Plaintiff Pauline Hardy (Hardy) filed her unverified Complaint on April 29, 2009, appealing, pursuant to G. L. c. 40A, §17, a decision (ZBA Decision 4) of Defendant Yarmouth Zoning Board of Appeals (the ZBA) which upheld a decision of the Yarmouth Building Inspector (the Building Inspector) to issue a building permit to Charles H. Sullivan and Penny A. Sullivan (the Sullivans) (with the ZBA, Defendants) to construct an eight unit cottage colony on property located at 330 Main Street (Route 6A), Yarmouth Port, MA (Locus). [Note 1] On July 2, 2009, the Sullivans filed a Motion to Intervene. A case management conference was held on July 10, 2009, at which time the Motion to Intervene was allowed. On the same day, the Sullivans filed a Motion to Dismiss, which by agreement of the parties was put on hold. A pre-trial conference was held on April 1, 2010. A site view and the trial at Barnstable District Court were held on July 22, 2010. At the trial the Sullivans filed a Motion in Limine to Bifurcate the Issues of Standing from that of the Merits of the Boards Decision, which motion was denied by this court. At the completion of Plaintiffs case, the Sullivans filed an oral Motion to Dismiss, which was denied by this court. Defendants filed their Joint Report for Rulings of Law on August 23, 2010. Plaintiffs filed their Request for Finding of Fact on August 26, 2010, at which time the matter was taken under advisement. A Decision of todays date (the Decision) has been issued.
In accordance with the Decision it is:
ORDERED and ADJUDGED that Chalk A is not admitted into evidence.
ORDERED and ADJUDGED that Hardy does not have standing to challenge ZBA Decision 4.
ORDERED and ADJUDGED that Evans does not have standing to challenge ZBA Decision 4.
ORDERED and ADJUDGED that ZBA Decision 4 stands. [Note 2]
By the court. (Sands, J.)
[Note 1] Hardy filed an Amended Complaint on May 15, 2009, naming Kenneth M. Evans (Evans) (together with Hardy, Plaintiffs) as a Plaintiff.
[Note 2] It should be noted that even if Plaintiffs had standing, there is an issue as to whether they would prevail in overturning ZBA Decision 4. The construction of eight cottages was allowed in 1972, and there is no evidence that the owners of Locus abandoned the use of Locus for such purposes. In 1972, there was no time frame for the exercise of a variance. When such change was made to the statute which became effective in Yarmouth in 1975, it is conflicting whether the change was made retroactive. See Hogan v. Hayes, 19 Mass. App. Ct. 399 , 403-404 (1985) (discussing factors relevant to the retroactivity issue). But more importantly, the terms of the 1972 Variance were incorporated into a court order (the 1972 Order). Moreover, Hardy approved the 1972 Order and is now seeking to rescind her approval of the 1972 Order and the Variance after already having endorsed them.