Owner Appeals to Court in Garage Case

By CHRIS BURRELL

Oak Bluffs businessman and restaurateur Joseph G. Moujabber is headed to court to try to rescue a three-story garage that his North Bluff neighbors want to see demolished.

Mr. Moujabber's lawyer, Bruce S. Barnett - an associate in the Boston law firm of Piper Rudnick - filed an appeal last week in Dukes County Superior Court, arguing that the Oak Bluffs zoning board last month wrongly declared the garage illegal while unanimously upholding the revocation of the building permit.

"The decision exceeded the authority of the board," Mr. Barnett wrote, adding that the permit originally issued to Mr. Moujabber back in November by Oak Bluffs building inspector Richard Mavro was proper and legal under town bylaws.

The lawsuit was not unexpected. Two weeks ago, Oak Bluffs town counsel Ronald Rappaport met with selectmen and speculated the case would go to court.

Since last March, the garage has created a political furor in Oak Bluffs - at the epicenter of three zoning board hearings, topping agendas at selectmen's meetings and spawning the creation of a neighborhood association united in opposition.

Zoning board members last month criticized the Oak Bluffs building department's handling of the Moujabber project, repeatedly asking how a permit granted for the replacement of a 240-square-foot garage became a 3,000-square-foot building with decks and sliding glass doors.

Mr. Moujabber, who owns and operates Nancy's Restaurant in Oak Bluffs with his cousin Douglas Abdelnour Jr., stated on his building permit application last fall that the construction project was for storage purposes only and would cost just $22,000.

While Mr. Moujabber's attorney has staunchly defended the so-called triple decker garage as it stands now, he is also pursuing the possibility of an alternative plan for the structure, telling town officials that his client would like to move the building ten feet to the east away from abutting lot lines and attach it to the five-bedroom bungalow which faces Seaview avenue extension.

The new plan can't proceed without permission from the Copeland District Review Board, now that the North Bluff section of town is part of the district of critical planning concern (DCPC).

Asked by selectmen earlier this month whether he would support a push for the building's demolition, Mr. Rappaport said Mr. Moujabber should be given the chance to remedy the problem within a reasonable period of time.

An application from Mr. Moujabber asking for permission to move the structure could come next month at a time when many of the summer residents who turned out for ZBA hearings in July have already returned to their off-season homes.

But battle lines over the garage have been clearly marked since the spring. Neighbor Belleruth Naparstek picked up the torch from her late husband, Arthur Naparstek, joining forces with another abutter, and hired a Boston attorney named Stephanie Kiefer to fight against the Moujabber building.

She also rallied others in the North Bluff to band together and form a neighborhood association. "We are committed to ensuring that this preposterous, three-story ‘garage' will cease to mar Oak Bluffs," Mrs. Naparstek wrote in the editorial pages of the Gazette last month.

Meanwhile, in the face of mounting opposition, Mr. Moujabber vowed to preserve his backyard building project, telling the Gazette last May: "I'm going to fight it all the way. The town or the neighbors - somebody's going to pay for this."

But aside from obtaining the original building permit last November, nothing in the ensuing battle has gone Mr. Moujabber's way.

The Oak Bluffs building inspector revoked a permit for the controversial garage built in the North Bluff in May.

As the chorus of protest against the garage grew louder last April, Mr. Mavro issued a cease-and-desist order, stopping any further construction. A month later, in May, shortly after Mr. Rappaport drafted a legal opinion that concluded the permit should have never been issued in the first place, Mr. Mavro revoked the same permit he had granted six month earlier.

Then came the zoning board hearing in July, when Mr. Moujabber failed to win his appeal of the revocation and exposed his project and his lawyer to intense rancor in two successive public meetings attended by crowds that filled the council on aging to capacity - more than 60 people on each occasion.

Political fallout from the garage case hasn't been difficult to spot. Selectmen who appoint Mr. Mavro questioned the building inspector a month ago about his role.

Mr. Mavro blamed the controversy that blew up around the project on the ambiguous new zoning bylaws that the planning board created last year under the guidance of a Boston-based law professor Mark Bobrowski.

But when selectmen called in Mr. Rappaport for a briefing on the same topic, the town counsel said it wasn't murky bylaws that led to the original permit, but Mr. Mavro's decision to view the application for a garage replacement as a residential structure, not an accessory building.

Zoning bylaws governing accessory buildings are more strict and would not have allowed a permit for such a project.

Disappointment for Mr. Moujabber also came last June when he failed to take ZBA chairman Gail Barmakian off the case, charging that she had a conflict of interest. Ms. Barmakian, an attorney, had represented neighbors of Nancy's Restaurant who objected to the second floor expansion of the business.

Ms. Barmakian disclosed her previous work, but argued that it had no bearing on the Moujabber garage matter and no influence on her job as zoning board chairman.

But residue from the Nancy's expansion clearly played a role for some of the residents who spoke out during the ZBA hearings.

Four years ago, Mr. Abdelnour and Mr. Moujabber added a second floor to the restaurant under strict rules from the zoning board of appeals that it would be used for storage only.

In 2002, the two business partners appealed the zoning board decision to superior court and settled their dispute with neighbors, creating 140 more seats, a new bar and second floor patio for their harbor side restaurant.