The town of Oak Bluffs and several Oak Bluffs officials have been named as defendants in a recently filed federal lawsuit. The nine-count suit alleges the town and officials conspired to deprive local property owners John and Susan Zarba of their “constitutional rights to both procedural and substantive due process,” as well as their “equal protection” under the law. The suit also alleges the town and the officials acted “under the color of state law to intentionally deprive the plaintiffs of their federal constitutional property rights.”
The officials named are building inspector Thomas Perry, former building inspector Mark Barbadoro, town administrator Robert Whritenour, principal assessor David Bailey, present and past members of the Zoning Board of Appeals (Joe Re, George Warren, Andrea Rogers, Kris Chvatal, and Peter Yoars), and town attorneys Michael Goldsmith and Ron Rappaport. The firm of Reynolds, Rappaport, Kaplan and Hackney is also named as a defendant.
The Zarbas and the town of Oak Bluffs have had a drawn-out battle in Land Court over a setback violation, among other zoning issues. A decision from Land Court Judge Robert Foster is pending after the two sides’ last appearance before him in February.
Susan Zarba told The Times she and her husband filed suit in federal court in part because though Land Court could rectify some issues, it cannot make them “whole” again, and cannot address federal civil rights violations. “We are now suing for remedy,” she said. Zarba said her family’s property, livelihood, and health have been adversely affected by the actions of the defendants in the suit. She pointed out that a temporary occupancy permit for a guesthouse they lived in elapsed on May 24 and that the town hasn’t reissued it. They had been living in the guesthouse and renting their main house, she said, and were forced to vacate because the permit wasn’t reissued.
“They ignored it, which means they denied it,” Zarba said of her recent application for the permit.
Town administrator Robert Whritenour refuted Zarba’s comment, and said the town has never denied the Zarbas a temporary occupancy permit, though he couldn’t produce a valid temporary occupancy permit when asked by The Times. He suggested The Times file a records request. Whritenour declined to comment on the federal suit except to say he wasn’t aware one had been filed and that the town’s insurance provider might muster lawyers in such a situation. As to land court, he said the town was “dragged” into that situation and he and other officials had bent over backwards to accommodate the Zarbas but could not appease them. He described the matter as a “minor” zoning issue that could have been resolved without litigation. He also described interactions with the Zarbas as “acerbic” and said the town maintains the right to defend itself.
Mark Barbadoro, who is presently building commissioner of Fitchburg, said, “That’s news to me,” when asked about the suit. As to the land court case, he said, “I supported that case. I think they are in violation.” In a follow-up interview after reviewing the complaint, Barbadoro stressed that he and fellow town officials acted in “good faith” to try to resolve the Zarbas’ zoning issues and that he had no motivation to harm the Zarbas. Barbadoro stood by the town’s title and survey analysis.
“I don’t think anybody but Susan [Zarba] believes that the bounds aren’t the bounds of the Highlands,” he said in reference to a 19th century subdivision central to the land court trial.
Doug Dowling, a Vineyard Haven civil engineer who testified on behalf of the Zarbas in Land Court, estimated he’s done 6,000 or 7,000 septic tank plans, a few thousand surveys of various degrees and scopes, and approximately 500 deeply involved technical surveys, but he said hasn’t encountered anything like the the Zarbas’ guesthouse imbroglio. “In fact, I’ve never seen something like this happen in my livelihood, here or anywhere else I was living. I mean this is way beyond normal procedure for a town to act like they acted. It seemed to me, once I got into this trial, that it was a conspiracy against a resident …”
Dowling went on to say he was baffled as to how the town could argue there was a zoning issue ahead of having a survey to provide relevant facts. “As far as I’m concerned, that alone I’ve never seen before,” he said. “I’ve never seen a lawyer stoop to that level before,” to offer something to the court as fact, something that “was blatantly wrong … lawyers need to be held to a higher degree than people they represent, or they aren’t professionals, as far as I’m concerned.” “They have a reputation of being one of the loosest boards I’ve ever seen,” he said of the Oak Bluffs ZBA, but behaved opposite of their alleged nature with the Zarbas.
He also said he was stumped as to why Barbadoro bypassed the survey of record and a building site plan with an engineering stamp that showed setbacks were met.
Llewellyn Rogers described the case as “messy since day one” and described it as similar to a “feud between the [Hatfields] and McCoys.” He was also unaware of the suit, but not surprised because from time-to-time the ZBA is named in suits.
Former ZBA chairman Kris Chvatal said he wasn’t aware of the suit and when informed of who the plaintiffs were, he said, “That nonsense.”
“Haven’t seen it yet,” Brian Packish, chairman of the board of selectmen said. No selectmen were named in the suit. As he has done in the past, Packish declined to comment on the land court case. As The Times reported in November 2018, Packish, who owns a construction company, poured the foundation for the Zarbas’ guesthouse, and has therefore recused himself from the Land Court case. In an email, David Bailey wrote that The Times article was
“quite literally the only thing I know about the complaint, so I would not have anything add at this point.”
Judge Leo T. Sorokin has been assigned to the case in the U.S. District Court of Massachusetts in Boston.
The Zarbas are pro se litigants.
Town counsel and the supreme court
On June 21 Michael Goldsmith, director of Reynolds, Rappaport, Kaplan and Hackney, declined to comment until he had a chance to review the federal complaint. On June 26, Goldsmith declined comment, and said an email from Ron Rappaport, a founding partner of the firm, constituted the firm’s response.
“This case has no merit,” Rappaport wrote. “That said, anyone is entitled to file a lawsuit, even those who are not represented by counsel.”
Dowling said the whole matter is having a chilling effect in the construction and surveying communities, with many wondering if it will be “the town’s posture in the future” to question surveys of record and permitted structures already erected. He also said he believes a recent U.S. Supreme Court decision will likely inform the federal case filed by the Zarbas. The decision, he said, ensures “you do not have to spend all your life’s savings going through state courts defending your constitutional rights; you can go right to federal court,” among other things.
Dowling reiterated his opinion that something was amiss with the way Oak Bluffs has gone about things with the Zarbas.
“This is more than a survey issue,” he said.