Plaintiffs, Daniel D. Silva and Susan P. Silva (the Silvas), commenced this case on October 3, 2007, as an appeal, pursuant to G.L. c. 40A, § 17, from the Town of Plymouth Zoning Board of Appealss (ZBA) second denial, on September 20, 2007, of a special permit to waive setback requirements for the construction of a deck on the Silvas property located at 187 Taylor Avenue in Plymouth. This case follows a Remand Order issued on July 31, 2007, after the Court granted summary judgment in favor of the plaintiffs. The Silvas assert that Defendants failed to address the substantially more detrimental standard mandated by the Court in its Remand Order. Defendants insist that the ZBAs decision to deny Plaintiffs application for a special permit was neither arbitrary nor capricious and that the board specifically found that the deck would be substantially more detrimental to the neighborhood than the pre-existing, nonconforming structure.
On April 1, 2009, Plaintiffs filed a motion for summary judgment. The accompanying memorandum in support of their motion was filed on April 7, 2009. Defendants filed an opposition to Plaintiffs motion for summary judgment and a memorandum in support of their opposition on May 12, 2009. A summary judgment hearing was held on June 2, 2009. Plaintiffs motion for summary judgment was argued and taken under advisement.
After careful consideration of all of the evidence, the Court entered a Decision today, ruling that the ZBAs second denial of Plaintiffs special permit application on September 20, 2007, was arbitrary and capricious and in excess of the Boards authority. The Plaintiffs Motion for summary judgment is hereby ALLOWED.
In accordance with that Decision, it is hereby:
ORDERED that the September 20, 2007 decision of the ZBA is ANNULLED. The Court remands this matter to Plymouth Zoning Board of Appeals with instructions to grant the Plaintiffs application for a special permit waiving front and side setback requirements pursuant to Bylaw, § 205-43, without conditions.
The Board may proceed without giving further public notice; but the action must be taken at a regular open meeting. It is further
ORDERED that the Board must issue and record this supplemental decision with the Town Clerk no later than August 28, 2009, and file same with the Court without delay thereafter. It is further
ORDERED that this Court will retain jurisdiction over this case including, but not limited to, any appeals which may be taken (or other actions brought) from or relating to the commissions further proceedings pursuant to this Order.
By the Court (Trombly, J.).
[Note 1] If not specifically defined herein, each term carries the same definition employed in the Decision.