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394 HIGHLAND AVENUE - ZBA (3)� �� �'9� � �� �?� � -�, ��� � ,� �s�� �' J �J i��� . �/�/mob � ���; ��� � �' �; �. ,� i ��,cavyr4.� of 'alrm, assadjuse##s 3 �SattrD of 4pett1 MINUTES OF THE BOARD OF APPEAL EXECUTIVE SESSION JANUARY 27 , 1988 Members present: James Hacker, Chairman; James Fleming, Vice Chairman; Richard Bencal , Secretary; members Edward Luzinski , and Peter Strout. Chairman Mr . Hacker: Mr . O ' Brien would like to address us . Mr . O ' Brien: Yes , Mr . Chairman, I requested this brief hearing of the Executive Session, someone should make a motion to go into Executive Session, for the purpose of discussing stragety pending litigation, come for- ward and re-adjourn to open session. Mr. Fleming: I move at this time that the Board of Appeal under the provision of Chapter 66 , Section 10 o to Executive Session for the purpose of discussing litigation. Mr. Hacker: Can we include Asst. Building Inspectors , City Planner, Ward Councillor, and Student Intern. Mr. Fleming: I so accept. Seconded by Mr. Bencal, does that include Sol , the custodian? Unanimously voted. Mr . Fleming: I think the motion has to be amended, to include the custodian. Mr . Fleming moved that the previously made motion to cover the custodian. Seconded by Mr . Bencal. Unanimously voted, the custodian can stay. Mr. Hacker : The meeting is recessed, the Executive Session is now in order . Mr . O' Brien: Mr. Chairman, I wanted to discuss the Stasinos matters ,. just to give you an update on what is happening, this is going on like three years now with various suits . The first is a challenge to a zoning change, in which Mr . Stasinos was successful . Mr . Bencal: Michael should this be on a separate tape? Mr. O'Brien: Not necessary, was successful in prosecuting that appeal, basically what happened was a proceedual mix up of one day of posting over to City Hall, we went through a whole trial and that concluded that particular matter . What happened was that property was originally residential single family, there was an attempt to zone it into BPD. That attempt failed and a subsequent attempt to resolve the area into a BPD was successful, but was excluded from that particular matter. That concluded that case . The second case evolved when he came in to the Board of Appeal for Variance from single family use to multi-family use, condo ' s . That Variance was denied, he appealed that in Superior Court and as a result of negotiations and the feelings as to what the particular use in that area should be, we entered into an agreement were he could put a certain number of condos up there. As part of that agreement there was certain requirements on his part. 1 . That is a bone of contention now, and is the conveyance of a certain part of the land for a soccer field. The third case, and that is still outstanding, because he has brought a further complaint on that case, at some point last year his building permits were revoked. He ' s alleging that period of revocation, if you count the days runs into about 6 weeks , he was damaged to the tune of 8 to 10 thousand dollars per day, thats his allegation. Lt would not surprise me further, to make an allegation that because of the economic situation that he was unable to sell the amount of units that he could of sold if he hadn' t been delayed in his building process . The third suit involves strickly a suit in reconveyance of land that conveyed as part of that previous agreement with the Board of Appeal to allow to build condo units . I met with his attorney on January MINUTES EXECUTIVE SESSION 1/27/88 CONTINUED PAGE TWO l Fourteen because the attorneys had set up a deposition of Mr . Kavanaugh and I know for awhile he wants to propose a lot of other City Officials , I suggested to him before we get into that process because once we get into the deposition process your almost into a trial process . Things come out in depositions and discovery more or less lock into it and it can limit your defense posture and subsequent trial . Essentially indicated to him I wanted to ask the Board for some authority on this particular case or cases for settlement purposes , that means to say that at some point in time, wether it be on trial posture or discovery posture that if I think that it would be in the best interest of the City of Salem to settle with Mr. Stasinos thatI be given that discretion by the Board here and now. The problem being that when your in a trial situation and discovery depositions to think I don' t have the grace period of coming back to the Board and asking for specific authority. Now the worst scenario in this case I suppose could be that #1 he could get back his land. I talked to his attorney about that and he agreed he could do that in consideration of certain things . His attorney said to me, well , he did agree that He thinks Mr. Stasinos , he got the business along the way from the City on other things , particular revocation of his building permits , so his argument, he ' s Stasinos , is not living up to and the City did not live up to their part of the bargain. This argument can come out in trial at some latter date. The worst scenario would be not only could he get back his land, #2 he comes up with some type of damages because of this alleged delay. I think it would be a very bad situation for the City both have to convey the land to him and also come up with 3 or 4 or 5 Hundred Thousand Dollars , that would be the worst. I would like at some time the authority, I spoke to his attorney and apparently at this particular time they would give some very good consideration and droping everything if they could get the land back. I don ' t feel at this point we sould give him the land back, however, the point I 'm trying to make is at some point in process I may come to that determination and that the type of authority I 'm looking for. I don' t want to get into the merits of the case because his most recent case is asking for reconveyance of the land is basing his complaint bassically on a couple of California cases which are relatively new. The first Evangelican, the Lutheran Church VS the County of Los Angelos , another case, an older case, basically those are both Supreme Court cases . They deal with a very good concept, and the concept is the regulatory taking, in other words , zoning ought to be forced on Governmental Agency, looking for some type of permit and that Governmental Agency saying yes we ' ll give you the permit but you ' ll have to do certain things . And those certain things , that person ahs to do somehow diminishes the value of his property. Were getting into a whole new field of law in that respect. Those cases out there are very define the Supreme Court in each of those cases , were going to look at those individually, were just not going to say blanket things . These regulatory taking cases are very similar to the concept now a days that are zoning linkage and many communities , Salem is thinking of adopting, Boston has adopted it. There are 2 or 3 zoning linkage proposal, they ahve not really be challenged in Court, yet the concept being that most of the developers say hey, we have to deal with the City if they want something we ' ll give it to them. Some point in time those ordinances are also going to be challenged, that along that same general line of irregulatory taking. That basically MINUTES EXECUTIVE SESSION 1/27/88 CONTINUED PAGE THREE outlines the posture I wanted to bring to your attention here. I anticipate that Mr. Stasinos ' s attorney go into detail discovery, I don ' t know if a trial is going to take place but once you start a discovery process things could come out in that discovery process that could be very detrimental to the City and subsequent trials in my judgement. I may want to stop it at some particular point and I would like that authority from you, and now if you have any questions? Mr. Hacker : I have a lot of questions , based on this agreement that we made, if this was a Court decree, do you think he can overturn a Court decree of giving the land to the City? Mr . 0 Brien: keep in mind that addressing one of the two outstanding cases , the question of the land do I think that he could overturn a Court decree. I think it is very slight, but however there ' s always a probability of anything particularly with these cases . These recent cases just cited although it doesn ' t deal with a court decree, they dealt with a Junitory Authority, like a county of which conceivable is somewhat similar. My answer is no, I don' t think at the present time it would be successful. In that vein however, on the other hand he does have against the City of money damages for revocation of his permits caused some delays and lost a considerable amount of money although thats separate. Mr. Fleming: Is there any entry of judgement in the 2nd or 3rd. case's? Mr . O ' Brien, No there both open. Mr. Fleming: So those are still up there. Mr . O ' Brien: Yes thats right Jim there both a decree of judgement. Matter of fact, on the 2nd. what there doing is they brought a contempt against the City on the judgement and that opened it up again, but the point I 'm trying to make is I don' t want to be locked into either or situation, I want some flexibility, I feel if on the one hand on the land question if worst comes to worst they got the land back I would want concessions on this part of potential liability of the City. Now as to damages , on the other case even though these cases are separate, while they have separate documentry, we have to think of inter-related for purposes of settlement. Mr. Hacker: On the other case still outstanding were claiming according to my calculations $8 , 000 dollars a day for six weeks is $300 , 000 plus . Your saying you think he might tax something else for not being able to sell the remaining units because condo units are slow. Mr. O ' Brien: That wouldn ' t surprise me. Mr. Hacker: Did the City act inapropriatly? Mr . O ' Brien: I 'm not prepared, at this point, to make that judgement as I haven ' t done all the discovery myself, however, if that comes out through the discovery process perhaps the City was a little overly zealous . I ' d like some authority to settle with these people, whatever is appropriate because the problem being is if that came out during the discovery process they would be less apt at that point to settle. Where now there saying, well we would settle for the land period. If things came out, unexpected things during the discovery process they could say that was before these other things came to light. Mr. Hacker: What is the discovery process exactly? Mr . O ' Brien: Discovery would be depositions , interrogating different City officials , they may even want to get into depositions in court. Unlike your typical situation here when you grant a variance, on Stasinos business , the Board stayed in it for a long period of time. I anticipate they want all records and propose everyone involved, perhaps councillor, all City Councillors . Mr. Luzinski : That original soccer field, didn' t he originate that in the first place? MINUTES EXECUTIVE SESSION 1/27/88 CONTINUED PAGE FOUR Mr. O 'Brien; That I dont know I came into this after these discusions . Mr. Luzinski : I think he did and thats what throws me off , and we accepted it as part of the whole plan, but we didn ' t go after that, am I right? ( answer : yes ) so actually if we had to give something up that would be the least thing we would worry about . Mr. Strout: What would happen to the land? Mr . O'Brien: If he got the land back I think its zoned---Mr. Hacker: a shopping center . Mr. Luzinski : Its right on the street, I think right up front, if I 'm not mistaken. Mr. Hacker: Its B-2 . Is all the condos built? Mr. Santry: No. Mr. Hacker: How many 5 to go, 50? Mr . Santry: I could count them out, hes about 2/3 to 3/4 of the way. Mr. Hacker: What, is he stopped now. Mr. Santry: No, hes slowed down, he still framing with just one framing crew. Mr . Fleming: I have one question, I just called you yesterday, because in our packet we got a letter you wanted to talked in executive session and I just thought my first vote was a good vote. So after calling you I then went to our library and reread the narative discriptions of both cases , and theres a couple of areas that put me ill at ease. The first is , even if this were consided a temporary taking, I guess, in my opinion and Evangelical suggest very strongly that even a temporary taking is covered by this decision and this decision is known.Could even if we returned the land tomorrow, could he still have a cause of action relative to the period of time we have taken it. Mr. O'Brien: No question, theofetically however, if we return the land tomorrow that would be a policy decision and a negotiated settlement. Mr. Fleming: What I 'm getting to then, I dont want to be in the position further on down the line that we find ourselves now relative to any other ceanditions . What ever settlement might be arrived at could it be framed in a judgement finally, that I think could answer what Mr. Hacker was saying. Then he ' d have to do it through the Appeals Court, Appeal errors of law and not any of the factual situation. In other words , I dont want to see a steam roller effect through all the conditions because I happened to be the author of those 30 odd conditions . Mr . O' Brien: No it could be framed in a form of judgement not only that I would insist upon releases from Stasinos individually against the City, Board members . Mr . Fleming: Which brings me to the point I wanted to make along down the line, but I ' ll make it right now. In addition to that judgement I read the hard language in both these 2 cases as to imply some personal liability and if you were to prove damages in terms of either loss economic opportunity or of the taking, I read into them that not only do courts look or could look, the court says that it can require any action and it could in fact we might be liable. Personally on any issue like this and I know were covered by some sort of policy unless we act arbitrally or capriciously and this could be interpreted to be that very instance. My question being could we be personally liable for any damages that might be assessed to us if were joined individually in a suit. Mr . O 'Brien: From what I understand of the situation now I would say emphatically no, however I just want to be prepared if a situation should develop from exposure, I could shut of that exposure. Mr. Fleming: I know the discussions have be preliminary is Mr. Sheehan still representing him now? Mr . O' Brien: Yes . Mr . Fleming: I know to this point in time personal liability haven' t been hinted at but even if it isn ' t to protect us on any negotiating wether it involves money, land or whatever, I would hope would include releases and I think your authority would be given you based on MINUTES EXECUTIVE SESSION 1/27/88 CONTINUED PAGE FIVE personal releases as well as from the City itself . Mr . Hacker: Can I ask you a question about the releases? Mr. Stasinos made an agreement, and went back on it, what guarantee do we have he wont go back on another one. Mr . Fleming: Thats what I asked him to the effect of steam rolling on the rest of the conditions , and he indicates that there can be an agreement for judgement entered and a judgement based on that agreement. Mr. Hacker: Suppose that--Mr. Fleming: That isn' t the situation in the present case, the second case and certainly notthe third case, just on file. Mr. Hacker: Supposing we were to agree to give him the $300 , 000 , supposing we would agree to give him the lot and he agrees to it, what could stop him from coming back next week and saying, I ' d like another $200 , 00 from each Board Member. Mr . Fleming: I 'm not going to preterd to answer for the City, but I 'm saying that the agreement for judgement would contain that there be no further actions in terms of Mr . Stasinos or owners in the future of that property relative to conditions or otherwise. Mr . Hacker: What if he violates that condition says I 'm doing it anyway. Mr. Fleming: What if he violates what? Mr. Hacker: The conditions , he could be sued. Mr . Fleming: I ' ll answer again for Mr. O 'Brien, he could be brought in to Court for contempt, it would be a violation of the decree. Mr. O 'Brien: I would make sure any judgement be made in such a way that he could not re-open it. I think the aspect of personal releases individual, releases for Board, City .Officials , Departments , Elected Officials , that would be all part of the package I indicated to his attorney. If , I even considered any type of settlement most definately be part of it. Mr. Hacker: If its part of the settlement whats to stop him from coming back and get us again. Mr . O' Brien: I think the individual releases , we will be releasing . Mr . Hacker: Would he be in contemn if he came back. Mr . O ' Brien: He couldn' t do it, it would just be a waste of time . Mr. Hacker: Am I wrong in assuming its not a waste of time to come back on the agreement he made. Mr . O ' Brien: At this point . Mr. Hacker : I don ' t understand I sell can goods , if a guy makes an agreement and he doesn' t keep it and comes back and he sues us . Mr. Fleming: What he is saying here, he made it under duress , thats why the taking, were going to make certain conditions if you want this variance . Mi. Strout: It was his proposal . Mr. Fleming: It was absolutely his proposal his saying that he could not come forward and have any relief from this Board, I was served the complaint but haven' t read it, but I would guess that he ' s saying that, that proposal was only offered to the Board because of the duress created. We weren ' t going to grant the variances , we at one point took a posture, I think, build your shopping center, we don ' t care, go away. I think it was a vote of this Board a final vote of this Board, and then he came back again and went through the Planning Board on change, substantial change and came back before us . I remember arguing with them. He had to go back to the Planning Board before he came here, I don ' t know who represented him then. What I 'm saying is here, is that what your saying to us he ' s alleging, is if came forward Mr. Luzinski had the question, thats pretty safe, he ' s saying, or attempt to prove that those offerings were made under the duress of not being able to develop his property, duress caused by the Board of the City of Salem. Mr. O ' Brien: its a relatively thin argument, I 'm not saying he ' s on firm legal ground, all I 'm looking for is somewhere along the track here, we stop and slip through the cracks , but for crying out loud he gave us the land that was part of the agreement whats wrong with it. He says well, your right but felt that subsequent to that some of the treatment he got was in violation MINUTES EXECUTIVE SESSION 1/27/88 CONTINUED PAGE SIX of the agreement. So he figures , ( ? ) the agreement, thats his position. Mr. Fleming: I want to get to another part of the decision if I may, Renquist in the Church case kind of set out the fact that government once attacked for its actions has a variety of optionsand that would go Withdrawal or invalidity of a regulation as in this case a condition or the exercise of eminent domain. And he goes further and he says that any taking, no subsequent actions can relieve it of its duty to provide compensation. So even if we do something here, that subsequent action can seem to be able to cut off, damages , compensation. And I read it personal damages . Mr. O'Brien: If we do something, because in his complaint, not only is he requesting conveyance of the land, also the denial of the use of the land, s he ' s not attacking us to just giving him back the land, and I want damages also. Being deprived of it temporarily so any agreement obviously, I would not enter into it unless everything was closed up. Mr . Fleming: In all of these cases are in a sense U. S . Constitutional cases , because there based on the constituional clause of the 5th amendment . I 'm not really a constituional lawyer, if government or officers of government do something to violate ones constitutional rights , doesn' t it necessarily then follow that not only government but the individual have some responsibility in that area. For example a police officer acting beyond the scope of his employment and hiting me over the head, not only is the City liable but so is the individual officer . In the Nolan case on page 3142 the language in the second paragraph, relative to "proceed psyschological barrier" , could not Mr. Stasinos raise that type of issue in terms of why he gave it or why even if he kept it, he felt lie couldn' t utilize it. Mr. O'Brien: They would have to make up their case. Mr. Hacker: Is he currently building? Mr. Santry: Yes . Mr. Hacker: He ' s done everything he ' s suppose to do, met all the requirements? Mr. Kavanaugh: No. Mr . Fleming: Further on that very same page, although the establishment of a soccer field in an appropriate goal for the City of Salem, the language cannot compel a developer alone to contribute to the realization of that goal . Are you saying that type of language is applicable to this case? Mr . O ' Brien: It could be. Mr . Fleming: I don ' t have anymore questions at this time, I think Mr . O ' Leary wants to say something. I 'm sorry I do have a question, probably its good because the Planner is here. In the worst case thats been presented to us and is asking authority for, the damages and the land to Stasinos , I guess damages extent of damages that might be authorized as to an upset type of limit would have to come from the administration we don' t have any control over. We don ' t have any funds to authorize, but I 'm more concern with in terms of the soccer playing fields . Are there alternatives to those two fields that could be obtained to the City? Mr . Kavanaugh: No. Councillor O'Leary: Who is in charge of the development? I think this Board has given up one of their rights to the City Planner and we do have a Clerk of the Works , that goes to you Gerry. Mr . Hacker : I asked you a question and you said you didn ' t know, does the Clerk of the works report to you, or give you a data sheet? This Board already gave up their authority because you people as one of the conditions were going to oversee it and they did give it to the Planner. Now the City Solicitor wants you people to have to O K to give their property back, who owns the land? I just want to bring out just what hit me tonight. Mr . Kavanaugh: The City does . Mr. O 'Leary: How do we, you were a Ward Councillor, you were elected, MINUTES EXECUTIVE SESSION 1/17/88 CONTINUED PAGE SEVEN How do we get rid of City owned land, through the Board of Appeal or through the City Council . Mr . O ' Brien: He owns the land because of a Court Judgement, the City owns the land and hes seeking to overturn that judgement. Mr . O ' Leary: To get back to my original question, the City of Salem is on the deed right now, to get rid of City owned land, I 'm not a lawyer . Mr. Fleming: A Court could do it. Mr. O ' Leary: As the Board has said this is one of his conditions he wants , you not only have it in your records , the City Council has it in their records . we have the minutes on this , its explicit by him, that were giving you that land, wants you to have it. Not one councillor asked for that or maybe it was worked out with the City, nobody was going after that, he wanted to sell that project of the soccer field. Mr. Fleming: I can see by todays reading that you can make an argument, that obvious gift was induced psycologically or otherwise by, I 'm not going to get off the dime here unless I move and do something and I think the Courts are saying here that you cant condition regulatory action. The action of this Board being regulatory action in terms of forced deal , and in just a matter of proof councillor in my eyes and maybe again, he certainly can allege, even if theres obvious evidence it was a consentual type of thing that he gave the land away. That contempt was obtained by arbitrary leverage of the denial of the first instance were voted not to grant him variances for housing, and our message was go build a shoping center . Mr. O 'Leary: And he had offered the soccer field. Mr. Hacker: What your sayinghe has actually three court cases , 1. that the Planning Board lost on a technicality, its gone but they have accumalative effect. 2 . that we get into an agreement that he could build the units that he wanted plus the soccer field. 3 . that the Building Department yanked his permits and what your saying is , it looks bad because of what the City did, because of the case we lost of the Planning Board technicality. What we did might be alright but were aappeasing him for the potential problem of taking his permits . Mr. O 'Brien: I just want authority depending on how things unfold. It might unfold in such a way I might, If, I thought in my best judgement if I had this authority from the Board. Mr . Hacker: Gerry, your probably more experienced than anyone, as the Planner other than the solicitor have you ever had something like this . Mr. Kavanaugh: No experience, I ' ve gone through nothing like this before. Mr. Hacker: If the court decides that our decision is not good, if we acted improperly, on the soccer field and building the units does just that portion become null and void? Mr. O' Brien: If the Court decides it, the Court would decide on the totality of the allegations , #1 his claim to get the land back that he feels was forced to give through duress . #2 they ' l deal with the question of damages that he may have had. Mr. Hacker: Is there any recourse, if in fact he were to take the land back. Would the Board vote to allow a shoping center in front, we may have allowed only 10 residential units in back, will he give any consideration to that . Mr. O 'Brien: I don ' t think so, what I think they will be doing is looking up that judgement of the current 40 odd units and soccer field. But you know its a very very longinvolved case we have been spending forty minutes on. Mr. Fleming: May I ask this , the existance of two soccer fields in front of the development on Highland Ave. could he allege in his damage suit the economic loses at the presence of"x"number of soccer players and children, diminishes the value of his adjoining property. Mr. O' Brien: its possible and that would be along the lines of only half of quote "taking" of his f MINUTES EXECUTIVE SESSION 1/27/88 CONTINUED PAGE EIGHT diminishing of this value. Mr. Fleming: What is the extent of the coverage, either on councillors, Board Members , or City Officials . Mr . O 'Brien: A million Dollars apiece . Mr . Fleming: Any deductible? Mr . O' Leary: I just want to point out one thing, Its my understanding he was going to build these soccer fields . Mr . Hacker: Do we have that in writing? Mr. Kavanaugh: We do, subsequent to all the actions by the Board and everything else, we were at a meeting on one of the 2nd. suits , we asked them when they were going to be done? They said by November. He said I ' ll put in writing and they said we shouldn ' t do that, and he said do it anyway, and he did. Terrific! Mr . Fleming: Can you just define again what your asking, I think I know what your asking, everyone here does . I think theres a concensus that we don ' t want to pay any money, and we don ' t want to loose the fields . What your asking is , allow you to use your best judgement in those areas relative to what is the least impact on that development and on the City relative to the settlement. Mr . O' Brien: Including negotiating those soccer fields because my conversation with his attorney he indicated that at this particular stage, he would be satisfied with the land back. Now that could change as time goes on, I dont know. Mr . Fleming: All I 'm saying is there might be a lessor value that they might take too. Mr. O' Brien: That could be. Mr. Fleming: In any event your best business and legal judgement . Mr. Hacker: If we go back three years , I dont think I would have voted for that many apartments with a commercial development. What were being asked here and not inappropriately is that, kind of bail out the other end, isnt that how I 'm reading it, $300 , 000 dollars for 6 weeks . Mr. O' Brien: Again it depends on how its goin to go, we should know very shortly. Mr. Hacker: When, suppose I would say something injurious to our case, would you say stop/ and wait till they settle, now. Mr. O' Brien: He stressed to me that at this particular point in time there willing to talk, and I 'm never willing not to talk unless we wind up in Court. Mr. Hacker: If we were to allow you to make the agreement, if you made another agreement, a summary or Court decree, what would stop them from coming back. Mr . O ' Brien: I would require that he release everyone, the City, The Mayor, the Board in official capacity, individual capacity, Building Inspectors , Asst. Building Inspectors . Mr. Hacker: Thats where we missed the boat and we have that for the last one. Mr . O'Brien: Yes , but its usual to get that, I think what happened in this particular case its pertinent that the Angelical Church Case came out and got him thinking and got his lawyer on it. Mr. Fleming: Isn' t there another case of emotional damage to a developer relative to a local board? Mr . O' Brien: A Federal case? Mr. Fleming: Yes . Mr. O 'Brien: I 'm not aware of it. Mr. Fleming: He can argue, physical duress, City Planner, what about the Board, Ward Councillor. Mr. O'Brien: The Board of Appeals , all members , City Planner, Building Inspectors . Mr. Bencal: Who in the City isn' t? Mr. O ' Brien: Thats the 2nd. case. Mr. Strout: How can he say he gave us that land under duress . Mr. Fleming: Based on the first vote. Mr . Strout: He said, I 'm not going to do business in here strickly residential, thats why we cant put anything residential out on Highland Ave. , because its not going to be saleable . What do we do with the land, we ' ll give it to the City to make soccer fields, just to show good faith, I 'm not going to build condos and in front put a small shoping center. Mr. Fleming: The n we ' ll approach this Board and ask for residential development rather than commercial MINUTES EXECUTIVE SESSION 1/27/88 CONTINUED PAGE NINE development and we denied him. The message, we don ' t care what you do go build a shoping center . Mr. Strout: The first proposal had the soccer field. Mr. O ' Brien: Planning Board, Building Inspectors and the City. Mr. Strout: Right from the start, and then in good faith instead of building one floor, we gave them a second floor . Mr. Fleming: One floor only, I wrote the condition. Mr. Strout: Was it 120 units? Mr . Bencal: Its in my opinion that we should hold our ground right here, because I believe when Mr. Hacker said that this could continue to snow ball and he has proved that he is at least in my estimation, not a man of his word. To clearly point it out, that if the soccer fields are not completed by November First, its doubtful that anywork was started on that, it appears he had no intention of doing it. Mr. Hacker: What would happen if we turned the tables and went after him? Mr. O'Brien: That whole question is kind of muted by this most recent suit, it would be useless to pursue that if he hadn ' t filed this most recent suit. Our course of action would be to bring a contempt against him for not fulfilling his part of the judgement, he ' s going to set up the defense of getting it back. Mr . Hacker: But the thing is he made the agreement and I think that if he tries to come back after us to make the agreement void. I think, do the same thing get the condo out, don ' t finish the rest of them. Mr. O' Brien: The way things stand I want to hold my ground too. Mr. Fleming: What your asking us is to trust you to frame the best judgement, legal, business or otherwise. Mr. O ' Brien: But, at some point I might find the ground getting a little squeaky or something I may want to do something and have to do it relatively quick. Mr. Bencal: What is a covenant, would you please. Mr . O ' Brien: A covenant is an agreement usually refered to a parcel of land. Mr. Bencal: And is that absolute? Mr. O ' Brien: Nothing is absolute, as absolute as it can be, but--Mr . Bencal: Because again the term covenant is that in Condition M is that he not construct on any portion other than 140 condo units and the 3000 sq. ft. building. Mr. Fleming: Say he had the land back, its not a part of that development, he would have permanent use, he would not have to come back here. Mr. O' Brien: Whatever its zonned for. Mr. Hacker: I think its B-2 that 4 acres . Mr. Bencal : Mike, there are other things in here he could come back, such as item T. If required by State Dept. of Public Works , shall contribute the demanded funds for drainage improvement proposition of which Rich ' s Dept . Store, Highland Ave. , Salem. That was . one of the things Mr. Fleming brought out that possibly the Court could rule invalid. Mr. Hacker: Have we asked him for that, Gerry? Mr. Kavanaugh: Not yet. Mr. Hacker: Whats to stop him in 60 days? Mr. Fleming: Whatever the outcome, what Lf he settles for a dollar, part of it would be thats it. Mr. O 'Brien: Thats it as far as going against the City, that doesn ' t go for the rest of the agreement. Mr. Fleming: We have the remedy of the contemptcitation. Mr . Hacker: Unless the contempt can be construed by the Court as a getting even, and I think that puts him in a better position. The City Solicitor has asked us to do something, do we do it. Mr. Bencal: In regards to possible reconveyance of the land use of a soccer field back to Mr . Stasinos , I would be opposed to that. Mr . Fleming: I think that authority has to include it, what he ' s saying to us , at least what I 'm hearing is that he has to have a broad package in which to negotiate from. And if there is an agreement that can be reached he has to have ability to convey land as well as settle for money damages . I dont MINUTES EXECUTIVE SESSION 1/27/88 CONTINUED PAGE TEN think theres any instance where this Board has not trusted Mr . O ' Brien, and I don' t think we ever limited in any instances thatI ' ve been here of what he could or could not do. We want him to be our advocate. No we don ' t want to lose that land, but he ' s saying to us , I have to have that to have the ammunition is necessary so that if it goes to that point, and I can present some other consequences to insure the consenting of the existing deal, I ' ve got to have that right. I don ' t see why, I know everyone here doesn ' t want to give the land away, but I don' t see why we cant trust Mr. O ' Brien in terms of that authority. To give him that authority. Mr . O' Leary: I have all the faith in Mr . O' Brien and do trust him, and I still would not give him the land. Mr . Bencal : And your the Councillor that has his head on the choping block, with all the neighbors as are we. Do you think, Mr. O ' Leary: Do you think if he had to give up that land he would make a mockery of this whole system. Mr . Bencal: If it came down to the final bargaining chip. Mr. Fleming: Lets say if this whole thing went to Court and theres a 5 Million dollar judgement are we willing as a city to pay 5 million dollars for 2 soccer fields . You might call it a mockery, but are we willing to go out on the bond Market . Because I dont think the Capital reserve has 5 million bucks . And if you dont think that happens , call Saugus tomorrow, they have at least 3 million and dont know how to pay for it . With the constraints of 21-2 the only way is to table that debt. Lets not give him any authority and roll the dice . I ' ll vote for not trusting the guy I really will right now. I 'm- not giving the land back, lets face and bight the bullet and take what ever that verdict is . That 5 million dollars and lets stand up and say its our faulttoo. I ' ll go along that way, but if I 'm covered for a million, theres 5 of us thats 5 million and he gets paid. Lets do it that way, and .then let put a placque up there and call it, Bencal Luzinski , Strout, Hacker, Donahue Soccer Field. I thought my first vote was right. Mr. Hacker: The fact of the matter is we made a vote, wether you personally think we did the right thing or not. This is what the Board decided collectively. The City Solicitor told us that we are on firm ground. Mr . O' Brien: That could change . Mr. Fleming: What were saying, no authorization go ahead and try the case, fine if thats what we want to do, its ridiculous . Mr . Bencal: So we ' ll have to give the Solicitor the authorization. Mr. Hacker: To make the decision. Mr . Fleming: As best a decision he can make. Mr. Bencal: In the interest of the City. Mr . Fleming: I do this every day, I have a 10 million dollar authorization, does that say that I can give 10 million today, 10 million tomorrow, 10 million the day after, I can but I wont be there very long . Mr. Bencal: I dont think Mr. O' Brien will make a decision thats not going to be in the best interest of the City, the Board and every- one else thats concerned. Mr. Hacker: And if we give the land back, how can we be sure he ' s not going to sue . Mr. Bencal: We really cant but were in a situation now the City could really be in trouble. Mr. Luzinski : How bad does he want to look theres probably goin to be a lot of public opinion. Mr . Bencal : Say potential buyers know the project has been through litigation, it could hurt his marketing, his credibility could be destroyed. Mr. Hacker: That could be a consideration. Mr. Luzinski : Your looking for a vote of confidence from us . Mr . O'Brien: Also a vote of authority. If I feel its necessary. Mr. Hacker: Do you think if they felt you had the ultimate decision or didn ' t have the ultimate decision, and you had to come back to us it would be a bargaining MINUTES EXECUTIVE SESSION 1/27/88 CONTINUED PAGE ELEVEN chip for the City, you got to come back and talk to 5 guys into a compromise rather than letting them, talking you into it. Mr . O ' Brien: That would be ideal, however, as I said earlier we might be in a discovery process where I can ' t terminate and come back to the Board for authority and they may find themselves with such a hold. that they might want to continue the discovery process . Mr . Fleming: Theres 2 words that were looking for, was any of our action arbitrary or capricious , was any of the City officials arbitrary or capricious . If through discovery, through deposition anyone gives an answer interpreted to be arbitrary, not based in reason, a violation of due process , then he ' s on his way and why should he talk to him, because he ' s got money sewed up it might not be 5 million, but verdicts are very tough today. Mr. Hacker: No reflection on you, Michael, I think we have an obli- gation to the people who sat here through the 250 meetings and those who put some trust in us to do the right thing. Its not that I don' t have faith and trust in you its just that I think its a firm decision and I think we have to go after the guy. We should have done it before this , will someone make a motion. Mr. Bencal: Is a motion necessary? Mr. Hacker: I think a motion is necessary for Mr . O ' Briens authority into a settlement. Mr. Fleming: I make the motion to allow the City Solicitor to enter into negotiations with Michael Stasinos or whatever entity controls that property relative to the settlement as what has been described at this meeting as suit #2 and suit #3 . Said authority would include the payment of money damages and the conveyance if necessary of the 4 acres that are now the property of the City of Salem, said authority is granted condition upon knowledge that the majority of of the Board is opposed to such transfer of said land. But that its a necessary tool of negotiation in the opinion of the Solicitor at this time and can be so utilized. Mr . Hacker: Before we vote on this you don' t think it would be beneficial to enter in negotiations with them, but prior to land being conveyed by us . Mr . O' Brien: I ' ve already talked with them and I know what there looking for. I 'm not prepared to give it to them. I 'm not so much concerned about negotiations , I think what Mr. Fleming talks about negotiations I can do that at any time. I more concerned about being involved in deposition or discovery of being exposed. The exposure could be intense . All that I ' ve done so far is get depositions and there going to be scheduling these depositions . I 'm sure right away and I just asked them to hold off till I talked to the Board because its like anything else insurance co. , lawyers they go to court, they have to have authority from insurance co. at some point in time to make a judgement . In the best interest of the company. Same thing when your talking in terms of discovery and depositions , your in Court just about things could come out that could be extremely damaging to you later . Thats more what I 'm looking for, I dont want to go and talk to him at this particular point in time, I ' ve already talked and found out what their looking for . They are going ahead with extensive discovery and -hats what I 'm looking for authority that during that discovery process , I 'm going to have to deal with this on a daily basis . I 'm saying if something comes up that I feel thats exposing the City to liability I want to be able to close it. Mr . Hacker: If during this discovery that were exposed and gave them back the land could he come for another suit. I could of built the shoping center in front for half million dollars less and now I want the money. Mr. O 'Brien: What I told you before if I do settle with these people I will be sure that any settlement in the form of a judgement and personal releases for everyone. That will do it. and MINUTES EXECUTIVE SESSION 1/27/88 CONTINUED PAGE TWELVE that way you ' ll still have the judgement and if he violated anything you could pursue through contempt process . Mr . Hacker: What are we lacking to go to him for contempt process . Mr. O ' Brien: nothing if he ' s in violation of the judgement we could pursue it. Mr. Hacker: One of the conditions is that he give the land. Mr. O 'Brien That question is muted now because he raised that on another issue on another suit. Mr. Hacker: We could be faced with 35 suits , each condition. Mr. Bencal: Theoretically, right now he could open up a suit on condition X. Could you condition it so that he never comes back to us , on anything that relates to that land. Mr. O ' Brien: I am as tired as he is . Mr. Fleming: The majority of us feels this land should not be conveyed, just an intent as part of the , you need 4 votes for a variance, 3 votes . Mr. Luzinski seconded. Voice vote: Bencal, in Favor; Luzinski , in Favor; Strout, in favor; Fleming, in Favor; Hacker, Opposed. Mr. Bencal : Mr. Chairman, I move that we adjourn from Executive Session and go back to regular meeting. Mr. Luzinski seconded. Mr. Hacker: Meeting adjouned, regular meeting now in session. A motion to adjourn, Mr. Bencal so moved seconded by Mr. Luzinski . Unanimously voted to adjourn. ubmi�y: Lorraine Devoe, Clerk (1it of alem ttg5ttt usP##S � 9 4 Dttr3 of Ap peal MINUTES OF THE BOARD OF APPEAL MEETING - AUGUST 13, 1986 A Special Meeting of the Salem Board of Appeal was held August 13, 1986 at 7:30 p.m. , second floor, One Salem Green. The following members were present for this Special Meeting: Messrs. , Bencal, Fleming, Hacker, Strout and Associate Member LaBrecque. Meeting was called to order at 7:30 p.m. by the Chairman, James Hacker 394 Highland Avenue - Mike Stasinos Mr. Strout rude a motion for the Board to go into executive session to discuss the pending litigation and its consequences.. Mr. Bencal seconded. By a vote of four to one, Mr. Fleming voting in opposition, the Board went into executive session. Mr. Hacker addressed the assemblage: I know you folks are here tonight because of youRinterest in this project. The problem that faces us now is that we are going to recess to discuss the litigation with the City Solicitor and the Building Inspector. Hopefully that won't take too long to discuss the negotiations that have gone on between the City Solicitor and Mr. Stasinos. We will, I hope be back shortly. We will then be able to answer any questions that you have. The problem we have is, he has sued us and he still has the right to put a shopping center, if we discuss this . `. publicly, what we are doing is laying our cards on the table and giving him a plan of attack that he normally wouldn't have. We have put thirty three conditions on the developer and he has till August 22 to agree. Councillor O'Leary: Mr. Chairman, I think this is a white wash, tomorrow morning I'm going to ask the Mayor to ask for the immediate resignation of the Board of Appeals because you are doing a disservice to my neighbors, my constituents, that I'm elected to represent. Lady from the. audience: Mr. O'Leary, you are not speaking for me. Mr. Fleming: I would like, at this time, in order to rectify the concerns of the woman who was talking and the a Councillor of Ward IV, to move that the Councillor be .allowed to attend the Executive Session. Mr. Bencal: before there is a second, I would like an opinion from the City Solicitor. Mr. O'Brien: can' t see any problem with it, he is a City Official. Mr. Hacker: there has been a motion, would you like to amend the motion to include the other Ward Councillor, Mr. Furfaro, who is here and interested. Mr. Fleming: I do amend. I am sorry Mr. Furfaro, I didn't mean to overlook you. Mr. Bencal seconded the motion. Motion unanimously carried. Mr. Hacker: we will temporarily recess 7:35 The public hearing was reconvened at 8: 15 p.m. Mr. Hacker: if you will remember, we had thirty three conditions, the City Solicitor sat with the developer and made some modifications. We can't discuss the specifics. I think we have tightened up, for the most part, what we gave him. What's happened, the developer came to us with an offer, he deleted some items that we were insisting on. We put them back in. We have instructed the City Solicitor to go back with a firm and final offer and to have this settled by August 22, 1986. Because we were in executive session, it is illegal for us to discuss the specifics of what we have done but if you have any questions. Ann Peirney, Swampscott, I own property on Highland Ave. , and I am a recipient of damage. I would like to know if what you discussed under executive session is so profound you can' t discuss it with the public, isn!t this a violation of the open meeting law? Mr. Hacker: lets let the City Solictor MINUTES '- AUGUST 13, 1986 ' page two 394 Highland Ave. - Public Hearing - Continued answer that question. Mr. O'Brien: what the Board has done tonight is, they have not conducted a public hearing, they have conducted a closed hearing. Which is permissable and which is an exception to the open meeting law. Any municipal ,body can go into .executive session to discuss litigation and litigation strategy. Ms. t Pierney: under a called public hearing like this one? Mr. O'Brien: it always has to start as a public hearing and then they convene into private session. They cannot call just an executive session. Paulina Alexander, 12 Clark St. , again I would ' like to find out where I can go to see that I don' t get stuck in back of gravel trucks. I'm not home when the blasting is done, I come home and find cracked windows. I have to travel behind these trucks, I believe they have to be covered, I have never seen 1 one of those trucks covered. I don' t seem to get any answer from anyone, where can I Fget some kind of satisfaction. Mr. Bencal: the Registry of Motor Vehicles would love to see them. Maryanne Ferragamo, 419 Highland Ave. , we won't know anything until the next meeting? Mr. Hacker: basically it's the same as the results of the last public hearing with some concessions and some fine tuning on everybodys part. We still _ don' t know that the developer will agree to it. I think we have reached a point that we are very very strict. Ms. Ferragamo: what about blasting? Mr. Hacker: I can't answer that, the problem was addressed. Jim Nestor, 10 Barnes Ave. , how many units were agreed on? Mr. Hacker: it would be inappropriate to discuss the specifics. The original conditions are .still there. The developer has not agreed to them as yet. There was a general discussion among the assemblage regarding the working hours. No names or addresses were given. Mr. Hacker advised them to give formal complaint to the building department. Mrs. Dipetro, 6 Madeleine Ave. , where is the Mayor now? They are around shaking your hands when they need your vote, where are they now? Richard Williams, 3 Thomas Circle, I read in the paper this evening that Mr.�tasinos - or the City Solicitor did make something public and that was they don't want the Appeals Board to handle the oversite on this project, they want the Planning Board. I am just wondering if you people are ready togiveup that condition or are you going to remain adamant. Mr. Hacker: again that is a portion of the agreement and we can't answer. The problem that we have here is twofold, you may be looking at it that we are doing things behind closed doors, clearly that is not the case, if that was the case we wouldn't have the opportunity. The Councillor had the opportunity to come in and ' listen, he chose to leave part way through it, certainly his right. What we don't want to do here, if Mr. Stasinos does not accept the conditions and he continues to build, there's no sense in our laying our cards on the table with our strategy and running a larger chance of losing the lawsuit he has against us. It's kind of in limbo for the next two weeks. Councillor O'Leary: the reason I left is because at that meeting you did something behind closed doors, after all the meetings and all the continuances of this case, and as I said I will write the Mayor tomorrow and ask for the immediate resignation of the Board of Appeal for doing this because I think you did a disservice to these neighbors. Mr. Fleming: I voted not to go into executive session. Mr. O'Leary: okay, then I' ll leave your name out. You did a disservice to these people. The people are concerned. They came to meeting after meeting after, meeting and you did not let them in on the final agreement. You let them in on the last one where it ,4 was your choice and you could have gone into executive session, you didn' t, you did here and I think you were wrong. Mr. Hacker: the Board didn' t go because they wanted to hear from the neighborhood, on the otherhand, I think it was appropriate action u tonight. Vince Amanti, 392 Highland Ave. , I think that after the action was taken at the last meeting the Board of Appeal did the right thing tonight because, at the last meeting everybody was polled, they all agreed that they would leave the bargaining ( with the City Solicitor and at that point I think hey more or less said okay, we're washing our hands of it and leaving the decision in the hands of the City Solicitor ,p and I think thats where we ended up and I think it was a good decision on everybodys 1' i MINUTES - AUGUST 13, 1986 page three 394 Highland Ave. - Continued part. I will be happy to go along with what they did, based on the thirty three conditions that we gave him. We gave him thirty three specific conditions. Mr. Hacker: I think the important thing to remember is what we have done here this evening, the agreement we have hopefully have hammered out is something that should be judged when it becomes fact, not on speculation. We just have to wait and find out if we've done the right thing to protect you, I think you'll be happy with what we've done. August 22nd is the deadline for the developer to accept our proposal. Meeting adjourned at 9:20 p.m. , next scheduled hearing to be held August 20, 1986 at 7:00 p.m. , second floor, One Salem Green. Respectfully submitted, Brenda M. Sumrall Clerk a f MINUTES - AUGUST 27, 1986- page 986page ten OLD/NEW BUSINESS - Continued to pull the file and find when the last letter went out? I agree, if we attach conditions and they are not followed, we have an obligation to point it out, but once they are pointed out I think our obligation ends. The City pays for Zoning Enforcement, the obligation of enforcing is up to him. Mr. Bencal: can't request he look into the matter? Mr. Hacker: sure, but its already being done. Mr. Bencal: as a body itself, is that within our rights or within our charge by the City and State. Mr. Fleming: we have a duty to put on conditions, we have a duty to see they are enforced. Mr. Bencal: is it possible to make a motion to have the building inspector look into it. Mr. Hacker: he's already doing that, he's already taken action. He's already conferred with the City Solicitor about the fence issue, to make a motion now to have him take action would be redundant. Mr. Fleming: there are obviously conditions that are not being met. I want the guy to know that we won't put up with it. Mr. Munroe read the letter from the Building Dept. which was sent August 12, 1986. Mr. Bencal: what then is your next step. Mr. Munroe: They may have contacted Mr. Paquin, I really can't speak for,that. Mr. Bencal: if they have not, I think a reasonable time, 14 days has passed. Mr. Munroe: the next step then would be to go to court. Mr. Fleming: that satisfies me. I withdraw my motion. Mr. Hacker: again, under old business, I don' t know if you received a copy of a letter from City Solicitor to the Board of Appeal with a copy of a motion for hearing and Consent Judgement. On two of the conditions, the developer is here this evening he is submitting an Invironmental Impact Report and his Definitive Plans to the Board. Plans were displayed to the Board and the Assemblage. Mr. Stasinos explained the Plans. All of this complies with the City Planner. Mr. Fleming: what is the date of these plans. Mr. Stasinos: 8/26/86. This is for 140 units. Everything the Board agreed to. Mr. Fleming: I think at this time we should take it under advisement. Is this what is called a Definitive Plan? Mr. Stasinos: this is a landscape plan, shows the location of the. buildings, sidewalks, drains. Thats everlything. Mr. Munroe: this is not a definitive plan. Mr. Hacker: if the Planner has favorable comments, I assume we will confer with him. Mr. Fleming: should take this up at the next meeting. Mr. Bencal: - when will item J, the neighborhood review process come about. After Mr. Kavanaugh's approval? Mr. Stasinos: we can do that before. . Mr. Bencal: it appears that Mr. Stasinos is ready to go, I think the neighbors, the timeliness of tt7le meeting, should be very soon. Mr. Hacker: what if we, if Mr. Kavanaugh had any questions then he would have to refer back to us, if he has no problem with plan as submitted why don't we allow him to proceed with letter j and have a neighborhood meeting. Mr. Fleming: I think thats good enough and have him come back at the next scheduled meeting. Mr. Bencal: that has not been set but will be within a month. Mr. Hacker: if Kavanaugh has no problem with this theres no sense in holding him up. Mr. Stasinos: I will comply with all those conditions. Mr. Hacker: what if we send Kavanaugh a letter instructing him to refer back to us if any changes are necessary. Mr. Fleming: would like to come to the next meeting. Mr. Hacker: we will have him come back at the next meeting. If there is no other business, the hearing is adjourned. Respectfully submitted, Brenda M. Sumrall Principal Clerk COrWNWEALTH OF MASSACHUSETTS Essex, ss Superior Court Department Civil"Action No. 86-1534 MIKE STASINOS ) vs ). CITY OF SALEM BOARD OF APPEAL, ) and James B. Hacker, Richard A. ) JUDCd4a*n Bencal, James M. Fleming, Edward ) Luzinski, Peter Strout, Arthur ) LaBreoque, Peter A. Dore, as they ) are Members of the City of Salem ) Board of Appeal ) It is hereby agreed by all parties that Judgment shall be entered fer--b1R-� in ham` ppeal from a decision of the City of Salem Board of Appeal, denying the Plaintiff's Petition requesting the Board to .issue a va- riance to .allow construction on premises located at #394 Highland Avenue, Salem, encompassing approximately twenty-five (25) acres and lying in Districts R-1, R-C, and BPD, which has been previously described as lying in Districts R-1, R-C,. and ..B-2, and that the contested decision of the Defendant Board of Appeal be aree&14ed AI and that its decision be entered granting a variance with the following conditions: 1) The Plaintiff, Mike Stasinos, shall withdraw a pending subsequent peti- tion presently before the Defendant Board of Appeal, with prejudice, upon final approval of this Agreement for udgment by this Court. 2) That the variance to be granted to the Plaintiff, Mike Stasinos, by the Defendant Board of Appeal shall contain the following Ctipilgtieas, that the Plaintiff agrees to: a) That the Plaintiff, Mike Stasinos, shall be allowed to construct 140 condominium residential units and a* *&9i4Pa building, containing a total of xCrY square ee of loor spaced on a parcel of land containing 27,000 square feet of land, all as set forth in a plan entitled "Highland Acres, Salem Highland Ave. Development Corp. , Owner and Developer, Peter F. DiMeo Assoc. Arch.", dated August 3, 1986, a copy of which has been furnished the Defendant Board of Appeal and the Cit Panner, t of 1 . 4.+C 3 ��.h I the Plain iff t ' StasinosRZt to the City of Salem a parcel of land totalling .4.1.acres of lard which shall be used by the City of Salem only-for soccer fields; and, that the Plaintiff shall develop, at his cost, y said proposed area, including screening, grading and seeding and fencing six (6') d feet in height all as defined and approved by the City Planner, City of Salm, � aoca ion designated in the aforementioned plan. �I ;�,Hy tlb c 1� 91Uara-+� i c) That the City Planner, City of Salem,/shall select a qualified prof Pssional engineer, at the Plaintiff's cost, who stfall provide his services, to !include the duties of Clerk of [abrks; and supervise and oversee -1- the construction to be undertaken by .the Plaintiff, to insure that said construc- tion complies with Section IV and V of the Sub-division Regulations of the City of Salem; and, that said Engineer shall: submit to the Board of Appeal and City Planner, City of Salem, a written progress report of the undertaken construction every two (2) weeks. That said engineering services shall include the supervision and overseeing of the improvements required in the installation of streets, road- ways, sidewalks, grass strips, monuments and utilities, all as provided in the approved definitive plans submitted by the Plaintiff. It is agreed that said services to be furnished by thelaintiff shall not exeed any and all normal de- sign standards for traffic impar and allow for waivers .*& by the Gi-t�+-P x�T� City of Salem, if deemed proper. .Final approval shall be given by the Board of Appeal, which shall not unreasonably be with-held. d) The Plaintiff, Mike Stasinos, shall submit a preliminary plan of the development to the Board of Health which shall be submitted and approved by the Board of Health, Conservation Cannission, City Engineer, Superintendent of Streets, Fire Department, Police Department, and School Department, City of Salem. e) The Plaintiff, Mike Stasinos, shall submit, prior to the start of construction, a final definitive plan of construction to the Board of Appeal; City of Salem, all in proper forth and contents as required by Section IIIB, of the Sub-division Regulations, City of Salem. y MIe - ssae.r she e3�te- rriti to work in-the i�reparatiorr of-site appur provided • la f) The Plaintiff, Mike Stasirios, shall, prior to construction, submit an Enviranental Impact Statement in full and clear form, indicating the relation of the proposed project to the total enviroment of the City of Salem and its in- habitants, and a copy of such to the Board of Appeal, City of Salem. g) The Plaintiff, mike Stasinos, shall file it SQlh} i City of Salem, a performance bond, in approved form, guar eer a e posed construction shall, upon ompletion, comply with this Agreement for Jud- gment. and all pertinent section of the Sub-division Regulations, City of Salem loor, to be applied to the unfinished work, prior to issuance of necessary owiplianc syo'�" permits. h) That the Plaintiff, .Mike Stasinos, in the construction of the sub- jest project, shall meet all design standards for streets, easements, open spaces, and the protection of natural features, all as set forth in Section IV and V of the Sub-division Regulations, City of Salem. The Board of Appdal and City Plan- ner, City of Salem, shall reserve all rights of final approval, which approval shall not unreasonably be with-held. i) That the Plaintiff, Mike Stasinos, in the construction of the sub- . jest project, shall meet all required improvements, as set forth in Section IV and V, Sub-division Regulations, City of Salem. -2- ril That a neighborhood review process shall be initiated between the Plaintiff, neighborhood residents and .the City Planning ;:Department, City of Salem, through which a neighborhood meeting shall be held to review the project and its components and necessary changes and alterations to such plans shall be made as requested within the parameters of the approved variance. Kof The Plaintiff shall contribute to any and all proposed traffic improvements on the Highland Avenue-Swampscott Road area , as deArined by the City Through its Comprehensive Traffic Study now being undertaken. Such a contribution shall be mad according to a formula designed such that all developments within the suurrrAountiing rg;etogn�rap„hiical area shall fairly share such . costs ,.JAO Yet J/ v L4?rl The Plaintiff shall be required to reserve a strip of land to be defined by the City, along Highland Avenue, for the fu- ture widening of the roadway if deemed necessry by the Comprehensive Traffic Study now being undertaken-.--- --- - ---_, M A ' No development, other than. that as shown on both the / preliminary and definitive plan, hereinbefore referred to, shall be developed on the land parcel at any time in the future .Jet _ �,x') That all exterior building designs, building locations, lighting, landscaping, infrastructure, and site planning and design elements of the proposed development shall be subject to the review and approval of the Board of Appeal and City Planner, City of Sralem. OA That a buffer zone of 200 feet along the eastern boun- dary of the property shall .be created so that the abutters of Pyburn Avenue and Madeline Avenue not be adversely impacted; and, that in order to eliminate any visual impact of the development uponthe abutting neighborhood, the proposed landscaping to screen buildings from the residences . of the above avenues shall be reviewed and ap- proved by the City Planner. The Plaintiff shall also provide that there be no other access to the parcel other than from Highland Ave- nue, prohibiting any acess to said parcel from Appleby. Road, Made- line Avenue, Pyburn Avenue , Ravenna Avenue, or Sophia .Road. X1-1—, - t,. P t) That there will be nonclosure of the median way on Highland Avenue, at the entrance of Ravenna Avenue. 'd' 4 .d) The Plaintiff shall relinquish the foundation and buil- ding permits, as issued by the City of Salem, currently existing for commercial uses on the parcel, upon final approval by . the Board of Appeal and allowance of this Agreement for Judgment by the Superior. Court. K vJ That all water, sewer and drainage improvements on thl !site shall be subject to the review and approval of the .City Planner and Director of Public. Services , City of Salem; and, that all issues .and concerns regarding drainage and wetlands shall be reviewed and 'approved by the Conservation Commission, City of Salem. -3- I, SV1 That an assessment of impact of the proposed project on existing infrastructure services, including water, sewer and drainage, shall be made by the City Planner and. Director of Public Services, City of Salem. That u on such assessment,p s ssment, the Plaintiff :.shall make any necessary improvements, at his costs, if. reauested by the City Planner and Director of Public Services . If it is deemed that improvements are necessary, and attributable to the project, to upgrade the existing wastewater pump station on Ravennaf4V-r• .said improvements shall be implemented by and at the cost of the .Plaintiff. �,xf If required by the State Department of Public Works , the Plaintiff shall contribute the demanded funds for drainage im- provements proposed in the vicinity of. Rich 's Department Store, Highland Avenue; Salem, in an, effort to eliminate drainage problems found in the geographical area. u yJ That the City Planner shall submit a written statement of satisfaction of all such conditions to the Building Inspector, City of Salem, prior to the issuance of a building permit. V0 That the Plaintiff shall complete all construction and install all required municipal services within three (3) years from date of approval of the definitive plans; and, he shall pro- vide that the proposed construction will be in five (5) phases, all as provided for in the definitive plan to be submitted for approval . 1) That, in the work to be done on said project, the General Contractor and all sub-contractors shall restrict the performance of the work between the hours of 7 :00 A.M. and 6 : 00 P .M.. , Monday through Friday, excluding work of a quiet nature . rk.c hovies 1;va AM/ Ti�A/6- ShH/I /,.e• Ae7cFj2kl vet J1 7tiP 5.4/PL/ F,n� �•��.N,Sry,///, 2) That the By-Laws of the Condominium Association to be executed and administered by the Condominium Association, shall provide that all costs of trash collection and snow removal shall be paid. for by the Association August t-, 1986 Mike Stasinos , Plaintiff, by his attorney Nicholas G. Curuby -- 7 Franklin Street Lynn, MA. , 01902 (617) 595 0009 i it r ,City of Salem, Board of Appeal, Defendant, by its attorney ILI EO City Solicitor %_ @ice City Hall, 93 Washington St. Salem, MA. , 01970 MJ . The petitioner, Mike Stasinos, amend his deed to .the real property located at 394 Highland Avenue, Salem, Massachusetts, said amepdment to be a covenant not to build on Ig portion of.said real estate, other than on that portion utilized for` ondominium units aid amendment is to be approved in form by the City Solicitor. That the petitioner, Mike Stasinos, upon filing of the Definitive the Plan with • or Board of Appeal, shall also file said Definitive Plan with the Boar �em Sewe th. of ti. o e pu L i II t IHIGHLAND AVENUE CONDOMINIUMS FINAL EIR i HMM Document No. 588—F IApril 30 , 19849 Prepared for: ISTASINOS h STASINOS 544 Chestnut Street + Lynn, Massachusetts 01902 f 1 Prepared by : HMM ASSOCIATES 336 Baker Avenue Concord, Massachusetts 01742 I 1 TABLE OF CONTENTS Page— 1. Introduction 1 2. Comments Received on Draft EIR 3 I 3. Responses to C.omments 4 i i 1 1 -ii- II� 1. INTRODUCTION I This document is the Final EIR for the proposed Highland Avenue Condominium project (EDEA #4884). The project , located in Salem, proposes 30,000 GSF of retail and office space and 216 condominium units. The Final EIR has been prepared pursuant to the Executive Office of Environmental Affairs (EDEA) Regulations governing the implementation of the Massachusetts Environmental Policy Act (MEPA') , General Laws, Chapter 30, Sections 62 to 62H inclusive. This Final EIR contains all comments received from State and local agencies and from the general public. Responses to these comments have been drafted by the project proponent . The Draft EIR is not being recirculated with, or as part of, the Final EIR. Subsequent sections of the Final EIR are as follows : Section 2, Comments on the Draft EIR In this section, the proponent has included copies of all comments received on the Draft EIR. Comments were received from two agencies, including the EDEA. • The Secretary of the Executive Office of Environmental Affairs (EOEA) a Metropolitan Area Planning Council (MAPC) In the margins of these comments the proponent has placed 1 circled numbers (i. e. , (1) , (2) , etc . ). These numbers are used as a key to the proponents' responses in the subsequent section. Section 3, Responses to Comments In this section, the proponent has responded to. each of the comments submitted. Responses include clarification of ' I 0131D _i_ r - statements made in the Draft EIR, and descriptions of additional efforts undertaken in response to comments. II t 1 I I j i 0131D -2- I2. COMMENTS RECEIVED ON DRAFT EIR I ( i ( 1 I � 0131D -3- �e Zaammanuaea i 9 aaaade apl6 lug �xeuc�ue © ice t�Urnvixonmevrlrc�,Q� i�s 700 �oam�rta/�r e �xeel -@Odom, A&aa&U1/, 02,20.°0 MICHAEL S. DUKAKIS GOVERNOR JAMES S. HOYTE SECRETARY ICERTIFICATE OF THE SECRETARY OF ENVIRONMENTAL AFFAIRS ON DRAFT ENVIRONMENTAL' IMPACT REPORT i . PROJECT NAME ; Highland Avenue Condominium IPROJECT LOCATION : Salem EOEA NUMBER 4884 PROJECT PROPONENT Michael Stasinos DATE NOTICED IN MONITOR: February 7, 1984 1 The Secretary of Environmental Affairs herein issues a statement that the Draft Environmental Impact Report submitted on the above-referenced project does adequately and properly comply with Massachusetts General Laws, Chapter 30, Section 62-62H inclusive, and the regulations implementing MEPA. The FEIR should address my comments and the issues raised in the attached letter from Metropolitan Area Planning Council (MAPC). OTRAFFIC - The FEIR should contain commitments to implement the mitigative measures identified in the DEIR and should contain a reporting of conversations with Mass. Department of Public Works about what can be done and what will be permitted by DPW. 1 O WETLANDS/FLOODING - The FEIR should present detailed information on the effect of the increased discharge to the Highland Avenue drainage system aid an assessment Iof the capacity of this system to handle the increased runoff. MISCELLANEOUS - As indicated above, I have adopted the comments of MAPC as my own. These comments should be addressed in detail in the FEIR. i March 22, 1984 D TE S S. HO E,/VCR T JSH/RNF/dc Attachment FORM D Metropolitan Area Planning Council t .I 110 Tremont Street Boston, Massachusetts 02108 (617)-451-2770 M�C Serving 101 Cities 8 Towns in Metropolitan Boston March 7, 1984 RECEIVED i The Honorable James S. Hoyte, Secretary «AR a4 I � 100ExecCambridgeutive iStreetce of Environmental Affairs CFF1rr C� TN_ SCCRETAN G Boston, MA 02202 E\':1R0t.t1ENTFLAFFAIRS Attention: MEPA Unit RE: Highland Avenue Condominiums, Salem (MAPC #EIR-84-13, EOEA #4884) Dear Secretary Hoyte: I In accordance with the provisions of Chapter 30, Section 62 of the Massachusetts General Laws, the Council has reviewed the above Draft Environmental Impact ' Report. The project proposes the construction of a 216-unit condominium development and 30,000 sq. ft. of retail and office space along Highland Avenue, Route 107, in Salem. Generally, the DEIR contains a clear description and adequate analysis of probable environmental impacts, but fails to present necessary mitigating measures and site-specific recommended actions in detail. In addition, we have the following specific comments and questions: Traffic O3 1. More information is necessary to comment on the traffic impacts j of the project. A description and illustration is needed for the project'saccess along Highland Avenue. This should show geometry, direction of traffic, number of lanes, etc. O4 2. The estimate of one percent per year regional growth in ADT is probably low (page 6-16). OS 3. The assumptions used for trip distribution need to be better defined (figure 6.108) , particularly to explain why more trips — are not generated onto Swampscott Road by the project. IDrainage O8 1. Land alterations and roadway construction within the .5 acre Spring Pond catchment and wetland-buffer zones -should be described in more detail. To what extent will cutting and filling affect the wetland area and what are the mitigating measures? Elizabeth A. Bransfield, President William C.Sawyer,vice-President - Frank E. Baxter,Secretary Patricia A.Brady,Treasurer 111 Executive Director:Alexander V.Zaleski Secretary James S. Hoyte - 2 - March 7, 1984 General O1. What are the effects of significant grading and excavation on the site mentioned several times in the report? O2. The site plan does not show proposed landscaping on the site or as buffer. The Council looks forward to reviewing additional information regarding this project. Additional comments are attached from the MAPC representative from Salem. 1 Sincerely, i J ' Joel B. Bard Assistant Director/ General Counsel• JBB/LS/lab Attachment cc: W. Gregory Senko MAPC Representative, Salem ' Michael Stasinos Stasinos & Stasinos Denny Lawton MAPC Staff Laura Stambaugh t MAPC Staff i i .I r Metropolitan Area Planning Council 110 Tremont Street Boston, Massachusetts 02108 (617)•451-2770 tienirg 101 Citlri ti L)t.n. m ?.fe!rr� oliLtn Bo>;nn :I ,fit dAPci DATE: February 6, 1984 i .D. is DEIR-84-13 f :._:. =!.; TO: W. Gregory Sen.ko I COMMUNITY: Salem Enclosed is a description of the project referenced below. II The Council requests that you consider whether this report adequately describes the project's impact upon your community and addresses significant environmental tenefits and potential dar,ages. PROJECT TITLE: Highland Avenue Condoniniums THE COUNCIL HAS ONLY 20 CALENDAR DAYS TO FILE COMMENT 'WITH E.O.E.A. TO MEET THIS DEADLINE, YOUR COMMENTS MUST BE IRECEIVED AT THE MAPC BY March 5, 1984 IQ ADEQUATELY DESCRIBES ENVIRONMENTAL IMPACTS MERITS FURTHER ENVIRONMENTAL STUDY IQ NEED MORE INFORMATION EXPLANATORY COMt4ENTS: 1. Under the site present zoning, the proposed project would not be allowed. Site O would require re-zoning to R-3 by City Council 70 2. Putting aright at Highland Ave, entrance would force traffic to block median-cut 8 at Ravenna causing a hazard. If median were filled, Ravenna residents would have to go to Lynn and make a U-turn if Salem were destination. Likewise, if project I does not get a median-cut, project residents would have to go to Lynn and turn around. 1 1 ._3.__City Engineer says there is already a need for a new pumping station at Ravenna Rd. OProposed project would impact this further. �p 4. What is the impact on Storm Water Brook and the Peabody watershed? Not adequately addressed. (SEE OVER) r — SIGNATURE: ' DATE IElizabeth A. Bransfield,President William C.Sawyer,Vice-President .Frank E. Baxter, Secretary Patricia A. Brady.Treasurer Executive Director;Alexander V. Zaleski ( O5. April 83 wetlands regulations prohibit the removal of more than 5000 sq. ft. of �g wetlands. Project proposes to fill all 3 wetlands on site (over 2 acres), There 13 no plan to preserve or replace these upland wetlands. r � l 1 i r 3. RESPONSES TO COMMENTS Response to Comment it Proposed mitigative measures/recommended actions to promote more efficient traffic flow in the project study area Iare outlined in Section 6. 1. 4 (pages 6-28 through 6-31) of the DEIR. As noted at the top of page 6-31 of the DEIR, these Imitigative measures are proposed for implementation independently of this project , under either the Build or No-Build Alternative. The mitigative measures considered include design improvements at the Highland Avenue/Swampscott Road intersection that could significantly improve future traffic operations. These measures consist of the signalization of the Iintersection as well as the implementation of an exclusive right-turn lane for vehicles entering Swampscott Road from the south. Implementation of one, or both, of these measures would improve the A.M. peak hour LOS from B to A and the P.M. peak hour LOS from E to C. This improvement in intersection LOS ' would occur under both the Build and No-Build Alternatives. Analyses of these mitigative measures indicates that the V/C ratio and LOS at the Swampscott Road intersection would be the same whether or not the project is built . Table 6.1-6 of the DEIR indicates that the A.M. peak hour V/C is . 70 with a corresponding LOS B under either the Build or No-Build Alternative. This table also shows that the P.M. peak hour V/C I is .96 with LOS E for either alternative. Therefore, in any case , future capacity deficiencies would be realized at the Highland Avenue/Swampscott Road intersection during the P.M. peak hour. Peak hour vehicle trips added to the study area roadways by the planned Highland Acres development• will have a much more significant influence on traffic flow at this " "Highland Acres Draft Environmental Impact Report" , EOEA I #4573, HMM Associates, April 1983. 0131D -4- intersection than that estimated for the proposed project. Specifically , the Highland Acres development, when completed , will result in a traffic operations change from LOS C to LOS E during the P.M. peak hour at the Highland Avenue/Swampscott i Road intersection. The mitigative measures considered in conjunction with this project also include signalization of the Highland II Avenue/Project Access Drive intersection. Implementation of this measure would be accompanied by a median-cut that would allow traffic exiting the Project Access Drive to enter the Highland Avenue traffic stream in either direction. However, installation of this signal (with accompanying median cut) at I the project entrance could cause traffic to back-up and block the median cut at Ravenna Avenue, about 500 feet to the north. A meeting was held at the MDPW District 5 Office on Tuesday , April 24, 1984 to discuss alternative traffic control operations and design measures for the project. In attendance at this meeting were MDPW officials, the project proponent , and . a representative from HMM Associates. A description of the alternatives discussed at this meeting , including the basis for t considering signalization of the project entrance, is presented ` in the Response To Comment #10. IResponse To Comment #2 The area identified in the Draft EIR as Catchment D, the Highland Avenue Catchment , contains all portions of the site contributing runoff to the Highland Avenue drainage system . As indicated in tables 6. 3-2 and 6. 3-4 of the DEIR, the increase I in peak discharge from this catchment due to the development would be from roughly 88 cubic feet per second ( cfs) to roughly 130 cfs for the 50 year design storm if this discharge were uncontrol or not retained. The goal of the drainage plan in this portion of the development is to maintain peak discharges from this area to the drainage system beneath the department _ store parking lot at essentially pre-development levels. For ithe 50 year design storm, this is approximately 88 cfs. 0131D -5- The developer proposes to accomplish this goal by limiting the size of inlets or conduits which convey runoff from the site to the drainage system beneath the department store. This appears to be feasible based on the potential water retention volume available in the onsite parking areas compared with the size of the contributory catchment. Inlet structures and drainage pipes will be sized and designed in final site plans , however , based on flow relationships for piped culverts with entrance control* , a terminal pipe diameter of 30". would Imaintain discharges below 80 cfs for equivalent head pressures up to 10 feet , thus' ensuring pre-development peak drainage levels. Catchment D, discussed above , represents a portion of what the MEPA letter of March 22 refers to as the Highland Avenue drainage system. This entire system represents all drainage ' contributory to the drainage pipe beneath Highland Avenue opposi-te the department store and includes drainage from the department store catchment (Catchment E in DEIR) . The present [ capacity of this Highland Avenue drainage system is difficult . to determine with certainty due to apparent subsidence and infiltration beneath the department store parking lot . The best evidence of the capacity is a reported lack of historic I parking lot flooding due to drainage backups . If this system were to reach its subsurface capacity, the adverse impact would be a temporary backup of runoff into the shopping center parking lot and possibly onto Highland Avenue. Ponding which presently occurs in this parking lot appears to be due to uneven settlement which has formed isolated depressions rather than due to surcharges to the subsurface system . In assessing the potential flooding effects of increased runoff volume to the Highland Avenue drainage system , two locations appear to be of primary concern. These are the i * For example , see nomographs in Appendix B, "Hydraulic Computations in Design of Small Dams, United States IDepartment of the Interior , 1977 . — 0131D -6- culvert which will connect the development site to the Highland Avenue drainage system and the drainage pipe beneath Highland Avenue. As described above, discharge to the first location will be controlled by limiting the size of the storm drainage inlets and/or the terminal culvert , and the developer has agreed to implement these measures in the final design plans . This will essentially maintain peak site drainage from this area at pre-development levels. The consequence will be possible temporary flooding in the parking area of the new development during periods of intense storm runoff . As previously mentioned, the lack of drainage backups in the department store parking lot suggests that the drainage pipe beneath Highland Avenue has not been surcharged to a degree which cannot be handled within the subsurface system. The extent to wich pipe subsidence , leakage , and infiltration I has mitigated flooding in this area is not clear , but it may be a factor . Following development , the chance of temporary ponding in the department store parking lot during intense runoff periods will increase somewhat due to the increase in total runoff volume. This increased probability is small because of the system' s present ability to effectively remove storm runoff and the limitation on peak runoff rate from the development . Response To Comment #3 The attached drawing shows the access drive for the project in more detail . 1 Response To Comment #4 The assumption of one percent per year regional growth in ADT is based primarily on a review of regional traffic volume trends at several MDPW control count stations , as well as j recent local trends in population growth (i .e . , as indicated by data taken from the decennial U.S. Census) . The Salem Planning I U131D -7- h a • , � h ON }I3 N 0 � •ml b Z h ii b I i OMN, • 3c.e. w A LANE �- LERLiTION uN a 53957 SZ"W --- POU &rp - -� - M Proposed Signal Locations ' I Department was contacted in order to obtain additional local input prior to determining the estimated ADT growth factor. The estimated growth rate of one percent per year does not account for planned growth and development associated with the Fafard Companies ' Highland Acres project . This growth rate is consistent with that developed and used by HMM in preparing the Highland Acres EIR, which was determined to adequately meet MEPA requirements. In predicting the rate of traffic growth in the project study area, a review of regional ( i. e. , North Shore area) traffic volume trends was conducted. MDPW traffic count data was obtained for North "Shore area roadways of similar type and usage characteristics as Highland Avenue (Route 107) . The data I obtained was for the most recently available five-year period (i.e. , 1976-1980) and consisted of counts at the following locations: 1. MDPW Station 555000 : Route l . in Peabody at the Danvers Town Line; i 2. MDPW Station 556000 : Route 127 in Manchester at the Gloucester City Line; 3. MDPW Station 550200 : Routes 125 and 114 in North Andover ,just west of the Andover By-Pass; and 1 4. MDPW Station 550300 : Routes 97 and 113 in Groveland at the Haverhill City Line. A review of this data revealed an average yearly decrease in ADT at Locations 1 and 2 of ten percent and eleven percent , respectively . Meanwhile , Locations 3 and 4 exhibited an average yearly change of plus two percent and minus one percent , respectively. The U .S. Census population data for the City of Salem from the year 1930 through 1980 was also reviewed in order to check for any correlation to decreasing traffic t 0131D -9- r volumes . The population of the City of Salem decreased by approximately twelve percent during this time period. More recent trends show a population decrease of approximately six percent between 1970 and 1980 . These decreases provide supportive evidence toward a trend of stable or decreasing traffic volume in the project area. From the data evaluated as a part of this study , it does not appear that the established regional growth rate for ADT on study area roads is too low. lResponse To Comment #5 The distribution of project-generated trips was based upon I regional trip tables developed by the Central Transportation Planning Staff (CTPS) . The CTPS data identified general origin-destination patterns of person-trips to and from the Salem area . Project-generated traffic was then assigned to specific local routes based on the anticipated distribution of future trips (i.e . , same as that shown by CTPS Trip Tables) . iThe venicle assignments generally reflect minimum-path routings from the proposed site to and from the various origins- destinations. IOnly approximately three percent of the project-based trips are generated onto Swampscott Road. This relatively small amount of additional traffic is due primarily to Swampscott Road' s orientation with respect to the other study area access roadways (including the project access drive) as well as the fact that it does not provide service to a large (i .e . , both in numbers and land area) population base. As mentioned in the DEIR , it is anticipated that this roadway would serve only a relatively small portion of the vehicles approaching the I project site from Lynn, Revere , and Nahant . The remaining portion of these vehicles would likely use Route 129 west to Route 107 north toward the project site . This route is the minimum distance path to the site from the south. Also , it is t 0131D -10- r . . Iassumed that a majority of the trips to and from Marblehead, located north/northeast of the study area, would use the minimum-path routing along Route 107, Willson Road, and I Route 114. Response To Comment i6 IThe site plan presented in the DEIR will be modified to eliminate any construction, filling or land alterations within 1 the 0.5 acre wetland in the Spring Pond Catchment. It appears that this modification will be minor, involving the relocation of the internal roadway and at least one housing unit to avoid alterations in the wetland mapped by the City of Salem. The details of this modification will be determined in close consultation with local permitting authorities. This modification has been adopted to preserve this 0.5 acre wetland and is not expected to have a significant impact on the drainage calculations and other impact analyses included in the Draft EIR. Erosion control and soil stabilization programs discussed relative to the other two wetland areas ( see section 6. 3.5 of OEIR) will be undertaken to mitigate impacts to this wetland area. Thus, there will be no cutting and filling of any of the onsite wetland areas, and construction within the buffer-zones will be controlled to minimize adverse effects. The project must receive a change in local zoning before the condominium portion of the project may be constructed . Once this zoning change is secured, the developer will apply to the Salem Conservation Commission for an Order of Conditions for ' alterations within the buffer zone. IResponse To Comment 07 The grading and excavation on the site will generally serve to eliminate the steep slopes and ledges that currently exist . The land will be graded to provide a level and more I 0131D -11- suitable site for the development of the proposed buildings, ' I roadways, and parking areas. The effect of this grading and excavation on drainage was considered in the Draft EIR by incorporating post development slopes into the drainage analysis. Thus, the comparison of existing site drainage to the future case incorporates the effects of planned grading and excavation. Response To Comment #8 IThe goal of the developer is to maintain as much of the existing vegetation as possible. Existing trees will be preserved to provide a buffer between the homes on Py burn Avenue and Madeline Avenue. In addition, the wetlands along the northeast boundary of the site will. provide a buffer strip . approximately 125 feet wide between the proposed condominiums and these residences. A buffer strip of approximately the same width is provided along the southwest site boundary. ( Within the site , landscaping will include grassed lawn j - . areas and ornamental plantings as well as existing large I trees. A more detailed landscaping plan has not been prepared at this time. Response To Comment #9 The project proponent is aware that re-zoning of portions of the site is required and has been pursuing this through ilocal meetings. Response To Comment #10 A check of the MUTCD* warrants for the installation of a 1 traffic signal at the Project Access Drive/Highland Avenue intersection indicates that the minimum requirements for i * Manual on Uniform Traffic Control Devices for Streets and I ig ways , Department oTransportation a era g way Administration, 1978. 0131D -12- Warrant i2 (Interruption of Continuous Traffic) would be ' satisfied . The Interruption of Continuous Traffic warrant applies to operating conditions where the traffic volume on a major street is so heavy that traffic on a minor intersecting street suffers excessive delay or hazard in entering or crossing the major street. The warrant is satisfied when, for each of any 8 hours of an average day , the traffic volumes given in the following table exist on the major street and on the higher- volume minor-street approach to the intersection, and the signal installation will not seriously disrupt progressive traffic flow. Number of lanes for Vehicles per hour Vehicles per hour on moving traffic on each on major street higher-volume minor- . approach (total of both street approach (one Major Street Minor Street both approaches) direction only) 1 1 750 75 2 or more 1 900 75 2 or more 2 or more 900 100 [ 1 2 or more 750 100 I These major-street and minor-street volumes are for the same j8 hours. During those 8 hours, the direction of higher volume on the minor street may be on one approach during some hours and on the . opposite approach during other hours. Since Highland Avenue has two approach lanes in each ! direction and the Project Access Drive would consist of one approach lane, the second row of volume criteria was evaluated . i The ATR data collected for the DEIR was used to develop 8-hour factors* for each approach at the project entrance . The methodology used in developing these factors is as follows : 1 1) Calculate directional 8-hour factors for ATR location at Highland Avenue north of Rich' s Mall; * The 8-hour factor describes average hourly volume as' a percentage of peak hour volume as opposed to the actual 8th highest hourly volumes, will tend to slightly overestimate subject approach volumes at the project entrance. 0131D -13- 2) Calculate directional 8-hour factors for ATR location at Highland Avenue south of Rich' s Mall ; and I� 3) Apply the average 8-hour factors derived for these I locations to peak hour volumes for the corresponding approaches at the project entrance. The average 8-hour factor for the two ATR locations is 0.83. Accordingly , this value was used as an estimate of the 8-hour Ifactor for the project access drive outbound approach. Also, the average northbound factor of 0.85 was applied to the Highland Avenue northbound approach. The average southbound factor of 0. 81 was applied to the Highland Avenue southbound approach. Application of these factors to the project entrance approach volumes resulted in the following average hourly volumes : Highland Avenue Northbound = (1089) (0.85) = 926 Highland Avenue Southbound = (1162) (0. 81) = 941 Project Drive Eastbound = (129) (0.83) = 107 VEHICLES PER HOUR ON THE MAJOR STREET ( total of both - approaches ) = 926 + 941 = ,1867 VEHICLES PER HOUR ON THE MINOR STREET APPROACH = 107 A comparison of these values to the minimum volumes ' outlined in the second row of Warrant #2 indicates that the Highland Avenue/Project Access Drive intersection warrants consideration for a traffic signal. Traffic flow on the major street approaches (i. e. , Highland Avenue) is more than double the minimum required , while average volume on the minor street approach exceeds the minimum requirements by approximately 43 percent . However, installation of this signal could force 1 traffic to block the existing median-cut at Ravenna Avenue and l 0131D -14- I Icreate congestion and increased accident potential. Also, if this median-cut were filled, Ravenna Avenue residents would have to proceed southbound to Lynn and make a U-turn if Salem were their destination. ( NOTE : U-turns are currently I prohibited at all median breaks in the study area. ) Similarly, if the project does not get approval for a median-cut , project residents would have to travel into Lynn and then turn around if going to Salem. It appears one solution to this dilemma might be to have Icoordinated signals at both the Project Access Drive and Ravenna Avenue intersections. This type of coordinated signal system would allow traffic to flow in the same directions at the same time at both locations. Median-cuts would be allowed at both intersections. Traffic along Route 107 would flow through each intersection without being, impeded by cross- traffic . The probability of right-angle accidents would be reduced. The signals would allow vehicles from Ravenna Avenue and the Project Access Drive to enter the Highland Avenue t traffic stream without excessive delays or hazards from [ oncoming traffic on the main approaches. The necessity of travel to Lynn and/or U-turns for trips having destinations in Salem would be eliminated. One disadvantage of the implementation of this measure would be the possible interruption to the continuous flow of traffic in both directions along the major route (i. e. , Highland Avenue) . There are two additional alternative traffic control measures for the Ravenna Avenue intersection . They are as follows : 1) Installation of a left-turn storage lane for I vehicles turning left from Highland Avenue northbound to Ravenna Avenue; and 2) Filling of the existing median-cut at Ravenna Avenue and construction of a by-pass road to the Project Access Drive. I U131D -15- ( The implementation of Alternative O1 would require some modifications to the existing alignment of Highland Avenue. The horizontal curve of that portion of the roadway near the Ravenna Avenue intersection would need to be reduced in order to improve sight distance and make room for the additional I turning lane. This turning lane would provide a relatively safe place for left-turning vehicles to wait for an acceptable gap in oncoming traffic . The implementation of Alternative 02 , meanwhile , would Ieliminate left turns into and from Ravenna Avenue. Conflicts With cross-traffic on Highland Avenue and right-angle accident potential at the Highland Avenue/Ravenna Avenue intersection would be eliminated. However, left-turn conflicts and accident I potential at the Project Access Drive would be increased by an amount corresponding to the number of vehicles using the new ' by-pass road. The advantages and disadvantages of each alternative , including signalization at both the Project Access Drive and fRavenna Avenue , have been discussed with MDPW District 5 officials. At the present time, there has been no conclusion regarding the most feasible improvement alternative. Further analysis of traffic operations at. the Ravenna Avenue I intersection may be necessary prior to the selection of one of these traffic control measures. Additional meetings with MDPW officials are planned to further discuss the merits of each alternative and to decide on specific analysis procedures for the Highland Avenue/Ravenna Avenue intersection. I Response To Comment 011 When the appropriate re-zoning of the parcel is made , careful examination of the Ravenna Road pumping station will be I made. The developer has agreed to provide any repair or Ili upgrading of this station that may be required as a result of this project . This issue will be resolved with the City Engineer prior to construction of any condominium units on the site. 0131D -16- fl IResponse To Comment 412 ( For clarification, the Peabody Watershed is referred to as I the Spring Pond Watershed in the DEIR and it is assumed that I Storm Water Brook mentioned in the MAPC letter refers to the Strongwater Brook Watershed described in the DEIR. As discussed in section 6. 3. 4 of the DEIR, potential impacts to both these watersheds are: I • water quality affects including effects on fisheries and water supply a loss of flood mitigation potential It is anticipated that both of these potential impacts will be so small as to be undetectable. This conclusion is based primarily on the large extent of downstream undeveloped land in each watershed compared with the small development areas . The onsite portions of the Spring Pond Watershed and the Strongwater Brook Watershed are 5. 7 and 4. 3 acres, respectively . Based on plans to preserve existing wetlands in these two areas, the maximum extent of residential development will be approximately 4 and 3 acres in the two watersheds; respectively . Pollutants of primary concern associated with the construction and operation of this residential development will be suspended solids and small quantities of traffic related pollutants such as lead, copper, and oily substances. The developer' s proposal incorporates catchbasins and oil traps in the drainage systems to reduce sediment and pollutant loads prior to discharge. However, the most important factor in mitigating both runoff quality and quantity impacts is the downstream distance to flow restriction structures or ponds in both watersheds. In the 260 acre Spring Pond Watershed, the onsite portion is one of several upstream reaches which drains through over 2000 feet of natural channels and several wetlands 0131D -17- f to Spring Pond. Within the Strongwater Brook Watershed it is over 6000 feet from the headwaters on the site to the nearest ( culvert or flow restriction according to the most recent i U.S.G.S. topographic map. In both cases wetlands and natural drainage serve to dampen out minor increases in both runoff and pollutant loads. For flood related impacts this mitigating effect is demonstrated in the modeling results for the Spring Pond Watershed where there is no increase in the predevelopment discnarge of 380 cfs to the pond associated with the 50 year design storm. At the selected design point in Upper Strongwater Brook the increase in peak discharge associated with the 50 year storm is from 185 to 192 cf s. In terms of water quality impacts, based on present construction and land use plans, similar negligible effects can be anticipated due to the aforementioned onsite and offsite mitigating measures. The site' s location within these watersheds suggests that the magnitude of water quality changes occurring in Strongwater Brook or Spring Pond would not be detectable within the sensitivity of sampling, chemical, or biological investigations. Response To Comment #13 ISee Response #6. The proponent is aware that wetland regulations prohibit the alteration of more than 5, 000 square feet of wetlands . The proponent intends to work with the Salem Conservation Commission to slightly modify the site plan to l avoid the infringement of the Spring Brook Catchment wetland area.. Alteration of other wetlands is not and has not been contemplated. 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