Heated Plymouth ZBA Meeting Raises Questions of Procedural Fairness
Exchange Between Chairman Main and Attorney Sheehan; Comments from the Public; Reasoning of the ZBA; Sheehan’s Letter to Select Board
[ Readers, this is an extremely long article, but the Jan. 4th meeting of the Plymouth Zoning Board of Appeals was extraordinary, and I thought it was important to cover it as accurately and fully as possible. It took a significant amount of time, and because I think it of public importance, I am publishing the article for free to all, but with a link where readers can leave a “tip” if they so desire, here: https://www.paypal.com/paypalme/plymouthcountyobserv ; thank you for your support as always, and, also let me offer a reminder that this publication welcomes corrections, feedback, comments, and Letters to the Editor, on this or any other matter. Thanks again. — Ed. ]
(PLYMOUTH) — A meeting of the Plymouth Zoning Board of Appeals (ZBA) on the evening of Wednesday, January 4th, 2023, grew rancorous, as Chairman Michael Main clashed with environmental advocate and Attorney Meg Sheehan over the nature of the evidence she brought forward in her petition on behalf of Save The Pine Barrens, a regional environmental organization.
At a hearing marked by raised voices and accusations of dishonesty from the Chair against an attorney arguing before him, serious questions were raised by observers at the meeting itself — including Town Meeting members and members of the public — regarding potential bias, and a possible lack of procedural fairness, on the part of the Chair of the Zoning Board of Appeals.
( Attorney Meg Sheehan, for Save The Pine Barrens, during the exchange with Chairman Main of the Plymouth ZBA, at the center of the top row of ZBA Members; photo credit — Save The Pine Barrens. )
The hearing heard an appeal brought by Save the Pine Barrens, an environmental group dedicated to the preservation of the globally rare Atlantic Coastal Pine Barrens ecosystem of southeastern Massachusetts, of an October 20, 2022, denial by the Town Building Inspector, Nick Mayo, of a demand by Save the Pine Barrens for the Building Inspector to enforce the Plymouth Zoning Bylaw with respect to sand and gravel removal at Joshua’s Way, on Long Pond Road between Drew Road and Tall Pines Road.
The property was purchased in the last year by the New Hope Chapel, a Plymouth congregation noted for its outreach efforts among the homeless and those suffering from addiction. New Hope wishes to build a church on the property, but they were not the owners of the property when the activity in question took place, and this article, like the hearing, is not devoted to the issue of the church (on which controversy I think reasonable people can and will disagree).
The proposed church is set to be heard by the ZBA on Wednesday, Jan. 18th, in the 1820 Courthouse/Plymouth Town Hall.
Rather, this article will focus strictly on the January 4th meeting of the ZBA.
Unlike other Town Boards and Committees, the Plymouth Zoning Board of Appeals is neither televised, on PACTV and Youtube, nor is it available to attend via Zoom. A recording of the meeting, however, was made by Save The Pine Barrens, and is available on Youtube (available here); this was the recording used by The Plymouth County Observer.
Threats posed by sand and gravel mining to the Plymouth-Carver Sole Source Aquifer are of deep and growing concern for many residents and environmental advocates across the region.
The Sheehan-Main Exchange
Attorney Sheehan opened her statement by noting that the parcel “abuts homes and open space, including the Town Forest.”
“We ask the Zoning board of appeals to impose the maximum fine under the bylaw, which could be up to 3.8 million dollars under the terms of the bylaw itself. The illegal mining was conducted by Sheava Development, whose principal is Scott Spencer,” said Attorney Sheehan.
She stated that the removal of earth in gravel “started in approximately 2015 … continuing for as many as seven years under the ruse of building a subdivision road and five house lots for houses that have never been built. Instead, for years Spencer conducted a stand-alone, unpermitted, unregulated —”
Michael Main, Chair of the ZBA, quickly interjected.
“Whoa, whoa, whoa, whoa! Whoa. Stop right there,” he exclaimed. “There was a permit for what Mr. Spencer did, issued by the Building Department, and you know that, and we know that, and I’m not going to let you start talking about things that aren’t true. That is not true,” he said emphatically.
Attorney Sheehan countered: “Where is the Building Department permit?”
Chairman Main continued, arguing that the Building Inspector had sufficiently done his duty, before forcefully stating:
“I’m not going to get into this, because I’ve read this whole thing, and there are so many things in there that are just erroneous and ridiculous. And look — I’ve had enough. This Board has had enough. This is a frivolous waste of time, and we can’t do that anymore. I’m going to ask the board what their thoughts are before I let you go any further, because they’ve all read the material, too, and there are so many things in there that are just not true … and it — it’s just — it’s flabbergasting! I’ve got to tell you. This costs this Town money! Every time you pull one of these stunts! I’ve been here 18 years, and I have seen five of these from you that have all been denied, all gone away, but all still cost this Town a ton of money. And now we’re talking about millions and millions of dollars on your frivolous lawsuits! I’ve had it. This one’s not going any further.”
There was a moment’s pause.
( Attorney Sheehan and Chairman Main; photo credit — Save The Pine Barrens. )
Attorney Sheehan then asked: “ First of all, are you denying us the right to a public hearing?”
“You have the right to a public hearing,” replied Mr. Main, “if you have standing, and we’re not even sure, in my mind, I’m not even sure you have standing.”
“Well, you can make that decision,” said Attorney Sheehan, who later averred that Save The Pine Barrens did have standing. “Are you denying us the opportunity to present evidence of our case?”
“I’m not denying you to have this hearing,” said Mr. Main. “I’m telling you that you cannot stand here and lie to us. And that’s what that is. And I will not put up with it. Period.”
“I have not lied to you,” Attorney Sheehan said. “I am trying to present facts. Where is the building permit that was issued for this project? We have done a public records request to this town that numerous people have reviewed, and there was no such earth removal permit for what was done here, and if I have the chance to present the evidence that we are intending to present in a public hearing —”
Mr. Main interjected once again.
“Ms. Sheehan, as you realize, once there is a subdivision permit, earth removal is part of that as part of developing that subdivision for a home. If he he took yardage out of there, he took it out with a subdivision permit. That’s the way the law reads! You know that!” exclaimed Mr. Main.
Attorney Sheehan replied:
“That is not the way the law reads, Mr. Chair, and I would like to explain that, and I would like to walk through the bylaw and the facts to show you exactly what happened, to try to get a fair and objective hearing in front of this board, to which we are entitled,” she said.
“You’re entitled to tell the truth to this Board!” Mr. Main exclaimed.
“And I would like to do that —” began Attorney Sheehan. Chair Main continued.
“And you’re entitled to follow the bylaws of this Town, and you’re not! At this point, I’m going to ask Town Counsel to weigh in on this,” he said.
Attorney Amy E. Kwesell, of KP Law, serving as Town Counsel, stated her view that, because of the amount of time that had gone by and the fact that the permit for the original subdivision allowed gravel removal, there was little the Board could do under the bylaws.
“If there were complaints made and those complaints were not addressed, then they should have appealed to the ZBA, as Attorney Sheehan has done numerous times in the last year,” said Attorney Kwesell. “So they've also lost that opportunity, too…. I have a problem with what exactly this Board could do; I can’t find anything that this board can do with this request, because of the time that’s gone by, and the activities … were allowed under the subdivision [permit].”
Chairman Main returned the floor to Attorney Sheehan.
“Now, Ms. Sheehan, you go right ahead, but I’m gonna stop you every time you tell something that is not truthful,” he said.
Attorney Sheehan continued her presentation.
“Our evidence will show that the subdivision plan that you’re referring to called for the removal of 4,900 cubic yards, and that what was removed was in fact seventy times that —”
Chairman Main interjected once more.
“Let’s ask this question: how much earth removal do you think was taken out of there?” he asked.
Attorney Sheehan began to answer, saying she would be glad to show how the numbers were calculated. Chairman Main interjected again:
“Did you have a professional engineer do this and give you a report, because I didn’t see one?” he asked.
“I will explain exactly how it was calculated right now,” she replied, “and it was done by a [person] who was qualified to do this, using open source data that is available to the Town to do it itself —”
“I don’t see [any] documentation,” said Mr. Main.
Attorney Sheehan attempted, again, to answer: “I will explain it to you right now; you have a chart, Exhibit 5, and I’ll walk you … through the model —”
Chairman Main once again interjected.
“Meg, Meg — if you haven’t got an engineer’s report there, you’re not an engineer; and listen — I can tell you about brain surgery, and I can hold up a bunch of pieces of paper, but I don’t know; and I don’t think you’re a surveyor or a land engineer, or any of that, so I don’t have a land engineer’s report here, then how can I —”
“Well, it’s not brain surgery,” replied Attorney Sheehan, “and perhaps if you would like to listen for a few minutes, I can explain exactly how this was done.” She noted that the person who had assisted with the calculations was present, and had taken courses in Geographical Information Systems (GIS).
The United States Geological Survey describes GIS thusly: “a Geographic Information System (GIS) is a computer system that analyzes and displays geographically referenced information. It uses data that is attached to a unique location.”
Attorney Sheehan continued, noting that the GIS data “shows how high the hills are and how low the valleys are across the globe. And so we went to this particular site —”
Mr. Main interjected forcefully.
“That’s speculation! There has never been somebody out there with a transit measuring to find out how much has been taken. If there has, give me the documentation,” he exclaimed. “Speculation doesn’t mean that it’s fact.”
“This is not speculation,” insisted Attorney Sheehan. “This was done by a radar satellite imaging system.”
Amid cross-talk, Attorney Sheehan started: “I can give you all of the articles that talk about —”
Chairman Main interjected again.
“Articles are not a report for that piece of property!” he declared. “Meg — you know better.”
Attorney Sheehan continued:
“I do know better, and I know that this is valid data. And if you’re going to sit here and say there’s no information, and you’re not going to require your own engineering department to figure this out, then actually citizens and other people who are concerned about the impact on our aquifer, and the failure to enforce the bylaw —”
“Then they should have done something many years ago!” exclaimed Chairman Main. “Enough! Enough!”
“The violations are ongoing,” said Attorney Sheehan. “May I finish on how this was calculated…?”
At this point, David B. Peck, the Vice Chair of the Board, addressed the Chair.
“Can I say, Mr. Chairman, I want to hear the full presentation,” said Mr. Peck. “We looked at the material that has been given to us, we certainly have questions and concerns; but just to complete the public hearing part, I want to listen to what the applicant has to say.”
Attorney Sheehan continued. She noted that according to the representations by the prior owner of the property, in the course of building the five houses that were planned for the subdivision, 4,920 cubic yards and 246 truck-loads of material were permitted to be removed. The neighbors and others suspect that a far greater amount has been removed, and in order to give an estimate of how much material had actually been removed, Save The Pine Barrens used topographical data available from a satellite that flew over the parcel in the year 2000; at that time, the highest point on the property, where the subdivision was sited, was 156 feet above sea level. The average elevation of the 20 acres in question was 147.3 feet. Today, according to Save The Pine Barrens, the elevation, which was obtained from a nearby lot (so as to avoid trespassing), is 126 feet above sea level, a difference of 21.3 feet. Ten acres in total have been altered, according to Google Earth data. Multiplying 10 acres by 21.3 feet gives a figure of approximately 343,000 cubic yards, or about 70 times what was permitted under the subdivision, said Attorney Sheehan.
Public Comment: Neighbors, Town Meeting Members, SEMPBA, and New Hope Chapel
A number of neighbors spoke during Public Comment. Anne Balboni, along with several members of her extended family, testified about their experiences regarding the property since about 2015. Ms. Balboni grew up in the vicinity, and returned in 2004 to her present property, on Long Pond Road, which directly abuts the parcel in question, and, with 400 feet of frontage, is the largest single abutter.
She described how she and her husband were initially supporters of the subdivision when it was first proposed, and how the Planning Board, from their perspective, appeared to deal reasonably with concerns around conservation.
“And we were encouraged to trust [that] the developer, Scott Spencer, would do as required” in terms of buffers, said Ms. Balboni. “Soon thereafter, every tree came down, right along the lot lines; in addition, our two boundary markers were destroyed when the road was cut in.” Despite assurances from Mr. Spencer, no buffers were ever put in, and indeed, the slope “continues to be bare to this day,” and excavation went up to the very boundary lines of the neighbors’ properties. Her household was compelled to erect fencing and to spend approximately ten thousand dollars on tree planting, she said.
( A view of the site; photo credit via Save The Pine Barrens. )
Flooding subsequently became a problem on the western side of Long Pond Road, according to Ms. Balboni; she said that to remediate this problem, the Town Department of Public Works dug a ditch that ultimately emptied into Jenkins Water Hole, a vernal pool.
She described a stream of machinery and trucks that worked on the site over the course of five years.
“He was able to outfox the system, set in place to protect the [inaudible], and the abutters,” said Ms. Balboni.
( Anne Balboni, of Long Pond Road, testifies to the Board; photo credit — Save The Pine Barrens. )
For Ms. Balboni, Mr. Spencer’s atittude seemed to be “it’s best to ask for forgiveness than permission. That permission should have come from the ZBA. To forgive entirely is not only to condone, but to approve of such practices and encourage [them],” she said.
“What our families and the abutters did wrong — and I’ve heard that this evening, you’re correct — we did not put all of our concerns in writing before coming before the board. Our concerns were verbally, and in hindsight, casually mentioned at the Town Hall as we were conducting our own business.”
“It’s not Ms. Sheehan, and [Save] The Pine Barrens who are disrespecting the Town, it’s the developer,” she said.
Next to address the Board was Precinct 2 Town Meeting Member and Attorney Richard Serkey.
“My only purpose in standing up today is to make a comment and a suggestion,” said Mr. Serkey. “I think the obvious hostility that you demonstrated, Mr. Chairman, towards the presenter does not speak well for the hearing process. She has a right to make her case, and you and other members of the Board should hear her out, and if you don’t believe that what she’s saying is credible, then you have every right to vote against her; but she had to beg and scrape in order to make her presentation tonight, because you were calling her a liar; and you were saying that she knew that what she was saying is false; and I don’t think that reflects well on the public process. So that’s my only comment and suggestion…. I’m saying what I’m saying most respectfully. I think that if a transcript of what was said here tonight, by you and by the other members of the Board were presented to a court, I think the judge might have difficulty concluding that you came to the hearing with an open mind.”
( Attorney and Town Meeting Member Richard Serkey, at the podium; photo credit — Save The Pine Barrens. )
Chairman Main responded to Mr. Serkey’s comments.
“Mr. Serkey, I have to agree with you on a lot of that,” he conceded. “But look at our point of view, too. And yes. I came in here angry about this, because there are some other extenuating circumstances that you aren’t aware of. So yes. I’m not happy with this whole thing, because — there isn’t much we can do with this, for a lot of reasons, and …I believe, Richard, you’ve been an attorney for a long time — you’ve represented me,” noted Mr. Main.
“Yes, that’s right,” said Mr. Serkey.
“Okay. And so I trust you,” continued Mr. Main, “and I will tell you that when somebody tells me that something is not a fact when it is, I get really ,really put off. And you’ve appeared before this Board many, many times, and you’ve always been prepared…. To say there was no permit for gravel removal is just not true. When something is said and it’s not true, what is it? It’s an untruth!” exclaimed Chairman Main.
“So…and you know that, and every attorney who practices before this board and especially land attorneys, they know that; that’s fundamental, that’s basic,” said Mr. Main.
Mr. Serkey replied.
“I don’t want to get into the merits,” Mr. Serkey replied, “but I don’t dispute the principle … that some gravel has to be removed from the site incidental to the building of five households. But there comes a point when the size of the amount of gravel that is being removed is disproportionate to the building of five houses,” said Mr. Serkey. “That’s all I’m saying.”
Mr. Main replied: “And again, Richard, we have experts that determine those things, and it’s not by satellites, and it’s not by supposition, and it’s not by estimation, it’s by transits, tape measures, measuring, walking the site — the petitioner has never even walked the site, so in my eyes, it’s supposition. We deal in facts, Richard, you know that — you taught me that! We have to have facts.”
Next up to comment was Town Meeting Member and the Precinct Twelve Chair Patricia Adelmann.
“I have been following Ms. Sheehan’s petitions. I’m very concerned about the amount of gravel removal in the town,” said Ms. Adelmann. “And I’m very new to the Zoning Board of Appeals procedures. I was wondering why this wasn't on PACTV or a Zoom meeting, and now I think it’s very obvious why, because of the behavior of the Chair and the way he treats the petitioner — no wonder you don’t want it televised. I am just appalled at the way the petitioner has been treated. I always thought that the Zoning Board of Appeals was non-biased, and today totally destroyed that notion. I’m very disappointed. Thank you for listening to me.”
( Town Meeting Member and Precinct 12 Chair Pat Adelmann; photo credit — Save The Pine Barrens. )
Ms. Adelmann’s testimony was followed by comments from Sharl Heller, President of the Southeastern Massachusetts Pine Barrens Alliance.
“I, too, have been following some of the ZBA hearings where Ms. Sheehan has brought in concerns about the way sand and gravel removal is monitored by the Town,” stated Ms. Heller. “In this case, it doesn’t look like there was enough sand and gravel removal on the subdivision permit to warrant monitoring, but I think we’ve seen enough evidence — I, too, am a believer that you can definitely tell elevations from the history of Google Earth compared to what we’ve seen today; plus you’ve heard testimony from the neighbors, who watched this process — I think there’s enough information here to warrant the ZBA to request an investigation by, I assume, … the Division of Inspectional services — and also, I would … question: why do you think Ms. Sheehan would go to all of this trouble, and all of the time to put together so much information, to meet with neighbors, to talk to people? You know that not everyone can afford this thousand dollars just to bring an appeal to this Board,” noting that she herself had once paid that thousand dollars to bring an appeal.
“It’s unconscionable that citizens who see things happening in Town, who want to bring these concerns to the Town, have to pay a thousand dollars to do that. I know that was a vote of the ZBA, at one point; but I would just ask in this case that you grant that waiver, and that you do what you can to verify, or prove false, Meg Sheehan’s claims, and the neighbors’ complaints, that there has been a lot of sand and gravel removal far beyond what was incidental,” said Ms. Sheller.
( Southeastern Massachusetts Pine Barrens Alliance President and Plymouth resident Sharl Heller addresses the Board; photo credit — Save The Pine Barrens. )
“I understand your concern about costing the Town money. We’re all concerned about Town expenditures; we’re all taxpayers,” said Ms. Sheller. “I understand your concerns, but I would [suggest] that we really need a fair hearing, and we need an investigation beyond tonight to determine what has happened on the site. And, every sand and gravel, every incidental project that’s approved should have a monitoring component to it,” said Ms. Heller.
Sam Chapin [ Correction: Mr. Chapin was initially incorrectly identified as Sam Jacob; the PCO regrets the error ], a member of the public who identified himself as an engineer and who serves as Chairman of the Wildlands Trust, spoke next.
“I’m a registered professional engineer with the Commonwealth of Massachusetts, and I’m quite disturbed by your contention that accurate elevation and volumetric calculations cannot be made using aerial photography and satellites,” said Mr. Chapin. “This is very much a current part of the practice, has been increasingly so for years; I have not worked for the petitioner in this case, but I just wish to vouch for the fact that accurate measurements and determination of area and elevations and volumes can be made and are being made routinely in the survey practice today through aerial photography, some of which comes from satellites. So I would hope this Board would just acknowledge this advancement in the practice of land surveying; that’s all.”
( Engineer Sam Chapin, at left, discusses contemporary survey methods; photo credit —Save The Pine Barrens. )
Chairman Main replied to Mr. Chapin:
“Sir, we do. And we see those kinds of things all the time, and we take them with a lot of faith that they are accurate, but what they are is they’re done by an engineer, and that engineer puts his stamp on it. I don’t see any of that information here with an engineer’s stamp on it. If you’re willing to do that, then we’re talking about an entirely different thing – and as an engineer, you know that: that without a stamp and stuff, it’s still not evidence,” said Mr. Main.
Anita Galletti, of Drew Road, commented next.
“I just want to put it out there as another witness to the incredible volume of sand and gravel that was taken out — as a person that walks those trails almost every day, and see happen over and over, over these years, it couldn’t be [just] that 5,000 cubic yards; it was way, way more. I’m just another witness. Thank you,” said Ms. Galletti.
The final member of the public to comment was Michael Scott, of Plymouth, who identified himself as a Town resident for over thirty years, as well as a member of New Hope Chapel.
“I just want to add that I’ve been to a lot of [inaudible] meetings, [and] I know that one of our primary purposes has been to … appease and to be good neighbors down there, so whatever happened before, I can’t speak intelligibly to that — I don't know,” said Mr. Scott.
( Michael Scott, Plymouth resident and member of New Hope, speaks to the Board; photo credit — Save The Pine Barrens. )
“But I know that a lot of the [inaudible]… non-factual information that’s been put forth on social media has been frustrating to me as well, as it appears to have been some of the members of this Board here. And all I know is that I heard Anne Balboni talk about that they would act with integrity and respect, and I believe that New Hope has put absolutely its best foot forward to do likewise,” he said.
With that, Chairman Main closed the public comment of the hearing, and offered Attorney Sheehan a chance to summarize her arguments, of which she availed herself.
Attorney Sheehan asked for the Town to simply have its own engineer produce its own estimate to check against that provided by Save The Pine Barrens.
“Why not have the Town Engineer, your own PE person, [determine]: is this in the ballpark, or not? Is this more than 4,920 cubic yards, like they said was going to be removed, or not?” she asked.
“I would request that you take that very seriously; this is credible information. I am not a liar,” said Attorney Sheehan. “I did not come in here intending to deceive or malign anyone. I researched this extremely carefully, I know this bylaw very well; I don’t make this up, and I carefully reviewed each and every fact that I stated today, and I reviewed the calculation of this model using a digital elevation model, based on the satellite that flew over the Earth, using radar, and compared this to the current elevations from that model. Thank you.”
At this point, Mr. Main closed the hearing, and the ZBA Members began to deliberate.
ZBA Deliberations and Reasoning
Mr. Peck laid the following motion on the table: “I will make a motion that we support the applicants’ demand for enforcement of the request made on October 20th, 2022, and the commissioners’ denial on Nov. 8th. I am making a motion to support the request to overturn.”
Zoning Board Clerk Edward C. Conroy, an experienced Plymouth attorney, asked Attorney Amy Kwessel, the Town Counsel, when the appeal period ends under the bylaw.
Town Counsel noted that under Chapter 40A §7 of the Massachusetts General Laws, if a complaint is made to the Building Inspector, he has fourteen days to respond; however, that is directory, rather than mandatory, under the law, according to Attorney Kwessel. If, after fourteen days, they are dissatisfied with the Building Inspector’s decision, they can then appeal, under Sections 8 and 15 of Chapter 40A; the complainant has 30 days at this point to appeal it to the Zoning Board of Appeals. Thus, the appeal deadline is approximately 44 days after the initial complaint was made.
“Unfortunately, the admission that there were numerous complaints cuts against the applicants’ case, because they knew that there were — or they felt that there were — violations, therefore, they should have followed through on their complaints in the appropriate way, and they didn’t, and that’s what the Gallivancase stands for,” averred Attorney Kwessel.
“And the Gallivan case specifically states in that case that you cannot miss your opportunity for a violation, and then come back and try and resolve that through the 40A Section 7 process. And so again, where they claim that they have seen these violations for seven years, it cuts against what they’re asking the Board now, particularly because there’s no earth removal happening right now,” she said.
Mr. Conroy asked Plymouth’s Building Inspector, Nick Mayo, when the last complaint he received was. Mayo replied that because he had only been serving as Building Inspector for approximately a year and a half, Attorney Sheehan’s complaint was the first that he had received in the matter. His understanding was that the complaints were lodged in prior years.
Mr. Conroy discussed his reasoning in the case before the Board.
“So, how I look at this case is that we have a statute of limitations; we have a situation where, in my opinion, there’s been more than 4,920 cubic yards taken out — to an egregious amount,” said Mr. Conroy. “I think that there’s been a real disservice here to the abutters. And it’s awful. [Inaudible] I think it’s a travesty…. We basically have 44 days from the date of the complaint. So looking at what we have in front of us… from my perspective, our hands are tied here; however, from seeing what’s gone on, I’m very disturbed [by] what’s gone on. This is happening a lot. And I think that, I know the site, and I think the abutters and this Town have been done a real disservice here,” he said.
“From my perspective, I have to vote to support the Building Inspector’s decision, because we have 44 days from the date [of the complaint], and when I asked the petitioner what basis can I support the ruling to overturn this, and I didn’t hear anything,” continued Mr. Conroy. “And so, I’m up here keeping an open mind, but I’m overwhelmed by the bylaw, and so I want everyone to know why I’m going to vote in support of the Building Commissioner’s decision.”
Zoning Board Member Michael Leary agreed with his colleague.
“I agree with everything Ed said. And that’s why I had asked If there was still gravel being removed at the time she made this application, I wouldn’t have a problem overturning it,” said Mr. Leary. “I do, because it should have been done in the past, when all this was happening, and it’s sad that it didn’t, I would have been on their side, especially for the homeowners — I think he did cross the line. The problem is, not at the time the enforcement was asked for. It was completed, done, and everybody’s on their way, the land was even sold. So, I just can’t see not supporting the Building Commissioner,” said Mr. Leary.
Mr. Peck, who laid the motion on the table, described his view of the case.
“I made the motion, but I will be voting in the negative, because there is no question in my mind that the prior developer was sleazy, and took advantage of it —”
“Careful, careful,” cautioned Mr. Main.
“I will withdraw that word,” Mr. Peck said, continuing: “but just: ‘took advantage of the situation’; I … agree that probably a lot more gravel than than he proposed was taken out; but ‘incidental’ is in the eyes of the beholder, and these were five house lots, when I walked this site, and I looked at the satellite images; even if there was more gravel than potentially needed, it was five house lots; so, I appreciate the heartfelt comments from Anne Balboni in particular, and others, but with my colleagues, I am going to vote in support of the Building Inspector.”
Mr. Main declared his desire to speak prior to calling the vote.
“And before we take the vote, I’m going to say something — yes — and … I probably should have … or — I should have handled it better,” said Mr. Main.
“Secondly, we know that David spoke of the prior owners’ ability to follow the rules, and it seemed to be rather hard for him; and yes, there’s probably a lot more yardage than what was originally in the permit,” he continued. “But one: our Director of Inspectional Services was not even employed with the Town when that all went on; and number two: unless we have documentation by an engineer and all of that, hearsay and speculation, and even satellite imagery and all of that, is wonderful, but it’s not evidence,” he said.
“We have to deal in facts, because inevitably if this ends up in court, the Judge is going to say ‘what [are] the facts?’... And thirdly, and more importantly — I hate gravel removal, and there are a couple of Board Members here that will tell you that I was on the bylaw committee that created the gravel removal bylaw, and I tried to [inaudible], because my feelings are — you cut trees down, and they’ll regrow; but when you take a hill out of this Town, it’s never coming back; and we deserve to leave our children and everybody as much as we can; and to that I agree with Ms. Sheehan, on a lot of this. But we still have to deal in facts," said Mr. Main.
“And the fact is,” he continued, that I don’t see where I can support this petition because there are definite bylaws that we have to go by, and if this does in fact end up being litigated further, … this Board has to be able to justify the decisions that we’ve made, and the decisions that we make are [adjudicatory] in nature, so the only ones that can overturn [are] the Courts; so we don’t take that lightly. And with that, I’ve probably said all I’m going to say. I’m going to take the vote,” said Mr. Main.
The motion, which was to support the request of the petitioner, Save The Pine Barrens, to overturn the Oct. 20th denial by the Building Inspector of an enforcement request regarding the Joshua Way property, was put to a vote.
The motion did not carry, with the Board voting unanimously in the negative.
Sheehan’s Letter to Plymouth Select Board
Subsequent to the meeting, on Jan. 9, Attorney Sheehan wrote a letter to the Plymouth Select Board, drawing its attention to Mr. Main’s conduct as Chair of the January 4th ZBA meeting.
“The ZBA is created by state statute, General Laws Chapter 40A, Section 12. It is the ultimate authority responsible for carrying out the purposes of the Town’s Bylaw which are to protect the public health, safety and welfare and the environment. See, Plymouth Zoning Bylaw, Article 1, Section 201-1. The ZBA is a quasi-judicial body and has a duty to act as an objective, unbiased, and professional adjudicator of matters before it,” she wrote.
“Do you consider what is shown on the video to be an objective, unbiased and professional ZBA chair?” asked Attorney Sheehan.
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The motion was phrased as a positive statement, a statement in favor, because one cannot move a negative, according to past Town Counsel (who subsequently became a judge, according to Chairman Main).
According to Attorney Kwessel, because the 14 day period in which the Building Inspector is to consider the complaint is directed, rather than mandated, by the law, that 44 days should not be considered hard and fast; for instance, if the Building Inspector were to have originally taken 16 days to make a decision, the total time for appeal would be those 16 days, plus the 30 day period of appeal to the ZBA, or, 46 days.
Gallivan v. Zoning Board of Appeals of Wellesley (2008).