Thursday, December 18, 2014

Marshfield seeks to dismiss part of resident's airport lawsuit: Marshfield Municipal Airport (KGHG), Massachusetts

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.

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