In this action, plaintiffs James F. Kelley and Patricia M. Kelley ("the Kelleys"), the owners of property located at 30 Overlook Knoll Road, Mashpee, Massachusetts, and 25 Overlook Knoll Road, LLC ("the LLC"), the owner of property located at 25 Overlook Knoll Road, Mashpee, Massachusetts, appeal from the defendant Town Of Mashpee Zoning Board of Appeals' ("ZBA") March 7, 2019 decision ("the Decision") granting defendants Frederick Naddaff and Linda Naddaff ("the Naddaffs") a special permit to raze and replace an existing house at 29 Overlook Knoll Road, Mashpee, Massachusetts ("Locus").
This action was commenced with the filing of a complaint on March 25, 2019, asserting that the Decision was arbitrary and capricious (Count I) and seeking certain declaratory
adjudications (Count II). After the close of discovery on October 1, 2019, the Naddaffs filed Defendants', Frederick Naddaff And Linda Naddaff, Motion For Summary Judgment Pursuant To Mass. R. Civ. P. 56(b) ("the Motion") on October 31, 2019 and, on December 6, 2019, the Kelleys and the LLC filed Plaintiffs' Opposition And Cross Motion To Defendants' Motion For Summary Judgment Pursuant To Mass. R. Civ. P. 56(b) ("the Cross-Motion"). A hearing was held on the Motion and Cross-Motion on December 23, 2019. Thereafter, by agreement of the parties, the record was supplemented to include the complete zoning by-law for the Town ("the By-Law").
In a memorandum and order of even date, the court (Roberts, J.) has determined that, on Count I of the complaint, judgment shall enter affirming the Decision and, on Count II of the complaint, judgment shall enter declaring that that the carport at issue in this proceeding is a part of the existing building on Locus under the By-Law and is properly included in determining the dimensions of the existing structure, and that, when compared to the dimensions of the existing structure, the proposed structure does not create any new non-conformities.
In accordance with the court's memorandum and order, it is hereby
ORDERED and ADJUDGED on Count I of the complaint that the ZBA's decision is affirmed.
It is further
ORDERED, ADJUDGED and DECLARED on Count II of the complaint that the carport is a part of the existing building on Locus under the By-Law and is properly included in determining the dimensions of the existing structure, and that, when compared to the dimensions of the existing structure, the proposed structure does not create any new non-conformities.
It is further
ORDERED and ADJUDGED 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.
It is further
ORDERED that, upon payment of all required fees, this Judgment or a certified copy of it may be filed in the Registry of Deeds for Barnstable County and referenced in the margin of all relevant documents.
SO ORDERED.
JAMES F. KELLEY and PATRICIA M. KELLEY and 25 OVERLOOK KNOLL ROAD, LLC v. MASHPEE BOARD OF ZONING APPEALS, and JONATHAN D. FURBUSH, WILLIAM A. BLAISDELL, RONALD S. BONVIE, SHARON SANGELFER, SCOTT GOLDSTEIN, NORMAN J. GOULD, BRAD PITTSLEY and CAROL SHERMAN, as they are Members of the Zoning Board of Appeals, and FREDERICK NADDAFF and LINDA NADDAFF, and THE TOWN OF MASHPEE