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HomeMy WebLinkAbout1000 OST.-W.BARN. RDTO:Robert Smith, Itwn C3ounsel FOR:Jeffrey Parkc Administrative Sii^efvisor SUBJECT:Ccsrplaint of Maiteen MacEachem v.Luke P.Lally,et al I would like to offer for your infonration and for the record seme com ments concerning the statements contained in the subject ccnplaint.These are k^ed to the paragraph number in the complaint. 5.Personnel JLn the Selectmen's Office have no recollection of being informed of anything pertaining to the bam.The only informa tion clearly received was the address:1000 Osterville-West Bamstable Road. 6.This paragraph is false.The license was applied for,paid for and issued all on April 5,1982 as shown on Enclosures 1-3. The Selectmen's Office did not notify anyone prior to issuance. .In accordance with policy,memorandum copies of the license ap plication were forwarded t-the Building Inspector. 8.False.This does not correctly represent either the procedure or facts. 12.I informed Richard MacEachem that Joseph Dali:iz and I were willing to meet with him to discuss the criteria necessary to apply for a special permit from the Zoning Board of i^jpeals.Mr.MacEachem represented that.he was ignorant of procedures and requested help.C There was no discussion of the display of merchandise in the bam. 13.Tbtally false. 14.No suggestion was made about vtot the Zoning Board of J^peals . would do.It was noted that the case did not constitute a financial hardship under Zoning Board of J^^peals standards. It is correct that both Joseph Daluz and I offered the opinion that the best technique was to approach the Zoning Board of i^peals personally without using an attomey as a representative. I am aware that this information is not relevant to a defense of the zoning issue and that,further,decisions regarding zoning and'licensing are necessarily separate.There are more details vdiich could be offered here but can best be covered by a sanple summary.Through his own ignorance,Richard MacEachem over extended himself and violated zoning.In the interest of basic ccnt>assion and synpathy both Joseph Daluz and .1 offered our advice and attempted to help with vtotever guidance we could give.He failed in Ms application because he had not conformed to the circumstances vMch would allow a special permit to be M E M O R A N D U M Aijgust 19,1982 - 2 -Robert9nd.thAugiist19,1982grantedandbecausehemisrepresentedtheccnpleteuseofthebam.Thiscan-plaintislargelyafurthermisr^resentationv^chIcanonlyinterpretasdeliberate.Iwouldinvitethestatementscontainedinthisccnplainttobemadeunderoathsothattheycouldbepaxeecutedasperjury.cc:BoardofSelectmen I town of barnstable ThotBAP F.Cellcr l.lccn«inA Agent 775-1120 tlCENSE ^PpLlCATlOy (PlcAAA bear do%m h«rd) amt of AppltciM>t;/Mw\Jie--«--«--t f>9cL ennAnent AddreiAS ^J'y-ef Ui . M>c«of Birth;»>/i»^«v+o^x J ._^^_K»w PencwAl;elephone:^7 S^"S"«3 B/B/A ype of Llcenee:DatA Submitted;*1— Ajse of MAnAtter;^ ermAnent Addreee;ti "Cw ocaI AddrcBs;K A Wt Iac";'^f Birtb; elephone:(homel__. pc.tlon of l.u^ln>--:/>.o...^.rA M<YWW>H>^h BusineAA:^o//^/A^rlr/rS -operty Ovnor*K-m;tWlAtjigg-e »-<•*tUff t^rA er idre Other flanniAhlo euhetenceeT (epeclfy)I gaa used? f new llcenee-etete dete of propo.ed opening Thl.fore.B«.t h-eoo»leted .t lee.t '-"^y-on.<^1).pprovel until -11 nee-icenee.Thle .ppllc.tlon will not he kll c«r!^rout during the twenty-one C21) .eery In.pectlone -re completed.t„be llcen.ed -re not reedy for Inepect; n;':hri;;ro;rf-*t:Tue'Mlgt'offU^THE FKEHX5ES Igneture of Apollcnnt^ icenee Fee; UILDING:, LimBING: IRE DEFT: ICENSING AGENT: >/C>.1 Bate Fald:, n\TE: lATE: INSPECTORS APPROVAL OAIT: r\S: BOARD OF HEALTH: lATE: B\TE: DATE: DATE: DATE:LICENSE GRANTED:DENIED: .._rn.ti1dlnft Inspector)CAnArv:-(HeBlth Department) .pcAtiqn .io,f„i5bu.«jT>.r55* •j>qc',tor«^^^ mmm "1^;..-.V 87 -"'•"•-'•r-.T^-i.'-'.T'^-v .V.•••-•.--C,-., ^"''*''*^'*"^*'*'*•'•"•'•*•«lv .'^ -..'f r —r-t -r-',.-—-•^-• -:i-'r'l'C'-V^VVV ,5 !rA-;4-?ri,;V?^: .:W .. ^tJ •;^.vr-:.< •'' h <^•..7-^ 'im/: JUNK DEALER^S LICENSE XJcen^No ._^....™_— Name Addres Date of Dale of Expiration ^.'^.....*.....M.s<... FORM aee hobbs a wabren.inc. •-•>...'r_;;i;'-.^ . •*f i RICHARD N.ROUGEAU WILLIAM F.BUTLER,III RICHARD P.LARGAY Rougeau.Butler 8c Largay COUNSELLORS AT LAW ONE WINTER STREET POST OFFICE BOX 608 HYANNIS,MASSACHUSETTS 02601 (617)771-4230 August 4,1982 Joseph D.DaLuz Building Commissioner Town of Barnstable Barnstable Town Offices South Street Hyannis,MA 02601 Re:Richard G.MacEachern 1000 West Barnstable Road Dear Joe: This is to advise that I represent Richard MacEachern and as of yesterday I have filed an appeal in the form of a Complaint in the Superior Court,a copy of which I have herewith enclosed for your review.This complaint is in the nature of an appeal of the decision of the zoning board of appeals' denial of Mr.MacEachern's request for a special permit During the pendency of this litigation,I would ask that you withhold any positive actions on behalf of the Town in attempting to close Mr.and Mrs.MacEachern's operation of "Ages Aloft." Thank you for your consideration. RNR:mal enclosure Very truly yours. 2^- Richard N.Rougeau OF COUNSEL ED WJLHITE Joseph Dv^DaLuxi telephonei 775.1120 Building Co/nmisdoner EXT.107 TOWN OF BARNSTABLE BUILDING INSPECTOR TOWN OFFICE BUILDING HYANNIS,MASS.02601 July 29,1982 Richard &Maureen MacEachem 1000 Ostervilie-West Bamstable Road Marstons Mills,MA. RE:Appeal #1982-44 Dear Mr,&Mrs.MacEachem: I am in receipt of the Board of Appeals decision in case #1982-44. dated July 15,1982.Your request for a Special Permit.to allow an antique shop at 1000 Osterville-West Bamstable Road, Marstons Mills has been denied. In light of that decision,as the enforcing officer,I must direct that.said operation cease.and the merchandise.be removed by August 6, 1982.In order to avoid any litigation the August 6th date must be ad hered to. Should you have any questions,please call this office. Peace, JDD/gr cc:Board of Appeals Town Counsel oseph D.Dalaiz Building Commissioner -"arnSle'Iss.town of BARNSTABLE^ '8i!JUI 15 PH3 15 Zoning Board of Appeals Waureeu-MacEacliexn Property Owner -Maur.e.en MacEachaxn.. Petitioner Deed duly recorded in the County Registry of Deeds in Book Pase —-Registry Appeal No.J.9.82t::A4 District of the Land Court Certificate No. Book Page 19 82 PACTS and DECISION Petitioner Maur.e-e-RJSL..Ri.c,har.d..NacEacherji filed petition on Jnnp-2.19 82 . requesting a variance-permit for premises at liQQ.0.—Qat.e.i;y.iH.er.WjL-.JRacns.tahle_JL^.in the village (Street) Marstons Mills ,adjoining premises of (see attached list) Locus under consideration:Barnstable Assessor's Map no lot no. Petition for Special Permit:® Application for Variance:•made under Sec.of the Town of Barnstable Zoning by-laws and Sec. —- for the purpose of Sp.acial-.Eamil:..-ta-.allo Chapter 40A., Mass. Gen.Laws .an.ti.qna...slio.p.-.u.sG^ Locus is presently zoned in Re§.i.d§n.c„?„.P.ii.... Notice of this hearing was given by mail,postage prepaid,to all persons deemed affected and by publishing InBamstable Patriot newspaper published in Town of Barnstable a copy of which is attached to the record of these proceedings filed with Town Clerk. A public hearing by the Board of Appeals of the Town of Barnstable was held at the Town Office Building,Hyannis,Mass.,at —S:.15 USSSX P.M.J.xjii£..,2.4 —_1982 , upon said petition under zoning by-laws. Present at the hearing were the following members: Luke P.Lally Frank P.Congdon ..Helen....Uir.tanen. Chairman and petitions fora SPECIAL PERMIT to allow CONSTRUCTION OF ADDI TION TO EXISTING AUTO MOTIVE AND MARINE ELECTRI CAL BUSINESS BUILDING at WEST BARNSTABLE ROAD, OSTERVILLE in a RESIDENCE C ZONING DISTRICT. A public hearing will be held onthis petition at 7:30 p.m. APPEAL NO.1982-42 7:45 P.M. ROSE ANN MCEVOY has appeal ed to the ZONING BOARD OF AP PEALS and petitions for a SPECIAL PERMIT to allow INSTALLATION OF ARTS AND CRAFT SHOP in EX ISTING BUILDING at PLEASANT STREET,HYANNIS in a RESIDENCE B-1 ZONING DISTRICT. Apublichearing will beheldon this petition at 7:45 p.m. APPEAL NO.1982-43 8:00 P.M. JAMES E.LOWTHERS has ap pealed to the ZONING BOARD OF APPEALS and petitions for a VARIANCE to allow MAINTENANCE OF EXISTING DWELLING AND GARAGE NOT IN CONFORMITY with WIDTH AND SETBACK REQUIREMENTS at 21 MAPLE AVENUE.HYANNIS in a RESIDENCE B ZONING DISTRICT. A public hearing will be held on this petition at 8:00 p.m. APPEAL NO.1982-44 8:15 P.M. MAUREEN MACEACHERN has appealed to the ZONING BOARD OF APPEALS and petitions for a SPECIAL PERMIT to allow AN TIQUE SHOP at 1000 OSTERVILLE- WEST BARNSTABLE ROAD, MARSTONS MILLS in a RESIDENCE F ZONING DISTRICT. A public hearing will be held on this petition at 8:15 p.m. APPEAL NO.1982-45 8:30 P.M. CORNERSTONE ENTERPRISES, INC. has appealed to the ZONING BOARD OF APPEALS from a DECI SION OF THE BUILDlflG INSPEC TOR and petitions for CHANGE OF RETAIL STORES TO THREE OF FICES at MAIN STREET,CENTER- VILLE in a RESIDENCE D-1 ZON ING DISTRICT. A public hearing will be held on this petition at 8:30 p.ml These hearings will be held in the HEARING ROOM,TOWN HALL. 367 MAIN STREET, HYANNIS on THURSDAY EVENING, JUNE 24, 1982. You are invited to be present. By orderofthe Zoning Board of Appeals. FRANKP.CONGDON,Clerk June3.10,1982 Bamstable Patriot At"the conclusion of the hearing,the Board took said petition under advisement.A view of the l6a]&was made by the Board. Appeal No —Page of 2- On 19 -i2., The Board of Appeals found Richard MacEachem,husband of the petitioner,presented his application before the Board and explained that he had purchased his property at 1000 Osterville-West Bamstable Rd.,Marstons Mills in November of 1981.The locus comprises 28,807 sq.ft.of land and is in an RF zone which requires a minimum lot size of one-acre.This is a legally,non-conforming lot and the petitioner stated that there were pigs raised on the premises at one time by a former owner.Mr,MacEachern was issued a junk dealer's license by the Selectmen's office and opened his antique shop unaware that zoning required a special permit for home occupation use in an RF zone.He had purchased a building that was about to be bulldozed in Osterville and had it moved to the locus.The building has had extensive remodelling.The petitioner received a letter from the building inspector informing him that he was in violation of the zoning by-laws.A second mortgage was taken out on the property in anticipation of the antique shop use and Mr.MacEachem said that he would suffer severe financial hardship if he is not allowed to conduct his antique shop business.All sales are made from the garage which is attached to his house and the separate bam type building is used for the storage of antiques.The petitioner presented a letter from abutters stating that they had no objection to the antique shop use. Atty.Robert Bianchi represented the Thomas family whose residence is across the street from the MacEachem property.The Thomas family has no objection to the petition for a special permit provided that there is no expansion of the use from its current operation and there is some clarification from the Board that this antique shop use will run with the petitioner and no one else. Mrs.Jean Whiteley asked how the permit issued from the Selectmen's office prior to the Zoning Board of Appeals issuance of a special permit for the antique shop use.Chairman Lally explained that the issuance of the license from the Selectmen's office did not exempt the petitioner from complying with zoning requirements.Nestor Silva questioned the issuance of the license prior to input from the various town departments.The building inspector,Joseph DaLuz explained that questionnaires are sent to the various town departments (cont.) Clerk of the Town of Bamstable,BamstableI, County,Massachusetts,hereby certify that twenty (20)days have elapsed since the Board of Appeals rendered its decision in the above entitled petition and that no appeal of said decision has been filed in the office of the Town Clerk. Signed and Sealed this penalties of perjury. Distribution:— Property Owner Town Clerk Applicant Persons interested Building Inspector Public Information Board of Appeals day of „19 Board of Appeals Town of Bamstable By Chairman under the pains and ZONING BOARD OF APPEALS Appeal No.1982-44 Page 3 of 3 with a 21-day period,allowed for a reply.In this case,the license was issued by the Selectmen's office prior to a response from the building inspector indicating that the use did not comply with-zoning..Judith French of Mardtons Mills asked that the Board treat the petitioner as though he had not already begun his business operation and that his financial hardship should not be a factor in their decision.The impact of this business in a residential neighbor hood should be the Board's primary consideration.Kevin Malloly and Carolyn Garber were concerned that this matter could happen again and that the Selectmen might issue a license prior to a hearing by the Board.No one spoke in favor of the petition. The Chairman advised that the property would be viewed,the matter was taken under advisement and the hearing closed. The Board found that the petitioner's application is for a special permit to allow antique shop use in a residence F zoned district.Home occupation use under Sec.P. (18) and Sec.I.(12)requires that"the use of the dwelling unit for the home occupation shall be clearly incidental and subordinate to its use for residential purposes by its occupantsj and not. more than 400 square feet of the dwelling unit shall be used in the conduct of the home occupation";and that "no traffic shall be generated by such home occupation in greater volumes than would normally be expected in a residential neighborhood, and any need for parking generated by the conduct of such home occupation shall be met off the street and other than in a required front yard".An on-site inspection by Board member Frank P.Congdon revealed that there are show cases in the bam-type building which is separate from the petitioner's dwelling.Board member Helen Wirtanen found that the home occupation use must be conducted in the dwelling unit and the petitioner does not fulfill this requirement.Chairman Luke Lally found that the building permit issued for the bam-type building which was moved to the premises did not indicate that its use would be for an antique shop.The Board voted unanimously to deny the petitioner's application for.a special permit since the requirements of Sec.I.C12)have not been met.The petitioner's application should have been filed for a variance and the Board finds that it would be difficult if not impossible for the petitioner to show variance conditions at this location.In addition,the Board requests that the building inspector,who is the zoning enforcing officer, follow—up on this violation at the earliest possible time so that the illegal use of this site will be terminated. ZONING BOARD OF APPEALS PARTIES IM IMTEREST - APPEAL NO.1982-44 -MAUREEN MACEACHERN Boukllas,Nicholas James Brooks Cadletjx,Nora P. Elmore,Marie G. Gady,Richard E. Parker,David K. Souza,Edward F. Arthur W.Spencer Stafford,Robert S. Thomas,Sara et al Trfiifton,Hilda Bams table Planning Board Yarmouth Planning Board Sandwich Planning Board Mashpee Planning Board XITd232Xmom^.•SENDER:Completeitems1,2,3,andAddyouraddressinthe"RETURNTO-'spaceonreverse.(CONSULTPOSTMASTER FOR FEES)1.The following service isrequested(check one).OShowtowhomanddatedeliveredQShowtowhom,date,andaddressofdelivery..2.nRESTRICTEDDELIVERY{The restricted deliveryfee it charged in addition tothe returnreceiptfee.)TOTAL^3.ARTICieADDRESSEDTO:(—C9Richard&MaureenMacEachem1000Ostervilie-WestBamstablel|dMarstonsMills.MAA.TYPEOFSERVICE:• registered •insured•certified•coo•expressmailARTICLENUMBERP253896231(Alwaysobtainsignatureofaddresseeoragent)1havereceivedthearticledescribedabove.SIGNATURE0A^re-ssjCj•Authorize^gentDATEOFDELIVEB'/6.ADDMSSc^SADDRESS{OnlyifrTquerttif)7.UNABLETOCEUVERBECAUSE:POSTMARK7a.EUPLOYEE'SINITIALS Jqseph d:DaLuz ^lliiing Commhiicner TOWN OF BARNSTABLE BurLDING INSPECTOR TOWN OFFICE BUILDING HYANNIS,MASS.02601 May 20,1982 TELEPHONE!778.1120 EXT.107 Mr.Richard MacEachem P.0,Box 33 Marstons Mills,MA. Re: 1000 Osterville-West Bamstable Road,Marstons Mills Dear Mr,MacEachem: .-On November.17,1981 a building .permit was issued to you to move a building to 1000 Osterville-West Bamstable Road to be used as a bam. Recently I received an application from.Maureen MacEachem for a "Junk Dealers"license for the above location. Please be advised that your property is located in a Residence F zoning district and this type of operation is not permitted.In light of what appears to.be a zoning violation,I must order that the operation cease immediately unless you have obtained approval from the Board of Appeals. Should you have any questions,I will be available at my office. JDD/gr cc:Board of Appeals Board of Selectmen Peace, •iph D.DaLuz V-^uilding Commissioner UjJlU/l^ TOWN OF BARNSTABLE ThonAB F*Geller Liceniiing Agent 775-1120 5/13/82 DOES NOT CONFORM TO ZONINGLICENSE/»FPLICAT10W (PleAftt bemr down hard) Name of AppXlcftnt:/i^rt\J e k Permanent Addreee:/oOf ^J'-/f='ir'o »))^-j >.!ViH rS4-d HS VMf>^C.X— Pl^ce of Birth;^y4G(W>K y--; Telephone s ^2 Sr"~S'^J"3~Wew; p/B/A Type of License;'y/ Name of Manager; Permanent Address;^ Local Address;.ST ^"g Place of Birth; Renewal: Date Submitted; Telephone;(home)Business;/v-f f ^etl"b//>• Location of buBine*?^;/.j o.-y O i-(r <i (I HT^jr-Ay':'/j-j Property Owners N^^'me;FU;-g 4 4 y Address;5'M '"^--v--g —. 4 1 KLcf '?/ Is gss used?/V Other flammable substances?(specify) If new license-state date of proposed opening;•^ This form must bo completed at least twenty-one (21)days prior to the effective date of license.This application will not be forwarded to the Selectmen for approval until all nec essary inspections are completed.Inspections will be carried out during the twenty-one (21) days prior t,o the effective date,and if the premises to be licensed are not ready for inspection the issuance of any license will be delayed pending re-inspection at the convenience of the inspectors.Applicants must contact the Building Inspectors Office,th^*Board of Health Office and the appropriate Fire District Office to schedule inspr^ctlons. NO BUSINESS MAY OPERATE WITHOUT A VALID LICENSE ON THE PREMISES Signature of Applicant: License Fee;Date Paid; 'V -/-j /.... BUILDING;NOT APPROVED PLUMBING: INSPECTORS APPROVAL DATE;WIRE: DATE;GAS: DATE; DATE: FIRE DEPT;DATE!BOARD OF HEALTH: LICENSING AGENT: Whltej-(Selectinen)Cr««n;-(Bulldln«Inspector)Canary:-(Health Department) Plnk:-(Flre Department)Gold:-(Applicant) DATE:LICENSE GRANTED:DENIED: DATE; DATE: May 20,1982 Mr.Richard MacEacbem P.0.Box 33 Marstons Mills,MA Re: 1000 Osterville-West Bams table Road,Marst(»is Mills Dear Mr.MacEachem: On November 17,1981 a building permit x^ras issued to you djo move a building to 1000 Osterville-^vest Bams table Road to be used as a bam. Recently I received an application from Maureen MacEachem for a "Junk Dealers"license for the above location. Please be advised that your property is located in a Residence F zoning district and this type of operation is not permitted. In light^ of xdiat appears to be a zoning violation,I must order that the operation cease imm^iately unless you have obtained approval from the Board of Appeals. Should you have any questions,I x^ll be available at my office. Peace, JDD/gr cc:Board of Appeals Board of Selectn«n Joseph D.DaLuz Building Ccnsnissioner 0CMO3WEAL1HCBPMASSACHUSETTSBARNSTABI£,ss:MAUREENEAC3IEEN,-^vs-Plaintiff,lUKEP.LALUf,FRANKP.OCNGDON,andHEtfNWIKEANEN^astheyarenorbersoftheBOARDCFAPPEALSfor'^eTOWNCFBARNSTABIE,Defendants.SUPERIOR_C.A.No.E235©L?tfc'ifL_TOWNOFBABWSTABLEboardof appealsANSWERSEP131982TOieDefendantsin the above-entitled actionherebyrespondto thePlain-tiff'sQirplaintasfollows:1)Neitheradmitnordenythe allegations inparagraph"1"of theOoiplaint.2)DENYthe allegations inparagraph"2"of theOcnplaint.3)ADMITtheallegatiaisinparagraph"3"of theOcnplaint.4)ADMITtheallegationsinpragraph"4"of theOcnplaint,but infurtheranswering,saythat thepermitissuedbytheBuildingInspectorauthorizing aseparatebarn-typestructurewasccHisistentwiththezoningbylawoftheTownofBamstableasbeingaccessorytothe single-familyresidenceusepermittedin theResidenceFdistrictinvhiohthesxabjectlandislocated,withoutthe specialpermitforhomeoccipationusev^dithePlaintiffsou^tbeforetheBoardofJi^peals.5)Inanswertoparagraph "5"oftheOcnplaint,Defendantsstatethattheapplicationfor ajunkdealer'slicense,or the granting ofsame,isnotrelevanttotheapplicationofthezoningbylaw.*6)Inanswertoparagrajh"6"oftheOcnplaint,Defentotsrepeattheiran^fi^ertoparagr^h"5"oftheOcnplaint,above,andfurtherDENYthattherespectivetovaiofficialsmentionedinparagraph "6" of theOcnplaintinspectedthe subject premisespriortothejunkdealer'slicensebeing issued; thePlaintiff'shusband,RichardMacEachem,applied forandthesairedayreceived •.•-2-thelicenseattheOfficeoftheSelectmenpriortotheinspecticaishavingbeenmade.7)Inanswertoparagraph"7"oftheOcnplaint/theDefendantsrepeattheiranswertoparagr^h"5"oftiieOcxtplaint,above,butAEMTTthatPlaintiffwasissueda junkdealer'slicensebytheSelectmenenJ^ril5,1982.8)Inanswertoparagraph"8"oftheOcirplaint,theDefendantsrepeattheiranswertoparagraph"5"oftheOcnplaint,above,andfurtheranswerthatthePlaintiiffhad nori^ttorelycn anyassunptionshemayhavemadewithiBSpecttotheinternaladministrativeproceduresofTownofficersandagents.9)Inanswertoparagraph"9"oftheOcnplaint,theDefendantsrepeattheiranswertojjaragr^h"8"oftheOcnplaint,above,andstatethatthey canneitheradmit nordenywhetherPlaintiffobtaineda loanorvhatitstermswere,10)ADMITtheallegationsinp>aragraph"10"oftheOcnplaint.11)ADMITtheallegationsinparagraph"11"oftheOcnplaint.12)Inanswertoparagraph"12"oftheOcnplaint,Defendantssaythatthemeetingmentionedthereinwasattherequestof thePlaintiff'shusband,RichardMacEachem.13)DENYtheallegationsinparagraph"13"oftheOcnplaint.14)HRMVtheciUegaticnsinp)aragraph "14"oftheOcnplaint.15)Inanswertoparagraph"15"oftheOcnplaint,theDefendantsADMITthatthePlaintiffappliedtotheBamstableZoningBoardofAppealsforaspeciali)eimittooperate an antiqueshopunder SectionI,paragraph12 of theTown'szoningbylaw,andthatahearingwasheldcnthatapplicationon June241982.DefendantsfurtheranswerthatPlaintiffhadnorighttorelyontherepresentationsmentionedinparagraph"15"ofherOcnplaint,evenifthey hadbeenmade,\hichDefendantsagainDENY.'.-16)AEMlt*theallegationsinparagraph"16"oftheOcnplaint.17)Inanswertoparagr^h"17"oftheOcnplaint,Defendantssaythatitisaconclusionoflaw. -3- 18)DENY the edlegaticns in paragre^"18"of the Cfcirplaint. And further answering,the Defendants state the following: 19)The plaintiff's subject property is located in a Rssidenoe F district of the Tcpwn of Ramstable. 20)Uie uses permitted in a Rssidenoe F district,under Section I., paragzc^h 8 of the Bamstabie zoning bylaw are as follows: "8.Residence F District. a.Detached one family dwelling. b.Professional or home occupation use.See Paragraph 12 for definition. c.Renting of rocms for not more than six (6)lodgers by a • family resident in the dwelling." 21)Section I,paragraph 12 of the Bamstabie zoning bylaw, mentioned in Section I,paragraph 8,above,provides as follows: "12.Ihe Iterm "Professicxial or home occupation use"as used in Paragraj^s 4 and 8 above shall be limited as follows: a.No more than one nonresident shall be enployed therein. b.The use of the dwelling unit for the home occupation shall be clecirly incidental and subordinate to its use for residential purposes by its occupants,and not more than 400 square feet of the dwelling unit shall be used in the conduct of the hcxne occupation. d.There shall be no change in the outside ajpearanoe of the building or premises or other visible evidence of the con duct of such home occupation other than caie (1)sign,not exceeding two (2)square feet in area,non-illuminat^,and mounted:,flat against the wall of the principal burlding, carrying only the occupant's'name and his occupation. e.The buildings or premises occupied shall Jiot be rendered objectionable or detrimental to the residential character of the neighborhood due to the use,exterior appe^anoe, emission of odor,gas,smoke,dust,noise,electrical disturbance,or in any other way. f.No traffic shall be generated by such home occupation in greater volumes than would nomally be esqpected in a resi dential neic^iborhood,and any need for parking generated by the conduct of such home occupation shall be met off the / -4- street and other than in a required front yard. g.Ohe above use shall be subject to the granting of a ^cial Permit by the Board of T^^peals." 22)Plaintiff admits,in paragr^h "4"of the Ocnplaint,that she caused a "separate bam-type structure"to be moved onto the premises,clearly causing a "change in the outside appearance of the premises" as prohibited by subpara- graph 'd.•of Section I.,paragraph 12 of the zoning bylaw,above. 23)Plaintiff's application for the peimit to move the bam-type struc ture onto the locus,a copy of vjhich is attached hereto and narked "Exhibit A", states that the floor area of the building is 600 Sq.Ft.,well in excess of the limit of 400 Sq.Ft.contained in s\±paragraph 'b.'of Section I.,paragraph 12 of the zoning bylaw,above. 24)Subparagraph 'b.'of Section I.,paragraph 12,does not allow hare occupation uses in a structure separate frcm the dwelling unit. 24) The use as carried on by Plaintiff is not "clearly incidental and subordinate to"the residential use,as required by subparagraph 'b.•of Section I.,paragraph 12 of the zoning bylaw,above. 25)Plaintiff's relief,if any, before the Board of appeals,was by way o: application for a variance rather than a special permit,because of the inability of the buildings,the property and the use to conform to the zoning bylaw,as set forth above. WHEREPOPE,your Defendants respectfully pray this honorable Court: (1)To affirm the decision of the Bamstable Zoning Board of Appeals denying a special peimit to the Plaintiff. (2) To permanently enjoin the plaintiff frcm operating any business at the locus. (3) Pending a hearing on the merits,to tenporarily restrain the Plaintiff from operating any business at the locus. (4) To assess costs against the Plaintiff. -5- (5)Such other relief as the Ocurt deeras just and equitable. Dated:August 18,1982. niKE P.lAUif,FRRNK P.OGNGDCN and HELEN WIR1ANE34,as they are mernbers of the BOARD CF APPEALS for the TOWN OF BARNSTABIE,Defendants By their Attorn^, TO:RICHARD N.ROOGEAU,ESQ. Attorney for Plaintiff RDOSEAU,BUTLER &lARGAif one Winter Street,'P.O.Box 608 I^annis,Ma.02601 (617)771-4230 D.Smith,Esq., Town of Bamstable 367 Main Street,New Tcwn Hall Hyannis,Ma.02601 (617)775-1120 CERTIFICATE CF SERVICE Bamstable,*ss: Tcwn August 18,1982. I,KBEST D.SMira,ESQ.,Town Oounsel and Attorney for the Town of Bamstable,her^certi^_under the pains and penalties of perjury,^t I to be served by first-class mailing,postage prepaid,a copy or ^ Cefendants'Answer bo the Plaintiff's Qmplaintj vpcn the attorney for tte Plaintiff herein,Richard N.Rougeau,Esq.,at his address at P.O.Box bUB, Hyannis,te.02601,on the day and year.first above written. D.Smith,Esq.,Tcwn Counsel, Tcwn of Bamstable Isnnd'J...r..I.tj."J*--3-fyzy'^icitr.xv.;.j2rermit,/^''1/*fII'ousenumhar(f//*/^it'(—ATOWNOF..BARNSTABLE••/C)ffyjjf['8njspfie-KB./#*1'*./.:MICAViONI(-RI,.;/,-.ii'Vo~l..^..._,""''•.v•»^c;-f-Iv':iijiYifCf-l.t'/-•'-••:L}:f./...uLQ.....TOTMEIWSPFCTOROFDUIIDINGS:Tl.ei..-,A.,rIsr,cdI.or,byo.oplicsforopermitoccordingtotl.efollov.ingir.fo,...olion:''•••--••riopoiorfl.'';e77o;.mgDblricl:IfictIt-VmoofC.v„.irAddressof/-N'cnieofE'Jilo'er*r-.'c-iiicofAjcfiitecf^.''.'^ib^irofRocrnsCxic-riorors..Ao'dress.....AcMrcss.....rour.c'olion.Roofing,IfiJ'rrior..riu::.!Tlngt<--....i.rig•'ore19...'e'"ost.....1?....7..vT;.^^. •/I;fj•.'^roiiiof lot1;...^r;..'I.*!,Tgwitht?iio.:i;:!•.ns../.-!J..LisO-^i2s:_l^j:..CVALOi*JiOAk'DOF/"rA.o..f.19..:......i';! ROUGEAU.BUTLER a LARGAY COUNSELLORS AT LAW ONE WINTER STREET P.O.BOX 008 HYANNIS.MASS.02001 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE,SS MAUREEN MacEACHERN, Plaintiff ) COMPLAINT V. LUKE P.LALLY,FRANK P.CONGDON and HELEN WIRTANEN as they are members of the Board of Appeals for the Town of Barnstable, Defendants SUPERIOR COURT CIVIL ACTION NO Now comes the plaintiff in the above-entitled matter and states: 1.The plaintiff is the owner of property located at 1000 Osterville-West Barnstable Road in Marstons Mills,Massachusetts, shown on the assessor's map as M124 -Lot 44. 2.The plaintiff is aggrieved within the meaning of G.L. Chapter 40A,Section 17 by the decision of the Board of Appeals of the Town of Barnstable in its refusal to grant them a special permit to run an antique shop business on their own premises. 3.The defendants Luke P.Lally,Frank P.Congdon,and Helen Wirtanen are the duly constituted and regular members of the Board of Appeals of the Town of Barnstable,and all reside in the Town of Barnstable as follows: Luke P.Lally Washington Avenue Osterville,MA Frank P.Congdon 139 Warwich Way Centerville,MA Helen Wirtanen 1866 Main Street West Barnstable,MA ROUGEAU,BUTLER a URGAY COUNSELLORS AT LAW ONK WINTER STREET P.O.BOX SOS HYANNIS.MASS.02601 •«'7I 771.4230 -2- 4.That the plaintiff purchased property at the Marstons Mills location in November of 1981,which property had a dwelling thereon.The plaintiff then purchased a separate barn-type structure in Osterville and had it moved to the locus,all with the permission of the building inspector's office of the Town of Barnstable. 5.The plaintiff then applied for a junk dealer's license to run an antique shop on the property and in doing so informed the selectmen's office of the Town of Barnstable that the barn was intended to be used as part of the business for storage and display of saleable items. 6.Prior to the issuance of the junk dealer's license,the selectmen's office notified several Town of Barnstable departments of the plaintiff's license request and these departments sent representatives who inspected the buildings and spoke with the plaintiff's husband,Richard MacEachern.On the scene were: (a)The Health Department,whose representative told Mr.MacEachern that so long as people could use the bathroom facilities within his home,there was no objection; (b)The Fire Department,whose representative,Mr.Souza, said that use of the barn for storage and display purposes was acceptable so long as no flammable material was stored there and if fire extinguishers were to be provided. (c)The assistant building inspector,who viewed the buildings,including the barn,and said he was going to approve ROUGEAU.BUTLER a LARGAY COUNSELLORS AT LAW ONE WINTER STREET P.O.BOX ooa HYANNIS.MASS.020OI •'71.4J30 -3- of the license request. 7.The plaintiff was issued a junk dealer's license on April 5,1982 by the selectmen's office of the Town of Barnstable. 8.The plaintiff had knowledge of the selectmen's procedure in checking with the various town boards and agencies prior to issuance of a license of the type requested. More particularly,the plaintiff knew the building inspector's office was contacted and that the selectmen depended upon the building inspector's office to check zoning regulations prior to the issuance of junk dealers'licenses. 9.The plaintiff placed her reliance upon the selectmen of the Town of Barnstable once the license was issued in that she obtained a loan from Commercial Credit Plan,Inc.in the amount of $3,644.53 for five years at a rate of interest of 19.90 per cent,per year for the purpose of starting her business. 10.The plaintiff then immediately engaged in the business of running an antique store at the location and continues to do so. 11.The plaintiff was notified in a letter from the building inspector's office,dated May 20,1982,that she was in violations of zoning. 12.Shortly after receiving said notice,the plaintiff's husband,Richard MacEachern,was asked to meet with the building inspector,Joseph Daluz,and Jeffrey Parker,the administrative assistant to the Town of Barnstable,to discuss the zoning problem, ROUGEAU.BUTLER a LARGAY COUNSELLORS AT LAW ONE WINTER STREET P.O.BOX SOS HYANNIS,MASS.OaSOl -4- The plaintiff's husband,Richard MacEachern,participated in such a meeting and explained the use of his wife's property,including the use of the barn for storage and display of merchandise. 13.At this meeting Richard MacEachern,plaintiffs husband, was told by Mr.Parker,that the selectmen had made a mistake in issuing the license without awaiting approval from the building inspector's office.To save embarrassment for the selectmen,the plaintiff (through her husband)was asked by Jeffrey Parker to file a request for a special permit and to word it in such a way as to list the barn as for storage only. 14.The suggestion was made by the building inspector and the administrative assistant to the selectmen that the special permit would be allowed and that the plaintiff could operate her business as before.It was further suggested by the town official that the plaintiff would be better off presenting the matter before the Board of Appeals without an attorney,but with the support of the building inspector and Mr.Jeffrey Parker,ad ministrative assistant." 15.The plaintiff relied upon all of these representations and went before the Board of Appeals on June 24,1982. 16.The plaintiff was denied her permit by the Board of Appeals in a three page opinion filed with the town clerk on July 15i,1982. 17.Said opinion is defective because it is beyond the authority of the Board of Appeals.The opinion is arbitrary. ROUGEAU,BUTLER &LARGAY COUNSELLORS AT UW ONE WINTER STREET P.O.BOX SOS HYANNIS.MASS.OZSOI 77I.4230 -5- capricious,and whimsical. 18.The defendants acted with gross negligence,in bad faith,and with malice. I'THEREFORE,the plaintiff prays that the decision of the Board of Appeals be annulled and that this Honorable Court order the following equitable relief: That a special permit be granted the plaintiff as requested and such other equitable relief as this Court deems to be proper including costs,if it finds that the defendants acted with gross negligence,in bad faith,or with malice. Respectfully submitted. The Plaintiff,Maureen MacEachern, by her attorney Richard N.Rougeau ROUGEAU,BUTLER &LARGAY One Winter Street P.O.Box 608 Hyannis,MA 02601 Telephone:771-4230 '—:ADII0T ADI C 'M AfC -r a Tr\ii»fi^fABLE:H/isX:^OWN OF BARNSTABtE 3^' fev-toWii Zoning Bo:.'of Appeals "'h^Jlli.lr>PH3 id Ma.ur.eeaJila£:Eachex.n. Properly Own^ >...Maur.een«JilajcEacJherii ^ Petitioner Appeal N-<».JL9BZ—A4.. i)«eil (Inly recorded in the CouMly liej^istry of Deeds in Book - Page Registry District of the Land (Jourt Certificate No. Bool;Page ..._..J.uIy.„.Il 19 82 FACTS and DECISION Petitioner MaureenJSt....Rlc.h.ai.di...Ha.cEachern filed petition on J.unfi-.2...._....19 82 . reouestin"a variance-permit for premises at AO.Q.O...,.O.S.t^l3/.iJ.Xant.W.*....3.a.ElllS.tab.la.-R.^an the \illage"(Street) _Marstons Mills adjoining |ircmisc.>of <see atiuehcd list) Locus under consideration :Barnstablc Assessor s Map no lot no. Petition for Special Permit :0 Application for Variance:•made under Sec.of the Town of Barnstablc i Zoning by-laws and See..-5-.-Qf.—.. for the purpose of Locus is presently zoned in~-~.— Chapter 40A., Mass. Gen.Laws i...aiiti.que~.shop.~.u«€h. Notice of this hearing was given hy mail,postage prepaid,to all persons deemed affected and hy publishing la Bairns table Patriot newspaper publi-sltcd in Town of Barnstablc a copy of which is attached to the record of these proceedings filed with Town Glerk. A public hearing by the Board of Appeals of the Towji of Barnsiable was held at Uie Tow^ Office Building.Hyannis,Mass.,at.—fiilS ^XXXX P.M.J.un.e...24 —1982 , upon said petition under soning by-laws. Present at the hearing were the following members: Luke P.Lallv Frank P,CQngdop •HpTpti Wirtanpn. Chairman ^conclusion of the hearing,the Bowd took said petiMon under adviscmeiit.A view of the locus was made by the Board. Appeal No W[32iZ.b.!i.Page —2 of —^ 1!).82 The Board of Appeals found Richard MacEachern,husband of the petitioner,presented his application before the Board and explained that he had purchased his property at 1000 Osterville-West Bamstable Rd.,Marstons Mills in November of 1981.The locus comprises 28,80.7 sq.ft.of land and is in an RF zone which requires a minimum lot size of one-acre.This is a legally,non-conforming lot and the petitioner stated that there were pigs raised on the premises at one time by a former owner.Mr.MacEachern was issued a junk dealer's license by the Selectmen's office and opened his antique shop unaware that zoning required a special permit for home occupation use in an RF zone.He had purchased a building that was about to be bulldozed in Osterville and had it moved to the locus.The building has had extensive remodelling.The petitioner received a letter from the building inspector informing him that he was in violation of the zoning by-laws.A second mortgage was taken out on the property in anticipation of the antique shop use and Mr.MacEachern said that he would suffer severe financial hardship if he is not allowed to conduct his antique shop business.All sales are made from the garage which is attached to his house and the separate bam type building is used for the storage of antiques.The petitioner presented a letter from abutters stating that they had no objection to the antique shop use. Atty.Robert Bianchi represented the Thomas family whose residence is across the street from the MacEachern property.The Thomas family has no objection to the petition for a special permit provided that there is no expansion of the use from its current operation and there is some clarification from the Board that this antique shop use will run with the petitioner and^no one else. Mrs.Jean Whiteley asked how the permit issued from the Selectmen's office prior to the Zoning Board of Appeals issuance of a special permit for the antique shop use./Chairman Lally explained that the issuance of the license S®1^5from the Selectmen's office did not exempt the petitioner from complying with /filing requirements.Nestor Silva questioned the issuance of the license prior input from the various town departments.The building inspector,Joseph ^^^^uz explained that questionnaires are sent to the various town departments (cont.) a fp County,Massachusetts,hereby certify that twenty (2t)!days have elap.sed since,the Board of AppeMs rendered ite decision in the above,entitled pcfitiun sind that no appeal of .said decision has been filed in the office of the Town Clerk, Signed and Sealed this penalties of perjury. Distribution:— Property Owner Town Clerk Applicant Persons interested Building Inspector T'uhlic Tnfonnation dav of — Clerk of the Town of Bamstable,Barnstable lifjard of Appeals Town of Bamstable under the pains and *•-«f-^;iT"ZONINGBOARDOFAPPEALSAppealNo.1982-44Page3of3with a21-dayperiodallowedfor a reply. Inthiscase, thelicensewasissuedbytheSelectmen'sofficepriorto aresponsefromthe buildinginspectorindicatingthatthe use did notcomp?^ywith zoning.JudithFrenchofMarstonsMillsaskedthatthe Boardtreatthepetitioneras though he had notalreadybegunhisbusinessoperationandthat hisfinancialhardshipshouldnot be afactorintheirdecision.Theimpact ofthisbusinessinaresidentialneighborhoodshould be theBoard'sprimaryconsideration.KevinMalloly and Carolyn Garberwere concernedthatthismattercould happen again andthatthe Selectmen mightissue a licensepriorto a hearingbytheBoard.Noonespokein favor of thepetitionTheChairmanadvisedthatthepropertywouldbeviewed,thematterwastaken underadvisementandthehearingclosed.TheBoard foundthatthepetitioner'sapplicationisforaspecialpermittoallow antiqueshopuse in a residenc(j Fzoneddistrict.Homeoccupation useunder Sec. P. (18)andSec.I.(12)requiresthat"theuse of thedwellingunitfor thehomeoccupationshallbeclearlyincidentalandsubordinatetoitsuseforresidentialpurposesbyitsoccupants,andnotmorethan400squarefeet ofthedwellingunit shallbeusedin theconductofthehomeoccupation";andthat"notrafficshallbegeneratedbysuchhomeoccupationingreatervolumesthanwouldnormallybeexpectedin aresidentialneighborhood,andanyneedforparkinggeneratedbytheconductofsuchhomeoccupationshallbemetoffthestreetandotherthanin a required frontyard".Anon-siteinspectionbyBoardmemberFrankP.Congdonrevealedthat there areshowcasesinthebarn-typebuildingwhichisseparatefromthepetitioner'sdwelling.BoardmemberHelenWirtanenfoundthatthehomeoccupationusemustbeconductedin thedwellingunitandthepetitionerdoesnotfulfillthisrequirement.ChairmanLiikeLallyfoundthatthebuildingpermitissuedforthebarn-typebuildingwhichwasmovedto thepremisesdidnotindicatethatitsusewouldbe for anantiqueshop.TheBoardvotedunanimouslytodenythepetitioner'sapplication for a specialpermitsince therequirementsofSec.I.(12)havenotbeenmet.Thepetitioner'sapplicationshouldhavebeenfiledfor a varianceandtheBoardfindsthatitwouldbedifficultifnotimpossiblefor the petitioner toshowvarianceconditionsat this location. In addition,theBoardrequeststhat the building Inspector.whois thezoningenforcingofficer,follow-uponthisviolationat the"earliestpossibletimesothattheillegaluseofthissitewillbeterminated. /c.V 'V ~V , /'.i*s mcp ond *>t r.urul/er /.a k/-y/ Scwutje Permit number ^ House number H 'y- TOWN OF.-.BARNSTABTE APPLICATIOF>l FOR fPRMIT TO •HTE OF COUSTr:UCTICM4 .19,s r TO THE INSPECTOR OF BUILDINGS: The undersigned hereby applies for a permit orcoiding to ihe following infortnolion: /o i :<•.^rv./;/.;...I.rA..k.f:.f!r.....!".fS.....f.location Pjoposed L'se Zoning District District Norr.e of Owner Address ?.....9. Nome of Builder'Address Non.c of Architect Address ^•^•iI•.bc-r of Rooms Foundolion Exterior .Roofing ... r|,.^rs Interior ... ;:..f)tiTn".7.........P!'-i:..Tng . r?;.'ore : •\ •••.:':••;1 '.y r!,nnii:g i-crid ...;9 !.d'jroni of '.ot 'nd eiji'c.eng vriih Cirn^n;:--.e"iS L.(O-O C o "'OA 'pp.'0/;iri.o1e Cost c...'..V.-'...-: V \ !\l\/-I \\v if V • -\ 1 . '•'t. I •# / /; / '/• .-/• ...!IS \:.A ; .'.k ;• •// nji.'FCT VOw'.rPhOVAL OF BOAkD OF l-iEALTH h-c^p^ h i . \;5o' -!••\r r..-". f .'c I • JOSEPH>D.-DaLU2 TELEPHONEl 775-1120 Building Commissioner EXT. 107 TOWN OF BARNSTABLE BUILDING INSPECTOR TOWN OFFICE BUILDING HYANNIS.MASS.02601 TO:Robert D.Smith,Town Counsel FRCM:Joseph DaLuz,Building Commissioner RE:MacEachem,1000 Osterville-West Bamstable Road,Marstons Mills Bob: I catergorically deny the text of the statements in the complaint listed in numbers twelve (12),thirteen (13) and fourteen (14). Number six (6)of the complaint contradicts with the fact that the license was issued on the same day of application. Joseph D. DaLuz JDD/gr