In this case, Plaintiffs challenged a decision of the Beverly Board of Appeals (Board), in which it upheld an action of the Building Commissioner (Commissioner). The dispute began when Plaintiff Michael Harrington requested that the Commissioner enforce a provision of the Beverly Zoning Ordinance against Rachel M. Thompson, the owner of property at 18 Bay View Avenue (Thompson Property). In his request to the Commissioner, Mr. Harrington alleged that the Thompson Property was in violation of a front yard setback requirement of the Ordinance. The Commissioner refused to enforce the request and Mr. Harrington brought an appeal to the Board.
Cross-motions for summary judgment were heard by this court on September 30, 2009, with further briefing following hearing. A decision of todays date has issued, granting summary judgment in favor of Defendants who sought dismissal of this action for lack of jurisdiction. In accordance with that decision, it is hereby
ADJUDGED and ORDERED that Michael Harrington, the sole appellant before the Board, did not have standing to appeal the Building Commissioners action; it is further
ADJUDGED and ORDERED that the Board did not have the authority to consider the appeal. As a consequence, the Boards decision is void ab initio; and it is further
ADJUDGED and ORDERED that the Complaint hereby is DISMISSED.
By the court (Scheier, C.J.)
Dated: February 12, 2010
DOROTHY HARRINGTON, MICHAEL HARRINGTON, THAD OUTERBRIDGE, RICHARD MALLEY, and KATHLEEN HARNEY v. DAY ANN KELLEY, SCOTT FERGUSON, MARGARET OBRIEN, JANE BRUSCA, JOEL MARGOLIS, SALLY KOEN, and PATRICIA GOUGIAN as they are members of the BEVERLY ZONING BOARD OF APPEALS, and RACHEL M. THOMPSON, and MICHAEL J. HUBBARD and ROBERT J. HUBBARD as they are the trustees of the ELMTOP REALTY TRUST