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TOWN COUNSEL
The firm of Kopelman and Paige, P.C., has completed its first full calendar year serving as Town Counsel for the Town of Belmont.
During 2005, Town Counsel was asked to render numerous legal opinions related to zoning and other land use matters, interpretations of Town By-Laws and Special Acts relating to Belmont, and we have reviewed contracts for various Town departments. Town Counsel has provided representation to the Police Chief and Fire Chief on numerous labor and employment matters, and we have assisted the Board of Assessors on several real estate tax exemption questions. We have also worked closely with the Board of Selectmen, the Warrant Committee and the Town Administrator on preparing for the annual town meeting and three special town meetings held in 2005.
Town Counsel has been working closely with the Board of Selectmen and Board of Health to ensure that the Purecoat North facility complies with the outstanding enforcement order issued by the Board of Health. In this regard, we filed a civil complaint in December 2005, in Middlesex Superior Court to enforce the most recent Board of Health order requiring Purecoat North to abate the nuisance created by noxious odors emanating from the facility. In January 2006, the Superior Court issued a preliminary injunction against Purecoat North ordering it to abate the nuisance within thirty (30) days. Town Counsel continues to work closely with the Board of Health to ensure compliance with the Board of Health abatement order and the preliminary injunction.
Town Counsel has continued to advise Town officials with regard to the Uplands development, and in particular, the recently filed comprehensive permit application for the site.
We extend our appreciation to the Board of Selectmen for their confidence in appointing this firm as Town Counsel, and appreciate the assistance and cooperation on all matters from the Board of Selectmen, Town Administrator, department heads, boards, committees and other Town personnel. We look forward to working with the members of the Town Government in the future.
Respectfully submitted,
John W. Giorgio, Esq. for the Firm of Kopelman and Paige, P.C.
Status Report on Pending Litigation Matters Pending with Town Counsel
Arbella v. Town of Belmont: The plaintiff seeks recovery against the Town in subrogation for $2,868.19 paid to its insured for property damage allegedly caused by a fallen public shade tree. The Town has responded to the complaint and has served interrogatories and requests for production of documents to the plaintiff seeking information and documentation relating to its liability and damage claim.
Belmont Board of Health v. Hakioglu: This is an action to compel the defendant's compliance with a condemnation order concerning premises at located at 166 Concord Avenue. The Board of Health obtained a preliminary injunction on August 9, 2005, ordering the defendant to comply. He failed to do so and the Board of Health then filed a complaint for contempt on September 13, 2005. A conference was held on October 26, 2005 and the contempt trial was scheduled for January 31, 2006. Recently, however, the premises was destroyed by a fire, and, tragically, the defendant was found dead in the house.
Belmont Board of Health v. Purecoat North, Inc.: This is an action to enforce an October 18, 2005 order of the Board of Health requiring the defendant to abate the emission of nuisance odors from its facility located at 39 Hittinger Street. A preliminary injunction hearing was held on January 3, 2006, and in a decision issued on January 11, 2006, the Superior Court issued a preliminary injunction ordering the defendant to abate the nuisance within thirty (30) days. The defendant has filed a counterclaim asserting that the odors in the neighborhood are emanating from property owned by the Town adjacent to the facility.
Forster v. Town of Belmont: This is an action brought by the plaintiff to recover an alleged overcharge for sewer and water charges due to a faulty water meter. A status conference was held on January 23, 2006.
Cases Closed In 2005
American Retirement Corporation v. Belmont Planning, American Retirement Corporation v. Belmont Zoning Board of Appeals: This matter involved two consolidated appeals by American Retirement Corporation, one from the Planning Board’s decision conditioning the site plan approval on compliance with the Affordable Housing Requirement of Section 6A.4 of the Zoning Bylaw, and the other from the Zoning Board of Appeals’ decision to uphold the Building Inspector’s denial of a building permit for a portion of a 482-unit continuing care retirement community project. These cases were handled by special counsel, but Town Counsel was asked to file an appearance as well. In a decision dated January 19, 2005, the Land Court denied the Planning Board and Zoning Board of Appeals’ motion for judgment on the pleadings
and granted the plaintiff’s motion for judgment on the pleadings, remanding the site plan decision to the Planning Board for amendment, remanding the Zoning Board of Appeals’ decision with instructions that a building permit be issued for a new decision authorizing the issuance of a building permit.
Healthy Pet Corporation v. Belmont Board of Selectmen: This was a complaint in the nature of certiorari to correct alleged errors in proceedings by the Board of Selectmen in issuing a kennel license to plaintiff. Specifically, the plaintiff sought to challenge certain conditions of its 2004 kennel license. The license, however, expired on December 31, 2004. This matter was dismissed by a stipulation filed on April 11, 2005.
Healthy Pet Corporation v. Town of Belmont: This was a complaint in seven counts alleging violations of plaintiff’s rights under c.40A, section 6, the U.S. Constitution, and the Massachusetts Declaration of Rights (due process and equal protection), and seeking to enjoin enforcement of the Town’s Kennel Bylaw. This matter was consolidated with Case No. 04-827, Healthy Pet v. Belmont Board of Selectmen above. This matter was dismissed by a stipulation filed on April 11, 2005.
In the Matter of O’Neill – Properties Located on Frontage Road and Acorn Park Drive: This matter was an appeal by the Conservation Commission from the Superseding Order of Conditions that was issued on September 30, 2004, by the Department of Environmental Protection (“DEP”), concerning the proposed construction of a four-story, 245,000-square foot office/research and development building and multi-level parking garage at Frontage Road and Acorn Park Drive. The Commission had previously issued a Denial Order of Conditions for the project. The parties agreed to explore possible options for settlement before the case was formally referred to the Division of Administrative Law Appeals ("DALA"). After further negotiations, the parties concluded that a settlement could not be reached, and
the case was referred for a hearing. On April 29, 2005, the Commission withdrew its appeal. The citizens' group also withdrew its appeal and the matter is closed.
Schipani v. Town of Belmont: This was a matter brought by the plaintiff claiming damages due to an inaccurate water meter at his property located at 36-38 Clyde Street, which resulted in excessive water fees. The plaintiff voluntarily dismissed this action in November 2005.
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