JUSTIN E. GALE, HENRY WARE GALE, PETER PEABODY GALE, BENJAMIN WINSOR GALE and EMILY ANNE GALE v. JAMES P. MOVALLI, DAVID B. GARDNER, STEPHAN C. REYNOLDS, and ROBERT C. STEWART, as they are Members of the CITY OF GLOUCESTER ZONING BOARD OF APPEALS and GEORGE B. FOOTE, JR., Trustee under the 1988 REVOCABLE TRUST INDENTURE OF ANNA PUTNAM FOOTE u/d/t dated October 27, 1988

The action was commenced on December 30, 2008 by the Plaintiffs, appealing the decision of the City of Gloucester Zoning Board of Appeals (“ZBA”), pursuant to G.L. c. 40A § 17, granting a special permit and variance, allowing the applicant/defendant, George B. Foote, Jr., Trustee, to demolish and reconstruct a structure on property located at 19 Squam Rock Road, Gloucester (“The Premises”).

On September 30, 2009, Plaintiffs’ moved for Summary Judgment and filed a supporting memorandum and exhibits. Defendants’ Opposition to Summary Judgment was filed on November 24, 2009, and Plaintiffs’ Reply was filed on December 29, 2009. On January 5, 2010, a Summary Judgment Hearing was held and the matter was taken under advisement; also on that date, Defendant’s Motion to Strike Computer Modeling Images and Motion to Strike Plaintiffs’ Supplemental Answers to Interrogatories were argued and taken under advisement.

A Decision was entered today finding and ruling that, as a matter of law, the Plaintiffs have standing to appeal the decision of the ZBA under G.L. c. 40A § 17; however, the court further ruled that the Applicant did not need a variance, needing only a special permit and a finding, and that the ZBA did not err in granting a special permit and a variance to the Applicant, insufficient evidence having been submitted to show that the ZBA’s decision was made on a legally untenable ground. In short, the ZBA was justified in granting the special permit and variance to the Applicant. There remain no issues of material fact that must be decided at trial; therefore, summary judgment is hereby granted to Defendants.

In accordance with that Decision, it is hereby

ADJUDGED and ORDERED that the plaintiffs’ Motion for Summary Judgment is DENIED;

ADJUDGED and ORDERED that Summary Judgment is GRANTED to the defendants;

ADJUDGED and ORDERED that the Decision of the Gloucester Zoning Board of Appeals, dated December 12, 2008, granting a special permit and variance to the Applicant, was within its authority, was not arbitrary or capricious, and is hereby AFFIRMED.

By the Court (Trombly, J.)