Oak Bluffs opts not to appeal Land Court ruling 

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The Zarba's guest house. — Rich Saltzberg

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.”

12 COMMENTS

  1. Will there be a post mortem done by the selectmen? How much did Oak Bluffs pay in total legal bills on this pursuit? Which of the selectmen thought this was a good idea and a good use of scarce tax dollars? We’ve been watching this slow motion, vengeful litigation for years. I’m pleased Packish closed the book on this case.

  2. One would hope the Town has learned a valuable and expensive lesson to trust ones intuition and not local politics, personality, or following the crowd. The Zarbas on what seemed like a very limited budget beat the Goliath running on tremendous willpower and the luck of a fair Judge. Once again the taxpayers are the ones that suffer another loss.

    • Wait until you see how much money the Town will spend in the Federal Case the Zarbas have brought against them. Your tax dollars being spent on a needless case brought on by the Zarbas.

    • The Town of Oak Bluffs was forced into the Land Court case (by the Judge) when the Zarbas tried to close Davis Ave to their neighbors, which would give the neighbors no vehicular access to their homes. Otherwise, the Town would have stayed out of this case. The Zarbas do not deserve your sympathy.

      • The town zoning board could have settled this in one night. Your statement is also false as the Zarbas never tried to block any neighbor from accessing their home. The Judges have now ruled 4 times everything you said is false.

        • Well, maybe the MVTimes should just show the viewers your land court case where it is documented you tried to do so. Are you denying you never tried to close the road to your neighbors?

  3. Look at the photo in this article of the Zarba’s guesthouse, taken from their main house. There is a natural border of trees separating the main house and guesthouse. This is one of the bylaws right from the town website. There is a link to the zoning bylaws on the building department page: “The external appearance of the structure in which the accessory apartment is to be located shall not be significantly altered from the appearance of a single-family structure. ”
    Does this look like a single family structure, or two separate homes? The Zarbas claim they have followed every bylaw. That is a stretch!

  4. I had to hire a lawyer to keep someone from using my private property, to access their property. They had access to their property from another public road but my property was a slight shortcut. I stopped them and it cost me a little bit but it was worth it. My feeling is….if it’s your property, it’s your property, not your neighbors because it’s more convenient for them.
    I pay for the upkeep of my property and no one else.

  5. Proud American. The property that we are talking about is a dirt road (Davis Ave) that has been used by islanders for hundreds of years. It runs along the cemetery and provides the Murphys and O’Neils their only access to their properties. The Zarbas house is on a parallel street (South St) and the guesthouse was built on Davis Ave (practically in the road). You should really look for yourself. It’s right near the town hall. The Zarbas own a piece of the road, and have tried to close out the Murphys and O’Neils who are the only ones that actually live on Davis Ave. They have also been fighting to remove our Davis Ave Street sign. Would you want to live on an unmarked street?

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