HomeMy WebLinkAboutBlue Sky Towers Answer 11.07.23UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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BLUE SKY TOWERS III, LLC d/b/a )
BSTMA III, LLC )
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Plaintiff )
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v. ) Civil Action No. 1:23-cv-12334
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TOWN OF YARMOUTH, MASSACHUSETTS; )
and STEVEN DEYOUNG, SEAN IGOE )
JAY FRAPRIE, JOHN MANTONI, )
RICHARD MARTIN, DOUG CAMPBELL, )
TIMOTHY KELLEY, BARBARA MURPHY )
RICHARD NEITZ, )
ANTHONY PANEBIANCO, )
in their capacity as Members of The Town )
of Yarmouth, Massachusetts Board of Appeals )
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Defendants )
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ANSWER
Now come the Defendants, the Town of Yarmouth (the Town) and Steven DeYoung, Sean
Igoe, Jay Fraprie, John Mantoni, Richard Martin, Doug Campbell, Timothy Kelley, Barbara Murphy,
Richard Neitz, and Anthony Panebianco, the Members of the Town of Yarmouth, Massachusetts
Board of Appeals (the Board) and answer the allegations set forth in the Plaintiff’s Complaint as
follows:
1. This paragraph does not make specific allegations of fact against any defendant and requires
no response. To the extent that a response is required, the Defendants deny that the decision
at issue violated Section 332 of Title 42 of the United States Code in any way.
2. This paragraph does not make specific allegations of fact against any defendant and requires
no response. To the extent that a response is required, the Defendants deny that the decision
at issue violated Section 332 of Title 42 of the United States Code in any way.
Jurisdiction and Venue
3. This paragraph sets forth a legal conclusion to which no response is required.
4. This paragraph sets forth a legal conclusion to which no response is required.
Parties
5. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
6. Admitted.
7. Admitted.
8. Admitted.
9. Admitted.
10. Admitted.
11. Admitted.
12. Admitted.
13. Admitted.
14. Admitted.
15. Admitted.
16. Admitted.
Factual Background
17. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
18. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
19. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
20. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
21. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
22. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
23. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
24. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
25. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
26. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
27. Admitted.
28. Denied.1
29. Admitted.
30. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and the leave the Plaintiff to its proof. Further answering, this paragraph makes
allegations about the contents and intent of an application not attached to the Complaint, and
the defendants are without information sufficient to admit or deny such allegations and leave
the Plaintiff to its proof.
1 The Defendants note that the allegation in this paragraph may contain a typographical error. Section 408.3 of the
Yarmouth Zoning Bylaw, the provision alleged, does not address special permits; Section 408.4, however, does.
31. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
32. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
33. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
34. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
35. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
36. Admitted as to the Plaintiff’s application. Further answering, this paragraph makes allegations
about the contents and intent of an application not attached to the Complaint, and the
defendants are without information sufficient to admit or deny such allegations and leave the
Plaintiff to its proof.
37. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
38. Admitted.
39. Admitted.
40. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
41. Admitted as to the date of the Board’s vote and the filing of its decision with the Town Clerk.
The remaining allegations in his paragraph assert legal conclusions to which no response is
required. To the extent a response is required, denied.
42. This paragraph asserts legal conclusions to which no response is required. To the extent a
response is required, denied.
43. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
44. This paragraph asserts legal conclusions to which no response is required. To the extent a
response is required, denied.
45. This paragraph asserts legal conclusions to which no response is required. To the extent a
response is required, denied.
46. This paragraph asserts legal conclusions to which no response is required. To the extent a
response is required, denied.
47. This paragraph asserts legal conclusions to which no response is required. To the extent a
response is required, denied.
48. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
49. This paragraph asserts legal conclusions to which no response is required. To the extent a
response is required, denied.
50. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
51. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
52. The defendants are without information sufficient to admit or deny the allegations in this
paragraph and leave the Plaintiff to its proof.
53. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
Count I
54. The Defendants incorporate by reference their responses to Paragraphs 1 through 53 as if
fully set forth herein.
55. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
56. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
57. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
58. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
59. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
60. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
Count II
61. The Defendants incorporate by reference their responses to Paragraphs 1 through 60 as if
fully set forth herein.
62. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
63. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
64. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
65. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
66. This paragraph asserts a legal conclusion to which no response is required. To the extent a
response is required, denied.
WHEREFORE, the Defendants deny that Plaintiff Blue Sky Towers III, LLC is entitled to
any declaration or order from the Court, or any other relief, and respectfully request that the
Complaint be denied and dismissed, and judgment enter in favor of the Defendants.
AFFIRMATIVE DEFENSES
1. The Plaintiff’s Complaint fails to state a claim upon which relief can be granted.
2. The Plaintiff lacks standing to assert the claims advanced in the Complaint.
3. The Plaintiff’s request for mandamus does not lie in this statutory action.
4. The Plaintiff has failed to join necessary parties to this action.
Defendants, THE TOWN OF YARMOUTH and
THE MEMBERS OF THE YARMOUTH ZONING
BOARD OF APPEALS
By their Attorneys,
/s/ Matthew D. Provencher
Adam J. Costa (BBO #667840)
Matthew D. Provencher (BBO #694114)
Mead, Talerman & Costa, LLC
30 Green Street
Newburyport, MA 01950
(978) 463-7700
adam@mtclawyers.com
matt@mtclawyers.com
Dated: November 7, 2023
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was filed and served upon the following
counsel of record for the Plaintiff through the Court’s Electronic Filing System on this 7th day of
November, 2023:
Michael S. Giaimo
Danielle Andrews Long
Robinson & Cole, LLP
One Boston Place, Floor 25
Boston, MA 02108
/s/ Matthew D. Provencher