Paul M. Kelley and Susan K. Kelley filed this action on September 12, 2016. They filed an Amended Complaint in this action on October 24, 2016.
The Amended Complaint contains two counts. Count I presents a timely appeal under G.L. c. 40A, § 17, of a decision of defendant Somerville Zoning Board of Appeals in Case # ZBA 2016-04, filed with the Somerville City Clerk on August 22, 2016 (the "ZBA's Decision"). The ZBA's Decision granted to defendant Somerville Historical Society, d/b/a Somerville Museum, a special permit under § 4.4.1 of the Somerville Zoning Ordinance, allowing the Museum to alter and expand the Museum's legally nonconforming structure at 1 Westwood Road in Somerville. Count II alleges that the Kelleys, who own an abutting property at 3 Westwood Road, acquired by adverse possession a rectangular area on the southwest corner of the Museum's property, an area over which the Kelleys extended a bluestone driveway that lies at the southeast corner of their property. The Kelleys also alleged in the alternative that they acquired an easement by prescription over the Museum's half of the driveway.
The Museum answered the Amended Complaint on November 4, 2016. On November 23, 2016, the Museum filed an Amended Answer, and included a counterclaim against the Kelleys for trespass. The Kelleys did not reply to the Museum's counterclaim; that said, following the filing of its counterclaim, the Museum made no further efforts to litigate the issue of trespass (other than by opposing the Kelleys' claims in Count II of their Amended Complaint). The Museum did not move for summary judgment on the issue of trespass; the Museum did not list trespass as an issue for trial; and the Museum provided no proof at trial that the Kelleys have trespassed on the Museum's property. The Court thus deems the Museum's counterclaim for trespass as WAIVED.
In the spring of 2017, the parties filed motions and cross-motions for summary judgment. Those motions resolved some of issues in the case chiefly, that the Kelleys could not prove that they had acquired any title to any part of the Museum property by adverse possession but genuine disputes of material fact prevented the Court from resolving the Kelleys' remaining claims, one way or the other, on the merits. The Court thus ordered the parties to proceed to trial.
The parties appeared for trial on January 22, 23, 24 and 25, 2018. The Court took a view of the Museum, its property, the Kelleys' abutting property, and the surrounding neighborhood on the third day of trial. The parties submitted post-trial briefs in February 2018. They then waived the opportunity to present to the Court closing arguments. In accordance with this Court's Findings of Fact and Rulings of Law 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 defendants Orsola S. Fontano, Richard Rossetti, Danielle Evans, Elane Servino, Josh Safdie, and Anne Brockelman, in their capacity as members of the Somerville Zoning Board of Appeals (the "ZBA"); and the Somerville Historical Society, d/b/a Somerville Museum, and AGAINST plaintiffs Paul M. Kelley and Susan K. Kelley, on Count I of the Kelleys' Amended Complaint.
B. The Kelleys' claims in Count I of their Amended Complaint are DISMISSED, with prejudice.
C. The decision of the ZBA in Case # ZBA 2016-04, filed with the Somerville City Clerk on August 22, 2016 (the "ZBA's Decision"), granting to the Somerville Historical Society a special permit under § 4.4.1 of the Somerville Zoning Ordinance to alter and expand the Society's building at 1 Westwood Road in Somerville, was not unreasonable, capricious, or arbitrary; and was not based on legally untenable grounds.
D. The ZBA's Decision is AFFIRMED.
E. Judgment is hereby granted in FAVOR of defendant Somerville Historical Society, and AGAINST plaintiffs Paul M. Kelley and Susan K. Kelley, on Count II of the Kelleys' Amended Complaint.
F. The Kelleys' claims in Count II of their Amended Complaint are DISMISSED, with prejudice.
G. Judgment is hereby granted in FAVOR of counterclaim-defendants Paul M. Kelley and Susan K. Kelley, and AGAINTS counterclaim-plaintiff Somerville Historical Society, on the Society's Counterclaim.
H. The Somerville Historical Society's Counterclaim is DISMISSED, with prejudice.
SO ORDERED.
PAUL M. KELLEY and SUSAN K. KELLEY v. ORSOLA S. FONTANO, RICHARD ROSSETTI, DANIELLE EVANS, ELANE SERVINO, JOSH SAFDIE, and ANNE BROCKELMAN, in their capacities as members of the SOMERVILLE ZONING BOARD OF APPEALS, and SOMERVILLE HISTORICAL SOCIETY, d/b/a Somerville Museum.