Plaintiff filed her unverified Complaint on August 17, 2007, pursuant to G. L. 40A, § 17, appealing a decision of Defendant Dover Board of Appeals which upheld the Town of Dover Building Inspectors (the Building Inspector) denial of Plaintiffs right to connect a septic system to a converted structure on property owned by Plaintiff and located at 36 Pegan Lane, Dover, Massachusetts (Locus). [Note 1], [Note 2] A case management conference was held on September 26, 2007. Defendant filed its Motion for Summary Judgment on February 2, 2009, together with supporting memorandum, Statement of Material Facts, Appendix, and Affidavits of Laverne Lovell, Susan Hall, and Anthony Calo. On March 16, 2009, Plaintiff filed her Opposition, together with Statement of Additional Material Facts, Appendix, and Affidavit of Walter G. Thompson (the Thompson Affidavit). Defendant filed its Reply on March 26, 2009, and Plaintiff filed her Limited Response on April 16, 2009, together with Affidavit of Kathleen E. Connolly. A hearing was held on the summary judgment motion on April 27, 2009, at which time the motion was taken under advisement. A decision of todays date (the Decision) has been issued.
In accordance with that decision it is:
ORDERED and ADJUDGED that the detached finished barn/garage (the Barn), as such structure was described in Plaintiffs application to the Building Inspector for a building permit, dated June 10, 2004, is not exempted from the Zoning Bylaws of the Town of Dover, pursuant to G. L. c. 40A, § 3, as a structure in use for the primary purpose of commercial agriculture. [Note 3]
ORDERED and ADJUDGED that Defendant had no jurisdiction to address the August 9, 2001, decision of the Town of Dover Planning Board (the Planning Board Decision), and such decision stands.
ORDERED and ADJUDGED that the second finding (Finding 2) and the fourth finding (Finding 4) of Defendants decision dated July 31, 2007 (the ZBA Decision) were reasonable and within the scope of Defendants authority, and, thus, the ZBA Decision is not unreasonable, arbitrary, or capricious. [Note 4]
ORDERED and ADJUDGED that Defendants Motion for Summary Judgment is ALLOWED.
By the court. (Sands, J.)
[Note 1] An Amended Complaint was filed on September 26, 2007, which made corrections to two paragraphs in the Complaint.
[Note 2] Plaintiff characterized the Building Inspectors denial as a denial of an occupancy permit for the structure.
[Note 3] For those reasons stated in the Decision, this court refrains from finding whether the Barn is exempted from the Bylaws, pursuant to Section 3, as an incidental use to a permissible activity.
[Note 4] Finding 2 stated: The Board also found that the newly constructed space was not used for the primary purpose of agriculture, but was intended and, if the relief requested were granted, would serve primarily a residential purpose.
Finding 4 stated:
The Board also found that it was without jurisdiction to release the applicant from the conditions in the Planning Board approval, and the covenant the Thompsons entered into with the Planning Board. Because it was without power to release the prohibition on a second dwelling unit on the locus, the Board could not allow the space to be occupied as a dwelling unit in violation of the covenant and the Planning Boards decision.