33 Pheasant Lane

33 Pheasant Lane in East Falmouth

Behind the newly built facade of a two-story house on Pheasant Lane is decades of debate over zoning requirements.

Daniel C. Maclone pulled permits for the build in December to construct the three-bedroom house. He purchased the lot a month later, in January. Before Mr. Maclone, none of the previous owners were able to pull permits to build on the quarter-acre lot.

The lot has a complex history. In 1969 it was a 10,000-square-foot lot listed as Lot 13 on a subdivision plan. At the time, it conformed to zoning bylaws. In 1979 an approval not required plan, endorsed by the planning board, merged the lot with another, adding 1,540 square feet.

Despite this increase in size, the newly merged lot still did not meet the minimum lot size for the zoning district. Only a year earlier, in 1978, minimum requirements had increased from the earlier 10,000 square feet. At 11,540 square feet, it was only 77 percent of the minimum lot size in 1979.

Past owners attempted to obtain special permits and variances to build on the lot, but to no avail.

In 1991 a company called Mildrex Inc. applied to the Falmouth Planning Board for a special permit to build. The planning board denied the permit.

In 1994 the owner of the lot applied to the Falmouth Zoning Board of Appeals after being denied building permits by the building commissioner at the time. The zoning board of appeals denied a variance and rejected an appeal to overturn the building commissioner’s denial of permits. At each refusal from a town board, the owner filed appeals in land court. Those appeals remain unresolved.

The lot changed hands several times leading up to this year. Mr. Maclone purchased the property in January for $165,000 under the name Pheasant Lane LLC.

By early February the land had been cleared of trees and footings were poured, according to a timeline of events provided by neighbor and zoning board of appeals member Edward Van Keuren.

Mr. Van Keuren bought his house on Pheasant Lane more than 30 years ago. At the time of purchase he was told that two lots on Pheasant Lane were not buildable—33 and 21 Pheasant Lane.

“When I saw they started digging, that’s when I went to [building commissioner] Rod Palmer and said, ‘You’ve got a problem here,’ “ Mr. Van Keuren said in an interview Wednesday, July 3.

A summary of the situation from Town Counsel Frank Duffy, on file with the zoning board of appeals, detailed the events that followed. A little over a week after Mr. Van Keuren went to see Mr. Palmer, the building commissioner spoke with Mr. Maclone at 33 Pheasant Lane. He did not order work to stop.

“The builder voluntarily agreed to stop work at that time,” Mr. Duffy wrote.

In March, Mr. Duffy met with the attorney representing the builder, Jessica Sommer. “I gave her all the information that was available at the time and informed her that her client was at risk if he proceeded to build,” Mr. Duffy wrote.

Work continued.

Mr. Van Keuren said he then went to the building commissioner as a private citizen and filed a request for enforcement. The building commissioner did not take any action, and Mr. Van Keuren filed an appeal.

That appeal will be heard before the zoning board of appeals on July 18. Mr. Van Keuren will recuse himself from the board to represent himself in the appeal.

Building Commissioner Rod Palmer said he relied on the applicant’s submission when issuing the building permit. The submission included the building plans, site plan, and chronology of the lot.

“That chronology, that information, that’s furnished to the building department,” he said. Mr. Palmer said he believed the lot was buildable and confirmed that he chose not to issue a cease-and-desist work order.

Mr. Maclone said he had bought the property from a private owner and it had been taxed as a buildable lot. He would not have built on it if he did not think it was a buildable lot, he said.

The developer remains “at risk.” The zoning board of appeals could enter a finding that the building commissioner should have taken action and requested issuance of a stop work order. If Mr. Maclone does not agree with the finding, the case could be appealed in land court.

The exterior of the property appears finished. A “sale pending” sign was added to the initial real estate sign last week. On Wednesday, the real estate agent for the property, Patty Connolly, confirmed that sale of the house is pending.

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