John and Susan Zarba are due in Land Court Thursday and Friday to face off against the town of Oak Bluffs in a complex and heated property line dispute. At stake is the their guesthouse.
Should they lose, the town could demand movement or demolition of the two-story building. Meanwhile, another battle over the guesthouse pressed for years by Keith and Lori Murphy, neighbors whose home sits next to the Zarbas’ guesthouse, could head to trial or fizzle. Superior Court Judge Cornelius Moriarty is currently weighing whether to allow a motion put forth by the Zarbas to strike down a zoning board appeal by the Murphys. Should he deny the motion, the Zarbas and the Murphys will head to trial over the validity of the parking space beside the Zarbas’ guesthouse.
The Murphys and the Zarbas say they’ve spent mightily in the legal battle over the guesthouse. The couples also say they’d been friendly with each other since they bought neighboring homes from developer Jack Reagan back in 2005, but their relationship soured once the Zarbas began to erect their guesthouse.
The Murphys told The Times the Zarbas did not ask them whether they wanted a guesthouse next to their property, nor did the Zarbas even give them notice they were building one. The Zarbas maintain no notice was necessary. A building permit was issued to the Zarbas on Oct. 13, 2015. A few days later, the Murphys made a complaint to former Oak Bluffs building inspector Mark Barbadoro, court and town documents show. They claimed the Zarbas made false representations about their residency status in order to obtain the permit. About a week later, the Murphys demanded the building inspector halt work at the guesthouse site and revoke the permit. Barbadoro denied the demand. Soon after, the Murphys appealed his decision to the Oak Bluffs zoning board of appeals (ZBA).
The Murphys put the question of residency front and center in their appeal to the ZBA. They said the Zarbas owned property in West Tisbury and lived there, and therefore violated a zoning bylaw which stipulates a property owner must live at a given address for five years before they can build a guesthouse there.
“We fully intend to move into the guest home as soon as it is constructed and we obtain a certificate of occupancy from the town of Oak Bluffs,” the Zarbas wrote to the zoning board. ”We rely on the West Tisbury home and the main house in Oak Bluffs rental income to allow us the opportunity to live on this Island.”
The Zarbas pointed out the town bylaw allows for seasonal occupation, and unlike traditional occupation, the bylaw does not define what span of time constitutes seasonal occupation of a dwelling.
Ahead of the zoning board meeting, the Murphys hired Edgartown attorney Martin Tomassian to file an emergency injunction to stop the guesthouse construction. In New Bedford Superior Court, Tomassian faced off against Oak Bluffs attorney George Davis, who for a period represented the Zarbas. The injunction was denied.
The zoning board went on to vote 5-0 to support the building inspector’s decision not to halt work or pull the permit. The Murphys had 20 days to appeal. They didn’t. That proved a flaw that would haunt many legal actions they took afterward, essentially giving them no standing for future appeals.
“I wish and the Murphys wish that they had appealed that building permit,” Richard Serkey, a Plymouth attorney who came to represent the Murphys, told The Times.
By 2016, the Murphys and the Zarbas began to have trespassing squabbles, which however bitter never amounted to much. In October 2016, the Murphys complained to the building inspector of a new set of alleged zoning violations regarding what was then a built guesthouse. The building inspector did not agree with the two of their three arguments (parking and open-space zoning violations). They appealed his opinion to the ZBA. In February 2017, the zoning board voted not to hear the Murphys appeal “based on lack of jurisdiction,” i.e. a lack of standing.
A sea change swept Barbadoro in autumn 2016. And while he did not capitulate to the Murphys zoning demands directly, after receiving a letter from Serkey dated Oct. 13 of that year, he found fault with the Zarbas guesthouse. Serkey’s letter referred to a survey Oak Bluffs had commissioned over the past summer. Based on the survey, Serkey alleged the Zarbas guesthouse was “17.9 feet from property of the town of Oak Bluffs” (the cemetery). Serkey noted the minimum setback was 20 feet.
Survey invoices indicate Oak Bluffs taxpayers paid $13,755 to Vineyard Land Surveying and Engineering for the work. The Zarbas have maintained that unlike the survey they relied on to site their guesthouse, which is recorded in the Dukes County Registry of Deeds, Oak Bluffs’ survey is not recorded there, and can’t be because it isn’t approved by the Oak Bluffs planning board and certified by the clerk. Nevertheless, the Zarbas said Serkey attached the town’s survey to their deed and in doing so, put a cloud on the title to their property.
Serkey admitted he attached the plan and reasoned it was a buyer beware.
“I thought long and hard about whether I could or should record it,” he said. “I wanted to make sure that any buyer of the Zarba property in particular was on notice of this.”
Based upon information provided by the town survey, Barbadoro sent the Zarbas a formal notice of zoning violations on Nov. 1, 2016. The notice indicated their guesthouse was 17.9 feet from town land, as Serkey had argued, or ”two and one-tenth feet too close.”
Barbadoro threatened fines that amounted to $300 per day and loss of the temporary certificate of occupancy for the guesthouse if the zoning violation wasn’t remedied by Feb. 1, 2017. His notice came on the coattails of another zoning violation — a noncompliant parking space. This too came with a $300 per day threat, but that was later dropped, and to date, the Zarbas have not been fined for zoning violations of any sort by the town.
The Zarbas made their own appeals to the ZBA. The ZBA upheld Barbadoro’s orders and the Zarbas appealed those decisions in Land Court. On April 4, 2017, town counsel Michael Goldsmith and the Zarbas came before Land Court Judge Gordon Piper in Boston for a summary judgment hearing. Piper dismissed the parking issue on the contingency the Zarbas would construct the parking space beside their guesthouse from materials consistent with town bylaw. Unable to make headway on the setback issue, Judge Piper slated the issue for trial, set to take place Nov. 29 and 30, but has since left the case upon promotion to head of the Land Court.
Susan Zarba told The Times she feels her family was singled out for a parking space violation, and said there is no evidence anybody in Oak Bluffs had ever been cited for such a violation in the past. As proof of this she provided a legal response from Oak Bluffs, which states “The municipal parties have no documents in their possession concerning the enforcement of town zoning bylaw section 126.96.36.199.”
The Murphys continued to press appeals in superior court. These were eventually consolidated and came before Judge Maynard Kirpalani, who dismissed two-thirds of their complaints. However, he left the possibility of trial requests to enforce two zoning items — parking and open space.
On Oct 16, 2018, the Murphys and Zarbas went before Judge Cornelius Moriarty in superior court on the Vineyard, and his decision is pending.
As things stand now, the Zarbas say the Murphys have abused their power to sue despite a long track record of defeats, and are fed up and angry about the prospect of enduring more litigation. The Murphys are demoralized by the view from their house, and say their neighbors, the Zarbas, have used misleading information to protect themselves.