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18. Additionally, the existing nonconforming dwelling has not been destroyed or damaged by <br /> fire, flood, lightning, wind or otherwise and the Gennacos are not entitled to relief under <br /> Section 174-20 of the Bylaws. <br /> 19. The decision of the Board of Appeals the Gennacos two Special Permits/Writing Findings is <br /> legally or is unreasonable, whimsical, capricious and arbitrary for the reasons set forth above. <br /> COUNT II <br /> (Declaratory Judgment under M.G.L. c. 231 A, §1) <br /> 20. Bacon hereby realleges the matters set forth in Paragraph Nos. 1-19 of the Complaint. <br /> 21. M.G.L. c. 231A, § 1, provides in part: <br /> The superior court . . . may on appropriate proceedings make binding declaration <br /> of right, duty, status and other legal relations sought thereby . . . in any case in <br /> which an actual controversy has arisen and as specifically set forth in the <br /> pleadings . . .. <br /> 22. There is an actual controversy between the parties as to their respective rights and <br /> duties. <br /> 23. Bacon seeks a declaration that: <br /> The decision of the Town of Mashpee Zoning Board of Appeals granting <br /> defendants Joseph P. Gennaco and Jean E. Gennaco two Special Permits/Written <br /> Findings pursuant to Sections 174-17 and 174-20 of the Town of Mashpee Zoning <br /> Bylaws for the reconstruction of a single-family dwelling at 46 Kim Path in <br /> Mashpee shall be annulled. <br /> 5 <br />