This action, which commenced September 5, 2008 with the filing of a complaint by Laurence Schiffenhaus, J. Anton Schiffenhaus, Alan Solomont, and Susan Lewis Solomont (collectively, Plaintiffs), is an appeal under G. L. c. 40A, §17, seeking judicial review of a decision (Decision) of the Zoning Board of Appeals (Board) of the Town of Truro, whose members are defendants, in which the Board upheld the decision of the Truro Building Commissioner to issue building permits to defendant Donald Kline [Note 1] (collectively with his trustee, Kline), for work on the property known as 25-27 Stephens Way in Truro, Barnstable County, Massachusetts (Kline Property). The Decision was filed with the Clerk of the Town of Truro on August 19, 2008.
This case came on for hearing on Klines motion for summary judgment. In a decision of even date, the court (Piper, J.) has determined that the Board proceeded on legally untenable grounds when it upheld the Building Commissioners issuance of the building permits.
In accordance with the courts decision issued today, it is
ORDERED that the Motion for Summary Judgment of the defendant Kline is DENIED, and that, pursuant to Mass. R. Civ. P. 56(c), Summary Judgment is GRANTED in favor of the Plaintiffs. It is further
ORDERED that the Defendants Motion to Strike Materials from the Record, and the Defendants Motion for Discovery Sanction, each filed on May 29, 2009, are DENIED. It is further
ORDERED and ADJUDGED that the Decision of the Truro Zoning Board of Appeals filed with the Town Clerk on August 19, 2008 proceeded on legally untenable grounds, and is ANNULLED. It is further
ORDERED and ADJUDGED that this case is REMANDED to the Truro Zoning Board of Appeals Board for the following purposes:
(1) for the Board to direct the Building Inspector that the building permits challenged in this action were issued by him in error, and that he must take appropriate action in light of that direction, and pending the further action of the Board required by this Judgment, and
(2) for the Board to consider, consistent with the courts decision, pursuant to Section 30.7 of the Truro Zoning Bylaw, whether the Kline Project is an alteration or extension [that] will not be substantially more detrimental to the neighborhood than the existing nonconforming use or structure and whether the alteration or extension will exist in harmony with the general purpose and intent of [the] bylaw. The Board is with reasonable promptness to hold a new open public hearing for the purpose of considering this question, which hearing is to be held only after full and proper notice of the hearing has been published, posted, and served in accordance with governing law, including G.L. c. 40A, § 11 and G.L. c. 39, § 23B; notice shall be served on all parties as legally required, including on the abutters and abutters to abutters to the site of the work as the statutes require. The Board shall conclude the hearing and its deliberations, and shall file its written decision as required by law, all again with reasonable promptness. It is further
ORDERED and ADJUDGED that any decision issued by the Truro Zoning Board of Appeals following further proceedings on remand pursuant to this Judgment shall be subject to the right of any party aggrieved by that decision to take from it an appeal, as provided by G. L. c. 40A, §17, by timely filing an action in this or any other court of competent jurisdiction.
By the Court. (Piper, J).
[Note 1] Donald Kline is the beneficial owner of the Kline Property. By deed dated May 14, 2007 and recorded with the Barnstable County Registry of Deeds at Book 22027, Page 001, title to the Kline Property stands in the name of the Stephens Way Nominee Trust, of which defendant Duane Landreth is trustee.