Plaintiffs Ronald T. Plotka (Plotka) and Humphrey Street Realty Associates, LLC., (together, Plaintiffs) filed their Unverified Complaint for Declaratory and Injunctive Relief (10 MISC 428294) on April 27, 2010, seeking 1) reversal of Defendant Town of Swampscott Zoning Board of Appeals (the ZBA) decision (the ZBA Decision) to enforce the Inspector of Buildings (Building Inspector) violation notice (the Violation Notice) relative to a sign (the New Sign); 2) judgment annulling the ZBAs denial of Plotkas special permit application for the New Sign because such denial was arbitrary, capricious, and contrary to law, and 3) judgment directing the Building Inspector to issue a building permit for the New Sign. The ZBA and the Building Inspector (collectively the Town) filed their Verified Counterclaim on August 2, 2010, seeking 1) judgment affirming the ZBAs denial of Plotkas appeal of the Violation Notice; 2) judgment declaring Plotka, in erecting the New Sign, violated Sections 18.104.22.168 and 22.214.171.124 of the Swampscott Zoning Bylaw (the 2000 Bylaw); and 3) permanent injunction prohibiting Plotka from erecting a sign that does not comply with the 2000 Bylaw and an order for Plotka to remove the New Sign. Plotka filed an Answer to the Verified Counterclaim on December 20, 2010.
Plaintiffs filed their Motion for Summary Judgment (Summary Judgment 1) on May 31, 2011, together with Supporting Memorandum, Statement of Material Facts, and Affidavits of Ronald T. Plotka (Plotka Affidavit 1), Kenneth B. Shutzer, Esq., David Earley, Brittany Pickett, Jason Do, Michelle Wright, Katherine Do, Tiffany Stannard, Kyle Beatrice, and Ilan Amaroc. The Town also filed its Motion for Summary Judgment on May 31, 2011, together with Supporting Memorandum and Statement of Material Facts. On June 30, 2011, Plaintiffs filed their opposition to the Towns Summary Judgment Motion, together with the second Affidavit of Ronald T. Plotka (Plotka Affidavit 2) and Affidavit of Coreen S. Sullivan, Esq., and the Town filed its opposition to Plotkas Summary Judgment Motion with the Affidavit of Alan Hezekiah. On July 8, 2011, the Town filed a Motion to Strike the affidavits from business owners along the Humphrey Street Corridor because the statements did not reflect the affiants personal knowledge, and portions of Plotka Affidavit 1 because Plotka Affidavit 1 included hearsay and statements of personal opinion and belief (Motion to Strike 1), a Motion to Strike portions of Plotka Affidavit 2 (Motion to Strike 2) because Plotka Affidavit 2 included hearsay and statements of personal opinion and belief, and its Reply to Plaintiffs opposition to its Motion for Summary Judgment. On the same day, Plaintiffs filed their opposition to the Towns Motion to Strike 1 and a Reply to the Towns Opposition of their Motion for Summary Judgment. Plaintiffs filed their opposition to the Motion to Strike 2 on July 14, 2011, together with Affidavit of Carl D. Goodman, Esq. A Summary Judgment hearing was held on August 3, 2011, and at that time all motions were taken under advisement. On February 10, 2012, this court issued its Decision (Land Court Decision 1) finding that 1) the ZBA waived its right to object to an untimely appeal of the Violation Notice and is precluded from now raising the jurisdictional issue, 2) Plaintiffs did not meet their burden of proof to determine that the sign erected by Plaintiffs in 1970 to replace the original sign erected by Dr. Drake ( the Old Sign) was a pre-existing, nonconforming structure [Note 1], and as a result the ZBA Decision was remanded back to the ZBA for proceedings consistent with Land Court Decision 1, [Note 2] [Note 3] and 3) with respect to abandonment, there was not enough evidence before this court to make a determination as to the exact nature of the Old Sign. [Note 4]
On January 30, 2013, the ZBA issued a remand decision (the Remand Decision), which found that the Old Sign was not a pre-existing nonconforming structure, and that a variance was not warranted. Plaintiffs filed a new unverified Complaint (13 MISC 476750) on February 21, 2013, appealing the Remand Decision pursuant to G.L. c. 40A, § 17. At a status conference on April 24, 2013, the two cases were consolidated. Plaintiffs filed their Motion for Summary Judgment (Summary Judgment 2) on November 4, 2013, together with supporting memorandum., Concise Statement of Material Facts, and Appendix containing the Affidavit of Ronald T. Plotka, D.D.S. (Plotka Affidavit 3). On December 16, 2013, the ZBA filed its Opposition and Request for Judgment, supporting memorandum, Statement of Additional Material Facts, and Appendix containing the Affidavits of Susan J. Duplin (Town Clerk) and Alan Hezekiah (Town Local Inspector, former Inspector of Buildings). Plaintiffs filed their Reply on December 31, 2013. A hearing on all motions was held on January 6, 2014, and the matter was taken under advisement. A decision of todays date has been issued (Land Court Decision 2). In accordance with both Land Court Decision 1 and Land Court Decision 2, it is hereby:
ORDERED and ADJUDGED that the Towns Motion to Strike 1 is allowed in part, as the Towns objections to ¶¶ 8, 13, 14, 15, 16, 17, 25 of Plotka Affidavit 1 based on allegations of hearsay and as they are statements of belief and personal opinion are SUSTAINED. The portion of ¶ 8 stating The last prior sign was hung in order to replace the sign that hung previously to that sign, as it blew down is ADMISSIBLE as personal knowledge. The remaining portion of ¶ 8 stating the sign was no longer repairable is NOT ADMISSIBLE as it is opinion and personal belief.
ORDERED and ADJUDGED that the Towns Motion to Strike 2 is allowed in part and denied in part, as the Towns objections to ¶¶ 9 and 10 are DENIED. The Towns objections to ¶¶ 4 and 7 are DENIED with respect to Dr. Drakes statements and SUSTAINED with respect to Dr. Arrols statements.
ORDERED and ADJUDGED that The Towns Motion to Strike the eight affidavits of business owners as statements of personal opinion and belief that did not accurately reflect the witnesses testimony is GRANTED.
ORDERED and ADJUDGED that the ZBA waived its right to assert an untimely appeal of the Violation Notice and therefore is now precluded from raising the jurisdictional issue.
ORDERED and ADJUDGED that in Plaintiffs Summary Judgment 1, Plaintiffs did not meet their burden of proof to determine that the Old Sign was a pre-existing nonconforming structure.
ORDERED and ADJUDGED that the ZBA Decision shall be remanded back to the ZBA for proceedings consistent with Land Court Decision 1.
ORDERED and ADJUDGED that the Old Sign was not a pre-existing nonconforming structure.
ORDERED and ADJUDGED that there is no basis for a Special Permit for the New Sign based on Plaintiffs argument of a pre-existing nonconformity.
ORDERED and ADJUDGED that the New Sign does not meet the requirements for a variance.
ORDERED and ADJUDGED that the New Sign is not entitled to any zoning protection, and must be removed. Plaintiffs shall remove the New Sign within thirty days of the date of Land Court Decision 2.
ORDERED and ADJUDGED that Plaintiffs Summary Judgment 2 is DENIED and the Towns Motion for Judgment is ALLOWED.
[Note 1] On remand, the parties were urged to introduce evidence relevant to the disposition of this issue.
[Note 2] The Town argued that even if a special permit were allowed, the Bylaw also requires a variance because the New Sign increases an existing nonconformity. Gale v. Zoning Bd. of Appeal of Gloucester, 80 Mass. App. Ct. 331 (2011) (under the second except clause in G.L. c. 40A, §6's first paragraph, single and two-family residences are afforded special treatment in relation to other nonconforming structures concerning alteration or addition of the nonconformity, under which a variance requirement is precluded) is not controlling, as Locus (as hereinafter defined) involves a commercial use rather than a residential use.
[Note 3] Plaintiffs shall have the opportunity on remand to provide additional information relative to the grandfather status of the Old Sign, and the ZBA shall have the opportunity to state reasons for its decision. A determination of the grandfathered status of the Old Sign is necessary in order for the ZBA to set forth clearly its reasons for the special permit determination because, if no such protection exists, a variance, not a special permit, may be required. See Roberts-Haverhill Assoc. v. City Council of Haverhill, 2 Mass. App. Ct. 717 -718 (1974) (it is proper for a trial court to order such further proceedings, including a new hearing, in order for a zoning board to make further findings of fact, state more fully the reasons for its decision, or instruct the board to reconsider an application in light of stated legal principles different from what the board previously considered).
[Note 4] On remand, this court urged the parties to introduce facts and evidence addressing this issue more thoroughly.