MARK A. ELBAG v. PETER VAN DYKE, CHRIS SENECAL, AND RICHARD SURRETTE, as members of THE ZONING BOARD OF APPEALS OF THE TOWN OF RUTLAND

This action was commenced by plaintiff, Mark A. Elbag on October 19, 2007, as an appeal, pursuant to G.L. c. 40A, § 17, seeking to annul a decision of defendant, the Zoning Board of Appeals of the Town of Rutland. [Note 2] That decision upheld a decision of the Inspector of Buildings of the Town of Rutland denying the plaintiff’s application for a building permit relative to a parcel of real property, known as and numbered 17 Demon Pond ROW in Rutland, owned of record by plaintiff.

On July 28, 2008, plaintiff filed a motion for summary judgment. Defendants opposed the motion on October 22, 2008. On October, 29, 2008, plaintiff filed a reply brief in support of his motion. The motion was argued the same day before the Court, and taken under advisement.

After careful consideration of all of the evidence, the Court entered a Decision today, ruling that the constructive approval of the plaintiff’s application and plan did not determine that the lots contained in the plan met the frontage requirements of the Zoning Bylaws.

In accordance with that Decision, it is hereby

ADJUDGED and ORDERED that the plaintiff, Mark A. Elbag’s motion for summary judgment is DENIED;

ADJUDGED and ORDERED that summary judgment is GRANTED to defendant, the Zoning Board of Appeals of the Town of Rutland;

ADJUDGED and ORDERED that the constructive approval of the plaintiff’s application and plan, by the Planning Board of the Town of Rutland did not determine that the lots contained in the plan met the frontage requirements of the Zoning Bylaws of the Town of Rutland;

ADJUDGED and ORDERED that the property does not meet the frontage requirement of § 5 of the Zoning Bylaw and § 1.A. of the Subdivision Regulations for the Town of Rutland, Massachusetts;

ADJUDGED and ORDERED that the decision of defendant, upholding the decision of the Inspector of Buildings of the Town of Rutland, denying the plaintiff’s application for a building permit is AFFIRMED; and it is further

ADJUDGED and ORDERED that the complaint be, and is hereby DISMISSED.

By the Court (Trombly, J.).