Pratap Oak Arcadia Waltham Old Lot Zoning Case -- Joint Pre-Trial Memorandum Land Court by BuildJustice

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MIDDLESEX. ss.                                                           Superior Court Department
                                                                         Civil Action No. 04-5014H

                                            )
PRATAP OAK.                                 )
                                Plaintiff.  )
        v.                                  )
                                            )
DAVID P ANTELONE. DONNA PANTELONE. )
ZONING BOARD OF APPEALS of the CITY OF )
WALTHAM. EDWARD T. McCARTHY. JR..           )
BRUCE MORRIS, BARBARA RANDO,                )
MICHAEL 1. COTTON and JOHN SERGI, as        )
they are members of the ZONING BOARD OF     )
APPEALS of the CITY OF WALTHAM. and         )
W:ALTEJ.{"E'.OHNEMUS, INC.,                 )
                                Defendants. )


                                    JOINT PRE-TRIAL MEMORANDUM

       The parties submit this Joint Pre-Trial Memorandum for the Final Pre-Trial Conference
on April 19. 2006.

I.          AGREED FACTS

            1.       On November 23,2004, the Zoning Board of Appeals of the City of Waltham (the
                     "Board") granted a variance to defendants David and Donna Pantalone under the
                     Zoning Ordinance of the City of Waltham (the "Zoning Ordinance") for the
                     construction of a single-family house on Lot 81, Arcadia Avenue, Waltham. MA
                     (the "Locus"). The Plaintiffs challenge, pursuant to M.G.L. c. 40A § 17, this
                     decision.

            2.       The defendant Board is the duly constituted board of appeals of the City of
                     Waltham, Massachusetts, a municipal corporation in Middlesex County with a
                     principal place of business at 119 School Street, Waltham, MA 02451.

            3.       The plaintiffPratap Oak owns and resides with his family at 96 Arcadia Avenue,
                     Waltham. MA 02452, abutting the western boundary of the Locus.

            4.       The defendants David and Donna Pantalone I reside at 20 Temple Road, Waltham,
                     MA 02452. They obtained the dimensional variance that is being challenged by
                     the Plaintiff in this action.

1    This is the correct spelling of the Pantalones' name.
5.    The defendant Walter E. Ohnemus, Inc. ("Ohnemus") is a Massachusetts
      corporation with a principal place of business at 32 Cowasset Lane, Waltham,
      MA 02154. Ohnemus owns the Locus.

6.    On June 9, 1998, Ohnemus purchased six adjoining lots, known as Lots 76-81, on
      Arcadia Avenue from Sumner and Helen Barbarick. The Locus is the
      easternmost lot in that row. On its east side, the Locus abuts undeveloped
      woodland, formerly part of the grounds of Metropolitan State Hospital and
      currently owned by the Commonwealth of Massachusetts.

7.    The Oaks bought Lot 80 (96 Arcadia Avenue) from Ohnemus.

8.    In 1999, Ohnemus applied to the Board for variances from the minimum lot
      frontage and width requirements of the Zoning Ordinance for the construction of a
      single-family house on the Locus. On September 9, 1999, the Board unanimously
      denied the variances.

9.    In 2002, Ohnemus again applied to the Board for variances for the Locus. On
      November 26, 2002, it withdrew that application without prejudice.

10.   The Locus is trapezoidal, with 17.98 feet of frontage on Arcadia Avenue. The lot
      is 38.76 feet wide at the rear of the proposed house and 35.97 feet at the rear lot
      line. It lot is 172.95 feet long on its western boundary, the Oaks' lot line.

11.   On September 30, 2004, the Pantalones applied to the Board for variances from
      the minimum lot frontage and width requirements of the Zoning Ordinance for the
      construction of a single-family house on the Locus.

12.   The proposed house would be approximately 48 feet long (front to back) and 24
      feet wide, and two stories high. It would be located 8.15 feet from the western lot
      line of the Locus and 17.10 feet from the Oaks' house.

13.   As the owner of the Locus, Ohnemus authorized the Pantalones to apply for the
      vanances.

14.   The Board conducted public hearings on the Petitioners' application on November
      16 and 23, 2004. On November 23, it voted unanimously to grant the variances.

15.   The Board filed its decision on the Pantalones' variance application with the City
      Clerk on December 2, 2004.

16.   On December 21,2004, the plaintiff sent Ohnemus a demand letter pursuant to
      General Laws Chapter 93A, Section 9 concerning the matters set forth in the
      Complaint.




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       17.     Ohnemus is engaged in the conduct of trade or commerce.

       18.     On January 19, 2005, Ohnemus responded to the demand letter, but did not make
               any offer of settlement.

II.    THE PARTIES' EXPECTED EVIDENCE

       A.      PLAINTIFF'S EXPECTED EVIDENCE

       In addition to the Agreed Facts set forth above, the plaintiff expects the evidence at trial
to show the following:

        1.     The Pantalones' variance application does not meet any of the requirements for a
               variance under General Laws Chapter 40A, Section 10 or the Zoning Ordinance.
               The Pantalones did not show (1) any distinctive circumstances regarding the soil
               conditions, shape or topography of Lot 81, (2) that, based on any such conditions,
               a literal enforcement of the provisions of the zoning ordinance would involve
               substantial hardship to them, or (3) that desirable relief may be granted without
               substantial detriment to the public good and without nullifying or substantially
               derogating from the intent or purpose ofthe ordinance, because of the impacts of
               the proposed project on the Oaks and the neighborhood. Moreover, if any
               hardship exists, it was self-inflicted by Ohnemus when it subdivided Lot 81 from
               the larger parcel.

       2.      Ohnemus' Arcadia Avenue property was subject to a subdivision plan approved
               in 1916. After Ohnemus purchased the property on Arcadia Avenue, he divided it
               into six lots and built five houses on Lots 76-80.

       3.      On September 9, 1999, the Board denied Ohnemus' previous request for
               variances to construct a single-family house on Lot 81, finding that: (1) the
               petitioner did not meet the criteria in General Laws Chapter 40A, Section 10; (2)
               any hardship was created by the petitioner; and (3) granting the variance would
               cause a substantial detriment to the public good and would have an impact on the
               neighborhood.

       4.      Mr. Oak would be significantly and adversely affected by the proposed single-
               family house on the Locus and therefore is aggrieved by the Board's November
               23,2004 decision.

       5.      Mr. Oak is a direct abutter to Lot 81. The proposed single-family house on Lot 81
               would deprive the Oaks of privacy, open space and views of state-owned
               conservation land, increase crowding, noise, difficulty with parking, traffic, and
               drainage and runoff problems, and reduce the value of their property.




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      6.     The Board's decision on the variances also requires a six-foot high fence to be
             constructed on the western lot line of Lot 81, bordering the Oaks' property. That
             fence would be less than 9 feet from the Oaks' house.

      7.     The Board correctly found that Lot 81 is subject to Article 3, Section3.711 ofthe
             Zoning Ordinance, which requires 40 feet of frontage for lots laid out and
             recorded before 1988. The Board also correctly found that Lot 81 is subject to
             Article 4, Section 4.12(10) of the Zoning Ordinance, which requires that
             minimum lot frontage be maintained to the rear of the building or 50% of the lot
             depth, whichever is greater. The lot width at the rear of the proposed building,
             which is the greater distance, is 38.76 feet. A minimum of 40 feet is required
             under the Zoning Ordinance.

      8.     In 1997, Mr. and Mrs. Oak met with Fred Bryson, a realtor at The Prudential
             Colonial Real Estate, 552 Main St., Waltham, MA 02154. Mr. Bryson told the
             Oaks that there was a plan to build new houses on six lots on Arcadia A venue.
             Mr. Bryson described the project, and Mr. Oak told him that they were interested
             in the comer lot (Lot 81). After viewing the area, Mr. Oak gave Mr. Bryson a
             deposit of approximately $400-500 for Lot 81.

      9.     In 1998, Mr. and Mrs. Oak met with Walter Ohnemus at Mr. Bryson's office.
             They told him that they wanted to purchase the last lot in the subdivision, so that
             they would have no houses on their east side. He told them that Lot 81 was not a
             buildable lot, so they should purchase Lot 80 instead. He promised them that Lot
             80 would be the last house in the subdivision. On December 16, 1998, in reliance
             on Mr. Ohnemus' representation and promise, the Oaks bought Lot 80 (96
             Arcadia Avenue) instead of Lot 81.

       10.   After selling Lot 80 to the Oaks, Ohnemus applied for variances to construct a
             single-family house on Lot 81. It also authorized the Pantalones to apply for
             variances for the same purpose. This conduct breached Ohnemus' representations
             to and agreement with Mr. Oak and caused him damages.

       11.    Ohnemus' breach of contract with Mr. Oak is an unfair or deceptive act or
              practice in violation of General Laws Chapter 93A, Section 2, that has caused Mr.
              Oak damages. Ohnemus' violation of Chapter 93A was willful or knowing.
              Ohnemus' refusal to make an offer of settlement in response to Mr. Oak's Chapter
              93A demand letter was in bad faith with knowledge or reason to know that its
              actions violated General Laws Chapter 93A, Section 2.

       B.     THE BOARD'S EXPECTED EVIDENCE

      The Defendants adopt the findings of fact made by the City of Waltham Zoning Board of
Appeals in its decision dated November 30, 2004, appended to the Complaint as Exhibit A.
Defendant City of Waltham Zoning Board of Appeals anticipates that the evidence will show




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that its decision was based upon the evidence presented at the public hearings and was not
arbitrary or capricious or an abuse of discretion.

        The evidence will also show that the Plaintiffs have not articulated any harm peculiar to
them or their property interests and, consequently, that they lack standing to bring this action
against Defendant City of Waltham Zoning Board of Appeals under M.G.L. c. 40A, § 17.

      The Board also asserts that the alleged private contract dispute between Plaintiffs and
Defendant Onhemus has no bearing on whether the Board exceeded its authority by granting the
dimensional variance to Defendants David and Donna Pantalone.

       C.      OHNEMUS' EXPECTED EVIDENCE

        The Defendant Walter E. Ohnemus, Inc. expects the evidence to clearly show that,he did
not ever promise the Plaintiff that Lot 81 was not buildable, nor did he promise the Plaintiff that
Lot 80 would be the last house in the subdivision. Defendant Ohnemus contends that he bought
the six-lot tract ofland with the fuJI intention of building and selling a home on each lot, and that
he acted in accordance with that intention at all times in relation to this matter. Defendant
Ohnemus further expects that the evidence will show that the Plaintiff did not include any
language regarding the alleged promises made by Defendant Ohnemus in the Purchase & Sale
Agreement for the Plaintiffs purchase of Lot 80, nor did the Plaintiff ever mention those alleged
promises despite the fact that he attended three public zoning variance hearings before the
Waltham Zoning Board of Appeals, for two of which he submitted lengthy written objections.

       D.      THE PANTALONES' EXPECTED EVIDENCE

       In addition to the agreed facts set forth above, the Pantalones' expect the evidence at trial
to show the following:

        1.     The ZBA Petition was to allow the construction of a single family residential
               dwelling on the property known as Lot 81, Arcadia Avenue, Waltham,
               Massachusetts.

       2.      The lot is located in the Residence A-2 Zoning District of the City of Waltham.

       3.      The lot was laid out on a plan entitled "Plan of Land in Waltham, Mass. owned by
               Phineas Lawrence et al to be conveyed to the Commonwealth of Massachusetts",
               dated Jan. 1916, recorded with Middlesex South District Registry of Deeds in
               Plan Book 242, Plan 22. The locus, Lot 81, Arcadia Avenue, as shown on sheet 2
               of said plan, has remained unchanged to date.

       4.      The lot is entitled to the benefits of Article 4, Sections 4,218,4.2181 and 4.2182
               of the City of Waltham ordinance as a lot laid out and recorded prior to October
               13, 1942.




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       5.      The lot has frontage of 17.98 feet and even though it is an "old" lot, laid out prior
               to zoning, under the revised ordinance technically 40.00 feet is required.

       6.      The lot width at the point equivalent to rear of the house, which is greater than
               50% of the lot depth, is 38.76 feet and a minimum of 40.00 feet is required.

       7.      There are conditions which specifically affect this lot and not others generally in
               the zoning district. The lot is very odd shaped as shown on the subdivision plan of
               1916.

       8.      The Pantalone's were unable to make reasonable use of the property without the
               variance requested as no dwelling could be built thereon.

       9.      The effect of the proposed construction on the lot is not detrimental to the public
               nor derogate from the intent of the zoning ordinance as it would be a residential
               dwelling in a residential zoning district with several similar sized lots.

       10.     Granting the relief desired allowed the Pantalone's to make reasonable use of its
               property without any detrimental impact upon the abutters or the zoning district in
               general.

       11.     The Pantalone's assert and believe that all statutory criteria for the granting of a
               variance have been met.

III.   AGREED SUGGESTED DESCRIPTION OF CASE

       The plaintiff, Pratap Oak owns and resides with his family at 96 Arcadia Avenue,
Waltham. The defendant Walter E. Ohnemus, Inc. sold Mr. Oak his house and owns Lot 81 on
Arcadia Avenue, next door. The defendants David and Donna Pantalones plan to purchase Lot
81 from Ohnemus. They applied to the Waltham Zoning Board of Appeals for variances to build
a house there. The Zoning Board granted the variances:

        Mr. Oak alleges that the Zoning Board improperly granted the Pantalones' application for
the variance. He also alleges that Ohnemus breached its promise to the Oaks that they would
own the last house in the subdivision and there would not be a house on Lot 81. The Defendants
deny Mr. Oak's allegations.

IV.    UNUSUAL LEGAL ISSUES

       None.

V.     WITNESSES

       A.      PLAINTIFF'S WITNESSES

        1.     Pratap Oak, 96 Arcadia Ave., WaItham, MA;



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              2.     Pooja Oak, 96 Arcadia Ave., Waltham, MA;
              3.     David Pantalone, 20 Temple Rd., Waltham, MA;
              4.     Donna Pantalone, 20 Temple Rd., Waltham, MA;
              5.     Walter E. Ohnemus, 32 Cowasset Lane, Waltham, MA; and
              6.     Fred Bryson, The Prudential Colonial Real Estate, 552 Main St., Waltham, MA.

              The Plaintiff reserves the right to supplement this list of witnesses before triaL

              B.     THE BOARD'S WITNESSES

              1.     The members of the City of Waltham Zoning Board of Appeals;
              2.     A City employee with water, sewer, drainage, and engineering knowledge;
              3.     A member of the City of Waltham Traffic Commission;

              The Board also reserves the right to can any other witnesses necessary based on the
              evidence presented by Plaintiffs at triaL

              C.      OHNEMUS' WITNESSES

              1.      Walter E. Ohnemus, 32 Cow asset Lane, Waltham, MA.
              2.      Fred Bryson, 552 Main Street, Waltham, MA.
              3.      David Pante10ne, 20 Temple Road, Waltham, MA.
              4.      Donna Pantelone, 20 Temple Road, Waltham, MA.
              5.      Pratap Oak, 96 Arcadia Avenue, Waltham, MA.
              6.      Pooja Oak, 96 Arcadia Avenue, Waltham, MA.

              Defendant reserves the right to supplement this list of witnesses before trial.

              D.      THE PANTALONE'S WITNESSES

              1.      David Pantalone, 20 Temple Road, Waltham, MA.
              2.      Donna Pantalone, 20 Temple Road, Waltham, MA.
              3.      Walter E. Ohnemus, 32 Cowasset Lane, Waltham, MA.
              4.      Ralph J. Bibbo, Professional Land Surveyor, 10 Hammer Street, Waltham, MA.

              Defendants reserve the right to supplement this list of witnesses before triaL

        VI.   EXPERTS

              None designated yet.

               Defendant City of Waltham Zoning Board of Appeals reserves the right to call an expert
               witness if necessary based on the evidence presented by Plaintiffs at trial.




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,   "




         VII.       ESTIMATED LENGTH OF TRIAL

                    3-4 half-days.

         VIII. SETTLEMENT

                 On December 21, 2004, the plaintiff sent Ohnemus a demand letter pursuant to General
         Laws Chapter 93A, Section 9 concerning his breach of contract claim. On January 19,2005,
         Ohnemus responded to the demand letter, but did not make any offer of settlement. To date,
         there have been no offers of settlement.

                                                           Respectfully submitted,

         PRATAPOAK,
         By his attorneys,
                                                                       WALTERE.OHNEMUS,. . s:;(
                                                                       By its atto,                       1'~
                                                                                                            )'-"
         Arth P. Kreiger, BBO 79870                                    Jo
         Elizabeth M. Pyle, BBO #647425                                131 Braver Street
         ANDERSON & KREIGER LLP                                        Fi~stmoor
         43 Thorndike Street                                           Wanham, MA 02452
         Cambridge, MA 02141                                           (781) 647-9700
         (617) 252-6575

         ZONING BOARD OF APPEALS of the                                DAVID and DONNA PANTALONE,
         CITY OF WALTHAM,
         By its attorney,                                              B       Q or attorney,
                                                                                    1     6f/\f-/1
         Michelle L. Le ed, BBO                                        PHIlip .
         City of Waltham Law Department                                15 Ch c treet
         119 School Street                                             Waltham, MA 02452
         Waltham, MA 02451                                             (781) 899-4422
         (781) 314-3330

          Dated: April 19, 2006
                                                           CERTIFICATE OF SERVICE
                  I certify that I served this Memorandum on all parties by hand delivery to their counsel of record on this 19th day
          of April 2006.                                                          ?         --r.     Ai' -/
                                                                                          _~         Ivr 'L~
                                                                                 Eliz   th M. Pyle         ~
        Oaklzonlp/joint-pre-trial-memo.doc




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