WELLFLEET — A Land Court judge has settled a dispute between the town and Kevin Sexton over the June 2021 clearcutting of a swath of woods on his family’s land next to the Lecount Hollow Beach parking lot. The property is in the Cape Cod National Seashore.
The town’s position was that cutting timber in the Seashore district may be done only to control brush or to maintain pastures or a right-of-way.
Sexton argued that the scrub pine he cleared did not qualify as “timber” and was therefore unregulated under local bylaws. He further argued that he did not need to get a permit before clearing more trees.
Sexton runs Cooks by the Sea, a cottage colony on 24.6 acres just south of the beach. It was one of the few businesses in operation on the shore before the 1961 establishment of the National Seashore. Cooks is thus classified as a preexisting nonconforming use, exempt from zoning provisions unless the use changes or is expanded. Sexton has argued that clearing areas to add parking and enlarge his driveway is not expanding the use of the land.
Sexton began cutting trees on the property on June 14, 2021. He did not have a permit, but his brother Kristian had that same day informed Paul Fowler, the town’s building commissioner, of the planned tree-cutting. It continued into the next day, when Fowler issued a cease-and-desist order.
A week later, Fowler issued a second notice saying that if Sexton planned to do any further cutting he would need to submit a plan for the proposed use of the cleared land.
Sexton appealed both orders to the zoning board of appeals. He argued that scrub pines could not be characterized as timber, which he defined as wood that could be used in construction or that had an economic value.
Sexton further argued that because private parking is allowed by right in the Seashore district as an accessory use, his plans did not represent an expansion of a nonconforming use and did not require a permit.
Both appeals were denied by the ZBA, and Sexton went to Land Court in September 2021.
In a ruling issued late last month, Land Court Judge Kevin Smith upheld the town’s cease-and-desist order as well as its interpretation of the word “timber.”
“The use of the word ‘timber’ in the bylaw was not intended to focus on a narrow category of trees that might be available for use in the construction of buildings or other structures,” Smith wrote. “The interpretation urged by Sexton would allow all scrub pine to be clear cut over the entire NSP District — which Sexton argues he has the right to do — solely because that type of tree may not be suitable for commercial use.” Such an interpretation would undermine the objectives of the National Seashore District, the judge said.
Judge Smith also agreed with the town’s building commissioner and zoning board that cutting down trees for additional parking and a driveway would be an expansion of the nonconforming use. He therefore supported the ZBA’s determination that a special permit is required before Sexton does any further clearing.
Judge Smith annulled a portion of the zoning board’s decision where it determined that Sexton’s cottage colony already has adequate parking and that his effort to create additional parking and a driveway is forbidden because it is incompatible with the National Seashore’s federal standards.
The zoning board was given only the task of reviewing the propriety of the building commissioner’s decision that a building permit and special permit were necessary before Sexton could cut more trees to expand parking. “Instead of limiting its ruling to those issues, the board jumped the gun and ruled that Sexton’s tree cutting is an improper extension of cottage colony use,” Smith said. The board also based its determination on the federal standards rather than local bylaws, which the judge called “a mistake of law.”
Neither the town’s nor Sexton’s attorneys responded to calls and emails seeking comment on the judgment. Sexton also did not respond to an email. Sharon Inger, who chairs the ZBA, said her panel had not yet been told about the judge’s ruling.