, Salem, MA


May 10, 2014

Letter; Beverly should lift DPA restrictions


How wrong we were. The DEP project approval was appealed by Frank and Susan Kinzie, owners of neighboring Beverly Port Marina, and a long legal contest between them, the city of Beverly, and the state Department of Environmental Protection began. The Kinzie’s contended that the restaurant use of the property did not adequately comply with the Designated Port Area requirements as compared to the alternate proposal they filed with DEP to use the site as a boat repair facility. A judicial decision in June of 2011 upheld the DEP Chapter 91 permit, an appeals by the Kinzies to the state Superior Court also upheld the DEP permits, but their further appeal to the Supreme Judicial Court in a decision dated December 11 2013 upheld the Kinzies' contentions and ruled that DEP had not properly handled their competing boat yard proposal when they rejected it as “unfeasible.” In this legal contest between the Kinzies', the city, and the state, which lasted more than two-and-a-half years, from early 2010 until December 2013, the Kinzies' attorney, Adam Brodsky, and the city’s attorney, Richard Nylen, consumed many thousands in legal fees and expenses debating the use of this site. These efforts were in addition to the significant efforts by the Beverly city solicitor and the state attorney general. We have never seen a detailed accounting of the city’s payments, nor of course the Kinzie's, but both sides invested hundreds of legal hours in these appeals.

In the spring of 2013, while the appeal to the Supreme Judicial Court was still unresolved, the city contacted Mr. Leone and stated that they wanted to conclude a lease. They recognized the extreme effort and significant investment that Joe Leone had made over the past seven years and wanted to have a detailed lease completed and approved by Beverly City Council before the end of 2013. This of course was in anticipation of a final court decision allowing the project to go forward in the near future. Mr. Leone’s attorney, Lou Katz, and the city of Beverly’s attorney, Gerald Fong, produced a 39-page lease that was approved by the Beverly City Council and signed by Mayor Scanlon. This effort cost Mr. Leone in excess of $50,000 in legal and consultants' fees, pushing his overall investment to over $200,000, and I am sure it cost the city of Beverly a similar sum. Part of this lease process required Mr. Leone to have prepared new architectural and site engineering drawings submitted to the Beverly Planning Board for approval of the 200-seat restaurant.   

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