12-011D birdcliff road planningGREEN, MILES, LIPTnN,.WHITE FITz- GIBBON
11TT(� 1�A7F.YS AT LAW
77 PLEASANT STREET
POST OFFICE BOX 210
NORTHAMPTON, MASSACHUSETTS 01061 -02310
(413) 586 - 8`'.18
FAX (413) 584- -6278
JOHN J. GREEN, H'.
HARPY L. MILES
ROGER P. LIPTON
GEOFFREY B. WHITE
JOAN I1. FI1'7.- GIBBON
April 10, 1997
SUSAN L. IHF:RZBERG
KATHLEEN N. FINAMORF.
BVIAN L. BIACKBURN
FOR HAND DELIVERY ON 4/10/97
TO: Planning Board
Office of Planning and Development
Northampton City Hall
210 Main Street
Northampton, MA 01060
RE: REQUEST FOR REHEARING OF SUBDIVISION MODIFICATION
Dear members of the Planning Board:
Enclosed for your information is a "Notice of Appeal" delivered today to the office of
the Northampton City Clerk. That notice includes copies of the Northampton
Planning Board's action, dated November 22, 1996, purporting to amend the
Brookwood Subdivision Plan by eliminating Birdcliff Road, and a copy of the court
complaint filed on this date in Hampshire Superior Court.
On behalf of my clients, Susan F. O'Neill and George A. Holland, I hereby request
that the planning board rescind its action, and rehear the application of Cynthia J.
Watson to amend the Brookwood Subdivision Plan by eliminating Birdcliff Road. The
basis for this request, as alleged in the enclosed court complaint, is that O'Neill and
Holland received no notice of the original hearing, and were prejudiced by being
thereby deprived of their right to attend and oppose the amendment.
By a copy of this letter, I am informing the applicant's attorney (Edward Etheredge,
Esq.) of this request.
Very truly yours,
Green, Miles, Lipton, White and Fitz - Gibbon, by
Susan L. Herzberg, Esq.
Enclosures (3)
Copy with enclosures: Edward Etheredge, Esq.
Clients
17 ,
1997
APR 1 0
April 10, 1997 FOR HAND DELIVERY ON 4/10/97
TO: City Clerk
Northampton City Hall
210 Main Street
Northampton, MA 01060
RE: NOTICE OF APPEAL OF SUBDIVISION MODIFICATION
Dear City Clerk:
Susan F. O'Neill and George A. Holland hereby give notice of their appeal of the
Northampton Planning Board's action, dated November 22, 1996, purporting to
amend the Brookwood Subdivision Plan by eliminating Birdcliff Road. A copy of the
subject "Notice of Subdivision Modification" is attached hereto and incorporated
herein by reference. Also attached hereto and incorporated herein by reference is a
copy of the court complaint filed on this date in Hampshire Superior Court.
Very truly yours,
Green, Miles, Lipton, White and Fitz - Gibbon, by
Susan L. Herzberg, Esq.
Pane 1
i
GREEN,
STILES,
LIPTON,:WHITE
car- F1TZ GIB1B0N :-
77 PLEASANT STRI ?1:'1'
POS'r OFF1c1: BOX
NOIt'I'ILIDIPI'ON, M��SS��(;III ?Sl:'1'1'S 01UG1 -U'�10
011:3) St3fi- t3'�lt�
FAX 0113) 584 - 6278
,1011N J. GREEN, JR.
SUSAN L. 11ERZBERG
1IARRY L. MILES
bLVNILEEN N. FINAMORF.
ROGER P. LIPTON
BRIAN L. BIJ1( KBURN
GEOFFREY I3. 'WHITE
JOHN 1I. FITZ- GIBBON
April 10, 1997 FOR HAND DELIVERY ON 4/10/97
TO: City Clerk
Northampton City Hall
210 Main Street
Northampton, MA 01060
RE: NOTICE OF APPEAL OF SUBDIVISION MODIFICATION
Dear City Clerk:
Susan F. O'Neill and George A. Holland hereby give notice of their appeal of the
Northampton Planning Board's action, dated November 22, 1996, purporting to
amend the Brookwood Subdivision Plan by eliminating Birdcliff Road. A copy of the
subject "Notice of Subdivision Modification" is attached hereto and incorporated
herein by reference. Also attached hereto and incorporated herein by reference is a
copy of the court complaint filed on this date in Hampshire Superior Court.
Very truly yours,
Green, Miles, Lipton, White and Fitz - Gibbon, by
Susan L. Herzberg, Esq.
Pane 1
1
/ECEI VF\
NOV 21996
FORM F
Nrn444 NORTHAMPTON, MASS.
Noverr:E e r 22, 1996
Date
NOTICE OF SUBDIVISIONXP� � Pc t is MODIFICATION
To: City Clerk, City of Northampton
The Planning Board, on Oct. 24, 1996 by 6'() vote
MODIFIED
>11}QQ�]QF� the subdivision plan entitled:
Name of Subdivision: Brookwocd (Aprroved by the. Rnpr(i Ai,n 1- 1 - 960)
to delete
1�(�X street name(s): Birdcliff RoEd
Submitted by: Edward Etheredge, Esq. for Cyr,ttiia Wat.sor.-
Address: 64 Gothic Street, Northampton, MA 0106C
on (date) : Septerrtler 20, 1956 , pending termination of the
statutory twenty (20)day appeal period.
J
Signed: nu Q't-L)
Chair, Northampto P ann'ng B and
This vote of the Northampton Planning Board is duly recorded in the
minutes of their meeting held on the above date.
Copies to: Applicant Police Department
Building Inspector Board of Assessors
Board of Public Works Register of Voters
Fire Department Conservation Commission
Board of Health File
After twenty (20) days without notice of appeal, endorsed
blueprints , if approved, will be transmitted to:
Applicant 1 Mylar Register of Voters 1 Print
City Engineer 1 Mylar Police Department 1 Print
Assessors 1 Print Fire Department 1 Print
Bldg. Inspector 1 Print File 1 Print
ORDER AMENDING
SUBDIVISION PLAN
Upon petition of Cynthia J. Watson, an interested person, the Northampton
Planning Board, at its meeting on October 4 , 1996, upon motion made and seconded;
VOTED: to amend the subdivision plan of "Brookwood" on a Plan dated February,
1960, and approved by the Northampton Planning Board August 16, 1960
and recorded in the Hampshire County Registry of Deeds in Plan Book 56,
Pages 96 - 101, by deleting the paper street, "Birdcliff Road" from the plan
on pages 100 and 101 of Plan Book 56.
October 2 4, 1996
Northampton Planning Board
SEC
El VF
NOV 2 5,1996 By.
NoR����
I, Christine Skorupski, Clerk of the City of Northampton hereby certify
that the Notice of Subdivision Modification of this plan by the Planning
Board has be received and recorded at this office and no tice of appeal
was received during the twenty days next r such rece' t and recording
of said notice.
Att st:
istine Skor k
City Clerk
City of Northampton
�1
COMMONWEALTH OF MASSACHUSETTS
TRIAL COURT
HAMPSHIRE, SS.
SUPERIOR COURT DEPARTMENT
CIVIL NO.
SUSAN F. O'NEILL and GEORGE A. HOLLAND, Plaintiffs,
VS.
PLANNING BOARD OF THE CITY OF NORTHAMPTON (consisting of the following
individuals who are named herein solely in their official capacity as members of said
planning board: Kenneth Jodrie, Jody Blatt, Andrew J. Crystal, Anne Romano, Daniel
Yacuzzo, Nancy Duseau, Mark Nejame, and Paul Diemand), CITY OF NORTHAMPTON,
and CYNTHIA J. WATSON Defendants,
COMPLAINT
1. Plaintiffs Susan F. O'Neill and George A. Holland are natural persons who
own the real property known as 11 Country Way in Northampton, Hampshire County,
Massachusetts, as more particularly described in a deed dated March 12, 1992, from
Cynthia J. Watson to George A. Holland and Susan F. O'Neill, recorded in Hampshire
Registry of Deeds Registry at Book 3899, Page 199.
2. The following natural persons are named as defendants herein solely in their
official capacity as they are (or were at all times material to the events alleged in this
complaint) the Planning Board of the City of Northampton (all addresses are in
Northampton, MA 01060):
Kenneth Jodrie, 21 Fruit Street
Jody Blatt, 30 Diamond Court
Andrew J. Crystal, 51 Fairview Ave., Chairperson
Anne Romano, 71 King St.
Daniel Yacuzzo, 88 North Elm St., Vice Chairperson
Nancy Duseau, Rockland Heights
Mark NeJame, 47 High Street
Paul Diemand, 153 Franklin Street (an associate member at the time of the events
alleged in this complaint).
Page 1
•
3. Defendant City of Northampton is a municipal corporation duly organized and
existing under the laws of the Commonwealth of Massachusetts.
4. Defendant Cynthia J. Watson is the successor to the original developer of
Brookwood Subdivision, a Definitive Subdivision Plan recorded in the Hampshire County
Registry of Deeds at Plan Book 56, Page 96 et seq.., entitled "Brookwood, a Subdivision in
Northampton, Mass." stating "Planning Board, City of Northampton, Mass., PLAN
APPROVED... August 16, 1960 ", pursuant to two deeds, both dated March 11, 1989, from A.
Lowell Watson to Cynthia J. Watson, recorded in the Hampshire County Registry of Deeds
at Book 2696, Pages 235 and 236.
5. On or about November 22, 1996, there was filed with the Northampton City
Clerk a document which purported to be a "Notice of Subdivision Modification" stating that it
was in response to an application "Submitted by: Edward Etheredge, Esq. for Cynthia
Watson ".
6. The land of plaintiffs Susan F. O'Neill and George A. Holland abuts Birdcliff
Road, a private subdivision road shown on the Definitive Subdivision Plan recorded in the
Hampshire County Registry of Deeds at Plan Book 56, Page 96 et seq.., entitled
"Brookwood, a Subdivision in Northampton, Mass." stating "Planning Board, City of
Northampton, Mass., PLAN APPROVED... August 16, 1960."
7. On or about September 20, 1996, Attorney Edward Etheredge submitted to the
Northampton Planning Board a letter which purported to be a "petition on behalf of Cynthia
J. Watson, owner of Property on North Farms Road, Northampton, for an amendment of the
above - referenced subdivision plan by deleting the paper street ' Birdcliff Road' from the
approved subdivision plan." The "above- referenced subdivision plan" was listed in said
letter as "Sub- division Plan `Brookwood' by Hampshire American Homes, February, 1960,
Hampshire County Registry of Deeds, Plan Book 56, Pages 96 -102.
8. Defendant Cynthia Watson did not sign any application for amendment of the
Brookwood Subdivision Plan, and did not submit to defendant Northampton Planning Board
any written evidence that Attorney Edward Etheredge (or anyone else on her behalf) was
authorized to submit her "petition" of September 20, 1996. Without "written evidence" of
authority to act for defendant Cynthia J. Watson as the landowner, Attorney Etheredge was
not a proper "Applicant" as that term is defined in § 2:00 of the Rules and Regulations
Governing the Subdivision of Land in the City of Northampton, Massachusetts.
9. Defendant Cynthia Watson in submitting her "petition" letter of September 20,
1996, to the Northampton Planning Board, did not do any of the following:
(a) Failed to file notice of application with the Northampton City Clerk, as required by
G.L. c. 41, § 81T and by the Rules and Regulations Governing the Subdivision of
Page 2
•
Land in the City of Northampton, Massachusetts (hereafter "Northampton Subdivision
Regulations ") § 6:02 "Submission ".
(b) Failed to submit "A properly executed application (See Appendix A, Form C)" as
required by the Northampton Subdivision Regulations, § 6.02.1.
(c) Failed to comply with § 6.02.4 of the Northampton Subdivision Regulations, which
states as follows:
"The full submission shall consist of:... 4. List of abutters (See Appendix
A, Form D). Name and mailing address of all abutters as they appear in
the most recent tax list, including owners of land separated form the
subdivision only by a street. The applicant shall obtain a certificate of the
Board of Assessors that all abutters are listed."
(d) Failed to submit to the Northampton Board of Assessors that agency's standard form
to "request from the Board of Assessors, abutters lists for the property" which was the
subject of his "petition" to the Planning Board.
10. On or about October 24, 1996, defendant Planning Board of Northampton held
what purported to be, according to the hearing notice, a Public Hearing on a request from
Edward D. Etheredge to modify the Brookwood Definitive Subdivision Plan by deleting
Birdcliff Road, a paper street ..."
11. Defendant Planning Board of Northampton failed to provide abutters of Birdcliff
Road with registered mail notice of its October 24, 1996, purported "public hearing ".
12. Defendant Planning Board of Northampton failed to comply with § 6:06.1 of the
Northampton Subdivision Regulations, which state in relevant part as follows: "A copy of
said notice shall be mailed by registered mail to the applicant and to all owners of land
abutting upon the subdivision of [sic, probably should be "or "] separated from such land only
by a street as appearing in the most recent tax list submitted by the applicant (see Form D)."
13. Plaintiffs Susan A. O'Neill and George F. Holland did not receive any mailed
notice of the purported public hearing held by defendant Planning Board of Northampton on
or about October 24, 1996.
14. Plaintiffs Susan A. O'Neill and George F. Holland did not receive any actual
notice of the purported public hearing held by defendant Planning Board of Northampton on
or about October 24, 1996.
15. Plaintiffs Susan A. O'Neill and George F. Holland, through their attorney,
learned of the purported amendment of the Brookwood Subdivision Plan, eliminating
Birdcliff Road, only on March 21, 1997, when their attorney received from Attorney Edward
Etheredge a letter dated March 20, 1997, which enclosed a copy of the purported notice of
Page 3
•
that amendment.
16. Where, as here, a party received neither mailed nor any actual notice of a
public hearing, the twenty -day appeal period provided by G.I. c. 41, § 81 BB begins to run at
the earliest only on the date they receive such notice, in this case March 21, 1997, and
expiring twenty days thereafter, on April 10, 1997 (the date on which this complaint is timely
filed).
17. By reason of the failure of notice of public hearing, the Northampton Planning
Board did not acquire jurisdiction over the purported "petition" submitted by defendant
Cynthia Watson to amend the Brookwood Subdivision Plan by eliminating Birdcliff Road.
18. By reason of the failure of mailed notice of public hearing, plaintiffs Susan A.
O'Neill and George F. Holland were prejudiced by their resulting inability to attend the
purported public hearing on October 24, 1996, to oppose the elimination of Birdcliff Road
from the Brookwood Subdivision Plan.
19. Defendant Cynthia Watson, acting through Attorney Edward Etheredge, did
appear at the October 24, 1996, purported public hearing held by the defendant
Northampton Planning Board on October 24, 1996, and there presented legal argument
supported by legal authority which persuaded the Planning Board to vote unanimously to
vote to amend the Brookwood Subdivision Plan by eliminating Birdcliff Road.
20. Defendant Planning Board of Northampton's purported modification of the
Brookwood Subdivision Plan eliminating Birdcliff Road is invalid, a nullity, and of no force
and effect whatsoever.
FIRST CLAIM FOR RELIEF SUBDIVISION APPEAL G.L. c. 41. § 81 BB
21. Plaintiffs re- allege paragraphs 1 through 20 of this complaint as though fully
set forth herein.
22. Plaintiffs are persons aggrieved by the actions of defendant Planning Board of
Northampton, as alleged in this complaint.
23. The actions of defendant Planning Board of Northampton, as alleged in this
complaint, exceeded the Planning Board's authority and should be annulled.
WHEREFORE, plaintiffs pray for a judgment annulling the decision of defendant Planning
Board of Northampton to amend the Brookwood Subdivision Plan by eliminating Birdcliff
Page 4
•
Road, and for such other and further relief as this court may deem just in the premises, and
for the costs of this action.
SECOND CLAIM FOR RELIEF: ACTION IN THE NATURE OF MANDAMUS. G.L. c. 249. § 5
24. Plaintiffs re- allege paragraphs 1 through 23 of this complaint as though fully
set forth herein.
25. That the defendant Planning Board of Northampton has failed and neglected
its duty to provide plaintiffs with registered mail notice of any public hearing concerning
amendment of the Brookwood Subdivision Plan by eliminating Birdcliff Road.
26. By reason of the failure of defendant Planning Board of Northampton to
provide plaintiffs with registered mail notice of said public hearing, the plaintiffs were denied
their constitutional and legal right to notice and opportunity to be heard in opposition to the
elimination of Birdcliff Road from the Brookwood subdivision.
WHEREFORE, plaintiffs pray for a judgment annulling the decision of defendant Planning
Board of Northampton to amend the Brookwood Subdivision Plan by eliminating Birdcliff
Road, for an order directing defendant Planning Board of Northampton to comply with all
applicable notice requirements in any future hearing concerning amendment of Brookwood
Subdivision Plan, and for such other and further relief as this court may deem just in the
premises, and for the costs of this action.
THIRD CLAIM FOR RELIEF: DECLARATORY JUDGMENT. G.L. c. 231 A
27. Plaintiffs re- allege paragraphs 1 through 20 of this complaint as though fully
set forth herein.
28. There exists between the parties an actual justiciable controversy within the
jurisdiction of this court concerning the matters alleged in this Complaint.
WHEREFORE, plaintiffs pray for a judgment annulling the decision of defendant Planning
Board of Northampton to amend the Brookwood Subdivision Plan by eliminating Birdcliff
Road, or for such other and further relief as this court may deem just in the premises, and for
the costs of this action.
Page 5
•
Dated April 10, 1997
Plaintiffs Susan F. O'Neill and George A. Holland,
by their Attorneys,
Green, Miles, Lipton, White and Fitz - Gibbon:
Susan L. Herzberg, F.�q. v
Green, Miles, Lipton, White & Fitz - Gibbon
77 Pleasant St., P.O. Box 210
Northampton, MA 01061
(413) 586 -8218
BBO# 564455
Harry L. iles, Esq.
Green, Iles, Lipton 4 hite & Fitz - Gibbon
77 Pleasant St., P. , . Box 210
Northampton, MA 01061
(413) 586 -8218
BBO# 345800
Page 6
•
GREEN,
JOHN J. GREEN, JR.
HARRY L. MILES
ROGER P. LIPTON
GEOFFREY B. WHITE
JOHN H. FITZ- GIBBON
MILE S, LIPTON,: WHITE • , FITZ- GIBBON :
ATTORNEVS AT LAW :•.
77 PLEASANT STREET
POST OFFICE BOX 210
NORTHAMPTON, MASSACHUSETTS 01061 -0210
(413) 586 -8218
FAX (413) 584 -6278
SUSAN L. HERZBERG
KATHLEEN N. FINAMORI:
BRIAN L. BLACKBURN
April 10, 1997 FOR HAND DELIVERY ON 4/10/97
TO: City Clerk
Northampton City Hall
210 Main Street
Northampton, MA 01060
RE: NOTICE OF APPEAL OF SUBDIVISION MODIFICATION
Dear City Clerk:
Susan F. O'Neill and George A. Holland hereby give notice of their appeal of the
Northampton Planning Board's action, dated November 22, 1996, purporting to
amend the Brookwood Subdivision Plan by eliminating Birdcliff Road. A copy of the
subject "Notice of Subdivision Modification" is attached hereto and incorporated
herein by reference. Also attached hereto and incorporated herein by reference is a
copy of the court complaint filed on this date in Hampshire Superior Court.
Very truly yours,
Green, Miles, Lipton, White and Fitz - Gibbon, by
Susan L. Herzberg, Esq.
,gEIVF\
APR 10 1997
C\
Pane 1
COY' !1• rte►
/ECEI
NOV 21996
FORM F
NORTHAMPTON, MASS.
NoverrC - er 22, 1996
Date
NOTICE OF SUBDIVISION AR c�t�f� � % MODIFICATION
To: City Clerk, City of Northampton
The Planning Board, on Oct. 24, 1996 by 6:0 vote
MODIFIED
the subdivision plan entitled:
Name of Subdivision: Brookwocd (Auroved by thF. Rnar(i Aiin 1 6,--4- 960)
to delete
1�9X street name(s): Birdcliff Road
Submitted by: Edward Etheredge, Esq. for Cynthia Watson
Address: 64 Gothic Street, Northarr.pt.or, MA 0106C
On (date) : September 20, 1996 , pending termination of the
statutory twenty (20)day appeal period.
nA-j
J
Signed:
A I
Chair,
Northampto
P ann'ng
B and
This vote of the Northampton Planning Board is duly recorded
in the
minutes of their
meeting held on
the above date.
Copies to:
Applicant
Police Department
Building Inspector
Board of Assessors
Board of Public Works Register of Voters
Fire Department
Conservation Commission
Board of Health
File
After twenty
(20) days without notice of appeal, endorsed
blueprints , if
approved, will be
transmitted to:
Applicant
1 Mylar
Register of Voters 1
Print
City Engineer
1 Mylar
Police Department 1
Print
Assessors
1 Print
Fire Department 1
Print
Bldg. Inspector
1 Print
File 1
Print
•
ORDER AMENDING
SUBDIVISION PLAN
r iVF\
APR 1 0 1997
c �FAK NOR��
Upon petition of Cynthia J. Watson, an interested person, the Northampton
Planning Board, at its meeting on October g , 1996, upon motion made and seconded;
VOTED: to amend the subdivision plan of "Brookwood" on a Plan dated February,
1960, and approved by the Northampton Planning Board August 16, 1960
and recorded in the Hampshire County Registry of Deeds in Plan Book 56,
Pages 96 - 101, by deleting the paper street, "BirdcliffRoad" from the plan
on pages 100 and 101 of Plan Book 56.
October 2 4 , 1996
APPROVED:
Northampton Planning Board
/ECEIVF
NOV 2 J 1996 By '
c\ K
I, Christine Skorupski, Clerk of the City of Northampton hereby certify
that the Notice of Subdivision Modification of this plan by the Planning
Board has be received and recorded at this office and no -tice of appeal
was received during the twenty days next r such rece t and recording
of said notice.
Att st:
istine Skor
City Clerk
City of Northampton
COMMONWEALTH OF MASSACHUSETTS
TRIAL COURT
HAMPSHIRE, SS.
SUPERIOR COURT DEPARTMENT
CIVIL NO. =
APR 1 0 1997
c o�
\/( NOMt
SUSAN F. O'NEILL and GEORGE A. HOLLAND, Plaintiffs,
VS.
PLANNING BOARD OF THE CITY OF NORTHAMPTON (consisting of the following
individuals who are named herein solely in their official capacity as members of said
planning board: Kenneth Jodrie, Jody Blatt, Andrew J. Crystal, Anne Romano, Daniel
Yacuzzo, Nancy Duseau, Mark Nejame, and Paul Diemand), CITY OF NORTHAMPTON,
and CYNTHIA J. WATSON Defendants,
COMPLAINT
1. Plaintiffs Susan F. O'Neill and George A. Holland are natural persons who
own the real property known as 11 Country Way in Northampton, Hampshire County,
Massachusetts, as more particularly described in a deed dated March 12, 1992, from
Cynthia J. Watson to George A. Holland and Susan F. O'Neill, recorded in Hampshire
Registry of Deeds Registry at Book 3899, Page 199.
2. The following natural persons are named as defendants herein solely in their
official capacity as they are (or were at all times material to the events alleged in this
complaint) the Planning Board of the City of Northampton (all addresses are in
Northampton, MA 01060):
Kenneth Jodrie, 21 Fruit Street
Jody Blatt, 30 Diamond Court
Andrew J. Crystal, 51 Fairview Ave., Chairperson
Anne Romano, 71 King St.
Daniel Yacuzzo, 88 North Elm St., Vice Chairperson
Nancy Duseau, Rockland Heights
Mark NeJame, 47 High Street
Paul Diemand, 153 Franklin Street (an associate member at the time of the events
alleged in this complaint).
Page 1
•
APR 1 G 1997
�_ � NW� F
3. Defendant City of Northampton is a municipal corporation duly organized and
existing under the laws of the Commonwealth of Massachusetts.
4. Defendant Cynthia J. Watson is the successor to the original developer of
Brookwood Subdivision, a Definitive Subdivision Plan recorded in the Hampshire County
Registry of Deeds at Plan Book 56, Page 96 et seq.., entitled "Brookwood, a Subdivision in
Northampton, Mass." stating "Planning Board, City of Northampton, Mass., PLAN
APPROVED... August 16, 1960 ", pursuant to two deeds, both dated March 11, 1989, from A.
Lowell Watson to Cynthia J. Watson, recorded in the Hampshire County Registry of Deeds
at Book 2696, Pages 235 and 236.
5. On or about November 22, 1996, there was filed with the Northampton City
Clerk a document which purported to be a "Notice of Subdivision Modification" stating that it
was in response to an application "Submitted by: Edward Etheredge, Esq. for Cynthia
Watson ".
6. The land of plaintiffs Susan F. O'Neill and George A. Holland abuts Birdcliff
Road, a private subdivision road shown on the Definitive Subdivision Plan recorded in the
Hampshire County Registry of Deeds at Plan Book 56, Page 96 et seq.., entitled
"Brookwood, a Subdivision in Northampton, Mass." stating "Planning Board, City of
Northampton, Mass., PLAN APPROVED... August 16, 1960."
7. On or about September 20, 1996, Attorney Edward Etheredge submitted to the
Northampton Planning Board a letter which purported to be a "petition on behalf of Cynthia
J. Watson, owner of Property on North Farms Road, Northampton, for an amendment of the
above - referenced subdivision plan by deleting the paper street ' Birdcliff Road' from the
approved subdivision plan." The "above- referenced subdivision plan" was listed in said
letter as "Sub- division Plan 'Brookwood' by Hampshire American Homes, February, 1960,
Hampshire County Registry of Deeds, Plan Book 56, Pages 96 -102.
8. Defendant Cynthia Watson did not sign any application for amendment of the
Brookwood Subdivision Plan, and did not submit to defendant Northampton Planning Board
any written evidence that Attorney Edward Etheredge (or anyone else on her behalf) was
authorized to submit her "petition" of September 20, 1996. Without "written evidence" of
authority to act for defendant Cynthia J. Watson as the landowner, Attorney Etheredge was
not a proper "Applicant" as that term is defined in § 2:00 of the Rules and Regulations
Governing the Subdivision of Land in the City of Northampton, Massachusetts.
9. Defendant Cynthia Watson in submitting her "petition" letter of September 20,
1996, to the Northampton Planning Board, did not do any of the following:
(a) Failed to file notice of application with the Northampton City Clerk, as required by
G.L. c. 41, § 81T and by the Rules and Regulations Governing the Subdivision of
Page 2
APR 1
X997
c �FRK NOR��
Land in the City of Northampton, Massachusetts (hereafter "Northampton Subdivision
Regulations ") § 6:02 "Submission ".
(b) Failed to submit "A properly executed application (See Appendix A, Form C)" as
required by the Northampton Subdivision Regulations, § 6.02.1.
(c) Failed to comply with § 6.02.4 of the Northampton Subdivision Regulations, which
states as follows:
"The full submission shall consist of:... 4. List of abutters (See Appendix
A, Form D). Name and mailing address of all abutters as they appear in
the most recent tax list, including owners of land separated form the
subdivision only by a street. The applicant shall obtain a certificate of the
Board of Assessors that all abutters are listed."
(d) Failed to submit to the Northampton Board of Assessors that agency's standard form
to "request from the Board of Assessors, abutters lists for the property" which was the
subject of his "petition" to the Planning Board.
10. On or about October 24, 1996, defendant Planning Board of Northampton held
what purported to be, according to the hearing notice, a "Public Hearing on a request from
Edward D. Etheredge to modify the Brookwood Definitive Subdivision Plan by deleting
Birdcliff Road, a paper street ..."
11. Defendant Planning Board of Northampton failed to provide abutters of Birdcliff
Road with registered mail notice of its October 24, 1996, purported "public hearing ".
12. Defendant Planning Board of Northampton failed to comply with § 6:06.1 of the
Northampton Subdivision Regulations, which state in relevant part as follows: "A copy of
said notice shall be mailed by registered mail to the applicant and to all owners of land
abutting upon the subdivision of [sic, probably should be "or separated from such land only
by a street as appearing in the most recent tax list submitted by the applicant (see Form D)."
13. Plaintiffs Susan A. O'Neill and George F. Holland did not receive any mailed
notice of the purported public hearing held by defendant Planning Board of Northampton on
or about October 24, 1996.
14. Plaintiffs Susan A. O'Neill and George F. Holland did not receive any actual
notice of the purported public hearing held by defendant Planning Board of Northampton on
or about October 24, 1996.
15. Plaintiffs Susan A. O'Neill and George F. Holland, through their attorney,
learned of the purported amendment of the Brookwood Subdivision Plan, eliminating
Birdcliff Road, only on March 21, 1997, when their attorney received from Attorney Edward
Etheredge a letter dated March 20, 1997, which enclosed a copy of the purported notice of
Page 3
�r ED VFO
A 1 G 1gS7
that amendment.�� °�
R K NORZ
16. Where, as here, a party received neither mailed nor any actual notice of a
public hearing, the twenty -day appeal period provided by G.I. c. 41, § 81 BB begins to run at
the earliest only on the date they receive such notice, in this case March 21, 1997, and
expiring twenty days thereafter, on April 10, 1997 (the date on which this complaint is timely
filed).
17. By reason of the failure of notice of public hearing, the Northampton Planning
Board did not acquire jurisdiction over the purported "petition" submitted by defendant
Cynthia Watson to amend the Brookwood Subdivision Plan by eliminating Birdcliff Road.
18. By reason of the failure of mailed notice of public hearing, plaintiffs Susan A.
O'Neill and George F. Holland were prejudiced by their resulting inability to attend the
purported public hearing on October 24, 1996, to oppose the elimination of Birdcliff Road
from the Brookwood Subdivision Plan.
19. Defendant Cynthia Watson, acting through Attorney Edward Etheredge, did
appear at the October 24, 1996, purported public hearing held by the defendant
Northampton Planning Board on October 24, 1996, and there presented legal argument
supported by legal authority which persuaded the Planning Board to vote unanimously to
vote to amend the Brookwood Subdivision Plan by eliminating Birdcliff Road.
20. Defendant Planning Board of Northampton's purported modification of the
Brookwood Subdivision Plan eliminating Birdcliff Road is invalid, a nullity, and of no force
and effect whatsoever.
FIRST CLAIM FOR RELIEF: SUBDIVISION APPEAL G L c 41 § 81 BB
21. Plaintiffs re- allege paragraphs 1 through 20 of this complaint as though fully
set forth herein.
22. Plaintiffs are persons aggrieved by the actions of defendant Planning Board of
Northampton, as alleged in this complaint.
23. The actions of defendant Planning Board of Northampton, as alleged in this
complaint, exceeded the Planning Board's authority and should be annulled.
WHEREFORE, plaintiffs pray for a judgment annulling the decision of defendant Planning
Board of Northampton to amend the Brookwood Subdivision Plan by eliminating Birdcliff
Page 4
APR 1 G 1997
Road, and for such other �F P�
and further relief as this court may deem just in �� se:
for the costs of this action.
, and
24. Plaintiffs re- allege paragraphs 1 through 23 of this complaint as though fully
set forth herein.
25. That the defendant Planning Board of Northampton has failed and neglected
its duty to provide plaintiffs with registered mail notice of an
public
amendment of the Brookwood Subdivision Plan by eliminat ng Biyd I ff hearing
oad.o ncerning
26. By reason of the failure of defendant Planning Board of Northampton to
provide plaintiffs with registered mail notice of said public hearing, the plaintiffs were denied
their constitutional and legal right to notice and opportunity to be heard in opposition to the
elimination of Birdcliff Road from the Brookwood subdivision.
WHEREFORE, plaintiffs pray for a judgment annulling the decision of defendant Planning
Board of Northampton to amend the Brookwood Subdivision Plan by eliminating Birdcliff
Road, for an order directing defendant Planning Board of Northampton to comply with all
applicable notice requirements in any future hearing concerning amendment of Brookwood
Subdivision Plan, and for such other and further relief as this court may deem just in the
premises, and for the costs of this action.
THIRD CLAIM FOR RELIEF: DECLARATORY JUDGMENT G.L. c. 231A
27. Plaintiffs re- allege paragraphs 1 through 20 of this complaint as though fully
set forth herein.
28. There exists between the parties an actual justiciable controversy within the
jurisdiction of this court concerning the matters alleged in this Complaint.
WHEREFORE, plaintiffs pray for a judgment annulling the decision of defendant Planning
Board of Northampton to amend the Brookwood Subdivision Plan by eliminating Birdcliff
Road, or for such other and further relief as this court may deem just in the premises, and for
the costs of this action.
Page 5
C ,
Dated April 10, 1997
Plaintiffs Susan F. O'Neill and George A. Holland,
by their Attorneys,
Green, Miles, Lipton, White and Fitz - Gibbon:
usan L. Herzber q.
Green, Miles, Lipton, White & Fitz - Gibbon
77 Pleasant St., P.O. Box 210
Northampton, MA 01061
(413) 586 -8218
BBO# 564455
�ryC EI VF\
APP 1 C 1Sc7
� c�FRK
NO TNP�Qo
R
Harry L. iles, Esq VBox Green, iles, LiptoWhite & Fitz - Gibbon
77 Pleasant St., P. 210
Northampton, MA 01061
(413) 586 -8218
BBO# 345800
Page 6
FORM F .
NORTHAMPTON, MASS.
NoverrCe
NOTICE OF Date 2 -
To: 1996
8 OBDIDI gIpN X �
City Clerk' City of North ampton The planning MODIFICATIOn�
MoEIFIEC Board, on Oct. 24
19 9 6 by
the subdivision la Lj
vot
Name of S ubdivision: P entitl
to delete d
'X'WW str name s A ro
( ) : -Bi rdc 1 ; F, „
6C)
Su bmitted by: EdH -ard
E theredgE,
Address; Esq. for Cynthi
64 Gothic Street, No Wat.sor.
O n (date rtharr.ptor., M�'
statutory SeptembFr 2C• 0106C
Y twenty 1956
(20)day appeal period. pending termination of the
Signed: /
Chair, Northampto
This vote of the Northampton P ann'�
Planning n g B ard
minutes of their g Board is duly
meeting held on the above date, recorded in the
Copies to:
Applicant
Building Inspector Police Department
Board of Public Works B oard of Assessors
Fire Department Register of Voters
Board of Health Conservation Commission
After without of appeal, endorsed
File
twenty (2 p) days
blueprints , if approved, will be transmitted to: