At a meeting marked by emotional exchanges between neighbors, the Chilmark zoning board of appeals voted unanimously this week to uphold the town building inspector’s decision to allow a large house compound on Nashaquitsa Pond.
The board ruled at a public hearing Tuesday that building inspector Leonard Jason Jr. was correct in refusing to revoke a building permit for an accessory structure on the property of Adam and Elizabeth Zoia that houses an indoor pool, spa and gym. The board also denied a request by abutters to have the buildings measured by an independent surveyor. The Zoias’ neighbors, Jill and Kenneth Iscol, claim the accessory structure violates zoning bylaws and requested an independent survey of three completed buildings on the property: the main house, accessory building and converted barn that is now a garage.
Adam Zoia and Ken Iscol both attended the meeting and exchanged heated words.
Built in a highly visible pondfront location on the former Harrison property, the Zoia compound has sparked widespread discussion in town about whether there is a need to regulate large houses.
The actual square footage of the buildings on the compound remains in dispute. According to Mr. Jason the main house and accessory building together total 10,520 square feet (when contacted by the Gazette Mr. Jason was out of the office and did not know the square footage for the garage). The Iscols claim that all three buildings exceed 20,000 square feet.
The ruling by the zoning board concludes a public hearing process that began in July after the Iscols began their proceeding against the town in April. The Iscols first asked Mr. Jason to revoke the permit for the second structure on the Zoia property. When he eventually declined, they appealed to the town zoning board.
Some early issues in the dispute have since been resolved, including the location of a generator and retaining wall on the property and the design of outdoor lighting. The central remaining issue is whether a special permit was needed for the accessory building.
The board’s decision Tuesday to uphold Mr. Jason was partly technical and based on the fact that the Iscol appeal was filed more than 30 days after the building permit was issued to the Zoias. (The building permit was issued in January 2011; the appeal was filed in April of this year.) Special town counsel Dan Perry of Perry, Hicks and Deshaies in New Bedford advised that the first appeal was not timely.
Mr. Jason underlined the point.
“If they don’t have the right to an appeal I think everything else goes away,” he said. “There’s nothing before you, they don’t get a second bite of the apple.”
“I tend to agree with that,” said board chairman Christopher Murphy.
But Diane Tillotson of Hemenway & Barnes in Boston, the attorney for the Iscols, had a different view. Ms. Tillotson said Mr. Jason did not respond to her April letter requesting enforcement of the zoning violations. Mr. Jason denied the enforcement in a July 21 letter, which the Iscols subsequently appealed on August 15.
Ms. Tillotson also argued that the Iscols had been misled by Mr. Zoia throughout the building process.
“There were several instances where misinterpretations were made to my clients by the Zoias, whether intentional or not, considering the compliance of the wall with the zoning requirements, the generator with the zoning requirements and most importantly that the building we are talking about, the accessory structure.”
Ms. Tillotson said her clients believed the structure would be 1,500 square feet or less, but it turned out to be 2,300 square feet.
“We were watching the process, we were getting the minutes of the board of health . . . and my client was doing what he believed was the neighborly thing to do,” she said.
She pressed the question of the accessory building and the need for a special permit for the swimming pool. In his recommendation to the board, Mr. Perry said the indoor pool does require a special permit, although the board took no action on the matter.
“The real question that I can see that comes up is we require a special permit for the indoor swimming pool, which our lawyer said that’s the way he reads it,” Mr. Murphy said. “The town has operated for many years under the assumption that you do not need a permit for the indoor pool, so where does that leave us?”
Mr. Zoia’s attorney, Kevin O’Flaherty of Goulston & Storrs in Boston, said it was Mr. Iscol’s responsibility to inquire about detailed construction documents.
“I dispute vehemently the representation here by counsel that there were misinterpretations here; there were not,” Mr. O’Flaherty said. “If a neighbor has a beef, the neighbor has 30 days. It’s the neighbor’s obligation to go and figure that out . . . the law does not allow a neighbor to lie in the weeds and watch as his neighbor builds a home and wait 15 months until he raises his hand and says, I don’t like this.”
Mr. Iscol said he continues to question whether the project was built in compliance with town zoning rules.
“I’m not sure what was built in any of those buildings and I think they have unclean hands,” he said. “Anybody who did everything according to code would not object to having their as-built certified survey done. To me, when you’re saying you can’t do that, in a situation like that, you’re hiding something. I don’t know what he’s hiding, that’s why I asked to have all of the walls and buildings certified other than by his surveyor.”
Mr. Murphy said Mr. Iscol’s request was not something the board was prepared to move on, and called on Mr. Jason for guidance.
“The building inspector has the right and a duty to do a job in a certain way, if he needs more information then he has a right to request more information from the application,” Mr. Murphy said. “Was the info you got adequate?”
“Yes,” Mr. Jason replied.
Mr. Zoia said he was sorry if Mr. Iscol felt misled, but he said: “We built what we said we would.”
He continued: “All I can say is I felt like it turned into a witch hunt. I paid $100,000 to move the generator twice at the town board’s request. I have nothing to hide. When I told Ken the walls were in compliance I truly believed that.
“This feels as though Mr. Iscol really wants to be proven right and is on a fishing expedition and it feels like persecution. We’ve always said from the beginning we would follow the rules as written and we did at the time. This needs to end.”
In the end board member Frank LoRusso moved to deny the appeal and uphold Mr. Jason.
“As much as I understand Mr. Iscol’s point of view, I don’t think it’s within this board’s purview to request someone to go onto Mr. Zoia’s property to fulfill Mr. Iscol’s request,” he said. “I think it’s way too outrageous of a request and I don’t think the board should have the right to do that.”