MWDN: Gulbankians plan to continue legal battle

by beth on August 13, 2013

The Metrowest Daily News reports that the Gulbankians’ lawyer faced off with Town Counsel Aldo Cipriano at the Thursday night Planning Board Meeting. Boston attorney Sandy Matathia represented the Gulbankian family at the August 8th meeting. Matathia is apparently the eight lawyer to represent the family in their ongoing legal battle with the town.

On Friday, I shared MWDN’s report that the town is pursuing $126,600 in fines from Gulbankians for zoning violations. This solicited a slew of comments on the issue. Many passionately supported the family, while others believed the ZBA was working within confines of the law.

Since then, MWDN reported on the discussion at the Planning Board meeting Thursday night. The board was scheduled to review a petition from the Gulbankians to review their permit situation. On advice of Cipriano, they voted against the review. Instead, they were witnesses to the exchange between attorneys.

The two attorneys engaged in a legal back-and-fotrth for several minutes, with Matathia contending that the Worcester Superior Court decision, though upholding the ZBA’s order, didn’t opine that the new permit was necessary in the first place.

Cipriano disagreed. He also contended that the town was forced by the family’s actions (reneging on previous agreement) to impose fines.

“(It’s) something none of us wanted to do,” he said. (But) if we didn’t, it sends a message that you can violate (zoning) and follow the Gulbankian roadmap, and we will not fine you,” he said.

Matathia made it clear that he believed the Gulbankians were within their rights to operate the businesses on the property without any new permits. He said that he would pursue their rights to the “bitter end”.

For the full MWDN story, click here.

For the history of coverage on this legal battle, click here.

1 Townie August 13, 2013 at 9:15 AM

I’m very excited to read this today! I’m glad the Gulbankian’s have a lawyer standing their ground and barking back at Cipriano.

“I’m being paid with tax dollars far beyond the necessity of what taxpayers should be required to pay,” Cipriano said.

This isn’t about you. This is about a family you’re trying to put out of business. I’ll gladly pay you to lose this battle.

2 Frank Crowell August 13, 2013 at 8:59 PM

I would not be shedding any tears if I heard Cipriano were replaced. Can that be an article at the next TM?

3 concerned_resident August 14, 2013 at 5:46 PM

Atty Cipriano needs to be replaced. He creates problems – doesn’t solve them. His argument that enforcement is needed or residents will ignore zoning ordinances and regulations is BS…. a smoke screen argument for pushing his agenda (create legal turmoil, prolong disputes and then pad his billing to the town for his ‘valuable services’). It is so self-serving its laughable. Then there is the issue of who benefits after a lame ass zoning violation is enforced …. sometimes leading to forced sale of property, etc.

We need a town counsel who stick to the legal analysis of our ELECTED town officials decisions….. not elected officials who defer to Cipriano for policy decisions as well.

Also ZB members who have commercial operations in town should especially be above reproach…. their operations should be squeaky clean if you want to wag your finger at other businesses. Do any of these ZB members store equipment, trucks, etc on their property illegally (without permits)? Are these sites located near environmentally sensitive areas? Who monitors the ZB’s hen house? The wolves or the Bd of Selectmen, er, I mean the sheep?

4 Tim Martel August 14, 2013 at 6:14 PM

That is quite a bold accusation against Town Counsel, but you’ve made it both anonymously and without any specifics so I can’t say it carries much weight.

I can only speak to my own experience with Mr. Cipriano during my time on the Town Manager Ad hoc Committee, and I can tell you that his billable time was not excessive by any measure and that his legal advice consistently focused on lowering the risk of dispute and legal turmoil.

5 Frank Crowell August 14, 2013 at 7:18 PM

Concerned – you have completely summarized why this stunk from the start. I do not care how many lawyers the Gulbankians have hired and I do not care what mediation services have not been pursued – my guess is not many other people do either.

6 Robert Epstien August 15, 2013 at 11:39 AM

Dear Concerned_Resident

Town council and the ZBA board are just upholding the zoning bylaws that the residents of Southborough voted in, you cant have it both ways, you either comply with zoning or you dont, we all live under the same laws. Yes it’s to bad that it has gotten to this, Mr Gulbankian should have taken the money he’s spent on the 4 lawyers he has hired and used it to comply with the regulations. As far as your comment about certian ZBA members goes, if you have something to say, then say it !!, dont beat around the bush, i am quite sure if there where actual violations going on you would have brought it up to the appropriate authorities.

7 DICK,BETTE HOUS NOWTON August 13, 2013 at 1:34 PM

I SAY BUYER BEWARE. YOU KNEW GULBANKIANS WAS THERE WHEN YOU BOUGHT YOUR PROPERTY, NOW YOU ARE OFFENDED!!!!! THE HOMESTEAD WHERE THE FARM WAS (BET YOU DON’T EVEN KNOW WHERE IT WAS) PROVIDED VEGETABLES. MIKE THEN WENT ON TO PROVIDE SCHOOL BUS SERVICE (DIDN’T HAVE TO WORRY ) SENIOR CITIZEN TRIPS FLOWERS FOR MANY A SOUTHBORO BRIDE. THE MACHINE SHOP IS SOUGHT FOR MANY AN OVERSEA CUSTOMER, TRUST WORTHY AND HONEST YOUNG MEN. COME ON YOU LITTLE CESARS , A STROKE OF A PEN CAN SAVE A FAMILY. LETS SEE IF YOU CAN MAN UP AND DO THE RIGHT THING.

8 losing sympathy August 13, 2013 at 7:54 PM

I think this is a case that needs to won in the court of public approval, and it’s hard to get there when you’ve hired eight different lawyers. Any guesses as to why they’ve gone through so many lawyers???? I’ll make my point simply. When I first became aware of this, I felt bad for the family and hoped for a quick settlement… If I recall correctly, there was a person in town who volunteered to mediate the situation….why didn’t that happen? Why not try again? If the position is that there is room for compromise, then this could be a very expensive mistake…….

9 Tim Martel August 14, 2013 at 12:44 PM

I feel that the Gulbankians have been, and continue to be, going about this fight the wrong way. The ZBA and the court system are not the battle ground they should be choosing. The ZBA is a judicial body and cannot create law or enforce law; they merely apply the law. And the law in this case is against the Gulbankians. The courts have made that abundantly clear.

What the Gulbankians should do is get a warrant article put together and take it to Town Meeting to change the law. I’ve offered to help with this in the past, and I do so again. The town seems to be overwhelmingly supportive of the family and so their chance of winning at Town Meeting is good (assuming their supporters show up to vote at Town Meeting).

This option has been suggested from the beginning, and it would have avoided this entire issue. Instead, the family seems intent on defying enforcement orders and trying to win in the courts. The end result will be massive fines and legal fees for the family, which will be well beyond the costs to implement the ZBA conditions that started this fight in the first place. And, of course, there will be the wasted tax dollars for us.

10 resident2 August 14, 2013 at 5:02 PM

I dont think they care one bit about everyone whos taxes are paying for this fiasco. Mike & family want what they want and how they want it. if in fact they cared at all about the town, they wouldnt be bleeding us dry in legal fees. they are stubborn and losing sight and WE are paying the price. RIDICULOUS!

11 SouthSider August 15, 2013 at 5:51 PM

I think this entire affair is a mess and the costs to dispute it certainly outweigh any final advantage either party could hope to achieve… but I hardly think the town’s share of these legal fees is “..bleeding us dry.”

As someone who has attended many Town Meetings and reviewed and voted on our budget every year, I never felt that our overall legal fees were too high. I agree with Mr. Martel’s perception of the town’s attorney.

12 Roy Palmer August 16, 2013 at 7:40 AM

Tim and south sider,

you don’t think the overall legal fees of Atty Cipriano are too high?

How about this quote from the Metro West news by Cipriano himself..

“”I’m being paid with tax dollars far beyond the necessity of what taxpayers should be required to pay,” Cipriano said.

It would seem that Atty Cipriano, himself ,disagrees with your assessment of the legal fees…

13 Pat Q. August 16, 2013 at 12:29 PM

I believe you are the 2nd person to take his statement out of context and miss his point. In the MWDN article where his statements were quoted, he said this first….

“Cipriano disagreed, saying that Matathia – whom he said is the Gulbankians’ eighth lawyer – doesn’t have all the same facts he does. He said he was frustrated at the family’s continued attempts to fight what he sees as a losing battle.”

and THEN his statement about being paid with tax dollars beyond what is necessary. He is NOT saying he is overpaid, but that this legal battle is being unnecessarily dragged out on the part of the Gulbankians leading to the ongoing need for his services……”beyond the necessity of what taxpayers should be required to pay”.

I other words, he thinks the Gulbankians had a way to cut their losses, refused it, and now the town must continue to pay him as this drags out even longer.

14 southsider August 19, 2013 at 2:52 PM

I think that Pat Q has it correct and the town’s attorney is simply saying that the ongoing battle is running up unnecessary bills for the town. To suggest that these legal bills “..bleed us dry”… is simply exaggerating the facts.

15 Greg K August 16, 2013 at 11:36 AM

I decided to go to the town hall in Southboro to look up the record on this confusing issue of the Gulbankians permit or non-permit.

Here is what I found:

In a letter dated May 5, 1986, from Michael G Gulbankian to the Board of Selectman, it says, “The wooden and steel building is to be used for agricultural equipment, maintenance and repair of same and antique equipment.”

So it is obvious, by the admission of “antique equipment” within this letter that the Gulbankians never mislead anyone with regard to what they were doing on the property.

ACCORDINGLY:

A building permit was unanimously approved and issued to the Gulbankians a little over a month after the letter to the Board of Selectman by Michael Gulbankian, on June 17, 1986.

On that permit which I have seen it says its nature is a, “Public Garage”. There are no distinctions for buses or anything else for that matter. So that seems to allow for even a wider range of use options for the Gulbankians than its current use.

Some years later and addition was made to the building which is used mainly for storage and occasional bus repair. So there is no conflict there as well.

So it appears to me after seeing this with my own eyes that the Gulbankians have been virtually raped in this entire matter. None of this should have ever happened. The condo owners had no right to complain because the signed off on the properly permitted business in the first place and the town had no business starting this mess with the Gulbankians which has cost them a fortune in legal and other fees.

Unless I am missing something here , this entire matter seems to be a fraudulent joke on the Gulbankians and the Southboro Community at large.

16 Roy Palmer August 16, 2013 at 1:26 PM

Greg K,

Seems you have a smoking gun here. Thanks for the info.

Aldo and board members seems, as Ricky Ricardo used to say, you have some ‘splainin’ to do…

Pat Q,
It’s not Mr. Cipriano’s business to be frustrated about the Gulbankians fight to maintain their livelihood if his frustration is contrary to their existence. . Many of the so called 8 lawyers were lawyers of the same firm so that’s a little misleading. But who cares. Many people hire family lawyers and lawyers who say they are knowledgeable and can do the job but do not do their job. Their lawyers are lack of is irrelevant to the subject anyway.

I think you would be better served reading what Greg K has uncovered with regards to the permits rather than attempting to white wash what has clearly been an absurd exercise in abuse of power.

17 Pat Q. August 16, 2013 at 3:50 PM

Dear Mr. Palmer,

If you took the time to read my post, you would see I was not taking sides in my comment……at all. I was merely trying to clarify a statement that two different people seemed to misunderstand. People were jumping on Mr. Cipriano as if his statement implied an admittance of being overpaid. Reading his statement IN CONTEXT ….clearly that was not what he meant.

Please don’t suggest “I would be better served by reading what Greg K. has uncovered” and accuse me of attempting to “white wash what has clearly been an absurd exercise in abuse of power”. I have no idea how you came up with those accusations based on my post above. I was merely trying to correct how people were misreading his statement which was taken out of context. I would stand up for either “side” if what they said was purposely twisted and used to perpetuate a lie.

If you read any of my past posts on this topic you would see that I actually am in the camp of supporting the Gulbankians.

We would all benefit from sticking to facts, not perpetuating misread statements and not spewing angry accusations. Feeling strongly or passionately that a family has been wronged is not a license for unfounded accusations.

18 SB Resident August 16, 2013 at 1:27 PM

You seem to be missing something here. This isn’t about a building permit, it is about the variance required to run a business on a residential property. Before assuming that this is a fraudulent joke, I would give the town, the lawyers, and the courts the benefit of the doubt that if you find the document that gives them the right run an engine repair business on the site, that it will specifically say bus on it.

19 Roy Palmer August 16, 2013 at 2:17 PM

If you are giving a building permit to construct a building for a “Public Garage” and antique equipment I would think that means there was a variance to do the work described on the building permit or the town would have not given the permit to construct the building in the first place.

Nothing else makes any sense

Yes we should always give the government and lawyers the benefit of the doubt..They never mislead us…..

20 Tim Martel August 16, 2013 at 3:49 PM

Was the variance provided specifically for the Gulbankian Bus Company?
If so, when that company closed in 2006 was the variance null and void?
If yes, did the machine shop then operate for 4-5 years without a variance?
If yes, when it was discovered, did the town offer a new variance?
If yes, did the family a) comply with conditions, or b) ask Town Meeting to change their zoning to obviate the need for a variance?

21 Frank Crowell August 16, 2013 at 8:05 PM

Sounds like your offer to “moderate” was an offer to throw the Gulbankians under the bus……….figuratively speaking of course.

22 Tim Martel August 16, 2013 at 10:49 PM

Selectmen Rooney made an offer to “moderate”, I believe.

I offered to help the family prepare a warrant article for Town Meeting, gather the required signatures, and present their case to Town Meeting. That doesn’t mean I need to agree with their decision to ignore the cease and desist order, or their choice to take the town to court yet again.

Any other facts I can help you with, Frank?

23 Frank Crowell August 17, 2013 at 4:29 PM

I stand corrected.

24 jim foley August 16, 2013 at 3:21 PM

As I understand it I believe the building inspector was the one who originally decided they were not in proper compliance. After responding to the complaint from the neighbors on the hill behind them. about the busses Now that the building inspector has decided to move on and his opinion should no longer have any deciding factors on this issue . will the town continue to fight to uphold his opinion? or would it be easier for the town to change direction?

25 Al Hamilton August 16, 2013 at 5:00 PM

The reality is that the Gulbankians are entitled to due process. That includes appeals ect. If we are complaining about the cost of enforcing the rules then I am forced to one of 2 conclusions.

1. We were not serious when we made the rules because we were not prepared for the bear the inevitable challenges to the rules. In that case we should really change the rules asap.

2. We are not certain we can make the rules stick which is the worst of all outcomes since we spend the money to defend them and then lose. (We did this in the past with the abuse of female police officers).

I am not enthusiastic about spending a lot of money on legal fees. I would much prefer to spend the money on teachers, firefighters, police officers etc. Perhaps we should reconsider how far we are willing to constrain the activities of our fellow citizens. More freedom for individuals might just the the solution.

My understanding is that the BOS has broad authority to settle matters like this. Perhaps the instructions should be given to Town Counsel, in no uncertain terms, to settle this sad affair.

26 Tim Martel August 16, 2013 at 11:25 PM

I don’t believe the BOS has any jurisdiction in the matters of the ZBA, other than the power to make appointments and to remove members for cause. The BOS could instruct Town Counsel not to challenge the family’s appeal in the courts, but that is an extreme action and a bad precedent (particuarly when the courts have already judged in the ZBA’s favor)..

In regards to complaining about the cost of the town repeatedly defending itself, bear in mind that the town had chosen not to fine the family (what would have been a large sum of money) after the courts ruled in the town’s favor. The long grace period offered by the town after the court’s decision should have been used by the family to either comply with the conditions of the variance (as they promised they would) or to take a warrant article to Town Meeting. Instead, the family did nothing except continue to run the shop. So when the grace period ended, the town started to fine. Should the town be sued for this? Should taxpayers be happy about further legal costs?

There is time, I believe, to get an article on the warrant for the Special Town Meeting this fall. It makes alot more sense than going to the courts again.

27 Al Hamilton August 17, 2013 at 7:47 AM

Tim

I believe that once matters reach the courts the BOS is the body that has the authority to settle matters not the body who’s actions may have initiated the complaint. The BOS is responsible for the legal budget and I believe that settling suits is one of the powers that resides with the Selectmen.

I agree with you that the Legislative approach is a potential solution. I am not sure that instructing Counsel to not challenge the appeal is a really bad solution. We have seen this at the Federal Level where the Obama admin chose not to defend DOMA. The Selectmen have a finite legal budget and must make the best use of it. Perhaps this is not a “best” use.

Any solution to this mess is not going to be pretty.

28 Tim Martel August 17, 2013 at 9:28 AM

You’re entirely correct about the Selectmen’s ability to settle suits, if the claim is legal and valid. The Gulbankians lost their appeal in superior court, and I believe they dropped their appeal in the appeals court. Do they still have a valid claim?

I don’t know if the principle of res judicata is in effect, but if so then that would void the suit.

Also at issue is the timeframe for filing an appeal, which has quite possibly passed. So if the family cannot file a suit/appeal, the BOS cannot settle it.

Assuming that the Gulbankians can still proceed with an appeal in the Worcester Appeal Court, it doesn’t automatically follow that the judge will rule in their favor if the town doesn’t offer a defense because the scope of review is procedural (I believe). Perhaps the BOS might be able to settle in that case – I don’t know if the procedures of that court would allow it.

The only viable path forward goes through Town Meeting.

29 Roy Palmer August 17, 2013 at 12:19 AM

In the spirit of trying to end this issue the Gulbankians did come to the meeting armed with a plan compromise. They would pave the lot as the town insisted by the town and do a drainage system , the other element of the towns requirements. These were less expensive ways of satisfying the towns requirements but still with the same desired effect ..

But Mr. Cipriano insisted that the Gulbankinians could not present the plan. A plan they had to pay thousands of dollars to be drawn up.

So though Attorney Cipriano insisted that night that he is not the “boss” around here , he seemed able to shut down the Gulbankians presentation of the plan that may have indeed been the solution for everyone concerned. That alone is suspicious. What would have been the harm of listening to the presentation? Don’t think I have ever seen a town counsel prevent a resident from speaking at a town meeting. You pay taxes to the town but you are not allowed to speak or make a presentation to the town in any effort to resolve an issue?

Then as he is leaving Mr. Cipriano says , “my door is always open to listen”.
Why not then at the public meeting? No, that would be in front of the citizens and they would be able to see who indeed is being difficult in this ongoing tale. ..

To say that the Gulbankians just kept on working and ignored the towns order is silly. If they cant afford it, how can they satisfy the demand?

. They kept on working , BECAUSE THEY HAVE TO EAT AND FEED THEIR FAMILIES.

30 Tim Martel August 17, 2013 at 8:44 AM

Roy, I understand the need to make a living, which is why I have repeatedly suggested and offered to help the family pursue a warrant article. But you cannot expect me to believe that defying a cease and desist order from Worcester Superior Court will lead to anything positive (particularly since the family dropped their appeal against that court decision).

In regards to your claim that the family was not allowed to present a plan…I did some searching. At the bottom of the articles on MySouthborough, there are tags – the Gulbankian articles are tagged “Gulbankian zoning”. Click that tag, and you will be presented with a list of Gulbankian articles from this case. It gives a lot of information going back to 2010 in reverse chronological order.

For example, I assume that your comment is in reference to the Sept 2010 meeting of the ZBA? According to this article (http://www.mysouthborough.com/2010/09/23/zoning-board-again-defers-decision-on-gulbankian-businesses/), it seems the family did present.

If you are referring to the Dec 2010 meeting with the Planning Board (http://www.mysouthborough.com/2010/12/21/planning-board-defers-decision-on-gulbankian-site-plan/), then again it seems the presentation was made.

If you are referring to another meeting, please point me in the right direction and I will investigate it.

31 Roy Palmer August 17, 2013 at 11:55 AM

Tim,

No ,I am referring to what happened at last weeks meeting. What I described happened at the last meeting.

32 Tim Martel August 17, 2013 at 3:59 PM

Thanks, Roy. I couldn’t attend that meeting, but I wish I had.

Does anyone know where the Planning Board posts their meeting minutes?

33 Frank Crowell August 17, 2013 at 4:40 PM

From 2010

” “We want to make sure we do it right. I think we’re close,” board member Matt Hurley said.

At a meeting in August, the ZBA asked the Gulbankian family to put together a plan to address the concerns neighbors have around noise, lighting, drainage, and screening. The family reviewed that plan with the board at last night’s meeting. Some of the proposed solutions included paving a portion of the parking lot and removing unnecessary flood lights.” ”

From this point on, never was the right thing done………..in my opinion of course.

34 Bonnie Phaneuf August 17, 2013 at 7:56 PM

Tim,
The Administrative Assistant to the Planning Board would have all agenda items and the approved minutes of the Planning Board. 508-485-0710 Ext 3027.

35 Tim Martel August 20, 2013 at 2:37 PM

Thanks, Bonnie. I called and it seems that the Planning Board minutes are delayed, and that the only available ones are from prior to May of this year.

36 Greg K August 18, 2013 at 9:31 AM

Yes, I agree that is seems very strange, unfair and uncooperative that Mr. Cipriano would not let the Gulbankians present their plan at the last meeting. Its almost like he feared that those attending could very well feel it was a reasonable solution.

They should have been allowed to show fellow citizens of Southboro their plan and willingness to resolve the matter.
Considering Mr. Cipriano knows all too well the high expense of having plans drawn up by architects, this seems like an especially hard line and nearly cruel position to take against the Gulbankians.

Hardly a democratic process and more like an dictatorial government or regime.

37 Carrie August 20, 2013 at 6:46 PM

this entire mess is a shame. for shame. and those that could have made it easier should be ashamed. My daughter is in the same grade as one of the grandchildren, or perhaps he is a great grandchild and I feel ashamed that the town is doing this to his family. A family that is always willing to donate flowers to any of the schools for any of the celebrations. Let that sink in. We are a community. My children are part of the fiber of the town, ****not the politics****
The curtain has been drawn back and to see the ugliness is just disgusting.

make it right.

38 Bupters August 22, 2013 at 11:47 AM

Couldn’t agree more, Carrie.

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