A Marshfield resident has filed a lawsuit against five members of the town’s Zoning Board of Appeals over a decision concerning the expanded runway at Marshfield Municipal Airport.
The lawsuit, filed in Plymouth Superior Court by attorney Sean Beagan on behalf of John Whippen, deals with the Zoning Board’s decision to decline issuing a cease and desist order for use of the airport’s recently expanded runway, which extends into a residential suburban zone.
Whippen is asking that the court reverse or annul the Zoning Board’s decision, as well as order that the portion of the runway that extends into the residential zone can’t be used because it violates the town’s zoning bylaws.
He is also seeking a declaratory judgment that the Zoning Board violated his rights as a citizen and taxpayer by allowing airport activities in an area they are not permitted in.
Five members of the Zoning Board – Chairman Joseph Kelleher, Heidi Conway, Mark Ford, Francis Hubbard and Lynne Fidler – are listed as the defendants in the suit.
Marshfield Town Counsel Robert Galvin said he didn’t think the lawsuit had any merit.
"The timeframe for such an appeal has long since passed," he said.
The town will fight the lawsuit, however, he said.
"The town will vigorously defend the decision of the Board of Appeals and seek to have it dismissed at the earliest opportunity," Galvin said.
Beagan declined to comment on the lawsuit.
The runway’s extension caused Whippen, whose home is in the flight path, to suffer injuries from increased jet traffic and jet fume pollution, noise, and diminution in property value, according to the lawsuit.
Galvin disagreed with that notion.
"I don’t think that Mr. Whippen is an aggrieved party in the way that term is defined in the law," Galvin said, adding that he didn’t think Whippen had "suffered any legal harm" that would have allowed him to appeal in the first place.
In September, Whippen and Beagan had approached the Zoning Board to appeal an earlier decision from Building Commissioner Gerald O’Neill not to investigate whether work on the airport’s runway was expanding beyond the Airport zone into the R-2 residential suburban zone.
Through Beagan, Whippen, individually and on behalf of the Marshfield Citizens Against Airport Pollution group, had also asked the Zoning Board to determine whether the shifting of the runway 190 feet to the southwest had been done without correct zoning approval.
The expansion was part of the airport’s $15.43 million runway expansion and improvement project, completed this spring. Through the project, the runway was expanded from 3,000 feet to 3,300 feet for landing. An additional 300 feet of paved area was added to both sides for safety purposes, allowing 3,600 feet for takeoff and 3,900 feet for emergency situations.
The board voted unanimously to deny his appeal on Sept. 23, and filed the decision with the Town Clerk on Oct. 7.
Whippen’s argument is rooted in a June 2011 zoning decision to grant the Marshfield Airport Commission a special permit to expand airport’s runway to the southwest near Woodbine Road. That work was approved for the airport zone and the B-2 business-highway zone.
During the Zoning Board meetings in September, Galvin said that despite that zone error in the special permit, the project was still described with the proper property addresses.
"It said on what properties it was going to be on," Galvin said of the permit. "That’s all it needs."
The Zoning Board’s decision also states that the previous board indicated that listing B-2 was a clerical error, and notes that no one challenged the board’s 2011 decision within the allotted 90-day time period after it was filed.
The lawsuit argues that the Zoning Board’s decision fails to acknowledge that according to town bylaws, no special permit for airport facilities is allowed in the R-2 zone, and that the only way the runway could have been properly expanded was to rezone the land at Town Meeting.
The lawsuit also says that the Zoning Board acted beyond its authority by denying Whippen’s appeal and allowing work in a zone it was not permitted, failing to acknowledge that the special permit did not grant permission for work in the R-2 zone and allowing airport and airport facilities to be constructed in that zone.
It further claims the airport land that already existed in the residential zone was not used for airplane activity, meaning there was not, as town officials had previously said, a pre-existing, non-conforming use in that zone.
The Zoning Board’s decision to deny Whippen’s appeal, though, said that the airport commission’s 2011 application showed proposed work on "a so-called runway safety area, which was in use by the airport for many years" in the R-2 zone.
- Source: http://marshfield.wickedlocal.com
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