Home STUART L. MILLER, JR. vs. THE ZONING BOARD OF APPEALS FOR THE CITY OF HAVERHILL; GEORGE MORIARTY, WILLIAM SMITH, ROBERT PISTONE, SR., LEONARD DOUGLAS, VINCENT KISSEL, RANDOLPH SABLICH, and ALBERT RIZZOTTI, as they are Members of the ZONING BOARD OF APPEALS FOR THE CITY OF HAVERHILL; RICHARD OSBORNE, in his Capacity as BUILDING INSPECTOR and ZONING ENFORCEMENT OFFICER FOR THE CITY OF HAVERHILL; and JAMES H. GRAHAM

MISC 09-414558

May 9, 2012

Sands, J.

JUDGMENT

With:

Plaintiff, Stuart Miller, filed his unverified Complaint (09 MISC 414558) ("Case 1") on October 20, 2009, pursuant to the provisions of G. L. c. 40A § 17, appealing a decision ("ZBA Decision 1") of Defendant Haverhill Zoning Board of Appeals (the "ZBA") which upheld a decision of Defendant Haverhill Building Inspector (the "Building Inspector") relative to the allowance of the accessory use of a building (the "Barn") on property owned by Defendant James H. Graham ("Graham") and located at 669 Kenoza Street, Haverhill, MA ("Defendant Property"). On November 27, 2009, Graham filed his Response to Complaint. On December 9, 2009, a case management conference was held and the ZBA and the Building Inspector filed their Answer and Submission of the Administrative Record.

Plaintiff filed his unverified Complaint (11 MISC 444621) ("Case 2") on January 18, 2011, pursuant to the provisions of G.L. c. 40A, § 17, appealing a decision ("ZBA Decision 2") of the ZBA, dated December 29, 2010, which upheld a decision of the Building Inspector relative to the allowance of an alleged side yard setback violation for the Barn. A case management conference for this case was held on February 15, 2011, at which time the two cases were consolidated. On February 14, 2011, Graham filed a Motion to Dismiss Case 2, together with supporting memorandum and Affidavit of Donald F. Borenstein, Esq. Plaintiff filed his Opposition to the Motion to Dismiss on June 1, 2011, together with Affidavits of Stuart L. Miller, Jr. and Kelley A. Jordan-Price, Esq., and Appendix.

Plaintiff filed his Motion for Summary Judgment on October 26, 2011, together with supporting memorandum, Statement of Material Facts, and Appendix. On December 16, 2011, Graham filed his Cross-Motion for Summary Judgment, together with supporting memorandum, Opposition to Plaintiff's motion, Statement of Material Facts, and Affidavits of James H. Graham and Donald Borenstein (second). [Note 1] Plaintiff filed his Opposition to Cross-Motion on January 6, 2012, Reply Brief, and Affidavits of Kelley Jordan-Price (second), Thomas M. Cunningham, P. E. (the "Cunningham Affidavit"), and William F. Curley, Jr. (certified real estate appraiser) (the "Curley Affidavit"). On January 11, 2012, Graham filed his Motion to Strike the Cunningham Affidavit and the Curley Affidavit. A hearing was held on all motions on January 11, 2012. With permission of this court, Graham filed a Supplementary Letter dated February 23, 2012, and at that time the matter was taken under advisement. A decision of today's date (the "Decision") has been issued.

In accordance with the Decision, it is:

ORDERED and ADJUDGED that the Cunningham Affidavit and Curly Affidavit were properly filed with this court and, after inspection, are not based purely on speculation.

ORDERED and ADJUDGED that Graham's Motion to Strike is DENIED.

ORDERED and ADJUDGED that this court has subject matter jurisdiction pursuant to G. L. c. 40A § 7, relative to the appeal of ZBA Decision 2.

ORDERED and ADJUDGED that ZBA Decision 2 is not precluded from appeal under the doctrine of res judicata.

ORDERED and ADJUDGED that this court has subject matter jurisdiction over ZBA Decision 2.

ORDERED and ADJUDGED that Graham's Motion to Dismiss is DENIED.

ORDERED and ADJUDGED that Plaintiff has standing to pursue this matter.

ORDERED and ADJUDGED that the Barn is a permitted accessory structure under the City of Haverhill Zoning Ordinance (the "Ordinance"), the uses Graham engages in within the Barn are proper accessory uses as they are incidental and subordinate to the primary use of the property as a residence.

ORDERED and ADJUDGED that ZBA Decision 1 is upheld as it relates to the same. [Note 2]

ORDERED and ADJUDGED that the Barn is in violation of the Ordinance's dimensional requirements, specifically the side-line setback requirement that an accessory structure in an SC zoning district be twenty-five feet from the side lot line.

ORDERED and ADJUDGED that ZBA Decision 2 , insofar as it is in contradiction with this opinion, is overturned as it is arbitrary and capricious. This matter shall be remanded to the ZBA for further action in this regard. [Note 3]

ORDERED and ADJUDGED that Plaintiff's Motion for Summary Judgment is DENIED as it relates to the uses being made of the Barn and Graham's Cross-Motion for Summary Judgment as it relates to the same is GRANTED.

ORDERED and ADJUDGED that Plaintiff's Motion for Summary Judgment as it relates to the dimensional violations of the Barn is GRANTED and Graham's Cross-Motion for Summary Judgment as it relates to the same is DENIED.

By the court. (Sands, J.)

FOOTNOTES

[Note 1] Graham also filed a Motion for Site View, which was opposed by Plaintiff. This court does not usually take a site view on a summary judgment motion, as there are only supposed to be issues of law, and not of material facts, for resolution. Graham argues that this matter is not ripe for summary judgment, as there are issues of material facts.

[Note 2] It is worth noting that though Graham's use of the Barn is a proper accessory use, these uses must still follow all applicable Ordinance regulations. For instance, though numerous vehicles may fit inside the Barn, Graham must not exceed the maximum number permitted by the applicable Ordinance provisions without being in violation of the Ordinance and subject to penalties. Since the Barn has characteristics of a private garage, and the Ordinance limits the number of noncommercial vehicles in a private garage to three, it is necessary for Graham to adhere to this provision of the Ordinance.

[Note 3] Graham may apply for a variance in order to be exempted from the side-line requirement; and the ZBA may deem the violation de minimis, as it is relatively minor (3 feet at its maximum, descending 8-12 feet along the side of the Barn until conformity is met).