Judge dismisses Murphys’ parking suit

A bitter legal battle over the lawfulness of a parking space beside an Oak Bluffs guesthouse came to a close last Thursday. Superior Court Judge David Ricciardone ruled in favor of defendants John Zarba and Susan Zarba in a case brought by their neighbors Keith and Lori Murphy against them and the town’s zoning board of appeals.

In all, six judges weighed in on the protracted case before it concluded, four in Superior Court and two in Land Court via a parallel case. It was a partial decision in that parallel case, Judge Ricciardone’s decision shows, that guided him to rule as he did. As The Times previously reported, the Zarbas won a partial victory on Aug. 16 in that separate court case. Land Court Judge Robert Foster finalized a summary judgment ruling made by fellow Land Court Judge Gordon Piper on the matter of parking at the Zarbas’ guesthouse in April 2018. The ruling eliminated the issue from the Land Court case. Judge Foster included language in his ruling that made it clear he did not see merit in a trial on the subject in another court. 

“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.” 

After quoting Foster’s argument on the potential waste of judicial resources, Judge Ricciardone wrote, “I agree.” 

Ricciardone upheld the Zarbas’ claim that res judicata prohibits further court action on parking.

“Res judicata is a general term for the legal principle that a prior ruling,” Ricciardone wrote, “in certain circumstances, has a binding effect in future actions as against certain parties.”

Ricciardone cited several examples of case law to support the application of res judicata in his ruling, including Morganelli v. Building Inspector of Canton. That case was employed to debunk the assertion made by the Murphys that their interests weren’t represented in the Zarbas parallel Land Court case against Oak Bluffs, and therefore the summary judgment made in that case wasn’t binding on their Superior Court case. The Murphys had argued that not only weren’t they litigants in that case, but that an affidavit and exhibits filed on their behalf weren’t reviewed by the Land Court until after Judge Piper had made his summary judgment ruling. Ricciardone disagreed. He ruled that town counsel Michael Goldsmith represented the Murphys’ interests in the case because he represented former building inspector Mark Barbadoro’s stance on the parking issue. Since Barbadoro was the enforcement officer for zoning issues relative to parking, Goldsmith therefore represented the interests of all Oak Bluffs citizens on the matter, the Murphys included. 

“As all are aware,” Ricciardone wrote, “the Murphys were not party to that lawsuit, although they did submit affidavits and exhibits in that case in May 2018. Evidently, their counsel worked with the town’s counsel to bring this about. Regardless of the timing of that filing, I find that the Murphys’ interests were fully represented by the municipal defendants and their representatives in the Land Court case.”

Ricciardone threw out the Murphys’ claim that the Zarbas’ guesthouse was in violation of Oak Bluffs zoning bylaw because its square footage allegedly exceeded 750 square feet. He described it as “a totally new claim” that would be “unfair” to insert into the case. 

“The plaintiffs’ excuse for doing so, i.e., ‘because that issue was by its very nature only one that arose after the ‘guesthouse’ was constructed,’ makes no sense,” Ricciardone wrote. “The Zarbas’ structure was completed in June 2016, and they received their first temporary certificate of occupancy a month later. The plaintiffs were certainly aware of the potential for their square footage claim at least as early as February 2017, when their current counsel was trading emails concerning this very issue with the building inspector. Moreover, the building inspector who measured the structure and found it to be in compliance also reasonably supported the methodology which led to this conclusion.”

In the concluding paragraph of his ruling, Ricciardone wrote that he agreed with the Zarbas’ argument that the Murphys have eked out as much relief as the law permits.

“The Murphys’ serial challenges to the Zarbas’ construction project since 2015 have resulted in pointed and persistent enforcement of the zoning bylaws by the building inspector,” Ricciardone wrote. “Their complaints regarding enforcement of town bylaws as the parking space and the square footage of the structure on their neighbors’ property were fully addressed. This is precisely all that they were due, and a trial could result in no further remedy.”

In an email to The Times, the Murphys maintained the stance they’d taken in the courtroom — that the Zarbas’ legal success was forged through false pretense. 

“This decision was based on the summary judgment ruling in the Land Court,” Lori Murphy emailed. “The summary judgment ruling occurred because the Zarbas said, in court, that there were two driveways on their property for the past 13 years. That statement is false. We have affidavits and photos proving that there were not two driveways. The Zarbas took advantage of a change of judges in both the Superior Court and Land Court cases. Now the property is listed on MLS as a ‘compound’ with ‘two parking lots’. It’s a quarter-acre.”

In his decision, Judge Ricciardone lent no weight to the allegation the Zarbas gave false testimony. 

“Our interests were not represented by the town (municipal defendants) in the Land Court case,” Lori Murphy later texted, “and we were not parties in the Land Court case, so we were not heard in either the Land Court or the Superior Court, as the Superior Court case was dismissed before we went to trial.”

Richard Serkey, lawyer for the Murphys, told The Times he’s on vacation in Europe and hasn’t yet reviewed the decision. 

The Zarbas admitted they did put their Oak Bluffs property on the market briefly for $1,895,000, but it has been taken off the market. Another property they own on the Vineyard was also put on the market. The properties were listed “because of a tremendous amount of legal debt,” Susan Zarba said. She went on to say their Oak Bluffs property was pulled when progress was made with the other property. “We will need a place to live when it conveys,” she said.  

“These claims were frivolous and spiteful from the very beginning,” John Zarba emailed. “Just because you don’t like what a neighbor is legally allowed to do on their land, you shouldn’t be able to persecute them for four years with 81 formal complaints to town officials, four ZBA appeals, and four Superior Court filings. It’s too much … We are grateful to the judicial system for finding justice for the Zarbas.”

The Zarbas still have two other active cases. A ruling on the other portion of their Land Court case with Oak Bluffs over an alleged setback violation is pending from Judge Foster. And a federal complaint made by the Zarbas that accuses several Oak Bluffs officials of civil rights violations and deprivation of property rights, among other allegations, is in its beginning phases in Boston. 

“Our original plan was to retire and live happily ever after in our guesthouse,” John Zarba wrote in a follow-up email. “Because of how we’ve been treated, we have changed our plan. We have been terrorized by the town and their attorneys as well as the Murphys. Life is too short to live in a neighborhood like that.”

In an email to The Times, Neil Smola, lawyer for the Zarbas, wrote, “We are very pleased with the result, although not at all surprised.”

In a text message, Susan Zarba wrote the guesthouse was lawful from the get-go, and the court record bears that out: “The Zarbas have not lost any of the four Murphy lawsuits against them because the Zarbas have not broken any laws. [We] built a legally permitted, conforming, approved, guesthouse, and justice prevailed.”