Original civil complaint filed. June 02, 2022 (2024)

 
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 COMMONWEALTH OF MASSACHUSETTS | ESSEX, ss. SUPERIOR COURT CIVIL ACTION NO. 23.: FCVO0SOB PAUL FERRAGAMO and DAVID FERRAGAMO, Trustees of WEBSTER ) STREET BUILDING REALTY NOMINEE ) TRUST; and PAUL FERRAGAMO, ) Individually, Plaintiffs COMPLAINT Vv ) CRAIG S. WELTON, PETER M. McGINN, ) STEPHANIE R. PEACH, JULIE K. ) DAIGLE, DAVID R. GAMACHE, MARK J.) nm aw O’NEILL, THOMAS L. GOULD, ANNE M.) oo ra MANNING-MABRTIN, RYAN MELVILLE, ) ve a THOMAS J. ROSSIGNOLL AND JON G. ) an mit TURCO, as they are MEMBERS of the ) PEABODY CITY COUNCIL; EXTREME PACKING SOLUTIONS, INC. AND Q MYRA COLETTL, Trustee of the LONG a S nD BEACH REALTY TRUST, oA Defendants PARTIES 1 Plaintiffs, Paul Ferragamo and David Ferragamo are Truste 's of the | Webster Street Building Realty Nominee Trust, under written Declaratio: of Trust dated June 13, 1996, recorded at the Essex South District Registry of Deed pat Book 13608, Page 176, with a principal place of business at 20 Webster Street, E |wody, | I Massachusetts.2EGNANTE STERIO LLP ATTORNEYS AT LAWEDGEWATER OFFICE PARK 2. Plaintiff, Paul Ferragamo, is an individual residing at 8 Spc |ting Horn,401 EDGEWATER PLACE SUITE 630 Road, Nahant, Massachusetts.JAKEFIELD, MA 01880-6210 TEL (781) 246-2525! | | 3. Defendant, Craig S. Welton, is an individual residing at 195 : ynn Street, | Peabody, Massachusetts. At all times material hereto, Craig S. Welton wa: ia member of | the Peabody City Council (the “Council”) and is a party defendant in his « pacity as a 1 Member of said Council. | | ‘ 1 4. Defendant, Peter M. McGinn, is an individual residing at 8 E lk Street, : 1 Peabody, Massachusetts. At all times material hereto, Peter M. McGinn w {s a member of the Council and is a party defendant in his capacity as a Member of saii (Council. 5 Defendant, Stephanie R. Peach, is an individual residing at 1] ) Margin |; i i 4 | Terrace, Peabody, Massachusetts. At all times material hereto, Stephanie “. Peach was 1 a member of the Council and is a party defendant in her capacity as a Me: iber of said ! tI Council. | | | 6. Defendant, Julie K. Daigle, is an individual residing at 21 Fa Avenue, i Peabody, Massachusetts. At all times material hereto, Julie K. Daigle was : member of the Council and is a party defendant in her capacity as a Member of said ¢ jouneil | 7. Defendant, David R. Gamache, is an individual residing at ‘ 52 Newbury Street, Lot 72, Peabody, Massachusetts. At all times material hereto, Dav: I R. Gamache was a member of the Council and is a party defendant in his capacity as é Member of ! | said Council. | 8 Defendant, Mark J. O’Neill, is an individual residing at 21 ¢ heim Road! Peabody, Massachusetts. At all times material hereto, Mark J. O’Neill we | a member oftEGNANTE STERIO LLP ‘ i ATTORNEYS AT LAW:DGEWATER OFFICE PARK the Council and is a party defendant in his capacity as a Member of said ‘ louncil.401 EDGEWATER PLACE SUITE 630JAKEFIELD, MA 01880-6210 TEL (781) 246-25251 | | 9 Defendant, Thomas L. Gould, is an individual residing at 9 / bington | | I Avenue, Peabody, Massachusetts. At all times material hereto, Thomas L. Gould was a | member of the Council and is a party defendant in his capacity as a Memt wr of said oy4 | Council. | | 10. Defendant, Anne M. Manning-Martin, is an individual resid hs at 37 | Dexter Street, Peabody, Massachusetts. At all times material hereto, Ann¢ M. Manin’ 1 Martin was a member of the Council and is a party defendant in her capa: ity asa | | t Member of said Council. I' | 11. Defendant, Ryan Melville, is an individual residing at 30 He co*ck Stree & | Peabody, Massachusetts. At all times material hereto, Ryan Melville was member ° ' | 1| the Council and is a party defendant in his capacity as a Member of said ¢ ouneil 12. Defendant, Thomas J. Rossignoll, is an individual residing <: 16 Johnson : Avenue, Peabody, Massachusetts. At all times material hereto, Thomas J: Rossignoll was a member of the Council and is a party defendant in his capacity as @ Member of| ! said Council. 1i | 13. Defendant, Jon G. Turco, is an individual residing at 161 ly infield Street, Peabody, Massachusetts. At all times material hereto, Jon G. Turco was < member of! | 1 the Council and is a party defendant in his capacity as a Member of said ‘ council. 1 | 14. Defendant, Extreme Packing Solutions, Inc., (“Extreme Pac! i) isa Massachusetts corporation with a principal place of business at 59 Sturte lant Street, .t1EGNANTE STERIO LLP ATTORNEYS AT LAW Beverly, Massachusetts. Extreme Packing is the Applicant for a Special I Srmit granted:DGEWATER OFFICE PARK401 EDGEWATER PLACE SUITE 630 by the Council pursuant to a Decision dated May 17, 2022.JAKEFIELD, MA 01880-6210 TEL (781) 246-2525,! 15. Defendant, Myra Coletti is the Trustee of the Long Beach Re ly Trust, under written Declaration of Trust dated February 4, 1997 and recorded a the Essex 1 South District Registry of Deeds at Book 13971, Page 213, with a principal dlace of | | business at 8 Norwood Streét, Gloucester, Massachusetts. 16. This an appeal of a Decision by the Defendants as Members: i the City i Council, appealing approval of a Special Permit dealing with property kn rwn as and, i 1 numbered 7 Webster Street, Peabody, Massachusetts (the “Locus”). 1 17. This Court has jurisdiction of this appeal pursuant to M.G.L ie 40A,§ v, 18. Plaintiffs also seek a Declaratory Judgment pursuant to MC L c. 231A, 8 1 I ‘ | et seq. seeking a Declaratory Judgment confirming that plaintiffs, as the 6 vners of 5 Webster Street (Lot 2) have an easem*nt for unrestricted parking of 12 pa cing space! i located at the Locus. FACTS | 1 19. Plaintiff, Paul Ferragamo and David Ferragamo, Trustees 0} the Webster Street Building Realty Nominee Trust (“Webster Street Trust”), hold title ° Lots 2, 4 | and 5 as depicted on a certain Subdivision Plan of Land along Webster St eet, dated ": November 18, 1996, and recorded at the Essex South District Registry of : leeds at Plai 1 | i Book 314, Plan 55 (the “Plan”). A copy of said Plan is attached hereto as exhibit 1. ‘| Copies of the Deeds to Lots 2, 4 and 5 are attached hereto as Exhibits 2,3 lad 4, 1 respectively. |XEGNANTE STERIO LLP ATTORNEYS AT LAW ! 20. Plaintiff, Paul Ferragamo, holds title to Lot 3 as depicted or said Plan. iEDGEWATER OFFICE PARK401 EDGEWATER PLACE SUITE 630 The Deed to Lot 3 is attached hereto as Exhibit 5.VAKEFIELD, MA 01880-6210 TEL (781) 246-252521. Lots 2,3, 4and 5 all abut Webster Street and Lot 2 directly a uts the Locus, shown as Lot 1 on said Plan. ' 22. Defendant, Coletti, holds title to the Locus known as and nu hbered 7 | Webster Street, Peabody, Massachusetts, shown as Lot 1 on said Plan. A« PY of the | I 1 Deed of Lot 1 to Defendant Coletti is attached hereto as Exhibit 6. | 23. Webster Street Trust holds title to the private portion of We} ster Street | | shown on said Plan, said portion directly adjacent to the Locus and Lots 7 through 5. i 24. Plaintiff, the Webster Street Trust has the unrestricted right 9 use for | i parking purposes 12 parking spaces located on the Locus for parking of ¢ jssenger | I vehicles, pursuant to a Declaration of Easem*nts and Restrictions, Websti : Street, 1 1 Peabody, MA, dated February 10, 1997, recorded at the Essex South Distr le Registry of Deeds at Book 13969, Page 555. A copy of said Declaration of Easem*nts nd | i Restrictions is attached hereto as Exhibit 7. ! | 25. Onor about January 18, 2022, Extreme Packing filed an Apj ication for'| Special Permit with the Council seeking a Special Permit under Section 4 6 of the Gy of Peabody Zoning Ordinance to operate a trucking terminal at the Locu: A copy of i1 t | the Application for Special Permit is attached hereto as Exhibit 8. | 26. Specifically, Extreme Packing sought a Special Permit to us ithe Locus for common dry freight of goods transported, crated, packaged, stored and { “ansferred : : within a warehouse located at the Locus.2EGNANTE STERIO LLP ATTORNEYS AT LAW 27. The Locus is located in Ward 3 of the City of Peabody in th i Zoning=DGEWATER OFFICE PARK 401 EDGEWATER PLACE SUITE 630 District.VAKEFIELD, MA 01880-6210 TEL (781) 246-252528. The Application indicates that the Applicant would have a‘ val of 7 off-| i street parking spaces to serve the use at the Locus. Exhibit 8. 29. The Application indicates that there are to be 7 total vehicle «parked at the 1 | Locus, including two trucks and one van that will be parked overnight in parking spaces at the Locus. Exhibit 8. ' 30. The Application indicates that there are to be four employe: ; at the st 1 and a dumpster to be located on the side of the warehouse. Exhibit 8. 1 31, The Application states that there are three loading docks th: t will be used | for the loading and unloading of freight and packing materials. Exhibit é . 32. As part of the application process, the applicant submitted ‘ ? the Counc’ il | a Site Development Permit Plan Located in Peabody, Mass., Prepared by lastern Larid Survey Associates, Inc., dated December 3, 2021, revised December 12, 2C March 16, k: 2022 and April 5, 2022. A copy of said Site Development Permit Plan is a lached heréto as Exhibit 9. 33. The Council scheduled a duly noticed public hearing for M y 12, 2022." | 34. Prior to the Council hearing on May 12, 2022, counsel repre enting the. Plaintiffs submitted a written opposition to the Application for Special Pr smit, detailing the parking deficiencies at the Locus and explaining why the Applicant c ‘n not satisf the requirements of the Peabody Zoning Ordinance for the requested Spx ial Permit: iA copy of the written opposition submitted to the Council is attached heret as Exhibit 10EGNANTE STERIO LLP ATTORNEYS AT LAW Plaintiff’s counsel reiterated the opposition before the Council on May 1: 2022.:DGEWATER OFFICE PARK 401 EDGEWATER PLACE SUITE 630VAKEFIELD, MA 01880-6210 TEL (781) 246-252535. On May 12, 2022, the Council voted to grant the Special Per: iit sought by Extreme Packing. More specifically, the Council approved the Applicatic A submitted’ | by Extreme Packing for a Special Permit to operate a trucking terminal fo ° the | transportation of common dry freight goods, which are crated, packaged, stored and; I transferred at 7 Webster Street, Unit F in Peabody, in accordance with Sec : ions 4.2.6, 6 and 15.7 of the Peabody Zoning Ordinance (the “Decision”). A certified «. »py of the | Decision filed with the Peabody City Clerk’s Office on May 17, 2022, is at iched hereti as Exhibit 11. 36. The Decision of the Council exceeds the authority of the Co’. incil, its 1 findings are erroneous, contrary to the facts and evidence presented to th 1 Council, | takes into account issues and factors beyond the jurisdiction of the Coun¢ land is ! legally untenable, arbitrary and capricious. COUNT I SPECIAL PERMIT APPEAL i 37. Plaintiffs incorporate by reference paragraphs 1 through 36 of the Complaint as if fully set forth herein. t 38. Defendant, Extreme Packing, was the Applicant for a Specii Permit | | | pursuant to Sections 4.2.6, 6.1 and 15.7 of the Peabody Zoning Ordinance : regarding 7 | Webster Street, Peabody, Massachusetts, owned by Defendant, Coletti. | 39. Defendant, Extreme Packing, submitted a Site Developmen Permit PlaxEGNANTE STERIO LLP (Exhibit 9) to the City Council depicting the Locus and the available park ag spaces for ATTORNEYS AT LAW2DGEWATER OFFICE PARK 401 EDGEWATER PLACE SUITE 630VAKEFIELD, MA 01880-6210 TEL (781) 246-25251 }1 i the proposed use at Unit 7F of the Locus, as a trucking terminal. A copy : f said Site i Development Plan is attached hereto as Exhibit 9 1 AO. Defendant, Extreme Packing, requested a Special Permit to ' ‘perate a | t trucking terminal at the Locus. 1 | 41 The proposal filed by Extreme Packing requires a minimurr of 7 parking spaces, which were described in the Application to the City Council, yet «, aly 6 designated parking spaces are identified on the Site Development Permit Plan. 42 As depicted on the Site Development Permit Plan, there are hot 7 available t parking spaces at the Locus available for use of the Applicant. | 43, Ten spaces shown on the Site Development Permit Plan are directly in | front of garage bay doors and thus parking is not available at these locati ms as those parking spaces would prohibit the ingress and egress to portions of the L cus | 44 The Applicant has failed to account for the 12 parking spac:'s that are | 1 reserved for the Webster Street Trust pursuant to the Declaration of Ease ‘aents and Restrictions, a copy of which is attached hereto as Exhibit 7. 1 i i 45, The Applicant, therefore, does not have exclusive rights to jor 7 parking spaces at the Locus available for the proposed use. | | 46 The Applicant is unable to satisfy the parking requirement: for the Locus pursuant to Section 9.2 of the Peabody Zoning Ordinance. | 47. The Site Development Permit Plan fails to designate parkir: ; spaces |XEGNANTE STERIO LLP ATTORNEYS AT LAW sufficiently large to accommodate the two trucks the Applicant has indic ‘ited will be DGEWATER OFFICE PARK 401 EDGEWATER PLACE SUITE 630 parked at the LocusYAKEFIELD, MA 01880-6210 TEL (781) 246-252548 The relief obtained by the Applicant neither satisfies a local zed, the design and appearance of the use will be injurious to the established and/ or future character of the vicinity and the neighborhood, and the use is not in harm ny with the general purpose and intent of the Peabody Zoning Ordinance. The relief btained will also increase congestion on Webster Street, directly contrary to Section 1.2 of the Peabody Zoning Ordinance. A copy of the Peabody Zoning Ordinance is ittached i| 1 hereto as Exhibit 12. 49. In particular, the Applicant will not have a sufficient numbe 1 lof parking ‘| spaces for the proposed use, and the parking spaces available are too smz i to ' accommodate the trucks Applicant intends to use at the Locus. It is likely |that on-street parking on the private portion of Webster Street owned by the Webster § leet Trust will result, causing unsafe conditions for the neighborhood and overburdenir:.; rand i exceeding any rights of the Applicant or Defendant, Coletti to use the pri late portion /of Webster Street for access. o 50. The Applicant is unable to satisfy the requirements for a Sp |pial Permit | i| 1 pursuant to the Peabody Zoning Ordinance. In particular, the requested se of the property with insufficient parking spaces available to satisfy the Zoning ' irdinance wi ii | not satisfy a local need, its design and appearance will be injurious to the stabs) and future character of the vicinity and the neighborhood, and the use is xot in il harmony with the general purpose of the Zoning Ordinance.2EGNANTE STERIO LLP ATTORNEYS AT LAW DGEWATER OFFICE PARK 401 EDGEWATER PLACE, SUITE 630VAKEFIELD, MA 01880-6210 TEL (781) 246-2525u 51 The requested use, without sufficient available parking spa: 2s to satisty | |‘| the Peabody Zoning Ordinance will, in fact, create undue traffic congesti ‘ a, create | parking hazards and unduly impair pedestrian safety in the neighborhoc of the Tos. 52. The requested use will result in on-street parking, endange| he the health, i i safety and/or general welfare in the area. | | 53 The requested use without the necessary parking spaces wi: || be 1 i detrimental to the health, morals or welfare of the zoning district. | 1 54, The City Council in granting the Special Permit exceeded it: authority, ‘| took into account issues and factors beyond the jurisdiction of the Counci jand its decision is untenable, arbitrary and capricious |1 | 4 COUNT II DECLARATORY JUDGMENT 1 1 55 Plaintiffs incorporate by reference paragraphs 1 through 54 Jif the 1 Complaint as if fully set forth herein. "4 56. On or about February 10, 1997, David Ankeles, Trustee of tl Webster ' i i Street Withdrawal Trust granted a Declaration of Easem*nts and Restrict ons, Webstet Street, Peabody, MA, to the owners of Lots 1, 2,3, 4 and 5. A copy of the: Yeclaration\of if Easem*nts and Restrictions is attached hereto as Exhibit 7. th 1 | I 1| 57. At the time of execution of the Declaration of Easem*nts an:: Restrictions, Hl2EGNANTE STERIO LLP David Ankeles, as Trustee, held title to Lots 1, 2, 3, 4 and 5 and the privat Jportion of} 4 | ATTORNEYS AT LAW DGEWATER OFFICE PARK 401 EDGEWATER PLACE SUITE 630WAKEFIELD, MA 01880-6210 TEL (781) 246-2525, 10Webster Street, all as shown on the November 18, 1996 Subdivision Plan z tached hereto I as Exhibit 1. Lot 1 is the Locus shown on said Plan. 58. Pursuant to the Declaration of Easem*nts and Restrictions, I avid Ankeles, as Trustee, granted to the owners of Lots 1, 2,3, 4 and 5, the right to use v sbster Suet for purposes of access and egress to and from their respective lots and the right of i{ access and use of the utilities and utility lines and other facilities lying wit in Webstei ‘ Street. 1 59. The Declaration of Easem*nts and Restrictions provides thai each lot 1 i owner, their invitees, heirs, successors and assigns shall not park or store ny vehicles! of any nature within Webster Street, meaning and intending that Webste: eet shall be il kept clear and open for purposes of access and egress at all times. Exhibi! 7. 60. Pursuant to said Declaration of Easem*nts and Restrictions, David i Ankeles, as Trustee, granted to the owner of Lot 2 (now the Webster Stree Trust) “the 1 1 unrestricted right to use for parking purposes the twelve (12) parking spe jes located on Lot 1 (the Locus) for parking of passenger vehicles only. Said spaces shal mot be used I to store vehicles or materials. The owner of Lot 1 may relocate said space ton Lot1 i provided that the spaces remain accessible and convenient for use by the hwner of Lot d ‘ | 2.” See Exhibit 7. 61. There is an actual controversy between Plaintiffs and Defen lant, Coletti, | regarding the validity and enforcement of the easem*nts and restrictions. 4EGNANTE STERIO LLP | ATTORNEYS AT LAWSDGEWATER OFFICE PARK 401 EDGEWATER PLACE SUITE 630VAKEFIELD, MA 01880-6210 TEL (781) 246-2525 111 62 Defendant, Coletti has failed and refused to designate or prc vide 12 t | parking spaces at the Locus for the unrestricted use of Webster Street Tru: : for parking of passenger vehicles. i 63. Defendant, Coletti has breached the Declaration of Easem*n 3 and il Restrictions by failing and refusing to provide the 12 parking spaces requ: ed. WHEREFORE, Plaintiffs, Paul Ferragamo and David Ferragamo, qT uustees of the Webster Street Building Realty Nominee Trust and Paul Ferragamo, indiv dually, demand 4 1 Under Count I of Plaintiffs’ Complaint, that Judgmer ‘enter on behalf of Plaintiffs, Paul Ferragamo and David Ferragamo, Trustee ‘of the i' Webster Street Building Realty Nominee Trust and Paul Ferragam: Individually, and against the Defendants, Craig S. Welton, Peter V ‘McGinn, i Stephanie R. Peach, Julie K. Daigle, David R. Gamache, Mark J. Ol {eill, Thomas L. Gould, Anne M. Manning-Martin, Ryan Melville, Thomas J. Ros ‘ignoll and Jon G. Turco, as they are Members of the Peabody City Council an | Defendants, 1 Extreme Packing Solutions, Inc. and Myra Coletti, Trustee of the L ng Beach | Realty Trust, annulling the Decision of the Board dated May 17, 2( 12, approving I il the above-described Special Permit; 

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