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HomeMy WebLinkAboutE Z CONSTRUCTION COMMONWEALTH OF MASSACHUSETTS ESSEX sL SUPERIOR COURT CIVIL ACTION No. E Z Sore eT Cay%S1Qh+t7]dn r XiJC . _.......... ............................ ......_.._ - -...... ..._._,Plaintiff(s) V. 9 Lr-, SaMe5... ------ ................. Defendant(s) SUMMONS AND ORDER OF NOTICE To the above-named Defendant: You are hereby summoned and.required to serve upon ?"(n a j f> Z. M R a be AJ plaintiff's attorney, whose address is.2 3 Ce A.PMA L S1ra e t , A-nD o veR , A4A o 4 t o an answer to the complaint which is herewith served upon you, within.20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken'against you for the relief demanded in the complaint. You are also required to file your:answer to the complaint in the: office of the Clerk of this court at S'" ''1 either before service upon plaintiff's.attorney or within a reasonable time thereafter. Unless otherwise provided .by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is thesubject matter of the plaintiffs claim or you will thereafter be barred from making such claim'in any other action. WE ALSO NOTIFY YOU that application has been made in said action, as appears in the complaint, for areliminary injunction and that a hearing upon such application will be held at the court house at said yy in the session without jury of our said court on t'f+p A the SBC-0rJD day of C1 MCF-A^%2-(Z A. D. 19'83 , at eT = 3o AM o'�ock A. M., at which you may appear and show cause why such ap 'cation should not be granted. `y- _mZ$ .' 018e, quire, at Salem, the -f�✓e.+t`t- •`� ., s day of rbec a mbe ,in the year of our Lord one thousand nine hundred and law_,Fkn,� COVI JAIto Clerk. 0010 NOTES: 1. Ibis summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption. If a separate summons is used for each defendant, each should be addressed to the particular defendant. COMMONWEALTH OF o 5 . MASSACHUSETTS �z n t� ESSEX,ss.- SUPERIOR COURT C w a CIVIL ACTION �* Na ;v O �t� ►C - IV Z O 00 8 ........................... ............................ a o Plaintiff(s) r an a rA ti. z � m � c ._._............................................................................... ,� n nefenaant(s) °z I, n CA ! < & i o � SUMMONS ! 12, (Mass. R.Civ.P.4) cn WrA AND z ORDER OF NOTICE zz ! ON f ! m - APPLICATION FOR PRELIMINARY I INJUNCTION } $. i t ! COMMONWEALTH OF MASSACHUSETTS ESSEX, SS: SUPERIOR COURT E Z Street Construction, 'Inc. Plaintiff VS. John James, Paul A. COMPLAINT Hedstrom, John Burke, Eric Nitzke & Micheal Roberts, as they are Members of the Planning Board of North Andover and the Town of North Andover , William A. Cyr as he is Highway Surveyor of the town of North Andover, Massachusetts. Defendants 1. The plaintiff is a duly organized corporation with a principle place of business in North Andover, Mass . 2. The defendants John James, Paul A. Hedstrom, John Burke, Eric Nitzke &Michael Roberts are adult individuals who reside in North Andover, Massachusetts and who are members of the Planning Board of North Andover. 3. The defendant William A. Cyr is an adult individual residing in North Andover and is the Highway Surveyor of the Town of North Andover. 4. The defendant's town of North Andover is a duly organized municipal body. LAW OFFICES OF REGINALD L-MARDEN. P.C. A3 CENTRA(.GTREET ANDOVER,MAGE.0t410 TEU (4t71 P670.0477 FactualBackground 5. On or about September 14, 1982 the plaintiff posted with the defendants a mortgage bond to secure its completion of Bonny Lane, a road in the town of North Andover, as provided for by MGL C41 Sec 81U. 6. MGL C41 Sec 81U provides, in part: "The penal sum of any such bond shall bear a direct and reasonable relationship to the expected cost including the effects of inflation , necessary to complete the subject work. Such amount or amounts shall from time to time be reduced so that the amount bonded, deposited or retained continues to reflect the actual expected cost of work remaining to be completed. " 7. On December 22, 1982 the defendant Planning Board set forth what work the plaintiff had to complete . A copy is attached as Exhibit "A". The plaintiff has completed all work with the exception of relocating utility pole (it cannot move it on to someone else ' s property) ; installing a street sign; and regrading approximately 5% of the shoulder as is is awaiting direction by William Cyr as� to how he wants it done. 8. From time to time the plaintiff requested the defendants to release certain sums from the mortgage bond and on September 26, 1983 the defendant William A. Cyr recommended the release of $25,400.00 leaving a balance of $10,865.00. The Planning Board then authorized said release. LAW OFFICES OF REGINALD L MARDEN.P.C. 23 CQITRAL 0TR66T ANDOYRR. MA".01010 - TEN [0171 470-0477 l 9. The plaintiff has been informed by the defendant William A. Cyr that the following is being held: 1. $1 ,000 for the completion of, Rip rap, grading around gas trap , storing, landscaping and head walls 2. $200 cleaning box and basins 3. $800 sweeping and cleaning 4. ,$1 ,500 Berm 5. $300 Stone bounds 6. $4,000 Shoulders, grading, seeding and regrading 7. $65 Street sign 8. $3,000 retainer 10. The plaintiff had completed the Berm, sweeping and cleaning, work around the gas trap prior to September 26, 1983 and it requested on October 20, 1983 that the sums held for these items be released along with $2,000 of the retainer. 11. The defendant Planning Board did not respond to said request but voted to demand the bond posted by the plaintiff with the Andover Savings Bank. 12. The Andover Savings Bank has paid to the defendants the sum of $10,865 it was holding as the bond. The plaintiff believes it will cost approximately $465 to complete the work. 13. The plaintiff completed all of the work other than the street sign and the grading of a portion of the shoulder of the road and the relocation of the utility pole but, the defendant will not release said money. 14. The plaintiff is an aggrieved party within the meaning of MGLC 41. LAW OFFICES OF RE6INAL9 L MARDEN.P.C. "CENTRAL STREET ANDOVER,N&M. 01610 TELA 0171 470-"77 5 l The action of the defendant Planning lanni Board and the . 9 defendant William A. Cyr has exceeded their authority in demanding the bond as: 1. The amount of the bond is greatly in excess of the cost of completing of the work. 2. They have refused to release sums held for work which was completed. 3. They have required a "retainer" for which they are without legal authority to require. 4. They have violated MGL C41 Sec 81U. Count I 16. The plaintiff realleges each of the allegations of paragraph 1-15 above. 17. The actions of the Planning Board in demanding the plaintiff ' s bond exceeded their authority for the reasons set forth in paragraph 15 above. 18. As a result of the defendant 's actions, its decision to demand the bond is void and is a nullity. Wherefore the plaintiff demands: 1. That this court find that the defendants have exceeded their authority in demanding the plaintiff 's bond. 2. That this court void said decision . 3. That the defendants be ordered to return the bond to the plaintiff. 4. That this court order such other relief as it deems ,just and appropriate. Count II 19. The plaintiff realleges each of the allegations set fourth above. 20. There exists a controversy between the parties within the meaning of MGL C 231A. LAW OFFICES OF REGINALD L MARDEN.P.C. M DENTRAL STREET ANDOYER.M"S.03010 TELL 0!771170.0{77 21. Said controversy includes : (a) The authority of the defendants to require a "retainer". (b) The amount of money if any, the defendant is entitled to retain. (c) The authority of the defendant to demand the plaintiff's bond. Wherefore the plaintiff demands: 1. That this court determine the rights of the parties which are in dispute as set forth in paragraph 21 above. 2. That this court determine the rights of the parties in the bond posted by the plaintiff. 3. That this court order such other relief as this court deems just and appropriate . Count III (Mandamus) 22. This count is brought pursuant to MGL C249 Sec 5 for what was formally known as mandamus against the individual defendants as they are members of the Planning Board and the Highway Surveyor . 23. The defendants have a legal duty , pursuant to MGL C 41 Sec 81U to release sums from a mortgage bond when work is completed and to hold only such funds reasonably necessary to complete work on the ways. 24. The defendants, in breach of this duty and in violation of MGL C 41 Sec 81U have refused to release all but sums necessary ,to complete the work, have retained an excessive amount of the mortgage bond , has held money in addition to sums reasonably necessary to finish the work and have demanded the plaintiff's bond. LAW OFFICES OF REGINALD L MARDEN.P.C. ED CENTRAL STREET ANDOVER. MMS.02826 TCL• (627)470434" Wherefore the plaintiff demands : 1. That or the defendants be ordered to carry out their duties and responsibilities pursuant to MGL C 41, Sec 81U. 2. That the defendants be ordered to release to the plaintiff all but the sum necessary to complete the work on Bonny Lane, North Andover, Massachusetts. 3. That the defendants be required to account to the plaintiff for all sums expended on the completion of Bonny Lane, North Andover, Massachusetts. Count IV 25. The plaintiff realleges each of the allegations set forth above. 26. The plaintiff has been informed by the defendant Cyr that the only reason the bond has been demanded was that the .plaintiff requested a release of additional money for work completed shortly after receiving a release. 27. The plaintiff has also been informed that the defendant William A. Cyr intends to immediately complete the work he feels has not been done including, items which the plaintiff believes it has completed. 28. If the defendant is allowed to expend the plaintiff's bond money to do work which is unreasonable , unnecessary and not covered by MGL C 41 Sec 81U the plaintiff will suffer irreperable injury. 29. The continued violation of MGL C 41 Sec 81U is causing the plaintiff irreperable harm. 30. The plaintiff has no adequate remedy at law. Wherefore the plaintiff demands: 1. That upon the inssuance of an order of notice a preliminary injunction issue restraining the defendants from: LAW_OFFICES OF REGINALo L MARDEN.P.C. AS CENTRAL STREET ANDOVER,MARE.*talc TELA @171.00.0477 t. (a) expending any sum of money from the plaintiffs bond to complete any items other than the steet sign. (b) performing any work, other than erecting the street sign, on Bonny Lane. (c) refusing to of provide to the plaintiff within 5 days an itemized list of work the defendants believes is incomplete pursuant to MGL C 41 Sec 81U and an exact calculation of the sums it believes are necessary to complete the work. (d) refusing to release to the plaintiff all sums in excess of those set forth in the calculation pursuant to paragraph (c) above. (e) refusing to release to the plaintiff all sums held as a "retainer" . ,2. That a permanant injunction issue pursuant to par 1 above.. 3. That this court order such other relief as it deems just and appreciate. E Z Construction, Inc. by their attorney , Reginald L. Marden, P.C. LAW OFFICES OF REGINALD L. MARDEN, P.C. 23 Central Street LAW OFFICES OF Andover, Mass. 01810 REGINALD L MARDEN.P.C. Tel: 470-0477 "CENTRAL/ RKKT ANDOYLR.UAii.01010 TEL"40171 470w77 . P6AhGIGG 80AG0 TOWN OF WORTH ANDOVER MASSACHUSETTS g f t y +id i December 22 , 1982 Mr. V . Scott Follansbee , President E . Z. Street Construction , Inc . P . 0. Box 398 North Andover, Mass 01845 Re : Hardtcourt Estates Subdivision (Bonny Lane) North Andover , Mass, Dear Mr. Follansbee : 'l The North Andover Planning Board has determined that the con- struction of Hardtcourt Estates Subdivision and installation of municipal services has not been completed and , therefore, fails to comply with the Rules and Regulations Governing the Subdivision of Land in North Andover , Massachusetts . As a result of the applicant' s failure to perform the required work by the completion date of November, 15 , 1982 , the Planning Board voted at its regular scheduled meeting on December 6 , 1982 to enforce the bond , as provided in ,M .G .L . Chapter 41 , Section 81Y. The following details _where the construction and/or installa- tion fails to comply with the town ' s Rules and Regulations : 1. Sedimentation (grease-gas ) Trap : - Certified reinforced concrete cover for sedimentation/ grease vault with required manhole covers ; In lieu of reconstruction four (4) 36 ,inch manhole open- ings , including frames and covers are required. The re- inforced concrete slab over entire structure must meet H2O wheel load design specifications . 2. Around gas trap : Rip-rap (18 inch diameter) , proper grading , stoning , land- scaping , with required headwalls . 3. Clean sedimentation , grease trap and basins . 4. Sweep and clean street according to Town Highway Department standards . Mr. V. Scott Follansbee December 22 1982 Page 2 5 . Great Pond Road/Bonny Lane intersectioni - Open up radius; to achieve proper site distance and . alignment; Relocate utility pole off street layout. 6. Level and patch entiresubdivision road. Finish patch Great Pond Road where utilities were tied in at trenches . 7. Raise structures to accomodate finish coat of pgvement. 8. Gravel overlaps and provide stabilized shoulder grading .and re-grading where needed with required loam and seeding . v 9. Incorporate subdrain at Eastern side of cul -de-sac to alleviate leaching from Eastern slope on to roadway. 10. Place required 200 feet of berm toward _cul -de-sac. Add 1k feet of hottop to extend binder coat to get proper base for berm. 11 . Install stone bounds . 12 . Fix driveway entries on Lots No. 9a , 10 , 3 , and 12 , re- spectively ; e- spectively ; 10 , 23 , 54, and 21 Bonny Lane . 13. Installation of street sign with required "Private Way" designation . 14 . Apply finish coat of hottop . In addition , the applicant has neglected to clean the drainage system and sumps as requested and required by the Town. Any further repair work discovered during the interim of recon- struction or installation of services shall be corrected if found not to be in compliance with the Rules and Regulations . Sincerely, fT a�.-e Q •, ������""s Paul A. Hedstrom , Esq . , Chairman cc Highway Surveyor Board of Public Works Town Counsel Andover Savings Bank Attorney Timothy Hatch COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION No. F._Z.....-S4f.:.e T_...�rns?Qc&.77& 1 rT.ic.._......_.......Plaintiff(s) ......J.�... ........................................2� ........Defendant(s) SUMMONS AND ORDER OF NOTICE To the above-named Defendant: You are hereby summoned and.required to serve upon k"f n rA MAI?DO IJ plaintiff's attorney, whose address is,,4 3 eeN rfto%L A-nD ovist , A4A 019"0 an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken'against you for the relief demanded in the complaint. You are also required to file .your answer to the complaint in the. office of the Clerk of this court at s+usry either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided .by Rule 13(a), your answer must state as a pounterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim or you will thereafter be barred from making such claim in any other action. WE ALSO NOTIFY YOU that application has been made in said action, as appears in the complaint, for a preliminary injunction and that a hearing upon such application will be held at the court house at said C ID in the session without jury of our said court on fR i A A the SeeonD� day of A. D, 1983 , at 9 -' 3o AM dclock A. M., at which you may appear and show cause why such ap lication should not be granted. Cy omas $, MOP6 e, mss, E'sqxfire, atr , the -160 .'r-. day ofeGer+�4eily� - , in the year of our Lord one thousand nine hundred and �` G Y `►�^Q" C°or 4 A Clerk. cooOWN �� NOTES: 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption. If a separate summons is used for each defendant,;each should be addressed to the particular defendant.