FELICIA R. PENN and PHILLIP R. DOHERTY, v. TOWN OF BARNSTABLE, HYANNIS HARBOR TOURS, INC., and MARINA ATSALIS.

Plaintiffs Felicia R. Penn and Phillip R. Doherty filed this suit on January 5, 2017 under G.L. c. 231A, § 1 and G.L. c. 240, § 14A. Their Amended Complaint contained two Counts. Count I sought a declaration that defendant Town of Barnstable violated G.L. c. 40A, § 5 when it amended its Zoning Ordinance to create the Hyannis Parking Overlay District ("HPOD"). In Count II, Penn and Doherty sought a declaration that creation of the HPOD was not a lawful exercise of municipal zoning power, because the HPOD constitutes "spot zoning."

On March 16, 2017, defendant Marina Atsalis answered the Amended Complaint. The Town answered on April 18, 2017, and defendant Hyannis Harbor Tours answered on May 16, 2017. On April 26, 2017, the Court ordered Penn and Doherty to publish a court-prepared notice of this action; a citation for publication in The Cape Cod Times issued from this Court on May 19, 2017. No parties appeared in this action in response to that notice.

Penn and Doherty moved for summary judgment in this action on December 8, 2017. On January 22, 2018, the Town opposed that motion and cross-moved for summary judgment. Penn and Doherty opposed the Town's motion on February 20, 2018. The Court heard arguments on the parties' cross-motions on February 27, 2018. In accordance with the Court's Decision this same date, in light of the undisputed facts and the arguments of counsel, the Court (a) ALLOWS Penn and Doherty's motion for summary judgment against the Town, and (b) DENIES the Town's cross-motion for summary judgment. The Court thus

ORDERS, ADJUDGES, and DECREES that:

A. Judgment is hereby entered in FAVOR of Felicia R. Penn and Phillip R. Doherty, and AGAINST the Town of Barnstable.

B. The Court hereby ANNULS the zoning amendments adopted by the Barnstable Town Council via Item No. 2016-166 at its July 21, 2016 hearing.

C. Penn and Doherty's claims against defendants Hyannis Harbor Tours, Inc., and Marina Atsalis are hereby DISMISSED with prejudice.

SO ORDERED.