Westport Point neighbors fire back at lawsuit

Would-be intervenors say letting large 'structure' stand would set damaging precedent, impact their quality of life and property values

By Ted Hayes
Posted 4/15/24

Four Westport Point residents have filed a motion to intervene in a lawsuit brought against the Westport Historical Commission by a neighbor who contends the town treated him unfairly and failed to …

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Westport Point neighbors fire back at lawsuit

Would-be intervenors say letting large 'structure' stand would set damaging precedent, impact their quality of life and property values


Four Westport Point residents have filed a motion to intervene in a lawsuit brought against the Westport Historical Commission by a neighbor who contends the town treated him unfairly and failed to follow its own laws as he began building a large pool-related structure at his $3.65 million riverfront home.

Robert Branca of 2015 Main Road, along with James Sabra, are co-trustees of a trust that owns the home. They recently filed suit in Massachusetts Superior Court after a months-long disagreement over whether the commission’s rules and standards apply to the project, for which Branca received two building permits last year.

Several months after work started on the project, neighbors complained last November that he had not asked for nor received review before the commission and specifically, failed to seek either a certificate of appropriateness, non-applicability or hardship from the commission, one of which is required when a project in the district is visible from a public road, park or the water.

Members of the historical commission have been firm in their reading of the town’s rules, with members stating multiple times over the past six months  that Branca never followed the steps required of him in obtaining permits to undertake the project. They also earlier this year denied his application for a certificate of appropriateness, which he filed at the commission’s insistence. And more recently the town has filed an enforcement action that seeks the structure's demolition, fines and the awarding of attorneys' fees.

Branca has contended that commission review is not necessary, and claims in his suit that the town’s building official and commission vice chairman agreed before permits were issued that such review was not required in his case.

The neighbors

The four neighbors who filed motions to intervene — Pamela Trippe, Sally Harty, John J. Moriarty and Erin O’Boyle — are all neighbors, and Trippe and Harty are direct abutters of the Branca property.

In a 115-page motion to intervene, the neighbors wrote that the commission’s oversight — and the requirement that residents obtain certificates when planning to undertake work — are a crucial means of protecting the point’s character.

“The Commissions’ (sic) efforts to uphold and enforce these mandates are of critical importance to maintaining the unique ambiance and historical characteristics of the District both now and into the future,” they wrote through their attorney, Robert B. Feingold, in the motion filed last Wednesday, April 10.

While Branca has argued that the structure is exempt from such certificates in part because it is not visible from a public water body, their filing includes no fewer than seven photographs, taken from the Westport River, with the structure clearly visible from the water.

The neighbors contend in their motion that not only is the project not exempt from commission review, allowing it to go forward, and the structure to stand, would set a troubling precedent that could have wide ramifications on the character of one of the town's most bucolic neighborhoods.

“Applicants strongly believe allowing Plaintiff’s construction project to stand creates a precedent that completely undermines the authority of the Commission and the integrity of the District.”

"The fact that a home is situated within the District adds enhanced value and appeal to that property because owners in the District can rely on the fact that they will all have to play by the same rules when undertaking exterior projects there," they write. "This, in turn, ensures that the historical landscape, buildings, views, and the overall “context” of the District remains harmonious, now and into the future.

Erroneous permits

Further, the neighbors allege that building official Ralph Souza issued the permits “erroneously" in the Spring of 2023.

Souza, they contend, “apparently believed ... that Plaintiff intended to build an inground (sic) pool at grade not viewable from a public body of water.”

“As a result, the Building Inspector issued the building permits without first ensuring that the condition precedent of obtaining a Certificate from the Commission had been met. And, as a result, none of the Plaintiff’s abutters and neighbors in the District received notice or an opportunity to be heard in relation to his very substantial construction project in the heart of the District.”

They challenge Branca’s assertion that the large concrete structure, nearly nine feet in height, is a “wall,” as he has referred to it.

“It is anything but a wall,” they allege.

“A wall is a divider of spaces. This is a structure that encompasses spaces; it does not divide them. It would enclose a room and serve as a foundation for a swimming pool, a spa, a pergola and a kitchen."

"If these facts alone were not already enough to confirm that Plaintiff’s project requires Commission review, the additional fact that the structure can be viewed from a public body of water from three directions does."

"Plaintiff knows full well that his project is viewable from a public body of water which completely undermines his claim of exemptions and this Appeal.”

Back and forth

Throughout the last five months’ commission proceedings on the matter, Branca has contended that he made every effort to follow the letter of the law, wanted to work with the town in good faith, and contends that the claims made by neighbors and the commission have unnecessarily cost him thousands of dollars.

But in the filing, the neighbors call him out for “seeking forgiveness rather than permission,” and write that had he filed for the appropriate certificate prior to the issuance of building permits, he “would have been able to immediately correct his course.”

That preliminary step was well known to him, they note, as Branca, a real estate developer and attorney, sought a certificate of appropriateness from the commission when he did roof work in 2021.

As for his contention that Souza and commission vice chairman William Kendall conferred and agreed a certificate was not required prior to the issuance of permits, "Mr. Kendall vigorously denies this allegation."

"Moreover, Mr. Kendall did not have the authority to give a 'greenlight' to the Building Inspector."

In any event, they add, even if a certificate of appropriateness was not required, a certificate of non-applicability would have been.

If the court allows the structure to stand without commission review, neighbors write in their motion that "their constitutional interests in the use and enjoyment of their property, as well as their interest in maintaining the economic value of their property, stand to be significantly diminished."

On intervening

The would-be intervenors ask to be added to the suit because their interests are and will be impacted by the project, regardless of whether they are all direct abutters, and note that judges generally have wide latitude in adding intervenors to suits.

In this case, they write, "the applicants have significant personal interests in the outcome of this litigation."

"The Applicants are concerned that the very nature of one of Massachusetts’ most historic villages would devolve into just another waterfront playground with no regard for the historic preservation that has been sacred to the homeowners who regard themselves as custodians of their properties."

Enforcement action

As a resolution waits in the court case, the Town of Westport has filed an enforcement action in court, and seeks the following relief:

• An injunction ordering Branca and James Sabra, co-trustee of the ANC Nominee Realty Trust, to cease construction and remove all portions of the structure that have been constructed without a proper certificate.

• An order allowing the building commissioner and other town agents "to enter the Property to conduct inspections for compliance."

• An order requiring Branca and Sabra to pay fines of $300 per day for each day during which the structure has existed, or continues to exist.

• The town also seeks repayment of attorneys' fees, and any "such other relief as the Court deems just and equitable."



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