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0036 SUNSET LANE (3)
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'aa� iE •>'S .F1� fii,R ..�. � #�•'"`� t ; �i E t � t �t��n�� �� ��:_:txr Via• # ��� ^Q, i , i n T, - g�. 0. L � • n 4 4 { X A Yi g, ,R Y.w` s. , 7 t k 'fi yy�� •i �. rx ,: .' ;,+'f•r--, w.a,r .,rx' ,., •... ..: -...-.„ f',. . . k'" pt?'o--�� �. ,fir Guy p d , • a �I , 'ii yRV. 14 p L+yq 1myh 5 K M + r �� ����` i ,mod L Town of Barnstable _ Building w.�+«rm.-.w...-. �$ n " fi-" v-«,p.�ww.,m. n...^�,. s �..�^mat"` ee`"",md^"",aaf? """ix 1Posf This Card$o That it isEV�sitile Fiom the Street Approved Plans`'Must be Retained=on Job and this Cartl Must be Kept _ MASS 1 Posted Until Finalrylnspection Hates Been Made. {" ° . Permit W-here a Certficate'of:Occupancy is Required;sryuch:Building`'shatl Not be Occupieduntila'Final Inspection;has been;made. y Permit No. B-18-2046 Applicant Name: C& F REMODELING INC Approvals Date Issued: 07/06/2018 Current Use: Structure Permit Type: Building-Siding/Windows/Roof/Doors Expiration Date: 01/06/2019 Foundation: Location: 36 SUNSET LANE, BARNSTABLE Map/Lot: 301-036 Zoning District: RB Sheathing: Owner on Record: RUDDERS, RICHARD A&JOAN P l 'Contractor Name:' C& F REMODELING INC Framing. 1 i Contractor°License: 153792 Address: JP RUDDERS 1993 REV TRUST ' 2 BARNSTABLE, MA 02630d°�° f Est'.' Project Cost: $5,600.00 Chimney: Description: reroof Permit Fee: $ 120.00 Insulation: Project Review Req: ..... Fee Paid.. $ 120.00 _� Date " 7/6/2018 Final: Plumbing/Gas lulu Iding Official Rough Plumbing: This permit shall be deemed abandoned and invalid unless the work authorized by this permit is commenced'within six months after issuance. Final Plumbing: All work authorized by this permit shall conform to the approved application and the approved construction documents for'wFich this permit has been granted. All construction,alterations and changes of use of any building and structures shall be in compliance with the local zoning by-laws and codes. Rough Gas: This permit shall be displayed in a location clearly visible from access street or road and shall be maintained open for public inspection for the entire duration of the work until the completion of the same. Final Gas: The Certificate of Occupancy will not be issued until all applicable.signatures by the Building and Fire-Officials are provided on this permit. Electrical Minimum of Five Call Inspections Required for All Construction Work: a 1.Foundation or Footing Service: 2.Sheathing Inspection _ Rough: 3.All Fireplaces must be inspected at the throat level before firest flue lining is installed-_ 4.Wiring&Plumbing Inspections to be completed prior to Frame Inspection Final: 5.Prior to Covering Structural Members(Frame Inspection) 6.Insulation Low Voltage Rough: 7.Final Inspection before Occupancy Where applicable,separate permits are required for Electrical,Plumbing,and Mechanical Installations. Low Voltage Final: Work shall not proceed until the Inspector has approved the various stages of construction. Health "Persons contracting with unregistered contractors do not have access to the guaranty fund" (as set forth in MGL c.142A). Final: Building plans are to be available on site Fire Department All Permit Cards are the property of the APPLICANT-ISSUED RECIPIENT Final: IKE T Town of Barnstable *permit# Building Department Vee 6monthsfrom issue date snrwsTABLFE : Brian Florence , � Mtj� 9cbA 163Q. A,� Building Commissi9�nq ,��'1 lFD MA'1 200 Main Street,Hyannis,MA 02601 www.town.barnstable.ma.us JUN 2 6 2017 Oce: 508-862-4038 TO Fax: 508-790-6230 ,YV EXPRESS PERMIT APPLICATION - RESIDENTIAL ONLY Not Valid without Red X-Press Imprint Map/parcel Number ©3 Property Address_C U J,� SgA ' S�A V Residential Value of Work$ S 6W QC/ Minimum fee of$35.00 for work under$6000.00 Owner's Name&Address Contractor's Name Ce,. Telephone Number 0 a 3 f Home Improvement Contractor License#(if applicable) JS 3 Email: Construction Supervisor's License#(if applicable) 10 it D *LWorkman's Compensation Insurance Check one: ❑ I am a sole proprietor ❑ I am the Homeowner ❑ I have Worker's Compensation Insurance Insurance Company Name,. C� Workman's Comp.Policy# (ji e'_ it Copy of Insurance Compliance Certificate must accompany each permit. Permit Request(check box) M.Re-roof(hurricane nailed)(stripping old shingles) All construction debris will be taken to t ❑Re-roof(hurricane nailed)(not stripping. Going over existing layers of roof) ❑ Re-side ❑ Replacement Windows/doors/sliders.U-Value (maximum.32)#of windows #of doors: *Where required: Issuance of this permit does not exempt compliance with other town department regulations,i.e.Historic,Conservation,etc. ***Note: Property Owner must sign Property Owner Letter of Permission. A copy of the Home Improvement Contractors License&Construction Supervisors License is requir SIGNATURE: Q:IWPHLESTORMSTMESS2017 1 2Ize Commortrrveakh of Massachusetts Deprartiaerit o,f rudus-triialAccid-ads Office of 1m.w3 igatiom r 600 Washington Street -- Bastvn,MA 02111 Irwin maxmgvvfdia VTcwkers' Campensafion Insurance Affidavit:Bider-dContr-a.ctursMect cmns/Phambers Ecant Infcirmataon Please Print Name(Basinemaz Acl&ess: Cifgl tetef ig s- Phane u"' ��i' a 9 Aue you an employer?Ch the appropriate box: ' T of project r Type o F roJect(required): I_❑ I am a employer with $ ❑I am a general confractur and I 6. ❑New eonsfxacfion employees(fa andforpar�time)-* liave hired the sub-contmctors 2.0 I am a sale propaietor•orpartaw- Tisfed cm the ached sheet. y- ❑Remo&ling ship and have no.employyees These sob-contractars have g-,❑Demolition wading forme in any capacity. employees andhave workers' 9. ❑Building additic a [NO ty dr']� - comp.finance MET_menranml requited] 5. ❑ We are a eogxwAfion and its 14❑Electaical repairs cr adc5fions 3.❑ I am fiomeovcmer doing all work officers have exercised don r 1L❑Plumbingrepairs or additions. myself[Na wo6mm'camp- right of exempf bn per MGL 12-❑Roofrepairs i„su,•anrei ed-]i c.152,§1(4�andwe have no employees-[NO wormers• 13-0 Other comp-i„mmmnce Wired_] ;Any L" csutdatcbed6boar1 Elsa Mooftheswfl=b9 w9wvdngrheavmaerecampensatiaapaEcyin5mtedoa_ Hameawnem who sabndtdtisEfSdat rmHumgtheyam&=gOwn&sudtfieahEmoutsidecontrvcti,m I snbn&anewaffidnitindiatiznosadi fCoat:acfa6tfiz[ehecictb¢5 boa must sttacbed=addid— sheet sbaKingtbenameof the sub-cortscta sand statewbedm or not fhase eakitiesbne employees.U the sdb-caatxdmsfias a mnp1cyee_,they mustprouide their worke&camp policy numbeL I am an emplayer flint is prauidiag warkers'campew ii 7n inmirance,for eery enrpL?jwes $etoav is ff epo icy and joh site in,forazation. Insurauce Company Nam: Lq PoEey�Cr Self-i�Iia_� ' Fxpiratioa Dade: Job Site Addres ��4 l U�l/W t Al Attach a copy of the workers'corapensationpacy-declaration page(showing the policy number and expiration date). Faiimm to secure coverage as requiredunder Section 25A of MOL c.M can lead to the imposition of criminal penalties of a fine up to$1,500 SOU anWor one-year m- q=- one as well as cio peualfies.ih the form of a STOP WORK ORDERand a line of up to$MOO a clay against the violator. Be advised that a copy of ibis statement maybe forwarded to the Office of laavesirgations o€the DIA for insurance coverage verificatim Ida hereby udgr tha prigs ands psuahYzs afF&jWy,Media in,fonwidimtpivilwW a bats is hm and c arrect celiEf r �j Simature: Late a v Phone ik '1 0jg a1 mw onl}. Do net Esrke inn t ds areQ,€rr be campleted by ciip ortown official City or Town: Permhfl icense# hsaing Aibority(circle one): L Board of Health I Bm&2g Department 3.Grown Clerk 4.Electrical Inspector 5.Plumbiiag Inspector 6.Othrer C'onbct Person: Phone#: ormati.on and has ctions j chus Massaetts General Laws chapf�152 regoiras all employers in provide workea�compensation for their employees. '' P tD this fie,an Noise is defined everypersaniu me service of another tinder any contract oflihe, eXpress or implied,oral or writ.", An Nays_is defined as"an mfiyid A partnership,associEti&A corporation or other legal espy, or arty ore two or m of the foregoing m a Joint Vie,and iurbEmg the legal seln�seniatives of a deceased employer,or the receiver or t=tee of an mdiyidnal,pajftj=bzp,association or other legal entity,employing employs However fhe owner of a dwelling house having not more t3Ml three apartmeats and who resides therein,or the occupant of the - dwelling house of anoffier who employs peons to do mace,r onshmc ion or repair WDrk on such dwelling house or oa the grotmds or bm-k mg apprnr�theret o shaR not bmanse of such employment be deemed to bean employer." MGL chapter 152,§25C(6)also stains that"every state or kcal rs�agency shall withhold fhe issuance or renewal of a Iicease or permit to'operate a busmess or to co btuldmgs in the comunonwealth for airy apphcantwho has notproduced acceptable evidence of cdmpEan e with t1z-e hLsurznce.covexageregaxr Additionally.MGL chapter 152,§25C(7)states-Neither the conanamwealth nor gay ofits political subdivisions shall ets intD any contract for the pm-RyimaT—'m ofpublio work=otI acceptable,ev eidenc of compliance,with the insurance.. recf==ents of this d apira,have been preserdsdto the cnnfiu�,a ao hOiitY' App1icants ' Please fill oirt the woII=, compensation affidavit completely;by checking me boxes that apply to your sifnation and,if n M:L am dd ply sob-co�ractor(s)nane(s),arrss(es)md phone xaimber(s) along v,*iL their cemcFacate(s)'of or Limited LabltyPartps(LLP)wihno PtoYees other.than.the Li n L AY ComPames(LLC members or par[nen,are not regohed to carry wollzers'compensation iasm--ce. Eau LLC or LLP does have employees,apolicyisregaaed. Be advised that this affidayitmaybes limift-dtotheDepa-frneutofladusfrial Accidents for couf=ation of insmmnce coverage Also be sure to sign and date tim affidavit. The affidavit should be-retrmmedto the city ortowntbatthe application for fhepermiforEceuseisbeingrequestr nottILeDepmtneatof L,ams tag.Ar-ad�_ shouldyou have oily gnestons regarding the Iaw or ifyou are rued to obtain a workers' compemsation policy,please call the Department at the number listed below Self-msmed companies should cater their s elf_fi ev=ce license number on the appropriate Ime. City ar Town of cials Please be smre that the affidavit is completes and prirdedlegibly- The Departmenthas provided a space at the bottom of the affidavit for you to fiIl out in the event the Office of Iuvm-dgations has to con actYou regacdmg the applicant Please be sure to fill in the permdtllicrose n-o mber which will be used as a reference number- In addition,an applicant thatmust submit multiple penni/license applizmfions in any given year,need only submit one affidavit Indicating cament policy info m dioa(if necessary)and tm('er`Job Site Address!*the applicant should writes"alit locations n (G'tY or town)--A copy of the-affidavit that has be=of stamped or maimed bythe city or town maybe provided to the " applicant as proofflet a valid affidavit is on file for Rd= 'permi s or licenses_ Anew affidavit must be filled out ca rh year.-Where a hoiae owner or citizen is obtaining a license or permit notrelated to any bvsh=s or commercial veazfUre (i-e_ a dog license or permit to burn leaves etc.)said person is NOT regoiced to complete this affidavit The Office of Tnvestigatans would 13IM to thank you in advance for your:cooperation and should you have any questions, please do not hesitate to give vs a call- The,Dap arfineat's ad&ess,telephone and fax n:iinber. - Camman tt�[of Mac.imdfN - • -• } r � T�ega�m�nt 4f 1'nd�ia1 A�i3�.ts - . _ as fzn=M&o�11I T(,_L 14 617: -4 (,-xt 406 W 1-977-MA&iFR Fagg 617 727 7749 IZeviscd 4-24-07 -ma.sg-go-7 I Section 12—Department Sign-Offs Health Department ❑ Zoning Board(if required) ❑ Historic District ❑ Site Plan Review(if required) ❑ Fire Department ❑ 1 Conservation ❑ ' , ' Y For commercial work,please take your plans directly to the fire department for approvab Section 13—Owner's Authorization as Owner of the-subject property hereby authorize . F E ' to act on my behalf in all matters relative to work authorized yb this building permit application for: .� k3yr ACT L `��ZNs�rLc (Address of job) Signature of Owner date N b'D e fit.5, Print Name i i Lest undated:2/92018 Application Number........................................... Section 9—.Construction Supervisor a r Name C. t,2 G Telephone Number S N Address ZD �.'iv f ,yC�'City State Zip f License Number License Type CY L Expiration Date 9 r r Contractors Email Cell# I understand my responsibilities under the rules and regulations for Licensed Construction Supervisor in accordance with 780 CMR the Massachusetts State Building Code. I understand the construction inspection procedures,specific inspections and documentation required by 780 CMR and the Town of Barnstable.Attach a copy of your license. Signature Date Section.10 —Home Improvement Contractor Name � .--� Telephone Number Address City State Zip Registration Number Expiration Date d 01 I understand my responsibilities under the rules and regulations for Home Improvement Contractors in accordance with 780 CMR the Massachusetts State Building Code. I understand the construction inspection procedures,specific inspections and documentation required by 780 CMR and the Town of Barnstable.Attach a copy of your H.I.C... Signature Date 126 -a 25_- 1A Section 11 —Home Owners License Exemption Home Owners Name: v C�&AA.S Telephone Number Cell or Work Number I understand my responsibilities under the rules and regulations for Licensed Construction Supervisor in accordance with 780 CMR the Massachusetts State Building Code. I understand the construction inspection procedures,specific inspections and documentation r y 780 CMR and the Town of Barnstable. Signature 9-• Date 06-Z2 - 13 APPLICANT SIGNATURE Signature Date 0C 2�'ld Print Name o v Telephone Number a 3 7ell, f y E-mail permit to: T v I Commonwealth of Massachusetts �t Division of Professional Licensure Board of Building Regulations and Standards Constyola,'br Is,Up, rvisor CS-104107 15 E4 ires. 08/25/2019 .( CARLOS H Ff6UEIRO, 0Ar - = 20 CAPTAIN f1fOYES[20 SOUTH YARMQ[I�TH M jo Commissioner Cj L r r. . Fsegi trat:.n valid-for inc viduN use only oe*ore the expiration rtate. ifaund return to: Crffice o f ConsurrfOr Affairs as)J Business Regulation " r..;'. 1,3 Park Pl"axa-,,xciai4e 5i7t) Boston,MA 6116" . 4 d#varid aignat'tr2 - ja4'tflceof C ,sumArAifairs&BusinesE IMPROVED9FNT CONTR%�NT`-/PE:Corporation P is#Fwtion Expirati01/07/2Q " C&F.REMODEL( r.. 1 Cados Figueiroa` 20 Captain Noyes�F�e#: t S.Xarmeut ,MA�0 Q4 °F Undersecret-==f , f fr i From the Zoning Board of Appeals Minutes of May 5, 1999 Appeal Number 1998-37-Remand-Dugas Board Members hearing this appeal were Gene Burman,Ron Jansson,Gail Nightingale,Tom DeRiemer,and Chairman Emmett Glynn. Attorneys Gerald Garnick and Lois M.Farmer represented the applicant,Joseph F.Dugas,who was present. Attorney James H.Quirk,Jr.represented Richard Rudder,the owner of the property in issue,who was also present. A memorandum of support was submitted by Attorney Garnick. Attorney Gamick addressed the Board. He reviewed the Remand Order and stated the Court has ruled that the house the Rudder's had on their property was a nonconforming structure because it was an undersized lot. The Court also ruled that the Building Commissioner was incorrect in issuing a building permit. The Court ruled that the only way the structure can be built on the Rudder's property would be if it were a reconstruction. It has to be a reconstruction and the Board has to determine if this dwelling is a reconstruction. In Attorney Garnick's opinion,this is not a reconstruction because the new dwelling must be the same height,the same area,and in the same footprint as the previous dwelling. The Rudder's new property does not meet this criteria. This is not a reconstruction and therefore should not have been built. The property does meet all the setback requirements but Attorney Gamick stated that was not important. The memorandum submitted includes a chart with the new and the old square footage of the dwelling(s)-to be used for comparison,the building permit,and the site plan showing the new location of the dwelling which is not on the footprint of the old building. Attorney Gamick also submitted three cases for the Board's review;(I)William M. Berliner v. Michael L. Feldman, (2)Frank Lomelis v. Board of Appeals of Marblehead, and(3)Daniel J.Dykens and Charles Kelley v. City of Quincy Zoning Board of Appeals et al. The Board asked Attorney Gamick how the abutters are aggrieved by this new dwelling. Attorney Gamick stated the mass of the house is greater than what was previously on the site with a second story and now their view is blocked When this project was before the Old King Highway Historic Committee,the Rudders presented a plan and that plan was not abided by with respect to location. The Rudders changed the location on the property and the result is the Dugas's view is obstructed. The Board reviewed the Remand Order[for this appeal]by Judge Green. That order states,"The proposed reconstruction may be allowed only if the board finds that(i)the proposed new dwelling does not intensify the nonconformity...." The Board asked Attorney Garrick to explain how the proposed new dwelling would intensify the nonconformity. Attorney Gamick stated that this is not a reconstruction so you can not go any further regarding whether or not there is any intensification,once it is determined that this is not a reconstruction. Earlier in the Remand Order,it states,"First,the dwelling may be allowed if the new dwelling is a`reconstruction'." Because Mr.Gamick does not believe this is a reconstruction,the other requirements do not matter. The Board questioned if Judge Green gave deference to the Town of Barnstable Zoning Ordinance. Attorney Garnick felt he did give deference to the town's bylaw because he ruled that the structure was a nonconforming structure because it was on an undersized lot. He determined that if the house is torn down it can only be reconstructed. Attorney Garnick agreed that if this lot were a vacant lot,this house(probably)could have been built. But,Attorney Garrick stated this case is difference because this was not a vacant lot and any new house that is built,must be a replica of the previous house. The neighbors have rights as to what type of structure is built on the abutting lot-they have rights to their neighborhood. Attorney Gamick stated a person can not just tear down a house and rebuilt it-it must be a reconstruction. Board Member Ron Jansson did not agree. If that were the case-then every house that has been built on a nonconforming lot that is otherwise expanded-and still complies with the zoning requirements is in essence illegal. There is a difference between an expansion and a reconstruction and Attorney Garnick stated this is not an expansion, this is a reconstruction and the Zoning Ordinance does not address the issue of reconstruction. The owner does not have the right to a reconstruction because the Zoning Ordinance does not give them the right to do so. The Board asked a hypothetical question of Attorney Garrick-if the Rudders had reconstructed the exact same house and then added on to it,would that have been allowed. Attorney Garrick said it probably would have been allowed- even though it seems ridiculous-it would have been allowed under the Zoning Ordinance. But,that is not what the Z.B.A.Meeting-May 05,1999 66 Rudders did. Attorney Garnick reported that other towns allow for reconstruction,but the Town of Barnstable Zoning Ordinance does not. As to what portion must remain of the old structure to allow for a reconstruction,Attorney ` Garnick stated that is up to the Building Commissioner. In this case,the Building Commissioner allowed the complete destruction of the previous home and then allowed a new dwelling to go up and that is not a reconstruction. If a property has an ocean view it is more valuable and by the Rudders placing their house in this new location and not on the same footprint,they have blocked the Dugas's view and that affects the value of their[Dugas's]home. Attorney James Quirk represented the owner of the property in issue,Richard Rudder. Attorney Quirk submitted a memorandum and copies of photographs. He addressed the Board and reviewed the Remand Order. It is his[Mr. Quirk's]view that the Court looked at the Zoning Ordinance and found that the word"reconstruction"was not in the Zoning Ordinance. Had it been there,they would not be before the Board. Next,the Court said that because the word reconstruction was not in the Zoning Ordinance,one must look at MGL Chapter 40A, Section 6. That section allows the Building Commissioner to make a determination that if the new structure is not substantially more detrimental to the neighborhood than the former dwelling,the Building Commissioner has the authority to allow the construction to go forward. As to the subject property, it is not on the same footprint because the Rudder's made concessions as to its location at the time of the Old King's Highway Historic District Committee Hearing,to provide a view for the Dugas's. The house was moved back from the street and moved further away on the lot. The lot is similar in size to most of the other lots in the neighborhood. They are all around 10,000 square feet. The original footprint consisted of 1315 square feet and the new footprint(minus the garage)is 1260 square feet. The original house had three bedrooms,the new house only has two bedrooms. The property is not substantially more nonconforming. There are no setback problems in this case. Attorney Quirk reviewed several court cases dealing with nonconforming structures,new structures, . Attorney Quirk referred to this neighborhood as an area of transition. The abutting property-the Dugas's lot-has a two story house. On this street-Sunset Lane-there are thirty-four(34)house lots,most of them are 10,000 square feet. Twenty-one(21)of the thirty-four(34)lots have two story homes. That is 64%of the lots. In the entire subdivision,there are four(4)streets with eighty(80)lots,seventy-five(75)of the lots have been built upon and of those lots,thirty-six(36)have two story houses or 48%of the lots have two story homes. The Rudder's home is consistent with the neighborhood. As to the Remand Order,Attorney Quirk believes that Judge Green has indicated that if the Rudder's new house is not a substantial expansion of a pre-existing nonconforming use,then it can be allowed. If you look at the cases that deal with MGL Chapter 40A, Section 6,that Attorney Quirk cited,he stated that if the Board makes the determination that this is not a substantial expansion,then the issue is over. If the Board does not make that determination and goes on to the section clause of Section 6,then the Board should look at the neighborhood and the impact of the structure on the neighborhood to see if it is substantially more detrimental to go forward. Attorney Quirk reported that the case of Cox v. Board of Appeals of Carver states that extensions and changes to the nonconforming structure are allowed if the extensions or changes themselves comply with the Zoning Ordinance. In the Rudder's case,they do comply because they do not need any relief. Attorney Quirk reminded the Board that Mr.Rudder went to the Building Commissioner and asked what to do and how to go about this proposal. He did exactly what he was told to do. The Building Commissioner made the determination that it is not necessary to"pretend"by creating one wall while building a whole new structure in an effort to get around the Zoning Ordinance. This was a single family residential dwelling and it is staying a single family residential dwelling. The Board asked Attorney Quirk how he would deem this work a"reconstruction"as defined in the Remand Order of Judge Green. Attorney Quirk responded that reconstruction is not replication. The court cases demonstrated that replication is not what they meant by reconstruction._ Some buildings were on the.same footprint but went rip as two stories not one story and were considered reconstruction but they can not be considered replication because they are two stories not one story. There are other cases where there was a change in the footprint but the court has determined it was a reconstruction. In his opinion,replication is not what the court meant by reconstruction. If replication was what was intended,then that would be in the Zoning Ordinance. Attorney Quirk believes the Rudders new home is a reconstruction because it is the same use now as was the use before-a single family house. Use is part of how Judge Green gets to the issue of reconstruction. Attorney Quirk also stated that since there is no need for zoning relief then this can be construed as reconstruction under Chapter 40A,Section 6. They are not seeking a Variance or Special 2 Z.B.A.Meeting-May 05,1999 Permit to reconstruct this home. The house is otherwise in compliance and relief is not needed for any intrusion-such as setbacks. In Attorney Quirk's opinion,Judge Green never made a determination that this could not be considered a reconstruction and that may be a reason why this was remanded back to the Zoning Board of Appeals. The Board has ` the ability to rule as to whether this is a reconstruction after they view all the relevant materials. If the Board finds this is a reconstruction,it can allow the structure to remain if the Board determines the new dwelling would not intensify the nonconformity and is not substantially more detrimental. Attorney Quirk submitted letters from ten abutters that are in support and do not find this property detrimental. He also submitted three series of pictures. Section three includes"views"from the Rudder home and the Dugas home and views from the street. Public Comments: Steve Santos questioned if a house could be moved anywhere on a lot and stated that a view-even if it is only 2 feet-is worth a lot of money. Marcy Santos stated she had a problem with the Building Commissioner but the Board informed her this was not the proper forum. No one else spoke in favor or in opposition to this appeal. Attorney Gamick reviewed the Dyken's Case which states that reconstruction is treated the same as rebuilding. Even though this is a"rebuilding"in his opinion it ends up to be a new dwelling which is not what reconstruction means. The Board asked Attorney Gamick if(for the sake of argument)they disagreed with the Building Commissioner's decision in issuing a building permit,could they now issue a Special Permit if the criteria is met. Attorney Gamick stated the problem is that the burden has been put on the abutter to do the work that should have been done by the owner. The owner(in Attorney Garnick' opinion)should have been told that he needed a Special Permit to rebuild the house. The Board next asked Attorney Gamick if there was something to preclude the Board from issuing a Special Permit-if that is what the Board determines is needed to allow the structure to remain. Attorney Gamick said the Board can not make that determination without being arbitrary and capricious that this is a reconstruction under the present law. That is the point and if the Board can not do that-then the house can not be built. In Attorney Garnick's opinion,everything presupposes that this is a reconstruction. The Board told Mr.Gamick that they did not necessarily agree that is what Judge Green meant.This is an appeal of the Building Commissioner and not a Special Permit application. Attorney Gamick stated the Remand Order said the Building Commissioner had no right to issue a building permit because the Remand states,"...the proposed new dwelling is not within the commissioner's approval authority..." It was decided to continue this appeal to June 30, 1999 at 8:00 PM. This continuation is to allow the Board time to , review all the materials presented this evening. The public comment portion of this hearing is closed. Appeal Number 1998-37-Remand-is continued to June 30,1999 at 8:00 PM. 3 QUIRK AND CHAMBERLAIN, P.C. 1:�__4ttoump and CounsEffo¢s at-'aw 99 WILLOW STREET JAMES H.QUIRK,JR. POST OFFICE BOX 40 ROBERT C.CHAMBERLAIN BARNSTABLE OFFICE ,. YARMOUTHPORT, MASSACHUSETTS 02675-0040 PAMELA B.MARSH POST OFFICE BOX 92 THOMAS C. PAQUIN 508/362-6262 THOMAS J. PERRINO FACSIMILE 508/362-6060 BARNSTABLE, MA 02630 ANASTASIA WELSH PERRINO 508/362-4314 OF COUNSEL WILLIAM E.CROWELL,JR. June 16, 1999 Ralph Crossen, Building Commissioner Department of Health Safety and Environmental Services Building Division 367 Main Street Hyannis, MA 02061 RE: JOSEPH AND EDITH DUGAS VS. RICHARD RUDDERS AND JOAN RUDDERS 36 SUNSET LANE, BARNSTABLE, MA (ZONING BOARD OF APPEALS) OUR FILE NO. 927/8533 Dear Mr... Cros sen s.. Please be- advised that as a result; of- the presentation before the Board of Appeals -on' May 5, 1999, Attorney 'Garnick took the.'posi.tion_that the definit1" ' i the word "reconstruction" _was really,_replication`. ' Therefore, the Rudders were . not in compliance w_ ith"Chapter. 40A or the Barnstable By-law because the new house is not the same as the original house and- not -on the same foot print. This position . is clearly disingenuous as the house was moved back from the street at the request of Mr. Dugas. On the issue of reconstruction, we have previously discussed the issue of saving a wall and building an entirely new house for compliance with the By-law. If it is of significance, the Rudders did_, in fact; save a portion of their original home and it is incorporated into the new house. The bow window was salvaged for the purpose of incorporating it into the structure in the same location as the window existed in the original structure. Both sides presented their position relative to the intent of the Judge' s. decision. I. argued' that you, as the Building, Commissioner, had the authority under the. provisions of...Chapter 40A .to make a. decision as to. the impact of the,'new: structure on '.the lot .itself: and,'_ secondarily, on the- neighborhood:- w If",you; ;"as ;the,-,Building Commissioner,, ,find. that the' new structure is notysubstantially' more non-conforming-,or that if. it is substantially more non-conforming; it still has no detrimental impact on the neighborhood. If you find that the new structure is not substantially non-confirming or more detrimental, then the matter is resolved and no Board of Appeals relief is required. I QUIRK AND CHAMBERLAIN, P.C. Ralph Crossen, Building Commissioner June 16, 1999 Page Two My argument was that since the new structure was smaller in its habitable space, it did not require any zoning relief and, is similar to other structures in the neighborhood then the house was not more non- conforming. I also argued in the alternative that since the neighborhood was transforming itself from single story homes to two-story homes, the Rudders' home could not be more detrimental to the neighborhood. Mr. Garnick was asked whether the Rudders should be punished because they would be allowed to construct their home if the lot was vacant and not be allowed to construct the new house because of the existence of the prior structure. He said that the existence of the prior structure should prevent the present structure. He also argued that the house should be removed and then the Rudders could apply for a special permit or a variance. After the presentations, the only people to support Mr. Dugas ' position were his son-in-law and daughter, although, they failed to identify their relationship to Mr. Dugas. The Board closed the hearing and indicated that the matter would be scheduled on June 30, 1999 at 8:00 p.m. for deliberation and make its decision. As more information becomes available, I will advise. Very truly yours, QUIRK CHAMBERLAIN, P.C. James Quirk, Jr. JHQ:ca dl cro/f9 r ,. i � F _ . . ��f ._,4 ,�i, ��� "�< ��� `, li� e ��r '` � ��,� }, t.I+ ` '� t F i'� ti�� 1 �,� � f �1 . - �,� �_ .,� i+� ` � ... �a ,� ��� f `. , � -� ��� _ +;r �; , � - j{i ���i .. � � (� ,� ��{b . . ��I ' .. � __. _ ti ii� ��r a � - la +f, t. �Y �� I `. • - I�; . R , _ if �. . .., .- ! �� - � .. ,� a ..4 .. i ,� ., ,� ' i`�` . ;t' ., � ___ � • ,�...,i';� !L.?3 ,I��,fI.'����III�•�111�I I'VI9 I�Ll''i 2�i 2PhI FII 1: WI fII'I v, `7. 19981O. JA1111,1111"I NUTTER, MCCrEV1 vI II I G,!PIIfNIHt�hI:I�Id I PI II %I 'I 11III 1IVIliI I 11,�I1I , a4 ,I� �!�7 I.! ,: I Rule II&I RULES OF CIVIL PROCEDURE need not comply with the requirements of seal and taste establish(1)an irremediable deprivation of his rights during (g} presarlbed by Part II, c. 6, art. 6 of the Massachusetts pendency of the action; and M) the likelihood that he will of thi Constitution, The w6rcernent of liability against the surety ultimately succeed on the merits. Under Rule 6fi2, these was i is not a new action. While notion may be the means for provisions control the pre-trial recovery of property. bringing a defendant into court for a1 purposes connected Unlike Rule 65(0),Rule 66 8 requires security in all cases, (4) with an already commenced action,an order of notice to not a although R leaves the amount a the determination of the Wh1 writ within the mearnirg of Part DI, e. S. art. fl of the court. Beea'.ue the pre-trial recovery of property is so (b) Massachusetts Constitution Taplin v. Atwater, 297 Mass. ccnstdtationally sensitive,security should be mandatory. On ga gF 802,806,8 N.E.2d 786,788(1887). the other hand,the rule does not impose an arbitrary doUar requirement(as,for example, twice the value of the proper- (6) f RULE 65.2 REDELIVERY OF ty), Sometimes defendant has wrong lly taken or withheld with GOODS OR CHATTELS plaintiffs property as security for a disputed debt less than T the value of the property. Certainly, a bond in the amount In an action for the redelivery of goods or chattels of the debt is adequate. Q'1e brought pursuant to General Lawn c, 214, 4 8, an (d order that a party redeliver goods or chattels may be Iteporter'e Note`-1996 iudo made ex parts, pursuant to the provisions of Rule With the merger of the District Court Rules into the befo db(a) and eudoting law governing the issuing of re- Mase.R.Civ.P., Rule 66.2 has now been made applicable to the straining orders,or With notice and hearing,pursuant the District Court, However, the applicability of this rule to ache straining Rule 65(b)and axis la ova the issuing of the District.Court does not serve to grant jurisdiction to the 8nst g rni �S District Court over actions to compel redelivery of goods preliminary fr�unotSons. N restraining order or pre- pursuant to t).L.c.214,1 8, This statute grants jurisdiction of t? liminw7 injunction for the redelivery of goods or only to the Supreme Judicial Court and the Superior Court, parr chattels shall issue except upon the applicant's giving See Rule 82. app. security, in ouch sum as the court deems proper,for ;r the payment of such costs and damages as may be RULE 65.3 PROCEEDINGS FOR cop,, incurred or suffered by any party who is found to CIVIL CONTEMPT any have.beeti wmngflllly et>joined or restrained, upo Adopted Dec.A 1978,effective Jan.15,IM. (a) Applicability. Enforcement of compliance with of I the following court orders shall be sought by means of of a Reporters'Note"979 Amendment a separate civil proceeding denominated as a "civil (� Two Massachusetts statutes govern actions to recover contempt proceeding": the goods or chattels: G.L.a 247(Replevin)permits plaintiff to (1) temporary restraining orders, preliminary or day I' obtain the disputed property prior to trial,without hearing, and without Justification such as imminent destruction,trans• permanent irtjuretions pursuant to Rule fib,or stipuia con fer,or coneeshent of the props Lions in lieu thereof; sio: rty. This statute la probably i unconstitutional(see Fuentes v.$hevir.,407 U.S.67,02 S.Ct. (2) orders issued pursuant to Rule 70; and IN%88 L.Ed.Sd 96(1872)). The other statute,0.1.,c.214, ord 4 8 gives the Supreme Judicial Court and Superior Court (6) any other orders or judgments enterer pursuant for equitable jurisdiction to order redeilvM of goods or chattels is these rules,for the violation of which civil contempt dis taken or detained from the owner, without requiring the is an appropriate remedy,except for matters eopiW the owner first to establish inadequacy of the legal remedy. ble under Rules 26(c),86(a)and 37. ter. s supreme judicial and superior courts shall have.original and concurrent jurisdiction of the following casea: (1) " (b) Commencement. A civil contempt proceeding j tions to compel the redelivery, of goods or chattels taken or shall be commenced by the filing of a complaint for tri? detained from the owner P.L.c.214,13, contempt with the clerk of the court whose injunction, col As 0.1.,c,216,it 8 provides a legal vehicle for recovery of stipulation, order or judg'merit is claimed to have been its property,its marriage with Rule 66(Injunctions)provides a violated. en simple and flerdble prooeduns, affording the same constitu- No entry fee shall be required in connection with Ad tional safeguards as a detailed statute. Although "injunc• Fl tion" and "restraining order", as used in Rule 65, literally the filing of the complaint for civil contempt The Imply reatmint or inaction, the rile clearly also novena Any proceeding shall be considered part of the civil action f order requiring aifrristive conduct,the so-called"mandatory out of which the contempt arose, . injunction", International Longshoremen's Ass'n, Local No, thi 1291 v.Philadelphia Marine Trade Assn,U9 U.S.$4,T", (c) Contents od the Complaitnt. The complaint for civil contempt shall: CT �S.Ct.$01,207�08,19 L.Edpd 286(1987). I+4; Rule We)allows the ex parts recovery of property only"if (1) contain a complete verbatim statement of the � It clearly appears bum specific theta shown by affidavit or by irdunetion,stipulation, order or judgment involved,or the verified complaint that immediate and irreparable injury, a copy thereof if available,and the name of the issuing pr loss or damage will result to the Applicant before the adverse judge where appropriate; AS party or his attorney an be heard in opposition" Even & then, the time provisions of Rule 65(a) provide a wronged (0) identify the court that issued the injunction, col defendant the opportunity to obtain on Immediate heating. order or judgment, or in which the stipulation was al 'i Likewise, plaintiff seeking a preliminary injunction must filed: Il 98 .I ' MMEWAY. i. 19940:06AM1 P'Tll'?Ek; N'l",Ci Biii'dEN NO, 21 ? i � REMEDIES AND SPECLAL PROCEDURES Rule 68.1s (9) contain the case caption and the docket number excludes discovery sanctions as are because when a diecovery order !J Of the Case in which the Nunetion,order or Judguent is violated, the parti usually already before the court I Il was issued,or the stipulation was filed; and there are a wide range of available sanctions,other than I (4) include a short,concise statement of the facts on Contempt. A distinct civil contsrnpt'proceeding,with its own J J which the asserted Contem t is based' summons, pleadings, and potentia, evidentiary hearing, p ; seems unnecessary in the context of most disputes over the (5) include a prayer for the issuance of a summons violations of a discovery order, as specified in subsection(d)below; Section (b) tells how to commence a civil contempt pro. (8) be verified or supported by affidavits complying feeding, and clarifies that such proceeding shall have the same docket number and be otherwise treated.as part of"the with the provisions of Rule 11(e); and civil action Out of which the contempt arose." Consequently, M otherwise comply with the provisions of Rules S. no entry fee is required. 9,10 and 11. Rule 66.8(C)(0-M prescribes what mutt be included in a (d) Summons, The summons shall issue onl on a civil contempt complaint,and,because of the serious nature J y Judge's order and shall direct the parties to appear Of an allegation of civil contempt, requires verification or accompanying appropriate affidavits. before fire court not later than ten day® thereafter for ign Rule 65.31d) endows the summons with unusual aiR- l , th�e�purpoae or purposes specifically stated therein of: canoe. Becauso of the expedited and grave nature of a civil uling a trial,Considering whether the filing of an contempt proceeding, the summons (1) "issues only on a J'answer is newssary,holding a hearing on the merits Judge's order,"(11)must"direct the parties to appear before of the complaint,or considering such other matters or the court not later than ten days"'after issuance of the order, perfomring such other acts as the court may deem and MO must specifically state what will happen when the appropriate. parties appear. The rule laces the responsibility l ` p ponsibility on the � (e) Service of the Summons and Complaiaat, A Party filing a Complaint for contempt to obtain the summons. copy of the summons,the complaint for come Rule 65,11(d) is constmoted to meet two different goals. mP�and The first W to permit flexibility with respect to what oocurs any accompanying ying ai%idavita shall be served, in hand, when the roes fret appear upon the defendant in accordance with the provisions Depending or the nature e allege alleged a case may.of Rule 4,Weis the,court orders some other method or may not benefit from the filing of an answer, expedited of service or notice. discovery,or an immediate hearing, Consequently, the rule (f) Answer, rse orders, gives wide discretion to the judge to determine what should Unless the Court otherwise the defendant shalt serve an answer within twee happen;when the parties appears a"hearing on the merits," twenty If it makes sense to have thatQuickly; days Aer service of the summons and complaint for conaidering dispensing with an answer, scheduling,a trial; 'i u Contempt. The ariswer shall comply with the provi. if discovery is necessary; requiring initi�nplSl no by tditing he lil alone of Rules 8,9,IO and Ili defendant pending a hearing; considering other appropriate (g) Discovery. A party; by motion, may seek an flamed.' or requiring other appropriate acts to be per- �'II order permitting discovery. Such motion shall set 71 forth the Particular need for discovery, the t of The second goal is tiff eliminate, to the e> nt reasonably 'discovery sought and the time required for obta�inirrgr eblreR surprising the parties. "he parts should know, �m very. A motion for discovery in a civil con• in response Ito tithe swnmether a ore The wol will take�rda�peece �rflosl>�'in Poe pt dints nrsy be heard an three days` notice, the purpose or purposes specifically stated therein" is to (h) Trial, The complaint for contempt shall be emphasize the importance of informing the partles what to expect, To merely place in each summons a laundry list of tried upon the facts to accordance with Mule 6E. The court shall fund the facts specially and state separatelyeverything which might happen or`tivhete�'er the court may its conclusions of law thereon., and u1d deem appropriate will not comply with either the language entered pursuant to Rule 58. gment shall be or spirit of this rule. Adopted May 83,1888,efl$oGve July 1,18Q8. Rule 66.9(s) provides that service of the summons and 1' complaint and"any accompanying affidavits"will normallybe )Reporter's Notes--195a "in hand" 3 for to the adoption of this rule,no provisions erdeted in "the courtule otherwise orders" is for an n thesummons wer within 0or when aim 'I the Rules of Civil Procedure to specifically govern civil dss.a lon�npt pr'owedinga. ties'Nolan, Equitable Remedies, 81 an�svvar is uP eceashe judge may, for iRetsrtae, decide an "11 two-'Massachusetts Prsotics,a 198. There is no analogous fader` than go days. aryl or that It should be served in Eewer 1�4 All g sc; nde. Under Rule 6b,8(g)e .,: Under Rule d6.8(a) the rule it made a „ party must seek an"order perrrsitting applicable to a„ discovery, unlike the normal discovery provisions which �. 0psedingt to enforce compliance with temporary, prelimi• permit parties,an their own,to initiate discovery. The rule ,4'y or permanent injunctions; stipulations iR lieu thereof; requires the parties seeking discovery to particularize the 14 70 orders; and other similar orders"fbr the violation of need for, 6vg� civil ht. The contempt is an appropriate remedy," It is not purpose is to onstrtet th t7p. and e mOr®of wkle•open discovery which gip' ilappliqea.ble to discovery sanctions, under Rules 86(b), of(a) can occur In other proceedings, It is important to Rots that v+,nor to$mall claims cases(Rule 81(a)(7)). This rule in an unusual case,the court eon order discovery in the initial J 99 "�9 Ono f'fiCC EnI�;Eli +Q e502 F. i I Rule W RULES OF CIVII6 PRROCEDURE, See ofwt G.L.c.200 Eo6,and SK Succeeding SubeectiON sainrnons under Rule 61i.8(d)or at the hearing which occurs he ru incorporate Super.Ct, Rule 91 in its entirety. ` when the Plrd�s respond te the summons, sg(e}dealing with disohar6e of a receiver accords with Rule 66.8(h)makes Rules ag( to figs Contempt Court)8nd d• S,J,C. Rule 20. Rule WO imparts a bbOlty to for ex. U(Entry of Jedgment)app abrogation of requirements in OPMP inge, ample a rent reoeivmhip, Reporter's Nottl--1996 Report es Notes-106 With the merger of the District Court Rules tntc the With the merger of the District Court Rules into the Maas.R,Civ.P„ Rule 66.8 is now applicable in the District Mass,R•Crv,p. minor diffarences which had existed between Court It had previously been held by the Supreme Judicial Maes,R,Civ,P, 66 and L1ietJMcn.C •R.CIv.P. have been Court that Rule 65.8 was not aylicable in the District Court, eluninated• although the provisions thereof might have been applied by analogy in District Court civil contempt proceedings. Maho- nqy V. Commonwealth, 415 Mass, 278, 612 N.E.2d 1175 RULE 67. DEPOSIT IN COURT (1998). In an action it which any part of the relief sought is a judgment for a sum of money or the disposition of a R1;JII,F, 86. RECEIVERS Suns of money or the disposition of any other thing capable of delivery,'a Party,upon notice to every other (a) An action wherein a receiv has been appoint- and by leave of court, may deposit with the ed shall not be dissrsissed except b order of the court. party, of Such sum or thing, Money The practice in the adr�tratian of estates t court court all�1 court der this rule shall be deposited and ers or by other similar officers appointed by the an'thdrawn in accordance with the provisions of any shall be in accordance with the practice heretofore lrcabie statute or rule. followed in to courts of this Commwnwealth and with a Pp the lasts th soft a all other respect$ fire action in Reporters, Notes-1973 wtach the appointment While no prior statute or rule of court in Maesaahusettant of a receiver is sought or which is brought by or against a receiver is governed by authorized deposits in court,some prior sstutee and rules of these rules. court did deal wttb the meeha7leS of comparable procedures. (b) Every receiver, within thirty days after his Among these is the familiar"payment into court under the appointment, shall file a detailed inventory of the Common rude." See Super•Ct Rule 42, Another(s G.L.o. ppoin gel,6 40,which authorizes the Payment of money irtto court property of which he has possession or the right to in an inwroeader action. See also G.L.c.86, 6 281, S.J.C, possession,with the estimated values thereof,together Race ; Super.Gt» Rule 41. None of these statutes or with a list of the encurrabrances thereon; and also a rulas however, has provided ays Rule 67 the deposit of a non-mone- list of the creditors is the�ohands of the r of the tary eceiv party whose property so far as lmowtrs to him R.L'LE 68. OFFER OF JUDGMENT (o) Every receiver shall file, not later than the At any time more than 10 days before the trial fifteenth day of February of each year, a detailed begins, a per, defending agsWt a claim may Serve account under oath of his receiverShip to and including upon the adverse party an offer to allow judgment t the last day of the preceding year, substantially ire the be taken against him for the money or property or tc form required for an account by a guardisitt in the the effect specified in his offer, with costs then as probate cow,together with a report of the condition amed U within 10 days after the service of the offs, oof the receiveraWp. Fe shall' also file such further the adverse party serves written notice that the Offer accounts and reports as the court may order. is accepted, either party may then file the offer ap, (d) When an attorney at law has been appointed a notice of acceptance together with proof of servsc receiver,no attorney shall be employed by the receiv- thereof and thereupon the clerk shall enter judgmen er or moeivers except upon order of court,which shall An offer not accepted shall be deemed withdrawn art be made only upon the petitior- of a receiver, stating evidence thereof is not admissible except in a procew the name of the sUmmey whom he desires to employ ing to determine costs. If the judgment exclusive and showing the necessity of such employment. interest from the date Of offer finally obtained by titi I (e) No orderwell until he has Settled ther lhisofferes must pay the coats ineurY'ed after'the mae than the offer,kir j responsibility oiferee is not more will the offer. The fact that an offer is made but n feral account any accepted does not preclude a subsequent offer. Wise W The oourt, in its discretion, may relieve Sny the liability of one party t* another has been deU receiver from any requirement imposed by sections mined by verdict or order or judgment, but t (b}4e)of this rule, &recent or extent of the ilabiliV remains to be dot' Beportera'Noteap1978 mined by further proceedings, the party so'g Uable may Make an offer of judgment, which Sb Rule 66 proMMs no conflict with prior Massachusetts have the same effect as an offer made before trial i praodee, Rule We) indeed explteiEly incorporates exietinit 100 11 p LEGAL DEPARTMENT, TOWN OF BARNSTABLE OFFICE OF TOWN ATTORNEY Inter-Office Memorandum April 1, 1998. TO: RALPH CROSSEN, Building Commissioner FROM: RUTH J. WEIL, ASST. TOWN ATTORNEY C RE: RUDDERS v. Building Commissioner; OKH Committee Superior Ct., C.A. No. 98-111 OUR FILE REF. NO.: 98-0027 ------------------------------------------------------------------------------- Attached please find a copy of the Defendants' Motion to Dismiss together with related documents relative thereto for your files. The Decision rendered by J. Connon dated 3/27/98 was hand-delivered to your office yesterday. We shall keep you advised. RJW:cg Atchmts. [98-00271memralph] TOWN OF BARNSTABLE BARNSTABLE. OFFICE OF TOWN ATTORNEY MASS. 367 MAIN STREET t6)9. rEoµlct" HYANNIS, MASSACHUSETTS 02601-3907 TEL. (508)790-6280 ROBERT 0. SMITH,Town Attorney March 13, 1998 NIGHT LINE-AFTER 4:30 P.M. RUTH J. WEIL, Assistant Town Attorney (508)790-6283 CLAIRE R. GRIFFEN, Legal Assistant FAX k(SOB)775-3344 EILEEN S. MOLLICA, Legal Clerk Mrs. Phyllis A. Day, Clerk Barnstable Superior Court, Civil County Court Complex, Main Street P.O. Box 425 Barnstable, Ma. 02630 Re: C.A. No. 98-111, Barn. Supr. Ct. Richard Rudders, et ux v. Building Commissioner, etc., Barnstable Old Kings Highway Committee Our File Ref: #98-0027 Dear Mrs. Day: Pursuant to your office's instructions, we are enclosing the List of Documents in Support of Defendants' Motion to Dismiss pursuant to the provisions of Mass. R. Civ. P. 12(b), together with Certificate of Service relative thereto, which we would appreciate your filing on behalf of the Defendants therein. As I previously indicated, the Defendants filed the Motion to Dismiss documents in lieu of an answer and all parties have been served for their appropriate responses under Rule 9A. Once the requisite time period elapses, and we receive their responses, if any, we will file the complete Rule 9A package with the Court. Thank you. Sincere) RJW:c a J. Weil, Assi ant Town Attorney g Encs: town of Barnstable cc: Robt. C. Chamberlain, Esq. & Thomas J. Perrino, Esq. cc: Gerald S. Garnick, Esq. & Lois M. Farmer, Esq. cc: Old King's Highway Regional Historic District Committee cc: Building Commissioner, Town of Barnstable [98-00271day-list) 4 i COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-111 RICHARD RUDDERS and DEFENDANTS' LIST OF JOAN RUDDERS, DOCUMENTS IN SUPPORT Plaintiffs, OF MOTION TO DISMISS PLAINTIFFS' COMPLAINT. V. BUILDING COMMISSIONER FOR THE TOWN OF BARNSTABLE and THE BARNSTABLE OLD KING'S HIGHWAY COMMITTEE, Defendants. The Defendants offer the following list of documents in support of their motion to dismiss Plaintiffs' Complaint, pursuant to Mass. R. Civ. P. 12(b)(1): -- Defendants' Motion to Dismiss Plaintiffs' Complaint; -- Defendants' Statement of Reasons and Brief in Support of Motion to Dismiss Plaintiffs' Complaint; -- Certificate of Service of same upon Plaintiffs' attorneys, Chamberlain and Perrino; and attorneys, Garnick and Farmer, for proposed intervenors. Dated: March 12, 1998. BUILDING COMMISSIONER, etc., and the BARNSTABLE OLD KING'S HIGHWAY COMMITTEE, Defendants, By their rneys, I OBERT D. SMITH, Town Attorney [B.B.O. No. 469980] RUTH J. WEIL, Assistant Town Attorney [B.B.O. No. 519285] TOWN OF BARNSTABLE isHOVAWsmsl 1 w , 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508) 790-6280; (508) 775-3344 FAX TO: ROBERT C. CHAMBERLAIN, ESQ. [B.B.O. NO. 080368] THOMAS J. PERRINO, ESQ. [B.B.O. No. 555297] Attorney for Plaintiffs Quirk & Chamberlain, P.C. 99 Willow Street P.O. Box 40 Yarmouthport, MA 02675-0040 (508) 362-8262; (508) 362-6060 Fax TO: GERALD S. GARNICK, ESQ. [B.B.O. No. 185920] LOIS M. FARMER, ESQ. [B.B.O. No. 552142] Attorneys for Intervenors, Joseph F. Dugas and Edith W. Dugas Garnick & Scudder, P.C. 32 Main Street, P.O. Box 398 Hyannis, MA 02601 (508) 771-2320; (508) 771-3304 Fax CERTIFICATE OF SERVICE Barnstable, ss: March 13, 1998. 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 attorneys for the above-nameiTown dat ritten bove. riffen, Le al sistant of Barns le 367 Main Street, New Town Hall Hyannis, MA 02601 (508) 79-6280; (508) 775-3344 Fax [984027n1stdsms] 2 TOWN OF BARNSTABLE i UNMAKE, OFFICE OF TOWN ATTORNEY MA98. g 367 MAIN STREET . t639 �e lEs639 " HYANNIS, MASSACHUSETTS 02601-3907 TEL. (508)790.6280 ROBERT D.SMITH,Town Attorney NIGHT LINE-AFTER 4:30 P.M. RUTH J. WEIL, Assistant Town Attorney (508)790-6283 CLAIRE R. GRIFFEN, Legal Assistant March 12, 1998 FAX x(508)775-3344 EILEEN S. MOLLICA, Legal Clerk Mrs. Phyllis A. Day, Clerk Barnstable Superior Court, Civil County Court Complex, Main Street P.O. Box 425 Barnstable, Ma. 02630 Re: C.A. No. 98-111, Barn. Supr. Ct. - Richard Rudders, et ux v. Building Commissioner, etc., Barnstable Old Kings Highway Committee Our File Ref: #98-0027 Dear Mrs. Day: Pursuant to Mass. R. Civ. P. 12(b), the Defendants are filing the enclosed Motion to Dismiss in lieu of an answer. To assure that there is a record with the Court of the timely filing of said Motion, we are submitting it herewith, while at the same time serving the parties with copies for their responses under Superior Court Rule 9A. Once we receive the responses, we will submit the required Rule 9A package to the Court. Thank you. Sincerely, RJW:cg Ruth J. W il, Assi tant Town Attorney Encs. rtown of Ba stable cc: Robt. C. Chamberlain, Esq. & Thomas J. Perrino, Esq. cc: Gerald S. Garnick, Esq. & Lois M. Farmer, Esq. cc: Old King's Highway Regional Historic District Committee cc: Building Commissioner, Town of Barnstable [98-00271dayNrl] COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-111 RICHARD RUDDERS and DEFENDANTS' JOAN RUDDERS, MOTION TO DISMISS Plaintiffs, PLAINTIFFS' COMPLAINT. V. BUILDING COMMISSIONER FOR THE TOWN OF BARNSTABLE and THE BARNSTABLE OLD KING'S HIGHWAY COMMITTEE, Defendants. NOW COME the Defendants, and pursuant to Mass. R. Civ. P. 12(b)(1), move this Court for an entry of dismissal of Plaintiffs' Complaint. As grounds therefor, the Defendants state that they are entitled to a dismissal in their favor based upon the fact that this court lacks jurisdiction over the subject matter of the Plaintiffs' complaint because under the statute creating the Old King's Highway Regional Historic District, St.1973, c. 470, as amended, jurisdiction is vested exclusively in the district court by the provisions of Sections 11 and 12. Moreover, neither an action in the nature of mandamus nor an action for declaratory relief can be used as a substitute for the exhaustion of administrative remedies and the Plaintiffs have failed to exhaust their administrative remedies. Accordingly, this Complaint should be dismissed. WHEREFORE, the Defendants respectfully request that this Court allow the Defendants' motion to dismiss and dismiss the Plaintiffs' Complaint herein. [98-0027/motdmiss] r Dated: March 12, 1998. BUILDING COMMISSIONER, etc., and the BARNSTABLE OLD KING'S HIGHWAY COMMITTEE, Defendants, By their Attorneys, R BERT D. MIT , Town Attorney [B.-B.O. No. 6998 RUTH J. WEIL, ssistant Town Attorney [B.B.O. No. 519285] TOWN OF BARNSTABLE 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508) 790-6280; (508) 775-3344 FAX TO: ROBERT C. CHAMBERLAIN, ESQ. [B.B.O. NO. 080368] THOMAS J. PERRINO, ESQ. [B.B.O. No. 555297] Attorney for Plaintiffs Quirk & Chamberlain, P.C. 99 Willow Street P.O. Box 40 Yarmouthport, MA 02675-0040 (508) 362-8262; (508) 362-6060 Fax TO: GERALD S. GARNICK, ESQ. [B.B.O. No. 185920] LOIS M. FARMER, ESQ. [B.B.O. No. 552142] Attorneys for Intervenors, Joseph F. Dugas and Edith W. Dugas Garnick & Scudder, P.C. 32 Main Street, P.O. Box 398 Hyannis, MA 02601 (508) 771-2320; (508) 771-3304 Fax [98-0027/motdmiss] r CERTIFICATE OF SERVICE Barnstable, ss: March 12, 1998. 1 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 attorneys for the above-named parties on the date written above. Claire, riffen, Legal Assistant Town of Barnstable 367 Main Street, New Town Hall Hyannis, MA 02601 (508) 79-6280; (508) 775-3344 Fax [98-0027/motdmiss] I COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-111 RICHARD RUDDERS and DEFENDANTS' STATEMENT JOAN RUDDERS, OF REASONS AND BRIEF Plaintiffs, IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS V. PLAINTIFFS' COMPLAINT. BUILDING COMMISSIONER FOR THE TOWN OF BARNSTABLE and THE BARNSTABLE OLD KING'S HIGHWAY COMMITTEE, Defendants. I. INTRODUCTION. This case arises out of a proceeding commenced before the Old King's Highway Regional Historic District Committee and purports to be an action in mandamus, for declaratory relief pursuant to G.L. c. 231A and an appeal under G.L. c. 40C, §12A. As is set forth more fully below, this court lacks jurisdiction over the subject matter of the Plaintiffs' complaint because under the statute creating the Old King's Highway Regional Historic District, St.1973, c. 470, as amended, jurisdiction is vested exclusively in the district court by the provisions of Sections 11 and 12. Moreover, neither an action in the nature of mandamus nor an action for declaratory relief can be used as a substitute for the exhaustion administrative remedies. Accordingly, this Complaint should be dismissed. [98-0027\Wefstm] 1 f I1. STATEMENT OF ISSUES PRESENTED. 1. Whether the Plaintiffs' Complaint should be dismissed because the Superior Court lacks jurisdiction over the subject matter of an appeal from actions taken by the Old King's Highway Regional Historic District Committee. 2. Whether the Plaintiffs' Complaint should be dismissed because this Court lacks jurisdiction over the subject matter of the Plaintiffs' Complaint because Plaintiffs have failed to exhaust their administrative remedies. 3. Whether the Plaintiffs' Complaint should be dismissed based on the fact that an action for declaratory relief cannot be pursued in lieu of an appeal and no appeal was filed in this matter. 4. Whether an action in mandamus lies where the Plaintiffs have failed to exhaust their administrative remedies and the request for mandamus, by the Plaintiffs' own admission, involves what the Plaintiffs characterize as a discretionary function of the Building Commissioner. 5. This Court has no jurisdiction over the Plaintiffs' purported claim under G.L. c. 40C because the Old King's Highway Regional Historic District is created by a special act and is not controlled by G.L. c. 40C. III. ARGUMENT IN SUMMARY FORM. The Old King's Highway Regional Historic District , St. 1973, c. 470, as amended, is a special act of the Legislature vesting exclusive jurisdiction in the district court under the provisions of Sections 11 and 12. Further, the Plaintiffs have failed to exhaust their administrative remedies under the Act. Therefore, the superior court lacks jurisdiction over the subject matter of the Plaintiffs' complaint. p8-002AbNefstm] 2 7 IV. REGULATORY FRAMEWORK FOR THE OLD KING'S HIGHWAY REGIONAL HISTORIC DISTRICT. In 1973, by special act, St.1973, c. 470, the General Court established the Old King's Highway Regional iHistoric District (hereinafter "District") in the towns of Sandwich, Barnstable, Yarmouth, Dennis, Brewster and Orleans.' The district encompasses a broad area within the member towns bounded on the south by Route 6, and on the north by Cape Cod Bay. The purpose of the Old King's Highway Regional Historic District is to "promote the general welfare of the inhabitants [of the district] through preservation and protection of buildings, settings and places within [its] boundaries ... through the development and maintenance of appropriate settings and exterior appearance of such buildings." Section 1 of the Act. Accordingly, each member town of the district is authorized to appoint a local committee consisting of five persons. Section 5 of the Act. The triggering mechanism for review by a local committee is the requirement that no structure may be erected within the district without the issuance of a "certificate of appropriateness" by the historic district committee of the town in which the proposed structure is to be located. Section 6 of the Act. Their role is to receive and evaluate applications for certificates of appropriateness. Section 6 of the Act. To assist the local committees, the commission — in 1983 -- promulgated guidelines. (Copy of guidelines found in "Bulletin" attached hereto as Exhibit 1.) "The Act has been subsequently amended by St.1975, c. 298 and c. 845; St.1976,. c. 273; St.1977, c. 38 and c. 503; St.1978, c. 436; St.1979, c. 631; and St.1982, c. 338. [98-00271bdef tm] 3 Any person aggrieved by the determination made by the committee can file an appeal to the Regional Commission. (Section 11 of the Act). If the local committee "exceeded its authority or exercised poor judgment, was arbitrary, capricious or erroneous in its action," the commission must annul or revise the local committee's determination. (Section 11 of the Act). Appeal from the regional commission is to the local District Court only. (Section 11, id.). Specifically, Section 11 states, in pertinent part: Any person aggrieved by the action of the commission may, within twenty days after notice of said decision has been filed with the town clerk of the affected town, appeal to the district court having jurisdiction over the affected town. Said district court may hear all pertinent evidence and determine the facts and if, upon the facts so determined, such determination or approval is found to exceed the authority of the commission, said district court may modify either by way of amendment, substitution, or revocation, the decision of the commission and may issue such superseding approval or denial of the application with such condition as said district court in its discretion deems appropriate, and shall have all of the powers to act in the matter that are available to a court of general equity jurisdiction. The findings of fact by said district court shall be final and conclusive upon the parties. The remedies provided by this section shall be exclusive, but the parties shall have a right of appeal to the southern appellate division district of the district courts on issues of law. Cost shall not be allowed against the commission or the committee unless it shall appear to said district court that they either acted in bad faith or with malice in the matter from which the appeal was taken. Costs shall not be allowed against the party appealing from such determination or approval of the commission unless it shall appear to the court that said party acted in bad faith or with malice in making the appeal to the court. (Emphasis supplied). Similarly, all enforcement activities, including the issuance injunctive relief, are vested in the district court under Section 12. Section 12. ... The building inspector in the affected town shall have the power and duty to enforce the provisions of this act. The district court having jurisdiction over the affected town shall have jurisdiction to enforce the provisions of this act and the determinations, rulings and regulations issued thereunder, and may restrain by injunction violations thereof and issue such other orders for relief of violations as may be required. P8-00271bdettm] 4 V. STATEMENT OF CASE. On or about September 17, 1997, Richard and Joan Rudders submitted an application for an approval of a "certificate of appropriateness" to allow them to demolish an existing one-story single-family home located at 36 Sunset Lane, Barnstable, Massachusetts, a part of the Old King's Highway Regional Historic District and to erect a new two-story single-family home. (Exhibit A attached to the Plaintiffs' Complaint). A plot plan showing the location of the new home was submitted with the Rudders' application for a certificate of appropriateness. (Exhibit A attached to the Plaintiffs' Complaint). At the hearing held before the Barnstable Committee held on October 8, 1997, there was discussion as to the appropriate location of the new home. (See attested copy of minutes attached hereto as Exhibit 2). Russ Hamlyn, the contractor appearing on behalf of the Rudders at the meeting, represented that the submitted plot plan reflected that the proposed new home was "eight feet back" from the existing structure. (Exhibit 2). After discussion, which included much discussion about the exact location of the house and how far back from the street it should be, and deliberation, the Committee approved the certificate of appropriateness at the location shown on the proposed plot plan. (Exhibit A attached to the Plaintiffs' Complaint). Apparently, after the issuance of the certificate of appropriateness, but prior to the demolition of the existing home, Dr. Rudder "discovered" that the plot plan presented on his behalf and approved by the Committee showing the location of the new home approximately eight or nine back feet from the existing structure was not where Dr. Rudders had wanted it to be built. (Plaintiffs' Complaint, para. 11). Section E [98-002Abdettm] 5 I of the guidelines of the Old King's Highway Regional Historic Commission establishes a procedure whereby an amendment to a plan approved by the Committee can be made. (See Guidelines, Section E, attached hereto as Exhibit 1). The Rudders did not request an amendment to the approved plan. In fact, they made no effort to apprise the Committee, the permit granting authority, of their desire to modify the approved plan. Rather, the Rudders assert that they directed their contractor to contact the Town of Barnstable Building Department. (Plaintiffs' Complaint, para. 11). The Rudders state that their building contractor "checked with the Building Department" and allegedly "learned" that as long as there was no zoning violation, a deviation in a plan approved by the Committee was permissible.2 (Plaintiffs' Complaint para. 11). Without first obtaining permission from the Committee to proceed with an amended plan, the Rudders demolished the existing structure and proceeded to begin construction on the new building in a location different than that approved by the Committee. (Plaintiffs' Complaint, para. 12). Soon thereafter, concerns were raised about discrepancies in the location of the new structure and after confirming the error as to the location, the Committee, pursuant to Section 12 of the Act, requested the Building Commissioner to issue a cease and desist order to stop construction of the building. (Exhibit I, attached to Plaintiffs' complaint). ti There exists no record of any such call from the Rudders' contractor. Nor does anyone in the Building Department recall any such interchange. Therefore, the Defendants deny the allegations made by the Rudders. Moreover, generally, the principles of estoppel are not applicable against the government in connection with its exercise of public duties, particularly when the government is acting in the public interest. Freetown v. Zoning Bd. of Appeals of Dartmouth, 33 Mass .App. Ct. 415, 420, (1992); Highland Tap of Boston, Inc. v. Commissioner of Consumer Affairs &Lic. of Boston, 33 Mass. App. Ct. 559, 568 (1992); 743 (1993). (See Section W(C), infra). P8-002Mdettm] 6 Without first pursuing the administrative procedures delineated in Section 11 of the Act, the Plaintiffs filed this Complaint seeking a mandatory injunction against the Committee, essentially requesting that the Court order the Committee to completely relinquish its jurisdiction over the project. VI. ARGUMENT. A. STANDARD OF REVIEW. It is axiomatic that jurisdictional issues should be disposed of by the court before addressing matters which go to the merits. Attorney Gen. v. Industrial National Bank of Rhode Island, 380 Mass. 533 (1980). "This principle rests not only on logic, i.e. jurisdiction is a preliminary question, but has functional significance because a dismissal based on the merits has a judgment preclusion effect that a dismissal for want of jurisdiction does not have." Ruggieri v. City of Somerville, 10 Mass. App. Ct. 43, 44 (1980). Subject matter jurisdiction cannot be conferred by consent, conductor waiver. Second Bank-State St. Trust Co. v. Linsley, 341 Mass. 113, 116 (1960). It is well- established that "...this court must take note of lack of jurisdiction whenever it appears...." Litton Business Systems, Inc. v. Commission of Revenue, 383 Mass. 619, 622 (1980); Shea v. Neponset River Marine & Sporttishing, Inc., 14 Mass. App. Ct. 121, 129 (1982); Mark v. Kahn, 333 Mass. 517, 519 (1956). The Supreme Judicial Court recently clarified that where, as here, a Motion to Dismiss is filed under Mass. R. Civ. P. 12(b)(1), raising jurisdictional questions, materials may be presented outside of the pleadings without requiring the motion to be considered as one for summary judgment under Mass. R. Civ. P. 56. Waltros v. Greater Lynn Health and Retardation Assn., Inc., 421 Mass 106, 108-109 (1995). [98-002Abdefstml 7 i B. THE OLD KI'NG'S HIGHWAY REGIONAL HISTORIC DISTRICT ACT VESTS EXCLUSIVE JURISDICTION OF THE CLAIMS RAISED IN THE PLAINTIFFS' COMPLAINT IN THE DISTRICT COURT. There is no dispute that the Rudders' property is located within the Old King's Highway Regional Historic District and, therefore, the construction they are seeking to undertake must comply with the provisions of the Act. The Act establishes a comprehensive administrative process and appellate regime vesting exclusive jurisdiction in the district court. Not only does the Act provide exclusive jurisdiction in the district court for appeals from decisions of the Committee and Regional Commission but it grants the district court exclusive jurisdiction to "... enforce the provisions of this act and the determinations, rulings and regulations issued thereunder, and may restrain by injunction violations thereof and issue such other orders for relief of violations as may be required." (Section 12 of the Act). "Whenever it appears by suggestion of a party or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Flynn v. Contributory Retirement Appeal Board, 17 Mass. App. Ct. 668, 670 n. 3 (1984). In the instant case, the relief being sought by Plaintiffs, if available at all, is within the sole jurisdiction of the district court. The Plaintiffs' confusion apparently arises from the fact that they assert jurisdiction in this court under the provisions of G.L. c. 40C, §12A. Chapter 40C deals with the creation of town historic districts within a town's boundaries. However, where, as here, a regional historic district is created by a special act of the legislature, the provisions of the special act control. See, G.L. c. 40C, §16. This was the specific determination in Attorney General v. Barnstable Committee of the Old King's Highway [98-002Abdefstm] 8 Regional Historical District, 92-0127, at 7 (Supreme Judicial Court, March 15, 1993) (copy attached hereto as Exhibit 3). See generally, Harris v. Old King's Highway Regional Historic Dist. Com'n, 421 Mass. 612 (1996); Anderson v. Old King's Hy. Regional Historic Dist. Commn., 397 Mass. 609 (1986). Accordingly, the Plaintiffs' Complaint should be dismissed. C. THE PLAINTIFFS HAVE FAILED TO EXHAUST THEIR ADMINISTRATIVE REMEDIES AND, THEREFORE, THEIR COMPLAINT SHOULD BE DISMISSED. "It is reasonable that a conscious participant in the administrative process be held to conditions of review specifically prescribed for the process, specifically the time limits." New England Milk Dealers Association, Inc. v. Department of Food and Agriculture, 22 Mass. App. Ct. 705, 710 (1986). In the instant case, the Plaintiffs admit that before demolishing the existing structure and commencing work on the new building, they were aware that they wanted to build their new home at a location different than that approved by the Committee. Their recourse under the Act was clear. The Rudders could either request an amendment to the approved plan claiming a "minor modification" (see Section E of the Guidelines attached hereto as Exhibit 1) or file an application for a new certificate of appropriateness. These avenues are still available to the Rudders today. Nor can the Plaintiffs circumvent the requirements of the Act by merely framing their challenge as a request for declaratory relief. Balcolm v. Hingham, 41 Mass. App. Ct. at 264; lodice v. Newton, 397 Mass. 329, 333 (1986); School Comm. of Franklin v. Commissioner of Educ., 395 Mass. 800, 807-808, (1985); Rosenfeld v. Board of Health of Chilmark, 27 Mass. App.Ct. 621 (1989). [98-00271bdefstm) 9 Plaintiffs' argument that they purportedly received the permission to deviate from the approved plan from some unnamed representative of the Town of Barnstable Building Department, improperly suggests that an applicant can avoid the prescribed to justi fy the circumvention through a claim administrative processes and then attempt � fy 9 that they relied on another government official to their detriment. Even in egregious situations, which is certainly not the case here, courts are "reluctant to apply principles of estoppel to public entities where to do so would negate requirements of law intended to protect the public interest." Holahan v. Medford, 394 Mass. 186, 191 (1985); "Justifications of the tradition ... are the need for protecting the public against improper collusions, Lee v. Munroe, 11 U.S. (7 Cranch) 366, 370, 3 L.Ed. 373 (1813), deference to legislative policy, concern about the public treasury, and administrative efficiency." McAndrew v. School Committee of Cambridge, 20 Mass. App. Ct. 356 (1985). This principle is particularly applicable in the instant case where the established administrative process is designed to afford due process to abutters and other parties in interest as well as to the property owner. O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555 (1986); Pierce v. Board of Appeals of Carver, 369 Mass. 804, 808 (1976). Courts have refused to apply principles of estoppel and waive administrative exhaustion requirements even under circumstances where property owners have asserted that they have incurred great expense relying on the representations of public officials, Building.Inspector of Lancaster v. Sanderson, 372 Mass. 157 (1977) or have missed appeal filing deadlines based upon such reliance. O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555 (1986); Balcam v. Town of Hingham, 41 Mass. App Ct. ]98-00271bdettm] 10 I 260, 264 (1996). In the case at bar, neither of these situations pertain. The Plaintiffs have currently available to them and have had available to them since they determined that they wanted their new home at a location different than that presented to the Committee the administrative remedy of either applying for an amendment to the certificate of appropriateness or applying for a new certificate of appropriateness. Inexplicably, the Plaintiffs have failed to pursue either but rather have prematurely decided to file this action.3 D. AN ACTION IN THE NATURE OF MANDAMUS DOES NOT LIE. Frankly, it is difficult to understand Plaintiffs' claim in the nature of mandamus. An action in the nature of mandamus is only appropriate to compel a public official to perform a non-discretionary act he or she is legally obligated to do. "[I]t is well settled that the relief provided in the nature of mandamus does not lie to compel the municipal officer to exercise his or her judgment or discretion in a particular way." Urban Transp., Inc. v. Mayor of Boston, 373 Mass. 693, 698 (1977). The Plaintiffs appear to be arguing that the Building Commissioner is imbued with the discretion to determine whether a property owner is in "substantial" compliance with the "... intent of the OKH Act." (Plaintiffs' Complaint, para. 24, 30). Where, as here, the gravamen of the Plaintiffs' complaint appears to be that the Building Commissioner should be permitted to exercise his discretion in a particular way, an action in the nature of mandamus will Plaintiffs' complaint inaccurately refers to"public hearings"held by the Committee after it became clear that the construction being undertaken by the Rudders failed to comply with the plan approved by the Committee. These were simply discussions held by the Committee at meetings that were properly noticed under the public meeting law. G.L.c.39, §23. Had the Rudders properly pursued their administrative remedies rather than unilaterally modifying the previously approved plan, then the notice and hearing procedures under the Act would have been triggered. [98-00271bdefstrn] 11 I . not lie. See Lutheran Service Association of New England v. Metropolitan District Commission, 397 Mass. 341, 344 (1986). Moreover, "[i]t is settled that the writ of mandamus is an extraordinary remedy granted only where there is a failure of justice and in instances where there is no other adequate and effectual remedy." Coach & Six Restaurant, Inc. v. Public Works Commission, 363 Mass. 643, 644 (193). As noted above, the Plaintiffs have an adequate administrative remedy which they simply have refused to pursue. CONCLUSION. Based on the foregoing, Defendants respectfully request that the Plaintiffs' Complaint be dismissed. Dated: March 12, 1998. BUILDING COMMISSIONER, etc., and the BARNSTABLE OLD KING'S HIGHWAY COMMITTEE, Defendants, By their Attorneys, [ROBERT D.=80] TH, T wn Attorn[B.B.O. No. RUTH J. WEIL, Assistant Town Attorney [B.B.O. No. 519285] TOWN OF BARNSTABLE 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508) 790-6280; (508) 775-3344 FAX TO: ROBERT C. CHAMBERLAIN, ESQ. [B.B.O. NO. 080368] THOMAS J. PERRINO, ESQ. [B.B.O. No. 555297] Attorney for Plaintiffs Quirk & Chamberlain, P.C. [SO02Abdeistm] 12 • A 99 Willow Street P.O. Box 40 Yarmouthport, MA 02675-0040 (508) 362-8262; (508) 362-6060 Fax TO: GERALD S. GARNICK, ESQ. [B.B.O. No. 185920] LOIS M. FARMER, ESQ. [B.B.O. No. 552142] Attorneys for Intervenors, Joseph F. Dugas and Edith W. Dugas Garnick & Scudder, P.C. 32 Main Street, P.O. Box 398 Hyannis, MA 02601 (508) 771-2320; (508) 771-3304 Fax CERTIFICATE OF SERVICE Barnstable, ss: March 12, 1998. 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 attorneys for the above-named parties on thefdaritten abo 41 Clain, Le al As is t Town of Barnsta e 367 Main Street, New Town Hall Hyannis, MA 02601 (508) 79-6280; (508) 775-3344 Fax [98402Abdetstm[ 13 f 03-31-1998 .12:48PM FROM QUIRK. & CHRMBERLgIN TO 7906230 P.72 QUIRK AND CHAMBERLAINg P.C. 'Etoar_4pp CO2d coup..1c e ti at Maur g8 WILLOW STREET JAMES H.QUIRK,JP„ PQ^_T OPTICE SOX 40 R06ERT C. CHAMBERLAIN BARNSTABLE OFFICE Y,43M0UTHPOKT,MASSP.C'H USETTS 02575.00�50 PAMELA 8.MARSH POST OFFICE Box S2 506,,362-52t32 THOMAS J,PERRINO F4�$I MILE�Ob/3Yi 2.506C 6ARN97ABLE,MA 02690 ANA€TASIA WELSH PERRINO SOA."362• 314 OF COVNSEL WILLIAM E.CROWELL,JR. March 31, 1998 VIA FACSIMILE AND FIRST CLASS MAIL (508) 775-3344 6 Robert D. Smith, Town Attorney Town of Barnstable 367 Main Street, New Town Hall Hyannis, MA 02601-3907 RE: RICHARD RUDDERS AND JOAN RUDDERS VS. BUILDING COMMISSIONER OF THE TOWN OF BARNSTABLE AND OLD KING'S HIGHWAY COMMITTEE OUR FILE NO. 927/8533 Dear Mr. Smith: Please be advised that I have spoken to Mr. Crossen regarding the Court' s Order in the above-captioned matter. He is prepared to lift the Cease and Desist Order. Kindly confirm that the Town intends on complying with the Court' s Order. Please let me know immediately. Thank you for your attention to this matter. I look forward to hearing from you today. Very truly yours, QUIRK AND CHAMBERLAIN, P.C. Thomas J. Perrino, Esq. TJP:cam cc: Mr. Ralph Crossen via facsimile TOTAL P.02 i 03-30-1993 10:41RM FROM QUIRK & CHR,MBERLRIy TO 7906230 P.31 QUIRK AND CHAMBERLA,INg P.C. 1�46,o zys urd L,,unizi- ¢s,aE 2,;uv JAME,S H,QVIRK.JR. 99 WILLOW STREET ROBERT C.CHAMBERLAIN POST OP"FICE 130X 40 PAMELA s.MARBM YARMOUTHPORT, MASSACHU5ETT5 02675-0040 BARNSTABLE OFFICE THOMAS J.PERRINO 908/3e$-026Z POST OFFICE BOX 92 ANASTASIA WELSH PERRINo BARNSTABLE,MA 02630 FACSII+TILE 508/3d2-SOBp JAMES T.SVI.LIVAN 5O$/3o 2-43 14 OF CQUNSEI. WILLIAM E.CROWELL,JR. FACSIMILE-COVER LETTER DATE: TO: ,P N C'�oss n CArA IV FAX NO. ; FROM; JAMES H. QUIRK, JR., ESQUIRE OUR FAX NO. : (508) 362-6060 FILE NO. ; NO. 4P PAGES: (including this cover sheet) 03-30-1998 10:41RM FROM QUIRK ? CHFIM9FRLRIN TO 7905230 P.02 COMMONWEALTH OF MASSACIH(USETTS BARNSTABLE, ss. SUPERIOR COURT CIVIL ACTION NO. 98•1 It R CK,kR.D RUDDERS et all vs. BUILDING COMMISSIONER, TOWN OF BARNSTABLE et a12 MEMORANDUi',v1 OF DECISION AND ORDER ON THE PLAINTIFFS' MOTION FOR ORDER OF IMANDAMUS AND PRELIMINARY INIUrNCTION, AND THE MOTION TO INTERVENE OF JOSEPH F. DUGAS AND EDITH W. DUGAS The matter before this Court is the motion for order of mandamus and preliminary injunction of plaintiffs Joseph aad Joan Rudders ("Rudders"). This case arises out of a dispute between the plaintiffs, who are building a dome in Barnstable, and the Old 1Gr?p Hjgliwav Committee of the Town of Barnstabie (the "OKH Committee") and the Building C;or missioner for the Town of Barnstable (the "Building Commissioner'). Plaintiffs seelc to enjoin the OICH from taldng any further action to prevent the plaintiffs from building their home. In addition, they ask this Court to order the Commissioner to revoke a. stop work order issued on February 10, 1998 and to authorize constniction of the home pursuant to the plaintiffs' building permit. 1Joan Rudders The Barnstable Old King's Highway committee 03-30-1999 10:41RM FROM !9UIRK & CHRMBERLRIN TO 7906230 P.03 Also before this Court is a motion to intervene, pursuant to Nlass. R. Civ. P. 24 (b), brought by Joseph F. and Edith W. Dugas (the "Dugases"). In support of the motion, the Dugases contend that intervention is necessary in order to protect their interests as abutters to the plaintiffs' property. For the following reasons, the plaintiffs' notion for order of mandamus is ALLOWED in part and DENIED in part. Further, the plaintiffs request for a preliminary injunction is DENIED. Finally, the motion to intervene of the Dugases is DENIED. BACKGROUND The plaintiffs own property in the TD—va-. of Barnstable. Their land lies ,ctithin the Old Kings High,.vay Regional Historic Disnict created by St. 1973, c. 470 (the "OKH.Act")'. The OKH Committee is the local committee which is designated to review proposals and to issue Certificates of Appropriateness for buildings �NRthin their jurisdiction. On October 8, 1997, .he OKH Committee approved the demolition of an existing house on the plaintiffs' property and approved a Certificate of Appropriateness for a proposed.ne`y house on the property. Plaintiffs allege that due to a measurement error the plot plan submitted by the plaintiffs showed the proposed foundation of the new house located 35 feet from the property line rather than 26 feet. 3This Act has been subsequently amended by St. 1975, c. 298 and c. 845 ; St. 1976, c. 273 ; St. 1977, c. 38 and Q. 503; St. 1978, C. 436; St. 1979 , C. 631; St. 1982, c. 338 ; and St. 1994, C. 90. 2 03-30-1993 10:42PM FROM QUIRK & CHRMBERLaIN TO 79OS2.30 P.04 During the October &, 1997 meeting, Joseph F. Dugas, a neighbor whose property abuts the plaintiffs', e<pressed concern that the new house would interfere with the view from his home. The Plaintiffs' and their neighbor agreed that the foundation should be moved three to four feet further back from the property line than the original foundation. The location of the new foundation, as built, is located approximately 30.6 feet from the property line. This is in accordance with what the.plaintiffs allege was agreed to during the meeting of October 8. However, it is approximately four feet closer to the property line than what -vas indicated on the plot plan submitted to and accepted by the OKH Committee. Plaintiffs allege that upon realization of the mismeasurernent, and prior to demolition of the existing horse, their contractor consulted with the Building Commissioner to determine whether this four foot difference would require submission of a revised plan to the OKH Committee. Plaintiffs further allege that the Building Commissioner responded that a revised plan was not required because the actual location of the new home would appear on the "as built" plan. Further, the four foot difference did not violate the zoning regulations or the intent of the OKH Committee. Plaintiffs then proceeded Nvith the demolition of their existing home and the construction of their new home. The Building Commissioner issued a building pen-nit for the construction of the new home in November, 1997.{ On. December 17, 1997, the OKH Committee held a hearing, purportedly at the request of Joseph F. Dugas. ,As a result of this 'Joseph F. Dugas has appealed the commissioner's issuance of this building permit. 3 03-30-1993 10:42RM FROM QUIRK & CHRMBERLIqIN TO 7908230 P.95 meeting, the. Chairman of the OKE Committee wrote the Building Commissioner directing hinl to issue a stop work,order on the construction of the new house. On January 7, 1997, the OICH Committee held a hearing at the request of the plaintiff. Plaintiff contends that it was agreed that the issue of the location of the new foundation would be referred to the Building Commissioner and, upon his satisfaction, the stop work order was to be lifted. After reviewing the re-0sed plot plan, the. Building Commissioner determined that the height and location of the new hottse on the revised plan was "substantially in conformance with Zoning and the intent of the O.ICH. act." He lifted the,stop work order on January 21, 1998. On February 2, 1998, plahiti.ffs' counsel learned that the OKH Committee had scheduled a meeting for February 4, 1998. On February 6, 1998, the Chairman of the 0M Committee .vent to the plaintiffs' property and demanded that all work stop. On February j, 1998, the To-wn Clerk's Office received notice of an OKH Committee meeting scheduled for February 9, 1998. On the morning of February 9, 1998, plaintiffs Iearned of the meeting that was to take place that afternoon. The agenda indicated that the meeting was for discussion of the plaintiffs' construction of their new house. As a result of that meeting, the OICH: Committee requested that the Building Commissioner issue a stop work order based on the discrepancy between the proposed location and the actual location of the new foundation. The following day, February 10, 1998, the Cominiss.iorter issued a stop«-ork order. 4 93-30-1999 1O:43RM FROM QUIRK & CHRMBERLRIN TO 7905230 P.06 DISCUSSION A. Preliminary Injunction: Plaintiffs seek a preliminary injunction preventing the OICH Committee from taking any further action with respect to the building of their new home. They contend that the OICH Committee hearing violated the statutory requirements of G.L. c. 40C, § 1 I. First, argue plaintiffs, the four day notice of the February 9, 1998 meeting violated the statutory notice provision which requires that notice be given fourteen days prior to such hearings. Second, the purpose set forth in the notice was "discussion" and the GKH Committee took punitive action beyond the scope of the notice. Finally, plaintiffs contend that the 01(H Committee's request of a stop-,work order was arbitrary and capricious because the location of the house is a matter outside its scope of authority. In opposition to the preliminaryy injunction., defendants OICH Committee and the Building Commissioner assert that the Superior Court does not have jurisdiction to issue the requested injunction. The defendants are correct_ Under § I 1 of the OKH Act, a party aggrieved by a local comnrtittee's decision may appeal to the regional commission. A party aggrieved by the regional comihission's decision then may appeal to the local District Court. Appeals from the final judgment of the District Court may be pursued.in the Appellate Division. Ste § 1 I of the OICH Act. Thus, this Court does not have jurisdiction to grant the plaintiffs' request for a preliminary injunction against. the OKH Committee. Because the Superior Court lacks jurisdiction, this Court need not respond to the defendants' additional arguments in opposition to the plaintiffs' request. However, due to what this Court vietivs as the arbitrary and capricious attitude of the OKH Committee, as evidenced by its behavior in this matter, this Court feels 5 93-30-1998 la:43RM FROM QUIRK & CHFMBERLAIN TO 7906230 P.07 compelled to comment on the merits of the plaintiffs' claim. After carefullv reviming the record, it is apparent that the plaintiffs have made out a meritorious claim for injunctive relief because they are able show irreparable injury and a likelihood of success on the merits. The 0KH Committee failed to provide adequate notice of its February 9, 1998 meeting, it acted bevond the scope of the announced purpose of the meeting, and it arbitrarily and capriciously requested that the Building Commissioner issue a stop work order on grounds beyond =,he scope of its authority. B. Order for Mandamus: In. support of their request for an order of mandamus, plaintiffs contend that the Building Commissioner acted outside the scope of his authority by issuing the February 10, 1998 stop ,vork order because the issuance was not based on any zoning violations. Relief in the form of mandamus is appropriate to set aside an illegal performance of a duty by a public official in the "area of building and zoning code enforcement." Readitw v. Attornev General, a63 Mass. 266, 269 at note 3 (citations omitted). Our Supreme Judicial Court has held that mandamus is an appropriate remedy where a building inspector acts outside the scope of his authority conferred by G.L. c. 40A. Oullette v_ Building Inspector of_Quin cv, 362 Mass. 272, 277 (1972); Castelli v. Board of Selectmen of Seekonk, IS Mass. App. Ct. 711 (1983)(affirming the Superior Courts revocation of a stop work order). In Castelli, a building inspector, who had signed a stop work order, later admitted that he did not agree with the order because he had determined that the project in question was not in violation of zoning by-laws. Castelli, 362 Mass. at 713. The court found that the evidence supported the determination that the 6 03-30-1999 10:44PM FROM OJIRK & CHRMBERLRIN TO 79062.30 P.09 building inspector had repudiated the stop order or had shown the order was not a result of his independent action or prompted by any zoning considerations. Id. at 71 3. As a result, the court held that where the building inspector had not issued the stop work order as a result of his independent judgment in good faith, the inspector had acted outside his scope of authority. Id. at 714-715. This Court finds that the Building Commissioner acted outside his scope of authority by issuing the stop wort: order in the present case. By a letter dated December 23, 1997, the OKH Committee requested that the Building Commissioner issue a stop work order based on the height and location of the new house as built. In a letter dated January 21, 1993, the Building Commissioner informed the 01CH Committee of his intention to lift the stop work order after determining that "both the height and location (of the revised plot plan were] substantially in conformance with Zoning and the intent of the 0.1CH. act.." In a letter dated February 9, 199S, the OKH Committee again requested that the Building Commissioner issue a stop work order based on the height and location of the new house as built. The follwAng day. the Building Commissioner issued the- stop work order in question. The Building Commissioner had already determined that the height and location of the new house as built was in conformance with zoning law and the intent of the OI E Act. Because the issuance of the f anuary 10, 1998 stop work order was not based on zoning considerations nor a result of the Building Commissioner's independent action, the Building Commissioner acted outside his scope of authority. Accordingly, the plaintiffs are entitled to an order of mandamus revolting the Ianuary 10, 1998 stop work order. 7 03-3a-1996 10:44RM FROM QUIRK & CHRMBERLRIN TO 79OE230 P.09 This Court, however, may not order the Building Commissioner to allow construction to proceed pursuant to the plaintiffs' building ,permit. See Castelh v. Board of Selectmen of Seekonk, 15 Mass. App. Ct. 711, 716 (1983). That order "could interfere with proper enforcement action which. . .ought to be passed upon at the local administrative level before resort to a court_" Id. C. Motion to intervene The Dugases move to intervene in this action on the grounds that, as immediate abutters, they have an interest in the Rudders' compliance with the OKH Act and the Certificate of Appropriateness. This Court chooses not to exercise its discretion under Mass. R. Civ, P. 24 (b) to permit the Dugases to intervene. The arguments put forth by the proposed intervenors are, in essence, no different than those argued by the defendants. Thus, the interests of the Dugases are adequately represented by the defendants. See Planned Parenthood Leaeue of Massachusetts, Inc. v, Attornev General, 424 Mass. 3S6, 599 (1997). 8 0.3-30-1999 10:45AM FROM 'QUIRK & CHAMBERLAIN TO 79OS230 P.10 ORDER For the foregoing reasons, it is hereby ORDERED that the plaintiffs, motion for order of mandamus is ALLOWED in part and DENIED in part. Accordingly, the Building Commissioner for the Town of Barnstable is hereby ORDERED to revoke his February 10, 1998 stop work order. Further, it is hereby ORDERED that the plaintiffs' motion for a preliminary injunction is DENIED. :Finally, it is hereby ORDERED that the motion to intervene of Joseph F. Dugas and Edith W. Dugas is DENTED. Richard F. Connon Justice of the Supezxor Court DATED: March ?7 , 1995 sr: s Clerk TOTAL P.4a 0.3-31-1993 11:34gM FROM QUIRK & CHRMBERL;IIIN TO 79OS230 P.01 QUIRK AND CHAMBERLAIN, P.C. —7ttcl zrzt l and Coarzi£LLozl at -faces 99 Wl":6)w STREET JAMF5 M OUIRK,JR. ppgT OFFICE BOX 49 ROBERT C.CHAMBE„R6AIN YARMOLiTHPORT, MASSACHUSETTS 02679.0C40 BARNSTABLE OFFICE PAMELA B.MARSH POST OFFICE BOX 92 SG8/3o2-62:62 THOMAS J.PERRrNO BARNST.ABLE.MA 02630 FACSIMILE:GEI'�F_.�•Fn7oD ANA5TASIA WEL511 PERRINO 5C9/362-43i4 OF COUNSEL WILLIAM E.,CROWELL,JR.. FACSIMILE COVER LETTER DATE: 9 t� TO: FAX NO. : FROM: i OUR FAX NO. : FILE NO. : NO. OF PAGES: (including this cover sheet) 0.3-31-1339 11:.35RM FROM QUIRK CHRMBERLRIN TO 790623a P.a2 ?fib Maw. 448 NORTH EASTERN REPORTER, 2d SERIES 15 Mass.App.71L 2- Zoning and Planning 0-356 Frank J. CASTELLI et al,t Building permit granting authority has obligation to pass upon applications for per. V. mit in each instance under serious sense of BOARD OF SELECTMEN OF responsibility imposed upon it. SEEKONK et al.2 0,47I 3. Zoning and Planning Appeals Court of Massachusetts, Where chairman b'f town selectmen Bristol. caused town health agent to go to building a Argued March 14, 1983. inspector's house to order him to sign stop work order with respect to renovation of Decided April 29, 1983. store, notwithstanding that inspector did not personally find anything to be wrong with job and expressed opinion that store was not being"reconstructed" but was be. Owner and lessee of premises sought revocation of stop work order with respect ing renovated and repaired, trial judge rea- to renovation, of store premises. The Supe- yonably concluded that building inspector rior Court, Bristol County, Mone, J,, found had not afforded owner independent judg- that stop work order affecting building per- ment in good faith to which he was entitled *� lmit was invalid and ordered that owner be and that permit revocation was invalid. ' allowed to proceed with renovation in ao- M•G.L.A, c, 40A, § ?. - eordance with building permit, and town 4 Zoning and Planning ea749 board of selectmen and building inspector appealed. The Appeals Court, Cutter, J., Inaction arising from improper revoca^ held that: (1}evidence justified trial judge Lion of building permit, portion of trial in determining that building inspector had jades order that owner be allowed to pro- :' repudiated stop order or shown it not to teed with renovation in accordance with g permit,ermit, which could interfere with have been his independent action or prompted by any zoning considerations and proper enforcement action which aught to be passed upon at local administrative level " in vacating stoporder, but {2) portion of before resort to court, would be reversed triol judges order allowing owner to pro- �'"~F and remanded, bi.G.L.A. a 40A, §§ 1 et teed with renovation could interfere with 74. proper enforcement action which ought to seq., be passed upon at local administrative level Wore resort to court. Max Volterra, Town Counsel, Attleboro, Affirmed in part; reversed and re" for defendants. .`r.p;•',+��ygy.. ",, manded in part. .-•.�;:. Frederic J. Torphy, Fall River,for plain- tiffs. I. Zoning and Planning Before GRANT,CUTTER and KASS,JJ. Town official charged with deciding CUTTER, Judge. whether, under by-law, building or compa- rable permit should issue is under duty to Casteili owned an ice cream store in act in fair, judicial and reasonable manner Seekonk in a zone then designated forth aw upon evidence presented, keeping in mind way business by the town's zoning y- objects of by-law; he cannot with propriety (the by-law), § 7.1(1979). The store stands act in unreasonable, arbitrary,whimsical or on 1.75 acres of land and is a wooden ro he capricious manner, building erected in 1964, prior 1. George Karousos, lessee of the locus. mrs. 2• 'rhe buildins inspector of Seekonk. Castelli testified (and it was also agreed) that she and her husband owned the store premises in 1$80. 03-31-1993 11:.36RM FROM QUIRK CHRMBERLRIN TO 7906230 P.03 I CASTELLI v, BOARD OF SELECTMEN OF SEEKONK Mass. 769 Cite as 446 N,F.2d 765( INS.App. 101W adoption of the by-law. it is a non-con- town health agent to go to the building forming structure because it has a front inspector's house (when the latter was sick r yard setback of only about twenty-two feet in bed) to order him to sign a stop work which is less than the seventy-foot setback order with respect to the renovation of the (front yard) requirement of the by-law store. Motta testified(at trial in the Supe- (§ 7.4) in effect in March, 1980. Castelli rior Court) that "he couldn't say that operated an ice cream and restaurant busi- [he] agreed" with the order but signed it ness on the premises from 1966 to January, because Del Rosso directed him to do so and 1980, when Karousos leased the store with not because of anything he personally the intention of continuing the same busi- found to be wrong with the job. He ex- Hess. pressed the opinion that the store was not being "reconstructed" and that the work In March, 1980, Critelli obtained (with g being done was renovation and repairs. l by-law on the part of >i; full knowledge of the by a He was aware that the style of the roof was V " the buildinginspector,see note 2, supra) a Y l� . renovations to the being changed, that solid glass windows building permit to do repo °'< •' store, including remodeling the interior, were to replace dilapidated jalousie win- placing new siding on the exterior, substi- dows on the porch that siding on the outer 1980, a fire are luting or adding new windows, and install- walls was to be redone, and that the porch .,.. Aa was to be substantially enclosed. The ing new wiring. On March caused damage to part of the roof and rear building was to be brought into oonformity code and �I ;i::.,�-`•' ',;� of the building. There was no damage to with the then current building the walls, structural supports front and insulation was to be installed in walls in middle portion of the building,plumbing,or order to save energy. 1 foundation. Castelli applied to the building The plaintiffs did not appeal from the z: inspector for a permit to continue the repo- stop order to the town zoning board of vations started earlier and to repair the fire appeals. See G.L. c. 40A, § 8 and the by- damage. No change in the area covered by law, § 14.21. Castelli, upon receipt of the the store was proposed. The estimated cost stop order on May 15, 1980, ceased to pro- of the work(about$9,000)was less than the oeed with the work. The plaintiffs then sum which, under the by-law, § 2, would instituted this proceeding in the Superior cause the work to constitute a "substantial Court seeking revocation of the stop order improvement"for at least some purposes of and injunctive relief against any order to the by-law possibly applicable to this case Castelli to remove the store. (? if by analogy. As to non-conforming usesA Superior Court judge on April 1, 1981, Generally,see G.L.c.40A, § 8,as revised by made findings of essentially the facts out- St.1975, c. 808, § a. lined above. He pointed out that,when the The building inspector, after inspecting stop order was issued, the selectmen as a the building, determined that the proposed group had adopted no vote that Castelli was work constituted renovation and repair(be- in violation of the by-law. Indeed a letter ,f cause of the fire)and was not a reconstruc- of May 15, 1980, from Del Rosso to Castelli tion of the building. A permit allowing the stated that the selectmen had not yet re- work to be continued was issued on April viewed the order with the building inspec- ' 17, 1980. for because of the latter's illness. In re, From April 17 until May 15, 1980, work fiance on Ouellette v_ Building Inspector of { proceeded and funds were expended. The Quincy, 362 Mass. 272, 276-278, 285 N•E.2d building inspector visited the store several 423 (1972), the trial judge ruled that an times during this period and determined action in the Superior Court"lay to review I: that the work was proceedingin accordance whether the step work order [of May 15, with the permit. 1980] was valid." The building inspector's ; l: The defendant Del Rosso, chairman of testimony before the judge justified him in the selectmen, on May 14, 1980, caused the finding that the order revoking Castelli's {{ ball N.P.10-18 ;i I i.: I:� 03-31-1998 11:37PM FROM D'_lIRK HRMBERL�IN TO 79062.30 P.04 770 Mass. 448 NORTH EASTERN REPORTER, 2d SERIES permit was issued, "not on the basis of [31 The trial judge in the present case, non-compliance with zoning requirements on the evidence, reasonably concluded that but rather on account of improper interfer- the building inspector had not afforded Gas- ence with [the building inspector's] telli the independent judgment in goad duties by other . .. (town] officials," See faith to which he was entitled and that the the Ouellette case, at 276, 285 N,E.2d 423• permit revocation was invalid under the The building inspector admitted, as the Ouellette cage,362 Mass. at 276,296 N.E.2d judge found, "that he considered ., , (Cas- 423.4 The evidence justified the judge in telli] not to be in violation of the by-law."a (a) determining that Ae building inspector, by his testimony, had repudiated the stop [1,21 The Ouellette case tat 276-2T8, order or had shown it not to have been his '+ 285 N.E.2d 423)appears to recognize that a independent action or prompted by any zon- "' landowner is entitled to an honest, uninflu- ing considerations,and(b)vacating the stop eneed opinion rendered in good faith by a order and treating it as a nullity. town official charged with deciding wheth- The Ouellette case, $62 Mass. 272, 285 er, under a by-law, a building or compare- N.E.2d 428,supra,was decided under G.I..c, ble permit shall issue. Such an official,like 40A, as that chapter existed prior to the the building inspector in this ewe, is under comprehensive changes effected by St.1975, R' a"duty to act in a fair,judicial,and reason- c. 808, § 3. The revised provisions of § 7 l al able manner upon the evidence . . . present- were discussed by this court in Neuhaus v. "i ed . . . keeping in mind the objects of the Building Inspector of Marlborough, 11 by-law." He cannot with propriety "act in Mass.App•230,415 N.E.2d 235(1981),decid- an unreasonable, arbitrary, whimsical, or ed only about two months before the trial ' <>• capricious manner." See Butler v. East judge decided the present case. In the k. Bridgewater, 380 Mass. 33, 38, 110 N.E.2d Neuhaus case (at 162),it was said that"the 922 (1953). The permit granting authority provisions of the present G.L. c. 40A ... >` has an obligation "to pass upon . . . [appli- require that all questions concerning the ;.,,. for cations a permit]to each instance under enforcement of valid zoning . .• by-laws be the serious sense of responsibility imposed determined at the local administrative level upon" it. Id. at 37, 110 N.E.2d 922, See before resort may be had to a court for ,. .",,,.-�'.'•::`;.'s also Board of Health of Woburn v. Sousa, enforcement"(emphasis supplied). In that 338 Mass. 547, 552, 156 N.E.2d 52 (1959); case, neighbors of a landowner holding a McDonald'g Corp, v.Selectmen of Randolph, building permit were seeking to require the 9 Mass.App. 930,832, 399 N.E.2d 38(1980); Marlborough building inspector to revoke a 1- ;,.M a' 49: building rmit which the neighbors felt 4 Rathkopf, Zoning and Planning, §§ g pe 04-49.05,49.09(4th ed,as amended to 1983}. had been issued in violation of the zoning A g p .'t+.,, g. At this stag of this proceeding, for reasons 4. The zoning bylaw provided(§ 15.1)that the ''+ti3 stated below, we need not determine whether "by-law shalt be enforced by the .. Islelect- �., ctor of lbluildings'• the building inspector was correct in his deter- rren through the ii]nspe is 4. mination that Castedi was in compliance with who"shall approve no application ... or per- the by-law, although there is strong indication mil ..- except in conformity with this bylaw in Berliner v, Feldman,363 Klass.767,773-775, (emphasis supplied). We need not decide k r 298 N.E,2d 153(1973),that the building inspec- whether the by-law provision is inconsistent for justifiably treated the proposed renovation with the first sentence of G.L. C. 40A,§ 7, as 4 as permissible under the by-law. Compare appearing in St.1975,c-308,§ 3,which charges Strazzulla v, Building Inspector Of t�ellesley, the building inspector, if there is one, with the se• 3$7 Mass, 694, 697. 200 N.E.2d e63 (1970). zoning by-law enforcement,rather than Certainly no par; of the store's renovation ap• lectmen, for here the trial judge found(as al pears to have had any relevance to its only ready stated) that the selectmen as a group non-conforming aspect, viz. its inadequate set- never acted upon the revocation of Castelli's back under the by-law, The photographic ex- permit. hibits strongly suggest that the renovated building, if completed, will be a more sightly (and probably a safer) building than its prede- cessor. r 03-31-1998 11t.3941 (ROM 01_11R;K 2 CHAMBEERL=iIN TO 7906230 P.05 _ 1 ' 1 i . I WHITNEY v. COM- Maus. 771 f cite as ass N.E.Zd 771 (Nbss.App. tees) i r. by-taw. This court ruled (at 166) that the that. date, Castelli is not to proceed with provisions of the second sentence of the further work under his building permit, second paragraph of the revised c. 40A, From decisions by local officials involved in § 7,3 specifically precluded such court en- any enforcement action which may take forcement action. place, timely appeals to the town's zoning (4) The determination that the stop board of appeals may be prosecuted, and work order affecting Castelli's building per- judicial review of any enforcement deci- i# mit was invalid (essentially because it did slons by that board may be sought. On and not represent the building inspector's rode- after May 25, 1Q83, further action consist. pendent judgment in good faith) and that ent with this opinion may be taken in the the stop work order should be withdrawn Superior Court and Castelli may proceed was within the general grant of jurisdiction with the work of renovation under his to the Superior Court contained in the last present permit if it has not then been re- sentence of the present § 7 (see note 5, voked or otherwise affected by valid action supra). It does not appear to have been of appropriate town officers. i judicial enforcement action of a type specif- So ordered. F! ically forbidden by the second sentence of the second paragraph of § 7 (see note 5. E t, o KEYNUMEEASrSIEM il> supra). The trial judge, after holding the r tl stop order invalid, however, proceeded to order that Castelli "be allowed to proceed with the .. . renovations in accordance he building permit." This p is Mass.App. lOQ¢ with ; t art of the John G. WHITNEY et al. Judge's decision could interfere with proper ; enforcement action which, under the re- v, '' ' vised G.L. c. 40A, ought to be passed upon COMMONWEALTH. at the local administrative level before re- sort to a court. See the discussion of the Appeals Court of Massachusetts, f! general purpose of the revised c.40A in the Suffolk. Neuhaus case,at—- 415 N.E.2d 235. Argued April 13, 1953. ' See McDonald's Corp. v. Seekonk 12 ' Mass.APp, ,381 -- Decided April 29, 1983. E Mass.App.Ct. Adv,Sh. (1981) 1508, 1509-1511, 424 N.E.2d Further Appellate Review Denied 1I36, July 1, 1983, �a So much of the judgment as vacates the Appeal was taken from a judgment J g pp 1 gment of stop work order ;thus determining that the the Superior Court in an eminent domain stop order was wholly ineffective) and dis- case. The Appeals Court, Suffolk County, misses the (Aunts or prayers seeking dam- held that statute providing that judge pre- l ages is affirmed. The balance of the judg- siding at first trial in an eminent domain ! ment is reversed and the case is remanded case shall file written decision or finding to the, Superior Court, There further ac- which shall include statement of any dam- tion is to be withheld until May 25, 1983, to ages awarded and report of material facts >i permit the initiation of any appropriate en- found by him, and that at second jury trial 1} fnrcement action under the by-law. Until decision or finding, including any award of !� 5. 'Che sentence reads in part: "No action (or] The final sentence of the revised 4 7 reads; i. 'uit ... shall be maintained in any court .. to "The supericr court shall have jurisdiction to + comPel the ... alteration . .. of any structure enforce the provisions of this chapter,and any nr part of a structure ,,, by reason of ary .. by-laws adopted thereunder, and may re- `olaUon of any coning by-law except in strain 6y injunction violations thereof," 'iccordarce with the provisions of this section, i! ' section eight and section seventeen."subject to +i pni'.'iso which need not be quoted. .HJYJ.Ch•.iCR�{J.9 N.f.7,7 8 `� . i; TOTAL P.05 A LEGAL DEPARTMENT, TOWN OF BARNSTABLE OFFICE OF TOWN ATTORNEY Inter-Office Memorandum February 26, 1998. TO: RALPH CROSSEN, Building Commissioner TO: OLD KINGS HIGHWAY COMMITTEE FROM: RUTH J. WEIL, ASST. TOWN ATTORNEY RE: REQUEST FOR WRITTEN, PARAGRAPH-BY-PA AGRAP RESPONSE TO ALLEGATIONS IN RUDDERS COMPLAINT OUR FILE REF. NO.: 98-0027 ------------------------------------------------------------------------------- Attached please find a copy of the complaint in the Rudders action, the allegations of which we would appreciate your written responses in a paragraph- by-paragraph format, either by separate document or directly in the margin in the Complaint, whichever is easier for you. We shall diary your responses in one week.....the Answer to Plaintiff's Complaint is due to be filed with the Court and we will need sufficient time to edit your responses in that pleading. Thank you for your anticipated prompt attention to our request. cg Atchmt [[98-00271p1s-ans] . TO PLNTIFF'S ATTORNELEASE CIRCLE TYPE OF ACTION INVOLVED: TORT �pn✓�. MOTOR VEHICLE TORT CONTRACT EQUITABLE RELIEF COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SUPERIOR COURT NO. 98-111 A TRUE COPY ATTEST RICHARD RUDDERS and JOAN RUDDE vs. DEPUTY SHERIFF BUILDING COMMISSIONER OF THE TOWN OF BARNSTABLE and OLD KING' S HIGHWAY COMMITTEE co ' O _ � r'l SUMMONS AND ORDER OF NOTICE N To the above-named Defendant _J You are hereby summoned and required to serve upon. .Thomas J. Per.rino, Esq . uire, . . . . . . . . .. . . Quirk and Chamberlainr. , , plaintiff's attorney, whose address is .p.•. .O. Box 40,,. , _ , , . . 99 Willow Street, Yarmouth Port, Massachusett. s. 02675. -0040 ... . . . . . . . . . . . .. . . . . ., an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.You are also required to file your answer to the complaint in the office of the*Clerk of this Court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. WE ALSO NOTIFY YOU that application has been made in said action,as appears in the complaint,fora preliminary injuction and that a hearing upon such application will be held at the Courthouse at . . .Barnstable in the County of . . .Barnstable , , , , , , . , in the first session without jury of our said Court on MondaX . , , , , , , , , the ,twenty-third day of February, 98 2: 00 P. t,A, c Y: . . . . . . .. . . A. D. 19 , at. . . . . . . . . . . . . . . . o'clock X.M., at which you may appear and show cause why such application should not be granted. Witness, ROBERT A. MULLIGAN , Esquire, at Barnstable, the . ,nineteenth day of .FebruarX , . . , , , in the year of our Lord one thousand nine hundred and ninety—eight. . . . . . . . . . . . . . . . . . . . . . .. . . .. ` ` n �Asst- rk NOTE: When more than one defendant is involved,the names of all defendants shall appear in the caption.If a separate summons is used for each defendant, each should be addressed to the particular defendant. `4 '.NOTICE TO DEFENDANT You need not appear personally in Court to answer the complaint but if you claim to have a defense. either you or your attorney must serve a cop} of your written answer within 20 dais as specified herein and also file the orieinal in the Clerk's office. COPY COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS. SUPERIOR COURT DOCKET NO. i RICHARD RUDDERS and ) JOAN RUDDERS, ) Plaintiffs ) VS. ) I BUILDING COMMISSIONER FOR THE ) TOWN OF BARNSTABLE and THE ) BARNSTABLE OLD KING'S HIGHWAY ) COMMITTEE, Defendants COMPLAINT PARTIES 1. The plaintiffs, Richard Rudders and Joan Rudders, are the owners of property located at 36 Sunset Lane, Barnstable, Massachusetts and have owned that property since the 1970 ' s. 2 . The defendant, Building Commissioner, is the zoning enforcement officer for the Town of Barnstable and for the Old Kings Highway Committee. 3 . The defendant, Old King' s Highway Committee, (hereinafter referred to as "OKH" ) , is the statutoryi designated dO 'd entity for review of proposals and to issue Certificates of Appropriateness for buildings within their jurisdiction pursuant to Mass. Gen. Laws Ch. 40C. JURISDICTION 4 . This is an action for mandamus and for a declaration of the rights of the parties pursuant to Mass. Gen. Laws Ch. 231A. QUIRK AND :HAMBERLAIN. P.C. "JS♦c.c:NO COUNSELLORS ..AW —OW STREET ZC57 JFgCE BOX 40 =VC_"--CR' MA,02675.W40 _52 62E< I i i f - i 1. -2- 5. The plaintiffs assert there is an actual controversy between the parties which requires the Court to adjudicate and declare the rights of the parties with respect to the jurisdiction of the defendant, OKH. FACTS 6. On o= about October 8, 1997 the defendant, OKH, at a duly advertised public hearing approved the demolition of an existing structure located on the Rudders ' property and approved a Certificate of Appropriateness for a proposed new dwelling to be located on the same site. See Exhibit "A" , Application for Certificate of Appropriateness. 7 . On October 8, 1997 on the night of the initial Old King' s Highway hearing on my Application for a Certificate of Appropriateness, my neighbor to the south, Joseph Dugas, entered my home without invitation or warning and issued a threat stating that "unless you build this house the way I want you to, you will never build it. What do you think about that?" 8. At the Old King' s Highway meeting later that night, Mr Dugas expressed concern over his view of the water from his bedroom window. A discussion ensued over the location of the new house in relation to its distance from the road and from the original foundation. Mr. Dugas sought to have the house moved back from the -old foundation a distance of approximately 9-10 feet, but agreed that 3-4 feet might be all that was required to QUIRK AND -HAMBERLAIN, P.C. -ORNEVS♦ND COUNSELLORS LAW 19 WALLOW STREET 10ST OFFICE BOX 00 ="OL7CRT 4A 02675-0040 _.E 362 6262 !G5.352 605C I � � ,M i -3- I preserve his view. The plaintiffs and Mr. Dugas agreed to move y PP the foundation back approximately 3-4 feet from the original An. foundation to accommodate Mr. Dugas. Due to a measurement error made by the plaintiff, the plot plan submitted to Old King' s Higy showed the proposed foundation of the new house as being ob qhwa 35 feet back from the property line rather than 26 feet which is �L where the plaintiff originally intended the new home to be i located. i i 9. The location of the new foundation, as built, is set j back approximately 30. 6 feet from the front property line. The i old foundation was located approximately 26.2 feet from the front property line. Therefore, the new foundation is approximately 4 .4 feet further back than the old foundation. See Exhibit "B" , Revised Plot Plan. 10. At the hearing, Mr. Dugas expressed his concern over his view of the water from his second story window. The old foundation was 2 feet behind Mr. Dugas ' home. The location of the new foundation is 7 feet further back from the road than Mr. Dugas ' home. See Exhibit "C" , Eagle Surveying, Inc. Plot Plan. 11. After the Old King' s Highway meeting of October 8, 1997, the plaintiff saw the plot plan for the first time and realized the measurement error. The plaintiff communicated with the contractor regarding the location of the proposed foundation and instructed him to contact the Building Department and submit QUIRK AND :HAMBERLAIN. P.C. "TORNEYS AND COUNSELLORS AT.LA W 99 WILLOW STREET POST OFFICE BOX 40 -Z-OUTHPORT.wA 02675-0040 508/362 6262 :S-LE 508,352-'.060 ,I . � t� w4 revised plan reflecting the 3-4 foot setback as agreed. , Prior ' o demolition o the plaintiffs , original home ;;f ��� t fh 'J b P , the contractor checked with the Building Department to determine whether a i' difference of approximately 4 feet on the proposed plan and what was proposed at the Old King' s Highway meeting required �r submission of a revised plan. The plaintiffs learned that a revision was not required because the final location would ✓/ appear on the as built and as long as zoning regulations were - + complied with a 4 foot variation was not an issue. Because of that , a revised plan was not submitted. In reliance on this A' information, the plaintiffs proceeded with the demolition of the old home and the construction of the new home. 12 . In November, 1997, the Building Commissioner issued a building permit for construction of the new dwelling. An abutter, Joseph Dugas, has appealed the Building Commissioner' s decision to issue the permit. 13. On or about December 17, 1997 the defendant, OKH, at the request of an abutter to the Rudders, Joseph Dugas, conducted what purported to be an informal discussion of the project. However, based on the punitive action taken, without dr �1 notice to the property owners, the hearing was more in the U nature of a Show Cause Hearing. 14 . The plaintiffs were given no notice of this hearing. rAs a result of this hearing, the OKH Chairman, Attorney Freeman, QUIRK AND CHAMBERLAIN, P.C. ITTORNEVS AND COUNSELLORS AT LAW J WILLOW STREET PO I! / POST OFE!CE BOX a0 r ' -RMOUTHPORT vA 02 6 7 5-0040 508i 3526262 =ACSIMILE `_26:362-6060 1 wrote a memorandum directing the Building Commissioner to issue a Stop Work Order on the project. See Exhibit "D" , Memorandum dated December 23, 1997 . 15 . On or about January 7, 1998 another hearing was held "by the OKH at the plaintiffs ' request. Present were the plaintiffs, their attorney, the plaintiffs ' contractor, Russ Hamlyn. The plaintiffs ' neighbor to the south, Joseph Dugas, was also present. 16. At that hearing, the discussion involved the location of the foundation of the new house. After an extended discussion it was agreed and understood that the issue of 1 04 location of the new foundation would be referred to the Building Commissioner and upon the Building Commissioner' s satisfaction the Stop Work Order was to be lifted. Accordingly, a revised plot plan showing the old foundation and the new foundation was submitted to the Building Commissioner. See Exhibit "E" , Revised Plot Plan showing old foundation and new foundation as built. 17. The Building Commissioner reviewed the matter and rendered his opinion that he was satisfied with the location of ire the new foundation. The Building Commission determined that "both the height and location are substantially in conformance i I with Zoning and the intent of the O.K.H. act. " As a result the i i QUIRK AND I CHAMBERLAIN. P.C. .iTORYETS An0 COUNSELLORS AT LAW j 99 WILLOW STREET POST OFcICE BOX 40 >PMOOTHPOR♦ MA-02675-OOA0 __MILE 5._8 j62.^060 _6_ I i Stop Work Order was lifted on or about January 21, 1998. See I Exhibit "F" , letter dated January 21, 1998 from Ralph Crossen to Peter Freeman. 18. As work recommenced on the project, Mr. Dugas I continued to raise other perceived problems, this time through the Town Conservation Commission. Although the Conservation Commission had previously noted no jurisdiction, a warning was issued to the plaintiffs. p As a result, the plaintiffs have been , required to file a Request for Determination of Applicability with the Town of Barnstable Conservation Commission. A hearing on the plaintiffs ' Request for a Determination of Applicability is scheduled for March 3, 1998. 19. On or about February 2, 1997 by telephone message received after 5 : 00 p.m. to plaintiffs ' counsel it was learned that OKH had scheduled a meetingfor February 4, 1997 . The ! Y apparent purpose was to discuss the construction of the plaintiffs home. Due to scheduling conflicts and for the reasons set forth in correspondence to Attorney Freeman, counsel for the plaintiffs did not attend this hearing. See Exhibit "G" , letter dated February 4, 1998 . 20. Upon information a belief there was no legal notice of this hearing by publication or otherwise. Additionally, based on the understood agreement reached at the Januarymeetingand �fi the Building Commissioner' s removal of the Stop pU � P Work Order QUIRK AND —HAMBERLAIN. P.C. --CRNEYS•NO COUNSELLORS i ' AT LAW ' 99 WILLC'N STREET ! POST OFFICE BOX 40 --WOUTHPOPT MA 02675-0040 "8.362 6262 1 1 "d 362 6060 - I S` i i _7_ i further action by OKH was not contemplated and constitutes � S interference with the Building Commissioner' s enforcement authority. In essence, the defendant, OKH, was not satisfied with the Building Commissioner' s determination, although, it was dJ understood that the defendant, OKH, would abide by the Building �i Commissioner' s determinations. 21. On or about Friday, February 6, 1998 the Chairman of the OKH, Attorney Peter Freeman, appeared at the Rudders ' property and demanded that all work stop immediately. The I i conduct of Attorney Freeman in attempting to intimidate, I interfere and/or coerce the contractor to stop work without I i authority constitutes willful abuse of authority on the part of j Attorney Freeman. 22 . On the morning of February 9, 1998 it was learned that the defendant, OKH, scheduled a further meeting for Tuesday, I February 9, 1998 at 2 :00 p.m. The only agenda item was the plaintiffs ' project. As set forth in the purported notice, the agenda indicated "discussion of the construction at 36 Sunset Lane, Barnstable, Massachusetts. See Exhibit "H" , Notice of Meeting. 23 . The meeting was noticed for discussion only, however, punitive action was taken against the plaintiffs in that the defendant, OKH, requested the defendant, Building Commissioner, to issue a Cease and Desist Order based on a 4 to 4h foot i QUIRK AND CHAMBERLAIN, P.C. i =TTORNEYS AND COUNSELLORS i AT LAW 99 WILLOW STREET °OST OFFICE BOX AO a RMOUTHPORT MA 02575 0040 508.'362 62E2 'aCSIMILE `G&3E2 6ifi0 9 I i —8— discrepancy between the proposed location and the actual location of the new foundation. See Exhibit "I" , Decision of I I OKH meeting of February 9, 1998. i 24 . As a result of the OKH action on February 10, 1998, the Building Commissioner issued a Stop Work Order. This was done despite the Building Commissioner' s satisfaction with the i project ' s zoning compliance and substantial compliance with the intent of the OKH act.F This Stop Work Order is solely at the direction of OKH and is based only on a 4-4h foot difference in location of the foundation. See Exhibit "I" , Decision of OKH meeting of February 9, 1998. Q 25. The actions of OKH are beyond the scope of its jurisdiction and constitute unreasonable interference with the conduct of the Building Commissioner and to thisssioner with re Bildi C 9 project. COUNT I - MANDAMUS 26. The plaintiffs restate, reallege and incorporate Paragraphs 1 through 25 of this Complaint as if fully set forth herein. 27. The Building Commissioner previously expressed his satisfaction with the project' s compliance with zoning and with the intent of the OKH act. The action of the OKH in ordering the Building Commissioner to issue a Cease and Desist Order based on location is beyond the jurisdiction of OKH and QUIRK AND r:HAMBERLAIN. P.C. --ORNEYS AND COUNSELLORS �"}�� J`/°�� �♦ppl2 LOW STREET /ll/f POSTOST OFFICE BOX AO -RMOUT—ORT .MA 02675-0040 50 262 =+C S:MiLE IE 5a/352 5060 i I -9- I i constitutes an unreasonable interference with the performance of the Building Inspector' s duties. 28. The actions of OKH in taking punitive action against the plaintiffs without proper notice is unlawful and, as such, the action taken at such meeting should be declared a nullity. -t,���� 29. The Stop Work Order of February 10, 1998 was based not A A� on the basis of non-compliance with zoning requirements, but op 416 rather on account of improper interference with the Building � i Fri Commissioner' s duties by the defendant, OKH. i 30. The plaintiffs are entitled to an honest uninfluenced i opinion by the Building Commissioner with respect to enforcement issues and decisions. The Building Commissioner previously ' expressed his opinion that the project complied with zoning and I the intent of the OKH act and the defendant,, ORH, has interfered -KH with that determination all to the plaintiffs ' detriment and has and will continue to sustain damage by the defendants ' actions. 0 d WHEREFORE, the plaintiffs request the following: f, 1. That a Short Order of Notice issue on the plaintiffs ' O request for a preliminary injunction; C VA 2 . That a preliminary injunction issue enjoining the defendant, OKH, their agents, servants and employees from taking any further action to prevent the plaintiffs from construction of their home located at 36 Sunset Lane, Barnstable, Massachusetts; QUIRK AND CHAMBERLAIN, P.C. OAVE�S AND COUNSELLORS AT LAW 3 A-LLOW STREET POST OFFICE BOX AO .RMOUTHPORT MA 02675-0040 `G8/362 6262 .: .:8 262 6C60 i i I I i -1 0- I I i i 3. That a permanent injunction issue as set forth in Request #2 above; and ! 4 . That the Court order the defendant, Building Commissioner, revoke the Stop Work Order issued on February 10, i 1998 and to authorize construction of the project pursuant to I i the Building Permit. COUNT II - DECLARATORY RELIEF 1 31. The plaintiffs restate, reallege and incorporate i I Paragraphs 1 through 30 of this Complaint as if fully set forth herein. 32. The plaintiffs assert that there exists a controversy which cannot be eliminated without intervention of the Court to ' establish and declare the respective rights of the parties. 33. The plaintiffs assert that the meeting itself and the action taken by OKH on February 9, 1998 meeting is unlawful in I that no proper notice was given of the meeting, that the punitive action taken could not have reasonably been anticipated based on the purported notice and, further, that the defendant, OKH, has no jurisdiction over the location of the plaintiffs ' foundation. r34 . Further, based upon the January 7, 1998 meeting it was understood that if the Building Commissioner was satisfied then t`7 no further action would be taken by OKH. The actions of the defendant, OKH, and its Chairman, Attorney Freeman, are unlawful QUIRK AND Jp♦/ :HAM.BERLAIN, P.C. AND COUNSELLORS AT LAW r'a WILLOW STREET =OST OFFICE BOA AO ='10-7SPORT MA 0267S-0040 `08/762 6262 .. LE '•_9i362 6050 I i j and beyond the scope of authority granted by statute to the defendant, OKH. 35. The plaintiffs are entitled to an honest uninfluenced opinion by the Building Commissioner, which was obtained by agreement of all concerned. The defendant, OKH, has taken action which improperly interferes with the duties of the Building Commissioner, all to the plaintiffs ' detriment and i damage. I WHEREFORE, the plaintiffs request the following: 1. That a Short Order of Notice issue on the plaintiffs ' request for a preliminary injunction; 1 I 2 . That a preliminary injunction issue enjoining the defendant, OKH, their agents, servants and employees from taking any further action to prevent the plaintiffs from construction of their home located at 36 Sunset Lane, Barnstable, i Massachusetts; 3. That a permanent injunction issue as set forth in Request #2 above; and 4 . That the Court order the defendant, Building Commissioner, revoke the Stop Work Order issued on February 10, 1998 and to authorize construction of the project pursuant to the Building Permit. COUNT III - RELIEF PURSUANT TO M.G.L. CH. 40C 912A The plaintiffs restate, reallege and incorporate QUIRK AND Paragraphs g p y CHAMBERLAIN. P.C. 1 through 35 of this Complaint as if full set forth a TTORNEYS ABC COUNSELLORS A'_A V 99—__ZI STREET herein. POST C--.CE BOX 00 _ ARMOUThoCR' MA 02675-0040 ;.5262 --CS-__ __6362-6060 . 1 -12 37 . The plaintiffs are aggrieved by the action taken by the defendant, OKH, on February 9, 1998. 38. The action of the defendant, OKH, is unsupported by the evidence and exceeds the authority of the defendant, OKH. WHEREFORE, the plaintiffs request that the Court annul the decision of the defendant, OKH, and the plaintiffs further request the following: 11. That a Short Order of Notice issue on the plaintiffs ' request for a preliminary injunction; 2 . That a preliminary injunction issue enjoining the i defendant, OKH, their agents, servants and employees from taking any further action to prevent the plaintiffs from construction of their home located at 36 Sunset Lane, Barnstable, Massachusetts; 3 . That a permanent injunction issue as set forth in Request #2 above; and 4 . That the Court order the defendant, Building Commissioner, revoke the Stop Work Order issued on February 10, 1998 and to authorize construction of the project pursuant to the Building Permit. By their attorneys, Robert C. Chamberlain, Esq. , BBO #080368 Thomas J. Perrino, Esq. , BBO 4555297 QUIRK AND CHAMBERLAIN, P.C. 99 Willow Street, P.O. Box 40 QUIRK AND Yarmouth ort MA 02675-0040 CHAMBERLAIN, P.C. P / '-ORNEYS AND COUNSELLORS (5 0 8) 3 6 2-6 2 6 2 AT LAW 99 WILLC'W STREET POST OFFICE BOX 40 :KNOUT URORT MA 5.0060 DATED: February 19, 1998 508:362�5262 SC8,362 6060 Application to 19 -97 1 V ,i Old -King s Highway Regional Historic District Commitree _�- r----!� in the Town of Barnstable for a CERTIFICATE OF APPROPRIATENESS Aralication is hereby made, iri triplicate, for, the issuance of a-Certificate of Appropriateness under Section 6 of Chapter 470, Acts and Resolves of Massachusetts, 1973, for proposed work as described below and on plans, drawings or photographs :.ccr;rnpanying this application for: CHECK CATEGORIES THAT APPLY: 1. Ei terior Building Construction: 2 New Building ❑ Addition ❑ Alteration hidicwc type of building: lam-House ❑ Garage ❑ Commercial ❑ Other ?. Exterior Painting: ❑ 3. Signs or Billboards: ❑ New sign ❑ Existing sign ❑ Repainting existing sign 4. Structure: ❑ Fence ❑ Wall ❑ Flagpole ❑ Other (Please read other side for explanation and requirements). TYPE OR PRINT LEGIBLY DATE ADDRESS OF PROPOSED WORK I,,u C,1 G /V ASSESSORS MAP NO. O'.v^:ER L/�h2� �- �b/f �►✓ !'L�[D%I�£/LS ASSESSORS LOT NO. �`�� r/ 3 H 0 M E ADDRESS .ea < r' tl TEL. NO. t%l ? 7 — G 6' C FULL NAMES AND ADDRESSES OF ABUTTING OWNERS. Include name of adjacent property owners across any public street or way. (Attach additional sheet if necessary). SAzr AQ ,0/T/At/A� AGENT OR CONTRACTOR Lt S .5 /7 TEL. NO. ADDRESS �( 3 le-14A,A- S z 4 ^14 DETAILED DESCRIPTION OF PROPOSED WORK: Give all particulars of work to be done (see No. 8, other side), including materials to be used, if specifications do not accompany plans. In the case of signs, give locations of existing signs and proposed locations of new signs. (Attach additional sheet, if necessary). 1,• ,tt . Oil L U J .J 1 Signed e Co ractor•Agemt ac w,, n +nee use. ij to Certificate is hereby VC CtJA Date Oct- r 1997 r I 6,04 ,L 7,4,!3Lq L _ , ov .'� i Town of Barnstable Old King's Highway Historic District Committee SPEC SHEET FOUNDATION._ TO /,A r� O / G oryr2rf i/I J 14d 1-v/.PSG' SIDING TYPE F/z c,,,i /t F/JCOLOR CHIMNEY TYPE COLOR ROOF MATERIAL fE�i',y/) L� ,/ COLOR p 21 Lv vy PITCH WINDOW SIZE j:26A4JLs TRIM COLOR jam/14 j iL /34c-A- r7 �%dx rj �lrr DOORS / /LOivi /7 d0 L/ lei COLOR SHUTTERS y U COLOR GUTTERS j rii DECK ti 0 GARAGE DOORS COLOR t-V f f / r/i. SIGNS COLORS FENCE COLOR NOTES: Fill out completely, including measurements and materials/colors to be used. Tree copies of this form are required for submittal of an application, along with three copies each of the plot plan. landscape plan and elevation plans, when applicable. Site plan should show all structures on the lot :o scale. f ' loo 00 29 0010 C� O CQ a O CQ DR/VE n ?000 42000 00, Iy N l oo OO i A PROPOSED PLOT F1;OF •` ,�V_ __.. ' BARNSTABLE, , MAS.S. � . c-7, 7 36 .SUNSET LANE DATE.SEPT. 19, 1997 SCALE 1" - 20' �/.�,��� JOB 3972-00 CLIENT HAMLYN ��, R ENGINEERING 'Iry t,,� 235 GREAT WESTERN ROAD P.O. BOX 713 SOUTH DENNIS, MASS. 398-3922 02660 FAX NDA-o� 1-7 3 d �z s,�(x x-y s l 1211 /'V oo 2a /V Xx r Z , 4tir I 9'.Lcz ,7p � o, ap 1 r.,I l �z7 LOTS 141 & 148 10,000 S. F. -6 a3 co Q 1 I TO THE BEST CF MY INFORMATION AS--B UILT" PLOT PLAN KNCWLEDGE, AND BELIEF THc, .ace ' BARNSTABLE, MASS. FOUNDATION S)HOWN ON Tf��eF - LOTS 141 & 143, L. C. 17933 PLAN HAS BEEN LOCATED;-'' DATE DEC. 1 1997 SCALE 1 " - 20' f�Ta E" GROUND AS INDICATED '�-`', t" �':': J08 3972-00 �'' CLIENT HAMLYN 235 GREAT uyFSItRt4 ROAD G P.O. BOX 71Z nA E NHOF. LAND SJRt�F�r�OR 50LITH DENMS, MASS. (.3q,5..3y2? 02f+60 r7T _ ,� HM TA9 sot r e4 / .5 ELEV - /J.47 O ELEVATION I l.0 DEPICTED ON THIS PLAN REPRESENTS AN APPROXIMATE �.r � /J.? � LOCATION OF THE NATURAL OR0UND 1 ELEVATION _ S N BASED ON SPOTEL, 7 • VAT IONS ' LOTS /-4 / 4-3 *p'4k 0 TAKEN BY ELECTRONIC SURVEY METHODS, ll.4o OD '1 a 10000 S.F, ; ` BENCH MARK USED: RM S O 2.0 31-t /J,o /?.e ! v ELEVATION: 12.24 NGVD + ; ci dk q • / I J.0 ( �i .c\i ak kl DWELL INO UNDER I CONSTRUCTION T.O.F. MATES SHUTOFF l?.M ` OOP , 33 ?.J I = o 10.42 /0.7 + 10.11 .{ I?.S ll.o y lO.e _ O, 00 . l0. 1.15 0.64 /0.19 M /O.ee /O.e .03 GqR 22.; Io.S+ 10.0 /O.Q? /1.1 0 0 •: • o N. #30 lots+ = T.O.F. - //.4v 9.15 0.024 ,W L 0 TS 145 & 147 TOWN OF BARNSTABLE ZONING /0000 S. F. Z ZONE RB SETBACKS 0.24 a FRONT - 20. SIDE - lO• REAR - I 0 �0 00 . - F /0.0J PRO TO THE BEST OF MY PROFESSIONAL KNOWLEDGE. f✓c R TY LINES SHOWN HEREON I" '—"-`•� - .. ... _ I NFORMA T/ON AND BEL J EF THE DWEL L l NG SHOWN WERE COMPILED FROM AVAILABLE t 1�: �r �7 _ HEREON CONFORMS TO THE HORIZONTAL SETBACKS PLANS OF -RECORD AND DO NOT I �! ` I �; i�� OF THE ZONING BY-LAW FOR THE RB DISTRICT. REPRESENT AN ACTUAL SURVEY I I .. 4 I�� , ON THE GROUND. ' i THE LOT SHOWN HEREON IS IN FLOOD HAZARD ZONE A3 (ELEV. J II THE DWELLINGS DEPICTED ON THIS AS SHOWN ON MAP 250001 000I D. DATED DULY PLAN WERE L OCA TED ON THE GROUND 2. I992.~ - . .. BY SURVEY ON JAN. S, 1998 AND ,r':�,;tip __ ,,�•;:�+ JAN. 27. 1998 AND EXIST AS SHOWN PLOT PLAN AS OF THE DATES OF LOCATION. IN THI S PLAN /S FOR PLOT PLAN BONSTABLE. NA . PURPOSES ONLY AND NOT FOR 1' `'"' SCALE: I '-40' JAN. 28. /998 RECORDING. DEED DESCRIPTIONS. �. ESTABL I SHI NO PROPERTY LINES L— 1 `� EAGLE SURVEYING , INC OR FOR CONSTRUCTION PURPOSES. 1��9/9� . e23 Route 0A Yormouthporl. MA. 02073 THIS PLAN IS VOID IF NOT (doe) 3e2-6332 STAMPED AND SIGNED IN RED, (doe) 432-4= ----- 0 /0 20 40 i BRAND To: Ralph Crossen Date: December 23, 1997 Building Commissioner By Facsimile: 790-6230 From: Peter L. rreeman, Chairman Barnstable aKH Committee Re: Sunset Labe, dar:ibLdbla 11amlym Conatrzir:tion, Ducras At the OM meeting on December 17, 1997, Joseph Dugas brought to our Attention what he believed to be two issues of noncompliance with the Certificate of Appropriateness previously granted by the Committee for the house abutting his lot, now under construction by Hamlyn Construction. Issue 1: The building as proposed and approved was to be at the same finish grade as the house that was demolished on the site. It appears that the finished elevation is d ' higher. Issue 2: The foundation Was built almost 4 ' closer to Sunset Lane than was shown on the approved site plan. In discussing Lae MaLLri, Lim CZmin&enoo rawall...1 thnt Kr. Dugas had appeared at the hearing on the application, and the exact location of the structure was a concern he raised at the hearing. be was cuuV%:iL"e4 &beat hie viow of the roster, and the relationship of the Dew structure to the surrounding buildings and the street. The Committee definitely felt that location was an issue, especially in an area like Common Fields, where the lots are small and the houses are close together, and especially where a neighbor's view can. be accommodated without detriment to the ' applinpnt These matters were reviewwd on December 17, 1997, and the 00mmitt de eRpref9sed the opinion, unanimoualyr that the construction of the house as described above, as to both issues, was is violation of the certificate of Appropriateness. It was the opinion of the Committee that the changes constituted more than minor changes, and that a atop work order should be issued by the Building Department. The location of the structure is material to this application, for the reasons stated above. Rovmver, I must also emphasize that 1......tl,:a Le alvayc a in n11r rn..v7 Cw Dr4C9ss. Our guidelines require that applicants submit "e plot Plan showing the exact location of a proposed building or structure and identifying existing relevant building= asul alructurea, a Tho conciderar-ion of TOTAL P.O'-7j "settings" i$ included in both the PUEPOse section (Section l) and in the, owors of the Act , t ' ns and duties section of the Act (Section 10j . Section 10 also calls upon the Committee to compare the proposed construction in relation to "buildings and structures in the immediate surroundings It is self-evident to as that a building's relation to other buildings in the arcia will vary, depending on its proposed location. . Sv1% Brown r CouYjsel to Old ring-8 Highway Regional ff.Latciric District Commission, agrees with the view I have expressed in this Memorandum. Both he and Z are is otherwise would get an improper and gravely dangerous that holding inconsistent with the Way that our Ustoric District Act recedent than traditionally been interpreted. I would point out that the 01M Guidelines also provide: "rt shall be the duty and responsibility of the Commission to interpret the act , , . n. Fe= a1Z these reasons, our Co=ittee respectfully urges you to issue a stop work order on theproperty. The owner would have the right to apply to our Committee for a new Certificate of APPrUPriaL'eszess, requesti.ny approval Ivr the changes he has made. ee- Owen Brown - 6y Facsimile: 790-6288 TOTAL P.03 1 700 p p i - LOTS 141 & 143 10, 000 S.F.Qi .f �- .� J06� / �/ Y O • ` / ell -77 Q). Kati• � �' �, ��' >i wO ILI i 70 THE BEST CF My INFORMATION, »AS+B UILT' PLOT P KNCkEDGE, AND BELIEF BARNSTABLE LAN '� M1�55. ' NDA T � THc. Flu roN SHOWN ON Tf-rI ZNC'F :. � ._ LOTS 141 & 143, L. C. 17 PLAN HAS BEEN LOCATED;s ,::, . E;.;,`'_ DATE DEC. 1 1997 - 933 GROUND AS INDICATED �� •' t•_-: �s; J08 397 SCALE 20 2-00 , CLIENT HAM v S'�YEE'TSER LNGINE'..................... RI11rG DEC. 1, log 235 GREAT ' STERtd ROAD P.O. 80 Da PROF. LAND 'SUR'�Ftrr SOUTH DEW4 713 �^ OR I.3gft--39� 0z�•60 .14Ae. . �--- �FQ,���J$—,?0G3 i ne i own ot itsarnsiame 9 Department of Health Safety and Environmental Services i°rEo�,,,,t► Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner TO: Peter Freeman, Chairman, 0. K. H. FROM: Ralph Crossen,Building Commissioner REGARDING: 36 Sunset Lane,Barnstable, MA DATE: January 21, 1998 I have reviewed the plot plan of December 1, 1997 and both the height and location are substantially in conformance with Zoning and the intent of the O.K.H.act, I believe the stop work order should be lifted. I intend on doing that forthwith. g980121a i . . c=4ttoznEys and�20unsEffou at -faw ' DAMES H QUIRK.JR. 99 WILLOW STREET ROBERT C. CHAMBERLAIN POST OFFICE BOX 40 PAMELA B. MARSH VARMOUTHPORT, MASSACHUSETTS 02675.0040 BARNSTABLE OFFIC- THOMAS J. PERRINO 508/362.6262 POST OFFICE BOX 9< ANASTASIA WELSH PERRINO FACSIMILE 508/362-6060 BARNSTABLE. ,MA C2E_ OF COUNSEL 508/362.43 1 4 WILLIAM E.CROWELL.JR via Facsimile (508) 362-8281 February 4, 1998 Peter L. Freeman, Chairman Old Ring' s Highway Historic District 230 South Street Hyannis, MA 02601 RE: OLD RING'S HIGHWAY MEETING FEB. 41 1998 DR. RICHARD RUDDERS OUR FILE NO 903/8533 Dear Mr. Freeman: - Please be advised that after returning from Boston, I received your message concerning Dr. Rudders and a Board meeting on February 4 . I attempted to contact you personally, but was unable to do so. I have commitments to two other matters on the 4th and, therefore, cannot be available to attend the Old Ring' s Highway meeting. I believe that we have complied with the intent of the meeting of January 7, 1998, where Dr. Rudders and I appeared to respond to the actions following the initial approval. The matter did go back to the Building Commissioner as you know. He reviewed the information and made the determination that the project was in compliance with zoning and the Old Ring' s Highway concerns. Attached please find the Building Commissioner' s file memo. Since being before your committee, Mr. Duga-9 has appealed the Building Commissioner' s decision relative to a myriad of issues raised by his counsel. He has also successfully obtained a cease and .desist order for a claim relative to the flood plain. This is now the third cease and desist order that Dr. Rudders and his wife have been forced to address. Apparently the statement made to Dr. Rudders at his house prior to the Old Ring' s Highway meeting that "If you don 't build this house the way I want it you will never build it" , continues to be the agenda being raised by Mr. Dugas. My client has suffered substantial emotional and. financial impact from the many proceedings he has been required to address. i e . Peter L. Freeman, Chairman February 4 , 1998 Page Two If I can provide more specific information to you and/or the Board, I will be glad to do sc. Unfortunately, I am not available for your meeting this evening. If, as a result of this correspondence you have any questions, please do not hesitate to contact me regarding same. Very truly yours, QUIRK AND CHAMB N,, P.C. QUIRK 1H. Quirk, Jr. , Esq. /J/� HQ/mrf Enclos re cc: D Richard Rudders TOWN OF IRA►ANSTAELE NOTICE OF IW E:i7NGS OFTCJWN M23ARTMENTAND ALL TOWN SCARDS As.Required'hy Chsptzr 3a,M26L X4 MEQFCEvARTWEV BWWRV QF_=_ NM/5z—i17/V DATE 17F M -s NG., & GSME-74L f907PdEFCF�vfF=71VG.' February 9, 1998 Old King's Highway 'His_oric District. Committee TiMe 2:00 PM Meeting to discuss the construction at 36 Sunset Lane, Barnstable QLaC� School Admin. Bld 230 South Street Ra0M: Hyannis� . SAB ROOMFLO . Date of Not�'Cs: February.5, 1998 ��' P EONS INTER=I EJ ARE ACMEEM THAT, W THF'EzAwrANY MAT ER TAKFV UP AT THE M E=37NG REMAINS UNFNtSH$]AT'THE'ry OF THE ME E'77NG, iT MAY EE PUT OFF TO A CONTINUED MMON OF THIS ME 7j NG WTR-JOUT FURTHE}S NMM By. Order of .Peter b. Freeman, Chairman`\ ' Car*of Sward/or$card Memb (Timw=p aff copies in Town C m*'s CMM-Leeve 1 capy watt Clerk-PA a - Keep a.Capy for your Racots]. 77) Ln L Cross EA1 _ Town of Barnstable - Planning Department Old King's Highway Historic District Committee y' o� 230 South Street, Hyannis, Massachusetts 02601 M (508) 790-6285 Fax (508) 790-6288 BAMUZ KAss. 16;q- �ArED MA'S a AGENDA FOR `**SPECIAL PUBLIC HEARING*** To all persons deemed interested or affected by the Town of Barnstable's OLD KING'S HIGHWAY HISTORIC 'DISTRICT under Section 9 of Chapter 470, Acts of 1973. You are hereby notified that a hearing will be held on the following applications for Certificate of Appropriateness and other types of applications or requests, if so named. The hearing will be held in the School Administration Conference Room, 230 South Street, Hyannis, MA., at 2:00 P. M. on Monday, February 9, 1998. Agenda items Discussion of the construction at 36 Sunset Lane, Assessor's Map# 301, Parcel# 036, Barnstable- ALL APPLICATIONS AND PLANS MAY BE REVIEWED AT THE OLD KINGS HIGHWAY HISTORIC DISTRICT OFFICE, TOWN OF BARNSTABLE PLANNING DEPARTMENT, 230 SOUTH STREET, HYANNIS, MA. Peter L. Freeman, Chairman Old King's Highway Historic District Tr;V'N CLERK T Town of Barnstable - Planning DWfrnen le- Old King's Highway Historic District Committee �9 230 South Street, Hyannis, Massaditsi& lfid 4 sARxsrest.E. : (508) 790-6285 Fax (508) 790-6288 ass. 9� i639. CFO MA'S�' Decision Special Public Meeting of February 9, 1998 Re: In the application of Richard & Joan Rudders, 36 Sunset Lane, Assessor's Map# 301, Parcel#036, Barnstable- Discussion of the construction at 36 Sunset Lane The meeting was held in the School Administration Conference Room, 230 South Street, Hyannis, MA., at 2:00 P. M. on Monday, February 9, 1998. == Committee members present at this meeting were Edward Molans, Stanley Alger, and -- the Chairman Peter Freeman. Also sitting in on the meeting were Joseph and Edith Dugas and Lois Farmer, Esquire. At a duly held meeting Old King's Highway Historic District Committee at which a quorum was present on February 9, 1998, the following two motions were made Stanley Alger and seconded by Ed Molans and approved unanimously to: 1) To request the Building Commissioner to immediately issue a Cease and Desist Order to stop construction at 36 Sunset Lane Barnstable, MA, because the "as built" location of the house is 4' to 4.5' closer to the road than was approved by Old King's Highway Historic District; 2) To request that the Building Commissioner look into a.) whether the as built house is located closer to the Southeast lot line than was approved by Old King's Highway Historic District and b.) whether the elevation of the house as built is higher than the approved plans. � •� „�.. JAN - 9 "a Peter L. Freeman, Chairman Date Rudder-EA=98 230 South Street, Hyannis, Massachusetts 02601 sARNSTA (608) 790-6286 Fax (608) 790-6288 KAss. RFD MPS� To: Ralph Crossen, Building Commissioner From: Old King's Highway Historic District Committee Date: February 9, 1998 Re: 36 Sunset Lane, Samstable At a duly held meeting of the Old King's Highway Historic District Committee at which a quorum was present on February 9, 1998, the following two motions were approved: 1) To request the Building Commissioner to immediately issue a Cease and Desist Order to stop construction at 36 Sunset Lane Barnstable, MA, because the "as built" location of the house is 4' to 4.5' closer to the road than was approved by Old King's Highway Historic District, 2) To request that the Building Commissioner look into a.) whether the as built house is located closer to the Southeast lot line than was approved by Old King's Highway Historic District and b.) whether the elevation of the house as built is higher than the approved plans. As to the house location issue, Stan Alger's review of the plot plans submitted by Sweetser Engineering and Eagle Survey, and of the site plan approved by Old King's Highway Historic District Committee shows the following: The Old King's Highway Historic District Committee approved site plan shows that the new house was to be 35' back from the layout of Sunset Lane. The Sweetser plan shows that the house is built 30.6' back from said layout. The Eagle plat; shows that the house is built 31' back from said layout. We appreciate your assistance in this matter. Stance Iger Peter L. Freeman Edward Molans copyi I COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS. SUPERIOR COURT DOCKET NO. RICHARD RUDDERS and ) JOAN RUDDERS, ) Plaintiffs ) VS. ) BUILDING COMMISSIONER FOR THE ) TOWN OF BARNSTABLE and THE ) BARNSTABLE OLD KING'S HIGHWAY ) COMMITTEE, ) Defendants ) PLAINTIFFS ' MOTION FOR ORDER OF MANDAMUS AND PRELIMINARY INJUNCTION i Now come the plaintiffs, Richard Rudders and Joan Rudders, and request that this Court issue an order of mandamus requiring the defendant, Building Commissioner for the Town of Barnstable, to revoke a Stop Work Order issued on February 10, 1998 and to authorize construction of the project pursuant to the Building Permit. The plaintiffs also request a preliminary injunction enjoining the defendant, Old King' s Highway (hereinafter i referred to as "OKH" ) , their agents, servants and employees from i taking any further action to prevent the plaintiffs from I construction of their home located at 36 Sunset Lane, I Barnstable, Massachusetts. As grounds therefor, the plaintiff asserts the following as set forth in the Affidavit of Richard Rudders, attached hereto as Exhibit "1" and in the Complaint i filed herewith: QUIRK AND 1. The Building Commissioner. previously expressed his CHAMBERLAIN, P.C. satisfaction with the project' s compliance with zoning "ORNEYS AND COUNSELLORS AT LAW 99 WILLOW STREET POST OFFICE BOX AO -OUTHPORT.MA 02675-0040 I 508 362 6262 'ACS:MI'.E S08,3S2-6060 -l- and with the intent of the OKH act. The action of the OKH in ordering the Building Commissioner to issue a Cease and Desist Order based on location is beyond the jurisdiction of OKH and constitutes an unreasonable interference with the performance of the Building Inspector' s duties. 2 . The actions of OKH in taking punitive action against the plaintiffs without proper notice is unlawful and, as such, the action taken at such meeting should be declared a nullity. 3. The Stop Work Order of February 10, 1998 was based not on the basis of non-compliance with zoning requirements, but rather on account of improper interference with the Building Commissioner' s duties by the defendant, OKH. 4 . The plaintiffs are entitled to. an honest uninfluenced opinion by the Building Commissioner with respect to enforcement issues and decisions. The Building Commissioner previously expressed his opinion that the project complied with zoning and the intent of the OKH act. In further support, the plaintiffs assert that the construction complies in all respects with the Town of Barnstable Zoning Ordinances and By-Laws and that, but for the action taken by the defendant, OKH, the Building Commissioner would not have issued the Stop Work Order. The plaintiffs also i assert that any deviation from the proposed foundation location i and the as built was done with approval of and in reliance on the Building Department' s authority. Further, the plaintiffs 1 assert that irreparable harm will result in that they have and I I will continue to be deprived of the use and enjoyment of their property by the actions of the defendants. QUIRK AND CHAMBERLAIN, P.C. I ".ORNETS ANO ZOUNSELLORS I AT LAW 99 WILLOW STREET POST OFFICE BON 40 '.PMOUTHPORT MA 02675-0040 508/362 E 262 =ACSJM;LE 5081362-6060 -3- i WHEREFORE, the plaintiffs request an order of mandamus requiring the following: 1 . That a Short Order of Notice issue on the plaintiffs ' i request for a preliminary injunction; 2 . That a preliminary injunction issue enjoining the defendant, OKH, their agents, servants and employees from taking ' any further action to prevent the plaintiffs from construction of their home located at 36 Sunset Lane, Barnstable, Massachusetts; 3. That a permanent injunction issue as set forth in Request #2 above; and 4 . That the Court order the defendant, Building Commissioner, revoke the Stop Work Order issued on February 10, 1998 and to authorize construction of the project pursuant to the Building Permit. By his attorneys, Robert C. Chamberlain, Esq. , BBO #080368 Thomas J. Perrino, Esq. , BBO #555297 QUIRK AND CHAMBERLAIN, P.C. 99 Willow Street, P.O. Box 40 Yarmouthport, MA 02675-0040 (508) 362-6262 QUIRK AND CHAMBERLAIN, P.C. j DATED: February 19 1998 "'ORNEY5 AND COUNSELLORS AT LAW 99 WILLOW STREET POST OFFICE BOX 40 --MOUTHPORT.MA 02675-0040 608/362 6262 i ACSIMILE `_C&362 4:60 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS. SUPERIOR COURT DOCKET NO. i I i RICHARD RUDDERS and ) JOAN RUDDERS, ) Plaintiffs ) VS. ) ) BUILDING COMMISSIONER FOR THE ) TOWN OF BARNSTABLE and THE ) BARNSTABLE OLD KING'S HIGHWAY ) COMMITTEE, ) Defendants ) AFFIDAVIT OF RICHARD RUDDERS I, Richard Rudders, on my oath depose and say as follows: 1. My name is Richard Rudders and along with my wife, Joan, own the property located at 36 Sunset Lane, Barnstable, Massachusetts. I am a professor of medicine at Boston University School of Medicine. My wife and I and our children use the Barnstable home throughout the entire year. 2 . We have owned this property since the late 1970 ' s and have used it as a second home since that time. I am planning on retiring later this year and moving to my home in Barnstable on a permanent basis. 3. The home at 36 Sunset Lane was a single story two bedroom house. In order to make it more comfortable for year round living I proposed to demolish the existing structure and replace it with a larger two story single family dwelling. I have refinanced my current primary residence to pay for this QUIRK AND project. CHAMBERLAIN, P.C. .TTORNEYE AND COUNSELLORS AT L- 99 WILLOW STREET POST OFFICE BOX AO ..RMOUTHPORT .wA 02675-OO40 508,362 6262 FACSIMILE 5C8.362 6060 f i -2- 4 . On October 8, 1997 on the night of the initial Old i King' s Highway hearing on my Application for a Certificate of I Appropriateness:, see Exhibit "A" , Application for Certificate of i Appropriateness with approval noted, my neighbor to the south, Joseph Dugas, entered my home without invitation or warning and ; I issued a threat stating that "unless you build this house the way I want you to, you will never build it. What do you think about that?" i 5. At the Old King' s Highway meeting later that night, Mr Dugas expressed concern over his view of the water from his i bedroom window. A discussion ensued over the location of the i new house in relation to its distance from the road and from the i original foundation. Mr. Dugas sought to have the house moved i back from the old foundation a distance of approximately 9-10 j feet, but agreed that 3-4 feet might be all that was required to preserve his view. Mr. Dugas and I agreed to move the I foundation back approximately 3-4 feet from the original i foundation. Due to a measurement error made by me, the plot I plan submitted to Old King' s Highway showed the proposed I foundation of the new house as being 35 feet back from the property line rather than 26 feet. The mistake occurred because i I had measured the distance from the edge of pavement which I later learned is not the correct property line. I 6 . The location of the new foundation, as built, is set QUIRK AND-HAM.B ERLAIN. P.C. PP Y back approximately 30.6 feet from the front property line. The "'.RNEYS:NO COU\SELLORS r Law 99 WILLOW STREET old foundation was located approximately 26.2 feet from the � POST O—CE SOX dO =WOUTHPORT N4 C_E75.0040 50811E2 E292 _...-LE -7 -3- front property line. See Exhibit "B" , Revised Plot Plan. Therefore, the new foundation is approximately 4 .4 feet further back than the old foundation and is what was agreed to at the Old King' s Highway meeting. 7 . At the hearing, Mr. Dugas expressed his concern over his view of the water from his second story window. The old foundation was 2 feet behind Mr. Dugas ' home. The location of the new foundation is 7 feet further back from the road than Mr. Dugas ' home. See Exhibit "C" , Eagle Survey, Inc. Plot Plan. The location of the new foundation does not in any way interfere with the view from the Dugas home. 8. After the Old King' s Highway meeting of October 8, i 1997, I saw the plot plan for the first time and realized the mistake I had made in the measurement of the property foundation. I communicated with my contractor regarding the location of the proposed foundation and instructed him to contact the Building Department and submit a revised plan i i reflecting the 3-4 foot setback agreed to at the Old King' s i i Highway meeting Prior to demolition of my original home, Mr. Hamlyn checked with the Building Department to determine whether a difference of approximately 4 feet on the plan and proposed what was proposed at the Old King' s Highway meeting required submission of a revised plan. We were told a revision was not required because the final location would appear on the as built QUIRK AND.HAMBERLAIN. P.C. and as long as zoning rein ulations were complied with a 4 foot g 'RNEIS AND COUNSELLORS AT LAW ?9 WILLOW STREET variation was not an issue. Because of that, a revised plan was ?OST OFFICE BOX 40 o"OU7MFORT NA 026750040 6262 I - i -4- i not submitted. In reliance on this information, we proceeded with the demolition of my old home and the construction of my new home. 9. At a meeting of Old King' s Highway held on December i 17 , 1997 a discussion of my project occurred at the insistence ' of Mr. Dugas. I was not q provided any notice of this meeting. I i later learned that as a result of this meeting, Old King' s i Highway decided to instruct the Building Commissioner to issue a i Stop Work Order based on Mr. Dugas ' assertions regarding the i construction of the foundation. See Exhibit "D" , Memorandum dated December 23, 1997 . Again, this was done without notice to me and in spite of the Building Department ' s insistence that there were no zoning violations present. 10. A further hearing of Old King's Highway was held on January 7, 1998 at which I was present along with my attorney. At this hearing the incorrect measurement made by me was explained to the Old King' s Highway. It was explained and demonstrated, by way of numerous photographs, that the location of the new foundation does not obstruct or interfere with the view from the Dugas property thereby fulfilling the agreement made at the original Old King' s Highway meeting. 11. At the end of a lengthy discussion it was agreed upon by all parties that a plot plan would be submitted to the Building Commissioner showing the location of the old foundation QUIRK AND and the location of the new foundation. iAMBERLAIN� P.C. �� �� See Exhibit E , ,-4EYS AND COUNSELLORS AT LAW 39 WILLOW STREET Revised Plot Plan showing old foundation and new foundation. -OST OFFICE BOX 00 .'J TM PO Ri MA 0,6750040 508/36 2-E 2 c 2 I I -5- It was understood that if the Building Commissioner was satisfied as to the location of the new foundation, then Old King' s Highway and Mr. Dugas would likewise be satisfied and raise no further objection. 12 . The Building Commissioner reviewed the matter and determined that "both the height and location are substantially in conformance with zoning and the intent of the Old Ring' s Highway act. I believe the Stop Work Order should be lifted. I intend on doing that forthwith. " See Exhibit "F" , letter dated January 21, 1998 from Ralph Crossen to Peter Freeman. 13. The Old King' s Highway reversed their position and attempted to and did conduct two (2 ) additional meetings regarding this project. Due to insufficient notice, scheduling conflicts and the time of day, neither myself nor my attorney could attend. See Exhibit "G" , letter dated February 4, 1998 . 14 . On Monday, February 9 1998 at 2 :00 y p.m. , Old King' s Highway held a meeting to discuss my project. See Exhibit "H" , I Notice of Meeting. Significantly, Mr. Dugas and his attorney were present at this meeting. Although the matter was scheduled ostensibly for discussion only, the Old Ring' s Highway took punitive action against me by instructing the Building i Commissioner to issue a Cease and Desist Order based on issues relating to the location of the new foundation. See Exhibit i i "I" , Decision of OKH meeting of February 9, 1998. QUIRK AND =HAMBERLAIN. P.C. "�RNUS AND COUNSELLORS AT'-A. 99'WILLOW STREET .OST OFFICE BOX AO -= 1..ORT MA 026750040 E06.3E2 E262 SI'AILE 6.S3E2-6060 i I I -6- i 15. The home is now only partly constructed and is open to weather and unsecured. The second story is only partially constructed. This results in a potentially unsafe and dangerous condition and could result in a collapse of the constructed. portion of the second story. I 16 . Based on information and belief, there are other homes I constructed within the Old Ring' s Highway district which have equal or far greater deviations from the proposed approved plans I with regard to location. For this. reason I believe that I am i being treated differently than other applicants and have been subject to action by the Old Ring' s Highway which is not only i biased and discriminatory, but is beyond the scope of their authority. 17 . Upon information and belief the most recent Stop Work ' Order is based solely upon the request of the Old Ring' s Highway and is not as a result of any violation of any zoning ordinance or by-law of the Town of Barnstable. The justification is that the new foundation is 4 .4 feet closer to the front property line than what was approved by Old Ring' s Highway. 18. The actions of Old Ring' s Highway have caused and will continue to cause irreparable harm in that I have been deprived of the use and enjoyment of my property. This home is scheduled to be my permanent residence and because the completion schedule has been altered, I will not be able to retire and use my QUIRK AND CHAMBERLAIN, P.C. property. .7TORNEYS ANO COUNSELLORS AT LAW 99 WILLOW STREET POST OFFICE BOX 40 .�MOUTHPORT -02675.0040 508,362-6262 =ACS;M!LE =:.9,362.6060 I Richard Rudders, being duly sworn, says that he has read the foregoing Affidavit and knows the contents thereof, and that the same is true to the best of his knowledge except as to those matters therein stated on information and belief, and as to those matters he believes them to he true. RICHARD RUDDERS COMMONWEALTH OF MASSACHUSETTS SS. 13February ' ? , 1998 Then personally appeared the above-named, Richard Rudders, who acknowledged the foregoing document to be his free act and deed, before me. NOTARY PORLIC my Commission Expires: o "?od QUIRK AND CHAMBERLAIN. P.C. ntuW.Cr6 AIW caur;Ciw■: •r uw MWI LOW 4 ROD' M!'or-cc i@.O - .weW:1Kf11T.MA awtAX3.t Ov :As2 /KSWLG]OlaQldi TOTAL P.02 Old Kings Highway Regional Historic District e • �� Commltte in the Town of Barnstable for a CERTIFICATE OF APPROPRIATENESS :f)plication is hereby macs, in triplicate, for the issuance of a•Certificate of Appropriateness under Section 6 of Chapter 4-- A cs and Resolves of Massachusetts, 1973, for proposed work as described below and on plans. drawings or photograo;. iccr mpanying this application for: .CHECK CATEGORIES THAT APPLY: 1. E*Xrerior Building Construction: 2 New Building ❑ Addition ❑ Alteration Indicate type of building: FC- House ❑ Garage ❑ Commercial ❑ Other 2. Exterior Painting: ❑ 3. Signs or Billboards: ❑ New sign ❑ Existing sign ❑ Repainting existing sign 4. Structure: ❑ Fence ❑ Wall ❑ Flagpole ❑ Other (Please read other side for explanation and requirements). TYPE On PRINT LEGIBLY DATE ADD' ESS OF PROPOSED WORK � SC//(J S� / G Al ASSESSORS MAP NO. 4 OW".1ER /Z LZZA4- 7 iL .7QA ✓ n-C?,Qa,,£/t,5 ASSESSORS LOT NO. HC'v1E AODRESS ZY 1,1_141_j4A ea J►-/7 e_r<1 r tr TEL. NO. 7 ' 3 FULL NAMES AND ADDRESSES OF AEUTTING OWNERS. Include name of adjacent property owners across any public street or way. (Attach additional sheet if necessary). S elz: A,0 V riowA 5 l i AGENT OR CONTRACTOR 2:L[ S S I4 0 7G y h. 777 TEL. NO. D fL - ADDRESS � /L%It,A-�4 SD. +CL 'AA,, � DETAILED DESCRIPTION OF PROPOSED WORK: Give all particulars of work to be done (see No. 8, other side), including materials to be used, if specifications do not accompany plans. In the case of signs• give locations of existing signs and proposed locations of new signs. (Attach additional sheet, if necessar•;). !.c/ -OM2 5 rZ/L S riz c f; Signed er•co ractor•Ayent r �,ac xl. "ire use. 1 ' •dlby'ii• tr atc — Certificate !s hercb CA— Date . TC1.�, ; ' �• �Lc ^. _ .'P.n; - :T if r✓emtir Mtn 'S ac.-rovec, IS Suc!P_Ct to t~Q !0 C'a`i __:7°3i 7er: - S ' Town of Barnstable Old King's Highway Historic District Committee SPEC SHEET FOUNDATION ?' /,C O f' G Div 4 ;-/1 4d iti/,� SIDING TYPE f'/z C,,i 411 r CHIMNEY TYPE nll_/ t� /L COLOR !> ROOF MATERIAL, COLOR Q 2/ w 00 D PITCH ).. r /t WINDOW /3 y/ �ti/�ia'nSf7itJ SIZE S�/L r2G,47LS TRIM COLOR 134<- DOORS f/Loivi /7 -)0A- J- � COLOR SHUTTERS �,t/ U COLOR GUTTERS L,,L, j riz A-G u i/t/ DECK ti 0 GARAGE DOORS /1-,+ S r'lJ fJ/}ivr L COLOR ill, SIGNS COLORS FENCE COLOR NOTES: Fill out completely, including measurements and materials/colors to be used. Three copies of this form are required !or submittal of an application. along with three copies each of the plot plan. landscape plan and elevation plans, when applicable. Site plan should show all structures on the :oc to scale. 1 1pp OO ! W 1-1 21, ?� h Q ^ O DRIVE _?00' Q000 _ J� O n $ ?'9 00, - N � r loo OQ i l PROPOSED PLOT' �. --�A / � ���of S1\4 BARNSTABLE, MASS. SPIN L -?, ; 36 . SUNSET LANE `V it DATE SEPT. 19, 19971 SCALE 1" = 20' .31341 . JOB 3972-00 CLIENT HAMLYN SEETSER ENGINEERING 235 GREAT WESTERN ROAD yet/� P.O. BOX 713 SOUTH DENNIS, MASS. 398-3922 02660 Fr1X 398-3;;'.; J®lL� /- li soAv I3 13 yv �C14 G /4y/Z-- i •'11 ' O) I' LOTS 141 & 143 10,000 S.F -6 r,, . Sz) ILI r " l i I , TO THE BEST CF MY INFORMATION, AS—BUILT" PLOT PLAN KNCWL.EDGE, AND BELIEF THE BARNSTABLE, MASS. FourvDarion �HOwN ON THE ''''� .+ LOTS 141 & 143, L. C. 17933 �...... RAN HAS BEEN LOCATED t E;- DATE DEC. 1 1997 SC _ GRCUND AS INDICATED JOB 3972-00 ALE 1 20 ' `� CLIENT HAMLYN__ SW�ETSER EN91NEE' ING DEC. 1, log ' 235 GREAT WESTERNWESTERNROAO �� , P.O. Box 71J 0A Lr pHCo) LAND SJR•VF.fr�QR SOLI DENNIS, MASS. L�4R-_392? 02660 r- HYD TAO sot T 04 ELEV /J,tl O + ELEVATION l I.D DEPICTED ON THIS a 0,4 PLAN REPRESENTS AN APPROXIMATE ,T L OCA T/ON OF THE NATURAL GROUND N ELEVATION BASED ON SPOT ELEVATIONS TAKEN B Y ELECTRONIC SURVEY METHODS. LOTS 1-4 / 4 l 4 3 7''4k s HBO0.S. 00 'E BENCH MARK USED: RM S ll.�o l 0000 S•F'• ELEVATION: 12.24 NGVD t.0 ,/.s /J.o+ t� P-1L 4 e DWELL I NG UNDER I I + CONS TRUCT/ON 8 •4r FA MR SHUMoFF T.O.F. 3,3 2.3 10.e2 1O.7 I 10.2e //.OT�..` /2.a //•t l0.S ��'~ 12.e lo.ll 10.e3' _ - AE1aroyF +2.s II.o'f' /,/ %.e'f` `, 93'�� /1.S� -- J1.•�,� ./'/0 ��� ..sue /p .T/ • 77: 1 0.7 . pp . /o• / /O• -{- /0. M *ArEa 0.54 -- • Io.l0 0.as ll.l . n lo.aa /O,a 10.5+ l o.0 10.02 l l / Q4,? 22•; ti #30 :o.s litT.O.F. 11.49 0.15 4` O ,nqi 24 L 0 TS 145 & 147 \ TOWN OF BARNSTABLE ZONING 9.8,+ /0000 S.F. Z ZONE RB lo.off' SETBACKS CO 0.24 a FRONT - 20 SIDE - lo' •.7t REAR - l 0- /p 00 . S ye,$)•3/ •� I0.01 PRoPc TO THE BEST OF MY PROFESSIONAL KNOWLEDGE. R TY L/NES SHOWN HEREON I�"'`""-`�••� - •- . . .COMPILEDWERE ROM n... ._ INFORMATION AND BELIEF THE DWELLING SHOWN PLANS OF -RECORDANDDO NOT AVAILABLE ! - .., j_ HEREON CONFORMS TO THE HORIZONTAL SETBACKS I li REPRESENT A j� OF THE ZONING BY-LAW FOR T N ACTUAL SURVEY HE RB DISTRICT. ON THE GROUND. F ' 4 INN I.. • i THE LOT SHOWN HEREON IS IN FLOOD HAZARD ZONE A3 (ELEV. THE DWELLINGS DEPICTED ON THIS �''�`�'� `' ' ' AS SHOWN ON MAP 250001 0001 D. DATED JuLY 2, I9�2. III PLAN WERE LOCATED ON THE OROUND� i �i , BY SURVEY ON JAN. 5. 1998 AND JAN. 27. 1998 AND EXIST A$ SHOWN PLOT PLAN A$ OF THE DATES OF LOCAT/ON. 4.tl IN THIS PLAN IS FOR PLOT PLAN ': ' "' BARNSTABLE. )IAA . PURPOSES ONLY AND NOT FOR .�' `'"' SCALE: I •. O ' JAN. 28. 1998 RECORDING. DEED DESCRIPTIONS. ESTABLISHING PROPERTY LINES OR FOR CONSTRUCTION PURPOSES. EAGLE SURVEYING , INC ' 023 Rout* �A THIS PLAN /S V0/0 /F NOT Yorrmuthpo►t. w. 02t73 (doe) 342-4132 .,STAMPED AND SIGNED IN RED. (308) �2-a333 j MDRAND To: Ralph Crosson Date: December .23, 1997 Building Commissioner By Facsimile: 790-6230 From: Peter L. Preeman, Chairman Barnstable OKR Committee Re: Sunset Lane, barubLoblc ilamlyn Conat•rilrtion, Dugas At the ORB meeting on December 17, 1997, Joseph Dugas brought to our attention what he believed to be two issues of noncompliance with the Certificate of Appropriateness previoun2y granted by the Committee for the house abutting his lot, now under construction by Hamiyn Construction. Issue 1: The building as proposed and approved was to be at the same finish grade as the house that was demolished on the site. It appears that the finished elevation is 4 ' higher. Issue 2: The foundation was built almost 4 ' closer to Si=set Lane than was shown on the approved site plan. In discussing the MaLLCt, Liam CZMMLetsao roualla.i fthnt Kr. Dugas had appeared at the hearing on the application, and the exact location of the structure was a concert he raised at the bearing. ne was cuuv1gL.,e3 about his viow of the vatnr, and the relationship Of the new structure to the surrounding buildings and the street. The Committee definitely felt that location was an issue, especially in au area like Cou=on Fields, where the lots are small •� and the houses are close together, and especially where a neighbor's view cat- be accommodated without detriment to the Applinar,t• These matters were reviC*►e:d on Deeembox 17, 1997, and the Committee. expressed the opinion, unanimously, that the construction of the house as described above, as to both issues, way in violation of the Certificate of Appropriateness. It was the opinion of the Committee that the ehangos constituted mere than minor changes, and that a stop work order should be issued by the Building Department. The location of the structure is material to this application, for the reasons stated above. However, I mast also emphasize that 1......t�,;as is alasara a eon,- egn7-af inn in n11r rpvj cv 2r9gerss. Our guidalines roauire that applicants submit on plot plan chowing. the exact location of a proposed building or structure and identifying existing relevant building= a"d zlru=tures. Tho cnncidaratiojj of TOTAL P.0.3 �9ett1 nqs is i (Section 1 ncluded in both the ose section of the Act and in the owors, t ' ns and duties section of Cho. Act (Section 10) . Section 10 also calls upon compare the proposed construction in relation tQhebui dingseand structures in the immediate surroundin s" . '�$ that a building's relation to Other gbu�,Idut is self-evident to vary, dependingon its q is the area will proposed location. Brownr Counsel to Old Xing-a Hi hwa R . District Commission, agrees with the view I have �egionai Al��ur�c Memorandum. Both he and I are expressed in this Otherwise would get an improper aged d eronsezned that holding inconsistent with the way that our HlsLvric District Act recedent th iz an traditivnal,ly been interpreted. = would point out that the OH& Guidelines a1zO provide. It shall be the dut Of the CO=ission to interpret the act . . _ ...Y and responsibility For all these reasons, our Caanmi Issue a stop work order on th ttee respectfully urges you to e property. The. right to apply to our Co owner would have the mmittee for a new Certificate of APPr�P='iat;e:less, requesting appruval for Lhe changes he has trade. °C" Chen e>own - 6y Famlmil.e: 790-6288 f TOTAL P.0-3 'v W 7 LOTS 141 & 148 10, 000 S.F. .t C/) , TO THE BEST CF MY INFORM ,�AS-F UILT„ PLOT PLAN KNCWLEDGE, AND BE A ION, BARNSTA,H AN FOUNDATION SH BELIEF Tl-(c�... ���, LG'Ts � MASS. PLAN HAS ° ON T>�r j�tF ::� 141 & 143, L. C. 17933 BEENLOCAE ., DATE DEC _1, j'997 SCA _ GROUND AS INDICATED 'i`•' �•_- JOB 3972—OD LE 1 -- 20 w r' 3t'=1 -�'� S1S , CUErJT HAMLYN 23s GRE� �1VGINRRRING DEC. 1'rlog f� , �'-. -�� P WESTERtJ ROAD DA ��- NKOF. LAND SU '.-.. OR SOLITHOOENtgjS MASS. 39ti--3922 0266 l • auuvsTi►et� • '�, !6 �,$ Department of Health Safety and Environmental Services Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissiont TO: Peter Freeman, Chairman, O. K. H. FROM: Ralph Crossen, Building Commissioner REGARDING. 36 Sunset Lane, Barnstable, MA DATE: January 21, 1998 I have reviewed the plot plan of December 1, 1997 and both the height and location are substantially in conformance with Zoning and the intent of the O.K.H.act I believe the stop work order should be lifted. I intend on doing that forthwith. g980121a c�ttozn�ys and�ounsozs at�'aur 99 WILLOW STREET JAMES H OUIRK,JR ROBERT C. CHAMBERLAIN POST OFFICE BOX 40 PAMELA B. MARSH YARMOUTHPORT. MASSACHUSETTS 02675.0040 BARNSTABLE OFr: _ THOMAS J. PERRINO 308/362.6262 ' POST OFFICE 30x 4 NASTASIA WELSH PER RING FACSIMILE 308/362-6060 BARNSTABLE. .MA c< 508/362.43 1 4 OF COUNSEL WILLIAM E. CROWELL,JR via Facsimile (508) 362-8281 February 4 , 1998 Peter L. Freeman, Chairman Old Ring' s Highway Historic District 230 South Street Hyannis, MA 02601 RE: OLD RING'S HIGHWAY MEETING FEB. 4, 1998 : DR. RICHARD RUDDERS =_ OUR FILE NO 903/8533 = Dear Mr. Freeman: - Please be advised that after returning from Boston, I received your message concerning Dr. Rudders and a Board meeting on February 4 . I attempted to contact you personally, but was unable to do so. I have commitments to two other matters on the 4th and, therefore, cannot be available to attend the Old Ring' s Highway meeting. I believe that we have complied with the intent of the meeting of January 7, 1998, where Dr. Rudders and I appeared to respond to the actions following the initial approval. The matter did go back to the Building Commissioner as you know. He reviewed the information and made the determination that the project was in compliance with zoning and the Old Ring' s Highway concerns. Attached please find the Building Commissioner' s file memo. Since being before your committee, Mr. Duga-S has appealed the Building Commissioner' s decision relative to a myriad of issues raised by his counsel. He has also successfully obtained a cease and desist order for a claim relative to the flood plain. This is now the third cease and desist order that Dr. Rudders and his wife have been forced to address. Apparently the statement made to Dr. Rudders at his house prior to the Old Ring' s Highway meeting that "If you don 't build this house the way I want it you will never build it" , continues to be the agenda being raised by Mr. Dugas. My client has suffered substantial emotional and financial impact from the many proceedings he has been required to address. I c. Peter L. Freeman, Chairman February 4 , 1998 Page Two If I can provide more specific information to you and/or the Board, I will be glad to do so. Unfortunately, I am not available for your meeting this evening. I If, as a result of this correspondence you have any questions, please do not hesitate to contact me regarding same. Very truly yours, QUIRK AND CHAMB N, P.C. ame 1H. Quirk, Jr. , Esq. JHQ/mrg Enclos re cc: D Richard Rudders TOWN OF EMMUSTAIM NCTICS flF 1/i -s N�DFTl7W1U OL-�AATM�i'rAND ALL TGWN 8OARIIS As.Requimdby Cjap r 3Q,M.G.L /V,4N1FDFDL�AF�Tii9FN7: 8l].4RD�AG'aJ�flUfI� �N aM OF&=-I NG: & 6E.-VE7QL Pup;Qd F 91C Vf�7NG., February 9. 1998 Old King's Highway Historic District2�- 36 � 2:00 PM Meeting to discuss the construction Sunset Lane, BarnstableFur",- School Admin. Bld 230 South Street • Rt7DM: Hyannis• ' ' . . SAB BOOM . FLCM- S 1 2 i3alM of NodCW February 5, 1998 PEPSIINS 1NTERE;Ft7'AREACMEM THAT. IN 7HF.L=JEVTANY MAMR TAKEsU UP AT THE Me 3tNG AEMNS UNSMSiED ATTHEM IIF 7 HE M�'MM 1T MAY HE PUT Oar?a A CCNTT UED QF?HLS MEE17NM VVMjM r F LTMiER NC= By. Order of .Peter b. Freeman, Chairman Chu*of Swardlar$ward Memb [77m8-0=M;I aff =Pies in Town Csf*'s QTM-Lom 1 campy watt CIO*.- a�- Keep a.Copy far your Resards]. Ln cc y �'ross Town of Barnstable - Planning Department T Old King's Highway Historic District Committee �, o,► 230 South Street, Hyannis, Massachusetts 02601 swxxsrABLE. s (508) 790-6285 Fax (508) 790-6288 MASS. 9� 1639. ArfO MP'�A AGENDA FOR ***SPECIAL PUBLIC HEARING*" To all persons deemed interested or affected by the Town of Barnstable's OLD KING'S HIGHWAY HISTORIC DISTRICT under Section 9 of Chapter 470, Acts of 1973. You are hereby notified that a hearing will be held on the following applications for Certificate of Appropriateness and other types of applications or requests, if so named. The hearing will be held in the School Administration Conference Room, 230 South Street, Hyannis, MA., at 2:00 F. M. on Monday, February 9, 1998. Agenda items Discussion of the construction at 36 Sunset Lane, Assessor's Map# 301, Parcel# 036, Barnstable - ALL APPLICATIONS AND PLANS MAY BE REVIEWED AT THE OLD KING'S HIGHWAY HISTORIC DISTRICT OFFICE, TOWS" OF BARNSTABLE PLANNING DEPARTMENT, 230 SOUTH STREET, HYANNIS, MA. Peter L. Freeman, Chairman Old King's Highway Historic District Town of Barnstable - Planning D "Gen J Old King's Highway Historic District Committee 230 South Street, Hyannis, MassadUsM d$6V ;29 s . KASS : (508) 790-6285 Fax (508) 790-6288 �ss Decision Special Public Meeting of February 9, 1998 Re: In the application of Richard & Joan Rudders, 36 Sunset Lane, Assessor's Map# 301, Parcel#036, Barnstable - Discussion of the construction at 36 Sunset Lane The meeting was held in the School Administration Conference Room, 230 South Street, Hyannis, MA., at 2:00 P. M. on Monday, February 9, 1998. Committee members present at this meeting were Edward Molans, Stanley Alger, and the Chairman Peter Freeman. Also sitting in on the meeting were Joseph and Edith Dugas and Lois Farmer, Esquire. At a duly held meeting Old King's Highway Historic District Committee at which a quorum was present on February 9, 1998, the following two motions were made Stanley Alger and seconded by Ed Molans and approved unanimously to: 1) To request the Building Commissioner to immediately issue a Cease and Desist Order to stop construction at 36 Sunset Lane Barnstable, MA, because the "as built" location of the house is 4' to 4.5' closer to the road than was approved by Old King's Hiahwav Historic District; 2) To request that the Building Commissioner look into a.) whether the as built house is located closer to the Southeast lot line than was approved by Old King's Highway Historic District and b.) whether the elevation of the house as built is higher than the approved plans. JAN 9 1998 Peter L. Freeman, Chairman Date Rudder-E.docN wju zioutn btreet, Hyannis, Massachusetts 02601 ` = z►srrsr�et.� : (608) 790-6286 Fax (608) 790-6288 Huss. To: Ralph Crossen, Building Commissioner ► From: Old King's Highway Historic District Committee Date: February 9, 1998 Re: 36 Sunset Lane, Barnstable At a duly held meeting of the Old King's Highway Historic District Committee at which a quorum was present on February 9, 1998, the following two motions were approved: 1) To request the Building Commissioner to immediately issue a Cease and Desist Order to stop construction at 36 Sunset Lane Barnstable, MA, because the was built" location of the house is 4' to 4.5' closer to the road than was approved by Old King's Highway Historic District; 2) To request that the Building Commissioner look into a.) whether the as built house is located closer to the Southeast lot line than was approved by Old King's Highway Historic District and b.) whether the elevation of the house as built is higher than the approved plans. As to the house location issue, Stan Alger's review of the plot plans submitted by Sweetser Engineering and Eagle Survey, and of the site plan approved by Old King's Highway Historic District Committee shows the following: The Old King's Highway Historic District Committee approved site plan shows that the new house was to be 35' back from the layout of Sunset Lane. The Sweetser plan shows that the house is built 30.6' back from said layout. The Eagle plan MrVs that the house is built 31' back from said layout. We appreciate your assistance in this matter. Stance ger Peter L. Freeman CL. Edward Molans use s =� L,-CIyVI&,_.ACTION COVER SHEET SUPERIOR COURT DEPARTMENT nn P 7� BARNSTABLE Division ,.y PU: •TIFFS) DEFENDANTS) RICHARD RUDDERS AND JOAN RUDDERS gBUILDING COMMISSIONER FOR. THE TOWN OF HMAY COMMARTEF BARNSTABLE OLD KING'S ATTORNEY(S)FIRM NAME. ADDRESS AND TEL.) 5 08-3 62-62 62 ATTORNEY(S)(if known) Robert C. Chamberlain, Esq., BBO #080368 Thomas J. Perrino, Esq., BBO #555297 QUIRK AND CHAMBERLAIN, P.C. 39 Willow Street, P.O. Box 40, Board of Bar Overseers # (Required) Yarmouthport, MA 02675 Place an ® in one box only: ORIGIN CODE AND TRACK DESIGNATION Fi1. F01 Original Complaint ❑ 2. F02 Removal to Sup. Ct. c 231, s. 104 (F) ❑ 4. F04 District Ct. Appeal c231, s. 97 (X) ❑ 3. F03 Retransfer to Sup. Ct. c231, s. 102C (X) ❑ 5. F05 Reactivated after Rescript; Relief from judgment/order (Mass. R Civ. P. 60 (X) ❑ 6. E10 Summary process appeal (X) TYPE OF ACTION AND TRACK DESIGNATION (See Reverse Side) kD13 O. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE? Declaratory Judgment A) ❑ Yes fr7 No SE GIVE A CONCISE STATEMENT OF THE FACTS: (Required in ALL Types of Actions) n for an order of mandamus requiring the defendant, Building Commissioner to remove a Stop Work Order and for a preliminary injunction. The Building Commissioner issued a Stop Work Order at the direction of the defendant, Old King's Highway Committee, despite the project's compliance with Town of Barnstable Zoning Ordinances and By-Laws. The action of the defendant, Old King's Highway Committee, is beyond the scope of their authority. 2. IN A CONTRACT ACTION (CODE A) OR A TORT ACTION (CODE B) STATE, WITH PARTICULARITY, MONEY DAMAGES WHICH WOULD WARRANT A REASONABLE LIKELIHOOD THAT RECOVERY WOULD EXCEED $25,000: 3. PLEASE IDENTIFY, BY CASE NUMBER, .NAME AND DIVISION, ANY RELATED ACTION PENDING IN THE SUPERIOR COURT DEPARTMENT. SIGNATURE OF ATTORNEY OF RECORD OR PLAINTIFF DATE DISPOSITION R ECEIVED A. Judgment Entered B. No Judgment Entered ❑ 1. Before jury trial or non-jury hearing ❑ 6. Transferred to District BY: i. ❑ 2. During jury trial or non-jury hearingI Court under G.L. c.231, 113. After jury verdict s.102C. ENTERED4. After court finding Disposition Date 5. After post trial motion 'AJ 6-MIC 005-6/91 O� i 1 C� v 1 -� 'i G . .._-- - �� °FINE The Town of Barnstable + •nxrrsr�ar.$. • '� Department of Health Safety and Environmental Services 'OrEor�'t�' Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-90-6230 Building Commissioner DATE: March 4, 1998 TO: Ruth I Weil,Asst.Town Attorney FROM: Ralph Crossen,Building Commissioner A)4-� RE: Response to Rudders' Complaint-File Reference#98-0027 Following please find my paragraph by paragraph response to the above referenced complaint as per your request of February 26, 1998 1. Agreed 2. Agreed 3. Agreed 4. Agreed 5. Agreed 6. Agreed 7. I have no knowledge of this. 8. Apparently so. However,I have no knowledge of an agreement between Dugas& Rudder. 9. Agreed 10. Agreed RUTH J. WEIL,ASST.TOWN ATTORNEY MARCH 4, 1998 PAGE 2 11. "The plaintiff communicated with the contractor regarding the location of the proposed foundation and instructed him to contact the Building Department and submit a revised plan reflecting the 3-4 foot setback as agreed." Response: There was no information from Old Kings Highway which suggested that the location was critical. "Prior to demolition of the plaintiffs' original home,the contractor checked with the Building Department to determine whether a difference of approximately 4 feet on the proposed plan and what was proposed at the Old King's Highway meeting required submission of a revised plan." Response: I have no recollection of this discussion with the builder. "The plaintiffs learned that a revision was not required because the final location would appear on the as built and as long as zoning regulations were complied with a 4 foot variation was not an issue." Response: This is always done this way. "Because of that,a revised plan was not submitted. In reliance on this information,the plaintiffs proceeded with the demolition of the old home and construction of the new home." Response: I have no knowledge of what information the plaintiff relied upon. 12. Agreed 13. Not asking my opinion. 14. I have no knowledge of the plaintiff getting notice. Yes as to the"Stop Work Order". 15. Agreed 16. Agreed 17. Agreed 18. 1 have no knowledge of this. 19. 1 have no knowledge of this. RUTH J.WEIL,ASST.TOWN ATTORNEY MARCH 4, 1998 PAGE 3 20. "Upon information a belief there was no legal notice of this hearing by publication or otherwise." Response: I am unable to comment on this sentence. "Additionally,based on the understood agreement reached at the January meeting and the Building Commissioner's removal of the Stop Work Order,further action by OKH was not contemplated and constitutes interference with the Building Commissioner's enforcement authority. In essence,the defendant,OKH,was not satisfied with the Building Commissioner's determination,although,it was understood that the defendant, OKH,would abide by the Building Commissioner's determinations." Response: I am unsure of OKH's reasons. 21. I have no knowledge of this. 22. Agreed 23. Agreed 24. Agreed 25. I am unable to draw a conclusion. 26. 27. "The Building Commissioner previously expressed his satisfaction with the project's compliance with zoning and with the intent of the OKH act." Response: Agreed "The action of the OKH in ordering the Building commissioner to issue a Cease and Desist Order based on location is beyond the jurisdiction of OKH and constitutes an unreasonable interference with the performance of the Building Inspector's duties." Response: This draws a conclusion and as such,does not require an answer. 28. Unknown . 29. Based upon a written OKH request signed by all members present. 30. "The plaintiffs are entitled to an honest uninfluenced opinion by the Building Commissioner with respect to enforcement issues and decisions." Response: Agreed "The Building Commissioner previously expressed his opinion that the project complied with zoning and the intent of the OKH act"... Response: Agreed RUTH J.WEIL,ASST.TOWN ATTORNEY MARCH 4, 1998 PAGE 4 30. (Cont.) ..."and the defendant,OKH,has interfered with that determination all to the plaintiffs' detriment and has and will continue to sustain damage by the defendants' actions." Response: The OKH action requesting me to stop work on the site is based upon OKH's vote. An action they believe they have the power to do. 31. 32. Unknown 33. Unknown 34. "Further,based upon the January 7, 1998 meeting it was understood that if the Building Commissioner was satisfied then no further action would be taken by OKH." Response: Agreed "The actions of the defendant,OKH,and its Chairman,Attorney Freeman,are unlawful and beyond the scope of authority granted by statute to the defendant,OKH." Response: Unknown 35. Agreed- 1st sentence. 36. No comment. 37. Agreed 38. Unknown Rudders.doc