CBI: Town Trying To Inflict Economic Harm Over Fish Pier Easement Dispute

By: Tim Wood

Topics: Chatham Bars Inn , Zoning/land use

The warehouse on Chatham Bars Inn avenue as seen from above. Owner Chatham Bars Inn is seeking to settle a lawsuit with the town by proposing conditions on continued use of the property as a storage and maintenance facility. CHRISTOPHER SEUFERT PHOTO

CHATHAM – The legal fight between the Chatham Bars Inn and the town – or at least the rhetorical battle – is escalating.

In a lawsuit filed in state Land Court Jan. 17, the Shore Road inn charged the town officials instructed then-Building Commissioner Justin Post to issue cease and desist orders in October for activities on its land in retaliation for the inn seeking damages for the town's eminent domain taking of CBI land at the fish pier.

“Since 2006 when [current inn owner Richard Cohen] purchased CBI, Chatham and CBI have been engaged in constant, acrimonious litigation,” the suit states. The October action was taken, according to the suit, “to retaliate against CBI and cause CBI economic harm” by preventing it from holding weddings and other events on a Claflin Landing parcel that has been part of its operation for decades.

The suit also claims that when it appealed Post's order, the inn was unable to get a fair hearing before the zoning board of appeals because of “palpable prejudice” by board members against its current owner. The suit quotes comments made by Chairman Robert Hessler and member David Nixon at a Dec. 15 hearing appealing Post's order regarding the Claflin Landing property.

The comments by ZBA members “demonstrate that the ZBA was unable to impartially and objectively consider the merits of this case or the arguments presented by CBI,” states the suit, filed by inn attorney Matthew Kozol of the Boston lawfirm Friedman and Atherton. The decision, Kozol continued, was based not on the merits of the case but was “the result of the town's desire to strike back at CBI and cause CBI harm because of other pending matters between CBI and the town.”

CBI and the town are involved in two other legal actions, both brought by the inn. In 2014, the inn sued the town over the taking of an easement over land it owns in the lower level parking lot of the municipal fish pier. Town meeting appropriated $100,000 for the easement to expand parking for commercial fishermen, but CBI claimed the amount was inadequate and it is owed “hundreds of thousands of dollars” in damages, according to the suit.

In October CBI issues subpoenas to members of the board of selectmen for depositions as part of the discovery process in the easement taking case. Kozol alleges that one week later, Post issued cease and desist orders for CBI land on Claflin Landing and Chatham Bars Avenue.

While the Claflin Landing order claimed use of the parcel for weddings and special events had expanded, Kozol states in the suit that the property is part of the inn's 22-acre complex and the use predates zoning. There was never an issue over use of the parcel, adjacent to the town landing at Claflin Landing, until abutter Kathleen McCullough hired an attorney to request zoning enforcement, he wrote. That came four months after McCullough's offer to sell her 9 Claflin Landing property to the inn for $3.4 million was rejected.

In its decision, the zoning board stated that the use of the property had been expanded and intensified over the past few years and included uses such as outdoor kitchens, food service trailers, video game trailers, rest rooms and entertainment that are not allowed in the residential district. Tennis courts on the land were destroyed by erosion years ago, and in a 2001 court decision, the property's nonconforming status was upheld but the inn's bid to rebuild the tennis courts was turned down, leaving the land vacant.

The suit cites comments made at the hearing which it states demonstrate that the ZBA was prejudice against the inn. It quotes Hessler as saying that the inn's current owner “doesn't seem interested in reaching compromises and wants to “throw the gauntlet down and I think that's wrong.”

Nixon is quoted as saying, “The idea that [CBI] can do whatever they want I think flies in the face of what the whole history of CBI's relationship, up to the current ownership, with the town has been.”

Saying the decision was made in bad faith, the suit asks the court to annul and reverse the decision and issue a stay order prohibiting the building commissioner from enforcing the cease and desist order. Four weddings and one event are booked for the property this year, along with one event in 2018, which should be allowed to go forward “to protect CBI from the harm it would suffer to its reputation if it had to renege on executed contracts which harm cannot be reduced to money damages,” the suit states.

The other legal action between the inn and town involves a ZBA decision last year ordering the inn to stop using the former warehouse building on Chatham Bars Avenue. After Post order the inn to stop using the building, the zoning board found that the nonconforming commercial use of the property had lapsed after more than two years of inactivity. The inn appealed the case to the state land court. In October Post once again ordered the inn to stop using the property; the inn filed another appeal which is scheduled to be heard by the zoning board today (Jan. 26). The court case over the previous ZBA decision is on hold pending the hearing and further talks between the town and inn over the future of the property.

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