HomeMy WebLinkAbout4601 59 Parkwood Rd Barry v. Morreale Motion to Quash Deposition 07.01.16 •
BLATMAN, BOBROWSKI, MEAD & TALERMAN, LLC
ATTORNEYS AT LAW
Concord Office
730 MAIN STREET, SUITE 2B 9 DAMONMILL SQUARE,SUITE 4A4
MILLIS,MA 02054 cPHONE 9,MA 01742
PHONE 978.371.2226
PHONE 508.376.8400 FAX 978.371.2296
MICHAEL J.KENNEFICK FAX 508.376.8440
Michael@bbmatlaw.com Ne30 GREEN
Office
GREEN STREET
NEWBURYPORT,MA 01950
PHONE 978.463.7700
FAX 978.463.7747
July 1, 2016
Peter F. Harrington, Esquire
Harrington &Harrington
505 Waltham Street
West Newton, MA 02645
David S. Reid, Esquire
Stone& Reid
1292 Route 28
South Yarmouth, MA 02664
RE: Barry v.Morreale, et al
C.A.No. 1659 CV 000242
Dear Attorneys Harington and Reid:
Enclosed please find the Defendant, Yarmouth Zoning Board of Appeals' Motion to
Quash Deposition Notice and For a Protective Order Precluding the Defendants From Deposing
Board Members, which we are serving upon you in accordance with Superior Court Rule 9A.
Kindly forward your oppositions to me, if any, within the tie prescribed by the Rule.
Sincerely,
Mic ael J. Kennefick
,...�.VED
cc: Board of Appeals I JUL 8 2016
YARMOUTH
BOARD OF APPEALS
COMMONWEALTH OF MASSACHUSETTS
TRIAL COURT OF THE COMMONWEALTH
BARNSTABLE, ss SUPERIOR COURT DEPT.
NO. 1572 CV 0326
)
RALPH F. BARRY, JR., Trustee )
)
Plaintiff )
)
vs. )
)
LAWRENCE MORREALE and )
ANGELA MORREALE, Trustees and )
STEVEN DEYOUNG, SEAN IGOE, )
BRYANT PALMER, GEORGE )
GARNICK and CHUCK HART )
)
Defendants )
)
DEFENDANT,YARMOUTH ZONING BOARD OF APPEALS' MOTION TO QUASH
DEPOSITION NOTICE AND FOR A PROTECTIVE ORDER PRECLUDING THE
DEFENDANT FROM DEPOSING BOARD MEMBERS
The defendant members of the Yarmouth Zoning Board of Appeals (hereinafter the
"Board" or the "ZBA") request an Order quashing a Deposition Notice served on one of its
members, Steven DeYoung, and also a Protective Order precluding the defendants, Lawrence
Morreale and Angela Morreale (the Morreales"), from deposing any other Board members. As
grounds for this Motion, and more fully explained below, the Board states that any deposition of
a Board member would only seek to elicit testimony that is wholly irrelevant in this matter.
Furthermore, compelling a Board member to appear for a deposition in this action would subject
them to annoyance, oppression and undue burden and expense.
The Board, following a hearing held on June 11, 2015, granted the Morreales a special
permit allowing them to construct an attached garage to a pre-existing non-conforming single
family home located at 59 Parkwood Road in South Yarmouth. The plaintiff, Ralph F. Barry, an
abutter to the Moreales' property, opposed the application and brought this appeal following the
Board's grant of the special permit.
The Morreales now seek to depose Steven DeYoung, a member of the Yarmouth Zoning
Board of Appeals. Mr.DeYoung,however,would be unable to provide any testimony whatsoever
that would be relevant to this appeal, or would even lead to the discovery of relevant, discoverable
information in this case. See Mass. R. Civ. P. 26(1).
G.L. c. 40A, § 17 provides for de novo review of a decision of a permit granting authority:
"On appeal to the Superior Court or Land Court, a judge determines the legal validity of a zoning
board decision on the facts found by him; he gives no evidentiary weight to the board's findings."
Roberts v. Bell Mobile Sys., Inc.,429 Mass.478, 485-486(1999) citing Josephs v. Bd. of Appeals
of Brookline, 362 Mass. 290, 295 (1972). A deposition of a board member can provide no
evidence that would be appropriate for consideration by this Court in this proceeding;because the
trial is de novo, the only appropriate witnesses at trial would be percipient witnesses, i.e. the same
people that would have addressed the Board at the time of the hearing. Mr. DeYoung can provide
no discoverable, personal knowledge in this case - he was merely a Board member who listed to
people with personal,discoverable knowledge in this case,and voted on the Morreales' application
based on their representations to him.
Furthermore, the Morreales have indicated, through counsel, that they seek to question
Mr. DeYoung as to whether a variance was required to pursue their project (instead of, or in
addition to, their requested special permit). Obviously, Mr. DeYoung is neither qualified nor
required to render legal opinions, and any testimony regarding his opinion in that regard would
be entirely inadmissible. Moreover, no matter what Mr. DeYoung's opinions are, they have no
bearing on this case—if the Morreales failed to seek the appropriate relief, there's nothing Mr.
DeYoung can testify to that can change or cure that.
Finally, and having established above that a deposition can yield no relevant evidence in
this matter, compelling a Board member to attend a deposition in a Section 17 appeal would be
unduly burdensome. Members of local boards are volunteers and dedicate their free time to assist
in the administration of municipal affairs. Taxing their services with the threat of compelled,
needless testimony would act as a powerful disincentive to the volunteerism that is central to
municipal government. Here, requiring any Board member to appear for a deposition and provide
testimony that would be neither relevant nor admissible, is wholly unnecessary and unduly
burdensome. This is particularly true in this case,where the Morreales seek to force Mr. DeYoung
to travel from Yarmouth to Newton, Massachusetts to attend the proposed deposition.
On these grounds, the Court should enter an Order quashing the Deposition Notice served
upon Mr. DeYoung and also issue a Protective Order prohibiting the Morreales from seeking to
depose other Board members as well.
CONCLUSION
Based upon the foregoing,the Court should enter an Order quashing the Deposition Notice
served upon Mr. DeYoung and also issue a Protective Order prohibiting the Morreales from
seeking to depose other Board members.
The Defendant,
Yarmouth Zoning Board of Appeals,
By its attorneys,
/// (.....________--------
Jason R. Talerman(BBO # 567927)
Michael J. Kennefick (BBO#648004)
Blatman, Bobrowski & Mead, LLC
730 Main Street, Suite 2B
Millis, MA 02054
Telephone: (508) 376-8400
Facsimile: (508) 376-8440
michael@bbmatlaw.com
jay@bbmatlaw.com
Dated: i i /
CERTIFICATE OF SERVICE
I, Michael J Ke efick, hereby certify that I have served copies of the foregoing on all
parties of record this ay of ty, , 2016.
Michael J. Kennefick