Home NANCY E. THOMPSON vs. GARY P. LILIENTHAL, JAMES PARENT, TOBE DEUTSCHMANN, JEFFREY BARNES, LAVERNE LOVELL, as they constitute the BOARD OF APPEALS FOR THE TOWN OF DOVER

MISC 07-353414

June 22, 2010

Sands, J.

JUDGMENT

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 Inspector’s (the “Building Inspector”) denial of Plaintiff’s 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 today’s 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 Plaintiff’s 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 Defendant’s decision dated July 31, 2007 (the “ZBA Decision”) were reasonable and within the scope of Defendant’s authority, and, thus, the ZBA Decision is not unreasonable, arbitrary, or capricious. [Note 4]

ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is ALLOWED.

By the court. (Sands, J.)

FOOTNOTES

[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 Inspector’s 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 Board’s decision.