In this action, former plaintiff John Twohig, as Trustee of the Cliffs Realty Trust ("CRT"), appealed a decision of the Manchester-By-The Sea Board of Appeals. In that decision, the Board affirmed a refusal of the Town's building inspector to enforce the Town's Zoning By-laws against defendant Cathleen E. Kavanaugh, as Trustee of the Smith's Point Realty Trust, as to a 100-foot-tall concrete tower on Trustee Kavanaugh's property. CRT alleged that renovations Trustee Kavanaugh made to the tower in 2014 required either a variance or a special permit, and had created an illegal second dwelling on the property. CRT also claimed that Trustee Kavanaugh had violated By-law requirements pertaining to impervious surfaces, altering topography and removing earth. CRT also contended that Trustee Kavanaugh had built a pergola without obtaining a building permit.
In May 2016, with the assent of the defendants, the Court allowed Joseph M. Lazarek, the new trustee of CRT, to substitute for Mr. Twohig as plaintiff in this action.
In October 2016, CRT did not include in the parties' Joint Pretrial Memorandum the claims described in the last two sentences of the first paragraph of this Judgment, and thus CRT is deemed to have waived those claims.
The parties filed cross-motions for summary judgment, in both this case and a related case involving the same parties and the same tower (Case No. 17 MISC 000144). The Court held a hearing on the parties' cross-motions on December 19, 2017. In accordance with this Court's Decision this same date, in light of the undisputed facts and the arguments of counsel, this Court
ORDERS, ADJUDGES and DECREES that:
A. Judgment is hereby entered in FAVOR of defendants Michael Sullivan, Bridget Murray, James Diedrich, Andrew Cocker, and Gary Gilbert, as Members of the Manchester-By-The Sea Board of Appeals, and Cathleen E. Kavanaugh, as Trustee of the Smith's Point Realty Trust, LLC, and AGAINST Joseph M. Lazarek, as Trustee of the Cliffs Realty Trust.
B. Trustee Lazarek's claims are DISMISSED, with prejudice.
C. The Decision of the Board of Appeals of Manchester-By-The-Sea filed with the Town Clerk on November 30, 2015, concerning Trustee Kavanaugh's property at 12 Smith's Point Road in Manchester-By-The-Sea (the "Decision") was not unreasonable, capricious, or arbitrary; and was not based on any legally untenable grounds.
D. The Decision Board of Appeals refusing to overturn a refusal of Manchester-By- The Sea's building inspector to enforce the Zoning By-law is AFFIRMED.
SO ORDERED.
JOSEPH M. LAZAREK, as Trustee of the Cliffs Realty Trust v. MICHAEL SULLIVAN, BRIDGET MURRAY, JAMES DIEDRICH, ANDREW COCKER, and GARY GILBERT, as Members of the Manchester-By-The-Sea Board of Appeals, and CATHLEEN E. KAVANAUGH, as Trustee of the Smith's Point Realty Trust.