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.”
I hope the case goes to the Supremes. Litigating against the Zarbas all this time over a tiny slice of easement/setback is ludicrous. Obsession with tiny strips of land that defacto affect no one is harassment.
Abutting a cemetery. No less undesirable area to argue over
The Zarbas gave this comment to the paper. This article does not address the conspiracy and underlining constitutional property right violations.
How did this matter end up at the US Supreme Court? The answer is simple. The fact is the Oak Bluffs ‘old boy network’ used every relationship it had to try to try to force us to give up our property rights to allow a neighbor, who was clearly a member to the ‘network’ to turn our backyard into a public access road for his property.
Town counsel convinced the town to grant them hundreds of thousands of tax dollars to perform unnecessary title, survey and legal work on the our property when no court matter required it and with absolutely no benefit for the town.
The towns actions caused us to endure: the denial of water hook-up, 4 year denial final occupancy permit, 52 day ousting, parking restrictions, denial of fair and impartial board meetings, manipulated town assessor maps, installation of a public street sign, fully executed Agreement for Judgement document created by town counsel and the neighbor that grants rights to the use of our backyard for the neighbor, continued mowing, plowing and grading.
For 5 years we were forced to defend our property as pro se litigants over constructing a fully permitted legal guest house. Six judges in two state court venues carefully reviewed the zoning evidence and every issue found that the our property is fully compliant. As hard as they tried to create a zoning issue one never existed. The State courts provided strictly zoning relief and not adequate post-deprivation remedies. We were seeking remedy in the lower court.
The reason that we are in the US Supreme Court is because the lower court dismissed our pro se civil rights matter based on a mere ‘motion to dismiss’ by relying solely on the intentional misrepresentation of the facts offered by the town officials, board and town counsel.
We understand that the US Supreme Court accepts only 1% of the petitions that it receives. We still filed this US Supreme Court action for two reasons. First, the lower courts decision is wrong and the facts of this matter are unprecedented. Second, we love this Island and hope that the facts of this matter creates positive change to hire more upstanding town officials, non-bias board members and most importantly impartial town attorneys.
We pray that this matter is accepted by the US Supreme Court to deter municipalities throughout the county from violating the constitutional property rights of its residents.
Who owns that house now?
Mr Engleman obviously has not reviewed this case. This case alleges a wide spread conspiracy for a good old boy network to bully an innocent family into submission. In reading the allegations various facts stand out where town officials and their legal team attempted to steam role a local well respected family to favor a well connected abutter, a former magistrate. The article does not seem to touch on any of these salient facts.
If the Zarbas truly “love this Island”, as stated by Susan Lemoie-Zarba, they wouldn’t have prolonged a case in Court that must have cost the Town of Oak Bluffs thousands and thousands of dollars in legal fees. I hope the Zarbas are happier wherever they live now, but I doubt it. Once litigious, always litigious.
Gayle,
I never saw the inside of a court room until our property rights and retirement plans were assaulted and ultimately devastated by the town of Oak Bluffs. For you to call someone you don’t know “once litigious, always litigious” is at best, unfair.
And as one who worked in the Edgartown court for 42 years, – I would think that you, more than most – would understand that the system is supposed to protect citizens from unjust treatment.
I’d suggest that you take a few minutes to read our Supreme Court filing for yourself with an open mind, and then let us know what you would have done. It’s linked in the article above.
I see a completely different side. If you feel your rights are being abused, you are suppose to try and settle first, then if you must, litigate. Litigation is the civil way to proceed in a dispute. As you see in the world today, people are using guns to settle matters. Bravo to the Zarbas for using a safe civil process, at also great expense to them. And in fact one local Court sided with them, which proved they had a real case.
The constant warfare over a tiny strip of land is the same reason why we will not have affordable housing or block apartments for the workers in the center of the island. Zoning will not budge in order to create a solution.
If doesn’t happen often Andy, but I am in complete agreement with you on this one. The powers that be, most of whom have been sitting on their respective boards for way to long, refuse to even entertain a simple solution to a serious housing issue.
100% Andrew. this is not just about a small easement this is about the misuse of power by the zoning board(s) and select persons and building inspectors. ob is a mess and this should have been resolved a long time ago. good on the zarbas go get your piece of justice. as my off island friend says “ob ain’t no edgartown” true that
Thank you Mr Charette for calling me by my name.
The only thing the Zarba’s didn’t do is buy a very nice house on a lake in Maine for approx 500k after paying off legal fees. Living on MV will squeeze them even more with taxes for redundant schools, land bank fees, significant inflation, city legal fees for litigation and more homeless who come her for services. Taking their issue to the Supremes is courageous but in an incestuous MV they will be hounded.
Gayle,
I never saw the inside of a court room until our property rights and retirement plans were assaulted and ultimately devastated by the town of Oak Bluffs. For you to call someone you don’t know “once litigious, always litigious” is at best, unfair.
And as one who worked in the Edgartown court for 42 years, – I would think that you, more than most – would understand that the system is supposed to protect citizens from unjust treatment.
I’d suggest that you take a few minutes to read our Supreme Court filing for yourself with an open mind, and then let us know what you would have done. It’s linked in the article above.
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