14 BERTUCCIO AVENUE - BUILDING JACKET 14 BERSUCCI0 AVENUE
LA W OFFICE OF JAMES E MEARS, JR.
80 Foster Street, Unit 101,Peabody, MA 01960
Phone: (978) 717-5042 Fax: (888)799-7916
Email: jfinears@gmail.com
October 18, 2016
By Hand
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Salem City Clerk v'
City Hall c
95 Washington Street rn S3
Salem, Ma 01970 ?�=
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Re : Nathan Jacobson v. the Salem Planning Board m�
3
Essex Superior Court C.A. No. I J-88
IV
Dear Madam Clerk: N
Enclosed please find:
1) Notice To Salem City Clerk of Plaintiff s Appeal to Essex Superior Court From
September 15, 2016 Form C-Definitive Subdivision Decision of the Salem Planning
Board Concerning 14 Bertuccio Avenue, Salem, Massachusetts (Salem Assessor's Map
24, Lot 105); and
2) Attached copy of the Plaintiff s Complaint Pursuant to M.G.L. Chapter 41, Section 81 BB
Appealing the September 15, 2016 Definitive Subdivision Decision of the Salem
Planning Board Concerning 14 Bertuccio Avenue, Salem, Massachusetts (Salem
Assessor's Map 24, Lot 105), bearing the date-stamp and docket number of the Essex
Superior Court.
Would you or someone from your office kindly date-stamp and file same, and also acknowledge
receipt of the foregoing by date-stamping the enclosed copies of this letter and this Notice.
Thank you for your assistance
Very truly yours,
resF,:Mears, Jr.
m
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
C.ANO. If. - /s003
NATHAN JACOBSON, )
Plaintiff )
BEN J. ANDERSON, MATT VENO, HELEN SIDES, ) n
KIRT RIEDER, CAROLE HAMILTON, DALE YALE, )
BILL GRISET, NOAH KORETZ, and ) M C_�
ANTONIO MATARAGAS,BEING THE ) xF _
MEMBERS OF THE CITY OF SALEM, ) 3> C°
MASSACHUSETTS PLANNING BOARD,
Defendants s
) 3 N
L N
� 0
NOTICE TO SALEM CITY CLERK OF PLAINTIFF'S APPEAL TO ESSEX SUPERIOR
COURT FROM SEPTEMBER 15,2016 FORM C-DEFINITIVE SUBDIVISION DECISION
OF THE SALEM PLANNING BOARD CONCERNING 14 BERTUCCIO AVENUE, SALEM,
MASSACHUSETTS (SALEM ASSESSOR'S MAP 24, LOT 105)
I,James F. Mears, Jr., attorney for the Plaintiff in the above-entitled action, hereby give notice to the
City Clerk of the City of Salem, Massachusettsa and to the Salem Planning Boardthat said Plaintiff has
filed a civil Complaint with the Essex Superior Court appealing the September 16, 2016Form C-
Definitive Subdivision Decision of the Salem Planning Board Concerning 14 Bertuccio Avenue, Salem,
Massachusetts (Salem Assessor's Map 24, Lot 105).
Said September 15, 2016 Salem Planning BoardDecision was filed with the office of the Salem City
Clerk on September 29, 2016.
A copy of said Complaintfiled as Essex Superior Court Civil Action No./6 fiUa on October 18, 2016
bearing the date-stamp of the Essex Superior Court, is attached hereto.
f
. I
The Plaintiff,
Nathan Jacobson,
By his Attorney,
J ES F. MEAR ,JR., BBO 4544274
80 Foster Street, Unit 101
Peabody, MA 01960
Tel: (978) 717-5042
Email: jfinears@gmail.com
V,CIVIC ACTION COVER SHEET 7 DOCKET NUMBER Trial Court of Massachusetts
6 ^ J S id The Superior Court
PLAINTIFF(S): Nathan Jacobson to
COUNTY
ADDRESS: 7 Brown Road
Essex
Swampscott,MA 01907
DEFENDANT(S): Ben J.Anderson,Matt Veno,Helen Sid%,Kin Rieder,Carole Hamllton,
Dale Yale,Bill Grim,Noah Koretz and Antonio Matarsgas,Being the Members of the
ATTORNEY: James F.Mears,Jr.
City of Salem,Massachusetts Planning Board - e�
ADDRESS: e0 Foster street,Unit 101
ADDRESS: City of Salem Planning Board c"y
Peabody.MA 01960
120 Washington Sheet
(978)7175042
BOO 544274 Salem,MA 01970 Nm co
:
r
rn
TYPE OF ACTION AND TRACK DESIGNATION(see reverse side)
CODE NO. TYPE OF ACTION(specify) - D
C99 TRACK HAS A JURY OVY341M BEEN MADE?
Appeal,G.L.c.41,Sec.81 BB F
'If"Other"please describe: Form C-Definitive Subdivision Decision YES O NO
-------------------------
STATEMENT OF DAMAGES PURSUANT TO G.L.c.212,§3A
The following is a full,itemized and detailed statement of the facts on which the undersigned plaintiff or plaintiff counsel relies to determine money damages. For
'this form,disregard double or treble damage claims;indicate single damages only.
TORT CLAIMS
(attach additional sheets as necessary)
A. Documented medical expenses to date: r^
EE!
n
1.Total hospital expenses................................................................................................................................................................................................................................................................................................
.......
A NN
//A
.. . . �2. otal doctor expenses ........ ... ..Oo
4.
.................................................................................I.. ................................... $o aphysical therapy expenses.......3.Total chiropractic expenses....................................................................................................................................... ...� 2I/A5.Total other expenses(describe below ......................................................................................................................... $ PHA
Subtotal $;74A
—
3.Documented lost wages and compensation to date...............................
Documented property damages to dated.................. ....................................................................................................N $ N/A
..................................................................................................................................0 $� N/A
J. Reasonably anticipated future medical and hospital expenses.............................
_. Reasonably anticipated lost wages..............4......... .....................................................................................� $�
.. w).............................................................................................................................. $ N/A
-.Other documented items of damages(describe below)................................................................................................................................
$ ��-
3. Briefly describe plaintiffs injury,including the nature and extent of injury:
TOTAL(A-F):$ N/A
CONTRACT CLAIMS
(attach additional sheets as necessary)
rovide a detailed description of claims(s):
TOTAL:$ NIA
r
ignature of Attorney/Pro Se Plaintiff:X
ELATED ACTIONS: Please provide the case umber, case name and county Of any related actions pen In the Superior Court/2018
CERTIFICATION PURSUANT TO SJC RULE 1:18
lereby certify that I have complied with requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC
Ile 1:18)requiring that I provide my clients with information about court-connected dispute resolution services and discuss with them the
vantages and disadvantages of the various methods spu utio
mature of Attorney of Record: X
Data: 10/18/2018
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STATEMENT OF DAMAGES PURSUANT TO G.L. c. 212, §3A
rUTY OF THE PLAINTIFF-The plaintiff shall set forth,on the face of the civil action cover sheet(or attach additional sheets as necessary), a
tatement specifying the facts on which the plaintiff relies to determine money damages.A copy of such civil action cover sheet, including the
tatement as to the damages,shall be served with the complaint.A clerk-magistrate shall not accept for filing a complaint,except as
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FAILURE TO COMPLETE THIS COVER SHEET THOROUGHLY AND ACCURATELY
MAY RESULT IN DISMISSAL OF THIS ACTION.
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. 2; 2 P SUPERIOR COURT DEPARTMENT
OCT $ P OF THE TRIAL COURT
FILE # C.A NO./6— /s1t
CITY CLEFK, SALEM, MASS.
NATHAN JACOBSON, )
m
Plaintiff
-<
BEN J. ANDERSON, MATT VENO,HELEN SIDES, ) °C)
KIRT RIEDER, CAROLE HAMILTON,
DALE YALE, BILL GRISET, NOAH KORETZ, and
ANTONIO MATARAGAS, BEING THE
MEMBERS OF THE CITY OF SALEM, ) CP {
MASSACHUSETTS PLANNING BOARD, )
Defendants )
COMPLAINT PURSUANT TO M.G.L. CHAPTER 41, SECTION 81BB, APPEALING THE
SEPTEMBER 29,2016 FORM C—DEFINITIVE SUBDIVISION DECISION OF THE SALEM
PLANNING BOARD CONCERNING 14 BERTUCCIO AVENUE, SALEM, MASSACHUSETTS
(SALEM ASSESSOR'S MAP 24, LOT 105)
This is an appeal from a Form C - Definitive Decision (hereinafter"Decision") of the City of
Salem, Massachusetts Planning Board (hereinafter"Salem Planning Board" or"Planning Board"), dated
September 15. 2016, and filed with the Salem, Massachusetts City Clerk on September 29, 2016,
concerning 14 Bertuccio Avenue ( "Property" Assessor's Map 24, Lot 105), Salem, Massachusetts, on
the grounds that said Decision was arbitrary, capricious, unreasonable, violated due process, exceeded
the Planning Board's authority, was based on legally and factually untenable grounds, and was wrong as
a matter of law.
A certified copy of said September 15, 2016 Decision is attached hereto as Exhibit A.
PARTIES
1. The Plaintiff, Nathan Jacobson is an individual residing at 7 Brown Road, Swampscott, Essex
County, Massachusetts.
2. The Defendant, Ben J. Anderson, a/k/a Ben Anderson, who resides at 10 Adams Street, Salem,
Massachusetts 01970, is a regular member and the Chair of the Salem Planning Board who voted
"opposed" in the September 15, 2016 Decision of the Salem Planning Board being appealed.
3. The Defendant, Matt Veno (according to the September 15, 2016 Salem Planning Board
Decision), a/k/a Matthew Veno (according to the updated 8/16/2016 official roster of Salem Planning
Board members), who resides at 29 Forest Avenue #3, Salem, Massachusetts 01970, is a regular
member of the Salem Planning Board who voted "opposed" in the September 15, 2016 Decision of the
Salem Planning Board being appealed.
4. The Defendant, Helen Sides, who resides at 35 Broad Street, Salem, Massachusetts 01970, is a
regular member of the Salem Planning Board who voted "opposed" in the September 15,2016 Decision
of the Salem Planning Board being appealed.
5. The Defendan, Kirt Rieder, who resides at 15 Warren Street, Salem, Massachusetts 01970 is a
regular member of the Salem Planning Board who did not participate in the September 15, 2016 vote
which resulted in the September 15, 2016 Decision of the Salem Planning Board being appealed.
6. The Defendant, Carole Hamilton, who resides at 4 WillowAvenue, salem, Massachusetts 01970
is a regular member of the Salem Planning Board who voted "opposed" in the September 15, 2016
Decision of the Salem Planning Board being appealed.
7. The Defendant, Dale Yale, who resides at 7 Mayflower Lane, Salem, Massachusetts 01970 is a
regular member of the salemn Planning Board who voted "opposed" in the September 15, 2016
Decision of the Salem Planning Board being appealed.
8. The Defendan, Bill Griset who resides at 7 Mayflower Lane, Salem, Massachusetts 01970 ias a
regular member of the salem Planning Board who voted "opposed" in the September 15, 2016 Decision
of the Salem Planning Board being appealed.
9. The Defendant, Noah Koretz, who resides at 10 Woodside Street, Salem, Massachusetts 01970,
is a regular member of the Salem Planning Board who voted "opposed" in the September 15, 2016
Decision of the Salem Planning Board being appealed.
10. The Defendant, Antonio Mataragas, who resides at 19 Pickman Road, Salem, Massachusetts
01970, is a regular member of the Salem Planning Board who did not participate in the September 15,
2016 vote which resulted in the September 15, 2016 decision of the Salem Planning Board being
appealed.
11. The Plaintiff, Nathan Jacobson has standing to bring this action as he is contractually entitled to
purchase the Property and stands as an assignee of the owner of record of the Property. A true copy of
the Purchase and Sale Agreement is attached hereto as Exhibit B. The Plaintiff is substantially
aggrieved by the September 15. 2016 Decision of the Salem Planning Board being appealed.
JURISDICTION
12. This Court has jurisdiction of this matter pursuant to Section 81 BB of Chapter 41 of the
Massachusetts General Laws.
13. This case is timely, as it has been filed within twenty(20) days from September 29, 2016, which
is when the September 15, 2016 Decision of the Salem Planning Board was filed with the Salem City
Clerk.
PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS
14. On March 17 , 2016, the Plaintiff, Nathan Jacobson filed the "Form C" Application for
Approval of Definitive Plan located at 14 Bertuccio Avenue with the Salem Planning Board, which
ultimately resulted in the September 15, 2016 Form C—Definitive Subdivision Decision of the Salem
Planning Board being appealed.
15. In accordance with the City of Salem Rules and Regulations Governing the Subdivision of Land
("the Code") and in conjunction with the Plaintiffs request for approval of a Definitive Subdivision
Plan located at 14 Bertuccio Avenue, four(4) waivers from Section IV, Design Standards, of the Code
were requested.
16. The Plaintiff requested a waiver of Section IV,A, 1,f: Minimum roadway centerline radius
shall be 230', to allow a centerline radius of 126' and 134', respectively. The Plaintiff's engineer
submitted that having a roadway centerline radius which is less than 230' assists in making the roadway
a little longer, which allowed the grading to fit more closely to the existing grade. Having this reduced
centerline radius also has the benefit of slowing traffic, making the roadway safer, as submitted by the
Planning Board's engineer. In order to maintain site distance, the Plaintiff's engineer proposed moving
the trees proposed for the inside of the curve to the back of the sidewalk, which fit the Plaintiff s
proposal. Due to the topography of the land, a curved roadway is required, which both the Plaintiffs
engineer and the Planning Board's engineer opined was the safest and most reasonable layout of the
road.
17. The Plaintiff requested a waiver of Section IV,A, 2, a: Minimum Sidewalk width shall be 5'.
The Plaintiffs proposed sidewalk is 5' wide with cutouts to 4' wide where trees are located. The
Plaintiff s Engineer submitted that the Plaintiffs proposal would allow for ADA compliant trees and
sidewalks. The Traffic Peer Reviewer stated that moving trees to the rear of the property was a good
solution to satisfy the Board's request for trees, while addressing the 125' sight distance concern. The
Plaintiff was amenable to widening the right of way and providing both a 4' wide planting strip and 5'
sidewalk, if the Planning Board's approval required such a modification.
18. The Plaintiff requested a waiver of Section IV,A, 2, a: A street width of thirty-nine (39) feet is
present at the roadway entrance, where the existing street width of forty (40) feet is required. The
Property as it exists, has a property line along the adjacent residential lot which was designed to
accommodate a roadway rounding. When the rounding was created, there was 39' between the
narrowest point on the rounding and the opposite property line. The Plaintiff requested a waiver of F
on a small portion of the roadway. A reduction in 1' does not impact the safety and maneuverability of
the roadway in that location. The width of the roadway proposed would be almost 41', where the Code
requires 40'. There is no other reasonable point of access to the Property as access through Francis
Road presents grade and topography issues.
19. The Plaintiff requested a waiver of Section IV.A.4.a.: Allow a dead end street 950 feet long, as
measured from the Bertuccio Avenue and Francis Road intersection to the end of the cul-de-sac, which
is longer than the 500 foot maximum. The City of Salem Fire Department in their March 28, 2016 to
the Planning Board, has concurred with the Plaintiff's proposal permitting the 950' length, provided the
units contain residential sprinklers, which was acceptable to the Plaintiff.
20. The Plaintiff requested a Section IV.Right-of-Way Improvement Policy: Allow the first 60'
of roadway to not have trees as required. This section of roadway is at an intersection. Therefore, the
absence of trees will avoid sight distance problems. The Traffic Peer Reviewer stated that moving trees
to the rear of the property was a good solution to satisfy the Board's request for trees, while addressing
the 125' sight distance concern. The Plaintiff proposed planting additional trees so that the total number
of street trees in the subdivision would remain the same as required when planted at 30' on center.
21. On or about March 21, 2016 the City of Salem Building Commissioner concurred with the
Plaintiff's proposal for subdivision of the Property.
22. On or about March 29, 2016, the City of Salem Police Department concurred with the Plaintiffs
proposal for subdivision of the Property.
23. The City of Salem Board of Health provided fifteen (15) conditions for approval of the
Plaintiff s proposal, all of which were acceptable and achievable by the Plaintiff.
24. The Planning Board expressed concern regarding soil testing and the presence of arsenic. The
Plaintiff had four(4) soils tests executed. No reportable arsenic was found at the site. The Peer Review
Engineered concurred.
25. The Planning Board expressed concern about the stability of existing cliff ledge at the Property
during proposed blasting. The Plaintiff presented five (5) experts in the form of two blasters and three
engineers, who spoke of the stability of the cliff ledge during the proposed blasting. The experts
unrebutted opinions were found by the Planning Board to either be uncompelling or not credible.
ARGUMENT
26. The Plaintiff reaffirms, reaalleges and incorporates by reference the allegations contained in
paragraphs 1 through 25.
27. The Plaintiff and its team of licensed engineers, blasters, geologists and architects have proven
that they are willing and able to construct a safe, habitable and beneficial addition to the existing
neighborhood, that is well within the Subdivision Control Law.
28. The Plaintiff's proposal has been approved by the City of Salem Board of Health and is well
within the Subdivision Control Law.
29. The Plaintiff's proposal is ADA compliant, as will be any public amenities therein.
30. The Right of Way waiver at the entrance of the roadway is minimal at 1', affecting only a
planting strip or sidewalk and not the roadway itself. The Plaintiff is amenable to accommodating the
Planning Board's concern regarding a wider planting strip and sidewalk. The Peer Review Traffic
Assessor raised no issue with the Right of Way. The Fire Department felt that the curve at the
entranceway was acceptable.
31. The Dead-End Road length waiver is necessary as it is the only reasonable access to the
Property. Placing the road elsewhere, thereby eliminating the waiver, would require much more
extensive blasting, resulting in an unnecessary disruption to the community. Again, the Fire Department
took no issue with the dead-end road length.
32. The Sight Distance Radius Waiver is also necessary and agreed with by the Peer Review Traffic
Assessment, as the curves in the road mitigate the grade of the road, controlling speed and increasing
safety.
33. The Plaintiffs proposed subdivision meets all other City codes, as well as all other City, State
and Federal regulations. The Property does not sit on nor abut any conservation land, protected
wetlands or Heritage sites. The Property does not contain any protected wildlife, endangered species or
protected habitat. Additionally, the Property has never been included in any City plans for"open
space". The Property does not contain any public land.
34. Adhering to the letter of the law does not serve the Property owner, who should be allowed use
of the property so long as it can be demonstrated that development can be performed safely, which the
Plaintiff has demonstrated.
35. Allowing the Plaintiff's proposal to proceed will provide additional catch basins to address
concerns regarding existing flooding and insufficient drainage. These catch basins would be completely
separate from the drainage requirements of the proposed subdivision.
36. Allowing an extension of the existing dead-end on Bertuccio Avenue and a cul-de-sac will allow
a safer, turn around for the existing problem of traffic approaching the existing dead-end, mistakenly
believing there is access to Bertram Field for football games. The extension with the cul-de-sac would
eliminate the necessity of those cars having to do a"K"tum or a"3 point tum" in order to tum around.
37. The Plaintiff contends that the creation of a community on the Property will, by default, be a
benefit to the community because the Property in its currenty condition, serves no benefit to anyone; if
anything, it is a detriment. The Property as currently photodocumented, is littered with liquor bottles,
cigarette butts, garbage, syringes, dirty mattresses and sex devices. Logic would seem to dictate that the
entire area would be safer for the community's current and future children, if the property consisted of a
wel Wit street,populated by concerned, aware homeowners who care about their community.
38. The Property as it currently exists is technically not accessible by the public. Development of
the Property would provide neighbors with access to the Property to enjoy the view, both safely and
legally.
39. The Plaintiff proposed construction of a community path on the Property to the abutting school
grounds or an existing park. .Again, the current neighborhood children, as well the children of new
homeowners of the proposed homes would then have a safe means of access to either of those sites.
40. The Plaintiff's proposal would address the existing problem of snow mitigation, which is a
current problem for the neighbors. The proposed subdivision would include an area off the cul-de-sac
for snow stockpiling, which would slowly be caught in the drainage systems, thus helping to mitigate
the existing issue.
41. The Planning Board's response to the Plaintiff's waiver requests is inconsistent with other
similiarly situated subdivisions in the City of Salem.
42. For the foregoing reasons alone, the Decision of the Salem Planning Board in denying the Form
C endorsement is unfair and without justification and in excess of the Planning Board's authority.
WHEREFORE, the Plaintiff prays that this Court grant judgment as follows:
(a) Enter a Judgment in his favor annulling in full the September 15, 2016 Decision of the
Salem Planning Board;
(b) Award the Plaintiff costs and reasonable attorney's fees in connection with his
prosecution of this Appeal; and
(c) Grant such other relief as this Court deems equitable and just.
The Plaintiff,
Nathan Jacobson,
By his Attorney,
AMES . MEAR , JR., BBO 4544274
80 Foster Street, Unit 101
Peabody, MA 01960
Tel: (978) 717-5042
Email: jfinears@gmail.com
CITY OF SALEM
PLANNING BOARD
AIL SEP 391 P 2 US
Form C—Definitive Subdivision DecisionFILE {{�
CITY CLERK; S�IiEM.MASS.
14 Bertuccio Avenue (Map 24,Lot 105)
September 15,2016
Nathan Jacobson
C/o Benjamin Osgood _
13 Branch Street,Suite 111
Methuen, MA 01844
RE: Decision of the 14 Bertuccio Avenue Definitive Subdivision—Form C
On April 7, 2016, the Salem Planning Board opened a public hearing for a proposal submitted by
Nathan Jacobson (hereafter referred to as "applicant") to allow the construction of a roadway and
associated utilities to serve seven (7) residential lots, and a Stormwater Management Permit in
accordance Sec. 37 of the Salem Code of Ordinances to allow for activity that results in a land
disturbance greater than one acre of land within the City of Salem. In the course of review, the plans
evolved such that the subdivision was reduced to six (6) residential lots. The public hearing was
continued on April 7, 2016; April 21, 2016;May 5, 2016; May 19, 2016;June 2, 2016;June 16, 2016;
July 7, 2016;July 21, 2016;September 1,2016.
At the September 1, 2016 meeting, the applicant requested a continuation and an extension to allow
the Board to take final action after the 135 day time period.
At the regularly scheduled Planning Board meeting on September 15, 2016, the Planning Board
closed the public hearing and voted on the petition at the request of the petitioner.
The rules and regulations governing the Subdivision of Land in Salem, Massachusetts were enacted
for the purpose of protecting the safety, convenience and welfare of the inhabitants of the city and
were put into effect to regulate the layout and construction of ways in subdivisions providing access
to the several lots therein, but which have not become public ways, and ensuring sanitary conditions
in subdivisions and in proper cases parks and open areas.
The Salem Planning Board, after careful consideration of the evidence presented at the public
hearing, and after thorough review of the petitions, including the application narrative and plans,
and the Petitioner's presentation and public testimony,makes the following findings:
1. The definitive subdivision plans do not conform to Salem's Subdivision Regulations as
waivers of the subdivision plans were requested.
2. The Salem Planning Board did not receive sufficient information to ensure safe construction
of all ways and infrastructure.
14 Benuccio Avenue Form C Subdivision
September 15,2016-2
3. While the applicant provided information on the industry standards and general procedures
of blasting, the Planning Board found that the applicant did not provide specific information
requested on the unique geological features of the site. Subsoil investigations were not
performed to verify the underlying soil stratums (Environmental and Community Impact
Statement dated March, 2016). The Board requested additional site specific environmental
and geological information and a geotechnical peer review. The Board found that subsoil
investigations of the unique geological features of the site were necessary to determine
whether the proposed blasting of the ledge could be done without the detriment to public
safety and welfare.
The petitioner also requested the following waivers:
i. A waiver request from Section rV.A.l.f to allow the centerline radius of 126 feet and
134 feet respectively,which is less than the 230 feet required.
ii. A waiver request from Section IV.A.4.a to allow a dead end street 950 feet long, as
measured from the Bertuccio Avenue and Francis Road intersection to the end of
the cul-de-sac,which is longer than the 500 foot maximum.
iii. A waiver request from Section IV. Right-of-Way Improvements Policy to allow:
a. A plan without street trees at the entrance into the subdivision for the first
60' feet, where 3'/2 in. caliper trees are required 30 ft. on center.
iv. A waiver request from Section IV.A.2.a to allow:
a. A sidewalk width of four (4) feet wide rather than the required five (5) foot
width where there are proposed cutouts for tree locations.
b. A street width of thirty-nine (39) feet at the entrance, where the existing
street width of forty (40) feet is required.
Chapter 41, Section 81R provides that the Planning Board may in any particular case, where such
.action is in the public interest and not inconsistent with the intent and purpose of the subdivision
control law,waive strict compliance with its rules and regulations. The Board found that,the petition
did not demonstrate that the approval of the requested waivers serve a better public interest than the
Subdivision Control requirements. Specifically, the petitioner requested a street that is narrower than
required, a dead-end road almost twice the maximum length, the elimination of street trees at the
entrance into the subdivision and a sidewalk width that does not comply with ADA standards. While
the petition proposed to provide benches and a seating area in the subdivision, the Board finds that
this public benefit is not directly related to the impacts of the waivers requested.
The Planning Board voted none (0) to approve and seven (7) (Ben Anderson (Chau), Matt Veno,
Bill Griset, Noah Koretz, Helen Sides, Dale Yale,Carole Hamilton) opposed, to approve the request
for an endorsement of a Form C Subdivision Plan and Stonnwater Management Special Permit.
The Form C Definitive Subdivision and Stormwater Management Special Permit are denied.
'14 Bertuccio Avenue Form C Subdivision
September 15,2016-3
This endorsement shall not take effect until a copy of the decision bearing certification of the City
Clerk that twenty (20) days have elapsed and no appeal has been filed or that is such appeal has been
file, and it has been dismissed or denied, is recording in the Essex South Registry of Deeds and is
indexed under the name of the owner of record or is recorded 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 are on file with the City Clerk and a copy is on
file with the Planning Board.
Sincerely,
Ben J.Anderson, Chau
Salem Planning Board
r
A RUE COPY T ST
Y CLERK
SALEM MASS.
This 19o'day of
nn +ocn �amf
i. PARTIES d .
Tilaxms ill Jfe�lsrrxso Arenne Nnndure Tirw,.drYf [d A'ovanbrr 13,
1991, rteorded ai ikp haler S"M VJ*id Registry of Deeds in Book 1161-4, Page 217,hoWnaf a called the
SELLER,agsto to SELL mut
A'mhan Jpr,Absot,or Us.sah?et of 7 Xh wan Aur{,As�,AfarsarAtrsrAs
hertmailet called the BUYER or PURCIaASBR,agrees to BUY upon the tams bereioafta set firth,the following
described premises;
2. DESCRIPTION The land described as raw had located at 0 Dertuedo Avenue,Salem,Massachusd(s and more fully described
in Eues Canals Registry of Deeds,Book 18182,Page 147.
3. TITLE DEED Said premises are 10 be convoyed by a good sad sufficient QUITCLAIM deed running to the BUYER, or to the
nominee designated by the BUYER by written notice to the SELLER at least seven days before the deed is to be
delivered as herein provided, and said deed shall convey a good and clear record and marketable title iher:to.free
from caamrbrtuams,except
{a) Ptovisinnc tf existing building and saaag_laws:„
(c) Such taxes for the ihm current haul year as are not due and payable on the date of the dclivep•of such deed;
(d) Any licos for municipal bclem cats assessed after the date of this agroancnt;
(c) Any Casement,restriction or agrert "I of TWOW presently in force and applicable which do not interfere with
•(D
the reasonable use of the premises.
4. PLAITS Ifsaid deed cafes to a plan necessaryto be recorded therewith,the SELLFR shall deliver such plan with the deed in
fort adequate for recording or registration.
S. RL-GISTERF1l77'11,E In addition to the foregoing•if the title to said premises is registered,said deed shall be in form sutftciert to entitle
the BUYER to a Certificate of 9 nk of said premises,and the SELLER shall deliver with said deal all irabttmrnL%if
any,necessary to enable the BUYER to obtain Certificate of Title.
6. PURCHASE PRICE The agreed Purchase prim for said premises is Three ltxnabrd Mousnnd and 01V100(S300,M80) Dollars of
which
have been paid 833 a�d�epyelt wig)b�e ct tion of the Purchase and Sales Agreement
are to be paid at the time of delivery of the deed in cash,twPk,or certified cbc&s or closing
CIT attomey's clients fund account or bust check(s).
r q r�t1110 TOTAL. -
TIME FOR Such deed is to be d0vrred on or beforo Aprl 1,2016 at 12:00 o'clock P.M.at the Essex Soots Registry of Deeds.
PERFORMANCE or.fouruen days after BUYER has obtaloW all permits and approvals necessary ter a subdls•tslon of the
DELIVERY OF DEED property acceptable to the BUYER. BUY7'sR rosy have one extension of the time for performance for a period
of ninety(90)days.
8. POSSESSION and FLIT possession of said property is to be delivered at the time of the delivery of the deed said premises to be then(a)
CONDITION of in the same condition as they now aro and (b) to compldaace with said building and 'zoning laws, and (c) in
PREMISES compliance with the Provisions of any instrument referred to in clause 4 hereof, The BUYER may elect to review
ProPeh•within 48 hours prior to transfer with reasonable notice to SELLER
4. EXTENSION TO If the SELLER shall be unable to give title or to make convcyaocr, or to deliver possession of the pmniscs,all as
PERFECT TITLE OR herein stipulated,or If at the time of the dcliswy of the deed the premises do not conform with the provisions hereof,
MAJCE PREMISES the SELLER shall use reasonable efforts to remove any defects in title,or to deliver possp�ion as provided hatim or
CONFORM to melee the said premises cunfomt to the provisions hereof,as the case may
.. - , ami theempen the time for
performance hereof shall be eatended for a period of thirty(30)dais or such lesser time that BUYER can obtain an
esteasbn of any mortgage commitment without addidoual case to BAYER
10. FAJLL'RL'TO If of the expiration of the extended time, the SELLER dull havv failed so to remove any de&cos in title, deliver
PERFECT TITLE,OR pos,essian,or make the premises catform,as the case may br,all as herein agreed,or il'at any lime durutg the period
MAKE PREMISES of this agreetnmt or any cxtcusion thereof, the holder of a mongage on said pnnsisrs shall refuse to permit the
CONFORM,ctc. im-urnnee Proceeds, if any, to be used for such purposes, then, at the BUYF;R'S opdout arty payments node under
this agreement shall be fonhwith refunded and all other obligarinns of all parries hcroo'shall cease and this
agreement shall be void without recourse to the parties hereto.
t 1. BUYER'S ELECTION The BUYER shah have the elation,at either the original or any extended titan for pe formance,to actt7p such title
TO ACCEPTTrfa as the SELLER rm deliver to the said premises in their then condition and /o pay tbcrcforo the purchase prier
without deduction,in which case the SELLER shall Canvey such title,except that in the evemi of such c"tvcyancc in
accord with the pmvrslonts of this cbwtsc,.if the said premises shall have been d"ed'by fire OF mentally insured
1911163, then.the SELLER Mall,unless the SELLER has previousiv restored the premises to their forma Cc tion,
then at Buyer's option:
(a) pay over err assfga to the BUYER,on delivery of the dad,all amounts recovered or recoverable on account
Of such insurance las airy amounts reasonably upended by the SELLER.for shy partial restoration,or
(b) if a holder of a tnatlgagc on said premises shall not Permit the insurar mce proceeds or a part thcreefto be used
to restore the said prcrnises to their former condition of to be so paid over or assigr,4 give to the BUYER a
tm;dit against the purchase price,on delivery of the decd,equal,to.seid amounts so recovered or recoverable
by the bolder of said mortgage less arty amounts ceperafed by the SELLER fnr,any parilal rcpGvation.,,: .
12.. ACLEPTANCE OF no acceptance of a deed by the BUYER or his nominee.as the ctse may be,shell be a fbD performance in discharge
DEED and rilesse of every agreancel andobligation bere'on contained or repressed,o7noept such as ate,by th terms tietoof,
to be performed ager the delivery of said deed.
13. USE OF PURC)IASE To enable the SELLER to retake coaverysaxe as herein provided,the SELLER may,at the time of delivery of the deed,
MONEY TO CLEAR use the purchase money or any portion,thereof to clear the title of any or all encumbrances or lataest�provide.that
TPIT,F a6 instrMents so procured are recorded as soon thereafter.as reasonably possible in accordance with cuvtonomy
convCyanc)ngpravticcs,
14. INSURANCE Until the delivery of the dead,the SELLER.shall maintain insurance on said.Premises as follows;
])PC of 1Mwwnre amount ofCovernge .
(a) Fire and Extended Coverage +S
(b)
15. -ADJUSTMENTS Wain and sew"use ebarges,and taxes for the current year, shall be appottiou d shell be adjusted,as of the day of
Performance of this agretment and the net amouat tbacef shall be added to or deducted from,as the case maybe,the
Purchase price payable by the BUYER of the time of delivery of the deed.Uncollected rents for the caureru rental
pa W Sheri)be apportioned if and when Collected by either party.
16. ADJUSTAf1=•NI'OF If the amount of said taxes isnot lma)wa at the time of the delivery of the deed,they shall be apporiiornnl on the basis
UNASSESSED AND of the taxes assessed for the.prceallag year,with a reapportionment as soon as the rave tax rate and valuation can Ec
ABATED TAXES ascertained; amt, if the taxa Nihlch me to be apportioned shat)thereafter be reduced by abatement,the amoent of
such abatement, less the rcesbnable cost of obtaining same, shall be apPOItio ned between the pmtieq provided th ii
neilb"party shall be obligated to institute or prosecute proceedings for an abatement unless herein othcnvisc agreed.
17. BROKER(S)Fel; A Broker's fee for professional services is due from the SELLER to Armstrong Field Rea)Estate. Said feu:
shall not be paid until the full purchase price is paid and the deed recorded.
19. BROKERS) Ibe Brokers)named herein,Armstrong Field Real Estate warrant that the Brokeis duly licensed as such
WARRANTY by the Commonweallb of Massach»setts.
19. Demur All deposits made hereunder shall be held, in escrow by:trnimong Field Rcal,FsU]c as agent 1•or the SELLER,
ms
subject to the terof this agreement, and shag be duly accounted for at the thine for performance of ebb
agreement In the event of any disagreement between the parties the said agent may retain said deposits pending
instructions in ATiting mutually given by the SELLER and the BUYER.
20. BUYER'S DFJ:AULT; If the BUYER shall fail to fulfill the BUYER'S agreements herein,all deposits made bcrcunda by the BUYER shall
DAMAGES be retained by the SELLER as liquidated damages Q9 this
.. ,B'WPR in 44T498; being difficult to
. ascertain actual damat9 i, the parties hereto agree that the deposit shalt he liquidaled damages and tbh shalt he&Ile'.
.. %We_hZal and equitable remedy,
21YINANCING TNFEN'170NALLY DELETED.
21. NOTICE If BUYER k %cddng Veterans Administration loan benefits or a U.S. Govemnmrnt Fc"I Housing Adminisnation
insured lonrt appropriate language,as applicable,must be included in the Purchase and Sale Agrcenent.
22. 1..IABILI Y OF If the SELI•E:R or BUYER executes this agreement in a representative or fiduciary capacity,only the principal or the
TRUSTEES. carate rcpr.e' ted shall be bound. and nehher the SEU_ER or BUYER so
executing, nor any sharetwider or
S11ARF1iOLDERS. hcOeBcimy of any must shall be pmunalN liable f"any Obligation,cxprm or inaptied,hernder.
BENEFICIARY,etc eu
21. CONSTRUCTION OF This invnimcnt is to be consnurd as a Mwwxhuvm eonpncr, is to take effort as a scaled instiviuent,ems fail the
AGREEMENT entre contact between the partics is binding upon and ensues to the benefit of the partes hereto and.their
retpere've Lelia, ddb. eaem"M adminivealurN aucccS%n and assigns, and may be caneelc4 modified or
amended Only by a written Yutrmmat&Vecul d by both the SFr i Ln and the BUYER. Iftw0 or nano persons are
named.Web as BIJYERlbea 04941Mhereundershall 1x joint and several. The Caption;and marginal notes arc
used only as matter of eoavanience and are not to be considered.a part ofthis agreement or to he umd in docTuAning
the intent of tine parties to.it This is a legailybinding contract If not undert,,ood,sta competent advice,
24. LEAD PAINT LAW IMIT 1TIONALLY DELETED
ACKNOWLEDGE
MEMS
25. SMOKE DETECTORS INTENTIONALLY DEi.E'IIiD.
26. BUYER'S HOME IMJEi I10NALLY OEL 1L'D
iNSPECITON
ACKNOWLEDGE-
MENT
27. WARM-TrIES AND The BUYER acknowledges dim be has not relied upon any warranties of representation not incrxporaled in Nc
REPRESLNfAT10N Agreement a"Pt for the following additional Warranties mid rep tsentaliorm if any,made by either the SEIL:ER or
ACKNOWLEDGF, the Broker.
MENT NONE
(If time,ewe 40064?.if . ,indictitc
�'lived, by wkonr'the warranty or rcprrserntah'on wusmadr—)
28. ADDDMONAL See Rider A attached hereto and made a pan bereof.
PROVISIONS
I have received a copy of the Purchase and Sale Agreement. This is o legally binding contract if not
understood,seek compr(ent sdvkt.
The BUYER(s)acknowledges receipt of the notice rcgpirtd by regulation 2S! of the code of IMlassacbuscttt
Retain
a*"Section I. (15)regarding the relationship of the BROKER(%)with BUYER(s)and SF,LLER(s)of
1 �6Ycr Dili Sega `'ivTlale
I�NATIIAN JACOBSEN Anne 1. Sdvo, Trustee of 14 Bertuccio Avenue.
Nominee Trust
9
Balder ¢ d R^a S Date
h Trustee of 14 Bertuceio Avenue
Nominee Trust
RIDER. "A" OF PURCHASE AND SALE AGREEMENT
C.hrt f�rtn4 �ynrSr
SELLER: Anne L Salvo an
Nominee Trust ,Trustees of 14 Bertuccto Avenue
>3UYEA: Nathan Jacobsen
PRtMISES: O neriuccio Avennc Salem,MA 019111
DATED: Ociober:19,2013
29, BROKER: Buyer and Sellers,their agents and employees,warrant that they have not dealt
with a broker or agent;other than the broker named in the Agreement sharked heretp,in connection
with this transaction,and each party agrees to indemnify and hold harmless each other from and
against any and all damages,claims,losses and liabilities arising out of or in connection with any
claims made by any broker or agent claiming a right to a commission or fee in connection with the sale
contemplated by this Agreement resulting from the breaching party's violation of such warranty. This
indemnification shall include,without implied limitation,the non-breaching party's reasonable
attorney's fees and expenses, This shall survive the closing.
30. LEGAL COUNSEL- The parties hereby affirm and acknowledge that they have been offered
the opportunity to seek legal counsel prior to the execution of the Agreement,and that they have either
done so or hereby waive the privilege,
31. NOTIC Any and all notices required pursuant to the,Purchase and Sale Agreement and/or
Pider(s)thereto shall be forwarded postage prepaid by: (1)certified mail,return receipt requested; or
(2)in-hand delivery:
FOR BUYER : FOR SELLER.
James F.Mears,Jr. AnneI Salvo an nt, Trustees
80,Footer Street,Unit jol 14 Bertuccio Avenue
Peabody,MA 01%0 Salem,MA 01970
Phone: (978) 717-5042
Fax; (888) 799-7916
Email: finears;klemail.cum
32. ACCESS: Buyer and his representatives shall have the right to enter the Premises during
normal business hours to perform physical and environmental tests and inspections necessary and
incidental to Buyer's contemplated use of the Premises. Buyer does hereby indemnify and hold Seller
harmless from any and all claims,suits, loss or damages which may arise because of such entry except
insofar as such claims arise from Seller's negligence or willful misconduct. The provisions of the
immediately preceding sentence shall survive the expiration or other termination of this Agreement.
33. DUE DILIGENCE DOCU]yIEN`I'3; Seller represents that it has provided to the Buyer the
following documents,to the extant saki documents exist:(i)notices of any violations of law; (vi)any
reports on environmental conditions;and(iii)any permits or reports from the City of Salem.
34. TULE: Without limtalioo,the prcmises.shall not be considered to be.in compliance with the
provisions of this Agreement with respect to title unless;
(i) All all means of access to the Premises shall be wholly within the lot lines of the
premises and shall not encroach upon or under any property not within such.lot:lines.
(i i) Said Premises abut a public way,duly laid out or accepted as such by the town in
which said premises are located
35. REBA: Any matter or practice arising under or relating to this Agreement which is the subject
of a title standard or a practice Standard of the Real F,state par Association of Massachusetts at the time
for delivery of the deed shall be governed by said.title standard or practice standard to the extent
applicable.
36. TITLE.INSURANCE: Without limitation of any other provisions of this Agreement, said
premises shall not be considered to be in compliance with the provisions of this Agreement with
respect to title unless title to said premises is insurab.le,for the benefit of the BUYF,R,in a fee owner's
policy of title insurance, at normal premium rates,in the American Land Title Association form
currently in use;subject only to those Jprinted exceptions to title normally included in the "jacket"to
such form or policy,and those matters referred to in paragraph 4 of this Agreement.
37. SELLER DELIYERIES:
At the Closing,Seller shall deliver to Buydr the following duly executed(and
notarized)documents or instruments:
(a) Deed to the Premises in accordance with the provisions of Section 4 of this
Agreement
(b) An affidavit in the form customarily required by Buyer's title insurer for
the purposes of deleting from the owner's and lender's tide policies the standard
exceptions for parties in possession and mechanics'liens.
(c) An affidavit establishing that Seller is not a foreign person as defined in I.R.S. Code
Section 1445 (and the regulations promulgated thereunder) in the form
recommended by the Internal Revenue Service for the purpose of establishing
that the withholding requirements of said Section 1445 do not apply to this
transaction.
(d) Any customary forms required to comply with Internal Revenue Service reporting
requirements,provided that the same shall not include any indemnities or warranties
(e) All.instruments evidencing Seller's tote organvation,legal existence and
authority to enter into and be bound by the dosing docemenes and convey tide such.
that Buyer has become the;record owner of title to the Premises.
(f) Any odller customary dosing documents seasonably required by Buyer's
mortgage.lenderor ha.cou WA provided that such documents shall not include
any warranties nr indemnities or obligations surviving the Closing by Seller.
3& SELLER'S 11tORTgAQ;EE: Within two(2),weeks of the date of execution of the
Purchase and Sale Agreement by the Seller,Seller shall obtain a letter from the Seller's
mortgagee,tho content of,which shall contain a.reprosentaton that the Seller's
mortgagee does not intend on foreclosing on.the subject.mortgage,
39. CONFLICT: In the eventtbat.any provisions ofthis Rider A conflict with.the attached Purchase
and Sale Agreement, the provisions of this Rider A shall control.
Buyer Date:�! Stllcr r�f..4t✓LII-.k' V ii Darn
Nathan Jac Anne L SAvo,Trusteed 14liermcdo Avense Nominee Timi
j
Df2e
$S.
�jifanir Trustee of 14 Berlw4o Avenw Nominee Trutt
• Gk rrTr7 itk��x+q;)'
Y
�, lu41
Citp of i§al m, 0.aoacbm5ettg
i` Vublic 3propertp Mepartment
Wuffbing Mepartment
One 6alem oreen
(978) 745-9595 (Ext. 380
Leo E. Tremblay
Director of Public Property
Inspector of Building
Zoning Enforcement Officer
APRIL 3 , 1998
14 BERTUCCIO AVE NOMINEE TRUST
C/O J .E . SALVA TRS .
14 BERTUCCIO AVENUE
SALEM, MA 01970
RE : 14 BERTUCCIO AVENUE
DEAR MR . SALVA:
THIS OFFICE HAS RECEIVED COMPLAINT OF ILLEGAL STORAGE OF
COMMERCIAL VECHICALS IN AN R-1 RESIDENTIAL DISTRICT.
THE CITY OF SALEM ZONING ORDINANCE ARTICLE V. USE
REGULATIONS SECTIONS (C) STATES . THE TERM "USE OF LAND"
SHALL INCLUDE THE INTERPRETATION WHICH SHALL INCLUDE THE
RESTRICTION THAT THE LAND CANNOT BE USED FOR THE STORAGE
OR OVERNIGHT PARKING OF MOTOR VECHICLES , INCLUDING TRUCKS ,
TRACTORS , TRAILERS EXCEPT AS EXEMPTED BY SECTION 7-1 ,
UNLESS THE "PERMITTED USE" FOR BUILDINGS IN THE DISTRICT
ALLOWS SUCH PARKING OR THE STORAGE OF COMMERCIAL MOTOR
VEHICLES .
PLEASE CONTACT THIS OFFICE UPON RECEIPT OF THIS LETTER TO
INFORM US OF YOUR COURSE OF ACTION IN THIS MATTER. FAILURE
TO DO SO WILL RESULT IN LEGAL ACTION BEING TAKEN AGAINST
YOU IN SALEM DISTRICT COURT.
THANK YOU IN ADVANCE FOR YOUR ANTICIPATED COOPERATION IN
THIS MATTER.
SINCER Y,
LEO E . TREMBLAY
ZONING ENFORCEMEN OFFICER
CC: WARD III COUNCILOR, JOAN LOVELY