Appeal of bureaucratic overreach and threat to revoke building permit. Staff objects to Appeal, omits info. Back at Board of Appeals on July 11, 2023
Presentation to the Appeal Board on 7/11/2023
Lyme Properties and XYZ Dairy, LLC simply seeks for the Lebanon Building, Planning, and Development officials to abide by their own written rules. There is a documented pattern of their failure to do so, and XYZ Dairy, LLC continues to bear the costs of those errors and delays.
Yet again, we have engaged our Attorney Philip Hastings to provide the BCBA with supplemental information SUPPLEMENTAL STATEMENT OF FACTS AND LAW (submitted on Monday, June 19, 2023) in advance of the continued public hearing on the matter on July 11, 2023 at 7:30PM.
Attorney Hastings provides a detailed response to the Staff Memorandum that we received on Friday, July 2, 2023. This Staff Memo chose to omit the original STATEMENT OF FACTS AND LAW (submitted the day prior, on Thursday, July 1, 2023), which the Staff had in their possession but chose not to include.
Let’s be clear: the Appeal Board was denied information from the Appellant by the Staff, the same Staff whose actions the Applicant is appealing.
Furthermore, the June 1, 2023 Staff Memo also omits additional material information, as the SUPPLEMENTAL STATEMENT OF FACTS AND LAW outlines and makes erroneous statements about River Park. For example, it states that the 1 River Park building permit (for which we paid the City a fee of $90,000) was “allowed to expire” by the applicant, which ignores the commonly accepted practice of “tolling.”
The BCBA must ask the question: why is the Staff not providing them with the full picture?
It would be reasonable to suspect that the Director of Planning and Development’s objection to the BCBA hearing the case is to protect the Staff from embarrassment as the initial Appeal, Statement of Facts and Law, and subsequent testimony submitted by Lyme Properties illustrates the ultra vires actions of the Building Inspector, and the continued defense of those errors by the Planning Department.
It is unfortunate and unnecessary that it has come to this, and that Lyme has had to continue expending time, energy, and resources addressing a simple mistake by the Staff that could have been quietly resolved when the errors were first brought– privately and respectfully– to the Staff’s attention in the initial March 7, 2023 memo.
Instead, the Staff has withheld info and objected to this Appeal not on the merits of Lyme’s complaint about their ultra vires treatment of River Park, but rather by requesting that the BCBA reject the Appeal because they say it arrived on day 31 or 32 of the 30 days allowed.
That, of course, conveniently ignores the interim communication on Day 15 and the subsequent 2-week lack of response from the same official whose actions we are appealing.
Since the Staff has made this a timing issue, let’s look at the timeliness of actions by the Staff.
The full record further illustrates the double-standard between the Staff’s insistence on the strictest-possible standard when it comes to taxpaying property owners, versus their own failures to respond in a timely manner, and in accordance with their own rulebook.
Note that this ongoing delay caused by the ultra vires actions of the staff has been disruptive and costly to numerous efforts that had re-started after stoppages in 2016, 2018, and 2020. As noted in Lyme’s first memo on March 7, 2023,
“Since initiating excavation on 1 River Park in November, 2022– and having heard no response for over 60 days to my December 9, 2022 memo to that effect other than my meeting with [DPW] officials on December 15, 2022– I have been engaged in the requisite conversations with project partners that must be restarted every time we attempt to initiate work on any phase of River Park.”
It is important to note that the Building Inspector’s first communication– threatening a retroactive revocation of the Building Permit– was not received until 68 days after XYZ Dairy, LLC’s December 9, 2022 memo notifying the City of commencement of construction and subsequent stoppage due to the City’s stormwater pipe running through the basement.
Since the December 9th memo, Lyme was simultaneously awaiting a response and direction from the City of Lebanon about how it wanted River Park to proceed with relocating a municipal stormwater pipe that was running through the intended basement of 1 River Park, and required City instruction before proceeding. That guidance arrived on Day 55.
By the time the Building Inspector, multiple memos and a meeting later, issued his March 24, 2023 communication finally accepting that 1 River Park had commenced, it had been 115 days since work proceeded and then put in limbo.
The Building Inspector could have dropped it then, but he elected to continue applying the ultra vires conditions of approval (now the subject of this Appeal) after Lyme had pointed out they were outside the bounds of the building permit and his authority.
The Building Inspector insisted that those ultra vires conditions had to be completed in the remaining 65 days of the original 180 day time-clock [Note: a time-limit that, as we have demonstrated, does not apply] or the building permit would be invalidated [Note: an interpretation of the code we also believe to be incorrect].
By the time we received no response to the April 10, 2023 communication and opted to utilize the City’s own Appeal Process, 147 days of delay had transpired.
The first hearing of the BCBA on this matter was on the 188th day of delay, June 5, 2023. The second hearing of the BCBA on this matter is scheduled for July 11, 2023, which will be 224 days since XYZ Dairy, LLC commenced construction on 1 River Park.
Having missed the April start of our construction window to avoid incurring the added cost of winter conditions, River Park must now either absorb an additional cost caused by the City, as we seek to maintain the Building Permit put in limbo by these ultra vires actions.
On Monday, June 19, 2023 XYZ Dairy, LLC submitted to the City of Lebanon a memo entitled “Delay on Building Permit #2022-0529, in violation of Lebanon Building Code 36-5” related to a building permit application another property owned by the Appellant.
This memo calls attention to the Building Inspector’s failure to respond in a timely manner to Building Permit #2022-0529, which was not issued until March 28, 2023, 70 days after the permit fee was paid.
As legally required per Article 36-5 of the City of Lebanon Building Code, “the Building Inspector shall act to approve or deny a building permit within 30 days.”
This further illustrates the Building Inspector’s failure to act within the bounds of the City’s ordinances when it relates to XYZ Dairy, LLC.
8. The April 6, 2020 memo from Lyme Properties and the subsequent April 9, 2020 response from then Lebanon Director of Planning & Zoning David Brooks, as included in the April 25, 2023 Appeal packet, was included to illustrate a past, similar situation in which the Building Inspector’s ultra vires conditions and erroneous decision was ultimately proven to be incorrect and outside of the relevant Lebanon ordinances.
The refusal to issue those Building Permits in accordance with the City’s regulations cost XYZ Dairy, LLC significant lost revenue from the sale of River Park housing lots.
The prospective buyers of those lots lost significant time, energy, and resources they had invested in the architectural design and planning.
9. The City of Lebanon did not meet the 4pm deadline they set for Monday, June 19, 2023 to supply additional information to the BCBA.
We are trying to avoid the same again.
RELEVANT COMMUNICATIONS
December 2022 - April 2023
Compendium of Communications between Lyme and City on 1 River Park building permit, commencement of construction, and Stormwater line issue.
June 1, 2023
XYZ Dairy, LLC’s Attorney’s official Statement of Facts and Law for Appeal Hearing on June 5, 2023.
NOTE: This was not distributed to the Building Code Board of Appeals prior to the 6/5/23 hearing, despite the Staff Memo not going out until the following day.
June 2, 2023
Staff memo sent out to Applicant and Building Code Board of Appeals, suggesting that the issue not be heard and that they need more time to respond.
Staff Memo recommending that the Appeal not be heard because the appeal missed a 30-day deadline, which ignores that in the interim Lyme had communicated to the City requesting additional information and never received a response.
The April 10, 2023 communication by Lyme about the Building Inspector’s 3/24/23 memo, providing additional information and asking for additional information on the continued issues.
The April 10, 2023 response from the Lebanon Deputy Planning and Development Director saying the Building Inspector “is out of the office this week and will be unable to reply until he returns.”
June 5, 2023
Meeting is continued to July 11th, 2023, and both parties are granted two weeks to supply more information.
Why don’t they want the appeal heard?
June 19, 2023
Additional information supplied to the Board of Appeals by both parties:
River Park: Supplemental Statement of Facts and Law and comments on each of proposed conditions.
City of Lebanon: Legal Memo again challenging solely on the basis of timeliness of appeal, and again ignoring the April 10, 2023 communication.
