MIDDLESEX, S.S. COMMONWEALTH OF MASSACHUSETTS CIVIL ACTION NO. JACK SPERANZA, STEVEN BRYANT, DOROTHY MARUSKA, ) VICKI HOLT, LEWIS HOLT, KATHERINE DLUGOLECKI, ) THADDEUS DLUGOLECKI, MAURA SHEA, SUSAN LAMPERT, ) GERALD LAMPERT, ANNE SCHNEIDER, MICHAEL LAVOIE, ) DONNA LAVOIE, RICHARD BROUSSEAU, GARY HAROIAN, ) MARY LOU HAROIAN, DAVID HAMACHER, R.J. DOURNEY, ) PETITION UNDER VASCEN BOGIGIAN, HENRY KUNICKI ) M.G.L. c. 40, 53 TO ) RESTRAIN ILLEGAL PETITIONERS ) APPROPRIATIONS v. ) ) TOWN OF HOPKINTON ) RESPONDANT ) PARTIES 1. Plaintiff Jack Speranza is a resident and taxpayer in the Town of Hopkinton, Middlesex County, Massachusetts, residing at 82 Main Street. He is also an appointed member of the Town of Hopkinton Community Preservation Committee ( CPC ), having served in this capacity since January 2006. 2. Plaintiff Steven Bryant is a resident and taxpayer in the Town of Hopkinton, Middlesex County, residing at 60 Downey Street, Hopkinton, MA. 3. Plaintiff Dorothy Maruska is a resident and taxpayer in the Town of Hopkinton, Massachusetts, residing at 5 Alprilla Farm Road. 4. Plaintiffs Vicki and Lewis Holt are residents and taxpayers in the Town of Hopkinton, Massachusetts, residing at 50 North Mill Street. 5. Plaintiffs Katherine and Thaddeus Dlugolecki are residents and taxpayers in the Town of Hopkinton, Massachusetts, residing at 10 Nicholas Road. 6. Plaintiff Maura Shea is a resident and taxpayer in the Town of Hopkinton, Massachusetts, residing at 25 Thayer Heights Road. 7. Plaintiffs Susan and Gerald Lampert are residents and taxpayers in the Town of Hopkinton, Massachusetts, residing at 5 Wellington Way. 8. Plaintiff Anne Schneider is a resident and taxpayer in the Town of Hopkinton, Massachusetts, residing at 39 Glen Road. 9. Plaintiffs Michael and Donna Lavoie are residents and taxpayers in the Town of Hopkinton, Massachusetts, residing at 3 Blueberry Lane. 1
10. Plaintiff Richard Brousseau is a resident and taxpayer in the Town of Hopkinton, Massachusetts, residing at 2 Westcott Drive. 11. Plaintiffs Gary and Mary Lou Haroian are residents and taxpayers in the Town of Hopkinton, Massachusetts, residing at 31 Tammer Lane. 12. Plaintiff David Hamacher is a resident and taxpayer in the Town of Hopkinton, Massachusetts, residing at 42 Walcott Valley Drive. 13. Plaintiff R.J. Dourney is a resident and taxpayer in the Town of Hopkinton, Massachusetts, residing at 18 Hearthstone Road. He is also an elected member of the Town of Hopkinton Planning Board, having served in this capacity at all relevant times hereto. 14. Plaintiff Vascen Bogigian is a resident and taxpayer in the Town of Hopkinton, Massachusetts, residing at 204 Winter Street, Hopkinton, MA. 15. Plaintiff Henry Kunicki is a resident and taxpayer in the Town of Hopkinton, Massachusetts, residing at. He is also an appointed member of the Town of Hopkinton Community Preservation Committee, having served in this capacity since the spring of 2006. 16. The defendant Town of Hopkinton is a municipality incorporated under the laws of Massachusetts. STATEMENT OF FACTS 17. In or around 1999, pursuant to a vote of the Hopkinton Town Meeting, the General Court authorized the establishment of the Town of Hopkinton Open Space Preservation Fund. Since that time, Hopkinton Town Meeting has appropriated or otherwise reserved monies in this fund to be utilized to finance the purchase of real estate within the Town for preservation purposes. 18. Following the General Court s enactment of M.G.L. c. 44B (the Massachusetts Community Preservation Act ), Hopkinton Town Meeting voted to establish and levy taxes for a municipal Community Preservation Fund. Since that time, Hopkinton Town Meeting has appropriated or otherwise reserved monies in this fund for permitted purposes under the Act. 19. Prior to the spring of 2006, officials for the Town of Hopkinton identified for potential purchase a tract of real estate located within the Town s borders adjacent to Lake Whitehall and other town-owned property. 20. In or around May 2006, the Hopkinton Open Space Preservation Committee ( OSPC ) negotiated an agreement (the Agreement ) to purchase from Ronald Nation, Trustee (the Seller ), approximately 20.06 acres of the previously identified tract (the Whitehall Property ). 21. Less than six months prior to the OSPC s negotiation of the Agreement, Mr. Nation purchased a tract of land containing the Whitehall Property for approximately $1.8 million. 22. The Agreement called for the town to purchase the Whitehall Property for a total sum of $3 million dollars. After application of a required credit / donation, the net cost to the Town for purchase of this property equaled $2.75 million. 23. Approximately one year prior to the Agreement (during the spring of 2005), the Hopkinton CPC voted to recommend that Town Meeting appropriate $1.8 million dollars from CPC Funds toward the purchase of the purchase of the Whitehall property. 2
24. Immediately prior to or contemporaneous with the Agreement, the Hopkinton CPC reaffirmed its vote of approximately one year earlier, and voted to further recommend the appropriation of up to an additional $700,000 in CPC funds to underwrite the borrowing of like amount required to finance the purchase of the Whitehall Property. 25. Immediately prior to or contemporaneous with the Agreement, the Hopkinton OSPC voted to recommend the appropriation of $250,000 from the OSP Fund to finance the purchase of the Whitehall Property. 26. At all times leading up to and at the time of the Town s execution of the Agreement, the OSPC contracted for and obtained a single market appraisal for the Whitehall Property. This appraisal was completed in June 2005 by Elliott, Gottschalk & Associates ( Elliott Appraisal ). A copy of the Elliott Appraisal is on file with the Town of Hopkinton, a true and accurate copy of which is annexed hereto as Exhibit A. 27. By its terms, the Elliott Appraisal valued the Whitehall based, in large part, upon the Town s anticipated approval of a 37 unit townhouse development that had been applied for by the Seller. 28. The proposed townhouse development was denied by the Town s Planning Board in late 2005/ early 2006. 29. The Planning Board ultimately approved development of a 9-lot residential sub-division sometime during the early part of 2006. This approval was appealed by both the applicant (challenging the approved plan as too limiting) and an abutter (challenging the approved plan as too expansive). 30. The Elliott Appraisal contained three valuations for the Whitehall Property: $4.625 million if fully developed with 37 townhouse units, $2.3 million in its undeveloped state (but with approval of the townhouse project), and $1.8 million for the property as is (i.e. without any project approval). 31. On or about May 4, 2006, Hopkinton Town Meeting voted to accept the recommendation of the CPC and OSPC regarding the proposed purchase of the Whitehall property. The only data concerning valuation of the Whitehall Property on the date of this vote was the now invalid Elliott appraisal obtained approximately one year earlier. 32. On or about May 31, 2006, the OSPC received an appraisal report concerning the Whitehall Property it contracted for with William H. King (the King Appraisal ). A copy of the King appraisal is on file with the Town of Hopkinton, a true and accurate copy of which is annexed hereto as Exhibit B. 33. The King Appraisal essentially determined the market value of the Whitehall Property to be approximately $2.0 million, based in large part upon the Town s actual approval of a 9-unit residential sub-division. 34. On or about July 10, 2006, the OSPC received an appraisal report concerning the Whitehall property it contracted for with Handverger & Associates (the Handverger Appraisal ). A copy of the Handverger appraisal is on file with the Town of Hopkinton, a true and accurate copy of which is annexed hereto as Exhibit C. 35. The Handverger Appraisal essentially determined the market value of the Whitehall Property to be approximately $2.05 million, based in large part upon the Town s actual approval of a 9-unit residential subdivision. 36. On or about September 2, 2006, the OSPC contracted with Thomas J. Mulhern & Associates to conduct an appraisal of the Whitehall Property (the Mulhern Appraisal ). A copy of the Mulhern appraisal is on file with the Town of Hopkinton, a true and accurate copy of which is annexed hereto as Exhibit D. 3
37. Prior to the Town s engagement of the Mulhern firm, it had been retained by the Seller of the Whitehall Property to perform an appraisal of the parcel under the proposed Purchase Agreement. 38. Upon information and belief, the Seller had secured the services of the Mulhern firm in response to the data, analysis, and opinions of market valuation contained within the King and Handverger appraisals. 39. The Mulhern Appraisal essentially determined the market value of the Whitehall Property to be $2.685 million. 40. Subsequent to the OSPC s receipt of the Mulhern Appraisal, it elected to renegotiate the terms of the Agreement with the Seller, proposing to purchase the Whitehall Property for the value determined therein the sum of $2.685 million. 41. The Town s proposed purchase of the Whitehall Property is scheduled to be consummated on Monday, October 16, 2006. COUNT I IN THE NATURE OF INJUNCTIVE RELIEF 42. The allegations contained in paragraphs 1 41 of this Complaint are incorporated by reference as if fully set forth herein. 43. M.G.L. c. 40, 53 empowers not less than ten taxable inhabitants of a Town to petition the court to restrain that Town from expending money or incurring obligations for a purpose or in a manner other than that for which the Town has the legal and Constitutional right. 44. M.G.L. c. 44B, 7 provides that only a town s legislative body is authorized to appropriate funds collected under the State Community Preservation Act. 45. M.G.L. c. 44B, 5(b)(3)(f) limits the amount a city or town is authorized to expend for the purchase of real estate when utilizing CPC Funds authorized under the State Community Preservation Act. Such expenditures can be for no more than the value of the property as determined by such city or town through procedures customarily accepted by the appraising profession as valid. 46. At the time the Hopkinton Town Meeting approved the use of CPC funds to assist with the proposed purchase of the Whitehall Property, the Agreement called for a sales price in excess of the value of the property as determined by such city or town through procedures customarily accepted by the appraising profession as valid. 47. Of four separate appraisals secured by the Town, only one purports to establish the market value of the Whitehall Property at an amount contracted for under the purchase Agreement. This appraisal was secured in September 2006 from an appraiser originally retained by the Seller. 48. M.G.L. c. 40, 14 limits the amount a city or town is authorized to expend for the purchase of real estate when utilizing funds from sources other than the Community Preservation Fund. Such expenditures can be no more than twenty-five per cent in excess of its average assessed valuation during the previous three years. 4
49. The approximate assessed valuations of the Whitehall Property for the Fiscal Year ending June 2004 through June 2006 are $569,800.00, 705,000.00, and 742,900.00, respectively. These assessments include a private residence that is NOT part of the transaction at issue in this petition. 50. At the time the Hopkinton Town Meeting approved the use of Open Space Preservation Funds to assist with the proposed purchase of the Whitehall Property, the Agreement called for a sales price in excess of twenty-five per cent in excess of its average assessed valuation during the previous three years. 51. The Town of Hopkinton Open Space Preservation Fund By-law, Section 6, provides, in relevant part, as follows: The Commission may expend any portion or all of the fund for the purposes of acquiring open space and undeveloped land in the town upon the prior approval of the planning board, the board of selectmen, and the town meeting of the town. (emphasis not in original). 52. Official records and minutes relating to official business of the Hopkinton Planning Board and Board of Selectmen are on file with the Hopkinton Town Clerk. On Wednesday, October 11, 2006, the Planning Board voted for the first time to approve the anticipated expenditure of Open Space Preservation Funds contemplated for the Whitehall Property purchase. Upon information and belief, the Board of Selectmen have yet to so vote. 53. At a Board of Selectmen meeting held Tuesday, October 11, 2006, Town Counsel Richard DeAngelis stated the Inspector General s office was actively investigating whether the Town is in compliance with unspecified legal requirements associated with the proposed Whitehall Property purchase. Statements made at this meeting suggest the Town may elect to proceed with this proposed transaction on October 16 regardless of whether the Inspector General has made any final determinations by that time. 54. Based upon the foregoing, substantial questions exist as to whether the Town of Hopkinton has the legal or Constitutional authority to proceed with the Whitehall Purchase as it is presently structured. The risk of harm to the public interest is substantial if the Whitehall Purchase is allowed to proceed before existing questions regarding the Town s authority to engage in this transaction are resolved. COUNT II IN THE NATURE OF DECLARATORY RELIEF 55. The allegations and statements contained in paragraphs 1 54 of this Complaint are incorporated by reference as if fully set forth herein. 56. M.G.L. c. 40, 53 empowers the court to make a determination as to whether the town possesses the legal or Constitutional authority to proceed with the actions at issue. 57. This determination has significant public significance, and can be resolved without any dispute as to the facts presented. 5
WHEREFORE, the plaintiffs respectfully request this Honorable Court order the following relief: 1. A preliminary and potentially permanent order enjoining the Town of Hopkinton and its various bodies politic from finalizing the proposed purchase of the Whitehall Property as presently structured. 2. A judgment declaring whether the Town has the legal or Constitutional authority to complete the Whitehall Property purchase as presently structured; 3. Such other relief as the Court deems just and appropriate. DATED: October 12, 2006 By: Jack D. Speranza, Esq. BBO # 567 885 82 Main Street Hopkinton, MA 01748 508-847-3660 6
COMPLAINT VERIFICATION I, Jack D. Speranza, depose and state the following under oath: 1. I am a resident of the Town of Hopkinton, Middlesex Country, and an attorney licensed to practice law in the Commonwealth of Massachusetts. 2. I have read the foregoing complaint and declare the facts contained therein to be true to the best of my knowledge, understanding and belief. 3. I have also reviewed the Exhibits annexed to the foregoing complaint, and declare these to be true and accurate copies of originals in my possession and/or on record with the Town of Hopkinton. Sworn to under the pains and penalties of perjury this day of October, 2006. Jack D. Speranza 7
Exhibit A
Exhibit B
Exhibit C
Exhibit D