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106 FEDERAL STREET - DISTRICT FILES 106 Federal Street ��MNB Salem Historical Commission 120 WASHINGTON STREET,SALEM, MASSACHUSETTS 01970 (978)619-5685 FAX(978)740-0404 CERTIFICATE OF NON-APPLICABILITY It is hereby certified that the Salem Historical Commission has determined that the proposed: ❑ Construction ❑ Moving ❑ Reconstruction ❑ Alteration ❑ Demolition Yl� Painting ❑ Signage ❑ Other Work as described below does not involve an exterior architectural feature or involves a feature covered by the exemptions or limitations set forth in the Historic District's Act(M.G.L. Ch. 40C) and the Salem Historic Districts Ordinance. District: McIntire Address of Property: 106 Federal St. Name of Record Owner: Thomas Frary& Susan Weldon Description of Work Proposed: Repainting of house in existing colors. No changes in color, material, design, locution or outward appearance. Non-applicable due to being in kind maintenance/replacement. Please note that paint removal may require approval from the Board gf'Health. Dated: August 30, 2012 SALEM IS C MMISSION By: The homeowner has the option not to commence the work(unless it relates to resolving an outstanding violation). All work commenced must be completed within one year from this date unless otherwise indicated. THIS IS NOT A BUILDING PERMIT. Please be sure to obtain the appropriate permits from the Inspector of Buildings (or any other necessary permits or approvals) prior to commencing work. M �, , - ia� �� a� �z�g3 - ! J n ` 3,. e. �`� . �_ � 'wti' .. .. '. `'.: .. -'joy y.1 �^"^.,' � `�� -,nom .��9. � � � �.�,•h i� .: < 4 ' ` �' � 9 � - � '` .` _ - _ ��,,n r 1�:�`9j�r, � 824'93 AUG 1= AUG=993 F Aw %e + j � f t��. � � �, �., "F�,, � .N � �: � � Z K -_ N /.� I..n � �r II � - � •� �� - ___ ....- - $ 2�.p�_ _, .. /oo�, / a 13 ALIO 1993 r Y,yyY ` 0- V � 1146- AUG offeU G 1993 AUG 1993 �A* © — z ; \ �»� °�/• > < l . — � \ \ jLo �: /opo/42c p,w/ OCA; p A110 1993 AUU3 F � Y ��, __ .�: -r .' `a. �� ! ••_ dt y A , j � . , �'ti, . _ �. ; �, /off ��✓Q�r/ AUG 1993 ALIO 1993 OlOHd KOH 3NO A9&1i Wd3S4 d6 y E ' T, •- F '�•1� SIR � 'Y� ,(•-Y i �^ ' *w,. . <' OlOHd dOOH 3NO 139&1 Wd3%L OZ 700 ♦'� yw • Rol .J. Ory ME 41 � .fir• t F + ' 1 1 r r)el°g G °c-Pr `G�2 4 .Salem Historical Commission APPIAC"ATIQN FOR A CERTIFICATE OF NON-APPLICABILITY Pursuant to the Ilistoric District's Act (M 0.1- Chapter 40C) and the.Salem Historical c otnmission Ordinance,application is hereby made for msuanc'c of a Certificate of Non•Applicnbility for: Construcdon Nio%ingReconstruction Alteration Demolition Painting Sign Ciller a,4csc:rttvd hclou. - .. ' Diunet: 14,110 %N'"-il:!L Original Building Construction Date,if known: j'� f e,,> Addreas of Property:: (i t,:. =°.t�"1�C:.-- ,!'I'l�. •�% Rinne of Record Owncr(s) - SAIV r - .. Description of Work Proposed: /. �ErrovE Lr?t�i4' Jz`,.a,Nt) SC'Ra�',Ei2S r'�ZL. ExiE,t�:.';� . G2r�l yr t Xf�OSEA ItiGOt� 6 )t FH Llll SOLD L'E/� f 't!?E,e r4 .: Sif htiare of Owncr,.._ /._S I el- 9: t 7�" l�yl S u_c?•';. i titre l ad ltess:llCotEl�/�L S7. titatct fyltt. ''.'� t Jane Guy From: Thomas Frary, Jr[tfraryjr@msn.com] Thursday, Weldon;To: Jane Guy Cc: Susan Subject: Application for Cert. of Non-Appl e Here are the pictures of 106 Federal • .. .. • separate troubleemail. I'm having document, • photographed WeldonThank you! Susan f•i •� 1 Front and side on Federal St. 8/30/2012 .l t M��* �� i�--. � �.; �r :� .�w.��•+j . � yam,, !� •�. � .moi � - ..� r' Beckford St. side 8/30/2012 _I 7 N 1 s � I Back from Beckford St. TOM C FRARY IR CLU Business • Personal Insurance Planning 1 . Federal Salem, MA 01970 978-741-5688 978-741-3488 CO 3 3 Salem Historical Commission ONE SALEM GREEN,SALEM,MASSACHUSETTS 01970 (978) 745.9595 EXT.311 FAX(978)740-0404 CERTIFICATE OF NON-APPLICABILITY It is hereby certified that the Salem Historical Commission has determined that the proposed: 0 Construction ❑ Moving Reconstruction ❑ Alteration ❑ Demolition ❑ Painting ❑ Signage ❑ Other Work as described below does not involve an exterior architectural feature or involves a feature covered by the exemptions or limitations set forth in the Historic District's Act(M.G.L. Ch. 40C) and the Salem Historic Districts Ordinance. District: McIntire Address of Property: 106 Federal Street Name of Record Owner: Thomas Frary& Susan Weldon Description of Work Proposed: Repair/replace wood surfaces as necessary to replicate existing (trim, clapboards, window frames & sashes, columns, cornice, etc.). Repair/replace roof surfaces as necessary to replicate existing. No changes in color, material, design or outward appearance. Non-applicable due to being in kind maintenance/replacement. Dated: September 11, 2001 SALEM HISTORICAL COMMISSION By: The homeowner has the option not to commence the work (unless it relates to resolving an outstanding violation). All work commenced must be completed within one year from this date unless otherwise indicated. THIS IS NOT A BUILDING PERMIT. Please be sure to obtain the appropriate permits from the Inspector of Buildings (or any other necessary permits or approvals) prior to commencing work. C .&W Q) � w 0 W o '�.4 .0 c c 0 o.W E om oro W � C oro � x C C OH D � �o 3 )Iepo)l Aq Mwssmid Processing by Kodak Enjoy Your Pictures Right Away, In Just One Hour! RE��e 76266.2 Kodak is a trademark. Printed in USA w , 'M; �. �,. �.� l r . �- i' �� l--_= •��, -__ �� ■ • '- 1 --�-- i-� T 7 '�. � 1 m � T 1 x> 1 m m x c T x 0 n .Av e - ��'� 9 ` 1 >iM4. 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Ch. 40C) and the Salem Historic Districts Ordinance. District: McIntire Address of Property: 106 Federal Street Name of Record Owner: Thomas Frary Description of Work Proposed: Reroofing as necessary to replicate existing. No changes in color, material, design or outward appearance. Non-applicable due to being in kind maintenance. Dated: April 27, 2006 SALEM S O OMMISSION By: The homeowner has the option not to commence the work (unless it relates to resolving an outstanding violation). All work commenced must be completed within one year from this date unless otherwise indicated. THIS IS NOT A BUILDING PERMIT. Please be sure to obtain the appropriate permits from the Inspector of Buildings (or any other necessary permits or approvals)prior to commencing work. i n- .—��_7��4alaa��t!t•s1ll��3"��a� Sa�I I�►��.� w��.—�� , mw%mw ;v&2fwr — t-�� i art's• grAFAMOMMODMWMW us lmrA� •�� r— qm 1� - _ /�- E % ll�� i ice\ - ` ` i h !11 Y - T • .1 `r Jr r �i rr ••L P• 91 yy L••. �' L r � r a ,y ter' ✓� Y '•.�' � :rd��y • 7 r � •'�• i. -'titin _ `S 7} y � 7 i - .� z, \�� ,�'�,� , 4 �' ,, �. ,. `� � - _, -� �� • � �� l �� r�� ` � ` �y �.; � � ♦� � ,?w p� � r f ��A. � � �� .u- �� ;;� f �� '� e-e � 4 . : 'W�.�� I 6 S'`� ,Y � I I1 _ W- '� �_ !`�,� . i � p �M n r � I '��. t, � c � ' � { 'i �4R L �- 1 'I t- ' ..yam ` ' 0 �._= I:. y.: r,. 1 . � l �� e ��ti �'��' •.� k-..� 9 1 ' 1 I , .�. j ' f �• � �� l L� �� I 1 1• I• f A� � � }. `I . ' t . 1 � I t �rteC �� "i - � mak , A''_ i w; �. '` j t' �.._ � `i 'k N t ! .. � �� .. lrf i I r_ _ � �_ � Y 14, t _ -��L '• �' .R 451 ._ �/ ��II: y ' _ I� _� r 6. Yi � .5 t �n1 . 1• �. In 61 1: f,R� S4 - •. r .1., J. , . C. .�^ _ '4 y 0. .k a . . any. _ t !J � �f•J. 1 s IL T . a ly 1. f. TI T 1 f. ♦ ✓i 1 �=:;�: , ,�:: N � . l �' V Y k� 7 I ' �� ,�� — ; �d � .,,�i9 , ., �r w1 iR •� x .L :L •LCL:•l i�•.�.i. . • � ... . E `ti 41 LY�LL.L . •L •4t . �.L .til•• • • Lt Yom] • �iy - ' 1 r: r" I .r I - ti • '•r i �y �:::., .. @fiat--..-�—�3 ��' � � � V i.i F- �. � r.-_.....,._ __.. r— tf-rd .cow a Salem Historical Commission ONE SALEM GREEN,SALEM,MASSACHUSETTS 01970 (978)745.9595 EXT.311 FAX(978)740-0404 CERTIFICATE OF APPROPRIATENESS It is hereby certified that the Salem Historical Commission has determined that the proposed: ❑ Construction ❑ Moving ❑ Reconstruction ❑ Alteration ❑ Demolition Painting ❑ Signage ❑ Other work as described below will be appropriate to the preservation of said Historic District, as per the requirements set forth in the Historic District's Act (M.G.L. Ch. 40C)and the Salem Historic Districts Ordinance. District: McIntire Address of Property: 106 Federal St. Name of Record Owner: Thomas Frary & Susan Weldon Description of Work Proposed: Paint colors: Body: Golden Eyes Trim: H24 Shutters & Door: black Dated: April 4, 2002 SALEM HISTORIC COMMISSION i (✓� By: The homeowner has the option not to commence the work(unless it relates to resolving an outs ding violation). All work commenced must be completed within one year from this date unless otherwise indicated. THIS IS NOT A BUILDING PERMIT. Please be sure to obtain the appropriate permits from the Inspector of Buildings (or any other necessary permits or approvals)prior to commencing work. Paint samples for 106 Federal St. Susan Weldon and Tom Frary y Z.&-e.4 Golden Evcs IA10-5 H24 I-t:46 P CO v� Salem Historical Commission ONE SALEM GREEN,SALEM,MASSACHUSETTS 01970 (978)745-9595 EXT.311 FAX(978)740-0404 CERTIFICATE OF APPROPRIATENESS It is hereby certified that the Salem Historical Commission has determined that the proposed: ❑ Construction ❑ Moving ❑ Reconstruction ❑ Alteration ❑ Demolition _'K Painting ❑ Signage ❑ Other work as described below will be appropriate to the preservation of said Historic District, as per the requirements set forth in the Historic District's Act(M.G.L. Ch. 40C) and the Salem Historic Districts Ordinance. District: McIntire Address of Property: 106 Federal Street Name of Record Owner: Thomas FrarY& Susan Weldon Description of Work Proposed: Paint colors: Option 1 Option 2 Body: Lexington Blue Lexington Blue Trim*: Saxon Blue Lady Banksia Doors: Codman Claret Codman Claret Shutters: Codman Claret Saxon Blue Window Sash: Codman Claret Codman Claret *Trim to include cornerboards, cornices/dentils, window frames/casings,porch columns&panels Commissioner Mangifesti has been delegated to approve color placement for accent/details. Dated: October 9,2001 SALEM HI TORICAL COMMISSION By- The yThe homeowner has the option not to commence the work(unless it relates to resolving an outstanding violation). All work commenced must be completed within one year from this date unless otherwise indicated. THIS IS NOT A BUILDING PERMIT. Please be sure to obtain the appropriate permits from the Inspector of Buildings (or any other necessary permits or approvals)prior to commencing work. Attached are 3 color schemes for review for 106 Federal St. Two of the schemes are in shades of blue green with neutral yellow and red accents. ,, ^-e in the use o ^ t: ti*^^bred rim.a^ains'the r ediwon you vs. dark w, f»..g,.. w s green colored trim against the medium green body. The third scheme is based on a primary color scheme of red-yellow-blue against a All colors are listed as named on the SPNEA approved Historic Colors ofAmerican color chart. Actual eh ps s', Wn were as close as we could acquire tom available pair.'store chips. We would be using the Spnea color chart colors as the actual colors to be mixed I:-r theme nal paint. Our goal is to highlight the Victorian detailing on our house which is minimal compared to the photos shown. The dental molding on our house would be one color, matching the cornices. Detail painting would be restricted to storm sashes and contrasting panel molding around the front door and over the front windows. We are meeting with abutters over the next week for input on these considerations. Q 106 Federal a 1. Body 2. Trim: Corner Boards sous Cornices/Dentals Porch Columns 3. Window Frames 4. Storm Window Frames BIZ S� SSS� 5. Shutters 6. Door 106 Federal Street 1. Body Lexingtion Blue 2. Trim Lady BanLia Corner Boards /'nr»inoc/no»tnlc Window Frames/Casings Porch Columns and Panels 3. Storm Window Frames Codman Claret Panel Molding 4. Shutters Saxon Blue S. Door Cudman Claret t L 3 71L_ rg WILMETTE 1134 Elmwood,When Eliot and Christine Dugan-Schiff,the owners of this extraordinary 18731talianate towered villa,decided to make their home a Painted Lady,they called on a friend of a friend,James Jereb,the leading color designer from Chicago who now lives in Santa Fe.Jereb's work appeared in Daughters of Painted Ladies.A dedicated artist who looks at a house as a canvas, James insists on doing a major part of the hands-on painting himself and then,like any artist,signs his work. The house was built by Horace and Edwin Drury for the Asahel Cage family. The Cage Addition to �Nilmette became a popular suburb of Chicago right after the Creat Fire,when country living seemed safer. 151 i ZI + ?MWWWd S - _ I - - 5 ST. LOUIS (Right, above). 1901 Hickory Street. Second _ Empire/French Mansard. 1875. The tracery framing the windows in three-dimensional con- crete was highlighted by paint. Three cheers for red,white,and blue,especially when it is balanced i with such elegant precision. ST. LOUIS r � (Right, below). 2006 Lafayette. Second Empirel =- French Mansard. 1878.Adamo and his crew were - on the scaffold painting while the leaves in the - park across the street changed colors in their .-J ,�d autumnaldance.Inspired by nature,Joe's planned - colors changed to autumn golds and greens.Now r_; the neighbors call this"The Autumn House." ) 11 ' 1 frrr o p o❑ o 0 0 o A'�1 cccccoo - — :ij ®EMT ®oao ecce❑ -- 0 RIVERSIDE 3121 Mulberry. The detailing on this sweet (1884/1890) Queen Anne n}akes it look like an enchanted castle. Civil war veteran and lawyer L.C. Waite moved to the new colony of Riverside in 1870,married Lillian,the only daughter of the city's pioneer doctor, and in 1884 built a frame house on the block he had purchased. In 1890,he hired contractor A. W Boggs to add a bound new eleven- room addition,following plans drawn by architect A.C.Willard.Daughter Lillian lived there until 1942,when the house passed on to less-loving bands. In 1960,Kathryn Maddox moved in and started roofing and restoring,a chore that has not been completed—although you couldn't tell that from the cheery new paint job of two greens, brown, cream, and terra-cotta by colorist Chuck Vedder. Note the original stained-glass window in the left front parlor and the ruffly cresting on the roof and towers.Vedder feels that he does much more than just paint houses:"We rewrap a gift that was given us so that our children and future generations can see the history in these houses.'* (Opposite)3209 Mulberry at 2nd Street.Only Hans Christian Andersen could create just the right character to live in this fanciful 1893 Queen Anne cottage,a Riverside City Landmark.The crazy-quilt pattern of eleven basic colors on the shingles is rare,since the labor is so painstaking,but Chuck Vedder's painting crew specializes in whimsical,difficult jobs.This house reminds him of a music box— ..and if you open the lid you can hear player-piano music." David C.Mitchell built this home for himself in 1893,at about the time he was helping to create Riverside County,and the same year he was elected county treasurer,a post he held until 1927,when he was succeeded by his daughter Alice M. Mitchell. Mitchell's life reads like an Edna Ferber novel.The son of an Erie,Pennsylvania,cooper,he served in the Union Army from age fifteen to nineteen and fought at the Battle of Gettysburg.Then he was a store clerk in Rockford,Illinois;a farmer;a construction-gang man on the Chicago,Milwaukee&St.Paul Railway;araneber;and a businessman.Atone time,there were three other Riverside houses based on the same stock plans. Only this one has been restored to its original single-family chane. 256 106 Federal Street 1. Body Citadel Blue . Trim vv Vinier Harbor Corner Boards Cornices/Dentals Window Frames/Casings Poreli Columns and Panels 3. Storm Window Frames Wild Oats Panel Molding Shaker Red 4. Shutters Winter Harbor S. Door Shaker Red •t -� r T, .4` 1 \` 1 1�` t Z J 71 - 610 8th Street.Rich,jewel-like colors make this impresr N c 1880s Queen Anne,built by druggist A.C.Hinchman,picture- perfect.The previous owners had painted what once louked like a snowball in the colors shown here,said to be the original ones.Ina 1909 photog-a-jh,the house looks exactly as it does toda-,.The Kramers,the present owners,have discovered four of the original wallpape-s in the house.They plan to a&a bit more of the terra-cotta to highlight the exterior details.Thee advise restorers,"Everything takes twice as long and costs twi.e as much.A sense of humor keeps things in perspective.- 167 r; a -- - The ever-vigilant duck protects the Amish and Mennonite collectibles dis- played with old and new cooking utensils, a, advertising memorabilia, a 1780s grocery cart, a wood cooking stove, and dried herbs, making this summer kitchen a cheery place for breakfast. i e� c 890 West Third Street.In 1879,Jacob Rich,editor of a local newspaper • and a friend of Abraham Lincoln,built the first house in an area that now consists of several large Victorians.The property was purchased by Rich from the Charles Poor family. The Henkels, the current owners,tell their friends,"The house went from Poor to Rich and with us owning it and having restored it,it has taken us back to Poor." _ Ellen Henkel chose the greens, bieges, and burgundy on this handsome Itahanate in 1990.The house had been painted in two blues and beige, but the architectural detail hadn't been brought out, so when it came time to repaint,the Henkels decided to celebrate the two. y hundred ornate brackets with light colors, making them quotation marks that frame the house."The house was ugly and people thought we were crazy to buy it.Now they see its beauty.In fact,people have asked for the colors so they can use them on their homes and dollhouses."The unity and strength of the brackets supporting the bay window make us want to call them The Three Houseketeers. 165 MICHIGAN HOWELL 409 East Clinton Street.Ed and Judy Stull used turn-of-the-century photographs their 1895 Queen Anne/Stick home to guide them in theirtwo-yearrestoration of the exterior, with its delectable curved porch. Paint scrapings determined the original paint colors—Kentucky bluegrass, - forest green,sandstone,and cottage red— and the photographs helped with color placement. .Y This immaculate and impeccably de- i _ - tailed house was purchased from the estate of the Monroe family,the original builders, rj because the Stulls decided to save it and restore its dignity. They spent eight years - .�• working on the interior,doing everything ..... ..... . ....... ....... ........... .... ... . they could themselves. For a while, they 'i� lived, slept, and had a baby boy, named �1�. Ryan,in one room because the rest of the y house had been gutted. They believe that people who restore Victorians should take their time, work carefully, and know what they re doing before they do it. Ed credits the Painted Ladies books for lending support and encouragement duringhis work,since they were often shown to skeptical onlookers as. testimony for the contrasting yet authentic colors. The "Tinker Toy House" has re- ceived local and state preservation awards. Best of all, it's sparked awareness and historical restoration in Howell. GRAND RAPIDS 303 Madison Avenue Southeast. The restrained feminine color scheme and the exuberant relief decoration over the windows and porch fascia on this 1883 Queen Anne impart the air of a grande dame demurely dressed for church on a sunny Sunday morning. Alexander Kennedy, a lumber and liquor entrepreneur from Canada, made use of the new machine-built gingerbread when he enhanced his home.with Ionic columns and a porch rafling with gracefully turned balusters.But the highlight is the unusual third-floor dormer — _ with its bright sunburst. Gypsy rose, dark burgundy, dark rose beige, white, pale pink, and pale burgundy illuminate the architecture. Jaime Becker bought the house in 1976,whenshewasgoing to college.The house had been cut into five apartments,and the neighborhood was a ghetto in the making.As time went by, she restored the house bit by bit, founded a business, married, had a child, and the neighborhood developed. — Young marrieds moved in and pitched in. Heritage Hill f� became a federal target area for restoration grants and no-or low-interest loans. Instead of being a target area, Heritage Hill is now a historical district that is a prestigious place to live. 129 106 Federal Street 1. Body Gild oats 2. Trim Seal Blue Corner Boards ('nrr�iroc/l7nr�/nlc Window Frames/Casings Poreh Columns and Panels 3. Storm Window Frames ,ionyuit' Panel Molding 4. Shutters Shaker Red S. Door Shaker Red I� art S' lFr � I r ■■ v>r — i ' a e. Asir � i1,� fi rhq • �i�,hl ♦�i �� _ilifilil lr Fi1r66Lr ELGIN (Opposite,above).870 Mill Street.Colonial Revival;Queen Anne. 1900. Maurey Garvey even painted the fireplug in front to match ftb , this corner house.The cream trim is like thread tying together the burgundy and dark green sections of this simple, comfortable home. Elgin,an agricultural center,once set the nationwide price of l !y butter. Today it is a thriving, self-reliant town concerned about preservation. II ROCKFORD - t (Opposite, below). 803 North Church Street, Italianate. 1870s. \ Gold,orange,brick red,and brown highlight the cornice brackets and dentils in this handsome renovated office building. - - Rockford is the home of the celebrated Tinker Cottage, a Swiss chalet that is filled with Victorian treasures and preserved exactly as it was,complete with greenhouse, when businessman - and inventor Robert Tinker lived there. �d] s� BARRINGTON (Above and right). 223 West Main Street. Octagon. 1878. This meticulously painted eight-faceted gem is highlighted by the ^ flutings and bracket crests on[he columns.This carefully restored building is listed on the National Register. 7 4 y r y MW f 'P6P � ' �yY d 01OHd dnOH 3NO 139dH1 4Cid3'61 UO # COO -4 J. � - �. : .. +� � � . . - S r 1�... .g.t lid.. .a � �� : - ;: .._ , -cd. - - - — ' , � ;��' 1 - _ :.i' ;. .w x. � � � ,�._ . A �: 1.. It �i R - ` ` r �� OlOHd dnOH 3NO 13MUi Wd3Sll dl # p00 ..y a S r �1 4�r fPl T CD T m m mm x .70 0 0 r� x Y. '� � �� -� � �� T Ii��P�✓�r \\\r ,:, tii ��► 4 s `.1:. "�y_ .,.f.r 1 _,I ``� _�=� �` t V �'' Y'T , 1 � �� m� � J. /'� � � � t"'..�,,. d i +y leve�T....' ..�• � � Q `w- rov 7 �_ 8 24'9 3 AUG 1993 �M,coMM1� Salem Historical Commission CITY HALL. SALEM, MASS. 01970 �r �V^�oIMM6 Wry CERTIFICATE OF NON-APPLICABILITY It is hereby certified that the Salem Historical Commission has determined that the proposed construction [ ] ; reconstruction [ ]; demolition [ ] ; moving [ ]; alteration [ ] ; painting [x]; sign or other appurtenant fixture [ ] work as described below in the . . . McIntire Historic District. (NAME OF HISTORIC DISTRICT) Address of Property: 106 Federal St. Name of Record Owner: Robert Kiel & Denise DiRocco-Kiel DESCRIPTION OF WORK PROPOSED: Repainting of building in existing colors. No change in color, material, design or outward appearance. Non-applicable due to being in kind maintenance. does not involve an exterior architectural feature or involves a feature covered by the exemptions or limitations set forth in the Historic District's Act (MA_ Gen. Law, Ch. 40C) and the Salem Historical Commission. Please be sure to obtain the appropriate permits from the Inspector of Buildings prior to commencing. Dated: 8/13/93 SALEM HISTORICAL COMMISSION By_WL0 Chairman { M E M O R A N D U M TO: John H. Carr , Jr . FROM: Julie Lovell Re : Salem Historical Commission Date : August 1, 1984 This memorandum addresses the issue of whether a mayor can supersede the decision of a commission established by the state . The relevant facts are as follows : a Salem resident installed a greenhouse window in his home located in the historic district. He subsequently applied for a certificate of appropriateness and certificate of non-applicability from the Historical Commission. The Commission denied the applications and the resident initiated an appeal to Superior Court pursuant to M.G. L. c. 40C 914A. The city solicitor refused to defend the action without enumerating his reasons and , after obtaining the mayor 's approval , entered into an agreement for judgment with the disgruntled applicant. Discussion: It appears from a review of the general legal doctrines of delegation and separation of powers that the mayor had no power to interfere with the decision of the Commission. The Historical Commission was created by M.G. L. c . 40C §4 and is an independent legislative agency with the power to make decisions . The statute confers on the Commission "a substantial measure of discretionary power with respect to the appropriate- ness of exterior architectural features and congruity to historic aspects of the surroundings and the district. " Gumley v. Board of Selectmen of Nantucket, 371 Mass. 718, 358 N.E. 2d 1011, 1015 (1977) . The statute also provides for a review procedure ( §12) and an exclusive appeal mechanism ( §12A) for aggrieved applic- ants . Appeals under the statute are "intended to prevent abuse by decisions based on peculiar individual tastes and are not taken as transferring the discretioary power of the commission. " Id. In Gu_ mley, The Historic Commission decided not to issue certificates of appropriateness to landowners seeking to con- struct a large residential development. The court held that the decision of the Commission should be annulled since it was based on legally untenable ground, but that the court itself would not issue the certificate of appropriateness since that was the exclusive realm of the commission. In the present case, the Commission alleges it exercised its discretion without abuse and its decision was based on a careful review of the facts. The applicant disagreed with the decision and has followed the appeal route prescribed by statute. The Superior Court judge and not the mayor is the individual who must review and alter the deci- sion of the Commission. This is mandated by the clear language of §12A: "The court shall hear all pertinent evidence and shall annul the determination of the Commission if it finds the deci- sion of the Commission to be unsupported by the evidence . . . or may remand the case for further action by the Commission . . . the remedy provided by this section shall be exclusive . " 2 - Furthermore , the agreement for judgment signed by the Salem city solicitor not only annuls the Commission' s decision but commands the Commission to issue the previously denied certificates of applicability and appropriateness . According to the Gumley case, this is clearly inappropriate since even the Superior Court judge has only the power to remand and cannot order the issuance of the certificate. Under the administrative law doctrines of delegation and separation of powers , the mayor cannot supersede a decision by the Commission. Although individual members of the Commission are appointed by the mayor , the Commission itself is a legisla- tive agency created by state law. In Humphrey's Executor v. United States, 295 U. S. 602, 55 S. Ct. 869 (1935) , the Court held that Congress could restrict the powers of the President to remove members of the Federal Trade Commission. The court commented that the FTC, an agency of Congress, was charged with the important responsibility of formulating legislative policy and adjudicating violations of law and that in order to perform its duties properly, the FTC must be free from executive control. The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the Statute . . . such a body cannot in any proper sense be characterized as an arm or an eye of the executive . Its duties are performed without executive leave and, in the contemplation of the statute , must be free from executive control. 295 U. S. at 628. 3 - The Salem Historical Commission is also a statutorily created administrative body empowered to consider the facts of each situation before it and issue or deny applications for certifi- cates of appropriateness , non-applicability or hardship and perform additional duties. M.G.L. c. 40 §§6-11. If the mayor is permitted to manipulate decisions by the Commission in defiance of the statutory mode of appeal , such an act would vest executive control over a creature of the legislative department, clearly violating the doctrine of separation of powers . In City of Troy v. United Traction Co. , 202 N.Y. 333, 95 N.E. 759 (1911) , the court held that when the Public Service commis- sion had the power to decide the frequency of operation of street cars, the city had no power to require more frequent service. The court stated that the commission, a tribunal trained to consider and determine controversies, was established to promote uniformity and consistency in operation. "Construction of the law that would permit any municipality to disregard the orders of the Commission would cause confusion of authority and make no effect of the work of the Commission for which it is established. " 95 N.E. at 761. Thus, when there has been a specific delegation by the legislation to an agency, such as in the case of the Salem Historical Commission, the municipality may not annul an order of the agency. 4 - In Logansport v. Public Service Commission, 202 Ind. 523, 177 N. E. 249 (1931) the Indiana court dealt with a similar issue. The court held that when the legislature delegated to the commis- sion the exclusive power to regulate rates , the grant supersedes any grant previously made to the city. In the present case, the state legislature delegated exclusive powers to the Historical Commission to make decisions on the appropriateness of architec- tural changes in the historical district. Once the commission obtained this power, the municipality could no longer effectively take it away by making a settlement in disregard of the decision. Rossi v. School Committee of Everett, 354 Mass . 461 (1968 ) , is a case involving facts similar to the present action. In that case a school janitor was fired by the Everett School Committee, and thereupon appealed the dismissal to the Massachusetts Civil Service Commission. At the Commission hearing, an agreement for judgment was entered into between the Everett city solicitor and the janitor whereby the janitor would lose his job for a year , but would be reinstated at the beginning of the following school year . When the year had passed, the School Committee refused to reemploy the janitor , arguing that the city solicitor exceeded his authority in entering into such an agreement . The janitor then filed an action in Superior Court attempting t*e enforce the agreement, which was subsequently dismissed . In upholding the dismissal, the Supreme Judicial Court of Massachusetts held, at 461, that - 5 - the city solicitor had no authority, express or implied , to make the 'agreement. ' The Committee requested and expected the city solicitor to contest Rossi 's appeal from its order discharging him. It did not delegate to the city solicitor the right to exercise its perogatives or powers under G. L. C. 31, §43(a ) , as the appointing authority. It is submitted that the appellate procedures outlined in G. L. c. 4QC supercede any contrary authority to compromise suits against the City of Salem, as may be inferred from §2-182 of the Salem City Code . Section 2-182 reads , in pertinent part , " [the City solicitor] may settle any suit against the city upon approval of the mayor , the president of the city council and the chairman of the finance committee. " This is based on ample case law holding that where state law conflicts with local ordinance , the state statute prevails . But it should be noted that even if this were not the case , the above requirements were not met in that, apparently , the only approval obtained was that of the mayor . 6 - r 354 Mass. 448 ;1 Mass. 461 461 ;n.v.Northwestern Fire&Mar.Ins.Co. Rossi v.School Committee of Everett. ie Bank from proving cancella- ilio problem of appellate review. (b) The majority holding t (Northwestern) in the second ,,.ill gravely affect judicial administration. There is the very issue rests with the Bank. The real prospect that litigants, in order to exploit or in order to despite the Bank's demon- ;roicl the consequences of the majority holding, henceforth g cellation in the case now under ill feel obliged to explore and fully litigate issues which rence to the "strong and oft- 1 ieretofore they seldom have had reason or opportunity to be ng each litigant to one oppor- )ecially concerned with. To safeguard a litigant's rights e merits," means, I must as- :iud fulfill his professional duty counsel may feel obliged to arrtunity to litigate . . . [an] ask for, and judges may well be under a duty to make, find- irric, Mutuality of Collateral ings of fact which are not decisive of the case being tried. Mrd Doctrine, 9 Stan. L. Rev. Juries will be asked to answer special questions. The role ,is record that the Bank did not of the pretrial judge will change if not disappear. Greater first case, that it did have that court congestion, longer delay and heavier expense to the but the fruits of victory in the parties and to the public would seem to be inevitable. fromitbyt.hemajority opinion. I submit that the judge was entirely right in denying Ltions which need not be fully request No. 20, that the exception should be overruled and d nevertheless be mentioned. that the merits of the other exceptions should be examined. 2cludes the Bank or any party er getting appellate review of ,' Policy. Under our practice it issue in the first case because FrIANK Ii. Rossi vs. SCHOOL COMMITTEE of EvEREZT & d to the Bank in that case and another.' re ultimate finding against the Middlesex. April 1, 1968.—June 7, 1968. I appellate review of that issue c majority hold that the issue Present: w ILKINS, C.J., WHITTEMORE, KIRx, SPIEGEL, & REARDON, JJ. incidental finding made by the .Municipal Corporations, Officers and agents, City solicitor. Agency, Ind fair opportunity to litigate Scope of authority or employment. Attorney at Law. where there is no opportunity After the school committee of a city as appointing authority had dis- on here. The majority dispose charged a civil service employee and had requested the city solicitor IIS the comment, "We need not "to represent it" at a hearing before the Civil Service Commission sought by the employee, the city solicitor,although"accompanied"by Ins of obtaining appellate re- Llte superintendent of schools when representing the school committee r essential to a final judgment tit the hearing before the commission, had no authority there to make here was contended for and an "agreement" with tite employee and his counsel that the action of in which it was made to the the school committee should be modified to a suspension without pay for a stated period; and a decision of the commission making the Because this comment is mndifieatimt or,the sole basis of the "agreement" could not stand and that the Bank did not try to did not entitle the employee to reinstatement upon expiration of the d for by its opponent in the I stated period of suspension. lajority's lack of concern with 1 'The treasurer of the city of Everett. i 462 354 Mass. 461 Rossi v.School Committee of Everett. PETITION for a writ of mandamus filed in the Superior Court on September 28, 1964. By order of Sullivan, J., judgment dismissing the petition was entered. John P. Forte for the petitioner. Alfred Levenson for the School Committee of Everett. KIPx, J. Rossi appeals from the dismissal of his petition for a writ of mandamus to compel the school committee of Everett (the committee) to reinstate him to his position as Permanent Junior Building Custodian and to compel the city treasurer to pay him back wages from September 5, 1964. r The case was heard and decided by a judge of the Superior Court on the petition, the answers and a statement of agreed facts which, in summary, disclose the following. After a hearing which complied with the requirements of G. L. c. 31, .. § 43 (a), Rossi was discharged by unanimous vote of the school committee because of serious misconduct involving a Sf`. male pupil at the school. Rossi seasonably requested a tiff; hearing by the Civil Service Commission (Commission) ' . under G. L. e. 31 43 § (b)• On September 18, 1963, a pro forma hearing was hid before a hearing officer; no witnesses were heard; the hearing was continued to October 4, 1963. By letter dated September 18, 1963, the committee re- quested the city solicitor of Everett "to represent it at this formal hearing on October 4, 1963; and [stated] that the Committee will be glad to cooperate in supplying you with whatever information it may have with regard to the entire matter." At the hearing on October 4, 1963, the city solicitor represented the committee. He "was accompanied by" the superintendent of schools who also acts as secretary {` for the committee, but is not a member of the committee. The hearing was completed on October 4, 1963. At its conclusion, Rossi's council and the city solicitor submitted to the hearing officer a paper dated October 4, 1963, hearing the caption "Agreement" which read as follows:— ,,It is hereby agreed that the Appointing Authority's decision of September 4, 1963 be modified so that it reads 'Voted to suspend you from your position as custodian until Septem- l 354 Mass. 461 ;-1 Mass. 461 463 ee of Everett. Rossi v.School Committee of Everett. mus Sled in the Superior or 1, 1964 w2thout pay.' Further Frank I . Rossi waives :Iil rilght to appeal and other remedies he may have." The nt dismissing the petition <iatcnient was signed by Rossi. Near the left margin of the ;;eper below the quoted recital were the words"Assented to," ,)cneath which appeared the signature of Rossi's counsel and ommittee of Everett. the signature of the city solicitor followed by the words dismissal of his petition "City Solicitor for appointing authority." ! the school committee of On February 26, 1964, the Commission voted that the Ite him to his position as action of the committee in discharging Rossi be modified ,dian and to compel the to a suspension without pay from September 5, 1963, to s from September 5, 1964. September 5, 1964. The Commission notified the parties )v a judge of the Superior that "after due consideration of all the evidence" the Ind a statement of agreed modification was made "as agreed between the employee and the following. After a the appointing authority." The committee refused to file a luirements of G. L. c. 31, reinstatement form as instructed by the Director of Civil unanimous vote of the Service. An exchange of letters between the Commission and misconduct involving a the committee followed. The committee insisted that seasonably requested a although the city solicitor represented it at the hearing, mmission (Conunission) he had no authority to make the agreement with Rossi, that eptember 18, 1963, a pro the committee was the appointing authority and as such had ring officer; no witnesses unanimously voted to discharge Rossi, that the vote re- Iucd to October 4, 1963. mained unchanged and that the committee had never been a 1963, the committee re- party to any agreement to the contrary. The Commission, "to represent it at this on the other hand, took the position that the city solicitor and [stated] that the "as the authorized representative of the appointing authority c in supplying you with . • . had the power to enter into the agreement upon which tith regard to the entire the Commission acted." ober 4, 1963, the city Since there is no express agreement to the contrary, He "was accompanied under G. L. c. 231, § 126, we are at liberty, as was the ho also acts as secretary trial judge, to draw inferences from the facts and documents tuber of the committee. stated in the case to determine facts for ourselves and tuber 4, 1963. At its mmittreach such conclusions as we thinkm are warranted. Ca - �I City solicitor submitted bridge v. Somerville, 329 Mass. 658, 660. Yates v. Salem, )ctober 4, 1963, bearing 342 Mass. 460, 461. � Id as follows:—"It is The letters from the Commission to the committee show I Authority's decision of that but for the purported "agreement" submitted to the hearing officer the Commission's decision to modify the hat it reads `Voted to appointing authority's order would not have been made. ustodian until Septem- I � i �V 464 364 Bass. 461 Rossi u. School Committee of Everett. .t We think that the city- solicitor had no authority, express : or implied, to make the "a.-regiment." The committee ' requested and expected the cite solicitor to contest Rossi's appeal from its order discharging him. It did not delegate to the city solicitor the right to exercise its prerogatives or powers mider G. L. c. 31, § 43 (a), as the appointing author- ity. There is nothing in the Revised Ordinances of the city, which are included in the agreed facts so far as they relate to ;tr•, the pokers and duties of the city- solicitor, conferring upon ;. him the power to act as he presumed to act here. Nor was there apparent authority in the city solicitor to make the agreement. He had not been held out by the committee to z Rossi or to the Commission as empowered to do more than to use his professional talents to protect his client's interest at y _ the hearing. We attach no significance favorable to Rossi to =y' the fact that the superintendent of schools "accompanied" the city solicitor. The superintendent had no authority to change the committee's vote as the appointing authority. 2k, The superintendent's correspondence with the Commission n on behalf of the committee both before and after the October r hearing shows that neither he nor the members of the com- mittee were aware of the nature or contents of the paper subnutted to the hearing officer by counsel. It is our conclusion that the city solicitor acted without authority and that neither Rossi nor the Commission had the right to rely upon the city solicitor's representation, F. implied by his assent to the agreement, that lie had such authority. Faced with this factual situation we apply the rule stated in Precious v. O'Rourke, 270 \lass. 306, 308. "When the attorney undertakes to bind his client by an agreement to compromise his client's substantial rights, ; the opposing party must ascertain at his peril whether the attorney has authority- to make the settlement." The Commission's decision, having been based upon an unau- thorized compromise agreement between Rossi and the city solicitor, cannot stand. Precious v. O'Rourke, 270 \lass. 306, 305, 309. The judge's order was correct. Judgunent affirmed. z Y r §2-167 ADMINISTRATION §2-181 6 Secs. 2-167,2-168. Reserved. Editor's note—Sections 2-167 and 2.168, relative to the preparation,distribu- tion,numbering,printing and binding of annual reports,derived from Code 1952, Ch.2,§§49.51,were repealed by Ord.of Sept.24,1981,§2. Secs. 2-169-2-178. Reserved. ARTICLE VI. CITY SOLICITOR" Sec. 2-179. Appointment, removal; term; qualifications. The mayor shall appoint ppoint and may remove, without confir- mation by the city council, a city solicitor who shall maintain his law office in the city and shall be attorney and counsellor in the courts of the commonwealth. The city solicitor shall hold office until his successor is appointed and qualified. (Ord. of 7-20-70, § 1) Charter reference—Appointment and removal of city solicitor, § 60. Sec. 2-180. Compensation. The city solicitor shall receive such compensation as the _ city council may determine, which shall be in full for all serv- ices he may be called upon to perform under the provisions of this article. (Code 1952, Ch. 2, § 57) Cross reference Compensation of city solicitor, § 2-91. Sec. 2-181. Duties generally. It shall be the duty of the city solicitor to commence and prosecute all actions and suits to be commenced by the city; to defend all actions and suits brought against the city; to appear as counsel in any other action, suit or prosecution which may involve the rights and interests of the city, if requested to do so by the mayor or city council; and defend the officers of the city, in any suit or prosecution against them, for any act or omission in the discharge of their offi- cial duties, wherein any estate, right, privilege, ordinance. *Cross reference—Claims against the city, § 2-537 et seq. State law reference—City solicitor defined, M.G.L.A. c.41, § 7. ` Supp.No.8 207 f § 2-181 SALEM CODE § 2-182 or act of the city government, or any breach of any ordinance may be brought in question. He may take such steps and in- cur such expense, to be charged to the proper appropriations, in prosecuting and defending suits, as he may deem neces- sary; and may settle any suit against the city upon approval of the mayor, the president of the city council and the chair- man of the finance committee. He shall also appear before the general court of the commonwealth, or before any com- mittee thereof, whenever the interests or welfare of the city may be directly or indirectly affected, if requested to do so by the mayor or city council; and shall perform all other profes- sional duties incident to his office which may be required by the mayor or the city council; and he shall, when requested, furnish the mayor, any member of the city council, the school committee, or any board or officer in charge of a department of the city government, his legal opinion on any subject or question relating to the discharge of their official duties; provided, however, that if such opinion is desired in writing, the question submitted for his consideration shall also be stated in writing. The city solicitor shall examine all claims presented to him, and if a settlement thereof seems to him advantageous for the city, shall approve the same. (Code 1952, Ch. 2, § 54) Sec. 2-182. Drafting legal instruments. The city solicitor shall draft, or cause to be drafted, all bonds, deeds, contracts, and all other legal instruments which may be required of him by the city council, any board or Supp.No.8 208 § 2-182 ADMINISTRATION - § 2-196 purchasing agent, or which by law, usage and agreement are to be drafted at the expense of the city. (Code 1952, Ch. 2, § 55) Sec. 2-183. Annual report. On the first day of April in each year, the city solicitor shall make a report in writing to the mayor and city council concerning all suits or legal proceedings in which the city is interested, which are pending or have been determined dur- ing the preceding year, with a brief description of each case, and such other information as, in his opinion, the interests of the city may require. (Code 1952, Ch. 2, § 56) Sec. 2-184. Appointment of assistant city solicitor; duties; term; compensation- The mayor shall appoint and also may remove, without confirmation by the city council, an assistant city solicitor, who shall perform all such duties as are required of him by the city solicitor and who shall hold office until his successor is appointed and qualified. Until changed hereafter by any general or special ordinance relating thereto, the position of the assistant city solicitor shall be included in Job Group VII, with the weekly and annual schedules of compensation relat- ing thereto, in the general classification and salary schedule adopted in the year 1970. (Ord. of 7-20-70, § 1) Sec. 2-185. Employment of assistants; compensation. The city solicitor may appoint or employ such clerical a.. other assistants, except the assistant city solicitor provided for in this article, as he may deem necessary and fix their compensation within the budget of his office as approved by the city council in the amounts appropriated therefor. (Ord. of 7-20-70, § 2) Secs. 2-186-2-196. Reserved. Supp.No.10 209 3 fT.v. -%-lf � �_�b yl l-`fi:..� !PI F... >f 'i. .._. .. - .'. 4 ) -✓ } � 2 .. � p• rY�i r. Y• y. .r SUPERIOR COURT 84- 515 RICHARD S . MINTURN, ET AL vs. SALEM HISTORICAL COMMISSION 744-7104 COUNSEL FOR PLAINTIFF COUNSEL FOR DEFENDANT Christopher Cabot A- Z2 e J17 J�L(ilGLr �j� Hauserman, Davison & Shattuck One Boston Place Boston Mass 198 DATE NO. U ( 1.f 7 UPI I IUI ': AU111I IgfL l PI nIN III i Mar 6 1 Comnlninl' --- Sucrnnnr P Frr LIICY i nn �nx,nv char - .j L�G1 alal'.. 4 ADDITIONAL DEFENDANTS 1 CONTRACT IOR TORT) '2 MOTOR VEHICLE TORT 3 OTHER TORTS 4 LAND TAKING 5 OTHERS Y COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION NO. RICHARD S . MINTURN and SUZANNE P . FREEMAN, Plaintiffs V. * COMPLAINT SALEM HISTORICAL COMMISSION, Defendant 1. The plaintiffs, Richard S. Minturn and Suzanne P. I Freeman, own and reside at the residence located at 106 Federal Street, Salem, Massachusetts. 2 . The defendant, Salem Historical Commission ("Commission") , is the duly constituted historic district commission for the City of Salem within the meaning of Mass . General Laws Chapter 40C. 3 . On or after February 16 , 1984 , the Commission caused a Notice of Denial of Application for Certificate of Non-Applicability, a copy of which is attached hereto as Exhibit "A" , to be filed with the City Clerk, of Salem, Massachusetts. 4 . On or after February 16 , 1984 , the Commission caused a Notice of Denial of Application for Certificate of Appropriateness , a copy of which is hereto attached as Exhibit "B" , to be filed with the City Clerk of Salem, Massachusetts . i 5 . The plaintiffs are persons aggrieved' by the determinations of the Commission reflected in the aforesaid notices . . I WHEREFORE, the plaintiffs respectfully request this Court to annul the aforesaid determinations of the Salem Historical Commission on the grounds that they are unsupported by the evidence and/or exceed the Commission ' s I lawful authority, or alternatively that this Court make such orders as justice and equity require. Richard S. Minturn I I 17,GnRN1.� Q-� Suzanne P. Fre man Dated: March 6 , 1984 II � I i 1 ata 57 Aily i GH12, r4 GA--F50- I i� Ft) tAA . jg"" Exhibit A Salem Historical Carin HISSIoM CITY MALL SALEM. MASS. 01970 745-0215 NOTIC£ OF D NIAL OF APPLICATION FOR IC4TE OF NON-APPLICABILITY On Wednesday, February 1, 19E4, ' ..e Salem Historical Commission voted to deny the application for a ',. . :ficate of Non-Applicability for installation of a greenhouse win.dr_ at 106 Federal Street. This vote gas based on the Co^ission's ` ::._.->s that the application involves an exterior architectural fc-at :YL subject to review by the Ca_.ission. I, ,� Q�/ •�fCl/Y G. F,illam, Clerk of Comvission, attest that thi is an accurate record of the vote taken, not amended or modified in any way to this date. i LVJJ li.., .�✓. C.A. No. 84-515 ul RICHARD S . MI14TURN and SUZANNE P . FREEMAN, Plaintiffs * V. I * SALEM HISTORICAL COMMISSION, Defendant + AGREEMENT FOR JUDGMENT Jr TO THE CLERK OF THE ABOVE-NAMED COURT: i It is hereby agreed that the following docket �I entry may be made in the above-captioned action: t "Judgment shall enter for the plaintiffs, Richard S . Minturn and Suzanne P. Freeman, on the issue of the denial by the defendant, the Salem Historical Commission, an instrumentality of the City of ii Salem, of plaintiffs ' applications for a Certificate �! of Non-Applicability and a Certificate of Appropri- ateness. Service and jurisdiction are hereby accepted, and all stays, reports and appeals are hereby waived. The defendant' s determinations of February 1, 1984 with respect to such applications are hereby annulled, and the defendant shall issue to plaintiffs forthwith appropriate Certificates of Non-Applicability and Appropriateness. " i RICHARD S . MINTURN SALEM HISTORICAL COMMISSION, SUZANNE P. FREEMAN an instrumentality of the By their atttSrney, CITY OF SALEM �I B its attorney, I Christopher Cabot Michael E. O 'Brien i HAUSSERMANN, DAVISON & SHATTUCK CITY SOLICITOR, CITY OF SALEM One Boston Place 187 Federal Street ' Boston, Massachusetts 02108 Salem, Massachusetts 01970 (617) 723-2920 (617) 744-3363 Dated: May p# , 1984 Y ?, i I SERVICE i I, Christopher hereby certify that on the i date hereof I served a c, :ize "Agreement for Judgment" I - -cry-c��—=�—✓r-tne aezzo:. : ...t by mailing a copy thereof , i i jpostage prepaid, address, -: Michael E. O'Brien, City Solicitor for the C: ty , _ 137 Federal Street, Salem, Massachusetts 01970 . / I Date pher Cabot i' i I � I � I I i • I; S �-CYLIE Salem Historical Commission CITY HALL, SALEM. MASS. OI970 745-0215 NOTICE OF DENIAL OF APPLICATION FOR CERTIFICATE OF NON-APPLICABILITY On Wednesday, February 1, 1984, the Salem Historical Commission voted to deny the application for a Certificate of Non-Applicability for installation of a greenhouse window at 106 Federal Street. This vote was based on the Commission's findings that the application involves an exterior architectural feature subject to review by the Commission. I, "C74eL&IAt A Nancy G. Killam, Clerk of Commission, attest that thiis an accurate record of the vote taken, not amended or modified in any way to this date. 8q S �LLT2G" Salem Historical Commission CITY HALL. SALEM. MASS. 01970 745=0215 NOTICE OF DENIAL OF APPLICATION FOR CERTIFICATE OF APPROPRIATENESS On Wednesday, February 1, 1954, at the Salem Historical Commission's meeting, the application for a certificate of appropriateness for the installation of a greenhouse window at 106 Federal Street was denied. This vote was based on the Commission's finding that such construction would be incongruous to the historic aspects and architectural characteristics of the surroundings and of the McIntire Historic District. In this finding, the Commission considered the architectural value and general design of the building and the relation of such features to similar features of buildings and structures in the surrounding area. I, rL ,� /, Nancy G. Killam, Clerk of Commission, attest that thi is an accurate record of the vote taken, not amended or modified in any ay to this date. CC: Building Inspector City Clerk t Salem Historical Cor nifssf CITY HALL. SALEM. MASS. ois7c ','ry�41✓IKL It ` CERTIFICATE OF APPROPRIATENESS It is hereby certified that the Salem Historical Commission has determined that the proposed construction [ ) ; reconstruction [ ]; demolition [ ] ; moving [ ); alteration [X) ; painting [ ); sign or other appurtenant fixture [ ) work as described below in the . . . McIntire Historic District. (NAME OF HISTORIC DISTRICT) . Address of Property: 106 Federal Street Name of Record Owner: Richard S. Minturn DESCRIPTION OF WORK PROPOSED: Remove second floor window (rear elevation) 20" X 48" 1/1 in connection with renovations to second floor bathroom; add two 4" vents above former window opening and stain to match wall; and add one 4" X 10" vent below former window opening to service kitchen exhaust fan and stain to match wall. will be appropriate to the preservation of said Historic District, as per the requirements set forth in the Historic District's Act (Federal Laws , Ch. 40C) and the Salem Historical Commission. Dated: September 17, 1985 SALEM HISTORICAL COMMISSION 8y C Chairman 4� Ae f6,b6-Z-A - 5T I IAF 0 u�� ESi T 1 �EA.L' ��TD�� H) ELGVAT 11)'3 t>86-0FKD� coYLNG12 fSEGKFa7» �'�VG2515 IUs12 s r 'e ` 5u�°unnnm_\ ............... E�C+1I3� unn n 5IT —�_ VGIJ 15 4" \ I• IiJ co&3vzleTjr>z wi-T " �Z�rm� .Stoy75 ■ To a 5 E.tA�..�b F�vavL FSa.T N+�nr+� � �...^'{ " ----.- - R.._ P�o.a.� \ �-'✓Tb.11J To M.AT�-t1 F Lo A,t.<, -i sI IDH - '..�.. If� 45x HA1ra T /cA +l 1>3 :T Z-- -[DE--7A-c- o SEA. �- 6-b-C UINTICN OFFICE: One Salem Green a Second Floor n HOURS: Tues. & Thurs. 10 a.m. - 1 p.m. (Or by appointment) Salem Historical Commission CITY HALL. SALEM. MASS, 0I970 744-4580 APPLICATION FOR CERTIFICATE OF APPRO-R=ATENESS ;- , Pursuant to the Historic District's Act (General Laws, Ch. 40C) and the Salem Historical Commission Ordinance, application is hereby made for issuance of a Certificate of Appropriateness for: Construction ( ) ; Reconstruction ( ) ; Demolition ( ) ; Moving ( ) ; Alteration Painting ( ) ; Sign or other appurtenant fixture ( ) wo_k as described in the Me- I I')-T I ILS Historic District. (NAME OF HISTORIC DISTRICT) Address of Property: IDLs. Name of Record Owner: I H A-,e- • ! i v2P Date building erected and architect, if known:,G • I U F`Jy,c t Farr, • ��rs C x s-�m�Win.. - G v-�-6 n DESCRIPTION OF WORK PROPOSED: 64-GVATIoiJ - $6 MDV- .6. Rsoc>0;. 1D13S TO A r5/ -Ty{�.++.aa (PLIASE ATTACH REQUIRED SCALE DRAWIM!G , PANT CHIPS 0D/OR SAMPLES OR WORK AND MATERIAL PROPOSED, WHERE APPLICABLE) fiGV- 11 � Signature o= C y Name of Owner 1�1j ..2o Owner: (PLEASE PRINT OR TYPE) Address of Owner: j[Yo. )%�DEpA c S I` Tel. No.�� 10�'; DateQ lSix ;K l '1°185 td is e � e e Ae.� 4F CITY OF SALEM MASSACHUSETTS ANTHONY V. SALVO MAYOR May 24, 1984 Elizabeth B. Wheaton, Chairman Salem Historical Commission 28 Chestnut Street Salem, Massachusetts RE: Richard S. Minturn v. Salem Historical Commission Superior Court #84-515 Dear Mrs. Wheaton: Please be advised I have met with the City Solicitor regarding the above matter. After reviewing the same, it is the Solicitor's opinion that the matter should be settled in favor of the complainants. Accordingly, the Solicitor will enter into an Agreement for Judgment on behalf of the City of Salem in this matter. I believe such course of action to be in the best interests of all parties concerned as well as all the citizens of Salem. Very truly yours, Anthony V. Salvo Mayor AVS/smc cc: City Solicitor Christoper Cabot, Esq. ) MICHAEL E.O'BRIEN CITY OF SALEM CITY SOLICITOR MASSACHUSETTS MARY P. HARRINGTON 93 WASHINGTON STREET ASSISTANT CITY SOLICITOR and 93 WASHINGTON STREET 137 FEDERAL STREET and SALEM,MA 01970 59 FEDERAL STREET 745,4311 SALEM,MA 01970 — 7443363 i 744-0350 Plane Reply to 187 Federal Street Please Reply to 59 Federal Street May 11, 1934 Elizabeth B. Wheaton, Chairwoman Salem Historical Commission 28 Chestnut Street Salem, Massachusetts 01970 Re: Richard S. Minturn v Salem Historical Commission Superior Court #84-515 Dear Mrs . Wheaton: Kindly give me a call at your earliest convenience to discuss the above matter. 7V my yours , d e E . O'Brien MEO/]p cc: Christopher Cabot, Esq. S Salem Historical Commission CITY HALL. SALEM. MASS, 01970 745-0215 February 16, 1984 Richard S. Minturn 106 Federal Street Salem, MA 01970 Dear Dick:. Thanks for your note requesting copies of the minutes pertaining to your greenhouse window application. As we generally approve the minutes at the next regular meeting, I will forward them to you after our March 7 meeting. Very truly yours, Eliz4eth B. Wheaton Chairman ngk RICI-IAR D S. 1IIYTURIN 106 FEDERAL ST. SALEM, MASS. 01070 6617 744.1047 6 Feb. 1984 Ms. Elizabeth Wheaton, Chairperson Salem Historic Commission Salem, MA 01970 RE: 106 Federal St. Greenhouse Window; Application for C. of A. Dear Liz , On the date when the Commission passes the results of last Wed- nesday' s vote on our window to the City, would you be kind enough to let us know in writing. Also, we would like a copy of all the minutes from the meetings when our window or applications were discussed, and any other material pertaining to our window which the Commission may have on file. Thanks very much for your cooperation; and thanks also to the Commission for their time , which we took so much of. Very truly yours , cc: Christopher Cabot Esq. Hausserman, Davison, & Shattuck (9) MICHAEL E.O'BRIEN CITY OF SALEM CITY SOLICITOR MASSACHUSETTS MARY P. HARRINGTON 93 WASHINGTON STREET ASSISTANT CITY SOLICITOR and 93 WASHINGTON STREET 187 FEDERAL STREET and SALEM,MA 01970 59 FEDERAL STREET 745.4311 SALEM, MA 01970 7443383 744-0350 Please Reply to 187 Federal Street May , 1984 Please Reply to 59 Federal Street Elizabeth B. Wheaton, Chairwoman Salem Historical Commission 28 Chestnut Street Salem, Massachusetts 01970 Re: Richard S. Minturn v Salem Historical Commission Superior Court #84-515 Dear Mrs . Wheaton: Please be advised this office is in receipt of an Essex Superior Court Complaint in the above matter, a copy of which is enclosed. Upon a review of the matter and after discussions with the complainant' s at- torney, it is the opinion of this office that the probability of a meri- torious defense of the action would be slight. This opinion was reached after a complete review of Massachusetts General Laws Chapter 40C and Article IV, Sections 19-63 through 19-69 . Rather than subject the City of the time and expense of defending the action, not to mention the possibility of payment of costs and at- torney's fees , I believe the best course of action would be agree to judgment for the plaintiffs and obtain releases for the members of your commission. Kindly advise. Ver my your M chael E. O'Brien City Solicitor MEO/jp/ Enclosure cc: Anthony V. Salvo, Mayor s Eisenberg Haven Associates, Inc. 29 temple place Boston massachusetts 02111 January 31 , 1984 Salem Historic Commission One Salem Green Salem, MA 02113 Re : Interpretation of Massachusetts General Laws , Chapter 40C para. 8a. 4 Gentlepeople, We have been asked by Richard Minturn of 106 Federal Street, Salem, to offer our interpretation as professional building code consultants , of Chapter 40C para. 8a. 4 of Massachusetts General Law. Chapter 40C of the enabling legislation for historic commissions in the Commonwealth, and particularly paragraph 8 reads, in part, as follows : § 8. Review authority of commission over certain categories of buildings, structures or exterior architectural features lim- ited; authorization (a) Any city or town may provide in the ordinance or by-law es- tablishing a district or in any amendment thereof that the authority of the commission shall not extend to the review of one or more of the following categories of buildings or structures or exterior archi- tectural features in the historic district, and, in this event, the build- ings or structures or exterior architectural features so excluded may be constructed or altered within the historic district without review by the commission: (1) Temporary structures or signs, subject, however, to such conditions as to duration of use, location, lighting, removal and simi- lar matters as the commission may reasonably specify. (2) Terraces, walks, driveways, sidewalks and similar structures, or any one or more of them, provided that any such structure is sub- stantially at grade level. (3) Walls and fences,or either of them. (4) Storm doors and windows, screens, window air conditioners, lighting fixtures, antennae and similar appurtenances, or any one or more of them. Life Safety, Fire Protection and Building Code Consultants telephone 617-542-7131 s ' z. The city of Salem adopted this language in its ordinance creating the Historic Commission. It is our opinion, based upon experience gained in working with other Historic Commissions in Massachusetts, New Hampshire, and Connecticut, that a modest greenhouse window, as called out in Mr. Minturn' s application for a certi- ficate of non-applicability, is to be interpreted as a "similiar apurtenance" as cited in para. 8a. 4. Very truly yours, L7 J'At" L T. Todd Andersen Consultant HAUSSERMANN, DAVISON & SHATTUCK ONE BOSTON PLACE BOSTON. MASSACI+USETTS 02108 TELEPHONE (6171723-2920 TELECOPIER 1617)]23-7365 CABLE "HAVISON" TELE.95-1131 December 7 , 1983 Salem Historic Commission One Salem Green Salem, Massachusetts 01970 Mesdames and Gentlemen: This letter is written on behalf of Mr. Richard S. Minturn of Federal Street, Salem, in regard to the recent installation of a "greenhouse window" on his residence. Mr. Minturn understands that this window has been brought to your commission' s attention. Prior to installation of the window, Mr. Minturn was under the belief that approval of the installation by your commission was not required by law; accordingly no application was filed. If such approval is required, please consider this letter to be a request for such approval. Mr. Minturn regrets any inconvenience this matter may have caused. If you have any questions on this matter, please do not hesitate to contact me. Sincerely, "-qL- l� Christopher Cabot cc: Mr. Richard S. Minturn A .. American Landmarks, Inc. Brokerage.Invesonenf Counseling and Technical.Servlms for Ilisloric Yrolvnies January 31, 1984 Mr. Richard S. Minturn 106 Federal Street Salem, MA Dear Mr. Minturn: RE : Greenhouse or Oriel Window, 106 Federal Street , Salem. At your request we have looked at the greenhouse window which you have installed on the south wall of your home on the 2d floor level. We understand that you are are applying for approval of this element from the Salem Historic District Commission. While the window in question is clearly a contemporary interpretation of earlier forms , it is not inconsistent with surface treatment of Queen Anne and Shingle Style domestic architecture of the 4th quarter 19th Century. Your residence dates from this period, as you are aware. The fact that the house itself substantially post-dates the prevailing building types in the district renders it some- what dischordant with the ambience of the neighborhood on the most basic level. Thus , a window such as yours is not inconsistent with the date and style of your residence whereas it might be so were it placed on an early 19th or late 18th Century home nearby. The attached photos of late Victorian houses demonstrate that the general type of small upper level oriel window of which yours is a variation, were not at all uncommon during the period. Therefore I believe the question is more one of the appropriateness of the styling of the window than it is one of the appropriateness of the protrusion itself. While we understand that this is not part of a rehabilitation for tax credits , it may be worth pointing out that the Sec- retary of the Interior' s standard #9 stipulates that contemporary design for alterations and additions shall not be discouraged when they do not destroy significant historical, cultural or architectural material. Standard #10 mandates that changes should be reversible in nature, which your' s certainly is . Very truly yours , Federicko.N LAND. RKS , INC. . Lyman 167Milk Strect BOS1On,Massachusetts 02109 (6171423-0766 � L :4 f _ A_ ,. VII I\ • t•'--I, • -- - — jirr T nn,nneA o� nnumr i I unnmr un � 0 R (fill► BE1111111=:1 - E � !n 1mnR11(nrniuun - - I nm ml unn � I I II1111111r II111 - - 1 PLATE 110. $t. Johnsbury. Vt. Hip roof with crestine at the apes, cyc- incorporated in a homel} porch that extends part \nt_ around each side of brow dormer, two cone-shaped roofs. one to a cylindrical turret, and an up- the house. Overhang of second store is an honest e\pression of floor level. stairs porch on consoles are features that attract our notice only after the which principle ligured in the Venetian Gothic st\le. popularized by John bold curlicues in relief surrounding the Palladian window in the principal Ruskin's The .Seven Lamps of Arrhue<nae (I8d9) and .Slone.s of I'enhe gable. The low pediment over the front steps also contains such embellish- (1851). ments but on a small scale. Attenuated urn-shaped posts and lattices are N h r _ V r 1, stairway recess, Gothic balustrade on the staircase, Gothic fireplaces, and molded cornices and molded ceiling cartouches. Its plumbing and other fixtures are tt'pi- cal of California domestic architecture of the 1860s. The French-stvle bathtub of planished tit, on copper teas encased 1 in Spanish cedar; faucets t%cre silver- plated: sink tops there of Italian nuuble. ® The clothes closets were fitted with notorious brass hooks, called "clothes en-pins." Pictured belie% is the side trance that admits to the libruv-studv. �,•�°'- J. Alura Muss, a San Francisco husioess- f - m,ni. built hitt house m 1563 at it site note centered at Mac.Aithm and Broad- a N\a\. In the 1860s and 1570s, mam real estate pacts in the East Bat their ac- ` a a uired b% San Franciscans for home sites �. or weekend cottages. In 1912,. the cit% acquired the \foss estate at the insist- -'�" I ence of then \favor Frank K. Mott, to �'• .'. - - .' \rhom the park's Baoada\ ay Pergola En- trance is dedicated (--111 pichues from National Parks Service) "Moss Cottage," today surrounded by Oakland's ?\tosswood Pink is a \,. ,- splendid example of Gothic architecture of French and English in- fluence as adapted to wood frame. The \\oodcn edging nuclei- the j� gables, called a bargeboard, is patterned after the Tudor houses of a- N England. \chile the oriels, the bays projecting under the gables and _ supported by corbels, recall the chateaux of France. Painted 'green todat, the exterior originally \\-its painted white with a tinted trim that accented the dramatic serolkork and winclow treatment. The architectural specifications for the house called for Gothic foams for the interior as \tell. ineludinc a molded Tudor arch sprun<_ over the . . :`, `�::� �„ ,':�_ �� I� w � � i t' ' — I � a � r` i� t � ` r �r� .� __I �. ■�� r , _:r:;zr� �� _ Yt �� - � � l� }i V Y °� � �� _ .. . _ ,; __ 30 January, 1983 Historic Commission One Salem Green Salem, MA REs Greenhouse Window at 106 Federal St. Application for Certificate of Appropriateness Dear Members of the Historic Commission, Please be advised that, as abutters to 106 Federal St, we support Richard and Suzanne Minturn' s application for a Certicicate of Appropriateness for the greenhouse window which is installed above the front door of their house. Very truly yours, Vit} 11421 �XN i gt�i i � ., --�- - - - ■ . � P � � IA4 F&DEQ.t��- S'T, S�cL.aV¢ Salem Historical Commission CITY HALL. SALEM, MA55, 01970 745-0215 M T>L E-� � - NOTICE OF DENIAL, OF APPLICATION FOR CERTIFICATE OF APPROPRIATENESS On Wednesday, February' l, 1984, at the Salem Historical Commission's meeting, the application for a certificate of appropriateness for the installation of a greenhouse window at 106 Federal Street was denied. This vote was based on the Commission's finding that such construction would be incongruous to the historic aspects and architectural characteristics of the surroundings and of the McIntire Historic District. In this finding, the Commission considered the architectural value and general design of the building and the relation of such features to similar features of buildings and structures in the surrounding area. Nancy G. Killam, Clerk of Commission, attest that thi is an accurate record of the vote taken, not amended or modified in any ay to this date. - Peabody o .. / 3 �rfn Peabody Fire Captain Joseph Mendonca inspects the burned car at the Dur( Route 1 as an unidentified man and a state trooper look on. The sa�rm,rope„ Car fire endangers restaurant Burger King almost brc By.CLINTON WD,DER restaurant employees ana the Peabody H( News Staff :ess than 10 patrons in the William Pchet PEABODY — The Route 1 restaurant to evacuate. Motorist damage to st Burger King narrowly averted rubbernecking caused the com- equipment whe being flame-broiled along with muter traffic on the southbound restaurant sh4 its hamburgers Monday morn- side of Route 1 to back up for a.m. "Most of 1 ing when a car engine caught about one mile. was confined t fire at the restaurant's drive- "I saw smoke coming out of the window," through window. Although the car, lifted the hood, and the "They were lu flames destroyed the front end flames came right out," said the hurt. The kids of the car and came close to ig- driver of the car, Harry Blake, passenger) m niting the building, the 17,of Wayland."I started freak- quick to wa. restaurant suffered only minor ing out and ran to tell the people inside." smoke damage and reopened in inside the Burger King." Franchise 21/2 house o rs. The employee at the drive- brought i ex There were no injuries in the through window, Tracy Fraser ty of Lynnfield,said Blake had jok- of the smoke-d. incident, which fire officials ingly ordered "two sandwiches clean kitchen believe was caused by a leaking and a fire extinguisher"when he returned for a fuel line that sprayed gasoline firs,saw smoke while givin his at 11:30 a.m. beneath the car's exhaust g restaurant to manifold. The Fire Depart- order through the microphoce in „ the rear of the restaurant. You have ment's Engine 7 extinguished "We thought he was kidding at who cleaned the blaze before flames could first," Fraser said. "So many Pchenny sai spread from the engine to kids are always making worked hard Burger King's roof and walls. g jokes tions for the when they order." - "If the fire had gone on Mendonca said the rests urant Pchenny another minute or so, it would suffered smoke damage but no damage ca have spread to the top of the flame damage.He noted that tt_e establishme building because the car was engine compartment of the car, more, whic right under the (drive-through) a late model Mercury Century Bowl 76 bo overhang," Fire Capt. Joseph Park station wagon, was fully Peabody in Mendonca said. "The building involved in flames when Engine you get that :would have been baked instead 7 arrived on the scene at approx- that deposit of the burgers." imately 9 a.m.The damaged car machines, Smoke that poured into the was towed by a wrecker from said. drive-through window forced Gaeta's Ro 4reo station. fortunate." a- THE SALEM, MASS., EVENING NEWS—TUESDAY, JULY 31, 1984 7 Panel miffed by Salvo move, By JOHN LAIDLER for renovation in a historic News Staff district. SALEM — A recent decision The couple appealed the deci- by Mayor Anthony V. Salvo and sion to Superior Court and in- City Solicitor Michael E. eluded a request for damages, O'Brien to intervene in an ap. O'Brien said. peal filed against the Historical He said after the appeal was . Commission has reportedly ruf- filed, he was contacted by fled the feathers of commission Christopher Cabot, an attorney members. representing the petitioners.-' Commission Chairwoman "After discussing the matter, Elizabeth B. Wheaton said she with the attorney and the chair-' had spoken with Mayor Salvo to man of the commission, I ' express her concern "that he thought it would be in the best in- may be involved in the board's terest of the city to agree to a: decision." judgment in the plaintiff's. Both Salvo and O'Brien behalf." defended the action, however, O'Brien said city ordinances and emphasized they were not don't give the commission seeking to interfere with the authority to review changes » p1f. commission's affairs. made in windows where no.. According to O'Brien, the ap. alteration of the building is to> peal was filed in March by take place. He said in this case, Richard Minturn and Suzanne "They didn't change the area of•' Freeman of 106 Federal St. The the window, just the type of two, who are husband and wife, window." took issue with a decision by the He said he conveyed his opi. Historical Commission denying nion to the mayor, who agreed them a "certificate of nonap- the case "wasn't worth the plicability" needed to install a litigation." _ window at their home. With Salvo's consent, O'Brien . the Salem The solicitor said the board reached an agreement whereby as held on denied the request because it the court issued a judgment in felt the plans did not meet re- favor of the plaintiff. "They've. irk Wll iam n quirements under the statutes got their window," he said. "That was part of the '. success n (��s negotiation." Whecomment well 's Sucon theaton commiss on'swuldt concerns; beyond saying they would pro; rd Mills by Shetland Park. They have canals bably be discussed at a futures Dy up there, too. We have our canal (by the meeting.She said a date for that as N04 River)." discussion could be set at the ,a He said the Park Service has enlivened commission's Wednesday night A the city. Park rangers are visible session. ry throughout the city giving tours. The city's Salvo said he told Wheaton in in canals are filled with boat riders. his meeting with her that he' would become involved in a The mayor said there is even more poten. 11, - d tial for the Park Service here. "SaleHistorical Commission case m has "only if I'm called in. I don't in. ig more to offer than Lowell. We're right on tend to interfere with their deci- the seacoast. We have a lot more history to cions. In this particular case, ee offer. We have over a million tourists a the (the petitioners) were ge, he year, Lowell has only 500,000. They had the to take et to court." o. s none before; they've come a long way." He added the change proposed: He said because Salem is built up, there by the petitioners "wasn't that- may not be much that can be done in the drastic. It just involved'a couple way of adding new facilities.But he said he of screws to hold in a window." . can envision a Park presence including O'Brien said he had "heardi Winter Island and much of Derby Street. some members are not happy with the actions he and the, "The Service could take tours back and mayor had taken.He said he had forth. Maybe we could expand our trolley agreed to meet with the cars — keeping it private." commission. OLR,, r kfCC�lgDa Salem Historical Commission CITY HALL. SALEM. MASS. 01970 745-0215 February 16, 1984 Richard S. Minturn 106 Federal Street Salem, MA 01970 Dear Dick: As you know, at our meeting of February 1, the Commission reviewed your two applications with regard to the greenhouse window at 106 Federal Street. As is customary in cases when an application is denied, I am sending you a copy of both denials, with the rationale behind each described in somewhat greater detail below. The Commission first considered your application for a Certificate of Non-Applicability, denying that application on the grounds that greenhouse windows do not fall in the category of items exempted from the Commission's jurisdiction. The Commission views the greenhouse type window as one particular form of window treatment, distinct in form and purpose from the exempted storm window and, like other changes to window form, requiring the Certficate of Appropriateness in historic districts. Your second application, for the Certificate of Appropriateness, was also, however, as you know, not approved. The Commission gave careful consideration to the historical appropriateness of the window at both its meeting of December 7, 1983, and again, taking into account your presentation, at this meeting. Denial of the application is based on the Commission's view that a contemporary greenhouse window is incongruous to the historic aspects of the district in its material and design. Much concern was expressed about the impact of this element of the architectural integrity of the facade of the building and the historic streetscape which the Commission is charged with preserving and protecting. The Commission recognized the sense in which the window's location on your house recalls the earlier oriel window type. It found, however, the contemporary detailing and material incompatible with the wooden sash original to the building and characteristic of this historic neighborhood. It is important that you are aware that the Commission's actions in the past have indicated an appreciation for homeowner's interests and preferences in incorporating elements such as the greenhouse window and skylight into Richard S. Minturn Page 2 February 16, 1984 contemporary lifestyles. Generally, therefore, the Commission has responded favorably to applications for such elements when they have been located away from the principal and most public facade. Rear els, kitchen wings, and gardens have traditionally evolved and changed according to demands and preferences of the period, and the Commission would encourage you to mmnsider such an alternative location for the window. Your presentation before us was most thoughtful and complete and I and our members appreciate the care with which it was msde. The Commission is, of course, most anxious that a mutually satisfactory resolution can be reached, and we will be happy to make ourselves available to you at your convenience to explore other options. Please do not hesitate to call me if you would like to discuss the matter further or if there is any way I can be helpful. Very truly yours, Eliza th B. Wheaton Chairman ngk Encl. cc: Building Inspector City Clerk COMMONWEALTH OF MASSACHUSETTS i ESSEX, ss. SUPERIOR COURT CIVIL ACTION NO. RICHARD S . MINTURN and * {' y S 5 SUZANNE P . FREEMAN, Plaintiffs * V. * COMPLAINT SALEM HISTORICAL COMMISSION, Defendant * * * * * * * * * * * k * A * •4 1. The plaintiffs, Richard S. Minturn and Suzanne P. Freeman, own and-reside at the residence located at 106 Federal Street, Salem, Massachusetts. 2 . The defendant, Salem Historical Commission ("Commission") , is the duly constituted historic district commission for the City of Salem within the meaning of Mass. General Laws Chapter 40C. 3. On cr after February 16 , 1984 , the Commission caused a Notice of Denial of Application for Certificate of , Non-Applicability, a copy of which is attached hereto as Exhibit "A" , to be filed with the City Clerk, of Salem, I Massachusetts. 4 . On or after February 16 , 1984 , the Commission caused a Notice of Denial of Application for Certificate of Appropriateness, a copy of which is hereto attached as Exhibit "B" , to be filed with the .City Clerk of Salem, II: Massachusetts. i. t L II i f ~ I 5 . The plaintiffs are persons aggrieved. by the determinations of the Commission reflected in the aforesaid notices. WHEREFORE, the plaintiffs respectfully request this Court to annul the aforesaid. determinations of the Salem Historical Commission on the grounds that they are unsupported by the evidence and/or exceed the Commission' s lawful authority, or alternatively that this Court make such orders as justice and equity require. Richard'_S• P7inturn 1 17 r n n yy Suzanne P.. Fredman Dated: March 6 , 1984 1e- FAA.t2b 110TvCZ J µ1t Olglb 1 I . i I I I I� l Salem 141'$torfcaf C6r►imissf®fi CITY HALL. SALEM. MASS. 01270 745-0215 ,tOIICE OF DENIAL OF APPLICATION FOR CERTIFICATE OF NON-APFLICABYLITY On Wednesday, February 1, 1984, the Salem Historical Conrnission voted to deny the 'application for a Certificate of tion-Applicability for installation of a greenhouse window at 106 Federal Street. This vote vas based on the con-mission' s findings that the application involves an exterior architectural feature subject to review by the Corgi fission. Nancy G. Killam, Clerk of Commission, attest that thi is an accurate record of the vote taken, not amended or modified in any way. to this date. Exhibit B =J jalenrr Historical Comnilssfol CITY HALL, SALEM. MASS. 01970 745-0215 NOTICE OF DENT-AL OF APPLICATION FOR CERTIFICATE OF APPROPRIATENESS On Wednesday, February"1, 1984, at the Salem Historical Cou ission' s :•eeting, t',;e application for a certificate of appropriateness for the installation of a greenhouse window at 106 Federal Street vas denied. This vote was based on the Commissions finding that such construction would be incongr-aous to the historic aspects and architectural characteristics of the surroundings and of the McIntire Historic District. In this finding, the Co-=? ission considered the architectural value and general design of the building and the relation of such features to similar features of buildings and structuurre/s in the surrounding area. I 17L�{C 0567& 1 Z,, Nancy G. rillem, Clerk of Ccm—nission, attest that thi is an accurate record of the vote taken, not amended or modified in any •ay to this date. M E M O R A N D U M TO: John H . Carr , Jr . FROM : Julie Lovell Re : Salem Historical Commission Date : August 1, 1984 This memorandum addresses the issue of whether a mayor can supersede the decision of a commission established by the state. The relevant facts are as follows : a Salem resident installed a greenhouse window in his home located in the historic district. He subsequently applied for a certificate of appropriateness and certificate of non-applicability from the Historical Commission. The Commission denied the applications and the resident initiated an appeal to Superior Court pursuant to M.G. L. c . 40C §14A. The city solicitor refused to defend the action without enumerating his reasons and , after obtaining the mayor 's approval , entered into an agreement for judgment with the disgruntled applicant. Discussion: It appears from a review of the general legal doctrines of delegation and separation of powers that the mayor had no power to interfere with the decision of the Commission. The Historical Commission was created by M.G. L. c . 40C §4 and is an independent legislative agency with the power to make decisions . The statute confers on the Commission "a substantial measure of discretionary power with respect to the appropriate- ness of exterior architectural features and congruity to historic aspects of the surroundings and the district . " Gumley v. Board Of Selectmen of Nantucket, 371 Mass. 718, 358 N. E. 2d 1011, 1015 (1977 ) . The statute also provides for a review procedure ( §12 ) and an exclusive appeal mechanism ( §12A) for aggrieved applic- ants . Appeals under the statute are "intended to prevent abuse by decisions based on peculiar individual tastes and are not taken as transferring the discretioary power of the commission. " Id. In Lumley, The Historic Commission decided not to issue certificates of appropriateness to landowners seeking to con- struct a large residential development. The court held that the decision of the Commission should be annulled since it was based on legally untenable ground, but that the court itself would not issue the certificate of appropriateness since that was the exclusive realm of the commission. In the present case , the Commission alleges it exercised its discretion without abuse and its decision was based on a careful review of the facts . The applicant disagreed with the decision and has followed the appeal route prescribed by statute. The Superior Court judge and not the mayor is the individual who must review and alter the deci- sion of the Commission. This is mandated by the clear language of §12A: "The court shall hear all pertinent evidence and shall annul the determination of the Commission if it finds the deci- sion of the Commission to be unsupported by the evidence . . . or may remand the case for further action by the Commission . . . the remedy provided by this section shall be exclusive . " 2 - Furthermore, the agreement for judgment signed by the Salem city solicitor not only annuls the Commission's decision but commands the Commission to issue the previously denied certificates of applicability and appropriateness . According to the Gumley case, this is clearly inappropriate since even the Superior Court judge has only the power to remand and cannot order the issuance of the certificate. Under the administrative law doctrines of delegation and separation of powers , the mayor cannot supersede a decision by the Commission. Although individual members of the Commission are appointed by the mayor , the Commission itself is a legisla- tive agency created by state law. In Humphrey's Executor v. United States, 295 U.S. 602, 55 S. Ct. 869 (1935) , the Court held that Congress could restrict the powers of the President to remove members of the Federal Trade Commission. The court commented that the FTC, an agency of Congress, was charged with the important responsibility of formulating legislative policy and adjudicating violations of law and that in order to perform its duties properly, the FTC must be free from executive control. The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the Statute . . . such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute , must be free from executive control. 295 U. S. at 628. 3 - The Salem Historical Commission is also a statutorily created administrative body empowered to consider the facts of each situation before it and issue or deny applications for certifi- cates of appropriateness , non-applicability or hardship and perform additional duties . M.G. L. c . 40 §56-11. If the mayor is permitted to manipulate decisions by the Commission in defiance of the statutory mode of appeal , such an act would vest executive control over a creature of the legislative department, clearly violating the doctrine of separation of powers . In City of Troy v. United Traction Co. , 202 N. Y. 333, 95 N.E. 759 (1911 ) , the court held that when the Public Service Commis- sion had the power to decide the frequency of operation of street cars , the city had no power to require more frequent service. The court stated that the commission, a tribunal trained to consider and determine controversies, was established to promote uniformity and consistency in operation. "Construction of the law that would permit any municipality to disregard the orders of the Commission would cause confusion of authority and make no effect of the work of the Commission for which it is established. " 95 N. E. at 761. Thus , when there has been a specific delegation by the legislation to an agency, such as in the case of the Salem Historical Commission, the municipality may not annul an order of the agency. - 4 - In Logansport v. Public Service Commission, 202 Ind. 523, 177 N. E. 249 (1931) the Indiana court dealt with a similar issue. The court held that when the legislature delegated to the commis- sion the exclusive power to regulate rates , the grant supersedes any grant previously made to the city. In the present case, the state legislature delegated exclusive powers to the Historical Commission to make decisions on the appropriateness of architec- tural changes in the historical district. Once the commission obtained this power , the municipality could no longer effectively take it away by making a settlement in disregard of the decision. Rossi v. School Committee of Everett, 354 Mass . 461 (1968) , is a case involving facts similar to the present action. In that case a school janitor was fired by the Everett School Committee, and thereupon appealed the dismissal to the Massachusetts Civil Service Commission. At the Commission hearing, an agreement for judgment was entered into between the Everett city solicitor and the janitor whereby the janitor would lose his job for a year , but would be reinstated at the beginning of the following school year . When the year had passed, the School Committee refused to reemploy the janitor, arguing that the city solicitor exceeded his authority in entering into such an agreement. The janitor then filed an action in Superior Court attempting Mve enforce the agreement, which was subsequently dismissed . In upholding the dismissal, the Supreme Judicial Court of Massachusetts held, at 461, that 5 - the city solicitor had no authority, express or implied, to make the 'agreement. ' The Committee requested and expected the city solicitor to contest Rossi ' s appeal from its order discharging him. It did not delegate to the city solicitor the right to exercise its perogatives or powers under G. L. C. 31, §43(a) , as the appointing authority. It is submitted that the appellate procedures outlined in G. L. c . 40C supercede any contrary authority to compromise suits against the City of Salem, as may be inferred from §2-182 of the Salem City Code . Section 2-182 reads , in pertinent part , " [the city solicitor] may settle any suit against the city upon approval of the mayor , the president of the city council and the chairman of the finance committee. " This is based on ample case law holding that where state law conflicts with local ordinance , the state statute prevails. But it should be noted that even if this were not the case , the above requirements were not met in that, apparently, the only approval obtained was that of the mayor . 6 - 354 Mass. 448 ;1 Mass. 461 461 in.v.Northwestern Fire&Mar.Ina.Co. Rossi v.School Committee of Everett. Ie Bank from proving cancella- the problem of appellate review. (b) The majority holding t (Northwestern) in the second will gravely affect judicial administration. There is the very issue rests with the Bank. The real prospect that litigants, in order to exploit or in order to despite the Bank's demon- :.void the consequences of the majority holding, henceforth eellation in the case not%• under %,ill feel obliged to explore and fully litigate issues which rence to the "strong and oft- heretofore they seldom have had reason or opportunity to be ng each litigant to one oppor- r:pecially concerned with. To safeguard a litigant's rights e merits," means, I must as- and fulfill his professional duty counsel may feel obliged to mrtunity to litigate . . . [an] ask for, and judges may well be under a duty to make, find- Irrie, Mutuality of Collateral Ings of fact which are not decisive of the case being tried. hard Doctrine, 9 Stan. L. Rev. Juries will be asked to answer special questions. The role s record that the Bank did not of the pretrial judge will change if not disappear. Greater ; irst case, that it did have that court congestion, longer delay and heavier expense to the 1 but the fruits of victory in the parties and to the public would seem to be inevitable. fromit bythe majority opinion. I submit that the judge was entirely right in denying ttions which need not be fully request No. 20, that the exception should be overruled and d nevertheless be mentioned. that the merits of the other exceptions should be examined. 2cludes the Bank or any party er getting appellate review of c policy. Under our practice it issue in the fust case because FRANK K. ROSSI VS. SCHOOL CO1I1IITTEE OF EVERETT & d to the Bank in that case and another." to ultimate finding against the Middlesex. April 1, 1968.—June 7, 1965. 1 appellate review of that issue e majority hold that the issue Present: Nvmm-is, C.J., wnITTEMORE, KIRK, SPIEGEL, & REARDON, JJ. incidental finding made by the Municipal Corporations, Officers and agents, City solicitor. Agency, tttd fair opportunity to litigate Scope of authority or employment. Attorney at Law. where there is no opportunity After the school committee of a city as appointing authority had dis- Il' oil here. The majority dispose charged a civil service employee and had requested the city solicitor , the comment, "We need not "to represent it" at a hearing before the Civil Service Commission nIs of obtaining appellate re- sou ht by t11e employee, the city solicitor,although"accompanied"by the superintendent of schools when representing the school committee essential to a final judgment at the hearing before the commission, had no authority there to make here was contended for and an "agreement" with the employee and his counsel that the action of the school committee should be modified to a suspension without pay in which it was made) to theI tar a stated period; and s decision of the commission making the Because this comment is mndifrcation oil the sole basis of the"agreement" could not stand and that the Bali]: did not try to did not cutitte the employee to reinstatement upon expiration of the d for by its opponent in the stated period of suspension. Iajority's lack of concern with I 'The treasurer of the city of Everett. I 462 354 Mass. 461 Rossi v.School Committee of Everett. c'4 PETITION, for a writ of mandamus filed in the Superior ` Court on September 28, 1964. By order of Sullivan, J., judgment dismissing the petition was entered. I John P. Forte for the petitioner. Alfred Levenson for the School Committee of Everett. KIRK, J. Rossi appeals from the dismissal of his petition for a writ of mandamus to compel the school committee of Everett (the committee) to reinstate him to his position as Permanent Junior Building Custodian and to compel the city treasurer to pay him back wages from September 5, 1964. The case was heard and decided by a judge of the Superior Court on the petition,the answers and a statement of agreed facts which, in summary, disclose the follmxing. After a hearing which complied with the requirements of G. L. c. 31, § 43 (a), Rossi was discharged by unanimous vote of the school committee because of serious misconduct involving a male pupil at the school. Rossi seasonably requested a hearing by the Civil Service Commission (Commission) under G. L. c. 31, § 43 (b). On September 18, 1963, a pro forma hearing was had before a hearing officer; no witnesses were heard; the hearing was continued to October 4, 1963. By letter dated September 18, 196.3, the committee re- quested the city solicitor of Everett "to represent it at this ' formal hearing on October 4, 1963; and [stated] that the t Committee will be glad to coo supplying P you with 41 - cooperate in whatever information it may have with regard to the entire -= matter." At the hearing on October 4, 1963, the city solicitor represented the committee. IIe "n as accompanied by" the superintendent of schools who also acts as secretary for the committee, but is not a member of the committee. The hearing was completed on October 4, 1963. At its conclusion, Rossi's council and the city solicitor submitted to the hearing officer a paper dated October 4, 1963, bearing the caption "Agreement" which read as follows:—"It is hereby agreed that the Appointing Authority's decision of ' September 4, 1963 be modified so that it reads `Voted to suspend you from your position as custodian until Septem- A i I 354 Mass. 461 ';54 Mass. 461 463 ee of Everett. Rossi v.School Committee of Everett. mus filed in the Superior icer 1, 1964 without pay.' Further Frank K. Rossi waives :11 right to appeal and other remedies he may have." The nt dismissing the petition atcment was signed by Rossi. Near the left margin of the :aper below the quoted recital were the words"Assented to," ;eneath which appeared the signature of Rossi's counsel and ommittee of Everett. the signature of the city solicitor followed by the words dismissal of his petition "City Solicitor for appointing authority." the school committee of On February 26, 1964, the Commission voted that the vte him to his position as action of the committee in discharging Rossi be modified •dian and to compel the to a suspension without pay from September 5, 1963, to s from September 5, 1964. September 5, 1964. The Commission notified the parties vy ajudbe of the Superior that "after due consideration of all the evidence" the Lnd a statement of agreed modification was made"as agreed between the employee and the following. After a the appointing authority." The committee refused to file a 'luirements of G. L. c. 31, reinstatement form as instructed by the Director of Civil unanimous vote of the Service. An exchange of letters between the Commission and misconduct involving a the committee followed. The committee insisted that seasonably requested a although the city solicitor represented it at the hearing, mmission (Commission) he had no authority to make the agreement with Rossi, that eptember 18, 1963, a pro the committee was the appointing authority and as such had dng officer; no witnesses unanimously voted to discharge Rossi, that the vote re- iued to October 4, 1963. mained unchanged and that the committee had never been a 1963, the comm ittee re- party to any agreement to the contrary. The Commission, "to represent it at this on the other hand, took the position that the city solicitor and [stated] that the "as the authorized representative of the appointing authority ' e in su 1 •in . . . had the power to enter into the agreement upon which pP 3 g you with I Lith regard to the entire the Commission acted." Ober 4, 1963, the city Since there is no express agreement to the contrary, lie 'rwas accompanied under G. L. c. 231, § 126, we are at liberty, as was the ho also 'lets as secretary trial judge, to draw inferences from the facts and documents tuber of the conunittee. i stated in the case to determine facts for ourselves and 'tober 4, 19G3. At its reach such conclusions as we think are warranted. Cam- it city solicitor submitted bridge v. Somerville, 329 11lass. 658, 660. Yates v. Salem, October 4, 1963, hearing 342 Mass. 460, 461. �I Id as follows:— "It is The letters from the Commission to the committee show Authority's decision of I that but for the purported "agreement" submitted to the I hat it reads 'Voted to hearing officer the Commission's decision to modify the ustodian until Septem- appointing authority's order would not have been made. I 464 354 Mass. 461 Rossi u.School Committee of Everett. We think that the city solicitor had no authority, express or implied, to make the "agreement." The committee requested and expected the city solicitor to contest Rossi's appeal from its order discharging him. It did not delegate to the city solicitor the right to exercise its prerogatives or powers under G. L. c. 31, § 43 (a), as the appointing author- ity. There is nothing in the Revised Ordinances of the city, which are included in the agreed facts so far as they relate to the powers and duties of the city solicitor, conferring upon him the power to act as he presumed to act here. Nor was there apparent authority- in the city solicitor to make the agreement. He had not been held out by the committee to Rossi or to the Commission as empowered to do more than to use his professional talents to protect his client's interest at the hearing. We attach no significance favorable to Rossi to the fact that the superintendent of schools "accompanied" the city solicitor. The superintendent had no authority to change the committee's vote as the appointing authority. r The superintendent's correspondence with the Conunission on behalf of the committee both before and after the October hearing shows that neither he nor the members of the com- mittee were aware of the nature or contents of the paper submitted to the hearing officer by counsel. It is our conclusion that the city solicitor acted without authority and that neither Rossi nor the Commission had the right to rely upon the city solicitor's representation, implied by his assent to the agreement, that he had such authority. Faced with this factual situation we apply the rule stated in Precious v. O'Rourke, 270 \lass. 305, 305. "When. the attorney undertakes to bind his client by an 3 agreement to compromise his client's substantial rights, the opposing party must ascertain at his peril whether the attorney has authority to make the settlement." The Commission's decision, hating been based upon an unau- thorized compromise agreement between Rossi and the city solicitor, cannot stand. Precious v. O'Ruarkc, 270 Mass. 305, 30S, 309. The judge's order was correct. Judgment affirmed. §2-167 ADMINISTRATION §2.181 `} Secs. 2-167,2-168. Reserved. Editor's note—Sections 2-167 and 2-168,relative to the preparation,distribu- tion,numbering, printing and binding of annual reports,derived from Code 1952, Ch.2,§§49.51,were repealed by Ord.of Sept.24,1981,§2. Secs. 2-169-2-178. Reserved. ARTICLE VI. CITY SOLICITOR* Sec. 2-179. Appointment, removal; term; qualifications. The mayor shall appoint and may remove, without confir- mation by the city council, a city solicitor who shall maintain his law office in the city and shall be attorney and counsellor in the courts of the commonwealth. The city solicitor shall hold office until his successor is appointed and qualified. (Ord. of 7-20-70, § 1) Charter reference Appointment and removal of city solicitor, § 60. See. 2-180. Compensation. The city solicitor shall receive such compensation as the city council may determine, which shall be in full for all serv- ices he may be called upon to perform under the provisions of this article. (Code 1952, Ch. 2, § 57) Cross reference Compensation of city solicitor, § 2-91. Sec. 2-181. Duties generally. It shall be the duty of the city solicitor to commence and prosecute all actions and suits to be commenced by the city; to defend all actions and suits brought against the city; to appear as counsel in any other action, suit or prosecution which may involve the rights and interests of the city, if requested to do so by the mayor or city council; and defend the officers of the city, in any suit or prosecution against them, for any act or omission in the discharge of their offi- cial duties, wherein any estate, right, privilege, ordinance, 'Cross reference—Claims against the city, § 2-537 at seq. State law reference City solicitor defined, M.G.L.A, c.41, § 7. Supp.No.8 207 V § 2-181 SALEM CODE § 2-182 or act of the city government, or any breach of any ordinance may be brought in question. He may take such steps and in- cur such expense, to be charged to the proper appropriations, in prosecuting and defending suits, as he may deem neces- sary; and may settle any suit against the city upon approval of the mayor, the president of the city council and the chair- man of the finance committee. He shall also appear before the general court of the commonwealth, or before any com- mittee thereof, whenever the interests or welfare of the city may be directly or indirectly affected, if requested to do so by the mayor or city council; and shall perform all other profes- sional duties incident to his office which may be required by the mayor or the city council; and he shall, when requested, furnish the mayor, any member of the city council, the school committee, or any board or officer in charge of a department of the city government, his legal opinion on any subject or question relating to the discharge of their official duties; provided, however, that if such opinion is desired in writing, the question submitted for his consideration shall also be s - stated in writing. The city solicitor shall examine all claims presented to him, and if a settlement thereof seems to him advantageous for the city, shall approve the same. (Code 1952, Ch. 2, § 64) Sec. 2-182. Drafting legal instruments. The city solicitor shall draft, or cause to be drafted, all bonds, deeds, contracts, and all other legal instruments which may be required of him by the city council, any board or Supp.No.8 208 e § 2-182 ADMINISTRATION § 2-196 purchasing agent, or which by law, usage and agreement are to be drafted at the expense of the city. (Code 1952, Ch. 2, § 55) Sec. 2-183. Annual report. On the first day of April in each year, the city solicitor shall make a report in writing to the mayor and city council concerning all suits or legal proceedings in which the city is interested, which are pending or have been determined dur- ing the preceding year, with a brief description of each case, and such other information as, in his opinion, the interests of the city may require. (Code 1952, Ch. 2, § 56) Sec. 2-184. Appointment of assistant city solicitor; duties; term; compensation. The mayor shall appoint and also may remove, without confirmation by the city council, an assistant city solicitor, who shall perform all such duties as are required of him by the city solicitor and who shall hold office until his successor is appointed and qualified. Until changed hereafter by any general or special ordinance relating thereto, the position of the assistant city solicitor shall be included in Job Group VII, with the weekly and annual schedules of compensation relat- ing thereto, in the general classification and salary schedule adopted in the year 1970. (Ord. of 7-20-70, § 1) Sec. 2-185. Employment of assistants; compensation. The city solicitor may appoint or employ such clerical a:. other assistants, except the assistant city solicitor provided for in this article, as he may deem necessary and fix their compensation within the budget of his office as approved by the city council in the amounts appropriated therefor. (Ord. of 7-20-70, § 2) Secs. 2.186-2-196. Reserved. Supp.No.10 209 t � e$Yc. .',ep.1uJ�e3RYtatil6lakSt __ _. r. `-' SUPERIOR COURT 84- 515 RICHARD S . MINTURN, ET AL vs. SALEM HISTORICAL COMMISSION 744-7104 COUNSEL FOR PLAINTIFF _ COUNSEL FOR DEFENDANT Christopher Cabot ciP Hauserman, Davison & Shattuck One Boston Place Boston Mass 198 RATE NR W)CKLT EN tRICti All UI I TONAL I'LAINT11*15 Mar 6 1 _Complaint Sucnnnc• 1'. ?'rhl•r7:m : _- — I _ --- _riyi 1 action rnvpr__ chner rCAP ADDITIONAL DEFENDANTS 1 CONTRACT (OR TORT) .2 MOTOR VEHICLE TORT 3 OTHER TORTS 4 LAND TAKING 5 OTHERS X COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION NO. i C Ja �f r, 3.7-a3 RICHARD S . MINTURN and * MM SUZANNE P . FREEMAN, Plaintiffs r * V. * COMPLAINT SALEM HISTORICAL COMMISSION, Defendant * 1. The plaintiffs, Richard S. Minturn and Suzanne P. Freeman , own and reside at the residence located at 106 Federal Street, Salem, Massachusetts. 2 . The defendant, Salem Historical Commission ("Commission") , is the duly constituted historic district commission for the City of Salem within the meaning of Mass . General Laws Chapter 40C. 3 . On or after February 16 , 1984 , the Commission caused a Notice of Denial of Application for Certificate of Non-Applicability, a copy of which is attached hereto as Exhibit "A" , to be filed with the City Clerk, of Salem, Massachusetts. 4 . On or after February 16 , 1984 , the Commission caused a Notice of Denial of Application for Certificate of i Appropriateness, a copy of which is hereto attached as i' Exhibit "B" , to be filed with the City Clerk of Salem, Massachusetts. 5 . The plaintiffs are persons aggrieved' by the � determinations of the Commission reflected in the aforesaid notices. WHEREFORE, the plaintiffs respectfully request this Court to annul the 'aforesaid determinations of the Salem Historical Commission on the grounds that they are unsupported by the evidence and/or exceed the Commission' s i lawful authority, or alternatively that this Court make such orders as justice and equity require. Richard S . Minturn i Suzanne P. Fre man Dated : March 6 , 1984 R, icljP ,ca S . � � rJTv2.J lbLp ��b�2p` ST AiTY C H 12- 6�WAV) Z6V�rAV) D-�--V N 6Di� J 5HA- -1 L-,- � To n7 :FLALi� -- -77--7- -- --_ i ra Exhibit A �alerr� Historical Coir-m-Hfss1of] CIT' MALL. :;—._Eh". MASS O•s�o 745-0:15 NOTICE OF DENIAL OF APPLICATION FOR Ci::.:??IGATE OF NON-APPLICABILITY On Wednesday, February 1, 1984, Salem Historical Commission voted to deny the application for a .', - -i_icate of Non-Applicability for installation of a greenhouse wir:ir•: a[ 106 Federal Street. This vote was based on the Coumission's : - .._.-rs that the application involves an exterior architectural .., :ro subject to review by the Cor.-:.ission. I, G. Fiillam, Clerk of Commission, attest that thi, is an accurate record e the vote taken, not amended or modified in any way to this date. LJVLIa, JJ C.A.-No. 84-515 * RICHARD S . MINTURN and JI SUZANNE P. FREEMAN, Plaintiffs * V. * SALEM HISTORICAL COMMISSION, Defendant * AGREEMENT FOR JUDGMENT TO THE CLERK OF THE ABOVE-NAMED COURT: It is hereby agreed that the following docket entry may be made in the above-captioned action: i' "Judgment shall enter for the plaintiffs, Richard S . Minturn and Suzanne P. Freeman, on the issue of the denial by the defendant, the Salem Historical Ii Commission, an instrumentality of the City of Salem, of plaintiffs ' applications for a Certificate of Non-Applicability and a Certificate of Appropri- ateness . Service and jurisdiction are hereby accepted, and all stays, reports and appeals are hereby waived. The defendant ' s determinations of February 1, 1984 with respect to such applications are hereby annulled, and the defendant shall issue to plaintiffs forthwith appropriate Certificates of Non-Applicability and Appropriateness . " lRICHARD S . MINTURN S SALEM HISTORICAL COMMISSION, i SUZANNE P . FREEMAN an instrumentality of the By their attl6rney, CITY OF SALEM �I B its attorney, IChristopher Cabot Ma%hael E. O'Brien ; HAUSSERMANN, DAVISON & SHATTUCK CITY SOLICITOR, CITY OF SALEM One Boston Place 187 Federal Street Boston, Massachusetts 02108 Salem, Massachusetts 01970 (617) 723-2920 (617) 744-3363 i Dated: May ,4 , 1984 Mme. r ;r >� I I i i i �I _F SERVICE I, Christopher hereby certify that on the I i date hereof I served a c .he "Agreement for Judgment" i by mailing a copy thereof , postage prepaid, address Michael E . O'Brien, City � I, Solicitor for the City 187 Federal Street, Salem, Massachusetts 01970. i Date � pher Cabot I i i I 11 I I I i I i I�