A live music event on private property got a favorable ruling from a West Tisbury board on Thursday, although the Radio Farm event will likely be on hold for the off-season amid a torrent of neighbors’ complaints.
In a rare move, West Tisbury officials overturned a cease-and-desist order issued by the town zoning inspector sent to the host of the events. Overruling the zoning inspector was a tough decision for some board members, as it brought back frustrations from the town’s past failures to update its rules around use of private property.
The issue surfaced in early August, when West Tisbury zoning inspector Joe Tierney sent a cease-and-desist letter to Brad Tucker, who hosted half a dozen gatherings with amplified music this summer on his Radio Farm property.
Tucker said the gatherings, informally called “Music Monday,” began as get-togethers among friends, but it expanded over three months to include dozens of guests, microphones, and speakers.
With the growth of the events, Tucker became the subject of five noise-related complaints from neighbors.
At a packed zoning board of appeals meeting on Thursday, Tucker’s legal counsel successfully pushed back against Tierney’s cease-and-desist order, pointing to the vagueness in town zoning bylaws.
Writing to town officials, neighbors complained about noises emanating from the event beyond 10 pm, being driven indoors due to noise, and being disturbed by lighting setups. Some also called the gatherings a commercial pursuit, though Tucker said on Thursday that he did not charge attendees.
The gatherings continued after the cease-and-desist order, Tucker saying Thursday that he understood from a zoning board of appeals member that he could keep hosting until Tierney’s letter was approved. He also said he lowered the noise at later gatherings.
Key in Tucker’s appeal was a vagueness in town bylaws. Tierney’s letter told the host that he had exceeded a rule that allowed one “incidental use” — in this case a private event — on a property per calendar year. Tierney stated on Thursday that the one-event-per-year policy came from conversations on proper enforcement between himself and late town counsel Ron Rappaport.
“Incidental uses, such as private events, are only allowed once per calendar year in the [rural] district,” his letter read.
Tierney also said that private events are incidental, as they are not listed on the zoning bylaws’ use table, which shows whether permits are required for different uses of property.
Tucker’s lawyer, Marilyn Vukota, repeatedly grilled the board regarding a lack of definition in town bylaws. “You could get away with a letter like this asking for a cease-and-desist if there were a bylaw that was clearly and specifically identifying ‘What is an event?’ ‘When do you need a permit?’ ‘What’s a private event?’ ‘When are you violating an event?’” she said. “But that’s not the case here.”
“Just because that use isn’t on the use table, that can’t possibly be how we’re interpreting our bylaws. I mean, eating at the kitchen table isn’t on the use table either,” she added.
“I don’t write the bylaws,” Tierney replied. He also noted that due to the small size of his department, he relies on neighbor’s complaints to notify him of possible violations.
Board members asked Tierney multiple times to give examples as to what types of events could deserve a cease-and-desist notice. While critical of the notice, they also defended his use of the tools that current bylaws provide him.
“I don’t mean to be picking on Joe,” said board member Andy Zaikis. “In this situation, complaints were brought to his attention, and he looked at his potential arsenal of ‘What can I do to bring some relief to the people who are complaining to me?’ … Fortunately or unfortunately, one of the cudgels that he has is this single-use private event theory that allowed him to insist that the situation stop.”
Zaikis also noted, however, that Tierney could have enforced nuisance, congestion, and public safety regulations instead of relying on the incidental use rules. Vukota also said during the meeting that if Tierney’s letter had invoked the town’s noise ordinance, Tucker would not have appealed.
In an emotional exchange, board chair Larry Schubert accepted Vukota’s criticisms of the zoning bylaws, explaining that the town had tried and failed in the past to address them.
“For over 10 years this bug has been in our ears,” Schubert said of attempts to revise bylaws. “Most of you in the room weren’t here saying many of the things you said tonight. Maybe we would have gotten to a point where we could’ve made a list, voted on a bylaw everyone could agree upon.”
“I feel like I used valuable hours and threw them in the trash over that thing, and I’m sorry we’re here,” he said at another point, also asking townspeople to work toward more practical language in their bylaws.
Toward the end of the meeting, tearing up while expressing his frustrations, Schubert decided to do something he said he had not done in his tenure: move to overrule the zoning inspector’s enforcement. The vote to do so was unanimous.
Tucker, speaking to the board on Thursday, said that the success of his series had overwhelmed him at times, and that he felt it was best to not hold the events during this calendar year. “I think it was sort of an agreement we reached with Marilyn [Vukota] that we would extend an olive branch.”
“This started as a big dinner; I never intended for this to be an event,” he also said. “I’m not pushing to have some sort of festival. I don’t know what the future holds at all. It’s a relief we’re pumping the brakes on this thing. It was intended as community-enriching.”
A resident could appeal the board’s reversal of the cease-and-desist, though they have only 20 days after the decision to do so.
Town attorney Michael Goldsmith said Thursday that in order to appeal the decision, a resident would have to qualify as having standing, which in this case relates to being an abutter to Tucker, living close by, or showing harm or injury. Such an appeal would appear before the Dukes County Superior Court.
Mr Tierny has a long history of selective enforcement and almost every builder or homeowner fears his conservative approach to implementing the laws. The town would be wise to seek a replacement of Tierny to restore harmony in the Town and an excess of expensive lawsuits not worth defending. I was impressed the Board of appeals overturned another harsh ruling and has allowed a gratuitous event to continue.
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