Marathon Hearing for Angry Abutters

The evening of November 20 started out tame enough, but once the continuance of issues resulting from a conflict between James Henderson and several abutters resumed, the hearing seemed as difficult to untangle as balled-up fishing lines.

During a prior Mattapoisett Zoning Board of Appeals hearing, James Henderson, 16 Bay View, asserted he had a verbal contract with Scott Snow – the developer of three adjacent lots – that would have protected him from harm when Snow and his partners undertook construction.

But that was years ago.

Since that time, Henderson and Snow have been at loggerheads on several matters, resulting in Henderson coming before the ZBA to air grievances and to try to get the Town to act on his behalf.

As far back as 2007, Snow and Henderson met to discuss the work Snow proposed to do on the Grandview lots – work that would include building a sea wall and bringing in fill to elevate the lots to meet FEMA requirements for residential housing in a flood zone. A building permit was issued to Snow, and Henderson did not object.

Henderson asserted, and Snow confirmed, that specific drainage work, which would have assured that the construction nearby would not have a negative impact on his parcel, was to have been completed on the Henderson property. That work was never completed.

Snow says it is because Henderson would not allow his team on the premises to do the necessary construction. Henderson says it is because Snow breached verbal agreements by not doing the work as planned and permitted by the Town.

Henderson contended that he never received notification from the Town of Snow’s permit to build a home and, that being the case, he was within his right to ask the ZBA to hear his after-the-fact concerns.

Attorney Stanford Matathia, representing Henderson, Attorney Shepard Johnson, representing Snow, and Mattapoisett’s Town Counsel Jonathan Silverstein were all in attendance to provide clarity on the issues as viewed by their respective clients.

Matathia provided evidence centered around stormwater runoff onto the Henderson property and contaminated fill transported to the Grandview Avenue lots by Snow. In addition, he noted that the building inspector had not pursued a zoning enforcement against Snow because the home Snow built, asserted Henderson, was larger than the home that was permitted.

Furthermore, Matathia said a variance, rather than a special permit, for the fill and building of a sea wall should have been necessary and there was a lack of proper notification to Henderson.

Matathia also attempted to show that a merger of lots had been granted by the ZBA in order for the residence to meet certain zoning requirements at the time the permit was applied for, and therefore, the building inspector had incorrectly identified one of the three lots as buildable.

Johnson gave evidence that Snow made numerous attempts over the years to try and satisfy Henderson to complete promised land contouring work on his property – all to no avail. He also said that the house constructed not only complied with the permit, but that Town departments had signed off on the structure.

As for the contaminated fill, Johnson said there was a question as to whether the soils were of poor quality when transported to the site, or if demolished structures at the site had fouled the surrounding area.

Johnson also said the Town had never approached his client about subsequent remediation requiring the removal of asbestos from ditches dug by the Water and Sewer Department during the installation of sewer systems. He also gave evidence that the lots were individually owned and had not been merged.

ZBA Chairman Susan Akin, along with ZBA members Norman Lyonnais, Ken Pacheco and Eugene DesLanders, waded through permits, plans, photographic evidence, and nearly two and a half hours of verbal testimony from all three lawyers present.

Several times throughout the proceedings, the ZBA members seemed overwhelmed by the sheer volume of information that was being presented while pondering aloud their jurisdictional duties.

“We do buildings,” stated Akin at one point. “That’s what we do.” She said this in response to facing the volume of details of stormwater runoff, wave action, and poor drainage problems.

Lyonnaise, who was visibly frustrated, stated, “After [an application] leaves us, we go home to our families!”

But Matathia pointed out to the board members that their role was not only to grant special permits and variances, but to act in the role of the appellate body to enforce the permits and variances they grant. Akin turned to Silverstein for guidance.

Silverstein advised the ZBA to take each matter being raised one by one, and make a decision on each, because it was clear to him that Henderson and Snow, et al. would be heading to court. If that should come to pass, Silverstein said, the ZBA should have decisions that would be reflected in documents presented by each side to a judge.

And so they did.

To the issue of Henderson’s after-the-fact appeal, the ZBA voted that the time had passed and therefore he could not pursue a cease-and-desist order against Snow through them; his appeal was untimely, they said.

To the matter of a special permit versus a variance, the board agreed that a variance was not necessary because fill and the construction of a sea wall were on the plans that had been approved, negating the need for the applicant to request a variance.

The ZBA members were in agreement with the building inspector that a zoning enforcement was not appropriate and that the house constructed had met the plans submitted.

The board also believed that no merger of lots had been requested or granted at the time the building permit was granted.

Earlier in the evening, the ZBA quickly heard and approved: Special Permit to Ed Calder, 406 Church Street, for the construction of an addition; Special Permit to James McQuade, 0 Harbor Road, for the construction of a single-family dwelling; and Special Permit to Peter Noyer, 94 Marion Road, for the construction of an apartment over an existing garage.

The next meeting of the Mattapoisett Zoning Board of Appeals is planned for December 18 at 6:00 pm.

By Marilou Newell

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