Updated Dec. 31
John and Susan Zarba, pro se litigants in a complex boundary dispute, emerged victorious on Dec. 26, when Land Court Judge Robert Foster ruled against the town of Oak Bluffs. Judge Foster overturned zoning violation decisions made by former Oak Bluffs building inspector Mark Barbadoro and the Oak Bluffs zoning board of appeals, and ordered Oak Bluffs to issue the Zarbas a final occupancy permit for a guest house.
At issue was an alleged setback violation. The Zarbas’ guesthouse was alleged to be too close to the Oak Grove Cemetery. In October 2015 the Zarbas received a building permit for their guesthouse, and by June 2016 they had finished the building, with numerous signoffs along the way. But when they requested a final occupancy permit, Barbadoro denied it on the grounds the town suspected there was a setback violation. The Zarbas maintained their guesthouse was legally sited at 21 feet from the cemetery, primarily based on a survey conducted by Charles Gilstad of Sourati Engineering Group. Oak Bluffs did not see it that way, and opted to conduct its own survey. As a result, Vineyard Land Surveying and Engineering surveyor Bill Austin found a different boundary from what Gilstad found. Based on Austin’s survey, Barbadoro issued a zoning violation notice to the Zarbas in November 2016. The notice indicated, among other things, that their guesthouse was too close to the cemetery by 2.1 feet. When the Zarbas appealed Barbadoro’s decision to the ZBA, the ZBA unanimously backed the building inspector.
The Zarbas filed a complaint in land court following the ZBA decision. Land Court normally convenes in Boston, but a trial was held in the Dukes County Courthouse in Edgartown to better ensure all witnesses could participate. The trial took place in November 2018 and returned to the Vineyard to conclude in January 2019. A post-trial hearing took place in February 2019 and Judge Foster then took the matter under advisement. In August 2019 Judge Foster ruled in the Zarbas’ favor on an alleged parking issue that was also part of the case, but left the setback issue undecided.
In his Dec. 26 decision, Foster found an old metal fence to be the most credible demarcation evidence produced at the trial. He ruled the fence line, in accord with Gilstad’s survey, marked the edge of the cemetery facing the Zarbas’ guesthouse — a.k.a. “the southern boundary.”
Foster referred to Gilstad’s survey as an ANR plan (approval not required plan), as the survey work was originally done to build an ANR development that included the Zarbas’ property and two adjacent properties.
“I find that the southern boundary of the Zarbas’ lot is as shown on the ANR plan; i.e., that the ANR plan correctly represented the boundary between the Zarbas’ lot and the cemetery to the south,” Foster wrote. “The Zarbas’ guesthouse therefore complies with the 20-foot setback requirement of the zoning bylaw. The ZBA’s reliance on the town’s survey was erroneous, and its decision affirming the Building Inspector’s finding that the guesthouse did not meet the setback requirement was based on a legally untenable ground. The decision will be annulled and the matter remanded to the ZBA, with an order that it direct the Building Inspector to issue the Zarbas a certificate of occupancy for the guesthouse.”
Three cases decided, one pending
Foster’s ruling marks the end of three separate cases in the Massachusetts court system involving the Zarbas’ Oak Bluffs property. The other two played out in Land Court and superior court. The dirt road that separates the Zarbas’ guesthouse from the cemetery became the focus of one case, a land court right-of-way melee that pitted the Zarbas and their neighbors the Essex family against two other neighbors, the Murphys and property trustees John O’Neil and John Feitelberg. Oak Bluffs, also a litigant, sided against the Zarbas and the Essexes. The case was presided over by Judge Gordon Piper. At issue was who could use that dirt road, and what kind of vehicles could drive down it. The case began when O’Neil and Feitelberg sued the Zarbas in March 2016. It ended in February 2017 when the Zarbas and the Essexes granted O’Neil and Feitelberg a limited easement to use the dirt road. From 2015 to 2019 the Zarbas were locked in bitter superior court litigation with neighbors Keith and Lori Murphy. The Murphys’ litigation largely stemmed from two unanimous votes by the Oak Bluffs ZBA not to undo portions of the Zarbas’ guesthouse project. Among other things, the Murphys alleged the Zarbas’ guesthouse was in violation of zoning regulations. The Murphys litigated their allegations before six different judges. The Zarbas won every courtroom battle the Murphys waged against them, culminating in October 2018, when Superior Court Judge David Ricciardone dismissed the Murphys’ final bid to bring the Zarbas to trial. The Murphys did not appeal Ricciardone’s ruling. In June 2018 the Zarbas filed a federal lawsuit against the Oak Bluffs ZBA, the current and former building inspector, the former principal assessor, two town attorneys and their firm, Reynolds, Rappaprt, Kaplan, and Hackney. The suit alleges the defendants denied the Zarbas due process, conspired to deprive them of their civil rights, and negligently inflicted emotional distress, among several other counts. Oak Bluffs and town attorneys have denied the allegations and filed a motion to dismiss the case.
One person who watched the Zarbas’ legal journey from its beginning is their former next-door neighbor, Randall Essex. Essex, a heavy construction engineer who worked on Boston’s Big Dig, participated in the right of way fight over the dirt road. He has long declined comment on that fight or any other legal matter relative to the Zarbas’ guesthouse. That changed on Monday when he emailed The Times.
“On behalf of the Zarbas, I am pleased with the Land Court’s recent favorable decision,” Essex wrote. “Having been their neighbor for 10 years, my wife and I had an up-close view of the Zarbas’ four-year ‘David vs. Goliath’ ordeal against the town. The property survey issue is resolved. But an equally important question remains — what motivated the town to spend tens if not hundreds of thousands of dollars of taxpayer funds in actions against the Zarbas that offered no benefit to the Town or its taxpayers? Could it be that an influential landowner in the area wanted unlimited vehicular access across the Zarbas’ (and our) property? Could it be that the landowner, when met with resistance, reached out for some town ‘assistance’ to change the Zarbas’ minds? Hmph. As a former O.B. resident, I would be asking another question — ‘What steps should the taxpayers be taking to prevent these actions from happening again?’”
Former Oak Bluffs selectman Kerry Scott told The Times the Zarbas’ ordeal with the town has motivated her to consider running again for what would be her third term as a selectman.
“One of the things that matter most to me was how people were treated,” she said. “We had a terrible reputation for not treating people fairly. And we lived up to that. And that is what motivated me to run the first time — the fact that people weren’t being treated fairly. This kind of stuff, the injustice of what happened to the Zarbas. It makes me crazy. We talk about what a wonderful place we have [here], and what wonderful community spirit we have, but our own government hurts people.”
Citing ongoing federal litigation, ZBA chair Andrea Rogers declined comment. However, ZBA member Llewllyn Rogers told the times he was pleased the Zarbas came out victorious.
“I’m glad to hear it,” he said.
He said in voting against the Zarbas as he did, he exercised the best judgement he could at the time. Thereafter, he said, the court worked properly in further examining the matter. Rogers said he wished the Zarbas well.
“I think obviously the next step for the town officials is to meet with attorneys and discuss the decision and what the appropriate next steps would be,” town administrator Robert Whritenour said. Whritenour went on to say the case brought up complex issues involving very old deeds and plans. Asked if the Zarba Land Court case and the unreliability it revealed about the Plan of the Highlands, other old subdivision plans, and deeds and surveys based off them, was an indicator for lot line issues in other parts of Oak Bluffs, Whritenour said yes.
“[It] certainly highlights challenges,” he said. But he qualified that by saying, “Not necessarily with respect to individual lines of every lot in town. I think that could be a little more alarmist. However, it’s clear some of the very oldest subdivisions, how they interact with the neighboring properties — [and] that’s where this case seemed to center — that is I think indicative of a larger problem.”
Doug Dowling, a civil engineer who provided expert testimony for the Zarbas at trial, said Foster’s ruling “was a good decision.” Dowling said he found the motivations behind the town’s parallel survey and legal campaign questionable. “It seems to me the selectmen and town counsel had an agenda,” he said. “I’ve seen town counsels waste taxpayer money before, but not to this degree.”
Attorney Michael Goldsmith, who managed the case for Oak Bluffs and appeared in court at each juncture, noted the jury’s still out on what the town will do next.
“The town was brought into litigation between neighbors where determining rights in a road, located at the limits of the Town Cemetery, were at issue,” Goldsmith emailed. “The area containing the plaintiffs’ lot was laid out by a 19th century plan, which the Land Court judge found contained ambiguities. The town’s surveyor and title expert relied on a historical deed, which set the boundary between the Town Cemetery and the 19th century development in which the plaintiffs’ lot is located. That deed and accompanying sketch showed an angle in the boundary line. The plaintiffs’ surveyor decided to use an iron fence surrounding a portion of the Town Cemetery, which had no angle, to set the line. The Land Court judge concluded, after listening to a number of witnesses, including both parties’ surveyors, the town’s title expert, and after reviewing a large amount of documentary material, that neither surveyor could definitively determine the boundary line’s location. In the context of this zoning appeal, the court elected to use the plaintiffs’ survey to establish the setback for their accessory structure. We will discuss the court’s decision with town officials over the next few weeks, who will decide what next steps to take, if any.”
The Zarbas offered only a brief comment about their court success. “We are grateful for the Land Court’s careful consideration of the facts, and for the ruling in our favor,” they emailed. “We will decline at this time to make any further comments due to the pending federal court litigation.”
Neither Reid Silva, who owns Vineyard Land Surveying and Engineering, or George Sourati, who owns Sourati Engineering Group, could be reached for comment. Defense expert witness Martin Loria could not be reached for comment. Selectman chairman Brian Packish did not return a call seeking comment. Packish previously declined to comment on any aspect of the Zarbas’ legal affairs because he built the foundation for their guesthouse.
Updated with additional backstory and comments from the litigants and others.