Plaintiff Linda Hamilton filed her unverified complaint on September 10, 2008, appealing, pursuant to the provisions of G. L. c. 40A, § 17, Defendant City of Brockton Zoning Board of Appeals (the ZBA) denial of a variance application pertaining to property located at 78 Manomet Street in Brockton, Massachusetts (Locus). [Note 2] A case management conference was held on November 24, 2008, where the parties discussed remanding the matter back to the ZBA and adding a count challenging an interpretation of the Ordinance. Thereafter, this court issued a Remand Order on December 3, 2008. On April 3, 2009, the ZBA filed an Answer to the Amended Complaint. [Note 3]
Plaintiff filed her Motion for Summary Judgment on December 1, 2009, together with supporting memorandum, Statement of Material Facts, and Affidavits of Linda Hamilton and John McCluskey, Esq. On April 6, 2010, Defendants filed an Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum and Statement of Undisputed Facts. A hearing was held on both motions on April 7, 2010, at which time both motions were taken under advisement. A decision of todays date has been issued.
In accordance with that decision it is:
ORDERED and ADJUDGED that Plaintiff has failed to satisfy her burden to prove the invalidity of Section 25-27(2) of the Ordinance as applied to Locus.
ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment is DENIED and Defendants Cross-Motion for Summary Judgment is ALLOWED.
By the court. (Sands, J.)
[Note 1] When Plaintiff filed her Amended Complaint adding a count pursuant to G. L. c. 240, § 14A, as discussed infra, she failed to add the City of Brockton (the City) as a Defendant as required by statute. This court initiated a conference call to the parties on April 7, 2010, at which time Plaintiff agreed to orally amend her Complaint to add the City as a Defendant, and the City agreed to accept service in that regard. As a result, the City and the ZBA are both named Defendants in the case at bar.
[Note 2] Plaintiff filed an Amended Complaint on December 2, 2008, adding a count pursuant to G. L. c. 240, § 14A, which challenged the Citys interpretation of a section of the City of Brockton Ordinance (the Ordinance). Plaintiff filed a Second Amended Complaint on March 20, 2009, adding a count pursuant to G. L. c. 40A, § 17, to appeal a remand decision of the ZBA relative to a denial of a second variance application.
In their summary judgment memoranda, neither Plaintiff nor Defendants address the merits of the variances that were denied by the ZBAs decisions dated August 12, 2008 (ZBA Decision 1) and January 13, 2009 (ZBA Decision 2). At the summary judgment oral argument, Plaintiff conceded that she did not have a compelling legal argument justifying the variances and, as such, agreed to withdraw the counts of her Complaint relative to ZBA Decision 1 and ZBA Decision 2.
[Note 3] The Answer was executed by Philip C. Nessrella, Jr., Assistant City Solicitor for the City of Brockton.