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Town Opts Not To Appeal Cottage Decision

Posted in: Sandwich News, Top Stories
Sep 5, 2008 - 12:28:54 PM
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SANDWICH- Patricia A. Cyrus’ five-year battle to win a building permit to repair her cottage on Ploughed Neck Road is nearly over. During a settlement hearing in Federal District Court yesterday, the town agreed to dismiss its appeal on whether a building permit could be legally issued.  
Last month Ms. Cyrus received some very welcome news when she learned that the United States District Court handed down an injunction ordering the Town of Sandwich to issue her a building permit to make repairs to her small Ploughed Neck Road cottage. But that good news quickly turned sour when she saw that the permit contained language stating that she may not be able to occupy the home once it is repaired.
Yesterday, the town agreed to take out the limiting language in the building permit, said Julie C. Molloy, the attorney representing Ms. Cyrus.
This ordeal began on October 2, 2003, when a tenant living in the cottage put a cigarette out in an ashtray that accidentally fell onto the couch and started a fire inside the small home. While the walls and other interior parts of the home were damaged, there was no structural damage. Wanting and needing to repair the home as well as make some cosmetic upgrades such as cabinets and countertops in the small kitchenette, Ms. Cyrus went to  town hall and requested a building permit.
But her request was denied. According to Ms. Molloy, the denial was based on a zoning bylaw that references houses built after 1954. According to Ms. Molloy, because this individual home, sits on a lot smaller in size than the currently required 60,000 square feet, the building inspector determined that the home was essentially “unlawful,” and therefore no permit could be issued. Ms. Molloy said that the bylaw does not even pertain to this property since the house was built prior to the 1954 cutoff date.
For five years, Ms. Cyrus has been fighting the town on the issue, and the town has been fighting back.
Ms. Molloy and other local attorneys are questioning how much money the town has spent in litigation fees to keep Ms. Cyrus from restoring her house to its former habitable condition.  
“This has been a waste of taxpayers’ money and my client’s money,” Ms. Molloy said. She estimates that her client has spent nearly $50,000 in legal fees just to bring her home back to the condition that it was in before the fire occurred and she can only wonder how much money the town has spent on this case.
Town Manager George H. Dunham estimated that the town’s legal expenses did not exceed $15,000. He explained that the town has litigation insurance, which covers the costs of legal fees in cases such as this. He said once the case was turned over to the insurance company, the town paid its $10,000 deductible and all charges above and  beyond that are paid for by the insurance company.
But Ms. Molloy contends that the town also paid fees to its legal counsel, Kopelman & Paige, for the services that the firm provided in this case, which are separate from the services provided by the insurance company’s counsel. She said it is highly unlikely that the insurance company paid for the services of an attorney from Kopelman & Paige to be at the meetings or court hearings and, for the majority of those meetings, attorneys from that law firm were present.  
“Kopelman & Paige drafted 75 percent of the documents filed in this case,” Ms. Molloy said.
Local attorney and former member of the planning board and zoning board of appeals J. Mark Haney said when the request for the special permit was first made, an attorney from the town’s legal counsel attended that zoning board meeting. “What on earth was Kopelman & Paige doing at that meeting?” he asked.  
He went on to suggest that at a rate of $175 per hour for the services of Kopelman & Paige, the town’s costs far exceeded  $15,000.  
“Both sides have spent enormous amounts of money. The whole situation is baffling to me. It seems that this whole thing is being pursued by Kopelman & Paige,” Mr. Haney suggested.
Chairman of the board of selectmen Linell M. Grundman said as a matter of procedure, whenever an appeal or legal action is taken against a board, committee, or town department, it is sent over to the town’s legal counsel. From there, she said, input is gathered from the various people involved, including board or committee members or department heads.  
“That information is summarized and brought back to the board of selectmen during litigation strategy. Based on input from town counsel as well as the board members or department heads, the board of selectmen makes a decision on whether or not to pursue litigation.  
“The main issue in this case was precedence and the future impact it would have,” she said.
While the town agreed to a settlement of the building permit issue yesterday, Ms. Molloy said the battle is not quite over. Another part of this litigation saga concerns whether the property is considered year-round, seasonal, or if there is any legal use for the house. “The town is trying to say that there is no lawful use of this property,” Ms. Molloy said. A hearing is scheduled for December in Barnstable District Court to determine the use of the property.