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Home My WebLink About0500 HUCKINS NECK ROAD - Health 500 Huckins Neck Road Centerville A = 233 029 (I• UPC 12534 No.2_ 15__R St HASTINGS. MN I O i P `r oFIMEr Town of Barnstable Board of Health MUMSTABLE, MASS. 200 Main Street,Hyannis MA 02601 QED IJIA�A V1111:G. JVO'OUL-YVYY July 11, 2005 Ms. Dair Galo 500 Huckins Neck Road Centerville, MA 02632 Dear Ms. Galo, On June 14, 2005, you were present at a public hearing before the Board of Health concerning the number of bedrooms observed at your property located at 500 Huckins Neck Road, Centerville, MA. This property was inspected on May 13, 2005 by David Stanton, Health Inspector for the Town of Barnstable, because of several complaints. Eight bedrooms were observed at this property on May 13, 2005. There were six bedrooms observed on the main floor, along with a dining room which was being used as a bedroom. Also, there were two private rooms observed within the basement, one of these rooms was also being used as a bedroom. The basement was constructed without obtaining any building permits according to the Building Division records. The signed Conciliation Agreement under Title Vill of the Civil Rights Act of 1968 as amended by the Fair Housing Amendments Act of 1988 between the United States Department of Housing and Urban Development, Tranquility House, and the Town of Barnstable, dated January 16, 2004, limits this property to four (4) bedrooms maximum. Specifically, the Agreement states: "4. The Parties agree the reasonable accommodation (use of 6 bedrooms) granted to 500 Huckins Neck Road shall terminate if the property is not used for the Tranquility House program or a substantially similar program for persons with disabilities." According to Section 232-5 of the Barnstable Code, onsite sewage disposal systems within zones of contributions shall not exceed 330 gallons per acre per day. Although under this current Regulation, only three bedrooms would be allowed, the Board determined based upon the Assessor's record and other information, that a total of four (4) bedrooms should be allowed. You presented no evidence to dispute this. Your representative acknowledged at the hearing that, in accordance with the Conciliation Agreement, the premises, prior to your purchase, were advertised as a four bedroom home. The Board invited the applicant to request another hearing within 60 days in the event the applicant uncovers or finds additional information to support bedrooms in excess of four. The Board of Health voted unanimously to order you to remove the two bedrooms located in the basement on or before July 14, 2005. All beds 500huckinsneck7 shall be removed from the basement on or before July 14, 2005. Also, the doors to these two rooms shall be removed before July 14, 2005. In addition, the doorways to these rooms shall be widened to a minimum of five feet wide. In addition, you are ordered to reduce the number of bedrooms located on the main floor on the dwelling to four (4) bedrooms maximum on or before August 14, 2005. Beds and doors to three of the main floor rooms, including from the dining room, shall be removed. A re-inspection will be held on Tuesday August 23, 2005 at 10:00 a.m. to verify whether or not you are in compliance with this order from the Board of Health. PE RDE F THE BOARD OF HEALTH ayn it D. Chai an 500huckinsneck7 � , Stanton, David From: McKean, Thomas Sent: Tuesday, May 10, 2005 4:56 PM To: Stanton, David Subject: FW: 500 Huckins Neck Road/Complaint Dave Ruth Weil called back this afternoon. According to wording in the Agreement, they are entitled to only four bedrooms. It's located within a nitrogen sensitive area near Lake Wequaquet. However, if it is again a sober house(or if the use is for some legitimate group home)then six bedrooms would be allowed. A different standard was applied for the disabled. Six bedrooms were allowed for Tranquility House because there was only one person per bedroom. -----Original Message----- From: McKean,Thomas Sent: Tuesday, May 10, 2005 2:28 PM To: Weil,Ruth Subject: RE: 500 Huckins Neck Road/Complaint If this a new owner and he/she is not operating a sober house there, do we restrict it to 4 bedrooms or 6 bedrooms? -----Original Message----- From: Weil, Ruth Sent: Tuesday, May 10,2005 7:56 AM To: McKean,Thomas Cc: Smith, Robert Subject: RE: 500 Huckins Neck Road/Complaint Dear Tom: What's the story here? Please give me a call when you get a moment. Thanks. Ruth -----Original Message----- From: McKean,Thomas Sent: Monday, May 09, 2005 4:42 PM To: Agostinelli, Joan Cc:,Weil, Ruth Subject: 500 Huckins Neck Road/ Complaint I just received a complaint via voice mail that there is an overcrowding problem at 500 Huckins Neck Road. Please log this in the complaint database for an inspector to investigate. The complainant representative is Tom Rugo at(508) 375-9975. I am aware, from an inspection a few years ago, that there was a room in the basement that was not legal for use as a bedroom due to that fact that there was no emergency egress window provided. At that time, the room was used only for storage. 1 05/20/2005 00:41 FAX 508 362 7770 Deacn Munroe House 006/006 777 #01-03-0411-8 II. SETTLEMENT 1. The Parties to this agreement assent to the following and acknowledge that it constitutes the granting of a reasonable accommodation to the rules, practices, and policies of the Town of Barnstable with respect to Tranquility Houses, Inc. property located at 500 Huckins Neck Road in Centerville, Massachusetts. 2. As was stated in the original order of the Board of Health, the Parties, agree the maximum number of bedrooms that will be allowed at the above-mentioned property is six (6) bedrooms. This constitutes a reasonable accommodation because under the current state environmental code the imum nUmber of P9E=sffi1eAiad roo is four and under the town's local ordinance the maximum number is three. To comply with this requirement, the Complainants agree as follows: a) Complainants shall use the six bedrooms on the first floor level only and no rooms in the basement level shall be used as bedrooms; or, b) Alternatively, if the Complainants want to convert the room located in the basement level adjacent to the community room into a bedroom, then Complainants may so do, provided that they first: 1. Modify the window located in the basement room so that it is able to open 20" by 24"without the use of special tools, 2. Provide a minimum five-foot.opening between the two smallest bedrooms located on the first floor, thereby converting the two bedrooms into one bedroom; for a total of five bedrooms on the first floor; 3. Obtain all necessary town permits before commencing any construction. 3. The Complainants agree to provide a copy of its annual report to the Town of Barnstable Department of Regulatory Services, Health Division, every year. The report will'state the number.of residents that resided at the residential home,, but will not include the names or the identities of the residents. n 4. The Parties agree the reasonable accommodation. (use of'6 bedrooms) granted to 500 Huckins Neck Road shall terminate if the property is -not used for the Tranquility House program or a substantially similar program for persons with disabilities. 3 12003.021 ftudagree3] i Agostinelli, Joan From: McKean, Thomas Sent: Monday,May 09, 2005 4:42 PM To: Agostinelli, Joan Cc: Weil, Ruth Subject: 500 Huckins Neck Road/Complaint I just received a complaint via voice mail that there is an overcrowding problem at 500 Huckins Neck Road. Please1og this in the complaint database for an inspector to investigate. The complainant representative is Tom Rugo at(508)375- 9975. 1 am aware, from an inspection a few years ago, that there was a room in the basement that was not legal for use as a bedroom due to that fact that there was no emergency egress window provided. At that time, the room was used only for storage. �a 1 Page 1 of 1 McKean, Thomas From: tomrugo@comcast.net Sent: Tuesday, May 24, 2005 12:45 PM To: McKean, Thomas Subject: 500 Huckins Neck Road Tom; On Friday I forwarded to you via fax info for 500 Huckins, including the real estate ad stating the home "for sale ad" was a four bedroom, please let me know if you did not receive the info and please let me know how this issue is proceeding, i.e. when are the town officials meeting with the owner,who is meeting with the owner and is the Town's position consistent with the previous town assessors record, the town attorneys prior stipulations and the town ordinances? Thank you. Tom Rugo precinct two councilor 5/24/2005 05/20/2005 00:40 FAX 508 362 7770 Deacn Munroe House 0 002/006 Page 1 of 1 Grissom, Donald From: Stan Jones [stanley.jonesl@comcast.net] Sent: Tuesday, May 17, 2005 12:28 PM To: Town Council Mailbox Subject: 500 Huckins Neck Tom Rugo I understand the the property at 500 Huckins Neck has been sold. Now it has about 10 cars parked there all the time. Has this turned into a rooming house? is this legal? Stan Jones 5/17/2005 McKean, Thomas From: McKean, Thomas Sent: Wednesday, June 16, 2004 11:42 AM To: Weil, Ruth; Wayne Miller M. D. (wamdoc@aol.com); Sumner Kaufman MSPH (sonnykoff@aol.com); Susan Rask RS (srask@cape.com) Subject: RE: Summons and Complaint/Thomas R. Rugo Versus Board of Health Yesterday, I received a memorandum from Ruth Weil, Assistant town Attorney, requesting comments, paragraph by paragraph "ASAP" in order to answer a complaint from Thomas R. Rugo in regards to 500 Huckins Neck Road. Below are my comments: • Paragraph 2 reads as follows: The subject property is a four bedroom, one story, ranch style residence." This is not true. The dwelling actually contains six bedrooms on the first floor. Also for some time, and during and before the year 2003, it contained two bedrooms within the basement. On July 30, 2003, after a complaint was received, the Director of Public Health ordered the owner to remove the bedrooms from the basement, reducing the number of bedrooms from eight to six, due to the inadequately sized septic system. Also, the basement did not have adequate emergency egress for these two rooms. • Paragraph 4 is not true. Title 5 regulations do not require a property owner of an existing dwelling which already exceeds 440 gallons per acre per day to be granted a variance for exceeding 440 gallons of design flow per day per acre. • Paragraph 5 is not true. To the best of my knowledge, the Town did not process a disposal works construction permit application on June 27, 2001 in error. Also, the Town did not issue a certificate of compliance on February 19, 2002 in error. Title 5 regulations do not require a property owner of an existing dwelling which already exceeds 440 gallons per acre per day, to be granted a variance for exceeding 440 gallons of design flow per day per acre. There was no error to correct in this regard. • Paragraph 6 reads as follows: "The property is on record with the Assessor's Office as a 4 bedroom residence..." This is true. However the third sentence of this paragraph reads: "There is no legal basis to call 500 Huckins Neck Road a 6 bedroom residence." This is not true. The Public Health Division does not rely on assessor's records for determinations in regards to compliance with Title 5, the State Environmental Code, regulations. • Paragraph 9 is true. It is true that the plaintiff did not receive a notice of a hearing for a variance request. This is simply because there was no variance request received or needed. Also, there was no hearing held for a variance request because a variance was not required or needed. • Paragraph 10 is not true-the Board of Health did not approve two additional bedrooms at 500 Huckins Neck Road on August 19, 2003. Two additional bedrooms were not proposed. On that date, the Board upheld the order from the Director of Public Health to remove two bedrooms from the basement. • Paragraph 11 is not true-there wasn't an "erroneous action by the defendant" in regards to new construction in a nitrogen sensitive area. There wasn't any new construction proposed. Also, the Board upheld the order to remove two bedrooms from the property. Also, Title 5 regulations do not require a property owner of an existing dwelling which already exceeds 440 gallons per acre per day to be granted a variance for exceeding 440 gallons of design flow per day per acre. • Paragraph 12 is not true-there wasn't an"erroneous action by the defendant" in regards to the review of a variance request. The Board of Health did not receive a request for a variance from Title 5, the State Environmental Code. Also, the Board did not grant any variances in this regard. Instead, the Board upheld the order to remove two bedrooms from the property. Also, Title 5 regulations do not require a property owner of an existing dwelling which already exceeds 440 gallons per acre per day, to be granted a variance for exceeding 440 gallons of design flow per day per acre. • Paragraph 13 is not true-there wasn't an "erroneous action by the defendant," in regards to violating the Building Code by allowing construction of bedrooms at 500 Huckins Neck Road. The Board of Health did not receive a request to construct any additional bedrooms and did not approve the construction of any 1 bedrooms. Instead, the Board upheld the order to remove two bedrooms from the property. Also, Title 5 regulations do not require a property owner of an existing dwelling which already exceeds 440 gallons per acre per day, to be granted a variance for exceeding 440 gallons of design flow per day per acre. • Paragraph 14 is not true-there wasn't an "erroneous action by the defendant" in regards to approving two additional bedrooms in violation of 310 CMR 15.214 Nitrogen Loading Limitations, in regards to processing a variance, and in regards to 15.410 Standard of Review. The Board of Health did not receive a request for a variance from Title 5, the State Environmental Code. Also, the Board did not grant any variances in this regard. The Board of Health did not receive a request to construct any additional bedrooms and did not approve the construction of any additional bedrooms. No variance request was received from the property owner to construct any additional bedrooms. Instead, the Board upheld the order to remove two bedrooms from the property. Also, Title 5 regulations do not require a property owner of an existing dwelling which already exceeds 440 gallons per acre per day, to be granted a variance for exceeding 440 gallons of design flow per day per acre. • Paragraph 16 is not true-there wasn't an "erroneous action by the defendant" in regards to approving two additional bedrooms. The Board of Health did not receive a request to construct any additional bedrooms and did not approve the construction of any additional bedrooms. No variance request was received from the property owner to construct any additional bedrooms. Instead, the Board upheld the order to remove two bedrooms from the property. Also, Title 5 regulations do not require a property owner of an existing dwelling which already exceeds 440 gallons per acre per day, to be granted a variance for exceeding 440 gallons of design flow per day per acre. • Paragraph 17 is not true. The plaintiff's rights were not harmed simply because there was no failure on the part of the Board of Health to comply with State regulations. Also, both the plaintiff and the Board did not receive a notice of a hearing for a variance request simply because there was no request received or needed for a variance from the State Environmental Code. Also, there was no hearing held for a variance request from the State Environmental Code, Title 5. • Paragraph 18 is not true. The defendant did not cause substantial errors of law. The defendant did not cause any errors of law. • The first two sentences of paragraph 20 are true- The Board of Health did indicate that the Board never approved an increase of two bedrooms and that the Board recognized the property as a pre-existing six bedroom residence. During the meeting of March 30, 2004 with the Board of Health, Mr. Rugo indicated to the Board that the subject matter appears to be resolving itself. He stated that the owner has placed the home up for sale. 2 #01-03-0411-8 CONCILIATION AGREEMENT Preamble The Parties to this Conciliation Agreement (hereinafter collectively "the Parties") are Complainants, Tranquility Houses, Inc. and Edith White (hereinafter "Complainants"), the Town of Barnstable and Director of Health . Thomas McKean, (hereinafter ".Respondents"), and the United States Department of Housing and Urban Development (hereinafter "the Department"). On September 12, 2003, Complainants filed a complaint with the Department challenging an order of the Barnstable Board of Health which required the reduction in the number of bedrooms from eight to six based upon state and local environmental regulations. Complainant alleged that Respondents were denying persons with disabilities full access and enjoyment to the subject property. The Complainants further alleged the land use and zoning ordinances of the Town were being applied in a discriminatory manner and that Respondents refused to grant a reasonable accommodation. The Respondent answered by asserting Cape Cod's groundwater is the sole source of water for domestic and for most commercial and industrial uses. Over 90 percent of the homes on Cape Cod use on-site subsurface systems for disposal of wastewater. Numerous public water-supply test results show a distinct correlation between housing density and nitrogen (nitrate) concentration in the well water. Because the property is located in a groundwater protection overlay district, the state has limited the number of bedrooms on Complainants' property to four bedrooms. The Town's ordinance regulating wastewater discharge limits the number of bedrooms to three. The Respondent, Board of Health, further alleged that it has required numerous owners of single-family residences within the town of Barnstable to remove bedrooms when the number of bedrooms exceeded the number allowed under the state and local regulations. The Respondent further answered by stating that it provided reasonable accommodation to the Complainants by allowing them to continue to maintain six bedrooms rather than the four that would be allowed under the current state law and the three that would be allowed under the .current local regulations. The Board of Health has further alleged that it provided reasonable accommodation by giving the Complainants until January 1, 2004 to remove the two additional unpermitted bedrooms. The Complainants purchased residential property which they lease to groups of men and women in recovery from alcoholism and drug addiction. The complaint was filed under the Fair Housing Act, 42 U.S.C. §§3601-19 (hereinafter "the Act"). The Parties agree that it is in their best interests to avoid further administrative proceedings and the potential for protracted and costly legal proceedings. Accordingly, the Parties enter into this Conciliation Agreement in order to resolve their dispute. #01-03-0411-8 I. GENERAL PROVISIONS 1. It is understood that the Parties enter into this Agreement freely and voluntarily, and that no party has been coerced, intimidated, threatened, or in any way forced to become a party to this agreement. 2. This Agreement will become effective as of the date signed by the HUB Director of the New England Office of Fair Housing and Equal Opportunity. The HUB Director, acting on behalf of the Secretary of the Department of Housing and Urban Development (hereinafter "the Secretary"), retains authority to approve or disapprove this Agreement. 3. While Complainants assert in their complaint that Respondents have violated the Fair Housing Act, Respondents have denied any wrongdoing or.that any such evidence exists. It is understood that this Agreement does not constitute evidence of a determination by the Department of any violation of the Fair Housing Act or any other federal statute nor constitutes an admission of any wrong doing. Respondents agree that the Secretary has the authority to enforce the Fair Housing Act. 4. In exchange for the Respondents' performance of the provisions of this Agreement, the Complainants hereby waive, release and covenant not to file a civil action against the Respondents, or to under take further administrative action against the Respondents with respect to the matters which were or which might have been alleged in the subject Fair Housing complaint. This release and waiver applies to the complaint existing between the signatories to this Agreement, and applies to any other complaints filed by Complainants which may be pending with the Department, including all matters pending up to the effective date of this Agreement. Additionally, the Department agrees not to take any further action with respect to the complaint or any other complaints tiled by the Complainants which may be pending with the Department. 5. This Agreement does not in any way limit or restrict the Department's authority to investigate and act upon any future complaints involving Respondents. 6. It is understood that, according to Section 810(b) (4) of the Act, this Agreement shall become a public document. The Department, however, shall hold confidential all information of a personal or financial nature, concerning the Parties to this Agreement, and not contained in the body of this Agreement. (2003-0216\hudagree3] 2 #01-03-0411-8 II. SETTLEMENT 1. The Parties to this agreement assent to the following and acknowledge that it constitutes the granting of a reasonable accommodation to the rules, practices, and policies of the Town.of Barnstable with respect to Tranquility Houses, Inc. property located at 500 Huckins Neck Road in Centerville, Massachusetts. 2. As was stated in the original order of the Board of Health, the Parties agree the maximum number of bedrooms that will be allowed at the above-mentioned property is six (6) bedrooms. This constitutes a reasonable accommodation because under the current state environmental code the maximum number of permissible bedrooms is four and under the town's local ordinance the maximum number is three. To comply with this requirement, the Complainants agree as follows: a) Complainants shall use the six bedrooms on the first floor level only and no rooms in the basement level shall be used as bedrooms; or, b) Alternatively, if the Complainants want to convert the room located nt to the co mmunity room into a m the basement level adjacent y bedroom, then Complainants may so do, provided that they first: 1. Modify the window located in the basement room so that it is able to open 20" by 24" without the use of special tools; 2. Provide a minimum five-foot opening between the two smallest bedrooms located on the first floor, thereby converting the two bedrooms into one bedroom; for a total of five bedrooms on the first floor; 3. Obtain all necessary town permits before commencing any construction. 3. The Complainants agree to provide a copy of its annual report to the Town of Barnstable Department of Regulatory Services, Health Division, every year. The report will state the number.of residents that resided at the residential home, but will not include the names or the identities of the residents. 4. The Parties agree the reasonable accommodation (use of 6 bedrooms) granted to 500 Huckins Neck Road shall terminate if the property is not used for the Tranquility House program or a substantially similar program for persons with disabilities. 12003-0216rhudagree3l 3 #0.1-03-0411-8 5. The Complainants agree all sober house residents,will execute an agreement or application to participate in the Tranquility House Program or a similar program at the. property. 6. The complainants agree to withdraw the Federal Discrimination Complaint filed with the U. S. Dept. of HUD. As directed by this Agreement, any required certifications and documentation of compliance must be submitted to: Office of Fair Housing & Equal Opportunity US Department of Housing and Urban Development 10 Causeway Street Boston, MA 02222-1092 (Signatures on Page 5 follows) (2003-0216Utudagree3l 4 #01-03-0411-8 SIGNATURES z Le- w, Date G o ussell J. A /,rOibald, Conciliator These signatures attest to the approval and acceptance of this Conciliation Agreement: For Tranquility House Inc. (Complainant): By: 77 Date ///4/ / Edith White (Complainant): By: Date `40 v Edith White Complainant) For The Town of Barnstable, Mja§sachusetts (Respondents): i By: Date John C. 'mm, Town Manager By: Date l 3 Thomas McKean,Director, Dept. of Regulatory Se is s, Health Division For U.S. Dept. of Hou ."rD pment (the Department): B : DateYarll , r New England HUD, Office of Fair Housing & Equal Opportunity (2003-0216\hudagree3l 5 THOMAS R. RUGO ATTORNEY AT LAW 720 MAIN STREET HYANNIS, MA 02601 508 7751171 March 19, 2004 Wayne Miller, M.D., Barnstable Board of Health, Sumner Kaufrnan, Barnstable Board of Health, Susan K. Rask, Barnstable Board of Health, and RE: 500 Huckins Neck Road, Centerville, MA Dear Sir or Madam Chairperson; As the Barnstable Town Councilor from Precinct two, Centerville and as an interested party to the above matter it is my request to discuss concerns with you at your next regularly scheduled meeting. It appears that the owner of 500 Huckins Neck Road, Centerville has upgraded their septic system in in violation of the Massachusetts Department of Environmental Protection Regulations, 310 CMR 15.000 State Environmental Code, Title 5. Because the property is located in a groundwater protection overlay District, 500 Huckins Neck Road, Centerville is subject to the Massachusetts Department of Environmental Protection Regulations, 310 CMR 15.000 State Environmental Code, Title 5. These regulations require a property owner to be granted a variance from the appropriate regulating authority before exceeding more than 440 gallons of design flow per day per acre. Please consider this letter a second formal request to the Barnstable Board of Health to be heard by the abutters regarding action taken, or not taken,by the board of health relative to 500 Huckins Neck Road, Centerville. Please schedule us to be heard at your next meeting on March 30,2004. Please contact this office if you have any questions, we look forward to meeting with the board on March 30, 2004. Very truly yours, Thomas R. Rugo Enc. Certified Mail : # 7001 1940 0004 9042 2317 oFt�ram, BARNSTABLE, = Town of Barnstable 9 MASS. q''Otp1639.. Regulatory Services Thomas F. Geiler, Director Public Health Division Thomas McKean,Director 200 Main Street Hyannis, MA 02601 Office: 508-862-4644 Wayne Miller, M.D. Fax: 508-790-630 Susan G.Rask,R.S. Sumner Kaufman,MSPH March 25, 2004 Ms. Edith White PO Box 803 Pocasset, MA 02559 Re: 500 Huckins Neck Road — Centerville, MA Dear Ms. White: This letter is to serve as notification to you that Thomas R. Rugo has requested a hearing regarding 500 Huckins Neck Road, Centerville. His concerns will be heard during the Board of Health Meeting on Tuesday, March 30, 2004, which will begin at or after 7:00 PM in the Town Hall, 367 Main Street, Hyannis, second floor hearing room. Respectfully, G Thomas A. McKean Director of Public Health Town of Barnstable THOMAS R. RUGO ATTORNEY AT LAW 720 MAIN STREET HYANNIS, MA 02601 508 7751171 March 19, 2004 Wayne Miller, M.D., Barnstable Board of Health, Sumner Kaufman, Barnstable Board of Health, Susan K. Rask, Barnstable Board of Health,.and RE: 500 Huckins Neck Road, Centerville, MA Dear Sir or Madam Chairperson; As the Barnstable Town Councilor from Precinct two, Centerville and as an interested party to the above matter it is my request to discuss concerns with you at your next regularly scheduled meeting. Please find enclosed affidavits from abutters concerning an apparent variance which was granted by this board to 500 Huckins Neck Road, Centerville. It has come to our attention that this variance may have informally been approved. The attached affidavits attest to the fact that the abutters of 500 Huckins Neck Road never received proper notice in accordance with the Massachusetts Department of Environmental Protection Regulations, 310 CMR 15.000 State Environmental Code, Title 5. Please consider this letter a formal request to the Barnstable Board of Health to be heard by the abutters regarding action taken by the board of health relative to 500 Huckins Neck Road, Centerville. Please schedule us to be heard at your next meeting on March 30,2004. Please contact this office if you have any questions, we look forward to meeting with the board on March 30, 2004. ' Very truly yours, k'Q Thomas R. Ru o� g Enc. AFFIDAVIT I, Thomas R. Rugo of Centerville, do say and depose that: 1. I reside at 19 Pondside Circle, Centerville, Massachusetts and resided at this address during the entire months of July and August 2003. 2. My residence abuts 500 Huckins Neck Road, Centerville, Massachusetts. 3. That during the period of July and August 2003, I never received any notification by Edith White, "Tranquility Houses Inc." or the Town of Barnstable, by certified mail or otherwise, that a hearing on a requested variance from the requirements of Title V, 310 CMR 15.214 and 15.215 by Edith White, owner of 500 Huckins Neck Road, Centerville, MA, was scheduled to be heard by the Barnstable Board of Health on August 19, 2003 at 7:00 pm. 4. It has now come to my attention that on August 19, 2003 the Barnstable Board of Health effectively allowed Edith White a variance from the requirements of Title V, 310 CMR 15.214 and 15.215. This variance allowed White to increase the actual or design flow of her septic system to more than 440 gallons of design flow per day per acre and thereby approved and increased capacity from four (4) bedrooms to six (6) bedrooms. 5. According to the records of the town of Barnstable Assessors Division, as of July 24, 2003, 500 Huckins Neck Road, Centerville, Massachusetts is a one story, ranch style residential home consisting of 2088 feet of living area with four (4)bedrooms, two (2) bathrooms with a total of seven (7) rooms. 6. Because 500 Huckins Neck Road, Centerville is located in a groundwater protection overlay district (GP District), the state has limited the number of bedrooms at 500 Huckins Neck Road, Centerville to four (4) bedrooms, and no more than 440 gallons of design flow per day per acre (the 440 rule). The Town of Barnstable's ordinance regulating wastewater discharge limit's the number of bedrooms to three (3). 7. According to Massachusetts state regulations, Department of Environmental Protection, 310 CMR 15.411 Process for seeking a Variance From Local Approving Authorities (1) The local authority shall review f requests for variances as follows. (a) Every request for a variance shall be in writing and shall make reference to the specific provision of 310 CMR 15.000 from which a variance is sought and a statement in compliance with 310 CMR 15.410. (b) No application for a variance shall be complete until the applicant has notified all abutters by certified mail at his/her expense at least ten days before the Board of Health meeting at which the variance request will be on the agenda. The notification shall reference the specific provisions of 310 CMR 15.000 from which a variance is sought, a statement of the standards set forth in 310 CMR 15.410 and the date, time and place where the application will be discussed. ... a copy of each variance shall be conspicuously posted for 30 days following its issuance .... 8. I never received said notice as described in the above paragraph and believe there was no 30 day conspicuous posting. 9. On July 11, I wrote Barnstable Building Commissioner with a copy to the town attorney, manager and conservation commission regarding an unlicensed lodging house at 500 Huckins Neck Road, Centerville. The inquiry was as to what was going on at that house and the apparent town ordinance violations and illegal tenants occupying the residence. 10. On or about August 11 or 12, 2003 I received a response from Building Commissioner Thomas Perry, his letter informed me that: "According to the board of health the house has an approved septic system for six bedrooms. Because of this the owners have applied for a variance and have a hearing scheduled for August 19, 2003." 11. My quiet enjoyment has been disturbed by the activity at 500 Huckins Neck Road which includes excessive noise coming from 500 Huckins Neck Road, Centerville, including excessive swearing and foul, indecent, offensive, language from up to 12 residents who regularly congregate outside the home while smoking which is not allowed inside the rooming house thus causing a constant barrage of indecent and offensive language to flow onto my property and heard by myself and my family while playing on our swing set and during other times in the use of our property, excessive automobiles (10 or more) parked adjacent to my property and polluting the abutting wetland with run off and excessive nitrogen loading in the adjacent wetland, lake, pond and groundwater. 12. My rights have been substantially harmed by the failure of the Board of Health to comply with the state regulations, the failure to receive notice and thus provide an opportunity to be heard on the request for a variance to the State Environmental Code, Title 5. 13. Your actions have caused substantial errors of law which are apparent on the record and adversely affect my material rights. These errors have resulted in a manifest injustice and have adversely affected the real interests of the general public. 14. The Barnstable Board of Health has ignored the fact that Edith White violated 310 CMR 15.000 by adding more than (4) four bedrooms to 500 Huckins Neck Road, Centerville and created a half way house for substance abusers consisting of adult men, some of whom are convicted felons, including convictions for violent crimes such as armed robbery and assault and battery with a dangerous weapon. This housing arrangement places two men per room at a cost of$150.00 per week per person allowing for the house to gross up to $7,740.00 per month or $92,880.00 per year. I, Thomas R. Rugo, swear under the pains and penalties of perjury that the above statements are true and accurate to the best of my knowledge. Signed this 19 day of March 2004. r v Thomas R. Rugo 1 _ AFFIDAVIT I, Nick Fitzgerald of Centerville, do say and depose that: 1 . I reside at 45 Pondside Circle, Centerville, Massachusetts and resided at this address during the entire months of July and August 2003. 2. My residence directly abuts 500 Huckins Neck Road, Centerville, Massachusetts. 3. That during the period of July and August 2003, I never received any notification by Edith White, "Tranquility Houses Inc." or the Town of Barnstable, by certified mail or otherwise, that a hearing on a requested variance from the requirements of Title V, 310 CMR 15.214 and 15.215 by Edith White, owner of 500 Huckins Neck Road, Centerville, MA, was scheduled to be heard by the Barnstable Board of Health on August 19, 2003 at 7:00 pm. 3 4. It has now come to my attention that on August 19, 20Q#the Barnstable Board of Health effectively allowed Edith White a variance from the requirements of Title V, 310 CMR 15.214 and 15.215. This variance allowed White to increase the actual or design flow of her septic system to more than 440 gallons of design flow per day per acre and thereby approved and increased capacity from four (4) bedrooms to six (6) bedrooms. 5. According to the records of the town of Barnstable Assessors Division, as of July 24, 2003, 500 Huckins Neck Road, Centerville, Massachusetts is a one story, ranch style residential home consisting of 2088 feet of living area with four (4) bedrooms, two (2) bathrooms with a total of seven (7) rooms. 6. Because 500 Huckins Neck Road, Centerville is located in a groundwater protection overlay district (GP District), the state has limited the number of bedrooms at 500 Huckins Neck Road, Centerville to four (4) bedrooms, and no more than 440 gallons of design flow per day per acre (the 440 rule). The Town of Barnstable's ordinance regulating wastewater discharge limit's the number of bedrooms to three (3). 7. According to Massachusetts state regulations, Department of Environmental Protection, 310 CMR 15.411 Process for seeking a Variance r From Local Approving Authorities (1) The local authority shall review requests for variances as follows. (a) Every request for a variance shall be in writing and shall make reference to the specific provision of 310 CMR 15.000 from which a variance is sought and a statement in compliance with 310 CMR 15.410. (b) No application for a variance shall be complete until the applicant has notified all abutters by certified mail at his/her expense at least ten days before the Board of Health meeting at which the variance request will be on the agenda. The notification shall reference the specific provisions of 310 CMR 15.000 from which a variance is sought, a statement of the standards set forth in 310 CMR 15.410 and the date, time and place where the application will be discussed. ... a copy of each variance shall be conspicuously posted for 30 days following :its issuance .... 8. I never received said notice as described in the above paragraph and believe there was no 30 day conspicuous posting. 9. I have just learned that the August 19, 2003 Barnstable Board of Health meeting agenda included a notice that Edith White requested a hearing regarding order issued to her to remove two of the eight bedrooms at 500 Huckins Neck Road, Centerville, Massachusetts. 10. The Barnstable Board of Health has ignored the fact that Edith White violated 310 CMR 15.000 by adding more than (4) four bedrooms to 500 Huckins Neck Road, Centerville. I, Nick Fitzgerald, swear under the pains and penalties of perjury that the above statements are true and �ccur to to the best of my knowledge. Signed this day of 10%QY March 2004. eik Fitzger AFFIDAVIT I, Donald Summers of Centerville, do say and depose that: 1. I reside at 491 Huckins Neck Road, Centerville, Massachusetts and resided at this address during the entire months of July and August 2003. 2. My residence is located directly across the street from and abuts 500 Huckins Neck Road, Centerville, Massachusetts. 3. That during the period of July and August 2003, I never received any notification by Edith White, "Tranquility Houses Inc." or the Town of Barnstable, by certified mail or otherwise, that a hearing on a requested variance from the requirements of Title V, 310 CMR 15.214 and 15.215 by Edith White, owner of 500 Huckins Neck Road, Centerville, MA, was scheduled to be heard by the Barnstable Board of Health on August 19, 2003 at 7:00 m. A - 4. It has now come to my attention that on August 19, 20Qthe Barnstable Board of Health-effectively allowed Edith White a variance from the requirements of Title V, 310 CMR 15.214 and 15.215. This variance allowed White to increase the actual ef-� flow of her septic system to more than 440 gallons-4-4e gQ flow per day per acre and thereby approved and increased capacity from four (4) bedrooms to six (6) bedrooms. 5. According to the records of the town of Barnstable Assessors Division, as of July 24, 2003, 500 Huckins Neck Road, Centerville, Massachusetts is a one story, ranch style residential home consisting of 2088 feet of living area with four (4) bedrooms, two (2) bathrooms with a total of seven (7) rooms. 6. Because 500 Huckins Neck Road, Centerville is located in a groundwater protection overlay district (GP District), the state has limited the number of bedrooms at 500 Huckins Neck Road, Centerville to four (4) bedrooms, and no more than 440 gallons of design flow per day per acre (the 440 rule). The Town of Barnstable's ordinance regulating wastewater discharge limit's the number of bedrooms to three (3). 7. According to Massachusetts state regulations, Department of Environmental Protection, 310 CMR 15.411 Process for seeking a Variance From Local Approving Authorities (1) The local authority shall review requests for variances as follows. (a) Every request for a variance shall be in writing and shall make reference to the specific provision of 310 CMR 15.000 from which a. variance is sought and a statement in compliance with 310 CMR 15.410. (b) No application for a variance shall be complete until the applicant has notified all abutters by certified mail at his/her expense at least ten days before the Board of Health meeting at which the variance request will be on the agenda. The notification shall reference the specific provisions of 310 CMR 15.000 from which a variance is sought, a statement of the standards set forth in 310 CMR 15.410 and the date, time and place where the application will be discussed. ... a copy of each variance shall be conspicuously posted for 30 days following its issuance .... 8. I never received said notice as described in the above paragraph and believe there was no 30 day conspicuous posting. 9. I have just learned that the August 19, 2003 Barnstable Board of Health meeting agenda included a notice that Edith White requested a hearing regarding order issued to her to remove two of the eight bedrooms at 500 Huckins Neck Road, Centerville, Massachusetts. 10. The Barnstable Board of Health has ignored the fact that Edith White violated 310 CMR 15.000 by adding more than (4) four bedrooms to 500 Huckins Neck Road, Centerville. I, Donald Summers, swear under the pains and penalties of perjury that the. above statements are true and accurate to the best of my knowledge. Signed this i day of March 2 04. Don Summers (1) That a decree be entered dismissing Complainants' Complaint herein; (2) That a decree be entered affirming the Decision of the Barnstable Board of Health in all respects; (3) That judgment be entered in Respondents' favor under all counts of Complainants' Complaint; (4) That Respondents be granted their costs, disbursements, and attorneys' fees in the defense of this action; and, (5) That Respondents be granted such other and further relief as to this Court it deems just and appropriate. Dated: September 24, 2003. TOWN OF BARNSTABLE, and THOMAS A. McKEAN, Director of PUBLIC HEALTH OF TOWN OF BARNSTABLE, Respondents, By their Attorneys, ROBERT D. SMITH, Town Attorney [B.B.O. No. 469980] RUTH J. WEIL, 1st Assistant Town Attorney [B.B.O. No. 519285] T. DAVID HOUGHTON, Assistant Town Attorney [B.B.O. No. 241160] TOWN OF BARNSTABLE 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508).862-4620; (508) 862-4724 TO: MARCELLA O. BROWN, DIRECTOR BOSTON HOUSING & URBAN DEVELOPMENT OFFICE OF FAIR'HOUSING & EQUAL OPPORTUNITY O'Neill Federal Building 10 Causeway Street Boston, MA 02222-1092 (2003-0216\ans-hudtranq]1 6 Town of Barnstable KASS Board of Health P.O. Box 534, Hyannis MA 02601 Office: 508-862-4644 Susan G.Rask,R.S. FAX: 508-790-6304 Sumner Kaufman,MS Wayne Miller,M.D. August 29, 2003 Ms. Edith White P.O. Box 803 Pocasset Ma 02559 On August 19, 2003, the Board of Health voted to uphold the order from our Health Agent, Thomas McKean, directing you to remove two bedrooms from the basement located at 500 Huckins Neck Road, Centerville,Massachusetts. This home is located within a nitrogen sensitive area and is therefore limited to a lesser number of bedrooms in accordance with the local Town Ordinance, Regulation of wastewater Discharge. Also, the existing septic system capacity is designed to handle only six bedrooms. However, Health Inspector Donald Desmarais, R.S. counted eight bedrooms within this home. You are granted an extension of time, until January 1, 2004 , to remove the-tenants from the basement bedrooms. Non-compliance could result in a fine of up to $10,000.00. Each day's failure to comply with an order shall constitute a separate violation. PER O ER OF T BOARD OF HEALTH Wt e 1 er, .D. C rm f the Board of Health ECJEC �,�P -O H ARCEL, Environmental _ www.eco-tech.us a THIS FORM IS A FACSIMILE OF THE STANDARD SEPTIC INSPECTION FORM ISSUED BY THE MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION(revised 6/15/2000) TITLE 5 OFFICIAL INSPECTION FORM_NOT FOR VOLUNTARY ASSESSMENTS SUBSURFACE SEWAGE DISPOSAL SYSTEM FORM PART A CERTIFICATION Property Address: 500 Huckins Neck Road Centerville Owner's Name: Edith White Owner's Address: 39 Ships View Terrace Bourne,MA 02532 Date of Inspection: May 8, 2004 Name of Inspector: (Please Print) David D. Coughanowr,R.S. W1i AY 1 1 2004 Company Name: Eco-Tech Environmental Mailing Address: 43 Triangle Circle TOWN'OF RARNSTABLE, Sandwich,MA 02563 HgALTH DEPT. Telephone Number: (508)364-0894 CERTIFICATION STATEMENT: I certify that I have personally inspected the sewage disposal system at this address and that the information reported below is true,accurate and complete as of the time of the inspection.The inspection was performed based on my training and experience in the proper function and maintenance of on-site sewage disposal systems. I am a DEP approved system inspector pursuant to section 15.340 of Title 5(310 CMR 15.000). The system: X Passes Conditionally Passes Needs Further Evaluation By the Local Approving Authority Fails Inspector's Signature ZOILZ 6VIL_/_s Date: U ky The System Inspector shall submit a copy of this inspection report to the Approving Authority(Board of Health or DEP)within 30 days of completing this inspection. If the system is a shared system or has a design flow of 10,000 gpd or greater,the inspector and the system owner shall submit the report to the appropriate regional office of the DEP. The original should be sent to the system owner and copies sent to the buyer,if applicable,and the approving authority NOTES AND COMMENTS Inspector's Note—> A septic system is deemed to pass this Real Estate Transfer Inspection if it does not trigger any of the failure criteria listed below. The septic system has been evaluated according to the conditions observed on the day it was inspected. No estimate or guarantee of system longevity is made or implied by a passing determination. ****This report only describes p y desc bes conditions at the time of inspection and under the conditions of use at that time. This inspection does not address how the system will perform in the future under the same or different conditions of use. Title 5 Inspection Form 6/15/2000 page 1 ' •Page 2 of 11 OFFICIAL INSPECTION FORM_NOT FOR VOLUNTARY ASSESSMENTS SUBSURFACE SEWAGE DISPOSAL SYSTEM INSPECTION FORM PART A CERTIFICATION(continued) Property Address: 500 Huckins Neck Road Centerville Owner: Edith White Date of Inspection: May 8, 2004 INSPECTION SUMMARY: Check A,B,C,D or E/ALWAYS complete all of section D: A] System Passes: Yes I have not found any information which indicates that any of the failure criteria described in 310 CMR 5.303 or in 310 CMR 15.304 exist. Any failure criteria not evaluated are indicated below. COMMENTS: B] System Conditionally Passes: One or more system components as described in the"Conditional Pass" section need to be replaced or repaired. The system, upon completion of the replacement or repair,as approved by the Board of Health,will pass. Answer yes,no, or not determined(Y,N,or ND). in the_for the following statements.If"not determined"please explain. The septic tank is metal and over 20 years old* or the septic tank(whether metal or not),is structurally unsound,exhibits substantial infiltration or exfiltration, or tank failure is imminent. System will pass inspection if the existing tank is replaced with a complying septic tank as approved by the Board of Health. *A metal septic tank will pass inspection if it is structurally sound,not leaking and if a Certificate of Compliance indicating that the tank is less than 20 years old is available. ND explain: Observation of sewage backup or breakout or high static water level in the distribution box is due to broken or obstructed pipe(s)or due to a broken,settled or uneven distribution box. The system will pass inspection if(with approval of Board of Health). broken pipe(s)are replaced obstruction is removed distribution box is leveled or replaced. ND explain The system required pumping more than four times a year due to broken or obstructed pipe(s).The system will pass inspection if(with approval of the Board of Health): broken pipe(s)are replaced obstruction is removed ND explain 2 ` •`Page 3 of 11 OFFICIAL INSPECTION FORM_NOT FOR VOLUNTARY ASSESSMENTS SUBSURFACE SEWAGE DISPOSAL SYSTEM INSPECTION FORM PART A CERTIFICATION(continued) Property Address: 500 Huckins Neck Road Centerville Owner: Edith White Date of Inspection: May 8,2004 C) Further Evaluation is Required by the Board of Health: Conditions exist which require further evaluation by the Board of Health in order to determine if the system is failing to protect public health, safety and environment. 1 System will pass unless Board of Health determines in accordance with 310 CMR 15.303(1)(b)that the system is not functioning in a manner which will protect public health,safety and the environment: Cesspool or privy is within 50 feet of a surface water Cesspool or privy is within 50 feet of a bordering vegetated wetland or a salt marsh 2) System will fail unless the Board of Health(and public water supplier,if any)determines that the system is functioning in a manner that protects the public health,safety,and environment The system has a septic tank and soil absorption system(SAS)and the SAS is within 100 feet of a surface water supply or tributary to a surface water supply. The system has a septic tank and SAS and the SAS is within a Zone 1 of a public water supply. The system has a septic tank and SAS and the SAS is within 50 feet of a private water supply well. The system has a septic tank and SAS and the SAS is less than 100 feet but 50 feet or more from a private water supply well**. Method used to determine distance **This system passes if the well water analysis,performed by a DEP certified laboratory, for coliform bacteria and volatile organic compounds indicates that the well is free from pollution from that facility and the presence of ammonia nitrogen and nitrate nitrogen is equal to or less than 5 ppm,provided that no other failure criteria are triggered. A copy of the analysis must be attached to this form 3) OTHER 3 Page 4 of 11 OFFICIAL INSPECTION FORM_NOT FOR VOLUNTARY ASSESSMENTS SUBSURFACE SEWAGE DISPOSAL SYSTEM INSPECTION FORM PART A CERTIFICATION(continued) Property Address: 500 Huckins Neck Road Centerville Owner: Edith White Date of Inspection: May 8,2004 D)System Failure Criteria applicable to all systems: You must indicate either"yes" or"no"to each of the following for all inspections: I have determined that one or more of the following failure conditions exist as described in 310 CMR 15.303. The basis for this determination is identified below. The Board of Health should be contacted to determine what will be necessary to correct the failure. yes no X Backup of sewage into facility or system component due to overloaded or clogged SAS or cesspool. X Discharge or ponding of effluent to the surface of the ground or surface waters due to an overloaded or clogged SAS or cesspool. X Static liquid level in the distribution box above outlet invert due to an overloaded or clogged SAS or cesspool. X Liquid depth in cesspool is less than 6"below invert or available volume is less than 1/2 day flow. X Required pumping more than 4 times in the last year NOT due to clogged or obstructed pipe(s).Number of times pumped X Any portion of the SAS,cesspool or privy is below high groundwater elevation. X Any portion of cesspool or privy is within 100 feet of a surface water supply or tributary to a surface water supply. X Any portion of a cesspool or privy is within a Zone 1 of a public well X Any portion of a cesspool or privy is within 50 feet of a private water supply well X Any portion of a cesspool or privy is less than 100 feet but greater than 50 feet from a private water supply well with no acceptable water quality analysis.(This system passes if the well water analysis, performed by a DEP certified laboratory, for coliform bacteria and volatile organic compounds indicates that the well is free from pollution from that facility and the presence of ammonia nitrogen and nitrate nitrogen is equal to or less than 5 ppm,provided that no other failure criteria are triggered. A copy of the analysis must be attached to this form) No (Yes/No)The system fails. I have determined that one or more of the above failure criteria exist as described in 310 CMR 15.303,therefore, the system fails.The system owner should contact the Board of Health to determine what will be necessary to correct the failure. E)Large Systems: To be considered a large system the system must serve a facility with a design flow of 10,000 gpd to 15,000 gpd You must indicate either"yes"or"no"to each of the following: (The following criteria apply to large systems in addition to the criteria above) yes no the system is within 400 feet of a surface drinking water supply the system is within 200 feet of a tributary to a surface drinking water supply the system is located in a nitrogen sensitive area(Interim Wellhead Protection Area-IWPA)or a mapped Zone II of a public water supply well. If you have answered"yes"to any question in Section E the system is considered a significant threat,or answered "yes" in section D above the large system has failed.The owner or operator of any large system considered a significant threat under section E or failed under section D shall upgrade the system in accordance with 310 CMR 15.304.The system owner should contact the appropriate regional office of the Department. 4 r .'Page 5 of 11 OFFICIAL INSPECTION FORM_NOT FOR VOLUNTARY ASSESSMENTS SUBSURFACE SEWAGE DISPOSAL SYSTEM INSPECTION FORM PART B CHECKLIST Property Address: 500 Huckins Neck Road Centerville Owner: Edith White Date of Inspection: May 8, 2004 Check if the following have been done: You must indicate either"Yes" or"No"as to each of the following: Yes No Y _ Pumping information was provided by the owner,occupant or Board of Health. N Were any of the system components pumped out in the last two weeks? Y _ Has the system received normal flows in the previous two week period? N Have large volumes of water been introduced to the system recently or as part of this inspection? Y _ Were as built plans of the system obtained and examined?(If they were not available as N/A) Y _ Was the facility or dwelling inspected for signs of sewage back-up? Y _ Was the site inspected for signs of breakout? including Y _ Were all system components,exeluding the SAS. located on site? Y Were the septic tank manholes uncovered,opened,and the interior of the septic tank inspected for the condition of the bales or tees,material of construction,dimensions,depth of liquid,depth of sludge and depth of scum.? Y _ Was the facility owner(and occupants,if different from owner)provided with information on the proper maintenance of subsurface disposal systems? For information on the proper maintenance of subsurface disposal systems please go to: WWW.ECO-TECH.US The size and location of the Soil Absorption System(SAS)on the site has been determined based on: Y _ Existing information.For example,Plan at the Board of Health. Y _ Determined in the field(if any of the failure criteria related to part C is at issue,approximation of distance is unacceptable) [310 CMR 15.302(3)(b)] 5 Page 6 of 1 I OFFICIAL INSPECTION FORM_NOT FOR VOLUNTARY ASSESSMENTS SUBSURFACE SEWAGE DISPOSAL SYSTEM INSPECTION FORM PART C SYSTEM INFORMATION Property Address: 500 Huckins Neck Road Centerville Owner: Edith White Date of Inspection: May 8,2004 FLOW CONDITIONS RESIDENTIAL Number of bedrooms(design): 6 Number of bedrooms(actual): 6 DESIGN flow based on 310 CMR 15.203 (for example: 110 gpd x#of bedrooms): 660 gpd. Number of current residents 2 Does the residence have a garbage grinder(yes or no): no Is laundry on a separate sewage system(yes or no): no :(If yes, separate inspection requiredl Laundry system inspected (yes or no): n/a Seasonal use(yes or no): no Water meter readings, if available(last two year's usage(gpd): 229 gpd Sump Pump(yes or no): no Last date of occupancy: current COMMERCLA L/INDUSTRIAL: Type of establishment: Design flow(based on 310 CMR 15.203):: gpd Basis of design flow(seats/persons/sgft/etc.): Grease trap present: (yes or no)_ Industrial waste holding tank present: (yes or no): Non-sanitary waste discharged to the Title 5 system: (yes or no) Water meter readings,if available: Last date of occupancy/use:_ OTHER: (Describe): GENERAL INFORMATION PUMPING RECORDS Source of information: System not pumped in recent past(Owner) Was system pumped as part of the inspection: (yes or no) No If yes,volume pumped: gallons--How was quantity pumped determined? Reason for pumping: TYPE OF SYSTEM: X Septic tank,distribution box, soil absorption system Single cesspool Overflow cesspool Privy Shared system(yes or no)(if yes, attach previous inspection records,if any) Innovative/Alternate technology. Attach a copy of the current operation and maintenance contract(to be obtained from system owner) Tight Tank Attach a copy of the DEP approval Other(describe) APPROXIMATE AGE of all components,date installed(if known)and source of information: Age: 2+years Certificate of Compliance issued 2/19/02 (BOH permit#2001-433) Were sewage odors detected when arriving at the site: (yes or no) no 6 .'Page 7 of 11 OFFICIAL INSPECTION FORM_NOT FOR VOLUNTARY ASSESSMENTS SUBSURFACE SEWAGE DISPOSAL SYSTEM INSPECTION FORM PART C SYSTEM INFORMATION(continued) Property Address: 500 Huckins Neck Road Centerville Owner: Edith White Date of Inspection: May 8, 2004 BUILDING SEWER_(Locate on site plan) Depth below grade: 2 ft Material of construction:_cast iron X 40 PVC other(explain) Distance from private water supply well or suction line 20+ Comments: (on condition of joints,venting,evidence of leakage,etc.) Sewer is vented through roof and appears structurally sound with no evidence of leakage or backup into dwelling_ SEPTIC TANK:Yes (locate on site plan) Depth below grade: 10 inches Material of construction: X concrete_metal_fiberglass_polyethylene _other(explain) If tank is metal, list age_ Is age confirmed by Certificate of Compliance_(yes or no):_(attach a copy of certificate) Dimensions: 10.5 ft x 5 ft x 5 ft(1500 gallon) Sludge depth: 3 in Distance from top of sludge to bottom of outlet tee or baffle: 31 in Scum thickness: 2 in Distance from top of scum to top of outlet tee or baffle: 9 in Distance from bottom of scum to bottom of outlet tee or baffle: 13 in How dimensions were determined: Probe to ton of tank Comments: (on pumping recommendations,inlet and outlet tee or baffle condition, structural integrity, liquid levels as related to outlet invert,evidence of leakage,etc.): Pumping not required at this time but maintenance pumping is recommended everV2years Liquid level at outlet invert.Tank and tees appear structurally sound and functioning as intended No evidence of leakage in or out GREASE TRAP: none (locate on site plan) Depth below grade: Material of construction:_concrete_metal_fiberglass_polyethylene other(explain) Dimensions: Scum thickness: Distance from top of scum to top of outlet tee or baffle: Distance from bottom of scum to bottom of outlet tee or baffle:_ Date of last pumping: Comments: (on pumping recommendations, inlet and outlet tee or baffle condition, structural integrity, liquid levels as related to outlet invert,evidence of leakage,etc.): 7 Page 8 of 11 OFFICIAL INSPECTION FORM_NOT FOR VOLUNTARY ASSESSMENTS SUBSURFACE SEWAGE DISPOSAL SYSTEM INSPECTION FORM PART C SYSTEM INFORMATION(continued) Property Address: 500 Huckins Neck Road Centerville Owner: Edith White Date of Inspection: May 8, 2004 TIGHT OR HOLDING TANK: none (Tank must be pumped at time of inspection)(locate on site plan) Depth below grade: Material of construction:_concrete_metal _fiberglass_polyethylene_other(explain) Dimensions: Capacity: gallons Design flow: _gallons/day Alarm present(yes or no):_ Alarm level:_ Alarm in working order(yes or no):_ Date of last pumping: Comments:(condition of inlet tee,condition of alarm and float switches,etc.) DISTRIBUTION BOX: Yes (if present must be opened)(locate on site plan) Depth of liquid level above outlet invert: at outlet inverts Comments:(note if box is level and distribution to outlets is equal,any evidence of solids carryover,any evidence of leakage into or out of box,etc.) D-box appears structurally sound with no evidence of leakage in or out.Effluent level at outlet inverts No solids in tank. PUMP CHAMBER: none (locate on site plan) Pumps in working order: (yes or no) Alarms in working order: (yes or no) Comments(note condition of pump chamber,condition of pumps and appurtenances,etc.): 8 Page 9 of 11 OFFICIAL INSPECTION FORM_NOT FOR VOLUNTARY ASSESSMENTS SUBSURFACE SEWAGE DISPOSAL SYSTEM INSPECTION FORM PART C SYSTEM INFORMATION(continued) Property Address: 500 Huckins Neck Road Centerville Owner: Edith White Date of Inspection: May 8, 2004 SOIL ABSORPTION SYSTEM(SAS): Yes (locate on site plan;excavation not required) If SAS not located,explain why: Type: _leaching pits,number _leaching chambers,number X leading galleries,number I _leaching trenches,number,length _leaching fields,number,dimensions _overflow cesspool,number —innovative/alternate system Type/name of Technology Comments: (note condition of soil, signs of hydraulic failure,level of ponding,damp soil,condition of vegetation,etc.) Soils above leaching gallery appeared unsaturated. No evidence of surface ponding,breakout,lush vegetation or other evidence of hydraulic failure was observed. Leaching galle!y contained 3 inches of effluent. CESSPOOLS: none (cesspool must be pumped at time of inspection)(locate on site plan) Number and configuration: Depth-top of liquid to inlet invert: Depth of solids layer: Depth of scum layer: Dimensions of cesspool: Materials of construction: Indication of groundwater inflow(yes or no): Comments: (note condition of soil, signs of hydraulic failure,level of ponding,condition of vegetation, etc.): PRIVY: none (locate on site plan) Materials of construction: Dimensions:_ Depth of solids: Comments(note condition of soil, signs of hydraulic failure,level of ponding,condition of vegetation, etc.): 9 Page 10 of 11 OFFICIAL INSPECTION FORM_NOT FOR VOLUNTARY ASSESSMENTS SUBSURFACE SEWAGE DISPOSAL SYSTEM INSPECTION FORM PART C SYSTEM INFORMATION(continued) Property Address: 500 Huckins Neck Road Centerville Owner: Edith White Date of Inspection: May 8,2004 SKETCH OF SEWAGE DISPOSAL SYSTEM: Provide a sketch of the sewage disposal system including ties to at least two permanent reference landmarks or benchmarks.Locate all wells within 100'(Locate where public water supply enters the building) HUCKINS NECK ROAD LOCATIONS LEACHING 0 1 oa o 05 o GALLERY A g C I 19 ft 43 ft 2 25 ft 48 ft 3 39 ft 23 Ft 4 38 ft 35 ft 3 Z 5 49 ft 33 ft D-BOX ❑ o SEPTIC LU TANK 3I B A C EXISTING DWELLING # 500 NOT TO SCALE 10 'Page 11 of 11 OFFICIAL INSPECTION FORM_NOT FOR VOLUNTARY ASSESSMENTS SUBSURFACE SEWAGE DISPOSAL SYSTEM INSPECTION FORM PART C SYSTEM INFORMATION(continued) Property Address: 500 Huckins Neck Road Centerville Owner: Edith White Date of Inspection: May 8, 2004 SITE EXAM Slope Surface water Check Cellar Shallow wells Estimated Depth to ground water: 7+ feet Please indicate(check)all methods used to determine high ground water elevation: Obtained from system design plans on record-If checked. date of design plan reviewed X Observed Site(abutting property/observation hole within 150 feet of SAS) Checked with local Board of health-explain: Checked local excavators,installers-attach documentation) Accessed USGS database You must describe how you established the high ground water elevation. Using a surveying instrument I determined the water level in an adjacent wetland to be 7.04 feet below the bottom of the leaching gallery. Applying a groundwater adjustment of 4.30 feet(Index well Al W-247 Zone C, April 2004 reading=23.9)indicates that the leaching gallery is 2.74 feet above adjusted high groundwater. 11 .00 ry ! er, — � No.� r-q �� 'r `'�� . = �. Fee � V THE COMMONWEALTH OF MASSACHUSETTS Bntered in computer: • Yes PUBLIC HEALTH DIVISION -TOWN OF BARNSTABLE., MASSACHUSETTS ZIpplicatton for 0iopo0al OpOtem Congtruction Permit Application for a Permit to Construct( )Repair( )Upgrade( )Abandon( ) wtomplete System ❑Individual Components Location Address or Lot No.500 Huckins Neck Road Owner's Name,Address and Tel.No.Edna McManus Centerville,Mass.02632 500 Huckins Neck Road Assessor'sMap/Parcel y 2 0 a Centerville,Mass.02632 Installer's Name,Address,and Tel.No. 5 0 8—7 7 5—3 3 3 H Designer's Name,Address and Tel.No.5 0 8—7 7 5—3 3 3 H J.P.Macomber & Son Inc. J.P.Macomber & Son Inc. Box 66 Centerville,Mass.02632' Box 66 Centerville,Mass.02632 Type of Building: Dwelling XXNo.of Bedrooms 6- Lot Size sq.ft. Garbage Grinder( ) Other Type of Building No.of Persons Showers( ) Cafeteria( ) Other Fixtures Design Flow 6 7 7 gallons per day. Calculated daily flow 6 X 1 1 0=6 6 0 gallons. Plan Date Number of sheets Revision Date Title Size of Septic Tank Type of S.A.S. Description of Soil T c)amy homy -sand to f i no cans Nature of Repairs or Alterations(Answer w na licable)Omitting cesspools.Installing 1 -1500 gallon tank,' o & m ' aee{{ ' v�D laseinspctea: 1 ` 4 Agreement: The undersigned agrees to ensure the construction and maintenance of the afore described on-site sewage disposal system in accordance with the provisions of Title 5 of the Environmental Code and not to place the system in operation until a Certifi- cate of Compliance has been iss d by s oar f He th. 01-7 Signed ° Date 6/2 5/01, Application Approved by Date Z d Application Disapproved Ur the following reasons Permit No. ,Y 3 3 Date Issued Z 7 6 ' Pit l��I ,, . �j i.r ` ♦., .,, _� i;' _ .- �:� ,� •-- No.' x / ':4 33 "� u._«n _ Fee 5 0.0 0' ,Y r� �- . Entered in computer: r T&COMI� ONWEAA OF MAS�ACFfUSETTS Yes ' •'�:. : - { • f PUBLIC HEALTH DIVISION =TO N OF BARNSTABLEa MASSACHUSETTS 2p0rication for B.i5p,05al bpztem Conotruction Permit Application for aPermit to Construct( )Repair( )Upgrade( )Abandon( ) Witomplete System ❑Individual Components Location Addres's or Lot No.5 0 0, Huckins Neck Road Owner's Name,Address and Tel.No.Rdna McManus -�,�Centerville,Mass.02632 500 "Huckins Neck Road i Assessor's Map/Parcel ' �• �1 t Centerville,Ma -s,.02632 y Installer's Name,Address,and Tel.No. 5 0 8—7 7 5—3 3 3 Designer's Name,Address and Tel No.5 0 8—7 7 5—3 3 3 8 J.P.Macollber & Son Inc,. J.P.Macomber & Son Inc. I Box 66 Centerville.Mass.02632 Box 66 CentervilleMass.02632 Type of Building: Dwelling XXNo.of Bedrooms 67 Lot Size sq.ft. Garbage Grinder( ) Other; Type of Building No.of Persons Showers( ) Cafeteria( ) Other Fixtures w Design Flow 6 7 7 gallons per day. Calculated daily flow 6 X 1 1 0=6 6 0 gallons. Plan Date Number of sheets Revision Date Title — Size of Septic Tank Type of S.A.S. Description of Soil l LoAmv hori4mv ganoi to f l ne sand e _ v .�tyw Nature of R airs or Alterations(Answe when applicable) cesspools.Installing 1-1500 gallon tin -1000 Mallon pump chamber with pump & floatst. li ht t&/alarm in ."5-500 gallon leaching chi*mbers packed ' - of 1 " 'stone. Date las in ected: C, ('t, o4jeA� Agreement: + The uni ersigned agrees to`ensure the construction and maintenance of the,afore described on-site sewage disposal system in accordance,with the provisions of Title 5 of the Environmental Code and not to place the system,in operation until a Certifi- �, cate of Compance has been iss d by s -oar f He Ith. V Signed Date 6/2 5/fl 1 } > Application Approved by C.1 Date:jZ Z 7 6 M x Application Disapproved r the following reasons ( Permit No. y 3 3 Date Issued 1 16 t Yi --------------------------------------- THE COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, MASSACHUSETTS Certificate of Compliance x,� ' THIS IS TO CERTIFY, that the On-site Sewage Disposal System Constructed( )Repaired( )Upgraded f�X? Abandoned( )by J.P.Macomber & Son Inc. at 500 HuckinS Neck Road Centerville,Mass. has been construf ted in`accordance with the provisions of Title 5 and the for Disposal System Construction Permit No. " Y3J dated 6 "- Z 7-0 '# J.P.Macomber & Son Inc. J.P.Macomber & Son Inc. Installer Designer The issuance of this permit shall not be construed as a guarantee that the system..�wi'will filr1c on as designed� Date hl!)2- Inspector r7 —f--t'�.�✓ ! f ' "'�a'f�.�.�'- -----------------------------------Fee ----=�.33-'dZ�` ---------------Fee 50.00 No. t THE COMMONWEALTH OF MASSACHUSETTS PUBLIC HEALTH DIVISION - BARNSTABLE,. MASSACHUSETTS Miopo!6a[ 6potern Conotruction Permit Permission is hereby granted to Construct( )Repair( )Upgrade(XX)Abandon( ) '.1 ' Systemlocatedat 500 Huckins Neck Road Centerville,Mass. and as described in the above Application for Disposal System Construction Permit.The applicant recognizes his/her duty to comply with Title 5 and the following local provisions or special conditions. Provided:Construction m st be co pleted within three years of the date of thi e. 't. --Date:Date: X �� Approved by � 0 TOWN OF BARNSTABLE CC LOCATION J 0 O C A/,i S Ale CA SEWAGE # )001 "y 3 VILLAGE C e W i eK V l L L ASSESSOR'S MAP & LOT 33"OZ�1 INSTALLER'S NAME&PHONE NO. T/o A4 A C A M IS<f g 1~ S 0 SEPTIC TANK CAPACITY D 00 LEACHING FACILITY: (type) i9 w eZV S (size) S-/ x 3 NO.OF BEDROOMS G BUILDER OR OWNER c lMan�� PERMITDATE: � � COMPLIANCE DATE:I igfA z Separation Distance Between the: Maximum Adjusted Groundwater Table to the Bottom of Leaching Facility Feet Private Water Supply Well Leaching Facility (If any wells exist on site or within 200 feet of leaching facility) Feet Edge of Wetland and Leaching Facility(If any wetlands exist within 300 feet of leaching facility) Feet Furnished by f � W� - � - , � �. � �`� �'� � ' � �� . �3 � ' � ° f �- � � �,�� ' 1 ' TOWN OF BARNSTABLE C LOCATION �0 0 110C k IAII Ale CA SEWAGE # _�00 "y 33 i t VILLAGE C e'A11'f K V 1 z L e �p ASSESSOR'S MAP & LOT INSTALLER'S NAME&PHONE NO. J-/: 44 A C a /M f3-e g t' 5 011 SEPTIC TANK CAPACITY •D�® LEACHING FACILITY: (type) Pia eLV S (size) ��f NO. OF BEDROOMS BUILDER OR OWNER Mc ALI-) PERMITDATE: 0,12 - kb I -COMP LIANCE, DATE:JJgb Z Separation Distance Between the: I j Maximum Adjusted Groundwater Table to the Bottom of Leaching Facility Feet Private Water Supply Well Leaching Facility (If any wells exist on site or within 200 feet of leaching facility) Feet Edge of Wetland and Leaching Facility (If any wetlands exist within 300 feet of leaching facility) 4I Feet Furnished by ' f 3 / i COMMONWEALTH OF MASSACHUSETTS U.S DEPARTMENT OF HOUSING & URBAN DEVELOPMENT OFFICE OF FAIR HOUSING & EQUAL OPPORTUNITY HUD Case No. 01-03-0411-8 --------------------------------------------------------- TRANQUILITY HOUSES, INC. and ANSWER TO EDITH WHITE of TRANQUILITY COMPLAINANTS' HOUSES, INC., COMPLAINT. Complainants, V. TOWN OF BARNSTABLE; and THOMAS A. McKEAN, DIRECTOR OF ) PUBLIC HEALTH OF TOWN OF ) BARNSTABLE, ) Respondents., ) --------------------------------------------------------- The Respondents, the TOWN OF BARNSTABLE and THOMAS A. McKEAN, DIRECTOR OF PUBLIC HEALTH OF TOWN OF BARNSTABLE, for their Answer to Complainants' Complaint, show as follows: As to COMPLAINANTS: 1) Respondents lack knowledge or information sufficient to form a belief as to the truth of the averments in paragraph 1" of Complainants' Complaint. As to OTHER AGGRIEVED PERSONS: 2) No answer is necessary. As to ALLEGED TO HAVE OCCURRED OR IS ABOUT TO OCCUR: 3) Respondents DENY the averments contained in paragraph designated "3" of Complainants' Complaint. [2003-0216\ans-hudtranq]1 1 ti As to ALLEGED VIOLATION OCCURRED BECAUSE OF: 4) Neither admit nor deny the averments set forth in paragraph "4" of Complainants' Complaint by reason that said Respondents have insufficient information to form a belief as to the truth of the averments therein. As to CITY & STATE WHERE ALLEGED DISCRIMINATION OCCURRED: 5) Respondents DENY the averments contained in paragraph designated "5" of Complainants' Complaint. As to RESPONDENT(S): 6 ADMIT onlyso much of the averments set forth in paragraph rah 6 of p 9 p Complainants' Complaint where it lists the names of several departments and employees of the Town but DENY all the remaining allegations contained in paragraph designated "6" of the Complainant's Complaint. As to COMPLAINANTS' STATEMENT OF FACTS REGARDINGTHE ALLEGED VIOLATION: 7) DENY the averments set forth in the introductory paragraph of"7" and each of each sub-paragraphs marked 1." through "3." of Complainants' Complaint together with its sub-paragraph not designated therein, except for the following statement which the Respondents' ADMIT: "[t]hey [Complainants] received a notice dated July 30, 2003 ordering them to remove the two bedrooms located in the basement on or before Monday, September 1, 2003. They were advised that failure to comply could result in a fine of up to $100.00 and that each day's failure to comply ... would constitute a separate violation. An appeal was filed, and in a recent hearing the Board of Health postponed the order until January 1, 2004." [2003-0216\ans-hudtranq]1 2 8) Respondents DENY the truth of the averments in paragraph "8" of Complainants' Housing Discrimination Complaint. 9) No answer is necessary. 10) The averments contained in paragraph "10" of Complainants' Complaint call for a conclusion of law and, therefore, no answer is necessary. FIRST AFFIRMATIVE DEFENSE The Complainants' claims fail to state a claim upon which relief can be granted and, therefore, Complainants' Complaint should be dismissed. SECOND AFFIRMATIVE DEFENSE The alleged conduct complained of herein is explicitly exempt under the Federal Fair Housing Law, 42 U.S.0 Sections 3601-3619. THIRD AFFIRMATIVE DEFENSE Complainants' property is located in a well protection overlay district. Under the State Environmental Code, 310 CMR 15.214, Complainants are only permitted to have a maximum of five bedrooms. The Board of Health has permitted six bedrooms. FOURTH AFFIRMATIVE DEFENSE Cape Cod's groundwater is the sole source of water for domestic and for most commercial and industrial uses. Over 90 percent of the homes on Cape Cod use on- site subsurface systems for disposal of wastewater. Numerous public water-supply test results show a distinct correlation between housing density and nitrogen (nitrate) concentration in the well water. The Town has passed an ordinance to protect the groundwater, ARTICLE XLVII: REGULATION OF WASTEWATER DISCHARGE, which would limit the number of bedrooms in the Complainants' home to three bedrooms. The Board of Health has allowed Complainants to maintain six bedrooms. [2003-0216\ans-hudtranq]1 3 SIXTH AFFIRMATIVE DEFENSE The Board of Health has provided reasonable accommodation to the Complainants by allowing them to continue to maintain six bedrooms rather than the four that would be allowed under the current state law and the three that would be allowed under the current local regulations. The Board of Health has further provided reasonable accommodation by giving the Complainants until January 1, 2004 to remove the two additional unpermitted bedrooms. SEVENTH AFFIRMATIVE DEFENSE The records of the Barnstable Assessing Department indicate that the premises contain a total of four bedrooms. Upon information and belief, Complainants never obtained the proper building permits to expand the number of bedrooms on the premises from four bedrooms to eight bedrooms. EIGHTH AFFIRMATIVE DEFENSE Upon information and belief, the two basement bedrooms violate the State Building Code by failing to provide adequate means of egress. Upon information and belief, the Complainants have jeopardized the health and safety of the residents of Tranquility House by continuing to allow residents to reside in said basement apartments. NINTH AFFIRMATIVE DEFENSE The Board of Health has consistently applied and enforced the State Environmental Code and its local groundwater protection regulations to single-family residences throughout the Town. [2003-0216\ans-hudtranq]1 4 TENTH AFFIRMATIVE DEFENSE Respondents have reasonably applied the town and state's environmental regulations to the Complainants' property. ELEVENTH AFFIRMATIVE DEFENSE Subject matter jurisdiction is lacking and, therefore, Complainants' claims should be dismissed. TWELFTH AFFIRMATIVE DEFENSE At all times relevant hereto, the Respondents have acted without malice to Complainants and their actions as related to the Complainants are privileged by virtue of acting reasonably and in good faith within the scope of their authority. THIRTEENTH AFFIRMATIVE DEFENSE All of the actions taken by Respondents with respect to Complainants were justified for legitimate non-discriminatory administrative reasons. FOURTEENTH AFFIRMATIVE DEFENSE The Complainants' claims are barred by the doctrine of estoppel. FIFTEENTH AFFIRMATIVE DEFENSE The Complainants' claims are barred by waiver. I declare under the penalty of perjury that the foregoing statements are true and correct to the best of my knowledge and belief. Thomas A. McKean, Director Public Health, Town of Barnstable WHEREFORE, the Respondents respectfully pray for judgment against the Complainants as follows: [2003-0216\ans-hudtranq]1 5 617-994-8300 TO: . ARTHUR MANSFIELD DIRECTOR OF HOUSING Tranquility Houses, Inc. 500 Huckins Neck Road Centerville, MA 02632 TO: EDITH WHITE for TRANQUILITY HOUSES, INC. P.O. Box 803 Pocasset, MA 02559 CERTIFICATE OF SERVICE Barnstable, ss: September 24, 2003. 1 hereby certify under the pains and penalties of perjury that I caused to be served by first-class delivery, postage prepaid, a copy of the above document on the date written above. Claire Griffen, Legal Assistant Town of Barnstable [2003-0216\6ns-hudtranq]1 7 HOUSING DISCRIMINATION COMPLAINT CASE NUMBER: 01-03-0411-8 1. Complainants Tranquility Houses, Inc. c/o Arthur Mansfield, Director of Housing 500 Huckins Neck Road Centerville, MA 02632 Edith White Tranquility Houses, Inc. P.O. Box 803 Pocasset, MA 02559 2. Other Aggrieved Persons None. 3. The following is alleged to have occurred or is about to occur: Otherwise deny or make housing available. Failure to permit reasonable modification. Failure .to make reasonable accommodation. 4. The alleged violation occurred because of: Handicap. 5. Address and location of the property in question (or if no property is involved, the city and state where the discrimination occurred) : 500 Huckins Neck Road Centerville, MA 02632 6. Respondent(s) Town of Barnstable, MA Dept. of Health, Safety, & Environmental Services Public Health Division / 367 Main Street Hyannis, MA 02601 Thomas A. McKean, Director of Public Health Dept. of Health, Safety & Environmental Services Public Health Division N m W C7 4 � d s l i O U) f 01) W d OD h n LO e-1 n I w m LO LO N Q Ol O� N m e-1 a m ic f Qt tk --�ef:;e rR . u��'Zw!�/ `ice ✓� `�� \r�� tci-g Tlp\.o ol 4 J-c.�e � , ✓� �rce-e- � `17 ..la �-,-� Atv 60, vz beditag —7rv-:- Stanton, David From: McKean, Thomas Sent: Monday, May 23, 2005 5:27 PM To: Stanton, David; Weil, Ruth Subject: 500 Huckins Neck F.Y.I. Tom Rugo called me on Friday. He stated to me that the above-referenced property was recently sold as a 4 bedroom home. He has the realtor advertisement to prove it. Also, the assessor's records listed it as a 4 bedroom. Also, the signed agreement with the Town Attorney clearly indicates that the home will be converted back to a 4 bedroom dwelling. Mr. Rugo reminded me that he had filed a lawsuit against the Town in the past on this issue. 9 I informed Mr. Rugo that the six plus rooms located on the first floor appeared to me to have always been there. The basement rooms were built sometime afterward without building permits, as evidenced by the improper construction observed there. I told him that I would check with the Assessor's Office to see if anyone conducted a walk-thru in the past and counted the actual number of bedrooms. f 1 05/10/2005 11:05 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL 002 UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Office of Fair Housing and Equal opportunity oQPPIMENTO,,yOGN aG II II II g�= oe 9egIV OEj�� Conciliation Agreement under Title VIII of the Civil Rights Act of 1968 as amended By the Fair Housing Amendments Act of 1988 between The United States Department of Housing and Urban Development and F Tranquility Houses, Inc. /Edith White (Complainants) and Town of Barnstable et al . (Respondents) Case Number: 01-03-0411-8 (Fair Housing Actj 05/10/2005 11:05 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL 003 #01-03-0411-8 CONCILIATION AGREEMENT Preamble The Parties to this Conciliation Agreement (hereinafter collectively"the Parties") are Complainants, Tranquility Houses, Inc. and Edith White (hereinafter"Complainants"), the Town of Barnstable and Director of Health Thomas McKean, (hereinafter".Respondents"), and the United States Department of Housing and Urban Development (hereinafter"the Department"). On September 12, 2003, Complainants filed a complaint with the Department challenging an order of the Barnstable Board of Health which required the reduction in the number of bedrooms from eight to six based upon state and local environmental regulations. Complainant alleged that Respondents were denying persons with disabilities full access and enjoyment to the subject property. The Complainants further alleged the land use and zoning ordinances of the Town were being applied in a discriminatory manner and that Respondents refused to grant a reasonable accommodation. The Respondent answered by asserting Cape Cod's groundwater is the sole source of water for domestic and for most commercial and industrial uses. Over 90 percent of the homes on Cape Cod use on-site subsurface systems for disposal of wastewater. Numerous public water-supply test results show a distinct correlation between housing density and nitrogen (nitrate) concentration in the well water. Because the property is located in a groundwater protection overlay district, the state has limited the number of bedrooms on Complainants' property to four bedrooms. The Town's ordinance regulating wastewater discharge limits the number of bedrooms to three. The Respondent, Board of Health,further alleged that it has required numerous owners of single-family residences within the town of Barnstable to remove bedrooms when the number of bedrooms exceeded the number allowed under the state and local regulations. The Respondent further answered by stating that it provided reasonable accommodation to the Complainants by allowing them to continue to maintain six bedrooms rather than the four that would be allowed under the current state law and the three that would be allowed under the current local regulations. The Board of Health has further alleged that it provided reasonable accommodation by giving the Complainants until January 1, 2004 to remove the two additional unpermitted bedrooms. The Complainants purchased residential property which they lease to groups of men and women in recovery from alcoholism and drug addiction. The complaint was filed under the Fair Housing Act, 42 U.S.C. §§3601-19 (hereinafter "the Act"). The Parties agree that it is in their best interests to avoid further administrative proceedings and the potential for protracted and costly legal proceedings. Accordingly, the Parties enter into this Conciliation Agreement in order to resolve their dispute. 05/10/2005 11:06 FAX 508 862 4724 TORN OF BARNSTABLE LEGAL 004 #01-03-0411-8 I. GENERAL PROVISIONS 1. It is understood that the Parties enter into this Agreement freely and voluntarily, and that no party has been coerced, intimidated, threatened, or in any way forced to become a party to this agreement. 2. This Agreement will become effective as of the date signed by the HUB Director of the New England Office of Fair Housing and Equal Opportunity. The HUB Director, acting on behalf of the Secretary of the Department of Housing and Urban Development (hereinafter"the Secretary"), retains authority to approve or disapprove this Agreement. 3. While Complainants assert in their complaint that Respondents have violated the Fair Housing Act, Respondents have denied any wrongdoing or that any such evidence exists. It is understood that this Agreement does not constitute evidence of a determination by the Department of any violation of the Fair Housing Act or any other federal statute nor constitutes an admission of any wrong doing. Respondents agree that the Secretary has the authority to enforce the Fair Housing Act. 4. In exchange for the Respondents' performance of the provisions of this Agreement, the Complainants hereby waive, release and covenant not to file a civil action against the Respondents,or to under take further administrative action against the Respondents with respect to the matters which were or which might have been alleged in the subject Fair Housing complaint. This release and waiver applies ' to the complaint existing between the signatories to this Agreement, and applies to any other complaints filed by Complainants which may be pending with the Department, including all matters pending up to the effective date of this Agreement. Additionally, the Department agrees not to take any further action with respect to the complaint or any other complaints tiled by the Complainants which may be pending with the Department. 5. This Agreement does not in any way limit or restrict the Department's authority to investigate and act upon any future complaints involving Respondents. 6. It is understood that, according to Section 810(b) (4) of the Act,this Agreement shall become a public document. The Department, however, shall hold confidential all information of a personal or financial nature, concerning the Parties to this Agreement, and not contained in the body of this Agreement. (2003.0218\hudagme3l 2 05/10/2005 11:06 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL 0 005 #01-03-0411-8 II. SETTLEMENT 1. The Parties to this agreement assent to the following and acknowledge that it constitutes the granting of a reasonable accommodation to the rules, practices, and policies of the Town of Barnstable with respect to Tranquility Houses, Inc. property located at 500 Huckins Neck Road in Centerville, Massachusetts. 2. As was stated in the original order of the Board of Health, the Parties agree the maximum number of bedrooms that will be allowed at the above-mentioned property is six (6) bedrooms. This constitutes a reasonable accommodation because under the current state environmental code the maximum number of permissible bedrooms is four and under the town's local ordinance the maximum number is three. To comply with this requirement, the Complainants agree as follows: a) Complainants shall use the six bedrooms on the first floor level only and no rooms in the basement level shall be used as bedrooms; or, b) Alternatively, if the Complainants want to convert the room located in the basement level adjacent to the community room into a bedroom, then Complainants may so do, provided that they first: 1. Modify the window located in the basement room so that it is able to open 20" by 24" without the use of special tools, 2. Provide a minimum five-foot opening between the two smallest bedrooms located on the first floor, thereby converting the two bedrooms into one bedroom; for a total of five bedrooms on the first floor; 3. Obtain all necessary town permits before commencing any construction. 3. The Complainants agree to provide a copy of its annual report to the Town of Barnstable Department of Regulatory Services, Health Division, every year. The report will state the number of residents that resided at the residential home, but will not include the names or the identities of the residents. 4. The Parties agree the reasonable accommodation (use of 6 bedrooms) granted to 500 Huckins Neck Road shall terminate if the property is not used for the Tranquility House program or a substantially similar program for persons with disabilities. (20M-0218Nuda9iaa3] 3 05/10/2005 11:06 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL 16006 401-03-0411-8 5. The Complainants agree all sober house residents_will execute an agreement or application to participate in the Tranquility House Program or a similar program at the property. 6. The complainants agree to withdraw the Federal Discrimination Complaint filed with the U. S. Dept..of HUD. As directed by this Agreement, any required certifications and documentation of compliance must be submitted to: Office of Fair Housing & Equal Opportunity US Department of Housing and Urban Development 10 Causeway Street Boston, MA 02222-1092 (Signatures on Page 5 follows) [2003-02i ftudagree3] 4 05/10/2005 11:06 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL 10007 #01-03-0411-8 SIGNATURES Oil Date G o usselI J. Ar !bald, Conciliator These signatures attest to the approval and acceptance of this Conciliation Agreement: For Tranquility House Inc. (Complainant): By: Date 11—114,e y. Edith White.(Complainant): By: Date E i9 Iiimplainant) !t For The Town of Barnstable, M ssachusetts (Respondents): By: Date John C. m, Town Manager By: _ Date I Thomas McKean, Director, Dept. of Regulatory SerhicA, Health Division For U.S. Dept. of HoWnZrDe pment (the Department): g Date 1 �`zew Y- arcella 0. Brown, Dire or New England HUD, Office of Fair Housing & Equal Opportunity [2003-0216\hudagree3] 5 r 1 sR y CERTIFIED MAIL: 7003 1680 0004 5458 2186 Town of Barnstable * Regulatory Services * snartsrnsLE. 9 MASS. g Thomas F. Geiler,Director �p 1639. ♦0 rFn 3+A Public Health Division Thomas McKean,Director 200 Main Street, Hyannis, MA 02601 Office: 508-862-4644 Fax: 508-790-6304 May 26, 2005 Dair Galo 500 Huckins Neck Road Centerville, MA 02632 You are scheduled to appear before the Board of Health at their next meeting scheduled on Tuesday June 14, 2005 @ 7:00 PM in the NTH Sel. Conference Room regarding the number of bedrooms observed at your property located at 500 Huckins Neck Road, Centerville. This is a legal document. It is advisable that you consult an attorney. If you cannot afford to consult an attorney, you should contact the nearest legal services office which is: Legal Services for Cape Cod& Islands, INC. 460 West Main Street, Hyannis, MA 02601 (508) 775-7020 PER ORDER OF THE BOARD OF HEALTH Thomas A. McKean Director of Public Health QAOrder letters\Sewage Violations\500 Huckins Neck order.doc 06/15/2004 11:12 5084205553 YANKEE SURVEY PAGE 03 1 s Qc) z yc 3 7� o - Z, lj Yj </0 G / / r /C. Z,v 5 (Al2 7/ O6a Z-o C 06/15/2004 12:50 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL 0 004 SARNSTA\BLE SS y1: COMMONWEALTH OF MASSACHUSETTS Barnstable Superior Court#04-137 Ki'-f'r, ° Clerk BARNSTABLE,ss Thomas R. Rugo, Nick Fitzgerald, Donald Summers, Richard Foster Plaintiff s, V. Town of Barnstable, Wayne Miller,M.D., Chairman of the Barnstable Board of Health, Sumner Kaufman,Barnstable Board of Health, Susan K. Rask,Barnstable Board of Health, aad: AMMENDED COMPLAINT CIVIL ACTION IN THE NATURE OF CERTIORARI 1. The plaintiff is a resident of Centerville,Barnstable County and resides at 19 Pondside Circle with his wife and two minor children.The Plaintiff abuts the residencelbusiness owned and operated by the defendant Edith White at 500 Huckins Neck Road, Centerville, Barnstable County, Massachusetts. 2. The subject property is a four bedroom, one story,ranch style residence as listed by the Barnstable Assessors Division on Map 233,parcel 29 and located at 500 Huckiris Neck Road, Centerville. (Exhibit 1)This residence is located in,a groundwater protection overlay District. �/ 3. The Defendants Wayne Miller,M.D., Sumner Kaufman and Susan K.Rask are �\ nlll/ members of the Barnstable Board of Health. 4. As a property located in a groundwater protection overlay District, 500 Huckins Neck Road, Centerville is subject to the Massachusetts Department of Environmental Protection Regulations,310 CMR 15.000 State Environmental Code,Title 5. These �- regulations require a property owner to be granted a variance from the appropriate regulating authority before exceeding more than 440 gallons of design flow per day per acre. 5. On June 25,2001 Joseph P. Macomber,Jr. filed an application fora disposal works construction permit on a form provided by the Barnstable Board of Health for the Repair of Failed Septic Systems Only. On this form the applicant wrongly noted that"There are no variances requested or needed"that the number of bedrooms was"6" and the town did not correct this error during the application process and issued a Certificate of A 06/15/2004 12:50 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL [j005 Compliance for the 660 gallon septic system on February 19, 2002. 6. The property is on record with the Barnstable Assessors Office as a 4 bedroom residence and continues to be as of this filing.There is no town record indicating that the property has been issued a variance to become a 6 bedroom residence.There is no legal �obasis to call 500 Huckins Neck Road a 6 bedroom residence. 'e 7. On July 11,2003 plaintiff Rugo wrote the defendant Town of Barnstable Building Commissioner Tom Perry and made concerns about the unlicensed lodging house located at 500 Huckins Neck Road,Centerville,Massachusetts. 8. On or about August 11 or 12,2003 Commissioner Perry wrote the plaintiff Rugo and stated"... According to the Board of Health the house has an approved septic system for six bedrooms. Because of this the owners have applied for a variance and have a hearing scheduled for August 19, 2001" 9. The plaintiff s never received notice of a hearing for a variance request by the owner of 500 Huckins Neck Road, Centerville and the Barnstable Board of Health never posted a request for a variance at 500 Huckins Neck Road, Centerville,Massachusetts. 10. ,On August 19, 2003 the Barnstable Board of Health approved an additional two bedrooms at 500 Huckins Neck Road,Centerville,Massachusetts.This action by the NBoard of Health was without notice to any of the abutters to 500 Huckins Neck Road Owl Centerville, Massachusetts and violated the Massachusetts Department of Environmental Protection Regulations, 310 CMR 15.000 State Environmental Code,Title 5, 11. This action is brought on the ground that the plaintiff's are aggrieved by certain erroneous action by the defendant by violating Massachusetts Department of Environmental Protection Regulations, 310 CMR 15.000 State Environmental Code,Title Limitations which states"No system Nitrogen Loading 5, and 310 CMR 15.214(l) g... Q serving new construction(an increase in the actual or design flow to any system above the existing approved capacity)in Nitrogen Sensitive Areas designated in 310 CMR 15.216 shall be designed to receive or shall receive more than 440 gallons of design flow per day per acre .... 12. This action is brought on the ground that the plaintiffs are aggrieved by certain erroneous action by the defendant by violating Massachusetts Department of Environmental Protection Regulations, 310 CMR 15.411 Process for SeeldMa, Variance From Local Approving Authorities. 1)The local authority shall review requests for variances as follows. i (a) Every request for a variance shall be in writing and shall make reference to the specific provision of 310 CMR 15:000 from which a variance is sought and a statement in compliance with 310 CMR 15.410. (b)No application for a variance shall be complete until the applicant has notified all abutters by certified mail at his/her expense at least ten days before the Board of 06/15/2004 12:51 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL Z 006 Health meeting at which the variance request will be on the agenda. The notification `shall reference the specific provisions of 310 CMR 15.000 from which a variance is sought, a statement of the standards set forth in 310 CMR 15.410 and the date,time and place where the application will be discussed. a copy of each variance shall be conspicuously posted.for 30 days following its issuance ...• This process was never adhered to and notice with proper service to the abutters was never made. 13. This action is brought on the ground that the plaintiff s are aggrieved by certain erroneous action by the defendant by violating the Barnstable Building code by allowing construction of bedrooms at 500 Huckins Neck Road without a town building permit. 14. This action is brought on the ground that the plaintiff is aggrieved by certain erroneous action by the defendant Town of Barnstable, and Wayne Miller, M.D., A 1Chairman of the Barnstable Board of Health, and members Kaufman and Rask,by approving the addition of two bedrooms at 500 Huckins Neck Road, Centerville, At Massachusetts on Tuesday August 19, 2003 in violation of Massachusetts Department of Environmental Protection Regulations, 310 CMR 15.214(1)Nitrogen Lo Limitations, 310 CMR 15.411 Process for Seeldn a Variance From Local Approving Authorities and 310.CMR 15.410 Variances- Standard of Review which states: (1) Local approving authorities and the Department may vary the application of any provisions of 310 CMR 15.000 with respect to any particular case except those listed in CMR 15.415.Variances shall be granted only when,in the opinion of the approving authority: (a) The person requesting a variance has established that enforcement of the provision of 310 CMR 15.000 from which a variance is sought would be manifestly unjust,considering all the relevant facts and circumstances of the individual case; and (b) The person requesting a variance has established that a level.of environmental protection that is at least equivalent to that provided under 310 CMR 15.000 can be achieved without strict application of the provision of 310 CMR 15.000 from which a variance is sought. (2) With regard to variances for new construction, enforcement of the provision from which a variance is sought must be shown to deprive the applicant of substantially all beneficial use of the subject property in order to be manifestly unjust. This process was never adhered to and notice with proper service to the abutters was never made. 06/15/2004 12:51 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL 007 S. This action is brought on the ground that the plaintiff is aggrieved by certain erroneous action by the defendant Town of Barnstable,when on or about January 27, 2004 the Town of Barnstable and the Barnstable Town Manager entered into a conciliation agreement with the New England office of the U-S. Department of Housing and Urban Development affirming the towns position that they had not discriminated against property owner Edith White by limiting her to six bedrooms and that the use of six bedrooms at 500 Huckins Neck Road shall terminate and revert to four bedrooms if the property is not used for the Tranquility House program(A half way house for substance abusers consisting of adult men, some of whom are convicted felons, including convictions for violent crimes such as armed robbery and assault and battery with a dangerous weapon.This housing arrangement places two men per room at a cost of $150.00 per week per person allowing for the house to gross up to $7,740.00 per month or$92,880.00 per year) or another similar program. SAID CONCILIATION AGREEMENT STATES IN PART: 2)"As was stated in the original order of the Board of Health,the Parties agree the maximum number of bedrooms that will be allowed at the above-mentioned property is six(6)bedrooms. This constitutes a reasonable accommodation because under state environmental code the maximum number of permissible bedrooms is four and under the tovn's local ordinance the maximum number is three. ... 4)The Parties agree the reasonable accommodation(use of 6 bedrooms)granted to 500 Huckins Neck Road shall terminate if the property is not used for the Tranquility House program or a substantially similar program for persons with disabilities" 16. This action is brought on the ground that the plaintiff is aggrieved by certain erroneous action by the defendant Town of Barnstable and Wayne Miller,M.D., Chairman of the Barnstable Board of Health, and members Kaufman and Rask,by approving the addition of two bedrooms at 500 Huckins Neck Road,Centerville, Massachusetts and therefore interfering with the plaintiff s right of quiet enjoyment of their property_ This quiet enjoyment has been disturbed by the defendants conduct which has allowed excessive noise to come from 500 Huckins Neck Road, Centerville, including excessive swearing and foul language from up to 12 residents who regularly congregate outside the home while smoking which is not allowed inside the rooming house thus causing a constant barrage of'indecent language to flow onto the plaintiff s property and heard by the plaintiffs and their children while playing on their swing set and during other times in the use of their property, excessive automobiles(10 or more) parked adjacent to the plaintiff's property and polluting the abutting wetland with run off and excessive nitrogen loading in the adjacent wetland,lake and pond. 17. The plaintiff s rights have been substantially harmed by the failure of the Board of Health to comply with the state regulations,the failure of the plaintiff s to receive notice ��Q, and thus provide an opportunity to be heard on the request for a variance to the State 06/15/2004 12:51 FAX 508 862 4724 TOWN OF BARNSTABLE LEGAL 1008 Environmental Code,Title 5. i 18. The defendant has caused substantial errors of law which are apparent on the record and adversely affect material rights of the plaintiff s.These errors have resulted in manifest injustice to the plaintiff s and have adversely affected the real interests of the general public. 19. Plaintiff Rugo learned about the action by the Town of Barnstable and the Board of Health when he visited the Barnstable Town office of the Board of Health on or about March 3, 2004 and asked to review the file for 500 Huckins Neck Road, Centerville. f 4� 20. On March 30, 2004 Plaintiff Ru90 asked the Barnstable Board of Health to rescind its MDefense: proval of 6 bedrooms at 500 Huckins Neck Road, Centerville.The Board denied this quest based on their then stated position that the Board never approved an increase of o bedrooms to six bedrooms at that location and that the Board recognized that operty as a pre-existing six bedroom residence. The Board failed to recognize that the wn contradicts that position in their conciliation agreement and in the towns answer to e discrimination complaint by White in that the town states in their Seventh Affirmative "The records of the Barnstable Assessing Department indicate that the premises _a�t ,..cc,,,�P 3,oATranmc T Tmnn ;rfnr*Tafson and belief. Complainants never containxLVLd.LV,.J-.,U4 obtained the proper building permits to expand the number of bedrooms on the premises from four bedrooms to eight bedrooms." WHEREFORE the plaintiff demands that an order issue to the Barnstable Board of Health directing them to certify up to this Honorable Court, a true, complete and perfect record of all proceedings before them with all reports,papers and transcripts of testimony of the hearing before them,if any there be,or in lieu thereof,a recital by them of a summary of all evidence considered to the end that any errors of law may be determined and corrected by this Court. The plaintiff further demands that the decision of the defendant Board of Health and Town Manager be quashed and reversed,that the property owner White be ordered to take down two of the six bedrooms at 500 Huckins Neck Road,that the defendant Board of Health acknowledge that 500 Huckins Neck Road is a four(4)bedroom residence and any departure from this requires a variance from the Board of Health.That the Conciliation Agreement between the Town of Barnstable and the U.S.Department of Housing and Urban Development be quashed and reversed based on the errors of law underlying the agreement;That the property owner White be ordered to apply for a building permit and variance for additional bedrooms exceeding the current legal four bedrooms; That the Town of Barnstable Board of Health comply with 310 CMR.15.000 State Environmental Code,Title 5 and for such other and further relief as law and justice may require, and for attorneys fees and costs. By the Plaintiff s 13y 4; gr Attorney, Town of Barnstable Legal Department -Town Attorneys' Office 367 Main Street, Hyannis MA 02601-3907 Inter-Office Memorandum Robert D. Smith, Town Attorney Office: 508-862-4620 Ruth J. Weil, 1 st Assistant Town Attorney Fax: 508-862-4724 T. David Houghton, Assistant Town Attorney Claire Griffen, Paralegal/Legal Assistant Claudette Bookbinder, Legal Clerk ALSO BY FAX: 508-790-6304 Date: June 15, 2004 To: Thomas McKean, Director, Board of Health From: Ruth J. Weil, 1st Asst. Town Atty. Subject: Thomas R. Ru o v. Board of Health J 9 , Barnstable Superior Ct. CA No. 04-137 Legal Ref. 2004-0046 ---------------------------------------------------------------------------------------------------------- Please see enclosed Summons and Complaint in the above-referenced matte. We will need your comments, paragraph by paragraph, ASAP, in order to ans- ( this complaint within the 20-day allowed time. Please return this to us at your earliest possible convenience. `) Thank you. RJW:cb encl. [2004-0046Unckeanmemo] 6�r-a 'X/� (TO PLAINTIFF'S ATTORNEY: PLEASE CIRCLE TYPE OF ACTION INVOLVED: CONTRACT TDRT MOTOR VEHICLE TORT E UITABLE.RELIEF OTHER �a (l VUMWxtfVtaXt4 V# 'azza 4U5ttt5 BARNSTABLE,SS_ _ _ SUPERIOR COURT`' No. • J 3 / 7T-->J pEP0E VE vs. J U N 1 4 2004 TOWN ATTORNEY n TOWN OF BARNSTABLE SUMMONS To the above-named defendant You are hereby summoned and required to serve upon.....................................1. .......................v..P...,......................... ........................................................................................................................................................................plaintiff's attorney, whose address is . ..................✓ �. ..........,� ........ �...'S✓'�^ ...�......... ......G,-fan Lswer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so,judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. Witness, SUZAN(JE V. DELVECCHIO Esquire, at Barnstable,the...................... day of........................... ✓............................................in the year of our Lord two thousand and .............o..�............................... Clerk NOTE: When more than one defendant is involved,the names of all defendants shall appear in the caption. If a separate summons is issued for each defendant, each should be.addressed to the particular defendant. NOTICE TO DEFENDANT You need not appear personally in court to answer the complaint but if you claim to have a defense, either you or your attorney must serve a copy of your written answer within 20 days as specified herein and also file the original in the Clerk's office. C` PROOF OF SERVICE OF PROCESS I hereby certify and return that on...........................6...:....l...a'.................................................. 20.6... ..., I served a copy of the within summons, together with a copy of the complaint in this action, upon the within-named defendant , in the following manner(see Mass. R. Civ.P.4 (d) (1-5): ................................................................................................. . . f............... ...�.............., ............................... ............................. .......................................................................................................................................................................................................................................................................... .......................................................................................................................................................................................................................................................................... Dated: 1 •1 1- ,2M�/ . .............................................................................................................................................................................. N.B.TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON COPY SERVED ON DEFENDANT. I s' OR COJRT piSARNSTABLE SS COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss Barnstable Superior Court#04-137 � ,. % Clerk Thomas R. Rugo, Nick Fitzgerald, Donald Summers, Richard Foster Plaintiff's V. Town of Barnstable, Wayne Miller, M.D., Chairman of the Barnstable Board of Health, Sumner Kaufman, Barnstable Board of Health, Susan K. Rask, Barnstable Board of Health, aed- AMMENDED COMPLAINT CIVIL ACTION IN THE NATURE OF CERTIORARI 1. The plaintiff is a resident of Centerville Barnstable Count and resides at 19 Pondside P � Y Circle with his wife and two minor children. The Plaintiff abuts the residenceibusiness owned and operated by the defendant Edith White at 500 Huckins Neck Road, Centerville, Barnstable County, Massachusetts. 2. The subject property is a four bedroom, one story, ranch style residence as listed by the Barnstable Assessors Division on Map 233,parcel 29 and located at 500 Huckins Neck Road, Centerville. (Exhibit 1)This residence is located in a groundwater protection overlay District. 3. The Defendants Wayne Miller, M.D., Sumner Kauffman and Susan K. Rask are members of the Barnstable Board of Health. 4. As a property located in a groundwater protection overlay District, 500 Huckins Neck Road, Centerville is subject to the Massachusetts Department of Environmental Protection Regulations, 310 CMR 15.000 State Environmental Code, Title 5. These regulations require a property owner to be granted a variance from the appropriate regulating authority before exceeding more than 440 gallons of design flow per day per acre. 5. On June 25, 2001 Joseph P. Macomber, Jr. filed an application for a disposal works construction permit on a form provided by the Barnstable Board of Health for the Repair of Failed Septic Systems Only. On this form the applicant wrongly noted that"There are no variances requested or needed"that the number of bedrooms was "6" and the town did not correct this error during the application process and issued a Certificate of r Compliance for the 660 gallon septic system on February 19, 2002. 6. The property is on record with the Barnstable Assessors Office as a 4 bedroom residence and continues to be as of this filing. There is no town record indicating that the property has been issued a variance to become a 6 bedroom residence. There is no legal basis to call 500 Huckins Neck Road a 6 bedroom residence. 7. On July 11, 2003 plaintiff Rugo wrote the defendant Town of Barnstable Building Commissioner Tom Perry and made concerns about the unlicensed lodging house located at 500 Huckins Neck Road, Centerville, Massachusetts. 8. On or about August 11 or 12, 2003 Commissioner Perry wrote the plaintiff Rugo and stated"... According to the Board of Health the house has an approved septic system for six bedrooms. Because of this the owners have applied for a variance and have a hearing scheduled for August 19, 2003." 9. The plaintiff's never received notice of a hearing for a variance request by the owner of 500 Huckins Neck Road, Centerville and the Barnstable Board of Health never posted a request for a variance at 500 Huckins Neck Road, Centerville, Massachusetts. 10. On August 19, 2003 the Barnstable Board of Health approved an additional two bedrooms at 500 Huckins Neck Road, Centerville, Massachusetts. This action by the Board of Health was without notice to any of the abutters to 500 Huckins Neck Road Centerville, Massachusetts and violated the Massachusetts Department of Environmental Protection Regulations, 310 CMR 15.000 State Environmental Code,Title 5, 11. This action is brought on the ground that the plaintiff's are aggrieved by certain erroneous action by the defendant by violating Massachusetts Department of Environmental Protection Regulations, 310 CMR 15.000 State Environmental Code, Title 5, and 310 CMR 15.214(1)Nitrogen Loading Limitations, which states"No system serving new construction,(an increase in the actual or design flow to any system above the existing approved capacity)in Nitrogen Sensitive Areas designated in 310 CMR 15.216 shall be designed to receive or shall receive more than 440 gallons of design flow per day per acre ...." 7oa�: 12. This action is brought on the ground that the plaintiff's are aggrieved by certain erroneous action by the defendant by violating Massachusetts Department of Environmental Protection Regulations, 310 CMR 15.411 Process for Seeking a Variance From Local Approving Authorities. 1)The local authority shall review requests for variances as follows. (a) Every request for a variance shall be in writing and shall make reference to the specific provision of 310 CMR 15.000 from which a variance is sought and a statement in compliance with 310 CMR 15.410. (b)No application for a variance shall be complete until the applicant has notified all abutters by certified mail at his/her expense at least ten days before the Board of Health meeting at which the variance request will be on the agenda. The notification 'shall reference the specific provisions of 310 CMR 15.000 from which a variance to sought, a statement of the standards set forth in 310 CMR 15.410 and the date, time and place where the application will be discussed. a copy of each variance shall be conspicuously posted for 30 days following its issuance .... This process was never adhered to and notice with proper service to the abutters was never made. 13. This action is brought on the ground that the plaintiff's are aggrieved by certain erroneous action by the defendant by violating the Barnstable Building code by allowing construction of bedrooms at 500 Huckins Neck Road without a town building permit. 14. This action is brought on the ground that the plaintiff is aggrieved by certain erroneous action by the defendant Town of Barnstable, and Wayne Miller, M.D., Chairman of the Barnstable Board of Health, and members Kaufman and Rask,by approving the addition of two bedrooms at 500 Huckins Neck Road, Centerville, Massachusetts on Tuesday August 19, 2003 in violation of Massachusetts Department of Environmental Protection Regulations, 310 CMR 15.214(1)Nitrogen Loading Limitations, 310 CMR 15.411 Process for Seeking a Variance From Local Approving Authorities and 310 CMR 15.410 Variances - Standard of Review which states: (1) Local approving authorities and the Department may vary the application of any provisions of 310 CMR 15.000 with respect to any particular case except those listed in CMR 15.415. Variances shall be granted only when, in the opinion of the approving authority: (a) The person requesting a variance has established that enforcement of the provision of 310 CMR 15.000 from which a variance is sought would be manifestly unjust, considering all the relevant facts and circumstances of the individual case; and (b) The person requesting a variance has established that a level of environmental protection that is at least equivalent to that provided under 310 CMR 15.000 can be achieved without strict application of the provision of 310 CMR 15.000 from which a variance is sought. (2) With regard to variances for new construction, enforcement of the provision from which a variance is sought must be shown to deprive the applicant of substantially all beneficial use of the subject property in order to be manifestly unjust. This process was never adhered to and notice with proper service to the abutters was never made. r 15. This action is brought on the ground that the plaintiff is aggrieved by certain erroneous action by the-defendant Town of Barnstable, when on or about January 27, _ 2004 the Town of Barnstable and the Barnstable Town Manager entered into a conciliation agreement with the New England office of the U.S. Department of Housing and Urban Development affirming the towns position that they had not discriminated against property owner Edith White by limiting her to six bedrooms and that the use of six bedrooms at 500 Huckins Neck Road shall terminate and revert to four bedrooms if the property is not used for the Tranquility House program (A half way house for substance abusers consisting of adult men, some of whom are convicted felons, including convictions for violent crimes such as armed robbery and assault and battery with a dangerous weapon. This housing arrangement places two men per room at a cost of $150.00 per week per person allowing for the house to gross up to $7,740.00 per month or$92,880.00 per year) or another similar program. SAID CONCILIATION AGREEMENT STATES IN PART: 2) "As was stated in the original order of the Board of Health, the Parties agree the maximum number of bedrooms that will be allowed at the above-mentioned property is six (6) bedrooms. This constitutes a reasonable accommodation because under state environmental code the maximum number of permissible bedrooms is four and under the town's local ordinance the maximum number is three. ... 4) The Parties agree the reasonable accommodation (use of 6 bedrooms) granted to 500 Huckins Neck Road shall terminate if the property is not used for the Tranquility House program or a substantially similar program for persons with disabilities." 16. This action is brought on the ground that the plaintiff is aggrieved by certain erroneous action by the defendant Town of Barnstable and Wayne Miller, M.D., Chairman of the Barnstable Board of Health, and members Kaufman and Rask,by approving the addition of two bedrooms at 500 Huckins Neck Road, Centerville, Massachusetts and therefore interfering with the plaintiff s right of quiet enjoyment of their property. This quiet enjoyment has been disturbed by the defendants conduct which has allowed excessive noise to come from 500 Huckins Neck Road, Centerville, including excessive swearing and foul language from up to 12 residents who regularly congregate outside the home while smoking which is not allowed inside the rooming house thus causing a constant barrage of indecent language to flow onto the plaintiff s property and heard by the plaintiff s and their children while playing on their swing set and during other times in the use of their property, excessive automobiles (10 or more) parked adjacent to the plaintiffs property and polluting the abutting wetland with run off and excessive nitrogen loading in the adjacent wetland, lake and pond. 17. The plaintiff s rights have been substantially hanned by the failure of the Board of Health to comply with the state regulations, the failure of the plaintiffs to receive notice and thus provide an opportunity to be heard on the request for a variance to the State f Environmental Code, Title 5. 18. The defendant has caused substantial errors of law which are apparent on the record and adversely affect material rights of the plaintiff s. These errors have resulted in manifest injustice to the plaintiff s and have adversely affected the real interests of the general public. 19. Plaintiff Rugo learned about the action by the Town of Barnstable and the Board of Health when he visited the Barnstable Town office of the Board of Health on or about March 3, 2004 and asked to review the file for 500 Huckins Neck Road, Centerville. 20. On March 30, 2004 Plaintiff Rugo asked the Barnstable Board of Health to rescind its approval of 6 bedrooms at 500 Huckins Neck Road, Centerville. The Board denied this request based on their then stated position that the Board never approved an increase of two bedrooms to six bedrooms at that location and that the Board recognized that property as a pre-existing six bedroom residence. The Board failed to recognize that the town contradicts that position in their conciliation agreement and in the towns answer to the discrimination complaint by White in that the town states in their Seventh Affirmative Defense: "The records of the Barnstable Assessing Department indicate that the premises contain a total of four bedrooms. Upon information and belief, Complainants never obtained the proper building permits to expand the number of bedrooms on the premises from four bedrooms to eight bedrooms." WHEREFORE the plaintiff demands that an order issue to the Barnstable Board of Health directing them to certify up to this Honorable Court, a true, complete and perfect record of all proceedings before them with all reports,papers and transcripts of testimony of the hearing before them, if any there be, or in lieu thereof, a recital by them of a summary of all evidence considered to the end that any errors of law may be determined and.corrected by this Court. The plaintiff further demands that the decision of the defendant Board of Health and Town Manager be quashed and reversed,that the property owner White be ordered to take down two of the six bedrooms at 500 Huckins Neck Road, that the defendant Board of Health acknowledge that 500 Huckins Neck Road is a four(4)bedroom residence and any departure from this requires a variance from the Board of Health. That the Conciliation Agreement between the Town of Barnstable and the U.S. Department of Housing and Urban Development be quashed and reversed based on the errors of law underlying the agreement;That the property owner White be ordered to apply for a building permit and variance for additional bedrooms exceeding the current legal four bedrooms; That the Town of Barnstable Board of Health comply with 310 CMR 15.000 State Environmental Code, Title 5 and for such other and further relief as law and justice may require, and for attorneys fees and costs. By the Plaintiff s By their Attorney, P�OpIME 7p Town of Barnstable ,nine I Department of Health, Safety, and Environmental Services MASS. �e3q. Public Health Division �p �0 367 Main Street, Hyannis MA 02601 Office: 508-8624644 Thomas A.McKean FAX: 508-790-6304 Director of Public Health July 30, 2003 Ms. Edith White P.O. Box 803 Pocasset, MA. 02559 NOTICE TO ABATE VIOLATIONS OF 310 CMR 15.000 STATE ENVIRONMENTAL CODE, TITLE 5 AND THE TOWN OF BARNSTABLE RENTAL ORDINANCE, ARTICLE 51 The property owned by you located at 500 Huckins Neck Road, Centerville, MA. was inspected on July 22, 2003 by Donald Desmarais, Health Inspector for the Town of Barnstable, because of a complaint regarding a noise complaint. The following violations of 310 CMR 15.000 State Environmental Code, Title 5. 310 CMR 15.00. There were eight bedrooms located at the residence. However, the existing septic system capacity is designed for only six bedrooms total. You are ordered to remove the two bedrooms located in the basement on or before Monday September 1, 2003. A re-inspection is scheduled to be held on Tuesday September 2, 2003 at 10:00 a.m. You may request a hearing before the Board of Health if written petition requesting it is received within seven (7) days after the date the order is served. Non-compliance could result in a fine of up to $100.00. Each day's failure to comply with an order shall constitute a separate violation. PER ORDER OF THE BOARD OF HEALTH omas A. McKean Director of Public Health Town of Barnstable Regulatory Services Thomas F.Geiler,Director Building Division Tom Perry,Building Commissioner 200 Main Street, Hyannis,MA 02601 Office: 508-862-4038 Fax: 508-790-6230 August 8,2003 Thomas R.Rugo,Attorney at Law 720 Main St. Hyannis,MA 02601 Re: 500 Huckins Neck Rd.,Centerville Dear Mr.Rugo: We have looked into the situation at the above house and have received from the director a synopsis of the outfit operating there called Tranquility House,Inc. They are a private corporation and not under any Department of Mental Health program. The corporation's mission is to provide a sober house for men who are recovering from drug or alcohol addiction. Attorney Rugo is correct in stating that under Chapter 40A you cannot discriminate against persons with a disability and that Chapter 40A does not define disabled. However,according to Ruth Weil our assistant town attorney,the courts are very clear in their opinion that drugs and/or alcohol addiction is a disability. Because of this,Tranquility House,Inc.is zoning exempt. There is an educational aspect to this operation in that they provide a recovery environment where Twelve Step sober living and weekly Twelve Step meetings provide an essential part of the treatment of addiction. We have requested more detail on this. An inspector from the building department along with an inspector from the health department went to this house to do an inspection. We found that one of the rooms in the basement did not meet the requirements for egress under the building code. This room has since been eliminated as a bedroom. With the elimination of this bedroom the total bedroom count has dropped to seven. According to the board of health the house has an approved septic system for six bedrooms. Because of this the owners have applied for a variance and have a hearing scheduled for August 19,2003. There is,however,adequate square footage in this house to accommodate the number of people living there. Please contact me if you have any further questions regarding this property or the operation. Sincerely, Thomas Perry Building Commissioner TP/AW cc:John Klimm,Town Manager Tom Geiler,Director,Regulatory Services •.°�`"�' TOWN OF BARNSTABLE BARNSTABU. ' OFFICE OF TOWN ATTORNEY MASS. 019• �� 367 MAIN STREET lEc � HYANNIS, MASSACHUSETTS 02601-3907 ROB.ERT D.SMITH, Town Attorney TEL.(508)862-4620 RUTH J.WEIL, 1st Assistant Town Attorney FAX#(508)862-4724 T.DAVID HOUGHTON,Assistant Town Attorney CLAIRE R.GRIFFEN, Legal Assistant January 12, 2004 CLAUDETTE BOOKBINDER,Legal Clerk BY FAX: 617-565-7313 Russ Archibald, Investigator Boston HUD Office of Fair Housing and Equal Opportunity US Department of Housing and Urban Development 10 Causeway Street Boston, MA 02222-1092 Re: HUD Case No. 01-0411-8; Inquiry No. 156350 Alleged Housing Discrimination - Tranquility House, Inc. — Edith White v. Town of Barnstable; McKean, Director of Public Health Conciliation Agreement Our File Ref: #2003-0216 Dear Mr. Archibald: Thank you for providing me with an opportunity to review and comment upon the proposed conciliation agreement for the above-referenced matter. I have taken the liberty to propose certain changes, which changes make the agreement acceptable to the town of Barnstable. I am attaching the Conciliation Agreement, as revised, for your reference and review. I look forward to meeting with you tomorrow. As I understand the current arrangements, we will be meeting,at Tranquility House, 500 Huckins Neck Road, Centerville, MA tomorrow (January 13, Tuesday) at 2:00 p.m. to settle the question of whether under the State Building Code it is permissible for Tranquility House to maintain one of the six bedrooms in the basement. Thereafter, we will adjourn to my office, where we will review the Conciliation Agreement. I want to thank you for all the time and effort you have devoted to bringing this matter to an amicable resolution. Sincerely yours, RJW:c9 Ruth J. Weil, Flrst Assistant T&VAtto.rney Atchmt. Town of Barnstable cc: John C, Klimm, Town Manager cc: Thomas McKean, Director of Public Health ra CONCILIATION AGREEMENT Preamble The Parties to this Conciliation Agreement(hereinafter collectively"the Parties")are Complainants,Tranquility Houses, Inc. and Edith White (hereinafter"Complainants"),the Town of Barnstable and Director of Health Thomas McKean, (hereinafter".Respondents"), and the United States Department of Housing and Urban Development(hereinafter"the Department"). On September 12,2003, Complainants filed a complaint with the Department challenging an order of the Barnstable Board of Health which required the reduction in the number of bedrooms from eight to six based upon state and local environmental regulations. Complainant alleged that Respondents were denying persons with disabilities full access and enjoyment to the subject property. The Complainants further alleged the land use and zoning ordinances of the Town were being applied in a discriminatory manner and that Respondents refused to grant a reasonable accommodation. The Respondent answered by asserting Cape Cod's groundwater is the sole source of water for domestic and for most commercial and industrial uses. Over 90 percent of the homes on Cape Cod use on-site subsurface systems for disposal of wastewater. Numerous public water-supply test results show a distinct correlation between housing density and nitrogen(nitrate)concentration in the well water. Because the property is located in a groundwater protection overlay district, the state has limited the number of bedrooms on Complainants' property to four bedrooms. The Town's ordinance regulating wastewater discharge limits the number of bedrooms to three.The Respondent,Board of Health, further alleged that it has required numerous owners of single-family residences within the town of Barnstable to remove bedrooms when the number of bedrooms exceeded the number allowed under the state and local regulations. The Respondent further answered by stating that it provided reasonable accommodation-to the Complainants by allowing them to continue to maintain six bedrooms rather than the four that would be allowed under the current state law and the three that would be allowed under the current local regulations. The Board of Health has further alleged that it provided reasonable accommodation by giving the Complainants until January 1, 2004 to remove the two.additional unpermitted bedrooms. The Complainants purchased residential property which they lease to groups of men and women in recovery from alcoholism and drug addiction utilizing the Oxford House model. The complaint was filed under the Fair Housing Act,42 U.S.C. §§3501-19 (hereinafter"the Act"). The Parties agree that it is in their best interests to avoid further administrative proceedings and the potential for protracted and costly legal proceedings. Accordingly, the Parties enter into this Conciliation Agreement in order to resolve their dispute. I. General Provisions 1. It is understood that the Parties enter into this Agreement freely and voluntarily, and that no party has been coerced, intimidated,threatened, or in any way forced to become a party to this agreement. 2. This Agreement will become effective as of the date signed by the HUD Director of [2003.0216\hudagree2] I 4 the New England Office of Fair Housing.and Equal Opportunity.The HUD Director, acting on behalf of the Secretary of the Department of Housing and Urban Development(hereinafter"the Secretary"),retains authority to approve or disapprove this Agreement. 3. While Complainants assert in their complaint that Respondents have violated the Fair Housing Act. Respondents have denied any wrongdoing or that any such evidence exists. It is understood that this Agreement does not constitute evidence of a determination by the Department of any violation of the Fair Housing Act or any other federal statute nor constitutes an admission of any wrong doing. Respondents agree that the Secretary has the authority to enforce the Fair Housing Act. 4. In exchange for the Respondents' performance of the provisions of this Agreement, the Complainants hereby waive,release and covenant not to file a civil action against the Respondents, or to under take further administrative action against the Respondents with respect to the matters which were or which might have been alleged in the subject Fair Housing complaint.This release and waiver applies to the complaint existing between the signatories to this Agreement, and applies to any other complaints filed by Complainants which may be pending with the Department, including all matters pending up to the effective date of this Agreement. Additionally,the Department agrees not to take any further action with respect to the complaint or any other complaints tiled by the Complainants which may be pending with the Department. - 5. This Agreement does not in any way limit or restrict the Department's authority to investigate and act upon any future complaints involving Respondents. 6. It is understood that,according to Section 810(b)(4)of the Act,this Agreement shall become a public document. The Department,however, shall hold confidential all information of a personal or financial nature, concerning the Parties to this Agreement, and not contained in the body of this Agreement. Il. SETTLEMENT 1. The Parties to this agreement assent to the following and acknowledge that it constitutes the granting of a reasonable accommodation to the rules,practices, and policies of the Town of Barnstable with respect to Tranquility Houses, Inc. property located at 500 Huckins Neck Road in Centerville,Massachusetts. 2. As was stated in the original order of the Board of Health,the Parties agree the maximum number of bedrooms that will be allowed at the above-mentioned property is six(6)bedrooms. This constitutes a reasonable accommodation because under the state environmental code the maximum number of permissible bedrooms is four and under the town's local ordinance the maximum number is three. 3. The Complainants agree to provide a copy of its annual report to the Town of Barnstable Health Department every year.The report will state the number of residents that resided at the residential home,but will not include the names or the identities of the residents. 4. The Parties agree the reasonable accommodation(use of 6 bedrooms) granted to 500 Huckins Neck Road shall terminate if the property is not used for the Tranquility House program or a substantially similar program for persons with disabilities. [2003.0216\hudagree2l 2 5. The Complainants agree all sober house residents will execute an agreement or application to participate in the Tranquility House Program or a similar program at the property. 6. The complainants agree to withdraw the Federal Discrimination Complaint filed with the U. S.Dept. of HUD. As directed by this Agreement, any required certifications and documentation of compliance must be submitted to: Off ice of Fair Housing&Equal Opportunity US Department of Housing and.Urban Development 10 Causeway Street Boston,MA 02222-1092 SIGNATURES Date Russell J. Archibald, Conciliator These signatures attest to the approval and acceptance of this Conciliation Agreement: For Tranquility House Inc. (Complainant): Edith White(Complainant) Date For The Town of Barnstable,Massachusetts: John C.Klimm,Town Manager Date Thomas McKean, Director of Public Health Date Marcella 0.Brown, Director Date U.S. Dept. of Housing&Urban Development New.England HUD Office of Fair Housing and Equal Opportunity [2003-02161hudagree2] 3 TOWN OF BARNSTABLE BAWMABLE. ' OFFICE OF TOWN ATTORNEY MASS. r 039. 367 MAIN STREET HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D.SMITH, Town Attorney TEL.(508)862-4620 RUTH J.WEIL, 1st Assistant Town Attorney FAX#(508)862-4724 T.DAVID HOUGHTON,Assistant Town Attorney CLAIRE R.GRIFFEN, Legal Assistant September 24, 2003 CLAUDETTE BOOKBINDER,Legal Clerk EXPRESS MAIL -#EU137465433US Ms. Marcella O. Brown, Director Boston HUD, Office of Fair Housing and Equal Opportunity US Department of-Housing and Urban Development Thomas P. O'Neill Jr. Federal Building 10 Causeway Street Boston, MA 02222-1092 Re: HUD Case No. 01-03-0411-8;- Inquiry No. 156350 Alleged Housing Discrimination - Tranquility Houses, Inc.; Edith While v. Town of Barnstable; McKean, Director of Public Health Our File Ref.: #2003-0216 Dear Ms, Brown: Enclosed please find the Answer and Affirmative Defenses submitted on behalf of the Respondents in the above matter, together with Certificate of Service. The Respondents deny that they have discriminated against the Complainants in any way. The Town is proud of its commitment to effectuating fair housing for the Town's residents. Upon investigation, the record will reflect that the Town applied critical P 9 pp environmental laws to Complainants' property in the same manner as it has to single- family property-owners throughout the Town. In fact, the Town has provided reasonable accommodations to Complainants by not enforcing said laws regarding the Complainants' property as stringently as the Town had.the authority to do. The Town welcomes an investigation of the Complainants' allegations and intends to cooperate fully with said investigation. Please do not hesitate to contact me with any questions. Sinc rely, RJW:cg l4uth J. Weil, Asst. Town Attorney Encs. Town of Barnstable cc: Arthur Mansfield, Director of Housing; Edith White— Tranquility Houses, Inc. 2003-216/positionl] COMMONWEALTH OF MASSACHUSETTS U.S DEPARTMENT OF HOUSING & URBAN DEVELOPMENT OFFICE OF FAIR HOUSING & EQUAL OPPORTUNITY HUD Case No. 01-03-0411-8 --------------------------------------------------------- TRANQUILITY HOUSES, INC. and ANSWER TO EDITH WHITE of TRANQUILITY COMPLAINANTS' HOUSES, INC., COMPLAINT. Complainants, V. TOWN OF BARNSTABLE; and THOMAS A. McKEAN, DIRECTOR OF ) PUBLIC HEALTH OF TOWN OF ) BARNSTABLE, ) Respondents., ) ------------------------------------------------- The Respondents, the TOWN OF BARNSTABLE and THOMAS A. McKEAN, DIRECTOR OF PUBLIC HEALTH OF TOWN OF BARNSTABLE, for their Answer to Complainants' Complaint, show as follows: As to COMPLAINANTS: 1) Respondents lack knowledge or information sufficient to form a belief as to the truth of the averments in paragraph 1" of Complainants' Complaint. As to OTHER AGGRIEVED PERSONS: 2) No answer is necessary. As to ALLEGED TO HAVE OCCURRED OR IS ABOUT TO OCCUR: 3) Respondents DENY the averments contained in paragraph designated "3" of Complainants' Complaint. [2003-0216\ans-hudtranq]1 1 As to ALLEGED VIOLATION OCCURRED BECAUSE OF: 4) Neither admit nor deny the averments set forth in paragraph "4" of Complainants' Complaint by reason that said Respondents have insufficient information to form a belief as to the truth of the averments therein. As to CITY & STATE WHERE ALLEGED DISCRIMINATION OCCURRED: 5) Respondents DENY the averments contained in paragraph designated "5" of Complainants' Complaint. As to RESPONDENT(S): 6) ADMIT only so much of the averments set forth in paragraph "6" of Complainants' Complaint where it lists the names of several departments and employees of the Town but DENY all the remaining allegations contained in paragraph designated "6" of the Complainant's Complaint. As to COMPLAINANTS' STATEMENT OF FACTS REGARDING THE ALLEGED VIOLATION: 7) DENY the averments set forth in the introductory paragraph of 7" and each of each sub-paragraphs marked 1." through "W' of Complainants' Complaint together with its sub-paragraph not designated therein, except for the following statement which the Respondents' ADMIT: "[t]hey [Complainants] received a notice dated July 30, 2003 ordering them to remove the two bedrooms located in the basement on or before Monday, September 1, 2003. They were advised that failure to comply could result in a fine of up to $100.00 and that each day's failure to comply .... would constitute a separate violation. An appeal was filed, and in a recent hearing the Board of Health postponed the order until January 1, 2004." [2003.0216\ans-hudtranq]1 2 8) Respondents DENY the truth of the averments in paragraph "8" of Complainants' Housing Discrimination Complaint. 9) No answer is necessary. 10) The averments contained in paragraph "10" of Complainants' Complaint call for a conclusion of law and, therefore, no answer is necessary. FIRST AFFIRMATIVE DEFENSE The Complainants' claims fail to state a claim upon which relief can be granted and, therefore, Complainants' Complaint should be dismissed. SECOND AFFIRMATIVE DEFENSE The alleged conduct complained of herein is explicitly exempt under the Federal Fair Housing Law, 42 U.S.0 Sections 3601-3619. THIRD AFFIRMATIVE DEFENSE Complainants' property is located in a well protection overlay district. Under the State Environmental Code, 310 CMR 15.214, Complainants are only permitted to have a maximum of five bedrooms. The Board of Health has permitted six bedrooms. FOURTH AFFIRMATIVE DEFENSE Cape Cod's groundwater is the sole source of water for domestic and for most commercial and industrial uses. Over 90 percent of the homes on Cape Cod use on- site subsurface systems for disposal of wastewater. Numerous public water-supply test results show a distinct correlation between housing density and nitrogen (nitrate) concentration in the well water. The Town has passed an ordinance to protect the groundwater, ARTICLE XLVII: REGULATION OF WASTEWATER DISCHARGE, which would limit the number of bedrooms in the Complainants' home to three bedrooms. The Board of Health has allowed Complainants to maintain six bedrooms. [2003-0216\ans-hudtranq]1 3 SIXTH AFFIRMATIVE DEFENSE The Board of Health has provided reasonable accommodation to the Complainants by allowing them to continue to maintain six bedrooms rather than the four that would be allowed under the current state law and the three that would be allowed under the current local regulations. The Board of Health has further provided reasonable accommodation by giving the Complainants until January 1, 2004 to remove the two additional unpermitted bedrooms. SEVENTH AFFIRMATIVE DEFENSE The records of the Barnstable Assessing Department indicate that the premises contain a total of four bedrooms. Upon information and belief, Complainants never obtained the proper building permits to expand the number of bedrooms on the premises from four bedrooms to eight bedrooms. EIGHTH AFFIRMATIVE DEFENSE Upon information and belief, the two basement bedrooms violate the State Building Code by failing to provide adequate means of egress. Upon information and belief, the Complainants have jeopardized the health and safety of the residents of Tranquility House by continuing to allow residents to reside in said basement apartments. NINTH AFFIRMATIVE DEFENSE The Board of Health has consistently applied and enforced the State Environmental Code and its local groundwater protection regulations to single-family residences throughout the Town. [2003-0216\ans-hudtrang11 4 TENTH AFFIRMATIVE DEFENSE Respondents have reasonably applied the town and state's environmental regulations to the Complainants' property. ELEVENTH AFFIRMATIVE DEFENSE Subject matter jurisdiction is lacking and, therefore, Complainants' claims should be dismissed. TWELFTH AFFIRMATIVE DEFENSE At all times relevant hereto, the Respondents have acted without malice to Complainants and their actions as related to the Complainants are privileged by virtue of acting reasonably and in good faith within the scope of their authority. THIRTEENTH AFFIRMATIVE DEFENSE All of the actions taken by Respondents with respect to Complainants were justified for legitimate non-discriminatory administrative reasons. FOURTEENTH AFFIRMATIVE DEFENSE The Complainants' claims are barred by the doctrine of estoppel. FIFTEENTH AFFIRMATIVE DEFENSE The Complainants' claims are barred by waiver. I declare under the penalty of perjury that the foregoing statements are true and correct to the best of my knowledge and belief. Thomas A. McKean, Director Public Health, Town of Barnstable WHEREFORE, the Respondents respectfully pray for judgment against the Complainants as follows: [2003-021 6\a ns-h udtranq]1 5 (1) That a decree be entered dismissing Complainants' Complaint herein; (2) That a decree be entered affirming the Decision of the Barnstable Board of Health in all respects; (3) That judgment be entered in Respondents' favor under all counts of Complainants' Complaint; (4) That Respondents be granted their costs, disbursements, and attorneys' fees in the defense of this action; and, (5) That Respondents be granted such other and further relief as to this Court it deems just and appropriate. Dated: September 24, 2003. TOWN OF BARNSTABLE, and THOMAS A. McKEAN, Director of PUBLIC HEALTH OF TOWN OF BARNSTABLE, Respondents, By their Attorneys, OBERT D )69 TH, T wn Attorney B.B.O. No. 80] RUTH J. W st Assistant Town Attorney [B.B.O. No. 519285] T. DAVID HOUGHTON, Assistant Town Attorney [B.B.O. No. 241160] TOWN OF BARNSTABLE 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508) 862-4620; (508) 862-4724 TO: MARCELLA O. BROWN, DIRECTOR BOSTON HOUSING & URBAN DEVELOPMENT OFFICE OF FAIR HOUSING & EQUAL OPPORTUNITY O'Neill Federal Building 10 Causeway Street Boston, MA 02222-1092 [2003-0216\ans-hudtranq]1 6 j< 617-994-8300 TO: ARTHUR MANSFIELD DIRECTOR OF HOUSING Tranquility Houses, Inc. 500 Huckins Neck Road Centerville, MA 02632 TO: EDITH WHITE for TRANQUILITY HOUSES, INC. P.O. Box 803 Pocasset, MA 02559 CERTIFICATE OF SERVICE Barnstable, ss: September 24, 2003. I hereby certify under the pains and penalties of perjury that I caused to be served by first-class delivery, postage prepaid, a copy of the above document on.the date written above. Clai reriffen, L g tant Town of Barnsta [2003-0216\ans-hudtranq]1 7 TOWN OF BARNSTABLE C i - 3 w LOCATION S v 0 /l!�c k fA/�' ,�/e G SE AGE # (A VILLAGE C �� > L e ASSESSOR'S MAP & LOT 233-Q�� INSTALLER'S NAME&PHONE NO. -T), d A C d,al I3 e 9 t— S O/✓ SEPTIC TANK CAPACITY 2• 00 LEACHING FACILITY: (type) /��' V W eU°S (siie) NO.OF BEDROOMS BUMDER OR OWNER ME Au1 PERMITDATE: 0 COMPLIANCE DATE: 111b Z Separation Distance Between the: I Feet Maximum Adjusted Groundwater Table to the Bottom of Leaching Facility g ty wells exist. i Private Water SupplyWell and Leaching Facility (If any Feet on site or within 200 feet of leaching facility) Edge of Wetland and Leaching Facility(If any wetlands exist within 300 feet of leaching facility) i►. Feet Furnished by - � 1 � w _ice Town of Barnstable Regulatory Services Thomas F.Geiler,Director Building Division Tom Perry,Building Commissioner 200 Main Street, Hyannis,MA 02601 Office: 508-862-4038 Fax: 508-790-6230 August 8,2003 Thomas R.Rugo,Attorney at Law 720 Main St. Hyannis,MA 02601 Re:506 Huckins Neck Rd.,Centerville Dear Mr.Rugo: We have looked into the situation at the above house and have received from the director a synopsis of the outfit operating there called Tranquility House,Inc. They are a private corporation and not under any Department of Mental Health program. The corporation's mission is to provide a sober house for men who are recovering from drug or alcohol addiction. Attorney Rugo is correct in stating that under Chapter 40A you cannot discriminate against persons with a disability and that Chapter 40A does not define disabled. However,according to Ruth Weil our assistant town attorney,the courts are very clear in their opinion that drugs and/or alcohol addiction is a disability. Because of this,Tranquility House,Inc.is zoning exempt. There is an educational aspect to this operation in that they provide a recovery environment where Twelve Step sober living and weekly Twelve Step meetings provide an essential part of the treatment of addiction. We have requested more detail on this. An inspector from the building department along with an inspector from the health department went to this house to do an inspection. We found that one of the rooms in the basement did p not meet the requirements for egress under the building code. This room has since been eliminated as a bedroom. With the elimination of this bedroom the total bedroom count has dropped to seven. According to the board of health the house has an approved septic system for six bedrooms. Because of this the owners have applied for a variance and have a hearing scheduled for August 19,2003. There is,however,adequate square footage in this house to accommodate the number of people living there. Please contact me if you have any further questions regarding this property or the operation. Sincerely, � V Thomas Perry Building Commissioner TP/AW cc:John Klimm,Town Manager Tom Geiler,Director,Regulatory Services l�ECElaf:-.._ SEP 1 5 2003 PPS MENT OP h � w TOWN OF BARNS1iAbLk- * HEALTH DEFT. y�ro YI'II a�� tl0>3n30 N+0 U.S. Department Of Housing and Urban Development Office of Fair Hoilsing and Equal Opportunity Thomas P. O'Neill, Jr. Federal Building 10 Causeway Street Boston, Massachusetts 02222-1092 September 12, 2003 Town of Barnstable, MA Dept. of Health, Safety, & Environmental Services Public Health Division / 367 Main Street HI•annis, MA 02601 Dear Respondent: Subject: Housing Discrimination Complaint Tranquility Houses, Inc. v. Town of Barnstable, MA, et al. Inquiry No. 156350 HUD Case No. 01-03-0411-8 We have received a formal complaint alleging that you have engaged in one or more discriminatory housing practices under the Federal Fair Housing Law, 42 U.S.C. Sections 3601-3619. We are required by statute to send you a copy of the complaint. We'' are"enclosing'a 'copy,of the complaint for you. The alleged discriminatory prat t,;,.ceF aree identified in 'this- 'complaint.' We have made- no determination as'.to ' whether the complaint against you has merit. The purpose'of this letter is to inform you of: 1) the rights you have in re:,ponding to this complaint, 2) the rights each complainant has, and 3) the steps the U.S. Department of Housing and Urban Development (the Department) will take to determine whether the complaint has merit. In order to insure that the Department informs you properly of the law's requirements, this notification letter contains language required by the law. A similar letter is used r.o notify all parties whenever a formz.i complaint has been filed with the Department under the Federal Fair Housing Law. We are governed by federal law, which sets out what steps we must take when a formal complaint is filed. The law also includes steps that you can take to answer or refute the allegations of this complaint. Under federal law, any answer from you to this complaint can be filed within ' 0 calendar days of your receipt of this letter or receipt of a letter notifying you cf any amendments to this complaint. Your .answer must be signed and you must affirm that you have given a truthful response by including the statement "I declare under penalty of perjury that the foregoing is true and correct. " You 'will 'be allowed to' 'amend your' statement at any time,- if' our investigation shows L1-lat it is reasonable and fair for- you to do so: - - - Our responsibility under the law is to undertake an impartial investigation and, at the same time, encourage all sides to reach an agreement, where appropriate, through conciliation. The law requires us to complete our investigation within 100 days of the date of the official filing of the complaint. If we are unable to meet the 100-day requirement for issuing a determination, the law requires that we 'notify you and the complainant(s) and explain the reasons why the investigation of the complaint is not completed. In handling this complaint, we will conduct an impartial investigation of all c]..::ims that the Fair Housing Act has been violated. If the investigation indicates that there is not evidence establishing jurisdiction, the case will be dismissed. P. any point, you can request that our staff assist you in conciliating (or settling) this complaint with the complainant(s) . If the case is not resolved, we will complete our investigation and decide whether or not the evidence indicates that there has been a fair housing violation. If the parties involved have not reached an agreement to settle the complaint, the Department will issue - determination as to whether there is reasonable cause to believe a discriminatory housing practice has occur-e: . If our investigation indicates that there is reasonable cause to believe that an unlawful discriminatory housing practice has occurred, the Department must issue a ch,.rge. If the investigation indicates that there is no reasonable cause to believe that discrimination has occurred, the complaint will be dismissed. In either event, you will be notified in writing. If the determination is one of reasonable cause, the notification will advise you and the complainant(s) of your rights to choose, within 20 days, whether you wish to have the case heard uy an Administrative Law Judge, or to nave the matter referred for trial in the appropriate U.S. District Court. Each complainant has the legal right to file such a suit, even if the complaint formed the basis for a charge, as long as an Administrative Law Judge has not started a hearing on the record with respect to the charge. Under federal law, even if the Department dismisses the complaint, each complainant still has the right to file all individual lawsuit under the Fair Housing Law in an appropriate federal, state or local court within two years of the date of the alleged discriminatory practice or cf the date when a conciliation agreement has been violated. The law does not count, as part of the two-year period, any of the time when a proceeding is pending with the Department. There may be other applicable federal, state or local statutes under which you and/or the complainant(s) may initiate court action. You may consult a private attorney in this regard. The law also requires us to notify you that section 818 of the Fair Housing Act makes it unlawful for you, or anyone acting on your behalf, to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, any right granted or protected under the Federal Fair Housing Law. The law also makes it illegal for anyone to coerce, threaten or interfere with any person for having aided or encouraged any other person in the exercise or enjoyment of, any right or protection granted to them under the Federal Fair Housing Law. Some explanatory material on the law is enclosed for your information. If you have any questions regarding this case, please contact our office at (617) 994-8300. Please refer to the case number at the top of this letter in those ccntacts, and keep this office advised of any change of your --..ddres or telephone number. We hope this information has been helpful to you. Sincerely, a v Marcella 0. Brown, Boston HUB Director Office of Fair Housing and Equal Opportunity Enclosures HOUSING DISCRIMINATION COMPLAINT CASE NUMBER: 01-03-0411-8 1. Complainants Tranquility Houses, Inc. c/o Arthur Mansfield, Director of Housing 500 Huckins Neck Road Centerville, MA 02632 Edith White Tranquility Houses, Inc. P.O. Box 803 Pocasset, MIA 02559 2. Other Aggrieved Persons None. 3. The following is alleged to have occurred or is about to occur: Otherwise deny or make housing available. Failure to permit reasonable modification. Failure to make reasonable accommodation. 4. The alleged violation occurred because of: Handicap. 5. Address and location of the property in question (or if no property is involved, the city and state where the discrimination occurred) : 500 Huckins Neck Road Centerville, MA 02632 6. Respondent(s) Town of Barnstable, MA Dept. of Health, Safety, & Environmental Services Public Health Division / 367 Main Street Hyannis, MA 02601 Thomas A. McKean, Director of Public Health Dept. of Health, Safety & Environmental Services Public Health Division i 367 Main S:.:_eet Hyannis, MA 02601 7. The following is a brief and concise statement of the facts regarding the alleged violation: The complainants allege that the respondents discriminated against them on the basis of disability by refusing to permit reasonable modification and/or provide reasonable accommodation with regard to the occupancy and operation of their facility in Centerville, MA. The particulars are as follows: 1. The complainants own and operate a "sober house", a housing program that provides assistance and education for people seeking recovery from substance abuse, alcoholism, addiction or related disabilities; the dwelling is located at 500 Huckins Neck Road in Centerville. MA. 2. The complainants allege, after opening in January and having a cordial relationship with year-round residents, that they were targeted with a number of visits from various town officials after a summer resident called and complained that he counted too many cars parked on their acre-plus property at 6:00 a.m. in the morning. T"ne complaint resulted in visits from t:ie Town Fire Marshal's office and the Building Inspector. Minor changes were made which brought them into compliance with their requirements. A second complaint was then made by another neighbor who complained about a noise situation that allegedly occurred one- evening. 3. The complainants state that following the "noise" complaint, a health inspector was sent out from the Public Health Division. He noticed that the house had eight bedrooms, the same number that the house had when it was purchased, and informed them that the septic system was suitable for only six bedrooms. The complainants requested, as an accommodation, if the septic tank could be enlarged or if it could be pumped out in order to avoid having to evict four men in early recovery and greatly in need of affordable housing. In response, they received a notice dated July 30, 2003 ordering them to remove the two bedrooms located in the basement on or before Monday, September 1, 2003. They were advised that failure to comply could result in a fine of up to $100.00 and that each day's failure to comply with an order would constitute a separate violation. An appeal was filed, and in a recent hearing the Board of Health postponed the order until January 1, 2004. The complainants believe that the respondents have been unreasonable. The sober house has been in operation since January and there have been no problems with the septic system which was enlarged just a year ago. They do not believe that the septic system poses an environmental risk but, rather, that the respondents want to close them down or limit them as much as possible because of the nature of their program. They allege that the respondents actions are discriminatory and constitute a violation of their civil rights under the Fair Housing Laws. S. The most recent date on which the alleged discrimination occurred: July 30, 2003. 9. Types Of Federal Funds identified: None. 10. The acts alleged in this complaint, if proven, may constitute a violation of the following: Sections 804a, 804f3A and. 804f3B of Title V111 of. the Civil Rights Act of 1968 as amended by the Fair Housing Act of 1988. Please sign and date this form: I declare under penalty of perjury that I have read this complaint (including any attachments) and that it is true and correct. J� Edit e For Tranquility Houses, Inc. (Date) fl thur Man.s,fie1 , Di ctor of�H.vsj�-n, Tranquility Houses, Inc. (Date) N O T E : HUD WILL FURNISH A COPY OF THIS COMPLAINT TO THE PERSON OR ORGANIZATION AGAINST WHOM IT IS FILED. Town. of Barnstable o� 1 snMsrnsiJe. 1 Department of Health, Safety, and Environmental Services '""� i639 Public Health Division 9 `�� 367 Main Street,Hyannis MA 02601 Office: 508-862-4644. Thomas A.McKean FAX:. .508-790-6304 Director.of Public Health July 30, 2003. Ms. Edith White P.O..Box 803 Pocasset, MA. 02559 NOTICE TO ABATE VIOLATIONS OF 310 CMR 15.000 STATE ENVIRONMENTAL CODE, TITLE 5 AND THE TOWN OF BARNSTABLE RENTAL ORDINANCE, ARTICLE 51. The property owned by you located at 500 Huckins Neck Road, Centerville, MA.. was. inspected on July 22, 2003 by Donald Desmarais, Health Inspector for the Town of Barnstable,. because. of a complaint regarding a noise complaint. The following violations of 310 CMR 15.000 State Environmental Code, Title 5. 310 CMR 15.00. . There were eight bedrooms located at the residence. However, the existing septic system capacity is.designed for only six bedrooms.total. You are ordered to remove the two bedrooms located in the basement on or before Monday September 1, 2003. A re-inspection is scheduled to be held on Tuesday September 2, 2003 at 10:00 a.m. You may request a hearing before the Board of Health if written petition requesting it is.received within seven (7) days after the date the order is served.. Non-compliance could result in a fine of up to $100.00. Each days failure to comply with an order shall constitute a separate violation. PER ORDER OF-T�IE BOARD OF HEALTH e5omas A. cKean Director of Public Health #01-03-0411-8 II. SETTLEMENT 1. The Parties to this agreement assent to the following and acknowledge that it constitutes the granting of a reasonable accommodation to the rules, practices, and policies of the Town of Barnstable with respect to Tranquility Houses, Inc. property located at 500 Huckins Neck Road in Centerville, Massachusetts. 2. As was stated in the original order of the Board of Health, the Parties agree the maximum number of bedrooms that will be allowed at the above-mentioned property is six (6) bedrooms. This constitutes a reasonable accommodation because under the.current state environmental code the maximum number of permissible bedrooms is four and under the town's local ordinance the maximum number is three. To comply with this requirement, the Complainants agree as follows: a) Complainants shall use the six bedrooms on the first floor level only and no rooms in the basement level shall be used as bedrooms; or, b) Alternatively, if the Complainants want to convert the room located in the basement level adjacent to the community room into a bedroom, then Complainants may so do, provided that they first: 1. Modify the window located in the basement room so that it is able to open 20" by 24" without the use of special tools; 2. Provide a minimum five-foot opening between the two smallest bedrooms located on the first floor, thereby converting the two bedrooms into one bedroom; for a total of five bedrooms on the first floor; 3. Obtain all necessary town permits before commencing any construction. 3. The Complainants agree to provide a copy of its annual report to the Town of Barnstable Department of Regulatory Services, Health Division, every year. The report will state the number of residents that resided at the residential home, but will not include the names or the identities of the residents. 4. The Parties agree the reasonable accommodation (use of 6 bedrooms) granted to 500 Huckins Neck Road shall terminate if the property is not used for the Tranquility House program or a substantially similar program for persons with disabilities. [2003.0216\hudagree3i 3 367 Main Street Hyannis, MA. 02601 7. The following is a brief and concise statement of the facts regarding the alleged violation: The complainants allege that the respondents discriminated against then on the basis of disability by refusing to permit reasonable modification and/or provide reasonable accommodation with regard to the occupancy and operation of their facility in Centerville, MA. The particulars are as follows: 1. The complainants own and operate a "sober house", a housing program that provides assistance and education for people seeking recovery from substance abuse, alcoholism, addiction or related disabilities; the dwelling is located at 500 Huckins Neck Road in Centerville, MA. 2. The complainants allege, after opening in January and having a cordial relationship with year-round residents, that they were targeted with a number of visits from various town officials after a summer resident called and complained that he counted too many cars parked on their acre-plus property at 6:00 a.m. in the morning. The complaint resulted in visits from the Town Fire Marshal's .:office and the Building Inspector. Minor changes were` made which brought them into compliance with their requirements. A second complaint was then made by another neighbor who complained about a noise situation that allegedly occurred one evening. 3. The complainants state that following the "noise" complaint, a health inspector was sent out from the Public Health Division. He noticed that the house had eight bedrooms, the same number that the house had when it was purchased, and informed them that the septic system was suitable for only six bedrooms. The complainants requested, as an accommodation, if the septic tank could be enlarged or if it could be pumped out in order to avoid .having to evict four men in early recovery and greatly in need of affordable housing. In response, they received a notice dated July 30, 2003 ordering them to remove the two bedrooms located in the basement on or before Monday, September 1, 2003. They were advised that failure to comply could result in a fine of up to $100.00 and. that each day's failure to comply with an order would constitute a separate violation. An appeal was filed, and in a recent hearing the Board of Health postponed the order until January 1, 2004. The complainants believe that the respondents have been unreasonable. The sober house has been in operation since January and there have been no problems with the septic system which was enlarged just a year ago. They do not believe that the septic system poses an environmental risk but, rather, that the respondents want to close them down or limit them as much as possible because of the nature of their program. They allege that the respondents actions are discriminatory and constitute a violation -of their civil rights under the Fair Housing Laws. 8. The most recent date on which the alleged discrimination occurred: July 30, 2003. 9. Types of `Fedaral Funds identified: None. 10. The acts alleged in this complaint, if proven, may constitute a violation of the following: Sections 804a, 804f3A and. 804f3B of Title VIII of. the Civil Rights Act of 1968 as amended by the Fair Housing Act of 1988. Please sign and date this form: I declare under penalty of perjury that I have read this complaint (including any attachments) and that it is true and correct. /r Edit e lf- --7 For Tranquility Houses, Inc:. (Date) LA A thur Mans fiel , Director of Housing Tranquility Houses, Inc. (Date) N O T E HUD WILL FURNISH A COPY OF THIS COMPLAINT TO THE PERSON OR ORGANIZATION AGAINST WHOM IT IS FILED. McKean, Thomas From: McKean, Thomas Sent: Friday, September 26, 2003 2:40 PM To: Weil, Ruth Cc: Mcauliffe, Paulette Subject: RE: Collection of Data for Tranquility House-500 Huckins Neck Road 1) a) Vilson Rubio 88 Compass Circle-Ordered to remove four bedrooms located in the basement, order letter dated 7/31/03 b) Susan Dillard, 63 Mountain Ash Road- Board granted setback variances with requirement to remove one bedroom, (illegal bedroom found in basement) letter dated 1/31/02 c) Nancy Johnson, 38 Moco Road-Board granted variance with requirement to remove bedroom (illegal bedroom found in basement), letter dated 10/23/98 2) a) Melissa Cronin, 15 Buckwood Drive, Hyannis 6/03- Informed her on the telephone that she cannot add a third bedroom to her home, even though her male and female children are in desperate need of separate bedrooms. b) 57.Halyward Way, 5/5/03-Applicant requested four bedrooms, denied and limited to three bedrooms. b) Linda Clinton, 14 Kennedy Circle—Requested a two bedroom home, denied and restricted to a one bedroom home c)60 St. John Street Hyannis- Restricted to a one bedroom home d)24 James Otis Road-restricted to a one bedroom home e) 164 Little River Road, 5/20/03, basement room proposal, denied and restricted to same number of bedrooms in home as current 3) Ruth—I'm awaiting a return telephone call from Paulette for the amnesty program examples. I know of at least one denial because the bedroom would have exceeded the 330 rule. ----Original Message----- From: Weil, Ruth Sent:Thursday, September 25, 2003 11:20 AM To: McKean,Thomas; Perry,Tom Cc: Smith, Robert Subject: Collection of Data for Tranquility House-500 Huckins Neck Road Dear Tom and Tom: I spoke with the HUD Investigator, Russ Archibald, and he indicated that it would be helpful if we start compiling the relevant information. At this juncture, we can use the following: Tom McKean: -Examples of where the BOH required property-owner to remove illegal bedrooms based upon failure to comply with Title V or the town ordinance; -Examples of where the BOH denied property-owners request to.increase the number of units in excess of the Title V or town ordinance. Amnesty cases, where we required property-owners to remove illegal bedrooms, in exchange for legitimating illegal apartment units, all to comply with Title V or town ordinance. Tom Perry: -Any documents that reflect the number of bedrooms that have been legally built on the premises. -Any building permits that you have on record for the property. Thanks so much. Ruth 1 SEP 15 2p03 t MENT OF SOW y�o III'II a� 0 e �>3nao N� U.S. Department Of Housing and Urban Development Office of Fair Housing and Equal Opportunity Thomas P. O'Neill, Jr. Federal Building 10 Causeway Street Boston, Massachusetts 02222-1092 September 12, 2003 Thomas A. McKean, Director of Public Health Dept. of Health, Safety & Environmental Services Public Health Division 367 Main Street Hyannis, MA 02601 De+=.r Respondent: Subject: Housing Discrimination Complaint Tranquility Houses, Inc. v. Town of Barnstable, MA, et al. Inquiry No. 156350 HUD Case No. 01-03-0411-8 We have received a formal complaint alleging that you have engaged in one or more discriminatory housing practices under the Federal Fair Housing Law, 42 U.S.C. Sections 3601-3619. We are required by statute to send you a copy of the complaint. We are enclosing a copy of the complaint for you. The alleged discriminatory pi=ctices, are. identifiec?, in this complaint. 'We have made ho determination as to whether the complaint against you has merit. The purpose of this letter is to inform you of: 1) the rights you have in responding to this complaint, 2) the rights each complainant has, and 3) the steps the U.S. Department of Housing and Urban Development (the Department) will take to determine whether the complaint has merit. In order to insure that the Department informs you properly of the law's requirements, this notification letter contains language required by the law. A similar letter is used to notify all parties whenever a formal complaint has been filed with the Departmer.`_ under the Federal Fair Housing Law. We are governed by federal law, which sets out what steps we must take when a formal complaint is filed. The law also includes steps that you can take to answer or refute the allegations of this complaint. Under federal law, any answer from you to this complaint can be filed within 10 calendar days of your receipt of this letter or receipt of a letter notifying you of any amendments to this complaint. Your answer must be signed and you must affirm that you have given a truthful response by including the statement "I declare under penalty of perjury -that,-,the foregoing is true and correct. " U You will be allowed to amend your statement at any time, if our investigation shows that it is reasonable and fair for you to do so. Our responsibility under the law is to undertake an impartial investigation. and, at the same time, encourage all sides to reach an agreement, where appropriate, through conciliation. '.i'he law requires us to complete our investigation within 100 days of the date of the official filing of the complaint. If we are unable to meet the 100-day requirement for issuing a determination, the law requires that we notify you and the complainant(s) and explain the reasons why the investigation of the complaint is not completed. In handling this complaint, we will conduct an impartial investigation of all. claims that the Fair Housing Act has been violated. If the investigation indicates that there is not evidence establishing jurisdiction, the case will be dismissed. At any point, you can request that our staff assist you in conciliating (or settling) this complaint with the complainant(s) . If the case is not resolved, we will complete our investigation and decide whether or not the evidence indicates that th-.re has been a fair housing violation. If the parties involved have not reached an agreement to settle the complaint, the Department will issue a determination as to whether there is reasonable cause to believe a discriminatory housing practice has occurred. If our investigation indicates that there is reasonable cause to believe that an unlawful discriminatory housing practice has occurred, the :department must issue a charge. If the investigation indicates that there is no reasonable cause to believe that di,=_crin,ination has occurred, the complaint will be dismissed. In either event, you will be notified in writing. If the determination is one of reasonable cause, the notification will advise ycu and the complainants) of your rights to choose, within 20 days, whether you wish to have the case heard by an Administrative Law Judge, or to have the matter referred for trial in the appropriate U.S. District Court. Each complainant has the legal right to file such a suit, even if the complaint formed the basis for a charge, as long as an Administrative Law Judge has not started a hearing on the record with respect to the charge. Under federal law, even if the Department dismisses the complaint, each complainant still has the right to file an individual lawsuit under the Fair Housing Law in an appropriate federal, state or local court within two years of the date of the alleged discriminatory practice or of the date when a conciliation agreement has been violated. The law does not count, as part of the two-year period, any of the time when a proceeding is pending with the Department. There may be other applicable federal, state or local statutes under which you and/or the complainant (s) may initiate court action. You may consult a private attorney in this regard. The law also requires us to notify you that section 818 of the Fair Housing Act makes it unlawful for you, or anyone acting on your behalf, to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, any right granted or protected under the Federal Fair Housing Law. The law also makes it il .egal for anyone to coerce, threaten or interfere with any person for having aided.. or encouraged any other person in the exercise or enjoyment of, any right or protection granted to them under the Federal Fair Housing Law. Some explanatory material on the law is enclosed for your information. If you have any questions regarding this case, please contact our office at (617) 994-8300. Please refer to the case number at the top of this letter in those contacts, and keep this office advised of any change of your address r telephone number. We hope this information has been helpful to you. Sincerely, Marcella 0. Brown, Boston HUB Director Office of Fair Housng and Equal Opportunity Enclosures 1 a-a c q n®m ®F P R(Qg)RT V IL D N DES AAA4V N a)-T L% U IE _STANDARD LEGEN11- \ NOTE_not all symbols will appear on°kmop ! tZ� � GOLF COURSE FAIRWAY ^m r EDGE OF DECIDUOUS TREES EDGE OF BRUSH ORCHARD OR NURSERY --- -/ Vw v EDGE OF CONIFEROUS TREES MARSH AREA t —-••— EDGE OF WATER __= DIRT ROAD MAP _ DRIVEWAY PARKING LOT JC� `(e' � � PAVED ROAD 'DRAINAGE DITCH PATH/TRAIL Y ^- - ---- PARCEL LINE ow1to ---MAP# 21 E----PARCEL NUMBER l— ) el"o - --- HOUSE NUMBER 2 FOOT CONTOUR LINE 10 FOOT CONTOUR LINE Elevation based on NGVD29 i 4.9 SPOTELEVATION STONEWALL L SQE� -X—X- FENCE A s RETAININGWALL F-�-F RAIL ROAD TRACK —� STONE JETTY ti P« SWIMMING POOL PORCH/DECK 0 BUILDING/STRUCTURE DOCK/PIER - L� •Q HYDRANT VANE go MANHOLE FP ?DST :D FLAGPOLE T O W N O F 9 A a N S T A ® A. E G E 43 It A IP N a C I N IF O R M A T 1 O N S Y S T E M S U N I T ,1 SIGN S10RMDRAIN j n PRINTED SCALEINEEET *NOTE thismapisonenlargementofardo :The parcel lines are only graphic representations DATASOILRCES. Planimemns(man-madefeatures)vrere interpreted from1995oeriulphotographsby16laras 1 r r-rT T=-r—— a UTILITY POLE A 1 �> - 1°=100 style map and may NOT meet � .boundaries They are mat hue Mcalia�and W.Sewall Cnm�o}r.ToMropby and vegetation s�mmr intsipolad from 1989 aerial photographs by GEOD " ® 0 10 20 National Alop Aaamq-Standards al thisot rep iosarri actiml relationships to plrysical ob[cts Corporation.PlarelOet TQ topography,and vegetation were mapped to lot National Akap Acaracy Standards1 INCH 20 FEET o �0�scale. e map. at a sale of 1°41 .Read lines we Milized hom 2001 Tarn of Bant;Nble Assessods tax maps. LIGHT POIf o ELECTRIC BOX f:ldgMconservation.dgn 02/13/02 03:13:09 PM � ---—--- __ J