HomeMy WebLinkAboutLegal Document - 250 BRIDLE PATH 6/30/1999 URBELIS, FIELDSTEEL Sc BAILIN, LLP
155 FEDERAL STREET Andover Office
BOSTON, MASSACHUSETTS 02110-1727 26 Chestnut Street
Andover,NIA 0 18 10-3 600
Telephone 978-475-4552
DEVRA G.BAILIN Telephone 617-338-2200 Please Send Correspondence
E-MAIL:dgb @ufb.com Telecopier 617-338-0122 To Boston Address
June 29, 1999
Heidi Griffin CI'V
Town Planner
Town of North Andover
27 Charles Street JAN 3 1999
North Andover, MA 01845 NORTH ANOOVe-p
PL.ANNINQ U�M9TMgNT
Re: Henry Kucharzyk, Trustee of HEFCO Realty Trust.
Vs: The Planning Board of the Town of North Andover
Misc Case No. 249120
Dear Heidi:
Per our telephone conversation today,please find enclosed for your signature the
Answers to Interrogatories in the above matter. As we discussed, I corrected the grammatical
error in the answer to number 11. Kindly sign the Answers and return them to me for forwarding
along to Mr. McCarron.
Thanks again for your assistance.
Sincerely,
Devra G. Bailin
DGB/rg
Enclosure
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. LAND COURT DEPARTMENT
OF THE TRIAL COURT
MISC. CASE NO. 249120
..............................................................................................................................
HENRY KUCHARZYK, TRUSTEE OF HEFCO
REALTY TRUST,
Plaintiff, DEFENDANTS' ANSWERS TO
V. PLAINTIFF'S FIRST REQUEST FOR
INTERROGATORIES TO THE DEFENDANT
RICHARD S. ROWEN, ALISON LESCARBEAU, PLANNING BOARD OF NORTH ANDOVER
JOHN SIMONS, RICHARD NARDELLA AND JOHN
V. MAHONEY, AS THEY CONSTITUTE THE
PLANNING BOARD OF THE TOWN OF NORTH
ANDOVER,
Defendants
.....................................................................................................................
Richard. S. Rowen, Alison Lescarbeau, John Simons, Richard Nardella and John V.
Mahoney, as they constitute the Planning Board of the Town of North Andover (hereinafter
collectively referred to as "the Board"), object to any interrogatory which and to the extent that it
makes inquiry into materials or information covered by one or more of the following privileges:
A. Attorney-client privilege;
B. Work product immunity and mental impressions of counsel;
C. Materials prepared in anticipation of or for litigation; and
D. Materials prepared for or at the request of or by any experts retained by the Board,
its attorneys, agents or representatives.
SPECIFIC RESPONSES1
1. Please identify the person answering these interrogatories.
1 All specific Answers to Interrogatories are subject to the general objections set forth above.
sAivp51\work\n-andove\kuckarzy\interrog.ans I June 29,1999
ANSWER: Heidi Griffin, Town Planner for the Town of North Andover, 27
Charles Street,North Andover,Massachusetts.
2. Please identify every other person who participated or consulted in the preparation
of these interrogatories including the specific interrogatory answers which he or she participated in
answering or was consulted upon.
ANSWER: In addition to consulting the documents related to this matter, I
consulted with counsel in the preparation of these interrogatory answers.
3. Please state the name, address, occupation, educational background, and
professional background of each of the members of the North Andover Planning Board.
OBJECTION: In addition to the general objections set forth above, counsel for the
Board objects to this Interrogatory to the extent it requests the educational background, occupation
and professional background of each of the Board members on the grounds that the information it
seeks is irrelevant, immaterial and unlikely to lead to discovery of admissible evidence and seeks
information outside the scope of permissible discovery.
ANSWER: Subject to and without waiving the general and specific objections set
forth above, the members of the Board at the time the decision in this matter were: Richard S.
Rowen, Chairman, who resides at 102 Bear Hill Road, North Andover, MA 01845, Alison M.
Lescarbeau, Vice Chairman, who resides at 68 Laconia Circle, North Andover, MA 01845, John
Simons, who resides at 25 Ironwood Road, North Andover, MA 01845, Richard Nardella, who
resides at 63 Haymeadow, North Andover, MA 01845, and Joseph V. Mahoney, who resides at 24
Millpond,North Andover,MA 01 845.
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4. Please state the name, address, occupation, educational background, and
professional background of each employee of the Town of North Andover, independent consultant,
or engineer who assisted the Planning Board in rendering its June 9, 1998 decision to deny the
Plaintiff's special permit application.
ANSWER: Subject to and without waiving the general and specific objections set
forth above,Kathleen Bradley Colwell, former Town Planner,253 Hickory Hill Road, North
Andover, MA; John Chessia, Professional Engineer, Coler& Colantonio, Inc., 101 Accord Park
Drive,Norwell, MA; Jim Rand, Director of Engineering,Department of Public Works,North
Andover, 384 Osgood Street,North Andover, MA.
5. Please state the name and address of every person involved the actual preparation
of the Planning Board's June 9, 1998 decision to deny the Plaintiff's special permit application.
ANSWER: While I do not have any personal knowledge, it appears that Kathleen
Bradley Colwell, in addition to the Board members were involved in the preparation of the
decision.
6. In the Planning Board's opinion, is it possible to lawfully construct any structure
on the Plaintiff's Lot 20A pursuant to the 1979 Zoning By-law without the necessity of first
requesting and obtaining a variance.
OBJECTION: In addition to the general objections set forth above, counsel for the
Board objects to this Interrogatory on the grounds that it requests legal rather than factual
information; it therefore seeks information protected by the privileges and immunities set forth in
the general objections; it seeks improperly to obtain an advisory opinion from the Board; it is
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outside the scope of permissible discovery, and it seeks information which is irrelevant, immaterial
and unlikely to lead to the discovery of admissible evidence.
7. Please state whether it is the Planning Board's opinion that no single-family home
could ever be constructed on the Plaintiff's Lot 20A due to the requirements imposed by the
Wetlands Protection District.
OBJECTION: In addition to the general objections set forth above, counsel for the
Board objects to this Interrogatory on the grounds that it requests legal rather than factual
information; it therefore seeks information protected by the privileges and immunities set forth in
the general objections; it seeks improperly to obtain an advisory opinion from the Board; it is
outside the scope of permissible discovery, and it seeks information which is irrelevant, immaterial
and unlikely to lead to the discovery of admissible evidence.
8. Please state, based upon all applicable zoning regulations, what economic use of the
Plaintiff s Lot 20A is available in light of the Board's June 9, 1998, decision to deny the Plaintiffs
special permit application.
OBJECTION: In addition to the general objections set forth above, counsel for the
Board objects to this Interrogatory on the grounds that it requests legal rather than factual
information; it therefore seeks information protected by the privileges and immunities set forth in
the general objections; it seeks improperly to obtain an advisory opinion from the Board; it is
outside the scope of permissible discovery, and it seeks information which is irrelevant, immaterial
and unlikely to lead to the discovery of admissible evidence.
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9. Please state the name and address of every engineer, consultant, limnologist,
wetlands scientist, or other individual with expertise that the Planning Board relied upon in
determining that the Plaintiff's proposed construction would adversely impact water quality.
ANSWER: Please see my answer to interrogatory four, as well as minutes of the
Board's hearings on this matter and final decision.
10. Please state the date, author, and location of any plans, letters, reports, data, or
memoranda prepared on the issue of the adverse impact on water quality caused by the Plaintiff's
proposed project.
ANSWER: Documents will be produced in response to this interrogatory.
11. Please provide a list of all Wetlands Protection District special permits granted since
1979 to applicants proposing construction within 100 feet of a tributary.
ANSWER: Our records are not maintained in such a way that I can provide this
information. Provided with these answers is a copy of list of Watershed special permits from 1993
to the present date,but this list does not specifically relate to permits within 100 feet of a tributary.
12. Please provide a list of specific reasons, with reference to any plans or reports
prepared by consultants or other individuals, that supports the Planning Board's factual
determination that the Plaintiff's proposed construction would elevate suspended solids, nutrients,
and bacterial concentration of the tributary or of Lake Cochichewick.
OBJECTION: In addition to the general objections set forth above, counsel for the
Board objects to this Interrogatory on the grounds that it requests legal rather than factual
information; it therefore seeks information protected by the privileges and immunities set forth in
the general objections; it seeks improperly to obtain expert opinion from the Board and its
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consultants; it is outside the scope of permissible discovery, and it seeks information which is
irrelevant, immaterial and unlikely to lead to the discovery of admissible evidence.
ANSWER: Subject to and without waiving the general and specific objections set
forth above, the answer to this interrogatory can be derived from the Planning Board's denial
which is attached to the Plaintiffs' Complaint, as well as from the documents produced in
relation to the hearings before the Board in connection with this matter.
13. Please provide a list of specific reasons, with reference to any plans or reports
prepared by engineers or other individuals, that supports the Planning Board's conclusion that
the drainage control mechanisms as designed by the Plaintiff would fail to protect the tributary or
Lake Cochichewick's water quality.
OBJECTION: In addition to the general objections set forth above, counsel for the
Board objects to this Interrogatory on the grounds that it requests legal rather than factual
information; it therefore seeks information protected by the privileges and immunities set forth in
the general objections; it seeks improperly to obtain expert opinion from the Board and its
consultants; it is outside the scope of permissible discovery, and it seeks information which is
irrelevant, immaterial and unlikely to lead to the discovery of admissible evidence.
ANSWER: Subject to and without waiving the general and specific objections set
forth above, the answer to this interrogatory can be derived from the Planning Board's denial
which is attached to the Plaintiffs' Complaint, as well as from the documents produced in
relation to the hearings before the Board in connection with this matter.
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14. Please state the design parameters of a drainage control mechanism(s) which would
adequately protect the water quality of a tributary 50 feet from the Plaintiff s proposed construction,
if any.
OBJECTION: In addition to the general objections set forth above, counsel for the
Board objects to this Interrogatory on the grounds that it requests legal rather than factual
information; it therefore seeks information protected by the privileges and immunities set forth in
the general objections; it seeks improperly to obtain an advisory opinion from the Board; it seeks
improperly to obtain expert opinion from the Board and its consultants; it is outside the scope of
permissible discovery, and it seeks information which is irrelevant, immaterial and unlikely to lead
to the discovery of admissible evidence.
15. Please specify all deficiencies in the Plaintiffs plan which would, if not addressed,
adversely affect water quality in the tributary or Lake Cochichewick.
OBJECTION: In addition to the general objections set forth above, counsel for the
Board objects to this Interrogatory on the grounds that it requests legal rather than factual
information; it therefore seeks information protected by the privileges and immunities set forth in
the general objections; it seeks improperly to obtain an advisory opinion from the Board; it seeks
improperly to obtain expert opinion from the Board and its consultants; it is outside the scope of
permissible discovery, and it seeks information which is irrelevant, immaterial and unlikely to lead
to the discovery of admissible evidence.
16. Please state with specificity each reason why the conditions imposed on the
proposed construction by the Town of North Andover Conservation Commission in Order of
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Conditions Number 242 - 922 would be insufficient to protect the water quality of the tributary or
Lake Cochichewick pursuant to the Wetlands Protection District regulations.
OBJECTION: In addition to the general objections set forth above, counsel for the
Board objects to this Interrogatory on the grounds that it requests legal rather than factual
information. it therefore seeks information protected by the privileges and immunities set forth in
the general objections; it seeks improperly to obtain an advisory opinion from the Board; it seeks
improperly to obtain expert opinion from the Board and its consultants; it is outside the scope of
permissible discovery, and it seeks information which is irrelevant, immaterial and unlikely to lead
to the discovery of admissible evidence.
17. Please state each and every document, plan, memoranda, letter, or report the
Planning Board will introduce as an exhibit at trial.
OBJECTION: , Counsel for the Board objects to this Interrogatory on the grounds
that it does not seek factual information but rather legal analysis; it seeks information protected by
the privileges and immunities from discovery set forth in the general objections; it is outside the
scope of permissible discovery; it seeks to obtain information protected by the attorney-client
privilege; it seeks to elicit information immune from discovery as work product; and it seeks to
elicit the mental impressions of counsel.
18. Please provide each and every fact the Planning Board relied on when in Paragraph
A of the Boards' June 9, 1998 Decision to deny the Plaintiff's special permit application the Board
stated that the specific site is not an appropriate location for the construction of a single family
home.
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OBJECTION: In addition to the general objections set forth above, counsel for the
Board objects to this Interrogatory on the grounds that it requests legal rather than factual
information; it therefore seeks information protected by the privileges and immunities set forth in
the general objections; it seeks improperly to obtain expert opinion from the Board and its
consultants; it is outside the scope of permissible discovery, and it seeks information which is
irrelevant, immaterial and unlikely to lead to the discovery of admissible evidence.
ANSWER: Subject to and without waiving the general and specific objections set
forth above, the answer to this interrogatory can be derived from the Planning Board's denial
which is attached to the Plaintiffs' Complaint, as well as from the documents produced in
relation to the hearings before the Board in connection with this matter.
19. Please provide each and every fact the Planning Board relied on when in Paragraph
B of the Boards' June 9, 1998,Decision to deny the Plaintiff's special permit application the Board
stated that the uses as developed will adversely affect the neighborhood.
OBJECTION: In addition to the general objections set forth above, counsel for the
Board objects to this Interrogatory on the grounds that it requests legal rather than factual
information; it therefore seeks information protected by the privileges and immunities set forth in
the general objections; it seeks improperly to obtain expert opinion from the Board and its
consultants; it is outside the scope of permissible discovery, and it seeks information which is
irrelevant, immaterial and unlikely to lead to the discovery of admissible evidence.
ANSWER: Subject to and without waiving the general and specific objections set
forth above, the answer to this interrogatory can be derived from the Planning Board's denial
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which is attached to the Plaintiffs' Complaint, as well as from the documents produced in
relation to the hearings before the Board in connection with this matter.
20. Please provide each and every fact the Planning Board relied on when in Paragraph
C of the Boards' June 9, 1998 Decision to deny the Plaintiff's special permit application the Board
stated that adequate and appropriate facilities have not been provided for the proper operation of the
proposed use.
OBJECTION: In addition to the general objections set forth above, counsel for the
Board objects to this Interrogatory on the grounds that it requests legal rather than factual
information; it therefore seeks information protected by the privileges and immunities set forth in
the general objections; it seeks improperly to obtain expert opinion from the Board and its
consultants; it is outside the scope of permissible discovery, and it seeks information which is
irrelevant,immaterial and unlikely to lead to the discovery of admissible evidence.
ANSWER: Subject to and without waiving the general and specific objections set
forth above, the answer to this interrogatory can be derived from the Planning Board's denial
which is attached to the Plaintiffs' Complaint, as well as from the documents produced in
relation to the hearings before the Board in connection with this matter.
21. Please provide each and every fact the Planning Board relied on when in Paragraph
D of the Boards' June 9, 1998 Decision to deny the Plaintiff's special permit application the Board
stated that the use is not in harmony with the general purpose and intent of the North Andover
Zoning Bylaw.
OBJECTION: In addition to the general objections set forth above, counsel for the
Board objects to this Interrogatory on the grounds that it requests legal rather than factual
10
information; it therefore seeks information protected by the privileges and immunities set forth in
the general objections; it seeks improperly to obtain expert opinion from the Board and its
consultants; it is outside the scope of permissible discovery, and it seeks information which is
irrelevant, immaterial and unlikely to lead to the discovery of admissible evidence.
ANSWER: Subject to and without waiving the general and specific objections set
forth above, the answer to this interrogatory can be derived from the Planning Board's denial
which is attached to the Plaintiffs' Complaint, as well as from the documents produced in
relation to the hearings before the Board in connection with this matter.
22. Please identify each and every person whom you intend to call as an expert witness
at trial, stating the subject matter on which each expert is expected to testify, the substance of the
facts and opinions to which each expert is expected testify, and a summary for the grounds for each
opinion.
ANSWER:
(a) John Chessia, Professional Engineer, Coler& Colantonio, Inc., 101 Accord Park
Drive,Norwell,MA 02061. Mr. Chessia is expected to testify about the submittals by the
applicant for the Watershed Special Permit for Lot 20A. The substance of his expected
testimony and his opinions are described in correspondence to the Town of North Andover which
is made available to the plaintiff herewith. Mr. Chessia is also expected to testify about his
concerns regarding the plans submitted by the plaintiff for development
(b) Kathleen Bradley Colwell, former Town Planner, 253 Hickory Hill Road,North
Andover, MA. Ms. Colwell is expected to testify about the reasons for the Board's denial of the
application for the Watershed Special Permit for Lot 20A. The substance of her expected
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testimony and her opinions are described in documents which have been made available to the
plaintiff.
(c) Jim Rand, Director of Engineering, Department of Public Works,North Andover,
384 Osgood Street,North Andover, MA. Mr. Rand is expected to testify about the sewer and
drainage plans submitted by the plaintiff.
The Board reserves the right to supplement the answer to this interrogatory.
23. Please identify each and every person whom you intend to cause a non-expert
witness at trial.
OBJECTION: Counsel for the Board objects to this Interrogatory on the grounds
that it does not seek factual information but rather legal analysis; it seeks information protected by
the privileges and immunities from discovery set forth in the general objections; it is outside the
scope of permissible discovery; it seeks to obtain information protected by the attorney-client
privilege; it seeks to elicit information immune from discovery as work product; and it seeks to
elicit the mental impressions of counsel.
ANSWER: Subject to the general and specific objections set forth above, the
Board agrees to exchange witness lists at the appropriate time.
AS TO ANSWERS:
Signed under the penalties of perjury thisOy day of June, 1999.
eidi Griffin, Town er
AS TO OBJECTIONS:
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PLANNING BOARD OF THE TOWN OF NORTH
ANDOVER, JOSEPH V. MAHONEY, RICHARD
ROWEN, ALISON LESCARBEAU, RICHARD
NARDELLA, AND JOHN SIMONS
By their Attorneys,
URBELIS, FIELDSTEEL & BAILIN, LLP
Thomas J. Urbelis, Esq. (BBO #506560)
Devra G. Bailin, Esq. (BBO#026690)
155 Federal Street
Boston,MA 02110
Dated: July Z� , 1999 (617) 338-2200
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CERTIFICATE OF SERVICE
I, Devra G. Bailin, do hereby certify that on July Z`i 1999,I served Defendants'
Answers to Interrogatories on the parties in interest by causing a copy of same to be mailed,
postage prepaid to:
Michael P. McCarron, Esquire
Grenier& McCarron
100 Hathorne Office Park
491 Maple Street
Danvers, MA 01923
Devra G. Bailin, Esquire
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