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Court

Massachusetts Unified County

Massachusetts

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Case Information

Filed 2023-10-24
Status Open
Type Zad Appeal From Planning Board, G.l. Chapter 41, 81 Bb
Docket 85 entries

Parties

Plaintiff Gutierrez, Jr., Arthur J.|Gutierrez, Arthur J.|Gutierrez, Gloria M.
Defendant Town Of Boxborough Planning Board|White, Mark|Verner, Rebecca|Vorce, Kathleen|Markowitz, Cindy|Guzzardi, Richard|Keating Connolly, Janet

Lawyers

Docket Entries

  1. ecord Appendix of Exhibits in support of Plaintiffs' Reply Memorandum of Law in further support of their Motion for Partial Summary Judgment and Opposition to Defendants' Cross-Motion for Summary Judgment, filed.
  2. ase assigned to the Fast Track per Land Court Standing Order 1:04.
  3. and Court miscellaneous filing fee Receipt: 444993 Date: 10/24/2023
  4. and Court surcharge Receipt: 444993 Date: 10/24/2023
  5. niform Counsel Certificate for Civil Cases filed by Plaintiff.
  6. he case has been assigned to the F Track. Notice sent. Judge: Smith, Hon. Kevin T. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Kelley A Jordan-Price, Esq. [email protected] Sent On: 11/06/2023 11:46:37
  7. vent Scheduled Judge: Smith, Hon. Kevin T. Event: Case Management Conference Date: 12/18/2023 Time: 09:00 AM
  8. vent Resulted: Case Management Conference scheduled on: 12/18/2023 09:00 AM Has been: Continued For the following reason: Request of Plaintiff(s) Hon. Kevin T. Smith, Presiding Counsel notified via email on 11/14/2023
  9. vent Scheduled Judge: Smith, Hon. Kevin T. Event: Case Management Conference Date: 01/12/2024 Time: 09:00 AM
  10. nswer with Affirmative Defenses, filed.
  11. ummons returned to Court with service on Town of Boxborough Planning Board filed.
  12. ummons returned to Court with service on Richard Guzzardi Member of the Boxborough Planning Board filed.
  13. ummons returned to Court with service on Janet Keating-Connolly Member of the Boxborough Planning Board filed.
  14. ummons returned to Court with service on Cindy Markowitz Member of the Boxborough Planning Board filed.
  15. ummons returned to Court with service on Rebecca Verner Member of the Boxborough Planning Board filed.
  16. ummons returned to Court with service on Kathleen Vorce Member of the Boxborough Planning Board filed.
  17. ummons returned to Court with service on Mark White Member of the Boxborough Planning Board filed.
  18. oint Statement for Case Management Conference, filed.
  19. vent Resulted: Case Management Conference scheduled on: 01/12/2024 09:00 AM Has been: Held via video Hon. Kevin T. Smith, Presiding January 12, 2024. Case management conference held via videoconference. Attorney Kelley Jordan-Price appeared for the plaintiffs. Attorney Adam Costa appeared for the defendants. This is a Planning Board appeal brought pursuant to G. L. c. 41, 81BB. The court noted that two related cases have been filed in this action and asked whether the parties believe these cases should move on parallel tracks. Attorney Jordan-Price stated that there is a common issue of infectious invalidity among all three cases, so it would be ideal to be able to resolve that issue for all three cases at once, but otherwise, the cases diverge somewhat in terms of the issues and parties involved. Attorney Costa agreed with Attorney Jordan-Price's characterization and the desirability of deciding the infectious invalidity issue for all three cases. The court asked whether this is a solely legal issue or whether some discovery may be needed. The parties agreed that there may be factual disputes underlying the issue, so summary judgment may not be appropriate. Following discussion, the court adopted the parties' proposed discovery schedule, with a general discovery deadline of June 1, 2024, expert designations and disclosures by July 15, 2024, and expert depositions completed by August 15, 2024. The court will hold a status conference on August 19, 2024, at 9:00 a.m. (Smith, J.).
  20. otice of Docket Entry: Notice of Docket Entry was generated and sent to: Plaintiff: Kelley A Jordan-Price, Esq. [email protected] Defendant: Adam Joseph Costa, Esq. [email protected] Sent On: 01/16/2024 11:22:31
  21. cheduled Judge: Smith, Hon. Kevin T. Event: Status Conference Date: 08/19/2024 Time: 09:00 AM
  22. lternative Dispute Resolution: Early Intervention Event held. Judge: Smith, Hon. Kevin T.
  23. oint Motion to Extend Pre-Trial Deadlines, filed.
  24. ay 29, 2024: Joint Motion to Extend Pre-Trial Deadlines, ALLOWED. (Smith, J). Judge: Smith, Hon. Kevin T. Notice of Docket Entry was generated and sent to: Plaintiff: Kelley A Jordan-Price, Esq. [email protected] Defendant: Adam Joseph Costa, Esq. [email protected] Sent On: 05/29/2024 16:13:15
  25. vent Resulted: Status Conference scheduled on: 08/19/2024 09:00 AM Has been: Continued Hon. Kevin T. Smith, Presiding
  26. cheduled Judge: Smith, Hon. Kevin T. Event: Status Conference Date: 10/18/2024 Time: 09:00 AM
  27. oint Motion to Extend Pre-Trial Deadlines, filed.
  28. uly 29, 2024: Joint Motion to Extend Pre-Trial Deadlines, ALLOWED. Notice of Docket Entry was generated and sent to: Plaintiff: Kelley A Jordan-Price, Esq. [email protected] Defendant: Adam Joseph Costa, Esq. [email protected] Sent On: 07/29/2024 13:07:37
  29. vent Resulted: Status Conference scheduled on: 10/18/2024 09:00 AM Has been: Continued Hon. Kevin T. Smith, Presiding
  30. otice of Docket Entry: Notice of Docket Entry was generated and sent to: Plaintiff: Kelley A Jordan-Price, Esq. [email protected] Defendant: Adam Joseph Costa, Esq. [email protected] Sent On: 07/29/2024 13:08:27
  31. cheduled Judge: Smith, Hon. Kevin T. Event: Status Conference Date: 12/20/2024 Time: 09:00 AM
  32. efendant, Town of Boxborough Planning Board's Motion for Protective Order, filed.
  33. emorandum of Law in Support of Defendant, Town of Boxborough Planning Board's Motion for Protective Order, filed.
  34. ppendix, filed.
  35. laintiffs' Opposition to Defendant's Motion for Protective Order, filed.
  36. ORRECTION: Due to clerical error, the following correction was made to the docket on September 17, 2024: The corrected language is "(08/01/2024) 'Defendant, Town of Boxborough Planning Board's Motion for Protective Order, filed.' and (08/01/2024) 'Memorandum of Law in Support of Defendant, Town of Boxborough Planning Board's Motion for Protective Order, filed.'" and the following original text is stricken: "(08/01/2024) 'Motion for Protective Order, filed.' and (08/01/2024) 'Memorandum, filed.'."
  37. oint Motion to Extend Pre-Trial Deadlines, filed.
  38. eptember 30, 2024. Joint Motion to Extend Pre-Trial Deadlines ALLOWED. Discovery dates will be discussed and established at the hearing on Defendant's Motion for Protective Order. (Smith, J.). Judge: Smith, Hon. Kevin T. (Counsel notified via email on 09/30/2024)
  39. cheduled Judge: Smith, Hon. Kevin T. Event: Defendant, Town of Boxborough Planning Board's Motion for Protective Order Date: 11/05/2024 Time: 09:30 AM
  40. vent Resulted: Motion scheduled on: 11/05/2024 09:30 AM Has been: Held via video Hon. Kevin T. Smith, Presiding November 5, 2024. Motion hearing held via videoconference. Attorney Cassandra Desjourdy appeared on behalf of the plaintiffs. Attorney Adam Costa appeared on behalf of the defendants, the Boxborough Planning Board and Zoning Board of Appeals. These cases are appeals under c. 40A, 17 of decisions rendered by the Town of Boxborough Planning Board (1) denying a special permit for a private common driveway, and (2) denying site plan approval for a proposed Research and Development Facility at 244 Adams Place in Boxborough. At issue before the court was a motion by the defendants for a protective order to preclude the plaintiffs from taking the depositions of Susan Carter, the Planning Board's consulting engineer; Mark Barbadoro, a former Planning Board chairperson and current member of the Zoning Board of Appeals; and Alexander Wade, the Town Planner. The primary argument in favor of a protective order is that this appeal is de novo and, therefore, the areas of inquiry sought by the plaintiffs are irrelevant to the issues on appeal. Furthermore, the defendants have previously produced all public records and other discoverable information to the plaintiffs and, as a result, subjecting these witnesses to deposition is unnecessary and burdensome. The plaintiffs opposed the protective order on the grounds that the witnesses are in possession of discoverable information that bears, in particular, on whether the Planning Board was unfairly biased or considered information not properly before it in reaching the decisions to deny the relief sought by the plaintiffs. The court took the motion under advisement. Otherwise, the parties reported that most discovery is completed. The court directed counsel to reach an agreement on a mutually acceptable deadline to complete the remaining discovery, assume an expert disclosure deadline of December 1, 2024, and to provide that deadline to the court. Counsel for the defendants represented that he will supplement the defendants' document production by November 8, 2024. The court will schedule a status conference following the close of discovery. (Smith, J.).
  41. otice of Docket Entry: Notice of Docket Entry was generated and sent to: Plaintiff: Kelley A Jordan-Price, Esq. [email protected] Defendant: Adam Joseph Costa, Esq. [email protected] Sent On: 11/07/2024 12:56:39
  42. ovember 8, 2024. Having considered the written and oral arguments of the parties on the Defendant's motion for protective order to preclude the depositions of Susan Carter, the Planning Board's consulting engineer; Mark Barbadoro, a former Planning Board chairperson and current member of the Zoning Board of Appeals; and Alexander Wade, the Town Planner, the motion is allowed, in part, and denied, in part. Regarding Susan Carter, the motion is DENIED as to a deposition that is limited to factual inquiries concerning her role as a peer review consultant for both proceedings and her communications in that role with the board and the applicant. However, the motion is ALLOWED as to any inquiry by the plaintiffs into areas that are in the nature of expert opinion evidence. Mark Barbadoro was a voting member of the Planning Board for the decisions under appeal in these cases. How and why he made decisions during the board's deliberations are not relevant to the trial de novo to be conducted by this court in both cases. The plaintiffs have not established good cause that Mr. Barbadoro has personal knowledge of facts that fall outside of his role in the deliberations as a planning board member and, therefore, the protective order as to his deposition is ALLOWED. Alexander Wade is a town employee. The plaintiffs contend that he may have personal knowledge that suggests bias on the part of one or more Planning Board members during deliberations on the applications filed by the plaintiffs. How the Planning Board members deliberated in reaching the decision in each case is not the issue before the court. Both cases will proceed as a trial de novo. The plaintiffs have not demonstrated that Mr. Wade has personal knowledge of facts that will be admissible at trial. The protective order as to his deposition is ALLOWED. (Smith, J.). Judge: Smith, Hon. Kevin T. Notice of Docket Entry was generated and sent to: Plaintiff: Kelley A Jordan-Price, Esq. [email protected] Defendant: Adam Joseph Costa, Esq. [email protected] Sent On: 11/12/2024 12:52:27
  43. oint Motion for Imposition of Case Deadlines, filed.
  44. ovember 25, 2024. Joint Motion for Imposition of Case Deadlines ALLOWED. Fact discovery to be completed by December 23, 2024. Expert disclosures to be completed by January 10, 2025. Expert depositions to be completed by February 7, 2025. A status conference will be scheduled for a date after the close of discovery. (Smith, J.). Judge: Smith, Hon. Kevin T. Notice of Docket Entry was generated and sent to: Plaintiff: Kelley A Jordan-Price, Esq. [email protected] Defendant: Adam Joseph Costa, Esq. [email protected] Sent On: 11/25/2024 14:47:29
  45. vent Resulted: Status Conference scheduled on: 12/20/2024 09:00 AM Has been: Continued For the following reason: Request of all Parties Hon. Kevin T. Smith, Presiding
  46. cheduled Judge: Smith, Hon. Kevin T. Event: Status Conference Date: 02/12/2025 Time: 09:00 AM
  47. oint Motion to Extend Deadlines, filed.
  48. ebruary 7, 2025. Joint Motion to Extend Deadlines, ALLOWED. The status conference scheduled for February 12, 2025 will be continued. (Smith, J.). Judge: Smith, Hon. Kevin T. Notice of Docket Entry was generated and sent to: Plaintiff: Kelley A Jordan-Price, Esq. [email protected] Defendant: Adam Joseph Costa, Esq. [email protected] Sent On: 02/07/2025 15:26:23
  49. vent Resulted: Status Conference scheduled on: 02/12/2025 09:00 AM Has been: Continued For the following reason: Request of all Parties Hon. Kevin T. Smith, Presiding
  50. cheduled Judge: Smith, Hon. Kevin T. Event: Status Conference Date: 03/26/2025 Time: 09:15 AM
  51. laintiffs' Motion to Exclude the Expert Testimony of Susan Carter or, in the Alternative, to Compel Defendants to Provide an Adequate Expert Disclosure and for Permission to Take Ms. Carter's Expert Deposition, filed.
  52. laintiffs' Memorandum of Law in support of their Motion to Exclude the Expert Testimony of Susan Carter or, in the Alternative, to Compel Defendants to Provide an Adequate Expert Disclosure and for Permission to Take Ms. Carter's Expert Deposition, filed.
  53. ppendix to Plaintiffs' Motion to Exclude the Expert Testimony of Susan Carter or, in the Alternative, to Compel Defendants to Provide an Adequate Expert Disclosure and for Permission to Take Ms. Carter's Expert Deposition, filed.
  54. otion for a Protective Order with Supporting Memorandum of Law, filed.
  55. laintiffs' Opposition to Defendants' Motion for a Protective Order, filed.
  56. pposition to Motion to Exclude Expert Testimony or to Compel a Further Expert Disclosure and Deposition, filed.
  57. vent Resulted: Status Conference scheduled on: 03/26/2025 09:15 AM Has been: Held via video Hon. Kevin T. Smith, Presiding March 26, 2025. Status Conference held via videoconference. Attorneys Kelley Jordan-Price and Cassandra Desjourdy appeared on behalf of the Plaintiffs. Attorney Adam Costa appeared on behalf of the Defendants, the Boxborough Planning Board and Zoning Board of Appeals. These cases are appeals under c. 40A, 17 of decisions rendered by the Town of Boxborough Planning Board (1) denying a special permit for a private common driveway, and (2) denying site plan approval for a proposed Research and Development Facility, and, under c. 41, 81BB, denying subdivision approval for the Plaintiffs' proposed project at 244 Adams Place, Boxborough. Before the court are the Plaintiffs' Motion to Exclude Expert Testimony, or, in the Alternative, Compel Defendants to Provide an Adequate Expert Disclosure and Permission to Take Ms. Susan Carter's Deposition; the Defendants' Motion for Protective Order Precluding a Second Deposition of Susan Carter; and the Plaintiffs' Opposition to said Motion. Plaintiffs' counsel argues that the Defendants' disclosure of Susan Carter, the Planning Board's consulting engineer, as an expert witness is inadequate in terms of the detail provided concerning her expected testimony. Previously, by an order dated November 8, 2024, the court allowed the deposition of Ms. Carter with the limitation that the areas of inquiry relate only to any facts known by Ms. Carter concerning the public hearings on the Plaintiffs' various applications and her involvement as a consulting engineer. Plaintiffs' counsel took Ms. Carter's deposition pursuant to that order. Following colloquy, the court DENIED the Plaintiffs' Motion and ALLOWED the Defendants' Motion for Protective Order. The substance of the expert disclosure of Ms. Carter's anticipated testimony is adequate. However, Ms. Carter's trial testimony will be limited to the scope of the Defendants' disclosure. If the court finds that Ms. Carter has formed new or additional opinions or performed additional work or calculations since her deposition, she will be precluded from testifying about these new or additional opinions absent a full and fair disclosure by Attorney Costa and an opportunity for Plaintiffs' counsel to investigate and/or conduct a further deposition of Ms. Carter concerning these new or additional opinions. Counsel indicated that there are three legal issues that are ripe for summary judgment: (1) whether the doctrine of infectious invalidity renders Lot D unbuildable; (2) whether the Boxborough zoning bylaw permits a common driveway on land zoned for nonresidential uses; and (3) whether an application for a common driveway special permit requires the Board to consider both the criteria identified in the common driveway special permit bylaw and the criteria for all other special permit uses under Boxborough zoning bylaw. The court ordered counsel to confer and jointly propose a briefing schedule for summary judgment motions by Friday, April 4, 2025. The court indicated that it would be inclined to adopt the agreed briefing schedule and will await scheduling a hearing on the motion or motions until all briefs have been filed. (Smith, J.).
  58. otice of Docket Entry: Notice of Docket Entry was generated and sent to: Plaintiff: Kelley A Jordan-Price, Esq. [email protected] Plaintiff: Cassandra Desjourdy, Esq. [email protected] Defendant: Per C Vaage, Esq. [email protected] Defendant: Adam Joseph Costa, Esq. [email protected] Sent On: 03/26/2025 16:02:30
  59. mailed joint report, received. "Pursuant to the Court's March 26 Order, the parties have conferred and jointly propose the following schedule for summary judgment: Summary Judgment Motions: June 27; Opposition Briefing: July 25; Reply Briefing: August 8. Concerning hearing dates, counsel are available in August prior to August 20th, with the exception of August 12th, or September 3-5."
  60. pril 4, 2025. The proposed schedule for summary judgment, sent to the court via email, is APPROVED. Summary Judgment Motions are due to the court by June 27, 2025; Opposition briefing is due by July 25, 2025; Reply Briefing is due by August 8, 2025. (Smith, J.). Judge: Smith, Hon. Kevin T. Notice of Docket Entry was generated and sent to: Plaintiff: Kelley A Jordan-Price, Esq. [email protected] Plaintiff: Cassandra Desjourdy, Esq. [email protected] Defendant: Per C Vaage, Esq. [email protected] Defendant: Adam Joseph Costa, Esq. [email protected] Sent On: 04/04/2025 10:55:02
  61. laintiffs' Motion for Partial Summary Judgment, filed. (Courtesy copy received)
  62. laintiffs' Memorandum of Law in support of their Motion for Partial Summary Judgment, filed. (Courtesy copy received)
  63. laintiffs' Concise Statement of Material Facts in support of their Motion for Partial Summary Judgment, filed. (Courtesy copy received)
  64. ffidavit of Israel Lopez in support of Plaintiffs' Motion for Partial Summary Judgment, filed. (Courtesy copy received)
  65. ffidavit of Carlton M. Quinn, P.E. in support of Plaintiffs' Motion for Partial Summary Judgment, filed. (Courtesy copy received)
  66. eclaration of Kelley A. Jordan-Price, Esq. in support of Plaintiffs' Motion for Partial Summary Judgment, filed. (Courtesy copy received)
  67. ecord Appendix of Exhibits in support of Plaintiffs' Motion for Partial Summary Judgment (I of IV), filed. (Courtesy copy received)
  68. ecord Appendix of Exhibits in support of Plaintiffs' Motion for Partial Summary Judgment (II of IV), filed. (Courtesy copy received)
  69. ecord Appendix of Exhibits in support of Plaintiffs' Motion for Partial Summary Judgment (III of IV), filed. (Courtesy copy received)
  70. ecord Appendix of Exhibits in support of Plaintiffs' Motion for Partial Summary Judgment (IV of IV), filed. (Courtesy copy received)
  71. ssented-to Motion to Extend Deadline, filed.
  72. uly 28, 2025. Assented-to Motion to Extend Deadline, ALLOWED. The Defendants' deadline for filing opposition briefing is hereby extended to August 22, 2025. Reply briefing to opposition papers are now due September 5, 2025. (Smith, J.) Judge: Smith, Hon. Kevin T. Notice of Docket Entry was generated and sent to: Plaintiff: Kelley A Jordan-Price, Esq. [email protected] Plaintiff: Cassandra Desjourdy, Esq. [email protected] Defendant: Per C Vaage, Esq. [email protected] Defendant: Adam Joseph Costa, Esq. [email protected] Sent On: 07/28/2025 16:07:41
  73. efendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment and Cross-Motion for Summary Judgment with Supporting Memorandum of Law, filed.
  74. efendants' Response to Plaintiffs' Statement of Facts with Additional Material Facts, filed.
  75. ffidavit of Adam J. Costa, Esq. in support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment and Cross-Motion for Summary Judgment, filed.
  76. efendants' Supplemental Appendix (Volume 1 of 3), filed.
  77. efendants' Supplemental Appendix (Volume 2 of 3), filed.
  78. efendants' Supplemental Appendix (Volume 3 of 3), filed.
  79. ertificate of Service, filed.
  80. laintiffs' Assented-to Motion to Extend Summary Judgment Deadline, filed.
  81. ugust 27, 2025. Plaintiffs' Assented-to Motion to Extend Summary Judgment Deadline, ALLOWED. Reply briefing to opposition papers are now due on September 25, 2025. (Smith, J.). Judge: Smith, Hon. Kevin T. Notice of Docket Entry was generated and sent to: Plaintiff: Kelley A Jordan-Price, Esq. [email protected] Plaintiff: Cassandra Desjourdy, Esq. [email protected] Defendant: Per C Vaage, Esq. [email protected] Defendant: Adam Joseph Costa, Esq. [email protected] Sent On: 08/27/2025 11:05:31
  82. laintiffs' Reply Memorandum of Law in further support of their Motion for Partial Summary Judgment and Opposition to Defendants' Cross-Motion for Summary Judgment, filed.
  83. eclaration of Kelley A. Jordan-Price, Esq. in support of Plaintiffs' Reply Memorandum of Law in further support of their Motion for Partial Summary Judgment and Opposition to Defendants' Cross-Motion for Summary Judgment, filed.
  84. ffidavit of Israel Lopez in support of Plaintiffs' Reply in further support of their Motion for Partial Summary Judgment and Opposition to Defendants' Cross-Motion for Summary Judgment, filed.
  85. laintiffs' Responses to Defendants' Statement of Facts and Additional Material Facts, filed.

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