The Town of Belchertown ("Town"), acting by and through its Board of Selectmen and Zoning Enforcement Officer ("Enforcement Officer") filed this action May 20, 2010. The Town appeals pursuant to G. L. c. 40A, ยง17 from a decision ("Decision"), dated February 26, 2010, and filed with the Clerk of Belchertown on April 30, 2010, of the Belchertown Zoning Board of Appeals ("ZBA" or "Board"), whose members are defendants. In its Decision, the Board overturned a portion of a Cease and Desist Order ("Order") issued by the Enforcement Officer to defendants Sarmento J. Paixao, Jr. and Paixao Properties, Inc. (collectively "Paixao"). The Order, dated January 20, 2010, required Paixao to cease and to desist from use of property ("Property") located at 30 Ware Road in Belchertown. The Order required Paixao to remove an office trailer from the Property. Paixao appealed to the ZBA the portion of the Order requiring removal of the trailer. After a public hearing, the ZBA overturned the appealed portion of the Order, and determined that Paixao could keep the trailer on the Property, under the condition that Paixao disconnect from the trailer electricity and a propane tank.
This case came on to be heard by the court on the Town's motion for judgment on the pleadings. In a decision of even date, the court (Piper, J.) has allowed the Town's motion. In accordance with the court's decision, it is
ORDERED and ADJUDGED that the Decision of the Board proceeded on legally untenable grounds, and was in excess of the authority of the Board. So much of the Decision of the Board as allowed, albeit with conditions, the continued presence of the trailer on the Property was in error and is ANNULLED. The Board without delay shall issue a new Decision upholding the Order of the Enforcement Officer.
By the Court. (Piper, J).
TOWN OF BELCHERTOWN, acting by and through its BOARD OF SELECTMEN and ZONING ENFORCEMENT OFFICER v. SARMENTO J. PAIXAO JR.; PAIXAO PROPERTIES, INC.; and GREGORY GALANEK, RICHARD BARRY, RAYMOND GOFF, BERNADETTE HARRIGAN, DAVID LUCEY, and ROBERT HISLOP, as they are members of the TOWN OF BELCHERTOWN ZONING BOARD OF APPEALS