Home Page | Middlesex Superior Court - Complaint |
Date: | August 21, 1997 |
Case: | Carroll et al v. Board of Appeal |
Docket: | MICV97-04400L |
Location: | Town of Billerica, Massachusetts |
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
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