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Home My WebLink AboutDecision 3570 Heatherwood Stipulation of Dismissal of Case 09.28.00 JOHN C. CRENEY, P.C. ATTORNEY-AT-LAW OP 86 WILLOW STREET pp YARMOUTH PORT, MASSACHUSETTS 02675 (508)362-1122RECEIVED FAX(508)362-1125 JOHN G. CRENEY September 28, 2000 S F p 2 8 2000 Richard A. Oetheimer, Esq. TOWN OF YARMOUTH BOARD OF APPEALS Goodwin, Proctor& Hoar, LLP Exchange Place Boston, MA 02109-2881 Re: O'Connell Development Group, Inc. v. Yarmouth Board of Appeals, et al Dear Mr. Oetheimer: Enclosed is the original Stipulation of Dismissal executed by counsel on behalf of the Board and the individual defendants. Would you kindly execute and file such stipulation with the Land Court, and favor me and Attorney Magnuson with copies of your covering letter. Thank you for your courtesies in this matter. wry truly our , -_� John C. Creney Town Counsel JCC/eh Enc. c.c. Philip E. Magnuson, Esq. Yarmouth Zoning Board of Appeals Robert C. Lawton, Jr., Town Administrator Op ep. COMMONWEALTH OF MASSACHUSETTS TRIAL COURT BARNSTABLE COUNTY DIVISION LAND COURT DEPARTMENT C. A. No. 260802 * * * * * * * * * * * * * * * * * * * * * * * * * * O'CONNELL DEVELOPMENT GROUP * INC., f/k/a O'CONNELL ENGINEERING * & FINANCIAL, INC., and MICHAEL T. * DOWNEY, as TRUSTEE OF HEATHERWOOD O'CONNELL * NOMINEE TRUST, * * Plaintiffs, * * v. * * DAVID REID, JAMES ROBERTSON, * JOHN RICHARDS, JOSEPH SARNOSKY, * and DIANE MOUDOURIS, as they are duly * appointed members of the Yarmouth * Zoning Board of Appeals, and * ALVAN HIRSCHBERG, JOHN POWERS, * ROBERT PECOR, BARBARA OXHOLM, * RICHARD MERROW, JACK CROSBY, * NANCY WINER and EDWARD NULTON, * * Defendants. * * * * * * * * * * * * * * * * * * * * * * * * * * * STIPULATION OF VOLUNTARY DISMISSAL Plaintiffs O'Connell Development Group Inc., f/k/a O'Connell Engineering & Financial, Inc., and Michael T. Downey, as Trustee of Heatherwood O'Connell Nominee Trust, and defendants David Reid, James Robertson, John Richards, Joseph Sarnosky, and Diane Moudouris, as they are duly appointed members of the Yarmouth Zoning Board of Appeals, and Alvan Hirschberg, John Powers, Robert Pecor, Barbara Oxholm, Richard Moudoris, Jack Crosby, Nancy Winer and Edward Nulton, acting by their respective attorneys, hereby stipulate and agree, pursuant to Mass. Rule 41A(1)(ii), that the above-captioned action shall be, and hereby is, voluntarily dismissed, without prejudice and without costs to any party. O'CONNELL DEVELOPMENT GROUP DAVID REID, JAMES ROBERTSON, JOHN INC., f/k/a O'CONNELL ENGINEERING RICHARDS, JOSEPH SARNOSKY, and & FINANCIAL, INC., AND MICHAEL T. DIANE MOUDORIS, as they are duly appointed DOWNEY, AS TRUSTEE OF members of the Yarmouth Zoning Board of HEATHERWOOD O'CONNELL Appeals NOMINEE TRUST By their attorneys, By their attorneys, �. rt- ," r 1 ,c • Richard A. Oetheimer (BBO #377665) John C. Creney Goodwin, Procter & Hoar LLP $'6 Willow Street Exchange Place Yarmouthport, MA 02675 Boston, MA 02109-2881 (508) 362-1122 (617) 570-1000 ALVAN HIRSCHBERG,JOHN POWERS, ROBERT PECOR,BARBARA OXHOLM, RICHARD MERROW,JACK CROSBY, NANCY WINER and EDWARD NULTON By their attorneys, Philip . Magnuson Law Office of Philip E. Magnuson 490 Main Street P.O. Box 725 Yarmouthport, MA 02675 (508) 375-0171 DATED: September , 2000 1007891.1 liba JOHN C. CRENEY, P.C. ATTORNEY-AT-LAW 86 WILLOW STREET YARMOUTH PORT, MASSACHUSETTS 02675 (5081362-1122 FAX(508)362-1125 JOHN C. CRENEY December 29, 1999 Charles W. Trombly, Jr., Recorder Land Court 24 New Chardon Street Boston, MA 02114 Re: O'Connell Development Group, Inc., et al Vs: David Reid, et al No. 260802 Dear Mr. Trombly: Enclosed herewith for filing please find Answer of Defendant Members of the Yarmouth Board of Appeals, copies of which have been served this date by first class mail, postage pre- paid upon, Richard A. Oetheimer, Esquire and Jennifer G. Mihalich, Esquire, Goodwin, Procter & Hoar, Exchange Place, Boston, MA 02109, counsel for plaintiffs, and upon Philip E. Magnuson, Esquire, Furman, Cannon & Ross, P.C., 255 Main Street, Hyannis, MA 02601, counsel for Alvin Hirschberg, et al. Very truly yours, John C. Creney JCC/eh Enc. cc: Richard A. Oetheimer, Esq. Jennifer G. Mihalich, Esq. Philip E. Magnuson, Esq. Yarmouth Zoning Board of Appeals Robert C. Lawton, Jr., Town Administrator RECEIVED COMMONWEALTH OF MASSACHUSETTS B EC 3 01999 TOWN OF YARMOUTH BOARD OF APPEALS BARNSTABLE, SS; LAND COURT DEPARTMENT CIVIL ACTION NO. 260802 O'CONNELL DEVELOPMENT GROUP, INC., f/k/a O'CONNELL ENGINEERING& FINANCIAL, INC., and MICHAEL T. DOWNEY, as TRUSTEE OF HEATHERWOOD O'CONNELL NOMINEE TRUST, Plaintiffs v. DAVID REID, JAMES ROBERTSON, JOHN RICHARDS, JOSEPH SARNOSKY, and DIANE MOUDOURIS, as they are duly appointed members of the Yarmouth Zoning Board of Appeals, and ALVAN HIRSCHBERG, JOHN POWERS, ROBERT PECOR, BARBARA OXHOLM, RICHARD MERROW, JACK CROSBY, NANCY WINER and EDWARD NULTON, Defendants ANSWER OF DEFENDANT MEMBERS OF THE YARMOUTH BOARD OF APPEALS In response to the respective allegations of the complaint, the defendant members of the Yarmouth Board of Appeals answer as follows: Introductory Statement: The defendants are without knowledge or information sufficient to form a belief as to the truth of the various and multiple allegations set forth in the Introductory Statement, and call upon the plaintiffs to prove the same. 1. Admitted 2. Admitted 3. Admitted 4. Admitted 5. Admitted 6. Admitted 7. Admitted 8. Admitted 9. Admitted 10. Admitted 11. Admitted 12. Admitted 13. Admitted 14. Admitted 15. Admitted 16. Admitted 17. Denied. Kings Way is an open space village development authorized under sec. 18.07 of the 1975 Yarmouth Zoning By-Law. 18. The defendants are without knowledge or information sufficient to form a belief as to the conclusion of law asserted in Paragraph 18 of the complaint, and call upon the plaintiffs to prove the same. 19. Admitted; and further answering the defendants say that the 1975 decision, and the 1986 modification, did not allow all types of multi-family dwellings, but rather allowed specific types of multi-family dwellings with specific plans or schemes. 20. Admitted; and further answering the defendants say that the 1975 decision and the 1986 modification thereof authorized certain specific multi-family dwellings. 21. Admitted 22. The defendants suggest that the 1986 application for a modification of the 1975 special permit speaks for itself. 23. The defendants are without knowledge or information sufficient to form a belief as to the truth of the assertions made by the Green representative at the 1986 hearing, and say that any such assertions are irrelevant to the substance and effect of the 1986 modification. 24. The defendants are without knowledge or information sufficient to form a belief as to the"....number of probing questions..." and say that any such questions are irrelevant to the substance and effect of the 1986 modification. 25. The defendants say that the 1986 modification speaks for itself. 26. The defendants admit that the plans referred to denoted certain units as "personal care units", and the Phase I plans denoting such units were approved by the defendants in December, 1987; and further answering, the defendants say that the applicant provided no description as to the meaning of such designation, and that approval of the Phase I plans did not thereby constitute a definition of the meaning of the term "personal care units". 27. Admitted 28. Admitted; and further answering the defendants say that issuance of a building permit for five such units, referred to as"assisted living units" did not constitute a definition of the meaning of such term. 29. The defendants admit that Phase II plans were submitted for compliance review; the defendants deny that approval of such construction plans constituted a determination that the so-called proposed assisted living units were within the scope of the Special Permit. 30. The defendants are without knowledge or information sufficient to form a belief as to the truth of the allegation set forth in Paragraph 30 of the complaint, and call upon the plaintiffs to prove the same. 31. Admitted 32. Admitted; and further answering the Defendants say that certification under G.L. c. 19D is irrelevant. G.L. c. 19D was not enacted until 1994, by Statute1994, c. 354, approved January 13, 1995. Plaintiffs have suggested, in Paragraph 18 of the complaint, that the entire Kings Way development (including the Heatherwood site) is governed by the 1975 By-Law. 33. Admitted; and irrelevant. 34. G.L. c. 19D, sec. 18(d) provides: "Regardless of the designation of an assisted living residence as a residential, institutional or other use under any zoning ordinance, assisted living residences certified under this chapter shall be regarded as residential uses for the purposes of the state building code and shall be so regarded by the building inspectors of each city and town in the commonwealth." The defendants say that G.L. c. 19D is irrelevant to the interpretation of the 1975 decision and the 1986 modification thereof. 35. Denied; and further answering the defendants say that the so-called assisted living units are not "independent", but rather are dependent upon the provision of supporting services. 36. The defendants say that it strains credulity to characterize so-called assisted living units to be similar to "any other home"; such so-called assisted living units typically consist of a single full size room, with a bath and kitchen area, closer in size to a motel room than to an apartment. 37. The defendants admit that so-called assisted living residences are not licensed as nursing homes, and say that state licensing is irrelevant to zoning compliance. 38. The defendants say that the assertions set forth in Paragraph 38 of the complaint are irrelevant to zoning compliance with the 1975 decision and its 1986 modification. 39. The defendants say that motivations of the plaintiffs are irrelevant to zoning compliance. 40. The defendants say that motivations of the plaintiffs are irrelevant to zoning compliance. 41. The defendants say that objections of the residents constitute matters of law to be determined by the Court. 42. The decision of July 8, 1999 speaks for itself. 43. Admitted 44. The request for zoning enforcement speaks for itself. 45. Admitted 46. Admitted 47. Denied 48. Denied 49. Denied 50. Denied WHEREFORE, defendants request that its decision of November 23, 1999 be affirmed. Defendants by their Attorney, hn C. Creney wn Counsel 86 Willow Street Yarmouth Port, MA 02675 (508) 362-1122 BBO# 105000 December a , 1999