CapeCodToday Blog Chowder

Hayduke, (1) an LLC is not a corporation. It is a small entity made up (usually) of 2-3 people, in this case, husband and wife, and(2) corporations didn't "pervert" the 14th amendment, the Supreme Court held that for purposes of equal protection, a corporation is a "person," lest the individuals who make up a corporation (i.e., individual stockholders) lose their (derivative) rights when the government acted unfairly against the corporation (e.g., expropriated its property without compensation).

"Corporate ownership of the Constitution," pffffffff. Time to roll another one.

Krista, I definitely think he can.

I don't mean to beat a dead horse, and balogna seems to agree with the concept of private property rights, but I chafe at the assertion that a LOOPHOLE in the law was exploited in this case.

According to Merriam-Webster, a "loophole" is "a means of escape; especially : an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded."

There is no ambiguity or omission in the text of the CCNS regulations governing the single family dwellings that existed in the CCNS at the time of the law's passage. The regulation specifically provided for the right of the homeowners to rebuild their dwellings in a manner that is consistent with the town's zoning scheme -- subject to a more stringent setback -- here is the regulation:

(http://edocket.access.gpo.gov/cfr_2006/julqtr/pdf/36cfr27.2.pdf)

If you want to call it a "loophole" that the town hasn't acted to treat CCNS owners worse than everyone else, that's your perogative. I don't buy the claim that the creators of CCNS intended to regulate the size of dwellings.

This house is NOT being built because of a LOOPHOLE. It did not come about due to a sharp big city lawyer manipulating an ambiguous law. The CCNS regulations were drawn so that municipal autonomy over land use was preserved, and individual property rights were respected. Has the town of Wellfleet dropped the ball by not enacting more stringent zoning regulations with respect to rebuilding in CCNS? No moreso than the other towns, I suggest.

But this is not the first instance of someone expanding a grandfathered home in CCNS. Why are all the hackles raised over this one?

Well well well.

Huh.

All of these judicial and quasi-judicial bodies must be wrong. Every one of them. Or no -- they've been bought by crooked lawyers. It's a conspiracy.

These CW folks must be pretty stupid, spending all this time and money on something that will not work. Why won't they listen?!

Hey -- maybe the Blasches would be interested in buying it.

I see Stu is cementing his sterling reputation as the Mr. Potter of Barnstable.

Looks like Matt's been inhaling.

hey chief, you're the one who suggests that the President of the United States was personally involved with the minutae of federal regulations.

But the proof is in the regulations, isn't it? What JFK or anyone else "thought" is really irrelevant. The regs say what they say -- read them and weep.

Anyway, it wasn't JFK paying attention to this -- it as Gerry Studds, a true liberal who (apparently) had a better appreciation for private property rights than you do.

Oh yeah, the guy who owned one of the most valuable compounds on Cape Cod was sweating over these regulations to make sure the little people of Wellfleet didn't get a case of "Have nots." Get yer head outta yer ass dude.

don't let facts get in the way of your delusions, clam.

And for the sake of further elucidation, the CCNS Act provided for the Secretary of Interior to suspend his authority to condemn (take by eminent domain) improved residential property UNLESS existing dwellings were being expanded in a manner that required a variance from the above-quoted dimensional restrictions -- in which case he could elect to proceed with a taking.

(http://edocket.access.gpo.gov/cfr_2006/julqtr/pdf/36cfr27.4.pdf)

(Just to make it clear, the above citation is to the Code of Federal Regulations governing the CCNS, and it was drafted and adopted by the Department of the Interior after the requisite public hearing and coment period)

All this baloney about crooked lawyers and paying people off and loopholes -- it's utter crap. The building permit issued here was consistent with the letter and spirit of both the zoning by-law and the CCNS regulations.

Here is the extent to which existing single family dwellings are regulated within the CCNS:

36 CFR Ch. 1 s.27.3(c)(1):

(c)(1) No moving, alteration, or enlargement of existing one-family residential dwellings or structures accessory thereto situated within this District shall be permitted if such would afford less than a 50-foot setback from all streets measured at a right angle with the street line, and a 25-foot distance from the abutters’ property lines(or less than such lesser setback or distance requirements already in existence for such dwellings or accessory structures).
(http://edocket.access.gpo.gov/cfr_2006/julqtr/pdf/36cfr27.2.pdf)

If the Town of Wellfleet wants to prevent this from happening again, all you have to do is bring to town meeting an amendment to the zoning by-law that provides for maximum lot coverage or even maximum dwelling size

It's not like the Republicans have a deep bench to pick from.

If Charlie Baker doesn't run, the party should bend over (backwards) to get Christy to run as a Republican.

clammy,

There is a simple principle in the Constitution, that one's property cannot be taken from him without just compensation.

When the Seashore was created, it assiduously avoided the taking problem by providing the private property owners with the right to maintain their dwellings consistent with land use regulations.

Hey I know!

Let's not let anyone build on their property until they put their house plans up to a town-wide plebescite! What's "tasteful" should be left up to the property owner alone!!

yes, it is. And I maintain that you have no right whatsoever to insert your own opinion of what is an "eyesore" or what is "decent" and what isn't.

There would be a lawful and procedurally proper means of injecting design review or proportionality into the permitting process. You simply cannot do it ad hoc and after-the-fact.

NRT -- a more arrogant and pompous comment I have never seen. So you have the right to determine what house is a stain and what house isn't? The standard for appropriateness is what you say it is?

And congratulations on your own tastfully inserted trophy house (you just had to tell us it's bigger!) -- you must be one (environmentally conscious) BSD.

Query:

Did the WCC BOARD OF DIRECTORS vote to have this email sent, or was it the initiative of its ExDir or one officer?

Peter, be sure to say hello to Dana for me when you see him next.

Walter, why don't you file a small claim in the Orleans District Court?

That will get you on the front page of the Boston Globe!

Walter, why don't you file a small claim against them in the Orleans District Court?

That would get you back in the news!

Peter, nice work. You must be part of the Vast Right Wing Conspiracy.

And this "I've lost all respect for Fox" line is hilarious. You're all in the tank with Soros already.

I'm no fan of Kennedy, but this is just a rehash of old news.

Lisa, I'd pay good money for a front row seat at the first public hearing on this -- if they're stupid enough to push back.

Hey great idea Peter -- just stroll into BCRB and ask for the records! I'll bet they'll trip over themselves helping you out!!

Actually, it'll make for a few more great articles.

incipient, that will be Beatty's crowning achievement.

I look for Romney.

And Ed Markey -- but don't count out the prospect of Mike Capuano.

marco, your powers of stereotype are remarkable. IMAGINE! His father was a DOCTOR! **GASP** He married a girl from Weston!! The HORROR!

Dude, you live on CAPE COD!! Right near the Kennedys!!

Quixotic would be the correct adjective.

Point of personal privilege: There is nothing "innovative" about a candidate waving at cars -- they're called "stand-outs," and they've been done for decades (I did them every morning and evening in the 1980's). They are fine for raising name identification, as far as they go (they are free), but there is no substitute for the candidate knocking on doors, which is something most fledgeling candidates can't bring themselves to do.

As for this particular endeavor, I can't possibly imagine what sense it makes for him, politically or professionally.

ekzept, I think you need to look carefully at McCain's record on opposing pork -- inculding pork in the defense budget.(http://blog.wired.com/defense/2008/01/an-end-to-pork.html)

I am surprised at the obvious slant of this report. McCain's antipathy to subsidies applies to practically everything -- including nuclear, gas and oil -- so to suggest that his position here is somehow part of some secret conspiracy to kill wind power is pretty dishonest. McCain's deficit hawkishness is non-discriminatory.

And are we ascribing to McCain now positions taken by the client of some of his campaign officials? Is that how we proceed? Didn't we just get through tsk tsking people who claimed Barack Obama must be anti-Israel because his advisor's opinions have been sympathetic to Palestine?

This is very disappointing.

that's good prose there, matey.

Buzz, the "or" is meant only in the event there is no BI appointed. Hence the BOS appealing his decision to the ZBA.

PK - it's TWENTY days. Feh.

fran -- my mistake. I agree with you. In general, it is my experience that it is the client that is litigious, not his lawyer.

I am baffled that you would both assume that Mr. Kline MUST not have been properly advised by his lawyer. It seems obvious that the man pursued the case to the very end with that knowledge foremost in his mind. Faced with a trial court decision that was impregnable, he nevertheless appealed, and hired a formidable Boston trial lawyer to write the brief. It seems rather clear that he had no interest in winning, only in making the opponents spend money that he could afford to burn.

Aaron, try google.

Educate yourself.

http://www.youtube.com/watch?v=1_y_LaMokGM&feature=related

Sort of like Lenny Bruce? Is that what you were going for?

Young man. This is no way to call attention to yourself.

crusader, I dunno what da heck you smokin, but you gotta cut back dude. You're hallucinating.

Rich man's slave? Pfffff, move to Berkeley, you'll fit right in.

fran, here is the Kline case: http://www.socialaw.com/slip.htm?cid=15337&sid=119

I invite you to read it thoroughly and discern from the shadows some inkling of inference that Mr. Kline was taken advantage of by his lawyer.

Once more. Welfleet, Truro, every town on the Cape has the power to enact building size and lot coverage limitations that would prevent McMansions from sprouting out of the dunes. They just have to be above-board about it.

And leave the damn CCC out of it.

Try to examine this situation without regard for the wealth/profession/party affiliation/religion of the owner. You'll be amazed how silly it all sounds.

All this anti-elitist hand-wringing is rich. Stop the millionaire from improving his property - by any means necessary!!!!

James -- if the Town of Welfleet cares to prevent 5,000+ foot houses from being built on the dunes, it has all the authority to do so -- all it has to do is pass a zoning amendment in a lawful fashion that limits lot coverage ratio, square footage, height, whatever.

What makes this offensive to anyone who cares about the rule of law is that the current zoning by-law contains nothing that limits the owner's right to replace one dwelling with another.

There is no qualification or condition placed on the BI's authority to grant a building permit for a single family dwelling in a residential district -- nor can there be. You don't get to qualify a man's property rights by use of vague and undefined concepts like "character" and "ambience" without providing a process that warns the owner in advance that these are the hurdles he is investing in.

Nice work Peter.

What I find particularly odious here is the effort to rescind the BI's issuance of the permit based upon the vague language of "guidelines" -- "ambience" and "character."

Also, the idea that an elected board would take official action for the specific purpose of stopping ONE OWNER's perfectly legal effort to improve his property, I think, raises a civil rights issue.

day time soap?

How about Cuckoo's Nest?

The answer is easier than you think.

Hire a friend of Sal to represent you.

Aha!
That's a diffrent story!!

I'm not aware if Rep. Turkington ever set foot in the Probate Court during his legal career.

Who is the other republican in the primary?

Running against your boss, huh?

Tell us what is being done wrong now that you think would be done better with you in charge.

This is amusing -- one of the most liberal towns in Massachusetts still holding up a candle to prohibition.

crusader, my comment may sound insensitive, but it was indeed an admitted fact in the 1980's that many of the urban offices of Mike Dukakis' Welfare Department handed bus tickets to Hyannis to a lot of their caseload in June-July. It was their way of reducing caseload during the summer months. I think Rick Presbry, who was the head of Housing Assistance Corp., could confirm that.

Is this a sign that the city welfare offices are giving out bus tickets again?

Lady, your mind is in the gutter.

Trying to read the tea leaves here -- could it be that, as a result of the decline in development activity during the current economic downturn, the CCC can't count on the level of "funding" derived from exorbitant and confiscatory review fees, and in addition has less work to occupy the current burgeoning staff, and so is looking for new ways to justify its ponderous existence by (finally) becoming the "partner" that it should have been from day one, thereby setting the stage for its justification for hitting the county budget for more money to make up the difference?

What makes you think I'm "afraid?"
I understand that common courtesy is not an abundant commodity around here, but my use of it is certainly not out of fear.

karent, I must respectfully correct you. The pre-existing nonconformity of the restaurant has EVERYTHING to do with the number of seats. The zoning statute only protects a pre-existing nonconformity to the extent of its existence at the time of the zoning change. If the restaurant had 95 seats when the restaurant became a prohibited use (and I have no idea if it is a NCU - it may be permitted in the district, I don't know), then the expansion of the number of seats would require a special permit to extend the nonconforming use. The seating capacity listed on the CV license is prima facie evidence that the permissible NCU is for 95 seats.

The limitation on seating capacity is both a BOS licensing issue and (possibly) a zoning issue. Assuming that the "license" that mentions 95 seats is the BOS-issued common victualer's license, then exceeding it is a matter that can be appealed to the BOS (fat chance there). But if the restaurant is a pre-existing nonconforming use, and the capacity of the restaurant was only 95 seats originally, then they can't expand the degree of nonconformity (i.e., increase the seating) without going to the ZBA for a special permit. Depending on how ling they've been doing that, there may be a statute of limitations issue.

McCain was not found to have engaged in
"improper activities."

The investigation ended in early 1991 with a rebuke that McCain "exercised poor judgment in intervening with the regulators." But the Senate ethics committee also determined McCain's actions "were not improper nor attended with gross negligence."
http://news.yahoo.com/s/ap/20080323/ap_on_el_pr/mccain_keating

maverick:

A slanderous accusation without evidence. What a shock.

This post has all the markings of an APRIL FOOLS joke.

Nice work, Bree!!

buzz, knock it off! Just because he's holding a large glass bottle with brown liquid inside of it doesn't mean that he's drunk. There could be anything in that bottle.

but bob, you must understand that bloggers are on an eternal hunt for hypocrisy and profligacy among the guardians of the public till and their kine, and in such a hunt, you'd get whiplash if you were required to evade this family's stunts!!

What would make me think it was a slip?

Uhhh, the fact that you can't even recognize it might be perceived as persuasive evidence, even to the late District Attorney Rollins.

Ya I know, all those incompetent law men look alike.

BTW, have to be amused with clam's freudian slip.

Peter, some people just refuse to acknowledge the dysfunction or how broadly and deeply it runs.

FWIW, anyone with the most basic knowledge of Lewis Bay knows that there are vast areas of (more sheltered) water within minutes of this mooring area.

Talk to some of the members of the Hyannisport Yacht Club -- this story will seem trifling.

Peter,
Give me a primer on the boundary between tribal sovereignty and federal/state civil/criminal law. It seems to me that there is a problem with jurisdiction (anyone's, including the U.S. Senate) involving any actions that do not interact with external institutions (how they hold meetings, banish people, etc etc)-- but if the action involves the use of a bank account, the U.S. mails, use of telephones, etc., then I would think it would be cognizable.

My question is, why has there been no atempt to use the courts directly? Who the hell wants Kennedy or some Senate Committee involved in this? Taking a few depositions and demanding a bunch of documents gets the ball rolling, faster too.

LOL, now there's a skewed perspective. Do you wear the "No Blood For Oil" tee shirt daily or do you wash it once in a while?

Dude, make up your mind. You can be Frank, you can be Ted, you can be Johnson...Just don't be late for supper.

sounds to me like you're "attackofthethong," mopo

you have a filthy mind, lady.
(heh heh)

Buzz, there may be nothing at all to the "I heard it on the radio" thing -- I just found it curious that the two acounts were stated in such a similar fashion.

The "Mormons don't lie" statement is clearly the foundation for my disappointment, no?

mav, sorry dude, I don't play that game. Buzz can talk for himself, if he wishes, but 1978 radio news on the LDS revelations and 9/11 attack on the WTC are, well, just incomparable.

If you want to call something "crap," you'll have to identify what it is and articulate your rationale. I do the best I can to avoid snark. You do the same and we can have a conversation.

Buzz, I think you need a little exercise in discernment skills.

I'd find it unusual, frankly, that Mitt would learn the news of this Revelation over a radio station in Boston (national affiliate or otherwise) before he learned it from his own church -- as connected as he was with it.

Mav -- let me add an additional layer of complexity to my simple explanation: I THOUGHT MITT WOULD BE DIFFERENT.

Get it?

The least truth-challenged in the field:

McCain.

OK mav, so even you can understand:

Mitt is truth-challenged like the rest of them.

WOW, only 18 and ALREADY a hardened cynic!! I'm impressed.

Hey, McCain wasn'ty such a crappy pilot. And anybody who can come back a heckler by pointing his finger at the guy and s"tarting his reply with "look pal," is A-OK with me.

My exposure has been entirely to PP, and I know little of her chemistry with the MRSC folks. But I cannot think of one instance in which her PP posts have been anything other than respectful and intellectually honest.

I am quite amused by this idea that a Cynthia has somehow breached some journalistic ethic in her columns in the CCT. Huh?? Someone needs to explain that one to me.

Ignoring Cynthia's personal situation, there are many of "us" GOP dinosaurs who have no use whatsoever for the majority of the State Committee members who consider their duty to be attending the meetings and going to a few cocktail parties while the party goes down the crappah.

The destruction of Nantucket Sound.

That's funny.

Higher rates. That's funny too.

Fascinating.

And the spitfire link is chilling.

I must admit that as brilliant as I find Zappa's musical composing, I think his penchant for lewdness and misogyny probably was a considerable distraction to many listeners (heh). I mean, I'd like to have trated my house guests to the stunning arrangement and superlative guitar solo in Dyna-Moe Humm, but unless one's guests are outre-hip, the words (http://www.lyricsfreak.com/f/frank+zappa/dinah+moe+humm_20056571.html) can be a little embarrassing.

Thank you for posting that link, susan -- this is one of the great pieces of television history, wherein Zappa repeatedly tells NYT columnist John Lofton to "kiss my ass." It's just so amusing to see Zappa sitting there in between three stuffed suits.

Tight may not be the word for it, if there were another word more severe.

In Zappa's biography (which is extraordinary reading), one theme that keeps repeating itself is that every musician that ever played with him --from guitarist Steve Vai to classical trumpetists with the Paris Symphony Orchestra -- say that they've never worked harder in their lives and that Zappa got more out of them than any other conductor ever.

The man was an obsessive genius.

Maudlin sentiment.

I was considering what they might do. They go to get a building permit from the town, the building inspector says he cannot give the permit because of the CCC referral; then the Klines have to appeal the BI's denial to the town zoning board, and f the ZBA upholds the BI, they go to Court. In any case, they're looking at months of litigatiin, during which the CCC would be (presumably) proceeding to review the project. Odds are the commission will complete its review before the Klines could ever get a Court to rule on the dispute.

I think the CCC lawyers know this -- it is a means of expanding their Authority with impunity.

It would be great if someone simply decided he didn't care how long it took and just sued for the sake of the precedent -- but as my father taught me when I got out of law school, "always be careful of the client who is suing on principle and paying by the hour."

Happy b'day Walter.

Man Culver musta done a number on you.

You are apparently one who ardently believes that the ends justifies the means.

I am one who believes that statutorily created regulatory bodies get their jurisdiction from statutory language, and beyond that jurisdiction they have no power to act. So, with that, here are a few inconvenient facts that get in the way of your own ïnterpretation" of the Truro controversy:

1. The commission has no jurisdiction over the construction of one single family house.

2. There is, by statutory and regulatory definition, nothing "regional" about the controversy.

3. The commission's jurisdiction does not entail "mediating" anything. In order to "mediate," one must have two parties who have opposing "rights" in conflict. The rights are derived from law, not from peoples' delicate sensitivities. The town has no right to refer this to the commission (it is in black letter law); and abutters or other interlopers have no rights to enforce either.

The only thing "courageous" about the commission's decision is that it is so blatantly unlawful.

By the way, if you're looking for more recent instances of officious and superfluous intermeddling, you might take note of the even more recent initiative of the staff to encourage the commission to get sued by Cape Wind.

commonsense,

One might be inclined to find your name a contradiction.

Aside from the fact that I failed to mention the incident occurred in this millenium (still not recent enough for your taste, perhaps), your impression of this admittedly small totem as "thin gruel" suggests that you are not inclined to eat gruel at all, whether thin or thick.

Again without having to state the obvious, this post followed a previous post regarding the commission's most recent arbitrary decision to regulate the placement of a single family home on 9.5 acres of land.

What will become apparent to you (it is apparently not already) is that these two decisions are not anomalies, but represent a pattern of practice.

You may be content to nitpick at each one of them if you wish (I don't recall you weighing in on the Truro decision), but that would suggest that you already have your opinion with regard to the legitimacy and efficacy of the commission's proclivity to over-regulate. It's a challenge to keep a staff of 41 busy!

Sorry to leave you scratching your head at the shop talk.

A "stealth" installation is one that the citizen might not ordinarily recognize as a cell phone antenna. The best "stealth" installations are those, for instance, inside church steeples (and even in those cases, people still get all hinky about the purported (and non-existent) health dangers). Another is a "flag pole" style, where the antennas and wires are hidden inside the pole and all the citizen sees is a fat white pole.

As far as I know, Hr. Hayden is perfectly happy with his relationship.

I'm sorry that this little story doesn't provide you with a first-rate scandal (I'm sure other authors on this site will oblige you better). This is just one run-of-the-mill example of how the commission ignores prudent land use in order to generate more filing fees.

what is your problem? The "sire" carries no patent (or latent) sexism in the least.

Man, take a chill pill.

Funny you mention that -- I actually went to a subcommittee looking for an exemption for a low-profile wireless installation, fully expecting to have my ausse handed to me, and they actually voted to grant the exemption; and the full commission followed suit.

On the other hand, I was denied an exemption on another which resulted in a more visible structure closer to the roadway (that was automatically exempt because it was 35 ft.). When I asked Rob O'Leary (then a CCC member) why they would do such a stupid thing, he said "people don't like these things." I reminded him that no one had opposed the exemption except the staffers, and he just shrugged.

I'm confused, Peter.

According to the decision (http://www.capecodcommission.org/regulatory/DRIdecisions/BarnstableMannheimDecision.pdf), the commission's original vote to approve with conditions was remanded and subsequently the full commission voted to deny the application.

Something must have occurred after this vote?

That would appear to be the Mannheim Trust property?

What did the owner do after this denial? (If your facts are accurate, the decision's clearly are not) Did he sue?

Peter -- all of the DRI decisions that involve residences are historical structures or houses within the historical district. While one can argue about the merits of extending the jurisdiction of the commission that far, at least it is written into the law.

What is interesting about your last comment is that the town itself cannot make the referral -- it is prohibited by the regulation. So gather a few disgruntled neighbors together and have them plea impassionedly.

Thanks Jack, although even after the explanation it still doesn't make a whole lot of sense.

Thank you too beagle -- I'll be leaving the "lies, deceit and corruption" to Peter Kenny.