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COMMONWEALTH OF MASSACHUSETTS
BRISTOL, SS. /
SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. Q\.aCNOO2
KATHY MORIN,
Plaintiff
Vv.
GEOFFREY HAYWORTH, DANIEL DOYLE, VERIFIED COMPLAINT
AMY DELSALVATORE, GARY LAVALETTE,
COREY PIETRASZEK, JOHN DALLEN and
JAKE GALARY, members of the FAIRHAVEN BRISTOL, SS SUPERIOR COURT
CONSERVATION COMMISSION, FILED
LEE MIGUEL and ELIZETT MIGUEL,
Defendants
MAY 18 2021
MARC J SANTOS, ESQ:
CLERK/MAGISTRATE
INTRODUCTION
The plaintiff, Kathy Morin, is a resident of the Town of Fairhaven who brings this action in
the nature of certiorari pursuant to Massachusetts General Laws, Chapter 249, § 4, seeking judicial
review of a decision by the Town of Fairhaven Conservation Commission to issue an Order of
Conditions to the defendants, Lee Miguel and Elizett Miguel under the Fairhaven Wetlands Bylaw.
PARTIES
1 The plaintiff, Kathy Morin, is an individual residing in Fairhaven, Bristol County,
Massachusetts.
2. The defendants, Geoffrey Hayworth, Daniel Doyle, Greg Lavalette, Jake Galary,
Amy Delsalvatore, Corey Pietraszek, and John Dallen are all residents of the Town of Fairhaven,
Massachusetts, serving as members of the Fairhaven Conservation Commission, a municipal
instrumentality of the Town of Fairhaven with a principal place of business located at 40 Center
Street, Fairhaven, Bristol County, Massachusetts (the “Commission”).
3 The defendants, Lee Miguel and Elizett Miguel (collectively “Miguel”) are husband
and wife residing in Fairhaven, Bristol County, Massachusetts.
FACTUAL ALLEGATIONS
4 The plaintiff owns and resides on the real property located at 30 Cherry Street,
Fairhaven, Massachusetts, further described at Assessor’s Map 15, Lot 47.
5 Miguel owns the undeveloped real property located at Cherry Street and North Street,
Fairhaven, Massachusetts, further described as Assessor’s Map 15, Lot 43 (the “Miguel Parcel”).
6 At all times relevant hereto, the Commission is charged with administering the
Fairhaven Wetlands Bylaw, Chapter 192 of the Code of the Town of Fairhaven, Massachusetts.
7 The Fairhaven Wetlands Bylaw provides a greater degree of wetlands protection than
the Massachusetts Wetlands Protection Act, G.L. c.131, § 40.
8 The Fairhaven Wetlands Bylaw, Chapter 192, has the following purpose:
§ 192-1. Purpose
The purpose of this chapter is to protect the wetlands, related water resources and
adjoining land areas in the Town of Fairhaven by controlling activities deemed by
the Fairhaven Conservation Commission likely to have a significant or cumulative
effect upon wetland values, including but not limited to the following: public or
private water supply, groundwater, flood control, erosion and sedimentation control,
storm damage prevention, water pollution control, fisheries, wildlife habitat,
recreation, aesthetics and agricultural values (collectively, the “wetland values
protected by this chapter”).
9 The Fairhaven Wetlands Bylaw expressly identifies aesthetics as a protected wetland
value but does not define the term “aesthetics” for the purpose of making decisions related to the
Fairhaven Wetlands Bylaw.
10. On December 3, 2020, Miguel filed a Notice of Intent with the Commission seeking
approval of a proposed project on the Miguel Parcel affecting protected wetland interests (“Miguel
Project”).
11. A true and accurate copy of the site plan for the Miguel Project is attached hereto as
Exhibit “1”.
12. The western boundary of the plaintiffs property at 30 Cherry Street, Fairhaven,
Massachusetts directly abuts the Miguel Parcel.
13. The scope of the Miguel Project includes the erection of a six (6) foot high stockade
fence along the border of the plaintiff s property and other parcels situated along the perimeter of the
Miguel Parcel covering approximately six hundred (600) feet of fencing around the Miguel Parcel.
14. The public hearing on the Miguel Project before the Commission opened on
December 21, 2020 and closed on April 12, 2021 after the project was reviewed and discussed
during the course of several Commission public meetings.
15. During the public hearing period, the Commission heard from several Fairhaven
residents and concerned abutters in opposition to the Miguel Project on various grounds including
but not limited to multiple environmental and aesthetic concerns.
16. During the public hearing period, the plaintiff presented substantial evidence to the
Commission that the Miguel Project would significantly alter and detrimental impact aesthetic
values, which evidence was made part of the public record. True and accurate copies of the
plaintiffs filings are attached hereto collectively as Exhibit “2”.
17. During the April 12, 2021 public hearing, the Commission engaged in a discussion of
aesthetics germane to the proposed fence, and it was clear that there was no distinct definition of
aesthetics to be applied.
18. During the April 12, 2021 public hearing, Commissioner Lavalette stated on the
record his opposition to the Miguel Project on the grounds that the proposed fence would pose a
significant adverse impact on aesthetics, especially concerning the plaintiff.
19. On April 12, 2021, the public hearing on the Miguel Project was closed and the
Commission voted 4-1 (Lavalette against) to issue an Order of Conditions to Miguel which included,
in part, the erection of a six (6) foot high stockade fence along the plaintiff’s western property line.
20. On April 28, 2021, the Commission issued an Order of Conditions on the Miguel
Project pursuant to the Fairhaven Wetlands Bylaw and Massachusetts Wetlands Protection Act.
21. A true and accurate copy of the Decision Issued under the Fairhaven Wetlands Bylaw
is attached hereto as Exhibit “3”.
COUNT I
CERTIORARI
22. The plaintiff incorporates herein the allegations contained in Paragraphs 1 through 21
of the Verified Complaint.
23. Massachusetts General Laws, Chapter 249, Section 4 (GL. ¢.249, § 4) authorizes an
aggrieved person to bring a civil action in the nature of certiorari to correct errors of law not
otherwise subject to judicial oversight or reasonably adequate remedies.
24. The court has jurisdiction pursuant to G.L. ¢.249, §4 to review in the nature of
certiorari the Commission’s April 12, 2021 decision to approve the Miguel Project and issue a
corresponding Order of Conditions under the Fairhaven Wetlands Bylaw.
25. The plaintiffhas no adequate appellate or legal remedy other than to bring this action
in the nature of certiorari pursuant to G.L. ¢.249, § 4.
26. The plaintiff has standing to bring this action pursuant to G.L. c.249, § 4 in her dual
capacity as a direct abutter to the Miguel Project and a person aggrieved by the Commission’s April
12, 2021 decision to approve the Miguel Project and issue an Order of Conditions under the
Fairhaven Wetlands Bylaw.
27. At.all times relevant hereto the protection of aesthetic interests and concerns fell
expressly within the scope of wetland values protected by the Fairhaven Wetlands Bylaw.
28. Atall times relevant hereto the Commission had the duty to consider aesthetic values
in deciding on whether to approve or deny the Miguel Project under the Fairhaven Wetlands Bylaw.
29. At all times relevant hereto the Commission had the authority under the Fairhaven
Wetlands Bylaw to deny the Miguel Project based upon its detrimental impact upon aesthetic values.
30. At all times relevant hereto the Commission failed to reasonably construct the term
aesthetics in the application of the Fairhaven Wetlands Bylaw to the Miguel Project in accordance
with established legal principles.
31. Atall times relevant hereto the Commission failed to determine the probative value of
the plaintiff's evidence concerning the negative visual consequences and detrimental aesthetic
impacts of the Miguel Project in accordance with established legal principles.
32. At all times relevant hereto the Commission’s approval of the Miguel Project was
contrary to the Fairhaven Wetlands Bylaw and severely harmful to a protected wetlands interest.
33. At all times relevant hereto the Commission’s approval of the Miguel Project
pursuant to the Fairhaven Wetlands Bylaw will cause the plaintiff harm of the type that said by-law
was intended to protect.
34. At all times relevant hereto the Commission’s approval of the Miguel Project was
arbitrary and capricious and in violation of the common law.
35. Asa result of the Commission’s above-described acts and/or omissions, the plaintiff
has and/or will suffer actual aggrievement and substantial injury to a protected legal right and a
manifest injustice.
COUNT II
DECLARATORY JUDGMENT
36. The plaintiff incorporates herein the allegations contained in Paragraphs 1 through 35
of the Verified Complaint.
37. An actual controversy exists within the meaning of G.L. c.231, § 6A concerning the
validity of the Commission’s decision on April 12, 2021 to issue an Order of Conditions to Miguel
pursuant to the Fairhaven Wetlands Bylaw.
38. An actual controversy exists within the meaning of G.L. c.231, § 6A concerning the
validity of the Order of Conditions issued by the Commission to Miguel on April 28, 2021 pursuant
to the Fairhaven Wetlands Bylaw.
39. The plaintiff seeks a declaration that the Commission’s decision on April 12, 2021 to
issue an Order of Conditions to Miguel pursuant to the Fairhaven Wetlands Bylaw is null and void
on the grounds and for the reasons stated in Paragraphs 28-35 of this Verified Complaint.
40. The plaintiff seeks a declaration that the Order of Conditions granted to Miguel on
April 28, 2021 is null and void on the grounds and for the reasons identified in Paragraphs 28-35 of
this Verified Complaint.
41. Asa result of the Commission’s above-described acts and/or omissions, the plaintiff
has and/or will suffer substantial injury to a protected legal right and a manifest injustice.
42. The court should declare that the Commission’s actions invalid and in turn that the
Order of Conditions issued under the Fairhaven Wetlands Bylaw invalid.
43. The court should issue a declaratory judgment that the Commission’s decision on
April 12, 2021 to issue an Order of Conditions to Miguel pursuant to the Fairhaven Wetlands Bylaw
is null and void.
44, The court should issue a declaratory judgment that the Commission’s grant of the
Order of Conditions to Miguel on April 28, 2021 is null and void.
PRAYERS FOR RELIEF
WHEREFORE, the plaintiff respectfully requests the following relief:
a. That a preliminary injunction issue enjoining Miguel from commencing any work
under the Order of Conditions until further orders of this court.
b, That the court grant the plaintiff relief in the form of certiorari and declare the April
12,2021 decision by the Fairhaven Conservation Commission to approve the Miguel Project be null,
void and without legal effect.
C. That the court grant the plaintiff relief in the form of certiorari and declare the Order
of Conditions issued to Miguel on April 28, 2021 to be null, void and without legal effect.
d, That the court enter a declaratory judgment in favor of the plaintiff that the April 12,
20201 decision by the Fairhaven Conservation Commission to approve the Miguel Project is null,
void and without legal effect.
€. That the plaintiff be awarded full and substantial damages plus interest, costs and
reasonable attorneys’ fees.
f. Such other relief as the Court may deem proper.
KATHY MORIN,
By her ALO
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ae COMMONWEALTH OF MASSACHUSETTS BRISTOL, SS. / SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. Q\.aCNOO2 KATHY MORIN, Plaintiff Vv. GEOFFREY HAYWORTH, DANIEL DOYLE, VERIFIED COMPLAINT AMY DELSALVATORE, GARY LAVALETTE, COREY PIETRASZEK, JOHN DALLEN and JAKE GALARY, members of the FAIRHAVEN BRISTOL, SS SUPERIOR COURT CONSERVATION COMMISSION, FILED LEE MIGUEL and ELIZETT MIGUEL, Defendants MAY 18 2021 MARC J SANTOS, ESQ: CLERK/MAGISTRATE INTRODUCTION The plaintiff, Kathy Morin, is a resident of the Town of Fairhaven who brings this action in the nature of certiorari pursuant to Massachusetts General Laws, Chapter 249, § 4, seeking judicial review of a decision by the Town of Fairhaven Conservation Commission to issue an Order of Conditions to the defendants, Lee Miguel and Elizett Miguel under the Fairhaven Wetlands Bylaw. PARTIES 1 The plaintiff, Kathy Morin, is an individual residing in Fairhaven, Bristol County, Massachusetts. 2. The defendants, Geoffrey Hayworth, Daniel Doyle, Greg Lavalette, Jake Galary, Amy Delsalvatore, Corey Pietraszek, and John Dallen are all residents of the Town of Fairhaven, Massachusetts, serving as members of the Fairhaven Conservation Commission, a municipal instrumentality of the Town of Fairhaven with a principal place of business located at 40 Center Street, Fairhaven, Bristol County, Massachusetts (the “Commission”). 3 The defendants, Lee Miguel and Elizett Miguel (collectively “Miguel”) are husband and wife residing in Fairhaven, Bristol County, Massachusetts. FACTUAL ALLEGATIONS 4 The plaintiff owns and resides on the real property located at 30 Cherry Street, Fairhaven, Massachusetts, further described at Assessor’s Map 15, Lot 47. 5 Miguel owns the undeveloped real property located at Cherry Street and North Street, Fairhaven, Massachusetts, further described as Assessor’s Map 15, Lot 43 (the “Miguel Parcel”). 6 At all times relevant hereto, the Commission is charged with administering the Fairhaven Wetlands Bylaw, Chapter 192 of the Code of the Town of Fairhaven, Massachusetts. 7 The Fairhaven Wetlands Bylaw provides a greater degree of wetlands protection than the Massachusetts Wetlands Protection Act, G.L. c.131, § 40. 8 The Fairhaven Wetlands Bylaw, Chapter 192, has the following purpose: § 192-1. Purpose The purpose of this chapter is to protect the wetlands, related water resources and adjoining land areas in the Town of Fairhaven by controlling activities deemed by the Fairhaven Conservation Commission likely to have a significant or cumulative effect upon wetland values, including but not limited to the following: public or private water supply, groundwater, flood control, erosion and sedimentation control, storm damage prevention, water pollution control, fisheries, wildlife habitat, recreation, aesthetics and agricultural values (collectively, the “wetland values protected by this chapter”). 9 The Fairhaven Wetlands Bylaw expressly identifies aesthetics as a protected wetland value but does not define the term “aesthetics” for the purpose of making decisions related to the Fairhaven Wetlands Bylaw. 10. On December 3, 2020, Miguel filed a Notice of Intent with the Commission seeking approval of a proposed project on the Miguel Parcel affecting protected wetland interests (“Miguel Project”). 11. A true and accurate copy of the site plan for the Miguel Project is attached hereto as Exhibit “1”. 12. The western boundary of the plaintiffs property at 30 Cherry Street, Fairhaven, Massachusetts directly abuts the Miguel Parcel. 13. The scope of the Miguel Project includes the erection of a six (6) foot high stockade fence along the border of the plaintiff s property and other parcels situated along the perimeter of the Miguel Parcel covering approximately six hundred (600) feet of fencing around the Miguel Parcel. 14. The public hearing on the Miguel Project before the Commission opened on December 21, 2020 and closed on April 12, 2021 after the project was reviewed and discussed during the course of several Commission public meetings. 15. During the public hearing period, the Commission heard from several Fairhaven residents and concerned abutters in opposition to the Miguel Project on various grounds including but not limited to multiple environmental and aesthetic concerns. 16. During the public hearing period, the plaintiff presented substantial evidence to the Commission that the Miguel Project would significantly alter and detrimental impact aesthetic values, which evidence was made part of the public record. True and accurate copies of the plaintiffs filings are attached hereto collectively as Exhibit “2”. 17. During the April 12, 2021 public hearing, the Commission engaged in a discussion of aesthetics germane to the proposed fence, and it was clear that there was no distinct definition of aesthetics to be applied. 18. During the April 12, 2021 public hearing, Commissioner Lavalette stated on the record his opposition to the Miguel Project on the grounds that the proposed fence would pose a significant adverse impact on aesthetics, especially concerning the plaintiff. 19. On April 12, 2021, the public hearing on the Miguel Project was closed and the Commission voted 4-1 (Lavalette against) to issue an Order of Conditions to Miguel which included, in part, the erection of a six (6) foot high stockade fence along the plaintiff’s western property line. 20. On April 28, 2021, the Commission issued an Order of Conditions on the Miguel Project pursuant to the Fairhaven Wetlands Bylaw and Massachusetts Wetlands Protection Act. 21. A true and accurate copy of the Decision Issued under the Fairhaven Wetlands Bylaw is attached hereto as Exhibit “3”. COUNT I CERTIORARI 22. The plaintiff incorporates herein the allegations contained in Paragraphs 1 through 21 of the Verified Complaint. 23. Massachusetts General Laws, Chapter 249, Section 4 (GL. ¢.249, § 4) authorizes an aggrieved person to bring a civil action in the nature of certiorari to correct errors of law not otherwise subject to judicial oversight or reasonably adequate remedies. 24. The court has jurisdiction pursuant to G.L. ¢.249, §4 to review in the nature of certiorari the Commission’s April 12, 2021 decision to approve the Miguel Project and issue a corresponding Order of Conditions under the Fairhaven Wetlands Bylaw. 25. The plaintiffhas no adequate appellate or legal remedy other than to bring this action in the nature of certiorari pursuant to G.L. ¢.249, § 4. 26. The plaintiff has standing to bring this action pursuant to G.L. c.249, § 4 in her dual capacity as a direct abutter to the Miguel Project and a person aggrieved by the Commission’s April 12, 2021 decision to approve the Miguel Project and issue an Order of Conditions under the Fairhaven Wetlands Bylaw. 27. At.all times relevant hereto the protection of aesthetic interests and concerns fell expressly within the scope of wetland values protected by the Fairhaven Wetlands Bylaw. 28. Atall times relevant hereto the Commission had the duty to consider aesthetic values in deciding on whether to approve or deny the Miguel Project under the Fairhaven Wetlands Bylaw. 29. At all times relevant hereto the Commission had the authority under the Fairhaven Wetlands Bylaw to deny the Miguel Project based upon its detrimental impact upon aesthetic values. 30. At all times relevant hereto the Commission failed to reasonably construct the term aesthetics in the application of the Fairhaven Wetlands Bylaw to the Miguel Project in accordance with established legal principles. 31. Atall times relevant hereto the Commission failed to determine the probative value of the plaintiff's evidence concerning the negative visual consequences and detrimental aesthetic impacts of the Miguel Project in accordance with established legal principles. 32. At all times relevant hereto the Commission’s approval of the Miguel Project was contrary to the Fairhaven Wetlands Bylaw and severely harmful to a protected wetlands interest. 33. At all times relevant hereto the Commission’s approval of the Miguel Project pursuant to the Fairhaven Wetlands Bylaw will cause the plaintiff harm of the type that said by-law was intended to protect. 34. At all times relevant hereto the Commission’s approval of the Miguel Project was arbitrary and capricious and in violation of the common law. 35. Asa result of the Commission’s above-described acts and/or omissions, the plaintiff has and/or will suffer actual aggrievement and substantial injury to a protected legal right and a manifest injustice. COUNT II DECLARATORY JUDGMENT 36. The plaintiff incorporates herein the allegations contained in Paragraphs 1 through 35 of the Verified Complaint. 37. An actual controversy exists within the meaning of G.L. c.231, § 6A concerning the validity of the Commission’s decision on April 12, 2021 to issue an Order of Conditions to Miguel pursuant to the Fairhaven Wetlands Bylaw. 38. An actual controversy exists within the meaning of G.L. c.231, § 6A concerning the validity of the Order of Conditions issued by the Commission to Miguel on April 28, 2021 pursuant to the Fairhaven Wetlands Bylaw. 39. The plaintiff seeks a declaration that the Commission’s decision on April 12, 2021 to issue an Order of Conditions to Miguel pursuant to the Fairhaven Wetlands Bylaw is null and void on the grounds and for the reasons stated in Paragraphs 28-35 of this Verified Complaint. 40. The plaintiff seeks a declaration that the Order of Conditions granted to Miguel on April 28, 2021 is null and void on the grounds and for the reasons identified in Paragraphs 28-35 of this Verified Complaint. 41. Asa result of the Commission’s above-described acts and/or omissions, the plaintiff has and/or will suffer substantial injury to a protected legal right and a manifest injustice. 42. The court should declare that the Commission’s actions invalid and in turn that the Order of Conditions issued under the Fairhaven Wetlands Bylaw invalid. 43. The court should issue a declaratory judgment that the Commission’s decision on April 12, 2021 to issue an Order of Conditions to Miguel pursuant to the Fairhaven Wetlands Bylaw is null and void. 44, The court should issue a declaratory judgment that the Commission’s grant of the Order of Conditions to Miguel on April 28, 2021 is null and void. PRAYERS FOR RELIEF WHEREFORE, the plaintiff respectfully requests the following relief: a. That a preliminary injunction issue enjoining Miguel from commencing any work under the Order of Conditions until further orders of this court. b, That the court grant the plaintiff relief in the form of certiorari and declare the April 12,2021 decision by the Fairhaven Conservation Commission to approve the Miguel Project be null, void and without legal effect. C. That the court grant the plaintiff relief in the form of certiorari and declare the Order of Conditions issued to Miguel on April 28, 2021 to be null, void and without legal effect. d, That the court enter a declaratory judgment in favor of the plaintiff that the April 12, 20201 decision by the Fairhaven Conservation Commission to approve the Miguel Project is null, void and without legal effect. €. That the plaintiff be awarded full and substantial damages plus interest, costs and reasonable attorneys’ fees. f. Such other relief as the Court may deem proper. KATHY MORIN, By her ALO