Walsh v. Town of Lakeville
| Decision Date | 10 April 2006 |
| Docket Number | Civil Action No. 02-12003-NMG. |
| Citation | 431 F.Supp.2d 134 |
| Parties | Rosemarie WALSH, Plaintiff, v. TOWN OF LAKEVILLE et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Margaret A. Ishihara, Law Office of Margaret A. Ishihara, Mattapoisett, MA, for Plaintiff.
Joseph L. Tehan, Jr., Katharine Isabel Doyle, Kopelman & Paige, PC, Boston, MA, for Defendants.
In the instant dispute, Rosemarie Walsh ("Walsh") alleges that the defendants, the Town of Lakeville, Massachusetts ("the Town"), Manuel G. Mello ("Mello"), Pietro Panettieri ("Panettieri"), Edward P. Gibney ("Gibney"), William E. Garvey, Jr. ("Garvey"), Joseph J. Beneski ("Beneski"), Gerald R. White ("White"), Richard F. La-Camera ("LaCamera"), Chawner Hurd ("Hurd") and Robert M. Darling ("Darling")(collectively "the defendants") violated her federal and state civil rights. Walsh also claims that defendant LaCamera defamed her by making a false statement about her at a public meeting which was reported in an area newspaper. The defendants move separately for summary judgment and the Court resolves the motions as follows.
Walsh has owned ten properties in the Town of Lakeville. This suit emanates from her ownership of three of those properties.
In October, 1999, Walsh purchased a house located at 105 Hackett Avenue, Lakeville, Massachusetts. Walsh claims that, similar to the other houses in the vicinity, the Hackett Avenue property was used as a year-round residence prior to her purchase of the property.
After purchasing the Hackett Avenue property, the plaintiff took steps to upgrade the sewage disposal system on the property. On or about December 13, 1999 Walsh had a percolation test done on the Hackett Avenue property which was observed by a Lakeville Board of Health agent. The site failed the percolation test. Walsh then had her engineer design an alternative sewage system known as a tight tank.
On or about May 17, 2000, defendant Mello, the Town Board of Health Agent, filed a criminal complaint against Walsh for alleged violations relating to the sewage disposal system on the Hackett Avenue property. One of the alleged violations was pollution. Walsh claims that prior to the criminal complaint, the Town did not have reasonable grounds to believe that her property was the source of the alleged pollution. She asserts that the photographs shown to her by defendant Mello were taken during a rain storm and showed water running downhill from the street and not from the septic system. Walsh claims that Mello admitted that what he had seen did not look or smell like sewage. Moreover, Walsh's septic bill showed that the system was working on March 16, 2000. The application for the criminal complaint was publicized in area newspapers. A hearing on the complaint was scheduled for June 27, 2000. In the meantime, on May 24, 2000, at a Board of Health meeting, Walsh claims that one member of the Board, defendant Gibney, told her that the criminal complaint against her would be resolved if she agreed to a deed restriction of her Hackett Avenue property to seasonal use. Walsh refused to agree.
On June 8, 2000, Walsh submitted an application for approval of the tight tank system to the Lakeville Board of Health. At the Board of Health hearing on her application on June 21, 2000, one of the Board members stated that he would consider approving the permit if Walsh would agree to execute a deed restriction limiting the use of the Hackett Avenue dwelling to summer residence only. Walsh rejected that condition and the Board denied her permit for the tight tank system.
The hearing on the Town's criminal complaint was continued to July 21, 2000. At a July 1, 2000, meeting of the Board of Health, the Board decided to withdraw the criminal complaint against Walsh in order to pursue civil enforcement action. No Town representative appeared and the complaint was dismissed. Defendant Mello claims his failure to appear at the hearing was due to a scheduling miscommunication with the Lakeville Town Administrator, whom he mistakenly believed had cancelled the hearing.
On or about July 21, 2000, Walsh filed a complaint in the nature of certiorari in Plymouth Superior Court to overturn the Board of Health's decision denying her application for the tight tank system. In a letter dated August 31, 2000, the Board of Health Agent wrote to Walsh stating that the Board had approved the tight tank system but with the restriction that the property was to remain a seasonal property. That approval came after Walsh's engineer provided a septic system repair plan to the Board in a letter dated August 8, 2000, and was subject to approval by the Massachusetts Department of Environmental Protection ("DEP"). Walsh wrote a letter in response to the Board's approval dated September 22, 2000, proposing to add a restriction to the deed limiting the house to two bedrooms provided she could use the house year-round. On or about September 14, 2000, DEP approved the tight tank system for the Hackett Avenue property. In a letter dated January 19, 2001, the Lakeville Board of Health informed Walsh that it had approved the tight tank system conditioned upon a deed restriction that the Hackett Avenue property would remain a two bedroom dwelling and that there would be no further expansion. The letter made no mention about restricting year-round residence of the property. Walsh recorded the deed restriction on February 14, 2001, and the Board of Health formally approved the tight tank system on February 20, 2001.
In 2001, Walsh put the Hackett Avenue property up for sale at the price of $259,000. In March, 2001, a prospective buyer was told by someone at Lakeville Town Hall that the property was seasonal and did not make an offer. When Walsh spoke with defendant Mello about the incident, he allegedly admitted that he had told a prospective buyer that the property was seasonal but agreed to review the matter further.
In 2002, despite the tight tank system at the Hackett Avenue property, Walsh reported to defendant Mello that the cesspool at the property located at 103 Hackett Avenue, owned by Lawrence Kenney ("Kenney"), had sewage overflow running from his property over her property and down to Long Pond. Walsh complained to Mello. When she asked Mello why the Town was not taking action against Kenney, she claims that Mello told her that, due to the fact that Kenney was going through a divorce, he was giving him a break.
In June, 1999, Walsh purchased a house located at 9 Barberry Street, Lakeville, Massachusetts and began renovations on the property. The property consists of a 10,000 square foot lot on which a single family home is located. It is located about 1,600 feet from Long Pond. At that time, the water supply for that property was from a private water supplier and sewage was handled by cesspool. Walsh claims that other homes on and near Barberry Street, which are smaller than Walsh's, have year-round use cesspools and private wells for their water supply. She contends that none of those properties received a special permit from the Town of Lakeville Zoning Board of Appeals for a conversion to a year-round home.
On June 30, 1999, Walsh filed an application for a building permit to perform work on her Barberry Street property, which was granted. When defendant Darling, the Lakeville Building Commissioner, discovered that Walsh was performing work beyond the scope of that permit, he sent her a letter instructing her to file a new application with an additional fee or face a work stoppage order. On August 11, 1999, Walsh filed an application to perform additional work on the property.
Walsh moved into the Barberry Street property in September, 1999, and the following month had an FDA approved individual potable water supply installed for year-round use. After that installation, defendant Beneski, then a member of the Lakeville Board of Health, came to Walsh's home unannounced and, according to Walsh, told her to get out of the house, which Walsh refused to do. On November 2, 1999, Walsh applied for a well permit.
Walsh alleges that in November, 1999, defendant Darling, the Town Building Commissioner, denied her application for an occupancy permit for the Barberry Street property despite the fact that she had received approval from various other inspectors including the plumbing inspector and the Fire Department. Walsh claims that the Building Commissioner took those permits but later told her he did not have them.
In or around January, 2000, Walsh met again with defendant Darling about a building permit application for a window at 9 Barberry Street. Walsh claims she asked him how much the application fee was and Darling said "you don't have enough money to get a permit from me."
On or about July 25, 2000, Walsh again requested a well-drilling permit for the Barberry Street property because, Walsh claims, the DEP had found her private water supply to be contaminated. The Lakeville Board of Health denied her permit, stating that there was an adequate water supply. Walsh Med a complaint in Plymouth Superior Court seeking a reversal of the Board's decision.
In December, 2000, defendant Darling brought a criminal complaint against Walsh in connection with the Barberry Street property for unlawful occupancy of a building and conversion of a seasonal home to year-round use without approval. At the hearing in January, 2001, the clerk-magistrate dismissed the complaint (allegedly with Town Board approval) because of Walsh's pending civil case with the Board of Health.
In February, 2001, Walsh informed the Town's attorney of several instances of well permits being granted to others who had situations similar to her own. On April 2, 2001, the Board of Health issued a...
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