On February 16, the Mattapoisett Zoning Board of Appeals finally heard the appeals from Sheryl Martin, Brian Porter, and the Trustees of the Mattapoisett Landing regarding a cease and desist order issued on August 30, 2016 by Director of Inspectional Services Andy Bobola.
An enforcement order issued by Bobola that had been continued since August was filed after several residents of the age 55+ condominium sub-division located at 102 Fairhaven Road reported that Brian Porter, age 53, had moved into a unit with Sheryl Martin, age 58, to whom Porter is now married.
It was the opinion of the Town that Porter could not reside there since he did not meet the age requirement.
Bobola confirmed the information presented by aggrieved residents, then issued a cease and desist order to Porter, Martin, and the trustees. That was followed by individual lawsuits against the three parties, a suit currently winding its way through land court.
On the night of February 16, lawyers for all parties presented their cases in the hope of achieving an agreement.
That was not the outcome.
Representing husband and wife Brian Porter and Sheryl Martin was attorney Edmund Allcock. Representing the trustees was attorney John Markey, and representing the Town was attorney A. Alexander Weisheit and Town Administrator Michael Gagne.
Addressing the ZBA members first, Allcock said the Special Permit that granted the construction of the sub-division did not exclude some residents being under the age of 55 and that only 80% of the residents needed to meet that age requirement according to federal law that had been referenced in the permit.
He also said that HOPA – the Housing of Older Persons Act – applied to this situation.
“There is no violation here,” Allcock stated.
Allcock then described how Porter and Martin met and fell in love, were married in 2015, with Porter moving into Martin’s unit. He said that prior to Porter moving in, the couple received a waiver from the trustees allowing Porter to reside in the over 55 community.
Allcock said the Town had filed a lawsuit to have Porter removed before giving the couple a mandatory 30-day appeal period. A $100 a day fine has been ticking away since then for each of the named parties in the lawsuit.
Continuing his argument, Allcock said, “I don’t understand what the big deal is.” He said Porter and Martin were not a drain on public services and did not have children in the school system. He asked the ZBA to overturn the enforcement order.
Attorney John Markey on behalf of the Mattapoisett Landing Trustees spoke next. Although he confirmed that several residents had been “upset” when Porter moved in, after a meeting, “They did the compassionate thing…” and gave the couple a “narrow waiver” that allowed Porter to stay.
Markey also insisted that the trustees should not be enjoined in the lawsuit, saying that the ZBA had, “…A chance to do the right thing – if you pass this, then litigation will go away. You have the right to do this.”
Speaking on behalf of the Town, Weisheit said that Land Court Judge Long viewed the case as a “straight forward yes or no.”
“Is he (Porter) over fifty-five or not?” asked Weisheit. “The bylaw is clear … our interpretation is that there is no reference to federal law.”
Gagne rose to speak. He said, “Why does the town pursue the fine?” He then explained that bylaws are voted on through the Town Meeting process and therefore had to be adhered to.
Regarding the sub-division’s permit, Gagne said that in 2005 the site had been called Maple View Court and that analysis by the Planning Board granted the developers a “density bonus” that allowed 17 additional units, but only if all residents on the property were over the age of 55.
Gagne said, “They traded off to get the density bonus…. The age restriction minimizes the impact on the school system.” He said that the trust documents state “55 and over.”
“It’s fairly clear,” said Gagne.
Gagne said that by allowing Porter to stay in place a precedent could be set.
“It is not selective enforcement,” said Gagne. “We have nothing against them.”
But he said the case will go through Land Court. Gagne also said that Bobola had agreed with the town’s position.
Martin then described going through a long and stressful process that she and Porter had thought to avoid by receiving the trustees’ waiver.
“I don’t understand why the Town is harassing us,” she said.
Martin said mounting legal fees and fines are troubling and she has sought relief with the Massachusetts Board of Discrimination. She said if the Town acknowledged the trustees’ waiver, it would not violate the bylaws that are in place.
Martin said the last meeting between all parties found Gagne telling her to pay $5,400 to get a special waiver. She asked the ZBA, “Are we buying a waiver?”
Gagne said that sum represented legal fees the Town has incurred.
“Why should the municipality fork out the money?” said Gagne. “We are going to move forward in Land Court.”
With all parties heard from, the public hearing was closed as ZBA members Mary Ann Brogan, Norman Lyonnais, Kenneth Pacheco, Anthony Tranfaglia, and Chairman Susan Akin discussed the case.
Akin turned to the board members and said, “We are here to enforce or overturn.” She said the parties had violated the Special Permit and that, if the ZBA granted their request, HOPA could be applied to future locations.
“We can’t look at drama and compassion,” Brogan said. “So many times we’ve felt sorry for people we’ve ruled against.” She felt emotions could not be part of their decision making process. “It’s not fair for others. I think it’s irritating that the trustees think they can make their own rules.”
The 90-minute hearing ended with the ZBA unanimously voting to uphold the enforcement order.
Bobola and Gagne could not be reached for further comment before press deadline.
Earlier in the evening, the board moved to approve a Special Permit to Weston Van Cantor for property located on the corner of Main and Depot Street for demolition of the existing structure and construction of a new single-family dwelling.
The next meeting of the Mattapoisett Zoning Board of Appeals will be scheduled for March 16 at 6:00 pm in the town hall if hearings are planned.
By Marilou Newell