Loading...
0 WHALERS LANE - FAFARD DEVEL CORP - BUILDING INSPECTION . WHALER'S LANE / FAFARD DEVEL. CORP —h ,Sf Rc ., o P 1 -� L : _ : . �_ � ti ... _�,:-�,.; LET/j me jJuhlie Prapertp Department Her L 4 tiuilaina Department e ' " (One t+alem (5reen 308-743-9395 r17xt. 38 . . ICS.., Leo E. Tremblay Director of Public Property' Inspector of Building Zoning Enforcement Officer May 18� 1995 Members of the Planning Board City of Salem 1 SalemGreen Salem, NA 01970 RE: Fafard Phase 3A Condominiums Saler. MA Dear Members : i am writing as a result of an issue which has been raised in connection with the Site Pian Review Special Permit for Phase 3A of the Fafard residential development . The issue centers on the quality of construction of the buildings in the earlier phases of this development and what assurances can be built into the Planning Board's decision to ensure construction standards which are higher than those in the past. Please accept this correspondence as evidence and guarantee that the City of Salem Building Department, as currently comprised, has the expertise and interest :n reviewing and inspecting this development and anticipates a close level of scrutiny of these 20 units. Although I cannot speak to the level of inspection and involvement of past Building Departments , i would like to eliminate any concern which the Planning Board has about the quality of inspection of these units . Based on the construction concerns raised by Mayor Harrington, City Councillor John Donahue, the Planning Board, and the residents of the earlier phases, the Building Department will keep a high level of on-site review for this development. 1 would like to suggest that the Planning Board and the Building Department work closely on these 20 units, that we use Phase 3A as an opportunity for us to review the work of Fafard Companies and determine if in future, likely larger pnases, a building construction Clerk-of-the Works is necessary. In my opinion- based on the level of scruntinv which we will place on these units, a clerk is not necessary in this 20 unit phase. Sincereiy, Leo E . Trembiav Building Commissioner CITY OF SALEM, MASSACHUSETTS PLANNING DEPARTMENT �oNwr� �6 0 WILLIAM E. LUSTER ONE SALEM GREEN City Planner 01970 (508) 745-9595, EXT. 311 a�yNep FAX (508) 744-5918 TO: EO TREMBLEY, BUILDING INSPECTOR NORM LAPOINTE, FIRE INSPECTOR JOANNE SCOTT, BOARD OF HEALTH CHARLIE QUIGLEY, CITY ENGINEER PAUL TUTTLE, CITY ELECTRICIAN FROM: DEBBIE HURLBURT, PLANNING BOARD STAFF ADVISOR RE: PHASE III-A - LEDGEMERE COUNTRY (FAFARD) DATE : FEBRUARY 7 , 1995 ------------------------------------------------------------------- --------------------------------------------------------------- Attached for your review are plans for Phase III-A for the development of four six-plex units located on Whalers Lane. The Planning Board expects to conduct the first public hearing on this proposal on March 9 , 1995 . I thought it would be beneficial for the various Departments to review these plans with less time constrains . For your information, there are four phases to this residential development. The two first phases have already undergone Site Plan Review and have been constructed. The remaining two phases must undergo Site Plan Review Special Permit. Phase Three will have two separate Site Plan Reviews to it due to the request of the developer. The Planning Department has had preliminary discussions with the Developer regarding Phase 111-A. It was discussed that the Department would distribute the plans to the appropriate departments for their review. Again, the Planning Board will conduct the first public hearing on March 9 , 1995 . If you have any questions or if you desire additional information, please do not hesitate to contact me. CITY OF SALEM, MASSACHUSETTS PLANNING DEPARTMENT v��CONUIT,,O' WILLIAM E. LUSTER y` `' ONE SALEM GREEN City Planner s, - 01970 (508) 745-9595, EXT. 311 �9��NINE�H FAX (508) 744-5918 TO: --L TREMBLEY BUILDING INSPECTOR NORM LAPOINTE, FIRE INSPECTOR JOANNE SCOTT, BOARD OF HEALTH CHARLIE QUIGLEY, CITY ENGINEER PAUL TUTTLE, CITY ELECTRICIAN FROM: DEBBIE HURLBURT, PLANNING BOARD STAFF ADVISOR RE: PHASE III-A - LEDGEMERE COUNTR�(FAFARD) DATE: FEBRUARY 8, 1995 ------------------------------------------------------------------- ---------------------------------------------------------------- The memorandum which I sent you dated February 7 , 1995 stated that the Developer was constructing four six-plex units was incorrect. The Developer will be constructing five six-plex units . I apologize for any confusion which this may have caused. Again, if I can be of assistance to you, please do not hesitate to contact me. Thank you. v gttu of �ttlem, C�9lfitts��rit�z�r##s 3 s �lf ttttttittg �nttr3 Jab ( I 2 FORM A - DECISION Ms . Deborah Burkinshaw City Clerk Salem City Hall Salem, MA 01970 Dear Ms . Burkinshaw: At a regularly scheduled meeting of the Salem Planning Board held on January 6, 1994 it was voted to endorse "Approval Under Subdivision Control Law Not Required" on the following described plan: 1 . Applicant : Highland Realty Trust 2 . Lucation and Description: Whalers Lane The lot has frontage and an area 3.3703 acres. Whalers Lane is a way approved by the Planning Beard. Deeo :if property records in Essex Soutn District Registry. Sincerely, j R.2_,4-qlC)f G�w Walter B. Power , IIf ' Chairman EX\DH\BPFORMA 9 -0 44 i i ti F CL I ?o LOCUS MAP SCALE: I"=400 SANCTUARY CONDOMINIUM PL. BK. 211 PL. 61 S �St, �,tS�o•F1 I�,- I i I PLAN REFERENCES: 1. PL. BK. 127 PL. 18 APPROVAL UNDER THE SUBDIVISION C p `o SALEM PLANNING BOARD � 2. PL. BK. 211 PL. 61 'W p CONTROL LAW NOT REQUIRED 3. PL. BK. 198 PL. 67 0 o A i I, AREA 146, 809 �- S.F. 3.3703 + - ACRES i ,00 tirya ry h 1 00, I NSB, �e THE HAMLET CONDOMINIUM •t�r�y. PL. BK. 227 PL. 18 \, �0A i I CERTIFY THAT THIS PLAN CONFORMS TO THE RULES AO,ti AND REGULATIONS OF THE REGISTERS OF DEEDS. 1L117/93 FOR REGISTRY USE ONLY PLAN OF LAND \�3 n yv � � SALEM HIGHLAND RDREALTY TRUST Ess ... � n PREPARED FOR FAFARD REAL ESTATE AND DEVELOPMENT CORP . SCALE: 1 '= 40' DECEMBER 17, 1993 1 INCH 40 FEET 40 0 40 80 NORTH SHORE SURVEY CORPORATION 209 WASHINGTON STREET - SALEM, MA. \ , 47 �� r © FAFARD REAL ESTATE AND DEVELOPMENT CORP. 290 ELIOT STREET ASHLAND, MASSACHUSETTS 01721 FAFARD TEL. (508) 881-1600 FAX (508) 875-8610 Residential Sales (508)881-6662 Commercial Sales/Leasing (508)881-1512 August 18, 1995 Norman P. LaPointe Fire Inspector- Fire Department City of Salem, Massachusetts 48 Lafayette Street Salem, MA 01970-3695 RE: Notice of August 3, 1995 Phase IIIA, Mariner Village, Whalcrs�Salem, Massachusetts Dear Inspector LaPointe: I am in receipt of your letter dated August 3, 1995 concerning the installation of automatic fire sprinklers in the four-plex buildings being constructed in Phase IIIA at Mariner Village on Whaler's Lane. You are correct in your statement that the Salem Building Department has issued building permits for buildings in Phase IIIc for plans submitted without reference to the installation of sprinklers. The reason we applied for those permits and why they were issued is that The Commonwealth of Massachusetts Board of Building Regulation and Standards has found that the four-plea buildings are "Use Group R- 3" (multiple single-family dwellings) under the Commonwealth of Massachusetts State Building Code. The Superior Court of the Commonwealth of Massachusetts has confirmed this fact in a recent decision. Further, the Superior Court and Appellate Courts of the Commonwealth have also ruled that the Building Inspectors in the cities and towns of the Commonwealth are the final authority in determining what satisfies the requirements of the State Building Code for automatic fire warning systems. See Fire Chief of Cambridge et al State Chief of Cambridge et al State Building Code Appeals Board, (Kass, J.) also a 1993 case (copy enclosed). In light of the Court rulings to the contrary, Fafard Real Estate and Development Corp. proceeded accordingly. In your letter, you recite the fact that you met with our local counsel, Attorneys Serafini and Correnti, on more than one occasion. As you are aware, we requested those meetings with you to discuss the need for automatic sprinklers. .y m Norman LaPointe Page 2 August 18, 1995 At one point during our ongoing discussions, you were in agreement that the sprinklers would not be required. Subsequently, the State Fire Marshal's Office, in an administrative appeal, rendered a Decision which held that four-plex buildings require automatic sprinklers. You informed us of that Decision and clearly stated that your position was that sprinklers would now be required for the proposed four--plex buildings. It is our understanding that the Fire Marshal's Decision is now under appeal in the Superior Court and that the matter is currently pending. While we understand what you'consider to be your mandate from the state Fire Marshal's Office, we hoped that since this 20 unit phase project had been filed prior to such mandate that it would be "grandfathered" and thus exempt from such mandate. Our company has always complied with the rules and regulations imposed upon us. In this case there appears to be a difference of opinion between the State Fire Marshal's Officeand the State Building Code as defined by the Superior Court. Please keep in mind that we have not acted in an arbitrary manner. The situation requires clarification between two departments of the State, and it was on that basis, as well as the recent court decisions, the law applicable at the time of filing this phase, and the interpretations of the Salem Building Inspector that we acted. Prior to your taking any action in this matter, we would like to meet with you and the City Solicitor to more fully explain our position and to discuss our reliance upon the building permits issued by the Building Inspector. Would you please let us know through Attorney Serafini's office when we could meet. Ve truly yours, i i �aul J. Beattie/ Attorney cc: Robert A. LeDoux, Esq. cc: Leo E. Tremblay cc: John R. Serafini, Sr., Esq. cc: William E. Luster Lapointel/PB m a CONSULTING ENGINEERS 157 Woodridge Road 1. Holden, MA 01520 508-829-9062 Date: Aug. 15, 1995 Mr. Leo Tremblay Building Inspector One Salem Green Salem, MA 01970 Re: Foundation Evaluation Project: The Short Ell Ultra Fafard Real Estate & Develop. Corp. 290 Eliot St. Ashland, MA 01721 Dear Building Inspector: In my opinion, the concrete foundation support system as shown on the plans is adequate. Unreinforced eight inch thick basement walls can span vertically eight feet above the top of the wall footing to the first floor. In doing so, tension stresses in the concrete will remain within limits assuming little surcharge and full earth pressure at the exterior. In addition, the unreinforced 12"x 24" wide wall footing should also be sufficient for average allowable bearing earth pressure. In all cases of vertically spanned walls, a word of caution is advisable to see that the contractor Installs s alts both the basement floor slablus the first floor framing system P g Y and has them able to receive thrust before entirely backfilling against the basement wall. If you should have any questions on this matter, please give me a call. Sincerely, eth N. Arakelian, P.E. VA or+r!` o+ SETH a N. S ARAKELIAN w No.29499 O u� �.o�F0ISTER�per iL :CUNDI CITY OF SALEM . MASSACHUSETTS ROBERT A. LEDOUX Legal Department LEONARD F FEMINO City Solicitor 93 Washington Street Assistant city Solicitor 5067453383 .Salem, Massachusetts 01970 e0892ta9M September 1, 1995 Mr. Leo E. Tremblay Inspector of Buildings One Salem Green Salem, MA 01970 Re: Fafard Planned Unit Development Phase IIIA Dear Mr. Tremblay: I have reviewed the materials you sent to me regarding the sprinkler issue in Phase IIIA of the Fafard Planned Unit Development. On the basis of my review of the Superior Court decision of Judge Volterra, it is my opinion that the R-3 Use Group classification which you have made in this situation is correct, and further that M.G.L. Chapter 148, Section 261 does not apply to that Use Group. The Superior Court decision is the law of the Commonwealth at the present time. I have also reviewed the matter involving the State Fire Marshall's office and Pulte Home Corporation. This case has been officially decided by the Superior Court, and until such time as there is a contrary decision by the Superior Court and the Appeals Court, the petitioner, Fafard Company, must be governed by the law which is represented by their particular case. September 1, 1995 Page 2 . In conclusion, it is my opinion that, based upon the existing law, your office has the authority to make the appropriate designation of Use Group classification, and that M.G.L. Chapter 148, Section 261 does not apply to Use Group R-3 . Very�tpruy yours, Obert A. Led City Solicitor RAL/ljs c.c. The Honorable Neil Harrington City Planner, William Luster Fire Chief, Robert Turner Fire Marshall, Norman LaPointe John R. Serafini, Sr. ' Ctu of Sttlem, Htt sttrl� sk�##� Planning Poarb 11Da6 624H `56 T�daP��w�ccN"" .CIT" 0: (1�tte �tt1em (1�rePtt c t t <<nsc� ,, ac� Decision SITE PLAN REVIEW - PHASE 3A THE FAFARD COMPANIES 290 Eliot Street Ashland MA On Thursday, March 9, 1995, the Planning Board of the City of Salem opened a public hearing regarding the application of the Fafard Real Estate and Development Co (Applicant), 290 Eliot St. Ashland, MA, under Section 7-18, Site Plan Review, of the Salem Zoning Ordinance, with respect to the construction of twenty-units within Phase IIIA of a development plan entitled, "Ledgemere Country- Mariner Village, Phase 3A, in Salem, MA dated January 27, 1995, revised March 31, 1995, revised April 24, 1995. Board member Kosta Prentakis recused himself from hearing this petition. The public hearing was closed on May 18, 1995. At a regularly scheduled meeting of the Planning Board held on May 18, 1995, the Board voted by a vote of seven in favor, none opposed, to approve the application as complying with the requirements of Site Plan Review as stated in the February 7, 1986 Planned Unit Development Special Permit, subject to the following conditions: 1. Conformance with Plan Work shall conform to plan entitled "Development Plan, Ledgemere Country-Mariner Village, Phase 3A, in Salem, MA" prepared by the Fafard Real Estate and Development Corp., dated January 27, 1995, revised March 31, 1995, revised April 24, 1995. Containing sheets 1-5. 2. Amendments Any amendments to the site plan or.waiver of conditions contained within shall require the approval of the Planning Board. 3. Curbine Sloped granite curbing shall be installed as shown on Sheet 2 of plan entitled "Development Plan, Ledgemere Country-Mariner Village, Phase 3A, in Salem, MA" prepared by the Fafard Real Estate and Development Corp., dated January 27, 1995, revised March 31, 1995, revised April 24, 1995. 4. Maintenance 2 Ply '95 Har 25 6 5 a. The applicant shall employ an acceptable method or means for the holdipf pc} 04Pp49f trash after site development with a copy of this method sent to the rP�I u��r eBa¢tmint and Health Department in writing for their approval. b. Refuse removal, road and ground maintenance, and snow removal shall'be the responsibility of the developer, his successors or assigns. C. Winter snow in excess of the snow storage areas on the site shall be removed off site. 5. Utilities Utility installation shall be reviewed and approved by the City Engineer prior to the issuance of building permits. 6. Landscaping Landscaping shall be in accordance with plan entitled, "Development Plan, Ledgemere Country- Mariner Village, Phase 3A, in Salem, MA" prepared by the Fafard Real Estate and Development Corp., dated January 27, 1995, revised March 31, 1995, revised April 24, 1995. a. Maintenance of landscape vegetation shall be the responsibility of the developer, his successors or assigns. b. After all project landscaping is completed, the applicant shall be required to add further landscaping if such is required by the City Planner. - C. The applicant shall flag all trees to remain in Phase IIIA and depict them on a site plan. The plan shall be submitted to the Planning Department for review. All tress which are being removed and are over 5" in caliper shall be approved by the City Planner with input from the City of Salem Landscape Architect. It is understood that in every instance where a tree over 5" in caliper can be saved it will be the expressed interest of the applicant and the City of Salem to save such tree. d. The approval of Site Plan Review for Phase 3A shall not amend any earlier conditions of approvals which require the completion and perpetual maintenance of the "Ancient Trail". The Planning Department shall assist the Applicant in the layout of the location of the walking trail and suggest appropriate screening to ensure privacy for dwelling units. The applicant shall provide whatever screening is deemed necessary by the Planning Department. e. The applicant shall agree to provide a bond, cash security, or covenant in an amount determined to equal the cost of landscaping, sidewalks, paving and tree plantings, inclusive of Whalers Lane. Amounts shall be determined by the City Planner. 7. Chimneys All chimneys in Phase 3A shall be constructed of solid masonry with 4" brick exposed to the exterior. 8. Exterior Sidine Material Hnr Z5 6 25 �F .� '35 Exterior siding material shall be reviewed and approved in writing by the C}ty,PlAntled�ior to the issuance of a Building Permit. CIIY 0 01 . ;• 9. "Overall" PUD Special Permit All applicable conditions set forth in the "Overall" Planned Unit Development Special Permit dated February 7, 1986, shall be strictly adhered to. 10. Phase 1 and Phase 2 Approvals All conditions set forth in both Phase 1A and 1B approval dated March 26, 1986, and April 17, 1986, and Phase 2 approval, dated April 16, 1987, which are pertinent to Phase IIIA shall be strictly adhered to. 11. Construction Vehicle Access/Construction Parking and Staging Area a. All construction vehicles shall utilize the North Access Road to Swampscott Road. However, in the event that severe weather makes the access road impassable or unsafe, construction vehicles shall be allowed limited use of Whalers Lane, for access to Phase 3A for only the time it takes to make such road passable. Any such use of Whaler's Lane shall be approved by the City Planner. All approved access to Whalers Lane shall be from Whalers Lane at First Street, closest to Swampscott Road. b. Construction parking and staging area shall be located on the plateau above the Swampscott Road slope, directly across from Phase IIIA.- C. IIA:c. The applicant shall include a restriction in all subcontractors contracts stating that subcontractors must utilize the access road and park in the designated area adjacent to Whalers Lane. Evidence of such restriction shall be submitted to the City Planner. d. There shall be no parking on Whalers Lane by any construction vehicle or passenger vehicles of contractor or subcontractors. e. During construction, a fire lane shall be maintained at all times on Whalers Lane under the Fire Department's supervision. 12. Whalers Lane Completion a. Finish pavement on Whalers Lane shall be completed in its entirety, immediately upon completion of Phase IIIA, weather permitting, or July 30, 1996, whichever is earlier. b. . Sidewalks on inner loop of Whalers Lane shall be completed immediately upon completion of Phase IIIA, weather permitting, or July 30, 1996, whichever is earlier. C. Street trees shall be planted along Whalers Lane from Majestic Way to Tybee Lane and C. Street trees shall be planted along Whalers Lane from Majestic Way to Tybee Lane and from Nightingale Lane to Patriot Lane in the Spring/Summer 1995, but no later than September 30, 1995. Trees shall be a minimum of 31/7" caliper and planted 50 feet on center. d. Laterals for Phase 3B shall be installed in Whalers Lane prior to the finish pavement being completed to ensure that the road will not be cut into after final paving is completed. e. If Whalers Lane is damaged during construction of Phase 3A and/or 3B, the applicant shall restore the pavement to an acceptable condition as required by the City Planner. 13. Tybee Lane There shall be no construction or permanent access to Phase IIIA from Tybee Lane. In addition, there shall be no parking along Tybee Lane. Applicant shall, upon written approval of the Phase 2 Condominium Association agree to plant a row of 8-10 foot evergreens planted 10 feet on center. The plantings shall be on Phase 2 Condominium Association property and shall be their responsibility in perpetuity. If approval from the Phase 2 Condominium Association is not received by July 30, 1996, this condition shall not be required to be met. 14. Building Lighting The applicant shall utilize long-life bulbs in the exterior building lights. Such lights shall be approved in writing by the City Electrician and City Planner prior to installation. 15. Central WateringSystem ystem The applicant shall work with the Certified Property Manager and the City Planner to develop a method for the watering of the common areas in Phase 3A. 16. Professional Certified Property Manager The applicant shall hire a Certified Property Manager (CPM) as managing agent for Phase IIIA following completion of Phase IIIA. 17. Blastine a. All blasting to be done in accordance with 527 CMR 13 and City of Salem Blasting Ordinance. It is understood that if additional seismographs are needed to monitor blasting, the Applicant shall provide them. The number of seismographs shall be determined by the City's Fire Marshall. b. , There shall be no blasting on Saturday. C. The applicant shall provide written notice to all residents of the Hamlet and the Sanctuary at least 72 hours before the start of blasting. In addition, the applicant shall post notices of blasting on mailbox areas in Phases I and 2. 18. Fill Material Fill material utilized for Phase 3A shall not be taken from the proposed Phase 3B or Phase 4 areas. All fill material shall be brought in from off-site and shall be in accordance with the regulations of the Board of Health. 19. Board of Health All work shall comply with the requirements of the Board of Health. 20. Fire Department All work shall comply with the requirements of the Salem Fire Department. 21. Building Inspector All work shall comply with the requirements of the City of Salem Building Inspector and as further amplified by his attached letter dated 5/18/95. 22. Clerk of Works A Clerk of Works shall be provided by the City and paid for by the applicant as deemed necessary by the City Planner. Clerk of Works to report to Building Inspector on any problems he thinks are against the building code. 23. Assurance of Adherence to Conditions of this Decision A financial assurance system shall be established to ensure that the conditions contained in this decision are adhered to. The assurance system shall collect funds from the Applicant if certain conditions contained herein are not met. The donation will be set at $100.00 per offense, to be paid within 14 days of notice of such offense, with a total ceiling for all donations not to exceed $15,000. In addition, outstanding fees for offenses shall be paid prior to the issuance of Certificates of Occupancy. The financial assurance system shall be under the administration of the Salem City Solicitor. The donations shall relate only to conditions relating to contractor and subcontractor access and parking, blasting notification, street sweeping, work-hours and cleanliness of existing roadways. Upon completion of Phase 3A, any donations which are collected shall be distributed on a pro- rated share, among the Condominium Associations of the preceding phases of this development and shall be used at the discretion of the Condominium Associations. 24. Construction Practices All construction shall be carried out in accordance with the following conditions: a. No work shall commence before 8:00 A.M. on weekdays and on Saturdays. No work shall continue beyond 5:00 P.M. There shall be no work conducted on Sundays or holidays. Inside work of a quiet nature may be permitted at other times between the hours of 7:00 A.M.-9:00 P.M. Monday-Friday, excepting Saturdays and all day Sunday. b. All reasonable action shall be taken to minimize the negative effects of construction on abutters. Advance notice shall be provided to-ail abutters in writing at least 72 hours prior to commencement of construction. C. All construction vehicles shall be cleaned prior to leaving the site so that they do not leave dirt and/or debris on roadways as they leave the site. d. The developer shall conduct street sweeping on Whalers Lane on a weekly basis, or as deemed necessary by the City Planner. e. All construction shall be performed in accordance with the rules and regulations of the Planning Board, and in accordance with any and all rules, regulations and order. 25. Violations Violations of any conditions may result in revocation of this permit by the Planning Board. I hereby certify that a copy of this decision and plans have been filed with the City Clerk and copies are on file with the Planning Board. This decision is rendered in accordance with the site plan review process as outlined in the February 7, 1986 Planned Unit Development Special Permit. r . owerr,III 1�ait Chairman jm\bd\Fafard.drd BUTTERWORTH & O'TOOLE, INC. P.O. BOX 8294 SALEM, MA 01971-8294 ADJUSTERS/APPRAISERS FOR INSURANCE COMPANIES ONLY TELEPHONE (978)741-5731 FAX (978)740-9109 August 04 , 1999 FORM OF NOTICE OF CASUALTY LOSS TO BUILDING UNDER MASS. GEN. LAWS, CH. 139, SEC. 3B TO: Building Commissioner or Board of Health or Inspector of Buildings Board of Selectmen City/Town Hall City/Town Hall ADDRESSES Salem, MA 01970 Salem, MA 01970 RE : Insured: Hamlet Condominium Association Address : Whalers Lane Salem, MA 01970 Policy No. : CAU101971-2 Loss of : 7/9/99 File or Claim No. : 98-0912 Claim has been made involving loss, damage or destruction of the above captioned property, which may either exceed $1, 000 .00 or cause Mass. Gen. Laws, Chanter 143, Section 6 to be applicable. If any notice under Mass. Gen. Laws, Ch. 139, Sec. 3B is appropriate, please direct it to the attention of the writer and include a reference to the captioned insured, location, policy number, date of loss and claim or file number. If no reply is received from your office within ten days, we will assume you have no liens of any type against this property and we will recommend to the insuring company that this claim is paid. Edward Welch Adjuster of 1-1,zh1Pm. ifittSliar4usetts Puhlir Dlrapertu Department 'Building Department lone ealrm 6rern 508-745-9595 Ext. 380 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer March 7, 1995 Serafini, Serafini and Darling 63 Federal Street Salem, Mass. 01970 Dear Pr. Correnti : I have reviewed Fafard Planned unit Development of Phase 3, four plex style dwelling units. I am classifying them in Use Group R-3, multiple attached single family dwellings. The dwelling units are to be separated per the State Building ode required fire separation assembly. If this office can be of any further assistance, please do not hesitate to call. Sincerely, Leo E. Tremblay Inspector of Buildings LET: scm 7XL - 71-HE MASSACHUSETTS STATE BUILDING CODE 910.2 Mixed uses: When a building contains more than one occupancy, and each part of the building is separately classified as to use, the mixed uses shall be completely separated with fire separation walls as specified in Section 313.0. 910.3-Multiple single-family dwellings: Single-family dwelling units (Use Group R-3) located above or adjacent to other single-family dwelling units (Use Group R-3) shall be considered as one building classified as Use Group R-3 for the purpose of determining the applicable provisions of this code,--provided each dwelling unit is completely separated from the adjacent dwelling unit(s) by fire separation wall(s) and floor/ceiling assemblies of not less than 1-hour fireresistance rated construction and each unit has independent means of egress. 910.4 Exits: Fire separation walls required for the enclosure of exits and areas of refuge shall be constructed of masonry, reinforced concrete or any other approved noncombustible materials having the minimum fireresistance rating prescribed by Table 401. Such walls, where permitted to be of combustible materials by Section 816.9, shall comply with Section 910.4.1. 910.4.1 Combustible stair enclosures: Where permitted by Section 816.9, combustible stair enclosures shall be constructed of approved combustible assemblies protected with component.materials to afford the required fireresistance ratings; shall be continuous through combustible floor construction; and shall provide an unbroken fire barrier in combination with protected floors, ceilings and fire doors, separating the exits from the unprotected areas of the building. Such enclosures shall be firestopped to comply with Section 921.0. 910.4.2 Openings for lighting: Openings for the purpose of providing light in combustible stair enclosures are permitted to be protected with wired glass with single panes not more than 360 square inches in area and a total area in one story of not more than 720 square inches. Such light panels shall comply with the provisions of Section 919.0, and shall be contained in stationary sash and frames of steel or other approved noncombustible material. 910.5 Openings: Exit doors located in fire separation walls shall be limited to a maximum aggregate width of 25 percent of the length of the wall and the maximum area of any single opening shall not exceed 48 square feet. 910.5.1 Protectives: All opening protectives in fire separation walls shall comply with the provisions of Section 903.0 and shall have the minimum fireresistance rating as set forth in Section 916.0. 910.6 Continuity: All fire separation walls shall extend from the top of the fireresistance rated floor/ceiling assembly below to the fireresistance rated floor/ ceiling or,roof/ceiling assembly above,unless otherwise provided for in this code, and 9-16 780 CMR - Fifth Edition FIRE RESISTIVE CONSTRUCTION SECTION 909.0 FIRE WALL OPENINGS 909.1 General: Openings in fire walls shall not exceed the limits in size and area herein prescribed, and the opening protectives shall conform to the provisions of Sections 903.0 and 907.0. 909.2 Size of opening: Except in sprinklered buildings, an opening through a fire wall shall not exceed 120 square feet in area, and the aggregate width of all openings at any floor level shall not exceed 25 percent of the length of the wall. 909.2.1 First story: Where the entire first story areas on both sides of a fire wall are provided with an approved automatic fire suppression system complying with the requirements of Article 10, the maximum allowable size of openings on the first story of the building designed for the passage of trucks shall be increased to 240 square feet in area with a minimum distance of 3 feet between adjoining openings. Such openings shall be protected with approved automatic opening protectives of 3-hour fireresistance rating, and provided with an approved water curtain in addition to all other requirements. 909.3 Opening protectives: Every opening in a fire wall shall be protected with an approved automatic opening protective assembly as herein required or the approved labeled equivalent in accordance with Section 916.2, except as provided in Section 814.2.1 for horizontal exit openings. 909.3.1 Hold-open devices: Heat actuated hold-open devices shall be installed on both sides of the wall, interconnected so tl.at the operation of any single device will permit the door to close. Heat detectors or fusible links shall be installed at the door opening and at the ceiling in conformance with NFiPA 80 listed in Appendix A for the particular type of door to be installed. Swinging fire doors, where the ceiling is less than 3 feet above each side of the opening, are permitted to be actuated by a single fusible link incorporated in the hold-open arm of an approved automatic door closer. Doors opening in a means of egress shall be closed by an approved door closer, or shall be closed by actuation of a smoke detector located in conformance with NFiPA 80 listed in Appendix A. SECTION 910.0 FIRE SEPARATION WALLS 910.1 General: Fire separation walls used for subdividing purposes ur oses shall be constructed of the types of materials and shall have the minimum fireresistance rating as prescribed by Table 401 for the type of construction, except as provided in Section 910.4. 780 CMR - Fifth Edition 9-15 FIRE PROTECTION SYSTEMS iii. A smoke detector shall not be required to be located in or within six 6 feet of a kitchen or cooking area. This provision does not ( ) g ( preclude installation in these areas.) 7. Approved fire detectors also shall be located within the structure to comply with the following minimum requirements: a. Corridors, lobbies and exitway discharge: All lobbies, common corridors, hallways and exitway access and discharge routes shall be provided with approved smoke detectors with not more than a thirty y (30) foot spacing between detectors. b. Inside residential unit entrance doorways: All residential unit doorways to corridors or hallways shall be provided with an approved heat detector located not more than six (6) feet inside the doorway and in conformance with the requirements of NFiPA 72E as listed in Appendix A. C. Other rooms: All rooms one hundred (100) square feet in area or more,not in residential units,shall be equipped with approved heat detectors or smoke detectors located in accordance with the requirements of their listing and in conformance with NFiPA 72E as listed in Appendix A. 8. All detectors in Section 1018.3.4.1, Item 7, shall be arranged to activate the building fire alarm in accordance with Section 1018.3.4.3. 9. Any building of R-1 and R-2 use groups that is completely protected by an approved automatic sprinkler system may omit the detectors required in Section 1018.3.4.1, Item 7, provided that water flow will sound the building fire alarms in accordance with Section 1018.3.4.3. When a building in use group R-1 and R-2 is completely sprinklered, sprinklers may be omitted in closets and similar spaces which are located within an individual dwellingunit when the least dimension of such spaces is not P greater than thirty (30) inches and the floor area within such spaces does not exceed twenty-four (24) square feet. Exceptions: 1. See Section 637 for types of systems required in R-1 detoxification facilities. 2. Required smoke detectors shall not be deleted when an approved automatic sprinkler system is installed. 1018.3.4.2 .R4.and R-4 use groups, Including manufactured homes:. 1. �All buildings which are defined by this code as one or two-family ,'dwellings shall contain a Type III system in conformance with Section 780 CMR - Fifth Edition 10-33 THE MASSACHUSETTS STATE BUILDING CODE 01018.3:4:3 with smoke detectors located as required in Section 1018.3.4.2, Item 2, of this section and in accordance with NFiPA 72E as listed in Appendix I. 2. Smoke detectors shall be located to comply with the following minimum requirements: a. Minimum number of detectors: i. Not less than one (1) approved smoke detector shall be provided on the highest habitable level and on each floor, story or level below, including basements or cellars. ii. For any floor, level or story exceeding twelve hundred (1200) square feet in area, one (1) approved smoke detector shall be provided for each twelve hundred (1200) square feet or part thereof. b. Location of detectors: i. One (1) approved smoke detector shall be located outside of each separate sleeping area. By sleeping area is meant the area or areas of the family living unit in which the bedrooms (or sleeping rooms) are located. Bedrooms (or sleeping rooms) separated by other use areas, such as kitchens or living rooms (but not bathrooms), shall be considered as separate sleeping areas for the purposes of this regulation. ii. One (1) approved smoke detector shall be located on the ceiling near the base of, but not within, each stairway. iii. A smoke detector shall not be required to be located in or within six (6) feet of a kitchen, cooking area or garage. (This provision does not preclude installation in these areas.) C. Combined coverage: Smoke detectors required by Section 1018.3.4.2, Item 2.a, may be used to fulfill the requirements of Section 1018.3.4.2, Item 2.b. 1018.3.4.3 Type of systems: Systems shall be one (1) of the following types as required by this section: 1. Type I: A Type I system shall be installed in conformance with the Massachusetts Electrical Code (527 CMR 12.00) and NFiPA 72A as listed in Appendix G and Appendix A, respectively. A Type I system shall include an approved secondary source of power and incorporate an annunciator at the grade level located as directed by the local fire department. 10-34 780 CMR - Fifth Edition a , Massachusetts t.ewyere weekly,reay 3, ifrn3 Cite Ihll l'agu 21 M.LW.2438 ll 1 i Appeals Court _ I Municilrial ' __- state Building Code- °Automatic Fire Warning Systems 'Sven taken in isolation, it is lees than Where it must be determinedwhat satis• certain thaltlteverb'enforce'in126Bought fies the reQuirementa of the State Building to read a*comprehending more than duties 'Consistent with these statutory Prov;- Code for automatic rite warning systems, Of0ompliance inspection and taking action sons,the Beard in this case ruled that the _the imal authority for such a decision teat@ to secure compUance if nancomptiance is building inspector is the responsible tndi- tutderatatelawwithaPhunicipa)ity'i;build. discovered.Perhaps the most eogentargu• vidual who controls the issuance of the Ing inspector,not with its fire chhr. . menttobemadeforthe fire thiefisthat the building permit and ... must ... take into in reaching We conclusion, we affirm last Paragraph of§26B provided a right or account'the complex system of State stab rulingsefthe Building Code Appeals Board - appeal Oem A fire chiefs action,including utas which 'regulate the construction of and Superior Court. anynterpretatim3 under§26B,tothe Board. buildings within the Commonwealth-' In Background Why,one might Oak(Although the rite chief rraiewingthe deasionofanadministrative 'On the basis of language appearing in does not),need there be a right of appeal agency we give weight to its interpretation ' G.L.e. 148,§268,the(plaintiff)fiir@chief of GomanInterpretation ofafirechiefifafire of the statutes under which itoperstesand Cambridge claims exclusive authority to chief does not have the last word on Inter• the regulation@ which ithea formulated.... ! determine what satisfies the requirements preting the Code? Among the answers to That principle, of course, is one of defer• of the State Building Code for automatic tihatquestion are that the fire chief may he ence,not abdication. ...Here,however,the fire warning systems. We conclude, con• involved in interpreting requirementsth�t d,arionofthe Board isnotarbitrary,capri- formably with a decision of the State do not involve the Code,such es whether a sous, or unreasonable but is to harmony Building Cale Appeals Board And the deci• bmldtngisusedror residential ptuposea,or with the etstu4a for the administration of sion of a Superior Court judge on review may be interpreting what the approved the Cade which we have described; the underG-L.c.30.A.§14,thatthe Rost author. plans and specifications for a building re- Board has reasonably resolved a surface i . to deterndnewhalconstitutescom compliance quire.Inflt{ecase,whenthefirechtefmade inconsistency in 1268. tY an interpretation of the Code at variance with the Code resides with the building with that of the building commissioner, *On ne0cMview woi0pvetaken arthe case,it inspector ofthemunicipality,whoinCarn- M.LT. timelyexercisedits §268rightof theintecessationorihefirewrrninessof bridge is the commissioner of buildings end appeal to the Board _ the interpretation or the bre warning sys- housing (the building commissioner). Ac- •►t Is in the 1 tem provisions of the Code made by the cordingly, we aMnin the judgment of the laws and regulations context of building commissioner end the Board. The Code Superior Court gulations that the position of interpretation problem,a matter of nuance, Meobjectof the controversyisadomti- the rirechief isexposed Aswrong,Section 3 is a classic example of when the expert taryconstructionprojectundertekenbylhe OFG.L.e. 143 dehljibiiteg the building com- tcetutieal knowledge of An administrative '4essachusetts Institute of Technology nuaeianer ae the'Administrative chief for agency comes to bear and should not be I rd.i.T.). Although the artava of the Code administering And enforcing the Code That disturbed in the absence of pow'erf,l evi• i dispute are Interesting, we doubt that it authority Is restated to 780 Code Mass. dente to the contrary. We found no such will advance the jurisprudence of the Com- Regis.6107.2(1980),which provides that a evidence in the record of this case. monwealth to elaborate upon them. bwidhngdepartmentshallhave anadmin. 'Judgment affirmed.* Distilled, the question is whether as the istrative chief responsible for the Fire ChlefofCambridge. et al. a Slate fire chief Inmate, the Code requires sprin. administratlon and enforcement of (the Building Code Appeals board (1,ou•yers kler flow devices connected to an Codel:Farther,780 Code Mim,Rep.Ito$.I Weekly No. 11.06993)(6 pages)(Kass,J J annunciator panel which would provides fhat ltlbe building commiasioaer p uld show the Case heard by John PaulSullivan,J. . shall enforce all the provisions of the h S xonelawhichAnalarmlhadbeenaetivated, Code end p ( (34Afass.App.Ct.381)BirgeAlbrightjor or,As the building commissioner has ruled, l any other ApplicablelSltatestst- the plaintiffs;Jeffrey Sutape and James M. it satisfies the Code to install water flow uW rulse and regtdehiouerar ordfnanoea Whalen for intervener Massachusetts!nett• devices which trigger audible rite alarms And 6-law"and act on any question Fels- tote of Technology;Anthony B. Penski for throughout the entire building and would tiI to the mode ormaanerofeo"truction. defendant State Building Code Appeals Identify,on the master Annunciator panel, ...'iltobe statutory Board tons Present but did not argue(Case in which particular wing a sprinlder had o ryprovisions deal ng par, No. 91•P•1309). gone o6. The system the fire cider prefers titularly with the promulgation of the Code would identify more precisely where a fire and Its administration, G.L.c, 143, 1193- { appeared to be burning." 100,emphaelxe as a goal attaining uniform Analysis Statewide standards, ...So it in that G.L.c. 'Whet the 6re chief fire upon is a one- 143,§95(a).as inserted by St. 1984,ha 348, sentencepAragreph{nO.L.c. UB,§26B,as §l0,provides that the Stat.eBoardofBuild• ' appearing in St. 1976, c. 676, ¢2, which mg Regulations and stanStandards a has,as an e- i provides:The head of the Ore department ae�ve'�onorm standards and require- provides: for con as defined in section one shall enforce the compatible en and construction materials,compatible with accepted sten• Provisions of this section.'$action 268 pre- dards of bngineering And fire prevention i scribes that a building occupied for practioee,energy conservation and public residential purposes which to less than sev safely.' enty feet high shall ba protected with an approved automatic fire warning system in accordance with'the Code.Such a ey3014 , §26B gees on to say,'shall include the fear i tures of automatic smoke detection in conjunction with the approved fire deter- tion devices.' y,December 6,1993 Cite this Page 22 M.LW.626 Cite this Page 22 M.LW.627 OPINIONS .u: TH Allen u. Holyoke Hospital, 1398 Mass. 372 OfAny Opinion (1986)),the Supreme Judicial Cnurtinter- Superior Court preted the above language to require the Late ,EnY4 trial judge to'decide whether disclosure of that information would be an unwarranted ?shall provide the Building Inspector with To invasion of the plaintiff's privacy,' in the ; such certifications as are required by the E D ling any communication, wherever p�cularcircumstances ofeachcase. ... TownofAshlandfrom the FireDepartment OF de,between said patient and apsycho- Accordingly,an in camera review of the :for the granting of a Certificate of Occu- do not rapist relative to the diagnosis or treat- documents by the court will be necessary . panty." ■F rut i thepatient'smentaloremotional to determine whether this criterion is met" F4brd Real Estate andDeuelopment Cor- Mail dition.Theprivilegegrantedhereunder McCue, et al. u. Kraines,et a[. (Lawyers `poration a. Karayinnes, et al. (Lawyers there dl not aPP1Y any of the following cum- Weekly No. 12-257-93)(8 pages)(Fremont- Weekly No.12-258-93)(15 pages)(Volterra, charg, ninotap y (c) In any Proceeding, Smith,JJ(Middlesex)(Civil Action No.90- Fax ex_ J.)(Middlesex)(CiuiZAetfonNo.93.5878). 7264E): f ,t one involving child-custody adoption f gyp' adoption consent, in which the patient + + + roduces his mental or emotional condi- ,as an element of his claim or defense,X Administrative --a Wills And Trusts d the judge ... finds that it is more im- Asset EqUaIlZatlon ;cant to the.interest of justice that the State Building Code Appeals nmunication be disclosed than that the Board -`Four-Plex' Housing - Agreement - Permitted And ing the ationship between patient and psycho-. $ rinl(IerS Non-Permitted Uses Burke. rapist be protected.'... ( Where (1) the State Building Code Ap- Where a trust agreement and an asset Trust A 'I conclude,however,that c.233§20(c)is equalization agreement were executed on ties oth t applicable for the same reason that C. peals Board ruled that"four•plex design" ! the same day,I hold that the asset equal- Equali; 2,§135B(c)is inapplicable,i.e.,that plain- homes being erected by the plaintiff in ! ization agreement(1)may not be used to nanciai is have not made their mental or emo- Ashland were'Snultiplesingle-family dwell- does no ings"of the R-3 type,(2)the Board went on vary the terms of the trus nal condition an element of their claim, t agreement,but oder the rationale of Sahree a United from this to Wile that the homes were not (2) may be admitted on the issue of ization to subject invasions of a state law(G.L.c. whether the trustee's refusal to distrib- -oth. of Carpenters and Joiners, [126 sub j P R.D.422(D.Mass. 1989)1. ... 148,§26I)requiring the installation of au- ute the trust's assets(at the beneficiary's "G.L.c.66A requires that state agencies tomatic sprinkler systems in multi-unit death)without instructions from a court aintain procedural safeguards to ensure residential structures of four or more units was a willful default or resulted instead and (3) the Board's decision was not ap- from an honest doubt regarding the ,at personal data is not revealed, pursu- proper distribution of trust principal in it to legal process, absent notice to the pealed by the defendant Ashland fire chief the face of two conflicting, and simulta- its subjectand an opportunity for the said or codefendant inspector of buildings,I hold neouslyexecuted,documents. abject to object to disclosure.The statute that the Board's rulings were binding on Background so prohibits such an agency,pursuant to the fire chief and building inspector. "Vincent Burke,Jr.,Paul Burke,and Ri- c) from divulging any personal data with- Accordingly,I order"the Chief of the Fire chard Burke are the children of Vincent ub'ect'unless Department of the Town of Ashland ... to and Helen T. Burke. Vincent it'Che approval of the data s 1 of these four- Burke, Sr. a make immediate inspectionske also had a authorized statute or Burke Sr.and Helen T.Bur i ions which a Y lex'.units of the Workmen's Circle devel- dions which are consistent with the Dur- P [plain- and Patricia,who died in the 1960's ores of this chapter....' opmentinAshland as designated by[p and was survived by her husband Charles "While the statute does not apply to'pub- tiff] Fafard[Real Estate and Development Sullivan, and three daughters. Vincent c records,'G.L.c. 4, §7 exempts from the Corporation]; such inspections are re- Burke,Sr. died in 1981 leaving substan-- efinition ofpublic records;data'relating stricted to the class of concerns appropri- tial assets to Vincent Burke, Jr., Paul o a specifically named individual,the dis- ate for Use Group R-3;and,if the appropri- Burke Richard Burke and Sullivan, as losure of which may constitute an unwar- ate concerns of the Fire Chief are ad- Trustee for his daughters. However, anted invasion of personal privacy.' In equately addressed, then the Fire Chief Vincent Burke, Sr. failed to adequately provide for his wife Helen T. Burke. "On January 26, 1983, the plaintiffs [Betty-Jo Burke,Vincent W.Burke Jr.and .Margaret E. Burke] and Sullivan trans- ferred stock to the defendant[Thomas D.] LETTHE.SYSTEM -Dolan,as Trustee,to establish a Trust for WORK FOR YOU the benefit of the plaintiffs'motherHelen T. Burke. The Trust,Trust f/b/o Helen T_ Burke,contained the following provision: 'Upon the death of Helen T. Burke this trust shall terminate, and the principal of the trust estate shall be paid and dis- tributed to the Grantors in proportion to their contribution to this Trust.'The Trust Agreement also contained an exculpation clause which provided that, 'the Trustee shall only be liable for his own willful de- fault and not for honest errors of judg- ment.' In addition, the Trust Agreement containedintegration clause which / ' ® ■ W provided that, 'this trust is irrevocable, WILLIAM F.N%1:1.1) t7l?/elf �TANLEISHI %fA\. P.j: [HONIAS C. MPONE ` '11f 111i1 THOM 4S 1.. POGEH Sacrriery TEL: (61 7) 7273200 FAX: (617) 227-1754 STATE BUILDING CODE APPEALS BOARD Docket #93-076 Date: July 16, 1993 -A In accordance with MGL c143, Section 100 and the Commonwealth of Massachusetts State Bui!C`ng Code, this Appeals Board has found the following: The appellant, Ledgemere Land Corporation, on May 6, 1993 appealed to this Appeals Board the decision of the Building Official, Town of Ashland dated April 12, 1993. On June 24, 1993, a public hearing was held in Boston before members of the State Board of BuH-:ng Regulations and Standards who acted as the State Building Code Appeals Board in which a majority of the said Appeals Board found in its opinion the enforcement of the Massachusetts State Building Code would not do manifest injustice to the appellant and the relief requested would not conflict with zhe general objectives of the State Building Code and any of its enabling legislation. There were present at the said hearing: C.I. Dinezio, 400 Washington Street, Suite 402, Braintree, MA 02194-4729 Paul J. Beattie, 290 Elliot Street, Ashland, MA 01721 Joseph M. Trolla, 290 Elliot Street, Ashland, MA 01721 Robert J. Hill, 101 Main Street, Ashland, MA 01721 000046 STATE BUILDING CODE APPEALS BOARD Docket Number: 93-076 Date: July 16, 1993 Mr. Douglas Cole Smith removed himself from the proceedings citing personal acquaintance with the i appellant or a representative of the appellant. The appellant is seeking the reversal of the building official's order requiring the installation of automatic sprinkler systems for the proposed construction of multiple single family attached dwellings (Use Group R-3). The appellant stated that twenty five hundred units of this type have already been constructed and permits for a further eight hundred are outstanding. The appellant displayed photographs of similar construction to the Board. The appellant's representative (the appellant) described the proposed construction as multiple attached single family dwellings in units of four (four plex style). The appellant testified that the dwelling units- are nitsare separated by the required fire separation assemblies and,that each dwelling has its own independent means of egress and that the units do not share common hallways or exits. The appellant testified that the buildings are single family dwellings and, as such, are classified as Use Group R-3 (Multiple Single Family Dwellings) in the determination of State Building Code (the Code) requirements. The appellant testified that the Town of Ashland voted to accept the provisions of MGL c148 s 26I on May 23 1990, which requires the installation f automatic sprinkler systems on multi family ly dwelns of four or more units. The appellant testified multiple family dwelling units under the Code share common hallways and stairways and that the houses subject to this appeal do not. The appellant characterized the buildings as "four plex" buildings comprised of side by side single family dwellings, completely separated by one hour fire separation walls and each having individual means of egress. The appellant testified that the building official, in his letter of denial, has properly classified the buildings as R-3 and furthermore states that under the Code, these buildings do not require to be sprinklered. The appellant testified that the building officials basis of denial is based on the enforcement of 114.1 of the Code (pertinent laws), specifically MGL c 148 s 261. The appellant stated that the intent of this legislation relates to multi family dwellings. The appellant testified that section 309.3 defines multi family dwellings and excepts multiple single family dwellings under section 910.3. The appellant testified that the buildings are so identified on the builder's permit number 7516. The appellant testified that MGL 000047 i i SPATE BUILDING CODE APPEALS BOARD Docket Number: 93-076 Date: July 16, 1993 c 148 s 26I is silent on this classification of building and requires the installation of sprinkler systems in accordance with the provisions of the Code, the appellant argued that the said units do not require automatic sprinkler systems. The appellant testified that the legislature vested the classification of all buildings with the Sate Board of Building Regulations and Standards (SBBRS) and that this has been i accomplished through the Code. The appellant argued that if the intent of the legislature was to include multiple single family dwellings in MGL c 146 s 26I, it would have done so. The appellant cited MGL c 148 s 26G as a law written specifically therefore overriding the provisions of the code and noted that MGL c 148 s 26I was not written in such specific language as related to multiple single family dwellings. -i The appellant also testified that under MGL c 143 s 3 the building official has the authority to enforce i the Code but no authority exists to enforce State Statutes which do not directly empower him to do so. ,The appellant stated that enforcement of MGL c 148 s`26 I is vested in the head of the local fire department. The appellant further testified that the BBRS has determined that pertinent laws under section 114.1 are those laws which the building official is legally empowered to enforce and'are his direct jurisdiction, of which MGL c 148 s26I is not. The appellant further testified that since the building official is empowered to issue building permits and since he (the building official) has already determined in his letter of denial that sprinkler are not required under the Code then a permit should issue accordingly. The appellant further testified that MGL 188 s 26I is not applicable to this project since a comprehensive permit (//85-14) had been issued in 1985. The building official testified that he agreed with the appellant's presentation and that the section of law is contrary to the efforts in the promulgation of a uniform state building code. Following testimony the Board determined that the Code is consistent in where sprinkler systems are required and that SBBRS has been consistent in defining a one and two family dwelling and a multi unit 1 building. The Board found that the use group classification R-3 and R-4 are used for one and two family dwellings the difference being whether they are attached or detached. On reviewing MGL 148 s 26I, the Board found that the terms multiple family dwelling units may be confusing and considered that the intent of the legislature is that the law pertains to R-1 and R-2 use groups and not R-3 and R-4 use groups. The i (Zflflil0 STATE BUILDING CODE APPEALS BOARD Docket Number: 93-076 Date: July 16, 1993 Board determined that R-3 use groups are not under the jurisdiction of MGL 148 s 26I. The Board determined that the buildings have been correctly classified by the building official as R-3 and as such the buildings were not subject to MGL c 148 s261. The Board ordered the Building Official to issue the permit under Use Group R-3 unless there is a deficiency in the application in other areas SO ORDERED The following Board Members were present and voted in the above manner: Chairman'!% i((H 1/ Thomas E. Donovan Douglas Cole Smith William P. Kramer (Abstained) A true copy attest, dated J L �!Clerk Brian Gore Any person aggrieved by a decision of the State Building Code Appeals Board may appeal to a court of competent jurisdiction in conformance with Chapter 30A, Section 14 of the General Laws. 000049 6777 .LIAM F.WELDG�ad�t `� 02908 STANLEY SHUMAN,P.l covrMor (hairtnan SMAS C.RAPONE THOMAS L.ROCERS Se et'ry TEL: (617)727-3200 FAX: (617) 227-1754 Adminktww STATE BUILDING CODE APPEALS BOARD October 7, 1993 Paul J. Beattie, Esq. 290 Elliot Street t Ashland, MA 01721 Re: Docket: #93-076 - Property Address: Workman's Circle, Cedar Street Ashland Dear Sir; On August 19, 1993 following a telephone poll to the State Building Code Appeals Board, the Board agreed to reconvene the above hearing, (originally heard on June 24, 1993) for discussion relative to reopening the case for reconsideration of its written decision of July 16, 1993. The Board opened the hearing and voted to reaffirm its decision of July 16, 1993 and provided clarification of its original decision as outlined below; The Board stated that the decision, as originally written, may lead one to conclude that the Board interpreted MGL c 148 s 261. The Board stated that it does not have jurisdictional authority to interpret MGL c 148 s 26I. Additionally,the Board stated that it was not the Board's intent in its written decision, to interpret Massachusetts General Law. The Board stated that-the last section-of-the-deeision_may be _ambiguous insofar as the decision states in part that j...the Board determined that R-3 use groups are not under the jurisdiction of MGL 148 s 26I.". The Board stated that its intent was to state under its statutory power that the classification of this building is R-3 and applicable construction requirements under th&building code are in the sections relating to R-3. The Board explained that much of the language of MGL 648 s 261 relates to multi family dwellings or R-1 or R-2 buildings and not to single family dwellings. The Board acknowledges its authority to classify a building's use group and in this case the Board exercised its authority in classifying the building as an R-3 structure._ 000063 I STATE BUILDING CODE APPEALS BOARD Docket Number: 93-076 Date: October 7, 1993 SO ORDERED The following Board Members were present and voted in the above manner: f IG:Ctv.+ W v Chairman, .ate' CL ' omas E. Dono Gary P. M cia William P. Cramer A true copy attest, dated rk Brian Gore _ Any person aggrieved by a decision of the State Building Code Appeals Board may appeal to a court of competent jurisdiction in conformance with Chapter 30A, Section 14 of the General Laws. cc: State Building Code Appeals Board Robert I. Hill Charles I. Dineuo Fire Chief,Town of Ashland 000064 Re: Docket No. 93-076 I\ Dear Mr. Chairman: 1. For the record, I respectfully ask the Chair, under what specific law_is this hearing for reconsideration of the Appeals Board's decision dated July 16, 1993 relative to Docket No.1 93-076 is to be conducted? 2. Section 126.2.1 of the State Building Code states that members of the Board of Building Regulations and Standards appointed by it's chairman can sit as members of the State Building Code Appeals Board - the regulation does not indicate that designees of those appointed members can sit. For the record, I respectfully ask the Chair for the capacity of the member sitting now who was not sitting at the June 24 scheduled hearing? 3. Mr. Chairman, the August 9, 1993 FAX notice of this hearing today (FAX's are not legal documents) indicated "that the Appeals Board had unanimously voted to reconsider its decision dated July 16, 1993...". For the record, Mr. Chairmanywhat was the date of the meeting when that vote was taken; was that meeting posted as required by Chapter 30A for all public meetings; and could a copy of the minutes of the said meeting be produced at this time for our examination? 4. For the record, Mr. Chairman, the August 9, 1993 FAX notice of this hearing did not state either the specific grounds or state the statutory provision relied upon to sustain the motion for reconsideration thereby constituting an illegal notice. For the record, Mr. Chairman, on behalf of my client, I wish to protest the legality of this meeting. The State Building Code Appeals Board heard Docket No. 93-076 on June 24, 1993 and immediately on that date at the close of the hearing issued a tentative decision. On July 16, 1993 a final written decision was mailed, which concluded with the statement that anyone aggrieved by the decision could appeal to a court of competent jurisdiction as provided under Chapter 30A of the General Laws. Beyond that Section 1.01, Item 10 (P) of 801 CMR. Standard Adjudicatory Rules of Practice and Procedure promulgated by the Executive Office for Administration and Finance as required by Chapter 30A of the General Law entitled "Motion for Reconsideration" allows any party to file a Motion for Reconsideration only within ten day from the date a copy of the decision is mailed to the parties by the agency. The law has set forth sufficient time for anyone to address a grievance of a decision. In this instance that time has elapsed. Mr. Chairman, this is not a denovo case. Furthermore, the August 9, 1993 notice of this hearing was improper since neither the grounds nor the statutory provision relied upon to sustain the motion were cited. Mr. Chairman, for the reasons cited, I strongly object to the reopening of this case when a tentative and final decision have already been rendered. 000065 C� v� NOV 16 193 01: 19PM HANIFY & KING, P.C. P.2 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION No. 93-5878 FAF'ARD REAL ESTATE AND DEVELOPMENT CORPORATION, Plaintiff, YA. FRANX XARAYIANE9, and others, Defendants. MEMORANDUM OF DECISION AND ORDER ON PARTIES MOTIONS FOR INJUNCTIVE AND DECLARATORY RELIEF This matter is before the court on consolidated actions of the parties both of which seek injunctive and declaratory relief. The plaintiff has asked the court for a declaration pursuant to G.L. c. 231A to make binding the State Building Code Appeals Board' s decision of July 16, 1993 (Docket No. 93-076) , on the Town of Ashland, on the Inspector of Buildings for the Town of Ashland, and on the Chief of the Fire Department for the Town of Ashland, if the provisions of the State Building Code.are otherwise satisfied. The defendants seek a preliminary injunction to prevent the alleged continuing violation of G.L. c. 148 , §261 , a contention which I find is not supported by the findings of the State Building Code Appeals Board ' s decision of July 16, 1993 . Frank Karayianes, individually and in his capacity as Chief of the Fire Department for the Town of Ashland, Robert Hill, in his capacity as Inspector of Buildings for the Town of Ashland, and the Town of Ashland. NOV 16 193 01:19PM HRNIFY & KING, P.C. P.3 2 The plaintiff seeks injunctive and declaratory relief for the defendant ' s alleged failure to issue Certificates of Occupancy for recently completed cluster housing consisting of four units of attached single family dwellings each, which cluster housing complies with the requirements of the State Building Code as determined by the State Building Code Appeals Board. The defendant in its counterclaim alleges that a preliminary injunction must be granted due to the reasonable likelihood of its success in proving that it is not bound by the decision of the State Building Appeals Board. The defendants seek a preliminary injunction to prevent the alleged continuing violation of G. L. c. 148 , §26I. For the reasons discussed below, plaintiff' s request for an order to make the State Building Code Appeals Board ' s decision binding on the defendants is granted, and the counterclaim dismissed. FIN�SiB The plaintiff, Fafard Real Estate and Development Corporation ("Fafard") , 2 is a real estate development corporation based in the Town of Ashland ("Ashland" or the "Townie Ashland issued to Fafard Special Permit No. 85-14 (the "Special Permit") on August 13 , 1985, for the construction of five hundred and seventy-six single-family attached homes in a 2 Fafard is the successor-in-interest to Ledgemere Condominium Corporation pursuant to the terms of Fafard ' s Plan of Reorganization under Chapter 11 of the United States Bankruptcy code, which became effective August 13 , 1992 . NOV 16 193 01:20PM HRNIFY & KING, P.C. P.4 3 subdivision known as Workmen' s Circle. The so-called "four-plex" housing configuration of the attached single-family dwellings are comprised of fou: units each. These single-family homes abut the other units in the "four-plex" on two appropriately rated fire walls . The fire walls extend from an independent basement foundation for each unit up to the underside of the roof. Each unit has two separate and independent means of egress, and an integrated smoke alarm system. None of the "four-plex" units have the characteristics associated with multi- family construction! common hallways, common stairways, and shared internal spaces. 780 C.M.R. §309 identifies various types of residential building or structures termed "Use Group R" which includes the Fafard single-fhmily "four-plex" configuration in Use Group R-3 , multiple single-,family dwelling units. Although attached the Building Code treats the individual units of the Fafard "four-plex" design as single family residences with the associated code requirements, as opposed to the more stringent requirements of a four unit multi-family dwelling, due to the conformity of the "four-plex" design to the R-3 definition. The controversy between the parties arises out of the adoption :J by the Town on May 23 , 1990 of G. L. c. 148 , as then amended. General Laws c. 148, §26I requires the installation of automatic sprinkler systems in multi-unit residential structures of four or more units. Fafard was notified by Ashland 's Inspector of Buildings ("Inspector") in or about February of 1992 that the occupancy permits for units completed, and building permits for NOV 16 193 01:21PM HFNIFY & KING, P.C. P.6 4 future units would be delayed due to the projects non-conformity with the recently adopted provisions of G. L. c. 148 , §26I . In April of 1992 Fafard decided to install automatic sprinkler systems in the units then at issue to avoid delay and to meet its construction completion schedule to committed purchasers of the units. Fafard reserved in writing its right to contest the applicability of §261 as it related to future permits for "four- plex" units being constructed pursuant to the special Permit. On April 1, 1993 , Fafard requested that the Inspector amend Building Permit No. 7516 with respect to Unit No. 108 in the Workmen' s Circle subdivision, so that the permit would not include any reference to §26I ' s automatic sprinkler system requirement. This request was made by Fafard based on the assertion that Unit No. 108 , a unit typical of those making up the subdivision, was categorized as a multiple single-family dwelling as defined in the building code and thus not controlled by the requirements of §261 . While the Inspector agreed with Fafard that the buildings were properly classified as R-3 his -view was that as §261 did not make reference to use group classifications the statute was thus applicable to the "four-plex" configuration. The Inspector informed Fafard of his right to appeal the decision respecting classification of the "four-plex" units and pursuant to 780 C.M.R. §126. 0 such an appeal was made to the State Building Code Appeals Board in a timely manner. A hearing on the Inspectors decision was held by the State Building Code Appeals Board of the State Board of Building NOV 16 '93 01:20PM HPNIFY & KING, P.C. P.5 NOV 16 '93 01:21PM HANIFY & KING, P.C. P.7 5 Regulations and Standards (the "Appeals Board") on June 24 , 1993 , at which time the Appeals Board sustained Fafard ' s appeal . On July 16 , 1993 the Appeals Board rendered a written decision, holding that Fafard's "four-plex" homes were multiple single-family dwellings of the type R-3 , and they were not subject to the provisions of §26I . The Appeals Board advised all parties that an appeal of its decision could be taken pursuant to C. L. c. 30A, §14 . No appeal of the July 16 , 1993 decision was taken. On July 7; 1993 the Inspector wrote to Fafard, advising that Building Permit Nos. 7516 and 7423 had been amended in accordance with the Appeals Board June 24 , 1993 decision so as not to require automatic sprinkler systems, and that future building permit applications for the same multiple single-family dwelling configuration would not require the installation of automatic sprinkler systems . On or about July 14 , 1993 , defendant Frank Karayianes, the Chief of the Fire Department for the Town of Ashland ("Fire Chief") , declined to process Fafard' s application for smoke alarm permits as required for R-3 dwellings under the Building Code. The Fire Chief made the refusal to inspect the smoke alarm installations on the Jbasis of his assertion that an automatic sprinkler system was required. The Fire Chief was at this time aware of the decision of the Appeals Board. Based on the refusal of the Fire Chief to inspect the smoke detectors the Inspector declined to issue the Occupancy permits for the units without an automatic sprinkler system. The decision to decline the Occupancy NOV 16 193 01:22PM HRNIFY & KING, P.C. P.6 6 Permits was made in clear opposition to the intent of the Appeals Board. As a result of the Inspectors refusal to issue Occupancy Permits for Fafard' s "four-plex" units, Fafard filed a Verified complaint for Declaratory and Injunctive Relief and Damages on October 8 , 1993 . Later on the same day the Fire Chief filed a Verified Complaint and Request for Injunctive Relief against Fafard. On October 12 , 1993 , this court allowed a motion to consolidate the two complaints. On October 12 , 1993 , Fafard received a letter from the Appeals Board, dated October ?, 1993 , which informed Fafard that it had declined to reconsider its July 16 , 1993 decision. On the same day the Inspector informed Fafard that occupancy permits would not be issued. CONCLUSIONS OF LAW I. Authority Pf the Appeals Board to Decide the Applicability of G. L. c 148 , 4261 to the " ur- lex" Chapter 143 Section 93 of the Massachusetts General Laws establishes the State Board of Building Regulations and Standards (the "State Board") and the Appeals Board, G. L. c. 143 , §93 . Massachusetts General Laws chZ�ter 143 , §94 provides in relevant part that the state board shall have the power to "formulate, propose, adopt and amend rules and regulations relating to, among other things, the classification and definition of any building or structure and use or occupancy of all buildings and structures or classes of buildings and structures. " G. L. C. 143 , §94 . NOV 1E 193 01:22PM HRNIFY & KING, P.C. P.9 7 The same statute also provides that the state Board' s rules, regulations, interpretations , and classifications of buildings "shall comprise and be collectively known as the state building code. " Id. Section 95 of Chapter 143 requires the State Board to create " (u) niforn standards and requirements for construction and construction materials, compatible with accepted standards of engineering and fire prevention practices, energy conservation and public safety. " G. L. c. 143 , §95 (emphasis added) . Clearly the State Board was legislatively mandated to harmonize competing standards and assure uniformity in the area of construction and particularly new construction as it applied to fire prevention practices and public safety, as well as to classify buildings. The eleven (11) members of the State Board are appointed in accordance with G. L. c. 143 , §93 . Two (2) of the eleven specified construction industry professionals, engineers or officials who comprise the State Board are the State Fire Marshall or his designee, and the head of a local fire department. These two positions support the interests of .fire protection professionals as the Board fills its appointed role in maintaining uniform 'J standards applicable to all communities. The State Board also serves as the Appeals Board pursuant to G. L. c. 143 , §100 of the Massachusetts General Laws and is empowered, among other things, to serve in hearing panels of three (3) on appeals from any "interpretation, order, requirement, direction of failure to act by any state or local agency or any NOV 16 '93 01:22PM HRNIFY & KING, P.C. P. 10 8 person or state or local agency charged with the administration or enforcement of the state building code or any of its rules or regulations. " G. L. c. 143 , § 100. II. Nonapplicability of G. L. c 148 526I to the "four-plex" design "Automatic sprinkler Systems, New or Rehabilitated Multi-Unit Residential Structures", G.L. c. 148 , §26I , provided in pertinent part: In a city, town or district which accepts the provisions of this section, any building hereafter constructed or substantially rehabilitated so as to constitute the equivalent of new construction and occupied in whole or in part for residential purposes and containing not less than four dwelling units, including, but not limited to, lodging houses, boarding houses, fraternity houses, dormitories , apartments , townhouses , condominiums, hotels, motels and group residences, shall 'be equipped with an approved system of automatic sprinklers in accordance with the provisions of the state building code. In defining the scope of its intended subjects, the Legislature did not describe buildings with the same degree of precision used in the Building Code. The plain language of the passage does not describe what -is meant by a 11multi-unit residential structure, " which is the language used in its title. Further ambiguity exists due to the inclusion on the tern. "condominium" which is a form of ownership, not a building type. In June 1992 , the state Board amended the Building Code to reflect the changes made by Section 26I . Specifically, it interpreted Chapter 148 , §26 to apply to and include only R-1 and R-2 Use Group Classifications. The amendments to the Building Code NOV 16 193 01:23PM HRNIFY & KING, P.C. P.11 P made to accommodate 926I ' s effect specifically exclude buildings in the R-3 category because they are considered to be single-family residences. Use Group R-3 structures includes "all buildings arranged for the use of one or two-family dwelling units, including not more than three (3) lodgers or boarders per dwelling unit, and as provided in Section 910. 3 for multiple single-family dwelling units. " 780 C.M.R. §309 . 4 .3 The plain language of the statute makes its implementation effective on certain classes of buildings "in accordance with the provisions of the state building code. " G. L. c. 148 , 926I . T: e Appeal Board found that the design configuration of the "four-plex" units were consistent with the definition of an R-3 classification, a building classification unaffected by §26I. The Appeal Board's determination that the "four-plex" design is of construction type R-3 does not appear to have been arbitrary or capricious, and it is the type of decision delegated to the Appeals Board as part of its duty to harmonize conflicts between competing elements of the statutory enactments, therefor the Appeals Board' s decision settles the question. 3 Section 910. 3 provides: Multiple single-family dwellings: Single-family dwelling units (Use Group R-3) located above or adjacent to other single-family dwelling units (Use Group R-3) shall be considered as one building classified as use Group R-3 for the purpose of determining the applicable provisions of this code, provided each dwelling unit is completely separated from the adjacent dwelling unit(s) by fire separation wall (s) and floor/ceiling assemblies of not less than 1-hour fire-resistance rated construction and each unit has independent means of egress. NOV 16 '93 01:23PM HRNIFY & KING, P.C. P. 12 10 III. The Appeals Board ' s July 16 , 1993 Decision if Final and Binding Upon the parties The Appeals Board is authorized by the Legislature to rear appeals directly from parties "aggrieved by an interpretation., order, requirement, direction or failure to act by any state or local agency or any person or state or local agency charged with the administration or enforcement of the state building code or any of its rules or regulations. " G. L. c. 143 , §100. On May 6, 1993 , Fafard appealed the refusal by the Inspector to amend the building permit for Unit No. 108 to remove any express or implied reference to §262 ' s requirement of an automatic sprinkler system. On June 24 , 1993 , the Appeals Board conducted a hearing on the matter and sustained Fafard ' s appeal. On July 16 , 1993 , the Appeals Hoard issued a final written decision sustaining Fafard' s appeal. The Appeals Board determined that Fafard' s units were properly classified by the Inspector as use Group R-3 (multiple single-family dwellings) , and that §262 did not apply to Use Group R-3 . The conclusion of the Appeals Board was that Fafard's units were not required to be sprinklered. The defendants failed to either file a Motion for Reconsideration with the Appeals Board within ten (10) days front the date the copy of the decision was mailed to them, per the requirements of 801 C.M.R. §1 . 01 (10) (p) , or to file an appeal o= the Appeals Board' s decision with the Superior Court within thirty (30) days of receipt of the decision, per G. L. c. 30A, 914 (1) . The defendants failure to make a timely appeal of the Appeals Board ' s NOV 16 '93 91:24PM HRNIFY & KING, P.C. P.13 ll decision to the Superior Court makes the Appeals Board's decision sustaining Fafard' s appeal final and binding on the parties. IV. The Decision of the Board of Appeals is Binding on the Fire Chief In the hierarchy of the municipal authority of the Town of Ashland the Building Inspector is responsible to determine the proper classification of proposed structures, not the Fire Chief. The "Board of Fire Prevention Regulations Massachusetts Fire Safety Code" addresses the application of the building code under the authority of the Fire Prevention Regulations as follows, 507 C.M.R. §1. 02 (3) : Application of Buildinc Code: The planning, design and construction of new buildings and structures to provide egress facilities, fire protection, and built-in fire protection equipment shall be in accordance with 780 C.M.R. (the State Building Code) listed in 527 C.M.R. 12 .00 Appendix A. ; and any alterations, additions or changes in buildings required by the provisions of 527 C.M.R. which are within the scope of 780 C.M.R. (the State Building Code) listed in 527 C.M.R. 12 . 00 Appendix A shall be made in accordance therewith. Both the Inspector and the Appeals Board have determined that the proper classification of the Fafard "four-plex" units is that of Use Group R-3 . Yith regard to the Fafard'"Tour-plex" units it is the role of the Fire Chief to enforce those provisions of the relevant codes which affect the design and construction of such Use Group R-3 structures, which classification by final determination of the Appeals Board does not require an automatic sprinkler system. The Fire Chief failed to file a timely appeal of the Appeals NOV 16 '93 01:24PM HRNIFY & KING, P.C. P. 14 12 Board 's decision therefore the Superior Court is without jurisdiction to review the matter. Where an appeal of an administrative agency decision fails to comply with a thirty (30) day filing requirement, dismissal of the action is proper, Board of Ap eals o ockiport v. Detarolis, 32 Mass. App. Ct. 346 (1992) . "In the absence of special circumstances, however, declaratory relief cannot be used •to circumvent a period prescribed by statute for obtaining judicial, review, " supra. Failure to file a timely appeal removes jurisdiction, Flynn v. Contributory Retirement Apneal Board, 17 Mass. App. Ct. 668 , 669 (1984) . Under G. L. c. 30A, §14 (7) , this court may affirm, remand, set aside or modify the respondent ' s decision if it is determined that the rulings, among other things, are unsupported by substantial evidence, based upon an erroneous interpretation of the law, or were arbitrary or capricious. G. L. c. 30A, §14 (7) ; Pryamid Co. of Hadley v. ARchitectural,_Access Bd. , 403 Mass. 126, 130 (1988) ; Winn V. Architectural Access Bd. , 25 Mass. App. Ct. 41, 42 (1987) . "Substantial evidence" is that evidence which a reasonable mind might accept as adequate to support a conclusion. Vaspourakon Ltd. V. Alcoholic Beverage Control Comm'n, 401 Mass . 347 , 351 (1987) . The court defers to the respondent ' s factfinding role and its knowledge and expertise. See School Comm'n of Brookline v. Bureau of Special Education Appeals, 389 Mass. 705, 716 (1983) . Accordingly, this court may not make a de novo determination of the facts, make different credibility choices, or draw different inferences from the facts found by the Appeals Board. NOV 16 '93 01:25PM HANIFY & KIV6, P.C. P.15 13 Ir. addition the Superior Court lacks subject matter jurisdiction as the determination of questions such as this were delegated to the Appeals Board. Mass. R. Civ. P. 12 (h) (3) , "Whenever is appears by suggestion of a party or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the matter. " The court must decide the jurisdictional question whenever raised and however raised, even sua sponte, Flynn v. Contributory Retirement Aripeal Bo2rd, 17 Mass. App. Ct. 666 , 670 (1984) . where a final decision has been reached by the "appropriate duly authorized administrative agency, where no error is manifest, and where the appeal period has run there is no basis for this court to review the final decision of an administrative agency. " "Sloppiness in following a prescribed procedure for appeal is not encouraged or condoned, but at the same time a distinction is taken between serious missteps an d relatively innocuous ones. Some errors and omission are seen on the face to be so repugnant to the r procedural scheme, so destructive of its purposes, as to call for dismissal of the appeal. A prime example is attempted institution of an appeal seeking judicial review of an administrative decision after expiration of the period limited by a statute or rule. " Schulte v. of the Division of Employment, 369 Mass. 74 , Director on 79 (1975) . Accordingly, I declare pursuant to the Declaratory Judgments Act, G.L. C. 231A that the application for a preliminary injunction by the Chief of the Fire Department of the Town of Ashland must be NOV 16 193 01:25PM HANIFY & KING, P.C. P. 16 14 denied as the Superior Court is without jurisdiction to review the State Building Code Appeals Board ' s decision of July 16, 1G93 (Docket No. 93-076) due to the failure of the defendant to file a timely appeal . I also declare that the decision of the State Building Code Appeals Board ruling that G. L. c. 1.48 , §261 1 did not apply to the "four-plex" design utilized by plaintiff was within the lawful authority of the Board, and that the decision of the Board is final and binding upon the parties. For the reasons outlined above, the plaintiff ' s application for an order to make the Appeals Board ' s decision binding on the defendants is ALLOWED. ORDER That the Chief of the Fire Department of the Town of Ashland is ordered to make immediate inspections of those "four-plex" units of the Workmen' s Circle development in Ashland as designated ::y Fafard; such inspections are restricted to the class of concerns appropriate for Use Group R-3 ; and, if the appropriate concerns of the Fire chief are adequately addressed then the Fire Chief shall provide the Building Inspector with such certifications as are required by the Town of Ashland from the Fire Department for the granting of a Certificate of Occupancy. Future inspections of the Use Group R-3 units comprising the Workmen ' s Circle development by the Fire Chief, or his successors, shall conform to this order. I also declare that the decision of t Building de he State Bui �n Co 5 Appeals Board as to the non-applicability of G.L. c. 148 , §261 to t NOV 16 193 01:2GPM HRNIFY & KING, P.C. P.17 15 the "four-plex" design was within its authority, and binding upon the parties . That the Building Inspector ector of the Town of Ashlandshall expedite the issuance of Certificates of Occupancy for those units of the Workmen ' s Circle development which are completed at the time of this decision if the requirements of the State Building Code are otherwise met. Pursuant to Mass. R. Civ. P. 34 (b) , there being no just reason for delay and based upon the financial exigencies set forth in Fafard's supporting papers, separate, final judgment shall enter in favor of Fafard an Count I of its verified Complaint for Injunctive and Declaratory Relief in Civil Action No. 93-5878 . Vieri Guy Volt rra Justice of the Superior Court Dated: November (6 , 1993 Tifb Dfc71PTii Cffla55caP4usdi5 c ' fiECIE iVF ( ' Manning f nttrb 2 i � 'sem-;r (enc $alrm Green '85 MAY 14 P2 .59 CITY CLEF K'S OFFICE SALEM MASS CERTIFICATE OF ACTION DATE: May 6, 1985 TO: Josephine R. Fusco, City Clerk FROM: City of Salem Planning Board _ RE!: The Fafard Companies--Subdivision f Whalers Lane I hereby certify that, pursuant to Massachu . s General Laws, the Salem Planning Board has taken the following action with respect to the above—referenced subdivision: By unanimous vote, the Planning Board approved the proposed subdivision plan as presented with the attending conditions. Notice of the Planning Board' s action and the reasons supporting it are more fully described in the attached opy of a letter, the original of which was sent to the applicant by registered mail, postage prepaid, at his address stated on the petition. 'Wl UAL2 Q � Walter B. Power, IIIA ' ( ( Chairman, Planning Board dey CITY OF SALEM, MASSACHUSETTS PLANNING DEPARTMENT RECFIVEG GERARD KAVANAUGH . `�. MY 14 P 259 ONE SALEM GREEN CITY PLANNER yt 01970 •i Wy a (617( 744-4580 CITY CLERK'S OFFICE 'SALEM MASS May 6, 1985 Mr. Daniel Drake The Fafard Companies 290 Eliot Street Ashland, MA. 01701 Dear Mr. Drake: The Planning Board voted on May 2, 1985, to approve the proposed subdivision plan entitled, "Ledgemere Country, Salem, MA.", dated February 1 , 1985, revised, April 17, 1985, April 30, 1985, and as requested by the Planning Board, subject to the following conditions: 1. Landscaping of planting strips shall be subject to the review and r approval of the Planning Department. 2. Vertical curbing shall be shown on the plan. The Planning Board reserves the right to waive the requirement for vertical curbing if necessary. 3. Easements shall be, provided wherever drainage systems, water, or sewer systems are outside the right-of way. 4. Comments noted in a letter from Paul S. Niman, dated May 2, 1985, (attached hereto) shall be resolved prior to commencement of construction. 5. A method for the holding and disposal of rubbish shall be submitted to the Board of Health for their review and approval. 6. A licensed rodent control firm shall be employed to undertake a site evaluation prior to commencement of construction. 7. Number and location of fire boxes shall be subject to the review and approval of the Fire Chief and City Electrician. 8. A sedimentation and erosion control plan shall be submitted to the Planning Department for review and approval. -, Ch 9. Final approval of underground utilities, street lighting, �r Mcommunications, drainage, water, and sewer shall be subject to mh'2 L review and approval of the Planning Board following a determinC:L��n of w the total infrastructure needs of the proposed development and ro -7 N developable land parcels in the surrounding area. M %C 10. All construction shall be in accordance with the rules and regulations of the Planning Board and the Subdivision Regulations. This endorsement shall not take effect until a copy of the decision bearing the certification of the City Clerk that twenty days have elapsed and no appeal has been filed or that if such appeal has been filed, that it has been dismissed or denied, is recorded in the Essex County Registry of Deeds and is indexed in the grantor index under the name of the owner or record or is recorded and noted on the owner's certificate of title. The fee for recording or registering shall be paid by the owner or applicant. I hereby certify that a copy of this decision and plans is on file with the City Clerk and a copy is on file with the Planning Board. Walter B. Power, III d-cy Chairman, Planning Board Q � X a� r RECEIVI— Ctg of idem, ussarhugfgAy 14 P2 :59 Bepartment of Publir Ptfi�$CLERK•S u^FFICE PAUL S.NIMAN engineering PiVision SALEM r'aS =000MUSM - THOMAS E.BURKE DIRECTOR OF PUBLIC SERVICES One *tem Green ASSISTANT DIRECTOR OFPUBLIC SERVICES May 2, 1985 Planning Board One Salem Green Salem, MA. 01970 RE: Development - Whalers Lane Gentlemen: I have completed my review of the above referenced development and offer the following comments: 1 . The 10 inch gravity sewer from Station 0+00 should be increased to a 12 inch sewer. This will provide available capacity for development along Swampscott Road. 2. The 10 inch gravity sewer from station 40 + 40 to 45 + 35 should be revised to show a minimum slope of 0.003. 3. The gravity sewer shown from station 16+00 to 26+00 should be eliminated until plans for the pumping station on Swampscott Road are completed. 4. The area shown as wetlands on sheet SP 1 does not agree with the topogrophy shown on the plan. Additional survey work is most likely necessary to better define the wetlands and the proposed compensating area. An elevation of the wetlands should be provided to insure the elevation of the proposed ditch will not drain the existing wetlands. If the Planning Board wishes to approve the proposed subdivision at tonight's meeting, I request that they include the resolution of the above items in their order of conditions. y Additionally, I would like to point out that while the domestic wv supply is adequate for the anticipated development in this area, the fire flaws appear torr be marginal. I have not addressed this matter with this subdivision IGRuse'F feeC.) it is more appropriately addressed at the time the P. U. D. is submit!ttefor aevie;Z I have informed Fafard that this issue must be addressed at that time�-`n < ✓,c 'p ;T Very truly yours, m t Paul S. Niman Director of Public Services PSN/cmc cc: George M. Seeley, The Fafard Companies Speed Letter 44-902j////////// ������������/ Speed Letter® To Joan Jukins/ Collector From William Munroe/ Building Inspector Subject Whalers Lane,(Salem Sanctuary Condo) Fafard Co. —No 9 mcaiD - MESSAGE "PLEASE ADVISE IF TAXES ARE DUE" Date 1/30/87 SignedWt �` JW*040'4m REPLY Do a FOLD — .,om Date Signed GRAYLINE WIISOIIO O"702 -PART RECIPIENT—RETAIN WHITE COPY, RETURN PINK COPY 41g8 -PRINTED IN U.S A. 1184 Speed Letter. To "Joan Jukins/ Collector From William Munroe/ Building Inspector Subject Whalers Lane,(Salem Sanctuary Condo) Fafard Co. No.98 iOFOLD MESSAGE I� "PLEASE ADVISE IF TAXHS ARE DUE" Date 1/30/87 Signed REPLY No 9 FOLD - orom Date Signed WilsonJones GRAYLINE FORM 44-902 3-PART [1983-PRINTED IN USA SENDER-DETACH AND RETAIN YELLOW COPY. SEND WHITE AND PINK COPIES WITH CARBON INTACT. RICHARD E. LAHAM & CO. „n,kP5 ,IR cr L; it INSURANCE ADJUSTERS FOR COMPANIES ONLY P. O. BOX 1322 DEDHAM, MASSACHUSETTS 02026 TELEPHONE (617)329.9373 .6,4� iry� afk ,7n 7 M January 28, 1987 &rpy OF S"" `- i, A Form of Notice of Casualty Loss to Building Under Mass. Gen. Laws, Ch. 139, Sec. 3B TO; Building Commissioner or Board of-Health or ' Inspector of Buildings Board of Selectmen City Hall ( City Hall I addresses Salem, MA )S ( Salem, MA RE: Insured• Fafard Companies Property Addressalem Sanctuary Condominium Whalers Lane, Salem, MA Policy No. 320 4820593 Crum & Forster Loss of 12/17/86 Windstorm File or Claim No. CLAIM N0. BSU3286 66-813 Claim has been made involving loss, damage or destruction of the above captioned property, which may either exceed $1 ,000.00 or cause Mass.Gen.Laws, Chapter 143, Section 6 to be applicable. If any notice under Mass.Gen.Laws, Ch. 139, Sec. 3B is appropriate, please direct it to the,, attention of the writer aninclude rereference to the captioned insured, location, policy number, ,date of loss and claim or file number. If no reply is received from your office within ten" days, we will assume you have no liens of an type against this Y YP 9 property and we will recommend to the insuring company that this claim be paid. Adjuster Cid ; ,^_y,.f THE FAFARD COMPANIES 290 Eliot Street /Ashland,MA 01721 AA Q Q 617-681-1600 tia. �1 I )-'•4 I (i '(J6 H.A. Fafar & or�s�IIConsGr•uq�ion, Inc. Ledgemer, )L�a dCor�o`r6616A,MASS. Fafard Real Estate Interiors - Town Line Associates, Inc. T0: All Concerned FROM: Ron Killian SUBJECT: Salem Residential PCU Whaler's Lane DATE: June 26. 1986 In the process of transferring all the plan changes from the Phase 1 final approved 40 scale plans (4/3;86) to the Open Space/Site Sign Plan (Sheet 10X. 6/10;86) . a few items were excluded inadvertently. I have enclosed a corrected Sheet IOX (revised 6/201186) for your use. The changes are: building 100 - driveway out to Whaler ' s Lane; - change addresses: - change to Long Ell style; Building 102 - change to Short Ell style; -, Building 96 - change to Long Ell style; Building 108 - change driveway to Grand Turk Way: - change addresses. My apologies for any inconvenience this may have caused you. Revised plans sent to: Salem - Assessor Massachusetts Electric - Building Inspectors/ New England Telephone - Fire Prevention Warner Cable - Planning Joe Trolla - Engineering Paul Silva - Water Tim O'Hara - U.S. Post Office Bob Barton, Jim Ward - Boston Gas John Chabot p Ann Fredericks G o