|Home Page||Middlesex Superior Court - Complaint|
|Date:||May 15, 1997|
|Case:||Dirring v. Board of Appeal|
|Location:||Town of Billerica, Massachusetts|
COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT No.: ___________________________________ CHARLES DIRRING ) Plaintiff ) V. ) COMPLAINT ) THE BOARD OF APPEAL OF THE ) TOWN OF BILLERICA MASSACHUSETTS, ) DORIS M. PEARSON, CHAIRMAN ) JOHN F. GRAY, JR., VICE-CHAIRMAN ) ELLEN SARGENT, SECRETARY ) JOSEPH P. SHAW ) FRANCIS M. FRAINE ) PATRICIA H. FLEMING ) JAY H. THOMAS, III ) 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 failed to act on a complaint that multiple decisions, particularly a lack thereof, of the Inspector of Buildings have resulted in a failure to enforce the provisions of the Zoning By-Law of the Town of Billerica and those Rules, Regulations and Laws of the Commonwealth of Massachusetts. This appeal to the Board was global in nature. This lack of enforcement was most recently illustrated in a decision received by the Plaintiff on January 9, 1997 where the Inspector of Buildings refused to act on issues raised in my December 21, 1996 letter to the Inspector of Buildings, concerning 83 Alexander Road, Units #6 and #7. PARTIES 2. The Plaintiff Charles Dirring resides at 86 Alexander 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 total failure of the Board to act. 3. The defendant Board of Appeal 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. 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 4. The provisions of the Billerica Zoning By-Law (BZBL) and the Massachusetts State Building Code (MSBC) were being violated in the locus of buildings at 77 and 83 Alexander Road, Billerica, Massachusetts and this matter was first brought to the attention of the Town of Billerica in 1989. 5. The Plaintiff has furnished numerous photographs, video tapes and written evidence of violations at the locus of buildings at 77 and 83 Alexander Road, Billerica, Massachusetts to officials of the town of Billerica over the past seven years. 6. In March of 1995, the Town Administrator advised the Governor of the Commonwealth of Massachusetts in writing that the Town was pursuing further remedial actions against a number of property owners, but remedial actions and results have consistently been unobservable. 7. The Plaintiff filed a letter of complaint to the building inspector on December 24, 1996 requesting an investigation of the premise of Engineering Lift Truck Service, 83 Alexander Road, Units 6 & 7, relative to seven items (and any other new items that the building department would choose to add), where such violations may exist. A summary of these seven and three past issues ("a" through "j" below) are: a. Sale of trucks without motor vehicle sales license or Special Permit. b. Rental of trucks without motor vehicle rental license, Variance or Special Permit.. c. Leasing of Trucks without motor vehicle leasing license, Variance or Special Permit.. d. Painting of trucks without spray booth, dust capture ventilation & explosion protection. e. Repairing of Trucks without a Special Permit. f. Salvage/ scrapping of trucks without motor vehicle salvage license, Variance or Special Permit. g. Office Space with only one egress point. h. Hazardous materials generation (oil, antifreeze, paint, etc.) without effective disposal equipment. I. Motor vehicle washing without effective disposal equipment. j. Industrial uses without the required green areas, trees and fencing. 8. A written request on December 24, 1996 was made to the office of the building inspector, by the Plaintiff, to advise the Plaintiff in writing of all violations identified and the specific steps that the office of the building inspector needs to take to remedy any violations found. 9. The building inspector responded in a January 7, 1997 letter to Plaintiff that her office did "not find any apparent zoning violations". The building inspector made no comment on any building code violations and took no remedial actions. 10. The Occupancy Permit Engineering Lift Truck Service, 83 Alexander Road, Units 6 & 7 of an industrial building is for "Office Use" (Unit 7) and "Storage & Distribution" (Unit 6). 11. Engineering Lift Truck Service, 83 Alexander Road, Units 6 & 7 has no Occupancy Permit consistent with the uses of buying, selling, renting, leasing, repairing or rebuilding motor vehicles. 12. The Engineering Lift Truck Service, 83 Alexander Road, Units 6 & 7 are situated in an Industrial Zoning District according to the Billerica Zoning By-Law. 13. The Engineering Lift Truck Service, 83 Alexander Road, Units 6 & 7 are not licensed by the Town of Billerica to buy, sell, rent, lease, repair or rebuild motor vehicles. 14. The building inspector has inhibited access, on several occasions to some of their public records and totally denied access to a room full of other public records. 15. Several public records violations were appealed to the Supervisor of the Commonwealth of Massachusetts for adjudication and relief. 16. The office of the building inspector has been non-cooperate with the Plaintiff in and effort to obfuscate and aggravate the collection of any evidence relating to their inaction to an exhaustive code compliance effort at these premises. 17. The matter of the failure of the building inspector to affect zoning and building code compliance was appealed to the Billerica Board of Appeal and a public hearing was held on March 19, 1997. 18. An appeal to force the building inspector to act accordingly, consistent with the requirements of MGL 40A was presented to Board. 19. The appeal to the Board indicated that the building inspector failed to act on a complaint that multiple decisions and has had resulted in a failure to enforce the provisions of the Zoning By-Law of the Town of Billerica and those Rules, Regulations and Laws of the Commonwealth of Massachusetts. 20. This appeal to the Board was global in nature to cause the building inspector and the Board to address any violations in the industrial land and premises in the locus of 77 and 83 Alexander Road. 21. This action was necessary because of the lack of timely and effective enforcement on building code and zoning violations. 22. The advertisement of the March 19, 1997 Public Hearing, in a newspaper of general circulation (the Billerica Minuteman), required by Massachusetts General Laws, Chapter 40A, was inconsistent with the exact "Nature of Application or Appeal" provided to the Board in the Plaintiff's February 7, 1997 "Application for a Hearing". 23. The failure of the Board to properly advertise the Board's March 19, 1997 Public Hearing was part of the oral testimony to the Board on March 19, 1997. 24. Town Counsel of the Town of Billerica was present for the entire March 19, 1997 public hearing regarding this case. 25. With the advice and assistance of Town Counsel, this formal request to the Board by the Plaintiff to remedy this defect was denied. 26. An inspector from the Town of Billerica building inspector's office was present for the entire March 19, 1997 public hearing regarding this case. 27. Two members of the Board of Selectmen of the Town of Billerica were present for the entire March 19, 1997 public hearing regarding this case. 28. No oral testimony was provided by the office of building inspector or the Board of Selectmen at the March 19, 1997 public hearing. 29. The Plaintiff submitted oral and written testimony at the public hearing of March 19, 1997. 30. No other party provided oral or written testimony at the March 19, 1997 public hearing. 31. The Board asked no questions of the Plaintiff after providing oral and written testimony regarding the substance of the case at the March 19, 1997 public hearing. 32. Evidence has been furnished by the Plaintiff to the Board and is on file in the building inspector's office and/or the Board's office regarding Lift Truck Service, 83 Alexander Road, Units 6 & 7, to wit: a. The December 24, 1996 letter of complaint letter to the building inspectors. b. Copies of the appropriate sections of the Billerica Zoning By-Law that identify truck salvage and rental uses as prohibited uses attached to the building inspectors letter of January 7, 1997. c. A Bill of Sale for $13,150 for a Fork Truck by "Engineering Lift Truck Service" (emphasis added). d. A determination by the State Building Inspector's Office that a "...fork lift vehicle..." was a "...land motor vehicle..." thus is a motor vehicle use. e. A Town of Billerica Occupancy Permit for Unit 6 identifying that it was only for "Storage and Distribution" f. A Town of Billerica Occupancy Permit for Unit 7 was only for "Office Space". g. A determination by the State Building Inspector's Office that the Occupancy Permit for Units 6 and 7 as representing a "...life threaten to the occupants...". h. A determination by the State Building Inspector's Office that the Occupancy Permit for Units 6 and 7 that identified access/egress violations I. A determination by the State Building Inspector's Office that the Occupancy Permit for Units 6 and 7 that the premises " . . . violate the non-combustible construction classification . . ." and violation of occupancy permit requirements. j. A determination by the Department of Environmental Protection's Office that identifies the lack of effective hazardous materials collection equipment "proper and lawful management and disposal of all oil and hazardous waste". 33. The Board took the matter under advisement and closed the public hearing on March 19, 1997. 34. The Board subsequently dispatched Mary Pasho, a resident of the town, to the hallway to advise the Plaintiff that the Board intended to re-opened the public hearing on March 19, 1997. 35. The Plaintiff returned to the March 19, 1997 Board meeting and the Board advised the Plaintiff that another vote would be taken regarding the Plaintiff's appeal. 36. After a discussion about the Board's need to review the appeal in more detail, a motion was made and voted by the Board to re-open the public hearing. 37. The reason stated by the Board to continue the public hearing was to allow "discussions" to occur between the Board and building inspector's office, from March 19, 1997 through April 9, 1997. 38. A motion was made and voted to continue the matter until April 9, 1997 as "the last order of business." 39. After the decision to reopen the public hearing and continue the hearing to April 9, 1997, the Board moved on to other matters, the Plaintiff again left the hearing room, and the Plaintiff retired to the Plaintiff's residence. 40. On March 27, 1997, the Board sent a letter dated March 26, 1997 indicating that the Board Chairman "...declared this hearing closed...". 41. The Plaintiff had no knowledge that the Chairman had "...declared this hearing closed..." until receiving the letter of March 26, 1997. 42. The Board subsequently re-opened the public hearing on April 9, 1997. 43. On April 9, 1997, after all the scheduled hearings before the Board were heard, the Board and advised the Plaintiff that no additional oral or written testimony could be provided to the Board. 44. The Plaintiff requested at the April 9, 1997 public hearing that the Board disclose if the Board had received other evidence and the Chairman indicated that the Board had received "paper work" from the building department two days prior to the March 19, 1997 public hearing. 45. The Plaintiff requested access to all written evidence of record at the public hearing on April 9, 1997 and requested was denied, even though it was a public record and in the possession of the Board at that time. 44. The Board voted without discussion to deny any relief. 45. Even though there was no discussion among the Board members, their decision contained five detailed and specific recommendations for denial. RELIEF SOUGHT 46. That a thorough inspection of the property of Engineering Lift Truck Service, 83 Alexander Road, Units 6 & 7 be made forthwith and without delay. 47. That inspection of the property of Engineering Lift Truck Service, 83 Alexander Road, Units 6 & 7 be accomplished using a totally independent and qualified party, with no ties to the town of Billerica. 48. To include any other new items that are observed in this exercise at the premises of Engineering Lift Truck Service, 83 Alexander Road, Units 6 & 7. 49. That the inspector(s) ordered above be selected and/or appointed by the State Building Inspector's office to ensure building code and zoning compliance at Engineering Lift Truck Service, 83 Alexander Road, Units 6 & 7, from the point of view of an arms-length and qualified observer. 50. That a written report of any violations observed at Engineering Lift Truck Service, 83 Alexander Road, Units 6 & 7, be produced, including specifically the steps required to remedy any violations and a definitive remedial timetable, with non-compliance penalties. 51. That "Cease and Desist Orders" be implemented forthwith and without delay where violation(s) at Engineering Lift Truck Service, 83 Alexander Road, Units 6 & 7, are observed. 52. That free access be granted to every public record held by the Town of Billerica related to this case, and be made available to the Plaintiff and other parties that request access. 53. That fines to be sought, where violations at Engineering Lift Truck Service, 83 Alexander Road, Units 6 & 7, can be documented. 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. Signed under the pains and penalties of perjury: _____________________________ Charles Dirring, Plaintiff Address: 86 Alexander Road Billerica, Massachusetts 01821
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