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0181 SCHOOL STREET (2)
r Ft1 /t OJ f, t • G 1 a7v17-- ��P Oz0 - lSgO e 1 i 1 I 1� e j i i f , i i. �1 � � �. i r Parcel Viewer Custom Map Abutters In r y .K �_ ® m= 7PG Map: 020 Parcel: 090 :: ` Location: 181 SCHOOL STREET s 020043 } 1� '1 020070 02DD7.1 015 Owner: LIMONCELLI, SUSAN ; p 174 q,166 -020140 tt N 19 2 8 q 206 56ly ' y= _ 020042 20067 1 g N15D1" L®CatlOn Information 67 Map &Parcel 020090 s �p1. Location 181 SCHOOL STREET Acreage 0.60 acres Current Owner 020089 020088 Iw 161 Mailing Address LIMONCELLI SUSAN 3 i 020090 173 181 SCHOOL ST 02oos7 020 t COTUIT, MA 02635 r 020091 181020092 }4. a 193 020086 jAppraised Value FY 2009 Extra Features $4,800 . Out Buildings $900 Land $212,500 20098 020083 Buildings $240,200 22 5 � • N 135 Total Appraised $4 58,400 20097 N- 31 ti k020093002 jAssessed Value (FY 2009) #28 001 Extra Features $4,800 1 itDP'ee t a 1252 Out Buildings $900 020 , Land $212,500 N 42 Buildings $240,200 Total Assessed $458,400 Set Scale 1" = 119 I Aenal Photos �;;� I MAP DISCLAIMER Copyright 2005-2008 Town of Barnstable,MA All rights reserved.Send questions or comments to GIS BarnstableMA v1.2.3351 [Production] I - i I e'. Y A TOWN OF BARNSTABLE _ ` Barnstable BARNSTABLE. OFFICE OF TOWN ATTORNEY I I V y MASS. �o 1639• 367 MAIN STREET rEDNa HYANNIS, MASSACHUSETTS 02601-3907 2007 RUTH J.WEIL,Town Attorney ruth.weil@town.barnstable.ma.us T.DAVID HOUGHTON, 1st Assistant Town Attorney david.houghton@town.barnstable.ma.us CHARLES S.McLAUGHLIN,JR.,Assistant Town Attorney charles.mclaughlin@town.barnstable.ma.us CLAIRE R.GRIFFEN,ParalegaULegal Assistant claire.griffen@town.barnstable.ma.us PAMELA D.GORDON,Legal Clerk TEL.508-862-4620•FAX.508-862-4724 . February.10, 2011 Scott Nickerson, Esq., Clerk Barnstable Superior Court, Civil sa.' County Court Complex, Main Street ' P.O. Box 425 Barnstable, Ma. 02630-0425 ° Re: C.A. No. BACV-2008-00105 Susan Limoncelli v. Town of Barnstable; Zoning Board of Appeals,et al s Defendants' Answer to Plaintiffs Second Amended Complaint Our File Ref: #2008-003 Dear Mr. Nickerson: Enclosed herewith please find for filing the original of the Defendants' Answer to Plaintiff s Second Amended Complaint in the above matter, with its appropriate Certificate of Service. Thank you: ! Sincerely yours, f RJW:cg R J. Weil, Town Attorney Encs: Town of Barnstable cc: Michael J. Princi, Esq.; Jeni A. Landers, Esq.. cc: Zoning Board of Appeals,Art Traczyk cc: Building Commissioner, Thomas Perry [2008-6035\nickltrorigdsans2ndamdcomplaintwaffirmdefs-021011] COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BACV 2008-00105 --------------------------------------------------------- SUSAN LIMONCELLI, ) DEFENDANTS' ANSWER Plaintiff, TO PLAINTIFF'S SECOND AMENDED COMPLAINT WITH V. ) AFFIRMATIVE DEFENSES. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. ) JANSSON, DANIEL M. CREEDON III, ) ` JAMES R..HATFIELD, SHEILA GEILER; ) JOHN NORMAN, JEREMY GILMORE, ) KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE ) Defendants. ) Pursuant to M.G.L. c. 40A, §17, the Defendants, in answer to the Plaintiff.s Second Amended Complaint, show to the,Court as follows: , As to Parties: 1) DENY the allegations contained in paragraph"1" of Plaintiff's Second Amended Complaint. - 2) Neither admit nor deny the allegations set forth in paragraph"2" of Plaintiff's Second Amended Complaint by reason that said Defendants are without sufficient information to form a belief. 3) ADMIT the allegations contained in paragraph"3" of,Plaintiff's Second Amended Complaint. 4) ADMIT the allegations contained in paragraph"4" of Plaintiff's Second Amended Complaint. 5) ADMIT the allegations contained.in paragraph"5" of Plaintiff's Second ' Amended Complaint. [2008-0035\ans-to-2n,-amd-complaint-021011-cg] y1 6) ADMIT the allegations contained in paragraph"6" of Plaintiff s"Second Amended Complaint. - 7) ADMIT the allegations contained in paragraph"7" of Plaintiff's Second Amended Complaint. 8) ADMIT the allegations.contained in paragraph"8" of Plaintiff's Second Amended Complaint. 9) ADMIT.the allegations contained in paragraph."9" of Plaintiff's Second Amended Complaint. 10) ADMIT the allegations contained in paragraph"10". of Plaintiff's Second . Amended Complaint. 11) Neither admit nor deny the allegations set forth in paragraph"I I" of Plaintiff's- Second Amended Complaint by reason that said Defendants are without sufficient information to form a belief. As to Statement of Facts: 12) Neither admit nor deny the allegations set forth in paragraph"12" of Plaintiff's Second Amended Complaint by reason that said Defendants are without sufficient information to forma belief. 13) Neither,admit nor deny the allegations set forth in paragraph"13 of Plaintiff's Second Amended Complaint by reason that said Defendants are without sufficient information to form a belief. 14) Neither admit nor deny the allegations set forth in paragraph"14" of Plaintiff's Second Amended Complaint by reason that said Defendants are without sufficient information to forma belief. . 15) Neither admit nor deny the allegations set forth in paragraph"15" of Plaintiff's Second Amended Complaint by reason that said Defendants are without sufficient information to form a belief. 16) DENY the.allegations set forth in paragraph"16" of Plaintiff's Second Amended Complaint. - 17) DENY so much of the allegations set forth in the first sentence of paragraph"17" of Plaintiff's Second Amended Complaint wherein it is stated that"[w]hile the Town by its own admission did not maintain records well from 1981"; and as to the remaining allegations contained in paragraph "17" neither admit nor deny said allegations; and in further answering, state that the Plaintiff's reference to Exhibit A was not made a part of the Plaintiff's Second [2008-0035\ans-to-2nd-amd-complaint-021011-cg] 2 I Amended Complaint, and, therefore, Defendants have no exhibit to refer to for a response to the allegations regarding said document. 18) Defendants state that the allegations stated in paragraph"18" of Plaintiff's Second Amended Complaint again reference Exhibit A as first referenced in paragraph"17" of Plaintiffs Second Amended Complaint, and therefore, Defendants neither admit nor deny the allegations contained in paragraph"18" of Plaintiff's Second Amended Complaint by reason that said exhibit was not made a part of Plaintiff's Second Amended Complaint, 19) Defendants state that the allegations stated therein in paragraphs "17 and"18 refer to Exhibit A as again referenced in paragraphs "19" of Plaintiff s Second Amended Complaint, and,therefore, Defendants neither admit nor deny the allegations contained in paragraph"19" of Plaintiff's Second Amended Complaint by reason that said exhibit was not made a part of Plaintiff's Second Amended Complaint.. 20) DENY the allegations contained in the first sentence of paragraph"20" of Plaintiff's Second Amended Complaint; and in further answering, Defendants neither admit nor deny the remaining allegations set forth therein by reason that said Defendants are without sufficient information to form a belief. 21) The allegations contained in paragraph"21" of Plaintiff's Second Amended Complaint call for a conclusion of law and, therefore, no answer is necessary. 22) DENY the allegations contained in paragraph"22" of Plaintiff's Second Amended Complaint. 23) Neither admit nor deny the allegations set forth in paragraph"23" of Plaintiff s Second Amended Complaint by reason that said Defendants are without sufficient information to form a belief. 24) Defendants state that the allegations stated in paragraph "24" of Plaintiff's Second Amended Complaint refer to Exhibit B as referenced.previously in paragraph."23" of Plaintiff's Second Amended Complaint, and therefore;Defendants neither admit nor deny the allegations contained in paragraph "24" of Plaintiff's Second Amended.Complaint by.reason that said exhibit was not made a part of Plaintiff's Second Amended Complaint. 3 25) DENY the allegations contained in paragraph"25" of Plaintiff's Second Amended Complaint. 26) Neither admit nor deny the allegations set forth in paragraph"26" of Plaintiff's Second Amended Complaint by reason that said Defendants are without sufficient information to form a belief. 27) Neither admit nor deny the,allegations set forth in paragraph"27" of Plaintiff s Second Amended Complaint by reason that said Defendants are without sufficient information to form a belief. [2008-0035\ans-to-2""-amd-complaint-021011-cg] 3 I 28) DENY the allegations set forth in the first sentence of paragraph "28" of Plaintiff s Second Amended Complaint; and in further answering the allegation contained in the second sentence of said paragraph, Defendants neither admit nor deny the allegations contained therein by reason that the exhibit referred to as Exhibit C was not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no exhibit to refer to for its response; but should an answer be required by this Court, Defendants DENY the allegations contained therein. 29) Neither admit nor deny the allegations set forth in paragraph"29" of Plaintiff s Second Amended Complaint by reason that the exhibit referred to as Exhibit A was not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no exhibit to refer to for its response; but should an answer be required by this Court, Defendants DENY the allegations contained therein. . 30) Neither admit nor deny the allegations set forth in paragraph"30" of Plaintiff s Second Amended Complaint by reason that the exhibit referred to as Exhibit A was not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no exhibit to refer to for.its response for any of the allegations contained therein; but should an answer be required by this Court, Defendants DENY the allegations contained therein. . 31) Neither admit nor deny the allegations set forth in paragraph"31" of Plaintiff s Second Amended Complaint;by.reason that the document referenced therein and the Exhibit D referred to was not made a part of Plaintiff s Second Amended Complaint; and therefore, Defendants have no exhibit upon which to base its response for any of the allegations contained therein; but should an answer be required by this Court, Defendants DENY the allegations contained therein. 32) Neither admit nor deny the allegations set forth in paragraph"32" of Plaintiff s Second Amended Complaint, by reason that the document referred to was not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no document upon which to base its response for any of the allegations contained therein; but should an answer be required by this Court, Defendants DENY,the allegations contained therein. 33)' Neither admit nor deny the allegations set forth in paragraph "33" of Plaintiff s Second Amended Complaint, by reason that the document referred to was not made a part of Plaintiff s Second Amended Complaint, and therefore,Defendants have no document upon which to base its response for any of the allegations contained therein; but should an answerybe required by this Court, Defendants DENY the allegations contained therein. 34) Neither admit nor deny the allegations set forth in paragraph"34"of Plaintiffs Second Amended Complaint by reason that said Defendants are without sufficient information to form a belief. 35) Neither admit nor deny the allegations set forth in paragraph"35" of Plaintiff s Second Amended Complaint by reason that said Defendants are without sufficient information to [2008-0035\ans-to-2Id-amd-complaint-021011-cg] 4 form a belief. 36) Neither admit nor deny the allegations set forth in paragraph"3.6 of Plaintiff's Second Amended Complaint by reason that said Defendants.are without sufficient information to form a belief. 37) Neither admit nor deny the allegations set forth in paragraph "37" of Plaintiff s Second Amended Complaint, by reason that the exhibit referred to was not made a part of Plaintiff's Second Amended Complaint, and therefore, Defendants have no exhibit.upon which to base its response for any of the allegations contained therein; but should an answer be required by this Court, Defendants DENY the allegations contained therein. 38) Neither admit nor deny the allegations set forth in paragraph"38" of Plaintiff's Second Amended Complaint, by reason that the document referred to was not made a part of Plaintiff's Second Amended Complaint, and therefore, Defendants have no exhibit upon which to base its response for any of the allegations contained therein;.but should an answer be required by this Court, Defendants DENY the allegations contained therein. 39) Neither admit nor deny the allegations set forth in paragraph"39" of Plaintiff s Second.Amended Complaint, by reason that the exhibit referred to as Exhibit E was not made a part of Plaintiff's Second Amended Complaint, and therefore, Defendants have no exhibit.to refer to for its response for any of the allegations contained therein; but should an answer be required by this Court, Defendants DENY the allegations contained therein. 40) Neither admit nor deny the allegations set forth in paragraph"40 of Plaintiff's Second Amended Complaint, by reason that the document referred to were not made a part of Plaintiff's Second Amended Complaint, and therefore, Defendants have no documents to refer to for its response for any of the allegations contained therein; but should an answer be required by a this Court, Defendants DENY the allegations contained therein. 41) Neither admit nor deny the allegations set forth in paragraph"41" of Plaintiff's Second Amended Complaint, by reason that the document referred to were not made a part of Plaintiff's Second Amended Complaint, and therefore, Defendants have no documents to refer to for its response for any of the allegations contained therein;but should an answer be required by this Court, Defendants DENY the allegations contained therein. 42) ADMIT only so much of the allegations contained in paragraph"42"of Plaintiff s Second Amended Complaint wherein it is alleged ".:.the Town Building Department conducted an inspection and issued a Certificate of Occupancy as indicated in the Town's assessing records" and neither admit nor deny the remaining allegations set forth in said.paragraph by -reason that said Defendants are without sufficient information to-form a belief. ` 43) Neither admit nor,deny.the allegations set forth in paragraph"43" of Plaintiff s x - Second Amended Complaint by reason that said Defendants are without sufficient information to form a belief. [2008-0035\ans-to-2"d-amd-complaint-021011-cg] 5 44) DENY the allegations contained in paragraph"44" of Plaintiff's. Second Amended Complaint. 45) DENY the allegations contained in paragraph"45" of Plaintiff's Second Amended Complaint. 46) DENY the allegations set forth in the first sentence of paragraph "46" of Plaintiff s Second Amended Complaint; and in.further answering the allegations contained in the second sentence of DENY the allegations set forth in the first sentence of paragraph"28" of Plaintiff s Second Amended Complaint, neither admit nor deny the allegations set forth in paragraph"37"of Plaintiff s Second Amended Complaint, by reason that the exhibit referred to was not made apart of Plaintiffs Second Amended Complaint, and therefore, Defendants have no exhibit upon which to base its response for any of the allegations contained therein; but should an answer be required by this Court, Defendants DENY the allegations contained therein.. 47) Neither admit nor deny the allegations set forth in the first and second sentences . of paragraph"47"of Plaintiff s Second Amended Complaint by reason that said Defendants are without sufficient information to form a belief; and in further answering the allegations contained in the third sentence of said paragraph therein, DENY the same; and as to the fourth sentence of said paragraph, Defendants state that the Exhibit G referenced therein was not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no exhibit upon which to base its response for the allegations contained in the fourth sentence therein; but should an answer be required by this Court, Defendants DENY the allegations contained therein. 48) Neither admit not deny the allegations set forth in paragraph"48" of Plaintiff s Second Amended Complaint by reason that said Defendants are without sufficient information to' , form a belief. 49) As to the allegations contained.in the first sentence in paragraph"49" of Plaintiff s Second Amended Complaint, Defendants are without sufficient information to form a belief; and further answering the allegations contained in the second sentence of said paragraph,, Defendants neither admit nor deny the allegations set forth therein by reason that the Exhibit H referred to therein was not made a part of Plaintiff s Second,Amended Complaint, and therefore, m Defendants have no document on which to base its response. 50) Neither admit nor deny the allegations set forth in the first sentence of paragraph "50"of Plaintiffs Second Amended Complaint wherein it is stated that"Ms. Limoncelli relied. on information form the Town of Barnstable Assessor's Office and the Board of Health"by reason that said Defendants are without sufficient information to form a belief; and further state that the documents referenced as Exhibits F and G were not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no document on which to base its response. 51) Neither admit nor deny the allegations set forth in paragraph"51" of Plaintiff s Second Amended Complaint by reason that said Defendants are without sufficient information to form a belief. ' [2008-0035\ans-to-2"d-amd-complaint-021011-cg] 6 52) Neither admit nor deny the allegations set forth in paragraph"52" of Plaintiff's Second Amended Complaint by reason that said Defendants are without sufficient information to form a belief. 53) Neither admit nor deny the allegations set forth in paragraph"53" of Plaintiff's Second Amended Complaint by reason that said Defendants are without sufficient information to form a belief. 54) Neither admit nor deny the allegations set forth in paragraph"54" of Plaintiff s Second Amended Complaint but in further answering, DENY that Linda Edson was a Zoning Enforcement Officer or was acting under the direction and with the full authority of the Building Commissioner; and in further answering,should an answer be required by this Court, Defendants DENY all other allegations in said paragraph contained; and-further state that Exhibit I referred to therein in the second sentence of said paragraph, was not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no exhibit upon which to base its response for any of the allegations contained therein. 55) DENY the allegations contained in paragraph"55" of Plaintiff s Second Amended Complaint. 56) DENY the allegations contained in paragraph"56" of Plaintiff s Second Amended Complaint. 57) DENY the allegations contained in paragraph"57" of Plaintiff s Second - Amended Complaint. 58) DENY the allegations contained in paragraph"58" of Plaintiff's Second Amended Complaint. 59) Neither admit nor deny the allegations set forth in paragraph"59" of Plaintiff s Second Amended Complaint, by reason that Exhibit J referred,to therein was not made a part of Plaintiff's Second Amended Complaint, and therefore, Defendants have no exhibit upon which. to base its response for any of the allegations contained therein;but should an answer be required by this Court, Defendants DENY the allegations contained therein. 60)" DENY the allegations contained in paragraph"60"..of Plaintiff s Second Amended Complaint. 61) DENY the allegations contained in paragraph"61" of Plaintiff s Second Amended Complaint. 62) DENY the allegations contained in paragraph"62" of"Plaintiff s Second Amended Complaint: 63) DENY the allegations contained in paragraph"63" of Plaintiff s Second Amended Complaint. [2008-0035\ans-to-2nd-amd-complaint-021011-cg] 7 ' 64) DENY the allegations contained in paragraph"64" of Plaintiff s Second Amended Complaint. 65) DENY the allegations contained in paragraph "65"of Plaintiff s -Second Amended Complaint. 66) DENY the allegations contained in paragraph"66" of Plaintiff s Second Amended Complaint. 67) DENY the allegations contained in paragraph"67" of Plaintiff's Second Amended Complaint. 68) Neither admit nor deny the allegations set.forth in paragraph"68"of Plaintiff s Second Amended Complaint, by reason that Exhibit K referred to therein was not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no exhibit upon which to base its response for any of the allegations contained therein; but should an answer be required by this Court, Defendants DENY the allegations contained therein. 69) DENY the allegations contained in paragraph "69" of Plaintiff s Second Amended Complaint. 70) Neither admit nor deny the allegations set forth in paragraph"70" of Plaintiff s Second Amended Complaint, by reason that the documents referred to therein were not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no exhibits upon which to base its response for any of the allegations contained therein; but should an answer be required by this Court, Defendants DENY the allegations contained therein. 71) Neither admit nor deny the allegations set forth in paragraph"71" of Plaintiff s Second Amended Complaint,by reason that Exhibit L referred to therein was not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no documents upon -which to base its responses for any of the allegations contained therein; but should an answer be required by this Court, Defendants DENY the allegations contained therein. 72) ADMIT only so much of the allegations contained in the first sentence of paragraph"72"of Plaintiff s Second Amended Complaint wherein it is stated "Following Perry's denial of the ... building permit, the Plaintiff appealed the Building Inspector's decision to the ZBA"; and as to the remaining allegations in said sentence contained, Defendants state that the remaining statements call for a.conclusion of law and no answer is required;and further answering, neither admit nor deny the remaining allegations set forth in paragraph"72" of Plaintiff s Second Amended Complaint, by reason that Exhibit M and other attachments referred to therein were not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no documents upon which to base its responses for any of the remaining allegations contained therein; but should an answer be required by this Court, Defendants DENY the allegations contained therein. [2008-0035\ans-to-2"'-amd-complaint-021011-cg] 8 73) ADMIT only so much of the allegations contained in paragraph"73" of Plaintiff's Second Amended Complaint wherein it is stated"On or about January 9, 2008, the matter was ... before the ZBA..." and DENY the remaining allegations of said paragraph. 74) ADMIT only so much of the allegations contained in the first sentence of paragraph"74"of Plaintiff's Second Amended Complaint wherein it is-stated that "At the time of the ZBA hearing the Plaintiff submitted additional...material"but DENY the remaining allegations contained therein; as to the allegations contained in the second sentence of said paragraph, Defendant neither admit nor deny the allegations set forth therein that the documents and video referred to therein were not made a part of Plaintiff's Second Amended Complaint, and therefore, Defendants have no basis upon which to respond to any of the allegations contained therein; but should an answer be required by this Court,Defendants DENY the allegations contained therein. 75) ADMIT only so much of the allegations contained in paragraph "75"of Plaintiff s Second Amended Complaint,wherein it is alleged that"...additional material was presented ... to the ZBA", but in furthering answering, neither admit nor deny the remaining allegations set forth therein by reason that said Defendants are without sufficient information to form a belief. 76) Neither admit nor deny the allegations set forth in paragraph"76" of Plaintiff's Second Amended Complaint by reason that Exhibit L referred to therein were not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no exhibit upon which to base its response for any of the allegations contained therein; but should an answer be required by this Court, Defendants DENY the allegations contained therein. 77) Neither admit nor deny the allegations.set forth in paragraph"77" of Plaintiff's Second Amended Complaint but state the decision of the Zoning Board of Appeals referred to. therein would speak for itself had it been made a part of this pleading; and further answering, DENY each and every allegation not specifically admitted herein. 78) DENY the allegations set forth in paragraph"78" of Plaintiff s Second Amended Complaint, by reason that the Decision referenced thereto as Exhibit O was not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no exhibit upon which to base its response for any of the allegations contained therein; but should an answer be required by this Court, Defendants DENY the allegations contained therein. 79) DENY all the allegations contained in paragraph"79" of Plaintiff s Second Amended Complaint: As to COUNT I (APPEAL UNDER MGLA, Chapter 40A, s. 17): The Defendants repeat and reallege those answers to the allegations set forth in paragraphs "I"through"79"of the general allegations of Plaintiff s Second Amended . Complaint, as realleged in Plaintiff s unnumbered paragraph following COUNT-I (Appeal Under [2008-0035\ans-to-2nd-amd-complaint-021011-cg] 9 MGLA, Chapter 40A, s. 17) of Plaintiff's Second Amended Complaint, in the same manner as though fully set forth herein. 80) DENY the allegations contained in paragraph"80" of COUNT-1 (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff's Second Amended Complaint; and further answering, state that Exhibit L referenced therein was not made a part of Plaintiff's Second Amended Complaint, and therefore, Defendants have no document upon which to base its responses to Plaintiff's allegations contained therein. 81) DENY the allegations contained in paragraph"81" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff s Second Amended Complaint; and further answering, state that Exhibit L referenced therein was not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no document upon which to base its responses to Plaintiff s allegations contained therein. 82) DENY the allegations contained in paragraph"82" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff's Second Amended Complaint; and further answering, state that the documents referenced therein were not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no documents upon which to base its responses to Plaintiffs allegations contained therein. 83) DENY the allegations contained in paragraph"83" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff s Second Amended Complaint; and further answering, state that the documents referenced therein were not made apart of Plaintiff s Second Amended Complaint, and.therefore, Defendants have no documents upon which to base its responses to Plaintiff s allegations contained therein. 84) DENY the allegations contained in paragraph"84" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff s Second Amended Complaint. 85) DENY the allegations contained in paragraph"85" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff s Second Amended Complaint; and further answering, state that the documents referenced therein were not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no documents upon which to base its responses to Plaintiff s allegations contained therein. 86) DENY the allegations contained in paragraph"86 of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff s Second Amended Complaint; and further answering, state that the referenced approvals and acceptances of documents referred to therein were not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no documents upon which to base any further responses to Plaintiff s allegations contained therein; but should an answer be required by this Court, Defendants DENY the allegations contained therein. 87) DENY the allegations contained in paragraph"87" of COUNT I (Appeal Under MGLA; Chapter 40A,s. 17) of Plaintiff s Second Amended Complaint; and further answering, [2008-0035\ans-to-2nd-amd-complaint-021011-cg] 10 state that the referenced permit referred to therein was not made a part of Plaintiff's Second Amended Complaint, and therefore,Defendants have no document upon which to base any further responses to Plaintiff's allegations contained therein. 88) DENY the allegations contained in paragraph"88" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff's Second Amended Complaint; and further answering, state that the documents referred to therein.were not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no documents upon which to base any further responses to Plaintiff's allegations contained therein. 89) DENY the allegations contained in paragraph"89" of COUNTrI (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff's Second Amended Complaint; and further answering,, state that the document referred to therein.was not made a part of Plaintiff s Second Amended Complaint, and therefore,Defendants have no document upon which to base any further responses to Plaintiff's allegations contained therein. 90) DENY the allegations contained in paragraph`.`90" of COUNT F(Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff s Second Amended Complaint; and further answering, state that the documents referred to therein were not made a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no documents upon which to base any further responses to Plaintiff s allegations.contained therein. 91) DENY the allegations contained in paragraph"91" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiffs Second Amended Complaint; and further answering,- state that the document referred to therein was not made.a part of Plaintiff s Second Amended Complaint, and therefore, Defendants have no document upon which to base any further responses to Plaintiff s allegations contained therein. 92) DENY the allegations contained in paragraph"92" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff s Second Amended Complaint. 93) DENY the allegations contained in paragraph"93" of COUNT I (Appeal Under MGLA,Chapter 40A, s. 17) of Plaintiffs Second Amended Complaint; and further answering, state that the document referred to therein was not made a part of Plaintiff s Second Amended Complaint, and therefore,,Defendants have no.document upon which to base any further responses to Plaintiffs allegations contained therein. 94) DENY the allegations contained in paragraph"94'.' of COUNT 1,(Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff's Second Amended Complaint. 95) DENY the allegations contained in the introductory paragraph numbered "95" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff s Second Amended Complaint;together with each of its sub-paragraphs as designated (a),(b), (c), (e), (f), (g), (h) and`(i)of Count I of Plaintiff s Second Amended Complaint; as to the allegations contained in sub-paragraph (d) of said paragraph, said allegations call for a conclusion of law and, therefore, no answer is necessary, ' [2008-00351ans-to-2°a-amd-complaint-021011-cg] z 1I 96) DENY the allegations contained in paragraph"96" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiffs Second Amended Complaint. 97) DENY the allegations contained in paragraph"97" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff's Second Amended Complaint;and further answering, state that the document referred to therein was not made a part of Plaintiff's Second Amended Complaint, and therefore, Defendants have no document upon which to base any further responses to Plaintiff's allegations contained therein. 98) DENY the allegations contained in paragraph"9.8" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff's Second Amended Complaint. 99) DENY the allegations contained in paragraph"99" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiffs Second Amended Complaint. 100) DENY the allegations contained in paragraph"100" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff s Second Amended Complaint: 101) DENY the allegations contained in paragraph"101 of COUNT I (Appeal Under ' MGLA, Chapter 40A, s. 17)of Plaintiff s Second Amended Complaint. 102) DENY the allegations contained in paragraph"102"of COUNT-1 (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff s Second Amended Complaint. 103) DENY the allegations contained in paragraph"103" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff s Second Amended Complaint. 104) DENY the allegations contained in paragraph"104" of COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) of Plaintiff s Second Amended Complaint; and any and all allegations contained in Count I of Plaintiff s Second Amended Complaint not herein specifically admitted. As to COUNT II (ESTOPPEL): A The Defendants repeat and reallege those answers to the allegations set forth in ` A paragraphs "1" through"79" of the general allegations of Plaintiff s Second Amended Complaint, as realleged in Plaintiff s unnumbered paragraphs following COUNT I (Appeal Under MGLA;Chapter 40A, s. 17) in paragraphs "80"through"104 and as realleged in Plaintiff s unnumbered paragraph following COUNT II (Estoppel) of Plaintiff s Second Amended Complaint, in the same manner as though fully set forth herein. 105) DENY the allegations contained in paragraph"105"of COUNT II (Estoppel) of Plaintiff s Second Amended�Complaint; DENY the allegations contained in paragraph"97" of COUNT II of Plaintiff s Second Amended Complaint;and further answering, state thaf the documents referred to therein were not made a part of Plaintiff s Second Amended Complaint, [2008-0035\ans-to-2"°-amd-complaint-021011-cg] 12 J and therefore, Defendants have no documents upon which to base any further responses to Plaintiff's allegations contained therein. 106) DENY the allegations contained in paragraph."106" of COUNT.II (Estoppel) of Plaintiff's Second Amended Complaint. 107) DENY the allegations contained in paragraph"107" of COUNT II (Estoppel) of' Plaintiff's Second Amended Complaint. 108) DENY the allegations contained in paragraph "108" of COUNT IT(Estoppel) of Plaintiff's Second Amended Complaint: - 109) DENY the allegations contained in paragraph"109" of COUNT II (Estoppel) of Plaintiff's Second Amended Complaint. 110) DENY the allegations contained in paragraph"110"of COUNT II ((Estoppel) of Plaintiff's Second Amended Complaint. 111) DENY the allegations contained in paragraph"11 F'of COUNT II (Estoppel) of Plaintiff's Second Amended Complaint. . COUNT III (DECLARATORY JUDGMENT); The Defendants repeat and reallege those answers to the allegations set forth in paragraphs "1"through"79" of the general allegations of Plaintiff's Second Amended Complaint, as realleged in Plaintiff's unnumbered paragraphs following COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) in paragraphs "80"through "104" and COUNT II (Estoppel) in paragraphs "105"through"111", and as realleged in COUNT.III (Declaratory Judgment) of Plaintiff's Second Amended Complaint, in the same manner as though fully set forth herein. 112) DENY the allegations contained in paragraph"112"of COUNT III (Declaratory . Judgment) of Plaintiff's Second Amended Complaint; and in further answering, state that the documents referred to therein in said paragraph were not made a part of Plaintiff's Second Amended Complaint, and therefore, Defendants have no documents upon which to base any further responses to Plaintiff s allegations contained therein: 113) DENY the allegations contained in paragraph"113"of COUNT III (Declaratory Judgment) of Plaintiff's Second Amended Complaint,together with all other allegations in said Count III not hereinbefore specifically admitted. r, COUNT IV(MASSACHUSETTS TORT CLAIMS ACT,M.G. L. C. 258): The Defendants repeat and reallege those answers to the allegations set forth in paragraphs "1"through"79" of the general allegations of Plaintiff's Second Amended Complaint, as realleged in Plaintiff's unnumbered paragraphs following COUNT I (Appeal Under MGLA, Chapter 40A, s. 17) in paragraphs "80"through"104", and COUNT II (Estoppel) [2008-0035\ans-to-2""-amd-complaint-021011-cg] 13 i in paragraphs "105"through"111", and COUNT III (Declaratory Judgment) in paragraphs "112"through"113", and realleged in COUNT IV (Massachusetts Tort Claims Act, MGL Chapter 258) in the same manner as though fully set forth herein. 114) DENY the allegations contained in paragraph"114" of Count IV (Massachusetts Tort Claims Act, MGL Chapter 258) of,Plaintiff's Second Amended Complaint and in furthering answering, state that Exhibit Q referred to therein in said paragraph was not made a part of Plaintiff's Second Amended Complaint, and.therefore, Defendants have no document upon which to base any further responses to Plaintiff's allegations contained therein. 115) DENY the allegations in paragraph"115" of Count IV (Massachusetts Tort Claims Act, MGL Chapter 258) on the basis that the"notice"referred to therein in paragraph 114" was not made a part of the Plaintiff's Second Amended Complaint. 116) As to the allegations contained in paragraph "116" of Count IV (Massachusetts Tort Claims Act,MGL Chapter 258) of Plaintiff's Second Amended Complaint,said allegations call for a conclusion of law and, therefore, no answer is necessary; however, to the extent an answer is necessary, Defendants DENY said allegations. 117) DENY the allegations contained in paragraph"117" of Count IV (Massachusetts Tort Claims Act,MGL Chapter 258) of Plaintiff's Second Amended Complaint. 118) DENY the allegations contained in paragraph"118" of Count IV (Massachusetts Tort Claims Act,MGL Chapter 258) of=Plaintiff's Second Amended Complaint. 119) DENY the allegations contained in paragraph"119"of Count IV (Massachusetts Tort Claims Act,MGL Chapter 258) of Plaintiff's Second Amended Complaint. 120) DENY the allegations contained in paragraph"120" of Count IV (Massachusetts Tort Claims Act,.MGL Chapter 258) of Plaintiff's Second Amended Complaint. 121) DENY the allegations contained in paragraph"121"of Count IV (Massachusetts Tort Claims Act,MGL Chapter 258) of Plaintiff's Second Amended Complaint. 122) DENY the allegations contained in paragraph"122'-' of Count IV (Massachusetts Tort Claims Act, MGL Chapter 258) of Plaintiff's Second Amended Complaint. 123) DENY each and every other allegation set forth in the general allegations and Count I(Appeal Under MGLA Chapter 40A, s. 17), Count II (Estoppel), Count III (Declaratory Judgment), and Count IV (Massachusetts Tort Claims Act, MGL Chapter 258) of said Plaintiff's Second Amended Complaint not hereinbefore specifically admitted herein. [2008-0035\ans-to-2"d-amd-6omplaint-021011-cg] 14 AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE: The Plaintiff is barred from recovery under their Second Amended Complaint because said Plaintiff did not commence this action within the time specified under the applicable statutory limitations and,therefore, Plaintiff s Second Amended Complaint should be dismissed. SECOND AFFIRMATIVE DEFENSE: The Plaintiff s claims fail to state a claim upon which relief can be granted and, therefore, Plaintiff s Second Amended Complaint should be dismissed. THIRD AFFIRMATIVE DEFENSE: This Court lacks jurisdiction over the subject matter of the Plaintiffs claims and, therefore, Plaintiffs Second Amended Complaint should be dismissed. FOURTH AFFIRMATIVE DEFENSE: Plaintiffs claims are barred by the Doctrine of Official Immunity, and, therefore, Plaintiff s Second Amended Complaint should be dismissed. FIFTH AFFIRMATIVE DEFENSE: Plaintiff has failed to make a proper presentment pursuant to M.G.L. c. 258 and, therefore, the Plaintiffs claims should be dismissed; and further, Plaintiff s Second Amended Complaint should be dismissed. SIXTH AFFIRMATIVE DEFENSE: At all times relevant hereto, the Defendant Town has acted without malice to Plaintiff and their actions as related to the Plaintiff are privileged by virtue of acting reasonably and in. good faith within the scope of their authority. SEVENTH AFFIRMATIVE DEFENSE: Plaintiffs claims against Defendants are barred by the doctrine of official+immunity. EIGHTH AFFIRMATIVE DEFENSE: Plaintiff should have exercised due'diligence in the purchase of the subject property. - NINTH AFFIRMATIVE.DEFENSE:° The alleged negligent conduct by Town employees represents discretionary sanctions. TENTH AFFIRMATIVE DEFENSE: The alleged actions of individual town employees cannot result in a rezoning without the approval of the Town's legislative body. ELEVENTH AFFIRMATIVE DEFENSE: The principles of estoppel do not{apply to the actions of public.officials. p . . [2008-0035\ans-to-2""-amd-complaint-021011-cg] 15 TWE LVETH AFFIRMATIVE DEFENSE: The Plaintiff knew, prior to the purchase, that the property did not contain a legal apartment use. THIRTEENTH AFFIRMATIVE DEFENSE: ` Plaintiff has not been deprived of economic use of the premises since the proposed use of the property was not a permitted use under the Town's zoning ordinances and was not a permitted use at the time of the Plaintiffs purchase of the property. FOURTEENTH AFFIRMATIVE DEFENSE: Plaintiff is eligible to participate in the Town's Accessory Affordable Housing Program which opportunity was offered to Plaintiff but was declined by Plaintiff. FIFTEENTH AFFIRMATIVE DEFENSE: Linda Edson is an independent contractor and not a municipal employee. SIXTEENTH AFFIRMATIVE DEFENSE: The allegations contained herein involving the Town of Barnstable relate to discretionary acts exempt under G.L. c. 258. SEVENTEETH AFFIRMATIVE DEFENSE: M.G.L. c. 258 does not apply to "any claim based upon the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval; order or similar authorization" EIGHTEENTH AFFIRMATIVE DEFENSE: Upon information and belief, Plaintiff has recovered monetary damages from the real estate broker who participated in the sale of the premises at 1.81 School Street, Cotuit, MA. NINETEENTH AFFIRMATIVE DEFENSE: ' Upon information and belief, Plaintiff has instituted a lawsuit against the seller of the premises located at 181 School Street, Cotuit, MA. TWENTIETH AFFIRMATIVE DEFENSE: By Decision of the Barnstable Superior Court on October 291h, 2010, this Court dismissed Count IV (Massachusetts Tort Claims Act, MGL Chapter 258) of the Plaintiff's Complaint, and therefore, this Court-lacks jurisdiction over the subject matter of-Count IV (see copy of Decision of Dismissal attached hereto). TWENTY-FIRST AFFIRMATIVE DEFENSE: Count IV of Plaintiff's Second Amended Complaint is barred by res judicata. TWENTY-SECOND AFFIRMATIVE DEFENSE: Plaintiff was guilty of contributory negligence. [2008-0035\ans-to-2nkamd-complaint-021011-cg] 16 TWENTY-THIRD AFFIRMATIVE DEFENSE: Plaintiff's claim is barred under the provisions of M.G.L. c. 258, §10(b); TWENTY-FOURTH AFFIRMATIVE DEFENSE: Plaintiff's claim is barred under.the provisions of M.G.L.c. 258, §10(c); TWENTY-FIFTH AFFIRMATIVE DEFENSE: Plaintiff's claim is barred under the provisions of M.G.L. c. 258;§10(e);, TWENTY-SIXTH AFFIRMATIVE DEFENSE: Plaintiff's claim is barred under the provisions of M.G.L. c. 258, §10(f); TWENTY-SEVENTH AFFIRMATIVE DEFENSE: Plaintiff's claim is barred under the provisions of M.G.L. c. 258., §100); WHEREFORE, the Defendants respectfully pray for judgment against the Plaintiff as follows: (1) That a decree be entered dismissing Plaintiff's Second Amended Complaint in its entirety; (2) That a decree be entered affirming the January 23, 2008 Decision of the Barnstable Zoning Board of Appeals in all respects; (3) That judgment be entered in Defendants' favor on all issues as contained in the Plaintiff's general allegations and under all counts of Plaintiff's Second Amended Complaint; ' . (4) That a decree be entered denying Plaintiff s claim for damages as requested under the Massachusetts Tort Claims Act; (5) That,a decree be entered that the Plaintiff s property does not come under the 'provisions of M.G.L.A. chapter 40A,.§6; (6) That a decree be entered denying Plaintiff's prayers to estop the Barnstable Zoning Board from exercising its power to make decisions which-are unfavorable to the Plaintiff and enforcing its zoning restrictions; (7) That a decree be entered denying Plaintiff s,request to declare that a building permit was issued to the Plaintiff for conversion of the garage into a cottage apartment; [2008-0035\ans-to-2""-amd-complaint-021011-cg] -17 (8) That Defendants be granted such other and further relief as to this Honorable Court it deems just and appropriate. Dated: February 1Oth, 2011. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, and its Members, and the TOWN OF BARNSTABLE, Defendants, By their Attorneys, RUTH J. WEIL own Attorney [B.B.O. No. 519285] T.T. DAVID HOUGHTON, 1 st Assistant Town Attorney [B.B.O.No. 241160] CHARLES S. McLAUGHLIN, JR., Assistant Town Attorney ' TOWN OF BARNSTABLE 367 Main Street,New Town Hall Hyannis, Ma. 02601-3907 508-862-4620; 508-862-4724 TO: MICHAEL J. PRINCI, ESQ. (13130#406680) JENI A. LANDERS, ESQ. (BBO#669921) Attorneys for Plaintiff ` WYNN & WYNN, P.C. ` 300 Barnstable Road Hyannis, MA 02601 - - 5087775-3665; 508-7754244 Fax mprinci ,wynnandMnn.comi ' ilandersgwynnandwynn.com . CERTIFICATE OF SERVICE Barnstable, ss: February 10, 2011: I hereby certify under the pains and penalties of perjury that I caused to be served by mailing by first-class mailing to Plaintiff's attorneys, postage prepaid, a copy of the above document on the date written above. . r alre Griffen, Legar A ant Town of Barnsta - [2008-0035\ans-to-2nd-amd-complaint-021011-cg] + .18 J. i COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SUPERIOR COURT CIVIL ACTION NO. 08-00105 SUSAN LIMONCELLI Vs. BARNSTABLE ZONING BOARD OF APPEALS & others'•. MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION'TO DISMISS AND MOTION FOR SUMMARY JUDGMENT ON COUNT IV OF PLAINTIFF'S AMENDED COMPLAINT Plaintiff Susan Limoncelli brought this action appealing the Barnstable Zoning Board of Appeals's ("ZBA") decision denying a permit for improvements to a garage that was converted into a cottage on her property due to a zoning violation and alleging damages under the. Massachusetts Tort Claims Act ("MTCA"). The plaintiff alleges four counts in her Amended Complaint: appeal of the ZBA decision under G. L. c. 40A,-§ 17 (count 1); estoppel (count 2); declaratory judgment(count 3); and liability under the MTCA(count 4). The defendants have two motions before the court. They move to dismiss count four,the MTCA count, because this court lacks subject matter jurisdiction. They also move for summary judgment on the same count claiming that the plaintiffs failed to comply with the presentment requirements of G. L. c. 258, § 4. For the foregoing reasons,the defendants' Motion to Dismiss is ALLOWED. 'This F court declines to reach the defendants' Motion for Summary Judgment because it is moot; it is therefore DENIED. BACKGROUND For purposes of a motion to dismiss,this court will accept the plaintiff's allegations in the Amended Complaint as true. i ' Its members, Gail Nigtingale,,Ron S. Jansson, Daniel M. Creedon III, James R. Hatfield, Sheila Geiler, John Norman, Jeremy Gilmore, Kelly Kevin Lydon; and the Town of Barnstable. 1 • t On August 9, 2005, the plaintiff acquired title to 181 School Street, Cotuit, MA(the "property") from Ruth Grover ("Grover"). The property consists of a three-bedroom house and a second structure that was converted from a garage to a cottage apartment in 1981 by Grover. On August 29, 2005, the plaintiff received a letter from a Zoning Enforcement Officer for the Town of Barnstable (the"Town") informing her that the cottage apartment was unlawful as it violated a zoning ordinance. The plaintiff alleges that the Town condoned the conversion and authorized the cottage apartment, but that due to poor record keeping,the records could not be. ' found. The plaintiff also alleges that Town officials intentionally waited until after the property sale closed before taking action concerning the unlawful cottage. - In 2005 and 2007,the plaintiff requested and was denied renovation permits for the property. She appealed those denials to the ZBA, which denied her appeal. Because the defendants effectively ignored this violation for over two decades and did''not begin enforcing it until after the plaintiff purchased the property, and because of the ZBA's denial of the plaintiff's appeal, the plaintiff claims she is entitled to relief. DISCUSSION I. Standard of Review-Motion to Dismiss The defendants move pursuant to Mass. R. Civ. P. 12(b)(1)to dismiss the Amended Complaint's Count Four for violation of.the MICA. A motion brought pursuant to Rule 12(b)(1) challenges the court's jurisdiction over the subject matter of the complaint. When, as here, a Rule 12(b)(1) motion is unsupported by affidavits, the court reviews the challenge based solely on the allegations contained in the complaint,taken as true for the purposes of resolving the motion. Callahan-v. First Congregational Church of Haverhill, 441 Mass. 699, 709 (2004). The party asserting jurisdiction has the'burden of alleging jurisdictional facts. Miller v. Miller, . 5 448 Mass. 320, 325 (2007). A challenge to subject matter jurisdiction may be raised at any time. Ropt Ltd. P'ship v. Katin, 431 Mass. 601, 607 (2000). The MICA, G: L. c. 258, § 1 et seq., waives sovereign immunity'for certain tort actions brought against the Commonwealth, its municipalities, and certain government agencies. "Public employers shall be liable for . . . loss of property . caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment . . . ." G. L. c: 258, § 2. While the MTCA may provide a remedy for persons injured by the negligent or wrongful acts of governmental entities;"it does so by abrogating sovereign immunity only within a narrow statutory framework." Sharon v. City of Newton, 437 Mass. 99, 111 (2002). The sovereign immunity waiver is not limitless; the`MTCA delineates a number of areas where the Commonwealth has not waived sovereign immunity. G. L. c. 258, § 10. These areas, include: "(c) any claim arising out of an intentional tort;" "(e) any claim based upon the issuance, denial, suspension or revocation or failure,or refusal to issue, deny, suspend or revoke. any permit, license, certificate, approval, order or similar authorization," "(f) any claim based upon the failure to determine whether the property complies with or violates any law, , regulation, ordinance or code,"and"0) any claim based on an act or failure to act to prevent or, diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which•is,not originally caused by the public employer or any other person acting on behalf of the public employer." Id. Furthermore, when assessing the merit of a complaint'under the MTCA;the court must look to the essential,nature of the claim and not only how it is denoted in,the complaint. Schenker v. Binns, 18 Mass. App. Ct. 404 (1984). If the j I • 5 . alleged behavior falls within one of the MTCA's exceptions, then the court lacks subject matter jurisdiction. H. The Alleged Behavior is not Actionable under the MTCA A. Failure to Enforce the Zoning Laws The plaintiff essentially alleges that the Town is liable to her in tort for seeking to remedy the preexisting zoning infraction only after she purchased the property. The MTCA does not waive sovereign immunity for"failure fo . . determine whether the property complies with or violates any law, regulation, ordinance or code." G. L.,c. 258, § 10(f);:see also Lo uidice V. Town of Hanson Zoning Board of Appeals,No. 00-P-611, 53 Mass. App. Ct. 1117, 2002 WL 243442, at *2 (Feb. 13, 2002) (unpublished opinion) (rejecting a claim under the MTCA against a zoning board where the infraction was identified after years of inaction). The defendants' failure to address the improper renovation of the garage into a cottage apartment before 2005 is not actionable under the MTCA. The Act also excludes"any claim based upon the . . . denial [of] . . any permit. G. L. c. 258, § 10(e)., To the"extent that this claim rests on the ZBA's denial of repair permits based on its perception of a zoning violation,that too is not actionable under the MTCA. For these reasons,the Amended Complaint's count four must be dismissed due to a lack of subject matter. jurisdiction. B. Other Arguments The defendants also claim that count four must be dismissed because the Amended Complaint alleges an intentional tort and is therefore not actionable under G. L. c. 258, § 10(c). Further, defendants argue that because the allegations amount to a failure to prevent harm caused by Grover's improper sale of the'property,the claim is not actionable under-§ 100). Because, as 5 Y 1 discussed above,the alleged actions are already excluded from liability pursuant to § 10(e), (f), the court does not reach these arguments. III. The Defendants' Motion for Summary Judgment The defendants also move for summary judgment on count four. Because this court lacks subject matter jurisdiction over this count due to the defendants' sovereign.immunity and G. L. c. 258, § 10, this court declines to address the now-moot summary judgment motion. The motion is therefore denied. ORDER It is therefore ORDERED that the defendants' Motion to Dismiss be ALLOWED. It is further ORDERED that defendants' Motion for Summary Judgment be DENIED as moot. By the court(Quinlan, J.) r John S. Dale, First Assistant Clerk Date: October 29, 2010 A true copy, Attes � Clerk i r � rT`�t bw�c `TOWN OF BARNSTABLE Barnstable h t • NMIBEMICBft BARNSTABLE. ,._ OFFICE OF TOWN ATTORNEY MASS. o� I �® 1639 ��° ... 367,MAIN STREET, rED Ml p �, HYANNIS, MASSACHUSETTS 02601,390-7 ,. . 2007 RUTH J.WEIL,:Town Attorney „ ruth.weil@town.barnstable.ma.us T.DAVID HOUGHTON, lit AssistahYTown--Attorney david.houghton@town.barnstable.ma.us CHARLES S.McLAUGHLIN,JR.,Assistant Town Attorney charles.mclaughlin@town.barnstable.ma.us CLAIRE R.GRIFFEN,Paralegal/Legal Assistant claire.griffen@town.barnstable.ma.us PAMELA D.GORDON,Legal Clerk TEL.508-862-4620•FAX.508-862-4724 December 2, 2010 Thomas Perry, Building Commissioner Town of Barnstable 200 Main Street Hyannis, MA 02601-4002 Linda Edson, Zoning Enforcement Office of Building Commissioner Town of Barnstable 200 Main Street Hyannis, MA 02601-4002 Re: Limoncelli V. Town of Barnstable Zoning-Board of Appeals, et a1 Witness Subpoenas: Thomas Perry; Linda Edson Trial Date: Monday,December 20, 2010, 9:00.A.M. Barnstable Superior Court: Dkt. No. BACV 2008-105 Our File: 2008-0035 Dear Tom and Linda: We received the.enclosed revised Witness Subpoenas from the Plaintiff's attorney, Michael Princi, for your appearance at trial on Monday,December 20,2010, at 0:00 A.M. in the Barnstable Superior Court: I would ask that you diary your calendars accordingly. Please don't hesitate to contact me with any questions. s' o _. Thank you. .f r Zz Sincerely, - e N RJW:cg Luth . Weil Town Attorney Enc. of Barnstable [2008-003 5Uetter-subpoenas-perry&edson-122010] E;:W)yy� nn &Wynn, IP,C • ATTORNEYS • 300 Barnstable Road November 29, 2010 Hyannis,MA 02601 (508) 775-3665 Fax(508) 775-1244 1 tp:// w.wynn Via First Class Mail http://www.wynnwynn.com Ruth Weil, Esq. Town Counsel Jeni A.Landers Town of Barnstable Steven H.Long Jeffrey L.Madison 367 Main Street Richard A.Martone Kevin P.McRoy** Hyannis, MA 02601 Seth D.Miller Robert F.Mills Charles D.Mulcahy RE: Limoneelli v.Town of Barnstable John J.O'Day,Jr Kevin J.O'Malley DOCKET NO. BACV2008-105 Raymond C.Pelote* Thomas E.Pontes Michael J.Princi Ryan E.Prophett Dear Attorney.Well: Rebecca C.Richardson Janice E.Robbins William Rosa* Enclosed herewith are revised Subpoenas to Appear for Trial for Ms. Edson Dina M.Swanson Andrew A.Toldo and MT. Pe John A.Walsh . Paul F.Wynn Thomas J.Wynn If you have any questions regarding the revised Subpoena's please do not o counsel hesitate to call. Thank you for your assistance. Hon.Robert L.Steadman(Ret.) Hon.James F.McGillen,11(Ret.)'. Keough&Sweeney Very truly yours, William E.O'Keefe W; N & , P.C. Admitted: *Massachusetts and Rhode Island **Massachusetts and New Hampshire - - - M hael J. i i MJP/crs enclosures p DEC 01 2010 TOWN.ATTORNEY TOWN OF BARNSTABLE Affiliate Offices: Raynham 90 New State Highway•Raynham,MA 02767 • (508)823.4567 Vineyard Haven 15 Church Street Rear•Vineyard Haven,MA 02568 (508)693-6832 rw COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS. SUPERIOR COURT DEPT. CIVIL DOCKET NO .2008-105 SUSAN LIMONCELLI Plaintiff V. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. JANSSON, DANIEL M. CREEDON III, JAMES R. HATFIELD, SHEILA GEILER, JOHN NORMAN, JEREMY GILMORE, KELLY KEVIN LYDON and the TOWN OF BARNSTABLE Defendants SUBPOENA TO APPEAR FOR TRIAL TO: Thomas Perry,Building Commissioner Ruth Weil,Esq. 200 Main Street Hyannis,MA 02601 YOU ARE HEREBY COMMANDED in the name of the Commonwealth of Massachusetts in accordance with the applicable provisions of the Massachusetts Rules of Civil Procedure to attend the trial of the above-captioned matter at the Barnstable County Superior Court,3195 Main Street,Route 6A, on Monday,December 20,2010 at 9:00 aM. Your failure, without adequate excuse, to obey this subpoena may be deemed in contempt of the Court in this action is pending. Respe tfully subm tte ; The ain4lf By r Atto ey Then personally appeared the above named ����""���''"''��l Michael J Pri ei B O' 06680 �.�` LAR/,0 ''%, Michael J. Princi and ackno • F '% Wynn& P.C. '°� O6.2v��q;?s 300 Barn a e Road foregoing.instrument to be ;°o'��� '�RAN;. his free act and deed. . -Hyannis, M 02601 (508) 775-�665 NW o//ary Public: Jeni A. Landers. %,;NOTARY P�OV�G��� N y Commission Expires: 2/46/15 �����►���"�""���\ 4 Sep'red ST, *IMF.od Bares nst'able-��6frr� ti TOWN OF BARNSTABLE i ttARNSTABLE. • OFFICE OF TOWN ATTORNEY y MASS. �a ° t639. 367 MAIN STREET o„IfDM�a. HYANNIS, MASSACHUSETTS 02601-3907 2007 RUTH J.WEIL,Town Attorney. ruth.weiI@town.barnstable.ma.us T. DAVID HOUGHTON, 1 st Assistant Town Attorney david.houghton@town.barnstable.ma.us CHARLES S.McLAUGHLIN,JR.,Assistant Town Attorney charles.mclaughlin@town.barnstable.ma.us CLAIRE R. GRIFFEN, Paralegal/Legal Assistant claire.griffen@town.barnstable.ma.us PAMELA D.GORDON, Legal Clerk TEL.508-862-4620 •FAX.508-8624724 March 3, 2008 Scott Nickerson, Esq., Clerk 1 ' Barnstable Superior Court, Civil ., County Court Complex, Main Street : E , P.O. Box 425 Barnstable, Ma. 02630 ` 'Re: ,,C.A. No. 2008-00105 ' Susan Limoncelli v. Town of Barnstable Zoning Board of Appeals, of 1 Our File Ref: #2008-0035 Dear Mr. Nickerson: �\ Enclosed herewith please find for filing with the Superior Court the Answer to Plaintiff's Complaint, together with the Certificate of Service, of a copy of the same upon the Plaintiff's attorney therein. Thank you. Sincerely yours, RJW:cg Ruth J. , Town Attorney'- Eric. ;'Town of Barnstable cc: Michael L Princi, Esq. cc: Zoning Board of Appeals cc: Building Commissioner • a [2008-0035\nickanswerlimon] I f COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A.No. BACV2008-00105 --------------------------------------------------------- SUSAN LIMONCELLI, ) Plaintiff, ANSWER OF DEFENDANTS V. - ) TO PLAINTIFF'S COMPLAINT WITH TOWN OF BARNSTABLE ZONING AFFIRMATIVE DEFENSES. BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. ) JANSSON, DANIEL M. CREEDON III, JAMES R. HATFIELD, SHEILA GEILER, ) JOHN NORMAN, JEREMY GILMORE, ) KELLY KEVIN LYDON, and the TOWN OF BARNSTABLE, ) Defendants. ) --------------------------------------------------------- Pursuant to M.G:L.A. c. 40A,.§17,the Defendants, in answer to the Plaintiff s Complaint, show to the Court as follows: As to Facts: 1. DENY the allegations contained in paragraph"P of Plaintiffs Complaint. 2. Neither admit nor deny the allegations set forth in paragraph"2" of Plaintiff s Complaint by reason that said Defendants are without sufficient information to form a belief. 3. ADMIT the allegations contained in paragraph"3" of Plaintiffs Complaint. 4. ADMIT the allegations contained in paragraph"4" of Plaintiff s Complaint. 5. ADMIT the allegations contained in paragraph"5" of Plaintiff s Complaint. 6. ADMIT the allegations contained in paragraph"6" of Plaintiff s Complaint. 7. ADMIT the allegations contained in paragraph"7" of Plaintiff s Complaint. 8. ADMIT the allegations contained in paragraph"8" of Plaintiff s Complaint. 9. ADMIT the allegations contained in paragraph-"9" of Plaintiff s Complaint. 10. ADMIT the allegations contained in paragraph"10" of Plaintiff s Complaint. [2008-0035\answertocomplaintrjwcg] I 11. Neither admit nor deny the allegations set forth in paragraph"11" of Plaintiff's Complaint by reason that said Defendants are without sufficient information to form a belief. 12. Neither admit nor deny the allegations set forth in paragraph"12" of.Plaintiff s Complaint by reason that said Defendants are without.sufficient information to form a belief. 13. Neither admit nor deny the allegations set forth in paragraph"13" of Plaintiff s Complaint by reason that said Defendants are without sufficient information to form a belief. 14. Neither admit nor deny the allegations set forth in paragraph"14" of Plaintiff's Complaint by reason that said Defendants are without sufficient information to form a belief. 15. Neither admit nor deny the allegations set forth in paragraph'15" of Plaintiff's Complaint by reason that said Defendants are without sufficient information to form a belief. 16. DENY the allegations set forth in paragraph"16" of Plaintiff's Complaint. 17. DENY so much of the allegations set forth in the first sentence of paragraph"'17" wherein it is stated that"[w]hile the Town by its own admission did not maintain records well from 1981 and as to the remaining allegations contained in paragraph"17"neither admit nor deny said allegations but state that the DaLuz letter identified therein and attached to Plaintiff's Complaint as Exhibit"A" speaks for itself and DENY any allegation not specifically admitted herein. 18. Neither admit nor deny the allegations contained set forth in paragraph"18" of Complaint's Complaint but state that the DaLuz letter identified therein and attached to Plaintiff's Complaint as Exhibit"A" speaks for itself, and DENY any allegation not specifically admitted herein. 19. DENY the allegations set forth in paragraph"19" of Plaintiff's Complaint. 20. ADMIT the allegations contained in the first sentence of paragraph"20" of Plaintiffs Complaint; as to the allegations contained in the second sentence of said paragraph, DENY the allegations set forth in said sentence 21. Neither admit nor deny the allegations set forth in.paragraph"21" of Plaintiffs Complaint by reason that said Defendants are without sufficient information to form a belief. 22. DENY the allegations contained in paragraph"22" of Plaintiff's Complaint. 23. . DENY the allegations contained in paragraph"23"of Plaintiff's Complaint. 24. DENY the allegations.contained in paragraph"24" of Plaintiff's Complaint. 25. Neither admit nor deny the allegations contained set forth.in paragraph"25" of Plaintiff s Complaint but state that the DaLuz letter identified therein and attached to Plaintiff s [2008-003 Manswertocomplaintrjwcg] 2 r Complaint as Exhibit"A" speaks for itself, and DENY any allegation not specifically admitted herein. 26. Neither admit nor deny the allegations set forth in paragraph"26" of Plaintiff's Complaint but state that the DaLuz letter identified therein and attached to Plaintiff's Complaint as Exhibit"A" speaks for itself, and DENY any allegation not specifically admitted herein. 27. DENY the allegations set forth in paragraph"27" of Plaintiff's Complaint. 28. DENY the allegations set forth in paragraph"28" of Plaintiff s Complaint. 29. DENY the allegations set forth in paragraph "29" of Plaintiff s Complaint. 30. Neither admit nor deny the allegations set forth in paragraph"30" of Plaintiff s Complaint by reason that said Defendants are without sufficient information to form a belief. 31. DENY the allegations set forth in paragraph"31" of Plaintiffs Complaint. 32. DENY the allegations set forth in paragraph"327 of Plaintiff s Complaint. 33. DENY the allegations set forth paragraph"33" of Plaintiffs Complaint. 34. DENY the allegations set forth paragraph "34"of Plaintiff s Complaint. 35. DENY the allegations set forth paragraph"35" of Plaintiffs Complaint. 36. DENY the allegations set forth paragraph"36" of Plaintiff s Complaint. 37. Neither admit nor deny the allegations set forth in paragraph"37" of Plaintiffs Complaint by reason that said Defendants are without sufficient information to form a belief. 38. Neither admit nor deny the allegations contained in paragraph"38" of Plaintiff s :Complaint but state that the document referenced as Exhibit H speaks for itself 39. Neither admit nor deny the allegations set forth.in the.first sentence of paragraph "39"of Plaintiff s Complaint wherein it is stated that"Ms. Limoncelli relied on information form the Town of Barnstable Assessor's Off ice and the Board of Health" by reason that said Defendants are without sufficient information to form a belief; and in further answering, DENY all the remaining allegations contained in paragraph"39 40. Neither admit nor deny the allegations set forth in paragraph"40" of Plaintiff s Complaint by reason that said Defendants are without sufficient information to form a belief. 41. Neither admit nor deny the allegations set forth in paragraph"41" of Plaintiff s Complaint by.reason that said Defendants are without sufficient information to form a belief. 12008-0035\answertocompIaintrjwcgl 3 i 42. Neither admit nor deny the allegations contained in paragraph"42" of Plaintiff's Complaint but state that Exhibit"I" speaks for itself, and DENY any allegation not specifically admitted herein. 43. DENY the allegations contained in paragraph"43" of Plaintiffs Complaint. 44. . DENY the allegations contained in paragraph"44" of Plaintiffs Complaint. 45. ADMIT only so much of the allegations set forth in the first sentence of paragraph "45 of Plaintiff s Complaint wherein it is stated that the document appended to Plaintiff s Complaint as Exhibit"J"was submitted to the ZBA, but in furthering answering, DENY the substance of the allegations contained in said Exhibit"J"; as to the allegations contained in the second sentence of said paragraph, Defendants DENY said allegations. 46. DENY the allegations contained in paragraph"46"of Plaintiff s Complaint. 47. DENY the allegations set forth in paragraph"47" of Plaintiff s Complaint. 48. Neither admit nor deny the allegations contained in paragraph"48 of Plaintiff's Complaint but state that Exhibit"K" speaks for itself, and DENY any allegation not specifically admitted herein. 49. DENY the allegations contained in paragraph"49" of Plaintiff s Complaint. 50. Neither admit nor denythe allegations contained in paragraph"50" of Plaintiff s Complaint but state that.Exhibit"L" speaks for itself, and DENY,any allegation not specifically admitted herein. 51. ADMIT only so much of the allegations contained in the first sentence of paragraph"51" of Plaintiff s Complaint wherein it is stated"Following Perry's denial of the'... building permit, the Plaintiff appealed the Building Inspector's decision to the ZBA" and as to the remaining allegations in said paragraph, said allegations call for a conclusion of law and, therefore,no answer is necessary; 52. ADMIT only so much of the allegations contained in paragraph"52" of Plaintiff s Complaint wherein it is stated"On or about January 9, 2008,the matter was ... before the ZBA..." and DENY the remaining allegations of said paragraph. 53. ADMIT only so much of the allegations contained in the first sentence of paragraph"53" of Plaintiff s Complaint wherein it is stated that"At the time of the ZBA hearing the Plaintiff submitted additional...material"but DENY the remaining allegations contained therein; as to the allegations contained in the second sentence of paragraph"53 of the Plaintiff s complaint, ADMIT that the exhibit referenced as Exhibit."N"was submitted to the ZBA, but DENY the allegations contained therein. 54. ADMIT.the allegations contained in paragraph"54"':of Plaintiff s Complaint but in furthering answering, DENY the allegations contained in the document marked Exhibit"N." :[2008-0035\answertocomplaintrjwcg] . ? 4 55. Neither admit nor deny the allegations contained in paragraph"55" of Plaintiff's . Complaint but state that the exhibit referenced as Exhibit"O" (the decision of the Zoning Board of Appeals) speaks for itself; and DENY any remaining allegations not specifically admitted herein. 56. ADMIT the allegations contained in paragraph"56" of Plaintiff s Complaint. 57. DENY the allegations contained in paragraph"57" of Plaintiff s Complaint. 58. Neither admit nor deny the allegations contained in paragraph"58" of Plaintiff s Complaint but state that Exhibit"P" speaks for itself, and DENY any allegation not specifically admitted herein. As to COUNT 1 (Appeal Under M.G.L. Chapter 40A. s. 17): 59. Defendants repeat and reallege those answers to the general allegations set.forth in paragraphs "1" through "58" of Plaintiffs Complaint, and as realleged-in paragraph "59" of Count I of Plaintiff s Complaint in the same manner as though fully set forth herein. 60. DENY the allegations contained in paragraph"60" of Count I of Plaintiff s Complaint. 61. DENY the allegations contained in paragraph"61" of Count I of Plaintiff's Complaint; in furthering answering, Defendants state that there was no substantiating evidence to support that any building application was submitted or any building permit issued in 1981. 62. DENY the allegations contained in paragraph"62" of Count I of Plaintiff s Complaint. 63. DENY the allegations contained in paragraph"63"of Count I of Plaintiffs Complaint. 64. DENY the.allegations contained in paragraph"64" of Count I of Plaintiff s Complaint. 65. DENY the allegations contained in paragraph"65" of Count I of Plaintiffs Complaint. 66. DENY the allegations contained in paragraph"66" of Count I of Plaintiff s Complaint. 67. DENY the allegations contained in paragraph"67" of Count I of Plaintiff s Complaint. [2008-0035\answertocomp1aintrjwcg] 5 1 . 68. Neither admit nor deny the allegations set forth in paragraph"68" of Count I of Plaintiff's Complaint by reason that said Defendants are without sufficient information to form a belief. 69. DENY the allegations set forth in paragraph"69" of Count I of Plaintiff s Complaint. 70. DENY the allegations contained in paragraph"70"together with each of its sub- paragraphs designated (a)through (c) of Count.I of Plaintiffs Complaint; as to allegations contained in sub-paragraph(d) of said paragraph, said allegations call for a conclusion of law and,therefore, no answer is necessary; to the extent an answer is necessary, Defendants DENY the allegations contained in sub-paragraph (d); as to the allegations contained in sub-paragraph (e) of said paragraph, DENY the same;as to the allegations contained in sub-paragraph (f) of . said paragraph, DENY the same; and, as to the allegations contained in sub-paragraph(g) of said paragraph, DENY the same. 71. DENY the allegations set forth in paragraph"71" of Count I of Plaintiff s Complaint. r 72. DENY the allegations set forth in paragraph"72" of Count I of Plaintiff s Complaint. 73. DENY the allegations set forth in paragraph"73" of Count I of Plaintiff s Complaint. 74. DENY the allegations set forth in paragraph"74" of Count I of Plaintiff's Complaint. 75. DENY the allegations set forth in paragraph"75",of Count I of Plaintiffs Complaint. 76. DENY the allegations set forth in paragraph"76" of Count I of Plaintiff s Complaint. 77. DENY the allegations set forth in paragraph"77" of Count I of Plaintiff s Complaint. 78. DENY the allegations set forth in paragraph"78". of Count I of Plaintiff s Complaint. As to COUNT II (Estoppel): 79. 1 Defendants repeat and reallege those answers to the general allegations and Count I (Appeal Under M.G.L. Chapter 40A. s. 17) set forth in paragraphs "1" through "78" of Plaintiff s Complaint, as realleged in paragraphs "79" of Count I1 (Estoppel) of Plaintiff s Complaint in the same manner as though fully set forth herein. [2008-0035\answertocomplaintrjwcg] 6 80. DENY the allegations contained in paragraph"80 of Count II of Plaintiff's Complaint. 81. .DENY the allegations.contained in paragraph"81"of Count II of Plaintiff's Complaint. 82. DENY the allegations contained in paragraph"82" of Count II of Plaintiffs Complaint. 83. DENY the allegations contained in paragraph"83" of Count II of Plaintiff's Complaint. 84. DENY the allegations contained in paragraph"84" of Count II of Plaintiff's Complaint. 85. DENY the allegations contained in paragraph"85"of Count II of Plaintiff's Complaint. As to COUNT III (DECLARATORY JUDGMENT): 86. Defendants repeat and reallege those answers to the general allegations, Count I (Appeal Under M.G.L. Chapter 40A. s. 17), and Count II (Estoppel) set forth in paragraphs "1" through "85" of Plaintiff's Complaint, as realleged in paragraph"86" of Count III (Declaratory Judgment) of Plaintiff's Complaint, in the same manner as though fully set forth herein. 87. DENY the allegations contained in paragraph"87" of Plaintiff's Complaint. 88. DENY the allegations contained in paragraph"88"of Plaintiff's Complaint. As to COUNT IV (MASSACHUSETTS TORT CLAIMS ACT, M.G. L. C. 258): 89. Defendants repeat and reallege those answers to the general allegations,in Count I (Appeal Under M.G.L. Chapter 40A. s. 17), in Count.II (Estoppel), in Count III (Declaratory Judgment), and as realleged in Count IV (Massachusetts Tort Claims Act, M.G.L. C. 258) in paragraph"89" of Plaintiff's Complaint, in the same manner as though fully set forth herein. . 90. DENY the allegations contained in paragraph"90" of Count IV of Plaintiff's Complaint and in furthering answering, state that the letter attached to Plaintiff's Complaint does not constitutes a proper presentment under G.L. c. 258. 91. ADMIT the allegations contained in paragraph"91" of Count IV of Plaintiff's Complaint and in further answering, state that Building Commissioner, Tom Perry, had several conversations with Albert Russo"in October, 2005.regarding the premises located at 181 School Street, Cotuit,.Massachusetts. 92. As to the allegations contained in paragraph"92" of Count IV of Plaintiff s• Complaint, said allegations call for a conclusion of law and,therefore, no answer is necessary; and to the extent an answer is necessary,Defendants DENY said allegations. [2008-0035\answertocomplaintrjwcgl 7 93. DENY the allegations contained in paragraph"93" of Count IV of Plaintiff s Complaint. 94. DENY the allegations.contained in paragraph`.`94" of Count IV of Plaintiff s Complaint. 95. DENY the allegations contained in paragraph"95" of Count IV of Plaintiff s Complaint. 96. DENY the allegations contained in paragraph"96" of Count IV of Plaintiff s Complaint. 97. DENY the allegations contained in paragraph"97" of Count IV of Plaintiff s Complaint: 98. DENY each and every other allegation set forth in the general allegations and Counts 1, 11, III and IV of said Plaintiff s Complaint not hereinbefore specifically admitted herein. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE: The Plaintiff is barred from recovery under their Complaint because said-'Plaintiff did not commence this action within the time specified under the applicable statutory limitations and, therefore,Plaintiff s Complaint should be dismissed. SECOND AFFIRMATIVE DEFENSE: The Plaintiffs claims fail to state a claim upon which relief can be granted and, therefore,. Plaintiff's Complaint should be dismissed. THIRD AFFIRMATIVE DEFENSE: This Court lacks jurisdiction over the subject matter of the Plaintiffs claims and, therefore; Plaintiffs claims should be dismissed. and,therefore, Plaintiff s Complaint should be , dismissed. FOURTH AFFIRMATIVE DEFENSE: Plaintiffs claims are barred by the Doctrine of Official Immunity,and, therefore, Plaintiff s Complaint should be dismissed. FIFTH AFFIRMATIVE DEFENSE: Plaintiff has failed to make a proper presentment pursuant to G.L. c. 258 and, therefore, the Plaintiffs claims should be dismissed. [2008-0035\answertocomplaintrjwcg] 8 and, therefore, Plaintiff's Complaint should be dismissed. SIXTH AFFIRMATIVE DEFENSE: At all times relevant hereto, the Defendant Town has acted without malice to Plaintiff and their actions as related to the Plaintiff are privileged by virtue of acting reasonably and in good faith within the scope of their authority. SEVENTH AFFIRMATIVE DEFENSE: Plaintiff's claim against Defendants are barred by the doctrine of official immunity. EIGHTH AFFIRMATIVE DEFENSE: Plaintiff should exercise due diligence in the purchase of the subject property. NINTH AFFIRMATIVE DEFENSE: The alleged negligent conduct by Town employees represents discriminatory sanctions. TENTH AFFIRMATIVE DEFENSE: The alleged actions of individual town employees cannot result in a rezoning without the approval of the Town's legislative body. ELEVENTH AFFIRMATIVE DEFENSE: The principles of estoppel do not apply to the actions of public officials. TWELVETH AFFIRMATIVE DEFENSE: The Plaintiff knew, prior to the purchase,that the property did not contain a legal apartment use. THIRTEENTH AFFIRMATIVE DEFENSE: Plaintiff has not been deprived of economic use of the premises since the proposed use of the property was not a permitted use under the Town's.zoning ordinances and was not a permitted use at the time of the Plaintiffs purchase of the property. FOURTEENTH AFFIRMATIVE DEFENSE: Plaintiff is eligible to participate in the Town's Accessory Affordable Housing Program .which opportunity was offered to-Plaintiff but was declined by Plaintiff. WHEREFORE, the Defendants respectfully pray for judgment against the Plaintiff as follows: [2008-0035\answertocomp1aintrjwcgl 9 (1) That a decree be entered dismissing Plaintiff's Complaint under all counts herein; (2) That a decree be entered affirming the Decision of the Barnstable Zoning Board of Appeals in all respects; (3) That judgment be entered in Defendants' favor on all issues as contained in all counts of Plaintiffs Complaint; (4) That Defendants be granted their costs, disbursements, and attorneys' fees in the defense of this action; and, (5) That Defendants be granted such other and further relief as to this Court it deems just and appropriate. . Dated: March 3, 2008. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, and its Members, and the TOWN OF BARNSTABLE, Defendants, By their Attorneys, TH J. WEIL To Att rney . B.O. No. 519 ] DAVID HOUGHTON, 1 st Assistant Town Attorney [B.B.O.No. 241160] CHARLES S. McLAUGHLIN, JR., Assistant Town Attorney TOWN OF BARNSTABLE 367 Main Street,New Town Hall Hyannis; Ma. 02601-3907 508-862-4620; 508-862-4724 TO: MICHAEL J. PRINCI,ESQ. [B.B.O. No. 406680] Attorney for Plaintiff WYNN& WYNN, P.C. 310 Barnstable Road Hyannis, MA 02601 508-775-3665; 508-775-1244 Fax [2008-0035\answertocomp1aintrjwcg] 10 LEGAL DEPARTMENT, TOWN OF BARNSTABLE INTENS-40FFICE imemerandenn DATE: February 14, 2008.. TO: TOM PERRY, Building Commissioner TO: ART TRACZYK, Principal Planner. TO: LINDA EDSON, Zoning Enforcement FROM: CLAIRE GRIFFEN, Legal Assista t `' { . g � RE: Susan LIMONCELLI v. Town of Barnstable ZBA, & its Members, Nightingale, et al; and the TOWN OF BARNSTABLE; Barnstable Superior Court, C.A. #2008-00105 (Action Appealing ZBA Decision; Claim of Negligence on part of TOB) Legal Ref: #2008-0035 We have received the Complaint in the referenced matter with its transmittal letters and accompanying Cover.Sheet and Notice of Action, together with its voluminous attachments,the latter of which we are not forwarding to you for obvious reasons because they are more than likely already a part of your files. Would you please review the same and forward to us, either electronically,marginally, or on a separate piece of paper, your replies to each of those numbered allegations in the Complaint, paragraph-by-paragraph in each Count, which apply to you. Thank you all for your efforts and we shall diary this for a 10-day reply period which will give us time to prepare our Answer and file it timely with the Court.i Please,'-, 1 CIO strive for submission to this office by Monday, February 25t'', 2008, with thanks RJW:cg is Atchmt: [2008-00351plsrespondtoalllegations] - • Wynn &Wynn, PC<,, • ATTO.RNEYS • 300 Barnstable Road February 11, 2008 Hyannis,MA 02601 (508)775-3665 Fax(508)775-1244 Via: Certified Mail Return Recut 1 (800)899-3003 http://www.wynnwynn.com 70042510000262290912 70042510000262290905 Ruth J. Weil, Esq. Art Traczyk Jeffrey L.Madison Town Counsel Zoning Board of Appeals Richard A.Martone Town of Barnstable Town of Barnstable Kevin P.McRoy** Seth D.Miller 367 Main Street 200 Main Street Robert F.Mills Charles D..Mulcahy }>H annis> MA 02601 Hyannis, MA 02601 . u John J.O'Day,Jr. Kevin J.O'Malley 70042510000262290868 70042510000262290899 .Raymond C.Pelote* Thomas E.Pontes Gail Nightingale Ron S. Jansson Michael J.Princi Ryan E.Prophett 32 Sunset Lane P.O. Box 147 Rebecca C.Richardson Janice E.Robbins Osterville, MA 02655 Barnstable, MA 02630 t William Rosa* Sarah P.Schlegel70042510000262290943 70062760000129851165 Swan on Dina M.Swan Andrew A.Toldo Daniel M. Creedon, III James R. Hatfield Robert Venturo John A.Walsh 49 Links Lane P.O. Box 826 Paul F.Wynn Thomas J.Wynn Marstons Mills, MA 02648 Hyannisport, MA 02547 . Of Counsel 70042510000262290929 70042510000262290882 Hon.Robert L.Steadman( Hon.James F.McGillen,II( et.Ret.)Sheila Geiler John Norman William E.O'Keefe P.O. Box 771 1625 Old'Post Road Hyannis, MA 02601 Marstons Mills, MA 02648 Admitted: - 70042510000262290875 70042510000262290936 - *�lassachuutt and Rhode Island Kelly Kevin Lydon Jeremy Gilmore - 6°Massachuse¢s and New Hampshire - Town of Barnstable 83.Dunaskin Road ZBA Member Centerville, MA 0.2632 200 Main Street Hyannis, MA 02601' Re: Susan Limoncelli v. Town of Barnstable Zoning Board of Appeals,and its Members, Gail Nightingale, Ron S..Jansson, Daniel M. Creedon 111, James R. Hatfield, Sheila Geiler, John Norman, Jeremy Gilmore, Kelly Kevin Lydon and the Town of Barnstable p Docket No. O�j VDU O - Dear Defendants; Pursuant to M.G.L.A. Chapter 40A, s. 17,the following items are enclosed: 1 A copy of the Complaint which has been filed in Superior Court, appealing Affiliate Offices: Raynham 90 New State Highway•Raynham,\lA 02 767 • (508)823-4567 Vineyard Haven 15 Church Street Rear'•Vineyard Haven,\lA 02568• (508)693.6832 the decision of the Zoning Board of Appeals which.was filed with the Town Clerk, Linda E. Hutchenrider for the Town of Barnstable and the Barnstable Superior Court on February 11, 2008. 2. Copy of the Civil.Action Cover Sheet 3. Copy of the Notice of Action If you should have any questions, please feel free to contact me. Very truly yours, WYNN&WYNN,P.C. V Michael J. Princi MJP:kml Enclosures E:\MJP\LIMONCE\APPEAL\DEFEND.WPD I ] FI \\ '� ► ► &\\ '\ ► ► P.C. * ATTORNEYS * 300 Barnstable Road Hyannis,MA 02601 (508)775-3665 Fax(508) 775.1244 February 11, 2008 1 (800)899-3003 http://www.,A,ynnwynn.com VIA:Hand Delivery Linda E. Hutchenrider i L.Madison Richard A.Marione Town Clerk F E B "1 1 2008 Richa Kevin P.McRoy** Town of Barnstable Seth D.Miller Robert E Mills 367 Main Street. Charles D.Mulcahy John J.O'Day,Jr. Hyannis, MA 02601 Kevin J.O'Malley Raymond C.Pelote* Thomas E.Pontes RE: Susan Limoncelli v. Town of Barnstable Zoning Board of Appeals, and its Michael J.Princi Ryan E.Prophet[ Members, Gail Nightingale, Ron S. Jansson, Daniel M. Creedon III, James R. Rebecca C.Richardson Janice E.Robbins . Hatfield, Sheila Geiler, John Norman, Jeremy Gilmore, Kelly Kevin Lydon and William Rosa* the Town of Barnstable Sarah P.Schlegel Dina M.Swanson Pocket NO. Andrew A.Toldo Robert Ventmo John A.Walsh Paul F Wynn . Dear Ms. Hutchenrider Thomas J.Wynn Of Counsel Pursuant to M.G.L.A. Chapter 40A,s. 17, the following items are enclosed: Hon.Robert L.Steadman(Ret.) Hon.James F.McGillen,11(Ret.) William E.O'Keefe 1. A copy of the Complaint which has been filed in Superior Court, appealing the decision of the Zoning Board of Appeals. Admitted; - 2. Civil Action Cover Sheet - "- *Mas-achuseus and Rhode Island **Massachusetts and Nen,Hampshire 3. Notice of Action I will forward to you by Certified Mail a copy of the Tracking Order as issued by the Superior Court with the Docket Number. " If you should have any questions, please feel free to contact me. Very truly yours, WYNN &WYNN, P.C. J% Michael J. Princi MJP:kml Enclosure , E:\MJP\LIMONCE\APPEAL\FORMS\TWNCLRK.WPD Affiliate Offices: Raynham 90 New State Highway •Raynham,MA 02767 1 (508)823.4567 Vineyard Haven 15 Church Street Rear 6 Vineyard Haven,MA 02568• (508)693-6832 . i . DOCKET No.(S) Trial Court of Massachusetts CIVIL ACTION Superior Court Department COVER SHEETJJ _ D �� County: Barnstable '—'�; PLAINTIFF(S) DEFENDANT(S) Town of Barnstable Zoning Board of Appeals,1;jd,its Members,Gall �._P'SNightingale,Ron S.Jansson, Daniel M.CreedU;;Janios_R.Hatfield, Sheila Geiler,John Norman,Jeremy Gilmore, y'Kevinydonand the;.w,a Town of Barnstable . Susan Limoncelli J, _ j ATTORNEY;FIRM NAME,ADDRESS AND TELEPHONE ATTORNEY (if known) ) r ` �r• Michael J. Princi, Esq. Wynn &Wynn,P.C. — 300 Barnstable Road Hyannis, MA 02601 508-775-3665 Board of Bar Overseers number: 406680 Origin code and track designation Place an x in one box only: 4. F04 District Court Appeal c.231. s.97& 104(After ❑X 1. F01 Original Complaint trial) (X) 2. F02 Removal to Sup. Ct. C.231, s. 104 5. F05Reactivated after rescript; relief from (Before trial) (F) judgment/Order (Mass. R.Civ. P.60) (X) 3. F03 Retransfer to Sup. Ct.C.231, s. 102C (X) 6. E10 Summary Process Appeal (X) 00 TYPE OF ACTION AND TRACK DESIGNATION (See reverse side) CODE NO. TYPE OF ACTION (specify)* TRACK IS THIS A JURY CASE? m 40A Appeal,Tort, & _5 CO2 Injunctive Relief ( f ) ( .X )Yes ( )No . The following is a full, itemized and detailed statement of the facts on which plaintiff relies to deteccnine 'Fr money damages. For this form,disregard double or treble damage claims;indicate single damage only. TORT CLAIMS 1 (Attach additional sheets as necessary) A. Documented medical expenses to date: i 1. Total hospital expenses......................................................................................................................... . $ I2. Total Doctor expenses........................................................................................................................ $ 3. Total chiropractic expenses........................................................................... ........................ $ . , 4. Total physical therapy expenses..............................................................:.......... .. .. ......... .............. $ _ 1 5. Total other expenses (describe)........ ................ ...:....................................................................... Subtotal $ 0.00. B. Documented lost wages and compensation to date.................................................................................... $ C. Documented property damages to date...................................................................................................... $ D. Reasonably anticipated future medical and hospital expenses...................:............................................. $ E. Reasonably anticipated lost wages.....`............:......................................................:.................................. $ F. Other documented items of damages (describe) � $ 100,000.00 G. Brief description of plaintiffs injury, including nature and extent of injury (describe) Due to the negligence of the Town of Barnstable and its employees, Plaintiff has been damaged. Her damages are equal to the difference in Purchase Price of a single family and a multi family dwelling plus lost rental income from 2005 to the Present and beyond.. TOTAL $ 100,000.00 r"-- CONTRACT.CLAIMS -- - (Attach additional sheets as necessary) (Provide a detailed description of claim(s): Appeal of a decision the Barnstable ZBA pursuant to M.G.L.c.40A. Claim for injunctive relief(declaratory judgment&estoppel) against Town of Barnstable. Claim against Town of Barnstable pursuant to Massachusetts Tort&Claims Act TOTAL $ PLEASE IDENTIFY, BY CASE NUMBER, NAME AND COUNTY,ANY RELATED ACTION PENDING IN THE SUPERIOR I I COURT DEPARTMENT " I hereby certify that I have complied with.the requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requiring that I provide my clients with information about court-connected dispute resolution services and discuss with them the advantages a disadvantages of the various methods."• DATE: Signature of Attorney of Record i I IS t•., ., ll ) BA Ey:nI 1 �`\ �\ \ 1 11 1 < E4] t1A F 1'L, • ATTO.RN EYS • qg `;ft_J f 300 Barnstable Road TO: Linda Hutchenrider.Town Clerk Town of Barnstable,.Hand Delivery . Hyannis,MA 02601 (508)775-3665 Fax(508) 775.1244 NOTICE OF ACTION 1 (800)899.3003 http://www.wynnwynn.com Plaintiff, Susan Limoncelli,hereby notifies the Town of Barnstable of the filing of the following complaint in Barnstable Superior Court: Jeffrey L.Madison Richard A.Marton Kevin P.McRoy** Seth D.Miller Robert F Mills SUSAN LIMONCELLI o Charles D.Mulcahy Plaintiff _ co John J.O'Day,Jr. -i Kevin J.O'Malley V. tT7 Raymond C.Pelote* Ca 73 Thomas E.Pontes Michael J.Princi Ryan E.Prophett TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, Rebecca C.Richardson Janice E.Robbins AND ITS MEMBERS, GAIL NIGHTINGALE,RON S. JANSSON, DANI1j,M. William Rosa* Sarah P.Schlegel CREEDON III, JAMES R. HATFIELD SHEILA GEILER JOHN NORMAN, Dina M.Swanson JEREMY GILMORE, KELLY KEVIN LYDON Andrew A.Toldo Robert Venturo and the Jahn A.Walsh Paul F.Wynn TOWN OF BARNSTABLE Thomas J.Wynn Defendants Of Counsel Hon.Robert L.Steadman(Ret.) Hun.James F.McGillen,11(Ret.) William E.O'Keefe This notice is made pursuant to M.G.L.Chapter 40A. Hand delivered with this Notice is a copy of the complaint which has been.received and Admitted: stamped by the Clerk'of-Courts on this date. - 'Massachusetts and Rhode Island - **Massachusetts and New Hnmpshire .. Respectfully Submitted, Plaintiff by her Attorney, Michael J. Princi, Esq. WYNN &WYNN, P.C. 300 Barnstable Road Hyannis,MA 02601 (508) 775-3665 BBO#406680 Date: February 11, 2008 Affiliate Offices: Raynham 90 New State Highway•Raynham,MA 02767 • (508)823-4567 Vineyard Haven 15 Church Street Rear•Vineyard Haven,MA 02568•.(508)693-6832 . i f' LIyL KIUK UU1 J`K f ! BARNS i AB�c SS COMMONWEALTH OF MASSACHUSETTS € m SUPERIOR COURT p l SAOg 11 P 1 A5 'BA STABLE, SS DOCKET NO.O� �J SUSAN LIMONCELLI Plaintiff V. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. JANSSON, DANIEL M. CREEDON III,JAMES R. HATFIELD-, SHEILA GEILER, JOHN NORMAN, JEREMY GILMORE, KELLY KEVIN LYDON and the ' TOWN OF BARNSTABLE Defendants COMPLAINT STATEMENT OF FACTS PARTIES PURSUANT TO M. G. L. CHAPTER 40A, SECTION 17 AND ALL COUNTS 1. The Plaintiff, Susan Limoncelli, is a resident of 181 School Street, Cotuit, Massachusetts and is an aggrieved party,pursuant to M.G.L.A. c. 40A §17. 2. The Plaintiff is record owner of property located at 181 School Street, Cotuit, Massachusetts,Assessor's Map'020, Parcel 090(hereinafter"the"Property"). 3. The Defendant,Town of Barnstable Zoning Board of Appeals(hereinafter "ZBA")is the variance and special permit granting authority for the Town of Barnstable with an address of 200 Main Street, Hyannis, Barnstable County, Massachusetts., 4. The Defendant,Gail Nightingale,is Chairman of the Barnstable Zoning Board of Appeals, with an address of 32 Sunset Lane, Osterville, Barnstable County, Massachusetts: 5. The Defendant,Ron S. Jansson, is Vice Chairman of the Barnstable Zoning Board of Appeals, with a mailing address of P.O. Box 147, Barnstable, Barnstable County, Massachusetts: Page 4- - COMPLNT4 I 6. The Defendant, Daniel M. Creedon III, is Clerk of the Barnstable Zoning Board of Appeals with an address of 49 Links Lane, Marstons Mills, Barnstable County, Massachusetts. 7.. The Defendant, James R.•Hatfield, is an Associate Member of the.Barnstable Zoning Board of Appeals,with a mailing address of P.O. Box 826, Hyannisport, Barnstable County, Massachusetts. 8. The Defendant, Sheila Geiler, is an Associate Member of the Barnstable Zoning Board of Appeals, with an address of P.O. Box 771, Hyannis,Barnstable County, Massachusetts: 9. The Defendant, John Norman, is an Associate Member of the Barnstable Zoning Board of Appeals,with an address of P.O. Box 1494, Marstons Mills,Barnstable County, Massachusetts. 10. The Defendant, Kelly Kevin Lydon, is an Associate Member of the Barnstable Zoning Board of Appeals,with an address of Town of Barnstable ZBA Member, . 200 Main Street,Hyannis,Barnstable County,Massachusetts. 11. The Defendant, Jeremy Gilmore; is an Associate Member of the Barnstable Zoning Board of Appeals,with an address of 83 Dunaskin Road, Centerville, Barnstable County, Massachusetts. 12. On or before 1981 and until August 2005, Ruth Grover(hereinafter"Grover") owned 181 School Street, Cotuit, MA. 13. In 1981, Grover decided to convert an existing garage into an apartment, which she intended to use for her daughter, Stacy. 14. Grover contracted with John McShane, a builder, (hereinafter"McShane") to do the construction conversion. 15. In the October/early November 1981 time frame, McShane spoke with Joseph DaLuz (hereinafter"DaLuz"),the then authorized Building Inspector for the Town, about the renovations to the Grover Garage. 16.. Prior to November 6, 1981 Plaintiff asserts and avers that John McShane and/or Ruth Grover applied for a building permit for work in the Garage. 17. While the Town by its own admission did not maintain records well from 1981 and no building permit can be found, a letter from DaLuz to Grover dated November 6, 1981, states_that with proper permits"., work could be done on the garage. (hereinafter the"DaLuz Letter") The DaLuz Letter is attached as Exhibit A. Page'-2 COMPLNT4 • 18. The DaLuz Letter also suggests that McShane and DaLuz spoke prior to the work and that according to DaLuz, McShane intended to convert the existing garage into an."occasional workshop". 19. The DaLuz Letter also suggests that a building permit was applied for and given to McShane, since a)DaLuz says permission was granted provided that McShane obtained the proper permits and b) the Town subsequently conducted inspections, which was consistent with the issuance of a permit. 20. In 2005,the Plaintiff made a request under the Massachusetts Public Records Act, M. G, L. Chapter 66 and the Town could not find any records regarding the 1981 renovation except for the DaLuz Letter. The Town has admitted that its record keeping dating back that far is incomplete. 21. On or before November 6, 1981,the garage was converted into a one bedroom apartment with a separate heating system,kitchen,bathroom, and utility box. 22. The Town of Barnstable Gas Inspector approved the furnace in the apartment on November 3, 1981, as evidence by a tag placed on the furnace, a copy of which is attached as Exhibit B. 23. On or about November 2, 1981, Buddy Martin, the then Assistant Building Inspector and John Newton,the then Wire Inspector inspected the property,which activity was consistent with issuance of a building.permit. 24. The Town also approved the installation of a separate electric meter on the apartment in or around 1981. A copy of the Towns Approved tag attached as Exhibit C. 25. Mr.Newton noted that a water heater had been installed as part of a dwelling unit. In addition,the apartment had a stove,kitchen sink,refrigerator, and bed, confirming that Grover constructed an apartment.'(See Exhibit A) q 26. Per the DaLuz letter, DaLuz requested that.Grover come to see him within seven' (7) days as the work appeared to be in violation of his permission and the permit, which likely issued. He further noted,."at that time a determination for compliance may be issued (Exhibit A) 27. After receipt of Mr. DaLuz's letter, a friend of Grover, John Harvey timely communicated with DaLuz on Grover behalf.' This information was made available to the ZBA through the affidavit of Marjorie Harvey,which is attached as Exhibit D. 28. On or after November 6, 1981, DaLuz and John Harvey discussed compliance of the renovation project with the.permit. Page -3 COMPLNT4 f 29. After the communication with John Harvey, DaLuz approved changes to the original permit, allowing the garage to be converted into an apartment and to be used for residential purposes. 30. From and since November 1981 and until the sale of the house to the Plaintiff on August 9, 2005,the converted garage has been continuously used as a residential apartment. 31. From and since November 1981'the Building Department has been fully aware of Grover's use of the apartment for residential purposes. Copies of the,DaLuz letter were also sent to the then ZBA and the then Town Counsel. 32. On June 12, 1989, Grover requested and was issued a building permit for an expansion of the existing main house including the construction of an addition and a septic system upgrade to a Title V system under the Board of Health regulations. The apartment was connected to both the old and the upgraded septic system. A copy of the permit is attached as Exhibit E. 33---- The Town issued the building permit to Grover with the knowledge that the apartment,,,asicoristrucied�and o p ed. If any structure,building or use was in 2 violation of the zoning bylaw at that time, the permit would not have issued according.to pke,Sate-Buildmg'Code in effect at that Ftiine�andthe Town's policy. 34. With knowledge of the apartment,the Town issued the building permit for - expansion to the house in 1989. By granting the.building permit in 1989,the Building Department reconfirmed the Town's approval of the apartment. 35. In that same year(1989), the Town reassessed the Property, assessing the . apartment as a separate unit and the property as a multifamily property. 36. The property continues to be assessed as a multifamily property through the filing of this complaint. Copy of the relevant Town's assessing records attached as Exhibit F. 37. In August 2005 the Board of Health inspected the property for Title V compliance and the inspection report indicates 4 bedrooms. The main house has three bedrooms, the fourth bedroom indicated on the report is therefore the apartment. ` A drawing on the,report indicates the location of the apartment and clearly shows the septic system serving both buildings, a copy of which is attached as Exhibit G. 38. On August 9, 2005, Grover conveyed 181 School Street to Susan Limoncelli. A. copy of the Deed is attached as Exhibit H. 39.. Ms. Limoncelli relied on information from the Town of Barnstable Assessor's Office and Board of Health, which records indicated that the 181 School Street Page-4- COMPLNT4 property contained two residential units and was a multi-family property. See Exhibits F and G. 40. Ms.'Limoncelli also relied on Grover's real estate listings, advertising the property as including the second unit. 41. When determining her ability to afford the purchase of the Property,Ms. Limoncelli included rental income from the apartment in her calculations. The. rental income information was provided by Grover. 42. On August 29, 2005, Linda Edson, a zoning enforcement officer for the Town sent a letter to Susan. Limoncelli informing her that the apartment was unlawful. A copy of the letter is attached as yExhibit I. 43. Approximately two days later, Susan Limoncelli and Albert Russo, her fiance, spoke with Linda Edson over the phone regarding the letter. 44. Ms. Edson, acting on behalf of the Town, told the Plaintiff that the Building Department has known about the apartment for approximately 24 years, that she (Ms Edson)personally knew about the apartment as she was a friend of Grover, and that she(Nis. Edson)had been to Grover's property on many occasions prior to becoming and Enforcement Officer. tion.was provided to the ZBA b affidavit a co of which is ✓�' 45. This mforma p Y � PY attached as Exhibit J. The statements of Ms Edson have never been rebutted. 46. When Thomas Perry, (hereinafter"Perry")the present Building Inspector/Commissioner was made aware of the conversation between the Plaintiff and Ms. Edson,he instructed Ms. Edson to notify individuals,who she knew or suspected of violations as soon as she(Edson)became aware of them and not to ignore violations because of.personal relationships. . 47. On or about April 1, 2007, Ms..Limoncelli applied to.the Town for a building permit to make repairs to the main house. 48. On April 27, 2007, the Town sent a letter to Ms. Limoncelli advising her that based upon 780 CMR 111.2, the Building Department could not issue a building permit because the property was in violation. A copy of the letter is attached as Exhibit K. 49. In'2005 and again in April 2007 Plaintiff requested a building permit to make . repairs to the apartment. 50. On or about August.6, 2007 the Town of Barnstable Building Inspector/Commissioner denied the request for building permit for the apartment Page -5- COMPLNT4 f and denied grandfather protection(under M. G. L. ch. 40A, §7). A copy of the letter is attached as Exhibit L. 51. Following Perry's denial of the apartment building permit,the Plaintiff appealed the Building Inspector's decision to the ZBA in conformance with the Town's Zoning By-law and M.G.L. ch. 40A. See copy-of the Appeal attached as Exhibit M. (Some of the attachments to the Appeal are duplicated as separate exhibits in this complaint.) 52. On or about January 9, 2008, the matter was heard before the ZBA and its individual members listed as Defendants. 53. At the time of the ZBA hearing the Plaintiff submitted additional supporting material. A copy of the additional material is attached as Exhibit N. 54. The additional material was presented and outlined in the Plaintiff s oral presentation to the ZBA. 55. The ZBA voted to uphold the Building Commissioner's denial of a building permit for improvements to the apartment. 56. A copy of the Decision, which was date stamped and filed in the Town Clerk's Office in the Town of Barnstable on January 23, 2008 is attached hereto and marked as Exhibit O. 57. At the ZBA hearing, Plaintiff's attorney questioned Perry about other multi- family dwellings in the same area as the Property. Plaintiff s counsel made specific reference to 468 Main. Street,which property was reported as illegatin September 2007. Perry responded that he had done work"on that particular property and that he found no violation because that garage had been converted into an apartment before zoning regulations prohibited such a conversion. The ZBA accepted this answer as fact. 58. Town of Barnstable Assessor's Records indicate,however, that the property at 468 Main Street was inspected in 1972 and at that time, the property contained one house and two garages. Assessing records also show the 468 Main Street property listed as Single Family until 2004 (well after zoning regulations were enacted). In 2004 the property is recognized as "Multiple Family". Copy of assessing records on 468 Main Street attached as Exhibit P. COUNT I -APPEAL UNDER M G L.A. Chapter 40A, s. 17 59. The Plaintiff alleges and avers Paragraphs 1 through 58 and further alleges as follows: Page -6- COMPLNT4 i 60. The ZBA failed to consider and take into account pertinent information which included the sworn affidavits of Mrs. Harvey confirming the DaLuz/Harvey meeting and results thereof, documents such as inspection stickers, and a summary of information obtained from Buddy Martin, John McShane, and Joseph DaLuz further corroborating these events. This unrebutted historical information supports the Plaintiff's assertion that the apartment was constructed with the approval of the Building Inspector and a building permit, as amended by DaLuz. 61. The ZBA failed to recognize that the Town ratified its original a_p_r:oual of the apartment when it issued a building permit for the e p ion of maims n house and*, assessed the Property as multifamily in-19-,89,r _er aifedrto�reco ize that the 1981piri most likely lost due to record keeping problems, acknowledged by the town. 62. The ZBA ignored the most logical conclusion based on all of the evidence Plaintiff presented, i.e. that the Town.permitted the construction and approved the apartment. 63. The ZBA also failed to recognize that the Town should be estopped from denying Ms. Limoncelli her permit based on the approvals of DaLuz, the acceptance of the work by Town employees/inspectors,who had knowledge of the apartment for over 24 years and the intentional,negligent, and/or malicious inactions/actions of Linda Edson ignoring an alleged violation to favor a friend. 64. The ZBA exceeded its authority in ignoring Plaintiff's presentation and refusing to find that the Property was a valid multifamily property and that the Plaintiff Was entitled to a building permit to improve the apartment. 65. The ZBA based its decision on Perry's o i� nion that no permit issued in 1981 despite Perry's admission that record keeping going back to 1981 was incomplete. 66. The Z! A also relied on P 's determination tha Rhintiffs 2007 requ®for a , �'Y buildi g pe i� for work on^main house way(denied�because the epee was. not in oaf mil due to e ap -men yet 1989 the Town issued a building ' u permit for work�On the .ain house mdic,a�ng that the property as in fact in F compliance, othe�v se the pen-nit Xui;not have issued. p � P 67. The ZBA completely ignored the last sentence of the DaLuz letter which states: "Therefore, I shall expect to see you in my office within seven.(7) days of receipt (� of this letter with a method of correcting the violation. At that time a determination for compliance may be issued." This request to meet for a determination of compliance clearly demonstrated that Daluz was determining whether or not the work being done on the apartment complied with the permit. Page -7- COMPLNT4 . 68. Daluz clearly made a decision to accept the work being done,thus allowing a modification of the original permit and approval of the apartment..If Daluz had determined otherwise,the Town would have issued a cease and desist order in 1981. 69. The ZBA also failed to consider.the fact that the Town would not have issued the 1989 permit for work on the house,had the property been in violation of zoning laws due to the apartment. The ZBA decision on this point is an inaccurate and selective interpretation of the building regulation and Town policy,-which prohibits issuing a building permit to a property with an illegal use and not in compliance with zoning. The fact that the Town issued a building permit in 1989 demonstrated that the Property was not in violation at that time and a legal multifamily property. 70. The ZBA decision was arbitrary, capricious,and unreasonable and completely ignored the following unrebutted facts: a)Mrs. Harvey's affidavit confirmed that her husband met with Daluz and gained the Town's approval of the apartment. b) Conversations with Buddy.Martin,the assistant building inspector in 1981, corroborate that Daluz met with John Harvey and approved the apartment. c)The several inspection certificates: gas, electric,board of health, etc, supporting the is of a building permit,which was later amended and approved by DaLuz. d)The issuance of the 1989 permit, which according to 780 CMR 111.2 and Town Policy,could only issue if the property was in total compliance with zoning. e)The assessor's records showing the assessment.as multifamily from 1989 to the present. f)The statement by Perry that in another case where no building permit existed for a multifamily property,his personal.opinion that the conversion had taken place prior to zoning restrictions was sufficient to . find no violation. Town records show this is not the case. Derry's actions ' show either selective enforcement or favoritism to people known to Perry. g) The issuance of multiple BOH permits for upgrades to the septic system as late as.August, 2005, clearly depicting the septic system linked to the house and the p cottage apartment. Page -8- COMPLNT4 71. The Plaintiff is aggrieved since her legal rights have been infringed and her property interests have been adversely affected. 72. Ms. Limoncelli has been damaged by the decision denying her use of the Property as a multifamily property and has lost income from the apartment from and since August 2005. , 73. Ms. Limoncelli's damages are equal to the amount of rental income, which she : would have received from leasing the apartment from 2006 to the present and beyond: 74. The Plaintiff is aggrieved by the decision of the ZBA. Perry and the Town had the ability to make reasonable determinations with respect to the apartment and rather applied arbitrary and capricious standards to the Limoncelli case, while applying other standards to similar cases. 75. Under the circumstances of the Plaintiff s case, she should have received the 'benefit of her presentation, i.e. a building permit issued in 1981 and was allowed to be modified to reflect and allow an apartment, all of which was approved by DaLuz; this conclusion is more plausible than Perry's assumptions 76. The ZBA vote to uphold Perry's denial of the building permit exceeded its u authority by failing to apply fair and equal standards to the Plaintiff s Appeal and by failing to give equal weight to the argument that a building permit had issued and that the Town had approved the apartment"in 1981. 77. Further,the ZBA failed to consider the evidence in a light most favorable to the Plaintiff. 78. The Plaintiff is aggrieved,*since her legal rights have been or likely will be infringed and her property interest has been adversely affected. WHEREFORE,the Plaintiff demands that the Barnstable Zoning Board of Appeals Decision dated January 23, 2008 (Exhibit O)be annulled and that the Court determine that the Plaintiff s property is entitled to the protection under M.G.L.A. c. 40A §6 and or for such other relief as the Court deems appropriate. COUNT II-ESTOPP EL � I 79. The Plaintiff alleges and avers Paragraphs 1 through 78 and further alleges as follows: 80. Plaintiff relied on Town records which,taken as a whole, indicated the existence of a legal apartment on the Property. Page-9- COMPLNT4 81. The actions of Joe Daluz, Linda Edson,Tom Perry, and other present and past officials of the Town of Barnstable in failing to maintain proper records, failing to enforce zoning regulations in an equitable manner, and taxing, approving, and listing the Property as_a multifamily dwelling,rise above mere inadvertence. 82. This combination of circumstances, in which the Town issued a permit but failed to retain a copy,knew of the existence of the apartment for over 24 years, and benefitted from its existence through the collection of taxes, requires mandatory injunctive relief for the Plaintiff and an order estopping the Town from denying the Plaintiff a multifamily use of the Property. 83. In extenuating circumstances such as this, the doctrine of estoppel is available against the Town, in accordance with general equitable principals. 84. Because of the unclean hands of Town officials,the Town must now be estopped from denying the existence of the multifamily use of the Property, from denying a building permit for the renovation of the apartment, and from selectively enforcing zoning regulations against the Plaintiff. 85. Plaintiff has offered sufficient evidence of the existence of a building permit for the apartment, and therefore the Town should be estopped from denying Plaintiff use of the apartment. WHEREFORE,the Plaintiff demands that: 1. The Barnstable Zoning Board of Appeals be estopped from denying the existence of the multifamily use of the property and from denying a building permit for the apartment, and from selectively enforcing zoning restrictions against Plaintiff. 2. That the Court enter orders to this effect. 3. And for such other relief as the Court deems appropriate. COUNT III-DECLARATORY JUDGMENT 86. The Plaintiff alleges and avers Paragraphs I-through 85 and further alleges as follows: 87. Plaintiff has presented ample evidence of the existence of a building permit and of the legality of the apartment, including,but not limited to, affidavits of persons with knowledge of the permit, correspondence indicating a permit,a lack of a cease and desist order for the property, subsequent building permits which would not have been issued had the property not been in compliance, and Town records listing and taxing the Property as multi—family dwelling. Page -10= COMPLNT4 88. Based on this evidence;this Court should declare that a permit was issued for the conversion of the garage into an apartment and said permit precludes,the Town from now limiting Plaintiff's use of the apartment. WHEREFORE, the Plaintiff asks this Court to declare that a building permit was issued for the conversion of the garage into an apartment making the Property a legal multi- family dwelling and prays for other relief as this Court deems appropriate. COUNT IV -MASSACHUSETTS TORT CLAIMS ACT, M.G. L.C. 258 89. The Plaintiff alleges and avers Paragraphs 1 through 88 and alleges as follows: 90. On September 30, 2005 Plaintiff's then attorney, David Burgess, served the Town of Barnstable with notice of Plaintiff's claims against the Town, her notification of damages, and her request for relief. A copy of the notification letter is attached as Exhibit Q. 91. The Town did not respond to this notice. 92. Pursuant to the Massachusetts Tort Claims Act, the Town is liable for the negligence of its employees acting in the scope of their employment. 93. Linda Edson, in her capacity as enforcement officer,was negligent in the effectuation of her duties. Ms. Edson declared.that she knew the apartment was in violation of zoning laws well prior to August 2005, and thus Ms. Edson had a duty to report this violation to the Town and notify the then owner, Mrs. Grover. 94. By her own admission, Ms. Edson ignored the alleged violation because of a personal relationship with Mrs. Grover. 95. Because of this negligence by Ms. Edson, the alleged illegality of the apartment only came to light after the Plaintiff purchased the property believing it to contain two legal residential units,paying the value of a multifamily property,and relying . on the future rental.income. 96. Ms. Edson's negligence, and the negligent supervision of Ms. Edson,by her superiors has damaged the Plaintiff. 97. Plaintiff's damages are equivalent to the difference in value of a multifamily and single-family dwelling, as well as rental income from and since.the date of purchase into the future, and costs and fees associated with Plaintiff's.defense of her right to use the apartment. WHEREFORE, the Plaintiff asks this Court to award her damages in the amount of $100,000.00,.the maximum allowable pursuant to the Massachusetts Tort Claims Act. Page-11-. COMPLNT4 L _ THE PLAINTIFF DEMANDS A JURY TRIAL AS TO COUNT IV. Respectfull ;,Subri i t Michael J. Princi, E q, WYNN&WYNN,P.C. 300 Barnstable Road Hyannis, MA 02601 (508) 775-3665 BBO#406680 Date: February 11, 2008 t I Page -12- COMPLNT4 Limoncelli vs. Town Of Barnstable Answers of Linda Edson February 15, 2008 Count # 42- Admit Count # 44- Deny Count # 46- Deny Count # 81-Deny Count # 93- Deny Count # 94-Deny Count # 95-Deny Count # 96 Deny This is how it went. When I first started this job, I went after adds in the paper, calls from neighbors, calls from ex roommates, husbands and/or wives, or reports from the Board of Health. ` Once a situation was discovered that an illegal use was happening, I went forward and started the process of trying to get these properties into the Amnesty Program. That was, and still is, my priority. If that fails I go to the next step which is enforcement. At the time of this alleged complaint, I, being a member of the Cape Cod Multiple Listing Service, checked the "sold properties" on a monthly basis to see what was being sold and if any of these properties had any multi family uses that were not legal. That is how I found out that this property had been sold and had an additional rental cottage as part of the sale. I have lived in the area 27 years. I knew there was a cottage there. I had been there only once to see a friend. I was not in this job and I had no idea that there were illegal multi family properties there or anywhere else in the town until I started this job. Once I saw the sale, I checked the file, as I would do with any property that raised question, and saw that there was some unresolved question as to the legality of same. I sent the owners a letter as soon as I found out this property had an illegal use. There was no way I had knowledge of this until I saw the sale. There are hundreds of files in the building department and I only check the ones that raise a question. I never turned a blind eye to the Grovers or anyone else that I knew has or had an illegal apartment. I never knew it was illegal until I saw the sale. Linda Edson FYI- During my conversation with Limoncelli and her boyfriend Bert, I told them that they had to resolve the illegal apartment issue for them to be able to get a building permit to do work on the house. They than started work without a permit and this department had to stop them. LEGAL DEPARTMENT, TOWN OF BARNSTABLE INT811=IIFFICE Memorandum DATE: February 14,.2008. TO: TOM PERRY, Building Commissioner TO: ART TRACZYK, Principal Planner, j/'TO: LINDA EDSON, Zoning Enforcement / FROM: CLAIRE GRIFFEN, Legal Assistant. RE: Susan LIMONCELLI-v. Town of Barnstable ZBA, & its Members, Nightingale, et al; and the TOWN OF BARNSTABLE; Barnstable Superior Court, C.A. 42008-00105 (Action Appealing ZBA Decision; Claim.of Negligence on part of TOB) Legal Ref: #2008-0035 ---------------------------------------------------------------------------------------------=--------------- We have received the Complaint in the referenced matter with its transmittal letters and accompanying Cover Sheet and Notice of Action, together with its voluminous attachments,the latter of which we are not forwarding to you for obvious reasons because they are more than likely already a part of your files. Would,you please review the same and forward to us, either electronically, marginally, or on a separate piece of paper, your replies to each of those numbered.allegations in the Complaint, paragraph-by-paragraph in each Count, which apply to you. Thank you all for your efforts and we shall diary this for a 10-day reply period which will give us time to prepare our Answer and file it timely with the Court. Please strive for submission to this office by Monday,-February 25t", 2008, with thanks. RJW:cg °Atchmt. [2008-00351plsrespondtoal[leg ations] t W nn &W, n'h 1P.,C Y Y • ATTORNEYS • 300 Barnstable Road February 11, 2008 Hyannis,MA 02601 (508)775-3665 Fax(508) 775-1244 Via: Certified Mail Return Receipt 1 (800)899-3003 http://www.wynnwynn.com 70042510000262290912 70042510000262290905 Ruth J. Weil, Esq. Art Traczyk Jeffrey L.Madison Town Counsel Zoning Board of Appeals Richard A.Marrone Town of Barnstable Town of Barnstable. Kevin P.McRoy** Seth D.Miller 367 Main Street 200 Main Street Robert e F.Millss D.Mulcahy }>Char Hyannis, MA 02601 Hyannis, MA 02601 John es D. Kevin J.O'Malley . 70042510000262290868 7004251.0000262290899 Raymond C.Pelote* Thomas E.Pontes Gail Nightingale Ron S. Jansson Michael J.Princi Ryan E.Prophert 32 Sunset Lane P.O. Box 147 Rebecca C.Richardson Janice E.Robbins Osterville, MA 02655 Barnstable, MA 02630 William Rosa* Sarah a Schlegel 70042510000262290943 70062760000129851165 Dina M.Swanwanson. • Andrew A.Toldo Daniel M. Creedon, III James R. Hatfield Robert Venturo John A.Walsh 49 Links Lane P.O. Box 826 Paul F.Wynn Thomas J.Wynn Marstons Mills,MA 02648 Hyannisport, MA 02547 r Of cmmsei 70042510000262290929 70042510000262290882 Hon.Robert L.Steadman(Ret.)- Sheila Geiler John Norman Hon.James F.McGillen,II(Ret.) William E.O'Keefe P.O. Box 771 1625 Old Post Road Hyannis, MA 02601 Marstons Mills, MA 02648 Admitted: 70042510000262290875 70042510000262290936 *Massachuseas and Rhrnle Island Kelly Kevin Lydon - Jeremy Gilmore "Massachusetts and New Hampshire _ Town of Barnstable 83 Dunaskin Road ZBA Member Centerville, MA 02632. 200 Main Street Hyannis, MA 02601 Re: Susan Limoncelli v. Town of Barnstable Zoning Board.of Appeals,,and its Members, Gail Nightingale, Ron S. Jansson, Daniel M..Creedon I1I, James R. Hatfield, Sheila Geiler, John Norman,Jeremy Gilmore, Kelly Kevin.Lydon and the Town of Barnstable` Docket No. 6 CG c�'QCj%dv� Dear Defendants; Pursuant to M.G.L.A. Chapter 40A, S. 17, the following items are enclosed: 1. A copy of the Complaint which has been filed in Superior Court, appealing Affiliate Offices: Raynham 90 New State Highway • Raynham,MA 02 767• (503)823.4567 Vineyard'Haven 15 Church Street Rear• Vineyard Haven,MA 02563 • (503)693.6332 r the decision of the Zoning Board of Appeals which was filed with the Town Clerk, Linda E.'Hutchenrider for the Town of Barnstable and the Barnstable Superior Court on February 11, 2008. 2. Copy of the Civil Action Cover Sheet 3. Copy of the Notice of Action If you should have any questions, please feel free to contact me. Very truly yours, WYNN&WYNN, P.C. Michael J. Princi MJP:kml Enclosures E:\MJP\LIMONCE\APPEAL\DtFEND.WPD Wy:ynnn. &Wy n n, P C • ATTORNEYS • 300 Barnstable Road Hyannis,MA 02601 (508)775-3665 February 11, 2008 Fax(508) 775-1244 � 1 (800)899-3003 http://www.wynnwynn.com VIA:Hand Delivery ...._ _�.....::f ,i Linda E. Hutchenrider Jeffrey L.Madiso° Town Clerk F E d 1 1 2008 Richard A.Marione Kevin P.McRoy** Town of Barnstable Seth D.Miller Robert E Mills 367 Main Street - CharlesHyannis, D.Mulcahy JohnJJohn J.O'Day,Jr. y , MA 02601. ....,,.. .•.. ..,,.,... . . ,...v.. ...:; Kevin J.O'Malley Raymond C.Pelote* Thomas E.Pontes RE: Susan Limoncelli v. Town of Barnstable Zoning Board of Appeals, and its Michael J.Princi Ryan E.Prophett Members, Gail Nightingale, Ron S. Jansson, Daniel M. Creedon III; James R. Rebecca C.Richardson Janice E.Robbins Hatfield, Sheila Geiler,-John Norman, Jeremy Gilmore, Kelly Kevin Lydon and William Rc)saSchlegel the Town of Barnstable Sarah P.Schlegel Dina M.Swanson Docket No. Andrew A:Toldo , Robert Venturo John A.Walsh Paul F Wynn . Dear Ms. Hutchenrider : Thomas J.Wynn o Counsel Pursuant to M.G:L.A. Chapter.40A, s. 17, the following items are enclosed: Hon.Robert L.Steadman(Ret.) Hun.James F.McGillen,II(Ret.) William E.O'Keefe 1. A copy.of the Complaint which has been filed in Superior Court, appealing the decision of the Zoning Board of Appeals. . Admitted: 2.- • Civil Action Cover Sheet - *1,1., chuseus and Rhode Island *mMassachu.e",and Nov Hampshire .. 3. Notice of Action I will forward to .you by Certified Mail a copy of the Tracking Order as issued by the Superior Court with.the Docket Number. If you should have any questions, please feel free to contact me. Very truly yours, WYNN &WYNN, P.C. Michael J. Princi MJP:kml Enclosure E:\MJP\LM40NCE\APPEAL\FORMS\TWNCLRK.WPD Affiliate Offices: Raynham 90 New State Highway•Raynham,MA 02767 • (508)823-4567, Vineyard Haven 15 Church Street Rear•Vineyard Haven,MA 02568• (508)693.6832 `• i t.i Wynn &Wynn, PC * ATTORNEYS * tit , ,�,,, ,-:4 r 300 Barnstable Road TO Linda Hutchenrider.Town Clerk,Town of Barnstable.Hand Delivery Hyannis,MA 02601 (508)775-3665 Fax(508)775.1244 NOTICE OF ACTION 1 (800)899.3003 http-//www.wyzinwynn-com Plaintiff, Susan Limoncelli, hereby notifies the Town of Barnstable of the filing of the following complaint in Barnstable Superior Court: Jeffrey L.Madison Richard A.Marton Kevin P.McRoy" Seth D.Miller Robert F Mills SUSAN LIMONCELLI co Charles D..Mulcahy Plaintiff John J.O'Day,Jr. t Kevin).O'Malley V. fTrl Raymond C.Pelote* rn :-r Thomas E.Pontes Michael J.Princi ..r Rya„E.Prophett TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, Re.be E.Robbins cca C.Richardson AND ITS MEMBERS; GAIL NIGHTINGALE RON S. JANSSON, DANII ,M. Janice William Rosa* Sarah P.Schlegel CREEDON III, JAMES R. HATFIELD, SHEILA GEILER .JOHN NORMIN, Dina M.Swanson JEREMY GILMORE, KELLY KEVIN LYDON u�'i Andrew A.Toldo Robert Venturo.- and the, - John A.Walsh Paul E Wynn TOWN OF BARNSTABLE . Thomas).Wynn Defendants . { Of Counsel Hon.Robert L.Steadman(Ret.) Hon.James F.McGillen,11(Ret.) William E.O'Keefe This notice is made pursuant to M.G:L.Chapter 40A. Hand delivered with this Notice is a copy of the complaint which has been received and Admitted: stamped by the Clerk of Courts on this date. 'Massachusetts and Rh,ule Island r*Massachusetts and New Hampshire - Respectfully Submitted, Plaintiff by.her Attorney, Michael J. Princi, Esq. WYNN &WYNN, P.C. 300 Barnstable Road Hyannis, MA 02601 (508) 77573665 BBO#406680 Date: February 11, 2008 Affiliate Offices: Raynham 90 New State Highway• Raynham,MA 02767 • (508)823-4567 Vineyard Haven 15 Church Street Rear•Vineyard Haven,MA 02568• (508)693-6832 I DocKET No. (S) Trial Court of Massachusetts CIVIL ACTION Superior Court Department COVER SHEET . v f D �j County: Barnstable I PLAINTIFF(S) DEFENDANT(S) f31T 4'rr, "c L1�LJf, Town of Barnstable Zoning Board of Appeals illl� its Members,'Gai7sC.�g Nightingale, Ron S.Jansson,Daniel M. Cree ,JaMs_R.Hatfield, i Sheila Geiler,John Norman,Jeremy Gilmore, evin[,ydon'and t' �.. . Town of Barnstable ; j Susan Limoncelli t ATTORNEY, FIRM NAME,.ADDRESS AND TELEPHONE ATTORNEY (if known) ),_r' `• y, s s Michael J. Princi, Esq. Wynn & Wynn, P.C. -. 300 Barnstable Road-Hyannis, MA 02601 508-775-3665 Board of Bar Overseers number: 406680 Origin code.and track designation Place an x in one box only: 4. F04 District Court Appeal c.231. s.97&104(After �X 1. F01 Original Complaint trial) .(X) 102. F02 Removal to Sup. Ct. C.231, s. 104 a 5. F05 Reactivated after rescript; relief from (Before trial) (F) judgment/Order (Mass. R.Civ. P.60) (X) 3. F03 Retransfer to Sup. Ct. C.231, s. 102C (X) 6. E10 Summary.Process Appeal (X) 00 TYPE OF ACTION AND TRACK DESIGNATION (See reverse side) -71 77- CODE NO. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE? 7D 40A Appeal,.Tort, & > —; CO2 Injunctive Relief (. F ) ( X )Yes. (. )No The following is a full, itemized and detailed statement of the facts on which plaintiff relies to determine �:i ! money damages. For this form,disregard double or treble damage claims; indicate single damagwonly. . TORT CLAIMS (Attach additional sheets as necessary) A. Documented medical expenses to date: 1. Total hospital expenses........I...........................:. I2. Total Doctor expenses....................................................................................................!.................... $ _ ' 3. Total chiropractic expenses ..... $ I 4. Total physical therapy expenses...: ......... ....... ..... .....I..........: .... ._.. $ 5. Total other expenses (describe)................. ............•••:• ••••.• $ Subtotal $ 0.00. B. Documented lost wages and compensation to date......:...........:............................................................... $ C. Documented property damages to date......:........................................................ $ D. Reasonably anticipated future medical and hospital expenses : $ E. Reasonably anticipated lost wages.......... $ F. Other documented items of damages (describe) $ 100,000.00 G. Brief description of plaintiffs injury;:including nature and,extent of injury (describe) Due,to the negligence of the Town of Barnstable and its employees, Plaintiff has been damaged:,Her damages are equal to the difference in Purchase Price of a single family and a multi family dwelling plus lost rental income from 2005 to the Present and beyond. TOTAL $ 100,000.00 --- -- CONTRACT CLAIMS -- - (Attach additional sheets as necessary) Provide a detailed description of claim(s): 1 ppeal of a decision the Barnstable ZBA pursuant to M.G.L. c.40A. Claim for injunctive relief(declaratory judgment&estoppel) gainst Town of Barnstable. Claim against Town of Barnstable pursuant to Massachusetts Tort&Claims Act - TOTAL $ PLEASE IDENTIFY, BY CASE NUMBER, NAME AND COUNTY,ANY RELATED ACTION PENDING IN.THE SUPERIOR i COURT DEPARTMENT "I hereby certify that I have complied with the requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requiring that I provide my clients with information.about court-connected dispute i resolution services and discuss with them the advantages a disadvantages of the various methods:" DATE: Signature of Attorney of Record , 1 �U -'�'KIUK C:UL1K i I BARNSTABLE SS HUL, F IE ' COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT .n� FE P , 'BARNS TABLE, SS DOCKET NO. f J SUSAN LIMONCELLI Plaintiff V. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. JANSSON, DANIEL M. CREEDON-III, JAMES R. HATFIELD, SHEILA GEILER, JOHN NORMAN,JEREMY GILMORE, KELLY KEVIN LYDON and the TOWN OF BARNSTABLE Defendants, COMPLAINT STATEMENT OF FACTS PARTIES.PURSUANT TOM G. L. CHAPTER 40A, SECTION 17 AND ALL COUNTS 1. The Plaintiff, Susan Limoncelli, is a resident of 181 School Street, Cotuit, Massachusetts and is an aggrieved party pursuant to M.G.L.A. c. 40A §17'. 2. The Plaintiff is record owner of property located at 181 School Street, Cotuit, Massachusetts, Assessor's Map 020, Parcel 090 (hereinafter"the"Property"). 3. The Defendant, Town of Barnstable Zoning Board of Appeals (hereinafter "ZBA") is the variance and.special permit granting authority for the Town of Barnstable with an address of 200 Main Street, Hyannis, Barnstable County, Massachusetts. 4. The Defendant,'Gail Nightingale, is Chairman of the Barnstable Zoning Board of Appeals, with an address of 32 Sunset Lane, Osterville, Barnstable County, Massachusetts. 5. The Defendant, Ron S.Jansson, is Vice Chairman of the Barnstable Zoning Board of Appeals, with a mailing address of P.O. Box 147, Barnstable,Barnstable County, Massachusetts. Page -1- COMPLNT4 6. The Defendant, Daniel M. Creedon III, is Clerk of the Barnstable Zoning Board of 49 Links Lane of Appe als with an address , Marstons Mills, Barnstable County, Massachusetts. 7. The Defendant,.James R. Hatfield, is an Associate Member of the Barnstable Zoning Board of Appeals, with a mailing address of P.O. Box 826, Hyannisport, Barnstable County, Massachusetts. 8. The Defendant, Sheila Geiler, is an Associate Member of the Barnstable Zoning Board of Appeals, with an address of P.O. Box 771, Hyannis,Barnstable County, Massachusetts. 9. The Defendant, John Norman, is an Associate Member of the Barnstable Zoning Board of Appeals;with an address of P.O. Box 1494, Marstons Mills,Barnstable County, Massachusetts. 10. The Defendant, Kelly Kevin.Lydon, is an Associate Member of the Barnstable Zoning Board of Appeals,with an address of Town of Barnstable ZBA Member. 200 Main Street,.Hyannis;Barnstable County,:Massachusetts. 11. The Defendant, Jeremy Gilmore, is an Associate Member of the Barnstable Zoning Board of Appeals,with an address of 83 Dunaskin Road, Centerville; Barnstable County, Massachusetts. 12. On or before 1981 and until August 2005, Ruth Grover(hereinafter"Grover") owned 181 School Street, Cotuit, MA. 13. In 1981, Grover decided to convert an existing garage into an apartment, which she intended to use for her daughter, Stacy. 14. Grover contracted with John McShane, a builder, (hereinafter"McShane") to,do the construction conversion. 15. In the October/early November 1981 time frame, McShane spoke with Joseph DaLuz (hereinafter"DaLuz"), the then authorized Building Inspector for the. Town, about the renovations to the Grover Garage. 16.. Prior to November 6, 1981,Plaintiff asserts and avers that John McShane and/or , Ruth Grover applied for a building permit for work in the Garage. ` 17. While the'Town by its own admission did not maintain records well from 1981 and no building permit can be found, a letter from DaLuz to Grover dated November 6, 1981, states that". . . with proper permits", work could be done on the garage. (hereinafter the"DaLuz Letter") The DaLuz,Letter is attached as Exhibit A. Page-2- COMPLNT4 18. The DaLuz Letter also suggests that McShane and DaLuz spoke prior to the work and that according to DaLuz, McShane intended to convert the existing garage into an"occasional workshop". 19. The DaLuz Letter also suggests that a building permit was applied for and given to McShane, since a) DaLuz says permission was granted provided that McShane obtained the proper permits and b) the Town subsequently conducted inspections, which was consistent with the issuance of a permit. . 20. In 2005,the Plaintiff made a request under the Massachusetts Public Records Act, M. G, L. Chapter 66 and the Town could not find any records regarding the 1981 renovation except for the DaLuz Letter. The Town has admitted that its record 'keeping dating back that far is.incomplete. 21. On or before November 6,1981, the garage was converted into a one bedroom apartment with a separate heating system,kitchen,bathroom, and utility box. 22. The Town of Barnstable Gas Inspector approved the furnace in the apartment on November 3, 1981, as evidence by a tag placed on the furnace,a copy of which is attached as Exhibit B. 23. On or about November 2, 1981,Buddy Martin, the then Assistant Building Inspector and John Newton, the then Wire Inspector inspected the property, which activity was consistent with issuance of a building permit. - 24. The Town also approved the installation of a separate electric meter on the apartment in or'around 1981. A copy of the Town's "Approved" tag attached as Exhibit C. 25. Mr.Newton noted that a water heater had been installed as part of a dwelling unit. , In addition, the apartment had a stove, kitchen sink,refrigerator, and bed, confirming that Grover constructed an apartment. (See Exhibit A) 26. Per the DaLuz letter, DaLuz requested that Grover come to see him within seven (7) days as the work appeared to be in violation of his permission and the permit, which likely issued. He further noted, "at that time a determination for compliance may be issued". (Exhibit A) 27. After receipt of Mr. DaLuz's letter, a friend of Grover, John Harvey timely communicated with DaLuz on Grover's behalf. This information was made available to the ZBA through the affidavit.of Marjorie Harvey, which is attached as Exhibit D. 28. On or after November 6, 1981, DaLuz and John Harvey discussed compliance of the renovation project with the permit. Page -3- COMPLNT4 29. After the communication with John Harvey, DaLuz approved changes to the original permit, allowing the garage to be converted into an apartment and to be used for residential purposes. 30. From and since November 1981 and until the sale of the house to the Plaintiff on August 9, 2005, the converted garage has been continuously used as a residential apartment. 31. From and since November 1981, the Building Department has been.fully aware of Grover's use of the-apartment for residential purposes. Copies of the DaLuz letter were also sent to the then ZBA and the then Town Counsel. 32. On June 12, 1989, Grover requested and was issued a building permit for an expansion of the existing main house including the construction of an addition and a septic system upgrade to a Title V system under the Board of Health regulations. The apartment was connected to both the old and the upgraded septic system. A copy of the permit is attached as.Exhibit E. 33. The Town issued the building permit to Grover with the knowledge that the apartment was constructed and occupied. If any structure,building or use was in violation of the zoning bylaw at that time, the permit would not have issued according to the State Building Code in effect at that time and the Town's policy. 34. With.knowledge of the apartment, the Town issued the building permit for expansion to the house in 1989. By granting the building.permit in 1989, the Building Department reconfirmed the Town's approval of the apartment. 35. In that same year(1989), the Town reassessed the Property, assessing the apartment as a separate unit and the property as a multifamily property: 36. The property continues to be assessed as a multifamily property through the filing of this complaint. Copy of the relevant Town's assessing records attached as Exhibit F. 37. In August 2005 the Board of Health inspected the property for Title V compliance and the inspection report indicates 4 bedrooms. The main house has three bedrooms, the fourth bedroom indicated on the report is therefore the apartment. A drawing on'the report indicates the location of the apartment and clearly shows the septic system serving both buildings, a copy of which is attached as Exhibit G. 38. On August 9, 2005,.Grover conveyed 181 School-Street to Susan Limoncelli. A copy of the Deed is attached as Exhibit H. 39. Ms. Limoncelli relied on information from the Town of Barnstable Assessor's Office and Board of Health, which records indicated that the.181 School Street Page-4- COMPLNT4 contained two residential units and was a multi-family property. See property Exhibits F and G. 40. Ms. Limonc elli also relied on Grover's real estate listings, advertising the property as including the second unit. 411. When determining her ability to afford.the purchase of the Property,Ms. Limoncelli included rental income from the apartment in her calculations. They rental income information was provided by.Grover. 42. On August 29, 2005, Linda Edson, a zoning enforcement officer for the Town sent a letter to Susan Limoncelli informing her that the apartment was unlawful. A copy ofthe.letter is attached as Exhibit.I. 43. Approximately two days later, Susan_Limoncelli and Albert Russo, her fiance, spoke with Linda Edson over the phone regarding the letter. 44. . Ms.Edson,acting on behalf of the Town, told the Plaintiff that the Building out the apartment for Department has known about p approximately 24 years, that,she (Ms Edson)personally knew about the apartment as she was a friend of Grover, and that she(Ms. Edson)had been to Grover's property on many occasions prior to becoming and Enforcement Officer. 45. This information was provided to the ZBA by affidavit, a copy of which is attached as Exhibit J. The statements of Ms Edson have never been rebutted. 46. When Thomas Perry, (hereinafter"Perry")the present Building Inspector/Commissioner was made aware of the conversation between the Plaintiff and Ms.Edson,he instructed Ms. Edson to notify individuals, who she knew orsuspected of violations as soon as she(Edson)became aware of them and not to ignore violations because of personal relationships. 47. On-or about April 1, 2007, Ms. Limoncelli applied to the Town for a building permit to make repairs to the main house. 48. On April 27, 2007, the Town sent a letter to Ms. Limoncelli advising her that based upon 780 CMR 111.2, the Building Department could not issue a building permit because the property was in violation. A copy of the letter is attached as Exhibit K. 49. In 2005 an&again in April 2007 Plaintiff requested a building permit to make repairs to the apartment. 50. On or about August 6, 2007 the Town of Barnstable Building Inspector/Commissioner denied the request for building permit for the apartmeni Page -5- COMPLNT4 . and denied.grandfather protection(under M. G. L. ch. 40A, §7 Y of the A copy letter is attached as Exhibit L. 51. Following Perry's denial of the apartment building permit, the Plaintiff appealed the Building Inspector's decision to the ZBA in conformance with the Town's Zoning By-law and M.G.L. ch. 40A. See copy of the Appeal attached as Exhibit M. (Some of the attachments to the Appeal are duplicated as separate exhibits in this complaint.) 52. On or about January 9, 2008, the matter was heard before the ZBA.and its individual members listed as Defendants. 53. At the time of the ZBA hearing the Plaintiff submitted additional supporting material. A copy of the additional material is attached as Exhibit N. 54. The additional material was presented and outlined in.the Plaintiffs oral presentation to the ZBA. 55. The ZBA voted to uphold the Building Commissioner's denial of a building permit for improvements;to the apartment. 56. A copy of the Decision,which was.date stamped.and,filed in the Town Clerk's Office in the.Town of Barnstable on January 23, 2008 is attached hereto and marked as Exhibit O: 57. At the ZBA hearing,Plaintiff's attorney questioned Perry about other multi- family dwellings in.the:same area as the Property. Plaintiffs counsel made specific reference to 468 Main. Street,which property was reported as illegal in September 2007. Perry responded that he had done work on that particular property and that he found no violation because that garage had been converted into an apartment before zoning regulations prohibited such a conversion. The ZBA accepted this answer as fact: 58. Town of Barnstable Assessor's Records indicate, however, that the property at 468 Main Street was inspected in 1972 and at that time, the property contained one house and two garages. Assessing records also.show,the 468 Main Street property listed as Single Family until 2004 (well after zoning regulations were enacted). In 2004 the property is recognized as "Multiple Family" Copy of assessing records on 468 Main Street attached as Exhibit P. r COUNT I APPEAL UNDER M G L A Chanter 40A, s. 17 59. The Plaintiff alleges and avers Paragraphs 1 through 58 and further alleges as follows: Page -6- COMPLNT4 60. The ZBA failed to consider and take into account pertinent information which included the sworn affidavits of Mrs. Harvey confirming the DaLuz/Harvey meeting and results thereof, documents such as inspection stickers, and a summary of information obtained from Buddy Martin, John McShane, and Joseph DaLuz further corroborating these events. This unrebutted historical information supports the Plaintiff's assertion that the apartment was constructed with the approval of the Building Inspector and a building permit, as amended by DaLuz. 61. The ZBA failed to recognize that the Town ratified its original approval of the ,~ apartment when it issued a building permit for the expansion of main house and assessed the Property as multifamily in 1989. It further failed to recognize that. the 1981 permit is most likely lost due to record keeping problems, acknowledged by the town. 62. The ZBA ignored the most logical conclusion based on all of the evidence Plaintiff presented, i.e. that the Town permitted the construction and approved the apartment: 63. The ZBA also failed to recognize.that the Town should be estopped from denying Ms. Limoncelli her permit based on the approvals of DaLuz, the acceptance of the work by Town employees/inspectors,who had knowledge of the apartment for over 24 years and the intentional, negligent, and/or malicious inactions/actions of Linda Edson ignoring an alleged violation to favor a friend. 64. The ZBA exceeded its authority in ignoring Plaintiff s presentation and refusing to find that the Property was a valid multifamily property and that the Plaintiff was entitled to a building permit to improve the apartment. 65. The ZBA based its decision on Perry's opinion,that no permit issued in 1981 despite Perry's admission that record keeping going back to 1981 was incomplete. 66. The ZBA also relied on perry's determination that.Plaintiff's 2007 request for a building permit for work on the main house was denied because the property was not in compliance due to the apartment; yet in 1989 the Town issued a building permit for work on the main house,.indicating that the property was in fact in compliance, otherwise the permit would not have issued. y 67. The ZBA completely ignored the last sentence of the DaLuz letter which states: "Therefore, I shall expect to see you in my office within seven (7) days of receipt of this letter with a method of correcting the violation. At that time a. determination for compliance may be issued." This request to meet for a determination of compliance clearly demonstrated that Daluz was determining whether or not the work being done on the apartment complied with the permit. Page -7- COMPLNT4 I 68. Daluz clearly made a decision to accept the work being done, thus allowing a modification of the original permit and approval of the apartment: If Daluz had determined otherwise,the Town would have issued a cease and desist order in 1981. 69. The ZBA also failed to consider the fact that the Town would not have issued the 1989 permit for work on the house,had the property been in violation of zoning laws due to the apartment. The ZBA decision on this point is an inaccurate and selective interpretation of the building regulation and Town policy, which prohibits issuing a building permit to a property with an illegal use and not in compliance with zoning. The fact that the Town issued a building permit in 1989 demonstrated that the Property was not in violation at that time and a legal multifamily property. E 70. The ZBA decision was arbitrary, capricious, and unreasonable and completely ignored the following unrebutted facts: a)Mrs. Harvey's affidavit confirmed that her husband met with Daluz,and i gained the Town's approval of the apartment. b) Conversations.with Buddy Martin,the assistant building inspector in . orate that Daluz met with;John Harvey and appr oved the 1981 corroborate Y apartment. . c)The several inspection certificates: gas, electric,board of health, etc, supporting the issuance of a building permit, which was later amended and approved by DaLuz. d)The issuance of the 1989 permit, which according to 780 CMR 111.2 and Town Policy, could only issue if the property was in total compliance with zoning. . e)The assessor's records showing the assessment as multifamily from 1989 to the present. -f)The statement by Perry that in another case where no building permit existed for a multifamily property,his personal opinion that the conversion had.taken place prior to zoning restrictions was sufficient to . find no violation. Town records show this-is not the case. Perry's actions show either selective enforcement or favoritism to people known to Perry. g) The issuance of multiple BOH permits for upgrades to the septic system as late as August, 2005, clearly,depicting the septic system linked to the house and the cottage apartment. . Page -8- COMPLNT4 71. The Plaintiff is aggrieved since her legal rights have been infringed and her property interests have been adversely affected. 72. Ms. Limoncelli has been damaged by the decision denying her use of the Property as a multifamily property and has lost income.from the apartment from and since August 2005. 73. Ms. Limoncelli's damages are equal to the amount of rental income, which she would have received from leasing.the.apartment',from 2006 to the present and beyond.. 74. The Plaintiff is aggrieved by the decision of the ZBA. Perry and the Town had rminations with res ect to the,a artment and the ability to make reasonable dete P p . rather applied arbitrary and capricious standards to the Limoncelli case, while applying other standards to similar cases. 75. Under the circumstances of the Plaintiff s case;she should have received the benefit of her presentation,.i:e. a building permit issued in.1.981.and was allowed to be modified to reflect and allow an apartment, all of which was approved by . DaLuz; this conclusion is more plausible than Perry's assumptions 76. The ZBA vote to uphold Perry's denial of the building permit exceeded its authority by failing to apply fair and equal standards to the Plaintiff s Appeal and- by failing to give equal weight to the'argument that a building permit had issued and that the Town had approved the apartment in 1981. 77. Further, the ZBA failed to consider the evidence in a light most favorable to the. `. Plaintiff. 78. The Plaintiff is aggrieved, since her legal rights have been or likely will be infringed and her property.interest has been adversely affected. WHEREFORE, the Plaintiff demands that the Barnstable Zoning Board of Appeals Decision dated January 23, 2008 (Exhibit O)be annulled and that the Court determine that the Plaintiff s property is entitled to the protection under M.G.L.A. c. 40A §6 and or for such other relief as the Court deems appropriate. COUNT II ESTOPPEL 79. The Plaintiff alleges and avers Paragraphs 1 through 78 and further alleges as follows: 80.' Plaintiff relied on Town records which, taken as a whole, indicated the existence of a legal apartment on the Property: . Page -9- COMP LNT4 . Joe Daluz Linda Edson Tom Perry, and other present and past 81. The actions of � Y officials of the Town of Barnstable in failing to maintain proper records, failing to enforce zoning.regulations in an equitable manner, and taxing, approving, and i listing the Property as a multifamily dwelling,rise above mere inadvertence. 82. This combination of circumstances, in which the Town issued a permit but failed to retain a copy, knew of the existence of the apartment for over 24 years, and benefitted from its existence through the collection of taxes, requires mandatory_ injunctive relief for the Plaintiff and an order estopping the Town from denying the Plaintiff a multifamily use of the.Property. 83. In extenuating circumstances such as this, the doctrine of estoppel is available against the Town, in accordance with general equitable principals 84. Because of the unclean hands of Town officials, the Town must now be estopped from denying the existence of the multifamily use of the Property, from denying a building permit for the renovation of.the apartment, and from selectively enforcing zoning regulations against the Plaintiff. 85. Plaintiff has offered sufficient evidence of the existence of a building permit for the apartment,and therefore the Town should be estopped from denying Plaintiff use of the apartment. WHEREFORE, the Plaintiff demands that: 1. The Barnstable Zoning Board of-Appeals be estopped from denying the existence of the multifamily use of the property and from denying a building permit for the apartment, and from selectively enforcing zoning restrictions against Plaintiff. 2. That the Court enter.orders to this.effect. 3. And for such other relief as the Court deems appropriate. COUNT III - DECLARATORY JUDGMENT r 86. The Plaintiff alleges and avers Paragraphs 1 through 85 and further,alleges as follows: 87. Plaintiff has presented ample evidence of the existence of a building permit and.of . the legality of the apartment, including, but not limited to, affidavits of persons with knowledge of the permit, correspondence indicating a permit,a lack of a cease and desist order for the property, subsequent building permits which would not have been issued had the property not been in compliance, and Town records listing and taxing the Property as multi—family dwelling. Page A 0- COMPLNT4 i 88.` Based on this evidence, this Court should declare that a permit-was issued for the conversion of the garage into an apartment and said permit precludes the Town from now limiting Plaintiffs use of the apartment. WHEREFORE,'the Plaintiff asks this Court to declare that a building permit was issued for the conversion of the garage into an apartment making the Property a legal multi family dwelling and prays for other relief as this Court deems appropriate. COUNT IV-MASSACHUSETTS TORT CLAIMS ACT, M.G. L. C. 258 89. The Plaintiff alleges and avers Paragraphs 1 through 88 and alleges as follows: 90. On September 30, 2005 Plaintiffs then attorney, David Burgess, served the Town of Barnstable with notice of Plaintiff s claims against the Town, her notification, ification, of damages, and her request for relief. A copy of the notification letter is attached as Exhibit Q. 91. The Town did not respond to this notice. 92. Pursuant to the Massachusetts Tort Claims Act, the Town is liable for the negligence of its employees acting in the scope of their employment. her capacity as`enforcement officer, was negligent in the 93. Linda Edson, m h p ty effectuation of her duties. Ms. Edson declared that she knew the apartment was in violation of zoning laws well prior to August 2005, and thus Ms. Edson had a duty to report this violation to the Town and notify the then owner, Mrs. Grover, 94. By her own admission, Ms. Edson ignored the alleged violation because of a --`' personal relationship with Mrs. Grover. '�- 95. Because of this'negligence by Ms. Edson, the alleged illegality of the apartment, ' only came to light after the Plaintiff purchased the property believing it to contain two legal residential units,paying the value of a multifamily property, and'relying on the future rental income. 96. Ms. Edson's negligence, and the negligent supervision of Ms. Edson by her superiors has damaged the Plaintiff. 97. Plaintiffs damages are equivalent to the difference in value of a multifamily and single-family dwelling,as well as rental income from and since the date of purchase into the future, and costs and fees associated with Plaintiffs defense of her right to use the apartment. WHEREFORE, the Plaintiff asks this Court to award her damages in the.amount of $100,000.00, the maximum allowable pursuant to the Massachusetts Tort Claims Act. Page -11- COMPLNT4 THE PLAINTIFF DEMANDS A'JURY TRIAL AS TO COUNT IV. Respectfully�Submifteq Michael J. Princi, E WYNN&WYNN, P.C. 300 Barnstable Road Hyannis, MA 02601 . (508) 775-3665 BBO#406680 Date: February.11, 2008 .Page -12 COMPLNT4 0 (jF BA:PRNS AAE COMMONWEALTH OF MASSACHUSETTS 2000 JUN f 0 `FM.E2, 4 3 SUPERIOR COURT BARNSTABLE,SS SUSAN LIMONCELLI Plaintiff V. : TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. JANSSON, DANIEL M. CREEDON III, JAMES R. HATFIELD,SHEILA GEILER JOHN NORMAN,JEREMY GILMORE, KELLY KEVIN LYDON and the TOWN OF BARNSTABLE Defendants DEPOSITION SUBPOENA To: Town of Barnstable Regulatory. Services Thomas Perry,Building Inspector 200 Main Street Hyannis, MA 02601 YOU ARE, HEREBY COMMANDED in the name of'..the Commonwealth of Massachusetts in accordance with the applicable provisions.of the Massachusetts Rules of Civil Procedure to appear `and testify`before a notary:public of the Commonwealth of Massachusetts atf the offices of Wynn,& Wynn,,P.C.,5300, Barnstable Road, Hyannis; Massachusetts 02601 on Tuesday , August 5, 2008 at 9:30 a.m. and to testify as to-your knowledge,at the taking of the deposition in the above entitled.action. Your failure, without adequate excuse,,to obey this subpoena may be deemed in contempt'of the Court in this action is pending. Respectfully submitted, By the Plaintiffs, Michael J. Pr in Wynn& Wynn, P C 300 Barnstable R ad Hyannis, MA 02 01 508/175-3665 BBO#406680 June 9, 2008 TOWN_ COUNSEL WAS ADVISED OF THIS SUBPOENA IN ADVANCE OF SERVICE It Town of Barnstable �111E t° Barnstable OFFICE OF TOWN ATTORNEY All-AmericaM MRNSTABLE, " 367 Main Street 9`bA1639. �`� Hyannis MA 02601-3907 rF0 MAC A y 2007 RUTH J.WEIL,Town Attorney Tel.#: 508-862-4620 T. DAVID HOUGHTON, 1st Assistant Town Attorney Fax#: 508-862-4724 CHARLES S. McLAUGHLIN,Jr.,Assistant Town Attorney CLAIRE R. GRIFFEN, Paralegal/Legal Assistant PAMELA D. GORDON, Legal Clerk Inter-office Memorandum To: Tom Perry, Building Commissioner From: Ruth J. Weil, Town Attorney Date: June 11, 2008 Subject: Limoncelli v ZBA and Town of Barnstable Our File Ref: 2008-0035 Please find attached Notice of Deposition for Tuesday; August 5, 2008 at 9:30 AM at the offices of Wynn & Wynn at 300 Barnstable Road. We will meet well in advance of the deposition to discuss same. Please do not hesitate to contact me with any questions. Thank you. RJW:pg attch C a I - w r r 20080035perrydepomemo.doc - COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT BARNSTABLE, SS DOCKET NO .2008-105 SUSAN LIMONCELLI Plaintiff V. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL,NIGHTINGALE,RON S. JANSSON,DANIEL M. CREEDON III, JAMES R. HATFIELD, SHEILA GEILER,JOHN NORMAN,JEREMY GILMORE, KELLY KEVIN LYDON and the TOWN OF BARNSTABLE Defendants DEPOSITION SUBPOENA To: Town of Barnstable Regulatory Services Thomas Perry,Building Inspector 200 Main Street Hyannis, MA 02601 YOU ARE HEREBY COMMANDED in the name of the Commonwealth of Massachusetts in accordance with the applicable provisions of the Massachusetts Rules of Civil Procedure to appear and testify before a notary public of the Commonwealth of Massachusetts at the offices of Wynn & Wynn, P.C., 300 Barnstable Road, Hyannis, Massachusetts 02601 on Tuesday,August 5, 2008 at 9:30 a.m. and to testify as to your knowledge,at the taking of the deposition in the above entitled action. Your failure, without adequate excuse, to obey this subpoena may be deemed in contempt of the Court in this action is pending. Respectfully submitted, By the Plaintiffs, ' v i Michael J. Prin ' Wynn&Wynn,P C. 1 300 Barnstable R ad Hyannis,MA 02 01 508/775-3665 BBO#406680 June 9,2008 TOWN COUNSEL WAS ADVISED OF THIS SUBPOENA IN ADVANCE OF SERVICE i i i F u;ti COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT BARNSTABLE, SS DOCKET NO .2008-105 i I SUSAN LIMONCELLI Plaintiff V. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. JANSSON, DANIEL M. CREEDON III,JAMES R. HATFIELD, SHEILA GEILER,JOHN NORMAN, JEREMY j GILMORE, KELLY KEVIN LYDON and the TOWN OF BARNSTABLE Defendants DEPOSITION SUBPOENA To: j Town of Barnstable Regulatory Services 1/ Thomas Ferry,Building Inspector 200 Main Street Hyannis, MA 02601 YOU ARE HEREBY COMMANDED in the name of the Commonwealth of Massachusetts in accordance with the applicable provisions of the Massachusetts Rules of Civil Procedure to appear and testify before a notary public of the Commonwealth of Massachusetts at the offices of Wynn.&Wynn;P:C.,--3-00 Barnstable Road, Hyannis, l Massachusetts 02601 on Tuesd August 5 2008 at 9 30-aim,Viand to testify as to your .knowledge, at the taking ofthe deposition in the above entit e action. Your failure, without adequate excuse, to obey this subpoena may be deemed in contempt of the Court in this action is pending. f r� G,J iG 1 1 Respectfully submitted, By the Plaintiffs, Michael J. Prin ' Wynn&Wynn, P C. 300 Barnstable R ad Hyannis,MA 02 Ol 508/775-3665 BBO#406680 June 9,2008 TOWN COUNSEL WAS ADVISED OF THIS SUBPOENA IN ADVANCE OF SERVICE i i t i - f " �4 ��� TOWN OF BARNSTABLE Barnstable A14=10 City BARNSTABLE. OFFICE OF TOWN ATTORNEY MASS. 9° 1639. �'� 367 MAIN STREET °p�EDa. HYANNIS, MASSACHUSETTS 02601-3907 2007 RUTH J.WEIL,Town Attorney ruth.weiI@town.barnstable.ma.us T. DAVID HOUGHTON, 1st Assistant Town Attorney david.houghton@town.barnstable.ma.us CHARLES S. McLAUGHLIN,JR.,Assistant Town Attorney charles.mclaughIin@town.barnstable.ma.us CLAIRE R. GRIFFEN, Paralegal/Legal Assistant June 10, 2008 claire.griffen@town.barnstable.ma.us PAMELA D.GORDON, Legal Clerk TEL.508-862-4620 •FAX.508-862-4724 Mr. Peter Roxo ; �] Massamont Insurance Agency, Inc. l 1i P. 0. Box 334 Ludlow, MA 01056 Re: Your Claim No.: MAS-0064103 Susan Limoncelli v Town of Barnstable; Barnstable Zoning Bd of Appeals Our File Ref.No.: 2008-0035 Dear Mr. Roxo: We recently received copies of the following documents: First Set of Interrogatories to Town of Barnstable, First Request for Admissions to Town of Barnstable, and First Request for Production of Documents to Zoning Board of Appeals, and First Request for Production of Documents to Town of Barnstable, and enclose copies for your files, which documents have currently been forwarded to the persons most knowledgeable about this matter.for their submission of answers. When the same have been returned to us, we shall forward these responses to you. , A copy of this communication with enclosures has also been forwarded to Mr. Douglas, Fisher of the Diversified Claims Division at Columbia Casualty Company (Claim: #HIA00084, Policy: #POL 223452230). / Sincerely, ti RJW:cg Ruth J. Weil, Town Attorney Encs. Town of Barnstable cc: Mr. Douglas Fisher, Claims, Columbia Casualty Co. Vcc: Mr. Thomas Perry,Building Commissioner cc: Ms. Linda Edson, Amnesty Enforcement Investigator cc: Mr. Art Traczyk, Zoning Board of Appeals f [2008-003 5\roxoltr2 w-l stsetrogsdocregstadmsns] ' a COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS SUPERIOR COURT DOCKET NO. BACV2008-105 SUSAN LIMONCELLI Plaintiff V. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. JANSSON, DANIEL M. CREEDON III, JAMES R. HATFIELD, SHEILA GEILER, JOHN NORMAN, JEREMY GILMORE, KELLY KEVIN LYDON and the TOWN OF BARNSTABLE Defendants INTERROGATORIES PROPOUNDED BY THE PLAINTIFF TO THE DEFENDANT TOWN OF BARNSTABLE TO BE ANSWERED BY THE PERSON MOST KNOWLEDGABLE Under authority of Rule 33, Massachusetts Rules of Civil Procedure, you are hereby requested to answer in writing and under oath, within forty-five (45) days from hereof, the following interrogatories. NOTE: These interrogatories are intended as continuing interrogatories requiring you to answer by supplemental answer, setting forth any information within the scope of these interrogatories as may be required by you, your agent(s), attorney(s), or representative(s) following your original answer, or as otherwise required by Rule 26 of the Massachusetts Rules of Civil Procedure. All information is to be divulged which is in the possession of the individual party, attorneys, investigators, agents, employees, or other representatives of the named party or attorneys. 1. Please state the name, address, and job title of thep6rson answering these interrogatories. 2. Please state when and in what capacities Linda Edson ever worked for the Town of Barnstable, giving dates of work,positions, her immediate supervisor, and work responsibilities. 3. Please state in detail any present positions held by Linda Edson,including a detailed job description and requirements of employment, when she became employed, her qualifications for the position, who hired her, the hiring process, and her title. 4. What were Linda Edson's duties as an employee of the Defendant Town in August of 2005 and what are her current duties? 5. Who were/are Linda Edson's supervisors, persons writing evaluations of/for her, or persons to whom she reports from 2000 through today? 6. With respect to all employee reviews for Linda Edson in the position she held in August 2005,please state in detail the date of such evaluation, the person who evaluated, and the specifics of the evaluation, including any acknowledgements required of Linda Edson. 7. Describe in detail all procedures that Linda Edson was or is expected to follow in order to locate or identify properties in the Town of Barnstable that may be in violation of zoning regulations: 8. Describe in detail all procedures that Linda Edson is expected to follow when a potential zoning violation comes to her attention, citing any written or documented procedures. 9. What discretion, if any, did Linda Edson have at any time during her employment as a Zoning Officer when a zoning violation came to her attention and what, if any, discretion does she currently have? 10. What was and is the procedure that Linda Edson was expected to follow in enforcing zoning violations? 11. Please provide the property addresses and owners information(with names and addresses) with respect to all properties in the Town of Barnstable, which have been cited for a violation of the single-family zoning regulation since 1990. 12. Of the properties identified in Question 10 which were cited for violations by Linda Edson,please state when and how these violations came to her attention and when and what action she took to enforce the Town's Zoning By-laws. to J 13. Which, if any, of the properties listed in Interrogatory No. 10 are still in violation? - RS ^,o 14. Which, if any, of the properties listed in Interrogatory No. 10 have received protecti under M.G.L. C. 40, § 6? 15. Which, if any, of the properties listed in Interrogatory No. 10 have received protection through the Town's Amnesty Program? 16. Please identify all manuals,handbooks, or guidelines, which Linda Edson was/is required to read and/or follow as part of her position. , 17. Who is responsible for ensuring that Linda Edson complies with any such manuals, handbooks, or guidelines, identified in the answer to Question 15? 18. Under the terms of her employment is it permissible for Linda Edson to work as an active real estate broker, real estate salesperson, real estate professional, or any private sector position outside of her employment with the Town? 19. What if any written or verbal guidelines have been promulgated by the Town regarding outside employment by town employees? 20. Is the Town aware of any outside employment by Linda Edson while she has served as a Zoning Officer? If so, what positions has she held and what were the dates of employment? Vpe Sub itted, by e Attorney, t ci, Esq. WYNN &VfYNN, P.C. 300 B st ble Road Hyannis, MA 02601 (508) 775-3665 BBO#406680 Date: June 3, 2008 , r - COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS SUPERIOR COURT DOCKET NO. BACV2008-105 SUSAN LIMONCELLI Plaintiff V. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. JANSSON, DANIEL M. CREEDON III, JAMES R. HATFIELD, SHEILA GEILER, JOHN NORMAN, JEREMY . GILMORE, KELLY KEVIN LYDON and the TOWN OF BARNSTABLE Defendants PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS a TO THE TOWN OF BARNSTABLE Pursuant to Rule 36 of the Massachusetts Rules of Civil Procedure, Plaintiff hereby requests that the Defendant, Town of Barnstable, admit or deny the following: 1. Linda Edson was a friend of Ruth Grover and/or the Grover Family for many years prior to her current employment with the Town of Barnstable as a Zoning Enforcement Officer and Plaintiffs purchase of 181 School Street, Cotuit, MA from Ruth Grover in August 2005. 2. Linda Edson visited the Grover property at 181 School Street, Cotuit, MA prior to her current employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiff s purchase of the 181 School Street, Cotuit property in August 2005. 3. Linda Edson had knowledge of the garage apartment on the property prior to her current employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street, Cotuit property in August 2005. 4. Linda Edson had knowledge that the property may have been in violation of the Town of Barnstable's Single Family Zoning By-law prior to her, employment with the Town.of Barnstable as a Zoning Enforcement Officer and the Plaintiff's purchase of the 181 School Street, Cotuit, MA property in August 2005. 5. Linda Edson had knowledge that Ruth Grover's daughter Tracy lived in the garage apartment prior to Ms. Edson's employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiff's purchase of the 181 School Street Cotuit property in August 2005. 6. Linda Edson had knowledge that Ruth Grover rented the garage apartment to others prior to Ms. Edson's employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiff's purchase of the 181 School Street, Cotuit property in August 2005. 7. Linda Edson was a licensed and practicing real estate professional prior to and during her employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiff s purchase of the 181 School Street in August 2005 8. Prior to her employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiff's purchase of the 181 School Street property in August 2005, Linda Edson was aware that the garage apartment on the Grover property at 181 School Street, Cotuit, MA may have been an illegal apartment. 9. Prior to August 2005 Linda Edson had knowledge of the letter written by Joe DaLuz to Ruth Grover in 1981, a copy of which is attached and marked as Exhibit A. 10. On August 29, 2005, Linda Edson wrote a letter to the Plaintiff advising her that 181 School Street, Cotuit was in violation of the Town's Zoning By-law. 11. Within a few days of the August 291h letter, Linda Edson received a telephone call from the Plaintiff and Albert Russo to discuss Ms. Edson's letter. 12. During that conversation, Linda Edson said the following in the same or similar terms: a. I am a long time friend for Ruth Grover. b. I have been to the property on many occasions in the past. c. I have been in the garage apartment in the past. d. The Town has known about the apartment for many years. e. There is a file of information about the property in Town of Barnstable records, including the Joe DaLuz Letter. 13. Linda Edson described to the Plaintiff and Albert Russo the contents of the Daluz letter during the telephone conversation on or about September 1, 2005. c52— 14. Linda Edson provided Albert Russo a copy of the DaLuz letter the following day, at the Building Department office. 15. Prior to August 2005 Linda Edson had knowledge that the Grover property at 181 School Street, Cotuit, MA was assessed and taxed as a multi-family property. 16. Prior to August.2005 Linda Edson never notified Ruth Grover that her f property at 181 School Street, Cotuit, MA may be in violation of the zoning regulations. 17. Linda Edson never attempted to enforce the zoning regulations against Ruth Grover, when Ruth Grover owned 181 School Street, Cotuit, MA. 18. Within a short time after Ruth Grover sold the property at 181 School Street, Cotuit, MA to the Plaintiff in August 2005, Linda Edson initiated enforcement proceedings against Plaintiff based on the alleged illegality of the garage apartment. 19. As a result of complaints made by the Plaintiff or her representatives regarding Ms. Edson's conduct, Thomas Perry, the Town's Building Commissioner counseled Linda Edson to the effect that in the future she must immediately notify owners when she becomes aware of a potential non- compliance with the zoning regulations, and not to delay enforcement for any reason. 20. The Town of Barnstable Building Commissioner has unilaterally determined that the property located at 468 Main Street, Cotuit, MA is a lawful multifamily property without any supporting building permits, documentation or evidence of zoning relief. 21. The property located at 468 Main Street, Cotuit MA is in a single family zoning district. 22. The property located at 468 Main Street, Cotuit, MA was first assessed as a , multifamily property in 1987. 23. The property located at 468 Main Street, Cotuit,MA has never been granted any zoning relief to allow multifamily use. 24. The use of the property located at 468 Main Street, Cotuit MA as multifamily does not predate the Town of Barnstable Zoning By-law. Respectfully Submitted, The Plaintiff by her Attorney, I ich 4J//PrinZci, Escqi. WYNN, P.C. 300 a stable Road Hyannis, MA 02601 (508) 775-3665 BBO#406680 Date: June 3, 2008 r COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS SUPERIOR COURT DOCKET NO. BACV2008-105 SUSAN LIMONCELLI Plaintiff V. v TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. JANSSON, DANIEL M. CREEDON III, JAMES R. HATFIELD, SHEILA GEILER, JOHN NORMAN, JEREMY GILMORE, KELLY KEVIN LYDON and the TOWN OF BARNSTABLE Defendants , PLAINTIFF'S FIRST REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THE DEFENDANT TOWN OF BARNSTABLE ZONING BOARD OF APPEALS Pursuant to Rule 34 of the Massachusetts Rules of Civil Procedure, the Plaintiff hereby requests that the Defendant produce for inspection and copying the documents indicated below which are in its possession, custody or control, or the possession, custody or control of any one or more of its representatives, agents or employees at the offices of WYNN &WYNN, P.C., 300 Barnstable Road, Hyannis, Massachusetts on or before thirty(30) days from receipt of this Request. To the extent that a response to this request duplicates a response being submitted by the Defendant Town of Barnstable, only one response is required with proper notation to that effect. Further,production of documents in electronic format(including but not limited to .doc, .pdf, etc) is acceptable provided each documents is Bates numbered.' DEFINITIONS AND INSTRUCTIONS 1. The term "document" shall have the same meaning as the term "document" as that term is used in Massachusetts Rules of Civil Procedure, Rule 34, and shall include, without limitation, (a) any and all correspondence, letters, telegrams, cable, telex messages, memoranda,notes and notations, note papers, interoffice and interdepartmental communications, transcripts,books,pamphlets,periodicals, articles,press clippings, samples of any kind,promotional materials, advertising materials, email, any other form of electronic communication, requisitions, resolutions, certificates, opinions,reports, studies, analyses, evaluations, applications, approvals, petitions, contracts, licenses, assignments, agreements, ledgers, checks, check stubs,books and records of account, I statistical records desk calendars diaries list tabulations summaries, charts, graphs, photographs, computer tapes and printouts, magnetic tapes, microfilm, all forms of digital communications and storage,punch cards, and all other written or graphic matter; and, (b) the original and each non-identical copy or duplicate of any of the foregoing, whether such copy of duplicate is non-identical by reason of handwritten notation or otherwise. The documents requested shall be from 1975 to the present unless otherwise stated. 2. If the Defendant contends that any requested document is privileged or otherwise not subject to discovery, or if any requested document is withheld for any other reason, please state as to each such document: a. its date; b. each author or addressor of the document; C. each recipient or addressee of the document; d. the substance of the document; e. as to each original, duplicate original, or reproduction thereof, its last known location and the identity of the person in whose possession, custody or control it then was; and f. the specific grounds or reasons asserted for withholding the document. This request is to include all after-acquired documents of the type made reference to in this Request. The Defendant is therefore requested to update the Production of Documents by forwarding copies to the Plaintiff, or by putting the Plaintiff on notice as to any newly acquired, material. The named Defendant will not be required to produce any requested documents, which any other Defendant has produced under any other discovery request. REQUESTS f I. All documents relating to assessing records, tax records, Zoning Board of Appeals records, Building Department records, any other Town Department records, correspondence,plans,maps, deeds, and permits, for all multiple family dwellings located in areas zoned for single family occupancy in the Town of Barnstable, excepting any properties under a Comprehensive Permit. 2. All documents, including but not limited to, assessing records, tax records, Building Department records, other Town department records, correspondence,plans, maps, deeds,.and permits,related to 181 School Street, Cotuit, Massachusetts. 3. All documents related to the enforcement actions against multifamily use in a single family zoning district in the Town of Barnstable. � 1 4. All documents, including but not limited to, applications, minutes, reports, tax records, correspondence, plans, maps, deeds, and permits, relating to all multi-family properties, recognized as grandfathered pursuant to M.G.L.A. c. 40A §6 in the Town or Barnstable and specifically in the Village of Cotuit. 5. All documents, assessing records, tax records, Zoning Board of Appeals records, Building Department records and logs, any other Town Department records, correspondence,plans, maps, deeds, and permits, relating to all non-conforming structures granted immunity in the Town of Barnstable pursuant to the Town of Barnstable Amnesty Program. 6. All documents, assessing records, tax records, Zoning Board of Appeals records, Building Department records, any other Town Department records, correspondence, plans, maps, deeds, and permits, relating to all appeals of all Building Inspector determinations regarding enforcement of single family restrictions in the Zoning By- law . 7. All documents, assessing records, tax records, Zoning Board of Appeals records, Building Department records, any other Town Department records, correspondence, plans,maps, deeds, and permits relating to any variance and/or special permit granted to any property by the Zoning Board of Appeals, where the requested relief and/or resulting outcome was the allowance of a multi-family use in a single family zoning district or the use of a portion of a single family zoned property for an additional living unit, excepting any Comprehensive Permits. 8. All documents prepared by Linda Edson or any person in the Zoning Enforcement section of the Building Department in relation to the enforcement of zoning restrictions in the Town of Barnstable. 9. All documents relating to any instruction, protocol, procedure,practice and enforcement with respect to Zoning Enforcement in the Town of Barnstable from 1975 to the present. 10. All documents relating to the employment of Linda Edson by the Town, including but not limited to her employment personnel folder,her job description,job performance records, and more specifically all records relating to her actions with respect to the matters set forth in the Plaintiff's complaint. 11. All documents, including but not limited to, applications, contracts, evaluations, reports, correspondence;handbooks, e-mail messages, and memorandum, related to the job and performance of Linda Edson. 12. All assessor records, reports, field cards, reassessment records, inspection records or data files of any kind for 181 School Street, Cotuit, MA, Assessor's Map 20 Lot 90. I ' 13. All documents,building department records,building department logs, building permits, plumbing permits, electrical permits, gas permits,reports, field cards, assessment/reassessment records, inspection records or data files of any kind for 181 School Street, Cotuit, MA, Assessor's Map 20 Lot 90. 14. Any and all documents relating to ethical standards, codes of'conduct, or performance requirements of the Town of Barnstable for its employees, including but not limited to any codes of conduct, employee handbooks, written instructions, email directives, Town Manager orders, Department Head orders, or writings of any kin_ d where Town of Barnstable employee conduct is set forth from 1981 to the present. Respectfully Submitted, ZfThePtiff by r A to ey, a . rm s . ` WYNN & , , P.C. 300 Barnst le Road Hyannis, MA 02601 (508) 775-3665 BBO#406680 Date: June 3, 2008 �I M COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS SUPERIOR COURT DOCKET NO. BACV2008-105 SUSAN LIMONCELLI Plaintiff V. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. JANSSON, DANIEL M. CREEDON 111, JAMES R. HATFIELD, SHEILA GEILER, JOHN NORMAN, JEREMY GILMORE, KELLY KEVIN LYDON and the TOWN OF BARNSTABLE Defendants PLAINTIFF'S FIRST REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THE DEFENDANT TOWN OF BARNSTABLE Pursuant to Rule 34 of the Massachusetts Rules of Civil Procedure, the Plaintiff hereby requests that the Defendant produce for inspection and copying the documents indicated below which are in its possession, custody or control, or the possession, custody or control of any one or more of its representatives, agents or employees at the offices of WYNN &WYNN, P.C., 300 Barnstable Road, Hyannis, Massachusetts on or before thirty(30) days from receipt of this Request. To the extent that a response to this request duplicates a response being submitted by the Defendant Town of Barnstable Zoning Board of Appeals, only one response is required with proper notation to that effect. Further, production of documents in electronic format(including but not limited to .doc, .pdf, etc) is acceptable provided each documents is Bates numbered. DEFINITIONS AND INSTRUCTIONS 1. The term "document" shall have the same meaning as the term "document" as that term is used in Massachusetts Rules of Civil Procedure, Rule 34, and shall include, without limitation, (a) any and all correspondence, letters, telegrams, cable, telex messages, memoranda, notes and notations, note papers, interoffice and interdepartmental communications, transcripts,books, pamphlets,periodicals, articles, press clippings, samples of any kind,promotional materials, advertising materials,requisitions, resolutions, certificates, opinions, reports, studies, analyses, evaluations, applications, approvals,petitions, contracts, licenses, assignments, agreements, ledgers, checks, check stubs,books and records of account, statistical records, desk calendars, diaries, list I . tabulations, summaries, charts, graphs, photographs, computer tapes and printouts, magnetic tapes, microfilm, punch cards, email, any other form of electronic communications and digital storage, and all other written or graphic matter; and, (b) the original and each non-identical copy or duplicate of any of the foregoing, whether such copy of duplicate is non-identical by reason of handwritten notation or otherwise. The documents requested shall be from 1975 to the present unless otherwise stated. 2. If the Defendant contends that any requested document is privileged or otherwise not subject to discovery, or if any requested document is withheld for any other reason, please state as to each such document: a. its date; b. each author or addressor of the document; C. each recipient or addressee of the document; d. the substance of the document; e. as to each original, duplicate original, or reproduction thereof, its last known location and the identity of the person in whose possession, custody or control it then was; and f. the specific.grounds or reasons asserted for withholding the document. This request is to include all after-acquired documents of the type made reference.to in this Request. The Defendant is therefore requested to update the Production of Documents by forwarding copies to the Plaintiff, or by putting the Plaintiff on notice as to any newly acquired material. The named Defendant will not be required to produce any requested documents, which any other Defendant has produced under any other discovery request. REQUESTS 1. All documents relating to assessing records, tax records, Zoning Board of Appeals records, Building Department records, any other Town Department records, correspondence,plans, maps, deeds, and permits, for all multiple family dwellings located in areas zoned for single family occupancy in the Town of Barnstable, excepting any properties under a Comprehensive Permit. a 2. All documents, including but not limited to, assessing records, tax records, Building Department records, other Town department records, correspondence,plans,maps, deeds, and permits, related to 181 School Street, Cotuit, Massachusetts. 3. All documents related to the enforcement actions against multifamily use in a single family zoning district in the Town of Barnstable. 4. All documents, including but not limited to, applications, minutes, reports, tax records, correspondence, plans,maps, deeds, and permits, relating to all multi-family properties, recognized as grandfathered pursuant to M.G.L.A. c. 40A §6 in the Town of Barnstable and specifically in the Village of Cotuit. 5. All documents, assessing records, tax records, Zoning Board of Appeals records, Building Department records and logs, any other Town Department records, correspondence, plans, maps, deeds, and permits, relating to all non-conforming structures granted immunity in the Town of Barnstable pursuant to the Town of Barnstable Amnesty Program. 6. All documents, assessing records, tax records, Zoning Board of Appeals records, Building Department records, any other Town Department records, correspondence, plans, maps, deeds, and permits, relating to all appeals of all Building Inspector determinations regarding enforcement of single family restrictions in the Zoning By- law. 7. All documents, assessing records, tax records, Zoning Board of Appeals records, Building Department records, any other Town Department records, correspondence, plans,maps, deeds, and permits relating to any variance and/or special permit granted to any property by the Zoning Board of Appeals, where the requested relief and/or resulting outcome was the allowance of a multi-family use in a single family zoning district or the use of a portion of a single family zoned property for an additional living unit, excepting any Comprehensive Permits. 8. All documents prepared by Linda Edson or any person in the Zoning Enforcement section of the Building Department in relation to the enforcement of zoning restrictions in the Town of Barnstable. 9. All document relating to any instruction,protocol, procedure, practice and enforcement with respect to Zoning Enforcement in the Town of Barnstable from 1975 to the present. 10. All documents relating to the employment of Linda Edson by the Town, including but not limited to her employment personnel folder, her job description,job performance records, and more specifically all records relating to her actions with respect to.the matters set forth in the Plaintiff's complaint. I L All documents, including but not limited to, applications, contracts, evaluations, reports, correspondence,handbooks, e-mail messages, and memorandum, related to the job and performance of Linda Edson. 12. All assessor records, reports, field cards, reassessment records, inspection records or 3 data files of any kind for 181 School Street, Cotuit, MA,Assessor's Map 20 Lot 90. 13. All documents,building department records, building department logs, building permits, plumbing permits, electrical permits, gas permits,reports, field cards, assessment/reassessment records, inspection records or data files of any kind for 181 School Street, Cotuit, MA, Assessor's Map 20 Lot 90. 14. Any and all documents relating to ethical standards, codes of conduct, or performance requirements of the Town of Barnstable for its employees, including but not limited to any codes of conduct, employee handbooks, written instructions, email directives, Town Manager orders, Department Head orders, or writings of any kind where Town of Barnstable employee conduct is set forth from 1981 to the present. 15. All documents, including but not limited to, assessing records, tax records, Building Department records, other Town department records, correspondence, plans, maps,, deeds, and permits, related to 468 Main Street, Cotuit, Massachusetts. Respectfully Sub fitted, The Pl 'nt'ff by Pe At ey, 4 is ael J. rIITI, Eq. ' WYNN &7002601 300 Ban stad Hyannis, M (508) 775-3665 BBO#406680 Date: June 3, 2008 1 � . 1 l COMMONWEALTH OF MASSACHUSETTS BARNSTABLE,SS SUPERIOR COURT DOCKET NO.BACV200S-105 SUSAN LIMONCELLI Plaintiff V. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS,GAIL NIGHTINGALE,RON S.JANSSON,DANIEL M.CREEDON III,JAMES R.HATFIELD,SHEILA GEILER,JOHN NORM",JEREMY GILMORE, KELLY KEVIN LYDON and the TOWN OF BARNSTABLE , Defendants INTERROGATORIES PROPOUNDED BY THE PLAINTIFF TO THE DEFENDANT - TOWN OF BARNSTABLE TO BE ANSWERED BY THE PERSON MOST KNOWLEDGABLE Under authority of Rule 33,Massachusetts Rules df Civil Procedure,you are hereby - requested to answer in writing and under oath,within forty-five(45)days from hereof,the following interrogatories. NOTE These interrogatories are intended as continuing interrogatories requiring you to answer by supplemental answer,setting forth any information within the scope of these interrogatories as maybe required by you,your agent(s),attoracy(s),or representatives) following your original answer,or as otherwiseveyuired by Rule 26 of the Massachusetts Rules of Civil Procedure. All information is to be divulged which is in the possession of the individual party, attorneys,inveatigators,agents,employees,or other representatives of the named party or attomays. - 1. Please state the name,address,and job title of the p"n answering time interrogatories. 2. Please state when and in what capacities Linda Edson ever worked for the Town of Barnstable,giving dates of work,positions,her immediate supervisor,and work rrspansibilities. a s L ew_3 xaw papaaOx3 (5 '3 uo i }OauuOO a L iwi sD'e.� ON (t .3 - a arnsur? ON K '3 A s n 9 (Z -3 Lie} au i L ao on 2u'eH (L '3 AOaaa eOJ uosvaa 0 Xi A"w'N l6SC lu.aS .11N jlnsq (s) �d uoi1euilsa0 apoN 'ON a�ed alit Ms 8 800Z 9Z 'unr ; aw11/ajPQ (z (l ( MS :8 800E '96 'unr ) jaoda� jlnsq uoileoiunwwoo ` ,d Barnstable TOWN OF BARNSTABLE M� O� AHmedcaCfty BARNSTABLE. OFFICE OF TOWN ATTORNEY 9 MASS. �a I�p 1639• �� 367 MAIN STREET prFDMlp HYANNIS, MASSACHUSETTS 02601-3907 2007 RUTH J.WEIL,Town Attorney ruth.weiI@town.barnstable.ma.us T DAVID HOUGHTON, 1 st Assistant Town Attorney david.hougMon@town.barnstable.ma.us CHARLES S. McLAUGHLIN,JR.,Assistant Town Attorney charles.mclaughlin@town.barnstable.ma.us CLAIRE R. GRIFFEN, Paralegal/Legal Assistant claire.griffen@town.barnstable.ma.us PAMELA D.GORDON, Legal Clerk TEL.508-862-4620 -FAX. 508-862-4724 July 7, 2008 { at Michael Princi, Esq. Attorney at Law WYNN & WYNN, P.C. 300 Barnstable Road Hyannis, MA 02601 Re: Limoncelli v. Town of Barnstable Zoning Bd of Appeals; et al, and Town of Barnstable - Superior Court, CA No. BACV 2008-105 Our Ref: #2008-0035 Dear Michael: Enclosed please find the Defendant, Town of Barnstable's Response to Plaintiff's First Request for Admissions as prepared by its Building Commisisoner, Thomas Perry. Further enclosed are Linda Edson's Supplemental Answers to Plaintiff's,First Request for Admissions in the above matter. Si erely ours, s .� RJW:cg Ruth J. Weil own Attorney _ r Encs. Town of Barnstable W 1 [2008-0035\Princiltr-2-supplemental response-ed son-rgstadmissions] COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BACV2008-105 --------------------------------------------------------- SUSAN LIMONCELLI, RESPONSE OF THOMAS PERRY, Plaintiff, TO PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS TO THE TOWN V. ) BARNSTABLE. TOWN OF BARNSTABLE ZONING ) BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. ) JANSSON, DANIEL M. CREEDON I11, ) - JAMES R. HATFIELD, SHEILA GEILER, ) JOHN NORMAN, JEREMY GILMORE, ) , KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE, ) Defendants. ) --------------------------------------------------------- Pursuant to Rule 36 of the Massachusetts Rules of Civil Procedure, Thomas Perry, hereby responds to the Plaintiff's First Requests for Admissions on behalf of the Town of Barnstable, as follows: y Statement No. 1: 1. Linda Edson was a friend of Ruth Grover and/or the Grover Family for many years prior to her current employment with the Town of Barnstable as a Zoning Enforcement Officer and Plaintiffs purchase of 181 School Street, Cotuit, MA from Ruth Grover in August 2005. RESPONSE: Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent contractor. Statement No. 2: 2. Linda Edson visited the Grover property at 181 School Street,-Cotuit, MA prior to her current employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street, Cotuit property in August 2005. RESPONSE: Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of [2008-0035\rspnstorqstadmsnslimontotob-l-edson] ] I I f Barnstable as an independent contractor. Statement No. 3: 3. Linda Edson had knowledge of the garage apartment on the property prior to her current employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street, Cotuit property in August 2005. RESPONSE: Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent contractor. Statement No. 4: 4. Linda Edson had knowledge that the property may have been in violation of the Town of Barnstable's Single Family Zoning By-law prior to her employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street, Cotuit, MA property in August 2005. RESPONSE: Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent contractor. J Statement No. 5: 5. Linda Edson had knowledge that Ruth Grover's daughter Tracy lived in the garage apartment prior to Ms. Edson's employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street Cotuit property in August 2005. RESPONSE:Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent contractor. Statement No. 6: 6. Linda Edson had knowledge that Ruth Grover rented the garage apartment to others prior to Ms. Edson's employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street, Cotuit property in August 2005. RESPONSE: Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent contractor. [2008-003 5\rspnstorgstadmsns1imontotob-l-edson] 2 t' t r Statement No. 7: 7. Linda Edson was a licensed and practicing real estate professional prior to and during her employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street in August 2005. RESPONSE: Admit only so much of statement that"Linda Edson (is) a licensed and practicing real estate professional and neither admit nor deny but are without sufficient information to form a belief about the remaining allegations in this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent contractor. Statement No. 8: 8. Prior to her employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street property in August 20,05, Linda Edson was aware that the garage-apartment on the Grover property at 181 School Street, Cotuit, MA may have been an illegal apartment. RESPONSE: Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the.Town of Barnstable as an independent contractor. Statement No. 9: 9. Prior to August 2005 Linda Edson had knowledge of the letter written by Joe DaLuz to Ruth Grover in 1981, a copy of which is attached and marked as Exhibit A. RESPONSE: Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In.further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent contractor. Statement No. 10: 10. On August 29, 2005, Linda Edson wrote a letter to the Plaintiff advising her that 181 School Street, Cotuit was in violation of the Town's Zoning By-law. RESPONSE: Admit. Statement No. 11: 11. Within a few days of the August 29th letter, Linda Edson received a telephone call from the Plaintiff and Albert Russo to discuss Ms. Edson's letter. . [2008-0035\rspnstorgstadmsnslimontotob-l-edson] 3 r RESPONSE: : Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent contractor. , Statement No. 12: 12. During that conversation, Linda Edson said the following in the same or similar terms: a. I am a long time friend for Ruth Grover. RESPONSE: : Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent contractor b. I have been to the property on many occasions in the past. .RESPONSE: Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent contractor. c. I have been in the garage apartment in the past. RESPONSE: Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent contractor. d. The Town has known about the apartment for many years. RESPONSE: Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent contractor. - e. There is a file of information about the property in Town of Barnstable records, including the Joe DaLuz Letter. RESPONSE: Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that e [2008-0035\rspnstorgstadmsns1imontotob-l-edson] 4 Linda Edson works for the Town of Barnstable as an independent contractor. Statement No.13: 13. Linda Edson described to the Plaintiff and Albert Russo the contents of the Daluz letter during the telephone conversation on or about September 1, 2005. RESPONSE: Neither.admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as.an independent contractor. Statement No. 14: 14. Linda Edson provided Albert Russo a copy of the DaLuz letter the following day, at the Building Department office. RESPONSE: Admit Statement No. 15: 15. Prior to August 2005 Linda Edson had knowledge that the Grover property at 181 School Street, Cotuit, MA was assessed and taxed as a multi-family property. RESPONSE: Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent contractor. Statement No. 16: 16 Prior to August 2005 Linda Edson never notified Ruth Grover that her property at 181 School Street, Cotuit,MA may be in violation of the zoning regulations. RESPONSE: Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent " contractor. Statement No. 17: 17. Linda Edson never attempted to enforce the zoning regulations against Ruth Grover, when Ruth Grover owned 181 School Street, Cotuit, MA. [2008-0035\rspnstorqstadmsnslimontotob-l-edson] 5 f i RESPONSE: : Neither admit nor deny but are without sufficient information to form a belief about this statement and in further DENY each allegation not specifically admitted herein. In further answering, Defendant states that Linda Edson works for the Town of Barnstable as an independent contractor. Statement No. 18: 18. Within a short time after Ruth Grover sold the property at 181 School Street, Cotuit, MA to the Plaintiff in August 2005, Linda Edson initiated enforcement proceedings against Plaintiff based on the alleged illegality of the garage apartment. RESPONSE: Deny the characterization "initiated enforcement proceedings" and admit that on August 29, 2005 she mailed the attached letter to Susan Limoncelli. Statement No. 19: 19. As a result of complaints made by the Plaintiff or her representatives regarding Ms. Edson's conduct, Thomas Perry, the Town's Building Commissioner counseled.Linda Edson to the effect that in the future she must immediately notify owners when she becomes aware of a potential non-compliance with the,zoning regulations, and not to delay enforcement for any reason. , RESPONSE: Deny Statement No. 20: 20. , The Town of Barnstable Building.Commissioner has unilaterally determined that the property located at 468 Main Street, Cotuit, MA is a lawful multifamily property without any supporting building permits, documentation or evidence of zoning relief. RESPONSE: Deny. Statement No. 21: 21. The property located at 468 Main Street, Cotuit MA is in a single family zoning district. RESPONSE: Admit Statement No. 22: 22. The property located at 468 Main Street, Cotuit, MA was first assessed as a multifamily property in 1987. RESPONSE: Deny Statement No.23: 2-3. The property located at 468 Main Street, Cotuit, MA has never been granted any zoning relief to allow multifamily use. • [2008-0035\rspnstorgstadmsns1imontotob-l-edson] 6 i RESPONSE: OBJECTION. Defendant states that this request is vague, impre ' e and ov rbro . uth J. Weil, Esq. Statement No. 24: 24. The use of the property located at 468 Main Street, Cotuit MA as multifamily does not predate the Town of Barnstable Zoning By-law. RESPONSE: OBJECTION. Defendant states that this request is vague, imprecis overly d. ly (except J. Weil,Esq. Signed under the pains and penalties of perju as to the objections)this 7t" day of July, 2008. Thomas Perry TO: MICHAEL J. PRINCI, ESQ. [B.B.O. No. 406680] Attorney for Plaintiff WYNN& WYNN, P.C. 310 Barnstable Road Hyannis, MA 02601 ' 508-775-3665; 508-775-1244 Fax CERTIFICATE OF SERVICE Barnstable,+ss: July 7, 2008: I hereby certify under the pains and penalties of perjury that I caused to be served by hand-delivery to Plaintiff's attorney, a copy of the above document on the date written above. [2008-0035\rspnstorgstadmsnslimontotob-l-edson] 7 i� Ffuth Weil, To VbI torney own of Barn [2008-0035\rspnstorgstadmsnslimontotob-l-edson] g r COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BACV2008-105 ---------------------------------------------- SUSAN LIMONCELLI, SUPPLEMENTAL RESPONSE Plaintiff, ) OF LINDA EDSON, TO PLAINTIFF'S FIRST REQUEST V. ) FOR ADMISSIONS. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. JANSSON, DANIEL M. CREEDON 11I, ) JAMES R. HATFIELD, SHEILA GEILER, ) JOHN NORMAN, JEREMY GILMORE, ) KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE, ) Defendants. ) --------------------------------------------------------- Pursuant to Rule 36 of the Massachusetts Rules of Civil Procedure, Linda Edson, hereby provides this supplemental response to the Plaintiff s First Requests for Admissions as follows: Statement No. l: 1. Linda Edson was a friend of Ruth Grover and/or the Grover Family for many years prior to her current employment with the Town of Barnstable as a Zoning Enforcement Officer and Plaintiffs purchase of 181 School Street, Cotuit, MA from Ruth Grover in August 2005. RESPONSE: Deny Statement No. 2: 2. Linda Edson visited the Grover property at 181 School Street, Cotuit, MA prior to her current employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street, Cotuit property in August 2005. RESPONSE: Admit only so much of the statement that "Linda Edson visited the Grover property at 181 School Street, Cotuit, MA" and the Plaintiffs purchase of the 181 School Street, Cotuit property in August 2005", Deny the remaining allegations in the statement and in further answering state that Linda Edson visited the premises on one occasion for five minutes. In further answering, Linda Edson states that she is working for the Town of Barnstable as an independent contractor. [2008-0035\rspnstorgstadmsns1imontotob-l-edson] j r I Statement No. 3: 3. Linda Edson had knowledge of the garage apartment on the property prior to her current employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street, Cotuit property in August 2005. RESPONSE: Admit only so much of the statement that"Linda Edson had knowledge of the garage apartment on the property prior to her current employment with the Town of Barnstable and the Plaintiffs purchase of the 181 School Street, Cotuit property in August 2005", Deny the remaining allegations in the statement and in further answering state that Linda Edson visited the premises on one occasion for five minutes and that she is working for the Town of Barnstable as an independent contractor. Statement No. 4: 4. Linda Edson had knowledge that the property may have been in violation of the Town of Barnstable's Single Family Zoning By-law prior to her employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street, Cotuit, MA property in August 2005. RESPONSE: Deny. Statement No. 5: 5. Linda Edson had knowledge that Ruth Grover's daughter Tracy lived in the garage apartment prior to Ms. Edson's employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street Cotuit property in August 2005. - RESPONSE: Deny ?Statement No. 6: 6. Linda Edson had knowledge that Ruth Grover rented the garage apartment to others prior to Ms. Edson's employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street, Cotuit property in August 2005. RESPONSE: Deny,- Statement No. 7: 7. Linda Edson was a licensed and practicing real estate professional prior to and during her, employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street in August 2005. RESPONSE: Admit only so much of statement that"Linda Edson was a licensed and practicing real estate professional prior to and during her employment with the Town of Barnstable and the Plaintiffs purchase of the 181 School Street in August 2005" and Deny the remaining allegations not specifically admitted herein J _ 3 [2008-0035\rspnstorgstadmsnshmontotob-l-edson] .2 Statement No. 8: 8. Prior to her employment with the Town of Barnstable as a Zoning Enforcement Officer and the Plaintiffs purchase of the 181 School Street property in August 2005, Linda Edson was aware that the garage apartment on the.Grover property at 1.81 School Street, Cotuit, MA may have been an illegal apartment. RESPONSE: Deny Statement No. 9: 9. Prior to August 2005 Linda Edson had knowledge of the letter written by Joe DaLuz to Ruth Grover in 1981, a copy of which is attached and marked as Exhibit A. RESPONSE: Deny Statement No. 10: 10. On August 29, 2005, Linda Edson wrote a letter to the Plaintiff advising her that 181 School Street, Cotuit was in violation of the Town's Zoning By-law. RESPONSE: Admit Statement No. 11: 11. Within a few days of the August 29th letter, Linda Edson received a telephone call from the Plaintiff and Albert Russo to discuss Ms. Edson's letter. RESPONSE: Admit Statement No. 12: 12. During that conversation, Linda Edson said the following in the same or similar•terms: RESPONSE: a. I am a long time friend for Ruth Grover. RESPONSE: Deny b. I have been to the property on many occasions in the past. F RESPONSE: Deny c. I have been in the garage apartment in the past. RESPONSE: Admit. d. The Town has known about the apartment for many years. RESPONSE: Deny [2008-0035\rspnstorgstadmsnslimontot6b-l-edsonl 3 i e. There is a file of information about the property in Town of Barnstable records, including the Joe DaLuz Letter. RESPONSE: Admit Statement No.13: 13. Linda Edson described to the Plaintiff and Albert Russo the contents of the Daluz letter during the telephone conversation on or about September 1, 2005. r RESPONSE: Deny Statement No. 14: 14. Linda Edson provided Albert Russo a copy of the DaLuz letter the following day, at,the Building Department office. RESPONSE: Admit v Statement No. 15: 15. Prior to August 2005 Linda Edson had knowledge that the Grover property at 181 School Street, Cotuit, MA was assessed and taxed as a multi-family property. RESPONSE: Deny Statement No. 16: 16. Prior to August 2005 Linda Edson never notified Ruth Grover that her property at 181 School Street, Cotuit, MA may be in violation of the zoning regulations. RESPONSE: Admit but in further answering state that Linda Edson was unaware of the violation prior to August 2005. Statement No. 17: 17. Linda Edson never attempted to enforce the zoning regulations against Ruth Grover, when Ruth Grover owned 181 School Street, Cotuit, MA. RESPONSE: Admit but in further answering state that Linda Edson was unaware of the violation prior to August 2005. .f Statement No. 18: 18. Within a short time after Ruth Grover sold the property at 181 School Street, Cotuit, MA to the Plaintiff in August 2005, Linda Edson initiated enforcement proceedings against Plaintiff based on the alleged illegality of the garage apartment. RESPONSE: Deny the characterization "initiated enforcement proceedings" and admit.that on August 29, 2005 she mailed the attached letter to Susan,Limoncelli. [2008-003 5\rspnstorgstadmsnsl imontotob-l-edson] 4? I t I r ' • i � 1 Statement No. 19: 19. As a result of complaints made by the Plaintiff or her representatives regarding Ms. Edson's conduct, Thomas Perry,the Town's Building Commissioner counseled Linda Edson to the effect that in the future she must immediately notify owners when she becomes aware of a potential non-compliance with the zoning regulations, and not to delay enforcement for any reason. RESPONSE: Deny Statement No. 20: 20. The Town of Barnstable Building Commissioner has unilaterally determined that the property located at 468 Main Street, Cotuit,MA is a lawful multifamily property without any supporting building permits, documentation or evidence of zoning relief. RESPONSE: Deny. Statement No.-21: 21. The property located at 468 Main Street, Cotuit MA is in a single family zoning district. RESPONSE: Admit Statement No. 22: - 22. The property located at 468 Main Street, Cotuit, MA was first assessed as a multifamily property in 1987. RESPONSE: Deny E Statement No.23: 23. The property located at 468 Main Street, Cotuit, MA has never been granted any zoning relief to allow multifamily use. , RESPONSE: OBJECTION. Defendant states that this request is vague, imprecise an verly bro Xv_ th J. Weil sq. Statement No. 24: 24.1 The use of the property located at 468,Main Street, Cotuit MA as multifamily does not predate the Town of Barnstable Zoning By-law. RESPONSE: OBJECTION. [2008-003 5\rspn storgstadmsnslimontotob-l-edsonl 5 Defendant states that this request is vague; imprecise and overly broad. 1 uth J. Weil, sq. Signed under the pains and penalties of perjury (except as he objections) this 7"' day of July, 2008. 'Lind dson TO: MICHAEL J. PRINCI, ESQ. [B.B.O. No. 406680] Attorney for Plaintiff WYNN & WYNN, P.C. 310 Barnstable Road Hyannis, MA 02601 508-775-3665; 508-775-1244 Fax CERTIFICATE OF SERVICE Barnstable, ss: July 7, 2008. I hereby certify under the pains and penalties of perjury that I caused to be served by mailing hand-delivery to Plaintiff's attorney, postage prepaid, a copy of the above document,on the date written above. Ruth J. Attorney 'Town o�Weil,JT4wn Ba ble ; y [2008-0035\rspnstorgstadmsns1imontotob-I-edson] 6 r COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BACV2008-105' --------------------------------------------------------- SUSAN LIMONCELLI, ) RESPONSE OF BARNSTABLE Plaintiff, ZONING BOARD OF APPEALS TO PLAINTIFF'S FIRST REQUEST V. ) FOR DOCUMENTS. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. JANSSON, DANIEL M. CREEDON III, ) JAMES R. HATFIELD, SHEILA GEILER, ) JOHN NORMAN, JEREMY GILMORE, ) KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE, ) Defendants. ) Pursuant to Rule 34 of the Massachusetts Rules of Civil Procedure, the Defendant, Town of Barnstable, hereby answers the Plaintiff s First Request for Production of Documents, as follows: [Use for autotext entry: "ob"= Objection: ] REQUESTS: " 1. All documents relating to assessing records, tax records, Zoning Board of Appeals-records, Building Department records, any other Town Department records, correspondence, plans, maps, deeds, and permits, for all multiple family dwellings located in areas zoned for single family occupancy in the Town of Barnstable, excepting any properties under a Comprehensive Permit. ` RESPONSE: 2. All documents, including but not limited to, assessing records,tax records, Building Department records, other Town department records, correspondence, plans, maps, deeds, and permits, related to 181 School Street, Cotuit, Massachusetts. RESPONSE: 3. All documents related to the enforcement actions against multifamily use in a single family [2008-0035\rqstdocsto-zba-(2)] 1 zoning district in the Town of Barnstable. RESPONSE: 4. All documents, including but not limited to, applications,minutes, reports,tax records, correspondence, plans, maps, deeds, and permits, relating to all multi-family properties, recognized as grandfathered pursuant to M.G.L.A. c. 40A §6 in the Town of and specifically in the Village of Cotuit. RESPONSE: 5. All documents, assessing records,tax records,Zoning Board of Appeals records, Building Department records and logs, any other Town Department records,correspondence, plans, maps, deeds, and permits, relating to all non-conforming structures granted immunity in the Town of Barnstable pursuant ' to the Town of Barnstable Amnesty Program. RESPONSE: 6. All documents, assessing records,tax records, Zoning Board of Appeals records, Building Department records, any other Town Department records, correspondence, plans,maps, deeds, and permits, relating to all appeals of all Building Inspector determinations regarding enforcement of single family restrictions in the Zoning By-law. RESPONSE: 7. All documents, assessing records,tax records,Zoning Board of Appeals records, Building Department records, any other Town Department records, correspondence, plans, maps, deeds, and permits relating to any variance and/or special permit granted to any property by the Zoning Board of Appeals, where the requested relief and/or resulting outcome was the allowance of a multi-family use in a single family zoning district or the use of a portion of a single family zoned property for an additional living unit, excepting any Comprehensive Permits. RESPONSE: 8. All documents prepared by Linda Edson or any person in the Zoning Enforcement section of the Building Department in relation to the enforcement of zoning restrictions in the Town of Barnstable. RESPONSE: 9. All document relating to any instruction, protocol, procedure, practice and enforcement with respect to Zoning Enforcement in the Town of Barnstable from 1975 to the present. RESPONSE: - rt ' � [2008-0035\rgstdocsto-zba-(2)] 2 c o , 10. All documents relating to the employment of Linda Edson by the Town, including but not limited to her employment personnel folder, her job description,job performance records, and more specifically all records relating to her actions with respect to the matters set forth in the Plaintiffs complaint. RESPONSE: 11. All documents, including but not limited to, applications, contracts, evaluations, reports, correspondence, handbooks, e-mail messages, and memorandum, related to the job and performance of Linda Edson. RESPONSE: 12. All assessor records, reports, field cards,reassessment records, inspection records or data files of any kind for 181 School Street, Cotuit,MA,Assessor's Map 20 Lot 90. RESPONSE: 13. All documents, building department records, building department logs, building permits, plumbing permits,electrical permits, gas permits, reports,field cards, assessment/reassessment records, inspection records or data files of any kind for 1 81 School Street, Cotuit, MA,Assessor's Map20 Lot 90. RESPONSE: 14. Any and all documents relating to ethical standards, codes of conduct,or performance 'x requirements of the Town of Barnstable for its employees, including but not limited to any codes of conduct, employee handbooks, written instructions, email directives,Town Manager orders, Department Head orders, or writings of any kind where Town of Barnstable employee conduct is set forth from 1981 to the present. 'RESPONSE: Dated: June , 2008. [2008-0035\rgstdocsto-zba-(2)] 3 TOWN OF BARNSTABLE, Defendant, By its Attorneys, RUTH J. WEIL, Town Attorney, [B.B.O. No. 519285] T. DAVID HOUGHTON, First Asst. Town Attorney [B.B.O. No. 241160] CHARLES S. McLAUGHLIN, JR., Assistant Town Attorney [B.B.O. No. 336880] TOWN OF BARNSTABLE 367 Main Street,New Town Hall Hyannis, Ma. 02601-3907 508-862-4620; 508-862-4724 Fax TO: MICHAEL PRINCI,ESQ. [B.B.O.No. 406680] Attorney for Plaintiff WYNN& WYNN, P.C. 300 Barnstable Road Hyannis, MA 02601-2513 508-775-3665, 508-775-1244 Fax , CERTIFICATE OF SERVICE Barnstable, ss: June , 2008. I hereby certify under the pains and penalties of perjury, that I caused to be mailed by first-class mailing, postage prepaid, a copy of the above document to the attorney for the above- named party on the date written above. Claire Griffen, Legal Assistant Town of Barnstable 367 Main Street,New Town Hall Hyannis, Ma 02601-3907 508-862-4620; 508-862-4724 Fax [2008-0035\rqstdocsto-zba-(2)] 4 7 Is. , oFt Town of Barnstable Is Regulatory Services • BARNSfABLE, MAC. $ Thomas F. Geiler, Director E%6 A. Building Division Thomas Perry, CBO Building Commissioner 200 Main Street, Hyannis, MA 02601 www.town.barnstable.ma.us Office: 508-862-4038 Fax: 508-790-6230 June 12, 2008 To Whom It May Concern: For inspection report pertaining to John LeBoeuf, please pay the following: 19 Copies at .20 a page 3.80 8 hr of Clerical time at 18.55 148.40 TOTAL $152.20 `r Please make check payable to the Town of Barnstable Sincerely, Thomas Perry, CBO Building Commissioner o'j(,Je 5 y r � m, ■DB September 30, 2005 Thomas Geiler, Director of Regulatory Services Tom Perry, Building Commissioner - ' Building Department Town of Barnstable ± -� 3 200 Main Street Hyannis, MA 02601 r"a ; r^- Re: 181 School Street, Cotuit,MA 02635 Dear Mr. Geiler and Mr. Perry: I represent Susan Limoncelli. On August 11,2005 Ms. Limoncelli purchased a home at 181 School Street, Cotuit. Less than three weeks later, she received a letter from Ms. Linda Edson informing her that the home,she had just purchased was in'v`iolation of _ Town zoning laws. A copy of Ms. Edson's August 291etterfis attached for your convenience. Ms.�Limoncelli asked me shortly.after.her receipt of Linda Edson's letter,,, to advise her concerning her obligations to the Town of Barnstable`, as well as her rights.. regarding,the alleged zoning violation she has unknowingly inherited with the purchase of her home in Cotuit s Ms. Limoncelli purchased the home with the understanding that it included a legitimate separate income-generating cottage. If, as Ms. Edson contends, Ms. Limoncelli is required either to convert that building to a barn or garage or to apply to your Amnesty Program, then she has purchased a property that is worth substantially less than she paid. Although we are still reviewing this matter so that Ms. Limoncelli can make a fully- informed decision about.how to proceed, Ms. Edson's recent conduct has created an emergency situation that needs to be resolved immediately. Without authority to do so, and in apparent contravention of the Town's by-laws and the State Building Code, Ms. Edson caused the Town's building inspector to order a contractor who was performing ordinary and necessary repairs on the property to cease all work. This has left the property exposed to the elements and in a state of disrepair. Inexplicably, Ms. Edson took this action the same day that she had sent a letter giving Ms:Limoncelli until October 7, 2005 to make arrangements to bring her property into :compliance. c c , .i �. t t .. ♦ .. e a s ._� t t1 '�ry t, � 1 ir,+.d�.-a.4 v. i d i. ttk� „r.•., l r � �� � ��� i../��.t 5. 1?.. tlJ � .rl ta:..,.,t Ms Edson contends in her August 29,letter that,the property is not in compliance because rah t it is"currently.being used as amulti-family home. Although Ms. Edson's'statement about the current use of,the property is factually,incorreet,we understand that the alleged violation is based upon features'of a separate building on Ms. Limoncelli's'property that www.burgesslaw.com David Burgess &Associates 37 Main Street Concord MA 01742-2529 t 978 371 1900 f 978 371 1144 } - t Thomas Geiler,Director of Regulatory Services Tom Perry,Building Commissioner 9/30/2005 Page 2 have in the past enabled it to be used as a separate residence. The previous owner rented that building to a tenant without interference from the Town for many years. Ms. Edson has told Ms. Limoncelli that she knew that the separate building was being used as a residence before she was hired to her present position and that she continued to be aware of it throughout her tenure: The tenant moved out just before Ms. Limoncelli purchased the property. Now, as soon as the ownership of the property changed, it suddenly has become a priority to bring the property into compliance. Such selective enforcement is unfair and, as detailed below, has harmed, and is harming Ms. Limoncelli financially. Ms. Edson's effort to force Ms. Limoncelli into immediate action is an abuse of her power and borders on extortion. This conduct seems particularly arbitrary and capricious in light of: : 1. Ms. Edson's tolerance of the property's alleged non-compliance while it was owned by a person who was her friend and whose son was her friend and business acquaintance; and 2. the Town's tolerance of this condition for almost 24 years (see the enclosed copy of a November 6, 1981 letter from the town to Mrs. Grover that Ms. Edson recently gave Ms. Limoncelli). Ms. Edson's conduct, and subsequently that of Building Inspector Jeffrey Lauzon,has caused financial harm to Ms. Limoncelli, and will involve considerable additional harm if she is unable to secure her home against the elements. Had Ms. Edson acted as her position requires, Ms. Limoncelli would have purchased with notice of the restriction on the cottage. She woul-ri have known that she would not be free to rent to whomever she wanted, and she would have paid substantially less for the property or perhaps not purchased the property at all. Instead, Ms. Edson waited until her friend had sold the property, and then promptly sent a notice of violation to Ms. Limoncelli. Further, in response to Ms. Limoncelli's request for reasonable time to investigate her options,Ms. Edson has taken action to pressure Ms. Limoncelli, as if this were suddenly a matter of the utmost urgency. , On September 26, 2005, after Ms. Limoncelli's contractor had begun making necessary repairs of the kind that do not require a permit(see 780 CMR §§101.3, 202.0), she received a visit from Mr. Lauzon the Town's building inspector.ector. He first said that his p visit was a random inspection,but then admitted that he had come after discussing the p g property with Ms. Edson. (The use by Ms. Edson and Mr. Lauzon of Town departments to coerce people into submission is an abuse of their positions.) The inspector posted a www.burgesslaw.com David Burgess &Associates 37 Main Street Concord MA 01742-2529 t 978 371 1900 f 978 371 1144 47 . - - 6„ Thomas Geiler, Director of Regulatory Services _ Tom Perry,Building Commissioner 9/30/2005 Page 3 notice prohibiting further work on the property and prohibiting occupancy, on the ground that no permit had been obtained. As a result, in some places the only thing protecting the property from the elements is tar paper. Additionally, a new roof is necessary to protect the property from rain and snow damage. The order prevents Ms. Limoncelli from doing anything to protect her property,even though such repairs do not require a permit. (Her contractor told her that this was the first time ever that such a demand.had been made of him for this type of repair work.) Finally, in case,you have the impression that Ms:Limoncelli has somehow been uncooperative in this matter, I believe the following chronology demonstrates otherwise: • Ms. Limoncelli acquired the property on August,11, 2005. n Aug ust ust 29 2005 Ms. Edson informed her in writingthat the `ro ert' w s' g P p Y as in violation of current zoning. • On September 1, 2005, Ms. Limoncelli and her partner, Bert Russo,called Ms. Edson to find out what the problem was. Ms. Edson told them that they had purchased a property with an illegal rental unit. She then acknowledged that she was friendly with Mrs. Grover(the previous owner) and her son, Paul Grover, acknowledged having known that the property was in violation before she took the job, and mentioned that the Town had sent a letter to Mrs. Grover 24 years before about the same violation. She then told Ms..Limoncelli and Mr. Russo about the Amnesty Program. • On September 2, 2005,when Bert Russo went to the Town Offices and requested additional information, Ms. Edson handed him a copy of the notice the Town had sent the previous owner in 1981 (a copy of that letter is enclosed with this letter). . • On September 6, 2005,.Ms. Limoncelli got a call from Beth Dillen,Project . Coordinator for the Amnesty Program. Ms. Dillen said that Ms. Edson had told her that Ms. Limoncelli was going,to be participating in the program, and was calling to schedule an appointment with the building inspector and to deliver the program application. At Ms. Limoiicelli's request,Ms. Dillen sent her ad information package about the program. The package arrived in the mail on ' September 12', 2005. • On September 19, 2005, Ms:Dillen called and asked Ms. Limoncelli-what she had-decided to do about the Amnesty Program. Ms. Limoncelli responded that she had not yet decided and was still in the process of gathering information in order to be able to make an informed decision. Ms.Limoncelli pointed out to Ms. Dillen that in light of the Town's 24 years of inaction on this zoning violation,,she, a www.burgesslaw.com David Burgess &,Associates • - 37 Main Street Concord MA 01742-2629 _t 978 371 1900 f 978 371 1144. I Thomas Geiler, Director of Regulatory Services Tom Perry, Building Commissioner 9/30/2005 Page 4 felt the Town had an obligation to give her adequate time to research the issue without rushing her into a decision when she had only owned the property for one month. Apparently that response was not acceptable. The stop work order followed immediately thereafter. With this letter, I enclose a copy of a public records request Ms. Limoncelli has sent to the Town. Although we are unlikely to achieve a long-termesoiutiou of this matter until we have had a chance to review the requested documents,we demand that the restriction on repairs be lifted immediately. The current work being done did not require a permit, and the inspector had no right to order the work to be stopped. The Town's rights would not be prejudiced by allowing these repairs to proceed, and its potential liability for future damage to the property would be reduced if the contractor could complete the repairs. If the stop work order is not lifted,Ms. Limoncelli intends to initiate legal action seeking emergency injunctive relief and an award of damages against the Town and those individuals involved in this selectively coercive action. Please get back to me, or have Town counsel get back to me, without delay. Sincerely, David Burgess cc: John Klimm,Town Manager Linda Edson, Amnesty Zoning Enforcement Officer Jeffrey Lauzon, Building Inspector Ms. Susan Limoncelli www.burgessIaw.com David Burgess &Associates 37 Main Street Concord MA 01742-2529 t 978 371 1900 f 978 371 1144 yy ALBERT J. R 508-428-65.28 p.2 f� ►q,, Town of Barnstable ti . Regulatory Services p . �aNszA . . MAM Thomas F.Geiler;Director .1639 Building Division Thomas Perry,Building Commissioner 200 Main Street, Hyannis,MA 02601' www.town.barnstable.ma.us Office: 508-862-4024 Fax: 508-790-6230 August 29, 2005 Ms. Susan 7 imoncelli 181 School Street Cotuit,Ma. 02635 Re:Illegal Apartment—181 School Street Cotuit,Ma. 02635 F Map 020 Parcel 090 Dear Property Owner: Our records indicate that your house at the above-referenced location is currently being used as a multi-family home,which is contrary to Barnstable Zoning Ordinances. Violation of zoning ordinances is a misdemeanor,conviction for which results in a t criminal record. t You must contact this office within 14 days to either: • Apply for a building permit to restore the property to a one-family home __ • Apply to the Amnesty Program • Prove that this is a legal two-family home: Please contact this office immediately to tell us what direction you wish to take. %ncer � Li dson Amnesty Program Zoning Officer Building Department r Qrortm:zoning3 - COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BACV2008-105 SUSAN LIMONCELL-I, AFFIDAVIT OF BUILDING Plaintiff COMMISSIONER THOMAS PERRY IN SUPPORT OF. V. ) DEFENDANT. TOWN OF BARNSTABLE'S MOTION FOR TOWN OF BARNSTABLE ZONING SUMMARY JUDGMENT ON COUNT IV OF BOARD OF APPEALS, AND ITS PLAINTIFF'S AMENDED COMPLAINT. MEMBERS, GAIL NIGHTINGALE, RON S. ) JANSSON, DANIEL M. CREEDON III, ) JAMES R. HATFIELD, SHEILA GEILER, ) JOHN NORMAN, JEREMY GILMORE, ) KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE, ) Defendants. ) I,THOMAS PERRY, on oath depose and state as follows: 1. I have full knowledge of the facts stated herein. 2. I hold the position of Building Commissioner for the Town of Barnstable. I have held that position since July 2002. The Building Department or Building Division is one of four divisions under the umbrella of the Town of Barnstable Department of Regulatory Services. 3. The other divisions of the Department of Regulatory Services are Health, Conservation and Consumer Affairs. All divisions of the Regulatory Services Department are housed at 200 Main Street, Hyannis, MA. 4. On or about September 26, 2005;Ms. Susan Limoncelli was issued a stop work order by Town of Barnstable Building Inspector, Jeffrey Lauzon regarding work that was being down on the accessory.structurelocated at 181 School Street Cotuit, Massachusetts. (App. 3) 1 5. The work was being undertaken without the required building permit. 6. On or about October 3, 2005, the Building Division of the Town of Barnstable 'received a letter from Attorney David Burgess written on behalf of Ms. Limoncelli and dated.September 30, 2005. (App. 4). 7. Mr. Burgess' letter was clocked in at 1:03 p.m. in the Building Division The attached letter(App. 4), is from the files of the Town of Barnstable Building Division, and bears the date of receipt; time of receipt and a line followed by the word"Division". (App. 4) It was the stamp used by the Building Division in 2005. 8. The letter was addressed to Thomas Geiler, Director of Regulatory Services and Tom Perry, Building Commissioner, Building Department, Town of Barnstable, 200 Main Street, Hyannis, MA. The letter states and requests the following: "With this letter, I enclose a copy of a public records request Ms. Limoncelli has sent to the Town. Although we are unlikely to achieve a long-term resolution of this matter until we have had'a chance to review the requested documents,we demand that the restriction on repairs'be lifted immediately. The current work being done did not require a permit, and the inspector had no right to order the work to lie stopped. The Town's rights would not be prejudiced by allowing these repairs to proceed, and its potential liability for future damage to the property would be reduced if the contractor could complete the repairs. If the-stop work order is not lifted,Ms. Limonceili intends to initiate legal action seeking emergency injunctive relief and an award of damages against the Town and those individuals involved in this selectively coercive action." (App. 4) - i 9. On or about October 21, 2005, the Building Division lifted the "stop work order" on the property and issued,a building permit(#87796) to repair and replace the front'door and rotted wood on the exterior of the accessory structure. (Building Permit#87796, App. 5) The Building Division performed the final inspection on November 21,2005. e - i ..2 10. On or about December 9, 2005,the Building Division issued a building permit to re- roof the main house and the accessory structure at the premises located at 181 School Street, Cotuit, Massachusetts. (Building Permit#88945, App. 6, Building Permit#88946, App. 7) 11. The Building Division issued said permits in response to the letter it received on October 3, 2005 from Attorney David Burgess and after communication with Albert Russo. Also, Susan Limoncelli filed applications for building permits,as required. 12. On or about June 16, 2006, Town of Barnstable Building Inspector, Robert McKechnie,discovered that a deck was being replaced at the property located at 181 School Street, Cotuit,Masschusetts without the benefit of a building permit. 13. On or about June 20, 2006,a building permit with a permit number of 2006-1337 was issued for the Property for a deck replacement. (Building Permit#2006-1337, App. 10). 14. On or about July 17, 2006, a building permit was issued for the Property for a repair of a front porch. (Building Permit#2006-1753, App. 11). 15. On or about June 19, 2007, a building permit was issued for the Property for a repair of a front porch and screens. (Building Permit #2007-01506, App. 12. 16.. The subject property at'181 School Street, Cotuit, Massachusetts, owned by Plaintiff Susan Limoncelli, is located.in the Residence F (RF) Zoning District where single family residential dwelling (detached) is the only principle permitted use Signed under the pains and penalties of perjury this 2nd day of March 2010. Thomas Perry, Building Commissioner 3 Barnstable y pF'1HE ip� TOWN OF BARNSTABLE All-America City 6ARNSTABLE. i -OFFICE OF TOWN ATTORNEY - vo MASS. 367 MAIN STREET — t679 pprE�M►>ia HYANNIS, MASSACHUSETTS 02601-3907 2007 RUTH J. WEIL,Town Attorney May 20, 2010 ruth.weil@town.barnstable.ma.us T. DAVID HOUGHTON, 1st Assistant Town Attorney david.houghton@town.barnstable.ma.us CHARLES S. McLAUGHLIN,JR.,Assistant Town Attorney charles.mclaughIin@town.barnstable.ma.us CLAIRE R:GRIFFEN, Paralegal/Legal Assistant claire.griffen@town.barnstable.ma.us PAMELA D,.-GORDON, Legal Clerk TEL.508-862-4620 -FAX. 508-862-4724 Scott Nickerson,Esq., Clerk --Barnstable-Superior Court, Civil `County Court Complex,Main Street R.G. Box 425 Barnstable;Ma. 02630-0425 Re: C.A.No. BACV-2008-00105-Susan Limoncelli_v:Town of Barnstable;Zoning Board of Appeals, et al (Our File Ref: #2008-0035) Dear Mr.Nickerson: Enclosed herewith please find for filing the original motion documents on Defendants' Motion for Dismissal of Count IV of Plaintiff-s-.Amended Complaint with their appropriate Certificates of Service: -- List of Documents on Defendants' Motion for Dismissal of Count IV of Plaintiff's Amended Complaint; -- Defendants' Notice of Motion for Dismissal of Count IV of Plaintiff's Amended Complaint; -- Defendants' Motion for Dismissal of Count IV of Plaintiff's Amended Complaint with attachments; -- Memorandum in Support of Defendants' Motion to Dismiss Count IV of Plaintiff's Amended Complaint; -- Defendants' Request for Hearing for Thursday,July, 15, 2010; and, -- Plaintiff s Opposition to Defendants' Motion to Dismiss Count IV of Plaintiff s Amended Complaint. Thank you. Sincerely yours, RJW:cg �RguthJ. We'Y, own Attorney Encs. Town of Barnstable IT = : Q cc: Michael J. Princi, Esq.;Jeni A. Landers,Esq. ' ' --- cc: Zoning Board of Appeals,Art Traczyk fi cc: 1/Building Commissioner,Thomas Perry i [2008-003 5\n ickltrori gmotd ismi sscountivpamdcompl aint052010] - COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No: BACV 2008-00105 ---------- SUSAN LIMONCELLI, Plaintiff, LIST OF DOCUMENTS IN V. SUPPORT OF DEFENDANTS' MOTION FOR DISMISSAL OF TOWN OF BARNSTABLE ZONING ) COUNT IV OF PLAINTIFF'S ` BOARD OF APPEALS, AND ITS ) AMENDED COMPLAINT. MEMBERS, GAIL NIGHTINGALE, RON S`. °) JANSSON, DANIEL M. CREEDON III, ) JAMES R. HATFIELD, SHEILA GEILER; ) JOHN NORMAN, JEREMY GILMORE, KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE,. Defendants. ) ----------------------------------------------------- The Defendants, Town of Barnstable, in accordance with Superior Court Rule 9A, list the following documents, each with their appropriate certificates of service,on behalf of the Defendants' Motion for Dismissal of Count IV of Plaintiff's Amended Complaint, as follows: -- List of Documents on Defendants' Motion for Dismissal of Count IV of Plaintiff's Amended Complaint; -- Defendants' Notice of Motion for Dismissal of Count IV of Plaintiff's Amended Complaint; -- Defendants'"Motion for Dismissal of Count IV of Plaintiff's Amended Complaint a with attachments; , -- Memorandum in Support of Defendants' Motion to Dismiss Count IV of Plaintiff s Amended Complaint; -- Defendants' Request for Hearing for Thursday;July 15, 2010; and, -- Plaintiff s Opposition to.Defendants' Motion to Dismiss;Count IV of Plaintiff s .Amended Complaint Dated: MY 20, May 2010. „ [2008-0035\listofdocsondsmotdismcountivpamdcmplt052010] 1 TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, ETC., ET AL, & the TOWN OF BARNSTABLE, Defendants, By their ttorneys' RUTH J. WEIL, Towrt/Attorney I[B.B.O.No. 519285]/ iruth.weilQtown.bamstable.ma.us DAVID HOUGHTON, First Asst. Town Attorney [B.B.O.No. 241160] david.hou hg ton�town.barnstable.ma.us CHARLES S. McLAUGHLIN, JR., Assistant Town Attorney [B.B.O.No. 336880] charles.mclaughlin2town.barnstable.ma.us TOWN OF BARNSTABLE 367 Main.Street,New Town Hall Hyannis, Ma. 02601-3907_ 508-862-4620; 508-862-4724 Fax TO: MICHAEL PRINCI,ESQ. [B.B.O.No. 406680] myrinci Mnnandwynn.com JENI A. LANDERS,ESQ: [B.B.O.No. 669921) i landers2wynnandwynn.com WYNN& WYNN, P.C. Attorneys for Plaintiff WYNN& WYNN,P.C. , 300 Barnstable Road ] Hyannis, MA 02601-2513 508-775-3665, 508-775-1244 Fax CERTIFICATE OF SERVICE Barnstable, ss: May 2.0, 2010. I hereby certify under the pains and penalties of perjury that a copy of the above document was forwarded to the Plaintiff's attorney �y first-cla ffiail, postage prepaid, on the above date. LFc'i• ,/ C Griffen, L '"al Assistant Town of Barnste . [2008-003 5\listofdocsondsmotdismcountivpamdcmp]t0520 10] 2 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BACV 2008-00105 ---------------------------------------------------- SUSAN LIMONCELLI, Plaintiff, V. DEFENDANTS' REQUEST FOR HEARING ON THEIR TOWN OF BARNSTABLE ZONING ) MOTION TO DISMISS BOARD OF APPEALS, AND ITS ) COUNT IV OF PLAINTIFF'S MEMBERS, GAIL NIGHTINGALE, RON S. AMENDED COMPLAINT. JANSSON, DANIEL M. CREEDON III, ) JAMES R. HATFIELD, SHEILA GEILER, ) JOHN NORMAN, JEREMY GILMORE, ) KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE, Defendants. ) --------------------------------------------------------- The Defendants above-named, pursuant to Superior Court Rule 9A, hereby request a hearing on the Defendants' Motion to Dismiss Count IV of Plaintiff's Amended Complaint and that this matter be heard on Thursday,July 15,2010, at 2:00.P.M., the same day as the hearing date scheduled by this Court on Defendants' Motion for Summary Judgment on Court IV of the Plaintiff's Amended Complaint. Dated: May 20, 2010. TOWN OF BARNSTABLE ZONING BOARD OF.APPEALS,AND ITS MEMBERS,ETC.,ET AL, & the TOWN OF BARNSTABLE, Defendants, By their Attorneys, r` RUTH J. WEIL, Town Attorney kuth.weilOtdwamstable.ma.us tB.B.O. No. �1'9285] [2008-00351rgsthrgonmotiondismisscountivofpamdcomplaint052010] 1 T. DAVID HOUGHTON, First Asst. Town Attorney david houghtonga town.barnstable.ma.us [B.B.O.No. 241160] CHARLES S. McLAUGHLIN, JR., Assistant Town Attorney charles mclaughlingtown.baimstable.ma.us [B.B.O. No. 336880] TOWN OF BARNSTABLE 367 Main Street,New Town Hall Hyannis, Ma. 02601-3907 508-862-4620; 508-862-4724 Fax TO: MICHAEL PRINCI, ESQ. [B.B.O.No. 406680] mprinci@nnnandnnn.com JENI A. LANDERS,ESQ. [B.B.O.No. 6699211 jlanders a wynnandMnn.com Attorneys for Plaintiff WYNN&WYNN, P.C. 300 Barnstable Road Hyannis,MA. 02601-2513 508-775-3665, 508-775-1244 Fax- CERTIFICATE OF SERVICE Barnstable, ss: May 20, 2010. I hereby certify under the pains and penalties of perjury that a true copy of the above document was mailed by first-class mailing,postage prepaid upon the Plaintiff s . attorneys on the above date. Claire Griffen, Leal , �gistant Town of Barnstable [2008-0035\rgsthrgonmotiondismisscountivofpamdcomplaint052010] 2 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BACV 2008-00105 --------------------------------------------------------- SUSAN LIMONCELLI, Plaintiff, V. DEFENDANTS' NOTICE OF MOTION TO DISMISS TOWN OF BARNSTABLE ZONING COUNT IV OF PLAINTIFF'S BOARD OF APPEALS, AND ITS AMENDED COMPLAINT. MEMBERS, GAIL NIGHTINGALE, RON S. JANSSON, DANIEL M. CREEDON III, ) JAMES R. HATFIELD, SHEILA GEILER, ) JOHN NORMAN, JEREMY GILMORE, ) KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE, Defendants. ) The Defendants above-named, pursuant to Superior Court Rule 9A, hereby give notice of the Defendants' Motion to Dismiss Count IV of Plaintiff's Amended Complaint and respectfully request an order dismissing Count IV of Plaintiff's Amended Complaint and that this matter be heard on the same day as the hearing date scheduled by this Court on Defendants' Motion for Summary Judgment on Court IV of the Plaintiff's Amended Complaint. Dated: May 20, 2010. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS,ETC., ET AL, & the TOWN OF BARNSTABLE, Defendants, By their Attorneys, r /RUTH J. WEIL,Town Attorney ruth.weil(a)townbarnstable.ma.us [B.B.O. No. 519285] .[2008-0035\notcmotiondismisscountivofpamdcomplaint052010] 1 r T. DAVID HOUGHTON, First Asst. Town Attorney david.houghton(cr�town.bamstable.ma.us [B.B.O. No. 241160] CHARLES S. McLAUGHLIN, JR., Assistant.Town Attorney charles.mclaughlin a,town.barnstable.ma.us [B.B.O.No. 336880] TOWN OF BARNSTABLE 367 Main Street,New Town Hall Hyannis, Ma. 02601-3907 508-862-4620; 508-862-4724 Fax TO: MICHAEL PRINCI,ESQ. [B.B.O.No. 406680] mprincignnnandnnn.com JENI A. LANDERS, ESQ. [B.B.O.No. 669921] jlanders cr,wyn.nandwymi.com Attorney for Plaintiff WYNN&WYNN, P.C. 300 Barnstable Road Hyannis,MA 02601-2513 508-775-3665, 508-775-1244 Fax CERTIFICATE OF SERVICE Barnstable, ss: May 20, 2010. I hereby certify under the pains and penalties of perjury that a true copy of the above document was mailed by first-class mailing, postage prepaid upon the Plaintiff's attorneys on the above date. C afire Griffen, I�eg sistant Town of Barns&ble [2008-0035\notcmotiondismisscountivof pamdcomplaint052010] 2 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BACV2008-105 --------------------------------------------------------- SUSAN LIMONCELLI, ) MOTION OF DEFENDANTS, Plaintiff, ) TOWN OF BARNSTABLE, FOR DISMISSAL OF COUNT V. ) IV OF PLAINTIFF'S AMENDED COMPLAINT. TOWN OF BARNSTABLE ZONING ) BOARD OF APPEALS, AND ITS ) MEMBERS, GAIL NIGHTINGALE, RON S. ) JANSSON, DANIEL M. CREEDON III, ) JAMES R. HATFIELD, SHEILA GEILER, ) JOHN NORMAN, JEREMY GILMORE, . ) KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE, ) Defendants. ) --------------------------------------------------------- NOW COME the Defendants, TOWN OF BARNSTABLE, and pursuant to.Mass. R. Civ. P, 12(b)(1), respectfully move this Court to dismiss Count IV of Plaintiff's Amended Complaint for lack of subject matter jurisdiction. As grounds therefor, Defendants state that. even if the alleged conduct of Town employees as set forth in Plaintiff.s Amended Complaint was true, said conduct falls squarely within several of the statutory exemptions under the Massachusetts Tort Claims Act, G.L. c. 258 §10.1 As such, Defendants.are immune from liability and Plaintiff has failed to invoke the jurisdiction of the Court. In further support, the Defendants rely on the accompanying Memorandum of Law. /While the Defendants dispute the allegations-in the Plaintiff's Complaint; for the purpose of this motion only, Defendants assert that even if the allegations were true,they fail to state a cognizable claim under the MTCA. [2008-0235\motd ism issctivfina1050710] 1 WHEREFORE, Defendants respectfully request that this Honorable Court enter a judgment of dismissal on Count IV of Plaintiff s Amended Complaint.- Dated: May 7, 2010. Respectfully submitted, TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, and its Members, and the TOWN OF BARNSTABLE, Defendants, By their Attorneys, R TH J. WEIL, Tp Attorney [B:B.O. No. 5192$ ] ruth.weil@town.barnstable.ma.us T.DAVID HOUGHTON, First Asst. Town Attorney [B.B.O. No. 241160] david.houghton@town.barnstable.ma.us CHARLES S. McLAUGHLIN, JR., Assistant Town Attorney [B.B.O..No. 336880] Charles.mclaughlin@town.bamstable.ma.us TOWN OF BARNSTABLE 367 Main Street,New Town Hall Hyannis, Ma. 02601-3907 5.08-862-4620; 508-862-4724 Fax TO: MICHAEL PRINCI, ESQ. [B.B.O. No. 406680] mprinci@wynnandwynn.com JENI LANDERS, ESQ. [B.B.O.No. 406680] j landers@wynnandwynn.coin Attorneys for Plaintiff WYNN & WYNN,P.C. 300 Barnstable Road Hyannis, MA 02601-2513 508-775-36655 508-775-1244 Fax [2008-0235\motd ism issctivfina1050710] 2 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE,.ss: SUPERIOR COURT C.A.No. BACV2008-105 --------------------------------------------------------- SUSAN LIMONCELLI, ) MEMORANDUM OF DEFENDANTS, TOWN OF Plaintiff, ) BARNSTABLE, TO DISMISS COUNT IV OF PLAINTIFF'S V. ) AMENDED COMPLAINT. TOWN OF BARNSTABLE ZONING ) BOARD OF APPEALS, AND ITS ) MEMBERS, GAIL NIGHTINGALE, RON S. ) JANSSON, DANIEL M. CREEDON III, ) JAMES R. HATFIELD, SHEILA GEILER, ) JOHN NORMAN, JEREMY GILMORE, ) KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE, ) Defendants. ) --------------------------------------------------------- I. INTRODUCTION. The Town has filed a Motion to Dismiss to dismiss Count IV of the above-captioned civil action, pursuant to Mass. R. Civ. P. 12(b)(1), on the grounds that the Court lacks subject matter jurisdiction of this Count. Specifically, Plaintiff's claim against the Defendants that they failed to properly enforce the Town's zoning ordinance or alternatively, did so selectively, does not present a cognizable claim under the Mass. Tort Claims Act. As is delineated more fully below, Defendants are entitled to the dismissal of Count IV for lack of jurisdiction. II. STATEMENT OF FACTS, STATEMENT OF CASE and RELATED PROCEEDINGS. Susan Limoncelli is the record owner of property located at 181 School Street Cotuit, MA, Assessor's Map 020, Parcel 090 (hereinafter"the Property") (Amd. Complaint,para. 2). The subject property at 181 School Street, Cotuit, Massachusetts, owned by Plaintiff, Susan [2008-0035\part-1-final-correctedrevmemdumdismissamdcomplaint050510) 1 i Limoncelli, is located in the Residence F (RF) Zoning District where single-family residential dwelling(detached) is the only principle permitted use. (Copy of Decision of the Zoning Board of Appeals, Appeal No. 2007-087, attached to Am Complaint as Exh. 0). Ms. Limoncelli is currently the owner of five other properties,two of which are located in the Town of Barnstable, the remainder in Connecticut. (Atchmt. 1, Deposition of Susan Limoncelli,Nov. 9, 2009,pp. 25-26). At the time Ms. Limoncelli purchased the subject property, she was the owner of three multi-family properties. (Atchmt. 1, Deposition of Susan Limoncelli, Nov. 9, 2009, pp. 25-26, 30-31, 33-34). Prior to her purchase of the subject locus, Ms. Limoncelli did not review the records of the Barnstable Building Department or the Zoning Board of Appeals. (Atchint. 2, Admissions 25-26 to Defendants' Requests for Admissions). Nor.did Ms. Limoncelli speak with anyone at the Building Dept. or the Zoning Board of Appeals. (Atchmt. 2, Admissions 27-28 to Defendants' Requests for Admissions). Ms. Limoncelli did not ask either her broker Agnes Chatelain or Kinlin Grover, the seller's broker, whether the accessory cottage structure was a legal rental unit. (Atchmt. 2, Admissions 23-24 to Defendants' Requests for Admissions).' On or about August 30, 2005, Ms. Limoncelli received a letter from Linda Edson regarding a potential zoning violation relating to the accessory cottage structure located the subject premises. .. (Amd. Complaint, Exh. I). in that letter;Ms..Limoncelli was given three options: to apply for a building permit to restore the property to one-family use; apply for the amnesty program which would permit a residential use of the accessory structure; or, prove that the premises were a legal two-family home. (Plaintiff's Amd. Complaint, Exh. I). On August 22,2007, Plaintiff,through her attorney, filed an appeal of the decision of the ' Agnes Chatelain,Limoncelli's broker,testified in her deposition that if Limoncelli wanted to rent the cottage,she'd have to do it on the"QT". (Atchmt. 5,p.41). [2008-0035\part-I-final-correctedrevmemdumdismissamdcomplaint050510J 2 Building Commissioner which held that the use of the accessory cottage as an independent rental unit did not constitute a legal pre-existing non-conforming use. (Decision of the ZBA, Amd. Complaint, Exh. 0). Nor was the use of the accessory structure as an independent rental unit protected from enforcement under M.G.L. c.40A, §7 according to the Building Commissioner. At the hearing held on January 9, 2008, the ZBA voted unanimously to uphold the decision of the Building Commissioner. (Decision of the ZBA, Amd. Complaint, Exh. 0). On February 11, 2008, following the decision of the Barnstable ZBA upholding the Building Commissioner's determination, Plaintiff filed a four-count complaint in Barnstable Superior Court, naming the Barnstable Zoning Board of Appeals and the Town of Barnstable as Defendants. On January 29, 2009, Ms. Limoncelli's Motion to Amend Complaint was granted. Three of the counts challenged the decision of the ZBA. Count IV of the Amended Complaint raises a claim under the Mass. Tort Claims Act as follows: COUNT IV - MASSACHUSETTS TORT CLAIMS ACT, M.G. L. C. 258 The Plaintiff alleges and avers in Paragraphs 1 through 113 of its Amended.Complaint, as follows: - 114.. On September 30, 2005 Plaintiffs then attorney, David Burgess, served the Town of Barnstable with notice of Plaintiffs claims against the Town,her notification of-dam- ages, and her request for relief. A copy of the notification letter is attached as Exh. Q. 115. The Town did not respond to this notice. 116. Pursuant to the Massachusetts Tort Claims Act, the Town is liable for the negligence of its employees, including contractors, acting in the scope of their employment. 117. Linda Edson, in her stated capacity as Zoning Enforcement Officer, was negligent in the effectuation of her duties. Ms. Edson declared that she knew the cottage apartment was in violation of zoning laws well prior to August 2005, and thus Ms. Edson had a duty to report this alleged violation to the Town, enforce the By-law, and notify the then owner, 'Mrs. Grover. 118. By her own admission during her telephone conversation with Plaintiff, Ms. Edson ignored the alleged violation because of a personal relationship with Mrs. Grover. [2008-0035\part-I-final-correctedrevmemdumd ism issamdcomp]aint050510] 3 I 119. Mr. Perry in his capacity as Building Commission was negligent in the effectuation of his duties. Mr. Perry acknowledged that he knew of the potential violation prior to the sale of the property and gave specific instructions (to Ms. Edson) not to enforce the zoning bylaws with then owner, Mrs. Grover. 120. Because of this negligence and selective enforcement by Ms. Edson--coupled with the negligence and selective enforcement of the Town Building Commissioner Perry vis-a-vis his policy and instruction to Ms. Edson, the alleged zoning violation only came to light after the Plaintiff purchased the property; the Plaintiff having believed it to contain two legal residential units, paying the value of a multifamily property, and relying on the future rental income. 121. Ms. Edson's negligence and selective enforcement, and the negligent supervision of Edson by her superiors have damaged the Plaintiff. 122. Plaintiffs damages are equivalent to the difference in value of a multifamily'and single- family dwelling, as well as rental income from and since the date of purchase into the future,and costs and fees associated with Plaintiffs defense of her right to use the cottage apartment. In answer to the Plaintiff's Complaint, the Town asserted a number of affirmative defenses, relating to Count IV of the Amended Complaint, to wit: failure to state a claim upon which relief can be granted (Second Affirmative Defense); lack of subject matter jurisdiction (Third Affirmative Defense); claim barred by doctrine of official immunity (Fourth Affirmative Defense); failure to make a proper presentment pursuant to M.G.L. c. 258 (Fifth Affirmative Defense). M.G.L. c. 258 does not apply to "claims based upon the`issuance, denial, suspension or revocation or failure or refusal to issue, deny,.suspend or revoke any permit, license,certificate, approval, order or similar authorization." (Seventeenth Affirmative Defense). In addition to the lawsuit filed against the Town,on August 29, 2008, Ms. Limoncelli filed a Complaint in the Barnstable Superior Court against the seller of the subject property and the seller's and buyer's brokers involved in the transaction. See Susan Limoncelli v. Ruthanne Grover, et al., bearing C.A.No. 2008-623 (Barnstable Superior Court) (Atchmt. 3, attested copy of Limoncelli v. Ruthanne Grover, et al). In the Complaint, which seeks damages for misrepresentation,breach of contract and violations of Chapter 93A, the Plaintiff asserts that [2008-0035\part-1-final-correctedrevmemdumdismissamdcomplaint05O5 10] 4 I "[t]he defendants, the sellers and brokers involved in that transaction, made material misrepresentations to Limoncelli about a cottage on the purchased property being a source of rental income. It was not until after the purchase that property Limoncelli was told by the Town of Barnstable that the cottage could not be rented and was in violation of the Town's zoning by- laws." (Atchmt. III, Complaint, ¶2). In granting broker Agnes Chatelain's Motion to Dismiss, on the basis that the Complaint was untimely filed,this Court opined that the Plaintiff, Susan Limoncelli "...had every opportunity to know the zoning status of the property prior the closing 8/11/05." (Atchmt. 4,Decision on Defendant Agnes Chatelain's Motion to Dismiss). III. ARGUMENT. A. Standard of Review. Motion to Dismiss Under Mass. R. Civ. P 12(b) (1). The waiver of sovereign immunity Against governmental entities, embodied under the Massachusetts Tort Claims Act (MTCA), is subject to a number of exceptions which are contained in M.G.L. c. 258, §10. The Defendants have moved to dismiss Count IV of Plaintiff's Amended Complaint for lack of subject matter jurisdiction on the grounds that the claim is barred under Section 10(c), (e), (f) and 0) of the MCTA. Subject matter jurisdiction is an issue to be determined solely by the court. Dennis v. Dennis, 337 Mass. 1, 4 (1958); Mark v. Kahn, 333 Mass. 517, 519 (1956). Parties cannot waive or confer jurisdiction where it does not exist. See Commonwealth v. DeJesus, 440 Mass. 147, 151, 795 N.E.2d 547 (2003). The lack of subject matter jurisdiction maybe raised for the first time on appeal or may even be raised by a court sua sponte. Vining v. Com. 63 Mass.,App. Ct. 690, 828 N.E. 2d 576, 828 N.E. 2d 576, 582 (2005). "A motion under Rule 12(b)(I challenges the court's jurisdiction over the subject [2008-0035\part-1-fin al-correctedrevmemdumdismissamdcomplaint050510] 5 I . i j J matter of the complaint. A Rule 12(b)(I) motion which is supported.by affidavits. or other materials contests the accuracy of the jurisdictional facts pleaded by the plaintiff. Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 711 (2004). The court may then consider affidavits, documents, and other materials outside the pleadings submitted by the parties in addressing the merits of the jurisdictional claim and resolving any factual disputes. Id.; Ginther v. Commissioner of Ins., 427 Mass.319, 322.& n.6 (1998). The Residents,of Massachusetts including the Alliance to Protect Nantucket Sound, Inc. v. Cape Wind Inc., Barnstable Superior Court bearing C.A. Nos BACV 2009-00107 and BACV 2009-00109." (Memorandum of Decision and Order dated February 18, 2010 at page 10). B. This Court Lacks Jurisdiction Over the Subject Matter of Count IV of Plaintiffs Complaint Because the Alleged Failure of the Town to Inspect,to Enforce the Zoning, to Issue a Building Permit or to Selectively Enforce the Zoning Ordinance are Not Cognizable Claims under the Massachusetts Tort Claims Act. 2. (1) Exceptions to the Waiver of Immunity under the Massachusetts Tort Claims Act. Following the ruling of the Supreme Judicial Court in Jean W. v. Commonwealth, 414 Mass. 496, 499, 610 N.E.2d 305 (1993), where the Court announced its intention,to abolish the governmental immunity created under the common law public duty rule unless the Legislature took action, the Legislature through chapter 4.95 of the Acts of 1993, added to the exceptions within Section 10 of the Massachusetts Tort Claims Act(MTCA). Specifically,the amendments, found under G.L. c. 258,.§10, established"what in effect is a statutory public duty rule, providing governmental immunity." Carleton v. Framingham, 418 Mass. 623, 627, 640 N.E. 2d 452 (1994). . Said amendments added a number of areas where the provisions of the Act no longer applied. Z/The Defendants have also separately moved for summary judgment asserting an inadequate presentment under G.L. c.258 §4:Where a presentment letter states an alleged claim which is not cognizable under the Massachusetts Tort Claims Act,it is deemed defective. Tambolleo v. Town of West Boylston, 34 Mass.App. Ct. 526, 532-33.(1993). [2008-0035\part-I-final-correctedrevmemdumdismissamdcomplaint0505101 6 Relevant to the Plaintiff's claims are the following exceptions contained in Section 10: . (c) any claim arising out of an intentional tort, including assault, battery, false imprisonment, false arrest, intentional mental distress, malicious prosecution, malicious abuse of process, libel, slander, misrepresentation, deceit, invasion of privacy, interference with advantageous relations or interference with contractual relations; ... (e) any claim based upon the issuance, denial, suspension or revocation or failure or,refusal to. issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization; (f) any claim based upon the failure to*inspect, or an inadequate or negligent inspection, of any property,real or personal, to determine whether the property complies with or violates any law, regulation, ordinance or code, or contains a hazard to health or safety, except as otherwise provided in clause (1) of subparagraph 0); .:. (j) any claim•based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer. This exclusion shall not apply to: (1) any claim based upon explicit and specific assurances of safety or assistance, beyond general representations that investigation or assistance will be or has been undertaken, made to the direct victim or a member of his family or household by a public employee, provided that the injury resulted in part from reliance on those assurances. A permit, certificate or report of findings of an investigation or inspection shall not constitute such assurances of safety or assistance; and (2) any claim based upon the intervention of a public employee which causes injury to the victim or places the victim in a worse position than he was in before the intervention; and (3) any claim based on negligent maintenance of public property; and (3) any claim by or on behalf of a patient for negligent medical or other therapeutic treatment received by the patient from a public employee. The various subsections of§10 enumerate independent bases for immunity from suit. "The immunities provided by §10 operate in the alternative; even if one immunity contains an exception that would permit a claim to be brought, that claim is barred if any of the other immunities apply." Brum v. Dartmouth, 428 Mass. 684, 697, 704 N.E.2d 1147 (1999);Ariel v. Town of Kingston. 69 Mass. App. Ct. 290, 294, 867 N.E.2d 367, 371 (2007);McCarthy v. City of Waltham, 76 Mass. [2008-0035\part-l-fin a]-correctedrevmemdumdismissamdcomplaint050510] 7 f App .Ct. 554, 560, 924 N.E.2d 316, 321 (2010) (overturning a jury verdict where the trial court failed to recognize that immunities under §10 have alternative effect). It is clear the above allegations fall squarely within several of the delineated exceptions, and therefore, defendants are entitled to judgment as a matter of law. See Kyte v. Philip Morris Inc., 408 Mass. 162,.166,556 N.E.2d 1025 (1999). (2) Under Section 10(e) of the Massachusetts Tort Claims Act,This Court Lacks Jurisdiction over Plaintiffs Claim against the Town of Barnstable, "...based upon the issuance,denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit,license, certificate, approval, order or similar authorization." The gravamen of the Plaintiff s allegations is that the.Town,through the Town Building Commissioner Thomas Perry and Linda Edson failed to take action to revoke the purported approval of the accessory cottage structure as a separate dwelling unit prior to Plaintiffs purchase, "selectively enforced"the zoning ordinance by refusing to grant Plaintiff a building permit to allow her to use the accessory cottage and that as a result of the failure to revoke, inspect and/or issue a building permit to her, Plaintiff suffered harm. 3 The underpinnings of Sections 10(e)and 10(f) can be traced back to Dinsky v. Framingham, 386 Mass. 801, 438 N.E.2d 51 (1982) wherein the Supreme Judicial Court created the "public duty rule"which limited the scope of governmental liability to those circumstances where the injured person seeking recovery could show that the duty breached was a duty owed to the individual himself or herself, and not merely to.the public at large. Specifically, in Dinsky the subject of municipal liability for the actions and inactions of a building inspector were expressly and clearly resolved in the negative. The Dinsky case involved property owners who had purchased a home from a builder who had obtained a building permit 3/While the Defendants dispute the allegations in the Plaintiff s Complaint,for the purpose of this motion only, Defendants assert that even if the allegations were true,they fail to state a cognizable claim under the MICA. [2008'-0035\part-1-final-correctedrevmemdumdismissamdcomplaint05O510] $ i and occupancy permit issued by Framingham's building inspector. The allegations suggested that improper grading of the property led to flooding and foundation failure and that the building inspector was negligent in issuing the subject permits,thereby contributing to the damage. At the time, Dinsky was a case of first impression under the MTCA. The Supreme Judicial Court noted at the outset that"[T]here must be shown to exist some obligation or duty towards the plaintiff, which the defendant has left undischarged or unfulfilled." 386 Mass. at 804, citations omitted. Thereafter,Justice Nolan addressed the question of whether, building codes (and the actions of the building inspector in administering them) created any special duty to private individuals,the violation of which would create liability for the municipality. Justice Nolan noted that, "The traditional rule,that a building code is enacted for the benefit of the public and therefore its violation does not give rise to a private right of action, continues to be followed by a majority of States that have considered the question." 386 Mass. at 805. By finding that, "There does not appear to be any language in the enactments which would warrant a finding that the Legislature intended to create private causes of action for property owners on the facts of this case" 386 Mass. at 809; the Court concluded that, "there is nothing in either the General Laws or in the State,Building Code which shows a legislative intent to impose liability on a municipality to individual property owners for the negligent issuance of building permits or the nonenforcement of the State'Building Code." 386 Mass. at 809-810. (Emphasis supplied). Thus, the Court concluded, at page 8.10, In the absence of a special duty owed to the plaintiffs, different from that owed to the public at large, no cause of action for negligent inspection can be maintained. To hold otherwise would cause a municipality to become substantially an insurer of each and every construction project. The tremendous exposure to liability that could result from such a decision would likely dissuade municipalities from enacting regulations designed for the protection and welfare of the public. 9 [2008-0035\part-I-fina]-correctedrevmemdumdismissamdcomplaint050510] i In subsequent cases, even those involving injuries resulting in death from the alleged failure of the building inspector to perform his enforcement duties, courts have found that the "public duty rule"prevents recovery against a governmental entity. In Ribeiro v. Granby, 395 Mass. 608, 481 N.E.2d 466 (1985), the Supreme Judicial Court held that a municipality was not liable for the failure of a building inspector and members of the town's board of health to require installation of a second means of egress. In that,case, the building owner was cited repeatedly for a variety of health and safety violations, including the lack of a second means of egress. Other than issuing citations, no steps were taken to enforce the required egress provisions of the state building code. Relying on Dinsky, the Court concluded that the Town was not liable to the family of a second-floor tenant who died in a subsequent fire, because notwithstanding provisions in the state building code,the.Town had no special duty to ensure the tenant's safety. Particularly germane to the present case,the Court also noted that the owners and occupants could have taken steps to rectify or to avoid the danger themselves.. 395 Mass. at 612. Similarly,the Appeals Court in Zocchi V. Town of Hinsdale, 30 Mass. App. Ct. 803, 573 N.E. 2d 1017 (1991), rejected the Plaintiffs' claim that their contractor's reliance on the building inspector's erroneous advice that their lot was buildable,gave rise to a"special duty of care" owed to them. The Court noted"the plaintiffs in the present case were in a position reasonably to protect themselves from the threatened harm. The ability to protect oneself is an important factor in determining whether one is owed a special duty of care." 573 N.E. 2d at 1019. Clearly, as was. noted by the Barnstable Superior Court in the related case of Limoncelli v. Grover, supra, Attachment 3, the zoning status of the property was discoverable by Ms. Limoncelli prior to her purchase of the property. Plaintiff was clearly in a position to protect herself by, for example; making a simple inquiry with the Building Department, prior to the purchase of the property, as to . [2008-0035\part-I-final-correctedrevmemdumdismissamdcomplaint0505101 10 whether or not there was a certificate of occupancy for the accessory cottage structure. Following the codification of Dinsky under Section 10(e), 10(f) and 100), courts continue to rely on the Dinsky analysis regarding the applicability of the public duty rule as it relates to governmental license issuance, approvals, inspections and enforcement. In Smith v. Registrar of Motor Vehicles, 66 Mass. App. Ct. 31, 32-33 (2006),the Appeals Court carefully analyzed the language in Section 10(e) and concluded"[t]he language of§10(e) cuts a broad swath, exempting from recovery "any claim" in a variety of named circumstances. .... The phrase"based upon," when accorded its plain and ordinary meaning,.refers to any claim that is rooted in or"uses as a basis for" its applicability any of the covered types of activities or events. See Webster's Third New International Dictionary 180 (1993). If the gravamen of a plaintiff s complaint can be traced back to any one or more of the types of events or activities delineated in §10(e),then the action is barred." 66 Mass. App. Ct. at 33. (Cites omitted). Clearly,the gravamen of Plaintiff s amended complaint can be traced back to a claim based upon"...the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit,.lice rise, certificate, approval, order or similar authorization" and, therefore, is barred under Section 10(e). See also, Tivnan v. Registrar of Motor Vehicles, 50 Mass. App. Ct. 96, 734 N.E. 2d 1182 (2000). In Kohler v. Town of Barnstable, 76 Mass. App. Ct. 1113, 921,N.E. 2d 566,2010 WL 520195, 1 (Mass. App. Ct. 2010), a case with similarities to the case at bar,the Appeals Court upheld the Barnstable Superior Court's.dismissal of the Plaintiff's Complaint filed against the Town of Barnstable under the MTCA for the alleged failure of the Barnstable Building Commissioner to enforce the zoning ordinance,holding; inter alia, that"the plaintiffs' attempt to, `characterize the action as a`garden variety tort action' avails them little even if they are correct. [2008-0035\part-I-final-correctedrevmemdumdismissamdcomplaint0505101 11 I t See Dinsky v. Framingham, 386 Mass. 801, 810 (1982) (no cause of action against building inspector for negligent inspection absent a special duty to the plaintiff distinct from that owed to . the public at large)." In Leathim v. Donell, WL 1251390(Mass. Superior Court 1996),the Plaintiffs, prior to closing on their home, had it inspected by the Town of Wilmington's building inspector and fire inspector, who, on the basis of the inspection, issued an occupancy permit for the premises. When serious problems ensued, including water leaks and peeling paint,the Plaintiffs sued the Town alleging that they were entitled to damages.based on the faulty inspections by Town employees, upon which they relied in the purchase of their home. The Court rejected the claim, holding that the decision came squarely within the Sections 10(e) and 10(f) of the MTCA. See also,Perotti- Cyrus v.Jenson, 2008 WL 1712319 (D. Mass., 2008) (Under Section 10(e), the MTCA does not apply to the Town's failure to issue a building permit). (3) Under Section 10(f) of the Massachusetts Tort Claims Act,This Court Lacks Jurisdiction over Plaintiffs Claim against the Town of Barnstable, "...based upon the failure to inspect, or an inadequate or negligent inspection, of any property, real or personal,to determine whether the property complies with or violates any law, regulation, ordinance or code, or contains a hazard to health or safety, except as otherwise provided in clause (1) of subparagraph (j). Section 10(0, as cited above, also represents the codification of the Dinsky"public duty rule" exception and its progeny. By its terms,this section exempts from coverage under the MTCA, negligence claims against a governmental entity based upon the failure to inspect, negligent inspection or to the failure to determine whether a property.violates any law regulation or ordinance. Where, as here,the allegations concerning the actions of the government actor .responsible.for performing inspections and enforcement functions contains elements of both Sections 10(e) and 10(f), courts have found that both exemptions apply. See, e.g.,Leathim v. - Donell, supra. [2008-0035\part-I-final-correctedrevmemdumdismissamdcomplaint0505101 12 I The intended breadth and scope of the Section 10(0 exemption was discussed by the Supreme Judicial Court in Barnes v. Metropolitan Housing.Assistance Program, 425 Mass. 79, 82-83, 679 N.E. 2d 545, 547-548 (1997). Barnes was filed by recipients of federal housing subsidies against a state housing assistance program for its failure to perform an adequate lead- based paint inspection resulting in serious personal injury to a child from lead poisoning. In finding that the inspection activities of the state entity were exempted from coverage under 10(f) of the MTCA,the Court opined that it was the intent of the Legislature to narrow the scope of liability of government actors for their inspection functions. The Court further noted that is was the intent of the Legislature to overturn the effect of Ayala v. Boston Hous. Auth., 404 Mass. 689, 536 N.E. 2d 1082 (1989), which found the housing authority liable under both tort and contract for inadequate inspections. In Campbell v. Boston Housing Authority, 443 Mass. 574, 585-586, 823 N.E. 2d 363, 371- 372 (2005), a case also involving allegations relating to liability for inadequate inspection for lead- based paint,the Supreme Judicial Court set a high bar as to what constitutes the kind.of"explicit and specific assurances of safety or assistance" contemplated under G.L. c. 258, §100)(1). .Relying on Lawrence v. Cambridge, 422 Mass. 406, 410, 664 N.E.2d (1996),the Court dismissed the claim under the MTCA,holding that the assurances must be explicit, not implied, and that the. term "specific" means "the terms of the assurance must be definite, fixed, and free from ambiguity." 443 Mass at 586. See also,L'oguidice v. Town of Hanson Zoning Board of Appeals, 53 Mass. App. Ct. 1117, 762 N.E. 2d 919 (2002) (unpublished opinion), (town immune from liability under the MTCA, rejecting the Plaintiff's allegations that her reliance on Planning Board's negligent endorsement of a plan containing two lots and the building commissioner's negligent issuance of a building permit on the adjoining lot gave rise to tort liability). [2008-0035\part-I-final-correctedrevmemdumd ism issamdcomplaint050510) 13 I , "The MTCA waives the Commonwealth's sovereign immunity and permits a plaintiff to recover from a public employer under certain circumstances. The Legislature has,however,for reasons of public policy, chosen to preserve sovereign immunity for certain claims, irrespective of their legal sufficiency or merit, or the gravity of the injuries alleged. See Carleton v. Framing- ham, 418 Mass. 623, 627, 640 N.E.2d 452 (1994);Brum v. Dartmouth, 428 Mass. 684, 695, 704 N.E. 2d 1147 (1999); Kent v. Commonwealth, 437 Mass. 312, 318, 771,N.E. 2d 770 (2002); G.L. c. 258, §10(a)-O)." Smith v. Registrar of Motor Vehicle, supra, 66 Mass. App. Ct. at 32-33. Under the plain and unambiguous language of Sections 10(e) and (f), Plaintiff's claim is clearly not cognizable under the MTCA. Further, the cases cited above, stand for the proposition that the ability to protect oneself is an important factor in determining whether one is owed a special duty of care. See Ribiero, supra and Zocchi, supra. Ignoring the language of Sections 10(e) and (0, as well as Dinksy and its progeny,the Plaintiff is asserting the untenable position that the Town is the ultimate guarantor for every property sold within the Town, completely relieving a purchaser from any obligation to undertake the necessary steps to do any meaningful investigation. By Plaintiff's own admission, although she was aware that the property was zoned for single-family residences only, she never looked at the files of the Zoning Board of Appeals or the Building Department prior to purchasing the property. She never spoke with anyone in the Building Department to ascertain whether the accessory structure.had an occupancy permit or was a legal rental unit. The only contact she admits having with the Town was her search of the Assessors records online, where she, on her own, interpreted a code which used the term "multihouse"to mean that the accessory structure could be rented as a separate unit. However;the Plaintiff concedes that she never confirmed her interpretation.of that record with anyone in the Assessors Office. (Attachment 1,Depos. of Susan Limoncelli pages 67, 70-71). Plaintiff sought a [2008-0035\part-I-final-correctedrevmemdumdismissamdcomplaint050510] 14' I no legal opinion about the zoning and did not consult with the lawyer who handled the closing on the issue of the legality of the accessory structure. (Attachment 1. Depos of Susan Limoncelli p. 66). ' The proposition that the alleged inactions of the both Building Commissioner and Ms. Edson(even if true), do not rise to the level of a tortious wrong that the Commonwealth recognizes. No.special duty was created. No duty was owed. No duty was broken. No cause of action is stated. (4) Under Section 100) of the Massachusetts Tort Claims Act,This Court Lacks Jurisdiction over Plaintiffs Claim against the Town of Barnstable based upon "an act or failure to act to prevent or diminish the harmful consequences of a condition or. situation, including the violent or tortious conduct of a third person,which is not originally caused by the public employer or any other person acting on behalf of the ' public employer." The purpose of the §100) exemption is to provide a"substantial measure" of immunity from liability to public employers. See Brum v. Town of Dartmouth, supra, 428 Mass at 694-95 & n. 10. A public employer is not liable for failing to prevent or diminish harm not caused by the public employer. Brum at 69. .(Town found immune in a negligence suit for failure to maintain adequate security in a school, where the plaintiff was killed in the school by three armed individuals despite failure to provide security after warning); see Kent v. Commonwealth, 437 Mass. 312, 318-319, 771 N.E. 2d 770 (2002) (claim alleging failure to act byre-establishing P p y parole over third-party barred; claim alleging affirmative act of paroling third-party also barred because too remote in time). Under Section 100), a municipality is immune from suit for-all harmful consequences arising from its failure to act to prevent the violent or tortious conduct of a third person, unless it "originally caused" the "condition or situation" that resulted in the harmful consequence. Brum at 695;Brum v.' Town of Dartmouth, 428 Mass. 684, 687 (1999). The Court found that the school [2008-0035\part-l-final-correctedrevmemdumdismissamdcomplaint0505101 15 . I and school officials did not "originally cause" the dangerous condition, but rather failed to prevent the killing. See id. at 692-93. The court refused to adopt the theory that neglect or failure to prevent amounted to "originally caused" the ".condition[s] or situation[s]" that resulted in the plaintiffs death. Id. at 692. Adopting such a broad interpretation of the statutory language would eliminate the statute's purpose of allowing immunity for public employers. See id at 693. . This point is illustrated in Jacome v. Commonwealth, 56 Mass. App. Ct. 486, 489 (2002), where the plaintiff drowned on a public beach when he was swept under water by a riptide. Id at 488.. Although at the time of the drowning the beach was posted with"lifeguard on duty" signs, in fact, there were no life guards manning the beach. The Appeals Court determined that section . 100) protected the state from liability reasoning that the water currents that caused the drowning were not created by the governmental entity. Id. at 490; See also,McCarthy v. City of Waltham, supra, 76 Mass. App. Ct. 554, 5.61 ("there can be no serious question that the original cause of harm in [the decedent] taking his own.life was his suicidal frame of mind;any other cause for which the city might be perceived as a responsible actor would like have been too remote or too passive.") In the instant case, to the extent that any entity other than the Plaintiff is responsible for her purchase of the property without knowing its zoning status,4 Plaintiff asserts in her separate lawsuit involving the purchase of the subject locus, Susan Limoncelli v. Ruthanne Grover, et al., bearing C.A.No. 2008-623 (Barnstable Superior Court) that"[t]he defendants, the sellers and brokers involved in that transaction, made material misrepresentations to Limoncelli about•a cottage on the purchased property being a source of rental income. It was not until after the 4 In Susan Limoncelli v. Ruthanne Grover, et al., bearing C.A. No. 2008-623 (Attachment 4, Barnstable Superior Court)the Court held that the Plaintiff, Susan Limocelli "...had every opportunity to know the zoning status of the property prior the closing 8/11./05." [2008-0035\part-1-final-correctedrevmemdumdismissamdcomplaint050510] 16 -y purchase of that Limoncelli was told by the Town of Barnstable that the cottage could not be rented and was in violation of the Town'.s zoning by-laws." The essence of the Plaintiff's allegations against the Town are that it had an affirmative-duty to intervene prior to the sale of the property to prevent the alleged harm created by the tortious misrepresentations made to her by the seller and brokers. Besides clearly owing no special duty to Ms. Limoncelli, as discussed above, Section 100)provides immunity from liability from suit arising from a failure to act to prevent the harmful consequences of the actions of third parties. This Court lacks jurisdiction of the subject matter of Count IV of Plaintiff s Complaint and it should be dismissed. (4) Under Section 10(c) of the Massachusetts Tort Claims Act,This Court Lacks Jurisdiction over Plaintiffs Claim against the Town of Barnstable based upon "...any claim arising out of an intentional tort..." As noted above, under Section 10(c), municipalities are not liable for"any claim arising out of an intentional tort." See Swansea Development Corp. v. City of Taunton, 423 Mass.390, 669 N.E. 2d 333 (1996). The allegations in Plaintiff's Amended Complaint which form the basis of Count IV under the MTCA assert.that the intentional acts and inaction of the Building .Commissioner and Linda Edson caused her alleged injury. Specifically, Plaintiff alleges as follows: 64. Both Perry and Edson knew of a potential violation and intentionally ignored it until after the property was conveyed. (Emphasis supplied). 65. The Town's intentional inaction benefitted Grover in,the sale of the Property and burdened the Plaintiff with a potential zoning violation after she had paid full value for the property based upon it being a fully legal multifamily property recognized by the Town. (Emphasis supplied). To the extent that Count IV of the Plaintiff s Complaint alleges intentional actions by the Building Commissioner and Linda Edson, which are the basis of the purported tortious conduct, it is subject to dismissal under Section 10(c). See Connerty v. Metropolitan District Comm'n, 39.8 Mass. 140, 495 N.E. 2d 840 (1986);Sadlowski v. Planning Bd..of Leominster, 51 Mass. App. Ct. 1110, 747 [2008-0035\part-I-final-correctedrevmemdumdisrnissarndcornplaint050510] 17 I N.E. 2d 758,.2001 WL 568535, 1 (2001). Connerty v. Metropolitan District Comm'n, 398 Mass. 140, 495 N.E. 2d 840 (1986). IV. CONCLUSION. There is probably no position in any municipality that deals with more decisions on a daily basis than that of the Building Inspector. For example,,Barnstable has a year-round population of almost 50,000 residents and has about 31,000 separate structures within its borders. Even in an economic downturn,,the number of decisions solicited and reached by the Barnstable inspectors annually is incalculable, with many of these decisions having profound economic and often personal consequences for applicants, abutters, and the public generally. If the Town was sued on even a tiny fraction of the decisions, actions,.and inactions of its building staff alone, and was forced to undertake the efforts and expenses incurred in this very case, Barnstable would be out of business in short order. It is for these reasons that the Legislature actually expanded the immunity given to government entities in relation to inspections, enforcement and issuance of permits. See Barnes, supra. The Plaintiff in this case was a sophisticated real estate investor who has adopted an implausible `hear no evil, see no evil' approach to}the acquisition of the subject property.. See generally,Feldman v. Souza, 27 Mass. App .Ct. 1142, 1144, 538 N.E.2d 64 (1989). An investigation of the legality of the accessory structure as an independent rental unit was hardly a herculean task. The Plaintiff was clearly in a position to protect herself. Riberio, supra. The Town owned no special duty to the Plaintiff. The various subsections of§10 enumerate independent bases for immunity from suit. McCarthy v. City of Waltham,supra. The allegations contained in Plaintiff's Complaint fall squarely within several of the delineated exceptions, and therefore, defendants are entitled to judgment as a matter of law. [2008-0035\part-I-final-correctedrevmemdumdismissamdcomplaint050510] 18 Dated: May 7, 2010. Respectfully submitted, TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, and its Members, and the TOWN OF�ARNSTABLE, Defendants,.... By their'A meys, IIkUTH J. WEIL, Town Attorney [B.B.O. No. 519285] ruth.weil@town.bamstable.ma.us T. DAVID HOUGHTON; First Asst. Town Attorney [B.B.O. No. 241160] david.houghton@town.barnstable.ma.us CHARLES S. McLAUGHLIN, JR., Assistant Town Attorney [B.B.O. No. 336880] charles.mclaughlin@town.bamstable.ma.us TOWN OF BARNSTABLE 367 Main Street,New Town Hall Hyannis, Ma. 02601-3907 508-8624620; 508-862-4724 Fax TO:. MICHAEL PRINCI, ESQ. [B.B.O.No. 406680] mprinci@wynnandwynn.com JENI LANDERS, ESQ. [B.B.O. No. 406680] jlanders@wynnandwynn.com Attorneys for Plaintiff WYNN &WYNN, P.C. 300 Barnstable Road Hyannis, MA 02601-2513 508-775-3665, 508-775-1244 Fax CERTIFICATE OF SERVICE Barnstable, ss: May 7, 2010. I hereby certify under the pains and penalties of perjury, that I caused to be hand-delivered a copy of the above document to the attorneys of repyrd for the above-named plaintiffs th� e date written above. Ruth J. Weil, Town Attorney Town of Barnstable [2008-0035\part-I-final-correctedrevmemdumdismissamdcomplaint050510] 19 I . i F j � J �S I AT M . 124 l 1 - SUPERIOR COURT COMMONWEALTH OF MASSACHUSETTS BARNSTABLE DIVISION - - - - - - - - - - - - - - - - - - x SUSAN LIMONCELLI , Plaintiff, VS . No . 2008-0623 TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, and its .MEMBERS, Defendants . DEPOSITION OF SUSAN LIMONCELLI -Deposition of SUSAN LIMONCELLI , taken on behalf of the Defendants ,_ .pursuant to Notice and the Massachusetts Rules of Civil Procedure, before Diane Kelly, a Notary Public,. duly qualified within and for the Commonwealth of Massachusetts , at 367 Main. Street , Hyannis Massachusetts ,, on November 10 , 2009, - commencing at 9 15 a.. m. a DIANE KELLY COURT REPORTING SERVICES P . O. Box, 167 CENTERVILLE, MA 02632 DIANE KELLY COURT REPORTING SERVICES (508) 771-8222 1 25 1 Q Do you know when h'e was .divorced? 2 A 2003/2004 time frame . 3 Q Does he have any children? 4 A He .does . 5 Q Can you give me their names , please. 6 A Lisa Stzurma, which is , S-t-z-u-r-m-a, . and 7 Amy Russo . 8 Q And how old are they, please, approximately? 9 A Thirty-nine and thirty-three . 10 Q Prior to your purchase of the 181 School 11 Street property, which I ' ll call- the subject premisesr 12 so that I. don ' t have to repeat the address every 13 time, did you own any property, either having. a real . 14 or equitable -interest in that property? 15 A Yes . 16 Q Could you list - the properties that you ' ve 17` owned. 18 A Yes . 16 Division Street , Greenwich, 19 Connecticut.; 79 Strickland Road, Cos, Cob, 20 Connecticut; 56 Orchard Place, Greenwich, 21 Connecticut ; 207 Main- Street, Cotuit , Massachusetts 22 Q Do you own any other property on Cape Cod? 23 A Yes 321 Tower Hill Road in Osterville . 24 Q Do you own any other property. in Connecticut DIANE KELLY COURT REPORTING SERVICES (508) -771 82 22 26 1 currently? 2 A 2 North Street, Richfield, Connecticut . . 3 Q And that is the sum total of the property 4 you own? 5 A Plus. the subject property. 6 Q Thank you . And are any of those properties . 7; that you ' ve listed multi-family? 8 A Yes, the 16 Division Street . 9 Q Let my start with that if. .we can . 10 MS WEIL' Would you mark this as the 11 next exhibit 12 ( Deposition Exhibit Nos . 3 and 4 : 13 Marked for. Identification . ) 14 15 BY MS . WEIL : 16 Q Turning your., attention to Exhibits 3 and 4 ,` 17 do you still own the property at 16 Division Street? 18 A I do . 19 Q How many' rental units are there? 20 A Two . 21 Q And what . is the monthly rental you receive 22 from that property? 23 A Approximately four thousand dollars a month . 24 . Q Now, turning your attention to Exhibit 4 , - DIANE KELLY COURT REPORTING SERVICES (508) 771-8222 30 1 Q Just going back briefly. to 16 Division 2 Street , did you get == did you apply for .a mortgage 3 for that property? 4 A Yes . 5 Q Did you fill out a mortgage-application? . 6 A I don ' t recall . I would assume . that I did. 7 Q Did you list it as a. multi-family property 8 in your mortgage application? g A 'I do not - recall . 10 MS . WEIL : Here is both the property ' 11 record and deed. for - the Orchard Street,. property : 12 (handing) .. 13 MS . LANDERS * You.' re going to mark 14 those? 15 MS . WEIL Yes , please . 16 ( Deposition Exhibit Nos . 5. and 6 : ` 17 Marked for Identification . ) 18 ( Discussion off the record. ) 19 20 BY MS ., WEIL : 21 Q Do you currently, own the 56 Orchard Place .. 22 property?. . 23 A I do not : 24 Q When did you sell it? -8222. DIANE KELLY COURT REPORTING SERVICES (508) 771 ` . 31 1 A I sold it in, I believe, 2006 . 2 Q And is that a multi-family rental property? 3 A It was when I owned . it . 4 Q Did you purchase it as a multi-family? 5 A Yes 6 Q How many rental units were there? 7 A Two . 8 Q Do you recall what the monthly rental you 9 were obtaining - 10 A It was approximately four thousand a month . 11 Q And why did you sell its 12 A Why did .I sell it? 'The - someone who owned 13 the property next door made an offer. to me, to buy 14 it: 15 Q And how, much d.id you sell it for? 16 A I sold it fora million four twenty-five , I 17 believe . 18 Q And you .initially purchased it in 2004 for 19 five hundred twenty thousand; is that correct? 20 A , I don ' t think that I purchased it in 2004 - 21 Q Maybe I ' m misreading that . 22. " Do you recall the date when you 23 purchased it? ' 24 A (No response) DIANE KELLY COURT REPORTING ' SERVICES (508) 771-8222 33 1 Q The property- record card that we obtained 2 . from . Greenwich showed this , I guess . 3 A Right , that ' s the current property - 4 Q Right . Oh, that ' s the current property -- 5 A -- that ' s the current. building on the . 6 property -- 7 Q I see . 8 A -- it ' s not the building on the property 9 when I bought it . 10 Q When you bought and owned it? 11 A And owned it,. right 12 Q So it was a one point .four million dollar 13 knock-down? 14 A Yes . 15 (Discussion off the record.) 16 ( Deposition Exhibit Nos 7 and 8 17 Marked for Identification . ) 18 19 BY MS . WEIL: 20 Q Now, turning your attention to the 21 Strickland property, which. you mentioned previously, 22 do you- still own the Strickland property? 23 A (Witness referring to documents ) Yes . 24 Q And is it currently rented? 4 DIANE KELLY COURT REPORTING SERVICES (508) 771-8222 34 1 A Yes 2 Q And how many units are in that 'property? 3 A Two . 4 Q And what is your rental income monthly? 5 A About forty.-two hundred a month . 6 Q And when did you acquire this property? 7 A In 2003 . 8 Q And at that time, did you have a realtor? 9 A I did . 10 Q And were you trying .to purchase 11 income-producing multi.-family property at the time? 12 A That ' s what I purchased . 13 Q Were you looking for multi-family 14 income-producing property? 15 A I was looking at, a mix of properties 16 Q As investment property? 17 A Yes . 18 Q And what research did you do in terms of the 19 zoning prior to purchasing this property? 20 A None.. 21 Q Turning your attention to Exhibit 7 , the 22 property records card, again, above the photo of the 23 proper ty, _ does it indicate that this pro erty is a _ - . 24 multi-family? . (508) 771-8222 DIANE KELLY COURT REP ORTING SERVICES 66 l 1 did . 2 Q Turning your attention to Exhibit 12 , I note 3 under paragraph seven, you indicated that there was 4 certain inspections that would have to take place 5 prior to closing; is that correct? 6 A (Witnes& referring to document ) . 7 Is there a question? 8 Q Yes . Is that correct, that paragraph seven 9 indicates certain inspections that need` to. take 10 place -- 11 A Paragraph seven refers to addenda for home, 12 pest and lead inspection: 13 I don ' t know if they were to take 14 place after or if they had already taken place . It 15 doesn ' t really clarify that in this document . 16 Q Did you request that be inserted. into. this 17 document? 18 A N-o, not that I recall . 19 Q Did you consult with a lawyer prior signing 20 this offer to purchase? 21 A No . 22 Q Who did you consult with prior, to signing 23 its 24 A I consulted with my -- with Albert Russo ,and _ c t DIANE KELLY COURT REPORTING SERVICES (508) 771-8222 � s 70 1 THE WITNESS : (Witness referring to 2 document ) . 3 BY MS . 'WEIL : 4 Q Could you review, this document, :and tell me 5 what information you can glean about the property by 6 looking at this document . 7 A You want me to read the information that is 8 review the document? 9 Q You previously testified that one of the 10 main things that you do in terms of your du.e 11 diligence' before you purchase property, which you ' ve 12 done a lot of, was _to review assessor ' s records . 13 Would you pleas.e look at this document and tell me 14 what information you glean by. looking at this 4 15 document N .16 A (Witness referring to document) . Okay . F 17 - MS . LANDER.S : Objection . ;r 18 THE WITNESS : I can read the document, 19 so =- I can read what ' s on (indicating) ,-this 20 document . Would you like for me to do that? 21 BY MS . WEIL : 22 4 Sure.. 23 A ,, It Says, owner, " with "Ruthanne Grover, " .a 24 map, parcel, ` parcel extension, mailing address , P . O. DIANE KELLY COURT REPORTING SERVICES ; { (508) 7.71-8222 ' s � 71 1 Box 262 , Cotuit , _Massachusetts ; a section that has 2 assessed values , building value, extra features 3 outbuildings , and land value -- do you want for me to 4 continue? 5 Q In terms of the outbu-ildings , what is the 6 value listed for outbuilding? 7 A It. says : "Appraised value, one thousand 8 dollars . Assessed value,. one thousand dollars . 9 Q Is there anything on this document, 10 Exhibit 13 , that leads you, to believe that the 11 cottage located at 181 School rStreet is a legal 12 rental apartment? ' 13 MS . LANDERS : Objection : 14 THE WITNESS : I. don ' t see anything that 15 has that type of terminology on this document . - 16 BY MS . WEIL : gj 17 Q Did you speak with a.nybody, in the assessor ' s 18 office prior to the purchase of the subject property? 19 A Not that I recall . j 20 Q Did you look at any other town records, " > 21 aside from the, assessor ' s records . on-line, prior . to 22 the purchase of the property? j . 23 A There was -- (Witnes.s referring to FAY 24 documents) 1 h� DIANE KELLY COURT REPORTING SERVICES (508) 771-8222 72 1 There was septic , as-built , normal 2 information you get when you ' re purchasing a 3 property, -copies of septic, as-built , and I believe 4 -- copies with the appraisal . 5 There. was also, probably, some town. 6 documents that might have been pulled during the 7 appraisal 'process , and I don ' t recall exactly what >V 8 was in that package . 9 Q Did you look at the records in the building 10 department prior: to the purchase-of the property?. 11 A No . 12 Q Did you speak to anybody , in the building x 13 department prior to your purchase . of .the property? 14 A No . 15 Q Did you speak to anybody on the Zoning .Board 16 of Appeals prior to your purchase of the property? xY 17 A N o .. 18 Q Did you speak to any other town official , 19 employees, anybody who works for the town, prior to 3- 20 your purchasing this property? - 21 A No, T don ' t believe so . i ' 22 Q So it.' s fair to 'say that you really .took no 23 steps to . determine the legality of the cottage F, 24 apartment in terms of looking at * town records? 5 <as-v ; I s DIANE KELLY COURT REPORTING SERVICES (508) 771-8222 .. . III, i ICHMf, Z kTTORN EYS February.), 2010 300 Barnstable Road Hyannis;'. A02601 (508) 775-3665 Fax(508) 7 75-1244 1 (800) 899-3003 http;!'u��zc.«}nm�1 nn.com Via First Class!fail Ruth Well, Esq. Jcni A.Landers Town of Barnstable 5recen H.Lon' 367 Main Street Jeffrey.L.Madison Richard A.Marrone Hyannis, MA 02601 Kevin P McRoy.— Seth U.Miller Robert EX(ills Charles D.:\lulcahy. Re: Susan LimoncelIi v..Town of Barnstable Zoning Board of Appeals, and its John J.O'Day,Jr. Members, Gail Nightingale, Ron S. Jansson, Daniel M. Creedon III, James R. Kevin J.O'AhJley Raymond C.Pelotc* Hatfield, Sheila Geiler, John Norman, Jeremy Gilmore, Kelly Kevin Lydon and Thomas E.Rmtes Michael J.Princi the Town of Barnstable Ryan F.Propliett pp Rebecca C.Richardum Docket No. 00-1 05 .Janice E.Robbins :--William Rosa' llina M.Swmis`n Dear Attorney Well: Andress A.Toldo John A.Walsh Paul E\Wynn •,oinasJ.Wyml Please find enclosed Plaintiff's Response to Defendants' First Request to Plaintiff for Responses to Town of Barnstable's Request for Admissions. Of Counsel 1 lom Rot•crt L.Sreadman(Ret.) I-hm.James F McGinen,11(aet.) If you should have any questions; please do not hesitate to contact me. Keou,h&Sueenry \William F.O'Keefe Very truly yours, A,httt�•e. \Lria.lunru„inJ RhnJc lslan.l W..I N & W I NN, P.C. . 611100A-,A-oie and N,-lamp-1 c <,,` Jj Jeni A. Landers JAL:crs Enclosure PN1.1 1L MONCELLI,SUSAN\St perior Court\\\'E1L9.%\pd . - ;I— Its '`tom,,;► _ �i23 filiare0tfire Racn!:am `.� Ne;c= e i27v:::.; . 1:,...-. \'�. '_ c- i,3 3) ;'ine�-ard Haven 15 C ...,ly :.. r Re:,. \`s..= :.j La:ccn.`i.. 'Sb (i ;l b33.6S S'_ COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BACV 2008-105 ---------------- ) SUSAN LIMONCELLI, ) Plaintiff; V. ) TOWN OF BARNSTABLE ZONING PLAINTIFF'S RESPONSE TO BOARD OF APPEALS, AND ITS ) DEFENDANTS' FIRST REQUEST MEMBERS, GAIL NIGHTINGALE; RON S. TO PLAINTIFF FOR RESPONSES JANSSON, DANIEL M. CREEDON, III, ) TO TOWN OF BARNSTABLE'S JAMES R. HATFIELD, SHEILA GEILER, ) REQUEST FOR ADMISSIONS. JOHN NORMAN, JEREBY GILMORE; ) KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE, ) Defendants. ) --------------------------------------------------------- ADMISSION 1. You currently own property located at.16 Division,Street, Greenwich, Connecticut RESPONSE Admitted t ADMISSION 2. The property located at16 Division Street, Greenwich, Connecticut was zoned as multi-family . when you purchased it: " RESPONSE Plaintiff can neither admit nor deny this fact as she has no.personal knowle&,e of the zoning regulations affecting,that property at the time she purchased it. ADMISSION 3. 1200$-003 2`.di 1 Si 0,iit rint:f orresponsestoiobrgst for a drills ion s-12330C 9-cel 1 There property located at 16 Division Street,Greenwich. Connecticut has two separate living units. RESPONSE Admitted ADMISSION 4. You are currently renting the two rental units located at 16 Division Street, Greenwich, Connecticut. RESPONSE Admitted ADMISSION 5. - You own or previously owned property located at.56 Orchard,Place Greenwich, Connecticut. RESPONSE Admitted. Further answering, I. no longer own this property.. ADMISSION 6. The property located 56 Orchard Place Greenwich, Connecticut was zoned as multi-family when you purchased.it. . RESPONSE Plaintiff can neither admit nor deny this fact as she has no personal knowledge of the zoning regulations affecting that property at the time she purchased it: ADMISSION 7. The property located at 56 Orchard Place, Greenwich. Connecticut had two separate living units. RESPONSE Admitted ; (_003-00351ds l strgsttopintfforresponsestotobrgstforadmissions-133009-c21] ADiVIISSION S. You currently own property located at.79 Strickland Road, Cos.Cob,.Connecticut RESPONSE Admitted ADMISSION 9. The property located at79 Strickland Road, Cos Cob, Connecticut was zoned as multi-family when you purchased it. RESPONSE Plaintiff can neither admit nor deny this fact.as she has no personal knowledge of the zoning regulations affecting that property at the time she purchased it. ADMISSION 10: The property located at 79 Strickland Road, Cos Cob, Connecticut has two separate living units. RESPONSE Admitted ADMISSION 11. You are currently renting the two rental units located at 79 Strickland Road, Cos Cob, Connecticut. RESPONSE Admitted ADMISSION 12. The subject locus is located in the Residence F zoning district. RESPONSE Plaintiff can neither admit nor deny this fact as she has not personally verified the zoning [200g-0035`•.dslstrgsnopintfforresponsestotobrgstforadmissions 123009 egl classification ADMISSION 13. Single-family residence is the only principal permitted use in the Residence F zoning district. RESPONSE Denied. Further answering, Plaintiff is aware of multi-family properties in the same zoning district as the subject locus. ADMISSION 14. In 1981, the subject locus was located in the Residence F zoning district. RESPONSE Denied. Plaintiff is without personal knowledge of 1981 zoning regulations. ADMISSION 15. In 1981, the subject locus was zoned for single-family use. - RESPONSE Denied. Plaintiff is without personal knowledge of 1981 zoning regulations. ADMISSION 16. In 1980, there was a garage located on the subject locus which contained no plumbing. RESPONSE Denied. Plaintiff is without personal knowledge of the existence or lack thereof of any/all plumbing in the so-called garage in 1981 ADMISSION 17... In 1981, John McShane installed plumbing in the site of the former garage. RESPONSE Denied. Plaintiff is without personal knowledge of exactly Nihen and by whom plumbing was [1-005-00351%dslstrgsttopintfforresponestotobrgstforadmissions 123UU9 cg] 4 r installed in the cottage. AD\-1ISSION 18. In 1980. the subject locus contained only one dwelling unit. RESPONSE Denied. ADMISSION 19. In 1981, the zoning bylaw applicable to the subject locus did not allow more than one dwelling unit on a single lot. RESPONSE Plaintiff can neither admit nor deny this factas she has no personal knowledC. ge of the 1981 zoning bylaws or.how they applied to the subject locus in 1981,' ADMISSION 20. cated at 207 Main Street, Cotuit, Massachusetts. You are the owner of the property lo RESPONSE Admitted. ADMISSION 21. The property which you own at 207 Main Street is located in the Residence F zoning district. RESPONSE Plaintiff can neither admit nor deny this fact as she has not personally��erified the zoning classification ADMISSIONT 22. . i r the purchase of the subject locus. Agnes Chatelain��as your broker fo RES_ [2005-0(3 `,dslstrgsttopl-itiforrsponsestotohrgstforadmissions-I?3009-c-2] Admitted. ADMISSION 23. Prior to the purchase of the subject locus. you did not ask Agnes Chatelain whether the garage apartment was a legal rental unit. RESPONSE Admitted. ADMISSION 24. Prior to the purchase of the subject locus,you did not ask an from Kinlin Grover whether the garage apartment was a legal rental unit. RESPONSE Admitted. further answering, agents of Kinlin Grover disclosed that there was a tenant living in the rental unit, but failed to disclose that the unit was potentially illegal. ADMISSION 25. Prior to the purchase of the subject property you did not review any files in the Town of Bamstable Building Department. RESPONSE Admitted. Further answering, Plaintiff states that she had no reason to believe that conducting research at the Building Department was necessary as no one from the Town disclosed that there was an issue with the rental unit until after the property was purchased, though under deposition town employees admitted to believing there was a violation prior to the purchase, but chose not to disclose it until after the purchase was completed. ADMISSION 26. Prior to the purchase of the subject locus, you did not review any files at the Town of Barnstable 6 ['O.OS-0035',dsl strgsttopL-tfforrespoiisestotobrgctforadtnissions-123009-cel Zoning Board of Appeals. RESPONSE Admitted. Further answering, Plaintiff states that she had no"reason to believe that conducting research at the Zoning Board of Appeals was necessary as no one from the Town disclosed that there was an issue with the rental unit until after the property.Was purchased, though under deposition town employees admitted to believing there,".-as a violation prior to the purchase, but chose not to disclose it until after the purchase was completed. ADMISSION 27. Prior to the purchase of the property, you did not speak.with anyone in the Town of Barnstable Building Department. RESPONSE Admitted. Further answering, Plaintiff states that she had no reason to believe that conducting research at the Building Department was necessary as no one from the Town disclosed that there was an issue with the recital unit until after the property was purchased, though under deposition town employees.admitted to believing there was a violation prior to the purchase, but chose not to disclose it until after the purchase was completed. ADMISSION 28. Prior to the purchase of the subject locus, you did not speak to any staff in the Town of Barnstable Zoning Board of Appeals Office. RESPONSE Admitted.Further answering, Plaintiff states that she had no reason to believe that conducting research at the Zoning Board of Appeals was necessary as no one from the Toxin disclosed that . there was an issue With the rental unit until after the property was purchased, though under [2008-003';\dslitrgsnopintfforresponsestotobrgstforadmission5-1?3009-c_] 7 deposition town employees admitted to believing there Nvas a violation prior to the purchase; but chose not to disclose it until after the purchase was completed. ADMISSION 29. The September 30, 2005 letter attached hereto as Exhibit A from David Burgess to Thomas Geiler and Tom Perry is your presentment letter under G.L. c. 258. RESPONSE Admitted. ADMISSION 30. You have no proof of service of the September 30, 2005 letter attached hereto as Exhibit A from David Burgess upon the Town Manager for the Town of Barnstable. RESPONSE Denied. Further answering, a copy of the letter was date stamped by the Clerk for the Town of Barnstable ADMISSION 31. The emer ency repairs referenced in the September 30, 2005 letter from David Burgess attached g hereto as Exhibit A upon the Town Manager of the September 30, 2005 letter were completed. RESPONSE Admitted. Further answering Plaintiff states that after Attorney Burgess got involved, and after much negotiation with the Town, Plaintiff was allowed to do certain emergency repairs such as closing the roof of of the main house and the siding on the rental unit which were exposed to the elements and fixing a crumbling deck which was a serious safety hazard. ADMISSION 32. The bank mortgage that «-as secured on the subject locus at the time,of purchase of the subject [2003-0035.dsIstrgsttopintfforrespons-st tobrgstforadmissionsl-123009-ce] locus was for a single-family home. RESPONSE Plaintiff can neither admit nor deny this fact as Plaintiff is without personal knowledge of the determinations.made by her mortgage lender when her mortgage was approved. ADMISSION 33. In applying for a mortgage with Bank of America.for the subject locus, you did not indicate that there would be rental income from the property. RESPONSE Plaintiff can neither admit nor deny this fact as Plaintiff does not believe this was asked of her on her application. Further answering,the Plaintiff states that the mortgage application speaks for itself and that Plaintiff has testified at deposition that she knew there would be no rental income from the property while repairs to the'cottage were completed. Signed under the pair and penalties of perjury this day of ; <,-� �- `�� /2010. , Susan Limoncelli f _. = - � oo9-�a 9 ' ns 13's io -tforadmi � _l - nsestotobr � tfforr e� o � _ ]n 9 �d�lstr stto p [_OOS 113� 9 r COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DOCKET NO. 08-105 SUSAN LIMONCELLI Plaintiff V. TOWN OF BARNSTABLE ZONING BOARD.OF APPEALS, AND ITS MEMBERS, DANIEL M. CREEDON III, RON S. JANSSON,RALPH COPELAND, GAIL NIGHTINGALE, RICHARD L. BOY, JEREMY GILMORE, RANDOLPH CHILDS, SHEILA GEILER, JAMES R. HATFIELD, AND THE TOWN OF BARNSTABLE Defendants CERTIFICATE OF SERVICE I, Jeni A. Landers, attorney for the Plaintiff,Susan Limoncelli, hereby certify that I served the foregoing Plaintiff's Response To Defendants' First Request to Plaintiff for Responses to Town of Barnstable's Request for Admissions, by forwarding a copy thereof, via first class mail;' postage prepaid, to: Ruth J. Well, Esq. Town Counsel Town of Barnstable 367 Main Street Hyannis, MA.02601 this I` day of February,'2010. �Jem A. Lander sEsq./ �ynn &W}nn, P.C. i 300 Barnstable Road Hyannis, MA 02601 (508) 775-3665 BBOT406680 I r r-S H M .5 U-PERio BARNSTam-ILP sz: TRIAL COURT OF THE AUG 2 9 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. Superior Court Department Civil Action No. U� _ �6 7 w? SUSAN LIMONCELLI Plaintiff, COMPLAINT AND V JURY DEMAND RUTHANNE GROVER, PAUL E. GROVER, KINLIN GROVER PROPERTIES, INC, AGNES CHATELAINE Defendant. __ COMPLAINT _ Introduction I. This is an action for damages based on defendants' misrepresentation, . breach of contract, and violations of Mass.G.L. c.93A. 2. Plaintiff Susan Limoncelli's ("Limoncelli") claims relate to her purchase of a home in August 2005. The defendants, the sellers and brokers involved in that transaction, made material misrepresentations to Limoncelli about a cottage on the purchased property being source of rental income. It was not until after the purchase that Limoncelli was told by the Town of Barnstable that the cottage could not be,rented and was in violation of the Town's zoning by-laws. The Parties 3. Limoncelli is an individual residing in Cotuit, Barnstable County; Massachusetts: 4. Defendant Ruthanne Grover is an individual residing in Cotnit,Barnstable County, Massachusetts. 5. Defendant Paul Grover is an individual with a place of business in Osterville, Massachusetts. He is engaged in business as a real estate broker. 6. Defendant Kinlin Grover Properties, Inc. (``Kinlin Grover") is a corporation with a place of business in Osterville, Barnstable County, Massachusetts. Kinlin Grover is engaged in the business of brokering real estate transactions. .7. Defendant Agnes Chatelain("Chatelain") is an individual residing in Hyannis, Barnstable County, Massachusetts. Chatelain is engaged in business as a real estate broker. At all times relevant to this action, Chatelain engaged in business under, the name Realty Executives. Facts 8. From 1976 to August 2005,Ruthanne Grover owned a property at 181 School Street, Cotuit,Massachusetts (the"Property"). . 9. During.part of that period,Paul Grover, Ruthanne Grover's son, and Ruthanne Grover owned the Property together as tenants by the entirety. 10. Ruthanne Grover sold the Property to Limoncelli on or about August 11, 2005. 11. Paul Grover and Kinlin Grover served as Ruthanne Grover's agent in the transaction. 12. At all times during the marketing of the Property and negotiation of the sale, Paul Grover acted as Ruthanne Grover's agent. 13. Chatelain served as buyer's broker in this transaction. 14. The Property was listed as a single family home,but the listing stated that a"guest cottage"was included with the Property. 2 15. When Chatelain first showed the Property to Limoncelli,the cottage was occupied by a rent-paying tenant. 16. The cottage included a bedroom, bathroom and kitchen. 17. Unbeknownst to Limoncelli,the cottage was in violation of the.Town's by-laws by being equipped as an independent living space. 18. At Limoncelli's request,Chatelain asked Paul Grover what the rental income was from the cottage. 19. Paul Grover told Chatelain the amount of income the cottage was generating, and that the current tenant had been therefor approximately nine years. Chatelain reported that to Limoncelli. 20. The Town of Barnstable had told Ruthanne Grover in 1981 that the guesthouse was in violation of the Town's by-laws. 21. At all times relevant to.this action, Paul Grover knew that the guesthouse was in violation of the Town's by-laws. 22. . Paul Grover did not tell Chatelain that he and his mother had been renting the cottage illegally or that the cottage was in violation of the town's zoning laws. He did not tell Chatelain that by renting the cottage, or simply by owning it, the new owner would be in violation of the Town's by-laws. 23. When Paul Grover told Chatelain the amount of rental income the cottage was generating,he knew that Chatelain's client was a prospective purchaser of the Property. 24. When Paul Grover told Chatelain the amount of rental income the cottage was generating,he knew that the rental value of the cottage was likely to be considered 3 material by a prospective purchaser in deciding how much he or she would be willing to pay to purchase the Property. 25. When Paul Grover told Chatelain the amount of rental income the cottage was generating, he understood that Chatelain's client would rely on the information he was providing in deciding to make a purchase offer and in deciding how much he or she would be willing to pay for the Property. 26. By stating the amount of money the cottage was generating,without also disclosing that it would be illegal for the purchasers to rent the cottage or even to own the cottage in its current condition, Paul Grover intentionally misled Limoncelli. 27. Limoncelli relied on the information provided by Paul Grover and, conveyed to her by Chatelain in deciding to make an offer to purchase the Property and in deciding how much she was willing to pay for it. 28. Limoncelli made.an offer to purchase the Property and thereafter she and Paul and Ruthann Grover entered into a purchase and sale agreement. 29. The purchase and sale agreement stated that at the time of delivery of the deed, the Property was to be then not in violation of the Town's zoning by-laws. 30. The closing on the sale of the Property occurred on August 9, 2005. 31. Approximately three weeks after the closing, Limoncelli received a.letter from the Town informing her that the Property was in violation of the Town's by-laws. 32. Ruthann Grover and Paul Grover had known this for many years. 33. Since her purchase of the Property, the Town has not allowed Limoncelli to have improvements or necessary repairs made to the Property, on the ground that a construction permit cannot be issued where any part of a property is not in compliance 4 with the by-laws. She has also been unable to rent the cottage. 34. At the time of Limoncelli's purchase of the Property, Chatelain had several years of experience as a real estate broker in the Barnstable area. As such, she . knew that the presence of rental units considered by the Town to be illegal, on properties zoned for single family use was common in Barnstable. 35. As a broker practicing in the Barnstable community, Chatelain knew, when she learned that the cottage was rented out,that it.was important to investigate the legality of the unit. 36. Chatelain neither investigated the legality of the unit nor informed Limoncelli that Limoncelli should investigate it. 37. Chatelain simply told Limoncelli the amount of income the unit was generating, without telling her that she ought not to count on earning such rent if she purchased the Property. 38. Both Paul Grover and Chatelain had an obligation to disclose that the Property was in violation of the Town's by-laws. Claims COUNT I-Misrepresentation (against all defendants) O u 7 4 -/© 39. Paragraphs 1 to 38 of this Complaint are incorporated by reference. 40. By reason of the foregoing,the defendants are liable to Limoncelli for misrepresentation. COUNT II—Breach of Contract(against Ruthanne Grover) ` 41 Paragraphs 1 to 40 of this Complaint are incorporated by reference. 42, By reason of the foregoing,Ruthanne Grover is liable to Limoncelli for breach of contract. 5 T COUNT III—Violation of Mass. G.L. c.93A(against Paul Grover Kinlin Grover, and Agnes Chatelain) 43. Paragraphs 1 to 42 of this Complaint are incorporated by reference. 44. The defendants acted in an unfair and deceptive manner toward: Limoncelli in order to induce her to purchase the Property, and Limoncelli has been harmed as a result. 45. The defendants' unfair and deceptive conduct was willful and knowing. 46. On October 17, 2005, through her attorney, Limoncelli sent a demand i letter, pursuant to Mass. G.L. c.93A, §9,to the defendants. 47. Although the defendants Paul Grover, Kinlin Grover and Agnes Chatelain, through their counsel, sent written responses,none of the defendants responded with a reasonable offer of settlement. 48. By reason of the foregoing,the defendants are liable to Limoncelli for violation of Mass. G.L. c.93A. 49. The defendants' c.93A violations were willful and knowing. WHEREFORE, Limoncelli requests that this Court enter a judgment.in her favor, awarding her damages,multiplied pursuant to chapter 93A, interest and costs, and such other and further relief as this Court deems appropriate. 6 JURY DEMAND Limoncelli demands a trial by jury on all counts so triable. By her attorney, David Burg (BBO# 553783) 37 Main Street Concord,MA 01742-2529 978.371.1900 Dated: August 27, 2008 A tripe copy, Attes IClerk 7 I COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS. SUPERIOR COURT 1 f--. C.A. NO. 2008-0623 SUSAN LIMONCELLI, Plaintiff, V. RUTHANNE GROVER, PAUL E. . GROVER, KINLIN GROVER I l PROPERTIES, INC. AGNES CHATELAINE, Defendants. -, . DEFENDANT AGNES CHATELAIN'S MOTION TO DISMISS Defendants Agnes Chatelain ("Ms. Chatelain")hereby moves pursuant to Mass. R. Civ.. P. 12(b)(6) to dismiss Count I of Plaintiff Susan Limoncelli's ("Ms. Limoncelli")complaint for misrepresentation.. Ms. Limoncelli's claim for misrepresentation is untimely and thus barred by the applicable statute of limitations; M.G.L. c. 260 § 2A. I. FACTS AS STATED IN THE COMPLAINT In reviewing a motion to dismiss a court will"accept the factual allegations in the plaintiffs' complaint, as well as any favorable inferences reasonably drawn from them, as true." Sullivan v. Chief Justice for Admin. & Mat. of the Trial Court, 448 Mass. 15, 20-21 (2006), quoting Ginther v. Commissioner of Ins.,'427 Mass. 3 19, 322 (1998). The complaint here states that Ms. Chatelain served as Ms. Limoncelli's buyer's broker in connection with Ms. Limoncelli's purchase of property located at 181 School Street; Barnstable, Massachusetts (the "Property" Complaint� ij 8, 10; 13. The Property was sold to �CH M1r. �- Ms. Limoncelli on or about August 11, 2005.1 Complaint¶¶ 10. The Property included a building separate from the main residence (the "Cottage"). Complaint S¶ 14, 16. Ms. Limoncelli alleges that, unbeknownst to her, the Cottage-was in violation of the Town of Barnstable's bylaws, but that Ms. Chatelain did not inform her of the violation. Complaint S¶ 17, 36-38. Ms. Limoncelli alleges that she relied on the belief that the Cottage was in compliance with the Town of Barnstable's bylaws in purchasing the Property. Complaint¶27. Approximately three weeks after the sale of the Property to Ms. Limoncelli,Ms. Limoncelli received a letter from the Town of Barnstable informing her that the Property was in violation of the Town of Barnstable's bylaws. Complaint¶ 31. Ms. Limoncelli filed this lawsuit on or about August 27, 2008. Complaint p. 7. II. ARGUMENT "A motion to dismiss under Mass.R.Civ.P. 12(b)(6), lies against a complaint which shows on its face that the statute of limitations has run prior to the.date the action was commenced." Babco Industries Inc v New England Merchants Nat. Bank, 6 Mass.App.Ct. 929, 929 (1978). In Massachusetts, the Statute of Limitations for a claim of misrepresentation is three years. See M.G.L. c. 260 § 2A. Massachusetts courts adhere to the settled common law principle that a cause of action in tort accrues at the time the plaintiff is injured. See Joseph A. Fortin Constr. Inc. v. Massachusetts Hous. Fin. Agency, 392 Mass. 440, 442 (1984). Here, the date of injury is the date of the sale, August 11, 2008. Ms. Limoncelli filed her complaint on August 27, 2008, some three years and 16 days.after the Property was sold to her on August 11, 2005. As such, her claim for misrepresentation is outside of the three year period permitted by M.G.L. c. 260 § 2A and is thus time-barred.. ' Ms.Limoncelli also alleges that the"closing"on the Property occurred on August 9,2008. Complaint¶ 30. The ambiguity in the Complaint regarding the date of sale does not affect the statute of limitations argument made herein. " 2 Even if Ms. Limoncelli is to invoke the "discovery rule,"see M.G.L. c. 260 § 12, and insists that she did not know of her injury until receiving the letter from the Town of Barnstable some three weeks after the purchase of the property, that rule is inapplicable here. The discovery rule provides that"causes of action do not.accrue for limitations purposes until the plaintiff knew or should have known that he has been harmed by the defendant's conduct."'Ross v. Garabedian, 433 Mass. 360, 363 (2001). The discovery rule will apply when the factual basis for the cause of action is "inherently unknowable" at the time of the injury. See Bowen v.Eli Lilly &_Co., 408 Mass. 204,206 (1990). Here, as the basis for her.misrepresentation claim, Ms. Limoncelli says that Ms. Chatelain did not inform her that the Property was in violation of the town's bylaws. Complaint¶35-38. However, the town's bylaws or any violation thereof is not inherently_ unknowable. The case of Friedman v. Jablonski, 371 Mass. 482 (1976) is diapositive on this issue. In Friedman, the plaintiff buyers in a real-estate transaction alleged that the defendant seller had made certain representations that the subject property had a right of way providing access to the premises over a paved driveway situated on the land of an adjacent landowner. Id. at 484. However, no legally enforceable easement existed over the adjacent landowner's property. Id. On appeal from an order of dismissal,the plaintiffs asserted that the statute of limitations should not have begun to run until they either discovered or reasonably should have discovered the misrepresentation.; Id. The court held that the discovery rule would apply to claims of misrepresentation in the real estate context only to the extent that the misrepresentation "concerns a fact which was `inherently unknowable' by the plaintiffs as the time it was made and at the time of the sale[.] Id. The court further held that a misrepresentation concerning a right 3 of way over an adjacent.parcel of land"ceased to be `inherently unknowable' by the time of the sale, and the cause of action then accrued. Id. at 486 (emphasis added). A case from the Superior Court is likewise on point in this matter, and like here, involved a misconception regarding a permitted use under local zoning bylaws. See Pasceri v. Bastille, No. 00-0336A, 2000 WL 33159181, at *3 (Mass.Super. Jul.21, 2000) (granting seller's motion to dismiss on statue of limitations grounds where Plaintiff discovered purchased property was not zoned for multi-family use after receipt of notice from city; "the existence.of the zoning law [was] not inherently unknowable by the plaintiffs in at the time of sale in 1985."), a copy is attached hereto at Tab. 1; see also Tagliente v. Himmer, 949F.2d 1, 5-6 (1st Cir. 1991) (fraudulent misrepresentation claim was time barred and not tolled by discovery rule where"[a]ll regulations and.zoning ordinances were a matter of public record available to the appellant."). In light of Massachusetts case law that is directly on point, Ms. Limoncelli's claim for. misrepresentation must be dismissed as barred by the statute of limitations. WHEREFORE, Defendant Agnes Chatelain respectfully request this court dismiss Plaintiff Sus an Limoncelli's claim for misrepresentation with prejudice pursuant to Mass. R. Civ. P. 12(b)(6). AGNES CHATELAIN,. By her attorneys, a Andrew J. Fay tBBO# 550058) Tracy L. Davis (BBO# 641440) TOBIN, SULLIVAN, FAY& GRUNEBAUM Wellesley Office Park 60 William Street Wellesley, MA 02481 (781)237-0877 Dated: October 1, 2008 A true copy, Attest 4 ;; Clerk I f Original Transcript COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT SUSAN LIMONCELLI, Plaintiff VS. C.A. NO.: 08-00623 RUTHANNE GROVER, PAUL E. GROVER, KINLIN GROVER PROPERTIES,INC., AGNES CHATELAINE, Defendants. DEPOSITION OF t AGNES CHATELAIN December 2, 2009 11:5.0 p.m. 91 Court Street Plymouth, Massachusetts Elizabette M. Afonso, Professional Shorthand Reporter and Notary Public i Nationwide Scheduling a se fide o�- Toll Free: 1-.800.451.3376' Facsimile: 1 .888.451.3376 The Evolution of Deposition Management - __ www.setdepo.com Agnes Chatelain December 2, 2009 i i t 41 t 1 MR: FAY:., Objection. You may answer. 2 A. I would have assumed that, yes 3 Q. And the guest cottage then would have been 4 something additional that would not necessarily 5 conform to the zoning? 6 MR. FAY: Objection: r 7 A. Correct, I guess. 8 Q. Now, did you ever suggest to Susan 'Limoncelli that 9 she have someone investigate whether the 10 non-conforming guest cottage, at least 11 non-conforming under zoning, was. permitted., to be 12 used by her? 13 MR. FAY: Objection. ' . 14 A. I don't recall . 15 Q. Did you have any discussion with her about whether. . 16 the guest cottage- was legal? 17 MR. FAY: Objection. You may answer. 18 A. I spoke to her and- said that if she. were to rent 19 it, that it had to be done on„ ,t`he QT. 20 Q. What do you mean by that? 21 A. That it would be essentially illegal to do it, and 22 she -- you know, that ' s the QT. 23 Q. ':QT" meaning quiet? 24 A. Yeah. Nationwide Scheduling y- �� Toll Free: 1.800.451,3376 '0= 5e1 depo Toll Free Fax: 1.888.451.3376 The Evolution of Monogemenf .��` www.setdepo.com _ COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT No. BACV2008-105 ---------------------------------------------------------- SUSAN LIMONCELLI, Plaintiff,' ) V. . ) TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. JANSSON, DANIEL M. CREEDON III, ) JAMES R. HATFIELD, SHEILA GEILER, ) JOHN NORMAN, JEREMY GILMORE, KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE, ) Defendants. ) --------------------------------------------------------- PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS COUNT IV OF PLAINTIFF'S AMENDED COMPLAINT Now comes the Plaintiff in this,matter and respectfully requests that this Honorable Court deny Defendants' Motion to Dismiss Count IV of Plaintiff's Amended Complaint for the reasons set forth below. I. INTRODUCTION l Defendants' Motion to Dismiss Count IV must be denied as Defendants' reliance on the exceptions to the Massachusetts Tort Claims Act is misplaced. Defendants in their motion grossly misconstrue the true nature of Plaintiff's claim in an attempt to force that claim to fit into one of the enumerated exceptions to the Tort Claims Act. Although subject matter jurisdiction maybe raised at any time, Plaintiff asks-this.Court to-take.note _ t_ of Defendants' obvious delay tactics by bringing what should have been a threshold motion (if it had merit) two years after commencement of the claim, resulting in ever increasing damages to Plaintiff in the nature of lost rental income and legal fees. I1. STATEMENT OF RELEVANT FACTS l. Shortly after the receipt of the letter from Linda Edson Letter informing them of the alleged zoning violation(Ex. A), the Plaintiff and her husband Albert Russo had a telephone conversation with Linda Edson wherein she stated that the Building Department had known about the violation on the property for over 24 years, that she personally knew about the apartment for a long time, and that she. was friends with the former owner, Ruthanne Grover. ' 2. There is no record of any enforcement effort by the Town between the 1981 letter from DaLuz to Ruthanne Grover informing her of an alleged violation, (Ex. B) and the 20051etter from Linda Edson to Plaintiff. 3. These statements by Linda Edson were reported to the Town Manager in the September 30, 2005, letter from David Burgess (Ex. C) then counsel for Susan Limoncelli, informing Defendants of the negligent non-enforcement of the Zoning By-laws as to the 181 School Street property; which non enforcement caused the Plaintiff to purchase the property without knowledge of the alleged zoning violation. 4. As stated in Ms. Limoncelli's complaint,the cottage apartment had been in existence since. 1981 and the Town of Barnstable Building Department had been aware of the conversion and use as a separate, independent dwelling since that date. (Amended Complaint¶37, Ex. D) 2 5. In 1989, after a further renovation under a valid building permit,the Town of Barnstable Assessor's Department(after a Certificate of Occupancy issued for, renovations to the main house and after inspection of the cottage apartment) began assessing the cottage apartment as a residential unit and the 181 School Street property as a multi family property. (Assessing Department Field Cards for 181 School Street, Ex. E) 15. From 1989 to the present the Town of Barnstable assessed the property as a multi family property with two residential structures. (Ex. E). 16. Paragraph 56 of the Amended Complaint alleges that Ms. Edson acting on behalf of the Town under the direction and with full authority of Thomas Perry and as Zoning Enforcement Officer told the Plaintiff that the Building Department has known about the cottage apartment for approximately 24 years,that she (Ms. Edson) personally knew about the cottage apartment as she was.a friend of Grover and further that she(Ms. Edson) visited Grover's property on many occasions prior to her role as a Zoning Enforcement Officer, 17. Paragraph 60 of the Amended Complaint alleges that prior to the Plaintiff taking title to the property in August 2005, Linda Edson learned that the property was on the market for sale and/or that there was a sale pending. 18. Thomas Perry testified at his deposition on August 5, 2008 that he indeed was informed by Ms. Edson of the pending sale of the 181 School Street property, and that he instructed her not to enforce the by-law and notify the then owner Ruthanne Grover of the violation and to allow the sale.to proceed with the Town's knowledge that the property was in violation. (Ex. F). 3 19. Paragraph 62 of the Amended Complaint alleges that by Perry's admission, prior to the Plaintiff taking title, Linda Edson informed him and made him aware of the pending sale of the property. ; 20. Thomas Perry at his deposition on August 5, 2008 admitted under oath that Linda Edson had informed him of the pending sale prior to the Plaintiff taking title. (Ex. - F) 21. Paragraph 63 of the Amended Complaint alleges that Perry specifically instructed Edson not to notify the seller(Grover) of a possible violation and not to interfere with the closing between Limo'ncelli and Grover, so as to allow the'Plaintiff to purchase the property with a violation and an illegal apartment. 22. Thomas Perry at his deposition on August 5, 2008 testified that he instructed Edson not to notify Grover of the violation and not to interfere with the closing. Further he testified that was the policy of the Department at thattime. (Ex. F) III. ARGUMENT Defendant is not immune to prosecution under the Massachusetts Tort Claims Act since none of the enumerated exceptions apply and Defendants' application in this case would produce an unjust result. The public duty and discretionary function exceptions to government liability enumerated in Ch. 258 the Massachusetts Tort Claims Act strike balance between providing rights to claimants and protecting public employers against potentially oppressive costs�and inconvenience of defending broad, generalized claims based upon allegations of failure to take some remedial action. Gage v. Westfield, 26 ' Mass. App. Ct. 681 (19$8). Plaintiffs claim is neither broad nor generalized and her right to be compensated for the negligence of Town employees must be protected. 4 A. DEFENDANTS ARE NOT IMMUNE PURSUANT TO SECTION 10(e) OF THE MASSACHUSETTS TORT CLAIMS ACT BECAUSE PLAINTIFF'S CLAIM IS BASED UPON THE DEFENDANTS' FAILURE TO ENFORCE THE ZONING CODE AGAINST PLAINTIFF'S PREDECESSOR IN TITLE,NOT UPON THE DEFENDANTS' REFUSAL TO GRANT PLAINTIFF A PERMIT. It is not; as Defendants contend, any failure on their part to issue building permits to Plaintiff, that forms the basis for Plaintiff's claim pursuant to the Massachusetts Tort Claims Act. This count is founded on Defendants' selective enforcement of the Zoning Bylaws of the Town of Barnstable, i.e. their failure to enforce the single-family restriction against Plaintiff's predecessor in title despite their knowledge of the alleged violation. Defendants have admitted in deposition testimony that they were aware of the alleged violation, discussed what action should be taken, and chose to ignore the violation until after Plaintiff purchased the property. (Ex. F) Plaintiff has never contended that the Town was negligent in failing to grant her.a permit. It is true that immediately upon being notified of the alleged violation Plaintiff t requested certain permits in order to protect the property from the elements and those permits did issue. The gravamen of Plaintiff's tort claim is that if Linda Edson and Thomas Perry had not been negligent in the effectuation of their duty to enforce the zoning bylaws, then Plaintiff would not have purchased a home that had been marketed to her with a tenant occupied apartment that later turned out to be allegedly in violation of the zoning bylaws. If Defendants had not been negligent in carrying out their duty to enforce the zoning regulations,when Plaintiff viewed the property there would not have been a rent paying tenant on the premises, when Plaintiff went to the closing the seller would have been required to disclose the nature of the violation or the title search would j 5 - r have revealed a deed restriction for the Town's Amnesty Program had the seller chosen that route. In Dinsky, cited by the Defendants, the Plaintiff claimed to have been damaged by the Town's negligent issuance of a building permit resulting in flooding problems on the property. They.claimed in that case that the Board of Health authorized the Building Commissioner to issue permits only if certain drainage requirements were met,but that the permits issued without the necessary work being done. 386 Mass. 801 (1982). Dinsky, in which the Defendant was alleged to have negligently issued a permit is therefore, distinguishable from the instant case in which the Defendants failed to take .required action to enforce a known violation of which the Defendant had knowledge... This conscious act to favor a seller over the prospective buyer negligently inflicted damage on the Plaintiff buyer. The bottom line is that Section 10(e) applies to permitting and Plaintiff is not claiming that Defendant was negligent in issuing or failing to issue a permit to her. Therefore, Defendants are not immune pursuant to that section. B. DEFENDANTS ARE NOT IMMUNE PURSUANT TO SECTION 10(f) OF THE MASSACHUSETTS TORT CLAIMS ACT BECAUSE PLAINTIFF'S CLAIM IS BASED UPON THE DEFENDANTS' FAILURE TO ENFORCE THE ZONING CODE AGAINST PLAINTIFF'S PREDECESSOR IN TITLE NOT UPON THE DEFENDANTS' FAILURE TO INSPECT THE SUBJECT PREMISES. As stated above, Plaintiff's claim is based on Defendants'.negligent selective enforcement�of the Zoning Bylaws of the Town of Barnstable, i.e..their failure to enforce the single-family restriction against Plaintiff's predecessor in title despite their knowledge of the alleged violation prior to the sale and their conscious decision to favor 6 the seller over the buyer Plaintiff. Plaintiff does not claim that Defendant failed to inspect the property to determine if it complied with the zoning regulations. In fact, we know from Defendants' depositions as noted above that Defendants did make a determination that the property did not comply with the regulations. It is Defendants' negligent failure to take timely and appropriate.action after making that determination that is at issue in this case. The cases cited by Defendants related to state agencies' failure to conduct lead inspections are.inapposite. Plaintiff has never contended that it was Defendants' failure to conduct an inspection that caused her damages. It is actually_rather ironic that Defendants make this argument since if they had failed to make an inspection and determination with regard to.the property,then their inaction would have been understandable based upon their lack of knowledge of the violation, and there could be no claim of negligence. Because Plaintiff is not claiming that,she was harmed by the Defendants' failure to inspect, the Defendants are not immune pursuant to section 10(f) of the Massachusetts Tort Claims Act. C. DEFENDANTS ARE NOT IMMUNE PURSUANT TO SECTION 10(i) OF THE MASSACHUSETTS TORT CLAIMS ACT BECAUSE PLAINTIFF'S CLAIM IS BASED UPON THE DEFENDANTS' FAILURE TO ENFORCE THE ZONING CODE AGAINST PLAINTIFF'S PREDECESSOR IN TITLE NOT UPON THE DEFENDANTS' FAILURE TO PREVENT HARM CAUSED BY A THIRD PARTY Plaintiff is not claiming that the Defendants failed to prevent harm caused by a third party. Plaintiff is clear in her complaint and all of her pleadings that Defendants themselves have caused the harm by negligently choosing not to enforce the regulations 7 E prior to Plaintiff's purchase of the property despite Defendants knowledge of the alleged zoning violation prior to the purchase. Plaintiff has claimed, in her companion case against the sellers and brokers of the property, that they too harmed herby failing to make certain disclosures. Plaintiff has not, however, claimed that the Defendants should have intervened in the sale and forced the sellers or the brokers to reveal the alleged illegality of the apartment. Seller would have been legally required to disclose the violation at or before the closing. Once again, the cases cited by Defendants on this point are distinguishable. Plaintiff is not asking that the town take responsibility for harm caused by another party out of the Defendants' control such as a gunman who enters a school or the riptide on a beach. Plaintiff is asking that Defendants be accountable for,their own action, i.e.their selective enforcement of the zoning regulations. The Defendants also are not protected by section 100) as they themselves are the original cause of the harm in the instant case.In Barley v. Town of Auburn, 19 Mass. L. Rep. 73 (Mass. Super. Ct.2005) the town's ambulance dispatcher called off an ambulance thereby executing an "affirmative act" to create a situation where an ambulance did not timely reach the scene of the emergency. The town,therefore, was not immune under section 100) because it was the original cause of the harm. In,the instant case, Thomas Perry negligently directed Linda Edson to refrain from enforcing the known zoning violation,thereby causing harm to Plaintiff who purchased the home without knowledge of the zoning issue and with the Town assessing the property as multi family. 8 Defendants also claim that.Plaintiff was in a position to know of the alleged zoning violation prior to the purchase. Plaintiff has testified, however, that she did reasonable due diligence in working with real estate brokers and looking at the Town's g assessing records when purchasing the property. Ex. G. Those records clearly indicate that the Town assesses the property as multifamily. It is absurd to suggest that Plaintiff could have known that the Building Department was hiding or concealing the zoning status of the property to favor the seller when another Town Department was well aware of the status and listed it on official documents. Ex. E. It is not the actions of a third party for which Plaintiff claims the Defendants should be liable, but their own. Defendants are therefore not entitled to,protection under section 100) D. DEFENDANTS ARE NOT IMMUNE PURSUANT TO SECTION l0(c) OF THE MASSACHUSETTS TORT CLAIMS ACT BECAUSE PLAINTIFF'S CLAIM IS BASED UPON THE DEFENDANTS' NEGLIGENT EFFECTUATION OF THEIR DUTIES T.E. THEIR FAILURE TO ENFORCE THE ZONING CODE AGAINST PLAINTIFF'S PREDECESSOR 1N TITLE NOT UPON THE. COMMISSION OF AN INTENTIONAL TORT Plaintiff does not claim that Defendants intended the harm caused. Plaintiff does claim, and the Complaint is clear on this point,that Defendants were negligent in the effectuation of their duties including consciously ignoring the alleged zoning violation while the property was owned by an acquaintance of the Defendants. 1 It may be a fine distinction, but it is one that must be made. Intentionally ignoring the violation in dereliction.oftheir duties, is not.the same as intentionally wronging the Plaintiff although 'Linda Edson is herself,a real estate agent,and therefore is a)acquainted with the local real estate market including Kinlin Grover,the agency listing the property and founded by the seller's family andb)not a 'disinterested party as it pertains to real estate transactions and the impact of zoning regulations on those transactions. 9 the end result is the same, i.e. damage to the Plaintiff. Section 10(c) was meant to protect public employers from claims for the intentional torts of their employees such as assault, battery, false imprisonment, etc,wherein the tortfeasor has.a conscious desire to bring lleged zoning violation, while intending to confer a about the result.By ignoring an a benefit upon a friend, the Defendants created a system of negligent selective enforcement which had an end result of damage to Plaintiff. The Building Commissioner admitted that he changed the policy after this incident. While perhaps not an admission it does show the responsibility of the Town for such decisions. The Defendants have a duty to enforce the zoning regulations. Massachusetts General Laws Ch. 40A. Sec. 7 states that"[t]he inspector of buildings, building commissioner or local inspector . or person or board designated by,local ordinance of by-law, shall be charged with the enforcement of the zoning ordinance or bylaw." Pursuant to Chapter 240, Article 12, Section 240, of the Bylaws of the Town of Barnstable, Chapter 240 (Zoning) "shall.be enforced by the Building Commissioner of the Town of Barnstable or his designee." Because the Defendants intentionally ignored a violation with the intent of favoring a particular property owner,they were negligent in the effectuation of their duties. Plaintiff has not alleged an intentional tort and the Defendants are therefore not immune pursuant to section 10(c). 10 E. ALTHOUGH SUBJECT MATTER JURISDICTION MAY BE RAISED AT ANY TIME DEFENDANT HAS ACTED IN BAD FAITH BRINGING THIS MOTION ONE MONTH AFTER BRINGING A COMPLEX MOTION FOR SUMMARY JUDGMENT AND OVER A YEAR AFTER THIS COUNT WAS ADDED TO THE COMPLAINT. Defendants have had since January 29, 2009,the date upon which the Complaint was amended to include the Massachusetts Tort Claims Act count, to file this motion. By waiting this long and strategically filing this motion one month after.filing a motion for summary judgment on the same count, Defendants continue to delay these proceedings and cause Plaintiff to incur substantial attorneys' fees. If this'Motion had.merit as -diapositive, it should have been brought before forcing the parties through the time consuming depositions, discovery; and the summary judgment process. Knowing that Motions for Summary Judgment had to be filed before April 1, 2010, Defendants served their Motion.for Summary Judgment on Plaintiff on Friday,March 5, allowing Plaintiff just enough time to respond. The instant motion to dismiss was again served by hand on a Friday afternoon, allowing Plaintiff just enough time to respond before the June Ist hearing on the pending Motion to Recombine the cases. It should also be noted that Defendants opposed the original Motion to Bifurcate the Tort Claims Act count,from the other counts and now opposes the recombining. This is nothing short of abusive. Plaintiff therefore requests that if Defendants' motion is denied,that Plaintiff be awarded her attorneys fees incurred in the defense of this motion. . 11 t IV. CONCLUSION. Because Defendants are not immune pursuant to the enumerated exceptions of the Massachusetts Tort Claims Act, Plaintiff respectfully.requests that this Honorable Court deny Defendants' Motion and award Plaintiff attorneys fees incurred with the defense of this frivolous and untimely motion. Respectfully Submitted, Plaintiff by her Attorneys, c ael J. P ' , Esq. BBO#406680 J ni A. Lande , Esq. BBO#669921 & WYNN, P.C. YNN 300 Barnstable Road Hydnnis, MA 02601 (508) 775-3665 CERTIFICATE OF SERVICE Barnstable, ss. May 19, 2010 I, Jeni A. Landers, attorney for the Plaintiff Susan Limoncelli hereby certify under the pains and penalties that I caused to be Hand Delivered a copy of the above document to the attorneys for the above-named parties on the date written above. In addition, as is required by Superior Court Rule 9A, I sent via E-mail a copy of the above document to the attorney of record for the above-named Defendants. Ruth J. Weil,Esq. (BBO#519285) Town Counsel Town of Barnstable 367 Main Street, Hyannis, MA 02601 ?eii Lande s 12 ri �! f �� - EXHUT __2�_!_ °Fzrok� 'Town of Barnstable P °� Regulatory Services * HARNSlAS - - . MASS. PIEo ,�> BuiIding Division Thomas Perry,BuiIding Commissioner 200 Main Street, Hyannis,MA 02601 1"-w.town.b arnstable.ma.us Office: 508-862-4024 Fax: 508-790-6230 August 29, 2005 Ms. Susan Limoncelli 181 School Street Cotuit,Ma. 02635 Re: Illegal Apartment-181 School Street Cotuit,Ma. 02635 Map 020 Parcel 090 Dear Property Owner: Our records ind-ate that your house at the above-referenced location is.currently being used as a multi-family home,which is contrary to Barnstable Zoning Ordinances. Violation of zoning ordinances is a misdemeanor, conviction for which results in a criminal record. You must contact this office within 14 days to either: Apply for a building permit to restore the property to a one-family home Apply to the Amnesty Program s . Prove that this is a,legal two-family home. Please contact this office immediately to tell us what direction you wish to take. Sincerely, Linda Edson Amnesty Program Zoning Officer Building Department ILgforrns:zoning3 ' � iI L' _ � .. Yam./ RLBER.T J. R 5ne-428-6 52B P. 1 r"LEPHONE. 77--1120 .IO SEPH O_ ❑LLux _ Err. 107 TOWN OF BARNSTABLE BUILDING 1NsPEC'TOR • M TOWN OFFIct_ BUILDING V . HYANNIS, MASS. 02601 November 6, i 98l Mrs_._Ruth Grover-...._= Dear Mrs_. Grover: Recently Mr_ John McShane appeared at this office re the legality. of the installation of:a utility sink and heating a garage for occasional use as a workshop..* For that use permission was. granted provided'tie obtained the proper permits. On November 4th, Alfred Martin, Assistant Building Inspector and John Newton, Wire Inspector made an inspection and what a surprise. Mr. Newton not only found a water heater installed without a permit but a dwelling unit wired. They discovered this garage had a.stove, kitcben sink, refrigerator, bed; perhaps better described as an apartment unit. Perhaps you were not aware of our zoning by-law which addresses such violations whereby .the _"Building Inspector may,. where the situation requires., cause a . criminal complaint to issue from the First District Court at B* stable.or. may institute proceedings in Superior .Court to enjoin. the-construction. or use of any building or the use of any premises in violation hereof....". V So, Mrs. Grover, it appears you have some very serious.problems. Therefore n my office•�iithin seven (7).days of -receipt of I shall expect to.see you i this letter with a'method for correcting this violation. At that time a determination for compliance may be issued. Peace, Joseph D. DaLuz Building Ccciaissioner JDD/gr. r cc: Town Counsel Board of Appeals . Certified mail 358 287 423 R.R.R. `� �� i � - - _ � � i, I - EXHIBIT MDB September 30, 2005. Thomas Geiler; Director of Regulatory Services i Tom Perry,Building Commissioner E -7 Building Department r� - Town of Barnstable 200 Main Street Hyannis,MA 02601 : -- Re: 181 School Street Cotuit4 MA 02635 Dear Mr. Geller and Mr. Perry: I represent Susan Limoncelli. On August 11,2005 Ms:Limoncelli purchased a home at 181 School Street, Cotuit. Less than three weeks later, she received a letter from Ms. Linda Edson informing her that the home she had just purchased was in violation of Town zoning laws. A copy of Ms. Edson's August 29 letter is attached for your convenience. Ms.Limoncelli asked me, shortly after her receipt of Linda Edson's letter to advise-her concerning her obligations to the Town of Barnstable, as well as her rights on she has unknowingly inherited with the purchase regarding the alleged zoning violati of her home in Cotuit. ` Ms:Limoncelli purchased the home with the understanding that it included a legitimate ge. If, as Ms. Edson contends,Ms. Limoncelli is separate income-generating cotta required either to convert that building to a barn or garage or to apply to your Amnesty Program, then she has purchased a property that is worth substantially less than she paid. Although we are still reviewing,this matter so that Ms.Limoncelli can make a fully informed decision about how to proceed,Ms.Edson's recent conduct has created an emergency situation that needs to be resolved immediately. Without authority to do so, and in apparent contravention of the Town's by-laws and the State Building Code,Ms.Edson caused the Town's building inspector to order a contractor who was performing ordinary and necessary repairs on the property to cease all work. This has left the property exposed to the elements and in a state of disrepair.. Inexplicably,Ms. Edson took this action the same day that she had sent a letter giving Ms. Limoncelli until October 7, 2005 to make arrangements to bring her'property into compliance. Ms. Edson contends in her August 29 letter that the property is not in compliance because it is"currently being used as a multi-family home." Although Ms. Edson's statement about the current use of the property is factually incorrect,we understand that the alleged violation is based upon features of a separate building on Ms. Limon' property that - David Burgess_&Associates - www.burgesslaw.corn -37 Main Street Concord MA 01742-2529 1 978 371 1900 f 97B 371 1144 Thomas Geller,Director of Regulatory Services Tom Perry; Building Commissioner 9/30/2005 Page 2 have in the past enabled it to be used as a separate'residence. The previous owner rented that building to a tenant without interference from the Town for many years. Ms.Edson has told Ms. Limoncelli that she knew that the separate building was being used as a residence before she was hired to her present position and that she continued to be aware of it throughout her tenure. The tenant moved out just before Ms. Limoncelli purchased the property. Now, as soon as the ownership of the property changed, it suddenly has become a priority to bring the property into compliance. Such selective enforcement is unfair and,.as detailed below, .has harmed, and is harming Ms. Limoncelli financially. Ms. Edson's effort to force Ms. Limoncelli into immediate action is an abuse of her power and borders on extortion. This conduct seems particularly arbitrary and capricious in light of: 1. Ms. Edson's tolerance of the property's-alleged non-compliance while it was owned by a person who was her friend and whose son was her friend and business acquaintance; and 2. the Town's tolerance of this condition for almost 24 years (seethe . enclosed copy of a November 6, 1981 letter from the town to Mrs. Grover that Ms.Edson recently gave Ms. Limoncelli). Ms. Edson's conduct, and subsequently that of Building Inspector Jeffrey Lauzon,has caused financial harm to Ms. Limoncelli, and will involve considerable additional harm if she is unable to secure her home against the elements. Had Ms. Edson acted as her position requires; Ms. Limoncelli would have purchased with. notice of the restriction on the cottage. She would have known that she would not be free to rent to whomever she wanted, and she would have paid substantially less for the property or perhaps not purchased the property at all. Instead,Ms. Edson waited until her friend had sold the property, and then promptly sent a notice of violation to Ms.. Limoncelli. Further, in response to Ms. Limoncelli's request for reasonable time to investigate her options,Ms..-Edson has taken action to pressure Ms. Limoncelli, as if this were suddenly a matter of the utmost urgency. On September 26, 2005, after Ms. Limoncelli's contractor had begun making necessary repairs of the kind that do not require a permit(see 780 CMR§§10.1.3,.202.0),she received a visit from Mr. Lauzon, the Town's building inspector. He first said that his , visit was a random.inspection,but then admitted that he had come after discussing the property with Ms. Edson. (The use by Ms. Edson and Mr. Lauzon of Town departments . to coerce people into submission is an abuse of their positions.) The inspector posted a David Burgess Et Associates wwwburgesslaw.com 37 Main Street Concord MA 01742-2529 t 978 371 1900 f 979 371 1144 Thomas Geiler, Director of Regulatory Services Tom Perry, Building Commissioner 9/30/2005 Page 3 notice prohibiting further work on the property and prohibiting occupancy, on"the ground that no permit had,been obtained. As a result, in some places the only thing protecting the property from the elements is tar paper. Additionally, a new roof is necessary to protect the property from rain and snow damage. The order prevents Ms. Limoncelli from doing anything to.protect her property, even though such repairs do not require a permit. (Her contractor told her that this was the first time ever that such a demand had been made of him for this type of repair work.) Finally, in case you have"the impression that Ms.Limoncelli has somehow been uncooperative in this matter,I believe the following chronology demonstrates otherwise: Ms. Limoncelli acquired the property on August 11, 2005. . • On August 29, 2005,Ms. Edson informed her in writing that the property was in violation of current zoning. On September 1, 2005, Ms. Limoncelli and her partner, Bert Russo, called.Ms., Edson to find out what the problem was. Ms. Edson told them that they had purchased a property with an illegal rental unit. She then acknowledged that she was friendly with Mrs. Grover(the previous owner) and her son,Paul Grover, acknowledged having known that the property was in violation before she took the job, and mentioned that the Town had sent.a letter.ao Mrs. Grover 24 years before about the same violation. She then told Ms. Limoncelli and Mr.Russo about the Amnesty Program. On September 2, 2005, when Bert Russo went to the Town Offices and requested additional information, Ms.Edson handed him a copy of the notice the Town had sent the previous owner in 1981 (a copy of that letter is enclosed with this letter). On September 6, 2005, Ms. Limoncelli got a call from Beth Dillen, Project - Coordinator for the Amnesty Program. Ms.Dillen said that Ms. Edson had told her that Ms. Limoncelli was going to be participating in the program,and was calling to schedule an appointment with the building inspector.and to deliver the program application. At Ms.Limoncelli's request, Ms. Dillen sent.her an information package about the program. The package arrived in the mail on " September 12, 2005. On September 19;2005, Ms.Dillen called and asked Ms. Limoncelli what she had decided to do about.the Amnesty Program. Ms. Limoncelli responded that she had not yet decided and was still in the process of gathering information in order to be able to make an informed decision. Ms. Limoncelli pointed out to Ms.. Dillen that in light of the Town's 24 years of inaction on this zoning violation, she David Burgess &Associates v,,w .burge ss I aw.com 37 t✓iain Street Conrord ?1A 01742-2529 1 978 371 1900 f 978 371 1144 Thomas Geiler,Director of Regulatory Services J Tom Perry,Building Com_Tnissioner 9/30/2005 Page 4 felt the Town had an obligation to give her adequate time to research the issue without rushing her into a decision when she had only owned the property for one month. Apparently that response was not acceptable. The stop work order followed immediately thereafter. With this letter,I enclose a copy of a public records request Ms. Limoncelli has sent to the Town. Although we are unlikely to achieve a long-term resolution of this matter until we have had a chance to review the requested documents,we demand that the restriction on repairs be lifted immediately. The current work being done did not require a permit, and the inspector had no right to order the work to be stopped. The Town's rights would not be prejudiced by allowing these repairs to proceed, and its potential liability for future damage to the property would be reduced if the contractor could complete the repairs. If the stop work order is not lifted,Ms. Limoncelli intends to initiate legal action seeking emergency injunctive relief and an award of damages against the Town and those individuals involved in this selectively coercive action. Please get.back to me, or have Town counsel get back to me,without delay. Sincerely, 1-5ZY' David Burgess cc: John Klimm,Town Manager Linda Edson,Amnesty Zoning Enforcement Officer r Jeffrey Lauzon,Building Inspector Ms. Susan Limoncelli David Burgess Et Associates v^vw.bur9ess1aw.con 37 Main Street Concord MA 01742-2529 1 973 371 1900 f 978 371 1144 v ' � .. y � - -� �� �� 28. The Town also approved the installation of a separate electric meter on the cottage apartment in or around 1981. A copy of the Town's."Approved" tag attached as Exhibit C. 29. Mr.Newton noted that a water heater had been installed as part of a dwelling unit. In addition, the cottage apartment had a stove, kitchen sink,refrigerator,full bathroom including shower, and bedroom loft, confirming that Grover constructed a cottage apartment. (See Exhibit A) 30. In the DaLuz letter, he requested that Grover come to see him within seven (7) days as the work appeared to be in violation of his permission and the permit, which likely issued. He further noted, "at that time a determination for. compliance maybe issued", indicating the distinct likelihood that the amended work would be approved (Exhibit A) 31. After receipt of the DaLuz' Letter,a friend of Grover, Attorney John Harvey timely communicated with DaLuz at Grover's request. This information was made available to the ZBA through the,affidavit of Marjorie Harvey, which.is attached as Exhibit D. 32. On or after November 6, 1981, DaLuz and John Harvey discussed compliance of the renovation project with the permit. 33. After the communication with John Harvey, DaLuz approved changes to the original permit, allowing the garage to be converted into a cottage apartment and to be used for residential purposes. d 34. Buddy Martin also has a memory of an attorney coming to meet with Daluz concerning the renovation of the cottage apartment. 35. Thereafter, Buddy Martin daily drove by the cottage apartment and observed it being used as a residence. 36. From and since November 1981, and until the sale of the house to the Plaintiff on August 9, 2005,the converted garage has been continuously used as a residential cottage apartment. 37. From and since November 1981, the Building Department has been aware of Grover's use of the cottage apartment for residential purposes. Copies of the DaLuz letter were also sent to the then ZBA and the then Town Counsel. 38. By DaLuz sending his letter to the ZBA and the town's attorney, given the likely existence of a building permit, followed by the meeting of Grover's representative with.DaLuz, followed by 25 years of uninterrupted use of the cottage apartment for residential purposes clearly demonstrates the Town's position from 1981 until Perry's denial to recognize and acknowledge the legality of the cottage apartment. Page -4- '` ,, ���. I C. -01 CT 07109195 - 1011 , 0D . 03AB .R020 . 0911._ NIT ADJ'D. UNIT ACRES/UNITS VALUE Dexription tR0VER,i R11Tk9ANNE E P>�UL ` E - MAP-- iICE PRICE 9LANP ' 1 47:90U -CARDS IN ACCOUNT. .9 7.9799. 99- _60 4 9flU" 3LD CS)--C �3t=7 '1 i 77r3QO `. OF . 02 3LIIG(s)'-t ARD--2 1 ` 24 ; TDO C09T D .60 GO-00 1 ::.OD - 5000 3 4PL- SCHOOL ST! COT ARXET . . "1243D0 •.fl 31 DD_0 13 .. 2-00 . 6200 B 4IIL ` L0T_ 15 I1�C�Ji�IE ` ERR•: 1433 •01DO USE PPRA3SED ' WANE - 149-w3DD ARCEL`SUMMARY ' AND ° 479170 LDGS ' 1 DI400 —IMPS TOTAL 149300 CAST { - [DEEDREFERENC Type DATE RecorC.d PRIOR- YEAR i VALVE - . Book Page I.W. MO. . Yr" - S.lea Pric. • .A,ND - . ' 47 J 00 ' 8'921 !"!b I�1TI112193: F , 100' LDGS 1 t31413L 23421133: b0lQG TOTAL - BUILDING PE44MIT - N.-t-, Dale Typ. Amount S FEATURES UNITS ; 12200 32976 ' l9 AD L— %R.G' Rep] Cost New Ad,-Repl VMl Stories I Height Roorrn 'Rrtu �atha IR><. P.rlywall Fae_ 00 74 10.4462 7730D : 1 _S - 9 - -4 "1 1 : : 6.;0 " .ME 2190 SCALE: Dfl.37 ELEMENTS CODE CONSTRUCTION DETAIL WELLING � P: 22--* : STYLE 7t3 LD STYE II .0 n1D ._•1li €;YSfl-_AYJigT- f�i3 ,--'--------------- �U 3A ' ji7�ff&gLES. --- l.D 1 9-7— £ATIA '_TY TT A]5-z9 XIM A 31t 5F . ! 11T £=LAYCEOT � V'1=R.;7M'R - 2 flT >QIrAL1 Y AWE'ASS-EXT Cl f�- 1T^tl LDR- TZCT fJ ;i�1 1I11�A1 --.-�_0 - . E .I0-0-9-LAVER--- W -ARtWDVV- --------07_D B15 LEETRIr- KC --- !31 WE, E---------- =1 t __ _ LS-------f r OAS E., 25 - - - 13 s ---- 31t3DRf1 • II =17�A. Tt}1 ':-=----- i. . : LAND D TONAL ?4ARKET` PARCEL ' 479flD- - 149300 .AR-EA : -4439.. , CE PRICE ACRESIUNITS ' VALUE . Description i .3 ra u v i:.:i TXj H tr a i U. r f-t u L 1 : 11A 37' CARDS IN ACC04JNT — Q 3.50.0-DLL 1 eDD 3500 3 � . :D2 oF' 02 35 5. - - 600 - 4700-3 COST- - ' 493UO_ ' MARKET ' '.1243OP, INCOME ` SE PFRAISEI3 :1l11EitE It: ` 149,300 . ' PARCEL' SUN-MARY ' A? D 479gD L.D G.S ' 1 014 D{3 -imps OTAL 149300 CNST- . - DEED REFERENC TYW DATE RccordW R I .R=''l:EAR 47900 ' VALUE Book Page Inst. MO. Yr-ID . Pr7ca I �� 4 7 U U 1 1 t LD-GS ' 1.81400 TOTAL 149300 BUILDING PE��MIT Y '.89 '.PI C K�E D 'U P N—t-r Dete TYpn Amount GAR C O N-V E R S I O N_.. FEATURES: ... BLD=ADDS - UNITS 1200' - Loc -A.R G Repl, Cost New .. AdI Repl Value .Stones Height Rooms Rms BMhs f mix. P.,i,.Il Gx- - 3.43 616 36540 241DD ' 1 ,�0 : 1 G 4_,0 fiE . . 21 90 SCALE: 1 � �92 ELEMENTS CODE CONSTRUCTION DETAIL 1GLE -FAMILY: -DW.ELLIi4G ENST- GP:Ul3 ?i3- -----* TYLE • - .09 COTTAGE D_D --------------- --- --------------- ---- � ` DESIGN ; ADJIAiT 00 _ "D_1] XI£3t> iA1=LS . . 1 �3L)T3 SEINZLEs - Q�.1J ---------------. --- ---------------------- €ATIAC TYKE. Djt IL: O' D -- -- ---------------------- : ! 1Ttt.��iNIt#3 . - - 04 Y TATLE. ---------------------- ?1T _C1UALTY; Q AAlE AS -EXTERN -- 17:D ---iABLE: ------------=--------- �: FLOOR STRUCT__` .04OfICRETE SLAB BASE . 3.0 E -LGOR-C_i3 FER 64 �1�PE7.'---------->.D�.D ----------- --------- - $Df TXI°E --- l37 =A.Sg1t' S11 U_�J Y _ -LETI2IAL--- '1 . VERlt6 -------•- D.O �.- F bbN15ATI 9- - 113 NElAtT1_ "SEAR 9-9.9 __ .• � . ------------ --- -- -------------=-------- LAND I TOTAL' - 1IARKET. . PARCEL AREA ' rty Locolion: 181 SCHOOL_ST COT MAP ID: 020/090/// ID: 917 Other ID. BldgA 1 Card I. of 2 Print Dale:03/20/2006 11:37 :r'CI7RE . .-AR . 0 °' : T iR09:Dii VER,RUTHAMB&PAUL E Description Code Appraised Value Assessed Value DYER,RUTHANNE RES LAND 1010 48,000 48,000 80.1 OX 262 RESMNTL 1010 104,500 104,500 T1T,MA 02635 Barnstable 1998,MA ccount# 8592 220/65 200 LOT 15 Y isi®I IS ID: Total 152,5001 152,500 .-i a. .Y °�, LSt'"-4'k,';dP,k' _.till. N:to T •i4h:;L'.`w:!.%:. :a:f:a,: - O OF 0:1Y. Z✓RSI Pn-%l r.,�.:q••Y F - .04- S'` •,. '/ ti i:.''S Y.C3y, xtu,l,l :li �t_. I) �S S .Sl$�VL •.• ;5�' 7XS QR. f'ti, s 3., h .c' '.�ti.' rr••r: TER,<RUTHANNE 11024/007 10/24/1997 U I 0 lA Yr. Code 'Assessed Value Yr. Code Assessed Value Yr. Code I Assessed Value r.R, UUTTEUNNE HA E&PAUL E 8921/161 12/15/1993 UU I 1000 F 1997 1011 149,300 96 loll 149,300 995 loll 149,300 TO 1:1 149,3001 Total. 149,300 Total: 149,300 .:1'r r,��-'. -'''irr".�`:. ter:•�;A :P.,'YO t—h+C� :�'�,t3,�d,�- '1�^S� i'r '$ F �w3°p ky a Sao^ x•r1�.; t..,r:; ����-��.-'�'•- '•• IY ,.r.+. ! .u' � .-1t <,'� � `�6�<. �:-`���O.ZH -t�' SEr� 'E; x - ";%�-•?���,�•�s'� This signature acknowledges a visit by a Data Collector or Assessor rr TypelDescription Alnaunt Code Description Number Amount Conan.Int. RMl •'r... ii � 'f'T-T� U •,4�,•lF't.7-'"'t"'•` rllil,�`,.'l'�.'{ 1�•l�'�i�3�"°• Appraised Bldg.Value(Card) 69,100 Appraised XF(B.)Value(Bldg) 4,700 Total: Appraised OB(L)Value(Bldg) 0 � raised Land Value r�Id 47 i,?:.".i•''-•�•n::r?-rr`' :,'.�.ti av: �9•� ,Na +�7' � l '�' r'T'd �''�T` `i JI C• Al)1) (Bldg) ,900 +.IS' k ill+,Pi r ..:r.�t .:••`,`e. JN+ _ .i r. .�i; :n4k..., , Special Land Value Total Appraised Card Value 121,700 Total Appraised Parcel Value 152,500 Valuation Method: CosVNIarket Valuation it Total Appraised Parcel Value 152;500 ..�.•.,._.. .:-i: ...,,�� J:.-'*�i'"� � �F:'; i,C i;?. M:b"• i J'�ra'� 'o-t.:.<•J:'••....•_.i.• .. -. ....<s..:l..r..l. v.y .:'`::'•;i;!F-t..'ce• .it�'v � ,�� .J. 'h Y•us1..a. ,.k - �h ..r .L ,.n •`t'' ���•' t .Y. _ sy6:'. .I :i}'..i•.i' r'gT,i? ,,,, ��;� - - ..._ r•. _ >,,,_1;:.'a•:���a,.�7vf'64. I��'?',• �E'R• 'I $ �D` '�..11•==i��:: r.�.,�•�:.'�1i��:,.<..•,. •}��' :^'`;(;j„ �. .lr,�j..,l>?_,:,•v.'..r,' SI.T/GI GE:HIS'i'-RY.:%:'•'�,.: r .�.". . ...:.::... .� - -. fun` !.�...s+� .-..f:. v V5 '� L C. .. ... �• , 4 'fit n'. l.•. 1+."f.:� t� • -All) Issue Date Tvpe Description Amount Insp.Date %comp. Date comp, Comments Date ID Cd. Pu 'ose/Result 2976 6IM989 AD 10,000 1/15/1990 100 CO ADD'N 2/15/1990 ME i :..<..�. �:.1•. _N'. .: .Y.l} ,.Y l:l !;,.;,.. ..�' �.k "R i•L:� - Y. _ ..�: .I.:r w,^..s —Y.i-Y. ,, ..:..� w�? dL-:. •W..!-.... �:• t '[• ......� L. '�•: . -'.:. i .9r"' � Y.. !:8',-�Y�.'.;;:•. � ,�d. .l. �1:� ..r ti" .i!'di .1''b :':.t,�rr ( "Ji,:r:<i)'' ...0:.r;•�:.:10. i. .Lf1'ND�' ,•xs ���`=kk•y: ti• f,;a� ::_:, „�-,.•:..::::.•',::.;;:6.- „ � . ',>-;4,� a�r!,ct+,�t��' -.... �_':... A�^U,�,4T,�lJN,J EG .L'7' ,'�' •I[7 �` v'' 'l*fi,< r�,,ti7. a�,.. .xa,�.� �..Y;7r,�a�e+�i'>a•:,,.�......:•..Srt,�:,:•:,.: .: .,., . . Ise Code Description Zone D Fronta a Depth I Units Unit Price L Factor S.I. I C.Factor Nbhd. Ad. Notes-Ad/S ecial PricinR Adj. Unit Price Land Value 1010 Single Fam RF 2 1 0.60 AC 133,000.00 1.00 5 1.00 03AB 0.60 PCL(.60,U10)Notes:10 IBLD 79,800.00 47,900 i I . Jcrty Location: 191 SCHOOL ST COT MAP ID: 020/09011 h M 917 Other ID: Bldg A 2 Card 2 of 2 Print Date:03/20/2006 11:38 s',,.:.�• ,y7r[ :�^-4' 'ra .s�_„ki p.�� .�::�. ,ua' _'}.•_` t.-9 �:n :�.. ....:: ,:.t..,. :r__ .,rf:. v ,�' + "- "c.U� .1.�•IEuli.;:�llaR•T,.:YR.DiS:D_ `=L�t7•C:4�Z'I Nid? �.•R:s::.�i i:�1:ft. l�tt.� -+.� i:f��'y:r; .R?��-! Q SSES.�itil`��` )VER,RUTHANNE&PAUL E Description Code Aj7praised Value Assessed Value^f ROVER,RUTHANNE RES LAND 1010 48,000 48,000 801 BOX262 - SMNTL 1010 104,500 104,500 Urr,MA 02635 �q �r�tX1 �/, Barrtstable I998,MA .l r 'E;�� lYl.t:rlf�1� •�:r.'.f�4�f�lrl?INI7'i:''` • ccount# 8592. 220165 200 LOT 15 VISION IS ID: Totall 152,5001 152600 t RECOItD_OF 1VNER II P ....: .. .. •._,.... ,-�. ;,.�-.� -� ,�.t' S' ,�;F�'� ��:: / V./�:iSAliE4JP, G :Ci�4;::.,,:;;t�,•i�'!'.1�" ` '�t,>��+ r ;�A';,•;:-;; - .,.,�,:;.•� WER,RU M ANNE 11024/007 10/24/1997 U. 1 0 1A Yr. Code I Assessed Value Yr. Code I Assessed Value Yr. Code I Assessed Value )V_ER,RUTHANNE&PAUL E 8921/161 12/15/1993 U I 100 F 1997 1011 149,300 996 1011 149,300 995 1011 149,300 'ER,RUTHANNE 234V 133 Q 0 Total: 149,300 Total: 149,3001 Total: 149 00 *9yi .Vi.a..•i y q" .tf v g IQXJ�S�ti;;,.� N ,�; •I d ._t <' ES "..,;1:,;�;;.,.. This signature acknowledges a visit by a Data Collector or Assessor _:;•L�' �. ': HEKi1S• 5 EIVZ'�".:�:t.. .�. !or TypelDescription Amount Code Descri Lion Number Amount Comm.Int. _ tFtM, $. nAnta Appraised Bldg.Value(Card) 30,700 Appraised XF(B)Value(Bldg) 0 Total: J Appraised OB(L)Value(Bldg) 0 <• �r:.�••,;,J`.rja�"•".�;: c,«�1,.i=:iw'«�.���{,•y�ilr; i �>: - _ .,'r, :� ..•. - _,�. A raised Land Value(Bldg)4,.f-r`Ysr'•t.. ,•.21ta! i...'��_ *�i` i +'t` �r-3;v`r{5.•�A w �.� .,�..•., ti• ��.•��`,,t� Y1�71'.�e'i.`..r x .x PP l+� g) 100 ,r,.. "r .11, x��1• � ;s, � Q7ESnrA w 4N�r 7 ,4?w :� ,:.i'�l>f vlr;•.}t ,G•6�1 i%+fs. Special Land Value '89 PICKED UP . kR CONVERSION Total Appraised Card Value 30,800 Total Appraised Parcel Value 152;500 Valuation Method: Cost/Market Valuation et Total Appraised Parcel Value 152,500 iiilaKw:n:• -�'�% 7:'!:S•.a lr{e::r y ,Y ..rf a:a r. e 1. k f. fit/+ ,,�jkT r1 i" -c :V.: ' fi: y r: -�J.o:r' rrsr r� 'i il'%"9.rg" ,•i- _ .,.� ..rS'(:� F., '.Ii✓G' I•+1lUY1L4dY[• RD.>». :'eiti ly;...?•,".t"' v`'r,r-J - . ..1.. .vx$ <a,.. �X. `,(.• ''' G� d . ,..ri:;k<.x, . ..,t,. _,:+ �..i:_.�.n,•. ;-,: ,:,r.:,. , . ''�...s.,. :,ar,�:VISIT/CHf11VGD 7IISTORY ':•:.. ..it ID r J Issue Date Y Type f Descri ilon Amount Insp.rDate %Comp. Date Comp. Comments Date ID Cd_ I Purpose/Result 2/15/1990 ME F a•i ,n is ..r.:'Q:; 3 y. :E�� n_,,, 9»'t,.Y;aL' ;. '.c+,•.. u�•+.;'.-:;•:•,i. ,7 r :.i,.'a:,.,.., •+ R7. w,;: .aft •+3. .�".�; a J G :.a � ..t 1 z,:n�)''` D��IiINEVAZ` E•'�T�. " '=9. .� At •y `�,,,. .l��. :`� .h:.,.l._,;e' - Use Code Deseri lion ZoneI D IFronraze De th Units I Unit Price 1•Factor SI I C.Factor Nbad. Ad'. Notes-Ad lS ecial PricinR Ad'. Unit Price Land Value .1010 Ingle Faro RF 2 0.01 SF 0.00 1.00 5 1.00 03AB 0.60 PCL(00)Notcs: 0.00 100 . T-I�f/•r��]f-_J 1i_l.- n nn l n __ w,_..r�_ r . �i•. �. - .-. ___ 1 �erty Locution: IM SCHOOL ST COT MAP ID: ,020/0901// n ID:917 Other ID: Bldg A 1 Card 1 of 2 Print Date: 03/20/200611 =fl: h T 7G• A-7 'Aa ,tt �• 4te' ii r.• l' b N 4 .r.'i•::' k -1 G 451 ,I .�i'• .r;.:1:2- .F."�.' "a;t•.RA�"C. tl�%Sf+�I:YAp' - Elemetit Cd C& Descriplion Commercial Data Elements /Type 6 Conventional Element Cd ICh.I Description 22 el 1 esidcntial Heat&AC c + + Frame Type Baths/Plumbing 16 WDK 1 es S 1!2 Stories • ipancy DD CeilingfWall 22 ooms/Prtns 19 rior Wall 1 14 Wood Shingle. Common Wall 2 WallHeight 'Structure 03 able/Hip Cover 03 AsphlF Gls/Cmp .:.. o-�• .,•z. '�. �. ...�1,�1 Okla.. - ior Wall I 3 lastered 6 2 lenient Code escription actor . BAS 2 for Floor 1 12 Elardwood Complex 2 Floor Adj Unit Location 3 16 Fuel 3 Gas 26 Type •orced Air-Duc Number of Units " l.pc 01 None Number of Levels Ownership 13 oos Bedrooms BAS romoms 1. 11/2 B I Full*f ! `' .'"` ..s � / 'KI�E::'Y.}l AIQIVii;;l ' "`112 75 UBM 2 l Rooms 9 Itooms. Unadj.Base Rate 48.00 FHS Size Adj.Factor 1.06501 13 Type Grade(Q)index 1.06 0 FOP 21 ]en Style 20 Adj.Base Rate 54.19 Bldg.Value Now - 94,616 27 Year Built 1910 Year Built 1970 rml Physcl Dep 27 lnnl Obslnc 0 . rP � 0l Specl.Cond. de t0 Ingle Fum 100 eel Cond% Overall%Cond. 73 eprec.Bldg Value 69,100 Og�O'UTB4LDI.1 Description LIB Units �UnttPrIce Yr. Dp-Rt %Cnd I Apr. Value Firepl-IC Sty II 2 3,200.00 1970 1 100 4,700 r. ;:- •��- -.,. ��. BU I:IjI'1Vd,' '.B= t '�f4°ICY•' E.G'QT•C11�'' �i�•:t' .:�av,�'.. � ..��.. 'de Description Uving Area Gross Area Eff.Area I Unit Cost Unde rec. Value 1S FirstFloor 1,105 1,105 1,105 54.19 59,880 IS HaH Story,Finished 428 611 428 37.96 23,193 )P Forch,Open,Finished 0 280 56 10.84 3,035 tM Basem=4 Unfinished 0 611 122 10.82 6,611 )K Wood Deck 0 352 35 5.39 1,897 Forty Location: 181 SCHOOL S'T COT MAP ID: 020/090/// on ID:917 Other ID: Bldg A• 2 Card 2 of 2 Print Date: 03/20/2006 11 •.•tl�' �'�} �•l���;)1 -.:1 - '.,:...W.. �'tl•::H_ .j%1 .I. r•Tv?T'Tr^..,:-'^'^^^ .--a;-',^' 4 •ti' .Y �•2'Ir" .5 .,,a�; Mg. .)' - .F ra�.i.� "r •1 ...:.J.�J.u:. .: _ =e,'r!.rJ .tt..:. O .., � .'.S'.!i�ll(1`i' ..d''• ♦:L 1`- 4i '..�.f ��h� .4�.• HV.'.� -.1 u r~; f r: �+ •N 'ZIC t 4. `�7, 1• b 7• F... .e.� -', ......,-.. .�. .:},..../'..a-`�I..�,IL S. -L..1Y � ti.0•,;yF.�` ''i�� �: '`•l":1., lia L}. ,��:.('�•�".I,4 _ 't�.?i '1'xta- al .qn::;�� �Jn JI:C'i�<"�".�.• ��e:S 9n1 �ir:r, -_ ..L 1 4,.ji�:h�'{'aT ...Y..�...+�.,. ...,s'I,+,E 1...��4�'e 7:'fts.,,. � `r..�, .a::i...i, •��..��'. ,,.i��7',yl't.F•�%f+ ,•lf;r�.•I•.-ice :nr..:„� — — Element Cd C& Description' Commercial Data Elements = lel Type 36 Cottage Element Cd, Ch. Description del 01 Residential s Heat&AC de 0C C Frame Type 20 Baths/Plumbing 3cs 1 1 Story :upancy 00 iling(Wall ooms/Prtns -nor Wall 1 14 Wood Shingle Common Wall 2 Wall Height If Structure 03 able/Hip If Covet 03 sph/F Gls/Cmp rior Wall 1 05 Drywall 2 etnent Code Description actor rior Floor 1 14 Carpet Complex 2 Floor Adj 0 BAS 3 Unit Location Fuel 2 Oil Type 9 ical umber of Units `rype 1 None 4umbd of Levels ro Ownership rooms 0 Zero Bedrooms i 3100ms Bathroom ;4 ;T'NL¢`7LKETrTx�IfL;` ,4Q4Z OIL d Rooms 0 nadj.Base Rate 48..00 ize Adj.Factor 1.66667 a Type Grade(Q)Index 0.94 :heu Style 20 Adj.Base Rate 75.20 Bldg.Value New 45,120 ear Built 1965 M.Year Built 1965 rail Physcl Dep 32 Funcal Obslnc 0 Bcon Obslnc 0 peel.Coad.Code 110 Single Fam 100 Specl Cond 96 vcrall%Cond. 68 eprec.Bldg Value 30,700 �. - .. Description LIB I Units Unit Price Yr. Do Rt 1 015Cnd Apr.Value 4 .i k i{.,r.i^' XI`vih+•� - T:T 'j� '..f v, i � L•i.Y4.S�r'rl'l >�4 � �`�1;1.7�!t'S�.;f',•'.r'•�1't�'K,�• ode Descri Non Living Area Gross Area E .Area Unit Cost Unde rec. Value AS First Floor 600 600 600 75.20 45,120 _ rage 1 of 3 Home: Departments; Assessors Division: Property Assessment Search Results New Search �.; New In Maps >> Owner: 2007 Assessed Values: LIMONCELLI, SUSAN 181 SCHOOL STREET Appraised Value Assessed Value Map/Parcel/Parcel Extension - Building Value: $ 241,700 $241,700 020 /090/ - Extra Features: $4,800 $4,800 Outbuildings: $ 900 $ 90..0 Mailing,Address Land Value: $237,300 $237,300. LIMONCELLI, SUSAN Totals $484,700 $484,700 181 SCHOOL ST COTUIT, MA. 02635 2007 REAL ESTATE Tax Information: Tax Rates: (per$1,000 of valuation) Community Preservation Act Tax $71.91 Fire District Rates Town Barnstable -Ali Classes $2:.10 $6.32 C.O,M.M. -All Classes $1.03 Commercial Cotuit FD Tax(Residential) $649.50 Cotuit FD -All Classes ' $1.34 $5.57 Hyannis-Residential $1.54 Personal Property Town Tax(Residential) $2,397 Hyannis- Commercial $2.37 $5.57 Hyannis- Personal $2.37 Other Rates Residential.Exemption"0%t W Barnstable-Residential $2.02 Community Preservation Act 3% of Town Tax W Barnstable-Commercial $1.69 W Barnstable-Personal $1.69 Total: $ 3,118.41 htt :'//wvww.town.barnstable.ma.us/assessins /assessO6/disnlavnarcel07ma.n.a-,n?Ma.nnar--020090&L,ketcliO=917 950.ing&.,,ketch... 1/9/2009 Page 2 of 3 9 Construction Details- Building Property Sketch & ASBUILT Cards Building value $241,700 Interior Floors Hardwood Property Sketch Legend This prop,erL-y contains multiple sketches. Style Conventional Interior Walls Plastered Please use the navigation below the sketch to browse sketches. Model. Residential Heat Fuel Gas Grade Average Plus Heat Type- Hot Water' Stories 1.1/2 Stories, AC Type None Exterior Walls Wood Shingle Bedrooms 4 Bedrooms Roof Structure Gable/Hip Bathrooms 1 Full+ 1 H Roof Cover Asph/F GIs/Cmp living area 1403 Replacement Cost $213832 Year Built 1910 Depreciation 20 Total Rooms 9_Rooms Current Building ID = 950 details on left , Land Additional Sketches 1 12 I Glick Here for print version that displays all sketches at once CODE 1090 Lot Size (Acres) 0.6 Appraised Value $237,300 AS Built Cards. httD://www.town,bamstable,,ma.us/assessing/assess06/diSolavt)arce107mai).aso?MaDDar=020090&Sketcli0=917 950.ipv_&sketch.., 1/9/2008 Vage 3 of 3. '� Vs, iew Interactive Assessed Value $237,300. ��� �.1_ Maps >> Sales History: Owner: Sale Date Book/Page: Sale Price: LIMONCELLI, SUSAN Aug 11 2005 12:OOAM 20147/244. $590,000 GROVER, RUTHANNE Oct 24 1997 12:OOAM 1 1 024/007 $0 GROVER, RUTHANNE & PAUL E Dec 15 1993 12:OOAM 89211 161 $ 100. GROVER, RUTHANNE 2342/133 $0 Extra Buiiding Features Code Description Units/SQ ft; Appraised Value Assessed Value FPL1 Fireplace 1 $ 2,400 $2,400 SHED 'Shed 140 $ 900 $900 FPL2 Fireplace 1 $2;400 $`2,400 Property Sketch Legend MS First Floor, Living Area FST Utility Area (Finished Interior) UAT Attic Area(Unfinished) BMT Basement Area (Unfinished) FTS Third Story Living Area (Finished) UHS Half Story(Unfinished) _ CAN Canopy FUS Second Story Living Area (Finished) UST Utility Area (Unfinished) FAT Attic Area (Finished) GAR Garage UTQ Three Quarters Story(Unfinished) FCP. Carport GRIN Greenhouse UUA Unfinished Utility Attic FEP Enclosed Porch PTO Patio UUS Full Upper2nd Story (Unfinished) FHS Half Story (Finished) SFB Semi Finished Living Area WDK Wood Deck FOP Open or Screened in Porch TQS Three Quarters Story (Finished) httn://Www.town.hamstahle.ma.u./assessing/assess06/di.�nlavnarce]07man.asn?Mannar=020090&Sketch0=917 950.ioz&sketch... 1/9/2008 „ a <<B ack Building Style Conventional Interior FloorsHardwood Model Residential Interior Walls Plastered Grade Below Average Heat Fuel Gas Stories T 1/2 Stories Heat Type Hot YpeAir Exterior Walls Wood Shingle AC Type None Roof Structure G2ble/Hip Bedrooms 4 Bedrooms , 1 Roof Cover Asph/F GIs/Cmp Bathrooms Full 1H Replacement Cost .$137369 living area 1563 Depreciation 20Year Built 1910 Total Rooms Rooms .. Building Style Cottage Interior FloorsCar pet r Model Residential Interior Walls Drywall Grade Average Heat Fuel Gas Stories 1 Story Heat Type Hot Air .Exterior Walls Wood Shingle AC Type None Roof Structure Qable/Hip Bedrooms 1 Bedroom Roof Cover Asph/F GIs/Cmp Bathrooms 1 Full Replacement Cost $76791 living area 600 Depreciation 17Year Built 1965 Total Rooms Rooms - http://www.town.bamstable.ma.us/assessing/assess06/prinLO6.asp?mappai=020090 1/9/2008 �' . tr �� E 1 VOLUME I PAGES 1-258 EXHIBITS 1-24 2 3 COMMONWEALTH OF MASSACHUSETTS 4 BARNSTABLE, ss . SUPERIOR. COURT CA No . 08-105 5 7 SUSAN LIMONCELLI , Plaintiff , * 8 * vs . * 9 TOWN OF BARNSTABLE ZONING BOARD OF 10 APPEALS , AND ITS MEMBERS , GAIL NIGHTINGALE, RON S . JANSSON, DANIEL M. 11 CREEDON, III , JAMES R . HATFIELD, SHEILA GEILER, JOHN NORMAN, JEREMY GILMORE, 12 KELLY KEVIN LYDON and the TOWN OF BARNSTABLE, 13 Defendants . 14 15 DEPOSITION OF THOMAS PERRY; . a witness 16 called on behalf of the Plaintiff, pursuant to the applicable provisions of the 17 Massachusetts Rules of Civil Procedure, before Sarah Harper, Professional Reporter 18 and Notary Public , in and for the Commonwealth of Massachusetts , at' the office 19 of Wynn & Wynn, P . C . , 300 Barnstable Road, Hyannis , Massachusetts , .on Tuesday, 20 August 5 , 2008 , commencing at 9 : 30 a .m. 21 22 - - - - - - - - - - - -- - - - --- - --- - -- - - - ALL CAPE COURT REPORTING, INC . 23 PROFESSIONAL COURT REPORTERS' 487 STATION AVENUE _ SUITE 2, 24 SOUTH YARMOUTH, MA 02664 (508) 420-7904 [�D g�i a - 100 1 understand it., . if she found out about a sale 2 and was aware of a violation, to stay away , 3 from it . Let the sale go through. 4 A. This is the only instance I can think of. 5 where it actually happened. Now, we.' re . 6 talking between .myself and Ralph, we ' re 7 talking probably ten years . . 8 Q. We ' re talking about the School Street , - 9 property now. 10 A. I understand that . 11 Q. I don' t care what happened with Ralph . 12 A. I understand that but - - 13 MS .. WEIL : Let him answer the 14 question. 15 A. it was extremely, extremely rare for it 16 to happen. . Look at .the pile 'of amnesty 17 letters you ,have there . Getting involved in 18 the middle of a transfer, literally, I think 19 it ' s like maybe a landful of ,times 20 literally. Maybe five times where it 21 actually. happened. 22 Q. In this , particul;ar case, it ' s likely that 23 Linda Edson came to you before the sale. took 24. place -and told you she was aware of the ALL CAPE COURT REPORTING, INC. (508) 420-7904 ,. 101 1 violation; correct? 2 A. Yes . 3 Q. And it was your instructions for her not to 4 do anything . Let the sale go through; 5 correct? 6 A. Correct , 7 Q. Did she tell you how she became aware of the 8 violation? 9 A. I believe she saw it on the M. L . S . 10 Q. And on the M . L . S . listing, did you have 11 occasion to look at it to see .that the 12 listing was showing the. property as a 13 multi-unit property? 14 A. On. this particular one? 15 Q. On this particular property: 16 A. I don ' t believe so 17 Q. But in any event , your understanding was 18 that she knew about it through the M. L . S . 19 listing; ,correct? . 20 A. Correct 21 Q. Did she indicate at all to you that' she knew 22 about the. property, too , because she had 23 been in it? 24 A. No . ALL CAPE COURT REPORTING, INC. (508) 420-1904 r 102 1 Q. She never told you that she had been in the 2 apartment at some point in the past? 3 A. No . Not at this time . 4 Q. At. this time frame . Now we ' re talking .prior 5 to the sale in July and August of 200.5 . 6 A. No . 7 Q. So what were the changes that you instituted . 8 following this incidence with, 181 School 9 Street? 10 A. In passing, I had mentioned to the Town 11 Attorney that - - I gave them the scenario of 12 Ralph. ' It was . Ralph ' s direction not to get 13 involved in that , and the Town .Attorney - - 14 MS . WEIL : Objection,. objection . 15 MR . PRINCI you stop him. Okay? 16 I didn ' t know where he was going with .17 Q. Let me ask the question differently, because 18 I don ' t want to know what your attorney told 19 you, and what I asked you was what changes 20 did you institute . as. a result of ,the events 21 surrounding ;181 School Street? 22 -A. That even if it was in the middle of a sale , 23 we would notify the present owner . I'f we 24 knew. who the broker was , we would make them ALL CAPE COURT REPORTING, INC (508) 42 0-7 904 s 103 1 aware that there is a problem. 2 Q. And how did you inform Linda Edson of this 3 change in policy? 4 MS . WEIL : Objection . Form of 5 question 6 Q. Well , how did you inform Linda Edson of 7 this? 8 A. Verbally. ` 9 Q. Is there anything in writing that you . 10 generated memorializing- this change? 11 A. No . 12 Q. Did you inform your Local. Building 13 Inspectors of this change as well as it 14 might relate to their duties as Zoning 15 Enforcement. Officer? 16 A. Yes . 17 Q. And just to be correct , . you have three 18 Zoning Enforcement Officers working fortyou 19 now. Three Local Building Inspectors . 20 Excuse me . 21 A. Yes . 22 Q. And all three were informed? 23 A. Yes . - 24 MR: PRINCI : Can we take a break ALL CAPE COURT REPORTING, INC. (508) 420-7904 I �� �� �� ,� `. . � II • t g . 46 1 BY MS . WEIL : .2 Q Well, for yourself, what due diligence steps 3 are prudent to take prior to purchasing any property? 4 A I think, working with your buyer broker and, 5 I think, relying on the assessor records as the 6 representative -- you know, as the key. representative 7 document for a property in the town . 8 Q Do you know that assessor ' s records do not 9 control or dictate zoning? 10 MS . LANDERS : Objection . 11 THE WITNESS : � No, I don ' t. That ' s not 12 my area of expertise . 13 BY MS . WEIL : 14 Q But you ' ve had a lot of experience in 15 purchasing property? 16 A I have purchased numerous properties , yes . 17 Q Okay. Have you ever heard the term in-law 18 apartment? 19 A Yes . 20 Q What does that mean to you? 21 A To me, it means an apartment where your 22 in-law is living, so someone related by marriage . guestho use mean to d what does the term g 23 Q And 24 your DIANE KELLY COURT REPORTING SERVICES (508) 771-8222 1 g t Sc kacA Barnstable °ft"�rOwti TOWN OF BARNSTABLE NI-America City BARNSTABU. i OFFICE OF TOWN ATTORNEY I I MASS. o 9° 1639 ,� 367 MAIN STREET °plfOMa HYANNIS, MASSACHUSETTS 02601-3907 2007 RUTH J.WEIL,Town Attorney' ruth.weil@town.barnstable.ma.us T. DAVID HOUGHTON, 1st Assistant Town Attorney david.houghton@town.barnstable.ma.us CHARLES S. McLAUGHLIN,JR.,Assistant Town Attorney charles.mclaughlin@town.barnstable.ma.us CLAIRE R.GRIFFEN, Paralegal/Legal Assistant claire.griffen@town.barnstable.ma.us PAMELA D.GORDON, Legal Clerk TEL.508-862-4620 •FAX.508-862-4724 November 30, 2009 Scott Nickerson, Esq.,Clerk Barnstable Superior Court, Civil County Court Complex, Main Street P.O. Box 425 Barnstable, Ma. 02630-0425 Re: C.A. No. BACV-2008-00105 Susan Limoncelii.v. Town of Barnstable; Zoning Board of Appeals, et al Our File Ref: #2008-0035 Dear Mr. Nickerson: Enclosed herewith please find for filing with the Superior Court the originals of the following documents { -- Defendants' Motion to Continue Trial with Certificate of Service; -- Plaintiff's Attorney's Opposition to Defendants' Motion to Continue Trial; -- List of Documents on Defendants' Motion to Continue Trial; and, --" Attorney's Affidavit of Compliance with Superior Court Rule 9A on Defendants' Motion to Continue Trial. Thank you. ` a •tea , ;Since ely yours; 4 � c (- m RJW:cg Ruth.J. Weil,.. own Attorney Enc.. Town of Barnstable t3 6, rn cc: Michael J. Princi, Esq. cc: Zoning Board of Appeals;Art Traczyk cc: VBuilding Commissioner,Thomas Perry [2008-0035\n ickltrorigi nalsmotcontinuetri aletc 113 009] COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BACV 2008-00105 -------------------------------------------------- ------ SUSAN LIMONCELLI, Plaintiff, V. 1 IJJI) LIST OF DOCUMENTS TOWN OF BARNSTABLE ZONING ON DEFENDANTS' BOARD OF APPEALS, AND ITS MOTION TO MEMBERS, GAIL NIGHTINGALE, RON S. CONTINUE TRIAL. JANSSON, DANIEL M. CREEDON III, ) JAMES R. HATFIELD, SHEILA GEILER, ) JOHN NORMAN, JEREMY GILMORE, ) KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE, Defendants. ) --------------------------------------------------------- The Defendants above-named, pursuant to Superior Court Rule 9A, hereby give offer to the Court its list of documents on the Defendants' Motion to Continue Trial in the above matter: (1) Defendant's Motion to Continue Trial which is scheduled for Wednesday, December 16th, 2009 at 9:00 A.M. be continued to a day certain by the Court, together with its Certificate of Service; (2) Notice of Defendant's Motion to Continue Trial; (3) Opposition by the Plaintiff s attorney has been submitted to the Defendants' attorneys to their Motion to Continue Trial dated November 24, 2009. Dated: November 30, 2009. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, ETC.,ET AL, & the TOWN OF BARNSTABLE, Defendants, By their Attorneys, RUTH J. WEIL, Town Attorney [2008-0035\1istofdocsondefendantzsmottocontinuetrial date 111909] 1 [B.B.O.No. 519285] T. DAVID HOUGHTON, First Asst. Town Attorney [B.B.O.No. 241160] CHARLES S. McLAUGHLIN, JR., Assistant Town Attorney [B.B.O.No. 336880] TOWN OF BARNSTABLE i 367 Main Street,New Town Hall Hyannis, Ma. 02601-3907 508-862-4620; 508-862-4724 Fax TO: MICHAEL PRINCI,ESQ. [B.B.O.No. 406680] Attorney for Plaintiff WYNN&WYNN,P.C. 300 Barnstable Road Hyannis, MA 02601-2513 508-775-3665, 508-775-1244 Fax CERTIFICATE OF SERVICE Barnstable, ss: November 30, 2009.. I hereby certify under the pains and penalties of perjury that a true copy of the above document was served upon the Plaintiff's attorney by hand-delivery on the above date. Ruth J. Weil, Town Attorney Town of Barnstable [2008-0035\listofdocsondefendantzsmottocontinuetrialdatet 11909] 2 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BACV 2008-00105 --------------------------------------------------------- SUSAN LIMONCELLI, Plaintiff, ) V. TOWN OF BARNSTABLE ZONING ) BOARD OF APPEALS, AND ITS ) DEFENDANTS' MOTION MEMBERS, GAIL NIGHTINGALE, RON S. TO CONTINUE TRIAL. JANSSON, DANIEL M. CREEDON III, ) JAMES R. HATFIELD, SHEILA GEILER, ) JOHN NORMAN, JEREMY GILMORE; ) KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE, Defendants. ) NOW COME the Defendants above-named and pursuant to Rule 9A respectfully request that the trial on this matter which is scheduled for Wednesday, December 16th, 2009 at 9:00 A.M. be continued. As reasons therefore, the Defendants state as follows: 1. Barnstable Town Attorney Ruth Weil, who is the only lawyer who has been involved in this matter,has had a sudden family emergency. Specifically, Ms: Weil's sister was recently diagnosed with a recurrence of breast cancer requiring a double mastectomy which surgery is scheduled for December 4, 2609. Ms. Weil's sister,who lives in Wynnewood, Pennsylvania, has two young children, ages 7 and 9, and Ms. Weil is needed to assist her sister in the care of these children from December 2, 2009 until at least December 12, 2009. 2. This family emergency prevents Ms. Weil from adequately preparing for the scheduled December 16, 2009 trial. 3.* There have been no previous continuances requested in this matter. [H08-003Mmotiontocontinuetrial date-111909] 1 WHEREFORE, the Defendants respectfully request that the trial scheduled in this matter be continued to another date certain beyond the date of December 16, 2009. Dated: November 19, 2009. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS,ETC.,ET AL, & the TOWN OF BARNSTABLE, Defendants, By their Attorneys, RXJTH J. WEIL, Too Attorney [P.B.O.No. 519285] T. DAVID HOUGHTON, First Asst. Town Attorney [B.B.O. No. 241160] CHARLES S. McLAUGHLIN, JR., Assistant Town Attorney [B.B.O.No. 336880] TOWN OF BARNSTABLE 367 Main Street,New Town Hall Hyannis, Ma. 02601-3907 508-862-4620; 508-862-4724 Fax TO: MICHAEL PRINCI,ESQ. [B.B.O.No. 406680] Attorney for Plaintiff WYNN&WYNN, P.C. 300 Barnstable Road Hyannis, MA 02601-2513 508-775-3665, 508-775-1244 Fax CERTIFICATE OF SERVICE Barnstable, ss: November 19, 2009. I hereby certify under the pains and penalties of perjury that a true copy of the above document was served upon the Plaintiff's attorney by hand-delivery on the above date. uth J. Weil, To Attorney Town of Barnstable [2008-0035umotiontocontinuetrialdate-,I11909] 2 6 COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT BARNSTABLE, SS DOCKET NO .2008-105 SUSAN LIMONCELLI Plaintiff V. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE, RON S. JANSSON, DANIEL M. CREEDON III, JAMES R. HATFIELD, SHEILA GEILER, JOHN NORMAN, JEREMY GILMORE, KELLY KEVIN LYDON and the TOWN OF BARNSTABLE Defendants Opposition of Defendants Motion to Continue Trial Date Now comes the Plaintiff in the above matter and opposes the Defendants Motion to Continue. As reasons for this Opposition, Plaintiff states the following: 1. On or about August 19, 2009 the Court issued a Pretrial Order providing ample time for discovery and preparation and scheduling the trial of the non jury matters for December 16, 2009. 2. The Defendants waited until October 14, 2009 and October 28, 2009 to request additional discovery which comprised of several depositions. 3. The Defendants in the action have continuously attempted to delay and stretch out the litigation of the zoning matters to the substantial detriment of the Plaintiff, who has owned, but not been able to occupy a rental apartment on her property since August 2005. 4. The jury waived case is relatively straight forward and primarily a document case, which documents have been provided to the Defendants from the onset of the litigation in 2007. 5. While the Plaintiff appreciates and understands the need for Defendant counsel to assist her family member, there is nothing to prevent her from preparing for the case between December 2 and December 12, and completing her preparation for trial upon her return on December 12, 2009. 6. There are at least two other staff attorneys at the Town of Barnstable that are experienced and capable trial counsel, who could defend the matter.on behalf of the Town. For all of the reasons stated above, the Plaintiff respectfully requests that the Court deny the Motion to Continue. In the event that the Court grants the Motion, then the Plaintiff respectfully requests that the Court place the matter for trial on February 10, 2010, which the Plaintiff understands (through conversations,with the Clerk) is an available date. Respectfully submitted: i icha J. mci, Esq. Wy & ynn, P.C. 30 Barnstable Road H� annis, MA 02601 (508) 775-3665 !nprinci@Mnnandnnn.com BBO#406680 Dated:. November 24, 2009 _ II CERTIFICATE OF SERVICE I, Michael J. Princi, attorney for the Plaintiff, Susan Limoncelli; hereby certify that I served the foregoing Opposition of Defendants Motion to Continue Trial Date by hand delivering copies thereof to: Ruth J. Weil, Esq. Town Counsel Town of Barnstable 367 Main Street Hyannis, MA 02601 this 24th day of November, 2009. Mich 1 YJ2�riLci, Esq. Wy ynn,P.C. 30 rnstable Road annis, MA 02601 (508) 775-3665 Mprinci@wynnandwynn.com BBO#406680 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BACV 2008-00105 --------------------------------------------------------- SUSAN LIMONCELLI, Plaintiff, V. ATTORNEY'S AFFIDAVIT TOWN OF BARNSTABLE ZONING ) OF COMPLIANCE WITH BOARD OF APPEALS, AND ITS SUPERIOR COURT RULE 9A MEMBERS, GAIL NIGHTINGALE, RON S. ON DEFENDANTS' MOTION JANSSON, DANIEL M. CREEDON III, ) TO CONTINUE TRIAL. JAMES R. HATFIELD, SHEILA GEILER, ) JOHN NORMAN, JEREMY GILMORE, ) KELLY KEVIN LYDON, and the ) TOWN OF BARNSTABLE, Defendants. ) --------------------------------------------------------- I, Ruth J. Weil, Town Attorney for the Town of Barnstable, and attorney acting on behalf of the Defendants in the above matter and pursuant to Rule 9A, respectfully a request that the trial on this matter which is scheduled for Wednesday, December 16th 2009 at 9:00 A.M.-be continued. As reasons therefore, the Defendants state as follows: 1. Barnstable Town Attorney Ruth Weil, who is the only lawyer who has been involved in this matter, has had a sudden family emergency. Specifically, Ms. Weil's sister was recently diagnosed with a recurrence of breast cancer requiring a double mastectomy which surgery is scheduled for December 4, 2009. Ms. Weil's sister, who lives in Wynnewood, Pennsylvania, has two young children, ages 7 and 9, and Ms. Weil is needed to assist her sister in the care of these children from December 2, 2009 until at least December 12, 2009. 2. This family emergency prevents Ms. Weil from adequately preparing for the scheduled December 16, 2009 trial. 3. Opposition by the Plaintiff's attorney has been submitted to,the Defendants' attorneys to their Motion to Continue Trial dated November 24, 2009. [2008-0035\attyaffiincompliancetorule9adeftsmotcontinuetrial-I 13009] 1 a WHEREFORE, the Defendants respectfully request that the trial scheduled in this matter be continued to another date certain beyond the date of December.16, 2009. Dated: November 30, 2009. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS,AND ITS MEMBERS,ETC.,ET AL, & the TOWN OF BARNSTABLE, endants, By pt �Attorneys, RUTH J. WEIL, Town/Attorney [B.B.O. No. 519285] T. DAVID HOUGHTON; First Asst. Town Attorney [B.B.O. No. 241160] CHARLES S. McLAUGHLIN, JR., Assistant Town Attorney [B.B.O. No. 336880] TOWN OF BARNSTABLE 367 Main Street,New Town Hall Hyannis, Ma. 02601-3907 508-862-4620; 508-862-4724 Fax TO: MICHAEL PRINCI,ESQ. [B.B.O.No. 406680] Attorney for Plaintiff WYNN & WYNN, P.C. 300 Barnstable Road Hyannis, MA 02601-2513 508-775-3665, 508-775-1244 Fax CERTIFICATE OF SERVICE Barnstable, ss: November 30, 2009. I hereby certify under the pains and penalties of perjury that a true copy of the above document was served upon the Plaintiff s attorney by hand-delivery on the above' date. Ruth J. Weil, Town Attorney Town of Barnstable [2008-0035\attyaffiincompliancetorule9adeftsmotcontinuetrial-I13009] 2 f Barnstable t"ET°w�� Tom' OF BARNSTABLE 9ARNSTABLE. OFFICE OF TOWN ATTORNEY MASS. A ' 9°oA t639• ��� 367 MAIN STREET rEDM�p HYANNIS, MASSACHUSETTS 02601-3907 2007 RUTH'J.WEIL,Town Attorney` ruth.weil@town.barnstable.m&us T.DAVID HOUGHTON, 1st Assistant TownAttorney david.houghton@town.bamstable.ma.us CHARLES S. McLAUGHLIN,JR.,Assistant Town Attorney Charles.mclaughIin@town.barnstable.ma:us CLAIRE R.GRIFFEN, Paralegal/Legal Assistant r Claire.griffen@town.barnstable.ma.us PAMELA D.GORDON, Legal Clerk TEL.508-862-4620 •FAX.508-862-4724 October 17,2008 Michael Princi,Esq. Attorney at Law WYNN& WYNN, P.C. 300 Barnstable Road { Hyannis,MA 02601-2920 0 Re: Limoncelli v. Town of Barnstable Zoning Bd of Appeals; l� et al, and Town of Barnstable - :Superior Court; CA No.BACV 2008-105 I` Our Ref. •#2008-0035 Dear Michael: Enclosed please find the proposed Disclaimer in triplicate duly executed by me on behalf of the Defendant, Town of Barnstable's Zoning Board of Appeals and the Town of Barnstable. It is our understanding that the Plaintiff herein has applied for a limited building permit without prejudicing the Town's defense in any way in this action and the issuance of said limited building permit will not be used in its pending action against the Town or its entities. Sincerely yours; . i I RJW:cg J. Weil, Town Attorney Encs. own of Barnstable t cc:. '' Thomas Perry, Building Commissioner 1_11A11 c0 :11 Niv 0? 130 8001 (2008-0035\Princiltr-3-disclaimer-101708] COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT BARNSTABLE, SS DOCKET NO .2008-105 SUSAN LIMONCELLI Plaintiff V. TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, AND ITS MEMBERS, GAIL NIGHTINGALE,RON S. JANSSON,DANIEL M. CREEDON III, JAMES R. HATFIELD, SHEILA GEILER, JOHN NORMAN, JEREMY ' GILMORE, KELLY KEVIN LYDON and the TOWN OF BARNSTABLE Defendants DISCLAIMER The Plaintiff in the above action has applied to the Defendant Town's Building Department for a building permit for renovations to the kitchen in the ' Main House. The Defendant Town has agreed to issue the limited building permit, provided that the issuance of said permit shall not prejudice in any way the Town's defense in the pending action, and the Plaintiff shall not use the issuance of the limited building permit for any reason to further its pending action. Agree Michael J. ci, Esq. Ruth Weil WYNN & ,P.C. Town of Barnstable 300 Barnstable Road 367 South Street Hyannis, MA 02601. Hyannis;MA 02601 (508) 775-3665 (508) 862-4MM BBO#406680 bBBO#5!9 ,�5 Dated: October 14, 2008 io 110T � oR PUBLIC VIEW