No easy answer to Squibnocket building permit question

State panel will review exhibits and seek legal advice before reaching a decision; DEP says no license needed for project.

Construction of the bridge to Squibnocket Farm continues even as legal challenges also continue. —Rich Saltzberg

Updated Jan. 23

At a hearing in Milford last Thursday, the state Building Code Appeals Board kicked the question of whether the Squibnocket causeway project should require a building permit farther down the road. Board members said they wanted time to go over the proliferation of exhibits presented at the meeting, and to seek legal counsel.

The hearing was requested by attorneys representing Chilmark residents Doug Liman and David Stork in another effort to stop the access to Squibnocket Farm, which has been under construction since October. Mr. Liman and Mr. Stork, who were represented in last Thursday’s meeting by Dan Larkosh, have already attempted a number of legal measures to impede construction, including a suit against the Chilmark zoning board of appeals, the town of Chilmark, and Squibnocket Farm, Inc., which was dismissed with prejudice in Land Court in September 2017.

Mr. Larkosh said the opposition’s claim was “very simple”: The causeway could be considered a “structure” under Massachusetts state building codes, and therefore it would require a building permit. Among the many exhibits entered into the record, Mr. Larkosh showed a site plan, an engineering review, and town of Chilmark plans for the project — none of which, he said, included a building plan. Mr. Larkosh argued his clients were concerned both about the safety of the bridge, and the legality of the construction. “Every day the bridge is used, it is a new violation,” Mr. Larkosh said.

Ronald Rappaport, town counsel for Chilmark, said the Building Code Appeals Board had no jurisdiction to rule on the matter of the permit — because the appeal has surpassed the 45-day window from the initial decision, and because Mr. Liman and Mr. Stork are not, he said, aggrieved parties. Mr. Rappaport also submitted several exhibits, including a letter from 2016 in which Mr. Liman appealed to Chilmark building inspector Lenny Jason for a permit. Mr. Jason, also in attendance at the meeting, denied Mr. Liman’s request in August 2016, and stands by his decision. “We have numerous bridges,” Mr. Jason said. “None of my predecessors, nor I, have ever issued a permit for a bridge. Right now I just see it as a roadway.”

Mr. Rappaport’s other exhibits included decisions from other legal actions, including the September 2017 Land Court ruling. “The project has been fully vetted,” Mr. Rappaport said. “There’s really nothing to hear.”

Richard Batchelder, representing Squibnocket Farm, affirmed Mr. Rappaport’s sentiment. “We’ve been to every agency you can think of and then some, and they’ve all approved [the project],” Mr. Batchelder said. Squibnocket Farm clients, who would be the only users of the private bridge, spent millions of dollars to ensure a safe construction, he said.

Afforded the opportunity to respond, Mr. Larkosh said the proponents’ arguments did not address the question of the building permit, and that previous legal decisions should have no bearing on the question at hand in this particular meeting.

The board questioned Mr. Larkosh briefly on the building codes he had used to formulate his argument. “Does it talk about roads or bridges? Because there is a difference between building codes and zoning, planning, and environmental codes,” board member Michael McDowell said.

Only then did Mr. Larkosh introduce the argument that his clients were aggrieved because the causeway would impede their view.

“Is it the view?” Mr. McDowell asked. “Did you forget to mention it?”

Mr. Larkosh said he didn’t think that point was relevant to the permitting issue, but conceded that the view is an important element of his clients’ opposition to the project. “This is a multimillion-dollar home on a pond,” he said.

After over an hour of discussion, Mr. McDowell stated that given Mr. Rappaport’s concerns over whether the board had jurisdiction over this case, he was uncomfortable making a motion without first seeking an opinion from the board’s legal counsel. The rest of the board agreed they would need more time to review the unusually high volume of exhibits entered. The project will carry on as scheduled at least until the board delivers a decision, which may not be for several weeks.

 

Lawyers comment after hearing

Mr. Batchelder, who represented Squibnocket Farm at the hearing, argued that his clients’ opponents lack the standing to make their complaint and that unlike Squibnocket Farm or the town of Chilmark, they failed to produce witnesses or testimony at the hearing.

“We were pleased to have an opportunity to present our position to the board that they lacked jurisdiction over this latest attempt by Mr. Liman and Dr. Stork to stop a project that is nearing completion after receiving all the necessary approvals,” Mr. Batchelder wrote in an email. “Mr. Liman and Dr. Stork are not aggrieved persons within the meaning of the relevant statute, they failed to bring their appeal in a timely fashion (waiting well over a year from the initial denial of their request that the Building Inspector require the issuance of a building permit), and their argument that a building permit is required in connection with the relocation of an existing roadway is without merit. Mr. Liman and Dr. Stork did not attend the hearing, and their counsel did not introduce any testimony from any witnesses. The town of Chilmark presented testimony from Mr. Jason, the building Inspector, and Squibnocket Farm presented testimony from Mr. Porter, the professional engineer who stamped the plans for the project. Mr. Jason explained the reasons why a building permit was not required for a relocated roadway, and Mr. Porter testified that the project meets all building code standards.”

Mr. Larkosh, who represented Doug Liman and David Stork at the hearing, said he hoped the hearing would generate public building plans of the structure in question, and contended that the opposition had dodged his clients’ core argument.

“My clients hope that Squibnocket Farm is finally required to file a set of building plans with the town,” Mr. Larkosh emailed. “As it stands we have a large structure nearing completion with absolutely no accountability and no record on file of what is being constructed.”

In a subsequent telephone interview he said, “The opponents never addressed the merits of our argument. The thrust of their arguments are that [the appeal] should be dismissed on technicalities.”

Mr. Rappaport, who represented the town of Chilmark, and its building inspector specifically, declined to comment, citing the still unfolding nature of the case. However, he provided The Times with correspondence sent to the Board of Building Regulations and Standards ahead of the hearing in which he established Chilmark’s position, which echoed Mr. Batchelder’s arguments. Additionally, he argued that Building Regulations and Standards, a part of the Division of Professional Licensure, legally cannot rule on the matter:

“This board lacks jurisdiction to adjudicate this appeal because the Petitioners failed to bring this appeal within 45 days from the date the Building Inspector issued his decision,” he wrote. Mr. Rappaport went on to cite case law he found pertinent to this argument.

It’s unclear precisely how long it will take the appeals board and its counsel to digest the various arguments and render a decision.

 

No DEP license needed

In a four-page decision, the Massachusetts Department of Environmental Protection determined last Wednesday that the Squibnocket Farm access structure, and elements of the town of Chilmark’s beach restoration project relative to it, do not need authorization under state waterways regulations.

The decision affirms Judge Gary Nickerson’s November ruling, when he refused to issue an injunction sought on the grounds the project violated Chapter 91.

“The department has determined that the land over which the pile-supported and at grade roadways traverse is not Fill pursuant to 310 CMR 9.02,” wrote Waterways Regulation Program Chief Ben Lynch. “As a result, the land subject to this determination is not considered jurisdictional, and no Chapter 91 authorization is required.”

The lack of Chapter 91 applicability constitutes a big win for Squibnocket Farm and the town of Chilmark. A determination that a Chapter 91 license was necessary held the potential to delay or halt the ongoing work on the access structure, and hamper upcoming removal of the Squibnocket revetment.

“DEP’s decision just confirms and validates the position that the association [Squibnocket Farm] has taken from the outset — that the project is not located in an area subject to Chapter 91 jurisdiction because the project footprint consists of land that has naturally accreted,” Squibnocket Farm attorney Peter Alpert wrote in an email last Wednesday evening.

“The decision means that we do not have to obtain a Chapter 91 license on an after-the-fact basis for the project (which is substantially built at this point). Had DEP disagreed with us and found instead that the project site is subject to Chapter 91 jurisdiction (reversing the position it took in 2015), we simply would have applied for and obtained the license.”

Beginning Thursday, Jan. 18, the DEP decision has a 21-day appeal period.

Asked via email if an appeal was pending, attorney Glenn Wood, who filed the request for determination with DEP on behalf of 11 Massachusetts residents, wrote: “No appeal of the DEP 91 determination.”

Updated to include a decision not to appeal the DEP determination.