Plaintiff Boston Outdoor Ventures, LLC, filed its unverified Complaint (08 MISC 386457) on October 24, 2008, pursuant to G. L. c. 40A, § 17, appealing a decision (ZBA Decision 3) of Defendant City of Quincy Zoning Board of Appeals (the ZBA) which denied Plaintiffs appeal of a decision (ISD Decision 1) of Defendant Jay Duca, Director of Inspectional Services of the City of Quincy (Building Inspector) authorizing a cease and desist order relative to an off-site sign (the Sign) owned by Plaintiff. On the same day, Plaintiff filed its unverified Complaint (08 MISC 386458), also pursuant to G. L. c. 40A, § 17, appealing a decision (ZBA Decision 4) of the ZBA which upheld Defendant Maloney Capital Company, LLCs (Maloney) appeal of ISD Decision 1. A case management conference was held on these two cases on December 8, 2008, and the two cases were consolidated.
On February 13, 2009, Plaintiff filed its unverified Complaint (09 MISC 393468), pursuant to G. L. c. 40A, §17, appealing a decision of the ZBA (ZBA Decision 5) which denied Plaintiffs appeal of a second cease and desist order of the Building Inspector (ISD Decision 2) relative to the Sign. At a status conference on May 19, 2009, this case was consolidated with the two earlier cases.
On April 16, 2010, Plaintiff filed its Motion for Summary Judgment, together with supporting memorandum, Statement of Undisputed Facts, and Appendix containing Affidavits of Jonathan Serra (principal of Plaintiff) and Kathryn Georgian (paralegal). Maloney filed its Cross-Motion for Summary Judgment on May 21, 2010, together with supporting memorandum, Statement of Additional Material Facts, and Appendix containing Affidavits of Robert E. Hannigan (civil engineer), Thomas M. Maloney, Jr. (principal of Maloney), and Webster A. Collins (real estate appraiser), and depositions transcripts of Joseph J. Duca, Thomas M. Maloney, Jr. and Michael F. Hanley (attorney for the ZBA). On May 24, 2010, the ZBA and the Building Inspector filed their Cross-Motion for Partial Summary Judgment, together with supporting memorandum. Plaintiff filed its Reply on June 15, 2010, together with Supplemental Affidavit of Kathryn A. Georgian and Motion to Strike the Affidavit of Webster A. Collins. On July 12, 2010, Maloney filed its opposition to Plaintiffs Motion to Strike, together with Supplemental Affidavit of Webster A. Collins. A hearing was held on all motions on July 12, 2010, and the matter was taken under advisement. A decision of todays date has been issued.
In accordance with that Decision, it is:
ORDERED and ADJUDGED that the affidavit of Webster A. Collins shall not be struck, but this court shall give the affidavit such weight as it deems appropriate.
ORDERED and ADJUDGED that Plaintiffs substantive due process rights were not violated by the City of Quincys actions.
ORDERED and ADJUDGED that Maloney has standing to appeal ISD Decision 1 to the ZBA pursuant to G.L. c. 40A, §8.
ORDERED and ADJUDGED that G.L. c. 40A, § 7 applies to the challenge to the Building Permit dated February 5, 2008, and as a result Maloney has filed a timely appeal on June 17, 2008.
ORDERED and ADJUDGED that ZBA Decision 3 exceeded the scope of authority of the ZBA.
ORDERED and ADJUDGED that ZBA Decision 4 exceeded the scope of authority of the ZBA.
ORDERED and ADJUDGED that ZBA Decision 5 exceeded the scope of authority of the ZBA.
ORDERED and ADJUDGED that the Sign must be made to conform to the Proposed Site Plan prepared by Green Environmental, Inc. dated January 3, 2007, or Plaintiff must seek a modification of Variance 2 from the ZBA.
ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment is ALLOWED pertaining to the fact that ZBA Decisions 3, 4, and 5 exceed the authority of the ZBA, and DENIED as to its due process claim, Maloneys lack of standing, and Maloneys untimely appeal.
ORDERED and ADJUDGED that Maloneys Cross-Motion for Summary Judgment and the ZBA and Building Inspectors Cross-Motion for Partial Summary Judgment is DENIED as to the validity of ZBA Decisions 3, 4 and 5, and ALLOWED as to Plaintiffs due process claim, Maloneys standing, and Maloneys timely appeal.
By the court. (Sands, J.)