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Home My WebLink AboutHousing Injunction Order 8/27/25 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: HOUSING COURT DEP TMENT SOUTHEAST DIVISION Docket No. 25-CV-0185CI TOWN OF YARMOUTH, by and through its Deputy Building Inspector,Timothy Sears, and the TOWN OF YARMOUTH BOARD OF HEALTH,by and through its Assistant Director,Barry Lewis, • Plaintiffs v. KATHERINE LOVELAND AND CHARLENE COLE, • Defendants PRELIMINARY INJUNCTION ORDER This civil action was commenced on August 4, 2025 by the plaintiffs,Town of Yarmouth,by and through its Deputy Building Inspector,Timothy Sears,and the Town of Yarmouth Board of Health,by and through its Assistant Director, Barry Lewis ("the Town") seeking injunctive relief to cause the defendant,Katherine Loveland ("the Owner"),to, inter alia,remove a mobile home from the property located 24 Cottage Drive,West Yarmouth, Massachusetts ("the Property") and to remediate other unsanitary conditions at the Property. On August 20, 2025,this Court ALLOWED a motion to add Charlene Cole,the occupant residing at the Property("the Occupant"),to this action as a party defendant. On August 27,2025,this Court was prepared to conduct a hearing on the Town's Motion for Preliminary Injunction which supported by the Town's Verified Complaint. The(Town appeared for the hearing. Neither the Owner nor the Occupant appeared for the hearing, despite having been provided sufficient notice. Neither the Owner nor the Occupant otherwi e indicated any opposition to the Town's preliminary injunction motion. Insofar as the Town's motion for a preliminary injunction is unopposed,this ourt makes the following findings and issues the ensuing order. FINDINGS OF FACT' Katherine Loveland("the Owner")is the record owner of the residential property located 24 Cottage Drive, West Yarmouth,Massachusetts("the Property"). The Owner does,not presently reside at the Property. The current occupant of the Property is Charlene Cole("the Occupant"). On January 16, 2025,the Town's Deputy Building Commission, Timothy Sears,received a complaint that a mobile home was parked inappropriately at the Property. Under Section 401.1 of the Yarmouth Zoning By-Law, "[a]t no time shall parked or stored camping and recreational equipment be occupied or used for living, sleeping, or housekeeping purposes"...and fli]f camping or recreational equipment is parked or stored outside of a garage, it shall be parked or stored to the rear of the front of the building line of the lot, except for loading and unloading." [The pertinent section of the Yarmouth Zoning By-Law is attached to the Verified Complaint as Exhibit 1.] Implicit within the Verified Complaint is that the Town's Deputy Building Commission, Timothy Sears,conducted an inspection of the Property and verified that a camper was parked in front of the building located on the Property. It is assumed that the Town's Deputy Building Commission, Timothy Sears,took photographs of the camper parked at the Property. A These fmdings of fact are derived from the Verified Complaint executed under the pains and:penalties of perjury by both Timothy Sears,the Deputy Building Inspector for the Town of Yarmouth,and Barry Lewis,the Assistant Director of the Board of Health for the Town of Yarmouth. The Verified Complaint authenticated seven exhibits. 2 photograph depicting a camper parked in a driveway is attached to the Verified Coin aint as Exhibit 2. The Town's Deputy Building Commission,Timothy Sears,prepared a Violation Notice dated February 3, 2025 directed to the Owner. [The Violation Notice is attached to the Verified Complaint as Exhibit 3.] The Violation Notice was delivered by certified mail addressed to the Owner at the Property. The certified receipt was signed by "Jen Cole." There is no indication that either the Owner or the Occupant were ever served a copy of the Violation Notice. In approximately March of 2025,the Town's Health Department received a complaint l concerning trash and debris at the Property. The complaint was investigated and the following conditions were confirmed:"trash, trash cans and other debris strung throughout the yard [a]long with possible rodent activity." Photographs of the conditions investigated by the Town's Health Department—and presumably taken by the Town of Yarmouth Board of Health,by and through its Assistant Director, Barry Lewis, are attached to the Verified Complaint as Exhibit 5. This Court fords that these conditions violate the State Sanitary Code,which specifically provides that the owner of land is responsible for maintaining the land"in a clean and sanitary I condition and free from garbage, rubbish or other refuse"and is further responsible to correct 1 any condition which"affects the health or safety,and well-being of the occupants of any dwelling or of the general public." ' On March 11,2025,the Town of Yarmouth Board of Health,by and through•is Assistant Director,Barry Lewis,prepared a correction notice directed at the Owner. [A copy of the March 11,2025 correction notice is attached to the Verified Complaint as Exhibit 6.] The March 11, 2025 correction notice was delivered by certified mail addressed to the Owner at the Pro e . I p rtY The certified receipt was signed by "Charlene Cole." There is no indication that the Owner was 3 ever served a copy of the March 11,2025 correction notice. Moreover, unless the Oc upant opened the envelope addressed to the Owner,there is no indication that the Occupant eceived the March 11,2025 correction notice. A Notice of Pending Court Action dated April 3,2025, signed by Tim Sears,the Town's Deputy Building Commission,was delivered by certified mail addressed to the Owner at the Property. [A copy of the Notice of Pending Court Action is attached to the Verified Complaint as Exhibit 4.] According to a Tracking Order attached to the Notice of Pending Court Action,the certified mailing was accepted by "an individual" at the Property on April 7,2025 at 2:56 P.M. There is no indication that either the Owner or the Occupant were ever served a copy of the Notice of Pending Court Action. As appears from the Return of Service relative to service of this lawsuit upon the Owner, it appears that the Verified Complaint and all supporting pleadings were served upon the Owner at the Property "by posting copies in a conspicuous manner to the front door of the p Irson/entity being served and copy mailed." There is no indication that the Owner was ever served this lawsuit at her"last and usual place of residence"or that service of process was sufficient under Massachusetts law. As appears from the Return of Service relative to service of this lawsuit upon the Occupant, it appears that the Verified Complaint and all supporting pleadings were served upon the Occupant at the Property"by posting copies in a conspicuous manner to the front'door of the person/entity being served and copy mailed." It appears that service of process to the Occupant is sufficient under Massachusetts law. To date none of the cited violations have been corrected. 4 As a preliminary matter, this Court finds that the conditions cited at the Prope are serious and must be corrected by the responsible party(ies). This Court also finds tha the Towns has established a likelihood of success on the merits,that the Town has established th t the irreparable harm to the Town outweighs any burden on the Owner or Occupant, and that the public interest would be served by the entry of a preliminary injunction. However,the party responsible for creating the violations and correcting the conditions is entitled to due process before this Court may issue any injunction against her. In this case,the only party who has been properly served anything relative to ithe Zoning violations and Sanitary Code violations is the Occupant,who was belatedly served the pleadings on August 21, 2025 after being added to the case on August 20, 2025. Thus,this Court is constrained to issuing injunctive relief against the Occupant ONLY. ORDER BASED ON THE FOREGOING, this Court ORDERS as follows: 1. The Motion for Preliminary Injunction is ALLOWED as to defendant, Charlene Cole, ONLY. 2. Defendant Charlene Cole is hereby restrained and enjoined from occupying for using the mobile home on the Property for living, sleeping or housekeeping purposes; j 3. By September 5, 2025, the defendant Charlene Cole SHALL either remove the mobile home from the Property, or relocate it behind the front building line of the house on the Property so as to comply with the Town of Yarmouth Zoning Bylaw, §§ 401.1.1 and 401.1.2; 4. By September 5, 2025, the defendant Charlene Cole SHALL remediate the unsanitary conditions on the property. She SHALL clean up the accumulated trash and debris 5 strewn about the exterior of the Property by either (a) disposing of all trash d debris in proper receptacles which are serviced by a trash removal company, or (b) disposing of all trash and debris at the local trash disposal area. 5. If the defendant Charlene Cole fails to comply with these Orders by September 5, 2025, the Town of Yarmouth may, at its sole discretion, remediate the violations at the Property and the Town's expenses in so doing may be applied as a lien on the Property and/or charged to Charlene Cole. SO ORDERED. Aokeie )4Lot IRENE H. BAGD•Ii ASSOCIATE JUSTI' E Date: yi 46- 6