11/28/2018 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS MEETING MINUTES NOVEMBER 28,2018 Mr. Armando Agniti resides at 150 Summersea Lane approached the Board stating that Attorney Wall mentioned "harmonious use of land" which is for everyone in the community. He believes that Attorney Wall's client has a disregard of the Board's authority, and the authority of the Building Department. He said Wall's client essentially gets an order, and instead of waiting for permission he decides to do what he wants and sees where his connections land him after all legal debates have been done. He believes this person is a bully, and has harassed his siblings and the other children in the neighborhood.He said that a special permit should only be given to someone who deserves it. He hopes the Board will recognize they have the power to deny as what happened in Rockport, and Martha's Vineyard. He thanked the Board for his time. Gina Agniti resides at 150 Summersea Road. She said two years ago this person buzzed her home three times in circles directly above her house while she was on her deck. She was very frightened for her children. Attorney Kate Carter who represented the Donato family asked to respond to some of the legal arguments raised by the petitioner on his appeal. She said that the Attorney argued that the petitioner raised concerns of immunity. The im nunity argument is inapplicable. The petitioner acknowledges that the use of the helipad in a residential zone is a non- permitted use. The immunity was from the enforcement of the bylaw under the old Hanlon decision which has now been overturned by 2018 Roma decision. That decision can be retroactively applied. First, it was an interpretation of a statute found so the question of retroactive or the prospective application of decisional law only comes into play when there's a new rule. But here under the Roma case it was simply an interpretation of an existing statute Chapter 90 Section 39 B that simply the Hanlon decision and prior was a wrong interpretation of what was allowed and the 2007 decision was withdrawn. That statue preexisted at the time it was first constructed. The Town is still bound by that statue when enforcing the use of aircraft, but is free to regulate the use of land that's a long standing tradition that was upheld by the Roma decision. Its retroactive application doesn't result in any inapplicable or unjust result for the petitioner, it's certainly foreseeable that the municipalities that delegate to regulate the use of land could be upheld as in the Roma decision where the application of that rule here simply requires the petitioner to make a showing under the bylaw Section 174-24 K and subpart C2. There's no inequitable results because he was allowed to have a helipad under an improper interpretation of the prior statute. 6