Plaintiffs J Field Properties LLC (the LLC), and Jason and Jodi Field (the Fields) filed their unverified Complaint on December 18, 2008, appealing, pursuant to G. L. c. 40A, §17, a decision of Defendant Newburyport Zoning Board of Appeals (the ZBA) which denied special permits for the conversion and alteration of the premises at 42 Washington Street, Newburyport, Massachusetts (Locus). A case management conference was held on February 11, 2009. On February 3, 2009, counsel for the ZBA filed a Motion to Allow Withdrawal of Appearance, which this court denied. On the same day, Plaintiffs filed their Motion for Judgment on the Pleadings, together with supporting memorandum. The ZBA did not file a response. By letter signed by both parties, filed with this court on May 13, 2009, the ZBA stated that it will not be filing an opposition to Plaintiffs Motion for Judgment on the Pleadings and do[es] not intend to participate in any hearing on the Plaintiffs Motion. At the request of the parties, no hearing was held on the motion, and the matter was taken under advisement at that time.
Upon review of Plaintiffs Motion for Judgment on the Pleadings, this court concluded that a motion filed under Mass. R. Civ. P. 12(c) was inappropriate in the case at bar given the nature of Plaintiffs appeal. G. L. c. 40A, § 17 does not require an Answer and, thus, pursuant to Mass R. Civ. P. 7(a) and Mass. R. Civ. P. 8(d) this court takes the averments in Plaintiffs Complaint as denied. In deciding a motion for judgment on the pleadings, all factual allegations pleaded by the nonmoving party must be accepted as true, and contravening assertions by the moving party are to be taken as false. Flomenbaum v. Commonwealth, 451 Mass. 740 , 742 (2008). As a result, given the ZBAs automatic denial of the Complaint, this court was unable to act on Plaintiffs Motion for Judgment on the Pleadings. As such, a telephone conference call was held on December 11, 2009, at which time this court notified the parties of its intent to convert Plaintiffs Motion for Judgment on the Pleadings into a Motion for Summary Judgment. Consistent with Mass. R. Civ. P. 12(c), at such time this court provided the parties an opportunity to present all material made pertinent to such a motion by Rule 56. Defendants represented that they had no interest in amending the record and filed a letter memorializing their position on December 17, 2009. Plaintiffs filed the Affidavit of Jason Field on December 18, 2009. A decision of todays date has been issued.
In accordance with that decision it is:
ORDERED and ADJUDGED that the November 25, 2008, decision of the ZBA (ZBA Decision 1), in which the ZBA voted 3-2 in favor of Plaintiffs application under Section V-D of the City of Newburyport Zoning Ordinance (the Ordinance) for a special permit to convert the two-family residence to a three-family residence (the Conversion Special Permit) was arbitrary, capricious, and unreasonable. [Note 1]
ORDERED and ADJUDGED that the November 25, 2008, decision of the ZBA (ZBA Decision 2), in which the ZBA voted 3-2 in favor of Plaintiffs application under Section IX-B of the Ordinance for a special permit for the expansion of a pre-existing nonconforming structure (the Expansion Special Permit) was arbitrary, capricious, and unreasonable.
ORDERED and ADJUDGED that the Conversion Special Permit and the Extension Special Permit complied with the requirements of the Ordinance.
ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment is ALLOWED and this matter is remanded to the ZBA to issue the Conversion Special Permit and the Extension Special Permit in conformance with this decision
By the court. (Sands, J.)
[Note 1] The Ordinance and G. L. c. 40A, § 9, requires a supermajority vote to approve special permits; as a result, both applications for special permit were denied. Both decisions were filed with the Newburyport City Clerk on December 1, 2008.