Home ARTHUR BUCKLAND and EUNICE CHEN BUCKLAND, Trustees of the 6 TILTON WAY REALTY TRUST, WILLIAM FRUHAN, JR., and VIRGINIA FRUHAN vs. GERRET CONOVER, NANCY KELLY, RICHARD KNIGHT, JOHN MAGNUSON, and NANCY WHIPPLE, Members of the TOWN OF EDGARTOWN ZONING BOARD OF APPEALS, and DONNA MCPHERSON.

MISC 15-000476

January 13, 2017

SANDS, J.

JUDGMENT

In this case, Plaintiffs Arthur and Eunice Chen Buckland (the "Bucklands"), trustees of the 6 Tilton Way Realty Trust and William and Virginia Fruhan. (the "Fruhans") (together, the "Abutters") object to the issuance of a special permit granted by Defendant Town of Edgartown Zoning Board of Appeals (the "ZBA") to Defendant Donna McPherson (the "Applicant"), which permitted the Applicant to raze and replace the existing structures at the property located at 10 Tilton Way in Edgartown, MA, on Martha's Vineyard ("Locus") (the "Project").

To that end, on November 6, 2015 the Abutters filed an unverified Complaint, appealing, pursuant to G. L. c. 40A, § 17, the decision of the ZBA dated October 14, 2015, which unanimously granted the Applicant a special permit dated October 14, 2015 for the Project (the "2015 Special Permit"). The parties filed a joint statement on December 10, 2015. A case management conference was held on December 16, 2015, at which the court set discovery deadlines. At a status conference held on June 2, 2016, the court permitted limited additional discovery and set a briefing schedule for dispositive motions.

The Applicant filed her Motion for Summary Judgment on July 22, 2016. [Note 1] On August 22, 2016, the Abutters filed opposition to the Applicant's Motion. [Note 2] On September 12, 2016, the Applicant filed a reply to the Abutters' opposition brief. [Note 3] The court held a hearing on September 19, 2016, and, at that time, the matter was taken under advisement. [Note 4]

Of even date hereof, the court has issued a Decision (the "Decision"). NOW, THEREFORE, for the reasons stated in the Decision, it is hereby:

ORDERED and ADJUDGED that the Abutters' Motion to Strike portions of Morrison's affidavit is DENIED; and,

ORDERED and ADJUDGED that Applicant's Motion to Strike Rieske's affidavit is DENIED; and,

ORDERED and ADJUDGED that the Applicant's motion to strike late-filed papers is DENIED; and,

ORDERED and ADJUDGED that the Abutters have standing to have brought this appeal; and,

ORDERED and ADJUDGED that the ZBA did not err in hearing or granting the 2015 Special Permit as a non-repetitive petition, nor in failing to make specific findings as to the appropriateness of a repetitive petition under G. L. c. 40A, § 16; and,

ORDERED and ADJUDGED that it was reasonable for the ZBA to have reached the conclusion that "similar non-conformities" exist for purposes of Edgartown Zoning Bylaw (the "Bylaw") § 11.9(f); and,

ORDERED and ADJUDGED that the ZBA did not err in its assessment of the neighborhood character of the area in which Locus is located for purposes of Bylaw §11.9(f); and,

ORDERED and ADJUDGED that it was reasonable for the ZBA to conclude that the Project would cause no substantial detriment to the character of the neighborhood in which it is located; and,

ORDERED and ADJUDGED that the Applicant's Motion for Summary Judgment is ALLOWED; and,

ORDERED and ADJUDGED that the 2015 Special Permit is affirmed and upheld.

SO ORDERED.

FOOTNOTES

[Note 1] This motion was supported by a memorandum of law, statement of material facts, and appendix of exhibits containing, affidavits of ZBA Administrator Lisa Morrison ("Morrison") and architect Patrick Ahearn ("Ahearn"). On the same date, the ZBA filed a notice that it was joining in the Applicant's Motion for Summary Judgment.

[Note 2] This opposition brief included a supporting memorandum of law, a statement of additional material facts, and an appendix of exhibits containing affidavits of Plaintiff Arthur Buckland, architect Dennis C. Rieske ("Rieske"), and Meredith Wilson Doty (the Abutters' attorney). The Abutters filed a supplemental memorandum and supplemental statement of facts on August 31, 2016.

[Note 3] This reply brief (filed with the Abutters' assent) included a statement of additional material facts and an index containing affidavits of Ahearn and Salvatore Scudieri (an employee of the Abutters' counsel).

[Note 4] Also taken under advisement were motions to strike portions of Morrison's affidavit, to strike portions of the Applicant's statement of material facts, to strike the Abutters' supplemental opposition papers as untimely, for leave for the Abutters to have late-filed their supplemental papers, and to strike Rieske's Affidavit.