Oak Bluffs has decided not to appeal a Dec. 26 Land Court decision that was not in the town’s favor.
John and Susan Zarba, pro se plaintiffs in a labyrinthine boundary dispute with the town, sought to head off the possibility of an appeal of Land Court Judge Robert Foster’s ruling by circulating a petition for a warrant article. The Zarbas’ case stems from an alleged setback violation. Former Oak Bluffs building inspector Mark Barbadoro denied the Zarbas a final occupancy permit for a guesthouse they built, because he alleged it was 2.1 feet too close to the Oak Grove Cemetery. The Oak Bluffs zoning board of appeals upheld Barbadoro’s decision when the Zarbas challenged it. The Zarbas then sued in Land Court and won. The victory came in two parts. Barbadoro also alleged the Zarbas had a parking violation at their guesthouse. In August Judge Foster made a final ruling in the Zarbas’ favor on the parking allegation. The setback ruling came four months later. The Zarbas’ proposed warrant article alleged “there is no social or economic gain” for Oak Bluffs to pursue an appeal. It asked annual town meeting voters to block the town from appealing the Land Court decision. The petition, which has been submitted to the town with a number of signatures, is now effectively moot.
Oak Bluffs had until Feb. 13 at 5 pm to file its appeal in Land Court for an eventual transfer to the Massachusetts appeals court, according to John Zarba. This didn’t happen. Oak Bluffs selectmen chairman Brian Packish confirmed the town chose not to appeal.
Earlier the town tried to get the court to amend the judgment, but failed. In a lengthy motion, Oak Bluffs town counsel Michael Goldsmith pointed out a numeric portion of a surveying calculation found in Foster’s decision was erroneous. Foster denied any change to the judgement itself, but permitted a clerical correction for the record. The Zarbas also filed a motion after the decision, one that sought to recoup costs and fees incurred throughout the litigation. Foster denied that motion.
In a statement to The Times, the Zarbas expressed relief. “We are thrilled that the town did not appeal this Land Court ruling,” they wrote. “Those responsible for this mess have cost the town a tremendous amount of time and money. We were granted a building permit with no variance or special permit required. We followed every rule and bylaw, passed every inspection, and six months after we moved in, the town created a new survey that said we were roughly 26 inches too close to their property line. They put our family through five years of devastating financial and emotional turmoil for no good reason.”