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I <br /> Mai 18 U4 UU: Usp p' 3 <br /> E On August 11,2003,plaintiff submitted the amended complaint containingtwa counts: <br /> Count I brought under G. L. c. 40A, § 17, and Count II based upon G. L. c. 240, § 14A. Ellis <br />` answered the amended complaint on August 14,2003. The ZBA and the Town joined in filing an <br /> answer on September 4, 2003.' <br /> t! A trial was held in Boston on November 24, 2003. A court reporter was sworn and <br />{' transcribed the proceedings. Ellis called 'the following witnesses to testify: F. Thomas Anthony <br />( Fudala,Mashpee Town Planner;John L. Druley,a real estate developer;Jane Joy,a real estate agent; <br /> Paul F.Banks(Banks),a contractor;and Fawn Lembert,a second real estate agent. Larsen,Mitchell, <br /> and Shaw testified and called as a witness Barbara Aittaniemi (Aittaniemi),areal estate broker. The <br /> parties introduced into evidence fifty-three exhibits,some including multiple parts:' Those exhibits <br /> are hereby incorporated into this decision for the purpose of any appeal. <br /> On the day of trial, plaintiffs and Ellis submitted a revised pre-trial memorandum <br /> (revised memorandum)and Stipulation of the Parties(stipulation). Where deemed appropriate, the <br /> findings of facts below incorporate agreed facts included in the revised memorandum or the <br /> stipulation. <br /> At trial,this court allowed plaintiffs'Motion for View filed that day_ In the presence <br /> of counsel, this court took a view of the properties at issue on March 25,2004. <br /> This court finds the following facts: <br /> Carter neither filed an appearance nor participated in anyaspect of the proceedings. After. <br /> the filing of their answer, neither the ZBA nor the Town took any active role in the litigation. <br /> 'Although the exhibits are numbered 1 through 55, the record does not include any exhibit <br /> 7 or S. <br /> 'Ellis and plaintiffs submitted an initial pre.-trial memorandum on June 20,2003, <br /> 2' <br />