The Zoning Board of Appeals on Wednesday denied neighbors' requests to change the use of Onset Oyster Corp's now commercial dock back to residential in a conflict that spans years and at least two directors of Inspectional Services.

David Stone, John Mulhern, and fellow residents on Granston Way and beyond in Onset argue that Robert Tourigny, owner of Onset Oyster Corp, is running an illegal commercial shellfishing operation in his backyard.

Tourigny harvests oysters from his 13-acre shellfishing "grant," which is OK'd by the town and state for the cultivation and harvesting of oysters.

At issue is Tourigny's dock, which the neighbors argued was inappropriately switched from residential use to commercial use last May when then interim Building Commissioner David Moore signed off on a "Chapter 91" waterways license that effectively deemed the dock commercial.

Even Moore, in a letter to Stone explaining why he signed the license, acknowledged that the issue was not a simple one, and noted that the neighbors should appeal to the state Department of Environmental Protection, which issues the licenses.

"I signed that form based on my interpretation, reviewed by town counsel, based on the court decision [of] Point Independence Yacht Club vs Wareham Zoning Board of Appeals, 2008. That decision stated that Wareham's Zoning Bylaws stopped at the town water line. Therefor[e] the use of the dock for a commercial activity was not under control of the town," Moore wrote, later noting that aquaculture is recognized by the state as a form of agriculture, and thus is able to bypass some zoning laws.

Moore continued: "This is undoubtedly a very unique case in that I have [been] asked to make a decision concerning a dock which is outside of town zoning. ... I suggest a better means of appeal would be through the [state Department of Environmental Protection], who issued the permit."

Further muddying the situation, in May of 2012, Myles Burke -- the former director of Inspectional Services who was fired for failing to obtain the necessary state certification required of the job -- had determined that the operation was, indeed, commercial, and Tourigny had "expanded the activity" allowed upon the residential dock.

Tourigny has been operating the shellfish grant for approximately eight years.

Neither Moore nor Burke is currently working for the town.

Sound complicated? Members of the Zoning Board of Appeals concurred: It is.

Zoning Board vice-chair Michael Martin took issue with whether the neighbors' appeal was properly filed.

Chair Ken Ferreira wondered if the issue was so complicated that the board's work would eventually be for naught, as any decision would likely be appealed to superior court, where the Zoning Board's decision wouldn't be taken into consideration.

"I just feel as though we have two very confident attorneys. We have a complicated issue with people who are aggrieved by a serious situation in a residential neighborhood. There are questions as to whether zoning applies [or] zoning doesn't apply," Ferreira lamented. "This isn't like a shed over a property line. ... This is a serious thing."

Both lawyers were allowed to present their cases.

"It's my position that David Moore did not have the authority to sign that [permit]," argued Diane Piette, who served as attorney for the neighbors and also owns a home on nearby Onset Avenue. "I think he exceeded his authority," she continued, later adding: "What Mr. Tourigny is doing -- marine use, industrial use -- is all prohibited in a residential zone."

Tourigny's lawyer, Gene J. Guimond, argued: "The property line for Tourigny's [residential] property ends at the mean low water mark. There is no activity that is taking place above the mean low water mark."

Guimond further argued that the Department of Environmental Protection incorrectly asked for the zoning determination from Moore. Tourigny was "accommodating the DEP personnel reviewing the file."

Nearly two dozen people attended the meeting and some chose to weigh in on the issue during a public hearing.

The Zoning Board was adament that speakers stay on topic.

"The only question before us..." explained Ferreira, "This is not a Walmart. This is not a site plan review for a major project ... is whether to accept [interim Building Commissioner] David Moore's signature or not."

That kept comments relatively straight forward -- either for upholding Moore's decision or for overruling it.

The Zoning Board members considered Moore's work in Wareham when making a decision.

"David Moore, during his job as interim Building Commissioner, did a hell of a job in everything he did. Whether or not he made mistakes... he was very credible, very thorough in everything he did," Ferreira noted. "I would say, 90-plus-percent of the time, I was very comfortable with his methodology. This one here is an oddball one because it's so complicated. ... I don't like the idea of relying on town counsel's advice, because did he have all the facts?"

Ferreira later added: "I think that the zoning officer should make the zoning decisions based on his research. ... I think Mr. Moore acted entirely lawfully in making his decision, right or wrong."

Ultimately, two members -- including Ferreira -- voted to overturn Moore's decision. Three voted to uphold his decision.

After the meeting, the neighbors said they were unsure if they would appeal to superior court.

"Based on case law ... it's clear that David Moore did not have the authority" to sign off on the permit, Piette argued, saying that she was worried that Wareham residents "can't have confidence" in the town's zoning bylaws due to this case.

Mulhern, one of the petitioners, was disappointed, nothing that the decision was not the outcome the neighbors were expecting.

For more information on the issue, click the related story below!