A long-running fight between former Oak Bluffs residents John and Susan Zarba and the town of Oak Bluffs has reached the U.S. Supreme Court. John Zarba, et ux., Petitioners v. Town of Oak Bluffs, Massachusetts, et al. stems from a complex boundary dispute that saw the Zarbas victorious in state court, but without a win in federal court. Odds-wise, the case has a slim chance of actually being heard and adjudicated by the nation’s highest court, according to Jack Fruchtman, a constitutional law expert and Times contributor. Fruchtman said the Supreme Court addresses only a tiny fraction of the cases it receives. Nonetheless, the Zarbas, who are pro se litigants, the firm Pierce, Davis & Perritano, LLP, representing the town of Oak Bluffs, and the firm Brody, Hardon, Perkins & Kesten, LLP, representing Oak Bluffs town attorneys Ron Rappaport, Michael Goldsmith, and their firm, Reynolds, Rappaport, Kaplan & Hackney, LLC, have filed detailed arguments with the court that show no sign they are taking such a low probability for granted.
The core issues of the Zarbas’ petition stem from an alleged setback violation that was adjudicated in Massachusetts Land Court. The Zarbas built a guesthouse in Oak Bluffs that was alleged to be too close to the Oak Grove Cemetery. Two surveys, a pre-existing one conducted by Charles Gilstad for a developer, and a contemporary one done by Bill Austin on behalf of the town, yielded disparate answers to the setback question, and helped fuel a four-year legal skirmish. This fight ended with Judge Robert Foster finding the most merit with Gilstead’s survey, overturning an Oak Bluffs zoning board of appeals decision, and ordering the town to issue a final occupancy permit for the guesthouse. The Zarbas went on to sue the town and town counsel in the U.S. District Court of Massachusetts, where their case was dismissed. The U.S. Court of Appeals for the First Circuit denied an appeal of the district court decision.
In court documents, the Zarbas claim the appellate court upheld an “erroneous decision” by the district court, and that findings of fact in their case were disregarded. They allege the defendants violated their constitutional property rights and “did a masterful job” of leading the district court to incorrect conclusions. They argue town counsel is “central” to an “extremely complex” case that unfolded over five years, involved many people and boards, and was a “clear conspiracy matter.” Any immunities the defendants enjoy should be bypassed, they argue.
The town alleges there are “no compelling reasons” under the law for the case to be considered by the Supreme Court. The town argues there is no merit in naming individual members of the ZBA culpable, and that allegations against other town officials are “thin.”
Highlighting part of what Judge Foster wrote in his decision, that the ZBA made an “error,” lawyers for town stated, “The Land Court found no evidence of bad faith or malice when later denying Plaintiffs’ Motion for Costs, reasoning that ‘the ZBA’s reliance on the Austin survey, even if it was wrong, was not so unreasonable as to constitute gross negligence. The evidence at trial or otherwise presented by the Zarbas does not support a finding that the ZBA acted in bad faith or with malice.’”
Lawyers for Reynolds, Rappaport, Kaplan & Hackney (town counsel) also argued the Zarbas’ petition falls short of what is necessary for the Supreme Court to take action on the case.
“We understand that the U.S. Supreme Court accepts only 1 percent of the petitions that it receives,” the Zarbas wrote in an email to The Times. “We still filed this U.S. Supreme Court action for two reasons. First, the lower court’s decision is wrong, and the facts of this matter are unprecedented. Second, we love this Island, and hope that the facts of this matter create positive change to hire more upstanding town officials, non-bias[ed] board members, and most importantly, impartial town attorneys.”