ZBA Upholds Order To Tear Down 33 Pheasant Lane
The Falmouth Zoning Board of Appeals last Thursday, August 5, voted to uphold the building commissioner’s order to tear down a home at 33 Pheasant Lane in East Falmouth, a property that has been source of conflict over the past two years.
In a unanimous vote, the board cited the applicant’s “refusal to discuss merits” of the case as a primary reason for the denial of the developer’s appeal of former building commissioner Rodman Palmer’s determination.
Kimberly A. Bielan, an attorney representing Pheasant Lane LLC and developer Daniel C. Maclone, focused her presentation to the board on highlighting what she referred to as the procedural deficiencies in the board’s conduct that formed the base of their appeal.
Two main points arose from Ms. Bielan’s presentation. The first argument was that the board lacked authority in seeking enforcement action for 33 Pheasant Lane. Ms. Bielan cited Chapter 40A Section 14, in which the duties of the zoning board of appeals are laid out. Enforcement action, she said, is not one of them.
“In fact, we could not locate one case in the commonwealth in which the zoning board sought enforcement from a municipal zoning officer,” Ms. Bielan said. “Simply, it does not have the right to do so under the statute. In the first instance, enforcement is the authority of the building inspector. And the board’s position, in this case, attempts to usurp such authority and empower itself and its volunteer members to pursue objective enforcement around the town.”
The second main point raised by Ms. Bielan was that, even if the board did have the authority to seek enforcement action, it was participatory in the case in doing so because a board member sought enforcement action. She argued that the board is therefore not capable of performing its duties as an impartial governing body.
“Under the zoning act, the client has a right to review by an impartial zoning board,” Ms. Bielan said. “By sitting on this request in which the board steps into the shoes of the building commissioner on the appeal, it is effectively assessing the merits of its own zoning request. This is a quasi-judicial board, and the board’s previous participation eviscerates substantive and procedural due process guarantees that are inherent guarantees under the statute,” she said.
Ms. Bielan also cited the two-year period between the time the initial complaints were filed, and she cited Massachusetts Supreme Judicial Court case Connors v. Annino, in which the court determined that any aggrieved person with an adequate notice has 30 days to file an appeal of the issuance of a building permit. When Mr. Palmer chose not to issue a cease and desist order for the property in August 2019, neighbor and board member Edward Van Heuren appealed it. The zoning board of appeals, however, did not, and now, two years later, Ms. Bielan is opting for the laches defense, a legal defense used in civil disputes when an unreasonable amount of time has passed since the initial incident.
“The board was undeniably aware of the building inspector’s August 2019 determination but did not appeal it,” Ms. Bielan said. “The board did not seek enforcement for over two years and therefore is barred by laches. The board cannot disavow any interest and then subsequently two years later seek enforcement.”
After the presentation, board chairman Terrence J. Hurrie asked Ms. Bielan if she planned to address the merits of the case itself, but she informed the board that she only planned to address the procedural missteps in the board’s conduct, as that was the basis of their appeal.
“The board has publicly taken the position, both in requesting enforcement from the building inspector and in the Van Hueren appeal, that the permit was improperly granted and the structure should be torn down,” she said.
There were no comments from the public regarding the issue, and after some brief discussion the board held its vote. Board member Robert B. Dugan said that without further discussion of merits, the appeal was not viable. Mr. Hurrie agreed, and the unanimous decision to deny the appeal of the tear-down order at 33 Pheasant Lane was officially made.