Pivotal Land Court trial remains unfinished

Fate of Oak Bluffs guesthouse in limbo until Boston-based court can return to Edgartown.

Left to right, Michael Goldsmith, William Austin, Susan Zarba, and Judge Robert Foster cluster to analyze evidence. — Rich Saltzberg

Updated Dec. 4

A complex border trial between the town of Oak Bluffs and John and Susan Zarba featured two full days of testimony, but finished late Friday no closer to a resolution to a battle that’s lasted several years. Time ran out before the case concluded, and a new date for Land Court to reconvene in Dukes County courthouse to finish has tentatively been set for Dec. 21.

At issue is the legality of a guesthouse built on the Zarbas’ property. The Zarbas say they were granted a building permit and sited their guesthouse lawfully, while the town says a faulty survey informed where the guesthouse was situated, and that it doesn’t meet setback requirements as a result.

Joined by the Zarbas, town counsel Michael Goldsmith, and surveyors Charles Gilstad and William Austin, Land Court Judge Robert Foster took a property stroll in Oak Bluffs before the trial got underway Thursday. The guesthouse of the Zarbas, neighboring homes, a portion of Oak Grove Cemetery, and a dirt road that divides the cemetery from the guesthouse were on the itinerary. The judge also traveled down School Street to look into a swamp where a survey bound was said to be located.

In his opening statement, Goldsmith questioned why Gilstad, who created they survey the Zarbas relied on, did not appear to adhere to an old recorded plan by a surveyor named Hollis Smith. He also questioned why Gilstad appears to have established a survey point 10 feet from a monument on Pacific Avenue. Goldsmith also pointed out the Zarbas never were forced from the guesthouse.

“The Zarbas have been allowed to live in that house under temporary occupancy permits ever since it was finished,” he said. “I don’t think they’ll deny that.”

After receiving permission from the judge, Susan Zarba gave testimony where she was both witness and lawyer, and said that former Oak Bluffs building inspector Mark Barbadoro executed 13 inspections on the Zarba guesthouse and signed the permit eight times before he told the Zarbas of potential zoning violations. She said she and her husband were told of the violations after their building permit was issued. She said her family stayed in the guesthouse 21 days before a temporary occupancy permit was granted, and that it was a struggle to obtain one.

Contention arose over several surprise pieces of evidence produced by the Zarbas, evidence not agreed upon between them and town counsel, and which in some instances evidence town counsel had never seen. Judge Foster patiently told Susan Zarba several times what the protocol was for certain pieces of evidence. Goldsmith asked her about the number of trees removed to build the guesthouse. Judge Foster declared the subject irrelevant and warned Goldsmith not to manipulate his questions to generate discovery material for other cases.

John Zarba testified as to the remnants of an old steel fence that he said used to border the cemetery. He also said he made two requests of the town to stake the survey they did, but they would not comply.

Gilstad testified as to how he created the survey for what was referred to as the Reagan Plan, the three-lot division that contains the Zarbas’ property. Part of the Reagan Plan is located close by or within a vast Cottage City subdivision known as the Highland Subdivision or the Highland Plan. Zarba asked Gilstad, “How would you rate this development for doing survey work, easy or difficult?”

“Pretty difficult,” Gilstad replied.

Among other reasons for this difficulty, he said, was that the old Highland Subdivision lacks many original monuments from which to plot a survey.

Several references were made to the Amber Wormly deed and a subsequent commissioner’s deed executed by an attorney named Jan Whiting — a deed Zarba argued was flawed. Another notable deed in Gilstad’s testimony was the deed of Rufus Davis. Goldsmith had an enlarged posterboard version of the deed on hand for reference, one of many exhibits and “chalks” ready for use by both sides. In questioning Gilstad, Zarba spent time reviewing Gilstad’s choice to plot parts of his survey on the old cemetery fence John Zarba had referred to. Gilstad said the section relevant to his work was a 500-foot straight length of “heavy metal fence” along the cemetery border.

Sparks flew over the evidentiary value of 2005 Oak Bluffs planning board minutes relative to the formation of the neighborhood where the Zarba property is located. Susan Zarba pointed out Goldsmith supported planning board action, especially parcel configurations that the board approved. Goldsmith disagreed, and said he merely advised the planning board and that they made all the decisions. Zarba said she had previously tried to have Goldsmith removed from the case on the grounds he was a witness. Judge Foster made it clear there was no way Goldsmith would be pulled from the case over the issues she raised.

Under cross-examination from Goldsmith, Gilstad was pressed about his use of deeds. “For whatever reason, as you prepared your survey, you did not have any deeds to work with that describe the Oak Bluffs cemetery?” Goldsmith asked.

Gilstad acknowledged that was true.

On Friday, Doug Dowling, an engineer and surveyor brought in by the Zarbas as an expert witness, took the stand and explained at length the difficulties of surveying in the area of Oak Bluffs where the two surveys in question focus. He broke down how Gilstad executed his survey. He supported Gilstad’s work as the best possible work that could have been done.

Later in the morning, Martin Loria, a real estate attorney and title examiner, took the stand for the town of Oak Bluffs as an expert witness. Loria gave a detailed description of the deed chain that led up to the Reagan Plan, and then broke down in detail deeds from parts of the cemetery and deeds from the surrounding area. Based on information found in deeds and a 20th century survey commissioned by the town of Oak Bluffs, he supported Bill Austin’s survey.

During cross-examination by Susan Zarba, Loria was unable to produce evidence Oak Bluffs held title to certain cemetery land.

“Can you show a deed that says these lots that we’re talking about that abut my property were conveyed to the town of Oak Bluffs or whatever it was called at the time?” Zarba asked.

“There are a series of deeds which the examiner found that conveyed in here,” he responded. “I don’t have those deeds.”

“So can you produce those deeds?”
“No, not now.”

Austin testified as to how he created his survey, and like Gilstad, noted the survey area wasn’t known for its easiness.

Under questioning by Goldsmith, Austin said part of his confidence in his survey came when he realized it “fit well” with surrounding plans and deeds.

“When you say fit well, could you just describe in a bit more detail what you mean by that, sir?” Goldsmith asked.

“You can’t make everything fit perfect, you know, from old deeds, old measurements — no surveyor gets the same exact answer when you measure between two points. So there’s always a margin, if you will, when you compare things. So you have to make a judgment. When is close close enough? How close do we have to get? And I think considering how old the Rufus Davis deed is and considering all these old plans, when I say they fit together really well, I’m saying that a foot here and a foot there is very acceptable. That’s a good fit.”

The clock ran out Friday before Susan Zarba could cross-examine Austin, therefore the trial went into recess instead of closing. Judge Foster said he would aim for a December court date on the Vineyard. Judge Foster’s sessions clerk told The Times on Tuesday that a date has been tentatively set for Friday, Dec. 21, at 9:30 am in Edgartown, subject to courtroom availability.