Plaintiffs initiated this action on June 9, 2006, appealing a decision of the Falmouth Zoning Board of Appeals (the Board) which declined to reverse a decision of the towns Building Commissioner who, in turn, had refused Plaintiffs request to enforce a provision of the Falmouth Zoning Bylaw (Bylaw) which, in their opinion, prohibits Defendants Rodrigues and Da Silva from occupying or allowing others to occupy an accessory structure for residential purposes on their abutting property.
Plaintiffs filed a Motion for Summary Judgment, memorandum in support, statement of undisputed facts, and an appendix of exhibits on October 29, 2010. An affidavit by William R. Witter was filed on November 3, 2010. A hearing on the motion was held on February 28, 2011, at which time counsel for the Plaintiffs and Mr. Da Silva, who is proceeding pro se, appeared and argued. The material facts were not in dispute. A Decision has been entered this day granting Plaintiffs Motion for Summary Judgment. In accordance with that decision, it is hereby
ORDERED and ADJUDGED that the accessory structure on the Locus exceeds the Bylaws maximum percentage of floor area and therefore cannot constitute an accessory use.
ORDERED and ADJUDGED that the Bylaw does not permit an accessory structure located in the agricultural zoning district to be used as a residence.
ORDERED and ADJUDGED that the building permit was improperly issued and must be revoked and that the Boards decision must be annulled.
Execution of this judgment is stayed until May 1, 2011, in order to provide Defendant Da Silva, who is currently residing in the accessory structure on the Locus, time to find a new place to live.
By the Court. (Trombly, J.)
WILLIAM R. WITTER and DEBORAH C. WITTER v. KENNETH L. SWARTZ, PATRICIA FAVULLI, and DENNIS MURPHY, as members of the FALMOUTH BOARD OF APPEALS; ELADIO R. GORE, as Building Commissioner for the Town of Falmouth; MANOEL NETO RODRIGUES and GERTALIANO ALVES DA SILVA