Home ROBERT A. NICHOLS, Trustee of the 100 Ocean Avenue Realty Trust and Trustee of the 3 Gilbert Heights Realty Trust vs. HARRY GROSSMAN, JEFFREY SHRIBMAN, BARBARA SHEFFTZ, DAVID F. DELANY, JOANNE SILVA, JOHN ROGERS, III, JONATHAN LOURIE, and JOHN BENNING, Members of the Marblehead Board of Appeals; STEVEN KINGSBURY; JEAN GREELEY; and FREDERICK SCHMID.

MISC 94-202844

May 26, 2017



This case is a dispute between neighbors regarding the construction of a house, alleged to be unlawful, twenty-four years ago, in 1993. After not initially appealing the issuance of a building permit issued to Plaintiff Robert A. Nichols, Trustee of the 100 Ocean Avenue Realty Trust (the "Ocean Trust") and of the 3 Gilbert Heights Realty Trust (the "Gilbert Trust") ("Plaintiff") to construct that house, and several months after it was built, Defendants Steven Kingsbury, Jean Greeley, and Frederick Schmid (together, the "Abutters") filed a request for zoning enforcement under G.L. c. 40A, §7, seeking, among other things, an order directing that the house be razed. When that request was denied by the Marblehead Building Commissioner (the "Commissioner"), the Abutters appealed to the Town of Marblehead Board of Appeals (the "ZBA", and together with the Abutters, "Defendants"), which reversed the decision of the Commissioner and granted the request for enforcement. Plaintiff timely appealed to the Land Court.

Given the amount of time this action has languished on the docket of the court, this case now comes to what is, all things considered, an anti-climactic end, as I am unable to reach the merits. Rather, for the reasons set forth below, this action must now be dismissed, with prejudice, due to lack of jurisdiction.

The procedural history of this case is as follows. Plaintiff commenced this action on February 1, 1994 by filing an unverified complaint, appealing, pursuant to G.L. c. 40A, §17:

(a) a decision of the ZBA (the "ZBA Decision") to overturn the Commissioner's denial of a zoning enforcement request filed by the Abutters relative to the development of Plaintiff's property, which comprises two lots located at 100 Ocean Avenue ("100 Ocean") and 3 Gilbert Heights Road ("3 Gilbert Heights") in Marblehead, Massachusetts (together, "Locus") [Note 1]; and,

(b) the issuance by the ZBA of a Notice of Constructive Grant and Approval of Application for Enforcement, which application had been filed by the Abutters.

On February 15, 1994, Plaintiff filed a certificate of service on all Defendants. As indicated by the docket, the case was inactive from February of 1994 to April of 2002. On April 29, 2002—after more than eight years of inactivity—the ZBA filed a motion to dismiss the Complaint for failure to prosecute (the "2002 Motion"). On May 22, 2002 a hearing was held on the 2002 Motion. The docket entry, dated May 22, 2002, states as follows with respect to the 2002 Motion: "No action taken. Counsel to report to Court to set up pre-trial conference." Following this instruction by the court, no action was taken by the parties, and the case again sat dormant for another twelve years.

On June 19, 2014, the Abutters filed a motion (the "2014 Motion"), by which they requested that the Complaint be dismissed for failure to prosecute, and also that the ZBA's 2002 Motion be allowed. On December 8, 2014, Plaintiff filed his opposition to the 2014 Motion, and, on December 24, 2014, the Abutters filed their reply brief. On February 11, 2015, a hearing was held on both the 2002 Motion and the 2014 Motion, at which the parties requested additional time to negotiate a settlement. By letter filed with the court on February 26, 2015, the parties reported they had been unable to reach a settlement. By Decision issued on May 21, 2015 (the "2015 Decision"), this court denied the 2014 Motion, finding that both parties were at fault for the delay in the case. [Note 2]

On September 22, 2015, the parties unsuccessfully attended mediation. At a September 29, 2015 status conference, this court established a schedule for filing dispositive motions. At a January 7, 2016 status conference, the court set a summary judgment hearing for April 29, 2016. However, when none of the parties filed summary judgment motions, this hearing was converted to a status conference, at which the parties represented that they were in agreement that the case would require a trial. An pre-trial conference was held on May 24, 2016, and a continued pre-trial conference was held on June 28, 2016, at which the court allowed the Abutters' motion to replace Defendants Frederick Schmid, Steven Kingsbury ("Kingsbury"), and Jean Greeley's ("Greeley") by their respective successors in interest. [Note 3] Also on that date, the court scheduled the trial of this matter for September 21 and 22, 2016. These dates were later rescheduled for September 26 and October 5, 2016. [Note 4]

A site view was taken by the court on the morning of September 30, 2016, and the first day of trial followed at the Housing Court in Salem. On October 5, 2016 the second day of trial was held at the Land Court in Boston. Testimony at trial was given for Plaintiff by John Nichols (son of Plaintiff) ("Nichols") and Alan Hezekiah (former Marblehead Building Commissioner) ("Hezekiah"). Testimony for Defendants at trial was given by Judith, Kingsbury, Edward Nilsson (architect) ("Nilsson"), Heidi Sanger (granddaughter of Greeley) ("Sanger"), Bruce Greenwald (architect) ("Greenwald"), and Steven Ozahowski (real estate appraiser) ("Ozahowski"). The parties submitted twenty-two exhibits into evidence at trial. The parties filed post-trial briefs on December 5 and 6, 2016, and, at that time, the matter was taken under advisement.

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 did not timely appeal the issuance of the Building Permit [Note 5] within thirty days of its issuance, and;

ORDERED and ADJUDGED that all of the Abutters had actual or constructive knowledge of the issuance of the Building Permit with adequate time to file a timely appeal thereof pursuant to G.L. c. 40A §§ 8 & 15, yet failed to do so, and;

ORDERED and ADJUDGED that the Abutters' request to the Commissioner for zoning enforcement pursuant to G.L. c.40A § 7, and their subsequent appeal to the ZBA and this court were BARRED, and;

ORDERED and ADJUDGED that the ZBA, and consequently this court, lacked jurisdiction to hear this appeal, and;

ORDERED and ADJUDGED that the ZBA Decision is hereby REVERSED, and the directives to the Commissioner (i.e., to revoke the Building Permit, for the House to be razed, for the occupancy permits for 100 Ocean and 3 Gilbert Heights to be revoked, and for 3 Gilbert Heights to be vacated) and the Notice of Constructive Grant issued therein by the ZBA are hereby VACATED.



[Note 1] More specifically, the ZBA Decision overturned (a) the Commissioner's refusal to make certain determinations regarding the application of the Marblehead Zoning Bylaw (the "Bylaw") and (b) his refusal to revoke the building permit and occupancy permit for 100 Ocean, to direct that the structure at 100 Ocean be razed, to revoke the occupancy permit for both 100 Ocean and 3 Gilbert Heights, and to issue a vacate order for 3 Gilbert Heights. The Abutters had requested that the Commissioner take these actions by filing a request for enforcement under G.L. c. 40A, §7. Pursuant to the ZBA Decision, inter alia, the building permit for 100 Ocean was revoked, and the 100 Ocean structure was ordered to be razed.

[Note 2] By denying the 2014 Motion in the 2015 Decision, the 2002 Motion thus became moot.

[Note 3] Frederick Schmid was replaced by his wife Judith Schmid ("Judith"), who, as discussed below, had received title to their property shortly after this case was commenced in 1994.

Kingsbury was replaced by Adam and Ian Kingsbury. As discussed below, Kingsbury and his wife, Marilyn J. Wexler, transferred their property to Adam B. Kingsbury and Ian S. Kingsbury, as trustees of the Kingsbury Family Irrevocable Trust, in 2012.

The Abutters' motion did not specify who was replacing Greeley in this case. As noted below, Greeley transferred her property to herself as trustee of the Cheshire Hill House Realty Trust in 2000. In 2006, Greeley passed away. A 2008 affidavit indicates that her property passed to Frederick G. Greeley, Jr. and Patricia G. Lausier, as trustees of the Jean F. Greeley 1995 Family Trust.

[Note 4] On September 19, 2016, Plaintiff filed an agreed-to Motion to Continue the trial because of a Protective Order issued by a judge of the Worcester Housing Court in connection with Plaintiff's counsel's appearance for a trial before that court. The following day, Plaintiff also filed a Motion to Dismiss for lack of jurisdiction. Both motions were denied the same day—the latter because the time for filing dispositive motions had already passed. The trial was rescheduled for September 30, 2016 and October 3, 2016. On September 26, 2016, Plaintiff sought an extension of the new trial date due to a missing witness. On September 26, 2016, following a telephone conference, this court declined to postpone the September 30, 2016 trial date (and site view), but postponed the second day of trial to October 5, 2016.

[Note 5] The Building Permit is defined in the Decision as building permit No. 6714, which was granted to Plaintiff on May 26, 1993 by the Commissioner for the construction of the presently-existing structure on 100 Ocean (the "House").