This action commenced in this court June 25, 2012. An amended complaint was filed August 13, 2012.
Plaintiffs John C. Powers and David C. Warner, as Trustees of the Collins Irrevocable Property Trust, (Plaintiffs) appeal the decision of the Falmouth Zoning Board of Appeals (Board), whose members are defendants, to grant a special permit to defendant Johnson Homes, Inc. (Johnson Homes). Frank P. Bagarella, Trustee of Nyes Park Professional Offices Trust, along with Francis P. Bagarella and Carol A. Bagarella, Trustees of the Pharmacy Realty Trust (Bagarellas) hold title interests in the locus and intervened as defendants in this action.
The special permit decision (Decision) was filed with the municipal clerk on June 8, 2012; it authorized Johnson Homes to build five multi-family residential structures, each containing two apartments, in a business-zoned area of North Falmouth. Plaintiffs also seek in this case a determination under G. L. c. 240, §14A as to the validity of a 2007 rezoning of land which affected the properties at issue in this case; Plaintiffs contend that this change constituted spot- zoning in violation of G. L. c. 40A, § 4.
This case came on to be heard by the court (Piper, J.) June 18, 2013 on motions for summary judgment filed by Johnson Homes and the Bagarellas. After hearing, the court, from the bench, granted in part the summary judgment motions, as reflected in a docket order (Summary Judgment Ruling) entered that day. This case then came on to be tried to the court (Piper, J.) which, in a decision of even date, has made findings of fact and rulings of law. In accordance with the Summary Judgment Ruling and the courts decision issued this day, it is
ORDERED and ADJUDGED that the Decision of the Board is not beyond the scope of authority of the Board; is not arbitrary, capricious, unreasonable or contrary to law; is not legally entitled to be annulled or modified by the court; is AFFIRMED, and shall stand as issued. It is further
ORDERED, ADJUDGED and DECLARED that the rezoning affecting the land at issue in this case, brought about by an amendment, adopted in 2007, to the zoning map of the Town, was not improper or invalid by reason of illegal spot zoning, and is not to be declared or treated as invalid on that ground. It is further
ORDERED and ADJUDGED that no costs, fees, damages or other amounts are awarded to any party.
By the Court.
JOHN C. POWERS and DAVID C. WARNER, Trustees of the Collins Irrevocable Property Trust, v. THE TOWN OF FALMOUTH; MATTHEW McNAMARA, DENNIS MURPHY, PATRICIA A. FAVULLI, KENNETH FOREMAN, SCOTT ZYLINSKI, PATRICIA JOHNSON and DAVID HADDAD, as They Are Members of the FALMOUTH ZONING BOARD OF APPEALS; and JOHNSON HOMES, INC. and FRANK P. BAGARELLA, Trustee, Nye's Park Professional Office Trust; and FRANCIS P. BAGARELLA and CAROL A. BAGARELLA, Trustees of the Pharmacy Realty Trust.