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E-FILE
Date Filed 7/24/2023 4:13 PM
Superior Court - Worcester
Docket Numbef
ge
COMMONWEALTH OF MASSACHUSETTS
WORCESTER, ss. SUPERIOR COURT
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No. vO Qa
MATHEW OFTEN, ANDREW P JEFFERSON,
ANN MARIE FOLEY, MARK ALIMO,
RAYMOND MEAD, as they are MEMBERS
OF THE SELECT BOARD OF THE TOWN OF
GRAFTON,
Plaintiff,
Vv.
BRIAN WALLER, WILLIAM MCCUSKER,
KAY REED, PETER ADAMS, WILLIAM
YEOMANS, and JIFFY THOMAS, as they are
MEMBERS OF THE GRAFTON ZONING
BOARD OF APPEALS
and NICHOLAS CAPMAN,
Defendants.
ly
COMPLAINT
Nature of the Action
This is an appeal, pursuant to G.L. c. 40A, § 17 from a constructive approval by
the Defendant Town of Grafton Zoning Board of.Appealsjand its above-named
Members (collectively, the “Board”) filed by Defendant/Nicholas Capman (the
“Applicant”) with the Grafton Town Clerk on July 5, 2623 (the “Constructive
Approval”). A copy of the Notice of Constructive Approval is attached hereto as
pl
Exhibit A.
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The Constructive Approval asserts that the ZBA failed to act within the prescribed
time on the Defendant Capman’s application for aVarianee (“Appliction”) after
ha
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Superior Court - Worcester
Docket Number,
Capman requested an extension of time due to unavailability for the ZBA’s next
scheduled meeting.
The Application relates to Capman’s real property located at 3 Bridle Ridge
Drive, Grafton, MA (the “Property”), at which Capman intentionally had an
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outdoor pool installed within the required rear yard set-back as set forth in
Grafton’s Zoning By Law (“ZBL”).
1
Parties t
Plaintiff Mathew Often is the Chair and a Member of the Grafton Select Board
(“the Board”) with a mailing address of 79 Old Westboro Ra, North Grafton, MA
01536.
I
Plaintiff Andrew Jefferson is a Member of the Board with |a mailing address of 31
Wesson St. North Grafton, MA 01536. I
Plaintiff Ann Marie Foley is a Member of the Board with ® mailing address of 45
South St. Grafton, MA 01519, mn
Plaintiff Mark Alimo is a Member of the Board with! al mailing address of 16
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Christopher Dr. Grafton, MA 01519.
Plaintiff Raymond Mead is a Member of the Board wit a mailing address of 217
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Brigham Hill Rd, North Grafton, MA 01536.
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The Board is a duly organized and appointed municipal agency of the Town of
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Grafton, with its principal office at Town Hall at 30Providence Road, Grafton
Massachusetts 01519.
10 Defendant Brian Waller the Chair and a Member of the Grafton Zoning Board of
Appeals (“ZBA”) with a mailing address of 130 Keith Hill Rd., South Grafton,
MA 01560.
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Superior Court - Worcester
Docket Number
iL Defendant William McCusker is a Member of the ZBA with a mailing address of
40 Blanchard Rd. Grafton, MA 01519.
12 Defendant Kay Reed is a Member of the ZBA with!a' mailing address of 7
Nantucket Pl, Grafton, MA 01519. '
13. Defendant Peter Adams is a Member of the ZBA with a mailing address of 100
Brigham Hill Rd. Grafton, MA 01519.
1
14. Defendant William Yoemans is a Member of the ZBA with a mailing address of
ny
297 Providence Rd., South Grafton, MA 01560.
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15. Defendant Jiffy Thomas is an Alternate Member of the ZBA with a mailing
address of 27 Valley View Drive, N. Grafton, MA 01 538. |
16 The ZBA is a duly organized and appointed municipal agency of the Town of
1 |
Grafton, with its principal office at Town Hall at 30 Providence Road, Grafton
Massachusetts 01519. ' '
17. Defendant Nicholas Capman is the Applicant for a Variance with an address of 3
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Bridle Ridge Drive, Grafton MA 01519,
Statement of the Facts
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18. The real estate known and numbered 3 Bridle Ridge Drive 1 (‘the Premises”)
consists of a 52,627 sq, ft. (1.208 acre) lot improved with,
| single family home.
19. Pursuant to the Grafton Zoning By Law (“ZBL”), the préntises is located in an R
40 zone. 1
20. On or about January 25, 2021, Defendant Capman or his,agent submitted an
application (“the January 21 Application”) with the Building Department to
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construct accessory structures on the Premises, fo wit, apool and a pool
Date Filed 7/24/2023 4:13 PM
‘Superior Court - Worcester
Docket Number’
house/gazebo.
21 The January 21 Application had attached thereto proposed
a plan for the
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accessory structures dated January 14, 2021.
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22. After review of the January 21 Application and plan, the Building Department
hy
determined that the proposed accessory structures violated the ZBL’s requirement
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that all structures be located a minimum of 15-feet from the side-yard property
boundary line.
I
23 The Building Department notified Defendant Capman obits determination on or
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about February 23, 2021. 1
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24. Thereafter, on or about July 15, 2021, Defendant Capman or his agent submitted a
new application (“the July 21 Application”) with the Building Department to
construct the same accessory structures on the Premises.
25 The July 2021 Application had attached thereto a revised proposed plan dated
July 2021 for the accessory structures that depicted them located outside of the
ry
15- foot side-yard set-back in compliance with the ZBL.
'
26 As a result, on or about July 28, 2021, the Building Depatinent issued to
Defendant Capman two Building Permits, one for the poo | (P0-21-29) and one
for other the pool house/gazebo (BP-21-516). 1
27 Thereafter, Defendant Capman caused the pool and gazebo to be constructed.
28, Thereafter, Defendant Capman or his agent filed anas-built plan with the
Building Department that depicted both the pool and the! gazebo within the 15-
foot side-yard set-back. |
29. After review of the as-built plan, by letter dated March 3 2023, the Building
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Docket Number
Department notified Defendant Capman that the pool and gazebo are located
within the set-back and were not constructed in accordance with the approved
documents submitted to the Town.
30. The March 3, 3023 letter ordered Defendant Capman to come into compliance
with the ZBL. 1i
31 On or about March 13, 2023, Defedant Capman, through ‘ounsel,
c filed an
|ne
application for a variance (“Variance Application”), acknowledging that the pool
was constructed only 7.5 feet from the side yard boundary ine, and that the
gazebo was constructed only 13.1 feet from the same boundary.
it
32 The Variance Application asserted that the “unique topography of Mr. Capman’s
property and the location of his home on the property isbuch that placement of
the pool and gazebo area 15 feet or more from the side property line or to the rear
of the home would pose a substantial hardship and diminish the value of these
accessory structures.”
33. At its meeting held on April 27, 2023, the ZBA opened the public hearing on the
Variance Application.
34, ZBA members noted that the shape of the Property “is not! unique” and that “[soil. 3
1
shape, and topography do not apply in this instance.”
35, A member of the ZBA repeatedly stated that, in his opinion, the Premises did not
“come even close” to meeting the standard for a variance. ,
36 Defendant Capman, through counsel, thereafter requested that the ZBA continue
the hearing to June 15, 2023.
37. The ZBA informed the Defendant that if he needed additional time beyond June
Date Filed 7/24/2023 4:13 PM
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Docket Number"
15, he should request same from the ZBA administrator.
38. On May 23, 2023, defendant, through counsel sent an email to the ZBA
administrator stating:
fa
Following up on [the Variance Application], we are,exploring other
options for this property. While we do that, we would' like to keep the
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ZBA application open and will grant continuances for the time for a
decision,
39. Through counsel, Defendant Chapman then submitted a fuer written request to
continue the hearing. I
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40. By email dated July 5, 2023, the ZBA Administrator informed Defendant
Capman’s counsel that the ZBA could hold a further hearing on the Variance
Application at its meeting on July 27, 2023.
At
4l Later that same day, July 5, 2023, the Defendant through counsel filed a Notice of
Constructive Approval. Ma
Count I -- Constructive Approval ''
42. The Plaintiffs repeat and reallege the allegations in all above paragraphs and
incorporate the same herein by reference. ,
43 The accessory structures were constructed in violation ofithe ZBL’s set back
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requirements.
44. Although Defendant Capman filed a VarianceApplicatioti,|he failed to establish
that the Property meets the statutory requirements for the felief requested.
45 Thus Defendant Capman has not and can not establish that| he is meets the legal
requirements for a variance pursuant to G.L. c. 40A, § 17,
46 The Applicant is therefore not entitled to a variance.
47. The Board is aggrieved by the Notice of Constructive Approval because the
Date Filed 7/24/2023 4:13 PM
Superior Court- Worcester
Docket Number
Defendant did not and can not establish that he is eligible for a variance under the
t
General Laws i,
WHEREFORE, the Plaintiffs respectfully request that this Court énter judgment
annulling the Constructive Approval.
Prayer for Relief I;
For the reasons set forth above, the Plaintiffs pray that this Honorable Court grant
the following relief; I
Order that the Constructive Approval be annulled:
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Determine that Constructive Approval is arbitrary mn capricious, erroneous,
and/or in excess of the authority of the ZBA.
Award the Plaintiff its costs and attorney’s fees.
Enter such other relief as may be just and appropriate.
it
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Plaintiffs,
The Town ofGrafton!
Date HN, l 123 i
THA
elk mer, BBO No. 629147
‘Town Counsel
Kremer Law, LLC!
9 Damonmill Squaie, Suite 4A4
Concord, Massachusetts 01742
ginny @kremerlaw.tiet
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ra
it
Date Filed 7/24/2023 4:13 PM
‘Superior Court - Worcester
Docket Number
-
RECEIVER bs 4OLCRs
SEARTY 4
Date: July5, 2023
To Kandy Lavallee, Town Clerk ‘93 JUL -5 PHU 06
Town of Grafton
30 Providence Road |
Grafton, MA OF519
A TRUE COPY ATTEST
From: Brian R. Falk, Esq.
Mirick O'Connell
100 Front Street
oq
TOWN CLERK:
‘
1 1
Worcester, MA 01608
RE: NOTICE OF CONSTRUCTIVE APPROVAL |:
ZBA Case #894, Variance Application for 3 Bridle Ridge Drive, Grafton
CERTIFICATE OF SERVICE AND MAILING
I, Brian R. Falk, counsel for the Petitioner, Nicholas Capman, hereby, certify that a true copy of
the Notice of Constructive Approval, dated July 5, 2023 (the “Clerk’s'Notice”), concerning the
Petitioner seeking constructive approval of the above-referenced Variance application case, was
delivered in hand to (a) the Grafton Town Clerk, and (b) theGrafton Planning Board, in
accordance with Massachusetts General Laws Chapter 40A, § 15,rhe on July 5, 2023.
I further certify that a true copy of the Notice of Constructive Approval, dated July 5, 2023 (the
“Notice to Interested Parties”), concerning the Petitioner seeking constructive approval of the
above-referenced Variance application case, was served upon allParties ini Interest, as defined
under Massachusetts General Laws Chapter 40A, § 11, by certified mal postage prepaid, on
July 5, 2023, and include the following persons and entities:
4
All persons and entities set forth on the Assessors Certified Li: | of Abutters, attached
2.
Exhibit A;
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The Planning Boards of the following abutting cities and towns: (a) Worcester; (b)
Shrewsbury; (c) Westborough; (d) Upton; (e) Northbridge; ® Sutton; and (g) Millbury.
Copies of the Clerk’s Notice and Notice to Interested Parties, bothwithout exhibits, are attached
hereto respectively as Exhibit B and Exhiblt C for reference Purposes only.
Signed under the penalties of perjury on this Sth day of July 2023 '
hy \
eS
Brian R- Falk, Esq.
{Client Matter 27223100002/A8359493.000%}
Date Filed 7/24/2023 4:13 PM
Superior Court - Worcester
Docket Numbér
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Exhibit A - Abutters List
1
L,
(Client Matter 27223/00002/48356493.00Cx)
Date Filed 7/24/2023 4:13 PM
SuperiorCourt- Worcester
Cocket Number
Sto
GR. AtRyDQ % RECENWF
% TOWN OF GRAFTON 1
AY GRAFTON MEMORIAL MUNICIPAL CENTER
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Jul 19, 2024 |
CVCV21-0197823
GLADSTONE, ET AL. VS. MEISSNER, ET AL.
Case Number: CVCV21-0197823
This matter is on calendar for review regarding trial setting. The previous trial date was vacated
by the Court’s order dated April 18, 2024. The Court previously designated this matter exempt
from case disposition time standards. It appears that neither side has posted jury fees, which as
previously noted in the Court’s October 23, 2023 Order, is deemed a waiver of the right to a jury.
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J.D. VS. THE GENERAL COUNCIL OF THE ASSEMBLIES OF
Ruling
OPV Coalition et al vs Fox Canyon Groundwater Management Agency et al
At the June 10, 2024, case management conference, the court noted that the court was not lifting the discovery stay at that time and without a Phase 1 discovery plan in place. The court required the parties to meet and confer as to such a discovery plan, including whether the participation of a discovery referee/ special master is appropriate in the formulation of such plan. This issue was identified as being a subject of discussion at this, the next CMC.
The parties have filed numerous documents addressing the appointment of a discovery referee/ special master and made alternative proposals. The proposals address the following subjects:
(1) Appointment of a special master or discovery referee;
(2) The scope of the authority of the special master or discovery referee;
(3) Discovery dispute procedures;
(4) Who is to be appointed as a special master or discovery referee; and,
(5) Allocation of fees and costs of the special master or discovery referee.
(1) Appointment of a special master or discovery referee
The first issue presented is whether the position to be appointed should be that of a special master under Code of Civil Procedure section 845 or a discovery referee pursuant to Code of Civil Procedure section 639. (Note: Insofar as the parties have filed papers in groups that are not easily identified by a common name, non-plaintiff party groups are identified herein for ease of writing by a shortened version of the name of the first named party in that group’s own list of parties.)
Plaintiffs propose appointment of a special master, with the order specifically noting that the special master is not subject to disqualification pursuant to Code of Civil Procedure section 170.6.
Defendants City of San Buenaventura, City of Oxnard, City of Camarillo, Calleguas Municipal Water District, The Proctor & Gamble Paper Products Company, R.N. Daily Ranch, LLC, Archdiocese of Los Angeles, The Roman Catholic Archbishop of Los Angeles, Archdiocese of Los Angeles Education & Welfare Corp., St. John’s Seminary in California, Camrosa Water District, California-American Water Company, United Water Conservation District, and the Marathon 100 defendants (consisting of Marathon Land Inc. and 99 other landowner defendants) filed a separate proposal for the appointment of a discovery referee rather than a special master (the San Buenaventura Response, and sometimes collectively, the Diverse Defendants Coalition). Defendant Fox Canyon Groundwater Management Agency (FCGMA) joins this proposal.
Defendants Oxnard Union High School District, Rio School District, and Vineyard Mutual Water Company filed a partial joinder to the above-defendants’ proposal (the Oxnard Union Response). This partial joinder does not specifically take a position with respect to the issue of special master as opposed to discovery referee (although it uses the term “discovery referee throughout”).
Defendant Intervenors Pleasant Valley County Water District, Guadalasca Mutual Water Company, and defendants John S. Broome and Rancho Guadalasca, LLC, filed a response to both proposals (the Pleasant Valley Response) in which they state that they do not oppose the description of the role and accompanying tasks as described in either proposal.
Defendant Arnold H. Meyerstein, trustee of the Meyerstein Family Trust filed a partial joinder in the above-defendants’ proposal (the Meyerstein Trust Response), stating on this issue: “Whether titled ‘discovery referee’ or ‘special master’, the appointee should be given functions that include discovery referee and retaining a data consultant for the initial disclosures’ compilation, manipulation, analysis, and presentation. An appropriate title would insulate the appointee from disqualification challenges.”
Defendant Deardoff-Jackson Company filed an opposition to plaintiffs’ proposal (the Deardoff-Jackson Response) focusing on cost allocation (discussed below) and not taking a position on the issue of special master or discovery referee. (Note: Deardoff-Jackson Company identifies itself as self-represented in its caption and is signed by an individual on its behalf. As plaintiffs note in their opposition, an entity may not appear in litigation without an attorney of record. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145 [“[A] corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record.”].) This representation issue is not now before the court, but needs to be addressed by Deardoff-Jackson Company.)
Defendants Saticoy Properties, LLC, State Ready Mix, Inc., and State Ready Mix Recycling, Inc., filed a response (the Saticoy Response) stating their position with respect to the person to be appointed, particularly responding to the above-defendants’ proposal.
Defendant United States filed a response (the United States Response) which generally supports the appointment of a third-party neutral, whether as a referee or special master.
Defendants John W. Borchard, Jr., trustee, Suzanne Kelly, trustee, J. David Borchard, trustee, Marilyn Bachler Unruh, trustee, Edward B. Chamberlain, trustee, Hibbs Properties, LLC, Jacob J. Talbot, and Angelina C. Juaraz filed a response to both proposals (the Borchard Response). These defendants support appointing a special master.
These parties have also filed responses to other parties’ contentions. The court has reviewed all of the papers filed by the parties.
The difference between a special master under section 845 and a discovery referee under section 639 is one of breadth. A special master under section 845 may have broad authority under the direction of the court.
“The court may appoint one or more special masters whose duties may include the following:
“(1) Investigating technical and legal issues, as directed by the court. The special master shall compile a report of findings in accordance with Section 846.
“(2) Conducting joint factfinding with the parties, their designees, or both.
“(3) Investigating the need for, and developing a proposal for, a preliminary injunction pursuant to Article 13 (commencing with Section 847).
“(4) Performing other tasks the court may deem appropriate.” (Code Civ. Proc., § 845, subd. (a).)
“The special master shall make a draft report available to the parties and provide at least 60 days for the parties to submit written objections to the draft report.” (Code Civ. Proc., § 846, subd. (a).) “An objection to the draft report shall identify the specific grounds and evidence on which the objection is based.” (Code Civ. Proc., § 846, subd. (b).) “The special master may notice and hold hearings, as he or she deems appropriate, to gather information or address issues raised in the objections to the draft report.” (Code Civ. Proc., § 846, subd. (c).) “The special master shall consider the objections to the draft report and develop a final report that shall be filed with the court, together with supporting evidence.” (Code Civ. Proc., § 846, subd. (d).)
By contrast, a discovery referee under section 639, where the appointment is not with the consent of all parties, has much narrower authority.
“When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640:
“(1) When the trial of an issue of fact requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein.
“(2) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect.
“(3) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action.
“(4) When it is necessary for the information of the court in a special proceeding.
“(5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (Code Civ. Proc., § 639, subd. (a).)
“In a discovery matter, a motion to disqualify an appointed referee pursuant to Section 170.6 shall be made to the court by a party either:
“(A) Within 10 days after notice of the appointment, or if the party has not yet appeared in the action, a motion shall be made within 10 days after the appearance, if a discovery referee has been appointed for all discovery purposes.
“(B) At least five days before the date set for hearing, if the referee assigned is known at least 10 days before the date set for hearing and the discovery referee has been assigned only for limited discovery purposes.” (Code Civ. Proc., § 639, subd. (b).)
“When a referee is appointed pursuant to paragraph (5) of subdivision (a), the order shall indicate whether the referee is being appointed for all discovery purposes in the action.” (Code Civ. Proc., § 639, subd. (c).)
Two issues are presented by the parties in their discussion of this issue. The first is the application, if any, of disqualification pursuant to section 170.6. Some parties have indicated their intent to exercise whatever rights they have under section 170.6 if the appointed discovery referee is not acceptable to them. (E.g., Saticoy Response, at p. 3.) Others have argued that section 170.6 disqualification absolutely does not apply to groundwater adjudications regardless of what section is used as the basis for appointment of a neutral. (See Code Civ. Proc., § 838, subd. (c).)
The court agrees with the point made by the Meyerstein Trust that an appropriate title may obviate issues regarding the application of section 170.6—if indeed it has any application here. Moreover, as discussed below regarding scope, the tasks to be performed by the third-party neutral are now envisioned to be a bit broader than that typically assigned to a discovery referee under section 639. Accordingly, the court determines that the appropriate approach is to appoint a special master under section 845.
(2) Scope of Authority and Discovery Dispute Resolution
As the court indicated in its prior rulings, the initial stage of Phase 1 is to gather and exchange information necessary to address Phase 1 issues, whether by settlement or trial. In order to accomplish this effectively, a discovery plan is required before the parties commence discovery. The task of the special master will be to evaluate the scope of available information through initial disclosures and the discovery needs of the parties. The court expects this evaluation will lead to a reasonable and efficient discovery plan, including appropriate deadlines and guideposts. The court will leave it to the special master to take appropriate steps to see this occurs expeditiously.
To the extent that discovery disputes arise in the course of discovery, the court will assign to the special master the resolution of all such disputes, subject to review by the court. Again, the special master may accomplish this in whatever manner is most appropriate and is consistent with law. The court will not constrain the special master to any specific briefing procedure or schedule.
It is not now contemplated that that special master would act independently to investigate or to find facts. It is also not now contemplated that that the special master engage any third parties to collect, organize, or distribute data. It may, or may not, prove advisable to do so after the discovery plan is developed, but the court prefers a recommendation or proposal from the special master before authorizing such additional expense or expanding the scope of the special master’s commission.
(3) Special Master Appointment
Plaintiffs propose a special master to be appointed from among: (i) Hon. Patrick J. Walsh (ret.); or (ii) Hon. Mitchell Beckloff (ret.).
The San Buenaventura Response proposes a special master to be appointed from among: (ii) Hon. Mitchell Beckloff (ret.); (iii) Hon. Jack Komar (ret.); or (iv) Hon. James Smith (ret.). This proposal is joined by FCGMA. Certain of those joining the San Buenaventura Response have expressed reservations as to the appointment of Judge Walsh.
The Oxnard Union Response joins in the proposal of Judge Beckloff, but does not oppose the appointment of Judge Walsh. The Pleasant Valley Response also supports the appointment of either Judge Beckloff or Judge Walsh. The United States Response supports the appointment of Judge Beckloff, or if Judge Beckloff is not available, the appointment of Judge Walsh. The Borchard Response supports either Judge Beckloff or Judge Walsh.
The Meyerstein Trust Response supports the appointment of Judge Beckloff.
The Deardoff-Jackson Response does not take a position on who should be appointed, but disputes whether a special master is required (and more particularly how a special master should be compensated).
The Saticoy Response supports the appointment of Judge Walsh and opposes the appointment of Judge Komar.
Based upon the totality of these responses, it appears that Judge Beckloff is the best candidate, being both qualified and not subject to any party’s specific objection. At least as of May 23, 2024, Judge Beckloff has confirmed that he is available and willing to be considered for this appointment. (Newmark decl., dated July 12, 2024, ¶ 3.) Subject to confirmation that Judge Beckloff remains available, the court will appoint Judge Beckloff as special master.
(4) Allocation of Special Master Fees and Costs
The most contentious issue presented here is the manner is which the fees and costs of the special master are allocated among the parties to this litigation. (Note: A separate discussion of caps follows the allocation discussion, below.) There are several alternatives and qualifications proposed:
(i) Plaintiffs propose a two-category approach to allocation. Category 1, work that impacts specific parties litigating specific issues, and category 2, work generally assisting all parties. Category 1 fees and costs would be allocated by the special master only to the parties litigating those issues, making recommendations as to the allocation among those parties. Category 2 fees would be allocated one-third pro-rata by law firm (or party if self-represented), and two-thirds pro-rata by each party’s average annual groundwater pumped from the OPV Basins between 2017 and 2019 as reported to FCGMA. The United States by statute is exempt from all such fees, and the United States’ share is not considered in determining pro rata amounts. (All parties appear to acknowledge the exemption of the United States from these fees and costs. All further discussions and proposals, below, should be understood to include this exemption. Because the United States is exempt, it takes no position as to allocation among the other parties.)
(ii) The San Buenaventura Response, joined by FCGMA, also proposes a two-category approach based on specific (category 1) and general (category 2) special master activities. For category 1 fees and costs, the fees should be split equally between the moving (50 percent) and responding (50 percent) parties. Category 2 fees and costs should be allocated 50 percent to plaintiffs and 50 percent to defendants, with the respective 50 percent amount further divided equally by party.
(iii) The Oxnard Union Response joins the San Buenaventura proposal, but notes that some parties may need to seek relief because of their size or circumstances and that for category 1 fees and costs the special master should be able to recommend shifting fees based upon the nature of the discovery conduct.
(iv) The Pleasant Valley Response supports a cost-sharing framework that is representative of each party’s draw on the Basin’s resources and so supports plaintiffs’ proposal and does not support the San Buenaventura Response proposal.
(v) The Meyerstein Trust Response proposes a meet and confer as to allocation after initial disclosures are assessed, but there should be a distinction between non-participant defendants. The Meyerstein Trust Response proposes, as among defendants, an initial allocation of $50 for each defendant individual or family landowner or small non-profit entity and granting exemptions for entities seeking 2 AFY or less and farming in a disadvantaged community or classed as a small farmer under Code of Civil Procedure section 850, with the remainder allocated by stipulation.
(vi) The Saticoy Response does not take a position on allocation of fees and costs.
(vii) The Deardoff-Jackson Response opposes the plaintiffs’ proposal, arguing that category 2 work does not actually benefit self-represented defendants who should not have to pay any special master fees or costs. While questioning whether there is any value to special master work for that class of defendants, this response suggests that plaintiffs should pay all such costs as the principal beneficiary of such costs.
Apart from the abstract formula to be used to allocate costs, these proposals also point out the numerical effect of these choices given the number of parties and the total amount of funds to be raised by the allocation. With respect to the total amount of funds, plaintiffs propose a cap of $250,000 without further court authorization. The San Buenaventura Response proposes an initial cap of $200,000. Neither of these proposals provide a factual basis for these amounts.
With respect to number of plaintiffs, the declaration of counsel for the City of Oxnard, attorney Gregory Newmark, provides a count of the parties by position in this litigation: 462 parties, of which 168 are plaintiffs, collectively represented by one firm, and 294 defendants. (Newmark decl., dated July 12, 2024, ¶ 8.) If $200,000 is allocated first 50/50 plaintiffs/defendants and then per party, the results would be: each plaintiff would pay $595.24; each defendant would pay $340.14. If $200,000 is allocated strictly per party, each party would pay $432.90. These numbers would, of course, change with the respective denominator as parties may be excluded for reasons of size or circumstance. Under plaintiffs’ proposal the allocation is more complicated because it depends on how each party is represented and how much water each party is reporting as pumped.
Everyone appears to agree that the United States is statutorily exempt from being charged with any such fees. Consequently, that exemption, including the exclusion of the United States from any pro-rata calculation, will be part of the court’s order.
As a general proposition, the court agrees as to category 1 fees and costs that the parties engaged in a discovery dispute should initially bear the fees and costs associated with that dispute 50 percent to the moving party or parties and 50 percent to the responding party or parties, with the special master being authorized to recommend a reallocation of such fees and costs depending upon the circumstances of the particular dispute. As this is consistent with discovery practice involving discovery referees in less complex cases, there does not appear to be substantial dispute about this allocation method for this type of fees and costs.
The court’s authority as to special master fees is as follows:
“The court shall fix the special master’s compensation on the basis and terms stated in the appointing order, and the court may set a new basis and new terms after giving the parties notice and an opportunity to be heard. The court shall allocate payment of the special master’s compensation among the parties in an amount and a manner that the court deems equitable. The court may waive a party’s obligations to pay the special master’s compensation upon a showing of good cause.” (Code Civ. Proc., § 845, subd. (b).)
The difficulty with allocating category 2 fees and costs is that each of the proposals is equitable in some respects and not equitable in others. The two principal competing equitable concepts are that “[h]e who takes the benefit must bear the burden” (Civ. Code, § 3521) and “[e]quality is equity” (In re Miller’s Estate (1963) 212 Cal.App.2d 284, 298).
As to benefits and burdens, those whose participation in this litigation is minimalist should not be burdened to the same extent as those who are lead players. The suggestion of setting a threshold of 2 AFY appears to be reasonable (i.e., that to obtain such an exemption a party would file a stipulation that it does not, and will not, seek more than that amount in this litigation ), although the effect of such a threshold on the remaining parties, either in dollars or as a denominator, is unclear. The court is concerned about the perception suggested in some papers that an allocation of such costs may become a “pay to play” regime. However, the amounts under discussion for special master fees and costs are modest, especially compared with the attorney fees and other party litigation costs and considering the significance of the rights of each party being resolved by this litigation.
At the same time, the court finds it equitable that if certain parties are unequally benefitting from the special master proceedings (not by virtue of success in making or opposing proposals, but in the underlying purposes of the proceedings) it may be appropriate for those parties to bear a larger share of the expenses. This may make allocation in some sense correlate to the size of their claim of water rights or to some other measure of significance of the discovery proceedings. Whatever might eventually be the best answer (there is clearly no obvious “right” answer), the court is not in a position to anticipate such a nuanced allocation at this time. This analysis suggests that the issue should be reviewed later with input from the special master.
In terms of “equal” allocations, the court does not favor any allocation that is proportional to the number of law firms or self-represented individuals. One fairness issue raised as to such an allocation (one-third of category 2 fees and costs under plaintiffs’ proposal) is that because plaintiffs are collectively represented by one law firm, under such an allocation all plaintiffs would have only one share of a third of the costs, as compared with one share for each separately represented party. Parties already receive a benefit from sharing their attorney fees based upon the work of their attorneys and the economies of scale that may apply to such sharing. The underlying benefit to the parties is not dependent upon party choice to prefer unique representation or small groupings of litigants. This aspect of plaintiffs’ proposal is rejected.
As between a “per party” (irrespective of position in the litigation) allocation and a plaintiff-defendant split first followed by an allocation among plaintiffs and defendants, respectively, the difference is, based on the numbers presented but not adjusted for exemptions, not very significant in absolute dollars. Because the court will not resolve these issues now, further discussion among the parties of this issue is warranted. The court reminds the parties that the aggregate cost in attorney time of an aggressive dispute is likely to exceed whatever savings might be achieved through an otherwise “more favorable” allocation scheme.
This leaves the following issues outstanding:
(1) Is Judge Beckloff willing to accept this appointment at this time? Assuming he remains willing:
(2) How much money is necessary for the organizational meetings/ hearings with Judge Beckloff? Once the amount necessary for start-up is determined, the court will finalize an initial allocation to assess this amount from the parties. This initial allocation is not intended to represent the interim or final allocation, but is to get the process started so that Judge Beckloff can provide a recommendation as to the allocation and mechanism for ongoing payments. To the extent the initial allocation differs from the interim or final allocation, the court expects to address the interim or final allocation retroactively so that any relative over-payments or under-payments made initially are credited or debited against the allocation as if it had been initially determined. The parties’ further input or agreement regarding this initial allocation is also needed.
(3) What process should exist to determine exemptions from assessment on the basis of de minimis participation or other circumstances?
(4) What orders are necessary to meet statutory requirements to appoint and effect the special mastership as discussed herein?
The court will make such orders at the next case management conference.
This leaves the final issue of when the next case management conference should be held given the need to meet and confer as discussed herein. There is now a case management conference scheduled for August 9, 2024. Counsel will need to be able to discuss whether this case management conference should be rescheduled.
Ruling
William Shaw vs Ruth Shaw
Jul 15, 2024 |
23CV02548
23CV02548
SHAW v. SHAW
(UNOPPOSED) PLAINTIFF’S MOTION TO APPOINT PARTITION REFEREE
The unopposed motion is granted. Mr. Singer will be appointed as the partition referee.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Case No. 19CV02702
RHOADS v. BECKLEY
APPLICATION FOR ORDER FOR SALE OF DWELLING/OSC FOR SALE OF
DWELLING
This application is continued as discussed below.
The original application, brought pursuant to Code of Civil Procedure sections 704.740
through 704.850, was filed on January 26, 2023. For a variety of reasons, the application was
continued and not ruled upon. When the application was filed, Mr. Beckley was without counsel
and the court noted procedural as well as notice issues with the application, resulting in
continuances. Mr. Beckley then retained counsel, Thornton Davidson, on June 29, 2023.
Mr. Davidson sought to be relieved as counsel on May 8, 2024. The declaration in
support of Mr. Davidson’s motion to be relieved noted the next court date as June 11, 2024. The
court issued a tentative ruling the day before the June 11 hearing, tentatively granting the motion
to be relieved and specifically continuing the application for sale of dwelling to allow defendant
to either retain new counsel or participate in a pro per capacity. The parties were ordered to
appear. At the June 11 hearing, attended by Mr. Davidson and plaintiff’s counsel, Mr. Eschen,
Page 1 of 2
the court granted Mr. Davidson’s motion to be relieved and set July 11, 2024 as the next hearing
date. Mr. Beckley did not attend the June 11, 2024 hearing, nor is there evidence before the court
that he was notified of the July 11, 2024 date. The order prepared by Mr. Davidson after the
hearing and served on Mr. Beckley stated that the tentative ruling became the order of the court.
While the order attached the tentative ruling, there is no mention in either the order or the
tentative ruling of the July 11, 2024 hearing date for the application. The tentative ruling
specified that the application hearing would be set at the next court date.
The court will issue an order to show cause pursuant to Code of Civil Procedure section
704.770, subdivision (a). “After the judgment creditor has filed an application for an order for
sale, the court sets a time and place for hearing and must order the judgment debtor to show
cause why an order for sale should not be made in accordance with the application. The hearing
must be set no later than 45 days after the application is filed, or such later time as the court
orders on a showing of good cause.” (2 MB Practice Guide: CA Debt Collection 17.36 (2024).)
After the OSC is set, Mr. Rhoads must serve on the judgment debtor, Mr. Beckley, a copy of the
OSC, a copy of the application, and a copy of the notice of hearing in the form required by the
Judicial Council. (See Code of Civ. Proc. § 704.770, subd. (b).)
Page 2 of 2
Ruling
FRANK BASILE VS PARVIZ TAHERPOUR, ET AL.
Jul 18, 2024 |
20STCV13012
Case Number:
20STCV13012
Hearing Date:
July 18, 2024
Dept:
39
TENTATIVE RULING
DEPARTMENT
39
HEARING DATE
July 17, 2024
CASE NUMBER
20STCV13012
MOTION
Motion to Reopen Discovery
MOVING
PARTY
Plaintiff Guadalupe Encisco
OPPOSING PARTY
Defendant Avanti Hospitals, LLC
MOTION
Plaintiff Guadalupe Encisco (Plaintiff) moves to reopen discovery related to Plaintiffs recent surgeries.
Defendant Avanti Hospitals, LLC (Defendant) opposes the motion.
The court previously considered this matter and, in its order of June 25, 2024, continued it to July 17, 2024 for the parties to submit discovery plans in compliance with this courts March 1, 2024 order.
ANALYSIS
In determining whether to reopen discovery, the court must consider the necessity of and reasons for the additional discovery, the diligence or lack thereof by the party seeking to reopen discovery in attempting to complete discovery prior to the discovery cutoff date, whether permitting the discovery will prevent the case from going forward on the trial date or will otherwise prejudice any party, and any past continuances of the trial date. (See Code Civ. Proc., § 2024.050, subd. (b).)
Plaintiff moves to reopen discovery as to surgeries Plaintiff underwent on January 8 and 11, 2024.
(See March 17, 2024 Declaration of Raymond Ghermezian (in support of and attached to motion), Exhibit A.)
This is a proper basis to reopen discovery.
Plaintiff proposes to provide updated medical records to Defendant, to submit to a second session of deposition, and to respond to additional written discovery concerning
Plaintiffs surgeries and updated medical issues.
(Plaintiffs Proposed Discovery Plan.)
Defendant agrees Plaintiffs proposed discovery is necessary but contends Defendant will also need to propound subpoenas for updated medical and pharmacy records, depose Plaintiffs surgeon regarding her surgical care, prognosis, and future care needs, and have Plaintiff sit for an updated orthopedic examination with Defendants expert.
(Defendants Proposed Discovery Plan.)
The court finds Defendants proposed discovery plan is reasonable and necessary for Defendant to fairly defend this action.
However, the court notes Defendant did not include discovery in 2025 in its proposed deadlines, but rather jumped from November 30, 2024 to March 26, 2026.
The court assumes this was a clerical error.
The court, therefore, grants the motion, subject to Plaintiffs stipulation to submit to Defendants proposed discovery plan, with all proposed deadlines in 2026 corrected to reflect deadlines on the proposed dates in 2025.
The court notes, pursuant to the courts order of December 5, 2023, the five-year date for this case is June 26, 2026.
The court also conditions its grant of this motion on the parties stipulation to continue the trial date to a date prior to June 26, 2026.
Plaintiff is to give notice of this order and file proof of service of same.
Ruling
Hull, et al. vs. The Cadle Company, et al.
Jul 21, 2024 |
22CV-0200159
HULL, ET AL. VS. THE CADLE COMPANY, ET AL.
Case Number: 22CV-0200159
Tentative Ruling on Order to Show Cause Re Sanctions: An Order to Show Cause Re:
Sanctions (“OSC”) issued on May 17, 2024, to Plaintiffs James Hull and Shirley Hull for failure
to abide by California Rule of Court 3.110. Defendant Tri Counties Bank was amended into the
Complaint on January 24, 2024. There has been no summons issued for Tri Counties Bank, and
they have not been served. The matter is not at issue. No response to the OSC has been filed.
Plaintiff remains in violation of CRC 3.110. Sanctions will be imposed in the amount of $250.
The clerk is instructed to prepare a separate Order of Sanctions. The Court confirms today’s
review hearing set for 9:00 a.m.
Ruling
CAROL JEAN THOMPSON, VS DELMER JAMES MCENTYRE, ET AL.
Jul 16, 2024 |
19TRCV00310
Case Number:
19TRCV00310
Hearing Date:
July 16, 2024
Dept:
B CAROL JEAN THOMPSON, vs DELMER JAMES MCENTYRE, et al.
Case No. 19TRCV00310
Before the Court is the Motion for Summary Judgment of Defendant Delmer James McEntyre.
This action was filed on March 27, 2019 by Plaintiff Carol Jean Thompson alleging claims identified as "derivative Complaint for Partition and Declaratory Relief. The complaint was quickly superseded by the First Amended Derivative Complaint for Declaratory Relief filed June 4, 2019. That is the operative pleading for purposes of this Motion. (Plaintiff requests that the Court take judicial notice of the operative complaint. That request is unnecessary. The operative complaint in the action is inherently before the Court for purposes of a motion for summary judgment as it is the staring point for the analysis of the merits of the motion.)
The Complaint alleged that there is the McEntyre Family Properties, LLC ("MFP, LLC"), whose members are Plaintiff, DefendantMary Elaine Tavares and Russell McEntyre. (Complaint 8.) MFP, LLC owns two pieces of real property. (Complaint 11, 12.) There is an operating agreement. (Complaint 10.) Plaintiff alleged that "13. Over the past several years, the ability of the MFP, LLC Members to cooperatively operate the MFP, LLC has deteriorated. This lack of cooperation increased since 2016. 14. MFP, LLC Members have been unable to work together to manage the properties owned by MFP, LLC. Defendant has been making unilateral decisions regarding the properties, in violation of the MFP, LLC agreement." (Complaint 13, 14.)
The Complaint also alleges that in May 2018 Plaintiff had filed a prior civil action for partition to force the sale of the real property. ((Complaint 16.) Then in late 2018 Plaintiff caused there to be a vote of the members of MFP, LLC to direct the sell of the real property. (Complaint 17.) The vote passed by a 75-25% vote with 3 members in favor, Defendant opposed. (Complaint 19-20.)
Plaintiff then alleged that:
"22. As a result of the actions described herein, MFP, LLC has been damaged in an amount according to proof and will continue to be damaged if relief is not granted. This action is commenced on behalf of Plaintiff and for the benefit of MFP, LLC, pursuant to Corp. Code§ 800." (Complaint 22.)
The First (and only) Cause of Action is titled "Declaratory Relief" and it incorporates the foregoing allegations. It states, in its entirety:
"24. An actual controversy has arisen and now exists between Plaintiff and Defendants concerning their respective rights and duties in that Defendant, Delmer James McEntyre, protests a vote held between the MFP, LLC members as to three ballot items: (a) Amend the Operating Agreement to remove Section 18.08 which states each member waives a partition action; (b) Sell the 2905 Property and the 2909 Property; and (c) Dissolve MFP, LLC.
25. Plaintiff, Elaine, and Russell all voted "yes" on all three ballot items. As a result, the MFP, LLC majority would like to take action per the votes and amend the operating agreement, sell the MFP, LLC properties, and dissolve MFP, LLC.
26. Plaintiff desires a judicial determination of the validity and enforceability of the vote on all three ballot items.
27. A judicial declaration is necessary and appropriate at this time in order for Plaintiff to enforce the votes, take action on the votes with certainty, and proceed for the benefit of MFP, LLC."
In the Prayer Plaintiff asks for a declaration that the October 2018 vote was valid and enforceable, for an injunction, for damages that MFP, LLC suffered, costs and attorneys fees as well as interst.
On October 24, 2023 this Court (Judge Hill) granted Plaintiff's motion for the appointment of a receiver for MFP, LLC..The Receiver's Status Conference Statement filed April 3, 2024 states:
"On August 23, 2021 this Court made and entered its order ... appointing the Receiver ... for defendant McEntyre Family Properties LLC (the "LLC") and all of its assets. Pursuant to the ... Order Appointing Receiver, the Receiver took possession of the LLC's assets, including the LLC's real property located at 2509 & 2909 N. Sepulveda Boulevard, Manhattan Beach, California (the "Real Property"). As provided in ... the Order Appointing Receiver, the Receiver listed the Real Property for sale with a real estate broker. The Receiver accepted an offer to purchase the Real Property for $4,415,000. The Court, by order filed May 8, 2023, confirmed the sale of the Real Property. The sale closed on July 10, 2023 and resulted in the Receiver receiving net proceeds of $4,176,904.74.
Now that the Real Property has been sold, the Receiver's administration of the assets of the LLC is largely complete. The parties to this action are the members of the LLC and the Receiver desires promptly to distribute the funds he is holding to the members entitled thereto and to windup the receivership. However, the Receiver is aware that certain of the parties to this action have or may assert claims against the LLC." (Report pg. 1:21-2:6.)
Defendant seeks summary judgment on the basis that the dispute alleged in the First Amended Complaint is now moot. The properties have been sold. The LLC is being controlled by the receiver who is winding it up.
In a nutshell, Plaintiff opposes the Motion by noting that the action is a derivative action and she still claims damages on behalf of MFP, LLC. (See FAC 22 "As a result of the actions described herein, MFP, LLC has been damaged in an amount according to proof and will continue to be damaged if relief is not granted", Prayer 3.)
It appears that both parties are correct. The single cause of action for declaratory relief appears to be moot, and Defendant is entitled to summary judgment on that claim. There is no need for the Court to declare anything any longer. However, Plaintiff's FAC vaguely references damages and prays for damages. However, complicating that claim for damages for the LLC is the fact that the Court appointed a receiver to take control of all the assets of the LLC. It appears that the receiver, not Plaintiff, is entitled to assert claims on behalf of MFP, LLC. However this issue has not been briefed or otherwise addressed in the papers by both sides.
The Court requests that the parties address at the hearing the issue of the claim for damages for the LLC that appears to be asserted in the FAC. What is the nature of the damages asserted? No meaningful allegation is contained in the FAC. Since the claim is derivative, and hence is asserted for MFP, LLC, who is entitled to assert that claim given the Order appointing the receiver? Should the Court grant Plaintiff leave to file a Second Amended Complaint requiring that a pleading with specificity identifying each and every claimed type of damages be asserted. A mere statement of having suffered damages would not suffice.
Ruling
GEORGE CHIH-LUN YU ET AL VS. MART ALBERT HAITJEMA ET AL
Jul 16, 2024 |
CGC23607795
Real Property/Housing Court Law and Motion Calendar for July 16, 2024 line 3. DEFENDANT CARUZOS ROOFING LLC MOTION FOR WITHDRAWAL OF ATTORNEY OF RECORD is GRANTED. No opposition filed. Counsel to prepare an order. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.
Ruling
FRANKLIN vs BANK OF AMERICA, N.,A.
Jul 16, 2024 |
CVRI2402331
DEMURRER ON COMPLAINT FOR
FRANKLIN VS BANK OF OTHER REAL PROPERTY (OVER
CVRI2402331
AMERICA, N.,A. $35,000) OF JAMILA M. FRANKLIN BY
BANK OF AMERICA, N.,A.
Tentative Ruling: Hearing continued to 7/30/24.
Preview
Way E-FILE Date Filed 7/24/2023 4:13 PM Superior Court - Worcester Docket Numbef ge COMMONWEALTH OF MASSACHUSETTS WORCESTER, ss. SUPERIOR COURT | No. vO Qa MATHEW OFTEN, ANDREW P JEFFERSON, ANN MARIE FOLEY, MARK ALIMO, RAYMOND MEAD, as they are MEMBERS OF THE SELECT BOARD OF THE TOWN OF GRAFTON, Plaintiff, Vv. BRIAN WALLER, WILLIAM MCCUSKER, KAY REED, PETER ADAMS, WILLIAM YEOMANS, and JIFFY THOMAS, as they are MEMBERS OF THE GRAFTON ZONING BOARD OF APPEALS and NICHOLAS CAPMAN, Defendants. ly COMPLAINT Nature of the Action This is an appeal, pursuant to G.L. c. 40A, § 17 from a constructive approval by the Defendant Town of Grafton Zoning Board of.Appealsjand its above-named Members (collectively, the “Board”) filed by Defendant/Nicholas Capman (the “Applicant”) with the Grafton Town Clerk on July 5, 2623 (the “Constructive Approval”). A copy of the Notice of Constructive Approval is attached hereto as pl Exhibit A. | The Constructive Approval asserts that the ZBA failed to act within the prescribed time on the Defendant Capman’s application for aVarianee (“Appliction”) after ha Date Filed 7/24/2023 4:13 PM Superior Court - Worcester Docket Number, Capman requested an extension of time due to unavailability for the ZBA’s next scheduled meeting. The Application relates to Capman’s real property located at 3 Bridle Ridge Drive, Grafton, MA (the “Property”), at which Capman intentionally had an ! outdoor pool installed within the required rear yard set-back as set forth in Grafton’s Zoning By Law (“ZBL”). 1 Parties t Plaintiff Mathew Often is the Chair and a Member of the Grafton Select Board (“the Board”) with a mailing address of 79 Old Westboro Ra, North Grafton, MA 01536. I Plaintiff Andrew Jefferson is a Member of the Board with |a mailing address of 31 Wesson St. North Grafton, MA 01536. I Plaintiff Ann Marie Foley is a Member of the Board with ® mailing address of 45 South St. Grafton, MA 01519, mn Plaintiff Mark Alimo is a Member of the Board with! al mailing address of 16 ' Christopher Dr. Grafton, MA 01519. Plaintiff Raymond Mead is a Member of the Board wit a mailing address of 217 | Brigham Hill Rd, North Grafton, MA 01536. | i The Board is a duly organized and appointed municipal agency of the Town of 1 L Grafton, with its principal office at Town Hall at 30Providence Road, Grafton Massachusetts 01519. 10 Defendant Brian Waller the Chair and a Member of the Grafton Zoning Board of Appeals (“ZBA”) with a mailing address of 130 Keith Hill Rd., South Grafton, MA 01560. Date Filed 7/24/2023 4:13 PM Superior Court - Worcester Docket Number iL Defendant William McCusker is a Member of the ZBA with a mailing address of 40 Blanchard Rd. Grafton, MA 01519. 12 Defendant Kay Reed is a Member of the ZBA with!a' mailing address of 7 Nantucket Pl, Grafton, MA 01519. ' 13. Defendant Peter Adams is a Member of the ZBA with a mailing address of 100 Brigham Hill Rd. Grafton, MA 01519. 1 14. Defendant William Yoemans is a Member of the ZBA with a mailing address of ny 297 Providence Rd., South Grafton, MA 01560. | 15. Defendant Jiffy Thomas is an Alternate Member of the ZBA with a mailing address of 27 Valley View Drive, N. Grafton, MA 01 538. | 16 The ZBA is a duly organized and appointed municipal agency of the Town of 1 | Grafton, with its principal office at Town Hall at 30 Providence Road, Grafton Massachusetts 01519. ' ' 17. Defendant Nicholas Capman is the Applicant for a Variance with an address of 3 | Bridle Ridge Drive, Grafton MA 01519, Statement of the Facts ' 18. The real estate known and numbered 3 Bridle Ridge Drive 1 (‘the Premises”) consists of a 52,627 sq, ft. (1.208 acre) lot improved with, | single family home. 19. Pursuant to the Grafton Zoning By Law (“ZBL”), the préntises is located in an R 40 zone. 1 20. On or about January 25, 2021, Defendant Capman or his,agent submitted an application (“the January 21 Application”) with the Building Department to jt construct accessory structures on the Premises, fo wit, apool and a pool Date Filed 7/24/2023 4:13 PM ‘Superior Court - Worcester Docket Number’ house/gazebo. 21 The January 21 Application had attached thereto proposed a plan for the 1 accessory structures dated January 14, 2021. ' 22. After review of the January 21 Application and plan, the Building Department hy determined that the proposed accessory structures violated the ZBL’s requirement ' that all structures be located a minimum of 15-feet from the side-yard property boundary line. I 23 The Building Department notified Defendant Capman obits determination on or ! about February 23, 2021. 1 1 24. Thereafter, on or about July 15, 2021, Defendant Capman or his agent submitted a new application (“the July 21 Application”) with the Building Department to construct the same accessory structures on the Premises. 25 The July 2021 Application had attached thereto a revised proposed plan dated July 2021 for the accessory structures that depicted them located outside of the ry 15- foot side-yard set-back in compliance with the ZBL. ' 26 As a result, on or about July 28, 2021, the Building Depatinent issued to Defendant Capman two Building Permits, one for the poo | (P0-21-29) and one for other the pool house/gazebo (BP-21-516). 1 27 Thereafter, Defendant Capman caused the pool and gazebo to be constructed. 28, Thereafter, Defendant Capman or his agent filed anas-built plan with the Building Department that depicted both the pool and the! gazebo within the 15- foot side-yard set-back. | 29. After review of the as-built plan, by letter dated March 3 2023, the Building | Date Filed 7/24/2023 4:13 PM. Superior Court - Worcester Docket Number Department notified Defendant Capman that the pool and gazebo are located within the set-back and were not constructed in accordance with the approved documents submitted to the Town. 30. The March 3, 3023 letter ordered Defendant Capman to come into compliance with the ZBL. 1i 31 On or about March 13, 2023, Defedant Capman, through ‘ounsel, c filed an |ne application for a variance (“Variance Application”), acknowledging that the pool was constructed only 7.5 feet from the side yard boundary ine, and that the gazebo was constructed only 13.1 feet from the same boundary. it 32 The Variance Application asserted that the “unique topography of Mr. Capman’s property and the location of his home on the property isbuch that placement of the pool and gazebo area 15 feet or more from the side property line or to the rear of the home would pose a substantial hardship and diminish the value of these accessory structures.” 33. At its meeting held on April 27, 2023, the ZBA opened the public hearing on the Variance Application. 34, ZBA members noted that the shape of the Property “is not! unique” and that “[soil. 3 1 shape, and topography do not apply in this instance.” 35, A member of the ZBA repeatedly stated that, in his opinion, the Premises did not “come even close” to meeting the standard for a variance. , 36 Defendant Capman, through counsel, thereafter requested that the ZBA continue the hearing to June 15, 2023. 37. The ZBA informed the Defendant that if he needed additional time beyond June Date Filed 7/24/2023 4:13 PM Superior Court - Worcester Docket Number" 15, he should request same from the ZBA administrator. 38. On May 23, 2023, defendant, through counsel sent an email to the ZBA administrator stating: fa Following up on [the Variance Application], we are,exploring other options for this property. While we do that, we would' like to keep the | ZBA application open and will grant continuances for the time for a decision, 39. Through counsel, Defendant Chapman then submitted a fuer written request to continue the hearing. I | 40. By email dated July 5, 2023, the ZBA Administrator informed Defendant Capman’s counsel that the ZBA could hold a further hearing on the Variance Application at its meeting on July 27, 2023. At 4l Later that same day, July 5, 2023, the Defendant through counsel filed a Notice of Constructive Approval. Ma Count I -- Constructive Approval '' 42. The Plaintiffs repeat and reallege the allegations in all above paragraphs and incorporate the same herein by reference. , 43 The accessory structures were constructed in violation ofithe ZBL’s set back |t || | requirements. 44. Although Defendant Capman filed a VarianceApplicatioti,|he failed to establish that the Property meets the statutory requirements for the felief requested. 45 Thus Defendant Capman has not and can not establish that| he is meets the legal requirements for a variance pursuant to G.L. c. 40A, § 17, 46 The Applicant is therefore not entitled to a variance. 47. The Board is aggrieved by the Notice of Constructive Approval because the Date Filed 7/24/2023 4:13 PM Superior Court- Worcester Docket Number Defendant did not and can not establish that he is eligible for a variance under the t General Laws i, WHEREFORE, the Plaintiffs respectfully request that this Court énter judgment annulling the Constructive Approval. Prayer for Relief I; For the reasons set forth above, the Plaintiffs pray that this Honorable Court grant the following relief; I Order that the Constructive Approval be annulled: | Determine that Constructive Approval is arbitrary mn capricious, erroneous, and/or in excess of the authority of the ZBA. Award the Plaintiff its costs and attorney’s fees. Enter such other relief as may be just and appropriate. it |: ' Plaintiffs, The Town ofGrafton! Date HN, l 123 i THA elk mer, BBO No. 629147 ‘Town Counsel Kremer Law, LLC! 9 Damonmill Squaie, Suite 4A4 Concord, Massachusetts 01742 ginny @kremerlaw.tiet | ra it Date Filed 7/24/2023 4:13 PM ‘Superior Court - Worcester Docket Number - RECEIVER bs 4OLCRs SEARTY 4 Date: July5, 2023 To Kandy Lavallee, Town Clerk ‘93 JUL -5 PHU 06 Town of Grafton 30 Providence Road | Grafton, MA OF519 A TRUE COPY ATTEST From: Brian R. Falk, Esq. Mirick O'Connell 100 Front Street oq TOWN CLERK: ‘ 1 1 Worcester, MA 01608 RE: NOTICE OF CONSTRUCTIVE APPROVAL |: ZBA Case #894, Variance Application for 3 Bridle Ridge Drive, Grafton CERTIFICATE OF SERVICE AND MAILING I, Brian R. Falk, counsel for the Petitioner, Nicholas Capman, hereby, certify that a true copy of the Notice of Constructive Approval, dated July 5, 2023 (the “Clerk’s'Notice”), concerning the Petitioner seeking constructive approval of the above-referenced Variance application case, was delivered in hand to (a) the Grafton Town Clerk, and (b) theGrafton Planning Board, in accordance with Massachusetts General Laws Chapter 40A, § 15,rhe on July 5, 2023. I further certify that a true copy of the Notice of Constructive Approval, dated July 5, 2023 (the “Notice to Interested Parties”), concerning the Petitioner seeking constructive approval of the above-referenced Variance application case, was served upon allParties ini Interest, as defined under Massachusetts General Laws Chapter 40A, § 11, by certified mal postage prepaid, on July 5, 2023, and include the following persons and entities: 4 All persons and entities set forth on the Assessors Certified Li: | of Abutters, attached 2. Exhibit A; | The Planning Boards of the following abutting cities and towns: (a) Worcester; (b) Shrewsbury; (c) Westborough; (d) Upton; (e) Northbridge; ® Sutton; and (g) Millbury. Copies of the Clerk’s Notice and Notice to Interested Parties, bothwithout exhibits, are attached hereto respectively as Exhibit B and Exhiblt C for reference Purposes only. Signed under the penalties of perjury on this Sth day of July 2023 ' hy \ eS Brian R- Falk, Esq. {Client Matter 27223100002/A8359493.000%} Date Filed 7/24/2023 4:13 PM Superior Court - Worcester Docket Numbér - Exhibit A - Abutters List 1 L, (Client Matter 27223/00002/48356493.00Cx) Date Filed 7/24/2023 4:13 PM SuperiorCourt- Worcester Cocket Number Sto GR. AtRyDQ % RECENWF % TOWN OF GRAFTON 1 AY GRAFTON MEMORIAL MUNICIPAL CENTER Ax xB FER ts Oz