In an August 16 decision, Land Court Judge Robert Foster handed down a final ruling on a portion of a complex zoning battle between the town of Oak Bluffs zoning board of appeals and guesthouse owners John and Susan Zarba.
The case dates back to a 2017 unanimous vote by the zoning board to uphold a decision by former building inspector Mark Barbadoro not to allow construction of an additional parking space at the Zarbas’ guesthouse, and not to grant them a final occupancy permit for that guesthouse. Prior to the zoning board meeting, Barbadoro had informed the Zarbas that he deemed them in violation of two Oak Bluffs zoning bylaws. He alleged they had a parking violation at their guesthouse because they did not have a contiguous driveway that stretched from their main house on South Street to their guesthouse on a parallel dirt road (a dirt road Oak Bluffs calls Davis Avenue and the Zarbas and the various court documents refer to as ‘the way”). Barbadoro also alleged the Zarbas’ guesthouse had a setback violation, that it was “two and one-tenth feet too close” to town property — the Oak Grove Cemetery.
The Zarbas appealed the zoning board’s decision in Land Court, where they litigated the case themselves. Judge Gordon Piper, in April 2018, ruled in summary judgement in the Zarbas’ favor on the parking issue. However, he set aside the setback issue for trial. A complex three-day trial took place at the Dukes County Superior Courthouse between November 2018 and January 2019, followed by closing arguments, heard in Boston in February 2019. Judge Robert Foster then took the matter under advisement. Foster had come to preside over the trial after Piper ascended to chief justice of the Land Court.
Earlier this summer, with no decision yet handed down from Foster, the Zarbas made a motion for a separate and final judgment on the parking issue. Though Piper had already ruled on it, parking still endured in the case due to legal technicalities. In a response to the Zarbas’ motion, town attorneys Ron Rappaport and Michael Goldsmith indicated the ZBA “does not object” to such a judgment, but requested Foster delay his ruling until the setback issue is also decided or 30 days before a superior court trial that also involves the parking issue — whichever of the two events comes first. The reason for this, they wrote, was “to increase the likelihood that there are not piecemeal appeals.”
The trial is slated for Oct. 8.
Counter to Barbadoro’s and the zoning board’s standpoints, Foster ruled that Oak Bluffs zoning bylaw does not necessitate the Zarbas to make a parking space for the guesthouse that connects to their South Street driveway, nor does the bylaw stipulate their driveways must be connected. Foster also ruled the Zarbas would be compliant with Oak Bluffs zoning bylaw if they constructed an additional parking space at either their main house on South Street or at the guesthouse. All along an extra space had been required for the guesthouse, which was built in 2015.
In a memorandum and order that accompanied Foster’s decision, Foster referenced case law and Massachusetts civil procedure, among other sources, to explain why he deemed it was justifiable to permit the Zarbas’ motion for a separate and final judgment under rule 54b.
“Rule 54b certification is a special dispensation, which should be used only in the infrequent harsh case,” he wrote. “This is such a harsh case.” Foster went on to write, “The court finds that there is no just reason to delay entering judgment on the summary judgment order until a final decision of this court issue, and every reason to do so. The summary judgment order decided the issue that is to be tried in the Superior Court action. The Superior Court has made it clear that it cannot find that this issue had been adjudicated without a final judgment from this court. It would be a waste of the resources of the Superior Court and the parties to require a trial on an issue decided by this court, and a trial in the Superior Court action would risk conflicting adjudications of the same issue.”
In an email statement to The Times, Keith and Lori Murphy, next-door neighbors of the guesthouse and the plaintiffs in the Superior Court action, vowed to fight on. “We are disappointed but not surprised by the Land Court ruling on the parking made by Judge Foster,” they wrote. “We were not a party to that case, so we had no voice.”
The Murphys went on to write, “We have overwhelming evidence the Zarbas never had a driveway on Davis Avenue until after they constructed the guesthouse. This includes multiple photos of their backyard prior to the guesthouse being built, and multiple affidavits.”
The Zarbas told The Times they don’t understand how the Murphys are still pursuing the issue. They allege after a 5-0 decision by the Oak Bluffs zoning board against the Murphys in 2015 where the Murphys had requested Barbadoro revoke the guesthouse building permit and halt all work on it, the Murphys lost all legal rights for future legal action because they didn’t appeal the zoning board decision when the law required.
