After three years of legal maneuvers, appeals and bitter accusations on both sides, a Dukes County superior court judge this week ruled that the three-story garage built by Joseph G. Moujabber without a permit in the North Bluff district of Oak Bluffs should not be demolished - for now. Instead, the judge ordered a new review by a town architectural board with special broad powers vested in it by the Martha's Vineyard Commission.
The much-anticipated court ruling essentially sends the building that has earned the nickname garage-mahal back to square one.
In a pair of legal opinions, the Hon. Richard T. Moses affirmed the decision by the former Oak Bluffs building inspector not to issue a building permit for the Moujabber garage because it never received a certificate of appropriateness from the Copeland Plan District Review Board.
But the judge also overturned the decision by the Copeland review board to deny the certificate of appropriateness and ordered the board to conduct a new review, saying the first decision lacked details and specifics. The judge also dismissed a nuisance counterclaim by abutters Albert J. Read and Belleruth K. Naparstek, and annulled a demolition order that was issued by the building inspector in the spring of 2004 and upheld by the town board of appeals.
The dispute dates to November 2003, when Mr. Moujabber received a town building permit to replace an existing 200-square-foot garage on his Sea View avenue extension property. The proposed cost of the replacement was $22,000, but less than six months later, the project grew into a three-story building with multiple balconies, sliding glass doors and a roof deck. The new structure sparked heated opposition throughout the neighborhood.
Under pressure from town officials and neighbors, building inspector Richard Mavro, who later resigned on disability, revoked the building permit for the garage in May 2004, a decision the zoning board of appeals upheld later that summer.
Mr. Moujabber since has filed three lawsuits against the town. The first - an appeal of the revocation order - was resolved last February, when both sides agreed to a superior court judgment that the zoning board and building inspector were correct in revoking the building permit for the structure.
That decision by the Hon. Richard F. Connon marked a key win for the town and neighborhood because, had the court found in favor of Mr. Moujabber, he would have been entitled to keep the garage as it stands. The recent decision by Judge Moses does not rule out the structure being torn down, but means the garage will remain standing for the time being while opening the door for future appeals.
A substantial portion of Judge Moses's legal opinion focuses on the Copeland Plan District Review board's decision to deny Mr. Moujabber a certificate of appropriateness. The Copeland review board administers special land use regulations under a district of critical planning concern, allowed by the state legislature through the enabling act of the Martha's Vineyard Commission.
Town voters added the North Bluff neighborhood to the Copeland district of critical planning in spring of 2004, about six months after Mr. Moujabber built the garage. Mr. Moujabber then twice submitted modification plans to the Copeland Plan review board; both times his application was denied.
In the opinion issued this week, Judge Moses takes special note of the broad regional powers of the MVC and affirms the Copeland review board's authority to trump zoning bylaws, but also finds that the review board did not provide specific feedback when they voted to deny the plans and did not work with Mr. Moujabber to find some kind of a compromise.
"A fair consideration of any application requires an open exchange of information, ideas and suggestions between the applicant and the board . . . this court concludes that the decision of the Copeland Board dated April 15, 2005 with its absence of adequate subsidiary findings demonstrating the full and fair consideration of the applicants proposed project is arbitrary and capricious," the judge writes.
He also notes that the Copeland review board regulations are broadly drawn and open to interpretation.
"It would appear that the MVC Act, as sought to be applied by the Copeland Board, could potentially preclude the construction or modification of any size . . . if the court were to literally apply the language relating to ‘appropriateness' which provides that ‘the views from abutting property shall be preserved,' no structure could be built since the construction of any structure is highly likely to impact the view of something from abutting properties, including pleasing scenic views as well as unsightly views," the judge writes.
Judge Moses also agreed with Mr. Moujabber's assertions that the three-story garage does not compromise any of the neighbor's views of the ocean.
"Moujabber argues persuasively that the proposed structure will not alter any significant views of the ocean or any scenic area. In fact, it appears from the photographs contained in the record that they will at least obstruct a view of a three story motel and its dirt parking lot," he writes.
Oak Bluffs selectman and board chairman Kerry Scott, who was chairman of the Copeland board when it voted to deny the plans submitted by Mr. Moujabber three years ago, disagreed with the judge's finding that the building does not compromise people's views.
"It certainly compromises the view from the ferry when it pulls around East Chop. You come around the corner and you see this unattractive building - three stories of unattractive building at that. This is something that affects the entire Island," Ms. Scott said.
Mrs. Naparstek, one of the two interveners in two lawsuits over the garage, said she was disappointed in the judge's decision, but remains optimistic the Copeland review board will make the right decision.
"I am a great believer in the system - whatever commission or board reviews this garage I still firmly believe any reasonable person or group of persons will come to same conclusion: that this structure violates our bylaws and disturbs the aesthetics of this neighborhood, this town and this Island," she said.
Town attorney Ronald H. Rappaport called the decision largely positive, noting that it affirms the Copeland review board's authority to deny any structure or addition within the Copeland district and that authority was not subject to review by the town zoning board.
"[The judgment] is saying the garage has no permits and cannot be allowed to remain without permits. Any improvements on the property will need approval from the Copeland [review board] and zoning approval, without it they will not be allowed to stand. What the decision says is that this should go back to the Copeland board so the board can give a more detailed explanation. And that will happen," he said.
Renee Balter, a member of the Copeland review board, also disputed the judge's opinion that the building did not compromise people's views of the water. "All you have to do is go down there and look at it . . . it stands out like a sore thumb," she said.
Mrs. Balter said many people view the garage as a symbol of a bygone era of town politics.
"It wasn't long ago that some people did whatever they wanted and got away with it. But things have changed; people are more aware of what is going on and are less likely to allow something like [the Moujabber garage] from going up in the first place," she said.
Mr. Moujabber's Boston attorney Michael Vhay could not be reached for comment yesterday.
Selectmen will meet with Mr. Rappaport and discuss the legal ruling at their regular meeting scheduled for 5 p.m. on Tuesday at the Oak Bluffs library.