HomeMy WebLinkAbout23 MISC 000313 LER Order of Remand 05.21.251
COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
BARNSTABLE, ss. 23 MISC 000313 (LER)
WAKEBY DEVELOPMENT, INC.,
Plaintiff,
v.
STEVEN DEYOUNG, DICK MARTIN, JAY
FRAPRIE, JOHN MANTONI and SEAN
IGOE, as they are Members of the
YARMOUTH ZONING BOARD OF
APPEALS and the YARMOUTH ZONING
BOARD OF APPEALS and SOUTH SEA
VILLAGE CONDOMINIUM changed name
to TCI FINANCIAL SERVICES, INC. and
merged with TELE COMMUNICATIONS
INC.,
Defendants.
ORDER OF REMAND
In this action filed July 3, 2023 pursuant to G.L. c. 40A, § 17, plaintiff, Wakeby
Development, Inc., appeals the denial by defendant, the Yarmouth Zoning Board of Appeals (the
Board), of plaintiff's application for a special permit to raze and rebuild an existing single-family
dwelling and replace it with a new single-family dwelling on property located at 184 South Sea
Avenue, West Yarmouth. On May 14, 2025, the parties filed a Joint Motion for Remand Order.
Having considered the parties' submission, the court ALLOWS their Joint Motion for
Remand Order. It is hereby ORDERED:
1. This matter is REMANDED to the Board to consider additional evidence and any
amended, new, or resubmitted proposal at a new public hearing, to allow plaintiff the
opportunity to submit a revised plan for consideration (the "Remand Application").
The Remand Application shall be filed with the Board within 30 days of the entry of
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this Order of Remand, unless the court grants a motion for extension for good cause
shown.
2. As agreed by the parties:
a. The usual public hearing notices shall be required; plaintiff shall not be required
to submit a filing fee but shall be obligated to pay the notice/publication costs;
b. Upon completion of its review, the Board shall issue a new or amended written
decision on the Remand Application for a special permit to raze and rebuild an
existing single-family dwelling and replace it with a new single-family dwelling
on property located at 184 South Sea Avenue, West Yarmouth (the "Remand
Decision").
3. The Board shall open and hold a public hearing on the Remand Application as soon
as possible, but no later than 60 days after its submission, unless the court allows a
later date for good cause shown. Unless the court allows a later date for good cause
shown, the Board shall issue and file its Remand Decision with the Town Clerk as
soon as possible, but no later than 30 days after the public hearing closes.
4. Within 10 business days after the Board issues its Remand Decision, the parties shall
file with the court a joint written status report, summarizing and providing a copy of
the Board's action on remand.
5. The court retains jurisdiction over this case, including any appeal which may be taken
by any party to this case from or relating to the Board's further proceedings pursuant
to this Order or the Board's Remand Decision. No party currently involved in this
litigation who is aggrieved by the Board's Remand Decision needs to initiate a new
lawsuit in this court. Instead, within twenty (20) days of the filing of the Board's
Remand Decision with the Town Clerk, any such aggrieved party shall:
a. File with the court (and serve on all parties) a motion for leave to amend the
pleadings to seek judicial review of the Board's Remand Decision, attaching the
proposed amended pleading, and
b. File written notice with the Town Clerk of having filed the motion to amend,
along with copies of the moving papers.
6. If the Board's decision on remand is not appealed within 20 days after said Remand
Decision is filed with the Town Clerk, the parties shall file a joint stipulation of
dismissal promptly, dismissing the complaint in this action with prejudice, waiving all
rights of appeal, and with each party to bear their own legal fees and costs.
7. Nothing in this order shall affect the rights of persons other than the parties to this
action to appeal or challenge the Board decision on remand.
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8. The provisions of G.L. c. 40A and related caselaw will apply as may be necessary to
clarify and/or establish deadlines or other terms not set forth in this Remand Order.
9. This case is STAYED pending the remand.
SO ORDERED.
By the Court (Reznick, J.)
/s/ Lauren E. Reznick
Attest: /s/ Deborah J. Patterson
Deborah J. Patterson, Recorder
Dated: May 21, 2025