In these consolidated cases, plaintiffs Douglas C. Schluter and Carolyn I. Schluter ("Plaintiffs") seek review pursuant to G.L. c. 40A, § 17, of decisions of the Zoning Board of Appeals of Marblehead ("Board") whose Members are defendants, as well as a declaratory judgment pursuant to G.L. c. 240, § 14A.
The parties have filed an Agreement for Judgment, of which they seek approval pursuant to Land Court Rule 10. Upon consideration of the Agreement for Judgment, and after due proceedings, it is
ORDERED that the parties' Agreement for Judgment is APPROVED pursuant to Land Court Rule 10. It is further
ORDERED, ADJUDGED, and DECLARED pursuant to G.L. c. 240, § 14A, that the special permit, originally issued on August 7, 2006 (the "Special Permit") regarding the Plaintiffs' property at 63 Beach Street, Marblehead, Massachusetts (the "Locus") did not lapse, was not revoked or rescinded, and remains in full force and effect; albeit subject to the terms and conditions of the Agreement for Judgment approved this day. It is further
ORDERED and ADJUDGED that the challenged decisions of the Board, filed with the Marblehead Town Clerk on August 8, 2017 and November 22, 2017 respectively (the "Decisions"), are ANNULLED. These cases are REMANDED to the Board for a full and fair new public hearing, to be held only after all notices required by law have been duly given to all the requisite parties. [Note 1] At this hearing the Board shall consider anew the applications that originally resulted in the challenged decisions, and issue new decisions in light of this Judgment and the Agreement for Judgment. It is further
ORDERED and ADJUDGED that the public hearing directed by this Judgment shall be opened without delay, but only after full and proper notice of the hearing has been published, posted, and served, in accordance with governing law, including G.L. c. 40A, § 11 and G.L. c. 30A § 18 et seq. Notice shall be served on all parties as legally required, including on the Plaintiffs and any abutters to the locus, and other persons, entities, and officials entitled to statutory notice. It is further
ORDERED and ADJUDGED that this court does not retain jurisdiction over any aspect of this matter and this Judgment of Remand concludes this action. Notwithstanding the preceding sentence, the terms of the Court's May 18, 2018 Preliminary Injunction shall remain in full force and effect until the Completion Date (as that term is defined in the Agreement for Judgment), or the until the issuance of a Certificate of Occupancy for all or a portion of the principal structure on the Locus, whichever first occurs. It is further
ORDERED and ADJUDGED that any decision issued by the Board following further proceedings on remand pursuant to this Judgment may be appealed by any person aggrieved by the decision, pursuant to G.L. c. 40, § 17, in this or any other court of competent jurisdiction. Any appeal must be taken in accordance with the procedures, and within the time, required by law. It is further
ORDERED and ADJUDGED that no costs, fees, damages, or any other amounts or relief are awarded to any party.
SO ORDERED.
DOUGLAS C. SCHLUTER and CAROLYN I. SCHLUTER, Plaintiffs v. BILL BARLOW, CHRISTOPHER CASEY, DEAN DRACHMAN, BRUCE KRASKER, ALAN LIPKIND, WILLIAM MORIARTY, JIM RUDOLPH, and DAVID TUBRIDY, As They Are Members Of The MARBLEHEAD ZONING BOARD OF APPEALS; and TOWN OF MARBLEHEAD; Defendants