In this action, plaintiff Chestnut Hollow, LLC sought various determinations concerning an application for permit to install an LED monument sign at 41 Montvale Avenue, Stoneham, Massachusetts. In Count I of Chestnut Hollow's complaint, Chestnut Hollow appealed pursuant to G.L. c. 40A, § 17, a July 28, 2016 decision (the "ZBA Decision") of the defendant members of the Town of Stoneham Zoning Board of Appeals (the "ZBA") that granted Chestnut Hollow the requested permit, with conditions. Chestnut Hollow also named as a defendant in Count I the Town of Stoneham. In Count II of its complaint, Chestnut Hollow sought under § 17 to overturn the original decision of Stoneham's Building Inspector, who in April 2016 denied the requested building permit. In Count III of its complaint, Chestnut Hollow sought review of the ZBA Decision under G.L. c. 249, § 4.
After Chestnut Hollow filed suit on August 17, 2016, the ZBA and the Town asked for and received an extension of time to file a responsive pleading. The ZBA and the Town answered Chestnut Hollow's complaint on November 17, 2016.
On April 7, 2017, the case was temporarily stayed pending the resolution of the appeal in the related case of 92 Montvale, LLC v. Town of Stoneham Zoning Board of Appeals, 24 LCR 461 (2016) (Sands, J.), appeal pending, Mass. App. Ct. Docket No. 2016-P-1373.
On May 31, 2017, the Court lifted the stay so that the Court could resolve the issue of whether the current Stoneham Zoning Bylaw controls this case, or whether a prior version of the Bylaw controls. The ZBA and the Town thereafter moved for summary judgment. The Court denied that motion in September 2017, on account of disputed issues of fact. The Court held a trial on November 14, 2017. In accordance with this Court's Decision this same date, in light of the facts found after trial and the arguments of counsel, this Court
ORDERS, ADJUDGES and DECREES that:
A. Judgment is hereby entered in FAVOR of plaintiff Chestnut Hollow, LLC and AGAINST the defendant members of the Town of Stoneham Zoning Board of Appeals (the "ZBA"), on Count I of Chestnut Hollow's complaint (the "Complaint").
B. This Judgment shall serve as a building permit for the LED monument sign disclosed in the application that is the subject of the ZBA's Decision in this matter dated July 28, 2016, but such sign shall not be illuminated between the hours of 1:00 a.m. and 6:00 a.m. Chestnut Hollow is permitted to change the message on the monument sign once per day between the hours of 1:00 a.m. and 6:00 a.m.
C. Chestnut Hollow's claims against the Town of Stoneham in Count I of the Complaint are DISMISSED with prejudice.
D. Chestnut Hollow's claims in Count II of the Complaint are DISMISSED for lack of jurisdiction.
E. Chestnut Hollow's claims in Count III of the Complaint are DISMISSED with prejudice.
SO ORDERED.
CHESTNUT HOLLOW, LLC v. WILLIAM SULLIVAN, ROBERT SALTZMAN, RAYMOND MICHAEL DUFOUR, KEVIN MCLAUGHLIN, TOBIN SHULMAN, ERIC RUBIN, and LAURENCE ROTONDI, as they are members of the Town of Stoneham Zoning Board of Appeals, and the TOWN OF STONEHAM.