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Date Posted: 22:05:49 01/17/08 Thu
Author: JMR (Lawbreakers!)
Subject: Landlords seek restraining order against town

Landlords seek restraining order against town


By Danielle Ameden/Daily News staff
GHS
Fri Jan 18, 2008, 12:56 AM EST
A Worcester Superior Court judge is scheduled to hear arguments Jan. 28 from the town counsel and a lawyer representing 16 local landlords seeking a restraining order against the town.

Attorney Matthew J. Dunn will speak for the landlords, asking for a preliminary injunction to stop Milford from carrying on with Article 37 of the town bylaws, which governs the town's pilot housing inspection program.

Hoping for the temporary relief, Dunn will later argue for the court to overturn the article. A lawsuit he filed for his clients earlier this month charges the bylaw, which has been approved by the state attorney general's office, is "unconstitutional, invalid and unenforceable."

"Whatever it is, we'll deal with it," Town Counsel Gerald Moody said.

Moody today will mail an official answer to the lawsuit, a class action complaint championed by Portuguese Cultural Alliance president Maria Valenca.

"The issues are now joined and we'll get a judicial determination," Moody said, describing the standard step as the start to the legal fight.

Town officials received the lawsuit right after New Year's.

The lawsuit, a civil complaint, lists allegations, facts and four charges against three defendants - the town of Milford, Public Health Director Paul Mazzuchelli and RMX Northeast Inc., the Milford company hired last year to measure the town's 4,000 rental units.

It includes a request for full refunds plus interest to be given to any landlord who has paid for the required rental unit inspections.

"The plaintiffs have failed to state a cause of action against the defendants upon which relief may be granted," Moody wrote in his response.

Moody said he's working on compiling documents so the court can issue a summary judgment, avoiding trial by issuing an early ruling.

"You've got to put together a lot of stuff - a lot of paperwork, a lot of documents," Moody said.

Special Town Meeting in October 2005 overwhelmingly approved Article 37, a tool to combat overcrowding that requires measurements to be taken in all the town's rental housing units so occupancy limits can be set. The occupancy limits are based on state building codes for how many people should live in a certain amount of space. Landlords pay $50 for occupancy certificates the first time each unit is measured.

At special Town Meeting this October, voters overwhelmingly defeated a landlord-sponsored article asking for the bylaw's repeal.

"Right now, it's just a question of whether this thing is going to continue to be enforced," Dunn said yesterday.

Dunn, who practices at Boston's Dunn Law Group, which specializes in residential and commercial real estate disputes, declined further comment until the hearing for the retraining order.

The lawsuit makes the following charges:

U Count I: Article 37 violates plaintiffs' and other similarly situated rental owners' equal protection guarantees

U Count II: The fees imposed by Article 37 constitute an illegal tax

UCount III: Article 37 violates landlords' Fourth Amendment rights regarding unreasonable search and seizure

UCount IV: Article 37 violates landlords' due process rights

Bringing the suit are Valenca and a number of other local landlords - Nascimento Mendes, Victor Cardoso, Custodia Carvalho, Eliseu Monteiro, Christina Pau-Preto, Antonio Gomes, Frank Alves, Rosa E. Soares, Alcinda Ferreira, Camilo Pires, Amilcar Videira, Antonio Monteiro, Maria Mendes, Hermenzindo Gonclaves, and Avelino Carolino suing "on behalf of themselves and all others similarly situated."

Danielle Ameden can be reached at 508-634-7521 or dameden@cnc.com.

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