MATTHEW J. DUPUY, as Trustee of C.N. REALTY TRUST v. ERIC EHNSTROM, ELIZABETH HENSON, ALLEN KOLCHINSKY, GEORGE WAUGH, and WILLIAM PEIRSOL, as members of the TOWN OF ORLEANS ZONING BOARD OF APPEALS

Plaintiff, Matthew J. Dupuy, as Trustee of C.N. Realty Trust, commenced this case on January 4, 2006, as an appeal, pursuant to G.L. c. 40A, § 17, of a decision of the defendant, the Town of Orleans Zoning Board of Appeals, to uphold a ruling of the Building Commissioner, concerning the buildability of a parcel of real property, known as and numbered 69 Captain Linnell Road in Orleans, owned of record by plaintiff.

The property is a nonconforming lot in a subdivision created on February 19, 1974. The Town of Orleans Zoning Bylaws provides an exemption for lots in the zoning district in which the subdivision lies, which were in existence on or before August 2, 1973. Plaintiff contends that the existence of the lot relates back to the submission of the original preliminary subdivision plan on March 9, 1973. Defendants counter that the definition of lot in the Zoning Bylaw is clear and does not allow for such an interpretation.

On January 26, 2009, plaintiff filed a Motion for Summary Judgment. Defendant filed a Cross-Motion for Summary Judgment on February 20, 2009. The motions were argued before the Court on April 23, 2009, and taken under advisement.

After careful consideration of all of the evidence, the Court entered a Decision today, ruling that the ruling of the Town of Orleans Zoning Board of Appeals was proper.

In accordance with that Decision, it is hereby

ADJUDGED and ORDERED that the plaintiff’s Motion for Summary Judgment is DENIED;

ADJUDGED and ORDERED that the defendant’s Cross-Motion for Summary Judgment is ALLOWED;

ADJUDGED and ORDERED that the ruling of the Town of Orleans Zoning Board of Appeals is AFFIRMED; and it is further

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

By the Court (Trombly, J.)