On July 21, 2011 Joseph H. Chiaraluce, as Trustee of the Chiaraluce Realty Trust (Chiaraluce), filed the first complaint in these two now consolidated actions under G.L. 40A, §17, seeking review of a decision by the Town of Wareham Zoning Board of Appeals (Board or ZBA), whose members are defendants. In the decision, the Board granted Chiaraluce a special permit under Section 1322 of the Town of Wareham Zoning Bylaws (Bylaws); the Board also upheld the refusal of the building inspector to issue Chiaraluce an as of right building permit to build a nonconforming single family dwelling at 16 Wankinquoah Avenue (Locus).
On July 25, 2011 Denise R. DePedro, as trustee of the 18 Wankinco Avenue Realty Trust, Mary T. Nielsen, John W. Downey, and Maria P. Downey (plaintiffs) filed in this court a separate complaint pursuant to G.L. ch. 40A, §17, seeking review of the same decision by the Board. Plaintiffs sought to appeal so much the decision of the ZBA as granted to Chiaraluce a special permit pursuant to Section 1322 of the Bylaws for the purpose of reconstructing a nonconforming structure at the Locus.
These consolidated cases came on to be heard by the court (Piper, J.) on motions for summary judgment, and an Order Granting Partial Summary Judgment entered July 16, 2012. The court thereafter allowed a motion for remand to the ZBA, and an Order of Remand issued October 26, 2012. Following further proceedings before the Board, it issued a decision on remand, filed with the municipal clerk on March 13, 2013. The court allowed motions to file amended complaints by Chiaraluce and the plaintiffs, appealing from the 2013 decision of the Board, and the amended complaints were filed with the court April 17, 2013.
These consolidated cases came on for trial by the court (Piper, J.). In a decision of even date, the court has made findings of fact and rulings of law.
In accordance with the courts Order Granting Partial Summary Judgment, and with the decision issued today, it is
ORDERED and ADJUDGED that Chiaraluce has no right (whether as of right, pursuant to G.L. c. 40A, §6, or pursuant to special permit provisions of the Bylaws) to rebuild, recreate, or replace the nonconforming residential structure formerly on the Locus (and damaged and removed in 1991), that right having been abandoned. It is further
ORDERED and ADJUDGED that the decisions of the Board under review in these appeals, to the extent those decisions grant to Chiaraluce rights to to rebuild, recreate, or replace the nonconforming residential structure formerly on the Locus (and damaged and removed in 1991), including by special permit s) referred to in the decisions, are legally untenable and outside the lawful authority of the Board, and are ANNULLED. It is further
ORDERED and ADJUDGED that the decisions of the Board under review in these appeals, to the extent those decisions deny, or withhold from, Chiaraluce permits or other rights to rebuild, recreate, or replace the nonconforming residential structure formerly on the Locus (and damaged and removed in 1991), as of right or otherwise, are UPHELD AND AFFIRMED. It is further
ORDERED AND ADJUDGED that no costs, fees, damages, or other amounts are awarded to any party.
By the Court.
JOSEPH H. CHIARALUCE, Trustee of the CHIARALUCE REALTY TRUST v. KENNETH R. FERREIRA, MICHAEL A. MARTIN, MARY SCARSCIOTTI, RICHARD SECHER, and DAVID SHARKEY, as They Are Members of the WAREHAM ZONING BOARD OF APPEALS.