Guesthouse the focus of a new trial

Murphy, Zarba families continue to square off over zoning issues by O.B. graveyard.


A guesthouse zoning case that has ground through the Oak Bluffs zoning board of appeals and the superior court is slated for a jury-waived trial on Oct. 8. The case amounts to a battle between neighbors over the validity of a guesthouse built in 2015. The guesthouse is about 250 from Oak Bluffs Town Hall, and is located in a neighborhood bordering the Oak Grove Cemetery. The structure is central to a separate, complex, and yet-to-be-ruled-on zoning dispute between the town and the Zarbas that played out over three days in a Land Court trial. It’s also linchpin to a federal complaint filed by the Zarbas that alleges, among other things, a conspiracy by town officials. 

On July 16, Plymouth attorney Richard Serkey appeared in Dukes County Superior Court before Judge David Ricciardone on behalf of guesthouse abutters Keith and Lori Murphy, homeowners through a trust. New Bedford attorney Neil Smola appeared on behalf of the guesthouse owners, John and Susan Zarba. Oak Bluffs town counsel Michael Goldsmith was also present on behalf of the Oak Bluffs zoning board. 

Serkey informed Judge Ricciardone that superior court Clerk Magistrate George Davis, who sat just below the judge in the courtroom, had previously represented the Zarbas in the case for a short time, before being elected to his position, and that the Zarbas had campaigned for him. Ricciardone asked if that was going to be an issue. Neither of the other two attorneys said they found it an issue. Serkey himself said he didn’t find it an issue, but wanted the court to be aware. 

In 2015 the Murphys and the Zarbas had been friendly neighbors, but fell out of favor with one another when the guesthouse was erected. The Murphys asked former Oak Bluffs building inspector Mark Barbadoro to revoke the building permit because, they alleged, it was granted on the strength of false information provided by the Zarbas, a claim the Zarbas have consistently denied. Barbadoro refused a revocation, and the Murphys then sought relief from the zoning board, and were denied. From there the issue went to superior court. Whether the zoning arguments made by the Murphys were dismissed by Superior Court Judge Maynard Kirpalani is in dispute, though one regarding an alleged parking space violation has continued.

Smola argued Kirpalani actually addressed the alleged parking violation, and that between his decision and a partial decision for summary judgment by Land Court judge (now chief justice) Gordon Piper in a separate but related case, the issue no longer has merit. Smola also said Barbadoro had agreed with the Murphys’ allegation of a parking violation, and had conducted enforcement. Smola described this as the Murphys’ “sole remedy” under the law. He asked Ricciardone to dismiss the entire case.

Serkey counterargued that the matter wasn’t limited to such a sole remedy. He disagreed with Smola’s interpretation of Kirpalani’s decision, and said there are legal technicalities that sustain the Murphys’ parking violation claim. 

“[It] may be the subject of an interlocutory order, but the Murphys weren’t party to that,” he said.


Serkey also leveled a new zoning violation accusation — that the Zarbas’ guesthouse exceeded the square footage of its building permit. He asked Ricciardone to move forward with a trial. 

“They are in compliance with the Land Court,” Smola said of parking. “It’s already been determined.” 

He balked at the square-footage claim, and said, among other arguments, that Serkey based his estimate on assessor’s card data, which was not an accurate representation of square footage but part of a somewhat loose calculation for taxation. 

Ricciardone asked, “What is ultimately being sought here” by the Murphys? 

Serkey replied that the Zarbas should apply for a zoning board variance to settle the setback zoning dispute the Land Court is set to rule on. He conceded that matter was not before the superior court. He added the Zarbas should seek special permits from the zoning board for both the parking space issue and the newly presented square-footage issue. 

Smola reminded Ricciardone the impending Land Court decision could have significant bearing on the case before him.

“It might be worth a genteel inquiry as to its progress,” he told Smola. He asked Goldsmith for his perspective.

Goldsmith said the zoning board ruling found the Murphys had no jurisdiction to appeal, and that the Murphys appealed that decision to the court, where Judge Kirpilani partially agreed with the zoning board decision.

“We take basically a passive role in this appeal,” Goldsmith said. 

Ricciardone characterized the case as “very technical,” and a “longstanding battle” between neighbors, which was “very regrettable.” He said it didn’t “make sense” to expend “good money after bad,” and continue to litigate things that have already been ruled on. However, he also said, “Sometimes I can only deal with these issues in the course of the actual record as created at the time of trial, and your ability to object and to state the reasons therefore as to relevance.”

Ricciardone set the case for trial, with the caveat the Land Court may alter the trajectory of the case in the meantime. He also suggested the litigants consider settlement.

“I certainly wouldn’t be offended if there’s some kind of treaty that they can come to,” he said.