Sean Burke, Rita Burke, Sharon Wiezenbaum, Amy Auslander Hirsch as Trustee of the Amy Auslander Hirsch Revocable Trust, and Barbara C. Ford, as Trustee of the Barbara C. Ford Revocable Trust (Plaintiffs) filed their complaint in this action on July 29, 2013 and their amended complaint on June 25, 2014 (complaint). The plaintiffs complaint contains four counts and seeks declarations pursuant to G.L. c. 240, § 14A, against the defendants Town of Amherst and Building Commissioner of Amherst (Town) with respect to the application of certain provisions of the Town of Amherst Zoning Bylaw (Bylaw) to property (Property) owned by defendant W.D. Cowls, Inc. Land Company (Cowls) that was proposed to be developed by defendant Landmark Properties (Landmark). Cowls and Landmark filed their cross-claim against the Town on June 9, 2014, seeking a declaration under G.L. c. 240, § 14A with respect to the application of certain provisions of the Bylaw to the Property, and their motion for a further
cross-claim under G.L. c. 240 §14A against the Town was allowed on September 24, 2014. Cowls and Landmark, and the Town each filed Motions for Summary Judgment on July 28, 2014. The Plaintiffs filed their Cross-Motion for Summary Judgment September 2, 2014.
The Motions and Cross-Motion for Summary Judgment of Cowls, Landmark, the Town, and the Plaintiffs came on to be heard on September 24, 2014. At that hearing, Plaintiffs moved to dismiss Counts One through Three of the complaint, and Cowls and Landmark moved to amend their answer. On November 14, 2014, the court (Foster, J.), issued its Order on Plaintiffs Cross-Motion to Dismiss and Motion of Defendants W.D. Cowls, Inc. and Landmark Properties to Amend Cross-Claim (Order on Motion to Dismiss), denying the Motion to Amend and allowing the Motion to Dismiss. In a Memorandum and Order of even date, the court (Foster, J.) has allowed in part and denied in part the Motions for Summary Judgment and the Cross-Motion for Summary Judgment.
In accordance with the courts November 14, 2014 Order on Motion to Dismiss and its Memorandum and Order issued today, it is
ORDERED, ADJUDGED and DECLARED that the requirement in § 3.3211 of the Bylaw that non-owner occupied duplexes are only allowed in the R-O district by special permit does not apply to non-owner occupied duplexes in a cluster development; such non-owner occupied duplexes are subject to site plan approval as set forth in Article 4 of the Bylaw. It is further
ORDERED, ADJUDGED and DECLARED that the phrase minimum standard street frontage required in the district where the lot has its frontage in § 6.40 of the Bylaw means the minimum standard street frontage for cluster developments set forth in Table 3 of the Bylaw before any modification of the frontage requirement by the Planning Board as part of site plan review under § 4.3 of the Bylaw. It is further
ORDERED AND ADJUDGED that Counts One, Two, and Three of Plaintiffs complaint are DISMISSED without prejudice.
By the Court.
SEAN BURKE, RITA BURKE, SHARON WIEZENBAUM, AMY AUSLANDER HIRSCH as Trustee of the AMY AUSLANDER HIRSCH REVOCABLE TRUST, and BARBARA C. FORD, as Trustee of the BARBARA C. FORD REVOCABLE TRUST v. TOWN OF AMHERST, BUILDING COMMISSIONER OF AMHERST, W.D. COWLS, INC. LAND COMPANY, and LANDMARK PROPERTIES.