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394 HIGHLAND AVENUE - ZBA (6) 39 fc d Pwl , 1 l f f Ctu of ttlem, Httsstt�i# sP##� : . Pourb of C p"Vd 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: w- 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!�hi,s',Alleg.aation. Zt 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 . e 0 The third suit involves strickly a suit in reconveyance of land that T 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 r MINUTES EXECUTIVE SESSION 1/27/88 CONTINUED PAGE TWO • 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 that Ibe 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. O,�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 0 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. cases? 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? r 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 m'5iopinion 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, theoretically 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 conditions . 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 pretend,7, 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. Mr. 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 Isaying - 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 4velop 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 he 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 0 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 existence 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 rela.tive .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 i:f 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 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 thats 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 r 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. ubmitted by: Lorraine Devoe, Clerk (flit of "Mem, Anssar4usetts t { 0 J IItiY 3 `f a u{ �lJpeal R ti t , March 16, 1987 z I Gerard Kavanaugh City Planner City of Salem i Dear Mr. Kavanaugh: On August 18, 1986 the Board of Appeal entered into a Consent Judgment with Mike Stasinos for property located at 394 Highland Ave. This Board authorized the City Planner to assume its review responsibilities for this residential development project. Specifically, these responsibilities apply to items 2c, 2h and 2n of subject judgment. City Solicitor, Michael O'Brien has concurred with the Board of Appeal in this delegation of responsibility as the Board is a volunteer Board which does not have the staff capability to administer a project of this scope. The Board of Appeal's major concerns have always related to the use and the density of the project which we recognize will remain as approved. e Thank you for your cooperation in this matter. Very truly yours, ,es B. Hacker Chairman, Board of Appeal JBH:bms cc: file i r F t ,I IF I :- CtU of %Iem, _2 ttssttr4usrtt9 ILI Prl July 28, 1986 Michael E. O'Brien, Esq. City Solicitor 93 Washington St. Salem, MA 01970 RE: Mike Stasinos vs Board of Appeal, Complaint #86-1534 Dear Mr. O'Brien: On July 23, 1986, after a public hearing held at One Salem Green, Salem Massachusetts, the Sal-en, Board of Appeal voted 5-0 to request that you enter into negotiations with Mike Stasinos, relative . to the above-captioned case. The Board of Appeal's decision was predicated on the thirty three (33) conditions enclosed herein. All these conditions must be accepted by Mr. Stasinos, on or before August 21 , 1986. Sincerely, lames M. Fleming Member, Board of Appeal JMF:bms Enclosed: List of conditions CONDITIONS 1 . Petitioner, Mike Stasinos enter into an agreement with the City Solicitor, City of Salem for dismissal of Complaint #86-1534, now pending in the Superior Court Department, Commonwealth of Massachusetts. 2. Petitioner, Mike Stasinos waive all his appellate rights in the matter of his petition to the Board of Appeals, City of Salem, dated May 14, 1986, in a form approved by the City Solicitor. 3. 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 any portion of said real estate, other than on that portion utilized for 126 condominium units. Said amendment is to be approved in form by the City Solicitor. 4. The petitioner, Mike Stasinos, deed to the City of Salem a total of three (3) acres, said acres to be used for public soccer fields. 5. That the Board of Appeal have the full time services of a consultant to serve as a Clerk of the Works, monitored weekly by the City Planner, to ensure that proper construction practices are adhered to in the development of 394 Highland Avenue, Salem, Massachusetts. The petitioner, Mike Stasinos, shall reimburse the City of Salem, on a monthly basis, the full cost of such Clerk of the Works. No further development of the site shall take place until such Clerk of the Works is hired and is present on the site of the development. 6. That the preliminary plan of the development, as has been submitted by the petitioner to the Board of Appeal be approved by the Board of Health, Con- servation Commission, City Engineer, Superintendent of Streets, Fire Department, ,Police Department and School Department. 7. That, prior to any construction, the petitioner file with the Board of Appeal a Definitive Plan, in form and with the contents required by Section III B of the subdivision regulations. 8. That the petitioner, Mike Stasinos, prior to any construction, file an Environmental Impact Statement, clearly showing the relation of the proposed project to the total environment of the City and it's inhabitants. 9. That the petitioner, Mike Stasinos, upon filing of the Definitive Plan with the Board of Appeal, shall also file said Definitive Plan with the Board of Health. The Board of Health, within thirty (30) days, shall report to the Board of Appeal the effect of the development on the municipal sewerage system and whether any building on site might be injurious to the public health. 10. Petitioner, Mike Stasinos file a performance guarantee bond, in an amount and form approved by the City Solicitor. 11 . Petitioner, bike Stasinos meet all the design standards for streets, easements, open space and the protection of natural features, as set forth in Section IV of the subdivision regulations of the City of Salem, final approval resting with the Board of Appeal. CONDITIONS - PAGE TWO 11. Petitioner, Mike Stasinos, meet all the required improvements for an approved subdivision in relation to street and roadway, sidewalks, grass strips, monuments and utilities, as set forth in Section V of the subdivision regulations of the City of Salem, final approval resting with the Board of Appeal. 13. That the petitioner, Mike Stasinos, complete all construction and install all required municipal services within two (2) years of the date of approval of the Definitive Plan. 14. That the petitioner meet all the conditions recommended by the City Planner, and that they be annexed and merged in these above mentioned conditions. lr, 15• That the petitioner, Mike Stasinos, work on the site only between the hours of 8:00 a.m. to 5:00 p.m. , Monday through Friday. 16. That the collection of trash and plowing be done for perpetuity by the Condominium Association and not the City of Salem. 17. A maximum of 126 units shall be constructed, with such construction taking place on the northernmost portion of the parcel, as defined by the City Planner. Such a density on the entire 26 acre parcel represents approximately 6 units per acre, or 7,000 square feet per unit, which is not dissimilar to the density of the abutting neighborhood. 18. A neighborhood review process shall be initiated between the developer, neighborhood residents, and the City Planning Department, through which a neighborhood meeting, at the convenience of the neighbors, 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. , 19. The developer shall be required to contribute to any and all proposed traffic improvements in the Highland Avenue/Swampscott Road area, as defined by the City through its Comprehensive Traffic Study now being undertaken. Such a contribution shall be made according to a formula designed such that all developments within the surrounding geographical area shall fairly share such cost. 20. The developer shall be required to reserve a strip of land to .be defined by the City, along Highland Avenue, for the future widening of the roadway if deemed necessary by the Comprehensive Traffic Study now being undertaken. 21 . No commercial development shall be developed on the land parcel at any time in the future. 22. Three (3) acres, or a greater amount to be defined by the City Planner, shall be deeded to the City of Salem and be developed, by and at the test of the developer, for outdoor recreational use and ancillary parking for such use, as defined by the City. the developer shall also provide screening, landscaping and fencing for these facilities as required by the City Planner. 23. All exterior building designs, building locations, lighting, landscaping, infrastructure, and site planning and design elements of the proposed develop- ment shall be subject to the review and approval of the Planning Board. 24. A buffer zone of 200 feet, along the eastern boundary of the property, shall be created so that residential abutters of Pyburn Avenue and Madeline Avenue shall not be adversely impacted. CONDITIONS - PAGE THREE 25. Landscaping to screen buildings from the Pyburn Avenue and Madeline Avenue residences shall be reviewed and approved by the City Planner and abutting residents. Such landscaping shall eliminate any visual impact of the develop- ment upon the abutting neighborhood. 26. No access shall be provided to the parcel other than from Highland Avenue. Any access to the land parcel from Appleby Road, Madeline Avenue, Pyburn Avenue, Ravenna Avenue, or Sophia Road is strictly .prohibited. 27. No closure of the median way on Highland Avenue, at tie entrance of Ravenna Avenue, shall take place. r 28. The developer shall relinquish his foundation and building permits which currently exist for commercial uses on the parcel. 29• All water, sewer and drainage improvements on the site shall be subject to the review and approval of the City Planner and the Director of Public Services. 30. An assessment of impacts of the proposed project on existing infrastructure services, including water, sewer and drainage, shall be made by the City Planner and the Director of Public Services. Following such assessment, the City Planner and the Director of Public Services shall request any necessary improve- ments be implemented by the developer at his cost. Particular concern shall be paid to the potential need to upgrade the existing wastewater pump station on Ravenna Avenue, which, if improvements are necessary, shall be implemented by and at the cost of the developer. 31 . All issues and concerns regarding drainage and wetlands shall be reviewed and approved by the Conservation Commission. , 32. The developer shall contribute funds required by the State Department of Public Works for drainage improvements planned in the vicinity of Rich's Department Store to eliminate drainage problems in this geographical area. 33. A written statement of satisfaction of all such conditions shall be provided by the City Planner to the Building Inspector prior to the issuance of a building permit. KEVIN T. DALY s� .,,.y.":�.I'J� x LEONARD F. FEMINO ASSISTANT CITY SOLICITOR - t _,��-:Y�.:? ASSISTANT CITY SOLICITOR 93 WASHINGTON STREET 93 WASHINGTON STREET AND CITY OF SALEM - MASSACHUSETTS AND ONE CHURCH STREET ONE SCHOOL STREET MICHAEL E. O'B RIEN SALEM. MA 01970 BEVERLY. MA 01915 745-4311 CITY SOLICITOR 745-4311 745-0500 93 WASHINGTON STREET 921-1990 AND PLEASE REPLY TO ONE CHURCH STREET 81 WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET SALEM, MA 01970 745-4311 744-3363 PLEASE REPLY TO 81 WASHINGTON STREET December 7, 1988 03n O o =i c-� y' James M. Fleming, Chairman jo _, oz Board of Appeal ? o City of Salem T� — One Salem Green r-:;: v' Salem, Massachusetts 01970 n r' o o n rn -TT y. Yom. Re: Salem Highland Development Corp. un, as N vs Board of Appeal, et al Essex Superior Court #87-2852 Dear Mr. Fleming: Enclosed for your records please find copy of decision in the above entitled matter which is self-explanatory. Vtruly yours, e , Michael E. O'Brien `�----- City Solicitor MEO/jp Enclosure noi1C ruR e`GUR COMMONWEALTH OF MASSACHUSETTS —� 1\' Essex , ss . Superior Court C.A . No . 37-2852 Salem Highland Development Corp. , ) Plaintiff ) Motion For Relief V . ) From Judgment Under Mass. R . Civ. P. 60 (b) (6) 1` City of Salem and Salem Board of ) Appeals , ) De;eadants (/ The Defendant , City of Salem, moves under T4ass. R . Civ , P. I� 60 ( b) (6') that the agreed Entry of Judgment entered in this k� case un July 14 , 1938 be vacated and the case be assigned for y� trial . The judgment was entered less than one year from the 1 date of this motion . Iii support thereof , the defendant , City of Salem , state that the judgment is invalid as it : ( 1 ) Was entered into by the City Solicitor acting >rit.Lout - A" the necessary authority to settle this case on behalf. of the City of Salem in violatiur. of the Code of M Ordiaaaces ui the City of Salem, Art . V1 s. 2-131 ; and (2) CoastiCutes an unauthorized alienation of City owned land in violation of G .L.c. 40 s.3, and the Code of Ordinances of the City of Salem, Art . II7 s . 2-129 and Article XV Division 5 s.2-403 et seq . Wherefore , defendant, City of Salem, requests that the judgment be vacated and the case be scheduled for trial . Affidavits and a memorandum in support of this motion are attached . Fqx, the Defendant City of Salem tie b Jo ph Dalton g g Al rt Coulon 5 Broadway , Saugus , MA 01906 (617) 231-0956 Certificate of. ,Service L✓ �� October 26, 1938 �• F, 7 , Joseph F. Dalton , counsel for the defendant , City of Salem, certii( that we served the above on the plaintiff this S��lgt}l I S l}Y •ering in hand , a copy of same to counsel for the plafdhTrf William H . Sheehan , I 30 Main St t Peabody , A;A f%115, v1Q 80° fi0 Lit I J s p Dalt-6n S1,g3dd� �0 Q1I�i0fl JOSEPH F. COLLINS 6 LEONARD F. FEMINO ASSISTANT CITY SOLICITOR �d — J� ASSISTANT CITU SOLICITOR 93 WASHINGTON STREET 93 WASHINGTON STREET AND CITY OF SALEM - MASSACHUSETTS AND 22 SO. MAIN STREET MICHAEL E. O'BRIEN ONE SCHOOL STREET TOPSFIELD. MA 01983 BEVERLY. MA 01915 745-4311 CITY SOLICITOR 745-4311 867-6401 93 WASHINANDTON STREET 921-1990 PLEASE REPLY TO 22 50. MAIN STREET 81 WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET SALEM. MA 01970 745-4311 744-3363 PLEASE REPLY TO BI WASHINGTON STREET November 6 , 1989 -C A James M. Fleming, Chairman ,o 0 Board of Appeal City of Salem C7 _n One Salem Green Salem, Massachusetts 01970 Re: Salem Highland Development Corp. vs City of Salem, et. al. Appeals Court #89-P-144 Dear Mr. Fleming: Enclosed please find Memorandum and Order under Rule 1 : 28 of the Massachusetts Rules of Appellate Procedure in the above matter which is self-explanatory. If you have any questions regarding the same, please do not hesitate to contact me. Very truly yours, ichael E. O'Brien City Solicitor MEO/jp Enclosure COMMONWEALTH OF MASSACHUSETTS. APPEALS COURT FOR THE COMMONWEALTH, AT Boerox, October 30 , 19 89 . IN THE CASE OF SALEM HIGHLAND DEVELOPMENT CORP . va. CITY OF SALEM 5 another pending in the SUPERIOR Court for the County of ESSEX ORDERED, that the following entry be made in the docket; viz.,— _tV A � r The order denying relief from judgment is reversed. C., o i The judgment is vacated . n n. CP =o a rn r cn v � N i BY THE COURT, CLEFS. October 30, 1989 . i OVER COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 89-P-144 SALEM HIGHLAND DEVELOPMENT CORP. VS . CITY OF SALEM & another . MEMORANDUM AND ORDER UNDER RULE 1 : 28 Mike Stasinos is the president and treasurer of the plaintiff development corporation. (A. 19 ) In March, 1986, Stasinos filed an application with the Salem Board of Appeal ( "board" ) for a variance to permit construction of 163 residential condominium units on land owned by Stasinos . On May 27, 1986 , the board denied Stasinos ' application; Stasinos appealed to the Superior Court . G. L. c. 40A, S 17. On August 27 , 1986 , an amended consent judgment entered by which the board granted Stasinos a variance to construct 140 condominium units in exchange for Stasinos ' agreement to "grant to the City of Salem a parcel of land totalling 3 . 95 acres . . . for soccer fields, " and to comply with several other conditions . (A. 12-16, 18) The land was duly deeded to Salem and the deed recorded. (A. 36-37 ) In February, 1987, Salem's building inspector ordered work on the condominium project halted and refused to issue further building permits . (A. 21 ) On April 1 , 1987 , Stasinos filed a verified complaint for Salem Board of Appeal. I civil contempt against Salem and the board, seeking damages , attorney ' s fees and an order that the remaining building permits be issued. (A. 26-27 ) On December 28 , 1987 , the plaintiff filed this action against Salem and the board seeking damages for Salem' s alleged taking of 3 . 95 acres without compensation. (A. 35-38) On July 5 , 1988 , in settlement of both actions, attorneys for all parties agreed to amend the August 27 , 1986 , consent judgment to provide that Stasinos, rather than deed 3 . 95 acres to Salem, would limit use of the 3 . 95 acres to a 40 , 000 square foot two story retail and office building , and would pay the Salem City Trust Fund Commission $75 , 000 for "the use of Youth Soccer or other non-private athletic organizations" ; Salem agreed to issue a building permit . (A. 42-43 ) Pursuant to Mass .R.Civ.P. 70, 365 Mass . 836 ( 1974 ) , judgment entered on July 14 , 1988 , ordering "that the City of Salem is divested of title to Ithe ( 3 . 95 acres ) and title thereto is hereby vested in ( the plaintiff ] , a Massachusetts corporation with a usual ) place of business in Lynn, Massachusetts. " (A. 46) On August 12, 1988 , the plaintiff conveyed the 3 . 95 acre tract to The Olde Village Mall, Inc. (Supp. A. 91- 92 ) That same day, Eastern Savings Bank granted The Olde Village Mall , Inc. a $2 ,800,000 construction loan secured by the 3 . 95 acre tract (A. 67 ) ; to date, $751 , 109 has been advanced to The Olde Village Mall , Inc. On October 26 , 1988 , Salem moved for relief from the -2- judgment because Salem' s city solicitor failed to obtain the consents of various city officials prior to entering into the July 14 , 1988, consent judgment , and because the i city council did not approve transfer of the property to the plaintiff . (A. 84 ) ✓ The plaintiff responded with i minutes of a January 27 , 1988 , board meeting authorizing the city solicitor to settle its litigation with Stasinos and the plaintiff (A. 68-81) , and the affidavit of the city solicitor attesting that he twice notified the finance committee chairman of the July 14 , 1988 , consent juayment . (A. 82 ) A motion judge denied Salem' s moti;in i,;r relief from judgment ; Salem appeals . Massachusetts Rules of Civil Procedure 60 ( b) ( 6 ) , 365 Mass . 828 ( 1974 ) , allows a court, " (o )n motion and upon such terms as are just, " to relieve a party from final judgment for "reason( s ) justifying relief . " The ruling on a motion for relief from judgment is committed to the sound discretion of the trial judge. Berube v . McKesson Wine 6 Spirits Co. , 7 Mass. App. Ct . 426 , 429 ( 1979 ) . Rule 60 ( b) ( 6 ) motions for relief frog, judgment i a.,,ut De brought within a reasonable time after the entry ;:i judgment , see Parrell v. Keenan, 389 Mass . 809 , 815 ( 1983 ) , and must demonstrate extraordinary circumstanced justifying relief . Thibbitts v. Crowley, 405 Mass . 222 , i We treat the affidavits of city officials , dated September , 1988 , as before the judge on Salem' s October motion for -relief from judgment . The plaintiff has not argued otherwise. -3- 226 ( 1989 ) . Salem, relying on Bowers v. Board of Appeals of Marshfield, 16 Mass . App. Ct . 29 ( 1983) , argues that this case presents such extraordinary circumstances because the board exceeded its authority in agreeing to transfer title to the 3 .95 acre lot to the plaintiff . We agree. In Bowers v . Board of Appeals of Marshfield, Marsnfield' s public works department sought a site plan approval to build a wastewater treatment plant and sewage pumping station. The board of appeals granted the site plan approval , but abutters appealed. In an effort to settle the appeal quickly, town selectmen, in exchange for the abutters ' agreement to withdraw their appeal , intervened and agreed to entry of a consent judgment permanently enjoining use of lots next to the treatmenr. plant for parking . Four years after judgment entered , the town selectmen moved for relief from judgment under rule 60 (b) ( 4 ) ; the trial court denied relief . We reversed , holding that the selectmen 's agreement to a restriction that only the inhabitants of Marshfield could ) impose ( i .e. , perpetual encumbrance of town land auwunting to disposal or alienation) , constituted exceptional circumstances justifying relief- from judgment under rule 60 ( b) i6 ) . Id. at 32-35 . Here , as in Bowers , the Salem board of appeal , in an effort to resolve its litigation, agreed to transfer 3 .95 acres to the plaintiff . (A. 70-81 ) However , the power to alienate and -4- dispose of city real estate is vested in the Salem city council . G. L. cc. 39 , S 1 , and 40 , S 3 . Sancta Maria Hosp. v . Cambridge, 369 Mass . 586 , 592 ( 1976) . Affidavits of Salem' s city council president and the city , i clerk demonstrate that the city council did not approve the land transfer ; the plaintiff does not argue otherwise. Therefore, as the board could not agree to transfer the land to the plaintiff , Salem' s motion for relief from judgment should have been allowed . Bowers v . Board of Appeals of Marshfield, supra . The plaintiff ' s argument that the judgment vesting title to 3 .95 acres inl it was merely correcting an original consent judgment which was made in excess of the board ' s authority is unavailing . That original judgment is final ; the plaintiff has not sought relief from the judgment pu ,'suant to Mass . R.Civ . P. 60( b) , or by appeal . See l'aclik v . Dmytryck , 6 Mass . App. Ct . 915, 916 ( 1978 ) ; Hur.LLijatcn v . Zoning Board of Appeals of Hadley, 12 Mass . Fpp . Ct . 710 , 711 ( 1981 ) . Indeed, Stasinos sought to convey the land to Salem in order to obtain a zoning variance. Under these circumstances, the plaintiff may be estopped to deny the validity of that consent judgment . See Selectmen of Stockbridge v . Monument 14 Mass . App. Ct . 957 , 958-959 ( 1982 ) . Furthermore , a consent judgment may be vacated when that judgment was entered without the authority of a party. Parrell v . Keenan, 389 Mass. at 813-816 . See' -5- also Paresky v. Board of Zoning Appeal of Cambridge , 19 Mass . App. Ct . 612 , 613-615 ( 1985 ) . While " ' fi )n practice the assumed authority of attorneys of record to agree upon the amount of judgment to be entered , or to any other disposition of the suit , must be recognized Ly the court , and when entered of record such agreements ace binding upon the parties, . . . . when the court is informed that they have been made against the express prohibition of the client , and the parties can be put in scacu quo, . . . the court has the power to vacate any j,idgment founded upon thee:. '" Medfcrd Corbett , 302 Mass . 573 , 574 ( 1.939 ) , quoting from Dalton v . West End Street Ry. , 159 Mass . 221 , 223 ( 1893 ) . See also Precious v . O' Rourke , 270 Mass . 305, 307-308 ( 1930 ) . A Salem city ordinance provides that the city solicitor "may settle any ( law)suit against the city upon approval of the mayor , the president of the city council and the chairliian c r.ne finance committee. " (A. 64 ) It is undisputec tnat r;either the mayor nor Salem' s city council president approved the settlement agreement divesting the city of the land . (A. 62, 85) Moreover , the city solicitor ' s averment that he notified the finance committee chairman of the settlement agreement does not contradict the chairman' s sworn statement that he did not approve the -6- settlement . Therefore, the motion judge should have vacated the consent judgment as unauthorized." The order denying relief from 'ud ment is reversed . The judgment is vacated. By the Court ( Brown, Ferretta 6 Warner ,JJ . _) ,, Clerk Entered: October 30 , 1989 . I I ✓In light of our ruling on Salem' s first two justifications for relief from judgment, we find it unnecessary to rule on Salem' s contention that G. L. c. 44 , § 63A (conditioning sale of city owned real estate upon payment of an amount in lieu of taxes) requires relief . -7- f 0 4�a CITY OF SALEM - MASSACHUSETTS KEVIN T. DALY Legal Department LEONARD F. FEMINO City Solicitor 93 Washington Street Assistant City Solicitor 508-7454)500 Salem, Massachusetts 01970 508-921-1990 May 10, 1990 Board of Appeal -City of Salem One -Salem Green Salem, MA 01970 ATTENTION : Brenda M. Sumrall - RE: Salem Highland_Development_Corp__v._City_of_Salem, et al . Dear Brenda : Please find enclosed copies- of the notices of deposition which I have recently received relative to the above-named matter . Would you kindly forward copies of these notices to each deponent and ask. that they contact me to discuss this matter . Thank you foryourattention to this matter. Very truly yours , XKEV DALY CITY SOLICITOR - KTD/rmj Enclosures 3q� (Ih1ML1 JOSEPH F. COLLINS 3 d LEONARD F. FEMINO ASSISTANT CITY SOLICITOR 'r — J ASSISTANT CITY SOLICITOR m�.wR'' 93 WASHINGTON STREET 93 WASHINGTON STREET AND CITY OF SALEM MASSACHUSETTS AND 22 SO. MAIN STREET MICHAEL E. O'BRIEN ONE SCHOOL STREET TOPSFIELD, MA 01983 BEVERLY, MA 01915 745-4311 CITY SOLICITOR 745-4311 93 WASHINGTON STREET 887-6401 AND 921-1990 PLEASE REPLY TO 22 SO. MAIN STREET 81 WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET SALEM, MA 01970 745-4311 744-3363 PLEASE REPLY TO 81 WASHINGTON STREET November 6, 1989 n 07 'T 0 James M. Fleming, Chairman v Cm a � ? Board of Appeal o City of Salem _ CIO One Salem Green D CO Salem, Massachusetts 01970 y y Re: Salem Highland Development Corp. vs co City of Salem, et.- al. Appeals Court #89-P-144 Dear Mr. Fleming: Enclosed please find Memorandum and Order under Rule 1 : 28 of the Massachusetts Rules of Appellate Procedure in the above matter which is self-explanatory. If you have any questions regarding the same, please do not hesitate to contact me. Very truly, yours, ichael E. O'Brien City Solicitor MEO/jp Enclosure COMMONWEALTH OF MASSACHUSETTS. APPEALS COURT FOR THE COMMONWEALTH, AT BosTox, October 30 , 19 89 . IN THE CASE OF SALEM HIGHLAND DEVELOPMENT CORP . va. CITY OF SALEM & another pending in the SUPERIOR Court for the County of ESSEX ORDERED, that the following entry be made in the docket; viz.,— fl The order denying relief from judgment is reversjdd. y o The judgment is vacated . o m CP v co >o ' LP 3 v' v N I BY THE COURT, CLEFS. October 30, 1989 . OVER COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 89-P-144 SALEM HIGHLAND DEVELOPMENT CORP. VS. CITY OF SALEM 6 another . MEMORANDUM AND ORDER UNDER RULE 1 : 28 Mike Stasinos is the president and treasurer of the plaintiff development corporation. (A. 19) In March, 1986 , Stasinos filed an application with the Salem Board of Appeal ( "board" ) for a variance to permit construction of 163 residential condominium units on land owned by Stasinos . On May 27, 1986, the board denied Stasinos ' application; Stasinos appealed to the Superior Court . G. L. c. 40A. S 17. On August 27 , 1986 , an amended consent judgment entered by which the board granted Stasinos a variance to construct 140 condominium units in exchange for Stasinos ' agreement to "grant to the City of Salem a parcel of land totalling 3 . 95 acres for soccer fields, " and to comply with several other conditions . (A. 12-16, 18) The land was duly deeded to Salem and the deed recorded. (A. 36-37 ) In February, 1987, Salem' s building inspector ordered work on the condominium project halted and refused to issue further building permits. (A. 21 ) On April 1 , 1987, Stasinos filed a verified complaint for Salem Board of Appeal . civil contempt against Salem and the board, seeking damages, attorney' s fees and an order that the remaining building permits be issued. (A. 26-27 ) On December 28, 1987 , the plaintiff filed this action against Salem and the board seeking damages for Salem' s alleged taking of 3 . 95 acres without compensation. (A. 35-38) On July 5, 1988 , in settlement of both actions, attorneys for all parties agreed to amend the August 27 , 1986, consent judgment to provide that Stasinos, rather than deed 3 . 95 acres to Salem, would limit use of the 3 . 95 acres to a 40 , 000 square foot two story retail and office building , and would pay the Salem City Trust Fund Commission $75 , 000 for "the use of Youth Soccer or other non-private athletic organizations" ; Salem agreed to issue a building permit . (A. 42-43) Pursuant to Mass .R.Civ.P. 70, 365 Mass . 836 ( 1974 ) , judgment entered on July 14., 1988 , ordering "that the City of Salem is divested of title to Ithe [ 3 . 95 acres ) and title thereto is hereby vested in [ the plaintiff ] , a Massachusetts corporation with a usual ) place of business in Lynn, Massachusetts . " (A. 46) On August 12 , 1988, the- plaintiff conveyed the. 3 . 95 acre tract to The Olde Village Mall, Inc. (Supp. A. 91- 92 ) That same day, Eastern Savings Bank granted The Olde Village Mall , Inc. a $2 ,800, 000 construction loan secured by the 3 . 95 acre tract (A. 67) ; to date, $751 , 109 has been advanced to The Olde Village Mall , Inc. On October 26 , 1988, Salem moved for relief from the -2- L judgment because Salem' s city solicitor failed to obtain the consents of various city officials prior to entering into the July 14 , 1988 , consent judgment , and because thei city council did not approve transfer of the property to the plaintiff . (A. 84 ) ✓ The plaintiff responded with minutes of a January 27 , 1988 , board meeting authorizing the city solicitor to settle its litigation with Stasinos and the plaintiff (A. 68-81) , and the affidavit of the city solicitor attesting that he twice notified the finance committee chairman of the July 14 , 1988 , consent judgment . (A. 82 ) A motion judge denied Salem' s motion r,;r relief from judgment ; Salem appeals . Massachusetts Rules of Civil Procedure 60 ( b) ( 6 ) , 365 Mass . 828 ( 1974 ) , allows a court, " (o)n motion and upon such terms as are just , " to relieve a party from final judgment for "reason(s] justifying relief . " The ruling on a motion for relief from judgment is committed to the sound discretion of the trial judge. Berube v . McKesson Wine & Spirits Co. , 7 Mass . App. Ct . 426 , 429 ( 1979 ) . Rule 60 ( b) ( 6 ) motions for relief from judgment i uc brought within a reasonable time after the enu"y cr judgment, see Parrell v. Keenan, 389 Mass . 809 , 815 ( 1983 ) , and must demonstrate extraordinary circumstanced justifying relief . Thibbitts v. Crowley, 405 Mass . 222 , 2 We treat the affidavits of city officials , dated September , 1988, as before the judge on Salem' s October motion for -relief from judgment . The plaintiff has not argued otherwise. -3- 226 ( 1989) . Salem, relying on Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct . 29 ( 1983) , argues that this case presents such extraordinary circumstances because the board exceeded its authority in agreeing to transfer title to the 3 .95 acre lot to the plaintiff . we agree . In Bowers v . Board of Appeals of Marshfield, Marshfield' s public works department sought a site plan approval to build a wastewater treatment plant and sewage pumping station. The board of appeals granted the site plan approval , but abutters appealed. In an effort to settle the appeal quickly, town selectmen, in exchange for the abutters ' agreement to withdraw their appeal , intervened and agreed to entry of a consent judgment permanently enjoining use of lots next to the treatmenr. plant for parking . Four years after judgment entered , the town selectmen moved for relief from judgment under rule 60(b) ( 4 ) ; the trial court denied relief . We reversed , holding that the selectmen ' s agreement to a restriction that only the inhabitants of Marshfield could impose ( i .e. , perpetual encumbrance of town land amounting to disposal or alienation) , constituted exceptional circwTstances justifying relief- from judgment under rule 60 ( b) ( 6 ) . Id . at 32-35 . Here, as in Bowers , the Salem board of appeal , in an effort to resolve its litigation, agreed to transfer 3.95 acres to the plaintiff . (A. 70-81 ) However , the power to alienate and - 4 I dispose of city real estate is vested in the Salem city council . G. L. cc. 39, S 1, and 40, S 3 . Sancta Maria Hosp. v. Cambridge, 369 Mass . 586 , 592 ( 1976) . Affidavits of Salem' s city council president and the city , i clerk demonstrate that the city council did not approve the land transfer ; the plaintiff does not argue otherwise. Therefore, as the board could not agree to transfer the land to the plaintiff , Salem' s motion for relief from judgment should have been allowed. Bowers v . Board of Appeals of Marshfield, supra . The plaintiff ' s argument that the judgment vesting title to 3 . 95 acres in it was merely correcting an original consent judgment which was made in excess of the board ' s authority is unavailing. That original judgment is final ; the plaintiff has not sought relief from the judgment pu,suant to Mass . R.Civ .P. 60( b) , or by appeal . See Paclik v . Dmytryck , 6 Mass . App. Ct . 915, 916 ( 1978 ) ; Huntington v . Zoning Board of Appeals of Hadley, 12 Mass . App . Ct . 710 , 711 ( 1981 ) . Indeed, Stasinos sought to convey the land to Salem in order to obtain a zoning variance. Under these circumstances , the plaintiff may be estopped to deny the validity of that consent judgment . See Selectmen of Stockbridge v. Monument IL. ; , Igo . , 14 Mass . App. Ct . 957 , 958-959 ( 1982 ) . Furthermore, a consent judgment may be vacated when that judgment was entered without the authority of a party. Parrell v. Keenan, 389 Mass . at 813=816 . See -5- also Paresky v . Board of Zoning Appeal of Cambridge, 19 Mass . App. Ct . 612 , 613-615 ( 1985 ) . While practice the assumed authority of attorneys of record to agree upon the amount of judgment to be entered , or to any other disposition of the suit , must be recognized ry the court , and when entered of record such agreements are binding upon the parties , . . .. . when the court is inrormed that they have been made against the express prohibition of the client, and the parties can be put in statu quo, . . . the court has the power to vacate any ju.igmant founded upon thea.. "' Medfcrd v. Corbett , 302 Maes . 573 , 574 ( 1.939 ) , quoting from Dalton v . West End Street Ry . , 159 Mass . 221 , 223 ( 1893 ) . See also Precicus v . O' Rourke, 270 Mass. 305, 307-308 ( 1930 ) . A Salem city ordinance provides that the city solicitor "may settle any ( law]suit against the city upon approval of the mayor , the president of the city council and the cl.air;nan .r the finance committee. " (A. 64 ) It is undisputed ' t;at neither the mayor nor Salem' s city council president approved the settlement agreement divesting the city of the land . (A. 62, 85) Moreover , the city solicitor ' s averment that he notified the finance committee chairman of the settlement agreement does not c�ntrardict the chairman ' s sworn statement that he did not approve the -6- settlement . Therefore, the motion judge should have vacated the consent judgment as unauthorized." The order denying relief from iudgment is reversed . The judgment is vacated. By the Court ( Brown , Perretta e Warner , JJ . ) , Clerk Entered: October 30 , 1989 . I ✓In light of our ruling on Salem' s first two justifications for relief from judgment, we find it unnecessary to rule on Salem' s contention that G. L. c. 44 , S 63A (conditioning sale of city owned real estate upon payment of an amount in lieu of taxes) requires relief . -7- com"r�w' r KEVIN T. DAw LEONARD F FEMINO ASSISTANT CITY SOLICITOR % „- ? ASSISTANT CITY SOLICITOR 93 WASHINGTON STREET 93 WASHINGTON STREET AND CITY OF SALEM - MASSACHUSETTS AND ONE CHURCH STREET ONE SCHOOL STREET MICHAEL E. O'BRIEN SALEM, MA 01970 BEVERLY, MA 01915 93 WASHINGTON CITY SOLICITORINGTON STREET 745-4311 745-0500 921-1990 AND PLEASE REPLY TO ONE CHURCH STREET 81 WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET SALEM, MA 01970 745-4311 744-3363 PLEASE REPLY TO 81 WASHINGTON STREET December 7 , 1988 fl o C� v�: James M. Fleming, Chairman Board of Appeal nm C>, City of Salem Cnm — "T!: i> One Salem Green m.e X7 Salem, Massachusetts 01970 s ow Re: Salem Highland Development Corp. uni CG N vs °f cn Board of Appeal, et al Essex Superior Court #87-2852 Dear Mr. Fleming: Enclosed for your records please find copy of decision in the above entitled matter which is self-explanatory. 0/fe truly yours, ael E. O'Brien City Solicitor MEO/jp Enclosure COPY FOR YOUR INFORMATION COMMONWEALTH OF MASSACHUSETTS \1\ Essex , ss . Superior Court C.A. No . 87-2852 Salem Highland Development Corp . , ) Plaintiff ) Motion For Relief C V . ) From Judgment Under Mass . R. Civ. P. 60 (b) (6) City of Salem and Salem Board of } Appeals, ) Defendants ) / The Defendant , . City of Salem, moves under Mass. R . Civ : P. 60 (b) (6) that the agreed Entry of Judgment entered in this �j case ou July 14 , 1938 be vacated and the case be assigned for G trial . The judgment was entered less than one year from the / 1 date of this motion . In support thereof , the defendant , City of Salem , states that the judgment is invalid as it : ( 1 ) Was entered into by the City Solicitor acting wit.l,out �1 the necessary authority to settle this case on behalf 6A of the City of Salem in violative: of the Code of Ordiaances of the City of Salem, Art . �`i s. 2-181 ; and r � (2) CoastiLutes an unauthorized alienation of City owned land .in violation of G.L.c. 40 s.3 , and the Code of Ordinances of the City of Salem, Art . II.I s. 2-129- and Article XV Division 5 s. 2-403 et seq. Wherefore , defendant, City of Salem, . tequests that the judgment be vacated and the case be scheduled for trial . Affidavits and a memorandum in support of this motion are attached . F the Defendant City of Salem y ' is A tie s J0 Aph 17. Daltnil �. l g Al-0rt . Conlon 5 roadway , Saugus , MA 01906 CC 11 �I P8 (617) 231-0956 ^ '- �p Certificate of .Service 1v . �•�. October 26, 1988 � F, i , Joseph F . Dalton , counsel for the defendant , City of Saiem , cert ' { tl.at we served the above on the plaintiff tfiis ,S§v��t �a,�} S � 1111 ,ering in hand , a copy of same to counsel for the pla4M1 f3�1,! William H . Sheehan , I 30 Main St t Peabody , TfA 98a na�fi l Dalt.un r � 1` f~ � i KEVIN T. DALY A .1-, �� _ LEONARD F. FEMINO ASSISTANT CITY SOLICITORY�. .... :? ASSISTANT CITY SOLICITOR 93 WASHINGTON STREET 93 WASHINGTON STREET AND CITY OF SALEM - MASSACHUSETTS AND ONE CHURCH STREET MICHAEL E. O'BRIEN ONE SCHOOL STREET SALEM, MA 01970 BEVERLY, MA 01915 745.4311 CITY SOLICITOR 93 WASHINGTON STREET 745.4311 745-0500 921.1990 AND PLEASE REPLY TO ONE CHURCH STREET 81 WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET SALEM, MA 01970 745-4311 744.3363 PLEASE REPLY TO BI WASHINGTON STREET December 7 , 1988 m C1 O O C� v James M. Fleming, Chairman _ o Board of Appeal o City of Salem --rn One Salem Green r �a Salem, Massachusetts 01970 n r' o O —ri rl Re: Salem Highland Development Corp. v', co N vs Board of Appeal , et al Essex Superior Court #87-2.852 Dear Mr. Fleming: Enclosed for your records please find copy of decision in the above entitled matter which is self-explanatory. Ve truly yours , Michael E. O'Brien City Solicitor MEO/jp Enclosure 1 \ COMMONWEALTH OF h1ASSAC IUSETTS Essex , ss . Superior Court C.A . No. 37-2852 Salem highland Development Corp . , ) Plaintiff ) Motion For Relief V . ) From Judgment Under Mass. R . Civ. P. 60 (b) (6) 1Y City of Salens and Salem Board of ) Appeals , ) De 'endarlts ) The Defendant , City of Salem, moves under Mass . R . .^.iv . P. I7 60 (b) (6') that the agreed Entry of Judgment entered in this k� case uit July 14 , 1938 be vacated and the case be assigned for y trial . The judgment was entered less than one year from the / 5 date of this motion . / In support thereof , the defendant , City of Salem , states that the judgment is invalid as it : ( 1 ) Wac entered into by the City Solicitor acting ult.Lout �1 U the necessary authority to settle this ces.e on b"half of the City of Salem in violatiui. of the Code of / Ordi;tances of the City of Salem , Art . Vi s. 2-1081 ; and Coastitutes an unauthorized alienation of City owned pftY"� land in violation of G.L.c. 40 s .3 , and the Code of Ordinances of the City of Salem, Art . IT.T s . 2-129 and Article XV Division 5 s.2-403 et seq. Wherefore , defendant , City of Salem, zeµuests that the judgment be vacated and the case be scheduled for trial . Affidavits and a memorandum in support of this motion are attached . F the Defendant City of Salem Lorne s 1 C.Y- Joph Dalton Q 9 S Al rtA.. Conlun 0• ��I'{(� 5 Broadway , Saugus , MA 01906 (617) 231-0956 Certificate of Service � b{•.T October 26, 1988 I , Joseph F . Dalton , counsel for Che defendant , City of Saieai , cert�' j LI,at we served the above on the plaintiff this 5�110w11�S �91�iiering in hand , a copy of same to counsel for the platia��rY' 1lilliam H. Sheehan , IkIN 30 Main St t Peabody , FIA J s p . Dalton s�g3aa�:�o.el��ofl COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 87-2852 SALEM HIGHLAND DEVELOPMENT CORPORATION, PLAINTIFF VS AFFIDAVIT OF JAMES M. FLEMING, CITY OF SALEM AND CHAIRMAN, BOARD SALEM BOARD OF APPEALS, OF APPEALS DEFENDANTS I , James M. Fleming, depose and state the following: 1. I am presently the duly appointed Chairman of the Board of Appeals of the City of Salem, Massachusetts. 2 . Attached hereto are the true and accurate minutes of the meeting in Executive Session of the Salem Board of Appeals held on January 27 , 1988 . Signed under the pains and penalties of perjury this 14th day of September, 1988 . 94Flemincf, ames M. Chairman Board of Appeals COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. Salem, Massachusetts September 14 , 1988 On this day the above named James M. Fleming, being duly sworn, personally appeared before me and stated that the above statement is true to the best of his knowledge and belief. Sill Palmacci, Notary Public My Commission Expires : Mar. 14 , 1991 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 87-2852 SALEM HIGHLAND DEVELOPMENT CORPORATION, PLAINTIFF VS AFFIDAVIT OF JAMES M. FLEMING, CITY OF SALEM AND CHAIRMAN, BOARD SALEM BOARD OF APPEALS, OF APPEALS DEFENDANTS I , James M. Fleming, depose and state the following: 1. I am presently the duly appointed Chairman of the Board of Appeals of the City of Salem, Massachusetts. 2 . Attached hereto are the true and accurate minutes of the meeting in Executive Session of the Salem Board of Appeals held on January 27, 1988 . Signed under the pains and penalties of perjury this 14th day of September, 1988 . ames M. Flemin , Chairman Board of Appeals l COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. Salem, Massachusetts September 14 , 1988 On this day the above named James M. Fleming, being duly sworn, personally appeared before me and stated that the above statement is true to the best of his knowledge and belief . Jill Palmacci, Notary Public My Commission Expires : Mar. 14 , 1991 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 87-2852 SALEM HIGHLAND DEVELOPMENT CORPORATION, PLAINTIFF VS AFFIDAVIT OF JAMES M. FLEMING, CITY OF SALEM AND CHAIRMAN, BOARD SALEM BOARD OF APPEALS, OF APPEALS DEFENDANTS I , James M. Fleming, depose and state the following: 1 . I am presently the duly appointed Chairman of the Board of Appeals of the City of Salem, Massachusetts . 2 . Attached hereto are the true and accurate minutes of the meeting in Executive Session of the Salem Board of Appeals held on January 27, 1988 . Signed under the pains and penalties of perjury this 14th day of September, 1988 . `% ames M. Flemin , Chairman Board of Appeals COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. Salem, Massachusetts September 14 , 1988 On this day the above named James M. Fleming, being duly sworn, personally appeared before me and stated that the above statement is true to the best of his knowledge and belief . Jill Palmacci , Notary Public My Commission Expires : Mar. 14 , 1991 I_ i COMMONWEALTH OF MASSACHUSETTS Essex, ss . Superior Court Department Essex County Division Civil Action No. 87-2852 SALEM HIGHLAND DEVELOPMENT CORP. , ) Plaintiff ) VS. ) CITY OF SALEM, ET AL, ) Defendants ) NOTICE OF DEPOSITION To: Kevin T. Daly, Esquire One Church Street Salem, MA 01970 Please take notice that on Friday, May 25, 1990, at 11: 00 a.m. , at the offices of Pearl, McNiff, Crean, Cook & Sheehan, 30 Main Street, Peabody, Massachusetts, pursuant to Mass . R. Civ. P. 30, William H. Sheehan III will take the deposition of Keeper of Records of Salem Board of Appeal, before a notary public or other officer authorized by law to administer oaths or take depositions . The deposition will continue from day to day until completed. You are invited to attend and cross-examine. The deponent is requested to bring with her: All minutes of all meetings concerning the land at 394 Highland Avenue from July 1, 1982, to the present. Respectfully submitted, Mike Stasinos, By his Attorney, A� z�_ William H. Sheehan II, BBO #457060 Pearl, McNiff, Crean, Cook & Sheehan 30 Main Street Peabody, Massachusetts 01960 Telephone: ( 508) 531-1710 Dated: May 3, 1990 cc : William Beaupre °N o �itp of 6atem, ;fflaggaCbU2;ettg Public Propertp Department g Nuitbing Department One ipalent Orem 745-9595 aCxt. 380 William H. Munroe Director of Public Property Inspector of Buildings Zoning Enforcement Officer June 7, 1990 TO WHOM IT MAY CONCERN: Please be advised that the terms and conditions of a Consent Judgement by and between Mike Stasinos and the Members of the City of Salem Zoning Board of Appeal (Superior Court Dept. Civil Action No. 86-1534) as it relates to the construction of One Hundred Forty (140) condominium residential units in the condominium called The Highland Condominium at Salem have been complied with and this office will continue to issue building permits for the construction of the remaining condominium units. Sincerely, William H. Munroe Inspector of Buildings City of Salem WHM:bms Citp of batem, Aaoncbuottz Public Propertp 0cpartment „g Nuilbing �Dtpartment (One Abalem green 745-9595 GCxt. 380 William H. Munroe Director of Public Property Inspector of Buildings Zoning Enforcement Officer June 7, 1990 TO WHOM IT MAY CONCERN: Please be advised that the terms and conditions of a Consent Judgement by and between Mike Stasinos and the Members of the City of Salem Zoning Board of Appeal (Superior Court Dept. Civil Action No. 86-1534) as it relates to the construction of One Hundred Forty (140) condominium residential units in the condominium called The Highland Condominium at Salem have been complied with and this office will continue to issue building permits for the construction of the remaining condominium units. Sincerely, William H. Munroe Inspector of Buildings City of Salem WHM:bms L��� �/' / CRAIG AND MACAULEY FEDERAL RESERVE PLAZA PROFESSIONAL CORPORATION 600 ATLANTIC AVENUE COUNSELLORS AT LAW BOSTON, MASSACHUSETTS 02210 TELEPHONE (617) 367-9500 TELECOPIER (617) 742-1788 May 29, 1990 CERTIFIED MAIL/RETURN RECEIPT REQUESTED City of Salem Salem Board of Appeals One Salem Green Salem, MA 01970 Re: Notice of Foreclosure Sale Mortgage granted by Salem Highland Development Corp. to EssexBank dated November 20, 1986, recorded at Essex County (Southern District) Registry of Deeds in Book 8637, Page 234, as affected by instrument dated May 19, 1987, recorded at said Registry of Deeds in Book 8972 Page 399 Gentlemen: Enclosed please find a copy of a notice of foreclosure sale, entitled "Mortgagee' s Sale of Real Estate" , relating to the mortgage noted above. Very truly /yours, Donald W. Suchma DWS:jsw:2702H Enclosure cs C— m n w7 C» J wLL v �J MORTGAGEE'S SALE OF REAL ESTATE By virtue and in execution of the Power of Sale contained in a certain mortgage (the "Mortgage") given by Salem Highland Development Corp. to EssexBank dated November 20, 1986, recorded with the Essex County (Southern District) Registry of Deeds in Book 8637, Page 234 , as affected by instrument dated May 19 , 1987, recorded at said Registry of Deeds in Book 8972, Page 399, of which Mortgage the undersigned is the present holder, for breach of the conditions of the Mortgage and for the purpose of foreclosing the same, there will be sold at Public Auction at 2 : 00 o 'clock p.m. on the 13th day of June, 1990, at 394 Highland Avenue, Salem, Massachusetts, a portion of the premises described in the Mortgage, being the portion described in paragraph B below. A. The premises described in the Mortgage are the following, To wit: " (a) The land with buildings and improvements thereon whether now existing or hereinafter constructed or located thereon, situated at 394 Highland Avenue, Salem, Massachusetts, comprising the parcel described on Exhibit A annexed hereto prior to the execution hereof and specifically incorporated by reference herein. " (b) All of the Borrower ' s [Salem Highland Development Corp. ' s] present and future property rights in the Condominium which may be established by the Borrower or any V -2- successor or assign of the Borrower with respect to the Mortgaged Premises or any portion thereof (hereinafter, the "Condominium") , including without limitation, the rights in and to condominium units hereafter created as a result of the recordation of a Master Deed (as defined in Section 3-1 ,herein) to establish the Condominium or any amendment thereto; and " (c) All furnaces, ranges, heaters, plumbing goods , gas and electric fixtures, screens, screen doors, mantels, shades , storm doors and windows, awnings, oil burners and tanks or other equipment, gas or electric refrigerators and refrigerating systems, ventilating and air conditioning apparatus and equipment, door bell and alarm systems, sprinkler and fire extinguishing systems, portable or sectional buildings, and all other fixtures of whatever kind or nature . contained in the Mortgaged Premises or now on or belonging to the Mortgaged Premises, and any and all similar fixtures hereinafter installed in or about the Mortgaged Premises in any manner which renders such articles usable in connection therewith, so far as the same are, or can by agreement of the parties be made, a part of the realty. " i i -3- Exhibit A to the Mortgage reads as follows : "EXHIBIT A "Description of Mortgaged Premises" "Two certain parcels of land, with the buildings thereon situated at 394 Highland Avenue, Salem, Essex County, Massachusetts , bounded and described as follows: "PARCEL I "Beginning at a point eight hundred (800) feet from the Southeast corner of a parcel of land shown as Parcel #1 upon a "Plan of Portion of the Fay Estate" , dated October 23, 1928, drawn by Raymond C. Allen C.E. , Manchester, Massachusetts, being recorded with Essex South District Registry of Deeds, and running in a NORTHWESTERLY direction and parallel to a stone wall shown on said plan, said stone wall being at the northeast end of said Parcel #1 to another stone wall being at the northwest end of said parcel; thence turning and running along this stone wall to the NORTHERLY corner of said Parcel #1; thence turning and running in a SOUTHEASTERLY direction along the stone wall as shown on said plan for a distance of approximately eight hundred forty-seven (847) feet; thence turning and running in a SOUTHWESTERLY direction along land now or formerly of Emanuel Amanti , two hundred ninety-eight and 30/100 (298 . 30) feet; thence turning and running in a SOUTHEASTERLY direction along land now or formerly of the said Emanuel Amanti , five hundred (500) feet; thence turning and running in a SOUTHWESTERLY direction along Highland Avenue five hundred (500) feet to the point of beginning . "Said parcel containing approximately twenty-three acres of land all as set forth in a plan of land entitled "Land of Lions Real Estate Trust" , dated May, 1951, and recorded with said Registry in Book 3620, Page 320. "Parcel II "A parcel of land contiguous with Parcel I herein bounded: f -4- SOUTHEASTERLY SOUTHEASTERLY by Highland Avenue, about 90 feet; SOUTHWESTERLY by other land of the grantor, 1580 feet, more or less NORTHWESTERLY by a stone wall, about 90 feet NORTHEASTERLY by other land of Nicholas P. Fiore, 1580 feet, more or less; "being a strip of land ninety (90) feet wide extending from Highland Avenue to the rear of the land now or formerly of Camp Lion of Lynn, Mass . , Inc. , where it abuts other land of Nicholas P. Fiore on Highland Avenue, Salem, Mass . "Together with a right of way referenced in a deed recorded in the Essex South District Registry of Deeds in Book 5503, Page 121. "Excepting from the above-described premises so much as may have been taken by the Commonwealth of Massachusetts by instrument of taking dated January 8, 1986, and recorded with the Essex South District Registry of Deeds in Book 8100, Page 298 . "For title, see deed of Nicholas P. Fiore dated July 26, 1985, and recorded with said Deeds in Book 7846, Page 021. " Section 3-1 of the Mortgage reads in relevant part as follows : 3-1 . The Borrower hereby grants, assigns and transfers to the Lender [EssexBank, later known as Bank of New England-Essex, the successor-in-interest to which is Bank of New England, N.A..] all of the Borrower ' s [Salem Highland Development Corp. ' s] right, title and interest arising under any Master Deed which may be recorded by the Borrower or any successor or assign of the Borrower relative to the Mortgaged Premises or any portion thereof (hereinafter, the "Master Deed") , pursuant to which Master Deed the Mortgaged Premises or a portion thereof shall be submitted to the provisions of Chapter 183A, including, without limitation, the right to develop and create additional phases of the Condominium, to construct and complete construction of the buildings on the Mortgaged Premises, and to amend the Master Deed to provide for the establishment of the phases (hereinafter, the "Assigned Rights") . .A, a 4 f -5- By instrument (the "Amendment/Subordination" ) dated May 19 , 1987, recorded at the Essex (Southern District) Registry of Deeds in Book 8972, Page 399 , the Mor tgage. was amended and subordinated to a condominium (the "Condominium") entitled "The Highland Condominium at Salem" , created by Master Deed (the "Master Deed" ) dated May 11, 1987, recorded at said Registry of Deeds in Book 8953 , Page 1. The Amendment/Subordination provides in relevant part as follows : 1. Mortgagee [EssexBank, later known as Bank of New England-Essex, the successor-in-interest to which is Bank of New England, N.A. ] consents to said Master Deed of The Highland Condominium at Salem and agrees that- the lien and interests of Mortgagee under the Mortgage shall henceforth affect and apply to the Units of said Condominium, together with the undivided interest appurtenant thereto in the common areas and facilities of said Condominium and together with the rights and easements appurtenant thereto, all as set forth in said Master Deed, and agrees that in the event of foreclosure of the Mortgage, the mortgaged premises shall constitute and shall be conveyed as Units of said Condominium, together with the appurtenances and rights and easements aforesaid, subject to the provisions of said Master Deed and of the By-Laws of The Highland Condominium at Salem Trust to be recorded with said Master Deed, and agrees that the lien of the Mortgage shall be subject to the terms of said Master Deed. 4 . HIGHLAND [Salem Highland Development Corp. ] hereby agrees that in the event of foreclosure of the Mortgage, or the taking of possession of the premises for purposes of foreclosure, then Mortgagee shall have and may exercise all of the rights, powers and privileges of HIGHLAND as Declarant under and pursuant to said Master Deed, including without limitation the right to amend said Master Deed to include further phases or parts of the Condominium pursuant to provisions of said Master Deed; and _6_ to that end, HIGHLAND hereby irrevocably constitutes and appoints Mortgagee as its true and lawful agent and attorney to exercise all such rights in such event . The premises shown as Lot A and Lot B on a plan entitled "Plan of Land in Salem, Massachusetts Prepared for Salem Highland Avenue Development Corporation" dated August 25, 1986, drawn by Essex Survey Service, Inc. , recorded at the Essex (Southern District) Registry of Deeds in Plan Book 219, Plan 36, and the units in the Condominium other than the Condominium Units identified in paragraph B below, have been released from the Mortgage. B. The portion of the mortgaged premises to be sold consists of the following units (the "Condominium Units") of the Condominium together with the respective undivided interests appurtenant thereto in the common areas and facilities of the Condominium and the rights and easements appurtenant thereto, all as set forth in the Master Deed, and together also with all the rights, powers and privileges of Salem Highland Development Corp. as Declarant under and pursuant to the Master Deed, all of which will be sold collectively rather than separately: Unit Unit Unit Unit 906 1906 1502 1604 1805 2001 1503 1605 1901 2002 1505 1702 1902 2003 1601 1802 1903 2004 1602 1803 1904 2005 1603 1804 1905 2006 The portion of the mortgaged premises to be sold will be sold (i) subject to and with the benefit of all restrictions, easements, improvements, outstanding tax titles, municipal or other public taxes, assessments, liens or claims in the nature of liens, and existing encumbrances of record created prior to the Mortgage or to which the Mortgage has been subordinated of record, and (ii) subject to persons in possession, and the rights of an tenants or occupants, of said portion of the 9 Y P mortgaged premises or any part thereof. For authorization to foreclose, see judgment of the Land Court in Case No . 135640 . Terms of Sale: A deposit of One Hundred Thousand Dollars ($100, 000) will be required to be paid in cash or by certified or bank check by the purchaser at the time and place of sale. The balance of the purchase price shall be required to be paid in cash or by certified or ' bank check within thirty (30) days at the offices of Craig and Macauley Professional Corporation, Federal Reserve Plaza, 600 Atlantic Avenue, Boston, Massachusetts 02210. Other terms to be announced at the sale. The undersigned holder of the Mortgage reserves the right to reject any and all bids for the portion of the mortgaged premises to be sold and to continue the foreclosure sale from i -8- ' time to time to such subsequent date or dates as such holder may deem necessary or desirable. BANK OF NEW ENGLAND, N.A. Present holder of said mortgage By its attorneys, CRAIG AND MACAULEY PROFESSIONAL CORPORATION By: L / L Donald W. Suchma Craig and Macauley Professional Corporation Federal Reserve Plaza 600 Atlantic Avenue Boston, Massachusetts 02210 (617) 367-9500 Dated: May 10, 1990 2678H CRAIG AND MACAULEY FEDERAL RESERVE PLAZA PROFES51ONAL CORPORATION 600 ATLANTIC AVENUE COUNSELLORS AT LAW BOSTON. MASSACHUSETTS 02210 TELEPHONE (617) 367-9500 TELECOPIER (617) 742-178 8 May 29 , 1990 CERTIFIED MAIL/RETURN RECEIPT REOUESTED City of Salem Salem Board of Appeals One Salem Green Salem, MA 01970 Re: Notice of Foreclosure Sale Mortgage granted by Salem Highland Development Corp. to EssexBank dated November 20, 1986, recorded at Essex County (Southern District) Registry of Deeds in Book 8637, Page 234, as affected by instrument dated May 19, 1987, recorded at said Registry of Deeds in Book 8972, Page 399 Gentlemen: Enclosed please find a copy of a notice of foreclosure sale, entitled "Mortgagee' s Sale of Real Estate" , relating to the mortgage noted above. Very truly yours, Donald W. Suchma DWS: jsw:2702H Enclosure _-v v MORTGAGEE'S SALE OF REAL ES= By virtue and in execution of the Power of Sale contained in a certain mortgage (the "Mortgage") given by Salem Highland Development Corp. to EssexBank dated November 20, 1986, recorded with the Essex County (Southern District) Registry of Deeds in Book 8637, Page 234 , as affected by instrument dated May 19 , 1987, recorded at said Registry of Deeds in Book 8972 , Page 399 , of •which Mortgage the undersigned is the present holder, for breach of the conditions of the Mortgage and for the purpose of foreclosing the same, there will be sold at Public Auction at 2 : 00 o 'clock p.m. on the 13th day of June, 1990, at 394 Highland Avenue, Salem, Massachusetts, a portion of the premises described in the Mortgage, being the portion described in paragraph B below. A. The premises described in the Mortgage are the following, To wit : " (a) The land with buildings and improvements thereon whether now existing or hereinafter constructed or located thereon, situated at 394 Highland Avenue, Salem, Massachusetts, comprising the parcel described on Exhibit A annexed hereto prior to the execution hereof and specifically incorporated by reference herein. " (b) All of the Borrower ' s [Salem Highland Development Corp. ' s] present and future property rights in the Condominium which may be established by the Borrower or any -2- successor or assign of the Borrower with respect to the Mortgaged Premises or any portion thereof (hereinafter, the "Condominium") , including without limitation, the rights in and to condominium units hereafter created as a result of the recordation of a Master Deed (as defined in Section 3-1 herein) to establish the Condominium or any amendment thereto; and " (c) All furnaces, ranges , heaters , plumbing goods, gas and electric fixtures, screens , screen doors, mantels, shades , storm doors and windows, awnings, oil burners and tanks or other equipment, gas or electric refrigerators and refrigerating systems, ventilating and air conditioning apparatus and equipment , door bell and alarm systems, sprinkler and fire extinguishing systems, portable or sectional buildings , and all other fixtures of whatever kind or nature contained in the Mortgaged Premises or now on or belonging to the Mortgaged Premises, and any and all similar fixtures hereinafter installed in or about the Mortgaged Premises in any manner which renders such articles usable in connection therewith, so far as the same are, or can by agreement of the parties be made, a part of the realty. " -3- Exhibit A to the Mortgage reads as follows : "EXHIBIT A "Description of Mortgaged Premises" "Two certain parcels of land, with the buildings thereon situated at 394 Highland Avenue, Salem, Essex County, Massachusetts , bounded and described as follows : "PARCEL I "Beginning at a point eight hundred (800) feet from the Southeast corner of a parcel of land shown as Parcel #1 upon a "Plan of Portion of the Fay Estate" , dated October 23, 1928, drawn by Raymond C. Allen C.E. , Manchester, Massachusetts, being recorded with Essex South District Registry of Deeds, and running in a NORTHWESTERLY direction and parallel to a stone wall shown on said plan, said stone wall being at the northeast end of said Parcel #1 to another stone wall being at the northwest end of said parcel ; thence turning and running along this stone wall to the NORTHERLY corner of said Parcel #1; thence turning and running in a SOUTHEASTERLY direction along the stone wall as shown on said plan for a distance of approximately eight hundred forty-seven (847) feet; thence turning and running in a SOUTHWESTERLY direction along land now or formerly of Emanuel Amanti , two hundred ninety-eight and 30/100 (298 .30) feet; thence turning and running in a SOUTHEASTERLY direction along land now or formerly of the said Emanuel Amanti , five hundred (500) feet; thence turning and running in a SOUTHWESTERLY direction along Highland Avenue five hundred (500) feet to the point of beginning. "Said parcel containing approximately twenty-three acres of land all as set forth in a plan of land entitled "Land of Lions Real Estate Trust" , dated May, 1951, and recorded with said Registry in Book 3620, Page 320. "Parcel II "A parcel of land contiguous with Parcel I herein bounded: -4- SOUTHEASTERLY by Highland Avenue, about 90 feet; SOUTHWESTERLY by other land of the grantor, 1580 feet, more or less NORTHWESTERLY by a stone wall , about 90 feet NORTHEASTERLY by other land of Nicholas P. Fiore, 1580 feet, more or less; "being a strip of land ninety (90) feet wide extending from Highland Avenue to the rear of the land now or formerly of Camp Lion of Lynn, Mass . , Inc. , where it abuts other land of Nicholas P. Fiore on Highland Avenue, Salem, Mass . "Together with a right of way referenced in a deed recorded in the Essex South District Registry of Deeds in Book 5503 , Page 121. "Excepting from the above-described premises so much as may have been taken by the Commonwealth of Massachusetts by instrument of taking dated January 8, 1986, and recorded with the Essex South District Registry of Deeds in Book 8100, Page 298 . "For title, see deed of Nicholas P. Fiore dated July 26, 1985, and recorded with said Deeds in Book 7846, Page 021. " Section 3-1 of the Mortgage reads in relevant part as follows : 3-1. The Borrower hereby grants, assigns and transfers to the Lender [EssexBank, later known as Bank of New England-Essex, the successor-in-interest to which is Bank of New England, N.A.] all of the Borrower ' s [Salem Highland Development Corp. ' s] right, title and interest arising under any Master Deed which may be recorded by the Borrower or any successor or assign of the Borrower relative to the Mortgaged Premises or any portion thereof (hereinafter, the "Master Deed" ) , pursuant to which Master Deed the Mortgaged Premises or a portion thereof shall be submitted to the provisions of Chapter 183A, including, without limitation, the right to develop and create additional phases of the Condominium, to construct and complete construction of the buildings on the Mortgaged Premises, and to amend the Master Deed to provide for the establishment of the phases (hereinafter, the "Assigned Rights" ) . i -5- By instrument (the "Amendment/Subordination" ) dated May 19 , 1987, recorded at the Essex (Southern District) Registry of Deeds in Book 8972, Page 399 , the Mortgage was amended and subordinated to a condominium (the "Condominium" ) entitled "The Highland Condominium at Salem" , created by Master Deed (the "Master Deed" ) dated May 11, 1987, recorded at said Registry of Deeds in Book 8953 , Page 1 . The Amendment/Subordination provides in relevant part as follows : 1. Mortgagee [EssexBank, later known as Bank of New England-Essex, the successor-in-interest to which is Bank of New England, N.A. ] consents to said Master Deed of The Highland Condominium at Salem and agrees that the lien and interests of Mortgagee under the Mortgage shall henceforth affect and apply to the Units of said Condominium, together with the undivided interest appurtenant thereto in the common areas and facilities of said Condominium and together with the rights and easements appurtenant thereto, all as set forth in said Master Deed, and agrees that in the event of foreclosure of the Mortgage, the mortgaged premises shall constitute and shall be conveyed as Units of said Condominium, together with the appurtenances and rights and easements aforesaid, subject to the provisions of said Master Deed and of the By-Laws of The Highland Condominium at Salem Trust to be recorded with said Master Deed, and agrees that the lien of the Mortgage shall be subject to the terms of said Master Deed. 4 . HIGHLAND [Salem Highland Development Corp. ] hereby agrees that in the event of foreclosure of the Mortgage, or the taking of possession of the premises for purposes of foreclosure, then Mortgagee shall have and may exercise all of the rights , powers and privileges of HIGHLAND as Declarant under and pursuant to said Master Deed, including without limitation the right to amend said Master Deed to include further phases or parts of the Condominium pursuant to provisions of said Master Deed; and -6- to that end, HIGHLAND hereby irrevocably constitutes and appoints Mortgagee as its true and lawful agent and attorney to exercise all such rights in such event . The premises shown as Lot A and Lot B on a plan entitled "Plan of Land in Salem, Massachusetts Prepared for Salem Highland Avenue Development Corporation" dated August 25 , 1986, drawn by Essex Survey Service, Inc. , recorded at the Essex (Southern District) Registry of Deeds in Plan Book 219, Plan 36 , and the units in the Condominium other than the Condominium Units identified in paragraph B below, have been released from the Mortgage. B. The portion of the mortgaged premises to be sold consists of the following units (the "Condominium Units" ) of the Condominium together with the respective undivided interests appurtenant thereto in the common areas and facilities of the Condominium and the rights and easements appurtenant thereto, all as set forth in the Master Deed, and together also with all the rights, powers and privileges of Salem Highland Development Corp. as Declarant under and pursuant to the Master Deed, all of which will be sold collectively rather than separately: Unit Unit Unit Unit 906 1906 1502 1604 1805 2001 1503 1605 1901 2002 1505 1702 1902 2003 1601 1802 1903 2004 1602 1803 1904 2005 1603 1804 1905 2006 The portion of the mortgaged premises to be sold will be sold (i) subject to and with the benefit of all restrictions, easements, improvements, outstanding tax titles , municipal or other public taxes , assessments , liens or claims in the nature of. liens , and existing encumbrances of record created prior to the Mortgage or to which the Mortgage has been subordinated of record, and (ii) subject to persons in possession, and the rights of any tenants or occupants, of said portion of the mortgaged premises or any part thereof . For authorization to foreclose, see judgment of the Land Court in Case No. 135640 . Terms of Sale: A deposit of One Hundred Thousand Dollars ($100, 000) will be required to be paid in cash or by certified or bank check by the purchaser at the time and place of sale. The balance of the purchase price shall be required to be paid in cash or by certified or bank check within thirty (30) days at the offices of Craig and Macauley Professional Corporation, Federal Reserve Plaza, 600 Atlantic Avenue, Boston, Massachusetts 02210. Other terms to be announced at the sale. The undersigned holder of the Mortgage reserves the right to reject any and all bids for the portion of the mortgaged premises to be sold and to continue the foreclosure sale from time to time to such subsequent date or dates as such holder may deem necessary or desirable. BANK OF NEW ENGLAND, N.A. Present holder of said mortgage By its attorneys, CRAIG AND MACAULEY PROFESSIONAL CORPORATION By: IL Donald W. Suchma Craig and Macauley Professional Corporation Federal Reserve Plaza 600 Atlantic Avenue Boston, Massachusetts 02210 (617) 367-9500 Dated: May 10, 1990 2678H U nda CITY OF SALEM - MASSACHUSETTS KEVIN T. DALY Legal DepaRmenl LEONARD F. FEMINO city Solicitor 93 Washington Street Assistant City Solicitor 508-74505W Salem, Massachusetts 01970 508-921-1990 June 21, 1990 Essex Superior Court 34 Federal Street Salem, MA 01970 ATTN: Civil Docketing Clerk RE: PLAINTIFF: Mike Stasinos DEFENDANT: City of Salem, et al DOCKET NO. : 90-1374 Dear Sir or Madam: Relative to the above-named matter please find enclosed for filing and docketing the Defendants Answer and Counterclaim. Thank you for your attention. Very truly yours, Kevin T. Daly KTD/ask Enclosure cc: William H. Sheehan, Esquire f COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DEPARTMENT ESSEX COUNTY DIVISION CIVIL ACTION NO. 90-1374 I MIKE STASINOS, ) PLAINTIFF ) VS. ) ANSWER OF DEFENDANTS TO FIRST AMENDED COMPLAINT CITY OF SALEM, CITY OF SALEM ) AND COUNTERCLAIM BOARD OF APPEALS, JAMES B. ) HACKER, RICHARD A. BENCAL, JAMES M. FLEMING, EDWARD ) LUZINSKI, PETER STROUT, ARTHUR ) LABRECQUE AND PETER A. DORE ) AS THEY ARE MEMBERS OF THE ) CITY OF SALEM BOARD OF APPEAL, ) DEFENDANTS ) Now come the defendants and answer the plaintiff's first amended complaint as follows: 1. Defendants admit paragraph (1) of plaintiff's complaint. 2 . Defendants admit paragraph (2) of plaintiff's complaint. 3 . Defendants admit paragraph (3) of plaintiff's complaint. 4 . Defendants deny paragraph (4) of plaintiff's complaint. 5. Defendants admit paragraph (5) of plaintiff's complaint. 6. Defendants deny paragraph (6) of plaintiff's complaint. 20. Defendants deny paragraph 20 of plaintiff's complaint. 21. Defendants repeat answers contained in paragraphs 1 through 15, 18, and 20. herein. 22 . Defendants deny paragraph 22 of plaintiff's complaint. AFFIRMATIVE DEFENSES 23 . Plaintiff has failed to state a claim upon which relief can be granted. 24 . Plaintiff is barred from this action by the applicable statute of limitations. F 25. Plaintiff has caused a structure to be erected upon said land of the defendant, City of Salem and therefore has damaged the defendant in the amount of $75,000.00. 26. Plaintiff has failed to perform his obligations pursuant to said consent agreement. 27. Plaintiff is barred from this action because of a pending of a prior action. COUNTERCLAIM 28. Plaintiff has failed to perform his obligations pursuant to paragraph 2 (b) of said consent agreement. 29. Plaintiff has caused said parcel of real estate to be damaged by causing to be erected thereon a structure. 30. As a result of plaintiff's actions the defendants have been damaged. WHEREFORE the defendants demand: 1. That plaintiff's complaint be dismissed as to all counts and judgement be entered for the defendants; 2 . That judgment be entered for the defendants upon their counterclaim and damages be established by this court; and 3 . That this court grant such other relief as it deems meet and just. Dated City of Salem and City of Salem Board of Appeals By their Attorney Kevin T. Daly City Solicitor One Church Street Salem, MA 01970 (508) 745-0500 CERTIFICATE OF SERVICE I, Kevin T. Daly, Attorney for the Defendants, hereby certify that I served the foregoing Defendant's Answer and Counterclaim by depositing a copy hereof in the U.S. mail, postage pre-paid, addressed to: William H. Sheehan, III, Esquire, PEARL, MCNIFF, CREAN, COOK & SHEEHAN, 30 Main Street, Peabody, MA 01960-5552. Dated: Kevin T. Daly c;_ty Solicitor. One Church Street Salem, MA 01970 (508) 745-0500 The Highland Condominium at Salem 394 Highland Avenue, Salem, MA 26 Units; Slabs for 28 Additional Units Mortgagee' s Foreclosure Sale Scheduled for June 13, 1990 Has Been Postponed to July 12, 1990 at 11:00 A.M. at Above Address For further information call John G. Snyder, Esq. , Craig and Macauley Professional Corporation, 600 Atlantic Avenue, Boston, MA 02210, Tel. (617) 367-9500 CRAIG AND MACAULEY FEDERAL RESERVE PLAZA PROFESSIONAL CORPORATION 600 ATLANTIC AVENUE COUNSELLORS AT LAW BOSTON, MASSACHUSETTS 02210 TELEPHONE (617) 367-9500 TELECOPIER (617) 742-176 B May 29 , 1990 CERTIFIED MAIL/RETURN RECEIPT REQUESTED City of Salem Salem Board of Appeals One Salem Green Salem, MA 01970 Re: Notice of Foreclosure Sale Mortgage granted by Salem Highland Development Corp. to EssexBank dated November 20, 1986, recorded at Essex County (Southern District) Registry of Deeds in Book 8637, Page 234, as affected by instrument dated May 19, 1987, recorded at said Registry of Deeds in Book 8972 Page 399 Gentlemen: Enclosed please find a copy of a notice of foreclosure sale, entitled "Mortgagee' s Sale of Real Estate" , relating to the mortgage noted above. Very truly yours, /,C--Zo Donald W. Suchma DWS:jsw:2702H Enclosure c o MORTGAGEE'S SALE OF REAL ESTATE By virtue and in execution of the Power of Sale contained in a certain mortgage (the "Mortgage") given by Salem Highland Development Corp. to EssexBank dated November 20, 1986 , recorded with the Essex County (Southern District) Registry of Deeds in Book 8637, Page 234 , as affected by instrument dated May 19 , 1987, recorded at said Registry of Deeds in Book 8972 , Page 399, of which Mortgage the undersigned is the present holder , for breach of the conditions of the Mortgage and for the purpose of foreclosing the same, there will be sold at Public Auction at 2 : 00 o 'clock p.m. on the 13th day of June, 1990, at 394 Highland Avenue, Salem, Massachusetts , a portion of the premises described in the Mortgage, being the portion described in paragraph B below. A. The premises described in the Mortgage are the following, To wit : " (a) The land with buildings and improvements thereon whether now existing or hereinafter constructed or located thereon, situated at 394 Highland Avenue, Salem, Massachusetts, comprising the parcel described on Exhibit A annexed hereto prior to the execution hereof and specifically incorporated by reference herein. " (b) All of the Borrower ' s [Salem Highland Development Corp. ' s] present and future property rights in the Condominium which may be established by the Borrower or any -z- successor or assign of the Borrower with respect to the Mortgaged Premises or any portion thereof (hereinafter, the "Condominium" ) , including without limitation, the rights in and to condominium units hereafter created as a result of the recordation of a Master Deed (as defined in Section 3-1 herein) to establish the Condominium or any amendment thereto; and " (c) All furnaces, ranges , heaters , plumbing goods, gas and electric fixtures, screens, screen doors , mantels , shades , storm doors and windows , awnings, oil burners and tanks or other equipment , gas or electric refrigerators and refrigerating systems, ventilating and air conditioning apparatus and equipment , door bell and alarm systems , sprinkler and fire extinguishing systems , portable or sectional buildings, and all other fixtures of whatever kind or nature contained in the Mortgaged Premises or now on or belonging to the Mortgaged Premises, and any and all similar fixtures hereinafter installed in or about the Mortgaged Premises in any manner which renders such articles usable in connection therewith, so far as the same are, or can by agreement of the parties be made, a part of the realty. " -3- Exhibit A to the Mortgage reads as follows : "EXHIBIT A "Description of Mortgaged Premises" "Two certain parcels of land, with the buildings thereon situated at 394 Highland Avenue, Salem, Essex County, Massachusetts , bounded and described as follows: "PARCEL I "Beginning at a point eight hundred (800) feet from the Southeast corner of a parcel of land shown as Parcel #1 upon a "Plan of Portion of the Fay Estate" , dated October 23 , 1928, drawn by Raymond C. Allen C.E. , Manchester, Massachusetts , being recorded with Essex South District Registry of Deeds , and running in a NORTHWESTERLY direction and parallel to a stone wall shown on said plan, said stone wall being at the northeast end of said Parcel #1 to another stone wall being at the northwest end of said parcel ; thence turning and running along this stone wall to the NORTHERLY corner of said Parcel #1; thence turning and running in a SOUTHEASTERLY direction along the stone wall as shown on said plan for a distance of approximately eight hundred forty-seven (847) feet; thence turning and running in a SOUTHWESTERLY direction along land now or formerly of Emanuel Amanti , two hundred ninety-eight and 30/100 (298 . 30) feet; thence turning and running in a SOUTHEASTERLY direction along land now or formerly of the said Emanuel Amanti , five hundred (500) feet; thence turning and running in a SOUTHWESTERLY direction along Highland Avenue five hundred (500) feet to the point of beginning. "Said parcel containing approximately twenty-three acres of land all as set forth in a plan of land entitled "Land of Lions Real Estate Trust" , dated May, 1951, and recorded with said Registry in Book 3620, Page 320. "Parcel II "A parcel of land contiguous with Parcel I herein bounded: i -4- SOUTHEASTERLY by Highland Avenue, about 90 feet; SOUTHWESTERLY by other land of the grantor, 1580 feet, more or less NORTHWESTERLY by a stone wall , about 90 feet NORTHEASTERLY by other land of Nicholas P. Fiore, 1580 feet, more or less; "being a strip of land ninety (90) feet wide extending from Highland Avenue to the rear of the land now or formerly of Camp Lion of Lynn, Mass . , Inc. , where it abuts other land of Nicholas P. Fiore on Highland Avenue, Salem, Mass . "Together with a right of way referenced in a deed recorded in the Essex South District Registry of Deeds in Book 5503 , Page 121. "Excepting from the above-described premises so much as may have been taken by the Commonwealth of Massachusetts by instrument of taking dated January 8, 1986 , and recorded with the Essex South District Registry of Deeds in Book 8100, Page 298 . "For title, see deed of Nicholas P. Fiore dated July 26, 1985, and recorded with said Deeds in Book 7846, Page 021. " Section 3-1 of the Mortgage reads in relevant part as follows : 3-1. The Borrower hereby grants, assigns and transfers to the Lender [EssexBank, later known as Bank of New England-Essex, the successor-in-interest to which is Bank of New England, N.A. ] all of the Borrower ' s [Salem Highland Development Corp. ' s] right, title and interest arising under any Master Deed which may be recorded by the Borrower or any successor or assign of the Borrower relative to the Mortgaged Premises or any portion thereof (hereinafter, the "Master Deed") , pursuant to which Master Deed the Mortgaged Premises or a portion thereof shall be submitted to the provisions of Chapter 183A, including, without limitation, the right to develop and create additional phases of the Condominium, to construct and complete construction of the buildings on the Mortgaged Premises, and to amend the Master Deed to provide for the establishment of the phases (hereinafter, the "Assigned Rights") . -5- By instrument (the "Amendment/Subordination" ) dated May 19 , 1987, recorded at the Essex (Southern District) Registry of Deeds in Book 8972 , Page 399 , the Mortgage was amended and subordinated to a condominium (the "Condominium" ) entitled "The Highland Condominium at Salem" , created by Master Deed (the "Master Deed") dated May 11, 1987, recorded at said Registry of Deeds in Book 8953 , Page 1 . The Amendment/Subordination provides in relevant part as follows : 1. Mortgagee [EssexBank, later known as Bank of New England-Essex, the successor-in-interest to which is Bank of New England, N.A. ] consents to said Master Deed of The Highland Condominium at Salem and agrees that the lien and interests of Mortgagee under the Mortgage shall henceforth affect and apply to the Units of said Condominium, together with the undivided interest appurtenant thereto in the common areas and facilities of said Condominium and together with the rights and easements appurtenant thereto, all as set forth in said Master Deed, and agrees that in the event of foreclosure of the Mortgage, the mortgaged premises shall constitute and shall be conveyed as Units of said Condominium, together with the appurtenances and rights and easements aforesaid, subject to the provisions of said Master Deed and of the By-Laws of The Highland Condominium at Salem Trust to be recorded with said Master Deed, and agrees that the lien of the Mortgage shall be subject to the terms of said Master Deed. 4 . HIGHLAND [Salem Highland Development Corp. ] hereby agrees that in the event of foreclosure of the Mortgage, or the taking of possession of the premises for purposes of foreclosure, then Mortgagee shall have and may exercise all of the rights, powers and privileges of HIGHLAND as Declarant under and pursuant to said Master Deed, including without limitation the right to amend said Master Deed to include further phases or parts of the Condominium pursuant to provisions of said Master Deed; and -6- to that end, HIGHLAND hereby irrevocably constitutes and appoints Mortgagee as its true and lawful agent and attorney to exercise all such rights in such event. The premises shown as Lot A and Lot B on a plan entitled "Plan of Land in Salem, Massachusetts Prepared for Salem Highland Avenue Development Corporation" dated August 25 , 1986, drawn by Essex Survey Service, Inc. , recorded at the Essex (Southern District) Registry of Deeds in Plan Book 219 , Plan 36, and the units in the Condominium other than the Condominium Units identified in paragraph B below, have been released from the Mortgage. B. The portion of the mortgaged premises to be sold consists of the following units (the "Condominium Units" ) of the Condominium together with the respective undivided interests appurtenant thereto in the common areas and facilities of the Condominium and the rights and easements appurtenant thereto, all as set forth in the Master Deed, and together also with all the rights, powers and privileges of Salem Highland Development Corp. as Declarant under and pursuant to the Master Deed, all of which will be sold collectively rather than separately: Unit Unit Unit Unit 906 1906 1502 1604 1805 2001 1503 1605 1901 2002 1505 1702 1902 2003 1601 1802 1903 2004 1602 1803 1904 2005 1603 1804 1905 2006 i The portion of the mortgaged premises to be sold will be sold (i) subject to and with the benefit of all restrictions, easements, improvements, outstanding tax titles, municipal or other public taxes , assessments, liens or claims in the nature of liens, and existing encumbrances of record created prior to the Mortgage or to which the Mortgage has been subordinated of record, and (ii) subject to persons in possession, and the rights of any tenants or occupants, of said portion of the mortgaged premises or any part thereof . For authorization to foreclose, see judgment of the Land Court in Case No . 135640 . Terms of Sale: A deposit of One Hundred Thousand Dollars ($100, 000) will be required to be paid in cash or by certified or bank check by the purchaser at the time and place of sale. The balance of the purchase price shall be required to be paid in cash or by certified or bank check within thirty (30) days at the offices of Craig and Macauley Professional Corporation, Federal Reserve Plaza, 600 Atlantic Avenue, Boston, Massachusetts 02210. Other terms to be announced at the sale. The undersigned holder of the Mortgage reserves the right to reject any and all bids for the portion of the mortgaged premises to be sold and to continue the foreclosure sale from time to time to such subsequent date or dates as such holder may deem necessary or desirable. BANK OF NEW ENGLAND, N.A. Present holder of said mortgage By its attorneys, CRAIG AND MACAULEY PROFESSIONAL CORPORATION By: /�. (/ / /' '// ' Donald W. Suchma Craig and Macauley Professional Corporation Federal Reserve Plaza 600 Atlantic Avenue Boston, Massachusetts 02210 (617) 367-9500 Dated: May 10, 1990 2678H f CRAIG AND MACAULEY FEDERAL RESERVE PLAZA PROFESSIONAL CORPORATION 600 ATLANTIC AVENUE COUNSELLORS AT LAW BOSTON, MASSACHUSETTS 02210 TELEPHONE(617) 367-9500 TELECOPIER (617) 742-17 B B March 13, 1990 CERTIFIED MAIL/RETURN RECEIPT REQUESTED City of Salem Salem Board of Appeals One Salem Green Salem, MA 01970 Re: Notice of Foreclosure Sale Mortgage granted by Salem Highland Development Corp. to EssexBank dated November 20, 1986, recorded at Essex County (Southern District) Registry of Deeds in Book 8637, Page 234 , as affected by instrument dated May 19, 1987, recorded at said Registry of Deeds in Book 8972 Page 399 Gentlemen: Enclosed please find a copy of a notice of foreclosure sale, entitled "Mortgagee' s Sale of Real Estate" , relating to the mortgage noted above. Very truly yours, Donald W. Suchma DWS: jsw:2702H C') c Enclosure < a m u n o CSD � m Wiz: � � O MORTGAGEE'S SALE OF REAL ESTATE By virtue and in execution of the Power of Sale contained in a certain mortgage (the "Mortgage") given by Salem Highland Development Corp. to EssexBank dated November 20, 1986, recorded with the Essex County (Southern District) Registry of Deeds in Book 8637, Page 234, as affected by instrument dated May 19, 1987, recorded at said Registry of Deeds in Book 8972, Page 399, of which Mortgage the undersigned is the present holder, for breach of the conditions of the Mortgage and for the purpose of foreclosing the same, there will be sold at Public Auction at 2 : 00 o 'clock p.m. on the 29th day of March, 1990, at 394 Highland Avenue, Salem, Massachusetts, a portion of the premises described in- the Mortgage, being the portion described in paragraph B below. A. The premises described in the Mortgage are the following, To wit : "(a) The land with buildings and improvements thereon whether now existing or hereinafter constructed or located thereon, situated at 394 Highland Avenue, Salem, Massachusetts, comprising the parcel described on Exhibit A annexed hereto prior to the execution hereof and specifically incorporated by reference herein. " (b) All of the Borrower ' s [Salem Highland Development Corp. ' s] present and future property rights in the Condominium which may be established by the Borrower or any -2- successor or assign of the Borrower with respect to the Mortgaged Premises or any portion thereof (hereinafter, the "Condominium") , including without limitation, the rights in and to condominium units hereafter created as a result of the recordation of a Master Deed (as defined in Section 3-1 herein) to establish the Condominium or any amendment thereto; and " (c) All furnaces, ranges, heatarv, plumbing goods, gas and electric fixtures, screens, screen doors, mantels, shades, storm doors and windows, awnings, oil burners and tanks or other equipment, gas or electric refrigerators and refrigerating systems, ventilating and air conditioning apparatus and equipment, door bell and alarm systems, sprinkler and fire extinguishing systems, portable or sectional buildings, and all other fixtures of whatever kind or nature contained in the Mortgaged Premises or now on or belonging to the Mortgaged Premises, and any and all similar fixtures hereinafter installed in or about the Mortgaged Premises in any manner which renders such articles usable in connection therewith, so far as the same are, or can ,by agreement of the parties be made, a part of the realty. " -3- Exhibit A to the Mortgage reads as follows: "EXHIBIT A "Description of Mortgaged Premises" "Two certain parcels of land, with the buildings thereon situated at 394 Highland Avenue, Salem, Essex County, Massachusetts, bounded and described as follows: "PARCEL I "Beginning at a point eight hundred (800) Is-' from the Southeast corner of a parcel of land shown as Parcel #1 upon a "Plan of Portion of the Fay Estate" , dated October 23, 1928, drawn by Raymond C. Allen C.E. , Manchester, Massachusetts, being recorded with Essex South District Registry of Deeds, and running in a NORTHWESTERLY direction and parallel to a stone wall shown on said plan, said stone wall being at the northeast end of said Parcel #1 to another stone wall being at the northwest end of said parcel; thence turning and running along this stone wall to the NORTHERLY corner of said Parcel #1; thence turning and running in a SOUTHEASTERLY direction along the stone wall as shown on said plan for a distance of approximately eight hundred forty-seven (847) feet; thence turning and running in a SOUTHWESTERLY direction along land now or formerly of Emanuel Amanti, two hundred ninety-eight and 30/100 (298.30) feet; thence turning and running in a SOUTHEASTERLY direction along land now or formerly of the said Emanuel Amanti, five hundred (500) feet; thence turning and running in a SOUTHWESTERLY direction along Highland Avenue five hundred (500) feet to the point of beginning. "Said parcel containing approximately twenty-three acres of land all as set forth in a plan of land entitled "Land of Lions Real Estate Trust" , dated May, 1951, and recorded with said Registry in Book 3620, Page 320. "Parcel II "A parcel of land contiguous with Parcel I herein bounded: -4- SOUTHEASTERLY by Highland Avenue, about 90 feet; SOUTHWESTERLY by other land of the grantor, 1580 feet, more or less NORTHWESTERLY by a stone wall, about 90 feet NORTHEASTERLY by other land of Nicholas P. Fiore, 1580 feet, more or less; "being a strip of land ninety (90) feet wide extending from Highland Avenue to the rear of the land now or formerly of Camp Lion of Lynn, Mass . , Inc. , where it abuts other land of Nicholas P. Fiore on Highland Avenue, Salem, Mass . "Together with a right of way referenced in a deed recorded in the Essex South District Registry of Deeds in Book 5503, Page 121. "Excepting from the above-described premises so much as may have been taken by the Commonwealth of Massachusetts by instrument of taking dated January 8, 1986, and recorded with the Essex South District Registry of Deeds in Book 8100, Page 298 . "For title, see deed of Nicholas P. Fiore dated July 26, 1985, and recorded with said Deeds in Book 7846, Page 021. " Section 3-1 of the Mortgage reads in relevant part as follows: 3-1. The Borrower hereby grants, assigns and transfers to the Lender [EssexBank, later known as Bank of New England-Essex, the successor-in-interest to which is Bank of New England, N.A. ] all of the Borrower' s [Salem Highland Development Corp. ' s] right, title and interest arising under any Master Deed which may be recorded by the Borrower or any successor or assign of the Borrower relative to the Mortgaged Premises or any portion thereof (hereinafter, the "Master Deed") , pursuant to which Master Deed the Mortgaged Premises or a portion thereof shall be submitted to the provisions of Chapter 183A, including, without limitation, the right to develop and create additional phases of the Condominium, to construct and complete construction of the buildings on the Mortgaged Premises, and to amend the Master Deed to provide for the establishment of the phases (hereinafter; the "Assigned Rights") . -5- By instrument (the "Amendment/Subordination") dated May 19 , 1987, recorded at the Essex (Southern District) Registry of Deeds in Book 8972, Page 399, the Mortgage was amended and subordinated to a condominium (the "Condominium") entitled "The Highland Condominium at Salem" , created by Master Deed (the "Master Deed" ) dated May 11, 1987, recorded at said Registry of Leeds in Book 8953, Page 1. The Amendment/Subordination provides in relevant part as follows : 1. Mortgagee [EssexBank, later known as Bank of New England-Essex, the successor-in-interest to which is Bank of New England, N.A. ] consents to said Master Deed of The Highland Condominium at Salem and agrees that the lien and interests of Mortgagee under the Mortgage shall henceforth affect and apply to the Units of said Condominium, together with the undivided interest appurtenant thereto in the common areas and facilities of said Condominium and together with the rights and easements appurtenant thereto, all as set forth in said Master Deed, and agrees that in the event of foreclosure of the Mortgage, the mortgaged premises shall constitute and shall be conveyed as Units of said Condominium, together with the appurtenances and rights and easements aforesaid, subject to the provisions of said Master Deed and of the By-Laws of The Highland Condominium at Salem Trust to be recorded with said Master Deed, and agrees that the lien of the Mortgage shall be subject to the terms of said Master Deed. 9 . HIGHLAND [Salem Highland Development Corp. ] hereby agrees that in the event of foreclosure of the Mortgage, or the taking of possession of the premises for purposes of foreclosure, then Mortgagee shall have and may exercise all of the rights, powers and privileges of HIGHLAND as Declarant under and pursuant to said Master Deed, including without limitation the right to amend said Master Deed to include further phases or parts of the Condominium pursuant to provisions of said Master Deed; and I _ _6_ to that end, HIGHLAND hereby irrevocably constitutes and appoints Mortgagee as its true and lawful agent and attorney to exercise all such rights in such event. The premises shown as Lot A and Lot B on a plan entitled "Plan of Land in Salem, Massachusetts Prepared for Salem Highland Avenue Development Corporation" dated August 25, 1986, drawn by Essex Survey Service, Inc. , recorded at the Essex (Southern District) Registry of Deeds in Plan Book 219, Plan 36, and the units in the Condominium other than the Condominium Units identified in paragraph B below, have been released from the Mortgage. B. The portion of the mortgaged premises to be sold consists of the following units (the "Condominium Units") of the Condominium together with the respective undivided interests appurtenant thereto in the common areas and facilities of the Condominium and the rights and easements appurtenant thereto, all as set forth in the Master Deed, and together also with all the rights, powers and privileges of Salem Highland Development Corp. as Declarant under and pursuant to the Master Deed, all of which will be sold collectively rather than separately: Unit Unit Unit Unit 906 1906 1502 1604 1805 2001 1503 1605 1901 2002 1505 1702 1902 2003 1601 1802 1903 2004 1602 1803 1904 2005 1603 1804 1905 2006 The portion of the mortgaged premises to be sold will be sold (i) subject to and with the benefit of all restrictions, easements, improvements, outstanding tax titles, municipal or other public taxes, assessments, liens or claims in the nature of liens, and existing encumbrances of record created prior to the Mortgage or to which the Mortgage has been subordinated of record, and (ii) subject to persons in possession, and the rights of any tenants or occupants, of said portion of the mortgaged premises or any part thereof. For authorization to foreclose, see judgment of the Land Court in Case No. 135640. Terms of Sale: A deposit of One Hundred Thousand Dollars ($100, 000) will be required to be paid in cash or by certified or bank check by the purchaser at the time and place of sale. The balance of the purchase price shall be required to be paid in cash or by certified or bank check within thirty (30) days at the offices of Craig and Macauley Professional Corporation, Federal Reserve Plaza, 600 Atlantic Avenue, Boston, Massachusetts 02210 . Other terms to be announced at the sale. The undersigned holder of the Mortgage reserves the right to reject any and all bids for the portion of the mortgaged premises to be sold and to continue the foreclosure sale from -$- time to time to such subsequent date or dates as such holder may deem necessary or desirable. BANK OF NEW ENGLAND, N.A. Present holder of said mortgage By its attorneys, CRAIG AND MACAULEY PROFESSIONAL CORPORATION By:- Donald W. Suchma Craig and Macauley Professional Corporation Federal Reserve Plaza 600 Atlantic Avenue Boston, Massachusetts 02210 (617) 367-9500 Dated: February 23, 1990 2678H r e COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT DEPT. CIVIL ACTION NO. 86-1534 MIKE STASINOS VS CITY OF SALEM BOARD, OF APPEAL, AND JAMES B. HACKER, RICHARD A. BENCAL, JAMES M. FLEMING, EDWARD CONSENT- .JUDGMENT LUZINSKI, 'PETER STROUT, ARTHUR LABRECQUE, PETER A. DORE, AS THEY ARE MEMBERS OF THE CITY, OF . SALEM BOARD OF APPEAL It is hereby agreed by all parties that Consent Judgment shall be entered in the appeal from a decision of the City of Salem Board of Appeal, denying the Plaintiff ' s Petition request- ing the Board to issue a variance to allow construction on prem= ises located at #394 Highland Avenue, Salem, encompassing appro- ximately twenty-five (25) acres and lying in Districts R-1, R-C, =and BPD, which has been previously described as lying in Dis- tricts R-1, R-C and B-2, and that the contested decision of the. Defendant Board of Appeal be amended and that its decision be entered granting a variance with the following conditions : 1 ) The Plaintiff, Mike Stasinos, shall withdraw a pending subsequent petition presently before the Defendant Board of Ap- peal, with prejudice, upon final approval of this Agreement for Consent Judgment by this Court. 2 ) That the variance to be granted to the Plaintiff , Tike Stasinos, by the Defendant Board of Appeal shall contain the fol- lowing conditions, that the Plaintiff agrees to: a) That the Plaintiff, Mike Stasinos, shall be allow- ed to construct 140 condominium residential units and building, containing a total of 3000 square feet of floor space on one floor on a parcel of land containing 27 , 000 square feet of land, all set forth in a plan entitled "Highland Acres, Salem Highland Ave. Development Corp. , Owner and Developer, Peter F. MiDeo Assoc. Arch. " , dated August 3, 1986, a copy of which has been furnished the Defendant Board of Appeal and the City Planner, City of Salem. Said building is to be deeded to. the Condominum Association with- in a thirty-six month period from acceptance of this Agreement. The building is to be used for a temporary job site/real estate sales .. The building is to be used solely by the developer. b) That the Plaintiff, Mike Stasinos, shall grant to 't the City of Salem a parcel of land totalling 4 . 1 acres of land which shall be used by the City of Salem for soccer fields ; and, that the Plaintiff shall develop, at his cost, said proposed area, including screening, grading and seeding and fencing six (6 ' ) feet t in height, parking area and water fountain, all as defined and ap- t proved by the City Planner, City of Salem, in the location designat- ed in th'e aforementioned plan. c) That the City Planner, subject to the approval of the Board of Appeal, shall select a qualified professional engineer, at the Plaintiff ' s cost, who shall provide his services, to include the duties of Clerk of Works, and supervise and oversee the construction to be underaken by the Plaintiff, to insure that said construction 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 ' j the undertaken construction every two ( 2 ) weeks . That said engineer- ing services shall include the supervision and overseeing of the im- provements required in the installation of streets , roadways, side- walks, grass strips , monuments and utilities, all as provided in the ' i approved definitive plans submitted by the Plaintiff. It is agreed that said services to be furnished .by the Plaintiff shall not exceed any and all normal design standards for traffic impact and allow for waivers by the Board of Appeal, 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 prelimin- ary plan of the development to the Board of Health which shall be sub- mitted and approved by the Board of Health, Conservation Commission, City Engineer, Superintendent of Streets, Fire Department, Police Department, and School Department, City of Salem. x i 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 form and contents as required by Section IIIB, of the Sub-division Regulations, City of Salem. f ) . The Plaintiff, Mike Stasinos , shall, prior to construc- tion, submit an Environmental Impact. Statement in full and clear form, indicating the relation of the proposed project to the total environ- ment of the City of Salem and its inhabitants, and a copy of such to the Board of Appeal, .City of Salem. g) The Plaintiff , Mike Stasinos, shall file with the City Solicitor, City of Salem, a performance bond, on approved form, and in ? an amount approved by the Director. of Public Services guaranteeing e that the proposed constructions shall, upon completion, comply with this Consent Judgment and all pertinent sections of the Sub-division Regulations, City of Salem, to be applied to the unfinished work, prior to issuance of necessary compliance permits. - 2 - h) That the Plaintiff, Mike Stasinos , in the construction of the subject 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 Appeal and City Planner, City of Salem, shall reserve all rights of final approval, which approval shall not be unreasonably be with-held. i ) That the plaintiff,. Mike Stasinos, in the construction of the subject project, shall meet all required improvements, as set forth in Section IV and V, sub-division Regulations, City of Salem. j ) 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 meting 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. k) The Plaintiff shall contribute to any and all proposed traffic improvements on the Highland Avenue-Swampscott Road area, as defined by the City through its Comprehensive Traffic Study now being undertaken. Such a contribution shall be made with the approval of the City Planner according to a formula designed such that all developments within the surrounding geographical area shall fairly share such costs . 1 ) The Plainitff shall be required to reserve a strip of land to be defined by the City, along Highland Avenue, for the future widening of the roadway if deemed necessary by the Comprehensive Traf- fic Study now being undertaken. m) The Petitioner, Mike Stasinos, amend his deed to the real property located at 394 Highland Avenue, Salem, Massachusetts, and said amendment to be a covenant not to build on any portion of said real es- tate, other than on that portion utilized for 140 condominium units and 3 , 000 square foot building. Said amendment is to be approved in form by the City Solicitor. n) 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 Salem. (5) 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 upon the ab- utting 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 access to said parcel from Appleby Road, Made- line Avenue, Pyburn Avenue, Ravenna Avenue, or Sophia Road or any other accepted public way. p) That there will be no attempted closure of the median way on Highland Avenue, at the entrance of Ravenna Avenue by the develop- er or Condominium Association. 3 - q) The Plaintiff shall .relinquish the foundation and build- ing permits, as issued by the City of Salem currently existing for commercial uses on the parcel, upon finanal approval by the Board of Appeal and allownace of this Agreement for. Consent Judgment by r the Superior Court. r) That all water, sewer and drainage improvements o.n the site shall be subject to the review and approval of the City Plan- ner and Director, of Public Services, •.City of Salem; and, that all issues and concerns regarding drainage and wetlands shall be re= viewed and approved by the Conservation Commission, .City of Salem. s ) 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 Pub- lic Services , City of Salem. That upon such assessment, the Plain- tiff shall make any necessary improvements, at his costs , if re- quested by the City Planner and Director of Public Services. If it is deemed that improvements are necessary, and attributable to the project, to upgradethe existing wastewater pump station on Ravenna Ave. said improvements shall be implemented by and at the cost of the Plaintiff. { t) If required by the State Department of Public works, the Plaintiff shall contribute the demanded funds for drainage improvements proposed in the vicinity of Rich' s Department Store, Highland Avenue, Salem, in an effort to eliminate drainage pro- - 'blems found in the geographical area. U) That the City Planner shall submit a written state- ment of .satisfaction of all such conditions to the Building In- spector, City of Salem prior to the issuance of a building per- mit. { ! v) That the Plaintiff shall complete all cosntruction' 'f and install all required municipal services within three (3 ) t years from date of approval of the definitive plans; and, he shall provide 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 pro ject, 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. The hours for blasting shall be de termined by the Salem Fire Marshall. 2 . That the By-Laws of the Condominium Assoc- iation, to be executed and administered by the Condominium y, Association, shall provide that all costs of trash collec- tion and snow removal shall be paid for by the Association. r i' 4 - w) That the petitioner, Mike Stasinos, upon filing of the Definitive Plan with the Board of Appeal , shall also file said Definitive Plan with the Board of Health. Mike Stasinos, Plaintiff by his attorne Nicholas G. Curuby 7 Franklin Street Lynn, MA. , 01902 (617 ) 595-0009 City of Salem, and of Appeal, ' b its attorne . III Michael E. O'Brien City Solicitor City Hall 93 Washington Street Salem, MA. 01970 August 15 , 1986 5 _ f r g KEVIN T. DALYs :Y�:�yl.l�r�� ` LEONARD F. FEMINO ASSISTANT CITY SOLICITOR T% ;�,.3�tr? ASSISTANT CITY SOLICITOR �rumv.""r� 93 WASHINGTON STREET 93 WASHINGTON STREET AND CITY OF SALEM - MASSACHUSETTS AND ONE CHURCH STREET ONE SCHOOL STREET MICHAEL E. O'BRIEN SALEM, MA 01970 CSOLICITOR BEVERLY, MA 01975 745-4311 S745-4311 745-0500 93 WASHINGTON STREET 921-1990 AND PLEASE REPLY TO ONE CHURCH STREET 81 WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET SALEM, MA 01970 745.4311 744-3363 PLEASE REPLY TO 81 WASHINGTON STREET November 28 , 1988 am rn C) CD c .i James M. Fleming, Chairman Q` Salem Board of Appeal v n1 OD nr One Salem Green Salem, Massachusetts 01970n , Re : Stasinos vs Salem Board of Appeal ov ? Dear Mr. Fleming: Enclosed please find copy of communication I received from Attorney Sheehan in the above matter which is self-explanatory. ;V4erruly yours, ME. O' Brien City Solicitor MEO/jp Enclosure >R PEARL, MCNIFF, CREAN, COOK & SHEEHAN COUNSELLORS AT LAW 30 MAIN STREET SAMUEL PEARL,COUNSEL PEABODY.MASSACHUSETTS 018803552 THOMAS C.REGAN JOHN A.MCNIFF.COUNSEL MICHAEL T.SMERCZYNSKI JOHN M.CREAN PEABODY(508)531.1710 R ROBERT ALLISON OLIVER T.COOK BOSTON(BIA)28934M LAWRENCE J.O'KEEFE WILLIAM H.SHEEHAN IN November 9, 19 0 8 Michael E. 0.'Brien, Esquire 93 Washington Street Salem, MA 01970 Re: Stasinos VS. Salem Board of Appeal Dear Mr. O 'Brien: I write to you in your capacity as counsel . to the Salem Board of Appeal . You will recall that the Board of Appeal entered into a second amended settlement agreement (1986 action) whereby Mr. Stasinos, and his successor in title, were relieved from that conditior, initially imposed by the . Board of Appeal to the granting of a variance to Mr. Stasinos which required Mr. Stasinos to deed .to the City of Salem 3 .95. acres. , The City of Salem is now seeking relief from judgment in a separate action (1987 action) , but seeks no relief from the 1986. action as, indeed, it has no right to seek relief from that action since it is not a party thereto. Please be advised that it is our opinion that, whether or not the City of Salem obtains relief from judgment in the 1987 action, the Board of Appeal remains bound by contract to Mr. Stasinos in the 1986 action and that the actions of the City of Salem subsequent to the settlement of both of the abovesaid cases constitute an interference with Mr. Stasinos ' . contract with the Board of Appeal and, in the event the City of Salem is deemed to be in privity with the Board of Appeal, may constitute contemptuous acts in violation of the 1986 judgment. Mr. Stasinos has already suffered damage as_ a result of the action of the City of Salem and intends to avail himself of all available methods to collect tho14'e In= J damages from the responsible parties, which parties ceuld ` include the members of the Board of Appeal even thoug!zth€� t have taken no affirmative steps to avoid the 1986 set,Am5t 9 agreement and judgment. g _ V@ry 'tru1X ou e � l WHS:ds KEVIN T. DALY LEONARD F. FEMINO ASSISTANT CITY SOLICITOR T� `�T' �r ASSISTANT CITY SOLICITOR 93 WASHINGTON STREET 93 WASHINGTON STREET AND CITY OF SALEM - MASSACHUSETTS AND ONE CHURCH STREET ONE SCHOOL STREET MICHAEL E. O'B RIEN SALEM. MA 01970 BEVERLY. MA 01915 745-4311 CITY SOLICITOR 745-4311 745-0500 93 WASHINGTON STREET 921-1990 AND PLEASE REPLY TO ONE CHURCH STREET 81 WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET SALEM. MA 01970 745-4311 744-3363 PLEASE REPLY TO 81 WASHINGTON STREET November 28 , 1988 co fl cv C' CD cy ' James M. Fleming, Chairman ^m Salem Board of Appeal �m QD v One Salem Green Salem, Massachusetts 01970 v � � Re: Stasinos vs Salem Board of Appeal N © in N Dear Mr. Fleming: Enclosed please find copy of communication I received from Attorney Sheehan in the above matter which is self-explanatory. Very truly yours , R72) Mic ael E. O' Brien City Solicitor MEO/jp Enclosure I 1 f i ` , PEARL, McNIFF, CREAN, COOK & SHEEHAN COUNSELLORS AT LAW 30 MAIN STREET SAMUEL PEARL,COUNSEL PEABODY. MASSACHUSETTS 019668832 THOMAS C REGAN JOHN A. MCNIFF.COUNSEL MICHAEL T. SMERCZYNSN1 JOHN M.CREAN PEABODY 18081 831.1910 F.ROBERT ALLISON OLIVER T.COOT( BOSTON 16171 28i348B LAWRENCE J.O'NEEFE WILLIAM H. SHEEHAN 111 November 9 , 1988 Michael E. 0.'Brien, Esquire 93 Washington Street Salem, MA 01970 Re: Stasinos VS. Salem Board of Appeal Dear Mr. O 'Brien: I write to you in your capacity as counsel to the Salem Board of Appeal. You will recall that the Board of Appeal entered into a second amended settlement agreement (1986 action) whereby Mr. Stasinos, and his successor in title, were relieved from that condition initially imposed by the Board of Appeal to the granting of a variance to Mr. Stasinos which required Mr. Stasinos to deed to the City of Salem 3 .95 acres. The City of Salem is now seeking relief from judgment in a separate action (1987 action) , but seeks no relief from the 1986 action as, indeed, it has no right to seek relief from that action since it is not a party thereto. Please be advised that it is our opinion that, whether or not the City of Salem obtains relief from judgment in the 1987 action, the Board of Appeal remains bound by contract to Mr. Stasinos in the 1986 action and that the actions of the City of Salem subsequent to the settlement of both of the abovesaid cases constitute an interference with Mr. Stasinos ' contract with the Board of Appeal and, in the event the City of Salem is deemed to be in privity with the Board of Appeal , may constitute contemptuous acts in violation of the 1986 judgment. Mr. Stasinos has already suffered damage as a result of the action of the City of Salem and intends to n avail himself of all available methods to collect thove -D damages from the responsible parties, which parties ceuld include the members of the Board of Appeal even thoug$,;:t hep o have taken no affirmative steps to avoid the 1986 setnfemw o agreement and judgment . Tn7 d Vitry/truly/ ou s, g e / WHS:ds .y+ ,"tnuuri y ~� P� KEVIN T. DALY ,/�/ % LEONARD F. FEMINO ASSISTANT CITY SOLICITOR Tt "T' �;� ASSISTANT CITY SOLICITOR 93 WASHINGTON STREET 93 WASHINGTON STREET AND CITY OF SALEM - MASSACHUSETTS AND ONE CHURCH STREET ONE SCHOOL STREET MICHAEL E. O'B RIEN SALEM. MA 01970 - BEVERLY. MA 01915 745-4311 CITY SOLICITOR 745-4311 745-0500 93 WASHINGTON STREET 921-1990 AND PLEASE REPLY TO ONE CHURCH STREET 81 WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET SALEM, MA 01970 745-4311 744.3363 PLEASE REPLY TO 81 WASHINGTON STREET November 28 , 1988 vs m rn � m c o James M. Fleming, Chairman ^rn Salem Board of Appeal s m CD T One Salem Green Salem, Massachusetts 01970 =a n1 n r Re: Stasinos vs Salem Board of Appeal ^ d in Dear Mr. Fleming: Enclosed please find copy of communication I received from Attorney Sheehan in the above matter which is self-explanatory. Very gruly yours, (� l Mic ae1 E. O' Brien City Solicitor MEO/jp Enclosure t PEARL, MCNIFF, CREAN, COOK & SHEEHAN COUNSELLORS AT LAW 30 MAIN STREET SAMUEL PEARL.COUNSEL PEABODY. MASSACHUSETTS 019805332 THOMAS C.REGAN JOHN A. MCNIFF.COUNSEL MICHAEL T. SMERCZYNSKI JOHN M.CREAN PEABODY I5081 531.1710 F.ROBERT ALLISON OLIVER T. COOK BOSTON(617)28G3456 LAWRENCE J O'KEEFE WILLIAM N.SHEEHAN III November 9 , 1988 Michael E. O.'Brien, Esquire 93 Washington Street Salem, MA 01970 Re: Stasinos VS. Salem Board of Appeal Dear Mr. O 'Brien: I write to you in your capacity as counsel to the Salem Board of Appeal. You will recall that the Board of Appeal entered into a second amended settlement agreement (1986 action) whereby Mr. Stasinos, and his successor in title, were relieved from that condition initially imposed by the Board of Appeal to the granting of a variance to Mr. Stasinos which required Mr. Stasinos to deed to the City of Salem 3 .95 acres. The City of Salem is now seeking relief from judgment in a separate action (1987 action) , but seeks no relief from the 1986 action as, indeed, it has no right to seek relief from that action since it is not a party thereto. Please be advised that it is our opinion that, whether or not the City of Salem obtains relief from judgment in the 1987 action, the Board of Appeal remains bound by contract to Mr. Stasinos in the 1986 action and that the actions of the City of Salem subsequent to the settlement of both of the abovesaid cases constitute an interference with Mr. Stasinos ' contract with the Board of Appeal and, in the event the City of Salem is deemed to be in privity with the Board of Appeal, may constitute contemptuous acts in violation of the 1986 4 judgment. Mr. Stasinos has already suffered damage as a result of the action of the City of Salem and intends to t� avail himself of all available methods to collect th* damages from the responsible parties, which parties ceuld include the members of the Board of Appeal even thoug$,;�che7 m have taken no affirmative steps to avoid the 1986 setdb§e7mf,,Bt C, agreement and judgment. rn7 ' �.m m 'L3 V@ry�trulx� �o�u/� l /� STle�6hal1�\1 Z� CG T n ® / 1 Wo WHS :ds ,.c0,�1. Ctu of �ttlem C ttsstt�Itu�Pttg a '� 9 �Rvarb of �Ppe, � 4��I,IIM6 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 he 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. it 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 lie 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 r )IINUTES EXECUTIVE SESSION 1%27!88 CONTINUED PAGE TWO Fourteen because the attorneys had set up a deposition of qtr. 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 discove 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 , 0'00 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 . i11r . 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, lies 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, theotetically 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 conditions . 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 . sir. 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 pretend 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 contempt 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 lie 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 . Mr . Strout: Et 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 IINUTES 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, Renc_uist 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 lie 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 blut 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 , 1 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 : 1 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? 'Phis 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, lie 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 u�iits 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 , #i his claim to get the land back that he feels was forced to give through duress . 42 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 lie 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 existence 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 MINUTE'S 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 theses a consensus 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 vie 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 i/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 Ile 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 doingi t. 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 fie 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 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, lie 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 i.f 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 lie 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 2-`q 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 ahe.,ad 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. Bencai : 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 -IINUTES EXECUTIVE SESSION i,"27/88 CONTINUED PAGE ELEVEN chip for the Citv, you got to come back and talkto 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 or 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 interprete to be arbitrary, not based in reason , a violation of due process , then lie ' 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 wh 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"aamages 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 thats 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 r iINUTES 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 hire 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 tie 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. Submitted by: Lorraine Devoe, Clerk (C itu of �alcllh � iI55c�L1i1l5Et 5 (Offire of the ill itu (Elfrrh, r�o•c°N°rri e 31usrphiue Ix_ ;_Jrusrn , $octal i L[ihi tLlrrh i� p dit� fall \A 8 \41 MINE GYM September 2, 1988 Mr. James Fleming, Chairman Board of Appeal City of Salem Salem, MA 01970 Dear Mr. Fleming: At an Emergency Meeting of the City Council held in the Council Chamber on September 1, 1988, the enclosed Council Order was adopted. This action was approved by Acting Mayor Kevin R. Harvey on September 1, 1988. Very truly yours, JOSEPHINE R. FUSCO CITY CLERK JRF/deb Enclosure CITY OF SALEM 3 S September 1 p 1988 In City Council. _ r _.. __._.____. p���MME�}' Ordered: That the Board of Appeals provide the City Council with copies of written transcripts of all voice-taped meetings at which the City Solicitor , Mr. O'Brien, appeared before said Board relative to the Stasinos suits , includinq the executive session meeting of January 27 , 1988 . In City Council Septenber 1, 1988 Adopted by a roll call vote of 7 yeas, 0 nays, 4 absent Notion for immediate reconsideration in the hopes it �,ould not prevail was denied Approved by the Acting %layor on September 1, 1988 ATTEST: JOSEPHINE R FUSCO CITY CLERK r LAW OFFICE OF DALTON , VALKEVICH , CONLON & CONLON 58ROADWAV SAUGUS, MASSACHUSETTS 01906 JOSEPH F. DALTON.P.C. - AREA CODE 61.1 TEL.231-0956 THOMAS J.VALKEVICH 233-6812 ALBERT 5.CONLON DAVID A. CONLON PATRICK W. CORCORAN September > , 1988 City of Salem and Salem lioard of Appeals c/o ;iichael O' Brien , Esq . City Solicitor 93 F!ashington Street Salem , ;1A 01970 e : Salem iilghland Development Corp . v . City of Salem and Salem Board of Appeals Docket No . ^07-2852 Jear Sir/Madam: This letter will serve as notice to you that a hearing has been scheduled for September 16 , 1988 at 11 : 30 a.m. at Esser. Superior Court , Salem, l;assachusetts in the above matter . Our clients , the City Council of Salon , `.ievin P . Ilarvey , President , and the Chairman of the Committee on Finance of the City Council , Leonard F . O' Leary seek to intervene in this case . A preliminary hearing on September 7 , 19 "9 , notice of which was received by Salem :ii ,hland Development Corp . , via its counsel , Attorney Join .cliiff , resulted in court approval of the above date . In cooperation with the court ' ., :wishes we are advisin;; you , as a >arty of this hearing . P:nclosed you will find copies of the several motions reade on behalf of our clients with supporting affidavits and memorandum, all filed with the court . Sincerely , ` I Joseph P . Dalton nr,;S Enclosures CO iii0h6.EALTH OF 'iASSACIIUSETTS Essex , ss . Superior Court C. A . No . 87-2352 SALE!-! IIIGIILAND DEVELOPNEST CORP . ) Plaintiff ) V . ) CITY OF SALEii and SALEM BOARD OF ) APPEALS ) Defendants ) Memorandum In Support Of Motion For Relief From Judgment Under Mass .R . Civ . P. 60 (b) (6) I . FACTS :Michael Stasinos individually and as President L Treasurer of the plaintiff , Salem Highland Development Corp . , and the Defendants are no strangers to litigation . On June 11 , 19'16 Michael Stasinos filed suit against the Salem Board of Appeals under G . L . c . 40A s . 17 appealing a decision denyinG him a permit for construction of a number of residential units on premises located at 394 Highland Avenue in Salem ( Esse>: Superior Court , Civ . No . 86-1534 ) . A Consent Judgment in that case was filed and approved by the Court on August 18 , 1986 . A condition of that judgment was that the plaintiff grant a parcel of land totalling 4 . 1 acres to the City of Salem for use as a soccer field . The original land area delineated as 4 . 1 acres was later amended by consent to 3 . 95 . The Amended Form of Judgment was heard and approved on February 27 , 1987 . A deed conveying the property was tendered to the City of Salem on March 3 . 1987 and subsequently recorded December 19 , 1987. (Appendix A ) On April 1 , 1987 the Plaintiff Flichael Stasinos and his successor in interest, Salem Highland Development Corp. filed a Verified Complaint for Civil Contempt (Docket No . 86-1534) against the Defendants Salem Board of Appeals and added as further defendants the Salem City Planner , Gerald KavanauSh , the Salem Building Commissioner , Uilliam H . Munroe , and the City of Salem . On December 28, 1987 Salem Highland Development Corp. filed the instant suit involving the premises previously conveyed . A Stipulation of Dismissal on Essex Civil No . 86-1534 was filed and approved on July 14 , 1988 . An Amended Consent Judgment dated July 5, 1988 was subsequently filed and allowed in the instant case on July 15 , 1988 . It is the July 14 , 1988 stipulation and . the Amended Consent Judgment filed and allowed July 15 , 1958 and the subsequent Judgment entered disenfranchising the City of Salem from its land that the City Council , the President of the City Council , and the Chairman of the Finance Committee of the City Council seek to challenge through its motion under Nass . P . Civ . P . 60 ( b) (6) . II. ISSUES 1 . DID THE CITY SOLICITOR LACK THE NECESSARY AUTHORITY TO AGREE TO ENTRY OF THE CONSENT FOR JUDGMENT UNDER MASS . R . CIV . P. 70? 2. DID THE CITY SOLICITOR LACK THE AUTHORITY OR POWER OR BOTH TO ALIENATE THE CITY OWNED REAL ESTATE? III . DISCUSSION iiass . R . Civ . P. 60 authorizes relief from a final judgment in various circumstances . Chavoor v . Lewis , 383 ,;ass . 801 ( 1981 ) . Relief under Mass . R . Civ . P. 60 ( b) (6) is limited to instances "when the vacating of a judment is justified by sone reason other than those stated in subdivisions ( 1 ) through ( 5)" . Id , at 805 . To prevail , a party must show that there is a reason to justify the relief , and also that the reason is not within the grounds set forth in i;ass . R . Civ . P. 60 ( b ) ( 1 )-( 5) . Parrell v , Keenan , 389 Nass . S09 ( 1933) . In short , Rule 60 (b) (6 ) vests "power in courts adequate to enable then to vacate judgments whenever such activity is appropriate to accomplish justice . " Id . at 814 quoting Klapprott v . United States , 335 U. S . 601 , 615 ( 1949) . 1 . THE CITY SOLICITOR LACKED THE NECESSARY AUTHORITY TO AGREE TO ENTRY OF THE CONSENT FOR JUDGMENT UNDER MASS . R. CIV. P. 70. The duties of the City Solicitor are contained in the Code of Ordinances of the City of Salem which read in pertinent part : It shall be the duty of the city solicitor to commence and prosecute all actions and suits to be commenced by the city ; to defend all actions and suits brought against the city ; . . . He may take such steps , and incur such expense , to be charged to the proper appropriations , in prosecuting and defending suits , as he may deem necessary ; and may settle any suit against i the city upon approval of the mayor , the president of the city council , and the chairman of the finance committee. (emphasis supplied ) . Salem , Class . Code of Ordinances Art . VI s . 2- 181 et . seq . ( 1952 ) . Affidavits signed by the President of the City Council , and the Chairman of the Finance Committee clearly show that at no tine during the course of these proceedings did the City Solicitor comply with this ordinance and at no tine did he have authority to settle this case and agree to the entry of a consent judgnent under Mass . P . Civ . P. 70. Since the City Solicitor exceeded the powers given him, his actions cannot bind the City of Salem. 2 . THE CITY SOLICITOR LACKED THE AUTHORITY OR POWER OR BOTH TO ALIENATE THE CITY OWNED REAL ESTATE. The Land which purports to be disenfranchised was originally transferred to the City of Salem on ;:arch 3 , 1987 . Article XV Division 5 s . 2-403 et . seq . and Article III s . 2-129 of the Code of Ordinances for the City of Salem detail the procedures concerning the conveyance or alienation of city owned real estate . Article III s . 2- 129 states that only the City Council nay convey real estate after a two-thirds ( 2/3 ) vote of all of its members . Article XV Division 5 sets forth in greater detail the interlocking and specific duties of the 11ayor and the City Council concerning the conveyance or alienation of city owned real estate . Nowhere does the Code instill any authority on the City Solicitor or the Board of Appeals of Salem to transfer , sell or alienate city owned land . An analogous situation occurred in Sowers v . Board of Appeals of Marshfield , 16 Mass App . Ct . 29 ( 1983 ) , further appellate review denied , 389 ?lass . 1104 ( 1983) . In Bowers , a newly constituted Board of Selectmen moved to vacate a consent judgment which involved the alienation of public land by the predecessor Board of Selectman . The Board was not empowered to alienate or dispose real estate as that power resided within the inhabitants of the town acting at town meeting . Tlie motion to vacate under %lass . R . Civ . P. 60 ( b) (4 ) was brought four years after the entry of judgment . The Court , however , vacated judgment under liass . R. Civ . P. 60 ( b) (6) applying the familiar caveat "that those who contract with the officers or agents of a governmental agency must at their peril ' see to it that those officers or agents are acting within the scope of their authority ' " . Id . , at 34 citing Sancta Iiaria Ilosp . v . Cambridge , 369 lass. 586 , 595 , ( 1976) ; :ldalian Bros , v . Boston , I �f f I 323 Class . 629 , 632 ( 1949) ; l•Jhite Constr . Co . v. Commonwealth , 11 Cass . App. Ct . 640 , 648 ( 1981 ) . The Appeals Court pointed out the consequences of not applying such a principle stating " [w) ere it . otherwise public officials could bind their governmental agencies to unlawful conduct by ready acquiescence in an agreement for judgment and , thus , circumvent the restrictions on their powers . " Id . V. CONCLUSION Since there was no authority given by the President of the City Council and the Chairman of the Finance Committee to the City Solicitor to settle this matter and since no authority was given to divest the City of its land this motion must be allowed . For the foregoing reasons the Court should vacate the judgment and assign the case for trial . City Council for the City of Salem Bevin R . Harvey President , City Council , and Leonard F. O ' Leary Chairman , Finance Committee By their Attorneys : Joseph F . Dalton Albert S . Conlon 5 Broadway , Saugus , iiA 01906 (617) 231-0956 COMMONWEALTH OF MASSACHUSETTS Essex , ss. Superior Court C .A . No . 87-2852 SALEM HIGHLAND DEVELOPMENT CORP. , ) Plaintiff ) V . ) Motion To Intervene Pursuant To Mass. CITY OF SALEM and SALEM BOARD OF ) R. Civil P. 24 (a) APPEALS , ). Defendant ) The City Council of the City of Salem, Kevin R . Harvey , as he is the President of the City Council, and Leonard F . O' Leary as he is the Chairman of the Committee on Finance of the City Council move this Honorable Court allow them to intervene in this matter. As reason therefor , the parties state the following : 1 . The parties seekinc, intervention are the duly elected members of the City Council of the City of Salem, its President , and the Chairperson of its Finance Committee . 2 . Under the provisions of the Code of Ordinances of the City of Salem, the approval of the City Council is required for the alienation or disposal of any city owned property . A copy to the ordinance is included in the Appendix . 3. Under the provisions of the Code of Ordinances of the City of Salem, the approval of the President of the City Council and the Chairperson of the Finance Committee are required , in addition to that of the Mayor , in order to settle any lawsuit on behalf of or against the City of Salem. A copy of the oridinance is included in the Appendix. 4. The parties seeking to intervene did not give the requisite approval to the transfer of the property at issue nor for the settlement of this case. For reference see the Affidavits of Kevin R . Harvey and Leonard F. O' Leary . 5 . Unless the named parties are allowed to intervene their rights and those of their constituents with respect to the subject matter of the case will not be adequately represented and , in fact , have already been injured . 6. For authority , the parties cite 11ass. R . Civ . P. 24 (a) ; Department of Community Affairs v . Massachusetts State College Building Authority , 378 Mass. 418 ( 1979) . City Council for the City of Salem; Kevin R . Harvey , and Leonard F. O' Leary by their Attorneys Joseph F. Dalton Albert S . Conlon 5 Broadway Saugus , NA 01906 (617 ) 231-0956 i .rte' I f C0Nii01;:'EALTH OF 11ASSACI:USETTS Essex , ss. Superior Court C. A . iN'o . ' 87-2852 SALEIi HIGHLAND DEVELOPTIENT CORP . , ) Plaintiff ) Motion For Relief V. ) From Judgment Under Mass. R. Civ. P. 60 (b) (6) CITY OF SALEM and SALEM LOARD OF ) APPEALS , ) Defendants ) The Intervenors , City Council of the City. of Salem, Kevin R . Harvey , as he is the President of the City Council , and Leonard F. O ' Leary as he is the Chairman of the Committee on Finance of the City Council , move under Hass . R . Civ . P. 60 ( b) (6) that the agreed Entry of Judgment entered in this case on July 14 , 1988 be vacated and the case be assigned for trial . The judgment was entered less than one year from the date of this notion. In support thereof , the Intervenors state that the judgment is invalid as it : ( 1 ) Was entered into by the City Solicitor actino ..ithouL the necessary authority- to settle this case on behalf of the City of Salem in violation of the Code of Ordinances of the City of Salem , Art . VI s . 2-181 ; and ( 2) Constitutes an unauthorized alienation of City owned land in violation of G .L. c . 40 s . 3 , and the Code of Ordinances of the City of Salem, Art . III s . 2-129 and Article XV Division 5 s . 2-403 et seq . Wherefore , the Intervenors request that the judgment be vacated and the case be scheduled for trial. For the Intervenors City Council of the City of Salem, Kevin r Harvey , and Lawrence F . O' Leary by their Attorneys : Joseph F. Dalton Albert S . Conlon 5 Broadway , Saugus , PIA 01906 ( 617 ) 231-0956 Certificate of Service September 6 , 1988 I , Joseph F. Dalton , counsel for the Intervenors certify that we served the above on the plaintiff this date by delivering in hand , a copy of same to counsel for the plaintiff , Villiam H. Sheehan , III , 30 Main Street , Peabody , I-iA 01960. Joseph F . Dalton COMMONWEALTH OF ,MASSACHUSETTS Essex, ss. Superior Court C.A. No. 87-2552 SALE[ HIGHLAND DEVELOPMENT CORP . ) Affidavit in Support of Plaintiff ) notion For Relief From Judgment Under class.R . Civ . P . - 60 (b)- (6) CITY OF SALEM and SALE[ BOARD OF - APPEALS . ) Defendant . Kevin R. Harvey ) I , Kevin R . Harvey , a duly elected 'member of the Salem City Counsel , and the President , of the City .Council, state the following under the pains and penalties of perjury: __ _1 . - L am the President -of -.the _City__Council_ofthe City.- of_ Salem. 2. No approval fron me was sought by the City Solicitor or any other party involved in the above litigation relative to settle -- this case or enter into a consent judgement . 3 . I neither gave approval nor authorized any other person to o the City Solicitor to settle this give approval on my behalf t case as required by the Salem' s Code of Ordinances Art . S . 2-181 et. - seq ..( 1952),-a cop/ of_ which is attached hereto . 4 . The parcel which is the subject matter ,of this litigation - was never included nor acted upon by the City Council under the the Disposition of City Owned Land provisions relating to -- -- contained in Salem' s-Code of -:Ordinances-Arta S. 2-403, et . seq. ( 1952) a copy of which i eluded in Appendix A. Kevin R . Harvey President , City ouncil Salem, Mass . , September 5 , . 1988 Essex ss . On this day the above named Kevin R . Harvey , being duly sworn , personally appeared before me and stated that the above statement is true to the best of his knowledge and belief . { --------------------- i Notary Public My commission expires April 22 , 1994 I � ::Q - §2-167 ADIM INN ISTRATION _ §2-181 Secs. 2-167,2-168. Reserved. Editor's nate—Sections 2-167 and 2.168,relative to the preparation,distribu- tion. numbering,printing and binding of annual reports,derived from Code 1952, Ch.2,§§49.51,were repealed by Ord.of Sept 24,1981,§2. Secs. 2-169-2-178. Reserved. - ' ARTICLE VI. CITY SOLICITOR• Sec. 2-179. Appointment,removal; term; qualifications. The mayor shall appoint and may remove, without confir- mation by the city council, a city solicitor who shall maintain his law office in the city and shall be attorney and counsellor in the courts of the commonwealth..The city solicitor shall hold office until his successor. is. a =• (Ord. of 7-20-70, § 1) _ appointed and qualified. Charter reference—Appointment and removal of city solicitor, § 60. Sec. 2-180. Compensation. The city solicitor shall receive such compensation as the city council may determine, which shall be in full for all serv- ices he may be. called upon to perform under the provisions of this article. (Code 1952, Ch. 2, § 57) Cross reference Compensation of city solicitor, § 2-91. Sec. 2-181. Duties generally. It shall be the duty of the city solicitor to commence and Prosecute all actions and suits to be commenced by the city; to defend all actions and suits brought against the city; to appear as counsel in any other action, suit or prosecution which may involve the rights and interests of the city, if requested to do so by the mayor or city council; and defend the officers of the city, in any suit or prosecution against them, for any act or omission in the discharge of their offi- cial duties, wherein any estate, right, privilege, ordinance, 'Cross reference Claims against the city, § 2.537 at seq. State law reference—City solicitor defined, i12.G.L.A. c.41, § 7. Supp.No.8 207 § 2-181 SALEM CODE § 2.182 or act of the city government, or any breach of any ordinance may be brought in question. He may take such steps and in- cur such expense, to be charged to the proper appropriations. in prosecuting and defending suits, as he may deem neces- sary; and may settle any suit against the city upon approval of the mayor, the president of the city counci an the c ai - man or the mance comms ee e s a also appear before Me genera court or commonwealth, or before any com- mittee thereof, whenever the interests or welfare of the city may be directly or indirectly affected, if requested to do so by the mayor or city council; and shall perform all other profes- sional duties incident to his office which may be required by the mayor or the city council; and he shall, when requested, furnish the mayor, any member of the city council, the school committee, or any board or officer in charge of a department - of the city government, his legal opinion on any subject or question relating to the discharge of their official duties; provided, however, that if such opinion is desired in writing, the question submitted for his consideration shall also be stated in writing. The city solicitor shall examine all claims presented to him, and if a settlement thereof seems to him advantageous for the city, shall approve the same. (Code 1952, Ch. 2,.§ 54) Sec. 2-152. Drafting legal instruments. The city solicitor shall draft, or cause to be drafted, all bonds, deeds, contracts, and all other legal instruments which ' may be required of him by the city council, any board or Supp.No.8 208 i COMMONWEALTH OF MASSACHUSETTS Essex , ss. Superior Court C.A. No . 87-2852 SALEM HIGHLAND DEVELOPMENT CORP . ) Affidavit in Support of , Plaintiff ) Motion For Relief From V . - ) Judgment Under Plass.R. Civ . P. 60 (b) (6) CITY OF SALEM and SALEM BOARD OF ) ' APPEALS ) Defendant ) Leonard F . O' Leary I , Leonard F. O' Leary , Chairman . of the Committee on Finace of the City Council , state the following under the pains and penalties of perjury : . 1 . I am the duly appointed Chairman of the Finance Committee of the City Council of the City of Salem. 2 . No approval from me was souglft by the City Solicitor or any other party involved in the above litigation relative to settle - this case or enter into any consent judgement . 3 . I neither gave approval nor authorized any other person to give approval on my behalf to the City Solicitor to settle this case as required by the Salem ' s Code of Ordinances Art . S . 2-181 et . seq . ( 1952) a copy of which is attached hereto . 4 . The parcel which is the subject matter of this litigation was never included nor acted upon by the City Council under the provisions relating to the Disposition of City Owned Land contained in Salem' s Code of Ordinances art . S . 2-403 et. seq . ( 1952) a copy of which included in Appendix A . Leonard F. O' Leary Chairman of the Finance Committee City Council, Salem, Plass. Essex , ss . September 5 , 1988 On this day the above named Leonard F. O' Leary , being duly sworn, personally appeared before me and stated that the above statement is true to the best of is know�C C and belief . ' ot, r Public My comm si expires i i §2-167 . MI\ISTRATION §2.181 Secs. 2-167.2-168. Reserved. Editor's note—Sections 2-167 and 2.168,relative to the preparation,distribu- g of annual reports,derived from Code 1952, tion,numbering, printing and bindin _ Ch.2.§149.51,were repealed by Ord.of Sept.24,1981,§7 i Secs. 2-169-2-178..Reserved. i ARTICLE VI. CITY SOLICITOR' Sec. 2-179. Appointment,removal; term; qualifications. The mayor shall appoint and may remove, without confir- mation by the city council, a city solicitor who shall maintain his law office in,the city, and shall be attorney and counsellor in the courts of the commonwealth. The city solicitor shall hold office until his successor is appointed and qualified. .(Ord. of 7-20-70, § 1) Charter reference Appointment and removal_ of city solicitor, § 60. Sec. 2.150- Compensation. The city solicitor shall receive such compensation as the city y determine, which shall be in full for all sery council ma - . may a called upon to perform under the provisions ices co of this article. (Code 1952, Ch. 2, § 57) Cross reference—Compensation of city solicitor, § 2 Sec. 2-181. Duties generally. It shall be the duty of the city solicitor to commence and prosecute all actions and suits to be commenced by the city; to defend all actions and suits brought against the city; to appear as counsel in any other action, suit or prosecution which may involve the rights and interests of the city, if requested to do so by the mayor or city council; and defend the officers of the city, in any suit or prosecution against them, for any act or omission in the discharge of their offi- cial duties, wherein any estate, right, privilege, ordinance. *cross reference—Claims against the city, § 2-537 et seq. State law reference—City solicitor defined, M.G.LA. c.41, § 7. SupP.No.8 207 If � - r _ SALEM CODE § 2-182 or act of the city government, or any breach of any ordinance may be brought in question. He may take such steps and in- cur such expense, to be charged.to the proper appropriations. in prosecuting and defending suits, as he may deem neces- sary; and may settle any suit against the city upon approval of the mayor, a Pres, ear o e c� y councilan the c a- - man o the finance committee- e s a also appear_ before e general court _orlYe commonwealth, or before any com- mittee thereof, whenever the interests or welfare of the city may be directly or indirectly affected, if requested to do so by the mayor or city council; and shall perform all other profes- sional duties incident to his office which may be required by the mayor or the city council; and he shall, when requested, furnish the mayor, any member of the city council, the school. committee, or any board or officer in charge of a department - of the city government, his legal opinion on any subject or question relating to the discharge of their official . duties; _ - -- provided, however, that if such opinion is desired in writing, _. . _ the question submitted,:for his consideration shall also be - stated in writing. The city solicitor shall examine all claims presented to him, and if a settlement thereof.seems to him advantageous for the cit shall Y, approve the same. (Code - 1952, Ch. 2, § 54) Sec. 2-182. Drafting legal instruments. _ The city solicitor shall draft, or cause to be drafted, all bonds, deeds, contracts, and all other legal instruments which may be required of him by the city council, any board or Supp.No.8 208 I I COMMONWEALTH OF MASSACHUSETTS Essex , ss. Superior Court C.A . No. 87-2852 SALEM HIGHLAND DEVELOPMENT CORP . , ) Plaintiff ) Application By The V . Intervenors For CITY OF SALEM and SALEM BOARD ) Temporary Restraining APPEALS, ) Order and Preliminary Defendants Injunction Under Mass. R. Civ. P. 65 (a) Pursuant to I;ass . 1' . Civ . P. 65 (a) the Intervenors , City Council of the City of Salem, Kevin R . Harvey , President of City Council , Lawrence F. O' Leary , Chairman of the Committee on Finance by their Attorney make application for a temporary restraining order enjoining the Plaintiff , its officers , agents , servants , employees and attorneys and all building under them from building, constructing , excavating , or taking any action whatsoever which causes or results in changes to the parcel of land designated as 3 . 95 acres of land and located off Highland Avenue, Salem, Essex County , Massachusetts , and shown as Lot A on a "Plan of Land in Salem Mass . , prepared for Salem Highland Development Corp" dated August 25 , 1986, Essex Survey Service, Inc . Reg Land Surveyor , recorded with Essex South District Registry of Deeds , Plan Book 219 , Plan 36 , a more detailed description is contained in the deed contained in- the Appendix. . The Intervenors further request that the Court order pursuant to the application for preliminary injunction the Plaintiffs restore the premises to the condition in which it existed on June 14 , 1988. As grounds for this application the Intervenors state : 1 . The property in question was owned by the City of 'Salem, prior to the entry of a consent judgement on July 14 , 1968 ; 2 . The Intervenors Have filed a motion pursuant to Hass . R . Civ . P. 60 ( b) (6) seeking relief from the entry of judgment ; 3. The basis of that motion is that the City Solicitor did not have the required approvals necessary under the Code of City Ordinances for the City of Salem to consent to the entry of judgment , nor can such a judgment properly disenfranchise the City of Salem since it does not comply with the relevant City Ordinances or G. L.c . 40, s . 3 ; I. i I i 4. Since the City Solicitor cannot convey this land without proper authority the land is still rightfully the property of the City of Salem. Wherefore , the Intervenors pray that such temporary restraining order and preliminary injunction issue . For the Intervenors City Council of the City of Salem, Kevin R. Harvey , and Lawrence F. O' Leary by their Attorneys : Joseph F. Dalton Albert S . Conlon 5 Broadway Saugus , MA 01906 (617) 231-0956 t