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COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
FRANKLIN, ss. CIVIL ACTION NO. 2078CV00019
RICHARD SHERIDAN, PERSONAL
REPRESENTATIVE FOR THE ESTATE
OF JOHN B. AVILA AND AS TRUSTEE,
475 EAST MAIN STREET AVILA
REALTY TRUST,
Plaintiffs
FILED
V.
FEB 2 2024
-
TO‘VN OF ORANGE, BOARD OF
HEALTH AND BUILDING INSPECTOR, , - _ _
Defendants
CONSOLIDATED STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
'
AND
IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGEMENT
-
Defendants’ Statement of Undisputed Material Facts
1. In 2011, through the Plaintiff 475 East Main Street Avila Realty (“the Trust”),
‘
former Plaintiff John B. Avila
took up residence in a ?ve-bedroom farmhouse on Route 2A
between Orange and Athol, about one mile from the center of town. The address of Mr. Avila’s
residence was 475 East Main Street, Orange, MA. See Veri?ed Complaint at 111;see also Trust
documents for 475 East Main Street, Avila Realty Trust, submitted herewith as Exhibit 1.
Not disputed.
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_2. The Trust was declared on April 29, 2011. Exhibit 1.
Not disputed.
3. The Trust acquired _475 East Main Street in Orange on April 29, 2011 for
$100,000.00. Exhibit 1.
Notdisputed.
4. The original trustee was a man named Lawrence Ardito. Mr. Avila was the sole
bene?ciary of the Trust. Exhibit 1.
Not disputed.
5. The Trust stated that, in the event of the resignation of the original trustee, the
bene?ciary(Mr. Avila) would become the successor trustee. Exhibit 1.
Not disputed.
6. On August 10, 2015, Mr. Ardito resigned as trustee and Mr. Avila was appointed.
Mr. Avila signedthe Trust documentation on August 31, 2015. See Resignation of Trustee
documents, submitted herewith as Exhibit 2.
Not disputed.
7._ Not long after Mr. Avila moved in to the 475 East Main Street residence, his front
porch, front and side lawns, driveway and backyard barn areas became covered with debris trash, —
vehicles, vehicle parts, tarps, broken furniture, appliances, ?xtures, and the like littered the
property and spilled out onto the abutting sidewalk. See certain photos of property marked as
exhibits to the Depositionof Plaintiffs’ Personal Representative Richard Sheridan (“Sheridan
Depo.”), a sampling of which are submitted as Exhibit 3.1
DISPUTED.
andOctober 18,
' Mr.
Sheridan’s deposition was taken over the course of three days —
August 10, September 2]
2023. Testimony' IS consolidated herein at Exhibit 4.
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i 8. Several of Mr. Avila’s close friends —
including Mr. Sheridan, the personal
representative for Mr. Avila’s estate in this case —
considered Mr. Avila to be a hoarder. See
transcript of Sheridan Depo, submitted herewith as Exhibit4, at 315:14—316:6. Mr. Sheridan
also reported that Mr. Avila suffered from a severe head injury caused by a motorcycle accident
lwhich
may have affected his cognitive functions. Exhibit 4_at 174:13-17623.
Mr. Sheridan
estimated at his deposition that at least one-third of Plaintiffs’ 1.26-acre lot was “cluttered” with
“things, items, haphazardly on the property” and
he had never seen a similar property in the Town.
Exhibit 4 at 32:22-34z4.
Not disputed.
9. By September 2013, the Town was receiving numerous complaints from the public
about
the condition of Mr. Avila’s blighted property and the impact it was having on the safety of
pedestrian traf?c, motor vehicle traf?c, property values and social cohesion. See Order dated
September 12, 2013, submittedherewith as Exhibit 5; see also collection of Town of Orange Police
Reports detailing public complaints, submitted herewith as Exhibit 6.2
DISPUTED.
10._ The Town thereafter served the ?rst of numerous orders, citations or
correspondence directed at the Plaintiffs, each requesting that Plaintiffs remedy said conditions.
See Exhibit 5.
Not disputed.
11. Mr. Avila initially seemed willing to comply with these orders, but never did so.
See letter dated 09/26/2013, herewith
submitted as Exhibit 7.3 Over and over again, Mr. Avila
ignored, protested, or simply refused to comply with these orders, which cited, among other things,
2 Marked as Exhibit 7 to the Sheridan Depo.
3
Marked as Exhibit 8 to the Sheridan Depo.
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violations of the State Sanitary Code, the Building Code, and numerous Town By-laws relating to
debris, zoning and construction on Plaintiffs’ property. See generally Exhibits 5-15, All the while,
the condition of his property worsened.
DISPUTED.
12. On December 14, 2015, the Town was compelled to initiate in the
proceedings
WesternDivision Housing Court, leading to a course of litigation that would see the
Town
obtain
multiple temporary restraining orders, obtain a summary judgment order, then obtain a speci?c
order enforcing the summary judgment order, then obtain a speci?c order enforcing the previous
speci?c order, all in an effort to remediate Plaintiff’s unsafe, blighted property.
SeeApplication
for Temporary Restraining Order dated 12/14/2015 and submitted herewith as Exhibit
16; see also,
generally,
Exhibits 18-27, discussed in?a.
Not disputed.
13. On April 28, 2015, an of?cial of the Orange Board of Health sent correspondence
to the Plaintiffs, informing them that she had conducted a visual inspection
of the property which
revealed violations of the State Sanitary Code. See Exhibit 8.4
Not
disputed.
14. She provided photographs to him taken during the inspection which showed
numerous accumulations of refuse (such as construction debris, miscellaneous scrap metal items,
automotive parts,auto bodies and tires) throughout the property. Exhibit 8.
DISPUTED. Exhibit 8.
4
Marked as Exhibit 9 to the Sheridan Depo.
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i 15. She advised that the Board of Health had received complaints about the conditions
Iof
the property and ordered Plaintiffs to bring the property into compliance with 105 CMR 410.602
(maintenance of areas free from garbage and rubbish). Exhibit 8.
Not disputed that she so advised.
16. She also noted that the property wasin violation of the Town Bylaw 187-1 (location
restrictions for operating a commercialjunkyard without being duly licensed). Exhibit 8.
Not disputed that she so noted.
17. She ordered that the violations be corrected within 30 days pursuant to 105 CMR
410.830. Failure to comply would result in a ?ne. Each day's failure to comply would constitute
a separate violation pursuant- to 105 CMR 410.910. Exhibit 8.
Not disputed.
18. Also on April 28, 2015, the then-Town Building Commissioner sent a letter to
Plaintiffs regarding several complaints about the accumulation of debris on the property that
violated the Town Zoning Bylaws. See Exhibit 9.5
Not disputed that the letter was sent.
19. Defendant Robert Legare was not the Building Commissioner at that time.
Defendant Legare became Building Commissioner on or about March 2, 2016 and left for a similar
position
in a neighboring town in January 2017. See Answers of Defendant Legare to Plaintiffs”
Interrogatories, dated November 20, 2020 and submitted herewith as Exhibit 17, at Answer to
Interrogatory 1.
Not disputed.
5
Markedas Exhibit 10 to the Sheridan Depo.
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20. The Building Commissioner
had visited the property on April 7, 2015 and taken
photographs that he provided with the letter. He found a violation of Section 3331 of the Town
Zoning Bylaw which requires that contractors' yards must be screened from abutting residential
structures. See Exhibit 9. The Building Commissioner sent
,
another
notice of violation
on June
24,2015 regarding the construction of a fence in violation of Town
Bylaws. See correspondence
dated 06/24/2015 and submitted herewith as Exhibit 10.6
Not diSputedthat the visit was made, photographs taken and correSpondence sent.
21. Plaintiffs were ordered to abate these violations or face ?nes for each offense. Each
day would constitute a separate offense. Exhibits 9-10.
Not disputed.
22. On August 18, 2015, an of?cial of the Orange Board of Health sent a letter to
Mr. Avila based
on inspections she had conducted on April 21, June 5 and August 18 which
showed that the property was still in violation of 105 CMR 410.602 and Bylaw Chapter 187-1for
operating a commercial junkyard without being duly licensed. These violations were to be
corrected
within 30 days. See Exhibit 11.7
sent.
1
Not disputed that letter was
23. The letter was followed by two substantively similar August 19, 2015 letters from
the Building Commissioner. Exhibit 12-13.8
Not disputed.
24. On December 14, 2015, an of?cial of the Town Board of Health ?led an application
for a temporary restraining order with the Housing Court Western Division (Civil Action
5
Marked as Exhibit 11 to the Sheridan Depo.
7 Marked as Exhibit 12 to the Sheridan Depo.
8
Marked as Exhibits 13 and 14 to the Sheridan Depo.
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r#15CV
1,123)(the “2015 Civil Action”) seeking enforcement of her previous orders. It included
photographs taken in December 2015 showing the property condition. See Exhibit 16.
Not disputed.
25. On December 22, 2015, the Housing Court granted the Town’s application and
ordered
Plaintiffs to comply with the correction orders dated April 28 and August 18, 2015, within
30 days. See Order dated 12/22/2015, submittedherewith as Exhibit 18.
Not disputed.
26. In March 2016, the Town Board of Health conducted an inspection of the subject
property along with Defendant Robert Legare, who was the new building inspector. Pursuant to
this inspection,on March 23, 2016, Defendant Legare sent notice to the Plaintiffs that included all
letters that hadbeen sent previously regarding the violations and the abatement orders for storage
trailers being improperly stored,building a fence without a permit,parking requirement
violations
and sales of'motorvehicles and parts without a special permit. Defendant Legare ordered that the
violations becorrected. See 03/23/2016 letter, submitted herewith as Exhibit 15.9
Not disputed that notice(s) were sent.
27. On May 20, 2016, the Town of Orange Board of Health and Building Inspector
Legare filed a Complaint in the Housing Court Western Division in the 2015 Civil Action against
the Plaintiffs. See Complaint submitted herewith as Exhibit 19.
Not disputed.
28. The Town requested an order that the Plaintiffs comply with the enforcement orders
issued by the Board of Health and the Building Departmentand pay appropriate fees. Exhibit ‘19.
Not disputed.
9
Marked as Exhibit 16 to the Sheridan Depo.
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29. The Complaint referenced the April 28, 2015 noticeof violation issued by, the
Board of Health, the April 28, 2015 notice of violation issued by the Building Inspector, the August
18, 2015 notice of violations, the December 14, 2015 Application for TRO seeking enforcement
of the enforcement orders, and the March
23, 2016 notice of violations. Exhibit 19.
Not disputed.
30. The Complaint noted that, on December 18, 2015, the Housing Com't
had ordered
the Plaintiffs tocomply with the Town’s orders dated April 28 and August 18, 2015. Exhibit 19.
Not disputed.
31. The Complaint notedthat the Plaintiffs did not appeal any of the-orders nor did they
comply with them. Exhibit 19.
Not disputed.
32. On February 17, 2017, the Town of Orange Board of Health and Building Inspector
Legare moved for summary judgment in the 2015 Civil' Action and included photographs of the
condition of the property. See Motion for Summary Judgment and Memorandum in Support with
photographic Exhibits C and G dated 2/17/2017, submitted herewith as Exhibit 20.
Not disputed.
33. The Town argued that the Plaintiffs had received numerous notices of violations of
the State Sanitary Code, the Building Code, the Town Bylaws and the Town Zoning Bylaws.
Exhibit 20. The Plaintiffs had also received numerous correction orders for these violations and
had been ordered by the Housing Court on multiple occasions to comply with the correction orders
but had failed to do so. Exhibit 20.
Not disputed that the Town so argued.
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34. The Town asked the Court for (among other things) an order that, if the Plaintiffs
failed to comply with past correction orders within a reasonable time, the Town could enter the
Plaintiffs‘
property and clean it up pursuant to the correction orders. The Town requested that the
Plaintiffs be ordered to pay for the cleanup. Exhibit 20.
Not disputed that the Town so requested.
35. Mr. Avila ?led a cross-motion for summary judgment at the same time.See Avila’ 3
Motion for Summary Judgmentdated 2/ 17/2017, submitted herewith as Exhibit 21.
Not disputed.
.36. On October 19, 2017, the Court (Fein, J.) granted the Town's motion for summary
judgment and denied Mr. Avila’s cross-motion. See Order dated 10/19/2017 and submitted
herewith as Exhibit 22.
Not disputed.
37. The Court concluded that the Plaintiffs had failed to remedy violations of the State
failed
Sanitary Code, the Building Code and the Town Bylaws. In addition, because Plaintiffs
to
appeal the administrative violation of the codes and requiring
notices alleging. corrective
actions,
the Court ruled that those violations were established as a matter of law by operation of
administrative res judicata. Exhibit 22.
DISPUTED. The order speaks for itself.
38. The Court also found that the Plaintiffs were properly served with violationnotices.
Exhibit 22.
DISPUTED. The order speaks for itself.
39. The Court held that the Town was authoriaed
to enter upon the'subject property
with at least 14 days' notice to plaintiffs andtake steps necessary to remediate the State Sanitary
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Code, Building Code and Bylaw violations. The Town was authorized to place a lien upon the
property for the costs associated with the cleanup. Exhibit 22.
Not disputed.
40. The .Town
gave the Plaintiffs until early spring of
2018
to clean up the property.
Pursuant to that arrangement,
on February 12,2018, Plaintiffs were given a 14-daynotice
advising
them thaton March 1, 2018, individuals would walk the Plaintiffs' property and take photographs,
if needed, in order to give the Board of Health a more re?ective estimate of the cost to clean up
the property. See letters dated 12/04/2017and 2/12/2018, submitted herewith as Exhibit 23.'0
Not disputed.
41. Plaintiffs were advised of the identities of the individuals who would be present
and were instructedto list all items that they did not want to be removed. It was Plaintiffs”
responsibility to have those items removed and stored properly prior to the cleanup. Exhibit 23.
42. Plaintiffs responded to this notice by insisting that all items be left untouched. See
Exhibit 24 at 115.
'Notdisputed as to the contents of the advice.
DISPUTED as to allegations of responsibility.
43. On September 7, 2018, the Town ?led a Motion for Speci?c Order of Removal of
All Rubbish, Garbage and Other Refuse (“Motion for Speci?c Order”). See Motion for Speci?c
Order, dated 09/07/2018 and submitted herewith as Exhibit 24.
Not disputed.
n————
1”
Marked as Exhibits 17 and 18 to the Sheridan Depo.
.
i
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44. The Town provided numerous photos taken of Plaintiffs' property on all sides
on
April 3 and 4, 2018 which showed vehicles, tires, furniture, boards, trash bags and the like in
Plaintiffs’ yard. Exhibit 24.
Not disputed.
45. The Town requested that the Court authorize removal of all items depicted in the
photographs. The Town further requested that the Court order Mr. Avila to refrain from impeding
removal of the items pursuant to Judge Fein's order. Exhibit 24.
Not disputed that the Town so requested.
46. On September 21,2018, the Court (Fields,
J.) held a hearing on the Motion for
Speci?c Order. See Order dated 09/24/2018 and submitted herewith as Exhibit 25.
Not disputed.
47. In an order dated September 24, 2018, Judge Fields held that Judge ‘Fein‘s
October
19, 2017 summary judgment order was to remain in effect.Exhibit 25.
Not disputed.
48. Judge Fields stated that the Town could enter the Plaintiffs' property to remediate
~
the violations. He also stated that the Town was authorized to digitally record the enforcement of
the order. Exhibit 25.
Not disputed.
49. On October 29, 2018, the Town attempted to clean the plaintiffs' property, but
Mr. Avila would only allow five trash bags to be removed. Accordingly, on March 6, 2019,
the
Town ?led a Motion to Uphold and Reaf?rm Speci?c Order of Removal of All Rubbish, Garbage
and Other Refuse from the Subject Property (“Motionto Uphold and Reaffirm”). See Motion to
Uphold and Reaf?rm dated 03/6/2019, submitted herewith as Exhibit 26, at page 2, fourth para.
11
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’
7
DISPUTED.
50. The Town requested that the Court uphold and reaf?rm Judge Fields'
September 24, 2018 order authorizing removal of all items depicted in videos and photographs
that the Town provided, as well as additional
items accumulated by Mr. Avila sincetheorder.
Exhibit 26.
Notdisputed that the Town so requested.
51. On March 18,.2019, Judge Fields
issued another order, amended onMarch 20,
2019, authorizing
the Boardof Health to access the Plaintiffs' property to take such steps as
were
necessary to remediate the State Sanitary Code, Building Code and By-Law violations present
at
theproperty. See Order dated 03/20/2019, submitted herewith
as Exhibit 27.
Not disputed.
52. Pursuant to this Order, Mr. Avila was not to interfere with the Town's efforts. If he
did, the police were authorized to remove him from the property during the time of
enforcement.
Exhibit 27. Accordingly, On March 18, 2019, the Town arranged for a 14-day notice of
remediation to be hand-delivered to Mr. Avila by the local police, informing him that the Town
would remediate the property beginning on or about April 2, 2019. See Correspondence dated
03/18/2019 and submitted herewith as Exhibit 33. In this letter, Mr. Avila was explicitly instructed
that “[a]ny items you feel are of value should be removed and properly stored prior to Tuesday,
April 2.” Exhibit 33.
Not disputed.
53. On April 2, 2019, the clean-up started. See generally Exhibit 4 at 72:8-124:16.
Not disputed.
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54. The clean-up included the removal and relocation of cars, trucks, tractortrailer
bodies, truckloads of debris and other waste. Id.
Not disputed that such items were removed/relocated but DISPUTED that the Town
had the authority to do sawwas
a “clean up”.
55. The clean-up started with a professional rubbish removal company ?lling trucks
and dumpsters with debris. 1d.
DISPUTED that everything removed was debris.
56. Clean-up was hampered by ?ooding of the land in front of four trailer chassis,
whichrequired the laying of stone before three of the four trailers could be moved. On April 5,
2019, the ?nal trailerwas moved. Id. at 92:6-101 :2
DISPUTED that there was a ?ood.
57. Mr. Avila was encouraged to use the 3-day weekend to move tools and good car
parts into his garage,
but he did very little. 1d. at 108:9-111:15.
Not disputed.
58. On April 8 and 9, additional debris and vehicles were removed. At the end of the
day, Mr. Avila was told to move everything remaining into his garage and carport, and he was
given 8 days to do 50. 1d. at 111:16-124:16.
DISPUTED that everything removed was debris.
59. On April 10, 2019, Mr. Avila was advised that there would be a ?nal clean up and
remediation on April 17, 2019. See duplicate correspondence dated 03/18/2019 and 04/10/2019
(the letters are identical except for the date, an apparent clerical error —
the 03/18/2019 letter is
stamped by the constable as hand-delivered on 04/10/2019) and submitted
togetherherewith as
Exhibit 34. He was again advised —
by notice hand-delivered by the local police —
that “[t]o be
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clear, this meansallitems you feel are of value should be properly stored under the carport or
garage, ,or removed prior to Wednesday, April 17th.This includes, but is not limited
to: all car
parts, tools, machines,
windows, doors, etc...” Exhibit 34.
Notdisputed that correspondence was sent.
60. By April 17, 2019, no items had been moved. Exhibit 4 at 285: 1-287zl9.
DISPUTED.
61. On that day, more debris was
removed but because
Mr. Avila was confrontational,
all efforts were stopped. Id. at 47922—482:
16.
DISPUTED.
,
62. Mr. Avila was told that he could
keep the remaining items but he hadto move them
undercover. 1d. at 181:15-184z4, 483:5-19. There instances
we'reseveral during the cleanTup
where Mr. Avila was allowed to keep certain items after he objected to having them disposed of.
Exhibit 4 at 172-3 and 552.
Not disputed that he was so told.
63. There was a police presence the entire time. Id. at 292:20-293z2.
Not disputed.
64. On August 16, 2019, Plaintiffs sent correspondence to Defendants, purportedly
pursuant to M.G.L. c. 258, §4, outlining claims Plaintiffs believed they had based on the
remediation of Plaintiffs’ property. Nuisance was not one of them. See correspondence dated
08/16/2019 and submitted herewith as Exhibit 28.
Not disputed.
65. on August 2, 2019, Plaintiffs filed a complaint for in the 2015 Civil
contempt
Action. Plaintiffs alleged that the Town representatives acted knowingly, intentionally and in
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complete disregard of the Housing Court Orders, dated October 19, 2017, September 24, 2018,
March .18,
2019 and March 20, 2019, by removing and destroying Plaintiffs' personal
property
which was not subject to the Orders and which they knew was not subject to the Orders. See
Complaint for Contempt dated 08/02/2019 and submitted herewith as Exhibit 29.
Not disputed.
66. A list of the allegedly improperly taken property —
consisting of 66 items —
was
submitted with the Complaint for Contempt. Exhibit 29.
Not disputed.
67. Plaintiffs' counsel requested that a summons be issued pursuant toMRCP Rule 65.3
directing the Town to appear before the Court for the purpose of determining if the plaintiffs'
allegations were true. Exhibit 29.
Not disputed.
68. On August 6, 2019, the Court (Fields, J.) ordered that no contempt summons would
issue.
See Order dated 08/06/2019, submitted herewith as Exhibit 30.
Not disputed.
69. In September 2017, Mr. Avila sent packages containing plastic rats and cryptic
notes to Town Board of Health of?cials. See Police IncidentReport dated 09/27/2017 and
submitted herewith as Exhibit 31.
Not disputed.
70. On April 21, 2022, two years after ?ling the instant action, Mr. Avila died. See
“Suggestion of Death,” docket entry #7.
Not disputed.
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71. In April 2018, Mr. Avila’s employment as a school bus driver for the Town
of
Orange was terminated after a mother of a female student who rode on Mr. Avila’s school bus
reported to his employer that Mr. Avila was harassing the student and making her feel
See Af?davit
uncomfortable. of Daniel Johnson dated 12/14/2023 and submitted herewith
as
Exhibit 32 at 11111-3;
Exhibit 6 Police Report 4/26/18.
DISPUTED.
72. After Mr. Avila’s employer contacted him and warned him to cease this behavior,
Mr. Avila drove his school bus to the mother’s place of employment, blocked the exits with his
bus and “made a scene.” Exhibit 32 at 114.
DISPUTED.
73. Upon being informed by his boss that he was ?red for disregarding the warning he
was given, Mr. Avila responded “f—you, I was already planning to quit.” Exhibit 32 at 114.
DISPUTED.
74. No employee, of?cer or representative of the Town of Orange was involved in Mr.
.
Avila’s termination. Exhibit 32 at 115.
DISPUTED.
75. At his deposition, Mr. Sheridan testi?ed that he had no information about Mr.
defamation
Avila’s claim. Exhibit 4 at 231:10-13.
Not disputed.
76. At his deposition,
Mr. Sheridan testi?ed that Defendant Legare was not at the
cleanup and he had “no idea” why Defendant Legare was being sued. Exhibit 4 at 491 :9-17.
Not disputed.
16
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77. The Trust sold the residence at 475 East Main Street on or about October6, 2023
for $128,000. Exhibit 4 at 20429-13.
Not disputed.
78. Mr. Sheridan testi?ed that he was not alleging any ultrahazardous
or inappropriate
activity by the professional remediation services used in the April 2019 clean-up. Exhibit
4at
48:7;18-‘489210.
DISPUTED.
79. At his deposition, Mr. Sheridan
acknowledged that Mr. Avila did notpay his real
’estate taxes and that Mr. Sheridan paid them a?er Mr. Avila’s death in order to remove
thelien
andsell the property. Exhibit 4 at 10223-103217,339:11-340:24.
Not disputed.
80. Mr. Sheridan con?rmed at his deposition that calls were made by town of?cials
at
the cleanup toTown Counsel, Donna MacNicol,throughout the process to obtain guidance before
decisions
were made to remove objects from the property. Exhibit 4 at 81:5-82:l7, 168-69, 541.
Not disputed.
81. Mr. Sheridan con?rmed at his deposition that town of?cials repeatedly told
Mr. Avila during the cleanupprocess that he should put things away and they would not be taken.
Exhibit 4 at 182, 483, 533, 535-536.
Not disputed.
82. The Town did not remove all items that were in Avila’s yard and driveway during
the cleanup process. For example, many items were left such as a suit of armor, a picture pump
that Mr. Avila objected to being taken, a Coca Cola machine, an unregistered truck that had
‘
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belonged to Avila’slate father, and sound equipment Avila claimed was valuable. Exhibit 4 at
172,173,358, 373, 375, 376, 552.
Not disputed.
83. Mr.Sheridan recalled that the cleanup entailed the removal of 4-5 dumpsters and a
one ton truck full of debris. Exhibit 4 at 113.
Not disputed.
Plaintiffs’ Statement Of Undisputed Material Facts
84. Duringhis lifetime, the Plaintiff, John B. Avila, was an individual residing at 475 East
Main Street, Orange, Massachusetts (“Avila”). (Complaint, §1).
Detendams Response:
’
Defendants do not dispute this statement.
85. During his lifetime, the Plaintiff, John B. Avila, Trustee, 475 Main Street Avila Realty
Trust, is the sole trustee and bene?ciary of the 475 Main Street Avila Realty Trust (the
“Trust”) which owned the real estate at 475 East Main Street in Orange, Massachusetts (the
“Property”). (Complaint, §2).
DefendantsResponse.-
’
Defendantsdispute that John B. Avila was the sole trustee as Lawrence Arditowas
also a trustee. Exhibit 1, Trust documentsfor 4 75 East Main Street Avila Realty
Trust.
86. The Defendant, Town of Orange, Board of Health is a municipal department legally
constituted as a Board of Health for the Town of Orange. (Complaint, §3).
Deter:dants ’
Resgonse:
Admitted.
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87. The Defendant, Robert Legare was, at times material hereto, the legally appointed building
inspector for the Town of Orange. (Complaint, §4).
DefendantsResponse:
’
Admitted with clari?cation. While Robert Legare was a building inspector for the
Town of Orange from March 2, 2016 to January 2017, he was not the building
inspector when the cleanup occurred in April 2019 and he was not at the cleanup.
Exhibit 17, Answers of Defendant Legare to Plainti?‘fs'Interrogatories, dated
November 20, 2020, at Answer to Interrogatory 1; Complaint, 1]15; Exhibit 4 at
491.“ 9-17.
88. John Avila died on April 21, 2022.
DefendantsResponse:
’
Defendants do not dispute this statement.
89. Richard Sheridan became the successor trustee of the plaintiff trust, and the successor to
John Avila as the Personal Representative of John Avila’s estate. (Paper #10, ?led
‘
1/5/2023).
Detendants Response:
’
Defendantsdo not dispute this statement.
90. The Defendants obtained an Order from the Franklin County, Western Division, Housing
Court Department (Docket No. 15 CV 1123) (the “Housing Court Action”) dated October
19, 2017, (the “Original Order”, Exhibit “A” attached to the Complaint).
DefendantsResponse:
‘
Defendants admit the court issued the order on defendants’ summary judgment
motion.
91. The Original Order was amended by the First Amended Order. (Complaint, §10, Exhibit
“C” attached to the Complaint).
DefendantsResponse:
’
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Defendants admit that the Court issued the order on September 24, 2018 which is
Exhibit C to thecomplaint, but deny it was an amended order.
92. The Original Order and First AmendedOrder were amended by the Second Amended
Order. (Complaint, §11-12, Exhibit “E” attached to the Complaint).
Detendants Response:
’
Defendants state that Eithibit
E to the complaint issued on March 20, 2019, entitled
Amended Order, amended Exhibit C to the complaint. It is not a second amended
order.
93. The scope of the authorization of the Original Order, First Amended Order and Second
Amended
Order, relating to the removal of the Plaintiffs’ real and personal property,
authorized the Defendants “
......to enter upon the (Property) with at least fourteen days”
notice to (the Plaintiffs); take such steps as are necessary to remediate the State Sanitary
Code, Building Code and By-Law violations present at the pmperty; and place a lien.upon
the property for the costs associated therewith”. (Complaint, §7-8).
DefendantsResgonse:
’
Admitted with clari?cation. Defendants admit that Exhibits A, C and E
complaint set forth the scope contained herein. to the
94. The Defendants began the process of enforcing the Original Order, First Amended Order
and Second Amended Order on April 2, 2019. (Deposition of Ricard Sheridan, p. 26).
Detendants’Response:
Admitted with clari?cation. Defendants did begin the cleanup of plaintiff‘s
property on April 2, 2019 pursuant to the original order of October 19, 2017, the
order of September 24, 2018 and the amended order of March 20, 2019 which are
Exhibits A, C and E to the complaint.
95. The followingitems were either improperly removed, destroyedor otherwise unaccounted
for by the Defendants after the completioii
of the process
of enforcing the Original Order,
First Amended Order and Second Amended Order because the removal and/or destruction
20
103276604
of, or the Defendants unaccountability for these items exceededthe scope of their authority
pursuant to the Original Order, First Amended Order and Second Amended Order: ,
1. Vehicles (Mock-Ups) (Sheridan deposition, V01 1, pgs. 26-28)
2. Drop Front Axel (2) (Sheridan deposition, Vol 1, pgs. 40—42)
I-Beam Ford Axels (Sheridan deposition, Vol 1, pgs. 40-42)
Model A Ford Parts (Sheridan deposition, _Vol1, pgs. 40-42)
Other Automotive Parts (Sheridan deposition, Vol 1, pgs. 40-42)
Mockups (3 Cadillac, 1 Dodge pickup) + Corvette body (Sheridan deposition, Vol
1, pgs. 43-48, V013 pgs. 454, 457-458, 530)
Grumman Step Van w/ Shed (Sheridan deposition, Vol 1, pgs. 58-62. 77, 81, 364)
Hot Tub + Fence (Sheridandeposition, Vol 1, pgs. 63-64, Vol. 3, pgs528-529)
Steel Automotive
Parts (Sheridan deposition, Vol 1, pg. 63)
10. Table Saw (Sheridan deposition,Vol 1, pgs75,
89)
11. New + Used Automotive Parts (Sheridan deposition, V01 1, pg. 75)
12. Grill (Gas) (Sheridan deposition, Vol 1, pgs. 75,84 Vol 3 pgs
757-758)
13. Shed over cord wood (Sheridan deposition, Vol 1, pg. 75)
14. Glass Top Electric Stove (Sheridan deposition, Vol 1, pg. 76)
15. Trusses (Sheridan deposition,Vol 1, pgs. 81,371; Vol 3 pg. 399) .
16. Plastic Castle (Sheridan deposition, Vol 1, pg.. 83; V013 pgs 434, 528)
17. Pull Cart (Sheridan deposition, Vol 1, pg.. 85; Vol 3 pgs. 399, 407)
18. Ford Flathead Engine (Sheridan deposition, Vol 1, pg.. 87)
19. GeneralMotors V8 Engine (Sheridan deposition, Vol 1, pg"87)
20.. Engine Stand (2) (Sheridan deposition, Vol 1, pg.. 87)
21
103276604
21. Jaguar rear end (Sheridan deposition,Vol 1, pg. 89)
22. Destroyed sump pump hoses (Sheridan deposition; Vol 1, pg. 93; Vol 3 pgs. 427-
428) '
23. Disc Player (Sheridan deposition, Vol 1, pg. 106)
24. Steel taken on "Steel Day" (Sheridan deposition,Vol 1, pgs. 112-113)
25. Snow blower (Sheridan deposition, Vol 1, pgs. 122, 363, 385; Vol 3 pg. 561)
26. Cement Mixer (Sheridan deposition,
Vol 1, pg. 122)
27. Bucket of Nails #64 (Sheridan deposition, Vol 1, pgs. 128)
28. Corner Brackets #65 (Sheridan deposition, Vol 1, pgs. 128)
29. Aluminum Signs + Tires (Sheridan deposition, Vol 1, pgs. 140)
30. TVs (Sheridan deposition, Vol 1, pgs. 141; Vol 3 pgs 526-527)
31. Hot Tub Lumber (Sheridan deposition, Vol 1, pgs. 148, Vol 3 pg. 434)
32. Railroad Cart Wheels (Sheridan deposition, Vol 1, pg. 149)
33. Corvette
Chassis (Sheridan deposition, Vol 1, pg. 150)
34. '40 or '41 Ford body fenders (Sheridan deposition, Vol 1, pg. 150)
35. Wood in shed (Sheridan deposition, Vol 2, pgs. 167)
36. Unregistered Dodge Pick Up Trust (Sheridan deposition, Vol 3, pgs. 492-493)
-
37. '3 Usor '40s Ford front end (Sheridan deposition, Vol 2, pg. 339)
38. Dual Axle EquipmentTrailer (Sheridan deposition, Vol 2, pg. 348)
39. Exhaust manifolds (Sheridan deposition, Vol 2, pg. 358)
40. Wood Casement Windows (Sheridan deposition,
Vol 2, pg. 360)
41. Chop Saw (Sheridan deposition, Vol 2, pg. 376)
42. Engine Puller (Sheridan deposition, Vol 2, pgs. 377-378)-
22
103276604
43. Engine.Puller Hoist (Sheridan deposition, Vol 2, pgs. 377-378; Vol 3, pg. 408)
44. Toolbox
(Sheridan deposition, Vol 2, pg. 379)
45. Table (Sheridan deposition, Vol 2, pg. 379)
46. Corvette Exhaust Pipe/Header Pipes (Sheridan deposition, Vol 2, pg. 381; Vol 3
pg. 410)
47. Corvette Muf?ers (Sheridan deposition, Vol 2, pg. 381)
48. Are Lite (Sheridan deposition, Vol 2, pg. 386)
49. Pickup truck steps (Sheridan deposition, Vol 3, pgs. 405-406)
50. Model A (Dropped) Axel (Sheridan deposition, Vol 3, pg. 408)
51. File Cabinets (Sheridan deposition, Vol 3, pg. 411)
52. Motorcycle Fender (Sheridan
deposition, Vol 3, pg. 412)
53. Handlebars (Sheridan deposition, Vol 3, pg. 412)
54. Portable Welder
(Sheridan deposition, Vol 3, pg. 413)
55. Window (Sheridan deposition, Vol 3, pgs. 21, 424)
56. Bed Extender
(Sheridan deposition,Vol 3, pg. 415)
57. Pickup Rear Window Protector (Sheridan deposition, Vol 3, pg.415)
58. Gas Tank (Sheridan deposition, Vol3, pg. 416)
59. Motorcycle fender (Sheridan deposition, Vol 3, pg. 416)
60. Metal Table (Sheridan deposition, Vol 3, pg. 416,421)
61. Rolling Cart (Sheridan deposition, Vol 3, pg. 416)
62. Steel/Metal Shelf (Sheridan deposition, Vol 3, pgs. 419-420)
63. Orange and Red Plastic Pipe/Conduit (Sheridandeposition, Vol 3, pg. 420)
64. Stand Lights (Sheridan deposition, Vol 3, pg. 421)
23
103276604
65. Motorcycle Gas Tank (Sheridan deposition, Vol 3, pgs. 421-422)
66. Metal Chair (Sheridan deposition, Vol 3, pg. 422)
67. Ladders (Sheridan deposition,V01 3, pg. 422)
68. Air Hose (Sheridan deposition, Vol 3, pg. 423)
69. AirTank (Sheridan deposition, Vol 3, pg. 423)
70. Aluminum Frame (Sheridan deposition, Vol 3,pg. 423)
71. Steel Art (Sheridan deposition, Vol 3, pg. 424)
72. Radiator (automotive) (Sheridan deposition, Vol 3, pg. 425)
73. PVC Pipe (Sheridan deposition, Vol 3, pg. 433)
74. '46 Ford Deluxe 3 Speed Tranny (Sheridan deposition,
Vol 3, pg. 523)
75. Child Battery operated Jeep (Sheridan deposition, Vol 3, pg. 523)
76. 4 ft. Fluorescent Tubes (Sheridan deposition,
Vol 3, pg. 541)
77. 24 Service plate w/ 14 Karat
Gold (Sheridan deposition, Vol 3, pg. 543)
78. 12 to 15 ft. Boat w/ outward motor and trailer (Sheridan deposition, Vol 3_,pgs.
546-547)
79. Spare Wood Stove (Sheridan deposition,
Vol 3, pg. 548)
80. Cassette Recorder (Sheridan deposition, Vol 3, pg.562)
DefendantsResgonse:
’
Disputed. Given the volume of items on the property which necessitated the
enforcement action, it is impossible for the defendants to state whether each item
listed was removed. However, To the extent some or all of the items listed in
numbers 1 through 80 were removed from 475 East MainStreet 1n Orange, MA
during the cleanup in April 2019, they were removed in compliancewith the
Housing Court’s original order of October19,2017;the orderof September24,
2018 and the amended order of March 20,2019 sincetheTo'wri df Orange Board
of Health was authorized to take such steps as were necessary to remediate the State
Sanitary Code, Building Code and Bylaw violations that the Housing Court found
to be present at the property. See Exhibit A, C and E to the Complaint. While
24
103276604
some individual items may not have been an issue, the totality of the material on
the property was the problem. Vehicles that were not registered violated the bylaw
and the State Sanitary Code. Furthermore, items were removed from the property
because John B. Avila failed to remove them from the property prior to the cleanup
despite receiving notices from the Town advising that he remove any items he
wanted to keep, and despite being told repeatedly during the cleanup that he should
remove or' place items under cover so that they would not be taken during the
cleanup. The defendants also requested that plaintiffs provide a list of any items
they felt did not fit within the cleanup order for the defendants to evaluate.
Plaintiffs did not provide a list. Plaintiffs response was that all items must be left
on the property as none were subject to Judge Fein's order which was Exhibit A to
the complaint. Exhibit 23; Exhibit 33; Exhibit 4 at I08.‘9 [11:15; Exhibit 34;
Preview
COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT FRANKLIN, ss. CIVIL ACTION NO. 2078CV00019 RICHARD SHERIDAN, PERSONAL REPRESENTATIVE FOR THE ESTATE OF JOHN B. AVILA AND AS TRUSTEE, 475 EAST MAIN STREET AVILA REALTY TRUST, Plaintiffs FILED V. FEB 2 2024 - TO‘VN OF ORANGE, BOARD OF HEALTH AND BUILDING INSPECTOR, , - _ _ Defendants CONSOLIDATED STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ' AND IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGEMENT - Defendants’ Statement of Undisputed Material Facts 1. In 2011, through the Plaintiff 475 East Main Street Avila Realty (“the Trust”), ‘ former Plaintiff John B. Avila took up residence in a ?ve-bedroom farmhouse on Route 2A between Orange and Athol, about one mile from the center of town. The address of Mr. Avila’s residence was 475 East Main Street, Orange, MA. See Veri?ed Complaint at 111;see also Trust documents for 475 East Main Street, Avila Realty Trust, submitted herewith as Exhibit 1. Not disputed. 103276604 _2. The Trust was declared on April 29, 2011. Exhibit 1. Not disputed. 3. The Trust acquired _475 East Main Street in Orange on April 29, 2011 for $100,000.00. Exhibit 1. Notdisputed. 4. The original trustee was a man named Lawrence Ardito. Mr. Avila was the sole bene?ciary of the Trust. Exhibit 1. Not disputed. 5. The Trust stated that, in the event of the resignation of the original trustee, the bene?ciary(Mr. Avila) would become the successor trustee. Exhibit 1. Not disputed. 6. On August 10, 2015, Mr. Ardito resigned as trustee and Mr. Avila was appointed. Mr. Avila signedthe Trust documentation on August 31, 2015. See Resignation of Trustee documents, submitted herewith as Exhibit 2. Not disputed. 7._ Not long after Mr. Avila moved in to the 475 East Main Street residence, his front porch, front and side lawns, driveway and backyard barn areas became covered with debris trash, — vehicles, vehicle parts, tarps, broken furniture, appliances, ?xtures, and the like littered the property and spilled out onto the abutting sidewalk. See certain photos of property marked as exhibits to the Depositionof Plaintiffs’ Personal Representative Richard Sheridan (“Sheridan Depo.”), a sampling of which are submitted as Exhibit 3.1 DISPUTED. andOctober 18, ' Mr. Sheridan’s deposition was taken over the course of three days — August 10, September 2] 2023. Testimony' IS consolidated herein at Exhibit 4. 103276604. _ i 8. Several of Mr. Avila’s close friends — including Mr. Sheridan, the personal representative for Mr. Avila’s estate in this case — considered Mr. Avila to be a hoarder. See transcript of Sheridan Depo, submitted herewith as Exhibit4, at 315:14—316:6. Mr. Sheridan also reported that Mr. Avila suffered from a severe head injury caused by a motorcycle accident lwhich may have affected his cognitive functions. Exhibit 4_at 174:13-17623. Mr. Sheridan estimated at his deposition that at least one-third of Plaintiffs’ 1.26-acre lot was “cluttered” with “things, items, haphazardly on the property” and he had never seen a similar property in the Town. Exhibit 4 at 32:22-34z4. Not disputed. 9. By September 2013, the Town was receiving numerous complaints from the public about the condition of Mr. Avila’s blighted property and the impact it was having on the safety of pedestrian traf?c, motor vehicle traf?c, property values and social cohesion. See Order dated September 12, 2013, submittedherewith as Exhibit 5; see also collection of Town of Orange Police Reports detailing public complaints, submitted herewith as Exhibit 6.2 DISPUTED. 10._ The Town thereafter served the ?rst of numerous orders, citations or correspondence directed at the Plaintiffs, each requesting that Plaintiffs remedy said conditions. See Exhibit 5. Not disputed. 11. Mr. Avila initially seemed willing to comply with these orders, but never did so. See letter dated 09/26/2013, herewith submitted as Exhibit 7.3 Over and over again, Mr. Avila ignored, protested, or simply refused to comply with these orders, which cited, among other things, 2 Marked as Exhibit 7 to the Sheridan Depo. 3 Marked as Exhibit 8 to the Sheridan Depo. 103276604 violations of the State Sanitary Code, the Building Code, and numerous Town By-laws relating to debris, zoning and construction on Plaintiffs’ property. See generally Exhibits 5-15, All the while, the condition of his property worsened. DISPUTED. 12. On December 14, 2015, the Town was compelled to initiate in the proceedings WesternDivision Housing Court, leading to a course of litigation that would see the Town obtain multiple temporary restraining orders, obtain a summary judgment order, then obtain a speci?c order enforcing the summary judgment order, then obtain a speci?c order enforcing the previous speci?c order, all in an effort to remediate Plaintiff’s unsafe, blighted property. SeeApplication for Temporary Restraining Order dated 12/14/2015 and submitted herewith as Exhibit 16; see also, generally, Exhibits 18-27, discussed in?a. Not disputed. 13. On April 28, 2015, an of?cial of the Orange Board of Health sent correspondence to the Plaintiffs, informing them that she had conducted a visual inspection of the property which revealed violations of the State Sanitary Code. See Exhibit 8.4 Not disputed. 14. She provided photographs to him taken during the inspection which showed numerous accumulations of refuse (such as construction debris, miscellaneous scrap metal items, automotive parts,auto bodies and tires) throughout the property. Exhibit 8. DISPUTED. Exhibit 8. 4 Marked as Exhibit 9 to the Sheridan Depo. 103276604 i 15. She advised that the Board of Health had received complaints about the conditions Iof the property and ordered Plaintiffs to bring the property into compliance with 105 CMR 410.602 (maintenance of areas free from garbage and rubbish). Exhibit 8. Not disputed that she so advised. 16. She also noted that the property wasin violation of the Town Bylaw 187-1 (location restrictions for operating a commercialjunkyard without being duly licensed). Exhibit 8. Not disputed that she so noted. 17. She ordered that the violations be corrected within 30 days pursuant to 105 CMR 410.830. Failure to comply would result in a ?ne. Each day's failure to comply would constitute a separate violation pursuant- to 105 CMR 410.910. Exhibit 8. Not disputed. 18. Also on April 28, 2015, the then-Town Building Commissioner sent a letter to Plaintiffs regarding several complaints about the accumulation of debris on the property that violated the Town Zoning Bylaws. See Exhibit 9.5 Not disputed that the letter was sent. 19. Defendant Robert Legare was not the Building Commissioner at that time. Defendant Legare became Building Commissioner on or about March 2, 2016 and left for a similar position in a neighboring town in January 2017. See Answers of Defendant Legare to Plaintiffs” Interrogatories, dated November 20, 2020 and submitted herewith as Exhibit 17, at Answer to Interrogatory 1. Not disputed. 5 Markedas Exhibit 10 to the Sheridan Depo. 103276604 20. The Building Commissioner had visited the property on April 7, 2015 and taken photographs that he provided with the letter. He found a violation of Section 3331 of the Town Zoning Bylaw which requires that contractors' yards must be screened from abutting residential structures. See Exhibit 9. The Building Commissioner sent , another notice of violation on June 24,2015 regarding the construction of a fence in violation of Town Bylaws. See correspondence dated 06/24/2015 and submitted herewith as Exhibit 10.6 Not diSputedthat the visit was made, photographs taken and correSpondence sent. 21. Plaintiffs were ordered to abate these violations or face ?nes for each offense. Each day would constitute a separate offense. Exhibits 9-10. Not disputed. 22. On August 18, 2015, an of?cial of the Orange Board of Health sent a letter to Mr. Avila based on inspections she had conducted on April 21, June 5 and August 18 which showed that the property was still in violation of 105 CMR 410.602 and Bylaw Chapter 187-1for operating a commercial junkyard without being duly licensed. These violations were to be corrected within 30 days. See Exhibit 11.7 sent. 1 Not disputed that letter was 23. The letter was followed by two substantively similar August 19, 2015 letters from the Building Commissioner. Exhibit 12-13.8 Not disputed. 24. On December 14, 2015, an of?cial of the Town Board of Health ?led an application for a temporary restraining order with the Housing Court Western Division (Civil Action 5 Marked as Exhibit 11 to the Sheridan Depo. 7 Marked as Exhibit 12 to the Sheridan Depo. 8 Marked as Exhibits 13 and 14 to the Sheridan Depo. 103276604 r#15CV 1,123)(the “2015 Civil Action”) seeking enforcement of her previous orders. It included photographs taken in December 2015 showing the property condition. See Exhibit 16. Not disputed. 25. On December 22, 2015, the Housing Court granted the Town’s application and ordered Plaintiffs to comply with the correction orders dated April 28 and August 18, 2015, within 30 days. See Order dated 12/22/2015, submittedherewith as Exhibit 18. Not disputed. 26. In March 2016, the Town Board of Health conducted an inspection of the subject property along with Defendant Robert Legare, who was the new building inspector. Pursuant to this inspection,on March 23, 2016, Defendant Legare sent notice to the Plaintiffs that included all letters that hadbeen sent previously regarding the violations and the abatement orders for storage trailers being improperly stored,building a fence without a permit,parking requirement violations and sales of'motorvehicles and parts without a special permit. Defendant Legare ordered that the violations becorrected. See 03/23/2016 letter, submitted herewith as Exhibit 15.9 Not disputed that notice(s) were sent. 27. On May 20, 2016, the Town of Orange Board of Health and Building Inspector Legare filed a Complaint in the Housing Court Western Division in the 2015 Civil Action against the Plaintiffs. See Complaint submitted herewith as Exhibit 19. Not disputed. 28. The Town requested an order that the Plaintiffs comply with the enforcement orders issued by the Board of Health and the Building Departmentand pay appropriate fees. Exhibit ‘19. Not disputed. 9 Marked as Exhibit 16 to the Sheridan Depo. 103276604 29. The Complaint referenced the April 28, 2015 noticeof violation issued by, the Board of Health, the April 28, 2015 notice of violation issued by the Building Inspector, the August 18, 2015 notice of violations, the December 14, 2015 Application for TRO seeking enforcement of the enforcement orders, and the March 23, 2016 notice of violations. Exhibit 19. Not disputed. 30. The Complaint noted that, on December 18, 2015, the Housing Com't had ordered the Plaintiffs tocomply with the Town’s orders dated April 28 and August 18, 2015. Exhibit 19. Not disputed. 31. The Complaint notedthat the Plaintiffs did not appeal any of the-orders nor did they comply with them. Exhibit 19. Not disputed. 32. On February 17, 2017, the Town of Orange Board of Health and Building Inspector Legare moved for summary judgment in the 2015 Civil' Action and included photographs of the condition of the property. See Motion for Summary Judgment and Memorandum in Support with photographic Exhibits C and G dated 2/17/2017, submitted herewith as Exhibit 20. Not disputed. 33. The Town argued that the Plaintiffs had received numerous notices of violations of the State Sanitary Code, the Building Code, the Town Bylaws and the Town Zoning Bylaws. Exhibit 20. The Plaintiffs had also received numerous correction orders for these violations and had been ordered by the Housing Court on multiple occasions to comply with the correction orders but had failed to do so. Exhibit 20. Not disputed that the Town so argued. 103276604 34. The Town asked the Court for (among other things) an order that, if the Plaintiffs failed to comply with past correction orders within a reasonable time, the Town could enter the Plaintiffs‘ property and clean it up pursuant to the correction orders. The Town requested that the Plaintiffs be ordered to pay for the cleanup. Exhibit 20. Not disputed that the Town so requested. 35. Mr. Avila ?led a cross-motion for summary judgment at the same time.See Avila’ 3 Motion for Summary Judgmentdated 2/ 17/2017, submitted herewith as Exhibit 21. Not disputed. .36. On October 19, 2017, the Court (Fein, J.) granted the Town's motion for summary judgment and denied Mr. Avila’s cross-motion. See Order dated 10/19/2017 and submitted herewith as Exhibit 22. Not disputed. 37. The Court concluded that the Plaintiffs had failed to remedy violations of the State failed Sanitary Code, the Building Code and the Town Bylaws. In addition, because Plaintiffs to appeal the administrative violation of the codes and requiring notices alleging. corrective actions, the Court ruled that those violations were established as a matter of law by operation of administrative res judicata. Exhibit 22. DISPUTED. The order speaks for itself. 38. The Court also found that the Plaintiffs were properly served with violationnotices. Exhibit 22. DISPUTED. The order speaks for itself. 39. The Court held that the Town was authoriaed to enter upon the'subject property with at least 14 days' notice to plaintiffs andtake steps necessary to remediate the State Sanitary 103276604 Code, Building Code and Bylaw violations. The Town was authorized to place a lien upon the property for the costs associated with the cleanup. Exhibit 22. Not disputed. 40. The .Town gave the Plaintiffs until early spring of 2018 to clean up the property. Pursuant to that arrangement, on February 12,2018, Plaintiffs were given a 14-daynotice advising them thaton March 1, 2018, individuals would walk the Plaintiffs' property and take photographs, if needed, in order to give the Board of Health a more re?ective estimate of the cost to clean up the property. See letters dated 12/04/2017and 2/12/2018, submitted herewith as Exhibit 23.'0 Not disputed. 41. Plaintiffs were advised of the identities of the individuals who would be present and were instructedto list all items that they did not want to be removed. It was Plaintiffs” responsibility to have those items removed and stored properly prior to the cleanup. Exhibit 23. 42. Plaintiffs responded to this notice by insisting that all items be left untouched. See Exhibit 24 at 115. 'Notdisputed as to the contents of the advice. DISPUTED as to allegations of responsibility. 43. On September 7, 2018, the Town ?led a Motion for Speci?c Order of Removal of All Rubbish, Garbage and Other Refuse (“Motion for Speci?c Order”). See Motion for Speci?c Order, dated 09/07/2018 and submitted herewith as Exhibit 24. Not disputed. n———— 1” Marked as Exhibits 17 and 18 to the Sheridan Depo. . i 10 103276604 44. The Town provided numerous photos taken of Plaintiffs' property on all sides on April 3 and 4, 2018 which showed vehicles, tires, furniture, boards, trash bags and the like in Plaintiffs’ yard. Exhibit 24. Not disputed. 45. The Town requested that the Court authorize removal of all items depicted in the photographs. The Town further requested that the Court order Mr. Avila to refrain from impeding removal of the items pursuant to Judge Fein's order. Exhibit 24. Not disputed that the Town so requested. 46. On September 21,2018, the Court (Fields, J.) held a hearing on the Motion for Speci?c Order. See Order dated 09/24/2018 and submitted herewith as Exhibit 25. Not disputed. 47. In an order dated September 24, 2018, Judge Fields held that Judge ‘Fein‘s October 19, 2017 summary judgment order was to remain in effect.Exhibit 25. Not disputed. 48. Judge Fields stated that the Town could enter the Plaintiffs' property to remediate ~ the violations. He also stated that the Town was authorized to digitally record the enforcement of the order. Exhibit 25. Not disputed. 49. On October 29, 2018, the Town attempted to clean the plaintiffs' property, but Mr. Avila would only allow five trash bags to be removed. Accordingly, on March 6, 2019, the Town ?led a Motion to Uphold and Reaf?rm Speci?c Order of Removal of All Rubbish, Garbage and Other Refuse from the Subject Property (“Motionto Uphold and Reaffirm”). See Motion to Uphold and Reaf?rm dated 03/6/2019, submitted herewith as Exhibit 26, at page 2, fourth para. 11 103276604 ’ 7 DISPUTED. 50. The Town requested that the Court uphold and reaf?rm Judge Fields' September 24, 2018 order authorizing removal of all items depicted in videos and photographs that the Town provided, as well as additional items accumulated by Mr. Avila sincetheorder. Exhibit 26. Notdisputed that the Town so requested. 51. On March 18,.2019, Judge Fields issued another order, amended onMarch 20, 2019, authorizing the Boardof Health to access the Plaintiffs' property to take such steps as were necessary to remediate the State Sanitary Code, Building Code and By-Law violations present at theproperty. See Order dated 03/20/2019, submitted herewith as Exhibit 27. Not disputed. 52. Pursuant to this Order, Mr. Avila was not to interfere with the Town's efforts. If he did, the police were authorized to remove him from the property during the time of enforcement. Exhibit 27. Accordingly, On March 18, 2019, the Town arranged for a 14-day notice of remediation to be hand-delivered to Mr. Avila by the local police, informing him that the Town would remediate the property beginning on or about April 2, 2019. See Correspondence dated 03/18/2019 and submitted herewith as Exhibit 33. In this letter, Mr. Avila was explicitly instructed that “[a]ny items you feel are of value should be removed and properly stored prior to Tuesday, April 2.” Exhibit 33. Not disputed. 53. On April 2, 2019, the clean-up started. See generally Exhibit 4 at 72:8-124:16. Not disputed. 12 103276604 54. The clean-up included the removal and relocation of cars, trucks, tractortrailer bodies, truckloads of debris and other waste. Id. Not disputed that such items were removed/relocated but DISPUTED that the Town had the authority to do sawwas a “clean up”. 55. The clean-up started with a professional rubbish removal company ?lling trucks and dumpsters with debris. 1d. DISPUTED that everything removed was debris. 56. Clean-up was hampered by ?ooding of the land in front of four trailer chassis, whichrequired the laying of stone before three of the four trailers could be moved. On April 5, 2019, the ?nal trailerwas moved. Id. at 92:6-101 :2 DISPUTED that there was a ?ood. 57. Mr. Avila was encouraged to use the 3-day weekend to move tools and good car parts into his garage, but he did very little. 1d. at 108:9-111:15. Not disputed. 58. On April 8 and 9, additional debris and vehicles were removed. At the end of the day, Mr. Avila was told to move everything remaining into his garage and carport, and he was given 8 days to do 50. 1d. at 111:16-124:16. DISPUTED that everything removed was debris. 59. On April 10, 2019, Mr. Avila was advised that there would be a ?nal clean up and remediation on April 17, 2019. See duplicate correspondence dated 03/18/2019 and 04/10/2019 (the letters are identical except for the date, an apparent clerical error — the 03/18/2019 letter is stamped by the constable as hand-delivered on 04/10/2019) and submitted togetherherewith as Exhibit 34. He was again advised — by notice hand-delivered by the local police — that “[t]o be 13 103276604 clear, this meansallitems you feel are of value should be properly stored under the carport or garage, ,or removed prior to Wednesday, April 17th.This includes, but is not limited to: all car parts, tools, machines, windows, doors, etc...” Exhibit 34. Notdisputed that correspondence was sent. 60. By April 17, 2019, no items had been moved. Exhibit 4 at 285: 1-287zl9. DISPUTED. 61. On that day, more debris was removed but because Mr. Avila was confrontational, all efforts were stopped. Id. at 47922—482: 16. DISPUTED. , 62. Mr. Avila was told that he could keep the remaining items but he hadto move them undercover. 1d. at 181:15-184z4, 483:5-19. There instances we'reseveral during the cleanTup where Mr. Avila was allowed to keep certain items after he objected to having them disposed of. Exhibit 4 at 172-3 and 552. Not disputed that he was so told. 63. There was a police presence the entire time. Id. at 292:20-293z2. Not disputed. 64. On August 16, 2019, Plaintiffs sent correspondence to Defendants, purportedly pursuant to M.G.L. c. 258, §4, outlining claims Plaintiffs believed they had based on the remediation of Plaintiffs’ property. Nuisance was not one of them. See correspondence dated 08/16/2019 and submitted herewith as Exhibit 28. Not disputed. 65. on August 2, 2019, Plaintiffs filed a complaint for in the 2015 Civil contempt Action. Plaintiffs alleged that the Town representatives acted knowingly, intentionally and in 14 103276604 complete disregard of the Housing Court Orders, dated October 19, 2017, September 24, 2018, March .18, 2019 and March 20, 2019, by removing and destroying Plaintiffs' personal property which was not subject to the Orders and which they knew was not subject to the Orders. See Complaint for Contempt dated 08/02/2019 and submitted herewith as Exhibit 29. Not disputed. 66. A list of the allegedly improperly taken property — consisting of 66 items — was submitted with the Complaint for Contempt. Exhibit 29. Not disputed. 67. Plaintiffs' counsel requested that a summons be issued pursuant toMRCP Rule 65.3 directing the Town to appear before the Court for the purpose of determining if the plaintiffs' allegations were true. Exhibit 29. Not disputed. 68. On August 6, 2019, the Court (Fields, J.) ordered that no contempt summons would issue. See Order dated 08/06/2019, submitted herewith as Exhibit 30. Not disputed. 69. In September 2017, Mr. Avila sent packages containing plastic rats and cryptic notes to Town Board of Health of?cials. See Police IncidentReport dated 09/27/2017 and submitted herewith as Exhibit 31. Not disputed. 70. On April 21, 2022, two years after ?ling the instant action, Mr. Avila died. See “Suggestion of Death,” docket entry #7. Not disputed. 15 103276604 71. In April 2018, Mr. Avila’s employment as a school bus driver for the Town of Orange was terminated after a mother of a female student who rode on Mr. Avila’s school bus reported to his employer that Mr. Avila was harassing the student and making her feel See Af?davit uncomfortable. of Daniel Johnson dated 12/14/2023 and submitted herewith as Exhibit 32 at 11111-3; Exhibit 6 Police Report 4/26/18. DISPUTED. 72. After Mr. Avila’s employer contacted him and warned him to cease this behavior, Mr. Avila drove his school bus to the mother’s place of employment, blocked the exits with his bus and “made a scene.” Exhibit 32 at 114. DISPUTED. 73. Upon being informed by his boss that he was ?red for disregarding the warning he was given, Mr. Avila responded “f—you, I was already planning to quit.” Exhibit 32 at 114. DISPUTED. 74. No employee, of?cer or representative of the Town of Orange was involved in Mr. . Avila’s termination. Exhibit 32 at 115. DISPUTED. 75. At his deposition, Mr. Sheridan testi?ed that he had no information about Mr. defamation Avila’s claim. Exhibit 4 at 231:10-13. Not disputed. 76. At his deposition, Mr. Sheridan testi?ed that Defendant Legare was not at the cleanup and he had “no idea” why Defendant Legare was being sued. Exhibit 4 at 491 :9-17. Not disputed. 16 103276604 77. The Trust sold the residence at 475 East Main Street on or about October6, 2023 for $128,000. Exhibit 4 at 20429-13. Not disputed. 78. Mr. Sheridan testi?ed that he was not alleging any ultrahazardous or inappropriate activity by the professional remediation services used in the April 2019 clean-up. Exhibit 4at 48:7;18-‘489210. DISPUTED. 79. At his deposition, Mr. Sheridan acknowledged that Mr. Avila did notpay his real ’estate taxes and that Mr. Sheridan paid them a?er Mr. Avila’s death in order to remove thelien andsell the property. Exhibit 4 at 10223-103217,339:11-340:24. Not disputed. 80. Mr. Sheridan con?rmed at his deposition that calls were made by town of?cials at the cleanup toTown Counsel, Donna MacNicol,throughout the process to obtain guidance before decisions were made to remove objects from the property. Exhibit 4 at 81:5-82:l7, 168-69, 541. Not disputed. 81. Mr. Sheridan con?rmed at his deposition that town of?cials repeatedly told Mr. Avila during the cleanupprocess that he should put things away and they would not be taken. Exhibit 4 at 182, 483, 533, 535-536. Not disputed. 82. The Town did not remove all items that were in Avila’s yard and driveway during the cleanup process. For example, many items were left such as a suit of armor, a picture pump that Mr. Avila objected to being taken, a Coca Cola machine, an unregistered truck that had ‘ 17 103276604 belonged to Avila’slate father, and sound equipment Avila claimed was valuable. Exhibit 4 at 172,173,358, 373, 375, 376, 552. Not disputed. 83. Mr.Sheridan recalled that the cleanup entailed the removal of 4-5 dumpsters and a one ton truck full of debris. Exhibit 4 at 113. Not disputed. Plaintiffs’ Statement Of Undisputed Material Facts 84. Duringhis lifetime, the Plaintiff, John B. Avila, was an individual residing at 475 East Main Street, Orange, Massachusetts (“Avila”). (Complaint, §1). Detendams Response: ’ Defendants do not dispute this statement. 85. During his lifetime, the Plaintiff, John B. Avila, Trustee, 475 Main Street Avila Realty Trust, is the sole trustee and bene?ciary of the 475 Main Street Avila Realty Trust (the “Trust”) which owned the real estate at 475 East Main Street in Orange, Massachusetts (the “Property”). (Complaint, §2). DefendantsResponse.- ’ Defendantsdispute that John B. Avila was the sole trustee as Lawrence Arditowas also a trustee. Exhibit 1, Trust documentsfor 4 75 East Main Street Avila Realty Trust. 86. The Defendant, Town of Orange, Board of Health is a municipal department legally constituted as a Board of Health for the Town of Orange. (Complaint, §3). Deter:dants ’ Resgonse: Admitted. 18 103276604 87. The Defendant, Robert Legare was, at times material hereto, the legally appointed building inspector for the Town of Orange. (Complaint, §4). DefendantsResponse: ’ Admitted with clari?cation. While Robert Legare was a building inspector for the Town of Orange from March 2, 2016 to January 2017, he was not the building inspector when the cleanup occurred in April 2019 and he was not at the cleanup. Exhibit 17, Answers of Defendant Legare to Plainti?‘fs'Interrogatories, dated November 20, 2020, at Answer to Interrogatory 1; Complaint, 1]15; Exhibit 4 at 491.“ 9-17. 88. John Avila died on April 21, 2022. DefendantsResponse: ’ Defendants do not dispute this statement. 89. Richard Sheridan became the successor trustee of the plaintiff trust, and the successor to John Avila as the Personal Representative of John Avila’s estate. (Paper #10, ?led ‘ 1/5/2023). Detendants Response: ’ Defendantsdo not dispute this statement. 90. The Defendants obtained an Order from the Franklin County, Western Division, Housing Court Department (Docket No. 15 CV 1123) (the “Housing Court Action”) dated October 19, 2017, (the “Original Order”, Exhibit “A” attached to the Complaint). DefendantsResponse: ‘ Defendants admit the court issued the order on defendants’ summary judgment motion. 91. The Original Order was amended by the First Amended Order. (Complaint, §10, Exhibit “C” attached to the Complaint). DefendantsResponse: ’ 19 103276504 Defendants admit that the Court issued the order on September 24, 2018 which is Exhibit C to thecomplaint, but deny it was an amended order. 92. The Original Order and First AmendedOrder were amended by the Second Amended Order. (Complaint, §11-12, Exhibit “E” attached to the Complaint). Detendants Response: ’ Defendants state that Eithibit E to the complaint issued on March 20, 2019, entitled Amended Order, amended Exhibit C to the complaint. It is not a second amended order. 93. The scope of the authorization of the Original Order, First Amended Order and Second Amended Order, relating to the removal of the Plaintiffs’ real and personal property, authorized the Defendants “ ......to enter upon the (Property) with at least fourteen days” notice to (the Plaintiffs); take such steps as are necessary to remediate the State Sanitary Code, Building Code and By-Law violations present at the pmperty; and place a lien.upon the property for the costs associated therewith”. (Complaint, §7-8). DefendantsResgonse: ’ Admitted with clari?cation. Defendants admit that Exhibits A, C and E complaint set forth the scope contained herein. to the 94. The Defendants began the process of enforcing the Original Order, First Amended Order and Second Amended Order on April 2, 2019. (Deposition of Ricard Sheridan, p. 26). Detendants’Response: Admitted with clari?cation. Defendants did begin the cleanup of plaintiff‘s property on April 2, 2019 pursuant to the original order of October 19, 2017, the order of September 24, 2018 and the amended order of March 20, 2019 which are Exhibits A, C and E to the complaint. 95. The followingitems were either improperly removed, destroyedor otherwise unaccounted for by the Defendants after the completioii of the process of enforcing the Original Order, First Amended Order and Second Amended Order because the removal and/or destruction 20 103276604 of, or the Defendants unaccountability for these items exceededthe scope of their authority pursuant to the Original Order, First Amended Order and Second Amended Order: , 1. Vehicles (Mock-Ups) (Sheridan deposition, V01 1, pgs. 26-28) 2. Drop Front Axel (2) (Sheridan deposition, Vol 1, pgs. 40—42) I-Beam Ford Axels (Sheridan deposition, Vol 1, pgs. 40-42) Model A Ford Parts (Sheridan deposition, _Vol1, pgs. 40-42) Other Automotive Parts (Sheridan deposition, Vol 1, pgs. 40-42) Mockups (3 Cadillac, 1 Dodge pickup) + Corvette body (Sheridan deposition, Vol 1, pgs. 43-48, V013 pgs. 454, 457-458, 530) Grumman Step Van w/ Shed (Sheridan deposition, Vol 1, pgs. 58-62. 77, 81, 364) Hot Tub + Fence (Sheridandeposition, Vol 1, pgs. 63-64, Vol. 3, pgs528-529) Steel Automotive Parts (Sheridan deposition, Vol 1, pg. 63) 10. Table Saw (Sheridan deposition,Vol 1, pgs75, 89) 11. New + Used Automotive Parts (Sheridan deposition, V01 1, pg. 75) 12. Grill (Gas) (Sheridan deposition, Vol 1, pgs. 75,84 Vol 3 pgs 757-758) 13. Shed over cord wood (Sheridan deposition, Vol 1, pg. 75) 14. Glass Top Electric Stove (Sheridan deposition, Vol 1, pg. 76) 15. Trusses (Sheridan deposition,Vol 1, pgs. 81,371; Vol 3 pg. 399) . 16. Plastic Castle (Sheridan deposition, Vol 1, pg.. 83; V013 pgs 434, 528) 17. Pull Cart (Sheridan deposition, Vol 1, pg.. 85; Vol 3 pgs. 399, 407) 18. Ford Flathead Engine (Sheridan deposition, Vol 1, pg.. 87) 19. GeneralMotors V8 Engine (Sheridan deposition, Vol 1, pg"87) 20.. Engine Stand (2) (Sheridan deposition, Vol 1, pg.. 87) 21 103276604 21. Jaguar rear end (Sheridan deposition,Vol 1, pg. 89) 22. Destroyed sump pump hoses (Sheridan deposition; Vol 1, pg. 93; Vol 3 pgs. 427- 428) ' 23. Disc Player (Sheridan deposition, Vol 1, pg. 106) 24. Steel taken on "Steel Day" (Sheridan deposition,Vol 1, pgs. 112-113) 25. Snow blower (Sheridan deposition, Vol 1, pgs. 122, 363, 385; Vol 3 pg. 561) 26. Cement Mixer (Sheridan deposition, Vol 1, pg. 122) 27. Bucket of Nails #64 (Sheridan deposition, Vol 1, pgs. 128) 28. Corner Brackets #65 (Sheridan deposition, Vol 1, pgs. 128) 29. Aluminum Signs + Tires (Sheridan deposition, Vol 1, pgs. 140) 30. TVs (Sheridan deposition, Vol 1, pgs. 141; Vol 3 pgs 526-527) 31. Hot Tub Lumber (Sheridan deposition, Vol 1, pgs. 148, Vol 3 pg. 434) 32. Railroad Cart Wheels (Sheridan deposition, Vol 1, pg. 149) 33. Corvette Chassis (Sheridan deposition, Vol 1, pg. 150) 34. '40 or '41 Ford body fenders (Sheridan deposition, Vol 1, pg. 150) 35. Wood in shed (Sheridan deposition, Vol 2, pgs. 167) 36. Unregistered Dodge Pick Up Trust (Sheridan deposition, Vol 3, pgs. 492-493) - 37. '3 Usor '40s Ford front end (Sheridan deposition, Vol 2, pg. 339) 38. Dual Axle EquipmentTrailer (Sheridan deposition, Vol 2, pg. 348) 39. Exhaust manifolds (Sheridan deposition, Vol 2, pg. 358) 40. Wood Casement Windows (Sheridan deposition, Vol 2, pg. 360) 41. Chop Saw (Sheridan deposition, Vol 2, pg. 376) 42. Engine Puller (Sheridan deposition, Vol 2, pgs. 377-378)- 22 103276604 43. Engine.Puller Hoist (Sheridan deposition, Vol 2, pgs. 377-378; Vol 3, pg. 408) 44. Toolbox (Sheridan deposition, Vol 2, pg. 379) 45. Table (Sheridan deposition, Vol 2, pg. 379) 46. Corvette Exhaust Pipe/Header Pipes (Sheridan deposition, Vol 2, pg. 381; Vol 3 pg. 410) 47. Corvette Muf?ers (Sheridan deposition, Vol 2, pg. 381) 48. Are Lite (Sheridan deposition, Vol 2, pg. 386) 49. Pickup truck steps (Sheridan deposition, Vol 3, pgs. 405-406) 50. Model A (Dropped) Axel (Sheridan deposition, Vol 3, pg. 408) 51. File Cabinets (Sheridan deposition, Vol 3, pg. 411) 52. Motorcycle Fender (Sheridan deposition, Vol 3, pg. 412) 53. Handlebars (Sheridan deposition, Vol 3, pg. 412) 54. Portable Welder (Sheridan deposition, Vol 3, pg. 413) 55. Window (Sheridan deposition, Vol 3, pgs. 21, 424) 56. Bed Extender (Sheridan deposition,Vol 3, pg. 415) 57. Pickup Rear Window Protector (Sheridan deposition, Vol 3, pg.415) 58. Gas Tank (Sheridan deposition, Vol3, pg. 416) 59. Motorcycle fender (Sheridan deposition, Vol 3, pg. 416) 60. Metal Table (Sheridan deposition, Vol 3, pg. 416,421) 61. Rolling Cart (Sheridan deposition, Vol 3, pg. 416) 62. Steel/Metal Shelf (Sheridan deposition, Vol 3, pgs. 419-420) 63. Orange and Red Plastic Pipe/Conduit (Sheridandeposition, Vol 3, pg. 420) 64. Stand Lights (Sheridan deposition, Vol 3, pg. 421) 23 103276604 65. Motorcycle Gas Tank (Sheridan deposition, Vol 3, pgs. 421-422) 66. Metal Chair (Sheridan deposition, Vol 3, pg. 422) 67. Ladders (Sheridan deposition,V01 3, pg. 422) 68. Air Hose (Sheridan deposition, Vol 3, pg. 423) 69. AirTank (Sheridan deposition, Vol 3, pg. 423) 70. Aluminum Frame (Sheridan deposition, Vol 3,pg. 423) 71. Steel Art (Sheridan deposition, Vol 3, pg. 424) 72. Radiator (automotive) (Sheridan deposition, Vol 3, pg. 425) 73. PVC Pipe (Sheridan deposition, Vol 3, pg. 433) 74. '46 Ford Deluxe 3 Speed Tranny (Sheridan deposition, Vol 3, pg. 523) 75. Child Battery operated Jeep (Sheridan deposition, Vol 3, pg. 523) 76. 4 ft. Fluorescent Tubes (Sheridan deposition, Vol 3, pg. 541) 77. 24 Service plate w/ 14 Karat Gold (Sheridan deposition, Vol 3, pg. 543) 78. 12 to 15 ft. Boat w/ outward motor and trailer (Sheridan deposition, Vol 3_,pgs. 546-547) 79. Spare Wood Stove (Sheridan deposition, Vol 3, pg. 548) 80. Cassette Recorder (Sheridan deposition, Vol 3, pg.562) DefendantsResgonse: ’ Disputed. Given the volume of items on the property which necessitated the enforcement action, it is impossible for the defendants to state whether each item listed was removed. However, To the extent some or all of the items listed in numbers 1 through 80 were removed from 475 East MainStreet 1n Orange, MA during the cleanup in April 2019, they were removed in compliancewith the Housing Court’s original order of October19,2017;the orderof September24, 2018 and the amended order of March 20,2019 sincetheTo'wri df Orange Board of Health was authorized to take such steps as were necessary to remediate the State Sanitary Code, Building Code and Bylaw violations that the Housing Court found to be present at the property. See Exhibit A, C and E to the Complaint. While 24 103276604 some individual items may not have been an issue, the totality of the material on the property was the problem. Vehicles that were not registered violated the bylaw and the State Sanitary Code. Furthermore, items were removed from the property because John B. Avila failed to remove them from the property prior to the cleanup despite receiving notices from the Town advising that he remove any items he wanted to keep, and despite being told repeatedly during the cleanup that he should remove or' place items under cover so that they would not be taken during the cleanup. The defendants also requested that plaintiffs provide a list of any items they felt did not fit within the cleanup order for the defendants to evaluate. Plaintiffs did not provide a list. Plaintiffs response was that all items must be left on the property as none were subject to Judge Fein's order which was Exhibit A to the complaint. Exhibit 23; Exhibit 33; Exhibit 4 at I08.‘9 [11:15; Exhibit 34;