The town has filed a motion to dismiss part of a resident’s lawsuit against members of the
town’s Zoning Board of Appeals over a decision about the runway
expansion at Marshfield Municipal Airport.
Attorney Sean Beagan
filed the lawsuit on behalf of John Whippen in Plymouth Superior Court
on Oct. 23. The lawsuit deals with the Zoning Board’s decision earlier
this fall not to issue a cease and desist order for use of the airport’s
expanded runway, which extends into a residential suburban zone.
Beagan
said that an opposition to the town’s motion to dismiss had been filed,
and that a hearing on the matter is set for Jan. 22 in Plymouth
Superior Court. He declined to comment further.
In the lawsuit,
Whippen asked that the court reverse or annul that decision, as well as
order that use of the portion of the runway that extends into the
residential zone be prohibited because it violates the town’s zoning
bylaws.
In a second count, Whippen is seeking a declaratory
judgment that the Zoning Board violated his rights as a citizen,
taxpayer and property owner by allowing airport activities in an area
that does not permit them.
Town Counsel Robert Galvin said that the town filed a motion to dismiss the declaratory judgment count.
“Legally, he asserted something that he has no right to assert,” Galvin said of Whippen.
Galvin
said the town’s motion asserts that Whippen is not entitled to seek a
declaratory judgment independent of his zoning appeal – the first count
of the lawsuit – under Massachusetts General Law Chapter 40A Section 17.
He
said the town asserts that Whippen’s appeal under that part of the
lawsuit is the “exclusive remedy available” to legally challenge a
decision of the Zoning Board of Appeals.
The case is currently in
discovery, Galvin said, with Beagan set to provide the town with
documents and answers to questions pertaining to the lawsuit by Dec. 19.
The
lawsuit lists five members of the Zoning Board of Appeals – Chairman
Joseph Kelleher, Heidi Conway, Mark Ford, Francis Hubbard and Lynne
Fidler – as defendants.
The suit traces to September, when
Whippen and Beagan had a hearing in front of the Zoning Board to appeal
an earlier decision from Building Commission 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 shifting the runway 190 feet to the southwest had been
done without correct zoning approval.
The runway expansion was
part of the airport’s $15.43 million runway expansion and safety
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.
Whippen’s home is in the flight path for the airport,
according to the lawsuit, and the runway expansion caused him to suffer
injuries including increased jet fume pollution and jet traffic, as
well as a diminution in property value.
The board voted unanimously to deny Whippen’s appeal on Sept. 23, and filed the decision with the Town Clerk on Oct. 7.
Whippen’s
argument stems from 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.
The lawsuit states 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.
The only way the runway could have been properly expanded was to approve rezoning the land at Town Meeting, the lawsuit said.
The Zoning Board’s decision said that the previous board indicated that identifying B-2 as the zone was a clerical error.
Galvin said previously that the project was still described with the proper property addresses, despite the zone error.
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.
- Original article can be found at: http://marshfield.wickedlocal.com
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