Plaintiffs filed their verified Complaint on June 25, 2012, pursuant to G.L. c. 40A § 7, G.L. c. 231A § 1, and G.L. c. 240 §14A, seeking to preliminary and permanently enjoin Defendants Stephen Pitrowski ("Pitrowski"), Scott Cusick ("Cusick") and Pitsick LLC ("Pitsick", and together with Pitrowski and Cusick, the "Private Defendants") from continuing construction on land located on Goddard Street in Newton Highlands, Massachusetts. Together with their Complaint, Plaintiffs filed, ex parte, a Motion for Preliminary Injunction and an Application for a Temporary Restraining Order, a supporting memorandum, and Affidavit of George E. Mansfield. [Note 1] This court denied both the ex parte Motion for Preliminary Injunction and the application for Temporary Restraining Order. On July 10, 2012, the Private Defendants filed a Motion to Dismiss Complaint and Opposition to Motion for Preliminary Injunction, together with supporting memorandum, Affidavit of Defendant Scott Cusick, and a Motion to Strike Affidavit of George E. Mansfield. On July 20, 2012 Plaintiffs filed an Opposition to Motion to Dismiss Complaint (and Other Matters).
On July 30, 2012, a status conference was held where this court discussed jurisdictional issues in this case. On August 9, 2012, Plaintiffs filed their First Amended Complaint adding a count pursuant to G.L. c. 249 § 5, seeking an action in the nature of mandumus to order the Commissioner of the Inspectional Services Department of the City of Newton ("ISD"), John D. Lojek ("Lojek"), to act.
On August 13, 2012, Plaintiffs filed an Amended Motion for Preliminary Injunction requesting additional injunctive relief, together with a supporting memorandum. On August 28, 2012, the parties filed an agreed Motion For Leave to Complete Work to Secure Premises from Damage (the "Stipulation"), which was allowed by this court. On September 20, 2012, Defendants City of Newton (the "City") and Lojek filed an Answer and an Opposition to Plaintiffs' Amended Motion for a Preliminary Injunction, together with supporting memorandum. On September 22, 2012, the Private Defendants filed a Supplemental Brief in Support of their Motion to Dismiss Complaint and Opposition to Plaintiffs' Motion for Preliminary Injunction.
On September 25, 2012, a hearing was held on the motion for preliminary injunction, and the matter was taken under advisement. On September 27, 2012, Plaintiffs submitted an affidavit of plaintiff Paul M. Crowley ("Crowley"). On October 9, 2012, this court issued an order denying Plaintiffs' Motion for Preliminary Injunction (the "P.I. Order") on the basis that it had no jurisdiction to hear the motion. A status conference was held on Friday, October 25, 2012, to determine how to proceed in this matter. At that time, the court and the parties agreed to proceed on the issue of mandamus. Pursuant to an Order dated October 26, 2012, the City was given until November 8, 2012, to file a supplementary memorandum on the issue of mandamus, and both the Private Defendants and Plaintiffs were given until November 23, 2012, to reply. On October 30, 2012, the City submitted a letter to the court indicating that it did not intend to file a supplemental memorandum. On Friday, November 23, 2012, Plaintiffs filed Plaintiffs' Supplemental Memorandum Concerning Mandamus. [Note 2] Thereafter, on Friday, November 23, 2012, the matter was taken under advisement. A decision of today's date has been issued (the "Decision"). In accordance with the Decision, it is hereby:
ORDERED and ADJUDGED that Plaintiffs did not have an adequate remedy at law to appeal the issuance of City of Newton Building Permit Nos. 11100408 and 11100409 (the "Permits") to the City of Newton Zoning Board of Appeals (the "ZBA").
ORDERED and ADJUDGED that Plaintiffs did not have an adequate remedy at law to appeal Lojek's failure to respond to Plaintiffs' January 24, 2012 letter (the "Enforcement Letter") requesting enforcement of City of Newton Zoning Ordinance (the "Ordinance") to the ZBA.
ORDERED and ADJUDGED that Plaintiffs have not unreasonably delayed in bringing an action in the nature of mandamus pursuant to G.L. c. 249, § 5.
ORDERED and ADJUDGED that Plaintiffs are entitled to relief in the nature of mandamus pursuant to G.L. c. 249, § 5, with respect to the failure by Lojek to provide a response to the Enforcement Letter and subsequent requests for enforcement of the Ordinance with respect to the Permits.
ORDERED and ADJUDGED that Lojek is hereby ordered and directed, pursuant to G.L. c. 40A, § 7, to respond to the Enforcement Letter and subsequent requests for enforcement with respect to the Permits. Such response by Lojek shall be forthcoming in writing and sent by certified mail to counsel for Plaintiffs within fourteen (14) days of the date of the Decision and this Judgment.
ORDERED and ADJUDGED that this court shall retain jurisdiction over this action and any ensuing appeals from a decision by the ZBA.
So ordered.
By the court. (Sands, J.)
ALAN FILZER, MARLENE KLIMAN, MONICA CROWLEY and PAUL CROWLEY, DIANE DION and ARTHUR DION, JUDITH MANNIX and JOHN KOOT, and GERALD BURG vs. STEPHEN T. PITROWSKI, SCOTT CUSICK, PITSICK LLC, CITY OF NEWTON, and JOHN D. LOJEK, as BUILDING COMMISSIONER OF THE CITY OF NEWTON