Courthouse showdown over guesthouse 

Judge says if Murphy-Zarba trial happens, the focus will be narrow.


A marathon dispute between neighbors in Oak Bluffs over the legality of a guesthouse reentered Dukes County Superior Court Tuesday for a determination on whether a trial will be held. 

Judge David Ricciardone took the matter under advisement after an hour and a half of arguments were presented by three attorneys. At the close of the proceedings, Ricciardone made it clear that should he rule the consolidated case can proceed to trial, that trial wouldn’t be a license to fish for new issues to litigate, but largely confined to any unresolved elements of an alleged parking violation at the guesthouse. 

“It would be a very narrowly focused determination of this parking issue, and that in turn, under the law, may be limited to whether the building inspector properly enforced the town’s bylaws,” he said.

Plaintiffs Keith and Lori Murphy were previously slated for trial Tuesday against guesthouse owners John and Susan Zarba, but on the strength of a partial Land Court decision on parking, the Zarbas filed a motion to dismiss the case. The Murphys responded with an opposition motion, and Ricciardone opted to hold a motions hearing in lieu of a trial. 

New Bedford attorney Neil Smola, who represented the Zarbas, said Land Court Judge Gordon Piper previously affirmed the authenticity of a parking space beside the Zarbas’ guesthouse in summary judgment, and Land Court Judge Robert Foster later finalized Piper’s opinion. Smola noted Foster’s decision specified that a Superior Court trial on parking would relitigate something already adjudicated in Land Court, and waste judicial resources. 

But Plymouth attorney Richard Serkey, the Murphys’ lawyer, did not see it that way, and leveled an accusation of perjury against the Zarbas, alleging the testimony they gave to Piper during a key summary judgment proceeding on parking was false, and therefore Piper’s key ruling was based on false testimony. Serkey alleged this was galvanized by affidavits from area property owners who stated no driveway existed where the Zarbas claim one did. One of the neighbors is a pastor, and another is Fall RIver clerk magistrate John O’Neil, Serkey said. 

Smola disputed the perjury claim, describing it as “unfounded” and not supported by photographic evidence provided to the Land Court. Smola further described the affidavits as possessing “no merit” in part because the affiants, including the Murphys, weren’t in the neighborhood consistently enough to monitor daily parking on the land in question. 

Serkey also argued the Murphys’ own affidavit was filed in Land Court after Piper made his decision, so it couldn’t have informed that decision. Serkey said it would be “grossly inequitable” and “unprecedented” not to allow the Murphys “their day in court” after, Serkey alleged, Foster based his decision on a ruling by Piper that was uninformed by the affidavit. 

Smola said a separate and “out of the blue” allegation brought by the plaintiffs, that the guesthouse exceeds the 750-square-foot threshold established by town bylaw, was previously dismissed by Superior Court Judge Maynard Kirpalani. Kirpalani’s decision notwithstanding, Smola said, the plaintiffs’ arguments were undercut by email communication between Serkey and former Oak Bluffs building inspector Mark Barbadoro. Smola submitted the emails as a new exhibit, and Ricciardone allowed them into the record with Serkey’s acquiescence. Smola read from an email sent to Serkey from Barbadoro: “Because I knew the [M]urphys were complaining about the guest apartment, I carefully measured it during the frame inspection, and I can confidently say that it is exactly 750 SF by my definition.”

Based on assessor card data, Serkey alleged the guesthouse was 884 square feet “and for all we know, the Zarbas have added to the square footage that was permitted to them when they got their building permit.” 

Smola sought to debunk a theory in the Murphys’ opposition brief that suggested because the Murphys weren’t party to the Land Court case (Zarba v. Joe Re et al.) where Piper and Foster made their decisions, they aren’t bound by the findings of those judges. But Smola pointed out Oak Bluffs town counsel Michael Goldsmith allegedly acted as an agent for the Murphys in part by filing an affidavit and exhibits from the Murphys into that Land Court case, where the judges subsequently had the opportunity to review the information. 

Goldsmith was present at the hearing Tuesday because technically, Murphy v. Zarba et al. is a three-way case, with the Oak Bluffs zoning board of appeals a defendant. However, he did not speak to conveying the Murphys’ affidavit. He did express to the court the town’s stance. 

“The ZBA’s position is very simple,” he said. “They didn’t have jurisdiction over these claims. That’s why we haven’t taken sides in either of these motions.” 

Goldsmith said previously Piper sided with the Zarbas over the town on the parking issue, but declined to interpret Piper’s ruling. “So that issue’s been decided,” he said. 

He also said the zoning board attempted to consolidate the case and couldn’t. 

Serkey said his clients also wanted to see the case consolidated, and have been at a legal disadvantage since it hasn’t been. 

Smola argued that the building inspector already enforced Oak Bluffs’ parking bylaw, and enforcement by that town official was the Murphys’ sole remedy under the law. Smola cited Morganelli v. Building Inspector of Canton to support the argument.

Serkey discounted the Canton case, and argued the timing of when suits were filed by the Murphys differs from that case in game-changing ways. 

Serkey also argued that “the relief that a trial would result in would be a determination that this building is nonconforming and illegal because of its setback violations. And that it is illegal and nonconforming because of the amount of usable floor space.”

Ricciardone questioned whether the issue of a setback violation was before his court.

“The Murphys’ day in court,” Ricciardone said, “may come out to the remedy of solely, whether building inspector took action as they requested. Period.”

Serkey concluded by saying the Zarbas “deliberately misled the town into granting them a building permit” through a false claim of residency, and that they are “seeking to evade judicial scrutiny” in their attempt to dismiss the case. Serkey reiterated the allegation the Zarbas committed perjury. 

“At what point, your honor, will the Zarbas be required to obey the law?” Serkey asked. 

Smola said the Murphys’ legal campaign was an attempt “to bankrupt, financially and emotionally, the Zarbas.” Smola went on to say the Murphys have “filed four lawsuits about this guesthouse, and over 40 different complaints to the town … they’ve lost at every single stage.”