During a Mashpee Zoning Board of Appeals meeting on December 11, a resident appealed the decision of Mashpee Building Commissioner David Morris to issue an occupancy permit to a commercial business. The board was tasked with deciding whether the commercial occupant, located at 68 Mercantile Way, has met specific conditions laid out in the special permit.
Eric B. Clapper, who lives at 10 Sugar Pine Circle in Mashpee, abuts the property on Mercantile Way. Since the property has been developed, Mr. Clapper said that conditions laid out in the special permit have not been enforced, which has negatively impacted his day-to-day experiences at his home.
In 2022, a special permit was granted for a commercial property, and an occupancy permit was issued for 68 Mercantile Way by the building commissioner. The property comprises eight contractor bay units. Before the special permit was granted, however, Mr. Clapper and other residential attended an abutters’ meeting on July 27, 2022, where abutters discussed their concerns that the new business could potentially add unwanted sounds, lights and noise to the neighborhood. To ease the abutters’ concerns, the board decided that guidelines would be written into the special permit.
“When we met at public hearing, we presented our concerns about the impact of the commercial development on its residential neighbors,” Mr. Clapper said at the zoning board meeting on December 11.
Following the abutters’ meeting, a special condition, condition number six, was created, which specifically addressed neighbors’ concerns over potential light or sound pollution.
Condition No. 6
Last week’s appeal focused on condition six of the special permit. ZBA chairman Ronald S. Bonvie read aloud condition six of the special permit, which notes that in order to create a “buffer zone” to mitigate light and sound pollution from the business, the developer was ordered to “install white pine trees eight feet apart, eight feet tall, along the North border,” Mr. Bonvie said.
Associate member Charlie P. Reidy III announced that basis of Mr. Clapper’s appeal was arguing against the “building commissioner’s decision to issue a certificate of occupancy, based on condition number six of the zoning board of appeal’s decision.”
“I’m before you to appeal the building commissioner’s decision to issue an occupancy permit to the abutting commercial property, located at 68 Mercantile Way, on the grounds that the commissioner did not enforce the language of condition six of the special permit issued on July 27, 2022,” Mr. Clapper told the board.
Mr. Clapper also said that he had previously called the building commissioner to make him aware that condition number six was not being followed. “We brought this non-compliance to his attention prior to him issuing the occupancy permit,” he continued.
However, he elaborated that no actions were taken by the zoning board or the building commissioner after their conversation. Instead, Mr. Clapper said that he was told he would have to file an appeal against the building commissioner’s decision, in order to have the issue discussed in a zoning board of appeals meeting.
“As a result, I’m forced to come to you at my expense, to explain a discrepancy that is not my responsibility to do,” Mr. Clapper said.
Mr. Clapper added that he was not able to file the appeal as an abutter of the business, using his home address, but instead was told he needed to file the appeal for the commercial address of 68 Mercantile Way. He told the Enterprise that he was charged around $350 to file the appeal.
“We are forced to endure continued noise, air and light pollution from this development,” he said. “This has created a negative effect on our property values and severely affects our quality of life.”
Tension Over Tree Spacing
Because some trees are spaced as far as 22 feet apart, Mr. Clapper said, his property now has an unobstructed view of a commercial dumpster.
“Voting against this appeal would be voting against your own regulations, and I request that you appeal the building commissioner’s decision,” Mr. Clapper said, “and to require the developer to plant trees a max distance of 8 feet [apart] along the entire North border.”
Jeanne Clapper, Mr. Clapper’s wife and resident of 10 Sugar Pine Circle, also spoke to the board during the appeal.
“I’ve owned this property jointly with my husband since 2009. As a residential homeowner, it makes no sense to me that we, as Mashpee residents, have the burden to file the appeal against Mr. Morris,” she said. “As Mashpee residents, we were required to pay the commercial rate of approximately $350 to file this as an appeal, rather than what it is: non-compliance to a legal, agreed-upon condition.”
Ms. Clapper emphasized that she and her husband had made several attempts to address the noncompliance of condition six before it was brought to an appeal.
“We reached out, we spoke to you, we informed you,” she said. “What has occurred here is obviously detrimental to our property and quality of life, and I wonder whose interest does the town protect?”
In response, Mr. Bonvie explained that he was asked by the town manager to examine the lot.
“I went out to the property. I was asked to look at the trees for compliance of number six,” he said. “I am of the opinion of the following: there are certain trees farther than 8 feet apart.”
Yet, Mr. Bonvie added, “I felt that it was in compliance of the plan.” Mr. Bonvie later clarified that he did not measure the trees, but said that in many cases, the trees were more than 8 feet apart “because there were existing trees there.”
“Negative,” Mr. Clapper countered. “This is a newly developed buffer zone. There are no existing trees there… you’re not stating facts, sir.”
“Show us the pictures,” Mrs. Clapper said while her husband spoke. “Show the public those pictures.”
Mr. and Mrs. Clapper said that they spoke to Mr. Bonvie during his site visit. Mr. Clapper asked, “did you also state that if all these trees were cut down, you’d still approve it?”
“Yes, you did,” Mrs. Clapper answered. Mr. Bonvie, looking confused, shook his head and stated, “No, I did not.”
Mr. Clapper told Mr. Bonvie he was perjuring himself.
“The trees in my opinion were planted per the plan per the zoning enforcement officer’s decision to approve or disapprove. This board approves or disapproves applications… the person who makes the decision whether that permit is in compliance is that gentleman right there,” Mr. Bonvie said, pointing to the town’s building commissioner. “I didn’t want to go out—it’s not my job, technically not even my authority to make sure that a plan is followed or not followed. That’s his job. I did go out, though, because I was asked to do so. Very rarely am I asked, but I was asked and I went out and looked. It is my opinion that this plan right here… this plan that I took with me to that site in my car, your site is in substantial compliance of this plan.”
Confusion began to arise among board members over specific regulations that were laid out, and a lack of documentation regarding the spacing of trees. Tensions arose when the building commissioner, Mr. Morris, gave his input that “it was in compliance,” because “some of the trees are 8 feet apart.”
The board did not have exact distances of the planted trees to provide at the meeting, which added to the confusion. Additionally, Mr. Bonvie noted that because existing trees were planted along the north border, perhaps then the new trees were unable to have been planted at a distance of 8 feet apart.
‘I Laid Them Out At 10 Feet’
The committee then turned to the audience for public comment. Roger Brooks from Capewide Construction Inc. took to the microphone to address the board.
“I watched the video from July 27, 2022, [and] if that hasn’t been done by the board, that needs to be pulled up and watched,” he said.
Mr. Brooks also said that during the meeting on July 27, Mr. Bonvie told Capewide Construction that, in regard to planting the trees, “please recall you don’t have to do any of this, but we’re agreeing to do it.”
“They are not planted at 8 feet, I laid them out at 10 feet,” Mr. Brooks continued, “because the agreement was, we love what you did at [Franey Medical Laboratories on Mercantile Way], it looks great. Do what you did there, [so] I laid them out at 10 feet.”
Mr. Brooks explained that trees laid out at the neighboring property, Franey Medical Laboratories at 52 Mercantile Way, have a buffer zone, with trees planted 10 feet apart. This tree spacing was then suggested as a framework for the trees at 68 Mercantile Way, according to Mr. Brooks.
Mr. Bonvie confirmed that this was discussed during the July 2022 meeting. But, Mr. Bonvie noted, “everyone has been yelling [and] screaming,” and high tensions during the meeting had caused the hearing to stray from its initial intentions.
As the disarray and confusion continued, member Scott Goldstein asked for clarity on condition six. The condition asks the developer to, “install white pine trees 8 feet apart, 8 feet tall, along the north border, [but it] doesn’t say how many trees,” Mr. Morris noted.
“Okay, there is my clarity,” Mr. Goldstein said, “A deal is a deal.”
Mr. and Mrs. Clapper were, at this point, both visibly frustrated. Board members tried to tamp down the tension.
“I understand your frustration. We’re trying to listen and help you,” Mr. Goldstein said.
“You don’t understand what got us to this point,” Mr. Clapper responded, “and I apologize if I offend anybody for my attitude, but I have justification for it.”
“We can hear you,” Mr. Goldstein said. “If you just tone it down, we can come to some kind of an agreement, I’m sure,” Mr. Goldstein said.
After hearing from Mr. Brooks, Mr. Bonvie said that the July 2022 meeting should be referenced.
“I was just waiting for this because it is my opinion that the intent of the presentation has been followed, period,” he said. “Everyone’s been yelling and screaming and all the rest, but look at 49.37 seconds, you’ll see it. It’s very clear.”
Mrs. Clapper disagreed audibly from her seat in the audience, but Mr. Bonvie said he would like to “entice everybody on this board” to view the July 2022 meeting.
Commotion Over The Motion
Board members ultimately decided to move on to reading a motion but before that, Mr. Clapper again addressed the board. He and Mr. Bonvie went back and forth about the property’s north border, with Mr. Clapper saying that was the area that needed trees planted, and Mr. Bonvie saying that means they would have to “cut trees to plant trees.”
“No, you don’t,” Mr. Clapper said. “What you do need to do is plant trees in the area that was developed… if that’s what they have to do and they have to plant in the undisturbed area, so be it; that’s not what we’re looking for. All we’re looking for is the mitigation against this project based on the conditions that were set forth.”
Despite some lurking confusion, Mr. Bonvie asked for a motion to be read aloud by Mr. Reidy. Mr. Clapper, though, interjected one last time, saying “I mean this sincerely: we’re not looking to pull an occupancy permit from my neighbors.”
“They’re conducting business [and] they’re fairly reasonable about it,” he said. “All we were asking for is what we sat down and agreed upon.”
Prior to reading the motion, Mr. Reidy addressed the Clappers to clear up any lingering confusion.
“What you’re doing is you’re saying David was wrong in issuing the certificate of occupancy because the trees were not planted 8 feet apart as you say was approved by the zoning board of appeals,” Mr. Reidy said, which the couple confirmed.
“If we vote ‘yes,'” Mr. Bonvie clarified, “you are upholding the building enforcement officer’s decision in reference to the issuance of the occupancy [certificate].”
“We are not trying to get Mr. Morris or anybody else in trouble,” Mrs. Clapper added. “We called, we said, ‘Hey, we aren’t looking to pull back the permit. We just want what was told to be done to be done.”
Mr. Bonvie halted discussion and demanded the motion be read.
The motion, as Mr. Reidy read aloud, stated that Eric B. Clapper is appealing the business commissioner’s decision to issue a certificate of occupancy based on condition six of the zoning board’s decision, with the following: “the zoning board of appeals has determined to uphold the building commissioner’s decision regarding his enforcement jurisdiction, with respect to the issuance to a certificate of occupancy based on condition number six of the zoning board of appeals decision… for the property located at 68 Mercantile Way.” The motion continued, stating that the board “finds that the petitioner, Eric B. Clapper, who resides at 10 Sugar Pine Circle, has not established a factual or legal basis to support the appeal of the building [commissioner’s] determination.”
Mr. Clapper, who had previously mentioned he did not want the occupancy permit to be revoked, spoke up again. “I’d like to speak,” he interjected. Mr. Bonvie said that he could not speak anymore, however.
“The public hearing hasn’t ended. I have a right to speak,” Mr. Clapper responded.
“We have a motion on the floor,” Mr. Bonvie responded, before announcing that a roll call vote would begin. Associate member Michael Milbury was called to vote first.
As voting commenced, tensions remained high. The specific language in the motion that Mr. Reidy read aloud noted that if the board votes to appeal Mr. Morris’s decision to issue an occupancy certificate, then it would be revoked.
Conflicted over the wording of the motion, Mr. Milbury said that, “we went through the right channels here, but the occupancy thing bothers me.”
“So, I vote in favor of Dave, against my judgement because the motion is ill-written,” Mr. Millbury said.
Despite dissatisfaction among the committee over the motion, Mr. Bonvie said that, “we can’t change the motion.”
“Why can’t we talk about this?” Mr. Clapper interjected.
“Because it’s now up to the board,” Mr. Bonvie responded.
“But now we’re changing things and twisting things around,” Mr. Clapper responded.
‘Detriment To The Neighborhood Is Probable’
Soon after, Mr. Bonvie attempted to close the public hearing; however, a raised hand in the crowd grabbed his attention.
“Let’s do one last thing. I’ve got to do this—sir, you keep raising your hand… I took one other person from the audience, I have to do this,” Mr. Bonvie said, before asking the man if he would like to speak. Then, Mashpee resident Stephen Bernard, who lives at 7 Sugar Pine Circle, stood up and approached the microphone.
He began with a compliment for the board members, thanking them “for taking the time to listen and deliberate and ask questions of all residents and discussing among you before making a competent decision.”
Mr. Bernard then described his experience both living as an abutter to 68 Mercantile Way, and as a member of the audience of that night’s meeting. The property “has been developed over the last five to 10 years quite nicely,” he said.
But, “an agreement was made,” he continued, which “I believe, from the hearing and from the questions of the board, it was decided in protection of the residents of Sugar Pine Circle.”
“And now, we have a situation [where] the owners of the commercial property are not living up to the stated decisions that were made in 2022,” he said. “It leads me to believe that the detriment to the neighborhood is probable.”
Interrupting his comments, the chairman suggested that he could help. Then, he asked Mr. Reidy III if he would be willing to amend his motion, striking the detail about the occupancy permit.
Mr. Reidy III read aloud the new motion, which stated that, “the zoning board of appeals has determined to uphold the building commissioner’s decision regarding his enforcement jurisdiction with respect to condition six of the zoning board of appeal’s decision for the property located at 68 Mercantile Way.”
“It has nothing to do with the issuance of and certificate of occupancy, only deals with condition six,” Mr. Bonvie said.
Then, he clarified what the new motion would mean for the board: “if you vote in favor of the motion, you are saying to David that he followed the rules correctly, and condition number six has been upheld and has correctly been handled,” he said. “If you vote against this motion, you are saying ‘David, the trees are not installed correctly. You need to look at them again.'”
Ultimately, the board voted unanimously against the motion; this means that the Clappers were successful in their appeal of the building commissioner’s decision, and thus further action will need to be taken to ensure that condition number six of the special permit is upheld.
Now, Mr. Bonvie said, “it goes back to David. David is [going to] have to deal with it. I presume he’ll call the people who planted the trees.”