As you read please this keep in mind that the “criminal standard” is “beyond a reasonable doubt”, but the civil standard is merely that you must convince a jury made up of over taxed, underpaid, over worked people just like us, that it is simply “more likely than not”. That’s the civil standard, that the scales tip one way, just 51% “more likely than not.”

There was a court hearing on Lynne Road Wednesday. No matter what the judge’s decision, it is more than likely Wareham will be sued. It will be sued by the builder or by the residents of Lynne Road and Swift’s Beach or perhaps all of the above. I believe this will happen to Wareham solely due to the actions of Andrews and Burke.  If you pray, pray the builder sues us because if it’s the residents the suit will be for $5,000,000 or more.

The residents of Lynne Road have spent about $20,000 to date simply trying to protect their homes, financial futures and children from a drug treatment facility operating in their subdivision and if the Judge orders a trial for the matter, then their legal fees will be 6 figures. They asked the Town for help and so far the town has decided to sit this one out. That will be a costly mistake. And should the worst-case scenario occur, we would need to be looking for new town counsel, as well as new selectman and several town officials.

Some time back I wrote a piece about Lynne Road wherein I tried to explain the Town’s liability. Clearly, Town Counsel/s read that post because at a subsequent BOS meeting they attempted to mitigate my reasoning by arguing that Town’s are not obligated to be consistent with their application of the rules, vis-à-vis, the way they treat restrictive covenants or rules.

Sadly, the selective application of the rules is the only constant in Wareham.

Rich’s and Jay’s (town counsel) arguments were that simply because the Town enforced those restrictions at one time or another does not bind them to do so in the future. There were data cards evidencing the covenants and now there are none.  They also argued that the Town was not a party to, or a beneficiary of the covenants because Wareham is not a signatory to the covenants and therefore, the Town was not obligated to enforce them and could not therefore be held liable for damages arising from its failure to enforce them.

That folks is one of those “Directed Opinions” I also wrote about. You see all of the above is merely an opinion and, if you listened to Rich (Town Counsel) this past Tuesday evening, it is probably not the opinion he would have given the Selectmen or Mark Andrews had anyone spoken with him at the onset of this matter, rather than after permits had been issued, leases signed and construction virtually completed.

What Rich and Jay were telling everyone was the weak argument and defense they would attempt to use when Wareham gets sued. They were hoping that the legally unsophisticated residents of Lynne Road would take the bait and accept they had no case. Their argument is so weak that when we get sued they won’t even offer a motion to dismiss based on those claims because they’d get laughed out of court. What they said in public was an attempt to lend comfort to the chronically inept and/or corrupt.

What people need to remember is that in any legal action there are always at least two sides and each side has an attorney and each attorney has rendered an opinion to his or her client supporting their position in the matter. Smart people seek advice before acting and avoid litigation whereas in Wareham, it must just be in the water in Town Hall that makes us get it backwards a lot.

What Rich and Jay did not say is that it is the jury who ultimately weighs the evidence and decides whose legal opinion is correct. The point is that regardless of your opinion, pretty much anyone can sue anyone else if they meet a few simple benchmarks, those roughly being standing, you must be a party to the case by being in some way affected by the events in order to sue, and unless you are merely seeking enforcements of some rule or law, you must also have financial damages in order to seek a monetary settlement. You must have been reliant on an understanding or agreement, which was breached or violated, and the case must have legal merit to survive dismissal/summary judgment. Merit is where the opinions come and the judge allows or disallows the suit. Once allowed, it’s “game on” and everyone is in until the jury renders a decision.

We can probably all agree that standing is a given.

The Towns defensive position is clear, as stated above. Lets look at the resident’s merit arguments. Rich claims that the town was not a beneficiary to the covenants. Jay said if it were, the town would be listed on the HOA covenants as a beneficiary and as it is not, Wareham is not obligated to enforcement or consistent application or liability for harm. If you accept that as the only liability for Wareham, and I do not, then the first question is, whose responsibility was it to put the town on the covenants?

The approval letter from the Planning Board to the developer for Lynne Road, who sought and was granted a “cluster” subdivision, is very clear. Among other things it states, as a condition of permitting, the Town requires that the sub division have a Home Owners Association, which would protect the common areas and maintain the easements. It also states that no business or commercial activity would be allowed and, in compliance with the Planning Board’s conditions, these restrictions, amongst others, are contained within the HOA covenants. There were other conditions for the Planning Board’s approval, however these two are key.

The argument in the coming suit will be that those conditions of permitting and approval made the town a beneficiary of the restrictions and therefore bound the town to enforcement, regardless of the town’s negligence thereafter. Consider that if the town did not benefit by those restrictions in some fashion, then why insist upon them. This is one of the very questions the judge will allow a trial to answer.

A jury will decide if Jay’s argument holds water. The resident’s position will be that the town insisted on these protections as consideration for the approval and therefore it was the town’s responsibility, not the developers or residents, to include the town on or in the covenants. I believe a jury will hold it was the Town’s responsibility to put itself on the documents. Jay’s argument is self-serving in that its premise is that, as I did not do my job, you cannot hold me liable for not doing my job.

The residents will claim that the HOA was an agreement between the town and the residents and they relied on the protection of the covenants (reliance) regardless of whether or not the town remembered to follow up. Next, if it is reasonable that it was the town’s responsibility to include itself in the covenants, or was a beneficiary and responsible to the covenants and residents for enforcement, then it was also its responsibility to insure that all town departments were apprised of those conditions and restrictions and that each sought appropriate consent from all parties having standing before issuing permits or approvals. I’ll bet it can be proven that both Andrews and Burke knew of the covenants before permits were issued.

Next will come the relationship between Mr. Andrews and Mark Pacheco and between Pacheco and White, much of which will be circumstantial, but many people including Myles Burke will be put under oath and he will be asked some very interesting questions for which his choices will be to admit that he was instructed to issue the permits by Andrews or commit perjury. His credentials, which Ellen and Walter seem to not care about, will become another nail in Wareham’s coffin, as will every permit he has ever issued. The record will show Andrews manipulated the time frames and meetings to accommodate the builder and that Wareham broke the law by allowing Burke to sign permits illegally and continued to do so after he was ordered to stop. Others will sue. BIZ will testify. I won’t tell you why though, but be assured that the restrictions on disclosure in her settlement contract are not enforceable in sworn testimony.

A jury will be presented with a plausible story of conspiracy and incompetence, which will be more believable than not, as there is no other reasonable explanation for how this happened and incompetence is not a defense against damages.

Others and I know whom said what to whom and when and why and I don’t think we should give the other side much more detail. Let them sweat trying to remember what they did and when and what tracks they left and where they left them.

When a jury hears this story about financial loss, physiological damage and fear for the children, they will have no choice but to conclude that there was, breach, reliance, merit, standing and loss from conspiracy and collusion or incompetence or all of the above, as the record in this matter as to what Andrews and Burke said and did and what the BOS did, said they would do and did not and who is ultimately responsible, is very clear. And remember, when the residents asked the BOS for help the BOS chose to provide cover for Burke and Andrews.
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I will not go into details because it will be part of the complaint, but under oath these idiots will brake and turn on each other like rats fleeing a burning ship and when they do, it will be Wareham that pays the bill.

Damages:

The citizens of Lynne road relied on those covenants and the town being party to those covenants before they made their decisions to buy homes. The Swifts Beach neighbors who attended public meetings when Lynne Road was permitted also relied on those same protections for their property values. Many of the residents of Lynne Road bought homes believing it to be a safe place to raise their children.

If that drug treatment clinic opens at 7 Lynne Road, among the other claims, people will look to be compensated for loss of value. They will seek to sell their homes and will not be able to do so. If you look at the visits by police and other problems at the 426 Main Street group home as a guide, then values will fall, perhaps by as much as 50% or more. Who will want to buy or live there?

All it will take is one or two owners not able to sell homes and the suit will come. It will be 20 odd homes with losses of $150,000 or more each and the suit begins by seeking to force the town to buy every house for $6,000,000+. Maybe we net a loss of $3,000,000 if we can resell them. Then the residents up and down Swifts beach road will pile on. Theirs will be a bit harder argument, but there are more of them so that’s another $5,000,000. If a jury buys into sheer stupidity by the BOS or malice or intent or conspiring acts by the TA and head of inspectional services, then we might see punitive damages, which would be in addition to, or some multiple of the actual damages. That assumes no one gets hurt and no child is molested or hurt, in which case it gets a lot worse.

Win or lose, Wareham is looking at $300,000 in legal fees, with a downside of millions.

If we are lucky then the residents win in court and stop the home’s opening. Then they may only sue Wareham for their legal costs. If they stop the home then the builder sues Wareham and we buy his house for $650,000 or so.

This is why Rich was trying to impress upon the BOS Tuesday evening, that neither they nor their employees as yet have distinguished themselves as rocket scientists and maybe until they do we should just let the adults make the decisions.

And don’t think I have this wrong because you don’t see this suit right away. It will come. Time will be on the Lynne Road resident’s side. The longer the period of time that goes by after the clinic opens, the more evidence of loss and opportunity for a history of police calls and incidents involving the patients of the clinic. So, expect this suit in a year or so. In any case, Wareham will be paying for Andrews’ actions long after he’s gone. I think the residents have 3 to 6 years to sue Wareham depending on the statute of limitations and their claims.