Octagonal Controversy

ZBA Refuses To Remove Condition For Occupancy Of Shorefront Home

by Tim Wood

            CHATHAM --- Chatham Bars Inn owner Richard Cohen and his family will finally get to sleep in the multi-million dollar house he built on Chatham Harbor.

            The home, known as the Octagonal House, was completed months ago.  But the town refused to grant an occupancy permit because a special permit condition requiring the removal of three telephone poles had not been fulfilled.  Last week, the zoning board of appeals upheld that condition, and upheld the decision of Community Development Director Kevin McDonald to withhold the occupancy permit until the condition is satisfied.

One of the poles that the zoning board required be removed as a condition of a special permit for renovation of the Octagonal House, seen in the background.  The board declined to remove the condition, which Chatham Bars Inn owner Richard Cohen said would cost more than $800,000. FILE PHOTO

            While the decisions were a defeat for Cohen and Chatham Bars Inn, which owns the 324 Shore Rd. property, McDonald plans to issue a temporary occupancy permit while Cohen tries to work out removal of the poles with his neighbors.  In fact, McDonald was ordered by the state building code appeals board to issue the temporary permit several months ago, but had not done so because he had not received a copy of the decision.

            The complex situation, the subject of a four-and-a-half-hour zoning board meeting last Thursday, left everyone involved frustrated.  Neighbors of Cohen, who leases the house from the inn as a home for his family, are unhappy that the poles are still up; zoning board members are frustrated over conflicting cost scenarios given for the removal; and Cohen is upset because, he says, he couldn’t move the poles even if he wanted to, because they are not on his property.

            When the original condition was agreed upon in December 2006, Cohen said, it involved removal of one pole, at an estimated cost of $60,000, with neighbor Harm de Blij --- who had requested the pole removal and burying of utility wires to improve the view --- paying one-third of the cost. 

            “That’s not what developed,” Cohen said during last week’s hearing.  “What’s developed is a nightmare.”

            After Cohen’s attorney left that 2006 hearing, the zoning board increased the number of poles to be removed to three.  Nothing apparently happened for many months. In September 2008, NSTAR finally came up with an estimated cost for the project: $833,000, which included not only removing the three poles along Shore Road and Seaview Street and burying the wires, but removing an additional pole, upgrading a transformer and installing manholes, according to Cohen’s attorney, Michael Morizio.  The utility company declined to remove only the poles in the special permit, he said.  Because the poles are located within the road layout and not on his property, Cohen was powerless.

            “He tried to comply, but the utility refused,” Morizio said.  McDonald’s refusal to grant an occupancy permit was “just another of the building inspector’s tactics to try to force my client to do a public works project.  It’s absurd, and it should stop here.”

            Attorneys for two of Cohen’s neighbors, de Blij, who lives across Shore Road, and Roger and Jenny Ludwig, whose properties lies immediately to the south, said the quote was inflated.  William Litchfield, representing de Blij, also noted that neither Cohen nor the inn had contacted the town about removing the poles, since they are in the road right of way.

            Litchfield also noted that Cohen did not appeal the special permit condition within the 20-day period statutory period, instead waiting three years before asking the board to remove it.  Resident Toddy Everett agreed that was “a little too late.”

            “We have all given him what he wants. It’s time for him to give us what we want,” she said.

            No matter what the cost, Morizio countered, Cohen can’t satisfy the special permit condition without the cooperation of NSTAR and other utility companies. “The utility company put up barriers we can’t satisfy,” he said.

            Several zoning board members said removal of the poles was the “lynchpin” in approval of the special permit to rebuild the Octagonal House, although none could recall how the number of poles to be removed went from one to three.  While each member said they felt the reconstructed home was an improvement over the dilapidated building that it replaced and an asset to the town, they stuck by their decision to impose the pole removal condition.

            Recognizing that there is no point in the finished home sitting vacant, zoning board members tried to craft a compromise whereby Cohen and his family could use the house while negotiations over the pole removal continue.  Cohen offered to put up $60,000 toward the removal or other beautification project, but Town Counsel Bruce Gilmore advised against it, saying it could be seen as a wealthy property owner buying his way out of a special permit condition. 

            The assumption is that the ZBA’s decision upholding the special permit will be appealed to Superior Court, McDonald said. Because of the state building code appeals board decision, he will be compelled to issue a temporary occupancy permit so Cohen can live in the house.  If he refused, “that would put the town in a very bad light, knowing that this will take some time to went its way through the [court] system.”

            Gilmore concurred, adding that he was confident Cohen could seek a court injunction and “be in the house tomorrow night.”

            Zoning board chairman Donald Freeman said he hoped the decisions will at least give Cohen an incentive to work with his neighbors, the utility companies and the town toward removal of the poles.

            Cohen said he’s spent more money on engineers and attorneys working to remove the poles than the initial $60,000 estimate. He said he wants the poles and wires removed; “I’d love every pole in town to come down,” he said.  But the progression of the situation left him upset.  “Somehow it went from $60,000 to $800,000, and I’m the bad guy,” he said. “That home has been ready for months.  I missed the entire summer in that home.  No one has ever slept in it.”

            Cohen acknowledged that he is engaged in a property dispute with the Ludwigs over the Octagonal House right of way and has found himself, since buying the inn in 2006, in several disputes with the town.  He wants to cooperate with the town and his neighbors and put all that behind, he said, but the rules seem to keep changing.

            “I want to stop fighting. My plan is to be here for a long time,” he said.  “My goal is yours, it’s the same thing here. Give me the opportunity to make the town better.  Give me some guidelines where we can follow the rules.”

10/22/09