FRANK D. VALENTINO and MICHAEL D. VALENTINO v. CITY OF WALTHAM, BARBARA RANDO, BRUCE MORRIS, EDWARD T. MCCARTHY, MARK A. HICKERNELL, MARK S. RUDNICK, MICHAEL J. COTTON, JOHN SERGI, OSCAR L. LEBLANC, GLENNA GELINEU, and MICHAEL R SQUILLANTEAS, as they are members of the CITY OF WALTHAM ZONING BOARD OF APPEALS

This case came before the Court on the parties’ cross-motions for summary judgment. The underlying action in this case is an appeal, pursuant to G.L. c. 40A, § 17, from the decision of the City of Waltham Zoning Board of Appeals (ZBA) denying the Plaintiffs’ petition for a special permit to construct an addition, pursuant to G.L. c. 40A, § 6. The Plaintiffs, through their motion, sought to have the Court declare that the ZBA has jurisdiction to hear this case and to remand it to the ZBA to make the remaining factual determinations. The Defendants, the City of Waltham (City) and the ZBA, through their cross-motion for summary judgment, sought to have the Court affirm that the ZBA does not have jurisdiction for all of the reasons set forth in its decision.

The Plaintiffs filed the Complaint in this case on March 24, 2008 and filed Plaintiffs’ Motion for Summary Judgment and Remand Order, Memorandum of Law in Support of Plaintiffs’ Motion for Summary Judgment, Plaintiffs’ Statement of Uncontested Facts, and affidavits in support of their motion on July 31, 2009. Defendants filed an opposition to the Plaintiff’s motion and to the statement of uncontested facts and filed their own statement of uncontested facts and cross-motion for summary judgment on September 25, 2009. Plaintiffs filed a Reply Memorandum of Law in Support of Plaintiffs’ Motion for Summary Judgment on October 30, 2009. A summary judgment hearing was held before the Court on December 29, 2009, and the arguments were taken under advisement. On January 11, 2010, the Defendants filed Defendants’ Opposition to Plaintiffs’ Reply Memorandum and Oral Argument. The Court allowed the Plaintiffs an opportunity to respond by January 19, 2010. No response was received.

After careful consideration of all of the evidence, the Court issued a Decision today, ruling that, while the ZBA does have jurisdiction to hear this case, the denial of the petition was proper because the City’s Zoning Code does not allow for expansion of a nonconforming structure by more than ten percent of the ground floor area of the existing structure through a special permit granted by the ZBA. There was no dispute that the square footage of the addition to 753-755 South Street was greater than ten percent of the ground floor area of the existing structure. Therefore, the Plaintiffs could not prove an essential element of their case and were not entitled to a special permit from the ZBA for the addition.

In accordance with that Decision, it is hereby:

ADJUDGED and ORDERED that Defendants’ Cross-Motion for Summary Judgment is ALLOWED; and it is further

ADJUDGED and ORDERED that the decision of the City of Waltham Zoning Board of Appeals is AFFIRMED.

By the Court (Trombly, J.).