Updated November 21
John and Susan Zarba believe they are the target of a coordinated attack by the town and the water district over property rights — their battle with the town leaders so contentious that police were called to Oak Bluffs town hall Monday to restore peace when Susan Zarba sought public records.
The dispute dates back years, and is currently focused on the legality of a guesthouse built on the Zarbas’ property.
The couple claims the town has changed its assessment and tinkered with its details.
Town leaders say the assessing issues did happen, but were quickly corrected. Town administrator Robert Whritenour described the Zarbas’ assessor issues as “quite laughable.” Whritenour characterized Susan Zarba as “a real estate sharpie,” and vowed, “We’re not going to give up. We have to protect and preserve the town’s fiduciary responsibility to the right of access to that land.”
The dispute is headed for a Land Court showdown next week, Nov. 29 and 30, at Dukes County Courthouse, but it’s been years in the making, and involves a two-story guesthouse built between 2015 and 2016.
The guesthouse, which the couple lives in, was built about 250 feet from town hall. The town says it is road called Davis Avenue, but the Zarbas dispute that it’s a road at all and describe it as a driveway easement or a way. During and after the building process, the Zarbas found themselves in lawsuits with neighbors, and then the town. In addition, the town threatened fines of $300, and then for a time $600, per day, based on alleged zoning violations, and has refused to grant a full occupancy permit.
The legal dispute with the town is just one of two currently involving the property. The Zarbas came to terms with a third neighboring property owner last year after an intense Land Court battle over right-of-way issues. That opponent was a trust half belonging to Fall River District Court Magistrate John O’Neil and half to a trustee named John Feitelberg. The Zarbas remain in legal combat with next-door neighbors Keith and Lori Murphy via that couple’s trust, and with the town of Oak Bluffs.
At issue before the Land Court is a zoning board decision that found the Zarbas’ guesthouse was in violation of parking and setback requirements. On the strength of a partial survey that town counsel commissioned for Oak Bluffs (after a building permit was issued to the Zarbas), the town claims a past survey used to site the guesthouse was erroneous. The new survey, conducted by Vineyard Land Surveying and Engineering, proves a setback violation, the town claims. The Zarbas contend the survey they relied on is accurate. They located their guesthouse based on a survey by Sourati Engineering. The Sourati survey was done 13 years ago to facilitate a three-lot development for local developer Jack Reagan. It constitutes the survey of record, Susan Zarba said.
Adding to the intrigue is Oak Bluffs selectman Brian Packish, a member of the planning board in 2015. Packish poured the foundation for the guesthouse, and requested the site be “pinned,” a type of mini secondary survey that places stakes precisely where the foundation is to be situated. Packish has recused himself from the legal process, and has declined to comment on the case other than to verify he was hired for the foundation.
The Land Court case is in essence a battle of surveyors. The area in question is the edge of the Oak Grove Cemetery across from the guesthouse, real estate the Zarbas claim Oak Bluffs doesn’t even have a deed for. The town has not yet responded to a request for a copy of the cemetery deed.
The Zarbas told The Times they believe Oak Bluffs has aligned itself with the interests of other homeowners on the contested way, most notably O’Neil, and has leveraged the suits brought on by these homeowners in an attempt to prove “rights and ownership interest” in the contested dirt way, which divides the Zarbas’ property from the Oak Grove Cemetery.
John O’Neil could not be reached for comment. A court official said he was out on medical leave, and calls to his home were not returned. “That’s nothing I’m really prepared to comment on,” Feitelberg, his fellow trustee in the property, said.
Susan Zarba, who will represent herself, further claims that the town has not only harmed her family, but continues to spend “obscene amounts of taxpayers’ dollars” in the survey and legal process.
“How in the world are these people in this position?” former two-term Oak Bluffs selectman Kerry Scott asked, in an interview with The Times. “They have a building permit. They have signoffs for every inspection. How could they be denied water and an occupancy permit?”
Jack Collins, attorney for the Oak Bluffs Water District, a completely separate municipal entity from the town of Oak Bluffs, told The Times the Zarbas did not get their water hooked up because an injunction was in place. The injunction, which was placed by Land Court Judge Gordon Piper, was meant to allow John O’Neil and his family free access along the contested dirt way to reach their property while litigation was ongoing with the the Zarbas and other abutters.
It wasn’t intended to “limit the ability of defendants, or of any third party (including any water company, underground excavator, or other contractor or company, whether or not engaged by or acting on behalf of the defendants),” Judge Piper wrote at one point in the case.
In an electronic letter sent to the Zarbas, Collins appears to tell them they can have water if they sign a release.
“I will ask you and your husband to sign a release and indemnification agreement, promising not to sue and to hold harmless the District or anyone involved — including the commissioners, superintendent, and even myself — if such water service is provided,” Collins wrote. “To the extent that you have made any complaints or initiated any action, you would dismiss the same, withdrawing any allegations. If this makes sense to you, I am prepared to proceed right away, with the hope of providing water to you next week.”
The town wasn’t looking to get pulled into the Land Court dispute, Ron Rappaport, the town’s longtime counsel, said. “The town was brought into litigation by the Land Court involving an acrimonious [dispute] among various neighbors regarding their rights to use an old road abutting the town cemetery,” he said. “To respond, the town had to undertake research to assess its property rights in the road. And when that work was complete, the building inspector, in our view, was required to take actions to address the various zoning issues resulting from the property-line determinations. Two of the neighbors, including the Zarbas, have exercised their rights to challenge the building inspector’s rulings in two different courts, as is their right.”
Mark Barbadoro, who is now the building commissioner of Fitchburg, told the Zarbas in a letter dated Nov. 1, 2016, the new survey places their guesthouse “two and one-tenth feet too close” to the lot line of the cemetery.
“If you can’t rely on your recorded deed and your survey plan of record from the Registry of Deeds,” John Zarba asked, “how can any homeowner or builder be sure they won’t end up in the nightmare we have dealt with daily for three years now?”
He said he believes the money and effort Oak Bluffs is spending on the land fight is “unprecedented.” Records obtained by The Times show the town has spent $13,755 with Vineyard Land Surveying and Engineering, and tens of thousands of dollars on town counsel invoices.
“It is common for subdivision plans as old as the Plan of the Highlands [to have] inaccuracies,” Barbadoro wrote in an email to The Times. He suggested the Zarbas seek a special permit.
The Zarbas claim they never needed a special permit or variance to erect their guesthouse, and don’t qualify for one. The said they deem the suggestion of it as a trap to open up another litigation front.
An edge of the Highlands Subdivision, an old, poorly defined housing plan from the days of Cottage City, runs near the edge of the cemetery, further exacerbating the difficulty of surveying in the area.
“There were multiple plans of the Highlands Subdivision recorded,” Dukes County Registrar of Deeds Paulo DeOliveira said.
The “whole area is a mapping disaster,” Oak Bluffs principal assessor David Bailey said.
Neither George Sourati nor Reid Silva, who own the two survey firms at play, would comment on the situation.
The Zarbas’ claim Michael Goldsmith, the town’s lead attorney on the case, has selected the most advantageous of the many maps of the Highlands Subdivision to help bolster the town’s survey. Citing ongoing litigation, Goldsmith declined to comment on any aspect of the case.
Judge Gordon Piper was set to preside over the case next week, but was promoted to chief justice of the Land Court and withdrew. Judge Robert Foster will now hear the case.
Updated to include links to documents and surveys and to include a new invoice calculation for town survey work.