When the ocean gobbles up a dune, what's next?

The push, as has happened so many times, is for a ‘variance’

And this is “moved back.”

*****

The drama of the ocean scouring a dune -- undermining an old boathouse renovated into a home, coming within feet of sending it toppling into the Atlantic before a temporary rescue moved the building back -- gripped people across the country a few months ago.

Now comes the much lower profile, mundane, “unsexy” but crucial next steps; how volunteers in a small town named Truro grapple with zoning laws, due process, a wealthy landowner with a savvy lawyer, a nagging sense that rules and boundaries are being pushed, an environmental challenge sure to come again – in short, how and whether local government works.

Camera crews and drones aren’t recording meetings that confront these decisions, nothing’s going viral about the plodding process, but this is where the real democratic action takes place. Often that unglamorous process unfolds before zoning boards, swirling around a word:

“Variance.”

But first, facts in this case:

Built in 1850 (or perhaps a little later) as part of Cape Cod’s lifesaving service, on South Pamet Road beside Ballston beach and the Atlantic Ocean, this 1500-foot structure on high dunes has been a residence since 1940 and faced the perils of erosion more than once, moved most recently in 2015. Locals know that some years Truro cliffs lose a few feet to wind and wave, other years 20, 30, as much as 60 feet. Being precarious didn’t stop Tom Dennis, an engineer from Springfield, with his wife Kit, from paying $825,000 for the place.

Seems Mr. Dennis has a fascination with Truro property, controversial homes, and engineering challenges. He has bought at least four properties in town, including the Outer Cape’s most controversial structure known as the Kline house, across the sandspit on the bay side near Edward Hopper’s famous home and studio, a sprawling modern mansion with a lot of concrete creating 8333 square feet. Neighbors fought the original owners for years until Mr. Dennis negotiated a $3 million settlement to pay off the town in return for an occupancy permit.

That’s called deep pockets, reportedly made by building food processing plants.

Back to the Atlantic. When huge chunks of dune vanished in a mid-January storm and the Ballston house teetered, three foundation pilings exposed, contractors managed to move the structure away from immediate danger. But the lot combined with another next door (that Dennis bought to help the cause) already had structures on it, so adding was beyond what zoning would allow by right. The zoning board would need to approve a “variance” to make it legal, and habitable.

Ahhh, variances; they have been elemental to our communities for as long as zoning has existed.

In theory they are granted only in extraordinary circumstances, when a “hardship” exists that has nothing to do with some kind of mistake the land owner might have made, not prompted by desire or whim. A “hardship” is not a hope to build a cool big deck that juts toward the lot line, or dig out a bigger footprint for a septic system and another bedroom.

But in practice zoning boards grant a lot of them, for little things like being a few feet too close to a setback, to big things like building an addition to get a water view, even major if marginal subdivisions. Most are approved unless neighbors object. Truro Zoning Board of Appeals Chair Art Hultin has used the term “mercy variance” for small ones, and that’s just about right.

The problem is that for generations volunteer zoning boards have been dominated by members who are builders, developers, and real estate agents – people most interested in how land becomes buildable. Variances have been used to accomplish all kinds of things, including creating profitability and satisfying hopes and dreams. Whatever “hardship” is used for justification might occupy the mind of the landowner or developer rather than express an exterior imposition.

So variances have played a major role in every town’s development. But notice this: Because zoning boards often allow much more latitude than the law, if a neighbor or group decides to appeal to Superior Court – and have the money and stamina -- that appeal often is upheld. Judges don’t fall back on “mercy,” they lean on legalities.

Then the flip side: The more that towns resort to “managing through variances,” as some call it, the more they create precedents and justifications for yet more variances to come. Some might call that a slippery slope, or in this case an eroding slope.

Back to the case at hand:

Seems like Mr. Dennis’s hope to take the house and set it back where other buildings sit already would increase the density of the remaining land, maybe sneak over setbacks, and need a variance. But in the days leading up to a hearing last Monday, March 28, Dennis’s astute attorney Ben Zehnder convinced the Truro building commissioner, the town’s zoning enforcement officer, that removing a kitchen stove would turn the building into a studio rather than a dwelling. Therefore, it would qualify for a permit to allow renamed studio to park on what remains of the land.

The building commissioner agreed, and issued the permit.

What happens if people don’t agree with the building commissioner? They can appeal – to the appeals board. Meanwhile, the permit remains valid. Whether the building commissioner should have consulted with the appeals board before making that decision is another wonder that hovers, though certainly he wasn’t required to do so.

At the March 28 meeting, attorney Zehnder argued that the board should continue without any findings because there were four voting members present, a legal quorum though by custom the board has held off on big decisions if only four members sit; meanwhile, a formal appeal by a neighbor had not yet gone through the full filing process.

A member or two of the zoning board would have preferred to move forward and hear the case (as well as acknowledge many community members attending). But practicing discretion, trying to be sure every procedural step was proper, maybe concerned that Mr. Dennis had the money and legal firepower to make this a costly engagement, the board voted to continue for at least another month.

Meanwhile, permit in hand, work can continue, the house can be moved again, but no occupancy permit issued without further review.

Does this maze sound familiar? If you’ve ever been engaged in town government, especially around zoning, the answer would be yes.

Meanwhile, remember one more thing:

The Atlantic Ocean has the final word. All this will soon be wiped away, gone to the sea, and no variance can change that.

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