SALEM HISTORICAL COMMISSION
MINUTES
FEBRUARY 28, 2012
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A special meeting of the Salem Historical Commission was held on Wednesday, February 28, 2012 at 6:30 pm at 120 Washington Street, Salem, MA. Present were Ms. Herbert, Ms. Bellin, Ms. Harper, Ms. Keenan, Ms. McCrea and Mr. Hart.
The purpose of the meeting was to review the Final Memorandum of Agreement for the St. Joseph’s Parish Complex Redevelopment under Section 106 Review and to vote on whether to authorize the Chair of the Commission to sign on behalf of the Commission.
Ms. Herbert stated that POUA agreed to an increase from $3,000 to $5000 for a historic narrative for either the City of Salem, the Salem Historical Commission or even Historic Salem, Inc. (HSI) to develop. She stated that the Commission could be the lucky recipients of three stained glass windows and a church pew, if so desired. She noted that they did insert the marketing outline suggested by HSI. She stated that she went through the whole MOA and had the idea that in terms of dispute resolution that the Commission would be included and that gave her the feeling that maybe the Commission should sign the MOA. She stated that, however, after she read further that it is only the signatories, which are the principles, and the invited signatories. She stated that the Commission is only a concurring
party, along with the City of Salem and HSI, and is not invited to be part of that, which is one thing that is a huge problem. She stated that the other is that there will be no preservation restrictions on either of the remaining buildings, which their preservation was the major mitigating factor which would make demolition of the church somewhat palatable. She stated that she sent the following email to Paul Silverstone:
“I want to let you know that I go into the Special Meeting of the Salem Historical Commission that I have called tonight, in particular to accommodate the expedited schedule for the MOA, with many concerns and reservations.~~ As you know, I have worked very hard over the past six months to participate in the development of a meaningful and appropriate MOA for the St. Joseph's Project that will allow the SHC to sign on as a "partner" to this project.~ However, with the "final" MOA that has just been delivered, we have received an apparent watered-down, ineffectual document that offers no true mitigation for the demolition of the Church and Convent buildings.~ In fact, this MOA defies the inherent purpose of the Section #106 Process, as it relies on the excuse that the commercial
funding agency (Bank of America) has refused to allow Preservation Restrictions to be placed on the Rectory and School buildings as has been POUA's primary offer as a mitigating measure for the demolition of the historic Church and Convent.
Specifically, the document allows the potential for demolition of the Rectory and School after 3 years if the City of Salem does not elect to purchase the two buildings.~ Secondly, the document does not include the SHC as a participatory member for the purpose of Dispute Resolution.~ And, finally, the document provides for the any member of the signatories (which do not include the Concurring Parties: SHC, HSI, Salem Planning Office) to dissolve the MOA at any point with only a 45-day period for resolution of disputed issues.
This document is not what we have put so much effort into in trying to reach a reasonable compromise in changing the face of the historical St. Joseph's Complex site.~ It grieves me to conclude that I cannot, in good conscience, personally sign onto this document.~ Tonight, we will see how the other members of the Commission feel.”
Ms. Herbert stated that the final MOA includes a new piece that arrived on 2/14/12 which is a Right of First Refusal for City of Salem to purchase the two buildings, if after 3 years a use other than reuse is contemplated. She stated that means demolition.
Mr. Hart noted for the record that the final MOA under review is dated 2/27/12.
Ms. Harper stated that they don’t mention much on the possibility of developing the school and rectory themselves. It does say that it was in the original plan to develop x number of units. She asked for how long they will consider developing it them themselves.
Ms. Herbert stated that it is the 3 years under the Right of First Refusal.
Ms. Harper asked if they will have them on the market at the same time as they try to develop their own plans or will the try to develop their own plans and then the put buildings on the market for six months and if it doesn’t sell, then it is within the three years.
Ms. Herbert stated that is was not clear whether they will be putting out applications for funding, such as developing the school, which they mentioned possibly might be some sort of medical center, or whether of not at that same time they will be advertising for other people who might be interested in purchasing either of or both the buildings. Also, she stated, it is not clear when they are going to be applying to Massachusetts Historical Commission (MHC) to list the buildings on the National Register. She stated that she got the impression at 2/14/12 meeting that it would be imminent, but that she did not get that sense from reading this MOA. She stated that this MOA of 2/27/12 is being presented to us as a final document to sign or not sign, so any comments we have can be made for the record but, in
terms of them being considered, she thought it would not be the case.
Ms. Bellin asked why there are signatories and invited signatories, including POUA.
Attorney Ruth Silman stated that it is a regulatory distinction for Section 106. The ACHP, the lead agency (DHCD) and the SHPO, and the THPO if it decides to participate, are automatically signatories. Then the lead agency has the discretion to invite signatories, and typically those who are invited are the proponent and the other sources of federal funds, in this case, the North Shore HOME Consortium. By regulation, those other funding sources for federal funds are not automatically signatories.
Ms. McCrea asked if it was Ms. Herbert’s understanding that the description of the project on page 2, in terms of what the development comprises which includes the renovated school and rectory, is null and void.
Ms. Herbert replied in the negative and stated that it is a recitation of what has been approved by the Salem boards. She stated that is does not mean that is what they are going to do, because one of the options they are now exploring is a use for school as some sort of health center.
Atty. Silman was in agreement.
Ms. Herbert asked the game plan in terms of advertising to attract other entities for potential purchase of the two buildings at the same time that POUA would explore their own funding sources to developing them.
Atty. Silman stated that the goal is to do both simultaneously. She stated that DHCD money is very tight right now according to Kate Racer and that there are more applications than funds. She noted that POUA already submitted an application long ago for the school and rectory, but that it was deferred because there wasn’t the capacity in market as far as DHCD saw it, so POUA would need to submit a new application to DHCD for funds to develop the school and rectory into housing. She stated that it is not to say that POUA won’t try, but it is not as easy. She stated that they could also seek a private funder. She stated that POUA’s goal is to market the properties to third parities for other uses and try to get financing either for what has been approved or something that fits
into the community and try as much as possible to get those buildings filled.
Ms. Herbert stated that, basically, as this process has gone on for about six months, the whole objective of the Commission was to see that the school and rectory were protected with preservation restrictions and that we were basically fiddling with the wording of “best efforts” versus following the secretary of the interior’s guidelines. She stated that what is on the table is a different situation.
Mr. Hart noted that on Page 5, e.4. state that the proponent will inform SHC bi-annually of its efforts in marketing the Rectory and School. He stated that every six months we will get an update.
Ms. Bellin stated that she finds the Right of First Refusal paragraph somewhat confusing and troubling. She stated that the second sentence, which says “any time following that period but prior to the sale”, she did not understand how that limitation fits it. She stated it almost suggests they will make efforts for three years, but any time after that, if there is a pending sale that would result in demolition, they will give the City the Right of First Refusal. She stated that it leaves an open door, that any time after 3 years if there is no pending sale, for them to go ahead and demolish. She stated that it seems there is a link to a pending sale that gives them the requirement to give the City the right of first refusal, which is a huge question for her.
Ms. Herbert stated that there are a number of things in the MOA that are really not spelled out well enough for the Commission to buy into.
Atty. Silman stated that her understanding is the intent is that POUA will try to market the buildings or develop themselves. She stated that the Right of First Refusal kicks in when there would be a sale of the properties for a use that isn’t going reuse the buildings. She stated that the planning office contemplates a sale, because they don’t contemplate taking them down themselves. She stated that she believed the city’s view that any future scenario where those buildings could potential come down, the city wants to be able to jump in and have that Right of First Refusal.
Ms. Bellin stated that she did not see how the city would be notified if the POUA, the present owner wants to demolish if there is no pending sale.
Atty. Silman stated that the school and rectory are subject to Demolition Delay. She felt the Right of First Refusal kicks in if either the school or rectory is going to come down, and noted that the city was involved in negotiating the provision.
Ms. Bellin stated that that is what she would like it to mean, but that is not necessarily how it could be interpreted, knowing how contracts can later come back to bite you. She felt it is troubling, not clear and leaves a huge hole.
Ms. Herbert stated that it was very troubling that it would ever be contemplated to take those buildings down, because that was the primarily mitigating eliminate for attempting to demolish the church and the convent. She stated it was a complete departure of what has been understood for six to seven years. She stated it was a last minute thing and it was presented at the 2/14/12 meeting in Boston and that the language was apparently worked on with the City and POUA outside of the rest of us.
Ms. Bellin stated that the Right of First Refusal is very important and is a good thing, but the concern is how it is phrased – by linking the provision with a pending sale. She stated that, as written, there is a gap.
Emily Udy stated that Historic Salem, Inc. is here to encourage the Commission not to sign as a concurring party. She stated that they have many of the same concerns. She stated that they disagree with the necessity to demolish the church in order for the project to be feasible. She stated that just in terms of the reason for the MOA, they disagree. She noted that, after years of promising and expressing the intent to maintain the rectory and school, using the phrase “best efforts” as legal phrase seems inadequate. She was also concerned with the contract coming back to bit.
Ms. Guy stated that what the Commission will be giving up by not signing is in Stipulations XI, XII and XIII concerning the opportunity to comment on amendments to the MOA and to be notified of any course of action with regard to duration or termination.
Ms. Herbert stated that her opinion is that, based on history, the Commission’s comments are not valued, so she felt not having the opportunity to comment does not change a thing.
Mr. Hart asked if we are a concurring party whether we sign or not.
Ms. Bellin and Ms. Guy replied in the negative.
Ms. Guy stated that in the places in the MOA, where is says Salem Historical Commission, the Commission would still have those provisions.
Ms. Bellin agreed, but stated that if the Commission does not sign, it is no longer any party to it.
Ms. Herbert stated that we can comment, but the important part is the dispute resolution, when there are issues, and we are not included in that.
Ms. Bellin stated that the language states that the Commission would be informed of proposed amendments. She stated that presumably by the time it is a proposed amendments, it has already been agreed to by everyone else. She stated that it brings back memories of the courthouse project.
Darrow Lebovici, Historic Salem, Inc., stated that with regard to the courthouse project, he believed the same motivations were expressed at the time why we should have signed, and we didn’t, and that as far as he can tell there has been no change in the behavior of the parties. He did not think that by itself is definitively an indicator of future actions.
Ms. Harper asking if by not signing, we are simply making a very loud statement that we do not approve of what is being said.
Ms. Herbert stated that whether or not it will impact anything is unknown. She stated that the question is: does this document have elements that are consistent with what our job is, or does it have elements that are totally opposed to what our job is.
Ms. Guy stated that signing or not signing doesn’t change the project. She stated that the Commission needs to weigh “making a statement” versus being able to comment on amendments and receive duration and termination notifications.
Ms. Herbert stated that we have already seen the value of our ability to comment.
Ms. Bellin stated that it is unlikely that any amendments to it would be in the direction of the things we have already been asked before. She stated that any amendments that come up are probably going to be minor tinkering with the provisions that we already don’t really like or care to endorse.
Ms. Herbert stated that she is disappointed that after all this time and effort that we are ending up here, but stated it does feel like a preconceived ending in spite of everything. She stated she is glad to have put the effort in, in spite of this outcome.
VOTE: Mr. Hart stated that it does not appear the Salem Historical Commission will have any substantive effect on the project and made a motion not to sign the MOA.
Ms. Bellin seconded the motion. Ms. Herbert, Ms. Bellin, Ms. Harper, Ms. Keenan and Mr. Hart voted in favor. Ms. McCrea abstained from voting. The motion so carried.
VOTE: There being no further business, Ms. McCrea made a motion to adjourn. Ms. Bellin seconded the motion, all were in favor and the motion so carried.
Respectfully submitted,
Jane A. Guy
Clerk of the Commission
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