type of zoning
district it was located) on the date that you acquired it.
6 . Please state how the property at 223-231 Derby Street and 23
Congress Street, Salem, Massachusetts was zoned (i . e. in what type
of zoning district it was located) on the date that you acquired
your property at 18 Washington Square West, Salem, Massachusetts.
7 . Please describe how the property at 223-231 Derby Street and 23
Congress Street, Salem, Massachusetts appeared on the date that
you purchased acquired the property at at 18 Washington Square
West, Salem, Massachusetts . Include in your answer hereto, but
without limitation, the location, size and complete descriptions
of any and all buildings that were upon the property, the uses to
which such buildings were put, the location size and complete
9 P � ,
P
2
descriptions of any and all driveways, parking lots and other
paved areas on the property, the uses to which such paved areas
were put, the location, size and complete description of any and
all greenery and/or other plantings upon the property.
8 . Please describe, in full and complete detail, what uses have
been made of the property at 223-231 Derby Street and 23 Congress
Street, Salem, Massachusetts, from the date that you acquired your
property at 18 Washington Square West, Salem, Massachusetts, to
date hereof.
9 . Please describe, in full and complete detail, what uses have
been made of the property at 18 Washington Square West, Salem,
Massachusetts, from the date that you acquired it to date hereof.
10 . If, from the date on which you acquired your property at 18
Washington Square West, Salem, Massachusetts, to date hereof,
there have been any changes in the zoning of your said property,
please describe any and all such changes in full and complete
detail, providing the date and the substance of each and every
such change.
11 . If, from the date on which you acquired your property at 18
Washington Square West, Salem, Massachusetts, to date hereof,
there have been any changes in the zoning of the property at 223-
231 Derby Street and 23 Congress Street, Salem, Massachusetts,
please describe any and all such changes in full and complete
detail, providing the date and the substance of each and every
such change.
12 . If you or your predecessors in title have ever sought a
variance or a special permit for your property at 18 Washington
Square West, Salem, Massachusetts, then with respect to each and
every such instance, please provide the following information: the
3
date of the application, the nature of the variance or special
permit sought, the reason why you or they sought the variance or
special permit, whether or not the application was granted, and,
if it was granted, exactly what use (s) were made of the variance
or permit.
13 . If, to your knowledge, from the date on which you acquired
your property at 18 Washington Square West, Salem, Massachusetts,
to date hereof, the owners of the property at 223-231 Derby Street
and 23 Congress Street, Salem, Massachusetts ever sought a
variance or a special permit for that property, please provide the
following information: the date of the application, the nature of
the variance or special permit sought, the reason given for the
variance or special permit, whether or not the application was
granted, and, if it was granted, exactly what use (s) were made of
the variance or permit .
14 . If, from the date on which you acquired your property at 18
Washington Square West, Salem, Massachusetts, to date hereof, you
have ever made any improvements to the said property, please
describe any and all such improvements in full and complete
detail.
15 . Please state: (a) the date and manner in which you acquired
the property at 18 Washington Square West, Salem, Massachusetts,
(b) the price you paid to acquire the property, (c) the current
assessed value of that property, and (d) the current market value
of that property (to the best of your knowledge and belief) .
16 . What is the distance between the portion of your property at
18 Washington Square West, Salem, Massachusetts, that is nearest
to portion of the property at 223-231 Derby Street and 23 Congress
Street, Salem, Massachusetts?
4
17 . Please state, in full and complete detail, all of the factual
reasons for your opposition to the July 29, 1999 decision of the
City of Salem Planning Board which granted a special permit to the
Pickering Wharf Realty Trust . Include in your answer hereto any
and all specific harms to yourself or your property at 18
Washington Square West, Salem, Massachusetts, that you anticipate
from the issuance of the special permit; and with respect to each
and every such anticipated harm, please set forth the specific,
factual basis for your belief that such harm to yourself or your
property is likely to follow from the allowance of the special
permit .
18 . If you intend to call any expert witnesses to testify to the
matters described and discussed in interrogatory no. 17 and your
answer thereto, then please identify by name, address and area of
expertise each and every such expert witness, and with respect to
each and every such expert witness, please provide the following
information: (a) the subject matter on which the expert is
expected to testify, (b) the substance of the facts and opinions
to which the expert is expected to testify, and (c) a summary of
the grounds for each opinion.
19. If you intend to call any non-expert witnesses to testify to
the matters described and discussed in interrogatory no. 23 and
your answer thereto, then please identify by name, address,
occupation and business address, each and every such witness.
20 . Please identify, by name, address, occupation and business
address, each and every witness whom you intend to call to testify
at the trial of this matter.
5
M
THE CITY OF SALEM, et al,
By Their City Solicitor,
r'
Wi iam J. Lundy an, Esq.
81 Washington reet
Suite 37
Salem, MA 01970
Tel : 978 . 741 . 3888
Certificate of Service ppq
I, William J. Lundregan, hereby certify that on
1999 I mailed, postage pre-paid, a copy of the foregoing document
to: Morris M. Goldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under penalty of perjury.
illia J. undregaXEsq.
6
t
COMMONWEALTH OF MASSACHUSETTS
00000, THE LAND COURT
ESSEX, ss . Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
VS.
WALTER B. POWERS, III, CHARLES
M. PULED, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY DEFENDANT,
CITY OF SALEM, TO THE PLAINTIFF, DOROTHY L. HARRINGTON, TRUSTEE
Pursuant to Mass . R. Civ. P. 34 , the plaintiff, Dorothy L.
Harrington, Trustee, is hereby required to produce copies of the
documents described hereinbelow at the offices of the defendant' s
attorney within the time provided by rule . NOTE: Notwithstanding
their use of " all," " any and all" and/or other, all-
inclusive designations, the following Interrogatories shall be
deemed to exclude from their scope materials privileged by the
attorney-client privilege, the attorney work-product privilege,
and the privilege afforded to materials compiled by or at
1
the behest of Counsel in anticipation of litigation.
6
Any and all acceptances, accounts, advertisements, agreements,
amendments, applications, approvals, balance sheets, blueprints,
books , brochures, building permits, canceled checks, chalks ,
charts, circulars, citations, codicils, complaints, contracts,
correspondence, deeds , diagrams, drawings, flyers, graphics,
income statements, invitations, invoices, leaflets, ledgers,
literature, memoranda , notes , orders, outlines, permits ,
petitions , photographs, plans , proposals , purchase orders,
recordings (audio and/or video) , records, repair orders, reports,
responses, solicitations , special permits , specifications ,
statistical compilations, studies, submissions, variances, work
orders, and/or other documents or other tangible items, of any
kind and nature whatsoever, by whomever authored, for whatever
purpose ( s ) , to whomever addressed, and by whomever received,
excepting herefrom only matter privileged by the
aforementioned privileges, that are within the possession, custody
or control of the plaintiff, its agents, employees or servants, or
to which plaintiff has a right of access and may obtain by making
a reasonable effort, that allude to, attest to, describe,
document, illustrate, and/or otherwise evidence, in any manner
whatsoever, any or all of the following matters :
1 . The information or subject matter designated and described in
defendant' s interrogatory no. 2 and/or in the plaintiffs' answer
thereto.
2 . The information or subject matter designated and described in
defendant' s interrogatory no. 3 and/or in the plaintiffs' answer
thereto.
3 . The information or subject matter designated and described in
defendant' s interrogatory no. 4 and/or in the plaintiffs' answer
2
I�
thereto.
4 . The information or subject matter designated and described in
defendant' s interrogatory no. 5 and/or in the plaintiffs' answer
thereto.
5 . The information or subject matter designated and described in
defendant' s interrogatory no. 6 and/or in the plaintiffs' answer
thereto.
6 . The information or subject matter designated and described in
defendant' s interrogatory no. 7 and/or in the plaintiffs' answer
thereto.
7 . The information or subject matter designated and described in
defendant' s interrogatory no. 8 and/or in the plaintiffs' answer
thereto.
8 . The information or subject matter designated and described in
defendant' s interrogatory no. 9 and/or in the plaintiffs' answer
thereto.
9 . The information or subject matter designated and described in
defendant' s interrogatory no. 10 and/or in the plaintiffs' answer
thereto.
10 . The information or subject matter designated and described in
defendant' s interrogatory no. 11 and/or in the plaintiffs' answer
thereto.
11 . The information or subject matter designated and described in
defendant' s interrogatory no. 12 and/or in the plaintiffs' answer
thereto.
3
12 . The information or subject matter designated and described in
defendant' s interrogatory no . 13 and/or in the plaintiffs' answer
thereto.
13 . The information or subject matter designated and described in
defendant' s interrogatory no. 14 and/or in the plaintiffs' answer
thereto.
14 . The information or subject matter designated and described in
defendant' s interrogatory no. 15 and/or in the plaintiffs' answer
thereto.
15 . The information or subject matter designated and described in
defendant' s interrogatory no. 16 and/or in the plaintiffs' answer
thereto.
16. The information or subject matter designated and described in
defendant' s interrogatory no. 17 and/or in the plaintiffs' answer
thereto.
17 . The information or subject matter designated and described in
defendant' s interrogatory no. 18 and/or in the plaintiffs' answer
thereto.
18 . The information or subject matter designated and described in
defendant' s interrogatory no. 19 and/or in the plaintiffs' answer
thereto.
19 . The information or subject matter designated and described in
defendant' s interrogatory no. 20 and/or in the plaintiffs' answer
thereto.
20 . To whatever extent not previously provided in response to any
of the foregoing document requests, or otherwise, the following
documents and things : any and all documents and things, of any
4
I
' . Y
nature and description whatsoever, which the plaintiff intends to
offer into evidence at the trial of this matter. In the event that
the plaintiff does not have any of the foregoing documents or has
not been able to obtain them in a timely fashion, s/he shall state
in writing, under the penalties of perjury, the specific documents
which are not available, the reasons the documents are not
available, and what efforts have been made to obtain the
documents . As more information becomes available there is a
continuing duty to supplement .
THE CITY OF SALEM, et al,
By Their City So icitor,
v-
am J. Lundre n, Esq.
W i9f
81 Washington eet
Suite 37
Salem, MA 01970
Tel: 978 . 741 . 3888
Certificate of Service
I, William J. Lundregan, hereby certify that on
1999 I mailed, postage pre-paid, a copy of the foregoing document
to: Morris M. Goldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under penalty of perjury.
Willi J. Lundregan, q-
5
..-.r
COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
ESSEX, ss. Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
VS.
WALTER B. POWERS, III, CHARLES
M. PULEO, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
INTERROGATORIES PROPOUNDED BY DEFENDANT, CITY OF SALEM,
TO THE PLAINTIFF, DONALD J. MICHAUD, TRUSTEE
Pursuant to Mass . R. Civ. P. 33, the plaintiff, Donald J. Michaud,
Trustee, is hereby required to answer each and every one of the
following interrogatories within the time provided by said rule.
NOTE : Notwithstanding their use of " all," "any and all"
and/or other, all-inclusive designations, the following
interrogatories shall be deemed to exclude from their scope
materials privileged by the attorney-client privilege, the
attorney work-product privilege, and the privilege afforded to
materials compiled by or at the behest of Counsel in
anticipation of litigation.
1
a
1 . Please state your name, address, occupation, and business
address (es) .
2 . Please state the name, address, occupation, and business
address of each and every person consulted in order to obtain
information used in answering these interrogatories, excepting
herefrom only the defendant' s attorney.
3. Please state the name, address, occupation, and business
address of each and every person known to, or believed by, you to
have knowledge regarding the facts of this case, excepting
herefrom only your attorney.
4 . Please state the date on which you acquired the property at
222-224 Derby Street, Salem, Massachusetts .
5 . Please state how the property at 222-224 Derby Street, Salem,
Massachusetts was zoned (i . e. in what type of zoning district it
was located) on the date that you acquired it.
6 . Please state how the property at 223-231 Derby Street and 23
Congress Street, Salem, Massachusetts was zoned (i . e. in what type
of zoning district it was located) on the date that you acquired
your property at 222-224 Derby Street, Salem, Massachusetts.
7 . Please describe how the property at 223-231 Derby Street and 23
Congress Street, Salem, Massachusetts appeared on the date that
you purchased acquired the property at at 222-224 Derby Street,
Salem, Massachusetts . Include in your answer hereto, but without
limitation, the location, size and complete descriptions of any
and all buildings that were upon the property, the uses to which
such buildings were put , the location, size and complete
descriptions of any and all driveways, parking lots and other
paved areas on the property, the uses to which such paved areas
were put, the location, size and complete description of any and
2
all greenery and/or other plantings upon the property.
8 . Please describe, in full and complete detail, what uses have
been made of the property at 223-231 Derby Street and 23 Congress
Street, Salem, Massachusetts, from the date that you acquired your
property at 222-224 Derby Street, Salem, Massachusetts, to date
hereof.
9 . Please describe, in full and complete detail, what uses have
been made of the property at 222-224 Derby Street, Salem,
Massachusetts, from the date that you acquired it to date hereof.
10 . If, from the date on which you acquired your property at 222-
224 Derby Street, Salem, Massachusetts, to date hereof, there have
been any changes in the zoning of your said property, please
describe any and all such changes in full and complete detail,
providing the date and the substance of each and every such
change.
11 . If, from the date on which you acquired your property at 222-
224 Derby Street, Salem, Massachusetts, to date hereof, there have
been any changes in the zoning of the property at 223-231 Derby
Street and 23 Congress Street, Salem, Massachusetts, please
describe any and all such changes in full and complete detail,
providing the date and the substance of each and every such
change.
12 . If you or your predecessors in title have ever sought a
variance or a special permit for your property at 222-224 Derby
Street, Salem, Massachusetts, then with respect to each and every
such instance, please provide the following information : the date
of the application, the nature of the variance or special permit
sought, the reason why you or they sought the variance or special
permit, whether or not the application was granted, and, if it was
3
granted, exactly what use (s) were made of the variance or permit .
13 . If, to your knowledge, from the date on which you acquired
your property at 222-224 Derby Street, Salem, Massachusetts, to
date hereof, the owners of the property at 223-231 Derby Street
and 23 Congress Street, Salem, Massachusetts ever sought a
variance or a special permit for that property, please provide the
following information: the date of the application, the nature of
the variance or special permit sought, the reason given for the
variance or special permit, whether or not the application was
granted, and, if it was granted, exactly what use (s) were made of
the variance or permit .
14 . If, from the date on which you acquired your property at 222-
224 Derby Street, Salem, Massachusetts, to date hereof, you have
ever made any improvements to the said property, please describe
any and all such improvements in full and complete detail.
15 . Please state: (a) the date and manner in which you acquired
the property at 222-224 Derby Street, Salem, Massachusetts, (b)
the price you paid to acquire the property, (c) the current
assessed value of that property, and (d) the current market value
of that property (to the best of your knowledge and belief) .
16 . What is the distance between the portion of your property at
222-224 Derby Street, Salem, Massachusetts, that is nearest to
portion of the property at 223-231 Derby Street and 23 Congress
Street, Salem, Massachusetts?
17 . Please state, in full and complete detail, all of the factual
reasons for your opposition to the July 29, 1999 decision of the
City of Salem Planning Board which granted a special permit to the
Pickering Wharf Realty Trust . Include in your answer hereto any
and all specific harms to yourself or your property at 222-224
4
Derby Street, Salem, Massachusetts, that you anticipate from the
issuance of the special permit; and with respect to each and every
such anticipated harm, please set forth the specific, factual
basis for your belief that such harm to yourself or your property
is likely to follow from the allowance of the special permit .
18 . If you intend to call any expert witnesses to testify to the
matters described and discussed in interrogatory no . 17 and your
answer thereto, then please identify by name, address and area of
expertise each and every such expert witness, and with respect to
each and every such expert witness, please provide the following
information : (a) the subject matter on which the expert is
expected to testify, (b) the substance of the facts and opinions
to which the expert is expected to testify, and (c) a summary of
the grounds for each opinion.
19. If you intend to call any non-expert witnesses to testify to
the matters described and discussed in interrogatory no. 23 and
your answer thereto, then please identify by name, address,
occupation and business address, each and every such witness.
20 . Please identify, by name, address, occupation and business
address, each and every witness whom you intend to call to testify
at the trial of this matter.
THE CITY OF SALEM, et al,
By Their City Solicitor,
Wil amJ. Lundre Esq.
81 Washington S eet
Suite 37
Salem, MA 01970
Tel : 978 . 741 . 3888
5
Certificate of Service
I, William J. Lundregan, hereby certify that on /
1999 I mailed, postage pre-paid, a copy of the foreg ing document
to: Morris M. Geldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under pena ty of perjury.
Wi 1 ' m Lundr an, Esq.
6
I � A
COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
ESSEX, ss . Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
VS.
WALTER B. POWERS, III, CHARLES
M. PULED, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY DEFENDANT,
CITY OF SALEM, TO THE PLAINTIFF, DONALD J. MICHAUD, TRUSTEE
Pursuant to Mass. R. Civ. P. 34, the plaintiff, Donald J. Michaud,
Trustee, is hereby required to produce copies of the documents
described hereinbelow at the offices of the defendant' s attorney
within the time provided by rule . NOTE: Notwithstanding their
use of "all," "any and all" and/or other, all-inclusive
designations, the following Interrogatories shall be deemed to
exclude from their scope materials privileged by the attorney-
client privilege, the attorney work-product privilege, and the
privilege afforded to materials compiled by or at the
behest of Counsel in anticipation of litigation.
1
Any and all acceptances, accounts, advertisements, agreements,
amendments, applications, approvals, balance sheets, blueprints,
books, brochures, building permits, canceled checks, chalks ,
charts, circulars, citations, codicils, complaints, contracts,
correspondence, deeds, diagrams, drawings, flyers , graphics,
income statements , invitations, invoices, leaflets , ledgers,
literature, memoranda, notes, orders , outlines , permits ,
petitions, photographs, plans, proposals , purchase orders,
recordings (audio and/or video) , records, repair orders, reports,
responses, solicitations, special permits, specifications ,
statistical compilations, studies, submissions, variances, work
orders, and/or other documents or other tangible items, of any
kind and nature whatsoever, by whomever authored, for whatever
purpose ( s) , to whomever addressed, and by whomever received,
excepting herefrom only matter privileged by the
aforementioned privileges, that are within the possession, custody
or control of the plaintiff, its agents, employees or servants, or
to which plaintiff has a right of access and may obtain by making
a reasonable effort, that allude to, attest to, describe,
document, illustrate, and/or otherwise evidence, in any manner
whatsoever, any or all of the following matters:
1 . The information or subject matter designated and described in
defendant' s interrogatory no. 2 and/or in the plaintiffs' answer
thereto.
2 . The information or subject matter designated and described in
defendant',s interrogatory no. 3 and/or in the plaintiffs' answer
thereto.
3 . The information or subject matter designated and described in
defendant' s interrogatory no. 4 and/or in the plaintiffs' answer
thereto.
2
4 . The information or subject matter designated and described in
defendant' s interrogatory no . 5 and/or in the plaintiffs' answer
thereto.
5 . The information or subject matter designated and described in
defendant' s interrogatory no . 6 and/or in the plaintiffs' answer
thereto.
6 . The information or subject matter designated and described in
defendant' s interrogatory no. 7 and/or in the plaintiffs' answer
thereto.
7 . The information or subject matter designated and described in
defendant' s interrogatory no. 8 and/or in the plaintiffs' answer
thereto.
B . The information or subject matter designated and described in
defendant' s interrogatory no. 9 and/or in the plaintiffs' answer
thereto.
9 . The information or subject matter designated and described in
defendant' s interrogatory no. 10 and/or in the plaintiffs' answer
thereto.
10 . The information or subject matter designated and described in
defendant' s interrogatory no. 11 and/or in the plaintiffs' answer
thereto.
11 . The information or subject matter d
7 esignated and described in
defendant' s interrogatory no. 12 and/or in the plaintiffs' answer
thereto.
12 . The information or subject matter designated and described in
defendant' s interrogatory no . 13 and/or in the plaintiffs' answer
thereto.
3
.b
13 . The information or subject matter designated and described in
defendant' s interrogatory no. 14 and/or in the plaintiffs' answer
thereto.
14 . The information or subject matter designated and described in
defendant' s interrogatory no. 15 and/or in the plaintiffs' answer
thereto.
l
15 . The information or subject matter designated and described in
defendant' s interrogatory no. 16 and/or in the plaintiffs' answer
thereto.
16 . The information or subject matter designated and described in
defendant' s interrogatory no. 17 and/or in the plaintiffs' answer
thereto.
17 . The information or subject matter designated and described in
defendant' s interrogatory no. 18 and/or in the plaintiffs' answer
thereto.
18 . The information or subject matter designated and described in
defendant' s interrogatory no. 19 and/or in the plaintiffs' answer
thereto.
19. The information or subject matter designated and described in
defendant' s interrogatory no. 20 and/or in the plaintiffs' answer
thereto.
20 . To whatever extent not previously provided in response to any
of the foregoing document requests, or otherwise, the following
documents and things : any and all documents and things, of any
nature and description whatsoever, which the plaintiff intends to
offer into evidence at the trial of this matter. In the event that
the plaintiff does not have any of the foregoing documents or has
not been able to obtain them in a timely fashion, s/he shall state
4
in writing, under the penalties of perjury, the specific documents
which are not available, the reasons the documents are not
available, and what efforts have been made to obtain the
documents . As more information becomes available there is a
continuing duty to supplement.
THE CITY OF SALEM, et al,
By Their City Solicitor,
Wil am J. Lundre Esq.
81 Washington St eet
Suite 37
Salem, MA 01970
Tel : 978 . 741 . 3888
Certificate of Service
I, William J. Lundregan, hereby certify that on /
1999 I mailed, postage pre-paid, a copy of the foregoing document
to: Morris M. Geldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under penalty of perjury.
Wil `am Lundre , Esq.
5
COMMONWEALTH OF MASSACHUSETTS
THE LAND COURT
ESSEX, as . Docket No. 99-258338
DOROTHY L. HARRINGTON, Trustee of
the Three Corners Realty Trust,
and DONALD J. MICHAUD and MARY G.
MICHAUD, Trustees of the Mi-Ske
Realty and Investment Trust,
Plaintiffs
Vs . ANSWER OF DEFENDANTS,
CITY OF SALEM AND CITY
WALTER B. POWERS, III, CHARLES OF SALEM PLANNING BOARD
M. PULED, JOHN C. MOUSTAKIS,
GENE COLLINS, KIM DRISCOLL,
L. LEE HARRINGTON, CARTER VINSON,
DAVID WEINER and WILLIAM R. CULLEN,
Members of the Planning Board of
the City of Salem, THE CITY OF SALEM,
and J. HILARY ROCKETT, Trustee of
the Pickering Wharf Realty Trust,
Defendants
COUNT I : JUDICIAL REVIEW UNDER G.L. CH. 40A, SEC. 17
1. The first sentence in paragraph 1 of the complaint is admitted;
the second sentence is denied.
2 . The allegations in paragraph 2 of the complaint are admitted,
except for so much thereof as alleges that " (a) copy of the
Decision is attached hereto and marked `A,"' which is denied.
3 . The allegations in paragraph 3 of the complaint that state,
" (t) he complaint also seeks a declaration of rights under G. L. c.
231A with respect to the actions of the Planning Board and the
City of Salem" are admitted; any and all remaining allegations in
1
paragraph 3 are denied.
4 . The defendants are without sufficient knowledge to admit or
deny the allegations in paragraph 4 of the complaint and call upon
the plaintiffs to prove the same.
5 . The defendants are without sufficient knowledge to admit or
deny the allegations in paragraph 5 of the complaint and call upon
the plaintiffs to prove the same.
6. Admitted.
7 . Admitted.
8 . Admitted.
9 . The defendants neither admit, nor deny, the allegations in
paragraph 9 of the complaint, but state that the statute
referenced therein speaks for itself; moreover, the defendants say
that the excerpted portions of the statute may not properly be
read and interpreted in isolation from other, pertinent portions
of the statute and/or from the provisions of other relevant
statutes and laws.
10 . The defendants neither admit, nor deny, the allegations in
paragraph 10 of the complaint, but state that the ordinance
referenced therein speaks for itself; moreover, the defendants say
that the excerpted portions p p of the ordinance may not properly be
read and interpreted in isolation from other, pertinent portions
of the ordinance and/or from the provisions of other relevant
ordinances, statutes and laws .
11 . Admitted, that, (o) n September 9 , 1997, the Planning Board
adopted a "Master Plan Update . . . as for p p o the remaining
allegations in paragraph 11 of the complaint, the defendants
neither admit, nor deny, the same, but instead say that that the
2
excerpted portion of the Master Plan Update may not properly be
read and interpreted in isolation from other, pertinent portions
of the Plan and/or from the provisions of other relevant
ordinances, statutes and laws .
12 . Admitted, that, " (o) n August 14 , 1997 , the City of Salem
issued a request for a proposal for a consultant to prepare a
hotel feasibility study," and that the passage therefrom quoted in
paragraph 12 of the complaint does appear in the request for
feasibility study; any and all remaining allegations in paragraph
are denied; and further answering, the defendants say that that
the quoted excerpt from the request may not properly be read and
interpreted in isolation from other, pertinent portions of the
request and/or from the provisions of other relevant ordinances,
statutes and laws.
13 . The first sentence in paragraph 13 of the complaint is
admitted; the balance of that paragraph is denied.
14 . The first sentence in paragraph 14 of the complaint is
admitted; the balance of that paragraph is denied.
15 . The first sentence in paragraph 15 of the complaint is
admitted; the balance of that paragraph is denied.
16. Admitted, that the passages quoted from the Landauer Report in
paragraph 16 of the complaint do appear in that report; however,
the defendants say that that the quoted excerpts from the Report
may not properly be read and interpreted in isolation from other,
pertinent portions of the Report and/or from the provisions of
other relevant ordinances, statutes and laws .
17 . Admitted, that, " (o) n May 27 , 1999, the Defendant Pickering
Wharf filed a letter purporting to be an application with the
Defendant Planning Board for a `Site Plan Review and Wetlands and
3
Flood Hazard District Special Permit,'" and that the excerpt
therefrom quoted in paragraph 17 of the complaint does appear in
the application; the balance of paragraph 17 is denied; and
further answering, the defendants say that the quoted excerpts
from the application may not properly be read and interpreted in
isolation from other, pertinent portions of the application and/or
from the provisions of other relevant documents, ordinances,
statutes and laws .
18 . Admitted.
19 . The first sentence in paragraph 19 of the complaint is
admitted; the balance of paragraph 19 is denied; and any express
or implied allegation that the "objections" contained in the
referenced letter were valid is also denied.
20 . Admitted, that, " (o) n July 28, 1999, the Trust appeared
through counsel before the Planning Board at its hearing and
presented documents, testimony and argument in opposition to the
application," and that counsel for the Trust made the arguments
set out in the balance of paragraph 20 of the complaint; any
express or implied allegation that counsel' s arguments were valid
and supported by the evidence before the Board is denied.
21 . Admitted, that, " (o) n July 28, 1999, the Trust presented to
the Planning Board a copy of a report dated January 14 , 1997 ,
previously furnished to the Board, from Pinnacle Advisory Group
. . . entitled: `Market Demand Study for a Proposed Hotel to be
Located in Salem, Massachusetts,'" and that the language quoted
from the report in paragraph 21 of the complaint does appear in
the report; any and all remaining allegations in paragraph 21 are
denied; and further answering, the defendants say that the quoted
excerpts from the report may not properly be read and interpreted
in isolation from other, pertinent portions of the report and/or
4
r
from the provisions of other relevant documents, ordinances,
statutes and laws .
22 . Admitted, that, " (o) n July 28, 1999, a principal of Pinnacle
Advisory Group presented testimony to the Board" ; the balance of
the allegations in paragraph 22 of the complaint are conclusory,
seek to characterize the testimony, and are denied; and any
express or implied allegation that the testimony was valid and
supported by the evidence before the Board is also denied.
23 . Admitted, that, " the City has required the Pickering Wharf
Trust to develop a hotel of `not less than 70 and not more than
140 rooms' as part of a Tax Increment Financing program with
respect to which the City entered a Memorandum of Understanding on
April 8, 1998" ; any and all remaining allegations in paragraph 23
of the complaint are denied.
24. Denied.
25. Denied.
26. Denied.
COUNT TWO: DUE PROCESS
27 . Defendants incorporate by reference and here re-allege their
respective responses to paragraphs 1-26, supra .
28. Denied.
29.
AFFIRMATIVE DEFENSES
Further answering the complaint, the defendants say as follows :
5
I
1 . The defendants saythat the decisions ons comP lained of were made
lawfully, properly and wholly within the scope of their
administrative discretion.
2 . The defendants plead failure to exhaust administrative
remedies.
3. The defendants plead insufficiency of process .
4 . The defendants plead insufficiency of service of process .
5 . The defendants specifically deny the genuineness of any
ur orted signatures upon documents which th
P P 4 P e plaintiffs rely on
in this case.
6. The defendants plead laches .
7 . The defendants state that the present action against them is
time-barred by operation of the applicable statute ( s ) of
limitations .
8 . The defendants plead lack of subject matter jurisdiction.
9. The defendants plead lack of personal jurisdiction.
10 . The defendants plead improper venue.
11 . The defendants say that the plaintiffs lack standing to bring
the present complaint and/or the various counts thereof, for the
reason - among others - that they do not qualify as "aggrieved
persons" under the applicable laws .
12 . The defendants plead unclean hands on the part of the
plaintiffs .
13 . The defendants plead estoppel on the part of the plaintiffs .
6
14 . The defendants state that the plaintiffs have failed to
satisfy the procedural prerequisites to bringing this action.
15. The defendants say that for all of the reasons aforementioned,
the complaint fails to state a claim upon which relief may be
granted.
WHEREFORE, the defendants demand the dismissal of the complaint,
with costs taxed to the plaintiffs .
THE CITY OF SALEM, et al,
By Their City Solicitor,
William J. Lundregan, Esq.
81 Washington Street
Suite 37
Salem, MA 01970
Tel: 978 . 741 . 3888
Certificate of Service
I, William J. Lundregan, hereby certify that on
1999 I mailed, postage pre-paid, a copy of the foregoing document
to: Morris M. Goldings, Esq. , MAHONEY, HAWKES & GOLDINGS, LLP, The
Heritage on the Garden, 75 Park Plaza, Boston, MA 02116, and to
J. Hilary Rockett, 190 Pleasant Street, Marblehead, MA 01945.
Signed under penalty of perjury.
William J. Lundregan, Esq.
7
j
T
COMMONWEALTH OF MASSACHUSETTS 9~CEJ,, ED
APPEALS COURT 7^;i ,. 6 r6
No. 00-P-862
ESSEX COUNTY
SA!EM
DOROTHY HARRINGTON, AS SHE IS
TRUSTEE OF THE THREE CORNERS
REALTY TRUST
Plaintiff-Appellant
V.
WALTER B. POWER, III, AS HE IS CHAIRMAN OF
THE PLANNING BOARD OF THE CITY OF SALEM, ET ALS.
Defendants-Appellees
ON APPEAL FROM A JUDGMENT OF THE LAND COURT
BRIEF OF DEFENDANTS-APPELLEES
William J. Lundregan, BBO# 307580 Paul L. Feldman, BBO# 162205
81 Washington Street Judith Ashton, BBO# 022900
Suite 37 Davis, Malm & D'Agostine, P.C:
Salem, MA 01970 One Boston Place
(978) 741-3888 Boston, MA 02108
Attorney for Walter B. (617) 367-2500
Power, III, et als . and Attorneys for J. Hilary Rockett,
the City of Salem as he is trustee of Pickering
Wharf Realty Trust
1
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . .
STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 4
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . 6
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 8
I . THE LAND COURT HAD JURISDICTION PURSUANT TO
G.L. c. 40A, § 17 TO REVIEW THE PLANNING
BOARD'S DECISION APPROVING PICKERING' S SITE
PLAN, WHEN, IN DOING SO, IT ACTED AS A
SPECIAL PERMIT GRANTING AUTHORITY, IT EVIDENCED
ITS INTENT TO SO ACT AND IT USED G.L. c. 40A,
§ 9 SPECIAL PERMIT PROCEDURES. . . . . . . . . 8
A. THE CASE LAW . . . . . . . . . . . . . 8
B. THE PLANNING BOARD IN THIS CASE ACTED WITHOUT
QUESTION AS A SPECIAL PERMIT GRANTING
AUTHORITY . . . . . . . . . . . . . . . . . . 11
1 . The Planning Board used all pertinent
special permit procedures . . . . . . . 11
2 . The Planning Board otherwise evidenced
the clear intent of the City that,
in performing site plan review; the
Planning Board acts as special
permit granting authority . . . . . . . 12
3 . Public policy strongly supports a
determination that the Land Court had
jurisdiction in this case . . . . . . . 15
II. THE COURT SHOULD DISMISS THE COMPLAINT
ON THE MERITS BECAUSE A COMPLAINT UNDER
G.L. c. 40A, § 17 ALLEGING ONLY POTENTIAL
ECONOMIC DAMAGE TO AN OWNER OF PROPERTY
BY VIRTUE OF THE NUMBER OF HOTEL ROOMS
CONTEMPLATED BY THE APPLICANT FOR SITE
PLAN REVIEW FAILS TO STATE A CLAIM UPON
WHICH RELIEF CAN BE GRANTED AND THE
CLAIMANT HAS NO STANDING. . . . . . . . . . . 16
III . THE CITY OF SALEM GRANTED HARRINGTON
SUBSTANTIALLY MORE PROCESS THAN SHE WAS DUE 20
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 23
STATUTORY ADDENDUM . . . . . . . . . . . . . . . . . . SA 1
TABLE OF AUTHORITIES
CASES
Advanced Dev. Concepts Inc v Blackstone,
33 Mass . App. Ct . 228 (1992) . . . . . . . . . . . . . 15
Attorney General v Goldberg, 330 Mass . 291 (1953) . . . 14
Avery v. Steele, 414 Mass . 450 (1993) . . . . . . . . . . 23
Blanchard v. Pellegrini, 1995 WL 808781
(Mass . Super. 1995) . . . . . . . . . . . . . . . . . . . 19
Bowen v. Board of Appeals of Franklin, 36 Mass. App.
Ct. 954 (1994) . . . . . . . . . . . . . . . . . . . . . 22
Burnham v. Board of Appeals of Gloucester,
333 Mass . 114 (1955) . . . . . . . . . . . . . . . . . . 13
Circle Lounge & Grille Inc v Board of Appeals
of Boston, 324 Mass . 427 (1949) . . . . . . . . . . . 19, 22
Doe v. Cross Point Realty Trust, 4 Land Ct.
Rptr. 279 (Land Court 1996) . . . . . . . . . . . . . . . 11
Doyon v. Travelers Indemnity Co. , 22 Mass.
App. Ct. 336 (1986) . . . . . . . . . . . . . . . . . . . 17
Dufault v. Millennium Power Partners L.P. ,
49 Mass. App. Ct. 137, 142 (2000) . . . . . . . . . . 10, 15
Geryk v Zoning Appeals Board of Easthampton,
8 Mass. App. Ct. 683 (1979) . . . . . . . . . . . . . . . 23
Green v. Board of Appeals, 404 Mass.
571 (1989) . . . . . . . . . . . . . . . . . . . . . . . 19
Liberty Commons Realty Trust v Gurge, 6 Mass .
L. Rptr. 166 (Super. 1996) . . . . . . . . . . . . . . . 11
Martin v. Rockland, 1 Mass. App.
Ct. 167 (1973) . . . . . . . . . . . . . . . . . . . . . 15
Murray v. Board of Appeals of Barnstable,
22 Mass . App. Ct. 473 (1986) . . . . . . . . . . . . . . 13
National Amusements Inc. v. Boston,
29 Mass. App. Ct . 305 (1990) . . . . . . . . . . . . . . 21
Osberg v. Planning Board of Sturbridge,
44 Mass . App. Ct . 56 (1997) . . . . . . . . . . . . . 9, 15
Panagakos V. Fleurent, 4 Mass . L. Rptr. 303
(Super. 1995) . . . . . . . . . . . . . . . . . . . . . . 13
Prudential Ins . Co v Board of Appeals of Westwood,
23 Mass. App. Ct. 278 (1986) . . . . . . . . . . . . 8, 12
Quincy v. Planning Board of Tewksbury,
39 Mass. App. Ct. 17 (1995) . . . . . . . . . 6, 8-11, 15
Rando v. Town of North Attleborough,
44 Mass. App. Ct. 603 (1998) . . . . . . . . . . . . . . 21
Slater v. Board of Appeals of Brookline,
350 Mass. 70 (1966) . . . . . . . . . . . . . . . . . . . 23
Southgate at Shrewsbury Inc v Shea,
1996 WL 499102 (Mass . Super. 1996) . . . . . . . . . . . 19
Spruce Pond Village Ass'n Inc v LaLiberte,
7 Mass. L. Rptr. 395 (Super. 1997) . . . . . . 10, 11
St . Botolph Citizens Committee Inc v Boston
Redevelopment Authority, 429 Mass . 1 (1999) . . . . . . . 9
Verc, Inc. v. Putziger, 1993 WL 818769
(Mass. Super. 1993) . . . . . . . . . . . . . . . . . . . 19
Waltham Motor Inn Inc. v. LaCava,
3 Mass. App. Ct. 210 (1975) . . . . . . . . . . . . . 7, 19
STATUTES AND COURT RULES
G.L. c. 40A . . . . . . . . . . . . . . . . . . . . . . . 18
G.L. c. 40A, § 9 . . . . . . . . . . . . . . . . . 1, 6, 12
G.L. c. 40A, § 17 . . . . . 1, 2, 4, 6, 7, 8, 13 , 16, 18, 20
G.L. c. 41, § 81D . . . . . . . . . . . . . . . . . . . . 21
G.L. c. 91 . . . . . . . . . . . . . . . . . . . . . . . 16
G.L. c. 211, § 10 . . . . . . . . . . . . . . . . . . . 2, 7
Mass. R. Civ. P. 12 (b) (1) . . . . . . . . . . . 1, 3 , 16, 18
Mass . R. Civ. P. 12 (b) (6) . . . . . . . . . . . 1, 3 , 16, 18
ii
TREATISES
1 M.R. Healy, Massachusetts Zoning Manual § 8 .13,
p. 8-35 (1999) . . . . . . . . . . . . . . . . . . . . . 15
iii
STATEMENT OF THE ISSUES
I . Did the Land Court have jurisdiction pursuant to G.L. c.
40A, § 17 to review a decision of the City of Salem
Planning Board approving a site plan, when in doing so
the Planning Board was acting as a special permit
granting authority, used G.L. c. 40A, § 9 special permit
procedures as required under the City's Zoning By-Law,
and the Planning Board evidenced clearly its intent to
issue a special permit?
II . Must the Complaint under G.L. c. 40A, § 17, which
alleges only potential competitive economic injury by
virtue of the number of hotel rooms to be added in the
City of Salem by the site plan applicant's project, be
dismissed under Mass . R. Civ. P. 12 (b) (1) because
appellant has no standing and under Mass. R. Civ. P.
12 (b) (6) because the Complaint fails to state a claim
upon which relief can be granted?
III. Did the City of Salem Planning Board deprive appellant
of due process when appellant' s only claim of
aggrievement before the Planning Board was potential
competitive economic injury and the Planning Board held
three days of public hearings, received appellant's
written opposition to the site plan special permit
application, allowed appellant to appear through counsel
opposing the application, and issued a written decision
approving the application subject to eighteen detailed
conditions? Is appellant' s due process claim before
this Court frivolous, thereby entitling appellees to
double costs under G.L. c. 211, § 10?
STATEMENT OF THE CASE
Plaintiff-appellant, Dorothy L. Harrington
("Harrington") , trustee of the Three Corners Realty Trust
("Three Corners") , which owns the 89 room Hawthorne Hotel (the
"Hotel") , filed a Complaint in the Land Court on August 17,
1999 for judicial review pursuant to G.L. c. 40A, § 17 of a
decision (the "Decision") of the City of Salem Planning Board
(the "Planning Board") granting unanimous approval to
Pickering Wharf Realty Trust ("Pickering") of its site plan
special permit application. (App. 5) . Pickering sought such
approval in connection with a project on Pickering Wharf in
the City of Salem to construct a five-story hotel/retail
building and single-story bank building. (App. 21) . Three
Corners is not an abutter; its Hotel is about 800 feet away
from Pickering' s proposal project .'
The basis of Harrington' s Complaint is that the new
hotel at Pickering Wharf would be competition to the Hawthorne
Hotel and might, therefore, cause a loss of revenue to the
Hawthorne Hotel . (App. 5) . Harrington' s Complaint actually
i
The owners of abutting property were originally
plaintiffs in this action as well . on January 24, 2000, the
parties filed a Stipulation of Dismissal with prejudice of the
abutters' claims . (App. 338) .
2
seeks to create an anti-trust business situation for the Hotel
by stymieing competition, which is illegal . (App. 6, para.
4) .
The only injury alleged by Harrington in her Complaint
is economic damage to the Hotel property "by construction of
Pickering' s project by virtue of the excess number of [hotel]
rooms in the Salem market over the demand therefor" . (App.
13, para. 22) . Harrington has also claimed that the Planning
Board violated her due process rights because, according to
her, the Planning Board did not analyze "land use planning
considerations including economic factors relating to the
nature of adjoining uses ." (App. 14, para. 28) . This claim
apparently relates only to the fact that the Planning Board's
Decision does not mention the possible economic effects the
additional Pickering hotel rooms would have on the Hotel .
The defendants below, the Planning Board, the City and
Pickering, filed motions to dismiss under Mass. R. Civ. P.
12 (b) (1) and (6) . (App. 205, 20B) . At the hearing on the
motions, the Court (Lombardi, J. ) raised the question of
whether it had subject matter jurisdiction to review the site
plan approval . (Harrington Brief, Add. 3) After the hearing,
the parties submitted memoranda of law. All parties argued
that the Land Court had jurisdiction over the claims made in
the Complaint.
On March 7, 2000, the Land Court dismissed the case,
ruling that it did not have subject matter jurisdiction under
3
G.L. C . 40A, § 17. (Id. , Add. 1) . The Court did not examine
the merits of Harrington' s claim.' On March 9, 2000,
Harrington filed a Notice of Appeal and this appeal followed.
(App. 367) .
STATEMENT OF THE FACTS
In an arrogant and cynical attempt to bar a potential
competitor from pursuing a valuable business opportunity,
Harrington, Trustee of Three Corners, the owner of the Hotel,
has mounted a meritless challenge to the City' s Planning
Board' s unanimous decision to approve a potential competitor' s
application for the construction of a hotel/retail building
and a bank building in the City of Salem.
On May 27, 1999, Pickering made such application under
Sections 7-16 and 7-18 of the City of Salem's zoning ordinance
(the "By-Law") for "Site Plan Review Wetlands and Flood Hazard
District Special Permits." (App. 21) (emphasis added) . While
Pickering' s application was not made on the City' s application
form, the City's form indicates that an application for
approval of a site plan is for a "Site Plan Review Special
Permit" . (App. 23) . (emphasis added) . On page two of the
application, the Planning Board states:
2
The Land Court did dismiss the Complaint, on the merits,
insofar as it alleged that a Wetlands and Flood Hazard
District Special Permit was unlawfully issued to Pickering.
The Court held that Three Corners failed to demonstrate that
that permit would impact any interest cognizable under the
Zoning By-Law or otherwise protected by the zoning laws .
(Harrington Brief, Add. 6) . Harrington has not appealed this
ruling.
4
The Planning Board shall notify the applicant in
writing of its decision on the special permit . The
decision shall document the proposed development or
use and the grounds for granting or refusing the
special permit .
(App. 24) (emphasis added) .
The proposed project involves demolition of commercial
buildings and the redevelopment of a portion of the Pickering
Wharf complex in the City of Salem by construction of a five
story hotel/retail building and a single story bank building.
(App. 21) . The property on which .the proposed project is
located is in the Central Business "B-5" District under the
By-Law in which such uses as those proposed are allowed as of
right. (Harrington Brief, Add. 4, para. 8) .
A public hearing was held by the Planning Board on
Pickering' s application for three days in June and July 1999.
(Id. , para. 9) . On July 1, 1999, a representative of
Harrington filed written objections to the site plan citing
solely Three Corners' competitive interest and the applicant' s
possible financial jeopardy. (App. 25-28) . During the last
day of hearings, a representative of Harrington appeared
before the Planning Board and made the same arguments.
(Harrington Brief, Add. 5, para. 12) . The written objections
state that Three Corners' concern is "not to have the market
become overbuilt . . . . " (App. 28) . Three Corners is concerned
about possible "financial jeopardy" to the Hotel' s owner
(Three Corners) because of the number of hotel rooms planned
in the Pickering project. (Id. ) .
5
After its hearings, the Planning Board rendered a
detailed, four-page, single spaced decision on July 29, 1999.
(App. 17-20) . The Board approved the site plan application
unanimously, subject to detailed conditions set forth in the
Decision concerning landscaping, signage, lighting and
traffic, and the like. (Id. ) . The Decision itself indicates
that a "special permit" was granted and refers aggrieved
persons to the special permit 20-day appeal procedures . (App.
20) . See G.L. c. 40A, § 9.
SUMMARY OF THE ARGUMENT
2 . This Court and the Supreme Judicial Court in a
series of cases beginning with Quincy v. Planning Board of
Tewskburv, 39 Mass. App. Ct. 17 (1995) have ruled that where
the municipality uses special permit procedures, appeals from
decisions on site plan applications may be filed under G.L. C.
40A, § 17. Here, in approving Pickering' s application, the
Planning Board used all pertinent special permit procedures as
set forth in G.L. c. 40A, § 9, including holding a public
hearing and voting by a two-thirds super-majority. Moreover,
the Planning Board's intent to act as a special permit
granting authority was further evidenced by its application
form and its Decision. Finally, public policy favoring
allowing distinct approaches to site plan review by
municipalities in the Commonwealth and reinforcing the bright
line test established in Quincy strongly supports a ruling
6
that the Land Court had jurisdiction in this case. (Pages 8
to 16) .
II . The Court should dismiss this case on the merits
because Harrington alleges nothing more than competitive
economic injury in her Complaint . Such an allegation is not
sufficient to grant her standing as a "person aggrieved" under
G.L. c. 40A, § 17 nor does a complaint containing only such a
claim state a claim upon which relief can be granted. The
anticipated effects of business competition are simply not
viable interests deserving of zoning protection. Waltham
Motor Inn. Inc. v. LaCava, 3 Mass. App. Ct. 210, 217 (1975) .
(Pages 16 to 20) .
III. The City of Salem granted Harrington substantially
more process than she was due. She was allowed to file a
written objection to Pickering' s application and to speak
through her representative at the three-day public hearing
before the Planning Board. The fact that the Decision does
not mention Three Corners' potential competitive injury is not
a violation of due process at all . Had the Planning Board
based its Decision on this factor the Decision would have been
arbitrary and capricious because it would have been based on
a legally untenable ground. Thus, Harrington's appeal on the
due process issue is without basis in law and defendants -
appellees should be awarded double costs on this aspect of the
appeal pursuant to G.L. c. 211, § 10 . (Pages 20 to 23) .
7
ARGUMENT
I. THE LAND COURT HAD JURISDICTION PURSUANT TO G.L. c. 40A,
§ 17 TO REVIEW THE PLANNING BOARD'S DECISION APPROVING
PICKERING'S SITE PLAN, WHEN, IN DOING SO, IT ACTED AS A
SPECIAL PERMIT GRANTING AUTHORITY, IT EVIDENCED ITS
INTENT TO SO ACT AND IT USED G.L. c. 40A, § 9 SPECIAL
PERMIT PROCEDURES.
A. THE CASE LAW.
G.L. c. 40A, § 17 provides that a person aggrieved by a
decision of a local special permit granting authority has a
right of direct appeal to, inter alia, the Land Court. This
Court and the Supreme Judicial Court have stated in a series
of cases that an aggrieved party may bring a G.L. c. 40A, § 17
appeal of a decision on site plan review when the local board
conducts its site plan review using special permit procedures.
This principle was first articulated by this Court in
1995 in Ouincy v. Planning Board of Tewksbury, 39 Mass. App.
Ct . 17. In that case, the town's site plan by-law articulated
special permit procedures. The unanimous Court held that,
while the substantive criteria the town was to apply had to be
consistent with the tenets of Prudential Ins . Co. v. Board of
Appeals of Westwood, 23 Mass. App. Ct. 278 (1986) ', a site
plan special permit application under the circumstances "would
still lead to the issuance of a special permit." 39 Mass.
App. Ct. at 22 .
3
The town may not deny the use, but may impose reasonable
terms and conditions on the use. Id.
8
This Court ruled that :
[d) enial of a site plan application [and presumably
appeal by a person aggrieved by approving an
application] constitutes a decision by the special
permit granting authority, which is directly
appealable under G.L. c. 40A, § 17 .
Id. Therefore, " [t] he Land Court had jurisdiction to hear the
matter" . Id.
This principle articulated in Quinc has been reinforced
favorably on numerous occasions since the decision was issued.
In 1997, in Osberg v. Planning Board of Sturbridge, 44 Mass.
App. Ct . 56 (1997) , this Court held, citing Ouinc , that
whether administrative remedies must be exhausted in site plan
review depends on the "procedural framework" of the site plan
by-law at issue. Id. at 59, n. 7. The Town of Sturbridge,
unlike Tewksbury and Salem, did not purport to issue site plan
special permits, the parties did not contend that the
application was for approval of a special permit and therefore
special permit procedures did not apply in the Osberg case.
Id. at 59-60 .
Likewise, in St . Botolph Citizens Committee Inc v
Boston Redevelopment Authority, 429 Mass. 1 (1999) , a City of
Boston adequacy determination procedure, akin to non-special
permit site plan review, did not give rise to direct appeal,
but instead an aggrieved person' s right to appeal arose only
when the building permit had been issued or denied. As this
Court did in Osberg, the Supreme Judicial Court in St . Botolph
cited Ouinc favorably.
9
The holding in Quinc was reinforced once again by this
Court just a few months ago in Dufault v. Millennium .Power
Partners, L.P. , 49 Mass . App. Ct. 137, 142, n. 13 (2000) .4
Under the settled law set forth above, the court below
incorrectly concluded that the Salem By-Law requirement that
special permit procedures be conformed to in site plan review
"does not result in a site plan review decision of the
planning board being appealable as an action of a special
permit granting authority." (App. 363) . The court below thus
ignored the explicit holding in Quing In fact, the court
below failed to mention Ouincy at all in its decision. It
failed further to apply the standard set forth in Osberg that
the determinative factor to be used in deciding whether site
plan approval is directly appealable is exactly what the Land
Court stated was not determinative, the by-law's "procedural
framework" .
Moreover, the Land Court cases that the court below
cites to support its position actually strongly support the
settled law set forth in Ouinc and its progeny. In Spruce
Pond Village Ass'n, Inc v LaLiberte, 7 Mass. L. Rptr. 395,
4
The actual holding in Dufault is inapposite here as, in
Dufault, a direct appeal right was properly denied of a site
plan approval when the Planning Board was not acting as a
special permit granting authority. For example, The Town of
Charlton Zoning By-Law in effect in 1997, which was at issue
in Dufault, does not provide for a mandatory public hearing
before approval, as required by G.L. c. 40A, § 9 for special
permits . That by-law was included in the Appendix filed with
this Court in Dufault .
10
398, n. 5 (Super. 1997) , now Supreme Judicial Court Justice
Cowin stated, citing Ouinc , that under G.L. c. 40A, § 17, "a
person may directly appeal a planning board' s approval of a
site plan to the Superior Court in those situations where the
planning board has acted in the capacity of a `special permit
granting authority' ." Because the planning board in Spruce
did not purport to do so, there was no right to direct appeal .
This was also the case in Doe v. Cross Point Realty Trust, 4
Land Ct. Rptr. 279 (Land Court 1996) . Likewise, in Liberty
Commons Realty Trust v Gurge, 6 Massa L. Rptr. 166, 167
(Super. 1996) , the court recognized the Quincy holding that
direct appeal to the Land and Superior Courts is allowed when
the planning board "has acted in the capacity of a special
permit granting authority' ."
B. THE PLANNING BOARD IN THIS CASE ACTED WITHOUT
QUESTION AS A SPECIAL PERMIT GRANTING AUTHORITY.
All of the extant evidence supports conclusively a
ruling that the Planning Board here, in issuing the site plan
special permit, was acting as a special permit granting
authority. That evidence is as follows.
1. The Planning Board used all pertinent special
permit procedures.
Just as in the Ouincy case, the Salem By-Law "contains
no separate provision that calls for more limited site plan
review of uses available as of right not requiring a special
permit ." 39 Mass. App. Ct . at 21 . The By-Law has only one
site plan review provision and only one site plan review
11
procedure. (App. 271-273) . This establishes a clear
intention by the City to process those applications in which
review is limited by Prudential Ins . Co. v Board of Appeals
of Westwood the same way it processes applications in which it
has discretionary power to deny the use.
Additionally, the By-Law specifically adopts all
pertinent G.L. c. 40A, 9 9 special permit procedures
including:
• a public hearing is to be held within 65 days after
filing of the application, "in accordance with
Massachusetts General Laws, Chapter 40A" (App.
273) ;
• failure to take action within 90 days is deemed a
grant of approval (Id. ) ;
• decisions must be made by a two-thirds vote of the
seven member board (Id.) ; and
• approval lapses if construction has not commenced
within two years (Id. ) .
2. The Planning Board otherwise evidenced the clear
intent of the City that in performing site plan
review, the Planning Board acts as a special permit
granting authority.
In addition to the clear intent set out in the By-Law
itself, the City, through the Planning Board, has expressed
such an intent in other essential ways. For example:
• The Planning Board's site plan application form
provides clearly that it is an application for a
12
"Site Plan Review Special Permit" . (App. 23)
(emphasis added) .
• That form specifically provides that the decision
the Planning Board is to make is a "decision on the
special permit" and that it will document the
reasons for granting or denying the "special
Permit" . (App. 24) (emphasis added) .
• The Decision states that the Board has granted a
"Special Permit" and that the G.L. c. 40A, § 17
appeal period of 20 days is applicable. (App. 20)
(emphasis added) .
• Harrington's Complaint alleges that the Board in
making its decision constituted "a special permit
granting authority" . (App. 5, para. 1) . The City,
in its answer, admits this allegation. (App. 198) .
It is well settled that zoning is a "local matter and
much weight must be given to the judgment of the local
legislative body. . . ." Burnham v. Board of Appeals of
Gloucester, 333 Mass . 114, 117 (1955) . The actions and
expressed intentions of the municipality and of the applicant
are indicative of whether a special permit has been issued.
Panagakos v. Fleurent, 4 Mass. L. Rptr. 303 (Super. 1995) ,
citing Murray v. Board of Appeals of Barnstable, 22 Mass . App.
Ct. 473, 479 (1986) . Here, the City, through the By-Law and
the actions of the Planning Board, clearly indicated an intent
to issue a site plan special permit . Pickering also expressed
13
i
that intent, as it applied for "Site Plan Review and Wetlands
and Flood Hazard District Special Permits" . (App. 21)
(emphasis added) .
A review of the Tewksbury Site Plan Review By-Law at
issue in Ouinc establishes that all of the procedures used
there are set forth as well in Salem's By-Law. That the
Planning Board here does not call itself by the label "special
permit granting authority" when it considers site plan special
permit applications should not give this Court pause.
Intentions expressed in the By-Law and elsewhere count for
significantly more than labels. See Attorney General v.
Goldberg, 330 Mass. 291, 293 (1953) ("plain words in the text
of a statute are not to be cut down by its title") . In fact,
the Board of Appeals, which has jurisdiction under the Salem
By-Law of many types of special permit applications is not
labeled as a special permit granting authority either. (App.
280-281) . Moreover, the Salem By-Law clearly contemplates
that the Planning Board will issue special permits, because
when it delineates the duties of the Board of Appeals it
states explicitly that the Board of Appeals has the power and
duty:
to hear and decide applications for special permits
except such applications for special permits
where the power to grant is vested in the planning
board by this ordinance.
(App. 280) .
14
3 . Public policy strongly supports a determination
that the Land Court had jurisdiction in this case.
Three important public policy considerations strongly
support a determination that the Land Court had jurisdiction
in this case.
First and foremost, for this Court to so determine would
reinforce the strong public policy which holds that zoning is
a local matter, Martin v. Rockland, 1 Mass. App. Ct. 167, 169
(1973) , and that the intentions of Massachusetts'
municipalities in enacting and implementing zoning ordinances
should be effectuated to the full extent allowed by law.
Advanced Dev. Concepts Inc v Blackstone, 33 Mass. App. Ct.
228 (1992) .
Second, to so rule would continue and reinforce this
Court' s and the Supreme Judicial Court' s acceptance of
distinct approaches taken by different municipalities to the
issue of site plan review. See 1 M.R. Healy, Massachusetts
Zoning Manual § 8.13, p. 8-35 (1999) . The Court has
manifested this acceptance by countenancing the differing
approaches taken by the Towns of Sturbridge (Osberg) ,
Tewksbury (Quincy) , and Charlton (Dufault) .
Third, a ruling in favor of direct appeal here would
continue the bright line test established in Quincy and Osberg
which holds that the key to how, when and where to appeal site
plan grants and denials is whether special permit procedures
are e used in the applicable by-law. By affirming this bright
line test, the Court will ensure that applicants aggrieved by
15
l
denials and persons aggrieved by approvals continue to have
certainty as to how, when and where to appeal. If special
permit procedures are used by the municipality, appeal is to
the Superior or Land Court under G.L. c. 40A, 9 17. If not,
appeal is to the Board of Appeals after a building permit has
been issued.
II. THE COURT SHOULD DISMISS THE COMPLAINT ON THE MERITS
BECAUSE A COMPLAINT UNDER G.L. c. 40A, S 17 ALLEGING
ONLY POTENTIAL ECONOMIC DAMAGE TO AN OWNER OF PROPERTY
BY VIRTUE OF THE NUMBER OF HOTEL ROOMS CONTEMPLATED BY
THE APPLICANT FOR SITE PLAN REVIEW FAILS TO STATE A
CLAIM UPON WHICH RELIEF CAN BE GRANTED AND THE CLAIMANT
HAS NO STANDING.
Although the Land Court declined to address the
substantive issues relating to Pickering's motion to dismiss,
Pickering urges this Court to do so both for reasons of
justice and judicial economy. Pickering will demonstrate
below that based on over a half-century of settled law
Harrington' s Complaint fails even the most lenient tests under
Mass. R. Civ. P. 12 (b) (1) and 12 (b) (6) and that on the merits
Pickering is entitled to a grant of its motion to dismiss .
Not only does judicial economy argue for a determination by
this Court on the substantive merits of Harrington' s claim,
but justice requires it.
J. Hilary Rockett, as Trustee of Pickering, has stated
in his affidavit filed with this Court that, were this appeal
not pending, with the issuance of a G.L. c. 91 license
Pickering would have begun construction on this project on
approximately July 1, 2000 . Affidavit of J. Hilary Rockett,
16
Trustee of Pickering Wharf Realty Trust, para. 4 . That
Affidavit was filed with this Court in support of his motion
to expedite this appeal. Construction would have been
completed by April, 2001 in time to open the new hotel for the
2001 spring season. Id. Because of its location, the hotel
will be a seasonal market hotel with the bulk of the guests
staying in the spring, summer and fall months. Id.
Construction cannot begin this construction season
because of this frivolous lawsuit. The delay will result in
serious financial consequences to Pickering, including
substantial loss of rental income, onerous financing carrying
costs and lost income to the project itself. Id. , para. S .
If this Court rules that the Land Court had subject
matter jurisdiction and does not decide the case on the
merits, the case will have to be remanded to the Land Court,
Harrington will inevitably lose and she will file yet another
appeal with this Court. This piecemeal process will delay the
project indefinitely, resulting in even greater financial harm
to Pickering. Pickering urges the Court not to allow this to
occur.
It is for these reasons and because of the clarity of
the substantive law in this area that Pickering urges the
Court to decide this case on the merits. Moreover, the issue
here is purely a legal one and thus extensive further
litigation is not required. See, e.4. , Doyon v. Travelers
Indemnity CO. , 22 Mass. App. Ct . 336, 339 (1986) .
17
Turning to the well-pleaded allegations in the
Complaint, that Complaint contains nothing more than a claim
that the property of Three Corners, the Hotel, will be caused
"serious diminution" in value (App. 12, para. 20) "by virtue
of the excess number of rooms in the Salem market over the
demand therefor" (App. 13, para. 22) . There is no other
allegation of aggrievement by Harrington
other than this
diminished value of the Hotel due to the competition from the
proposed new hotel because of the "excess number of rooms" in
the Salem market. The Complaint makes no other claim and no
other claim was made by Harrington before the Planning Board.
These allegations do not even begin to state a claim
upon which relief can be granted and, as a matter of law,
based on these claims, Harrington has no standing as a person
aggrieved under G.L. c. 40A. As will be shown below,
Harrington has no standing under Mass. R. Civ. P. 12 (b) (1)
because she cannot establish she is a "person aggrieved" under
G. L. c. 40A, § 17 . Her allegation of competitive economic
injury is not sufficient as a matter of law to assert
aggrievement. Moreover, her Complaint fails to state a claim
under Mass. R. Civ. P. 12 (b) (6) because claims of competitive
economic injury are not cognizable under G.L. c. 40A, § 17 .
The anticipated effects of business competition are not viable
interests receiving protection under the zoning laws.
The cases are legion which hold that claims of loss of
business competition are not cognizable under the zoning laws
18
l
and those alleging such claims are not "persons aggrieved" .
As early as 1949, the Supreme Judicial Court held that "injury
from business competition has generally considered damnum
absque injuria." Circle Lounge & Grille. Inc v Board of
Appeals, 324 Mass. 427, 429 (1949) . "It was no part of the
purpose of the zoning regulations to protect business from
competition" . Id at 429-430 . This rule has remained
steadfast in the over half-century since Circle Lounge was
decided. In Waltham Motor Inn, Inc. v LaCava, 3 Mass. App.
Ct. 210, 217 .(1975) , the Appeals Court held that that
anticipated effects of business competition were not viable
interests deserving of zoning protection. See also Green v.
Board of Appeals, 404 Mass. 571, 574 (1989) ("a business
competitor does not have standing an aggrieved party") ; Verc.
Inc. v. Putziger, 1993 WL 818769 (Mass. Super. 1993) ("zoning
has many laudable purposes, but stifling of competition is not
one of them") ; Blanchard v. Pellegrini, 1995 WL 808781 (Mass .
Super. 1995) (" [A]ny claim of increased competition is
insufficient to establishing standing") ; and Southgate at
Shrewsbury, Inc. v Shea, 1996 WL 499102 (Mass. Super. 1996)
("A person's concern about possible business competition which
may result in the issuance of a permit has been determined not
to constitute a reason for `aggrieved party' status.") . Thus,
Harrington, who specifically alleges that her harm is solely
the anticipated competitive economic impact from a number of
additional hotel rooms makes no claim cognizable under G.L. c.
19
40A, § 17 and the motions to dismiss should be granted on
their merits.
III. THE CITY OF SALEM GRANTED HARRINGTON SUBSTANTIALLY MORE
PROCESS THAN SHE WAS DUE.
Harrington' s due process argument is built on the
shakiest house of cards. The foundation of her house of cards
consists of a false statement made by her counsel, citation of
wholly inapposite cases, and blind ignorance to controlling
law which has been settled for decades . As will be shown
below, even the stalwarts of Hester Prynne' s community would
be shocked by Pickering's neighbor's conduct as to the due
process issue.
First, Harrington makes the shrill plea that the
Planning Board failed to consider the Salem' s master plan in
deciding to approve Pickering's site plan. Says Harrington,
"the City's own master plan stated that there should not be
the construction of a new hotel with more than 66 rooms ."
(Harrington Brief, p. 21) . Harrington and her counsel know
better. The record does not contain the master plan, but
Pickering has attached it to this brief should the Court wish
to review it. That master plan makes no such statement and
says nothing even remotely similar to Harrington' s statement.
What it does say, as set forth in Harrington' s Complaint, is
that the City would support " [g] reater quantity and variety of
lodging alternatives - encourage development of convention
hotel, family and B & B lodging. . . ." (App. S, para. 11) . It
is simply impossible for a rational person to argue that the
20
l
Planning Board was not effectuating this goal in approving
Pickering's site plan request to construct a hotel property,
which would both add lodging and would include hotel
facilities .'
The two cases cited by Harrington to support her
argument that the Board denied her due process in fact support
the Board's decision. Rando involved a rezoning of property
from residential to commercial which was not preceded by a
traffic study as required under the Town's master plan. 44
Mass. App. Ct. 603 . The rezoning was upheld as all that was
required for rezoning was an analysis of land use planning
considerations . The four-page single spaced Decision here,
dealing with conformance to the site plan, landscaping,
signage, health, fire and environmental issues, and traffic
issues, among other issues (App. 17-20) , can hardly be said
not to show careful and detailed analysis of the important
land use issues to which site plan review speaks.'
s
Even if the project did not effectuate the goals of the
master plan, the law does not require that zoning be in strict
accordance with a master plan. Rando v. Town of North
Attleborough, 44 Mass. App. Ct. 603, 612 (1998) . It should be
noted as well that Harrington misstates the law when she says
that G.L. c. 41, § 81D requires that the City establish a
master plan. (Harrington Brief, p. 19) . The most cursory of
readings of this statute establishes that it does not .
b
National Amusements. Inc. v Boston, 29 Mass. App. Ct.
305 (1990) , the other case Harrington cites, stands for the
proposition that, before reclassifying a large parcel from
general business to multi-family residential, the City of
Boston must show its decision has some "roots in planning
objectives, rather than simply to protect other businesses in
the surrounding neighborhood." Id. at 312 . In this case,
21
r
What Harrington is really saying is that she has been
denied due process because the Board did not consider that her
possible competitive injury due to the addition of a number of
available hotel rooms in the City was deserving of protection
in the site plan review process. As has been shown in Section
II of this brief, the law has been settled for generations
that reducing business competition is an improper zoning
consideration. Circle Lounge & Grille Inc v Board of
Appeals of Boston, 324 Mass. at 430 . Thus, the Planning Board
correctly did not analyze the issue in its Decision.
It is undisputed that Harrington was permitted to file
a written objection to Pickering's application, (App. 12,
para. 19) , and to speak through her representative at the
three-day hearing, (Id. , para. 20) . Moreover, while the Board
is not required to provide a written analysis of all issues it
may have considered, Bowen v. Board of A eals of Franklin 36
DD ,
Mass. App. Ct. 954 (1994) , the Board here unquestionably did
so. (App. 17-20) .
In short, without any authority for her position
whatsoever, Harrington argues that her due process rights were
infringed upon because the Board did not consider possible
competitive injury to Three Corners in approving Pickering' s
site plan. The short answer is, had it done so, it would have
acted on a legally untenable ground and its decision would
Harrington is asking for the opposite, for the Planning Board
to protect her business at the expense of the City's master
plan goals and the standards set forth in the By-Law.
22
have been arbitrary and capricious . Gervk v. Zoning Appeals
Board of Easthampton, 8 Mass. App. Ct. 683, 684 (1979) ; Slater
v. Board of Appeals of Brookline, 350 Mass. 70, 73 (1966) .
Because Harrington's appeal on the due process issue is
without any basis in law whatsoever, Pickering requests that
this Court award Pickering double costs pursuant to G.L. c.
211, § 10 . Avery v. Steele, 414 Mass. 450 (1993) .
CONCLUSION
For the foregoing reasons, Pickering respectfully
requests that the Court rule that the Land Court had subject
matter jurisdiction to hear this appeal, that Harrington' s due
process claim be denied, that double costs be awarded to
Pickering, and that the Court determine on the merits to grant
Pickering' s motion to dismiss on the grounds that Harrington's
Complaint failed to state a claim upon which relief can be
granted and Harrington had no standing to bring the Complaint
which alleges only potential competitive economic injury.
J. HILARY ROCKETT,
as he is trustee of
Pickering Wharf Realty Trust
By his attorneys,
Paul L. Feldman, BBO# 162205
Judith Ashton, BBO# 022900
DAVIS, MALM & D'AGOSTINE, P.C.
One Boston Place
Boston, MA 02108
(617) 357-2500
23
t
f
WALTER B. POWER, III, et als .
and THE CITY OF SALEM
By their attorneys,
i e n, BBO# 307580
S eet
Suite 37
Salem, MA 01970
(978) 741-3888
Dated: July 17, 2000
J:\Ashton\ROCRSPf\appnal.hrf.v d
24
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS, Sitting in TRIAL COURT OF THE
SUFFOLK, SS COMMONWEALTH
LAND COURT DEPARTMENT
Civil Action No. q9 ^ 25? 538
DOROTHY L. HARRINGTON, AS SHE IS
TRUSTEE OF THE THREE CORNERS
REALTY TRUST, AND DONALD J.
MICHAUD AND MARY G. MICHAUD,AS
THEY ARE TRUSTEES OF THE MI-SKE
REALTY AND INVESTMENT TRUST
Plaintiffs
V.
WALTER B. POWER, III, AS HE IS
CHAIRMAN AND CHARLES M. PULED,
JOHN C. MOUSTAKIS, GENE COLLINS,
KIM DRISCOLL, L. LEE HARRINGTON,
CARTER VINSON, DAVID WEINER, AND
WILLIAM R. CULLEN, AS THEY ARE
MEMBERS OF THE PLANNING BOARD
OF THE CITY OF SALEM; THE CITY OF
SALEM; AND J. HILARY ROCKETT,AS
HE IS TRUSTEE OF PICKERING WHARF
REALTY TRUST
Defendants
COMPLAINT
COUNT I: JUDICIAL REVIEW UNDER G L C 40A & 17
INTRODUCTION
1. This is a complaint for judicial review against the Planning Board of the City of
Salem, the City of Salem and the Pickering Wharf Realty Trust by persons
aggrieved by a decision of the Planning Board as it is constituted as a special
permit granting authority which granted a special permit to the Pickering Wharf
Realty Trust. As set forth in this complaint, this decision was in excess of the
authority of the said Board and was legally untenable, unreasonable, capricious
and arbitrary.
Y
2. This complaint seeks to annul the decision of the Planning Board rendered July
29, 1999, and filed in the Office of the City Clerk July 29, 1999 (the "Decision").
(A copy of the Decision is attached hereto and marked"A.")
3. The complaint also seeks a declaration of rights under G.L. c. 231 A with respect
to the actions of the Planning Board and the City of Salem by virtue of the failure
of the Planning Board to consider in its Decision the diminished value of, and the
adverse effect upon, the property rights of the Plaintiffs caused by the Decision
and the adverse economic effect on the City of Salem and its citizens generally.
PARTIES
4. The Plaintiff Dorothy L. Harrington is the Trustee of Three Comers Realty Trust
(the "Trust"), a Massachusetts Realty Trust which was established under a
Declaration of Trust dated December 30, 1985, and recorded in Essex South
District Registry of Deeds, Book 8150,page 380. The Trust owns the property
known as the Hawthorne Hotel (the"Hawthorne")located on the Common at 18
Washington Square West in Salem, Massachusetts and is very near the property
subject to the Decision(approximately 800 feet away). The Hawthorne has
existed since 1925 and is presently operated as a hotel with eighty-nine (89)
rooms. It employs approximately one hundred nine 190 full and part-time
ninety ( )
employees, of which approximately one hundred ten(110) are residents of the
City of Salem.
2
5. The Plaintiffs Donald J. Michaud and Mary G. Michaud reside at 12 Savoy Road
in Salem, Massachusetts and are Trustees of the Mi-Ske Realty and Investment
Trust, a Massachusetts Realty Trust which was established under a Declaration of
Trust dated April 6, 1992, and recorded in Essex South District Registry of Deeds,
Book 11431, page 426. The trust owns the property at 222/224 Derby Street,
Salem, Massachusetts, which abuts the property subject to the Decision.
6. The Defendants Walter B. Power, III of 18 Loring Avenue, Salem, Massachusetts,
Charles M. Puleo of 5 Freeman Road, Salem, Massachusetts, John C. Moustakis
of 25 Dearborn Street, Salem, Massachusetts, Gene Collins of 63 Appleton Street,
Salem, Massachusetts, Kim Driscoll of 12 Charles Street, Salem, Massachusetts,
L. Lee Harrington of 23 Beach Avenue, Salem, Massachusetts, Carter Vinson of 7
Chestnut Street, Salem, Massachusetts, David Weiner of 16 Bay View Circle,
Salem, Massachusetts, and William R. Cullen of 41 Walter Street, Salem,
Massachusetts are the Chairman and members of the Planning Board of the City
of Salem existing pursuant to the provisions of G.L. c. 41 § 81A.
7. The Defendant City of Salem is a municipal corporation.
8. The Defendant J. Hilary Rockett is the Trustee of the Pickering Wharf Realty
Trust ("Pickering Wharf.") The address of the Trust is 190 Pleasant Street,
Marblehead, MA 01945.
THE LAW GOVERNING THE PLANNING BOARD AND
THE EVIDENCE BEFORE THE BOARD
9. The Defendant Planning Board is required by G.L. c. 41, § 81D to establish a
master plan and is authorized to "perfect such plan." The master plan is required
to be "a statement, through text, maps, illustrations or other forms of
3
communication, that is designed to provide a basis for decision making regarding
the long-term physical development of the municipality. The comprehensive plan
shall be internally consistent in its policies, forecasts and standards, and shall
include the following elements:...
(1) Goals and policies statement which identifies the goals and
policies of the municipality for its future growth and development.
Each community shall conduct an interactive public process, to
determine community values, goals and to identify patterns of
development that will be consistent with these goals.
(4) Economic development element which identifies policies and
strategies for the expansion or stabilization of the local economic
base and the promotion of employment opportunities."
10. The Salem Zoning Ordinance contains in its Section 7-18 entitled"Site Plan
Review" the following:
"The planning board shall review [an application]... and make
certain that the development, if approved,takes place in a manner
which shall in all aspects be an asset to the city..."
11. On September 4, 1997, the Planning Board adopted a"Master Plan Update"
which included among its provisions the development of"Greater quantity and
variety of lodging alternatives—encourage development of convention hotel,
family and B&B lodging..."
4
12. On August 14, 1997, the City of Salem issued a request for proposal for a
consultant to prepare a hotel feasibility study. The request specifically includes
the following at p. 1 —"The result of the study shall include: a determination of
the number of hotel rooms that can be absorbed into the Salem market." A copy
of the request for proposal is attached hereto and marked"C."
13. On August 29, 1997, the City of Salem received a response to the request for
proposal from Landauer Hospitality Group and a letter relating to the proposed
engagement . (The response and letter are attached hereto and marked "D.")
14. On September 4, 1997 (the same day on which the Board adopted the Master Plan
Update), the City of Salem executed an agreement with Landauer Hospitality
Group for a hotel feasibility study based upon the request for proposal referred to
as Exhibit C. A copy of the Agreement is attached hereto as "E."
15. On December 31, 1997, the Landauer Hospitality Group issued its Report
pursuant to the Agreement. A copy of this Report is attached as "F."
16. In its Report to the Defendant City of Salem, the Landauer Hospitality Group
concluded the following with respect to a new hotel:
"Salem is a highly seasonal market. Although Salem's unique
history and vaned attractions draw an estimated 650,000 visitors
per year, the majority of these visits occur between June and
October." (Page 3, Landauer Report"F," City of Salem,
December, 1997.)
5
"Two project facility scenarios were analyzed during the course of
this assignment, a 120-room, mid market, full-service lodging
facility and a 66-room limited-service lodging facility. Each
scenario was analyzed in the context of site dynamics, project
costing, site plan layout, and prospective market and financial
performance. It was determined, that a 66-room limited service
hotel stood the best chance of attracting private sector developer
interest."
"A small 66-room limited service hotel at Pickering Wharf appears
market supportable. Significant concessions will be required from
the City of Salem and a potential developer in order to render the
project financially feasible." (Page 8, Landauer Report "F", City of
Salem, December, 1997.)
The hotels located in Salem will be particularly vulnerable to the
hotel expansion currently taking place on the North Shore's
highways. In most instances, these locations offer higher visibility,
greater accessibility and closer proximity to the major demand
generators in the North Shore market. As a result, expansion of the
hotel supply in the future will have a greater impact on hotels with
secondary locations such as Salem." Page 55, Landauer Report
"F," City of Salem, December, 1997.)
"Based on the preceding analysis of the market area including the
existing properties and planned additions to the hotel supply, we
6
recommend selection of the Pickering Wharf site for potential
hotel development. This selection was based upon the superior
attributes of the site as outlined in the Site Analysis section of this
report. Market, anticipated financial performance and site
constraints size the property at 66 guest rooms. We do not believe
that the development of a full-service property will yield any
significant advantage cost of developing such a property. Our
research supports the development of a limited-service hotel with a
national franchise affiliation." (Page 63, Landauer Report "F," City
of Salem, December, 1997.)
"Despite its waterfront location and close proximity to Salem's
many attractions including tourist destinations, restaurants and
shopping, the prospective hotel will still have a locational
disadvantage when compared to the competitive hotels located on
the area's highways. With its modern accommodations and
facilities, the prospective hotel will have a competitive advantage
over the two Salem hotels, the Salem Inn and Hawthorne Hotel, in
capturing tourism and locally generated corporate demand." (Page
64, Landauer Report "F," City of Salem, December, 1997).
(Emphasis added)
THE DECISION OF THE PLANNING BOARD
17. On May 27, 1999, the Defendant Pickering Wharf filed a letter purporting to be
an application with the Defendant Planning Board for a "Site Plan Review and
7
Wetlands and Flood Hazard District Special Permits" for "the construction of a
five-story hoteUretail building and a new single-story bank building at 223-231
Derby Street and 23 Congress Street in the City of Salem...[and] a parking lot
consisting of 83 vehicle spaces." (Decision"A", first paragraph). The letter
purporting to be the application is attached hereto as "A-1." The City of Salem
Form of Application for Site Plan Review Permit (not filed by Pickering Wharf)
is attached hereto as "A-2." Nowhere in the letter of Pickering Trust nor in the
Decision is there a statement of the number of rooms in the proposed hotel,
although the form of application (not filed) calls for a statement of the number of
units.
18. A public hearing was commenced by the Planning Board on June 17, 1999, and
continued on July 1, 1999, and July 28, 1999, with respect to that application.
19. On July 1, 1999, a representative of the Trust sent to the Defendant Power a letter
setting forth objections to the application. (A copy of that letter is attached hereto
and marked`B").
20. On July 28 1999 the
Trust appeared through counsel before the Planning Board
at its hearing and presented documents, testimony and argument in opposition to
the application primarily on the grounds that the unrebutted evidence (including
specifically a Report of a consultant authorized by the Defendant City of Salem
itself) before the Planning Board with respect to the ability of the City of Salem to
support economically a hotel of the size proposed by the application demonstrated
that the addition of such a hotel in the Salem market would be likely to cause
serious dimunition of the value of the property of the Trust. Evidence presented
8
by the Michaud's demonstrated that the size of the proposed hotel structure would
diminish the economic value and important amenities of the Michaud property.
21. On July 28, 1999, the Trust presented to the Planning Board a copy of a report
dated January 14, 1997, previously furnished to the Board, from Pinnacle
Advisory Group, a hotel development consultant, entitled: "Market Demand
Study for a Proposed Hotel to be Located in Salem, Massachusetts." (A copy of
that report is attached hereto and marked "G.") That report concluded that "Given
the strength of the demand in the market, we believe that a 60-room hotel would
be most appropriate.""(Page 16).
22. On July 28, 1999, a principal of Pinnacle Advisory Group presented testimony to
the Board reaffirming and updating the report of the Pinnacle Advisory Group and
stated its conclusion that a limited service hotel in excess of approximately 60
rooms would be likely to fail and was likely to cause economic damage to the
property of the Trust itself by virtue of the excess number of rooms in the Salem
market over the demand therefor.
23. Notwithstanding the conclusions of the Landauer Report and the Pinnacle
Advisory Group Report, the City has required the Pickering Wharf Trust to
develop a hotel of"not less than 70 and not more than 140 rooms"as part of a
Tax Increment Financing program with respect to which the City entered a
Memorandum of Understanding on April 8, 1998. (A copy of that Memorandum
of Understanding is attached hereto and marked "H.")
24. No evidence was presented to the Planning Board contradicting the Report of the
City's own consultant. In fact, other evidence presented to the Board confirmed
9
the conclusions of the Report of the City's consultant as to the adverse effect of
the proposed hotel on the property of the Trust and its lack of economic
feasibility.
25. Notwithstanding the undisputed evidence before the Planning Board, the Board
rendered the Decision which in no way reflects any analysis of, or even
consideration of, or any determination with respect to, the economic effects of the
proposed hotel on the property of any abutters or any person very near the
property.
26. In the light of the evidence before the Planning Board, including specifically the
conclusions of the Report of the consultant authorized by the City of Salem itself,
the action of the Planning Board in issuing the Decision without analysis or
consideration of any evidence of diminished value of property or adverse effects
on property rights, and contrary to all of the evidence before the Board, was in
excess of the authority of the Board and was legally untenable, unreasonable,
capricious and arbitrary and should be annulled.
COUNT TWO: DUE PROCESS
27. The Plaintiffs incorporate herein by reference paragraphs 1 through 26.
28. The failure of the Planning Board to give any analysis of land use planning
considerations, including economic factors relating to the nature of adjoining
uses, as detailed in the Report authorized by the City of Salem, in its special
permit Decision constituted a denial of due process to the Plaintiffs in violation of
Article XII of the Declaration of Rights of the Constitution of The
10
Commonwealth of Massachusetts and the Fifth and Fourteenth Amendments to
the United States Constitution.
WHEREFORE, the Plaintiffs pray that:
1. The Court hear all the evidence pursuant to G.L. c. 40A, § 17 pertinent to the
authority of the Planning Board of the City of Salem to issue the Decision dated
July 29, 1999.
2. The Court determine the facts and, upon the facts as so determined, annul the
decision of the Planning Board of the City of Salem dated July 29, 1999, was in
excess of the authority of the said Board and legally untenable, unreasonable,
capricious and arbitrary.
3. The Court pursuant to G.L. c. 231A make a binding declaration that the Planning
Board of the City of Salem must consider the effect of the granting of a special
permit for the construction of a new hotel upon the value of the property and
property rights of an abutter or person whose property is very near.
4. The Court make such other decree as justice and equity may require, including,
but not limited to, remanding this matter to the Planning Board with instructions
to hear further evidence of the diminished value of the property of the Plaintiffs
and the adverse effects on the Plaintiffs' property Yrights caused by the proposed
hotel facility and to make specific findings upon such evidence before rendering
any new decision upon the application.
tt
I
DOROTHY L. HARRINGTON, AS SHE
IS TRUSTEE OF THE THREE
CORNERS REALTY TRUST AND
DONALD J. MICHAUD AND MARY G.
MICHAUD, AS THEY ARE TRUSTEES
OF THE MI-SKE REALTY AND
INVESTMENT TRUST
qr Attorney,
4
M. Goldings
BBO# 198800
MAHONEY, HAWKES & GOLDINGS, LLP
The Heritage on the Garden
75 Park Plaza
Boston, Massachusetts 02116
Tel: 617-457-3100
Date: August 17, 1999
447262
12
33 �
MAHONEY, HAWKES & GOLDINGS, LLP
ATTORNEYS AND COUNSELLORS AT LAW
Morris M.Geldings
Loyd M.Starrett
William S.Hawkes
August 17, 1999 Mark Pete.
Frances Allou Genhwin
Copy
aures Winthrop 6dmanc
Damn a.Cor
BY HAND DELIVERY Laurence t p mn
Ed
Clerk's Office e ohert C Cate
Land Court Department aDaaid J.GddheqC�ada�Jones
24 New Chardon Street v David17Cerrigso
Boston,Massachusetts 02114-4703 BriwjF Leah
Re: Dorothy L. Harrington,et al.v. Walter B. Power III et al aie .Jaeohs
1V Keely J.Sullivan
Dear Sir or Madam: Matthew P.zaymi
Enclosed herewith for filing please find the Complaint in the above GW��°pki°e
referenced matter together with a check in the amount of$110 for the filing fee.
Direct Did
Please date-stamp the enclosed copy of this letter and return it to the (617)210-1477
undersigned with the messenger.
Thank you for your attention in this matter.
�y yo
Morris M. Goldings
MMG/jag
Enclosure
#47502
The Heritage on the Garden • 75 Park Plaza • Boston. Massachusetts 02116
Telephone: 617.457.3100 • Facsimile: 617.457.3125
COPY TO CITY SOLICITOR — AUG. 24, 1999
MAHONEY, HAWKES & GOLDINGS, LLP
ATTORNEYS AND COUNSELLORS AT LAW
Morris Al. Goldings
Loyd M.Starrett
William S. Hawkes
August 17, 1999 Mark Peters
Frances Allou Gersh an
Bruce Winthrop Edmonds
Ms. Deborah E. Burkinshaw James B.cea
City Clerk
Laurence M.Johnson
City of Salem
Robert C. Cadle
Salem City Hall Daniel J.Goldberg
93 Washington Street Douglas L.Jones
Salem, Massachusetts 01970 David R. Kerrigan
Brian W.LeClair
Dear Madam Clerk: Ellen S.Shapiro
Richard S.Jacobs
Please take this as notice that on August 17, 1999 the original of the Keely J.Sullivan
Complaint of Dorothy L. Harrington, Trustee, et al. v Walter B. Power, III, et al., Matthew P.zavetti
Civil Action No. 99-258338 for Judicial Review under G.L. c. 40A § 17 and for James
other relief was filed in the Land Court Department of the Trial Court of the Of Couns Hopkins
el
Commonwealth of Massachusetts in Boston. The Complaint relates to the decision
of the Planning Board filed July 29, 1999. Direct Dial
(617)210-1477
Thank you for your attention in this regard.
Very trul yours
Morris M. Gold gs
MMG/jag
Enclosure
n
#47441
G7 ,J
v Y
w l
_ s
—J v7
The Heritage on the Gamlen • 75 Park Plaza • Boston, Massachusetts 02116
Telephone: Cil L05:.3100 • Fac si mile: 61-.45-.3125
C;Ty of S+aOF M- A
C1 ERK
- C lug Ulf "Salem, fflttssadjusfifs
3 ' Patming Puarb 1999 JUl 29 P 1� OU
1(Dnr �$ttlrm Grant
July 29, 1999
Pickering Wharf Realty Trust
C/o Atty. Joseph Correnti
Serafini, Serafini, Darling, & Correnti, LLP
63 Federal Street
Salem, MA 01970
RE: Pickering Wharf Hotel, 223-231 Derby Street and 23 Congress Street
Site Plan Review and Wetlands and Flood Hazard District Special Permit
On Thursday, June 17, 1999, the Planning Board of the City of Salem opened a Public Hearing
regarding the application of Pickering Wharf Realty Trust under Site Plan Review and Wetlands
and Flood Hazard District Special Permit for the construction of a five story hotel/retail building
and a new single story bank building at 223-231 Derby Street and 23 Congress Street. In
addition, the plan shows a parking lot consisting of 83 vehicle spaces.
The Public Hearing was continued to July 1, 1999, and closed on July 28, 1999. At a regularly
scheduled meeting of the Planning Board held on July 28, 1999,the Board voted by a vote of
seven (7) in favor,none opposed,to approve the application as complying with the requirements
of Site Plan Review and the Wetlands and Flood Hazard District , subject to the following
conditions:
I. Conformance with the Plan
Work shall conform with the set of plans entitled, "Site Plan for Pickering Wharf Hotel &
Retail Building—223-231 Derby Street and 23 Congress Street, Salem, MA", sheets 1-11,
prepared by Patrowicz, Land Development Engineering, dated May 26, 1999.
2. Amendments
Any amendments to the site plan shall be reviewed by the City Planner and if deemed
necessary by the City Planner, shall be brought to the Planning Board. Any waiver of
conditions contained within shall require the approval of the Planning Board.
3. Landscaping
a. All landscaping shall be done in accordance with the approved set of plans.
b. Trees shall be a minimum of 3 ''/z" caliper.
Pickering Wharf Hotel
July 29, 1.999-2
c. Maintenance of landscape vegetation shall be the responsibility of the developer,his
successors or assigns.
d. Additional landscaping shall be planted adjacent to the rear of the building. A final
landscaping plan for this area shall be approved by the City Planner.
e. All attempts shall be made to save the trees located on the site prior to construction,
excluding the trees located at the proposed curb cut on Congress Street adjacent to the bank
building,the curb cut proposed on Derby Street, and the proposed loading dock curb cut on
Derby Street.
f After such landscaping is completed,the developer will add further landscaping if such is
requested by the Planning Board or the City Planner.
g. A four foot high black wrought iron style fence shall be constructed around the perimeter
of the property, excluding the rear property line. The final design of the fence shall be
approved by the City Planner.
4. Signage
a. Proposed signage shall be reviewed and approved by the City Planner and the Sign
Review Committee.
5. Lighting
a. Ornamental lighting shall be installed on the site, which is in keeping with the standard
City of Salem lighting located on Derby Street.
b. No light shall cast a glare onto adjacent parcels or adjacent rights of way.
c. A final lighting plan shall be submitted to the City Planner for review and approval prior
to the issuance of a building permit.
d. After installation, lighting shall be reviewed by the City Planner, prior to the issuance of
a Certificate of Occupancy.
6. Construction Practices
All construction shall be carried out in accordance with the following conditions:
a. Work shall not be conducted between the hours of 5:00 PM and 8:00 AM the following
day on weekdays or at any time on Sundays or Holidays.
b. All reasonable action shall be taken to minimize the negative effects of construction on
abutters. Advance notice shall be provided to all abutters in writing at least 72 hours prior to
commencement of construction of the project.
c. Drilling and blasting shall be limited to Monday-Friday between 8:00 AM until 5:00 PM.
Pickering Wharf Hotel
July 29, 1.999-3
There shall be no drilling or blasting on Saturdays, Sundays, or holidays. Blasting shall be
undertaken in accordance with all local and state regulations.
d. All construction vehicles shall be cleaned prior to leaving the site so that they do not
leave dirt and/or debris on surrounding roadways as they leave the site.
e. All construction shall be performed in accordance with the Rules and Regulations of the
Planning Board, and in accordance with any and all rules,regulations and ordinances of the
City of Salem.
f. All construction vehicles left overnight at the site, must be located completely on the site.
7. Clerk of the Works
A Clerk of the Works shall be provided by the City, at the applicant, his successors or
assigns' expense, as is deemed necessary by the City Planner.
8. Board of Health
All Board of Health requirements as specified in the attached decision dated July 15, 1999,
shall be strictly adhered to.
9. Fire Department
All work shall comply with the requirements of the Salem Fire Department.
10. Conservation Commission
All work shall comply with the Order of Conditions issued by the Salem Conservation
Commission.
11. Building Inspector
All work shall comply with the requirements of the Salem Building Inspector.
12. Utilities
a. Utility installation shall be reviewed and approved by the City Engineer prior to the
issuance of a Building Permit.
b. Drainage shall be reviewed and approved by the City Engineer prior to the issuance of a
Building Permit.
13. Conference Center
The City of Salem Planning Board endorses the concept of the Conference Center proposed
to be constructed on the site as part of the site master plan. The applicant agrees to file plans
for Site Plan Review of the Conference Center within three (3) years of the completion of
construction of the hotel.
14. Exterior Elevations
a. Building elevations shall be similar to the elevation sketch dated July 29, 1999, with the
exception of the projecting entry tower. The projecting entry tower shall be reduced to
Pickering Wharf Hotel
July 29, 1999-4
extend approximately 10 feet A revised elevation sketch shall be submitted to the Planning
Department.
b. Final elevations,brick type, and other building materials shall be reviewed and approved
in writing by the City Planner prior to the issuance of a Building Permit.
15. Traffic Mitigation
The developer, his successors, or assigns agrees to contribute $10,000 to a downtown
corridor traffic study to be conducted through the City of Salem. The contribution made by
the developer, his successors, or assigns shall coincide with the City of Salem receiving
confirmation of funding for the study.
16. Maintenance
a. Refuse removal, ground maintenance and snow removal shall be the responsibility of the
developer, his successors or assigns.
b. Winter snow in excess of snow storage areas on the site shall be removed off site.
c. Maintenance of all landscaping shall be the responsibility of the applicant, his successors
or assigns. The applicant, his successors or assigns, shall guarantee all trees and shrubs for a
two-(2)year period.
17. As-built Plans
As-built plans, stamped by a Registered Professional Engineer, shall be submitted to the
Planning Department and Engineering Department prior to the issuance of the final
Certificate of Occupancy.
18. Violations
Violations of any condition shall result in revocation of this permit by the Planning Board,
unless the violation of such condition is waived by a majority vote of the Planning Board.
I hereby certify that a copy of this decision and plans has been filed with the City Clerk and
copies are on file with the Planning Board. The Special Permit shall not take effect until a copy
of this decision bearing the certification of the City Clerk that twenty (20) days have elapsed and
no appeal has been filed or that if such appeal has been filed, and it has been dismissed or
denied, is recorded in the Essex South Registry of Deeds and is indexed under the name of the
owner of record is recorded on the owner's Certificate of Title. The owner or applicant, his
successors or assigns, shall pay the fee for recording or registering.
Walter B Power, III
Chairman
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Dept
Walter B. Power, III, Chairman
City of Salem Planning Board
One Salem Green, 2nd Floor
Salem, MA 01970
RE: Application for Site Plan Review and Wetlands and Flood
Hazard District Special Permits - Pickering Wharf
223-231 Derby Street and 23 Congress Street, Salem
Dear Mr. Power:
On behalf of the Pickering Wharf Realty Trust, owner of
property situated at 223-231 Derby Street and 23 Congress Street in
Salem, described on plans submitted herewith, I hereby make
application for Site Plan Review under Section 7-18 , and a Special
Vermit under the Wetlands and Flood Hazard District, Section 7-16
of the City of Salem Zoning Ordinance.
The proposed project involves the demolition of some retail
buildings , as well as the former marina building, and the
redevelopment of a two acre portion of the Pickering Wharf complex.
The site abuts the South River, and a Notice of Intent will also be
filed with the Conservation Commission.
The .proposal includes the construction of a five-story
hotel/retail building and a new single-story bank building. Also
shown on the plan, but intended for a future filing With the
Planning Board, is Phase 2 of the development, which includes a
hotel conference center and marina. Proposed parking includes
eighty-three .(83) on-site spaces, as well as use of the surface
parking lot across Congress Street, which is controlled by the
Applicant. Additionally, the new parking garage on the corner of
Congress and Derby Streets will be operational and available for
Pickering wharf patrons. The project is to be constructed as shown
on the plans submitted herewith, and it provides n continuum of the
allowed mixed uses which are allowed in the Central Business (B-5)
District.
Walter B. Power, III, Chairman
City of Salem Planning Board
May 27 , 1999
Page Two
The proposed buildings will have a grand federal, nautical-
type design to help convey the history of Salem' s seaport. The
landscaping proposed uses street trees within the parking area to
supplement er1. tx
ng tree„
that surround the site. The building
materials, as designees by the architect, include brick facades.
The plans as filed, together with the Environmental Impact
Statement which serves as the narrative under the list of requests
contained in the Site Plan Review requirements, give a
comprehensive view of the project.
This project is an exciting addition to the City. The new
hotel, restaurant and retail space will create a grand and natural
link. between the downtown and the waterfront. The proposed project
will transform Pickering Wharf into the vibrant and exciting area
which it was always intended to be, and will have a positive impact
on the City while sending the message that Salem is indeed
interested in welcoming new business.
We respectfully request the Board's favorable review of the
plans under the Site Plan review process.
Sincerely,
Pickering Wharf Realty Trust
By:
ep C. Correnti, Esquire
JCC:dd
Enclosures
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CITY OF SALEM H�
APPLICATION
SITE PLAN REVIEW SPECIAL PERMIT
Applicant : Date of Submittal :
Address : Proposed Date of Hearing:
Telephone: Date of Approval:
Location of Property: Date of Completion of Appeal
Period:
1. Project Description:
a. Zoning district:
b. Square footage of parcel:
c. Square footage of structure(s) :
d. Square footage of footprint:
e. No. of dwelling units ( if applicable) :
II . Additional Information:
Information required includes this application and the
following additional information. File one copy of all information
with City Clerk and five copies with the Planning Board (all copies
must be stamped by City Clerk) .
a. A Site Plan at a scale of 1"=40 ' , (or as established by
Planning Board) including all requirements as set forth in Section
IIIB of the Salem Subdivision Regulations and the following:
1. Location and dimensions of all buildings and other
construction;
2 . Location and dimensions of all parking areas, loading
areas, walkways, and driveways;
3 . Location and dimensions of all internal roadways and
accessways to adjacent public roadways;
4 . Location and type of external lighting;
5 . Location, type, dimensions and qualities of
landscaping and screening;
6 . Location and dimensions of utilities, gas , telephone,
electrical communications, water , drainage, sewer and
other waste disposal;
7 . Location of snow removal areas ;
8 . Location of all existing natural features including
ponds, brooks, streams , wetlands, and marshes;
9 . Existing and proposed topography of the site, with
two foot contours ;
10 . Conceptual drawings and elevations of buildings to be
erected including elevations showing architectural
styles.
b. A brief narrative, as requested by the Planning Board
addressing these site plan requirements and other appropriate
concerns in the following defined categories:
1 . Building
2 . Parking and loading
3 . Traffic flow, circulation and traffic impact
4 . External lighting
5 . Landscaping and screening
6 . Utilities
7 . Snow removal
8 . Natural features and their protection and enhancement
9 . Topography and its maintenance
10. Compatibility of architecture with surrounding area
C. An Environmental Impact Statement in accordance with
Appendix A of the Salem Subdivision Regulations.
III . Procedure:
The Planning Board shall, within 7 days after the filing of
this application, transmit one copy of said application, plans and
all other submitted information to the Inspector of Buildings, City
Engineer , Board of Health and Conservation Commission who may, at
their discretion, investigate the application and report in writing
their recommendation to the Planning Board. The Planning Board
shall not take final action on such application until it has
received a report thereon from the Inspector of Buildings, City
Engineer , Board of Health and Conservation Commission or until
thirty-five (35) days have elapsed after distribution of such
application without a submission of a report. The Planning Board
shall hold a Public Hearing on said application as soon as possible
after receiving the above reports, in accordance with Chapter 40A
of the Massachusetts General Laws. The Planning Board shall notify
the applicant in writing of its decision on the special permit.
The decision shall document the proposed development or use and the
grounds for granting or refusing the special permit. The Planning
Board may, as a condition of approval, require that the applicant
give effective notice to prospective purchasers, by signs or by
recording the special permit at the Registry of Deeds, of the
conditions associated with said premises and the steps undertaken
by the petitioner or his successor in title to alleviate the
effects of same.
Signature of Applicant
Date
Fee Paid:
EX\DH\SPRSPAPP
HAWTHORNE
HOTEL
July 1, 1999
Mr. Walter B. Power, M
18 Loring Avenue
Salem,MA 01970
Re: Pickering Wharf Hotel proposal
Dear Walter:
I am writing to you, in your role as Chairman of the Salem Planning Board,to share with
you and your membership my growing concern relative to the viability and credibility of
the proposal currently before you calling for the redevelopment of a portion of Pickering
Wharf for hotel purposes in the context of both significant changes which have occurred
in the marketplace,and the equally significant departure the proposal represents in the
context of earlier consultative and expert advice the City received as the basis and rationale
for providing a durational public subsidy for this project.
Allow me to provide you with some background as context for the observation I have just
made and the conclusions which I have arrived at
The Friday,June 18, 1999, edition of The Salem Evening News in recounting the Planning
Board's initial public hearing on the proposed hotel for Pickering Wharf,indicated that a
100-room facility was planned. In addition,the account suggested that a second phase
component calling for a conference and meeting center was contemplated,but was not
presented to the Board for consideration at this point in time.
As you are aware,the Salem City Council on June 16, 1998 gave approval,subject to
concurrence on the part of the Economic Assistance Coordinating Council of the
Commonwealth of Massachusetts,to a multi-year tax increment financing agreement
with the developer with respect to the hotel portion of its proposal as outlined in the TIF
agreement bearing that date. (I am enclosing a copy of the"Application for Certified
Project Designation Tax Increment Financing Plan"of June 16, 1998)
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July 1, 1999
Page 2
In this instance,the agreement approved by the City Council in June, 1998 called for the
construction of an 80-room hotel, along with a retail component,and a separate standing
building for Eastern Bank useage. Nowhere in the document was there a reference to a
second phase calling for the prospective creation of a conference and/or meeting center, as
outlined in the proposal presently before you.
By way of additional background as it relates to these initial observations, let me provide
you and your fellow members with some additional history as you evaluate the proposal.
In the fall of 1996, in the aftermath of successfully negotiating with the Federal Deposit
Insurance Corporation with respect to the resolution of all of the issues occasioned by the
fall of Bank of New England in January, 1991, the ownership of the Hawthorne Hotel
retained Rachel Roginsky,of Pinnacle Advisory Group, Boston,to undertake an evaluation
of the need for additional hotel capacity in Salem. (By way of background,Ms. Roginsky's
fmn has for a number of years been the primary source of gathering and evaluating
information on behalf of the Massachusetts Lodging Association with respect to all aspects
of the hospitality industry in the ambit of the organization's service area.)
Ms.Roginsky completed her report on or about January, 1997 and recommended that
the City could absorb some additional 60 rooms of moderately priced hotel capacity,
suggesting, in the course of her report,that it was important that it have a national
affiliation, be moderately priced, and configured as suites. (A copy of the Roginsky report
is enclosed. Note particularly the Executive Summary dealing with a number of these
issues on pages 1-4. I should also add here that I made the Roginsky-Pinnacle Advisory
report available to the City coincidental with their determining to undertake a similar
initiative.)
Subsequent to this, the City engaged in its own evaluation of room needs and retained the
Landauer Hospitality Group, a well recognized and substantive consultant to the hospitality
industry,to perform this function. In December, 1997, the Landauer report was submitted
to the City. The Landauer report was remarkably similar in nature and conclusions to the
recommendations previously made by the Pinnacle Advisory Group, in this instance,
suggesting a moderately priced, suite only, nationally affiliated 66-room property as
potentially achievable with supplemental assistance from the City at the Pickering Wharf
site.
Both reports noted the secondary nature and potential vulnerability of the Salem market,
and the likelihood, given general developer interest post the recovery of the local economy,
that other rooms were likely to come on line at or near major highway locations. The
Landauer report noted the existence of 1,197 rooms which it defined as competitive within
GO nAniuw�+m - -
July 1, 1999
Page 3
the existing marketplace and made specific reference to additional projects either under-
way, or seeking permitting within the market area which it defined as encompassing the
Cities of Salem, Peabody and Beverly and the Town of Danvers. (I am enclosing a copy
of the Landauer report submitted to the City of Salem in December, 1997; I would suggest
that you note particularly pages 3-1I the Executive Summary within that report.)
Since these evaluations were completed, the intervening eighteen months have seen some
659 rooms completed or in the process of completion. I think it is useful at this juncture to
spell out specifically to you and your Board the properties which make up this additional
rooms complement, and their respective locations.
1) 120-room Hampton Inn, Route 1 north,Peabody
2) 85-room Homewood Suites, Route 1 north,Peabody
3) 97-room Mainstay Suites in Centennial Park, Peabody
4) 115-room Extended Stay America, Route 1, Danvers
5) 127-room Marriott,Danvers, (in construction, completion
and opening, 1999)
6) 115-room Springwood Suites Hotel, Route 1, Peabody
(permitting completed, construction to commence, 1999)
This, then, is the situationp y existent
resentlas you undertake to review the proposal
before you. The current project calling for 100 rooms is 50%larger in scale than that
recommended by the City's consultant, Landauer Group in December, 1997,and 66 2/3%
larger than the recommendation made to the owners of the Hawthorne Hotel in January
of that same year. The number of available rooms has increased in the context of the
Landauer Group's defined market area(Salem/Beverly/Peabody/Danvers)by over 55%.
There are now 1,856 rooms identified as in existence or coming on Iine as against the
1,197 rooms referred to by the Landauer Group in making its evaluation and recommenda-
tions to the City of Salem in December, 1997.
Stepping back in an effort to put this in a somewhat broader context, it is equally clear,
based on the Hotel Hawthome's experience and data available through the Massachusetts
Lodging Association, and other equally substantive evaluative sources, that the increase in
the overall number of rooms within the relevant Massachusetts area has led to a modest but
real waning of occupancy. In addition, during this same period the growth in average daily
rate growth has significantly moderated.
In view of the overall situation which I have made an effort to highlight for you, I have
retained Ms. Roginsky's firm,Pinnacle Advisory, to provide me with an update of her
January, 1997 analysis with respect to hotel room needs within the Salem marketplace,
July 1, 1999
Page 4
both in the context of the Pickering Wharf proposal, and more importantly, with respect to
the sharp increase in the number of hotel rooms within the market area, and to the
broader market trends I have alluded to.
Ms. Roginsky has indicated that she.estimates it will take approximately a month to six
weeks to complete this evaluation. When it is available, as I did earlier,I intend to make
this information available to representatives of the City of Salem.
In view of the City's intent to subsidize this project for a 12-year period, I think it would
be useful, before proceeding further, to ask that the Salem Planning Board, acting with and
through the Mayor and City Council to undertake a similar review of these substantial
changes, both with respect to the present plan which, as I have indicated,represents a
marked departure from the consultants' recommendations, and more importantly, the
substantial changes in the number of rooms available in the defined marketplace.
As you know,the enabling ordinance providing for the creation of the Salem Planning
Board characterizes the general duties of the Board in the following manner: "...in
addition to the duties prescribed by statute, it should be the duty of the Planning Board...
in general to point out to the City Council such recommendations for the industrial,
commercial and civic development of the City as may seem for the best interest of the City
and its citizens."
My concern having spent the better part of thirteen years through good times and bad, in
an effort to make the Hawthorne Hotel a viable and contributive entity within the City
of Salem, is not to have the market become over-built as a result of a public subsidy.
This condition could adversely affect all concerned, including the City. For should the
economic cycle change, the potential exists under present circumstances to place not only
the existing hotel property, which as you know, was the initiative of the citizens of the City
of Salem some 74 years ago, but potentially both properties in financial jeopardy.
Sincerely,
Michael J. Harrington
MJH:AG
Enclosures
L
IX. RECOMMENDED FACILITIES AND ESTIMATED UTILIZATION
(LANDAUER REPORT)
Introduction
"Based on the preceding analysis of the market area including the existing properties and planned
additions to the hotel supply, we recommend selection of the Pickering Wharf site for potential
hotel development. This selection was based upon the superior attributes of the site as outlined
in the Site Analysis section of this report. Market, anticipated financial performance and
site constraints size the property at 66 guest rooms. We do not believe that the development
of a full-service property will yield any significant advantage in terms of increasing its overall
revenue potential when factored against the additional'cost of developing such a property.
Our research supports the development of a limited-service hotel with a national franchise
affiliation."
(Section IX- page 63 -Hotel Development Evaluation, Salem, Massachusetts, December,
1997, Landauer Hospitality Group.)
TAX INCREMENT FINANCING PLAN-JUNE, 1998
"Pickering Wharf Realty Trust pians to construct an 80 +/- roam, three story hotel
containing standard 14' x 36' rooms featuring kitchen facilities. The ground floor will
offer 18,000 square feet of retail space. The development will be a total of four stories. The
development cost of the hotel portion of the project is $3,541,100. The hotel will be
approximately 50,000 square feet."
(Page 2-Application for Certified Project Designation Tax Increment Financing Plan of
June 16, 1998.)
SALEM PLANNING BOARD INITIAL HEARING ON PICKERING WHARF HOTEL
PROPOSAL
"By Tom Dalton
News to
Salem - "The Planning Board got its first look last night at the plans for a 100-room
Pickering Wharf Hotel that supporters claim will revitalize the downtown."
(The Salem Evening News, Friday,June 18, 1999.)