October 10, Town Clerk Town of Douglas 29 Depot Street Douglas, MA 01516

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1 October 10, 2013 Town Clerk Town of Douglas 29 Depot Street Douglas, MA RE: Louis C. Tusino, Cardinal Drive Vs: Ernest Marks, Eben Chesebrough, Derek Brown, Robert Werme Jr., Michael Zwicker, Michael Greco as they constitute the Planning Board of the Town of Douglas Dear Madam: Enclosed herein please find a copy of the Complaint and Cover Sheet in the above-referenced case, which is filed with your office in accordance with the provisions of Massachusetts General Laws, Chapter 40A, Section 17. Very truly yours, Louis C. Tusino Enclosure Hand Delivered Cc: Ernest Marks, Certified Mail Eben Chesebrough, Certified Mail Derek Brown, Certified Mail Robert Werme Jr., Certified Mail Michael Zwicker, Certified Mail Michael Greco, Certified Mail

2 Louis C. Tusino 12 West Street Douglas, MA Notice to Town Clerk Pursuant to G.L. c. 40A, s. 17 I, Louis C. Tusino, hereby provide notice of appeal of the decision of the Douglas Planning Board filed with the Town Clerk on September, Said decision of disapproval of the modification of a definitive plan regarding all property located at Cardinal Drive, Douglas, Worcester County, Massachusetts. A copy of the complaint is attached hereto, all pursuant to G.L. c. 40A, s. 17. Date: 10/10/13 Louis C. Tusino

3 Commonwealth of Massachusetts Worcester, ss. Uxbridge District Court LOUIS C. TUSINO, Plaintiff v. Ca se No.: &C 3 IPS VO 366 DOUGLAS PLANNING BOARD, and Ernest Marks, Eben Chesebrough, Derek Brown, Robert Werme, Jr. Michael Zwicker and Michael Greco, Defendants PLAINTIFF LOUIS C. TUSINO APPEAL OF DIS-APPROVAL OF A MODIFIED DEFINITIVE PLAN 1. The Plaintiff, Louis C. Tusino, is an individual residing at 12 West Street, Douglas, MA 01516, and owner of property located at Cardinal Drive, Douglas MA The Defendants, members of the Planning Board of the Town of Douglas, Worcester County, Massachusetts are: Ernest Marks, 35 Manchaug Street, P.O. Box 836, Douglas, MA Eben Chesebrough, 17 Church Street, Douglas, MA Derek Brown, 247 Yew Street, Douglas, MA Robert Werme Jr., 44 Locust Street, Douglas, MA Michael Zwicker, 46 Oak Street, Douglas, MA Michael Greco, 172 Southeast Main Douglas, MA C) LTA 3. The Plaintiff filed an application February 25, 2013 requesting a modification of an existing definitive plan titled "A Two Lot Definitive Subdivision Plan" in the Town of Douglas, Massachusetts dated February 10, 2003 which was previously endorsed by the Douglas Planning

4 Board on August 26, 2003 and was further recorded at the Worcester Registry of Deeds as Plan 799, Plan The Plaintiff requested the modification of two special conditions; to further subdivide the parcel and to install wells instead of Town water to service lots. There were no proposed changes to boundary lines. 5. The Plaintiff obtained an assent from the other lot owner, giving consent to the proposed modifications. 6. The Planning Board opened the hearing March 26, The hearing was continued by request of the applicant to April 9, 2013; May 28, 2013; June 11, 2013; July 9, 2013; and August 13, The board moved to approve the modification with three votes to approve, three votes to disapprove, and one vote of recusal. 8. Plaintiff alleges that the decision exceeds the authority of the board. 9. Plaintiff further alleges that the board failed to give full and proper consideration to the evidence presented. WHEREFORE, the Plaintiff prays that this Court order as follows: 1. The decision of the Douglas Planning Board exceeded its authority. 2. The decision of the Douglas Planning Board shall be annulled. 3. For such other and further relief as this Court deems just in this matter. C.:7) yy.- Respectfully submitted, Louis C. Tusino 12 West Street Douglas, MA

5 A Two Lot Definitive Subdivision Plan Modification of a Definitive Subdivision Plan Planning Board Decision Louis Tusino Town of Douglas, Massachusetts Certificate of Dis-Approval of a Modified Definitive Plan September 24, 2013 It is hereby certified by the Planning Board of the Town of Douglas, Massachusetts, that a duly called and properly posted meeting of said Planning Board, held on March 26, 2013 it was voted to deny a modification to the following definitive plan: "A Two Lot Definitive Subdivision Plan" in the Town of Douglas, Massachusetts dated February 10, 2003 which was previously endorsed by the Douglas Planning Board on 08/26/03 and was further recorded at the Worcester County Registry of Deeds as Plan Book 799, Plan 112. Modification submitted by: Louis Tusino, 12 West Street, Douglas, MA (APPLICANT) Which modification was filed with the Planning Board on February 25, concerning property located and bounded as follows: m Douglas Assessors Map and With the attached decision. A copy of this Certificate of Dis-Approval is to be filed with the Town Clerk ands copy sent to the Applicant. Z"-.Lar.// A true copy, attest: Douglas Town Clerk Douglas Planning Boar P:IDepartmentstPlanning BoardlSubdivisionstBallou-MODI CardinalDrive.doc

6 A Two Lot Definitive Subdivision Plan Modification of a Definitive Subdivision Plan DECISION Town of Douglas Planning Board Planning Board Decision Louis Tusino co (7:7, Definitive Subdivision Plan Modification "A Two Lot Definitive Subdivision Plan" Douglas, MA Decision of the Douglas Planning Board (BOARD) on the petition of Louis Tusino, 12 West Street, Douglas, MA (APPLICANT) for property located on Cardinal Drive and Dogwood Lane, Douglas, MA and shown on Douglas Assessor's Map 162, Parcel 23 & Map 171, Parcel 32 (SITE). I. BACKGROUND: The original Planning Board decision issued on May 27, 2003 approved a Definitive Plan Submittal which contained two (2) buildable lots (Lot 1 and Lot 2), along with three (3) nonbuildable parcels of land (Dogwood Lane, Cardinal Drive and Parcel A). During that original application process, the Original Applicant demonstrated that the property could dimensionally create 6 or 7 conforming buildable lots along with the construction of a conventional subdivision road. That Original Applicant ultimately proposed a total of two (2) buildable lots to be deed restricted in-perpetuity, in consideration for the board waiving a number of road construction requirements. Primary among those were waivers with respect to road width, road grades and road construction standards. Furthermore, the road would remain private in-perpetuity. On September 27, 2005, the Planning Board endorsed an Approval-Not-Required (ANR) Plan for the property that is consistent with the original condition of subdivision approval which also prevented the creation of more than two buildable lots. To date, one of the two roads (Dogwood Lane), has been constructed in accordance with the approved subdivision plan (and the waivers therein) and the deeds for each lot (Lot 1 and Lot 2) contain language prohibiting the further subdivision of the lots. Cardinal Drive has not been constructed in accordance with the approved subdivision plan and remains a gravel driveway with no drainage. The proposed modification to the approved definitive plan pertains to two Special Conditions that were listed in the original decision. The Applicant requested relief from the following two Special Conditions: Section IV. B. 2.) A deed restriction shall be provided indicating that Parcel A, Parcel B, Parcel C, Lot 1, and Lot 2 shall not be further subdivided in perpetuity= to create more than a total of two buildable lots (ie. Lot 1 and Lot 2). The forth of the document shall be provided to and approved by Town Counsel prior. to the issuance of a building permit. fr P:1Departments1Planning BoardiSubdivisionstaallou-MOD CardinalDrive.doc Page 2.pf 5

7 A Two Lot Definitive Subdivision Plan Modification of a Definitive Subdivision Plan yn u rr, Planning Board Decision Louis Tusino Ht; Section IV. B. 7.) Douglas Water & Sewer ld"opartment approval is required prior to construction of the water lines in Dogwood Lane and Cardinal Drive. The approval shall be in writing and shall be provided to the Planning Board prior to release of the Covenants. The Applicant proposed to further subdivide Lot 2 and wishes to install wells instead of Town water to service lots. The BOARD caused notice of the time and place of its public hearing and the subject matter thereof to be published, posted and mailed to the APPLICANT, abutters and other parties of interest. The original Public Hearing was opened and heard on Tuesday, March 26, 2013 at 7:30 pm. After causing notice of the time and place of its public hearing and the subject matter thereof to be published, posted and mailed to the APPLICANT, abutters within 300-feet and other parties of interest as required by law, the BOARD Chairman called the meeting to order March , Douglas Town Hall, 29 Depot Street, Douglas, MA. The following BOARD Members were present throughout the Hearing Process: Chairman Ernest Marks; Eben Chesebrough; Derek Brown; Robert Werme, Jr.; Michael Zwicker and Michael Greco. Member Tracy Sharkey recused herself from each of the hearings. The hearing was continued by request of the APPLICANT to the following dates: April 9, 2013; April 23, 2013; May 28, 2013; June 11, 2013; July 9, 2013 and August 13, 2013 at which time, following public input, the hearing was closed. The record of the proceeding and submissions upon which this decision is based may be referred to in the Office of the Town Clerk or the Office of the Planning Board. II. FILINGS: Submitted for the Board's deliberation were the following: 1. The original subdivision plan filing, in its entirety, is incorporated to and made part of this filing. 2. Application for Approval of a Definitive Subdivision Plan which includes the following items: a. Application Form Q-1 stamped on February 25, 2013 by the Douglas Town Clerk; b. Definitive Filing Fees: $ for Administrative and $ for Review and Inspection; c. Certified Abutters List; P:IDepartinentstPlanning Board1SubdivisionstBallou-MOD CardinalDrive.doc

8 A Two Lot Definitive Subdivision Plan Modification of a Definitive Subdivision Plan 13 OC T 0 I?: Planning Board Decision Louis Tusino U,,,L III. FINDINGS: ;1.. After due consideration of the exhibits and the r r ebord 'of the proceedings, and upon satisfaction of the conditions herein, the Board finds the following: 1. The submittal is for properties identified on Town of Douglas Assessor's Maps as Map 162, Parcel 23 (Lot 1R); and Map 171, Parcels 32 (Lot 2R). The majority of the property is located in an area zoned "RA" (Rural Agricultural) while a few peripheral areas lie within a "VR" (Village Residential) zone. 2. Lot #1R contains an area of 4.09 acres while Lot #2R contains an area of 9.99 AC, based upon Douglas Assessors Maps. 3. A deed restriction limiting the number of lots on the proposed project was offered by a previous Owner in consideration for the Planning Board allowing lesser construction standards than are required by the Douglas Subdivision Rules and Regulations. Such restrictions were recorded on each lot for the benefit of each other. This Agreement was memorialized in the original subdivision Certificate of Approval. 4. As part of the application for modification, no subdivision construction waivers that were previously granted were retracted. 5. No proposals to further improve Cardinal Drive were offered by the Applicant in order to comply with the roadway design and construction standards outlined in the Douglas Rules and Regulations governing the subdivision of land in Douglas, Massachusetts. That is, the Applicant sought to avail itself of the original waivers, despite the increase in the number of proposed lots. 6. The Board finds that the increase in the intensity of the project warrants construction of the roadway in accordance with subdivision regulations rather than as originally waived. The Board finds that the Project, as proposed, does not comply with such road construction standards and that, as a consequence, the public health and safety could be jeopardized by construction as proposed. 7. The Board finds that the project plans are a mere mark-up of the original and now outdated plans. Original up-to-date plans, in full compliance with the Board's Rules and regulations are required. The Applicant proposed to eliminate the restriction against further subdivision of the prior approved lots, but no actual complying subdivision plans were provided as is required under MGL Ch 41 81W and the Boards'i:M114:: Regulations. P:1Departments1Planning Board1SubdivisionsIBallou-MOD CardinalDrive.doc

9 A Two Lot Definitive Subdivision Plan Modification of a Definitive Subdivision Plan Planning Board Decision Louis Tusino 13 C. r 8. As required under G.L. c 41, 81W, affected pr7erty owners must note their assent to the subdivision modification. life ife!,'. iihht the affected property owners (i.e. the owner of the only other lot in the s6divi. ion) affirmatively and specifically assent to the removal of the restriction against further subdivision beyond the two buildable lots. While such property owners have offered some assent to various aspects of the subdivision modification, they have not assented to the removal of the restriction against further development. Accordingly, per G.L. c 41, 81W, approval cannot be granted, without such assent. 9. The Board finds that the proposed subdivision plan modification application does not make a compelling or persuasive case for removing the original conditions restricting the development parcel to two buildable lots. IV. DECISION & CONDITIONS: Therefore, the Boards vote to approve modifications to the Definitive Subdivision Plan entitled "A Two Lot Definitive Subdivision Plan" dated February 10, 2003 and prepared by Heritage Design Group, 10 River Road, Suite 101, Uxbridge, MA failed. The vote was as follows: Member Yes (Approve) No (Dis-Approve) Abstain Recuse Ernest Marks, Jr. Derek Brown Ebeh Chesebrough Michael Greco Tracy Sharkey Robert Werme, Jr. Michael Zwicker P:IDepartinents1Planning BoardlSubdivisionsIBallou-MOD CardinalDrive.doc Page 5 of 5

10 Agiereinerit 13 CIN I o We, Thinnakone & Soklwry,Sotphido agree to the plan of Guaranteed Builders to usicllie*itel known as Cardinal Drive as their access to their 3 house lots d will relinquish their rights to use Dogwood elane. Thinnakone Souphida -41rs. S'okhitry Souphida 7 /3 Date Date er,42 Louis CoTusino Date

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12 it Complete items 1., 2, and 3. Also complete item 4 if Restricted Delivery is desired. K4 Print your name and address on the reverse so that we can return the card to you Attach this card to the back of the mailplece, or on the front if space permits. lgnature,--, -, 0 Agent, Addressee S. Received by (Printed Name) 0, Date of Delivery T,ii Ai dc:0 26:- 5?4,1;11 ii4 r,r,e, D. isdellvery address different from item'1? 0 Yes If YES, enter delivery address below: 0 No 2. Article Number- (rransfer from service label) PS Form 3811, February , Service Type 0/6ertified Mail 0 Express Mail Registered 043gurn Receipt for Merchandise. 0 Insured Mall 0 C.D.D. 4. Restricted Delivery? (Extra Fee) 0 Yes Domestic Return Receipt M-1540