Home RICHARD P. DESANTIS and DIANE L. DESANTIS vs. LYNN MURPHY, STEPHEN BRICKETT, NICHOLAS YEBBA, ANNE COTE, BARABRA PISELLI, JAMES E. FOX and CRAIG HARTWELL, members of the TOWN OF MIDDLETON ZONING BOARD OF APPEALS

MISC 08-385115

July 28, 2010

Sands, J.

JUDGMENT

Plaintiffs filed their unverified complaint on September 29, 2008, appealing, pursuant to the provisions of G. L. c. 40A, § 17, Defendant Town of Middleton (the “Town”) Zoning Board of Appeals’ (the “ZBA”) decision which upheld the Town Building Commissioner’s (the “Building Commissioner”) denial of a building permit pertaining to property located at 58 South Main Street, Middleton, Massachusetts (“Locus”). [Note 1] A case management conference was held on December 1, 2008, and this court issued a Remand Order on February 19, 2009. [Note 2]

Plaintiffs filed their Motion for Summary Judgment on December 15, 2009, together with supporting memorandum. The ZBA filed its Opposition and Cross-Motion on February 10, 2010, together with supporting memorandum. Plaintiffs filed their reply on February 23, 2010. A hearing was held on both motions on May 10, 2010, at which time the motions were taken under advisement. A decision of today’s date has been issued.

In accordance with that decision it is:

ORDERED and ADJUDGED that the decision of the ZBA dated November 13, 2009, upholding the Building Commissioner’s denial of Plaintiffs’ application for a building permit is valid and is not arbitrary, capricious or unreasonable, or in excess of the ZBA’s authority.

ORDERED and ADJUDGED that Plaintiffs’ Motion for Summary Judgment is DENIED and the ZBA’s Cross-Motion for Summary Judgment is ALLOWED.

By the court. (Sands, J.)

FOOTNOTES

[Note 1] Plaintiffs filed their Amended Complaint on January 20, 2009, adding additional facts in support of their challenge to the ZBA’s decision upholding the denial of Plaintiffs’ building permit.

[Note 2] This court issued an Amended Remand Order on May 4, 2009, in response to which the ZBA issued its remand decision on November 13, 2009, again upholding the Building Commissioner’s denial of the building permit. The remand decision is the basis for the summary judgment hearing.