Zoning Board Denies Rt. 6A Building Permit Appeal

ORLEANS – The zoning board of appeals last week sat ready to entertain an appeal of a decision from the town’s building inspector not to issue a building permit to the owner of an office building on Route 6A. But neither the owner nor his attorney were in attendance at the Aug. 7 hearing.

That ultimately was reason enough for the board to not only deny Perseverance Coast LLC’s request for a continuance, but to deny the appeal and subsequent applications for a special permit and variance to continue performing work on the building.

In April, Building Commissioner Davis Walters issued a stop work order for the property, where work was being performed on the building’s third floor without the proper permits. He told the planning board in May that the building’s owner, Donald Cameron, retroactively applied for a building permit to perform the work, but he denied the permit application due to the presence of storage trailers at the rear of the building, which are not allowed on the property under local zoning.

Cameron appealed Walters’ decision, and the board held its first hearing on the appeal in July. The hearing was continued to last week.

Cameron’s failure to appear Aug. 7 rankled zoning members, with some seeing his absence as evidence of his unwillingness to work with the board toward a solution.

Town Counsel Michael Ford said he received a letter ahead of the hearing from Cameron’s attorney, James Norcross, requesting a continuance because Cameron is seeking new legal counsel. The letter further stated that his new counsel, William Henchy, would not be available for the Aug. 7 hearing.

But zoning member Matt Cole said there was little excuse for the absence, especially given the option to participate in the hearing remotely.

“I think there’s been ample opportunity to show up,” he said. “We’re in hybrid meeting format. Astronauts in outer space can connect to the internet.”

Cameron is also before the conservation commission for a notice of intent to allow the trailers, which are situated in a wetland area. Walters said that Cameron also failed to appear for a site visit on the property with the town’s conservation agent.

Attorney Ben Zehnder, speaking on behalf of the Community Development Partnership, which occupies office space on the building’s first floor, argued that the absence of Cameron and his attorney was a strategic attempt to draw out the appeal process. That poses a problem for his client, he said, noting that a leak in the building has forced the partnership out of the building for the time being.

“I think it’s a discourtesy to the board,” he said. “I think it’s calculated to buy more time.”

Others argued that the board should allow Henchy the courtesy of a continuance to allow him to get up to speed on the appeal. Walters added that the storage containers at the rear of the property do not pose any public safety risk.

“As is, I don’t know that there’s any peril in giving a little more time,” he said.

But the board ultimately registered a unanimous vote to deny the request for a continuance.

“I just question the good faith, I guess, of the [request] to continue,” Zoning Chair Gerald Mulligan said.

The board then deliberated whether or not to uphold Walters’ decision in April not to issue the building permit. The building is located in the general business zone, which does not allow storage trailers by right without a variance or special permit. Cameron secured neither before moving the trailers onto the property, leading Walters to deny his building permit application.

Mulligan said the appeal filed with the board argues that the trailers are not for storage. Were they for storage, it reads, there are storage trailers situated in other districts throughout town. Disallowing trailers on the 260 Route 6A property would be “arbitrary and capricious,” the appeal states.

Board member Austin Higgins said that the town’s zoning bylaw allows for storage trailers for wholesale businesses and for the sale of fishing bait or shellfish by special permit, but only in the town’s industrial district. Trailers are also allowed as accessory structures in the industrial district, he added.

“There’s no specific call out for general storage in the use table,” Higgins said.

The board voted unanimously to deny the appeal, but Cameron also filed applications for both a special permit and a variance to allow the trailers to be considered if Walters’ decision was upheld. But the absence of Cameron and his attorney gave the board grounds to deny both, Ford told zoning members.

“The special permit [request] anticipates that there will be evidence provided to the board upon which the board can make a decision on whether to grant a special permit,” he said. “There is no one here, so the board would be within its authority to simply deny the special permit, and you could do the same with the variance.”

The question before the board then became whether to deny the special permit and variance applications with or without prejudice. A vote “with prejudice” would disallow the applicant reapply to the board for either for two years. A vote “without prejudice” would allow the applicant to immediately reapply.

The board voted 4-1 to deny both applications with prejudice, with Higgins voting against in both cases. While the with prejudice vote opens up the potential for the board’s decision to be appealed in court, board member Lynne Eickholt said she favored that approach.

“I find the whole process they have followed very objectionable,” she said, noting Cameron’s decision to site the trailers without first coming before the board.

Reached by phone Friday, Henchy said the request to continue the hearing was not an attempt to draw out the process before the zoning board, but rather to allow him time to learn more about the appeal.

“The request for a continuance was to allow me to get up to speed and see if this can be deescalated and resolved,” he said. “But the board took an action, and I’ll have to consult with my client about how to proceed moving forward.”

In the meantime, Walters said he intends to issue an order to Cameron to have the trailers removed from the property and to institute daily fines for non-compliance with the order if necessary.

Email Ryan Bray at ryan@capecodchronicle.com