WAYNE JOHNSON v. CARL KING, CHRISTOPHER CASEY, KAREN I. TENENBAUM, JOHN BENNING, WILLIAM MORIARTY, BARBARA SHEFETZ, ALAN LIPKIND, KENT HALLAWELL, and DAVID BENNETT, as Members of the TOWN OF MARBLEHEAD BOARD OF APPEALS

Plaintiff Wayne Johnson commenced this case on December 29, 2000, as an appeal, pursuant to G.L. c. 40A, § 17, of a decision of the Defendant the Town of Marblehead Board of Appeals, which denied the Plaintiff’s application for a special permit concerning the continued existence of a single-family dwelling on a parcel of real property, known as and numbered 72 Bubier Road in Marblehead, owned of record by Plaintiff (Property).

This case arises out of an enforcement action brought by John Schey and Ruth Schey, in Schey v. Board of Appeals of the Town of Marblehead, Land Court case number 95 MISC 221634, seeking to annul a decision of the Board of Appeals and have a building permit concerning 72 Bubier Road revoked and the house thereon removed. On May 10, 2000, the court (Kilborn, J.) ruled in favor of the Scheys, finding that the lot did not meet the lot width requirement of the Town of Marblehead Zoning Bylaw. The court ordered that the building permit be revoked but ruled that no order for the removal of the structure should issue before Plaintiff (Defendant in that case) had a reasonable opportunity to seek relief to bring the Property into compliance.

Subsequently, Plaintiff applied for a special permit from the Board of Appeals for the continued existence of his house on the nonconforming lot, and was denied. This appeal followed.

The facts of the present case are stipulated to, and so, the parties proceeded on a case stated basis. Oral arguments were held on June 15, 2009. No stenographer was present. The proceedings were recorded electronically by the Land Court’s digital audio recording system. On July 9, 2009, the court took a view of the Property in the presence of counsel. On August 10, 2009, Plaintiff and Defendant each filed a Post-Trial Memorandum. On August 12, 2009, without motion, the Scheys filed a Post-Trial Memorandum of Fact, Amicus Curiae.

After careful consideration of all of the evidence, the court issued a Decision today, ruling that the decision of the Town of Marblehead Board of Appeals was not arbitrary and capricious but proper and should be upheld.

In accordance with that Decision, it is hereby:

ADJUDGED and ORDERED that the decision of the Town of Marblehead Board of Appeals to deny the Plaintiff’s application for a special permit is AFFIRMED; and it is further

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

By the court (Trombly, J.).