COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss.					SUPERIOR COURT DEPARTMENT
						CIVIL ACTION NO. 95-4563

FREDERICK AUFIERO, FREDERICK		)
BIRD, GORDON JAMESON, DONALD		)
KREBS, RICHARD MAZOW, HOWARD		)
RUBINSTEIN AND JOHN M. 			)
UPDEGRAPH, JR., AS TRUSTEES OF  	)
BEDFORDSHIRE CONDOMINUM TRUST,  	)
					)
		Plaintiff,		)
					)	ANSWER AND
V.				 	)	COUNTERCOMPLAINT
					)
BARRY KORT,				)
					)
		Defendant		)
					)

The Defendant, Barry Kort, answers and says:

  1. Over the past 18 months I have withheld approximately 15 percent from my monthly condominium fee in disputed common charges. For 9 months in 1993-94 I withheld $35 from the monthly fee of $233. For 9 months in 1994-95 I withheld $41 from the monthly fee of $249. I began withholding after the Trustees continued to ignore long-standing complaints that they had exceeded their authority in assessing common charges for purposes outside the scope of the condominium charter documents. This Countercomplaint sets forth the specifics of the disputed assessments.

  2. The Plaintiffs (and their predecessors on the Board of Trustees of Bedfordshire), over a period of approximately 6 years, have systematically caused, or permitted to be caused, certain alterations and improvements to the Common Area known as Parcel 'C' (Open Space) and to an adjoining Conservation Area (Parcel 'D') for the purpose of constructing a private Golf Course upon said Areas.

  3. The Bylaws of the Bedfordshire Condominium Trust provide that no such alterations (costing in excess of $2000) may be undertaken without approval of the Unit Owners by a vote of 50%.

  4. Massachusetts General Law Chapter 183A, Section 18, further provides: "If fifty percent or more but less than seventy-five percent of the unit owners agree to make an improvement to the common areas and facilities, the cost of such improvements shall be borne solely by the owners so agreeing."

  5. Substantially all of the alterations and improvements to Parcels 'C' and 'D' were carried out without benefit of the required vote of approval of the unit owners. At no time did the Trustees obtain the required seventy-five percent approval to assess all unit owners. Defendant alleges that the Trustees did knowingly and willfully deprive Unit Owners of their right of approval pursuant to the Bylaws and State Law.

  6. Article 6 of The Bylaws of Bedfordshire Condominium Trust explicitly limit the power of the Trustees to "arrange for the proper maintenance, repair, and replacement of the common areas and facilities as defined in the Master Deed."

  7. The Master Deed defines Parcel 'C' as Open Space to be "retained predominantly in its natural, scenic, and open condition." There is an associated Open Space Restriction on Parcel 'C' which further limits activities and usage of this Parcel.

  8. The Master Deed defines Parcel 'D' as an adjacent Conservation Area, to be "retained predominantly in its use for conservation or outdoor passive recreational purposes." Furthermore, Parcel 'D' is owned by the Town of Bedford, and is not owned by the Bedfordshire Condominium Trust.

  9. At no time did the Trustees move to amend the Master Deed to define and incorporate the Golf Course as a facility of Bedfordshire.

  10. At the time Bedfordshire was built, the Bedford Planning Board approved the construction of the condominiums with the provision that previously existing Golf Course would be "permanently discontinued" and converted to Open Space.

  11. At the August 16, 1994 meeting of the Bedford Planning Board, when the issue came up for discussion, Planning Board member Don Corey stated, "They can't put in a golf course." Planning Board member Mark Siegenthaler further stated, "If they want golf they need to come in for an amendment [to the Planned Residential Development]." The Minutes of the Planning Board Meeting indicate that this advice would be communicated to the Trustees of Bedfordshire.

  12. At no time did the Trustees apply to the Planning Board for an amendment to the Special Permit for a Planned Residential Development to construct a golf course upon Parcel 'C'.

  13. A portion of the golf course was constructed on Parcel 'D', which is an adjacent Conservation Area owned by the Town of Bedford and not owned by the Condominium Association. This Conservation Area is situated upon a Wetlands, protected by the Massachusetts Wetlands Protection Act and by Bedford Conservation Bylaws. At no time did the Trustees apply to the Bedford Conservation Commission for permission to alter publicly owned Wetlands for the construction of a private golf course. Defendant alleges that the Trustees did knowingly and willfully exceed their authority in assessing and expending Common Charges on lands not owned by the Association.

  14. The Trustees of Bedfordshire committed approximately $30,000 annually of fees collected through Common Charges for the maintenance and upkeep of the golf course upon Parcels 'C' and 'D'. In the most recent budget, the Treasurer segregated out the pro-rata cost of the golf course maintenance to each unit owner as a separately identified component. It is this segregated portion of the Common Charges, designated to fund the golf course, that the Defendant has declined to pay, based on the arguments presented herein.

  15. Plaintiff relies on MGL Chapter 183a, Section 6, holding unit owners liable for all sums lawfully assessed. Defendant alleges that the Trustees exceeded their lawfully constituted authority in assessing Common Charges for the golf course because the golf course was constructed without approval of the required seventy-five percent of the unit owners, without approval of the Bedford Planning Board, without approval of the Bedford Conservation Commission, and in part upon abutting public lands not owned by the Condominium Association.

  16. Defendant seeks to recover the excess and unlawful Common Charges levied to support the golf course over the life of the Association as well as reasonable costs of litigation. The amount of overcharges to be recovered are to be computed as a pro-rata portion of the annual budgets expended on the golf course as recorded in the Treasurer's Reports since the inception of the Association.

  17. Chapter 400 of Massachusetts General Law calls for the parties to "work proactively" to resolve disputed common charges before proceeding to formal legal process. The Trustees have steadfastly refused to address the substantive issues raised herein, have refused Defendant's request to engage a Mediator, and have refused Defendant's proposal to place the disputed common charges in an escrow account pending resolution. Instead, the Trustees have resorted to threats, intimidation, and legal harassment, all calculated to frighten Defendant into submission.

  18. In view of the circumstances, Defendant seeks to hold the Trustees personally and individually liable for Willful Breach of Trust, and hold harmless the Condominium Association for the damages sought herein.

  19. Defendant proposes to invite other aggrieved Unit Owners to join this Counterclaim and to convert it to a Class Action.

Wherefore, the Defendant prays that the Complaint of the Trustees be dismissed and that judgment be entered as follows:

  1. Judgment for the Defendant in an amount to be determined from inspection of the annual expenses for the golf course and interest thereon.

  2. Judgment for the Defendant for damages and expenses of litigation, to be assessed personally and individually against the Trustees bringing this suit.

  3. An Order compelling the Trustees of Bedfordshire to comply with the Bylaws of the Condominium Association and State Law requiring a vote of Unit Owners on alterations to the Common Areas.

  4. An Order compelling the Trustees of Bedfordshire to cease and desist from assessing Common Charges for activities on land not owned by the Association.

  5. An Order compelling the Trustees of Bedfordshire to comply with the requirements of the Bedford Planning Board and the Bedford Conservation Commission before undertaking alterations and improvements to Parcels 'C' and 'D'.

  6. Such further relief as this Honorable Court shall deem just.

    					Barry Kort
    					Pro Se
    
    					12 Mitchell Grant Way
    					Bedford MA 01730
    

    Dated: August 17, 1995


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