Zoning Board Upholds Building Commissioner On Airport Permits

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By: James Kinsella
Published: 04/15/11

The Barnstable Zoning Board of Appeals on Wednesday unanimously backed the town building commissioner in his decision to issue building permits last July for the new passenger terminal and air traffic control tower at the Barnstable Municipal Airport in Hyannis.

In an appeal, Botsini-Prime LLC of Yarmouth had challenged the issuance of the building permits.

The company, which owns a parcel leased by a Wendy’s restaurant near the Airport Rotary, says proposed changes in the airport’s access road will hurt its interests.

Botsini-Prime further argues that the current road design violates a prior agreement between the company, the town and the Cape Cod Commission.

In a $30-million improvement project, the airport started construction on the new terminal and tower as a prelude to building the new access road.

In its appeal, Botsini-Prime asked that the building commissioner revoke the building permits.

Zoning board members, however, said Barnstable Building Commission Thomas Perry acted in good faith to approve the building permits.

Board members also questioned whether Botsini-Prime had acted soon enough to gain the legal standing to seek the revocation.

Botsini-Prime continues to wage legal battle against the proposed access road on another front: a lawsuit in Massachusetts Land Court against the airport commission, the Cape Cod Commission and the Town of Barnstable over issues related to the airport’s proposed access road.

The trial opened last month in Boston.

The judge in the case, Gordon Piper, has heard four days of testimony.

Judge Piper now plans a viewing of the area in question, likely next month, before continuing the trial.

At Wednesday night’s meeting, the zoning board considered the question of whether the building commissioner should have issued building permits for the passenger terminal and the air traffic control tower.

In a December 15 letter, a Boston attorney representing Botsini-Prime, Darah L. Schofield of Nutter, McCLennen and Fish, said Mr. Perry should not have granted the building permits for the structures because the Cape Cod Commission had not yet issued a final Development of Regional Impact permit for the airport’s improvement project.

In a December 29 letter, Mr. Perry said he issued the permits by relying on an analysis contained in a July 1 letter from the Cape Cod Commission.

In that letter, the commission stated it had no objection to the issuance of building permits for the airport-related improvements because the improvements had been approved by the commission in decisions that were final.

“If I didn’t have the OK from the commission, I never would have gone ahead with it,” Mr. Perry said at Wednesday’s hearing.

In January, Botsini-Prime appealed Mr. Perry’s refusal to revoke the permits.

On March 9, the board held a hearing on the appeal. The board decided to seek a legal opinion from the Barnstable Town Attorney’s office and continued the hearing.

On Wednesday, Barnstable Town Attorney Ruth J. Weil delivered the legal opinion.In that opinion, Ms. Weil states that Botsini-Prime did not act quickly enough under the law to appeal the building commissioner’s decision to the zoning board.

She said the appeal had to be taken within 30 days of the issuance of the permits, which were issued July 9.

But the appeal did not come until December.

Ms. Weil further stated that Botsini-Prime was aware within the 30-day appeal period that the building permits had been issued, given the company’s filing of the Land Court lawsuit on July 28 challenging the issuance of the building permits.

“You don’t have two bites at the apple,” she said at Wednesday’s hearing. “It was too little, too late, in other words.”

Eliza Z. Cox, a Nutter, McCLennen and Fish attorney based in Hyannis representing Botsini-Prime, said the legal precedent cited by Ms. Weil, a case known as Gallivan v. Wellesley, did not apply, given that the permits issued by Mr. Perry were not valid in the first place.

Ms. Cox said Botsini-Prime further did not have sufficient notice of the fact that the building permits had been issued.

Inquiries of the town on July 15 and again on July 20 did not confirm that any permits had been issued.

In response to a question from zoning board member George Zevitas, Ms. Cox said Botsini-Prime did not know whether permits had been issued, although company officials could see construction had started on the new air traffic tower.

Board member Michael Hersey, however, questioned whether Botsini-Prime even had standing to bring the appeal, given that the company had filed its lawsuit in July but had not challenged the issuance of the permits until December.

Zoning Board member Brian Florence proceeded to make findings, approved 5-0 by the board, that Mr. Perry had acted fairly and judiciously in his decision to grant the permits, and that Botsini-Prime lacked standing to bring the appeal.

The board then voted 5-0 to uphold the building commissioner in his decision to issue the permits.

Ms. Cox said Botsini-Prime is considering whether to appeal Wednesday’s decision to superior court or state land court.

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