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73 WEATHERLY DRIVE - BUILDING INSPECTION ��� � 400/0 Pd HAROLD N. MACK ATTORNEY AT LAW 25 EENOZA AVENUE HAVERHILL.MASSACHUSETTS 01830 TELEPHONE (978)3741131 18001 4576912 Oa COUNSEL TO: - 'FACSIMILE PIHLLIPB,GERSTEIN, HOLBER&CHANNEN (978)3723088 April 5, 2006 VIA CERTIFIED MAIL Thomas St. Pierre, Building Commissioner City of Salem 120 Washington Street, 3rd Floor Salem, MA 01970 Re: Irving Gordon, et al. v. Commonwealth of Massachusetts State Building Code Appeals Board Essex Superior Court C.A. No. 30808 Dear Commissioner St. Pierre: On behalf of the undersigned and Irving Gordon, Plaintiffs in the above matter, please be advised as follows: On October 30, 2002, you issued an Order directing the removal of an automated chairlift installed in a common area stairway located at 63-73 Weatherly Drive,Salem. (A copy of said Order is enclosed.) On August 18, 2003,the State Building Code Appeals Board granted a variance from your October 30, 2002 Order, thus permitting the chairlift to remain in place. i By Judgment entered on February 7, 2006, the Superior Court reversed the decision of the State Building Code Appeals Board which granted a variance to your October, 2002 Order of Removal. (A copy of said Judgment is enclosed.) As a result of the Court's Judgment,your Order of Removal remains in full force and effect. i : Commonwealth of Massachusetts County of Essex The Superior Court CIVIL DOCKET# ESCV2003-00808 Irving Gordon and Harold Mack V$ Comnionwealth of Massachusetts State Building Code Appeals Board Mid r''urnela Stavis JUDGMENT This action came on before the Court, Howard Whitehead, Justice, presiding, and upon consideration thereof, It is ORDERED and ADJUDGED; That tho decision of the State Building Code Appeals Board granting Pamela Stavis <a variance (permitting Stavis to maintain a chairlift in a common egress stairway or the condominium building in which plaintiffs and Pamela Stavis reside) be and hereby is reversed. f:)ated at Salcm, Massachusetts this 7th day of February, 2006. Thomas H. Driscoll Jr., Clerk of the Courts Assistant Clerk Copies rnailcd 02/07/2006 i •' ' i nir.Ln„ bYl xPny'!0 }yJ•'I{�f uPnnnnnJ FEB-13-2006 MON 11 46 AM........................ .. . .. . PAx NO. P. 03/08 PUeL.tC PROPERTY DEPARTMENT I20 WASHINGTON STREET,3RD FLOOR 5A6EMI MAO t 870 TEL. (978)745.3595 EXT.'880 C/• rix (978) 740-8648 �� 3 STAN4Lcy J. UOQVICX, JR. MAYOR i II Robert&Pamela Stavis 69 Weatherly Drive Salem,Ma.01970 Dear Owners: This department has received complaints from two tenants in your building about the chairlift that is mounted in the stairway. Jill,boma American Properties, contacted ane several months ago and asked me if the installation of ih6 stairhft would be allowed. At that time.,I checlmd the Mass State Building Code and found an exception in use gmup A-3 that would allow installation of a chair W I relayed this information to Jill who relayed it to you. However.lOWW U to,the use,group claselfitatiob further,I have discovered that the buildings do yvot°development aro use group It-,2, 773c,R�2 use group would not allow this installation of the chair lift, At Oda time,I must inform you that Elan cbairlift is a code violation. Thr,lift needs to be removed as early as possible. I apologize for the inconvenience that I have caused you. Xf further information is needed or you wish to discuss this matter,please contact me di% ctly. 'I'ltotoas S Acting Building Cotnttrissionet ccs Mayors Office Tom.'l;hitlbin John Keertau All,AHUA- m Properties ( 1 Thomas St. Pierre, Building Commissioner Page 2 April 5, 2006 Please confirm that you will promptly take appropriate steps on behalf of the City of Salem to enforce your Order of Removal. Very truly yours, Harold N. Mack HNM/dkb Enclosures cc: Elizabeth Rennard, Esq. Annapurna Balakrinshna, Esq. Carl D. Goodman, Esq. LAW OFFICE OF CARL D. GOODMAN 152 Lynnway—Suite I LYNN,MASSACHUSETTS 01902 781-593-2016- 781-639-8100 781-592-1129 facsimile carl@atto7neygoodman.com April 24, 2006 Harold N. Mack, Esq 25 Kenoza Avenue Haverhill, MA 01830 RE: Irving Gordon et al v. Commonwealth of Massachusetts Board of Building Code Appeals. Essex Superior Court Civil Action ESCV2003-00808 Dear Mr. Mack: Pursuant to our telephone conversation and my facsimile letter to you of this date, enclosed please find Designation of the Record on Appeal. Very truly yours, CARL D. GOODMAN cc: Service List COMMONWEALTH OF MASSACHUSETTS ESSEX, SS: SUPERIOR COURT DEPT. OF THE TRIAL COURT Civil Action#ESCV2003-00808 IRVING GORDON and HAROLD MACK PLAINTIFFS-APPELLEES _v_ COMMONWEALTH OF MASSACHUSETTS STATE BUILDING CODE APPEALS BOARD, DEFENDANT AND PAMELA STAVIS,DEFENDANT-APPELLANT DESIGNATION OF THE RECORD ON APPEAL Pursuant to M.R.A.P. 18(b), the defendant-Appellant,Pamela Stavis,designates the following portions of the record for inclusion in the Record Appendix: Docket Number&Description of Document: 1. Complaint 2. Return of Service 3. Answer of State Building Code Appeals Board 4. Amended Complaint 5. Second Amended Complaint 6. Administrative Record 12. Transcript Volume 1,Pages 1-35 13. Supplemental Administrative Record Transcript of 7/15/03, Pages 1-39 !, 14. Plaintiffs' Motion for Judgment on Pleadings 15. Letter from Attorney Balakrishna,Assistant Attorney General law Off=of 16. Judgment, 10/27/2004 152 Lpmwsy Lym,MA 01902 ni-593.2016 M 17. Motion of Pamela Stavis to Intervene,Vacate Judgment, and Dismiss Complaint 18. Memorandum of Decision and Order, 5/05/2005 19. Memorandum of Decision and Order, 6/07/2005 20. Return of Service as to Pamela Stavis 21. Memorandum of Defendant Stavis and Opposition to Plaintiff's Motion for Judgment on the Pleadings 22. Plaintiff's Supplemental Responsive Memorandum in Support of Motion for Judgment in the Pleadings 23. Memorandum of Decision and Order, 2/01/2006 24. Judgment, 2/06/2006 PAMELA STAVIS efendant-Appellant By her attorne Dated: April 24,2006 C . GOODMAN 152 Lynnway- Suite 1 E. Seaport Landing Lynn,MA 01902 Tel: (781) 593-2016; (781) 639-8100 BBO#201720 Lew Office.! c n D.Cmodm 152 Lynnway Ly MA 01902 781-593-2016 2 CERTIFICATE OF SERVICE I certify that a true copy of the within document was served this day by first class mail, postage prepaid,upon the following: Assistant Attorney General Annapurna Balakrishna One Ashburton Place—Room 2019 Boston, MA 02108 Harold M. Mack, Esq. 25 Kenoza Avenue P.O. Box 909 Haverhill,MA 01830 Stuart M. Holber, Esq. P.O. Box 909 Haverhill, MA 01830 Mr.Thomas St. Pierre Building Commissioner City of Salem Public Property Department 120 Washington Street Salem, MA 01970 Dated: April 24, 2006 / CARL D. GOODMAN 152 Lynnway- Suite 1 E Seaport Landing Lynn,MA 01902 Tel: (781) 593-2016; (781) 639-8100 BBO#201720 Law Off=of - CmI D.Good. 152 Lymway Lyon M 01902 791-593-2016 3 2L\ Commonwealth of Massachusetts DEPARTMENT OF HOUSING & COMMUNITY DEVELOPMENT Mitt Romney,Governor ♦ Kerry Healey,Lt.Governor ♦ Jane Wallis Gumble,Dre:kw Memorandum To: Local Officials and Housin a u From: Jane Wallis Gumble, Dire or Subject: Monitoring of Chapter 40 velopm is Date: April 27, 2006 i On behalf of the Department of Housing and Community Development I would like to clarify some questions that have arisen about the role that local boards and organizations may undertake in monitoring approved Chapter 40B developments. The Comprehensive Permit Law (M.G.U. Chapter 40B) provides for the issuance of comprehensive permits by zoning boards of appeal (ZBAs) to public agencies, nonprofit organizations and limited dividend organizations for the purpose of developing low- and moderate-income housing. In granting a permit, the ZBA may impose reasonable conditions that address planning and land use concerns (such as building height, number of units, site layout, environmental mitigation, etc.) Further guidance on ZBA decisions is available on DHCD's web site (www.mass.gov/dhcd/components/hac) and in the Massachusetts Housing Partnership's Local 40B Review and Decision Guidelines (www.mhi).net/40B). The rules that allow a developer to qualify for a comprehensive permit are established and regulated by the applicable federal or state "subsidizing agency." For most 40B developments that subsidizing agency will be MassHousing, DHCD, the Massachusetts Housing Partnership, or MassDevelopment. (In the case of projects subsidized by the New England Fund of the Federal Home Loan Bank of Boston, MassHousing acts as project administrator under the Guidelines for Housing Programs in which Funding is Provided Through a Non-Governmental Entity (NEF Guidelines) (http://www.mass.gov/dhcd/ToolKi­t­/`­defaulLhtm) and effectively undertakes the same role as a subsidizing agency.) In order to comply with regulations, the subsidizing agency must ensure that the developer will be a limited dividend organization through execution of a regulatory agreement. In addition, the subsidizing agency must be satisfied that development costs and fees are reasonable and within program limits (which is verified through a cost certification upon the development's completion), that housing is sold or rented to income and asset-qualified households in compliance with fair housing laws, that sales prices for homeownership units or monthly rental 100 Cambridge Street,Suite 300 www.mass.gov/dhcd Boston, Massachusetts 02114 617.573.1100 costs are within program limits, and, in the case of rental housing, that annual dividends from the operations are within program limits. It is the responsibility of the subsidizing agency to monitor and enforce the aforementioned requirements that are imposed on the development. Monitoring of 40B projects is performed either by the subsidizing agency or by an organization under contract to the subsidizing agency_ called a monitoring agent.' If local organizations are willing and able to perform some or all of those monitoring functions they may submit their qualifications to the subsidizing agency for approval. A subsidizing agency may establish minimum qualifications and performance standards for local monitoring agents, and it is within the subsidizing agency's discretion whether to utilize local monitoring agents. Indeed, because the subsidizing agency is accountable for adhering to Chapter 40B statutory, regulatory, and program requirements, it must ensure that the monitoring agent has the capacity to perform those tasks well with no conflicts of interest. ` Zoning boards of appeal may not under any circumstance impose conditions in a comprehensive permit that impinge on the regulatory responsibilities of the subsidizing agency. Accordingly, ZBAs should not impose any conditions that specify how cost certification, project monitoring, or the sale or rental of affordable units is to be performed, or by whom those tasks will be performed during the period the subsidizing agency retains regulatory oversight. If local officials have specific concerns about state oversight of 40B developments, we are fully prepared to address them directly. Municipalities have the right to be informed that the subsidizing agencies are fulfilling their 40B monitoring and enforcement responsibilities. ZBAs may obtain such documentation from the subsidizing agencies (e.g., copies of cost certifications and annual monitoring reports as approved by the subsidizing agency in accordance with program requirements) and the state subsidizing agencies will be responsive to all such inquiries from municipalities. Moreover, with regard to rental developments, given that many comprehensive permits impose affordability requirements in perpetuity, municipalities should appropriately document the affordability requirements that extend beyond the term of the subsidizing agency's regulatory agreement. A municipality may want to hire a monitoring agent to monitor affordability during this time period with the cost of such,agent to be paid by the owner of the 40B rental development. If you have further questions about the role of communities or local organizations in regulating or monitoring 40B developments I encourage you to consult your own local counsel, to contact the appropriate subsidizing agency, and to utilize free consulting services available through the Massachusetts Housing Partnership for the review of any pendingapplications for comprehensive permits. Monitoring agents were designated as part of the local review and approval process for New England Fund projects initiated prior to August 2002. For New England Fund projects initiated thereafter, the NEF Guidelines allow, but do not require, the Project Administrator to use a Monitoring Agent.