MIDDLESEX, SS.                          SUPERIOR COURT DEPARTMENT
                                        No.: MICV97-04400L
                              
___________________________________
RICHARD CARROLL                    )
CHRISTOPHER DeSIMONE               )
JAMES FAHEY                        )
LINDA KEEFE                        )
DONALD TURNER                      )
               Plaintiffs          )    
          V.                       )    COMPLAINT
                                   )
THE BOARD OF APPEAL OF THE         )
  TOWN OF BILLERICA MASSACHUSETTS  )
DORIS M. PEARSON                   )
JOHN F. GRAY, JR.                  )
ELLEN SARGENT                      )
JOSEPH P. SHAW                     )
FRANCIS M. FRAINE                  )
PATRICIA H. FLEMING                )
JAY H. THOMAS, III                 )
TRINDA REALTY TRUST,               )
 LAWRENCE TRIBINO, TRUSTEE         )
               Defendants          )
___________________________________)



                          JURISDICTION

1.   This is a complaint pursuant to MGL 40A to annul a decision
of the Board of Appeal of the Town of Billerica (the "Board")
which granted a variance to divide land, create lots of other
than a rectangular shape, move lot lines and substantially reduce
frontage requirements located at Pinetree Road, Billerica,
Massachusetts as shown on the Board of Assessor's Map as Plate
77, Parcel 148 and recorded in the Middlesex North Registry of
Deeds Transfer Certificate of Title No. 24572 Page 343 and 344. 
                                
                            PARTIES

2.   The Plaintiff Richard Carroll resides at 2 Fahey Way,
Billerica, Massachusetts, is an abutter to the property in
question, and is an aggrieved party under MGL 40A, Sec. 17, who
is and will be directly, substantially and adversely affected by
the variance granted by the Board.

3.   The Plaintiff Christopher DeSimone resides at 7 Pinetree
Road, Billerica, Massachusetts, is an abutter to the property in
question, and is an aggrieved party under MGL 40A, Sec. 17, who
is and will be directly, substantially and adversely affected by
the variance granted by the Board.

4.   The Plaintiff James Fahey resides at 16 Fahey Way,
Billerica, Massachusetts, is an abutter to the property in
question, and is an aggrieved party under MGL 40A, Sec. 17, who
is and will be directly, substantially and adversely affected by
the variance granted by the Board.

5.   The Plaintiff Linda Keefe resides at 9 Pinetree Road,
Billerica, Massachusetts, is an abutter to the property in
question, and is an aggrieved party under MGL 40A, Sec. 17, who
is and will be directly, substantially and adversely affected by
the variance granted by the Board.

6.   The Plaintiff Donald Turner resides at 5 Pinetree Road,
Billerica, Massachusetts, is an abutter to the property in
question, and is an aggrieved party under MGL 40A, Sec. 17, who
is and will be directly, substantially and adversely affected by
the variance granted by the Board.

7.   The Defendant Trinda Realty Trust, Lawrence Tribino,
Trustee, resides in Florida with a mailing address at Post Office
Box 601093, North Miami, Florida 33160 and is the property owner
of the land stated in the application for a variance to the
Billerica Board of Appeal.   

8.   The defendant Board of Appeal is, and its individual members
are, the duly constituted zoning board of appeal of the Town of
Billerica and citizens who reside in the Town of Billerica.  In
voting to grant the variance at issue, Chairman Doris Pearson,
Secretary Ellen Sargent, Member Francis M. Fraine and Alternative
Member Patricia C. Flemming voted affirmatively.  Member Joseph
P. Shaw was also the Applicant through Trinda Realty Trust,
Lawrence Tribino, Trustee and did not participate at the public
hearing.  Vice Chairman John F. Gray and Alternate Member Jay H.
Thomas, III did not participate.  The names and addresses of the
individual defendant members and alternate members are as
follows:

          a.   Doris M. Pearson, Chairman
               25 Harjean Road
               Billerica, Massachusetts 01821

          b.   John F. Gray, Jr., Vice-Chairman
               65 Ellingwood Avenue
               Billerica, Massachusetts 01821

          c.   Ellen Sargent, Secretary
               Bridle Road
               Billerica, Massachusetts 01821

          d.   Joseph P. Shaw, Member
               22 Marlyn Road
               Billerica, Massachusetts 01821

          e.   Francis Fraine, Member
               24 Floyd Street
               Billerica, Massachusetts 01821

          f.   Patricia H. Fleming, Alternate Member
               753 Boston Road
               Billerica Massachusetts 01821

          g.   Jay H. Thomas, III, Alternate Member
               68 Pinehurst Avenue
               Billerica Massachusetts 01821
                             FACTS
                                
9.   A parcel of land is located at Pinetree Road, Billerica,
Massachusetts as shown on the Board of Assessor's Map as Plate
77, Parcel 148 and recorded in the Middlesex North Registry of
Deeds Transfer Certificate of Title No. 24572 Page 343 and 344.

10.  The parcel of land shown on the Billerica Board of
Assessor's Map as Plate 77, Parcel 148, is shown on the Board of
Assessor's records as consisting of two and five hundredths
(2.05) acres or eighty nine thousand, two hundred and ninety
eight (89,298) square feet and fifty two (52) feet of frontage.

11.  The parcel of land shown on the Billerica Board of
Assessor's Map as Plate 77, Parcel 148, lies in a Rural
Residential Zoning District according the Billerica Zoning By-Law
Map and described in Section 4, "Zoning District Boundaries".

12.  The parcel of land shown on the Billerica Board of
Assessor's Map as Plate 77, Parcel 148, has an assessed valuation
of seventy nine thousand, two hundred dollars ($79,200.00).

13.  The Billerica Zoning By-Law, Section 9.4.A and Section 9.5,
requires that a building lot in a Rural Residential Zoning
District must have a minimum of two hundred (200) feet of
frontage and a minimum of fifty thousand (50,000) square feet in
area.

14.  The Billerica Zoning By-Law, Section 9.4.C, requires that
"all lots shall be so far as possible regular and symmetrical
with the least possible deviations from a nearly rectangular
shape."  

15.  The Billerica Zoning By-Law, Section 9.2, requires that "no
lot shall be reduced in area, or changed in size or shape so that
a building upon it or the lot fails to comply with the area,
frontage, setback, yard or other provisions of this by-law."

16.  Trinda Realty Trust, Lawrence Tribino, Trustee, is the owner
of the land located at Pinetree Road, Billerica, Massachusetts as
shown on the Board of Assessor's Map as Plate 77, Parcel 148 and
recorded in the Middlesex North Registry of Deeds Transfer
Certificate of Title No. 24572 Page 343 and 344.

17.  The Defendant Joseph P. Shaw has executed a Purchase
Agreement (the "Agreement"), subject to certain conditions, with
Trinda Realty Trust, Lawrence Tribino, Trustee, to acquire the
land located at Pinetree Road, Billerica, Massachusetts as shown
on the Board of Assessor's Map as Plate 77, Parcel 148 and
recorded in the Middlesex North Registry of Deeds Transfer
Certificate of Title No. 24572 Page 343 and 344.

18.  Included in the "Agreement" with Trinda Realty Trust,
Lawrence Tribino, Trustee, by the Defendant Joseph P. Shaw, is
the purchase of a portion of a parcel of land known as Land Court
#LCC2792U, Lot 407, plus ten thousand (+10,000 +/-) square feet.
     
19.  One of the "Agreement" conditions with Trinda Realty Trust,
Lawrence Tribino, Trustee, is that the defendant Joseph P. Shaw
must obtain any and all variances, at his own expense, to divide
the land in the "Agreement" and create two (2) house lots on the
land.

20.  The "Agreement" purchase price with Trinda Realty Trust,
Lawrence Tribino, Trustee, by the defendant Joseph P. Shaw is one
hundred, fifty thousand dollars ($150,000.00).

21.  An advertisement (the "Advertisement") was placed in the
Billerica Minuteman newspaper on July 3, 1997 and July 10, 1997,
announcing the intent to seek a variance by the "Board" to "divide
land into two lots, lacking sufficient frontage on land located
in Village Residence Zone. Said premises is located at PINE TREE
ROAD, BILLERICA, MA, as shown on the Assessor's Map as Plate 77,
Parcel 148 and recorded in the M.N.R.D. Transfer Certificate of
Title No. 24572 Page 343 and 344."

22.  The "Advertisement" did not include the parcel of land known
as Land Court #LCC2792U, Lot 407, plus ten thousand (+10,000 +/-)
square feet.

23.  The "Advertisement" did not include the intent to seek a
variance pursuant the Billerica Zoning By-Law, Section 9.4.C,
which requires that "all lots shall be so far as possible regular
and symmetrical with the least possible deviations from a nearly
rectangular shape."

24.  The "Advertisement" did not include the intent to seek a
variance to redraw lot lines.

25.  The "Advertisement" incorrectly identified the land located
"at PINE TREE ROAD, BILLERICA, MA, as shown on the Assessor's Map
as Plate 77, Parcel 148 and recorded in the M.N.R.D. Transfer
Certificate of Title No. 24572 Page 343 and 344" as being in a
"Village Residence Zone" and "PINE TREE" should have been stated
as "Pinetree".

26.  The "Advertisement" was defective when it failed to warning
the abutters and the inhabitants of the Town of Billerica that
significant, substantial and critical facts were not advertised,
but were indeed incorporated in, and a crucial part of, the
variance request and proceedings.

27.  The defects in the "Advertisement" were fatal to the
variance request and proceedings.

28.  On July 23, 1997, the "Board" held a public hearing on the
"Advertisement".

29.  At the Public Hearing on July 23, 1997, a letter was
requested to be entered into the record that was written by
Abutter Charles Turner, but the "Board" refused to accept the
letter and enter the letter into the record.

30.  No written evidence was entered into the record of
proceedings by the "Board" at the Public Hearing on July 23, 1997
on the "Advertisement".

31.  The "Board" voted to grant the variance in the
"Advertisement" on July 23, 1997.

32.  The "Board" voted to grant the variance in the
"Advertisement" on July 23, 1997 in spite of the unanimous
objections by every abutter present at the hearing.

33.  The "Board" voted to divide the land described in
"Advertisement" into two lots consisting of fifty thousand
(50,000) square feet each.

34.  The land area of the land described in the "Advertisement"
is substantially smaller than two times fifty thousand (2 x
50,000) square feet.

35.  The "Board" cannot mathematically order that two lots be
created of fifty thousand (50,000) square feet each when the
"Advertisement" of the land indicates an aggregate of land
available of less than the one hundred thousand (100,000) square
feet of land.

36.  The "Board", in granting a variance to create a lot or lots
of less than fifty thousand (50,000) square feet in a Rural
Residence Zoning District, is de facto granting a "Use" variance
because the town also has residential zoning district requiring a
minimum of forty thousand (40,000) square feet of land area.

37.  The "Board" produced no written evidence to support the vote
to divide the land described in "Advertisement" into two lots
consisting of fifty thousand (50,000) square feet each.

38.  The "Board" voted to cut the existing frontage of fifty two
(52) feet or 26% of required minimum into two twenty six (26)
feet of frontage or 13% of the required minimum.

39.  The "Board" produced no written evidence to support the vote
to cut the existing frontage of fifty two (52) feet or 26% of
required minimum into two twenty six (26) feet of frontage or 13%
of the required minimum.

40.  The "Board" voted to create two lots of an irregular shape
which were not rectangular as required by the Billerica Zoning
By-Law, Section 9.4.C.

41.  The "Board" produced no written evidence to support the vote
to create two lots of irregular shape counter to the requirements
of the Billerica Zoning By-Law, Section 9.4.C.

42.  The "Board" concluded in its "Reasons for Vote" in its July
23, 1997 decision that "relief could be granted without a
detriment to the public good", but failed to produce or rely on 
any written evidence of record to support this reason. 

43.  The "Board" concluded in its "Reasons for Vote" in its July
23, 1997 decision that a "literal enforcement of the provisions
of the Zoning By-Law would cause the petitioner a hardship,
financial or otherwise", but failed to produce or rely on any
written evidence of record to support this reason.

44.  The "Board" ignored in its "Reasons for Vote" in its July 23,
1997 decision that granting the variance would result in the
antithesis of the statutory hardship requirement because granting
the variance potentially produces a substantial profit (nearly
double the value of the land) to the applicants, demonstrated by
comparing the current assessed value of $79,200.00 to the
"Agreement" purchase price of $150,000.00. 

45.  The "Board" concluded in its "Reasons for Vote" in its July
23, 1997 decision that "the shape of the lot creates a hardship
to the petitioner", but failed to produce or rely on any written
narrative evidence of record to support this reason.

46.   The "Proposed Lotting Plan" graphic filed with the "Board"
by the Defendants was missing key lot perimeter dimensions and
failed to show the existing lotting of the land and lot lines.

47.   The "Proposed Lotting Plan" graphic filed with the "Board"
by the Defendants violated the rules and regulations of the
"Board" because it was missing key lot perimeter dimensions and
failed to show the existing lotting of the land and lot lines.

48.   The "Proposed Lotting Plan" graphic, including the parcel
of land located at Pinetree Road, Billerica, Massachusetts as
shown on the Board of Assessor's Map as Plate 77, Parcel 148 and
recorded in the Middlesex North Registry of Deeds Transfer
Certificate of Title No. 24572 Page 343 and 344, showed the
creation of two odd shaped lots.

49.  Creating odd shaped lots is inconsistent with, and
antithetical to, the requirements and intent of the Billerica
Zoning By-Law, Section 9.4.C. 

50.  Using the reason that a parcel of land is odd shaped and not
rectangular, then dividing this parcel into two odd shaped lots
that are both not rectangular is inconsistent with, and contrary
to, the intent and requirements of the Billerica Zoning By-Law,
Section 9.4.C.
 
51.  Creating odd shaped lots is inconsistent with, and contrary
to, the requirements, intent and use of Massachusetts General
Laws, Chapter 40A, Section 10. 

52.  Using the reason that a parcel of land is odd shaped and not
rectangular, then dividing this parcel into two odd shaped lots
that are both not rectangular is inconsistent with, and contrary
to, the intent and requirements of Massachusetts General Laws,
Chapter 40A, Section 10. 

53.  The "Board" concluded in its "Reasons for Vote" in its July
23, 1997 decision that "Since the majority of the neighboring
lots in the area are 30,000 square feet and this variance will
create two lots containing 50,000 square feet of land, the board
felt relief could be granted without nullifying or substantially
derogating from the intent and purpose of the Zoning By-Law", but
failed to produce or rely on any written evidence of record to
support this reason.

54.  The "Board" stated in its July 23, 1997 decision that "the
majority of the neighboring lots in the area are 30,000 square
feet" but failed to observe that about half of the abutting lots
are much larger than 59,000 square feet.

55.  The "Board" stated in its July 23, 1997 decision that "the
majority of the neighboring lots in the area are 30,000 square
feet" but this alleged fact is irrelevant to the requirements of
Massachusetts General Laws, Chapter 40A, Section 10.

56.  The "Board" filed its July 23, 1997 decision on August 5,
1997 with the Billerica Town Clerk as required by Massachusetts
General Laws.

57.  The "Board" has yet (August 20, 1997) to produce the minutes
of the July 23, 1997 meeting relating to its decision filed on
August 5, 1997 with the Billerica Town Clerk as required by
Massachusetts General Laws.

58.  The failure of the "Board" to produce timely meeting minutes
of the July 23, 1997 meeting relating to its decision filed on
August 5, 1997 with the Billerica Town Clerk as required by
Massachusetts General Laws, denies the Plaintiffs to due process
in the proceedings.

59.  The failure of the "Board" to produce timely meeting minutes
of the July 23, 1997 meeting relating to its decision filed on
August 5, 1997 with the Billerica Town Clerk as required by
Massachusetts General Laws, excludes the "Board" from using 
minutes as evidence in any future proceedings.

60.  The "Board" produced no written evidence to support the vote
to create lots inconsistent with rectangular requirements of the
Billerica Zoning By-Laws, Section 9.4.C.

61.  The "Board" has no written record of any facts, and no
written specifics, to support the granting of a variance from the
terms of the Billerica Zoning By-Law owning to circumstances
relating to soil conditions, shape, or topography of such land or
structures that would prove and persuade the "Board" to (1)
further divide land, (2) diminish frontage requirements, (3)
create lots inconsistent with rectangular requirements and (4)
combine parcels with other parcels not identified in the
"Advertisement", as required by Massachusetts General Laws,
Chapter 40A, Section 10. 

62.  The "Board" has no record of any facts or written specifics
to support the granting of a variance from the terms of the
Billerica Zoning By-Law owning to circumstances relating to 
soil conditions, shape, or topography of such land or structures
that would persuade the "Board" to (1) further divide land, (2)
diminish frontage requirements, (3) create lots inconsistent with
rectangular requirements and (4) combine parcels with other
parcels, that especially affecting such land or structures but
not affecting generally the zoning district in which it is
located , as required by Massachusetts General Laws, Chapter 40A,
Section 10. 

63.  The October 1992 Billerica Town Meeting considered and
rejected the matter of permitting "Pork Chop" Lots (i.e., odd
shaped lots resembling a pork chop) that lacked the required
frontage, but had at least forty (40) feet of frontage, by
requiring that the minimum lot size be expanded to twice the
required area.

64.  The rejection of the "Pork Chop" lot concept by the
Billerica Town Meeting further defined the "intent" of the
Billerica Zoning By-Law to have "Pork Chop" lots in Rural
Residential Zoning Districts to have at least forty (40) feet of
frontage and one hundred thousand (100,000) square feet.

65.  The parcel of land in the "Advertisement" is a "Pork Chop"
lot.

66.  The "Board" has no record of any facts or written specifics
to support the granting of a variance from the terms of the
Billerica Zoning By-Law owning to circumstances relating to 
soil conditions, shape, or topography of such land or structures
that would persuade the "Board" to (1) further divide land, (2)
diminish frontage requirements, (3) create lots inconsistent with
rectangular requirements and (4) combine parcels with other
parcels, that especially affecting such land or structures but
not affecting generally the zoning district in which it is
located that desirable relief may be granted without substantial
detriment to the public good and without nullifying or
substantially derogating from the intent and purpose of such
ordinance or by-law , as required by Massachusetts General Laws,
Chapter 40A, Section 10.

67.  The "Board" has no record of any facts or written specifics
to support the granting of a variance from the terms of the
Billerica Zoning By-Law owning to circumstances relating to 
soil conditions, shape, or topography of such land or structures
that would persuade the "Board" to (1) further divide land, (2)
diminish frontage requirements, (3) create lots inconsistent with
rectangular requirements and (4) combine parcels with other
parcels, that especially affecting such land or structures but
not affecting generally the zoning district in which it is
located that a literal enforcement of the provisions of the
ordinance or by-law would involve substantial hardship, financial
or otherwise, to the petitioner or appellant, as required by
Massachusetts General Laws, Chapter 40A, Section 10.

68.  Massachusetts General Laws, Chapter 40A, Section 10 requires
that three conjunctive tests be met in granting a variance.

69.  The "Board" exceeded its authority in granting the variance
in not making findings required by Massachusetts General Laws,
Chapter 40A, Section 10 and failed to meet the requirements of
any of the three conjunctive tests, when all were required to be
met by Massachusetts General Laws, Chapter 40A, Section 10
(emphasis added):
     "The permit granting authority shall have the power after
     public hearing for which notice has been given by
     publication and posting as provided in section eleven and by
     mailing to all parties in interest to grant upon appeal or
     upon petition with respect to particular land or structures
     a variance from the terms applicable zoning ordinance or by-law
     where such permit granting authority specifically finds
     that owning to circumstances relating to soil conditions,
     shape, or topography of such land or structures and
     especially affecting such land or structures but not
     affecting generally the zoning district in which it is
     located, a literal enforcement of the provisions of the
     ordinance or by-law would involve substantial hardship,
     financial or otherwise, to the petitioner or appellant, and
     that desirable relief may be granted without substantial
     detriment to the public good and without nullifying or
     substantially derogating from the intent and purpose of such
     ordinance or by-law."

70.  The "Board" exceeded its authority in granting the variance
in not making findings required by Massachusetts General Laws,
Chapter 40A, Section 10 because it merely recited the
requirements, but failed to prove by evidence that the variance
was justified.

71.  The decision by the "Board" to grant the variance was
arbitrary, whimsical and capricious.

72.  The "Board", in grossly exceeding its authority in granting
the variance and not making any findings required by
Massachusetts General Laws, Chapter 40A, Section 10, violated the
civil rights of the abutters and others.

73.  The "Board", in grossly exceeding its authority in granting
the variance and not making findings required by Massachusetts
General Laws, Chapter 40A, Section 10, acted as individuals, and
as individuals, violated the civil rights of the abutters and
others.

74.  The "Board", grossly exceeding its authority in granting the
variance because the Planning Board, not the Board of Appeal is
authorized to create subdivisions of land.

75.  The "Board", grossly exceeding its authority in granting the
variance because the "Board" did not making findings required by
Massachusetts General Laws with respect to the alleged power of
the "Board" to divide or sub-divide land. 

76.  The "Board" exceeded its authority in granting the variance:
     a.   In not making findings required by Massachusetts
          General Laws, Chapter 40A, Section 10 as to the
          circumstances of soil conditions, shape, or topography
          of such land or structures affecting the locus but not
          affecting generally the district in which it is
          located, and
     b.   In failing to properly and correctly advertise all of
          the components of the variance request that were voted
          and granted by the "Board" as required by Massachusetts
          General Laws, Chapter 40A, and  
     c.   When pursuant to Massachusetts General Laws, Chapter
          40A, Section 10 no variance may authorize a use not
          otherwise permitted in the district in which the land
          is located, and
     d.   In direct violation of Sections 9.2, 9.4.A, 9.4.C and
          9.5 of the Billerica Zoning By-Law, referenced herein.

                         RELIEF SOUGHT

WHEREFORE the Plaintiff request this Honorable Court to:
     a.   Annul the Board's decision.
     b.   Award the Plaintiffs their Attorney fees and costs of
          this action.
     c.   Grant such relief as is just and proper.
     d.   Award civil rights monetary damages as is just and
          proper. 
     e.   Enjoin the "Board" from the future granting of
          variances that divide or subdivide land that fails to
          meet the requirements of the Billerica Zoning By-Law.   

Signed under the pains and penalties of perjury:



_____________________________      _____________________________
RICHARD CARROLL, Plaintiff         CHRISTOPHER DeSIMONE,Plaintiff 
2 Fahey Way                        7 Pinetree Road
Billerica, MA 01821                Billerica, MA 01821


_____________________________      _____________________________
JAMES FAHEY, Plaintiff             LINDA KEEFE, Plaintiff 
16 Fahey Way                       9 Pinetree Road
Billerica, MA 01821                Billerica, MA 01821


_____________________________
DONALD TURNER, Plaintiff
5 Pinetree Road
Billerica, MA 01821

Copyright (c) 1998 BillericaNews. All rights reserved.