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Date Filed 1/18/2024 9:39 AM
Superior Court - Plymouth
Docket Number
COMMONWEALTH OF MASSACHUSETTS
PLYMOUTH, ss. SUPERIOR COURT DEPT.
OF THE TRIAL COURT
PAUL BOUCHER, in his capacity
as the BUILDING COMMISSIONER AND
ZONING ENFORCEMENT OFFICER
FOR THE TOWN OF ROCHESTER, Civil Action No.
Plaintiff,
Vv.
CHRISTINE R. MURPHY AND
ROBERT M. MURPHY,
Defendants.
VERIFIED COMPLAINT
Plaintiff Paul Boucher, in his capacity as the Building Commissioner and
Zoning Enforcement Officer for the Town of Rochester, seeks injunctive relief to
eradicate violations of the Town of Rochester Zoning By-laws (the “By-laws”) on
property located at 19 County Road in Rochester, Massachusetts.
PARTIES
1. Paul Boucher is the Building Commissioner and Zoning Enforcement Officer for
the Town of Rochester, with an office located at 37 Marion Road, Rochester,
Massachusetts 02770.
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Superior Court - Plymouth
Docket Number
Per Chapter 18.24 of the By-laws, the By-laws are enforced by the Building
Commissioner. A true and accurate copy of the By-laws is attached as Exhibit
A
Defendants Christine R. Murphy and Robert M. Murphy are owners of property
located at 19 County Road in Rochester, Massachusetts (the “Property”), by deed
dated October 18, 2018, and recorded in the Plymouth County Registry of Deeds
at Book 50425, Page 205.
THE PROPERTY
The Property is located in the Agricultural-Residential zoning district under the
By-laws.
The Property is improved with a single-family residence and contains
approximately 3.31 acres of land.
BACKGROUND
The Defendants sought and received a business certificate from the Town Clerk
for a trucking business named “RN Trucking” with the Property listed as the
business address. See Exhibit B. The certificate issued on August 19, 2020. Id.
RN, Trucking, Inc. is registered with the Secretary of Commonwealth’s
Corporations Division with the Property listed as the principal office. The
Articles of Organization state that RN, Trucking, Inc. is engaged in “material,
hauling.” See Exhibit C.
By decision filed with the Town Clerk on March 22, 2023, the Rochester Zoning
Board of Appeals (the “ZBA”), denied the Defendants’ petition for a variance to
Date Filed 1/18/2024 9:39 AM
Superior Court - Plymouth
Docket Number
construct an 80-foot by 204-foot steel garage with 10 separate bays on the
Property. See Exhibit D.
By a separate decision also filed with the Town Clerk on March 22, 2023, the
ZBA denied the Defendants’ petition for a special permit “to rent a few bays of a
proposed 80-foot by 204-foot steel building with 10 separate bays, and to allow a
trucking establishment on the [Property] with up to three (3) employees under
Chapter 20.40, Section F.6 of the [By-laws].” See Exhibit E.
10. The Defendants did not appeal the ZBA’s decisions on the variance and special
permit petitions.
11. By letter dated March 21, 2028, counsel representing several abutters to the
Property filed a request for zoning enforcement with the Building Commissioner
(the “First Request”). See Exhibit F.
12. The First Request alleged that the Defendants were conducting commercial and
business uses at the Property in violation of the By-laws.
13.On April 10, 2023, the Building Commissioner sent a Notice of Violation/Cease
and Desist (the “Order”) to the Defendants notifying them that they were in
violation of the By-laws for the operation of a trucking business and stockpiling
of construction materials at the Property. See Exhibit G. The Building
Commissioner ordered the Defendants to cease and desist use of the Property for
commercial activity. Id.
1 Because there is a P.O. Box for the Property, the U.S. Postal Service returned the mailed Notice of
Violation to the Building Commissioner. The Notice of Violation was resent to the P.O. Box on April
25, 2023.
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14. The Defendants untimely appealed the Order to the ZBA.
15. By decision filed with the Town Clerk on July 24, 2023, the ZBA determined that
it did not have jurisdiction over the appeal because it was not timely filed. See
Exhibit H.
16.The Defendants did not appeal the ZBA’s July 24, 2023 decision.
17.The Building Commissioner’s Order that the Defendants cease and desist
commercial activity on the Property remains in effect as a result of the ZBA’s
July 24, 2023 decision.
18.On December 1, 2023, two abutters to the Property filed requests for zoning
enforcement with the Building Commissioner (the “Second Request”). See
Exhibit I.
19. The Second Request alleged that the Defendants are continuing to engage in
commercial activity on the Property, including the storing and operating of
eighteen wheelers from the Property.
20. One of the abutters submitted photos and video to the Building Commissioner
showing eighteen wheelers approaching and leaving the Property on separate
dates. The photos are attached as Exhibit J.
21.The Second Request further alleged that eighteen wheelers are power washed at
the Property.
22.The Building Commissioner drove by the Property on December 14 and 15, 2023,
and January 2, 2024, and observed parked trucks and equipment on the
Property.
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23. Chapter 19.30 of the By-laws defines “Home Occupation” as “an occupation or
profession which is customarily carried on in a dwelling or in a building or other
structure accessory to a dwelling and is carried on by a member of the resident
family and is clearly incidental and secondary to the use of the dwelling unit for
residential purposes.”
24. Pursuant to Chapter 20.40, Section E.4, the following home occupation, trade,
and professional occupation uses are permitted incidental to residential use:
a. Use of a room or rooms in a dwelling for home occupations conducted
by the resident occupant only; such as dressmaking, home cooking,
millinery, provided that there not be compensated employment of more
than one employee, exclusive of family members living on the
premises.
Use of the premises or structure thereon in connection with his trade
conducted primarily away from his home by a resident tradesman such
as carpenter, electrician, painter, plumber, mason, furnace repairman;
provided that there not be compensated employment of more than one
employee, exclusive of family members living on the premises.
Use of premises in professional occupation such as physician, dentist,
hairdresser, barber, attorney, draftsman, engineer, accountant and
real estate; provided that there not be compensated employment of
more than one employee, exclusive of family members living on the
premises.
25. Chapter 20.40, Section E.8 only allows the storage of one unoccupied trailer on a
property in the Agricultural Residential district, either in an accessory building
or on a lot.
26. As evidenced by the Second Request and associated photographs, the Defendants
continue to use the Property for commercial and business purposes in violation
of the By-laws and the Building Commissioner’s Order.
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Superior Court - Plymouth
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CountI
Permanent Injunction Pursuant to M.G.L. c.40A, §7 and the By-laws
27.The Plaintiff hereby incorporates by reference Paragraphs 1-26 of the Verified
Complaint as if fully set forth herein.
28. The Defendants are operating a commercial trucking business on the Property in
violation of the By-laws.
29. The Plaintiff attempted to enforce the By-laws with the issuance of the Order,
which remains in effect.
30. The Defendants’ continued operation of a commercial trucking business on the
Property in violation of the By-laws and the Plaintiff's Order is a detriment to
the surrounding residential neighborhood, as evidenced by abutters’ repeated
filing of complaints for zoning enforcement.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Paul Boucher, in his capacity as the Building
Commissioner and Zoning Enforcement Officer for the Town of Rochester,
respectfully requests that the Court grant the following relief:
1. Enter a permanent injunction ordering the Defendants to cease and desist
all use of the Property not allowed under the Rochester Zoning By-laws;
2. Award the Plaintiff his reasonable attorneys’ fees and costs; and
8. Grant such other and further relief as the Court deems just and equitable.
Date Filed 1/18/2024 9:39 AM
Superior Court - Plymouth
Docket Number
January 17, 2024 Respectfully submitted,
PLAINTIFF,
Paul Boucher, in his capacity
as the Building Commissioner and
Zoning Enforcement Officer for the
Town of Rochester
By his attorneys,
LEA Dla.
Christopher H. Heep, BBO# 661618 _
Maurica D. Miller, BBO# 693445
Harrington Heep LLP
40 Grove Street, Suite 190
Wellesley, MA 02482
617-489-1600
cheep@harringtonheep.com
mmiller@harringtonheep.com
Date Filed 1/18/2024 9:39 AM
Superior Court - Plymouth
Docket Number
VERIFICATION
I, Paul Boucher, affirm that I am the plaintiff in this matter, that I have read the
allegations in the Complaint, and that they are true to the best of my knowledge,
information, and belief.
Signed under the penalties of perjury this /7th day of January, 2024.
Paul Boucher
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Date Filed 1/18/2024 9:39 AM Superior Court - Plymouth Docket Number COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, ss. SUPERIOR COURT DEPT. OF THE TRIAL COURT PAUL BOUCHER, in his capacity as the BUILDING COMMISSIONER AND ZONING ENFORCEMENT OFFICER FOR THE TOWN OF ROCHESTER, Civil Action No. Plaintiff, Vv. CHRISTINE R. MURPHY AND ROBERT M. MURPHY, Defendants. VERIFIED COMPLAINT Plaintiff Paul Boucher, in his capacity as the Building Commissioner and Zoning Enforcement Officer for the Town of Rochester, seeks injunctive relief to eradicate violations of the Town of Rochester Zoning By-laws (the “By-laws”) on property located at 19 County Road in Rochester, Massachusetts. PARTIES 1. Paul Boucher is the Building Commissioner and Zoning Enforcement Officer for the Town of Rochester, with an office located at 37 Marion Road, Rochester, Massachusetts 02770. Date Filed 1/18/2024 9:39 AM Superior Court - Plymouth Docket Number Per Chapter 18.24 of the By-laws, the By-laws are enforced by the Building Commissioner. A true and accurate copy of the By-laws is attached as Exhibit A Defendants Christine R. Murphy and Robert M. Murphy are owners of property located at 19 County Road in Rochester, Massachusetts (the “Property”), by deed dated October 18, 2018, and recorded in the Plymouth County Registry of Deeds at Book 50425, Page 205. THE PROPERTY The Property is located in the Agricultural-Residential zoning district under the By-laws. The Property is improved with a single-family residence and contains approximately 3.31 acres of land. BACKGROUND The Defendants sought and received a business certificate from the Town Clerk for a trucking business named “RN Trucking” with the Property listed as the business address. See Exhibit B. The certificate issued on August 19, 2020. Id. RN, Trucking, Inc. is registered with the Secretary of Commonwealth’s Corporations Division with the Property listed as the principal office. The Articles of Organization state that RN, Trucking, Inc. is engaged in “material, hauling.” See Exhibit C. By decision filed with the Town Clerk on March 22, 2023, the Rochester Zoning Board of Appeals (the “ZBA”), denied the Defendants’ petition for a variance to Date Filed 1/18/2024 9:39 AM Superior Court - Plymouth Docket Number construct an 80-foot by 204-foot steel garage with 10 separate bays on the Property. See Exhibit D. By a separate decision also filed with the Town Clerk on March 22, 2023, the ZBA denied the Defendants’ petition for a special permit “to rent a few bays of a proposed 80-foot by 204-foot steel building with 10 separate bays, and to allow a trucking establishment on the [Property] with up to three (3) employees under Chapter 20.40, Section F.6 of the [By-laws].” See Exhibit E. 10. The Defendants did not appeal the ZBA’s decisions on the variance and special permit petitions. 11. By letter dated March 21, 2028, counsel representing several abutters to the Property filed a request for zoning enforcement with the Building Commissioner (the “First Request”). See Exhibit F. 12. The First Request alleged that the Defendants were conducting commercial and business uses at the Property in violation of the By-laws. 13.On April 10, 2023, the Building Commissioner sent a Notice of Violation/Cease and Desist (the “Order”) to the Defendants notifying them that they were in violation of the By-laws for the operation of a trucking business and stockpiling of construction materials at the Property. See Exhibit G. The Building Commissioner ordered the Defendants to cease and desist use of the Property for commercial activity. Id. 1 Because there is a P.O. Box for the Property, the U.S. Postal Service returned the mailed Notice of Violation to the Building Commissioner. The Notice of Violation was resent to the P.O. Box on April 25, 2023. Date Filed 1/18/2024 9:39 AM Superior Court - Plymouth Docket Number 14. The Defendants untimely appealed the Order to the ZBA. 15. By decision filed with the Town Clerk on July 24, 2023, the ZBA determined that it did not have jurisdiction over the appeal because it was not timely filed. See Exhibit H. 16.The Defendants did not appeal the ZBA’s July 24, 2023 decision. 17.The Building Commissioner’s Order that the Defendants cease and desist commercial activity on the Property remains in effect as a result of the ZBA’s July 24, 2023 decision. 18.On December 1, 2023, two abutters to the Property filed requests for zoning enforcement with the Building Commissioner (the “Second Request”). See Exhibit I. 19. The Second Request alleged that the Defendants are continuing to engage in commercial activity on the Property, including the storing and operating of eighteen wheelers from the Property. 20. One of the abutters submitted photos and video to the Building Commissioner showing eighteen wheelers approaching and leaving the Property on separate dates. The photos are attached as Exhibit J. 21.The Second Request further alleged that eighteen wheelers are power washed at the Property. 22.The Building Commissioner drove by the Property on December 14 and 15, 2023, and January 2, 2024, and observed parked trucks and equipment on the Property. Date Filed 1/18/2024 9:39 AM Superior Court - Plymouth Docket Number 23. Chapter 19.30 of the By-laws defines “Home Occupation” as “an occupation or profession which is customarily carried on in a dwelling or in a building or other structure accessory to a dwelling and is carried on by a member of the resident family and is clearly incidental and secondary to the use of the dwelling unit for residential purposes.” 24. Pursuant to Chapter 20.40, Section E.4, the following home occupation, trade, and professional occupation uses are permitted incidental to residential use: a. Use of a room or rooms in a dwelling for home occupations conducted by the resident occupant only; such as dressmaking, home cooking, millinery, provided that there not be compensated employment of more than one employee, exclusive of family members living on the premises. Use of the premises or structure thereon in connection with his trade conducted primarily away from his home by a resident tradesman such as carpenter, electrician, painter, plumber, mason, furnace repairman; provided that there not be compensated employment of more than one employee, exclusive of family members living on the premises. Use of premises in professional occupation such as physician, dentist, hairdresser, barber, attorney, draftsman, engineer, accountant and real estate; provided that there not be compensated employment of more than one employee, exclusive of family members living on the premises. 25. Chapter 20.40, Section E.8 only allows the storage of one unoccupied trailer on a property in the Agricultural Residential district, either in an accessory building or on a lot. 26. As evidenced by the Second Request and associated photographs, the Defendants continue to use the Property for commercial and business purposes in violation of the By-laws and the Building Commissioner’s Order. Date Filed 1/18/2024 9:39 AM Superior Court - Plymouth Docket Number CountI Permanent Injunction Pursuant to M.G.L. c.40A, §7 and the By-laws 27.The Plaintiff hereby incorporates by reference Paragraphs 1-26 of the Verified Complaint as if fully set forth herein. 28. The Defendants are operating a commercial trucking business on the Property in violation of the By-laws. 29. The Plaintiff attempted to enforce the By-laws with the issuance of the Order, which remains in effect. 30. The Defendants’ continued operation of a commercial trucking business on the Property in violation of the By-laws and the Plaintiff's Order is a detriment to the surrounding residential neighborhood, as evidenced by abutters’ repeated filing of complaints for zoning enforcement. PRAYER FOR RELIEF WHEREFORE, Plaintiff Paul Boucher, in his capacity as the Building Commissioner and Zoning Enforcement Officer for the Town of Rochester, respectfully requests that the Court grant the following relief: 1. Enter a permanent injunction ordering the Defendants to cease and desist all use of the Property not allowed under the Rochester Zoning By-laws; 2. Award the Plaintiff his reasonable attorneys’ fees and costs; and 8. Grant such other and further relief as the Court deems just and equitable. Date Filed 1/18/2024 9:39 AM Superior Court - Plymouth Docket Number January 17, 2024 Respectfully submitted, PLAINTIFF, Paul Boucher, in his capacity as the Building Commissioner and Zoning Enforcement Officer for the Town of Rochester By his attorneys, LEA Dla. Christopher H. Heep, BBO# 661618 _ Maurica D. Miller, BBO# 693445 Harrington Heep LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 617-489-1600 cheep@harringtonheep.com mmiller@harringtonheep.com Date Filed 1/18/2024 9:39 AM Superior Court - Plymouth Docket Number VERIFICATION I, Paul Boucher, affirm that I am the plaintiff in this matter, that I have read the allegations in the Complaint, and that they are true to the best of my knowledge, information, and belief. Signed under the penalties of perjury this /7th day of January, 2024. Paul Boucher