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Communication Result Report ( Jun,28. 2012 8:27AM)
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Date/Time: Jun,28. 2012 8:25AM
File Page
No. Mode Destination Pg (s) Result Not Sent
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5707 Memory TX 819786828108 P. 2 OK
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Reasonfor
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G�s
Deems Maura
From;
Bme.Ty Gerald
sent:
Wednesday, June 13, 20123:18 PM
To:
Deems, Meum
Subject.
FW: Emma Family Trust Lease
Attachments:
Eramo Famny Trust Leased= �,�� �Ol�f
From; DEBDRAB PICARD [maltto•otacdcbIDhdhsfl coral
Sew. Wednesday, June 13, 2012 3:10 PM
To: Brown, Gerald; Stacey B]mK; John Burke; Scod Follansbee; tanauenabooauenlaw mm
Subject: Eramo Faintly Trust Lease
2)eboFvt1v pi.('.cw-&
E & F Builders, Inc
Old Center Realty Corp.
P.O. Box 398
37 Walker Road
North Andover, MA 01845
Office 978 693-1490
Fax 978 685-7362
Cell 978 852-0553
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Deems. Maura
From: Brown, Gerald
Sent: Wednesday, June 13, 2012 3:18 PM
To: Deems, Maura
Subject: FW: Eramo Family Trust Lease
Attachments: Eramo Family Trust Lease.docx
N
�01111E CDPV
From: DEBORAH PICARD jmailto:ocrcdeW0otmail.com],
Sent: Wednesday, June 13, 2012 3:10 PM
To: Brown, Gerald; Stacey Birch; John Burke; Scott Follansbee; tcloauen(abgoguenlaw.com
Subject: Eramo Family Trust Lease
E & F Builders, Inc
Old Center Realty Corp.
P.O. Box 398
37 Walker Road
North Andover, MA 01845
Office 978 683-1490
Fax 978 685-7362
Cell 978 852-0553
Please note the Massachusetts Secretary of State's office has determined that most emails to and from municipal offices and officials are public records. For more
information please refer to: htto://www.sec.state.ma.us/ore/preidx.htm.
Please consider the environment before printing this email.
1
1
June 1312012
Gerald Brown
Zoning Enforcement Officer
Town of North Andover
Osgood Street,
North Andover, MA 01845
VIA E-mail
Dear Mr. Brown,
Pursuant to our phone conversation today, I am sending
per your request, this letter to clarify the terms of
the lease between, Eramo Family Trust and Stacey
Hughes- Birch, dated May 17, 2011.
Under paragraph 1. Term B. the Tenant has exercised
her renewal option by giving written notice to me as
Trustee of the Eramo Family Trust. Furthermore I
expect this lease to continue indefinitely until one
party or the other gives a 15 day notice to terminate.
Sincerely,
Deborah Picard
Trustee, Eramo Family Trust
Deems, Maura
From: Deems, Maura
Sent: Wednesday, June 13, 2012 1:29 PM
To: Istaceybirch1960@gmail.com'
Cc: Brown, Gerald
Subject: Lease Agreement
Attachments: 20120613130257768. pdf
Dear Ms. Birch,
We received your email today June 13, 2012 reflecting your request to renew your lease
with Deborah Picard.
As per our phone conversation also on June 13, 2012 I am restating the need to see an
actual lease signed by both you, Stacy Birch and owner Deborah Picard. We received a copy of
your lease from Thomas Paul Gorman Esq. dated May 24, 2012, but that lease expired on June 1,
2012. Please refer to attached copy of said lease.
Thank you,
Maura Deems
Building Department Assistant
-----Original Message -----
From: noreply(@townofnorthandover.com jmailto:noreply(@townofnorthandover.coml
Sent: Wednesday, June 13, 2012 1:03 PM
To: Deems, Maura
Subject:
This E-mail was sent from "RNPOA428C" (Aficio MP C5000).
Scan Date: 06.13.2012 13:02:57 (-0400)
Queries to: noreply(@townofnorthandover.com
Please note the Massachusetts Secretary of State's office has determined that most emails to
and from municipal offices and officials are public records. For more information please
refer to: http: /www.sec.state.ma.us/pre/oreidx.htm.
Please consider the environment before printing this email.
1
Deems, Maura
From: staceybirch1960@gmail.com
Sent: Wednesday, June 13, 2012 11:34 AM
To: Deems, Maura
Subject: Fw: Lease Agreement
Sent via B1ackBerry by AT&T
-----Original Message -----
From: staceybirch1960(@Rmail.com
Date: Tue, 12 Jun 2012 19:59:45
To: <ocrcdeb(hotmail.com>
Reply -To: staceybirchl960(@gmail.com
Subject: Lease Agreement
May 1, 2012
Deborah Picard as Trustee of Eramus Family Trust ("Landlord")
79 Lacy Street
North Andover ,MA 01845
As stated in paragraph B of page one of our original lease agreement I would like to renew
the same agreement for (1) year term to beging on June 1,2012 and end on June 1,2013.
Thank you
Stacey A Hughes -Birch
Sent via B1ackBerry by AT&T
Please note the Massachusetts Secretary of State's office has determined that most emails to
and from municipal offices and officials are public records. For more information please
refer to: http://www.sec.state.ma.us/pre/preidx.htm.
Please consider the environment before printing this email.
1
05-24-12 11:39AM FROM-SHERIN & LODGEN
FACSIMILE MESSAGE DATE:
I COT
+1-6176462222 T-190 P.001/006 F-271
SHERIN z'
LODGEN
May 24, 20X2
RECIPIENT COMPANY FAX NO. PHONE NO.
Gerald Brown Town of North Andover 978.688.9542 978.688.9545
Inspector of Buildings
NUMBER OF PAGES INCLUDING COVER SiiEIET: 6
FROM: Thomas Paul Gorman, Esq. ' CLIENT/MATTER: 24759.8
RE: Stacey Hughes -Birch
MESSAGE:
Per your request, I have attached a copy of the Massachusetts Commercial Lease Agreement regarding
the Stacey Hughes -Birch matter.
If all pages are not received,
please call Michelle at 617.646.2125
This information in this transmission is privileged, confidential and intended only for the use of the individual or entity named above. If you are not
the intended recipient, you aro hereby notified that any disclosure, distribution or the taking of any action in reliance on the contents of this facsimile
transmission is strictly prohibited. If you have received this communication in error, please notify Shcrin and Lodgcn LLP immediately by telephone
collect and return the original message to us at the address shown above via the U.S. Postal Service. We will reimburse you for required postage.
telephone calls or any other expenses you may incur. Thank you.
Sherin and lodgon LLP =, -101 Federal Street Boston, MA 02110 a t 617.646.7.000 u f 617.646.2222 --.. www.sherin.com
00419802.DOCX/
05-24-12 11:39AM FROM-SHERIN & LODGEN +1-6176462222 T-190 P.002/006 F-271
Massachusetts Commercial Lease Agreement
This Commercial Lease Agreement ("Lease") is made and effective
May 17, 2011 by and between
Deborah Picard ("Landlord"), as Trustee of Eramo Family Trust, a copy of which
is filed in the Registry of Deeds for Essex County in Book 4073, Page 296. and
Stacey Hughes -Birch, Devisee under the will of Barbara Tighe ("Tenant"),
Landlord is the owner of land and improvements commonly known and
numbered as
79 Lacy Street, North Andover, Massachusetts, and more specifically described
on a Plan of Land of North Andover SUBDIVIDED by E & F Builders, Inc. and
Barbara Tighe dated March 15, 1989 and recorded in the Essex County Registry
of Deeds. The parcel is described on said Plan as Lot 1, 5 Acres.
Landlord makes available for lease a two (2) acre portion of the six (S) acres,
which abuts the tenants land.
Landlord desires to lease the Leased Premises to Tenant, and Tenant desires to
lease the Leased Premises from Landlord for the term, at the rental and upon the
covenants, conditions and provisions herein set forth.
THEREFORE, in consideration of the mutual promises herein, contained and
other good and valuable consideration, it Is agreed:
1. Term.
A, Landlord hereby leases the Leased Premises to Tenant, and Tenant hereby
leases the same from Landlord, for an "Initial Term" beginning May 17, 2011 and
ending June 1, 2012.
13, Tenant may renew the Lease from year to year for a subsequent one (1) year
term. Tenant shall exercise such renewal option, if at all, by giving written notice
to Landlord not less than thirty (30) days prior to the expiration of the Initial Term.
The renewal term shall be at the rental set forth below and otherwise upon the
same covenants, conditions and provisions as provided in this Lease. This
Lease, however, can be terminated at any time by either party giving written
notice of Termination to the other fifteen (15) days from the date the letter is
delivered to the other party.
05-24-12 11:40AM FROM-SHERIN & LODGEN +1-6176462222 T-190 P.003/006 F-271
f / LCJ11 14 . i u . r
f• ,A
2. Rental.
A. Tenant shall pay to landlord during the Initial Term rental of One ($1.00)
Dollar and other good and valuable consideration the receipt and adequacy of
which is hereby acknowledged, payable in installments of One ($1.00) Dollar
annually. Each payment shall be due in advance on the first day of January.
B. The rental for any renewal lease term, if created as permitted under this
Leese, shall be One ($1.00) Dollar annual rent.
3. Use
Any purpose other than for the purpose of using the two (2) acres in order to be
in compliance with the Town of North Andover's zoning and other rules and
regulations that relate to the keeping and maintaining of farm animals therein in
conjunction with the abutting 3.3 acre parcel. The Tenant, however, is not
permitted to store or stockpile animal waste on the property. Tenant furthermore
may not out trees on the two (2) acre lot.
4. Sublease and Assignment.
Tenant shall not have the right to assign this Lease to a corporation with which
Tenant may merge or consolidate, to any subsidiary of Tenant, to any
corporation under common control with Tenant, or to a purchaser of substantially
all of Tenant's assets. Except as set forth above, Tenant shall not sublease all or
any part of the Leased Premises, or assign this Lease in whole or in part to any
person or entity.
5. Cntrv.
Landlord shall have the right to enter upon the Leased Premises any time and for
any purpose without prior notice.
6, Default.
If default shall at any time be made by Tenant in the payment of rent when due to
Landlord as herein provided, and if said default shall continue for fifteen (15)
days after written notice thereof shall have been given to Tenant by Landlord, or
if default shall be made in any of the other covenants or conditions to be kept,
observed and performed by Tenant, and such default shall continue for thirty (30) .
days after notice thereof in writing to Tenant by Landlord without correction
thereof then having been commenced and thereafter diligently prosecuted,
Landlord may declare the term of this Lease ended and terminated by giving
Tenant written notice of such intention, and if possession of the Leased Premises
05-24-12 11:40AM FROM-SHERIN $ LODGEN +1-6176462222 T-190 P•004/006 F-271
i
is not surrendered, Landlord may reenter said premises, Landlord shall have, in
addition to the remedy above provided, any other right or remedy available to
Landlord on account of any Tenant default,. either in law or equity, Landlord shall
use reasonable efforts to mitigate its damages.
7. Quiet PossQssion_
Landlord covenants and warrants that upon performance by Tenant of its
obligations hereunder, Landlord will keep and maintain Tenant in exclusive,
quiet, peaceable and undisturbed and uninterrupted possession of the Leased
Premises during the term of this Lease.
a. Subordination.
Tenant accepts this Lease subject and subordinate to any mortgage, deed of
trust or other lien presently existing or hereafter arising upon the Leased
Premises, or upon the Building and to any renewals, refinancing and extensions
thereof, but Tenant agrees that any such mortgagee shall have the right at any
time to subordinate such mortgage, deed of trust or other lien to this Lease on
such terms and subject to such conditions as such mortgagee may deem
appropriate in its discretion. Landlord is hereby irrevocably vested with full power
and authority to subordinate this Lease to any mortgage, deed of trust or other
lien now existing or hereafter placed upon the Leased Premises of the Building,
and Tenant agrees upon demand to execute such further instruments
subordinating this Lease or attorning to the holder of any such liens as Landlord
may request. In the event that Tenant should fail to execute any instrument of
subordination herein require d to be executed by Tenant promptly as requested,
Tenant hereby irrevocably constitutes Landlord as its attorney-in-fact to execute
such instrument in Tenant's name, place and stead, It being agreed that such
power is one coupled with an interest. Tenant agrees that it will from time to time
upon request by Landlord execute and deliver to such persons as Landlord shall
request a statement in recordable form certifying that this Lease is unmodified
and in full force and effect (or if there have been modifications, that the same is
in full force and effect as so modified), stating the dates to which rent and other
charges payable under this Lease have been paid, stating that Landlord Is not in
default hereunder (or if Tenant alleges a default stating the nature of such
alleged default) and further stating such other matters as Landlord shall
reasonably require.
9. Notice.
05-24-12 11:40AM FROM-SHERIN & LODGEN +1-6176462222 T-190 P-005/006 F-271
Any notice required Or permitted under this Lease shall be deemed sufficiently
given or served if sent by United States certified mail, return receipt requested,
addressed as follows:
If to Landlord to,
Deborah Picard ("Landlord"), as Trustee of Eramus Family Trust,
79 Lacy Street, North Andover, MA 01845
If to Tenant to:
Stacey Hughes Birch
95 Lacy Street, North Andover, MA 01845
Landlord and Tenant shall each have the right from time to time to change the
place notice is to be given under this paragraph by written notice thereof to the
other party.
10, Indemnification
The Tenant shall indemnify and save harmless the Landlord from any damage
caused to the premises by Stacey Hughes -Birch, her agents, family, friends or
guests, which shall be secured by a mortgage.
11. Final A rearnent.
This Agreement terminates and supersedes all prior understandings or
agreements on the subject matter hereof. This Agreement may be modified only
by a further writing that is duly executed by both parties.
12, Gov whine L -
05-24-12 11:41 AM FROM-SHERIN & LODGEN +1-6176462222 T-190 P.006/006 F-271
This Agreement shall be governed, construed and interpreted by, through and
under the Laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day
and year first above written.
TOWN OF FORTH ANDOVER
Building Department
1600 Osgood Street
Building 2- Suite 2-36 Building Dept
North Andover MA 01845
Tel: (978) 688-9545
Fax (978) 688-9542
��,MV f
1 l poRry
��SSA TED
HUSE{ �y
COMPLAINT FOR INVESTIGATION
DATE:Jr I ZN I I Z; TEL #: (11+Z-6 5 T7D
NAME OF COMPLAIN'TANT: �j,(� 1�12C•�.
anDxsss.,
COMPLAINT TYPE:
Electrical:
Plumbing:
Gas:
Building:
Property Owner:
Address:
COthe :i
40
",,��)^^t5 ,, 6 � � �. �S �,sf�_.1'. 5clta2e�1 L•�r--C.����OCx
Signed:
�.�5 Cati2S S
Cto�nplaintForm -(Revised 6.2007
,it v"A L Ck ` U v
fH E R 1 N
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I horrias Paul Gorman
E 1?.646.21 18
tr)gorr,,an�i sher;n.CC) r; t
%-1159.8
Fctbruary 15 , 2012
PRUVII-E GTED A�'.) CONFID>=-TIAL
SETTLEN,'ELI COti11-NIL1IC.'_21,110ti
ihcouore H. Gogu;,n, Jr., Esquire
P.O. Box 390918
Cambridge, MA 02139
Re: Gerald BYotivn, Inspector of Buildings v. Stacey Hughes-Bir:.h
(4461123-113fG)
Dear Ted:
This is to confirm our discussion of today conceming the plaintiff Gerald Brown,
Inspector of Building's proposal to dismiss the pending Land Court action against the defendant
Stacey Hughes -Birch, in view of the Lease entered into by her as shown in the document
produced during the discovery phase of this action.
As I mentioned, the Building Inspector proposes to dismiss the case without prejudice,
and without costs. In the future, the Building Inspector would want to confirm that the Lease
remains in effect if any questions arise concerning compliance with By -Law § 4.121.6. I
understand from our discussion, as you indicated, that Mrs. Birch would provide evidence of the
c:)ntinuation of the Lease upon reasonable request.
if the foregoing does not conform to your understanding of our discussion; please let me
kno�,,v as soon as possible. Otherwise. I will prepare the stipulation for our execution. and filing.
I look forwird to searing from you.
Sincerely.
Thomas Paul Gonnan
TPG:mjm
00"'0;922).DOC/
SHERIN0
LODGEN
Thomas Paul Gorman
Direct Dial: 617.646.2118
e-mail: tpgorman@sherin.com
24759.8
February 2, 2012
CONFIDENTIAL AND PRIVILEGED
ATTORNEY-CLIENT COMMUNICATION
Andrew W. Maylor, Town Manager
Town of North Andover
120 Main Street
North Andover, MA 01845
Re: Gerald Brown, Inspector of Buildings v. Stacey Hughes -Birch:
Land Court Case No. 11 MISC 446023 HMG
Dear Mr. Maylor:
As Tom Urbelis requested, this is a brief summary of the status of this claim, with my
recommendation concerning its discontinuance.
The Town of North Andover, specifically, Gerald Brown, as the Building Inspector,
brought an action in the Land Court against Stacey Hughes -Birch in connection with her
property consisting of a 3.31 acre lot, known as Lot 21A,,at 95 Lacy Street, North Andover.
Ms. Hughes -Birch's lot was formerly part of a larger parcel, known as Whippoorwill
Farm and which was used for, among other things, boarding horses and dogs and as a home to a
variety of farm animals including horses, ponies, chickens and a pig, since approximately the
1960's. Pursuant to other litigation involved the land, Hughes -Birch was granted a fee title
interest in the Property she now owns, carved out from the approximate eleven (11) acre Farm
Parcel.
North Andover Bylaw § 4.121.6.a permitted uses in the Residence 1 District, where the
Property is located, specifically including agriculture, horticulture, floriculture, viticulture and
silvaculture uses. On any lot of at least three acres, however, the keeping of a total of not more
than three of any animals or birds in addition to household pets of a family living on such lot is
allowed, but not the keeping of animals, birds .or pets of persons not resident on the lot.
On July 22, 2010, Diane R. McGarvey, Stephanie O'Mahony and John O'Mahony
submitted a written complaint to Brown concerning the number of animals maintained by
Hughes -Birch on the Property. In response to their complaint, on July 30, 2010, the Building
Inspector inspected the Property and determined that there were more than three horses, as well
as a rooster, on the Property.
00402329.DOC/
Sherin and Lodgen LLP 0 101 Federal Street Boston, MA 02110 a t 617.646.2000 a f 617.646.2222 0 www.sherin.com
a
SHERINQ
LODGEN
Andrew W. Maylor
February 2, 2012
Page 2
On August 17, 2010, Mr. Brown sent written notice to Hughes -Birch of violation
regarding the keeping of a number of non -household pets in excess of the number permitted by
Bylaw § 4.121.6.a at the Property. Although such use was lawfully in existence on the Farm
Parcel, because the Property is only 3.31 acres, and was more recently created from the Farm
Parcel pursuant to court order, the Violation Notice alleged that the Property is now subject to
the Bylaw's use regulations. The Violation Notice therefore stated that the keeping of eight (8)
horses on the Property violated Bylaw § 4.121.6.a. We brought the Land Court action after Ms.
Hughes -Birch did not cure the violation.
More recently, however, Hughes -Birch has responded to discovery requests that she has
entered into a Lease with a neighboring property owner, and now has sufficient acreage to meet
the bylaw requirement keeping the number of animals that she maintains at the property. I have
had discussions with Mr. Brown, who agrees that given the Lease of the additional property, he
would not consider Ms. Hughes -Birch to be in violation.
For that reason, given his interpretation, and without a firm basis to say otherwise, I
believe it would make sense to discontinue the litigation, by way of a stipulation of dismissal
(perhaps without prejudice), entered into between the Town and Ms. Hughes Birch. If her
situation changes, or other violations occur, the Town would still be able to enforce its Bylaws
against her.
I look forward to discussing the status with you and the Board on Monday, February 6,
2012, but wanted to give you this overview ahead of time, for your convenience. If you have
any questions, please don't hesitate to contact me.
Very truly yours,
Thomas Paul Gorman
TPG/mjm
cc: Gerald Brown, Inspector of Buildings
Thomas J. Urbelis, Esq., North Andover Town Counsel
Robert J. Muldoon, Jr., Esq.
00402329.DOC/
with such use, there is to be kept no stock in trade, commodities or products which occupy
space beyond these limits;
e. There will be no display of goods or wares visible from the street;
f. The building or premises occupied shall not be rendered objectionable or detrimental to the
residential character of the neighborhood due to the exterior appearance, omission of odor, gas,
smoke, dust, noise, disturbance, or in any other way become objectionable or detrimental to
any residential use within the neighborhood;
g. Any such building shall include no features of design not customarily in buildings for
residential use.
5. Real estate signs not to exceed twenty-four (24) inches by thirty-six (36) inches in size which shall
advertise only the rental, lease, sale of the premises upon which they are placed.
6. Agriculture, horticulture, floriculture, viticulture or silvaculture. (1986/100)
a. On any lot of at least three (3) acres, the keeping of a total of not more than three (3) of any
kind or assortment of animals or birds in addition to the household pets of a family living on
such lot, and for each additional acre of lot size to five (5), the keeping of one additional
animal or bird but not the keeping of animals, birds, or pets of persons not resident on such lot.
(1993/36)
K On any lot of at least five (5) acres, the keeping of any number of animals or birds regardless,
of ownership and th-e-operation of equestrian riding academies, stables, stud farms; and poultry
batteries.
c. The sale of products raised as a result of the above uses on the subject land. (1986/100)
d. The sale of products of agriculture, horticulture, floriculture, viticulture or silvaculture as well
as accessory or customary items, by any person who is primarily engaged in ay of the above
activities. The operation must be on at least ten (10) contiguous acres used primarily for any
of these activities. (1986/100)
7. Swimming pools in excess of two (2) feet deep shall be considered a structure and permitted
provided they are enclosed by a suitable wall or fence at least four (4) feet in height to be
determined by the Building Inspector to prevent the entrance of persons other than those residing
at the pool location. Pools shall have a minimum ten (10) foot setback from side and rear lot lines
and be located no nearer the street than the building line of the dwelling, except by Special Permit.
8. Museums.
9. a. Public and private non-profit educational facilities. (1986/17)
b. Private for profit educational facilities by Special Permit. (1986/17)
10. Public building and public service corporations (Special Permit Required), but not including
public works garages.
11. Golf Course.
12. Swimming and/or tennis clubs shall be permitted with a Special Permit.
13. Cemetery.
14. Nursing and convalescent home- see dimensional requirements of Table 2 (Special Permit
Required).
15. Municipal recreational areas.
16. Any accessory use customarily incident to any of the above permitted uses, provided that such
accessory use shall not be injurious, noxious, or offensive to the neighborhood.
17. Family Suite — a separate dwelling unit within or attached to a dwelling for a member of a
household is allowable by Special Permit provided:
a. The dwelling unit is not occupied by anyone except brothers, sisters, maternal and paternal
parents and grandparents, or children of the residing owners of the dwelling unit;
b. That the premises are inspected annually by the Building Inspector for conformance to this
section of the Bylaw;
29
Town of North Andover
Building Department
Thomas Paul Gorman Esq.
Sherin and Lodgen LLP
101 Federal Street
Boston,MA 02110
Dear Thomas Paul Gorman Esq.,
March 22, 2011
Enclosed you will find Material that was hand delivered from Stacy Birch today.
Gerald Brown
Building Commissioner
gbrown@townofnorthandover.com
1.600 Osgood Street
Bldg 20 suite 2-36
North Andover, MA 01845
978.688.9542
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William N. Hurley
ATTORNEY AT LAW
287 Appleton Street
Suite 208
Lowell, Massachusetts 01852
Telephone: (978) 452-4925
Facsimile: (978) 452-5726
Mark Rees, Town Manager
Town of North Andover
120 Main Street
North Andover, Massachusetts 01845
Garrett Boles, Assessor
Town of North Andover
120 Main Street
North Andover, Massachusetts 01845
RE: 95 Lacy Street
Dear Sir:
December 30, 2010
OFFICE OF TOWN MANAGER
Please accept this as notice pursuant to the requirement of M.G.L.A. c 61A that Joseph
Landry, as trustee of the Residuary Education Trust under the will of Barbara Tighe, by decree
of the Essex Probate and Family Court, Docket No. 02P2876, which trust is the residual
beneficiary under the will of the Late Barbara Tighe and succeeded to title to real estate owned
by her located at 95 Lacy Street, has contracted to sell and transfer lots 3A, 4A and 5B on a pIan
of land entitled "Plan of Land in North Andover, Mass. Prepared for the estate of Barbara Tighe,
95 Lacy Street, Scale 1" = 40; Date: February 21, 2006," recorded at Essex North Registry as
Plan Number 15842.
The Buyer/Transferee under this transaction has covenapted with the Seller that the__ -�
Buyer/Transferee will continue the agricultural use of the land transferred and will file all '
affidavits and applications necess to reserve the a
� �Y p gricultural assessment of the property after �
closing of the sale.
However, by reason of this transfer, common ownership and/or title of these lots 3A, 4A
and 5B, will be severed from the ownership and title to Lot 2A as shown on said plan as a matter
of law. Upon the conveyance of Lots 3A, 4A and 5B, Lot 2A, as a parcel under separate
ownership, will no longer. qualify for agricultural assessment by reason of the fact that it consists
of less than 5 acres.
�y
V
As a result, Joseph Landry, as trustee, hereby notifies the town that, while the conveyance
of Lots 3A, 4A and 5B is not a conversion event as to those lots under § 14 of the statute because
of the continuing agricultural use by the transferee, the conveyance is a conversion event under
§ 17 of the statute as to Lot 2A by reason of Lot 2A, by itself, containing insufficient acreage to
comply with the requirement of §4 of the statute.
Please notify me at the above address and Attorney Marshall L. Field, administrator of the
Estate of Barbara Tighe, whose office is at 9 Central Street, Lowell, MA 01852, concerning any
notices, assessments and correspondence resulting from or concerning the facts set forth above.
Please also be aware that any notice of the Town of North Andover intending to invoke
its option to purchase Lot 2A as prescribed by § 14 of the statute should also be given to Stacey
Hughes -Birch at 95 Lacy Street, North Andover, Massachusetts, as she has a claim of title to Lot
2A under the will of Barbara Tighe.
Thank you for your assistance.
G 'William
Via certified mail
Receipt # 7009 3410 0002 0926 6270 - Mark Rees
Receipt # 7009 3410 0002 0926 6355 - Garrett Boles
cc: Marshall L. Field
Joseph R. Landry
ANC rH r 1vlclY 1 J I V
)WN OF NORTH ANDOVER
O. BOX 124
ORTH ANDOVER, MA 01845
1-F 8:30 - 4:30
AX 688-9550/ASSR 688-9566
ax Map No: 210-105.13-0170-0000.0
ocation : LACY STREET
eed/Legal : Book 2940 Page 92
.and Area : 4.00 Acres
TIGHE, BARBARA
95 LACY STREET
NORTH ANDOVER, MA
01845
Detach Here
FISCAL YEAR 2009 REAL ESTATE TAX BILL VILL NUIVIDGrt 17345
OFFICE OF THE COLLECTOR OF TAXES
THE COMMONWEALTH OF MASSACHUSETTS 1111111 IIIII (1111 IIIII IIIII VIII VIII VIII 419419678l
TOWN OF NORTH ANDOVER
Preliminary Tax Unpaid
Message
1st Installment $161.45
Please use the enclosed lockbox envelope to expedite your
$161.45
payment This will assist us in processing your payment more
$0.00
efficiently. The Tax Collector's office is located at 120 Main
$0.00
Street, North Andover.
1ST PAYMENT REMITTANCE VOUCHER
Payment due by August 01, 2008
Amount Now Due: $ 161.45
Your Preliminary Tax for the Fiscal Yea2009 beginning July01, 2008 and ending June
30, 2009 on the Real Estate tax described is as follows
04184196782009000000000000000000000100017345000000016145010
Return top Voucher with Payment
Tax Map No: 210-105.D-0170-0000.0
Property Location : LACY STREET
Deed/Legal:
Land Area: 4.00 Acres
Preliminary Tax Description
Tax: $ 313.50
Cpa : $ 9.40
Total: $ 322.90
CONTACT TREASURER IMMEDIATELY TO ADDRESS OUTSTANDING BALANCE.
Interest at the rate of 14% per annum will accrue on overdue
payments from the due date until payment is made
MAKE PAYMENTS TO
TOWN OF NORTH ANDOVER
P.O. BOX 124
NORTH ANDOVER. MA 01845
M -F 8:30 - 4:30
TAX 688-9550/ASSR 688-9566
Tax Map No: 210-105.D-0170-0000.0
Location: LACY STREET
Deed/Legal : Book 2940 Page 92
Land Area : 4.00 Acres
TIGHE, BARBARA
95 LACY STREET
NORTH ANDOVER, MA
01845
FISCAL YEAR 2009
REAL ESTATE TAX
Detach Here
Preliminary Tax: $ 322.90
1st Installment : $ 161.45
Payment due by August 01, 2008
2nd Installment: $ 161.45
Payment due by November03, 2008
Amount Now Due: $ 161.45
FISCAL YEAR 2009 REAL ESTATE TAX BILL
OFFICE OF THE COLLECTOR OF TAXES
THE COMMONWEALTH OF MASSACHUSETTS
TOWN OF NORTH ANDOVER
BILL NUMBER 17345
1111111 IIIII IIIII IIIII IIIII IIIII IIIII IIIII
11111 11119678
I
Preliminary Tax Unpaid
Message
1st Installment $161.45
Please use the enclosed lockbox envelope to expedite your
$161.45
payment, This will assist us in processing your payment more
$0.00
efficiently. The Tax Collector's office is located at120 Main
$0.00
Street, North Andover.
1ST PAYMENT RECEIPT VOUCHER
Payment due by August 0l, 2008
Amount Now Due: $ 161.45
Your Preliminary Tax for the Fiscal Yea2009 beginning 1uly01, 2008 and ending June
30, 2009 on the Real Estate tax described is as follows
-/000005051506 04184196?8200900000000000000000000010Q017345000000016145010
'OWN OF NORTH ANDOVER
1.0. BOX 124
4ORTH ANDOVER, MA 01845
A -F 8:30 - 4:30
rAX 688-9550/ASSR 688-9566
FISCAL YEAR 2009 REAL ESTATE TAX BILL
OFFICE OF THE COLLECTOR OF TAXES
THE COMMONWEALTH OF MASSACHUSETTS
TOWN OF NORTH ANDOVER
rax Map No: 210-105.D-0169-0000.0
Unpaid
ocation : LACY STREET
$3.56
)eed/Legal : Book 2940 Page 92
$3.54
:.and Area : 3.16 Acres
$0.00
1 \
$0.00
Preliminary Tax
Unpaid
Ist Installment
$3.56
Payment due by August 01, 2008
$3.54
2nd Installment : $
$0.00
1 \
$0.00
TIGHE, BARBARA (:�'< U -C \ U
95 LACY STREET`
NORTH ANDOVER, MA ' \03
01845
Detach Here
Message
BILL NUMBER 17344
I Illlll VIII VIII VIII VIII VIII VIII IIID
418419665
Please use the enclosed lockbox envelope to expedite your
payment This will assist us in processing your payment more
efficiently. The Tax Collector's office is located at120 Main
Street, North Andover.
IST PAYMENT REMITTANCE VOUCHER
Payment due by August 01, 2008
Amount Now Due: $ 3.56
Your Preliminary Tax for the Fiscal Yeae2009 beginning July0i, 2008 and ending June
30, 2009 on the Real Estate tax described is as follows
04184196652009000000000000000000000100017344000000000356018
Return top Voucher with Payment
Tax Map No: 210-105.D-0169-0000.0
Property Location : LACY STREET
Deed/Legal :
Land Area: 3.16 Acres
Preliminary Tax Description:
Tax : $ 6.89
Cpa : $ 0.21
Total: $ 7.10
CONTACT TREASURER IMMEDIATELY TO ADDRESS OUTSTANDING BALANCE.
Interest at the rate of 14% per annum will accrue on overdue
payments from the due date until payment is made.
MAKE PAYMENTS TO
TOWN OF NORTH ANDOVER
P.O. BOX 124
NORTH ANDOVER, MA 01845
M -F 8:30 - 4:30
TAX 688-9550/ASSR 688-9566
Tax Map No: 210-105.D-0169-0000.0
Location : LACY STREET
Deed/Legal : Book 2940 Page 92
Land Area : 3.16 Acres
TIGHE, BARBARA
95 LACY STREET
NORTH ANDOVER, MA
01845
Detach Here
FISCAL YEAR 2009
REAL ESTATE TAX
Preliminary Tax: $
7.10
1st Installment : $
3.56
Payment due by August 01, 2008
payment. This will assist us in processing your payment more
2nd Installment : $
3.54
Payment due by November 03, 2008
Street, North Andover.
Amount Now Due: $
3.56
FISCAL YEAR 2009 REAL ESTATE TAX BILL BILL NUMBER 17344
OFFICE OF THE COLLECTOR OF TAXES
THE COMMONWEALTH OF MASSACHUSETTS I IIIIII VIII (IIII (IIII VIII VIII (IIII VIII VIII I II IIII
TOWN OF NORTH ANDOVER
418419665
Preliminary Tax Unpaid
Message
I st Installment $3.56
Please use the enclosed lockbox envelope to expedite your
$3.54
payment. This will assist us in processing your payment more
$0.00
efficiently. The Tax Collector's office is located at 120 Main
$0.00
Street, North Andover.
1ST PAYMENT RECEIPT VOUCHER
Payment due by August 01, 2008
Amount Now Due: $ 3.56
Your Preliminary Tax for the Fiscal Year2009 beginning July01, 2008 and ending June
30, 2009 on the Real Estate tax described is as follows
"1'00000iO4/
505 0418419665200900000000000000000000010001?344000000000356018
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PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
PREV NEXT
TITLE IX TAXATION
PREV NEXT
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
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I
LSection 1
Land in agricultural use defined
Section 2
Land in horticultural use defined
Section 3
Land of five -acre minimum area actively devoted to agricultural or horticultural uses defined; gross!
–
sales and program payment standard
Section 4
I
Valuation of land in agricultural, etc. use; contiguous land; tax rate
Section 4A
Tax rate for land actively devoted to agricultural or horticultural use
Section 5
Contiguous land under one ownership within more than one city or town
I
Section 6
Annual determination of eligibility for valuation; application; form; certification
Section 7
i
Additional assessment; change in use in pre-tax year between October 1 and lune 30
Section 8
Timely filing of application in towns or cities with programs of revaluation not completed by
October 1 of pre-tax year j
Section 9
Allowance or disallowance of application for valuation; notice; liens
Section 10
Factors to be considered in valuing land
Section 11
--—
Farmland valuation advisory commission; expenditures
----------
---------Section
Section12
Sale of land or change of use; liability for conveyance tax; exemptions
Section 13
i .
Change of use; liability for roll -back taxes
Section 14
Sale for or conversion to residential or commercial use; notice of intent to city or town; option to
purchase; assignment of option
Section 15
Taxation of buildings and land occupied by dwelling
Section 16
Continuance of land valuation, assessment and taxation under this chapter dependent upon
qualifying use
Section 17
Separation of land to other use; liability for conveyance or roll -back taxes; continuing qualification
of remainder
Section 18
Special or betterment assessments; payment; interest
3/22/2011 10:10 AM
General Laws: CHAPTER 61A, Section 1
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Print
PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 1 Land in agricultural use defined
Section 1. Land shall be deemed to be in agricultural use when primarily and directly -used in raising animals;,
including, but not limited to, dairy cattle, beef cattle, poultry, sheep, swine, horses, ponies, mules, goats, bee's
and fur -bearing animals, for the purpose of selling such animals or a product derived from such animals in the
regular course of business; or when primarily and directly used in a related manner which is incidental thereto
and represents a customary and necessary use in raising such animals and preparing them or the products
derived therefrom for market.
1 of 1 3/22/2011 10:12 AM
General Laws: CHAPTER 61A, Section 3
PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
http://www.malegislature.gov/Laws/GeneralLaws/Partl/TitleDUChap..
&4 Print
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 3 Land of five -acre minimum area actively devoted to agricultural or horticultural uses defined;
gross sales and program payment standard
Section 3. Land not less than five acres in area shall be deemed to be actively devoted to agricultural or
horticultural uses when the gross sales of agricultural, horticultural or agricultural and horticultural products
resulting from such uses together with the amount, if any, payable under a soil conservation or pollution
abatement program of the federal government or the commonwealth total not less than five hundred dollars per
year or when the use of such land is clearly proven to be for the purpose of achieving an annual total of not less
than five hundred dollars from such gross sales and program payments within the normal product development
period as determined by the farmland valuation advisory commission established pursuant to section eleven of
this chapter. In cases where the land is more than five acres in area, the gross sales and program payment
standard above set forth shall be increased at the rate of five dollars per acre except in the case of woodland or
wetland for which such increase shall be at the rate of fifty cents per acre.
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&4 Print
PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 4 Valuation of land in agricultural, etc. use; contiguous land; tax rate
Section 4. For general property tax purposes, the value of land, not less than five acres in area, which is actively
devoted to agricultural, horticultural or agricultural and horticultural uses during the tax year in issue and has
been so devoted for at least the two immediately preceding tax years, shall, upon application of the owner of such
land and approval thereof, be that value which such land has for agricultural or horticultural purposes. For the
said tax purposes, land so devoted shall be deemed to include such contiguous land under the same ownership as
is not committed to residential, industrial or commercial use and which is covered by application submitted
pursuant to section six. Land shall be deemed contiguous if it is separated from other land under the same
ownership only by a public or private way or waterway.
Land under the same ownership shall be deemed contiguous if it is connected to other land under the same
ownership by an easement for water supply. All such land which is contiguous or is deemed contiguous for
purposes of this chapter shall not exceed in acreage one hundred per cent of the acreage which is actively
devoted to agricultural, horticultural or agricultural and horticultural uses.
The rate of tax applicable to such agricultural or horticultural land shall be the rate determined to be applicable to
class three, commercial property under chapter fifty-nine.
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General Laws: CHAPTER 61 A, Section 4A
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&4 Print
PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 4A Tax rate for land actively devoted to agricultural or horticultural use
Section 4A. In a city or town that accepts this section, the rate of tax applicable to land actively devoted to
agricultural, horticultural or agricultural and horticultural uses shall be the rate determined to be applicable to
class two, open space.
1 of 1 3/22/2011 10:17 AM
General Laws: CHAPTER 61A, Section 7
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&4 Print
PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 7 Additional assessment; change in use in pre-tax year between October 1 and June 30
Section 7. If a change in use of land actively devoted to agricultural, horticultural or agricultural and horticultural
use occurs between October first and June thirtieth of the year preceding the tax year, the board of assessors
shall disallow or nullify the application filed under authority of section six, and, after examination and inquiry,
shall determine the full and fair value of said land under the valuation standard applicable to other land and shall
assess the same according to such value. If, notwithstanding such change of use, the land is valued, assessed
and taxed under the provisions of this chapter in the ensuing year, upon notice thereof said board shall enter an
assessment and the amount of the increased tax resulting from such assessment, as an added assessment and
tax against such land, in the "Omitted list" for the particular year involved in the manner prescribed in section
seventy-five of chapter fifty-nine. The amount of the added assessment shall be equal to the difference, if any,
between the assessment imposed under this chapter and the assessment which would have been imposed had
the land been valued and assessed as other land. The enforcement and collection of additional taxes resulting
from any additional assessment so imposed shall be as provided by said chapter fifty-nine. The additional
assessment imposed under this section shall not affect the conveyance or roll -back taxes, if any, applicable under
sections twelve and thirteen.
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General Laws: CHAPTER 61A, Section 9
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Print
PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 9 Allowance or disallowance of application for valuation; notice; liens
Section 9. An application for valuation, assessment and taxation of land under the provisions of this chapter shall
be allowed or disallowed by the board of assessors of the city or town in which such land is located within three
months of the filing thereof. An application for valuation, assessment and taxation of land under the provisions of
this chapter shall be disallowed by the board of assessors of the city or town in which such land is located if, in
their judgment such land, in whole or in part, does not qualify thereunder. If any board of assessors shall
determine that any application pursuant to this chapter is submitted for the purpose of evading payment of full
and proper taxes, such board shall be and hereby is authorized to disallow such application. The failure of a board
of assessors to allow or disallow any such application within three months following the filing thereof, shall be
deemed an allowance of such application. The board of assessors shall, within ten days of an allowance, or
disallowance, send written notice of such allowance, or disallowance, by certified mail to the landowner applicant
and shall set forth therein the reason or reasons for disallowance together with a statement advising the
landowner of his right to appeal therefrom as provided in section nineteen. In the case of a partial disallowance,
the landowner shall be permitted to file an amendment to the original application.
With respect to the first application relating to a parcel of land which has been approved, and any subsequent
such applications after a lapse of time when such land has not been valued, assessed and taxed under this
chapter or after a change of record ownership of such land, the board of assessors shall forthwith cause to be
recorded in the registry of deeds of the county or district in which the city or town is situated a statement of their
action which shall constitute a lien upon the land covered by such application for such taxes as may be levied
under the provisions of this chapter. The statement shall name the owner or owners of record and shall include a
description of the land adequate for identification. Unless such a statement is recorded the lien shall not be
effective with respect to a bona fide purchaser or other transferee without actual knowledge of such lien. Upon
application by any record owner, such liens shall be released by the board of assessors with respect to any parcel
of land as provided below in this section upon the applicable facts being established by their records or by
affidavits or otherwise.
All liens for special assessments or betterment assessments under section eighteen shall be released in full or in
part upon its being so established that any such assessment or portion of such assessment which have become
due have been paid.
All liens for conveyance tax under section twelve, shall be released upon its being so established that no
conveyance or change of use by the owner at the time of such release will result in a conveyance tax under said
section twelve or that any such taxes which have become due have been paid.
All liens for roll -back taxes under section thirteen, other than roll -back taxes based on change of use after the
date of such release, shall be released upon its being so established that no roll -back taxes have become due or
that any such taxes which have become due have been paid.
The board of assessors shall also have the power and authority to release any such liens to correct any errors or
omissions. Any release under this section shall be recorded with the registry of deeds.
When any land which has been valued, assessed and taxed under this chapter ceases to be so valued, assessed
and taxed the board of assessors shall forthwith record in the registry of deeds a statement to that effect which
shall include the name of the record owner or owners, the date when such land ceased to be so valued, assessed
and taxed and a description of the land adequate for identification.
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General Laws: CHAPTER 61A, Section 9
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All recording fees paid pursuant to the provisions of this chapter whether for statements of liens, certificates,
releases or otherwise shall be bome by the owner of record of the land.
2 of 2 3/22/2011 10:22 AM
General laws: CHAPTER 61A, Section 10
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Print
PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 10 Factors to be considered in valuing land
Section 10. The board of assessors of a city or town, in valuing land with respect to which timely application has
been made and approved as provided in this chapter, shall consider only those indicia of value which such land
has for agricultural, horticultural or agricultural and horticultural uses. Said board, in establishing the use value of
such land, shall use the list of ranges published pursuant to section eleven and its personal knowledge, judgment
and experience as to such agricultural land values but these factors shall be limited to data specific to the crop or
product being grown or produced.
1 of 1 3/22/2011 10:25 AM
General Laws: CHAPTER 61A, Section 11
htip://www.malegislature.gov/Laws/GeneralLaws/Partl/TitleD(/Chap...
&4 Print
PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 11 Farmland valuation advisory commission; expenditures
Section 11. There is hereby created a farmland valuation advisory commission, the members of which shall be the
commissioner of revenue who shall be chairman, the commissioner of agriculture, commissioner of the
department of conservation and recreation, the director of housing and community development, the dean of the
college of food and natural resources of the University of Massachusetts, or their respective designees, and one
person to be appointed by the governor who shall be a member of a local board of assessors. The commission
shall meet from time to time at the call of any of the above named commissioners and shall, prior to January first
of each year, determine, for application during the ensuing tax year, a range of values on a per acre basis for each
of the several classifications of land in agricultural or horticultural or forest land uses in the several counties of the
commonwealth. The annual list of value ranges so determined shall be published by the commissioner of revenue
and shall be mailed by him to the board of assessors of each city and town in the commonwealth no later than
February first of each year. In determining such ranges in value, the commission shall consider evidence of
agricultural or horticultural land use capability available from soil surveys and such other evidence and
documentation as may, in its judgment, appear pertinent.
The commissioner of revenue may expend such sums as may be appropriated for the farmland valuation advisory
commission for the purposes of securing data for use in determinations by said commission and for expenses
incurred in the administration of this chapter.
1 of 1 3/22/2011 10:27 AM
General Laws: CHAPTER 61A, Section 12
htip://www.malegislature.gov/Laws/GeneralLaws/PartUTitleDUChap...
Print
PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 12 Sale of land or change of use; liability for conveyance tax; exemptions
Section 12. Any land in agricultural, horticultural or agricultural and horticultural use which is valued, assessed
and taxed under the provisions of this chapter, if sold for other use within a period of ten years from the date of
its acquisition or the earliest date of its uninterrupted use by the current owner in agriculture or horticulture,
whichever is earlier, shall be subject to a conveyance tax applicable to the total sales price of such land, which tax
shall be in addition to such taxes as may be imposed under any other provision of law. Said conveyance tax shall
be at the following rate: ten per cent if sold within the first year of ownership; nine per cent if sold within the
second year of ownership; eight per cent if sold within the third year of ownership; seven per cent if sold within
the fourth year of ownership; six per cent if sold within the fifth year of ownership; five per cent if sold within the
sixth year of ownership; four per cent if sold within the seventh year of ownership; three per cent if sold within
the eighth year of ownership; two per cent if sold within the ninth year of ownership; one per cent if sold within
the tenth year of ownership. Notwithstanding the previous sentence, no conveyance tax shall be assessed if the
land involved, or a lesser interest in that land, is acquired for a natural resource purpose by the city or town in
which it is situated, by the commonwealth or by a nonprofit conservation organization, but if any portion of the
land is sold or converted to commercial, residential or industrial use within 5 years after acquisition by a nonprofit
conservation organization, the conveyance tax shall be assessed against the nonprofit conservation organization in
the amount that would have been assessed at the time of acquisition of the subject parcel by the nonprofit
conservation organization had that transaction been subject to a conveyance tax. The conveyance tax shall be
assessed on only that portion of land on which the use has changed. No conveyance tax shall be imposed under
the provisions of this section following the end of the tenth year of ownership. Said conveyance tax shall be due
and payable by the grantor at the time of transfer of the property by deed or other instrument of conveyance and
shall be payable to the tax collector of the city or town in which the property is entered upon the tax list. In the
case of taking by eminent domain, the value of the property taken shall be determined in accordance with chapter
79, and the amount of conveyance tax, if any, shall be added to that amount as an added value. If there is filed
with the board of assessors an affidavit by the purchaser that the land is being purchased for agricultural,
horticultural or agricultural and horticultural use, no conveyance tax shall be payable by the seller by reason of
the sale, but if the land is not continued in that use for at least 5 consecutive years, the purchaser shall be liable
for any conveyance tax that would have been payable on the sale as a sale for other use. The conveyance tax shall
be assessed on only that portion of land whose use has changed. Except with respect to eminent domain takings,
the provisions of this section shall not be applicable to the following: mortgage deeds; deeds to or by the city or
town in which such land is located; deeds which correct, modify, supplement or confirm a deed previously
recorded; deeds between husband and wife and parent and child when no consideration is received; tax deeds;
deeds releasing any property which is a security for a debt or other obligation; deeds for division of property
between owners without monetary consideration; foreclosures of mortgages and conveyances by the foreclosing
parties; deeds made pursuant to a merger of a corporation or by a subsidiary corporation to its parent corporation
for no consideration other than the cancellation and surrender of capital stock of such subsidiary which do not
change beneficial ownership; and property transferred by devise or otherwise as a result of death. A nonexempt
transfer subsequent to any exempt transfer or transfers shall be subject to the provisions of this section. Upon
such nonexempt transfer the date of acquisition by the grantor, for purposes of this section, shall be deemed to
be the date of the last preceding transfer not excluded by the foregoing provisions from application of this
section; except that in the case of transfer by a grantor who has acquired the property from a foreclosing
mortgagee the date of acquisition shall be deemed to be the date of such acquisition. Any land in agricultural or
horticultural use which is valued, assessed and taxed under the provisions of this chapter, if changed by the
owner thereof to another use within a period of ten years from the date of its acquisition by said owner, shall be
subject to the conveyance tax applicable hereunder at the time of such change in use as if there had been an
actual conveyance, and the value of such land for the purpose of determining a total sales price shall be fair
market value as determined by the board of assessors of the city or town involved for all other property. If any tax
imposed under this section should not be paid, the collector of taxes shall have the same powers and be subject
1 of 2 3/22/2011 10:29 AM
General Laws: CHAPTER 61A, Section 12
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to the same duties with respect to such taxes as in the case of the annual taxes upon real estate, and the law in
regard to the collection of the annual taxes, to the sale of land for the nonpayment thereof and to redemption
therefrom shall apply to such taxes, so far as the same are applicable.
No conveyance tax will be assessed on land that meets the definition of forest land under section 1 of chapter
61 or the definition of recreational land under section i of chapter 61B.
2 of 2 3/22/2011 10:29 AM
General Laws: CHAPTER 61A, Section 13
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" Print
PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 13 Change of use; liability for roll -back taxes
Section fl -Whenever land which is valued, assessed and taxed under this chapter no longer meets the definition
�S `-of-land actively devoted to agricultural, horticultural or agricultural and horticultural use, it shall be subject to
additional taxes, in this section called roll -back taxes, in the current tax year in which it is disqualified and in
those years of the 4 immediately preceding tax years in which the land was so valued, assessed and taxed, but
roll -back taxes shall not apply unless the amount of those taxes as computed under this section, exceeds the
amount, if any, imposed under section 12 and, in that case, the land shall not be subject to the conveyance tax
imposed under said section 12. For each tax year, the roll -back tax shall be an amount equal to the difference, if
any, between the taxes paid or payable for that tax year in accordance with this chapter and the taxes that would
have been paid or payable in that tax year had the land been valued, assessed and taxed without regard to those
provisions. If, at the time during a tax year when a change in land use has occurred, the land was not then
valued, assessed and taxed under the provisions of this chapter, then such land shall be subject to roll -back taxes
only for such of the five immediately preceding years in which the land was valued, assessed and taxed
thereunder. In determining the amount of roll -back taxes on land which has undergone a change in use, the
board of assessors shall have ascertained the following for each of the roll -back tax years involved:
(a) The full and fair value of such land under the valuation standard applicable to other land in the city or town;
(b) The amount of the land assessment for the particular tax year;
(c) The amount of the additional assessment on the land for the particular tax year by deducting the amount of
the actual assessment on the land for that year from the amount of the land assessment determined under
subsection (a); and,
(d) The amount of the roll -back tax for that tax year by multiplying the amount of the additional assessment
determined under subsection (c) by the general property tax rate of the city or town applicable for that tax year.
Roll -back taxes will be subject to a simple interest rate of 5 per cent per annum. Land which is valued, assessed
and taxed under this chapter as of July 1, 2006 shall be exempt from any interest if it remains in the same
ownership as it was on that date or under the ownership of the original owner's spouse, parent, grandparent,
child, grandchild, brother, sister or surviving spouse of any deceased such relative.
If the board of assessors determines that the total amount of roll -back taxes to be assessed under this section,
before the addition of any interest, as provided for in the preceding paragraph, would be less than $10, no tax
shall be assessed.
No roll -back tax imposed by this section will be assessed on land that meets the definition of forest land under
section 1 of chapter 61 or recreational land under section 1 of chapter 61B.
Land retained as open space as required for the mitigation of development shall be subject to the roll -back taxes
imposed by this section.
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" Print
PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 14 Sale for or conversion to residential or commercial use; notice of intent to city or town;
option to purchase; assignment of option
Section 14. Land taxed under this chapter shall not be sold for, or converted to, residential, industrial or
commercial use while so taxed or within 1 year after that time unless the city or town in which the land is located
has been notified of the intent to sell for, or to convert to, that other use.
The discontinuance of forest certification shall not, in itself, for the purposes of this section, be considered a
conversion. Specific use of land for a residence for the owner, the owner's spouse or a parent, grandparent, child,
grandchild, or brother or sister of the owner, or surviving husband or wife of any deceased such relative, or for
living quarters for any persons actively employed full-time in the agricultural or horticultural use of such land,
shall not be a conversion for the purposes of this section, and a certificate of the board of assessors, recorded with
the registry of deeds, shall conclusively establish that particular use.
Any notice of intent to sell for other use shall be accompanied by a statement of intent to sell, a statement of
proposed use of the land, the location and acreage of land as shown on a map drawn at the scale of the assessors
map in the city or town in which the land is situated, and the name, address and telephone number of the
landowner.
Any notice of intent to sell for other use shall be accompanied by a certified copy of an executed purchase and
sale agreement specifying the purchase price and all terms and conditions of the proposed sale, which is limited
to only the property classified under this chapter, and which shall be a bona fide offer as described below.
Any notice of intent to sell for other use shall also be accompanied by any additional agreements or a statement
of any additional consideration for any contiguous land under the same ownership, and not classified under this
chapter, but sold or to be sold contemporaneously with the proposed sale.
For the purposes of this chapter, a bona fide offer to purchase shall mean a good faith offer, not dependent upon
potential changes to current zoning or conditions or contingencies relating to the potential for, or the potential
extent of, subdivision of the property for residential use or the potential for, or the potential extent of
development of the property for industrial or commercial use, made by a party unaffiliated with the landowner for
a fixed consideration payable upon delivery of the deed.
Any notice of intent to convert to other use shall be accompanied by a statement of intent to convert, a statement
of proposed use of the land, the location and acreage of land as shown on a map drawn at the scale of the
assessors map in the city or town in which the land is situated, the name, address and telephone number of the
landowner and the landowner's attorney, if any.
The notice of intent to sell or convert shall be sent by the landowner by certified mail or hand delivered to the
mayor and city council of a city, or board of selectmen of a town, and in the case of either a city or a town, to its
board of assessors, to its planning board and conservation commission, if any, and to the state forester.
A notarized affidavit that the landowner has mailed or delivered a notice of intent to sell or convert shall be
conclusive evidence that the landowner has mailed the notice in the manner and at the time specified. Each
affidavit shall have attached to it a copy of the notice of intent to which it relates.
The notice of intent to sell or convert shall be considered to have been duly mailed if addressed to the mayor and
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city council or board of selectmen in care of the city or town clerk; to the planning board and conservation
commission if addressed to them directly; to the state forester if addressed to the commissioner of the
department of conservation and recreation; and to the assessors if addressed to them directly.
If the notice of intent to sell or convert does not contain all of the material described above, then the town or
city, within 30 days after receipt, shall notify the landowner in writing that notice is insufficient and does not
comply.
For a period of 120 days after the day following the latest date of deposit in the United States mail of any notice
which complies with this section, the city or town shall have, in the case of intended sale, a first refusal option
to meet a bona fide offer to purchase the land.
In the case of intended or determined conversion not involving sale, the municipality shall have an option to
purchase the land at full and fair market value to be determined by an impartial appraisal performed by a
certified appraiser hired at the expense of the municipality or its assignee, the original appraisal to be
completed and delivered to the landowner within 30 days after the notice of conversion to the municipality. In
the event that the landowner is dissatisfied with the original appraisal, the landowner may, at the landowner's
expense, contract for a second appraisal, to be completed within 60 days after the delivery of the notice to
convert. If, after completion of the second appraisal, the parties cannot agree on a consideration, the parties will
contract with a mutually acceptable appraiser for a third appraisal whose cost will be borne equally by both
parties. The third appraisal shall be delivered to both parties within 90 days after the notice of conversion to the
municipality and shall be the final determination of consideration. Upon agreement of a consideration, the city or
town shall then have 120 days to exercise its option. During the appraisal process, the landowner may revoke
the intent to convert at any time and with no recourse to either party.
The option may be exercised only after a public hearing followed by written notice signed by the mayor or board
of selectmen, mailed to the landowner by certified mail at the address that is specified in the notice of intent.
Notice of public hearing shall be given in accordance with section 23B of chapter 39.
The notice of exercise shall also be recorded at the registry of deeds and shall contain the name of the record
owner of the land and description of the premises adequate for identification of them.
The notice to the landowner of the city or town's election to exercise its option shall be accompanied by a
proposed purchase and sale contract or other agreement between the city or town and the landowner which, if
executed, shall be fulfilled within a period of not more than 90 days after the date the contract or agreement,
endorsed by the landowner, is returned by certified mail to the mayor or board of selectmen, or upon expiration
of any extended period that the landowner has agreed to in writing, whichever is later.
At the public hearing or a further public hearing, the city or town may assign its option to a nonprofit
conservation organization or to the commonwealth or any of its political subdivisions under the terms and
conditions that the mayor or board of selectmen may consider appropriate. Notice of public hearing shall be
given in accordance with section 23B of chapter 39.
The assignment shall be for the purpose of maintaining no less than 70 per cent of the land in use as forest land
as defined in section 1, as agricultural and horticultural land as defined in sections 1 and 2 of chapter 61A or as
recreation land as defined in section 1 of chapter 6113, and in no case shall the assignee develop a greater
proportion of the land than was proposed by the developer whose offer gave rise to the assignment. All land
other than land that is to be developed shall then be bound by a permanent deed restriction that meets the
requirements of chapter 184.
If the first refusal option has been assigned to a nonprofit conservation organization or to the commonwealth or
any of its political subdivisions as provided in this section, the mayor or board of selectmen shall provide written
notice of assignment to the landowner.
The notice of assignment shall state the name and address of the organization or agency of the commonwealth
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which will exercise the option in addition to the terms and conditions of the assignment. The notice of
assignment shall be recorded with the registry of deeds.
Failure to record either the notice of exercise or the notice of assignment within the 120 day period shall be
conclusive evidence that the city or town has not exercised its option.
If the option has been assigned to a nonprofit conservation organization or to the commonwealth or any of its
political subdivisions, the option may be exercised by the assignee only by written notice to the landowner
signed by the assignee, mailed to the landowner by certified mail at the address that is specified in the notice
of intent. The notice of exercise shall also be recorded with the registry of deeds and shall contain the name of
the record owner of the land and description of the premises adequate for identification of them.
The notice of exercise to the landowner shall be accompanied by a proposed purchase and sale contract or
other agreement between the assignee and landowner which, if executed, shall be fulfilled within a period of
not more than 90 days, or upon expiration of any extended period the landowner has agreed to in writing,
from the date the contract or agreement, endorsed by the landowner, is returned by certified mail to the
assignee.
During the 120 day period, the city or town or its assignees, shall have the right, at reasonable times and
upon reasonable notice, to enter upon the land for the purpose of surveying and inspecting the land, including,
but not limited to, soil testing for purposes of Title V and the taking of water samples.
The city or town or its assignee shall have all rights assigned to the buyer in the purchase and sale agreement
contained in the notice of intent.
If the city or town elects not to exercise the option, and not to assign its right to exercise the option, the city
or town shall send written notice of nonexercise, signed by the mayor or board of selectmen, to the landowner
by certified mail at the address that is specified in the notice of intent. The notice of nonexercise shall contain
the name of the owner of record of the land and description of the premises adequate for identification of them
and shall be recorded with the registry of deeds.
No sale or conversion of the land shall be consummated until the option period has expired or the notice of
nonexercise has been recorded with the registry of deeds, and no sale of the land shall be consummated if the
terms of the sale differ in any material way from the terms of the purchase and sale agreement which
accompanied the bona fide offer to purchase as described in the notice of intent to sell except as provided in
this section.
This section shall not apply to a mortgage foreclosure sale, but the holder of a mortgage shall, at least 90 days
before a foreclosure sale, send written notice of the time and place of the sale to the parties in the manner
described in this section for notice of intent to sell or convert, and the giving of notice may be established by
an affidavit as described in this section.
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PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 15 Taxation of buildings and land occupied by dwelling
Section 15. All buildings located on land which is valued, assessed and taxed on the basis of its agricultural or
horticultural uses in accordance with the provisions of this chapter and all land occupied by a dwelling or regularly
used for family fiv-PIng shall be valued, assessed and taxed by the same standards, methods and procedures as
other taxable property.
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PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
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Print
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 16 Continuance of land valuation, assessment and taxation under this chapter dependent upon
qualifying use
Section 16. Continuance of land valuation, assessment and taxation under the provisions of this chapter shall
depend upon continuance of such land in agricultural or horticultural uses and compliance with other
requirements of this chapter and not upon continuance in the same owner of title to such land. Liability to
roll -back taxes, determined pursuant to section thirteen, shall attach when such land no longer qualifies as
actively devoted to agricultural or horticultural use and shall be the obligation of the then owner of the land. For
purposes relating to roll -back taxes such qualification shall depend on the actual use of such land for the previous
5 years, and not on the filing of application under section six for any year.
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" Print
PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 23 Use of valuation, etc. procedures to evade taxes; penalties
Section -23. Any person using the valuation, assessment and taxation procedures set forth in this chapter for the
k purposesof evading -payment offuil-and proper taxes shall be subject to a fine of not more than ten thousand
dollars or imprisonment for'one year or both and to payment to the city or town in which the land is located of an
amount equaltothree times the dmount of taxes so evaded.
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Print
PART I ADMINISTRATION OF THE GOVERNMENT
(Chapters 1 through 182)
TITLE IX TAXATION
CHAPTER 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND
Section 24 Severability
Section 24. If any clause, sentence, subdivision, paragraph, section or part of this act be adjudged by any court of
competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof,
but shall be confined in its operation to the clause, sentence, subdivision, paragraph, section or part thereof
directly involved in the controversy in which said judgment shall have been rendered.
1 of 1 3/22/2011 10:47 AM
O� ;AOR H 4
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BUILDING DEPARTMENT
(ommunhy Develoiimont Division
August 17, 2010
Staele Hughes -Birch, Occupant
95 Lacy Street
North Andover, MA 01845
Re-, 95 Lacy Street) iNoxth Andover, MA. 01845
Dear Ms. Hughes -Birch:
Our office was asked to investigate a connnplaint regarding the property identified as 95 Lacy
Street. Please accept tlt'ss letter as official notice of zoning violations under the North Andover
Zoning Bylaw, Section 4.121.6.a.
Our office conducted an exterior visnat Inspection of the property at #95 Lacy Street on July 30,
2,010 based on a complaint submitted on ruly 22, 2010 by Diane R. McGarvey and Stephanie and
john O'Mahony, which is attached hereto.
The below information is based on findings that your lot is 3.31 acres in the R- 1 zone.
Animals:
Inn the R-1 zone, North .Andover Zoning Bylavv Section. 4.121.6.a permits:
"On any lot of at least three (3) acres, the keeping of a total of not more than three
(3) of any kind or assortment of animals or birds in addition to the household pets
of a family living on such lot, and for each additional acre of lot size to five (5),
the keeping of one additional aninnal or bird but not the keeping of animals, birds,
or pets of persons not resident on such lot."
The lot is 3.31 acres. Upon inspection it appeared that there were more than three horses as well
as arooster. When asked, Mr. Birch stated that the were eight horses on the property.
Fnfol-Cement
The evidence Indicates that there is a violation of Section 4.121.6.a of the Zoning Bylaw because
the subject propeIty has more than three kinds of animals or birds in addition to household pets.
I hereby demand that such violation be abated within fourteen days. Feel free to contact the
1600 Osgood Street, North Andover, Mossuthusotls 01845
Phone 978.688.9545 fax 978.688.9542 Web wwvr.townetnorlhendover.tem
building department immediately so that out office can assist you with rectifying these
conditions as soon as possible. We can be reached at 978-688-9545.
Respectfully,
�7-
e�
Gerald Drown
Xiispector of Buildings
Attaclunent: complaint letter
copy: Mark H. Rees, Town Manager
Thomas Urbelis, Town Counsel
Curt Bellavance, Community Development Director
Marshall L. Field, Administrator of the Estate of Barbara B. Tighe
1600 Osgood Stroot, ttorlh Andover, Mossachasells 01845
Phone 918.688.9545 Fox 978.688.9542 Wob my.tomioorJhandover.com
47/
July 22, 2010
Town Qf North Andover
Mark Rees, Town Manager
120 Main Street
North Andover, MA 01845
Dear Mr. Rees,
We are submitting a formal complaint regarding the situation at 95 Lacy Street, North
Andover, The current resident has been adjudicated by the Essex Probate Court to own
3 (three) acres of land, consisting of the former Tighe home and the land adjacent to
this structure. She does not own or have access to the barns, driveway or any portion of
the remaining 9 acres of the property. A plot plan for the property was approved by the
North Andover Planning Board several years ago when It was approved for 3 lots, not
Including the 3 acre parcel which is currently occupied by Stacy Hughes -Birch.
Ms. Birch's use and abuse of the property is the subject of this complaint. She was
ordered to vacate the approximately 9 acres of land owned by the Estate of Barbara
Tighe in 2006 and finally compiled with the Court order in May, 2010. She was ordered
to remove all her animals, chattel and to remain off the land henceforth. She currently
has no less than 8 (eight) horses, 4 chickens and one rooster, a large pig, and, a
peacock all housed on the 3 (three) acre parcel the Court deemed was for her use. She
only has a life estate in the property.
Pursuant to the Town of North Andover zoning laws, conservation regulations and
health department regulations, she is currently in violation of a multitude of laws, the
least of which that she can only have one animal (livestock) on her 3 acre parcel. In
addition to the flagrant and open violation of the zoning laws regarding livestock, (she
needs a minimum of five acres to run a farm as she is presently doing), she is also in
violation of the regulations governing proper disposal of animal waste, le. horse and pig
manure and shavings. She does not have a proper container for the manure or have it
removed, as is required, but, rather, is just dumping Into the back of her property, much
of which is currently deemed Wetlands. This contamination of the property has been
ongoing and she had been ordered by the State Department of Agriculture to have the
manure removed, as well as the Essex Probate Court. When ordered, she has removed
It on two occasions in the past 2 years, but, then just resumes her illegal storage and
dumping as she pleases. She does this openly and flagrantly. For almost 8 months she
had an area comprising over one acre covered with manure and waste materials, nearly
6 to 8 feet in height on the Estate property until ordered off at the threat of incarceration
In May, 2010. The police have been to this property, as well as the conservation
department and the building department at different times and she has not been fined or
had any action taken by any Town entity, That is not the experience of other residents
on this street who have had to comply with conservation and building codes when
building their homes or when the conservation commission deemed them in violation of
different regulations.
Since being forced off the Estate property, she has been cutting trees and clearing
brush in the wetland areas in order to enlarge her usable land space. She has also
erected rope paddocks and fencing in which are also on wetiand•areas.
The time for Ms. Birch to be treated differently needs to end now. If she can openly
have over 12 undomesticated animals on her three acres of land, that should apply to
everyone. I have one and a half acres of land, does that allow me to buy and house two
horses on my property? If not, action needs to be taken immediately by the respective
Boards and Commissions in this town and close down this "farm", force her to comply
with the Wetlands Protection Act and local town ordinances and be treated as any other
resident in North Andover who would be so bold as to openly and flagrantly ignore the
applicable re&latlons regarding livestock and animal waste. The State Board of
Agriculture will be notified of her misuse of the property, particularly with respect to her
ongoing disregard for the integrity. of the land and the surrounding wetlands and
conservation property.
The residents of this neighborhood have noted -an increase in the mosquito and horse
fly population, suffer the smell of manure and animal waste on these hot summer days
and believe their health and the integrity of the surrounding properties is in jeopardy of
contamination by allowing this behavior to continue. We cannot and will not stand by as
she continues to enjoy her 3 acre farm and cause property damage and open violation
of Town Ordinances.
We are direct abutters to this land at 90 and 143 Lacy Street and would like action to be
taken Immediately to remediate these issues. Thank you for your attention and I await
your actions on this Issue.
Respectfully Submitted,
Diane R. McGarvey, 90 Lacy Street, North Andover
Stephanie & John O'Mahony, 143 racy Street, North Andover
Cc: Jennifer Hughes, Conservation department
Susan Sawyer, Health Department
Gerald Brown, Inspector Building & Zoning
Curt Bellevance,Town Managers Office
Department of Agricultural Resources, Boston
Estate Attorney Nell Hurley, Lowell, MA
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North Andover Health Department
Community Development Division
April 8, 2011
Stephanie and John O'Mahony
143 Lacy Street
North Andover, MA 01845
RE: Investigation of Complaint — 95 Lacy Street Lot 2A, 3.31 Acres
Dear Mr. and Mrs. O'Mahoney:
The Health office has reviewed the complaints submitted by you to the Health Department on April 1, 2011. In
response, the Health Department investigated the allegations and has the following findings.
Well concerns- Policy Well and Pump was contacted by this office on April 5, 2011. Mr. Skip Christian, the owner,
was interviewed on the work done recently at Lacy Street. He stated that they addressed two previously drilled water
wells. Both wells had old pumps that needed removal. Policy Well & Pump received approval by you to enter your
property, removed the pump and stated it was left in a safe capped condition. The pump was also removed from the
second well that is located on the property of 95 Lacy Street and the connection between the two pumps was
eliminated.
The company stated they installed a new pump and ran temporary utilities. This utility work is not complete. They
will be returning at a later date. In his professional opinion, the temporary condition is not a fire or safety hazard. I
advised Mr. Christian to contact the Building Department if he had any questions or need for permits. The Health
Department has no issue with the actions of this professional well and pump company at this time.
"Septic Appears to be failing" - On April 5, 2011 Wayne's Drains and Drains by James were contacted. In the past
12 months Wayne's reported pumping 95 Lacy Street one time on January 29, 2011. In a related issue, Drains by
James responded to a service call and snaked a drain from the tank to the house at 95 Lacy Street on January 30,
2011. Neither occurrence indicates a failed septic system.
Horse Manure - The "Horse manure... encroaching into the wetland area". Conservation notes that the wetland line
is currently under review and has no definitive comment at this time. If you have any questions regarding this
correspondence please contact the Health Office.
S' c rely,
Susan S,
er
Health Director
Cc: Pdrt Bellavance, Community Development Director
t/Gerald Brown, Inspector of Buildings - - - - - - - - -
1600 Osgood Street, North Andover, Massachusetts 01845
Phone 978.688.9540 Fax 978.688.8476 Web www.townofnorthandover.com
Town of North Andover
Building Department
1600 Osgood Street
North Andover, MA 01845
To Whom it May Concern:
ECE
APS, 272(;11
NORTH ANDOVER
CONSERVATION COMMISSION
April 25, 2011
Regarding 95 Lacy Street, formally Whipporwill Farm, I sincerely hope before any
permits are issued for new structures on the property that the neighbors are
informed in advance and have the opportunity to comment on what happens with
that piece of property. It is the least the Town can do for all us neighbors that
have to live through the continuing saga between the Hatfield and McCoys.
Have you seen the property lately? Before you dismiss the whole street off you
should put yourself in our place and come look at what we have to look at.
4ianne McGarvey, Esq.
90 Lacy Street
Noq!Andover, MA 01845
Cc:
Planning Department
Zoning Board of Appeals Department
Health Department
Conservation Department
BUILDING DEPARTMENT
(ommunity Development Division
August 17, 2010
Stacie Hughes-Birell, Occupant
95 Lacy Street
North Andover, MA- 01845
Re: 95 Lacy Street, North Andover, MA 01845
Dear Ms. Hughes -Birch:
Our office was asked to investigate a coniplaint regarding the property identified as 95 Lacy
Street. Please accept this letter as official notice of zoning violations under the North Andover
Zoning Bylaw, Section 4.121.6.a.
Our office conducted an es s ibin tted on July 22, 2010 by Diane R. McGarvey and Stephanie n
2010 based on a comphlaid
john O'Mahony, which is attached hereto.
The below infornlation is based on findings that your lot is 3.31 acres in the R-1 zone,
Animals:
Xn the It -1 zone, North Andover Zoning Bylaw Section 4,121.6.a permits:
"On any lot of at least three (3) acres, the keeping of a total of not 111010 than three
(3) of any kind or assortment of animals or birds in addition to the household pets
of a fanxily living on such lot, and for each additional acre of lot size to five (5),
the keeping of one additional animal or bird but not the keeping of animals, birds,
or pets of persons not resident oil such lot."
The lot is 3.31 acres. TSpon inspection it appeared that there were more than three horses as well
as a rooster. When asked, Mr. Birch stated that there were eight horses on the property.
1Gnforeetnent
'She evidence indicates that there is a. violation of Section 4.121.6,a of the Zoning Bylaw because
the subject propetty has snore than three kinds of animals or births in addition to household pets.
I hereby demand that such violation be abated withhi fourteen days. Feet free to contact the
1600 os800d Street, North Andover, Mossuftsotis 41845
Phone 918.688.9545 fax 978.688.9542 Web Wwvl.tovrnoEnorlhondovor.tom
building department immediately so that our office can assist you with rectifying these
conditions as soon as possible. We can be reached at 978688-9515.
Respectfully,
Gerald Brown
Inspector of Buildings
Attaclunent: complaint letter
copy: Mark H. Rees, Town Manager
Thomas Urbelis, Town Counsel
Ctut Bellavance, Community Development Director
Marshall L. Field, Administrator of the Estate of Barbara B.Tighe
1600 Osgood Stroot, Horth Andover, Massachusetts 01845
Phone 918.688.9545 Fox 978.688.9542 Woh www.townofnotthondover.com
July 22, 2010
Town Qf North Andover
Mark Rees, Town Manager
120 Main Street
North Andover, MA 01845
Dear Mr. Rees,
We are submitting a formai complaint regarding the situation at 95 Lacy Street, North
Andover, The current resident has been adjudicated by the Essex Probate Court to own
3 (three) acres of land, consisting of the former Tighe home and the land adjacent to
this structure. She does not own or have access to the barns, driveway or any portion of
the remaining 9 acres of the property. A plot plan for the property was approved by the
North Andover Planning Board several years ago when it was approved for 3 lots, not
including the 3 acre parcel which is currently occupied by Stacy Hughes -Birch,
Ms. Birch's use and abuse of the property is the subject of this complaint. She was
ordered to vacate the approximately 9 acres of land owned by the Estate of Barbara
Tighe in 2006 and finally compiled with the Court order in May, 2010. She was ordered
to remove all her animals, chattel and to remain off the land henceforth. She currently
has no less than 8 (eight) horses, 4 chickens and one rooster, a large pig, and, a
peacock all housed on the 3 (three) acre parcel the Court deemed was for her use. She
only has a life estate in the property.
Pursuant to the Town of North Andover zoning laws, conservation regulations and
health department regulations, she Is currently in violation of a multitude of laws, the
least of which that she can only have one animal (livestock) on her 3 acre parcel. In
addition to the flagrant and open violation of the zoning laws regarding livestock, (she
needs a minimum of five acres to run a farm as she is presently doing), she Is also in
violation of the regulations governing proper disposal of animal waste, €e. horse and pig
manure and shavings. She does not have a proper container for the manure or have it
removed, as is required, but, rather, is just dumping Into the back of her property, much
of which IS currently deemed Wetlands. This contamination of the property has been
ongoing and she had been ordered by the State Department of Agriculture to have the
manure removed, as well as the Essex Probate Court. When ordered, she has removed
it on two occasions in the past 2 years, but, then just resumes her Illegal storage and
dumping as she pleases. She does this openly and flagrantly, For almost 8 months she
had an area comprising over one acre covered with manure and waste materials, nearly
6 to 8 feet in height on the Estate property until ordered off at the threat of incarceration
in May, 2010. The police have been to this property, as well as the conservation
department and the building department at different times and she has not been fined or
had any action taken by any Town entity. That is not the experience of other residents
on this street who have had to comply with conservation and building codes when
building their homes or when the conservation commission deemed them in violation of
different regulations.
Since being forced off the Estate property, she has been cutting trees and clearing
brush in the wetland areas in order to enlarge her usable land space. She has also
erected rope paddocks and fencing In which are also on wetland. areas.
The time for Ms. Birch to be treated differently needs to end now. If she can openly
have over 12 undomesticated animals on her three acres of land, that should apply to
everyone. I have one and a half acres of land, does that allow me to buy and house two
horses on my property? if not, action needs to be taken immediately by the respective
Boards and Commissions in this town and close down this "farm", force her to comply
with the Wetlands Protection Act and local town ordinances and be treated as any other
resident in North Andover who would be so bold as to openly and flagrantly ignore the
applicable regOlatlons regarding livestock and animal waste. The State Board of
Agriculture will be notified of her misuse of the property, particularly with respect to her
ongoing disregard for the integrity of the land and the surrounding wetlands and
conservation property.
The residents of this neighborhood have noted -an increase in the mosquito and horse
fly population, suffer the smell of manure and animal waste on these hot summer days
and believe their health and the integrity of the surrounding properties is in jeopardy of
contamination by allowing this behavior to continue. We cannot and will not stand by as
she continues to enjoy her 3 acre farm and cause property damage and open violation
of Town Ordinances.
We are direct abutters to this land at 90 and 143 Lacy Street and would like action to be
taken immediately to remediate these issues. Thank you for your attention and I await
your actions on this Issue.
Respectfully Submitted,
Diane R. McGarvey, 90 Lacy Street, North Andover
Stephanie & John O'Mahony, 143 Lacy Street, North Andover
Cc: Jennifer Hughes, Conservation Department
Susan Sawyer, Health Department
Gerald Brown, Inspector Building & Zoning
Curt Believance,Town Managers Office
Department of Agricultural Resources, Boston
Estate Attorney Neil Hurley, Lowell, MA
North Andover Health Department
Community Development Division
April 8, 2011
Diane R. McGarvey
90 Lacy Street
North Andover, MA 01845
RE: Investigation of Complaint — 95 Lacy Street Lot 2A, 3.31 Acres
Dear Ms. McGarvey:
The Health office has reviewed the complaint submitted by you to the Health Department on
April 1, 2011. In response, the Health Department investigated the allegations and has the
following findings.
Well concerns - Policy Well and Pump was contacted by this office on April 5, 2011. Mr. Skip
Christian, the owner, was interviewed on the work done recently at Lacy Street. He stated that
they addressed two previously drilled water wells. Both wells had old pumps that needed
removal. Policy Well & Pump received approval by you to enter your property, removed the
pump and stated it was left in a safe capped condition. The pump was also removed from the
second well that is located on the property of 95 Lacy Street and the connection between the two
pumps was eliminated.
The company stated they installed a new pump and ran temporary utilities. This utility work is
not complete. They will be returning at a later date. In his professional opinion, the temporary
condition is not a fire or safety hazard. I advised Mr. Christian to contact the Building
Department if he had any questions or need for permits. The Health Department has no issue
with the actions of this professional well and pump company at this time. Please note that this
document will be forwarded to the Building Department. If you have any questions regarding
building or electrical permits, please contact the Building Department.
Sincerely,
usan S er
Health Direct r
Cc: Curt Bellavance, Community Development Director
VGerald Brown, Inspector of Buildings
1600 Osgood Street, North Andover, Massachusetts 01845
Phone 978.688.9540 Fax 978.688.8476 Web www.townofnorthandover.com
TOWN OF NORTH ANDOVER
Building Department
1600 Osgood Street
Building 2- Suite 2-36 Building Dept
North Andover MA 01845
Tel: (978) 688-9545 Fax (978) 688-9542
COMPLAINT FOR INVESTIGATION
DATE: "5 1 TEL
NAME OF COMPLAINTANT:c)`
ADDRESS.::1
COMPLAINT TYPE:;
Electrical:
Plumbing:
Gas: - %
Building:
Property Owner:
Address:
a
W
)S
SHERIN
LODGEN
Thomas Paul Gorman
Direct Dial: 617.646.2118
e-mail: tpgorman@sherin.com
24759.8
March 22, 2011
CONFIDENTL4L AND PRIVILEGED
ATTORNEY-CLIENT COMMUNICATION
Mark Rees, Town Manager
Town of North Andover
120 Main Street
North Andover, MA 01845
Re: 95 Lacy Street, North Andover, Massachusetts 01845
Dear Mr. Rees:
In connection with this matter, I have enclosed the following draft documents in
connection with the action against Stacey Hughes -Birch in this matter:
1. Motion for summary judgment;
2. Memorandum in support of motion for summary judgment;
3. Affidavit of Gerald Brown, as Inspector of Buildings;
4. Appendix of documents pursuant to Land Court Rule 4;
5. Statement of Material Facts pursuant to Land Court Rule 4.
By copy of this letter, I am sending a set of the drafts to Mr. Brown and to Mr. Urbelis,
for any questions, comments or changes they may have.
In the meantime, if you have any questions, please do not hesitate to contact me.
Very truly y urs,
Thomas Paul Gorman
TPG/mjm
Enclosures
cc: Gerald Brown, Inspector of Buildings
Thomas J. Urbelis, Esq., North Andover Town Counsel
Robert J. Muldoon, Jr., Esq.
00358784.DOC/2
Sherin and Lodgen LLP 13 101 Federal Street Boston, MA 02110 ® t 617.646.2000 13 f 617.646.2222 13 www.sherin.com
6'7 — 64'4 -- 2 pie
+Edward M. Bloom
617.646.21 14
embloom@sherin.com
24759.7
BY OVERNIGHT MAIL
Mr. Mark Rees, Town Manager
Town of North Andover
120 Main Street
North Andover, MA 01845
SHERIN%
EN
F1CF' QF ;�(V t RMANAGEPI
FebruaryJ _ .__._...A,.,�., _
Re: 95 Lacy Street, North Andover, Massachusetts 01845
Dear Mr. Rees:
We have been asked by Town Counsel for North Andover (the "Town") to review the
letter from Gerald Brown, Inspector of Buildings, dated August 17, 2010 with respect to a notice
of violation (the "Violation Letter") regarding the keeping of a number of non -household pets in
excess of the number permitted by §4.121.6.a of the North Andover Zoning Bylaw ("the
Bylaw") at the property located at 95 Lacy Street.
By way of background, we ascertain the following facts related to 95 Lacy Street. The
current owner/occupant of an approximately 3.31 acre lot at 95 Lacy Street (the "Birch Lot") is
Ms. Stacie Hughes -Birch. Ms. Birch has been involved in lengthy litigation with the
beneficiaries of Barbara Tighe, the former owner of 95 Lacy Street. Pursuant to this litigation,
Ms. Birch was granted a fee title interest in the Birch Lot which is carved out from the
approximate eleven (11) acre lot which was owned by Ms. Tighe (the "Farm Parcel"), as set
forth on a "Plan of Land in North Andover, Mass. prepared for the Estate of Barbara Tighe dated
February 21, 2006, revised October 11, 2007" and approved by the Town Planning Board as an
Approval not Required Plan on October 17, 2007 and filed with the Essex North Registry of
Deeds as Plan No. 15842 (the "Plan"). The Farm Parcel was known as Whippoorwill Farm and
was used for, among other things, boarding horses and dogs and as a home to a variety of farm
animals including horses, ponies, chickens and a pig since approximately the 1960's.
According to Bylaw §4.121.6.a, permitted uses in the Residence 1 District, where the
Birch Parcel is located, specifically include agriculture, horticulture, floriculture, viticulture and
silvaculture uses, with a caveat that on any lot of at least three (3) acres, the keeping of a total of
not more than three (3) of any animals or birds in addition to household pets of a family living on
such lot is allowed, but not the keeping of animals, birds or pets of persons not resident on the
lot. According to Bylaw §4.121.6.b, on any lot of at least five (5) acres, the keeping of any
Sherin and Lodgen LLP 101 Federal Street Boston, MA 02110 . t 617.646.2000 f 617.646.2222 www.sherin.com
00351595.DOCx/2
5A
Mr. Mark Rees
February 3, 2011
Page - 2 -
SHERIWO
LODGEN
number of animals or birds regardless of ownership and the operation of equestrian riding
academies, stables, stud farms and poultry batteries are allowed. As the Farm Parcel was
subdivided pursuant to a court order, creating the Birch Parcel, the Violation Letter correctly
states that the keeping of eight (8) horses on the Birch Parcel at that time was in violation of
§4.121.6.a of the Bylaw. Note, the Birch Parcel would also be in violation if any non -household
pets were owned by anyone other than Ms. Birch.
Regardless of how long Ms. Birch operated the Farm Parcel as a farm or horse boarding
facility or for other agricultural purposes, such uses are not entitled to the protections of
Massachusetts General Laws Chapter 40A, Section 3, the Dover Amendment, with respect to the
Birch Parcel. Although the operation of training, raising and boarding horses falls within the
agricultural use exception of the Dover Amendment, which states no zoning bylaw shall
unreasonably regulate or require a special permit for the use of land for the primary purpose of
agriculture, but such activities are limited to parcels of more than five (5) acres in an area not
zoned for agricultural use. See Rosenfeld v. the Zoning Board of Appeals of Mendon, 2011
WL 242734 (Mass. App. Ct.) for a summary of the Dover Amendment and agricultural uses. In
this case, the Birch Parcel, which is only 3.31 acres in size, is located in the Residence 1 Zoning
District which permits agricultural use as of right; therefore, the Birch Parcel clearly does not fall
into the plain language protections granted by the Dover Amendment and the Birch Parcel may
be regulated to the full extent by the Town, including the limitation as to the number of non -
household pets.
Ms. Birch may also argue that the keeping of a greater number of farm animals than three
(3) is allowed on the Birch Parcel because such use is grandfathered. This claim will also fail.
Section 9, Non -Conforming Uses, of the Bylaw provides the regulations regarding non-
conforming uses. The number of animals allowed on the Birch Parcel is not considered a pre-
existing non -conforming use, because such use was lawfully in existence on the Farm Parcel.
Now that the Farm Parcel has been subdivided, creating the new Birch Parcel, the Birch Parcel is
now subject to the applicable use regulations set forth in the Bylaw. As stated in §9.3b "no
portion of this Section 9.3... shall be construed to allow for any uses other than those expressly
allowed as defined in each above listed zoning district of the Zoning Bylaw." Therefore, the
keeping of a greater number of non -household pets on the Birch Parcel is not a pre-existing non-
conforming use which is benefitted by grandfathering but is subject to the applicable use
regulations set forth in the Bylaw.
Ms. Birch may also argue that the subdivision of the Farm Parcel which created the Birch
Parcel was not of her own volition and the non -conformity created by the decrease in acreage
should be protected. Again this argument will fail. In a recent decision involving the Town of
Andover, Johnson, trustee v. Board of Appeals of Andover, et al., 78 Mass App. Ct. 292 (2010),
the Appeals Court reviewed a similar issue whereby a taking by eminent domain created a
00351595. DOCX/2
En
Mr. Mark Rees
February 3, 2011
Page - 3 -
SHERIN'
LODGEN
zoning non -conformity on an already grandfathered parcel. The Court held that c. 40A, §6,
fourth paragraph, only protected the post taking parcel from zoning amendments enacted
subsequent to the taking and because the post taking parcel did not meet minimum buildable lot
requirements, a variance was required for residential use. In the issue at hand, the Birch Parcel is
subject to the existing Bylaws limiting the number of farm animals at the time the Birch Parcel
was created. Even though §4.121.6.a was enacted in 1993, subsequent to the commencement of
the keeping and boarding of many animals on the Farm Parcel, the Birch Lot was created by the
Plan in 2007, when this Bylaw provision was already in existence. According to 40A, §6, sixth
paragraph, the Bylaws applicable to use at the time of Plan submission to the Planning Board
govern.
In conclusion, the Violation Letter is in accordance with Massachusetts General Laws.
Ms. Birch would need to seek a variance in accordance with § 10.4, Variances and Appeals, for
keeping any number of non -household pets greater than three (3) or any non -household pets
which are not owned by her. As any "hardship" created by the subdivision of the Farm Parcel
was not self-imposed by Ms. Birch, she is not precluded from seeking relief (see discussion at
Adams v. Brolly, 46 Mass. App. Ct. (1998)). In granting a variance, a plaintiff must show that a
hardship relates to the land itself and not because of a financial situation or any other
considerations unrelated to the underlying real estate. Paulding v. Bruins, 18 Mass. App. Ct. 707
(1984) (analysis of property owners' financial issues not considered in grant of variance as
hardship must relate to the land itself). In applying for a variance, Ms. Birch would need to
assert any hardships as relating to the land itself and not her circumstances.
Therefore, we affirm the legal authority of the Violation Letter for the reasons stated
herein. Should you need any further information please feel free to contact us.
Very truly yours,
Edwar M. Bloom
EMB:sjm
cc: Thomas J. Urbelis, Esq. North Andover Town Counsel
Robert J. Muldoon, Esq.
Bethany A. Bartlett, Esq.
00351595.DOCX/2
RA
BUILDING DEPARTMENT
(ommunity Development Division
August 17, 2010
Stacie Hughm-Birch, OCCUpant
95 Lacy Street
North A1ldover, MA 01845
Re; 95 Lacy Street, Nortll Andover, MA 01845
Dear Ms. Hughes-Bircli:
Our office was asked to investigate a complaint regarding the property identified as 95 Lacy
Street. Please accept this letter as official notice of zoning violations under the Noilli Andover
Zoning Bylaw, Section 4.121.6.0.
Our office conducted an exterior visual inspection of the property at 05 Lacy Street on July 30,
2010 based on a complaint submitted on July 22, 2010 by Diane R. McGarvey and Stephanie and
John O'Mahony, whiell is attached hereto.
1'lte below information is based on findings that yolu' lot's 3.31 acres in the R-1 zone.
AnhualS:
In the R-1 zone, North .Aiidover Zoning Bylaw Section 4.121.6.,1 permits:
"On any lot of :1t least three (3) acres, the keeping of a total of not more than three
(3) of any kind or assortment of animals or birds in addition to the lloUsel10l(1 pets
of a family living on such lot, and for each additional acre of lot size to five (5),
the keeping of one additional animal or bird but not the keeping of animals, birds,
or pets of persons not resident °n .911011 lot."
The Jot is 3.31 acres, l;lpon inspelc} stated t tat ihelwere eight °1e there)i it appeared tha( let horses onthellrope ly
ales as well
as a rooster. Wlien asked, 1\4r.Iii
Lnfol-Celncnt
'.Che evidence indicates that there is 0 vio]atio�l of Section 4,121.6.a of the Zoiling Bylaw because
the subject propei.ty has more than tlu•ee kinds of animals or birds in 0ddition to household pets,
l llereby demand that suc11 violation be abated within fourteen days. Feel free to contact t11e
1600 OsO od Stroel, Horlh Andover, MossodiUSeltS 01845
Phone 978.688.9545 Fax 978.688.9542 Wall myVI.t0wnetnorlhendovomom
Q�.
building department immediately so that our office can assist you with rectifying these
conditions as soon as possible. We cim be reached at 978-688-9545.
Respectfully,
�.7u<
Gerold Brown
Inspector of Buildijigs
Attaclvnetit: complaint letter
copy: Mark H. Rees, Town Manager
Thomas Urbelis, Town Counsel
Clint Bellavance, Community Development Director
Marshall L. Field, Administrator of the Estate of Barbara B. Tighe
1600 Osgood Slreol, tlorlh Andover, llossadiusells 01845
Pliono 918,688.9545 fox 918.688.9542 19ob w►v+v,lotvnolnotIlion dovemom
Thomas Paul Gorman
Direct Dial: 617.646.2118
e-mail: tpgorman@sherin.com
24759.8
Mark Rees, Town Manager
Town of North Andover
120 Main Street
North Andover, MA 01845
SHERINZ"`�`
Q v
D C��a
OFFICE OF TOWN MANAGER
March 15, 2011
CONFIDENTIAL AND PRIVILEGED
ATTORNEY-CLIENT
COMMUNICATION
Re: 95 Lacy Street, North Andover, Massachusetts 01845
Dear Mr. Rees:
GEN `
We have filed and had served the complaint against Stacey Hughes -Birch. The Land
Court has assigned the case to Judge Grossman, and has scheduled a Case Management
Conference for Wednesday, June 15, 2011 at 10:00 a.m. Pursuant to the Court's Notice of Case
Management Conference, a copy of which is enclosed, I am required to confer with Ms. Hughes -
Birch (or her counsel) fourteen days before the conference, and to file a joint statement no later
than five days before the conference.
I propose to have ready for filing and service before then a motion for summary
judgment. It may be that we could have the motion heard on that date, depending on the resonse
we receive from Ms. Hughes -Birch.
If you have any questions concerning the notice or the status of the case, please do not
hesitate to contact me.
Very truly yours,
�M94044�
Thomas Paul Gorman
TPG/mjm
Encl.
cc: Thomas J. Urbelis, Esq., North Andover Town Counsel
Robert J. Muldoon, Jr., Esq.
00357654. DOC/
Sherin and Lodge LLP F 101 Federal Street Boston, MA 02110 E t 617.646.2000 f: f 617.646.2222 L www.sherin.com
COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
Three Pemberton Square
Room 507
Boston, MA 02108
Tel: 617-788-7470
Thomas Paul Gorman Esq.
Sherin and Lodgen LLP
101 Federal Street
Boston, MA 02110
Case No.: 11 MISC 446023
March 11, 2011
Case Name: Gerald Brown Inspector for the Town of North Andover v. Stacey Hughes -birch
NOTICE OF JUDGE AND TRACK ASSIGNMENT
Please be advised that the above entitled case has been assigned to Hon. Harry
M Grossman, whose Sessions Clerk is Emily Rosa (617) 788-7419.
2. The case has been assigned to the "A" Track, pursuant to Land Court Standing
Order 1-04. A copy of the presumptive deadlines applicable to the Average "A"
and the Fast "F" Tracks are enclosed for your information. Please be sure to
serve any and all defendant(s) in this action as soon as possible. Failure to serve
the defendant(s) timely under Mass. R. Civ. P. 40) may result in dismissal.
3. You are responsible for sending a copy of this notice and the presumptive
deadlines to the defendant(s).
Very truly yours,
r%
Deborah J. Patterson
Recorder
K:U.ANDC0URTP0RMSU.C169.D0C TD: 10/6/04 3/11/20119:24 AM 1 ON
CO1,tMOh NTE-ALTH OF lWL4SS CHUSETT S
9 ; L_kND COURT
` DEPARTMINT OF THE TRIA-L COURT
TRA C-U7YG 9CHED LIE - �4 °TRS CE (4 YE1Z� GE)
For all cases not other- rise assigned to the Fast Track or Tax Track. Original registration
and confirmation cases under G. L. c. 185, are included h-idhin the "A° Trackco nenciag on the
date when the.sournmoas or citation issues. Please consult cornplete tli-Ine standards, promulgated
as Land Court Standing Order 1.04 for Trher details, available on the Court's website -
htto:/!mass. aov/courtsandiudaes,�cou ts/landcou� find z.ht-nl
Three Months (90 days)
• Service completed on all parties.
• Case Management Conference held.
• Early Intervention Event held pursuant to SJC Unifo= Rules on Dispute Resolution;
Rule 1:18.
Sixteen Months (40 dans)
• Discovery.
Eizhteen Months (540 days)
• Dispositive motions under Mass. R Civ. P. 12(b)(1); 12(b)(6); 12(c); and 56, filed and
served with supporting memoranda and affidavits.
Nineteen Months (570 days)
• Dispositive motions responses filed and served.
Twenty Months (600 days)
e Dispositive motions heard, (reply briefs filed ten (10) days prior to hearing).
Twenty -Seven Months (810 days)
• Case assigned for pre=trial conference: joint pre-trial memorandum filed one week prior
to conference.
Twenty-Eieht Months (840 dans)
e Pre-trial conference held (mandatoiry.attendance); firm trial date set.
Thirty -One Months (930 days)
• Trial held.
Thirty -Three Months (990 days)
e Transcripts filed with the Court.
Thirty -Four Months (1020 days)
Post -trial briefs filed.
COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
Three Pemberton Square
Room. 507
Boston, MA 02108
Tel: 617-788-7470
March 11, 2011
Thomas Paul Gorman Esq.
Sherin and Lodgen LLP
101 Federal Street
Boston, MA 02110
Case No.: 11 MISC 446023
Case Name: Gerald Brown Inspector for the Town of North Andover v. Stacey Hughes -birch
NOTICE OF CASE MANAGEMENT CONFERENCE
An initial Case Management Conference shall be held before Hon. Harry M Grossman in
accordance with Land Court Department Standing Order No. 1-04 as follows:
Date: June 15, 2011
Time: 10:00 AM
Location: Courtroom 404 - Fourth Floor
The court considers attendance of the senior attorneys ultimately responsible for the case to be of
utmost importance, and both they and all individuals representing themselves pro se are required to
attend the conference. The plaintiff(s) (through counsel if represented, or individually if proceeding
pro se) must ensure that all attorneys and pro se parties, including those who have not filed an
answer or annearance with the court, are notified of the Case Management Conference date, and
must initiate the drafting of the Joint Statement referenced below. The court strongly encourages
all parties to have counsel represent them at this conference and throughout the case.
Obligation of Counsel to Confer. Unless otherwise ordered by the court, the parties (through their
counsel if they are represented, and on their own behalf if they do not have counsel) shall confer no later
than fourteen (14) days before the date of the Case Management Conference for the purpose of
preparing the mandatory written joint statement.
Joint Statement. Unless otherwise ordered by the court, the parties are required to file, no later than
five (5) business days before the Case Management Conference, an original and a duplicate copy of a
written joint statement which shall include:
KALANDCOURTFORMS\LCALL168CMC.DOC TD: 10/6/04 3/11/2011 11:45 AM
1. A short description of the case, its issues, and the parties' respective positions on
those issues.
2. A list of all related cases, whether in this or any court or tribunal, and whether
currently pending or concluded. The list shall contain, for each such case, the
case name, parties, court, docket number, status, and a short description of its
facts, issues and relationship to this action. If the parties contemplate a request
for consolidation, transfer to another court, or special assignment of a trial court
justice, the joint statement should address this.
3. A joint discovery plan which proposes a schedule for the time and length of all
discovery events, including the time for designation of experts witnesses, if any,
and for the disclosure of their expected testimony. The discovery plan shall either
be consistent with the initial Track Designation given the case or, if the parties
propose a different schedule, one that allows the parties to complete discovery on
the modified schedule. The parties are encouraged to consider the desirability of
conducting phased discovery, so that the court can reach potentially dispositive
issues early in the case, or so the parties will acquire as soon as possible
information needed for a realistic assessment of the case. Amendments to the
designation or tracking order of a case, or an extension or other modification of
any of the tracking order dates, may be ordered by the court on its own motion,
for good reasons and as the interests of justice require, but otherwise may be
requested and granted only upon motion and for good cause shown. A motion to
amend or modify the tracking order must be in writing and set forth in detail the
facts upon the moving part(ies) rely in support of said motion.
4. A proposed schedule for the filing of motions identifying with specificity the
types of motions anticipated and the parties expected to bring them. If the parties'
proposed motion schedule exceeds any of the deadlines contained in the Track
Designation, the court must grant permission (see paragraph 3 above).
5. A statement of the parties' willingness to participate in mediation (settlement
negotiations assisted by a neutral person) or other methods of alternative dispute
resolution. The statement must describe and give the status of any alternative
dispute resolution which the parties have attempted, scheduled, or proposed to
each other.
6. A brief statement (with reasons) identifying anyone not already in the case whom
any party intends to join or believes ought to become a party. If any party is a
non-governmental corporate entity, include in your Case Management Conference
memorandum a statement in compliance with Supreme Judicial Court Rule 1:21,
if you have not already done so.
7. A brierstatement (with reasons) of any additional notices) including by
publication, recording, to the Attorney General, etc.) which any party believes
ought to be given.
KALANDCOURTFORMSTCALL168CMC.DOC TD: 10/6/04 3/11/201111:45 AM
1.+
8. A proposed list of other matters to be discussed at the conference, if the judge
decides it is appropriate to do so.
The court strongly encourages all parties to reach agreement on a proposed
pretrial schedule (discovery and motions) and to so indicate in their joint statement. If,
despite best efforts, the parties disagree about the pretrial schedule, they should set forth
separately the items on which they differ and indicate the nature of (and reasons for) that
difference.
The purpose of the parties' proposed pretrial schedules should be to advise the
judge of the parties' best estimates of the time they will need to accomplish specified
pretrial steps. The parties' proposed list of matters to be discussed at the scheduling
conference, and their proposed pretrial schedules, shall be considered by the judge as
advisory only.
It is the plaintiff(s)' responsibility to file the final version of the joint statement,
following conference with all parties, by the deadline established in this notice.
Settlement Proposals. Unless otherwise ordered by the court, the plaintiff shall present
written settlement proposals to all defendants no later than five (5) business days before
the date of the Case Management Conference. Settlement proposals and responses shall
not be included or summarized in the joint statement, or otherwise filed with the court.
However, defense counsel shall have conferred with their clients on the subject of
settlement before the Case Management Conference and be prepared to respond to the
proposals at the Conference, if asked to do so by the judge. If a defendant is representing
himself or herself pro se, he or she should be prepared to respond at the conference.
Any party who fails to attend the Case Management Conference, or who does not
in good faith participate in it or in the preparation of the joint statement, shall be subject
to sanctions including (if the court deems it appropriate) dismissal of that party's claims
or entry of judgment against that party.
KALANDCOURTFORMS\LCALL168CMC.DOC TD: 10/6/04 3/11/201111:45 AM
North Andover Health Department
Community Development Division
March 17, 2011
Stacy Hughes Birch
95 Lacy Street
North Andover, MA 01845
RE: Animal Permit Application — 95 Lacy Street, North Andover, MA 01845
Dear Ms. Hughes -Birch:
On behalf of the Town of North Andover Health Department, this is in response to your application for an Animal
Permit, recently submitted by you with respect to animals kept at the property consisting of Lot 2A, 95 Lacy Street,
North Andover, Massachusetts (the "Property") which is in the Residence 1 Zoning District. The Animal Permit
application form states that the issuance of any such permit is "subject to the rules and regulations of the local Board
of Health and Zoning Bylaws." Specifically, the North Andover Zoning Bylaw § 4.121.6.a provides that:
On any lot of at least three (3) acres, the keeping of a total of not more than three (3) of any kind
or assortment of animals or birds in addition to the household pets of a family living on such lot,
and for each additional acre of lot.size to five (5), the keeping of one additional animal or bird but
not the keeping of animals, birds, or pets of persons not resident on such lot.
Your lot is less than 5 acres and according to your application you have more than 5 animals in addition to
household pets. As you know, on or about August 17, 2010, Gerald Brown, in his capacity as Inspector of Buildings
for the Town, sent written notice to you regarding violation of Bylaw § 4.121.6., regulating the keeping of a number
of non -household animals at the Property. A true and correct copy of the notice of violation is attached. No appeal
was taken from this Notice
Accordingly, in view of the notice of violation and your continued noncompliance with the applicable Zoning
Bylaw, please be advised that your application has been denied. As such, we are returning your application and
check with this letter.
Thank you for your cooperation in this matter. If you have any questions regarding this correspondence please
contact the Health Department.
Sincerely,
Su an Sawyer H /R.S
P blic Health Director
Attach: Animal Permit Application & Check
Cc: vtierald Brown, Inspector of Buildings, Town of North Andover
Curt Bellavance, Community Development Director, Town of North Andover
File
1600 Osgood Street, North Andover, Massachusetts 01845
Phone 978.688.9540 Fax 978.688.8476 Web www.townofnorthandover.com
'� - f NOR7ly
TOWN OF NORTH ANDOVER
-? ♦ `+ ` •• OOP
Office of COMMUNITY DEVELOPMENT AND SERVICES :. �, f
HEALTH DEPARTMENTCH
CHUSEt
1600 OSGOOD STREET; Building 20; Suite 2-36
NORTH ANDOVER, MASSACHUSETTS 01845
Susan Y. Sawyer, REHS/RS 978.688.9540 — Phone
Public Health Director 978.688.8476 — FAX
healthdept@townofnorthandover.com
Animal Permit Form www.townofnorthandover.com
The undersigned hereby applies for a permit to "KEEP CERTAIN ANIMALS AND BIRDS" within the Town of North
Andover, in accordance with Chapter III, Section 23, 131 and 143 of the General Laws, and subject to the rules and
regulations of the local Board of Health and Zoning Bylaws.
ADDRESS/LOCATION OF
OWNERS
OWNER'S
Dealer: Yes V No
1. Cattle (Adult = 2 years & over)
Dairy
Beef
Steers/Oxen
2. Goats (Adult = 1 year & over)
3. Sheep (Adult =1 year & over)
4. Swine: Breeders
Feeders
5. Llamas / Alpacas
_. 6. Equines:
Horses / Ponies
Donkeys / Mules
Stable use
Private C7
Boarding 0
Rental O
Lessons O
IF
P
Adult Young (number of)
Training O
tV
o4 41
Name oYpp is (PLEASE PRINT)
TOTAL ACREAGE:
Contact Phone Numbers (indicate cell; home; work, etc. �V�
FEE: 35.00
Please make check payable to: Town of North Andover (mail to above address)
IF NOT RENEWED BEFORE MARCH 1sT THE FEE WILL BE DOUBLED TO $70.00
informallon requested by the Department ofAgricultural Resources Bureau ofAnima! Health —Form 74- 500BKS— 7/03—4DBSBB1.
t
Page 1 of 1
Brown, Gerald
From: Bellavance, Curt
Sent: Wednesday, September 01, 2010 11:43 AM
To: Brown, Gerald
Subject: Lacy Street
Importance: High
Jerry:
Has the 14 days passed regarding the enforcement letter to Stacie Hughes -Birch? If so have you heard
back from her regarding the letter or any course of action she plans to take??
Mark wants to set up a meeting with Tom Urbelis to discuss our next move if she has not responded.
Curt.
Curt T. Bellavance, AICP
Director I Community Development
Town of North Andover
1600 Osgood Street I Bldg 20 1 Suite 2-36
North Andover, MA 01845
ph: 978-688-9531
fax: 978-688-9542
"Deep summer is when laziness finds respectability" - Sam Keen
9/1/2010
COMMONWLUTH Or MASSACHUSETTS,
Essex
Ward F. Finnegan and Marshall L. Field
Field, Administrators with the Will
annexed of the estate of Barbaf,rra1,&ffi Tig
M
Scacey Hughes Bircly, Sean T: O'Hearn
James M. O'Heara, Patrick J. OtHearn
Thomas C. O'Hearn, Hessica B. Tighe,
Chelsea B, Ti¢he and AlexandraDefendants
P. Tighe
EQUITY JUDGMENT
This action came on for ) (hearing) before the court, U.
• J. presiding, and. the issues having been duly (
Ings having been duly rendered,
It is Ordered and Adjudged:
The signed Agreement of the Parties filed with .tt
Court September 5, 2006 is hereby incorporated and ate
into.this Judgment.
September 5, 2006
Date
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COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT
PROBATE AND FAMILY COURT DEPARTMENT
ESSEX DIVISION DOCKET NO. 04E -0083 -GCI
MARSHALL L. FIELD, ADMINISTRATOR OF THE ESTATE OF BARBARA B. TIGHE,
Plaintiff
V.
STACEY HUGHES -BIRCH, .
Defendant
JUDGMENT
(on Plaintiff s Complaint for Civil Contempt, filed September 22, 2009)
To assist in understanding some of the factual background of this action and certain
related matters, refer to the updated eighteen (18) page Procedural History filed herewith.
This Contempt matter was before the Court (Cronin, J.) for contested trial on January 14,
2010.
On September 22, 2009, Plaintiff Administrator of the Estate of Barbara Tighe (the
"Administrator") filed a 13 page Complaint For Civil Contempt (Pldg. # 185) against
Defendant Stacey Hughes -Birch (the "Defendant").
The Administrator contends, in essence, that Defendant willfully and knowingly
interferes with the proper administration of Decedent's estate, continues to violate prior
Judgments of this Court by continuing to occupy certain land and buildings to house several
horses and other animals, and refuses to pay court ordered sanctions. Defendant contends that
she is not guilty of contempt.
On January 14, 2010, the contested trial of the contempt action lasted for approximately 3
hours. Three witnesses testified: the Administrator, the Defendant, and a neighbor of the
Defendant. 8 attachments were appended to the contempt complaint, and 7 Exhibits were
entered into evidence during the trial.
The Plaintiff -Administrator was present throughout the trial, and was represented by
attorney William Hurley. Ms. Hughes -Birch was present throughout the trial, and represented
herself throughout the trial. Defendant is a knowledgeable and experienced self -represented
litigant. Approximately halfway through the trial, Defendant made an oral Motion for Recusal in
this contempt action. That Motion is hereby Denied, and the rationale for such Order is set forth
in more detail at paragraph #10 below.
BACKGROUND
Barbara B. Tighe ("Decedent") died 7 %2 years ago. At the time of her death, she owned
approximately 11.3 acres of land with barns and other buildings thereon, located in North
Andover Massachusetts.
As of December 23, 2004, the Court (Manzi, J) determined that of the 11.3 acres,
Defendant had a right to use approximately 3.3 acres (the "Defendant's Portion"), and
Defendant was ordered to vacate the remaining approximately 8 acres (the "Estate's Portion").
Defendant continues - without authority - to use and occupy the entire 11.3 acres and makes use
of the buildings, sheds and barns thereon to house at least five horses, three ponies, chickens, and
a pig.
It has been more than five years since Defendant was ordered to vacate certain land and
cease using certain buildings on the Estate's Portion of the 11.3 acres. She has yet to do so.
As more particularly described in the accompanying Procedural History, some of the
litigation which occurred during that five year period is as follows:
* hundreds of pleadings, affidavits, memoranda, etc., have been filed in this court,
including several requests for Reconsideration of previously entered Orders and Judgments;
* two Contempt Judgments entered, one on July 28, 2006 and one on February 7, 2008
(collectively the "Contempt Judgments"), both of which ordered Defendant, inter alia, to cease
and desist from entering onto or in any way using or occupying any portion of the structures or
land consisting of the Estate's Portion of the real estate, to remove all horses, animals and
personal property therefrom and, in the event of noncompliance, to pay daily sanctions to the
Administrator of the Estate. In the 2006 contempt judgment, the sanction was $50 per day. It
was not paid. In the 2008 contempt judgment, the sanction was increased to $200 per day. As of
January 14, 2010 Defendant had not yet paid anything toward the past due sanctions;
* Defendant commenced two actions in the Essex Superior Court, both of which are
concluded;
2
* at least four matters have been commenced by Defendant in the Appeals Court, and at
least two requests for Further Appellate Review ("FAR") have been commenced by Defendant in
the Supreme Judicial Court. Within those appeals, Defendant raised several issues including,
inter glia, the authority of the trial judge to act, the correctness of the Judge's interpretation of
the Decedent's Will, and the effect of a so-called Agricultural Use Restriction pursuant to
G.L. c. 61A, and c. 184.
As of the time of trial of this contempt action, all appeals have been concluded, and all of
the appeals have been decided against Defendant. The underlying Judgments are final.
As of the conclusion of the contempt trial on January 14, 2010, Defendant had not
complied with any of the requirements of either of the Contempt Judgments, had not paid any of
the court ordered sanctions, and had not vacated or ceased using the Estate's Portion of the real
estate and buildings. Defendant made it clear at the contempt trial that she has no intention of
complying with the prior Court Orders. She continues to argue, in essence, that her analysis of
the facts and law should supersede that of the Appeals Court and of the Supreme Judicial Court -
especially with regard to the agricultural lien issues that have already been determined.
As is more particularly set forth below, Defendant is Guilty of civil contempt of Court for
her willful, flagrant and contumacious conduct which has continued unabated for at least 3 %2
years. The jail sentence which is imposed by this Judgment is done only after thoughtful
consideration of the relevant facts, and the Court's observation of the Defendant's actions and
demeanor during several court hearings during the past 3 % years, and as a last resort which
hopefully will obtain compliance with this Court's Orders and Judgments. As is required in a
civil contempt, Defendant "has the keys to the jail". She can purge herself of contempt at any
time by simply complying with the terms of the Judgment. If she chooses to do so, she will not
have to serve the sentence. If she chooses to disregard the terms of this Contempt Judgment — as
she did the prior two Contempt Judgments - then she will serve the sentence, and be returned to
this Court at the conclusion of that sentence for the entry of such further Orders as may be
appropriate. The choice is entirely hers.
Discussion, Including Brief Findings, and Rulings
To assist in understanding some of the factual background of this action and certain
related matters, refer to the updated Procedural History filed herewith.
By the clear and unequivocal terms of the July 28, 2006 Contempt Judgment (Cronin,
J.) (Pldge. #62), Ms. Hughes -Birch was ordered not later than August 12, 2006 to cease
and desist from entering into or in any way using or occupying certain structures or land
located on Lacy Street in North Andover which were described in that Judgment by
reference to a Plan of Land. She was also ordered to remove therefrom all animals,
equipment, and personal property of hers.
In the event of Ms. Hughes -Birch's non-compliance, the July 28, 2006 Judgment ordered
that she pay to the Administrators sanctions in the amount of $50.00 per day beginning on
August 13, 2006 and continuing on each day thereafter until she is in full compliance
with the July 28, 2006 Judgment.
2. By the clear and unequivocal terms of the September 5, 2006 Judgment (Manzi, J.)
(Pldg. # 67), Ms. Hughes -Birch was ordered to "...remove any and all personalty and/or
livestock [owned by] her, or which may be present [on Lot 3A] through or as a result of
leases or rentals by or through [Ms. Hughes -Birch], from said structures on or before
September 20, 2006 at 5:00 p.m., and that Ms. Hughes -Birch shall not interfere in any
manner with the physical removal of said structures and the restoration of the premises by
the petitioners."
3. Paragraph 8 of the September 5, 2006 Judgment (Manzi, J.) also confirmed that the land
and buildings devised to Ms. Hughes -Birch by the decedent Barbara Tighe "...are defined
by and entirely contained within Lot 2A on the plan of land entitled `Plan of Land in
North Andover, Mass. prepared for the Estate of Barbara Tighe, 95 Lacy Street, Dated
February 21, 2006."'
4. By the clear and unequivocal terms of the February 7, 2008 Contempt Judgment
(Cronin, J.), Ms. Hughes -Birch was ordered not later than February 29, 2008, to cease and
desist from entering into or in any way using or occupying certain structures or land
located on Lacy Street in North Andover which were described in that Judgment by
reference to a Plan of Land. She was also ordered to remove therefrom all animals,
equipment, and personal property of hers.
Further, by the February 7, 2008 Contempt Judgment (Cronin, J.), Ms. Hughes -Birch was
ordered not later than March 15, 2008, to pay to the Administrators the sum of
$26,850.00, representing past due sanctions owed for her willful non-compliance with the
July 28, 2006 Contempt Judgment.
Still further, by the February 7, 2008 Contempt Judgment (Cronin, J.), Ms. Hughes -Birch
was ordered not later than February 29, 2008, to pay to the Administrators, in the event of
non-compliance, daily sanctions in the amount of $200.00 per day beginning on March 1,
2008 and continuing each and every day thereafter until in full compliance.
5. At all times relevant and material to this Contempt action, Ms. Hughes -Birch was fully
aware of the terms of the July 28, 2006 Judgment, the terms of the September 5, 2006,
and the terms of the February 7, 2008 Judgment including, without limitation, the terms
set forth in and described in paragraphs #1, #2, #3, and #4 above.
6. On October 3, 2006, Ms. Hughes -Birch filed a Notice of Appeal from the September 5,
2006 Judgment. On May 23, 2007, that appeal was dismissed by the Appeals Court for
0
lack of prosecution. The September 5, 2006 Judgment is final.
7. On November 24, 2008, Ms. Hughes -Birch filed an Appeal from the February 7, 2008
Contempt Judgment. On October 7, 2009, the Appeals Court affirmed' the February 7,
2008 Contempt Judgment and filed with this Court a rescript on December 8, 2009.
On October 21, 2009, Ms. Hughes -Birch filed a Petition for Rehearing regarding the
October 7, 2009 action of the Appeals Court. On November 2, 2009, the Appeals Court
denied the Petition for Rehearing.
On October 27, 2009, Ms. Hughes -Birch filed an application for Further Appellate
Review of the October 7, 2009 Appeals Court Judgment, which affirmed the February 7,
2008 Contempt Judgment. On December 3, 2009, the Supreme Judicial Court denied
Further Appellate Review. The February 7, 2008 Judgment is final.
9. Plaintiff has established by clear and convincing evidence that at all times relevant and
material to this contempt action, Ms. Hughes -Birch has willfully engaged in a course of
conduct which is accurately described as a "clear and undoubted" disregard for, and
violation of, the clear and unequivocal terms and requirements of the above described
Judgments including, without limitation, the following: .
A. Ms. Hughes -Birch has utterly refused to take any steps whatsoever to vacate the
land shown as Lots 3A, 4A and 5B or to cease possession, use or occupancy of
any portion of it;
B. Ms. Hughes -Birch has utterly refused to remove any of her horses, livestock, other
animals, or other personal property from the land shown as Lots 3A, 4A and 5B;
C. Ms. Hughes -Birch has five (5) horses, three (3) ponies, one (1) pig, and several
chickens which she continues to raise and keep on the premises in violation of the
Judgments of this Court; in addition, Ms. Hughes -Birch continues to accumulate
and store animal waste on the premises and has allowed her animals to enter onto
neighboring properties despite requests to the contrary;
D. Ms. Hughes -Birch has actively interfered with and prevented the Administrator
and his agents' from razing the structures, which straddle the boundary between
lot 2A and lot 3A, some of which are "caved -in" or otherwise in serious disrepair,
IIn its Memorandum and Decision pursuant to Rule 1:28, the Court noted, inter alia. "The defendant's
argument on appeal furnishes no coherent challenge to the findings and rulings set forth in the judgment, instead
insisting that the underlying judgment itself is incorrect. That judgment is final, and the defendant's willful violation
of its clear and unequivocal terms is amply established."
'See also: findings set forth at Paragraphs 6A through .6G of the February 7, 2008 Contempt Judgment.
5
in direct violation of prior orders and the Judgment dated September 5, 2006;
E. Ms. Hughes -Birch has made clear that she disagrees with prior Judgments of the
Court interpreting certain disputed provisions of Decedent Tighe's Will. As a
result, she has unilaterally chosen to disregard and knowingly disobey subsequent
Orders of the Court including, without limitation, the July 28, 2006 Judgment, the
September 5, 2006 Judgment, and the February 7, 2008 Judgment;
F. Ms. Hughes -Birch has no present intention of complying with the aforesaid
Judgments of the Court;
G. Ms. Hughes -Birch's actions and failures to act regarding the matters alleged in
this contempt action are willful and contumacious;
H. Ms. Hughes -Birch has not paid any of the money owed as daily sanctions pursuant
to the terms of the July 28, 2006 Contempt Judgment or the terms of the February
7, 2008 Judgment;
I. At all times relevant and material to this contempt action, Ms. Hughes -Birch has
had the ready ability and capacity to comply with the Judgments; but she
adamantly and perpetually chooses not to do so.
10. At the end of the morning session of the trial of this Contempt action, Ms. Hughes -Birch
made an oral Motion for Recusal, requesting that the Court (Cronin, J.) withdraw itself
from further participation in this action. No written motion nor affidavit was submitted
by Defendant. Ms. Hughes -Birch apparently contends that since the Court (Cronin, J.) is
one of the named defendants in a lawsuit3 filed by her in a federal court action, that this
Court is necessarily subject to prejudice and partiality in this Contempt Proceeding. In
consideration of Ms. Hughes -Birch's oral Motion for Recusal, the Court (Cronin, J.) has
conducted the two -prong analysis required by Lena v. Commonwealth and has concluded,
based upon an internal assessment and an objective appraisal, that no recusal is necessary
to render a fair and impartial decision in the matter. Not only has the Court (Cronin, J.)
based all of its decisions solely upon the credible evidence before the Court and not upon
any extra judicial source, but also virtually all Orders and Judgments have been in writing
and accompanied by such rationale or further explanation as may be appropriate.
After contested trial, assessing the credibility of the witnesses, and upon
consideration of the relevant and credible evidence, it is adjudged by clear and convincing
3The lawsuit also names as Defendants: Judge Manzi, the members of the North Andover Planning Board
and its Board of Assesors, as well as the Attorney for the Town of North Andover, the engineering firm which
prepared the relevant Plans of Land for the Estate, and the attorneys who have been involved in this litigation. A
Memorandum and Order (Woodlock, J.) dated March 15, 2010 dismissed the action as to all defendants.
m
evidence that Defendant Stacy Hughes -Birch is guilty of civil contempt of this Court.for
having willfully neglected and refused to obey the Judgments of the Court, dated July 28,
2006, September 5, 2006, and February 7, 2008.
WHEREUPON, for said Contempt it is ORDERED and ADJUDGED that:
Defendant owes Plaintiff $171,050 for unpaid Court-ordered sanctions owed for
the period August 13, 2006 through February 7, 2010.
A. Not later than April 16, 2010, Defendant shall pay to Plaintiff -
Administrator $10,000 as part payment of said sanctions;
B. Not later than May 14, 2010, Defendant shall pay to Plaintiff an additional
$10,000 as part payment of said sanctions;
C. The terms and conditions for payment of the remaining balance of
$151,050 shall be addressed as may be appropriate at the May 27, 2010
hearing referred to at paragraph #5, below.
D. Plaintiff is authorized to conduct such financial Discovery of Defendant as
may be appropriate in order to be fully prepared for the May 27, 2010
hearing; and
E. Defendant is ordered to file and serve, not later than April 9, 2010, a
complete, accurate and current Financial Statement, which shall contain at
least the information required by a person filing a Supplemental Rule 401
Financial Statement.
2. Not later than May 26, 2010 at noon:
A. Defendant and her agents, employees, assigns, lessees, licensees and
anyone claiming through her (collectively the "Defendant") shall cease and
desist from entering onto, into or in any way using or occupying any
portion of the structure(s) or land consisting of and shown as Lots 3A, 4A,
or 5B on a plan of land titled: "Plan of Land in North Andover, Mass.
Prepared for the Estate of Barbara Tighe, 95 Lacy Street, Scale 1" = 40'
Date: February 21, 2006" (Said Plan was entered into evidence as Exhibit
#6.); and
B. Defendant shall remove from the land shown as Lots 3A, 4A, and 5B all
horses, ponies, chickens, pigs, livestock, other animals, and other personal
property of Defendant, as well as all manure piles;
7
Defendant is committed to jail for ninety (90) days or until she shall purge
herself of said Contempt by full compliance with all of the requirements of the
immediately preceding paragraphs numbered 1A, 1B, 2A, and 2B, or until further
order of the Court, or until she be otherwise discharged by due course of law.
4. This sentence is suspended until May 27, 2010 at 9:00 a.m. on the condition that
Ms. Hughes -Birch complies in full and on time with all of the requirements of the
immediately preceding paragraphs numbered IA, IB, 2A, and 2B.
5. This matter is continued until May 27, 2010 at 9:00 a.m. for a compliance review
and hearing before the Court (Cronin, J.) at Salem. Defendant - Ms. Hughes -
Birch is Ordered to be present, in person, for that review and hearing as to, inter
alia, whether the aforesaid suspension shall be revoked and the ninety (90) days
sentence be served forthwith.
6. Additional Rationale for the immediately preceding paragraphs 1 - 5: Ms.
Hughes=Birch has approximately an additional two (2) months after her receipt of
this Judgment to comply with it. Removing the animals and personal property
should not be too costly nor too difficult for the contemnor. If she is leasing or
otherwise permitting any other horse owners to keep their horses, vans, tack or
any other personalty on any part of the land shown as Lots 3A, 4A, or 5B on the
2006 Plan (Exhibit #6) she can forthwith order them to remove all of it.
In the alternative, if she contends that she is the sole owner of all of the
horses and other animals, then she can forthwith make arrangements to board the
horses and ponies at another stable or, if she deems it more appropriate or
necessary, she can forthwith sell the animals, either on her own or through a
broker who shall immediately remove them from the premises and market them
from his or her separate location away from the premises.
If Ms. Hughes -Birch chooses to serve the aforesaid jail sentence in this
civil contempt action, she will still be able to purge herself of contempt at any
time during her incarceration by simply instructing her agent who is not
incarcerated (e.g.: her husband, her father, or anyone else of her choosing) to take
the required actions on her behalf to bring her into full compliance, and remedy
the deficiency and noncompliance which caused her incarceration. After hearing,
with notice to the Plaintiff and an opportunity to be heard, the Court may then
release her from custody if it finds she is in compliance.
7. The Administrator of the Estate of Barbara Tighe, Mr. Field, is hereby provided
with a Judicial Lien on Ms. Hughes -Birch's interest, if any, in the real estate
shown as Lot 2A on the 2006 Plan of Land described in paragraph 2A, above, in
order to secure timely payment to the Estate of all sums owed to it pursuant to the
terms of this Judgment. If the Administrator requires any further documentation
to establish and perfect this judicial lien, he may submit it to the Court, with
notice to Ms. Hughes -Birch, for the Court's consideration.
8. The Administrator's request that the Court implement, within this contempt
action, the so-called forfeiture provision of paragraph 22 of Decedent's Will is
denied, without prejudice to the Administrator's right to pursue that relief in such
other proceeding(s) or action(s) as may be appropriate.
9. Attorney's Fees and Costs: Defendant is ordered to pay the Estate of Barbara B.
Tighe its reasonable attorney's fees and costs incurred in connection with this
Contempt action. Not later than April 21, 2010, Plaintiff shall file and serve an
Affidavit enumerating said fees and costs. Defendant shall have until May 7,
2010 to file and serve a written Response on the issue of fees and costs.
A further hearing as to the issue of attorney's fees and costs is hereby
scheduled on May 27, 2010 in Salem before the Court (Cronin, J.) at 9:00 a.m.
Date: 3VZ 4
E
john P. Cronin, Justice
Probate and Family Court
COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT
PROBATE AND FAMILY COURT DEPARTMENT
ESSEX DIVISION
Marshall L. Field, Administrator Of
The Estate Of Barbara B. Tighe, Plaintiff
V.
Stacey Hughes — Birch, Defendant
DOCKET NO. 04E -0083 -GC I
ORDER
(On Defendant's Special Motion to Dismiss filed January 19, 20 10)
This matter was before the Court (Cronin J.) on January 27, 2010 for contested hearing
on Defendant's Special Motion to Dismiss made pursuant to G. L. c. 231, sec. 59H, the
"anti -SLA -PP" statute. Defendant was present and represented herself throughout the
hearing. The Administrator was not present, but was represented throughout the hearing
by attorney William Hurley.
BACKGROUND
On September 22, 2009, the Plaintiff Administrator filed a Complaint for Civil Contempt
against Defendant. The lengthy complaint alleges essentially that Defendant for an
uninterrupted period of more than three years violated three specific Judgments of this
Court by, inter alia, occupying certain land and buildings in violation of specific court
orders and judgments, and interfering with the Administrator's use of those premises to
the detriment of the Estate. Defendant denies that she is guilty of contempt.
On September 29, 2009, Defendant filed a Motion for Summary Judgment on the
Administrator's Contempt action. On September 30, 2009, the Administrator filed an
Opposition to that Motion for Summary Judgment. On November 10, 2009, after
contested hearing, the Court (Cronin, J.) denied Defendant's Motion for Summary
Judgment.
On November 24, 2009, Defendant filed a Motion to Dismiss the contempt pursuant to
Mass. R. Civ. P. Rule 12 (b) 1, 3, 5, 6, 7, & 9. On December 3, 2009, the Administrator
filed anj Opposition to that Motion to Dismiss. On December 23, 2009, after contested
hearing, the Court (Cronin J.) denied the Motion to Dismiss.
On January 19, 2010, Defendant filed the "Special Motion to Dismiss" which is the
subject of this Order. On January 27, 2010, the Court (Cronin J.) conducted a hearing on
the Special Motion to Dismiss.
DISCUSSION
When considering Defendant's G. L. c. 231, sec. 59H motion, she bears the initial burden
to demonstrate, through the pleadings and affidavits, that the claims sought to be
dismissed are "based on [Defendant's] `petitioning activities alone and have no
substantial basis other than or in addition to the petitioning activities."` Brice Estates,
Inc. v. Smith, et als, _ Mass. App. Ct._ (March 2, 2009), quoting from Wenger v.
Aceto, 451 Mass. 1, 5 (2008), quoting from Duracraft Corp. v. Holmes Prods. Corp., 427
Mass. 156, 167-168 (1998). If the moving party fails to make such a showing, the special
motion must be denied. Ibid.
The complaint for contempt is based on Defendant's alleged violations of three
judgments of this Court. Violating final' judgments of the Court does not constitute
petitioning activity as defined by the statute. Defendant has failed to meet her initial
burden in this action.
Even if one were to find -which I do not- that the complained of conduct in part
constituted petitioning activity, nonetheless that conduct would still involve both
petitioning activity and activity not considered petitioning, in this case violating court
orders and judgments. Defendant is not being sued in this contempt action for exercising
her right of petition under the Constitution. In any event, her alleged exercise of a right to
petition is not the sole cause of the contempt action filed against her.
WHEREFORE, the Special Motion to Dismiss is Denied.
March —y& 2010
John P. Cronin, Justice
Probate and Family Court
' Defendant's appeal on the September 5, 2006 judgment was dismissed by the Appeals Court on
May 23, 2007. The February 7, 2008 Contempt Judgment was affirmed by the Appeals Court on October 7,
2009.
COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT
PROBATE AND FAMILY COURT DEPARTMENT
ESSEX DIVISION DOCKET NO. 04E -0083 -GCI
MARSHALL L. FIELD, ADMINISTRATOR OF THE ESTATE OF BARBARA B. TIGHE,
Plaintiff
V.
STACEY HUGHES -BIRCH,
Defendant
MEMORANDUM of DECISION AND ORDER
(on Plaintiffs Complaint for Contempt, filed December 2, 2009)
I. PROCEDURAL HISTORY
(updated as of March 26, 2010)
A.DOCKET NO. 04E -0083 -GCI
1. On November 15, 2004, the Administrators filed a "Complaint for Instructions." The
Complaint requested inter alia, that the Court determine: the area of land and the
buildings devised to Ms. Hughes -Birch pursuant to the terms of a January 29, 2004
Judgment (Manzi, J.); the amount and type of insurance, if any, Ms. Hughes -Birch should
maintain on the property pending resolution; what portion of the premises and buildings
Ms. Hughes -Birch could continue to occupy and use; and the pro -rata share of real estate
taxes owed by Ms. Hughes -Birch.
2. On December 1, 2004, the Administrators filed a "Motion for Determination", which
reiterated the prayers included in the Complaint for Instructions. In essence, the Motion
sought to define what buildings and/or structures were to be included with the former
residence of the Decedent. Pursuant to the January 29, 2004 Judgment, Ms. Birch was
entitled to receive "a lot consistent with applicable zoning regulations, inclusive of
Barbara B. Tighe's Home with attached barn and inclusive of the hill behind said home
with barn." In support of the Motion for Determination, the Administrators asserted that
the parties were unable to agree what land and buildings were devised to Ms. Hughes -
Birch, and which buildings Ms. Hughes -Birch may continue to use and occupy as a
Page 1 of 18
barn/stable pending resolution of the case. Attached to the Motion was a copy of a 1989
subdivision plan (hereinafter "the 1989 Plan") of the subject property.'
3. On December 16, 2004, Ms. Hughes -Birch filed an Opposition to Administrator's Motion
for Determination and an Affidavit in support thereof. Ms Hughes -Birch requested that
the Court deny the Administrators' Motion for Determination, award her reasonable fees
and costs, order the Administrators to pay for a survey of the subject land and allow her to
continue her current use and occupation of the subject land and buildings.
4. On December 23, 2004, Ms. Hughes -Birch filed an Answer to Complaint for Instructions.
Also on December 23, 2004, the Court (Manzi, J.) entered an Order on Motion for
Determination, filed December 1, 2004. The Order interpreted the words "attached barn"
utilized in the Will, as referring to the structure identified as the "shed," located primarily
on Lot #2, but encroaching on Lot #3 of the 1989 Plan. The Order required that a "survey
shall be conducted of the land to determine the amount of land, not less than three acres,
to which Stacy Hughes -Birch is entitled." The Court ordered that Ms. Hughes -Birch shall
continue to have use of the building identified as the shed and, with the approval of the
Administrators, may continue to utilize the building identified as the barn, pending
completion of the survey and resolution of the Complaint for Instructions. Finally, the
Court determined that it was premature to determine Ms. Hughes -Birch's insurance
responsibility, as the property had not been valued or divided.
On December 31, 2004, Ms. Hughes -Birch filed a Motion for Clarification of Order
Dated December 23, 2004. Ms. Hughes -Birch contended that it was unclear whether the
Court determined that the barn on Lot #3 was not to be included in the survey or whether
the Court did not make such a determination and would allow the survey to continue
without suggesting to the surveyor that the barn should or should not be included in the
survey. Accordingly, Ms. Hughes -Birch requested that the Court (Manzi, J.) clarify
whether the barn contained on Lot #3 and other outbuildings located on Lot #2 and Lot #3
should be included in the survey.
7. On January 10, 2005, Co -Defendant, Sean T. O'Hearn, filed an Opposition to Ms.
Hughes -Birch's Motion for Clarification of Order Dated December 23, 2004 wherein
Sean T. O'Heam asserted that the Court's January 29, 2004 Judgment was clear in
respect to Ms. Hughes -Birch's challenges, and therefore did not require further
clarification.
8. On January 11, 2005, the Administrators filed an Opposition to the December 23, 2005
Motion for Clarification.
' The Administrators also filed a Motion for Determination on November 15, 2004, which is identical in
-- -- content.tothe December-1,.2004_Motion.----- --- ..__...- - - -- ---- -- ----- - - --- -- - -..
Page 2 of 18
9. On January 14, 2005, the Court (Manzi, J.) denied Ms. Hughes -Birch's Motion for
Clarification, noting that the December 23, 2004 "Order is clear."
10. On February 18, 2005, the Administrators filed a Motion wherein they requested that the
Court order Ms. Hughes -Birch to vacate the premises identified as the "existing barn"
located on Lot #3 of the 1989 Plan. In support of their Motion the Administrators noted
that, pursuant to the December 23, 2004 Order, Ms. Hughes -Birch's use of the existing
barn was at their discretion. The Administrators averred that they requested that Ms.
Hughes -Birch vacate the premises but that she refused.
11. On March 2, 2005, Ms. Hughes -Birch filed a Motion to Appoint Commissioner wherein
she requested that the Court order "that a Commissioner be appointed at the expense of
the Estate to conduct a survey" of the disputed land and that each party meet with the
Commissioner to present their positions regarding the scope of the survey. As grounds
therefore, Ms. Hughes -Birch stated inter alia, that the Administrators did not intend on
including Lot #3 in the survey, that the instruction not to include Lot #3 in the survey was
not a "fair interpretation" of the Court Order or Decedent's Will, that Ms. Hughes -Birch
had used the barn located on Lot #3 for ten (10) years prior and that the only logical
interpretation of Decedent's Will was that she intended to include Lot #2 and Lot #3, with
appurtenances, in the devise to Ms. Hughes -Birch.
12. On March 7, 2005, Ms. Hughes -Birch filed an Opposition to Administrator's Motion to
Vacate. In support thereof, Ms. Hughes -Birch's Opposition asserted in part that: she had
used and occupied the barn and appurtenances for the past ten (10) years; Lot #3 upon
which the barn stands, contains the well and access road which services Ms. Hughes -
Birch's property; and the Administrator's agreed to allow Ms. Hughes -Birch to use and
operate the barn and appurtenances, pending resolution of the matter, if Ms. Hughes -
Birch purchased and maintained a $500,000.00 insurance policy. Accordingly, Ms.
Hughes -Birch requested that the Court deny the Administrator's Motion to Vacate, allow
her to continue using Lot #3 and the buildings on that Lot, pending determination of the
matter and/or survey of the property, and award her reasonable fees and costs.
13. On March 9, 2005, Co -Defendants Sean T. O'Heam, James M. O'Hearn, Patrick J.
O'Hearn, Thomas C. O'Hearn, Jessica B. Tighe, Chelsea B. Tighe and Alexandra P.
Tighe, filed a Brief in Support of Plaintiff's/Administrators' Motion to Vacate.
14. Also on March 9, 2005, the Court (Manzi, J.) allowed the Administrators' February 18,
2005 Motion to Vacate, as prayed for, and ordered that Ms. Hughes -Birch "shall
forthwith vacate the premises identified as Lot 3 and Existing Barn upon such Lot, except
that portion of Lot 3, upon which the Shed (located primarily on Lot 2) encroaches."
15. Also on March 9, 2005, after hearing, the Court (Manzi, J.) denied Ms. Hughes -Birch's
Page 3 of 18
Motion to Appoint Commissioner, as the relief sought was not available on the pleadings.
The Court further ordered that "the survey having been commissioned by the
Administrators, shall be completed as soon as reasonably possible."
16. On April 4, 2005, the Administrators filed a Complaint for Contempt wherein they
alleged that Ms. Hughes -Birch violated the March 9, 2005 Court Order by failing to
vacate Lot #3 and the Existing Barn thereon. The Administrators sought: entrance of a
Contempt adjudication against Ms. Hughes -Birch; an order requiring Ms. Hughes -Birch
to pay the Administrators $200.00 per day for each day that she continued to use and
occupy the premises in violation of the Court order; and costs and attorney's fees incurred
in connection with the action.
17. On April 14, 2005, Attorney Charles F. Dalton, Jr. filed a Motion to Withdraw as counsel
for Ms. Hughes -Birch.
18. On April 27, 2005, Ms. Hughes -Birch filed a Response to the Request to Withdraw as
Attorney, wherein she ultimately assented to the withdrawal provided that Attorney
Charles F. Dalton, Jr. " withdr[ew] all bills submitted to S[tacey Hughes -Birch] in the
guise of skilled legal services and refund all monies paid to him by [Stacey Hughes -
Birch] to date."
19. On April 27, 2005, the Court (Manzi, J.) allowed Attorney Charles F. Dalton, Jr.'s
Motion to Withdraw.
20. On May 24, 2005, Ms. Hughes -Birch filed a Motion to Dismiss the Administrators'
Complaint for Instructions pursuant to Rule 12(b)(6), and Memorandum in support
thereof. Although Ms. Hughes -Birch does not specifically identify the Administrators'
Complaint for Instructions as the subject of the Motion, she states that the
Administrators' Complaint "does not conform with the intent of G.L. c.231 A". The
Complaint for Instructions was filed pursuant to G. L. c. 231A, § 1, et. seq. In further
support of her Motion to Dismiss, Ms. Hughes -Birch asserts that dismissal is appropriate
because: the Court lacks subject matter jurisdiction pursuant to G. L. c. 231A, § 8 and
Mass R. Civ. P. 19(A)(1); no controversy exists; interested parties were not properly
joined in the matter; the Administrators failed to prosecute certain actions; and the
Administrators perpetuated a fraud upon the court. Moreover, Ms. Hughes -Birch
contended that the November 15, 2004 Complaint for Instructions failed to state a claim
upon which relief can be granted because "the legal theories and the relief sought are in
reality a single claim: namely, that a ruling by a prior court trumps the intent of a testatrix
when she executed her will and codicils."
21. On June 8, 2005, the Administrators filed an Opposition to Ms. Hughes -Birch's Motion
to Dismiss wherein they requested that the Court deny Ms. Hughes -Birch's May 24, 2005
Motion to Dismiss the Administrators' November 15, 2005 Complaint for Instructions.
Page 4 of 18
22. On June 16, 2005, Ms. Hughes -Birch filed a Response to Plaintiff's Opposition to
Defendant's Motion to Dismiss.
23. On June 23, 2005, the Court (Manzi, J.) denied Ms. Hughes -Birch's May 24, 2005
Motion to Dismiss.
24. On August 9, 2005, Ms. Hughes -Birch filed a Memorandum in support of her Motion for
Evidentiary Hearing on the Administrators' Complaint for Instructions and Motion for
Determination, both filed November 15, 2005. Ms. Hughes -Birch asserted that an
Evidentiary Hearing was necessary "to ensure that this Court is aware of an understands
the contradictory factual and legal issues Plaintiffs presented to induce this Court to
reconstruct an unambiguous will."
25. On August 11, 2005, Ms. Hughes -Birch filed a Motion Requesting Evidentiary Hearing
on the Administrators' Complaint for Instructions and Motion for Determination, both
filed November 15, 2005.
26. On September 12, 2005, the Administrators filed a Response to Ms. Hughes -Birch's
Request for Admission of Facts.
27. On September 19, 2005, Ms. Hughes -Birch filed a Motion for Summary Judgment
wherein she asserted that no genuine issue of material fact, or actual controversy, exist in
the pending case. Ms. Hughes -Birch did not specify the subject Complaint upon which
she was requesting Summary Judgment. However, she does recite that the Administrators
"bring an action that requests this Court for relief under the Declaratory Judgment Act,
G.L. c. 231A" which indicates that the subject of the Motion for Summary Judgment was
the Administrators' November 15, 2005 Complaint for Instructions. In support of her
argument, Ms. Hughes -Birch again refers to the language contained in the Decedent's
Will and Codicils and asserts that the intent behind that language is clear and
unambiguous. Ms. Hughes -Birch further alleged that the parties agreed on the testator's
intent relative to the devise of the farm, prior to hearing on the will contest, as evidenced
in Attorney Field's depositions.
28. On October 12, 2005, the Administrators filed an Opposition to Stacey Hughes -Birch's
Motion for Summary Judgment. The Administrators asserted that Ms. Hughes -Birch's
Motion for Summary Judgment is "a collateral attack" upon the Court's January 29, 2004
Judgment, in that it challenges the Court's finding of testator intent and interpretation of
the language indicative of that intent. The Administrators argue that the Motion for
Summary Judgment is Ms. Hughes -Birch's attempt to re -litigate matters that were
properly decided after a full trial on the merits and subject to a final and unappealed
judgment
Page 5 of 18
29. On October 12, 2005, the Court (Manzi, J.) denied the Motion for Summary Judgment
after hearing.
30. On October 28, 2005, Ms. Hughes -Birch filed a Notice of Appeal from the October 12,
2005 denial of her Motion for Summary Judgment. Ms. Hughes -Birch cited the relevant
issues as: failure to comply with G. L. c. 231A; fraud; fraud perpetuated on the court;
fiduciary duty; and laches.
31. On November 17, 2005, Ms. Hughes -Birch filed a Motion to Stay Pending Court of
Appeals Review.
32. On May 8, 2006, the Administrators filed a Motion for Acceptance of the 2006 Plan
(hereinafter "the 2006 Plan"). The Administrators requested that the Court approve the
plan showing that portion of the Real Estate which was to be conveyed to Ms. Hughes -
Birch. The Administrators asserted that the proposed plan was in accordance with the
January 29, 2004 Judgment, in that it showed Lot 2A, comprised of 3.310 acres of land to
be conveyed to Ms. Hughes -Birch. The Administrators further requested that the Court
order Ms. Hughes -Birch to pay outstanding real estate taxes of $18,950.64, associated
with Lot 2A, to the Town of North Andover. The Administrators stated that the Planning
Board of the Town of North Andover would not approve the 2006 Plan unless the
outstanding real estate taxes were paid. In the alternative, the Administrators requested
permission to pay the outstanding taxes from the Decedent's estate and that the estate be
granted an attachment upon Lot 2A equal to the amount of the taxes to secure repayment.
Finally, the Administrators requested that the Court order Ms. Hughes -Birch to remove
any personalty and/or livestock from any structures located on the surrounding land and
not to interfere with removal and restoration of structures on the surrounding land.
33. On May 9, 2006, the Administrators filed a Complaint for Civil Contempt alleging that
Ms. Hughes -Birch violated the December 23, 2004 Court Order by continuing to use the
premises without the consent of the Administrators. More specifically, the
Administrators contend that Ms. Hughes -Birch removed locks installed on the existing
barn, without the permission of the Administrators and failed to secure the requisite
insurance against risk associated with her continued use, and the public's continued use,
of the property.
34. On May 24, 2006, Ms. Hughes -Birch filed a Motion in Response to Plaintiff's May 8,
2006 Complaint for Contempt. Ms. Hughes -Birch requested that the Court dismiss the
Complaint pursuant to Mass. R. Civ. P. 12(b)(1), 12(b)(2) and 12(b)(6). Ms Hughes -
Birch contended that the Court lacked personal jurisdiction and that the Administrators
failed to state an actual controversy upon which relief can be granted. Ms. Hughes -Birch
also proposed that absent a final declaratory judgment, the Court was without jurisdiction
to grant relief pursuant to G. L. c. 231A, § 1.
Page 6of18
35. Also on May 24, 2006, Ms. Hughes -Birch filed a Motion in Response to Plaintiff's
Motion For Acceptance of Plan. Ms. Hughes -Birch again requested that the Court
dismiss the November 15, 2004 Complaint for Instructions pursuant to Mass. R. Civ. P.
12(b)(1), 12(b)(2) and 12(b)(6). Again, Ms. Hughes -Birch contended that the Court was
without jurisdiction to grant relief pursuant to G. L. c. 231 A, § 1 absent a final declaratory
judgment. In addition, Ms. Hughes -Birch stated that the Court was without jurisdiction to
authorize a subdivision of land, pursuant to G. L. c. 231 A, § 1 "without granting a Town
of North Andover Zoning official an opportunity to be heard on the matter."
36. On June 7, 2006, the parties filed a Joint Motion for Pre -Trial Conference on the
November 15, 2004 Complaint for Instructions. The Court (Sahagian, J.) allowed the
Motion on the same date and issued a Pre -Trial Notice and Order on June 8, 2006, which
scheduled the matter for September 5, 2006 at the Lawrence session.
37. Also on June 7, 2006, Ms. Hughes -Birch filed a Verified Amended Response to
Plaintiff's Motion for Acceptance of Plan. The Verified Amended Response included
background information on the case, and reiterated that the Administrators' did not
present an actual controversy upon which relief can be granted and that the Court was
without jurisdiction to hear the matter pursuant to G. L. c. 231A, § 1, et. seq.. In addition,
Ms. Hughes -Birch stated the following: that declaratory relief was inappropriate because
it could not "resolve the issue of land configuration in [the] case without a plan of land
that specifically relates to the land described by the deed with Paragraph Thirteen of the
will annexed to the plaintiff's Complaint for Instructions"; and that an order requiring
Ms. Hughes -Birch to pay back taxes was "ludicrous absent a relevant reference to a will
and impossible to enforce without a final declaratory judgment on their unprosecuted
Complaint for Instructions." In her Memorandum, Ms. Hughes -Birch cited to the
Administrators' failure to join the Town of North Andover as a party and stated that
"[e]ven if a final declaratory judgment ... issue[ed] ... it would not clear up the
uncertainty with regard to ... the availability of potable water; the rights of abutters to be
heard on matters involving wetlands, etc." Finally, Ms. Hughes -Birch contended that the
Administrators' requested permission to pay "attorneys fees with money, if used to pay
back taxes which presumably would be readily available after the Town of North
Andover relieves all parties from uncertainty and insecurity with respect to the matter
before this Court today."
38. On June 20, 2006, Ms. Hughes -Birch filed a Verified Motion to Dismiss Plaintiff's
Complaint for Contempt Pursuant to Mass. R. Civ. P. 12(b)(1), 12(b)(2), 12(b)(6) and
12(b)(7) and a Memorandum in Support of the Motion to Dismiss.
39. On July 27, 2006, after hearing, the Court (Cronin, J.) denied Ms. Hughes -Birch's
Motion to Dismiss Plaintiff's Complaint for Contempt, filed May 9, 2006.
40. On July 28, 2006, the Court (Cronin, J.) entered a Contempt Judgment on the Complaint
Page 7 of 18
for Contempt filed on May 8, 2006 by Edward F. Finnegan and Marshall L. Field,
Administrators of the Estate of Barbara B. Tighe against Stacey Hughes -Birch. The
Court found that Ms. Hughes -Birch was not in contempt because the alleged
contemptuous actions "were not previously made part of a `clear and unequivocal order."
The Court further noted, however, that although Ms. Hughes -Birch was not in contempt,
her conduct was "contrary to the spirit of the December 23, 2004 and March 9, 2005
orders." Accordingly, the Court ordered that, no later than August 12, 2006 at 5:00 P.M.,
Ms. Hughes -Birch "must cease and desist from entering into or in any way using of
occupying the structure(s) and land constituting lot three" and "shall remove from Lot 3
all animals, equipment and other personal property." In the event that Ms. Hughes -Birch
failed to comply with the orders contained in the July 28, 2006 Contempt Judgment, she
was ordered to pay sanctions to the Administrators of $50.00 per day, beginning on
August 13, 2006, and continuing each and every day thereafter until she is in full
compliance with the Contempt Judgment.
41. On August 1, 2006, Ms. Hughes -Birch filed a Verified Motion to Dismiss Plaintiff's
Complaint for Instructions wherein she repeated her request that the Court dismiss the
Complaint pursuant to Mass. R. Civ. P. 12(b)(1), 12(b)(2), 12(b)(6), and 12(b)(7). Ms.
Hughes -Birch asserted that the Court lacked personal jurisdiction and subject matter
jurisdiction, pursuant to G. L. c. 231A.
42. On August 8, 2006, Ms. Hughes -Birch filed a Notice of Appeal from the July 28, 2006
Contempt Judgment.
43. On September 5, 2006, the scheduled Pre -Trial Conference occurred before the Court
(Manzi, J.). Ms. Hughes -Birch did not attend the September 5, 2006 Pre -Trial
Conference.
44. On September 5, 2006, the Administrators filed a Pre-trial Memorandum.
45. Also on September, 5, 2006, the Administrators and co-defendant's, Sean T. O'Hearn,
James M. O'Hearn, Patrick J. O'Hearn, Thomas C. O'Hearn, Jessica B. Tighe, Chelsea B.
Tighe and Alexandra P. Tighe, filed an "Agreement for Judgment" which set forth the
following: that the 2006 Plan prepared for Decedent's Estate complies with the Court's
(Manzi, J.) December 23, 2004 and January 29, 2004 Order; that lot 2A as shown on the
2006 Plan "defines and incorporates all real property referenced in paragraph thirteenth"
of the Will and is to be conveyed to Ms. Hughes Birch; that the plan must be recorded
prior to effectuating the conveyance which required approval of the Planning Board of the
Town of North Andover; that all outstanding real estate taxes must be paid prior to
approval; the taxes due on Lot 2A total $22,592.13; Ms. Hughes -Birch is only entitled to
retain use and possession of Lot 2A. The Administrators and the Defendants prayed inter
alia that the Court accept the plan, order Ms. Hughes -Birch to pay the outstanding
property taxes, or in the alternative allow the Estate to pay the taxes and receive a lien
Page 8of18
against Lot 2A for the same amount.
46. Also on September 5, 2006, the Court (Manzi, J.) entered an Equity Judgment on the
November 15, 2004 Complaint for Instructions. That Judgment incorporated and merged
the Agreement for Judgment. The Court also entered an Order permitting counsel to
submit any relevant documents related to the Administrator's Motion for Attorney's Fees
on or before September 18, 2007.
47. On October 3, 2006, Ms. Hughes -Birch filed a Notice of Appeal from the September 5,
2006 Judgment. [See: paragraph 67 Re: Dismissal of this Appeal]
48. On October 30, 2006, Ms. Hughes -Birch filed a Motion for Stay Pending Court of
Appeals Review. Ms. Hughes -Birch specifically requested that the Court stay the
provision of the September 5, 2006 Equity Judgment that ordered "the eviction of animals
from their protection against winter weather" and "the razing of structures situated within
the boundaries described in the 1967 Deed specified in the testatrix's Will."
49. On November 3, 2006, the Administrators filed a Complaint for Civil Contempt wherein
they alleged that Ms. Hughes -Birch violated the March 9, 2005, July 28 and September 5,
2006 Orders of the Court by "[c]ontinuing open, exclusive and adverse use of the
structures on Lot 3, by denying the plaintiffs and their invitees access to the parcel, by
threatening arrest of plaintiff's and their ... invitees, by threatening their persons by
releasing her dogs against them, and by seeking to collaterally attack the court's order by
suing the Plaintiffs in Superior Court to enjoin them from carrying out the Probate
Court's Orders and Judgements." The Contempt was returnable on December 28, 2006.
50. On December 28, 2006, the Administrator's filed a Motion for Change of Venue for
Hearing Upon Plaintiffs' Complaint for Contempt. The Administrators requested that the
Court change the venue for the hearing of the Complaint from Salem to Lawrence, due in
part to judicial economy. The Administrator's stated that the file was "voluminous and
complicated" and that Judge Manzi was the appropriate individual to hear the matter
because of her four (4) year involvement in the case. The Administrator's also contended
that due to the location of the parties' residences, Lawrence was a more accessible venue.
51. On January 10, 2007, Ms. Hughes -Birch filed a Verified Motion in Opposition to
Plaintiff's Request for Change in Venue. Ms. Hughes -Birch challenged the motion
contending that "in reality it constitutes nothing more than "judge -shopping" for a judge
who is overtly biased in [the Administrators'] favor.
52. Also on January 10, 2007, the Court (Roach, J.) allowed the Administrator's Motion for
Change of Venue. The November 3, 2006 Contempt was re -scheduled for hearing on
March 19, 2007 before Manzi, J.
Page 9 of 18
53. On January 25, 2007, Ms. Hughes -Birch filed a Verified Motion for Recusal, wherein she
requested that Judge Manzi recuse herself from adjudicating any further matters relative
to the pending case.
54. On February 5, 2007, the Administrators filed a Motion to Dismiss Appellant's Appeal of
the September 5, 2006 Equity Judgment, for her failure to prosecute. That Appeal was
dismissed on May 23, 2007. [See: paragraph #67 Re: Dismissal of this Appeal]
55. On February 21, 2007, Ms. Hughes -Birch filed an Answer to the November 3, 2006
Complaint for Contempt and Affirmative Defenses.
56. On February 28, 2007, the Administrators filed a Memorandum in Support of their
February 5, 2007 Motion to Dismiss Appeal.
57. On March 19, 2007, co-defendant's, Sean T. O'Heam, James M. O'Hearn, Patrick J.
O'Hearn, Thomas C. O'Hearn, Jessica B. Tighe, Chelsea B. Tighe and Alexandra P.
Tighe filed a Memorandum in Support of the Administrator's Complaint for Contempt.
The Defendant's requested that the Court find Ms. Hughes -Birch in contempt of the
March 9, 2005, July 28 and September 5, 2006 Judgments and determine that Ms.
Hughes -Birch owes $10,950.00 in sanctions resulting from non-compliance with the
Court's July 28, 2006 Contempt Judgment. Furthermore, the Defendants requested that
the Court order Ms. Hughes -Birch to pay the Decedent's estate $10,950.00 immediately,
and incarcerate Ms. Hughes -Birch in the House of Correction until she pays the sanction
and removes all personal property, livestock and equipment from Lots 3A, 4A and 5B, as
represented on the February 21, 2006 real estate plan.
58. Also on March 19, 2007, the Court (Manzi, J.) entered an Order wherein the Court
declined "to take up the pending [Contempt] action, assigned by virtue of the individual
calendar in the Salem session, absent a reassignment by the 1St Justice; without reaching
the issues of the appeal pending."
59. On April 2, 2007, Ms. Hughes -Birch filed a Verified Motion for Relief from Judgment
Under Mass. R. Civ. P. 60(b)(3), (4). Ms. Hughes -Birch requested that the Court set
aside the September 5, 2006 Judgment for the following reasons: lack of jurisdiction
pursuant to G. L. c. 231A, §§ 1, 2, 3, 5, 8 and 9; pursuant to Mass. R. Civ. P, 60(b)(3) due
to fraud upon the Court; and pursuant to Mass. R. Civ. P, 60(b)(4) "because pretrial
default under [Mass. R. Civ. P.] 55 is not available in a declaratory judgment action
whose purpose under § 9 is to afford relief from uncertainty and insecurity intrinsic with a
contemplated trial."
60. On April 11, 2007, Ms. Hughes -Birch filed a Verified Motion for Relief from Judgment
Dated September 5, 2006 pursuant to Mass. R. Civ. P. 60 and a Statement of Facts and
Law regarding the Verified Motion for Relief from Judgment. Ms. Hughes -Birch argued
Page 10 of 18
that she was entitled to Relief from the September 5, 2006 Judgment based in part on the
following: the Court did not have jurisdiction to hear the matter pursuant to G. L. 231A, §
1, et. seq.; there was newly discovered evidence; that the Administrators' truly sought an
order requiring Ms. Hughes -Birch to vacate the premises and therefore did not allege an
actual controversy; that the September 5, 2006 Judgment was the product of a "Non -
Adversarial, Ex -Judicial Hearing"; the September 5, 2006 Judgment is Void; and that the
September 5, 2006 Judgment was the product of fraud.
61. On April 30, 2007, Ms. Hughes -Birch filed a Verified Motion regarding Mass. R. Civ. P.
60(b) Motion wherein she informed the Court (Manzi, J.) that the Appeals Court had
granted the Probate and Family Court leave to consider the post judgment motion.
62. On May 10, 2007, the Defendant's filed a Statement in Opposition to Ms. Hughes -Birch's
April 11, 2007 Motion for Relief from Judgment. The Defendants alleged that Ms.
Hughes -Birch did not meet her burden. The co-defendant's, Sean T. O'Hearn, James M.
O'Heam, Patrick J. O'Hearn, Thomas C. O'Heam, Jessica B. Tighe, Chelsea B. Tighe
and Alexandra P. Tighe, sought dismissal of Ms. Hughes -Birch's Motion and $700.00 in
costs and legal fees.
63. On May 10, 2007, the Court (Manzi, J.) denied Ms. Hughes -Birch's Verified Motion for
Relief from the September 5, 2006, noting that "there is no reasonable basis to grant the
relief sought."
64. On May 16, 2007, Ms. Hughes -Birch filed a Motion to Dismiss the Defendant's
Statement in Opposition to the April 11, 2007 Motion for Relief from Judgment. In
support of her Motion, Ms. Hughes -Birch cited: laches; no beneficial interest; newly
discovered evidence; fraud on the court; defendants' are the plaintiffs' dutiful
representatives; defendants' defense of plaintiffs' illicit purpose; plaintiffs' evidence is
irrelevant; prior judgment not an issue; and defendants' were neither served with nor
answered plaintiffs' complaint. Ms. Hughes -Birch's Motion further elaborated on each
ground and concluded that "a reasonable person would believe that only a Court
prejudiced against STACEY would accept [the Defendants'] late filed response." Ms.
Hughes -Birch requested that the Court dismiss the late filed response and sanction the
Defendants counsel "for filing an irrelevant pleading for no other purpose than to
continue to delay the transfer of title that STACEY has been entitled to for more than four
years."
65. On May 21, 2007, Ms. Hughes -Birch filed a Verified Motion for Reconsideration of the
May 10, 2007 denial of her first Motion for Reconsideration. In support of the Motion,
Ms. Hughes -Birch argued that "Manzi, J. abused her discretion by denying Stacey's
request and in any event she is without discretion because the underlying judgment is
void for lack of subject matter and personal jurisdiction." Ms. Hughes -Birch further
contends that Judge Manzi was mandated to grant the relief sought in the Motion for
Page 11 of 18
Reconsideration because the Administrator's did not filed an opposition and therefore
failed to comply with Standing Order 2-99.
66. Also on May 21, 2007, Ms. Hughes -Birch filed a Verified Motion. Requesting that Judge
Manzi Recuse and Disqualify Herself From Adjudicating Matters Relevant to the Case.
Ms. Hughes -Birch alleged that Judge Manzi "violated the law and her judicial duty" by
denying the "unopposed" 60(b) Motion and ruling "against Stacey."
67. On May 23, 2007, Ms. Hughes -Birch's Appeal from the September 5, 2006 Judgment
was dismissed for lack of prosecution.
68. On June 8, 2007, Ms. Hughes -Birch filed a Notice of Appeal from Judge Manzi's May
10, 2007 denial of her Motion for Relief from Judgment.
69. On June 11, 2007, Ms. Hughes -Birch filed a Motion for Approval of Record on Appeal
requesting inclusion of the April 11, 2007 Motion for Relief from Judgment and the May
10, 2007 denial of the Motion for Relief from Judgment.
70. On June 12, 2007, the Court (Manzi, J) denied the May 21, 2007 Verified Motion for
Reconsideration. That denial was affirmed by the Appeals Court on December 5, 2008.
71. On June 14, 2007, the Administrators filed a Response to Ms. Hughes -Birch's Motion for
Approval of Record on Appeal. The Administrators agreed that "inasmuch as no hearing
upon the defendant's Motion for he
from Judgment was held, no transcript of such
proceeding can be required." The Administrators further requested that "in addition the
plaintiff's Motion for Relief from Judgment and the Court's decision thereon, the record
on appeal must also include the underlying judgment of the Court in this action rendered
on September 5, 2006, from which defendant sought relief, the entire docket of this
proceeding and all pleadings filed therein."
72. On June 15, 2007, the Administrators filed a Motion for Assignment of Hearing Upon
Plaintiff's Complaint for Contempt, filed on or about November 2, 2006, to Judge Mary
M. Manzi. The content of the Motion reiterated that of the December 28, 2006 Motion for
Change of Venue for Hearing.
73. On June 25, 2007, Ms. Hughes -Birch filed a Notice of Appeal from the June 12, 2007
Court Order which denied her Motion for Reconsideration of the denial of the May 10,
2007 Motion for Relief from Judgment.
74. Also on June 25, 2007, Ms. Hughes -Birch filed a Second Motion Requesting that Judge
Manzi Recuse and Disqualify Herself from Adjudicating the Matters Relevant to This
Case.
Page 12 of 18
75. On June 27, 2007, Ms. Hughes -Birch filed a Verified Motion to Dismiss for Failure to
Comply with Standing Order 1-06 Titled, Case Management and Time Standards for
Cases filed in he Probate and Family Court Department
76. On July 3, 2007, Ms. Hughes -Birch filed a Response to the Administrators' Motion for
Assignment of Hearing Upon the Administrators' Complaint for Contempt,-
77.
ontempt
77. On July 10, 2007, the Court (Sahagian, J.) denied the Administrator's June 15, 2007
Motion for Assignment of Hearing before Judge Manzi.
78. Also on July 10, 2007, Ms. Hughes -Birch filed a Motion requesting that the Court
"Revisit her Motion Requesting Relief from Judgment." In support of her motion, Ms.
Hughes -Birch stated that Judge Manzi presided over the action "until June 6, 2007 when
she disqualified herself, pursuant to Mass. R. Civ. P. 8(d), by failing to respond to my
averments that she failed to maintain an appearance of impartiality pursuant to the Code
of Judicial Conduct, Cannon 3E(1)." Ms. Hughes -Birch requested that the Court revisit
the denial of the Motion for Relief from Judgment and determine whether it was proper in
light of the alleged disqualification.
79. Also on July 10, 2007, Ms. Hughes -Birch filed a Request to Withdraw her Second
Motion Requesting that Judge Manzi Request and Disqualify Herself, stating that Judge
Manzi already disqualified herself and therefore the issue was moot.
80. On July 11, 2007, the November 3, 2006 Contempt was rescheduled for hearing on
August 30, 2007.
81. On July 20, 2007, a Notice of Assembly of Record of Appeal entered on the Probate and
Family Court Docket.
82. On July 26, 2007, the Appeals Court issued a Notice of Entry.
83. On August 9, 2007, Ms. Hughes -Birch filed a Motion to Dismiss the Administrators'
Complaint for Contempt pursuant to Mass. R. Civ. P. 41(b)(2), involuntary dismissal
upon the motion of the defendant., whereby the Court determines that the plaintiff failed
to prosecute or comply with the Massachusetts Rules of Civil Procedure. Ms. Hughes -
Birch also alleged that dismissal was appropriate under Probate and Family Court
Standing Order 1:04 (11) which requires that a hearing on a complaint for contempt shall
be set for no later than twenty-eight (28) days after filing. The underlying complaint for
contempt which Ms. Hughes -Birch sought to have dismissed was filed November 3. 2006
but not schedule for hearing until August 30, 2007. Ms. Hughes -Birch recited that in the
interim she "lost her claim of title to land described in the Deed to the Town of North
Andover" and that the "Plaintiff's relied on the Probate and Family Court's failure to
enforce Standing Order 1:04(11) to coerce Stacey into purchasing land devised to her by
Page 13 of 18
name in a probated will."
84. On August 13, 2007, Ms. Hughes -Birch filed a Verified Answer and Affirmative Defense
to the Administrators' Complaint for Contempt, filed November 3, 2006.
85. Also on August 13, 2007, the Defendants' filed a Memorandum in Support of the
Administrators' Complaint for Contempt. The Defendants' requested that the Court
order Ms. Hughes -Birch pay $19,150.00 to Decedent's Estate and that Ms. Hughes -Birch
be incarcerated in the House of Correction until she pays the required sanctions and
removes her personal property, livestock and equipment from Lots 3A, 4A and 5B, on the
2006 Plan.
86. On August 20, 2007, Ms. Hughes -Birch filed a Motion to Dismiss the Administrators'
Complaint for Contempt as a Matter of Public Policy.
87. On August 27, 2007, William N. Hurley filed a Motion to Quash Subpoena.
88. On August 29, 2007, Ms. Hughes -Birch filed a Verified Motion to Dismiss Attorney
William N. Hurley's Motion to Quash Subpoena Duces Tecum.
89. On August 30, 2007, the November 3, 2006 Contempt was scheduled by the trial court on
Judge Cronin's Contempt list, along with twenty-seven (27) other matters. The Court
met briefly with the parties on the record at approximately 10:00 A.M. and again at 10:30
A.M in an effort to clarify the issues before the Court. When the case was called for trial
at approximately 11:30 A.M., counsel informed the Court that Ms. Hughes -Birch had
complained of chest pains and was taken to the hospital. The matter was re -scheduled to
a trial day on Monday, December 17, 2007 at 9:00 A.M. at Salem before Judge Cronin.
90. On September 6, 2007, The Administrators' filed a Motion for Issuance of Execution,
requesting that the Court issue an execution in accordance with the terms of the
September 5, 2006 Judgment.
91. On September 10 2007, Ms. Hughes -Birch filed a Motion for Injunction and Restraining
Order and requested it be scheduled for hearing on September 12, 2007.
92. On September 12, 2007, Ms. Hughes -Birch and counsel for the Administrators agreed to
re -schedule the hearing on Ms. Hughes -Birch's Motion for Injunction and Restraining
Order to October 3, 2007 at 9:00 A.M. in Salem.
93. On October 3, 2007, the Court (Cronin, J.) conducted a forty (40) minute hearing on the
Motion for Injunction and Restraining Order. Attorney Hurley was present representing
the Administrators. Ms. Hughes -Birch was present and proceeded pro -se. Ms. Hughes -
Birch's father was also present throughout the hearing.
Page 14 of 18
94. On November 9, 2007, the Court (Cronin, J.) denied Ms. Hughes -Birch's request for
Preliminary Injunction.
95. On February 7, 2008, the Court (Cronin, J.) entered a Judgment on the Complaint for
Civil Contempt, filed on November 3, 2006 by the Co -Administrators of the Estate of
Barbara Tighe against Stacey Hughes -Birch. The Court found Ms. Hughes -Birch guilty
of civil contempt for violating the "clear and unequivocal" terms of the July 28, 2006
Judgment and the September 5, 2006 Judgment. Further, the Court entered the following
Order:
A. Not later than March 15, 2008, Defendant shall pay to the Administrators the sum
of $26,850.00 representing past -due sanctions owed for her willful non-compliance
with the July 28, 2006 Contempt Judgment. (That amount was arrived at by
multiplying 537 days (August 13, 2006 to January 31, 2008 = 537 days) by $50.00
per day.)
B. Not later than February 29, 2008 at 4:00 p.m:
1. Defendants and her agents, employees, assigns, lessees, licensees and anyone
claiming through her (collectively the "Defendant") shall cease and desist from
entering into or in any way using or occupying any portion fo the structure(s) or
land consisting of and shown as Lots 3A, 4A, or 5B on a plan of land titled.
"Plan of Land in North Andover, Mass. Prepared for the Estate of Barbara
Tighe, 95 Lacy Street, Scale 1" = 40; Date: February 21, 2006". (Said Plain was
entered into evidence as Exhibit #5); and
2. Defendant shall remove from Lots 3A, 4A, and 5B all horses, livestock, other
animals, and other personal property of Defendant.
C. In the event that Defendant -Hughes-Birch fails to comply in full and on time with
the requirements of the immediately preceding paragraphs number 2A and 2B, she
shall forthwith, and without the need for any further order from the court, pay daily
sanctions to the Co -Administrators of the Estate of Barbara Tighe in the amount of
$200.00 per day beginning on March 1, 2008 and continuing on each and every day
thereafter until she is in full compliance with the requirements of paragraphs 2A
and 2B above.
D. The Co -Administrators of the Estate of Barbara Tighe are hereby provided with a
Judicial Lien on Ms. Hughes -Birch's interest, if any, in the real estate shown as Lot
2A on the 2006 Plan of Land described at paragraph 2A, above, in order to secure
timely payment to the Estate of all sums owed to it pursuant to the terms of this
Judgment. If the Co -Administrators require any further documentation to establish
and perfect this judicial lien, they may submit it to the court, with notice to Ms.
Hughes -Birch, for the Court's consideration.
Page 15 of 18
96. On May 28, 2008, the Court (Cronin, J.) entered a Memorandum of Decision, denying
Ms. Hughes -Birch's Motion for Reconsideration (of Order Denying Recusal).
97. On July 11, 2008, the Court (Cronin, J.) entered an Order, denying Defendant Stacey
Hughes -Birch's oral Motion for Recusal in the Civil Contempt action, filed June 9, 2008.
98. On October 2, 2008, the Court (Cronin, J.) entered a Judgment of Dismissal, dismissing
without prejudice the Complaint for Contempt dated June 9, 2008.
99. On February 4, 2009, the Appeals Court for the Commonwealth filed a rescript dated
December 5, 2008, ordering that the following entry be made on the docket of this Court:
"Order dated May 10, 2007, denying motion for relief from judgment affirmed. Order
dated June 12, 2007, denying motion for reconsideration affirmed."
100. On February 12, 2009, the Court, by Register of Probate, entered a Judgment After
Rescript, ordering and adjudging that the Orders dated May 10, 2007 and June 12, 2007
are affirmed and a judgment consistent with the terms of the opinion of the Appeals Court
on file herewith be entered.
101. On September 22, 2009, Marshall Field, Administrator of the Estate of Barbara Tighe,
filed a Complaint for Civil Contempt against Stacey Hughes -Birch. The Administrator
alleged that Ms. Hughes -birch violated the Orders of the Court, dated July 28, 2006,
September 5, 2006, and February 7, 2008, under which she was required to remove her
property and property of those claiming occupancy through her from lots 3A, 4A, and 5B.
Further, the Administrator alleged that Ms. Hughes -Birch had failed to pay the sums to
the Estate of Barbara Tighe, as ordered by the March 16, 2008 and owed an outstanding
sum of $163,242.16.
102. On September 29, 2009, Ms. Hughes -Birch filed a Verified Motion for Summary
Judgment on Complaint for Contempt Dated September 21, 2009.
103. On September 30, 2009, Mr. Field filed an Opposition to Ms. Hughes -Birch's Motion for
Summary Judgment on Complaint for Contempt Dated September 21, 2009.
104. On October 7, 2009, the Appeals Court affirmed the Court's (Cronin, J.) February 7, 2008
Contempt Judgment. On December 3, 2009, the Supreme Judicial Court Denied Ms.
Hughes -Birch's Request for Further Appellate Review.
105. On November 10, 2009, the Court (Cronin, J) entered an Order After Contested Hearing,
denying Ms. Hughes -Birch's Motion for Summary Judgment on Complaint for Contempt
Dated September 21, 2009.
Page 16 of 18
adjudicated in 02P2876EP1 and 04E0083GC1 and therefore the doctrine of collateral
estoppel renders the Court unable to provide the requested relief. Docket number
02P2876EP 1 resulted in a final judgment entered on January 29, 2004, which was not
appealed and docket number 04E0083GC1 resulted in a Judgment on September 5, 2006,
which was dismissed on appeal, and twice denied reconsideration.
117. On August 7, 2007, Ms. Hughes Birch filed a Verified Motion for Summary Judgment
and Memorandum in support thereof. Ms. Hughes -Birch requested Summary Judgment
on the July 10, 2006 Equity Complaint enter in her favor as "[t]here is no dispute between
the parties on the matter in as much as defendants did not file an answer" to the
Complaint.
118. On August 28, 2007, the Administrators filed an Opposition to Plaintiff's Motion for
Summary Judgment.
119. On September 6, 2007, the Administrators filed a Notice of Withdrawal of the August 6,
2007 Motion to Dismiss Plaintiff's Complaint. In lieu of the Motion to Dismiss, Plaintiff
filed Plaintiff's Answer and Counterclaim.
120. On September 26, 2007, Ms. Hughes -Birch filed a Verified Motion for Summary
Judgment, reiterating in large part the content of the August 7, 2007 Verified Motion for
Summary Judgment.
121. On October 5, 2007, the Administrators filed a Cross Motion for Summary Judgment, an
Affidavit of Marshall L. Field in Support of Defendant's Cross Motion for Summary
Judgment, and a Memorandum in support of the Motion for Summary Judgment.
122. On October 10, 2007, the Court (Cronin, J.) Conducted a hearing on the Cross -Motions
for Summary Judgment.
123. On November 26, 2007, the Court (Cronin, J.) entered a Memorandum of Decision and
Order, denying the parties' Cross -Motions for Summary Judgment, filed on September
26, 2007 and October 5, 2007.
Date: J'. at &P-0
Page 18 of 18
P. Cronin, Justice
tte and Family Court