Garage Case Is Heard by Judge

Town Counsel Presses in Court to Have Moujabber Garage Demolished as Ordered, Calling it Hideous

By IAN FEIN

A three-story North Bluff garage built in open violation of town zoning laws three years ago is an illegal eyesore and must come down now, Oak Bluffs town counsel Ronald H. Rappaport told a Dukes County Superior Court judge this week.

"This building - this monstrous, hideous, inappropriate building - should not have been built, and the court said so last year," Mr. Rappaport argued on Tuesday, asking the court to affirm a December 2004 demolition order from the town. "It's been up there for three years now. You can't dress it up in any way that's going to make it fit."

Boston attorney Michael Vhay countered that his client, Joseph G. Moujabber, was acting in good faith when he built the structure three years ago, and that he should be afforded a reasonable opportunity to bring his building back into compliance. Mr. Vhay cited a Massachusetts Supreme Judicial Court (SJC) ruling from Falmouth to argue his point.

"I would advise you to tread very carefully," he told the judge on Tuesday. "The SJC has said that demolition should be a last resort."

The exchange came during a two-and-a-half-hour hearing in the Edgartown courthouse on Tuesday afternoon. The Hon. Richard T. Moses presided over the session, which involved multiple motions filed in two separate lawsuits over the North Bluff garage. Also present in court on Tuesday was Boston attorney Stephanie Kiefer, who is representing neighbors Albert Read and Belleruth Naparstek as intervening parties in both suits.

Attorneys on all sides this week acknowledged that the dispute has resulted in a complex procedural knot, and Judge Moses, who admitted he knew very little about the case on Tuesday, said it might take him some time to untangle the mess.

The conflict dates back 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 and earned the moniker Garage Mahal from critics.

Under pressure from town officials and neighbors, then-building inspector Richard Mavro, who later retired under accidental 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. It marked a key win for the town and neighbors because, had the court found in favor of Mr. Moujabber in that particular case, he would have been entitled to keep the garage as it stands.

The second two lawsuits - which were both before Judge Moses this week - deal with subsequent attempts by Mr. Moujabber to salvage his building by attaching it to an existing residence he owns on an adjacent lot.

Because town voters added the North Bluff neighborhood to the Copeland Plan district of critical planning concern (DCPC) in spring 2004, Mr. Moujabber, before he could obtain a new building permit, was required to seek a certificate of appropriateness from the district review board. Mr. Moujabber twice submitted modification plans to the Copeland Plan review board, and both times his application was denied.

At issue in two of the motions before Judge Moses this week was the proper way for Mr. Moujabber to challenge the review board decisions.

The first time, he appealed the denial to the town zoning board, which determined that it did not have the authority to overturn the review board. Mr. Moujabber then sued the zoning board, resulting in the second of his three lawsuits.

Mr. Rappaport on Tuesday argued that the zoning board was correct in its determination because the review board administers special land use regulations empowered by the state legislature through the enabling act of the Martha's Vineyard Commission (MVC). These DCPC regulations trump town zoning bylaws, he said, so therefore an appeal of the zoning board decision has no place in court.

"This is settled law. There is a legion of cases on the Martha's Vineyard Commission," Mr. Rappaport said, citing what he described as seminal cases dating back to the early years of the regional planning agency. "The MVC statute and case law have made it clear that these are not zoning bylaws; they are regulations to protect special resources with regional and statewide significance. This court can't breathe power into a board that doesn't have it."

Mr. Vhay suggested that, because the DCPC regulations are listed within the town zoning bylaws, the zoning board should have the authority to overturn a review board decision. But in an exchange with Judge Moses on Tuesday, he conceded that there is a significant distinction, because while zoning bylaws require approval from the Massachusetts Attorney General, DCPC regulations specifically do not.

The third lawsuit in the conflict arose after the Copeland Plan review board turned down Mr. Moujabber's modification plans for a second time. Here, instead of going back to the zoning board, Mr. Moujabber appealed the denial directly to court.

Mr. Vhay on Tuesday argued that the review board decision was arbitrary and capricious because it did not provide supporting facts or reasons for its conclusion. "At the very least, this case should be remanded back the Copeland board to give my client a clear decision that tells him how he can bring the building into compliance," he said.

Mr. Rappaport countered that the Copeland Plan review board is charged with protecting the unique cultural values and Victorian architecture of the North Bluff neighborhood, and that the rectangular three-story garage was simply out of scale with everything else in the area.

Also before the court as part of the second lawsuit on Tuesday was an appeal of the December 2004 town demolition order. Mr. Rappaport acknowledged that Judge Moses has broad discretion over whether to affirm to the demolition order at this juncture, but he argued that - because Mr. Moujabber has not made a reasonable effort to resolve the situation - the court should take action soon.

"Something else should have been done during these last two years," Mr. Rappaport said. "At some point along the line these plaintiffs should have said, ‘This doesn't fit, and we'll come in with a more modest proposal.'"

Mr. Vhay reiterated that Mr. Moujabber should be given every opportunity to bring his building into compliance.

"My client has conceded, and everyone agrees, the building cannot stay as it is," Mr. Vhay said on Tuesday. "But what we're left with is what everyone was left with in May 2004 - what to do with that three-story structure."