135 LAFAYETTE STREET - ZONING SW + PU17
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Site Plan Review/Planned Unit Development Decision
135 Lafayette Street.
September 14, 2006
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Salem Lafayette Development, LLC �_ o
C/o Joseph Correnti, Esq. m o
63 Federal Street mo
Salem, MA 01970 o
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RE: 135 Lafayette Street/Former St. Joseph's Church site c�
Site Plan Review/Planned Unit Development r .__:K
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On Thursday, July 27, 2006, the Planning Board of the City of Salem opened a Public Hearing
under Sections 7-15 and 7-18 of the City of Salem Zoning Ordinance, Planned Unit
Development Special Permit and Site Plan Review, at the request of Salem Lafayette
Development, LLC, for the property located at 135 Lafayette Street. The proposed project
includes the razing of the former church and convent building, the renovation of the former
rectory and school buildings, and the construction of a new six-story building on the site. The
mixed-use development will include 97 units of housing and a Community Life Center.
Approximately thirty (30) units shall be rental units, and the approximately sixty-seven (67)
remaining units shall be condominiums. At least thirty-five (35) percent of the dwelling units on
the site shall be designated as affordable units. Hereinafter the term "Applicant" shall refer to the
Applicant, its successors or assigns.
The Public Hearing was continued to August 3, 2006, September 7, 2006 and closed on
September 7, 2006. The Planning Board hereby finds that the proposed project meets the
provisions of the City of Salem Zoning Ordinance, sec. 7-15 (g), as follows:
1) The proposed planned unit development is in harmony with the purpose and intent of this
ordinance and the master plan of the City of Salem and that it will promote the purpose of
this section.
2) The mixture of uses in the planned unit development is determined to be sufficiently
advantageous to render it appropriate to depart from the normal requirements of the
district. Specifically, the project incorporates a Community Life Center, as requested by
the City, and mixed income affordable housing providing substantial public benefit.
3) The planned unit development would not result in a net negative environmental impact.
Based on the information from the Environmental Impact Statement and plans, the
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project will result in an increase in public recreational space, a decrease in peak
stormwater discharge rates and will improve the vacant site significantly from its current
condition.
At a regularly scheduled meeting of the Planning Board held on September 7, 2006, the Planning
Board voted by a vote of nine (9) in favor(Power, Moustakis, Collins, Kavanagh, Durand, Puleo,
Lombardini, Sullivan, Reidy), and none (0) opposed to approve the Site Plan Review and
Planned Unit Development application subject to the following conditions:
1. Conformance with the Plan
Work shall conform to the plans entitled, "St. Joseph's Redevelopment, Salem,
Massachusetts" Sheets C-1.1, 2.1, 3.1, 4.1, 4.2 and 4.3 and, prepared by Samiotes
Consultants, Inc., 10 Central Street, Framingham, MA 01701, dated June 14, 2005 with
revisions on July 17, 2006 and elevations submitted to the Planning Board at the September
7, 2006 meeting ("the site plans"). Revised Plans reflecting all conditions and incorporating
by reference this decision must be submitted to and approved by the City Planner for
consistency with this decision prior to the issuance of a building permit.
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 for review and
approval. Any waiver of conditions contained within shall require the approval of the
Planning Board.
3. Construction Practices
All construction shall be carried out in accordance with the following conditions:
a. Exterior construction work shall not be conducted between the hours of 5:00 PM and
8:00 AM the following day on weekdays and Saturdays or at any time on Sundays or
Holidays. Any interior work conducted during these times will not involve heavy machinery
which could generate disturbing noises.
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.
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
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City of Salem.
f. All construction vehicles left overnight at the site, must be located completely on the site.
g. A Construction Management Plan and Construction Schedule shall be submitted by the
Applicant prior to the issuance of a building permit. Included in this plan, but not limited
to, shall be information regarding how the construction equipment will be stored, a
description of the construction staging area and its location in relation to the site, and
where the construction employees will park their vehicles. The plan and schedule shall be
submitted and approved by the City Planner prior to the issuance of a Building Permit.
All storage of materials and equipment will be on site.
h. Special attention shall be paid by the developer to locate the statue of St. Joseph reported
to be buried on the site. If said statue is located, the Applicant shall work with the
Archdiocese of Boston to resolve its status, and if feasible, as determined by the City
Planner based on documentation from the Applicant to preserve it in accordance with the
requirements of the Archdiocese.
4. Clerk of the Works
A Clerk of the Works shall be provided by the City, at the expense of the Applicant, its
successors or assigns, as is deemed necessary by the City Planner.
5. Traffic Mitigation
The Applicant agrees to contribute $20,000 toward a study/design of intersection and traffic
improvements at Lafayette Street. Such payment shall be made to the City upon the
Applicant's receipt of a building permit for the construction of the new building proposed for
the site.
6. Fire Department
All work shall comply with the requirements of the Salem Fire Department prior to the
issuance of any building permits.
7. Building Inspector
All work shall comply with the requirements of the Salem Building Inspector.
8. Zoning Board of Appeals
The terms of the Zoning Board of Appeals conditional approval for a height variance for the
site are incorporated into this decision, in their entirety.
9. Board of Health
a. The individual presenting the plan to the Board of Health must notify the Health Agent of
the name, address, and telephone number of the project (site) manager who will be on site
and directly responsible for the construction of the project.
b. If a DEP tracking number is issued for the site under the Massachusetts Contingency
Plan, no structure shall be constructed until the Licensed Site Professional responsible for
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the site certifies that soil and ground water for the entire site meets the DEP standards for
the proposed use.
c. The developer shall adhere to the drainage plan as approved by the City Engineer.
d. The developer shall employ a licensed pesticide applicator to exterminate the area prior
to construction, demolition, and/or blasting and shall send a copy of the exterminator's
invoice to the Health Agent
e. The developer shall maintain the area free from rodents throughout construction.
f. The developer shall submit to the Health Agent a written plan for dust control and street
sweeping which will occur during construction.
g. The developer shall submit to the Health Agent a written plan for containment and
removal of debris, vegetative waste, and unacceptable excavation material generated
during demolition and/or construction.
h. The Fire Department must approve the plan regarding access for fire fighting.
i. Noise levels from the resultant establishment(s) generated by operations, including but
not limited to refrigeration and heating, shall not increase the broadband sound level by
more than 10 dB(A) above the ambient levels measured at the property line.
j. The developer shall disclose in writing to the Health Agent the origin of any fill material
needed for the project.
k. If a rock crusher is on site, a plan for placement of the crusher must be approved by the
Health Agent prior to placement and use.
1. Plans for food a establishment must be presented to the Health Agent and approved prior
to construction.
m. The resultant establishment(s) shall dispose of all waste materials resulting from its
operations in an environmentally sound manner as described to the Board of Health.
n. The developer shall notify the Health Agent when the project is complete for final
inspection and confirmation that above conditions have been met.
10. Utilities
a. Utility installation shall be reviewed and approved by the City Engineer prior to the
issuance of a Building Permit. All on site electrical utilities shall be located underground.
b. The Applicant shall clean the drain line on Dow Street downstream from the work site to
Salem St. preventing any debris from entering the downstream pipes.
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11. Department of Public Services
The Applicant shall comply with all requirements of the Department of Public Services
12. Signage
Proposed signage shall be reviewed and approved by the City Planner and the Sign Review
Committee.
13. Lighting
a. No light shall cast a glare onto adjacent parcels or adjacent rights of way.
b. A final lighting plan shall be submitted to the City Planner for review and approval prior to
the issuance of a building permit.
c. After installation, lighting shall be reviewed and approved by the City Planner, prior to the
issuance of a Certificate of Occupancy.
14. HVAC
If an HVAC unit is located on the roof or site, it shall be visually screened. The method for
screening the unit shall be submitted to the City Planner for review and approval prior to
installation.
15. Lafayette Park
The Applicant its successors and assigns (if not defined in paragraph one) agrees to
contribute $1,500.00 per year to the City of Salem for the purpose of creating a fund for the
ongoing maintenance and upkeep of Lafayette Park. Such payment shall be made to the
Department of Planning and Community Development commencing upon the receipt of a
building permit for the construction of the new building proposed for the site and on June 1
of each year thereafter.
16. Landscaping
a. All landscaping shall be done in accordance with the approved set of plans, with the
following revision: the Applicant shall locate columnar trees along the perimeter of the
site where they believe they are most appropriate and shall submit a revised landscaping
plan reflecting this placement to the City Planner for review and approval, prior to the
issuance of a building permit.
b. Trees shall be a minimum diameter of 3 1/2" dbh (diameter breast height).
c. Maintenance of landscape vegetation shall be the responsibility of the Applicant, his
successors or assigns.
d. Any street trees removed as a result of construction shall be replaced. The location of any
replacement trees shall be approved by the City Planner prior to replanting.
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e. Final completed landscaping, done in accordance with the approved set of plans, shall be
subject to approval by the City Planner prior, for consistency with such plans, to the
issuance of a Certificate of Occupancy.
f. Fencing shall be installed along the property line on Salem Street and directly abutting the
residences on Dow Street. The section of fencing along Salem Street shall be a four-foot
black industrial grade aluminum. The section of fencing along the residences along Dow
Street shall be wooden. Details and specifications for the fencing shall be submitted to the
City Planner for review and approval prior to the issuance of any building permits.
17. Maintenance
a. Refuse removal, ground maintenance and snow removal shall be the responsibility of the
Applicant, 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. The Applicant,
his successors or assigns, shall guarantee all trees and shrubs for a two- (2) year period, from
issuance of the Certificate of Occupancy and completion of planting.
18. As-built Plans
As-built Plans, stamped by a Registered Professional Engineer, shall be submitted to the
Department of Planning and Community Development and Department of Public Services
prior to the issuance of Certificates of Occupancy.
The As-Built plans shall be submitted to the City Engineer in electronic file format suitable
for the City's use and approved by the City Engineer, prior to the issuance of Certificates of
Occupancy.
A completed tie card, a blank copy (available at the Engineering Department) and a
certification signed and stamped by the design engineer, stating that the work was completed
in substantial compliance with the design drawing must be submitted to the City Engineer
prior to the issuance of Certificates of Occupancy; as well as, any subsequent requirements
by the City Engineer.
19. Building Materials
Illustrations of exterior building materials shall be submitted to the City Planer for approval
prior to the issuance of a Building Permit.
20. Violations
Violations of any condition contained herein shall result in revocation of this permit by the
Planning Board, unless the violation of such condition is waived by a majority vote of the
Planning Board.
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 co
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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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Special Conditions for St. Joseph's Church
Construction Practices - Special attention shall be paid by the developer to locate the
statue of St. Joseph reported to be buried on the site. If said statue is located, the
Applicant shall work with the Archdiocese of Boston to resolve its status, and if feasible,
as determined by the City Planner based on documentation from the Applicant to
preserve it in accordance with the requirements of the Archdiocese.
Traffic Mitigation - The Applicant agrees to contribute$20,000 toward a study/design
of intersection and traffic improvements at Lafayette Street. Such payment shall be made
to the City upon the Applicant's receipt of a building permit for the construction of the
new building proposed for the site.
Utilities - Utility installation shall be reviewed and approved by the City Engineer prior
to the issuance of a Building Permit. All on site electrical utilities shall be located
underground.
Utilities - The Applicant shall clean the drain line on Dow Street downstream from the
work site to Salem St. preventing any debris from entering the downstream pipes.
Lafayette Park - The Applicant its successors and assigns (if not defined in paragraph
one) agrees to contribute$1,500.00 per year to the City of Salem for the purpose of
creating a fund for the ongoing maintenance and upkeep of Lafayette Park. Such
payment shall be made to the Department of Planning and Community Development
commencing upon the receipt of a building permit for the construction of the new
building proposed for the site and on June 1 of each year thereafter.
Landscaping - All landscaping shall be done in accordance with the approved set of
plans, with the following revision: the Applicant shall locate columnar trees along the
perimeter of the site where they believe they are most appropriate and shall submit a
revised landscaping plan reflecting this placement to the City Planner for review and
approval, prior to the issuance of a building permit.
Landscaping - Any street trees removed as a result of construction shall be replaced. The
location of any replacement trees shall be approved by the City Planner prior to
replanting.
Landscaping - Fencing shall be installed along the property line on Salem Street and
directly abutting the residences on Dow Street. The section of fencing along Salem Street
shall be a four-foot black industrial grade aluminum. The section of fencing along the
residences along Dow Street shall be wooden. Details and specifications for the fencing
shall be submitted to the City Planner for review and approval prior to the issuance of any
building permits.
Building Materials - Illustrations of exterior building materials shall be submitted to the
City Planer for approval prior to the issuance of a Building Permit.
spP, PUD . - — -
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COMMONWEALTH OF MASSACHUSETTS
ESSEX,SS. SUPERIOR COURT / �s
CIVIL ACTION NO:
WILLIAM DZIERZEK,ERIC EASLEY,JOHN GOFF, )
DOCTOR MIROSLAW KANTOROSINSKI,LINDA )
LOCKE,ANTHONY MIRABTTO,LINDA MIRABITO, )
SOLANGE MARCHAND,JEAN MARTIN,NANCY A. )
MOORE,THOMAS STRUCKMAN,MARIA )
TRINDADE,RODRIGO TRINDADE,LAURENT )
OUELLETTE,ANA PANIAGUA,DIONICIA FLORIAN,
ANTOINETTE C. SANCHEZ,JANE E. GAMMON, ) '•
BRIAN TASHJIAN, CHRISTOPHER KNIGHT,ROBERT)
BOZARJIAN,ELIZABETH BOZARJIAN,JULIAN ) v ro
NENSHATI,DAVID T. RAMSEY, JEAN E. RAMSEY, ) 4' Lj
Na
SCOTT GALBER,T.ERIC BERUBE,DOMENICA ) r C'
INGEMI,STEPHEN C.INGEMI, ROBERSON D. ) C m
TRONCOSO,CLARIZA J.TRONCOSO,MARY C. )
LESCH, GARY R. JENKINS,PATRICIA O'BRIEN, >
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SHAWN M. O'BRIEN,RALPH BERRY,DOROTHY A. )
FORTIN,ROSARIO BELTRE,CONSTANCE SANFORD,)
and JORDAN CASTRO, PLAINTIFFS )
V. )
SALEM LAFAYETTE DEVELOPMENT,LLC,and )
EUGENE COLLINS,PAUL DURAND, TIMOTHY E. )
KAVANAGH,PAMELA LOMBARDINI,JOHN - - )
MOUSTAKIS,CHARLES PULEO,TIMOTHY REIDY, )
CHRISTINE SULLIVAN,and WALTER B. POWER,III, )
CHAIRMAN,BEING MEMBERS OF THE PLANNING )
BOARD OF THE CITY OF SALEM,MASSACHUSETTS,)
DEFENDANTS )
COMPLAINT PURSUANT TO M.G.L.CHAPTER 40A.SECTION 17
APPEALING SEPTEMBER 14-2006 SITE PLAN REVIEW/PLANNED UNIT
DEVELOPMENT DECISION OF THE SALEM PLANNING
BOARD CONCERNING 135 LAFAYETTE STREET,SALEM,MASSACHUSETTS
This is an appeal from a Site Plan Review/Planned Unit Development Decision of the
Salem,Massachusetts Planning Board(hereinafter"the Planning Board"or"the Board"),dated
September 14,2006 and filed with the Salem City Clerk on September 14,2006,concerning the
former St.Joseph's Church complex at 135 Lafayette Street, Salem,Massachusetts(hereinafter
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"the subject property","the St.Joseph's complex,"or"the St.Joseph's property')on the
grounds that said Planning Board Decision was arbitrary,capricious,unreasonable,violated due
process,exceeded the Board's authority,was based on legally and factually untenable grounds,
and was wrong as a matter of law.
A certified copy of said September 14,2006 Decision is attached hereto as Exhibit A.
PARTIES
1. Plaintiff,William Dzierzek,who resides at 146 Summer Street,Danvers,Massachusetts
01923,owns the real estate located at 157 Lafayette Street,Salem,Massachusetts, 10
Dow Street, Salem,Massachusetts,and 12 Dow Street, Salem,Massachusetts,all of
which abut the subject property,and 176 Lafayette Street, 182 Lafayette Street,and 7
Cedar Street, all in Salem,Massachusetts,which properties are all located in the
immediate neighborhood.
2. Plaintiff,Eric Easley,who resides at 145 Spoffard Road,Boxford,Massachusetts 01921,
owns the real estate located at 266 Washington Street, Salem,Massachusetts,65 Harbor
Street, Salem,Massachusetts,73 Harbor Street,Salem,Massachusetts, and 38 Salem
Street, Salem,Massachusetts,which properties are located within the 300 foot notice
requirement of the Salem ZBA.
3. Plaintiff,John Goff,is a preservation architect and former Executive Director of Historic
Salem Inc.,who,together with his wife,owns and resides at 194 Lafayette Street, Salem
Massachusetts 01970,which property is also located in the immediate neighborhood.
4. Plaintiff,Dr.Miroslaw Kantorosinski,who resides at 8 Almeda Street, Salem,
Massachusetts 01970,is the owner of 5-5A Ropes Street, Salem,Massachusetts,which
abuts the subject property,and 8-10 Porter Street Court, Salem,Massachusetts,which is
located one block from the subject property,and is located within the 300 foot notice
requirement of the Salem ZBA.
5. Plaintiff,Linda Locke,who resides at 1 Pickering Street, Salem,Massachusetts 01970,
owns 44-46 Dow Street, Salem,Massachusetts,7 Palmer Street, Salem,Massachusetts,
and 13-15 Palmer Street, Salem,Massachusetts,which properties are all within the 300
foot notice requirement of the Salem ZBA.
6. Plaintiffs,Anthony Mirabito and Linda Mirabito,who reside at 8 Nichols Lane,
Middleton,Massachusetts 01949,own 16 Porter Street,Salem,Massachusetts,which
property is located within the 300 foot notice requirement of the Salem ZBA.
7. Plaintiff,Solange Marchand,owns and resides at 159 Lafayette Street,Salem,
Massachusetts 01970,which property is an abutter to an abutter of the subject property,
and is within the 300 foot notice requirement of the Salem ZBA.
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8. Plaintiff,Jean Martin,who resides at 24 Leavitt Street,Salem,Massachusetts 01970,
owns(together with her husband)24 Leavitt Street,Salem,Massachusetts,which is
located in the immediate neighborhood,and solely owns 34 Park Street, Salem
Massachusetts,which is within the 300 foot notice requirement of the Salem ZBA.
9. Plaintiffs,Nancy A.Moore and Thomas Struckman,who reside at 59 Lexington Street,
Woburn,Massachusetts 01801,own the real estate located at 39 Prince Street, Salem,
Massachusetts,which is also located in the immediate neighborhood.
10. Plaintiffs,Maria Trindade and Rodrigo Trindade,own and reside at 40-42 Dow Street,
Salem,Massachusetts 01970,which property is within the 300 foot notice requirement of
the Salem ZBA.
11. Plaintiff,Laurent Ouellette,who resides at 18 Hershey Street, Salem,Massachusetts
01970,owns 1 Harbor Street,Salem,Massachusetts,which property is within the 300
foot notice requirement of the Salem ZBA.
12. Plaintiffs,Ana Paniagua and Dionicia Florian,own 16 Dow Street,Salem, Massachusetts
01970,which property abuts the subject property. Ana Paniagua resides at 1000 Loring
Avenue,apt.B91,Salem,Massachusetts 01970 and Dionicia Florian resides at said 16
Dow Street, Salem,Massachusetts 01970.
13. Plaintiff,Antoinette C. Sanchez,owns and resides at 20 Dow Street,Salem,
Massachusetts 01970,which property abuts the subject property.
14. Plaintiff,Jane E. Gammon,owns and resides at unit 1, 160 Lafayette Street, Salem,
Massachusetts 01970,which property is within the 300 foot notice requirement of the
Salem ZBA.
15. Plaintiff,Brian Tashjian,owns and resides at 30 Park Street, Salem,Massachusetts
01970,which property is within the 300 foot notice requirement of the Salem ZBA.
16. Plaintiff,Christopher Knight,owns and resides at unit 2a,56 Ward Street Salem,
Massachusetts 01970,which property is within the 300 foot notice requirement of the
Salem ZBA.
17. Plaintiffs,Robert and Elizabeth Bozarjian,reside at 20 Clark Avenue, Salem,
Massachusetts 01970,and own 9 Park Street, Salem,Massachusetts and 10-12 Park
Street, Salem Massachusetts,which properties are located within the 300 foot notice
requirement of the Salem ZBA.
18. Plaintiff,Julian Neushati,who resides at 34 Pitman Road,Swampscott,Massachusetts
01907,owns 3 Ropes Street, Salem,Massachusetts 01970,which property is located
within the 300 foot notice requirement of the Salem ZBA.
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19. Plaintiffs,David T.Ramsey and Jean E.Ramsey,who reside at 58 Gregory island Road,
South Hamilton,Massachusetts 01982,own 12 Palmer Street,Salem,Massachusetts and
15-17 Leavitt Street,Salem,Massachusetts,which properties are located within the 300
foot notice requirement of the Salem ZBA.
20. Plaintiff, Scott Galber,who resides at unit 5,22 Winter Street, Salem,Massachusetts,
01970,owns 65 Harbor Street,69-71 Harbor Street,22-24 Prince Street,and 27 Salem
Street;all in Salem,Massachusetts,which properties are located within the 300 foot
notice requirement of the Salem ZBA.
21. Plaintiff,T.Eric Berube,owns and resides at 191 Lafayette Street, Salem,Massachusetts
01970,which property is located in the immediate neighborhood.
22. Plaintiffs,Stephen C.Ingemi and Domenica Ingemi,own and reside at 7 Fairfield Street,
Salem,Massachusetts 01970,which property is located in the immediate neighborhood.
23. Plaintiffs,Roberson D.Troncoso and Clariza J.Troncoso,own and reside at unit 4, 10
Porter Street, Salem,Massachusetts 01970,which property is located in the immediate
neighborhood.
24. Plaintiff,Mary C.Lesch,owns and resides at 15 Cedar Street,Salem,Massachusetts
01970,which property is located in the immediate neighborhood.
25. Plaintiff,Gary R.Jenkins,owns and resides at 5 Pond Street,Salem,Massachusetts
01970,which property is located in the immediate neighborhood.
26. Plaintiffs, Shawn M.O'Brien and Patricia D. O'Brien,own and reside at 21 Cedar Street,
Salem,Massachusetts 01970,and also own 23-25 Cedar Street, Salem,Massachusetts,
which properties are located in the immediate neighborhood.
27. Plaintiff,Ralph Berry,owns and resides at 3 Chase Street,Salem,Massachusetts 01970,
which property is located in the immediate neighborhood.
28. Plaintiff,Dorothy A.Fortin,owns and resides at 2 Chevy Street, Salem,Massachusetts
01970,which property is located in the immediate neighborhood.
29. Plaintiff,Rosario Beltre,owns and resides at 15 Harrison Ave,Salem,Massachusetts,
01970,which property is located in the immediate neighborhood.
30. Plaintiff,Constance Sanford,owns and resides at 19 Park Street,Salem,Massachusetts
01970,which property is located within the 300 foot notice requirement of the Salem
ZBA.
31. Plaintiff,Jordan Castro,who resides at 2 Station Road,Salem,Massachusetts 01970,
owns 15 %2 Palmer Street, Salem,Massachusetts,which property is located within the 300
foot notice requirement of the Salem ZBA.
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32. Defendant,Salem Lafayette Development,LLC(hereinafter"SLD'),is a non-profit
development corporation with headquarters at 84 State Street, Suite 600,Boston,
Massachusetts 02109;is the owner of the former St.Joseph's Church complex at 135
Lafayette Street, Salem,Massachusetts 01970;and is the recipient of the September 14,
2006 Site Plan Review/Planned Unit Development Decision from the Salem Planning
Board herewith being appealed.
33. Defendant,Eugene Collins,also known as Gene Collins(hereinafter"Mr. Collins'),who
resides at 63 Appleton Street,Salem,Massachusetts 01970,is a member of the Salem
Planning Board who voted to approve said September 14,2006 Decision.
34. Defendant,Paul Durand(hereinafter"Mr.Durand'),who(according to information
obtained from the Salem Planning Board)resides at 209 Essex Street, Salem,
Massachusetts 01970,is a member of the Salem Planning Board who voted to approve
said September 14,2006 Decision.
35. Defendant,Timothy E.Kavanagh(hereinafter"Mr.Kavanagh'),who resides at 14 May
Street,Salem,Massachusetts 01970,is a member of the Salem Planning Board who voted
to approve said September 14,2006 Decision.
36. Defendant,Pamela Lombardini,also known as Pam Lombardini (hereinafter"Ms.
Lombardini"),who resides at 3 Larch Avenue, Salem,Massachusetts 01970,is a member
of the Salem Planning Board who voted to approve said September 14,2006 Decision.
37. Defendant,John Moustakis(hereinafter"Mr. Moustakis"),who resides at 23 Dearborn
Street, Salem,Massachusetts 01970,is a member of the Salem Planning Board who voted
to approve said September 14,2006 Decision.
38. Defendant, Charles Puleo,also known as Chuck Puleo(hereinafter"Mr. Puleo'),who
resides at 5 Freeman Road,Salem,Massachusetts 01970,is a member of the Salem
Planning Board who voted to approve said September 14,2006 Decision.
39. Defendant,Timothy Reidy,also known(according to information obtained from the
Salem Planning Board)as Tim Reidy and/or Tim Ready(hereinafter"Mr.Reidy),who
resides at 22 Sable Road, Salem,Massachusetts 01970,is a member of the Salem
Planning Board who voted to approve said September 14,2006 Decision.
40. Defendant, Christine Sullivan(hereinafter"Ms. Sullivan"),who resides at 111 Federal
Street,Salem,Massachusetts 01970,is a member of the Salem Planning Board who voted
to approve said September 14,2006 Decision.
41. Defendant,Walter B.Power,III(hereinafter"Mr.Power"),who resides at 18 Loring
Avenue,Salem,Massachusetts 01970,is the Chairman of the Salem Planning Board. He
voted to approve said September 14,2006 Decision.
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42. All of the foregoing Plaintiffs have standing to bring this action,as all are substantially
aggrieved by the September 14,2006 Site Plan Review/Planned Unit Development
Decision of the Salem Planning Board-
JURISDICTION
oardJURISDICTION
43. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the
Massachusetts General laws.
44. This case is timely,as it has been filed within twenty(20)days from September 14,2006,
which is when the September 14,2006 Site Plan Review/Planned Unit Development
Decision was filed with the Salem City Clerk.
PROCEDURAL FMSTORY AND FACTUAL ALLEGATIONS
45. The St.Joseph's property consists of a parking lot and 4 buildings on approximately 2.6
acres of land at 135 Lafayette Street,Salem,Massachusetts. The four buildings consist
of the former St. Joseph's church,the 3-story former rectory,the 3-story former St.
Joseph's school,and the 3-story former convent.
46. Said property is a basically rectangular parcel bounded by Lafayette Street to the west,
Harbor Street to the north, Salem Street to the east, and Dow Street to the south,and is
located in both the so-called Point and Lafayette Street neighborhoods.
47. Except for three 2 'h- story residential buildings fronting on the northerly side of Dow
Street at the southeast comer of the site,the St. Joseph's property comprises the entire
rectangular block formed by said streets.
48. At the southwest comer of said site is the confluence of Lafayette, Washington,and Dow
Streets,which 3-way intersection constitutes one of the most congested and dangerous
intersections in Salem.
49. One block from the 3-way intersection of Lafayette,Washington,and Dow Streets,
approximately 100 yards to the South from the St.Joseph's site(ie.towards Marblehead),
is the intersection of Palmer and Lafayette Streets,which is another of the busiest and
most dangerous intersections in Salem,being a major egress from the Point
neighborhood.
50. All of the former St.Joseph's structures at the site were constructed prior to the
enactment of the current Salem Zoning Ordinance in 1965,and thus,all four buildings
represent prior non-conforming structures.
51. By far,the most architecturally significant building at the site is the former St.Joseph's
Church,which is an important example of the so-called International Style,a style of
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modern architecture which is unique in Salem. As such,it makes an important
contribution to Salem's world-renowned stock of 11"', 18', and 19"century architecture.
52. There is no question that the former St. Joseph's Church is eligible for inclusion in the
National Register of Historic Places maintained by the United States Department of the
Interior.
53. The former St.Joseph's school building and convent have no particular architectural
significance.
54. The church,rectory,and convent have been vacant since the parish closed on or about
August 15,2004. The school has been vacant since it relocated to the St.James parish on
Federal Street beginning in August or September of 2004.
55. The entire St.Joseph's property is located in an R-3 Zoning District.
56. Pursuant to the existing R-3 zoning,a maximum of 33 residential units can be
constructed at the site as a matter of right,with new construction not to exceed 45 feet in
height and 3 '/z stories.
57. The overwhelming majority of the buildings on the surrounding Lafayette,Dow, Salem,
and Harbor Streets,as well as those on Washington Street opposite the Lafayette Street
side of the property(ie.across from the pocket park)are either 2 '/s or 3-story residential
dwellings 45 feet in height or less. As such,the overwhelming majority of the buildings
on said surrounding streets conform to the 3 %:story and 45-foot maximums pursuant to
the existing R-3 zoning in both respects.
58. The grade of the parking lot at the southern third of the site is already approximately 4
feet above the grade of the 2 '/:-story residential buildings fronting on Dow Street at the
southeast corner of the site.
59. In the Spring of 2005 the Archdiocese of Boston sold the entire St.Joseph's property to
the Planning Office of Urban Affairs(hereinafter"POUR"),a private non-profit
corporation,for$2,000,000.00,which thereupon created Salem Lafayette Development
Corporation,LLC(hereinafter"SLD')to develop the site.
60. The head of the Archdiocese of Boston,Cardinal Sean O'Malley,serves in his individual
capacity as the chief executive officer of POUA.
61. On Thursday,July 27,2006,the Planning Board of the City of Salem opened the first of
three public hearings on SLD's application for a Planned Unit Development(hereinafter
"PUD')to develop the St.Joseph's site primarily into 97 units,which represents 64 units
more than the 33 maximum number of residential units allowed by the current R-3 zoning
for that district.
7
62. The proposed project basically calls for the razing of the former convent and landmark
Church,the development of the former rectory into 8 residential units,the conversion of
the former school into 14 residential units,and the construction of a new, 6-story,65-foot
tall building immediately to the right(ie. south)of the rectory to contain 75 units,64 of
which are proposed to be residential and 11 are proposed to be commercial,including an
18,000 square foot Community Life Center on the first floor,which would also double as
a Senior Center.
63. Unlike the existing cruciform church,which was built with its narrow(i.e. 40-foot wide)
nave perpendicular to Lafayette Street,the proposed new,65-foot,6-story stricture is to
be built parallel to Lafayette Street,approximately 180 feet in length,within a few feet of
the existing sidewalk.
64. The width of the proposed new structure is approximately 120 feet,or three times wider
than the existing 40 foot wide nave of the former St. Joseph's Church building.
65. Also unlike the existing cruciform church, all six floors of the new 65-foot structure will
be occupied 24 hours a day,7 days a week,52 weeks a year,which is a substantial
increase in use compared to the former St. Joseph's Church,whose single-story interior
Mace(albeit 63 feet tall)was primarily used for brief periods only on Saturday
afternoons, Sunday mornings,and holy days.
66. Of the 97 residential units, SLD indicated that"approximately"30 units will be rented,
and the balance of 67 units will be sold as condominiums.
67. A major component of SLD's PUD application was its promise to dedicate 45%of the 97
residential units,or 44 units,for"affordable housing",which was later scaled back to
35%,or approximately 34 units, at the final Planning Board hearing on September 7,
2006.
68. On information and belief, said 34 units of affordable housing,whether rented or sold as
condominiums,will involve a discount of approximately 301/o below prevailing market
rates,for which eligibility will be based on certain income limitations of the buyer or
tenants.
69. Thus,in essence, SW's PUD application seeks an approximate 194%increase in
density of 64 residential units over the 33 maximum number of residential units permitted
by the existing R-3 zoning for the entire site,in return for which 33 of the extra 64 units
would be sold or rented as affordable housing at a discount(in either event)of
approximately 301/o below prevailing market rates.
70. The balance of 31 units of the 64 units exceeding the current R-3 zoning would be sold at
market rates,in addition to the 33 residential units already permitted by the existing R-3
zoning,or altogether 64 units at market rates.
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71. Said 194%increase in residential density above the 33 maximum number of residential
units does not even include the proposed 18,000 square foot Community Life Center,
which includes the so-called Senior Center.
72. The other major component of SLD's PUD application is the proposed 18,000 square
foot Community Life Center to be sold to the City of Salem. Although the purchase price
has yet to be finalized,the figure discussed at the three Planning Board hearings was
approximately$5,000,000.00.
73. None of the several Salem City Councilors who attended the three Planning Board
hearings seemed to be aware of the details of said purchase,no one seemed to know how
the City(which is,and has been,under severe financial constraints)is going to afford the
purchase price;and no one could explain what would happen to the project if the City
couldn't afford to buy said 18,000 square feet of first floor space.
74. Also complicating this issue is the fact that a substantial majority of Salem's senior
citizens who currently use the existing Senior Center on Broad Street are vehement in
their opposition to relocating the existing Senior Center on Broad Street to the St.
Joseph's site.
75. A multi-page petition signed by approximately 300 Salem senior citizens opposing the
proposed new Senior Center at the St.Joseph's site was submitted at the third Planning
Board hearing on September 7,2006,which opposition was re-affirmed in a heavily
publicized meeting conducted by Mayor Driscoll at the existing Broad Street Senior
Center a few weeks later.
76. Notwithstanding that approval of its PUD application will circumvent much of the
existing R-3 zoning for the district, SLD still needed two variances from the Salem ZBA,
one to increase the 45 foot maximum height restriction by 20 feet,to 65 feet,which
represents a 44.44%increase,and the other to increase the current maximum of 3 %z
stories to 6 stories,which represents a 58.33%increase.
77. On August 23,2006 the Salem Zoning Board of Appeal(hereinafter"ZBA")voted to
grant said variances. A copy of the August 24,2006 ZBA Decision,entered in the Salem
City Clerk's office on September 5,2006,is attached hereto as Exhibit B.
78. On September 22,2006 forty-one individuals,consisting of owners of property directly
abutting the former St. Joseph's complex,owners of property within the 300 foot notice
requirement of the Salem ZBA,and owners of property within the immediate
neighborhood,filed suit in the Essex Superior Court timely appealing said August 24,
2006 ZBA Decision,which action is entitled William Dzierzek et al vs. Salem Lafayette
Development,LLC et al,Civil Action No. 2006-18200.
79. On September 6,2006 SLD requested a continuance of a vote of the Salem Historical
Commission on its petition for a waiver of the 6-month demolition delay ordinance when
it became clear that the Commission regarded St.Joseph's Church to be an extremely
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significant building and would not waive the demolition delay ordinance if a vote were
then taken on SLD's application.
80. On September 7,2006 the Salem Planning Board voted to approve SLD's PUD
application. The September 14,2006 Site Plan Review/Planned Unit Development
Decision(Exhibit A)reflecting that vote,which is herewith being appealed from,was
entered in the office of the Salem City Clerk at 5:27 p.m.on September 14,2006.
81. The Salem Planning Board is a"special permit granting authority"within the meaning of
Section 17 of Chapter 40A of the Massachusetts General Laws with respect to said
September 14,2006 Site Plan Review/Planned Unit Development Decision.
82. As to each of the following Counts,the Plaintiffs reaffirm,re-allege,and incorporate all
of the prior allegations contained in paragraphs 1-81 inclusive above.
ARGUMENT
COUNTI
SLD's PUD does not comply with the statutory purpose
of a Planned Unit Development as defined in Section 7-15(b)
of the Salem Zoning Ordinance.
83. Section 7-15 of the Salem Zoning Ordinance,entitled"Planned unit development,"
regulates PUDs.
84. Section 7-15(b)defines the statutory purpose of a PUD as follows:
"The planned unit development district is designed
to provide various types of land use which can be
combined in compatible relationship with each
other as part of a totally planned development. It is
the intent of this district to ensure compliance with
the master plan and good zoning practices..."
Emphasis added
85. Clearly the components of SLD's PUD approved by the Salem Planning Board in its
September 14,2006 Decision do not represent"various types of land use"which are
being combined"in compatible relationship with each other."
86. The"types"of proposed land use are not"various,"but are merely two-fold: namely, 86
residential units and 11 commercial units.
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87. Even more to the point,there is no compatibility between the relationships of the
proposed 86 residential units,as 8 units are proposed to be located in the 3-story former
St.Joseph's rectory,which structure conforms with the current 3 %i story and 45-foot
height restriction of the existing R-3 zoning, 14 units are proposed to be located in the 3-
story,former St.Joseph's school,which structure likewise conforms to height and
number-of-story restriction in the existing R-3 zoning,and 64 units are proposed to be
located in the proposed 6-story,65-foot tall new structure,whose scale,dimensions,and
density completely overwhelms the other two structures of the project.
88. SLD touts the fact that 33 of the 86 residential units will represent"affordable housing,"
but that is not"a various type of use"within the meaning of Section 7-15(b).
89. Similarly,there is no compatibility between the 1 I commercial units,which consists of
one 18,000 square foot Community LifelSenior Center and ten other commercial units,
which are far smaller in scale and dimensions.
90. Section 7-15(b)also recites,in relevant part,that another primary purpose of a Planned
Unit Development is as follows:
The advantages which are intended to result from
the application of the planned unit development
district are to be ensured by the adoption of a
precise developmentplan with a specific time limit
for commencement of construction
91. With respect to a primary component of SLD's PUD,namely the 18,000 square foot
Community Life and Senior Center,there was/is no precision whatsoever concerning all
of the particulars of said transaction,even apart from the fact that an overwhelming
majority of Salem's Senior citizens who currently use the existing Senior Center on
Broad Street are emphatic in their opposition to relocating the existing Senior Center on
Broad Street to the proposed new Senior Center at the St. Joseph's site.
92. None of the several Salem City Councilors who attended the three Planning Board
hearings seemed to be aware of the details of said purchase,or the annual costs to
maintain same;no one(including the City Councilors)seemed to know how the City of
Salem(which is,and has been,under severe financial constraints)is going to afford the
purchase price or annual maintenance costs;and no one(including the City Councilors)
seemed to know what would happen if this material component of the PUD could not be
realized,either because the City could not afford the estimated$5,000,000.00 purchase
price,because of strong opposition to the acquisition,or otherwise.
93. The September 14,2006 Site Plan Review/Planned Unit Decision also violates the
express requirements of Section 7-15(b)of the Salem Zoning Ordinance because there is
no"adoption of a precise development plan with a specific time limit for commencement
of construction."
Emphasis added
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94. Similarly said September 14,2006 Decision does not demonstrate"compliance with the
Master Plan"of the City of Salem,nor does it represent"good zoning practices." Indeed,
with respect to the latter,it increases density to 97 units, 64 units above the 33-unit
maximum for the site pursuant to the existing R-3 zoning,representing a 194%increase;
it increases the current 3 ''/:maximum number of stories to 6 stories,representing a
44.44%increase;and it increases the current 45 height maximum to 65 feet,representing
a 5833%increase,among other deviations from the existing R-3 zoning.
95. For these and other reasons the Salem Planning Board acted willfully and capriciously,
and exceeded its authority,in approving its September 14,2006 Site Plan
Review/Planned Unit Development Decision.
COUNT U
The September 14,2006 Site Plan Review/Planned Unit
Development Decision is not in harmony with the Salem Zoning .
Ordinance and the Master Plan of the City of Salem,as required
By Section 7-15(c)(1)of the Salem Zoning Ordinance.
96. Section 7-15(c)(1)of Salem Zoning Ordinance provides the following in relevant part:
(c)All uses or any combination thereof permitted in
R-3...Districts may be allowed in a planned unit
development,subject to the following limitations of
uses:
(1)There can be a multiplicity of types of
residential development provided that, at the
boundaries with existing residential development,
where typical development is permitted,the form
and type of development on the planned unit
development site boundary are compatible with the
existing or potential development of the
surrounding neighborhoods.
Emphasis added
97. It is absolutely clear that the proposed 6-story,65-foot tall new structure is incompatible
with the existing development of the surrounding Point and Lafayette Street
neighborhoods,including,in particular,the existing residential development at the very
boundaries of the St.Joseph's site.
98. The overwhelming majority of the buildings on the surrounding Lafayette,Dow, Salem,
and Harbor Streets,as well as those on Washington Street opposite the Lafayette Street
side of the complex(ie. across from the pocket park)are either 2 '/2 or 3-story residential
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dwellings 45 feet in height or less. As such,said overwhelming majority of buildings on
said surrounding streets conform to the existing R-3 zoning in both respects.
99. For this reason alone,among other reasons,the Salem Planning Board acted willfully and
capriciously,and exceeded its authority,in approving its September 14,2006 Site Plan
Review/Planned Unit Development Decision.
COUNT III
The September 14,2006 Site Plan Review/Planned Unit
Development Decision does not comply with the height limitations
of the R-3 zoning district in which the planned unit development
is located,and thus,is a clear violation of the Salem Zoning Ordinance.
100. Section 7-15(c)(4)is another of the 5 express limitations goveming approval of planned
unit developments.
101. Section 7-15 (c)(4)reads in relevant port:
Height limitations shaU be in accordance with the
zoning district in which the planned unit
development is located.
Emphasis added
102. The R-3 height restrictions for the St. Joseph's site is 45 feet. The maximum number of
stories is 3 %2 stories.
103. The proposed new structure is 65 feet tall, or 20 feet above the existing maximum,
representing a 44.44%increase. The proposed new structure is also 6 stories in height,
or 2 '/2 stories in excess of the existing R-3 maximum,representing a 5833% increase.
104. Section 7-15(c)(4)refers to the height limitations of the eXLSting zoning;it does not refer
to height limitations which may be enlarged pursuant to a variance.
105. The August 24,2006 variances granted to SLD by the Salem Board of Appeal do not set
aside the requirement of Section 7-15(c)(4)that the proposed new construction not
exceed the existing height restrictions for the zoning district in which the planned unit
development is located.
106. For SLD to maintain that variances of the maximum height and number of story
restrictions of the Salem Zoning Ordinance by as much as 44.44% and 58.33%
respectively represents compliance with Section 7-15(c)(4)is circular reasoning of the
worst sort,and makes an intellectual mockery of the planned unit development process.
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107. For this reason alone,among other reasons,the Salem Planning Board acted willfully and
capriciously,and exceeded its authority,in approving its September 14,2006 Site Plan
Review/Planned Unit Development Decision.
COUNT IV
SLD has not demonstrated a reasonable relationship between the
proposed lot size and the usable and accessible open area within the
total development,and thus,violates Section 7-14(c)(5)of
the Salem Zoning Ordinance.
108. Section 7-15(c)(5)is another of the 5 express limitations governing approval of planned
unit developments.
109. Section 7-15(c)(5)provides in relevant part:
As a prerequisite,the developer shall demonstrate
that there is a reasonable relationship between the
proposed lot size and the usable and accessible
open area within the total development. An
individual lot shall be large enough to provide for
private open space associated with the living
accommodations.
Emphasis added
110. In point of fact there was no such demonstration,nor is there such a reasonable
relationship.
111. For this reason alone,among other reasons,the Salem Planning Board acted willfully and
capriciously,and exceeded its authority,in approving the September 14,2006 Site Plan
Review/Planned Unit Development Decision.
COUNT V
The September 14,2006 Site Plan Review/Planned Unit
Development Decision does not mage adequate provision
for usable open space,and thus,violates Section 7-15(6)(1)-(2)
of the Salem Zoning Ordinance.
112. Section 7-15(h)(l)-(2)provides the following in relevant part:
(h)Provision shall be made so that usable open
space shall be owned:
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(1)By the City of Salem for park,open space or
conservation use;
(2)By a corporation or trust owned or to be owned
by the owners of lots or residential units within the
land that may be approved by the planning board,
with provisions for limited easements for
recreational use by residents of the city,provided
that such ownership shall vest in sufficient rights to
enable it to enforce compliance with the restrictions
imposed by the planning board as condition of its
special permit:
113. In point of fact,there waslis no such required provision in the September 14,2006 Site
Plan Review/Planned Unit Development Decision of the Salem Planning Board.
114. Virtually all of the open space in the project is devoted to parking,which is not what
Section 7-15(h)(1)-(2)contemplates.
115. For this reason alone,among other reasons,the Salem Planning Board acted willfully and
capriciously,and exceeded its authority,in approving its September 14,2006 Site Plan
Review/Planned Unit Development Decision.
COUNT VI
SLD's proposed PUD doe not meet the three most fundamental
requirements of a planned unit development as provided in
Section 7-15(g)(l)-(3)inclusive of the Salem Zoning Ordinance.
116. Section 7-15(g)(l)-(3)of the Salem Zoning Ordinance provides that a special permit may
be granted by a two-thirds(2/3s)vote of the Salem Planning Board after notice and
public hearing(s),provided that all other requirements of Section 7-15 are complied with,
but only if the following three fundamental requirements are met:
(1)The proposed planned unit development is in
harmony with the purposes and intent of this
ordinance and the master plan of the City of
Salem and that it will promote the purpose of
this section [as defined in Section 7-15(b)];
(2)The mixture of uses in the planned unit
development is determined to be sufficiently
advantageous to render it appropriate to depart
from the normal requirements of the district;
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(3)The planned unit development would not result
in a net negative environmental impact
117. The September 14,2006 Site Plan Review/Planned Unit Development Decision,which
consists of 7 pages,contains absolutely no findings of fact whatsoever.
118. Indeed,after subtracting the six pages of largely boiler-plate conditions which are
routinely applied to all such projects,and the single-paragraph recording of the Planning
Board vote,which comprises pages 2-7 inclusive of said September 14,2006 Decision in
their entirely,one is literally left with a one-page decision,ie.page 1, for this
$26,000,000.00 proposed development.
119. Even that single-page is deceiving,in that much of page I of the September 14,2006
Decision is involved with such non-substantive matters as the title of the project,the
name and address of Salem Lafayette Development,LLC,the location_of the project,and
a brief, 11-line single-paragraph summary of the scope of the project.
120. The entire rest of page 1 of said September.14,2006 Decision boils down to the
following:
(1)The proposed planned unit development is in
harmony with the purpose and intent of this
ordinance and the master plan of the City of Salem
and that it will promote the purpose of this section.
(2)The mixture of uses in the planned unit
development is determined to be sufficiently
advantageous to render it appropriate to depart from
the normal requirements of the district.
Specifically,the project incorporates a Community
Life Center,as requested by the City,and mixed
income affordable housing providing substantial
public benefit
(3)The planned unit development would not result
in a net negative environmental impact Based on
the information from the Environmental Impact
Statement and plans,the project will result in an
increase in public recreational space,a decrease in
peak stormwater discharge rates and will improve
the vacant site significantly from its current
condition.
121. While said September 14,2006 Decision characterizes the foregoing three paragraphs as
findings,it is clear that they are nothing more than self-serving conclusions which simply
repeat the statutory language of Section 7-15(g)(1)-(3)inclusive,except for the addition
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of the second sentence in paragraph 2 of the Decision,namely"Specifically,the project
incorporates a Community Life Center,as requested by the City,and mixed income
affordable housing providing substantial public benefit,"and except for the addition of
the second sentence in paragraph 3,namely"Based on the [undisclosed] information
from the Environmental Impact Statement and plans,the project will result in public
recreational space,a decrease in peak stormwater discharge rates and will improve the
vacant site significantly from its current condition."
122. Even these two single-sentence additions are conclusionary,self-serving statements on
their face.
123. In point of fact, said September 14,2006 Site Plan Review/Planned Unit Development
Decision is not in keeping with the purposes and intent of the Salem Zoning Ordinance,
including(in particular)with respect to height,number-of-stories,and density,among
other issues.
124. Said September 14,2006 Site Plan Review/Planned Unit Development Decision is
likewise not in keeping with the 1996 Master Plan of the City of Salem,including in the
following material respects:
a. It does not"improve major vehicular routes through Salem"(page 19);
b. It does not"improve access...[to]the downtown"(page 19);
c. It does not improve"intra-city road linkages to enhance traffic efficiency and flow"
(page 20);
d. It does not reinforce"public institutional master plans"(page 26);
e. It does not"protect residential streets from commuter traffic"(page 31);
L It does not"improve appearance of entrance corridors"(page 31);
g. It does not"improve appearance of private property"(page 32);
h. It does not materially"improve maintenance of parks"with respect to the adjacent
park(page 37);
i. It does not"protect and improve areas of historic significance,"including(in
particular)by demolishing the landmark St Joseph's Church,which is eligible for
inclusion on the Nation Register of Historic Places maintained by the United States
Department of the Interior,and by overwhelming the scale and density of the historic
Point neighborhood(page 38);
j. It does not"improve efficiency of water and sewer system to guarantee public health
and safety"(page 41);and
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k. It does not improve"adaptive reuse of public buildings"(page 42).
125. The Plaintiffs aver that the mixture of uses in the planned unit development is not
sufficiently advantageous to render it appropriate to depart from the normal requirements
of the district,especially since said PUD has many significant deleterious effects on the
surrounding neighborhood,including with respect to density,scale,height,traffic,
parking>and adverse impact on neighborhood infrastructure,among other negative
effects.
126. The Plaintiffs further aver that the approved planned unit development will, in fact,result
in a significant net negative environmental impact on the surrounding neighborhood,
especially with respect to density,scale,height(including the consequent shadows cast
by the proposed new 6-story structure),traffic,parking,and adverse impact on
neighborhood infrastructure,among other serious negative effects.
127. With respect to traffic,even the Planning Board Chairman, Mr.Power,lamented the lack
of a traffic study at the third Planning Board hearing on September 7,2006,which he
noted is unprecedented for projects of this size,further stating that even much lesser
projects virtually always involve a traffic study.
128. Especially considering the huge volume of traffic on Washington and Lafayette Streets,
which are two of the City's primary entrance corridors,and that the 3-way intersection at
Dow,Lafayette,and Washington Streets,and the nearby 2-way intersection at Palmer
and Lafayette Streets,are two of the busiest and most dangerous intersections in the City,
the approval of said PUD without such a traffic study is all the more alarming.
129. With respect to the tripling of density of the SLD project,increased traffic not only
involves the increased traffic from 86 residential units and 10(conventional)commercial
units,but also the increased traffic from those using the 18,000 square foot Community
Life/Senior Center.
130. Said increased demands also apply to parking
131, At least one member of the Salem Planning Board made it clear that his mind was already
made up when he spoke at the first Planning Board hearing on July 27,2006 that he was
enthusiastically in favor of all aspects of the project even before the developer had
completed its presentation,or public comment(which ultimately lasted 3 evenings)had
begun.
132. The Planning Board.also began substantive discussion of the project at the second
Planning Board hearing on August 3,2006,even before the public comment period had
concluded,thus raising serious questions as to whether the public hearing process was a
sham to begin with.
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133. For the foregoing reasons alone,among other reasons,the Salem Planning Board acted
willfully and capriciously,and exceeded its authority,in approving its September 14,
2006 Site Plan Review/Planned Unit Development Decision.
RELIEF SOUGHT
The Plaintiffs respectfully request that this Court:
a. enter a Judgment in their favor annulling in full the September 14,2006 Site Plan
Review/Planned Unit Development Decision of the Salem Planning Board;
b. award the Plaintiffs cost and reasonable attorneys fees in connection with their
prosecution of this appeal;
c. grant such other relief as is just and expedient.
RespecMy submitted,
William Dzierzek et al
By their attorney,
October 2,2006
John H. Carr,Jr.,Esq.
9 North Street
Salem,MA 01970
978-825-0060
BBO#075281
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Site Plan Review/Planned Unit Development Decision
135 Lafayette Street.
September 14,2006
Salem Lafayette Development,LLC g
C/o Joseph Correnti,Esq. m �o .
63 Federal Street
N
Salem,MA 01970 t o
RE: 135 Lafayette Street/Former St. Joseph's Church site M3
Site Plan Review/Planned Unit Development cn m3
N
1
On Thursday,July 27, 2006, the Planning Board of the City of Salem opened a Public Hearing
under Sections 7-15 and 7-18 of the City of Salem Zoning Ordinance, Planned Unit
Development Special Permit and Site Plan Review, at the request of Salem Lafayette
!` .. Development, LLC,for the property located at 135 Lafayette Street.The proposed project
includes the razing of the former church and convent building, the renovation of the former
rectory and school buildings, and the construction of a new six-story building on the site. The
mixed-use development will include 97 units of housing and a Community Life Center.
Approximately thirty (30)units shall be rental units, and the approximately sixty-seven (67)
remaining units shall be condominiums. At least thirty-five (35)percent of the dwelling units on
the site shall be designated as affordable units. Hereinafter the term "Applicant"shall refer to the
Applicant, its successors or assigns.
The Public Hearing was continued to August 3,2006, September 7, 2006 and closed on
September 7,2006.The Planning Board hereby finds that the proposed project meets the
provisions of the City of Salem Zoning Ordinance, sec. 7-15 (g), as follows:
1) The proposed planned unit development is in harmony with the purpose and intent of this
ordinance and.the master plan of the City of Salem and that it will promote the purpose of
this section.
2). The mixture,of uses in the planned unit development is determined to be sufficiently
advantageous to render it appropriate to depart from the normal requirements of the
district. Specifically, the project incorporates a Community Life Center, as requested by
the City,and mixed income affordable housing providing substantial public benefit.
3) The planned unit development would not result in a net negative environmental impact.
`• Based on the information from the Environmental Impact Statement and plans,the
project will result in an increase in public recreational space, a decrease in peak
stormwater discharge rates and will improve the vacant site significantly from its current
condition.
At a regularly scheduled meeting of the Planning Board held on September 7, 2006,the Planning
Board voted by a vote of nine (9)in favor(Power,Moustakis,Collins,Kavanagh,Durand Puleo,
L,ombardini,Sullivan,Reidy), and none(0)opposed to approve the Site Plan Review and
Planned Unit Development application subject to the following conditions:
1. Conformance with the Plan
Work shall conform to the plans entitled,"St. Joseph's Redevelopment, Salem,
Massachusetts"Sheets C-1.1, 2.1,3.1,4.1,4.2 and 4.3 and,prepared by Samiotes
Consultants,Inc., 10 Central Street,Framingham,MA 01701,dated June 14,2005 with
revisions on July 17, 2006 and elevations submitted to the Planning Board at the September
7, 2006 meeting ("the site plans").Revised Plans reflecting all conditions and incorporating
by reference this decision must be submitted to and approved by the City Planner for
consistency with this decision prior to the issuance of a building permit.
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 for review and
approval. Any waiver of conditions contained within shall require the approval of the
Planning Board.
3. Construction Practices
All construction shall be carried out in accordance with the following conditions:
a. Exterior construction work shall not be conducted between the hours of 5:00 PM and
8:00 AM the following day on weekdays and Saturdays or at any time on Sundays or
Holidays. Any interior work conducted during these times will not involve heavy machinery
which could generate disturbing noises.
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.
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
2
City of Salem.
E All construction vehicles left overnight at the site,must be located completely on the site.
g. A Construction Management Plan and Constriction Schedule shall be submitted by the
Applicant prior to the issuance of a building permit. Included in this plan, but not limited
to,shall be information regarding how the construction equipment will be stored, a
description of the construction staging area and its location in relation to the site,and
where the construction employees will park their vehicles.The plan and schedule shall be
submitted and approved by the City Planner prior to the issuance of a Building Permit.
All storage of materials and equipment will be on site.
h. Special attention shall be paid by the developer to locate the statue of St. Joseph reported
to be buried on the site. If said statue is located,the Applicant shall work with the
Archdiocese of Boston to resolve its status, and if feasible, as determined by the City
Planner based on documentation from the Applicant to preserve it in accordance with the
requirements of the Archdiocese.
4. Clerk of the Works
A Clerk of the Works shall be provided by the City, at the expense of the Applicant, its
successors or assigns, as is deemed necessary by the City Planner.
5. Traffic Mitigation
The Applicant agrees to contribute$20,000 toward a study/design of intersection and traffic
improvements at Lafayette Street. Such payment shall be made to the City upon the
Applicant's receipt of a building permit for the construction of the new building proposed for
the site.
6. Fire Department
All work shall comply with the requirements of the Salem Fire Department prior to the
issuance of any building permits.
7. Building Inspector
All work shall comply with the requirements of the Salem Building Inspector.
S. Zoning Board of Appeals
The terms of the Zoning Board of Appeals conditional approval for a height variance for the
site are incorporated into this decision,in their entirety.
9. Board of Health
a. The individual presenting the plan to the Board of Health must notify the Health Agent of
the name, address, and telephone number of the project(site) manager who will be on site
and directly responsible for the construction of the project.
b. If a DEP tracking number is issued for the site under the Massachusetts Contingency
Plan, no structure shall be constructed until the Licensed Site Professional responsible for
3
the site certifies that soil and ground water for the entire site meets the DEP standards for
the proposed use.
c. The developer shall adhere to the drainage plan as approved by the City Engineer.
d. The developer shall employ a licensed pesticide applicator to exterminate the area prior
to construction,demolition, and/or blasting and shall send a copy of the exterminator's
invoice to the Health Agent
e. The developer shall maintain the area free from rodents throughout construction.
U The developer shall submit to the Health Agent a written plan for dust control and street
sweeping which will occur during construction.
g. The developer shall submit to the Health Agent a written plan for containment and
removal of debris, vegetative waste, and unacceptable excavation material generated
during demolition and/or construction.
h. The Fire Department must approve the plan regarding access for fire fighting.
i. Noise levels from the resultant establishment(s)generated by operations, including but
not limited to refrigeration and heating, shall not increase the broadband sound level by
more than 10 dB(A) above the ambient levels measured at the property line.
j. The developer shall disclose in writing to the Health Agent the origin of any fill material
needed for the project.
k. If a rock crusher is on site, a plan for placement of the crusher must be approved by the
Health Agent prior to placement and use.
1. Plans for food a establishment must be presented to the Health Agent and approved prior
to construction.
in. The resultant establishment(s) shall dispose of all waste materials resulting from its
operations in an environmentally sound manner as described to the Board of Health.
n. The developer shall notify the Health Agent when the project is complete for final
inspection and confirmation that above conditions have been met.
10.Utilities
a. Utility installation shall be reviewed and approved by the City Engineer prior to the
issuance of a Building Permit. All on site electrical utilities shall be located underground.
b. The Applicant shall clean the drain line on Dow Street downstream from the work site to
r Salem St. preventing any debris from entering the downstream pipes.
4
11. Department of Public Services
The Applicant shall comply with all requirements of the Department of Public Services
12. Signage
Proposed signage shall be reviewed and approved by the City Planner and the Sign Review
Committee.
13. Lighting
a.No light shall cast a glare onto adjacent parcels or adjacent rights of way.
b. A final lighting plan shall be submitted to the City Planner for review and approval prior to
the issuance of a building permit.
c. After installation,lighting shall be reviewed and approved by the City Planner, prior to the
issuance of a Certificate of Occupancy.
14. HVAC
If an HVAC unit is located on the roof or site,it shall be visually screened.The method for
screening the unit shall be submitted to the City Planner for review and approval prior to
installation.
15.Lafayette Park
The Applicant its successors and assigns (if not defined in paragraph one) agrees to
C contribute $1,500.00 per year to the City of Salem for the purpose of creating a fund for the
ongoing maintenance and upkeep of Lafayette Park. Such payment shall be made to the
Department of Planning and Community Development commencing upon the receipt of a
building permit for the construction of the new building proposed for the site and on June 1
of each year thereafter.
16. Landscaping
a. All landscaping shall be done in accordance with the approved set of plans, with the
following revision: the Applicant shall locate columnar trees along the perimeter of the
site where they believe they are most appropriate and shall submit a revised landscaping
plan reflecting this placement to the City Planner for review and approval,prior to the
issuance of a building permit.
b. Trees shall be a minimum diameter of 3 'h" dbh (diameter breast height).
c. Maintenance of landscape vegetation shall be the responsibility of the Applicant,his
successors or assigns.
d. Any street trees removed as a result of construction shall be replaced.The location of any
replacement trees shall be approved by the City Planner prior to replanting.
5
j e. Final completed landscaping, done in accordance with the approved set of plans,shall be
subject to approval by the City Planner prior, for consistency with such plans,to the
issuance of a Certificate of Occupancy.
E Fencing shall be installed along the property line on Salem Street and directly abutting the
residences on Dow Street.The section of fencing along Salem Street shall be a four-foot
black industrial grade aluminum.The section of fencing along the residences along Dow
Street shall be wooden. Details and specifications for the fencing shall be submitted to the
City Planner for review and approval prior to the issuance of any building permits.
17.Maintenance
a. Refuse removal, ground maintenance and snow removal shall be the responsibility of the
Applicant,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. The Applicant,
his successors or assigns,shall guarantee all trees and shrubs for a two- (2) year period, from
issuance of the Certificate of Occupancy and completion of planting.
18. As-built Plans
As-built Plans, stamped by a Registered Professional Engineer, shall be submitted to the
Department of Planning and Community Development and Department of Public Services
.• prior to the issuance of Certificates of Occupancy.
The As-Built plans shall be submitted to the City Engineer in electronic file format suitable
for the City's use and approved by the City Engineer,prior to the issuance of Certificates of
Occupancy.
A completed tie card, a blank copy (available at the Engineering Department)and a
certification signed and stamped by the design engineer, stating that the work was completed
in substantial compliance with the design drawing must be submitted to the City Engineer
prior to the issuance of Certificates of Occupancy; as well as, any subsequent requirements
by the City Engineer.
19.Building Materials
Illustrations of exterior building materials shall be submitted to the City Planer for approval
prior to the issuance of a Building Permit.
20. Violations. .
Violations of any condition contained herein shall result in revocation of this permit by the
Planning Board, unless the violation of such condition is waived by a majority vote of the
Planning Board.
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
6
( of this decision bearing the certification of the City Clerk that twenty(20) days have elapsed and
4... 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
R R
te cPA
R�6TY CLERK
SALEM, MASS.
n CITY OF SALEM3, MASSACHUSETTS
BOARD OF APPEAL n
m 120 WASHINGTON.STREET, 3RD FLOOR r-+ ��
7 - C SALEM. MASSACHUSETTS 01970 �
TELEPHONE: 978-745-9595 �7 C'1
FAX: 978-740-9846 rno cn
KIMBERLEY DRISCOLL N
C:)r-
MAYOR. Lri T�
T'n
August 24, 2006 �_ y
0
Decision
Petition of Salem Lafayette Development, LLC requesting Variances from
Height and Number of Stories for the property located at 135 Lafayette
Street, R-3 District City of Salem Zoning Board of Appeals
A public hearing on the above petition was opened on August 23, 2006 pursuant to Mass
General Law Ch. 40A, Sec. 11,the following Zoning Board members present: Robin
Stein, Annie Harris,Beth Debski, Stephen Pinto, Bonnie Belair.
The petitioner Salem Lafayette Development,LLC is requesting variances pursuant to
section 9-5 to allow for construction of a six-story residential building as part of,a
Planned Unit Development located at 135 Lafayette Street, Salem, in the Multi-Family
Residential (R-3)zoning district.
The petitioner is requesting variances from the forty-five (45) foot maximum height
requirement of the City of Salem Zoning Ordinance (Sec 6-4,Table I)to approximately
sixty-five (65) feet, and from the three and one-half(3 1/z) stories maximum height
requirement to six (6) stories for the new construction of a multi-use building with
seventy-five (75)residential units and an approximately 18,000 sq.ft. Community Life
Center on the first floor.
The Board of Appeals, after careful consideration of the evidence presented at the public
hearing, and after thorough review of the Petition submitted, makes the following
findings of fact:
1. The property at 135 Lafayette Street is within the R-3 zoning district.
2. The Petitioner was represented by Attorney Joseph Correnti, 63 Federal
Street, Salem,MA.
3. A set of proposed plans were presented along with a rendering of the building.
The applicant stressed that the plans and rendering were preliminary and will
change. The site is the former home of St. Joseph's Catholic Church and
school, and includes a rectory and convent buildings.
4. Evidence was presented at the hearing that the Petitioner has met with the
abutting neighborhood associations, the Ward Councilors, City agencies, and
Historic Salem, Inc. on numerous occasions throughout the past year to
discuss the site and proposed plans. Meetings were also held over a period of
time with City officials, as well as the Planning Department. .�
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5. Mayor Kimberly Driscoll addressed the Board and spoke in favor oMhe r.T1c
project, citing the City's detailed involvement with the development due tq the �X viU
4
proposed construction of a Community Life Center within the project anl1he off'
great need for mixed income housing and the community benefit, as welijps a :q
City benefit that the Life Center provided. —
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6. A number of abutters and Salem residents, along with several members of?the
City Council, were present to speak in favor of the project, including Ward 1
Councilor Lucy Corchado, Council President Jean Pelletier, and Councilor at
Large Joan Lovely. Councilor Mike Sosnowski cited the density of the site as
a concern, but generally spoke in favor of the affordable housing component
of the project. Councilor Matt Veno was unable to attend the meeting, but
submitted a letter supporting the project.
7. Councilor Corchado presented a petition with 140 signatures of neighbors that
support the proposed development. Michael Whelan and Claudia Chuber,
former Councilor of the Ward, spoke in favor of the project on behalf of the
Salem Harbor CDC.
8. A representative of the Point Neighborhood Association stated that the
Petitioner has met with them several times regarding the plans and that the
Association supports the project. The Association is involved in the
immediate neighborhood affected by the project.
9. Community members speaking against the project were mainly concerned
with density and the relocation of the existing senior center.
10.The Petitioner is presently before the Planning Board seeking a Planned Unit
Development Special Permit and Site Plan Review.
11. The Petitioner presented evidence pertaining to the history of institutional use
on the site and the history of height of the buildings on the site over the past
100 years,two of which were taller than the proposed structure.
12. Evidence was presented by the Petitioner regarding the hardship resulting
from the uniquely large size of the lot, 2.6 acres, compared to others in this
district.
13. Evidence presented by the Petitioner demonstrated special conditions and
circumstances exist surrounding the history of use on this lot, including the
fact that four structures presently exist on the lot, the oldest two of which will
remain in the proposed plan.
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14.Testimony of the Mayor and various elected officials clearly demonstrated
that the proposed plan and building will offer community benefits, including
mixed income housing, and a Community Life Center owned and operated by ,
the City of Salem, creating special circumstances which are not found on
other lots in the district.
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15. Evidence was presented in support of the requested variances indicatinat a
certain minimum number of market rate units are necessary in order to sport .J,
the 45 below market units proposed for the new structure, and that witho Lsix o
stories; the lot could not be developed for residential use. A local developer3
testified that he would need to construct at least 8 stories to make the proja?t RV,
profitable. A hardship exists which requires a height variance in order to v
lic benefit being proposed. The need for
provide the high level of pub ` 9
affordable housing was stressed by the Mayor, City officials and various
citizens.
On the basis of the above findings of fact, including all evidence presented at the'public
hearing, including, but not limited to, the Petition the Zoning Board of Appeals concludes
as follows:
1. The petitioner's request for variances to allow for a maximum height bf
approximately sixty-five (65) feet and six (6) stories does not constitute a
substantial detriment to the public good.
2. The requested relief does not nullify or substantially derogate from the intent
or purpose of the zoning ordinance.
3. The petitioner's lot size and coverage do not generally occur in the district and
are specific to their land.
4. A literal enforcement of the zoning ordinance would create a substantial
hardship to the petitioner.
5. In permitting such change, the Board of Appeals requires certain appropriate
conditions and safeguards as noted below.
In consideration of the above, the Salem Board of Appeals voted, five (5) in favor(Stein,
Pinto,Harris,Debski, Belair) and none (0) opposed, to grant the request for a variance,
subject to the following terms, conditions, and safeguards:
1. Petitioner shall comply with all city and state statutes, ordinances, codes and
regulations.
2. All requirements of the Salem Fire Department relative to smoke and fire
safety shall be strictly adhered to.
l
3. Petitioner shall obtain a building permit prior to beginning any construction.
4. Certificates of Occupancy are to be obtained.
5. Certificates of Inspection, as required, shall be obtained.
6. Petitioner shall obtain street numbering from the City of Salem Assessor's
Office and shall display said number so as to be visible from the street.
7. Petitioner is to obtain approval from any City Board or Commission having
jurisdiction including,but not limited to, the Planning Board.
8. The proposed new construction shall not exceed six stories or 65 feet in
height.
9. At least thirty-five percent (35%) of the dwelling units on the site shall be
marketed as affordable or below market rates.
10. That the principal use of the first floor of the new building be a municipal use
to include a Community Life Center.
t
11. That the former rectory and school buildings existing on the site shall be
reused in the proposed project.
Ao- - PJ,4, /ham
Robin Stein
Salem Zoning Board of Appeals
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY
CLERK
Appeal from this decision,if any,shall be made pursuant to Section 17 of the Massachusetts General Laws
Chapter 40A,and shall be filed within 20 days of filing of this decision in the office of the City Clerk.
Pursuant to the Massachusetts General Laws Chapter 40A,Section 11,the Variance or Special Permit
granted herein shall not take effect until a copy of the decision bearing the certificate of the City clerk that
20 days have elapsed and no appeal has been filed,or that,if such appeal has been filed,that it has been
dismissed or denied and is recorded in the South Essex Registry of Deeds and indexed under the name of
the owner of record oris recorded and noted on the owner's Certificate of Title.
N
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O D
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
ESCV2006-01881D
WILLIAM DZIERZEK et al. )
Plaintiffs )
V. )
SALEM LAFAYETTE )
DEVELOPMENT LLC et al. )
Defendants. )
AGREEMENT FOR JUDGMENT
Now come the plaintiffs, William Dzierzek et al., the Defendant, Salem Lafayette
Development LLC hereinafter"SLD" and the Defendant Members of the Planning Board of
P _ ( )> g
the City of Salem, Massachusetts (hereinafter the "Board"), being all of the parties to this action,
and hereby agree as follows:
1. The September 14, 2006 Site Plan Review/Planned Unit Development Decision
of the Board granting the application of SLD for Site Plan Review and a Planned Unit
Development for the real property located at 135 Lafayette Street, Salem, Massachusetts, is
hereby annulled in its entirety with prejudice.
2. This agreement for judgment shall have no effect on the action styled Dzierzek v.
Salem Lafayette Development, LLC, et al., ESCV 2007-00617D, which action was previously
consolidated with the instant action for the purposes of discovery and trial. That action shall
remain active.
3. Each party is to bear its own attorney's fees and costs in this action.
4. All rights of appeal are hereby waived.
1
5. The parties' within Agreement For Judgment shall be forthwith entered on the
docket in this action.
Respectfully submitted, Respectfully submitted,
Plaintiffs Salem Lafayette Development
By their attorney, By its attorney,
John H. Carr, Jr. BBO# 075281 Michael D. Vhay BBO#
9 North Street DLA Piper
Salem, MA 01970 33 Arch Street, 26`h Floor
(978) 807-3264 Boston, MA 02110
(617) 406-6033
Michael.Vhay(a)dlapiper.com
Respectfully submitted,
City of Salem Planning Board
By its attorneys,
Elizabeth Rennard BBO# 647777
Robin Stein BBO# 654829
City of Salem
93 Washington Street
Salem, MA 01970
brennardgsalem.com
rsteingsalem.com
Date:
2
1
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
ESCV2006-01881D
WILLIAM DZIERZEK'et al. )
Plaintiffs )
V. )
SALEM LAFAYETTE )
DEVELOPMENT LLC et al. )
Defendants. )
AGREEMENT FOR JUDGMENT
Now come the plaintiffs, William Dzierzek et al., the Defendant, Salem Lafayette
Development LLC (hereinafter"SLD"), and the Defendant Members of the Planning Board of
the City of Salem, Massachusetts (hereinafter the "Board"), being all of the parties to this action,
and hereby agree as follows:
1. The September 14, 2006 Site Plan Review/Planned Unit Development Decision
of the Board granting the application of SLD for Site Plan Review and a Planned Unit
Development for the real property located at 135 Lafayette Street, Salem, Massachusetts, is
hereby annulled in its entirety with prejudice.
2. This agreement for judgment shall have no effect on the action styled Dzierzek v.
Salem Lafayette Development, LLC, et al., ESCV 2007-00617D, which action was previously
consolidated with the instant action for the purposes of discovery and trial. That action shall
remain active.
3. Each party is to bear its own attorney's fees and costs in this action.
4. All rights of appeal are hereby waived.
1
d
5. The parties' within Agreement For Judgment shall be forthwith entered on the
docket in this action.
Respectfully submitted, Respectfully submitted,
Plaintiffs Salem Lafayette Development
By their attorney, By its attorney,
John H. Carr, Jr. BBO#075281 Michael D. Vhay BBO#
9 North Street DLA Piper
Salem, MA 01970 33 Arch Street, 26`"Floor
(978) 807-3264 Boston, MA 02110
(617) 406-6033
Michael.Vhay@dlapiper.com
Respectfully submitted,
City of Salem Planning Board
By its attorneys,
Elizabeth Rennard BBO# 647777
Robin Stein BBO# 654829
City of Salem
93 Washington Street
Salem, MA 01970
brennard@salem.com
rsteinp,salem.com
Date:
2
Executive session procedure
-Announce the Board will be going into executive session to discuss litigation of
-Note that the Board feels discussion in public session could be detrimental to the case.
-Announce that the Board will be reconvening in open session after the executive
session.
-Roll call vote to go into executive session [minutes are taken].
-If any votes are taken during executive session, they must be roll call votes.
-Roll call vote to exit executive session and reconvene in open session.
Report to City Council
June g, 2011
At its meeting on June 2, 2011, the Planning Board voted to recommend that the City Council accept the
withdrawal of the petition to rezone 111 Highland Avenue from Residential One-Family(R-1)to
Wholesale and Automotive (B-4).
If you have any questions regarding this matter, please feel free to contact Lynn Duncan at the
Department of Planning&Community Development at(978) 619-5685.
Sincerely,
Charles Puleo
Chairman
Cc: Mayor Kimberley Driscoll
Planning-Board Action Form
(for roll call votes)
Date:
Motion:
to
BOARD MEMBERS - MOTION SECOND' `VOTE`
Charles M. Puleo (Chair)
John Moustakis (VC)
Timothy Ready Y
Timothy Kavanagh ✓
Christine Sullivan
Helen Sides
Mark George ✓
Randy Clarke
Nadine Hanscom
Planning Board Action Form
(for roll call votes)
Date:
Motion: p k,-, rr ,ws ,j cam. S
'BOARD MEMBERS ., .i =MOTION2:SECOND, =VOTE:
Charles M. Puleo (Chair)
John Moustakis (VC)
Timothy Ready
Timothy Kavanagh ✓
Christine Sullivan
Helen Sides
Mark George
Randy Clarke
Nadine Hanscom
Planning Board Action Form
(for roll call votes)
Date:
Motion:
BOARD MEMBERS MOTION SECOND VOTE'
Charles M. Puleo (Chair)
John Moustakis (VC)
Timothy Ready
Timothy Kavanagh
Christine Sullivan
Helen Sides
Mark George
Randy Clarke
Nadine Hanscom