69 WEATHERLY DRIVE - STAVIS CHAIRLIFT - BUILDING INSPECTION lie
1, ?.-
'UPC10330
No. 153L
NAwiI.pG9,;nad
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son Gargiulo/Rudnick,LLP Boston Cape Cod
Attorneys at Law
66 Long Wharf 766 Falmouth Rd.,Unit A-6
Boston,MA 02110 Mashpee,MA 02649
i
www.grg law.com wwwgrglaw.com
t 617 742 3833 t 508 477 6400
f 617 523 7834 f 508 477 0455
Marierse Kelly'
mlk@grglaw.com
iBoston
Also admitted in
NY and NH
May 28, 2008
I
BY FAX— 978-744-9327
and CERTIFIED MAIL
ARTICLE NO.: 7006 3450 0000 1847 3662
Elizabeth Rennard, City Solicitor
City of Salem
City Hall
93 Washington Street
Salem, MA 01970
SETTLEMENT DEMAND PRIOR TO
COMMENCEMENT OF ACTION
Re: Application for Criminal Complaint—Robert and Pamela Stavis
Dear Ms. Rennard:
This office represents Mr, and Mrs. Robert Stavis in connection with their efforts
to secure permitting to allow them to retain use of a chairlift at their condominium at the
Weatherly Drive Condominiums located at 69 Weatherly Drive, Salem Massachusetts.
The City of Salem, through its building inspector, has filed an application for criminal
complaint against Mr. Stavis for failure to remove the chairlift pursuant to his order. As
you may be aware, the chairlift is used by Pamela Stavis due to the fact that she suffers
from a degenerative and disabling condition, Muscular Dystrophy, which severely
impairs her ability to ambulate. It is the Stavises contention that seeking a criminal
complaint and/or otherwise failing to issue permits for the chairlift constitutes unlawful
discrimination against a handicapped person in a violation of M.G.L.c. 151B §1 et seq. t
The Stavises are seeking to resolve this matter by agreement with the City in an effort to
obviate the need to file a formal MCAD complaint against the City of Salem and/or
otherwise engage in litigation.
In framing the issues in this settlement demand in terms of unlawful handicap discrimination under
M.G1.c. 15113, the Stavises do not waive any other legal rights and remedies that may be available to them
under state or federal law.
P:15TAVIS,RONLRTWiLK Leiter io Town(seulemcn:demand)0805i3.doc
r
May 28, 2008
Page 2 of 5
As you are aware, the City of Salem is subject to litigation for handicap
discrimination under M.G.L.c. 151 B. See M.G.L.c. 151B § (defining "person" subject
to liability for handicap discrimination to include all political subdivisions of the
Commonwealth). Handicap discrimination is prohibited in virtually all public and
private housing settings, including condominiums, such as the one at issue. See e.g.
j M.G.L.c. 151B §1 (9) (defining regulated "housing" and"housing accommodations");
10(b) (defining regulated housing to include housing in multiple dwelling financed or
insured by federal government); §1 (10) c (defining regulated housing to include housing
j contiguous to public streets); 151B §1 (11) (regulating"multiple dwellings"). In addition
to those specifically enumerated housing arrangements covered by M.G.L.c. 15113, there
is a "catch-all"provision in 151B §1 (13)which makes M.G.L.c. 151B applicable to "all
housing accommodations not specifically covered under subsections 10, 11 and 12 which
are directly or though an agent made generally available to the public for sale or lease or
rental . . " M.G.L. 151B §1 (13.). The Weatherly Drive Condominiums are regulated by
those provisions of the statute which prohibit handicap discrimination.
Unlawful housing practices are enumerated in M.G.L.c. 151B §4A. In pertinent
part, under M.G.L.c. 151B §6 it is unlawful " . . . .to withhold from any person or group
or persons such accommodations . . . .because such person is blind, or hearing impaired,
or has any other handicap or(b)to discriminate against any person . . . because such
person is blind, or hearing impaired, or has any other handicap, in the terms conditions or
privileges of such accommodations or the acquisitions thereof, or in the furnishing of
facilities and services in connection therewith . . ." M.G.L.c. 151B §6. For the purposes
of this subsection, discrimination on the basis of a handicap includes, but is not limited to
" . . . a failure to design and construct such dwellings in a manner that (i) the public use
and common use portions of such dwellings are readily accessible and usable by
handicapped persons" 151B 4 (6) (i). Additionally, "all premises within such dwellings
must contain the following features of adaptive design: (a) an accessible route into and
through the dwelling . . . ." 151B sec. 6 (iii) (a).
The statute further provides that " . . . [Discrimination on the basis of a handicap
shall include, but not be limited to:(1) a refusal to permit or make, at the expense of
the handicapped person, reasonable modification of existing premises occupied or to
be occupied by such person if such modification is necessary to afford such person
the full enjoyment of such premises . . . . "M.G.L.c. 151B §7A (1) (emphasis added).
The statute states that handicap discrimination shall include a "refusal to make
reasonable accommodations in rules, policies, practices or services which such
modifications may be necessary to afford a handicapped person equal opportunity
to use and enjoy a dwelling." M.G.L.c. 151B §7A (2) (emphasis added). M.G.L.c. 151
B "reasonable accommodation shall include, but not be limited to, making the housing
accessible to mobility-impaired . . .persons."M.G.L.c. 151B §7A (3). This provision of
the statute references "installing a wheelchair lift" as a reasonable accommodation, but
states that the owner of the premises shall not be required to pay for the installation of a
wheelchair lift. M.G.L.c. 151B §7A (3). Accommodations are not "reasonable" in the
event "it would impose an undue hardship upon the owner or other person having the
right of occupancy . . .." M.G.L.c. 151B §7A (3). The Stavises contend that the
Gargiulo/Rudnick,LLP
Attorneys at Law
May 28, 2008
Page 3 of 5
I
wheelchair lift constitutes a reasonable accommodation that is necessary for Mrs. Stavis
to have the full enjoyment of her residential premises. Moreover, it is essential to ensure
her ability to safely egress the building particularly in the event of an emergency.
Furthermore, there is no "undue hardship" imposed on any person as a result of the
existence and/or use of the wheelchair lift. The installation was, in fact, approved by the
Weatherly Drive Condominium authority prior to the Stavises purchase of the premises.
The statute provides it shall be an unlawful practice "For any person to coerce,
intimidate, threaten, or interfere with another person in the exercise or enjoyment of any
right granted or protected under this chapter . . . " M.G.L..c 15113 §4A. The Stavises
contend that the City of Salem's application for criminal complaint against Mr. Stavis
flowing from his failure to remove the wheelchair lift constitutes intimidating and
coercive conduct by the City which is prohibited by this provision of the anti-
discrimination statute.
As I believe the City of Salem is aware, the Stavises sought (and obtained)
permission from their Condominium Association prior to purchase of the condominium
unit. Further, they sought an obtained approval from the City of Salem Building
Inspector prior to purchasing the unit. As I understand the chronology, it was only after
the chairlift unit was installed, that the Building Inspector determined that there was a
technical violation of the State Building Code causing him to revoke his permission and
institute a petition for variance before the State Building Code Appeals Board. The
Board also granted the Stavises relief but that decision was later overturned by the
Massachusetts Appeals Court on a procedural issue of whether the Stavises pro se appeal
was timely commenced. The Stavises contend that they reasonably relied upon the
initial decision of the Building Inspector and that the City of Salem should be estopped to
deny the permission it initially granted.
The Stavises have been involved in protracted and vexatious litigation with two
owners or occupants in their condominium unit related to the issue of the chairlift. The
issue of whether M.G.L.c. 151B requires that the chairlift be permitted by the Town has
never been adjudicated in any forum. The only issue ultimately adjudicated was whether
the Stavises appealed to the State Building Board of Appeals was timely commenced.
No court or administrative body has ever adjudicated the issue of whether Mrs. Stavis is
the victim of handicap discrimination in violation of M.G.L.c. 151B. Indeed, the State
Building Code of Appeals has no jurisdiction to address matters of handicap
discrimination under M.G.L.c. 151B. Accordingly, any MCAD complaint against the
City of Salem is not barred by principles of res judicata or issue preclusion.
Additionally, the Stavises contend that any MCAD complaint that they institute
against the Town of Salem is timely commenced. There is an on-going and continuous
pattern of discrimination against the Stavises by the City of Salem in failing to issue a
permit to allow the wheelchair lift to remain on the premises. Indeed, the City of Salem
has embarked on an additional discriminatory course in bringing an application for
criminal complaint against the Stavises for an alleged violation of the Massachusetts
State Building Code.
Gargiulo/Rudnick,LLP
Attorneys at Law
May 28, 2008
Page 4 of 5
Both the MCAD, as well as the Massachusetts Superior Court are empowered to
issue restraining orders to stop discriminatory conduct that violates M.G.L.c. 151 B. The
application for criminal complaint is scheduled to be heard in Salem District Court on
June 25, 2008. In the event this matter is not resolved by agreement prior to that date,
the Stavises will seek to restrain the City of Salem from pursuing any criminal complaint
against the Stavises and, in fact, will seek an affirmative injunction requiring the City of
Salem to permit the chairlift and allow its presence.
As you may be aware, both the MCAD and the Superior Court are empowered to
award damages, as well as attorneys fees to the Stavises as a result of the unlawful and
discriminatory conduct on the part of the City of Salem. Since 2002, the Stavises have
incurred, and continue to incur, substantial attorney fees and costs addressing these
issues. Preparing to defend against the application for criminal complaint has caused
further financial hardship and distress to the Stavises.
It is the Stavises contention that granting them relief is not only the legally correct
decision, but is also the morally correct decision. The City of Salem should not be an
instrument of any form of handicap discrimination. The Stavises have been and continue
to be good neighbors within the City of Salem and should not be compelled to leave their
home as a result of the discriminatory treatment by the City of Salem in denying Mrs.
Stavis reasonable accommodations as a handicapped person.
On behalf of the Stavises, I respectfully request the following relief:
' 1) Immediate withdrawal, with prejudice, by the City of Salem of all
applications for criminal complaints against the Stavises;
2) Issuance nun pro tunc of all requisite permits for the chairlift
Should you require any additional information to facilitate your review of this
matter, please advise. Please note that time is of the essence with respect to resolving
this matter by agreement. I look forward to your prompt reply.
Very tr4ly y ,
M I
MLK/mlk
cc: Salem Commission on Disabilities
Attention: Jean Levesque, Salem City Hall
Thomas St. Pierre, Building Inspector
Robert and Pamela Stavis
Gargiulo/Rudnick,LLP
Attorneys at Law
Gargiulo Rudnick,LLP Boston Cape Cod
Attorneys at Law 66 Long Wharf 766 Falmouth Rd, Unit A-6
Boston,MA 02110 Mashpee,MA 02649
www-grglaw_Corn www grglaw com
t 617 742 3,333 t 508 4 77 0400
f 617 523 7834 f 508 477 0455
Mantihse Kelly'
mlk@grglaw.com
Boston
Also admitted in
NV and NH
May 28, 2008
BY FAX—978-744-9327
and CERTIFIED MAIL
ARTICLE NO.: 7006 3450 0000 1847 3662
Elizabeth Rennard, City Solicitor
City of Salem
City Hall
93 Washington Street
Salem,MA 01970
SETTLEMENT DEMAND PRIOR TO
COMMENCEMENT OF ACTION
Re: Application for Criminal Complaint— Robert and Pamela Stavis
Dear Ms. Rennard:
This office represents Mr. and Mrs. Robert Stavis in connection with their efforts
to secure permitting to allow them to retain use of a chairlift at their condominium at the
Weatherly Drive Condominiums located at 69 Weatherly Drive, Salem Massachusetts.
The City of Salem, through its building inspector, has filed an application for criminal
complaint against Mr. Stavis for failure to remove the chairlift pursuant to his order. As
you may be aware, the chairlift is used by Pamela Stavis due to the fact that she suffers
from a degenerative and disabling condition, Muscular Dystrophy, which severely
impairs her ability to ambulate. Itis the Stavises contention that seeking a criminal
complaint and/or otherwise failing to issue permits for the chairlift constitutes unlawful
discrimination against a handicapped person in a violation of M.G.L.c. 15113 §1 et seq. t
The Stavises are seeking to resolve this matter by agreement with the City in an effort to
obviate the need to file a formal MCAD complaint against the City of Salem and/or
otherwise engage in litigation,
I ht framing;the issues in this settlement demand in terms of unlawful handicap discrimination under
M.G.Uc. 151 13, the Stavises do not waive any other Icgal rights and remedies that may be ivnilable to them
under state or federal law.
IWSTAVIS,ROtrli0."nM1.K Lmmr e'rown(sculauen:C<mandf OB052]Joc
r
May 28, 2008
Page 2 of 5
As you are aware, the City of Salem is subject to litigation for handicap
discrimination under M.G.L.c. 151 B. See M.G.L.c. 151 B § (defining "person" subject
to liability for handicap discrimination to include all political subdivisions of the
Commonwealth). Handicap discrimination is prohibited in virtually all public and
private housing settings, including condominiums, such as the one at issue. See e.g.
M.G.L.c. 151B §1 (9) (defining regulated "housing" and "housing accommodations");
10(b)(defining regulated housing to include housing in multiple dwelling financed or
insured by federal government); §1 (10)c (defining regulated housing to include housing
contiguous to public streets); 15IB §I (11) (regulating"multiple dwellings"). In addition
to those specifically enumerated housing arrangements covered by M.G.L.c. 151B, there
is a"catch-all" provision in 151E §1 (13) which makes M.G.L.c. 151B applicable to "all
housing accommodations not specifically covered under subsections 10, 11 and 12 which
are directly or though an agent made generally available to the public for sale or lease or
rental . . "M.G.L. 151B §1 (13.). The Weatherly Drive Condominiums are regulated by
those provisions of the statute which prohibit handicap discrimination.
Unlawful housing practices are enumerated in M.G.L.c. 151B §4A. In pertinent
part, under M.G.L.c. 15I B §6 it is unlawful " . . . .to withhold from any person or group
or persons such accommodations . . . .because such person is blind, or hearing impaired,
or has any other handicap or(b)to discriminate against any person . . . because such
person is blind, or hearing impaired, or has any other handicap, in the terms conditions or
privileges of such accommodations or the acquisitions thereof, or in the furnishing of
facilities and services in connection therewith . . ." M.G.L.c. 15 IB §6, For the purposes
of this subsection, discrimination on the basis of a handicap includes, but is not limited to
" . . . a failure to design and construct such dwellings in a manner that(i) the public use
and common use portions of such dwellings are readily accessible and usable by
handicapped persons" 151B 4 (6) (i). Additionally, "all premises within such dwellings
must contain the following features of adaptive design: (a) an accessible route into and
through the dwelling . , . ." 151B sec. 6 (iii) (a).
The statute further provides that" . . . [Discrimination on the basis of a handicap
shall include, but not be limited to: (1) a refusal to permit or make, at the expense of
the handicapped person, reasonable modification of existing premises occupied or to
be occupied by such person if such modification is necessary to afford such person
the full enjoyment of such premises . . . . "M.G,L.c. 151B §7A (1) (emphasis added).
The statute states that handicap discrimination shall include a"refusal to make
reasonable accommodations in rules, policies, practices or services which such
modifications may be necessary to afford a handicapped person equal opportunity
to use and enjoy a dwelling." M.G.L.c. 151B §7A (2) (emphasis added). M.G.L.c. 151
B "reasonable accommodation shall include, but not be limited to, making the housing
accessible to mobility-impaired . . .persons." M.G.L.c. 151B §7A (3). This provision of
the statute references "installing a wheelchair lift" as a reasonable accommodation, but
states that the owner of the premises shall not be required to pay for the installation of a
wheelchair lift. M.G.L e. 151B §7A (3). Accommodations are not "reasonable" in the
event"it would impose an undue hardship upon the owner or other person having the
right of occupancy . . .... M.G.L.c. 151B §7A (3). The Stavises contend that the
Gargiulo/f1winitk,LLP
Attorneys at LjN
May 28,2008
Page 3 of 5
wheelchair lift constitutes a reasonable accommodation that is necessary for Mrs. Stavis
to have the full enjoyment of her residential premises. Moreover, it is essential to ensure
her ability to safely egress the building particularly in the event of an emergency.
Furthermore, there is no "undue hardship" imposed on any person as a result of the
existence and/or use of the wheelchair lift. The installation was, in fact, approved by the
Weatherly Drive Condominium authority prior to the Stavises purchase of the premises.
The statute provides it shall be an unlawful practice "For any person to coerce,
intimidate, threaten, or interfere with another person in the exercise or enjoyment of any
right granted or protected under this chapter . . . " M.G.L..c 151 B §4A. The Stavises
contend that the City of Salem's application for criminal complaint against Mr. Stavis
flowing from his failure to remove the wheelchair lift constitutes intimidating and
coercive conduct by the City which is prohibited by this provision of the anti-
discrimination statute.
As 1 believe the City of Salem is aware, the Stavises sought (and obtained)
permission from their Condominium Association prior to purchase of the condominium
unit. Further, they sought an obtained approval from the City of Salem Building
Inspector prior to purchasing the unit. As I understand the chronology, it was only after
the chairlift unit was installed, that the Building Inspector determined that there was a
technical violation of the State Building Code causing him to revoke his permission and
institute a petition for variance before the State Building Code Appeals Board. The
Board also granted the Stavises relief but that decision was later overturned by the
Massachusetts Appeals Court on a procedural issue of whether the Stavises pro se appeal
was timely commenced. The Stavises contend that they reasonably relied upon the
initial decision of the Building Inspector and that the City of Salem should be estopped to
deny the permission it initially granted.
The Stavises have been involved in protracted and vexatious litigation with two
owners or occupants in their condominium unit related to the issue of the chairlift. The
issue of whether M.G.L.c. 151 B requires that the chairlift be permitted by the Town has
never been adjudicated in any forum. The only issue ultimately adjudicated was whether
the Stavises appealed to the State Building Board of Appeals was timely commenced.
No court or administrative body has ever adjudicated the issue of whether Mrs. Stavis is
the victim of handicap discrimination in violation of M.G.L.c. 151 B. Indeed, the State
Building Code of Appeals has no jurisdiction to address matters of handicap
discrimination under M.G.L.c. 151B. Accordingly, any MCAD complaint against the
City of Salem is not barred by principles of res judicata or issue preclusion.
Additionally, the Stavises contend that any MCAD complaint that they institute
against the Town of Salem is timely commenced. There is an on-going and continuous
pattern of discrimination against the Stavises by the City of Salem in failing to issue a
permit to allow the wheelchair lift to remain on the premises. Indeed, the City of Salem
has embarked on an additional discriminatory course in bringing an application for
criminal complaint against the Stavises for an alleged violation of the Massachusetts
State (Building Code.
Gargiulo/Rudnick,LLP -
Artomeys at Law
IN
May 28, 2008
Page 4 of 5
Both the MCAD, as well as the Massachusetts Superior Court are empowered to
issue restraining orders to stop discriminatory conduct that violates M.G.L.c. 151 B. The
application for criminal complaint is scheduled to be heard in Salem District Court on
June 25, 200&. In the event this matter is not resolved by agreement prior to that date,
the Stavises will seek to restrain the City of Salem from pursuing any criminal complaint
against the Stavises and, in fact, will seek an affirmative injunction requiring the City of
Salem to permit the ehairlift and allow its presence.
As you may be aware, both the MCAD and the Superior Court are empowered to
award damages, as well as attorneys fees to the Stavises as a result of the unlawful and
discriminatory conduct on the part of the City of Salem. Since 2002, the Stavises have
incurred, and continue to incur, substantial attorney fees and costs addressing these
issues. Preparing to defend against the application for criminal complaint has caused
further financial hardship and distress to the Stavises.
It is the Stavises contention that granting them relief is not only the legally correct
decision, but is also the morally correct decision. The City of Salem should not be an
instrument of any form of handicap discrimination. The Stavises have been and continue
to be good neighbors within the City of Salem and should not be compelled to leave their
home as a result of the discriminatory treatment by the City of Salem in denying Mrs.
Stavis reasonable accommodations as a handicapped person.
On behalf of the Stavises, I respectfully request the following relief:
I) Immediate withdrawal, with prejudice, by the City of Salem of all
applications for criminal complaints against the Stavises;
2) Issuance nun pro tune of all requisite permits for the ehairlift
Should you require any additional information to facilitate your review of this
matter, please advise. Please note that time is of the essence with respect to resolving
this matter by agreement. I look forward to your prompt reply.
Very tty y :s, ,
a
M r � �1
MLK/mlk
cc: Salem Commission on Disabilities
Attention: Jean Levesque, Salem City Hall
Thomas St, Pierre, Building Inspector
Robert and Pamela Stavis
GaTgWfOi Rudnick LLP
Attorneys at Law
LAW OFFICE OF CARL D. GOODMAN
152 Lynnway—Suite IE
LYNN,Massncxusez-rs 01902
781-593-2016— 781-639-8100
781-592-1129 facsimile
carl@attonzeygoodman.com
Carl D. Goodman
.f
September 30, 2005
Clerk's Office—Civil HAND FILED
Essex Superior Court
34 Federal Street
Salem MA 01970
RE: Irving Gordon et al v. Commonwealth of Massachusetts Board of Building Code
Appeals
Essex Superior Court Civil Action ESCV20000808
To the Clerk:
Enclosed for filing please find Memorandum of Law of Defendant-Stavis in Opposition to
Plaintiffs' Motion for Judgment on the Pleadings.
Very trultGO=MaAN—��
CDG:hbs
Enclosures
Assistant Attorney General Annapurna Balakrishna
Harold M.Mack, Esq.
Stuart M. Holber,Esq
L.,Mr. Thomas St. Pierre
Mr. and Mrs. Stavis
{
a -
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS: SUPERIOR COURT DEPT.
OF THE TRIAL COURT
Civil Action#ESCV2003-00808
IRVING GORDON and
HAROLD MACK
PLAINTIFFS
-v- ,
COMMONWEALTH OF MASSACHUSETTS
STATE BUILDING CODE APPEALS BOARD
and
PAMELA STAVIS
DEFENDANTS
MEMORANDUM OF LAW OF DEFENDANT-STAVIS IN OPPOSITION
TO PLAINTIFFS'MOTION FOR JUDGMENT ON THE PLEADINGS
STATEMENT OF THE CASE
This action was commenced on April 22, 2003 by the filing of the Complaint to Vacate
Decision of State Building Code Appeals Board. The action seeks to set aside a decision of the
State Building Code Appeals Board granting a variance to Pamela Stavis,the original applicant,
who suffers from Muscular Dystrophy,for the maintenance of a chairlift in a stairway in her
condominium building in Salem. A Summons with a purported Proof of Service of Process was
filed on May 12,2003 [Docket Entry#2]. Service was made by certified mail on the
Commonwealth of Massachusetts State Building Code Appeals Board(hereinafter the"State
Board'). An Answer of the State Boar$was docketed on June 9, 2003. On July 25, 2003,
plaintiff's Amended Complaint was docketed. The Certificate of Service attached to the Amended
Complaint indicated service by first class mail on the State Board's attorney(Special Assistant
Attorney General). On September 3, 2003,the plaintiff filed their Second Amended Complaint.
The Certificate of Service attached to the second Amended Complaint certified service by first class
mail on the State Board's attorney(Special Assistant Attorney General). No service was ever made
on the City and Pamela Stavis,the original applicant, was not served until 2005.
Law Office of
Carl D.Goodmm
152 L, wq
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01902
781.598.2016
1
Thereafter, the Administrative Record was filed by the State Board, a Motion to Present
Evidence of Irregularities in Procedures and to Present Additional Evidence was filed by the
plaintiffs and was denied without prejudice. A Supplemental Transcript was filed on June 10, 2004
and on July 12, 2004 the plaintiffs filed their Motion for Judgment on the Pleadings.
Correspondence from the Special Assistant Attorney General to Judge Whitehead was docketed on
October 4, 2004 and on October 4, 2004 the Court vacated the decision of the State Board and
Judgment entered on October 27, 2004 on the grounds that the appeal to the State Board was not
timely filed by the original applicant.
On March 8,2005,Pamela Stavis filed a Motion to Intervene, Vacate Judgment and
Dismiss. On May 5,2005,the Court(Lowy, J.) allowed so much of the motion as sought
intervention. On June 7, 2005,the Court(Lowy, J.) allowed the Motion to Vacate and denied the
Motion to Dismiss.
On September 1, 2005 the Court ordered that the matter proceed on the previously filed
Plaintiffs' Motion for Judgment on the Pleadings.
This is the opposition of the Defendant-Intervenor, Pamela Stavis.
ISSUES PRESENTED
1. Whether the Decision of the State Building Code Appeals Board granting a variance to
Pamela Stavis to maintain the previously installed chairlift was supported by substantial evidence.
2. Whether the Complaint should be dismissed due to the plaintiffs' failure to serve process
within the time permitted by Mass. R.Civ.P. Rule 40) and/or pursuant to Mass. R. Civ. P 12(b)(1)
and(6)for Lack of Standing by the Plaintiffs.
Lsv Office of
Cad D.Gaod
155my
2 LyA
019 -
LMA
01902
781-593-2016
2
L The Decision of the State Board Is Supported By Substantial Evidence
As set forth below,the record reflects that the Board's decision was supported by substantial
evidence including,but not limited to,testimony of the City of Salem Building Inspector and the
condominium association manager as well as a report from the City of Salem Fire Department
Captain. All of the testimony supported the requested variance and indicated that the continued
maintenance of the chairlift would not present a safety hazard. In addition,the Building
Commissioner testified that the City Fire Marshall who had been in office at earlier stages of the
proceedings had also found no safety hazard.
As the record reflects, the chairlift allows Ms. Stavis to safely enter and exit her apartment.
When not in use and in the folded up or closed position, it is a minor intrusion into the stairway.
When in use, it does not prevent passage although it does narrow the remaining available
passageway. As the fundamental substantive issue urged by the Plaintiffs at the Board Rehearing
was safety, the emergency exit from the building is the obvious focus. Although the record does not
reflect testimony on the alternative use of the stairway by Ms. Stavis, the dimensions of the chairlift
clearly indicate and the Board may well have inferred that the chairlift when in use is less of an
obstruction than an individual proceeding very slowly down stairs using two crutches or being
assisted by another individual. Even the Plaintiffs have not suggested that Ms. Stavis should not be
allowed to use the stairwell in case of an emergency.
Analysis of the Plaintiffs Six Grounds for Vacating the Decision of the Board.
Timeliness of Appeal to State Agency
Plaintiffs' first claim is that the variance application filed with the agency by Stavis was not
timely. The"order"' from which Stavis sought a variance by the State Building Code Appeals
Board was never served. As such,the time for appealing to the Board did not begin and therefore
could not expire.
The"Order"is an undated letter that states, inter alio,that "The chairlift needs to be removed as early as possible."
�w ora ar There is no directive to the recipient. As such,in addition to the lack of proper service by the Building Department,it is
�I D.c d-- not an"order."
152 Lpm Y
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01902
791-593-2016
3
780 CMR 122.1 provides in pertinent part:
In the event an appeal is taken directly to the State Building Code Appeals Board
from an interpretation, order,requirement or direction, said appeal shall be filed as
specified in 780 CMR 122.3.1 with the State Building Code Appeals Board not later
than 45 days after the service of notice thereof of the interpretation, order,
requirement or direction. [Emphasis added]
The time for appeal to the State Board runs from"service of notice"of the interpretation,
order,requirement or direction.
The letter from the Building Commissioner notifying Mr. and Mrs. Stavis of the Acting
Building Commissioner's changed interpretation was not served 2,but rather it was mailed by first
class mail and set no specific date for compliance.
780 CMR 118.2 provides:
118.2 Notice of violation The building official shall serve a notice of violation or
order on the person responsible for the erection, construction, alteration, extension,
repair,removal,demolition or occupancy of a building or structure in violation of the
provisions.of 780 CMR, or in violation of a detail statement or a plan approved
thereunder,or in violation of a permit or certificate issued under the provisions of
780 CMR. Such order shall be in writing and shall direct the discontinuance of the
illegal action or condition and the abatement of the violation. [Emphasis added]
780 CMR 118.2 requires service of notice of violation or order.
The specific methods of service of order of the Building Commissioner are set forth in 780
CMR 118.6 that provides:
Notice or orders, service and content
Every notice or order authorized by 780 CMR shall be in writing and shall be served
on the person responsible:
1. personally,by any person authorized by the building official; or
2.by any person authorized to serve civil process by leaving a copy of the order or
notice at the responsible party's last and usual place of abode; or
3.by sending the party responsible a copy of the order by registered or certified
mail return receipt requested,if he is within the Commonwealth; or
4.if the responsible party's last and usual place of abode is unknown,by posting a
copy of this order or notice in a conspicuous place on or about the premises in
violation and by publishing it for at least three out of five consecutive days in one or
2 See Affidavit of Building Commissioner,Thomas St.Pierre,p.1,lines 1-11,filed with Stavis'Motion to Intervene,
Lew Off"of Vacate Judgment&Dismiss Complaint. It is noteworthy that Plaintiffs acknowledge raising the issue of timeliness
C.1 D.G.a before the state agency,but did not offer any evidence of service in conformity with 780 CMR 118.2.
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more newspapers of general circulation wherein the building or premises affected is
situated.
780 CMR 118.6 mandates personal service, sheriff or constable service, certified or
registered mail,or posting if the responsible party's last and usual place of abode is unknown. First
class mail is not service for purposes within the meaning of 780 CMR 118.
As the underlying letter was not served and the Plaintiff has not set forth proof of service in .
conformity with the requirements of 780 CMR 118.6, the time for claiming an appeal did not begin
to run, the Plaintiffs did not prove their claim of lack of timeliness, and the Board had authority to
act at any time.
Failure to Obtain a Building Permit
Plaintiffs' second claim is that the chairlift was installed without a Building Permit. No
order was issued by the Building Commissioner relating to the failure of Stavis to obtain a Building
Permit. The Plaintiffs have not put forth any evidence indicating that the Building Commissioner
was requested to issue an order relative to the failure to obtain a Building Permit or that he ever
issued any such order sua sponte. As the Plaintiffs have not appealed from the Building
Commissioner's failure to issue an order relative to the building permit,the issue was not properly
before the agency. The Building Commissioner testified that he would issue a permit. [Rehearing
Transcript(7-15-03) p.6] Further,Plaintiffs cite no law to support a claim that the failure to obtain
a building permit mandates that the State Building Code Appeals Board deny a variance application.
Notice of February 25, 2003 Hearin¢
Plaintiffs' third claim is that they were not given timely notice of the February 25a'hearing.
According to the Plaintiffs' "Procedural History,"after the Board had already sent out hearing
notices,the Plaintiffs requested notice of the hearing date. After becoming aware of the scheduled
hearing and filing a request for postponement and not having received any indication that the
hearing would be postponed,neither plaintiff nor counsel appeared at the hearing.
Notwithstanding Plaintiffs' failure to appear at the original hearing, the Board granted
Plaintiffs' motion to intervene and for rehearing. The Plaintiffs acknowledge receipt of a timely
notice of the rehearing. Although the Plaintiffs allege irregularities in the conduct of the rehearing
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(discussed below), any alleged defect in notice of the first hearing was remedied by granting the
rehearing.
Alleged Unlawful Procedure at the Rehearing
Plaintiffs' fourth claim is comprised of four(4) sub-issues.
Sub-Issues 1-3
The first three sub-issues raised by the Plaintiffs as constituting unlawful procedure are
issues relating to substantive subjects that the Plaintiffs sought to raise at the rehearing. The first
sub-issue related to the claim that the application to the Board was not timely, the second as to why
the Building Inspector reversed his own decision, and the third as to whether the chairlift was
Stavis' primary means of ingress and egress. The first issue has been discussed previously. The
second issue is not relevant to he Board's determination as to whether a variance ought to be
granted. The official's motivation or state of mind is not a criteria set forth in 780 CMR 122.2 that
sets forth the standard for varying the application of any provision of 780 CMR in any particular
case. The third issue of whether the chairlift would provide primary access or egress is similarly
not a criteria set forth in 780 CMR 122.2.
Sub-Issue 4
The fourth sub-issue advanced by the Plaintiffs is whether the chairlift undermines the safety
and health of the plaintiffs. This is the fundamental issue for the Board of Appeals: whether the
Building Code can be varied without conflicting with the general objectives of the law.
Although the Plaintiffs had adequate notice of the rehearing, attended in person and with
counsel, and participated in the hearing,the Plaintiffs' expert evidence offered to corroborate their
generalized claim that the chairlift presented a safety hazard was limited to the introduction of
measurement of the stairway and chairlift by an engineer. [Rehearing Transcript(7-15-03)pp. 15]
Not only was the engineer not called as a witness,no report containing an opinion of the engineer
was submitted. Other than measurements, Plaintiffs offered no expert testimony on the fundamental
issue of safety. In contrast,the Board received evidence from the Building Commissioner and from
the City of Salem Fire Department. The City Building Inspector and the former Fire Marshall,
Charles Catulo,who had inspected the chairlift while in office, as well as the then incumbent Fire
Captain Hudson all found that the chairlift did not present a safety hazard. [Rehearing Transcript(7-
15-03)pp. 28-29]
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The Board did not exclude the testimony of any expert witnesses and clearly understood the
Plaintiffs' claim that when the chairlift was in use that it narrowed the stairway opening. The
record of the rehearing is replete with efforts by the Plaintiffs to raise issues that did not bear
directly on the substantive question before the agency. The hearing officer had discretion to limit
the examination of witnesses in light of the Plaintiffs' attempts to sidetrack the hearing and so as to
create a record for appeal rather than addressing the substantive issue of whether the variance would
be appropriate under the applicable standard. That a particular ruling may have been in error or
that the Board may have become impatient with the hearing tactics of the Plaintiffs, even if true,
does not render a decision invalid. Rather,it is the whether upon consideration of the entire record
there is a showing that substantial rights have been prejudiced where the decision is not supported
by substantial evidence. Salisbury Water Supply Co. v.Dept. of Public Utilities, 344 Mass 716,
719 (1962). The Hearing Officer is entitled to control the hearing and define issues. 801 CMR
1.02. The Chairman specifically directed that he wanted to get past procedural issues and focus on
safetyissues. [Rehearing Transcript(7-15-03)p.l l at¶l l] Having been allowed to present
witnesses and submit documentary evidence and to have participated fully in the rehearing , any
one of the alleged errors and all of the alleged errors in combination, even if any are found to be
valid,have not prejudiced the substantial rights°of the Plaintiffs and are at worst harmless error.
City of Boston v. M.C.A.D.,47 Mass.App.Ct. 816 (1999).
The Decision Is Supported by Substantial Evidence
Plaintiffs' fifth claim is the Decision is not supported by substantial evidence. As
previously discussed,the agency received testimony and documentary evidence from which it could
and did reasonably conclude that Ms. Stavis' chairlift did not present a safety hazard. The evidence
received by the agency included opinions from the Condominium Association manager,Ms. Stavis,
the City-Building Commissioner,the City Fire Marshall and the City Fire Captain, all of whom
opined that the chairlift did not present a safety hazard. The members of specialty boards are also
permitted to draw upon their own knowledge and expertise. Salisbury Water Super Co.v.Dept. of
3 The transcript of the Rehearing held on July 15,2003 demonstrates that not only did the Plaintiffs fully participate in
the hearing,but also Attorney-Plaintiff Mack and Attorney Holber dominated the hearing.
Law ofr�of °As argued below,the Plaintiffs lack standing and therefore have no substantive rights in this proceeding.Nevertheless,
r o.� Plaintiffs were afforded status as Intervenors at the agency level and fully participated.
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Public Utilities, 344 Mass 716, 721-722 (1962); Lisbon v. Contributory Retirement Appeals Board,
41 Mass.App.Ct. 246, 257 (1996).
The Plaintiffs offered their evidence that they believed that the chairlift when open or closed
presented a safety hazard. Mr. Mack testified about his concerns in detail even raising issues of his
grandchildren's use of the stairs. [Rehearing Transcript(7-15-03)p.19] Upon conflicting opinions
and evidence,the agency is entitled to great deference on questions of fact and reasonable
inferences drawn therefrom. Lisbon v. Contributory Retirement Appeals Board,41 Mass.App.Ct.
246, 257 (1996); Flint v. Commissioner of Public Welfare, 412 Mass. 416,420(1992).
The Plaintiffs disagree with the agency's findings and conclusions. The disagreement does
not render the agency decision lacking in substantive basis. To the contrary,the Board unanimously
adopted the opinions of the condominium property manager, the Building Commissioner, the Fire
Department officials and the applicant. Where an agency has made a choice between conflicting
views and the agency's selection reflects reasonable evidence, a Court should defer to the agency.
Lisbon v. Contributory Retirement Appeals Board,41 Mass.App.Ct. 246,257 (1996).
After the close of the hearing, Board Member Hoyle moved that the Board"uphold the
decision that we made on March 24th [granting the variance]. We do have one additional piece of
information that we did not have at the time and that is now that the Salem Fire Department has
weighed in with a written communication that they go along with the installation of the stairwell is
not endangering the public safety." The Board then voted unanimously in favor of the motion.
[Rehearing Transcript(7-15-03)pp. 34-35]
Substantial evidence is such evidence as a reasonable mind might accept as adequate to
support a conclusion. Glover v. M.C.A.D., 64 Mass.App.Ct. 1104, 832 N.E.2d 20 (Table),2005
WL 1875544(Unpublished Disposition), citing School Comm. of Brockton v. Massachusetts
Commn. Against Discrimination, 423 Mass. 7, 11 (1996).
The Board heard expert testimony from the Buildings Commissioner and received reports of
approval of the variance request from the Fire Department. The condominium association that is
charged with the responsibility of common areas under G.L. c. 183A had approved the chairlift
installation. The evidence showed that there exists another primary means of entrance and egress.
All of this evidence along with the reasonable inferences to be drawn clearly amount to substantial
evidence upon which the members of the Board, also drawing from their own experience and
Lew office of knowledge,reached their Decision.
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The Decision is not Arbitrary, Capricious, An
Abuse of Discretion, or Otherwise Contrary to Law
The sixth ground advanced by the Plaintiffs is a broad claim that the decision is arbitrary,
capricious, an abuse of discretion or otherwise contrary to law. Most of the"examples"of the
alleged arbitrary and capricious nature of the decision are restatements of issues included in the first
five grounds. As these grounds have already been addressed,this section will focus on the new or
additional claims that Plaintiffs claim demonstrate arbitrariness, etc.
Among these additional examples are claims that a Board member consulted with another
state agency on a technical question and adopted an interpretation of what category of use the
subject proposal came within. Board members are free to interpret the law and there is nothing in
the record or suggested by the Plaintiffs that compels a conclusion that the interpretation was either
incorrect or prejudiced the decision.
The Plaintiffs allege bias by Board Member MacLeod. Mr. MacLeod did make a statement
after the evidence was closed indicating that he was troubled by the Plaintiffs' indifference to Ms.
Stavis' medical condition. The statement does not reflect bias. The Plaintiff cites no other example
by Mr. MacLeod at anytime during the hearing that would indicate any lack of fair consideration of
the evidence. Rather, after the evidence had been closed and demonstrated that every disinterested
public official who had reviewed the installed chairlift found no problem with it,Mr. MacLeod
candidly commented on what he perceived to be the Plaintiffs' callousness. The comment may
sting,but it does not show bias.
Plaintiffs object to the admission of correspondence from the Fire Marshall. The admission
of hearsay evidence is not grounds for reversal unless it is the only evidence. Amon v.
Commissioner of Dept. of Social Services,43 Mass.App.Ct. 33, 36 (1997). The Agency is not
bound by the rules of evidence. G.L. c. 30A, '11(2). Plaintiffs object that Plaintiff Gordon was not
allowed to testify as to his efforts to obtain an opinion from the local Fire Department. The efforts
of the witness to obtain an opinion are not relevant to the issue that was before the Board. As to the
claims that the Chairman apologized to Plaintiff Gordon,Gordon's affidavit is obviously self-
serving and still fails to address the fact that Gordon's proposed non-expert testimony on his own
efforts to secure an opinion would have been irrelevant and his non-expert opinion on safety would
Lw Ohm of be repetitive.
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i
Plaintiffs' complaint that the Decision ignores Official Interpretation No. 16-89 is
misplaced. If the Code permitted the installation of the chairlift as a matter of right, there would
have been no need for a variance. The State Building Code Appeals Board is empowered to grant
variances. If the Code was intended to be inflexible,the power granted by the Legislature and the
Department of Public Safety to grant variances would be meaningless. The power to grant
variances from the State Building Code is delegated to a specialty board. Courts give due weight to
the experience and specialized competence of such an agency. Amon v. Commissioner of Dept. of
Social Services,43 Mass.App.Ct. 33, 34(1997). The State Building Code Appeals Board is
comprised of members with technical knowledge and experience. G.L. c. 143, §§93, 100.
Finally,the Plaintiffs complain that the Decision is inconsistent with a goal of statewide
uniformity. Again, if uniformity was the only issue,there would be no variance power granted to
the Board.
SUMMARY OF ARGUMENT
The appeal to the State Building Code Appeals Board was timely as the time limit imposed
by the Code never began to run as the"order"was never served as required by the Code.
Any procedural and notice issues were overcome by the grant of the Rehearing and the
evidence that the Plaintiffs allege was excluded was not relevant. Any errors were harmless.
The Decision was supported by substantial evidence and was not arbitrary, capricious or
otherwise contrary to law.
The Decision of the State Board of Building Code Appeals should be affirmed.
H.The Complaint should be dismissed due to the plaintiffs' failure to serve process within the time
permitted by Mass. R.Civ.P. Rule 4(i) and/or pursuant to Mass. R. Civ.P 12(b)(1) and(6) for Lack
of Standing by the Plaintiffs.
A. Lack of Service or Timely Service
The plaintiffs were required to serve Pamela Stavis and the City of Salem Building
Commissioner with the original complaint in the manner provided for service of process according
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to the Rules of Civil Procedure. G.L. c. 30A §14(2). No such service was ever made on the City
and Stavis was not served until 2005.
Mass.R.Civ.P. Rule 40)requires service of process within ninety days of the filing of the
complaint. It is clear that service was not made on the originals parties to the State Board action
and that more than ninety days have elapsed since the filing of the complaint and filing of both
amended complaints.
In applying Mass.R.Civ.P. 40), Massachusetts courts have been guided by judicial
interpretation of the parallel Federal rule because it"is nearly identical to its Massachusetts
counterpart." Shuman v. The Stanley Works, 30 Mass.App.Ct. 951,952 (1991). The motion is
addressed to the discretion of the trial judge who may either allow the motion,thereby dismissing
the action without prejudice, or simply quash service of process and order new service." Siodis v.
Spate, 1999 Mass.App. Div. 148, 149 (Mass. App. Div.N. Dist. 1999). See Stevens v. Bradlees,
Inc., 1995 Mass. App. Div. 9, 11 (Mass. App. Div. N. Distr. 1995). See also G.L. c. 223 § 84.
Notably,"[t]he burden is on the plaintiff to show `good cause' why service was not made within the
time period required by the rule." Shuman, 30 Mass.App.Ct. 951, 953 citing Winters v. Teledyne
Movible Offshore, Inc., 776 F.2d 1304, 1305 (5th Cir. 1985),Rivera v. Nissan Mfg Co., 788 F.2d
819, 821 n. 2 (1st Cir. 1986).
"'Good cause' has been defined as `a stringent standard requiring diligen[t]' albeit
unsuccessful effort to complete service within the period prescribed by the rule." Shuman, 30
Mass.App.Ct. 951, 953 citing Davis-Wilson v. Hilton Hotels Corp., 106 F.R.D. 505, 509 (E.D. La.
1985). "No longer is dismissal of a Complaint allowed only upon a showing of prejudice to the
defendant; an unfair tactical advantage to the plaintiff;or harassment of the defendant." Lawrence
v. Emma, 1997 Mass. Super. LEXIS 190, 7 (Mass. Superior Ct. 1997). "The focus of the court's
inquiry is the reasonableness and diligence of counsel's effort to effect service within the time
required." Shuman, 30 Mass.App.Ct. 951, 953 citing Ouann v. Whitegate-Edgewater, 112 F.R.D.
649, 659 (D. Md. 1986). In cases of a delay in service, "[t]he weight given it depends upon how
reasonable the delay is in the context of the over-all circumstances and, in particular,the
reasonableness and diligence of the plaintiffs efforts to effect service in a timely manner."
Commissioner of Revenue v. Carrigan,45 Mass.App.Ct. 309 (1998). "In cases where a [c]omplaint
has been dismissed pursuant to Mass. R. Civ. P. 40), there has been a blatant lack of reasonableness
and diligence regarding counsel's effort to effect service within the time required."Lawrence v.
Law. of
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Emma, 1997 Mass. Super at 8. See Shuman, 30 Mass.App.Ct. 951 (defendant was finally served 6
months after complaint was filed); Hull v. Attleboro Savings Bank, 33 Mass.App.Ct. 18
(1992) (defendant was finally served more than three years after complaint was filed); Kubik v.
Streule, 197 Mass. App. Div. 176 (Mass. App. Div.N. Distr. 1997)(defendant was finally served
128 days after complaint was filed).
While the plaintiff must show good cause,"'[g]ood cause' may[also] arise from the
defendant's conduct... `Good cause' has been found where a defendant, although not properly
served,participated in the case and waited until after the expiration of the statute of limitations to
file a motion to dismiss under Rule 40)... The court therein reasoned that by delaying his motion,
the defendant may have misled the plaintiff into thinking he would not pursue a defense under Rule
40)." Stevens v. Bradlees, Inc., 1995 Mass. App. Div. 9, 11 (Mass. App. Div.N. Distr. 1995).
Good cause has also been found where a defendant"was in large measure responsible for the very
insufficiency of service [they] now claim as a basis for dismissal" and where"[t]he plaintiff acted
reasonably and in apparent good faith in relying on"the representations of a defendant. Siodis, 1999
Mass. App. Div. 148, 149.
None of these factors is present here. Rather, the plaintiffs, one of whom is an attorney and
both of whom are represented by counsel, disregarded the clear statutory requirements for service.
Further,the plaintiffs themselves demanded that the underlying State Board decision be vacated due
to an alleged issue of timeliness. It is not unreasonable to expect them to cut their comers squarely.
B. The Plaintiffs Lack Standing
780 CMR 122.6 provides: Appeals from State Building Code Appeals Board
Any person aggrieved by a decision of the State Building Code Appeals Board may
appeal to a court of law or equity in conformance with M.G.L. c. 30A, § 14.
In Ginther v. Commissioner of Ins.,427 Mass. 319 (1998),the Court addressed the issue of
standing to claim an appeal pursuant G.L. c. 175, § 206D (f)(1). Comparable language to that
contained in G.L. c.30A is contained in G.L. c. 175, § 206D(f)(1)that provides in part: "Any person
aggrieved by any act,determination,rule,regulation,or order or any other action of the
Lawo�aaor commissioner pursuant to sections two hundred and six to two hundred and six D, inclusive,may
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appeal therefrom to the superior court department of the trial court for Suffolk county." To qualify
as a'person aggrieved,' a person must allege substantial injury as the direct result of the action
complained of. Alleging injury alone is not enough; a plaintiff must allege a breach of duty owed to
it by the public defendant. Ginther v. Commissioner of Ins.,427 Mass. 319, 322-323 (1998). Mere
participation in the administrative process does not confer standing to raise a claim in the Superior
Court. Ginther, at p.324.
In Circle Lounge& Grille v. Board of Appeal of Boston, 324 Mass. 427,429(1949),the
Court addressing the issue of standing in the context of an appeal under G.L. c.40A that permits
appeals by"'Any person aggrieved by a decision of the board of appeal"said: "But even if some
harm might be done to the plaintiff in the ways suggested,there is a more fundamental and more
comprehensive reason why we think the plaintiff is not a person aggrieved within the meaning of
the statute. Commonly a person aggrieved is one whose legal rights have been infringed." [citations
omitted].
The Supreme Judicial Court held in Berish v. Bornstein, 437 Mass. 252, 263 (2002)that
"[i]n keeping with this division of property ownership, condominium unit owners cede the
management and control of the common areas to the organization of unit owners, which is the only
party that may bring litigation relating to the common areas of the condominium development on
their behalf. G.L. c. 183A, § 10 (b) (4). See Strauss v. Oyster River Condominium Trust,417 Mass.
442,445,631 N.E.2d 979 (1994)("Only the trustees have the right to conduct litigation concerning
'common areas and facilities' ")."
The plaintiffs are owners/occupants of two condominium units of the same building in
which the plaintiffs condominium unit is located. The subject chair lift was installed in a common
egress stairway. [Complaint,$11-6, Stavis Affidavit filed with her Motion to Vacate, Intervene&
Dismiss,p.I In 2-4.1 The stairway is part of the Common Areas and Facilities. [See extract from
the Master Deed of the Weatherly Drive Condominium, §5B (p.4),Appendix to Stavis' Motion to
Vacate, Intervene&Dismiss, Exhibit"A."]
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The plaintiffs have alleged only that the"Decisions of the Appeals Board interfere with the
full and fair use of the common egress stairways as well as undermines the safety and health of the
Plaintiffs." [Second Amended Complaint,123.]
Plaintiffs have not alleged a substantial injury as the direct result of the action complained
of. All litigation involving the common areas is reserved to the Trustees of the condominium
association. Any claimed injury to the plaintiffs is speculative, remote and insubstantial.
Stavis raised the issue of standing in her Motion to Intervene, Vacate and Dismiss. The
claim of lack of standing was supported by evidence that the subject stairway was part of the
common areas and that those areas were not used exclusively by the Plaintiffs. Upon such
showing,the burden of proof shifted to the Plaintiffs to demonstrate standing. The Plaintiffs have
failed to meet that burden.
Accordingly,the Complaint should be dismissed pursuant to Mass.R.Civ.P. Rules 12(b)(1)
or Mass.R.Civ.P. Rules 12(b)(6).
SUMMARY
The Decision of the Board was supported by substantial evidence. Any alleged irregularities
in procedure are either without merit or harmless error. The Plaintiffs failed to serve the original
applicant in a timely manner and lack standing. The Decision is supported by substantial evidence
and should be affirmed.
PAMELA STAVIS
By her attorney:
September 30, 2005
CARL D.60ODMAN
152 Lynnway- Suite 1 E
Seaport Landing
Lynn,MA 01902
Tel: (781) 593-2016
BBO#201720
Lm
Md
Carl D.Goodin
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CERTIFICATE OF SERVICE
I certify that a true copy of the within document was served this day by first class mail,
postage prepaid,upon the following:
Assistant Attorney General Annapurna Balakrishna
One Ashburton Place—Room 2019
Boston, MA 02108
Harold M.Mack, Esq.
25 Kenoza Avenue
P.O. Box 909
Haverhill,MA 01830
Stuart M. Holber, Esq.
P.O. Box 909
Haverhill, MA 01830
Mr. Thomas St. Pierre
Building Commissioner
City of Salem
Public Property Department
120 Washington Street
Salem, MA 01970
Dated: September 30, 2005
CAR GOODM N
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STATE BUILDING CODE APPEALS BOARD INSTRUCTIONS Page 1 of 2
The Official Website of the Executive Office of Public Safetv ane Security(EOPSS)
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INSTRUCTIONS )
I
Please follow the instructions below when completing an Appeals Application.
1. Unless filing for a failure to act,the appellant must be in receipt of a denial letter from the
municipal or state building official as required in Chapter 1 of the State Building Code. An appeal must
be filed within forty-five(45)days of the date of the letter of denial. An appeal may be filed either
with the local Building Code Appeals Board,if one has been established, or directly with the State
Building Code Appeals Board.Also, an appellant may file an appeal relative to a building official's
failure to act on his\her permit application as provided for in Chapter 1 of the State Building Code(A
letter of denial is not required when filing for failure to act).
2.Two documents are required to be completed by the appellant or his/her representative when filing
an appeal. (Each is part of this document.)
3. PLEASE NOTE THAT EFECTIVE IMMEDIATELY,ALL BUILDING CODE APPEAL
APPLICATIONS MUST BE ACCOMPANIED BY A COMPACT DISC(CD)CONTAINING ALL
INFORMATIONS.
the Appeal Application Form®(2 pages)
and the Service Notice(1 page).
The Service Notice,which gives notice to the building official that an appeal is being filed, should
include the date appearing and the name and address of the building official under the section titled,
"PERSON/AGENCY SERVED".The Method of Service should list one of the following procedures as
set forth in Chapter 1 of the State Building Code for serving notice to the appropriate building
inspector.
A. Personally;or
B. Registered or Certified Mail, return receipt requested; or
C. By any person authorized to serve civil process.
The Date of Service is the date when a copy of the appeal is delivered or mailed to the building
official or other party entitled on the application.
The Service Notice must be signed by the appellant or his/her representative and the signature must
be notarized.
The Appeal Application Form (2 pages) must be completed in total. The application will be
reviewed for completeness prior to a hearing being scheduled.Applications determined to be
incomplete will be returned to the applicant for correction. Questions relating to completing the
application should be directed to your local building department or this office. Questions relating to the
process may be directed to the Appeals Board Hearing Coordinator @ (617) 727-3200 extension
25209.
3. One complete copy of the appeal filing, including the original Service Notice, must be delivered to
http://www.mass.gov/?pageID=eopsterminal&L=4&LO=Home&L I=Consumer+Protection... 2/21/2008
STATE BUILDING CODE APPEALS BOARD INSTRUCTIONS Page 2 of 2
the noted Building Official or the official entitled. Fourcomplete copies of the appeal filing, including
the original plus three copies of the Appeal Application form, four copies of the Service Notice and
four copies of the denial letter,together with a check for$150.00(filing fee)payable to the
Commonwealth of Massachusetts must be submitted to this office, if the appeal is made directly to
the State Building Code Appeals Board. (Fee requirements for filings before a local Building Code
Appeals Board may differ from the fees prescribed for submission to the State Building Code Appeals
Board. Please check with municipal building official for these fees.).
ALL CASES WILL BE HEARD ON THE SCHEDULED DATE.
POSTPONEMENTS MAY ONLY BE CONSIDERED IN EXTREME SITUATIONS WHERE
SUFFICIENT NOTICE HAS BEEN PROVIDED.
@ 2008 Commonwealth of Massachusetts Site Policies Contact U:
http://www.mass.gov/?pagelD=eopsterTninal&L=4&LO=Home&L 1=Consumer+Protection... 2/21/2008
r'
ZONING BOARD OF APPEAL
PETITION FORM
ouulr�q CITY OF SALEM,MASSACHUSETFS
'ZONING BOARD OF APPEAL
120 WASHINGTON S ILLT 3�+')FLOOR
,�— )5 E S\L I�A[,AL�SS.AU IUSEI IS 01970
.-1mp I.ash,Staff Planner Thomas Sr. Pierre,Building Inspector
c 978-619-5685/E 978-740-0404 r, 978-619-5641/F..978-740-9846
TO THE BOARD OF APPEAL:
The Undersigned represent that he/she is/are the owners of a certain parcel of land located at:
Address: Zoning District:
An application is being submitted to the Board of Appeal for the following reason(s): This statement roust
describe whal you propose to build, the dimensions, the?one property is in, and the zoning requirements. Example:
/an proposing to construct a 10'x 10'one story addition to illy home located at 3 Saleur Lane, in the K-2 Zoning
District. The Zoning Ordinance requires the mininuan depth of the rearyard to be 30jeet. The curreru depth ofmry
rear yard is 32 jeer;the proposed addition would reduce the depth of the rear yard to 22 feet.
For this reason I am requesting:
O Variance(s)from provisions of Section of the Zoning Ordinance,specifically from
(i.e. mini num depth of rear yard).
What is allowed is (ft?sq jt?stories? %?), and what I
am proposing is (ft?sq jt?.stories? %?).
O A Special Permit under Section of the Zoning Ordinance in order to
O Appeal of the Decision of the Building Inspector(described below):
The Current Use of the Property Is: Arc the lot dimensions included on the plan'?
(example: Two Family Home) ( ) Yes ( )No n/a because
The Undersigned hereby petitions the Board of Appeal to vary the terms of the Salem Zoning Ordinance and allow
the pro)ect to be constructed as per the plans submitted,as the enforcement of said Zoning By-Laws would involve
practical difficulty or unnecessary hardship to the Undersigned and relief may be granted without substantially
derogating from the intent and purpose of the Zoning Ordinance.
:0
ZONING BOARD OF APPEAL
PETITION FORM
The following written statement has been submitted with this application:
O For all Variance requests a written Statement of Hardship demonstrating the following must be attached:
a) Special conditions and circumstances that especially affect the land,building,or structure involved,
generally not affecting other lands,buildings,and structures in the same district;
b) Literal enforcement of the provisions of the Ordinance would involved substantial hardship to the
applicant; and
c) Desirable relief may be granted without substantial detriment to the public good,and without nullifying or
substantially derogating from the intent of the district or the purpose of the ordinance.
( ) For all Special Permit requests a Statement of Grounds must be attached. An application for a special permit for
a nonconforming use or structure shall include a statement demonstrating how the proposed change shall not be
substantially more detrimental than the existing nonconforming use to the neighborhood in accordance with Art. V,
§ 5-3. Such a statement should include reference to the following criteria: '
a) Social,economic,or community needs served by the proposal;
b) Traffic Flow and safety, including parking and loading;
c) Adequacy of utilities and other public services;
d) Impacts on the natural environment,including drainage;
c) Neighborhood character; and
f) Potential fiscal impact,including impact on City tax base and employment.
Previous applications to the Board of Appeals involving this property have been submitted with this petition
form. The building Commissioner can provide documentation ofprevious applications to the petitioner or his
representative.
If different than petitioner:
Petitioner: Property Owner:
Address: Address:
Telephone: Telephone: _
Signature Signature(Attached consent letter is also acceptable)
Date Date
lfdierent than petitioner:
A TRUE Representative:
ATTEST
Address:
Telephone:
Signature
Date
DATE SUBMITTED TO
BOARD OF APPEALS:
CITY CLERK
This original application most hefiled with the Citi;Clerk.
ZONING BOARD OF APPEAL
PETITION FORM
CITY OF SALEN4,1MASSACHUSETYS
ZONING BOARD OFAPPE'Al.
120 WASHINIGTON STEI_'I',31i1) FLOOR
SA].,f,.,%[,bL\SSACI-[USF'f'I'S 01970
Amy Lash,Stiff Planner Thomas St. Pierre,Building Inspector
r, 978-619-5685/f,978-740-0404 r.978-619-5641/t. 9719-740-9846
TO THE BOARD OF APPEAL:
The Undersigned represent that he/she is/are the owners of a certain parcel of land located at:
Address: Zoning District:
An application is being submitted to the Board of Appeal for the following reason(s): This statement must
describe what you ou propose to build, the dimensions, the zone property is at, and the zoning requirements. Example:
lani proposing to construct a 10'.T 10'one star addition to im,home located at 3&zleni Lane, in the R-2 Zoning
District. The Zoning Ordinance requires the nuninuon depth of the rear yard to be 30 feet. The current depth o/my
rear yard is 32 feet:the proposed addition would reduce the depth of the rear yard to 22 feet.
For this reason I am requesting:
O Variance(s)from provisions of Section-of the Zoning Ordinance,specifically from
(i.e. nuninium depth oft-caryard).
What is allowed is (ft?sq ft?stories? %?), and what I
am proposing is (f?sq ft?stories?%?).
A Special Permit Linder Section of the Zoning Ordinance in order to
O Appeal of the Decision of the Building Inspector(described below):
The Current Use of the Property Is: Are the lot dimensions included on the plan?
(eyample: Two Family Home) ( )Yes ( )No n/a because
rhe Undersigned hereby petitions the Board of Appeal to vary the terms of the Salem Zoning Ordinance and allow
the project to be constructed as per the plans submitted,as the enforcement of said Zoning By-Laws would involve
practical difficulty or unnecessary hardship to the Undersigned and relief may be granted without substantially
derogating from the intent and purpose of the Zoning Ordinance.
/0t
h - ZONING BOARD OF APPEAL
PETITION FORM
The following written statement has been submitted with this application: -
O For all Variance requests a written Statement of Hardship demonstrating the following must be attached:
a) Special conditions and circumstances that especially affect the land,building,or structure involved,
generally not affecting other lands,buildings, and structures in the same district;
b) Literal enforcement of the provisions of the Ordinance would involved substantial hardship to the
applicant and
c) Desirable relief may be granted without substantial detriment to the public good,and without nullifying or
substantially derogating from the intent of the district or the purpose of the ordinance.
( ) For all Special Permit requests a Statement of Grounds must be attached. An application for a special permit for
a nonconforming use or structure shall include a statement demonstrating how the proposed change shall not be
substantially more detrimental than the existing nonconforming use to the neighborhood in accordance with All. V,
§ 5-3. Such a statement should include reference to the following criteria:
a) Social,economic,or community needs served by the proposal;
b) Traffic flow and safety,including parking and loading;
c) Adequacy of utilities and other public services;
d) Impacts on the natural environment,including drainage;
c) Neighborhood character; and
f) Potential fiscal impact,including impact on City tax base and employment.
Previous applications to the Board of Appeals involving this property have been submitted with this petition
form. The Building Commissioner can provide documentation ofprevious applications to the petitioner or his
representlive.
!f different than petitioner:
Petitioner: Property Owner:
Address: Address:
Telephone: Telephone:
Signature Signature(Attached consent letter is also acceptable)
Date Date
Ifdifferent than petitioner: _
A TRUE Representative:
ATTEST
Address:
Telephone:
Signature
Date
DATE SUBMITTED TO
BOARD OF APPEALS:
CITY CLERK
This original application must be filed with the CUv Clerk.
CITY OF SALEM, MASSACHUSETTS
PUBLIC PROPERTY DEPARTMENT
120 WASHINGTON SrREET, 3RD FLOOR
it - lta SALEM, MASSACHUSETTS 01970
J P.StY TELEPHONE. 978-745-9595 EXT. 380
11..1p� FAX. 978-740-9846
KIMBERLEY DRISCOLL
MAYOR
February 12, 2008
Robert and Pamela Stavis
69 Weatherly Drive
Salem, Ma. 01970
Dear Mr. & Mrs. Stavis:
I have received notice from Superior Court regarding CV —ESCV 2003-00808-A.
The notice from the Superior Court affirms the Court's earlier decision that the chairlift is
a violation of the State Building Cade.
Therefore, you are directed to remove the chairlift from the common stairway within 30
days upon receipt of this notice. if you have any questions, please contact me directly.
Sincerely,
Thomas St. Pierre
Director of Inspectional Services
cc: Jason Silva, Mayors Office
Elizabeth Rennard, City Solicitor
Stuart Holber, Esq
Carl Goodman, Esq.
LAW OFFICES OF
----Stuart M-Holber; Esquire—
The Wingate Building
21 Wingate Street,Suite 101
Haverhill,MA 01832
Tel:(978)372-1171 Fax: (978)372-1.198 -
Email: sholber®holberlaw.com
January 29, 2008
Beth Rennard, Esquire
Solicitor, City of Salem
93 Washington Street
Salem, MA 01970
Re: Irving Gordon et al v. Mass. State Building Code
Superior Court Docket No. ESCV 2003-00808
Appeals Court Docket No. 2007-P-1730
Dear Attorney Rennard:
The undersigned is counsel for Irving Gordon and Harold Mackin the above-captioned matters.
As you may or may not be aware,my clients have been involved in protracted litigation seeking
the removal of an automated chairlift installed in July of 2002 by Pamela Stavis (hereinafter
referred to as "Stavin") in a common egress stairway at 63-73 Weatherly Drive (I believe Mr.
Mack met with you or a representative of your office in late Spring of 2006 to review the status
of the litigation at that time); A brief chronology of the events leading up to the present
establish:
1. On or about October 30, 2002, the acting Building Inspector for the City of Salem
notified Stavis that the installation of the.chairlift was in violation of the State Building
Code and had to be removed "as early as possible".
2. In August of 2003, upon Stavis' appeal, the Building Code Appeals Board (hereinafter
referred to as Appeals Board)granted a variance permitting the continued installation of
the chairlift .
3. In February of 2006,the Essex Superior Court sitting in Salem reversed the decision of
Appeals,Board and thus reinstating the October 30, 2002 order of the City of Salem
Building Inspector.
4. Stavis appealed the Superior Court's decision to the Appeals Court which rejected the
Appeal and affirmed the judgment of the Superior Court (a copy of the Appeals Court
decision is enclosed.) Note that the Appeals Board did not join in the appeal Note
Admitted.in Massachusetts and New Hampshire. -
Holber Esquire also admitted in Maine.32 Saco Avenue,
P.O.Box W,Old.Orchard,Maine 04064
Reply to HaverhillOffice Only
particularly,the Appeal Court's observation in its decision on Page six:"We note that the
assistant attorney General who represented the Board in the Superior Court
acknowledged by letter to the Motion Judge, after oral argument, that the Board may
have lacked jurisdiction to hear Stavis' appeal".
5. On November 29,2007,the Supreme Judicial Court denied Stavis'application for further
appellate review.
6. On December 4, 2007, upon rescript from Appeals Court, the Superior Court affirmed
its February 2006 Judgment which vitiated the Building Code Appeal Board's granting
of a variance (copy enclosed).
As a consequence of the foregoing litigation,it has been conclusively and finally determined that
the installation of the chairlift constitutes a continuing violation of the State Building Code. My
clients rightfully expect prompt action on the part of the City of Salem to affect its removal.
I will be pleased to discuss this matter as immediately as possible.
Very truly yours,
M. Holber
SMH:gdp
Enclosure
cc: Irving Gordon
Harold Mack
M:W=\LttigationWack\Rea d 012808.gdp.wpd
t
�kstlew
872 N,E,2d 794 Page I
70 Mass.App,Ct, 12,872 N.E.2d 794
(Cite as:70 Mass.App.Ct, 12,872 N.E,2d 794)
M i11 Health 199H D +392
Gordon v.State Bldg. Code Appeals lid.
Mass.App.0.,2007. 198"Health
198H11 Public Health
Appeals Court of Mxssachus<ts,EcsOx, 198Hk390 Unsafe or Unhcaithfil l Promises
.Irving GORDON&another IN' 198Hk392 k. Buildings, Structures, and
Building Components.Most Cited Cases
FN I. Ilarold Mack. Letter from State Building Commissioner to con-
v. dominium unit owner, directing that owner remove
STATE 80FUDINC CODt APPEALS BOARD chairlift in rear entrance of six-unit condominium
FN2 &another?"' building because the chairlift violated the State
building Code, was an appealable interpretation,
FN2. The State building code appeals order, requirement, or direction, thereby coninion-
board did not participate in the appeal. ting, upon service of notice, the 45-day time limit
for owner to filo an appeal to State Building C)odc
PN3.Pamela Stavis, intervener. Appeals Board, M.G.L.A.c. 143,§ 100.
No.00-P-695.
121 Administrative Law and Procedure 15A a
Argued March 5,2007. 669.1
Decided Aug.30,2007,
15A Administrative Low and Procedure
Background: Condominium unit owners 15AV Judicial Review of Administrative De-
sought judicial review of decision of Statc Building cisions
Code Appeals Board granting a variance from State 1SAV(A)In General
Building Code so that another condominium unit ISAk669 Preservation of Questions Be-
owner could install and maintain chairlift in roar fore Administrative Agency
entrance of six-unit condominium building. The Su- 15Ak669.1 k. In General. Most Cited
perior Court Department, Fssex County, Howard J- Cases
Whitehead, 1., 2006 WL 3256149, rvvcrsed. 11nil A party is not entitled to mise arguments on appeal
owner appealed, to the court that he could have raised, but did not
raise,before the administrative agency.
Holdings: 'flte Appeals Court, Cowin, J., held
that: 131 Health 198H x392
(1) letter Irom State Buitdinc Commissioner to 19NFl I1011th
owner started the rututing of 45-day time limit for 198111i Public Health
owner to tile an appeal to State Building Code Ap- 19811090 Unsafe or Unhealthful Promises
peals Board,and 198Hk392 k. Buildings, Structures, and
Building Components.Most Cited Cases
(2) defective service of notice of building code Defective service of notice of building code viola-
violation did not affect Board's jurisdiction to hear tion, i.e., State Building Commissioner used ordin-
tine appcal. ary mail rather Hiatt cortifred mail to send a letter to
condominium unit owner directing her to remove
chairlift in rear entrance of xix-unit condominium
Superior Court affirmed, building because the chairlill violated die Slate
Building Code, did not afitet the jurisdiction (if the
West I leadnotes
(b 2009 Thiunson/West.No Claim to Orig.U.S.Govt.Works.
--------------------------
872 N.6.2d 794 Page 2
70 Mass.App.Cl. 12,872 N.8,2d 794
(Che as: 70 Maas.App.Ct.12,872 N-F..2d 794)
State Building Code Appeals Board to hear owners was supported by substantial evidence. We agree
appeal from Commissioners directive. M.O.L.A. c, with the motion judge that Stavis's untimely filing
141 § 100;780 CMA 118.6, with the board deprived that agency of authority to
grant relief in the circumstances, and that. its de-
j41 Condominium 89A a17 cision granting a variance from the provisions of
the Slate building code must be vacated.
89A Condominium -
89Ak17 k. Actions.Most Cited Cases 1. Backgrourrd.The material history of the case
Condominium sturute, giving condominium assock is not disputed. Stavis acquired a second-floor unit
ations the exclusive power to conduct litigation to at the Salem condominium. Afflicted with muscular
protect unituwncrs' common rightq with respect to dystrophy, she oblumed the permission of the con-
common areas, does not prevent individual unit dominium devcloper to install a chairlifl in a coni-
owners from asserting claims relining to their indi- mmn stairwell leading to the rear exit of rho build-
vidual rights even though such claims may arise ing. She also received inrormal advice front the city
from something that takes place in it common arca. building department that the contemplated installa-
M.G.L.A. c. 183A, § 10(b)(4). tion would not offend the State building code.
"0794 Carl D.Goodman,Lynn, for flit intervener. Subsequent to installation of the chairlilt, the
•*795 Stuart M. tlolber for the plaintiffs. acting building commissioner wrote to Stavis and.
acknowledging that he had previouRly advised that
Present GLLINAS, COWIN,&GRAHAM.JL the chairlift installation was permissible, staled thut
he had since determined that the imiallution viol-
COW1N, J. aced the code and would have to be removed "aq
•12 'The plaintiffs, Irving Gordon and Harold soon as possible." The letter is undated. Ilowcver,
Mack, sought judicial review, sec G.I.- c. 10A, § the record slows that, on Oetobcr 30, 2002, the
14, of a decision of the defendant, the State build- building commissioner forwarded the letter to Stav-
ing code appeals board (the board), •13 wherein the is by regular mail WNW simultaneously faxing a
board granted the intervener, Pamela Stavis, a vari- copy thereof"14 to the condominium property man-
area from applicable pmvi.siuns of the State build- ager. and the board determined that notice, was in
ing code so that she could install and maintain a tact sent in October,2002!N'
chairlif) in the rear entrance of a slx-unit condumin-
num in Salem. A judge of the Superior Court al- FN4, On her appeal application form, Smv-
lowed the plaintiffs' motion for judgment on the is referred to the order in question as dated
pleadings, see Superior Court Standing Order 1.96, December 10, 2002. Nothing else in the re-
trad reversed the decision of the board on the cord suggests that anything relevant oc-
ground that Stavis had not appealed to the board curved on December 10, 2002, and she was
within the time allotted by U.L. c. 143, § 300. unable to explain the date when questioned
about It at die board hearing. The board
Stavis appealed, arguing that (1) her I'ailurc to permissibly relied on other evidence that
file her appeal with the board wilhiu the statutory, demonstrated that the building commis-
time limit was excused because improper service of sioner sent his letter in Octobor,20u2,
the order from which she appealed meant that the
time period for appealing never coninenecd to run; Stavis appealed to the board on January 12,
('2) the plaintiffs lacked standing to sock relief; (3) 2003. Notice Ihul a hearing would be conducted on
the plaintiffs tailed to serve their cornplaint for ju• February 25, 2003, was given to Stavis and to the
dicial review within the rune permitted by building commissioner. Following the hearing, at
Mass.R.Civ,P. 4(p, as appearing in 402 Mass. 1401 which the building commissioner supported Stavis's
(1988); and (4) the grant of n variance by the board
ob 2009 Thomson(Wesr. No Claim to Orig.U,S.Govt. Works.
872 N.E.2d 794 Page 3
70 Mass.App.Ct, 12,972 N.E.2d 794
(Cite as: 70 Mess,App,Ct.12,872 N.E.2d 794)
appeal, the board granted her application for a vari- judgment; but denied her motion to dismiss. The
ance by a decision dated March 24, 2003. Asserting matter was returned to the original judge, who con-
that they had received inadequate notice of the ducted a new hearing in which Stavis participated,
hearing, the plaintiffs, who are owners and occu- and then again entered judgment reversing the
pants of units on the Third floor of the condomini- board. Stavis's timely appeal brings the case to this
unt,*6796 successfully petitioned the board to per- court.
mit them to intervene and to present evidence in
connection with Stavis's appeal. A rehearing at. jlj 2. Discussion.The central issue is whether
which all parties were present was conducted by the Mavis's appeal to the board vas timely. The qucs-
board on .July 15, 2005. 'rhe hoard did not hear the lion is governed initially by G.L. c. 143, § 100, in-
niarler de novo, but instead essentially restricted it- sertcd by St.1984, c. 348, § 10, which provides that
self to hearing from the plaintiffs why they objected "(wjhocvcr is aggrieved by an interpmInlion, order,
to the original decision. The board refused to con- requirement, direction or failure to act by any state
cider the plaintiffs' contention that Stavis's appeal or local agency or any person or state or local
was untimely.°"' On August 19. 2003, the board agency charged with the administration or enforce-
affirmed its earlier decision granting Stavis if vari- ment of the state building code or any of its rules
ance. and rogularlons ._ may within forty-five days after
the service of notice thereof appeal from such inter-
FN5. The chairman of the board, while ac.- pretation, order, requirement, direction, or failure to
knowledging that the appeal was late, act To the appeals board." The letter of the building
stated: "fqf we were to follow that, I think, commissioner directing that the chairlift he re-
how many of these would be thrown out moved undoubtedly qualified as an appealable
immediately, Quite a few ... I don't think "inlerprelation, order, requirement, tor] direction."
the opinion of the Board should be privy to In uddidon, as set forth above, the board's view that
that information.... I don't think it's gonna the letter was sent by the end of October, 2002, is
change the opinion of the Board.... I don't supported by the evidence. It should be noted as
think that the opinion of the facts us the well that Sravis has never claimed to be ignorant of
case heard change within a fifteen day, lite Id1cr, and she has in fact resisted its mandato
forty-five day, sixty day, seventy-five day through the administrative process and in two courts.
or ninety days. I don't think that changes
the fact;." Stavis did not appeal to The board until January
12, 2003, well after the forty-five days from the
The plaintiffs thereafter filed a complaint for striding of the letter of the building commissioner.
judicial review of the board's decision. Ree O.L. c. She argues, however, that her attempt to obtain re-
30A, § 14. In their complaint and in a subsequent lief from the board was not time barred because
amended complaint, the plaintiffs named only the proper service of the directive was never effected,
board as a derendant. following the riling of the ad- and thus the limitations period for Tiling an appeal
winistrative record and the plaintiffs' motion for to the board never commenced (and therefore; lo-
judgment on the pleadings, a judge allowed the me- gically, could nM. have expired). She bases this pro-
tion and entered a judgment vacating the board's position on the rofernttce in G.L. a 143, § 100, to
decision. Stavis, asserting that she had not been no- the right to appeal within forty-five days "after the
rifled of the Superior Court proceedings, moved to service of notice" of the decision **797 to be re-
intervene and prayed that the judgment reversing viewed, and argues that `service of notice" for this
the board be *r 5 vacated and that the complaint be purpose could not be accomplished by ordinary mail,
dismissed. A second judge agreed that Stavis had
been entitled to notice of the judicial review; al-
lowed her motion to intervene and to vacate the
0 2008 Thomson/West.No Claim In Orig.11,S.Govt Works.
872 N.E.2d 794 Page 4
70 Mass.App.Ct, 12,872 N.E.2d 794
(Cite as:70 Mass,App.Ct, 12,872 N.E.2d 794)
Stavis relies in this regard on the provisions of barred by asserting that the notice of violation eR
the State building code, specifically those in 780 fectively never existed because it was not properly
Code Mass. kegs. § 118.6 (1997), that provide that served. The motion judge dealt with the contention
notices or orders issued under •16 the code shall be by correctly refusing to consider it on the ground
served personally; by rcgislcrcd or certified mail (if that the alleged defect in notice had not been raised
the responsible party is within the Commonwealth); before the board. Indeed. Stavis took the opposite
by use of a person authorized to serve civil process position at that level, being perfectly willing to
who leaves a copy of(be notice nr order at the re. have ate board exert jurisdiction with respect to the
spon,ible party's last and usual place of abode; or, notice and successfully seeking a reversaf of the or-
where such last and usual place of abode is un- der to remove the chairlift. "A party is not entitled
known, by publication and posting at the property to raise arguments on appeal that he could have
in questiori The applicable regulation does not raised, bill dill not raise, before the administrative
provide for service by ordinary mail. Thus, Stavis's agency" Foxboro Harness, Inc. v. Slate Racing
argument continues, the building commissioner's Contin., 42 Mass.App.Ct, 82, 85, 674 MEN 1322
mailing of the notice did not constitute service, and (1997). quoting train Albert v. Municipal Cr. of B11-
the limitations period of forty-five duys never enm- stun, 388 Mass. 491, 493, 446 N.E.2d 1.385 (1983).
menced. 'the plaintiffs preserved flair objection on this
ground in the Superior Court. Contrast *17 Niles v.
FN6. "Ihe regulation in question provides Soetoh Rent Control Administrator, 6 Mass.App,0.
in full; "Every notice or order authorized 135, 151-152,374 N.E.2d 296(1978).
by 780 [Code Mass. Regs] shall be in
writing and shall be served on the person [31 Considering Stavis's proposition on ale
responsible: I. personally, by any person merits. we conclude that she is not entitled to relief
authorized by the building official; or 2, by ttom the statutory time bar. The only defect in pro-
any person authorized to serve civil pro- cedure arose from the fact that the building com-
eess by leaving a copy of the order or no- nrissioncrs notice, acknowledged to have been re-
tice at. the responsible party's last and usual coivcd, was sent by ordinary mail, The case thus
place of abode; or 3, by sending the party turps, in our view, on whether that defect deprived
responsible a copy of the order by re- the board of jurisdiction to act on the appeal. If so,
gistercd or certified mail return receipt re- Stavis's appeal was a nullity; the board was without
quested, if he is within the Common- power to grant relief, and Stavis's right to appeal an
wealth; or 4, if' the responsible parry's last adverse order of the building department remained
and usual place of abode is unknown, by available If and when the building commissioner
posting a copy of this order or nolicc in a properly served his notice. If not, then Stavis's in-
conspicuous place on or about lhc. premises vocation of the board's appellate authority consti-
in violation and by publishing it for at least ruled a waiver of any objection she might have had
three out of five consecu0vt days in one or to the method ""798 of service of the order. We
more newspapers of general circulation hold that the defect did not affccl the jurisdiction of
wherein the building or premises affected the board.
is situated."
Our position ill this regard is supported by the
f21 The proposition requires that we determine principles underlying the treatment of defective no-
that, where a notice of violation was issued, the no- tices in otter contexts. Even statutory provisions
lice was received by the responsible party, and the governing notice (as opposed to the provisions in
responsible party sought and obtained relief at the the present case which are incorporated in a regula-
ddministrative level, that party may attack a sub. tion) exist largely to enhance the likelihood that in-
sequenl judicial determination that relief was tine terestod parties will, ill fact, know of a proceeding
0 2008 Thotnson/Weet.No Claim to Orig.U.S.Govt.Works.
972 N.e.2d 794 Ysg.a
70 Mos..App,Ct.12,872 N.EN 794
(Cite es:70 M.aa.App.CL 12,871 N.E.2d 794)
that may affect[hear interests,ami to provide ways have applied similar consideration to ptoeathrow
in which a determine whether such node.has been failures by agencies. in r,,.. v. Zoning BJ of
given.Spwking in m.eomexr of n frrednurc pro- A"'Oi,of sdmumo tle 65 Mmx.App.CL 186, 195,
reeding-we have said,wish respcd e requlrz 837 N.E2d 1147(2005), we held thaq where the
m the
mots of newspaper publication add rc,dstared moll hoard failed m give notice m w but,.,Of A hearing
notice,see G.L.c.244,§14,"Itlbe main purpose of or,,an application tar.epardid p nail the dinery-
ba[h,however,is to provide novice to those affected My period for M appeal under C L.a 40A,§ I7,
by the fonelosure sale and to fecialsic proufufnm did no,commenu an inn until he irwicsed party
lice:'Hull v.Attleboro So,Bank 33 Mms.App.CL hecuee aware of the project to which he objected.
IS,22,596 N,E.2J 358(1992).We ddoral that We did no,view the defect.otic that deprNed rhe
me..,plan of the notice rcqulmnam"were Polly blood of,d sdlmion,observing rho,"Iaj no.Flex-
achlcved u re the plaintiff hecause he bad.eau late.1.has been applied in simatiew where a da-
muce of rhe Isla a, least seven days before the nicip.l party failed m deliver.mire precisely as m-
erbcduJeddue,and the blank had proof.!iL"told gaited by statute,but ad[[provided notice edcquam
to allow aburters in attend the hearing."fbid
On sari...ithfacm,it has been..,luded that
.mice .cqulmmems um nm decmcd jmisdinl.nal In oche,cases,wt have Identified tiro principal
where"the party I.J.H.,on be aggrieved by roe careadininde. in .,shoeing me afflict of technical
bound's.,be.knew afro praccedbi s and was not ounce radial...by agencies to be whetter a parry
prejudiced by wheaver defect roue win.in the an- has Into prejudiced thereby."S..cesslld snook.n
tlreP R,ean v. Bnmrf n'ApprN Or dnsrnn, 21 a boud's decision,in the mee of scmeh'794 notice
Man App.C,. 678, 684, 489 1,1E.2d 1018 (1986). bur in the absence of emmmrily required rads,,
Thus, in correction with a zoning appeal, as '18 should he resrricled to donamsta0ca.[lard prejro
applicant far a ap.ial permit violated a require dice is demomlreted." Chfuccoricllo s. Bvlidf„g
meat of O.L.e.40A, 1 9,by oiling to lilc the cep. Comm,,of Bowan.29 Moss.App.CL 482,4161 562
plication who ma mwn dark.See Rohoh v,Soh- N E.2d 96(1940).See '1OKeria r v. Board O(A,
..snot DO Ainbllr So.,Ina.429 Mus478,492, Pent+of Watertown, 3 Mass.App,Ct.251,257.258,
709 N.E 2d 798 (1909).The applice6on had bond 326 1,1£.2d 911(1975)("tiara was aching in,he
fled with the planning board; it became evailshle evidence he suggest that the plaintiff was prejudiced
far impeai.n In the town dark's off,,thereafter; in any way by the bound's failure to send him writ-
mm the abutters did not claim that they were pmju- in,nalee'),Thus,we flared not all the pa,tbil-
diced by the pr.cMurnl defect.fbid Smfng the on ity that a dekctive.mice might deprive the agency
tscry failure to follow pmcisely the procedural reafjurisdiaion,bur rehm nd whether rt pangs rights
gniremenra or 0.c,gun is 0 jurisdictional defwl, had been alTi0ed in a meaningful wxy by the man-
he cmc ruled that the mistake did nut deprive the ter in which the smency exercised tlist jurisdictiod.
board of roc power to act.thiel To like err t.se
Ridmds.n s. 2aomp rad fAppanh of)',,mir, We holies. Ilona qumttom of this nalme n
hetet. 151 Mnev. 375, 376-377, 221 N.E.2J 396 best dccldcd in the aptri,of the dialhoesimu sal nsrth
11966), wherein the noun concluded the,a failure by]once Kaplan in Schafre v.Dlrvise,ofrhe Dm
to comply wird the oegairemem of G.L.40A,§21. n/Enrplovnreor.Securlrv, 369 Mass. 74,79-90,337
the a copy of the hocad,deeialan cenificd by the N.P,.2d 677 0975),and thar the distinctions apply
law,,clink be attached to the bill In eg0t,was out whether the po:udursl error is that of an Agency or
final whore use d a phoo stat of a cenllied copy ar. a parry.Tom,in dealing with a trivial error in the
congJ lshcd rhe some purpose, imlingion of an appeal film .denixl or employ-
nr sewdr, benefits, nee 0,L e. 1511. §11,-7
While the above eases involved various depot- thccout seared the"a dininedun is taken between
.rev tram p.ocedwal requirdmmta by panics, w, snlaus amus,. and relarNrl, mr.inpn9 on.
C20DR Tlm.nnedWen.No Orlin 1.Oil,,U.S.Govt.Work,
deemed such a vim)departure from regularity flat it ,sclu.ively to protect unit owners common rights
ncgevd every damn asked thereafter, put differ. does not prevrnt individual .nil u m from aa-
early, we c nclude that a failure of this kind, scm., claims .elating to their Individual rights
.huller attributable to xa agency or u parry,may even though such claims may arise from something
provide a basis for relief in the soar,of nrcind;re_ that tikm, pbir s.e IS,,).
but it duel nor deprive"20 the fj.ri,d,c- trndrr Der. Corp., 409 Maas, 212,214.215. 557
r n.Sen Cohen v. Board nJ Rediahaflan in Ph - N.E.2J 1119 (1990), Comms, id as 217-218, 557
mug%347 Mass 94,98-99,196 N-C.2d 938(1964). N.p..2d 1119:Snauss v. Oyra,River Coadommfum
Trash 417 Mau.442,445,631 N.Ld 979(1994)
h follows that Sm,is's failure to 01e x timtly (assndalion only puny wiet smtWidg an pars.. lit-
appeal wet not cxcu.ed by the provisions of 780 igalion involving common areas that will hear&all
Codc Mass.keen.§ 118.6 regarding notice.We ac- dnit owdem).
knowledge that doe rcchoice[ nazi- defect could
have had is nmrn signifwn.Hca if she city had ar- 'I4 Notice of the platndH5 cnmplsint for judb
tempted In enforce thr i,nproperly served antic., alai ra w should Lave boen given to Sravls a
Hem, howcs.r, it .. our the merner,eiry, but Interested party.See 0A, c. 30A,§ 14(2),inscned
rearr the affected party. Sorel,, who,without ob- by St.1976, c. 411, § 2, p'Service shall be made
ject4m io the edbod by which,he aider.,cam- upnn the agency and each psory,ro the parry p,a-
m.nicaed invoked as available prcr,dura in an ef- media&7.Noweser,he defcm waw-rd by.roar
02008 Thomsom/West.No Claim to Orig.U.S.Gum.Works.
872 N.E.2d 794 Page 6
70 Mass.App.Ct. 12,872 N.E.2d 794
(Cite as: 70 Mass.App.Ct,12,872 N.E.2d 794)
Some errors or omissions are seen on their face to fort to obtain relief from it. Having sought the rem-
be so repugnant to the procedural scheme, so de- edy, and having demonstrated no prejudice, she
structive of its purposes, as to tail for dismissal of cannot now be heard to say that the conditions for
the appeal. A prime example is attempted institu- granting relief should not be applied to her appeal,
tion of an appeal seeking judicial review of an ad- We are thus left with the establlshnd"800 fact that
ministrative decision after expiration of the period she did not appeal within forty-five days of receipt
limited by a statute or rule." Ld, at 79, 337 N.E.2d of the order that she contests. Her remedy was cre-
677. In such circumstances, it may safely be said ated by statute, and that stature's limitations period
that the departure from the procedural requirement controls. See Greeley v. Zoning Bd, al'Appeals of
has a substantive effect on the authority of the Framingham, 350 Mass. 549, 552, 215 N.E.2d 791
tribunal to act on the subject matter. (1966). Nothing in the record suggests that Stavis
ever requested that the board extend the time for an
FN7, The deviation in question was that appeal. See 801 Code Mass. Rugs. § 1.01(4)(0)
the return day on the order of notice did (1998)("All requests for extensions of time shall be
not fall after the expiration of twenty-eight made by motion before the expiration of the origin-
days from the date of filing of the petition al or next previous extended time period"). We note
for review./d. at 77,337 N.E.2d 677. also that the assistant attorney general who repres-
ented the board in the Superior Court acknow-
Hy contrast, "[w)ith respect to other slips in the ledged by letter to the motion judge after oral argu-
procedure for judicial review, the judge is to con- men( that the board may have lacked jurisdiction to
sider how far they have interfered with the accom- hear Stavis's appeal-
plishment of the purposes implicit in the statutory
scheme and to what extent the other side can justifi- [4j We address briefly Stavis's remaining con-
ably claim prejudice." Id. at 80, 337 N,E,2d 677, tentions. Contrary to her position that only the con-
We have little difficulty in determining that the slip dominium association had standing to complain
in this case, i.e., the sending of notice by regular about an obstruction in a common area, for which
rather than by certified mail, with no resulting pre- proposition she relies on O.L. c. 183A, § 10(h )(4),
judice to the recipient, cannot reasonably be the association's right under that section to proceed
deemed such a vital departure from regularity that it exclusively to protect unit owners' common rights
negated every action taken thereafter. Put differ- docs not prevent individual unit owners from as-
ently, we conclude that a failure of this kind, setting claim relating to their individual rights
whether attributable to an agency or a party, may omen though such claims may arise from something
provide a basis for relief in the event of prejudice, that. takes place in a common arca. See Cigal v.
but it docs not deprive `20 the agency of jurisdic- Leader Uett Corp.. 408 Mass. 212, 214-215, 557
tion. See Cohen v. Board of ReRLrtrurion in Phar- N.P,.2d 1119 (1990). Contrast id a( 217-218. 557
many, 347 Mass.96,98-99, 196 N.E.2d 838(1964). N.E.2d 1119; Strauss v. Clyster River Condominium
Trurr, 411 Mass. 442, 445, 631 N.E.2d 979 (1994)
It follows that Stavis's failure to file a timely (association only party with standing to pursue tit-
appeal was not excused by the provisions of 780 igation involving common areas that will benefit all
(:ode Mass. kegs. § 118.6 regarding notice. We. ac- unit owners).
knowledge that the technical notice defect could
have had it more significant effect if the city had at- "21 Notice of the plaintif'f's complaint for judi-
tempted to enforce the improperly served notice. tial review should have been given to Slavis as an
Here, however, it was not the municipality, but interested party. See G.L. c. 30n, § 14(2), inserted
rather the affected party, Suivis, who, without ob- by St,1976, e. 411, § 2, ("Service shall be mule
jectiun to the method by which the order was coni- upon the agency and each party to the agency pro-
municated, invoked an nvnulablc procedure in an ef- ceeding"). However, the defect was cured by vidm
0 2008 Thomson/West.No Claim to(trig. U.S.Govt. Works.
872 N.E.2d 794 Page 7
70 Mass.App.Ct. 12,872 N.E.2d 794
(Cite as:70 Mass.App.Ct. 12,072 N.E.2d 794)
of the fact that the Superior Court judgment that
entered without Stavis's knowledge was vacated;
Stavis was granted leave to intervene; and she parti-
cipated fully in the proceeding thereafter. There
was no prejudice.
In light of our conclusion that the board was
without jurisdiction to consider Stavis`s appeal, it is
unnecessary to address whether its decision in her
favor was supported by substantial evidence. See
G.I.,, c, 30A, §§ l(6), 14(7)(e ). We observe,
however, that any review of the record that we
might have conducted would certainly have been
influenced by the manner in which the board con-
ductcd the proceeding, including its failure to hold
a true de novo liming with the burden of proof
properly allocated to the applicant; its refusal to ac-
knowledge a statutorily-imposed limitations period;
its unreasonable limiting of cross-examination; its
lack of courtesy h, the plaintiffs; and its apparent
prejudging of the case.
Judgment afffrrned.
Mass.App.Cl.,2007.
Gordon v. State Bldg.Code Appeals Bd.
70 Mass.App.Ct. 12,872 ME-2d 794
END OP DOCUMENT
02008 Thomson/West. No Claim to Orig. U.S.Gov[. Works.
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Irving GORDON & another [FN1] vs. STATE BUILDING CODE APPEALS BOARD
[FN2] & another. [FN3]
No. 06-P-695.
March 5, 2007. - August 30, 2007.
State Building Code, Residential condominium. Practice, Civil, Appeal, Standing. Jurisdiction,
Administrative matter. Notice.
CIVIL ACTION commenced in the Superior Court Department on April 22, 2003.
The case was heard by Howard J. Whitehead, J., on a motion for judgment on the pleadings.
Carl D, Goodman for the intervener.
Stuart M. Holber for the plaintiffs.
Present: Gelinas, Cowin, & Graham, JJ.
COWIN, J.
The plaintiffs, Irving Gordon and Harold Mack, sought judicial review, see G.L. c, 30A, § 14, of a
decision of the defendant, the State building code appeals board (the board), wherein the board
granted the intervener, Pamela Stavis, a variance from applicable provisions of the State building code
so that she could install and maintain a chairlift in the rear entrance of a six-unit condominium In
Salem. A judge of the Superior Court allowed the plaintiffs' motion for judgment on the pleadings, see
Superior Court Standing Order 1-96, and reversed the decision of the board on the ground that Stavis
had not appealed to the board within the time allotted by G.L. c. 143, § 100.
Stavis appealed, arguing that (1) her failure to file her appeal with the board within the statutory time
' limit was excused because improper service of the order from which she appealed meant that the time
° period for appealing never commenced to run; (2) the plaintiffs lacked standing to seek relief; (3) the
' plaintiffs failed to serve their complaint for judicial review within the time permitted by Mass.R.Civ.P,
4(j), as appearing in 402 Mass. 1401 (1988); and (4) the grant of a variance by the board was
1 supported by substantial evidence. We agree with the motion judge that Stavis's untimely filing with
i the board_ deprived that agency of authority to grant relief in the circumstances, and that its decision
granting a variance from the provisions of the State building code must be vacated.
1. Background, The material history of the case is not disputed. Stavis acquired a second-floor unit at
the Salem condominium, Afflicted with muscular dystrophy, she obtained the permission of the
condominium developer to install a chairlift in a common stairwell leading to the rear exit of the
building. She also received informal advice from the city building department that the contemplated
installation would not offend the State building code.
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Subsequent to installation of the chairlift, the acting building commissioner wrote to Stavis and,
acknowledging that he had previously advised that the chairlift installation was permissible, stated that
he had since determined that the installation violated the code and would have to be removed "as
soon as possible." The letter is undated. However, the record shows that, on October 30, 2002, the
building commissioner forwarded the letter to Stavis by regular mail while simultaneously faxing a
copy thereof to the condominium property manager, and the board determined that notice was in fact
sent in October, 2002. [FN4]
Stavis appealed to the board on January 12, 2003. Notice that a hearing would be conducted on
February 25, 2003, was given to Stavis and to the building commissioner. Following the hearing, at
which the building commissioner supported Stavis's appeal, the board granted her application for a
variance by a decision dated March 24, 2003. Asserting that they had received inadequate notice of
the hearing, the plaintiffs, owners and occupants of units on the third floor of the condominium,
successfully petitioned the board to permit them to intervene and to present evidence in connection
with Stavis's appeal. A rehearing at which all parties were present was conducted by the board on July
15, 2003. The board did not hear the matter de novo, but instead essentially restricted itself to
hearing from the plaintiffs why they objected to the original decision. The board refused to consider
the plaintiffs' contention that Stavis's appeal was untimely. [FN51 On August 18, 2003, the board
affirmed its earlier decision granting Stavis a variance.
The plaintiffs thereafter filed a complaint for judicial review of the board's decision. See G.L. c. 30A, §
14. In their complaint and in a subsequent amended complaint, the plaintiffs named only the board as
a defendant. Following the filing of the administrative record and the plaintiffs' motion for judgment on
the pleadings, a judge allowed the motion and entered a judgment vacating the board's decision.
Stavis, asserting that she had not been notified of the Superior Court proceedings, moved to intervene
and prayed that the judgment reversing the board be vacated and that the complaint be dismissed. A
second judge agreed that Stavis had been entitled to notice of the judicial review; allowed her motion
to intervene and to vacate the judgment; but denied her motion to dismiss. The matter was returned
to the original judge, who conducted a new hearing in which Stavis participated, and then again
entered judgment reversing the board. Stavis's timely appeal brings the case to this court.
2. Discussion. The central issue is whether Stavis's appeal to the board was timely. The question is
governed initially by G.L. c. 143, § 100, inserted by St.1984, c. 348, § 10, which provides that
"[w]hoever is aggrieved by an interpretation, order, requirement, direction or failure to act by any
state or local agency or any person or state or local agency charged with the administration or
enforcement of the state building code or any of its rules and regulations ... may within forty-five days
after the service of notice thereof appeal from such interpretation, order, requirement, direction, or
failure to act to the appeals board." The letter of the building commissioner directing that the chairlift
be removed undoubtedly qualified as an appealable "interpretation, order, requirement, [or] direction."
In addition, as set forth above, the board's view that the letter was sent by the end of October, 2002,
is supported by the evidence. It should be noted as well that Stavis has never claimed to be ignorant
of the letter, and she has in fact resisted its mandate through the administrative process and in two
courts.
Stavis did not appeal to the board until January 12, 2003, well after the forty-five days from the
sending of the letter of the building commissioner. She argues, however, that her attempt to obtain
relief from the board was not time-barred because proper service of the directive was never effected,
and thus the limitations period for filing an appeal to the board never commenced (and therefore,
logically, could not have expired). She bases this proposition on the reference in G.L. c. 143, § 100, to
the right to appeal within forty-five days "after the service of notice" of the decision to be reviewed,
and argues that "service of notice" for this purpose could not be accomplished by ordinary mail.
Stavis relies in this regard on the provisions of the State building code, specifically those in 780 Code
Mass. Regs. § 118.6 (1997), that provide that notices or orders issued under the code shall be served
personally; by registered or certified mail (if the responsible party is within the Commonwealth); by
use of a person authorized to serve civil process who leaves a copy of the notice or order at the
responsible party's last and usual place of abode; or, where such last and usual place of abode is
unknown, by publication and posting at the property in question. [FN61 The applicable regulation does
not provide for service by ordinary mail. Thus, Stavis's argument continues, the building
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commissioner's mailing of the notice did not constitute service, and the limitations period of forty-five
days never commenced.
The proposition requires that we determine that, where a notice of violation was issued; the notice
was received by the responsible party; and the responsible party sought and obtained relief at the
administrative level, that party may attack a subsequent judicial determination that relief was
time-barred by asserting that the notice of violation effectively never existed because it was not
properly served. The motion judge dealt with the contention by correctly refusing to consider it on the
ground that the alleged defect in notice had not been raised before the board. Indeed, Stavis took the
opposite position at that level, being perfectly willing to have the board exert jurisdiction with respect
to the notice and successfully seeking a reversal of the order to remove the chairiift. "A party is not
entitled to raise arguments on appeal that he could have raised, but did not raise, before the
administrative agency." Foxboro Harness, Inc. v. State Racing Commn., 42 Mass.App.Ct. 82, 85
(1997), quoting from Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493 (1983). The plaintiffs
preserved their objection on this ground in the Superior Court. Contrast Niles v. Boston Rent Control
Administrator, 6 Mass.App.Ct. 135, 151-152 (1978).
Considering Stavis's proposition on the merits, we conclude that she is not entitled to relief from the
statutory time bar. The only defect in procedure arose from the fact that the building commissioner's
notice, acknowledged to have been received, was sent by ordinary mail. The case thus turns, in our
view, on whether that defect deprived the board of jurisdiction to act on the appeal. If so, Stavis's
appeal was a nullity; the board was without power to grant relief; and Stavis's right to appeal an
adverse order of the building department remained available if and when the building commissioner
properly served his notice. If not, then Stavis's invocation of the board's appellate authority
constituted a waiver of any objection she might have had to the method of service of the order. We
hold that the defect did not affect the jurisdiction of the board.
Our position in this regard is supported by the principles underlying the treatment of defective notices
in other contexts. Even statutory provisions governing notice (as opposed to the provisions in the
present case which are Incorporated in a regulation) exist largely to enhance the likelihood that
Interested parties will, in fact, know of a proceeding that may affect their interests, and to provide
ways in which to determine whether such notice has been given. Speaking in the context of a
foreclosure proceeding, we have said, with respect to the requirements of newspaper publication and
registered mail notice, see G.L. c. 244, § 14, "[tlhe main purpose of both, however, is to provide
notice to those affected by the foreclosure sale and to facilitate proof of notice." Hull v. Attleboro Say.
Bank, 33 Mass.App.Ct. 18, 22 (1992). We determined that the purposes of the notice requirement
"were fully achieved as to the plaintiff because he had actual notice of the sale at least seven days
before the scheduled date, and the bank had proof of it." Ibid.
On various subjects, it has been concluded that notice requirements are not deemed jurisdictional
where "the party claiming to be aggrieved by the board's action knew of the proceedings and was not
prejudiced by whatever defect there was in the notice." Bonan v. Board of Appeal of Boston, 21
Mass.App.Ct. 678, 684 (1986), Thus, in connection with a zoning appeal, an applicant for a special
permit violated a requirement of G.L, c. 40A, § 9, by failing to file the application with the town clerk.
See Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 492 (1999). The application had
been filed with the planning board; it became available for inspection in the town clerk's office
i thereafter; and the abutters did not claim that they were prejudiced by the procedural defect. Ibid.
i Stating that not every failure to follow precisely the procedural requirements of G.L. c. 40A is a
jurisdictional defect, the court ruled that the mistake did not deprive the board of the power to act,
Ibid. To like effect, see Richardson v. Zoning Bd. of Appeals of Framingham, 351 Mass. 375, 376-377
(1966), wherein the court concluded that a failure to comply with the requirement of G.L. 40A, § 21,
that a copy of the board's decision certified by the town clerk be attached to the bill in equity was not
fatal where use of a photostat of a certified copy accomplished the same purpose.
While the above cases involved various departures from procedural requirements by parties, we have
applied similar consideration to procedural failures by agencies. In Kramer v. Zoning Bd. of Appeals of
Somerville, 65 Mass.App.Ct. 186, 195 (2005), we held that, where the board failed to give notice to an
abutter of a hearing on an application for a special permit, the ninety-day period for an appeal under
G.L. c. 40A, § 17, did not commence to run until the aggrieved party became aware of the project to
c
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which he objected. We did not view the defect as one that deprived the board of jurisdiction, observing
that "[a] more flexible rule has been applied in situations where a municipal body failed to deliver
notice precisely as required by statute, but still provided notice adequate to allow abutters to attend
the hearing," /bid.
In other cases, we have identified the principal consideration in evaluating the effect of technical
notice failures by agencies to be whether a party has been prejudiced thereby. "Successful attack on a
board's decision, in the face of actual notice but in the absence of statutorily required notice, should be
restricted to circumstances where prejudice is demonstrated." Chiuccariello v. Building Commr. of
Boston, 29 Mass.App.Ct, 482, 486 (1990). See Kasper v. Board of Appeals of Watertown, 3
Mass.App.Ct. 251, 257-258 (1975) ("There was nothing in the evidence to suggest that the plaintiff
was prejudiced in any way by the board's failure to send him written notice"). Thus, we focused not on
the possibility that a defective notice might deprive the agency of jurisdiction, but rather on whether a
party's rights had been affected in a meaningful way by the manner in which the agency exercised
that jurisdiction.
We believe that questions of this nature are best decided in the spirit of the distinctions set forth by
Justice Kaplan in Schulte v. Director of the Div. of Employment Security, 369 Mass. 74, 79-80 (1975),
and that the distinctions apply whether the procedural error is that of an agency or a party: Thus, in
dealing with a trivial error in the institution of an appeal from a denial of employment security benefits,
see G.L. c. 151A, § 42, [FN7] the court stated that "a distinction is taken between serious missteps
and relatively innocuous ones. Some errors or omissions are seen on their face to be so repugnant to
the procedural scheme, so destructive of its purposes, as to call for dismissal of the appeal. A prime
example is attempted institution of an appeal seeking judicial review of an administrative decision after
expiration of the period limited by a statute or rule." Id. at 79. In such circumstances, it may safely be
said that the departure from the procedural requirement has a substantive effect on the authority of
the tribunal to act on the subject matter,
By contrast, "[w]ith respect to other slips in the procedure for judicial review, the judge is to consider
how far they have interfered with the accomplishment of the purposes implicit in the statutory scheme
and to what extent the other side can justifiably claim prejudice." Id. at 80. We have little difficulty in
determining that the slip in this case, i.e., the sending of notice by regular rather than by certified
mail, with no resulting prejudice to the recipient, cannot reasonably be deemed such a vital departure
from regularity that it negated every action taken thereafter. Put differently, we conclude that a failure
of this kind, whether attributable to an agency or a party, may provide a basis for relief in the event of
prejudice, but it does not deprive the agency of jurisdiction. See Cohen v. Board of Registration in
Pharmacy, 347 Mass. 96, 98-99 (1964).
It follows that Stavis's failure to file a timely appeal was not excused by the provisions of 780 Code
Mass. Regs. § 118.6 regarding notice. We acknowledge that the technical notice defect could have had
a more significant effect if the city had attempted to enforce the improperly served notice. Here,
however, it was not the municipality, but rather the affected party, Stavis, who, without objection to
the method by which the order was communicated, invoked an available procedure in an effort to
obtain relief from it. Having sought the remedy, and having demonstrated no prejudice, she cannot
now be heard to say that the conditions for granting relief should not be applied to her appeal. We are
thus left with the established fact that she did not appeal within forty-five days of receipt of the order
that she contests. Her remedy was created by statute, and that statute's limitations period controls.
See Greeley v. Zoning Bd. of Appeals of Framingham, 350 Mass. 549, 552 (1966). Nothing in the
record suggests that Stavis ever requested that the board extend the time for an appeal. See 801
Code Mass. Regs. § 1.01(4)(e) (1998) ("[a]il requests for extensions of time shall be made by motion
before the expiration of the original or next previous extended time period"). We note also that the
assistant attorney general who represented the board in the Superior Court acknowledged by letter to
the motion judge after oral argument that the board may have lacked jurisdiction to hear Stavis's
appeal.
We address briefly Stavis's remaining contentions. Contrary to her position that only the condominium
association had standing to complain about an obstruction in a common area, for which proposition
she relies on G.L. c. 183A, § 10(b )(4), the association's right under that subsection to proceed
exclusively to protect unit owners' common rights does not prevent individual unit owners from
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asserting claims relating to their individual rights even though such claims may arise from something
that takes place in a common area. See Cigal v. Leader Dev. Corp., 408 Mass. 212, 214-215 (1990).
Contrast id. at 217-218; Strauss v. Oyster River Condominium Trust, 417 Mass, 442, 445 (1994)
(association only party with standing to pursue litigation Involving common areas that will benefit all
unit owners).
Notice of the plaintiffs complaint for judicial review should have been given to Stavis as an interested
party. See G.L. c. 30A, § 14(2), inserted by St.1976, c. 411, § 2, ("Service shall be made upon the
agency and each party to the agency proceeding"). However, the defect was cured by virtue of the
fact that the Superior Court judgment that entered without Stavis's knowledge was vacated; Stavis
was granted leave to intervene; and she participated fully in the proceeding thereafter. There was no
prejudice.
In light of our conclusion that the board was without jurisdiction to consider Stavis's appeal, it is
unnecessary to address whether its decision in her favor was supported by substantial evidence. See
G.L. c. 30A, §§ 1(6) & 14(7)(e ), We observe, however, that any review of the record that we might
have conducted would certainly have been influenced by the manner in which the board conducted the
proceeding, including its failure to hold a true de novo hearing with the burden of proof properly
allocated to the applicant; its refusal to acknowledge a statutorily-imposed limitations period; its
unreasonable limiting of cross-examination; its lack of courtesy to the plaintiffs; and its apparent
prejudging of the case.
Judgment affirmed.
FN 1. Harold Mack.
FN2. The State building code appeals board did not participate in the appeal.
FN3. Pamela Stavis, intervener.
FN4. On her appeal application form, Stavis referred to the order in question as dated
December 10, 2002, Nothing else in the record suggests that anything relevant
occurred on December 10, 2002, and she was unable to explain the date when
questioned about it at the board hearing. The board permissibly relied on other
evidence that demonstrated that the building commissioner sent his letter in October,
2002.
FNS. The chairman of the board, while acknowledging that the appeal was late, stated:
"[I]f we were to follow that, I think, how many of these would be thrown out
immediately. Quite a few ... I don't think the opinion of the Board should be privy to
that information.... I don't think it's gonna change the opinion of the Board.... I don't
think that the opinion of the facts as the case heard change within a fifteen day,
forty-five day, sixty day, seventy-
five day or ninety days. I don't think that changes the facts."
FN6. The regulation in question provides in full: "Every notice or order authorized by
780 [Code Mass. Regs.] shall be in writing and shall be served on the person
responsible: 1. personally, by any person authorized by the building official; or 2. by
any person authorized to serve civil process by leaving a copy of the order or notice at
8/3012007 10:(
Westlaw Result http://weblinks.westlaw.com/Search/default,wl?RP=%2FWelcome%2..
the responsible party's last and usual place of abode; or 3. by sending the party
responsible a copy of the order by registered or certified mail return receipt requested,
if he is within the Commonwealth; or 4. if the responsible party's last and usual place of
abode is unknown, by posting a copy of this order or notice in a conspicuous place on
or about the premises in violation and by publishing it for at least three out of five
consecutive days in one or more newspapers of general circulation wherein the building
or premises affected is situated."
FN7. The deviation in question was that the return day on the order of notice did not
fall after the expiration of twenty-eight days from the date of filing of the petition for
review. Id. at 77.
' Term
Doc 1 of 20
8/30/2007 10:06,
JAN-25-2006 01 : 34 PM HAROLD, MACK 561 735 9597
P. 06
Commonwealth of Massachusetts
County of Essex
The Superior Court
CIVIL DOCKET#: ESCV2003-00808-A
RE: Gordon et al v Commonwealth of Massachusetts State Building Code Appeals Board
TO: Stuart M Holber, Esquire
The Wingate Building
21 Wingate Street Suite 101
Haverhill, MA 01831
TICE OF DOCKET ENTRY
You are hereby notified that on 12/04/2007 the following entry was made on the above
referenced docket:
Rescript received from Appeals Court; judgment AFFIRMED
Dated at Salem, Massachusetts this 13th day of December,
2007.
Thomas H. Driscoll Jr.,
Clerk of the Courts
BY: Judith Brennan ! Carlotta McCarthy Patten
Assistant Clerk
Telephone: (978) 744-5500 ext. 414 (Brennan) or 377 (Patten)
Disabled individuals who need handicap accommodations should contact the Administrative Office
of the Superior Court at(617)786-6130
i
J
N
LAW OFFICE OF CARL D. GOODMAN
152 Lynnway-Suite IE
LYNN,MASSACHUSETTs 01902
781-593-2016— 781-639-8100
781-592-1129 facsimile
carfflattorneygoodman.com
Carl D. Goodman
March 9, 2006
Clerk's Office—Civil
Essex Superior Court
34 Federal Street
Salem MA 01970
RE: Irving Gordon et al v Commonwealth of Massachusetts Board of Building Code
Anneals
Essex Superior Court Civil Action ESCV2003-00808
To the Clerk:
Enclosed for filing please find Certification of Appellant Pursuant to M.R.A.P. .
9(c)(2)(iii) with Certificate of Service.
Very t you ,
CARL D. GOODMAN
CDG:hbs
Enclosures
Assistant Attorney General Annapurna Balakrishna
Harold M. Mack, Esq.
Stuart M. Holber,Esq _
Mr. Thomas St. Pierre
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS: SUPERIOR COURT DEPT.
OF THE TRIAL COURT
Civil Action#ESCV2003-00808
IRVING GORDON and
HAROLD MACK
PLAINTIFFS
-v-
COMMONWEALTH OF MASSACHUSETTS
STATE BUILDING CODE APPEALS BOARD
DEFENDANT
CERTIFICATION OF APPELLANT PURSUANT TO M.R.A.P. 9(c)(2)(iii)
Pursuant to M.R.A.P. 9(c)(2)(iii), the defendant, Pamela Stavis,by her undersigned attorney,
certifies that the Appellant has not ordered and does not intend to order any transcripts of the lower
court proceedings.
PAMELA STAVIS, en t-Appellant
By her att y:
Dated: / ,tt- 2006
CARL D. bUAN
152 Lynnway- Suite I
Seaport Landing
Lynn,MA 01902
Tel: (781) 593-2016; (781)639-8100
BBO#201720
Law olr�or
152 Lym y
Ly M
01902
781-5934016
1
CERTIFICATE OF SERVICE
I certify that a true copy of the within document was served this day by first class mail,
postage prepaid, upon the following:
Assistant Attorney General Annapurna Balakrishna
One Ashburton Place—Room 2019
Boston, MA 02108
Harold M. Mack, Esq.
25 Kenoza Avenue
P.O. Box 909
Haverhill,MSL 01830
Stuart M. Holber, Esq.
P.O. Box 909
Haverhill, MA 01830
Mr. Thomas St. Pierre
Building Commissioner
City of Salem
Public Property Department
120 Washington Street
Salem,MA 01970
Dated: 0( 12006
CARL OODMAN
152 Lynnway- Suite 1 E
Seaport Landing
Lynn,MA 01902
Tel: (781) 593-2016; (781) 639-8100
BBO#201720
Lew OB'iu of
CSA D.Good.
152 Lyeewey
LYM h
01902
781-593-2016 .
2
LAW OFFICE OF CARL D. GOODMAN
152 Lynnway— Suite IE
LYNN,MASSACHUSETTS 01902
781-593-2016— 781-639-8100
781-592-1129 facsimile
carl@attomeygoodman.com
Carl D. Goodman
March 2, 2006
Clerk's Office—Civil HAND FILED
Essex Superior Court
34 Federal Street
Salem MA 01970
RE: Irving Gordon et al v. Commonwealth of Massachusetts Board of Building Code
Appeals
Essex Superior Court Civil Action ESCV2003-00808
To the Clerk:
Enclosed for filing please find Notice of Appeal with Certificate of Service.
Very truly you
CARL D. GOODMAN
CDG:hbs
Enclosures
Assistant Attorney General Annapurna Balakrishna
Harold M. Mack, Esq.
Stuart M. Holber, Esq
Mr. Thomas St. Pierre
Y
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS: SUPERIOR COURT DEPT.
OF THE TRIAL COURT
Civil Action#ESCV2003-00808
IRVING GORDON and
HAROLD MACK
PLAINTIFFS
-v-
COMMONWEALTH OF MASSACHUSETTS
STATE BUILDING CODE APPEALS BOARD
DEFENDANT
NOTICE OF APPEAL
Pursuant to M.R.A.P. 3, the defendant, Pamela Stavis, appeals to the Appeals Court from:
1. the Judgment of the Superior Court dated February 7, 2006 which judgment reversed the
decision of the State Building Code Appeals Board; and
2. the Decision and Order of the Superior Court dated June 7,2005 denying Pamela Stavis'
Motion to Dismiss the Complaint.
PAMELA STAVIS, D ndant-Appellant
By her attorney:
Dated: February 21, 2006
CARf D. O i IAN
152 Lynnway- Suite 1 E
Seaport Landing
Lynn, MA 01902
Tel: (781) 593-2016; (781) 639-8100
BBO#201720
Lew OtEce d
Ced D.Good.
152 Ly .y
Ly m
01902
781-591-2016
1
CERTIFICATE OF SERVICE
I certify that a true copy of the within document was served this day by first class mail,
postage prepaid,upon the following:
Assistant Attorney General Annapurna Balakrishna
One Ashburton Place—Room 2019
Boston, MA 02108
Harold M. Mack, Esq.
25 Kenoza Avenue
P.O. Box 909
Haverhill, MA 01830
Stuart M. Holber, Esq.
P.O. Box 909
Haverhill, MA 01830
Mr. Thomas St. Pierre
Building Commissioner
City of Salem
Public Property Department
120 Washington Street
Salem, MA 01970
Dated: �A,> �. , 2006
C . GOODMAN
152 Lynnway- Suite 1E
Seaport Landing
Lynn,MA 01902
Tel: (781) 593-2016; (781) 639-8100
BBO#201720
Lew Office of
cad n.co
152 Lywww
Lyng M
01902
"IBI-593-2016
2
LAW OFFICE OF CARL D. GOODMAN
152 Lynnway-Suite I
LYNN,MASSACHUSETTS 01902
781-593-2016- 781-639-8100
781-592-1129 facsimile
carl@attorneygoodman.com
April 7, 2006
Harold N. Mack, Esq.:
25 Kenoza Avenue
Haverhill, MA 01830
RE: Irving Gordon et al v. Commonwealth of Massachusetts Board of Building Code
Aooreals Essex.Superior Court Civil Action ESCV2003-00808
Dear Mr. Mack:
I am in receipt of your letter of April 5, 2006 addressed to Mr. St. Pierre.
The appeal duly filed on behalf of Mrs. Stavis automatically stays the effect of the
judgment. There was no injunction or other order issued for which a motion for stay is
required. I will assume that your misinformation to Mr. St. Pierre was occasioned by lack
of familiarity with the process and not a deliberate attempt to mislead.
Mass.R.Civ.P. 62(d) Stay Upon Appeal. Provides: "Except as otherwise provided in these
rules, the taking of an appeal from a judgment shall stay execution upon the judgment
during the pendency of the appeal.".
Chapter 235: Section 16 provides that: "No execution shall issue upon a judgment until
the exhaustion of all possible appellate review thereof, and the receipt by the clerk of the
trial court of the appropriate rescript or order."
Very truly yours,
CARL D. GOODMAN
cc: Assistant Attorney General Annapurna Balakrishna
Mr. Tomas St. Pierre
` QTY OF SALEM, MASSACiI sms
LEGAL DEPAMWNr
265 ESSEX ST.;SUITE 301
TEL(978)745.2212 EXT.103
KIMBERLEYDRISODLL FAX(978)745-9157
MAYOR ERE104ARD@KPLAVYERS.ODM
ELIZABET'HRENNARD,ESQ.
ACTING CITY SOLICITOR
May 11,2006
Harold N. Mack, Esq.
25 Kenoza Avenue
Harverhill,MA 01830
Re: Irving Gordon et al v Commonwealth of Massachusetts Board of Building Code
AXMIs,Essex Superior Court Civil Action ESCV2003-00808
Dear Mr: Mack:
Thank you for meeting with me recently to discuss the above referenced case.
I have researched the issues we discussed and I am in agreement with Attorney Goodman
that Mass.R.Civ.P, 62(d) and M.G.L. Chapter 235, § 16 are applicable to'the case at hand.
As a result;no action will be taken by the City's Building Commissioner until the
completion of the appeals process.
Should you have any questions, please do no hesitate to contact me.
'�L. IY Yours,
Eliza eth M. Rennard
EMR/jpb
cc: Carl D. Goodman, Esq.
Thomas St. Pierre,Building Commissioner
MAR-04-2005 03 : 24 PM HAROLD. MACK 561 735 9597 P. 01
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE ATTORNEY GENERAL " t'
ONE ASHBURTON PLACE i T
BOSTON,MASSACHUSETTS 02108-1598
rµil.o�;.e+oYl+elu �i.p.• u,rr.;:. 41�'a�l...�er�d . 'or+F1Mtrt+ 'tMggPlMl}MljtlWWIwMW
4wwlw ko� •• EtILLr (61 727-220000
Arroltmy GENnAL wwwago.stato.tnaus
September30,2004
The Honorable Howard Whitehead
Essex Superior Court
Superior Courthouse
34 Federal Street
Salem, MA 01841
Re: Irving Gordon and Harnld Macl-t-Statc BuildingCode gRDeals BoaW
C.A.No.03-0637-A
Dear Judge Whitehead-.
After oral argument Tuesday,I reviewed 801 CMR 1.02,the Informal Fair Hearing
Rales,as well as 801 CMR 1.01,the Formal Rules. Pursuant to 801 CMR 1.02(4),"Papers shall
be filed according to the procedures set forth in 801 CMR 1.01(4)(a)through(e). I have a
attached there ilations to the letter but not to the fax. That rew on allow a 1p 4'
1 "o' 'MWMM•��'/!rtalMHliY 1 tiiW Iif•W':'.'r NiiYai'a.' Rill }�%�.
0 a� "g' '' shownut does,as opposing cotwse pom out oial�
argument,require that"[1111 requests for extensions of time shall be made by motion before the
expiration of the original or next previous extended time period." The record does not show that
the complainant,Stavis, filed a motion to extend the time to file her appeal before the forty-five
day period was up.
With respect to your question at oral argtuncnt of whether Stavis's failure to abide by the
regulatory requirements of moving for extra time deprived the Hoard of jurisdiction to hear her
case.I found the following language Nissan Motor Colporatien in II A. v.Qmmissioncr of
Revenue.407 Mass. 153, 157(1990)(citing Greeley v ZoningBd ofAMeels of Framingham,
350 Mass. 549, 552(1966))(copies attached):
It has long been the law of the Commonwealth that,when a remedy is created by statute,
and the time within which it may be availed is one of the prescribed conditions for relief,
failure to meet that time limit deprives a judicial body,court,or administrative appeals
board of jurisdiction to hear the case.
Because the 45-day time limit to appeal a decision to the Board hr this case is prescribed by
statute, the Board indeed many have lacked jurisdiction to hear Stavis's appeal. Any of the
Board's argument in its papers and at Tuesday's hearing to the contrary is hereby withdrawn.
we4t '— +il�ft+i�l�'^.w�+w.w.r�+r.r.+•A ,x .r...r.. r.' .w:.....;. '.�... ..:,.ewVl+hv..�rlTe+:nw� :•c=:..moi
Cat
MAR-04-2005 15:32 561 735 9597 99% P.01
MAR-04-2005 03 :25 PM HAROM MACK 561 735 9597 P. 02
■a I I tt __..._.. .
...................................................................
09/30/2004 14:15 FAX 617 727 5783 Aa ADLAM' DIV 009
very truly yours,
Annapurna Balakrisbna
Assistant Attorney General
(617)727-2200,wn.2678
AB
Enclosure
cc: Stuart M�.�H�olber,Esq.
k!P''il:�wi�'t'."M`?yy..VM+'ieo.WF'�.1 '�n.�+w`+` .. ..' •. �G .�-:.•" :..•pts. :t..i'... ;n.sy7c �: .. . . ":?�r�µ�?iq".?�:h�9. .pK.iy."ri.yYtilfievs++�Y►
' ;.a.n.�M`�'ne►':fMi'D1 +rM?�Ar` �Jr�n^i� :�•.;�: •' +ro.?i" a :,p.N, �7il�Mpa�9Cb'�Wfmaat �ii�e�Mr
MAR-04-2005 15:32 561 735 959? 98% P'02
y
LAW OFFICE OF CARL D. GOODMAN
152 Lynnway-Suite IE
LYNN,MA&wHusErr s 01902
781-593-2016— 781-639-8100
781-592-1129 facsimile
carl@attomeygoodman.com
Carl D. Goodman
March 7, 2005 NOTICE OF FILING
Assistant Attorney General Annapurna Balakrishna
One Ashburton Place—Room 2019
Boston, MA 02108
Harold M. Mack, Esq.
25 Kenoza Avenue
Haverhill,MA 01830
Stuart M. Holber, Esq
Phillips, Gerstein,Holber& Channen, LLP
25 Kenoza Avenue
Haverhill, MA 01830
Mr. Thomas St. Pierre
Building Commissioner
City of Salem
Public Property Department
120 Washington Street
Salem,MA 01970
RE: Irving Gordon et al v. Commonwealth of Massachusetts Board of Building Code
Appeals
Essex Superior Court Civil Action ESCV2003-00808
Dear Attorney Balakrishna and Messrs. Mack, Holber and St. Pierre:
} Enclosed please find copy of our filing letter, Document List, and Certificate of Service.
Very truly V0 ,
CARL D. GOODMAN
CDG:hbs
LAW OFFICE OF CARL D. GOODMAN
152 Lynnway-Suite 1E
Lmrr,MASSACHUSETTS 01902
781-593-2016— 781-639-8100
781-592-1129 facsimile
carl@attorneygoodman.com
Carl D. Goodman
March 7, 2005
Clerk's Office-Civil
Essex Superior Court
34 Federal Street
Salem MA 01970
RE: Irving Gordon et al v. Commonwealth of Massachusetts Board of Building Code
Appeal
Essex Superior Court Civil Action ESCV2003-00808
To the Clerk:
Pursuant to Superior Court Rule 9A, enclosed please find Document List together with
the ten (10) listed documents.
Please note that the within documents include a Request for Expedited Hearing.
Ve�r
CARL D. GOODMAN
CDG:hbs
Enclosures
Assistant Attorney General Annapurna Balakrishna
Harold M. Mack,Esq.
Stuart M. Holber, Esq
Mr. Thomas St. Pierre
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS: SUPERIOR COURT DEPT.
OF THE TRIAL COURT
Civil Action#ESCV2003-00808
IRVING GORDON and
HAROLD MACK
PLAINTIFFS
-v-
COMMONWEALTH OF MASSACHUSETTS
STATE BUILDING CODE APPEALS BOARD
DEFENDANT
DOCUMENT LIST PURSUANT TO SUPERIOR COURT RULE 9A(b)(2)
1. MOTION OF PAMELA STAVIS TO INTERVENE,VACATE JUDGMENT&DISMISS
COMPLAINT
2. MEMORANDUM OF LAW IN SUPPORT OF MOTION OF PAMELA STAVIS TO
INTERVENE,VACATE JUDGMENT&DISMISS COMPLAINT
3. AFFIDAVIT OF PAMELA STAVIS
4. AFFIDAVIT OF THOMAS ST. PIERRE
5. REQUEST FOR EXPEDITED HEARING
6. CERTIFICATE OF SERVICE
7. COVER LETTER FROM ATTORNEY STUART M. HOLBER
8. PLAINTIFFS' OPPOSITION TO MOTION TO INTERVENE AS PARTY DEFENDANT,
VACATE JUDGMENT AND DISMISS COMPLAINT
9. MEMORANDUM IN SUPPORT OF PLAINTIFFS' OPPOSITION TO MOTION TO
INTERVENE AS PARTY DEFENDANT,VACATE JUDGMENT AND DISMISS
COMPLAINT
10. CERTIFICATE OF SERVICE(as to filing of the within documents)
L OEmof
Cml D.Good®
152 Lynvwey
LS MA
01902
781-593-2016
1
PAMELA STAV
Byh om
Dated: March 7, 2005
C D. GOD N
152 Lynnway- Suite lE
Seaport Landing
Lynn, MA 01902
Tel: (781) 593-2016; (781) 639-8100
BBO#201720
LewOmof
G 5D. odin®
Go
L Lm
A
Lm
019022
781-593-2016
2
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS: SUPERIOR COURT DEPT.
OF THE TRIAL COURT
Civil Action#ESCV2003-00808
IRVING GORDON and
HAROLD MACK
PLAINTIFFS
-v-
COMMONWEALTH OF MASSACHUSETTS
STATE BUILDING CODE APPEALS BOARD
DEFENDANT
CERTIFICATE OF SERVICE
I certify that a true copy of the Document List and Filing Cover Letter were served this day
by first class mail,postage prepaid,upon the following:
Mr. Thomas St. Pierre Harold M. Mack, Esq.
Building Commissioner 25 Kenoza Avenue
City of Salem Haverhill,MA 0 183 0
Public Property Department
120 Washington Street Stuart M. Holber, Esq.
Salem, MA 01970 25 Kenoza Avenue
Haverhill, MA 01830
Ass't Attorney General Annapurna Balakrishna
One Ashburton Place—Room 2019
Boston, MA 02108
Dated: March 7, 2005
CARL D. GOODMAN
152 Lynnway- Suite IE
Attorney for Pamela Stavis
Lynn, MA 01902
Tel: (781) 593-2016; (781) 639-8100
BBO#201720
Law Off d
Cert D.�
153 Lymrwey
Ly M
01903
951-5913016
1
Ac/e
Herbert P. Phillips, P.C.
Michael A. Gerstein LAW OFFICES OF
Stuart M. Holber rn� tpry p. /►p) //7��{�{�p
Russell S. Channen / s,fiefs .1/Vy flotba&{.�/lN/U LV i� c LLP
Lynne A.Saben ��IINW/UU LLVV�D
Lora M. McSherry
25 Kenoza Avenue■ Haverhill, MA 01830
Of Counsel: Tel: (978) 374-11311(800) 457-6912 ■ Fax: (978) 372-3086
Harold N. Mack www.pghclawcom
Jane M. Owens Triano
March 4, 2005
Via Rerular Mail& Fax
Carl D. Goodman
Law Office of Carl D. Goodman
152 Lynnway- Suite IE
Lynn, MA 01902
Re: Irving Gordon et al v. Commonwealth of Massachusetts
Board of Building Code Appeals
Our File No.03-138
Dear Mr. Goodman:
Enclosed please find Plaintiff's Opposition to Motion to Intervene accompanied by a
Memorandum with an exhibit. I am sending you the original and a copy by regular mail today and
faxing a copy to you.
Very truly yours,
.3�
Stuart . Holber
SMH:eah
Enclosures
cc: Client
Annapurna Balakrishna
Thomas St. Pierre
G:\A.\Goodman 030405.Mack.,vpd
All attorneys admitted in Massachusetts.
Holber and Saben admitted also in New Hampshire.
Holber admitted also in Maine.
Other office: 32 Saco Avenue, P.O. Box W, Old Orchard, ME 04064 Reply to Haverhill office only
"'k
4
COMMONWEALTH OF MASSACHUSETTS
ESSEX,ss. SUPERIOR COURT DEPT.
C.A.NO.3-00808
IRVING GORDON and HAROLD MACK, }
Plaintiffs )
V. )
COMMONWEALTH OF MASSACHUSETTS )
STATE BUILDING CODE APPEALS BOARD, )
Defendant )
PLAINTIFFS' OPPOSITION TO MOTION TO INTERVENE
AS PARTY DEFENDANT VACATE JUDGMENT AND DISMISS COMPLAINT
Plaintiffs, Irving Gordon and Harold Mack, hereby oppose the Motion of Pamela Stavis, the
Applicant herein,to intervene as a Party Defendant,to vacate Judgment entered on October 27, 2004 and
to dismiss the Complaint on which said Judgment was based.
As reason for their opposition,Plaintiffs generally assert thatthe only avenue available to challenge
the decision(s) of the State Building Code Appeals Board was to bring an action against the Defendant
Agency pursuant to Superior Court Standing Order 1-96, the processes of which Plaintiffs have fully
complied. While the Applicant may have been an interested person,it had no standing as a Party Defendant.
In addition,for reasons articulated in Plaintiffs' Supporting Memorandum,Applicant's Motion to
Vacate Judgment and Dismiss Complaint must be denied.
Plaintiffs request that the Court schedule a hearing on this Motion.
Respectfully submitted,
IRVING GORDON AND HAROLD MACK
By their attorney, n ��
'Stuart M.Holber,BBO#237840
Phillips,Gerstein,Holber&Channen,LLP
25 Kenoza Avenue
Haverhill,MA 01830
DATED: S (978)374-1131
CERTIFICATE OF SERVICE
1, Stuart M. Holber,hereby certify that I have this day served the foregoing Plaintiffs' Opposition
to Motion to Intervene as a Party Defendant,Vacate Judgment and Dismiss Complaint by mailing a copy,
first class postage prepaid to the Law Office of Carl D.Goodman, 152 Lynnway,Suite I E,Lynn,MA 01902,
Annapurna Balakrishna, Special Assistant Attorney General,Government Bureau, One Ashburton Place,
Room 2019,Boston,MA 02108-1598 and Thomas St.Pierre,Building Commissioner,City of Salem,Public
Property Dept., 120 Washington Street, Salem,MA 01970
DATED:
'Stuart M.Holber
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPT.
C.A. NO. 3-00808
IRVING GORDON and HAROLD MACK, )
Plaintiffs )
V. )
COMMONWEALTH OF MASSACHUSETTS )
STATE BUILDING CODE APPEALS BOARD, )
Defendant )
MEMORANDUM IN SUPPORT OF PLAINTIFFS' OPPOSITION TO MOTION TO
INTERVENE AS PARTY DEFENDANT,VACATE JUDGMENT
AND DISMISS COMPLAINT
STATEMENT OF THE CASE
The procedural history of this case is largely set out in the Applicant's statement of the case
and needs no repeating.
The singular premise upon which the Applicant seeks to intervene as a Party Defendant and
to cause vacating of this Court's Judgment and to dismiss the underlying Complaint is that the
Applicant was not served with the Complaint pursuant to the Massachusetts Rules of Civil
Procedure. (MRCP) It would appear that but for the fact that the Applicant was not served with a
copy of the Complaint to Vacate (in which she was not named as a Defendant) together with a
Summons pursuant to the literal and technical requirements of Rule 4 of the Massachusetts Rules
of Civil Procedure, she would have had no reason to file her instant Motion because "I would have
engaged counsel to represent me . . ." (Affidavit of Applicant filed in support of Motion). For all
the reasons hereinafter set forth,Applicant's Motion is without factual or legal support and must fail.
APPLICANT HAS NO STANDING TO INTERVENE AS A PARTY DEFENDANT
Plaintiffs submit that under G.L.Chapter 30A§14 as explicated by Superior Court Standing
Order 1-96 (as amended), Applicant has no standing as a Party Defendant. Clearly, under 1-96,
there is only one Party Defendant, namely the Administrative Agency whose decision is being
challenged, service upon which is not subject to challenge. The purpose of effectuating service in
accordance with MRCP on a Defendant in any civil action is to bring that party under the jurisdiction
of the Court for the purposes of resolving the dispute between the Plaintiff and Defendant. The
dispute upon which Judgment entered was not between the Plaintiffs and the Applicant,but between
the State Building Code Board of Appeals, which granted a variance, and the Plaintiffs who
challenged the Agency Decision.
While G.L. c.30A §14(2) does call for service of process via MRCP on "each party to the
Agency proceeding", the purpose of such notice is not to make the non-agency party a Party
Defendant. As said provision makes clear,the purpose of service of the Complaint on each party
to the proceeding is to put the party on notice of the action being brought against the Agency and
permit intervention as a Party in Interest,not as a Party Defendant. Contrary to the position of the
Applicant,the absence of service of the Complaint pursuant to MRCP on the Applicant does nothing
to undermine the jurisdiction of the Court to act on Plaintiffs' Complaint to vacate the decision(s)
of the State Building Code Board of Appeals.
The acknowledged absence of service of the Complaint via MRCP thus leaves open three(3)
questions to be answered: First: Did the Applicant have independent notice of the filing of the
Complaint to Vacate, and if so, when?
2
Second: If the Applicant had such notice, did she exercise her 30A §14 (2) option to
intervene in a timely fashion in the proceeding before the Court?'
Third: Either with or without intervention could the Court's decision on timeliness of the
Applicant's underlying appeal to State Building Code Board of Appeals be undermined?
It is undisputed that on May 6, 2003, one day after the Complaint was served upon the
Defendant, Massachusetts State Building Code Appeals Board, a copy of said Complaint with a
letter of enclosure was sent by regular mail to the Applicant and to the Building Commissioner of
the City of Salem. (Said letter is attached as Exhibit"B"to Affidavit of Thomas St.Pierre,Building
Commissioner, submitted by Applicant in support of her Motion.) It is thus clear that Applicant's
having taken no action to intervene until after Judgment was entered,and nearly two(2)years after
notice of the pending Court action,is grossly untimely?
Even if Applicant had intervened in a timely fashion or assuming arguendo the Court would
permit intervention as a Party in Interest today,the Court's decision on timeliness,based upon the
'MRCP Rule 24(a)requires that a Motion to Intervene be filed "upon timely application".
'Not only is the Applicant's assertion that she did not become aware of the Court action
until late January, 2005, and "was otherwise unaware of the action",belied by Plaintiffs' letter of
May 6, 2003,her claim of untimely notice of the Complaint to Vacate is particularly unseemly in
light of Applicant's own conduct which resulted in the very decision(s)of the Board of Appeals
that are the subject of the Complaint: Having installed the automated chairlift in a common area
exit stairway without prior knowledge of Plaintiffs who have equal rights of access thereto;
having sought permission from the Board of Trustees of the Condominium Association to install
such a chair in the event it were needed in the future and then immediately installing the chairlift
without a required permit; taking an appeal from the notice of the Building Inspector that the
installation was in violation of the State Building Code without notice of said appeal to
Plaintiffs; and giving no notice to Plaintiffs (just as the Board itself failed to do) as to the initial
Hearing which resulted in the Applicant obtaining a variance with the cooperation of the
Building Commissioner and without opposition from the Condominium Association.
3
Administrative Record of the Agency proceedings could not be undermined.
With respect to the issue of timeliness, no argument can reverse the Court's correct
conclusion that the Applicant's appeal to the Appeals Board was late filed "rendering the Board
without jurisdiction to act on the requested variance". (See Clerk's Notice dated October 4,2004,
Entry #15 of Court's Docket Entry; see also Judgment dated October 27,2004,Entry#16.)
The Administrative Record ofthe Agency proceedings establishes and the Board itself found
that on or about October 30,2002,the Building Inspector notified the Applicant that the installation
of the chairliR was a violation of the State Building Code and "needs to be removed as early as
possible." (Adm.Record,pg. 25)The appeal by the Applicant to the State Building Code Appeals
Board was dated January 16, 2003. The appeals form filed by the Applicant erroneously, and
Plaintiffs submit knowingly, misrepresented that the Order being appealed from was:dated
December 10,2002 in order for the appeal on its face to appear timely. (Adm. Record,pgs,5-7)'
It is beyond argument that the Applicant's appeal was time barred because it failed to meet
the requirement that such appeals be taken within forty-five(45)days of the notice from the Building
Commissioner of the October 30, 2002 "interpretation,order,requirement or direction". (See 780
CMR 122.1;Standard Adjudicatory Rules of Practice and Procedure,801 CMR 1.0 1,Subparagraph
(4) (a); 801 CMR 1.02, Subparagraph 4.)^
3 A the Rehearing on the Applicant'sappeal,the Applicant had no explanation as to entry
of December 10, 2002 as the date of the Order being appealed. It is significant to note that at
Rehearing, the Chairman of the Board of Appeals acknowledged that the appeal was late filed,
observing that it meant nothing to the Board, and that the Court might look at it differently.
(Adm. Record, pgs. 7 & 8)
^It should be noted that in its post argument letter to the Court dated September 30, 2004,
the Special Assistant Attorney General acknowledged that Plaintiffs' position regarding
4
THE JUDGMENT ENTERED ON OCTOBER 27 2004 SHOULD NOT BE VACATED
The Applicant seeks vacating of the Judgment of this Court on the basis of subparagraphs
(1), (3) and/or (6) of MRCP Rule 60(b). In support thereof, Applicant relies on the failure of
Plaintiffs to serve the Complaint pursuant to MRCP Rules 4 and 5,thus preventing Applicant from
intervening in the Court proceeding before Judgment entered ("excusable neglect"); that the
Judgment is clearly based upon misinformation furnished to the Court"("misrepresentation or other
misconduct of an adverse party");and that Applicant had"any other reason justifying relief from the
operation of the Judgment".
Before addressing the merit of the Applicant's argument, it must be noted that vacating of
a Judgment under Rule 60(b) is premised on the discretion of the Motion Judge, Trustees of
Stiemative Fathers. Inc. v. Secretary of Administration and Finance (19761 341 N E 2d 662 369
Mass 562. . .
Exercise of judicial discretion should favor resolution of disputes on their merits rather than
upon technical procedural grounds, particularly when procedural failure involves ancillary aspect
of case. Broome v. Broome,(1996) 662 N.E. 2d 224,40 Mass.App. Ct. 148 '
The absence of service of the Complaint in strict compliance with the MRCP did not"excuse
the neglect" of the Applicant in failing to intervene pre judgment in the Court proceeding. As
timeliness was"correct and that "any of the Board's argument in its papers and at Tuesday's
Hearing to the contrary is hereby withdrawn". (Copy of said letter is attached hereto as Exhibit
"A".)
'The alleged procedural failure, i.e. of not serving the Complaint via the standards of
MRCP is clearly an ancillary aspect to the true issue on the case,namely entering a Judgment
based upon lack of timeliness of Applicant's appeal to the Board of Appeals, which issue was
litigated before the Administrative Agency at which the Applicant was present and testified.
5
previously noted,a copy ofthe Complaint was served upon Applicant by regular mail,as it was upon
the Building Commissioner of the City of Salem (as evidenced by Exhibit "B" of Affidavit of the
Building Commissioner) receipt of which was acknowledged by the Commissioner.
In terms of Rule 60(b)(1),the issue is not whether Applicant was served in strict compliance
with MRCP,but whether the Applicant had timely and independent notice of the Petition to Vacate
filed by Plaintiffs. The record establishes that Applicant had such notice but ignored it.
While the Applicant alleges that the Judgment is based upon "misinformation furnished to
the Court" (presumably implicating 60(b)(3) and/or (6)), the premise upon which such a claim
appears to be made is at best disingenuous. The argument seems to be that on the issue of
timeliness, which is the basis on the Court's Judgment,the Notice of the Building Commissioner
of October 30,2002 that the chairlift"needs to be removed as early as possible" was not served by
the Building Commissioner pursuant to 780 CMR 1186 in that it was sent by first class mail 3;There
was no "misinformation furnished to the Court" by Plaintiffs or the Attorney General representing
the Defendant State Building Code Appeals Board regarding the method of service by the Building
Commissioner of his October 30,2002 notice,because it was a non-issue.
This argument should have been made by the Applicant at Rehearing before the Board of
Appeals when the issue oftimeliness was aggressively(but unsuccessfully)pressed by the Plaintiffs.
No such argument was raised by Applicant,who chose to appear without counsel. It was certainly
not "excusable neglect" for the Applicant to choose not to be represented by counsel before the
Appeals Board. The Applicant must suffer the consequences of her failure,whether with or without
6
s
counsel,to raise the issue of service before the Board of Appeals and cannot do so now.6
Based upon the foregoing,it is submitted that a sound exercise of judicial discretion compels
the rejection of Applicant's Motion to Vacate Judgment.
NEITHER LOGIC, EQUITY, G.L. CHAPTER 30A §14 OR MASS. R.CIV. P. RULE 4(.n
PROVIDES ANY BASIS FOR DISMISSING OF PLAINTIFFS'
COMPLAINT TO VACATE
As previously noted,the absence of service of the Complaint pursuant to the MRCP cannot
vitiate the jurisdiction of this Court to act on Plaintiffs' Complaint to vacate the decision(s) of the
State Building Code Board of Appeals. A reading of G.L. c.30A§14(as well as Standing Order 1-
96) makes it clear that the only Party Defendant against whom Plaintiffs seek relief is the
Administrative Agency. In this action, it seeks no relief against the Applicant. This Court has
jurisdiction when the Plaintiffs have complied with G.L.c.30A§14(1)-to wit:filing a timely action
against the Board of Appeals and serving same upon the Board. Nowhere does G.L. c.30A §14
mandate that any other parry must be joined as a Party Defendant nor does Subparagraph (2) of
c.30A§14 state additional jurisdictional requirements. As such,whether for the purposes of timely
intervention,Applicant,as a party to the agency proceeding,must be served pursuant to the MRCP
is irrelevant as to jurisdiction by the Court over the Board of Appeals.'
'The Applicant also elected not to be represented by counsel at the first hearing on her
appeal where, in the absence of the Plaintiffs,the issue of timeliness of her appeal was not raised.
'It is significant to note that the only reference to any parry(other than the Defendant
Agency) in G.L. c.30A §14 is in connection with "the right to intervene in the proceeding for
review. No such intervention is required. Note also that only the Agency is required to file an
answer and file the "original or a certified copy of the record of the proceedings under review."
7
PLAINTIFFS DO NOT LACK STANDING TO BRING THIS ACTION
Simply stated,Plaintiffs have standing to bring this action because,as parties aggrieved by
the decision(s) of the board of Appeals,they are entitled to judicial review by virtue of G.L. c.30A
§14.
Applicant's claim that as owners/occupants of two (2) condominium units of the same
building where Applicant's condominium unit is located,Plaintiffs have ceded the management and
control of the common areas to the Condominium Association is misplaced as it is untimely. G.L.
c.187A §10 (b) (4) does not preclude a unit owner from litigating issues that affect the use of his
condominium. Bernstein v. Chief Building Inspector(2001) 754 N.E. 2d 133, 52 Mass. App. Ct.
422. Condominium Association authority is tempered by the fact that it may act only for the benefit
of all the Association Unit Owners and not a particular claim that benefits less than all the
Association Unit Owners.' Church v. General Electric Co.,D Mass. 2001, 138 F. Supp. 2d169.
CONCLUSION
Based upon the foregoing arguments and the record before this Court, it is respectfully
submitted that Applicant's Motion to Intervene as Party Defendant,vacate Judgment and dismiss
Complaint should be denied.
'The total number of owner/occupant units in the Condominium Association is in excess
of one hundred fifty (150). The instant litigation impacts only four(4) of said units.
8
Respectfully submitted,
IRVING GORDON AND HAROLD MACK
By their attorney,
Stuart M. Holber
Phillips, Gerstein,Holber& Channen, LLP
25 Kenoza Avenue
Haverhill,MA 01830
(978) 374-1131
BBO#237840
DATED:
CERTIFICATE OF SERVICE
1, Stuart M. Holber, hereby certify that I have this day served the foregoing Plaintiffs'
Memorandum in Support of Plaintiffs' Opposition to Motion to Intervene as a Party Defendant,
Vacate Judgment and Dismiss Complaint by mailing a copy,first class postage prepaid to the Law s
Office of Carl D. Goodman, 152 Lynnway, Suite 1E, Lynn, MA 01902, Annapurna Balakiishna,
Special Assistant Attorney General,Government Bureau,One Ashburton Place,Room 2019,Boston,
MA 02108-1598 and Thomas St. Pierre, Building Commissioner, City of Salem, Public Property
Dept., 120 Washington Street, Salem, MA 01970
DATED: ?q7r f
foam M. Holber
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CIL
INDEPENDENT LIVING CENTER
of'the North Shore and Cape Ann, Inc.
27 CONGRESS STREET, SUITE 107 • SALEM, MA 01970
(978) 741-0077 v/TTY • TOLL FREE: (888) 751-0077 v/Try
FAx: (978) 741-1133 • CAPE ANN BRANCH: (978) 283-4000 ExT. 366 v/Try
EMAIL: Information@ilcnsca.org • WEB ADDRESS: www.ilcnsca.org
SERVING:
Beverly
Danvers January 6, 2003
Essex Mr. Thomas M. Riley, B.S.M.E, Code Development Manager
Board of Building Regulations and Standards
Gloucester One Ashburton Place, Room 1301
Hamilton Boston, MA. 02108
Ipswich Dear Mr. Riley:
Lynn Pamela Stavis of 69:Weatherly Dr. in Salem, MA is a person with a disability and
Lynnfield is my consumer at the Independent Living Center of the North Shore and Cape
Ann, Inc. (ILCNSCA) in Salem. Pamela is requesting a hearing with the Board of
Manchester Building Regulations and Standards to allow her to request a variance to allow
By-The-Sea her to retain the use of her installed stair glide that provides her access up the
common stairway leading to her condominium.
Marblehead
This past summer, prior to Pamela and her husband purchasing their
Middleton condominium, Pamela requested and received permission from Mr. Thomas St.
Nahant Pierre, Acting Building Commissioner in Salem, MA to install a stair glide. Pamela
also got permission from the Board of Trustees at her condominium
Peabody development. Then the stair glide was purchased and installed by Pamela.
Rockport In October she received a letter from Mr. St. Pierre notifying her that the stair
Rowley glide needed to be removed as it violated building codes. Pamela should not be
affected by this mistake made by Mr. St. Pierre and be displaced from her home.
Salem Pamela has the right to have access to her home and be grated a reasonable
accommodation allowing the stair glide to remain for her use. She cannot be
Saugus forced to move from her condominium.
Swampscott Under the Federal Fair Housing Act of 1988 [42 U.S.C. §§ 3535 & 3600-3620
Topsfield (Supp. 1997)] and the Massachusetts Housing Bill of Rights of 1989 [G.L. c. 151B
§4 (Supp. 1997)] Pamela is allowed civil rights protection as an individual with a
Wenham disability prohibiting discrimination in the sale, rental or conditions of occupancy
of a dwelling because of a person's disability. Also, accommodations must be
made to rules or policies if the accommodations are needed for a person with a
disability to use or enjoy the premises. A person with a disability may make
reasonable modifications to the premises at his/her own expense.
"OUR GREATEST NEED AS HUMAN BEINGS IS THE FREEDOM TO PURSUE OUR DREAMS"
f•
e
Please consider this information and understands that Pamela will need to apply
for and obtain a variance on this issue. If you have any questions or need further
information, please contact me at (978) 741-0077 V/T or by email at
Smcduff@ilcnsca.org. Thank you.
Sincerely,
CMS, ��4
Shawn J. McDuff
Director of Access & Advocacy
Cc: Mary Margaret Moore, Executive Director, ILCNSCA; Pamela Stavis CSR; file.
` l
' l Management Report
April 24, 2002
Page 2
7. Insurance Deductible: Dennis Kondracki of Brewer and Lord will be attending
the meeting on Wednesday. I have"enclosed a copy of the coverage we currently
have through August28`h, along with the Insurance Section of the Condo Docs.
8. Six Plex Restoration Project: Last month,the Board approved Osgood Painting
for the wallpaper and painting portion of this restoration project. I sent notice to
all homeowners affected by this project looking for one volunteer per building.
We met on site with Osgood on Tuesday, April 9s' and the committee made their
selections. I have,requested that Osgood supply me with larger samples, but have
not received it to date. I will bring the selections.to the meeting on Wednesday.
Carpet Replacement/Six Plex Restoration: I have contacted Landri and Acari
for an estimate on carpet. They had declined to bid. Osgood quoted$2500 per
building and advised that he would use the same quality as was present in 24
Weatherly Drive. Durkin Flooring bid$2475 per building for this same product.
Since the Board has already awarded the wallpaper and painting portion of this
job to Osgood Painting Services, I recommendawarding thin the carpet
replacement as well. We will discuss this matter on Wednesday.
9. Meeting With Scott Shaul: I have not been successful in meeting with Scott
Shaull. I did send a letter to him on April 1st. I have not had a written response.
He did advise that he would get something to me in writing. I did speak with
Brian Humphrey on site at Pro Con. The lights are on their transformer and they
are paying the bills. You may have noticed the lights are on constantly and I was
told they would be for another week or two while they work on this. Scott did
advise that they would not be making any monetary donation to us to clean any of
our buildings. All other items on my letter of April first are still unanswered, i.e.
completion dates for the island repairs. Brian indicated another week or two.
1
10. Unit Owner Request/Rear walkway at 58-68: The Board approved this request
noting some changes. The crew did hit an irrigation line when installing the
forms. I called Comak Bros. to make the repair and notified Mr. Tremblay. He
asked me to forward the bill to him for payment. We will upon receipt,
11. Buyer Request Stair Glide: I received a call from a potential buyer of a six-plex
building. He asked if the need for a stairway lift were necessary, would the Board
approve this. He has a wife who may soon be in a wheel chair. He is interested
in a middle floor unit in a six plex. I have enclosed some information on this
product.
Management Report
May 22, 2002
Page 3
Insurance(Cont.): I have also enclosed a sample Ietter for insurance coverage for
owners. I have put most of this information in prior Newsletters. It is a good tool
for owners to be sure they have proper coverage that will dovetail with our Master
Policy.
7. Six Plex Restoration Project: Last month, the Board approved Osgood Painting
for the refurbishing project in four of the six-plex buildings. I advised Pat
Osgood of the Board's decision. He plans to begin work in June. He was out this
week measuring for wallpaper. I will get the contract to him within the next week
or so.
8. Unit Owner Request/Rear walkway at 58-68: The Board approved this request
noting some changes. The crew did hit an irrigation line when installing the
forms. We paid Comak Bros. and charged the owner. He has since made
payment in full.
Betty and I also had calls from Mr. Hanley, (the other owner on the lower level).
He was not happy that he was not consulted or included. (Please note; notice was
sent to all owners that this work was going to take place). I advised this owner
that this walkway was installed at the owner's expense and I put him in contact
with the contractor. I have not yet.heard back, but I do expect to.
9. Buyer Request Stair Glide: Last month we discussed a request from a potential
buyer of a six-plex building for a stairway lift in the rear hall of#63-73 Weatherly
Drive. I did check with the Building Inspector and sent the information along to
the Board. This is within the guidelines for egress.
10. Six Plex Unit Door Damage: Last month we discussed the responsibility of
repairs to the door, which was damaged during a medical emergency. The Board
agreed to seek the opinion of their attorney. Tim Davern spoke with Mr. Galvin
and requested a written opinion. As of this time I have not received it.
NEW BUSINESS: i
11. Landscaping Items: Joan Rabone, Michael Barbuzzi and I walked the property
on Monday, May 6`h. Joan put together a report(dated May 9`h), which was
forwarded to the Board. I have also received Michael's notes, which are enclosed
for your review.
At the last meeting, there was concern with the hoses and the attention given to
America Way. Joan sent me a letter dated April 28th regarding some of the
`. l
MOTION: Michael moved to accept the proposal for carpet replacement from Osgood at
a cost of$2,500 per building.
SECOND: Robert.
VOTE: Unanimous
STAIR GLIDER/DISCUSSION: Jill supplied the Board with some paperwork given by
a potential buyer requesting the Board's permission to install a stair glider in the rear
hallway of a six plex building, in the event his wife needed this at some point in the
future.
The Board requested that Jill check with the Building Inspector and report back on any
findings.
SIX PLEX DOOR DAMAGE: The Board discussed damage to a six-plex unit door,
which occurred as a result of a medical emergency. Although the door is considered
common area, a Board member did not feel the Association should be responsible for the
cost of repair.
Tim Davern will check with the Association's attorney and report back.
MOTION: Michael made a motion to adjourn at 9:10 P.M.
SECOND: Robert.
VOTE: All were in favor.
i
Minutes of the April 24,2002 Board of Trustees'.Meeting
ESSEX NEUROLOGICAL ASSOCIATES, Y.C.
David J. Crowley, M.D.
Sanlord NI. Levy, M.D.
Andrew I-I. Leader-Cramer, M.D.
Edgar W, Robertson, M.D.
Anna Litvak, M.D.
7911 IGH LAND AVENUE,SUITE 107 2225 BOS'iON SCREET
SALEM,NIA 01970 LYNN,AIA 01904
(978)745-8807 {781}595.68:};5
Fax(978)745-1555 Far(781)599-5070
November 14, 2002
Re: Pamela Stavis
69 Weatherly Drive
Salem, MA 01970
DOB: 10/07/44
To Whom It May Concern:
Mrs. Pamela Stavis has been under my care for neuromuscular disorder with significant
extremity weakness. She requires a chair lift to be able to go up and down stairs. She
is not able to manage stairs otherwise, without the risk of serious damage.
If you have any questions, please contact me at the above phone number or address.
Sincerely
0 , )-� �
Anna Litvak, M.D.
AL:ASNE:bmk
ESSEX NEUROLOGICAL ASSOCIATES,P.C.
David J.Crowley,M.D.
Sanford M.Levy, M.D.
Andrew H. Leader-Cramer,M.D.
Edgar W.Robertson, M.D.
Anna Litvak,M.D.
HI 11101LANDAVENUE 22511O8TONSPREET \ .
SALEM,MA 01WO LYNN,MA (11994
(978)745-8807 (781)595-(i833
Baa(97H)745-37W Par(781)593-5V7,0
April 29, 2002
To Whom It May Concern
Re: Pamela Stavis
DOB: 10/07/44
Mrs. Stavis has been suffering from a variant of.a spinal muscular atrophy.
If you have any questions, please contact me at the above address.
Sincerely,
Anna Litvak, M.D.
AL:ASNE:ejh
.�o CITY OF SALEM9 MASSACHUSETTS
PUBLIC PROPERTY DEPARTMENT
120 WASHINGTON STREET, 3RD FLOOR
SALEM, MA 01970
�AA��71N8 TEL. (978) 745-9595 EXT. 380
FAX (978) 740-9846
STANLEY J. USOVICZ, JR.
MAYOR
Robert & Pamela Stavis
69 Weatherly Drive
Salem, Ma. 01970
Dear Owners:
This dep'artnlent bac ceivc.(l CO'olllalnCS from two [CnalltS In VOLA' )LIIldillu about the
chairlift that is mounted in the stairway. Jill, fiom American Properties, contacted me
several months ago and asl<ed me if the installation of the stairlift would be allowed.
At that time, i checked the Mass State Building Code and found an exception in use
group R-3 that would allow installation of a chair lift.
I relayed this information to Jill who relayed it to you.
However, looking into the use group classification further, f have discovered that the
buildings in your development are use group R-2. The R-2 use group would not allow
the installation of the chair lift.
At this time, I must inform you that the chaff lift is a code violation.
The lift needs to be removed as early as possible.
I apologize for the inconvenience that I have caused you.
If further information is needed or you wish Co discuss this platter, please contact file
directly.
Sincerely,
Thomas St. Pierre
Acting Building Commissioner
cc: Mayors Office
Tom Phillbin
John Keenan
Jill, American Properties
JANEswffr Cgld&n .�.aaeae�ii�aettm 02fOr��6/� rNorCh Chat"'a"'Governor CKa"'a"'GAT
JAMES P.JAJUGA Jir'apu /�l/�/L��✓VG KENTARO TSUTSuM
SPSJOSEPH [ACEI .su THOMAS L ROGER:
CwrrOulorw - - Administrator
STATE I ISE ONLY
Fee Received: STATE BUILDING CODE APPEALS BOARD
Check No.: APPEAL APPLICATION FORM
Received By: 1 1
DOCKET NUMBER: DATE. !,=... )&3
. (State Use Only)
The undersigned hereby appeals to the State Board of Building Regulations and Standards from the decision
of the:
Building Oficial from the City/Town of: K 4X Z
Board of Appeals from the City/Town of:
Other Municipal Agency/Oficial entitled:
State Agency/Official entitled:
OTHER:
Dated./-aej m 1�'.�having been aggrieved by such(check as appropriate)
Interpretation o Order o RrAtpuirement ,o Direction o
Failure to Act o her,. o xpl
All appropriate code scrliong must he id ntifi d All written supporting documentation must be
submitted with this application. Parties may present written material at the hearing. However,the
Board reserves the right to continue the proceeding if such material warrants extensive review.
State Briefly desired relief:
APe of M 8 p C ti� sec-7`,o�
APPELLANT:
ADDRESS FOR SERVICE: Lya no
Telephone No. Q T
ADDRESS OF SUBJECT PROPERTY: /
APPELLANTS CONNECTION TO SUBJECT PROPERTY:_
�1tX2di l4/C-� 77� NA/Y7FL1' Cl J FlVl S
SIGNATURE OF APPEL /REPRESENTATIVE (NAME-PLEASE Pfiff )
2/7/97 (Effective 2/28/97) 780 CNIR-Sixth Edition 679
780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS
THE MASSACHUSETTS STATE BUILDING CODE
DESCRIPTION OF BUILDING OR STRUCTURE RELATIVE TO THE MASSACHUSETTS
STATE BUILDING CODE 780 CMR btb:EDIT(O Check m a ro nate
Check Here if Building is a One or Two Family Dwelling 0 Proceed to section entitled"BriejDescription
of the Proposed Work'.-Do not complete the tables below
DEBt>3�'1, 70HOROEKf98'JWORB{ch cka�lapp77
lfcaWe} "
New Construction Existing Buildirol Repair(s) ❑ Alteration(s) a Addition a
Accessory Bldg. a Demolition a Other ❑ Specify:
Brief Description of Proposed Work:
ttsBiiYit�E>zk'A�,+�oNsrizuort�.P>�' �
USE GROUP(Check as applicable) CONsTRUCTSGN TYPE -
A Assembly a A-1 ❑ A-2 ❑ A-3 a lA a
'A-4 a A-5 a 18 a
8 Business o 2A a
E Educational a 2B a
P Factory a F-1 a F-2 a 2C ❑
8 High Hazard a 3A ❑
1 InsUtutlonal a 1-1 . ❑ 1.2 a 1.3 a 3B o
M Mercantile ❑ 4 ❑
R Residential a R-1 R-2 ❑ R-3 o 5A a
s Storage o S-1 a &2 ❑ 58 ❑
U Utility a specify:
M Word Use a Specify: -
8 Special Use o Spectfy:
GOMPI.EIE l7IIS SECTWN EXISTING-611 LDING UNDERGOING RENOVATIONS ADDITIONSx i..
k?tti.', � "," •: d.
"'RAND R CHANGE IN USE ,a s'';•,'.' ',.. „T s..
Exlating Use Croup: _ Proposed Use Group: _
Existing Hazafd index(780 CMR 34i: .Proposed Hazard Index 1780 CMR 34): ,
BUt).DINGHEIGHI':ANDAREA`����''� '�` .
BUILDING AREA Existing(if applicable) Proposed
Number of Floors or stones include
basement 1e is
Floor Ana per Floor Iso 10P S
Total Area 00
Total Height(ft)
Brief Descritition of the P os W
680 780 CMR.-Sixth Edition 2/7/97 (Effective 2/28/97)
1St.
eaoR 9677FE233
f
MASTER DEED
i
OP
WEATHERLY DRIVE CONDOMINIUM
The undersigned, L. James Zieff, Trustep of Vinnin
Associates Realty Trust u/d/t dated October 21 . 1983 and
recorded with Essex South Registry 6f Deeds . Book 7250, Page
140, (hereinafter referred to as "Declarant") , being the sole '
owner of the land together with the buildings. thereon, located
on Carol Way, Salem, Essex County, Massachusetts, and being
more particularly described in Sections 2 and 3 below, does
hereoy, by duly. executing . and, recording this Master Deed,
submit said land, together with the buildings, improvements and
structures erected thereon, and all easements, rights, and
appurtenances belonging thereto (hereinafter called the
"Premises") , to the provisions of Chapter 183A of the General
Laws of the Commonwealth of Massachusetts, as amended,
("Chapter 183A" ) and does hereby state that said Declarant
proposes to create, and does hereby create, with respect to the
Premises , a condominium (the "Condominium") to be governed by
and subject to the provisions of Chapter 183A, and to that end,.
Declarant declares and provides the following:
1. Name. The name of the condominium shall be the
"Weatherly Drive Condominium" .
2 . Description of Land. The Premises which constitute
the Condominium consists of all of the land together with tae
buildings and all improvements and structures thereon, located
on Carol Way, Salem, Essex County, .Massachusetts, (the
"Condominium Land") as more particularly bounded and described
in Exhibit 1 annexed hereto and incorporated herein.
3 . Description of Building . The Condominium is presently
comprised of a building (the "Building") containing ten (10)
townhouse; multi-level and single level living. condominium.
units (the "Phase I Units") . A more particular descripEion .of
the Building and its construction is described in Exhibit 2
annexed hereto and incorporated herein.
I '
e�a,c 9677F6234
The location of the Building and the access ways, Garage
Spaces, Adjacent Garage Spaces and areas -on the Condominium
Land Comprising Phase I of the Condominium are as . shown on
Sheet 1 of the Recorded Plans (the "Plans" ) listed in a
schedule described in Exhibit 4 annexed hereto and incorporated
I
herein.
In addition to the Phase I Units, the Declarant has
reserved, pursuant to Section 9 hereof, the right to construct
and add additional townhouse, multi-level and single level
living condominium units contiguous to the then existing
Building comprising the Condominium (the "Additional Phases") .
The Phase I Units and all appurtenant rights collectively
are hereinafter referred to as "Phase I" of the Condominium.
If Declarant elects to add any Additional Phases to the yid »
Condominium, pursuant to the provisions of Section 9 hereof, I
the Additional Phases as they are added to the Condominium by
the. recording of an Amendment to the Master Deed with the Essex
South Registry of Deeds, shall be assigned a Phase number in
I In"i i
accordance with its annexation to the condominium with respect
to other Phases. Nothing in this Section shall be deemed to
obligate Declarant to construct any Additional Phases.
4 . Description of Units.
A. The designation of each Phase I Unit ("Unit") in the
Building constituting the Condominium, a statement of its VIII
location, approximate total floor area, number and composition I;.
of rooms, immediate common area to which it has access, and its �',I
percentage interest in the Common Areas and Facilities of. the
Condominium are set forth in Exhibit 3 annexed hereto and
incorporated herein.
The percentage interest of the respective Phase I { t1!I
Units in the Common Areas and Facilities has been determined on
the basis of the approximate relation which the fair value of Nj
each Phase I Unit on the date of the Master Deed bears to the I,? II' li
"then aggregate fair value of a.11 the, Phase I Units .
• FSI, ,;��
B. Each Unit includes the ownership of all utility lines ,
heating, plumbing, electrical, and other apparatus and other r !
equipment, which exclusively serve and are located within the ;' illi`I
individual Unit.
C. Each Unit includes the ownership of the heating and
air conditioning apparatus which exclusively serves that r'•I
individual Unit and is located outs}de such Unit and the owners h
!I!
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2-o33an l
I !,
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I
f it i
• 119l.I�Ii
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y
7
of each Unit shall have the exclusive right, as appurtenant to �
their Unit, to use the lines , pipes, ducts or any other.
equipment connecting said heating and air conditioning
apparatus to and for serving said Unit.
D. The owners of each Unit shall have the right, as
appurtenant to their Unit, to use, in .eommon with the owners of
the other Units served thereby, such entrance to and from the
streets, front and side yards , and such walkways, stairways,
hallways, and vestibules as serve as common access to and from
such Units (each of the foregoing comprises a portion of the €'€
Common Areas and Facilities therefor) . f
I E. Except as hereinbefore otherwise provided, the owners !
of each Unit shall have the right, as appurtenant to their
Unit, to use, in common with the owners of other Units served
thereby, all utility lines and other common facilities located '
in any of the other Units or in the common areas described in
Section 5 hereof, and serving. that Unit. Nothing herein shall
otherwise be construed to limit the right of any owners of a
Unit to use other Common Areas and Facilities in accordance
with the intended purposes thereof.
F. The owners of each Unit shall have the exclusive right p
and easement, as appurtenant to their Unit, to. use the Balcony ;
or Patio, if any, as shown on the Plans immediately adjacent to 4,
their Unit.
G. The owners of each Unit shall have the exclusive right
and easement, as appurtenant to their Unit, to use the Garage
Space ("Garage Space") with the same number designation as
their Unit -but preceded by the letter G and as shown on Sheet 1
of the Plans. with respect to Units ST, 52, 54 and 56 the
Garage for each Unit as shown on the Plans is included within
the boundaries of each of said Unit and is not part of the
Common Areas and Facilities .
H. The owners of Units 50, 52, 54, 56, 58, 60, 62, 64, 66.
and 68. shall have- the exclusive right,. as appurtenant to. their .
Unit, to use the adjacent parking space in front of their
respective Garage Spaces ("Adjacent Garage Spaces") with the
same number designation as their Unit. but preceded by the
letter "AG" and as shown on the Plans solely for the purpose of
parking a vehicle as permitted in Section 7. The right to pass
and repass over said Adjacent Garage Spaces and all other
rights except as mentioned above, shall be held by the owners
of these Units in common with the owners of the other Units in
the Condominium. i
.3-
assxn iL ': ;
IL
M i
J
I . The owners of Units 62, 64 , 66 and 68, being
designated as Glovers and Daltons on Exhibit 3, shall have the
exclusive right, as appurtenant to their Unit, to use the
storage space ("Storage Spaces") in the basement of the
building as shown on the Plans with the same number designation
as their Unit but preceded by the letter YSY and as shown on
the Plans.
J: The Condominium Trust hereinafter described has a .-
right of entry to each Unit to effect emergency repairs or
other necessary repairs to the Unit which the Unit Owner has
failed to perform. Pr-
�r
R. Each Unit shall be subject to rights as set forth in
each of the foregoing subsections, 4
. rr
5 . Description of Common Areas and Facilities. The
Common Areas and Facilities of the Condominium consist of:
A. The land described in Exhibit 1, together with the
benefit of and subject to all rights, easements, restrictions
and agreements, so far as the same may be in force and of
record.
\j
B . All portions of the Building not included in any Unit
by virtue of Section 4 above, including, without limitation,
the following to the extent such may exist from time to time; {'
(i) The foundations, structural members, beams, supports,
exterior walls, exterior doors, frames for the exterior windows 1
and doors leading from Units to common areas, roof and
entrances and exits of the Building, common walls within the �
Building, and structural walls or other structural components
contained entirely within any Unit;
(ii) The main entranceway; steps and stairway, the entrance
vestibule, hallways and stairways serving more than one Unit,
the mailboxes, utility areas, and other facilities zn suti—
hallways, if . any;.
(iii) Installations for common services such as beat,
telephone, electric power, gas, hot and cold water, master
television antennae, including all utility lines and equipment
attendant thereto, but not including equipment contained within
and servicing a single Unit;
(iv) All conduits , chutes, ducts, sewer, drainage, water
and other pipes, plumbing, wiring, flues and other facilities
for the furnishing of services described above in subparagraph
_4_
0SSLN
I,i
BOOR 967711=7
(iii) including all such facilities which are installed in,
upon, or under the land described in .Exhibit 1 and any other
land which is the subject of any easement benefiting said lard
described in Exhibit 1, all such facilities which are contained
in portions of the Building contributing to the structure or
support thereof, and all such facilities contained within any
J Unit which serve parts of the Building other than the Unit
within which such facilities are contained, together with an
easement of access 'thereto for maintenance, repair, and
replacement, as aforesaid;
(v) All fences, land areas, lawns, recreational
facilities, landscaping, patios, balconies, roofdecks, parking
areas, garages , adjacent garage spaces, storage spaces, parking _
spaces and driveways, and facilities, and other improved or
unimproved areas on land, not within any Unit;
(vi) Such additional Common Areas and Facilities as may be
Aefined in Chapter 183A.
The owners of each Unit shall be entitled to an
undivided interest in the Common Areas and Facilities in the .
percentages shown in Exhibit 3 attached to this Master Deed and
incorporated herein by reference. P
G:
The Trustees of the Condominium Trust, may in their
discretion but subject nevertheless to the provisions of -this
Master Deed, designate certain portions of the Common Areas and
Facilities for storage purposes, and such designations or
restrictions shall be upon such terms and conditions, and with
such stipulations and agreements, as the Trustees shall deem
advisable, and the purposes of this paragraph may be carried
out by the Rules and Regulations of the Condominium Trust.
The use of Common Areas and Facilities shall be
subject to the provisions of (a) this Master Deed, (b) the
Condominium Trust, hereinafter referred to in Section 10 hereof
and the By-Laws and Rules and Regulations promulgated pursuant
thereto, and . (c) Massachusetts. General Laws, Chapter 183A as .
amended.
6. Floor Plans. The floor plans of the Building and the
Phase I Units ;herein, together showing the layout of the
Building, setting forth the Units within the Building
constituting the Condominium, and depicting the unit numbers,
layout, location within the Building, and dimensions, main
entrance and immediate common areas to which each Unit has
access, all was built, ' and bearing the verified statement of a
registered architect, re4istered'professional engineer, or
o 55zX
THE COMMONWEALTH OF MASSACHUSETTS
_- OFFICE OF THE ATTORNEY GENERAL
ONE ASHBURTON PLACE
BOSTON, MASSACHUSETTS 02108
MARTHA COAKLEY (617)727-2200
ATTORNI,y GENERAL w ..mass.gov/agn
May 5,2010
Via Electronic Mail
Kerry Whelan
Chief of Staff
Office of State Senator Frederick Berry
Kerry.whelan�Fustatc.ma.us
RE: Stavis v. City of Salem,et al.
MCAD Case No. 08-BPR-02077
Dear Ms. Whelan:
As a follow up to your recent inquiry,this letter sets forth this office's recommendation
for a resolution of the above-referenced case alleging that the City of Salem discriminated
against Robert and Pamela Stavis by refusing to permit the Stavises to maintain a stairlift on the
stairs outside their condominuium building to accommodate Mrs. Stavis's disability.
As you may know,the Stavises bought their home in Salem in 2002 based upon an
assurance from the City of Salem's Building Inspector that they would be able to install a stairlift
in the back stairwell. After they received this assurance,the Stavises agreed to purchase their
condominium unit and installed a stairlift. Due to Mrs. Stavis' physical condition, she is unable
to walk up and down the stairs and requires the assistance of a stairlift. Months after they moved
into their home, the City's Building Inspector informed the Stavises that the stairlift violated the
building code. The Stavises then petitioned the State Building Code Appeals Board for a
variance. The SBCAB issued a variance. A group of the Stavises' neighbors appealed the
issuance of the variance to the Superior Court. The Superior Court reversed the SBCAB's
decision based on the it's finding that the Stavises' petition to the SBCAB was untimely. The
Appeals Court affirmed the Superior Court decision. The stairlift remains in place at the
Stavises' condominium as it has since 2002, and the Stavises' dispute with the neighbors was
resolved by a private agreement and is no longer being contested. Nevertheless, shortly after the
Appeals Court issued its decision,the City's Building Inspector sent the Stavises a letter
notifying them that they had to remove the stairlift. Mrs. Stavis' medical condition still
necessitates the use of a stairlift.
To resolve this matter, and as a reasonable accommodation to Mrs. Stavis's disability, we
have recommended that the City either issue a permit for the stairlift and/or agree not to require
the Stavises to remove the stairlift ,which continues to be necessary for Mrs. Stavis to access her
{
home. We are hopeful that the City will consider this resolution and that we can bring needed
closure to the Stavises' situation.
My colleague,Patricio Rossi, and I are available to discuss this matter further. Please
contact us at 617-963-2068 if you have any questions.
Sincerely /�
w fey,
/`+t'Maur T. HeaC ief�
Civil Rights Divisi
Office of the Attorney General
LAW OFFICE OF CARL D. GOODMAN
152 Lynnway—Suite IE
LYNN,MASSACHUSETTS 01902
781-593-2016— 781-639-8100
781-592-1129 facsimile
carl@attomeygoodman.com
Carl D. Goodman
February 16, 2005
Assistant Attorney General Annapurna Balakrishna
One Ashburton Place—Room 2019
Boston,MA 02108
Harold M. Mack, Esq.
25 Kenoza Avenue
Haverhill,MA 01830
Stuart M. Holber, Esq
Phillips,Gerstein,Holber&Channen, LLP
25 Kenoza Avenue
Haverhill,MA 01830
Mr.Thomas St. Pierre
Building Commissioner
City of Salem
Public Property Department
120 Washington Street
Salem,MA 01970
RE: Irving Gordon et al v. Commonwealth of Massachusetts Board of Building Code
Appeals
Essex Superior Court Civil Action ESCV2003-00808
Dear Attorney Balakrishna and Messrs. Mack, Holber and St. Pierre:
Pursuant to Superior Court Rule 9A, enclosed please Fund the following:
1. MOTION OF PAMELA STAVIS TO INTERVENE,VACATE JUDGMENT&
DISMISS COMPLAINT CERTIFICATE OF SERVICE
2. MEMORANDUM OF LAW IN SSUPPORT OF MOTION OF PAMELA STAVIS TO
INTERVENE,VACATE JUDGMENT&DISMISS COMPLAINT
3. AFFIDAVIT OF PAMELA STAVIS
4. AFFIDAVIT OF THOMAS ST.PIERRE
5. REQUEST FOR EXPEDITED HEARING
6. CERTIFICATE OF SERVICE
Please serve any opposition within the appropriate time allowed under Rule 9A.
Very truly yours,
CARL D. GOODMAN
CDG:hbs
Enclosures
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS: SUPERIOR COURT DEPT.
OF THE TRIAL COURT
Civil Action#ESCV2003-00808
IRVING GORDON and
HAROLD MACK
PLAINTIFFS
-v-
COMMONWEALTH OF MASSACHUSETTS
STATE BUILDING CODE APPEALS BOARD
DEFENDANT
MOTION OF PAMELA STAVIS
TO INTERVENE,VACATE JUDGMENT&DISMISS COMPLAINT
INTERVENTION
Now comes Pamela Stavis and respectfully moves that this Honorable Court permit her to
intervene as a party defendant in the within action pursuant to Mass.R.Civ.P.R. 24(a). As reason
therefore,the moving party states she was the applicant/appellant in the proceedings before the
State Building Code Appeals Board from which the plaintiffs' appeal was taken and accordingly,
pursuant to G.L. c. 30A §14(2) she is entitled to intervene and service was required to have been
made both"on the agency and each party to the agency proceeding in accordance with the
Massachusetts Rules of Civil Procedure governing service of process." Neither Pamela Stavis nor
the City of Salem Building Commissioner were served in violation of G.L. c. 30A and Mass.
R.Civ.P 4. As the statute authorizing the plaintiffs' appeal from the State Building Code Appeals
Board permits intervention as a matter of right and mandates that service be made on each party to
the agency proceeding,the moving party was a necessary party and is entitled to intervene as a
matter of right.
Law Office Of
C D.Good.
152 LSmway
Lp MA
01902
781-593-2016
1
VACATE JUDGMENT
Pamela Stavis further moves that this Honorable Court vacate the judgment entered in this
action on October 27,2004 pursuant to Mass.R.Civ.P. 60(b)(1),(3), and(6)on the basis that the
moving party who was the applicant/appellant in the proceedings before the State Building Code
Appeals Board from which the plaintiffs' appeal was taken and no service was made upon her
contrary to the provisions of G.L. c. 30A §14(2) and she was otherwise unaware of the within
action. Therefore she was deprived of the opportunity to defend the action.
DISMISSAL
Pamela Stavis further moves that the Court dismiss the within complaint on the basis that
G.L. c. 30A §14(2)mandates service upon all parties to the underlying agency proceeding"in
accordance with the Rules of Civil Procedure"and no such service was not made upon her within
ninety(90)days of the filing of the complaint contrary to the requirements of Mass.R.Civ.P. 40)
and the plaintiffs lack standing to bring the appeal and therefore the compliant must be dismissed
pursuant to Mass.R.Civ.P. 12(b)(1)and(6).
In support of all of the foregoing,Pamela Stavis relies upon her affidavit filed herewith,the
Affidavit of Thomas St. Pierre, the Memorandum of Law filed herewith, and the docket,papers and
records of this action.
PAMELA STA
B er tt
Dated: February 16, 2005
CARn. GOODMAN
152 Lynnway- Suite 1 E
Seaport Landing
Lynn,MA 01902
Tel: (781) 593-2016; (781) 639-8100
BBO#201720
1n OB'se of
c11 A Ooodlm
152 Ly.wq
Ly I
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1. f
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS: SUPERIOR COURT DEPT.
OF THE TRIAL COURT
Civil Action#ESCV2003-00808
IRVING GORDON and
HAROLD MACK
PLAINTIFFS
-v-
COMMONWEALTH OF MASSACHUSETTS
STATE BUILDING CODE APPEALS BOARD
DEFENDANT
MEMORANDUM OF LAW IN SUPPORT OF MOTION OF PAMELA STAVIS
TO INTERVENE, VACATE JUDGMENT&DISMISS COMPLAINT
STATEMENT OF THE CASE
This action was commenced on April 22, 2003 by the filing of the Complaint to Vacate
Decision of State Building Code Appeals Board. The action seeks to set aside a decision of the
State Building Code Appeals Board granting a variance to Pamela Stavis, the original applicant,
who suffers from Muscular Dystrophy, for the maintenance of a chair lift in a stairway in her
condominium building in Salem. A Summons with a purported Proof of Service of Process was
filed on May 12, 2003 [Docket Entry#2]. No other return of service was filed. Service was made
by certified mail on the Commonwealth of Massachusetts State Building Code Appeals Board
(hereinafter the"State Board"). An Answer of the State Board was docketed on June 9,2003. On
July 25,2003,plaintiffs Amended Complaint was docketed. The attached Certificate of Service
certified service by first class mail on the State Board's attorney(Special Assistant Attorney
General). On September 3,2003, the plaintiff filed their Second Amended Complaint. The
attached Certificate of Service certified service by first class mail on the State Board's attorney
(Special Assistant Attorney General).
Low of«or
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r ,
Thereafter,the Administrative Record was filed by the State Board, a Motion to Present
Evidence of Irregularities in Procedures and to Present Additional Evidence was filed by the
plaintiffs and was denied without prejudice. A Supplemental Transcript was filed on June 10,2004
and on July 12,2004 the plaintiffs filed their Motion for Judgment on the Pleadings.
Correspondence from the Special Assistant District Attorney to Judge Whitehead was docketed on
October 4, 2004 and on October 4, 2004 the Court vacated the decision of the State Board and
Judgment entered on October 27, 2004 on the grounds that the appeal to the State Board was not
timely filed by the original applicant.
ISSUES PRESENTED
1. Whether Pamela Stavis,as the original applicant to the State Board, is entitled to intervene
in this action.
2. Whether the judgment entered on October 27, 2004 should be vacated pursuant to Mass.R.
Civ.P. Rule 60(b)(1), (3), and/or(6) due to the plaintiffs failure to comply with G.L. c.30A §14(2),
780 CMR 122.6, Mass.R.Civ.P. Rule 4(c), (d), and 0) and on the basis that the record reflects that
the basis upon which the judge allowed the Motion for Judgment on the Pleadings was the result of
the Court being provided with erroneous information as to the timeliness of the original filing with
the State Board.
3. Whether,upon vacating judgment,the Complaint should be dismissed due to the plaintiffs'
failure to serve process within the time permitted by Mass. R.Civ.P. Rule 40) and pursuant to Mass.
R. Civ. P 12(b)(1)and(6)for Lack of Standing by the Plaintiffs.
1. PAMELA STAVIS IS ENTITLED TO INTERVENE
G.L. c. 30A §14(2)provides:
Service shall be made upon the agency and each party to the agency proceeding
in accordance with the Massachusetts Rules of Civil Procedure governing
service of process. For the purpose of such service the agency upon request shall
Law Dfceuf certify to the plaintiff the names and addresses of all such parties as disclosed by its
Cmi D.aoodfeee
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records, and service upon parties so certified shall be sufficient. All parties to the
proceeding before the agency shall have the right to intervene in the proceeding for
review. The court may in its discretion permit other interested persons to intervene.
[Emphasis added]
The Complaint, Amended Complaint, Second Amended Complaint, the Decision of the
State Board appended to the Complaint,the Administrative Record, and the Affidavit of Pamela
Stavis all reflect that Pamela Stavis was the original applicant to the State Board. G.L. c.30A
§14(2)expressly provides that"[a]ll parties to the proceeding... shall have a right to intervene...."
It is clear that as the original applicant,Pamela Stavis may intervene as matter of right.
Accordingly, Pamela Stavis' Motion to Intervene should be allowed.
2. THE JUDGMENT ENTERED ON OCTOBER 27,2004 SHOULD BE VACATED.
Mass.R.Civ.P. Rule 60(b)provides:
(b)Mistake; Inadvertence; Excusable Neglect;Newly Discovered Evidence;Fraud,
etc. On motion and upon such terms as are just,the court may relieve a party or his
legal representative from a final judgment, order,or proceeding for the following
reasons: (1)mistake, inadvertence, surprise,or excusable neglect; (2)newly
discovered evidence which by due diligence could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud(whether heretofore denominated
intrinsic or extrinsic),misrepresentation, or other misconduct of an adverse party; (4)
the judgment is void; (5)the judgment has been satisfied,released,or discharged,or
a prior judgment upon which it is based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should have prospective application; or(6)
any other reason justifying relief from the operation of the judgment.The motion
shall be made within a reasonable time, and for reasons (1), (2), and(3)not more
than one year after the judgment,order or proceeding was entered or taken. A motion
under this subdivision(b)does not affect the finality of a judgment or suspend its
operation. This rule does not limit the power of a court to entertain an independent
action to relieve a party from a judgment, order,or proceeding, or to set aside a
judgment for fraud upon the court.Writs of review, of error,of audita querela, and
petitions to vacate judgment are abolished,and the procedure for obtaining any relief
from a judgment shall be by motion as prescribed in these rules or by an independent
action.
The plaintiffs were required to serve Pamela Stavis and the City of Salem Building
Commissioner with the original complaint in the manner provided for service of process according
to the Rules of Civil Procedure. G.L. c. 30A §14(2) No such service was made. [See Plaintiffs'
,,,,mor Return of Service and Affidavits of Pamela Stavis and Thomas St. Pierre]
rkd D.Good n
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Mass.R.Civ.P. Rules 4 and 5 govern service of process. Rule 4(c)provides in pertinent
part: "Except as otherwise permitted by paragraph(h)of this rule, service of all process shall be
made by a sheriff,by his deputy, or by a special sheriff;by any other person duly authorized by law;
by some person specially appointed by the court for that purpose...." Service by certified mail is
only permitted on the governmental entities and then only in compliance with the requirements of
Rule 4(d) subparts(4), (5), and(6). The only return of service filed by the plaintiffs reflects service
by certified mail on the State Board. The return of service does not certify that service on the State
Board also included the service on the Attorney General of the Commonwealth of a brief statement
indicating the order questioned as provided in Rule 4(d)(6). No service was made on the City of
Salem which was a party to the original proceedings at the State Board. Most egregiously,no
service was made on the original applicant whose health and personal safety precipitated the
installation of the chair lift from which all these proceedings have emanated.
Pamela Stavis received notice of the judgment in this action at the end of January 2005 and
promptly filed the within motion. [Affidavit of Pamela Stavis,p.2 In 1-5] As such,she has acted
within a reasonable time.
Pamela Stavis has a meritorious defense as the judgment is clearly based upon
misinformation furnished to the Court. The original appeal to the State Board was timely. 780
CMR 122.1 provides in pertinent part:
In the event an appeal is taken directly to the State Building Code Appeals Board
from an interpretation,order,requirement or direction, said appeal shall be filed as
specified in 780 CMR 122.3.1 with the State Building Code Appeals Board not later
than 45 days after the service of notice thereof of the interpretation,order,
requirement or direction. [Emphasis added]
The time for appeal to the State Board runs from"service of notice"of the interpretation,
order, requirement or direction.
The letter from the Building Commissioner notifying Mr. and Mrs. Stavis of the Acting
Building Commissioner's changed interpretation was not served,but rather it was mailed by first
class mail and set no specific date for compliance.
780 CMR 118.2 provides:
118.2 Notice of violation The building official shall serve a notice of
violation or order on the person responsible for the erection,construction,
alteration, extension,repair,removal,demolition or occupancy of a building or
Lsw off.of structure in violation of the provisions of 780 CMR, or in violation of a detail
MA
L vy L MA
01902
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statement or a plan approved thereunder, or in violation of a permit or certificate
issued under the provisions of 780 CMR. Such order shall be in writing and shall
direct the discontinuance of the illegal action or condition and the abatement of the
violation. [Emphasis added]
780 CMR 118.2 requires that service of notice of violation or order.
The specific methods of service of order of the Building Commissioner are set forth in 780
CMR 118.6 that provides:
Notice or orders, service and content
Every notice or order authorized by 780 CMR shall be in writing and shall be served
on the person responsible:
1.personally,by any person authorized by the building official; or
2.by any person authorized to serve civil process by leaving a copy of the order or
notice at the responsible party's last and usual place of abode; or
3.by sending the party responsible a copy of the order by registered or certified
mail return receipt requested, if he is within the Commonwealth; or
4. if the responsible party's last and usual place of abode is unknown,by posting a
copy of this order or notice in a conspicuous place on or about the premises in
violation and by publishing it for at least three out of five consecutive days in one or
more newspapers of general circulation wherein the building or premises affected is
situated.
780 CMR 118.6 mandates personal service, sheriff or constable service,certified or
registered mail,or posting if the responsible party's last and usual place of abode is unknown. First
class mail is not service for purposes within the meaning of 780 CMR 118.
As the underlying letter was not served, the time for claiming an appeal did not begin to run.
and the Board had authority to act at anytime. As the judgment was based upon a mistake of fact,
it should be vacated.
Certainly the judgment should also be vacated on the basis of Pamela Stavis' excusable
neglect in not defending an action for which she was not served notwithstanding mandatory
requirements for service. The failure to serve known interested parties also justifies vacating the
judgment on the basis that the plaintiffs perpetrated a fraud on the Court by intentionally depriving
a known interested party of her day in court [see,Altshuler v. Minkus-Whalen,31 Mass.App.Ct.
937 (1991)]. Finally,the judgment should bdvacated pursuant to subpart(6) for other excusable
neglect as it is manifest that Pamela Stavis had a right to participate in this action,that she was not
served according to law, and that she has a meritorious defense.
Lew Oece of
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For any and all of the foregoing reasons, the judgment should be vacated.
3. THE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE
A. LACK OF SERVICE
Mass.R.Civ.P. Rule 46)requires service of process within ninety days of the filing of the
complaint. It is clear that service was not made on the originals parties to the State Board action
and that more than ninety days have elapsed since the filing of the complaint and filing of both
amended complaints.
In applying Mass.R.Civ.P. 40), Massachusetts courts have been guided by judicial
interpretation of the parallel Federal rule because it"is nearly identical to its Massachusetts
counterpart." Shuman v. The Stanley Works, 30 Mass.App.Ct. 951, 952 (1991). The motion is
addressed to the discretion of the trial judge who may either allow the motion,thereby dismissing
the action without prejudice,or simply quash service of process and order new service." Siodis v.
Spate, 1999 Mass. App. Div. 148, 149 (Mass. App. Div. N. Dist. 1999). See Stevens v. Bradlees,
Inc., 1995 Mass. App. Div. 9, 11 (Mass. App. Div. N. Distr. 1995). See also G.L. c. 223 § 84.
Notably, "[t]he burden is on the plaintiff to show `good cause' why service was not made within the
time period required by the rule."Shuman, 30 Mass.App.Ct. 951, 953 citing Winters v. Teledyne
Movible Offshore, Inc., 776 F.2d 1304, 1305 (5th Cir. 1985),Rivera v. Nissan Mfg. Co., 788 F.2d
819, 821 n. 2 (1st Cir. 1986).
"'Good cause' has been defined as `a stringent standard requiring diligen[t]' albeit
unsuccessful effort to complete service within the period prescribed by the rule." Shuman, 30
Mass.App.Ct. 951, 953 citing Davis-Wilson v. Hilton Hotels Corp., 106 F.R.D. 505, 509 (E.D. La.
1985). "No longer is dismissal of a Complaint allowed only upon a showing of prejudice to the
defendant; an unfair tactical advantage to the plaintiff; or harassment of the defendant." Lawrence
v. Emma, 1997 Mass. Super. LEXIS 190, 7 (Mass. Superior Ct. 1997). "Me focus of the court's
inquiry is the reasonableness and diligence of counsel's effort to effect service within the time
required." Shuman, 30 Mass.App.Ct. 951,953 citing Quann v. Whitegate-Edqewater, 112 F.R.D.
649, 659 (D.Md. 1986). In cases of a delay in service,"[t]he weight given it depends upon how
reasonable the delay is in the context of the over-all circumstances and,in particular,the
Lew off.or reasonableness and diligence of the plaintiffs efforts to effect service in a timely manner."
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Commissioner of Revenue v. Carrigan,45 Mass.App.Ct. 309 (1998). "In cases where a[c]omplaint
has been dismissed pursuant to Mass. R. Civ. P. 46),there has been a blatant lack of reasonableness
and diligence regarding counsel's effort to effect service within the time required."Lawrence v.
Emma, 1997 Mass. Super at 8. See Shuman, 30 Mass.App.Ct. 951 (defendant was finally served 6
months after complaint was filed);Hull v. Attleboro Savings Bank, 33 Mass.App.Ct. 18
(1992) (defendant was finally served more than three years after complaint was filed);Kubik v.
Streule, 197 Mass. App. Div. 176 (Mass. App. Div.N. Distr. 1997) (defendant was finally served
128 days after complaint was filed).
While the plaintiff must show good cause,"'[g]ood cause' may[also] arise from the
defendant's conduct... `Good cause' has been found where a defendant, although not properly
served,participated in the case and waited until after the expiration of the statute of limitations to
file a motion to dismiss under Rule 40)... The court therein reasoned that by delaying his motion,
the defendant may have misled the plaintiff into thinking he would not pursue a defense under Rule
40)."Stevens v. Bradlees, Inc., 1995 Mass. App. Div. 9, 11 (Mass. App. Div.N. Distr. 1995). Good
cause has also been found where a defendant"was in large measure responsible for the very
insufficiency of service [they] now claim as a basis for dismissal"and where"[t]he plaintiff acted
reasonably and in apparent good faith in relying on"the representations of a defendant.Siodis, 1999
Mass. App. Div. 148, 149.
None of these factors is present here. Rather,the plaintiffs, one of whom is an attorney and
both of whom are represented by counsel, disregarded the clear statutory requirements for service.
Further,the plaintiffs themselves demanded that the underlying State Board decision be vacated due
to an alleged issue of timeliness. It is not unreasonable to expect them to cut their corners squarely.
B. THE PLAINTIFFS LACK STANDING TO BRING THIS ACTION.
780 CMR 122.6 provides: Appeals from State Building Code Appeals Board
Any person aggrieved by a decision of the State Building Code Appeals Board may
appeal to a court of law or equity in conformance with M.G.L. c. 30A, § 14.
In Ginther v. Commissioner of Ins., 427 Mass. 319 (1998),the Court addressed the issue of
standing to claim an appeal pursuant G.L. c. 175, § 206D(f)(1). Comparable language to that
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contained in G.L. c.30A is contained in G.L. c. 175, § 206D(f)(1)that provides in part: "Any person
aggrieved by any act,determination,rule, regulation,or order or any other action of the
commissioner pursuant to sections two hundred and six to two hundred and six D,inclusive,may
appeal therefrom to the superior court department of the trial court for Suffolk county." To qualify
as a'person aggrieved,'a person must allege substantial injury as the direct result of the action
complained of. Alleging injury alone is not enough; a plaintiff must allege a breach of duty owed to
it by the public defendant. Ginther v. Commissioner of Ins.,427 Mass. 319, 322-323 (1998). Mere
participation in the administrative process does not confer standing to raise a claim in the Superior
Court. Ginther, at p.324.
In Circle Lounge&Grille v. Board of Appeal of Boston, 324 Mass. 427,429(1949), the
Court addressing the issue of standing in the context of an appeal under G.L. c.40A that permits
appeals by"'Any person aggrieved by a decision of the board of appeal"said: "But even if some
harm might be done to the plaintiff in the ways suggested,there is a more fundamental and more
comprehensive reason why we think the plaintiff is not a person aggrieved within the meaning of
the statute. Commonly a person aggrieved is one whose legal rights have been infringed." [citations
omitted].
The Supreme Judicial Court held in Berish v. Bornstein,437 Mass. 252, 263 (2002)that
"[i]n keeping with this division of property ownership, condominium unit owners cede the
management and control of the common areas to the organization of unit owners,which is the only
party that may bring litigation relating to the common areas of the condominium development on
their behalf. G.L. c. 183A, § 10(b) (4). See Strauss v. Oyster River Condominium Trust,417 Mass.
442,445,631 N.E.2d 979 (1994) ( "Only the trustees have the right to conduct litigation concerning
'common areas and facilities")."
The plaintiffs are owners/occupants of two condominium units of the same building in
which the plaintiffs condominium unit is locdted. The subject chair lift was installed in a common
egress stairway. [Complaint,$11-6, Stavis Affidavit,p.l In 2-4.] The stairway is part of the
Common Areas and Facilities. [See extract from the Master Deed of the Weatherly Drive
D. Condominium, §513 (p.4),Appendix, Exhibit"A."]
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I • •
The plaintiffs have alleged only that the"Decisions of the Appeals Board interfere with the
full and fair use of the common egress stairways as well as undermines the safety and health of the
Plaintiffs." [Second Amended Complaint,123.]
Plaintiffs have not alleged a substantial injury as the direct result of the action complained
of. All litigation involving the common areas is reserved to the Trustees of the condominium
association. Any claimed injury to the plaintiffs is speculative,remote and insubstantial.
Accordingly,the Complaint should be dismissed pursuant to Mass.R.Civ.P. Rules 12(b)(1)
or Mass.R.Civ.P. Rules 12(b)(6).
PAMELA ST IS
By o e
CARL D. OODMAN
152 Lynnway- Suite 1 E
Seaport Landing
Lynn,MA 01902
Tel: (781) 593-2016
BBO#201720
L�ofa or
Cul O.Goodin
152 Ly..m
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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS: SUPERIOR COURT DEPT.
OF THE TRIAL COURT
Civil Action#ESCV2003-00808
IRVING GORDON and
HAROLD MACK
PLAINTIFFS
-v-
COMMONWEALTH OF MASSACHUSETTS
STATE BUILDING CODE APPEALS BOARD
DEFENDANT
AFFIDAVIT OF PAMELA STAVIS IN SUPPORT OF MOTION
TO INTERVENE,VACATE JUDGMENT AND DISMISS
I, Pamela Stavis, on oath and affirmation depose and say:
i I reside at 69 Weatherly Drive, Salem, Massachusetts where I have resided with my husband
2 since the summer of 2002. I suffer from Muscular Dystrophy. Due to my illness, as a
3 condition of purchasing our residence which is a condominium, we obtained consent from the
4 condominium developer for the installation of an automatic chairlift in a common stairway.
s Initially we were informed by the condominium developer's representative that she had been
6 informed by the City of Salem Building Department that the State Building Code permitted the
7 installation. Subsequently,and after the installation of the chairlift,we were informed that the
a earlier determination was incorrect and that the chairlift needed to be removed. My husband
9 and I were subsequently informed by representatives of a state agency dealing with disability
10 issues that we could apply for a variance from the State Building Code Appeals Board for the
ii chairlift. I filed an Appeal Application Form with the State Building Code Appeals Board, a
12 copy of which is included in the Administrative Record of the proceedings of the State Building
13 Code Appeals Board which Administrative Record has been filed in these proceedings.
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1 I was never served with a summons, complaint or any other papers relating to this action and
2 only became aware of this action when I received a telephone call from the City of Salem
3 Building Inspector at the end of January 2005 and a day or two later on January 29, 2005
4 received from him a copy of correspondence addressed to him from Attorney Stuart A Holber,
5 along with a copy of the Judgment entered in this action.
6 Had I been aware of this action,I would have engaged counsel to represent me as my
7 personal safety and welfare require the availability and use of the automatic chairlift.
s The foregoing statement is made upon personal knowledge except as to matters set forth as
9 being based upon information and belief and as to such matters I believe the same to be true.
10
11 Sworn to this day of February 2005.
12
13 gt�
14Z-�I�a-.�
15 Pamela Stavis
CadD.
0004M
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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS: SUPERIOR COURT DEPT.
OF THE TRIAL COURT
Civil Action#ESCV2003-00808
IRVING GORDON and
HAROLD MACK
PLAINTIFFS
-v-
COMMONWEALTH OF MASSACHUSETTS
STATE BUILDING CODE APPEALS BOARD
DEFENDANT
AFFIDAVIT OF THOMAS ST. PIERRE
I,Thomas St. Pierre, on oath and affirmation depose and say:
i I am the duly appointed Building Commissioner of the City of Salem,Massachusetts. In
2 the fall and winter of 2002,I was the Acting Building Commissioner of the City of Salem. In
3 my capacity as Acting Building Commissioner, I wrote a letter to Robert&Pamela Stavis, a
n copy of which letter is attached hereto as Exhibit"A." The letter is undated and the records of
s the Office of the Building Commissioner do not reflect the date of mailing. The purpose of my
6 letter was to advise Mr. and Mrs. Stavis that I had erred in previously indicating that a chair lift
7 in a common stairway in their condominium building complied with the State Building Code
s and to inform them that the lift that had been installed subsequent to my prior opinion would
9 have to be removed. I did not specify a specific time frame for the removal of the lift nor did I
10 order its removal. The letter was mailed first class mail. I did not cause the letter to be served
11 in accordance with 780 CMR 118.6.
12 In or around May of 2003 my office received a letter dated May 6,2003 from Attorney
13 Stuart M.Holber by which he forwarded a Complaint. A copy of that cover letter is attached
LA�offaryf hereto as Exhibit`B." The May 6,2003 correspondence was the only information that my
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1 office received relative to the Superior Court appeal until I received a letter dated December 30,
2 2004 from Attorney Holber informing me that a judgment had entered vacating the State
3 Building Code Appeals Board variance and that the appeal period had expired. At no time was
4 my office served with a complaint or summons in connection with the Superior Court appeal.
s The foregoing statement is made upon personal knowledge except as to matters set forth as
6 being based upon information and belief and as to such matters I believe the same to be true.
e Sworn to this l�O�'day of February 2005.
9
1
111
U
12 THOMAS S . PIERRE
Im Offmof
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CITY OF SALEM9 MASSACHUSETTS
PUBLIC PROPERTY DEPARTMENT
n 120 WASHINGTON STREET, 3RD FLOO EXHIBIT /A
1' ro SALEM, MAO 1970
TEL. (978)745-9595 EXT. 380
FAX (978) 740-9846
STANLEY J. USOVICZ, JR.
MAYOR
Robert&Pamela Stavis
69 Weatherly Drive Copy
Salem, Ma. 01970
Dear Owners:
This department has received complaints from two tenants In your�lding about the
chairlift that is mounted in the stairway. Jill, from American Properties, contacted me
several months ago and asked me if the installation of the stairlift would be allowed.
At that time,I checked the Mass State Building Code and found an exception in use
group R-3 that would allow installation of a chair lift.
I relayed this information to Jill who relayed it to you.
However, looking into the use group classification further, I have discovered that the
buildings in your development are use group R-2. The R-2 use group would not allow
the installation of the chair lift.
At this time,I must inform you that the chairlift is a code violation.
The lift needs to be removed as early as possible.
I apologize for the incontinence that I have caused you.
If further information is needed or you wish to discuss this matter,please contact me
directly.
Sincerely,
Thomas St. Pierre
Acting Building Commissioner
cc: Mayors Office
Tom Phillbin
John Keenan
Jill, American Properties
Herbert P. Phillips,F.C. EXHIBIT
Michael A.Gerstein LAW OFFICES OF
Stuart M.Holber
�C Gian
Russell A Cnnen (PW,GPIStein,11VArf M LLP
Lynne Lora M.MCSherry .
25 Kenoza Avenue■ Haverhill, MA 01830
01 Counsel: Tel: (978)374-11311(800)457-6912 ■ Fax: (978) 372.3086
Gerald M.Lewis wwwcpghdawcom
Harold N.Mack
Jane M.Owens Triano
May 6, 2003
Thomas St. Pierre
Acting Building Commissioner
------------City-of Salem--- --- ---- — --- — -- — -----
120 Washington Street, 3rd Floor
Salem,MA 01970
Re: Irving Gordon, et al.v. Commonwealth of Massachusetts
State Building Code Appeals Board
C.A. No. 30808
Dear Mr. St. Pierre:
Enclosed herewith is a copy of Complaint to Vacate Decision of State Building Code
Appeals Board filed in Essex Superior Court, Salem.
Very truly yours,
Stuart M. Holber
SMWdkb
Enclosure
cc: Pamela Stavis
All attorneys admitted in Massachusetts.
Holber and Saban admitted also in New Hampshire.
Holber admitted also in Maine.
Other office:32 Saw Avenue, P.O.Box W,Old Orchard,ME 04064 MPly to HaNrhlll office only
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS: SUPERIOR COURT DEPT.
OF THE TRIAL COURT
Civil Action#ESCV2003-00808
IRVING GORDON and
HAROLD MACK
PLAINTIFFS
_v_
COMMONWEALTH OF MASSACHUSETTS
STATE BUILDING CODE APPEALS BOARD
DEFENDANT
REQUEST FOR EXPEDITED HEARING ON MOTION OF PAMELA STAVIS
TO INTERVENE,VACATE JUDGMENT&DISMISS COMPLAINT
Pursuant to Superior Court Rule 9A(c)(2),Pamela Stavis,by her undersigned attorney,
respectfully requests that the Court schedule her Motion to Intervene,Vacate Judgment&Dismiss
Complaint for hearing and that the same be scheduled on an expedited basis.
As grounds therefore, Pamela Stavis says that plaintiffs' counsel has forwarded a copy of the
judgment in this action to the City of Salem Building Inspector requesting enforcement of the
judgment and the Building Inspector has forwarded correspondence to Pamela Stavis notifying her
of the judgment. If the within motion is not heard on an expedited basis, additional litigation may
be necessary in order to maintain the status quo pending the Court's ruling on the motion.
PAMELA ST
By h o
Dated: February 16,2005
CARL D. ODMAN
152 Lynnway- Suite IE
Seaport Landing
Lynn,MA 01902
Tel: (781) 593-2016; (781)639-8100
BBO#201720
law OfHmof
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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS: SUPERIOR COURT DEPT.
OF THE TRIAL COURT
Civil Action#ESCV2003-00808
IRVING GORDON and
HAROLD MACK
PLAINTIFFS
-v- CERTIFICATE OF SERVICE
COMMONWEALTH OF MASSACHUSETTS
STATE BUILDING CODE APPEALS BOARD
DEFENDANT
I certify that a true copy of
1. MOTION OF PAMELA STAVIS TO INTERVENE,VACATE JUDGMENT&DISMISS
COMPLAINT CERTIFICATE OF SERVICE
2. MEMORANDUM OF LAW IN SUPPORT OF MOTION OF PAMELA STAVIS TO
INTERVENE,VACATE JUDGMENT&DISMISS COMPLAINT
3. AFFIDAVIT OF PAMELA STAVIS
4. AFFIDAVIT OF THOMAS ST. PIERRE
5. REQUEST FOR EXPEDITED HEARING
were served by mailing first class mail,postage prepaid,this day to the following:
Assistant Attorney General Annapurna Balakrishna
One Ashburton Place—Room 2019
Boston,MA 02108
Harold M. Mack, Esq.
25 Kenoza Avenue
Haverhill,MA 01830
Stuart M. Holber,Esq
Phillips,Gerstein,Holber&Channen, LLP
25 Kenoza Avenue
Haverhill,MA 01830
L,ofreor
Cm1 D.0004=
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4
Mr. Thomas St. Pierre
Building Commissioner .
City of Salem
Public Property Department
120 Washington Street
Salem,MA 01970
Dated: February 16, 2005
CARL D. GOODMAN
Attorney for Pamela Stauis
152 Lynnway- Suite I
Seaport Landing
Lynn, MA 01902
Tel: (781) 593-2016; (781) 639-8100
BBO#201720
k
Lew Office of
Cal D.Ooodo
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MC- C� w,.�EaMWEFROM xxsPCnOMSUMER0011r,Fn7
I
APPENDIX I
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COMMONWEALTH OF MASSACHUSETTS a 016H26501777 _
COMMISSION AGAINST DISCRIMINATION 00.59_
1 ASHBURTON PLACE - ROOM 601 y O ,
BOSTON, MA 02108 r Y 07/2912008 .
Mailed From 02106
US POSTAGE
1
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The Commonwealth of Massachusetts
Commission Against Discrimination
One Ashburton Place , Boston, MA 02108
Phone: (617) 994-6000 Fax: (617) 994-6024
7/29/2008
Sent b fes,regular mail and certified mail
Thomas J. St.Pierre,Director
City of Salem Inspectional Services
120 Washington St
3rd 11
Salem,MA 01970
RE:Pamela Stavis vs. City of Salem,City of Salem,
Building Department,Thomas J. St. Pierre, Director
MCAD Docket Number: 08BPR02077
HUD Number:01-08-0465-8
f
Dear Mr. St. Pierre:
The Massachusetts Commission Against Discrimination(MCAD)has received the above complaint of
discrimination which alleges that you have committed an act of discrimination against the complainant. A
copy of that complaint is enclosed.
State law requires the Commission to impartially review the allegations in that complaint. The Commission
has assigned one of its staff, Marcia Shannon,to investigate the complaint. This MCAD investigator will
keep the parties informed of the course of the investigation.
State law requires that you submit a formal written answer to the complaint,called a Position Statement
This Position Statement must be submitted within twenty-one(21)days of receipt of this notification The
Position Statement must be signed under the pains and penalties of perjury. A copy must also be
forwarded to the Complainant at the address listed on the enclosed complaint. Failure to file a Position
Statement or other response within the prescribed time may result in sanctions being imposed in accordance
with 804 CMR 1.16.
In order to thoroughly investigate complaints of discrimination, the MCAD schedules an Investigative
Interview with necessary parties shortly after the complaint is filed
An Investigative Interview regarding the above complaint will be held at the
Commission's Offices, One Ashburton Place, Boston, MA, at 10 AM on Monday,
August 4, 2008. You are required to attend this Interview.
If you have any questions pe ainin to the Investigative Conference,please contact Marcia Shannon at(617)
994-6096.
Zr'
arci Shannon
Investigator
MCAD Docket Number 08BPR02077,Serve Respondent—With Investigative Conference
The Commonwealth of Massachusetts
Commission Against Discrimination
One Ashburton Place , Boston, MA 02108
Phone: (617) 994-6000 Fax: (617) 994-6024
MCAD DOCKET NUMBER: 08BPR02077 EEOC/HUD CHARGE NUMBER: 01-08-0465-8
FILING DATE: 07/17/08 VIOLATION DATE: 07/15/08
------ -------------------------------------------------------------------------------------------------------------------------------
Name of Aggrieved Person or Organization
Pamela Stavis
c/o Marielise Kelly,Gargiulo/Rudnick LLP,766 Falmouth Rd. Unit A-6,Mashpee,MA 02649
-------------- -------- ------------- --------- -----------------------
Named is the employer, labor organization employment agency,or state/local government agency who discriminated
against me:
City of Salem
Ann to: Elizabeth Rennard, City Solicitor
93 Washington St.
Salem,MA 01970
Primary Phone: (978)745-9595 ext. 5614
City of Salem,Building Department
Attn to: Elizabeth Rennard-City Solicitor
93 Washington St
Salem, MAO 1970
Primary Phone: (978)745-9595 ext.
Thomas J. St. Pierre,Director
City of Salem Inspectional Services
120 Washington St
3rd fl
Salem,MA 01970
Primary Phone: (978)745-9595 ext. 5641
--- ---- ----- ---------------------------------------------
Cause of Discrimination based on.-
Disability,
n:Disability, Uses wheelchair.
----- -----------------------------------------------------------------------
The particulars are:
I,Pamela Stavis,the Complainant believe that I was discriminated against by City of Salem,City of Salem,Building
Department,Thomas J. St. Pierre,Director,on the basis of Disability.This is in violation of M.G.L. 151B Section 4
Paragraph 6, 7A,4A and Title VIII.
Complaint filed through Complainant's attorney.
Complainant alleges that she is a disabled person under the definition of MGL and she needs the use of a
wheelchair for her mobility.
Complainant alleges that she sought and obtained permission from the Condominium association to install a wheelchair lift
in the condominium she bought.
After the chairlift was installed,the Salem City Inspector determined that there was a technical violation of the State
Building Code causing him to revoke his permission.
The Complainant petitioned for a variance and the State Building Code Appeals Board granted the relief.
The Complainant requested an accommodation from the City of Salem to permit the continued presence of the wheelchair
lift. The City of Salem,through its City Solicitor, engaged in settlement discussions but failed to consummate any .
settlement. The City of Salem applied for a criminal complaint in Salem District Court relating to the removal of the
chairlift and it is currently scheduled for August 6, 2008.
Complainant alleges that the alleged discrimination is on going,she was denied a reasonable accommodation and
she has been intimidated/threatened by filing criminal charges against her for failure to remove the chairlift.
Se enclosed complaint as filed.
----------------- -------------- ----------------------------------------------------------------
I hereby verify,under the pains and penalties of perjury, that I have read this complaint and the allegations contained herein
are true to the best of my knowledge.
MCAD Docket Number 08BPR02077,Complaint
COMMONWEALTH OF MASSACHUSETTS
COMMISSION AGAINST DISTRIMINATION
Docket#:
PAMELA STAVIS , �3141616
Complainant q �a
Receivpri
v. a PJUL 2008 N
d fbmmissior :'
THE CITY OF SALEM, MASSACHUSETTS �taf Dlscrimlo,I
Defendant \�pf6Z8ZLZ9Zy
s
VERIFIED COMPLAINT FOR HANDICAP DISCRIMINATION
IN HOUSING IN VIOLATION OF M.G.L.C. 151B
Introduction
The Defendant City of Salem, has and continues to, engage in a pattern of handicap
discrimination against Pamela Stavis in violation of M.G.L.c. 151B relating to a wheelchair lift
that is used by Pamela Stavis due to the fact that she suffers from a degenerative and disabling
condition, Muscular Dystrophy, which severely impairs her ability to ambulate. The City of
Salem, through its building inspector and others, has:
• granted and then purported to revoke permission to install a wheelchair lift at the
Plaintiff's Condominium after the unit was installed;
• has refused to grant permits to allow a wheelchair lift to remain at the residence;
• has engaged in a pattern of harassment against Pamela Stavis including seeking an
application for criminal complaint against Robert Stavis as a result of the presence of
the wheelchair lift which application is to be heard on August 6,2008 in Salem
District Court; and
• has failed to respond to the Stavises demands to cease and desist the conduct in
violation of M.G.L.c. 151B
Parties
1. The Plaintiff, Pamela Stavis, is a handicapped person who resides at at their
condominium at the Weatherly Drive Condominiums located at 69 Weatherly Drive,
Salem Massachusetts.
P WAVIS,ROBERT MCADUB,K MCAD Complaint 08070odoo
2. The Defendant City of Salem is a political subdivision of the Commonwealth of
Massachusetts.
Facts
3. Pamela Stavis is a handicapped person within the meaning of M.G.L.c. 151 B as she
suffers from Muscular Dystrophy, a degenerative condition, that severely inhibits her
ability to ambulate.
4. The City of Salem is subject to litigation for handicap discrimination under M.G.L.c. 151
B. See M.G.L.c. 15113 § (defining "person" subject to liability for handicap
discrimination to include all political subdivisions of the Commonwealth).
5. The Stavises sought (and obtained) permission from their Condominium Association
prior to purchase of the condominium unit to install a wheelchair lift at the Whetherly
Drive Condominium for the benefit of Pamela Stavis.
6. The Stavises sought(and obtained) approval from the City of Salem Building Inspector
prior to purchasing the condominium unit and/or the wheelchair unit.
7. At the Stavises own expense, and in reliance on the representations of the Condominium
Association and the City of Salem wheelchair lift was installed.
8. After the chairlift unit was installed, the Building Inspector determined that there was a
technical violation of the State Building Code causing him to revoke his permission.
9. The Stavises, acting pro se, petitioned for variance before the State Building Code
Appeals Board. The State Building Code Appeals Board granted the Stavises relief.
10. The Building Code Appeals Board decision was later overturned by the Massachusetts
Appeals Court on a procedural issue-of whether the Stavises pro se appeal was timely
commenced.
11. The issue of handicap discrimination has never been addressed by the MCAD.
12. The appeal to the State Building Code Appeals Board did not address the issue of
handicap discrimination in violation of M.G.L.c. 151B, nor does the Board have
jurisdiction to adjudicate issues of handicap discrimination.
13. The appeals from the State Building Code Appeals Board to the Essex Superior Court
and the Massachusetts Appeals Court also did not address the issue of handicap
discrimination under M.G.Lc. 151B, nor could they have addressed that issue.
14. The issue of whether M.G.L.c. 151B requires that the chairlift be permitted by the Town
has never been adjudicated in any forum.
2
15. Pamela Stavis has requested an accommodation from the City of Salem under M.G.L.c.
151 to permit the continued presence of the wheelchair lift and Pamela Stavis full
enjoyment of her residential premises.
16. The City of Salem, through its City Solicitor, has engaged in settlement discussions but
has failed and refuse to consummate any settlement agreement with the Stavises.
17. The City of Salem has (re)scheduled an application for criminal complaint in the Salem
District Court relating to removal of the chairlift on August 6, 2008.
Count
(Handicap Discrimination v. City of Salem)
18. The Claimant Pamela Stavis repeats and re-alleges the averments of Paragraphs 1-17 as
if fully set forth herein.
19. Handicap discrimination is prohibited in virtually all public and private housing settings,
including condominiums, such as the one at issue. See e.g. M.G.L.c. 151B §1 (9)
(defining regulated "housing" and "housing accommodations"); 10(b) (defining regulated
housing to include housing in multiple dwelling financed or insured by federal
government); §1 (10) c (defining regulated housing to include housing contiguous to
public streets); 151B §1 (11) (regulating "multiple dwellings"). In addition to those
specifically enumerated housing arrangements covered by M.G.L.c. 15113, there is a
"catch-all"provision in 151B §1 (13) which makes M.G.L.c. 151B applicable to "all
housing accommodations not specifically covered under subsections 10, 11 and 12 which
are directly or though an agent made generally available to the public for sale or lease or
rental . . " M.G.L. 151B §1 (13.).
20. The Weatherly Drive Condominiums are regulated by those provisions of the statute
which prohibit handicap discrimination.
21. Unlawful housing practices are enumerated in M.G.L.c. 151B §4A. In pertinent part,
under M.G.L.c. 151 B §6 it is unlawful " . . . .to withhold from any person or group or
persons such accommodations . . . .because such person is blind, or hearing impaired, or
has any other handicap or(b) to discriminate against any person . . . because such person
is blind, or hearing impaired, or has any other handicap, in the terms conditions or
privileges of such accommodations or the acquisitions thereof, or in the furnishing of
facilities and services in connection therewith . . ." M.G.L.c. 151B §6. For the purposes
of this subsection, discrimination on the basis of a handicap includes, but is not limited to
" . . . a failure to design and construct such dwellings in a manner that (i)the public use
and common use portions of such dwellings are readily accessible and usable by
handicapped persons" 151B 4 (6) (i). Additionally, "all premises within such dwellings
must contain the following features of adaptive design: (a) an accessible route into and
through the dwelling . . . ." 151B sec. 6 (iii) (a).
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22. .. . . . [Discrimination on the basis of a handicap shall include, but not be limited to: (1) a
refusal to permit or make, at the expense of the handicapped person, reasonable
modification of existing premises occupied or to be occupied by such person if such
modification is necessary to afford such person the full enjoyment of such premises .
. . . "M.G.L.c. 151B §7A (1) (emphasis added).
23. The statute states that handicap discrimination shall include a"refusal to make
reasonable accommodations in rules, policies, practices or services which such
modifications may be necessary to afford a handicapped person equal opportunity
to use and enjoy a dwelling." M.G.L.c. 151B §7A (2) (emphasis added).
24. M.G.L.c. 151 B provides that"reasonable accommodation shall include, but not be
limited to, making the housing accessible to mobility-impaired . . .persons." M.G.L.c.
151B §7A (3). This provision of the statute references "installing a wheelchair lift"as a
reasonable accommodation, but states that the owner of the premises shall not be required
to pay for the installation of a wheelchair lift. M.G.L.c. 151B §7A (3).
25. Accommodations are not"reasonable" in the event"it would impose an undue hardship
upon the owner or other person having the right of occupancy . . .." M.G.L.c. 151 B §7A
(3)
26. Pamela Stavis' wheelchair lift constitutes a reasonable accommodation that is necessary
for Mrs. Stavis to have the full enjoyment of her residential premises. Moreover, it is
essential to ensure her ability to safely egress the building particularly in the event of an
emergency.
27. There is no "undue hardship" imposed on The City of Salem or any person as a result of
the existence and/or use of the wheelchair lift.
Count II
('Threats and Coercion v. City of Salem)
28. The Plaintiff Pamela Stavis repeats and re-alleges paragraphs 1-27 as if fully set forth
herein.
29. M.G.L.c. 151 B provides it shall be an unlawful practice "For any person to coerce,
intimidate, threaten, or interfere with another person in the exercise or enjoyment of any
right granted or protected under this chapter . . . " M.G.L..c 151 B §4A.
30. The City of Salem's application for criminal complaint against Mr. Stavis flowing from
his failure to remove the wheelchair lift constitutes intimidating and coercive conduct by
the City of Salem against Pamela Stavis which is prohibited by this provision of the anti-
discrimination statute.
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31. The on-going and continuous pattern of discrimination against the Stavises by the City of
Salem in failing to issue a permit to allow the wheelchair lift to remain on the premises
and in bringing an application for criminal complaint against the Stavises for an alleged
violation of the Massachusetts State Building Code.
32. Pamela Stavis has suffered, and continues to suffer damages as a result of the on-going
pattern of discriminatory conduct by the City of Salem.
Count III
(Emotional Distress v. City of Salem)
33. The Plaintiff Pamela Stavis repeats and re-alleges paragraphs 1-32 as if fully set forth
herein.
34. The City of Salem's application for criminal complaint against Mr. Stavis flowing from
his failure to remove the wheelchair lift constitutes intimidating and coercive conduct by
the City of Salem against Pamela Stavis which is prohibited by this provision of the anti-
discrimination statute.
35. The on-going and continuous pattern of discrimination against the Stavises by the City of
Salem in failing to issue a permit to allow the wheelchair lift to remain on the premises
and in bringing an application for criminal complaint against the Stavises for an alleged
violation of the Massachusetts State Building Code.
36. Pamela Stavis has suffered, and continues to suffer emotional distress as a result of the
on-going pattern of discriminatory conduct by the City of Salem.
Prayers for Relief
Pamela Stavis respectfully requests that the MCAD should issue a restraining orders to
stop discriminatory conduct that violates M.G.L.c. 151B including:
1) A restraining order preventing the City of Salem from pursuing its application
for criminal complaint flowing from the chairlift;
2) an affirmative injunction requiring the City of Salem to permit the chairlift and
allow its presence.
3) Award the difference between the purchase price of the condominium in
reliance on The City of Salem Building Inspector's representation that a
wheelchair lift is permissible and its reduced sale price in current market
conditions;
4) the costs and attendant expenses of re-locating in the event the wheelchair lift
is not allowed to remain at the premises;
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5) severe emotional distress as a result of the acts and omissions of the City of
Salem;
6) attorneys fees and costs
7) All other damages available at law or in equity
Jury Trial Claim
Pamela Stavis claims her right to trial by jury, after exhaustion of administrative
remedies, to the fullest extent permitted by law.
Respectfully submitted,
Pamela Stavis
By her attorneys,
ar " e elly —
B.B. r #559595
Ed and R. Gargiulo
B.B.O. #185720
Gargiulo /Rudnick, LLP
766 Falmouth Road, Unite A-6
Mashpee, MA 02649
(508) 477-6400 (tel)
(508) 477-0455 (fax)
Dated: July 2008
VERIFICATION
I, Pamela Stavis,verify, under the pains and penalties of perjury, that the facts set forth in
this complaint are true and accurate to the best of my knowledge, information and belief.
Signed under the pains and penalties of perjury this/ da of July,2008
Pamela Stavis
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