0 BELLEVIEW AVENUE - PYBURN CONSTRUCTION - BUILDING INSPECTIONpr
BELLEVIEW AVENUE - I
PYBURN CONSTRUCTION '�� 00
L. ...
Avert a, 1962.
JIsMihg Boded s
l
City
MIeseis
Gentlemen: Att��iote m M�°s Y:a�9fi � rete
Appllcatiot s have bbs- �ilaaf 9¢i Shia tic® dor �` er�a`ite�
to erect five rev dull at Beh6 eat ��io ®f ill®vier►
street. These - de�Jl a Oft to e "
five variout areas bloelsod ott iM eolb* oda t. atR bEe d
plan.
As a matter of irsoriaati®ao thst eMo-'� oduth"O WA,ftrk6d
"A-A" on the plate, ie ®> oped b &t"Ota jW shown
are so called "g et° otree °�a . �°aai� go§�ti i®ffin efoeld be
the start of a large deont A8a tree aeforas;
it is impoartaaat that I 'of at Boon a� poaeA eat to
whether or east t dove ®, t .ieb tet t ® tRa® spxo al
of the plesmnibs 8aakde bad'- i� �i
have been on reaord 06t:o legs
JJORWO --
Enol. 1 �° m
RQ: ►ryburn Construction Corporation - Application for Sadorcom of at
Plan delieved not to Require Approval 8alleviesw Avenneq Salcu,
Massachnaotts
(lootloaanI
Having once appeared before your bwwrablo body in pursuit of a
previous application for endorsement of a plan believed not to soquLre
approval, I have been advised by my client that your honorable bmW
disapproved that application based on Insufficient evidence offored
In oul,1xrrt thereof. Consequently, i herewith submit at, behalf a! my
client a new and similar application topetb* witb� this letter in an
effort to substantiate our position that our pplication is not subjoct:
to the Subdivision Control Law an adopted by � City of Salon.
initially. I respectfully diroc i„a, tion to tho proviaiens
of MOL, C41, s SIL with particular t%a dafinitian of
"subdivision"". It to our canton that the plan is not,
comprised of a subdivis£oa sof ar tr land or raftax
•a "division of a tract of 1 to t or more loco". . On tho cosatrary,
we allege that the applie a subni a COl9h T H or
of existim lots Which we is a ly not wit Um doff
of a subdivision as &foresai s, such coubination at ounpeaiticsa
Is Comprised of lots w vo n in existence under a recordod
subdivision plan a 11> , l , to-witj "Picrpoat Park, Saler,
Mass. , August. 189 owned line John V. Desamand, Surveys,-,
Haverhill, b4acs." orded wi 828ex South District Registry of Deeds,
Booms of VIM& la, len 37. hwroore, reforrinp again to tho said
definition in the errod•to atute-, we feel that *aid cembinatiom
and/or composition 21s wi the specific exemption thereof as
lsrovided: aha of a tract of land into two or maze lots
sha11 q6 LW deemed to cwiotituts a subdivision within tho atnaniog of
the s ivision a ivol lave 1R, at the tiee when it is mads, every lot
withi the tracts divided has frontage on •'(a) a public way",
r1y, the are lots with frontage on a 11pubUc way" ulthin tbs
•ell• ►d •r Palo of the law. The street in Question has without
ode*t1esA baba...' , intained" by the City of Salam due to the construction
of a saved street , curbing* and side%mlxo. The Question as to ahstber
Of not a "public way" conaotatoe an "accepted street" bas &ripen. The
applicant contends And is proMared to submit a brief to substantiate his
position that such is not the law. This brief will be presented at
the tizae of the hearing on the within Application or upon the roquost
Of any One 01 your honorable" body, but due to its length and complexity
it is not herewith included.
May I rey;,eWullq point out that the spscifie exclusion under
said definition is an alternative And a qualification under either
alternative qualifies as appiieset tog a specific seclusion thereunder.
moreover, notwithstanding tbo isterprotation that such
c�i or in your interpretation thereof !alis within the toes
a c. vi 1�, I once n specifically refer to the eaee7laoiq
ge aqui!
under that isition in the abaft roforrod to statute, spoQUICa11Y
eamptinq subdivisions which have "tnnntage cin a public way".
With roforenoe to whether or not mregiatered land falls within
the effect of an accepted subdivision central lav, i respectfully
further direct yeses attention to KO ., C41, s d1FF, It is asst contention
that obs applicant fails .dtDia tba opeaitic tiou out" tharcin
as Pollees. Said statute apseifically rotor to a recording of a plan
prior to the adoption and/or aaasptaaao of cubdivision armful law
and specifically emmWW a prior rosorded vision plea, altbouGh it
is out firs oentention and aosfioticn that c nett aubfoct to 00
subdivision control laei 9or. *be r above. Theratore, not-
«ithatanding Your furtbot interpt ce that are still asbjeet to
the subdivision control lie, t imii fact taDtiate, in ter
opinion, inclusion within if exeeptia® upon the
followiafj facts i
The applicant purchased from the prior oases an April
4, 1962 although his was worded until July 2, 1963 la
asosx South Distric cif , Book 49421 Page 47. Clearly,
the purchass of as oto wa tion of certain lots as abown
an the above-refe to plea r is 1900, which as<wsaarily
ware held "in V ship apata from that of the remmindor of the
aubdiviaion". Mo to the inns and/or acceptance of the Sub-
division Control could rto lastly be effective against any prior
ped/ er' or recording of the aforesaid adoption
an Or eytanco to atrar of Deed* of the eassltY is which tbs
aocep city or lien+, which notification and/or reaordiag was
not pliahed il. July 12, 1962. all of this is clearly supported
by 41, s
is ea ly no question of sooing inasmuch as the Salem CitY
Council not "adopted" any saving rules and regulations to date.
Trusting that the foregoing will serve so sufficient bears tot
granting the aforesaid &pplieatian,
very truly yours,
PYBURN COMTRUCTWH CORPORATION
By its attornays
Richard M. Riley
INSTRUCTIONS TO DELIVERING EMPLOYEE
❑ Deliver ONLY to1:1Show address Where
addressee delivered.
(Additional charges required for these services)
RECEIPT
Received the numbered article described k-&1,*r side.
SIGNATU R NA OF ADDRESS must always bi led in)
SIGN A SEE'SY^^ AGENT,I
•
DATE DELIVERED F SHOW WHERE DELIVERED(only it requested)
APR 4 19CH
css—i1-11111-1—F oio
POST OFFICE DEPARTMENT PENALTY FOR PRIVATE Us!TO AVOID
OFFICIAL RUSINEIS AYMfNT OF PO TAOI,$300
4&3-'mAAK Orf
/OEII�ViFp1N0-0Ef\/(��!�
AP 24 AM
INSTRUCTIONS: Fill in items below and complete
e instmctions on other side,if applicable. 1---g-1.1.1-
Ends,
ngmmedends,attach and hold firmly to back of article. Print onT RR N t`
front of article RETURN RECEIPT REQUESTED. ^
$I REGISTERED NO. NA ER Y
CERTIFIED NO. STREET AND P. T, z
E
a INSUV!ED NO. CITY,ZONE ND STATE -
0 AI
O l C
n
. . CSS-. - S. -a
. .. .». April 16$ 1964V
• herrn :� t�ti. cx �� °}
7 Scach,Aquae,.
k
4 cc= to .my- att4bUon tbAt you titvaa
*into IM,
p r .14 givan by t?-a PlAnuir card
a xci'rtzct 7cuita t aka the fl 'l Otc wt 9 ,'
the & a 11 s 1 it vlcr v s whera
YOU 41sturbA4 tha 04uml, mdu tLAt a ff"tib those ar a"It
" ,O.' * tbz mtt�*I draluagA c= be r-z izt I=4*
'Very truly.
tio�r
tot
Olt �IICib r
A
Ott
Dept
i
----____ ----------- October 26, 1964. ,
Pyburn Construction Co.;'
7 ,Beach. Avenue,
Salem; Massachusetts.
Dear Mr. Pyburn': rRe: �8 Belleview Avenue:.
T note that there is a side wall along the•
property at the above mentioned addresswhich '
runs out beyond the property line out on to 'the
street.
This is to advise you .that you .should do
nothing beyond the property linea
Very truly yours,
WRB:cc
Act. lnspector of Buildings
------------------- 4
November 39 196 .:
Pyburn Construction Company,
7 Beach Avenue,
Salem,. Mass.
Dear Mr. Pyburn¢
It has come to my attention that you have the
road blocked off somewhere on Appleby -tRoad and
Sophia Road.
I wou4d suggest that you unblock this road
and fill up the cut that you have made through
in order that all of the trucking that goes up
to Appleby Road does .not have to turn around and
come -back.
Five or six of the people from Appleby Road
are complaining about this situation.
Our, fire engines have been up there over four
or five times- this Fall and have been unable to con-
veniently get down again.
.Very truly yours,
WRB:cc
Act. Inspector of Buildings
. 4
FORM C
i
fit.
LL AYYLICA_TiON FOR
OF' L`1:F:!\iTIVE PLAN
cc
File one completed form. with the Planning . a
and one copy with the City Clerk in accordance,
with the requirements of.Section II1-B.
Salem, Mass. rloVenrber 1.6 , 19 63 .
—_
To-the panning:Board.
The Undersigned herewith submits the accompanying Definitive Plan of
property located in` the City of Sa.tem for approval as a subdivision under
< the requirements of the Subdivision Control Law and the Rules and R(egu-
'tations Gov.rnin the Subdivision 'o£ Land of the.•Planning Board it the City
of Salem.
1, Name of Subdivider CO"JNTRY SHORE CORP.
Address 54 Main Street, Peabody . Massachusetts
2. Name of Engineer.or.Surveyor Edwi-n T. Brudzwj_nski
f .
Address260 Laf< ette Street, SaLc.m, A7assachusetts
- -
3 Deed of-property recordedin_Fssex South M strl ct: Registry,
Book _ Page ---
4, Location and Description of Property:
Hilton and Be lair Streets
of Belleview Avenue , Salem. .
CO`JNTRY S11012E CORP: '
By its Atttnrr
Of owilo)
- 1C1',4V 1. , iA'illiC,fY
Pcntbody � M-Sssaclui±tt::�
Alist of the r +ames and addr sses of Chc abutter:; of this ,ubdivisioit i:a at-
t
ing Board.
Verification will be ma lc by.th'! Plann
......._.:
Ell,. a/r 6� a
j
�n.csee; J. uu.r CLanx 34
J.;inS e! M. GNAW .n.
17. s,+i;". may I - o�elrm, >it;•.�valjuscttu
April 3 , 1964
Country Shore Corp. ,
10 Chestnut Street
Peabody , Hass.
G'<antlewen: Attention Mr . Francis Geary
At a Voeting of the Salem planning Board held
on AprJl 2nd, 1064 it was voted to deny approval
of the Country Shore Corporation Subdivision.
The reasons for the denial
1. Questionable access to the Subdivision
2 . Dispute as to ownership of parts of the
road leading to Subdivision
3 . Lack ox sufficient drainago available
on Belleview Street to handle additional
drainage of proposed Subdivision
4. - Unaccepta,ble street lay out due to sharp
turns in road.
Wery truly yours,
pII.Ald.XING /BOAMD(, CITY OF SALSH
B. F:OoprR CY�AIIb«1.Td
V
r
o. 4`d Yia 4'1
1
C '6 Y GLER1,'S 0
L�ril 6e 1966
City Clerk
City FAM
RO:- A PIiCWOM of Couctry Shoro Corp. for
cp?rov,-.I 0-1 C=QvQWw Man 02 Land
off SHO-2
Door Sirc -
G 0hal:P c, Ca;:ntry S-"ora Corp. , 54 main
'",�./1'� a�,.- � e L-•.w for an approval of
. apla18:.:x::
Plane Qbich plan fi.•.10 basin
$�)=�Cti CJ: S;<•3 voa 9".`V 6avro Wan Oisty dayu havUng
Unpaci .iow 'iva `4•Pldi g OZ caid p:az will YOU9
C;La t'% 12 :;ak:;g L.:: rd aci .r.waI6, of Heal% OZ Cho
MY 02 solo a, c.P t Ourovor =sio cz ;%
Laviag Olopcod witwo C O of `;;_,o e ncy
o act , h be Cir(. by n-il-:? u�Ji.,._r�.'wb o/j you wow b.
t:. 1 Planning
q
NS .,...0 UG:.G f 1L�i C•�iC?.Q LJ..:ru u' E7
... -v'G J _ irPe`._. CG..aC:=ee CJ9 CCa.0 vC::ruaV:.:.i C.i:3
Plan and Wal wppioval rccv!?i"g aroz vuC4 Zaijura
Low b0,003 0211.
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............_...............
.—COMMONWEALTH of MAssncHusETrs
ESSEX, SS. No.
COUNTRY SHORE CORP.
VS.
I
. AUGUSTINE J. TOObIEY, AS HE IS
THE CITY CLERK OF THE CITY OF
SALEM
i
i
i
I
PETITION FOR 0.%RIT OF MANDAMUS
And the Petitioner Says:-
1. It is a Corporation duly organized under the
laws of the Commonwealth of Massachusetts with an usual place
i
of business at 54 Main Street, Peabody, Essex County, Massachu-
setts, and is the owner of a certain parcel of land off Belle-
view Avenue, Salem, Essex County, Massachusetts as shown on a
i
subdivision plan attached hereto and marked "A."
2. That on or about November .:LO , 1963, the Petitioner
filed an application for approval of the above definitive sub-
division plan, a copy of which application is attached hereto
and marked "B," together with the definitive subdivision plan i
with the Planning Board of the City of Salem, the Board of
Health of the City of Salem and the respondent City Clerk of
the City of Salem.
3. That thereafter a notice of a public hearing to
I
be held before the Planning Board of the City of Salem on
December 19, 1963 was published in the Salem Evening News as
required by Chapter 41, Section T as amended of the General
Laws.
4. That a public hearing on the subdivision plan of
the Petitioner was held by the said planning board on December
li
19, 1963 and at said meeting the planning board, of its own
I.
motion, voted to adjourn the hearing until a further date to
be announced and instructed the Petitioner to furnish additional
I
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t0gographical plans up to three hundred (300). feet off site and
to answer certain objections of the City Engineer.
�i S. That thereafter the Petiti.oaer complied with the
e
j instructions of the said planning board as set forth in
�i paragraph #:'4 above.
�I 6. That at a meeting of the said planning board and the
IliAttorney for the Petitioner in February, 1964 the planning
IIS board informed the petitioner 's attorney that they were going
i
to advertise for a new public hearing on the petitioner 's
application for the approval of its subdivision plan.
it 7. That at said meeting in February, 1964, the petitioner's
I
attorney informed the planning board that as more than sixty (60)
days had elapsed since the filing of its application as set
forth in paragraph #2 above, and the Petitioner not having
! requested the planning board in writing for an extension of
I.
time, and the planning board not having taken final action on
j! the Petitioner 's application for approval of its subidivison
II within sixty (60) days of filing said application, then the
plan as filed was approved by the planning board as a matter
�i of law; that the Petitioner was not waiving its legal rights
I
as to the subdivision plan and would so state at the future �
public hearing to be held which the petitioner 's attorney
agreed to attend on behalf of the Petitioner.
8. That at a public hearing held by the planning board j
on March 18, 1964 the petitioner's attorney was present and
I�
informed the planning board that he was appearing on behalf
itof the Petitioner's without waiver of any of the Petitioner 's
rights.
if
II 9. That on April 3, 1964 the petitioner 's attorney
rccei_ved a letter from the planning board, a copy of which
is attached hereto and marked "C, " stating that the planning
I .
' i III
board had disapproved the petitioner 's subdivision plan.
1, 10. That on April 3rd, the Petitioner made demand
II ..
upon the respondent City Clerk, a cony of which is annexed
hereto and marked "D, " for a certificate that the respondent
gl
City Clerk is required to issue under Chapter J, Section V
II of the General Laws that the planning board had failed to act
on the Petitioner 's subdivision plan within sixty (60) days
after the same had been filed and that more than twenty (20)
days had elapsed since the expiration of the sixty (60) days
I
in which the planning board failed to act without notice of
appeal, but that the respondent City Clerk of the City of Salem
has failed, refused and still refuses to issue to the Petitioner
such certificate.
11. That your Petitioner is aggrieved by said action
of the respondent City Clerk and having no other remedy at law
or in equity petitions the Superior Court as provided in Chapter
249, Section 5 of the General Laws 'of Massachusetts and Chapter
213, Section IA of the General Laws of Massachusetts from said
refusal of the City Clerk to issue said certificate.
WHEREFORE YOUR PETITIOA'ER PRAYS:-
1. That the Court hear all the pertinent evidence
and determine the facts.
2. That a Writ of Mandamus be issued commanding the
I
respondent City Clerk to issue said certificate forthwith.
II By its Attorney,
I rRA�cls B/c/':rrzY
�I
II
y
CWNONWEALTH O: P;iiSSACHUSi-TTS
hSStLX,ss.
SUPERIOR Couar
No. 129739
COUNTRY S1iOR1? CORP.
vS.
AUGUSTINP J. TYODIBY .
FINDINGS and RULINGS
- 1. Petitioner (applicant) was atallmaterial times and still is a corpor-
ation and the owner of land as alleged in the petition, and one Jm�ies
Pantapas (plaintiff) was its treasurer.
2. Defendant was at all material times and still is the City Clerk for
the City of Salem (clerk). -
3. On November 20, 1963, plaintiff (on behalf of applicant) filed with
the Salem Planning Board (board) and with clerk an application for approval
of a definitive plan of property as a subdivision "under the requirc,nencs of
the Subdivision Control Law and the Rules and Regulations Governing the Sub-
division of Landofthe Planning Board in the City of Salem". Said applica-
- tion related to applicant's land on Hilton and Belair Streets off Beilevicw
Avenue. There is no evidence whether or not any list of names and addresses
of abutters of the land in question was attached to the application. There
is no evidence whether or not at that time the board had adopted any Rules
and Regulations or, if so, what they were.
4. Due notice was given by the board of a public hearing on said a�r,"llca-
tion to be held on December 19, 1963.
S. On December 19, 1963, a public hearing was held in the Sclera City
Council Chamber. About 25 or 30 persons were present, including plai.ntiif
anti applicant's attorney (the attorney). Plaintiff presented a redrafted '
plan Containing certain additions. At that hearing, the board pointed out
Certain deficiencies in the proposed plan of subdivision and requested that ..
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several changes in layout, etc. , be made. Plaintiff, through the attorney,
arnreed (on behalf of applicant) that action by the board on said application
DQ postponed to some indefinite time in the future to enable plaintiff to de-
tain and supply adci.tional data requested by the board as set forth above.
Aftez adj ou rnn r_nt of that hearing, the ci:afirman of tho board wrote a letter
to ti,e attorney enclosing a list of the ceficiencies found by the board in
,the plan submitted with said application.
6. On January 30, 1964, a special meeting of the board was held, attended
by several persons, including plaintiff and the attorney. The board then rc-
vi.cwed, "article by article", the list of the board's objections to said plan,
which list had been prepared by the City Engineer following the December 19
meeting. Some of the problems were solved and some were not. A problem o:c
drainage was of particular interest to the board. That meeting adjourned, leav-
ing the application still in abeyance pending further possible solutions to be
proposed by the plaintiff. The attorney thereupon wrote to the board regarding
plaintiff's objections and giving answers to some of the board's claims regard-
ing deficiencies in the plan.
7. This matter was taken up again by the board atits meeting on Febru-
ary 20, 7.964, at which plaintiff and the attorney were present to discuss
further modifications of the plan. It was agreed between plaintiff and the
board that certain corners on the proposed plan be rounded off, that surface
drains be added, and other changes made. The board at that time decided to
advertise a further public hearing to be held on March 19, 1964, the date for
the postponed public hearing held on December 19, 1963.
5. On March 19, 1964, the board met, and it was announced that this meet-
ing would consider further the application, consideration whereof had been sus-
pended at the C^-comber 19 meeting. . The attorney announced that he was attending
the Mceting without prejudice to applicant-s position , that, the board having
fa;lea to either take final action on the application within the statutory
period or within that time to file with the clerk a certificate of such action
on the plan and applicant not having requested in writing an extension of time,
- 2
_ (and I find that applicant did not so request), the application must be
deemed to have been approved by the board under the statute (General Laws
(Ter. Ed. ) c. 41, s. SIU). The matter was then taken under advisement by
the board.
9. The board at its meeting on April 2, 1964 voted to deny approval of
the application for the reasons stated in Exhibit C, appended to the petition,
which is a letter of notice of such action to applicant dated April 3, 1964.
Word of such action was communicated to the city clerk by the board by letter
also dated April 3.
10. On April 6, 1964, the attorney wrote to the clerk a letter (Exhibit 1)
demanding that the clerk furnish a certificate that the board had "failed to
take final action on said subdivision plan and that statutory' approval re-
sulting from such failure has become final".- The clerk ignored said demand,
and on June 9, 1964 this proceeding was brought.
11. I find that the successive delays by the board in taking final action
on the application were solely for the purpose of affording applicant full op-
portunity to meet the objections advanced by the board)inaccordance with ap-
plicant 's requests. -
12. I rule that, on the facts above found and inferences to be drawn
therefrom, defendant was not obliged, under the statute, to comply with ap-
plicant 's said demand; and that for this and other reasons the petition should
be and hereby is dismissed.
Justice o£ the Superior Court
January 111, 1965.
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