23 RIVER STREET - CIVIL ACTION John H. Carr, Jr., Esq.
7 River Street
Salem, MA 01970
Phone: 978-807-3264
Email: johnhenrycarr@gmail.com
October 28, 2021
By First Class Mail and By Email
Salem Building Inspector Thomas St. Pierre
120 Washington Street
City Hall Annex
Salem, MA 01970
Re: Jeremiah Jennings, et al. v Paschal Corrigan and the Salem Zoning Board of
Appeals, Civil Action No: 2177CVO1060
Dear Mr. St. Pierre:
Enclosed please find the following with respect to the above-entitled civil action:
a. Copy of my October 25, 2021 cover letter to the Civil Clerk of the Essex Superior
Court;
b. Copy of Plaintiffs' October 25, 2021 Complaint Pursuant To M.G.L. Chapter 40A,
Section 17 Appealing The October 6, 2021 Decision of the Salem Zoning Board of
Appeals Concerning 23 River Street, Salem, Massachusetts (Salem Assessors Map 26,
Lot 664), including a copy of the certified copy of said Decision(Exhibit"A")
attached to said Complaint; bearing the date-stamp of the Essex Superior Court
confirming the filing of said Complaint in the Essex Superior Court on Monday,
October 25, 2021 at 11:21 AM and the Civil Action No. 2177CVO1060;
c. Copy of my October 25, 2021 cover letter to the Salem City Clerk;
d. Copy of Plaintiffs' October 25,2021 Notice To Salem City Clerk Of Plaintiffs'
Appeal To Essex Superior Court Of October 10, 2021 Decision of the Salem Zoning
Board of Appeals Concerning 23 River Street, Salem, Massachusetts (Salem
Assessor's Map 26, Lots 644);
e. Copy of Essex Superior Court Tracking Order.
Nov
NOV
Thank you in advance for your attention to the foregoing.
MJohnH.
Enc.
Cc. Plaintiffs—By Email
John H. Carr, Jr., Esq.
7 River Street
Salem,MA 01970
Phone: 978-807-3264
Email: johnhenrycarr@gmail.com
October 25, 2021
By Hand
Civil Clerk > ,
Essex Superior Court ;
J. Michael Ruane Judicial Center a. .r
58 Federal Street`
Salem, MA 01970
Re: Jeremiah Jennings, et al. v Paschal Corrigan and the Salem Zoning Board of co
Appeals, Civil Action No: 217-7 ( 'Vo / a 66
Dear Sir or Madam:
Enclosed for filing in the above-entitled action please find the following:
1. Complaint Pursuant To M.G.L. Chapter 40A, Section 17 Appealing The October
6, 2021 Decision of the Salem Zoning Board of Appeals Concerning 23 River
Street, Salem, Massachusetts (Salem Assessors Map 26, Lot 664), including a
certified copy of said Decision(Exhibit A")attached to said Complaint;
2. Civil Action Cover Sheet;
3. My check in the amount of$275.00 to cover the filing fee.
Would you or someone from your office kindly file and date-stamp the above, and also
acknowledge receipt of the foregoing by date-stamping my enclosed file copies of this
cover letter and said enclosures. r n
A U)
Thank you in advance for your attention to the foregoing. =�
Very truly yours,
John H. Carr, Jr. -v
Enc. =
Cc. Salem City Solicitor Elizabeth Rennard—By Hand
Plaintiffs—By Email
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO: Vq Iy 7�C VO,066
JEREMIAH JENNINGS, FREDERICK C. BIEBESHEIMER IV, )
LISA A. SPENCE, TIMOTHY DOGGETT, DANIEL MADIGAN, )
CHARLES von BRUNS,CAROL CARR,ANN WHITTIER, )
JUSTIN WHITTIER and DARROW A. LEBOVICI, M
U)
PLAINTIFFS ) c ,`-
V.
PASCHAL CORRIGAN and MIKE DUFFY(Chair), PETER )
COPELAS, PAUL VICCICA,ROSA ORDAZ, CARLY McLAIN, ) -,
and STEVEN SMALLEY(Alternate), BEING THE MEMBERS
OF THE CITY OF SALEM BOARD OF APPEALS ) =�
DEFENDANTS )
COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A,SECTION 17
APPEALING THE OCTOBER 6,2021 DECISION OF THE SALEM ZONING
BOARD OF APPEALS CONCERNING 23 RIVER STREET,SALEM,
MASSACHUSETTS{SALEM ASSESSOR'S MAP 26, LOTS 644)
This is an appeal from a Decision of the City of Salem,Massachusetts Zoning Board of
Appeals(hereinafter"ZBA"or"Zoning Board"or"Board"), dated October 6,2021 (hereinafter
"Decision"), and filed with the Salem, Massachusetts City Clerk on October 6,2021 at 2:20 PM,
affirming a May 20,2021 written decision of Salem Building Inspector Thomas St. Pierre
(hereinafter`Building Inspector"or"Mr. St. Pierre")that(a)23 River Street, Salem,
Massachusetts(hereinafter"23 River Street") did not lose its prior non-conforming use as a two-
family dwelling due to the property being completely empty for well over the two year period
provided in Section 3.3.6 of the Salem Zoning Ordinance and in Chapter 40A of the
Massachusetts General Laws, and(b)refusing to revoke the Building Permit he granted to the
owner of 23 River Street, Paschal Corrigan(hereinafter"Mr. Corrigan")to develop the property
as a two-family dwelling,notwithstanding that it violated the parking requirements of the Salem
Zoning Ordinance for an R-2 Zoning District, on the grounds that said Decision was arbitrary,
capricious,unreasonable,violated due process, exceeded the Zoning Board's authority, was
based on legally and factually untenable grounds, and was wrong as a matter of law.
A certified copy of said October 6,2021 Decision is attached hereto as Exhibit A.
PARTIES
1
Plaintiffs
1. Plaintiff, Jeremiah Jennings, co-owns (together with his wife) and resides at 18 River
Street, Salem, Massachusetts, which property is located directly across the street, and
within 50 feet, from 23 River Street, and thus is a direct abutter of said property.
2. Plaintiffs, Frederick C. Biebesheimer IV and his wife, Lisa A. Spence, own and reside at
17'/2 River Street, Salem, Massachusetts, which property is located approximately 69 feet
from 23 River Street and is an abutter of an abutter of said property.
3. Plaintiff,Daniel Madigan co-owns(together with his wife)and resides at 14 River Street,
Salem, Massachusetts, which property is located within close proximity and sight of 23
River Street.
4. Plaintiff, Timothy Doggett, co-owns (together with his wife) and resides at 9 Lynn Street,
Salem, Massachusetts, which property is located approximately 130 feet from 23 River
Street and is an abutter of an abutter of said property.
5. Plaintiff, Ann Whittier, co-owns (together with her husband, Stephen Whittier) and resides
at 10 River Street, Salem, Massachusetts, which property is located east of 23 River Street.
6. Plaintiff Justin Whittier resides at 10 River Street, Salem, Massachusetts. He is the son of
Ann Whittier and Stephen Whittier who will ultimately inherit 10 River Street.
7. Plaintiff, Carol Carr, co-owns together with her husband, and resides at 7 River Street,
Salem, Massachusetts, which property is located east of 23 River Street.
8. Plaintiff, Charles von Bruns, co-owns together with his wife and resides at 3 River Street,
Salem,Massachusetts, which property is located east of 23 River Street.
9. Plaintiff, Darrow A. Lebovici, co-owns (together with his wife) and resides at 122 Federal
Street, Salem, Massachusetts, which is on the northeast corner of Federal and Lynn Streets,
Salem, Massachusetts. 23 River Street is located at the bottom of Lynn Street, at its
northwest intersection with River Street.
Defendants
10. Defendant, Paschal Corrigan(hereinafter"Mr. Corrigan"or"Paschal Corrigan"), who
resides at 60 Eden R.,Rockport, Massachusetts 01966, is the owner of 23 River Street and
the beneficiary of the October 6, 2021 ZBA Decision now being appealed.
11. Defendant, Mike Duffy, a/k/a Michael Duffy, who resides at 55 Felt Street, Salem,
Massachusetts 01970, is a regular member and the Chair of the Salem ZBA who on
September 22, 2021 voted in favor of what became the October 6, 2021 Decision of the
Salem ZBA now being appealed.
2
12. Defendant, Peter Copelas, who resides at 40 Warren Street, Salem, Massachusetts 01970, is
a regular member of the Salem ZBA who on September 22, 2021 voted in favor of what
became the October 6, 2021 Decision of the Salem ZBA now being appealed.
13. Defendant, Paul Viccica, who resides at 35 Broad Street, Salem, Massachusetts 01970, is a
regular member of the Salem ZBA who on September 22, 2021 voted in favor of what
became the October 6, 2021 Decision of the Salem ZBA now being appealed.
14. Defendant, Rosa Ordaz, who resides at 13 Forest Avenue, Salem, Massachusetts 01970, is
a regular member of the Salem ZBA who on September 22, 2021 voted in favor of what
became the October 6, 2021 Decision of the Salem ZBA now being appealed.
15. Defendant, Carly McLain, who resides at 22 Albion Street, Salem, Massachusetts 01970, is
a regular member of the Salem ZBA who on September 22,2021 voted in favor of what
became the October 6, 2021 Decision of the Salem ZBA now being appealed.
16. Defendant, Steven Smalley, who resides at 141 Washington Street, Salem, Massachusetts
01970, is an Alternate Member of the Salem ZBA who on September 22, 2021 did not
vote on what became the October 6, 2021 Decision of the Salem ZBA now being appealed.
JURISDICTION AND STANDING
17. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the
Massachusetts General Laws.
18. The Plaintiffs have standing to bring this action, as they are substantially aggrieved by the
October 6, 2021 Decision of the Salem ZBA now being appealed.
19. This case is timely, as it has been filed within twenty (20) days from October 6,2021,
which is when the October 6, 2021 Decision of the Salem ZBA was filed with the Salem
City Clerk.
PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS
23 River Street Locus Generally
20. 23 River Street is located in an R-2 Zoning District.
21. The property is also located in the so-called McIntire Historic District established pursuant
to Chapter 40C of the Massachusetts General Laws and is also separately listed on the
National Register of Historic Places designated by the United States Department of the
Interior.
22. Salem City Assessor's records indicate that 23 River Street consists of a structure
comprising 1,546 square feet on a total lot size of 2,108 square feet.
3
23. Thus, each of Mr. Corrigan's proposed two units would amount to less than 750 square
feet, since common areas and staircases would have to be subtracted, leaving only 562
square feet(2,108 square feet minus 1,546 square feet) available for parking and a yard.
24. Notwithstanding that both River Street and Lynn Street are located in an R-2 Zoning
District,thirteen(13) of the sixteen houses on River Street are single-family dwellings,
namely numbers 2,4, 7, 10, 12, 13, 14, 15, 16, 15 % , 17, 17 %, and 18, and only three are
two-family dwellings,namely numbers 3, 6, and 11, of which numbers 3 and 11 are also
owner-occupied.
25. Each of these three two-family properties are significantly larger than 23 River Street.
26. Similarly, eight(8)of the nine houses on Lynn Street are single-family dwellings, and the
remaining property, namely 10 Lynn Street, has been continuously used as a singly family
dwelling for well in excess of ten(10)years.
27. 23 River Street is located on the southerly side of River Street at its westerly end, where it
intersects with Bridge Street.
28. Immediately to the west of 23 River Street, at 331-33 Bridge Street, but outside of the
Mcintire Historic District, are four newly constructed single-family town houses.
29. 23 River Street is also located directly across Bridge Street to the north by a 4,003-acre
linear park known as Leslie's Retreat Park(replacing a former blighted industrial area),
stretching 2,236 feet along the northern side of Bridge Street from the North Street
Overpass in the east to Flint Street in the west, which was completed in 1999 at a cost to
taxpayers of approximately Four Million($4,000,000.00)Dollars as part of the so-called
Salem Beverly Transportation Project.
Immediate Owners Of 23 River Street Prior To Paschal Corrigan's Purchase
30. On December 7, 1999 James F. Wright purchased 23 River Street, which deed is recorded
at Book 160, Page 405 at the Essex South Registry of Deeds.
31. On October 24, 2006 James F. Wright deeded 23 River Street to James F. Wright and
Annette N. Wright, husband and wife, as tenants by the entirety,which deed is recorded at
Book 26229, Page 321 at the Essex South Registry of Deeds.
32. On October 24, 2006 James F. Wright and Annette N. Wright gave a mortgage to
Countrywide Home Loans, Inc., which mortgage is recorded at Book 26229, Page 165 at
the Essex South Registry of Deeds.
33. On February 23, 2016 Countrywide Home Loans, Inc., granted a Foreclosure Deed to
Fannie Mae, which Foreclosure Deed is recorded at Book 39672, Page 322 at the Essex
South Registry of Deeds.
4
34. Section 3.3.6 of the Salem Zoning Ordinance provides the following in its entirety:
A nonconforming use or structure which has been abandoned or
not used for a period of two years, shall lose its protected status
and be subject to all of the provisions of this Ordinance.
Emphasis added.
35. 23 River Street has been completely empty for at least two years, both before and after
the February 23,2016 foreclosure of said property by Countrywide Home Loans,Inc.,
continuing to this date.
Paschal Corri an's Purchase And Financing Of 23 River Street
36. Paschal Corrigan purchased 23 River Street on February 8, 2021 from Fannie Mae a/k/a the
Federal National Mortgage Association of Dallas, Texas (hereinafter"Fannie Mae") for
$270,000.00, which deed is recorded at Book 39672, Page 165 at the Essex South Registry
of Deeds.
37. On information and belief, Mr. Corrigan purchased 23 River Street from Fannie Mae under
a program whereby only "First Time Buyers"would be entitled to participate.
38. The Plaintiffs are aware of at least one competing buyer who wanted to purchase 23 River
Street and restore it as a single family dwelling, but who was precluded from doing so
because she was not a"First Time Buyer."
39. On information and belief, Corrigan was not a"First Time Buyer,"having previously
owned properties in Essex County alone at 12-14 Washington Street, also known as 1-6
Smith Lane, Manchester-By-The-Sea, MA; at 119 Pleasant Street, Manchester-By-The-
Sea, MA; and 137 Prospect Street, Gloucester, MA, which consisted of both personal
residences and investment properties.
40. On information and belief, Mr. Corrigan misrepresented to Fannie Mae that he was a"First
Time Buyer"when he purchased 23 River Street.
41. On March 19, 2021 Mr. Corrigan granted CrossCountry Mortgage,LLC of Brecksville
Ohio a Mortgage in the amount of$260,785.00, which together with a Rehabilitation Loan
Rider and a 1-4 Family Rider(Assignment of Rents) are recorded at Book 39672, Page 168
at the Essex South Registry of Deeds.
42.Nine months after his February 8,2021 purchase of 23 River Street from Fannie Mae, and
eight months from his $260,285.00 mortgage and related Rehabilitation Loan Rider and 1-4
Family Rider(Assignment of Rents)to CrossCountry Mortgage, LLC, Mr. Corrigan has
done very little, if anything,to rehabilitate 23 River Street.
Paschal Corrigan's Application To Salem Historical Commission
5
43. Pursuant to Chapter 40C of the Massachusetts General Laws,the Salem Historical
Commission has jurisdiction over all exterior changes at 23 River Street.
44. On April 8, 2021 Mr. Corrigan applied for a Certificate Of Appropriateness to perform the
following exterior work at 23 River Street, which application consisted entirely of the
following work description:
Change existing damaged and inoperable windows to Harvey
Majesty 2/2 (design that's been approved by commission). Put in
two new skylights on River Street side of building with new one.
but keep the other. Possibly remove one chimney and two
fireplaces. Remove existing aluminum siding. Replace sliding
windows on porch with something more appropriate,to style of
house (open to suggestions). Emphasis added.
45. Mr. Corrigan submitted no plans, elevations, drawing, or other specific information
whatsoever in support of his application prior to, or at, at the initial Zoom hearing on his
above application for a Certificate Of Appropriateness before the initial Zoom hearing of
the Salem Historical Commission on Wednesday, April 21, 2021.
46. A number of neighbors filed letters opposing said application based on the application's
utter lack of specificity alone.
47. Thus,the Salem Historical Commission and the public had no information with which to
make an informed decision at the initial Zoom hearing on April 21, 2021 Zoom hearing on
Mr. Corrigan's application for a Certificate Of Appropriateness and how he intended to
restore 23 River Street.
48. Basically, Mr. Corrigan's entire presentation to the Commission amounted to his saying
"I'm a nice guy" and"I know how to fix up old houses"and"I just want to do the right
thing.
49. The Commission unanimously found Mr. Corrigan's application and presentation to be
completely inadequate and ordered him to submit detailed elevations in advance of its next
monthly Zoom meeting on Wednesday, May 19, 2021.
50. Mr. Corrigan did not supply the written documentation requested by the Commission for its
next monthly Zoom meeting on Wednesday, May 19, 2021, and instead requested a
continuance to the Commission's next monthly Zoom meeting on Wednesday, June 16,
2021.
51. Mr. Corrigan likewise failed to submit the written documentation requested by the
Commission for its next monthly Zoom meeting on Wednesday, June 16, 2021, and again
requested a continuance to the next monthly Zoom meeting thereafter on Wednesday, July
16, 2021.
6
52. Finally, in exasperation over the fact that Mr. Corrigan had still not submitted the
information and documentation it had requested on April 21, 2021, and did not even bother
to remotely participate in the July 16, 2021 Zoom hearing, the Commission voted
unanimously on July 20, 2021 to deny Mr. Corrigan's April 8, 2021 application for
Certificate Of Appropriateness without prejudice.
Thomas St. Pierre's March 29 2021 Buildinz Permit& MaN 20 2021 Decision
53. On May 6, 2021 Attorney John H. Carr,Jr., "representing a number of long-term
neighboring residents who are willing to sign affidavits that whatever prior non-conforming
use 23 River Street had as a two-family dwelling was lost through discontinuance well over
two years ago,"wrote to Salem Building Inspector Thomas St. Pierre proactively stating
"My understanding is that a Paschal Corrigan has purchased 23 River Street and believes
that he can develop it as a two-family dwelling as a matter of right without the need for
zoning relief simply because the property is located in an R-2 Zoning District,
notwithstanding that the property does not meet the requirements for a two-family,
including with respect to the parking requirements for a two-family contained within the
Salem Zoning Ordinance." A copy of said letter is attached hereto as Exhibit B.
54. Mr. St. Pierre responded by letter dated May 20, 2021, a copy of which is attached hereto
as Exhibit C.
55. Said letter was sent to Mr. Carr by certified mail, by regular mail, and by email at 1:52 PM
on Thursday, May 20, 2021.
56. Mr. St. Pierre's May 20, 2021 letter recited the following in relevant part:
(a) On March 29, 2021, he issued a building permit"for renovations to the two-
family dwelling located at 23 River Street;"
(b) "It is my opinion that the nonconforming dwelling located on 23 River Street
has not lost its protected status because it has not been abandoned and it has
been sufficiently used"—Emphasis added;
(c) "Of note, although it appears the property has been in foreclosure, the bank
continued to secure the property, has kept the water on,paid the real estate
taxes and conducted a substantial environmental cleanup of the property"—
Emphasis added.
57. The foregoing was the first that the surrounding neighbors became aware of the March 29,
2021 Building Permit he issued because Mr. Corrigan did not prominently display it on the
property, as required by law, and there was virtually no activity at 23 River Street between
his purchase of the property on February 8, 2021 and May 6, 2021.
58. Mr. Carr replied by letter to Mr. St. Pierre at 3:09 PM that same afternoon, a copy of which
is attached hereto as Exhibit D.
7
59. Mr. Carr's reply letter recited the following in relevant part:
(a) I wish you had spoken to many long-term residents, including
several key abutters, before reaching your conclusion that the bank
has in fact and/or as a matter of law"secured the property"or
"conducted a substantial environmental cleanup at the property";
(b) Indeed, your letter is long on self-serving generalizations and short on dates
and details, especially given the extraordinarily long period of time—years, not
months, and many,many years at that—of how long this property has been
totally unoccupied and totally unused;
(c) Without limiting the generality of the foregoing, I would ask, in particular,
that you furnish me with copies of the water bills for the entire period that 23
River Street has supposedly been inactive. It is one thing for the water to have
been kept on,but do the water bills show what water was actually used? In that
sense the water bills would be documents that actually support our position;
(d) The same even more applies to the `substantial cleanup at the property' you
claim has occurred, or when it occurred, as I am sure that your statement will be
news to the people who actually live adjacent to 23 River Street or nearby 24
hours a day, 7 days a week, 52 weeks a year;
(e) Indeed,that you would conclude your investigation(1) without taking
advantage of the offer I made in my May 6, 2021 letter about providing you with
multiple affidavits from long-term knowledgeable neighbors and (2)that you
didn't even bother to make an effort to speak to any of the neighbors would also
seem to be serious errors of judgment and process on your part;
(f) I hope that whatever animosity you may feel toward me or my neighborhood
has not interfered with your professional judgment as Salem's Zoning
Enforcement Officer; and
(g) I am herewith formally requesting that you supply me by return mail
with all the supporting information and documentation,including dates, on
which you based your May 20,2021 Opinion Letter.
60. At 2:25 PM on Tuesday, May 25, 2021 Joanne M. Rooney, Paralegal and Records Access
Officer for the City of Salem Legal Department furnished the following documents in
response to Mr. Carr's May 20,2021 public records request:
(a) A Summary of Salem water charges for 23 River Street,which basically
confirms the Plaintiffs' contentions regarding occupancy and non-occupancy at
23 River Street for the period October 6, 2009 to April 6, 2021 inclusive,which
also dispels Mr. St. Pierre's factual findings;
8
(b) A 4-page document entitled"Waste Site & Reportable Release Information"
with a"Compliance Date of 01/17/2020,"which appeared to be irrelevant to Mr.
St. Pierre's May 20, 2021 Decision or his investigation giving rise to it;
(c) Copies of Mr. Carr's two May 6, 2021 letters to Mr. St. Pierre.
61. Mr. Carr subsequently appealed Mr. St. Pierre's May 20, 2021 decision to the full Salem
ZBA within the thirty days mandated by Sections 8 and 15 of Chapter 40A of the
Massachusetts General Laws.
62. A package consisting of the Affidavits of Frederick C. Biebesheimer, IV and Lisa Ann
Spence, both of 17 1/2 River Street, each and dated July 19, 2021, and of Jeremiah J.
Jennings of 18 River Street, Justin Whittier of 10 River Street, and John H. Carr, Jr., Esq.
of 7 River Street, each dated July 20, 2021, was filed with the ZBA on July 20,2021 and
became part of the official record.
63. Each of the five Affiants had direct, first-hand knowledge of 23 River Street for over
twenty (20)years.
64. The original ZBA hearing was scheduled for Wednesday, July 21, 2021.
65. At 9:35 AM on Tuesday, July 20, 2021 Mr. Carr received an email from the Clerk of the
ZBA, Lev McCarthy, informing him that"The owner of 23 River Street,Mr. Corrigan,
came by my office this morning. He explained that he only learned of tomorrow night's
meeting from emails you sent him this week," adding I expect he will submit a written
request to the Board ahead of tomorrow night's meeting, so I wanted to send you this
update."
66. Mr. Carr responded by email at 11:55 AM on Tuesday, July 20,2021 making a number of
points, chief among them being that"This is not an appeal of some sort of relief that Mr.
Corrigan has obtained from the ZBA, but from the May 20, 2021 Decision of Tom St.
Pierre as Salem's Zoning Enforcement Officer"and"There was public notice published
twice in the Salem News for tomorrow night's appeal hearing."
67. Mr. Corrigan filed his written request for a continuance prior to the ZBA's July 21, 2021
Zoom meeting and it was granted.
Salem ZBA's September 22. 2021 Hearinp_And Vote
68. A Zoom hearing of the full ZBA was ultimately held on Wednesday, September 22, 2021,
at which Mr. St. Pierre, Mr. Corrigan and Mr. Carr each remotely participated.
69.Also participating remotely, although not mentioned in the findings in the October 6,2021
ZBA Decision, were Jeremiah J. Jennings of 18 River Street, Lisa A. Spence and her
9
husband, Frederick C. Biebesheimer, IV of 17 % River Street,Daniel Madigan of 14 River
Street, Justin Whittier of 10 River Street, and Carol Carr of 7 River Street.
70. The only person speaking in support of Mr. St. Pierre's position was Mr. Corrigan.
71. At the conclusion of a contentious hearing that lasted 43 minutes,the Board unanimously
voted to uphold Mr. St. Pierre's May 20, 2021, some saying they felt duty-bound to do so.
72. In a statement reminiscent of President Clinton's deposition answer that"That depends on
what `is' means," for which he was later disbarred, one ZBA member,namely Vicechair
Peter Copelas, went so far as to say words to the effect that"I've got to believe that
there's more nuance [in Section 3.3.6 of the Salem Zoning Ordinance] than simply
use." Emphasis added.
73. Section 3.3.6 of the Salem Zoning Ordinance provides the following in its entirety:
A nonconforming use or structure which has been abandoned or
not used for a period of two years, shall lose its protected status
and be subject to all of the provisions of this Ordinance.
Emphasis added.
FILING OF OCTOBER 10 2021 ZBA DECISION IN CITY CLERK'S OFFICE
74. The resulting October 6, 2021 Decision of the Salem ZBA was filed in the office of the
Salem City Clerk at 2:20 p.m. on Wednesday, October 6, 2021.
75. As to each of the following Counts,the Plaintiffs reaffirm, re-allege, and incorporate all of
the prior allegations contained in paragraphs 1-73 above.
ARGUMENT
COUNT I
THE SALEM ZBA'S OCTOBER 6,2021 DECISION VIOLATES THE EXPLICIT
PURPOSES OF THE SALEM ZONING ORDINANCE AND CHAPTER 40A
76. Among the express Purposes provided in Section 1.1 of the Salem Zoning Ordinance to
"promote the health, safety, convenience, morals or welfare of the inhabitants of Salem"
are the following:
to lessen congestion in the streets,...to secure safety from fire...
and other dangers....to provide adequate light and air; to prevent
overcrowding of land; to avoid undue concentration of
population., to facilitate the adequate provision of
transportation...and other public requirements; to conserve the
value of land and buildings; to encourage the most appropriate
use of land, and ...to prevent... community blight; to
ensure...compliance with the master plan of the City of Salem.;
10
all as authorized by, but not limited to, the provisions of the
Zoning Act, G.L. c. 40A, as amended; Section 2A of 1975 Mass.
Acts 808, and by Article 89 of the Amendments to the
Constitution of the Commonwealth of Massachusetts.
77. The ZBA's October 6, 2021 Decision does not comply with the following express Purposes
of the Salem Zoning Ordinance in that said Decision:
a. does NOT lessen congestion in the streets;
b. does NOT preserve health;
c. does NOT secure safety from fire and other dangers;
d. does NOT provide adequate light and air;
e. does NOT prevent overcrowding of land;
£ does NOT avoid undue concentration of population;
g. does NOT facilitate the adequate provision of transportation and other public
requirements;
h. does NOT conserve the value of land and buildings; and
i. does NOT encourage the most appropriate use of land throughout the City.
78. Salem City Assessor's records indicate that 23 River Street consists of a two-story structure
comprising 1,546 square feet on a total lot size of 2,108 square feet.
79. Thus, each of Mr. Corrigan's proposed units would amount to less than 750 square feet of
living space, since common areas and staircases would have to be subtracted, resulting in
only 562 square feet(2,108 square feet minus 1,546 square feet) being available for
parking and a yard.
80. The Salem Zoning Ordinance alternatively defines a"family" as constituting up to three
unrelated adults.
81. Thus,pursuant to Mr. St. Pierre's May 20, 2021 Decision and.the October 6, 2021
Decision of the ZBA affirming same, each of said three unrelated adults would have less
than 250 square feet of living space.
82. The Salem Zoning Ordinance requires 1.5 parking spaces for each dwelling unit in a R-2
Zoning District.
83. Pursuant to Section. 5.L et seq. of the Salem Zoning Ordinance, the minimum dimensions
of a parking space "shall be at least nine (9) feet in width" and "at least eighteen (18) feet
in length." Emphasis added.
84. In addition, Section 5.1.8 of the Salem.Zoning Ordinance provides that "Each parking
area shall contain not less than three hundred (300) square feet of gross area for
each dwelling unit." Emphasis added.
11
85. Moreover, Section 5.1.5 of the Salem Zoning Ordinance prohibits so-called tandem (i.e.
back-to-back) parking.
86. Thus, pursuant to Mr. St. Pierre's May 20, 2021 Decision and the October 6, 2021
Decision of the ZBA affirming same, each of the two units could have up to six vehicles
where less than 562 square feet of outside space (since a vehicle can not get past the front
door) is available for parking and a minimum of 600 square feet is required.
87. Accordingly, said October 6, 2021 Decision does NOT comply with either the express
Purposes of Section 1.1 of the Salem Zoning Ordinance or the Master Plan of the City of
Salem.
88. For the foregoing reasons alone, the Salem ZBA exceeded its authority and said October 6,
2021 Decision must be annulled in its entirety.
COUNT II
THE SALEM ZBA'S OCTOBER 6,2021 DECISION CONTAINS NO
SUBSTANTIVE FINDINGS AND IS A CLASSIC EXAMPLE OF
CONCLUSIONARY SELF-SERVING CIRCULAR REASONING
89. The October 6, 2021 Decision contains no substantive findings in support of said Decision.
90. Instead, it is a kind self-serving syllogism that basically amounts to the following: (a) Mr.
St. Pierre is knowledgeable and always makes the right zoning decisions, (b)Mr. St. Pierre
made his May 20, 2021 Decision concerning 23 River Street, (c)therefore Mr. St. Pierre's
May 20, 2021 Decision concerning 23 River Street is the right zoning decision.
91. Such transparently absurd circular reasoning would be hilarious if the consequences for the
neighborhood in general, and the immediate neighbors in particular, were not so disastrous.
92. "Statement of Fact"No. 16 and"Statement of Fact"No. 18 in the October 6, 2021 ZBA
Decision alone are classic examples of conclusionary self-serving circular reasoning.
93. For the foregoing reasons alone, the Salem ZBA exceeded its authority and said October 6,
2021 Decision must be annulled in its entirety.
COUNT III
THE SALEM ZBA SHOULD HAVE SUSPENDED THE SEPTEMBER 22,
2021 HEARING IN ORDER TO OBTAIN A WRITTEN LEGAL OPINION
FROM THE CITY SOLICITOR REGARDING THE CONFLICTING
MATERIAL ISSUES ABOUT WHICH THE ZBA CLEARLY HAD NO
ANSWERS
12
94. "Statement of Fact"No. 16 recites in relevant part that Vicechair"Peter Copelas stated that
he has to believe that there is more nuance to the definition of use than the petitioner
[the within Plaintiffs] is proposing."Emphasis added.
95. At that point it would have been right and proper for the Board to suspend the September
22, 2021 hearing in order to obtain a written legal opinion from the Salem City Solicitor
before voting at its next regularly scheduled Zoom meeting on October 20, 2021.
96. Instead, it proceeded to a vote that same evening based on pure conjecture on this material
legal point, and wrong conjecture at that.
97. For the foregoing reasons alone, the Salem ZBA exceeded its authority and said October 6,
2021 Decision must be annulled in its entirety.
COUNT IV
A RECENT DECISION BY THE MASSACHUSETTS LAND COURT
CLEARLY DEMONSTRATES THAT BOTH MR. ST. PIERRE'S MAY 20,
2021 DECISION AND THE ZBA'S BLIND AFFIRMATION OF THAT
DECISION WERE CLEARLY WRONG
98. 120 Front Street, LLC v. Marion Zoning Board of Appeals, MISC 18-000191 (February 21,
2019) is a recent decision of the Massachusetts Land Court (Vhay,J.)that clearly shows
that the Building Inspector of Marion, Massachusetts acted correctly by refusing to issue a
Building Permit on remarkably comparable essential facts.
99. It is clear from a reading of said decision that had Marion acted otherwise, and instead
followed the reasoning in Mr. St. Pierre's May 20, 2021 Decision and the October 6,2021
Decision of the Salem ZBA, the Marion case would have been overturned.
100. The 120 Front Street, LLC v. Marion Zoning Board of Appeals case is a correct recital of
substantive Massachusetts zoning law that should have been applied by both Mr. St.
Pierre and the Salem ZBA.
101. Among the applicable excerpts from said decision are the following:
(a) The "not used test" contemplates a simple cessation of a nonconforming use
for a period of two years,with no regard to whether the cessation was
intentional or unintentional, citing Orange v. Shay, 68 Mass. App. Ct. 358, 363
(2007), quoting Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664,
669 (1987) Emphasis added;
(b) Section 6's treatment of nonconforming uses manifests the public-policy
objective of eliminating, eventually, all such nonconformities. See Dial Away,
41 Mass. App. Ct. at 170; Davis v. Zoning Bd. of Appeals of Chatham, 52 Mass.
App. Ct. 349, 358 (2001) Emphasis added;
13
(c) And where (as here) a town has adopted a zoning bylaw that employs both the
"abandonment" and the "not-used-for-two-years-or-more" option allowed
under c. 40A, Section 6,those tests arc disjunctive: failing one is fatal to a
permit application as failing both. See Ka-Hur Enterprises, Inc. v. Zoning Bd.
of Appeals of Provincetown, 424 Mass. 404, 406 (1997) Emphasis added.
102.For the foregoing reasons alone,the Salem ZBA exceeded its authority and said October 6,
2021 Decision must be annulled in its entirety.
COUNT V
THE SALEM ZBA'S LACK OF CONTROL AT THE SEPTEMBER 22,
2021 HEARING VIOLATED FUNDAMENTAL DUE PROCESS,
INCLUDING BY ALLOWING NON DISCLOSED HEARSAY ON THE
PART OF MR. ST. PIERRE AND BY ALLOWING PASCHAL
CORRIGAN TO FREQUENTLY INTERRUPT AND CALL THE
PLAINTIFFS' ATTORNEY A LIAR
103.At the September 22, 2021 ZBA hearing Mr. Corrigan's behavior was an assault on both
truth and decorum.
104.Not only did he deny that the Salem Historical Commission's July 16, 2021 vote
unanimously denying his April 8, 2021 application for Certificate Of Appropriateness
without prejudice had occurred, he frequently interrupted Mr. Carr's presentation by calling
him a liar until he finally had to be muted.
105.And yet when Mr. Carr attempted to raise questions about Mr. St. Pierre's reliability as a
witness, he was prevented from doing so by Chair Duffy.
106.And the same lack of even-handed and fair treatment continued with Mr. St. Pierre being
allowed to refer generally to self-serving hearsay conversations he allegedly had with the
City Solicitor, whereby he claimed that she totally agreed with his May 20, 2021 letter,
without Mr. Carr being allowed to briefly ask Mr. St. Pierre about the details.
107.The ZBA clearly accepted such hearsay as conclusively deciding all of the legal issues
surrounding his May 20, 2021 letter.
108.As clearly indicated in 120 Front Street, LLC v. Marion Zoning Board of Appeals, MISC
18-000191 (February 21, 2019), such hearsay conclusions couldn't be more wrong.
109.For the foregoing reasons alone,the Salem ZBA exceeded its authority and said October 6,
2021 Decision must be annulled in its entirety.
14
COUNT VI
THE CONVERSATIONS BETWEEN MR. ST. PIERRE AND THE CITY
SOLICITOR WERE NOT PROTECTED BY THE ATTORNEY CLIENT
PRIVLEGE BECAUSE MR. ST. PIERRE HAD WAIVED THE PRIVLEGE
BY PUBLICLY INVOLVING THEM IN THE SUBSTANTIVE
DISCUSSION DURING THE SEPTEMBER 22,2021 ZBA HEARING ON
23 RIVER STREET
110.In order to preserve the Attorney/Client privilege there can be no selective sharing of what
was discussed between the client and the attorney with others.
111.Here, because the September 22, 2021 ZBA hearing was a Zoom hearing,he was literally
sharing his discussions potentially with the entire approximate 40,000 population of Salem.
112.It is a matter of fundamental Massachusetts law that Mr. St. Pierre has waived the
attorney/client privilege.
113.For this and other directly related reasons, as herein described the Salem ZBA exceeded its
authority and said October 6, 2021 Decision must be annulled in its entirety.
COUNT VII
THE NON-DISCLOSED HEARSAY CONVERSATIONS BETWEEN MR.
ST. PIERRE AND THE CITY SOLICITOR WERE COVERED BY THE
PLAINTIFFS' PUBLIC RECORDS REQUEST AND ANY NOTES,
WRITINGS,EMAILS, CORRESPENDENCE AND/OR OTHER SUCH
DOCUMENTATION SHOULD HAVE BEEN PART OF THE CITY'S
DISCLOSURE BY JOANNE M. ROONEY AT 2:25 PM ON TUESDAY,
MAY 25, 2021
114.An open-ended written public records request was made by Mr. Carr on Friday, May 20,
2021.
115.Based on Mr. St. Pierre's statements at the September 22, 2021 ZBA hearing on 23 River
Street,the City's disclosure by Joanne M. Rooney, Paralegal and Records Access Officer
for the City of Salem Legal Department, at 2:25 PM on Tuesday, May 25, 2021 was less
than complete.
116.The Plaintiffs were clearly prejudiced by said incomplete disclosure.
117.For the foregoing reasons alone,the Salem ZBA exceeded its authority and said October 6,
2021 Decision must be annulled in its entirety.
15
COUNT VIII
THE SALEM ZBA'S SOLE PURPORTED CONCLUSION OF LAW IN
ITS OCTOBER 6,2021 DECISION THAT MR. ST. PIERRE MET HIS
BURDEN OF PROOF IS WHOLLY CONJECTURAL,ILLUSORY,AND
WISHFUL THINKING
118.The overwhelming evidence submitted at and before the September 22, 2021 ZBA hearing
supported the Plaintiffs' contention that the prior non-conforming uses at 23 River Street
had been discontinued for well over the two year requirement provided in Section 3.3.6 of
the Salem Zoning Ordinance, both before and after the February 23, 2016 Foreclosure
Deed from Countrywide Home Loans, Inc. to Fannie Mae.
119.Indeed,the overwhelming evidence alluded to by Mr. St. Pierre in his May 20, 2021
Decision that was produced on Tuesday, May 25, 2021 by Joanne M. Rooney, Paralegal
and Records Access Officer for the City of Salem Legal Department in response to Mr.
Carr's May 20, 2021 public records request supported the Plaintiffs contentions and
NOT Mr. St. Pierre' May 20,2021 Decision.
120.Further, Vicechair Copelas' quoted statement in"Statement of Fact"No. 16 has the burden
of proof backwards. The burden of proof was on Mr. St. Pierre, not the Plaintiffs.
121.That fatal error was compounded by the quote of Chair Mike Duffy as recited in
"Statement of Fact"No. 18, which likewise totally misconstrued who had the burden of
proof.
122.Indeed, under Chair Duffy's interpretation of how little evidence is necessary to sustain a
Building Inspector's decision, such decision could never be overturned as a practical
matter.
123.See also Count IV above, which is incorporated herein by reference.
124.For the foregoing reasons alone,the Salem ZBA exceeded its authority and said October 6,
2021 Decision must be annulled in its entirety.
RELIEF SOUGHT
The Plaintiffs respectfully request that this Court:
a. Enter Judgment in their favor annulling in full the October 6, 2021 Decision of the Salem
ZBA;
b. Award the Plaintiffs 100% of the attorney's fees and costs incurred in connection with
the filing and prosecution of this appeal, especially in light of the ZBA's chronic and
16
flagrant disregard of Massachusetts zoning law,proper procedure, and the public, as well
as by their subordinate Mr. St. Pierre in this and related matters;
c. Grant such other relief as is just and expedient.
Respectfully submitted,
Jeremiah Jennings,et al,
By their attorney,
October 25, 2021
John H. Carr, Jr., Esq.
7 River Street
Salem, MA 01970
(978) 807-3264
BBO# 075280
Email:johnhenrycarr@gmail.com
17
�ONUIP,!
P CITY OF SALEM MASSACHUSETTS
BOARD OF A�WP s 6 2• 20
A
98 WASMNGTON STREET SALEM,MAS&SA S1 ,0 4ASS
KIMBERLEYDRISCOLL TEL-978-619-5685
MAYOR
October 6,2021
Decision
City of Salem Board ofAppeals
Petition of JOHN H.CARR,JR. to appeal a decision of the Building Inspector per M.G.L
ch.40A sections 8 and 15.The petitioner is appealing the Building Inspector's decision that
23 RIVER STREET (Map 26,Lot 644) (112 Zoning District)is a lawfully existing non-
conforming lot containing a lawfully existing non-conforming structure.
A public hearing on the above Petition was opened on July 21,2021,pursuant to M.G.L Ch. 40A,§
11;continued to September 22,2021,and closed on that date.
On July 21, 2021, Mike Duffy (Chair), Peter Copelas, Paul Viccica, Rosa Ordaz, Carly McClain,
and Steven Smalley(alternate)were present; no members were absent;no testimony was heard. On
September 22,2021,Mike Duffy (Chair), Peter Copelas, Paul Viccica, Rosa Ordaz, and Carly
McClain were present;Steven Smalley(Alternate)was absent.
The petitioner seeks to appeal a decision of the Building Inspector per M.G.L ch.40A sections 8 and
15. The petitioner is appealing the Building Inspector's decision that 23 River Street is a lawfully
existing non-conforming lot containing a lawfully existing non-conforming structure.
Statements of Fact:
1. On March 29,2021,the owner of the property at 23 River Street was issued a building
permit to renovate an existing non-conforming two-family residential structure in the
Residential Two-Family(R2)zoning district.
2. On May 6,2021,John H. Carr of 7 River Street submitted a written statement to Building
Inspector Tom St.Pierre via email requesting an enforcement action,specifically that Mr.St.
Pierre revoke the building permit issued on May 6,2021,and require the owners of 23 River
Street to seek zoning relief for their proposed renovations.
3. On May 20,2021,Mr.St.Pierre submitted a written response to Mr. Carr stating Mr. St.
Pierre's decision to not revoke the building permit for 23 River Street.
4. In the petition date-stamped June 17,2021,the petitioner submitted to the Zoning Board of
Appeals an application to appeal a decision of the Building Inspector from May 20,2021
(the"Decision").In the written Decision,the Building Inspector states in part,"the non-
conforming dwelling located on 23 River Street has not lost its protected status because it
City of Salem Board of Appeals
October 6,2021
Project: 23 River Street
Page 2 of 4
has not been abandoned and it has been sufficiently used. Of note,although it appears the
property has been in foreclosure,the bank has continued to secure the property, has kept the
water on, paid the real estate taxes and conducted a substantial environmental cleanup at the
property". In the application to the Zoning Board of Appeals,the petitioner,Mr.Carr, asked
the Zoning Board to overturn Mr. St.Pierre's May 20,2021,Decision regarding 23 River
Street.
5. 23 River Street is owned by Paschal Corrigan.
6. On July 19,2021,the Board received five affidavits signed by the following individuals:John
H. Carr Jr. of 7 River Street,Jeremiah Jennings of 18 River Street,Justin Whittier of 10 River
Street,Frederick C.Biebesheimer,IV of 17 t/z River Street,and Lisa Ann Spence of 17 '/2
River Street.The affidavits stated in part:"Having in mind that there are more than five
years that 23 River Street was completely empty and unoccupied between February
16,2016 and February 8,2021,when Paschal Corrigan acquired title to the property, and
having in mind that a prior nonconforming use`shall lose'such use if`not used for a
period of two years,'absolutely no convincing or persuasive evidence to the contrary has
been introduced in support of Mr. St.Pierre's May 20,2021 Opinion".
7. Prior to the July 21,2021,public hearing.The property owner,Paschal Corrigan, contacted
Staff Planner Lev McCarthy in-person and via email requesting that the board continue the
petition to the"next available meeting of the zoning board and not beyond".
8. Due to the ongoing COVID-19 pandemic and related precautions and An Act Extending
Certain COVID-19 Measures Adopted During the State of Emergency signed into law
by Governor Baker on June 16,2021,the July 21,2021,meeting of the Board of Appeals was
held remotely,via the online platform Zoom.
9. At the July 21,2021,public hearing the petitioner,Attorney John H. Carr, introduced
himself to the Board.Mr. Carr stated that he received a request from the property owner to
continue the public hearing(see statement#7 above).Mr. Carr requested to continue the
public hearing to the regularly scheduled meeting on September 22,2021.The Board voted
five(5)in favor(Mike Duffy (Chair),Peter Copelas,Rosa Ordaz,Paul Viccica,and Carly
McClain)and none (0) opposed to continue the hearing to the regularly scheduled meeting
on Wednesday,September 22,2021,at 6:30 pm.
10. For the same reason noted in statement#8 above,the September 22,2021,meeting of the
Salem Zoning Board of Appeals was held remotely,via the online platform Zoom.
11. At the September 22,2021,public hearing,petitioner John H. Carr discussed the appeal
petition.Mr. Carr stated he has lived at 7 River Street for forty-eight (48)years and has first-
hand knowledge of 23 River Street.Mr.Carr stated that well over two(2)years before
Paschal Corrigan purchased 23 River Street in February 2021,the property had been
completely empty with no residents . Mr. Carr stated that 23 River Street had the look of a
completely abandoned building.Mr. Carr mentioned the five affidavits submitted to the
Board from neighbors who attest that the home was abandoned (see statement#6 above).
City of Salem Board of Appeals
October 6,2021
Project: 23 River Street
Page 3 of 4
Mr. Carr stated the burden is on the Building Inspector to argue that the home has not gone
into disuse.Mr. Carr repeated three statements from Mr. St.Pierre's May 10,2021,written
decision.Mr. Carr described those statements to be: 1)The bank had foreclosed on
mortgage continued to pay real estate,2) the bank maintained heat and paid water bills and
water connection,and 3)the bank paid for cleanup of the property.Mr. Carr argued that
none of those reasons have anything to do with use of the property. Mr. Carr concluded his
testimony by saying that if the owner wants to have a two-family at 23 River Street they need
to apply for a special permit and have the Zoning Board of Appeals vote to approve it.
12. At the September 22,2021,public hearing the property owner,Paschal Corrigan offered
testimony.Mr. Corrigan stated that if a bank owns a property it should not count as
abandoned.
13. At the September 22,2021,public hearing the Board asked questions of the petitioner. Peter
Copelas stated that just because there is no tenant does not mean there was an abandonment
of use.Mr. Copelas asked Mr. Carr: what constitutes abandonment?The petitioner,John H.
Carr stated that the State Legislature changed the meaning of discontinuance to entail only
use,not abandonment.
14. At the September 22,2021,public hearing Building Inspector Tom St.Pierre offered
testimony.Mr. St.Pierre stated the decision dated May 10,2021,was written in consultation
with City Solicitor Beth Rennard. He states that Mr. Carr has a simple read of
discontinuance and nonuse that relies on use,but Mr. St.Pierre's interpretation of nonuse
requires intent.
15. At the September 22,2021 public hearing five (5)members of the public spoke in favor of
the petition.No(0)members of the public spoke in opposition to the petition. Those
speaking in support were Justin Whittier of 10 River St,Jeremiah Jennings of 18 River Street,
Justin Whittier of 10 River Street,Frederick C.Biebesheimer,IV of 171/2 River Street,and
Lisa Ann Spence of 17'/2 River Street.
16. At the September 22,2021,public hearing Peter Copelas stated that he has to believe that
there is more nuance to the definition of use than the petitioner is proposing. Mr. Copelas
stated that because St.Pierre consulted with the City Solicitor,he feels that they have not
been presented with enough evidence to overturn the permit and decision of the Building
Inspector.
17. At the September 22,2021,public hearing the voted five (5)in favor(Carly McClain,Mike
Duffy (chair),Rosa Ordaz,Peter Copelas,and Paul Viccica),and none(0) opposed to close
the public hearing and proceed to discussion amongst the Board.
18. At the September 22,2021,public hearing,Chair Duffy discussed the petition,evidence,and
findings. He stated that in Salem,Building Inspector Tom St.Pierre is the person charged
with interpreting the Salem Zoning Ordinance.In this case,Mr.St.Pierre consulted with
City legal counsel,and responded to the request for enforcement from Mr. Carr with a
written statement that incorporated evidence that supported his decision that there was not
4 City of Salem Board of Appeals
October 6,2021
Project: 23 River Street
Page 4 of 4
an intentional disuse;that the bank continued to pay the taxes,kept the water on,and
conducted an environmental cleanup.Mr.Duffy agreed with Mr. Copelas that they value Mr.
St. Pierre's decision,opinions,and interpretation of the Zoning Ordinance.Mr.Duffy stated
that based on the evidence considered in the record at the public hearing,Mr. St.Pierre's
decision was sufficiently supported and the applicant has not convinced the Board that
reasons existed to sustain this appeal of the Building Inspector's May 10,2021,decision.
On the basis of the above statements of fact and findings,the Salem Board of Appeals voted none (0)
in favor and five (5)opposed (Paul Viccica,Peter Copelas,Mike Duffy, Carly McClain,Rosa Ordaz)
to the petition of JOHN H. CARR,JR. to appeal a decision of the Building Inspector per M.G.L
ch.40A sections 8 and 15.The petitioneris appealingthe Building Inspector's decisionthat 23 RIVER
STREET(Map 26,Lot 644) (R2 Zoning District)is a lawfully existing non-confomnung lot containing
a lawfully existing non-confirming structure.
The administrative appeal was denied.
Mike Duffy, Chair
Board of Appeals
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK.
Appeal from this decision,if any,shall be made pursuant to Section 17 of the Massachusetts General
Laws Chapter 40A,and shall be filed within 20 days of filing of this decision in the office of the City
Clerk.Pursuant to the Massachusetts General Laws Chapter 40A,Section 11,the Variance or Special
Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the
City Clerk has been filed with the Essex South Registry of Deeds.
A TRUE COPY ATTEST
SALEM,MASS.
G
John H. Carr, Jr., Esq.
7 River Street
Salem, MA 01970
Phone: 978-807-3264
Email: johnhen:rvearr;a>pm.ail..com
May 6, 2021
By Email: tstpierre@salem.com
Thomas St. Pierre,
Salem Building Inspector and Zoning Enforcement Officer,
Salem Building Department,
Salem, MA 01970
Re: 23 River Street and 10 Lynn Street
Dear Tom:
I represent a number of long-term neighboring residents who are willing to sign affidavits that
whatever prior non-conforming use 23 River Street had as a two-family dwelling was lost
through discontinuance well over two years ago and that, similarly, 10 Lynn Street has been used
as a single-family dwelling for approximately the last fifteen years.
My understanding is that a Paschal Corrigan has purchased 23 River Street and believes that he
can develop it as a two-family dwelling as a matter of right without the need for zoning relief
simply because the property is located in an R-2 Zoning District,notwithstanding that the
property does not meet the requirements for a two-family, including with respect to the parking
requirements for a two-family contained within the Salem Zoning Ordinance.
My understanding also is that a Mark Tranos has purchased 10 Lynn Street, or has the property
under agreement, and likewise intends to convert it into a two-family for similar reasons.
We assume you agree with the above facts and how they relate to the requirements of the Salem
Zoning Ordinance and that your department will not issue building permits for a two-family until
and unless the developers have sought the appropriate zoning relief in each case.
If I am wrong on this, would you kindly notify me in writing and include how you maintain that
we differ on either the facts or the applicable provisions of the Salem Zoning Ordinance.
If your department has already issued building permits for a two-family for either property,
kindly treat this letter as an appeal of such building permit to the Salem Zoning Board of
Appeals.
Thank you in advance for your cooperation, and in the event you have any questions in the
meantime,please do not hesitate to email them to me.
Very truly yours,
/S/
John H. Carr, Jr., Esq.
2
Y! f C,
' CITY OF SALEM, MASSACHUSETTS
Wki BUILDING DEPARTMENT
98 WASHINGTON STREET,2ND FLOOR
TEL. (978) 745-9595
KIMBERLEY DRISCOLL
MAYOR THOMAS ST.PIERRE
DIRECTOR OF PUBLIC PROPERTY/BUILDING COMMISSIONER
May 20, 2021
John H. Carr, Jr. Esq.
7 River Street
Salem, MA 01970
Re: 23 River Street and 10 Lynn Street
Dear Mr. Carr:
I write in response to your May 6, 2021 letter regarding the above-referenced properties.
23 River Street
On March 29,2021, a building permit issued for renovations to the two-family dwelling located
at 23 River Street. . The use of 23 River Street for a two-family dwelling is a conforming use
because that use is permitted in the R-2 District. 23 River Street is however, a lawfully existing
non-conforming lot containing a lawfully existing non-conforming structure. Section 3.3.6 of the
City's Zoning Ordinance provides: "A nonconforming use or structure which has been
abandoned, or not used for a period of two years, shall lose its protected status and be subject to
all of the provisions of this Ordinance."It is my opinion that the nonconforming dwelling located
on 23 River Street has not lost its protected status because it has not been abandoned and it has
been sufficiently used. Of note, although it appears the property has been in foreclosure, the
bank continued to secure the property, has kept the water on,paid the real estate taxes and
conducted a substantial environmental cleanup at the property.
Further,to the extent that your May 6, 2021 letter is to be considered a request that the Building
Department revoke the building permit or take enforcement action against the property, that
request is not timely.
Accordingly, I am not going to revoke the building permit for 23 River Street.
Please note that your May 6, 2021 letter to me does not constitute a properly filed application
with the City's Zoning Board of Appeals and will not be treated as such.
,& CITY OF SALEM, MASSACHUSETTS
BUILDING DEPARTMENT
98 W ASHINGTON STREET,2ND FLOOR
TEL. (978) 745-9595
KIMBERLEY DRISCOLL
MAYOR THOMAs STTIERRE
DIRECTOR OF PUBLIC PROPERTY/BUILDING COMMISSIONER
Any person aggrieved by my decision may appeal to the City's Zoning Board of Appeals within
thirty(30)days pursuant to G.L. c. 40A, §§8 and 15.
I hereby reserve any and all rights to defend this decision against any such appeal and to advance
additional arguments in support of my decision.
10 Lynn Street
We are reviewing the information regarding 10 Lynn Street and I will follow up with you
regarding that property in the near future.
Sin ly, /
�� ,�'" .
Thomas St.Pierre
John H. Carr, Jr.,Esq.
7 River Street
Salem, MA 01970
Phone: 978-807-3264
Email: johnlien.n cars&gmail.com
May 20, 2021
By First Class Mail&By Email: tstpierre@salem.com
Thomas St. Pierre
Salem Building Inspector and Zoning Enforcement Officer
Salem Building Department
Salem, MA 01970
Re: Your May 20, 2021 Opinion Letter Re 23 River Street, Salem, MA 01970
Dear Mr. St. Pierre:
I am in receipt of your May 20, 2021 Opinion Letter, in response to my letter to you of May 6,
2021.
You write:
It is my opinion that the nonconforming dwelling located on 23 River
Street has not lost its protected status because it has not been
abandoned and it has been sufficiently used. Of note, although it
appears the property has been in foreclosure, the bank continued to
secure the property,has kept the water on, paid the real estate taxes
and conducted a substantial environmental cleanup at the property.
Emphasis added.
I wish you had spoken to many long-term residents, including several key
abutters, before reaching your conclusion that the bank has in fact and/or as a
matter of law"secured the property" or"conducted a substantial environmental
cleanup at the property."
Indeed,your letter is long on self-serving generalizations and short on dates and
details, especially given the extraordinarily long period of time--years,not
months, and many,many years at that-how long this property has been totally
unoccupied and totally unused.
I am herewith formally requesting that you supply me by return email with
all the supporting information and documentation,including dates, on which
you based your May 20,2021 Opinion Letter.
Without limiting the generality of the foregoing, I would ask, in particular,that
you furnish me with copies of the water bills for the entire period that 23 River
Street has supposedly been inactive. It is one thing for the water to have been
kept on,but do the water bills show what water was actually used? In that sense,
the water bills would be documents that actually support our position.
The same even more applies to the"substantial environmental cleanup at the
property"you claim has occurred, or when it occurred, as I am sure that your
statement will be news to the people who actually live adjacent to 23 River Street
or nearby 24 hours a day, 7 days a week, 52 weeks a year.
Indeed,that you would conclude your investigation(1)without taking advantage
of the offer I made in my May 6, 2021 letter about providing you with multiple
affidavits from long-term knowledgeable neighbors and (2)that you didn't even
bother to make an effort to speak to any of the neighbors would also seem to be
serious errors in judgment and process on your part.
I hope that whatever animosity you may feel toward me or my neighborhood has
not interfered with your professional judgment as Salem's Zoning Enforcement
Officer.
I very much expect that an appeal will be taken to the Salem Zoning Board of
Appeals ("ZBA") of your Opinion within thirty (30) days pursuant to G.L.c. 40A,
Sections 8 and 15.
1 am glad you closed your May 20, 2021 Opinion Letter by stating "I hereby
reserve any and all rights to defend this decision against any such appeal and to
advance additional arguments in support of my decision,"which is exactly why I
am requesting any all additional information and documents on which you
apparently based your Opinion.
After all, conclusions are meaningless without the crucial details and facts on
which they are based.
Very truly yours,
John H. Carr, Jr.
Cc. Neighbors—By Email
2
John H. Carr, Jr., Esq.
7 River Street
Salem, MA 01970
Phone: 978-807-3264
Email: johnhenrycarr@gmail.com
October 25, 2021
By Hand
Salem City Clerk '
Salem City Hall r o
93 Washington Street ` J `_�'
Salem, MA 01970
Re:Jeremiah Jennings, et al. v Paschal Corrigan and the Salem Zoning Board of `i
Appeals, Civil Action No: 2177CV01060
Dear Sir or Madam:
Enclosed for filing in the above-entitled action please find the following documents:
1. Notice To Salem City Clerk Of Plaintiffs'Appeal To Essex Superior Court Of
October 6, 2021 Decision of the Salem Zoning Board of Appeals Concerning 23
River Street, Salem, Massachusetts (Salem Assessors Map 26, Lot 664);
2. Copy of the Complaint I filed at 11:21 AM this morning in the Essex Superior
Court in Salem, namely Complaint Pursuant To M.G.L. Chapter 40A, Section 17
Appealing The October 6, 2021 Decision of the Salem Zoning Board of Appeals
Concerning 23 River Street, Salem, Massachusetts (Salem Assessors Map 26, Lot
664), including a copy of the certified copy of said Decision(Exhibit A")that was
attached to said Complaint.
Would you or someone from your office kindly file and date-stamp the above documents,
and also acknowledge receipt of the foregoing by date-stamping my enclosed file copies
of this cover letter and said enclosures.
Thank you in advance for your attention to the foregoing.
Very truly yours,
John H. Carr, Jr.
Enc.
Cc. Salem City Solicitor Elizabeth Rennard—By Hand
Plaintiffs—By Email
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT
CIVIL ACTION NO: 2177CVO1060
JEREMIAH JENNINGS, FREDERICK C. BIEBESHEIMER IV, )
LISA A. SPENCE, TIMOTHY DOGGETT, DANIEL MADIGAN, )
CHARLES von BRUNS, CAROL CARR, ANN WHITTIER, )
JUSTIN WHITTIER and DARROW A. LEBOVICI, )
PLAINTIFFS ) ''
V.
_.,
PASCHAL CORRIGAN and MIKE DUFFY(Chair),PETER ) :i-=I -a
COPELAS, PAUL VICCICA,ROSA ORDAZ, CARLY McLAIN, )
and STEVEN SMALLEY(Alternate), BEING THE MEMBERS )
OF THE CITY OF SALEM BOARD OF APPEALS ) CID
j
DEFENDANTS )
Notice To Salem City Clerk Of Plaintiffs' Appeal To Essex Superior Court Of
October 6, 2021 Decision of the Salem Zoning Board of Appeals Concerning 23
River Street, Salem,Massachusetts(Salem Assessor's Man 26, Lot 644)
I,John H. Carr, Jr., attorney for the Plaintiffs in the above-entitled action,hereby give formal
written notice to the Salem City Clerk with respect to the following:
1. At 11:21 AM on Monday, October 25, 20211 filed by hand a Complaint in the Essex
Superior Court appealing the October 6, 2021 Decision of the Salem Zoning Board of
Appeals (hereinafter"Salem ZBA") concerning 23 River Street, Salem,
Massachusetts;
2. Also included herewith are copies of my October 25, 2021 cover letter to the Civil
Clerk of the Essex Superior Court and said October 25, 2021 Complaint (including
copies of Exhibits A-D inclusive), both bearing today's 11:21 AM date-stamp of the
Essex Superior Court.
Respectfully submitted,
Jeremiah Jennings, et al,
By their attorney,
October 25, 2021
John H. Carr, Jr.,Esq.
7 River Street
Salem,MA 01970
(978) 807-3264
BBO#075280
Email:johnhenr rrgamail.com
CIVIL TRACKING ORDER DOCKET NUMBER Trial Court of Massachusetts
(STANDING ORDER 1-88) 2177CV01060 The Superior Court
CASE NAME Thomas H. Driscoll, Jr., Clerk of Courts
Jennings, Jeremiah et al vs. Paschal Corrigan As member of Salem board
of appeals et al
To: John H Carr, Jr., Esq. COURT NAME&ADDRESS
Law Offices of John H Carr Jr Essex County Superior Court- Salem
J. Michael Ruane Judicial Center
9 North St 56 Federal Street
Salem, MA 01970 Salem, MA 01970
TRACKING ORDER- F - Fast Track
You are hereby notified that this case is on the track referenced above as per Superior Court Standing
Order 1-88. The order requires that the various stages of litigation described below must be completed not later
than the deadlines indicated.
STAGES OF LITIGATION DEADLINE
SERVED BY FILED BY HEARD BY
Service of process made and return filed with the Court 01/24/2022
Response to the complaint filed (also see MRCP 12) 02/22/2022
'All motions under MRCP 12, 19, and 20 02/22/2022 03/24/2022 04/25/2022
All motions under MRCP 15 02/22/2022 03/24/2022 04/25/2022
All discovery requests and depositions served and non-expert I
08/22/2022
depositions completed
All motions under MRCP 56 09/20/2022 10/20/2022
I
Final pre-trial conference held and/or firm trial date set 02/17/2023
Case shall be resolved and judgment shall issue by 10/25/2023
The final pre-trial deadline is not the scheduled date of the conference.You will be notified of that date at a later time.
Counsel for plaintiff must serve this tracking order on defendant before the deadline for filing return of service.
This case is assigned to
DATE ISSUED ASSISTANT CLERK PHONE
10/25/2021 Jose Mejia (978)825-4800