This action is an appeal under G. L. c. 40A, §17 by plaintiff Ann B. Dalbec, Trustee of the Ann B. Dalbec Qualified Personal Residence Trust, from the written decision (Decision) of the Town of Westport Zoning Board of Appeals (Board), whose members are defendants. The Boards decision, filed with the Town Clerk of the Town on July 6, 2004, upholds the denial by the Westport Building Inspector of the plaintiff's application for building permits to construct one single family home on each of two parcels of land shown on a 1956 recorded plan, and identified on that plan as Lots 5 and 6. The plan (Plan) is entitled Plan of Land at Acoaxet, Westport, Mass., Belonging to Frank A. DuVally, Jr. and Norma B. DuVally, is dated March 22, 1956 and is recorded with the Bristol County (Southern District) Registry of Deeds (Registry) on August 23, 1956 at Plan Book 53, Page 27. In this action, plaintiff also seeks declaration pursuant to the provisions of G.L. c. 240, §14A.
This action came on to be heard by the court (Piper, J.) on cross-motions for summary judgment. In a decision of even date, the court has allowed the plaintiffs motion for summary judgment and denied the defendants cross-motion for summary judgment.
In accordance with the courts decision issued today, it is
ORDERED and ADJUDGED that the Decision proceeds on legally untenable grounds and is ANNULLED. The Board promptly is to issue a Decision directing the Building Inspector of the Town that building permits for one single family residential structure on each of Lot 5 and Lot 6 on the Plan may not be denied on grounds that those Lots lack sufficient area or frontage under the applicable provisions of the Town of Westport Zoning By-Laws. It is further
ORDERED, ADJUDGED and DECLARED that Lot 5 and Lot 6 on the Plan may not be denied building permits for one single family residential structure to be constructed on each Lot on grounds that those Lots lack sufficient area or frontage under the applicable provisions of the Town of Westport Zoning By-Laws.
By the Court. (Piper, J).
ANN B. DALBEC, as TRUSTEE of the ANN B. DALBEC QUALIFIED PERSONAL RESIDENCE TRUST v. CLAYTON M. HARRISON, GERALD COUTINHO, MARGOT DESJARDINS, CHRISTOPHER GRAHAM, and DONNA LAMBERT, as they are members of the TOWN OF WESTPORT ZONING BOARD OF APPEALS; and TOWN OF WESTPORT