In an unexpected twist, Joseph G. Moujabber, the Oak Bluffs resident who built a three-story garage along the North Bluff without a permit, has appealed the recent decision by a Dukes County superior court judge to annul a demolition order and send the garage back to a town architectural board for fresh review.
Also late yesterday afternoon cross appeals were filed by both the town of Oak Bluffs and by Mr. Moujabber’s neighbors Albert J. Read and Belleruth Naparstek, who are intervenors in the case.
It all adds up to a flurry of new court activity in the much-watched illegal garage case.
Mr. Moujabber’s notice of appeal, filed on August 29 in the Massachusetts Land Court, disputes three parts of the decision handed down by the Hon. Richard T. Moses last month that favor the town: that town bylaws require a certificate of appropriateness from the Copeland District Review Board before a building permit can be issued in his case, that the former building inspector was correct in not issuing a building permit for the garage and that the town zoning board of appeals had no authority to review the Copeland board decision.
The town cross appeal disputes two aspects of the ruling that favor Mr. Moujabber: to send the garage back to the Copeland board for fresh review and to annul the demolition order issued by the former building inspector.
The Copeland board has special regulatory powers vested in it by the Martha’s Vineyard Commission.
Reached at his Boston office on Wednesday, before the cross appeals were filed, Mr. Moujabber’s attorney Michael Vhay called the appeal a “placeholder.”
“We feel strongly we can work with the town towards an amicable resolution before the appeal even goes to court. Given the timing of the judge’s decision in late July, a time when it is impossible for all the parties involved to get back before the town boards, we felt the right decision was to file [the notice of appeal]. This way, it keeps all of Mr. Moujabber’s options open,” Mr. Vhay said.
He continued, “Frankly we felt the judge echoed many of the points we already made to the Copeland board and to the town. What Mr. Moujabber wants is a frank discussion that is not colored by the considerations and the emotions of the past. We felt we needed more time to accommodate that discussion.”
Yesterday Oak Bluffs town counsel Ronald H. Rappaport had another view. “Since the property owner is appealing certain aspects of the decision the town felt the court should get the whole case rather than just a portion of it. The fact that the property owner appealed shows there were a significant number of issues that were adjudicated in the town’s favor,” he said.
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 North Bluff 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 in superior court that the zoning board and building inspector were correct in revoking the building permit for the structure.
The decision last month from Judge Moses ordering a fresh review by the Copeland board and annulling the demolition order, at first glance appeared favorable to Mr. Moujabber.
He also dismissed a nuisance counterclaim by Mr. Read and Ms. Naparstek. And a new review by the Copeland board would have given Mr. Moujabber another chance at approval.
Judge Moses found that the Copeland board decision denying the certificate of appropriateness lacked specific detail. But he also took special note of the broad regional powers of the Martha’s Vineyard Commission and affirmed the Copeland board’s authority to trump zoning bylaws.
With the filings last week and again yesterday, the entire matter heads back to court, this time the Massachusetts Court of Appeals. Proceedings in the state appeals court typically take about two years before disposition.