Oak Bluffs garage will get further review
By Susan Vaughn - August 16, 2007
The fate of the long-delayed and much litigated three-story structure, built by Joseph G. Moujabber in Oak Bluffs' North Bluff district in late 2003, will be further delayed, based on a superior court judge's ruling on an appeal by Mr. Moujabber.
"The decision is going to be with us a while longer unless the town appeals," town counsel Ronald Rappaport told the Oak Bluffs selectmen Tuesday. The appeal period expires Sept. 6, he said, but he limited any discussion on an appeal or other legal issues related to the case to an executive session, which the selectmen have scheduled for next Tuesday at 4 pm.
Judge Richard T. Moses' summary judgment, released last week, annulled a demolition order by the town building inspector that was upheld by the Oak Bluffs zoning board of appeals in April 2005. The judge also vacated a decision of the Copeland plan district review board, which denied a certificate of appropriateness to Mr. Moujabber, also in April 2005, and he ordered the board to conduct a new hearing and more detailed review of the application.
This three-story building on Seaview Avenue Extension in Oak Bluffs will remain standing at least until it gets more reviews and new decisions ordered by a superior court judge. Photo by Ralph Stewart
If there are no more appeals, Mr. Rappaport said, Mr. Moujabber's application will go back to the Copeland board "to flush out the language with a more lengthy decision and more dialogue, so the applicant is clear what exactly the Copeland board desires." He said the judge "would like to see more give and take and a dialogue on the most recent addition."
Mr. Rappaport said part of the decision hinged around the Copeland board's denial of the certificate because the building did not fit in with the neighborhood's architecture. "North Bluff doesn't have a tradition of Victorian architecture," he said, noting the Copeland board may need some technical assistance on an architectural review. The judge wants more reasons for the board's denial, he said.
In his ruling, Judge Moses also dismissed a counterclaim by property abutters, Albert J. Read and Belleruth K. Napastek. Mr. Moujabber's appeal was against the zoning board of appeals, the abutters, and the Copeland district.
The issues over the garage first arose in November 2003, after Mr. Moujabber, an Oak Bluffs businessman, applied for a building permit to replace an existing, single-story, 240-square-foot garage. The replacement he erected stands three stories tall, and includes sliding glass doors, balconies, and a roof deck.
Neighbors, outraged by the size of the structure, argued that the garage was larger than the project originally applied for in the building permit, and that Richard Mavro, then Oak Bluffs building inspector, did not have the authority to issue a building permit in the first place.
Following a written opinion from Oak Bluffs town counsel, in May 2004, Mr. Mavro revoked the building permit. Mr. Moujabber appealed the decision to the ZBA. Two months later the ZBA voted to uphold the revocation. Mr. Moujabber appealed that decision.
That issue was settled in an agreement entered in Superior Court in February 2006, when Mr. Moujabber accepted the building inspector's decision to revoke his building permit.
On Nov. 16, 2004, the Copeland district review board denied a request from Mr. Moujabber for a certificate of appropriateness to move the massive garage about 10 feet and attach it to his house next door. Two weeks later Mr. Mavro ordered the garage demolished.
Mr. Moujabber appealed both the Copeland review board's decision and the demolition order. The recent ruling relates to that appeal.
In the recent decision on the demolition order, Judge Moses found that Mr. Moujabber "has acted in good faith in pursuing his appeals and attempting to present acceptable modifications to the structure to the building inspector and to the Copeland Board." The decision stated, with the exception of obtaining a certificate of appropriateness, "It is unclear whether or not Moujabber would be required to obtain a special permit and/or variance in connection with his most recent building permit application seeking to attach the structure to his single-family residence or whether is he is protected by the exemption" in the zoning bylaw.
"The subjected premises may well be modifiable and legally usable for its intended use as an addition to the main structure," the judge said. However, he concluded that the building could ultimately be ordered to be removed or modified.
"The demolition remains wide open...," Mr. Rappaport said, but he said the judge wants Mr. Moujabber to be able to go back to the boards. When selectman Ronald DiOrio asked if the demolition order could be reissued, Mr. Rappaport said it could, but he wouldn't recommend it.
Selectman chairman Kerry Scott asked if Mr. Moujabber's building is a liability to the town if it remains standing. Citing a court case in Falmouth, Mr. Rappaport said it would not be a town liability, although the case is still a town issue.
Mr. Rappaport said Tuesday Mr. Moujabber also would need approvals for his buildings from the ZBA and the town's historic commission in addition to the Copeland board.
Much of Mr. Moses' decision focused on the Copeland plan board's denial of Mr. Moujabber's certificate of appropriateness. The judge said Mr. Moujabber could not indirectly seek to challenge the Copeland board's action "by characterizing the building inspector's refusal to grant a building permit as a zoning action since the building inspector was not acting as an administrative officer" under the general laws
During the course of Mr. Moujabber's permit applications, the Copeland district was designated a district of critical planning concern by the Martha's Vineyard Commission Act. Judge Moses agreed that the Copeland district is an area of "regional importance and that there exists problems of uncontrolled or inappropriate development within the district that affect areas outside the district...." Therefore, he denied Mr. Moujabber's appeal to the modification-permit decision, and affirmed the ZBA decision of May 2005.
He said the ZBA "correctly ruled that the Copeland board had jurisdiction to review the subject modification permit and that the ZBA lacked authority to review the Copeland board's denial of the certificate of appropriateness for the modification permit."
The abutters' claim said Mr. Moujabber's structure violates the Oak Bluffs zoning bylaw and destroys the aesthetics of the neighborhood, blocked their light and views, and interfered with their reasonable use and enjoyment of their properties. The interveners' motion did not raise the issue of nuisance.
"It is clear that abutters do not have a private cause of action for direct enforcement of zoning regulations," Judge Moses ruled.
