Plaintiff filed its unverified Complaint on December 8, 2008, appealing pursuant to G. L. c. 40A, § 17, a decision of Defendant Newburyport Zoning Board of Appeals (ZBA) (together with Defendant City of Newburyport (the City), Defendants) which upheld an opinion of the Newburyport Building Commissioner that property owned by Plaintiff and located at Lot 2, Jefferson Court, Newburyport (Locus) required a variance. [Note 1] A case management conference was held on February 11, 2009, where Defendants threatened to file a Motion to Dismiss the Complaint due to the timeliness of the appeal. [Note 2] At the request of the parties, a Remand Order was issued by this court on April 7, 2009, ordering the ZBA to consider whether Locus met the requirements of G. L. c. 40A, § 6, and, if so, whether Locus met the minimum lot width requirements of the Ordinance. By decision filed with the City Clerk on July 6, 2009, the ZBA found that Locus did not satisfy the requirements of G. L. c. 40A, § 6. At a August 25, 2009, status conference Plaintiff represented that it was not appealing the ZBAs remand decision, but wished to proceed on the issues raised in its original Complaint.
Plaintiff filed its Motion for Summary Judgment on September 18, 2009, together with supporting memorandum, Statement of Material Facts, and Affidavits of Kevin P. Geaney and James Scali. On October 26, 2009, Defendants filed their Response and Statement of Additional Material Facts, in addition to their Motion to Partially Strike Affidavit of Kevin P. Geaney and Motion to Strike Exhibit 1 of Affidavit. A hearing was held on all motions on December 21, 2009, at which time all motions were taken under advisement. [Note 3] A decision of todays date has been issued.
In accordance with that decision it is:
ORDERED and ADJUDGED that Defendants Motion to Partially Strike Affidavit of Kevin P. Geaney (paragraph 4) and Motion to Strike Exhibit 1 of Affidavit is ALLOWED.
ORDERED and ADJUDGED that, as applied to Locus, lot width minimum is not a dimensional requirement under the Ordinance.
ORDERED and ADJUDGED that Locus would meet the Ordinances definition of lot width minimum, even if such definition applied.
ORDERED and ADJUDGED that the decision of the ZBA on November 19, 2008 (the ZBA Decision), to uphold the opinion of the Newburyport Building Commissioner is legally untenable, arbitrary, and capricious.
ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment is ALLOWED.
By the court. (Sands, J.)
[Note 1] A First Amended Complaint was filed on March 4, 2009, adding three counts pursuant to G. L. c. 240, § 14A, challenging provisions of the Newburyport Zoning Ordinance (the Ordinance).
[Note 2] By letter dated February 26, 2009, Defendants indicated that it would not file the Motion to Dismiss.
[Note 3] A summary judgment hearing was initially scheduled for June 1, 2009, and then rescheduled for February 10, 2010. The hearing was ultimately held on December 21, 2009.