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HomeMy WebLinkAbout0810 WAKEBY ROAD - GIFFORD SAND PIT �`�`` /'1 �^� �J ��' `- � -�-.. _....., -... p@tom. � �-v, .wJ.'s Fetters to: Gregory M. Downs, Esq. (C. Keyes Lawyer) 78 Route 6A Sandwich, MA Christopher Keye's (Check with J. Gillis) M Charles M. Sabatt, 25 Mid Tech Drive West Yarmouth, MA (Patricia Gifford's attorney) Patricia Gifford (Check with J. Gillis) TV �T i i G I i Harriet Hayward, Trustee and William Gifford 800 Wakeby Road Marstons Mills, MA 02648 Christopher Keyes 44 Asa Meigs Road South Sandwich,MA 02563 Attorney Charles M. Sabatt 25 Mid Tech Drive West Yarmouth, MA 02673 Attorney Gregory M. Downs 78 Route 6A Sandwich, MA 02563 Attorney J. Douglas Murphy Murphy and Murphy Lock Drawer M Hyannis, MA 02601-1412 1 I �• The Town of Barnstable �FSHE T Department of Health Safety and Environmental Services Building Division MA S& " 367 Main Street,Hyannis MA 02601 z639• �0 Off ArE p�� Ralph Crossen Fax: _)un-/vu-b'zsu Building Commissioner CEASE AND DESIST October 22, 1997 Harriet Hayward,Trustee and William Gifford 800 Wakeby Road Marstons Mills,MA 02648 Re: 810 Wakeby Road,Marstons Mills,MA Map/parcel 013/052 Dear Property owners: I am in receipt of the attached request for zoning enforcement. Upon investigation,I have determined that the use of your property for a gravel pit,processing of fill,the screening of fill,depositing of fill,brush and clippings or any other similar use is in violation of Barnstable zoning section 3-1.4. These uses must immediately CEASE AND DESIST. Our records reflect that,from a zoning standpoint,you have a special permit for a salvage yard. This use is in addition to the residential use that has always been in effect there. Any other uses than these two(i.e. salvage and residential)have no preexisting non-conforming status and must end. In response to the above referenced request,I also reviewed an affidavit previously submitted by William Gifford. I do not find it presents specific evidence based upon personal knowledge that establishes a gravel pit operation of the nature currently being conducted that began before zoning. You have the right to appeal this decision. If you so choose,we will be more than•happy to assist you. If we do not hear from you,and these unlawful uses continue,we will be forced to seek civil or criminal action against you. Sincerely, Ralph M. Crossen Building Commissioner RMC/km cc: Attorney J. Douglas Murphy Attorney Gregory M.Downs Attorney Charles Sabatt Robert Smith,Town Attorney Christopher Keyes enclosure DELIVERED IN ND 9;7 ffleived by Pate CHRONOLOGICAL LIST OF PARTIAL ABSTRACT OF OBSERVATIONS MADE BY JAMES P. McDONOUGH, II REGARDING THE SO CALLED GRAVEL PIT AT ASSESSOR' S MAP 13 , PARCEL 52 I 1 . 3/25/98 - A treaded front end loader engaged in various loading and unloading activity. 2 . 3/25/98 - A truck bearing the name Keyes trucked at least three loads of what appeared to be loam off the property. 3 . 3/26/98 - 10 :30 a.m. there were two trucks loading material within the gravel pit, a white pick up truck and a dark green pick up. 4 . 3/26/98 - At about 11 : 30 a.m. a front end loader was in noisy operation belching thick black, smelly smoke . 5 . 3/27/98 - At about 11 : 00 a.m. a new, wheeled front end loader (one I had not observed previously) was working banking up material into huge mounds within the gravel pit . 6 . 3/27/98 - At -about 3 : 00 p.m. a front end loader (wheeled) and a backhoe front end loader combination were dumping soil onto a mechanical screener. 7 . 3/28/98 - At about 7 : 10 a.m. multiple machines were observed working at the screener. S . 3/28/98 - At about 8 :45 a.m. a white dump truck bearing the name Carl Lampi was observed being filled with soil . 9 . At about 3 : 30 on the same date I observed the same two machines which had been working all day, still producing noisy, noxious fumes . 10 . 3/30/98 - At 7 : 00 a.m. multiple machines were working screening loam. 11 . 3/31/98 - At 7 : 00 a.m. multiple machines were working screening loam. 12 . 4/1/98 - At 7 :00 a.m. multiple machines were working screening loam. 13 . 4/2/98 - I observed various machines on and off all day. 14 . 4/7/98 - In the afternoon there was much activity involving screening sand, loam or gravel . 15 . 4/10/98 - Was a very active day with many dump trucks loading and hauling material away from the gravel pit . 16 . 4/13/98 - At about 7 :30 a.m. an ARK trailer dump bearing the name "Top Kat Enterprises" was loaded up on site and removed material from the site. i 17 . 4/13/98 - At about 10 : 15 a.m. on this date I observed a truck bearing the name "Rice Truck" dumping fill . 18 . On the same date at about 10 :45 a.m. I observed the Rice truck once again. I back tracked this truck when it left the premises and followed it to a site at 111 Boardley Road where it was refilled with material and returned to the gravel pit to unload. A new house foundation was observed at the Boardley Road location. 19 . 4/15/98 - A large truck bearing the name "Act" and several other vehicles were loading at around 10 :30 a.m. 20 . 4/15/98 - At about 1 :30 p.m. on this date a huge tree pile was observed smoldering and burning. The Centerville-Osterville- Marstons Mills Fire Department arrived in force to extinguish the blaze. (extinguishment activities were not wholly successful and the fire resurfaced at a later date and had to be fought again) . I am of the belief no burn permit was obtained for this fire in advance of the event . 21 . 4/16/98 - At about 8 : 55 a.m. the ARK truck bearing the name "Act" was observed being loaded once again. 22 . 4/18/98 - Various machines working all morning. 23 . 4/21/98 - Various machines during the morning and afternoon. 24 . 4/22/98 - A loading and soil screening operation was interrupted by rain. 25 . 4/23/98 - At about 7 :30 a.m. machines were visibly working in the pit . At about 11 :30 a.m. a truck bearing the logo "C. Keyes" was observed loading soil . At about 1 : 35 p.m. a truck bearing the logo "C. Keyes" was observed dumping soil and reloading before departing the pit . 26 . 4/25/98 - There was noxious and noisesome activity in the pit all day until 7 :20 p.m. 27 . 4/27/98 - There was activity in the pit all day. 28 . 4/28/98 - Two machines were seen and heard in operation at 7 : 00 a.m. generating clouds of dust which blew into my backyard and over and into my home . 29 . 4/29/98 - Trucks were observed dumping at 11 : 00 a.m. and a front end loader was working at rearranging material in the gravel pit all afternoon. 30 . 5/1/98 - General activity with front end loaders around the pit . 31 . 5/4/98 - A neighbor reports to me that a truck bearing the logo "Fred Earl" was observed dumping. Two front end loaders were screening soil all day. 32 . 5/7/98 - Large open trailers were loaded and front end loaders were screening soil in the afternoon. 33 . 5/8/98 - As early as 8 :30 a.m. multiple machines were working in the pit . 34 . 5/12/98 - Front end loader was screening soil all afternoon. 35 . 5/13/98 - Machines were working screening loam at 7 : 30 a.m. and throughout the day. 36 . 5/14/98 - As early as 7 : 15 a.m. the machines were screening loan again and continued until well after 5 :00 p.m. 37 . 5/15/98 - As early as 7 : 10 a.m. the machines were working screening loan. At 1 :30 p.m. I photographed two front end loaders working in the pit . 38 . 5/18/98 - Observed a truck bearing the name "Carl Lampi" being loaded with soil and driven away from Parcel 52 . 39 . On 5/19/98, 5/20/98 and 5/21/98 I observed various machines working and screening soil on Parcel 52 throughout each of the days . 40 . 5/23/98 - At 7 : 15 a.m. I observed a pick up truck driving along my rear lot line (the common boundary between my lot and Parcel 52) . Throughout the day I observed a front end loader appearing to be pushing dirt and soil around the site of the underground fire which had started April 15, 1998 and appeared to have continuously burned thereafter. Dust, odor, fumes .and smoke from this combination of activities permeated the residential area. At 6 :15 p.m. the front end loader was still working at various locations in Parcel 52 . 41 . 5/30/98 - Between the hours of 4 : 00 and 5 : 00 p.m. I observed a truck or trucks bearing the name Barnstable County Supply make several trips in and out of the pit located on Parcel 52 . 42 . 6/2/98 - At 7 :30 a.m. I observed two front end loaders operating along my rear lot - line . t 43 . 6/2/98 - I observed a truck bearing the logo "C. Keyes" being loaded and driven off the site (the truck bore the Massachusetts Registration F69-114) . On the same date I followed this vehicle after it had been loaded on Parcel 52 directly to Red Brook Harbor Road in Bourne where the truck was dumped at a residential site . I have reviewed the foregoing chronology and to the best of my knowledge, information and belief it is a true and accurate recitation of an abstract made from logsintained by myself, under pain and penalty of perjury, this day June 1998 . James P. McDonough sys1\mcdonoug\Iist.2 AFFIDAVIT I James P. McDonough, an individual residing at ill Mockingbird Lane, Marstons Mills, (Barnstable County) , Massachusetts (02648) on oath depose and state as follows : 1 . I reside with my wife and two minor children at 111 Mockingbird Lane, Marstons Mills, Town and County of Barnstable 02648 (herein my "Residence" ) . 2 . I have resided at my Residence since on or about 1980 . 3 . Prior to occupying my Residence in 1980 I made a personal and extensive on site review of the neighborhood and surrounding area. In addition, I conducted a limited amount of research utilizing records at the Town Hall, Town of Barnstable to ascertain current and prospective uses of property in the neighborhood. 4 . My Residence is located on Parcel 21 as shown on Town of Barnstable Assessor' s Map Sheet 13 . I am contiguously abutted to the southwest by an approximately 16 . 66 acre (according to said Assessor' s sheet) parcel of land identified as Parcel No. 52 on Map Sheet 13 (herein "Parcel 52" ) . 5 . When I first occupied my Residence in 1980 the area comprising Parcel 52 was heavily treed, undisturbed forest . The land sloped up from Wakeby Road to the north and northeast, ending on a large hill next to my residence . There was no commercial activity evident by sight or sound prior to 1996 . What activity did occur was restricted to the area immediately adjacent to Wakeby Road. Attached hereto as Exhibit 1 is a photograph taken by me during 1987 which is a true and accurate representation of the forestation of the area lying southwesterly of my Residence between the period 1980 to 1996 which has since been the subject. of the following described activities. 6 . In 1996 there began to occur more and more frequent signs of more and more intensive activity on Parcel 52 , including surface land clearing, vegetation and tree removal and destruction, stripping, excavation, processing and removal of soil, and delivery of various types of soils to the property for screening and storing. In addition there were deliveries of truck loads of rock, stumps and mangled vegetation. By early 1997, the persons operating the strip mining business in Parcel 52 had erected a barbed wire fence along the boundary and had clear cut and stripped right up to my boundary line, as appears from the photograph attached hereto as Exhibit 2 . 7 . By 1997 sand and gravel immediately to the rear of my Residence and visible to me at all times had been excavated from Parcel 52 to a depth I estimate to be approximately 50 feet, as i appears from Exhibits 3 and 4 attached hereto, which are photographs taken directly to the southwest of my Residence . 8 . The excavation of the pit was to such a depth that I observed considerable quantities of water pooling in the bottom which appeared to me to ground water seeping up rather than a collection of precipitation. Not long after I observed what appeared to be ground water seeping onto the surface, persons operating in and around the pit caused the pooled area to be filled over with sand and gravel . 9 . During the past 2 years I have seen numerous vehicles, ranging in size from pick up trucks to 18 wheeled "ARK" trailers transporting material into, from and around within the gravel pit . Such activities occur right up to the boundary line with my lot as evidenced by the photograph attached as Exhibit 5 which is a photograph taken in March of 1997 . An example of the huge dump trucks unloading on the site is attached as Exhibit 6, taken in March of 1997 . 10 . I have also observed persistent, extensive activities within Parcel 52 leading to utter devegetation and the storage of large piles of brush and wood, as well as fires apparently initiated to destroy the same. 11 . In addition, during this period of time, and more specifically in the spring of 1998, I have observed various types of material being brought onto the property comprising the gravel pit, heaped and bulldozed into huge piles and then reprocessed and transhipped from the pit . Photographs taken in April of 1998 and attached as Exhibits 7 and 8 are illustrative of large dump trailers unloading on the site; the photograph attached as Exhibit 9 illustrates the loading operation a couple of days thereafter; and the photograph attached as Exhibit 10 demonstrates two front- end loaders actively engaged in transferring material from a stockpile to a mobile screener. 12 . In addition, on or about April 13 , 1998, I observed a truck bearing the name "Rice" dumping material at the pit . I personally followed this truck when it left Parcel 52 and followed it to a site at 111 Boardley Road where it was refilled with material and returned to Parcel 52 and once again unloaded. 13 . On or about April 1997, upon information and belief, large "ARK" trucks dumped dozens of loads of soil and similar material on Parcel 52 . ' One of these ARK trucks was followed back to a land clearing operation that was underway on North Street in Hyannis. The truck was observed to be reloaded at the North Street land clearing operation and to immediately return to Parcel 52 where it was dumped. In the course of this day dozens of loads of such material were dumped on Parcel 52 . Subsequent observations revealed that the loads which had been observed being dumped on Parcel 52 were maneuvered by front end loader or bulldozer onto a huge mound from which other mechanical devices extracted loads for i processing through a mechanical screening device . The screened materials were subsequently observed being loaded into other trucks and shipped out of the pit at Parcel 52 . 14 . The activities I have described herein have persisted on Parcel 52 practically without interruption since 1996 , (with a two month hiatus between Zoning Board of Appeals Hearings in 1997/98) and the intensity of activity involving soil storage, processing and transporting in and out of the pit which has been created on Parcel 52 in the interim has even intensified since the Barnstable Zoning Board of Appeals entered its Decision, with the Town Clerk on January 27, 1998 upholding the Order of the Building Commissioner of the Town of Barnstable which ordered that all "use of the property for a gravel pit, processing of fill, the screening of fill, depositing of fill, brush and clippings or any other similar use is in violation. . . " of the Zoning Ordinance and must cease . 15 . Attached hereto and incorporated herein by reference as if fully set forth are excerpts of a "log" of my observations pertaining to Parcel 52 on Barnstable Assessor' s Map Sheet 13 which I compiled during the spring of 1998 following the action of the Zoning Board of Appeals in Case No. 1997-133 which upheld the cease and desist order of the Building Inspector of the Town of Barnstable which ordered the property owners to cease and desist from utilizing the property for a gravel pit, processing of fill, screening of fill, depositing of fill, brush and clippings or any other similar uses in violation of Barnstable Zoning Section 3-1 .4 . 16 . I have personally observed trucks bearing the names Carl Lampi, Top Kat Enterprises, "Rice" , "ACT" and "C. Keyes" entering onto the gravel pit property with loads of materials and being loaded with material to transport away from the gravel pit property. 17 . Upon information and belief on the, basis of my observations and reasonable surmise operations at Parcel 52 in the nature of gravel excavation, transportation, transfer, processing and the clearing, land stripping and processing of trees are being conducted by or at the request or direction of Christopher Keyes as the principal of Gifford Brothers Sand and Gravel . 18 . Activities in the pit on Parcel 52, including stock piling of wood and brush have caused several fires to be observable within the perimeter of the parcel . Fire emergency vehicles have responded from the Centerville-Osterville-Marstons Mills Fire District between April 15, 1998 and May 23 , 1998 . Upon information and belief, following an initial fire in a stock pile of brush and felled wood the fire site was bulldozed over and has resulted in subsequent "underground fires" . On occasion the wood smoke has settled over the adjacent residential area, including my residence, as though it were a blanket of fog. 19 . On sundry dates in May 1998 and to the date hereof heavy equipment, including front end loaders and bulldozers, portable screening machine and heavy duty dump and ARK trucks have been working on Parcel 52 . Without limiting the generality of the foregoing I specifically observed a "Carl Lampi" truck being filled on the site on May 18, 1998 and as recently as June 5, 1998 a truck bearing the name "C. Keyes" was observed being loaded on Parcel 52 . On June 2 , 1998 I observed a truck bearing the logo "C. Keyes" being loaded and driven off the site (the truck bore the Massachusetts Registration F69-114) . On the same date I followed this vehicle after it had been loaded on Parcel 52 directly to Red Brook Harbor Road in Bourne where the truck was dumped at a residential site . 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[ ., .n.I� .cam - 2Y'T`�:"c •ail;..`.+•,- �H4i ,•\ I �I i I [ ] [R013 052 . ] LOC] 0810 WAKEBY ROAD CTY] 03 TDS] 300 CO KEY] 3668 ----MAILING ADDRESS------- PCA] 1301 PCS] 00 YR] 00 f" PARENT] 0 HAYWARD, HARRIET P TR MAP] AREA] 13AC JV] MTG] 0000 GIFFORD, WILLIAM SP1] SP21 SP31 800 WAKEBY RD UT11 UT21 16 . 66 SQ FT] MARSTONS MILLS MA 02648 AYB] EYB] OBS] CONST] 0000 LAND 181500 IMP OTHER -.---LEGAL DESCRIPTION---- TRUE MKT 181500 REA CLASSIFIED #LAND 1 181, 500 ASD LND 181500 ASD IMP ASD OTH ' #PL 810 WAKEBY RD DESCRIPTION TAX YR CURRENT ': EXEMPT TAXABLE #RR 1773 0115 TAX EXEMPT RESIDENT'L 181500 181500 181500 OPEN SPACE COMMERCIAL INDUSTRIAL I EXEMPTIONS SALE] 03/96 PRICE] 40000 ORB] 10105202 AFD] V A LAST ACTIVITY] 06/19/96 PCR] Y P 339 592 381 US Postal Service Receipt for C6rtified Mail No Insurance Coverage Provided. Do not use for International Mail See reverse Sent to Street&Number Post Office,State,&ZIP Code Postage $ Certified Fee Special Delivery Fee Restricted Delivery Fee ul Return Receipt Showing to Whom&Date Delivered Q Return Receipt Showing to Whom, Q Date,&Addressee's Address QTOTAL Postage&Fees is ch Postmark or Date 0 U. U) a Stick postage stamps to article to cover First-Class postage,certified mail fee,and charges for any selected optional services(See front). 1. If you want this receipt postmarked,stick the gummed stub to the right.of the return address leaving the receipt attached, and present the article at a post office service m window or hand it to your rural carrier(no extra charge). m 2. If you do not want this receipt postmarked,stick the gummed stub to the right orthe a�i ' return address of the article,date,detach,and retain the receipt,and mail the article. Uf) 3. If you want a return receipt,write the certified mail number and your name and address rn on a return receipt card,Form 3811,and attach it to the front of the article by means o?the j gumme?ends 8 space permits. Otherwise,affix to back of article. Endorse front of article I RETURN RECEIPT REQUESTED adjacent to the number. 4. If you want delivery restricted to the addressee, or to an authorized agent of the addressee,endorse RESTRICTED DELIVERY on the front of the article. M 5. Enter fees for the services requested in the appropriate spaces on the front of this receipt. If return receipt is requested,check the applicable blocks in item 1 of Form 3811. 0 LL 6. Save this receipt and present 4 if you make an inquiry. a The Town of Barnstable r= • a►cuvsrne�, • gel, 116J� `0�' Department of Health Safety and Environmental Services Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner May 9, 1997 Harriet Hayward,Trustee and William Gifford 800 Wakeby Road Marstons Mills,MA 02648 Re: Use of 810 Wakeby Road,Marstons Mills,MA by Christopher P.Keyes Map/parcel 013/052 Dear Property Owners: You are hereby ordered to CEASE AND DESIST the new commercial use of your property involving the transport of wood waste materials to your site and the processing of it. In a residential district,this sort of use is only allowed after a variance from the Zoning Board of Appeals. If you would like to pursue this course of action,we will be glad to help you. Until then,though,you must discontinue all such activity immediately. Sincerely, Ralph M. Crossen Building Commissioner RMC/km CERTIFIED MAIL P339 592 381 R.R.R. Q970509A • • 1a • •1 • bAv6T656 • '4" TOWN OF BARNSTABLE • • .•1 BUILDING DIVISION 367 MAIN STREET HYANNIS.MA 02601 P 339 592 381 CHRISTOPHER P. KEYES 44 ASA MEIGS ROAD SANDWICH, MA 02563 :r. • � / .� / �- �� L� ��� .� l� .��-�' �. ,� ., f� '. Ij 'c r � � \ . The Town of Barnstable ensrrsras�e. 1 Department of Health Safety and Environmental Services ArEDMA'�A Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner May 9, 1997 Harriet Hayward,Trustee and William Gifford 800 Wakeby Road Marstons Mills,MA 02648 71 Re: Use of 810 Wakeby Road,Marstons Mills,MA by Christopher P.Keyes Map/parcel 013/052 Dear Property Owners: You are hereby ordered to CEASE AND DESIST the new commercial use of your property involving the transport of wood waste materials to your site and the processing of it. In a residential district,this sort of use is only allowed after a variance from the Zoning Board of Appeals. If you would like to pursue this course of action,we will be glad to help you. Until then,though,you must discontinue all such activity immediately. Sincerely, Raiph M.Crossen A-9 Building Commissioner Ka hleen Maloney, Notary Puel c j My commission expires 2i26{2004 RMC/km DELIVERED IN HAND received by date iQ970509A P -339 592 380 US Postal Service Receipt for Certified Mail No Insurance Coverage Provided. Do not use for International Mail See reverse S?q to uj,:q 5 C, Street&Number Post Office,State,&ZIP Code Postage $ Certified Fee _ Special Delivery Fee Restricted Delivery Fee u) Return Receipt Showing to Whom&Date Delivered Q Return Receipt Showing to Whom, Q Date,&Addressee's Address 0 TOTAL Postage&Fees $ co) Postmark or Date LL u) rl Stick postage stamps to article to cover First-Class postage,certified mail fee,and charges for any selected optional services(See front). 1.If you want this receipt postmarked,stick the gummed stub to the right of the return address leaving the receipt attached, and present the article at a post office service m window or hand it to your rural carer(no extra charge). 2. If you do not want this receipt postmarked,stick the gummed stub to the right of thet ®cc return address of the article,date,detach,and retain the receipt,and mail the article._ 3. 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I als Wcish tf rVpeiV e y ■Complete items 3,4a,and 4b. follo iIg services(fob d ■Print your name and address on the reverse of this form so that we can return this extra fee):,, ti card to you. 1 PA A Y � ■Attach this form to the front of the mailpiece,or on the back if space does not 1. ❑=AdOse3see's/Address permit. / d ■Write'Retum Receipt RQquested'on the mailpiece below the article number. 2.TD Restricted Delivery . ■The Return Receipt will show to whom the article was delivered and the date « delivered. Consult postmaster for fee. o ' v 3.Article Addressed to: 4a.Article Number 'a' 38 J E 4b.Service Type 0 1 LA ❑ Registered ertified o U) Zrj 63 ❑ Express Mail ❑ Insured cc etum Receipt for Mer andise ❑ COD a 7.Date of Delivery 2i T'7 �6 p5.Received By: (Print Name) 8.Addressee's Add ess(Only if requested m w and.fee is paid) g 6.Signature: resse ent) a°. X IPS Fo , December 1994 Domestic Return Receipt Firs- ass Mail UNITED STATES POSTAL SERVICE Off, M!I O OS & aid V r' SP a o • Print your name, address, and ZIP, Code in this box t ToM,oi Blmmble Building Obh1on 367 Main SL Hyannis,MA 02601 i ] [R013 052 . ] TAX ACCOUNTING [ ] 18712- [ 36681 RECEIPT NO . PAYMENT TAX YEAR/B .G . AMOUNT DATE TYPE PID 0 [ ] ] 1ST DUE -97011 1 ,330 .611 ^0509971 [1] ] [ ] ] FULL DUE -9701] 2 ,592 .951 -0509971 [F] ] ------CERTIFIED OWNER------ TAX DUE 2 ,524 .68 ] OUTSTANDING 2 ,524 .68 HAYWARD , HARRIET P TR ] TAX CODE 300 ] CITY 031 DISTRICTS CO ------JANUARY 1 OWNER------ ACTION ] MORTGAGE CODE -00001 HAYWARD , HARRIET P TR ] ----CERTIFIED VALUES---- -------CURRENTOWNER------- TAX EXEMPT .00 ] HAYWARD , HARRIET P TR ] TAXABLE .00 ] GIFFORD , WILLIAM ] RESIDENT 'L 181 ,500 .00 ] 800 WAKEBY RD ] TAXABLE 1.81 ,500 .00 ] MARSTONS MILLS MA 026481 OPEN SPACE .00 ] 00001 TAXABLE .00 ] -----LEGAL DESCRIPTION----- COMMERCIAL .00 ] #LAND 1 181 ,5001 TAXABLE .00 ] #PL 810 WAKEBY RD ] INDUSTRIAL .00 ] #RR 1773 0115 ] TAXABLE .00 ] ] ] ] ] LATEST ACTION 1996 XMT [?] o q6 T. � Q �F � . �;, �, ., .. _ a: «�- _ ,� � � t fit'. rs. _ ��_ .. k - .. - � ,. � ., � ,� .. .. ,� 4 ,. �� � .. - � _ .. - :i, a - "� - _ .. �� _ � ., .. �.v _ • . s .. - .. � � ' .. i ... .; .. '. 0.� .. _ _ F .. .. f. � .i � I --�{.�rt _ L PARCEL# : R013 052 . 01 01 0810 WAKEBY ROAD 03 RF ' 300 03CO 10/28/92 1301 00 13AC R013 052. 3668 GIFFORD. MAYNARD 6 WILLIAM MAP- / •LAND 1 197.200 13 1VAC. SIT 1 X 1 =100 100 35999.99 35999.99 1.00 36000 RPL 810 WAKEBY RD 01 01 11 1RESIDUAL 1 X 1 =100 100 8000.00 8000.00 1.00 8000 ORR 1773 0115 COST 197200 14 1ACREAGE 1 X 16.66 =100 71 15800.00 11218.00 12.66 142000 MARKET 117100 14 1ACREAGE 1 X .16.66 =100 U= 50 71 15800.00 5609.00 2.00 11200 INCOME USE. APPRAISED VALUE A 197.200 PARCEL SUMMARY LAND t97200 BLDGS 0-IMPS TOTAL 197200 N CNST PRIOR YEAR VALUE LAND 197200 1370/386 00/00 A BLDGS 6584/007 89/01 TOTAL 197200 LAND LAND-ADJ INCOME USE SP-BLDS FEATURES OLD-ADJS UNITS 197200 0 i i NEIGHBORHOOD 13AC MARSTONS HILLS LAND •TOTAL HARKET PARCEL 197200 197200 AREA 34680 2222 VARIANCE +469 .0 STANDARD 25 Q TOPOGRAPHY 1 LEVEL + TOPOGRAPHY + UTILITIES 7 NONE + UTILITIES + UTILITIES ST FEATURE 1 PAVED + ST FEATURE + ST FEATURE + ST. COND. + TRAFFIC 1 LIGHT DWELL LOC. 4 NEAR WATER + LOCIT:ON + AMENITIES + AMENITIES • NUISANCES A NUISANCES + + • • a I V / Health Complaints 08-May-97 Time: 11:05:00 AM Date: 5/7/97 Complaint Number: 782 Referred To: THOMAS MCKEAN Taken By: THOMAS MCKEAN Complaint Type: Noise/Dust/Stumps Article X Detail: Business Name: Number: 810 Street: Wakeby Road Village: MARSTONS MILLS Assessors Map-Parcel: Complainant's Name: Mrs. Pat Gifford Address: 810 Wakeby Road Telephone Number: Complaint Description: She stated Mr. Keyes brought-in a port-a- poddie at the sand pit/junk yard. They also brought-in loam/stumps/brush at the sand pit. Actions Taken/Results: TM went to the site at 4:00 p.m. on 5/8/97. TM observed a man operating a large front-end loader. I introduced myself then asked him what he is doing. He stated his name was Billy Gifford. He stated he was moving the loam into the road to"dry it out". Later a"tub grinder"will be brought-in to grind up the branches, logs, and stumps, Mr. Gifford explained. TM observed several piles of logs and stumps on the property. A few moments later, a man in a light blue pick-up truck arrived from the junk yard section of the property. Billy Gifford handed the man my business card. The man then asked if he could help me. I informed him who I was and explained I received a complaint regarding stumps and brush. He stated his name was Chris Keyes. He explained to me that the trees are cut down from off-site"jobs", then brought-in to this property. He then showed me a pile of dark loam, the final product. He explained to me that he will hire accompany with machinery at$250 per hour to 1 �q 7 Health Complaints 08-May-97 grind-up the wood material to produce loam. I then asked Mr. Keyes whether a"tub-grinder" will be used. Mr. Keyes answered "no." He then changed the subject and pointed to a "screener" machine. He stated that machine will not be used either. He explained that he will be paying alot of money for this company to come-in, he needs to gather more trees first. He later showed me the port-a-poddie which was brought to the site this past week. I asked him why it was brought-in. He explained that he didn't want the workers to expose themselves and "go" onto the ground. I then asked him about the many tires on the property, "what will you do with the tires" I asked . He answered, "ask Mrs. Gifford she owns this property also." On 5/8/97, TM met briefly with Ralph Crossen, Ruth Weil, and Robert Smith. It was determined that this type of "wood grinding" operation is a new use, and that property is not zoned for this type of use. TM stated he is concerned about noise and dust. Ralph Crossen stated Mr. Keyes will need site plan review approval first. Robert Smith informed Ralph that he has the authority to issue a cease and desist order to Mr. Keyes. Ralp Crossen stated he will issue such an order on the morning of 5/9/97. Investigation Date: 5/8/97 Investigation Time: 4:00:00 PM 2 &kL PROPERTY ADDRESS I I ZONING I DISTRICT CODE. SP-DISTS.I DATE PRINTED I CSTATE LASS I PCS I NBHD KEY NO 0800 WAKEBY : ROAD 03 RF 300 03CO 07/09/95. 1011 00 12BC R012 002 08' LAND/OTHER FEATURES DESCRIPTION ADJUSTMENT FACTORS TUNIT ADJ'D. UNIT y ACRES/UNITS VALUE Description GIFFORDP -PATRICIA 'L 'TR" ' MAP— Land B /Date Size Dimension LOC./YR.SPEC.CLASS ADJ. COND. P PRICE PRICE CD. WDe Ih/Acres #LAN D.. " I - ' 27.900 CARDS IN ACCOUNT L 10 1BLDG.SIT .. 1 . X ' .84 =10C 108 29999.99 32399.99 .86 27900 #BLDG(S)-MCARD-MI A .41,o300 01 OF 01 A #OTHER.: FEATURE I - ..5.800 OST N BATHS 1 .O U X C= 100 3500.0C 3500.00 1 .00 3500 8 1IPL 800.- WAKEBY : RD • MM ARKET ' 6320C D RG1 DETGAR S 24 X 30 1969 D= 73 14.25 8.11 720 5300 F . ERR 1773. 0150 NCOME A SE . PPRAISED VALUE D 75,000 A U ARCEL ' SUMMARY T S ' AND • 27900 A T LDGS IMPS 45800 1300 M OTAL 75000 F E CNST E N DEED REFERENC Type DATE Recorded R I O R` YEAR V A L U A' T Book Page Inst. Mo. Yr. D Sales Prig AND 27900 T S 9325/271t, I08/94 A 1 LDGS 47100 U ` 7996/107: Ib4/92 A 1 ] OTAL 75000 R 7897/213: Ib2/92 A . 1 E i ] BUILDING PERMIT PPEAL 41 973-5 S Number Date Type Amount LAND LAND—ADJ INCOME SE SP—BLDS FEATURES BLD—ADDS UNITS . 27900 `18001 3500 B16140 4/73 Const. Total r B 'It Norm. obsv. ' Class Units Units Base Rate Adj.Rate A u t Age Depr. Cond. CND Loc 4b R.G Rep] Cost New Adl Repl Value Stonee Height Rooms Rma B-tna 1 fie. Padywall Fat. 01C— 000 100 . 100 56.10 56.10 69 69 25 73 100 73 56533 41300 1 .0 6 4 1.0 4.0 Description Rate Square Feet Repl.Cost MKT.INDEX: ' 1.00 IMP. BY/DATE: / I SCALE: 1 /00-90 ELEMENTS CODEJ CONSTRUCTION DETAIL HAS 100 56.10 8.32 46675 S FOP . 35 19.64 324 6363 *------------- 18------ iTYLE 03 ANCH 0.0 T ' ! FOP ! ESTGA-A�JMT- -QO ------------------IF:0 R ! ! ] ! .XTEIT:WAIIS-- -0> WD-FRICME-------D-:O U ! ! EATIAC-TYPE- _a6 I—----------- ---D—A C 18 18 FiTYR:FINISH- -00 ------------------11.0 T ! ! ! INTFR.LAYOUT- -T2 VER;1NO`RMA1:----VA U 26 BASE 26 ! . I WTFR:DUIRTY- -t12 AWE-AN-EXT1WM--VA R i LDVR-ST-WUCT- 700 ------------------U.O A W! ! ! ECO+7R-COVER-- �0 -------- ----------D-�-O L D 324 . 832 ! " *------- *. ----------=------ - Total Areas Aux m Base 1 8------ 0�� T Y r c Q� L/.L/ E BUILDING DIMENSIONS ! tETTR IIAt �0 N.0 T BAS W32 N26 E:32 FOP E18 S18 W18 ! ! i 0UND`ATI-O'N--- 110 -----------------93�.-9 A N18 . . BAS S26 . . ! ' ------------- --- ----------------- -------------3 2------------X -----iQ E I�NH O R D 128 C-MICR S TIrNS-M?1-C ly L LAND ' TOTAL MARKET PARCEL 27900 75000 AREA 4034 VARIANCE +0 +1759 C T-1 N1rnA )r) 7C TOWN OF BARNSTABLE Board of Appeals M. e1liATl"nm .� ,,... Petitioner Appeal No. Z •IB , . • • jori� ��. 1964 FACTS and DECISION Petitioner Sled petition on 7th . A , requesting a variances for premises at , of Mntmi Af��--_..__ v in the village Ilan , adjoining premises of 2M i. llt d! �e;'ndr�o A• .try- 0 JMWe FVftA V lk Amth R. W:LlUejm ��.�. i bbe='t L,� Daber� A, Rya for the purpose of nil1®O for e�I of �et�icloa s.- • a��e yr mad parts • 1 Locus is presently zoned in Poadd ante D Notice of this hearing was given by mail, Postage• g prepaid, to all persons deemed affected and by publishing in Cape Cod Standard Times, a daily newspaper published in Tow n of Barnstable a copy of which is attached to the record of these proceedings filed with Town Clerk. A public hearingb le y the Board of'Appeals of the Town of Barnstable was held at. the Town ffice Building, Hyamis, Mass. at 3215 le . P.M. A '12 24rd I9""p� ®. • � , Pon said. petition tinder zoning by-laws. • .Present. at the hearing were the following members. i P4JWT .J. TrXJI MIAt R• �bLFii 3CP3R Chairman r At the conclusion of the hearing, the Board took said petition under advisement. A view of the locus was had by the Board. on ......... 19......... the Board of Appeals found o Mr Thatcl-Ar Gifford,, the Petitioner, was represented by eo� move A�e� existing caor stated that the Yetitiacser was o®oliing s veTiar ration in which the tamobilo parts salvage business- to a nets foe titioner proposes to locate his businsels i in a Ce 1 p - a The buslMse 14arntons :4ills. The area .12 not zoned so hIch tl-.0 petitioner presently operates in santuit has beaccA An eyesore to the aw:uniry and the petitioner feels that it would be in t1v boat late:oats of al area.-nod to Move the business to .an area well away from the travelled blahWly, t is the opinion or meat' people that the eitua�ion ore it ao�t exists Orestes ®rds�hip not only. 4r the vil'Age of Santuit: but also for Cotuit. Mr. Beeohez ta':ed that the proFoced location In aboat 1000 to®t tron tbn read snd lot'a8s at a hoLim with a screen of trees eurromd2ng the trot par t of atad that. stored vehic3+ea woUM not be visibla trou the road. firs, Booeher 1.er stated that the ph7nlea1 condition of th) prcooeed location was sash hat it could not be used for residential purposes. To deny the owner either and for any purpose Mould result in- a severe hardahiP to h1=9 22 people In poke or were recorded in favor of petitioners. request and 6 poop dos ition. it van the opinion of the Dowd that t M axis tang automobile parts salver- rperation in its precent locationo hae created a serious problm for the entL e teirhborhoodo The location of ealmge yards is a difficult probloas in any area X t:S towns However, it, in important that they be placed In areas x2ft8a< away °ran +,he well-travelled hl&ways and uhare the day to day operations may be Greened from view as much as possible• The location for with the petitioner asks permission to use, seems to tat these• it in important to note that rasps who eta pr�pe*�t�y near the proponod location spoke in favor Of grant�8 Is request as the leaser of two evils• The Board further found that awin6 to onditiona esrecial.ly affecting thin parcel, but not effectin rany is-,e saning district. in.which St is 2mated, tMora anfore ant of her the he By.L&v vau]d involve substantial hardnlAp to the petitioner _ 13sP could be granted without tss133f�/�8 ��d vnanitau s g v tod two Pant � tent .and .purpose of than zoning by-lam. T� Qond3tiroae s That the use of th stitioners• requart a subject to -the ibllowing area A in the new location be restricted entirely to that ereec behind the screen arose. , That Mly we building may be const.-=ted !br use in connection with tg must be located behind thO screen of trees. to trees are to be=crvedt,;0"vat the present; cation at SanUdt be oa®plets o a me a 39 asap t Distribution:- Board of Appeals Town Clerk Town of Barnstable APplican . Persons interested Ruildinsr Inspector . ,a , LOSORDO & DOWNS Attorneys at Law 78 Route 6A Benjamin J. Losordo �- P.O.Box 1637 Sandwich, MA 02563 Gregory M. Downs OCT 2 01997 V Phone (508) 888-6067 Mary M. Gaffney Fax(508) 833-2307 TOWN OF RARN61 Ruth J. Weil Assistant Town Counsel Office of Town Attorney 367 Main Street Hyannis, Ma. 02601-3907 October 16 1997 RE: Gifford Brothers, Inc. Dear Ms. Weil: I apologize for the delay in responding to your letter of September 30, 1997. As you may be aware the ownership of the subject property has been the subject of litigation both with the Town and with Patricia Gifford. We previously had agreed with Town Counsel to,file for the permit without relinquishing our rights under the litigation. Included in those rights was both the nonconforming nature of the operation and the fact no one in Town Hall knew of any one else having to apply for the permit. We did apply under a reservation of rights in 1996 and then heard nothing until.the recent correspondence from Mr. Crossen. Within the litigation were affidavits from the existing owners and some past contractors who had used the yard for years dating back to the 1950's..Lwould be willing to help the town in any way you deem appropriate, but am unaware what law or ordinance can do more than ensure the health and safety issues previously addressed on several visits to the site by Town Officials. Please contact me with the application information necessary and I will advise my client to comply to the greatest extent possible while reserving our rights outlined previously. Thank you for your patience in this matter. I understand the pressures which conflict among the property owners may cause. Sincerely, Gre o� gd/grnd :Downs I r - _ TOWN OF BARNSTABLE sAnnSTABI.e. OFFICE OF TOWN ATTORNEY MASS. 039. peg� 367 MAIN STREET'°lEoaw+" HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D. SMITH, Town Attorney TEL. (508)790-6280 RUTH J. WEIL, Assistant Town Attorney NIGHT LINE-AFTER 4:30 P.M. CLAIRE R. GRIFFEN, Legal Assistant September 30, 1997 (508)790.6283 EILEEN S. MOLLICA, Legal Clerk FAX #(508) 775-3344 Gregory M. Downs, Esq. Losordo & Downs 78 Route 6A P.O. Box 1637 Sandwich, MA 02563 RE: Gifford Brothers, Inc. and Christopher Keyes Assessor's Map 13, Parcel 52 . Dear Mr. Downs: Your letter to the Building Commissioner dated September 22, 1997 (which was received by the Building Commissioner on September 29, 1997) has been forwarded to our office for review. I gather from the letter that you are raising questions about the procedures being followed by the Town Manager in his implementation of Chapter III, Article XII of the General Ordinances of the Town of Barnstable which requires all sand and gravel pits operating within the Town of Barnstable to obtain a sand and gravel permit. The Town Manager, in his desire to fairly and effectively implement the permitting requirements imposed under the above-cited general ordinance, has adopted what he hopes is a "user friendly" process. As indicated in the letter addressed to your client, a copy of which was sent to you, the first step involves an informal meeting with appropriate town officials to review and discuss the application process and to answer any questions that the operator might have regarding the hearing procedures. The information sought in the application process is designed to provide the Site Plan Review Committee with the Gregory M. Downs, Esq. Losordo & Downs Gifford Brothers, Inc. and Christopher Keyes Assessor's Map 13, Parcel 52 September 30, 1997 Page 2 technical information it needs to prepare a recommendation to the Town Manager. The Site Plan Review process will provide all property-owners with an opportunity for a dialogue with and input from the applicable town officials who will be ultimately sharing their expertise with the Town Manager at the public hearing. As you acknowledged in your letter, all existing sand and gravel pit operators have been asked to comply with the same application process. I am advised by the Town Manager's Office that your client is the only operator who has failed to contact the office for an informal meeting with town officials to begin said application process. You should be aware that there is no °grandfathering" from the application of a general ordinance and a new general ordinance could be adopted today to regulate existing business activities. That has not been done in the instant case. Rather, there is an existing ordinance which requires the town manager to hold a public hearing and to evaluate certain information before the issuance of a permit with whatever conditions he determines are appropriate. As noted above, the procedure outlined in the letter to your client was designed to provide an, avenue for the sand and gravel operators to work with appropriate town officials to share and evaluate applicable information in preparation for the hearing process. However, if it is your position that your client does not have to provide the town with the information it has requested prior to the required public hearing, I will advise the Town Manager to schedule a public hearing and then seek whatever information he deems necessary during the public hearing process. Please advise me forthwith if the latter is the course that your client wants to pursue. [95-0288&97-0122/down sltr] Gregory M. Downs, Esq. Losordo & Downs Gifford Brothers, Inc. and Christopher Keyes Assessor's Map 13, Parcel 52 September 30, 1997 Page 3 On a separately-raised zoning issue, it is my understanding that the Building Commissioner has alerted both you and your client to a request he has received for zoning enforcement from abutters to the sand and gravel pit who claim that the sand and gravel pit is in violation of zoning and is not a legal pre- existing non-conforming use. Alternatively, the allegation is made that even if there was some legal pre-existing non-conforming use, that the current use differs in nature and kind to such a.degree that the current use is illegal. The Building Commissioner is in the process of investigating the complaint and must respond no later than October 14". Obviously, the Building Commissioner's investigation would be greatly helped by specific and verifiable information from your client, as to when the sand and gravel use began, the nature of the use when begun (including the activities taking place on the premises), the intensity of the use when begun and the nature and extent of the use as it continued from its inception to the present. Your prompt attention to both these matters is appreciated. ;4y, RJW:cg Wei Assistant Town Attorney cc: Town Manager �c: Assistant Town Manager c: Building Commissioner [95-0288&97-0122/downsltr] i 'ME A . 'L The Town of Barnstable aatuvsTnst.E, 9$A ' � Department of Health Safety and Environmental Services rEo r�'t" Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 50f,-790-6230 Building Commissioner September 30, 1997 Gregory M.Downs P O Box 1637 Sandwich,MA 02563 Re: 810 Wakeby Road,Marstons Mills,MA Map/parcel 013/052 Dear Attorney Downs: Your letter(of September 22)addressed to me seems to be answering a letter from the Town Manager's office as far as a sand and gravel permit and the new procedures are concerned. I will forward your letter to the Town Manager for you. I sent you a separate letter just last week concerning a zoning complaint at this site. By now,you should have received it. Please recognize that my letter addresses zoning and requires a different type of response from you. Specifically,I asked you to supply proof of all preexisting non-conformities on site. I will expect a written reply from you soon. Sincerely, y Ralph M.Crossen Building Commissioner RMC/km LETTERS Q970930A i LOSORDO & DOWNS Attorneys at Law 78 Route 6A P.O.Box 1637 Benjamin J. Losordo Sandwich, MA 02563 Gregory M. Downs Phone(508) 888-6067 Mary M. Gaffney Fax(508) 833-2307 Mr. Ralph Crossen Building Inspector Town of Barnstable Town Hall 367 Main Street Hyannis, Ma. 02601 September 22, 1997 RE: Gifford Brothers Sand and Gravel Dear Mr. Crossen: I am in receipt of an information package regarding an application for permit relative to all gravel and sand pits operating within the Town of Barnstable. The package was addressed to Gifford Brothers Inc. and Christopher Keyes. As you are aware the subject of a permit was raised by prior litigation in the Barnstable Superior Court at which time it was agreed, under a reservation of rights as a prior nonconforming use, Gifford Brothers would apply for a permit under the duly authorized regulations of the Town then in force. This was done by timely filing of the appropriate documents with the Town Manager. The new application procedure seems to be designed to force ongoing prior nonconforming businesses to comply with new local and regional policies. I would be happy to discuss this matter with you and./or Town Counsel at any time. If there are particular issues which need to be addressed at the site please contact me with your concerns. Sincerely, eM.Downs gd/gmd cc: Client I - Y ARMO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. ATTORNEYS AT LAW MATTACHEESE PROFESSIONAL BUILDING 25 MID-TECH DRIVE,SUITE C WEST YARMOUTH,MASSACHUSETTS 02673 EDWARD J.SWEENEY,JR. TELEPHONE(508) 7753433 RICHARD P.MORSE,JR. MICDON AEL M. OBERTSTUSS FAX 508 790-4778 RICHARD A.DALTON DONNA M.ROBERTSON ( ) RUTH A.McLAUGHLIN MATTHEW J.DUPUY CHARLES J.ARDITO, III CHARLES M.SABATT CHARLES J.ARDITO,P.C. PLEASE REFER TO FILE NUMBER G3726X September 26, 1997 Ruth Wiel, Esq. Assistant Town Attorney 367 Main Street Hyannis, MA 02601 RE: GIFFORD BROTHERS SAND & GRAVEL, INC. v. PATRICIA L. GIFFORDj et al . DOCKET NO. 95-576 Dear Attorney Wiel: s With regard to the above-entitled matter, I enclose herewith a copy of Mr. Carl Lampi's deposition transcript. Thank you for your attention in this matter. Very truly yours, CHARLES M. -SABATT CMS:erd enclosure TOWN OF BARNS'T'ABLE Board of APpeiLs Petitioner Appeal No. 1 •I0 Anri? 1. 1964 FACTS and DECISION Petitioner filed petition on A7!h 1 request"'; a varianc ' for premises at ofs�� s ; 2lar Wit, in the village adjoining premises of�� s• �?t d! I}� aapy Gm Tarim 0 Je Q prEd 44 Notts R. AlUaw � for the purpose of : Ifidme for myvium Of �l�icloa a.- et=mo Of used pam Locus is presently zoned in ROsldieaft Notice of this hearing was given by mail, postage g prepaid, to all persons deemed affected and by publishing in Cape Cod Standard Times, a daily newspaper published in Town of Barnstable a � copy of which is attached to the record of these proceedings filed with Town Clerk. It A public 'hearing by the Board of'Appeals of the Town of Barnstable was held at 16 ffice BuildinZ gyannis, Nam., at 3115 the Town �e . P.M. Amtj 21r d .0; o. 1 , .on said, petition under zoning.by-laws. Present. at the hearing were the following members. P44EIT J• MR)M AT p Chairman R?LAM .. MIL At the conclusion of the hearing, the Board took said petition under advisement. A view of the locus was had by the Board. ......................................... 19......... the Board of Appeals found o Mr Thatcl-or Gifford,# the Petitioners was represented b 7eose h Beeccb existing char stated that the Petitioner eras o®elting a Varlar to tamobilo parts salvage business- to a rAW location: The location in which tbo titiorier proposes to locate his business is 0 p a,�buc�se Marstons �Iillse The area .is not zoned ao 3 ich the petitioner presently operates in santuit has beaa®o *An eyesore t0 the . :unite and the petitioner feels that it would be In tb© boat into:Gets Of al rce:nod to Bove the business to .= area well array from the travelled hifiway. In the opinion of amny people that the situajPion Gas it now, eziste creates dahip not only.Par the vilisge of Sentuit s but also for Cotulto Mr. Deeohez &tad that the proposed location is about 1000 feet from the road end ie eat a hollM With a screen of trees surs�amdi b ng the front part of the lot. Be ated thw: atoned vehicles would not be vi9db10 frvn the roade We Boocher hor stated that the phye Seal condition of Us proposed location was anah t it Could not be used for residential purposese To deny the ouner G of th for any purpoee would result in- a severs hardship to him• 22 people either is Oka or were reoarded in favor of petitioners.request and 6 people . os itione It wag, the opinion of the Dowd that the existing autc=dbilo parts salve£ oration in its present locations has Created a serious problem for the entL^e eighborhoode The location of salvage yards is a diff icult problem in any Mrsa t::o town. Severs it, is important that they be placed in areas saftm away the wall-travelled hiGhways and where the day to day- operations may be creamed Ps*ors vise as much as possible. The location for wish the petitioner .asks permission to uses seams to flt theses, ZL ie important to note that rsons who o . pro !-tpe f ncer the prop000d location spoke in favor of grant�6 is request an the lesser oP two evils• The Board further found that owing to onditiona espacia,1g affecting this parcels but not affectin rally txs toning district. in. which it is Located,#, a literal �dor�� of the � By-Law would involve substantial hardship tsubetantstitioner 3all�_derrogating trcta th lisp could be granted without nnl�� ��d ��ely voted to gfaat tent and .�voae Of the Coning by oonditioas� Thnt the use of th etitionere. recAmet, s subject to -the tblltminS Is. .d in the new location be restricted entirely to that area behind the screen roes. 2s That only one building may be const:-,cted fbr use in connection with tie OnIVA 4. yard and such bul3dtg must be located behind the ecreon of treese to trees are to be ,removed. 1k oUt the present location at Santuit be oa®pl,e is feared. of all. matcirial with n a a.sanable timsj Distribution:-.; Board of Appeals Town Clerk Town of Barnstable Applicant. Persons interested Building Inspector COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS, SUPERIOR COURT NO. 95-922 .: GIFFORD BROTHERS SAND AND ) GRAVEL, INC. ) PLAINTIFF ) VS ) STIPULATION RALPH CROSSEN, Building ) Commissioner for the Town of , Barnstable, and WARREN J. RUTHERFORD, Town Manager for ) the Town of Barnstable ) DEFENDANTS ) Now come the parties in the above-captioned matter and acting by and through their respective counsel 'of record, hereby agree as follows: 1. The Plaintiffs agree to forthwith file an application ifor a license for removal of soil, sand and gravel from their premises located at 810 Wakeby Road, Marstons Mills, Barnstable, Barnstable County, Massachusetts, (the "Premises") pursuant to provisions of Article XIII of the General Ordinances of the Town of Barnstable. 2 . During the period of processing the application referred to in Paragraph 1. the Defendants agree not to commence enforcement proceedings against the Plaintiffs for the operation of the Plaintiffst business at the Premises, including without limitation the providing, by the Plaintiff, of materials to 44 Gravel and Sand, under the provisions of said Article XIII of the General Ordinances of the Town of Barnstable. 3 . The Plaintiffs in filing the application for a license pursuant to Paragraph 1 do not waive any rights they have asserted ZO,; '3Jt7c! a8O3 T NOSNIIS Z9980EV 09 6Z:50 066T/bZ/T0 n , i or may assert with respect to the validity or application of said Article XIII to the Plaintiffs current operation at the Premises. 4. In the event that a license is not granted or is granted and subsequently appealed by a third-party, the Defendants agree. not to commence enforcement proceedings for failure to comply with said Article XIII, without ten (10) days written notice to the Plaintiffs Counsel of Record of the Defendants intention to do so, in order to permit time for: the Plaintiffs to seek further injunctive relief. 5. The parties agree that the Restraining Order issued by the Court on July 2, 1996 shall be permitted to expire by its own term5 on Friday, July 12 , 1996 at 2:00 p.m. 6. The parties agree to be bound by this Stipulation which shall have the force of a court order and shall be filed with the papers in this (Barnstable Superior Court NO. 95-922) . TOWN OF BARNSTABLE PLAINTIFFS By their Attorney By their Attorney M chae D. Ford, Esqu re � 72 Main Street *gm w s, Esqu reDowns P. 0: Box 665 1637 W. Harwich, MA. 02671 , MA. 02563 (508) 430-1900 (508) 888-6067 BBOI` 174440 BBO 1542214 July 12, 1996 ;EOM :'3�Jtid C160A -8. NOSNIlS GZ:GQ _tb66T.1.Z b,, �LO The Town of Barnstable 1 CFTHE l Department of Health Safety and Environmental Services Building Division inxxs'r"M ' ' 367 Main Street,Hyannis MA 02601. y erase. g i __. Off ArEa�' Ralph Crossen Fax: Building Commissioner CEASE AND DESIST October 22, 1997 Harriet Hayward,Trustee and William Gifford 800 Wakeby Road Marstons Mills,MA 02648 Re: 810 Wakeby Road,Marstons Mills,MA Map/parcel 013/052 Dear Property owners: I am in receipt of the attached request for zoning enforcement. Upon investigation,I have determined that the use of your property for a gravel pit, processing of fill,the screening of fill,depositing of fill,brush and clippings or any other similar use is in violation of Barnstable zoning section 3-1.4. These uses must immediately CEASE AND DESIST. Our records-reflect that,from a zoning standpoint,you have a special permit for a salvage yard. This use is in addition to the residential use that has always been in effect there. Any other uses than these two(i.e.salvage and residential)have no preexisting non-conforming status and must end. In response to the above referenced request,I also reviewed an affidavit previously submitted by William Gifford. I do not find it presents specific evidence based upon personal knowledge that establishes a gravel pit operation of the nature currently being conducted that began before zoning. You have the right to appeal this decision. If you so choose,we will be more than happy to assist you. If we do not hear from you,-and these unlawful uses continue,we will be forced to seek civil or criminal action against you. Sincerely, Ralph M. Crossen Building Commissioner RMC/km cc: Attorney J.Douglas Murphy Attorney Gregory M.Downs i Attorney Charles Sabatt Robert Smith,Town Attorney Christopher Keyes enclosure i DELIVERED IN HAND Received by Date -..�:.r..-r-•�-..oe-ra9i9r-.wee+.'+'w �PP.r_�• G. _ �.' -Y _ __ __,.. _--_ - __ __...-._ "_____ : The Town of Barnstable 9 9.� Department of Health Safety and Environmental Services j Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230. Building Commissioner May 9, 1997 • Harriet Hayward,Trustee and William Gifford 800 Wakeby Road Marstons Mills,MA 02648 Re: Use of 810 Wakeby Road,Marstons Mills,MA by Christopher P.Keyes Map/parcel 013/052 Dear Property Owners: - You are hereby ordered to CEASE AND DESIST the new commercial use of your property involving the transport of wood waste materials to your site and the processing of it. In a residential district,this sort of use is only allowed after a variance from the Zoning Board of Appeals. If you would like to pursue this course of action,we will be glad to help you. Until then,though,you must discontinue all such activity immediately. Sincerely, Ralph M. Crossen Building Commissioner Ka leen Maloney, Notary Public My commission expires 2/26/2004 RMC/krn DELIVERED IN HAND - -"received by ` `" date - - - - P 339 592 405 US Postal Service Receipt for Certified Mail No Insurance Coverage Provided. Do not use for International Mail See reverse Sent to- rk S Street&Number . o 6 � Post Office,State,&ZIP Code Postage $ O u'Y Certified Fee Special Delivery Fee Restricted Delivery Fee Return Receipt Showing to Whom&Date Delivered a Return Receipt Showing to Whom, Q Date,&Addressee's Address 0 TOTAL Postage&Fees Is co) Postmark or Date 0 u_ a Stick postage stamps to article to cover First-Class postage,certified mall fee,and charges for any selected optional services(See 6ont). 1.If you want this receipt postmarked,stick the gummed stub to the right of the return address leaving the receipt attached, and present the article at a post office service m window or hand it to your rural carrier(no extra charge). 2. If you do not want this receipt postmarked,stick the gummed stub to the right of the m return address of the article,date,detach,and retain the receipt,and mail the article. u� 3. If you want a return receipt,write the certified mail number and your name and address" on a return receipt card,Forth 3811,and attach it to the front of the article by means of the gummed ends if space permits. Otherwise,affix to back of article. Endorse front of article RETURN RECEIPT REQUESTED adjacent to the number. 4. If you want delivery restricted to the addressee, or to an authorized agent of the addressee,endorse RESTRICTED DELIVERY on the front of the article. +'J Go c7 5. Enter fees for the services requested in the appropriate spaces on the front of this receipt. If return receipt is requested,check the applicable blocks in item 1 of Form 3811. li 6. Save this receipt and present it it you make an inquiry. fi SHE t r The gown of Barnstable �� DARN�fABLb, � 9�AMAS& �0�' Department of Health Safety and Environmental Services rEDMA'�A Building Division 367 Main Street,Hyannis MA 02601 4� Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner September 23, 1997 Harriet Hayward,Trustee and William Gifford 800 Wakeby Road Marstons Mills,MA 02648 Re: 810 Wakeby Road,Marstons Mills,MA Map/parcel 013/052 Dear Property Owner: For zoning purposes,this office has begun an investigation into the uses of the above referenced property. This sort of investigation is common after receiving a zoning complaint under the State Zoning Act 40a. Such a complaint was received on September 15, 1997 alleging that only a salvage business has proper town approvals and permits for operation at this site. You are being requested to supply this office with documentation and proof of all uses on this site that you believe to be preexisting non-conforming in nature. Your submission should be specific as to dates and backup. We would appreciate this material within 14 days so that we can make a fair decision. Failure to supply this information will result in our decision being made with the information we have obtained only. Sincerely, Ralph M.Crossen Building Commissioner { RMC/km cc: Robert Smith,Town Attorney Attorney Gregory M. Downs Christopher Keyes Attorney Charles Sabatt Attorney J.Douglas Murphy CERTIFIED MAIL P 339 592 405 R.R.R. LETTERS Q970923A THE RELIEF TOWN OF BARNSTABLE BEEN DETERMINED BCE ZONING • '. Zoning Board of Appeals ENFORCEMENT OFFICER THE Application for other Powers BE APPROPRIATE RELIEF GIVENTHESE CIRCUMSTANCES, Date.'Received For office use only: Town clerk office Appeal # Hearing Date { Decision Due The-undersigned hereby applies to the. zoning Board of Appeals for the reasons indicated: Phone 888-6067 Applicant Name: Gifford Brothers Sand & Gravel Applicant. Address: c/o Gregory M. Downs,_L'sS1. 'PO Box 1617, Sanflj,rirh�MA 02563 Property Location: 810 WakebV Road Marstons Mills This is !a' request for: � ] Enforcement Action (•] Appeal of Administrative officials Decision � ] Repetitive Petitions �. ] Appeal from the zoning Administrator H other General Powers - Please specify: Please Provide the Following Information (as applicable) : Property owner: , Gifford Brothers Sand & Gravel Patricia , Phone (508) 888-6067 Gifford, aynard Gifford, Beth Linell Address of, owner: If applicant differs from owner, state nature of .interest: Gifford Brothers is a tenant in common with t h-orhPr ro ert owner ' Assessor's Map/Parcel Number zoning District Aa Groundwater Overlay District �.; Which,section(s) of the zoning ordinance and/or. of MGL chapter 40A are you appealing to the zoning Board of Appeals? Chapter 40A, Section 8 • Existing. Level of Development of the Property - Number of Buildings: # Present, Use(s) : . sand and gravel n,+ , Gross Floor Area: N/A sq. ft. The :order. relates to the operation of a gravelt pi on the property. ! 1 . 0 f i i�;it•'1 t1 '"' t•le , �V .'�I I, Anplicat ion for Other Powers ` `. Nature &' 'Description of Request: Appeal from Order to Ce a-P' an operation of gravel pit- based on prior non-conformin o er .. r Attached separate sheet if needed. ' Is the property located in an Historic District? . i [) If yea OKH Uae Only: Yes No [$ i Plan Review Number Date Approved Is the building a designated Historic Landmark? If es Yes No [� Y Historic Preservation De artment Use only: Date Approved Has a building permit been applied for? Has the Building Inspector refused a permit?, Yes [] No [J� Yee [ ] No [� Has the property been before site Plan Review? 1 Yee [) No Q For Building Department use only Not Required - Single Family Site Plan Review Number [) Date Approved Signature: The following information must be submitted with the application at the ti.me :of. filing, failure to supply this may result in a denial of your request:. Three (3) copies of the completed application form, each with original signatures. Three (3) copies of all attachments as may be required for standing before the Board and for clear understanding of . 9 your appeal. The applicant may submit any additional 'Supporting documents to assist the Board in making its determination. e signature: . Date: Appl ant o Agent,s signature: Agents Address: �� �O,ti', 3 7 r/L��L�rit�y ` Phone. �� ..60r=-'r Fax NO. I III 1{1' r 111 I I I :I •y t I 'i .ri '.I' 1 I .I_ ;i;•I�-'. t •mwa, Tenx.�k+.!:n;r . ^ta: "Notice For Public Hearing The followirig are . the most recent names, mailing addresses and corresponding Assessor's Map.:&Parcel Numbers of the abutting property -owners, :,the. owners'.of land directly opposite on any public or. private street, or -wa and :all abutters .-to the abutters within three hundred (300 ) feet of the `property .lines of -the-subject property. Assessor's • . : Map .& Ptrcel'. Number Owner,'s 'Name Address see- attached- Certified List of Abutters' Addresses--for the Town of Sandwich# * N O T I C E * . Upon . submission of application, it is required that all facts and documentation necessary to- support the relief being sought is be presented 'by the applicant. a s. The failure 'of which may result .in ,the •denial of the application at the scheduled hearing. r i L•. r ' } I�.. 1. , ��. •, ; i 1 "TOWN' ;OF 'SANDWICH '. ?Co.oANC�. �" o +` use l`� 'o , TOWN,HALL ANNEX THE OLDEST.TOWN ON CAPE COO ~ x 145 MAIN STREET . • y�� • 3 � E a - SANDWICH,MASSACHUSETTS 02563 (. 9,8�i J 4 TELEPHONE(508)888-0157 p 4 C H U 8i FAX(50B)888.2497 OFFICE OF.THE'BOARD OF ASSESSORS November •10., 19.97 Towci. 'of '.4rnstable, .Zoning Application RE: . .Gifford:Bros• Sand &,Gravel,,.Inc. This letter, is'to certify that .the .mailing. addresses for the attached 1i'st of abutters Fare correct according to Assessors' -records for FY 1997. BOARD OF ASSESSORS ;. 1 DONALD N:L10NTO r LAWRENCE B.M GTON ". WMLIAM.- CATERING .• I �•� l I. � .1 I I, I I IIF IS � 1tlIIII ,� S-"I; lil 14 1, } IIS a , .., Iijd7x 1 . t �d�U �'97 PHI 9:1 r •� � 1, :z •-'i r.: < TOWN ;'OF. -SANDW I CH 1 4 LIST- OF 'ABUTTERS REQUEST •FOR CERTIFICATION `• NOTE •:PLEASE ALLOW TEN DAYS: FOR 'A LIST TO •BE CERTIFIED .I Y;ASSESSO_RS, f PER. M.G:.L., CH :bb;' :S'. 10 - i Persoh,'requesting certification �rQ `ions__—___ - . 3 t .. t,. i U t-cc---- Telephone ` -. � ^.n SignaturNX e ' Name of App scant ► 5_— r - --- cld r.es ebb � M--q r - -'- Street L'a cat idn of Property ' `Dm _ _ Map Number _ _ ___,; Parcel Number _ ; Number ;of abutters on. list --____-- _-- . --- - x The. agg l icatign'' is fo_r Board. of Appeals: (.Variance, Special Permit, - Comprehensive Permit) t ` Planning ''Board (Special.!Permit) -_-- ---- :'Planining Brd ..(Definitive 'PTan) _-_-_-_ Selectmen : (Road 'takings) _;.,.Selectmen .:(Uti`lity/pole .location) .Seiectinen (. Gaso hirie/Oi L.;storage tank) Selectmen (Liquor,. License') ' Coriservat.ion' Commission (Notice 'of Intent) Historic District . (Certificate. of Appropriateness)., Hoard of Health `(Site Anssi'gnment) ( - Other (`specify, 2 1Y_1 i Pre�lCafio� For Use'-'-by-.Assessors i — - --sors ' The attached`: 1 ist, has' more than, -three, errors. Please'. submit 'a cor-rected:"list. The !attached''.l ist`As.- certified •to' be 'a correct ' listing of �. abutters for the descr`.. ed'.:app ieation,,".based on' the most recent tax . 1 i Car tifi ;Signature t - -- - - ------------------------- t ;4 Title. - - -- - - _ Date _1� ,f�1 � _---------------- ' ,Feev = - --- 'Date Paid•• ,:� 1 ti 1 t��t t j,.l 1 c r I y I( 1 I - •. , � 1 t,l 1, (!gill+. �1; I'�a .', . v.�•� ,1, r.t 1 1 3 1 I � 1 I : � ' + r! cll �. '{ i 4. Lj �l�'. It•rl l -t �' � ' ' � ' � ' � .. . t � ' t TOWN.:OF SANDWICH r t THE OLDEST TOWN'ON"CAPE COD • ;, P.O.BOX 660 , s SANDWICH,MASSACHUSETTS 02563 } s •TELEPHONE80-6157 LIST OF ABUTTERS . SHEET.1 of 2.' ' ALL ABUTTERS LISTS MUST BE TYPED FOR APPROVAL RE, :MAP'- -'.: PARCEL: :.:. Wakeby;R. ad�(Asa Meiggs Road), Marstons Mills :fig: Gifford Brothers Sand & Gravel, Inc. d. ABUTTERS:' : . MAP: 03;°PARCEI::.46 NAME: O'Keefe; John J. et ux Elizabeth M. MAILING ADDRESS:RD#1, Box 331A Lagrargeville, NY 12540 MAF: 03 PARCEL: 45' --"Town--of Mashpee . 16 Great Neck'Road North ... ,Mashpee, MA 02649 ' M.Ab 03.PARCEL:.44 `' Boucher, David Rei ux Deborah M. 47 Asa Meiggs Sandwich, MA 02563` MAP:'04.PARCEL: 49.:. : '.:Taupier, Joanne 51 Asa".Meiggs Road Sandwich,MA 02563 MAP.! 04.PARCEL; 50 'Blakeman, Donald B. PO Box 597;.1 Santuif P. Mashpipe, MA 02649 m + 1 MAP! 04 PARCEL:,51 Blakeman,*bonald B: PO Box 597 If Santuit P. . f Mashpee, MA'02649"': ' t :•)'�'r I fl.�l 4 I inf!`:�I1'Filr Ill.L.I I '? I - t �,IL'yl f!li f;,• �,.'•I 71.II rI•I Irl i 1 Y. { II r vI �` tlj" d II) ( ° .. I I ri 1rlt-�• � ".t'{ 1 II. � 1. � .,�111 �,`II C i �,I,ft t + .(I-'}]•� I .1-i "t:I`y ii"i� .n��t! ! 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I:�- III'j. ,i. � aI�.Si'r•I! ,'I! it, iiLf,a".i t :,,} p Pt.i;('t�i�lt .y,�1. f. irlSr 1.lq {f 71�"f`I@°''l1, 'I,�"''I •'11�1: t t �.1. ,.,�tY�,��'lil�I r♦' I Q.flif�y, ¢',+rl�,�, ,i.+.l {Id1,�Y�;.!'� +! gl+�'•)�;1� 11. 9tt 4�a1. �t, i..6r:•1•+tl ••'I '•�'.'•i I'1 I ',I L, I'19 fln t ��.r�,+r:I�y :, �+i'!'r^.li.! �Its .1'y�i 1 GI � 1'i41�1�:1�4::�I I.����ri�' L,r li to�!h`4 1 ,�� 1 'f�� II r n L: r• i = TQWN,.OF, SANDWICH` � � � � � � � .E ' ` `TIiEOLD�STTOWNON'GAPB.COI). � } '+F ' r.} r P.O.BOX 660`: SANDWICH,,MASSACHUSETTS 02563 } TfLflPNONB 888-0I51 S 1 I T F ABUTTERS )MEET 2.OF 2, ALL ABUTTERS LISTS MUST BE TYPED FOR APPROVAL PARCEL: . Wakeby Road (Asa Meiggs Road), Marstons Mills OWNER: Gifford Brothers Sand & Gravel, Inc. ;".ABUTTERS, MAP• 04 PMIZ CEL 52 own of Sandwich .,� Main Street ,. . Sand*kh, MA 02563' MAP 04.:P EL 47 Haapaoja;Edwin A: and Betty.Lou P 0 BOX.,69'.:' • ' . ` SPENC'ERPORT; :�,NY., 114559 MAP. 04 PARCEL. 46 Kinney, Craig W. '. . 8 Evsuh'Drive Sandwich, MA 02563 I A ` P 1 p ! i LOSORDO & :DOWNS Attorneys at Law 78 Route 6A P,O.Box 1637 Benjamin J.Losordo Sandwich,MA 02563 Gregory M.Downs Phone (508) 888-6067 Mary M. Gaffney f Fax(508) 833-2307 October 24, 1997 Ralph M. Crossen Building Commissioner Town of Barnstable 367 Main Street. Hyannis*, MA 02601 RE:'810 Wakeby Road Dear Mr. Crossen: Please note the recent cease and desist order dated October 22, 1997 is addressed to individuals which to my knowledge are not record owners of the subject property. Perhaps Patricia Gifford , Maynard or Beth LinnelI have transferred interest since the Superior Court litigation was commenced. I assume you also mean to include Gifford Brothers Sand and Gravel Inc. who is also a record owner of the parcel. Because the cease and desist order directly affects Gifford,Brothers an appeal of.the order will be filed.on it's behalf. ,I apologize for not providing information earlier. We have in fact been in the process of the.taking,of several.depositions relative to the ownership-and use of the property. The Town is also-involved in.fitigation'in Barnsiable=Superior Court.docket 95-922 which involved the prior nonconforming use and.'the filing for a,permit, Pursuant to an agreement between the parties the Town continued toy allow the ongoing operation and Gifford Brothers made timely application for a permit�under-a reservation of rights in early 1996. . : `Evidence.presented in the'letter dated September 1.1,, 19.97 from Attorney Murphy actually supports the:prior use of the property as a gravel pit although the language he selects fr�m the proceedings*in 1964 would seein to indicate otherwise,.In particular.I would point to tht language at page'2Iline 3 of the 1964 decision;which`states"(t)he'location in which the petitioner proposes. - to locate his business is:ii a gravel 1pit near Wakeby:Road in Marstons Mills." Discussion by Attorney Murphy of the large area and the screening ignores the fact the Board already knew and had viewed the operation.of the pit: The'.'gully.and trees referred to in the decision still appear on the portion'of the property on which'the out building and the salvage yard exist. Lorenzo"Gifford. : . and his-son-,William E. Gifford'in,'fact'.operated the-pit.in the early:1950's. This fact is further. - n..n.... r...,..•r..xt: • :.. '.... ♦-...........:.:....t,..r-..wJi..•.•vse1•��x..w! r.fir: ••Y�..rrra..ri..rt.•..ttF..4x...tfMPrf�r•.+�P•.w: •. i ::I..t.._ "t�. .....-..e ..:. supported by.the affidavit and deposition testimony of Patricia Gifford (William's wife) and operators and users of the yard over the years. The operation of the pit included screening, trucking and storage of materials. The Town actually,tested the materials'and agreed to,take the sand and gravel from the site for use at the Town Landfill. The previous Building Commissioner should also be able to verify to you the continued use of the property over,the years. When you and I discussed the operation of the business,this last Spring you were concerned with the"transport of wood waste" but made no indication in your cease and desist . order dated May 9, 1997 of any other,portion of the operation. It appears Mr. and Mrs. McDonough purchased property abuttingAn,existing gravel pit and salvage yard. No complaint was made during all the years Mr. Robert Bortolotti was processing, storing, loading and transporting materials from the site nor during the prior periods when Lorenzo and William were operating the site. `Again.I apologize for not responding to your requests and those of Town Counsel earlier. Please let me know how you wish to proceed. As the appeal will be taken and the Superior Court action remains outstanding the business will continue to operate.Certainly any alleged harm to the abutters is outweighed by the survival of the business on the property which supports several people and has-been recognized by the Town over the years. Please note that while the contempt proceeding against the Town was withdrawn on the agreement to apply for the permit under a ' reservation of rights; the Order of the Court dated July 2, '1996 restraining the Town from interfering with the operation of the business remains in effect (see attached Order): Sincerely,. Gre o M. Downs gd/gmd cc: Town Counsel Attorney Murphy Attorney Sabatt Client t> IRDO & DOWNS LOSO Attorneys• at Law. 78 Route 6A P.O.Box 1637 Benjamin I Losordo Sandwich, MA 02563 Gregory M. Downs Phone (508) 888-6067 Mary M. Gaffney Fax (508) 833-2307 Board of Appeals o Town of Barnstable 367.Main Street Hyannis, Ma.'02601 October 24, 1997 RE: Appeal of Cease and Desist Order .810 'Wakeby Road, Marstons Mills Certified Return Receipt Dear Membe'rs of the Board: Pursuant to MGL. Chapter 40A section 8 Gifford Brothers Inc., as a record owner of the above identified property and as a party"aggrieved" by-the issuance of the Order to Cease and Desist:on October 22, 1997 hereby appeals said Order. Please note as the Order was given to a Harriet Haywood as an alleged Trustee of the property and the action of the Town is subject to the Restrictive Order of the Barnstable Superior Court preventing interference from the ongoing operation, this appeal is made under a reservation of any rights to pursue further action in the appropriate jurisdiction if necessary. Gifford Brothers Inc. does, however, understand the . necessity of attempting to cooperate with the Town and with the abutters to the property to address any particular problems and questions ` The basis of the appeal is the nonconforming nature of the operation of the gravel pit as 4 ' outlined in the attached letter to the Building Commissioner. Please advise this office of any additional information requested. Sincerely, ILA Gr M. Downs gd/gmd ` .enclosure cc: Ralph Crossen Town Counsel . Attorney Murphy Attorney Sabatt I L0S0R_DO & DOWNS Attorneys at Law 78 Route 6A P.O.Box 1637 i : Benjamin I Losordo Sandwich, MA'02563 I Gregory M.Downs Phone (508) 888=6067 Mary M: Gaffney Fax(508) 833-2307 October 27, 1997 r Charles M. Sabatt, Esq. Ardito, Sweeney, Stusse, Robertson& Dupuy Mattacheese.Professional Building ' 25 Mid-Tech Drive, Suite C West Yarmouth, MA 02673 RE: Gifford Brothers vs. Patricia Gifford, et al Dear Chuck, Enclosed please find my recent correspondence with the Town of Barnstable. It would appear to be in your clients' best interest to support the continued use of the property whether or not Gifford Brothers is the operator. In regards to the litigation please forward to me the ledger book which Patricia Gifford promised to supply. I look forward to having the opportunity to speak with you at Maynard's deposition, if not before. Sincerely, M. Downs GMD/rsl i enclosure j LosoRDO & DOWNS Attorneys at Law 78 Route 6A . ' P.O.Box 1637 r Benjamin I Losordo Sandwich, MA 02563 Gregory M. Downs Phone (508) 888-6067 Mary M. Gamey Fax (508) 833-2307 October 27, 1997 I Douglas Murphy, Esq. Murphy&Murphy 243 South Street Locked Drawer M Hyannis, MA 02601 RE: McDonough/8 10 Wakeby Road - Dear Attorney Murphy, Enclosed please find correspondence with the Town of Barnstable regarding the ongoing operation of the gravel pit at the above location. Please let me know if you and your clients would like to discuss the matter further to attempt to achieve a mutual agreement. Sincerely, re. Downs :. GMD/rsl ` enclosure 'a<< The 'Town of Barnstable ; :t•`i. SHE r Department of Health Safety and Environmental Services Building Division BARN617ABLE, 367 Main Street,Hyannis MA 02601 _. n1Aes. I �• �A tbgq a`�� • Off. rEn � Ralph Crossen Fax: JUTS=/9U-b'Zsu Building Commissioner CEASE AND DESIST October 22, 1997 Harriet Hayward,Trustee and William Gifford 800 Wakeby Road Marstons Mills,MA 02648 Re: 810 Wakeby Road, Marstons Mills,MA Map/parcel 013/052 Dear Property owners: I am in receipt of the attached request for zoning enforcement. Upon investigation,I have determined that the use of your property for a gravel pit, processing of fill,the screening of fill,depositing of fill,brush and clippings or any other similar use is in violation of Barnstable zoning section 3-1.4. These uses must immediately CEASE AND DESIST. Our iecords•reflect that, from a zoning standpoint,you have a special permit for a salvage yard. This use is in addition to the residential use that has always been in effect there. An other uses than these two i.e.salvage Y Y ( ge and residential)have no preexisting non-conforming status and must end. In response to the above referenced request,I also reviewed an affidavit previously submitted by William Gifford. I do not find it presents specific evidence based upon personal knowledge that establishes a gravel pit operation of the nature currently being conducted that began before zoning. You have the right to appeal this decision. If you so choose,we will be more than happy to assist you. If we do not hear from you,'and these unlawful uses continue,we.will be forced to seek civil or criminal action against you. . Sincerely, Ralph M. Crossen Building Commissioner t� RMC/km { cc: Attorney J. Douglas Murphy Attorney Gregory M. Downs Attorney Charles Sabatt Robert Smith,Town Attorney Christopher Keyes enclosure DELIVERED IN HAND i (' Received by Date (TO PLAINTIFF'S A'l-fORNfE:Y: PLEASE CIRCLE 'TYPE OF ACTION INVOLVED: TORT MOTOR VEHICLE TORT'.CONTRACT EQUITABLE RELIEF OTHER COMMONWEALTH OF MASSACHusETTS BARNSTABLE, ss. �.a SUPERIOR COURT NO. 95-922 I UE COPY i GIFFORD BROTHERS SAND AND GRAVEL, �I��. ATTEST C vs. DEPUTY SHERIFF BUILDING COMMISSIONER FOR THE TOWN OF BARNSTABLE et al IIESTRAINING ORDER To the above-named defendant , You are hereby suunmoncd and required to serve upo ..Gregory M. Downs, Esq. ...................................................................... Plaintiff's artornc whose address is Losordo g Downs P 0. Box 1 Sandwich .....................................637.........z........................... Massachusetts 02563, ..............................: an answer to the complaint which is herewith served upon you, within 20 days 1 niter service of this sunuiions upon you, exelusivu of the day of service. If you fail to do so, judg- ment by default will be taken against you for the relief demanded in the complaint. You are also re- quired to file your answer to the cornplaint in the office of the °Clerk of this Court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in 1 1 any other fiction. WE ALSO NOTIFY YOU that application has been made in said action, as.appears in the com- plaint, for a preliminary injunction and that n hearing upon such application will be held at the Courthouse at .........Barnstable ....................... in e County of Barnstable ........................... Frida twelfth in tlae first session without jury of our said Court on ....................Y...................the............... ' day of ......July......................:A. D. 1996 at .......... OO................... o'clock h1X}111C., at which you j may appear and show cause why such application should not be grunted. In the meantime, until such hearing, WE COMMAND YOU, BUILDING COMMISSIONER FOR THE TOWN OF BARNSTABLE AND TOWN- MANAGER- FOR THE TOWN OF BARNSTABLE and your agents, attorneys, and counsellors, and each and every one of them to desist and refrain from interfering with the operation of plaintiff, Gifford Brothers Sand and Gravel, Inc. !s,. business, located at 44 Asa Me:iggs. Road, Sandwich, Barnstable County, Massachusetts. IT IS FURTHER ORDERED that said defendants and your agents, attorneys, and counsellors, and each and and every one of them to desist and refrain from interfering with the removal of materials for use by 44 Gravel and Sand, Inc. , pursuant to public contract with the Town of Barnstable i ROBERT A. MULLIGAN .............................Esc uire,at Barnstable, { rile ..second dray of ....:.....�1Y..................................................... in tlae . year of our Lord one thousand nine hundred and...ninet.......................-si..x. at 2:20...... ................Pm. • w . ' ... ..� /. ...... Clerk NOTE: When more than one defendant is involved, nc names of all defendants sl. appear in the caption. If a separate surcunons is used for each cjcfendant, each should be addrbssed to the particular defendant. 'NOTICE TO DEFENDANT You need not appear personally in Court to answer the complaint but if you claim to have a defense, either you or your attorney must serve.a copy of your written answer within 20 days as specified herein and also file the original in the Clerk's office. ..:,....: .. dFTMe r� . The Town of ]Barnstable .Aarer,�str. t .. MAC Department of Health Safety and Environmental Services Building Division 367 Main Street, Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner May 9, 1997 Harriet Hayward,Trustee and William Gifford 800 Wakeby Road. Marstons Mills, MA 02648 Re: Use of 810 Wakeby Road, Marstons Mills, MA by Christopher P. Keyes Map/parcel 013/052 Dear Property Owners: You are hereby ordered to CEASE AND DESIST the new commercial use of your property involving the transport of wood waste materials to your site and the processing of it. In a residential district, this sort of use is only allowed after a variance from the Zoning Board of Appeals. If you would like to pursue this course of action, we will be glad to help you. Until then,though, you must discontinue all such activity immediately. Sincerely, Ralph M. Crossen Building Commissioner Ka hleen Maloney, Not Public g My commission expires 2/28/2004 RMC/km DELIVERED IN HAND ! received by . date t ` Q970509A.: • --.--- — � ._' nn,.. . ,R ti.n nor ... . ., ... .. ._ ...�... .. r- n�<•.. . . .,,..... ..,.. I TOWN OF BAR.NSTABLE ' � • I Board of Appeals I . Petitioner 1 ; Appeal No. __ ���_ • ' ,. FACTS and DFCISIO.W i i Petitioner _ to TR1'-Mlmn nrrr.I ) ` "`-~--- ----------_ filed petition on A rll_?_t h 1 i requesting a variaucd for premises at . ofr�ta }s411 _ �� the village ---__, adjoining premises p lyaa�,_ � aont L4� Jae. P»d to � Muth R� 'dlily3.� Ida � "$ � >ZSt4;!To. ter A. for the purpose of tudn" DVOI d po n for e>a.Yyap of �^al ic�ots �,� ----------._._.__� CtOTU(O of Uned Mrta Locus is presently, zoned in _ Psldarce D� Notice of this hearing was given by mail, postage prepaid,..to all persons deemed allected and y publishing in Cape.'Cod Standard Times, a daily newspaper published in Town of Barnstable a opy. of which is attached to the record of these roceeding: It . P y filed with town Clcrlc. .A. Public.-hearing b �® g y the Board of Appeals of the Town of Barnstable was held at the Town fCice Building, Hyannis, Mass., at 3115 6 P.M. �flr91 23rd 9614 �0. 1 pon said petition under zoning by-laws. Present at the hearing were the following members: ° i RC3dL'F .J. �71�f t vA4' ?1» 7i;L. s371uirS ; Chairman -- `----- I At the conclusion of the hearing, the Board took said petition under I advisement. A view of the locus was had by the Board. j On ...................................................................................... 19........, the Board of �. Appeals found I Thatcher G.iMird, the petitioner, cease represonte►d by Joaenh Daecher, Esq. Mr jocyer stated that the Petitioner -wan soolsing a lvarinrce to move an existing itoQmobilo parts salvage business to a new location. Tho location in which tho i :)titionor proposes to locate his buino na in 4.n a gravel it noun, Wakaby► Road :1 I4arstons Mills. Tbs area to now zoned an e_R nco D--3 tLrcaa Tho bunincss � .rich tte petitioner presently aperatca in Santuit line beacma an eyesore to the xwunity and the petitioner reels that it would be in t1m boat Inge:oats of al -3nae:nod to move the lu sinean to an area troll away from the travellod highway. t is the opinion of many people that the situa-Ion man it now. exists creates i nrdship not only Vr the village of Santult, but also for Cotuit. Mr. Beechaz i. caged that the proposed location—is about lone feet from the goad and in locat n a Hollow with a screen of trees ourramdIng the front part of tho lot. He , tated tha': stored vehicles would not b© vi Bible from tho road. TV& Beecher I arther stated that the phynidal condition of tbD proposed location was evah hat it could not be used for residential purposes. To deny the otnier uoo of tY: end for any purpose would result in-a nev=o hardship to hl-ma: 12 people either I; poko or ware. recorded in flavor of patitionore request and 6 poopla spoke In pnoa ition. It wan the opinion of the hoard that: the exin t'�ng automobillo parts salvar :peration in itn prevent location, hasp eructed a serious problcm for the ant ire .eighborhood. The location aC pplvagae yardo in a difficult problom in any area f tlm town. However, it•• ie IMortant that they be placed in areas =12ro ¢ away 'race the well-travelled highwayn and e*ierere the day to day operntion.8 may be tieroonod from- vsew art smash are poaeiblan Tho location for vich the petitioner ieoka permission to use, sexema to fit those. It In important to note that >oroona who ot•a1 proparty n`-ar the proponod location apoko In favor of grrmting :his request an the lancer of two evil.n. The Board further found that owing to :ondlt-ions 6"cial.ly affocting thins parr co1F but not affecting ; ;eneral.ly hg zoning district. in which it in located, alit®rat onfOrcment of ;he Il9-barer would involm vubstuntial hardalt.ip to the petitioner and further thsi C •elief could be granted without nullifying ear' substantially derrogating Pram th Intent .rstnd purpose of the soiling by-law. The Board unanimously votod to grant adtitioners. requert , subject to the fo.Uming conditions: U Th#Lt the use of th rd in tho now location be restricted ontirely to trnt area behind the screen trooe. 2 That only me building may be constructed for une in connection with � tt;o salvage yard and Such build fig must be located ated behind fixe tsc'i�eon of treeee to treca . are to be ,removed. ,L,�'"l�t the present- location at Suntuit be complete ;,. cleared of all material with n a le c.eanable tim,s? Distribution:— Board of Appeals Town Clerk Town of Barnstable Applicant Persons interested Building Inspector / ry / (� PAP \ Q a � 39 Noc K%.leO%}.O !L ISt M \ \ I26 I q lb LO \ 4\ O 4:19 �. L \ `\\ 5� no Z 4 I I .o ic V � \O J E9 © I.IzAJC— -1r,q WET: 9-1 w-1,5 AG I UILC v-,O 3 2 3-1 © \. U /-DOAC 3-3 4.wnC m 4 2 .96 AC n, 3-4 \ \ A LooAC 3_� ! ° Iio �7S iSO ISO ,13 \ ! 0 q7 N _ 0 770.5 41 Sao' 0 4 1 S° .� i.IBnG O 3 13-I i ro�j. AG V I.00AC- 0 1.02 qC- u p O ;V ry v y E:F - - - - _ r`—rrcea- . •!.•r•rr^Jo.r-ti. ":.Y:.`F•.'-•J%t:.-.. -•)��.e-.:�i:•... --4-y..:..`�•^.._::�_ _ : 5'' .:M_. .-fo•Qnr.•.•r.•.p.•-'•.,. ,.'r. '+..Tt -i.: +,t •}.•34r.+ :-..r.-. +..•-+—Xs-�:.�• •�'t"•`--- I :%. .^�..'%:'s'r.'.'n ,..;:CSSk:); `ltY<.'rty...a..+..2.:� :::it•)+::t:'1:2•A_ .:.,.:.,.�.:.Jr...:a., COMMONWEAL• ' E"�MASS `H.`.0 ACAUS ...... • 1ti ,BARNSTABLE S :.: -COURT S. SUPER . . .,..: . .... . ........._.._ _.._._... ,..... .tea - ----- .. . . IOR COURT ��NO��� - g �576 =.=A.GIFFORD .BROTHERS SAND AND ) ::......:., • : ,: GRAVEL, :--INC•, ..:.. . ::..: :,,. _ . . . .:. is Plaintiff PATRICIA._L.:=GIFFORD, MAYNARD -- .._:T.'::GIFFORD and BORTOLOTTI . . CONSTRUCTION :: D efendants . AFFIDAVIT OF DEFENDANT PATRICTA L • GIFFORD 1, 'Patricia L. Gifford, being first duly sworn on oath 1. .I, Patricia L. Gifford, am a Defendant in the above- ..captioned matter and I am an individual residing at- 800 Wakeby Road, ' Marstons Mills, Massachusetts; owner -of the 12-14 acre :parcel of la lo nd cated on ;. .Wakeby .Road,. Marstons Mills Massachusetts - which 'is the subject of the above-referenced suit; ; . ; 3 . ' I acquired an interest in the property through the estate of: my husband, William C. Gifford,. who- died in 1991; 4 . My husband, William C. Gifford, acquired his interest in the property from his father, Lor enzo o T. Giff ord, Jr. deed transferringan interest ' The n erer�t i :rl n said property from Lorenzo T. 'Gifford to .my husband is 'recorded with - the Barnstable County Registry of ..Deeds in Book '1350, Page 14.. Said deed is dated �i October 24 , 196�6 and grants an interest in the property.. to my _.h ,. . - , _..__.__ g. _ y •___•_-._____•__ husband alon with_hig brother.,Ma _nard_T. .Gifford, as tenants .._ _ in common. A copy of the Deed ie attached hereto aH Exhibit A• 5 .. ..'_I .have reviewed the deed dated .June' 27, 1967 recorded' -with ". _Barnstable..County..Registry of Deeds :in Book 1370,•-Page 3$6 which purportedly transfers a 1/3 anterest in 'ahe ]2-14 ears .� parcel._1 cated on Wakeby Road, Mare ons. Mills,".;Mae,eactyusetts from my ;husbaiidr' William C, ..Gifford brather�-in-law, i Maynard T. `Gifford, :to _Priscilla :E...:Gifford. :._ Said deed also contains:,myeignature. A-copy of the Deed i s attached hereta:. _... "as Exhibit.. B ,,, -—II----- —-----——-------—-- ---————————————————————————-————' —-— -=------- ----------- ,-- --------- 08/14/1995 ,..15:45 5087756029 5087756029 �"-- _, PAGE......03 �l r - '-.:r.ts: ;t; .fit:• - rrsrrr•s+t"'Fi�i?y t, �.},'tQr"T3i,, A : t. .....s"a's:.y.•Y_�(.....'_" _;' /.L.1:;t�►CAM:. ..{ �1 ` 1' _Ja .'•ii. :�:un'.:r• .+:.:'.. ' ^.c- .. . ,� ~• .":✓:G -•, ,tom %u:u°f__"-• �:•!r'_'.L^' -..a'.,:'•S. .y�. .•.•.fn, l1r �f:raa.+'..J..,--i}.: ' Y -..:v<3 -•.a�`.tnl.M t9•'FEa 14 ---..—�-,�,,:•s�.:7'....a�aia_7�:x::`.�"""y'`'ir�iea'x+`:iae'.�=r=••..:.^.. ..... .:. - ��:sxa: -' - ..t_:,,,:_:,_ _.. _.....--.r.._�_:.' +.-..�arwrw- �T`-'^' • rvr n:.+wi_r....).v.L.el.w�.:v:vrwv^.oW,p,YYygt:ttlViffRwR.��.... '� ••..-•._._�_-.�_._._. r+..��•.•�w�rloT -r---..i��'_Y/iv �TVM+��...�wrv. .r1»MNawMw.arvv'!y:'v^.wn.o'4'Tw......-.in1r+_— .. ; l '^_! vim :.. 6 - -- . .....__ . .. . aye no _ ... - .. .... .. ..... . recollection ;oP ever signing the deed recorded in`Book. 13 7 0, ".Page. 3 8 6 l::'_,::_� _.::::.. ,- • := I have reviewed 'the deed'` r�aorded with the Barnstable County Registr y of Deeds in Book 1.370,• Page 386 and I do not ' ,_...... believe that the._signature -on..-said ..deed ..is my' signature; :,.,-,..... �: g ::... . . ` 8_,.._ Prior y..to the death of m h existence of the-heed. usband .in 19911..:I. discussed the in Book .1370;-.Page 386..with my .husband . t " -MY husband stated"to''me.._thaty he did' not believe the signature on. _:..said' ..deed wass straighten thi `.his: :aignature. Nand that . we needed - matter. e 'o t aacs ::. :y to ret -'My husband, :zthe-Defendant k:Maynard G' ained a .ia lawyer.-.to . T. Gifford, and I, wy to Took into this matter but nothing was done by the lawyer; ----- —`-1 -- Although-my and-I always intended to investigate this deed and clarify ownership .to this 'land we failed *to do so .after the lawyer -we -,retained .took no action. :__:reasons '..we "-failed "'to follow : u on .this matterne was of the that Priscilla E. Gif ford --•a .. p . r purported .owner of the interfered..with -our'=operation:=of the.:. y property., ,never: .. .. ... .. ,.. :, propert , 11 .. : Since the- T950 �s myT-cieceas�ed.rhusband and his family have operated* a sand pit and junkyard on this property; l2. When my husband was alive he. use to load trucks 'up with sand`and gravel with his front-end loader; ' 13 . Shortly after the death of my husband in 1991 our front- . . end loader ceased working; ;14 Since that time, we have continued to sell sand with the assistance of the Defendant Bortolotti Construction, Inc:; ----15.--We -have made 'an arrangement ,vilth•the befendant Bortolotti Construction,. Inc. whereby if any, contacts us to purchase sand or gravel from our pit we refer the Potential. o Purchase to the Defendant. Bortolotti Construction " Inc. The Defendant Bortolotti Construction, _.Inc _loads' . the sand from-.our--pit __:..:___..:... . .nq eta`own'-6quipmerit-and manpower; and then delivers -- to the:. customers :.location. :'::;;. :. The ......-,.Def :`.Construction, .Inc.: pays us 20 .00. ......-,Defendant`-`. Bortolotti p y ." ' $- Per.truck.lo' d for the sand :...,it..:;:'removes . from our property.. f P P y..-: : The . fee to Bortolotti R : _._Construction, Inc, averages approximately $1.20 per yard;16 : The Defendant Bortolotti Construction, Inc. also leases an area of land on the subject premises fr" 'us.Bortolotti Construction Inc. The Defendant sum of $406.0o a month rent. In exchange for the rentthe DefendantBortolotti Construction, Inc. . is allowed to leave vehicles on the leased portion of the property and - can store materials such as ! stones,. ,to oil, h . rps and ips; :,r - . -••,•ye '-•.M .w•}.'!wr.'vnv+t'.tRYrxtHdtlW/d'�4SY4iilaFYM1lPI� YYr?5b'Y�W:'--!+r.Y:�+t'?'�tR'r: .....--- _-_sc_��_c�r�• ,::'.:�.::.w.� .:... ..�_. ::..•4;~�•. - :)i::ti.7q.._:z-`c��_ccr9i.! 'i=,�. '-'-:- - a _ __.rA. � _.. .::::. —:iski�cr:i�miri-,+,-t',+,':�v:+vl��.......C`I!:R..^••�-�_TmcL��:'7>s'_. .1.. ._ _ _.... .. .�.-r i0n7;ocfo a ma:3or*ao_ntradLtdt w �- n. . caa yp �uroha�ie sand fro a . t•� ��r�Tl t e--� --=� :..�......,....h�...,. �.-----_ fits lowriiIoader� ts=out' when:-=th:tsi-ties-=bfa+eri-;crdne t fie �and�� --t - -'-- - ---negotiated-g price--efmilar to"" he.. ees:.we-charges - • Hartolotti. ConetructionF Inc.,' -- - -- - _have"•�.: 18.�After..the _death:of:..my:._husbaiid.An .1991, my son 'to"' take"-over the operation and management of the 13!"- pit. " During this period of -time 'my` son mismanaged the booker ;'khd failed .to _._.._ .._s._. .pay-bills..rAs...a..result:-of-hie-'-mismanagement_of ' dye"book"estate':taxes fell °'in'arrears; have since :;_.control of the buses __. , . s and -have*.' entered into an agreement:with :the'Town of BarnIft'---able .payment of the .back' al estate taxes. ., Current le for the re :,date to n z.the. pa t"=scheduled ::worked out.::wi �� are n o f . ..... . - .. .._. .. �en ... ... .'� : 'the � . ...Barnstable; 20:' Recently, the property .was, inspected by': .td Bar { agent for the Town .of -Barnstable Board of Healer �', an Mr. Barry informed me that he received. an anonymous pho� all - complaint stating that we .were storing and 4141Spoeing of hazardous waste and ''materiaJs: -on the property; 21.. ,Mr.. Barry visited the, location approxiumateZ~F- lour to five j '.times to view the propertyi , No' problems with hak:k-ardous waste .: ... or .:.meter als were °discovered =and "the property► 'Was given .a I clean. .bill of .:-health." "�=A."."copy of the Bo&r,a of Health Inspection Report is attached; hersto as Exhibit 22 . - .Since June '27, 1967,` :.:;the date of th* deed which purportedly ..:transferr.ed ' 'an ' :interest in the r�roperty..; -to : Priscilla - E. :: Gifford, Priscilla E. Gifford has never participated in the operation: of the business In any "manner; 23 . Priscilla E. Gifford has 'never contributed .to, any of the : expenses of .operating the :businese nor has she 1kV*r requested an accounting of the busineaa., operation; 24 . Priscilla E . _Gifford^has never inquired about an - aoritracts -with any customers 'of the sandpit oper,%t j - located ' on the subject property; 25 .. Upon information. And .belief the principal officer and shareholder -of the P1"ntif-Gifford Brothers•Sand and Gravel; Inc,:....is Christopher:Ke es : . .. . ._ . 26.E .Christopher.Keyes -is area "a' tenant renting :.. ...sub ect p Y ro ert - -- - i _.._ . . .... . pay tento27 -.::.:.Mr- Keyes _has f for,. hi property since 1991; s u se � of 'the :' . . _ �T------------- --;---"-------- ------ -=-------------------------------= . 08/14/1995 15:45. 5087756029 5037 56029 - 'PAG : .:., �. �.:..: ..; s 95;: - `rcucsr• -- ��' rsl��-,'_3-r�-•«:Y3Fs •-�- -=�*�J•r<".��x�c:s•-.—.fr _ _ '� .�'r'_`erY-_•'�-rn: +�i^•-:::-- �-- Z8 :Mrs ICe „_..:, :�:•.r, r. .:m; Yes•�has;'constantly rotezfered"witTzour'.operati�tof' .4.:''.•_ =the':•.sandpit^:and has;::tiarasaeci'=m seT_f in �b=other.. _ = Y_._... .�: Y. =in-taw:.Maynard�----- . f --- T,.-'_Gifford Tandou customers.•>". : ;.action _to_ evict ..,. Mr. Keyes .'.from ...our ... ro ert for failure tc P. . P . Y ::..._.... .. - . ..pay..rent:•__When. we brou ht that action' 9 -he .subsequently `entered :into 'an °agreement with :.Priscilla E. :. . Gifford and obtained a power='bf .attorney from her granting him the right to act on her behalf;. .• 0.-When Mr:-- Kayes informed-ins about`:-the .;Purchase .and -Sale 1 Agreement -and Tower--'of Attorney ..between his "'corporation -and Priscil--la7E.rGif ford;-:.I=wasp shocked to"learn that-the attorney :.._.. repres.enting.Mr :Keyes vas .the same-":attorney we had previously f - retained to .investigate . the '.-circumstances :-surrounding the execution of the deed which purportedly .creates 'An ownership 1 '-.interest:yin- 'the property ' in"Priscilla­E :Gi for 31 : When our lawyer informed Mr:. Keyes lawyer of our conflict of interest claim, '--the lawyer withdrew from the case; 32 .—If_the--Plaintiff -is -granted -the--relief—it—'seeks-`-tha--:.__... Defendants will be irreparably ..harmed • because it would • prohibit us from operating our eand and gravel business which is our main source of income. ,,,.If we .are. unable to operate the business' during the .pendency"'.'ot .this ' lawsuit we would most :-` likely lose .the .property..._to the Town..'of.. Barnstable' in. a :real•" estate 'tax•'foreclosure. Additionally, both Maynard T. 'Gifford and. 'I would not -be able to pay our bills relating to. the '. operation of. the' ' business .and our home; i 33. Based '.upon the statements made ..to me by my now-deceased 1 j. husband, -arid my review of the deed.which purportedly transfers an interest in the property to Priscilla E. Gifford, I believe that we will establish at trial that the signatures on the deed are not legitimate and that Priscilla E. Gifford has no ownership interest in the property. '. :.. :. . Signed under the pains and penalties of perjury this 14th day of August, 1995 . Patricia L. 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I � tieing unmarried, for consideration paid $40,000.00 ('Forty 'Thousand` Dollars) , j grunt to Gifford Brothers Sand & i Gravel, Inc. , 44 Asa Meiggs Road, Sandwich, Barnstable, ss. , MA 02563 �1K with gtiftclafln cobenantl thelandi Barnstable (Newtown) , Barnstable County, MA' bounded and described as folrows: (Desuiptiun and enutmbrances,if any) A certain piece of land and woodland in Newtown, Barnstable, Massachusetts, formerly the homestead of Joseph Landers, reference to deed recorded on December 18,P� y_ ,in Barnstable County Registry of Deeds, Book 66, Pages 107 and 108. Containing twelve to fouteen acres. See deed to Maynard T. Gifford and William C. Gifford, recorded in Book 1350, Page 14. l t j SARNSUBLE COUPITY DEEPS.KEG 01. REGISTRY_OF (E }iAfi?dSTABLE COUNTY EXCI <L�r j 03/1.8/96 . I I 03/18/ 111t1 �V el� 91.20 1 91?0 TAx� '13b.ao• pSH 91.20 CASH 13G.:Fto POO WAke w 9153A000 i.`,:y6 ✓�o f lr /l�r�(� 0069 EXCISE TAX 1101 81i11 15:46 C0UNTY-E,'iCISE TAX :�litnc'8 } `' 5th y March 96. i hand and seal this day of 19 PrisciTlra,�E:.�Ci ord ! . State of. Colorado. • �}thQ�(91KII16(Il1tKC4�J)bCf�IIRl )t�i1fCC9i( 1 Ci t� R rnttrity of Denver )6S. Marrh 6 19 qr, ! Then personally appeared the above named 'Priscilla E. Gifford i i and acknowledged the foregoing instrument to be her free act and deed, before me, i No�'ublic Justice of the 1'euce My commission expires %/— 43 1977 FORM 106 LAWYERS STATIONERY CO.,INC. BOSTON,MA BARNS TABLE REGISTRY OF DEEDS I , W i l l i a til P. 'Gifford, BP►08878-0174 95-10-11 11:08 4051133 Of 800 Wakeby Road, Margi ons Mills, Barnstable . Counly,hlassachusell$, �RY1�f1ft16KJf1Q&1(for clplslderallunpaltl,andlufull conslderatlouol44000,00**(Four 1'liousand Dollars( 1;rmll lu ;;t I Gifford Brothers Sand anInc':, d Gravel, Inc' of 44 Asa Meiggs Rogd,* Sandwich, Barnstable, ss. , MassachuseL•L-s 02563 ul 1 Willi nttlfrlplill[putlt Itn ! all of my right-, title and interest to: Lhe land In Barnstable (Newtown(, Barnstable County, Massachusetts, boui►ded ! arid described as follows: A certain piece of land and woodland in Newtown, Barnstable, Massachusetts, formerly the homestead of Joseph Landers, reference to deed recorded on , December 10, 1857 in Barnstable County ltegistr I I. 107 and 100. y,of Deeds,,. Book 66 [? f Containing twelve to fourteen acres, • ages i Excepting from tire above premises. any interest in the houselot at 000 .Wakeby Road, Marstons Mills. I' • lt� • '• 1 . it BAFNS'[TARLE.000j4t YRE ( 'DEEDSREGNS W`°=��-:.!!�n(�in(�'(������' ioiiii9s�•�'iiiiiiii . :i 000 N '{ j M1 s' TAX r 9.12 !\ TAX 13.ri8 1 TOTAL' CH"' 13.68 EXCISE W; t D010` 1102 11ili ;11,.07. c COUNTY EXCISE TAX lffllhltee my hand Arid$Cal Ihl$ 95 day of William P. Gif d 011e lDnnnnt►ntuen1111 df Mileenr1111nells i Barnstable County 9.7 19 %J� I'hcnpersunailyappcared tire abi►Ye.nanled William P. Gifford :Ind acknuwlcdl;cd lbc foregoing I\Is it'll iC►►1.,11► be his hee act rid deed before tile ri'r-1 r a� c^' •:.: it�` "1.= Nolaty Public—Jr sll'e of the peace c uA@c.1 20, ,"j Alycunmdq''11onea dru ' CC(ir1MISS101J EXPIRES MAR.28,1997. (�1g611�k�dQl ��,�i1►I'enams—'1'cnanls its(:ommon.) ' ' t 1 l '411 j1 BARNSTABLE REGISTRY OF DEEDS 1 1IA1 I1 R lo. sl( (As AAII!NUI'.1a nY CIIAP.1 NR-197 W I9G9 licrrp steed lit esanu d/,n tcenul mall eumaln for hat r rndntscd upua 11 die lull Dame,residnlce and Dist uflice address of thr 8ra1114•c cl I •., and a n•chal ul Ihr auunu,l nl Ibe lull annldctadnn 111err'nf In dullals of the nalure of lire udret canslderadom thcratit,if nnl dclh cu•A tut a sprt Illr uuurclary sum '1'be lull unulJcratlnn shall mean 1hr III121prlre for 1hr eunrel-ance"'11hnnt dc'ducam,too,any Ilcus n1 cnrambnnces ! ` assunu d by 1111-Flamer or renlalnlnq Ihcteon.All such endursemenls and tcehds shall he reandrd as pill oil the deed,fallme III euntpt it hit Ihls arednu shall nut allot the callJlly of pnydeed.Na rrglster(,f deeds shall arrrnt a drr,l h,r rrrnrell•�r•„nlr••t.t-1., n... ) BP,.09878-0173 95-10-11 11,08 4051132 l MASSACHUSETTS QUITCLAIM DEED SHORT FORM IINDIVIDUALI 881 1 I, Patricia Brown, aka Patty Gifford, daughter of Patricia L. Gifford and the late William C. Gifford of PO Box 271 Harmon y ME 09942 � i of;• 0-4 County,Massachusetts, i )Q3dWrYf26}("M for consideration paid,and in full consideration of*$4 000.00**(Four Thousand Dollars) grant lo. Gifford Brothers Sand and Gravel, Inc., of 44 Asa Meiggs Road,* Sandwich, Barnstable, ss. , Massachusetts 02563 of with quitduttn couenants all of my right, title and interest to: the'lland in Barnstable (Newtown) , Barnstable County, Massachusetts, bounded I and described as follows: i l ' A certain piece of land and woodland in Newtown, Barnstable, Massachusetts, formerly the homestead of Joseph Landers, reference to deed recorded on December 18, 1857 in Barnstable County Registry of Deeds, Book 66, Pages i 107 and 108. Containing twelve to fourteen acres. Excepting from the above premises any. interest in the houselot at 800 i Wakeby Road, Marstons Mills. ` BARNSTABLE COUNTY j� I� REGISTRY OF ilbAll�p COUNTY I • � .. .• 1U/11/95 . 10/1f/95 1111tJ11 . BOB N i TAX 9.12 TAX : 13.G8 b . TOTAL 9A2 CHCK CHECtC 13.6E 9.12 54BI1A000 05 0009 EXCISE TAX 1102 lffiil 11:06 _ COUNTY EXCISE TAX i 1Mittteu,� my hand and seal this �I dayof July ' 19 95 Pam tea-) P--S1\r0U-P&) Patricia Brown (gilt(gammoawealtil of Allssadlnuett>3 State of Maine n K County (�Gtty 16r t9��� Then personally appeared the above named Patricia Brown a and acknowledged the foregoing Instrument to be her ree act and deed before me j I Notary 11ublle—Justicc of the `� •�)(� j?)••!'AIyl commission expires f ('InQividti�lt�q nt R`enei�y`T Tfnants In Common.) ' Er CIIAPTER 189 SC6 A�A111M i?'�yDEh 11Y CIIAPTL111 497 of 1969 I livery deed presented for record shall Cilll l'J II1,O[II�Ve cn (Ne tl poll It the full naOle,residence and post office address of the grantee _ aOd a recital Of Isle amount of Itle full constdcralloil lilt fCQE ID(IOII7rs Or Ille nature Of Ille 011ler consideration therefor,If not IICIIVere(I fora 1 Spl:t:If7C IIlOOelary Sllnl:'I be full consideration Shall Illy In Ille FOCBI pril'e for the CO11VCyaIICC Without deduction for any liens Or encumbrances assulned by the grantee or remaining Merlon.All such endorsements and recitals shall be recorded as part of the deed.Pallure to comply ' With(Ills section shall not affect the Validity of any deed.No register of(leeks shall accept a dccd for recording unless It is In co111plianCe With '"•i^_',;_ _I-- -the requirements of this section. . I' BARNSTABLE REGISTRY OF DEEDS V BP:i i9397-0177 95-10-24 2:56 if LIS.9348 I, SHARI LEE, GIF,FORD JOHNSON, of PO Box. 164, Harmony, Mainel,O4942 )VXeYIkXiNI>4Ktf1Vll4 for conslderallnu pall,and in full consldetaflmt of*$4 000,00**(Four Thousand Dollars I;ranllu Gifford Brothers Sand" and Gravel, Inc., of 44 Asa Meiggs Road,* Sandwich, Barnstable, as. , Massachusetts 02563 t,t Willi qultclulut caucituata all of my right, title and interest to: the land in Barnstable (Newtown), Barnstable County, Massachusetts, bounded and described as follows: A certain piece of land and woodland fit Newtown, Barnstable, Massachusetts, fotulelly the homestead of Joseph Landers, reference to deed recorded on December 18, 1057 ill Barnstable County Registry of Deeds, Book 66, Pages 107 and 100. . Containing twelve to fourteen acres. . Excepting from the above premises any. interest in the houselot at Boo Wakeby Road, Marstons Mills. Also excepting any interest that may accrue to my benefit as a result of deeds from my parents William C. .Gifford and Patricia L. Gifford and my uncle, Maynard T. Gifford to my aunt Priscilla E. Gifford. BARNSTABLE COUNTY REIGIISTRY OF O(EEOIScn i GEEDS REG. 01 CO IJWLSISL,I •;. Lb) I, grim 15 OOD 71 TAX 9.12 ' TAX" 13.68 TOTAL 9.12 CH41t 13.68 j CI-IECK 9.12 r 5482A000 11:06 0011 EXCISE TAX 002 fliffi i"1:07 COUNTY EXCISE TAX ID m it th 1 8th 5ctobaetresx 95 t 1plhlees y band and Beal Ibis day of 19— Alu io 12 cShari Lee Giffo'id' 'Johnson IDhe fllaulinauiueul111 of flloslifidptselts "' m State of Maine October 1 Somerset County RARkRORR 18 19 95 , 'hcnpersonally appealed file abuvcnanied Shari Lee. Gifford Johnson and acknolvic(Igcll file forcgoing Insminicnf to he her tce act;Intl deed before lilt i e j i Nollfry Public—Justice 0111le Peace , I litycotnmisslooeapires September 20105c 2002 tlnda S.Cipriano,Notary Public 3 V Individual—.1olot Tiatanle—Tenants In(.ornmon•) State of Maine j #IAV 00ni taleslon Expires 9/2O/2002 ! " 1 . , CnArren I81 set:.6 AS Ann1NI)Fli DV CIIAPTCR 497 of 196�j��pplA�''�Q+T�QQ��CC pp��//±±���sTTppV�/ it fur reaud shall contain ur haee nuiotscd upon II die full name,tuldcnct'ithlylFh ROLE aVIHtNf4l1 R PAIDEEDS ai ..nun)ill the roll cunslduaUun Ihca"nf in dollars ur the nature of the odiet eonslJcradlun thcrt•rnr,II nut dc9h,cird fur a t sprt II s ,n j tuns.Thr 1u11 cnusldcratlnn shall utcan the lulal prlcc(ur the conveyance a•Ithom dcducdun fur any Urns OF encnti,hrao"rs T"ll tic( Gy Ilu•Pnntt:c OF rcitsalnhig Ihcreori.All such enduisnnenta and rceitala 511311 he recnldrd as rate n(the dccd.Palluic lu cunipl i.lilt dds srrdon shall nut alfrcl the calldily of ail-dccd.No rcgblrr of dteds shall aeccw a dccd(or recordhig unless It is In cnngdlance selt1i " il,r r•b "nt, r.l ihk srrilnn. ' 91 y�,c q✓Z S-ro-ems w< < l 3 _bQ-- 12) .• 7--0 s,e-e— "` of y _� F( e- �l_T r... tiS_es +-T . -20,>�-. s -✓ (�lo_c-Lc_i-.� • be 2 -aC -� (.cJG�e -�2—(mil s—Sm _. ___ 20 JL— P20_ _4,-2- -P_e% e- _ 4�� . alz f6� Ciffi �6 Set 4-9— kut I u IQ- . } t �y 1 t i � 11 AFFIDAVIT OF THOMAS PERRY BARNSTABLE BUILDING INSPECTOR August 17, 1999 I, Thomas Perry do depose and say: At 12:30 on August 16, 1999,I received a phone call from Kathy Maloney,Barnstable Building Department Office Assistant,that the gravel pit on Wakeby Road was screening top soil. Kathy Maloney said that Ralph Crossen asked for me to go over and see what was going on. When I arrived, I drove into the main entrance and when I got into the pit, I observed a front-end loader in the back areAscreening dirt in a dirt screed. Then I drove over to the side area to see if anything else was going on. When I started to come from there,the operator of the front-end loader saw me and started to drive over to where I was. He got out of the machine and came over to my car. I then handed him one of my business cards and told him that my boss,Ralph Crossen asked me to come over and see what was going on. He then barked at me that he had every right to do what he was doing and to"get the f off my property." I then drove away and as I was leaving the front-end loader followed at a high rate of speed which seemed like he was trying to catch-up to me. He stopped when I got near the entrance. Signed under the pains and penalties of perjury this 17th day of August, 1999. THOMAS PERRY BARNSTABLE BUILDING INSPECTOR SQ¢ Lr eA- o� �1�eoPrt �lnora AFFIDAVIT OF RALPH CROSSEN TOWN OF BARNSTABLE BUILDING INSPECTOR August 17, 1999 I, Ralph Crossen, do depose and say: After receiving two phone calls from Chris Keyes on Monday, August 16, 1999, I returned the calls in the afternoon. Chris Keyes apologized for getting rude to one of my Inspectors; Tom Perry that day. Mr. Keyes claimed he thought Mr. Perry was an abutter and he kicked him out of the pit. I sent Mr. Perry to the site to document activities taking place. Mr. Keyes admitted to me that he was screening loam and bringing in material at the rear section of the pit. He disputes the judge's ruling limiting his activity to the original five (5) acres only. He is not going to stop. Mr. Keyes said he will continue his legal battle. Signed under the pains and penalties of perjury this 17th day of August, 1999. Ralph Crossen BARNSTABLE BUILDING COMMISSIONER i i z ' A d ri r , a 7( # r. _q S f. �&)_IJI ocid���-.- CJ a ke, , r -ems---f- P A o%jCQ soAl Lao i t , i J� ' j a . i i _^ � 1 i.�-w��- HENRY L. MURPHY, JR., MURPHY AND MURPHY TELEPHONE J. DOUGLAS MURPHY (508) 775-3116 COUNSELLORS AT LAW F A X G. ARTHUR HYLAND, JR. 243 SOUTH STREET (508) 775-3720 SUSAN MERRITT—GLENNY LOCK DRAWER M • ALSO ADMITTED IN CONNECTICUT HYANNIS. MASSACHUSETTS 0260 1--1 4 1 2 E-MAIL 11879 1 murphlaw©capecod.net PLEASE REPLY OUR FILE NO. 118 7 9 NOTARY PUBLIC September 15, 1997 Ralph Crossen, Building Commissioner TOWN OF BARNSTABLE 367 Main Street Hyannis, MA 02601 RE: DEMAND FOR ZONING ENFORCEMENT RE: PREMISES AT ASSESSOR' S MAP 13, PARCEL 52 Dear Mr. Crossen: Enclosed herewith please find two copies of my letter addressed to yourself as Building Commissioner requesting zoning enforcement . Please accept one copy for filing and time stamp the other for return to me as evidence of filing. I am coincidentally filing with both the Commissioner' s Office and the Town Clerk. Thank you for your assistance. cerely, J. Doug Murphy JDM:rj j enclosures TOWN OF BARNSTABLE BUILDING DEPT. SEP 15 1997. I' k LOSORDO & DOWNS Attorneys at Law 78 Route 6A P.O.Box 1637 Benjamin J. Losordo Sandwich, MA 02563 Gregory M. Downs Phone(508) 888-6067 Mary M. Gaffney Fax(508) 833-2307 October 24, 1997 Ralph M. Crossen Building Commissioner Town of Barnstable 367 Main Street Hyannis, MA 02601 RE: 810 Wakeby Road Dear Mr. Crossen: Please note the recent cease and desist order dated October 22, 1997 is addressed to individuals which to my knowledge are not record owners of the subject property. Perhaps Patricia Gifford , Maynard or Beth LinnelI have transferred interest since the Superior Court litigation was commenced. I assume you also mean to include Gifford Brothers Sand and Gravel Inc. who is also a record owner of the parcel. Because the cease and desist order directly affects Gifford Brothers an appeal of the order will be filed on it's behalf. I apologize for not providing information earlier. We have in fact been in the process of the taking of several depositions relative to the ownership and use of the property. The Town is also involved in litigation in Barnstable Superior Court docket 95-922 which involved the prior nonconforming use and the filing for a permit. Pursuant to an agreement between the parties the Town continued to allow the ongoing operation and Gifford Brothers made timely application for a permit under a reservation of rights in early 1996. Evidence presented in the letter dated September 11, 1997 from Attorney Murphy actually supports the prior use of the property as a gravel pit although the language he selects from the proceedings in 1964 would seem to indicate otherwise. In particular I would point to the language at page 2fne 3 of the 1964 decision which states"(t)he location in which the petitioner proposes to locate his business is in a gravel pit near Wakeby Road in Marstons Mills." Discussion by Attorney Murphy of the large area and the screening ignores the fact the Board already knew and had viewed the operation of the pit. The"gully and trees referred to in the decision still appear on the portion of the property on which the out building and the salvage yard exist. Lorenzo Gifford and his son William E. Gifford in fact operated the pit in the early 1950's. This fact is further. supported by the affidavit and deposition testimony of Patricia Gifford (William's wife) and operators and users of the yard over the years. The operation of the pit included screening, trucking and storage of materials. The Town actually tested the materials and agreed to take the sand and gravel from the site for use at the Town Landfill. The previous Building Commissioner should also be able to verify to you the continued use of the property over the years. When you and I discussed the'operation of the business this last Spring you were concerned with the"transport of wood waste" but made no indication in your cease and desist order dated May 9, 1997 of any other portion of the operation. It appears Mr. and Mrs. McDonough purchased property abutting an existing gravel pit and salvage yard. No complaint was made during all the years Mr. Robert Bortolotti was processing, storing, loading and transporting materials from the site nor during the prior periods when Lorenzo and William were operating the site. Again I apologize for not responding to your requests and those of Town Counsel earlier. Please let me know how you wish to proceed. As the appeal will be taken and the Superior Court action remains outstanding the business will continue to operate.Certainly any alleged harm to the abutters is outweighed by the survival of the business on the property which supports several people and has been recognized by the Town over the years. Please note that while the contempt proceeding against the Town was withdrawn on the agreement to apply for the permit under a reservation of rights; the Order of the Court dated July 2, 1996 restraining the Town from interfering with the operation of the business remains in effect (see attached Order). Sincerely, a Gre o M. Downs gd/gmd cc: Town Counsel Attorney Murphy Attorney Sabatt Client LOSORDO & DOWNS Attorneys at Law 78 Route 6A P.O.Box 1637 Benjamin I Losordo Sandwich, MA 02563 Gregory M. Downs Phone (508) 888-6067 Mary M. Gaffney Fax (508) 833-2307 Board of Appeals e40 Town of Barnstable 367 Main Street Hyannis, Ma. 02601 October 24, 1997 RE: Appeal of Cease and Desist Order 810 Wakeby Road, Marstons Mills Certified Return Receipt Dear Members of the Board: Pursuant to MGL. Chapter 40A section 8 Gifford Brothers Inc., as a record owner of the above identified property and as a party"aggrieved"by the issuance of the Order to Cease and Desist on October 22, 1997 hereby appeals said Order. Please note as the Order was given to a Harriet Haywood as an alleged Trustee of the property and the action of the Town is subject to the Restrictive Order of the Barnstable Superior Court preventing interference from the ongoing operation, this appeal is made under a reservation of any rights to pursue further action in the appropriate jurisdiction if necessary. Gifford Brothers Inc. does, however, understand the necessity of attempting to cooperate with the Town and with the abutters to the property to - address any particular problems and questions The basis of the appeal.is the.nonconforming nature of the operation of the gravel pit as outlined in the attached letter to the Building Commissioner. Please advise this office of any additional information requested. Sincerely, gd/gmd Gr M. Downs enclosure cc: Ralph Crossen Town Counsel Attorney Murphy Attorney.Sabatt (TO PLAINTIFF'S ATTORNEY: PLEASE CIRCLE 'TYPE OF ACTION INVOLVED: TORT MOTOR VEHICLE TORT CONTRACT EQUITABLE RELIEF OTHER COMMOR�UEALTH OF MASSACHUSETTS BARNSTABLE, ss. a SUPERIOR COURT NO. 95-922 GIFFORD BROTHERS SAND AND GRAVEL, JaBYECOPYATTEST VS. DEPUTY SHERIFF BUILDING COMMISSIONER FOR THE; TOWN OF BARNSTABLE et al RESTRAINING ORDER i To the above-named defendant You are hereby summoned and required to serve upon ,Gregory M. Downs, Esq. , plaintiff's attornc , whose address is Losordo Downs, P. 0. Box 1,6.37 Sandwich, Massachuse is 02563, ............................. an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. if you fail to do so, judg- ment by default will be taken against you for the relief demanded in the complaint. You are also re- quired to file your answer to the complaint in the office of the *Clerk of this Court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or,occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. WE ALSO NOTIFY YOU that application has been made in said action, as appears in the com- plaint, for a preliminary injunction and that a hearing upon such application will be held at the Courthouse at .........Barnstable................. ...... in the County of .....Barnstable in the first session without jury of our said Court on.....Friday the twelfth . day of ......July..................... A. D. 19 96 at ......... �B... ......... o'clock., at which you may appear and show cause why such application should not be granted. In the meantime, until such hearing, WE COMMAND YOU, BUILDING COMMISSIONER FOR THE TOWN OF BARNSTABLE AND TOWN MANAGER FOR THE TOWN OF BARNSTABLE and your agents, attorneys, and counsellors, and each and every one of them to desist and refrain from interfering with the operation of. plaintiff, Gifford Brothers Sand and Gravel, Inc. !s,. busihess, .located at 44 Asa Me:iggs. Road, Sandwich, Barnstable County, Massachusetts. IT IS FURTHER ORDERED'-that said ' defendants and your agents, attorneys, and counsellors, and each and and every one of them to desist and refrain from interfering with the removal of materials for use by 44 Gravel and Sand, Inc. , pursuant to public contract with the Town of Barnstable ROBER'P A. MULLIGAN Witness.. ...................................... ...........................................................Esquire,at Barnstable, the ..second.........................:................................. clay of ..........Ju.1.Y...................................................... in the year of our Lord one thousand nine hundred and...ninety—six at 2:20 m. ' ............... . Clerk NOTE: When more than one defendant is involved, ie names of all defendants sl appear in the caption. If a separate summons is used for each defendant, each should be addressed to the particular defendant. NOTICE TO DEFENDANT You need not appear personally in Court to answer the complaint but if you claim to have a defense, either you or your attorney must serve a copy of your written answer within 20 days as specified herein and also file the original in the Clerk's office. �,ws.er... ....r..w..ssi._-_..____.:._':1._1.... -- .______......__._�__.__v........�......✓........v..lr ..�..�ua..-.•�Le.n.•...:-.r... ~j.�+�.��e�.�:. _ j I TOWN OF BARNSTABLE ' Board of Appel Petitioner Appeal No. z •10 s A9�i°2.1 1964 FACTS and DECISION Petitioner L. T mrWR nTrr.-Tm '. ------- filed petition on -!Pig 7th 1 t requesting a varianc for premises at of _%M_t=3 7-411g in the village ----- adjoining premises of Im 1. 'Pubb A RqW IV ova Dm Jadk- to for the purpose of asirp D.-Cidnan fe . altivam, of t°nlAr!. o8 ,,.•A t1 toruce of =md parts -------------- Locus is presently zoned in foaidanto H3 Notice of this hearing was given by mail, postage prepaid, to all persons deemed affected and by publishing in Cape'Cod Standard Times, a daily newspaper published in Town of Barnstable-a 2opy of which is attached to the record of these proceeding, filed with Town Clerk: ' It A public hearingb �® y the Board of Appeals of the Town of Barnstable was held at the Town )ffice B 3*15 O wilding, Hyannis, Mass., at P.M. ATzril 23ad O 1 .Don said petition under zoning by-laws. Present at the hearing were the following members: R04W-f .J• TTfrj ',AY lL�SS%D �. P1Z Chairman At the conclusion of the hearing, the Board took said petition under I advisement. A view of the locus was had by the Board. I On ...... 19......... the Board of Appeals found Thatcher Glfferd# the Petitioner, teas reprononted by Joseph Boechers Raq. Mr loahor stated that the petitioner -was aselcing s Variance to move an existing atomobilo parts salvage business to a new location: Tho location in which the 3Litionor proposes to locate his businean is In a r- avol. p# nour Wakeby Road .a Flnrst;ons :lilla, The iwea is now zoned as Residence, -Z-1 a eae The buainaes Uch tre petitioner presently operates in Santuit tins beCOMO an eyesore to the =.. .unity and the petitioner reels that it would be in t1v bast Into.-cats of al )rne:nod to mono the tusiness to ULU area wall away from the travel.lod highway. t is the opinion of many people thaw tho situa:A= eas it noEc exists creates =dship not only for the village of Santuit, but also for Cotuit. Mrs Beechen , ;,a':ed that the proposed l:ocaticn-la about l000 Poet from tho oroad IotIH�at n a hollow with a screen of trees surromdIng tho fr=t F� toted tha,: stored vehicles would not be visibly rrom U-0 road. 2Ir. Boocher lrthor stated that the physical condition or tbD proposed location was auah i mt it could not be used for residential purposes. To deny the owner waif th and for any purpose would result in- a oevere hardship to him. 12 peep le er uoko ar were recorded in favor of p+etitiounwa request and 6 poopla spoke in pr)aaitiona automobilo parts salvar- It was the opinion opt tile Board that t axis t maration in its present location, ham created a serious probl= for the entim .9iF hborhood. TY�a location of s* y;a lvage rdo is a diff!cult probl.o= in any area ,f ti-o tonne However, it* if, IMM, ts;nt that they be placed in areas zXft= away ram the well-travelled highways and where the day to daf- operntione may be ;cr©ored t'rom- vlow an much as possibl. a T + loZttiaIIirportsuat t for vich o note :eekr3 T - ission to use, seems to Tat these* sons who otai Property n�-er the propovod location spoko in favor of granting x3r:his request an the ertyer of two evils. The Board further found that owing to :ondiLiona o itriat ^atthea literal onforcementt ionfG -env rally ttG zoning dint. ict. i ;he lay-Law would invol-m substnutial barclmiiip to the petitioner and i'�u*ther the diet' could be gr©ntod without nullifying or substantially derrogating hors th Intent and purpose of the zoning by-laws The Bacmd unanimously votod to grant )etitioners. requsrt , subject to �ated�entirel o to ndithz�i.�sre� behind the use sareen land in the now location be restricted.. g �rQes. s That mly we buildin =7 be const.-ucted ibr use in connection with salvage yard and such buildtig must be located behind the sateen or trees. 7o trees are- to be ,removed• I L-rimt the present location at Ss3ntuit be oonpleto 21eared of all Material with4.n a =s asanable tiWj Distribution:— Board of Appeals Town Clerk Town of Barnstable Applicant Persons interested Building Inspector ,� M/ II . RAM /I1Y ;/ y .. LL r As H�R�aes�Ra \ 3A w A.-Lp . \ •Lf,' \ !t 6 ._. ��� Jam— \ (O \ AN a \ p 53 \ f q 1\ L•V Po \ b '4 a I4..66 uL .. As 0 O \ © © 1.12AC- P 7 RflT: 9-1 w-» 5�-2 \ 3.31AC I uo-f ult: ff (D@ 3-2 3-1 © \ Cf 1.00Ar- 3 73 4.14 Ac .0 \ 1.oOAC .e aC m 3 -4 i a I.00AC 3-S 1.00-Ac \ q so \'So a75 aTO . a 50 ISO a 47 47 140' o A C J -I 1.1bAC- �-Z l-3 /3-1 i 'ro LOpAC 1.0OAC.0 1.02Ac- o v � N ,v N G 1 y0 '1 LOSORDO & DOWNS Attorneys at Law. 78 Route 6A P.O.Box 1637 Benjamin I Losordo Sandwich, MA 02563 Gregory M. Downs Phone (508) 888-6067 Mary M. Gaffiiey Fax(508) 833-2307 October 27, 1997 Charles M. Sabatt, Esq. Ardito, Sweeney, Stusse, Robertson&Dupuy Mattacheese Professional Building 25 Mid-Tech Drive, Suite C West Yarmouth, MA 02673 RE: Gifford Brothers vs. Patricia Gifford, et al Dear Chuck, Enclosed please find my recent correspondence with the Town of Barnstable. It would appear to be in your clients' best interest to support the continued use of the property whether or not Gifford Brothers is the operator. In regards-to the litigation please.forward to me the ledger book which Patricia Gifford promised to supply. I look forward to having the opportunity to speak with you at Maynard's deposition, if not before. Sincerely, M. Downs GMD/rsl enclosure ._ .s.:.'�.�_. y_•.�._ ..�._._....r._��E"s:C4++.+Mr.-..ram .... .... ... __ __ ...`........e ......... ......�_ .. ._...._.........._..._.�.._ _.._ LOSORDO & DOWNS Attorneys at Law 78 Route 6A P.O.Box 1637 Benjamin I Losordo Sandwich, MA 02563 Gregory M. Downs Phone (508) 888-6067 Mary M. Gaffney Fax (508) 833-2307 • 9 s October 27, 1997 I Douglas Murphy, Esq. Murphy&Murphy 243 South Street Locked Drawer M Hyannis, MA 02601 RE: McDonough/810 Wakeby Road Dear Attorney Murphy, Enclosed please find correspondence with the Town of Barnstable regarding the ongoing operation of the gravel pit at the above location. Please let me know if you and your clients would like to discuss the matter further to attempt to achieve a mutual agreement. Sincerely, e . Downs enclosure I - - TOWN OF BARNSTABLE BARNSTABLE I OFFICE OF TOWN ATTORNEY 6 y �e$ 367 MAIN STREET AIEo �► HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D. SMITH, Town Attorney TEL. (508)790-6280 RUTH J. WEIL, Assistant Town Attorney NIGHT LINE-AFTER 4:30 P.M. CLAIRE R. GRIFFEN, Legal Assistant (506)790-6283 EILEEN S. MOLLICA, Legal Clerk FAX #(508)775.3344 October 21, 1997 Gregory M. Downs, Esq. Losordo & Downs 78 Route 6A P.O. Box 1637 Sandwich, MA 02563 ifford Brothers, Inc. and Christopher Keyes Assessors ap 13, Parcel 52 Dear Mr. Downs: I-am somewhat baffled by your letter to me dated October 16, 1997. Again, you seem to be improperly confusing Chapter III, Article XI of the General Ordinances of the Town of Barnstable which requires all sand and gravel pits operating within the Town of Barnstable to obtain a sand and gravel permit, and the separate request for zoning enforcement received by the Building Commissioner on September 15, 1997, from several residential abutters to your client's sand and gravel operation. With regard to the sand and gravel permit required under Chapter III, Article XII of the General Ordinances of the Town of Barnstable, I understand, that on or about August 18, 1997, your client was sent a package of materials and asked to contact the Assistant Town Manager to set up a meeting to discuss the procedure to process the sand and gravel permit application. To date, your client has failed to initiate this process. For your reference, I am enclosing a duplicate package of the previously sent materials. From your letter, I glean that, upon your receipt of the enclosed, you will take the necessary steps to assure that your client promptly begins the process by contacting Assistant Town o Manager, Mary Jacobs. , 195MN/downs-21 Gregory M. Downs, Esq. Re: Gifford Brothers, Inc. and Christopher Keyes i Assessor's Map 13, Parcel 52 October 21, 1997 Page -2- Both you and your client were previously notified about the separate request for zoning enforcement that the Building Commissioner has pending before him. As my letter of September 30'h indicated, the Building Commissioner is required to respond to such a request within thirty (30) days of the date of the complaint which was received on September 15, 1997. 1 urged you and your client to provide Mr. Crossen with any relevant information within the prescribed statutory time period. I am unclear from your letter whether you have done so. suggest that you directly address the zoning issue with the Building Commissioner. However, be advised that the Building Commissioner may have already been compelled to issue a decision on this matter because of the time deadlines imposed upon him. Thank you for your consideration of this matter. Sincerely, RJW:cg Ruth J. W il, sistan Town Attorney Town of B rn able cc: James D. Tinsley, Town Manager cc: Mary Jacobs, Assistant Town Manager cc: Ralph Crossen, Building Commissioner V Encs. ]95-0288/downs-2] I LOSORDO & DOWNS Attorneys at Law 78 Route 6A P.O.Box 1637 Benjamin J. Losordo +I Sandwich, MA 02563 Gregory M. Downs ou�2 0 W Phone(508) 888-6067 Mary M. Gaffney Fax(508) 833-2307 Tp*,4 Of BA�:����« Ruth J. Weil Assistant Town Counsel Office of Town Attorney 367 Main Street Hyannis, Ma. 02601-3907 October 16 1997 RE: Gifford Brothers, Inc. Dear.Ms. Weil: I apologize for the delay in responding to your letter of September 30, 1997. As you may be aware the ownership of the subject property has been the subject of litigation both with the Town and with Patricia Gifford. We previously had agreed with Town Counsel to file for the permit without relinquishing our rights under the litigation. Included in those rights was both the nonconforming nature of the operation and the fact no one in Town Hall knew of any one else having to apply for the permit. We did apply under a reservation of rights in 1996 and then heard nothing until the recent correspondence from Mr. Crossen. Within the litigation were affidavits from the existing owners and some past contractors who had used the yard for years dating back to the 1950's. I would be willing to help the town in any way you deem appropriate, but am unaware what law or ordinance can do more than ensure the health and safety issues previously addressed on several visits to the site by Town Officials. Please contact me with the application information necessary and I will advise my client to comply to the greatest extent possible while reserving our rights outlined previously. Thank you for your patience in this matter. I understand the pressures which conflict among the property owners may cause. Sincerely, Downs gd/gmd i . �1f1E ' $ : . The Town of Barnstable • ,eartsrne�, • Office of Town Manager Eo� 367 Main Street, Hyannis MA 02601 Office: 508-790-6205 James D.Tinsley,CPA,Town Manager Fax: 508-790-6226 Mary Jacobs,Assistant Town Manager Permit to Remove Soil, Sand and Gravel, and Sand Pits Within the Town of Barnstable (Chapter III, Article XIII) Date Applicant Name Applicant Address Corp.Name D.B.A. Address of Property To be Permitted Mailing Address Assessor's Map# Parcel # Zoning Property Owner Owner's Address Manager of Operations Manager Address Tel. # Reviewed by Site Plan: Building Commissioner Date Approved by Town Manager: Town Manager Date Expires Permit may be subject to conditions: ❑ see attached ❑ no conditions imposed sndptfrm Public Hearing Procedures for the Issuance of Permit to Remove Soil, Sand and Gravel, and Sand Pits Within the Town of Barnstable 1. Authority to Issue Permit Town of Barnstable General Ordinances Chapter III, Public Health, Safety, Welfare, Convenience and Good Order Article)III, Removal of Soil, Sand and Gravel and Sand Pits. 2. Official Authorized to Issue Permit Town Manager. 3. Public Hearing Application Procedures The Town Manager shall utilize the Town's Site Plan Review process in order to obtain appropriate staff input for the issuance of this permit. a) Site Plan Review: File application with Building Division. b) Upon completion of Site Plan Review, Building Commissioner will forward all recommendations to Town Manager for review. Town Manager will schedule a Public Hearing within a reasonable time. If review/approval by the Zoning Board of Appeals or Cape Cod Commission is required, such referral will be made at this time and further proceedings under this process will be suspended until action is taken. 4. Notice to All Interested Parties a) Advertise in newspaper. Ad placed by Town Manager not less than two (2) weeks before hearing. Ad paid by applicant. b) Notice sent by the applicant to property owners within 300 feet(as given in the Town of Barnstable Assessor's Book)by certified mail, return receipt requested(green card). The green card is presented to the Town Manager at hearing, along with a copy of the hearing notice provided. 5. Town Manager will conduct the hearing by: a) • Reading legal notice • Hear applicant's presentation • Hear Town officials • Hear abutters • Hear boards, citizens, community organizations, and others Note: Town Manager may impose a time limit on presentations by abutters, citizens, and community organizations. b) The Town Manager shall, after hearing all testimony relevant to the application, make a determination to close the hearing, continue the hearing, or keep the record open for a specified period of time for the introduction of additional testimony. i 6. Issuance Determination on Application for a Permit a) Following the hearing,the Town Manager shall issue a determination on the application within a reasonable period of time. b) The determination of the Town Manager shall be sent to the applicant in writing. c) The determination of the Town Manager shall also be filed in the office of the Town Clerk. d) Town Manager may impose conditions on the permit. 7. Permit Length The permit shall be valid for one (1)year from date of issuance, and shall be renewable. 8. Fees Permit Application Fee $50.00 9. Bond At the time the permit is approved, the posting of a bond shall be required in the amount that shall be sufficient to cover the closure plan as approved by the Town Manager. f ARTICLE XIII. REMOVAL OF SOIL, SAND AND GRAVEL AND SAND PITS Section 1.. No top soil, sub soil, gravel, sand or other earth may be removed from the Town of Barnstable without first having obtained a permit from the Town Manager. A permit, with conditions imposed where necessary, may be issued for the removal of top soil, sub soil, gravel, sand, and other earth if the Town Manager, after a public hearing, shall so order provided that no such permit shall be granted except upon written application and after a public hearing of parties interested and consideration of their evidence by the Town Manager; notice of said hearing being given by publication of the time and place thereof in a local newspaper not less than two weeks before said hearing, the expense of publication to be bome by the petitioner. After such a hearing the Town Manager shall render a decision in writing stating the decision and the reasons therefor and file the decision with the Town Clerk and send a copy thereof to the applicant. Such permit may be renewed. Section 2. No top soil or sub soil shall be removed from place to place within the Town of Barnstable from an area of ground consisting of more than 5000 square feet unless the person removing such top soil or sub soil shall replant the entire area of such removal with rye, vetch, wheat, legumes or other soil improving plants, or plant with a permanent cover crop or reforest the area. Section 3. No sand or gravel shall be removed from place to place within the Town of Barnstable, except that a sand and gravel pit may be open and used for such purpose if it is located 100 feet or more from a street line and no more than one entry and one exit, provided a permit is first obtained from the Town Manager, after a public hearing has been held as set forth in Section 1. The owner or owners of all sand and gravel pits shall bum or cart to the town dumping area all dead trees and shrubs when any area amounting to more than 5,000 square feet becomes unsuited for further use, and in such cases the area shall be replanted with trees or shrubs to prevent soil erosion. Amended March 6, 1965. Approved March 25, 1965. Rescission of old text. Adoption of new text. Section 4. The foregoing ordinances shall not apply to land in public use nor shall they apply to the case of materials removed or excavated for the purpose of improving, grading, landscaping, cultivating the ground, nor for construction of buildings and the making of public or private improvements. Section S. Any person violating the provisions of this ordinance shall be punished by a fine not to exceed fifty ($50.00)dollars for the first offense, one hundred ($100.00) dollars for the second offense and two hundred ($200.00) for each subsequent offense. Adopted May 21, 1951. Approved July 5, 1951. 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'„♦ �}, ''1P�37L�/}*j.^������T.r�'46. {e �. i f r .,�l �l if+x��".. �� �'A 7 ��:6r'�r� , :fFrr�1 h., jy�1't�l�'�•y`'".�l 'r �,, 19c a it I U- -"Ke f .:fie; t ,x• ::, rt _ �` i.* a •o ✓ 1✓k'k"�'t.�'7i,.cn #�u tt rtlF��a`.t 1'Y f}l, YJ Yl' a • t ' i'- t "[ '�� ��`wt "��yt'��v u _ c,F le•.,a�"` }ti wF� Ki �' r ) ,+:: \,.• � Mf Stir,at�' Sq•d'.�, r't �f e ywj;..:✓ h ,. -�+Y.. )frr,/ •t,•Y;,?t't r.�r=4 rc�`.rr. ' .. Y i 9 �+. - :��:c� `t�.'4 �r.T •x itr,'' .b :,r ''-ri L, u.r.p?Rr J ,:'yM„�'... t I THE SM PLAN REVIEW PROCESS: Once you've made the decision to locate in Barnstable, you should visit the Building Commissioner's office to discuss the permitting steps. This first meeting is necessary to acquaint you with the process and discus the visits you may be facing before other Town Hall departments and/or non-Town Hall groups such as the Cape Cod Commission. While most business plans do not trigger the need for this outside review, it is a possibility for the largest projects and, if applicable, will be discussed here. This step is not unique to Barnstable, and if your business scope is large enough to require Cape Cod Commission review, it would do so anywhere on the Cape. If Commission review is required of you, you can be assured that we will stay involved with you through that process until you are finished and return to Town Hall to resume the Site Plan Review process. The initial visit to the Building Commissioner's office will usually involve an informal discussion between yourself and the Building Commissioner as to the locations you have in mind, the scope of your project or modification, and what steps you will need to go through. In many instances, small changes or modifications to an existing building can be handled informally and without a great expense to you. If your project fits into this category, it is quite possible to go through Site Plan Review and be ready for a building permit within two weeks! As an applicant, you are encouraged to have all your intentions finalized for this initial meeting so the Building Commissioner has all the information at his fingertips in order to be better able to guide you. The Site Plan Review process in Barnstable is a unique process that is administrative in nature and handled during the day at Town Hall. Unlike other towns where Site Plan Review is handled in formal night meetings over several months due to continuances and delays, the Barnstable process is both efficient and effective and, best of all, it takes a fraction of the time! If the result of your initial meeting with the Building Commissioner is that you must go in front of the Site Plan Review committee, you will be briefed as to whether it will be an informal hearing or a formal hearing. Informal hearings can be expected when the scope of the project is minor in nature such as a minor use change with very little exterior work, a reconfiguration of a parking area, or a new free-standing sign. If your plan is considered minor, you may be asked to bring in very little as far as the lot information is concerned (possibly only a surveyor's site plan). You would come in and informally tell the group what your plan is. Suggestions would be given and, if all are in agreement, you would probably be finished and either be ready for a building permit, or a license. If your proposal is somewhat larger in scope, such as a new building or a major change of use or an addition to an existing building, you will be asked to present engineered plans and come in before the group to propose your plan. Comments and suggestions will be given both before and during your hearing. In some cases, revisions are necessary. In the end, you will walk away with either the support of the group for a building permit or, for a Zoning Board Special Permit or Variance. In some cases, a referral to the Cape Cod Commission would happen at this point, but only on the biggest projects. Generally, the process in Barnstable is handled in a professional and expeditious manner. The average time an applicant is involved with Site Plan Review is three weeks as opposed to three months in other towns. In most cases, if your proposal needs Zoning Board action in addition to Site Plan Review, both applications can be filed simultaneously resulting in an overall time frame that is streamlined and efficient. THE COMN4r= AND WHAT IS EXPECTED: When you come in front of the Site Plan Review Committee, usually on Thursday mornings at Town Hall, you can be expected to meet a group comprised of the Building Commissioner and staff from the following departments: Board of Health, Conservation, Planning, Fire, Public Works Engineering, and Licensing. In some cases, the Historic Society and Zoning Enforcement Officer would be present - depending on the project. You can expect to be assigned time. These meetings maybe quite busy and an agenda is usually published to help keep the process as efficient as possible. Generally, you may speak freely as the process is informal. You may be represented by an engineer, attorney, or anyone else you choose. However, this is not mandatory. We do find that the larger projects generally are approached in this manner. The review, as the name suggests, concerns itself with site issues, the impacts of your project, and how best to mitigate its impacts. Issues such as parking, lighting, traffic circulation, above and below ground fuel tanks, drainage on site, pedestrian circulation patterns, landscaping and overall layout as it may effect public safety and the fluidity of movement to and from the site will be discussed. You are encouraged to include on your site plan everything that is pertinent to the site and your plan as the Ordinance calls for. Your initial meeting with the Building Commissioner will make all this clear to you in advance. We strive to promote design standards that protect natural features to the greatest extent possible. To that end, landscaping plans are encouraged as a supplement to the site plan. Slopes in excess of 10% are not allowed, and surface water must be recharged on the site. These challenges have resulted in some creative and memorable landscaping plans in the past and will no doubt do the same in the future. WHAT THE GROUP LOOKS FOR: Office of the Building Commissioner The Office of the Building Division stands ready to meet with you at any time, including at the idea stage of your project to map out a course of action. This will include laying out z i options for you to choose from. We will also help provide you with a permitting path so your Town Hall experience is as smooth possible. The Building Division will offer zoning advice, public safety advice, Cape Cod Commission information, construction advice, and handicapped access information and advice. Since many of these areas have the ability to drastically alter the scope of your project, it is important that you make your first visit to this office. The Building Commissioner is located on the fourth floor of Town hall and is available on short notice. Please call for an appointment-(508) 790-6227 Conservation Commission Whenever new uses or non-residential construction is proposed within 100 linear feet of wetlands, shoreline resources or the coastal 100 year floodplain, the Conservation Division will be interested in your plans. For such applications, the Conservation Agent will take part in the site plan review process, and may also require a separate filing with the Barnstable Conservation Commission. While the great majority of Commercial projects do not trigger conservation interest as most of our business districts are not near wetlands or resource areas, some will With the remaining projects within its jurisdiction, the Conservation Division and Commission hold the following expectations of the applicant: • That all wetland resource areas are accurately shown on the plan • That appropriate measures are employed to prevent resource area impact • That all regulations and guidelines of the Conservation Commission are complied with. The Conservation Division staff is happy to answer your questions or otherwise assist you in the regulatory process. Our office is located at the Town Hall, fourth floor, next to the Building Division, downtown Hyannis. Call (508) 790-6245. The Planning Department The Planning Department will be present for all Site Plan Review hearings and will offer comments and suggestions concerning consistency with the requirements of the zoning ordinances. We encourage healthy growth and development while seeking to protect and preserve our towns natural resources, community character and historical designations. Additionally, we encourage development that will be compatible and in keeping with the comprehensive planning effort. These efforts include the location of site entrances, roadways and driveways, parking lot layout, the location and layout of structures, and depending on the historic significance of the project, design advice and assistance. We encourage you to call(508) 790-6290 with questions at any time. The Health Division The Health Division takes part in all Site Plan Review hearings, and will offer comments and advice on issues such as: • Septic systems location and adequacy • Fuel storage tank age, size and location. • Food service equipment location, number of seats, and grease trap location and size. • Swimming pool equipment location. The Health Department will help with pre-hearing advice at any time. We are located on the third floor of Town Hall. Call (508) 790-6265 with questions. Fire Departments Within the town of Barnstable there are five separate fire districts. These fire districts work closely with the town on all life, safety and property preservation issues. Regardless of which fire district your project will be located in, the fire department will be reviewing the project to resolve any issues or give advice involving: • Access onto the property for fire apparatus and ambulances • Access around buildings, including stretcher access areas and fire department key box locations • Location and size of all utilities on the property • Location of hydrants and mains adjacent to the property • Location of fire protection equipment on the property • Location of all dumpsters, six yard capacity and over • Location of and amounts of all hazardous materials stored, used or generated on the property To enable the fire department to assist you throughout the entire building project they will need the use group classification and square footage for all uses both existing and proposed. This information will be used to determine exit, fire alarm and fire protection needs. Consult the Fire Chief or Fire Prevention Office in the appropriate fire district at: Barnstable Fire Department (508) 362-3312 Cotuit Fire Department (508) 428-2210 Hyannis Fire department (508) 790-6328 Centerville/Osterville/Marstons Mills(CON"Fire Department (508) 790-2375 West Barnstable Fire Department(508) 362-3241 Department of Public Works- Engineering Division The DPW engineering Division is part of the Site Plan review team, and is responsible for critiquing plans for compliance with the Town of Barnstable Ordinances: We normally review a site for public safety, relative to the following: • Traffic impacts at driveway entrances(vehicular conflicts) • Sidewalk handicap access(pedestrian safety) • Stormwater containment on the site(environmental pollution) • Parking configuration on the site(vehicular and pedestrian safety on site and adequacy of off-road parking) The Engineering Division is located in Town Hall on the third floor. Call (508) 790-6310 between the hours of 8:00 AM- 10:00 AM and between 1:00 PM- 2:00 PM Monday through Friday. Historic Preservation Division Site Plan Review, as it relates to historic Preservation, allows for review of factors such as the placement of buildings and environmental impacts such as traffic, noise and effects to natural and cultural resources in the project area. Historic Preservation concerns can be incorporated within these criteria for a successful Site Plan review. For example, any project including an historic resource over 50 years old, especially those resources that are listed in the town's Inventory of Historic Resources and the State and National Registers of Historic Places, should address concerns regarding architectural design and scale, changes to historic buildings, i.e. demolition or additions, and screening or buffering from unrelated areas. If the project site is located within a historic district, will construction activity enhance rather than detract from the integrity of individual buildings and a sense of community character? 1 TOWN OF BARNSTABLE INFORMATION APPLICA'dTON G i Site Plan Review Process Applicant obtains application by visit/phone See/Call Site Plan Coordinator 790-6227 Building Division Town Hall Review by Building Commissioner Small Projects Medium Projects Large Projects such as such as such as Ste,Par1°g Change of Use Large Commercial Development I I I Time Line Requires Sketches Requires Requires in q or Engineered Engineered Plans WORKING Scaled Drawings Drawings DAYS I I I Day OneSite Plan Coordinator Through Day Five Reviews Application for Completeness and forwards to Staff for Review I Staff'Review Period Day Six Through Zonbg/Bu lding,Planning,Conservation,Health,Engineering,Fire,Other Day Fifteen 'Note:All Comments negamkv the Review Shall be Sent to the Building Commissioner Public Site Plan Review Day Fifteen May start with an Informal or Full Review. During this time Staff Comments will be heard and Through responded to by the Applicant. Changes made by the Applicant will be reviewed by Staff. Day Nineteen Applicant will submit a Final Site Plan and Staff will submit it's comments on this Final Plan to the Building Commissioner. 'Note:The Applicant can request an extension in order to address issues involved in the review. Decision Decision Mime within to 20 Days Approve,Approve with Conditions,Extend Hearing,Refer to CCC or ZBA,Disapprove I Required Procedures for Site Plan Review 1.At least six copies of completed packages of applications and all supporting documents must be submitted to the Building Division. 2.Within five working days of receiving a Site Plan, copies will be distributed to all Town bodies having an interest. 3.Within ten working days of receipt by any Town body, detailed comments are to be submitted back to the Building Commissioner. 4.The Building Commissioner may solicit the advice of any other Town agency or department he deems necessary to properly make the determinations required by this section. 5. Site plans shall be reviewed for consistency with zoning and other applicable regulations and standards. Within twenty days of receiving the Site plan, the Building Commissioner shall notify the applicant of any approval, conditional approval or disapproval, stating reasons. 6. One copy of a signed approved Site plan shall be given to the applicant. other copies shall be kept by various Town agencies. 7. Upon completion of all work, a letter of certification by a registered engineer or land surveyor as appropriate to the work involved, shall be submitted to the Building Commissioner stating that A work has been completed substantially in compliance with the approved Site plan. The Building Commissioner may certify compliance when he determines that the scope of the project warrants it 2 O IIII0dIATIONSYS1EAlSD[PAR1AIE113 SITE PLAN FOR MAP 500 PARCEL 80 AE06tAPHICINFDRAIAiIONSTSTEAlS1FRTT STANDARD LEGEND QUIT COURSE FAIRWAY C DECIDUOUS 1111E5 /J•��\` EDGE OF etusN otouRo DR VUL4111' O AuusH AREA 77 35.2 EDGE Of WATER MIT am odvEWAn IFAVID ROAD ES ......_.- 8 35.2 �• oW �� \/ tuw 1AYWTS 1s FTIOPEm LINES ��J - -' - � / �•. rulEt ItorEm uNE MA►AND►Aealtu►ARERS 2FOOTCONTOutuNE 4� , `/` ' ' • -"--- -� �. 10FDOTWKTOURLINE �4 0.5 5 R� �;�' x=• SPOT ELEVATION �+b • / 4 / SMNF WALL FENCE RETUNING WALL / t ..__ \ 41. / '\ W l ROAD 1tAaa� _:: f/' TELEPHONE['OIF \3. �� / \ = m S10NE lEfiT �' WATER ELEV. —" ?' ••• � 34.49 s' s1nA+AUNGrooE roRa/oEa 0. • �' µ}1+ wa/NEt/lF11Y I �I MEG IANKT0PWlAPHYANDPIAIINIKDATAOHEtPWUFRDAI19t9AERIAEOYEMLIGHTS.fMIDGUMAl tO1E111EIAR(EIIINESAREONIY6IAMIKREPR[SENIATIORSOF Jim n j�sl 1-�100 NIARIDATI'-100.►ARCQOATADNi1QE0it0Y1•-100[NGIN[EdNGAiT[SSOISAWSI!!1 "OPEMSOLINDARIM THEY AM NOT TRUE LOCATIONS a68-S-" y I rA�tOY 1 Town of Barnstable FOR o'` CT o"L' Date Rcmiwd.• • Application for Site Plan Review AcdanDwBr. L= Legal Description: Planning Board Subdivision Number. Assessors Map and Parcel Number. Property Address: Owner of Property Amplicant name: Name: Address: Address: Phone: Phone: Engineer Agent Name Name Address: Address: Plione: Phone: 3tora--e Tanks Utilities Zoning Classification Existing Proposed Sewer District: Number: Number: Public Flood Hazard: Size: Size: Private Groundwater Overlay: Above Ground: Above Ground: Fire District Lot Area: Sq.FL Underground: Underground: Water Number of Buildings contents; Contents: Public: Existing: Private: Proposed: ?arking Spaces Curb Cuts Fire Protection: Demolition: Zequired: Existing: Electrical Total Floor Area :'rovided: Proposed: Aerial: Residential: Jii-Site To Close: Underground: Office: X Site: Totals: Gas Medical Office: Natural: Commercial: n Historical District: Yes/No Propane: . (Specify Use) Wholesale: .n Area of Critical Environmental Concern Instutional: E.O.E.t) Yes/No Industrial: :'roject within 100' of Wetland Resource Area: Yes/No 4 �a Contents of Site Plan The Site Plan shall include one or more appropriately scaled maps or drawings of the property,drawn to an engineers scale, clearly and accurately indicating such elements of the following information as are pertinent to the development activity proposed. 1)Legal description,Planning Board Subdivision Number Of applicable),Assessors'Map and Panel number and address Of applicable)of the property. 2)Name,address and phone number of the property owner,and applicant if different from the property owner. 3)Name,address,and phone number of the developer,contractor,engineer,other design professional and agent or legal representative. 4)Complete property dimensions,area and zoning classification or property. 5)Existing and proposed topographical contours of the property taken at two-foot(21 contour intervals by a registered engineer or registered land surveyor. 6)The name,location and size of all significant existing natural land features,including,but not limited to,tree,shrub,or brush masses,all individual trees over ten inches(107 in caliper,grassed arias,large surface rock in excess of six feet(61 in diameter and soil features. 7)Location of all wetlands or waterbodies on the property and within one hundred feet(1001 of the perimeter of the development activity. 8)'Me location,grade and dimensions of all present and/or proposed streets,ways and easements and any other paved surface. 9)Engineering cros&wctions of proposed new curbs and pavements,and vision triangles measured in feet from any proposed curb cut along the strut on which access is proposed. 10)Location,height,elevation,interior and exterior dimensions and uses of all buildings or structures,both proposed and existing:location,number and area of floors:number and type of dwelling units:location of emergency exits,retaining walls, existing and proposed sign:. 11)Location of all existing and proposed utilities and storage facilities including sewer connections,septic systems and any other storage tanks,noting applicable approvals if received. 12)Proposed surface treatment of paved areas and the location and design of drainage systems with drainage calculations prepared by a registered civil engineer. 13)Complete parking and traflic circulation plan Of applicable)showing location and dimensions of parking stalls,dividers, bumper stops,required buffer areas and planting beds. 14)Lighting plan showing the location,direction and intensity of existing and proposed external light fixtrms. 15)A landscaping plan showing the location,name,number and size of plant types,and the locations and elevation and/or height of planting beds,fences,galls,steps and paths. 16)A location map or other drawing at appropriate scale showing the general location and relation of the property to surrounding areas including,where relevant,the zoning and land use pattern of adjacent properties,the existing street system in the area and location of nearby public facilities. 17)Location within an Historical District and any other designation as an Historically Significant property,and the age and type of each existing building and structure on the site which ids more than fifty(50)years old. 18)Nation of site with regard to Zones of Contribution for public supply wells as determined in a report entitled'Groundwater and Water resource Protection Plan,Barnstable,Massachusetts'prepared by SEA Inc.,Boston,MA,dated September,1985, which is on file with the Town Clerk. 19)Location of site with regard to Flood Areas regulated by section 33.1 herein. 20)Location of site with regard to Areas of Critical Environmental Concern as designated by the Commonwealth of Massachusetts,Executive Office of Environmental Affairs. To be reviewed by the Building Commissioner Zoning District: Old King's Highway Regional Historic District: lasted in National and/or State Register of Historic Places: Perimeter setbacks: Front: Side: Rear. Lot Coverage: Type.of Use (Zoning): Flood Plain Zone: Elevation: Number of Floors: Floor Area: F"ust: Second: Other (Specify): Parking Requirements: Required: Provided: Handicapped Spaces: Are there Assessory Buildings? Accessory Building Floor Area: Please provide a brief narrative description of your proposed project. I assert that I have completed(or caused to be completed)this page, the Site Plan Review Application and the checklist at the back of the application and tha4 to the best ofmy knowledge, the information submitted here is true. Signature Date 6 l t r LEGAL DEPARTMENT, TOWN OF BARNSTABLE OFFICE OF TOWN ATTORNEY Inter-Office Memorandum September 16, 1997 TO: RALPH CROSSEN, Building Commissioner FROM: ROBERT D. SMITH, TOWN ATTORNEY RUTH J. WEIL, ASST. TOWN ATTORNEY RE: GIFFORD BROTHERS SAND & GRAVEL, INC. v. CROSSEN, Building Cmsr., etc., et al OUR FILE REF. NO.: 95-0288 ------------------------------------------------------------------------------- Per our conversation, attached please find for your file the Complaint in the above action wherein a pre-existing condition is alleged, together with the supporting affidavit made a part thereof. Thanks. RJW:cg Atchmt. [95-02881crossen1] f� p (TO PLAINTIFF'S ATTORNEY: 'PLEASE CIRCLE TYPE OF�cCTION INpOLYE17'"kCONT1tACT ` TORT MOTOR VEHICLE TORT EQUITABLE.'-RELIEF,'- ,> It r1r, .at ! TnmmuumPttlt4 of 19ttssarlYus>Pff-4 11 , 0, Ism BARS\STABLE, ss. �0.�IOYR-C6- tyT a Q idST�3LE A TRU Gifford Brothers Sand and Gravel, In Plaintiff DEPUTY SHERIFF vs. Ralph Crossen, Building Commissioner for the Town of Barnstable, and Warren J. Rutherford, Town Manager for the Town of Barnstable,. Defendants SUMMONS To the above-named defendant Ralph Crossen, Building Commissioner, Town of Barnstable, 367 Main Street, Hyannis, MA 02601 You are hereby summoned and required to serve upon. .Gregory..M.-•.Downs.................................. of Losordo, Downs & Jason plaintiff's attorney, whose address is .... .. ................. ............................ ................................. . ... . ......... . 78 Rte. 6A, P.O. Box 1637, Sandwich, MA 02563 , an answer to the ...................... ......... .................... ..................................... . complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken. against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of.the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. JOHN J. IRWIN, JR. Witness, RO ®Esquire, at Barnstal-,1c, the ...... ........... ........................................... day of ..................................................... ......... . in the year of our Lord one thousand'nine hundred and . ............................. ' 67 ac�k7 Clerk \0', When hen mere tin.n one de-e^cant is invcived, the. names of all defendants shall appear in the caption. If a seeara�e summons is issut-d for each defendant, each should be addressed to the partcslar de=endant. COMMONWEALTH OF MASSACHUSETTS Barnstable, ss. Superior Court Docket No. GIFFORD BROTHERS SAND AND GRAVEL, INC. ) Plaintiff ) V. ) COMPLAINT } RALPH. CROSSEN, Building Commissioner ' ) for the Town of Barnstable,. and-WARREN .1.. ) RUTHERFORD, Town Manager for -.the:�Tawn:_.of_ ) . .. Barnstable, -------------- Def - This is an action seeking dectaratary_re.ie .-regarding the Plaintiff's exemption from the Zoning Ordinance of ffie_fiown, of Barnstable Article XI4-1 Section. 3 "Removal of Sand' orra�rela -' e~selec � eAfQre�eegt of the, regulations`'by Defendants. 4 :'"� - - 1. The Plaintiff, Gifford BratFiers Bad 0ra�ce .a -- a m lsachusetts Corporation with a principal place of�bus�ness at � 'Asa�IfexEgg; Oad'r Sandwich, Barnstable:.Count Massacfnrsets: .. .. �.ham. The Def-endant, -Ralph Grosses j - Barnstable and- the-,-Defendant,:iia�re e- therf rig ;•• be ew a s e� €on :., __ _. the Town of. Barnstable.. The Tpwit of g$ ile _fias..au o £zc�ai= XiIing7 adre�s - ems,.of Town Clerks Office, 367 Mein 3t ,_ s fir, . - _ - .' - ';` - -:_=..o�-.� £-ax•-� � -fix- -4----�'-_�� '«.- ��r-.��c'-���`"�' -ac-�-�-.: 3. The Plaintiff operates a sand.ansf•� av pttied^atL �'n Marstons Mills, Barnstable "CauntyY sxttsre �urafeFTthe `::4. -The "Pit" -:has beew., in .eoA��uotts fi�� r� �e:Town.,°of the 1950 s: .and. is a prior,.nc>n-eon€asercitTr�n a-Fesidental d�strxct -cont fi/.Y v M•`y^". .Csr- u-'c�•i .s-F'?� _..ZS r. `. (see the Af.f idavit of.•William ford 5:: The property. on which .:sixteen. (.16):.acres,. i-s shielded` and has 'a way extending greaterthfet fs � � "Pit" with-:one entrance and oe'exi _ - ff 6 On or about March; Article XI.YI:; :Section- 3. s » a 77 No sand or graael `shalr::lie .rerei ^om= glaoe• tEx gene - within the Town of Barnstae except :that. a saa =-aatei�-:gvv�l::gZ may.be .open and used- for-,,such-,uch'-.pur-1eses-.if kt,-_is located: I66- feet _- or more from a street.*•tine! and---no more.__€han: one antr? exit, provided a per it rs firs eo Taiiied from the 7awT Manager; 4 •- .2 after a public hearing has been held as set forth in Section 1. The owner or owners of all sand and gravel pits shall burn or cart to the town dumping area all dead trees and shrubs when. any area amounting to more than 5,000 square feet becomes unsuited for further use, and in such cases the area shall be replanted with trees or shrubs to prevent soil erosion. Amended March 6, 1965. Approved March 25, 1965. Rescission of old text. Adoption of new text." 7. Section. 4 of Article. XIII (attached as Exhibit "A") provides: Thi foregoing-.ordinances shall not apply to land in: public use nor shall'ahey;applyta.ahe case :of materials. removed-,or` excavated for te grsefmproving, , Tadsun caping_,, cultivating the ground,; nor:.for construction of buildings-and. the - 's making of -pubi-i-C.pr;;pr vate.improvements..": 8. :` Dining;-the`course o.f the 4contrnuous operation of the Pit Jfr=.the•-1950`s _to, the,::prese�it:;� largequairCiE<aes;to ',sdand .gravel_have,.been-.removednom ---. place .to plaice-with-in -the Town at--Barnstable.. 9. During the .course 'of the continuous operation of the "Pit"-the Town officials� ncludingthe Buildiit pector, BeffiTth»-Enspecta�^, -.'and ptbers have visited- -the."Pit" and vzeKed; e rgr�oa3 ofz`sa • to � : place. �°. -'° SR 16: At no time has the. 'fowtro PFain trf f . . _ erest o_ er si ._ .� _ peatitspedecessors n nt 12 0n' info.rmationrand belie€ g1 es` ,. thi rd� eoQi.ng .sand ar ` b�� � ' `of Barnstable have had' any perm 12. On--information and bellef'.trxhie -.the Plaintiff' believes to be true no such per®it or for the removal of sand`,` ` has Seen-applied .Pbr or l�ssued�: ` with the awn f overrten e - . 13.. Tlie Plhinti:f presently` the t erra ° Oontra tfl�r a 'r ys i rmpi;ovement .coo `act to3 ,the1V; ;`_ ;�._ Barnsta$3e� Landf i 11 14. l�otxce .was::recently received" ti��tff the�`sv�<of�Ban�stable will .�.. _ seek to. interfere with. the ab:rl- tgy }�etP° a�itffo��pravide_ ffe- ateriaYs fob ph3b }icmrpnovement Wl 3 SeC011tl - _..'�'- -15.. may;rnerference:with -the <fa6rt .o '=tlie "fit'. to £uifr` : actu obligations. will cause'. immediate a i an gamble_: ra. anti nvt.-serve-:the public - _ interest-. _ 3 COUNT I 16. The Plaintiff repeats and realleges paragraph one (1) through fifteen (15) as if more fully set forth herein. 17. There is an actual controversy between the requirements of Section 3 of Article XIII of the Zoning Ordinances of the Town of Barnstable and the continuous non-conforming use of the "Pit" with the knowledge of the Barnstable Town Officials. 18. All parties necessary for resolution of the conflict are before the Court.. COUNT II 19. The Plaintiff repeats and realleges .paragraph one (1) through eighteen (18),. as if more fully-set forth herein. - 20. .' The Plaintiff -is providing materials, for the making of public improvements,pursuant to Section 4 of Article XIII as is therefore exempt Tfrom _ iny-enforcement of the ordinance. COUNT III 21. The Plaintiff repeats and realleges"pa�ragrap s_one�- I through twenty (20) as if more fully set forth. �hsre-in.:- ;. - 22. The Defendants are seeking-se fec£ive_e `ozcezent'`6f: the provision of -Article`XIII'$s to' the Plaintiff serve pi^ivate as''opposed to public interest. - . COUNT 23..:-.;.The '.Plainti f f. repeats and, realleges paragraphs one'(1) through twenty-two (22), as 'if more fully set forth herein. --­24; -The -Defendants'_actions will"interfere -witt the Plaintiff's use of its- propettty and:t se' immediate- and :irreparab e"`hii* to: the •conduct of A`public., improvement contract without serving y� _:leg t mate- public _interest. WH-ERF7QRE', the>'.Pl�aint.i-ff Gifford Brothers'Band. and, Gravel, Inc: . requests the following. rel:ie`f.:. A. That this Court make a binding declaration that the- Plaintiff is exempt €rom:. theF requirements:.of_*rt-icle -XI-I.F.,:'_8ect ion_3 of the Town of .Barnstable Zorririg Ordinances. as- prior. non-eoiiforming use. B. :. That this court make a binding declaration that the Plaintiff is exempt . from the requirements of Article YIII, Section 3 of the Town of Barnstable Zoning Ordinances. as it is providing materials for public improvements pursuant to Section 4 of Article XIII. 4 j C. That the Defendants be enjoined from seeking enforcement of the provisions of Article RIII, Section 3 against the Plaintiff. D. That the Plaintiff be awarded damages including but not limited to attorneys fees and costs; E. For any.additional relief the Court deems equitable. Respectfully submitted, Plaintiff by and through counsel, Gregory M. Downs, Esq. Losordo, Downs & Jason 78 Route 6A P. 0. Box 1637 Sandwich, MA 02563 (508) 888-6067 BBO #542214 v. ERHIBLT "A" 10-09-t995 tt :.44.PM FROM 50877782412 P. 1 39 ARTICLE ZIII. REXOVAL OF SOIL, SAND AND GRAVEL AND SAND PITS Section 1 . . No top soil, sub $oil, gravel, sand or other earth may be removed from the Town of Barnstable without first having obtained a permit from the Town Manager. Apermit, with conditions imposed where necessary, may be issued for the removal of top soil, sub soil, gravel, sand, and other earth if the Town Manager, after a public hearing, shall so order provided that no such permit shall be granted except upon written application and after a public hearing: of parties ----interested and consideration of their evidence by the Town Manager; notice of said hearing being given by publication of the time and place thereof in a local newspaper not less than two weeks before said hearing, the expense of publication to be borne by the petitioner. After such a hearing the Town Manager shall render a decision in writing stating the decision and the reasons therefor and file the decision with the Town Clerk and send a copy thereof to the applicant.. Such permit may be renewed. Section 2 . No top soil or sub soil shall be removed from place place within the Town of Barnstable from an area of ground consisting of more than 5000 square feet unless the person removing such top soil or sub soil shall replant the entire area of such removal with rye, vetch, wheat, legumes or other soil improving plants, or plant with a permanent cover crop or reforest the area. w ec 1^n 3. No sand or gravel shall be removed from place to place within. the .TcaZ ax 'Barnstable, except that a sand and gravel pit may be open and used for such purpose if it is located 100 feet or more from a street line and n.D more than one entry and one exit, provided a permit is first ob-'Cai:.ed from. the Town Manager, after a. public hearing has been :geld as set forth in Section 1.' The ewner or owners of all sand and gravel pits shall burn. or cart to the town dumping area all dead trees and shrubs when any area amounting to more than 5,000 square feet becomes unsuited for further use, and in such cases the area shall be replanted with trees or shrubs to prevent soil erosion. Amended March 6, 1965 . Approved March 25, 1965. Rescission of old text. Adoption of new text. Section-A . The fore-cing ordinances shall not apply to land in pudic use ra= shall they apply to the case c' materials removed or excavated .` th8 --u_-csa of improving,- g_ad_ng, landscaping, cultivating the c_:c :c, rcr fc_ cinstrsction of bulldinSs and the making of pLhlic c- I_ r _ -- --------------------------_.. _ 10-05-15 r1 _4SPM FROM S0877824T2 40 Sect y person violating the provisions of this ordinance shall be for punished by a fine not to exceed offense, one hundred ($100.00) dollars forfiftyOthe) secondroffensehandlrst two hundred ($200.00) for each subsequent offense..- Adopted May 21, 1951• Approved July 5, 1951 Amended May 18, 1976• Approved September 13, 1976. Fine amount changed. k 1 f i Town of Barnstable KM Department of Public Works 367 Main Strut, Hyannis MA 02601 Office: 508-790-6300 Fax: 508-790-6400 P.,omas J. Mullett Supaintcndent December 7, 1995 Edwin Whitworth, President 44 Gravel & Sand Inc. P.O. Box 144 t!` !&VIC ; 1KA 02355 Dear Mr. Whitworth: The Town of Barnstable has awarded to 44 Gravel s Sand, the bid for Sand Cover Materials for the Barnstable Landfill at the price of- $2.98 per ten, delivered for the period 9/25/95 thru 9/25/96. Richard Poicaro has shown me three pits which may be used as sources of material. The sieve analysis on the located off Wakeby Road in Barnstable pits Bourne and in Forestdale � Barring Pond Road in Bourne source may m require re (Landers) were all satisfactory. ' The any amount of the the screening of cobbles or boulders if p in the delivered loads. In terms Of your permits to haul out of Barnstable, the closest pit, I have no further information one way or anotheh You may proceed to install the truck scale at one of these locations, but be aware that your rights to haul ' out of Barnstable may be challenged. The contracts which both parties signed for sand cover up to 300,o0Q cubic g (copy enclosed) are . Purchase this amount is dependent upon its TheTosuitability option to gas. venting layer in closure activities and for the involvement in the closure process. the Town s Sincerely, l COMMONWEALTH OF MASSACHUSETTS Barnstable, ssJ Superior Court �--� Docket No. GIFFORD BROTHERS SAND AND GRAVEL, INC. ) Plaintiff ) V. ) RALPH CROSSEN, Building Commissioner ) for the Town of Barnstable, and WARREN J. ) RUTHERFORD, Town Manager for the Town of ) Barnstable, ) , Defendants.:.) ------- AFFIDAVIT OF :WILL.IAM F. GI"ORD' =- I, William P. Gifford being-duly sworn de pose :aad:atste - 1. I am the son of Patricia L. .Gifford--and have-personal _knov.ledge of the facts stated herein. _ 2. My father, William C. Gifford,`= myself and other members.of my_fatly. have operated the sand and gravel pit -on Wakeby..Road,.,_Marstons:=Mills, Massachusetts, presently owned in. part_.:and--run-bg_Grfford.Brothers Gravel, Inc. , of which I am Vice President:. _: - — 3. Christopher Reyes through Gifford_Brothers Sand and Gravel; Inc.:`? s:-" entitled to remove sand and gravel: the pit: - - 4. The sand and gravelhas' - _pit been owned and operated b uy fas2iy 1950's within the Town of Barnstable. : since the. 5. During the period of operation large quantitie's- of_ sand.apd g aveL have. y been removed from the pit to other Iations *it�ln t2�e t�c To of Barnstable..: - -- 6. The Town of Barnstable through Tows Official, s- xncludiggnthe gnr •y 1 - — - theInspector, Health Inspector and or_iaQe on~occas oa—w t tecE - t}re p ;emfses - and viewed the removal of sand an gFaaelr€ram-:ghee to puce. = - _.._ . .__ v d y 7. At no time have any of f icialr s'-. ormed--us o€ the-necessitg of:a permit have we ever been given notice of:any vlolation:_o town policy ar` by Iaws ate; to the present action. _ - _ 8.- During the course of the operation of the saudt and:gr�i grt` gI has also allowed third -== _parties me tiding urge cospanies.-and the=_Town of Barnstable to remove sand and grave l. €ron race lace which.third: P P_ parts on information and belief believed to..be, true, never- had:per�its:. - r 2 9. Gifford Brothers Sand and Gravel, Inc. will suffer immediate and irreparable harm if we are unable to provide the sand and gravel pursuant to a sub-contract for improvement for the Town of Barnstable who is the Awarding Authority under the public contract. Signed under the pains and penalties of perjury this 3 day of ,A/oL 1995. William P. Gifford COM KONWEALTH'AE-.kASSACMSETTS Barnstable,,. ss. Then personally appeared, the,'abov__e=aamed::.ViYiiam P. Gifford and acknowledged the foregoing instraierit 'to be�his-:fre e-act._and deed, before me, _ -- 7 - I Y � - CIVIL ACTION COVER Earnstable PLAINTIFF(S) D- Coss-n Buildinq Commission XXXer for th-e Town o' Barnstable, and Gifford Brothers Sand and Gravel, Inc. Warren J. Ruther`ord, Town Manager for. the Town of Barnstable ATTORNEY(S)FIRM NAME,ADDRESS AND TEL.) ATTORNEY(S)(if known) Gregory M. Downs, Esq. P.O. Box 1637 Losordo, Downs & Jason Sandwich, MA 02563 78 Route 6A (508) 888-6067 Board of Bar Overseers # (Required) 542214 ORIGIN CODE AND TRACK DESIGNATION Place an ® in one box only: ® 1. F01 Original Complaint ❑ 4. F04 District Ct. Appeal c231, s. 97 (X) I ❑ 2. F02 Removal to Sup. Ct. c 231, s. 104 (F) ❑ 5. F05 Reactivated after Rescript; Relief from ❑ 3. F03 Retransfer to Sup. Ct. C 231, s. 102C (X) judgment/order (Mass. R Civ. P. 60 (X) ❑ 6..E10 Summary process appeal (X) TYPE OF ACTION AND TRACK DESIGNATION See Reverse Side CODE NO. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE? D13 Declaratory Judgment (A ) ❑ Yes No 1. PLEASE GIVE A CONCISE STATEMENT OF THE FACTS: (Required in ALL Types of Actions) Plaintiff operates a sand and gravel pit which has been in operation within the Town of Barnstable for over forty (40) years. The Plaintiff is providing sand and gravel for capping of the Barnstable Landfill. The Town is selectively enforcing a permit requirement under local ordinance which is not applicable. 2. IN A CONTRACT ACTION (CODE A) OR A TORT ACTION (CODE B) STATE, WITH PARTICULARITY, MONEY DAMAGES WHICH WOULD WARRANT A REASONABLE LIKELIHOOD THAT RECOVERY WOULD EXCEED $25,000: N/A Equity Declaratory Relief 3. PLEASE IDENTIFY, BY CASE NUMBER, NAME AND DIVISION, ANY RELATED ACTION PENDING IN THE SUPERIOR COURT DEPARTMENT. NONE 1 SIGNATURE OF ATTORNEY OF RECORD OR PLAINTIFF DATE -OFFICEUSE ONLY D• NOT WRITE BELOW DISPOSITION RECEIVED .A. Judgment Entered B. No Judgment Entered BY: ❑ 1. Before jury trial or non-jury hearing ❑ 6. Transferred to District DATE El 2. During jury trial or non-jury hearing Court under G.L. c.231, DISPOSITION ENTERED ❑ 3. After jury verdict s.102C. ❑ 4. After court finding Disposition Date BY: ❑ 5. After post trial motion DATE: i 674793 NEW ENGLAND CAMERA SERVICE 459 Main Street Hyannis, Massachusetts 02601 (508) 771-8560 FILE �L..�'ER Date i LETTER .., ._.:.............: Time In Name Phone eD�� Address ` ��- Cterk city& tale LTwin Check FILM TYP ASA SIZE EXP. REPRINTS/ ENLARGEMENTS ❑COLOR PRINTS 5 mm ❑12 No.of Negatives Strips p 100 ❑110 ❑15 or Slides ❑SLIDES ❑REPRINTS ❑BLACK&WHITE U 200 ❑126 U 20 ❑5 x 7 ❑COLOR PRINTS ❑400 ❑DISC U 24 ❑8 x 10 FROM SLIDES ❑25 ❑1000 p ❑8x12 ❑SINGLE-USE ❑36 CAMERA ❑1600 ❑11 x 14 ❑ADVANCED U 40 ❑OTHER PHOTO SYSTEM ❑ ❑ I.D.# ❑OTHER PRINTS NO.OF PRICE ❑1 Each ❑2 Each PRINTS ❑Other MADE $ SPECIAL INSTRUCTIONS $ i l� G� / TOTAL a f . 1 ER �o�jR �0jR � OQPQ OQPQ 0Q� Your Pic-ol tu e s 1� � e e est MMAH� We Use 0 QP 0 QP 0 QPQ �VL O P 664130 NEW ENGLAND CAMERA SERVICE 459 Main Street Hyannis, Massachusetts 02601 (508) 771-8560 i FILE Date -z O IE �71 - -_- -.J)'l dl� �A ThneIn NamePhone T1me1)ae 12— Address C Faerk City&Sta yo�S Zip 7 i ! FILM TYPE ASA SIZE EXP. REPRINTS/ ❑25 ❑35 mm ENLARGEMENTS ❑COLOR PRINTS ❑12 No.of Negatives Strips ❑SLIDES ❑100 ❑110 ❑15 or Slides i ❑REPRINTS ❑BLACK&WHITE ❑200 ❑126 ❑20 ❑5x7 ! ❑COLOR PRINTS ❑400 ❑DISC ❑24 ❑8 x 10 FROM SLIDES ❑1000 ❑ ❑25 ❑8 x 12 ❑SINGL B-USE ❑36 CAMERA ❑11 x 14 ❑1600 ❑ADVANCED ❑40 ❑OTHER PHOTO SYSTEM ❑ ❑ LD.# ❑OTHER PRIM NO.OF PRICE ❑1 Each ❑2 Each PRINTS ❑Other MADE $ SPECIAL INSTRUCTIONS $ $ $ Tl1TAT.. CUSTOMER'S STATEMENT �LJ ODR:i;:, DATE :.i ITEM Q'"TY C AMOUNT D a $ Thank you for your Patronage. aHope our system can serve you again. Y,.�: 4 I ' P 0 QP� 0 Q�Q 0 QPQ s Your icture s dam � daw � daw � daw � P16 A.- V e eBest., 0 QP 0 QPe 0 QPQ r K daw � daw � daw � daw � 0 QP 0We Use0 QPQ Kodak . -7_ Zo 9� I i .j r 1 ' y . h �:._��,� L p� � �- • �, R _ � ) ,� �. �,�. "'+ , r/ � +�'- �r r -�i _ ' � � MINN 4 r �'.w �_, - �� fir, a; �_ < yam. _ „� .�, •� '..i . � 1 ry, 3 =w M ..\ ,./ c �' I low v t. 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Downs Phone(508)888-6067 Mom'M. Garrey Fax(508)933-2307 Jack Gillis Supervisor of Consumer Affairs Town of Barnstable P.O. Box 1637 Hyannis,Ma. 02601 . July 13, 1998 RE: Gifford Brothers Sand and Gravel//Marstons MiUs Property Dear Mr. Gillis: This will confirm our discussion of July I0, 1998 regarding the property identified above. 'As we discussed my client is seddng resolution of the ongoing conflict between Patricia Gifford, Maynard Gifford and himself over the division of the property.It appears Christopher Keyes will be purchiisirig the entire parcel"including any licenses and non-conforming uses of the property. It is Mr.Keyes wing there is available,on payment of certain back taxes,a class three license for conduct of a salvage yard at and near back buildings located on the 810 Wakeby Road property. At 810 Wakeby Road there has also been the won of a sand and gravel pit with accessory uses relative to the temporary storage and/or scanning of materials which is presently in litigation. On the property located at 800 Wakeby Road,which is known as the "house lot",there has also been the operation of"Giffords Garage",repairing and selling used vehicles. 1VIr. Keyes is presently under a consent agreement with the DEP to clean u the Property. ° P P PAY• A copy of this clean-up agreement is attached hereto for your convenience. The clean-up involves materials buried over the years by the Giffords including,brush and stumps,salvage parts, tires and other waste materials.Mr. Keyes is assuming the cost of clean-up and is speading much of his present time removing the materials pursuant to DEP regulations. As you are aware,we are presently.appealing the decision of the Board of Appeals rqprdiqg the Sand and Graved pit.We are also involved in Court with the Giffords as co-tenants 1 on the property. Attorney Sabatt and myself have authority from our clients to end the present litigation which will leave Christopher Keyes in sole possession of all the property. It is his desire not only to finish the dean-up but also to come to some agent with the Town as to ongoing uses of the property.He is aware-of the necessity to slope the pit and place some form of oil �v betoyeea the pit ark the abuttcas The ultunate:desire ofW.Keyes would be to use the'. property a4 a 'storage area for vehides and' and to try to eventually level the area by disposal of brush and stumps kUn nbmd with other non hazardous materials. In©colatige for being able to use the property for these purposes?&.Keyes would phase out the auto salvage business located at 910 Wakeby Road The present clean-up and the phasing out of the auto salvage should benefit the surrounding residents. To properly fill in the pit and/or slope the area would take a great deal of materials unless the property could be used for disposal of brush and stumps and then covered with concern for the proper screening from surrounding areas.Please consider these proposals as being made for good faith settlement purposes only. This letter and the proposals it contains may not be used in evidence at any subsequent proceeding. I hope we may resolve the matter to all parties satisfaction.Thank you for your consideration. Sincerely, Dowru cc: client .._ . __:_._ --,•-- �.- . . . . ,. . _ M. m_ gravelpit . . . ._ .. .• . . . . A. roblem . at:. `� restraining order that prevents the town and Gravel for sand over the course of one of purposes over the past fifteen years r g ' 1 II much as a warning from the foie interfering in the ongoing opera_ the contract. o upplie sl for the projectfford Bros- .Under -By. Still without so mu es said Uon,Crossen said, We have not eratin name of Gifford Broth- The manner in which a Marstom. town.-I'm a landscaper, Key reviewed the legal as of the op g Mills gravel pit has been operated in Tuesday."I haul brush to the site from oughly gressively mining the sand in new ar- as led to court different jobs and take it away when any of those issues, but will address ers Sand and Gravel,Keyes began ag- the past two:years h property, reatl ex andin at way. According to Health Director Tom eas of the p p y greatly p g P roceedings; .town. involvement'and . there's enough of a load.It's just more those at a later time:' order the pit area raised the frustration levels of the economic y His right to do so was challenged by the cease and desist neighborhood that surrounds the prop- Crossen said that'in talking with McKean, the operation from expand- erty. people who have hauled to the site he P such aswhich proper permits to operate Last Friday,Building Commissioner determined that loam screening,mix- ing into otherterials�int loam.Keyes lacked the Pic perclaimed the operation the site.He also said that in had approached the town about the and raised questions about the opera- Ralph Cossen issued a cease and de- ing and stockpiling for.future sale has cessing of ma sist order for the "new-commercial gone on at possibility of such activity,but he said tion under the areas zoning, which is use"of the property.Crossen believes a site visit last month, he toured the P y Keyes succeeded in proving the material into the site, site.with Keyes and':videotaped the he has not done anything along those strictly residential. that.transporting roe "We have sedd-all the lines. gravel pit was •a use that pre-dated , is anew use.for the property and does entire p. P '• Some history zoning and also succeeded in prevent- notconform[oche area's zoning,which uses on the site and can clearly see any `' in �e -from interfering with his is strictly residential.'The gravel'pit, new uses," and do said. operation', enjoining it as part of an • n is allowed because'it.pre-" The cease and desist has no bearing. _:� The pit operation intensified in the g suit. The town, although it • operatic on the continued operation of the sand fall of 1995. when Keyes secured a on Ongoing dates zoning'and is a.grandfathered, had adopted a by-law in the 1950s,and in use,as is the salvage removal operation.The town'is ac n contract supplier 1 erhof sand for a large pGoject g g the �.70s,'had never en- non-conform g.,. . , ally.enjoined as part of an ongoing g .as ppupdated. in .yard operation.r• with the avel- Route 44 was the low bidder for sand forced it.In fact,the-town has no regu-. _ Christopher Keyes, president of lawsuit fominterferiilg � on the town's multi-million landfill lations under which it could issue a Gifford Bros.Sand and Gravel-which pit• project. is operating the gravel pit,denies that Crossen is also not convinced of the cappingContinued on page 8 there is any new use at the pit.He said overall to theissues contained Iq,the ' $272,000 of the site.With 1 astpaid to Route 44 Sand that he has used the..site.;for simil regard -U PAGE 8 � C Cllgta Growing' p gravel. pit. . . Continued from page I lot of heatburn." "I've done a lot of research on this and In 1986287, Keyes acquired about the information is there,"McDonough gravel pit permit, .60 acres of land in the south west 'said. As a result of that case,the town is corner of Brewster known as Belmont "There's laws on the books,but no in the process of drafting procedures Park: The park had been divided in one is enforcing them;' McDonough for the ordinance already on the books. 1914 into hundreds of 2,000 square-. said. According to Assistant'Town Man- ' foot lots as part of a .promotional One of his main problems is figur- ager Mary Jacobs,the draft document . scheme by a Boston haberdasher(buy ing out who to bring action against. As currently under review by the legal a suit,buy a piece of Cape Cod):With 'The tortured history' department. Keyes has said that he deeds to these minuscule lots flung far Y would comply with the regulations and wide, the suit owners-had long It's a complex case rooted in the when written. forgotten about such real estate obli-. disintegration of one family over The draft procedures,which should gations as taxes and the like,leaving a money and land-ownership interests, be ready for public presentation within rich area for the taking for anyone but the morass goes beyond the con- the next month, focus on such things willing to settle up with the town,Which fines of such internal disputes. as remedial activities. .is precisely what Keyes did. Barnstable Superior Court Judge _ Town Attorney Robert Smith said According to'DiGregorio, in early Elizabeth Dolan noted in a decision that there is no grandfathering,provi-. 1988 Keyes started clearing the land summary, "Absent.the tortured his- . sion for general ordinances or admin using large timber'skidders without tory of this case,normal implementa- istrative procedures adopted by the • any kind of regulatory review. tion would take the form of simple .. town,which means gravel pits permit.- DiGregorio located one small area of declarative orders by the court."But ted under new regulations would be wetland on the entire parcel, which few things in this case are simple: immediately subject.to all aspects of was used to put.a stop to the•immedi- .The battle over rights and profits the law.At the same time,he said it is. ate clearing.The land,part of which is and shares in the gravel pit property, not reasonable to expect that the land now the Belmont Park affordable hous- situated on the Matstons Mills/Mash- would be returned to what it was be- : .ing project;was eventually purchased pee line, would have remained a pri- fore the gravel pit operation.The regu- by the town through eminent domain, ;vate affair had it not been for the way lations talk about re.vegetating and sta- with the proceeds going to Keyes. in which Christopher Keyes,president bilizing,not restoration. In a'Jan. 15, 1988 Cape Codder of Gifford Bros. Sand'and Gravel, Town licensing agent Jack Gillis . article, officials from the towns of elected to run his operation: Starting said that within the current ordinance, Brewster,Dennis and Harwich specu- two years ago,the excavation of sand the town manager would have the abil- laced on two possible motives for went from a casual,family business to ity to impose restrictions of his own Keyes'action:profit or vengeance for' a full-blown mining operation under for the operation of gravel pits. Ac- an earlier planning board denial for the direction of Keyes.The,extent of cording to Gillis;the townhas identi- land use.. the sand removal,more than 100,000 fied four working pits in town and will The vengeance theory is again be- tons, worried neighbors and raised' '• be calling the owners of each in for ing bandied about by those abutting questions within town hall over the review when the procedures are in the Gifford Bros.property. use of the property. place. Frustrated Neighbors Ownership of the land is the crux of While Keyes has reportedly ap= h the problem and the crux of the legal proached owners of adjoining parcels It was the intensification of the pit argument for the Gifford family,who about possible purchases, he cannot activities,-which brought the opera-, live on Wakeby Road directly adjoin expand the gravel pit use beyond the tion right to the backyards of the abut- ing the gravel pit. existing property. The non-conform ting neighborhood,that starting draw Up until the death of William ing status applies only to the lot in . ing complaints from residents. Gifford, Sr. there were three owners.: question and expansion beyond those Neighbors who have complained to of the property, William; his brother boundaries is prohibited. Keyes de the town, and.to Keyes himself, be- Maynard and his sister Priscilla, al- nies looking into other.properties.for lieve that their actions have prompted though there is some dispute on the purchase. reprisals from the gravel pit operators. last. Keyes was also successful in stop- When James McDonough raised During William Gifford, Sr.'s life- ping court action by the Giffords to questions with the town about the ex- time, the property was used as a sal-'- halt the work until the ownership ques- pansion of the pit,within the next few vage yard and gravel pit, one of the tions were settled:The parties went to weeks all of the trees near his property family's primary sources of income. court twice and both times it was the were cleared.and stacked along his The issues that cloud any clear path.,' Giffords who were ordered not to.in- property line."The nearest tree is 2,000 to resolution began after the death of terfere. feet away across the canygr:," V!Mia- Gifford in iyyi. His wife,.' Since the contract with Route 44 McDonough said,referring to the bowl- Patricia Gifford, was advised by her,' Sand and Gravel ended not much has shaped crater of the pit. attorney at the time,Jim Stathopoulos; gone out of the pit,but it has been far The move that neighbors view as not to apply to the Probate and Family from quiet. Keyes has cleared new the greatest slap was the installation Court for disposition of the estate.Al- access roads along the perimeter, of a three-strand barbed wire fence though William Gifford left no will,it stripped and stockpiled much of the around the entire perimeter of the prop- was Stathopoulos' opinion that there remaining topsoil, and, according to erty.In a March interview,Keyes said was not enough value in the estate to . the town's zoning enforcement offic- that the fence was requested by the make those proceedings worthwhile. . ers,is hauling material from elsewhere town and was an attempt to keep people ' Patricia Gifford took the advice,but into the pit for future use. off the property. He said his concern has since regretted that decision. Back taxes on the property amount , was for liability purposes,as the slough- Probate action would have clarified to some$17,600 with interest and pen- .`'ing walls of the sand pit can be dan* all of the ownership interests in the ' alties. At the end of March,Town of gerous,especially to curious children. land, assigning percentage.shares of Barnstable Treasurer Waldo Fraser McDonough is increasingly frus- William Gifford's interest in the land. started foreclosure proceedings for non- trated at his situation.He believes the Without the benefit of such court ac- payment. response from the town has been inad- lion, the estate is divided using state Taxes are outstanding for the years equate and the response from Keyes prescribed percentages for the imme= 199.0296,which are the subject of the vindictive. diate heirs. tax title action.There remains another "He was out there clearing on Eas- Adding to Patricia Gifford's frus-. $2,600 for the current year's taxes. ter Sunday morning,"McDonough said tration over the probate decision, Deeper history with exasperation. Stathopoulos soon went to work for McDonough is planning some legal Keyes.Shortly thereafter,Keyes started Several towns have had similarfegu- action of his own, although he does buying interests in the property.. latory dealings with Keyes. not wantto be specific at this point.He While William Gifford,Sr.was still Mario DiGregorio, former cover- did indicate that the property's history alive, the family leased a portion of vation administrator for the town of is more interesting than the town,the_ the property to Christopher Keyes for Brewster,recalled Keyes"giving me a Giffords or Keyes makes it out to be. equipment storage.After a period o`" . ble' MAY 15, 1997 patriot i ; a. ems= t zY b �s�y. At SFbz�� 3 L lvs ri Lw lSy �, at„ryJ Ssr} r a J ts°�1 r p s �y` r rsTf r •'J atty� � Y�' sMaV� , t 5 � � •S a i.t�j���L. r 7�k a Jq - �.yp � ft Yam' z �y r bAVID STILL 0 PHOTO ALTERED VIEWS—This three-strand barbed wire fence delineates the boundaries between the Marston Mills gravel. pit operated by Christopher Keyes and the residential neighborhood that abuts it. non-payment,the Giffords attempted At the same time,Keyes,using the The dispute between Bortolotti and to remove Keyes, who remained on power of attorney granted to him by Keyes centers on the amount of ma- the property. After the death of-the. Priscilla Gifford,wants an accounting terial Bortolotti was removing.While to ke elder.William Gifford, Keyes' in= . of any of the profits.off the property BortolotPatriciatttif soyd was'account ntgnton.the• volvement in the land grew:He had since 1967. struck a friendship with William P. . According to Judge Dolan's-sum- amount,Keyes wanted weigh-in-slips, .' Gifford, who was living with his mary,"The taking of soil by any of the eventually enjoining Bortolotti in a mother.at the time. William Jr. was .tenants in common triggers in a duty restraining order with the Giffords handed the reins of the family "sal- to account to the remaining tenants in from interfering with the operation ' vage yard and gravel pit business, common for profits derived from a of the pit. which his'mother claims he floun- source of common ownership. In the It was this income that Patricia ack dered at, putting the family in debt same respect,expenses must be shared. • axesGiffo`She is now in to pdef default fo pay the r not for non-payment of.bills and poor in a similar manner." a ravel pit administration of the business. Dolan ordered both sides to produce only the g property,but also. Keyes' friendship with William the relevant accounting records, but:• her home. ets even more complex. Au eventually led to the formation of neither side has done so. g Gifford Bros. Sand and Gravel, with Patricia Gifford Keyesews this as to delay ablock- th edtci that assigns signaturesty of the oe`thi d the Christopher Keyes appointed presi- ing y dent and William Gifford vice presi- tion of the more recent proceeds.frorn in the land to Priscilla,Gifford have dent. i the Route 44 Sand%.and Gravel con- also been brought into question. At tract: the time there was an ongoing legal Keyes located,with the help of the Regarding the back taxes,the obli- proceeding that created ill-will and younger Gifford,Priscilla Gifford in' I ation to a falls with all of the own- an adversarial position within the fam= to a deed on file g pay any- at a rd her Col orado.According would.we give h y . at the Barnstable, Registry, she be ers,which means the default of one is ily. .Why o g came one-third owner of the 16 acre:-:-.equivalent to the default of all.Patricia thing at this time when all that was parcel with her brother William Sr..,. Gifford had worked out a payment going into Patricia Gifford asked in a and Maynard Gifford in 1967.Keyes schedule with the town,but has since recent interview. bought her interest for $40,000. He fallen behind becausb her main source In separate affidavits on file in the also purchased rights from some of of income has been cut off. Barnstable Superior Court, both the estranged children of Patricia Keyes has denied access to Bortolotti Maynard and Patricia Gifford claim Gifford,who gained ownership rights Construction, which head an arrange- no recollection of the deed and deem after their father's death.Patricia and` ment with Patricia Gifford to buy sand. the signatures of William, Sr. and , Maynard Gifford 'question the legal- Bortolotti had been renting part of the Maynard to be forgeries. ity of these purchases since the estate property for equipment storage and Keyes did not want to comment on ll,but regular,use of had never been settled through Pro- was making sma any of the issues relating to the ongo- bate and Family Court. Keyes now the sand,paying$1.20 per ton. ing suits. claims 48 percent ownership in the land. In addition to the ownership rights, Keyes was also given power of actor ney by Priscilla to recover one-third of the proceeds derived.from the use of the property since 1967. Priscilla Gifford, according to. Patricia and Maynard Gifford,as well as her own affidavit on file at the courthouse, , had nothing to do with the property{: during any part of that time. She did not participate in the management,; nor did she assist in the payment.,of i taxes. omp]a�nt�Number: 1187aken by Malone .pate 5/4/98-- 013 052 . Referre`�d..to Pe Business/®ccupant htame Gifford Gravel Pit vm a �" 800� Street Wakeb Road R ; Villa-gee' Marstons Mills CO1VIgPI:�INT 01 $ ®RIVII®1�1 �Compl'aman't''s�Name: Mary Burkinshaw Address Mockingbird Lane, Marstons Mills TelephoneNumber 428-3204 � ,Complam�tDes�c ption She said a large hole was dug at the gravel pit " yesterday and today a Fred Earle Oil truck was dumping oil into the hole. She also said there was a fire at the pit a week or so ago and that the Mashpee Fire Department had responded. fictions T a"lcen/itesults Bldg. inspector to do site visit. Health Inspector Dunning was notified. Lt. MacNeely, C-O-MM Fire Dept. also notified. He said there was a fire and that Mashpee had responded as well as C-O-MM. Brush was being burned without a permit. � ate ClosedE: MEMORANDUM TOWN ATTORNEY'S OFFICE TO: James Tinsley, Town Manager, Mary Jacobs, Assistant Town Manager, Zoning Board of�peals, Thomas Geiler, Director of HSES, Jack Gillis, Licensing Agent,-Ralph Crossen, Building Co sioner FROM: Ruth J. Weil, Assistant Town Attorney RE: Gifford Brothers Sand& Gravel, Inc. Issuance of Preliminary Injunction Our File Ref: 98-0036 DATE: October 26, 1998 Attached please find a copy of an Interlocutory Order on Preliminary Injunction issued to Gifford Brothers Sand and Gravel, Inc. If you have any questions, please do not hesitate to contact me. Thank you. RJW/tmc intermem flummottur att# of lRttssar4uspus BARNSTABLE, ss. SUPERIOR COURT. No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC. . VS. ZONING BOARD OF APPEALS, TOWN OF BARNSTABLE INTERLOCUTORY ORDER ON PRELIMINARY INJUNCTION This action came on to be further heard at this sittingf upon the return of an order of notice to show cause why the application fora preliminary injunction should not be granted, and was argued by counsel; and thereupon, upon co id0eration thereof, it is ORDERED and ADJUDGED that upon payment to the clerk of sum of;$190 the application under the .................... mo.ti. .on �] { yP} is hereby granted, and .. .. . n......................................................................... the defendants ax.e—seeking.... ...the...town..,of Barnstable zoning....... .................... ,ord .Hance...pg,a nst...the...plaintiff......G fford Brothers Sand and Gravel, Inc. , which is enjoined and restrained from ...e.nga,g ng...in...act vit,ies other.. than...those ..... awfully...permitted...at.. the...premises located at 810 Wakebx Road, Barnstable, (Marstons Mills) , Barnstable County, Massachusetts, ........................................................................................................................................................................................ ...............................................................................................:......................................................................................... ............................................................................................. ............................................................................................ .......................................................................................................................................................................................... ......................................................................................................................................................................................... ........................................................................................... .... ........................................................................................ . ......................................................................................................................................................................................... ......................................................................................................................................................................................... ............................................................................................. ........................................................................................... .......................................................................................................................................................................................... until further order of Court. By the Court, ( O'Neill, J.) Entered ... ctober....2.2.►................... 19 98 ................. Clerk. A try opy, Attest Clerk f MEMORANDUM TOWN ATTORNEY'S OFFICE TO: James Tinsley, Town Manager, Mary Jacobs, Assistant Town Manager, Zoning Board of Appeals, Thomas Geiler, Director of HSES, Jack Gillis, Licensing Agent, Ralph Crossen, Building Co sioner FROM: Ruth J. Weil, Assistant Town Attorney RE: Gifford Brothers Sand & Gravel, Inc. Issuance of Preliminary Injunction Our File Ref: 98-0036 DATE: October 26, 1998 Attached please find a copy of an Interlocutory Order on Preliminary Injunction issued to Gifford Brothers Sand and Gravel, Inc. If you have any questions, please do not hesitate to contact me. Thank you. RJW/tmc intermem a .a' f�umm�orn�uettlt� of �tt�ttttrl�xt�ri�s SUPERIOR COURT. BARNSTABLE, ss. No. 9 8-8 7 GIFFORD BROTHERS SAND AND GRAVEL, INC. VS. ZONING BOARD OF APPEALS, TOWN OF BARNSTABLE INTERLOCUTORY ORDER ON PRELIMINARY INJUNCTION of an er of This action came on to be further heard at this sitting upon show should not be grant d, notice to show cause why the application for a preliminary injuncho and was argued by counsel; and thereupon, upon co *d0eration thereof, it is ORDERED and ADJUDGED that upon payment to the clerk of sum of*180 the application under the ................ . . mot ion......................................................................... xX R]Qkt�exooxr� is hereby granted, and inct axe...s.eek.�..z�g... Q e QrGe 't ford Brot ers.. Sana and Gravel, Inc. the defendantsGi f•.•.............. .or.dinance...against...the...plantff,,•..,... . which .e.ngagng... n.,,activities,..other...than._those i s enjoined and restrained from • lawfully ermitted at the premise.......located at 810 Wakebx Roa , y...p................... . Massachusetts , . .................. Marstons Mills) , Barnstable County, ................ Barnstable,...... . ................................................... until further order of Court. By the Court , ( O'Neill, J.) 4-91r 98 / /, .. .................. Clerk. Entered ..Octobe,r....22.,................... 19 c/�' A try ,opy, Attest Clerk `.`�� /��- � ���,� � i �4 G��c,���1., C7� � {' 1 G,,O��� y 1. w TOWN OF BARNSTABLE, ) AFFIDAVIT OF RALPH CROSSEN Plaintiff ) V. ) GIFFORD BROTHERS ) SAND AND GRAVEL ) Defendant ) I, RALPH M. CROSSEN,being duly sworn depose and say: 1) My name is Ralph Crossen and I am employed as Building Commissioner of the Town of Barnstable. I have been employed as such since August of,1994. 2) Chris Keyes is owner of a business operating at 810 Wakeby Rd., Marstons Mills. This business is known as Gifford Brothers Sand and Gravel. 3) Several cease and desists were sent to Mr. Keyes (5-9-97 and 10-22-97)which demanded he stop all uses except the one granted by virtue of a variance in the 1960s: salvage yard. 4) In December of 1997 Mr. Keyes went to the Zoning Board of Appeals on the use of the property. A question was raised as to the legal status of any of the operations on site. 5) The ZBA continued the hearing after the owner and his attorney agreed not to work beyond a line drawn on a map in the custody of the Planning Dept. This map restricted work to sand and gravel work several,hundred feet from a row of single-family homes to the rear. g980722a 6) This agreement also said they would not do any items listed in the cease and desist letters referred to above. These new uses were listed in the 10-22-97 as processing of wood waste, processing of fill, screening of fill, depositing of fill, brush, clippings or any other similar uses. 7) On April 14, 1998 I visited the site of this operation with Jack Gillis from Consumer Affairs and Tom McKean of the Health Division based on complaints. At that time Mr. Keyes was working in the yard on an excavator. 8) I witnessed a moderate-sized loam processing operation on site in violation of his agreement with the Zoning Board of Appeals. There was a loam screener at one location on site, a front-end loader mining old buried stumps and loam, a truck transporting the loam to the screener, a back hoe sending the material through the screener, and large piles of product in various stages of processing. 9) Mr. Keyes maintained that he had not done any work in the pit beyond where he was not supposed to go; however, it appeared that some erosion from the York property (abutter land)had started to cause a problem on one side of the pit, beyond this agreed upon line. 10) I pointed out the obvious problems with the use of the property, and Mr. Keyes said, "Let's let the court decide. Take me to court: Let's get it on..". 11) Additional uses observed to be ongoing on site including a junk operation, with several hundred junked cars scattered around the site, and the sand and gravel excavating business which is evidenced by the large pit to the rear of the property. 12) On or about the first week of July, I went to the site with Jack Gillis to view the uses in operation. I observed many fewer junk autos, a large excavation area, a loam g980722a processing operation and associated machinery. The pit area showed a stockpiling of different gravels, manures, and loams; many appeared to have been brought in from off site. Nobody was at the site at all when we drove through. 13) On July 20, 1998, I chartered a plane and conducted a flyover in order to photograph the current uses on site. I was accompanied by Jack Gillis and Frank Schlegel from Engineering. We circled the site several times and took extensive photos of the site. 14) The photos reveal an expanding loam-processing operation continuing in violation of the ZBA agreement of 12-10-97. It further reveals work continuing beyond-the agreed upon line, such line believed to be one to protect the neighbors to the rear from further excavation into the bank below them. 15) Mr. Keyes has said to me as well as to other employees of mine that he intends to continue to work in violation of my cease and desist orders. In spite of numerous calls to my office from neighbors and our insistence that he stop while the court case is pending as he agreed to as far as several uses are concerned,he continues to ignore our orders. 16) We support a restraining order to stop all uses as agreed to in December of 1997 at this time. g980722a r r- i � : . The Town of Barnstable KAM Department of Health Safety and Environmental Services Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner May 9, 1997 Harriet Hayward,Trustee and William Gifford 800 Wakeby Road Marstons Mills,MA 02648 Re: Use of 810 Wakeby Road,Marstons Mills,MA by Christopher P.Keyes Map/parcel 013/052 Dear Property Owners: You are hereby ordered to CEASE AND DESIST the new commercial use of your property involving the transport of wood waste materials to your site and the processing of it. In a residential district,this sort of use is only allowed after a variance from the Zoning Board of Appeals. If you would like to pursue this course of action,we will be glad to help you. Until then,though,you must discontinue all such activity immediately. Sincerely, Ralph M.Crossen _ Building Commissioner Ka hleen Maloney, Notary Public My commission expires 2/26/2004 RMC/km DELIVERED IN HAND received by date Q970509A of TMe r _ Department of Health Safety and Environmental Services Building Division BARNSTAI= f 367 Main Street,Hyannis MA 02601 163¢ �0 Off -1 A Ralph Crossen Fax: aus-/yu-oLsu Building Commissioner CEASE AND DESIST October 22, 1997 Harriet Hayward,Trustee and William Gifford 800 Wakeby Road Marstons Mills,MA 02648 Re: 810 Wakeby Road,Marstons Mills,MA Map/parcel 013/052 Dear Property owners: I am in receipt of the attached request for zoning enforcement. Upon investigation,I have determined that the use of your property for a gravel pit,processing of fill,the screening of fill,depositing of fill,brush and clippings or any other similar use is in violation of Barnstable zoning section 3-1.4. These uses must immediately CEASE AND DESIST. Our records reflect that, from a zoning standpoint,you have a special permit for a salvage yard. This use is in addition to the residential use that has always been in effect there. Any other uses than these two(i.e.salvage and residential)have no preexisting non-conforming status and must end. In response to the above referenced request,I also reviewed an affidavit previously submitted by William Gifford. I do not find it presents specific evidence based upon personal knowledge that establishes a gravel pit operation of the nature currently being conducted that began before zoning. You have the right to appeal this decision. If you so choose,we will be more than happy to assist you. If we do not hear from you, and these unlawful uses continue,we will be forced to seek civil or criminal action against you. Sincerely, L Ralph M. Crossen Building Commissioner RMC/km cc: Attorney J. Douglas Murphy Attorney Gregory M. Downs Attorney Charles Sabatt Robert Smith,Town Attorney Christopher Keyes enclosure DELIVERED IN HAND P Received by Date TOWN OF BARNSTABLE - ZONING BOARD OF APPEALS Excerpts from the minutes of December 10, 1997 as related to Appeal Number 1997-133 Appeal Number 1997-133 Gifford Brothers Sand and Gravel Board Members hearing this appeal were Ron Jansson,Gene Burman,Gail Nightingale,Elizabeth Nilsson;and Chairman Emmett Glynn. Attorney Gregory M.Downs represented the applicant. Gene Burman declared that he is working with an associate of Attorney Downs in an unrelated business matter which no way affects this hearing. Mr. Burman said he would step down if anyone felt there might be a conflict or an appearance of a conflict. Both the Board Members and Attorney Downs agreed that this disclosure would not constitute a conflict. Attorney Downs submitted a memorandum to the Board and explained that the property is presently in litigation between co-tenants. The property in issue is part of an estate. The Cease and Desist from the Building Commissioner is addressed to a Trustee of one of the co-tenants. Mr. Downs represents the Gifford Brothers who are the primarily users of the sand and gravel pit. He submitted deeds to support standing before the Board. Attorney Downs gave a brief history of the property. The sand and gravel pit has been in use since the 1950s. In 1964 a Variance(No. 1964-41)was granted for an auto salvage yard. In that decision is the statement"...the location in which the petitioner proposes to locate his business is in a gravel pit near Wakeby Road in Marstons Mills..." This confirms that the gravel pit was there since at least 1964. That decision also discusses screening of the pit. Mr. Downs reported that the subject property was used by the Town in 1995. At that time,it was used to help with the capping of the landfill in which the Town took materials from this pit to the landfill. In 1995,there was some question of use and there was litigation with the Town,but nothing has been determined by that litigation-as of yet-although there was an order from the Courts preventing the Town from interfering with the Gifford Brothers' taking of gravel and sand from the subject property. Attorney Downs listed the affidavits in his memorandum which are from William Gifford;Maynard Gifford;Patricia Gifford;and Bortolotti Construction,Inc. They all state that the operation was in existence since the 1950s. Bortolotti Construction has used the property for the last ten years. Attorney Downs gave this information to support the continuous use of the sand and gravel pit. At this time the Board asked Attorney Downs to establish the pre-existing nonconforming use that pre-dates zoning or any zoning changes in that area. Attorney Downs replied that the sand and gravel pit use predates zoning in the 1950s. In his opinion,that has been established by affidavits of the owners. Also,Mr.Downs referred to a letter dated March 13, 1996 to[Town Attorney]Bob Smith from [Building Commissioner]Ralph Crossen which states, "Please be advised that the Gifford Gravel pit on Wakeby Road is a pre-existing non-conforming use,and as such is lawful from a zoning perspective. In arriving at this conclusion,we talked to several people with early roots in the area,and interviewed the owner. No information was received to the contrary." This establishes the use as a pre- existing non-conforming use-a sand and gravel pit. The Board explained to Attorney Downs that it is the responsibility of the Zoning Board of Appeal(as opposed to the Building Commissioner)to determine whether or not the use as a gravel pit is a legally,continuing,pre-existing nonconforming use. It is the petitioner's responsibility to establish that there is a legal,pre-existing nonconforming use,and that the use was not surrendered/abandoned. Attorney Downs referred the Board to the affidavit of Patricia Gifford,which testifies about the use by her husband(William)in the 1950s-specifically,paragraphs #11 #12 and #14 of her affidavit. However,the Board asked for more specific information. Attorney Downs stated he is relying on the affidavits of the co-tenants. Attorney Downs said it was his understanding that the Building Commissioner has the burden-of-proof to establish if the use was abandoned or was not a prior nonconforming use,especially since the Building Commissioner already stated(in the March 13, 1996 letter)that it is nonconforming. Included in the memorandum to the Board is a draft enforcement order from the DEP[Department of Environmental Protection]which states that at the February 21, 1997 site inspection,"....the materials appeared to be stockpiled from previous operations with no active acceptance of any new materials." There is an enforcement order from the DEP on the Gifford Brothers to continue to excavate those materials. The Board clarified that it is not the Town's responsibility to establish the nonconforming use-it is the petitioner's responsibility. The petitioner is appealing the decision of the Building Commissioner,and the petitioner must establish the use dates back to before zoning in the area. Attorney Downs replied that he has been trying to gather that information and may need to request a continuance of this hearing to allow him time to look for that data. Attorney Downs indicated that his client has been involved in litigation and a stipulation came down that the only thing Gifford Brothers Sand and Gravel had to do was file for a permit with the Town Administrator-which they did. Again,the Board stressed that since the petitioner is contending that the use which is the subject of the Cease and Desist Order is a legal pre-exiting nonconforming use-they must prove it. They must establish that the use is legal and has not been abandoned. If more time is needed,then the Board would consider a continuance. Attorney Downs stated that his client is relying on Ralph Crossen and[former Building Commissioner]Joe DaLuz both of whom say it is a pre-existing nonconforming use. In March 1996,Ralph Crossen stated it was a legal use,and Attorney Downs said he has not been given any information,or additional evidence from Mr.Crossen to show why that does not still hold true. If Mr.Crossen is now changing his statement,Mr.Downs does not know why. Ron Jansson questioned whether or not they need to have information regarding the past litigation. Perhaps the Town Attorney should inform the Board of any agreement with the Town and the Petitioner. Attorney Downs clarified that the litigation is still on-going and they do not have any definitive agreement. Chairman Emmett Glynn asked Attorney Downs about a continuance. Attorney Downs stated that he does have "leads"to people who may be able to testify about the early use of the property,but that would require time. Since the letter from the Building Commissioner was mentioned several times,the Board asked Mr.Crossen to address that letter. Mr. Crossen stated that the letter was an internal memo based on a question asked of him having to do with the application of a general bylaw regarding the removal of sand and gravel. Mr.Crossen explained that he feels there are two separate issues involved here. The first issue is the required permit to remove sand and gravel. The second issue is zoning. The memo had to do with the first issue and the capping of the landfill. When Mr. Crossen wrote the memo,there was no zoning challenge. Because there was no official zoning challenge,he did not do any zoning research. Mr.Crossen does not consider the letter an administrative decision,but rather an opinion. Since the writing of that memo,there have been two zoning challenges on the subject property. The first challenge resulted in a Cease and Desist Letter dated May 9, 1997. The second challenge was on September 15, 1997,which resulted in a complete Cease and Desist issued by letter dated October 22, 1997. Chairman Emmett Glynn asked the Building Commissioner what the March 13, 1996 letter was based upon. Chairman Glynn also asked Mr.Crossen why he considered it a lawful use from a zoning perspective eighteen months ago and now does not-what additional information does the Building Commissioner now have. The Building Commissioner replied that in May there was a complaint about noise and late night activity from wood chipping and reprocessing being conducted on site. He visited the site and saw a screener,piles of fill that had been brought in,and brush from off-site. Basically,a loam and screening processing operation. That was the fast Cease and Desist Letter of May 9, 1997. On September 15, 1997,there was a complaint about the entire operation, including the sand and gravel operation. That was the first time Mr. Crossen looked into the entire operation-up to that point he had not done any investigation of the operation. He looked into town records,aerial photos,zoning information,and tax information. From a review of information gathered,he issued the Cease and Desist Letter of October 22, 1997. The Building Commissioner is allowing the operation to continue while this is before the Zoning Board as they wait for a determination. If it becomes a dangerous situation,then he will seek a restraining order. Town Attorney Robert Smith spoke next. He also stated that the burden-of-proof is on the landowner. It is the burden of the applicant to establish the legal,pre-existing nonconforming use. A statement and/or permit from the Building Commissioner is governed by Chapter 40A,Section 8. When a Building Commissioner makes a mistake, the burden is still on the applicant. In this case,the applicant must establish the pre-existing nonconforming use and if they can't-then there is none. They must also show the use has not been abandoned and that the current operations are within the parameters of the allowed use. 2 i The Board was concerned with the fact that the operations at the site were still continuing and would continue during the time waiting for the continuance. They asked the Petitioner if he would come to some type of agreement regarding the use of the site. Attorney Downs replied that they are under a DEP Consent Enforcement Order requiring them to remove some of the materials from the site. Mr.Downs stated that the operation has been on-going the entire time they have been in Court. Right now is a"slow time"for the operation. However,they are under the DEP Order and must do that work. Plus,they need to do some work to survive[financially]. Attorney Downs stated that just recently fill had been brought onto the site when they"hit"ground water. The Building Commissioner showed the Board aerial photographs of the site. The photos from 1964 to 1968 do not show much of a difference,but the 1995 photo shows how much of the area was"carved out"for the capping of the landfill. He showed how close the work is to the abutters' property and how steep the bank has gotten. The operation may have encroached onto neighboring lots. Mr.Crossen also showed a video of the area taken this day(12/10/97). The angle of repose should be 2 to 1,but it is much less than that. That could pose a problem to the property owners on the hill. There is also a concern for the wells,and septic systems in the area. There is an extremely important need to do something about the bank,and he has told the owners/petitioner. That is why there is a need for a proper site plan review. There needs to be a plan put in place. Chairman Emmett Glynn called for a brief recess to allow the Building Commissioner,the Town Attorney and Attorney Downs to discuss the site. After the recess,the Building Commissioner explained that a"line"has been drawn on the aerial photograph/map and it has been agreed upon by the applicant that until the Zoning Board of Appeal's continuance is heard,he will not work beyond the line they have agreed upon. They will work on the DEP work order only. They can remove gravel from within the circle on the map,but can not work outside the area. This will not affect any of the abutter's properties. There will be no hauling and no screening. They can remove gravel from within inside the circle but they can not bring any materials onto the site. The Board asked for the agreement to be put into writing. Town Attorney Smith explained that the aerial photograph has been marked,and although the marking is not exact there is no ambiguity. Mr. Smith felt that it is sufficient for enforcement purposes. Attorney Downs stated his client is in agreement with the conditions imposed tonight. He stressed that the DEP Consent Order must be carried out,but it is very specific. Gene Burman asked about the safety of the houses on the bank and asked for the locations of the wells and septic systems on the adjacent properties. Ralph Crossen stated he will get that information for the Board. FOR THE RECORD: It is the understanding of the Zoning Board of Appeals,the Building Commissioner,and the Town Attorney that the [Zoning]Board is willing to continue this appeal [Appeal Number 1997-1331 until a date certain[to be chosen tonight]and during the interim: The applicant/petitioner -Gifford Brothers Sand and Gravel: • will refrain from doing any work,whatsoever,outside the agreed upon"line"as shown on the aerial photograph entitled:"Town of Barnstable Geographic Information System Unit-Aerial Photograph taken on April 10, 1995, File:gravel.dgn.jab 12-9-97,approximate scale 1 inch=80 feet." [Mr. Smith outlined the specific area] • will be allowed to do excavation-mining of sand and gravel-inside the circled area[as outlined by Mr. Smith]. • will be allowed to work in compliance with a Consent Order in terms of a removal of old junk automobiles buried in the area[as outlined by Mr.Smith]. • will refrain from doing anything that was contained in the Cease and Desist Order from the Building Commissioner dated October 22, 1997. Specifically,processing of fill,the screening of fill,depositing of fill, brush and clippings or any other similar uses. 3 FOR THE RECORD: Attorney Down stated his client accedes to the conditions as imposed. Attorney Douglas Murphy told the Board that he represents some of the abutters and/or neighbors. They are very concerned for their children and anxious for the appeal to go forward. He asked if the area could be staked out and photographs taken so that everyone will be able to see the area in question. ` Chairman Emmett Glynn agreed with the request and asked Attorney Downs if the applicant could mark the area and asked the Building Commissioner along with the Engineering Department to verify the demarcation of the area. This should be done as soon as possible. Attorney Downs stated it will be"done by the end of the week"and the Building Commissioner stated he will go out"the first of the week"to verify the markings. Public Comment:No public comment will be taken at this time. Public Comment will be allowed at the continuance. The Board and Engineer Robert Weaver agreed that the DEP Order is within the area that the applicant is allowed to work during this continuance period. ! Barbara LaFlam addressed the Board. She is a direct abutter to the west of the site. She believes work is being done by the applicant over her property line. The Building Commissioner reviewed the"line"and stated that no work will be done near her property line during the continuance,and more information will be presented at the later date. MOTION: Ron Jansson A motion was made to continue Appeal Number 1997-133 to January 14, 1998 at 7:30 PM. Seconded by Gail Nightingale VOTE: AYE: Ron Jansson,Gene Burman,Gail Nightingale,Elizabeth Nilsson,and Chairman Emmett Glynn NAY: None Appeal Number 1997-133 is continued to January 14,1998 at 7:30 PM. 4 Crossen Ralph To: Crossen Ralph Subject: Notes, Gifford Bros. 1. My name is Ralph Crossen and I am employed as Building Commissioner of the Town Of Barnstable. I have been employed as such since August of 1994. 2. Chris Keyes is owner of a business operating at 810 Wakeby Rd., in Marstons Mills. This business is known as Gifford Brother's Sand and Gravel. 3. Several cease and desists were sent to Mr. Keyes (5-9-97 and 10-22-97)which demanded he stop all uses except the one granted by virtue of a variance in the 1960s; salvage yard. 4. In December of 1997 Mr Keyes went to the Zoning Board of Appeals on the use of the property. A question was raised as to the legal status of any of the operations on site. 5. The ZBA continued the hearing after the owner and his attorney agreed to not work beyond a line drawn on a map in the custody of the Planning Dept. This map restricted work to sand and gravel work several hundred feet from a row of single family homes to the rear. 6. This agreement also said they would not do any items listed in the cease and decist letters referred to above. These new uses were listed in the.10-22-97 as processing of wood waste, processing of fill, screening of fill, depositing of fill, brush, clippings or any other similar uses. t 7. On April 14, 1998 1 visited the site of this operation with Jack Gillis from Consumer affairs and Tom McKean of the Health Division based on complaints. At that time Mr. Keyes was working in the yard on an excavator. 8. 1 witnessed a moderate sized loam processing operation on site in violation of his agreement with the Zoning Board of Appeals. There was a loam screener at one location on site, a front end loader mining old buried stumps and loam, a truck transporting the loam to the screener, a back hoe sending the material through the screener, and large piles of product in various stages of processing. 9. Mr. Keyes maintained that he had not done any work in the pit beyond where he was not supposed to go, however it appeared that some erosion from the York property (abutter land) had started to cause a problem on one side of the pit, beyond this agreed upon line. 10. 1 pointed out the obvious problems with the use of the property, and Mr. Keyes said, "Let's let the court decide, Take me to court; Let's get it on..". 11. Additional uses observed to be ongoing on site included a junk operation with several hundred junked cars scattered around the site, and the sand and gravel excavating business which is evidenced by the large pit to the rear of the property. 12. On or about the first week of July I went to the site with Jack Gillis to view the uses in operation. I observed much fewer junk autos, a large excavation area, a loam processing operation, and associated machinery. The pit area showed a stockpiling of different gravels, manures, and loams many appeared to have been brought in from offsite. Nobody was at the site at all when we drove through. 13. On July 20, 1998 1 chartered a plane and conducted a flyover in order to photograph the current uses on site. I was accompanied by Jack Gillis and Frank Schagel from Engineering. We circled the site several times and took extensive photos of the site. 14. The photos reveal an expanding loam processing operation continuing in violation of the ZBA agreement of 12-10-97. It further reveals work continuing beyond the agreed upon line; such line believed to be one to protect the neighbors to the rear from further excavation into the bank below them. 15. Mr. Keyes has said to me as well as to other employees of mine that he intends to continue to work in violation of my cease and desist orders. In spite of numerous calls to my office from neighbors and our insistence that he stop while the court case is pending as he agreed to as far as several uses are concerned, he continues to ignore our orders. 16. We support a restraining order to stop all uses as agreed to in December of 1997 at this time. Page 1 r UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS BARNSTABLE, ss: Civil Action No. 97 CV 12531 GAO PAUL P. FLYNN and SANDRA M. FLYNN, AFFIDAVIT OF RALPH CROSSEN. Plaintiffs, V. I EUGENE BURMAN, RON S. JANSSON, EMMETT F. GLYNN, RICHARD L. BOY ) and GAIL NIGHTINGALE, as Members of ) the Town of Barnstable Zoning Board of ) Appeals, and THE TOWN OF ) BARNSTABLE, ) Defendants. ) I, RALPH K CROSSEN, being duly sworn depose and say: 1) 1 have full knowledge of the facts stated herein and am competent to testify to these facts. 2) 1 am the Building Commissioner for the Town of Barnstable. I have been employed by the Town of Barnstable for approximately four (4) years. 3) In my capacity as Building Commissioner for the Town of Barnstable, in late.1995 or early 1996, 1 became aware that the owner of a radio transmission tower located at 749 Oak Street, West Barnstable, Massachusetts was interested in replacing the existing tower. 4) In the course of my discussions with Mr. Paul Flynn's attorney, I raised questions concerning the height of the existing tower. In response to my questions, Mr. Flynn's attorney provided me with an analysis of the height, as originally permitted in 1969, at 220 feet and the sequence of events that Mr. [99-00901ralph3] 1 r Flynn's attorney asserted led to the increase of the height of the tower to.388 feet. (See letter from Myer Singer, Esq. to Ralph Crossen, dated March 21, 1996, attached hereto as Exhibit 1). 5) 1 responded by letter dated March 25, 1996 stating that based on the information provided, I did not see the basis for the authorization of use above 220 feet and advised Mr. Flynn to seek a determination from the Zoning Board of Appeals. I enclosed two applications, one a form appealing the decision of the Building Commissioner, the other for a special permit. (See letter attached hereto as Exhibit 2). 6) No appeal was filed by Mr. Flynn within thirty days of the receipt of i my decision. 7) In June of 1996, 1 was visited by Mr. Flynn alleging that a catastrophe had occurred in the form of damage to the tower by contractors who were undertaking work on the tower. The work was being undertaken without the benefit of a building permit or permits of any kind. 8) 1 asked Mr. Flynn to provide me with documentation from an engineer as to the.exigent nature of the emergency. Based upon the information provided by the engineer, I issued an emergency permit, allowing Mr. Flynn to reconstruct a replacement tower to its current height. To be candid, when I issued the emergency permit, I was focused on the alleged imminent emergency and not upon the issue of the height of the tower. 9) After the issuance of the emergency building permit, I received further information concerning the unauthorized expansion of the height of the [99-0090/ralph3] 2 r tower. Based upon this information, I sent Mr. Flynn's attorney a letter dated September 30,1996, stating that the tower could be rebuilt but not used above 220 feet. (See letter attached as Exhibit 3). 10) In January, 1997, the Barnstable County Assembly of Delegates adopted a regulation which required the referral of any transmission towers above 35 feet to the Cape Cod Commission, the regional land use regulatory agency, for review as a Development of Regional Impact (DRI). Under the Cape Cod Commission Act, all municipal permitting must be suspended upon referral to the Commission. 11) By letter dated January 3, 1997, 1 notified Mr. Flynn that based on the fact that three Cases were then pending before the Zoning Board of Appeals regarding a proposed reconstruction of the tower to a height of 431 feet, the Town was required to suspend all permitting activity. (The pending actions before the Zoning Board of Appeals on January 3, 1997 were an appeal of the Building Commissioner's decision of September 30, 1996, a petition for a variance, and an application for a special permit). I also notified Mr. Flynn that the previously issued building permit was rescinded. However, relying on the previous documentation provided by Mr. Flynn concerning the emergency, I encouraged Mr. Flynn to file an immediate application for a new building permit to reconstruct the tower to a height of 220 feet. I also requested that Mr. Flynn provide me documentation concerning the structural integrity of the existing tower. (See copy of letter attached as Exhibit 4). [99-0090/ralph3) 3 12) By letter dated January. 17, 1997, addressed to Mr. Flynn's attorney, I advised Mr. Flynn's attorney that my action in rescinding the previously-issued building permit was based on a number of reasons, including the fact that there was no evidence of a legal status above 220 feet. (Attached hereto as Exhibit 5). Mr. Flynn appealed my decision to revoke the building permit to the Zoning Board of Appeals. 13) Upon the advice of counsel for the Cape Cod Commission, the Zoning Board of Appeals was permitted to proceed with the two appeals of the decision of the Building Commissioner, which first amended and then revoked the emergency building permit issued in June, 1996. 14) After'separate hearings held on said appeals, the Zoning Board of Appeals voted to uphold the decisions of the Building Commissioner in both instances. 15) In the course of the hearings before the Zoning Board of Appeals involving the appeal of my decisions concerning the 1996 emergency building permit, additional information was brought forward by Mr. Flynn concerning the many different users of the tower. This evidence has raised serious questions in my mind as to whether or not the current use is in compliance with the special permit issued by the Zoning Board of Appeals in 1969 which was exclusively a radio tower, which was an accessory use to a radio station located in Hyannis. 'in light of recent cases on the illegal expansion of non-conforming uses, I believe there is a strong argument that the actions of Mr. Flynn and previous property- [99-0090/ralph3] 4 1 owners have resulted in the loss of the tower as a pre-existing non-conforming use. 16) With regard to the subject locus located at 749 Oak Street, West Barnstable, I have reviewed the records of the Barnstable Building Department to ascertain what, if any records, are in existence regarding the applications for building permits for the subject locus. I found an application for a building permit dated June 23, 1970. The application was a permit to construct and build a tower, on Appeal #1969-53. The type of construction was "Wood Frame Building and 215 foot Steel Tower." The application contains a sketch indicating that the height of the tower was to be 215 feet (attested copy of building permit application attached hereto as Exhibit 6 and the building permit as Exhibit 7). There are no other applications for building permits for the locus on file until the emergency application filed by Mr. Flynn on June 28, 1996. 17) The history of the tower, which was only permitted as a 220-foot accessory tower to a radio station, has been one of total disregard for applicable zoning and other laws. It cannot be overemphasized that the work undertaken in June, 1996, which precipitated the damage that creates the current need for emergency repairs, was undertaken by the Flynns without obtaining the required building permit and occurred after I had raised questions about the legality of the tower's height and use. 18) Under 780 CMR 111.1, the so-called state building code, a building official is permitted to reject an application for a building permit which does not conform to the requirement of 780 CMR "...and all pertinent laws under the [99-00901ralph3] 5 i building official's jurisdiction." It has been my experience that the State Board of Building Regulations has consistently.interpreted this provision to allow a building commissioner to reject an application for a building permit that does not conform with zoning. 19) Under G.L. c. 40A, §7, certain protections may pertain to work undertaken in accordance with the terms of a valid building permit. _�.. 20) As noted above, the decision of the Zoning Board of Appeals which upheld my interpretation concerning the illegal use of the tower, is currently on appeal in the Land Court. It has been the policy and practice of my office, in most instances, not to seek injunctive relief under G.L. c. 40A, §7 to enjoin uses which the Zoning Board of Appeals has agreed are illegal, while such cases are under appeal. In essence, I have allowed property-owners to maintain the status quo while their cases were awaiting court adjudication. However, under no circumstances would I allow or sanction the increase or expansion of a use or structure during the pendency of an appeal which I have determined is illegal because it fails to conform with zoning. 21) Consistent with the approach I have taken in other matters, I have allowed the Flynns to maintain the status quo by allowing the existing uses on the tower, in addition to the only allowed use under the 1969 special permit, that being a radio transmission tower, accessory to WQRC to a height of 220 feet, to continue to exist. 22) In reviewing the most recent application of Paul Flynn for an emergency building permit to repair the tower, I did so with the understanding [99-00901ralph3l 6 that he must not add any other users to the tower. Any new uses would be required to go through a permitting path of their own. 23) 1 have reviewed the portions of my deposition excerpted by the Flynns, and I believe that my testimony is perfectly consistent with the position I have taken with regard to the issuance of the emergency building permit. At the deposition, I essentially indicated that I would allow the Flynns to undertake emergency repairs and I would not interfere with the existing uses above 220 feet, even though I believe that those uses are illegal. I was never asked during the course of the deposition whether I would allow the Flynns to increase and/or expand the illegal uses, probably because that question is so absurd. By the plaintiff, Paul Flynn's own admission, he is only being constrained currently from further expanding the illegality by the fact that the current tower is not strong enough to carry additional users or appliances. Mr. Flynn's affidavit bespeaks his intention to expand the already illegal uses on the tower once the repairs are completed. 24) As previously noted, this current emergency was the product of the owners of the tower once again undertaking work without the proper permits. I am flabbergasted that the Flynns have asserted in their complaint that they are entitled to put new uses on the tower, something I cannot allow on this emergency permit. The actions of the Flynns in trying to continue to capitalize on their illegal actions and those of their predecessors in title have seriously jeopardized my ability to enforce zoning throughout the town of Barnstable. Why would any citizen of the town agree to conform their uses to those permitted by [99-00901ralph3j 7 i zoning, particularly in a residential zoning district, when so many greater economic benefits can be gained through the violation of zoning and through claims that the town's efforts to halt the expansion of the illegality amounts to a civil rights violation? In my opinion, the position advocated by the Flynns will cause extreme prejudice and irreparable harm to the public interest. I 25) 1 will issue the requested building permit as long as the Flynns simply agree to continue to maintain the status quo by not further increasing the illegality of the tower and by agreeing that the repairs are undertaken at their own peril should a court determine that the current tower height and uses are illegal. Absent such an agreement, I stand by my order that the tower is unsafe and must, therefore, be taken down. Signed under the pains and penalties of perjury this 2n' day of July, 1998. Ralph M. Crossen, Building Commissioner Town of Barnstable [99-0090/rafph3] 8 I I Town of Barnstable Department of Health, Safety, and Environmental Services Consumer Affairs Division oFI„E tp1Y 230 South Street, P.O. Box 2430 Hyannis, MA 02601 Office: 508-862-4672 BARNSTABM ; Fax: 508-778-2412 Mass. 9qj 1639. A Jack Gillis, Supervisor TO: Thomas F. Geiler,Director Health, Safety,and Environmental Services FROM: Jack Gillis,Licensing Agent RE: July 9, 1998 Phone Call From Chris Keyes DATE: July 21, 1998 On July 9, 1998 I received a phone call from Chris Keyes in regards to the property at 800 Wakeby Road, Marstons Mills. Mr. Keyes asked if I would take a ride out to the sand'pit and observe what he is now doing at that location and to hear his ideas on future use. I stated I would and would be out there on Friday, July 10, 1998 at approximately 11:00 AM. On Friday, July 11, 19981 arrived at 800 Wakeby Road, Marstons Mills. I drove on.a dirt path off Wakeby Road. This path went northerly into the property commonly referred to as the Gifford Sand Pit. I observed in the area approximately 100 feet in off Wakeby Road a number of vehicles in what appeared to be poor condition. I did not observe any current license plates on these vehicles. In the same area,there was a frame for a green house. Beyond that, further north, were several trailers (work style) in poor condition. Further in there was a (3) sided area constructed of large cement blocks. There was landscaping mulch in that area. I drove deeper into the property and observed a large pile of horse manure. This was located at the base of the sand pit. There was also a very large pile of sand. I then drove back to the area of the trailers. At this point, I observed Mr. Keyes in his truck. I got out of my truck and got into his. Mr. Keyes stated he wanted to show me around the area to explain what he is now doing and what he would like to do in the future. Mr. Keyes showed me the area that he was mixing. It was a mixture of wood loam, stumps, old tires and parts of metal. Mr. Keyes stated he would dig, then transport to a shacker machine and separate the debris from the loam. Mr. Keyes also stated he wanted to use a section of his property for agricultural use. The area would be at the end of the property to the left, backing up to the Sandwich line. Mr. Keyes also said he wanted to buy Mrs. Gifford out and take over the property. In doing so, he would pay the taxes and be looking to have the class III license issued JG/Ifl jhandpit/wakebyldoc J I to him. Furthermore he stated he would turn in the license in hopes that the town would let him run a composting operation and also bring in material to fill the pit area. After approximately 1 hour and 30 minutes I left to return to Town Hall. JG/Ifl j/sandpidwakebyldoc To Date Time LE YO WERE OUT M of Phone, Area Code Number Extension TELEPHONED PLEASE CALL CALLED TO SEE YOU WILL CALLAGAIN WANTS TO SEE YOU URGENT RETURNED YOUR CALL Message 9 Operator AMPAD 23-021-200 SETS x �j EFFICIENCYe 23-421-400SETS CARBONLESS � ��i , '��! i `i � i �- � � � � jay �; � i,i I / �� � �� � ,� r lv--- LEGAL DEPARTMENT, TOWN OF BARNSTABLE OFFICE OF TOWN ATTORNEY Inter-Office Memorandum March 19, 1998. TO: RALPH CROSSEN, Building Commissioner / FROM: ROBERT D. SMITH, Town Attorney RE: YOUR REQUEST FOR OPINION IN THE MATTER OF: GIFFORD SAND & GRAVEL OUR FILE REF. NO.: 98-0036 -----------------------L------------------------------------------------------- This is in response to your office's request (copy attached) for an opinion in the above matter. Yes, I do believe there should definitely be documentation of everything. Please be aware though, that they have filed an appeal from the ZBA Decision and we will need to confer about what we would restrain (operations on York, probably, YES; other probably, NO). trust this is responsive to your request, but please feel free to be in touch. With thanks. . ' RDS:cg [98-00361ralphmm1] i The Town of Barnstable maNHABm MAS& Department of Health Safety and Environmental Services t63q �0 �rF039. to Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner TO: Robert D.Smith,Town Attorney FROM: Ralph Crossen,Building Commissioner REGARDING: Gifford Sand and Gravel DATE: February 19, 1998 According to my staff,Mr.Keyes called in yesterday to say he has decided not to comply with us at all and will do what he wants to at the site. I presume he intends to re-start gravel removal and other activities he is under an order not to do. I think we should document,and go for a restraining order,what do you think? cc:Tom Geiler,Director Consumer Affairs g980219a FEB2 � I LEGAL DEPARTMENT, TOWN OF BARNSTABLE INTEIR-40FFICE Heinforain4i in Date: May 13, 1998. TO: ZLPH CROSSEN, Building Commissioner TO: JACK GILLIS, Consumer Affairs FROM: ROBERT D. SMITH, Town Attorney r ' RUTH J. WEIL, Asst. Town Attorney RE: Summary of Meeting 5/13/98 Regarding the Gifford Gravel Pit Our File Ref: #98-0036- -------------------------------------------------------------------------------------------------------- We are writing to confirm our understanding as to "the next step" regarding the above. You both agreed to prepare a detailed narrative as to the factual basis for the assertion that Christopher Keyes is conducting operations on the locus which violate zoning. We cannot simply "rest" on the Zoning Board of Appeals decision in this regard; we will have to support any request for injunctive relief with an affidavit based on personal knowledge which demonstrates that his operation is not a protected non-conformity but is in violation of zoning. The narrative should also include what activities you have observed recently on the premises that you believe are violative of zoning. We need to support the assertions with any available documentary evidence, such as aerial photographs and the like. We welcome an opportunity to discuss this further at your convenience. RDS/RJW:cg [98-0036/confinem] 1 Town of Barnstable Planning Department Staff Report Appeal No. 1997-133 - Gifford Brothers Sand &Gravel Appeal of the Building Commissioner Date: December 05, 1997 To: Zoning Board of Appeals From: Approved By: Robert P. Schernig, Director Reviewed By: Art Traczyk Principal Planner Applicant:.......................................Gifford Brothers Sand &Gravel Property Address..........................810 Wakeby Road, Marstons Mills, MA i Assessor's Map/Parcel.................013 - 052 Area.............................................. 16.66 acres.....................Building Area: .................................--sq.ft. Zoning:...........................................RF Residential F Zoning District Groundwater Overlay....................GP-Groundwater Protection Overlay District Filed:Oct.20, 1997 Hearing:Nov. 19, 1997 Decision Due:Jan.28, 1998 Background & History: The property that is the subject of this appeal is a 16.66 acre lot located off Race lane at the boundary of the Town with Sandwich. This lot has had a history before the Board dating back to 1961. In Appeal No. 196141,William G. Gifford & Kenneth J. Barthel requested and were denied the ability to utilize the lot for the storage of used cars and used parts-a salvage yard. In the Boards decision on this request, it was cited that"Part of the area had been used as a sand pit" and that"there has been considerable dumping of brush and other debris on an a *oining_parcel." Again Appeal No. 1964-18, L. Thatcher Gifford requested a use variance to permit the parcel to be utilized -for the"salvage of vehicles and storage of used parts". That appeal was granted with four conditions as follows: 1. That the use of the land in the new location be restricted entirely to that area behind the screen of trees. 2. That only one building may be constructed for the use in connection with the salvage yard and such building must be located behind the screen of trees. 3. No trees are to be removed. 4. That the present location at Santuit be completely cleared of all materials within a reasonable time. In the granting of this use variance, it should be noted that the decision cited that the location is in a gravel pit and that the operations would be located"about 1,000 feet from the road and is located in a hollow with a screen of trees surrounding the front part of the lot." It should also be noted that this relief was a use variance and not a special permit for a non-conforming situation. Then in 1969, in Appeal No. 1969-17,William Gifford&Maynard Gifford sought and were granted a Special Permit for the extension of a non-conforming use by the removal of an existing building and construction of a new 30' by 30' building to include the sale of used auto parts and second hand vehicles., Within the amended decision, reference was made to the 1964 grant of a Use Variance. (No. 1964-18). r Town of Barnstable-Planning Department-Staff Report Appeal No. 1997-133 - Gifford Brothers Sand&Gravel Appeal of the Building Commissioner Again it was cited that the salvage yard operations"would be located in the middle of the parcel surrounded by woods on three sides and the power line on the back." The restriction imposed in the amended decision read as follows; "...construction of a building to be used for the storage and sale of used auto parts and second hand vehicles to William Gifford, Maynard Gifford and Kenneth Borthel (tenant), to be restricted to that period of time during which the petitioners or the Tenant retain ownership of the present 16 acres parcel.' Staffs impressions of this relief is that it was, in reality, a modification of the Use Variance issued in 1964 and not an expansion of a non-conforming use because the use being granted appears to be related only to the salvage yard use and not the gravel pit use - if that use was indeed still occurring on site. Then in 1973, a Special Permit(Appeal No. 1973-5)was requested and was granted with conditions to permit a home occupation and service use(Section 1-6(b))on the site. That permit was to allow William Gifford and his brother to operate a snow plowing business in the winter and a bulldozing business in the summer and to construct a garage for the equipment. In the application for this permit, under#7 State the present use of the premises was listed"Single Dwelling". No mention of the gravel operations was cited in this 1973 permit. Zoning Relief Requested: Today the applicant-Gifford Brother Sand &Gravel Inc. is before the Board, appealing the decision of the Building Commissioner in accordance with MGL Chapter 40A, Section 8. They are appealing the October 22, 1997, issuance of a Cease and Desist order of the Building Commissioner(see attachment-October 22, 1997 Building Commissioner letter). In that letter, the Building Commissioner informed the applicant"that the use of the property for a gravel pit, processing of fill, screening of fill, brushes and clippings or any similar use is in violation of Barnstable Zoning Section 3-1.4-[Principal Permitted Uses in the RF Zoning District]." copies: Attorney for the Applicant-Gregory M.Downs Building Commissioner LOSORDO & DOWNS Attorneys at Law 78 Route 6A OCT I9 �' i P.O.Box 1637 Benjamin I Losordo 2 j Sandwich, MA 02563 Gregory M. Downs ` I Phone(508) 888-6067 Mary M. Gaffney Tet�t�'cF[� :,,;,�; ! Fax(508) 833-2307 ".,^ Board of Appeals Town of Barnstable 367 Main Street Hyannis, Ma. 02601 October 24, 1997 RE: Appeal of Cease and Desist Order 810 Wakeby Road, Marstons Mills Certified Return Receipt Dear Members of the Board: Pursuant to MGL. Chapter 40A section 8 Gifford Brothers Inc., as a record owner of the above identified property and as a party"aggrieved"by the issuance of the Order to Cease and Desist on October 22, 1997 hereby appeals said Order. Please note as the Order was given to a Harriet Haywood as an alleged Trustee of the property and the action of the Town is subject to the Restrictive Order of the Barnstable Superior Court preventing interference from the ongoing operation, this appeal is made under a reservation of any rights to pursue further action in the appropriate jurisdiction if necessary. Gifford Brothers Inc. does, however, understand the necessity of attempting to cooperate with the Town and with the abutters to the property to address any particular problems and questions The basis of the appeal is the nonconforming nature of the operation of the gravel pit as outlined in the attached letter to the Building Commissioner. Please advise this office of any additional information requested. Sincerely, A/� M. Downs g�l�d enclosure cc: Ralph Crossen Town Counsel Attorney Murphy -- Attorney Sabatt `+ ThE. Town of Barnstabl oFVF'w�.o Department of Health Safety and Environmental Services Building Division t � 367 Main Street,Hyannis MA 02601 -_ MAM 1639• �0 Off Ralph Crossen Fax: wu-NU-o2su Building Commissioner CEASE AND DESIST October 12, 1997 Harriet Hayward,Trustee and William Gifford ' 800 Wakeby Road Marston Mills,MA 02648 ' Re: 810 Wakeby Road,Marstons Mills,MA Map/parcel 013/052 Dear Property owners: I am in receipt of the attached request for zoning enforcement. Upon investigation,I have determined that the use of your property for a gravel pit,processing of fill,the screening of fill,depositing of fill,brush and clippings or any other similar use is in violation of Barnstable zoning section 3-1.4. These uses must immediately CEASE AND DESIST. Our records-reflect that,from a zoning standpoint,you have a special permit for a salvage yard. This use is in addition to the residential use that has always been in effect there. Any other uses than these two(i.e.salvage and residential)have no preexisting non-conforming status and must end. In response to the above referenced request,I also reviewed an affidavit previously submitted by William Gifford. I do not find it presents specific evidence based upon personal knowledge that establishes a gravel pit operation of the nature currently being conducted that began before zoning. You have the right to appeal this decision. If you so choose,we will be more than happy to assist you. If we do not hear from you,and these unlawful uses continue,we will be forced to seek civil or criminal action against you. . Sincerely, _ Ralph M.Crossen Building Commissioner RMC/km cc: Attorney J.Douglas Murphy Attorney Gregory M.Down Attorney Charles Sabatt - Robert Smith,Town Attorney Christopher Keyes enclosure DELIVERED IN HAND Received by , T_ _ Date THE Z NG RELW BM(;80UGHT e TOWN OF BARNSTABLE BEEN llt MI zoning Board of Appeals ENFORCEME CER By THE To ZONING Application 'for=.Other Powers EEAPPROPRIATERE�FG r , CIRCUMSTANCES. N THGS:. Date Received 7 For office sr.. ' j3 l Town Clerk office Appeal # Cl " Hearing Date I" Decision Due -Z The undersigned hereby applies to the Zoning Board of Appeals for the reasons indicated: Applicant Name: Gifford Brothers Sand & Gravel Phone 888-6067 Applicant Address: c/o Gregory M Downs Egg PO Bnx 1617, Sanrl,.rirh_MA Q2563__ Property Locations 810 Wakeby Road, Marstons Mills This is a request for: [ ] Enforcement Action [ ] Appeal of Administrative Officials Decision [ ] Repetitive Petitions ] Appeal from the zoning Administrator [ ] Other General Powers - Please Specify: Please Provide the Following Information (as applicable): Property owners Gifford Brothers Sand & Gravel Patricia , Phone (508) 888-6067 Gifford, aynard Gifford, Beth Linell Address of owner: If applicant differs from owner, state nature of interest: Gifford Brothers is a tenant in common with thli_othPr proverty owners, Assessors Map/Parcel Number zoning District Groundwater Overlay District which Section(s) of the zoning Ordinance and/or of MGL Chapter 40A are you appealing -to the zoning Board of Appeals? Chapter 40A, Section 8 Existing Level of Development .of the Property - Number of Buildings:* Present Use(s) : sand and grnual pit Gross Floor Area: N/A sq.,. ft. # The order relates to the operation of a gravel piton the property. _Application for Other Powers Nature 6 Description of Request: Appeal from Order to Cease and, it es- operation of gravel pit- based on Drior non-conforminR o er Attached separate sheet .if needed. Is the property located in an Historic District? Yee [j No If yea ORA Use Only• [g Plan Review Number Date Approved Is the building a designated Historic Landmark? If' es Historic Yes [] No [g Y c Preservation Department Use Onl : Date Approved Has a building permit been applied for? Has the Building Inspector refused a permit? Yes No [� Has the property been before site Plan Review? Yes [) No [� Yes [] No [� For Building Department Use only: Not Required - single Family [] Site Plan Review Number Date Approved Signature: The following information must be submitted with the application at the time of filing, failure to supply this may result in a denial of your requests Three (3) copies of the completed application form, each with original signatures. Three (3) copies of all attachments as may be required for standing before the Board and for clear understandingof your appeal. The applicant may submit any additional supporting documents to assist the Board in making its determination. • signatures Dates App1 ant o Agent's Signature: Agent s Address s /'� Phone: } Fax No. 0 3 U LOSORDO & DOWNS Attorneys at Law 78 Route 6A P.O.Box 1637 Benjamin J. Losordo Sandwich, MA 02563 Gregory M. Downs Phone (508) 888-6067 Mary M. Gaffney Fax(508) 833-2307 October 24, 1997 Ralph M. Crossen Building Commissioner ' Town of Barnstable 367 Main Street Hyannis, MA 62601 RE: 810 Wakeby Road Dear Mr. Crossen: Please note the recent cease and desist order dated October 22, 1997 is addressed to individuals which to my knowledge are not record owners of the subject property. Perhaps Patricia Gifford , Maynard or Beth LinnelI have transferred interest since the Superior Court litigation was commenced. I assume you also mean to include Gifford Brothers Sand and Gravel -Inc. who is also a record owner of the parcel. Because the cease and desist order directly affects Gifford Brothers an appeal of the order will be filed on it's behalf. I apologize for not providing information earlier. We have in fact been in the process of the.taking of several depositions relative to the ownership and use of the property. The Town is also involved in litigation in Barnstable Superior Court docket 95-922 which involved the prior nonconforming use and the filing for a.permit. Pursuant to an agreement between the parties the Town continued to*allow the ongoing operation and Gifford Brothers made timely application for a permit under-a reservation of rights in early 1996. Evidence.presented in the letter dated September 11, 1997 from Attorney Murphy actually supports the prior use of the property as a gravel pit although the language he selects from the proceedings in 1964 would seem to indicate otherwise..In particular I would point to the language _ At page 2 line 3 of the 1964 decision which states"(t)he location in which the petitioner proposes. to locate his business is in a gravel pit near Wakeby Road in Marstons Mills." Discussion by Attorney Murphy of the large area and the screening ignores the fact the Board already knew and had viewed the operation of the pit. The"gully and trees referred to in the decision still appear on the portion of the property on which the out building and the salvage yard exist. Lorenzo Gifford and his son William E.;Gifford in fact operated the pit in the early 1950's. This fact is further. supported by the affidavit and deposition testimony of Patricia Gifford (William's wife) and j operators and users of the yard over the years. The operation of the pit included screening, trucking and storage of materials. The Town actually tested the materials and agreed to take the sand and gravel from the site for use at the Town Landfill. The previous Building Commissioner should also be able to verify to you the continued use of the property over the years. When you and I discussed the operation of the business this last Spring you were concerned with the"transport of wood waste" but made no indication in your cease and desist order dated May 9, 1997 of any other portion of the operation. It appears Mr. and Mrs. McDonough purchased property abutting,-an,existing gravel pit and salvage yard. No complaint was made during all the years Mr. Robert Bortolotti was processing, storing, loading and transporting materials from the site nor during the prior periods when Lorenzo and William were operating the site. Again I apologize for not responding to your requests and those of Town Counsel earlier. Please let me know how you wish to proceed. As the appeal will be taken and the Superior Court action remains outstanding the business will continue to operate.Certainly any alleged harm to the abutters is outweighed by the survival of the business on the property which supports several people and has been recognized by the Town over the years. Please note that while the contempt proceeding against the Town was withdrawn on the agreement to apply for the permit under a reservation of rights; the Order of the Court dated July 2, 096 restraining the Town from interfering with the operation of the business remains in effect (see attached Order). Sincerely, Gre o M. Downs gd/lmd _. cc: Town Counsel Attorney Murphy Attorney Sabatt Client The Town of Barnstable �SME Tp� tia Department of Health Safety and Environmental Services Building Division 1 BABNEMABUM& ' 367 Main Street,Hyannis MA 02601 y Mnss. $ rb3� .0 Off.. AtEp � Ralph Crossen Fax: wa=iyu-btsu Building Commissioner CEASE AND DESIST October 22, 1997 Harriet Hayward,Trustee and William Gifford 800 Wakeby Road Marstons Mills,MA 02648 Re: 810 Wakeby Road,Marstons Mills,MA Map/parcel 013/052 Dear Property owners: I am in receipt of the attached request for zoning enforcement. Upon investigation,I have determined that the use of your property for a gravel pit,processing of fill,the screening of fill,depositing of fill,brush and clippings or any other similar use is in violation of Barnstable zoning section 3-1.4. These uses must immediately CEASE AND DESIST. a Our records-reflect that, from a zoning standpoint,you have a special permit for a salvage yard. This use is in addition to the residential use that has always been in effect there. Any other uses than these two(i.e.salvage and residential)have no preexisting non-conforming status and must end. In response to the above referenced request,I also reviewed an affidavit previously submitted by William Gifford. I do not find it presents specific evidence based upon personal knowledge that establishes a gravel pit operation of the nature currently being conducted that began before zoning. You have the right to appeal this decision. If you so choose,we will be more than happy to assist you. If we do not hear from you, and these unlawful uses continue,we will be forced to seek civil or criminal action against you. Sincerely, i Ralph M.Crossen Building Commissioner RMC/km cc: Attorney J. Douglas Murphy Attorney Gregory M.Downs Attorney Charles Sabatt • Robert Smith,Town Attorney Christopher Keyes enclosure DELIVERED IN HAND . Received by Date TYPE OF 0N INVOLVED: TORT LEASE CIRCLE (TO PLAINTIFF'S A'1 fO11Ni Y: MOTOR VEHICLE TORT CONTI A1CT EQUITABLE RELIEF OTHER COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. �.d SUPERIOR COURT NO. 95-922 GIFFORD BROTHERS SAND AND GRAVEL, � @YE COPY ATTESTF ; vs. DEPUTY SHERIFF BUILDING COMMISSIONER FOR THE TOWN OF BARNSTABLE et al K RESTRAINING ORDER • j , To the above-named defendant You are hereby summoned and required to serve upon .Gregory M. Downs, Esq. . ........................................... ... plaintiff's attoney, whose address is Losordo g Downs 1 ..P......0..... Box..1637 ...Sandwich,, Massachuse..tsnn 02563 to the complaint which y•� herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judg- ment by default will be taken against you for the relief demanded in the complaint. You are also re- quired to file your answer to the complaint in the office of the 'Clerk of this Court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. WE ALSO NOTIFY YOU that application has been made in said action, as appears in the com- plaint, for a preliminary injunction and that a henring upon such application will be held at the Barn ......... in the Count of .....Barnstabl..e. , Courthouse at .................. s ...........table.......................... Y .......................... in the first session without jury of our said Court on.....Friday..................the.......ttwe,lfth................ , day of ......July A. D. 19 96 at ... 2 .0�.. o'clock}a4C} at which you may appear and show cause why such application should not be granted. In the meantime, until such hearing,WE COMMAND YOU, BUILDING COMMISSIONER FOR THE TOWN OF BARNSTABLE AND TOWN MANAGER FOR THE TOWN OF BARNSTABLE ; i . i and your agents, attorneys, and counsellors, and each and every one of them to desist and refrain from interfering with the operation of plaintiff, Gifford Brothers Sand and Gravel, Inc. 's,. business, located at 44 Asa Me:iggs. Road, Sandwich, Barnstable County, Massachusetts. IT IS FURTHER UItDERED"that said * defendants and your agents, attorneys, and counsellors, and each and and every one of them to desist and refrain from interfering with the removal of materials for use by 44 Gravel and Sand, Inc. , pursuant to public contract with the Town of Barnstable Witness, ROBERT A. MULLIGAN. . . ............................. Esquire,at Barnstable, ................................................ the ..second..........................:......:......................... day of ..........Ju.1Y..................................................... l,t tl�e year of our Lord one thousand nine hundred and ninety-six at 2:20 P v '�C Clerk NOTE: When more than one defendant is involved, a names of all defendants s appear in the caption. If a separate summons is used for each defendant, each should be addri ssed to the particular defendant. *NOTICE TO DEFENDANT You need not appear personally in Court to answer the complaint but if you claim to have , a defense, either you or your attorney must serve a copy of your written answer within erk's office. 20 days as specified herein and also file the original in the Cl . I . : The Town of Barnstabl • .�aNer�is. • e 9q� 1 ���' Department of Health Safety and Environmental Services D Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner May 9, 1997 Harriet Hayward,Trustee and William Gifford 800 Wakeby Road Marstons Mills,MA 02648 Re: Use of 810 Wakeby Road,Marstons Mills,MA by Christopher P. Keyes Map/parcel 013/052 Dear Property Owners: You are hereby ordered to CEASE AND DESIST the new commercial use of your property involving the transport of wood waste materials to your site and the processing of it. In a residential district,this sort of use is only allowed after a variance from the Zoning Board of Appeals. If you would like to pursue this course of action,we will be glad to help you. Until then,though,you must ' -discontinue all such activity immediately. Sincerely, Ralph M. Crossen Building Commissioner Ka hleen Maloney, Notary Public My commission expires 2/26/2004 RMC/km y DELIVE RED IN HAND received by date Q970509A i TOWN OF BARNSTABLE ' I Board of Appeals Petitioner PP 19db�19 ' A eal No. ' 64 FACTS and DECISION Petitioner L, filed petition on Ttb 1 t requesting a variance:pM= for premises at in the g ,gx g MA-1- villa e of ZZ® adjoining premises o Z. TInhh A am OQ1 D@ atlol_t�onl, rg,� 1 � 1 _d, Jae. PI�d t� k Actti� R. rf lli.m� hba-m-t T. I1s14�1E�� 8�{ A� �Y.� for the purpose of '' PMRdnee for Q pan" of W1,ia4ont A OtOM90 of urod part ------------- Locus is presently zoned in Pesidento DI Notice of this hearing was given by mail, postage prepaid, to all persons deemed affected and by publishing in Cape Cod Standard Times, a daily newspaper published in Town of Barnstable a !opy of which is attached to the record of these proceedings filed with Town Clerk. A public hearing (® b y the Board of Appeals of the Town of Barnstable was held at the Town )lice BuBding H re , Hyannis, Mass., at 3 t15 ?! P.M. April 23rd �I o. _ cPon said petition under zoning by-laws. Present at the hearing were the following members. fA Chairman =. ?UM. I At the conclusion of the hearing, the Board took said petition under i advisement. A view of the locus was had by the Board. On ...................................................................................... 19......... the Board of Appeals found Thatcl-Ar Gifford, tics Petitioner, Was reprosonted by Joseph Doechers Rsq. Mr ,ocher stated that the petitimer 'wag Goolzing a tariance to moves an existing itomobilo parts salvage busineas to a new location. Tho location in which tba 3titioner proposos to locate his busine a© is in a gr.Tavol pig nour Wakeby Road i Marstons mills, The area is noW zoned no Residence D-3 &-xma(# Tho buninees rich tl7.8 petitioner presently operates in Santuit has bee OM0 an eyesore to the r�r:unity and the petitioner reels that it Mould bs in tlu bast into:-oats of al irae:nod to move the busineaa to an area taell away from the travelled highway. is the opinion of many' people that the situa�lian can it now. exists creatGG eeohez 3rdship not only for the village of Santui.t s but also for Cotut`te tyre `,aced that the propoced location-ris about ]000 Poet from �r�d and hO lots a a hollow with a screen of trees mwraeuding the frmt p� rated the': stored vehicles would not be visible from the road• ib',, Hoacher srtl^,or mated that they phyaical condition or tbD prcponed location was sash hat it could not be used for residentiatl. purponese To deny the owner use le of th and for any purpose wou]dfavor off t:it�ton�vrm hardship to him* 6 p®oploospolte 1n ar poka or wane. recorded in pe pooeatione it wan the opinion CC tlie. Board that the exia Ling autexnoUilo parts salvar- perration in its present locations hue created a serious problcm for the entire .eiFhborhoode The location of ealvnge yardo is a dirt icult probl.om in any area of tl:o towns However, it* is impexrtant that they be placed in areas weft ma away 'rem the well-travelled hi�iways and ishero the day to day* operntiona may be icroonod from- v2®v as much as poseib].es The loIttiIs IMo tan tVich o notethat �80ka permission to uses Beams to fit those* fnting :arsons who cn-n' property near the propovod location spoke in ntl t a ow :his request as the lesser or two e�vil.a. The Hoard furt:he�r rauxut that awing to espocia117 affecting fecting thins parcel, but not affectinE of ,,enerally the zoning district. in which it in l+oanted, atiti,oner and literal further the ,he I3y-.Leaw would invol-pro substantial harelaliip to the pm th •olief could be granted without tu�tlUry ing or substantially derrogating Mara Intent .and- purposes of the zoning by-lave The Board unsnimunsly voted to grain )dtitioners• requ9rt s subject to the following conditions: U ThUt the use of tt Lard in the new location bo restricted entirely to that area behind the screen troe�se 2„�, 'fit only we building mcey be aonstruated for use in connoation with t110 salvage yard and such buildtig must be located behind the nalmon of treeee ; "to trees area- to be ,removed. 1�'"l�t the present location at Sanntuit be aonpls te: --loared of all mate rial within a xe a.scnable titee1 Distribution:— Board of Appeals , Town Clerk Town of Barnstable f Applicant Persons interested Building Inspector "-. I 1 N M 1 I:S al:L /� Y —�.x'I_'s..., .. M�. .�-.'�..tl. L'fCll1�..ner - ._ ♦ _�ryrr_.� .__..._.. .�.-'may _--�..,s-s-� -- - - =�•:-: _.COMMONWEALTH.:'.OE.t-MASS'ACAUSETTS-- - _-.{.-_:;,•�. ��.`,:-_-- - : -BARNSTABLE '"SS. -----'- -COURT N0� - .. .. r.._... ., - __. ... _ -r... . "-.-----... .. :SUPERIOR _ :9 -576 - GIFFORD BROTHERS SAND AND } ... ... ... ._.._.:.GRAVEL, --INC, .. :••,. .) -.. :.-.- -'-.. _. - Plaintiff ) .- _. .-: -,:PATRICIA.:L_.::GIFFORD,- -MAYNARD ` -T. '.GIFFORD :and HORTOLOTTI . . .. .. .. CONSTRUCTION­ ::INC. AFFIDAVIT OF DEFENDANT PATRICIA L.* GIFFORD I, Patricia L. Gifford, being first duly sworn on oath depose.-and-say.. that: 1. I, Patricia L. Gifford, am a­ Defendant in the above- captioned matter and I am an individual residing at 800 Wakeby Road, Marstons Mills, Massachusetts; .am an owner--of 'the 12-14 'acre- parcel of land located on Wakeby Road,. Marstons Millis, ...Massachusetts . which -is - the subject of the above-referenced suit; . .:µ 3. I acquired an interest in the property through the estate of. my husband, William C. Gifford,- who- died in 1991; 4 . My husband, William C. Gifford, acquired his interest in ' the property from his father, 'Lorenzo T. Gifford, Jr. The deed transferring an interest in said property from Lorenzo T. Gifford to my husband is recorded with- the Barnstable County Registry of .Deeds in Book '1350, Page 14 . Said deed is dated October 24 , 1966 and grants an interest in the property to my _hus_band, along with his _brother. Maynard T. .Gi,fford, as tenants ..._ _ in common. A copy of the Deed 'is attached hereto as Exhibit A; S.. , I have reviewed the deed dated .June 27, 1967 recorded.with ' .... : .._:..;the_Harnstable.County .Registry of Deeds in-Book 1370,'•-Page 386 which purportedly transfers a 1/3 .1nterest in the 12-14 acre _parcel:aoaated on Wakeby-.Road,' Marstons :Mills, .:Maesac2Cusetts . ::... rola my husband, William C.'..Gif ford;=I.Jand .my.:brother-in-law, :.:'Maynard T. Gifford, to Priscilla .8....Gifford. :: Said deed also ,.... _.....�.__y_.. __. .::....7:dontaing;::my-signature.. :.A copy of the Deed -is attached hereto. as' Exhibit --�--08/14/I995 15:45----5087756©`13 5087756029 ----------------------------__r.--=�"__---- -----=-..Y.;,.:^,,��.•�'------- ':•. =� ' ' w M"`' MPAGE�r'H3. ' •Y..a...ram_.. _... _. _.... .._. .•.....• •.. ar - — - Y. _ -<._ A7.. .ff^�; ... _ n•yl y:. 1:..n.:�'J'._..�.:.-v,..ri' •1J ( yw4ru.a yyy -...1:...:+_'�.a._���A•", _ +�✓ f_.—.�:_.-..'1„'„- %• -.�..r✓,: .... �. C'..yY';.'• T-.�^�_.'V+�,^-.�.M'Xiwn1•• :K. 'ii.: --. ' — ...-.....�•."•_`"''_meµ' _ _.... ....:_t-:-a.T.—.--cam•.== —.. _ -��.�•�..—� - - - _ o ave nv. recollect on ever_signing the deed recorded . in Book.. 1370, Page. :386 : :-=:- i 7• - I =have reviewed the deed"'recorded with the Barnstable County Registry of Deeds in Book 1370, Page 386 and I do not believe that—the—signature _.om. said ..deed -is 'my- signature; 8 - the death of my husband .in 1991 I discussed the existence of the deed.in• Book -1370�'Page 386 .with my husband.. i My husband stated to"ills:_that`'he -did' not believe the signature on _:..said• deed was his ':'signature and that we needed to straighten this matter..'`_o'ut=..: � :�'_:�:v. " -. -r. .. 9- - My husband, the Defendant :Maynard T. Gifford, and I, f retained a lawyer to look into this matter but nothing was • doge by the lawyer; --- 10 Al though-my-husbanrl and-I always intended to investigate this deed and clarify ownership to this land we failed *to do so after the lawyer we ..retained took no action. One of the `'to follow : up on this matter was that i Priscilla E. Giff Ord,-a purported .owner of the ro ert:- interfered_with -our.:operation-=of the. property P p y 'never 11. . Since thee"I950 's• 'my"deceased husband and his family have operated' a sand pit and junkyard on this property; 12. When my husband was alive he. use to load trucks 'up with sand' and gravel with his front-end loader; 13. Shortly after the death of my husband in 1991 our front- end loader ceased working; / +. Since that 'time, we have continued to sell sand with the assistance of the Defendant Bortolotti Construction, Inc.; 15.--We -have made 'an-'arrangementWith-the Defendant Bortolotti Construction, Inc. whereby if anyone contactis 'us to purch sand or gravel from our pit we refer the potential. a the Defendant. Bortolotti Construction,, Inc. The customer se to Defendant Bortolotti --Construction% ::_..Inc.-.-loads . the sand:.from�.oui pit "' own 4e uipment arid'manpower and"then delivers it to the.... customers location. --. The ..Defendant Bortolotti:.'.Construction, .Inc.: pays us $20.00 per truck load for the sand it.. removes from our, property..-` ::'-The fee to Bortolotti .... ....--Construction Inc. avers es a 1.20 .. .. ... _ _. . .. .. . ... _.. ._ _ Pprox atelY..$ .per yard; 16 "The !Defendant Bortolotti Construction, Inc. also leases an area of. land on the subject premises from us. The Defendant Bortolotti Construction, Inc. pays us the sum of $400.00 a month rent. In exchange for the rent the Defendant Bortolotti Construction, Inc— is allowed to leave vehicles on the Teased.portion of the property and can store materials such as stones,. ,topsoil, and woodchips; -.- ..—__ 4=_.. - - _.....�•_._... -_- _:Z�..•---.�CSfr`2 -5:. An'MT _ _T-.r3i�"�'_.^.._�.wC:. .ioni ontractor- •---sue-. urchase�eand=fioucorP:it: -pTIents�occe�t � ;_ -----�-; •_w-=s-- :^fa 7re_qu d­;_,ta=•brtr . itsTown Ioa he degi=k d=te -GO raato: "" ==-•-- ; �thii�-�-tics=rt,bee�doTne.=ia.��fie-=- - - -'-- --_=-ne atiated-a" rice--emFar. to-the-fees .aie charge—we -Bortolotti Construction�--Ync._f.:.-_:. ;-�-- -- dant 18..-After. the _deatli o£. husband in 1991, I .alb' �::.. wed my eon to take-over the operation and meriagement of the sao., pit. During this period of -time my son. mismanaged the book% 4amd failed to _.._._......_. a ..-bills -result=of-his•..mismana ement_of_ .. ...._ 4 - dye-books the_--.. ...real.°estate -taxes fell an arrears; j 19 I _have since ..taken .:control of .the bus' �8 - and have entered into an .agreement_with:-the Town of Ba rllt�+,able for- the payment of the .back real:estate taxes. , Current4� ke -are up to -:.date :on"the. payment.".-* cheduled ..worked out -.with the Town of ...Barnstable; ::- -- : ..:_:............ 20:' Recentl pro pert• the P . P ert Y_waia�. inspected by..M� , �d Barry, an - agent for the Town of -Barnstable Board of Healjz�k, Barry informed me that he received an anonymous phoall- with -a — - - complaint .stating that we were -storing and 4:�lsposing of hazardous waste and materials`-on the property, : 21. _Mr. Barry visited the location approximateljr tour to five times to view the property: 'No problems with hakk- rdous waste or .-materials ,were discovered'--and -the property Was given a j clean -bill of :.health.' ' "'=A::'copy of the Boaza of Health Inspection Report is attached. hersto as Exhibit 22 . Since June 27, 1967,` .::the date of tha deed which ` purportddly ' transferred . 'an ":interest in the property -to : Priscilla - E. :. Gifford, Priscilla E. Giffox-vt has never participated in the operation-: of the business in any 'manner; 23. Priscilla E. Gifford has never contributed any of the expenses of operating the business nor has she aV*r requested an .accounting of the bus iness,. operation; 24 . Priscilla E. Gifford ' has_ never inquired _, about an- y -'-----._...__- -contracts with any-customers of the sandpit operation located on the subject property; 25. Upon information. .and .belief the principal officer and shareholder of the Plaintiff..Gifford Brothers.Sand and Gravel, - - --'-- _- Inc,• is-Christopher.Keyes, 26.- Christopher ,Keyes-a also °a'_tenant renting a� .:subject: _property; —:-'.'_ _;. pace on the.. 2'�- Mr-- Keyes -_has '..failed 'to .: a rent for.. his property Since 2991 ... . pay use •of -the 08/14/1995 15:45 5037756029 5087756029 PAGE=-0 ._..',T::..'•:w:!�..:-"1'�"'C��C'.z'0212..�. '�'...T.Y.:•.^ _ '•.�w"n,-.r_,wg�.vr.�:. :.:a, .:.��":.4;...�i'.:.iri�.sw.rytaama "'�"ir.""rr�_2... ' ::�-:..:::.x"st' •:may ' ':. ; •� ......._�..Y_...r. ..�:.�..� .�� Ke es hrta;-ca etahtTyxfnte=fered with:_ouz7operat - j _ the-sandpitVaiid:hae;-;hataseed m seIf =my�b=other- _ .T..=�Gif.ford.-_ - . .. _ Y_._ ._ - --and:Z6 uatomera •- r���-- -__._____- �Z 9 we-:- --•�'— , . sue-•--_,. _.... .'•:�`�� -- -- nittated an action to ~-evict .�Mr. ...Keyes "from :our -- property ..for failure to pay rent. When."we brought that action' E - he subsequently :enter-ad -into 'an agreement with -Priscilla E. Gifford and obtained a power-`bf attorney from her granting him the right to act on her behalf --When Mr:---Keyes --informed�me�about-�-the_-Purchase .and Sale :. Agreement -and -Power 'of Attorney .'.between .his corporation:_and -' ".Priscifla I was rn that attorney-E.-Gifford, representing,Mr:.-Keyes was the same-.'attorney we had previously t - retained to .investigate the :,circumstances .surrounding ..the _. execution of the deed which, purportedly creates. an `ownership -'interest =in `the property in Priscilla"-E:` Gifford•. ' 31. When our lawyer informed Mr..*'Keyes' lawyer of our conflict of interest claim - the lawyer withdrew from the case; 32•-If-the_Plaintiff -is-granted -the-relief-it-seeks-tlie- Defendants -will be irreparably harmed - because it would prohibit us from operating our sand and gravel business which is our main source of income. If we .are. unable to operate the business :during the pendency"'.`of this lawsuit we would most :- ' likely lose the .property..__to the Town.:of.. Barnstable, in. a real- estate tax`fa eclosure. Additionally, both Maynard T. -Gifford . and I would • not -be -able to pay ..our bills relating to the operation of. the - business and our home; 33. Based -.upon the statements made 'to me by my now :deceased'- husband, •arid my review of the 'deed which purportedly transfers an interest in the property to Priscilla E. Gifford, I believe that we will establish at trial that the signatures on the deed are not legitimate and that Priscilla E. Gifford has no ownership interest in the property. Signed under the pains and. penalties of perjury this 14th day of August, 1995 . pZ Patricia L. Giffor L .. .......... . .- ..__ . ----------------------_------__-__------_----------_-_---_--•------_-_---_--_--__ _�_�_____ 08/14/1.995 15:45 5037756029 5087756029 PAGE 06 - BP:10105-0202 96-03-18 2:47 4014765 I, Priscilla E. Gifford, of 650 Olive Street, Denver, Colorado �� �3fINiiQ�1XI4I��:�14�tsYeKt2;, ' being unmarried, for consideration paid $40,000.00 (Forty Thousand Dollars) grantto Gifford Brothers Sand & Gravel, Inc. , 44 Asa Meiggs Road, Sandwich, Barnstable, ss. , MA 02563 with quitclaim tubtnantg the land i Barnstable (Newtown) , Barnstable County, MA bounded and described as folrows: (Description and encumbrances,if any) i A certain piece of land and woodland in Newtown, Barnstable, Massachusetts, formerly the ho estead of Joseph Landers, reference to deed recorded on December 18,P�1,y" in Barnstable County Registry of Deeds, Book 66, Pages 107 and 108. Containing twelve to fouteen acres. See deed to Maynard T. Gifford and William C. Gifford, recorded in Book 1350, Page 14. BARNSTABLE COUNTY DEEDS REG 01 REGISTCOUNTY Y-OF C�<"�r BARNSTABLE COUNTY EXCI " j 03/18/96��� 03/18/ ifiii III T 91.20 �Nd 91.20 TAX V 136.80 / ptJ►5H 91.20 CASH 136.80 F 0 d W4 ke by 1 c� a QI 46 EXCISE TAX 0089 NOi -Mill 0:46 COUNTY EXCISE TAX 71�lltniltf } << hand and seal this 5th day of March 96. 19 Pr CiI1 E`.,Gi ord .... State of Colorado • �tx�ottttneitilocoaitij�tt�ltst�a�jtr�xCts�( Pity $ rntlnty of nAnvar X . Marrh 5 19 4f; Then personally appeared the above named Priscilla E. Gifford and acknowledged the foregoing instrument to be her free act and deed, before me, Notlry Public-Justice of the Peace My commission expires //-/3 .19 FORM 106 LAWYERS STATIONERY CO..INC. BOSTON.MA BARNSTABLE REGISTRY OF DEEDS I, William P. Gifford, BP:09678-0174 95-10-11 11:0$ #OS1133 IIf 800 Wakeby Road, Marstons Mills, Barnstable. . county,Massachusetts, )Q*rtlg%flhy#Xii)li4)<ft►r consideratlon paid,and in full consideration of*$4000.00**(Four Thousand Dollars 1 j granlltl► Gifford Brothers Sand and Gravel, Inc., of 44 Asa Meiggs Road,* Sat)dwich, Barnstable, ss., Massachusetts 02563 of all of my right, title and interest to: will'qulldsllnrsutnallls the lat'd in Barnstable (Newtowtl), Barnstable County, Massachusetts, bounded and described as follows: A certain piece of land and woodland in Newtown, Barnstable, Massachusetts, fotinerly the homestead of Joseph Ladders, reference to deed recorded oil . December 10, 1857 In Barnstable County Registry,of Deeds,-- Book 66, Pages . 107 and 108. Containing twelve to fourteen acres. - Excepting from the above premises any interest in the houselot at 80.0 Wakeby Road, Marstons Mills. f BARNSTABLE_1CAUt1TYRE 'I1EEIIS,REG: Ol LSU BARNSTOLE: ) 000 If TAX 9.12 `• TAX 13.68 TOTAL.:•. 9.12 - 13: 9.12 CHCK ;CHECK\ 68 ; 5481A00.0` 11;05 " EXCISE--TAX' .„ 0010 COlAITY EXCISE 7AX Ilntlle my land And Seal Ihls- � 95 dayof ,Lq_ William P. Gif d U111e(Oalnmanwenhl)of M008adplePlls Barnstable County = 19 'Pile"personally appeared the above named William P. Gifford and acknowledged file foregoing,lnsinril tet.4o be his free act nd deed berure nie :4 °j?�c•. ;.,< tH� l NotaryPuhlle—) 11(eoflhelcace YAae.1 24. Mjoeamml ones Ire/ log? <1Y CCItsIMI5510N EXPIRES MAR 28,W97 • '.'('Intyll�k4dp1-;Z)�Sfnl Tenants—Tenmla In Cummnn.) - {1 r BARNSTABLE REGISTRY OF DEEDS (:IIAPI'P.R IR7 SP(:.(t AS AAIP.NI)PI)nY(:IIAPI P.R 497 trf 19C9 tirrrpydeed pursenled for record shall ertlnala cir have calloused upon If site full panic•lesldencr and plost office address of site gloalre anI a urcilol of file 21114111111 fit lilt full canine Allan Iherrlof In dollars or the nature at die allies ecinsidcrallon therefor.If licit dellrerrd for a sprt lilt-nnlolefatl•suns '1'hr lull elonsirkfa lon 311311 nicml site I41131 Price for du conveyance ahh d nin alucnlon(,or sn1•Ilea at-encumhraucrs assumed by file gloater or renulning Illocon.All such endursenienu Slid eceluls shall he seconded as part cif list deed.1'Sllure oil comply ttlilt lldssrt'IlonshSlltat#alfrrntlle.ralldhflol ant deed.Nosrsislernfdredssllallirrerrtadrerlf•...rrv•n w.y,l—t,l.1•....•...n.-•. Is- ...•..t. .....•, .r •r.t. ....,.... BPt09878-0173 95-10-11 11:08 #051132 MASSACHUSETTS QUITCLAIM DEED SHORT FORM IINDIVIOUALI 881 I, Patricia Brown, aka Patky Gifford, daughter of Patricia L. Gifford and the late William C. Gifford, of PO Box 271 , Harmony , ME 04942 \ of t.a County,Massachusetts, i V'¢36)g}UiaiWkr XX for consideration paid,and in full consideration of*$4000.00**(Four Thousand Dollars) ; grantlo Gifford Brothers Sand and Gravel, Inc., of 44 Asa Meiggs Road,* Sandwich, Barnstable, ss., Massachusetts 02563 of with quitdnim f:auenents all of my right, title and interest to: the- land in Barnstable (Newtown), Barnstable County, Massachusetts, bounded and described as follows: A certain piece of land and woodland in Newtown, Barnstable, Massachusetts, formerly the homestead of Joseph Landers, reference to deed recorded on December 18, 1857 in Barnstable County Registry of Deeds, Book 66, Pages 1 107 and 108. Containing twelve to fourteen acres. Excepting from the above premises any interest in the houselot at 800 Wakeby Road, Marstons Mills. BARNSTABLE COUNTY i OF COUNTYREGISTRY CI (�� UBA 4H�L5L�I5D COUNTY EXCI� ��c'aaL51J ,C 10/11/95 l\ 10/11/95 000 H TAX 9.12 FAX 13.68 TOTAL 9.12 CNCh 13.68 CHECK 9.12 5480A000 11:05 0009 EXCISE TAX 402 11111f 11.0E COUNTY EXCISE TAX my �� July 95 OitnesH hand and seal this day of , 19— YC)�ff(i,•e�� �l�A>alc� • Patricia Brown • iIIbe lQammanwenlili of�lassacftusetts State of Maine XX County �tcy (r - 19Q� Q Then personally appeared the above named Patricia Brown and acknowledged the foregoing instrument to be her fee act and deed before me Notary Public—justice of the P 1k 0 TA/?)•; "31y commission a:pins .? 3 �vgg �lc:` (•InQividtgl'.,gint9enanls`7 Tenants in Common.) J• CHAPTER 183 466,4 kv� '8y BY CHAPTER 497 of 1969 Every deed presented for record shall contaitter.pave en o13r upon It the full name,residence and post office address of the grantee and a reclnl of the amount of the full consideration tBer66f to dollars or the nature of the other consideration therefor,if not delivered for a p specific monetary sum.The full consideration shall mean the ftihl price for the conveyance without deduction for any liens or encumbrance assumed by the grantee or remaining thereon.All such endorsements and recitals shall be recorded as part of the deed.Failure to comply with this section shall not affect the validity of any deed.No register of deeds shall accept a deed for recording unless It Is In compliance with the requirements of this section. BARNSTABLE REGISTRY OF DEEDS BP-09897-0177 9S-10-24 2:SO #053840 I, SHARI LEE GIFFORD JOHNSON, of PO Box 164, Harmony, Maine 04942 9fX i XR4 tiie»1Nt1(Otf(I?I t IP}b 0k)IMKT R94 for consideration paid,and In full consideration of*$4 000.00**(Four Thousand Dollars) Rrartll° Gifford Brothers Sand and Gravel, Inc., of 44 Asa Meiggs Road,* Sandwich, Barnstable, ss., Massachusetts 02563 (if wltls qulldalm couenanls all of my right, title and interest to: the land in Barnstable (Newtown), Barnstable County, Massachusetts, bounded and described as follows: A certain piece of land and woodland in Newtown, Barnstable, Massachusetts, focntelly the homestead of Joseph Landers, reference to deed recorded on December 18, 1857 in Barnstable County Registry of Deeds, Book 66, Pages 107 and 108. Containing twelve to fourteen acres. - Excepting from the above premises any interest in the houselot at 800 Wakeby Road, Marstons Mills. Also excepting any interest that may accrue to my benefit as a result of deeds from my parents William C. Gifford and Patricia L. Gifford and my uncle, Maynard T. Gifford to my aunt Priscilla E. Gifford. 1 2 BARNSTABLE COUNTY f Q REGISTRY OF DEEDS T DEEDS REG 01 � �LSLSI d ' 1011/95 "mill - 2 � ,9:t TAX 9.12 ' TAX 13.68 TOTAL 9A2 CHCK 13.68 CHECK 9A2 T 5482A000 11:06 9 Coll EXCISE TAX #02, #1111 11:07 { CO WY EXCISE TAX m ttlth 18th $ctt2beir "Iliftoo y hand and seal tills dayof up sat aR ,19 95 3 \ w Giffo d ohnson J Sheri Lee Pilot 41olntnoatueallh of foustiachnoells State of Maine Somerset County October S�R11{1t)€!{R 18 19 95 1'halpersunAly appealed tile above named Shari Lee Gifford Johnson i and at•knowledgcfl file foregoing hlslronlcut to be her rev aCI find deed before me • No lce ry Public—)usl of the Peace glrcommluloneaplra September 20.Vx 2002 + �kW&S.Gpltano•Notary Public ('Individual—)oinlVenanis—Tenants in Common.) 8tateofMaine rwAy 0opMwleslon Expires 9/2=002 ' (:11AP'FFRIfy SEC.6ASARIF.NIM)DYCIIAPTF.R497of196�j�p ccTeeppIICCpO��//������Tpyy c C i For record shall cotraln ur have endorsed upon It die full uame,tesldcncCirAl�l TART F�INrNtwUrrflk Ol LDEEDS at tom of the full eotulduadan dtereof In dollars or the nature of cite uthct consldcratlon therefor.It our dclh•etord ror a f spec I I :wnr.The cull consideration shall mean the total price For the conveyance Million deducdnn For any hens or encunthranct•s assuutcd bf•the Rtantce or«ntalnbtg thereon.All such endunornicnts told recitals shall be rccurdcd as part of the cited.Fallure to corn Ip - It III dds srcdoo$ha11 not affect cite valldlly of any deed.No register of deeds slull accept a deed for recording unless it Is In compllence a&I it .••,..t• ....nt+ of dtls errtlon. « 11= I u\ 11 S n ee'ld /' 5 \16•to \ ROE '' •'• -�� ' G W v \ v A , �\ \\ ' \ 3 \\ py 0 ! 4 ' .✓..ire '.. ! +1 e° `�•' p p� + •asp• t" 0' ., �-o�+•.. ::: 5' v\�'�¢' � . �.� � —.. ."'"^•RfiEILMtE-0.U1E0. ��BY \yyd to �. 1 1 i t �ccGt 1p �Seo s: .o-Y t�' � 1 V LAN 10� to N D 1�py.j dw ur odd!es -:f . 'Ni1✓1'OW B Fv!R !a"an Nis On an pr be d ywin +. `'tom`+. E., '/y/,tyN.A RO :T'• ,y wass3�io+.+°dprbesddo `a. pRi.SC/LL A G/FFORD' . SUeeh and rats sfiarR an tlasR d 11'V/LL/AM � _ yubiaa prisata strteb a r+is alroadi _ . . aupGsnod,and Nit n°nn Goes Irt 'AR,.WN OY' SGtl : //M• •/Oo� ..r` . dirism d eaistia f naaeahp WOW DOW .. A'A•~' �nw1 1 nua. zs,rf�+ °•ais an shwa r~R.ye vATZ: r:+`/•'j� DaU SYlwloa pMw gLlJ"N• RIO/i.TIR/O SYR✓`YORE A C/'/4/NfiRa t4Asa. •//P74097 .. 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Jones for the purpose of ��etir-P,, use Of 1?r®D1230B_r�7` t11A 9tUl"�.;_�?of '1�3Ad cars Und�a Qc3� eMLe undor a Cluas�3 Salvage L.ioana3e_. Locus is presently zoned in gomi(Ioni a M-2 -----•••— ---- •---• Notice of this hearing was given by mail, postage prepaid, to all persons deemed affected and by publishing in Cape Cod Standard Times, a daily newspaper published in Town of Barnstable a copy of which is attached to the record of these proceedings filed with Town Clerk. A public hearing by the Board of Appeals of the Town -of Barnstable was held at the Town 1 . Office Building, Hyannis, Mass., at �'' P.M. '�op' 3� 19 upon said petition under zoning by-laws. Present at the hearing were the following members: oberta, 1�. _7' •©il Chairman how 5y acxllin. • At the conclusion of the hearing, the Board took said petition under advisement. A view of the locus was had by the Board. On 19 , the Board of Appeals found ':he petitioners Stated that he presently has a Class 3 Saly ar .,e License. The premiaes which he proposes to use off Wakeby Bd. are located in a deep hollow which is not suitable for residential V3MP purposes. Part of the area had been used as a eaand pit. The sourest residence is about 1.000 Pt. array. There has been aonsiderssble dusapIng of brush and other debris on ass aad3oini: pa"al. The petitioner plane to erect a building for tho storm or parts. Tne peti tloners have attempted to final other loeatloss but have been unable to. Two persons appeared in favor and two persons appen.red in opposition. The Board was of the opinion that the zoning area In which tz:e petitioner' s land is loonted, is the most highly reatrioted zoning In the :own. The abutting property owners w4io appeared stated that they int r ed to develop their land for residential purposes. Urcler these oiraumstranoes the looation of a salvage yard on these premises would be a detrfnent to the area. In addition. the 3oard felt that tho petitioner tailed to establish a ,ufflolent hardship to warrant the granting of a va3riwwo. '"is Board unaninotdy voted to deny the potiti onar's request. Restrictions imposed: Distribution:— Board of Appeals Torn Clerk Town of Barnstable Applicant Persons interested Building Inspector Public Information By Board of Appeals Chairman y�%THE ' Wp 1. z i WX LOR f^l 0 +e ''Fo nar a• ' TOWN OF BARNSTABLE PETITION FOR VARIANCE UNDER THE ZONING BY-LAW SPECIAL PERMIT To the Board of Appeals, Hyannis,Mass. Date — March �3 19 The undersigned petitions the Board of Appeals to vary, in the manner and for the reasons i hereinafter set forth, the application of the provisions of the zoning by-law to the following described premises. Applicant: 1._Zat0b=- 11fDrA Main Street, Santuit (Full Name) (Winter Address) Owner: . Same (Full Name) (Winter Address) Tenant.(if any) (Full Name) M/1fj-,1$ (Winter Address) 1. Location of Premises Wakgby Road, Newtown- north side, near town lino. (Name of Street) (What section of Town) 2. Dimensions of lot 250'_ .�____?�0+_._ Area 23 Acres (Frontage) (Depth) (Square Feet) 3. Zoning district in which premises are located- 1113 j4. How long has owner bad title to the above premises? 5t_^ 5. How many buildings are now on the lot? One Undgr_�4riSLT„4t�tion ✓' (i. Give size of existing buildings n`' ':1 10t.94, Proposed buildings 7. State present use of premises_ Gravel p&t-hQr1dP-12i011--m112d 8. State proposed use of premises— parts-salvage under license. (Family busies_ �- 9. Give extent of proposed construction or alterations: None _ 10. Number of living units for which building is to be arranged None S 11. Have you submitted plans for above to the Building Inspector? No 12. Has he refused a permit? xgWYes. 13. What section of zoning by-law do you ask to be varied? RD 3 and Sec. Q 4. +' 14. State reasons for variance or special permit: _The proposed area is about one thousand feet r from the road, i&lch is presently abutted by a_gravel pit; the proposed location is in a hallo _ Qre ,than we j-f,ve feet below the upland in front, and is screened by trees completely from the road. No storage or work will e visible FromTH—eroad. The locatlon has no pract3c"T'vllUe Whatever use, and non-use presents a severe hardship to the owner. r ri Respectfully subswwpl � • 11� cSig " Petition received by /f(Address) Hearing date set for s6 �3_ 19;'4� PLEASE SEND ALL CORRESPONDEN T0: • Filing fee of $15.00 required with this petition. • This form may also be used for Appeals. Joseph H. Beecher, Attorney (Over) 149 Main Street e' Hyannis, Mass. TOWN OF BARNSTABLE Board of Appeals t._MAT.0 Ate— Petitioner Appeal No. 1Q6lt-38 Apru at.$ 1964 FACTS and DECISION Petitioner ____sa._�, 'e _��Q _ filed petition on _Apl'U Uh_ 1964 , requesting a variance@ for premises at »1e181Q3b�_Roatl.._ M�.-_w._ __ _21MM, in the village of ?hr9tQ11S_M318_ adjoining premises of�9D_I. �i.�5 a JaSrk l��1'111� _n. F qr=11. Stackhouse for the purpose of .J1d11_RI"!MtW.§ '-- @,Qf....YCbU1e6 of used Darts Locus is presently zoned in Hold dn"M D Notice of this hearing was given by mail, postage prepaid, to all persons deemed affected and by publishing in Cape Cod Standard Times, a daily newspaper published in Town of Barnstable a copy of which is attached to the record of these proceedings filed with Town Clerk. A public hearing by the Board of Appeals of the Town -of Barnstable was held at the Town Office Building, Hyannis, Mass., at U15 MM P.M. Anri123rd 1964 , upon said petition under zoning by-laws. Present at the hearing were the following members: R(Yd= J. BROCKWAY ` R. RALPH BORNE ROLAND T. PM Chairman i At the conclusion of the hearing, the Board took said petition under advisement. A view of the locus was had by the Board. On ...................................................................................... 19......... the Board of Appeals found L. Thatcher Gifford* the Petitioners was represented by Joseph Beecher, Esq. Mr• Beecher stated that the Petitioner was seeking a trariance to move an existing automobile parts salvage business to a new location. The location in which the petitioner proposes to locate his business is in a gravel pit near Wakeby Road in Marston Mills. The area is now zoned as Residence D-3 areas -The business which the petitioner presently operates in Santuit has become an eyesore to the community and the _petitioner reels that -it would be in the best interests of all concerned to move the business to an area well away from the travelled highway* It. is the opinion or many people that the situation sae it now exists createeir"i hardship not only for the village of Santuits but also for Cotuito Mr. Beecher stated that the proposed location is about 1000 feet from the road and is locatet in a hollow with a screen of trees surromding the front part of the lot. He stated that stored vehicles would not be visible from the road. Mr. Beecher further stated that the physical condition of the proposed location was such that -it could not be used for residential pupposess To deny the (nmer use of the land for any purpose would result in a severe hardship to him. 12 people either spoke or were recorded in favor of petitioners request and 6 people spoke in opposition. It was the opinion of the Board that the existing automobile parts salvage operation in its present location, has created a serious problem for the entire neighborhood. The location of salvage yards is a difficult problem in any area of the towns However. it is important that they be placed in areas =fr m¢ away from the well-travelled highways end where the day to day operations may be screened from view as much as possible. The location for wich the petitioner seeks permission to uses seems to fit these. It is important to note that persons Vrho own property n©ar the proposed location spoke in favor of granting this request as the lesser of two evils. The Board further round that owing to conditions 9bRFM2*' especially affecting this parcel, but not affecting generally the zoning district in which it is located, a literal enforcement of the By-Law would involve substantial hardship to the petitioner and further that relief could be granted without nullifying or substantially derrogating from the-.,- Intent and purpose of the zoning by-law. The Board unanimously voted to grant petitioners request, subject to the following conditions= is Thht the use of the land in the new location be restricted entirely to that area behind the screen a_ trees. 2s That only one building may be constructed for use in' connection with- the salvage yard and such build tg must be located behind the screen of trees. No trees are to be removed* k&Tbit the present location at Sentuit be eompletetj cleared of all material within a ie asonable tins, Distribution:— Board of Appeals Town Clerk Town of Barnstable Applicant Persons interested Building Inspector Public Information By ... .... ..... -. . . Board of Appeals Chairman Ory J: ro0 ay lug BASl9TABL 101 TOWN OF BARNSTABLE PETITION FOR VARIANCE UNDER THE ZONING BY-LAW SPECIAL PERMIT To the Board of Appeals, Hyannis, Mass. Date February 27, 19 6 The undersigned petitions.the Board of Appeals to vary, in the manner and for the reasons hereinafter set forth, the application of the provisions of the zoning by-law to the following described premises. Applicant: William Gifford and Maynard Gifford Santuit, Massachusetts (Full Name) (Winter Address) Owner: ------William Gifford and�y�� ��_ San .ui .,,,M (Full Name) (Winter Address) Tenant (if any): Kenneth Borthel Newton Road Santuit, Massachusetts (Full Name) (Winter Address) 1. Location of Premises Wakeby Road Newton, Massachusetts (Name of Street) (What section of Town) 2. Dimensions of lot _ ___Q a-O d— 4_16L� - Area _ �� ± (Frontage) (Depth) (Square Feet) 3. Zoning district in which premises are located.....__..._ 4. How long has owner had title to the above premises? — .__.3.years 5. How many buildings are now on the lot? One 6. Give size of existing buildings 12 x 12 Proposed buildings _ 34_c.3G 7. State present use of premises Metal salvage 8. State proposed use of premises Used auto parts 9. Clive extent of proposed construction or alterations: only addition of building 10. Number of living units for which building is to be arranged none 11. Have you submitted plans for above to the Building Inspectort`— yes 12. Has he refused a permit? Yes 13. What section of zoning by-law do you ask to be varied? 14. "State reasons for variance or special permit: _ There is a need for the business we r seek in the general area, it would antually hel_plean up some of the pro- blems of old cars in areas where there sbpU ,d not be,pne of Your 8eti ti oners has a fused hip and is not able to work full time and this will enable him to run a business within his limited physical capacity. The area will be completely invisible from the road and will not be�changed to any great extent from its present use. Respectfully submitte (Signature Petition received by (Addy Hearing date set for 1� ° Filing fee of $20.00 required with this petition. ° This form may also be used for Appeals. ; (Over) i THE T TOWN OF BARNSTABLE BOARD OF APPEALS D"UST°U NOTICE OF PUBLIC HEARING !� s639. UNDER ZONING BY-LAWS Appeal No. 1969-17 April ll , 196 9 �;Tsbert L. Baker,YFred L. & Ruth R. Wt1liams,A1oring Jones0-1Lrold Jones, B & F Properties, Inc. Being all persons deemed interested or affectad by the Board of Appeals, under Sec. 15 of Chap. 40A of General Laws of the Commonwealth of Massachusetts and all amendments thereto, you are hereby notified that I/WILLIAM G ." RD & ZMIM GIFFCRD Bu� Inspector Ms� � has appealed to the Board of Appeals from a decision of the ildin iB and petitions for permission to vary the zoning by-law to permit extension of a non-conforming use by the construction of a building and to include the sale of used auto parts; premises located Wakeby F.oad, Marstons Mills, in a Residence D3 area. A public hearing will be given on this petition, in - ---- TM � on May ?. 1969 at 3sl5 p.m. You are invited to be present. By order of the Board of Appeals, (15 proofs please) Jean Bearse Aprila Buford Goins �� 0V�, i TOWN OF BARNSTABLE Board of Appeals n IRA- 3MF�fFORD etitioner Appeal No. _. ,9 _s3i3I! 1969 FACTS and DECISION William Gifford & Maynard Giff Petitioner _...�._..._..�...... _ _ ......._.w.............._.-._.W-QO petition on .Ve#j.,_..,?'7-,_ 1969 , requesting L�ria&ee-permit for premises at _ r e�y_ O3a. _._------ t, in the village of MarBtons-1111 I a -, adjoining premises of ve T Grp Fred P.-ith-Id.. .W.' I I isms,_.Lox IYLC.- for the purpose of obl ai iing._.$ bylaw tA—pG'rmit extension of a non-conforming use by the construction of a building and_ta_.incl.ude_•the_saZ.e-of uae"iLto_.parts .aad•_second hand ueUIV4as Locus is presently zoned in ....D_3-_&r-04 i.- Notice of this hearing was given by mail, postage prepaid, to all persons deemed. affected and by publishing in Cape Cod Standard Times, a daily newspaper published in Town of Barnstable a copy of which is attached to the record of these proceedings filed with Town Clerk. A public hearing by the Board of Appeals of the Town of Barnstable was held at the Town Office Building, Hyannis, Mass., at •••34•i15---•--•— P. Z. _ may . 19 69:. upon said petition under zoning by-laws. Present at the hearing were the following membera: Robert Et O'Neil ` Jean Bearsenlfo£�G2ina Chairman z At the conclusion of the hearing, the Board book said petition under advisement. A view of the locus was had by the Board. On _ _ _ _ _----- 19 , the Board of Appeals found The Petitioners were represented by John P. Curley, Jr.,Caq. : The Attorney stated that the Petitioners were seeking permission to extend a non-conformiug use by constructing a building for the sale of used auto parts and second hand vehicles. Air. Curley stated that the original use was granted by the Hoard of Appeals in 1964. The purpose of the new building is to house salvage- able parts from cars and to sell these parts on the premises. Yt will Loe necessary for the Petitioners to secure a different type salvage license, but this would be dependent on the grant- ing of a permit by the Board of Appeals. The existing building would be removed and the new building 34' a 30' would be con- structed. Mr. Curley further stated that the Petitioners own approximately 14-16 acres and that the operation of the salvage yard would be located in the middle of the parcel surroundeu i by woods on three sides and the power line on the back. i It vas the opinion of the Board that the extension requested was not vareasoaable, for 8 salvage yard in this location, and the intent of the Petitioners is to have a larger building to carry on their business. Because of the large acreage owned by the Petitioners, which surrounds the salvage yard operation, the Hoard feels that it is not detrimental to the neighborhood. The Board unanimously voted to grant a Special Permit for the con— struction of a building to be used for the storage and sale of used auto parts and second hand vehicles to William Gifford, :iaynard Gifford and Kenneth Borthel (tenant), to be restricted to that period of time dof ng iihich the presentelfeacreoners parcoel.Y the Tenant jM&§&-9ns0MM&X8�p This decision amends a decision dated May 21, 1969 and filed with the Town Clerk on June 3, 1969. Distribution:— Board of Appeals Town Clerk Town of Barnstable Applicant Persons interested Building Inspector Public Information By Board of Appeals Chairman RobefrV • el E i 33ARISTABL i NAB& � •f� i679. `e G� TOWN OF BARNSTABLE M I ?' PETITION FOR VARIANCE SPECIAL PERMIT UNDER THE ZONING BY-LAW r To the Board of Appeals, Hyannis, Mass. Date IANIIARY 4 19 Z3_ The undersigned petitions the Board of Appeals to vary, in the manner and for the reasons hereinafter set forth, the application of the provisions of the zoning by-law to the following described premises. Applicant: -_WILLIAM GIFFORD _____Y WAKEBYEBY RD• __ , (Full Name) (Winter Address) WILLIAM GIFFORD WAKEBY RD. Owner: ._ (Full Name) (Winter Address) Tenant (if any): (Fall Name) (Winter Address) MARSTON MILL 1. Location of Premises WAKEBY RD. - (Name of Street) (What section of Town) t 2. Dimensions of lot 150 200' Area 86 ACRE$ (Frontage) (Depth) (Square Feet) i. 3. Zoning district in which premises are located RD-2 I 4. How long has owner had title to the above premises? 5. How many buildings are now on the lott—TWO 6. Give size of existing buildings 26 X 38 —V Proposed buildings 24 X 30 10 FT SIDE WA I t ''�•`` 7. State present use of premises SMGl F DW I I I NC 8. State proposed use of premises S MF 9. Give extent of proposed construction or alterations: ERECT A 24 x 30 GARAGE TO HOUSE i G� TRIES R FQIITPMFNT 10. Number of living units for which building is to be arranged AM 11. Have you submitted plans for above to the Building Inspeetort YES ! 12. Has he refused a permit? YFS 13. What section of zoning by-law do you ask to be varied MIR; N(1T MIMNY Tn RFCTDFNTTAI STR Il fTTURFS 14. State reasons for variance or special permit: _ The reason for the 10 Ft wall height of the building is thkt I nrra-i^naly have an opportunity to work on a dump truck or similar vehicle. Also the gara4e will serve as a storage area for many items that would otherwise have to remain outdoors. i , ' i• Respectfully submitted, p ��. (Signature) Petition received by (Address) Hearing date set for • Filing fee of $25.00 required with this petition. ^. • This form may also be used for Appeals. (over) i i. Y 1 TOWN OF BA.RNSTABLE Board of Appeals 1,1iI l i?m j'-i ffnrd ____�, Petitioner Appeal No. 1273-5 ch 15 1973 FACTS and DECISION Petitioner Ui l l.].an Qif_fAxd_ ____ filed petition on jnniinry_1.1..._. 1973 , requesting a variance-permit for premises at 1Wakehy-d.._....._ __. _ ______ Street, in the village of rk�xslls?`a.1.].s ___ _, adjoining premises of Evert L. Baker, Charles N. Savery, Loring G. Jones & Ilarold Jones, Maynard T. & William C. Gifford, Mred L. Williams & Ruth R. Williams, Edward J. McClusky, Raymond R. Rogers, Grace Robertson, Bernice L. Hoxie, Long Pond, George A. Stackhouse, Evert L. Baker, Donald Blake iPlanning Board, Town of Sandwich. • Notice of this hearing was given by mail, postage prepaid, to all persons deemed affected and News by publishing in Cape Cod-&aBc4ad-g4mes, a daily newspaper published in Town of Barnstable a copy of which is attached to the record of these proceedings filed with Town Clerk. A public hearing by the Board of. Appeals of the Town of Barnstable was held at the Town Office Building, Hyannis, Mass., at 2:45 -r-d. P.M. _ Febru 71973 , upon said petition under zoning by-laws. � I Present at the hearing were the following members: Jean 1•1cKenz' Barge Aaltor fi. Goi ns jartp h Q«.Tr J I I i ams Chairman t y THE COMMONWEALTH OF MASSACHUSETTS TOWN OF BARNSTABLE BOARD OF APPEALS 1973 NOTICE OF VARIANCE Conditional or Limited Variance or Special Permit (General Laws Chapter 40A, Section 18 as amended) Notice is hereby given that a Conditional or Limited Variance or Special Permit has been granted To.....Till i.am.ariffar�l.........................--•--•---. ....-...._..........._....................._........_........_............. Owner or Petitioner Address....,12kaby-:taad.....................•---.....--..............................----------...----- -• --....................•- City or Town-----(Barns.tabl-a)----11ar tons.11513 ------•--------------------------------•-----..---..--.-.--.----.--- ...................•-••---------------- Identify Lend Affected .................................... •--................................ by the Town of Barnstable. Board of Appeals affecting the rights of the owner with respect to the use of premises on...... 11akab f•-Rd.-------•-------•---------(Baxns table1..-.I•iarstAna. Street. cis or Town the record title standing in the name of ...................................................................................... ............ •---------.. whose address is---��Iakaby...Rd...----•-----.(.13gr-nstab7.�).._.r��x s��as..J:I:.1].s.............i:1�a•............. � Street City or Town State by a deed duly recorded in the..B,-T-Ct&4b�,�..................Coilllty Registry of Deeds in Boo 1207....... Page.-56R.---.. .......-•••............................Registry District of the Land Court CertificateNo................. ................Book ................Page................ The decision of said Board is on file with the papers in Decision or Case No......19.71- ... in the office of the Town Clerk of the Town of Barnstable. Signed this...15thday of......... �ph.................... .....19 73 Board of Ap Is: Chairman t3oa�t eppea►a :�. ................. .... . ....... .......................Clerk ........ ... . ... -i Boas of Appeal - ..........o......................:19..... at.........--•--o'clock and.............---............:...minutes ----M. Received and entered with the Re ister of Deeds in the County of............................. Book.....................•-- Page................. . ATTEST .................... ........................................................ of Deeds . ... . Notice to be recorded by Petitioner At the conclusion of the hearing, the Board took said petition under r advisement. A view of the locus was had by the Board.. On ____ A?TG1_ 19 , the Board of Appeals found Mr. Gifford represented himself before the Board and stated that he and his brother have a ploiri.ng business in the winter and a small bulldozing business in the summer. The proposed garage would be used for storing and maintainin.- the plowing and bulldozing equipment. The Board found the Petitioner's locus is in an RD-2 District which allows for a home occupation and service use. The Board voted unanimously to allow a Special Permit under Sectioa I 6(b) subject to the following restrictions: Restrictions imposed (1.) The garage may be used for storing and maintaining equipment owned by Mr. Gifford only. (2.) If the use allowed is discontinued or the property-sold, this building could then be used only as a residential garage. I Distribution:— Board of Appeals Town Clerk Applicant Town of Barnstable Persons interested Building Inspector *Chj.l Public Information �h% e Ii t�Board of Appeals ., , -. --- .. _ . . . .. - . __ - -. . .. _. _. :. _. ,: . . - _.. _..: . ' i. • . -. . . .: - _. . o �. _ . . f ��.. W, . a - -: . .. �� �;.' r t r .. rC': ' �� - f Q- _. .�. �, r:; .., x g: �; .. ,:: a ,ui-" - - : . . .: . 8 , 3' . 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' - �. . .: . . .__ . - , �a�o. .,,,. ... . . . .r 59� r a �.':.:: . .I . 3 00 . .:.: +`- . .:...: - 0�9. ,`o� ¢ _.. . - .. -. a . . ,� �� , 'f -- .,:A� B . : . b0- S -� ''f •..• . -g i'p P� 9 . e - . -}% a"_ '4. �. s- v F _ R V''O y a/ 3 REFERENCf RULE , ye �i, . I:. .; $t ` - � 1 � 1 s� llyy 4 G.4 r' •sQl / - ;. �' >_. P4 G . , `or. . +. s r .` yJ �, PLA fV O'G .LA M.O . ' . .1 hereby.mfafy that the property lines : �'.r; •W /l�l i shown on this lan are the lines dividin ' �._. a A sa. M,�4 s; existing owocrships, anti the lines of the ��,� FoR streets and ways shown`are;those of r - `. fR O. T � . . F, - public or primate streets or ways•already .. , . _: .. , . L `. -.establish and that:no new lines'for PRl S C/L L A f lA. Yf�/ L!A M C G!FFO R'A a . division.of existing ownership or for'new : N wa :are shown.: : M: 4` � . a `' i ys. ..: :',.::: :. '�./� :�< OBE.I - •:'. . 74 /� t , �' ' �c �y �__. /' /emu PAT,C A uG. 26, '!'9 a i, ��s:., Q2t8 �� �R.P.B D!l ice; r n�.a•:o - Registered Land Surveyor - q _I /, _ :. c Y N C. c ,, �i -. .: :. _ . .. _ .: - .: ,. r � EN 6/RILE E.!'S fG TaE S RYEYO:P S 3 . Nra n�Nrs MA s /�/�74097'` _ . . ,r - . . _ . - ,:: , - -.Y __. .. _. _- -.__ __.. ., - .._.:- . :..:..-.i _ __ r _ �qq ^ ^ n, a o Ir a n ^ 0 i, n ^ 4 � o 6 O0 a-aa a 7 ,:,n, 0 0 a 0 I ° a n TTEST P A U�. 0 � DEPUTY SHERIFF (TO PLAINTIFF'S ATTORNEY: PLEASE CIRCLE TYPE OF ACTION INVOLVED: TORT MOTOR VEHICLE TORT CONTRACT EQUITABLE RELIEF OTHER i COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SUPERIOR COURT NO. 95-922. GIFFORD BROTHERS SAND AND GRAVEL, INC. VS. BUILDING COMMISSIONER FOR THE TOWN OF BARNSTABLE et al RESTRAINING ORDER To the above-named defendant You are hereby summoned and required to serve upon .Gregory M. Downs , Esq. , ................... .................. ......... plaintiff's attorne , whose address is Losordo 9 Downs , P. 0. Box 163.7 ,...Sandy.ich., Massachusetts 02563 , ...............................I an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judg- ment by default will be taken against you for the relief demanded in the complaint. You are also re- quired to file your answer to the complaint in the office of the ''Clerk of this Court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. WE ALSO NOTIFY YOU that application has been made in•said action, as appears in the com- plaint, for a preliminary injunction and that a hearing upon such application will be held at the Courthouse at .........Barnstable in the County of .....Barnstable in the first session without jury of our said Court on .....Friday the ......twelfth M day of ......`J.u.ly..................... . A. D. 19 9 6 , at ......2. ..0.�................... o'clock�, at which you may appear and show cause why such application should not be granted. In the meantime, until such hearing, WE COMMAND YOU, BUILDING COMMISSIONER FOR THE TOWN OF BARNSTABLE AND TOWN MANAGER FOR THE TOWN OF BARNSTABLE and your agents, attorneys, and counsellors, and each and every one of them to desist and refrain from interfering with the operation of plaintiff, Gifford Brothers Sand and Gravel, Inc. ' s ,. busiries.s , :located at 44 Asa Me:igg.s._Road, Sandwich, Barnstable County , Massachusetts . IT IS FURTHER (YRDERED- that 'said defendants and your agents , attorneys , and counsellors , and each and and every one of them to desist and refrain from interfering with the removal of materials for use by 44 Gravel and Sand? Inc. , pursuant to public contract with the -Town of Barnstable - ROBERT 'A. MULLTG.AN . Esquire, at Barnstable. Witness, ......... ......................... ......... ......... . the ...sec o n.d........................................................... day of ..........4.1.Y..................................................... in the year of our Lord one thousand nine hundred and ..,ninety—six at 2 : 20 p.m. , ...... ........ . Clerk NOTE: When more than one defendant is involved, t e names of all defendants sl appear in the caption. If a separate summons is used for each defendant, each should be addressed to the : particular defendant. `NOTICE TO DEFENDANT You need not appear personally in Court to answer the complaint but if you claim to have a defense, either you er your attorney must serve a copy of your written answer within 20 days as specified herein and also file the original in the Clerk's office. �� (��(.� i j � a.. ����r . `���_� ���.--mw....� p _�,s . ,.._ ... '� 1 _ 4 � i �_ �ir. ���.`o: °.i s,� ._. . � _.,� i 1 -- �KAG14- � i �� r . . .�. - �� � � . � � � � '��� �, C ��,C�,��.� I-'mot_, i l PHONE CALL IFOR DATE TIME 1 3D P.M. NA CIVA'A- ina. MC, OF �D� h LAY1E PHONED y a 8 SS RETURNED PHONE YOUR CALL AREA CODE NUMBER EXTENSION PLEASE CALL MESSAGELL IL W f-s fkb t �D $ e"T-� D CL WAGAINIL pMb lern &: G 1 t-CL CJuh + /' � ,fpj CAMETO l7 SEE YOU WANTS TO SEE YOU SIGNED W iversal 48003 NOTES a i w • '� •`. i �'�1'MPORTANT tN1ES�SA�GE FOR 000 DATE/Z TIME P.M. M >�PHDNED OF ' RETURNED 'PHONE � YOURCALLS AREA CODE NUMBER EXTENSION .' xv' `r" E CALL �MES GE n- WILL CALL4 p .4� Ll rSEEnYOU, SIGNED TORS•" FORM4006 NOTES• , r COMMONWEALTH OF MASSACHUSETTS Barnstable, ss. Superior Court Docket No. 95-922 GIFFORD BROTHERS SAND AND ) GRAVEL, INC. ) PLAINTIFF'S VERIFIED Plaintiff ) V. ) COMPLAINT FOR CIVII: RALPH CROSSEN, Building Commissioner ) CONTEMPT AGAINST for the Town of Barnstable and WARREN J. ) RUTHERFORD, Town Manager for the ) DEFENDANTS Town of Barnstable, ) Defendants ) I I Pursuant to Rule 65.3, Plaintiff incorporates its original Complaint, Motions and Affidavits filed in Superior Court Docket No. 95-922. 1. On or about March 18, 1996, Plaintiff and Defendants by and through counsel, entered into a Stipulation whereby Plaintiff would withdraw its Motion for Injunctive Relief in consideration of Defendants allowing the Plaintiff to continue to operate its business subject to a subsequent determination of the applicability of the permitting process by this Court. A copy of the signed, faxed document together with the fax cover and original document faxed to Town Counsel is attached hereto as Exhibit"A". 2. The underlying action concerns the,applicability in the present instance of Article XIII of the Zoning By-Laws of the Town of Barnstable regarding a permit to be issued by the Town Manager for-the removal of soil, sand and gravel: See Article XIII attached hereto as Exhibit . «B„ 3. Plaintiff, in its underlying action claims the permit is inapplicable under Section Four of Article XIII as the materials are being used for the purpose of"...making of public or private improvements" (i.e. capping the Town Landfill) and because the sand pit is a prior non-conforming use, having been in operation since the early 1950's without any requirement of application for a permit until the present public contract. 4. In March of 1996 Defendants had issued a letter seeking to prevent the Plaintiff from providing materials to the contractor capping the landfill, Plaintiff filed a Motion for Injunctive Relief on or about March 13, 1996. 5. As a result of the filing, the Stipulation referred to in Paragraph One was agreed on between the parties restraining interference with ongoing business pending subsequent determination by this Court. 6. Answer was filed by Defendants, however, no further action was taken. 7. Recently, Defendant, Warren J. Rutherford, Town Manager for the Town of Barnstable, contacted Edwin Whitworth of 44 Gravel and Sand, Inc., the contractor proposing to take materials from Plaintiffs property, informing Mr. Whitworth he could not take the materials from Plaintiffs pit as there had been no permit issued. See Affidavit of Edwin Whitworth attached hereto as Exhibit "C". 8.. Because of the contact with Town Manager, there has been interference with Plaintiff's ongoing business in violation of the Stipulation. 9. Town Counsel has refused to comply with the prior Stipulation stating: "if I signed something illegal it has no effect" See Affidavit of Plaintiffs Counsel attached as Exhibit `.`D". 10. The Defendants have violated the terms oTt*he Stipulation. . 11. There is no public purpose served which would outweigh the immediate and irreparable harm to the Plaintiff through the loss of business. WHEREFORE, Plaintiff requests this Court: 1) Issue an Order enjoining Defendants from interfering with the delivery of materials to 44 Gravel and Sand which materials are to be used for public improvement; 2) Issue an Order enjoining Defendants from interfering with the ongoing operation. of Plaintiffs business until further determination of this Court; 3) Issue a Summons for Civil Contempt pursuant to Rule 65.3(d) requiring hearing on the matter within ten (10) days; 4) Attorneys Fees and Costs as to be shown by Affidavit of Counsel; . 5) Any additional relief deemed equitable and just. 1 , Respectfully submitted, Plaintiff, by and through his attorney reg . Downs 0 0 & DOWNS 78 Ro to 6A, P.O. Box 1637. Sandwich, NIA 02563 (508) 888-6067 B.B.O. #542214 VERIFICATION I, Christopher R. Keyes, President of Gifford Brothers Sand and Gravel, have read the foregoing Complaint and to the.best of my knowledge and belief;state the allegations are turd and accurate representations of the facts contained therein. Signed under the pains and penalties of perjury this day of: 0--1996 Gifford Brothers Sand and Gravel,.Inc. CVCWD . Keyes, its Pr dent COMMONWEALTH OF MASSACHUSETTS Barnstable, ss. Superior Court Docket No. 95-922 i GIFFORD BROTHERS SAND AND ) GRAVEL, INC. ) PLAINTIFF'S EMERGENCY Plaintiff ) V. ) MOTION FOR INJUNCTIVE RALPH CROSSEN, Building Commissioner ) RELIEF for the Town of Barnstable and WARREN J. ) RUTHERFORD, Town Manager for the ) Town of Barnstable, ) Defendants ) NOW COMES the Plaitniff and respectfully moves this Court to issue the following Order based on the prior Stipulation of the parties, pending hearing on the Complaint for Contempt: To Order as Follows: 1) The Defendants are enjoiined from interfering with the operation of Plaintiffs busines until further Order of this Court. In particular Defendantswill not interfere with the removal of materials for use by 44 Gravel & Sand, Inc. In support of this Motion, Plaintiff sites to its prior Emergency Motion, which was withdrawn in consideration of non-interferences to the attached verified Complaint for Contempt together with any and all affidavits submitted herewith. Respectfully submitted, Plaintiff, by and through his attorney r' 40e . Downs &DOWNS 78 Route 6A, P.O. Box 1637 Sandwich, MA 02563 (508) 888-6067 B.B.O. #542214 ..:..l.w.r•..n..n+.. .uw.an4.r...0•... ...... �.. n .. ...._.�.�w.....�nrr...�......r.t......r.._..r...�.�u......v.r......�....... ......r.......... ..... .. .. .. . I COMMONWEALTH OF MASSACHUSETTS Barnstable, ss. Superior Court Docket No. 95-922 GIFFORD BROTHERS SAND AND ) GRAVEL, INC. ) AFFIDAVIT OF COUNSEL IN Plaintiff ) V. ) SUPPORT OF CONTEMPT AND RALPH CROSSEN, Building Commissioner ) EMERGENCY MOTION for the Town of Barnstable and WARREN J. ) RUTHERFORD, Town Manager for the ) Town of Barnstable, ) Defendants ) NOW COMES Gregory M. Downs and being duly sworn, deposes and states: 1) I am the attorney for the Plaintiff, Gifford Brothers Sand and Gravel, inc. and have personal knowledge of the facts stated herein. 2) At the request of my client, on or about March 13, 1996, I filed for injunctive relief and declaratory judgment relative to the non-applicability of the permit requirement of Article XIII to the ongoing business of the Plaintiff. 3) Prior to hearing on the Motion, Town counsel and myself stipulated I would withdraw the motions in consideration of the non-interference with Plaintiffs ongoing business subject to the subsequent determination by the Court of the applicability of the permitting process. 4) In confirmation of the Stipulation, I forwarded a faxed letter dated March 18, 1996, to Town Counsel which I had him sign and stamp and fax back to me. 5) The Town filed an,answer in the present matter but never moved for summary judgment or hearing or took any additional action. - 6) Recently, my client informed me and I confirmed with 44 Gravel and Sand, Inc. the Barnstable Town Manager is now stating no material can be taken from Plaintiff's pit without a permit. 7) I then contacted Town Counsel to discuss the matter in relation to the prior Stipulation and was informed"If I signed something illegal, it's not effective." 8) As the underlying Complaint questions the legality of the permit requirement to Plaintiffs pit and ongoing operation, the answer of Town Counsel is a direct violation of the prior Stipulation. 9) As a result of the Defendants actions I have spent the following time preparing the present documents and estimated time in Court: Preparation of Documents 4.5 hours Court Time (estimated) 2.0 hours Total of 6.5 hours @$150/hr $ 975.00 u Signed under the pains and penalties of perjury thiQ 'day June, 1996. tceg Downs S 0 &DOWNS 78 Route 6A P.O,,Box 1637 Sandwich, MA 02563 (508) 888-6067 I COMMONWEALTH OF MASSACHUSETTS Barnstable, ss. Superior Court Docket No. 95-922 GIFFORD BROTHERS SAND AND ) GRAVEL, INC. ) AFFIDAVIT OF CMUSTOPHER Plaintiff ) V. ) KEYES IN SUPPORT OF RALPH CROSSEN, Building Commissioner ) EMERGENCY MOTION AND for the Town of Barnstable and WARREN J. ) RUTHERFORD, Town Manager for the ) CONTEMPT COMPLAINT Town of Barnstable, ) Defendants ) NOW COMES Christopher Keyes and being duly sworn deposes and states: 1) I am the President of Plaintiff, Gifford Brothers Sand and Gravel, Inc., and have personal knowledge of the facts stated herein. 2) I have verified the foregoing Complaint for Contempt and incorporate the paragraphs thereof herein. 3) Because of contact I received from Edwin Whitworth regarding the necessity to clarify the permitting issue, I am forced to reapply to Court and cease operation with 44 Gravel and Sand, Inc., although I am aware the Town previously stipulated to the continuation of the ongoing business until subsequent determination by the Court. 4) I have previously submitted Affidavits and Verified Motions raising a genuine issue of the applicability of the permitting process to the Gifford Brothers Sand and Gravel pit and to the removal of materials for public improvement. 5) Gifford Brothers Sand and Gravel, Inc. will suffer immediate and irreparable harm should the Town of Barnstable continue to interfere in the ongoing business. 6) As the material provided is of the highest quality and lowest cost there is no public purpose which will serve to outweigh the harm to the business should the Town of Barnstable continue to interfere. Signed under the pains and penalties of perjury this day of June, 1996. Christopher Keyes COMMONWEALTH OF MASSACHUSETTS Barnstable, ss. Superior Court Docket No. 95-922 GIFFORD BROTHERS SAND AND ) AFFIDAVIT OF GRAVEL, INC. ) Plaintiff ) EDWIN WHITWORTH v: ) RALPH CROSSEN, Building Commissioner ) for the Town.of Barnstable, and WARREN J. ) RUTHERFORD, Town Manager for the Town of Barnstable, ) Defendant ) Now comes Edwin Whitworth, President of 44 Gravel& Sand, Inc. and being duly sworn deposes and states that: 1) I am the President of 44 Gravel& Sand, Inc. and have personal knowledge of the facts contained herein. 2) 44 Gravel & Sand, Inc. has a contract with the Town of Barnstable for public improvement in capping the Barnstable landfill. 3) 44 Gravel & Sand, Inc., together with the Town of Barnstable, inspected and tested pits for the purpose of determining whether materials of the quality necessary for the project could be used. i 4) At the time of the execution of the contract with the Town of Barnstable, the Town, . through its agents or employees, were fully aware.of the intent of 44 Gravel and Sand, Inc. to use the materials from Plaintiff's pit, which materials were of the highest quality, the lowest cost and located nearby the project. 5) When the project was already ongoing, the Town of Barnstable raised the issue of the lack of a permit for the Plaintiff's pit. ' 6-213-19% 1 1 :06AM FROM LOSORDO DOWNS 608 833 2307 6) 44 Onavel add SwW, Inc., mWd the issue with the Plaintiff and on information and belief, wbxb I belive to be truer Pb&ff if W=action in Court and received an Agreement not to Mahn with the ongoog oper4m. 7) On of about June 20.1996,1 was contacted by Warren J.Autherfard,Town Manager for the Town ofBanutable,infornring no i could not take mwa Ws from the Pea nifri pit bezause of the hilt of a Pettit. 8j I than contacted Christopha Kgta,Pm ideal of Gifford Brothers Sand and Gravel,Inc. nd irh�trim Of the Problem and that I heeded the treater clarified before I could again take watww fewer his pit. Signed under the pam and poWttee of papxy thin 44day of June, 1996. Edwin Whitworth t I LOSORDo, Dawns JMON _A'1"TbRNEYS.AT LAW._ 78 ROUTE 6A P.O. BOX1W SANDWICH, MA M$63 �i. DOWNS f5081 88W-2 x sUisr JASON FAX isos► s33 2307 March 18, 1996 _ Xr. Robert A. Stith, Esq. $67 gain Street Hyannis, K1 02601 VIA FACsIxII.E-. (308) 775-3344 RE: Gifford Brothers Sand and Gravel, Inc. v. Building Inspector Town of Barnstable Barnstable Superior Court . Docket No. 95-922 Dear Attorney Smith: Pursuant to our discussion of March118, 1996 we have agreed to withdraw the pending Motion for Temporary Restraining Order and understand we will continue .to operate the ongoing business subject to subsequent determination of any-applicability of the permitting process6 will contest the Court to withdraw the Motion. Thank you for your attention to this matter. Sincerely, re M. Downs Go/ell } \k\t\a:aith8l8.let . a fl l�7 l5 U U n ) MAR 1 Fl0'd 0i atgg,�sujva fo umoi-,'W08d '.6p-:ST 966T/BT/£0 Town of Barnstable 367 Main.Street, Hyannis,MA 02601 -(508)790-6280 ]Legal Department FAX SIREET Date: Number of pages including cover sheer To: �OBERT D.SMTM,Town Attorney RUTH J.WEIL,Asst.Town Attorney CLAIRE GRIFFEN,Paralegal Leo Department File Ref: �yo ,B, S- Subject: CO 2P? Phone:. L 0 I FAX Phone: (508}790-6280 CC: Fax phone: (508)-775-3344 REMARKS: Urgent © For your review Reply ASAP Please comment r -- - --- -------- ------ --- - - 61 3 LosogDO, DOWNS & JASON 78 Route 6A, P.O. Box 1637 Sandwich, MA 02563 (508) 888-6067 fax (508)833-2307 fax A : fax #: from: date: 3�� subject: pages: Z_ {Including This Cover} NOTES: —Z � � � Cr "CONFIDENTIALITY NOTICE" The information and documents transmitted by this telecopy are privileged and contain confidential information intended only for the person(s) named above. Any other distribution, copying or disclosure is strictly prohibited. If you have received this telecopy in error, please notify us immediately by telephone and return the original to us without making a copy. " LOSORDO, DOWNS & JASON �G ATTORNEYS AT LAW 78 ROUTE 6A P.O. BOX 1637 BENJAMIN J. LOSORDO SANDWICH, MA 02563 GREGORY M. DOWNS (508) 888.6067 KELLY STENQUIST JASON FAX (508) 833-2307 March 18, 1996 Mr. Robert D. Smith, Esq. 367 Main Street Hyannis, MA 02601 VIA FACSIMILE: (508) 775-3344 RE: Gifford Brothers Sand and Gravel, Inc. v. Building Inspector Town of Barnstable Barnstable Superior Court . Docket No. 95-922 Dear Attorney Smith: , Pursuant to our discussion of March'18, 1996 we have agreed to withdraw the pending Motion for Temporary Restraining Order and understand we will continue to operate the ongoing business subject to subsequent determination of any applicability of the permitting process. I will contact the Court to withdraw the motion. Thank you for your attention to this matter. Sincerely, 5rie M. Downs GMD/elf \k\t\smith318.let 10-09-199S T t --QdPM FROM S087/782d12 P. 1 39 ARTICLE XIII. REXOVAL OF SOI1, SAND AND GRAVES. AND SAND PITS Section 1. % No top soil, sub soil, gravel, sand or other earth may- be removed from the Town of Barnstable without first having obtained a permit from the Town Manager. A permit, with conditions imposed where -, necessary, may be issued for the removal. of top soil, Daub soil, gravel, sand, and other earth if the Town Managere after a public hearing, shall so order provided that no such permit shall be granted except upon written application and after a public hearing- of parties -- - —interested -and consideration of their evidence by the Town Manager; -- notice of said hearing being given by publication of the time and place thereof in a local newspaper not less than two weeks before said hearing, the expense of publication to be 'borne by the petitioner. After such a hearing the Town Manager shall render a dec writing stating the decision and. the-.'reasons therefor an decision with the Town. Clerk and send a copy thereof to Such permit may be renewed. Section. 2 . �No top soil or sub soil shall be removed from place -to place within the Town of Barnstable from an area of ground consisting of more than 5000 square feet unless the person removing such top soil or sub soil shall replant the entire area of such removal with rye, vetch, wheat, legumes or other soil improving plants, or plant with a permanent cover crop or reforest the area. - Section 3 . No sand or gravel shall be removed from place to place within. the - TC14,11 of Earnstabl.e, except that a •,sand and gravel pit may be open and used for such purpose if it is located 100 feet . or more from a street line and no more than one entry and one exit, provided a permit is first obtairad from. the Town Manager, after.a. public hearing has been :held as. 'set. forth -in Section: 1. The cw ner or .owners of all sand and gravel pits shall burn or cart ,to. the town dumping area all dead trees and shrubs when any area amounting to more 'than 5,000 'square feet becomes .unsuited for further use, - and in such cases the area shall be replanted with trees or shrubs to prevent soil erosion. Amended Parch 6, 1965 - Ancroved March 251 1965.. Rescission of old tax'. Adogticn of new text. Section d . The f�_ -d_zanc s: a �_, 1 .* -=_ct a1 V to land in public use- nor cis g c_ s, nor s;.a11 t're,F as-ciy to tze casa c-f m at.a,_ s removed or excavated for ::i CS? C= �-n ro�+�::C; the L C t:7� ground, nc_ C: .'. ._'__'�_ ;S and he maA-; i. q cf public or -- - ---- __ ----------- _,---'- - — ---------- -- n-f __. .. .- -------- .. . - -"} r 5 p T ASPR FPOM 508Ti 82df 2 - --'..._.._. 40 Section 5• the p*ovis_io ns of this ordinance shall be 'Any person. violating p p l ..dollars for the _f irs • -punished by a f ine not. to exceed fifty -.($5 • P dyed ($100 .00) dollars for the second offense and two offense, one hun ° hundred ($240.00) for each subsequent offense 21 1951 p�pproved July 5 , 1951. ted May er L3, '1976. Fine amount Adop 1976. Approved Septemb Amended May I8, changed- : . The .Town of Barnstable NAM• ■nxxsrnete. . Department of Health Safety and Environmental Services ArFDMA'�� Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner I TO: Bob Smith FROM: Ralph Crossen REGARDING: Clifford Gravel Pit DATE: March 13, 1996 Please be advised that the Clifford Gravel pit on Wakeby Road is a pre-existing non-conforming use, and as such is lawful from a zoning perspective. In arriving at this conclusion, we talked to several people with early roots in the area, and interviewed the owner. No information was received to the contrary. g960313a — - ►.r K> ,r Building Inspector Town of Barnstable 367 Main Street Hya-::vs,MA 02601 March 10, 1995 Dear Sir: This is a letter of inquiry and not necessarily a complaint or a request for any action on your part. Apparently the section in Marstons Mills, town of Barnstable, on the far western end of Wakeby Road, near the Mashpee and Sandwich town lines, is zoned for single family residences. There are , however, some exceptions(i.e. Temrock Kennels, per the Board of Appeals, is able to conduct business.) Is the Auto/Salvage/Junk yard owned by the Griffiths on the north side of the road under existing, unexpired and valid license to do business ? Is this section of town also zoned for the storage of excavation equipment and/or the sale of sand and gravel from this same site? Is that license valid and current for this same site? In the same area on the south side of the.street, across from Temrock Kennels,the Bortelloti Construction Company stores truck, excavation equipment, pick-up trucks, etc. Business is conducted from this site. This equipment is constantly exiting and entering this residence. Is this a zoning violation? The reason these questions are being raised is four fold. Safety, misuse of public road and abuse of same, ground water concerns at the auto salvage, and perhaps knowledgeable disregard for the zoning laws by those committing the violation and those enforcing the zoning laws. I wish to remain anonymous because of concern of retribution. However, I shall call the building inspector to ascertain that this was received and what the answers are to these questions. Thanking you in advance. A Concerned Citizen cc: Warren Rutherford, Town Manager cc: Leonard Gobeil, Councilman, Marstons Mills I r TOWN of BARNSTABTJ S t^^ BUILDING DEPARTMENT- COMPLAINT/INQUIRY WfPORT`^'' ; • 4f ;=t Date Rec'd Dv Assessor's No. mast N-are Tel honer Home Work _ Dies ,r3" Ption• _INQUIRY Requestor's Signature COMPLAINT Street Address LOCATT(�u _ _ A OFFICE USE OnL2 INSPECTORS Date `7 s ACTION/ Ins ector COUNTS ��� ���� rZ .�2 , Da � o/ 71 ADD1TIOi7I,L li:FO. 7,TFCEED COPY DIS,�r IEUTZOI,: WEITE DLPFA;y-�;T FILE y - .L £LLO:: - I2:SPLCTOr^^•, t `-1 UTul TO OFFICE Y.G�_� �I 3-1 .4 RC-1 and RF Residential Districts ..` 1) Principal Permitted Uses: The following uses are permitted in the RC-1 and RF Districts : A) Single-family residential dwelling (detached) . 2 ) Accessory Uses : The following uses are permitted as accessory uses in the RC-1 and RF Districts : A) Renting of rooms for not more than three (3) non-family members by the family residing in a single-family dwelling.l0 B) Keeping, stabling and maintenance of horses subject to the provisions of Section 3-1. 1(2) (B) herein. 3) Conditional Uses: The following uses are permitted as conditional uses in the RC-1 and RF Districts, provided a Special Permit is first obtained from the Zoning Board of Appeals subject to the provisions of Section 5-3. 3 herein and subject to the specific standards for such conditional uses as required in this section: A) Professional or Home Occupation use subject to the following: a) Not more than one (1) non-resident is to be employed. !� b) Such use is clearly incidental and subordinate to the use of the dwelling for residential purposes by its occupants . i c) Such use occupies no more than four hundred (400) sq.ft. of the dwelling. { d) There is no change in the outside appearance of the building or premises or other visible. evidence of such use, and no more than one (1) non-illuminated wall sign not exceeding two (2) sq.ft. in area listing only the ioccupant' s name and occupation is to be displayed. f e) The buildings or premises are not being rendered objectionable or detrimental to the residential character of the neighborhood due to the use, exterior appearance, emission of odor, gas, smoke, dust, noise, � .� electrical disturbance, or;riin ;any other=;way: ` I f) No traffic will be generated in excess of normal residential neighborhood volumes. g) Any need for parking generated such use shall be met off- street Y e conduct f each andnotwithina required front yard. 'I �Iii 3-. . :�``}'W!'..:✓a; ,._&I :- $:a '?r�'`id"Pe "�.�.;..r474 .aY''' �''-';t%' i74-�.''vy v�? �.:,t�:'r�. $4�a:,yw��ti,M-��+"L��,.ti;�'� `,—'�F.!Y'?�7�"�r• _ _ "!,%.F:?�:'�.�r�'�: * ` 'was?' o �' ..,,, a s.• mot. 4 1 21 I �' Y: l� B) Renting of rooms to no more than six (6) lodgers in one ( 1) �� multiple-unit dwelling. I Val C) Public or private regulation golf courses subject to the itna 'i provisions of Section 3-1. 1 (3) (B) herein. "`stablin - 1.D) Reep ng;' g'�and' _maintenance ofrw -•horses in excess of the density provisions of Section 3-l. l(2) (B) (b) herein,either on the same or adjacent lot as the principal building to which such use is accessory. E) Family Apartment subject to the 'provisions of Section 3- r � l 1 . 1(3) (D) herein. it i F) Windmills and other devices for the conversion of wind energy to electrical or mechanical energy, but only as an � Ia accessory use. s I 4) Special Permit Uses : The following uses are permitted as Special Permit is first obtained from the Planning Board: special permit uses in the RC-1 and RF Districts, provided a A) Open Space Residential Developments subject to the Provisions of Section 3-1 .7 herein. 5) Bulk Regulations: ZONING MIN.LOT MIN.LOT MIN.LOT MINIMUM YARD MAXIMUM BLDG. DISTS. AREA FRONTAGE WIDTH SETBACKS IN FT. HEIGHT IN FT. IN FT SQ.FT. IN FT. . --------------- FRONT SIDE REAR ty , RC-1 43560 125 RF 43560 150 30 # 15 15 30 * --- 30 # 15 15 30 * ; * Or two and one-half (2-1 2) stories whichever is l# 100 Ft. along Routes 28 and 132 . esser. Ei ija i i v Gam . . _Recycle v✓ilh.white paper. - - - - - _ __ - _ - __ i ...-- --- -- - - -- - -- -- -- t �7 ____ -. __ _ __ ____ _ _ _- _ _ . _ ___.�.._ _ ___ _ _ _-.. _ � ___.__ _ _ __ i t t • - --. _ _ .. --- -1- - - - - - - - - - -- ----- - -- -- - - - - __ ._ -- - -- - - - - �-- -- � - ---_� .� _ _._Y_ .r, - ----- --- - ---- - - - -- - ' - -- --------- -- -- ---- -- - _� - •- --- �---� - �---�--- -- --��---- ------ -- f -- -- - -- - I 1 1 - t - .. - ___ _ .. . . _ r ... . _ . r - a q�y .A. 'E .'. d �. _ �'� PAP"• - f_� y. y *x e BRUCE P. GILMORE ATTORNEY AT LAW 99 WILLOW,STREET YARMOUTHPORT, MA 02675 (508) 362-8833 FAX: (508) 362-5344 E-MAIL: capecodlawyer@comcast.net OF COUNSEL: www.capecodlawyer.com RUBIN, RUDMAN, CHAMBERLAIN & MARSH March 30, 2007 Tom Perry, Town Building Commissioner Town of Barnstable Building Department 200 Main Street Hyannis, MA 02601 _ RE: Town of Barnstable et al. v. Christopher R. Keyes, et al. Docket No.: BACV2005-00530 Dear Tom: In regard to the above-referenced matter,please be advised that trial has been scheduled for September 10,2007. Should you have any questions,please do not hesitate to give me a call. Very truly yours, Bruce P. Gilmore Amm ` - 21 .. c7i r COMMONWEALTH OF MASSACHUSETTS vg� EXECUTIVE OFFICE OF ENVIRONMENTAL.AFFAIRS � DEPARTMENT.OF ENVIRONMENTAL PROTECTION SOUTHEAST REGIONAL OFFICE. 20 RIVERSIDE DRIVE, LAKEVILLE,MA 02347 508-946-2700 MITT ROMNEY ROBERT W.GOLLEDGE,Jr. Governor . �Secretary FERRY HEALEY ARLEEN O'DONNELL Lieutenant Governor - - Commissioner January 3,2007 Mr. Christopher.Keyes Gifford Brothers Sand& Gravel,Inc. 44 ASA Meiggs Road Sandwich,Massachusetts 02563 - RE: DETERMINATION OF ADMINISTRATIVE COMPLETENESS Application No.BWPSW25 CORRECTIVE ACTION DESIGN("CAD") . _ Unpermitted Solid Waste Disposal.Site. Transmittal Number#W097656 _ AT: Gifford Brothers Sand& Gravel 810 Wakeby Road Barnstable,MA 02648 Dear Mr.Keyes: The Massachusetts Department of Environmental=Protection ("MassDEP") has reviewed the referenced BWPSW25 Corrective Action Design("CAD")permit application concerning the clean-up and.closure of the unpermitted -solid waste disposal site located at Gifford Brothers Sand & Gravel (the "owner/operator"), 810 Wakeby Road in the Marston Mills section of Barnstable, Massachusetts (the "site"). ...The application was submitted on your behalf by SITEC Environmental, Inc., of Marshfield, Massachusetts over Transmittal Number #W097656, on October 27, 2006 in accordance with the provisions of 310 CMR 4.00 and 19.000.' According to the submitted information,the site is described as consisting of approximately 19.3-acres, of which approximately 13-acres have historically been used for the disposal and accumulation of solid waste [e.g. wood waste; asphalt, brick and concrete ("ABC") rubble; and junk vehicles, equipment and metal debris]. According to the submitted information, it is proposed that all of the accumulated solid waste will be removed from the site and the waste materials will be either processed/recycled and/or properly disposed of at permitted solid waste management facilities. After the solid waste has been removed form the site, a limited environmental site assessment will be performed in order to ascertain potential adverse environmental impacts at the site, and based upon the results of the assessment perform • whatever remedial actions necessary to abate any such adverse impacts at the site. At a minimum, the limited assessment will consist of confirmatory soil sampling from the previous waste accumulation areas This information is available in alternate format Call Donald M.Gomes,ADA Coordinator at 617-556-1057.TDD Service-1-800-298-2207. MassDEP on the World wide Web. htto://www.mass.gov/dep g� Printed on RecydiddPaper 2 and the installation of an.environmental monitoring network to ensure that the site has been remediated. According to the submitted information,it is the intention to prepare the site for future development. MassDEP has reviewed the application in accordance with the applicable provisions of 310 CMR 19.000 "Solid Waste Regulations", and has determined that the application is Administratively Complete. Accordingly,MassDEP will perform its technical review of the application. All correspondence regarding this matter should reference Transmittal Number#W097656. Should there be any questions regarding this matter, please.cgntact MassDEP at the letterhead address or ° telephone me at(508)946-2833 or Robert Tohnson at(508)946-2$32. Sincerely David B.Elli , i Solid-Waste Management Section E/RHJ/rr BARNSTBUGifford/CAD-adcom fc: Board of Selectmen Town Hall Barnstable, MA 02601 �- Board of Health = . Town Hall Barnstable,MA 02601 Fire Department Town Hall Barnstable,MA 02601 Zoning Board of Appeals Town Hall Barnstable,MA 02601 cc: SITEC Environmental,Inc. 769 Plain Street.Unit C Marshfield,MA 02050 ATTN:R. Quinn DEP-Boston ATTN: J. Doucett COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL• AFFAIRS• DEPARTMENT OF ENVIRONMENTAL PROTECTION SOUTHEAST REGIONAL OFFICE 20 RIVERSIDE DRIVE,.LAKEVILLE,MA-02347 508-946-2700 DEV-_AL L.PATRICK IAN A.BOWLES Governor Secretary TIMOTHY P,MURRAY ARLEEN O'DONNELL Lieutenant Governor Commissioner January 30,2007 Mr. Christopher Keyes Gifford Brothers Sand& Gravel,TL-c,.., 44 ASA Meiggs.Road Sandwich,Massachusetts 02563 RE: PROVISIONAL APPROVAL_ Application No.BWPSW25 ' CORRECTIVE ACTION DESIGN("CAD") _ Unpermitted Solid Waste Disposal Site Transmittal Number#W097656 �. AT: Gifford Brothers Sand& Gravel 810 Wakeby Road Barnstable;MA 02648 Dear Mr.Keyes: •the.Massachusetts. Department of Environmental Protection ("MassDEP") has completed its review of the referenced BWPSW25 Corrective Action Design ("CAD") permit application concerning the clean- up; assessment and.closure of the unpermitted solid waste disposal site located at Gifford Brothers Sand & Gravel (the "owner/operator"), 810 Wakeby Road in the Marston Mills section of Barnstable, Massachusetts (the"site"). The applicationwas submitted-on your behalf by SITEC Environmental,Inc., of Marshfield, Massachusetts (the "consultant") over Transmittal Number-#W097656; on October 27'. 2006., MaSSDEP reviewed the application in accordance with the "Solid Waste Management Regulations" = 310 CMR 19.000 (the "Regulations"); and its Landfill "Technical Guidance Manual" ,dated May 1997 (the "Manual"). MassDEP's review has determined that the application complies with the requirements and provisions of 310 CMR 19.150 for purposes of cleaning up, assessing and_closing the dumpsite. SITE-DESCRIPTION The site is located at 810 Wakeby Road, in the Marston.Mills section'of Barnstable,Massachusetts..�Tfie71 _site:is;located in,.a.rilral-residential. area. . The site does.not contain.';nor;is;wit proximate:to::a:,wetland:- resources area. _The;slte,1s not;located:'.within.an::_established pubhc'._drmking.water supply Zone:.II,or . >:.... IWPA' an8`=is not�ocated.within`the established setback distance`of x surface:wafer_public drinking tivaier _ This information is available in alternate format.Call Donald INI.Gomes,ADA Coordinator at.617-55&1057,TDD Service-1-800-298-2207. DEP on the World Wide Web:ht plFwww;Fnas �3i5vT?lep L� Printed on Recycle&PapOr • surface supply(i.e.250 feet up-gradient or 500 feet down gradient). The.nearest.potential public receptor is located more than 500 feet away::;The site is secured by a:;locking.gate According to the submitted information, the site consists of approximately 19.3-acres, and was a former gravel pit that ceased operations during the 1980's. Approximately 13-acres of the site have been distuibed'and the excavated areas have been used for the accumulation and disposal of certain types of solid waste [e.g. wood waste;-asphalt, brick and concrete ("ABC") rubble; construction and demolition ("C&D)debris;and junk vehicles, equipment and metal debris]. As described in the application, and as observed during a site inspection conducted on January 10, 2007, solid waste.currently existing at the site consists.of the following estimates: •. ABC-approximately 0.25-acre/10 feet deep(i.e.3,000 yds3). - :.C&D-approximately 0.10-acre/3 feet-deep (i.e. 500 yds3). • Wood Waste- 1.0-acre/10-12 feet deep(i.e. 16,000 to 20,000 yds3). �. Metal Debris&Junk Vehicles-50 junk vehicles& equipment, 500 yds3_assorted metal debris, PROJECT DESCRIPTION According'to the submitted information, the intention of the closure process is to prepare the site for fiiture development (i.e. residential). According to the proposed clean-up/assessment/closure plan, all of . the accumulated solid waste at the site will be removed and will be properly recycled or disposed of-at permitted solid waste management facilities. Since the majority of the deposited materials are potentially recyclable and possess some level of economic value, it is expected that most of the'deposited materials;- will be recycled.Any materials that are determined to not be recyclable,will the transferred to a permitted solid waste management facility for disposal. More specifically: Materials Removal/Excavation: • All clean (i.e: unpainted/uncoated)ABC material.-will be excavated and crushed on-site using a mobile crusher that will reduce the ABC to a minus six-inch (<6") diameter material. .Once crushed to a <6" size-fraction, the clean processed rubble shall no longer be classified a"solid. waste", and as such may be used/reused as construction fill in any construction project. *NOTE: All unclean ABC (i.e.painted/coated)material,shall continue to be classified as a solid waste and shall be transferred.to a solid waste disposal facility. • All C&D waste materials will be removed from the site and transferred to a permitted solid waste management facility for processing and/or disposal. All clean wood waste will be excavated, screened and reclaimed as loam. All large pieces of un- decomposed.wood will be shredded and turned into a wood-chip mulch.material. Once shredded, the recycled clean wood materials shall no longer be classified a"solid waste", and as such may be used/reused as landscaping material. • All junk vehicles,equipment and metal debris will be removed and sold as scrap metal. I • During the clean-up/closure process, in order to methodically facilitate closure activities, a 5.4-acre staging area will be established in the central portion of the site in order to properly manage material sorting,handling,processing and preparation for transfer/recycle/reuse/disposal from the site. SITE ASSESSMENT A Comprehensive Site Assessment- ("CSA") will be performed during and after the clean-up/closure process at the site in -order to ascertain potential adverse environmental impacts at the site. At a "..minimum, the CSA will consist of the installation of a ground water monitoring network (i.e. one up- -gradient well three down-gradient wells) to ascertain whether there have been any adverse.impacts to the ground water as a result of the.unpermitted solid waste disposal site, and conducting confirmatory soil sampling/analysis from the described-waste accumulation and excavation areas to ensure that there are no residual impacts:at the site after the excavation/renioval process. In addition; sampling/analysis of certain ..excavated and processed materials (i.e. soils, loam, ABC) will be performed to determine their fate (i.e. recycling,reuse or disposal): Since it has been proposed that'after the site has been cleaned-up, it may be -developed for .residential housing, applicable.regulatory contamination standards for this the clean- up/closure and.post-closure development of.the site .are contained at 310 CMR 19.0.00 and'310 CMR 40.0000(i.e.:"S-1"and"GW-1").. More specifically: ...Soils and Materials Sampling/An!lysis: i ` During the site clean-up/closure process, there will be several types of soils/materials sampling/analysis ..activities that will,be performed. In regards to the "clean-up" process, there are basically three (3) categories of soils and materials that will be sampled//analyzed: surface soils, excavated soils/materials, j . and basal soils. More specifically: Surface Soils: Surface soils that will be sampled/analyzed will consist of all land surface areas that show or indicate potential contamination that may have been caused by the storage of solid.waste(Le.' junk vehicles, equipment,;appliances,•and general solid waste. The sampling of these surface-soils -shall be determined and conducted on case-by-case.basis that will be.determined upon the removal of the "stored" waste materials. One of the predominant criteria than will--be-used to determine whether:soil-sampling.sfi41T be,performed;will be the,presence;of'Visual staining or discoloration of- the sufcial soils or.the presence of noticeable odors: More specifically: • Each surface soil area that has been determined to warrant sampling/analysis shall consist of four(4)grab samples that will be composited into one(1)composite sample for that location. • Upon.the findings of the chemical analysis, any soil-sample that exceeds any chemical parameter in excess of an existing background level or an applicable environmental standard - will'be stockpiled in the 5.4-acre staging area where it will await off-site transport for off-site recycling or disposal. • At. the conclusion of the clean-up process, the stockpiled materials will be re- sampled/analyzed in order to determine the fate of the stockpiled soils....At a minimum, this soil stockpile shall be sampled/analyzed at a frequency of at'least.one (1) sample_for every five-hundred cubic-yards(500 yds3). • Upon the findings of the chemical analysis of the soil-stockpile, any soil-sample that exceeds •° any chemical parameter in excess of existing background levels, will be transferred.to an appropriate permitted recycling/disposal facility. - f Excavated Soils/Materials: All excavated soils and materials (i.e.*ABC rubble and wood waste)shall be-sampled/analyzed in order to determine their-recycling/reuse potential and fate. In each case,the sampling analysis -shall be performed after the excavated materials have been processed. More specifically: _ ABC Rubble - After the ABC rubble..has been excavated, it shall be.separated into two types: clean and painted/coated'. 'The "clean ABC rubble will be crushed using a mobile crusher and reduced into a <6" diameter size-fraction construction fill material. All "painted/coated" ABC rubble will 'be stockpiled. The.."painted/coated" ABC rubble will be sampled/analyzed to determine whether the paint/coating constitutes the rubble is a hazardous waste or an asbestos - -containing material. In either case, the "painted/coated"'.ABC rubble will be transferred to an appropriate permitted solid waste disposal facility. Wood Waste - After the wood waste has been excavated, the material will be screened.using'.. mobile screening.equipment. The screening activity-will take place in the 5.4-acre staging area. The screening process will separate the excavated wood waste material into two (2) size-fraction materials:the"unders" (i.e. loam-type material), and the"overs" (i.e.residual materials including rocks, large-pieces. of un-decomposed wood waste, and residual waste). The "unders" (i.e. screened loam-type material) will be stockpiled. The stockpiled loam-type material will be sampled/analyzed .in order to determine the chemical make-up of the material as well as determine whether the material contains any chemical parameters that are in excess of applicable standards. The sampling/analysis.of the loam-type stockpile will be the same as the other stockpile area, in that at a minimum,the loam stockpile shall be sampled/analyzed at a frequency • of at least one (1) composite sample for every five-hundred cubic-yards (500 yds3), with each composite sample consisting of four(4)grab samples. The"overs"will then be further separated: large un-decomposed wood, rocks and waste (e.g.tires,metal, etc). The large wood material will be chipped/shredded into a mulch-type material that (after appropriate sampling/analysis)will be transferred to a permitted composting operation, the rocks will be left ozi-site as fill, and-the residual "waste" will be transferred to a permitted solid waste disposal facility. If at any time - during the material separation process it is discovered or shown that the excavated separated materials. display a -potential for contamination' (i.e. color, _odor etc), appropriate sampling/analytical/remediation measures shall be implemented. Basal Soils: After all of the buried materials have been excavated, processed and stockpiled the- underlying basal soils will be sampled/analyzed in order to.ascertain whether there are any residual . adverse impacts from the historical burial of the-materials. Presently there-are two predominant areas of such solid waste burial at the site:ABC rubble and wood waste. More specifically: • At least one composite basal soil sample shall be taken for every 2;000 square-feet of excavated area. Each such composite basal soil area shall consist of four (4) grab samples. within each 2,000-ft2 area. • Upon the findings of the chemical analysis, any soil-sample that exceeds any chemical parameter in excess of existing background levels or applicable standards, additional excavation, sampling/analysis and/or remediation will be required until it is determined that the excavation area is sufficiently.remediated. •° All such excavated soils/materials that are sampled/analyzed and found to be in excess of - applicable standards shall be stockpiled for off-site recycling or disposal. . 5 Ground Water Assessment/Monitorinz: The CSA will include the installation of a ground water monitoring network that will consist of one (1) up-gradient-Well and three(3) down-gradient wells. • Pursuant to the provisions of 310. CMR 19.150, once the ground water monitoring network has _ been established, the monitoring wells will be sampled/analyzed in accordance with the procedures and requirements contained at 310 CMR 19.132(1) and the Manual. For purposes of assessing and characterizing:the site, this ground water monitoring shall be performed on a quarterly-basis(i.e.4x/year) over a one-year(1-yr)year period with the analytical results reported to MassDEP accordingly. • At the conclusion of the assessment period (i.e. 1-yr), a CSA report shall .be prepared and submitted to MassDEP for review. • Based. on.the findings of the assessment process, additional remediation activities shall be performed as required*b:MassDEP to remediaie/abate any adverse impacts at the site. r • Based on the findings of the ground water assessment, continued ground water monitoring shall - be performed on a semi-annual basis (i.e.2x/year). CSA REPORT and CLOSURE CERTIFICATION At'.the conclusion of the clean-up/excavation process and after the performance of all required sampling/analysis as described above; a draft BWPSW24-CSA report shall be prepared'and submitted for review. Based on MassDEP's review of the report, a final CSA determination will be rendered whether additional assessment or remediation activities at the site will be necessary. Predicated on the CSA findings and MassDEP's review of the CSA report, should it be determined that the site has been completely cleaned-up-and remediated, a BWPSW43 Closure Certification application shall be prepared and submitted for review. Once all solid waste has been removed from the site and properly disposed, and MassDEP has been determined that the site is clean and has been completely remediated,the site shall no longer be classified as a dumpsite or a solid waste management facility. As a result,the site shall no longer be applicable to the regulations 310 CMR 19.000. PROVISIONAL APPROVAL As a result of its review of the submitted information, and pursuant.to its authority granted under MGL c.l 11, §§150A& 150A1/2 and the regulations 310 CMR 19.000,MassDEP hereby issues this.Provisional Approval *of the CAD plan for the referenced unpermitted dumpsite. This provisional approval of the closure plan is subject to the following provisions: 1. Notification: The owner/operator shall notify MassDEP in writing upon--commencing the implementation of the closure plan and the solid waste excavation/disposal activities. 2. Compliance with Plan: There shall be no deviation from this.approval without.prior written approval of MassDEP. I s 6 • 3.... Standard Conditions: Pursuant to the provisions of 310 CMR 19.043, the owner/operator shall comply with the requirements contained therein (i.e. duty to comply, inform, mitigate, etc.) regarding -the implementation of the CAD plan, and shall comply with all other applicable regulations,requirements and the terms of this provisional permit. 4: Oversight: A-licensed Massachusetts Professional Engineer or equally experienced individual knowledgeable in the field of solid waste shall oversee all work related to the implementation of the closure plan; 5... Site Security: Pursuant to the provisions of 310 CMR 19.130(23), the site shall at all times'be equipped with a locking gate in order to guard against unauthorized access. 6. Waste Material Segregation: During the clean-up/closure process, the owner/operator shall (at their discretion) segregate certain recyclable materials from the excavated materials. Should any such materials segregation occur, appropriate identification and documentation thereto shall be conducted in order to properly document the fate of the excavated materials, albeit: disposal, recycling or on-site use. .7. ..Hazardous Materials: During the solid waste excavation process, should hazardous materials, as defined by 310 CMR 19.006, 310 CMR 30.000 and/or 310 CMR 40.0000, be discovered at any time, the owner/operator shall implement whatever measures necessary to protect the public health, safety, welfare and the environment. 'At a minimum, the Health and Safety -Plan ("HASP") that was included in the CAD application shall be implemented and a licensed - hazardous waste clean-up contractor shall be contraete;d.to perform whatever abatement actions deemed necessary. The owner/operator shall also promptly notify MassDEP both by telephone as well as in writing within twenty-four hours(24-hrs)of the"discovery". S.. Initial Site Assessment ("ISA"): Althougha formal ISA has not et been performed for the site Y -the information that is required under the ISA process (i.e. site description, site history, and site hydrology/geology/hydrogeology) shall be gathered and submitted as a component of.the CSA reporting; Refer to.Condition#I I (below). •9.- Ground Water Monitoring Wells: Although it is typically required that the installation of a ground water monitoring network be performed prior to the implementation of a site clean- up/closure, in this circumstance and as described in the application,the installation of the ground water monitoring well network "shall be performed concurrently with the site clean-up/closure activities. Accordingly, it is expected that the proposed ground water monitoring well network shall be installed and shall have been sampled/analyzed by the time that-the clean-up activities at the site have been completed. Accordingly,the owner/operator shall comply with the following: • The owner/operator shall install the ground water monitoring wells as soon as possible. • The owner/operator shall notify MassDEP when the ground water monitoring wells will be installed, developed and readied for sampling. • The owner/operator shall provide MassDEP with certified plans documenting the installation of the ground water monitoring wells within thirty (30) days of completing their installation. . - • The owner/operator shall sample the ground water monitoring wells within thirty (30) days after their installation in accordance with the requirements and procedures contained at 310 CMR 19.132 and the Manual, and shall report the analytical results to MassDEP accordingly. • For purposes of the site.assessment process,the owner/operator shall perform at least four .(4)consecutive rounds(i.e.sampling/analytical events)of ground water monitoring. • The owner/operator shall continue to perform ground water monitoring on a quarterly basis (i.e. 4x/yr) in accordance with the assessment process pursuant to 310.CMR 19.150 and 19.132, until the environmental characterization of the site has been fully determined. NOTE: After the clean-up of the site has been completed (i.e. all waste removal) and at the conclusion of the site assessment process (i.e. 4 consecutive rounds of samples over a 1-year period), and based on the findings thereto, a long-term routine ground water monitoring schedule will be established. At a minimum, routine ground water monitoring shall be performed on a semi-annual basis(i.e.2x/yr). • The findings of`-.the four (4) consecutive rounds`tl.e. sampling/analytical events) of ground water monitoring shall be incorporated and included as a component of the CSA report.Refer to Condition#11 (below). 10. Confirmatory Soil Sampling/Analvsis: At the conclusion of the solid waste clean=up/removal process;the owner/operator shall take an appropriate number of*base-soil samples for chemical analysis in order to determine whether there are any adverse residual impacts at the site from the solid waste-burial areas. In the event the chemical analysis of the base-soils sampling from the excavation areas show residual adverse impacts, additional excavation and/or remediation activities shall be implemented. The findings of the soil-sampling/analysis shall be incorporated and included as a component of the CSA report. Refer to Condition#11 (below). 11. Comprehensive Site Assessment("CSA"): At the conclusion of the solid waste clean-up process and after performing the required four (4)'consecutive rounds of ground water monitoring (i.e. sampling/analytical. events), the owner/operator shall prepare and submit a BWPSW23 Comprehensive Site Assessment CSA deport application in accordance with the requirements established at 310 CMR 19.150,for MassDEP review. 12. Closure Certification Report: Within sixty (60) days of MassDEP determining that the site has been cleaned-up/remediated (based on the results of the soil sampling/ahalysis and MassDEP's review of the CSA report), the owner/operator shall submit a BWPS'�V43 Closure Certi ication Report. The Closure''Certification Report shall include the analytical results of the base:-soil -- sampling, as well as copies of any solid waste disposal receipts and/or any associated material manifests or Bills of Lading regarding the disposition of the excavated materials. 13. Nuisance Conditions: All work associated with the closure process (i.e. excavation/disposal) shall not cause or contribute to a public nuisance condition or an adverse environmental impact to the public health or the environment as a result of odors, dust, noise or an unpermitted discharge of contaminants beyond the limits of the landfill/site. The owner/operator shall implement whatever measures necessary to prevent/abate a nuisance condition including ceasing all activities at the,dumpsite. In the event a.nuisance condition occurs, the owner/operator shall promptly notify MassDEP as to the issues or circumstances which caused/contributed to the nuisance/adverse impact and describe the abatement measures that were or will be.implemented. 8 PERMIT Llli 1TATIONS This provisional approval of the closure plan is limited to solid waste issues at the subjecttreferenced site as described herein and does not relieve the owner/operator of the need to comply with all other applicable local, state or federal laws, regulations and requirements. This provisional approval also does -not relieve the owner/operator of their obligation to comply with the referenced#ACO-BO-E0021, dated June 30,2000, except as modified thereto. RESERVATION OF RIGHTS MassDEP shall have the authority to, without prior notice, periodically enter and inspect the site to determine compliance with applicable regulations and the terms and conditions of this permit. MassDEP reserves the right to modify, suspend or revoke this permit in order to protect the public health, safety, welfare or the environment. APPEAL MassDEP has issued this provisional approval pursuant to its authority granted under M.G.L. c.111, §§150A and 150A1/2, and the regulations 310 CMR 19.000. Any person aggrieved by this decision may file an appeal pursuant to M.G.L. c.30A, §14. An appeal must be commenced no later than thirty (30) days.,f'rom the date of this provisional approval. Notice of an action or proceeding to appeal, including a statement-of reasons:thereof, shall be served on MassDEP upon commencement of the appeal. In the event of an appeal, MassDEP reserves the right to reopen the review process, supplement the record and modify the plan approval. All correspondence-regarding this matter should reference Transmittal Number#W097656. Should'there be any questions regarding this matter, please contact MassDEP at the letterhead address or telephone me at(508)946-2833 or Robert Johnson at(&WasteManagement avi Section E/RHJ/rr BARNSTBI/Gifford/CAD-provapvl fc: Board of Selectmen Town Hall Barnstable,Na-02601 Board of Health Town Hall Barnstable,MA 02601 Fire Department .` Town Hall Barnstable,MA 02601 9 }� fc: Zoning Board of Appeals Town Hall Barnstable,MA 02601 Board of Selectmen 130 Route 130 Sandwich,MA-02563 .. Board of Health 16 Jan Sebastian Drive Sandwich,MA 02563 cc: SITEC Environmental In . 769 Plain Street-Unit Cc Marshfield,MA 02050 ATTN-R. Quinn ec: DEP-Boston AT TN: J. Doucett 09%17/2007 03:47 5083625344 BRUCE P GILMORE ESQU PAGE 01 V6 BRUCE P. GILMORE 2n� ;ta , 7ii 3 53 ATTORNEY AT LAW 1170 ROUTE 6A WEST BARNSTABLE, MA 02668 (508)362-8833 FAX: (508)362-5344 Walling Address PO Box 714 West Barnstable, MA 02668 TO: Tom Perry FIRM: Barnstable Town Hall RE: Barn table et A v. Ke es et al DATE: September 17, 2007 FROM: Bruce P. Gilmore NO. OF PAGES (including this page): 8 MESSAGE/COMMENTS Tom: Here's the decision on the Keyes matter. Thanks again for. your cooperation and help. Very truly yours., Bruce P. Gilmore PLEASE CALL US IMMEDIATELY IF ALL PAGES ARE NOT RECEIVED. wrSw,R,,t�nx FAX NO: 508 90-6230 09/17/2007 03:47 5083625344 BRUCE P GILMORE ESQU PAGE 02 1 1 COMMONWEALTH OF MASSACHUSETTS 2 BARNSTABLE, SS. SUPERIOR COURT Case No. 05-530 3 4 TOWN OF BARNSTABLE, et al, Plaintiffs, 5 VS. 6 CHRISTOPHER R. KEYES, et a1, 7 Defendants . g 9 JURY-WAIVED TRIAL 10 EXCERPT OF PROCEEDINGS 11 RULINGS AND FINDINGS BY THE COURT 1 13 BEFORE THE HONORABLE DANIEL A. FORD, ASSOCIATE JUSTICE OF THE SUPERIOR COURT 1 September 10, 2007 15 Barnstable, Massachusetts 1E Second Session 1 IE APPEARANCES 1 FOR THE PLAINTIFFS: BRUCE P. GILMORE, ESQ. 2C FOR THE DEFENDANTS : JAMES W. STATHOPOULOS, ESQ. 2 2 2 2 .cinaa ,r. a4, csq, �� , c - off;�;�co, pepACr ?_0. 1Tox 1023 - TarrtaIable, c7&5� 02630 508/37S-6667 09/17/2007 03:47 5083625344 BRUCE P GILMORE ESQU , PAGE 03 2 1 Barnstable, Massachusetts 2 September 10, 2007 .3 At about 11:45 a.m. 4 5 * * * EXCERPT OF PROCEEDINGS 6 7 THE COURT: Based upon the credible 8 evidence that I 've heard, I find that the 9 defendant Christopher Keyes is the president of 10 Gifford Brothers Sand and Gravel Inc. and is at 1 least a part owner of the stock in that 12 corporation. 13 And I find that the corporation, Gifford 1 Brothers Sand and Gravel Inc. , is the owner of 15 the real estate in question located at 810 Wakeby 1E Road here in, the town of, Barnstable. 10111 1 It appears from the testimony that Mr. Keyes 1 acquired the interest in Gifford in 1995 or is thereabouts. 2C Mr. Keyes is also the owner of the stock of 2 C. Keyes Contracting Inc. , which is the other 2 corporate defendant apparently currently still 2 involved in this case. 24 It is clear to me that the decision of the linda. X. , CSJZ, ��J�, Cal - official court Teporier . �ox 1023 - 1`r3arnsWJ6, JM 02630 S08/375-6667 09/17/2007 03:47 5083625344 BRUCE P GILMORE ESQU PAGE 04 3 1 Appeals Court which is dated October 28, 2002, is 2 still in full force and effect and it is clear 3 from that- decision in which Gifford Brothers Sand 4 and Gravel Inc. was the party in interest; as a S matter of fact, was the appellant; 6 That the property in question is in a residential zone; that the only permitted uses on 8 the property are single-famia_y residential use 9 and automobile salvage . The automobile salvage 10 use was the result of a variance that was granted 11 I believe in 1964 . I don' t recall what the . 12 Appeals Court wrote correctly. 13 But, in any event, it appears to me as 14 though the decision of the Appeals Court is 1 certainly binding on the defendant Gifford 16 Brothers Sand and Gravel Inc . and it is also 1 binding on those in privity to that corporation. 1 And I find and rule, based upon the 1 testimony I've heard, Mr. Keyes and his 2C corporation, C. Keyes Contracting Inc. , are, in 2 fact, in privity of Gifford Brothers Sand and 2 Gravel Inc. and therefore are collaterally 2 estopped from challenging the holding of the 24 Appeals Court . X nda, .C. 54 CST, T )9R, Cal - Of}� Court JZeporter T.0. Tox 1023 - rBarnale, 02 3 S08/37S-6667 09/17/2007 03:47 5083625344 BRUCE P GILMORE ESQU PAGE 05 4 1 It appears to me that after the decision of 2 the Appeals Court, Mr. Keyes and other entities 3 in which he is involved have conducted -the 4 commercial activity on the property, and, as a 5 matter of fact, based upon the testimony of 6 Lieutenant Cameron, it appears to me that in October of 2004 and August of 2005 individuals on 8 the property sold truckloads of topsoil for money to police officers working in an undercover 10 capacity. 11 Mr. Keyes was aware of the fact that it 12 happened in October of 2004 , had a very 12 unpleasant confrontation with the ..lieutenant 14 concerning the events that took place on that day 1E and the same thing reoccurred on August 26 of 1E 2005 . So there was clearly a violation of the 1 law in that respect and it appears to me in other 1E respects as well . The photographs have convinced is me that there was an ongoing commercial operation 2C on the property which was in violation of the 2 zoning bylaw and the decision of the Appeals 2 Court . 2-1 It appears to me that there is also now. an 24 order in effect from the Department of .cinaa .�. a , cs , �g'R, cab - Offer cou-d �eprfcr 9.0. Tox 1023 - Tarnstab , 34,-R 02630 So 0 INS-6667 09/17/2007 03:47 5083625344 BRUCE P GILMORE ESQU PAGE 06 5 1 Environmental Protection, .Exhibit Number 1 in 2 this case, which has ordered Mr. Keyes and 3 Gifford Brothers Sand and Gravel Inc. to commence 4 certain cleanup activity on the property and this 5 Court will not attempt to interfere with that 6 order. 7 Based upon that evidence, the Cou`rt' hereby 8 will enter a permanent injunction barring these 9 three defendants, Christopher R. Keyes, Gifford 10 Brothers Sand and Gravel Inc . and C. Keyes 12 Contracting Inc. , prohibiting them from 12 conducting any commercial activity on the 13 property other than the automobile salvage 14 business and the cleanup activity which has been 15 ordered by the state Department of Environmental IE Protection. 1 That order will issue today. 1 (End of requested excerpt of 1 proceedings . ) 2 2 2 2 2 .Chula ,f. , CSJZ, JZ I DR, C31 - OfTidal Court Teporlcr J'.0. r3i ox -r023 - 1T arm-&ble, 02630 S081375-6667 09/17/2007 03:47 5083625344 BRUCE P GILMORE ESQU PAGE 07 6 1 CERTIFICATE 2 COMMONWEALTH OF MASSACHUSETZ'S) SS. 3 COUNTY OF BARNSTABLE ) 4 5 I, Linda L. Kelly, Official Court Reporter 6 within and for the Commonwealth of 7 Massachusetts, do hereby certify upon my 8 signature that the foregoing transcript of 9 proceedings constitutes a true and accurate 10 transcription of proceedings as taken 11 stenographically by me at the time and place 12 aforementioned .to the best of my knowledge, 13 skill and ability. 14 I further intend and affirm that any is unauthorized reproduction's of said transcript do 1E not constitute an official record of said 1 proceedings as certified by this reporter. 1 r1 2 LINDA L KELLY o Official Court Reporter �-0 2 Certified Shorthand Reporter. Registered Professional Reporter N 2 Certificate of Merit C> . C 2 Date: .9/11/07 Linda .C:`J�lly, CSJ�, JZ J�JZ, Cc'Al - Of f 6d Court T eporter 9).0. 13ox 1023 - lT arndaNe, JW�iZ 02630 S081VS-6667 . 09/17/2007 03:47 5083625344 BRUCE P GILMORE ESQU PAGE 08 Commonwealth of Massachusetts County of Barnstable The Superior Court CIVIL DOCKET# BACV2005-00530 Town of Barnstable, Town of Barnstable Building Commissioner and Zoning Enforcement, Barnstable Board of Health, vs. Christopher R Keyes, Gifford Brothers Sand and Gravel Inc, C Keyes Contracting Inc. JUDGMENT ON FINDING OF THE COURT This action came on for trial before the Court, Daniel A. Ford, Justice, presiding, and the issues having been duly tried, and findings having been made on the record, It is ORDERED and ADJUDGED: 'that the defendants, Christopher R. Keyes,Gifford Brothers Sand and Gravel, Inc., and C. Keyes Contracting Inc., are permanently enjoined and restrained from conducting any commercial activity on the property other than the automobile salvage business and the cleanup activity which has been ordered by the state Department of Environmental Protection. Dated at Barnstable, Massachusetts this 10th day of September, 2007. �CLucc . 'Cler k k Entered: 9/14/07 Copies mailed 09/14/2007 A true copy, Attost: e�djodcriv_i.vpa 542004 JUC£ind aei==' C ~— 09/17/2007 03:47 5083625344 BRUCE P GILMORE ESQU PAGE 09 Commonwealth of Massachusetts County of Barnstable The Superior Court CIVIL DOCKET#: BACV2005.00530 RE: Town of Barnstable et al v Keyes et al TO: Bruce P Gilmore, Esquire 99 Willow Street Yarmouth Port, MA 02675 NOTICE OF DOCKET ENTRY You are hereby notified that on 09/10/2007 the following entry was made on the above referenced docket: Judgment after finding of the Court for the plaintiff. (Ford, J.) Copies mailed 9/14/2007 Dated at Barnstable, Massachusetts this 14th day of September, 2007. Scott W. Nickerson, Clerk of the Courts BY: Nancy N. Weir - Assistant Clerk Telephone: (508) 375-6684 Disabled individuals who need handicap accommodations should contact the Administrative Office of the Superior Court at(617)788-8130 cudgencric 2.WPd 542004 judMd Dlydyka Giangregorio, Robin From: Weil, Ruth Sent: Tuesday,August 16, 2005 1:17 PM To: Giangregorio, Robin Subject: Gifford Dear Robin: Here's the revised synopsis: Gifford Brothers Sand & Gravel This business is located at 810 Wakeby Rd. It is identified on Map 013 Parcel 052 and is located in the RF (residential) zone and GP groundwater protection overlay district. An Appeals Court decision upheld the determination of the Building Commissioner and the Barnstable Zoning Board of Appeals that the only permitted use on the premises is single family residential use and junk yard, in full compliance with the terms of the previously issued special permit. The special permit expired with the deaths of William Gifford and Maynard Gifford,who have passed away. Accordingly, the only permitted use is single family residence. N , -Rug ' 16 05 11 :23a Barnstable Rssessing Div. 508-862-4722 p. 2 Ber, JL;c' r>b0 1f-°C"1 12 1 C'atit QUITCLAIM DEED HARRIE'T P.HAYWARD,Trustee of THE 0%"F.RLORD REALTY TRUST.u/dlt dated November 13, 1995,and recorded at Barnstable County Registry of Deods in Book 9028.Page 122.P.O.Box 425. Forestdale,PIA 02644, for consideration paid and in full consideration of an Agrectnont for Judgment in Barnstable Superior Court Action Dookat No.95-576,dated October 26. 1998, grant to Gifford Brothers Sand& Gravel,Inc.,a Massaehusexts Corporation having its principal place of business at 44 Asa Meiggs Road,Sandwich,Barnstable County,Massachusetts 02563. WITH QUITCLAIM COVENANTS Ninety-tine(990%)percent of all my right title and interest in and to the,land,with the buildings thereon, located at ftkebv Road Itt Lk p,slabfe!M'arstons ffill), Barnstable County, Massachusetts, bounded and described as follows: A certain piece of land and woodland in Newtown,Barnstable,Massachusetts, fornicrly the honicstcad of Joseph Landers, reference to deed rccordcd on ]:camber 18, 1857, at Barnstable County Registry of IDoods in Book 66,Pages 107 and 108. Containing twelve to fourteen acres- The above-described premises are conveyed subject to and with the benefit of all rights, rights of way, easements,appurtenances,reservations and rwrictions of record insofar as the same arc now in force and applicable. For title sec dood recorded at Barnstable Registry of Doods in Book 9928,Pagc 127. WITNM m hand and seal this ` �' y � � day of-t'X-a) 1999. 'fill.OVERLORD REALTY TRUST by: IiA9R1!✓T P.HA) D.Trusters COMMONWEALTH OF.MASSACHUSITTS Bnrnstable,ss. 712< , 1999 Then personally appeared the above-named,HARRIET P. HAYWARD,and acknow�Cd�cd foregoing instrument to be her frcc act and deed as Trustee aforesaid,before mc, NOT RY PUBLIC •' • �*' / •�• My commission expires: Rug 16 05 11 : 23a Barnstable Assessing Div. 508-862-4722 p. 3 i<3K 1 F 4� I TRX11,1I E,CERTIFICATF 1,HARRIET P.TIAYWARD,being the present Trustee of THE OVlERWRD REALTY TRUST,under Declaration of Trust dated November 13, 1995, and recorded at Barnstable Cot►nty Registry of deeds in Book 9928,Page 122,do certify as follows: l. That I have been authorized by specific written direction of all the beneficiaries of said tnist to sign,to seal, to execute and to deliver to Gifford Brothers Sand& Gravel,Inc.,a deed relative to the real estate described in said deed for the consideration stated therein. 2- That all of the beneficiaries of t'ne trust are of full age and are not under any disability and have assented to convey said real estate to GiWord Brothers Sand & Gravel,Inc. for said consideration. 3. That said Tnist is in full force and effect and has not been altered, amended, rescinded or revoked in any manner other than amendments recorded in Barnstable County Registry of Deeds prior to the date of this certificate. WITNESS my hand and seal this 7 � day of THE OVERLORD REALTY TRUST Z4 by: HARRIET 1P.HA ARID,Trustee i COMMONWEALTH OF MASSACHUSl:ITS Barnstable, ss. f� ? . 1999 �• Then personally appeared the above named, HAIRRIET P. HAYVu+4?AL, :anti., acknowledged the foregoing instrument to be her free set and deed as Trustee aforesA4b't'6 tnc,' My commission expires: 161 r BARNSTABLE r COMMONWEALTH OF MASSACHUSEiTS APPEALS COURT CLERK'S OFFICE 1500 NEW COURT HOUSE B OSTON, M ASSACHUSETTS 02108 (617) 725-8106 October 28 , 2002 Ruth J. Weil, Esquire Town of Barnstable 367 Main Street, New Town Hall 0C1 3 0 20102 Hyannis, MA 02601 RE : No. 2000-P-0701 GIFFORD BROTHERS SAND & GRAVEL VS . BARNSTABLE ZONING BD. OF APPEALS TOWN OF NOTICE OF DOCKET ENTRY Please take note that on October 28 , 2002, the following entry was made on the docket of the above-referenced case : Decision: Rule 1 : 28 (GS KN DO) . The judgment of the Superior Court is modified by striking the clause in paragraph 1 that begins with "except" and ends with 111956 . " As so modified, the judgment is affirmed. " *Notice . (See image on file. ) Very truly yours, The Clerk' s Office Dated: October 28 , 2002 To : Gregory M . Downs, Esquire James W. Stathopoulos, Esquire Ruth J. Weil,- Esquire - o Commonwealth of Massachusetts Appeals Court for the Commonwealth At Boston, In the case no. 00-P-701 GIFFORD BROTHERS SAND AND GRAVEL, INC. Vs. ZONING BOARD OF APPEALS OF BARNSTABLE. Pending in the Superior Court for the County of Barnstable Ordered, that the following entry be made in the docket : The judgment of the Superior Court is modified by striking the clause in paragraph 1 that begins with "except" and ends with 111956 . " As so modified, the judgment is affirmed. L 2T—E• By the Court', The original of the within rescript will issue in due course,pursuant to iA.R.A.F.23 A'N LS COURT ( h1lQ t,� 1 v�a0�,z- ,Clerk Date October 28, 2001 i COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 00-P-701 A GIFFORD BROTHERS SAND AND GRAVEL, INC. VS . ZONING BOARD OF APPEALS OF BARNSTABLE. MEMORANDUM AND ORDER PURSUANT TO RULE 1 : 28 Gifford Brothers Sand and Gravel Inc . (Gifford) appeals from a judgment of the .Barnstable Superior Court holding that Gifford must limit its excavation and fill-processing use of the property on Wakeby Road to the five acre area. in such use as of 1956 . The zoning board of appeals of Barnstable (board) has filed a cross appeal arguing that this activity was not a legal preexisting nonconforming use under the zoning by-law enacted in 1929, and therefore no such continued activity is proper. We conclude that the Superior Court erred in applying the 1956 zoning by-law rather than the applicable 1929 zoning by-law. Background. Gifford is the current owner of the property at issue, an irregularly shaped 16 . 6 acre lot located at 810 Wakeby Road in Marstons Mills, a village of the town of Barnstable. The town enacted its first comprehensive zoning by-law in 1929, at which time the property was zoned for residential use. The second zoning by-law at issue, enacted in 1956, added a business district but the •Gifford property continued to be zoned only for residential purposes . 1 In spite of being zoned for only residential use, the property has been used for various purposes over the years . When Lorenzo Gifford acquired the property in 1945, the property was woodland, neither in commercial nor residential use. By 1947., the Giffords had begun commercially removing sand and gravel from the property. Until 1995, the sand and gravel operation occupied only a small portion of the property, at most five acres, and the Gifford' s primary business on the property was the repair and salvage of automobiles, for which a use variance was secured from the board in 1964 . 1 (A. 405, 426, 658) . In 1996, a contractor for the town of Barnstable contracted with Gifford to use fill from the Wakeby Road property to cap the Barnstable landfill . Before Gifford began harvesting this gravel, the Barnstable building commissioner advised the town. council that the gravel operation was a lawful preexisting non- conforming use.2 Thereafter, mining and excavation activities were increased and the buffer of trees between the excavation and the boundary of the property was stripped away, exposing the 1 In addition to the metal salvage operation, portions of the property along the western border were frequently leased to local businesses for the storage of heavy equipment, tools, trailer bodies, and boats . 2 "Please be advised that the Gifford (g] ravel pit on Wakeby Road is a pre-existing non-conforming use, and as such is lawful from a zoning perspective. In arriving at this conclusion, we talked to several people with early roots in the area; and interviewed the owner. No information was received to the contrary. " (A. 674) . 2 gravel pit to the residential neighborhood. Once' the. contract to provide the fill was completed, Gifford began to use the property in connection with a landscaping and loam processing 'business . The premises quickly became a repository for brush stumps, concrete and demolition debris . - After receiving several complaints about the constant noise, dust and fumes resulting from the various operations conducted on the property, the Barnstable building commissioner issued a cease and desist order directing Gifford to stop using -the property as a gravel pit and to stop processing fill and depositing fill, brush and clippings . Gifford appealed the order to the board, which held appropriate hearings and then upheld the building commissioner. Thereafter, Gifford sought relief from the order in Barnstable Superior Court . The Superior Court concluded that the 1956 zoning by-law was applicable rather than- the 1929 by-law, which it found to run afoul of the zoning enabling act of that era' as illegal spot , zoning, and so held that Gifford has the right to mine that portion of the site appropriated to gravel mining as of '1956, the southernmost five acres of the site. ' The zoning enabling act applicable at. that time was inserted by St . 1920, c . 601, codified as G. L. c. 40, §H 25-30B, since repealed by St . 1954 , c . 368, A 1, and now appearing in Chapter' 40A; see also Opinion of the Justices to the House of Representatives, 234 Mass . 597 (1920) . 3 Both parties have appealed this order.' The board argues that the 1929 zoning .by-law. is not spot zoning and was , .the correct by-law to apply. Under this. theory, excavation and mining activities on the property were never legal because no zoning relief for such use was ever issued, nor were such activities taking place on the property in 1929 when the by-law took effect which would have given them status to continue as a legal preexisting nonconforming use. Spot zoning. Spot zoning occurs where a local .legislative body grants a zoning classification to a piece of land that singles out that particular parcel "for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot, " Rando v. North Attleborough, 44 Mass.. App. Ct . 603 , 606 (1998) , quoting from Whittemore v. Buildina Inspector of Falmouth, 313 Mass . 248, 249 (1943) , or when the zoning classification, without a rational planning objective, makes the parcel subject to more restrictive regulation than that of neighboring property. National Amusements, inc. v. Boston, 29 Mass . App. Ct . 305, 312 (1990) . "Such zoning constitutes a denial of equal protection under the law guaranteed by the State ' The board has also appealed other rulings which .are dependant upon the application of the 1956 zoning by-law. As we -conclude that the 1929 by-law was applicable, we do not reach. these arguments . 4 f and Federal Constitutions, and violates the uniformity requirement of c . 40A, ­ § 4 . " -Rando, supra at 606 (citations and internal quotation marks omitted) . The 1929 by-law was a complete by=law enacted pursuant to the then applicable zoning enabling act . - The 1929 by-law applied to the entire town and was an effort to preserve the residential nature of the town while at the same time complying with the requirement that existing structures and uses be given legal nonconforming status . See St . 1920, c . 601, § 7 . The 1929 by- law provides that all property in Barnstable is .in a residential zoning district unless a permit is afforded otherwise . This type of zoning is permissible . See Gage v. Egremont, 409 Mass . 345, 348 (1991) (general laws do "not direct that every municipality adopting a zoning by-law have more than one zoning district or that such a by-law permit business uses as of right in some part i of the municipality" ) . The 1929 zoning by-law is not spot zoning and should have been applied by the court below. - . When the 1929 by-law is applied, all commercial , activity, i with the exception of automobile salvage, is prohibited on the i property. The property was never subject to any special "existing use" status conferred by the applicable zoning enabling act, because in 1929 the property was woodland; nor was zoning relief ever issued for commercial use other than the salvage of automobiles . Without zoning relief the property may not be, and �7 5 never legally was, used as a gravel pit or as a place to commercially process fill, or for depositing fill, brush or clippings . The onlypermitted uses on the , p property are single-family residential use and automobile salvage, consistent with the terms of the previously issued use variance and special permits . Having so found, we need not address the remaining issues brought on appeal . The judgment of the Superior Court is modified by striking the clause in paragraph 1 that begins with "except" and ends with !11956 . " As so modified, the judgment is affirmed. So ordered. By the Court (Gelinas, Kantrowitz & Doerfer, Clerk Entered: October 28, 2002 6 i � I Article 10. The Town of Barnstable is hereby divided into districts, subject to : .J the provisions hereinafter stated, to be known respectively as non-residenc districts and residence districts as follows: Non-residence Districts subject to change as hereinafter provided, shall comprise all landsfwhich at the time this By-law beco;nes effective are used for any business or industry other than farming, truck gardening, the growing of trees, shrubs, vines or plants, and the raising of animals, Residence Districts, subject to change as hereinafter provided,. shall comprise all areas not included in Non-residence Districts. Subject to the .provisions hereinafter stated, no parcel of land lying in any Residence District and not at the time this By-law .becomes effective devoted to any business or industry, other than those hereinbefore- specified shall hereafter be used for any business or industry, or for any purpose except for residence or purposes .of buildings, appurtenant thereto, or for churches, schools and similar non-commercial or non-industrial buildings, and no permit shall be issued for the erection, alteration or coversion of .any building for or to any such prohibited use upon any such .parcel , except as hereinafter provided. A permit may be issued for the erection in any residence district of a building for the purpose of any business or industry or for the alteration or conversion of a building in such district for or t_o such purposes, if the Selectmen shall after public hearing so order, provided that no such permit shall be grante except upon written application and after a public .heaiing of parties interested and consideration of their evidence by the Selectmen; notice of . said hearing being given by publication of the time and place thereof in a local newspaper not less than two weeks before said hearing, the expense of such publication to be borne by the petitioner.' After such hearing the 1 Selectmen shall render a decision in writing, stating the decision and the reasons therefor and file the decision with the Town Clerk and send a copy thereof, to the applicant . I hereby certify, that the foregoing by-law .yeas adopted by the Town of Barnstable on June 14th, 1929 , and approved by Joseph E. Warner, Attorney 0eneral , on July 2 , 1929 . Attest: Clarence I.T. Chase; Town Clerk. Town of Barnstable Planning Department Staff Report Appeal No. 1997-133 - Gifford Brothers Sand &Gravel Appeal of the Building Commissioner Date: December 05, 1997 To: Zoning Board of Appeals From: Approved By: Robert P. Schernig, Director Reviewed By: Art Tracz�ipal Planner Applicant:..............................�....Gifford Brothers Sand & Gravel Property Address.................7...810=Wakeby Road;MarstonsMills-,N Assessor's Map/Parcel................. 013 - 052 Area.............................................. 16.66 acres.....................Building Area: .....................................sq.ft. Zoning:...........................................RF Residential F Zoning District Groundwater Overlay....................GP-Groundwater Protection Overlay District Filed: Oct.20, 1997 Hearing: Nov. 19, 1997 Decision Due:Jan.28, 1998 Background & History: The property that is the subject of this appeal is a 16.66 acre lot located off Race lane at the boundary of the Town with Sandwich. This lot has had a history before the Board dating back to 1961. In Appeal No. 1961-41, William G. Gifford & Kenneth J. Barthel requested and were denied the ability to utilize the lot for the storage of used cars and used parts -a salvage yard. In the Boards decision on this request, it was cited that"Part of the area had been used as a sand pit" and that"there has been considerable dumping of brush and other debris on an adjoining parcel." Again Appeal No. 1964-18, L. Thatcher Gifford requested a use variance to permit the parcel to be utilized for the"salvage of vehicles and storage of used parts". That appeal was granted with four conditions as follows: 1. That the use of the land in the new location be restricted entirely to that area behind the screen of trees. 2. That only one building may be constructed for the use in connection with the salvage yard and such building must be located behind the screen of trees. 3. No trees are to be removed. 4. That the present location at Santuit be completely cleared of all materials within a reasonable time. In the granting of this use variance, it should be noted that the decision cited that the location is in a gravel pit and that the operations would be located "about 1,000 feet from the road and is located in a hollow with a screen of trees surrounding the front part of the lot." It should also be noted that this relief was a use variance and not a special permit for a non-conforming situation. Then in 1969, in Appeal No. 1969-17, William Gifford & Maynard Gifford sought and were granted a Special Permit for the extension of a non-conforming use by the removal of an existing building and construction of a new 30' by 30' building to include the sale of used auto parts and second hand vehicles. Within the amended decision, reference was made to the 1964 grant of a Use Variance. (No. 1964-18). Again it was cited that the salvage yard operations"would be located in the middle of the parcel surrounded by woods on three sides and the power line on the back." Town of Barnstable-Planning Department-Staff Report Appeal No. 1997-133 - Gifford Brothers Sand&Gravel Appeal of the Building Commissioner The restriction imposed in the amended decision read as follows; "...construction of a building to be used for the storage and sale of used auto parts and second hand vehicles to William Gifford, Maynard Gifford and Kenneth Borthel (tenant), to be restricted to that period of time during which the petitioners or the Tenant retain ownership of the present 16 acres parcel.' Staffs impressions of this relief is that it was, in reality, a modification of the Use Variance issued in 1964 and not an expansion of a non-conforming use because the use being granted appears to be related only to the salvage yard use and not the gravel pit use - if that use was indeed still occurring on site. Then in 1973, a Special Permit(Appeal No. 1973-5) was requested and was granted with conditions to permit a home occupation and service use (Section 1-6(b)) on the site. That permit was to allow William Gifford and his brother to operate a snow plowing business in the winter and a bulldozing business in the summer and to construct a garage for the equipment. In the application for this permit, under#7 State the present use of the premises was listed "Single Dwelling". No mention of the gravel operations was cited in this 1973 permit. Zoning Relief Requested: Today the applicant-Gifford Brother Sand & Gravel Inc. is before the Board, appealing the decision of the Building Commissioner in accordance with MGL Chapter 40A, Section 8. They are appealing the October 22, 1997, issuance of a Cease and Desist order of the Building Commissioner(see attachment-October 22, 1997 Building Commissioner letter). In that letter, the Building Commissioner informed the applicant"that the use of the property for a gravel pit, processing of fill, screening of fill, brushes and clippings or any similar use is in violation of Barnstable Zoning Section 3-1.4 - [Principal Permitted Uses in the RF Zoning District]." copies: Attorney for the Applicant-Gregory M. Downs Building Commissioner 2 OF 1ME�. BAMWABI$ MAIM � t6Jq. �0� pjEO MA'S e Town of Barnstable Zoning Board of Appeals Decision and Notice Appeal No. 1997-133 - Gifford Brothers Sand & Gravel Appeal of the Building Commissioner Summary........................................Upheld Building Commissioners Decision Applicant:.......................................Gifford Brothers Sand&Gravel Property Address..........................810 Wakeby Road, Marstons Mills, MA Assessor's Map/Parcel................. 013 - 052 Zoning:...........................................RF Residential F Zoning District Groundwater Overlay....................GP-Groundwater Protection Overlay District Background & History: The property that is the subject of this appeal is a 16.66 acre lot located off Wakeby Road at the boundary of the Town with Sandwich. This lot has had a history before the Board dating back to 1961. In Appeal No. 1961-41, William G. Gifford & Kenneth J. Barthel requested and were denied the ability to utilize the lot for the storage of used cars and parts-a salvage yard. In Appeal No. 1964-18, L. Thatcher Gifford requested a use variance to permit the parcel to be used for the"salvage of vehicles and storage of used parts". That appeal was granted with conditions. In 1969, Appeal No. 1969-17, William Gifford & Maynard Gifford sought and were granted a Special Permit for the extension of a non-conforming use by the removal of an existing building and construction of a new 30' by 30' building to include the sale of used auto parts and second hand vehicles. Within the amended decision, reference was made to the 1964 grant of a Use Variance. (No. 1964-18). In 1973, Special Permit No. 1973-05 was requested and granted with conditions, to a lot that was a portion of the original site, to permit a home occupation and service use(Section 1-6(b) of the 1973 Zoning Bylaw). That permit allowed William Gifford and his brother to operate a snow plowing business in the winter and a bulldozing business in the summer. Today the applicant-Gifford Brother Sand &Gravel Inc. is appealing the decision of the Building Commissioner in accordance with MGL Chapter 40A, Section 8. They are appealing the October 22, 1997, issuance of a Cease and Desist order of the Building Commissioner. In that letter, the Building Commissioner informed the applicant"that the use of the property for a gravel pit, processing of fill, screening of fill, brushes and clippings or any similar use is in violation of Barnstable Zoning [Ordinance] Section 3-1.4 -[Principal Permitted Uses in the RF Zoning District]." Procedural Summary: This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on October 20, 1997. A public hearing before the Zoning Board of Appeals was duly advertised and notices sent to all abutters in accordance with MGL Chapter 40A. The hearing was opened December 10, 1997, and continued to January 14, 1998, at which time the Board made its findings and its decision to uphold the October 22, 1997 Cease and Desist Order of the Building Commissioner. Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal No. 1997-133 - Gifford Brothers Sand&Gravel Appeal of the Building Commissioner Hearing Summary: Board Members hearing this appeal were Ron Jansson, Gene Burman, Gail Nightingale, Elizabeth Nilsson, and Chairman Emmett Glynn. Attorney Gregory M. Downs represented the applicant. Attorney Downs submitted a memorandum to the Board. He explained that the property is in litigation between co-tenants. The Cease and Desist from the Building Commissioner is addressed to a Trustee of one of the co-tenants. Mr. Downs represents the Gifford Brothers who are the primarily users of the sand and gravel pit. He submitted deeds to support standing before the Board. Attorney Downs gave a brief history of the property, stating that the sand and gravel pit has been used since the 1950s. He cited Variance No. 1964-41 which was granted for an auto salvage yard. In that decision is the statement "..the location in which the petitioner proposes to locate his business is in a gravel pit near Wakeby Road in Marstons Mills..." He cited that this confirms that the gravel pit was there in 1964. Mr. Downs reported that the property's sand and gravel resources were used in the capping of the town's landfill. He noted that in 1995, there was some question of use and there was litigation with the Town. In that litigation, an order from the Courts prevented the Town from interfering with the Gifford Brothers' taking of gravel and sand from the property. Attorney Downs cited the affidavits from William Gifford; Maynard Gifford; Patricia Gifford; and Bortolotti Construction, Inc., contained within his memorandum, stating that the sand and gravel operations was in existence since the 1950s. The Board asked for more specific information on the non-conforming aspects of the use noted that it is the petitioner's responsibility to establish that there is a legal, pre-existing non- conforming use, and that the use was not surrendered or abandoned during any period. Mr. Downs referred to a memorandum dated March 13, 1996, to the Town Attorney from the Building Commissioner, that stated, "Please be advised that the Gifford Gravel pit on Wakeby Road is a pre- existing non-conforming use, and as such is lawful from a zoning perspective. In arriving at this conclusion, we talked to several people with early roots in the area, and interviewed the owner. No information was received to the contrary." The Board clarified that it is not the Town's responsibility to establish the non-conforming use- it is the petitioner's responsibility to establish that the use as a legal pre-existing non-conforming use and that it has not been abandoned.. Attorney Downs replied that he has been trying to gather that information and may need to request a continuance of this hearing to allow him time to look for that data. The Board asked the Building Commissioner, Mr. Crossen, to address his memorandum of March 13, 1996, to the Town Attorney. Mr. Crossen stated that the memo was an internal only based on a question asked of him having to do with application of the general ordinances of the town regarding the removal of sand and gravel. Mr. Crossen explained that he feels there are two separate issues involved here. The first issue is the required permit to remove sand and gravel. The second issue is zoning. The memo had to do with the first issue and the capping of the landfill. When Mr. Crossen wrote the memo, there was no zoning challenge and he did not do any zoning research. Mr. Crossen does not consider the letter an administrative decision, but rather an opinion. Since the writing of that memo, there have been two zoning challenges on the subject property. The first challenge resulted in a Cease and Desist Letter dated May 9, 1997. The second challenge resulted in a complete Cease and Desist issued by letter dated October 22, 1997. The Building Commissioner cited that in May there was a complaint about noise and night activity from wood chipping and reprocessing being conducted on site. He visited the site and saw a screener, piles of fill that had been brought in, and brush from off-site. Basically, a loam and screening processing operation. That prompted the commissioner to issue the first Cease and Desist Order of May 9, 1997. On September 15, 1997, there was another complaint about the entire operation, including the sand and gravel operation. At that time Mr. Crossen looked into the entire operations of the site, reviewing town records, aerial photos, zoning information, and tax information. From that information he issued the Cease and Desist Order of October 22, 1997. 2 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal No. 1997-133 - Gifford Brothers Sand&Gravel Appeal of the Building Commissioner Town Attorney Robert Smith stated that the burden-of-proof is on the landowner/applicant to establish the legal, pre-existing non-conforming use. A statement and/or permit from the Building Commissioner is governed by Chapter 40A, Section 8. When a Building Commissioner makes a mistake, the burden is still on the applicant. The Board asked the Petitioner if he would come to some type of a temporary agreement regarding the use of the site should they continue this appeal. Attorney Downs replied that they are under a DEP Consent Enforcement Order requiring them to remove some of the materials from the site. He also noted that recently fill had been brought onto the site when they"hit" ground water during the excavations. The Building Commissioner presented aerial photographs of the site noting that from 1964 to 1968 not much had changed in terms of the cleared gravel pit area however, the 1995 photo shows much of the lot area was"carved out"for the sand and gravel operations. The Building Commissioner also showed how close the work is to the abutters' property and that the operation may have encroached onto neighboring lots. Mr. Crossen also showed a video of the area taken 12/10/97 showing the angle of repose on the bank is much steeper than engineering would recommend (2 to 1) for the type of soil. Such a steep angle could pose a problem to the properties on the hill, their wells, and septic systems. The Building Commissioner, stressed that this was of real concern and the applicant and commissioner came to an agreement that if the appeal were to be continued, work would be limited. The limited area of the site upon which work would be limited was identified on an aerial photo. The agreement was that the only work to be conducted on the site would be that required by the DEP Order. The Zoning Board of Appeals clarified the agreement that it would permit the continuation of Appeal Number 1997-133 until a date certain, and that during the interim period of time: The applicant/petitioner -Gifford Brothers Sand and Gravel: • will refrain from doing any work, whatsoever, outside the agreed upon "line" as shown on the aerial photograph entitled: "Town of Barnstable Geographic Information System Unit-Aerial Photograph taken on April 10, 1995, File: gravel.dgn.jab 12-9-97, approximate scale 1 inch = 80 feet", • will be allowed to do excavation -mining of sand and gravel - inside the circled area, • will be allowed to work in compliance with a Consent Order in terms of a removal of old junk automobiles buried in the area, • will refrain from doing anything that was contained in the Cease and Desist Order from the Building Commissioner dated October 22, 1997. Specifically, processing of fill, the screening of fill, depositing of fill, brush and clippings or any other similar uses, Attorney Downs stated his client is in agreement with the conditions imposed tonight. The operations engineer, Robert Weaver agreed that the DEP Order is within the area that the applicant is allowed to work during this continuance period. Attorney Douglas Murphy, representing some of the abutters and neighbors asked if the area could be staked out on the ground so that everyone will be able to see the area in question. The Board agreed and asked Attorney Downs if the applicant could mark the area and have the Building Commissioner along with the Engineering Department verify the demarcation of the area as soon as possible. Attorney Downs stated it will be"done by the end of the week" and the Building Commissioner stated he will go out to verify the markings. Barbara LaFlam a direct abutter stated that she believes work is being done by the applicant over her property line. The Building Commissioner reviewed the"line" and stated that no work will be done near her property line during the continuance, and more information will be presented at the later date. The Board determined to continue Appeal Number 1997-133 to January 14, 1998 at 7:30 PM. At the January 14, 1998 continuance, Attorney Downs reviewed the previous hearing and requests for more documentation as to the legal non-conforming aspects of the site and proof that the activity was never abandoned. Attorney Downs submitted a memorandum and gave a brief history stating that in 1956 the area was originally zoned a Residential Limited District enacted through Article 42 of the Town Warrant in March of 1956. In June of 1958, the area changed to RD-2 Residential RD-2 Zoning District. 3 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal No. 1997-133 - Gifford Brothers Sand&Gravel Appeal of the Building Commissioner Included in the memorandum are the related zoning maps. Attorney Downs also showed the zoning map dated August 21, 1950 that did not show the area zoned. Attorney Downs cited that he needs to establish the use from 1956 forward and submitted an affidavit from Priscilla Gifford (daughter of Lorenzo Thatcher Gifford)which goes back to 1949 where she states the use of the property was made as a sand and gravel pit. There is also an affidavit from Jack Gomes. He states that from the early 1950s and onward, there was a sand and gravel pit at this location. Regarding abandonment and extension of use under Chapter 40A, Section 6, Attorney Downs referred to the affidavit from Patricia Gifford that states the property, from the 1950s to the present, has been consistently used as a sand and gravel pit. To help clarify, Attorney Downs explained that Priscilla Gifford resides in Colorado and was married to William Gifford, the son of Lorenzo Thatcher Gifford, who operated the pit in the 1940s-1950s. In 1951, William Gifford died and his wife (Patricia) and his children took over the operation of the business. From 1991 to 1995, Bortolotti Construction took over the operation and the Giffords were paid under a lease agreement. During that time, Bortolotti conducted a screening processing operation along with the sand and gravel pit operation, Also, there were areas on the property that were rented to others. Chairman Emmett Glynn asked Mr. Downs about"44 Gravel and Sand, Inc.". Attorney Downs replied that 44 Gravel and Sand, Inc. is owned by Edwin Whitworth and they held the contract with the Town for the capping of the landfill. The Gifford Pit is one of several pits where the Town tested the materials. The Gifford Pit was approved and 44 Gravel and Sand used those materials for the capping. According to Attorney Downs, the Town had a contract with 44 Gravel and Sand, not with the Giffords. Attorney Downs next reviewed the expansion of the property, citing the Town of Wayland vs. Lee. He stated that the Supreme Court said that the natural extension of a sand and gravel pit includes the entire parcel. Attorney Downs submitted information and photographs from an engineer that cited the distance of the bank to the homes. Mr. Downs stated that the Giffords did not work outside the"line" established at the previous Zoning Board of Appeals Hearing. They did survey work and staked out the limited work area. There was no gravel extraction done and no processing of fill. Attorney Downs said they adhered to the Cease and Desist Order dated October 22, 1997. The Board asked Mr. Downs about Appeal Number 1964-18 which states"...the location in which the petitioner proposes to locate his business is in a gravel pit near Wakeby Road in Marstons Mills". They asked him to locate the pit. He said it is more than 1,000 feet -approximately 1,500 feet-off Wakeby Road. The auto salvage yard was to be on the property along with the gravel pit. The Board questioned if the salvage yard was to be located "in a gravel pit"then the gravel pit is only that small portion of land where the salvage yard was located. However, in Mr. Downs' opinion, if part of the land is a sand and gravel pit, then the whole parcel is called a "pit". Attorney Downs felt that the Board allowed both operations at the same time, but the Board read the Decision to mean the salvage yard would be replacing the existing gravel pit. Attorney Downs located on the 1964 aerial map the gravel pit, the salvage yard along side the house, and the trees surrounding the property. Referring to the April 10, 1995 map, Attorney Downs said the map shows the sand and gravel portion in a different area - but it is still on the same parcel, and he felt there "is not a great difference". The difference is between 1995 and the capping of the landfill. The Board asked Attorney Downs to compare the area around the power lines on the 1964 map vs. the 1995 map. Robert Weaver, the Engineer, showed the right-of-way easement area on both maps. Mr. Weaver reported that no portion of the sand and gravel pit touched the power line easement on the 1964 map. The closest point from the power lines to the sand and gravel pit is approximately 300 hundred feet. As to the 1995 map, the sand and gravel pit area actually touches the power line easement. In Mr. Weaver's professional opinion, based on the 1964 map and the 1995 map, the sand and gravel operation has expanded in area and location. Attorney Downs stated the operation has expanded beyond the power line easement, however, he believes the expansion is a natural expansion of the gravel pit and allowed. 4 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal No. 1997-133 - Gifford Brothers Sand&Gravel Appeal of the Building Commissioner The Board indicated that the 1964 boundary lines are well defined. The 1995 expansion is in a different area and the Board suggested that area may not be in the same location where the pre-existing non- conforming use was. Under the Zoning Ordinance, a pre-existing use can not be expanded without a Special Permit-this property does not have such a Special Permit. The Building Commissioner addressed the Board citing that he is not aware of any violations of the October 22, 1997 Cease and Desist Order nor the limited work agreement. Mr. Crossen stated that he is still of the opinion that no evidence has been shown to demonstrate a pre-existing non-conforming use and that the 1964 Variance does not provide for multiple uses of the site. Therefore, Mr. Crossen is of the opinion that the salvage yard use replaced the sand and gravel operation. The Building Commissioner showed an aerial video taken earlier in the week. The video shows that land over the lot line has been cleared and it some activity may be occurring on neighboring property. In this newly cleared area, sloughing has occurred. The angle of repose is too steep. The Board asked the Town Attorney if the site ever had a permit from the Town to remove sand and gravel. In the late 1950s, it was required under the general by-law of the Town (not the zoning by-law). Mr. Smith answered that he does not believe there were permits issued. Attorney Downs stated that he looked for the permits and said the Town Records do not include any permits. The Board asked if there was any agreement with the owners of the adjacent land that was cleared. Mr. Downs stated he believed that his client cleared a portion of the land because they had an agreement with the owner to clear the trees. The owner is Mr. York. Public Comment: Attorney Charles Sabatt, representing Patricia Gifford, Maynard Gifford, and Beth Linnell (Patricia Gifford's daughter), who collectively have a 53% interest in the property, submitted a memorandum. Attorney Sabatt supports the issues of the Cease and Desist Order. He feels that a pre-existing non-conforming use has not been established. He referred to the language in Appeal Number 1961-41 dated September 17, 1962 which states"...located in a deep hollow ....part of the area had been used as a sand pit..." This may indicate that the use may have been abandoned but he does not have any evidence either way. Attorney Sabatt stated the use from 1961 to now has expanded and this expansion was unlawful. He is of the opinion that a sand and gravel pit can not be expanded to other areas on the property as stated in the case of Powers vs. the Town of Barnstable. Barbara LaFlam, who owns the abutting property to the west submitted a letter to the file. She believes the excavating may have encroached onto her property. She is concerned with the depth of the gravel pit and the materials being removed. Attorney Douglas Murphy representing some of the abutters, submitted photographs taken from the backyard of an abutting parcel at 111 Mockingbird Lane, Marstons Mills. The photographs show that there is no screening of the salvage yard and pit area. Attorney Murphy also submitted several aerial photographs taken on January 12, 1998, that show the sand and gravel operation and a number of parked tractor trailers, boats, cars, trucks, buses, RV's, construction debris along with other debris, and 3-4 trailers. Attorney Murphy noted that there appears to be a commercial use-storage. He cited that between 1974 to 1979, under the Zoning Bylaw at the time, if there was a lapse of use for one year, a Special Permit was needed to renew the use and none was obtained. In his reviewed of the permits granted, it was his opinion that when the applicant applied for a new use, they did not list any previous use(s) that they wanted to still have, therefore they gave up those rights. They did not ask for multi-use of the property. Attorney Murphy reviewed Appeal Number 1964-18 which discusses screening and the restriction that no trees are to be removed. He stated that the screening and the trees no longer exist and the property has become a multi-use facility. The Chairman read a letter from Long Pond Farms Association, Inc., owners of a parcel directly abutting the locus. The Association "unanimously voted to support the Town's efforts to stop the illegal activities being conducted on the Gifford property." Attorney Downs stated that the tree screening from 1964"is still in place". He states the screening is between the salvage yard and the gravel pit. If the Building Commissioner's Cease and Desist Order is 5 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal No. 1997-133 - Gifford Brothers Sand&Gravel Appeal of the Building Commissioner upheld, the petitioner would suffer a substantial financial hardship. Also the DEP enforcement is still in place and there will be ongoing clean-up on the site. If the Cease and Desist in not overturned, Attorney Downs requested that some of the non-conforming uses should be allowed. Findings of Fact: At the Hearing of January 07, 1998, the Board unanimously found the following findings of fact as related to Appeal No. 1997-133: 1. The property in issue is located at 810 Wakeby Road, Marstons Mills, MA. It consists of approximately 16 2/3 acres and is currently located in the RF Residential F Zoning District. 2. The principal permitted use in the RF Residential RF Zoning District is a single family residence. 3. By letter dated October 22, 1997, the Building Commissioner issued a Cease and Desist Order to Harriet Hayward, Trustee, and William Gifford, pertaining to the property in issue-810 Wakeby Road, Marstons Mills. 4. Under the terms of the Cease and Desist, the Building Commissioner determined that the"use on the property for a gravel pit, processing of file, the screening of fill, depositing of fill, brush and clippings or any other similar use is in violation of the Barnstable zoning section 3-1.4. These uses must immediately Cease and Desist". 5. The petitioner(through his counsel), pursuant to the provisions of Chapter 40A, timely filed an appeal of the Building Commissioner's Decision. 6. There has been evidence presented to the Zoning Board of Appeals which would indicate that at one time, this lot was, in fact, used as a gravel pit. 7. No findings are made as whether or not it was ever a legal pre-existing non-conforming use. 8. At one time, it was used only as a gravel pit, not for the purposes of making fill, or bringing clipping on, or running a screening operation. It was a gravel pit, prior to the adoption of zoning in that area, which is purported to be 1956. 9. William Gifford and Maynard Gifford applied to the Zoning Board of Appeals for a Special Permit on February 27, 1969, by their counsel, John P. Curley. The dimensions of the lot were given as containing approximately 23 acres. On that application, it states present use of the premises as Metal Salvage. It did not list that the property was used as a gravel facility. Accordingly, based on that application, as of February 27, 1969, the gravel operation had ceased. 10. The gravel operation has sporadically continued at this site after it has ceased. The gravel operation on this site expanded beyond the original non-conforming use-assuming that the use was legally non-conforming -to an area encompassing almost the entire lot. 11. Pursuant to Section 4-4.5(2) of the Zoning Ordinance, an expansion of a pre-existing non-conforming use requires a Special Permit granted by the Zoning Board of Appeals. 12. There has been no Special Permit obtained by the petitioner or their predecessor in title, for a Special Permit to expand the non-conforming use. 13. The petitioner, through his own expert, has acknowledged that the pre-existing non-conforming use has expanded beyond its original perimeters. 14. There is evidence of serious overuse on this property which if allowed to continue, will result in significant concerns for public safety and public health. 15. Under Chapter 3, Article 3 of the Zoning Ordinance, the purpose of the Zoning Ordinance is "...to promote the health, safety, convenience, morals and general welfare of the inhabitants of the Town of Barnstable. To protect and conserve the value of the property within the town..." The expanded use violates the provisions for which we have adopted zoning in this town and represents a significant nuisance and health and safety factor to the abutting residences. 16. The Building Commissioner in terms of his Cease and Desist Order, which orders the petitioner to stop, acted properly. Decision: Based upon the findings of fact in Appeal Number 1997-133, a motion was duly made and seconded to sustain the Decision of the Building Commissioner. The Vote was as follows: AYE: Ron Jansson, Gene Burman, Gail Nightingale, Elizabeth Nilsson, and Chairman Emmett Glynn 6 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal No. 1997-133 - Gifford Brothers Sand&Gravel Appeal of the Building Commissioner NAY: None Order: In Appeal Number 1997-133,the Decision of the Building Commissioner has been upheld. Appeals of this decision, if any, shall be made pursuant to MGL Chapter 40A, Section 17, within twenty (20) days after the date of the filing of this decision. A copy of which must be filed in the office of the Town Clerk. 1998 Emmett Glynn, Chairman Date Signed I Linda Hutchenrider, Clerk of the Town of Barnstable, Barnstable County, Massachusetts, hereby certify that twenty (20) days have elapsed since the Zoning Board of Appeals filed this decision and that no appeal of the decision has been filed in the office of the Town Clerk. Signed and sealed this day of 1998 under the pains and penalties of perjury. Linda Hutchenrider, Town Clerk I I 7 m SENDER: 13 ■Complete items 1 and/or 2 for additional services. I also wish to receive the. in ■Complete items 3,4a,and 4b. following services(for an ■Print your name and address on the reverse of this form so that we can return this extra fee):, card to you.- Attach this form,to the froht of the mailpiece,or on the back if space does not , ❑ Addressee's.Address permit. W y ■Write'Retum Receipt Requested'on the mailpiece below the article number. 2. ❑ Restricted Delivery rn ra ■The Return Receipt will show to whom the article was delivered and the date �•-..,.- a c delivered. Consult postmaster for fee. 0 v 3..�Article �Addressed to: 0 4a.Article Number obi a E b.Service Type «c'0 ❑ Registered Certified to C4"t� ""cc 'AA ❑ Express Mail ❑ Insured of , /��/�� -� e W �v'4 d 17'( [T Return Receipt for Merchandise ❑ COD 0 7.Date of Delivery w '� , cc _ > 1 cc , n Receiv nn e) 8.Addressee's ddr ss(Only if requested. and fee is paid) ". 6.Sign ure:(Addressee o? AgrehlT iti .dj� fii I IPS For,3811, December 1994 1 j :i i s 102595'87,6 01%9 ;;rD,omestic Return Receipt l it It t11l-. 1111-- -i1 { lil l i "sl O O First =Class^Mail. UNITED STATES POSTAL SERVICE �' P M '� - Postage&Fees Paid ;., ' USPS R ;G .Perm)No.G-10 �. • Print your name, address, and ZIP Code in this box• �,f9n of Barnstable I ,: hliding Division 367 Main St. Hyannis, MA 02601 I I 0 I y oFt Town of Barnstable Regulatory Services • BABNSMBLE, ` 9 mass. Thomas F.Geiler,Director rEn 39. a Building Division Peter F.DiMatteo Building Commissioner 367 Main Street, Hyannis,MA 02601 Office: 508-862-4038 Fax: 508-790-6230 August 8,2001 Mr.Chris Keyes _Gifford Bros.Sand and Graveh 800 Wakeby Road Marstons Mills,MA 02648 Re: Signs on Town Property Dear Mr. Keyes: The two signs at the entrance to your property(CAUTION CONSTRUCTION ENTRANCE AHEAD)must be removed immediately. i The signs are on Town property and do not meet the Town of Barnstable Zoning.Ordinance. Enclosed is a copy of the Ordinance 4-3.3 Prohibited Signs. I refer you to items 4, 11,and 14. Sincerely, vcc- Ralph L.Jones Building Inspector RLJ/lb Enclosure CERTIFIED MAIL 7000 0520 0021-8281 4497- g010808a• U 3-:1.4,3 0 5 8 0 8 5 - aj ULAKUiUU 32, . i a�-a�y � ��- �o 1 r. 4' 0 3 1 4 3 0 5'8 0$5 -- - ULARUlLJ v 31 - °F1HE lq,,, Town of Barnstable Regulatory Services 9� �'E� Thomas F.Geiler,Director Building Division Peter F.DiMatteo Building Commissioner 367 Main Street,_Hyannis,MA 02601 Office: 508-862-4038 Fax: ,508-790-6230 August 8,2001 Mr.Chris Keyes Gifford Bros.Sand and Gravel 800 Wakeby Road Marstons Mills,MA 02648 Re: Signs on Town Property Dear Mr.Keyes: The two signs at the entrance to your property(CAUTION CONSTRUCTION ENTRANCE AHEAD)must be removed immediately. i The signs are on Town property and do not meet the Town of Barnstable Zoning Ordinance. Enclosed is a copy of the Ordinance 4-3.3 Prohibited Signs. I refer you to items 4, 11,and 14. Sincerely, Ralph L.Jones Building Inspector RLJ/lb Enclosure CERTIFIED MAIL 7000 0520 0021 82814497 .. g010808a a s a � lop Mx 4 -.''4'4 i Y r Al M�R1�s�R0 I46 126 i of .c- Is• �. ^-� ' O i V\ C OAL \. b 40 I �\ 0 q4�c 1 1512AC. ttfii: 9-1 w-es 5b-2 \ \ 3•�lAr- I \ \ I"0.lie v � ♦D) &L t • \ pM1 O 3.2 3-1 © \ e 1 1.00.oC /00. 4.14ac m \ OOAC 2 m \ 4 \ .06AC 3-4 I.00AC a I.00AC C. \ rIs•s \ so \ o 2(.9 \ Ins Aso 'so _ - 1S0 p 41 41 '40 0 4 C tb_s Is 1•IeAG l 13-�1.0 ✓ , �� O AG I-00.00AC. Ca W o v IL o C • -. O © r l tie• Y � . � The Town of Barnstable Department-of Health Safety and Environmental Services -� Building Division 367 Main Street,Hyannis MA 02601 Office: 308-862-4038 Ralph Crossen Fax: 308-790-6230 Building Commissic r , SMM REGISTRATION Location of shed(address) Property owner's a Telephone number Size of Shed - Map/Parcel# w T- Date Hyannis Main Street Waterfront Historic District? v Old King's Highway Historic District Commission jurisdiction? 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COMMONWEALTH OF MSSSACHUSETTS APPEALS COURT BARNSTABLE COUNTY No. A.C. 2000-P-0701 GIFFORD BROTHERS SAND AND GRAVEL, INC., PLAINTIFF-APPELLANT, U. ZONING BOARD OF APPEALS, TOWN OF BARNSTABLE, DEFENDANTS-APPELLEES-CROSS-APPELLANTS. ON APPEAL FROM A JUDGMENT OF THE BARNSTABLE SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT FOR THE COMMONWEALTH OF MASSSACHUSETTS BRIEF OF DEFENDANTS-APPELLEES-CROSS-APPELLANTS ROBERT D. SMITH, Town Attorney B.B.O. No. 469980 RUTH J. WEIL, 1st Asst. Town Attorney B.B.O. No. 519285 T. DAVID HOUGHTON,Asst. Town Attorney B.B.O. No. 241160 TOWN OF BARNSTABLE 367 Main Street, New Town Hall Hyannis, MA 02601-3907 (508) 862-4620; (508) 862-4724 Fax TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . iii Statement of Issues . . . . . . . . . . . . . . . . . 1 Statement of Cas.e 2 Statement of Facts . . . . . . . . . . . . . . . . 4 Summary of Argument . . . . . . . . . . . . . . . 10 Argument . . . . . . . . . . . . . . . . . . . . . 11 A. Standard of Review . . . . . . . . . . . 11 B. The Court Erred In Failing to Apply Barnstable' s 1929 Zoning By-Law to the Subject Focus . . . . . . . . . . . . . . 12 1 . The burden rests on Gifford to prove the purported nonconforming use began prior to 1929 and continued without being lost through abandonment and nonuse . . . . . . . . . . . . . . . . .. 12 2 . There is no dispute that had the trial court applied the 1929 zoning by-law, Gifford cannot establish a legal pre- existing nonconforming use that began before 1929 . . . . . . . . . . . . . 13 C. The Trial Court Erred In Failing to Rule That Gifford and His Predecessor In Title Had, As a Matter of Law, Abondoned Any Preexisting, Nonconforming Use . . . . . 21 1 . In obtaining zoning relief to conduct an auto salvage use on the premises, the predecessors in title to the subject locus, abondoned any claimed non- conforming sand and gravel use . 21 2 . Under the holding of the Ka-Hur case, the actions of Gifford in vastly extending the claimed nonconforming use without permission, as a matter of law, constitutes an act of abandonment, resulting in the loss of any legal preexisting use on the subject locus 28 D. The Trial Court Correctedly Found That If Zoning Became Effective in The Town of Barnstable in 1956, that Whatever Preexisting Nonconforming Use Existed On the Subject Property Is Limited to the Area Devoted .to Gravel Removal. Prior to 1956 . 1 . Under applicable Massachusetts cases the court correctly found that if zoning became effective in 1956, that removal of gravel is limited to the area devoted to gravel removal prior to 1956. . . . . . . . . . . . . . . . 31 2 . The trial court correctly found that under the three-prong test articulated in Powers v. Building Inspector of Barnstable, 363 Mass . 648 (1973) , Gifford ipermissibly expanded the nonconforming use of the premises . . . 40 3 . Not only did the trial court correctly rule that the "diminished assets" test under the facts found by the trial judge would not change the outcome 44 Conclusion . . . . . . . . . . . . . . . . . 46 Addendum . . . . . . . . . . . . . . . 49 TABLE OF AUTHORITIES Cases Balcam v. Town of Hingham; 41 Mass. App. Ct . 260 (1996) . . . . . . . . . . . . . . 44 Billerica v. Quinn, 320 Mass. 687 (1947) 32, 38, 39 Boston, v. Santusuosso, 307 Mass. 302 (1940) . . . 37 Bridgewater v. Chuckran, 351 Mass. 20 (1966) . . . 40 Building Inspector of Chatham v. Kendrick, 17 Mass.App. Ct . 928 (1983) . . . . . . . . . . . 13 Building Inspector of Groton v. Vlahos, 10 Mass.App. Ct . 890 (1980) . . . . . . . . . . . 30 Building Inspector of Lancaster v. Sanderson, 372 Mass. 157 (1977) . . . . . . . 11, 44 Cape Resort Hotels, Inc. - v. Alcoholic Licensing Bd. Of Falmouth, 385 Mass. 13 City of Newburyport v. Thurlow, 324 Mass. 40 (1949) 18 Cox v. Board of Appeals of Carver, 42 Mass.App. Ct . •422 (1997) . . . . . . . . . . . . . . . . . . 41 Davidson Pipe Supply Company, Inc. v. Johnson, 14 . Mass.App. Ct . 518 . . . . . . . . . . . . . . 11 Dawson v. Board of Appeals of Bourne, 18 Mass.App. Ct . 962 (1984) . . . . . . . . . . . 27 DiGiovanni v. Board of Appeals of Rockport, 19 Mass.App. Ct. 339 (1985) 11 Dobbs v. Board of Appeals of Northampton, 339 Mass. 684 (1959) . . . . . . . . . . . . . . . . . . . . 27 Dock Watch Hallow Quarry Pit v. .Town of Warren, 361 A. 2d 12 (N. J. 1975) . . .. . . . . . . . . . . 44 Euclid v. Amber Realty Company, 272 U. S. 365 (1926) 15 Ferrante v. Board of Appeals of Northampton, 345 Mass. 158 (1962) . . . . . . . . . 44 First Penn Mortgage Trust v. Dorchester Savings .Bank, 395 Mass. 614 (1985) . . . . . 37 Gage v. Town of Egremont; 40.9 Mass. 345 (1991) 10,. 19 Gallagher v. Board of Appeals of. Acton, 44 Mass. App. Ct . 906 (1997) . . . . . . . . . . 29 I Hall v. Zoning Board of Appeals of Edgartown, 28 Mass.App. Ct . 249 (1990) . . . . . . . . . . . 21 J. A. Sullivan Corp. v. Commonwealth,. 397 Mass. 789 (1986) . . . . . . . . . . . . . . . . . . 37 Jasper v. Michael A. Dolan, Inc. , 355 Mass. 17 (1968) . . . . . . . . . . . . . . . . . . . . 30 Johnson v. Edgartown, 425 Mass. 117 (1997). . . . . 20 Johnston v. Johnston, 38 Mass. App. Ct. 531 (1995) 37 Ka-Hur Enterprises; Inca v. Zoning Board of Appeals of Provincetown, 424 Mass. 404 (1997) . . . . . . . . . . . . . . . . . . 26, 29 Kendall v. Sal vaggio, 413 Mass. 619 (1992) . . . . 36 Leahy v. Inspector of Buildings of City of New Bedford, 308 Mass. 128 (1941) . .. . . . . 20 Lexington v. Simeone, 334 Mass. 127 (1956) . . . . 36 Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct . . .. . . . . . . . . . . . . . . . 13, 18 Moore v. Bridgewater Township, 173 .A. 2d 430 (N. J. Super. 1961) . . . . . . . . . . . . . . 44 New England Canteen Service, . Inc. v. Ashley, 372 Mass . 671 (1977) 11 Opinion of the Justices, 234 Mass. 597 (1920) . . . 14 O'Blenes v. Zoning Board of Appeals of Lynn, 397 Mass. 555 (1986) . . . . . . . . . . . . . 44 Pioneer Insulation & Modernizing Corp. v. Lynn, 331 .Mass . 560 (1954) . . . . . . . . . . 24, 27 Powers v. Building Inspector of Barnstable, . 363 Mass. 648 (1973) . . . . . 11 , 30, 40, 43 Rockwood v. Snow Inn Corp. 469 Mass. 361. (19,91) 42 Seekonk v. Anthony, 339 Mass. 49 (1959) . . . . 29, 38 Selectmen of Sudbury v. Garden City Gravel Corp. , 300 Mass. 41 (1938) . . . . . . . . . . . . 17 Selectmen of Wrentham v. Monson, 355 Mass. 715 (1969) . . . . . . . . . . . . . . . . . . . . 13 Shalbey v. Board of Appeals of Norwood, 6 Mass. App. Ct . 521 , rev. .den. 376 Mass 936 (1978) . . . . . . . . . . . . . . . . . . 12 Smith .v. Board of Appeals of Salem, 313 Mass. 622 (1943) . . . . . . . . . . . . . . . . . . . 20 Strazzulla V. Building Inspector of. Wellesley, 357 Mass. 694 (1970) . .. . . . . . . . . . . 13 Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass.App. . . . . . . . . . . . . . 12 Seekonk v. Anthony, 339 Mass. 49 (1959) . . . . 29, 38 Tamerlane Realty Trust v. Board of Appeals of Provincetown, 23 Mass. . . . . . . . . . . . . 12 Town of Burlington v. Dunn, 318 Mass. 216 (1945) . . . . . . . . . 29, 32, 331 39, 45 Township of Fairfield v. Likanchuk's, Inc. 644 A. 2d 120 (N. J. 1994) . . . . . . . . . 45, 46 Wayland v. Lee, 331 Mass. 550 (1954) 32, 38, 39, 45 Wayland v. Lee, 325 .Mass. 637 (1947) . . . . 32, 39 Zaltman v. Board of Appeals , of Stoneham, 357 Mass. 482 (1970) . . . . . . . . . . . . . 12 Statutes Massachusetts General Laws : c. 40,. §§25-30 15 §§25-30A 15 . §26 32, 34 c. 40A §4 . . . . . . .. . . . . . . . . . 19 §6 . . . . . . . . . . . . . . 13, 32, 34 §9 . . . . . . . . . . . . . . . . . . 20 §17 . . . . . . . . . . . . . . . . . 10 1920 Mass .Acts 601 §1 . . . . . . . . . . . . . . . . 15 §7 . . . . . . . . . . . . . . . 15 1925 Mass .Acts 116 . . . . . . . . . . . . . . . . 15 St . 1920 c. 601 . . . . . . . . . . . . . . . . . . 17 St . 1920 c. 601, §7 . . . . . . . . . . . . . . 18 St . 1925 c. 116 . . . . . . . . . . . . . . . . . . 17 St . 1933 c . 269, §1 . . . . . . . . . . . . . . . . 32 . Miscellaneous Babrowski, Handbook of Massachusetts Land Use and Planning Law §12 . 1 (1993) . . . . . . . . 29 Joshua M. Alper and Caroline Woodward, Ka-Hur Enterprises, Inc. V. Zoning Board of Appeals of Province Town: Extinguishment of Nonconforming Uses, Boston Bar Journal (January/February, 1998) . . . . . . . . . . 29 Martin R. Healy, ed. , Massachusetts Zoning Manual §1 . 3 (MCLE 1999) . . . . . . . . . . . . . . 15 STATEMENT OF ISSUES. 1) Whether the trial court erred in refusing to apply the 1929 zoning by-law to the subject property. 2) Whether the trial court erred in finding that a legal pre-existing nonconforming gravel removal use continued on the subject property, albeit one limited in scope and area, based upon' the court' s adoption of 1956 rather than 1929 as the year that zoning went into k' effect within the town of Barnstable. 3 ) Whether the trial. court erred in failing to rule . _ that, as a matter of law, the prior property owner had abandoned any .legal, pre-existing use on the premises . 4) Whether the trial court correctly found that if zoning became effective in the Town of Barnstable in 1956, that whatever preexisting nonconforming use existed on the subject property is limited to the area devoted=to=grave,l�remova:prior t.o=1.9-5=6 5) Whether the trial court properly ruled that the Barnstable Zoning Board of Appeals was correct in finding that the expansion of the sand and gravel . operation on the subject parcel constituted an impermissible and illegal expansion. 1 STATEMENT OF CASE. This case involves a judgment of the Barnstable superior court that found that the Gifford Brothers Sand and Gravel, Inc . (hereinafter "Gifford" ) , through its principal,- Christopher Keyes, had- illegally changed and expanded .the commercial uses on its residentially- zoned property. (A. 684) . The illegal expansion has adversely affected the daily quality of life of the surrounding residential property owners "...in the form of increased noise, increased particulate in the air, and possible structural consequences . " (Findings of Fact, Rulings of Law and Order of Judgment at page .12) . 1 Gifford filed a zoning appeal, pursuant to G.L. -c . 40A, §17 (A. 400-401) , from a decision by the Barnstable Zoning Board of Appeals (hereinafter the "Board" ) which upheld the determination of the building commissioner that the only permitted uses on the residentially-zoned locus are single-family residence and auto salvage, consistent with the terms of the 1/ The Board discovered while preparing its brief,. that while the Judgment on the Findings of the trial court are included in the Appendix, the court' s Findings of Fact, Rulings of Law and Memorandum of Judgment were not. The Board has appended said document to its brief. 2 previously-issued variance and special permit. (A. 658- 654) . The superior court trial extended over three days and included a view by the trial court . (Findings of Fact, Rulings of Law and Order of Judgment at page 1) . By judgment ente-r-ed=o-n—July-2.1,�.2--000, the trial court ordered . " (1) that the decision of the Board of Appeals, Town of Barnstable, dated January 27, ' 1998, sustaining the Cease and Desist order of the Building Commissioner, Town of Barnstable, dated October 22 , 1997, .is affirmed in all respects exc-ep:t;as=to=r_emova:l� ofag:r-.ave-l=on=tha-t p.o.rzt.ion-,--.of the-prop.e-rty—app-r-op-r- ated t.o that us-e n­�1.9-5:6 n1 (A. 685) . In modifying the Board' s decision to allow Gifford to remove gravel, while limiting it to the area that had. been mined•in 1956, the trial court determined that- applicable. zoning went into effect in ' 1956 . (Findings of Fact, Rulings of Law•.and Order of Judgment at pages.. 13-14) . However, had the trial court found that comprehensive town-wide zoning was applicable to the parcel in 1929., as the Board contends, the only permissible uses on the property would be residential uses and automobile salvage, consistent with the terms of the previous zoning. relief granted by .the Board. 3 On September 10, 1999, Gi:f-_f-o-r-d—f-i-led=fiats-no-ti=ceI of appeal and on September 16, 1999, the Board filed a cross-appeal . (A. 413-414) . STATEMENT OF FACTS. The subject locus, comprised of 16 . 6 acres, is located at 810;Wakeby=R-add, Marstons Mills, Massachusetts, an RF (residential) zoning district, where the principal permitted use is a detached single- family dwelling. (A. 451, 658) . In 1929, a comprehensive town-wide zoning by-law was adopted in the town of Barnstable. (A. 590-592) . Under its terms, all lots in town were residentially zoned, except that . existing business or industrial uses could so continue. (A. 590) . When Lorenzo Gifford acquired the premises in 1945 from his uncle, Charles Gifford, the premises were undeveloped woodlands and "...Wakeby Road was nothing more than a path in the woods . " (Findings of Fact, Rulings of Law and Order of Judgment at page 6; A. 58) . A 1955 aerial photograph of the locus reveals that only a small portion of the parcel, bordering- on Wakeby Road, is developed. (E. 17) The .locus is'- subject to several special permits and variances issued by the Board in the 1960 ' s . Specifically, inr19-6.4_,YL. Thatcher Gifford, applied for 4 i a variance to conduct a parts/salvage business on the I locus . (A. 650) . The application stated that the current use of the premises was a gravel pit bordering the road and indicated that the newly-proposed use was parts-salvage under license. ' .(A. 650.) . `Nowhere in the petition to .the Board or 'in the Board' s decision ' granting said petition is there any indication, express or implied, that the present- use of .the premises as stated in the petition, "Gravel pit bordering road, " was to be continued along with the newly-requested and granted use of parts-salvage under license. (A. 650- 653 ) . This is underscored by the fact that when in 1969, William- Gifford and: Maynard Gifford applied for a special- permit to add a building to allow for the sale of used auto-parts and second-hand vehicles, the Giffords, through their attorney, listed "Metal salvage"° as -the present use of the premises and the proposed used as "used auto parts . " (A. 654-655) . Neither the 1969 application nor the special permit as granted makes any mention of the existence or continuation of the sand and gravel operation. (A. 654-657) . However, the Board in its decision did find that. " [b] ecause of the. large acreage owned-by-.'the Petitioners, -which surrounds the salvage yard .. 5 operation, the Board feels that it is not detrimental to the neighborhood. " (A. 657) . The majority of the parcel remained in its natural state through the 19801s . (A. 266; E. 23-24) .2 Those visiting and residing on the premises in the 19601s, 1970 ' s and, 1980 ' s described the use of the premises as a junkyard. (A. 65-67, 192-195, 263-264, 310, 344-346) . Also, in the 19801s, the surrounding residentially- zoned property began being developed for single-family homes . (A. 267-269) . Today, there are approximately 250 single-family homes in the subdivision surrounding the Gifford property. (E. 22) . Sometime in 19-95, Christopher Keyes began acquiring the interests of various Giffords who owned the subject locus . (A. 52-53 , 108=109, 165-166) .3 As a purchaser under a purchase and sales agreement, Keyes entered into a contract with 44 Sand and Gravel, Inc . 2/ While the aerial photographs in question are identified as being taken in 1955 , they were admitted at trial as being photographs taken in 1968 . The Board has moved to correct this error. 3/ According to the testimony at trial, Priscilla G .f -ordi s one-tYiird interest was acquired by Keyes in 1995 for $40; 0.00,. with $10, 000 still outstanding at. the. time of trial . (A. 52-53) . Sometime thereafter, William P. Gifford' s interest was purchased for $4, 000 . (A. 108-109) : 6 for sand and gravel (A. 145) .4 Keyes testified at - a deposition that he had received $380, 000 from 44 Sand and Gravel, Inc . under the contract (A. 148-149) , but later recanted, claiming he had only received -between $50, 000 to $70, 000 under said contract. (A. 163-164) . In 1995, Gifford Brothers Sand and Gravel, Inc . , through its principal, Keyes, filed a complaint against the town of Barnstable in Barnstable Superior Court, Gifford Brothers Sand and Gravel, Inc. v. Ralph Crossen, et al . , bearing Civil Action No. 95-922 , claiming that it had entered into a public improvements' contract with the 44 Sand and Gravel, Inc . for the capping of the town' s landfill and asserting it and. the public would be irreparably harmed if Gifford Sand and* Gravel, Inc . could not fulfill its contract with 44 Sand and Gravel; ' Inc . (A. 150-151, 394) . Keyes testified that he completed the work under the 44 Sand and Gravel contract between April and July of 1995 . (A. 135, 151-152) .5 4/ At the time that Keyes entered into the contract with 44 Sand and Gravel, Inc. , he had paid Priscilla Gifford a total of $10, 000 . (A.. 146) s/ [n]hile. Gifford makes much .'of its reliance on .a . 1996 internal memorandum from the building commissioner to his legal counsel (A. 674) , according to Keyes ' testimony, the contract was completed in 1995 . 7 After the completion of the 44 Sand and Gravel contract, Keyes began running his landscaping business on the premises including a loam processing and manufacturing 'operation. (A. 118-120, 380-382 , 672- 673) . By late 1996 and early 199.7 , Keyes had clear cut and stripped right up to the boundary line of the residential property owned by James`Mc-D no_ugh and had erected a barbed wire fence along the boundary. (A. 270-276) . Through the time of the trial and except during the winter--months of each year, the neighbors were subjected to the sound of heavy machinery commencing work at 7 : 00 a.m. , accompanied by tremendous noise from the large screener being used on the premises . (A. 274-278, 307, 329-333 , 379).. There was so much dust generated by the various commercial activities that sometime smoke detectors would discharge 'by mistake. (A. 331) . The locus had also become a repository for construction and demolition debris and for new brush and stumps, with large trucks bringing these materials to the site. (A. 296-297 , 381- 382) . The constant barrage of noise, dust and fumes made the backyards of the contiguous residential properties unusable. (A: 331-333) Efforts to. disc.uss: these serious problems with Keyes resulted in veiled 8 threats of retaliation if ,the complaints to government entities did not stop. (A. 282=291; 322-329) . None of the above describe activities had obtained - required permits from either the Department of Environmental Protection (A. 235-237) or the Board. On or about May 9, 1997, . the building commissioner ordered the owners and operators of the subject property to cease and desist- " . . . the new commercial use of your property involving the transport of wood waste materials to your site and the processing of it. (A: 415) . . No appeal was filed of the building commissioner' s Order. On or about September 11, 1997 , the building commissioner received a detailed request for enforcement from an attorney representing a number of residential abutters . (A. 418-422) . . After conducting an investIgation,--the building commissioner issued a cease -and- desist order, stating " [u]pon investigation, I have determined that the use of your property for a gravel pit, processing of fill, depositing of fill, the screening of fill, brush 'or clippings or any other similar use is in violation of Barnstable zoning section 37-1 . 4 . These .uses. must immediately CEASE -AND DESIST. " (A. 416) . 9 Gifford, through its principal, Christopher . Keyes, appealed the building commissioner' s decision. After two hearings, the Board upheld the decision of the Building Commissioner. (A. 658-664) . Thereafter, the Gifford commenced its appeal under G.L. ..c . 40A, §17 . (A. 400-401) . SURD ARY OF- ARGUMENT. In rejecting the Barnstable' s 1929 zoning by-law as "spot zoning" , the trial court erred in failing to recognize that a town could choose to limit its zoning to only residential districts, with other specified uses obtainable by special permit, which was the holding of the recent case of Gage v. Town of Egremont, . . 409 Mass . 345 (1991) . Had the 1929. zoning by-law been applicable, the trial court found that the sand and gravel use on the subject locus was illegal . (12-21) . The trial court erred in failing to find that, as a matter of law, any legal nonconforming sand and gravel use on the premises had been abandoned through the actions of Gifford and its predecessor. (21-29) . The trial court correctly found that if zoning became effective in the town of Barnstable in 1956, that whatever pre-existing nonconforming use existed on the subject property is limited to the area devoted to gravel removal prior to 1956 . Under the test 10 articulated in Powers v_. Building Inspector of Barnstable, 363 Mass . 648 (1973) ,- the current use of the premises beyond the area appropriated in 1956, without the benefit of any permits, constitutes an impermissible change and expansion. (30-46) .- ARGUMENT. i A. Standard of Review. In the appellate review of a zoning case, the trial court' s findings of fact will not .be set aside unless they are clearly erroneous, that is, when there is no evidence to support them or when " . . . although there is evidence to support [them] , the reviewing court bn the entire evidence is left with the definite and firm conviction that a mistake has been committed. " Di Giovanni v. Board of Appeals of Rockport, 19 Massa App. Ct . '339, 343 (1985) citing Building Inspector of Lancaster v. Sanderson, 372 Mass . 157 , 160-161 (1977) .. "In reviewing the findings of a trial court in actions tried without a jury, an appellate court may not reverse ' unless the facts on which the conclusion was based are clearly erroneous ' or unless ' the findings or conclusions are tainted by .an. .e.rror of. law. "'. Davidson . r Pipe Supply Company, Inc. v. Johnson, 14 Mass . App. Ct. ' 518, 525 (1982) , citing from New England Canteen Service, Inc. v. Ashley, 372 Mass . 671, 674 (1977 ) . 11 Deference to the trial court' s findings in a zoning appeal is particularly appropriate where, as here, the trial judge has taken a view of the neighborhood. Shalbey v. Board of Appeals of Norwood, 6 Mass . App. Ct. 521, 529, rev. den. , 376 Mass . 936 (1978) . A judge, in "reviewing a decision of the board. . :does not possess the same discretionary power as does the board. . . " Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass . App. Ct. 483 , 486 (1979) . If reasonable minds can differ on the conclusion to be drawn from the evidence presented, it is the board' s decision which is controlling. Zal.tman . v. Board of Appeals of Stoneham, 357 Mass . . 482-, 484 (1970) . B. The Court Erred in Failing to Apply Barnstable's 1929 Zoning By-law to the Subject Locus. 1. The Burden Rests on Gifford to Prove the Purported Pre-existing Nonconforming Use Began Prior to 1929 .and Continued Without Being Lost through Abandonment and Nonuse The burden rests with a plaintiff in a zoning appeal to produce evidence that the requisites of zoning have. been met . Tamerlane. Realty Trust v. Board. of Appeals of Provincetown, 23 Mass . App. Ct . 450, 454 (1987) . The statutory meaning of the phrase 12 "nonconforming use" as used in G.L. c . 40A, §6 and the town of Barnstable zoning ordinance encompasses •a use in existence prior to the commencement of the process leading to adoption of provisions which prohibit that use. Mendes v. Board of Appeals of Barnstable, 28 Mass . App. Ct. 527 (1990) . As such, Gifford must show;. first, that the sand and gravel pit use and any other non-residential uses were lawful when begun and have .- not been abandoned either through unlawful expansion or other acts of the property-owner. See Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass ., 205, 223 n. 11 (1982) ; Building Inspector of Chatham 'v. Kendri.ck, 17 Mass . App. Ct . 928, 929 (1983 ) Selectmen of Wrentham v. Monson, 355 Mass . 715, .716' r (1969) . Clearly, the statutory framework which permits the continuance of an existing use does not protect every prior use irrespective of the time or the circumstances under which it came into existence. See Mendes, . supra. This is particularly true since Massachusetts courts have acknowledged that the spirit of zoning is to restrict rather than to increase non- conformities . See generally, Strazzulla v. Building Inspector of Wellesley, 357. Mass.. 694, : 697 :(1970.) i 2. There is no dispute that had the trial court applied the 1929 zoning by-law, Gifford cannot establish a legal pre- 13 existing nonconforming use that began before 1929. i There is no dispute that the first zoning by-law was adopted within the town of Barnstable on June 14, 1929 and was approved on July 2_,_1.92.9_., (A. 590-595) . Further, clear indicia exists that the 1929 zoning by- law was implemented throughout the town because there were decisions issued by the Board of Selectmen, as the special permit granting authority under the 1929 zoning by-law. (A. 675-A. 684) . The trial court, however, refused to apply the 1929 zoning by-law to the subject locus, finding that it was "spot zoning" and, therefore, "...beyond the authority of the Town and invalid as applied to this Property..." (Findings of Fact, Rulings of Law and Order of Judgment at page 7) . The Board asserts that the 1929 zoning by-law was valid and that the court' s refusal to apply it to the subject property was improper. The historical context in which Barnstable' s 1929 comprehensive zoning by-law was passed is critical to its understanding. . The ratification inF19F8 of Mass . Const . Amend art. 60 marked the first mandate for comprehensive zoning controls on .a statewide basis . . In. the Opinion of the Justices, 234 Mass'. 597, 601 (1920) , the Supreme Judicial Court concluded that an act delegating zoning powers to municipalities did not 14 i contravene the constitution and further that the general police power provided an ample basis to regulate both vacant and developed land. 6 -Following the advisory opinion of the Justices, the Legislature enacted 1920 Mass . Acts 601, authorizing municipal adoption of local zoning controls .7 Specifically, it allowed cities and towns to establish zoning districts in which they could restrict the use and construction of buildings . 1920 Mass . Acts 601, §1 . Additionally, it required that existing structures and uses be given lawful nonconforming status . c . 601, §7 .$ See Martin R. Healy, ed. , . Massachusetts Zoning Manual §1 .3 (MCLE 1999) . 6/ The constitutionality of a comprehensive municipal zoning by-law was first tested before the United States Supreme Court in Euclid v. Amber Realty Company, 272 U. S. 365 (1926) where the Court ruled that the exclusion of industrial and commercial uses from the residential zoning district was a valid exercise of the police power because it bore a rational relationship to the health and safety of the community. This decision was also contemporaneous with the passage .of Barnstable' s first comprehensive town-wide zoning. 7/ Chapter 601 which was codified as G.L. c . 40,' §§25- 30 . a/..In. 1925, the scope of G.L. .c . 40, - .§§25-30A was expanded beyond the regulation of buildings to include the regulation of structures and premises under the general police power. 1925' Mass Act' 116 . ' 15 Barnstable' s 1929 by-law, appearing as "Article X" in the town' s building laws, stated as follows : The Town of Barnstable is hereby divided into districts, subject to the provisions hereinafter stated, to be known respectively as non-residence districts and residence districts as follows : Non-residence Districts subject to change as hereinafter provided, shall compromise all lands which at. the time this By-law becomes effective are used for any business or industry other than farming, truck gardening, the growing of trees, shrubs, vines or plants, and the raising of animals . Residence Districts, subject to change . as hereinafter provided, shall comprise all areas not included in Non-residence Districts . Subject to the provisions hereinafter stated, no parcel of land lying in any residence District and not at the time this By-law becomes effective devoted to any business or industry, other than those hereinbefore specified shall hereafter be used for any business or industry, or for any purpose except for residence or purposes of buildings appurtenant thereto, or for churches, schools and similar non-commercial or non'-industrial buildings, and no permit shall be issued for the erection, alteration or conversion of any building for or to any such prohibited use upon any such parcel, except as hereinafter provided. A permit may be issued for the erection in any residence district of a building for the purpose of any business or industry or for the alteration or conversion of a building in such district for or to such purposes, if the Selectmen shall after public hearing so order, provided that no such permit shall be granted except upon written application and after a public hearing of parties interested and consideration of their evidence by the Selectmen; notice of said hearing being given by publication of the time and place thereof in a local newspaper not less than two weeks before said hearing, the expense of such publication to be. borne .by .the petitioner. After such hearing the .Selectmen shall render .a. decision in writing, . stating the decision and the reasons therefor and file the decision with the Town Clerk and send a copy thereof to the applicant. (A. 591-592) . 16 While Barnstable' s 1929 by-law creating zoning as it does, narratively (that is to say, without reference to a map) , would be unusual by current standards, when viewed against the backdrop of the zoning enabling acts ` of 1920 - (St . 1920 c . 601) and 1925 (St . 1925 c . 116) and when .compared with other town by-laws of the same .vintage, Barnstable' s by-law is not remarkable. In Selectmen of Sudbury v. Garden City Gravel Corp,. , 300 Mass . 41 (1938) , the by-law discussed and applied was also narrative, as opposed .to map-based. An examination of the zoning by-law being applied in that case reveals that it was similar to that enacted in Barnstable in 1929, .to wit: "The zoning by-law does not describe the several zones by metes and bounds, or by streets, roads or other physical objects . It 'does not refer to any ' map. The business districts comprise (1) those '.used for any business or industry other than, certain specified kinds, and (4) ' lands adjoining any -railroad -right of way, manifestly fit only for business "or industry' had a provision explicitly zoning for business use "lands adjoining any railroad right of way, manifestly fit only for business or industry. " Id. at 43 . The Sudbury by-law, found valid by the court did not refer to a map or-a metes and bounds description, but rather, like Barnstable' s', the zoning districts were described narratively, ' As in the. Barnstable by i law-, business districts were those which were being used for business, presumably as of the date the by-law 17 became effective. In ruling in favor of the property owner, the court found that the sand and gravel operation was in conformance with zoning because it was located on lands adjoining a railroad right of way, which under Sudbury' s narrative description allowed for a business use. See generally, City of Newburyport v. - Thurlow, 324 Mass . 40, 44 (1949) (acknowledges that city council was not required to adopt a zoning map as part of zoning ordinance, but "...could adopt an ordinance complete in itself . " ) . Additionally, the requirement contained in the Barnstable' s 1929 by-law that "... [n] on-residence Districts subject to change. as .hereinafter provided, shall compromise all lands which .at the time this -By- law becomes effective are used for any business or industry other than farming, truck gardening, the growing of trees, shrubs, vines or plants, and the raising of animals" (A. 591) represented a codification of the requirement contained in St. 1920 c . 601, §7 , protecting the uses in existing structures . See generally, Mendes v. Board of Appeals of Barnstable, supra. In essence, .Barnstable-' s 1929 zoning: by-law limited the town' s zoning to residential uses, except for the then-existing, protected business and 18 commercial . uses . It also- permitted a property owner to seek a special permit from the Board of Selectmen for "any business or industry" in a residential zoning district. As such, the 1929 zoning by-law is remarkably similar to the zoning. by-law. in the town of- Egremont; which was recently upheld by the Supreme Judicial Court, in all significant respects, in the case of Gage v. Town of Egremont, 409 Mass . 345 (1991) . Specifically, Egremont' s by-law divided the town into two residential zoning districts, and barred the use of land for retail business or service purposes except by special permit. The lower court had struck down the provisions allowing only -residential zoning districts, holding •that such provisions violated the I uniformity requirements of .G.L. c . 40A, §4 : The Supreme Judicial Court, in reversing the lower court, ` found that " [s] ection four does not direct that every, municipality adopting a zoning by-law have more than one zoning district or that such a by-law permit business uses as'- of right ,in some part of the municipality" . Id. at 348 .9 9/ The portion of the by-law which the court found invalid dealt with the provisions which allowed special permits for "any other uses determined by the Planning 19 A challenged provision in a zoning by-law is presumptively valid. See Johnson v. Edgartown, 425 Mass . 117, 121 (199:7) . In rejecting the 1929 zoning as "spot zoning" , the trial court relied on a series of cases which are inopposite, particularly in light of the Egremont decision. See e.g. •, Smith v. Board Appeals of Salem, 313 Mass . 622 (1943 ) (amendment to zoning ordinance deemed invalid because creation of funeral home district improperly aided a single property owner) ; -Leahy v. Inspector of Buildings of City of New Bedford, 308 Mass . 128 (1941) (amendment to zoning ordinance which rezoned only one parcel for the sole purpose of benefiting a single property owner was deemed to be unauthorized) . Clearly, the 1929 Barnstable zoning by-law does not single out one parcel. . of land for disparate treatment, as has been the circumstance in which other amendments to zoning enactments have been invalidated as constituting "spot zoning" . The trial court correctly found that in 1929 " . . .Wakeby Road was nothing more than a cart path through the woods . If the [19291 by-law did control, the Property would have been deemed. residential . Board..." which the court found, failed to comply with the provisions of G.L. c . 40A, §9 . Id. at 349 . 20 i inasmuch as there was' •no commercial use of the Property until the late 1940 ' s . Under this theory, the gravel pit, without variance was an illegal nonconforming use under the. 1929 by-law..." (Findings of Fact, Rulings of Law and Order of Judgment at pages 6-7) . . Gifford does not dispute this fact admitting that when Lorenzo Gifford purchased the property in 1945, it was woodlands . (A. 58-59) . As such, Gifford has clearly failed to meet its burden of proving that the use of the locus as a sand and gravel pit and the melange of other unpermitted uses which are currently taking place on the premises lawfully began before 1929 and continued, without. being. abandoned through the present.. Hall v. Zoning Board of Appeals of Edgartown; 28 Mass . App. Ct. 249, 258-259 (1990)-. C. The Trial Court Erred in Failing to Rule that. Gifford and his Predecessor in Title Had, As . a Matter' of Law,- Abandoned Any Preexisting, Nonconforming Use. Even assuming for the sake of argument that zoning did not become effective on the parcel until 1956, the actions of Gifford and its predecessors in changing the use of the premises, as a matter of law, constituted acts of abandonment. 1. In obtaining zoning relief to conduct an auto salvage use on the premises, the predecessors in title to the subject 21 locus, abandoned any claimed nonconforming sand and gravel use. In the 1960 ' s the locus was the subject of several decisions of the Board. (A. 648-656) . When in 1964, the Board granted a petition for a variance to allow the locus to be used for the salvage of vehicles and storage of used parts, the Board' s decision stated, in pertinent part : "The location in which the petitioner proposes to locate his business is in a gravel pit near Wakeby Road in Marstons Mills . " [Emphasis added] . (A. 658-659) . The fact that the petitioner was requesting to locate the newly proposed use in the existing gravel pit strongly suggests that the new use, as granted, replaced any gravel pit use that may have previously existed there. (A. 653) ." 1 0/ In Appeal No. 1961-41, the board of appeals denied a request for a variance to permit the use of the premises for the storage of used cars and used auto parts under a Class 3 Salvage License, stated, in pertinent part: "The premises which [the Petitioner] proposes to use off Wakeby Rd. are located in a deep hollow which is not suitable for residential purposes . Part of the area had been used as a sand pit. " [Emphasis added] . (See Appeal No. 1961-41) (A. 649) . In 1961, the petitioners, whom are predecessors in title and interest to Gifford in the instant action, presented information to the board of appeals which supports the proposition. that, as early as. 1961,. the — property -was no longer being used as a . "sand pit" , but rather that it had, prior to 1961, been used as such. Therefore, even as early as November 30, 1961, and perhaps even earlier, there is evidence that the use of the property as a sand pit had been abandoned. 22 Similarly, Item Nos . 7 and 8 of said petition stated in pertinent part "7 . State present use of premises : Gravel pit bordering road. 8 . State proposed use of premises : Parts-salvage under license (Family business) . " (A. 650) . The applicant, L. Thatcher Gifford, through his attorney, Joseph H. Beecher, stated that the current use of the premises was a gravel pit bordering the road and stated that the newly proposed use was parts-salvage under license. (A. 653) . Nowhere in the petition to the Board made by the Gifford' s predecessor or in the Board' s decision granting said petition, is there any indication, express or implied, that the present use of the premises as stated in the petition, " [g] ravel pit bordering road" was to be continued along with the newly-requested and granted use of parts-salvage under license. (A. 650-653) . The zoning- by-law in effect in the town of , Barnstable in 1964 pertaining to the discontinuance or abandonment of legal pre-existing nonconforming use stated - that " [n] o such .nonconforming use that has been discontinued for three years shall be re-established unless first authorized. by special. permit from the Board of .Appeals . " Article III, chapter III, D.3 . (b) (A. 599) . Based upon the petition for the variance 23 and the unappealed terms of the variance granted by the Board, it is clear that the Gifford' s predecessors : (1) had discontinued the previous use of the property as a gravel pit bordering the road, (2) had manifested a clear and unequivocal intent to abandon it . Pioneer Insulation & Modernizing Corp. v. Lynn, 331 Mass . 560, 565 (1954) . The next petition to the Board concerning the premises was made by William Gifford and Maynard Gifford on February 27, 1969, through their attorney John P. Curley, Jr. , Esq. (A. 654) . The zoning by-law in effect in the town of Barnstable in 1969 pertaining . to -the discontinuance or abandonment of legal pre- existing nonconforming uses stated " [t]he Board of Appeals may grant a special permit for the following exceptions to -the zoning by-law:... (P) 6 . Re-establishment of a ,nonconforming use which has been discontinued for three (3 ) years . " (A. 627-628) . The petition requested permission to extend the nonconforming use by constructing a building for the sale of used auto parts and second-hand vehicles . (A. 654--655) . The petition submitted stated in pertinent part. "7 . State present use of premises : Metal Salvage; 8 .. State proposed. use of premises : Used auto parts . " (A. 654) . The Board' s decision in Appeal No. 1969-17, granting a request for 24 a variance to permi.t ..the construction of a larger structure to include the sale of used auto parts and second-hand vehicles,. contains no indication of a gravel or sand use. (A. 656-657) . Therefore, as of 1969,. the Gifford' s predecessor was no longer claiming any use of the premises relating to sand -or gravel mining or excavation. Also of importance is the petitioner' s counsel' s description of the premises in support of the requested 1969 variance. "Mr. Curley further. stated that the Petitioner' own approximately 14-16 acres and that the operation..of the salvage yard would be located in the middle of the parcel surrounded by woods on three sides and the power line on the back. " (A. 657) (Emphasis added) . Thus, in 1969, by the Gifford' s -predecessor' s own characterization of the parcel, the location of the salvage operation was to be in an area . on the property surrounded by woods and bordered by the power line easement on the back. (A. 6.57) . No mention is made in 1969 of any sand or gravel use, or., for that matter,' the existence of any gravel pit or sand pit on the property. From said description, it is clear that in- 1969 . (1)- the parcel was still heavily wooded; .and. (2.) the parcel; or any portion thereof, was' not being utilized for any sand or gravel use. 25 Again, here, too, is clear evidence that, as of 1969, any prior sand or gravel uses at the property had been discontinued. It is also a clear and contemporaneous manifestation of the petitioner' s intent concerning the use of the property. Through their acceptance of- the Board' s 1964 and 1969 permits, the petitioners abandoned any use of the premises as a sand or gravel excavation operation. (A. 656-657) . The factual situation in this case is analogous to that presented in Ka-Hur Enterprises, Inc. v. Zoning Board of Appeals of. of Provincetown, 424 Mass . 404 (1997) . In Ka-Hur, both the Appeals Court and the Supreme Judicial Court held that., where- the plaintiff ' s predecessor in title had changed the use of the property from a pre-existing .nonconforming use of fuel oil storage to a primary use of a fishing and truck repair operation with any storage of fuel oil being merely incidental or ancillary thereto, the Plaintiff' s predecessor had changed the use and had, therefore, abandoned the prior nonconforming use. Like the Plaintiff in Ka-Hur, the evidence recited above clearly shows that in the 1960 ' s, Gifford' s predecessors had changed the primary use of .the. property from sand and gravel extraction to auto salvage and used auto parts sales . At the time of this 26 change, the Gifford' s predecessors -abandoned any prior pre-existing nonconforming use of. sand and gravel extraction. After such an abandonment, Gifford or his predecessors,. were required under the Barnstable' s zoning by-laws to obtain a special permit in -order to i legally re-establish or resume the previously discontinued and abandoned nonconforming use, if any. (A. 599, 626-627) . This failure by the petitioners, in both 1964 and 1969, .to affirmatively request or indicate a desire and intention to continue any sand or gravel use is also i similar to the situation presented in Dawson v. Board of Appeals of Bourne, 18 Mass . App. Ct. 9.62 (1984) . In Dawson, the Appeals Court held that, under the two prong test first enunciated in Pioneer Insulation & Modernizing Corp. v. Lynn, and later re-stated in Dobbs v. Board of Appeals of Northampton, 339 Mass . 684, 686 (1959) , "there was an abandonment of the use of the property as a nursing home when the license to maintain a nursing home was, surrendered. " Id. at 963 . The court- also relied -on the fact that the Plaintiff in Dawson had notified the local Department of Health that it had decided to close the nursing -home. .. Id. at . 962 : In the instant case, -as in Dawson, the Gifford' s predecessors, through their communications with the 27 Board in. 1961, 1964 and .1969, manifested an intent to abandon their use of the property as a sand and gravel operation and exhibited voluntary conduct carrying with it the implication of said abandonment. 2. Under the holding of the Ka-Hur case, the actions of Gifford in vastly extending the claimed nonconforming use without permission, as a matter of law, constitutes an act of abandonment, resulting in the loss of any legal pre- existing use on the subject locus. Currently, the principal use of the locus is the pro ces.s.ing=and-ma-nu=f--ac-tu-re-o f=1`oam-to-p-r-oduc e=a--s:a 1 able loam_p-r_educ-t-,a�u_se which_is-no-t pe-r-m _tt.e.d-under current zoning. (A. 451) . Additionally, the testimony revealed that since approximately 1985., portions of the premises have been leased to a variety of contractors to serve as their respective contractor' s yard, to people storing boats, and generally has been made available to anyone who wants to hide a noxious industrial use. (A. 159-161, 194-196) . Where, as here, the alleged nonconforming uses have both changed, expanded and multiplied; Sections 4-4 . 4 (2) and Section 4-4 . 5 of the zoning ordinance require that a property owner receive a special permit from the Board before any change..or expansion. of a nonconformity. can legally occur. (A. 547-549) . Prior zoning enactments similarly prohibited the change or expansion of a 28 nonconforming use without approval from the Board. (A. 599, Section (D) (3 ) ; A. 619-620 . Section G, at p. 3 ) . Under the holding. of the Ka-Hur case, where, as here, the actions of Gifford in vastly extending the use without permission constitutes an act of abandonment, i resulting in the loss of any legal pre-existing use on the subject locus . See Joshua M. Alper and Caroline Woodward, Ka-Hur Enterprises; Inc. v. Zoning Board Of Appeals Of Provincetown: Extinguishment Of Nonconforming Uses, Boston Bar Journal. (January/February, 1998) ." In an attempt to obfuscate the consequences of its -illegal actions, Gifford had .previously argued that the loam processing operation is somehow accessory or incidental to the alleged nonconforming sand and gravel use . An accessory use must be both subsidiary to the primary use of the locus and related to that primary use . Gallagher v. Board of Appeals of Acton, 44 Mass . App. Ct . 906, 907 (1997) (and cases cited therein) (rescript) ; See also Bobrowski, Handbook of Massachusetts - Land Use and Planning Law §12 . 1 (1993) : In this regard, courts have rejected arguments that a protected sand and gravel removal operation can be changed and expanded without zoning board approval to include other earth removal processes or manufacturing processes not part of the original use. Town of Burlington v. Dunn, 318 Mass . 216 (1945) (change from sand and gravel removal to a soil stripping operation constitutes an. impermissible change of a nonconforming use) ; Seekonk v. Anthony, 339 Mass . 49 (1959) (a sand and gravel pit which was legally nonconforming, had illegally. expanded to include. a "ready.mix" concrete processing operation) : . Moreover, even .in`. instances where an accessory use was established as incidental to protected nonconforming use, courts have consistently held that the change of use from an incidental or accessory use to a commercial venture in its own right 29 D. The Trial Court Correctly Found- That If Zoning Became Effective in the Town of Barnstable in 1956, that Whatever Pre- existing Nonconforming Use Existed on the Subject Property is Limited to the Area 'Devoted to Gravel Removal Prior to 1956. Gifford does not contest the fact that it and its predecessors have substantially expanded and extended the area and scope of its claimed pre-existing nonconforming sand and gravel use, without ever obtaining a special permit from the zoning board of appeals as it currently required under Sectionc4-45—o=f� the=zon-ing=or-d nanc--e (A. 547-548) or as was mandated under previous zoning enactments . (A. 599 . 627-628) . Nor does Gifford challenge the trial court' s finding that in 1956 the sand' and gravel operation only occupied a small portion of the subject locus . (A. 55- 57 , E. 17) . Rather, Gifford incorrectly asserts that the trial court erred in failing to find that the Gifford' s predecessor manifested an objective intent to occupy the entire parcel for its sand and gravel operation and that such a finding would somehow avoid the implications of the three-prong test articulated in Powers v. Building Inspector of Barnstable, 363 Mass . constituted a change in use in violation of zoning. Building Inspector of Groton v. Vlahos, 10 Mass . App. Ct . 890, 891 (1980) ; Jasper v. Michael A. Dolan, Inc. , 355 Mass . 17, 24, (1968) . 30 i 648 , 652 (1973) . Further, Gifford argues that the trial court committed error in refusing to adopt the "diminishing assets" theory, which Gifford asserts stands for the proposition that once a property owner uses a portion of the property, however small, for sand . or gravel excavation at some time prior to the adoption of the zoning by-law, the property owner is entitled, as a matter of right, to extend or expand such use out to the property boundaries regardless of the effect such"expansion has on the surrounding residential neighborhood. As is set forth more fully below, the trial court, in its thorough analysis of the sand and gravel use on u the premises and the applicable case law in Massachusetts as well as in other jurisdictions, co:rr-e_c-_t1_y-r_u1-ed=tha_t=if-z.on ng_be_c-ame-ef-=f-ect-ive=on=they pareel_in 1956,, whatever-_noncon€o-r-m=ing-txse�a t-a- ing pLac_e=on=the-prem ses=is 1=im t-ed-to-the,area-devo_t.ed-t_o— gr-awe-l-r_emoVa-1 pr_i_or to 1.95-6--_ 1'. Under applicable Massachusetts cases, the trial court correctly found that - if zoning became effective in 1956, that removal of gravel is limited to the area, devoted to gravel removal prior to 1956. As noted by-the trial court., a series of. . Massachusetts cases have squarely addressed the issue of the legally permissible expansion of an alleged 31 nonconforming use of earth removal or extraction. See Burlington v. Dunn, 318 Mass . 216 (1945) ; Billerica v. Quinn, 320 Mass . 687 (1947) ; Wayland v. Lee, 325 Mass . 637 (1950 (hereinafter "Wayland 1" ) ; Wayland v. Lee, 331 Mass . 550 (1954) (hereinafter "Wayland II . " ) One of the earliest reported cases to consider the expansion Iof a claimed nonconforming use of earth removal was Burlington v. Dunn, 318 Mass . 216 (1945) . In Dunn, the town of Burlington brought a bill in equity to enforce the town' s zoning by-law by restraining the defendants (the property owners) from removing topsoil or loam from two tracts of land they owned. The defendants claimed, inter alia, .that they were permissibly -continuing a pre-existing nonconforming use of loam removal, which was protected by G.L. c . 40, §26, the then effective statutory predecessor to G.L. c . 40A, §6 . G.L. c . 40, §26 stated, in pertinent part, that a by-law "shall not apply. . . to the existing use. . .of land to the extent to which it is used at the time of the adoption of the . . . I by-law, . but it shall apply to any change of use thereof G.L. (Ter. Ed. ) c . 40, §26., as inserted by St . 1933 ; c.. '269, .§1 . On. facts .nearly..indistinguishable from those alleged by Gifford in the instant case, .the court held " [w] e think that the stripping of the 32 surface soil from the whole acreage would have an . altogether different effect upon the neighborhood than the operation of the former gravel pit in its original location and would amount to a change of use beyond the protection of §26 . " Id. -at. 223 . . (emphasis supplied) (citations omitted) . " The court also observed that " [e]ven if the present purpose of stripping the soil is to get at gravel beneath it, which can hardly be the case over the whole area, that process is at least an extension of the former use and so -is not protected by §26 . " Id. at 223 . (citation omitted) . " The facts found in Dunn were: (1) before the adoption. of the applicable. by-law there, had been a . gravel pit of considerable size. on one portion of the . forty-four acre premises; (2) topsoil had been removed in this portion of the premises devoted to the gravel pit prior to -the adoption of the by-law to get at the gravel; arid,- (3 ) gravel had been removed -from that portion of the parcel prior to the adoption of the by- law. Of tantamount importance to the holding in Dunn, - is .the. court' s observation that: " [t]_he—r-_ec.o:r_d�do.es:no-t. disc--l-ose the—exact=d=im—en s ons=of =the=gra_v_el tp t-;_bud—i-tom would seemrt_o have=c.ompr--i-s.ed=on-l-y_a_sma l—port.i.on-.of_. tFhe—to-ta--l—acreage:" Id. at 223) . On these facts, the court granted the town the relief it prayed for with 33 the exception that the defendants were permitted "to remove topsoil to get at and remove gravel in the location of the gravel pit as it existed at the time of the adoption of the by-law. " [Emphasis added] . The court also stated that a further hearing could be had "to determine the exact boundaries" of the area that can fairly be found to have been devoted to the existing use of removing gravel at the time of the adoption of the by-law. Thus, the court, relying on the proper interpretation of G.L. c . 40, §26, the predecessor •to 'G.L. c . 40A, §6, refused to allow the property owners to subsequently change their use from a' pre-existing nonconforming use of gravel removal to one of topsoil removal and refused to allow, in any event, i any activity on the parcel to extend beyond the initial geographic boundaries of the area devoted to gravel removal as those boundaries existed at the time of the adoption of the by-law. In the instant case, the trial court found that in 1956, the date the court determined zoning became effective on the parcel, the original gravel pit only l occ-u-p.- .edema=sma1-1_ar_ea_o-f—the=par-cel, "...ab-o_ut 3-0-0 feet n_o-r-t_o.f;Wakeb_y=Road=;" (Findings of Fact, Rulings of Law and Order of Judgment at pages 2; 7) . This is evidenced in the 1955 aerial photograph (E. 17) which 34 reflects a parcel that has very little disturbance aside from the area adjacent to Wakeby Road. Further, this is confirmed by the testimony -presented by Priscilla Gifford at trial that only a small area by Wakeby Road was devoted to commercial use. .(A. 54) . . The trial court also correctly found. that "...plaintiff has failed to establish that as of 1956, the entire parcel had been as a gravel pit. On the contrary, this Court finds that the Giffords intended multiple uses for the parcel . The auto salvage operation was established along the eastern-boundary of the-lot. By the terms of the variance it was to be screened from-v ew by the surrounding woodland owned by the Giffords . No test borings were done, no clearing . of the back land was accomplished; in short no provisions were evident circa 1956, indeed prior to 1985, suggesting any intent to use a substantial portion of the premises for screening gravel..." (Findings. of Fact, Rulings of Law and Order of Judgment at page 8) (citations omitted) . In addition to the 1955 aerial photograph which clearly depicts that only a small portion of the parcel was. appropriated. for any .use: (E. 17) the record is replete with .evidence that supports the judge' s findings . As discussed in detail above, in 1964 and 35 1969, the. Giffords obtained zoning relief to allow them . to conduct and expand an auto salvage operation on the subject locus . (A. 650-657) . Testimony was elicited at trial that the only apparent use of the premises in the early 1960 ' s was that of an auto salvage yard. (A. 344734.6) . Beth Linnell, the daughter of Patricia and William Gifford, who was born in 1965 and resided on the premises until approximately 1987, described her father' s predominant use of the premises as a junkyard with very limited activity involving the removal of sand and gravel . (A. 64-67) . Similarly, Robert Bortolloti testified that when he first became familiar with the subject. property in 1986, it was comprised of . an auto salvage yard with a small sand and gravel operation. (A. 192-195) . Whatever roadways were constructed had no particular relation to the sand and gravel operation but rather were used to access the auto salvage yard (A. 105) or purely for recreational purposes . (A. 113-114) . An appellate court should "accept the judge' s findings of fact as true unless they .are clearly erroneous Kendall v. Salvaggio, 413 Mass . 619, 620 (1-992) ; Lexington v: .Simeone,. 334 .Massa 127 (1956) : A finding is "clearly erroneous" only where "the reviewing Court on the entire evidence is left with the 36 definite and firm conviction that a mistake has been committed" . J.A. Sullivan Corp. v. Commonwealth, 397 Mass . 789, 792 (1986) . Where, as here, a trial judge ' s findings are "based wholly or in part upon the credibility of witnesses testifying before him, and the weight to be ! given to their testimony, due weight must be given to his findings" . Boston v. Santusuosso, 307 Mass . 302 , 331 (1940) . Determinations of credibility of witnesses "is quintessentially- the domain of the trial judge, in which the Judge ' s assessment is close to immune from reversal on appeal except on the most compelling of showings Johnston v. Johnston, 38 Mass . App. Ct . 531, 536 (1995) . In the instant appeal, Gifford has' failed to produce any cogent argument to meet its overwhelming burden of demonstrating that the trial court' s findings were clearly erroneous . See First Penn Mortgage Trust v.. Dorchester Savings Bank, 395 Mass . 614, - 621-624 (1985)' . It follows, therefore, consistent with the ruling in Dunn, that Gifford shout-d—be lirn= ted--to=that,, a--r-_ea—of-the p.r_op_er_ty devoted.totes:and_and=gr-ave=l--r=emova-1 a-t_the----time-of_the adopt.i.on_o-f-=.the=app_1=i.cable-zoning by in_th- e town-o-f_B.arnstable. `3� In the same line of cases, the court in Billerica v. Quinn, 320 Mass . 687 (1947) reached the 'same conclusion. as it did in Dunn two years earlier. The court in Quinn held that, where nothing has been done appropriating the land other than the particular area . that had been stripped prior to the adoption of the zoning by-law prohibiting the earth removal use sought to be continued, the earth removal use must be limited to the area devoted to such removal at the time of the adoption of the applicable zoning by-laws . - Similarly, contrary to Gifford' s characterization, in the case of Seekonk v. Anthony, 328 Mass . 236 (1952) , the court specifically found that prior to the enactment of zoning, the entire parcel had "to a substantial extent" been excavated and stripped of sand and gravel . The court .in Seekonk distinguished its facts from those presented in Dunn by noting that in Dunn the stripping that predated zoning was confined " . . . to a small part of the land. " Seekonk v. Anthony, 328 Mass . at 237 . In the instant case, the 1955 aerial photograph (E. 17) shows only a ' small area of disturbance on the locus.. Gifford relies mistakenly on Wayland .Il to support its argument that a gravel pit can. be expanded to .the outermost limits of -the property owner' s parcel regardless of the initial boundaries of the area within 38 which said use was confined at the time the zoning by- law was enacted. Despite Gifford' s erroneous reliance on Wayland II-, the Supreme Judicial Court in that case, which merely clarified the earlier decision of the court in. Wayland I, on facts similar to those -presented in .Dunn and Quinn, reached the exact same decision as it did in Dunn -some nine years earlier. In fact, the Court in Wayland II expressly followed Dunn and Billerica v. Quinn. "As in Burlington v. Dunn, 318 Mass . 216, 224, the defendants are entitled to remove sand and gravel in the location of the [areas on the property within which the use had been existing at the I time of the adoption of the. zoning by-law. and not i subsequently abandoned] ' as they existed at the time of the adoption of the zoning by-law. As in [Burlington v. Dunn] a further hear ng_may be_neede.d t-o—det-ermine th_e_exact—bound-a-r-_i.es=of the=a-r-e_a_=deVo-t.ed=to=tho:s:e=p-i=ts=. See also Billerica v.* Quinn, 320 Mass .' 687 , 689 . " Wayland II at 552. In sum, "the flurry of zoning cases on the application of zoning law to� gravel pits"' .(Findings of Fact, " Rulings of Law and Order of Judgment at page 8) all Support. -the 'trial court' s conclusion that where a pre-existing nonconforming gravel removal use can be established, it must be confined to those boundaries 39 existing 'at the time of the adoption of the by-law which made it nonconforming. 2. The trial court correctly found that under the three-prong test articulated in Powers v. Building Inspector of Barnstable, 363 Mass. 648, 665 n.4 (1973) , Gifford impermissibly expanded the nonconforming use of the premises. In analyzing whether Gifford had illegally changed and expanded its claimed nonconforming use, the trial court correctly determined, that the so-called three- prong "Powers" test, articulated in Powers v. Building Inspector of Barnstable, 363 Mass . 648 (1973 ) and in Bridgewater v. Chuckran, 351 Mass . 20 (1966) , must also be applied in order to determine whether a change or substantial extension of a pre-existing nonconforming use has occurred. The three tests are as follows : " (1) Whether the use reflects the `nature and purpose ' of the use prevailing when the zoning by-law took effect, (2) Whether there is a difference in the quality or character, as well as the degree, of use, (3) Whether the current use is different in kind in its effect on the neighborhood' . " Bridgewater v. Chuckran, 351 Mass . at 23 (1966) . Applying these three tests to .the instant case, the uncontroverted evidence, as found by the trial court and essentially undisputed by Gifford is that the expanded use of the property is, 40 at the very least, different in kind in its effect on the neighborhood in the form of "...increased noise, dust and possible structural consequences . " (Findings of Fact, Rulings of Law and Order of Judgment, at page 12) . The testimony of the abutters to the property, as to the complete disruption to their lives that has resulted from the actions of Gifford in ruthlessly conducting a commercial operation in a residential neighborhood, provides compelling evidence of the impact of an illegal and unpermitted expansion of nonconforming uses, which continues unchecked. (A. 296- 297 , 304, 307, 316, 325-326, 328, 331-332) . The trial court' s conclusion, .based on the later- developed three-part Powers test, comports squarely with the earlier observations of the Supreme Judicial Court in those above-cited cases which addressed the issue of the propriety of, and limits to be placed upon- attempted expansions of pre-existing nonconforming earth removal uses . The trial court' s reasoning is- also consistent with Massachusetts decisions which have acknowledged that' the spirit of zoning is to restrict rather than to increase non-conformities . See generally, Cox v. Board of Appeals of.. Carver, .. 42 Mass.. 41 App. Ct . 422 (1997) ; Blasco v. Wichendon, - 31 Mass . App Ct. 32 , . 9 (99) . 12 In Cox, the plaintiff sought to expand a mobile home park onto adjacent land. Relying on the analysis set forth in Rockwood'v. Snow Inn Corp. , 409 Mass . 361 (1991) for nonconforming structures, the court held that extensions of nonconforming uses, as well as structures, are permitted only if (1) the extensions .or changes themselves comply with the by-law,. and, (2) the use as changed or extended is- found to be not more detrimental to the neighborhood than the pre-existing nonconforming use. In so reasoning, the court observed " [w] e .see no reason why the same test is not equally applicable to any change or substantial extension of a nonconforming use. " Id. at 426 . The court in Cox also 12/ As an alternative argument, Gifford asserts that even if the sand and gravel operation was illegally expanded and new, unpermitted "ancillary" uses were added, such uses should be allowed to continue, because otherwise Gifford can make no use of the property. Clearly, there is nothing to legally preclude Gifford from using the property for residential use, which is the principal permitted use in the RF (residential) zoning district (A. 451) . Further, . Gifford can engage in the salvage operation, as long as it is in compliance with the previously-issued variances, special permits..and licenses.. (Findings of Fact, Rulings of Law and Order of Judgment at. page 5`; paras.. 17-18) . Moreover, under the town' s zoning ordinance, Gifford can seek a special permit from the zoning board of appeals to change and/or expand a nonconforming use. See Section 4-4 . 5 (A. 547) . 42 stated that: " [a] finding that the extension of the nonconforming use would not be substantially more detrimental to the neighborhood is simply not enough. " Id. at, 426 . While in Cox the court held that a change or extension of a nonconforming use could- not- be i sustained where both of the above-enumerated. requirements were not met, Gifford' s - extended use, in the instant case, falls shorter still- of achieving the alleged continued protection because said use fails to satisfy either of the requirements as recently enunciated in Cox. While not disputing that the expansion of gravel mining has had an adverse impact on the surrounding residential neighborhood, Gifford argues that the Powers test is inapplicable because the neighbors knew or should have known that there was a nonconforming use in the- neighborhood. However, this assertion would essentially. eviscerate Powers since the analysis- is premised on. the notion that any expansion of a use which no. longer conforms- with the permitted uses in the neighborhood can- only be undertaken, with permission of the zoning -board of appeals, -if ,such use is not 43 different in kind with its effect on the neighborhood.13 3. Not only did the trial court correctly rule that the "diminishing assets" test is not consistent with Massachusetts law, but also that the application of the diminishing assets test under the facts found by the trial judge would not change the outcome. Relying almost exclusively upon the New Jersey case of Moore v. Bridgewater Township, 173 A. 2d 430 , 437 (N.J. Super. 1961) , 14 Gifford argues that the "diminishing assets" theory should be applied herein. However, as noted by the trial court, not only has 13/. While Gifford concedes that a municipality is not estopped from enforcing its zoning ordinance because public officials may have erroneously issued permits or decisions in the past, Ferrante v. Board of Appeals of Northampton, 345 Mass . 158 (1962) , it continues to argue that the town is somehow to blame for its current predicament. In so stating, Gifford fails to . acknowledge that it sought injunctive relief against the town to prohibit the town from interfering with its contract with 44 Gravel and Sand, Inc . (A. 150-151, 394) . Unlike the myriad of somewhat sympathetic fact patterns where the theory of estoppel was nevertheless rejected, Building Inspector of Lancaster v. Sanderson, 372 Mass . 157 (1977) ; O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass . 555 (1986) ; Balcam v. Town of Hingham, 41 Mass . App Ct. 260, 264 (1996) , in the- instant case, any purported injury suffered by Gifford was clearly self-inflicted. 14/ Subsequent legislative efforts to `limit the nature • and scope of the quarry operation on the site upon which the Moore decision was based, has been upheld. Dock Watch Hollow Quarry Pit v. Town of Warren; 361 A. 2d 12 (N.J. 1975). 44 i Massachusetts rejected this theory, but it is i inapplicable to the facts presented in the case at bar. Specifically, even in states where the diminishing assets theory is embraced have held that, "...simply because the nature of the use involved a diminishing asset does not necessarily justify its expansion. Because of the expressed aversion toward expansion of nonconforming use, the `diminishing asset' theory must be applied with caution... Als'o, neighboring property may be developed for residential or other uses which are incompatible with the mining use in reliance on the perceived dormancy or limitation of the excavation activity at the .time it became. a nonconforming use. " Township of Fairfield v. Likanchuk's, Inc. , 644 A. 2d 120, 124' (N.J. 1994) . As noted by the trial court, the Township of Fairfield -case which relies on Moore uses reasoning very -similar to the Massachusetts courts in ' cases such as Wayland v. Lee, 331 Mass . 550 (1954) and Burlington v. Dunn, 318 Mass. 216 (1945) which focus upon the intent of the property owner as objectively manifested. in the specific location of the operation. :at the time that the more restrictive zoning- enactment was adopted. Township..of Fairfield v.' Likanchuk's, Inca,. 644 A.-. 2d at 124 . In finding no "objectively manifested" intention on the part of the property. owner" 1 - 45 to expand the mining operation to the entire parcel, the court in Township of Fairfield v. Likanchuk's, Inc. , came to a conclusion remarkably similar -to that of the trial court herein holding that the property owner had engaged in gravel mining sporadically and "...when the mining was initiated and for many years thereafter, the primary use of the parcel was for the automobile salvage yard; mining was at best an incidental use. Significantly, after 1969, a substantial residential .development was constructed contiguous to the property. The developer and subsequent buyers no doubt relied on the perceived limitation of the mining activity. " Id. at 224 . Contrary to the urging of Gifford, not only is the "diminishing assets" theory not applicable to the instant case, but the Massachusetts courts have been wise to reject it in light of the devastating impact the unbridled expansion of a commercial use can have upon a surrounding residential neighborhood. CONCLUSION. For the reasons set forth above, the judgment of the trial court should be modified in part, so that the decision of the Board, finding that. the ' only permitted uses on the premises are single-family residential use and auto salvage, consistent with the terms of the s 46 previously-issued permits, is reinstated and that Gifford' s complaint is dismissed. In the alternative, the decision of the trial court should be affirmed. Dated: November 30, 2000 . ROBERT D. .SMITH, Town Attorney [B. B. O. No. 4699801 RUTH J. WEIL, 1st Asst , Town Attorney (B. B.O. No. 519285) T. DAVID HOUGHTON, Asst . Town Attorney [B. B. O. No. 241160] TOWN OF BARNSTABLE 367 Main Street, New Town Hall Hyannis, Ma. 02601-390.7 (508 ) 862-4620; (508 ) 862-4724 Fax 47 49 i ADDENDUM 51 T=n=tVrdt4 of Mass rijimem BARNSTABLE, ss. SUPERIOR COURT No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL,°INC. VS. ZONING BOARD OF APPEALS, TOWN OF BARNSTABLE FINS NGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT This is an action brought by the plaintiff pursuant to G.L. c. 40A, § 17, seeking to overturn the decision of the Barnstable Zoning Board of Appeals (`Board"), which upheld the building commissioner's order that the plaintiff cease business activity at its property on Wakeby Road. The complaint contains additional counts for declaratory relief and damages due to an allegedly unconstitutional taking without compensation effected by the Town of Bamstable's ("Town') application of the zoning by-law to the Property. The case was tried over the course of three days, April 27 - 29, 1999. This court viewed the Property. Based on all of the credible evidence, the court enters the following findings of fact. FINDINGS OF FACT 1. Plaintiff, Gifford Brothers Sand and Gravel, Inc. is a corporation organized under the laws of the Commonwealth of Massachusetts and is the principal owner of the subject Property. 2. The Property consists of 16.6 acres and is located at 810 Wakeby Road in Marston Mills, a village of the Town of Barnstable. The tract is irregular in shape ruining north some 1.5�0 plus.feet from its frontage on 1�'akeby Road. 52 3. Lorenzo Thatcher("L.T.") Gifforrd,acquired the Property by deed from his uncle, Charles Gifford, in 1945. 4. In I945, the Property.was woodland, not in commercial or residential use. By 1947, L.T. Gifford had begun commercially removing sand and gravel from the Property. 5. During his years of ownership, L.T. Gifford used the Property for a variety of enterprises. Upon his death in 1972, L.T.'s sons, William and Maynard Gifford, continued in. their father's ways. 6. From 1947 through 1995, sand and gravel was mined on the Property for sale and removal to other sites. The original gravel pit was about 300 feet north of Wakeby Road. The area is clearly depicted on an aerial photograph taken in 1964 (Exhibit no. 25). Sometime after 1964 sand and gravel operations moved deeper into the tract on a path northward of the original pit. By 1988, gravel was being removed in an area about 750 feet north of Wakeby Road. 7.' Insufficient evidence was presented documenting the frequency and value of mining operations between 1947 and 1995 to enable this court to accurately determine the extent of the Giffords' business. Nonetheless, one pertinent fact is clear: the business, while not operated on a daily basis, was continual.' At least as to the elder Gifford, the pit business was a cash-in-pocket operation. S. The Giffords used excavation equipment to dig the material, a mechanical screener to sort it, and large trucks to haul the finished product. ' No evidence was offered to show that the business complied with, or failed to comply with, the Town's earth removal by-law. Municipalities in Massachusetts were enabled to create such a specific.by=law by statute added in 1949: See G.L. c. 40, § 21(17). Barnstable enacted . s.uch.a by-law.. Because no discussion was offered.by the parties on the subject, this court also . declines comment, as it is not determinative here. 53 9. At any one time prior to 1995, the sand and gravel operation occupied but a small portion,of the Property, at most=five-acres.. The Giffords' primary business was the repair and salvage of automobiles. Numerous junk vehicles were placed on the Property, more or less concentrated along the easterly side of the Property mid wa--y_back_from Wakeby Road. Near to wAcebv-Road,,buildings were erected to accommodate the repair and salvage_business. A welding shop was maintained:::in-th-e=bui'ldings. The repair and salvage trade was a us.e=secured by variance from the Zoning Board in 1964. 10. Duringthe Giffords' tenure ortions of the Property were leased to, p p rty local business for the storage of heavy equipment, tools, trailer bodies, boats, etc. This activity was concentrated along the westerly side of the Property in the first few hundred feet from Wakeby Road. 11. The northernmost portion of the Property was largely unused until the 1980's. Wood roads, the handiwork of the Giffords, crisscrossed the acreage, but no relation between the wood roads and the gravel pit was proven to this court's satisfaction at trial. Around 1987 or 1988, William Gifford removed the trees and topsoil in the northwest quadrant of the Property. [See aerial photo of 1989;exhibit 21]. 12.' On occasion prior to 1995, construction debris, stumps and brush were buried on the Property. I 13.- By 1995, plaintiff was in control of the Property. The summer of 1996 brought a significant change to the land. The Town was in the process of capping its landfill (the"town dump'). The contractor for the project entered into an agreement with plaintiff to secure fill from the Property. During a four-month.period approximately 1M-,000-tons_of gravel was removed. The no-rthwe-st_quadr-ant of the Property yielded the bulk of the fill. Along the northwest boundary mining operations were taken to, and in spots over, the property line. Along.. the.northeast.property line the excavation advanced towards the.residential.neighborhood of 54 . IM_Iockingbiid--Lane. The buffer of trees between the excavation and the property line was removed. Families living along the southwest side-QfMi—ockingbird Lane bore the brunt of the full scale mining operation. Their homes were coated with dust, the ground and buildings shook from the use of heavy equipment,-and their waking and sleeping hours were interrupted by noise. 14. The Town of Barnstable enacted a primitive zoning by-law in 1929.2 I I 15. In 1956, the Town revised the zoning by-law to place the Property in a residential zone. The current zoning by-law continues that designation, now known as an RF zone [See Exhibit no. 3A]. :The by-law, Article 10, stated: The Town of Barnstable is hereby divided into districts, subject to the provisions hereinafter stated, to be known respectively as non-residence districts and residence districts as follows: Non-residence Districts subject to change as hereinafter provided, shall compromise all lands which at the time this By-law becomes effective are used for any business or industry other than farming, truck gardening, the growing of trees, shrubs,vines or plants, and the raising of animals. Residence Districts, subject to change as hereinafter provided shall comprise all areas not included in Non-residence Districts. Subject to the provisions hereinafter stated, no parcel of Iand lying in any Residence District and not at the time this By-law becomes effective devoted to any business or industry, or for any purpose except for residence or purposes of buildings appurtenant thereto, or for churches, schools and similar non-commercial or non-industrial buildings, and no permit shall be issued for the erection, alteration or conversion of any building for or to any such prohibited use upon any such parcel, except as hereinafter provided. A permit may' be issued for the erection in any residence district of a building for the purpose of any business or industry or for the alteration or conversion of a building in such district for or to such purposes, if the Selectmen shall after public hearing so order, provided that no such permit shall be granted except upon written application and after a public hearing of parties interested and consideration of their evidence by the Selectmen; notice of said he being given by publication of the time and place thereof in a local newspaper not less than two weeks before said hearing, the expense.of such publication to be borne by the petitioner..After such hearing the Selectmen shall render a decision in writing, stating the decision and the reasons therefor and file the decision with the Town Clerk and send a copy thereof to the applicant. (Exhibit no. 9). 4 55 16. In 1961, William Gifford filed an application with the Board for a variance to allow the storage of used cars.and auto parts on a portion of the Property. The request was denied. 17. In 1964, L.T. Gifford applied for and obtained a variance to operate an auto salvage business on a portion of the premises. In 1969, the Board granted Gifford permission to construct a building on the premises for use in the auto salvage business. 18. On March 13, 1996, as a prelude to the harvesting of gravel to cap the Town's landfill, the building.commissioner wrote to Town Counsel as follows: "Please be advised that the Gifford gavel pit on Wakeby Road is a pre-existing non-conforming use, and as such is lawful from a zoning perspective. In arriving at this conclusion, we talked to several people with early roots in the area, and interviewed the owner. No information was received to the contrary." [Exhibit no. 31]. 19. On.May 9, 1997, the build ina.commissioner issued a written Cease and Desist Order directing plaintiff to stop transporting wood materials to the Property and to stop processing such materials at the site [Exhibit no. 1]. =0. On October 22, 1997, the building commissioner issued a written Cease and, Desist Order directing plaintiff to stop the use of the Property as a gavel pit and to stop the processing of fill, the screening of fill, and the depositing.of fill, brush and clippings [Exhibit no. 2 1. From the latter`Order, plaintiff took an appeal to the Board. After appropriate hearings, the Board issued-its'-W itten decision on January 27, 1998 upholding the,building commissioner.[Exhibit no. 171. The present action followed in its wake. " 5 56 22. The Board found, inter alia, that: . . . (There has been evidence presented to the Zoning Board of Appeals which would indicate that at one time, this lot was, in fact, used as a gravel pit ... . No findings are made on whether or not it was ever a legal pre-existing non- conforming use . . . It was a gravel pit, prior to the adoption of zoning in that area, which is purported to be 1956 . . . The gravel operation on this site expanded beyond the original non:conforming use - assuming that the use was legally non- .conforming to an area enveloping almost the entire lot . . . There is evidence of serious erosion on this property which if allowed to continue will result in significant concern for public safety and public health. RULINGS OF LAW 1. This is an action brought pursuant to G.L. c. 40A § 17. There is no dispute as to plaintiffs standing to bring this action as an aggrieved party. His status is well recognized. G.L. c. 40 § 11; also see, e.g, Shriners' Hosp.for Crippled Children v. Boston Redevelopment Authy., 4 viass. App. Ct. 551, 555 (1976). 2. In an abundance of caution. plaintiff sought relief under G.L. c. 40A § 17 (Zoning Act) and alternatively G.L. c. 231A (declaratory judgment). While the latter is an available remedy, the former is preferred. See generally Clark& Clark Hotel Corp. v. Building Inspector of Falmouth, 20 Mass. App. Ct. 206 (1985). As such, this court proceeds under the Zoning Act. 3. The court has conducted a trial de noyo in accordance with the mandate of the statute and case law. G.L. c. 40A § 17; 39 Joy Street Condominium Ass'n v. Board of Appeal of Boston, 426 Mass. 485, 488 (1998). 4. The Board first argues that the Propem was governed by the 1929 zoning by-law, and therefore the gravel pit was never a legal use. In 1929, Wakeby Road was nothing more than a cart path through the woods. If the by-law•did control, the Property would have been deemed residential inasmuch as there was no commercial use of the. Property until the gravel pit came into being in the late 1940's. Under this theory, the Gravel pit,without a variance, was:an illegal non-conforming use under the 1929 by-law; and therefore remained an 'illegal use under the 1956 6 57 by-law. Interestingly enough, the Board seems to have ignored the 1929 by-law in its own decision, having ruled that zoning first took effect in 1956. This Court has great difficulty in interpreting the language of the by-law in order to determine if it applied to the use in question on the premises in question. Issues of interpretation need not be resolved however, for the by- law suffers from a more basic problem. The by-law simply categorized the de facto use of each parcel of land in the Town in 1929 and thereby sorted each parcel into either a business or residential zone. As applied, such a parcel by parcel setting of zoning districts effects a result where contiguous lots, which are alike in every aspect except one was in commercial use and the other in residential use in 1929, would be zoned differently. In effect, the Town created an oligopoly for pre-existing business interests in Town. Such economic advantage created by zoning runs afoul of the zoning enabling act of the era, and is now known as"spot zoning." G.L. c. 40 § 25, as added by St.1920 c. 601, §§ 1, 2, and amended by St:1925 c. 116 § 1; Opinion of the Justices to the House of Representatives, 234 Mass. 597 (1920). Also see Smith v. Board of Appeals of Salem, 313 Mass. 622, 624-25 (1943); Leahy v. Inspector of Buildings of New Bedford, 308'Mass. 128, 132-34 (1941) (zoning districts must be substantial contiguous areas, not individual parcels). Because the 1929 by-law was beyond the authority of the Town and invalid as applied to the Property, this court finds that the by-law does not govern the_outcome of this case: See Cross v. Planning Board of Chelmsford, 345 Mass. 618, 620 (1963). 5. No such problem exists with the zoning by-law adopted by the Town in 1956, which placed the Property in.a residential zone. Being in a residential zone, the gravel pit wa's rendered non-conforming under the new by-law, but was entitled to the grandfather rights accorded legal pre-existing uses by mandate of the then-existing Zoning Enabling Act, G.L. c. 40A §§ 3, 5 & 11, as added by St.1954, c. 368 § 2 (1-954). Under the 1956 by-law, the gravel pit was a legal pre-existing non-conforming use. 6. At the introduction of the 1956 by-law, the gravel pit was a small operation covering at most five acres near Wakeby*Road [See Exhibit no. 26]. The current by-law provides for the expansion of a pre-existing non-conforming use by means of a special permit(§ 4-4.5(2)). 7 .58 Plaintiff has not sought a special permit, but instead contends that it can expand the gravel pit as a matter of right to the boundaries of the Property. 7. During the post-World War H building boom, the suburban towns of Massachusetts i gave rise to.a flurry of appellate decisions on the.apptidation of zoning law to gravel pits: Town . of Wayland v. Lee, 331 Mass. 550 (1954) ("Wayland 11'); Town of Wayland v. Lee, 325 Mass. 637 (1950) ("Wayland P'); Town of Billerica v. Quinn, 320 Mass. 687 (1947); Town of Burlington v. Dunn, 318 Mass. 216 (1945). Little has been written directly on point since. In the shadow of these cases, plaintiff argues on factual and legal grounds, respectively that: 1) the gravel pit was originally sited for the entire parcel and therefore can be extended to its boundaries within the legal non-conforming use established thereby, or 2) that the law allows the extension of a gravel pit beyond its original use because of the very nature of the enterprise. '8. 1n regards to its factual argument, plaintiff has failed to establish that as of 1956, the entire parcel had been appropriated to use as a gravel pit. See Town of Billerica, supra. On the contrary, this Court finds that the Giffords intended multiple uses for the parcel. The auto salvage operation was established along the eastem boundary of the lot. By the terms of the variance it was to be screened from view by the surrounding woodland owned by the Giffords. No test borings were done, no clearing of the back land was accomplished; in short, no provisions were evident circa 1956, indeed prior to 19875, suggesting any intent to use a substantial portion of the premises for screening gravel. Plaintiff has not proven the right to expand the pit under the Billerica doctrine. Compare Township of Fairfield v. Likanchuk's, Inc., 644 A.2d 120, 124-25 (N.J. Super. 1994). 9. Turning to plaintiff's legal argument, this court relies on two more recent decisions which have established the protocol for evaluating the permissibility of non- conform'inc, uses. Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973); Bridgewater v. Chuckran, 351 Mass. 20 (1966). "The first test is whether the present use reflects the nature and use prevailing when the zoning by-law took effect.... The second test is whether 8 59 , there is a difference in the quality or character, as well as the degree of the present use... The third test is whether the current use is different in kind in its effect on the neighborhood.." Powers, supra, at 663; see Chuckran, supra, at 23. On appeal to this court, plaintiff has the burden to prove compliance with the Powers/Chuckran three-part test. Derby Refining Co. v. Chelsea, 407 Mass. 703,112 (1990). 10. In spite of this evolving line of precedent, plaintiff argues that the so-called- "diminishing assets" doctrine of other jurisdictions should apply, which creates an exception to the normal Powers/Chuckran-like framework for gravel, earth, or other diminishing land asset removal operations. See iVoore v. Bridgewater Township, 173 A.2d 430, 437 (N.J. Super. 1961). The general rationale behind the doctrine is that in a quarrying or earth removal business, the is an asset which b the very nature of the operation, diminishes over time. The use land itself ry P Y cannot begin over the entire tract of land at once, and is therefore naturally expansive. The jurisdictions which allow the exception note that disallowing expansion would be tantamount to disallowing the use. Our own Supreme Judicial Court noted the harsh effect of standard zoning interpretation as to gravel pits in Wayland 11: "The defendants [Town of Wayland] contend that . [Massachusetts law] limits [the plaintiff] to the excavation of pits or holes that have already been excavated and now contain nothing but air. Such an absurd result was not contemplated by this court...." Supra, at 551. That said however, Massachusetts does not recognize the diminished assets doctrine As accepted by other jurisdictions and argued by the defendants, nor does this court believe the facts presented herein warrant its adoption. Wayland 1, supra; Town of Billerica, supra. Of the states in which the question has arisen. it appears only Massachusetts and Connecticut do not apply the doctrine in some form. See Hansen Brothers Enterprises, Inc. v. Board of Supervisors of Nevada County, 907 P.2d 1324, 1337 (Cal. 1996) (discussion of varied approaches to diminishing assets across jurisdictions); Teuscher v. Zoning Board of,4ppeals, 228 A.2d 518 (Conn. 1967) (Connecticut Supreme Court declines to apply diminishing assets doctrine). At its extreme,the doctrine allows a landowner to use the entire area of a gravel bed (or other mined 9 60 product) without creating an unlawful extension of a nonconforming use, not just the area in which operations were being conducted when the by-law was adopted. See, e.g., Blom v. St. Louis County Planning Commission, 1999 WL 10241 (Minn.App. Jan 12, 1999). Other states look to the bounds of the property owned at the time of the by-law adoption, rather than the bounds of the asset, and therefore extend the exemption of the existing nonconforming use to the property bounds. Hansen Brothers Enterprises, Inc., supra, at 1337. .Still other states have mitigated the effects of the diminishing assets doctrine by allowing expansion of earth removal to a certain distance from the property line, creating a buffer zone for abutters, or allowing expansion only within a set percentage of the land. See Flanagan v. Town of Hollis, 293 A.2d 328, 329 (N.H. 1972). I It is interesting to note, however, that many states which are thought of as "diminishing assets" states still limit the doctrine to cases where it can be shown that the objective intent to mine the entire parcel predated the zoning by-law in question, using reasoning similar to the Supreme Judicial Court's in the Billerica and Wayland 11 cases. See Township of Fairfield, supra, at 329, quoting Moore, supra. "Mn such cases the owner must show that the entire tract was.'dedicated' to the mining activity despite the fact that the activity was limited when it was rendered a nonconforming use. The mere unexpressed intention or hope of the owner to use the entire tract at the time the restrictive ordinance is adopted is not enough. Intent must be objectively manifested...." Id, at 329 (citations omitted).3 Massachusetts precedent also looks to objective manifestations of mining intent, limiting expansion within "the exact boundaries of the area devoted to those [mining pits]"present at the time the restrictive ordinance or by-law was adopted. See Wayland Il, supra, at 5-2. The major difference between Massachusetts and the so-called "diminishing assets"jurisdictions,however, is that our courts are adverse to exempting gravel pit cases from the Powers/Chuckran framework, allowing objective intent to mine to only factor into the first prong of the test, rather 3 It is interesting to note that plaintiff here relies on the :Moore case. 10 61 than allowing the use of a diminishing asset to be determinative. See Wayland 11, supra; Wayland 1; supra; Town of Billerica, supra; Town of Burlington, supra. Our judicial and legislative history support this conclusion. In 1949, the Legislature recognized the special problem of earth removal, and enacted a statute to specifically allow municipalities to regulate such operations. G.L. c. 40 § 21 .(17),.as' added by St.1949,.c. 98.. In 1956, the Supreme Judicial Court foreshadowed its inclination toward the minority view with the dicta: "There is no constitutional right to convert wild land into waste land." Town of Lexington v. Simeone, 334 Mass. 127, 130 (1956). Since then, our courts have adhered to the notion that "whatever harshness might result from strict regulation of changes in nonconforming uses is justified by policy considerations which generally favor their eventual elimination." Blasco v. Board of Appeals of Winchendon, 31 Mass. App. Ct. 32, 39 (1991). See also Strazzulla v. Building Inspector of Wellesley, 357 Mass. 694, 697 (1970); Dowling v. Board of Health of Chilmark, 28 Mass. App. Ct. 547, 551 (1990). 11. - Therefore, applying the requisite test in light of the above discussion, this court concludes that plaintiff has not proven a permissible expansion of its nonconforming use on the Property. This court does agree with plaintiff that the nature and purpose of the use, i.e. commercial:gravel=r-emo�a1—r-e- ins-the-same-as-pr-e-1956-oper-ations-a Compare First Crestwood Corp. v. Building Inspector of Middleton, 3 Mass. App. Ct. 234, 236 (1975). Plaintiff.fails,, however,,to,provethatzthe qual ty,_character_and-degree-remain-unchan;ed,. As noted above., plaintiff failed to show any objective intent to use the entire property for gravel mining. The area devoted-to-the-gr-a_v_el_pits-at-the adootion_o-the=1-95_6=by=law-was=kimited_to=the--approximates-y five--acres--of cleared=area=in_the-southernmost port on_o:f_th-e.pr-oper-ty:(See E--Yju =no—?5% Plainti---s,current_day operation-far-e-xce-eds-the-use-as-i_t-ex-isted-in_1.95-6., Moreover, and'probably most detrimental to plaintiffs cause, there has been no showing that the current use is not"different in kind in its effect on the neighborhood." Chuck,-an, supra, at 712. To the contrary, the Town has shown that the surrounding property owners have bome 11 62 the brunt of plaintiffs expanded operations, in the form of increased noise, increased particulate in the air, and possible structural consequences. For these reasons, this court concludes that plaintiff cannot meet its burden under the Powers/Chuckran test. 12. Plaintiff makes two arguments why, even though an impermissible expansion may have occurred, the Board's decision should be overturned.. First,plaintiff argues that the building commissioner's letter of March 13, 1996, which states the opinion that the gravel pit was currently a legal non-conforming use, should be binding on the Town under some theory of . equity or estoppel. It is true that when the Town needed gravel in 1996 for the Town Dump, the building commissioner was compliant. While the court does not wish to encourage such duplicity, whether intentional or neglectful, the building commissioner's letter of opinion cannot act to bar the Town from now seeking to enforce the by-law. Under Massachusetts law, the failure to implement a by-law works no estoppel. Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 162 (1977); Seekonk v. Anthony, 339 Mass. 49, 55 (1959). If a use or structure "[is] a violation of a ... zoning by-law, no permit [can] legalize it." Id, quoting Inspector of Buildings of.Burlington v. :tTurphy, 320 Mass:207, 210 (1947). The safety and welfare benefits conferred by zoning by-laws enure to the public, and "[that] right of the public to have the zoning by-law properly enforced cannot be forfeited by the action of its officers. Cullen v. Building Inspector off. Attleborough, 353 Mass. 671, 675 (1968). Plaintiff's first argument must therefore fail. 13. Plaintiffs second argument is that if the zoning by-law excludes the expanded gravel pit operation, then the by-law effects a regulatory taking on the Property. However, adoption of zoning by-laws and enabling statutes which are not arbitrary and do not unduly restrict the use of private property is a permissible use of the police power and does not violate the takings clause of the Fifth Amendment of the United States Constitution or Article 60.of the Amendments to the Massachusetts Constitution. See Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978); Nectow v. City of Cambridge, 277 U.S. 183 (1928);.Kilgour v. 12 63. Grotto, 224 Mass. 78 (1910). Zoning by-laws have historically been used to stabilize use of property and protect areas from deleterious uses. Enos v. City of Brockton, 354 Mass. 278, 280- 81 (1968). Specific earth removal by-laws have been held to further the same purpose. Glacier Sand&Stone Co. v. Board of Appeals of Westwood, 362 Mass..239, 242 (1972). Further, this court notes that plaintiff is left with many alternative uses for the property, in fact the property is historically multi-use. No taking by regulation has occurred in the present case. See Daddario v. Cape Cod Commission, 425 Mass. 411 (1997); also see generally Town of Lexington, supra, at 130. 14. Finally, the Board contends that by stretching the expansion of the pre-existing use beyond reason, plaintiff has lost not only the expansion, but the use itself. On this point the Town cites, Ka-Hur Enterprises v. Zoning Bd. of Provincetown, 424 Mass. 404(1997). The Town's contention does not flow from the case cited. KaHur deals with the issue of abandonment and discontinuation of a non-conforming use. Abandonment is generally a question of fact. Paul v. Selectmen of Scituate, 301 Mass. 365, 370 (1938). Mere non-use of property in of itself does not constitute an abandonment of use, and additional facts must be present before such a finding. Derby, supra, at 709. No abandonment has been shown in the present case. Gravel mining, albeit sporadic, has been continuous on the Property. By devoting other portions of the Property to different uses, the Giffords did not discontinue the gravel pit, they simply limited its range. Ka-Hur Enterprises, supra.. CONCLUSION For the=above-reasons,--plaintiff is-left with_the=rightto-m_ine_that_portion-of-the=site appropriated_to-gravel-mining-as-ofa95-6�That-area-is-best-descr-ibed-as-the-southernmost five acres of the site shown as cleared land on Exhibit no. 25. To the extent this decree leaves plaintiff mining air, see Wayland 11, such a result is a reflection of the realities of gravel mining, . coupled with the passage of two score years, and does not indicate hollow justice. 13 64 . ORDER It is-therefore ORDERED'that Judgment enter AFFIRMING the decision of the Barnstable Zoning Board of Appeals sustaining the Cease and Desist Order of the building commissioner dated October 22, 1997, in all respects except as to the removal of gravel on that portion of the Property appropriated to that use in 1956.. G Nickerson J ice of the Superior Court DATED: June 25, 1999 14 Clerk 65 ' ACTS AN D RESOLVES PASSEU BY THE IN THE YEAR 1920 ) TOOESBER WIT8 THE CONSTITliTION, THE REARRANGEMENT OF THE CONSTITLTION, TABLES SHOINTING CHANGES • ' IN THE STATUES, ETC., ETC. PUBUSBED BT THB SECRETARY OF THE COMMONWEALTH. i a r i BOSTON: WRIGHT d POTTER PRI\TI\G CO.,.STATE PAINTERS, 32 DER\'E STREET. 19,20. 66 ACTS, 1920. — CHAPS. 600, 601. 665 corporation is aggrieved by§ucli determination, it may, upon e pro court. petition within six months thereafter, have the damages etc. assessed by a jury in the superior court in the-same manner as for takings for highway purposes. If, upon the trial, the damages are increased, the petitioner shall recover costs, otherwise it shall pay costs, which shall be assessed as in other civil cases. SECTION 18. This act shall not apply to any territory iloswn Ele- served by the Boston Elevated Railway Company. vawd RailwayCompany ox- Appraved J.itne 4, 1920. empt from act. AN ACT TO PROVIDE FOR LEVYING AN ADDITIONAL TAX ON Chap.600 THE INCOME OF CERTAIN CORPORATIONS. Whereas, The deferred operation of this act would tend to Emergency defeat its purpose, therefore it is hereby declared to be an preamble. emergency law, necessary for the immediate preservation of the public convenience. Be it enacted, etc., as follows: Chapter five hundred.and fifty of the acts of- nineteen loco,550.16, hundred and twenty is hereby amended by Striking.Out sec- "mended. tion sir.and substituting the folloN%ing:—Section w G. The Rate of tnx on income of taxes imposed under this act sliall be levied on� each of the ccrtai„cor- corporations subject thereto at the rate of three quarters of pe'aL1O1s. one per cent of their net income as herein defined and ap- portioned to this commonwealth, and shall be retained for the general purposes of the commonwealth. Approted June 4, 1920. AN ACT TO AUTHORIZE CITIES AND TOWNS'TO LIMIT BUILD- Chap.601 INGS ACCORDING TO THEIR USE .OR CONSTRUCTION TO SPECIFIED DISTRICTS. Be it enacted, etc., as follolcs: SECTION 1. A city or town may by ordinance or by-law cities and towns mny limit restrict buildings to be used for particular industries, trades, buildings ac- manufacturin or commercial purposes to specified. arts of C 9i"g to g PIP P P their use or the city or town, or may exclude them from specified parts to aN;find" .Of the city or town, or may provide that such buildings, if districts,etc. situated in certain parts of the city or town, shall be subject to special regulations as to their construction or use. A city or town may also .by ordinance or by-law provide that . certain kinds-of dwelling houses and tenement houses s11all 67 666 ACTS, 1920. —.CHAP. 601: be.restricted to specified parts of the city or town, or shall ' be excluded from specified parts of the city or town, or that dwelling houses or tenement houses situated in specified parts of the city or town shall conform to certain regulations in respect to their construction or use which do not apply to such buildings in other parts of the city or town. For the above purpose the city or town may be divided into districts or zones, and the construction and use of buildings in each district or zone may be regulated as above provided. Municipal SECTION 2. The provisions. of this act shall be carried gtanning ° assisted out in such manner as U`ill best promote the health, safety, in matters or .convenience and welfare of the inhabitants, will lessen the municipal improvomont, danger from fire, will tend to improve and beautify the city etc. or town, will harmonize Nvith its natural development, and will assist the carrying out of any schemes for municipal im- provement put forth by any municipal planning board or board of survey or other like authority. Due regard shall be* paid to.the characteristics of the different parts of the city or town, and the ordinances or by-laws established hereunder in any city or town shall be the same for zones, districts or streets having substantially the same character. Restrictions SECTtox 3. No ordinance shall be established hereunder. upon ordi- nunces,etc. in any city until after a public hearing thereon has been held, ..notice of which shall be published, at least thirty da-s before the hearing, in a newspaper published in the city concerned, or in the county if no newspaper is published in the city. The hearing shall be given by the city- council or by such officer, board, commission or committee as may be desig- nated or appointed for the purpose by the city- council. No by-law shall be established hereunder by any town.except at an annual or special town meeting.duly called for the pur- pose. ofpermits Fg SECTioN 4. It shall be the duty of the superintendent of of permits tors -. coonstruction, buildings, or the officer or board having supervision of the et construction of buildings, or the power of enforcing the mu- nicipal building laws, and if in any town there is no such officer or board, then it shall be the duty of the.sclectmen,'to Nvztlrliold a permit for the construction or alteration of any building if the building as constructed or altered would be in violation of any ordinance or .by--law established here-: under;. and it shall be the duty of municipal officers to re- fuse any permit or license for the use of a building.which use would-be in violation of any ordinance or by-law estab- lished hereunder. 68 AcTs; 1920. CHAP. 601. 667 SECTION 5. An person who is aggrieved b the refusal Appeals when Y P 0 Y aggrieved by of a permit u1 r the provisions of the preceding section ��ai of per- may appeal to a municipal officer or board to which a right of appeal lies from decisions under the building laws of the city or town, .and if there is no such officer or board, then the appeal shall lie to.the city council of the city onto the selectmen of the town, or to such officer, board, com- mission or committee as shall be designated or appointed by the city council ctf the city or by the selectmen of the town to act as a board of appeals hereunder. SECTION 6. The superior court shall,have jurisdiction to pupe"ioercourt enforce the provisions of this act, and may restrain by in- jurisdiction. junction any violation thereof. SECTION 7. This act shall not apply to existing struc- Act not to apply to cer- tures nor to the existing use of any building, but it shall tain structufes. apply to any alteration of a building to provide for its use ecc. for a purpose, or in a manner, substantially different from the use to which it was put before the alteration. SECTION 8. Tllis act shall not apply to any existing or Rights of proposed building used or to be used by a public service cor- corporatio potation if.upon a petition of the corporation, the depart- ment of public utilities shall, after a public hearing, decide that the present or proposed situation of the building in question is reasonably necessary for the convenience or wel- . fare of the public. SECTION 9. No ordinance or by-law established here- nepeat of under shall be repealed or modified except after reasonable gulated'etc., notice of the proposed repeal or modification, and an oppor-' tunity to the objectors to be heard.thereon. If any owner of real estate in a city which would be affected by the pro- posed repeal or modification objects thereto, it shall not be repealed or modified except-by a unanimous vote of all the members of the city council; and in no case shall an ordi- nance or by-law established under the provisions of this act be repealed or modified except by a two thirds vote of all the members of.the city council, or by a two thirds vote of the voters of a town voting thereon at an annual or special town meeting duly called for the purpose. Approved June 4, 1920. 69 ACT-S . .. - AND - RESOLVES PASSED BY THE IN THE YEAR 1925 TOOETHER WITH RETURNS. OF VOTES UPON CONSTITUTIONAL AMENDMENTS AND QUESTIONS SUBMITTED TO VOTERS, TABLES SHOWING CHANGES IN THE STATUTES, ETC. PUBLISHED BY THE SECRETARY OF THE COMMONWEALTH BOSTON WRIGHT & POTTER PRINTING COMPANY 1925 70 92 ACTS, 1925. — CHAPS. 113, 114. or injures such plant or any part thereof except in so far as is reasonably necessary in procuring the flower therefrom, within the limits of any state highway or any other public way or place, or upon the land of another person without Penalties. written authority from him, shall be punished by a fine of not more than fifty dollars; but if a person does any of the afore- 'said acts while in disguise or secretly in the night time he shall be.punished by a fine of not more than one hundred.dollars. Approved March 17, 1925. I Chap.113 A;7 ACT AUTHORIZING THE TOWN OF DALTON TO PENSION LIAR- GARET E. LAWLER. Be it enacted, etc., as follows: Town of The town of Dalton for the purpose of promoting the pub- Dalton may. P P P P, ension lic good, may pay to Margaret E. Lawler, who served faith- giap .r et E' fully and efficiently in the public schools of said town for twenty-two years prior to nineteen hundred and eight, when she retired from active service by reason of permanent physical infirmity contracted in said service, an annual pension of two hundred and fifty dollars in equal monthly instalments, to be paid out of the amount annually appropriated by said town for the support of the public schools therein. Approved March 17, 1925. Chap.114 AN ACT FIXING THE TEMMS OF OFFICE OF MEMBERS OF WARD COMMITTEES UPON A REDIVISION OF A CITY INTO WARDS. Be it enacted, etc., as follows: G.L.52,;2, SECTION I. Section two of chapter fifty-6vo of the General amended. Laws is hereby amended by adding at the end thereof the following:—, except as provided in section seven,—so as Ward and to read as follows:—Section 2. Each political party shall, town com- mitteess,elec- in every ward and town, elect at the primaries before each Lion,terms, etc. biennial state election a committee to be called a ward or town committee, whose members shall hold office for two years from January first follonzng their election and until their succes- sors shall have organized, except as provided in section seven.G. j amended 4 7, SECTION 2. Said chapter fifty-two is hereby further amended by striking out section seven and inserting in place thereof Ward com- the following: Section 7. The terms of office of the members mittees,terms g'— of office of of the ward committees of a city elected at the biennial state members upon redivivion of a primary P recen next dig 'a redivision thereof into wards shall e` city to terminate on the twentieth day after the holding of the next wards. following biennial state primary; and the terms of office of the members of the ward committees of such city elected at said next following biennial state primary shall commence on said twentieth day, or as soon thereafter as the several ward committees shall organize, which shall be within ten days after said twentieth day, and shall continue for two years from'January first following their election and until their suc- cessors shall have organized. j t 71 ' ACTS, 1925. — CHAPS. 115, 116. 93 SECTIOV 3. This act shall apply .to all members of ward nv cticabititr committees of any city, redivided into wards in the year nine- teen hundred and twenty-four, who were elected at the biennial state primary in said year. Approved March 17, 1925. AN ACT VALIDATING THE ELECTION OF THE WATER CO\I\IIS- Chap.115 SIONERS OF THE TOWN OF BRIDGEWATER. Be it enacted, etc., as follows: The election of William H: Bassett, Joseph 11'. Keith and Election of water commis- H. Loring Jenkins as water commissioners of the town of sioners of Bridgewater by the voters of said town at its annual meet- to n of- ing in the current year is hereby confirmed and made valid, if validated• and in so far as said election was invalid by reason of the fact that the warrant calling said annual town meeting did not include a provision calling for the election of water commis- sioners; and notwithstanding said fact the said persons shall Powers wers and. have all the powers and duties imposed upon the water com- - missioners of said town by chapter fifteen of the acts of nine- teen hundred and twenty-five and by general law. Approved March 17, 1925. AN ACT RELATIVE TO THE POWER OF CITIES AND TOWNS TO Cha .116 LIMIT THE USE OF STRUCTURES AND PREMISES IN SPECIFIED p DISTRICTS. Be it enacted, etc., as follows: SECTION 1. Section twenty-five of chapter forty of the G.L.40 123, General Laws is hereby amended by inserting after the word amended. buildings" in the second line the words:—, structures and premises,—by striking out, in said line, the word "or" and inserting in place thereof a comma,—by inserting after the word "commercial" in the third line the words:—or other,— by inserting after the Word "from" in the fourth line the words:—or prohibit any of such uses in,—by inserting after 1 the word "buildings" in the fifth line the words:=,struc- tures or premises,—and by inserting after the word "build- ings" in the fifteenth line the words:— and structures and } the use of premises,—so as to read as follows:—Section 25. Cities estowns m y A city or town may by ordinance or by-law restrict buildings, limit build- 1 tructures structures and premises to be used for articular industries and remises p � and premises i trades, manufacturing, commercial or other purposes to speci- Cbheirr�usegor fied parts of the city or town, or may exclude them from or construction prohibit an of such uses in specified arts of the cit• or town di specified d � districts. r may provide that such bildings,structures or premises, if situated in certain parts of the city or town, shall be subject to special regulations as to their construction or use. A city or town may also by ordinance or by-law provide that certain kinds of dwelling houses and tenement houses shall be re- stricted to specified parts of the city or town, or shall be ex- cluded from specified parts of the city or town, or that dwell- ing houses or tenement houses situated in specified parts of the city or.town shall conform to certain regulations in respect ram. .' 72 94. AcTs, 1925. — CHAP. 116. to their construction or use which do not apply to such build- Division into ings in other parts of the city or town. For the above pur- discricts or zones. pose the city or town may be divided into districts or zones, and the construction and use of buildings and structures and the use of premises in each district or zone may be regtflated Promotion of as above provided. .The. provisions of this section shall .be beatch,safety, carried•out in such m,nner as will best promote the health, convenience and welfare of. safety, convenience and welfare of the inhabitants, will lessen inhabitants,etc. the clanger from fire, will tend to improve and beautify the city or town, will harmonize with its natural development, Co-operation and will assist the carrying out of any scheme for municipal with fanning improvement put forth by any municipal planning board or boards,etc. board of survey or other like authority. Due regard shall be paid to the characteristics of the different parts of the city or town, and the ordinances or by-laws established hereunder -in any city or town shall be the same for zones, districts or streets having suhstantially the same character.. G.L.40,127, SECTION 2. Section t.venty-seven of said chapter forty is amended• hereby amended by inserting after the word " building" wherever it occurs it the fifth line the words:—or structure,and by -inserting after the word " building" in the eighth line the words:—,structure or premises,—so as to read as fol- Withholding lows:—Scction 27. The superintendent of buildings, or the of permits for construction or officer or board having supervision of the construction of build- alteration of im, or the power of enforcing the municipal building laws, b or e• structures. or if in any town there is no such officer or board, the select- men, shall withhold a permit for the construction or altera- tion of any building or structure if the building or structure as constructed or altered would be in violation of any ordi= Hance or by-law enacted under section twenty-five; and munic- ipal officers shall refuse any permit or license for the use of a building, structure or Premises which use would be in violation Appeals• of any ordinance or by-law enacted under said section. Any person aggrieved by the refusal of a permit under this section may appeal to the municipal officer or board to which a right of appeal lies from decisions under the building laws of the city or town, and if there is no such officer or board, then the ap- peal shall lie to the city council or to the selectmen, or to such officer, board, commission or committee as shall be designated ' or appointed by the city council or by the selectmen to act as a board of appeals lereunder. G.L.40,1 20, SECTIOY 3. Section twenty-nine of said chapter forty is emended• hereby amended by inserting after the word "existing` the first time it occurs in the second line the words:—buildings or,—by inserting after the word "building" the first time it occurs in the third line the words:—,structure or prem- ises,—by inserting after the word " building" the second time it occurs in the third line the words:—or stricture,and by inserting after the word " building" .in the fifth and tenth lines in each instance the words:—,structure or prem- Exemption of ices,—so as to read as follows:—Section 29. An ordinance existing build- ings or strut- or by-law enacted under section twenty-five shall not apply to sores,etc. existing buildings or structures nor to the existing use of any 73 ACTS, 1925. —CHAPS. 117, 118. 95 building, structure or premises, but it shall apply to any alter- ation of a building or structure to provic!e for its use for a purpose, or in a manner, substantially different from the use to which it was put before alteration. A huilding, structure Exemption of buildings, or premises used Or be used by a-public service corporation structures, may be exempted front the operation of an ordinance or by- etc.,of public service cor- law enacted under section twenty-five if, upon a petition of poratiooa the corporation, the department of public utilities shall, after It,etc. a public hearing, decide that the present or proposed situation of the building, structure or premises in question is reasonably necessary for the convenience or welfare of the public. Approred March 17, 1925. AN ACT ESTABLISIIING A STANDARD Ol•' MILR FAT FOR BUTTER. Chap.117 Be it enacted, etc., as follvics: �► Section one of chapter ninety-four of. the General Laws is G.L.94 11. hereby amended by inserting after the word "platter" in amended. the thirty-second line the following:—Butter shall contain not less than eighty per cent by wei;llt of milk fat. Butter containing less than eighty per cent by weight of milk fat shall be deemed to be adulterated within the meaning of sections one hundred and eighty-six to one hundred and ninety-five, inclusive,—so that the paragraph contained in lines thirty to thirty-two, inclusive, will read as follows:—"Butter" .'cheese •and and "cheese", products usually known by these names which defined. are manufactured exclusively from milk or cream with salt and rennet and with or without coloring matter. Butter Standard of shall contain not less than.eighty per. cent by weight of milk for buii r. . fat. ,Butter containing less than eighty per cent by weight i of milk fat shall be deemed to be adulterated within the mean- ing of sections one hundred and eighty-six to one Hundred and ninety-five, inclusive. Approred March IS, 192j. AN ACT RELATIVE TO RECOUNTS Us CASES OF OFFICES TO BE Cha .118 FILLED, OR QUESTIONS TO BE VOTED UPON, BY ALL THE VOTERS p OF THE COMMONWEALTH. lBe it enacted, etc., as follows: SECTION 1. Chapter fifty-four of the General Laws is hereby G.L.sa,1135. amended by striking out section one hundred and thirty-five amended. and inserting in, place thereof the following :—Section 13.S.,veco in clef, If, on or before five o'clock in the afternoon on the third day tioas,filing of following an election in a ward of a city or in a town, ten or is�� more voters of such ward or town, except Boston,and in Boston fifty or more voters of a ward, shall sign in person, adding thereto their respective residences on the preceding April first, and cause to. be filed with the, city or town clerk: a statement _ sworn to by one of the subscribers that they have reason to believe and do believe that the records, or copies of records, made by the election officers of certain precincts in such ward or town, or in case of a town not voting-'by precincts, by the election officers of such town, are erroneous, specifying wherein 74 MASSACHUSETTS GENERAL LAWS ANNOTATED PART I.. ADMINISTRATION OF THE GOVERNMENT TITLE VI1. CITIES, TOWNS AND DISTRICTS CHAPTER 40A. ZONING § 6. Existing structures, uses, or permits; certain subdivision plans; application . of chapter Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially, different manner or to a substantially greater extent except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be j substantially more detrimental than the existing nonconforming use to the . neighborhood. This section shall not apply to establishments which display live nudity for their patrons, as defined in section nine A, adult bookstores, adult motion picture theaters, adult paraphernalia shops, or adult video stores subject to the provisions of section nine A. A zoning ordinance or by-law shall provide that construction or operations under a building or special permit shall conform to any subsequent amendment of the ordinance or by-law unless the use or construction is commenced within a period of not more than six months after the issuance of the permit and in cases involving construction, unless such construction is continued through to completion as continuously and expeditiously as is reasonable. A zoning ordinance or by-law may define and regulate nonconforming uses and structures abandoned or not used fora period of two years or more. Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for,single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, 'conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage. Any increase in area, 75 frontage, width, yard or depth requirement of a zoning ordinance or by-law shall not apply for a period of five years from its effective date or for five years after January first, nineteen hundred and seventy-six, whichever is later, to a lot for single and two family residential use, provided the plan for such lot was recorded or endorsed and such lot was held in common ownership with any adjoining land and conformed :to the existing zoning requirements as of January first, nineteen- hundred and seventy-six, and had less area, frontage, width, yard or depth requirements than the newly effective zoning requirements but contained at least seven thousand five hundred square feet of area and seventy-five feet of frontage, and provided that said five year period does not commence prior to January first, nineteen hundred and seventy-six, and provided further that the provisions of this sentence shall not apply to more than three of such adjoining lots held in common ownership. The provisions of this paragraph shall not be construed to prohibit a lot being built upon, if at the time of the building, building upon such lot is not prohibited by the zoning ordinances or by-laws in effect in a city or town. If a definitive plan, or a preliminary plan followed within seven months by a definitive plan, is submitted to a planning board for approval under the subdivision control law, and written notice of such submission has been given to the city or town clerk before the effective date of ordinance or by-law, the land shown on such plan shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of the first such submission while such plan.or plans are being processed under the subdivision control law, and, if such definitive plan or an amendment thereof is finally approved, for eight years from the date of the endorsement of such approval, except in the case where such plan was submitted or submitted and approved before January first, nineteen hundred and seventy-six, for seven years from the date of the endorsement of such approval. Whether such period- is eight years or seven years, it shall be extended by a period equal to the time which a city or town imposes or has imposed upon it by a state, a federal agency or a court, a moratorium on construction, the issuance of permits or utility connections. When a plan referred to in section eighty-one P of chapter forty-one has been submitted to a planning board and written notice of such submission has been given to the city or town clerk, the use of the land shown on such plan shall be governed by applicable provisions of the zoning ordinance or by-law in effect at the time of the submission of such plan while such plan is being processed under the subdivision control law including the time required.to pursue or await the determination of an appeal referred to in said section, and for a period of three years from the date of endorsement by the planning board that approval under the subdivision control law is not required, or words of similar import. Disapproval of a plan shall not serve to .terminate any rights which shall have accrued under the provisions of this section, provided an appeal from the decision disapproving said plan is made under applicable provisions of the 76 subdivision control law. Such appeal shall stay, pending an order or decree of a court of final jurisdiction, the applicability to land shown on said plan of the provisions of any zoning ordinance or by-law which became effective after the date of submission of the plan first submitted. In-the event that any lot shown on a plan. endorsed by the planning board is the subject matter of any appeal or any Litigation, the exemptive provisions of this section shall be extended for a period equal to that from the date of filing of said appeal or the commencement of litigation, whichever is earlier, to the date of final disposition thereof, provided final adjudication is in favor of the owner of said lot. The record owner of the land shall have the right, at any time, by an instrument duly recorded in the registry of deeds for the district in which the land lies, to waive the provisions of this section, in which case the ordinance or by-law then or thereafter in effect shall apply. The submission of an amended plan or of a further subdivision of all or part of the land shall not constitute such a waiver, nor shall it have the effect of further extending the applicability of the ordinance or by-law that was extended by the original submission, but, if accompanied by the waiver described above, shall have the effect of extending, but only to extent aforesaid, the ordinance or by-law made then applicable by such waiver. 77 MASSACHUSETTS GENERAL.LAWS ANNOTATED PART'I. ADMINISTRATION OF THE GOVERNMENT TITLE VII. CITIES,TOWNS AND DISTRICTS CHAPTER 40A. ZONING § 17. Judicial review Any person aggrieved by a decision of the board of. appeals or any special permit granting authority or by the failure of the board of appeals to take final action concerning any appeal, application or petition within the required time or by the failure of any special permit granting authority to take final action concerning any application for a special permit within the required time, whether or not previously a party to the proceeding, or any municipal officer or board may appeal to the land court department, the superior court department in which the land concerned is situated or, if the land is situated in Hampden county; either to said superior court department or to the division of the housing court department for said county, or if the land is situated in a county, region or area served.by a division of the housing court department either to said superior court department or to the division of said housing court department for said county, region or area, or to the division of the district court department within whose jurisdiction the land is situated except in Hampden county, by bringing an'action within twenty days after the decision has been filed in the office of the city or town clerk. If said appeal is made to said division of the district court department, any party shall have the right to file a claim for trial of said appeal in the superior court department within twenty-five days after service on the appeal is completed, subject to such rules as the supreme judicial court may prescribe. Notice of the action with a copy of the complaint shall be given to such city or town clerk so as to be received within such twenty days. The complaint shall allege that the decision exceeds the authority of the board or authority, and any facts pertinent to the issue, and shall contain a prayer that the decision be annulled. There shall be attached to the complaint a copy of the decision appealed from, bearing the date of filing thereof, certified by the city or town clerk with whom'the decision was filed. If the complaint is filed by someone other than the original applicant, appellant or petitioner, such original applicant, appellant, or petitioner and all members of the board of appeals or special permit granting authority shall be named as parties defendant with their addresses. To avoid delay in the proceedings, instead of the usual service of process, the plaintiff shall within fourteen days after the filing of the complaint, send written notice thereof, with a copy of the complaint, by delivery or certified mail to all defendants, including the members of the board of appeals or special permit granting authority and shall within 7s twenty-one days after the entry of the complaint file with the clerk of the court an affidavit that such notice has been given. If no such affidavit is filed within such time the complaint shall be dismissed. No answer shall be required but an answer may be filed and notice of such filing with a copy of the answer and an affidavit of.such notice given to all parties as provided above within.seven. days after the filing of the answer. Other persons may permitted to intervene, upon motion. The clerk of the court shall give notice of the hearing as in other cases without jury, to all parties whether or not they have appeared. The court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require. The foregoing remedy shall be exclusive, notwithstanding any defect of procedure or of notice other than notice by publication, mailing or posting as required by this chapter, and the validity of any action shall not be questioned for matters relating to defects in procedure or of notice in any other proceedings except with respect to such publication, mailing or posting and then only by a proceeding commenced within ninety days after the decision has been filed in the office of the city or town clerk, but the parties shall have all rights of appeal and exception as in other equity cases. A city or town may provide any officer or board of such city or town with independent legal counsel for appealing, as provided in this section, a decision of a board of appeals or special permit granting authority and for taking such other subsequent action as parties are authorized to take. Costs shall not be allowed against the board or special permit granting authority unless it shall appear to the court that the board or special permit granting authority in making the decision appealed from acted with gross negligence, in bad faith or with malice. Costs shall not be allowed against the party appealing from the decision of the board or special permit granting authority unless it shall appear to the court that said appellant or appellants acted in bad faith or with malice in making the appeal to the court. The court shall require nonmunicipal plaintiffs to post a surety or cash bond in a sum of not less than two thousand nor more than fifteen thousand dollars to secure the payment of such costs in appeals of decisions approving subdivision plans. - All issues in any proceeding under this section shall have precedence over all other civil actions and proceedings. No. A.C. 2000-P-0701 GIFFORD BROTHERS SAND AND GRAVEL, INC., PLAINTIFF-APPELLANT, U. ZONING BOARD OF APPEALS, TOWN OF BARNSTABLE, DEFENDANTS-APPELLEES. ON APPEAL FROM A JUDGMENT OF THE BARNSTABLE SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT FOR THE COMMONWEALTH OF MASSACHUSETTS BRIEF OF DEFENDANTS- APPELLEES-CROSS-APPELLANTS. BARNSTABLE COUNTY Blanchard Press,Inc. 617-426-6690 COMMONWEALTH OF MASSACHUSEFTS it APPEALS COURT CLERK'S OFFICE 1500 NEW COURT HOUSE B OSTON, M ASSACHUSETTS 02108 (617) 725-8106 October 28 , 2002 Ruth J. Weil, Esquire - Town of Barnstable 367 Main Street, New Town Hall C1 3 0 %00 Hyannis, MA 02601 RE : No. 2000-P-0701 GIFFORD BROTHERS SAND & GRAVEL VS. BARNSTABLE ZONING BD. OF APPEALS TOWN OF NOTICE OF DOCKET ENTRY Please take note that on October 2'8 , 2002, the following entry was made on the docket of the above-referenced case : Decision: Rule 1 :28 (GS KN DO) . The judgment of the Superior Court is modified by striking the clause in paragraph 1 that begins with "except" and ends with 111956 . " As so modified, the judgment is affirmed. " *Notice . (See image on file . ) Very truly yours, The Clerk' s Office Dated: October 28 , 2002 To : Gregory M . Downs.. Esquire James W. Stathopoulos, Esquire Ruth J. Weil, Esquire I r J Commonwealth of Massachusetts Appeals Court for the Commonwealth At Boston, In the case no. 00-P-701 GIFFORD BROTHERS SAND AND GRAVEL, INC. VS. 5 ZONING BOARD OF APPEALS OF BARNSTABLE. Pending in the Superior Court for the County of Barnstable Ordered, that the following entry be made in the docket : The judgment of the Superior Court is modified by striking the clause in paragraph 1. that begins with "except" and ends with 11195G . " As so modified, the judgment is affirmed. r ?TE. By the Court, The original of the within rescript will issue in due course,pursuant 4o iA.R.A.F.23 -- Aoncr.-,13 COURT -� , Clerk Date October 28, 2001 A COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 00-P-701 GIFFORD BROTHERS SAND AND GRAVEL, INC. VS . ZONING BOARD OF APPEALS OF BARNSTABLE. MEMORANDUM AND ORDER PURSUANT TO RULE 1 : 28 Gifford Brothers Sand and Gravel Inc . (Gifford) appeals from a judgment of the .Barnstable Superior Court holding that Gifford must limit its excavation and fill-processing use of the property on Wakeby Road to the five acre area in such use as of 1956 . The zoning board of appeals of Barnstable (board) has filed a cross appeal arguing that this activity wis .not a legal preexisting nonconforming use under the zoning by-law enacted in 1929, and therefore no such continued activity is proper. We conclude that the Superior Court erred in applying the 1956 zoning by-law rather than the applicable 1929 zoning by-law. Background. Gifford is the current owner of the property at issue, an `irregularly shaped 16 . 6 acre lot located at 810 Wakeby Road in Marstons Mills, a village of the town of Barnstable. The town enacted its first comprehensive zoning by-law in 1929, at which time the property was zoned for residential use. The second zoning by-law at issue, enacted in 1956, added a business but the Gifford property continued to be zoned only for district P P residential purposes . U In spite of being zoned for only residential use, the property has been used for various purposes over the years . When Lorenzo Gifford acquired the property in 1945, the property was woodland, neither in commercial nor residential use . 'By 1947,. the Giffords had begun commercially removing sand and gravel from the property. Until 1995, the' sand and gravel operation occupied only a small portion of the property, at most five acres, and the Gifford' s primary business on the property was the repair and salvage of automobiles, for which a use variance was secured from the board in 1964 . 1 (A. 405, 426, 658) . In 1996, a contractor for the town of Barnstable contracted with Gifford to use fill from the Wakeby Road property to cap the Barnstable landfill . Before Gifford began harvesting this gravel, the Barnstable building commissioner advised the town. council that the gravel operation was a lawful preexisting non- conforming use.2 Thereafter, mining and excavation activities were increased and the buffer of trees between the excavation and the boundary of the property was stripped away, exposing the 1 In addition to the metal salvage operation, portions of the property along the western border were frequently leased to local businesses for the storage of heavy equipment, tools, trailer bodies, and boats . 2 "Please be advised that the Gifford (g] ravel pit on Wakeby Road is a pre-existing non-conforming use, and as such is lawful from a zoning perspective. In arriving at this conclusion, we talked to several people with early roots in the area; and interviewed the owner. No information was received to the contrary. " (A. 674) . 2 1 gravel pit to the residential neighborhood. Once the contract to provide the fill was completed, Gifford* began' to use the property in connection with a landscaping and loam processing business . The premises quickly became a repository for brush stumps, concrete and demolition debris . After receiving several complaints about the constant noise, dust and fumes resulting from the various operations conducted on the property, the Barnstable building commissioner issued a cease and desist order directing Gifford to stop using the property as a gravel pit and to stop processing fill and depositing fill, brush and clippings . Gifford appealed the order to the board, which held appropriate hearings and then upheld the building commissioner. Thereafter, Gifford sought relief from the order in Barnstable Superior Court . The Superior Court concluded that the 1956 zoning by-law was applicable rather than- the 1929 by-law, which it found to run ,afoul of .the zoning enabling act of that era as illegal spot zoning, and so held that Gifford has the right to mine that portion of the site -appropriated to gravel mining as of 1956, the southernmost five acres of the site. 3 The zoning enabling act applicable at that time was inserted by St . 1920, c . 601, codified as G. L. c. 40, §§ 25-30B, since repealed by St . 1954 , c . 368, § 1, and now appearing in Chapter' 40A; see also Opinion of the Justices to the House of Representatives, 234 Mass . 597 (1920) . 3 Both parties have appealed this order.' The board argues that the 1929 zoning .by-law. is not spot zoning and was : .the correct by-law to apply. Under this. theory, excavation and mining activities on the property were never legal because no zoning relief for such use was ever issued, nor were such activities taking place on the, property in 1929 when the by-law took effect which would have given them status to continue as a legal preexisting nonconforming use. Spot . zoning. Spot zoning occurs where a local legislative body grants a zoning classification to a piece of land that singles out that particular parcel "for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot, " Rando v. North Attleborough, 44 Mass .. App. Ct . 603 , 606 (1998) , quoting from Whittemore v. Building Inspector of Falmouth, 313 Mass . 248, 249 (1943) , or when the zoning classification, without a rational planning objective, makes the parcel subject to more restrictive regulation than that of neighboring property. National Amusements, inc. v. Boston, 29 Mass . App. Ct . 305, 312 (1990) . "Such zoning constitutes a denial of equal protection under the law guaranteed by the State ' The board has also appealed other rulings which .are dependant upon the application of the 1956 zoning by-law. As we conclude that the 1929 by-law was applicable, we do not reach these arguments . 4 j and Federal Constitutions, and violates the uniformity requirement �bf c . 40A, § 4 . " .Rando, supra at 606 (citations and internal quotation marks omitted) . w The 1929 by-law was a complete by-law enacted pursuant to the then applicable zoning enabling act . - The 1929 by-law applied to the entire town and was an effort to preserve the residential nature of the town while at the same time complying with the requirement that existing structures and uses be given legal nonconforming status . See St . 1920, c. 601, - § 7 . The 1929 by- law provides that all property in Barnstable is in a residential zoning district unless a permit is afforded otherwise . This type of zoning is permissible . See Gage v. Egremont, 409 Mass . 345, 348 (1991) (general laws do "not direct that every municipality adopting a zoning by-law have more than one zoning district or that such a by-law permit business uses as of right in some part of the municipality" ) . The 1929 zoning by-law is not spot zoning and should have been applied by the court below. When the 1929 by-law is applied, all commercial . activity, with the exception of automobile salvage, is prohibited on the property. The property was never subject to any special "existing use" status conferred by the applicable zoning enabling act, because in 1929 the property was woodland; nor was zoning relief ever issued for commercial use other than the salvage of automobiles . Without zoning relief the property may not be, and 5 never legally was,' used as a gravel pit or as a place to commercially process fill, or for depositing fill, brush or clippings . The only permitted uses on the property are single-family residential use and automobile salvage, consistent with the terms of the previously issued use variance and special permits . Having so found, we need not address the remaining issues brought on appeal . The judgment of the Superior Court is modified by striking the clause in paragraph 1 that begins with "except" and ends with 111956 . 11 As so modified, the judgment is affirmed. So ordered. By the Court (Gelinas, Kantrowitz & Doerfer, PIZ �n-c4-rti� Clerk Entered: October 28, 2002 6 1O.6S•02, Article 10. The Town of Barnstable� is hereby divided into districts, subject to :.,./ the provisions hereinafter stated, to be known respectively as non-residenc districts and re siden'ce districts as follows: Non-residence Districts subject to change as hereinafter provided, shall comprise all landsfwhich at the time this By-law becomes effective are used for any business or industry other than farming, truck gardening, the growing of trees, shrubs, vines or plants, and the raising of animals, Residence Districts, subject to change as hereinafter provided,. shall comprise all areas not included in Non-residence Districts. Subject to the .provisions hereinafter stated, no parcel of land lying in any Residence District and not at the time this By-law becomes effective devoted to any business or industry, other than those hereinbefore. specified shall hereafter be used for any business or industry, or for any purpose except for residence or purposes .of buildings, appurtenant thereto , or for churches, schools and similar non-commercial or non-industrial b, ,iildings, and no permit shall be issued for the erection, alteration or coversion of .any building for or to any such prohibited use upon any such .parcel, except as hereinafter provided. A permit may be issued for the erection in any residence district of a building for the purpose of any business or industry or for the alteration or conversion of a building in such district for or t_o such purposes, if the Selectmen shall after public hearing so order, provided that no such permit shall be grante except upon written application and after a public heating of parties interested and consideration of their evidence by the Selectmen; notice of said hearing being given by publication of the time and place thereof in a local newspaper not less than two weeks before said hearing, the expense of such publication to be borne by the petitioner.' After such hearing the 1 Selectmen shall render a decision in writing, stating the decision and the reasons therefor and file the decision with the Town Clerk and send a copy thereof, to the applicant . I hereby certify that the foregoing by-law. .was adopted by the Town of Barnstable on June 14th, 1929 , and approved by Joseph B. Warner, Attorney General , on July 2 , 1929 . Attest: Clarence It. Chase, Town Clerk.