Rochester’s Zoning Board of Appeals on July 13 denied an appeal of a cease-and-desist order against an alleged trucking-business operation at 19 County Road for a one-of-a-kind reason.
The board decided at that hearing the appeal filed by Robert and Christine Murphy was beyond its jurisdiction because the couple did not file action against the cease-and-desist on time, within the 30 days mandated by state law from April 25, the date they received the cease notice from Building Commissioner Paul Boucher. That would’ve meant an appeal deadline of May 25.
Special Town Counsel Chris Heep told the board the Murphys’ appeal was sent out on May 26 and received by the town on May 30. The zoning panel lacks jurisdiction on considering the appeal because the notice was not sent out in a timely manner, he said.
What the board must do instead, he explained, was to render a denial. Then the Murphys will be able to appeal the cease-and-desist to Superior Court or land court for a judge’s determination on the merits of the building commissioner’s order.
First, as they faced a roomful of 19 County Road abutters, zoning panel members made sure a denial was the correct decision by questioning Town Counsel, Richard Manning (the attorney for the abutters) and Jordan Rodrigues (the Murphys’ counsel.)
Rodrigues argued the Murphys did not pick up the cease-and-desist notice from the post office until April 27, and he contacted the town with their intent to appeal via a call to Boucher on May 9. Rodrigues said the Murphys had until May 27 to file the notice and sent it on May 26. “This denial will be in violation of my clients’ rights,” he said.
Manning said there is no leeway on the deadline for these types of notices in state law. The cease-and-desist was dated April 25.
Receiving the notice was complicated by the fact 19 County Road is not their home address, Christine Murphy argued. Their house address is in West Wareham. The original notice was dated April 10 but had to resent after the address mix-up was realized.
Rodrigues said it took time for him to put together a thorough, cogent response. “It took a long time to put together,” he said.
“This is the strangest thing I’ve ever run into on this board,” board member Richard Cutler said before the final vote. “This is not what I expected when I came for this meeting tonight.”
The board’s decision to deny turned on its realization that the Murphys will still have recourse to appeal the cease-and-desist in court. If a judge disagrees with the ZBA’s time-factor denial, the case simply will return to the town board to be deliberated on the merits of the appeal itself.
“Whatever decision we make, we’re protected,” member Donald Spirlet said. “And I like that.”
The resulting vote was unanimous.
The Rochester Zoning Board of Appeals will meet next on Thursday, July 27, at 7:15 pm at Town Hall, 1 Constitution Way.
Rochester Zoning Board of Appeals
By Michael J. DeCicco