Home JAY BOUTIN, EMIL DEMARS, BEVERLY DEMARS, CHARLES SHEBELL, MARJORIE SHEBELL, ELLERY BOUTIN, DIANNE BOUTIN, DAVID MANNING, and CHERYL MANNING [Note 1], [Note 2] vs. TUPPER BROWN, ALYN HASTINGS, RAY PURINGTON, and SUZANNE SMILEY, as they constitute the TOWN OF GILL ZONING BOARD OF APPEALS, FRANKLIN COUNTY BOAT CLUB, INC., and FIRST LIGHT POWER [Note 3]

MISC 10-440199

October 12, 2012

Sands, J.

JUDGMENT

Plaintiffs filed their unverified Complaint on September 28, 2010, appealing, pursuant to the provisions of G. L. c. 40A, § 17, a decision of Defendant Town of Gill Zoning Board of Appeals (the "ZBA") which issued a special permit (the "Pavilion Permit") to construct a pavilion (the "Pavilion") to Defendant Franklin County Boat Club, Inc. (the "Boat Club") on property owned by Defendant First Light Power ("First Light") located at 39 Oak Street, Gill, Massachusetts ("Locus"). The ZBA filed its Answer on October 8, 2010. The Boat Club filed its Answer on November 9, 2010. A telephonic case management conference was held on November 10, 2010.

Plaintiffs filed their Motion for Summary Judgment on April 29, 2011, together with supporting memorandum and Plaintiffs' Statement of Uncontested Material Facts. A telephonic status conference was held on October 14, 2011. As discussed at such status conference and pursuant to an order from this court, Plaintiffs filed a revised Motion for Summary Judgment on November 15, 2011, together with supporting memorandum and a Joint Statement of Uncontested Material Facts. [Note 4] The Boat Club filed its Opposition to Motion for Summary Judgment on December 15, 2011, together with supporting memorandum and Appendix, including the Affidavit of Charles Reum (Commodore of the Boat Club) (the "Reum Affdiavit"), dated June 2, 2011. The ZBA filed its Motion for Summary Judgment and Opposition on January 17, 2012, together with supporting memorandum. A hearing was held on all motions on February 27, 2012, and the matter was taken under advisement. [Note 5] A Decision of today's date (the "Decision") has been rendered. In accordance with the Decision it is:

ORDERED and ADJUDGED that this court cannot determine on this summary judgment record whether the construction of the Pavilion as an accessory structure to a clubhouse situated on Locus and constructed pursuant to a special permit issued December 22, 2009, ("the Clubhouse") is a change or substantial extension of the marina and boat club use [Note 6] within the meaning of G. L. c. 40A, § 6 ("§6").

ORDERED and ADJUDGED that construction of the Pavilion cannot be allowed pursuant to the Pavilion Permit, inasmuch as the Pavilion is not an extension, alteration, reconstruction, or change in use [Note 7] of any preexisting nonconforming structure on Locus.

ORDERED and ADJUDGED that the ZBA's Motion for Summary Judgment is DENIED, inasmuch as the ZBA Decision does not provide a valid basis for the Pavilion Permit relative to the Pavilion as a nonconforming structure.

ORDERED and ADJUDGED that Plaintiffs' Motion for Summary Judgment is ALLOWED, inasmuch as the Pavilion cannot be allowed pursuant to § 6 and § 13, not being an extension, alteration, reconstruction, or change in use of a preexisting nonconforming structure on Locus.

FOOTNOTES

[Note 1] Stanley Johnson, Geraldine Johnson, Shawn Sevoian, and Kathryn Sevoian were originally Plaintiffs, but an assented to Motion to Dismiss was filed relative to Stanley Johnson and Geraldine Johnson on October 25, 2010, and relative to the Shawn Sevoian and Kathryn Sevoian on November 12, 2010.

[Note 2] Max Brody ("Brody") and Joanna Frankel ("Frankel") were originally Plaintiffs, but an assented to Motion to Dismiss was filed relative to Brody and Frankel on November 22, 2010. This court received an undated letter from Brody and Frankel stating that they "never told anyone that [they] wanted to become involved in this lawsuit and [they] never gave [their] permission for [their] names to be used in the lawsuit." Such letter denies that Brody and Frankel brought this action, that they were represented by counsel, and that they authorized any papers being signed in their names.

[Note 3] First Light was defaulted on November 19, 2010.

[Note 4] For purposes of this case, the materials filed by Plaintiffs on November 15, 2011, supersede the materials filed on April 29, 2011.

[Note 5] A telephonic status conference was held on June 27, 2012, with all parties present, at which this court requested that the parties provide additional information relative to the past and present locations of structures on Locus. In response, the parties jointly indicated the location of various structures on a copy of an undated plan titled "PRELIMINARY PROGRESS PRINT" (the "Agreed Plan"). This court received the Agreed Plan as an attachment to an email dated June 29, 2012 (the "Agreed Email"), which contained clarifying notes.

The Agreed Plan (without the locations jointly indicated by the parties) is also page eight of Exhibit A to the Boat Club's Opposition.

[Note 6] As stated in the Decision, the "Boat Club has used Locus as a boat club since 1976, and as a marina since an unknown date prior to May 29, 1997."

[Note 7] Section 13 of the Town of Gill Zoning Bylaws ("§13") provides that a special permit may allow "nonconforming structures or uses" to be "changed in use." As used here, the phrase "change in use" refers to the potential change in use of a preexisting nonconforming structure (the Clubhouse).