A superior court judge has thrown out a lawsuit filed in fall 2014 by a Marshfield man seeking to block use of an expanded stretch of runway at the town's municipal airport.
Judge Robert Cosgrove ruled that resident John Whippen was years too late in appealing a 2011 special permit that allowed the airport to expand the runway into an area zoned for suburban housing.
The recent ruling could mean an end to legal issues tied to Marshfield Municipal Airport and an expansion that raised several concerns among its property neighbors.
“This case is over, unless they appeal,” Marshfield Town Counsel Robert Galvin said.
Sean Beagan, an attorney representing Whippen, said this week no final decision had been made yet regarding an appeal.
Whippen filed the lawsuit after the board denied his request to enforce his interpretation of zoning law and block the Marshfield Airport Commission from encroaching on a residentially zoned area. He named five members of the town’s Zoning Board of Appeals—Chairman Joseph Kelleher, Heidi Conway, Mark Ford, Francis Hubbard and Lynne Fidler—as defendants.
He asked the court to reverse or annul the board’s decision and order that the part of the runway extending into the residential zone can’t be used because it violates the town zoning bylaws, according to previous Mariner reports.
Whippen also sought a declaratory judgment that the board violated his rights as a citizen and taxpayer by allowing airport activities in an area in which they’re not permitted. The town had filed a motion to dismiss that count. Following a motion hearing in January 2015, the court sent out a notice allowing the town's motion to dismiss in February of that year, according to previous Mariner reports.
He had argued the runway expansion was never properly permitted because the board’s 2011 decision on the project allowed work in an area zoned "B-2" when it should have read "R-2," indicating suburban residential zoning. The board insisted that the "B" was a clerical error.
In his decision, Cosgrove ruled that the error was not significant enough to invalidate the permit and, more importantly, that Whippen's appeal of the 2011 permit was years too late. Under state law, anyone wishing to appeal a special permit has 20 days to do so in most cases or 90 days if the issuing board has made a procedural or notification error.
“He basically was attempting to attack the 2011 special permit by requesting zoning enforcement in 2014. The court ruled that there was a scrivener's error in the notice of the decision,” Galvin said, adding, “The airport built what was shown on the plans, specifically. The plans all showed the work being done in the R-2 zone, not the B-2 zone.”
He said July 14 he believes the wording of the decision may discourage Whippen from appealing it.
"I think it would be unlikely they would succeed, in light of what the court ruled," Galvin said.
Whippen's lawsuit did not affect work on the runway expansion project, which was completed in July 2014. The new runway measures 3,900 feet by 100 feet and replaces the original 3,000-by-75 foot stretch. Airport officials say the expansion has made the runway safer for pilots.
The project had long been opposed by a group of neighbors, calling themselves Marshfield Citizens Against Airport Pollution, who said they feared it would increase the noise and fumes from jets that they already contend with. They say the runway work has also damaged marshes around the airport.