ZBA says it lacks jurisdiction in 402 North Falmouth Highway appeal after building commissioner defers decision

The Zoning Board of Appeals voted to deny jurisdiction over an appeal relating to 402 North Falmouth Highway after the board read a July 6 letter from the town building commissioner, Gary Street, stating he had not made a zoning determination and that site-plan review was ongoing.

The clerk read the letter into the record: "As of this date, I have not made any zoning determination regarding the project, nor did I provide a determination to Mr. Kirk when he requested one," the letter says. The building commissioner added that any determination would be premature while site-plan review was underway.

Attorney Edward Kirk argued the commissioner's refusal to respond in writing amounted to an appealable enforcement decision and asked the board to exercise jurisdiction. Kirk said prior public statements and planning-board actions created a need to preserve appeal rights and that a refusal to respond could be appealed.

Several board members and staff disagreed. Counsel and members cited precedent requiring a written enforcement decision as a precondition to appeal. One board member noted that, at present, the site is vacant and there is no building permit or final planning-board decision to trigger a formal appeal.

After discussion, the board moved and voted to deny the appeal for lack of jurisdiction. No further findings on the substance of the project were reached; staff and board members said parties could return after the building commissioner issues a formal written determination or after the planning-board/site-plan review process concludes.