Plaintiff Paul Gallagher ("Mr. Gallagher") commenced this G.L. c. 40A appeal with the filing of a complaint on October 11, 2018. The defendants are the members of the Town of Nahant ("the Town") Zoning Board of Appeals ("the Board") - Jocelyn Campbell, Paul Morse, Peter Barba, Greg Keane, David Walsh, Max Kasper and Donna Lee Leonardo - and Deirdre Pocase and Matthew Padulo as the owners of 2 Linda Lane, Nahant ("the Owners" and "the Property" respectively). Mr. Gallagher seeks to annul the September 5, 2018 decision ("the Decision") of the Board upholding the Town's Building Inspector's ("the Building Inspector") July 9, 2018 denial of Mr. Gallagher's enforcement request with respect to (1) the grading and fill at the Property, which Mr. Gallagher asserts violate the Town's Zoning Bylaw ("ZBL"), §5.02(G); (2) the landscaping on the Property at the intersection of Wilson Road and Wilson Avenue, which Mr. Gallagher asserts violates the intersection visibility requirements of ZBL §5.02(E); and (3) the stone retaining walls on the Property, which Mr. Gallagher asserts violate the requirements for retaining walls set forth in ZBL §5.02(J).
On February 7, 2020, the Owners filed their Motion For Summary Judgment Of Defendants Deirdre Pocase And Matthew Padulo ("the Motion") in which they argued that they were entitled to the entry of summary judgment in their favor because, on the undisputed facts, (1) Mr. Gallagher's failure to appeal from the denial of his first request for enforcement of the ZBL precluded him from pursuing the appeal from the denial of his second request for enforcement at issue here; (2) Mr. Gallagher does not have standing to pursue the claims that he asserts; and (3), on the merits, the Owners' construction is in full compliance with the ZBL. In a memorandum of decision and order of even date, the court concluded that it, as was the Board before it, was without jurisdiction to address Mr. Gallagher's claims regarding grading and fill or intersection visibility, that Mr. Gallagher had standing to assert his claims regarding the retaining walls on the Property and that, based on the undisputed facts in the record, summary judgment should issue in favor of the plaintiff pursuant to Mass. R. Civ. P. 56(c) because the failure to obtain a building permit for the construction of the retaining walls was a clear violation of the ZBL, requiring that the Board's decision upholding the Building Inspector's determination of no zoning violation be annulled.
In accordance with the court's memorandum of decision and order, it is hereby
ORDERED and AJUDGED that the Decision of the Board is ANNULLED.
It is further
ORDERED and ADJUDGED that this matter is remanded to the Board with instructions to reverse the Building Inspector's denial of Mr. Gallagher's request for enforcement of ZBL §5.02(J).
The Board may proceed without giving further public notice, but the action must be taken at a regular open meeting. It is further
ORDERED that the Board must issue and record this supplemental decision with the Town Clerk no later than August 31, 2020.
And it is further
ORDERED that this Judgment is a full adjudication of the parties' claims in this case, and all prayers for relief by any party to this action that are not granted in the preceding paragraphs are denied.
SO ORDERED.
PAUL GALLAGHER vs. TOWN OF NAHANT ZONING BOARD OF APPEALS, by and through its members JOCELYN CAMPBELL, PAUL MORSE, PETER BARBA, GREG KEANE, DAVID WALSH, MAX KASPER and DONNA LEE LEONARDO, and DEIRDRE POCASE and MATTHEW PADULO, as the owners of 2 Linda Lane, Town of Nahant