In this case, Plaintiffs challenge a decision of the Beverly Board of Appeals (Board), in which the Board upheld the Beverly Building Commissioners refusal to rescind a building permit issued to Defendant Elmtop Realty Trust (Trust). In his request to the Commissioner, Plaintiff Michael Harrington asserted that Defendants building permit should be rescinded because Defendants Property contains more than two acres and is subject to the Beverly Open Space Residential Design Ordinance (BOSRDO). The Commissioner refused to enforce the request and Mr. Harrington brought an appeal to the Board. The Board found that Mr. Harrington had standing appeal the Commissioners action and upheld it.
Plaintiffs commenced this action on August 28, 2009, pursuant to G. L. c. 40A, § 17, to appeal the Boards decision. Following the filing of cross-motions for summary judgment and a hearing, at which all parties were heard, this court issued a decision of todays date, annulling the Boards decision for the reason that Plaintiff Michael Harrington did not have standing to appeal to the Board, and the Board therefore did not have jurisdiction to hear his appeal. 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.)
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 MICHAEL J. HUBBARD and ROBERT J. HUBBARD as they are the trustees of the ELMTOP REALTY TRUST