Plaintiffs Guastavino Realty, LLC ("Guastavino") and John Tocci ("Tocci") (together, "Plaintiffs") filed their unverified Complaint on February 10, 2011, pursuant to the provisions of G.L. c. 40A, § 17, appealing a decision (the "2011 Decision") of Defendant City of Woburn Zoning Board of Appeals (the "ZBA") which upheld a Cease and Desist Order (the "Cease and Desist Order") of Defendant Building Commissioner Steve Paris (the "Building Commissioner") (together with the ZBA, "Defendants") relative to property located at 660 Main Street, Woburn, MA ("Locus"). A case management conference was held on March 23, 2011. A pre-trial conference was held on January 3, 2012. A site view and the trial at the Middlesex Superior Court in Woburn were held on Thursday, February 28, 2012. Post-trial briefs were filed on April 25, 2012 and April 26, 2012, respectively. The matter was then taken under advisement, and a decision of today's date (the "Decision") has been issued.
Testimony at trial was given by Plaintiffs' witnesses John Carbone (prior owner of Locus), Tocci (Plaintiff), Paul Meaney (prior member of Woburn City Council), and Leonard Harmon (neighbor). Testimony was given by Defendants' witnesses Irene Kerr (owner of abutting property) and Victor Allen (owner of abutting property). Sixteen exhibits were submitted into evidence.
In accordance with the Decision it is:
ORDERED and ADJUDGED that the letters between Tocci and the Building Commissioner (Exhs. 11, 14, 15, and 16) are relevant, as they shed light on Tocci's intentions regarding the driveway on Locus from Lowell Street (the "Lowell Street ROW") and bring clarity to the timeline of its use.
ORDERED and ADJUDGED that the November 18, 1999 Decision of the ZBA ordering that Tocci be granted a building permit is relevant, as it reveals information regarding plans that show removal of the Lowell Street ROW.
ORDERED and ADJUDGED that there is no prejudicial effect in admitting Exhs. 11, 12, 14, 15, and 16 to the record, and they are so admitted.
ORDERED and ADJUDGED that that the one year period specified in the Woburn Zoning Ordinance is insufficient in light of the two year minimum mandated by the third paragraph of G.L. c. 40A § 6.
ORDERED and ADJUDGED that Plaintiffs have not met the burden of showing that their use of the Lowell Street ROW did not cease for a two year period since 1985.
ORDERED and ADJUDGED that Plaintiffs' representations to both the Building Commissioner and ZBA that the Lowell Street ROW would be "deleted" was sufficient to indicate Plaintiffs' intention to abandon use of that ROW.
ORDERED and ADJUDGED that the ZBA could have upheld the Cease and Desist Order on grounds of abandonment or nonuse - either or both - without being arbitrary, capricious, unreasonable, or beyond the scope of their authority.
ORDERED AND ADJUDGED that Plaintiffs' appeal of the 2011 Decision is DENIED.
By the court. (Sands, J.)
GUASTAVINO REALTY, LLC, and JOHN TOCCI, PRESIDENT OF GUASTAVINO REALTY, LLC vs. EDWARD ROBERTSON, MARGARET PINKHAM, DANIEL PARRISH, KENNETH SUMMERS, and JOSEPH LEARY, as they are members of THE CITY OF WOBURN ZONING BOARD OF APPEALS, and STEVE PARIS, ACTING BUILDING COMMISSIONER AND ZONING ENFORCEMENT OFFICER