33 Pheasant Lane

33 Pheasant Lane in East Falmouth

The status of a newly built single-family home for sale on Pheasant Lane remains in question after a Falmouth Zoning Board of Appeals hearing last night, July 18.

Daniel C. Maclone pulled permits to construct a three-bedroom home at 33 Pheasant Lane in December through a purchase and sale agreement. He started construction on the lot after formally purchasing it mid-January.

Edward Van Keuren, a neighbor and member of the zoning board of appeals, noticed the lot was being clear-cut in January. He said that in the 1980s when he bought his home on Pheasant Lane, his real estate agent had noted that 33 Pheasant Lane was not build-able.

He visited the building commissioner three times to express concern that permits had been pulled on a lot that had been denied a variance and special permit to build upon in the 1990s. Building commissioner Rod Palmer declined to issue a stop-work order or a cease-and-desist work order.

Before the board of appeals, Mr. Palmer reiterated the fact that the building department relies on what is submitted by applicants in order to determine whether or not a lot is “protected” and build-able. “There may be other information out there that we aren’t aware of but for the purposes of issuing a building permit, we analyze what’s there,” Mr. Palmer said.

He added that he issues more than 7,000 building permits each year. “I received... a hundred building permit applications for new houses this year. Do I seek out history of that land... no I don’t,” Mr. Palmer said.

“We receive phone calls and complaints on a daily basis... it’s not uncommon for neighbors to ask us to stop a project. It’s their responsibility to file an appeal. It’s not mine,” Mr. Palmer said. He stood by his decision to issue the building permit.

Mr. Van Keuren, the appellant, said it took him minutes to find evidence that the planning board and zoning board of appeals had denied similar proposals to build a single-family house on the lot in the 1990s. He said he brought Mr. Palmer evidence on February 4 that town boards had denied permits to previous owners.

He consulted Mr. Palmer two more times. On his third visit to town hall, he said Mr. Palmer was on his way to see town counsel, Frank Duffy. In an email on file with the zoning board of appeals, Mr. Duffy wrote that he advised against issuing a building permit. The original owners of the lot in the 1990s had sued the zoning board of appeals and planning board over their decisions to deny special permits and variances. Those lawsuits were never resolved.

“I thought we were working together to get this project stopped,” Mr. Van Keuren said, “We’re here today, 23-and-a-half weeks later from when we started this.”

On May 21, Mr. Van Keuren submitted an appeal of the building commissioner’s inaction. He recused himself from the board in order to do so. Members of the zoning board of appeals executed individual disclosures under Massachusetts general law affirming their impartiality in the matter.

Jessica C. Sommer, an attorney representing the developer, said his appeal was too late. An appellant has 30 days to file an appeal after he or she receives notice of a project, she said. Mr. Van Keuren did not file a formal appeal within that time frame, meaning that he did not have standing, Ms. Sommer said.

“The case law is very clear on this point... that you cannot move forward and hear an underlying appeal if the appellant does not have standing,” Ms. Sommer said.

The zoning board of appeals opted to continue the hearing in order to receive an opinion from town counsel in regards to standing. Robert Dugan, a member of the board, noted that the board would like to see the documents originally submitted to the building department, the title search history for the property, any notations made by the previous building commissioner concerning the lot, and where denials for permits or variances were recorded.

Mr. Palmer said it would take him a few days to provide copies of the documents on file in the building department. The board continued the matter to August 22.

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