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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: