CHATHAM – A state Land Court justice has ruled in favor of the town in a suit brought by Chatham Bars Inn over the 2014 taking of an easement at the fish pier.
The suit involved the terms of a 1956 deed from the inn which gave the town ownership of a 7,130-square-foot parcel south of the fish pier packing building, at the Shore Road facility's lower level, an area known as the south jog. CBI claimed use of the area for commercial offloading of fishing boats violated terms of the deed, which prohibited “industry or commerce.” After town meeting voted to take an easement over adjacent land CBI still owns in order to expand parking for commercial fishermen, the inn challenged the action, claiming that the 1956 deed gave it authority to ban commercial fishing from the area.
Ruling from the bench, Land Court Justice Gordon H. Piper dismissed CBI's claim on Jan. 25, providing the town the last in a series of victories in the case.
“They were holding this over our head,” Special Town Counsel Jay Talerman said of CBI's claim, which threatened to shut down use of the south jog area by commercial fishermen. The waterfront bulkhead and dock are heavily used for offloading of commercial fishing boats as well dockage and a pickup location for charter fishing boats, tours and water taxis.
The court had previously dismissed other elements of the suit, and last week's decision came after more than a year of “legal wrangling” including review of 50 years of documents and two hours of oral arguments, said Talerman. Pipe's ruling was “a sweeping rebuke of CBI's claim” and established that the inn had no residual right to control activities at the pier.
“It's as good a result as we could have hoped,” Talerman said. “Everyone put a lot of effort into getting us the information we needed for this. It was a big team win.”
Calls to CBI attorney Matthew Kozol seeking comment on the decision were not returned.
CBI still has an outstanding lawsuit against the town over the taking, claiming the easement is worth more than the $100,000 paid by the town. The case has yet to be scheduled for trial in Superior Court, Talerman said.
The town has been “playing defense” against CBI, which has filed numerous suits against the town in recent years, he said. He pointed out that the town attempted to negotiate over use of the lower level land, where parking was allowed for years under agreements between the town and previous inn owners. Officials decided to seek the easement because the parking is necessary to ensure the continued viability of the town's commercial fishing fleet, the largest on the Cape.
CBI is a “cherished institution and a remarkable resource” for the town, Talerman said, but the current owner's push to expand the nonconforming use, located in a residential district, is running up against zoning and environmental restrictions.
In a lawsuit filed against the zoning board of appeals last month, CBI charged that town officials were deliberately trying to inflict economic harm on the inn because of its challenge to the easement taking. Talerman rejected that assertion.
“I have every confidence knowing [town officials] as I do that they make decisions in matters before them in a fair and forthright way,” he said.
In the taking case, CBI sought 13 depositions from town officials, including members of the board of selectmen, Town Manager Jill Goldsmith, Community Development Director Deanna Ruffer, former Assessing Director Andrew Machado and the town's property appraiser, Talerman said.
Piper stated that the 1956 deed's blanket reservation of rights was too vague, according to Talerman, and would have expired 30 years after it was issued. The ruling eliminates any claim CBI has over the south jog area, he said.
CBI has another lawsuit pending against the town related to the use of the former bowling alley and warehouse on Chatham Bars Avenue owned by the inn. The zoning board previously upheld an order by then-Building Commissioner Justin Post that the inn stop any use of the building because the previous use of the building as storage had been abandoned. In October Post issued another cease and desist order regarding use of the building, which CBI appealed to the zoning board.
A hearing on that appeal scheduled for last Thursday was continued until May 25 at the request of CBI attorney Kozol.