Richard E. Kaplan and David E. Kaplan, as they are Trustees of Plaza Realty Development Trust (Trust), owners of the property at 29-35 Storey Avenue (Route 113) in Newburyport, Massachusetts, by a deed dated September 17, 2002 and recorded in the Essex County South District Registry of Deeds at Book 19276, Page 446 (the Property), filed their complaint in this action on November 18, 2014. Count I of the Trust’s complaint is an appeal pursuant to G.L. c. 40A, § 17, of the defendant City of Newburyport Zoning Board of Appeals’ (ZBA) November 5, 2014 decision (ZBA Decision) denying the Trust’s appeal of the Building Inspector’s denial of its application for a building permit and affirming the site plan decision of the City of Newburyport Planning Director (Planning Director) dated July 9, 2014 (the 2014 Site Plan Decision) with respect to proposed modifications to the site plan for the Property approved on July 18, 2007 (the 2007 Site Plan Approval). Count II of the Trust’s complaint seeks a declaration pursuant to G.L. c. 240, § 14A. The Trust filed the Plaintiffs’ Motion for Summary Judgment on January 20, 2015.
The Plaintiffs’ Motion for Summary Judgment came on to be heard on March 3, 2015. In a memorandum and order of even date (the Memorandum and Order), the court (Foster, J.) has allowed the Plaintiffs’ Motion for Summary Judgment.
In accordance with the Memorandum and Order issued today, it is
ORDERED, ADJUDGED and DECLARED that (a) none of the use and dimensional requirements that only appear in § XV of the Zoning Ordinance of the City of Newburyport (Ordinance), including but not limited to §§ XV-H.a.9 and XV-H.a.10, can be applied in site plan review of the Property, (b) any modification to the 2007 Site Plan Approval must incorporate the curb cut permit for the Property issued October 9, 2014 by the Massachusetts Department of Transportation and may not modify that permit, (c) the 2007 Site Plan Approval remains in full force and effect, and (d) the Planning Director may not condition approval of the Trust’s proposed modifications to the 2007 Site Plan Approval on further modifications beyond those proposed by the Trust. It is further
ORDERED, ADJUDGED and DECLARED that the ZBA Decision is ANNULLED. It is further
ORDERED, ADJUDGED and DECLARED that this matter is REMANDED to the ZBA. The ZBA is ORDERED to ANNUL the 2014 Site Plan Decision and remand the Trust’s application for approval of the proposed changes to the 2007 Site Plan Approval to the Planning Director for new site plan review conducted consistent with the Memorandum and Order and this Judgment.
By the Court.