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HomeMy WebLinkAbout800/810 WAKEBY ROAD � 6.i i / � t ` ^o , ql __ � o ��" / � " TOWN OF BARNSTABLE aARMAet,e. ' OFFICE OF TOWN ATTORNEY e 367 MAIN STREET EoA HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D. SMITH, Town Attorney TEL.(508)862.4620 RUTH J. WEIL, Assistant Town Attorney FAX #(508)862-4724 CLAIRE R. GRIFFEN, Legal Assistant THERESA M. CAHALANE, Legal Clerk November 15, 1999 Mrs. Phyllis A. Day, Clerk Barnstable Superior Court County Court Complex, Main Street P.O. Box 425 Barnstable, Massachusetts 02630 Re: C.A. No. 98-87 Gifford Brothers Sand & Gravel, Inc. v. Glynn, et al, etc., Zoning Board of Appeals Our File Ref: #98-0036 Dear Mrs. Day: Enclosed herewith please find for filing the following documents on behalf of the Defendants, Barnstable Zoning Board of Appeals together with Certificate of Service which we would appreciate your filing with the Court. 1. Defendants' Complaint for Civil Contempt Pursuant to Mass. R. Civ. P. 65.3; . 2. Affidavits of James McDonough, Anne Salas, Thomas Perry, Ralph Crossen and Barnstable Police Detective Paul Everson in Support of Complaint for Civil Contempt. i Thank you for your courtesy and cooperation in this matter.. Sincerely, j RJW/tmc th J. Weil, Assistant Town Attorney Enclosures own of Barnstable Q cc: Gregory M. Downs, Esq. Barnstable Zoning Board of Appeals TT ✓ �' Ott—) 198-0036Wayapmcl. f COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-87 GIFFORD BROTHERS SAND COMPLAINT FOR CIVIL AND GRAVEL, INC., CONTEMPT PURSUANT Plaintiff, TO MASS. R. CIV. P. 65.3. V. EMMETT F. GLYNN, RON S. JANSSON, GENE BURMAN, RICHARD L. BOY, ) GAIL NIGHTINGHALE, ELIZABETH ) NILSSON, THOMAS A. DERIEMER, ) DAVID RICE, and KEVIN MINNIGERODE, ) as they are Members and Alternate ) Members of the TOWN OF BARNSTABLE ) ZONING BOARD OF APPEALS, ) Defendants. ) NOW COME the Defendants, Emmett F. Glynn, et al, etc., Members of the TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, and, pursuant to Mass. R. Civ. P. 65.3, state the* laint for civil contempt as follows: 1. On October 22, 19 8, the Barnstable Superior Court, O'Neill, J., issued the following Interlocutory Order on the Preliminary Injunction in the above-entitled action (copy of said order is attached hereto and incorporated by reference herein as Attachment A): "This action came on to be further heard at this sitting upon the return of an order of notice to show cause why the application for a preliminary injunction should not be granted, and was argued by counsel; and thereupon, upon consideration thereof, it is ORDERED and ADJUDGED that upon payment to the clerk of sum of $50 the application under the motion is hereby granted, and the defendants, are seeking to enforce the town of Barnstable zoning ordinance against the plaintiff, Gifford Brothers Sand and Gravel, Inc., which is enjoined and restrained from engaging in activities other than those lawfully permitted at the premises located at 810 Wakeby Road, Barnstable, (Marstons Mills), Barnstable County, Massachusetts, until further order of Court." 98-0036/contemptl r 2. The Interlocutory Order on the Preliminary Injunction was served in-hand upon Chris Keyes on October 26, 1998. 3. Plaintiff, Gifford Brothers Sand and Gravel, Inc., filed this case as an appeal pursuant to G.L. c. 40A, §17 from a decision of the Barnstable Zoning Board of Appeals, which upheld the cease and desist order issued by the Building Commissioner for the Town of Barnstable. (Copy of the decision of the Barnstable Zoning Board of Appeals is attached hereto as Attachment B). 4. The cease and desist order of the Building Commissioner dated October 22, 1997 (copy attached hereto as Attachment C), stated as follows: R "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 pre-existing 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. 5. After a trial on the merits of the Plaintiff's complaint, this Court (Nickerson, J.) issued Findings of Fact, Rulings of Law and Order of Judgment, by decision dated June 25, 1999 and by Judgment on Findings By the Court dated July 21, 1999 (copy attached as Attachment D) in which the court ordered: "(1) that the decision of the Board of Appeals, Town of Barnstable, 98-0036kcntempt] Page 2 i 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 except as to the removal of gravel on that portion of the property appropriated to the use in 1956... 6. The trial court, (Nickerson, J.) in its Findings of Fact, Rulings of Law and Order of Judgment, found "[f]or the above reasons, plaintiff is left with the right to mine that portion of the site appropriated to gravel mining as of 1956. That area is best described as the southernmost five acres of the site shown as cleared land on Exhibit 25. To the extent this decree leaves plaintiff mining air, see Wayland ll, such result is a reflection of the realities of gravel mining coupled with the passage of two score years, and does not indicate hollow justice." (Findings of Fact, Rulings of Law and Order of Judgment, at page 13; Copy attached hereto as Attachment E). 7. At trial, Chris Keyes testified that he was corporate president and principal of Gifford Brothers Sand and Gravel, Inc. 8 On diverse dates and times since the Superior Court issued its order through the present, the residential abutters have observed the following: On the northerly and norheasterly portion of the property at 810 Wakeby Road , a front-end loader being operated, beginning as early as 7:05 a.m. The front-end loader was noisy, creating dust and noxious fumes. . Dump trucks have been observed bringing materials onto 810 Wakeby Road. On many occasions, soil was viewed being screened on the northerly and northwesterly portion of 810 Wakeby Road and then subsequently removed on a dump truck bearing the name "C. Keyes" and in other dump trucks with no identification. A new hill of loam has been created. The processing of loam has subjected the residential abutters to a barrage of noise, dust and vibrations. In addition, for the first time, (9&M36/contempt) Page 3 junk cars, trucks and vans have been dumped behind the house of Anne Salas. (See affidavits of James McDonough and Anne Salas, attached hereto as Exhibits 1 and 2). 9. On August 16, 1999, Thomas Perry, Town of Barnstable Building Inspector, went to the premises located at 810 Wakeby Road, Marstons Mills, MA, in response to a complaint that Chris Keyes was screening topsoil on the premises. (Affidavit of Thomas Perry, ¶3, attached hereto as Exhibit 3). 10. When Mr. Perry drove onto the premises, Mr. Perry observed a front-end loader in the northerly portion of the parcel, close to Mockingbird Lane, which front-end loader was loading dirt into a screener. (Affidavit of Thomas Perry, ¶3, attached hereto as Exhibit 3). 11. On or about August 16, 1999, Town of Barnstable Building Commissioner, Ralph Crossen, spoke with Chris Keyes who acknowledged that he had been operating the front-end loader observed by Tom Perry. Within the course of telephone conversation, Chris Keyes admitted that he was screening loam and bringing materials into the portion of his lot furthermost away from Wakeby Road and in close proximity to the residential abutters. Keyes stated that he disagreed with the Judge's ruling regarding the limitation of the area and activities he was permitted to engage in at 810 Wakeby Road. Mr. Keyes concluded the conversation by stating that he did not intend to stop doing what he had been doing on the site. (Affidavit of Ralph Crossen, ¶8, attached hereto as Exhibit 4). 12: On or about October 15, 1999, Barnstable Police Detective Paul Everson, observed an 18-wheel tractor trailer, bearing the insignia °Child"s Trucking of South (98-0036/contempt] Page 4 I Dennis," transporting materials into the 810 Wakeby Road, Marstons Mills, MA property. (Affidavit of Paul Everson, ¶7, attached hereto as Exhibit 5). 13. On October 26, 1999, Detective Everson observed a front-end loader working just behind Pat Gifford's residence, at the premises located at 810 Wakeby Road, Marstons Mills, MA. The operator of the machine was actively screening and processing various piles of loam and earth, loading it into a green sifting machine, which mechanically processed this material. Detective Everson also observed piles of concrete and tar which he subsequently verified had been dumped there by Child's Trucking and Deco Trucking on October 14, 1999 and October 15, 1999. (Affidavit of Paul Everson attached hereto as Exhibit 5). 14. Under the terms of this Court's orders, the only activities that Gifford .Brothers Sand and Gravel, Inc. and its president and principal, Chris Keyes, are permitted to engage is the operation of a salvage yard, in compliance with the terms of the previously issued permits by Zoning Board of Appeals, single family residential use and the removal of gravel on that portion of the property appropriated to the use in 1956, which is described as an area extending 300 feet from Wakeby Road and in no case, greater than five acres. 15. Even after the Superior Court decision, Chris Keyes and Gifford Brothers Sand and Gravel, Inc., continued to engage in a multitude of noxious activities throughout the property that were impermissible under the terms of this Court's orders. The abutters have been subjected to loud noises from the screener in the early morning hours as well as fumes and dust from the front-end loader used in the manufacturing and processing of loam on the property. Keyes has stated that he does not agree with (98-0036/contempt] Page 5 r or intend to comply with this Court's order and has subjected the residential abutters to a campaign of land-use terrorism. 16. Chris Keyes is the principal of Gifford Brothers Sand and Gravel, Inc., and said individual has knowingly and willfully violated the orders of this court by engaging in activities other than those permitted under this Court's orders, to wit: activities other than the operation of a salvage yard, in compliance with the terms of the previously issued permits by Zoning Board of Appeals, single family residential use and the removal of gravel on that portion of the property appropriated to the use in 1956, which is described as an area extending 300 feet from Wakeby Road and in no case, greater than five acres. Chris Keyes and Gifford Brothers Sand and Gravel Inc., are likely to continue to knowingly and willfully violate the orders of this Court. WHEREFORE, the Defendants pray this Court: (a) order the issuance of a summons directing Gifford Brothers Sand and Gravel, Inc. and its principal, Chris Keyes, to appear before this Court not later than ten days from the date that this Complaint for Contempt is filed for a hearing on the merits of the complaint, and/or considering such other matters or performing such other actions as the Court may deem appropriate; (b) grant judgment for contempt; (c) order that service may be made upon Chris Keyes and Gifford Brothers Sand and Gravel, Inc. either by certified mail or by personal service; (d) assess and order the payment of a fine for such contempt; (e) issue further orders requiring compliance with this Court's orders; 98-0036/contempt) Page 6 r (f) order the incarceration of Chris Keyes until such time as the Order of this Court is complied with; (g) order such other remedies as are just and proper. Dated: November 15, 1999. BARNSTABLE ZONING BOARD OF APPEALS, TOWN OF BARNSTABLE, Plaintiffs, By th ttorneys, OBERT D. SM , Town Attorney [B.B.O. No. 469 ] RUTH J. WEIL, 1st Assistant Town Attorney [B.B.O. No. 519285] T. DAVID HOUGHTON, Assistant 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) TO: GREGORY M. DOWNS, ESQ. Attorney for Plaintiff P.O. Box 1637 Sandwich, MA 02563 CERTIFICATE OF SERVICE Barnstable, ss. November 15, 1999. I hereby certify under the pains and penalties of perjury that a true copy of the herein document was served upon the Plaintiffs attorney by first-class mailing on the above date. uth J. Weil, Esq. [9M36kontemDt] Page 7 t�mnmunmp of �tts�ttrl�u�Pi�s SUPERIOR COURT. BARNSTABLE, ss. No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC. VS. ZONING BOARD OF APPEALS, TOWN OF BARNSTABLE INTERLOCUTORY ORDER ON PRELLN1INARY INJUNCTION on came on to be further heard at this sitting upon the return of an order of This ach in unction should not be granted, notice to show cause why the application for a preliminary and was argued by counsel; and thereupon, upon co 5d0eration thereof, it is ORDERED and ADJUDGED that upon payment to the clerk of sum of 1190 the application under the .................... �a€c s motion.............................................................. . .......... .. ..AxweRst i hereby granted, and axe...se.e.k.i.ng...to...e.n.£QrG� th ord Brot s sr Sand and Gravel, Inc . the defendants laintiff , Gi.f.f ............... or.d. nance....a.ga. nst_.:the...p........................ ..... . . which .,e,n.g.a..ging...in..,actiy. t. es...other...than..those is enjoined and restrained from . lawfully...perm.itted...at..the premis..........located at .810Massachusetts , Barnstable County, ................ Barnstable, (Marstons Mills) ................................................ .. .... ....... ............................... ............... until further order of Court. By the Court , O'Neill , / G� ................. Clerk. i �. .. October 22 ►................... 19 98 �.. Entered ................................ �,. .. A true. opy, Attest `' Clerk epartment of Health Safety and Environmental Services AITACHI C Building Division ° ivad 367 Main Street,Hyannis MA 02601 Off Ralph Crossen Fax: oua-iyu-otju Building Commissioner CEASE AND DESIST October 22, 1997 Harriet Ha-vward, Trustee and William Gifford 800 Wakeby Road Marstons Mills, MA 02648 Re: 810 Wakeby Road, Marstons Mills, CIA 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 RNIC.km cc: Attorney J. Douglas Murphy Attomey Gregory M. Downs ATRMCWYATM-P. Attorney Charles Sabatt Robert Smith, Town Attornev Christopher Keyes ft i , SS enclosure Kathleen Maloney, ry public My commission wq*9B2J26/2004 CERTJFIED (MAIL P 339 592 416 R.R.R - 1 tubo WIN lu 100dwVe(tie • •Corrplsle Item 3,4s,and fib. - V••. /�.�,.,, •� pu an nnM d address on"wMN of thislorm so 8W we CM Whin tft e�� )eefV10N(Am M •pAsttmac�Ih�Oft toff to the hoot of ft mdlpboa,or on the back N spew does not 1. ❑ AfteeMe'e •WMa•Aanwn Rawtor grvuwbd'an tlr mMplaoa below the artlda nunwr 2. ❑ ResWed Do�� •The Ralum Receipt vA stow to wfgrn tln aRlde was delivered and the date delivered. Consul poetme lar kw 41L 3.Artlde Addressed to: n 1�1 4a.Ardcle Number Y' e � —YuS 5p 2 16 l�i,\\ .4_..-�� G•(�cr� 4b. ervlce Type O Registered O C� 'fT�visS / m S w�ifi O Express MeN ❑ fiwret i O Ratwr►Reosipl itx eu O oDD 2 6�{ 7.Date of Delivery S.Received By:(Pdnl Neme) S.Addressee's Address(Orly and f"/a v6d) 8• ee rA t x PS Form 3811r December 1 tozs�s>-sons Domestic etUm •1 HENRY L. MURPHY. JR. MURPHY AND MURPHY TZLZPHONE J. COUGLAS MURPHY (SOO) 775-3115 COUNSELLORS AT LAW 243 SOUTH STREET F X G. ARTHUR HYLANO, JR. (508) 775-3720 SUSAN MERRITT—GLENNY LOCK DRAWER M ALSO ADMITTED IN CONNECTICUT HYANNIS. MASSACHUSETTS 0260 1—1412 E-MAIL murphla W a capecod.net PLEASE REPLY OUR FILE NO. September 11, 1997 NOTARY PUBLIC 11879 Ralph Crossen, Building Commissioner TOWN OF BARNSTABLE 367 Main Street Hyannis, MA 02601 Re : PREMISES AT WAKEBY ROAD, MARSTONS MILLS (ASSESSOR' S MAP 13, PARCEL 52) Dear Mr. Crossen: I represent Mr. and Mrs . James P. McDonough, immediate contiguous abutters to the above referenced parcel 52 (the "Premises" ) who reside at 111 Mockingbird Lane, Marstons Mills with their two minor children aged 17 and 8 . The Premises are located in an RD-1 residential zoning district in which the Principal Permitted Uses are only Single Family Residential dwellings . Stabling horses is allowed as an accessory or Conditional use, and golf courses, family apartments and Windmills or similar energy : conversion devices are Conditionally Permitted. Lastly, Open Space Residential developments are permitted by Special Permit .' No other uses are authorized by right under the current Ordinance . Notwithstanding the foregoing, the owners and/or occupants of the Premises engage in the mining and processing of sand and gravel obtained from both within and without the Premises . In addition, the Premises appear to have recently been utilized for the production and/or processing of loam, bark mulch and site clearing debris . The owners and or occupant/operators of the Premises have engaged in and continue to engage in pursuits on the Premises, including the foregoing, that are impermissible as a matter of unilateral right under the Town of Barnstable Zoning Ordinance . Research and review of the records at the Zoning Board of Appeals (the "Board" ) discloses no evidence of necessary relief ever having been allowed by the Board in the nature of variances or Special Permits requisite to the cited activities undertaken on the Premises . ' 1 i You are respectfully requested, pursuant to G.L. c. 40A and the Town of Barnstable Zoning Ordinance, to enforce the By-Law with respect to the above referenced Premises . Despite a somewhat varied history, research indicates that the most recently permitted use (aside from permits for use of portions of the Premises for the construction of certain improvements) applicable to the cited parcel generally and controlling the over all use, is that described in the Decision for Special Permit in Board Docket No. 1969-17 dated February 27, 1969 (herein the "1969 Petition" ) a copy of which is attached hereto as Exhibit "A" . The 1969 Petition sought and obtained a Special Permit for permission to permit the extension of a non-conforming use by the construction of a building and to include the sale of used auto parts from the premises . The 1969 Petition also described the Premises which were the subject thereof as a lot 250 x 2000 feet containing approximately 23 acres whose then alleged "present use,, was used for metal salvage, with a then proposed use for used auto parts . The Decision in case number 1969-17, a copy of which is attached hereto as Exhibit "A-111 , describes the Premises as a " . . . 16 acre Parcel. " Furthermore, the 1969 Decision contains the observation that : "Mr. Curley (attorney for the Petitioner) 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 surrounded by woods on three sides and the power line on the back. A copy of the current assessor' s map disclosing the layout of the referenced power line and showing the adjacent, currently developed residential lots is attached hereto as Exhibit "C" . The 1969 Decision concluded that : •Because of the large acreage owned by the Petitioners which surrounds the salvage yard operation, the Board feels that it is not detrimental to the neighborhood. • The Board unanimously voted in the 1969 Decision to grant a Special Permit to William Gifford, Maynard Gifford and Kenneth Borthel (tenant) for the construction of a building to be used for the storage and sale of used auto parts, . Even this use was to be restricted to the period of time during which the Petitioners or the tenant retained ownership of the present 16 acre parcel . Clearly it was requisite that the treed screening areas be retained. The use alleged to be the "present" use of the Premises as described in the 1969 Petition was itself permitted only after obtaining a Variance from the Board in its earlier Decision in Case No. 1964-18 dated April 30, . 1964 (herein the "1964 Decision") , a copy of which is attached as Exhibit "B" . 2 The 1964 Decision was predicated upon a Petition for Variance dated March 23, 1964 and filed on April 7, 1964 (the "1964 Petition" ) which described the dimensions of the lot as 205' x 2500+ with an area 23 acres. The Petition went on to state, amongst other reasons purportedly justifying the Variance, that the proposed area was about 1000 feet from the road. The 1964 Decision granted permission subject to several specific conditions, including: 1 . That the use of the land in the new location (the use was to permit relocation of salvage operations and storage of used parts from a site in Santuit, to the locus) be restricted entirely to that area behind the screened trees; 2 . [Relates to the construction of a building] ; 3 . No trees are to be removed; 4 . (This provision related to clean up of the Santuit operation which had apparently been the prior site for the salvage and storage operation) . It is evident from the records generated from time to time by or at the behest of the landowners and occupants of the Premises that the intentions of the owners and occupants, as Petitioners and the members of the Board of Appeals as they apprehended the situation, considered the entirety of the 16 acre parcel currently referred to as Assessor' s Map 13 , Parcel 52 (the Premises) as the subject of a Variance and subsequent Special Permit to enable use of the property for the conduct of an automobile salvage yard and the sale of used auto parts, with the construction of certain non- conforming improvements on the property in the interim. Nowhere in the .history of the Board of Appeals records nor apparently in the Building Commissioner' s office does there appear lawful authority under the applicable zoning by-law or ordinance to conduct a contemporary sand and gravel excavation/mining operation, nor to process sand, gravel, bark mulch or other materials, nor to conduct a processing and/or distribution facility on the referenced Premises . Any pretense that the suspect uses are to be permitted as lawful, pre-existing, non-conforming uses must fail in the face of the record of permissible uses under the zoning ordinance and its predecessor by-law. The owners and/or operators themselves repeatedly acknowledged the existence of non-conformity when they initiated requests to construct improvements for the limited uses permitted by the outstanding variance and special permits . • 3 You are therefore requested to enforce the Town of Barnstable Zoning Ordinance and State Law by ordering the owners and/or occupants of the cited Premises to cease and desist all operations specifically included but not by way of limitation the sand and gravel mining, excavation and processing, the processing of landscape materials and the temporary storage or transhipment of the same other than those permitted as matter of right under the existing Ordinance and those conforming to the current, express permissions granted by the Board of Appeals in the cited and related cases appearing on the Board' s docket . Thank you for your prompt and considerate attention to this matter. Sincerely � r J. Doug s Murphy JDM:bb cc : James P . McDonough A TRUE COPyg7TEST K�E�leen Ma lone , Notary Ptoic My commission expires 2/26/2004 sys3\daily. let\jdm\crossen. 912 4 1alIF sees ia77• � TOWN OF BARNSTABLE PETITION FOR VARIANCE UNDER THE ZONING BYLAW SPECIAL PERMIT To the Board of Appeals, Hyannis, Suss. Date February 27, 19 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 pretises. Applicant: William Gifford and Maynard Gift'ord Santuit, Massachusetts (Full Name) (Winter"drum) Owner: William Gifford and M3=ard rifford Santuit- Massachusetts (Fall Name) (Winter Address) Tenant (if any): Kenneth Borthel 4ewlJjn :toad. Santuit, Ma3sacllusetts (Fall Name) (Winter Address) 1. Location of Premises Wakeby Road 4ewton, Massachusetts (Name of Street) (Wbat section of Town) 4- (L 4 �`Y 4- Dimensions of lot M ; O �`o-Fe Area (Frontage) (Dep(h) (Square Feet) 3. Zoning district in which premises are located_ R D 3 4. How long has owner had title to the above premisesl years 5. How many buildings are now on the lu: One 6. Give size of existing buildings I< 12 Proposed buildings „j x i0 7. State present use of premises `fetal S_al vaep S. State proposed use of premises Used auto parts 9. Give extent of proposed construction or alterations: only addition of building 10. ?dumber of living units for which building is to he arranged none 11. Have you submitted plans for above to the Building Inspeetort yes 12. Eras he refused a permitl yes 13. What section of zoning by-law do you ask to be varied f 14. State reasons for variance or special permit: _ There is a need for the business we seek in the aeneral area. it weld a tally help rl n up snmp Of thp pro- blems of old cars in areas where tF:ere should not be.One of your petitioners 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 I'otition received by (Addy Hearing date set for 19 • vilin. of E21101) rtryuired with this petitiun. This fur.- also be used for appeals. (Over) TOWN OF BARNSTABLE Board of Appeals ILI.TAM (:TFFnIIi1 R, MA ^*A^ *TFFORD Petitioner Appeal No. may-2l 19 69 FACTS' and DECISION PetitionerRD--4-,%iAYNARII-B;FIMUetition on ___j!8h .-27-,1s 69, requesting a variance-permit for premises at __wak8 bY--RGad AbE[60C in the village of _.MgY'.aL0�18--dti-l-l-e-- , adjoining preiuises of-.�;.�e�•-�-1.�--�kei�--klE•ed--�.r--��-Ii�iii}-R. Est--RBrD.ld-.TOIIe S�--F3--dc- for the purpose of Ohl'l i n TsrmiaB3on._ Lo _ extension of anon-conforming use by he on truanctio$n of a buildlrmit an.d.-t0__11 . 11Lde__Ma snl"r_usacl-auto_ parta. ng — Locus is presently zoned in —g-�pS�dP.21C6— -}—at'8(L Notice of this hearing was given by wail, postage prepaid, to all persons deemed affected and by publish:;ng in Cape Cod Standard Times, a daily newspaper published in Town of Barnstable a copy of which is attached to the record of these proceeding; 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 a:15 X= 19 69, upon said petition under zoning by-laws. Present at the hearing were the following memberi: $�1]ert F. n�l►Te� � �$�-II6�9H Chairman �lltn* Gn i n a __ 'nt Me co union of the hearing, the Board • A view advisement. book said petition under of the locus was had by the Board. ............................................................... 19......., the Board of Appeals found The Petitioners were represented by John P to Attotuey stated that the Petitioners Curley,Jr. ,Cs to eZtend a non..conto were seek 9- the sale of used auto use by construct permission use was granted b parts.. Mr. Curley stated for the now building1 the Board of Appeals original sell those s On is to house salvagoableIn 1964- The Purpose of Petitioners toeocurthe dii�res• It 'fill from cars and to would b. dependent on the granti.n type salvage license but this or the Appeals. The ezistizlg buildin 8 Of a Permit by the Board of building 3t z 3o' Would be constructede removed and the new stated that the petitioners own a Mr. Curls that the operation of the salvage Y further approximately 14-16 acres and Middle o4 the parcel su 8 yard would be located in the Power line on the back. rrOnded by Woods on three sides and the It Was the opinion of the was not unreasonable board that the eztension requested the intent of the Petiti nereaieato band in this location, and carry on their business. e a larger building to the Petitioners Because of the large acre Board feels that It ch surrounds the salt' acreage o�rned by The Board it is not detrimental toatheyIIe gOperation, the struction o unanimouslyvoted to buildingl to be Used fo grant r thecial storaee�� for the con_ used auto parts to William Gifford hichel, (toamtt . Maynard tiifford andalo of ouneth which t S• to be restricted to that present s or the Tenant retain Period time during 4acre areal. P of the Distribution:—' Board of Appeals Town Clerk Applicant Town of Barnstable Persons interested Building Inspector Public Information ` F• Board of Appeals BY .........I......... V noli&rt...r...... r Chairman 0 ITeiI TOWN OF BARNSTAB. LE ' Board of AppeaLs i Petitioner Appeal No. —1 �•18 i t FACTS and DECISION Petitioner filed petition on Zth -equestin; s �ariance7¢MgM for premises at in��t-- 12• , adjoining premises o i• nth the village 0 Jae pred d Amth R. M11am bde,,•� I� Qalan• Ae or the purpose of MMi909 tpr Of TOr iclaa and etMVP of Wed peirta 1 Locus is presently zoned in BOeidarps D Notice of this hearing was given by mail, Postage g prepaid, to all persons deemed affected and publishing in Cape Cod Standard Times, a daily newspaper published in Town of Barnstable a PF of which is attached to the record of these proceedings filed with Town Clerk. A public hearing by the Board of. d (e PPeals of the Town of Barnstable was held at the Town =:ce Balding, Hyannis, Mass., at 3#15 18 . P.M. AWJJ 23rd•gi 1 p, ;0. n said petition under zoning by-laws, 9"' ' Present at the hearing were the following members: J. R• SITI '_3.R R)L M :. PTiiL Chairman 'J r i At the conclusion of the bearing, the Board took said petition under advisement. A view of the locus was had by the Board. On ...................................................................................... 19......... the Board of Appeals found Thatclar Gifrard# the Petitioners was represented by Joseph Dooebers Seq. Ift chor stated that the petitioner eras oeolting a variance to move an existing amobilo parts salvage business to a new loc ocation in which the itioner proposos to locate his busine es is a vel pit no Wabety Road Marston= Mills• The area is now zoned as Ass a . The business ch the petitioner presently operates in 9eatuit has become an eyesore to the unity and the petitioner reels that it Mould be in tbo boat into.cote of al ae:nod to move the businsoo to an, area Wall away from the travelled highvaq* is the opinion of man? people thaw the eitua-ion sas it now, exists creates �dahip not only for the tillage of Santuit, but also for Cotuite Mr• 8eeohW ►-ed that the proposed location is about 2000 feet from the road and is locat a holies with a screen of trees surromding the trout part of the lots Be ited than stoned vehicles would not be visible fro= the road. Dra Boucher -ther stated that the phys Seal condition of the proposed location vas smh Lt it could not be used for residential purflosese To deny the owner use of th id for any purpose would result in- a severe bardship to hime 12 people either Ao ar vere recorded in favor of petitioners request and 6 people spoke in -)on itione It van the opinion cf the Board teat Wm existing automobilo parts salvac ,3ration in its present locations ran created a serious problm for the entire ighborhoode The location of salvage yardo is a difficult, probloct in any area t:e tadne However# Win important that they be placed in areas UdhM aWay = the Snell-travelled h1d aya and utero the day to day operation. may be reonod from- vlev as much as possiblee The location for vich the petitioner eke permission to use, seems to fit these* It is ioportant to note that rsons who cm. property near the proposod location spoko in favor of grantin, ie request as the lesser of two evils. The Board further rournl that owing to nditiona i i 1 egvcially affecting thin parcels but not affectinc nerally Uhl zoning district in which it is locateds- a literal onforement of e Dy-Law wou]d involve substantial hardship to the petitioner and further the lief could be granted without nul3lfy ing or substant inlly derrogating from th .tent .and purpose of the zoning by-lave The Board ummimausly voted to grant .titioners- request , subject to the following conditions; I& Thht the use of th rd in the new location be restricted entirely to that area behind the screen 'Case 2= That ly am buildin` may be const: it voted for use in connection wh :o sa1v- ca� ago yard and such bui]dhg must be located behind the screen Of treese trees are to be ,removed* ULIt the present location at 8outuit be somplets ..oared of all material Within a csonable time, • Distribution:— Board of Appeals Town Clerk Town of Barnstable Applicant Persons interested Buildin¢ Inspector ;Z�7 1J w \ 1\ v* • J too I vrc \ ♦ 40 asOL.w..tv16 gag � \ t� \ \ o �\ C• ; } SL \ s \ SS �� 1 r \ � -A4 �t O O © \• fp\ I t� fp 3 2 ! © \ I +.00AC 3-3 t,rq&C i 004C06,1C 1 -4 � 2 a' 1•00AC 3'S .y.! 1-0OA co \ !0 0 \ o Esc \ ,so t• \ . o • •i .� .ap o • 0 +ta.s oo^c 3 s J y GOAL 0 1 02AC_ • ti t ,Y U i 0 S Yy 1' 03 4 !p 15.E an 09B Kam •y6. nd Town of Barnstable Zoning Board of Appeals A TRUE COPY ATTEST Decision and Notice Appeal No. 19977133 - Gifford Brothers Sand Gravel Appeal of the Building Commissioner Town Clerk . BARNSTABLE Summary........................................Upheld Building Commissioners Decision Applicant:.......................................Gifford Brothers Sand 8 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. f - 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. 196441 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 Attomey. Mr. Crossen stated that the memo was an intemal 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 2 i Town of Barnstable-Zoning Board of Appeals.-Decision and Notice Appeal No. 1997-133 - Gifford Brothers Sand&Gravel Appeal of the Building Commissioner records, aerial photos, zoning information, and tax information. From that information he issued the Cease and Desist Order of October 22, 1997. 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 concem 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. 3 r Town of Barnstable-ZoniWBoard of Appeals-Decision and Notice Appeal No. 1997-133 - GHtord Brothem Sand&Gravel Appeal of the Building Coins iorw 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. 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_exparmion 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'pir. 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. 4 I i T ,awn of Barnstable-Zoning Board of Appeals.Decision and Notice Appeal No.1997-133 - Gifford Brothers sand 6 Gravel Appeal of the Building commissioner 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. Weavers 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. 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 196141 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 theexcavating 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 34 trailers. Attorney Murphy noted that there appears to be a commercial use -storage. 5 f Town of Barnstable-Zoning Board of Appeals-Decision and Notice al No. 1997-133 - Gifford Brothers Sand 6 Gravel Appe Appeal of the Building Commissioner 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 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 16 213 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 -- esist Wakeby Road, rder to Harriet Hayward,Trustee, and William Gifford, pertaining to the property in issueMarstons Mills. 4. Under the terms of the Cease and Desist, the Building Commissioner determined that the"use on the ing of file, the screening of fill,.depositing of fill, brush and clippings or property for a gravel pit;-process 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,�ve1or'the fpurposeso he adoption of zon ngrin9hat aing rea, which ng on, or running a screening operation. It was a g pit, P 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 beyondthe original nencompassingina almostothelng enti use ect assuming that the use was legally non-conforming -to a area 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 itsooriginal pert, as acknowledged that the pre-existing non-conforming use has expanded beyond 6 r , j Town of Barnstable-Zoning Board of Appeals.-Decision and Notice Appeal No. 1997-133 - Gifford Brothers Sand 3 Gravel Appeal of the Building Commissioner 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 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 Lr . after the date of the filing of this decision. A copy of which must be filed in the office of the Town /_d' 1 . 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 7 TOWN OF SANDWICH THE OLDEST TOWN ON CAPE COD P.O.BOX 660 SANDWICH,MASSACHUSETTS 02563 7EUPHONP=4157 LIST OF ABUTTERS SHEET 1 OF 2 ALL ABUTTERS LISTS MUST BE TYPED FOR APPROVAL $ MAP: PARCEL: . Wakeby Road (Asa Meiggs Road), Marstons Mills OVER: Gifford Brothers Sand & Gravel, Inc. ABUTTERS: MAP: 03 PARCEL: 46 NAME: O'Keefe, John J. et ux Elizabeth M. MAILING ADDRESS:RD#1, Box 331A Lagrargeville, NY 12540 MAP: 03 PARCEL: 45 Town of Mashpee 16 Great Neck Road North Mashpee, MA 02649 MAP: 03 PARCEL: 44 Boucher, David R. et ux Deborah M. 47 Asa Meiggs Road 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 Santuit P. Mashpee, MA 02649 MAP: 04 PARCEL: 51 Blakeman, Donald B. PO Box 597, 1 Santuit P. Mashpee, MA..02649 r i TOWN OF SANDWICH THE OLDEST TOWN ON CAPE COD P.O.BOX 660 SANDWICH,MASSACHUSETTS 02563 TMpHONE U"jS7 LIST OF ABUTTERS SHEET 2 OF 2 ALL ABUT-rER.S LISTS MUST BE TYPED FOR APPROVAL BE' MAP: PARCEL: Wakeby Road (Asa Meiggs Road), Marstons Mills Qg: Gifford Brothers Sand & Gravel, Inc. MAP: 04 PARCEL: 52 Town of Sandwich 130 Main Street t Sandwich, MA 02563 MAP: 04 PARCEL: 47 Haapaoja, Edwin A. and Betty Lou P_.0. •BOX 69. SPENCERPORT; •NY' 14559 MAP: 04 PARCEL: 46 Kinney, Craig W. 8 Evsun Driire Sandwich, MA 02563 1 a a i PAR: 4013 052. PAR: R013 056.002 PAR: R013 056.001 KEY: 3668 TAX COOE:300 KEY: 421706 TAX CODE:300 KEY: 421699 TAX CODE:300 HAYWARD. HARRIET P TR FANNING. EDWARD i ELIZABETH GATTO. MAUREEN E GIFFORO. WILLIAM 295 LONG POND RD 291 LONG POND RD 300 WAKEBY RD MARSTONS MILLS MA 02648-0000 MARSTONS MILLS MA 02648-0000 MARSTONS MILLS MA 02648-0000 PAR: R013 055. PAR: R013 054. PAR: R013 053. KEY: 3695 TAX CODE:300 KEY: 3686 TAX CODE:300 KEY: 3677 TAX CODE:300 2ANI. DIANE ECHOLS, WILLIAM HOWARD 9 CAMEROTA. JANE H Ri 2 BOX 33 ECHOLS, CAR14ELLA A 245 LONG POND RD MESHOPPEN PA 18630-0000 P 0 BOX 544 MARSTONS MILLS MA 02635-0000 FOXBORO MA 02035-0000 PAR: R013 026. PAR: R013 025. PAR: R013 024. KEY: 3409 TAX CODE:300 KEY: 3392 TAX CODE:300 KEY: 3383 TAX CODE:300 CULLEN, THOMAS M JR i 4ARY aERRIAN, BRUCE 0 9 REITA M SALASP ANNE E M 169 MOCKIN691RD LANE 157 MOCKINGBIRD LANE 145 MOCKING3IRD LANE MARSTONS MILLS MA 02648-0000 MARSTONS MILLS MA 02648-0000 MARSTONS MILLS MA 02643-0000 PAR: R013 034. PAR: R013 035. PAR: R013 023. KEY: 3491 TAX CODE:300 KEY: 3490 TAX CODE:300 KEY: 3374 TAX CODE:300 OCONNOR. VILLIAM E i SULLIVAN• DIANE 6 BURKINSHAW• MARY 8 OCONIJORi ROSEMARY 0 DENTINO. GLORIA V 133 MOCKINGBIRD LANE 102 PROSPECT ST 36 LAKE RD MARSTONS MILLS MA 02648-0000 WATERTOWN CT 06795-0000 W YARMOUTH MA 02673-0000 PAR: R013 022. PAR: R013 036. PAR: R013 021. KEY: 3365 TAX CODE:300 KEY: 3506 TAX COOE:300 KEY: . 3356 TAX COOE:300 FISHER• SANFORD W DUNN. JAY W t MARILYN J MCDONOUGH• JAMES P 27 LINDEN SQUARE 51 VICTORIA DRIVE 111 MOCKINGBIRD LN WELL£SLEY MA 02181-0000 HILTON HEAD SC 29926-0000 MARSTONS MILLS MA 02648-0000 PAR: 9013 020. PAR: R013 019. PAR: R013 011. KEY: 3347 TAX CODE:300 KEY: 3338 TAX CODE:300 KEY: 3258 TAX CODE:300' LONG POND FARMS ASSOC INC BERGERP SIDNEY & RHODA OROURKEP THOMAS J ') 0 oOX 1285 BERGERP R 6 FINKLESTEIN* J 26 DOVE LANE MARSTONS MILLS MA 02648-0000 23 DOVE LANE MARSTONS MILLS MA 02648-0000 MARSTONS MILLS MA 02648-0000 PAR: R013 009. PAR: R013 007. PAR: R013 004. K=Y: 3221 TAX CODE:300 KEY: 3212 TAX CODE:300 KEY: 3137 TAX CODE:300 MASTRANTONIO. VINCENT J MORSE, THOMAS R 9 JOHANNA 8 YORK. BERNARD D 9 SHIRLEY A MASTRANTONIOP MARY-4 19 LAKE SHORE OR 293 MEIGGS BACKUS RD 53 CUINCY ST SANDWICH MA 02563-0000 SANDWICH MA 02563-0000 OUINCy MA 02169-0000 PAR: RO13 05. PAR: R013 003. PAR: R012 008. KEY: 3�96 TAX COOE:300 KEY: 3178 TAX CODE:300 KEY: 3123 TAX CODE:300 • YORK, BERNARD D & SHIRLEY A BAKERP EVERT L HAMBLINP MARY HALL 9 293 MEIG6S BACKUS RD CIO.R BAKER SCHILLING. THEODORE A TRS SANDWICH MA 02563-0000 COUNTY RD NO. 806 HOLLOW REALTY TRUST SOUTHAMPTON MA 01073-0000 PO BOX 449 OCTERVILLE MA 02655-0000 133 J• 1 PAR: R012 007.001 PAR: R012 007.002 PAR: R012 003.002 KEY: 367445 TAX COOE:300 KEY: 367454 TAX CODE:300 KEY: 401247 TAX CODE:300 FED HOME LOAN MT6 CORP BORTOLOTTIi ROBERT J LORD• CRAIG M i 1410 SPRING WILL ROAD PO BOX 704 MARONEY. NANCY L MCLEAN VA 22101-0000 MARSTONS MILLS MA 02646-0000 252 ARROWHEAD DRIVE HYANNIS MA 02601-0000 PAR: R012 003.003 PAR: R012 003.001 KEY: 401256 TAX CODE:300 KEY: 401238 TAX CODE:300 LEAS. ROBERT 0 t MICHELLE PERRYP KEVIN i LITA 770 WAKEBY RD 750 WAKEBY ROAD MARSTONS MILLS MA 02648-0000 MARSTONS MILLS MA 02648-0000 Proof of Publication Town of Barnstable 8:00 PAL Gifford Brothers Zoning Board of Appeals Sand i Gravel Notice of Public Hearing Appeal Number 199T 133 Under The Zoning Gifford Brothers Sand i Grovel Ordinance for has appealed the Cease and De- December 161 1"? slst Order of the. e•Building Gor Ti all persons Interested I%or I misslaner dated October 2L 1997. affected by the Board of Appeals i The Building Commlsstoners let under Set 11 of ChaWorAdA of the I ter states"Upon investigation, I General Lows of the Common- - : have determined that the use of wealth of Massachusetts,and all your property for a gravel pit amendments thereto you are processing of fills the screening of hereby notified that: . fill.deposIlW.of fill;brush and 7:13 PAL Faslo clippings or any other similar Appeal Number 1997-132 uses Is In violation of Barnstable Thomas Fab has petitioned Zoning section 3-11d These to Zoning Board of Appeals for must Immediately coast and apecua 100111 puftu !t0 Sec- slsL"The property Is shown Assessors Map 013, Parcel tlon 4-2—Off Street Parking Reg- and Is commonly addressed as 81 Motions,Section 4.2A—Uxxtkft Wakeby Rood.Marston Mill. Sectlon,&2-7 — Sc.tdule of Off- In a RF Residential F Zonl Street Parking•Rm Iatlons and District., Section 4.2-i— Reduction of Re- Those Publlc Hearings will be dutrements/When Applicable. , held In the Hearing-Room: Sec- The Petffl ner Is seekkg to cent- and Floor. New Town Hall. 367 verf the current use of the proper- Main Street.Hyannls.Mossaaur ty from a retail bokery and res- setts an Wednesday, December tourant with 13 seats to a 10. IM. All plans and aoolica- restaurant with 49 seats. The flare maybe reviewed at the Zan- property Is shown an Assessors ing Board of Appeals Office, Map 327, No cot 254 and is cam- Town of Barnstable,Planning Oe- monly addressed as 294 Main partment,230 South Street,Hyan- Street,Hvannli MA In a B•Busl- nis,MA. ness Zoning District. Emmett Glynn.Chairman Zoning Board of appeals - 1 V1d,12f3197 ATrACHMErTI' : D TIIZti=ntV?d* lit flassart atb BARNSTABLE, ss. SUPERIOR COURT No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC. VS. ZONING BOARD OF APPEALS, TO`VN OF BARNSTABLE LiiMMENT ON FINDINGS BY THE COURT This action came on for trial before the Court, Nickerson, J., presiding, and the issues having been duly tried and findings having been duly rendered. It is DECLARED: that the plaintiff is not entitled to the relief sought; and It is ORDERED and ADJUDGED: (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 except as to the removal of gravel on that portion of the property appropriated to that use in 1956, and (,) that the Clerk of this Court within thirty days after entry of this judgment shall send copies thereof to the Board of appeals, Building Inspector, and the Clerk of the town of Barnstable. Dated at Barnstable, Massachusetts, this twenty—first day of July, 1999 . FORM OF JUDGMENT APPROVED: ,1us ice of the Superior Court �� �Clerk A true copy, Attest: 2 � �r Clerk Cs AITACE U E (Aaminantuaft# of Aasaari toptu BARNSTABLE, ss. SUPERIOR COURT No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC. VS. ZONLNG BOARD OF.A.PPEALS, TOWN OF BARINSTABLE FINDENGS OF FACT, RLIMS OF LAW AND ORDER FOR KEDGMENI T 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 %'akeby 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 e:ide,-ice. the court enters the following findings of fact. FItiBItiGS OF FACT 1. Plaintiff. Gifford Brothers Sand a-rid Gra:Vel, Inc. is a corporation organized under the !aws of the Commonwealth of Massachusetts and is the principal owner of the subject Proper- The Property consists of 16.6 acres and is located at 8 i 0 «akeby Road in Marston %tills, a village of the Town of Barnstable. The tract is irregular in shape running north some !.:50 plus feet from its frontage on R'akeby Road. 3. Lorenzo Thatcher("L.T.") Gifford, acquired the Property by deed from his uncle, Charles Gifford, in 1945. 4. In 1945, 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. 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 Wakebv Road. The area is clearly depicted on an aerial photograph taken in 1964 (Exhibit no. 25). Sometime after 964 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 Wakebv 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. 8. The Giffords used excavation equipment to dig the material, a mechanical screener to son it, and lame 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 such 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. 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-way back from Wakeby Road. Near to Wakebv Road, buildings were erected to accommodate the repair and salvage business. A welding shop was maintained in the buildings. The repair and salvage trade was a use secured by variance from the Zoning Board in 1964. 10. During the Giffords' tenure, portions of the Property were leased to 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 Wakebv 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 (Sze aerial photo of 1989, exhibit ?1]. 12. On occasion prior to 1995, construction debris, stumps and brush were buried on the Property. 13. By 1995, plaintiff was in control of:he Property. The summer of 1996 brought a significant change to the land. The Town was in the process of capping its landfill (the 'gown dump"). The contractor for the project entered *into an agreement with plaintiff to secure fill from the Property. During a four-month period approximately 150,000 tons of gravel was removed. The northwest quadrant 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 Mockingbird Lane. The buffer of trees between the excavation and the property line was removed. Families living along the southwest side of Mockingbird 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 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 land II Z) 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 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. (Exhibit no. 9). 4 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 gavel to cap the Town's landfill, the building commissioner wrote to Town Counsel as follows: "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." (Exhibit no. 19. On May 9, 1997, the building 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. 11. 10. 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 gravel.pit and to stop the processing of fill, the screening of fill, and the depositing of fill, brush and clippings (Exhibit no. i. From the latter Order, plaintiff took an appeal to the Board. .after appropriate hearings, the Board issued its written decision on January 27, 1998 upholding the building commissioner (Exhibit no. 17]. The present action followed in its wake. 3 i 22. The Board found, inter alia, that: . . . (Tlhere 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 glass. App. Ct. 55 L 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 o;Talmouth, 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 Assn v. Board of.4ppeal of Boston. 4'_6 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-Taw 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 beine 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 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 § 35, 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 (194,1) (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). :. 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 was 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 33 3. 5 & 11. as added by St.1954, c. 368 § : (1954). 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 Wakebv 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(§ 4-4.512)). 7 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 II building boom, the suburban towns of Massachusetts gave rise to a flurry of appellate decisions on the application of zoning law to gravel pits. Town of Wavlcnd v. Lee, 331 Mass. 550 (1954) ("Wayland IT'); 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. S. In 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 eastern 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 1995, 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 ofFair.1,eld v. Likarchuk's. Inc.. 614 A.2d 120, 12.3-25 (N1.J. Super. 1994). 9. Turning to plaintiff court relies legal argument. this cou relies on two more recent decisions which have established the protocol for evaluating the permissibility of non- conformine uses. Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973); Briage- c:er v. Chuck-ran, 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 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, 712 (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 gavel, earth, or other diminishing land asset removal operations. See _Moore v. Bridgewater Township, 173 A.2d 430, 437 (N.J. Super. 1961). The Qeneral rationale behind the doctrine is that in a quarrying or earth removal business, the land itself is an asset, which by the very nature of the operation, diminishes over time. The use 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 gavel pits in Wayland IL "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 »1. That said however, Massachusetts does not recognize the diminished assets doctrine as accepted b-,- 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 `'evada County, 907 P.2d 1324, 1337 (Cal. 1996) (discussion of varied approaches to diminishing assets across jurisdictions); Teuscher v. Zoning Board of Appeals, 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 gavel bed (or other mined 9 f 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). 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 H cases. See Township of Fairfield, supra, at 329, quoting:Moore, supra. '*[fln 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).; 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 552. The major difference between Massachusetts and the so-called "diminishine assets"jurisdictions, however, is that our courts are adverse to exempting gravel pit cases from the Powers/Chuck-ran framework,.a]lowing objective intent to mine to only factor into the first prong of the test, rather It is interesting to note that plaintiff here relies on the .Moore case. 10 i 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 Stram-ulla v. Building Inspector of!Wellesley, 357 Mass. 694, 697 (19 70); 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 removal, remains-the same as pre-1956 operations. Compare First Crestwood Corp. v. Building Inspector of:Middleton, 3 Mass. App. Ct. 234, 236 (1975). Plaintiff fails, however, to prove that the quality, character and degree remain unchanged. As noted above, plaintiff failed to show any objective intent to use the entire property for gravel mining. The area devoted to the gravel pits at the adoption of the 1956 by-law was limited to the approximately five acres of cleared area in the southernmost portion of the property [See Exhibit no. 23]. Plaintiff's current day operation far exceeds the use as it existed in 1956. Lloreover, 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." Chuckran, supra, at To the contrary, the Town has shown that the surrounding property owners have bome 11 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 Towtt 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. ,4nthony, 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. _tifurphv, 320 Mass. 207, 210 (1947). The safety and welfare benefits conferred by zoning by-laws enure to the public, and "(thatl, 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 of N. Attleborough, 353 Mass. 671, 675 (i 968). Plaintiffs first argument must therefore fail. 13. Plaintiffs second argument is that if the zoning by-law excludes the expanded gavel 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 Cin•..•438 U.S. 104 (1978); Nectow v. City of Cambridge, 277 U.S. 183 (1928); Kilgour v. 12 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 miring, 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. CONCLtiSION For the above reasons, plaintiff is left with the right to mine that portion of the site appropriated to gravel mining as of 19-56. That area is best described as the southernmost five acres of the site shown as cleared land on Exhibit no. ':5. 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 I I ' f 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 1-5, 1999 A A ti � 1� ��.� ��- ,, � CI61'4C - E=TT1 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC., AFFIDAVIT OF Plaintiff, JAMES McDONOUGH V. IN SUPPORT OF COMPLAINT FOR CIVIL EMMETT F. GLYNN, RON S. JANSSON, CONTEMPT. GENE BURMAN, RICHARD L. BOY, GAIL NIGHTINGALE, ELIZABETH NILSSON, ) THOMAS A. DERIEMER, DAVID RICE, ) and KEVIN MINNIGERODE, as they are ) Members and Alternate Members of the ) TOWN OF BARNSTABLE ZONING ) BOARD OF APPEALS, ) Defendants. ) I, JAMES P. McDONOUGH, being duly swom, depose and say: 1) 1 have full knowledge of the facts stated herein and am competent to testify to these facts. 2) 1 reside at 111 Mockingbird Lane, Marstons Mills, Massachusetts 02648 with my wife and two minor children. 3) 1 am an abutter to the property located at 810 Wakeby Road, Marstons Mills, Massachusetts. 4) 1 testified in the trial held in the Barnstable Superior Court in April, 1999 involving Chris Keyes' appeal of the decision of the Barnstable Zoning Board of Appeals. After receiving a copy of the Court's decision, which I read as limiting Mr. Keyes' activity at 810 Wakeby Road to the removal of gravel in an area no greater than 300 feet from the southerly portion of the property off Wakeby Road, I was hopeful that the barrage of noise, dust and other nuisance conditions would be eliminated and that my family could finally live relatively undisturbed in our home. Unfortunately, this turned out not to be the case. Even after the Superior Court decision, Chris Keyes continued to engage in a multitude of noxious activities throughout the property and on many occasions in close proximity to the homes of the residential property owners who testified at the Superior Court trial. 5) On or about July 15, 1999, at approximately 7:05 A.M., I was awakened by a loud machine noise which I later observed to be a large, white front-end loader operating in close proximity to the rear boundary of my property and at the far northerly portion of the property at 810 Wakeby Road. The front-end loader was operated until approximately 7:30 A.M. and then resumed again at 8:00 A.M. At approximately 8:15 A.M., I observed a pile of loam being loaded onto a dump truck, bearing the name "C. Keyes" being operated by an individual who I know as Chris Keyes, which truck exited the property. I again saw the front-end loader operating at noon. At 5:30 P.M. the front-end loader was operating at the portion of the 810 Wakeby Road property behind Ann Salas' home and I observed the front-end loader billowing dust. 6) The next day, July 16, 1999, at 7:15 A.M., the front-end loader was again operating at the northeast portion of 810 Wakeby Road. 7) Over the next two weeks, there were other instances where the front- end loader was operating in the early morning hours on.the portion of 810.Wakeby Road in proximity to my property. I also observed a dump truck bringing materials onto the site. P&0036WcdonMh affWaA 2 r 8) On August 16, 1999, 1 observed Chris Keyes operating a front-end loader on the north side of the property, behind my house. In my estimation, the activity was taking place more than 300 feet beyond Wakeby Road. I saw soil being loaded and processed in a screener. Similarly, on August 17, 1999, 1 observed ongoing loam processing where the screener was operating and creating a very loud noise. Diesel fumes pervaded my house. 9) On August 18, 1999 at approximately 7:55 A.M., I observed that a new screener had arrived, having seen several other trucks arrive earlier. subsequently left my home and while I was driving west on Cotuit Road and proceeding into the intersection with Quaker Meetinghouse Road, I saw Chris Keyes driving south on Quaker Meetinghouse Road in a truck which bore the name of his landscaping business. To my surprise, I then witnessed Mr. Keyes drive through a red light without stopping and then cut me off while he turned right onto Cotuit Road, thereby placing his truck directly in front of my vehicle. Mr. Keyes then leaned his torso out of the driver's side window, and he gestured at me using his middle finger. My nine and ten year old children were present with me in the car at the time. At 6:00 P.M. that same day, the screener was still being operated. 10) On August 19, 1999, at approximately 7:20 A.M., I was awakened by the sound of the screener. There did not appear to be any materials in the screener. At about 8:15 A.M., I observed what I believe to be the first load of dirt go into the screener. I observed loam being screened on the northwest portion of the lot. I then observed the dirt being unloaded to the north of the same area on 810 Wakeby Road, near my property, where a new hill of loam was being created. When I arrived at home later that afternoon, at approximately 4:15 P.M., loud noise was emanating from the front-end loader and there were clouds of noxious smoke. Between August 25, 1999 and August 30, 1999, there was similar processing of loam, with all its attendant dust, noise and vibrations, taking place on the northerly portion of the lot. 11) On or about September 16, 1999, Mr. Keyes erected a chicken coop in close proximity (approximately 30 feet) of my property line. At the same time, he began screeching "cock-a-doodle-doo" at me while operating a "bob cat." 12) On September 23, September 24 and September 25, 1999, a front-end loader was operating in proximity to residential abutters. The front-loader was noisy, creating dust and was spewing diesel fumes. 13) On September 23, 24, 25, 27 and 28, 1999, 1 also observed the front- end loader loading soil from what appeared to be a newly-created loam pile into a dump truck on the northerly portion of the 810 Wakeby Road property. 14) On October 7, 1999, at approximately 11:05 A.M., I observed a front- end loader loading loam from the new loam pile onto a dump truck, which pile was in the northerly portion of the 810 Wakeby Road, Marstons Mills. At approximately 3:20 P.M., I observed another load of loam being loaded into what appeared to be the same dump truck. 15) On October 8, 1999, 1 twice observed a front-end loader loading loam into a dump truck bearing the name T. Keyes." I then saw said dump truck exit the premises onto Wakeby Road. P&,00WAabX h affWavtq 4 16) On October 9, 1999, 1 heard the screener operating and observed that the loam pile was replenished. 17) On October 12, 1999, 1 heard what I believe to be the front-end loader operating in the area that I have referred to as the "deep pit." At approximately 12:30 P.M. I saw an empty dump truck enter the premises and then observed the same dump truck leave full of loam. At approximately 2:30 P.M., I again heard machines working in the "deep pit." At approximately 3:00 P.M. I observed the front-end loader loading loam in a dump truck bearing the name T. Keyes." 18) On October 13, 1999, the screener began running at approximately 8:30 A.M. and continued operating until approximately 4:00 P.M. 19) At approximately 9:00 A.M. on October 15, 1999, the front-end loader began loading soil from the loam pile onto a dump truck bearing the name of T. Keyes." During the course of the morning, I observed several separate loads being loaded by the front-end loader into said dump truck. Similarly, on October 19, 1999, 1 observed a front-end loader placing loam in the dump truck with the name "C. Keyes" on it. 20) At approximately 6:05 A.M. on the morning of October 27, 1999, 1 was awakened by the sound of loud banging from the vicinity of the property where the junk vehicles were located. 21) On October 29, 1999, a front-end loader was again loading loam in the dump truck with the name T. Keyes" on it. At approximately 10:40 A.M. on that date, I observed a cement mixer in the vicinity of the chicken coop on the lot line between my property and 810 Wakeby Road. Asa° 3&md°"°" h affidavq 5 22) On November 2, 1999 at approximately 11:19 A.M., I saw a white bus towing a large trailer filled with some type of soil or organic material enter the "deep pit" on the northern end of the property. At approximately 11:26 A.M., observed the empty trailer exit the pit. 23) The activity of the front-end loader working in the "deep pit" continued on November 4, 1999 and November 8, 1999. 24) My family and I have been subjected to loud noises from the screener in the early morning hours as well as fumes and dust from the front-end loader, used in the manufacturing and processing of loam on the property. There has also been large-vehicle activity in the northerly portion of the property surrounding the removal of the loam piles created from the loam manufacturing operation. I look forward to the time when my family and I can enjoy my property without the intrusion of noxious commercial enterprises taking place in close proximity to my home. Signed under the pains and penalties of perjury this 12th day of November, 1999. James P. McDonough I P&00361rrxdonogh affidavit] 6 EXHMrr 2 :i COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. NO. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC., AFFIDAVIT OF - - -Plaintiff; - ANNE-SALAS IN V. SUPPORT OF COMPLAINT EMMETT F. GLYNN, RON S. JANSSON, FOR CIVIL CONTEMPT. GENE BURMAN, RICHARD L. BOY, GAIL NIGHTINGHALE, ELIZABETH NILSSON, ) THOMAS A. DERIEMER, DAVID RICE, ) and KEVIN MINNIGERODE, as they are ) Members and Alternate Members of the ) TOWN OF BARNSTABLE ZONING ) BOARD OF APPEALS, ) Defendants. ) I, ANNE SALAS, 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 reside at 145 Mockingbird Lane, Marstons Mills, Massachusetts 02648. 3) 1 am an abutter to the property located at 810 Wakeby Road, Marstons Mills, Massachusetts. 4) After receiving a copy of the Court's decision in the case involving Chris Keyes' appeal of the decision of the Barnstable Zoning Board of Appeals. + I was optimistic that I would once again be able to enjoy the quiet of my home and neighborhood. Unfortunately, the assault of noise, dust and commercial "Ns"affidavd 1 J activity taking place at 810 Wakeby Road, Marstons Mills and behind my home has not abated in response to the Superior Court decision. 5) Specifically, while I have periodically taken the time to record the date and time of type of commercial activities that I have observed taking place at the northerly portion of the property near my home;-there have been many days where I have had not had the time to actually write down what I observed. 6) On July 7, 1999 at approximately 7:15 a.m., I heard sounds and then observed a bulldozer, approximately fifty yards behind my property line, digging deeply. The smell of exhaust was heavy and the noise was very loud. Similar activity was taking place on the afternoon of July 8, 1999. 7) On July 9, 1999, activity began behind my house at approximately 7:20 a.m. and continued all day. I was subjected to horrific smells, to banging and to the incessant beeping of trucks backing up, because they were dumping and moving soil in close proximity to my property line. The screener was operating as well. The same type of activity with its deleterious noises and odors continued on July 10, 1999, July 14, 19.99 and July 16, 1999, at which point I left for a week's vacation. 8) On July 27,1999 at approximately 7:10 a.m., I observed soil being loaded into a truck behind my house. A bulldozer was facing my house and digging closer to my house. These activities continued on July 28, 1999, July 29, 1999 and August 2, 1999. 9) In August of 1999, 1 observed that an area that Mr. Keyes had previously excavated behind my house has been filled with stumps. I am worried [9au Wsalas affidavit 2 U I about a fire hazard as there have been other fires behind my neighbors' houses in areas where Mr. Keyes has dumped debris. 10) In September of 1999, 1 observed about 18 or so junk trucks, vans and cars lined up around the edge of the excavated area behind my house. It is my understanding that the variance the Giffords received from the town which allowed them to conduct a salvage operation, had conditions which included a requirement that the junk cars be maintained in an area of the lot close to Wakeby Road, which area was to be screened on all sides by trees. It was only after the court issued its decision that junk cars were deposited for the first time close to my property line. 11) Throughout the fall, the activities of the front-end loader and the screener have continued taking place behind my home. When my windows are open, the smell of diesel fuel permeates my house. I observe from my windows, clouds of dust and fumes wafting through the remaining trees. Certainly being outside in my backyard is like being in the midst of an urban construction project.' This severely limits my use of my backyard where I am subjected to the din of numerous trucks, "beeping" while backing up, the thunderous banging noises associated with the dumping of materials, the crunching and cracking of trees being felled and the deafening sound of the screener. Now that the leaves have fallen, the view from my house is a huge pit filled with trees and tree stumps and a junkyard of derelict trucks, vans and cars lining the pit. 12) There has been no appreciable decrease in activity since the court issued its decision. In fact, as I noted above, Mr. Keyes has actually P"361saW affidavit 3 commenced new activities in close proximity to the residential abutters and I am very concerned that Mr. Keyes will continue to engage in a campaign of intimidation against us. I am frankly discouraged at the prospect of the town ever being able to enforce the court's order against Mr. Keyes. Signed under the pains and penalties of perjury this 12th day of November, 1999. Anne Salas P84036lsalas a(6daA 4 r� EXHIBIT 3 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC., AFFIDAVIT OF BUILDING Plaintiff(s), INSPECTOR, THOMAS PERRY, V. -- IN SUPPORT OF COMPLAINT FOR CIVIL CONTEMPT. EMMETT F. GLYNN, RON S. JANSSON, GENE BURMAN, RICHARD L. BOY, GAIL NIGHTINGHALE, ELIZABETH NILSSON, ) THOMAS A. DERIEMER, DAVID RICE, ) and KEVIN MINNIGERODE, as they are ) Members and Alternate Members of the ) TOWN OF BARNSTABLE ZONING ) BOARD OF APPEALS, ) Defendants. I, THOMAS PERRY, being duly sworn depose and say: 1) I am employed as a Building Inspector for the Town of Barnstable. I have been employed as such since November of 1996. 2) On or about August 16, 1999, 1 received a.telephone call from Kathy Maloney, Office Assistant for the Town of Barnstable Building Department, who indicated that the Building Commissioner, Ralph Crossen, wanted me to investigate whether the screening of top soil was taking place at the premises located at 810 Wakeby Road, Marstons Mills, Massachusetts. 3) After driving through the entrance to the premises of 810 Wakeby Road, I observed a front-end loader in the northerly portion of the parcel, close to Mockingbird Lane, which front-end loader I observed loading dirt into a screener. I have identified the area with an "x" mark in the attached photograph P8-0036/pertyaft l I i which was produced by the Town of Barnstable's Geographic Information System (G.I.S). 4) When I began to drive to another portion of the site, the operator of the front-end loader approached me in the vehicle. The operator emerged from the front-end loader and advanced toward my car. When the operator reached my car, I handed him my business card and told the operator that the Town of Barnstable Building Commissioner, Ralph Crossen, had asked me to investigate possible zoning violations on the property. The operator barked at me that he had every right to do what he was doing and ordered me "...to get the f... off my property." I then drove away. The operator followed me in the front-end loader at a very high rate of speed and did not stop until I was close to the entrance of 810 Wakeby Road. 5) On or about September 20, 1999, 1 was called by Chris Keyes who stated that he was moving a shed from one location on the property to a new location very close to the McDonoughs' property line. Keyes stated that he intended to use the shed as a chicken coop which he indicated that he understood he was permitted to do under zoning. Keyes asked me to come by to take a look at the shed. On or about September 21, 1999, 1 met Chris Keyes at 810 Wakeby Road. Mr. Keyes stated that McDonough has been his worst neighbor and that he was hoping to acquire the loudest rooster he could find. . Keyes again stated that he was aware that agricultural uses were exempt and that he was also thinking of acquiring livestock, such as cattle. P8M36/pe W 2 :a a Sworn to under the pains and penalties of perjury this day of November, 1999. THOMAS PERRY, Building Inspector, Town of Barnstable - [98-00361perryaH C, i , t F �7' EXHIBIT 4 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC., AFFIDAVIT OF Plaintiff(s), BUILDING COMMISSIONER, V. RALPH M. CROSSEN, IN SUPPORT OF COMPLAINT EMMETT F. GLYNN, RON S. JANSSON, FOR CIVIL CONTEMPT. GENE BURMAN, RICHARD L. BOY, GAIL NIGHTINGHALE, ELIZABETH NILSSON, ) THOMAS A. DERIEMER, DAVID RICE, ) and KEVIN MINNIGERODE, as they are ) Members and Alternate Members of the ) TOWN OF BARNSTABLE ZONING ) BOARD OF APPEALS, ) Defendants. I, RALPH M. CROSSEN, being duly sworn depose and say: 1) 1 am employed as the Building Commissioner of the Town of Barnstable and have been employed as such since August of 1994. 2) In my role as Building Commissioner, I have become familiar with the property located at 810 Wakeby Road, Marstons Mills, Massachusetts.. It is my understanding from his representations that Chris Keyes is the owner of a business operating at 810 Wakeby Road. This business is known as Gifford Brothers Sand and Gravel, Inc. The property is located in a.RF (residential) zoning district where a-single-family residential dwelling is the only principal permitted use. 3 On October 22, 1997, 1 wrote to Mr. Keyes and indicated that "... I have determined that the use of your property for a gravel pit, processing of fill, [98-0036/ra1paff2J 1 the screening of fill, depositing of fill, brush and clippings, or any other similar use [is] in violation of Section 3-14 of the Town of Barnstable Zoning Ordinance. These uses must immediately CEASE AND DESIST." 4) Following an appeal by Chris Keyes on behalf of Gifford Brothers Sand and Gravel, Inc, the Zoning Board of Appeals upheld the cease and desist order, which I issued and which is referred to in paragraph 3 above. 5) Upon the filing of an appeal in the Superior Court, under G.L. c. 40A, §17, a bench trial was held in the Barnstable Superior Court and a decision dated June 25, 1999 was rendered which held as follows: 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. 6) Since the Superior Court rendered its decision, my office has received complaints concerning the fact that Mr. Keyes was continuing to engage in a loam processing operation on site in close proximity to the abutting residential properties on Mockingbird Lane. In response to said complaints, on or about August 16, 1999, 1 caused Thomas Perry, a building inspector, to be dispatched to the site at 810 Wakeby Road. 7) On or about the afternoon of August 16, 1999, 1 returned two telephone calls I had received from Chris Keyes. Keyes apologized for being [98M3&ra1paQ) 2 rude to one of my inspectors, Tom Perry, who had been undertaking an investigation on the premises located at 810 Wakeby Road. Keyes explained his inappropriate behavior by stating that he had mistaken Mr. Perry for one of the residential abutters. 8) In the course of telephone conversation, Chris Keyes admitted that he was screening loam and bringing materials into the portion of his lot furthermost away from Wakeby Road and in close proximity to the residential abutters. Keyes stated that he disagreed with the Judge's ruling regarding the limitation of the area and activities he was permitted to engage in at 810 Wakeby Road. Mr. Keyes concluded the conversation by stating that he did not intend to stop doing what he had been doing on the site and that he was going to continue his legal battle. Sworn to under the pains and penalties of perjury this 12th day of November, 1999. RALP M. CROSSEN, Building Commissioner, Town of Barnstable [98-00361ralpaff2) 3 SIT 5 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC., AFFIDAVIT OF Plaintiff, DETECTIVE V. PAUL EVERSON IN SUPPORT OF EMMETT F. GLYNN, RON S. JANSSON, COMPLAINT FOR GENE BURMAN, RICHARD L. BOY, GAIL CIVIL CONTEMPT. NIGHTINGHALE, ELIZABETH NILSSON, ) THOMAS A. DERIEMER, DAVID RICE, ) and KEVIN MINNIGERODE, as they are ) Members and Alternate Members of the ) TOWN OF BARNSTABLE ZONING ) BOARD OF APPEALS, Defendants.) I, Detective Paul Everson, 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 hold the position of detective in the Barnstable Police Department. I have been employed by the Barnstable Police Department for approximately 20 years. 3) On or about September 24, 1999, 1 met with Barnstable Town Attorney Robert D. Smith concerning the Gifford Brothers Sand and Gravel, Inc. case and was asked to investigate complaints that Gifford Sand and Gravel Inc. 9 was not complying with the Findings of Fact, Rulings of Law and Order of Judgment, dated June 25, 1999 issued in Gifford Sand and Gravel Inc. v. Zoning Board of Appeals, Town of Bamstable, Case No. 98-87. As a result of this [9&W3&eversomffldava) 1 i meeting, I conducted an investigation into the activities being undertaken at the property located at 810 Wakeby Road, Marstons Mills. 4) As part of my investigation, on or about September 25, 1999, 1 spoke with Patricia Gifford of 800 Wakeby Road, regarding the operation at the location. Patricia Gifford relayed to me a history of the property as it pertained to her family. Patricia Gifford stated that she was no longer involved in the daily operation of the property. However, she stated that she retained an ownership interest in the property. According to Mrs. Gifford, whatever business enterprises are being undertaken at the site located at 810 Wakeby Road, Marstons Mills are being initiated and run by Mr. Keyes. 5) On September 25, 1999, 1 also interviewed a Mr. James P. McDonough of 111 Mockingbird Lane, Marstons Mills. Mr. McDonough showed I i me where his property abuts the rear of 810 Wakeby Road. Mr. McDonough showed me where the property of 810 Wakeby Road had been cleared up to his property line as well as the adjacent abutters. 6) On October 12, 1999, 1 viewed the processing of what appears to be a loam pile on the 810 Wakeby Road property from the property of the McDonoughs. 7) On or about October 15, 1999, 1 observed an 18-wheel tractor trailer, Child's Trucking, South Dennis, transporting materials to the 810 Wakeby Road property. 8) On October 26, 1999: 1 again met with Patricia Gifford at her home at 800 Wakeby Road. At this time, I observed a front-end loader working just [98-0 WeversonaffldaAl 2 r behind the Gifford residence. The operator of the machine was actively screening and processing various piles of loam and earth, loading it into a green sifting machine, which mechanically processed this material. Patricia Gifford showed me the pile of concrete and tar dumped on the 810 Wakeby Road, Marstons Mills, MA property by Child's Trucking and Deco Trucking on October 14, 1999 and October 15, 1999. 1 also observed the Sky Frog Tree Service truck and trailer enter the premises and deposit a construction trailer. 9) On or about October 27, 1999, 1 spoke with Mr. Charles Childs, owner of Child's Trucking. I asked Mr. Childs about the dumping of debris on the property at 810 Wakeby Road. Mr. Childs, upon checking his records, reports to me that he did have a truck working a "sub-contract" for RH Construction on the 1 dates in question. Upon contacting the driver who operated the truck on these dates, Mr. Childs confirmed that his truck did deposit materials at 810 Wakeby Road. The driver, a Mr. Warren Crooker, confirmed that he picked up three loads of concrete and tar from a Falmouth construction site and dumped them at 810 Wakeby Road, Marstons Mills. RH Construction is run by Randy Harnois. Mr. Crooker further adds that the demolition of materials came from a site on Bridge Street in Falmouth. Signed under the pains and penalties of perjury this ` day of November 1999. tec , e Paul Everson Tow of Barnstable Police Department (98-003VeversonaffldMI 3 LEGAL DEPARTMENT, TOWN OF BARNSTABLE TO: RALPH CROSSEN, Building Commissioner FROM: RUTH J. WEIL, Asst. Town Attorney RE: Gifford Bros. Sand & Gravel, Inc. vs. T/_V�n of Barnstable C.A. No.: 98-87 OUR FILE REF: #98-0036 DATE: November 18, 1999 �: --------------------------------------------------------------------------------------------------------- The trial on the civil contempt complaint in the above-entitled action is scheduled for Wednesday, November 24, 1999 at 2:00 p.m. I am enclosing a copy the �L Complaint for Civil Contempt and the appended documents. Please contact our office at your earliest convenience so we may set up a time to review your testimony. r RJW/tmc Attachments f [98-00361conhem]. 1 s �,aucuta�ut�e of �s��ri�tsptt� BARNSTABLE, ss. SUPERIOR COURT No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC. VS. ZONING BOARD OF APPEALS, TOWN OF BARNSTABLE CIVIL CONTEMPT SUMMONS To the above-named plaintiffs: Gifford Brothers Sand and Gravel, Inc., and Chris Keyes Pursuant to Mass. R. Civ.P. 65.3.and the Honorable Gary A. Nickerson, you are hereby summoned to appear before the Superior Court, for Barnstable County, at Barnstable, in the second session without jury on November 24, 1999, at 2:00 p.m. 1. Holding a hearing on the merits of the Complaint for Contempt, and 2. It is further ordered that Chris Keyes as President and Treasurer of Gifford Brothers Sand and Gravel, Inc., is directed to appear in person at said hearing. If you fail to appear, Judgment of Contempt by default may enter against you and the Court may order that a capias issue for your arrest in order to bring you before the Court. Witness, SUZANNE V. DEL VECCHIO, Esquire, at Barnstable, this seventeenth day of November, 1999. Clerk LEGAL DEPARTMENT, TOWN OF BARNSTABLE INTER OFFICE Memorandum Date: November 3, 1999 TO: RALPH CROSSEN, BUILDING COMMISSI ER FROM: RUTH J. WEIL, Asst. Town Attorney RE: Gifford Property- Prior ZBA permits Our File Ref: #98-0036 0 -------------------------------------------------------------------------------------------------------- As per our previous discussions, attached please find the prior permits issued by the ZBA regarding the above property. RJW [98-0036/artmem]1 1 i. . 0 TOWN OF BARNSTABLE ' VMN OF BARNSTABLE Board of Appeals i i ; i i Petitioner i Appeal No. 1 •29 1964 FACTS and DECISION Petitioner !t Z4i!'!C.t�,a'R f rr m ---- filed petition on nth 1 , requesting a variances for premises at fit, in the village of - � , IZ• age 's d p , adjoining premises of f o & 3=7dW r `A for the purpose of --'"dfte for asl '. ° Of VW kloa &-A OtAXMge o4 Ucpd parts ' ------------- 1 Locus is presently zoned in —fte1dianCd V2 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 i copy of which is attached to the record of these proceedings filed with Town Clerk. it A public hearingb le y the Board of Appeals of the Town of Barnstable was held at the Town Office Building, Hyannis, Mass., at N15 to . P.M. Alo�il ? td � :p, 1 upon said petition under zoning by-laws. Present at the hearing were the following memberi: R04L"T .J. rTdXlr,,AT R. a4L1~it iR Chairman �� to IMP TOWN OF BARNSTABLE BOARD OF APPEALS VASIL'T NOTICE OF PUBLIC HEARING UNDER ZONING BY-LAWS Appeal No. 19�"� April 7 , 196 4 / A-ed � Wi l 1�nemJ en Z. Dubb A ice D. Jaeksan,�Lorig a. Janes. L. A Ruth R. A non L. Baker. d�ge A. Stackhouse Being all persons deemed interested or affected by the Board of Appeals, under Sec. 15 of Chap. 40A of General Laws of the Co monwealth of Massachusetts and all amendments thereto, you are hereby notified that �L. THATCHER GVMRD has appealed to the Board of Appeals from a decision of the Building Inspector and petitions for a Variance to permit use of premises for salvage of vehicles and storage of used parts; premises being located an Wakeby Road. Marstons Millet in a Residence D3 area. A public hearing will be given on this petition, in Tom Office Bnildin8 on April 230 1964 at 3215 P.M. You are invited to be present. By order of the Board of Appeals, (15 p:oors please) R04e9 J. BroekwaY , Chairman. fA April 9 and R. Ralph Horne Roland T. Pihl 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 6 Thatetar Giffcrdp tha Petitioner, was represented by Joseph Beeeber, Fsgo Mr 3eecher stated that the Petitioner was eseking s Variarce to move an existing rstomobilo parts salvage business to a now location. The location in which tha petitioner proposes to locate his business is in a Gravel pit noa.^ wakeby Road in Marstons :+lillse The area is DOW zoned ac Residence DD-3 calcae The buninose :;hick tte petitioner presently operates in Sentuit has become an eyesore to the coaruniry and the petitioner feels' that it would be in t1v boat inter-osts of al corcerned to move the business to an area well away from the travelled highvay. It is ti:s opinion of many people that the situa ion sae it now, Wdsts creates hardship not only Par the villaV of Santuits but also for Cotuite Mrs Beecher eta41-ed that the proposed location is about 1000 feet from the road and is boat In a hollow with a screen of trees surromding the front Dart of the late He stated tha~ Stored vehicles would not be vielblo from the road. 2lre Beecher furtrsr stated that the phyaleal condition or the proposed location was such that it could not be used for residential purposes• To deny the owner use of th land for any purpose would result in a severe hardship to hime 12 people either spoke or were recorded in favor of petitioners request and 6 People spoke in Op-pas itione It was the opinion cf the Board that the exis tang automobile parts salvac operation in its present location, has created a serious problem for the enti-e neighborhood. The location of salvage yarrda is a difficult problem in any area of t:a town• Hover, it' is important that they be placed in areas taafta away from the well-travelled hiGimays and i&ere the daj to day operations may be screened from wear as muou as possible. The location for vich the petitioner seeks permission to uses seems to tit those• It is important to note that persons who om. property near the proposod location spoke in favor of grc�nting this request as the lesser of two evils. The Board further found that oaring to cond3Lions especially affecting this parcel, but not affectitE- generally tv� zoning district. in wt3ich it is located, a literal enforcement at the By-Lain would, involve substantial hardship to the petitioner and further tha relief could be granted without nullifying or subetant ially derrogating frGM th intent .and..purpose of the zoning by-last. The Board unan sly votod to grant = petitioners request , subject to the following condition s .. Thht the use of th lard . in the new location be restricted entirely to that area behind the screen trees. s That only one building may be constructed for use in connection with tree ss. vsgQ yard and such bu37dbg must be located behind t1* screen of trees. Bo tre©s are to be removedf ""L�at the present location at Sr3ntuit be oamplsts cleared of all material with n a :9 asonable tit99 Distribution:— Board of Appeals Town Clerk Town of Barnstable Applicant Persons interested Building Inspector � Public Information By C 0 44 sp a L°` of 3% 1► Ancc%.►s�tR� +� Co �� \ 4` �• /16 I � �• ��. � � � Mgt \ 4� V � \ 0 1 I.Izac- 11 \ Y RED: 9-1 w-» \ c o, v• AC I 40.Y0v V,t y �♦ *GV \ s� O � ♦ I O \ IV,\ v1 0 3.2 3-1 © \ I.00AC 3'3 4,is qc e I OOAC \ d 2 ti \ ^ ' .06 AC ^. 3-4 � o0 \ b I.00AC 3.5 \ PIS., k I.00AC \ ' O \�So 175 'To 150 3 3 I 0 \ M q 0 )3.5 l - s� ✓ 1.18AL .0O -00 AC I.00AC c 1.02AC_ u b ro V N r . '- 3 0ti5 q �F p MP Or TOWN OF BARNSTABLE PETITION FOR VARIANCE SPECIAL PERMIT UNDER THE ZONING BYLAW To-the Board of Appeals, Hyannis, Mass. Date _ w March 23 1964 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:. Main Streetp, Santuit (Full Name) (Winter Address) Owner: __ Same (Full Name) -(winter Address) Tenant (if (Full Name) /[L 5 (Winter Address) 1. Location of Premises Wakeb Road, Newtown- north side_ near town linl&. (Name of Street) (What section of Town) 2. Dimensions of lot ��_ _ ____»_. __ _30C+._ . Area 23 Acres __ (Frontage) (Depth) (Square Feet) 3. Zoning district in which premises are located_ RD _____._ __•_____._. _.-_ .__ __ _ _____ _ j 4. How long has owner had title to the above premises? _ �1 "5.._...... .3ms.t...__..... . . _ 5. How many buildings are now on the lot? _ r.__..__.-.•-..__ 11Ae under c.S2IIatrucli2n _ ✓' 6. Give size of existing buildings __L�`" '�� _- .» —»» -• Proposed buildings _._ _ ..._ -_-•••_ ___•• ___-_- - --- ----- 7. State present use of premises —_ tee}--fit-•pondering x't�ad --_—_----_--•- 8. State proposed use of premises ___ 1~_ts•-salvage under license. _4EaMjly baaiau 9. Give extent of proposed construction or alterations: _ _ ..._. _ ...None 10. Number of living units for which building is to be arranged None 11. Have you submitted plans for above to the Building Inspector! _ No 12. Has he refused a permits _ _ _. __...__..._._ _ »._ _ _._ ._ _.._.. Yes.-� 13. What section of zoning by-law do you ask to be varied f _Rp_3 and Sec. Q_4. The rorosed area is about one thousand feet 14. State reasons for variance or special permit: _..�......P. _........__.... _ s »�fry,� g�;s_g�g�ently abutted �a� gravel fit the proposed location s in &jaDl aW,__m•= nw•Eenty, five feet below the upland in front and is screened by trees completely from the road. No storage or work will v1s le -----Trom'Effie FO M—g—TIo aatlo`n`has no practical-*VX1 t0 ver`for-7-usidenttal use, and non-use presents a severe FiarWd»sFiiptotfie`owner. Respectfully submiuerl a1. ,received li Petition Y . .�.._.._._...___"�.�_._.._..__._.._..4/,(Address) �!�-4� Hearing date'set for _���L..._.........._..._...y... 19��2,/.._ PLEASE SEND ALL CORRESPONDEN E T0: Filing fen_ f_ �C ' re-q�fired with this petition. m%-.!. .urm may also be used for ,appeals, Joseph H. Beecher, Attorney foyer, 149 Main Street Hyannis, Mass. I The following are the names and mailing addresses of the abutting owners of property and the name and address of the owner across the street, according to -the records in the Assessor's Office at the date of this plication: 1 � IL k 0-4-16L L * L4t• . (R42Z '�C�fjlrt� 1 /YY! C S ' EN r Verified by Assessor's Office Assessor There must be submitted with the within application at the time of filing a plan of the land, in duplicate, (or two prints) showing: 1. The dimensions of the land. 2. The location of existing buildings on the land. 3. The exact location of the improvements sought to be placed on the land. Applications filed without such plans will be returned without action by the Board of Appeals. s C i SanEuit golf l.our�e and Jinn OLD KING'S ROAD COTUIT, MASSACHUSETTS TEL. GARDEN 8-2083 8-6002 ari cvA4� Cu�. , Irf . CaAA Ile t V � t; er i _: .• -_" - ow w �rim, AKW- jw wk �r�'►f' r-- , T' +l' �'r�•,' ��� gip:�. a. n .� � ,i1, I��r, i�� erg°• �_,�/y t, �' ..� is• .. - ..� _ Rc c'J �_• .�._. I" JAMES A. BURBANK MARSTONS MILLS CAPE COD, MASSACHUSETTS Ax fR(A C,LAt..J- tot oqL4 �.z,,at" 0- R E COPY TE T TOWN OF BARNSTABLE Board of Appeals �1lirl4,�,�+f..-Gib'•1F4A�-..�-••1►#A�3F1+�> �:-•61��FORD et�tioner Appeal No. _.1.9694 'v. 1969 i FACTS and DECISION Petitioner Will-lam Gifford & 1► ftard GS�$q� � ..._...._...._. ...............__...._..................._...........:....................................... petition on requesting q�;a iance-permit.for premises at ...._.Wakeby Road _ ...... in the village of adjoining premises of + � t....jrr....: 8 'y ' ^�t3._jr......&...JWt$A...-R. Mi.l-Hams,. Lorink.:..Joue®,....11arald....Jones.,...... .......... for the purpose of 032.tad,21131�-.._ ie t3.8�8Y4 ....1:•G....V:-'t"*...the....Zoning.....by—law....#. U.-Path extension of A non—conforming use by the construction of a building and....to,....Uuclu e....the.....0414..•..of....uso4....auto....parts...mad....�coud....ha�...v®3�iclae, Locus is presently zoned in a,._.t.gJd0uC4...D-3. &r.04......_............_................................_................W................. _ . 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 ..... •3... __.___ P.M. _ 1969, upon said petition under zoning by-laws. Present at the hearing were the following member&: RobertE. O'Neil Jean Bearse .Buford�CR.��4.k�.._.__.. __......_......_...�...._.................__.............................._ _........._.__..__.._........._...................................._..... Chairman f ' 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 .............___ ._._...___..._ _ ._ .. ._...__a__._...____.._._ _ 19 ------- the Board of Appeals found ,The Petitionere were represented by John P. Curley, Jr. ,Rack. The Attorney stated that the Petitioners were seekingmiselon to extends anou--co o use by �asitiructlah a build � for the s`alo of _u8ed aU * parts and a4co td Ltd vehieles. Mr. Curley stated that the orlainal Use Was OWMted by the Hoard of' Appeals in 1964. The purpose of the new building is to twee salvage- able parts froW io rs and to: sell those parts .off► the ealses. l} will' be necea0ary for the Petitioners to secure a different type salvage 1*0ease, but tbla would be dependent on the $rant- of a pem it by the rd of Appeals* The existing building �reuld be r Vod� and the new building 3U:' a 30.+* would be con— structed. Mr.. Curley fart-bor stated that the Petitioners" own appro lsaatoly 141-16 acres and that the operation of the salvage ard would be locatod in "tlie al le of the parcel surivmde4 wooO an three aided and the power- lino on the back. It was the opinion of the Board that the extension requested xaa not unreasonable, for a salvage yard is thla location, and the tntu#t of the PetlttoneFs is to have a larp r but.lding to carry . their businese. Because. *I the large acreage owned by the PpUtioneral, which surrounds the salvage yard operation, the ABoard tool® that 1t Is not detrle= atel' to the neighborhood. The Weird u uf=u®ly voted to grant a Spec'.al Petult for the cos- str lictlon of a buildingto: .b9,V8ed fo:r, the. storacgo sale of used auto pars 404 eaaosd h and Vehli6leis to WilliaM.. 0IffOrd, �ta�rd �Vt; ford! and eth Bo�,thel �te��t;�� to be reet�cts�ct to that pe�9 04 �t time t.eh tie 0atlti6. the Tenant' 10414 ,404 'P P of the present 10 sare pareel. TUO 499t810a aw a 460'1919a W,AW 21# 1969 4ad filed With tho Vow lcliik on a 1969 Distribution:— Board of Appeals Town Clerk Town of Barnstable Applicant Persons interested Building Inspector Public Information By Board of Appeals Chairman _4w .r4 RUE COPY ATTEST i BASBSTABLS, MA88. 9�0 ,639. 0 MAY Ark TOWN OF BARNSTABLE PETITION FOR VARIANCE UNDER THE ZONING BY-LAW SPECIAL PERMIT To the Board of Appeals, Hyannis, Mass. Date ....Feb 19 _ 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. M.as »sachusetts » _ „.......... ..„.„........................„»..„ ......... (Full'Name) (Winter Address) Owner: _..:...._.........William Gifford...4:nd..X .4;r.d .Qjf.,f.a d,..................5an .t.,.... ................. (Full Name) (Winter Address) Tenant (if any) _.......Kenneth Borthel Newton Roads Santuit, Massachusetts » (Full Name) „ (Winter Address) „ „ »» 1. Location of Premises.:..„Wakeby_Road „Newton. .Massachusetts (Name of Street) (What section of Town) „ Vt- 2. Dimensions of lot ........... .:; :p. .......»..................... ©..�.„ Area .........r��.... ..a...»7t(Froatage)"' (Depth) (Square Feet) 3. Zoning district in which premises are located......... ............„ ..» ....„ ....„....„...................»................................................„ 4. How long has owner had title to the above premises? ......................3....y..Q.ar2......................................................„................ 5. How many buildings are now 'on the lot? ..........„.»......019................. ..........................._...........„..„. _..._......................... „„.„. 6. Give size of existing buildings »...........................12 X.J.2....................„.... �ci Proposed buildings 3R...M.3.0...............„....„....................... 7. State present use of premises ...............Be:ral..Sal f....»...................». 8. State proposed use of premises Used auto,,parts,,,,,,,,,,,,,,,,,,,,, _ ....»� 9. Give extent of proposed construction or alterations: _onlyaddition of buildin� _ ............. 10. Number of living units for which building is to be arranged „.....,none 11. Have you submitted plans for above to the Building Inspector? ...»....». .-Y.Q.5.».....».»...._....».»__......_„.................. 12. Has he refused a permit? ................. _._................................................„............„_..»„.........._.....„..„...»»„.„.»».»».»:»»..»»..»..». 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 .....„..„..seek in the...generai». e. ,,.....it..»w ulsL_qutl>�.al y.....hP.-IP..-clean...lip blems of old cars in areas where there $hou,.,,d,,,n t„„h1a.&Pg „off your„pet t ocere has a fused hip and„is not to_work_work-full and this will enable „him::_„_ ......._. to run a business within his limited physical„capacity,,,, __The»„area will be „ »»c»ampletely_ nv„ stile,fromthe road„»al}d„»Kiil-A.9—t bs s gc itoo_,„arX,,g eat ,extent Lam it s...P. e s e nt...use ......».„...............»..»»...„..».».»..»......................_...............»...._........................................................„„............»...... „» Respectfully submitte (Signature .. ;».... »...»..._ ».._ »._ Petition received by ..........»„...» .......................».»» f (Addr s Hearing date set for „....................„.».....„..».».. .»„»»» 0 Filing fee of $20.00 required with this petition. * This form may also be used for Appeals. (Over) Pleanfe type or print only. The following are the names and mailing addresses of the abutting owners of property and the name and address of the owner across the street, according to the records in the Assessor's Office at the date If tiffs app t — , �����. ���Tl�� wi�i���s �� f�^�-� -• � 4�: ��/lam y 1�� J ®�Y,�S` /v0s � Rj>Verified by Assessor's Office /'� ./2 i Assessor There must be submitted with the within application at the time of filing a plan of the land, in duplicate, (or two prints) showing: 1. The dimensions of the land. . 2. The location of existing..buildings on the land. 3. The exact location of the improvements sought to be placed on the land. Applications filed without such plans will be returned without action by the Board of Appeals. � ' ti .,�. I J~- ��- I �f .. y S N��?z �„� •.°�'"`' .� TOWN OF BARNSTABLE BARNSTABLE. ' OFFICE OF TOWN ATTORNEY eSS o peg 367 MAIN STREET �Eo► � HYANNIS, MASSACHUSETTS 02601-3907 R013ERT 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 (508)790.6283 EILEEN S. MOLLICA, Legal Clerk June 9, 1998 FAX K(508)775-3344 Thomas McKean, Director Health Department, Town of Barnstable 367 Main Street, New Town Hall Hyannis, MA 02601 Ralph Crossen, Building Commissioner Building Department, Town of Barnstable 367 Main Street, New Town Hall Hyannis, MA 02601 Jack Gillis, Division Supervisor Consumer Affairs, Town of Barnstable 230 South Street Hyannis, MA 02601 Re: Chris Keyes, 800 Wakeby Road, Marstons Mills Our File Ref: #98-0036 Legal X-Refs: #95-0288; #98-0036 Dear Messrs. McKean, Crossen, and Gillis: As has been suggested in the past, E-mail is not an appropriate means of communication with respect to the details of matters going into litigation. Please use hard-copy on this matter, except with respect to routine communication. As you know, in order to be able to obtain injunctive relief, we must supply the court with affidavits signed under the penalties of perjury describing specifically the unlawful activity which is taking place at the present time, and which we desire the court to order the prospective defendant to stop doing. The only such evidence which is contained in your non-addressed memo to me dated June 4, 1998 is an apparent admission by Mr. Keyes to the effect"that he was- bringing in some cars, loading them up and sending them to be junked." Messrs. T. McKean, R. Crossen, J. Gillis June 9, 1998 Re: Chris Keyes, Legal Ref: #98-0036 Page -2- The reference to a "large number of vehicles throughout the property, most of them :.. not registered for use on public way ..." to.some extent logically corroborates the admission that Keyes is running a motor vehicle junk yard, but is not directly evidence of Keyes on activity apart of ownership of the land. In any event, this particular violation would seem to be, most specifically, a violation of§68 of c. 140 of the general laws which carries with it the potential of a fine of$1,000 or imprisonment for one year, or both. Because imprisonment under a state statute is a possible outcome, this would probably most appropriately be handled by the district attorney. The references in the June 4, 1998 memo to "a front end loader digging into a hillside, removing dirt and debris, and loading a truck which would take it to an area within the same property, dump it, and a back hoe would then pick up the dirt with the debris in it and place it in a screener to separate the dirt from the debris" do not seem by themselves to describe any violation of law that we know about. Coupled with the concept that the operation of a junk yard without a license is a misdemeanor with regard to which there is no specific authorization for injunctive relief, I must advise you that the likelihood of success in the course of action you suggest is virtually non-existent: If,there is more evidence of which you are aware in this matter, please be in touch directly. In closing, I would refer you to our memo of May 13'', 1998 (copy attached), which covers much of the same ground. Also enclosed is a copy of the complaint and accompanying affidavits in the McEvoy "Parking Lot" case which indicates the type of evidence it takes to be successful. We remain happy to help. Thank you. Sincerely yours, RDS:cg Robert D. Smith, Town Attorney Town of Barnstable cc: Thomas F. Geiler, Director, Consumer Affairs [98-0036Waltl l COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 93-1 BUILDING COMMISSIONER of the ) TOWN OF BARNSTABLE, and the ) TOWN MANAGER of the TOWN OF ) BARNSTABLE, ) Plaintiffs, ) COMPLAINT -vs- ) ) MAURICE M. MC EVOY, and ) ROSE ANN MC EVOY, Individually ) and as Trustees of the McEvoy ) Realty Trust, ) Defendants. ) INTRODUCTION 1. ) This is an action brought ( 1) under M.G.L. c. 40A, §7 to enjoin the Defendants from operating the business of open-air parking spaces in the Town of Barnstable in zoning districts where such uses ' are not permitted, and, (2) under M.G.L. c. 231A, to declare that operation of such open-air parking spaces without a license as required under M.G.L. c. 148, S56 is prohibited. PARTIES 2 . ) Plaintiff, the Building Commissioner of the Town of Barnstable, is the officer responsible for enforcing the zoning ordinance of the Town of Barnstable under M.G.L. c. 40A, §7. The Plaintiff, the Town Manager of the Town of Barnstable, is the licensing authority with respect to open-air parking spaces under M.G.L. c. 148, §56, and as chief executive officer of the said 1 town under its charter, is generally charged with the enforcement of all laws within the town. The Town of Barnstable is a municipal corporation organized under the laws of the Commonwealth, having its usual place of business at 367 Main Street, New Town Hall, Hyannis, Massachusetts 02601.. 3. ) Defendants, Maurice M. McEvoy and Rose Ann McEvoy, are the owners, either individually, together or as trustees of the McEvoy Realty Trust, of eight particular parcels of land in and around Pleasant Street and South Street in the village of Hyannis in the town of Barnstable, which parcels are being used or suffered to be used in various ways, as will be seen, in the illegal operation by the said Defendants as open-air parking spaces. Said Defendants have a principal place of business at 56 Pleasant Street, Hyannis, Massachusetts 02601. APPLICABLE STATUTES AND REGULATIOMS 4 . ) An attested copy of the zoning ordinance of the town of Barnstable is attached hereto as Exhibit "1" and made a part hereof, as is an attested copy of the town's zoning map which is attached hereto as Exhibit "2" . 5. ) The following subject parcels owned by the Defendants are all located in the PRD, or Professional Residential District: Assessor's Map 327, Lots 133, 134, 135, 137, 142 and 268. The remaining subject parcels owned by the Defendants are located in the RB-1 (Residential) Zoning District: Assessor's Map 327, Lots 121 and 122 . -Page 2- i 6. ) The operation of the business of open-air parking spaces is not a permitted use within the PRD or RB-1 district. 7 . ) Section 2-3. 1 of the zoning ordinance provides as follows: Conformance to Use Regulations: No building shall be erected or altered and no building or premises shall be used for any purpose except in conformity with all of the regulations herein specified for the district in which it is located. 8. ) Section 4-3.3 of the zoning ordinance prohibits signs which advertise any business which is not on the premises on which the sign is located. 9. ) Section 4-3.6 ( 1) of the zoning ordinance, only permits signs in the PRD district which advertise a business which is a legal use on the premises on which the sign is located. 10. ) Section 4-3.26 of the zoning ordinance requires that all regulated signs be specifically permitted by the Building Commissioner. 11. ) The Town of Barnstable accepted the provisions of M.G.L. c. 148, §56 by vote of its town meeting under Article 45D of the warrant for the annual town meeting called on March 8, 1966; an attested copy of the vote is attached hereto as Exhibit "3" and made a part hereof. FACTUAL ALLEGATIONS 12. ) On or about June 16, 1980, Maurice McEvoy was granted a special permit from the Barnstable Zoning Board of Appeals for 53 Pleasant Street in Hyannis which allowed Mr. McEvoy to change from one non-conforming (lodging house) to another non-conforming -Page 3- is use (commercial parking spaces with 68 spaces) . (See Assessor's Map 327, Lot 121; see Exhibit "LAST" which is attached hereto and made a part hereof. This exhibit, for convenience in repeated references, is attached at the end of this complaint and its other exhibits) . Said special permit was subject to several conditions, inter alia, that a private hedge should be planted and maintained along the entire northerly side of the parking spaces and further, that the private way abutting the parking spaces shall not be used for ingress or egress to the parking spaces nor should vehicles be parked anywhere on the private way. (Copy of special permit attached hereto as Exhibit "4" ) . 13. ) In support of Defendant, Maurice McEvoy's application for a special permit for sixty-eight open-air parking spaces for the premises located at 53 Pleasant Street (Assessor's Map 327, Lot 121) , he filed with the Barnstable Zoning Board of Appeals (Appeal No. 1980-30) on or about April 9, 1980, an affidavit and a list of uses of other properties located in the vicinity of 53 Pleasant Street. (Copy of affidavit and list of uses is attached hereto, respectively, as Exhibit "5" and Exhibit "611 ) . Included in the listed properties and uses are the following parcels located on Assessor's Map 327: Lot No. 122: Private Residence. Lot No. 133: Apartment House owned by Petitioner Six Units. Lot No. 134: Residence of Petitioner. Lot No. 135: Professional Office Building (Borowick, Thevenin, Spencer & Cape and Islands Counseling Service) . Lot No. 137 : The Pilot Apartments, Cottages, Rooms. -Page 4- 14 . ) In his 1980 submission to the Zoning Board of Appeals (Exhibit "6" ) , Maurice McEvoy identified only two parking lot (spaces) uses, to-wit: one found on Lot 138 which was listed as "Hilltop Furnished Cottages-John Moda Parking" (which parking lot was the subject of a special permit on Appeal No. 1975-51) , and the other on Lot 243 "Parking for Velvet Hammmer customers, " which lot was adjacent to Lot 151, the lot listed by Mr. McEvoy as being occupied by the Velvet Hammer. 15. ) On or about July 19, 1991, the Town Manager received a letter from a resident of the town, complaining that there were a number of open-air parking lots operating in violation of zoning on South Street, Pleasant Street and School Street, Hyannis, in the vicinity of the Steamship Authority docks in Hyannis Harbor. 16. ) The Town Manager referred this complaint to the Building Commissioner for the Town of Barnstable. The Building Commissioner's investigation revealed that commercial open-air parking for pay was not a permitted use in either the Professional Residential (PRD) Zoning District or the RB-1 Zoning District. In error, the Board of Selectmen had issued yearly licenses to several open-air parking space applicants in violation of the zoning ordinance. Unaware that the operation of open-air parking spaces for pay was not a permitted use in either the PRD or RD-1 districts until the Town Manager received the citizen's complaint, the Town Manager had himself issued licenses to several applicants for open-air parking spaces for the years 1990 and 1991, which lots did not comply with zoning. -Page 5- 17 . ) By letter dated December 12, 1991, the Town Manager notified Defendant, Maurice McEvoy, that it had come to the Manager's attention that several lots for which he previously had received licenses did not comply with zoning. (A copy of the letter is attached hereto as Exhibit 11711 ) . Specifically, the Manager told Defendant, Maurice McEvoy, that the Manager would not renew Mr. McEvoy's permits for the following lots because commercial open-air parking was not a permitted use in the PRD Zoning District: 44 Pleasant Street (Assessor's Map 327, Lot 133) ; 56 Pleasant Street (Assessor's Map 327, Lot 134 ) ; 66 Pleasant Street (Assessor's Map 327, Lot 135) ; and, 52 South Street (Assessor's Map 327, Lot 142 ) . 18. ) By letter dated April 3, 1992 (which letter is attached hereto -as Exhibit "811 ) , the Town Manager again advised Mr. McEvoy that because of the zoning violations, the Town Manager was forced to deny his applications for open-air parking spaces for the following lots: 44 Pleasant Street (Assessor's Map 327, Lot 133) ; 56 Pleasant Street (Assessor's Map 327, Lot 134 ) ; 66 Pleasant Street (Assessor's Map 327, Lot 135) ; 52 South Street (Assessor's Map 327, Lot 142) ; and, 86 South Street (Assessor's Map 327, Lot 137) - ( 1992 appears to be the first year that Mr. McEvoy applied for a open-air parking spaces license for this lot) . Upon information and belief, for all the above-mentioned lots, commercial parking for pay was a use in addition to the residential uses being conducted on the premises. 19. ) Although the Town Manager was previously advised that the permit issued by the Zoning Board of Appeals for 68 parking spaces covered both 53 Pleasant Street (Assessor's Map 327, Lot -Page 6- 121) and 43 Pleasant Street (Assessor's Map 327, Lot 122 ) , further investigation revealed that the special permit only applies to 53 Pleasant Street (Assessor's Map 327, Lot 121) and that the open-air parking being conducted by Maurice McEvoy at 43 Pleasant Street (Assessor's Map 327, Lot 122) fails to comply with zoning because commercial parking for pay is not a permitted use in the RB-1 (Residential) District. (The records of the Zoning Board of Appeals on Mr. McEvoy's application for a special permit for 53 Pleasant Street, Appeal No. 1980-30, indicate that at the time of Mr. McEvoy's application, 43 Pleasant Street was owned by Miss Constance Fortune and used as a private residence, a conforming use. ) 20. ) In the spring of 1992, Defendant, Maurice McEvoy, came to the Building Commissioner's office to discuss the commercial parking for pay uses on all his lots. The Building Commissioner advised Defendant, Maurice McEvoy, that the Town of Barnstable intended to strictly enforce the zoning ordinance and that commercial parking for pay was not a permitted use, except on the property located at 53 Pleasant Street, Hyannis, Massachusetts, for which Mr. McEvoy had received a special permit. 21. ) On or about June 29, 1992, Maurice McEvoy, apparently in response to a citation written by the Building Commissioner for operating a commercial parking lot in violation of zoning, came to the Building Commissioner's office and left a note. Mr. McEvoy indicated that he was not an offender, that "no one had ever seen him taking any money for parking cars" and that he lets his friends park their cars on his property. -Page 7- I 22. ) On or about March 1, 1993, the Building Commissioner sent Mr. Maurice McEvoy a letter reminding him that his property is located in the zoning districts where commercial parking for pay is not a permitted use. (See copy of letter attached hereto as Exhibit "9" ) . 23. ) In March, 1993, the Town of Barnstable Sign Code Enforcement Officer directed Mr. McEvoy to remove the sign located at 86 South Street (Assessor's Map 327, Lot 137 ) . The sign read: "Boat Parking Why Pay More? $5.00 per day Entrance. " By letter dated March 31, 1993, the Building Commissioner notified Mr. Maurice McEvoy to remove the sign. (See copy of letter attached hereto as Exhibit 111011 ) . Not only did Mr. McEvoy fail to remove the sign but within the month prior to the filing of this complaint, he had erected at this location an additional sign on a twelve-foot stanchion, which stanchion is painted bright red. 24 . ) Although the Manager and Building Commissioner encouraged Mr. McEvoy to seek relief from the Zoning Board of Appeals if he disputed the Building Commissioner's determination that the commercial parking lots (spaces) (except for the 68 spaces located at 53 Pleasant Street) were uses being carried on in violation of zoning, he has not pursued any such appeals. 25. ) On or about July 2, 1993, and at diverse other times, the Defendants used or suffered to be used their land at 86 South Street, Hyannis, Massachusetts, shown as parcel 137 on Barnstable Assessors Map 327, as follows: A sign stating "BOAT PARKING WHY PAY MORE? $5.00 PER DAY ENTRANCE" was erected at the entrance of -Page 8- r the said property's driveway on South Street, visible to the public way. Persons driving motor vehicles entered the said parcel or another parcel owned by the Defendants, paid money to persons in charge, including the Defendant, Maurice M. McEvoy, and were directed to and did park either upon the said lot 137 or upon other contiguous or adjacent or nearby parcels of land owned by the Defendants. 26. ) On or about July 2, 1993, and at diverse other times, the Defendants used or suffered to be used their land shown as parcels 122, 133, 134, 135, 137, 142 and 268 on Barnstable Assessors Map 327, as follows: A sign stating "BOAT PARKING WHY PAY MORE? $5.00 PER DAY ENTRANCE" was erected at the entrance of an adjacent lot on South Street, visible to the public way. Persons driving motor vehicles entered the said parcel or other nearby parcels owned by the Defendants, paid money to persons in charge, including the Defendant, Maurice M. McEvoy, and were directed to and did park upon the said lots 122, 133, 134, 135, 137, 142 or 268, or drove over said lots to other contiguous or adjacent or nearby parcels of land to park as directed, in violation of the zoning ordinance of the town of Barnstable, and in violation of the provisions of M.G.L. c. 148 556, inasmuch as the said premises were not licensed as therein required. Assessor's Map 327, outlining by color definition all of the seven properties in which open-air parking spaces are being operated in violation of Toning, is attached hereto as Exhibit "LAST" and is incorporated by reference herein. -Page 9- COUNT ONE: (ZONING VIOLATION) (86 South Street, Assessor's Map 327, Parcel 137) 27 . ) The allegations of paragraphs one through twenty-six of this complaint are hereby incorporated by reference into this count. 28. ) The Defendants continue to use and suffer to be used the premises located at Map 327, Parcel 137 as open-air parking spaces and as an entrance to the Defendants other illegal open- air parking spaces with commercial signage in violation of the Town of Barnstable Zoning Ordinance. 29. ) The actions of Defendants in refusing to comply with the applicable provisions of the Town of Barnstable Zoning Ordinance by using the premises located at Parcel 327, Lot 137 as a commercial, open-air parking spaces and as an entrance to his other illegal commercial open-air parking spaces with commercial signage will continue to cause extreme prejudice to the public interest. 30. ) The actions of Defendants in refusing to comply with the applicable provisions of the Town of Barnstable Zoning Ordinance has caused irreparable harm to the public interest. COUNT TWO: (LICENSE VIOLATION) (86 South Street, Assessor's Map 327, Parcel 137) 31. ) The allegations of paragraphs one through twenty-six of this complaint are hereby incorporated by reference into this count. -Page 10- i 32. ) The Defendants continue to use or suffer to be used the premises located at Map 327, Parcel 137 as commercial open- air parking spaces and as an entrance to the Defendants other illegal open-air parking spaces with commercial signage in violation of the provisions of M.G.L. c. 148, §56 inasmuch as the said premises were not licensed as therein required. 33. ) The actions of Defendants in refusing to comply with the provisions of the applicable laws and regulations of the Commonwealth and the Town of Barnstable regarding the licensing of open-air parking spaces will continue to cause extreme prejudice to the public interest. 34 . ) The actions of Defendants in refusing to comply with the applicable provisions of the Town of Barnstable Zoning Ordinance has caused irreparable harm to the public interest. COUNT THREE: (ZONING VIOLATION) (52 South Street, Assessor's Map 327, Parcel 142) 35. ) The allegations of paragraphs one through twenty-six of this complaint are hereby incorporated by reference into this count. 36. ) The Defendants continue to use or suffer to be used their land at 52 South Street, Hyannis, Massachusetts, shown as parcel 142 on Barnstable Assessors Map 327 as commercial open-air parking spaces in violation of the zoning ordinance of the town of Barnstable. 37. ) The actions of Defendants in refusing to comply with the applicable provisions of the Town of Barnstable Zoning -Page 11- Ordinance will continue to cause extreme prejudice to the public interest. 38. ) The actions of Defendants in refusing to comply with the applicable provisions of the Town of Barnstable Zoning Ordinance has caused irreparable harm to the public interest. COUNT FOUR: (LICENSE VIOLATION) (52 South Street, Assessor's Map 327, Parcel 137) 39. ) The allegations of paragraphs one through twenty-six of this complaint are hereby incorporated by reference into this count. 40. ) The Defendants continue to use or suffer to be used their land at 52 South Street, Hyannis, Massachusetts, shown as parcel 142 on Barnstable Assessors Map 327 as commercial open-air parking spaces in violation of M.G.L. c. 148, §56 inasmuch as the said premises were not licensed as therein required. 41. ) The actions of Defendants in refusing to comply with the provisions of the applicable laws and regulations of the Commonwealth and the Town of Barnstable regarding the licensing of open-air parking spaces will continue to cause extreme prejudice to the public interest. 42. ) The actions of Defendants in refusing to comply with the applicable provisions of M.G.L. c. 148, §56 has caused irreparable harm to the public interest. -Page 12- COUNT FIVE: (ZONING VIOLATIONS) (Pleasant Street, Assessor's Map 327, Parcels 122, 133, 134, 135, and 268) The allegations ofparagraphs one throu h twenty-six 43. 9 q of this complaint are hereby incorporated by reference into this count. 44 . ) The Defendants continue to use or suffer to be used their land shown as lots 122, 133, 134 , 135 and 268 on Barnstable Assessor's Map 327 as commercial open-air parking spaces for pay in violation of the zoning ordinance of the Town of Barnstable. 45. ) The actions of Defendants in refusing to comply with the applicable provisions of the Town of Barnstable Zoning Ordinance will continue to cause extreme prejudice to the public interest. 46. ) The actions of Defendants in refusing to comply with the applicable provisions of the Town of Barnstable Zoning Ordinance has caused irreparable harm to the public interest. COUNT SIR: (LICENSE VIOLATION) (Pleasant Street, Assessor's Map 327, Parcels 133, 134, 135 AND 268) 47 . ) The allegations of paragraphs one through twenty-six of this complaint are hereby incorporated by reference into this count. 48. ) The Defendants continue to use or suffer to be used their land shown as lots 133, 134, 135 and 268 on Barnstable Assessors Map 327 as commercial open-air parking spaces in -Page 13- violation of M.G.L. c. 248, §56 inasmuch as the said premises were not licensed as therein required. 49. ) The actions of Defendants in refusing to comply with the applicable provisions of M.G.L. c. 248, §56 has caused extreme prejudice to the public interest. 50. ) The actions of Defendants in refusing to comply with the applicable provisions of M.G.L. c. 148, §56 has caused irreparable harm to the public interest. COUNT SEVEN• (Sign Code Violation -- No Legal Use) 51. ) The allegations of paragraphs one through twenty-six of this complaint are hereby incorporated by reference into this count. 52 . ) The signs used by the Defendants constitute a violation of Section 4-3.6 of the zoning ordinance of the town of Barnstable inasmuch as they advertise uses which are not legal on the premises where the sign is located. 53 . ) The actions of Defendants in refusing to comply with the applicable provisions of the Town of Barnstable Zoning Ordinance has caused irreparable harm to the public interest. COUNT EIGHT: (Sign Code Violation -- Off-Premises Business) 54 . ) The allegations of paragraphs one through twenty-six of this complaint are hereby incorporated by reference into this count. 55. ) The signs used by the Defendants constitute a violation of Section 4-3.3 of the zoning ordinance of the town of -Page 14- I Barnstable inasmuch as it advertises a use which is not on the premises on which the signs are located. 56. ) The actions of Defendants in refusing to comply with the applicable provisions of the Town of Barnstable Zoning Ordinance has caused irreparable harm to the public interest. COUNT NINE: (Sign Code Violation -- Unpermitted Sign) 57 . ) The allegations of paragraphs one through twenty-six of this complaint are hereby incorporated by reference into this count. 58. ) The signs used by the Defendants constitute a violation of Section 4-3.26 of the zoning ordinance which requires that all regulated signs obtain a permit from the Building Commissioner. 59. ) The actions of Defendants in refusing to comply with the applicable provisions of the Town of Barnstable Zoning Ordinance has caused irreparable harm to the public interest. WHEREFORE, Plaintiffs respectfully pray that this Court: (1) Enter a temporary restraining order, preliminary injunction, and permanent injunction against the Defendants, Maurice M. McEvoy and Rose Ann McEvoy, individually and as trustees of the McEvoy Realty Trust, prohibiting them and their agents, employees, and assignees from operating the business of open-air parking spaces or suffering such a business to be operated on or over their land on Pleasant -Page 15- and South Streets, Hyannis shown as lots 122, 133, 134, 135, 137, 142 and 268 on Barnstable Assessor's Map 327; (2) Enter a temporary restraining order, preliminary injunction, and permanent injunction against Defendants, Maurice M. McEvoy and Rose Ann McEvoy, individually and as trustees of the McEvoy Realty Trust, prohibiting them and their agents, employees and assignees from maintaining any signs advertising parking on premises owned by them, which premises are not properly licensed as open-air parking spaces, or which in any other way violates the provisions of the town of Barnstable zoning ordinance; (3) Enter a judgment declaring that the Defendants are prohibited from operating the business of open-air parking spaces on their land shown as parcels 122, 133, 134, 135, 137, 142 and 268 on Barnstable Assessor's Map 327 without a license so to do, issued under the provisions of M.G.L. c. 148, §56; and, (4) Any other relief this Court deems is just and equitable. Dated: August 2nd, 1993. BUILDING COMMISSIONER, etc. , and TOWN MANAGER of TOWN OF BARNSTABLE, Plaintiffs, By the' Attorneys, RO11dERT D. SMITH, Tow Attorney [P.O. No. 469986] RUTH J. WEIL, Ass . own Attorney [B.B.O. No. 51928 TOWN OF BARNSTABLE 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508) 790-6280 (508) 775-3344 (Fax) -Page 16- COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BUILDING COMMISSIONER of the ) AFFIDAVIT OF TOWN OF BARNSTABLE, and the ) JOSEPH D. DALUZ TOWN MANAGER of the ) IN SUPPORT OF TOWN OF BARNSTABLE, ) PLAINTIFFS' MOTION Plaintiffs, ) FOR PRELIMINARY INJUNCTION. _vs ) MAURICE M. MC EVOY, and ) ROSE ANN MC EVOY, Individually ) and as Trustees of the ) McEvoy Realty Trust, ) Defendants. ) I, JOSEPH D. DALUZ, on oath depose and state as follows: 1. ) I have full knowledge of the facts stated herein and am competent to testify to said facts. 2. ) I currently hold the position of Town of Barnstable Building Commissioner and have held that position for almost twenty (20) years. 3. ) I am familiar with Maurice McEvoy and I am aware that he owns the following properties in the Town of Barnstable (Hyannis) Massachusetts: 43 Pleasant Street (Assessor's Map 327, Lot 122) ; 44 Pleasant Street (Assessor's Map 327, Lot 133) ; 53 Pleasant Street (Assessor's Map 327, Lot 121) ; 56 Pleasant Street (Assessor's Map 327, Lot 134 ) ; 66 Pleasant Street (Assessor's Map 327, Lot 135) ; -- (Assessor's Map 327, Lot 268) ; 52 South Street (Assessor's Map 327 , Lot 142) ; and, 86 South Street (Assessor's Map 327 , Lot 137 ) . 4 . ) All of the above-referenced properties are located in the Professional Residential (PRD) Zoning District with the exception of Assessor's Map 327 , Lots 121, which are within the i (E:\92-0135\J0EDALD2] 1 RB-1 (Residential) District where commercial open-air parking for pay is not a permitted use in either district. 5. ) On or about June 16, 1980, Maurice McEvoy was granted a special permit from the Barnstable Zoning Board of Appeals for 53 Pleasant Street (Assessor's Map 327, Lot 121) Hyannis which allowed Mr. McEvoy to change from one non-conforming (lodging house) to another non-conforming use (commercial parking lot with 68 spaces) . Said special permit was subject to several conditions, inter alia, that a private hedge should be planted and maintained along the entire northerly side of the parking lot and further that the private way abutting the parking lot shall not be used for ingress or egress to the parking lot nor should vehicles be parked anywhere on the private way. 6. ) None of the other properties, except as noted in the preceding paragraph for 53 Pleasant Street (Assessor's Map 327, Lot 121) , owned by Maurice McEvoy, has the benefit of a special permit or of any other zoning relief. When the Town Manager in July of 1991 inquired about the zoning of the above-referenced properties, I gave him my opinion that the operation of a commercial, open-air parking business on the other properties owned by Mr. McEvoy represents a violation of the Town of Barnstable Zoning Ordinance. It should be noted that at that time, I was unaware of the fact that the land which is Assessor's Map 327, Parcel 122, was a separate lot. 7 . ) In the spring of 1992, Mr. Maurice McEvoy came to my office to discuss the commercial parking lot uses on all his lots. I advised Mr. McEvoy that the Town of Barnstable intended rtt\92-0135\J0EDALUZ1 2 r to strictly enforce the zoning ordinance and that commercial parking was not a permitted use, except on the property located at 53 Pleasant Street, Hyannis, Massachusetts, for which Mr. McEvoy had received a special permit. 8. ) On or about June 25, 1992, I issued to Mr. McEvoy a citation for the premises located at 52 South Street (Assessor's Map 327, Lot 142) for a violation of the Town of Barnstable Zoning Ordinance by operating a commercial parking lot. 9. ) On or about June 29, 1992, Maurice McEvoy came to my office and left a note and the ticket. Mr. McEvoy indicated that he was not an offender, that "no one had ever seen him taking any money for parking cars" and that he lets his friends park their cars on his property. 10. ) On or about March 1, 1993, I sent Mr. Maurice McEvoy a letter reminding him that his properties are located in zoning districts where commercial parking is not a permitted use. (See copy of letter and return receipt request attached hereto as Exhibits " 1" and "211 , respectively. ) 11. ) In March, 1993, the Town of Barnstable Sign Code Enforcement Officer directed Mr. McEvoy to remove the sign located at 86 South Street (Assessor's Map 327, Lot 137 ) . The sign read: "Boat Parking Why Pay More? $5.00 per day Entrance. " By letter dated March 31, 1993, I notified Mr. Maurice McEvoy to remove the sign. Not only did Mr. McEvoy fail to remove the sign but within the month prior to the date hereof, he has erected a similar sign on a twelve-foot stanchion, colored bright red. (See copy of letter attached hereto as Exhibit "3" . ) 3 [E:\92-0135\JOEDALUZJ 12 . ) Although I have encouraged Mr. McEvoy to seek relief from the Zoning Board of Appeals if he believed that my determination that the parking lots (except for the one located at 53 Pleasant Street) were uses being operated in violation of zoning, he has not pursued any such appeals. 13. ) Because of Mr. McEvoy's refusal to voluntarily comply with the zoning ordinance and because of Mr. McEvoy's assertion that he was not conducting commercial parking lot activities for pay on his other properties, in spite of indicia to the contrary, the Town Manager enlisted the services of the Barnstable Police Department to investigate the allegation that Mr. McEvoy was operating commercial parking lots in violation of zoning. 14. ) Mr. McEvoy's blatant and continued violation of the Town of Barnstable Zoning Ordinance culminating in his recent placement of a sign on a twelve-foot stanchion painted bright red on his residentially-zoned property located at 86 South Street (Assessor's Map 327, Lot 137 ) , essentially advertising his continued zoning violation, has seriously jeopardized my ability to enforce zoning throughout the Town of Barnstable. Signed under the pains and penalties of perjury this 2nd day of August, 1993. `1z z: A J ' �jJr4 D. 57a_lui, /Btylding commissioner, Town of Barnstable (E:\92-0135\JOEDALVZ] 4 "EXHIBIT 1" The Town of Barnstable Inspection Department uK , 367 Main Street, Hyannis, MA 02601 508-790-6227 Joseph D. DaLuz-*' Building Commissioner March 1, 1993 Mr. Maurice McEvoy 56 Pleasant Street Hyannis, MA 02601 Dear Mr. McEvoy: Re: Commercial parking in the Professional Residential District Dear Mr. McEvoy: As Zoning Enforcement officer for the Town of Barnstable, I am writing to remind you that your property is located in the Professional Residential District where commercial parking is not a permitted use. In the event that you attempt to use property located at 56 Pleasant street, 44 Pleasant Street, 66 Pleasant Street or 52 South Street as a commercial parking lot, I will have no choice but to pursue the remedies which are available to prevent you from continuing said illegal use. I trust that you will abide by the terms of the Town of Barnstable Zoning ordinance. Peace, "7oseph D. DaLu Building Commissioner JDD/km cc: Town Manager Town Attorney Barnstable chief of Police Director, consumer Affairs Certified P 375 771 536 R.R.R. z»o3o:a uuly11 JUj Jtun )Jueyl m a m F� ce o a m m « (� W > c V cmi cc> Q m h o W nE)G1MIT 2° m v m E CD .m, m M L « v 0 %a a 00 mm 0 r1 N c Z t omit n v` a v> m a s to 9 ,: Cd A 3v � Q u s r s E. J '0C. L "•� Off 0 is o 00 >da � � ` w m o e m c u ,.+ o o E y as o ¢+ m V qog � o n; y 0) L m 0 C m m U G m O .•of o V[ ¢ p � rl !t1 � m mm v== �8 � t E N fi) cruyEo g o f aWo0 0•, a n, >� o¢ar E E oWJVEQEF m 3 ' ...N • • •;v • ••o Uri• (d a lePle esJeneJ eyi uo Peieidwoo SS3a00d 98fff—ju jnoA sl UNITED STATES POSTAL SERVICE Official Business PENALTY FOR PRIVATE USE TO AVOID PAYMENT US MAIL OF POSTAGE,$300 1 Print your name, address and ZIP Code here • Town of Barnstable • Inspection department 367 Main Street Hyannis, MA 02601 f 1 J ' The Town of Barnstable EXEiIBIT 3 •u• Inspection Department '��•�t'� 367 Main Street, Hyannis, MA 02601 508-790-6227. - _.. Joseph D. DaLuz*' Building Commissioner March 31, 1993 t Mr. Maurice McEvoy 56 Pleasant Street Hyannis, MA 02601 Dear Mr. McEvoy: Please remove all "PARKING" signs from your South Street, Hyannis, properties. The only sign permitted will be for your authorized parking lot on Pleasant Street. Your cooperation will be appreciated. Peace, Js t h D. Da uz Building Commissioner JDD/gr cc: Town Manager Assistant Town Manager Town Attorney I COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 3'loa BUILDING COMMISSIONER of the ) AFFIDAVIT OF TOWN TOWN OF BARNSTABLE, and the ) MANAGER, WARREN J. TOWN MANAGER of the ) RUTHERFORD, TOWN OF BARNSTABLE, ) IN SUPPORT OF PLAINTIFFS' MOTION Plaintiffs, ) FOR PRELIMINARY INJUNCTION. -vs- ) MAURICE M. MC EVOY, and ) ROSE ANN MC EVOY, Individually ) and as Trustees of the ) McEvoy Realty Trust, ) Defendants. ) I, Warren J. Rutherford, on oath depose and state as follows: 1. ) I have full knowledge of the facts stated herein and am competent to testify to said facts. 2 . ) I currently hold the position of Town Manager for the Town of Barnstable, appointed pursuant to the Barnstable Home Rule Charter adopted by the voters of the Town on April 11, 1989. I am the first Town Manager for the Town of Barnstable and I have held that position since January, I 1990. 3. ) Under the previous charter, the Town of Barnstable had had three full-time Selectmen and a representative Town Meeting. 4 . ) As part of my duties as Town Manager, I am responsible for issuing licenses for open-air parking lots, pursuant to the provisions of M.G.L. c. 148, s. 56. Before (E:\92-0135WARMN-31 1 the voters of the Town of Barnstable adopted a council- manager form of government, the Board of Selectmen had the responsibility of issuing licenses for open-air parking lots. 5. ) On or about July 19, 1991, I received a letter from a resident of the town, complaining that there were a number of open-air parking lots operating in violation of zoning on South Street, Pleasant Street and School Street, Hyannis, in the vicinity of the Steamship Authority docks in Hyannis Harbor. 6. ) I referred this complaint to the Building Commissioner for the Town of Barnstable, the town's zoning enforcement officer. The Building Commissioner's investigation revealed that commercial open-air parking was not a permitted use in the zoning districts involved. In error, the Board of Selectmen had issued yearly licenses to several open-air parking applicants in violation of the zoning ordinance. Unaware that parking lots were not permitted uses in either the PRD or RB-1 districts until I received the citizen's complaint, I myself had issued licenses for several open-air parking lots for the years 1990 and 1991, which lots did not comply with zoning. 7. ) By letter dated December 12, 1991, I notified Maurice McEvoy that it had come to my attention that several lots for which he previously had received licenses did not comply with zoning. (A copy of the letter is attached (E:\92-0135\WARREN-3) 2 hereto as Exhibit "1" ) . Specifically, I told him that I would not renew his permits for the following lots: 44 Pleasant Street (Assessor's Map 327, Lot 133) ; 56 Pleasant Street (Assessor's Map 327, Lot 134) ; 66 Pleasant Street (Assessor's Map 327, Lot 135) ; and, 52 South Street (Assessor's Map 327, Lot 142) . 8. ) By letter dated April 3, 1992 (which letter is attached hereto as Exhibit "2" ) , I again advised Mr. McEvoy that because of the zoning violations, I was forced to deny his applications for open-air parking lots for the following lots: 44 Pleasant Street (Assessor's Map 327, Lot 133) ; 56 Pleasant Street (Assessor's Map 327, Lot 134) ; 66 Pleasant Street (Assessor's Map 327, Lot 135) ; 52 South Street (Assessor's Map 327, Lot 142) ; and, 86 South Street (Assessor's Map 327, Lot 137) - ( 1992 appears to be the first year that Mr. McEvoy .applied for a open-air parking lot license for this lot) . 9. ) In my correspondence with Mr. McEvoy, I invited him to appeal the Building Commissioner's determination that said open-air parking lots violated zoning to the Zoning Board of Appeals. To the best of my knowledge, Mr. McEvoy has failed to seek zoning relief from the Zoning Board of Appeals. 10. ) In 1980, Mr. McEvoy did receive a special permit from the Zoning Board of Appeals to conduct an open-air parking lot with 68 parking spaces at 53 Pleasant Street (Assessor's Map 327, Lot 121) . Although I was previously advised that the permit issued by the Zoning Board of Appeals for 68 parking spaces covered both 53 Pleasant Street (Assessor's Map 327, Lot 121 ) and 43 Pleasant Street [E:\97-0135\WARREN-3J 3 i (Assessor's Map 327, Lot 122 ) , further investigation in preparation for seeking injunctive relief revealed that the special permit only applies to 53 Pleasant Street (Assessor's Map 327, Lot 121) and that the open-air parking being conducted by Maurice McEvoy at 43 Pleasant Street (Assessor's Map 327, Lot 122) fails to comply with zoning in the RB-1 District. (The records of the Zoning Board of Appeals on Mr. McEvoy's application for a special permit for 53 Pleasant Street, Appeal No. 1980-30, indicate that at the time of Mr. McEvoy's application, 43 Pleasant Street was owned by Miss Constance Fortune and used as a private residence, a conforming use. ) 11. ) In spite of notices and orders served on the McEvoys to cease and desist from operating the aforementioned parking lots, I am advised by the Barnstable Police Department and from the complaints of various citizens that the McEvoys continue to conduct the open-air . parking operation on: 43 Pleasant Street (Assessor's Map 327, Lot 122) ; 44 Pleasant Street (Assessor's Map 327, Lot 133) ; 56 Pleasant Street (Assessor's Map 327, Lot 134 ) ; 66 Pleasant Street (Assessor's Map 327, Lot 135) ; 52 South Street (Assessor's Map 327, Lot 142 ) ; and, 86 South Street (Assessor's Map 327, Lot 137 ) . 12 . ) The Town of Barnstable, like many government entities with limited resources, relies heavily on. the self- policing cooperation of its citizens. The actions of the McEvoys in openly and flagrantly violating the zoning ordinance and licensing laws threatens to seriously (E:\92-0135\WARREN-31 4 undermine the town's entire enforcement scheme. Due to the seasonal aspects of the open-air parking lot operations, the need for prompt action to restrain the McEvoys from continuing to engage in the open-air parking lot business for pay in areas where such use is not permitted is paramount. 13. ) The actions of the McEvoys in violating the zoning ordinance and the licensing laws have caused and will continue to cause extreme prejudice and irreparable harm to the public interest. Signed under the pains and penalties of perjury this 2nd day of August, 1993. Warren J. Rutherfo , T wn Manager, Town of rnstable [E:\92-0135\WARREN-3J 5 i The Town of Barnstable �+�T�-p�1,, t 11(:�[1[1 I 111 •AIi1TABL9 Office of Town Manager 367 Main Street, Hyannis, MA 02601 Office 508-790-6205 - Warren J.Rutherford FAX 508-775-3344 Town Manager December. 12, 1991 Maurice McEvoy 56 Pleasant Street Hyannis, MA 02601 NOTIFICATION OF NON-COMPLIANCE WITH THE TOWN ZONING ORDINANCES Parking' Lot at 56 Pleasant 'St. 12 spaces Parking Lot at 44 Pleasant St. 24 .spaces Parking Lot at 66 Pleasant St. 21 spaces Parking Lot at 52 South Street 12 spaces Parking Lots at 43 & 53 Pleasant St. . Will be renewed for 68 spaces not 72 under approval of ZBA 1980-30 Dear Mr. McEvoy, It has has come to my attention that the parking lots referenced above and licensed to you does not permit parking in the Professional/Residential District. You are advised that effective April 1, 1992, your parking lot licenses with the exception of 68 Spaces at 43 & 53 Pleasant Street will not be renewed by the Town Manager. If you have any interest in renewing these parking lot licenses you should contact this office for further discussion. Sincerely, 0.7 Warren. Rut rford Town Manager cc - Joseph DaLuz , Building Commissioner Thomas Geiler, Licensing Agent Robert Smith, Town Attorney i The Town of Barnstable „EXHIBIT 2„ Office of Town Manager 367 Main Street, Hyannis, MA 02601 Office 508-790-6205 Warren J,Rutherford FAX 508-775-3344 April 3, 1992 Town Mmagcr, Mr. Maurice M. McEvoy 56 Pleasant Street Hyannis, MA 02601 Re: Renewal of Parking Lot Permits #2 thru #5 ' Dear Mr. McEvoy: In reference to your request dated April 1, 1992 as regards your renewal of parking lot permits for the following locations (44 Pleasant St. , 56 Pleasant St. , 66 Pleasant and 86 South St. and 52 South St. ) , please be advised as follows. You have been previously advised on two occasions that the referenced parking lots do not comply with the Zoning ordinances of the Town of Barnstable. You were also previously advised of your right to petition for a special permit through the Zoning Board of Appeals to overrule the Building Commissioner's decision on non-compliance with zoning. The Parking lot regulation promulgated on April 12, 1991 specifically indicates the need for all parking lots to comply with zoning. I cannot, therefore, issue a parking lot permit for the lots noted above until such time as the Zoning Board of Appeals provides the Building Commissioner the appropriate ability to indicate approval for zoning. Enclosed please find your four (4 ) parking lot renewal forms which should be resubmitted in the event you receive the necessary aprovals from the Building Commissioner. Very truly yours, Warr Ruth f rd Town ager Town of Barnstable WJR/ab Enc: cc: Joseph Daluz, Building Commissioner Thomas Geiler, Consumer Affairs Dexter Bliss, Chairman of ZBA doc: McEvoypl I COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. y3-6a/ BUILDING COMMISSIONER of the ) AFFIDAVIT OF TOWN OF BARNSTABLE, and the ) THOMAS K. LYNCH TOWN MANAGER of the ) IN SUPPORT OF TOWN OF BARNSTABLE, ) PLAINTIFFS' MOTION Plaintiffs, ) FOR PRELIMINARY INJUNCTION. -vs- ) MAURICE M. MC EVOY, and ) ROSE ANN MC EVOY, Individually ) and as Trustees of the ) McEvoy Realty Trust, ) Defendants. ) I, THOMAS K. LYNCH, on oath depose and state as follows: 1. ) I have full knowledge of the facts stated herein and am competent to testify to said facts. 2. ) I am currently employed as the Executive Director of the Barnstable Housing Authority ( "BHA" ) and have held that position since December 3, 1991. Prior to assuming the position as Executive Director of the Barnstable Housing Authority, I served as a Commissioner on the State Rate Setting Commission. 3. ) As part of my duties as Executive Director, I oversee all the activities of the Barnstable Housing Authority including the supervision of properties owned by the Barnstable Housing Authority. 4. ) In 1989, the Barnstable Housing Authority and the Housing Assistance Corporation, Inc. built the Kit Anderson House, a group residence for persons with disabilities, ` (E:\92-0135\WnYNCEI 1 located at 78 Pleasant Street, Hyannis, Massachusetts. These two agencies currently operate the Kit Anderson House. 5. ) Mr. Maurice McEvoy owns the property at 86 South Street which is adjacent to the Kit Anderson House. .The two properties are separated by a joint driveway in which Mr. McEvoy has painted the words "Parking. " He has also painted directional arrows on said driveway. 6. ) Based upon concerns expressed that Mr. McEvoy was conducting his parking lot operation on a portion of the Kit Anderson property, on or about July 16, 1992, I met with BHA Maintenance Supervisor, Brian Harrison, and Mr. McEvoy to discuss the issue. I had in my possession a photograph dated 1989 showing Mr. McEvoy in front of shrubs and a chain-linked fence that then appeared to be on the lot in which the Kit Anderson House was built. The fence and the shrubs were now removed, a portion of that property now appears to be paved and a twelve-foot electrified sign had been erected with the words "Parking" printed in red. Mr. McEvoy stated that the driveway had been that way for "ten to twelve" years, although an examination of the pavement seemed to indicate that there was a fairly recently paved portion abutting the lawn of the Kit Anderson House. I informed Mr. McEvoy that I had no choice but to have the property surveyed. 7. ) By letter dated September 18, 1992 (a copy is attached as Exhibit 1) , I advised Mr. McEvoy that a survey conducted by Baxter and Nye confirmed that Mr. McEvoy was using a portion of the BHA land, including the portion where the twelve-foot electrified sign was located, to conduct his parking lot operation. I expressed the BHA's concerns about i potential liability issues. I asked for Mr. McEvoy to cease any activity .on BHA land. I further stated that I hoped that this matter could be resolved in a friendly and expeditious manner. 8. ) Since September, 1992, I have been engaged in protracted correspondence with Mr. McEvoy's attorney to attempt to have Mr. McEvoy stop his parking lot activity on our property, remove his sign, restore our property, and otherwise compensate the BHA for the continued encroachment. While Mr. McEvoy's attorney has been generally agreeable, there has been no resolution of the above issues. 9. ) By letter dated March 24, 1993, we again asked Mr. McEvoy to remove his sign and resolve the other issues. When he refused, the BHA removed the sign but was reluctant to remove the electrified pole. I noticed that within the last week or so, Mr. McEvoy has finally removed the twelve-foot pole and placed it on his own property. 10. ) Mr. McEvoy continues to park cars, presumably for remuneration, on BHA property. When I drove by the property on the July 4th weekend, I observed a number of cars parked on the side of the Kit Anderson House and in the area identified by the surveyor as BHA property. 11. ) The Housing Authority's efforts to work with Mr. McEvoy as a good neighbor have not proved fruitful. I aM concerned about the safety of the residents of the Kit 3 (7:\92-0115\T, /MLYNCHI Anderson House and of the Housing Authority's liability for a commercial activity being conducted on its property without its consent. Signed and sworn to under the pains and penalties of perjury this -64-� day of July, 1993. Thomas K. Lynch,, xecutive Director, Barnstable Housing Authority i w, "F-VUBIT 1" Barnstable .1`..." ..�. .; Telephone(508)771-7'_'?2 : ,.,. ;::'' Housing Authority 146 South Street• Hyannis,Massachusetts 02601 \•o Sertermter !A. 1992 M. '+1at:r:.e '�1. MCC VCy �6 ='easa,nt Street I AA 144. tear Mir. Nil caV0V: On September 16. '9_2. Saxzer ar;d Nye. !nc.. cf Oster iile, surieved and staked Grocer-y owned oy tr'e carnstaeie cusmg AtJtncrir4,SHA) at 78 P!easant Sheet. 't-;van,nis. i his Wccer:v aiCuts land cwr,ec :,y you and ccerated as a parking !ot. The r esuis Cf :1,e su&rve`/ .i�dicatZ ; a, y" are .:—esEr;uy .-sing a vcr;C-ri of vT'h !a^d as a c'iveway and fa the pus-pose cf far!sing cars. The S;A. ;s very concerned about ;his ;.se ;or several reasons, rrincipaily, however, the Aut`crlty is ever;ed about liability should anyone be injured or harmed or, the property. i in yz is aL;temobile 7affic, rec'estrian r-affic and the par'icing of cars cccurrira on this !ane. The BHA respec:Tuily requests that you cease to use our property fcr any purese. Please be advised that we will assume no liability for any injuries or damage to ,persons or property should there be continued use cf this land. As we discussed.on i nursday, September 17. 19092 with Craig Burlingame. Chairman of the 3;:A. and Peter Olotka, one of the Commissioners. we believe this can be resolved ;n a friendly manner. The gu;t must discuss and decide hew we wish to proceed •Writs� this enc'oachment of our !and. T.'.e Authority will contact you shady to discuss the options available to us. In t`e interim please cease any and ail acti city on w e rrcpery staked and ou.Iined in the e^c!csed ^Ian. Thank vcu fcr your ccoceraticn in this Ma Ver. Sincerely. Thomas K. Lynch EYecu Ye Director Equal Housing Opportunity Agency COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BUILDING COMMISSIONER of the ) AFFIDAVIT OF TOWN OF BARNSTABLE, and the ) DOUGLAS W. BILL TOWN MANAGER of the ) TOWN OF BARNSTABLE, ) Plaintiffs, ) -vs- ) MAURICE M. MC EVOY, and ) ROSE ANN MC EVOY, Individually ) and as Trustees of the ) McEvoy Realty Trust, ) Defendants. ) I, DOUGLAS W. BILL, on oath depose and state as follows: 1. ) I have full knowledge of the facts stated herein and am competent to testify to said facts. 2. ) I currently reside at 60 Harvard Street, Hyannis, Massachusetts with my wife and two children. I am a member of both the Glenmere and the Hyannis Civic Associations and also a member of the Town of Barnstable Planning Board. 3. ) The village of Hyannis, while the commercial center for the Town of Barnstable, has many residential neighborhoods comprised of families with young children, like mine. The Glenmere Civic Association has been actively involved in preserving the historic character and identity of individual neighborhoods within Hyannis. Of particular concern to us has been ensuring that the applicable residential zoning is (E:\92-0135\D0UCBILLj 1 r enforced and that residential neighborhoods retain adequate buffers from nearby commercial areas. , 4. ) On or about July 19, 1991, I wrote to Warren J. Rutherford, Barnstable Town Manager, regarding the increasing number of "lawn" parking lots that were "cropping up" in violation of the residential zoning on Pleasant, School and South Streets in the vicinity of the Steamship Authority. This is an area of old sea-captains' houses, some dating back i to the 18001s. Some of the sea-captains'houses are currently being used as lodging houses or apartments to meet the housing needs of the workers in the area, as well as for guest accommodations for travelers. 5. ) Although I am aware that the parking space licenses on the lots which violate zoning have not been renewed and that the owners of these properties have been notified of the illegality of commercial parking on these residential lots, I have observed that commercial parking has increased rather than decreased in this area, particularly on the lots owned by Maurice McEvoy and Rose Ann McEvoy. 6. ) The use of front "lawns" for parking not only violates the zoning in my neighborhood but also causes visual blight in that literally hundreds of cars are packed sardine- can style on the lawns of these once elegant sea-captain's houses. The bumper-to-bumper parking poses safety hazards for fire, ambulance, and other rescue vehicles, as well as for residents attempting to access their homes. The entrances to [E:\92-0135\DOUGBILL) 2 these sites also pose safety concerns for ambulances travelling to Cape Cod Hospital. Signed under the pains and penalties of perjury this 30th day of July, 1993. Dour s W. Bill (P:\92-0135\DOUG3ILL) 3 I COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, so: SUPERIOR COURT C.A. No. F3-6 a/ BUILDING COMMISSIONER of the ) AFFIDAVIT OF TOWN OF BARNSTABLE, and the ) DETECTIVE TOWN MANAGER of the ) REID N. HAVE TOWN OF BARNSTABLE, ) IN SUPPORT OF Plaintiffs, ) PLAINTIFFS' MOTION FOR PRELIMINARY -vs- ) INJUNCTION. MAURICE M. MC EVOY, and ) ROSE ANN MC EVOY, Individually ) and as Trustees of the ) McEvoy Realty Trust, ) Defendants. ) I, REID N. HALL, on oath depose and state as follows: 1. ) I have full knowledge of the facts stated herein and am competent to testify to said facts. 2. ) I am currently employed as a Detective with the Town of Barnstable Police Department. 3. ) On Friday, July 2, 1993, at approximately 8:30 A.M. , I was requested by Detective Sergeant Edward Smith to accompany and park Rhonda Colburn's personal vehicle (Ms. Colburn is employed as a secretary in the Detective Division of the Barnstable Police Department) at the open-air commercial parking lot located at 86 South Street, Hyannis, Massachusetts (Assessor's Map 327, Parcel 137) that is owned and operated by Maurice McEvoy and Rose McEvoy. 4 . ) At approximately 9:05 A.M. on that date, I drove Ms. Colburn's vehicle into the South Street entrance of the McEvoy lot (Map 327, Parcel 137) . Mr. Maurice McEvoy, who is known to me, asked "How long would we be staying on Nantucket?" When I told him one night, he stated that it would cost ten ($10 .00) dollars. [E:\92-0135\REIDHAUj 1 i 5. ) I gave Mr. McEvoy a twenty dollar bill and he gave me a parking lot receipt (see copy attached hereto) and a ten dollar bill. 6. ) Mr. McEvoy then directed us to the next parking lot, which would be located northerly. There, we were greeted by a white male attendant, approximately fourteen to sixteen years old, who directed us to the next parking area which was westerly. 7 . ) Thereupon, we approached a white female approximately fifty to sixty years old who asked us to park westerly, across Pleasant Street. 8. ) Finally, we were met by a white male attendant, approximately fifty years old who directed us to park the vehicle in a lot on Pleasant Street. 9. ) I secured the vehicle on the northerly side of this lot and we left the area on foot. The receipt for the parking was turned over to Detective Sergeant Edward C. Smith. Signed and sworn to under the pains and penalties of perjury this day of July, 1993. Reid N Hall, Detective, Barns able Police Department [E:\92-0135\UIDB=1 2 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. �'.3-6a/ BUILDING COMMISSIONER of the ) AFFIDAVIT OF TOWN OF BARNSTABLE, and the ) PATROLMAN TOWN MANAGER of the ) JOHN CORBETT TOWN OF BARNSTABLE, ) IN SUPPORT OF Plaintiffs, ) PLAINTIFFS' MOTION FOR PRELIMINARY -vs- ) INJUNCTION. MAURICE M. MC EVOY, and ) ROSE ANN MC EVOY, Individually ) and as Trustees of the ) McEvoy Realty Trust, ) Defendants. ) I, JOHN CORBETT, on oath depose and state as follows: 1. ) I have full knowledge of the facts stated herein and am competent to testify to said facts. 2. ) I am currently employed as a Patrolman with the Town of Barnstable Police Department. 3. ) On Friday, April 23, 1993, at approximately 1:00 P.M. , Barnstable Police Detective Secretary, Rhonda Colburn, and I were assigned to take Ms. Colburn's vehicle, a 1983 Mercury Cougar, to a commercial parking lot at 86 South Street (Assessor's Map 327, Lot 137) to investigate an alleged zoning violation. 3. ) At the entrance of 86 South Street (Assessor's Map 327, Parcel 137) , known to me as "the Pilot House" , a rooming house, I saw a sign which said "Boat Parking $5. " 4. ) Upon entering the driveway, we were told by a white male (who was later identified as Robert Peasley) that it would cost us five ($5.00) dollars a day to leave our (Et\92-0135\C0RSEIT] 1 r vehicle. We told Mr. Peasley that we would be parking for three days. Upon paying Mr. Peasley fifteen ($15.00) dollars, we obtained a receipt. Mr. Peasley then directed us where to park our vehicle. Signed and sworn to under the pains and penalties of perjury this I'2-2A-r5 day of July, 199 . hn Corbett, Patr man, arnstable Police Department i [St\92-0135\COUM) 2 i COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, so: SUPERIOR COURT C.A. No. BUILDING COMMISSIONER of the ) AFFIDAVIT OF TOWN OF BARNSTABLE, and the ) SERGEANT TOWN MANAGER of the ) DAVID N. CAMERON, TOWN OF BARNSTABLE, ) IN SUPPORT OF Plaintiffs, ) PLAINTIFFS' MOTION FOR PRELIMINARY -vs- ) INJUNCTION. ) MAURICE M. MC EVOY, and ) ROSE ANN MC EVOY, Individually ) and as Trustees of the ) McEvoy Realty Trust, ) Defendants. ) I, DAVID N. CAMERON, on oath depose and state as follows: 1. ) I have full knowledge of the facts stated herein and am competent to testify to said facts. 2. ) I am currently employed as a Sergeant with the Town of Barnstable Police Department. 3. ) On Friday, July 2, 1993, at approximately 10:47 A.M. , I was dispatched to the rear of 56 Pleasant Street, (Assessor's Map 327, Lot 134) Hyannis, Massachusetts to investigate the report of a civil dispute. Upon arrival, I was met at the rear of 56 Pleasant Street (Assessor's Map 327, Lot 134) , by the complainant and owner of the premises, Maurice McAvoy. At this time, Mr. McEvoy related to me circumstances regarding the eviction status of one of his. tenants at 43 Pleasant Street (Assessor's Map 327, Lot 122) Hyannis, Massachusetts. (E:\92-0135\CAMON] 1 4 . ) During my lengthy conversation with Mr. McEvoy, I asked if there would be any need in the immediate future to go near the tenant's home. Mr. McEvoy responded that he currently owns and operates a parking lot business at 56 Pleasant Street (Assessor's Map 327, Lot 134) as well as 43 Pleasant Street (the tenant's home) . 5. ) Mr. McEvoy advised me that he charges $5.00 per day, per vehicle. Upon payment of the fee, he places a receipt on the dashboard of each vehicle. (This procedure is customary in both lots. ) On each receipt he marks the date on which the owner of the vehicle is expected to return to exit the parking lot. Upon return, the owner of the vehicle must hand the receipt to Mr. McEvoy or to one of his employees, to get the exit date verified. According to Mr. McEvoy, vehicles may not avoid possible overdue charges, due to the fact that Mr. McEvoy barricades the exits of the lots with parked vehicles. 6. ) While on Mr. McEvoy's property at 56 Pleasant Street (Assessor's Map 327, Lot 134) , I observed that there were approximately sixty to seventy registered vehicles parked around the dwelling. Mr. McEvoy advised me that most of these vehicles are parked on his property for an expected duration of three to five days at the rate of $5.00 per day. While conversing with Mr. McEvoy, I observed a customer of the parking lot leaving the (E:\92-0135\CAMERON) 2 premises and advising Mr. McEvoy that he had just locked his vehicle. Signed and sworn to under the pains and penalties of perjury this day of July, 1993. N • David N. eron, rgeant, Barnstable Police Department CE:\92-0135\CAMERON) 3 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. BUILDING COMMISSIONER of the ) AFFIDAVIT OF TOWN OF BARNSTABLE, and the ) SERGEANT TOWN MANAGER of the ) JOHN SWEENEY TOWN OF BARNSTABLE, ) IN SUPPORT OF Plaintiffs, ) PLAINTIFFS' MOTION FOR PRELIMINARY _vs_ ) INJUNCTION. ) MAURICE M. MC EVOY, and ) ROSE ANN MC EVOY, Individually ) and as Trustees of the ) McEvoy Realty Trust, ) Defendants. ) I, JOHN SWEENEY, on oath depose and state as follows: 1. ) I have full knowledge of the facts stated herein and am competent to testify to said facts. 2. ) I am currently employed as a Sergeant with the Town of Barnstable Police Department. 3. ) On Friday, July 2, 1993, at approximately 8:30 A.M. , I drove with Patrolman John Corbett to the area of South and Pleasant Streets in Hyannis, Massachusetts. 4) Across from the Steamship Authority on South Street, I observed a large white house with the number 1186" (Assessor's Map 327, Parcel 137) . On this property, I saw numerous parked cars and a sign which said "Boat Parking Why Pay More? $5.00 per day" . I also observed Mr. Maurice McEvoy standing in the driveway. As I watched, numerous vehicles from South Street pulled up to where Mr. McEvoy was standing, at which point he would write out some type of (E:\92-0]35\SXEZMI 1 ticket and collect money from the drivers. He would then direct them to a location to park. 5. ) At approximately 9:00 A.M. on that date, Patrolman Corbett and I observed and recorded on videotape the arrival of Detective Reid Hall and Rhonda Colburn at 86 South Street. After I saw Detective Hall speaking with Mr. McEvoy, I saw Detective Hall receive a ticket in exchange for money. Then, I saw Mr. McEvoy direct Detective Hall to the rear of the property. Signed and sworn to under the pains and penalties of c'k perjury this day of July, 1993. j Sweeney, Sergeant- table Police Departure [Et\92-0135\SNEENEY] 2 I COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. / BUILDING COMMISSIONER of the ) AFFIDAVIT OF TOWN -OF BARNSTABLE, and the ) DETECTIVE TOWN MANAGER of the ) JAMES S. TAMASH TOWN OF BARNSTABLE, ) IN SUPPORT OF Plaintiffs, ) PLAINTIFFS' MOTION FOR PRELIMINARY -vs- ) INJUNCTION. ) MAURICE M. MC EVOY, and ) ROSE ANN MC EVOY, Individually ) and as Trustees of the ) McEvoy Realty Trust, ) Defendants. ) I, JAMES S. TAMASH, on oath depose and state as follows: 1. ) I have full knowledge of the facts stated herein and am competent to testify to said facts. 2. ) I am currently employed as a Detective with the Town of Barnstable Police Department. 3. ) On Friday, July 2, 1993, at approximately 1:00 P.M. , Barnstable Police Department Clerk Katri K. Korpela and I were assigned to investigate an alleged zoning violation at 86 Pleasant Street (Assessor's Map 327, Parcel 137) , Hyannis, Massachusetts. 3. ) At approximately 1:05 P.M. , Ms. Korpela and I drove into the entrance of 86 South Street (Assessor's Map 327, Parcel 137) , in a private vehicle which belonged to Sergeant David Cameron. Ms. Korpela was operating the vehicle and I was seated in the right front passenger's seat. r . r 4 . ) As we pulled in the entrance, I observed that Sergeant Edward C. Smith was parked across the street. I also observed Patrolman John Corbett standing across the street with video camera pointed in our direction. 5. ) Upon entering the driveway at 86 South Street (Assessor's Map 327, Parcel 137 ) , I observed an elderly woman who .motioned to drive toward the back. After driving approximately -one hundred feet in, we were stopped by two individuals both known to me personally as Maurice "Red" McEvoy and Bill Rosary. 6. ) Mr. McEvoy asked Ms. Korpela how long we would be staying in Nantucket. She replied that we would be returning on Tuesday. Mr. McEvoy then stated that it would be Twenty-Five ($25.00) Dollars to park. Ms. Karpela gave . Mr. McEvoy a Twenty ($20.00) Dollar bill and a Ten ($10.00) Dollar bill. Ms Korpela received five ($5.00) Dollars in change. 7. ) Ms. Korpela then stated to Mr. McEvoy that because the doors of her car did not lock, she would like to park in the front of the lot. Mr. McEvoy replied that this lot was full and directed us to drive out through the gate onto Pleasant Street to the lot directly across from the exit. Mr. McEvoy then handed Ms. Korpela a blue receipt which had printed on it "East End Parking Lot, Pleasant Street, Hyannis" . In the space marked "IN, OUT" he had written in red "Tus" and below that "25" . He asked Ms. Korpela to "put this on your dash. " 2 r 8. ) Following Mr. McEvoy's directions, Ms. Korpela and I drove out the exit onto Pleasant Street and entered a lot on the westerly side of the road, directly north of number 63 Pleasant Street. We were met by an individual known only to me by the last name of "Beasley" who directed us into a parking space. .9. ) On July 4, 1993, I met with Sergeant David Cameron. He advised me that he had returned to the lot on Pleasant Street and had retrieved his car. He further stated that he had been given a refund of Fifteen ($15.00) Dollars. He then gave me the blue receipt which we had left on the dashboard of his vehicle. Signed and sworn to under the pains and penalties of perjury this arm day oArnsta 1993. 1-4 Y Tamash, Detective, le Police Department 3 i ARTICLE XX. UNREGISTERED MOTOR VEHICLE OR TRAILER REGULATION No person shall have more than one (1) unregistered motor vehicle ' or trailer or any part or portion thereof, ungaraged on premises owned, occupied or controlled by him at anytime. This ordinance shall not apply to any vehicles used for agricultural purposes nor shall it apply to premises duly licensed under the provisions of Chapter 140 of the General Laws. Any person failing to remove such vehicle or vehicles, or any part or portion thereof, within seven (7) days, after notice by the Police Department of the town, shall be subject to a fine of not more than fifty dollars ($50.00) . Each day during any portion of which violation is permitted to exist, shall constitute a separate offense. Adopted March 8, 1967. Approved April 27, 1967. Amended October 23, 1969. Approved December 17, 1969. �- j r i a �• i j 7 { The Town of Barnstable FILE COPY • eaaxsr"E. • KA .1639. Office of Town Manager c ru►+" 367 Main Street, Hyannis MA 02601 Office: 508-790-6205 James D.Tinsley, Town Manager Fax: 508-790-6226 Mary Jacobs,Assistant Town Manager August 18, 1997 Christopher Keys Gifford Brothers,Inc. 810 Wakeby Road Marstons Mills, MA 02648 Dear Mr. Keys: The Town of Barnstable has recently reviewed Chapter III,Article)(III of the Town's General Ordinances-- Removal of Soil, Sand and Gravel and Sand Pits as it affects all existing soil, sand and gravel removal operations within the Town of Barnstable. As you were previously notified by the former Town Manager,we have found that your operation at 810 Wakeby Road,Marstons Mills is not permitted as required. In accordance with the terms of Chapter III,Article XIII,the Town of Barnstable has established the following procedures for the issuance of such permits and renewals,and requests that you immediately make application to the Town to initiate the permit process set forth below. You are advised that all landowners whose operations are governed by Chapter III,Article XIII are being similarly notified of the requirement for a permit and the application process involved. Town officials are interested and available to provide assistance to you as you proceed through the application process. The process is as follows: 1. Informal meeting with appropriate town officials to discuss the application process so that you may have a full understanding of the procedures. 2. Completion of the Site Plan Review application submitted to the Town Manager,who will refer it to town staff for their review and recommendations through the Site Plan Review process. 3. Town staff forward recommendations to the Town Manager for his consideration in issuing the permit. 4. Town Manager holds a public hearing as outlined in the General Ordinances. 5. Upon the close of the public hearing,the Town Manager issues a determination on the application. s For your convenience,I have included a permit application, a copy of the administrative procedures for this permit,an application for site plan review, and a copy of the ordinance. Please call Mary Jacobs,Assistant Town Manager, at 790-6205 to schedule a meeting with her and other town officials to review the procedure for obtaining this necessary permit. I appreciate your compliance with this permit requirement. Sincerely James D. Tinsley Town Manager c: Harriet P. Hayward William Gifford a . The Town of Barnstable K Office of Town Manager tss9. +' 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. 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. 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 5,600 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 5. 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. Amended May 18, 1976. Approved September 13, 1976. Fine amount changed. I - Unmantordt# of Masoor4uBleffs BARNSTABLE, ss. SUPERIOR COURT No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC. VS. ZONING BOARD OF APPEALS, TOWN OF BARNSTABLE FINDINGS 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 Barnstable'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 running north some 1,550 plus feet from its frontage on Wakeby Road. 1 3. Lorenzo Thatcher("L.T.") Gifford, acquired the Property by deed from his uncle, Charles Gifford, in 1945. 4. In 1945, 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. 8. 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 such 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. 2 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-way back from Wakeby Road. Near to Wakeby Road, buildings were erected to accommodate the repair and salvage business. A welding shop was maintained in the buildings. The repair and salvage trade was a use secured by variance from the Zoning Board in 1964. 10. During the Giffords' tenure, portions of the Property were leased to 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. 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 150,000 tons of gravel was removed. The northwest quadrant 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 3 Mockingbird Lane. The buffer of trees between the excavation and the property line was removed. Families living along the southwest side of Mockingbird 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 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 land 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 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. (Exhibit no. 9). 4 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 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." [Exhibit no. 31]. 19. On May 9, 1997, the building 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]: 20. 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 gravel pit and to stop the processing of fill, the screening of fill, and the depositing of fill, brush and clippings [Exhibit no. 2] 21. From the latter Order, plaintiff took an appeal to the Board. After appropriate hearings, the Board issued its written decision on January 27, 1998 upholding the building commissioner [Exhibit no. 17]. The present action followed in its wake. 5 22. The Board found, inter alia, that: . . . (TIhere 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 plaintiff's 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 Mass. 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 novo in accordance with the mandate of the statute and case law. G.L. c. 40A § 17; 39 Joy Street Condominium Assn v. Board of Appeal of Boston, 426 Mass. 485, 488 (1998). 4. The Board first argues that the Property 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 by-law. Interestingly enough, the Board seems to have ignored the 1929 by-law in its own decision, having ruled that zoning fast 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 was 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 (1954). 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 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. i 7. During the post-World War H building boom, the suburban towns of Massachusetts gave rise to a flurry of appellate decisions on the application of zoning law to gravel pits. Town of Wayland v. Lee, 331 Mass. 550 (1954) ("Wayland If'); 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. In 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 eastern 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 1935, 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- conforming 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 i 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, 712 (1990). � I 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 iWoore 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 land itself is an asset, which by the very nature of the operation, diminishes over time. The use 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 II: "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 Appeals, 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 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. j Louis County Planning Commission, 1999 WL 10241 (Minn-App. Jan 12, 1999). Other states i 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). 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. "[I]n 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).' 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 552. 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 ' It is interesting to note that plaintiff here relies on the Moore case. 10 than allowing the use of a diminishing asset to be determinative. See Wayland I1, 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 removal, remains the same as pre-1956 operations. Compare First Crestwood Corp. v. Building Inspector of Middleton, 3 Mass. App. Ct. 234, 236 (1975). Plaintiff fails, however, to prove that the quality, character and degree remain unchanged. As noted above, plaintiff failed to show any objective intent to use the entire property for gravel mining. The area devoted to the gravel pits at the adoption of the 1956 by-law was limited to the approximately five acres of cleared area in the southernmost portion of the property [See Exhibit no. 25]. Plaintiffs current day operation far exceeds the use as it existed in 1956. 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." Chuckran, supra, at 712. To the contrary, the Town has shown that the surrounding property owners have borne 11 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. lvfurphy, 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 of N. Attleborough, 353 Mass. 671, 675 (1968). Plaintiff's first argument must therefore fail. 13. Plaintiff's 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 Ciry, 438 U.S. 104 (1978); Nectow v. City of Cambridge, 277 U.S. 183 (1928); Kilgour v. 12 i 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 right to mine that portion of the site appropriated to gravel mining as of 1956. That area is best described 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 Il, 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 ORDER It is therefore ORDERED that Judgment enter AFFIRNIING 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 A .Nickerson Rhlice of the Superior Court DATED: June 25, 1999 A A 14 Cleric Y �Qt1iIltIItt1UP D� ��B��C�i1S>Q1fB BARNSTABLE, ss. SUPERIOR COURT No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC. VS. ZONING BOARD OF APPEALS, TOWN OF BARNSTABLE FINDINGS 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 Barnstable'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 running north some 1,550 plus feet from its frontage on Wakeby Road. I r 3. Lorenzo Thatcher("L.T.") Gifford, acquired the Property by deed from his uncle, Charles Gifford, in 1945. 4. In 1945, 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. T. 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. 8. 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 such 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. 2 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-way back from Wakeby Road. Near to Wakeby Road, buildings were erected to accommodate the repair and salvage business. A welding shop was maintained in the buildings. The repair and salvage trade was a use secured by variance from the Zoning Board in 1964. 10. During the Giffords' tenure, portions of the Property were leased to 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. 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 150,000 tons of gravel'was removed. The northwest quadrant 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 3 Mockingbird Lane. The buffer of trees between the excavation and the property line was removed. Families living along the southwest side of Mockingbird 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 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 land 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 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. (Exhibit no. 9). 4 F 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 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." [Exhibit no. 3l]. 19. On May 9, 1997, the building 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]. 20. 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 gravel pit and to stop the processing of fill, the screening of fill, and the depositing of fill, brush and clippings [Exhibit no. 2]. 21. From the latter Order, plaintiff took an appeal to the Board. After appropriate hearings, the Board issued its written decision on January 27, 1998 upholding the building commissioner [Exhibit no. 17]. The present action followed in its wake. 5 I 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 RedevelopmentAuthy., 4 Mass. 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 novo 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 Property was governed by the 1929 zoning by-law, and therefore the gavel 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 I 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 was 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 (1954). 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 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 lI building boom, the suburban towns of Massachusetts gave rise to a flurry of appellate decisions on the application of zoning law to gravel pits. Town of Wayland v. Lee, 331 Mass. 550 (1954) ("Wayland If'); 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. S. In 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 eastern 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 198'5, 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- conforming 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 r 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, 712 (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 Moore 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 land itself is an asset, which by the very nature of the operation, diminishes over time. The use 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 IT "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], 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 Appeals, 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 I 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). 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 II cases. See Township of Fairfield, supra, at 329, quoting Moore, supra. "[Iln 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 552. 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 ' It is interesting to note that plaintiff here relies on the Moore case. 10 than allowing the use of a diminishing asset to be determinative. See Wayland I1, 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 i concludes that plaintiff has not proven a permissible expansion of its nonconforming use on the j Property. This court does agree with plaintiff that the nature and purpose of the use, i.e. t commercial gravel removal, remains the same as pre-1956 operations. Compare First Crestwood Corp. v. Building Inspector of Middleton, 3 Mass. App. Ct. 234, 236 (1975). Plaintiff fails, however, to prove that the quality, character and degree remain unchanged. As noted above, plaintiff failed to show any objective intent to use the entire property for gravel mining. The area devoted to the gravel pits at the adoption of the 1956 by-law was limited to the approximately five acres of cleared area in the southernmost portion of the property [See Exhibit no. 25]. Plaintiff s current day operation far exceeds the use as it existed in 1956. 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." Chuckran, supra, at 712. To the contrary, the Town has shown that the surrounding property owners have borne 11 t r 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 right to mine that portion of the site appropriated to gravel mining as of 1956. That area is best described 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 f - - Y 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 Jdsfice of the Superior Court DATED: June 25, 1999 A A t 14 �� Clerk r . S COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC., Plaintiff, DEFENDANTS' TRIAL BRIEF V. EMMETT F. GLYNN, RON S. JANSSON, GENE BURMAN, RICHARD L. BOY, ) GAIL NIGHTINGHALE, ELIZABETH ) NILSSON, THOMAS A. DERIEMER, ) DAVID RICE, and KEVIN MINNIGERODE,) as they are Members and Alternate ) Members of the TOWN OF BARNSTABLE ) ZONING BOARD OF APPEALS, ) Defendants. ) I. INTRODUCTION. This zoning appeal was filed pursuant to G.L. c. 40A, s. 17 and involves a decision by the Barnstable Zoning Board of Appeals upholding 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 previously - issued variance and special permit. The Plaintiff, claiming some type of ownership interest in the locus through its principal, Christopher Keyes, has within the last several years engaged in intensive commercial activity on the property including the manufacturing of loam, the land-filling of construction and demolition materials, and leasing of the land for other commercial activities, notwithstanding the issuance of a cease and desist order by the Building Commissioner and the issuance of a preliminary i' injunction by this Court. These illegal activities have subjected the neighbors to a barrage of noise, dust and vibrations emanating from the site. As is more fully delineated below, The Plaintiffs request to overturn the decision should be denied and the Board's decision affirmed in all respects because it cannot establish a legal pre-existing nonconforming use of the premises for a sand and gravel pit, loam manufacturing operation, and vehicle storage facility. II. STATEMENT OF CASE. The subject premises, comprised of 16.6 acres, is located in an RF (residential) zoning district where the principal permitted use is a detached single family dwelling. The renting of rooms to not more than three non-family members is permitted as an accessory use. (Exhibit 3A). The locus is subject to several special permits and variances issued in the 1960's. Specifically, the Applicant, L. Thatcher Gifford, on or about March 23, 1964, applied for a variance to conduct a parts/salvage business on the locus. (Exhibit 13). 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. Nowhere.in the Petition to the Board of Appeals or in the Decision of the Board of Appeals 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. 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 p 9 P vehicles, the Giffords, through their attorney, listed "Metal salvage" as the present use of Page 2 the premises and the proposed used as "used auto parts." (Exhibit 15). The board's decision states that the purpose for the relief is "... to permit the extension of a non- conforming use by the construction of a building and to include the sale of used auto parts and second hand vehicles." (Exhibit 16). Neither the 1969 application nor the special permit granted makes any mention of the existence or continuation of the sand and gravel operation. However, the Board in its decision does find that "[b]ecause of the large acreage owned by the Petitioners, which surrounds the salvage yard operation, the Board feels that it is not detrimental to the neighborhood" (Exhibit 16) which gives further credence to the argument that, through their exercise of the special permit, whatever rights the property-owners may have had to a sand and gravel operation, were abandoned.' In December of 1995, Gifford Brothers Sand and Gravel, Inc. 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. On July 3, 1996, the Plaintiff sought and obtained an ex parte temporary restraining ordering "... Building Commissioner for the Town of Barnstable and Town Manager for the Town of Barnstable and your agents, attorneys, and counselors, and each and every Interestingly, the special permit is"...restricted to that period of time which the Petitioners or the Tenant retain ownership of the 16 acre parcel"which means that if neither William or Maynard currently retain an. ownership interest in the parcel, the special permit has lapsed. Page 3 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 Meigs Road, Sandwich, Barnstable County, Massachusetts. IT IS FURTHER ORDERED that said defendants and your agents, attorneys and counselors, and each and every one of them shall desist and refrain from interfering with the removal of materials for use by 44 Gravel and Sand, Inc. pursuant to a public contract with the Town of Barnstable." Subsequent to the issuance of the restraining order, the parties entered into a stipulation agreeing not to interfere with Gifford Sand and Gravel, Inc.'s fulfillment of its contract with 44 Sand and Gravel, Inc. provided that Plaintiff made application for a permit under the town's general ordinances, Chapter II, Article XIII.2 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." (Exhibit 1). 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. (Letter attached to Exhibit 2). 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 3-1.4. These uses must immediately CEASE AND DESIST." 2 Although the town asserts that the Plaintiff failed to complete the application process, this case is now moot because the contract has been completed. Page 4 Gifford Sand and Gravel, Inc., through its principal Chris Keyes, appealed the Building Commissioner's decision. After two days of hearings, the Board upheld the decision of the Building Commissioner. Thereafter, the Plaintiff commenced this appeal under G.L. c. 40A, §17. Notwithstanding the Board's decision, Plaintiff continued and intensified the panoply of commercial activities on the lot. Several town officials, including the building commissioner, visited the site and observed a loam manufacturing operation taking place in closer proximity to the residential abutters. 'On or about October 14, 1998, the Defendants filed a Motion for Preliminary Injunction. After hearing, on October 22, 1998, this Court issued an order restraining the herein Plaintiff from "...engaging in activities other than those lawfully permitted on the premises located at 810 Wakeby Road, Barnstable (Marstons Mills), Barnstable County, Massachusetts. III. ARGUMENT. A. Standard of Review. The task of the Superior Court in reviewing a decision under M.G.L. c. 40A, s. 17 is to determine whether the applicant is able to demonstrate in a hearing de novo3/that the Board of Appeals has based its decision on legally untenable ground or is unreasonable, whimsical, capricious or arbitrary. Prudential Insurance Co. of America v. Board of Appeals of,Westwood, 23 Mass.App. 278 (1986); Parseghian v. Board of the 3/ It has been held that the decision of the Board of Appeals cannot be considered as evidence. Josephs v. Board of Appeals of Brookline, 362 Mass. 290 (1972). "As to matters of fact, it is the duty of the reviewing court to receive evidence and to find facts without according to any weight of the facts found by the board." Lomelis v. Board of Appeals of Marblehead, 17 Mass. App. Ct. 962 (1983). Page 5 Zoning Appeals of Cambridge, 7 Mass. citing Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277 (1979). 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. Zaltman v. Board of Appeals of Stoneham, 357 Mass. 482, 484 (1970). To hold that a decision of the board is arbitrary and capricious per se whenever the board, on the facts found by the trial judge, could have reached a different result would eliminate the board's intended discretion. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. at 277-278. B. Applicable Zoning Provisions. The principal permitted use in the RF is a detached single family residential dwelling. Renting or rooms to not more than three non-family members is a permitted accessory use. Specifically, the use regulations for the F Residential District are as follows: 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.10 Page 6 I ` 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) Home Occupation, subject to all the provisions of Section 4-1.4(2), Home Occupation by Special Permit. (Sections a-g deleted by vote 08117195 - item 95-195 by an 8 YES 2 ABSTAIN vote of Town Council). B) Renting of rooms to no more than six (6) lodgers in one (1) multiple-unit dwelling. C) Public or private regulation golf courses subject to the provisions of Section 3-1.1(3)(B) herein. D) Keeping, stabling and maintenance of horses in excess of the density provisions of Section 3-1.1(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 3-1.1(3)(D) herein. F) Windmills and other devices for the conversion of wind energy to electrical'or mechanical energy, but only as an accessory use. G) Bed and Breakfast operation subject to the provisions of Section 3- 1.1(3)(F). Added by a 9 Yes 2 No Vote of the Barnstable Town Council on Feb. 20, 1997). The Barnstable Zoning Ordinance defines and regulates the change and expansion of non-conforming uses as follows: 4-4.5 Nonconforming Use: A pre-existing nonconforming use shall be limited in the extent it may expand or intensify. A pre-existing nonconforming use may be changed to a Principal Permitted Use as-of-right. A pre-existing nonconforming use may be changed to a conditional use by special permit as provided for within the zoning district in which it is located, or to another nonconforming use as provided for herein. Page 7 1) Change of a Nonconforming Use to Another Nonconforming Use: A pre-existing nonconforming use may be changed to another nonconforming use only by special permit from the Zoning Board of Appeals. In granting a special permit for the change of a nonconforming use, the Board must find that the proposed nonconforming use is no more detrimental to the neighborhood and that all of the following requirements are met: A) The applicant has received all necessary approvals from the Board of Health. B) The proposed nonconforming use: (1) requires no more parking than the previous use; (2) does not generate more traffic than the presious use, as measured by the Institute of Transportation Engineers Trip Generation Handbook or other sources acceptable to the Zoning Board of Appeals, nor does it cause Town expenditures to address traffic mitigation measures; (3) does not result in an increase of on-site and off-site noise, dust, and odors; (4) does not result in an increase in the hours of operation or in the number of tenants or employees; (5) does not expand the gross floor area of the nonconforming use, except as may be provided in Section 4-4.4(2), nor does it increase the number of nonconforming uses on a site; (6) is on the same lot as occupied by the nonconforming use on the date it became nonconforming; and (7) is not expanded beyond the zoning district in existence on the date it became nonconforming. 2) Expansion of a Pre-Existing Nonconforming Use: A pre-existing nonconforming use shall not be expanded and/or intensified except by special permit from the Zoning Board of Appeals. In granting a special permit for expansion of a pre-existing nonconforming use, the Board must find that the proposed expansion, and/or intensification will not be more detrimental to the neighborhood and that the following requirements are met: A) Any proposed expansion of the use shall conform to the established setbacks for the zoning district in which it is located, or such greater setbacks as the Zoning Board of Appeals may require due to the nature of the use and its impact on the neighborhood and surrounding properties. B) The proposed use and expansion is on the same lot as occupied by the nonconforming use on the date it became nonconforming. Page 8 I C) The proposed new use is not expanded beyond the zoning district in existence on the date it became nonconforming. D) At the discretion of the Zoning Board of Appeals, improvements may be required in order to reduce the impact on the neighborhood and surrounding properties including but not limited to the following: 1) greater conformance of signage to the requirements of Section 4-3; 2) the addition of off-street parking and loading facilities; 3) improved pedestrian safety, traffic circulation and reduction in the number and/or width of curb-cuts; 4) increase of open space or vegetated buffers and screening along adjoining lots and roadways. The applicant shall demonstrate maximum possible compliance with Section 4-2.6 Landscape Requirements for Parking Lots, paragraph 6, if applicable. 5) accessory uses or structures to the principal nonconforming use, may be required to be brought into substantial conformance with the present zoning. (Amended by unanimous roll call vote of the Town Council of item 99-056 on Mar. 11, 1999) The zoning ordinance specifically states that a use allowed through a variance does not become a nonconformity. 4-4.7 Variance Situations: Situations which exist pursuant to the duly authorized grant of a variance from the terms of this Zoning Ordinance as provided for in Section 5- 3.2(3) and Section 5-3.2(5) shall not constitute nonconformities for the purposes of this Zoning Ordinance. Under the zoning ordinance the property-owner's actions can result in the loss of a protected nonconforming use as follows: 4-4.8 Abandonment; Non-Use: Any lawful pre-existing nonconforming use or building or structure or use of land which has been (i) abandoned or (ii) not used for 3 years, shall not thereafter be re- established. This section shall not apply in cases of damage or destruction governed by section 4-4.6. Page 9 I (This Section 4-4 was amended by Town Council vote on November 2, 1995 as item #95-198) The pertinent parts of G.L. c. 40A, §6, which involves legal pre-existing nonconforming uses: §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. re-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 substantially more detrimental than the existing nonconforming use to the neighborhood. This section shall not apply to billboards, signs and other advertising devices subject to the provisions of sections twenty-nine through thirty-three, inclusive, of chapter ninety-three, and to chapter ninety-three D or 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. C. The Decision of the Board of Appeals in this Case in Upholding the Decision of the Building Commissioner that the Only Permitted Uses of the Premises is Single Family Residential Use and Salvage Yard, Provided that the Terms of the Previously-Issued Permits are complied with was Correct as a Matter of Law.. 1. The Plaintiff has Failed to Meet its Burden that the Sand and Gravel Pit and other Non-Complying Uses Taking Place on the Premises are Legal, Pre- Existing Non-Conforming Uses. Page 10 r The burden rests with the Plaintiff to produce evidence that the requisites of zoning have been met. Tamerlane Realty Trust v. Board of Appeals of Provincetown, 23 Mass. App. 450, 454 (1987). Because the statutory meaning of the phrase "nonconforming use" as used in G.L. c. 40A, §6 and the town of Barnstable ordinance encompasses a use in existence prior to 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), the Plaintiff herein must show, first, that the sand and gravel pit use was lawful when begun and has 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. Kendrick, 17 Mass. App. Ct. 928, 929 (1983); Selectmen of Wrentham v. Monson, 355 Mass. 715, 716 (1969). Clearly, the statutory framework which permits the continuance of an existing use does not protect every prior use irrespective of the time of the circumstances under which it came into existence. See Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527 (1990). 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, Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205, 223 (1982). The first zoning bylaw was adopted within the town of Barnstable on June 14, 1929 and approved on July 2, 1929 (Exhibit 9). The bylaw, appearing as "Article V in the town's building laws, stated as follows: 4/Also, the Plaintiff must so demonstrate for any other use it claims is a pre-existing nonconforming. Page 11 i 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. The town of Barnstable Zoning Map approved by the Attorney General on August 21, 1950, indicates that the subject locus continued to be zoned by the bylaw which went into effect on June 14, 1929. The Plaintiff has produced no evidence to indicate that the subject locus was in commercial (business or industrial) use prior to June of 1929 and as such has clearly failed to meet its burden of proving that the use of the locus as a sand and gravel pit and the menagerie of other unpermitted uses which are currently taking place on the premises lawfully began before 1929 and continued, without being abandoned through the present. Having failed to meet this burden, the Plaintiff posits a number of theories Page 12 as to why it should be relieved of the burden of so proving, none of which are supported by law or fact. First, Plaintiff has argued in its pretrial memorandum, that the Board in its decision found that there was a legal pre-existing use as a sand and gravel pit. However, such an argument completely ignores the de novo hearing requirement of an appeal under G.L. c. 40 s. 17. It has been held that the decision of the Board of Appeals cannot be considered as evidence. Josephs v. Board of Appeals of Brookline, 362 Mass. 290 (1972). More importantly, the Board's decision, under paragraph 6, explicitly states "...No findings are made as whether or not it [the pit] was ever a legal pre-existing non- conforming use." The Board's findings go on to state that whatever sand and gravel use existed on the premises, albeit legal or illegal, such use had been abandoned by the actions of the property owner. Second, the Plaintiff urges that an interoffice memorandum from the building commissioner to the office of the Town Attorney dated March 5, 1995 in which the building commissioner provides a cursory answer to a casual inquiry to the effect that the subject locus contained a sand and gravel pit which he believed was pre-existing nonconforming, somehow binds the town forever. However, contrary to the Plaintiff's contention, a municipality is not estopped from enforcing its zoning ordinance because public officials have erroneously issued permits or decisions in the past. Ferrante v. Board of Appeals of Northampton, 345 Mass. 158 (1962). Finally, the Plaintiff argues that the contract between 44 Sand and Gravel, Inc. and the town of Barnstable to supply materials for the capping of the landfill somehow obligated the town to allow in perpetuity the use of the subject locus as a sand and Page 13 gravel pit and for whatever other commercial uses that the Plaintiff wants to conduct. What is most stunning about Plaintiffs argument is that Plaintiff acknowledges that it sought injunctive relief against the town to prevent the town from refusing sand and gravel from 44 Sand and Gravel, Inc. that came from the subject locus. Because, pursuant to Plaintiffs request for injunctive relief, the town entered an agreement with Plaintiff to temporarily forebear from rejecting sand from the subject locus based solely on non-compliance with the town's general ordinance applicable to sand and gravel removal, the Plaintiff now argues that the town is forever estopped from enforcing its zoning. In this regard, the Plaintiffs assertion of an estoppel theory is particularly curious in that courts have refused to apply principles of estoppel even under circumstances where property owners have asserted that they have incurred great expense relying on the representations of public officials. 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 case at bar, there was reliance on Plaintiffs part that was beneficial rather than detrimental in that by Plaintiffs own admission, it received close to Four Hundred Thousand ($400,000.) Dollars from 44 Sand and Gravel, Inc., due to the town's contract. While the residential abutters were subjected to a barrage of noise and dust from the illegal commercial activity, the Plaintiff received a windfall. None of the Plaintiffs arguments overcome the Plaintiffs failure to demonstrate that the multiplicity of commercial uses now being engaged in on the premises are illegal and not legal, pre-existing non-conforming uses. Page 14 f 2. Assuming Arguendo That the Plaintiffs Predecessor's Use of the Property Was a Legal Pre-Existing Nonconforming Use, Which Pre-Dated the Establishment of The Applicable Zoning By-Law in The Town of Barnstable, Said Use Was Discontinued Or Abandoned For A Period of Three Years And, Therefore, Required A Special Permit In Order To Be Re-Established Or Resumed. Assuming arguendo that the Plaintiff, through his predecessors in interest, can establish the existence of a continuous use of sand and gravel excavation from 1929, the date of the enactment of the zoning by-laws to 1964, said use was subsequently discontinued and abandoned, and therefore, required a special permit from the Board of Appeals to be re-established or resumed. Prior to the effective date of the amended version of G.L. c. 40A, §6 which authorized towns and cities outside Boston to adopt an objective standard of mere cessation of use for a period of at least two years to properly extinguish nonconforming uses, the Massachusetts Appellate Court stated that the term "discontinued," as used in many ordinances and by-laws of cities and towns outside Boston, amounted to the equivalent of"abandoned." Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664, 667 (1987). The Zoning By-law in effect in the town of Barnstable in 1964 pertaining to the discontinuance or abandonment of legal pre-existing nonconforming uses was Article III, Chapter III, D.3. (b) which stated "No 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." (See copy of Article III, Chapter III, D.3.(b) of the 1964 Town of Barnstable Zoning By-laws, attached hereto as Exhibit 10). 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 was Article III, Chapter III, P.A.6 Page 15 i which stated "The Board of Appeals may grant a special permit for the following exceptions to the zoning by-law: ... 6. Re-establishment of a nonconforming use which has been discontinued for three (3) years." Therefore, it is clear that discontinuance, as the term is employed in the two above-cited by-laws in effect in the Town of Barnstable in both 1964 and 1969, was the equivalent of abandonment, and, at least prior to July 1, 1978, required both the intent to abandon and some voluntary conduct, whether affirmative or negative, carrying with it the implication of said abandonment. Pioneer Insulation & Modernizing Corp. v. Lynn, 331 Mass. 560, 565 (1954). The Town of Barnstable Board of Appeals Decision Appeal No. 1961-41, which, after public hearing held on November 30, 1961, denied a request for a variance from the provisions applicable to property located in a Residence D-3 Zone 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) (Exhibit 12). In 1961, the petitioners, whom are predecessors in title and interest to the Plaintiff 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. Under the two-prong test, this statement is direct evidence of the intent to abandon and voluntary conduct carrying with it the implication of abandonment. Id. Page 16 Barnstable Board of Appeals Decision Appeal No. 1964-18, which, after public hearing held on April 23, 1964, granted a request for a variance from the restrictions applicable to property located in a Residence D-3 Zone to permit the use of the premises for the salvage of vehicles and storage of used parts, 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], (See Appeal No. 1964-18), (Exhibit 14). The Plaintiff relies on this language in Decision Appeal No. 1964-18 to support the proposition that the property was being used as a gravel pit in 1964. This reliance, however, is misplaced. There is an important distinction between the language contained in Appeal No. 1961-41 and Appeal No. 1964-18. Appeal No. 1961-41 states that part of the property had previously been used as a sand pit. Clearly, the 1961 decision references a prior use of the property. The 1964 decision, Appeal No. 1964-18, references no such use. It merely states that the petitioner was proposing to locate the newly proposed auto salvage use in a location on the premises described as "a gravel pit near Wakeby Road in Marstons Mills." The mere existence of an area on a property which people, including the petitioner, referred to, or described as, a "gravel pit," does not establish the fact that the area was then currently being used as such. Also, in the alternative, the fact that the petitioner was requesting to locate the newly proposed use in the existing gravel pit strongly suggests that the newly proposed use, as granted, replaced any gravel pit use that may have previously existed there. This, too, is strong evidence that the prior use, if any, was being abandoned as of the time of the 1964 Petition. Id. Page 17 r I Assuming, however, for the sake of argument, that the Plaintiff can establish a legal pre-existing nonconforming use that continued without cessation from before the establishment of the Town of Barnstable Zoning By-laws to 1964, it is clear from subsequent petitions to, and decisions of the Board of Appeals, that said use was subsequently discontinued or abandoned, and, therefore, required a special permit in order to be legally re-established or resumed. Town of Barnstable Zoning By-laws Article III, Chapter III, D.3.(b), 1964. The Zoning By-law in effect in the town of Barnstable in 1964 pertaining to the discontinuance or abandonment of legal pre-existing nonconforming stated "No 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." Assuming arguendo that Plaintiff can establish, through the language contained in Item No. 7 of its predecessor's Petition to the Board of Appeals in Appeal No. 1964-18, that Plaintiff's predecessor's use was a legal pre-existing nonconforming use as of the date of his Petition, March 23, 1964, said use was subsequently discontinued and abandoned. 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). 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. Nowhere in the Petition to the Board of Appeals made by the Plaintiff's predecessor or in the Decision of the Board of Appeals granting said Petition, is there any indication, express or implied, that the present use of the premises as stated in the Page 18 Petition, "Gravel pit bordering road." was to be continued along with the newly requested and granted use of parts-salvage under license. Therefore, this, too, is further evidence that as of March 23, 1964, the Plaintiffs 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, and, (3) had voluntarily failed to state that the new proposed use would include any such prior use. Id. The next Petition to the Board of Appeals concerning the premises was made by William Gifford and Maynard Gifford on February 27, 1969, through their attorney John P. Curley, Jr. 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 "The Board of Appeals may grant a special permit for the following exceptions to the zoning by-law: . . . 6. Re-establishment of a nonconforming use which has been discontinued for three (3) years." The Petition requested permission to extend the nonconforming use by constructing a building for the sale of used auto parts and second hand vehicles. The Petition submitted stated in pertinent part 7. State present use of premises: Metal Salvage; 8. State proposed use of premises: Used auto parts." (See copy of Petition for Variance dated February 27, 1969), (Exhibit 14). The Town of Barnstable Board of Appeals Decision Appeal No. 1969-17, which, after public hearing held on May 7, 1969, granted a request for a variance from the provisions applicable to property located in a Residence D-3 Zone to permit the construction of a larger structure in order to extend the nonconforming use granted in 1964 of parts-salvage to include the sale of used auto parts and second-hand vehicles, contains no indication of a gravel or sand pit use. (See Exhibit 15). Therefore, as of 1969, the Plaintiffs predecessors were Page 19 no longer claiming any use of the premises relating to sand or gravel mining or excavation. Again, here, too, is clear evidence that, as of 1969, any 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. The petitioners intended, both in 1964 and, later, in 1969, to have abandoned any use of the premises as a sand or gravel pit. Id. Also of importance is the petitioner's counsel's description of the premises in support of the requested variance, which was granted in Appeal No. 1969-17. The Town of Barnstable Board of Appeals Decision Appeal No. 1969-17 stated, in pertinent part, "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 surrounded by woods on three sides and the power line on the back." [Emphasis added]. Therefore, it is clear that in 1969, by the Plaintiff's predecessor's own characterization of the parcel, the location of the salvage operation was to be located in an area on the property surrounded by woods and bordered by the power line easement on the back. No mention is made in 1969 of any gravel pit or sand pit on the property and, from said description, it is clear that the parcel was still heavily wooded and not being used as a sand or gravel pit. The 1969 Petition to the Board of Appeals and Decision of the Board of Appeals fails to refer, even tangentially, to the existence of anything on the premises remotely related to a sand or gravel pit use. This fact, taken together with the fact that the 1964 Petition did, in contrast, specifically refer to the present use of a gravel pit bordering the road, but failed to request a newly proposed joint or simultaneous use of"Parts-salvage Page 20 i under license" and some other joint use related to the excavation of sand or gravel, clearly supports the conclusion that, as of 1964 and later 1969, under both the 1964 and the 1969 versions of the Town of Barnstable Zoning By-laws, the prior use had been discontinued and abandoned. After such an abandonment, the Plaintiff or his predecessor[s] in title or interest, were required under the Town of Barnstable Zoning By- laws to obtain a special permit in order to legally re-establish or resume the previously discontinued and abandoned nonconforming use, if any. The factual situation presented in this case is directly analogous, and virtually indistinguishable from that presented in the case of Ka-HurEnterprises, Inc. v. Z.B.A. of Provincetown, 424'Mass. 404 (1997). In Ka-Hur, both the Massachusetts Appellate Court and the Supreme Judicial Court upon further review held that, where the Plaintiffs 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 Plaintiffs attempt to re-establish the earlier nonconforming use was properly held to require a special permit from the defendant Board of Appeals because the Plaintiffs predecessor had changed the use and had, therefore, discontinued or abandoned the prior nonconforming use. See Ka-HurEnterprises, Inc. v. Z.B.A. of Provincetown, 424 Mass. 404 (1997) "The judge in the Land Court found that after [Plaintiffs predecessor] acquired the property the use of the premises for storage as a fuel oil storage and distribution facility was ancillary to [Plaintiffs predecessor's] fishing and truck repair business. Accordingly, the judge ruled that the non-use of the property for the primary purpose of a fuel oil storage and distribution center for more than two years resulted in Page 21 i the loss of its protected status as a prior nonconforming use pursuant to the provisions of Art. II, §2130, of the by-law and G.L. c. 40A, §6." Ka-Hur Enterprises, Inc. v. Z.B.A. of Provincetown, 40 Mass. App. Ct. 71, 73 (1996). Art. ll, §2130 of the by-law of the Town of Provincetown related to discontinuation or abandonment of a non-conforming use. Id. at 72. The Appeals Court agreed with the decision reached by the Land Court and found that the change in primary use resulted in an abandonment or discontinuance of the nonconforming use such that it lost its protected status under G.L. c. 40A, § 6. Upon further review the Supreme Judicial Court upheld this interpretation as proper. "The Appeals Court reviewed the evidence and found that the property was primarily used to conduct a fishing business and store and repair trucks during the period of Nauset's ownership. As such, there was a "change or substantial extension" of the prior nonconforming use which caused the property to lose its protection as a pre-existing nonconforming use." Ka-Hur Enterprises, Inc. v. Zoning Board of Appeals of Provincetown, supra at 74. The Appeals Court found the evidence sufficient to support the judge's conclusion regarding this loss of protected status, id., as do we. Ka-Hur Enterprises, Inc. v. Z.B.A. of Provincetown, 424 Mass. 404, 407 (1997). It is the Plaintiffs burden to prove the 'requisite similarity' in use to show there was no change in the property's employment and the judge was warranted in finding this burden unmet." Ka-Hur Enterprises, Inc. v. Z.B.A. of Provincetown, 424 Mass. 404, (1997). The factual situation as present in Ka-Hur could not be more similar to the instant case. Just as the Plaintiff in Ka-Hur, the Plaintiff in the instant case attempts to re- establish a use that had been abandoned by virtue of a change in primary use by relying on its claimed protected status as a pre-existing nonconforming use. The evidence Page 22 recited above clearly shows that in the 1960's the Plaintiffs predecessors had changed i the primary use of the property from sand and gravel extraction to auto salvage and used auto parts sales. At the time of this change, the Plaintiffs predecessors abandoned the prior pre-existing nonconforming use of sand and gravel extraction. It was at this time that the use lost its protected status as a nonconforming use. Therefore, in order for the Plaintiff to have properly re-established this earlier abandoned use, it must have obtained a special permit from the defendant Board of Appeals. This failure by the petitioners, in both 1964 and 1969, to affirmatively request or indicate a desire and intention to continue the sand or gravel use is also analogous to the situation presented in Dawson v. Board of Appeals of Bourne, 18 Mass. App. Ct. 962 (1984). In Dawson, the Massachusetts Appellate Court held that, under the two prong test as first annunciated in Pioneer Insulation & Modernizing Corp. v. Lynn, and as 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." Dawson v. Board of Appeals of Bourne, 18 Mass. App. Ct. 962, 963 (1984). 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 Plaintiffs predecessors, through their communications with the Board of Appeals for the Town of Barnstable in 1961, 1964 and 1969, manifested a clear 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. Pioneer Insulation & Modernizing Corp. v. Lynn, 331 Mass. 560, 565 (1954). Page 23 i In any event, the Massachusetts Appellate Court and the Supreme Judicial Court have held that, in the case of a possible abandonment such as this, the Plaintiff bears both the burden of proof and persuasion on the issue of intent and on the issue of requisite similarity in use. "In reality, the Plaintiff, who had the burdens of proof and persuasion on the questions of intent and inability as they related to a possible abandonment [citations omitted] did not give the judge much to work with." Bartlett, 23 Mass. App. Ct. 664 at 671 (1987). Also, "It is the Plaintiffs burden to prove the 'requisite similarity' in use to show there was no change in the property's employment and the judge was warranted in finding this burden unmet." Ka-HurEnterprises, Inc. v. Z.B.A. of Provincetown, 424 Mass. 404, 408 (1997). Therefore, in the instant case, the Plaintiff bears the ultimate burden of proving both the intent of the Plaintiffs predecessors in relation to the issue of abandonment of the sand and gravel use and the similarity in use to show no change in the property's employment, if such a use ever lawfully existed in the first instance. The Plaintiff in the instant case has failed to meet either burden. 3. Assuming Arguendo That (1) The Plaintiffs Predecessor's Use Of The Property Was A Legal Pre-Existing Nonconforming Use Protected By G.L. C. 40a, §6, And; (2) Said Use Was Not Abandoned For A Period Of Three Years Or More, Plaintiffs Assumed Protection Under G.L. C. 40a, §6 Was Lost When Plaintiff Substantially Extended Said Use To An Extent That Amounted To A Change In Quality And Not Just A Change In Degree Alone, Which Use Does Not Otherwise Comply With The Zoning Ordinance Or Bylaw, Without Obtaining The Required Special Permit From The Defendant Zoning Board Of Appeals. The Plaintiff does not contest the fact that it has substantially expanded and extended the area and scope of its claimed pre-existing nonconforming use. Rather, the Plaintiff argues that, since its predecessors had used a portion of the property, however small, for sand or gravel excavation at some time prior to the adoption of the zoning by- Page 24 law, it is now, therefore, entitled, as a matter of right, to extend or expand such use out to the property boundaries to include an area that encompasses the Plaintiffs entire sixteen plus acre parcel, regardless of the effect such expansion has had, and continues to have, on the neighborhood. The Plaintiff contends, notwithstanding the fact that there exists uncontroverted, and, indeed, uncontested evidence that the Plaintiff has substantially extended, expanded and intensified both the area and scope of the sand and gravel operation in a way that has been, and continues to be, substantially more detrimental to the neighborhood, that it can do so as a matter of right. In support of such contention, the Plaintiff relies entirely upon the Supreme Judicial Court's decision in Wayland v. Lee, 331 Mass. 550 (1954). In so relying, the Plaintiff erroneously ignores the impact of subsequent case law on the oft-reported issues of: (1) whether there has been a "change or substantial extension" of the assumed pre-existing nonconforming use under G.L. c 40A, § 6; and, (2) the propriety of such changes or substantial extensions of pre-existing nonconforming uses as a matter of right. "During this period of more than a half century in which municipalities have been permitted to adopt zoning ordinances and by-laws, this court has been required to decide a large number of cases involving the question whether a use being made of premises which was not expressly authorized under the applicable zoning ordinance or by-law was nevertheless protected as a lawful nonconforming use." Powers v. Building Inspector of Barnstable, 363 Mass. 648, 652 (1973). Most importantly, the Plaintiff has ignored the impact of the above-cited Powers case and the three-part test re-stated therein that must be applied to determine I the availability of continuing protected status in cases where a party is seeking to avoid the applicability of a zoning by-law by claiming such status. Id. Page 25 i In Cox v. Board of Appeals of Carver, 42 Mass. App. Ct. 422 (1997), the Plaintiff sought to expand a mobile home park onto adjacent land. The Massachusetts Appellate Court clarified the seemingly contradictory and confusing language of the first two sentences of G.L. c. 40A, §6. 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. Cox v. Board of Appeals of Carver, 42 Mass. App. Ct. 422, 426 (1997) citing Rockwood v. Snow Inn Corp., 409 Mass. 361, 364 (1991). In so reasoning, the Court observed "We 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 stated: "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 sustained where both of the above-enumerated requirements were not met, the Plaintiff'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. Id. In Cullen v. Building Inspector of North Attleborough, 353 Mass. 671 (1968), the Supreme Judicial Court found that "Cumberland's expansion subsequent to the enactment of the zoning by-law was substantial." Cullen v. Building Inspector of North Attleborough, 353 Mass. 671, 676 (1968). In reaching that conclusion, one of the factors Page 26 the Court considered was the fact that "the land used has more than doubled." Id. The i j court observed "Although mere increase in the amount of business done is not in itself proof of change in use [citations omitted], the extensive activities initiated by Cumberland compel the conclusion that there was a change....For purposes of the zoning laws the aggregate of all of these operations amounts to a difference in quality rather than in degree alone. [citations omitted]" Id. More in point, however, is a line of earlier cases culminating in Wayland v. Lee, 331 Mass. 550 (1954) that addressed squarely the issue of the expansion of an alleged nonconforming use of earth removal or extraction that subsequently expanded beyond the boundaries of the area within which said extraction was performed at the time of the enactment of the zoning by-law. The Plaintiff, as noted above, relies mistakenly on one of these cases, Wayland v. Lee, 331 Mass. 550 (1954), to support its argument that a gravel pit can be expanded to the outer-most limits of the Plaintiffs parcel regardless of the initial boundaries of the area within which said use was confined on said parcel at the time the zoning by-law was enacted. The Plaintiff has attempted to turn the Wayland decision on its head. This attempted interpretation of Wayland is diametrically opposed to the proper interpretation and actual holding of the Court in Wayland. One of the earliest reported cases to consider the expansion of 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 from removing topsoil or loam from two tracts of land owned by the defendants. The defendants claimed, inter alia, that they were permissibly continuing a pre-existing nonconforming use of loam removal, which was protected by Page 27 'y. 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 . . . 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 the Plaintiff in the instant case, the Court held "We think that the stripping of the 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. [citations omitted]." [emphasis added] The court also observed that "Even 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. [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 and (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, the Court observed: "The record does not disclose the exact dimensions of the gravel pit, but it would seem to have comprised only a small portion of the total acreage." On these facts, the Court granted the Town the relief it prayed for with 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 Page 28 f 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 defendants 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, 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. It is also important to note that, in the Dunn case, because the defendant had not yet proceeded with its plan to remove the topsoil from the entire parcel, the Court was left to speculate as to the effect such removal would have on the neighborhood ("We think that the stripping of the surface soil from the whole acreage would have an altogether different effect upon the neighborhood . . . [emphasis added]), and still found that the defendant should be restrained and defendant's nonconforming use should be limited. Whereas, in the instant case, the Court is left to no such speculation. Because the Plaintiff in the instant case has chosen to conduct its expanded operation in derogation of the town's zoning by-laws, the Building Inspector's Cease and Desist Order and the defendant Board's decision affirming said Order, the Court in the instant case has direct and compelling evidence from the testimony of the abutters of the detrimental effect the Plaintiff's expanded operation has had, and is continuing to have, on the neighborhood. With the obvious aid of such evidence, and in light of the Court's decision in Dunn even in the absence of such evidence, the proper decision in the instant case is rendered all the more easily reached. Page 29 Assuming arguendo that the Plaintiff is able to prove a preexisting nonconforming use of sand and gravel removal, which use was not subsequently abandoned for a period of three years or more, Dunn is virtually indistinguishable from the instant case. It follows, therefore, following the ruling in Dunn, that the Plaintiff in the instant case, if it is able to proceed this far, should be restrained from changing its nonconforming use to anything other than sand and gravel removal, and, more importantly, should be limited to that area of the property devoted to sand and gravel removal at the time of the adoption of the applicable zoning by-law in the Town of Barnstable. 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 the such removal at the time of the adoption of the applicable zoning by- law. See Billerica v. Quinn, 320 Mass. 687 (1947). Similarly, contrary to the Plaintiffs characterization, the case of Seekonk v. Anthony, 339 Mass. 49 (1959) that a sand and gravel pit which was legally nonconforming, had illegally expanded to include a "ready mix" concrete processing operation. Despite the Plaintiffs erroneous reliance on Wayland v. Lee, 331 Mass. 550 (1954) (hereinafter referred to as "Wayland II"), the Supreme Judicial Court in that case, which merely clarified the earlier decision of the Court in Wayland v. Lee, 325 Mass. 637 (1950) (hereinafter referred to as "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. Page 30 r e I 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 time of the adoption of the zoning by-law and not subsequently abandoned]' as they existed at the time of the adoption of the zoning by-law. As in [Burlington v. Dunn] a further hearing may be needed to determine the exact boundaries of the area devoted to those pits. See also Billerica v. Quinn, 320 Mass. 687, 689." Wayland v. Lee, 331 Mass. 550, 552 (1954). It is clear that Wayland II, rather than overruling or reversing Wayland I, merely refined it so as to further clarify the decision reached in Wayland I and suggested the potential need for further proceedings to determine the boundaries within which the nonconforming use must be limited. Id. It is also important to note that Wayland II was decided upon request of the defendants, the parties who had sought the extension of the nonconforming use and had been limited, because they had claimed that the final decree after rescript of the earlier decision had limited them to excavation of holes that contained nothing but air. Id. "The defendants contend that the final decree after rescript limits them 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 in its earlier decision." Id. at 551. The fact that later cases have cited Wayland as a case in which the Court decided that an attempted extension of a pre-existing nonconforming use was properly limited bears this out. "There are additional cases limiting the extension of nonconforming uses which are frequently cited . . . Burlington v. Dunn, 318 Mass. 216; Billerica v. Quinn, 320 Mass. 687; Wayland Page 31 I► v. Lee, 325 Mass. 637 . . ." Powers v. Building Inspector of Barnstable, 363 Mass. 648, 665 n.4 (1973). The later-developed three-part Powers test, after the case of Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973), which adopted the three-part test initially enunciated in Bridgewater v. Chuckran, 351 Mass. 20 (1966) must be applied in order to determine whether a change or substantial extension of a pre-existing nonconforming use has occurred such that the new or extended use loses its protected status under G.L. c. 40A, § 6 and, therefore, must comply with the applicable zoning by-law or ordinance. 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, it is clear from the evidence that the Plaintiff's recently expanded use of the property is, at the very least, different in kind in its effect on the neighborhood and thus has lost its protected status under G.L. c. 40A, § 6. This conclusion, based on the later-developed three-part Powers test, comports squarely with the earlier observations of the Supreme Judicial Court in those above-reviewed cases which addressed the issue of the propriety of, and limits to be placed upon, attempted expansions of pre-existing nonconforming earth removal uses. See Burlington v. Dunn, 318 Mass. 216 (1945); Billerica v. Quinn, 320 Mass. 687 (1947); Wayland v. Lee, 331 Mass. 550 (1954) 4. Assuming Arguendo that Plaintiff Can Establish a Pre-existing Non- conforming Use of a Sand and Gravel Pit, Where, as Here , There Has Been An Page 32 Unauthorized Change Of A Non-Conforming Use, Such Use Loses Its Protection i As A Pre-Existing Non-Conforming Use. i Currently, the principal use of the locus is the processing and manufacture of loam to produce a salable loam product, a use which is not permitted under zoning on the locus. here, as here, the alleged nonconforming use has both changed and expanded, jSections 4-4.4(2) and Section 4-4.5 of the zoning ordinance require that a property- owner receive a special permit from the ZBA before any change or expansion of a nonconformity can legally occur.(Exhibit 3a). Prior zoning enactments, similarly prohibited the change or expansion of a nonconforming use without approval from the ZBA. (Exhibitsl 0, 11). As noted above, under the recent case of Ka-Hur Enterprises, Inc. v. Zoning Board of Appeals of Provincetown, 424 Mass. 404, 407, 408 (1997), the Supreme Judicial Court ruled that where there has been an unauthorized change or substantial extension of a nonconforming use, such use loses its protection as a pre- existing nonconforming use. In the instant case, the Plaintiff has begun his loam processing operation on the locus, without the approval of the ZBA. As such, under the holding of the Ka-Hur case, the actions of the property-owners of the locus in vastly extending the use without permission constitutes an act of abandonment, 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 obviate the consequences of its illegal actions, the Plaintiff argues that the loam processing operation is somehow accessory or incidental to the alleged non-conforming sand and gravel use. An accessory use must be both subsidiary to the Page 33 i 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). These cases underscore that not only must the accessory use be subordinate to and "minor in significance" in comparison to the principal use but also the use must be "attendant and concomitant" in its relationship to principal permitted use. Gallagher v. Board of Appeals of Acton, 44 Mass. App. Ct. at 907. 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.) Contrary to the Plaintiffs assertion, It is clear that the loam processing and manufacturing operation is a separate, independent commercial operation in its own right. It was never a use accessory to the sand and gravel operation. Moreover, even in instances where an accessory use that 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 constituted a change in use in violation of zoning. Ka-Hur Enterprises, Inc. v. Zoning Board of Appeals of Provincetown, 424 Mass. 404, 407, 408 (1997)(change from a fuel storage and distribution facility to a fishing and truck repair business, including incidental storage, Page 34 i transportation and delivery of fuel oil, resulted in loss of all nonconforming status); Building Inspector of Groton v. Vlahos, 10 Mass. App. Ct. 890, 891 (1980)(a change from a new and used car dealership that performed ancillary service on vehicles to a place for maintenance storage of heavy equipment vehicles constituted an impermissible extension of a nonconforming use); Jasper v. Michael A. Dolan, Inc., 355 Mass. 17, 24, i (1968) (change of a food store which incidentally sold beer and wine to a separately i conducted all-alcoholic package store violated zoning); Brady v. Board of Appeals of Westport, 348 Mass. 515, 523 (1965) (change from a pier containing four or five boats where boat repair was an incidental use to a boatyard was an illegal expansion of a nonconforming use); Lexington v. Bean, 272 Mass. 547 (1930) (change of the use from the valid nonconforming use of incidentally repairing vehicles owned as part of trucking business to the repair of vehicles owned by others, was a substantially different use). 5. Defendants are entitled to the Issuance of a Permanent Injunction in Their Favor To prevail in a request for injunctive relief, the moving party must demonstrate first that in the absence of injunctive relief, they will suffer serious harm which cannot be remedied after a decision on the merits. Secondly, the movant must demonstrate a reasonable likelihood it will prevail on the merits of its claims. Commonwealth v. County of Suffolk, 383 Mass. 286,288 (1981); Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 616-18 (1980). Third, they must show that the risk of harm to them, discounted by the probability that they will prevail, outweighs the harm that may be caused by the issuance of the injunction. See, e.g., Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. 20, 25 (1981). Page 35 In private litigation, the balance of harm usually means the balance of private harm. However, where the governmental entity is endeavoring to enforce a law "[t]he standard of requiring a demonstration of immediate irreparable harm, employed in civil litigation as a condition precedent to the granting of injunctive relief, is not a prerequisite to the allowance of an injunction to the Plaintiff in this case. "'["hen the government acts to enforce a statute or make effective a declared policy of[the Legislature], the standard of public interest and not the requirements of private litigation measure the propriety and need for injunctive relief."' Commonwealth v. Mass. CR/NC, 392 Mass. 79, 89 (1984) quoting United States v. D'Annolfo, 474 F. Supp. 220, 222 (D. Mass. 1979). Hence, a court considering injunctive relief involving a governmental entity must determine whether the requested order promotes the public interest. Further, where a statutory violation is alleged, "the judge who decides whether an injunction should issue needs to consider specifically whether there is a likelihood of statutory violations and how such statutory violations affect the public interest." Commonwealth v. Mass. CR/NC, supra, 392 Mass. at 90. Therefore, where a statutory violation is involved, there is no need for the court to find irreparable injury before issuing injunctive relief. "Merely finding a likely statutory violation which adversely affect[s] the public interest is sufficient." Edward v. Boston, 408 Mass. 643, 647 (1990). In the present case, as demonstrated above, the Plaintiff is violating the provisions of the Town of Barnstable Zoning Ordinance. Specifically, Section 3-1.4 establishes the permitted uses in the RF district and neither a junk yard nor a sand-and-gravel pit nor a soil manufacturing operation are permitted uses. Plaintiffs operation in violation of the Town of Barnstable Zoning Ordinance clearly adversely affects the public interest. It has Page 36 • long been recognized that municipal zoning ordinances are a proper exercise of the police power, asserted for the public welfare. Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926). The primary purpose of zoning is the preservation in the public interest of certain neighborhoods against uses which are believed to be deleterious to such neighborhoods. Circle Lounge & Grille, Inc. v. Board of Appeals of Boston, 324 Mass. 427, 431 (1949) "The basic assumption underlying the division of a municipality into zoning districts is that, in general, each land use will have a predictable character and that the uses of land can be sorted out into compatible groupings." SCIT, Inc. v. I Planning Board of Braintree, 19 Mass. App. Ct. 101, 107 (1984). The actions of Plaintiff, and its principal, Christopher Keyes, in violating the use provisions of the zoning ordinance threaten to undermine the legislatively-adopted RF zoning districts within the Town of Barnstable. The Town of Barnstable, like many government entities with limited resources, relies heavily on the self-policing cooperation of its citizens. The actions of Gifford Brothers Sand and Gravel, Inc., in openly and flagrantly violating the zoning ordinance and licensing laws threaten to seriously undermine the town's entire enforcement scheme. Substantial adverse effects will arise if the Town has no mechanism to promptly enforce its laws against individuals who openly and blatantly violate them. See Biotti v. Board of Selectmen of Manchester, 25 Mass. App. Ct. 637, 643 (1984). ("[T]own boards ... have a strong interest in having their orders and by-laws, reflective of the will of the town, upheld and enforced...."). Such a mechanism is found in M.G.L. c. 40A, §7, which allows for the enforcement of the zoning ordinance through an action filed for injunctive relief in the Superior Court. This statutory enforcement provision represents a Page 37 legislative recognition of the need for an expeditious means of enforcing zoning violations. See Burlington Sand & Gravel v. Harvard, 31 Mass. App. Ct. 261, 265 (1991). Particularly in light of the egregiousness of the Plaintiffs actions and the dreadful, direct and palpable effects they are having upon the neighbors, the need for prompt action to restrain them is paramount. CONCLUSION Based on the foregoing, the Defendants respectfully request that the Plaintiffs Complaint be dismissed and that a permanent injunction issue, enjoining any use of the subject premises other than single-family residential use and any other uses which are being conducted in compliance with the terms of zoning relief obtained from the Barnstable Zoning Board of Appeals. Dated: April 27, 1999 ZONING BOARD OF APPEALS of the TOWN OF BARNSTABLE, Plaintiffs, By their Attorneys, ROBERT D. SMITH, Town Attorney [B.B.O. No. 469980] RUTH J. WEIL, Assistant Town Attorney [B.B.O. No. 519285] TOWN OF BARNSTABLE 367 Main Street, New Town Hall Hyannis, Ma. 02601-3907 (508) 790-6280; (508) 775-3344 (Fax) Page 38 DIRECT EXAMININATION OF RALPH CROSSEN Name ADDRESS CURRENTLY EMPLOYED POSITION HOW LONG EDUCATIONAL BACKGROUND MILITARY BACKGROUND PRIOR EMPLOYMENT/EXPERIENCE TEACHING EXPERIENCE PROFESSIONAL CERTIFICATION JOB RESPONSIBILITIES IN YOUR JOB AS BUILDING COMMISSIONER FOR TOWN OF BARNSTABLE, BECOME FAMILIAR WITH PROPERTY AT 810 WAKEBY ROAD HOW DID YOU BECOME FAMILAR letter march 13, 1996 WHAT, IF ANYTHING, DID YOU DO IN RESPONSE DID YOU UNDERTAKE ZONING RESEARCH AT THAT TIME DID YOU VISIT THE SITE AT THE TIME ' 1 TO THE BEST OF YOUR RECOLLECTION, WHEN WAS THE NEXT TIME THAT YOU HAD ANY INVOLVEMENT WITH THE PROPERTY AT 810 WAKEBY ROAD. (Ralph, I believe that you did receive some complaints from neighbors about the increase in dust, noise etc. for a number of months prior to the issuance of the May 9th, 1997 order, but got a specific complaint about a new use-loam manufacturing operation). WHAT CAUSED YOU TO BECOME INVOLVED WITH THE PROPERTY ON THAT DATE DESCRIBE THE NATURE OF YOUR INVESTIGATION AT THAT TIME DO RECALL IF YOU OR ANYONE IN YOUR OFFICE WENT TO THE SITE IN MAY WHO May 9, 1997 Cease and Desist-WHAT WAS OBSERVED WHAT, IF ANYTHING, DID YOU DO AS A RESULT OF THE INVESTIGATION MAY 9, 1997 CEASE AND DESIST ORDER DID YOU SERVE THE ORDER GIFFORD SAND AND GRAVEL, INC. WAS AN APPEAL TAKEN OF THAT ORDER? TO THE BEST OF YOUR RECOLLECTION, WHEN WAS THE NEXT TIME THAT YOU BECOME INVOLVED WITH THE PROPERTY AT 810 WAKEBY ROAD 2 CONTINUED COMPLAINTS FROM NEIGHBORS, HIRED THEIR OWN ATTORNEY, DOUG MURPHY, WHO WROTE ME A LETTER REQUESTING ENFORCEMENT SHOW YOU DOCUMENT MARKED EXHIBIT_AND ASK YOU IF YOU CAN IDENTIFY IT SEPTEMBER 11, 1997 LETTER TO ME FROM DOUG MURPHY WHAT, IF ANYTHING DID YOU DO UPON THE RECEIPT OF THE LETTER FROM MR. MURPHY- AS IS MY PRACTICE, SENT LETTER TO MR. GREG DOWNS, WHO I KNEW WAS REPRESENTING MR. KEYES AND ASKED HIM TO RESPOND. WAS THERE ANYTHING IN THE LETTER WHICH WAS NEW INFORMATION THAT YOU WERE UNAWARE OF PREVIOUS PERMITS ON- APPEARED TO ME THAT ANY SAND AND GRAVEL USE MAY HAVE BEEN ABANDONED WHAT, IF ANYTHING, ELSE DID YOU DO'AS PART OF YOUR INVESTIGATION LOOKED AT AERIAL MAPS, TRIED TO TRACE THE ORIGIN OF THE SAND AND GRAVEL OPERATION. DOES THE TOWN MAINTAIN AERIAL MAPS AS PART OF ITS . RECORDS DO YOU KNOW HOW THOSE AERIAL MAPS ARE CREATED PLEASE DESCRIBE THE PROCEDURE HOW ARE THESE MAPS USED WITHIN THE TOWN' EVERYTHING GIS 3 TO THE BEST. OF YOUR KNOWLEDGE, FOR WHAT YEARS DOES THE TOWN HAVE AERIAL MAPS DID YOU HAVE OCCASION TO LOCATE AERIAL MAPS WITHIN THE TOWN'S RECORDS DURING YOUR INVESTIGATION OF 810 WAKEBY ROAD FOR WHAT YEARS DID YOU LOCATE MAPS SHOW YOU THIS PHOTOGRAH AND ASK YOU TO IDENTIFY IT' 1968 MAP CAN YOU IDENTIFY THE SUBJECT PARCEL ON THIS MAP WAKEBY ROAD? POWER EASEMENT? SHOW YOU THIS AERIAL AND ASKED IF YOU COULD IDENTIFY IT 1989 CAN YOU IDENTIFY THE SUBJECT PARCEL WAKEBY ROAD POWER EASEMENT ABUTTING RESIDENTIAL SHOW YOU THIS AERIAL, ASK IF YOU COULD IDENTIFY IT 1995 f CAN YOU IDENTIFY SUBJECT PARCEL WAKEBY ROAD 4 ABUTTING RESIDENTIAL WHEN WAS THE LAST FLYOVER 1995 DID YOU COMPARE THE THREE MAPS WHAT IF ANYTHING DID YOU CONCLUDE TREMENDOUS EXPANSION OF PIT-HOWEVER, DID'NT GO BACK BEFORE ZONING BEGAN IN THIS AREA IN YOUR OPINION, WHEN DID ZONING BEGIN IN THIS AREA THE FIRST ZONING BYLAWWAS 1929, BASICALLY SAID EVERYTHING AT THE TIME OF THE ADOPTION IS BUSINESS REMAINS BUSINESS, EVERYTHING ELSE IS RESIDENTIAL. FRANK, IN THE PAST, THIS BYLAW HAS BEEN IGNORED, 1960 AND 1956 DATES HAVE BEEN USED. MORE AND MORE WE HAVE BEEN LOOKING TO 1929 BECAUSE THAT WAS THE FIRST ZONING ENACTMENT. AFTER YOU COMPLETED YOUR RESEARCH, WHAT IF ANYTHING DID YOU DO ISSUED A CEASE AND DESIST ORDER SHOW YOU DOCUMENT MARKED, IDENTIFY WHAT DID YOU CONCLUDE BASICALLY, ONLY LEGAL USES ON THE PREMISES WERE RESIDENTIAL AND AUTO SALVAGE YARD DID YOU SERVE THE CEASE AND DESIST ORDER ON CHRIS KEYES 5 DID HE APPEAL IT TO THE ZBA AND THE ZBA UPHELD YOUR DECISION SINCE THE ZBA DECISION, HAVE YOU HAD OCCASION TO VISIT 810 WAKEBY ROAD WHY further complaints that Mr. Keyes was not only not stopping the activities on the site but intensifying DO YOU RECALL THE DATE OF YOUR NEXT VISIT TO SITE APRIL 14T" 998 DID ANYONE GO WITH YOU MCKEAN AND GILLIS WHAT, IF ANYTHING DID YOU OBSERVE DID YOU HAVE OCCASION TO SPEAK WITH ANYONE ON THE SITE WHO CHRIS KEYES DESCRIBE CONVERSATION POINTED OUT PROBLEMS, HE SAID TAKE ME TO COURT RECALL NEXT TIME VISIT SITE JULY 1998 i WHY 6 MORE COMPLAINTS WHAT IF ANYTHING DID YOU OBSERVE WHAT, IF ANYTHING, DID YOU DO NEXT REGARDING THE SITE JULY 20TH CHARTERED PLANE TO TAKE AERIAL PHOTOS OF SITE WAS ANYONE WITH YOU WHAT, IF ANYTHING DID YOU OBSERVE SHOW YOU A SERIES OF PHOTOS, ASK IF YOU CAN IDENTIFY THEM HAVE YOU BEEN ON THE SITE SINCE JULY 209 1999 WHEN? April WHY COMPLAINTS FROM NEIGHBORS THAT HEAVY INDUSTRIAL ACTIVITY ON SITE WAS BEGININING FULL TILT DID ANYONE GO WITH YOU WHAT IF ANYTHING DID YOU OBSERVE IF A PROPERTY OWNER OPENLY VIOLATES ZONING,WHAT IF ANY EFFECT DOES THAT HAVE IN YOUR ABILITY TO ENFORCE ZONING. i WHAT, IF EFFECT, DOES MR. KEYES ACTIONS HAVE ON YOUR ABILITY TO ENFORCE ZONING. 7 Be prepared on cross Review affidavit. March Sth letter. WHEN DIDN'T YOU FULLY INVESTIGATE FURTHER IS IT NORMAL FOR THE TOWN TO RENT A PLANE TO SURVEY ZONING VIOLATIONS. PICKING ON KEYES TO APPEASE A COUPLE OF WHINING NEIGHBORS. i REMEMBER TO MOVE AERIAL AND OTHER PHOTOS INTO EVIDNECE. 8 • RESIDENTIAL PROPERTY MAP NO. LOT NO. FIRE DISTRICT STREET 800 IpTakeby Rd. Marstons Mills SUMMARY 73 LAND 3S0 //!'' /l. / 0) BLDGS. O O 1Z Z OWNER l.�!.C..C (.�: C �, f...r� TOTAL O SO RECORD OF TRANSFER DATE BK PG I.R.S. REMARKS: 7 LAND 7250 rn BLDGS. /dp I/S 0 1 6 1207 562 TOTAL a SO O O p LAND 1 L-GC•-. U a3 BLDGS. TOTAL LAND BLDGS. TOTAL LAND BLDGS. TOTAL LAND In BLDGS. TOTAL LAND BLDGS. TOTAL LAND INTERIOR INSPECTED: BLDGS. TOTAL DATE: 7 Y (/ ^ f LAND ACREAGE COMPUTATIONS BLDGS. LAND TYPE # OF ACRES PRICE TOTAL DEPR. VALUE TOTAL HOUSE LOT 0 �G O ,.3 SO LAND :LEARED FRONT O BLDGS. REAR TOTAL GODS&SPROUT FRONT LAND r REAR BLDGS. HASTE FRONT TOTAL I REAR LAND 0) BLDGS. TOTAL LAND G �t BLDGS. 01 LOT COMPUTATIONS LAND FACTORS TOTAL FRONT DEPTH STREET PRICE DEPTH% FRONT FT.PRICE TOTAL DEPR. COR. INF. VALUE HILLY TOWN SEWER LAND /S O ROUGH TOWN WATER BLDGS. HIGH GRAVEL RD. TOTAL LOW DIRT RD. LAND ne.Walla LAND COST Fin. Bsmt.Area r/ Bath Room ffB se � S't�C�J , BLDG. COST one. Blk.Walls Bsmt. Rec. Room St. Shower Bath I. one. Slab Bsmt.Garage St. Shower Ext. 11s PURCH. DATE rick Wells PURCH. PRICEAtti Fl &Stir Toilet Roomof RENT SU tone Wells Fin.Attie Two Fixt.Bath � o isrs INTERIOR FINISH Lavatory Extra Floors - 20 /;��3' 39'/¢ I/'� ' smt. f/ 1 2 3 Sink / W:/6Re� . '/x Plaster Water Cie. Extra Attic C-o-/o EXTERIOR WALLS Knotty Pine Water Only /NS.ct. f 3 f/' C0,12C— FBI g Plywood ' No Plumbing Bsmt. Fin. /w llfe—f Siding Plasterboard r/ Int.Fin. ingles TILING G F P Bath Fl. Heat 4- eo Int.Layout !/ Beth FI.6 Wains. Auto Ht.Unit3 20 neer Il Cond. Bath FI. 3 WellsFireplace n HEATING Toilet Rm. Fl. Plumbing �^7 lid Com.Brk. Hot Air Toilet Rm.Fl.3 Wains. 1s Tiling Steam Toilet Rm.Fl.3 Walls .nket Ins. % Not Water f,N St. Shower f Ins. Air Cond. Tub Area Total 33 Floor Furn. ROOFING COMPUTATIONS Bph.Shingle ✓ Pipaless Furn. 8 7 S'S.F. / food Shingle No Heat S.F. ll Shingle Oil Burner late Coal Stoker S.F. Is Gas ROOF TYPE Electric S.F. OUTBUILDINGS able ✓ Flat S.F. 1 2 3 4 1516 7 8191101 1 2 314 516 7 8 9 10 MEASURED Ip Mansard FIREPLACES S.F. Pier Found. CM Floor ambrel Fireplace Stack Wall Found. L, 0.H.Door LISTED FLOORS Fireplace Sgle.Sdg. Roll Roofing �� one. LIGHTING v arth No Elect. Dble.Sdg. Shingle Roof ine Shingle Walls Plumbing DATE i ardwood ROOMS Cement Blk. Electric sph.Tile Bsmt. oz 1st TOTAL /�p Brick Int.Finish PRICED inHle 2nd 3rd FACTOR A REPLACEMENT OCCUPANCY CONSTRUCTION SIZE AREA CLASS AGE REMOD. COND. REPL. VAL. Phy.Dep. PHYS'./VALUE Funct.DeP. ACTUAL VAL. IWLG. I7 1O O D ' G I s FK 2 Z �" 7 3 S�� _ X 3 G 3 3 3 7�0 z 3 -- 4 5 . 6 7 8 8 — 10 TOTAL 7 SO RESIDENTIAL PROPERTY MAP NO. LOT NO. 810 FIRE DISTRICT STREET Wak@by Rd. Newt&'N SUMMARY : LAND I� 13 '��' �'✓ i 7-3Blocs. — OWNER �(�y)'e!L.-•`o� �i � I�cam+ r' .�"'� TOTAL 76 LAND RECORD.OF TRANSFER LDATEeK PG I.R.S. REMARKS: -JJBLDGS. t, � TOTALGifford Ma rdT. & Tilliam 1350 14 g D; 1444A, �j /Q Gifford LAND /� /SIG rn 1 BLDGS. //T/7 S O NS TOTAL LAND ''•`. - _�,�� O .2 � R B BLDGS. TOTAL LAND Z S BLDGS. �+ TOTAL LAND BLDGS. TOTAL LAND BLDGS. aj TOTAL LAND INTERIOR INSPECTED: BLDGS. TOTAL DATE: i LAND ACREAGE COMPUTATIONS ± � BLDGS. LAND TYPE ?# OF ACRES PRICE TOTAL DEPR. VALUE TOTAL HOUSE LOT LAND CLEARED FRONT: ' BLDGS. REAR TOTAL WOODS&SPROUT FRONT LAND REAR Z61po 3 4p,,4,1 '6 4 8SP , BLDGS. Qr WASTE FRONT TOTAL REAR l j:t* '. , &Z 400 LAND BLDGS. TOTAL // r LAND ol 9 t' BLDGS. LOT COMPUTATIONS LAND FACTORS TOTAL FRONT DEPTH STREET PRICE DEPTH% FRONT FT. PRICE TOTAL DEPR. COR. INF. VALUE HILLY TOWN SEWER LAND r•- ROUGH TOWN WATER BLDGS. HIGH GRAVEL RD. TOTAL LOW DIRT RD. LAND F'OUNUAII LAND COST . lone.Wells Fin.Bsmt.Area Bath Room Base BLDG. COST ono.Blk._Walls Bsmt.Rec. Room St. Shower Bath ' B t. PURCH. DATE one. Slab Bsmt.Garage St. Shower Ext. Walls PURCH. PRICE. rick Walls Attic Fl.&Stairs Toilet Room Roof RENT tone Walls Fin.Attic Two Fixt. Bath Floors isrs INTERIOR FINISH Lavatory Extra amt. F '1' 2 3 Sink 6 % 1/4 Plaster Water Cie. Extra Attie EXTERIOR Y;ALLS Knotty Pine Water Only ouble Siding Plywood No Plumbing Bsmt.Fin. ingle Siding Plasterboard Int.Fin. Shingles TILING one.Blk. G F P Beth Fl. Heat ace Brk.On Int.Layout Bath Fl.&Wain$. Auto Ht.Unit Veneer Int.Cond. Bath Fl. &Walls Fireplace om.irk.On HEATING Toilet Rm.Fl. Plumbing olid Cam.Brk. Hot Air Toilet Rm.Fl.&Walns. Tiling Steam Toilet Rm.Fl.&Walla Ilanket Ins. Not Water I St. Shower oaf Ins. Air Cond. Tub Area Total , Floor Furn. ROOFING COMPUTATIONS sph. Shingle Pipeless Furn. S.F. food Shingle No Heat S.F. isbs.Shingle Oil Burner S.F. ' late Coal Stoker S.F. its Gas S.F. OUTBUILDINGS ROOF TYPE Electric S.F. 1 2 3 4 5 6 7 8 9 10 1 2 3 4 5 6 7 8 9 10 MEASURED labia Flat lip Mansard FIREPLACES S.F. Pier Found. Floor iambrel Fireplace Stack Well Found. 0.H.Door LISTED FLOIORS Fireplace Sgle.Sdg. Roll Roofing :one. LIGHTING Dble.Sdg. Shingle Root :arth No Elect. DATE Shingle Walls Plumbing -- line Cement Blk. Electric iardwood ROOMS PRICED ksph.Tile Bsmt. 1st TOTAL Brick Int.Finish Single 2nd 3rd FACTOR REPLACEMENT OCCUPANCY CO STRUCTION SIZE AREA CLASS AGE REMOD. COND. REPL. VAL. Phy.Dep. PHYS. VALUE Funct.Dep. ACTUAL VAL. DWLG. 1 2 3 4 5 6 7 6 -- 9 10 TOTAL �FTHE tp� The Town of Barnstable • BARNSTABM 9q, 16 9. `0�' Department of Health Safety and Environmental Services ATFDniw't°i 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 I HENRY L. MURPHY, JR. MURPHY AND MURPHY TELEPHONE J. DOUGLAS MURPHY (SOB) 775-3116 COUNSELLORS AT LAW F A X G. ARTHUR HYLAND. JR. 243 SOUTH STREET (506) 775-3720 SUSAN MERRITT—GLENNY ' LOCK DRAWER M • ALSO ADMITTED IN CONNEC TIC UT HYANNIS, MASSACHUSETTS 02601-1412 E-MAIL murphlaw@capecod.net PLEASE REPLY OUR FILE NO. September 11,- 1997 NOTARY PUBLIC 11879 Ralph Crossen, Building Commissioner TOWN OF BARNSTABLE 367 Main Street Hyannis, MA 02601 Re : PREMISES AT WAKEBY ROAD, MARSTONS MILLS (ASSESSOR'S MAP 13, PARCEL 52) Dear Mr. Crossen: I represent Mr. and Mrs . James P. McDonough, immediate contiguous abutters to the above referenced parcel 52 (the "Premises") who reside at 111 Mockingbird Lane, Marstons Mills with their two minor children aged 17 and 8 . The Premises are located in an RD-1 residential zoning district in which the Principal Permitted Uses are only Single Family Residential dwellings. Stabling horses is allowed as an accessory or Conditional use, and golf courses, family apartments and Windmills or similar energy conversion devices are Conditionally Permitted. Lastly, Open Space Residential developments are permitted by Special Permit . No other uses are . authorized by right under the current Ordinance . Notwithstanding the foregoing, the owners and/or occupants of the Premises engage in the mining and processing of sand and gravel obtained from both within and without the Premises . In addition, the Premises appear to have recently been utilized for the production and/or processing of loam, bark mulch and site clearing debris . The owners and or occupant/operators of the Premises have engaged in and continue to engage in pursuits on the Premises, including the foregoing, that are impermissible as a matter of unilateral right under the Town of Barnstable Zoning Ordinance. Research and review of the records at the Zoning Board of Appeals (the "Board" ) discloses no evidence of necessary relief ever having been allowed by the Board in the nature of variances or Special Permits requisite to the cited activities undertaken on the Premises . 1 t You are respectfully requested, pursuant to G.L. c. 40A and the Town of Barnstable Zoning Ordinance, to enforce the By-Law with respect to the above referenced Premises. Despite a somewhat varied history, research indicates that the most recently permitted use (aside from permits for use of portions of the Premises for the construction of certain improvements) applicable to the cited parcel generally and controlling the over all use, is that described in the Decision for Special Permit in Board Docket No. 1969-17 dated February 27, 1969 (herein the 111969 Petition") a copy of which is attached hereto as Exhibit "A" . The 1969 Petition sought and obtained a Special Permit for permission to permit the extension of a non-conforming use by the construction of a building and to include the sale of used auto parts from the premises . The 1969 Petition also described the Premises which were the subject thereof as a lot 250 x 2000 feet containing approximately 23 acres whose then alleged "present use" was used for metal salvage, with a then proposed use for used auto parts. The Decision in case number 1969-17, a copy of which is attached hereto as Exhibit "A-111 , describes the Premises as a " . . . 16 acre .Parcel. " Furthermore, the 1969 Decision contains the observation that : "Mr. Curley (attorney for the Petitioner) 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 surrounded by woods on three sides and the power line on the back. A copy of the current assessor' s map disclosing the layout of the referenced power line and showing the adjacent, currently developed residential lots is attached hereto as Exhibit "C" . The 1969 Decision concluded that : "Because of the large acreage owned by the Petitioners which surrounds the salvage yard operation, the Board feels that it is not detrimental to the neighborhood. " The Board unanimously voted in the 1969 Decision to grant a Special Permit to William Gifford, Maynard Gifford and Kenneth Borthel (tenant) for the construction of a building to be used for the storage and sale of used auto parts, . Even this use was to be restricted to the period of time during which the Petitioners or the tenant retained ownership of the present 16 acre parcel . Clearly it was requisite that the treed screening areas be retained. The use alleged to be the "present" use of the Premises as described in the 1969 Petition was itself permitted only after obtaining a Variance from the Board in its earlier Decision in Case No. 1964-18 dated April 30, 1964 (herein the 111964 Decision") , a icopy of which is attached as Exhibit "B" . 2 The 1964 Decision was predicated upon a Petition for Variance i dated March 23, 1964 and filed on April 7, 1964 (the "1964 Petition") which described the dimensions of the lot as 205' x 2500+ with an area 23 acres . The Petition went on to state, amongst other reasons purportedly justifying the Variance, that the proposed area was about 1000 feet from the road. The 1964 Decision granted permission subject to several specific conditions, including: 1 . That the use of the land in the new location [the use was to permit relocation of salvage operations and storage of used parts from a site in Santuit, to the locus] be restricted entirely to that area behind the screened trees; 2 . [Relates to the construction of a building] ; 3 . No trees are to be removed; 4 . [This provision related to clean up of the Santuit operation which had apparently been the prior site for the salvage and storage operation] . It is evident from the records generated from time to time by or at the behest of the landowners and occupants of the Premises that the intentions of the owners and occupants, as Petitioners and the members of the Board of Appeals as they apprehended the situation, considered the entirety of the 16 acre parcel currently referred to as Assessor' s Map 13, Parcel 52 (the Premises) as the subject of a Variance and subsequent Special Permit to enable use of the property for the conduct of an automobile salvage -yard and the sale of used auto parts, with the construction of certain non- conforming improvements on the property in the interim. Nowhere in the history of the Board of Appeals records nor apparently in the Building Commissioner' s office does there appear lawful authority under the applicable zoning by-law or ordinance to conduct a contemporary sand and gravel excavation/mining operation, nor to process sand, gravel, bark mulch or other materials, nor to conduct a processing and/or distribution facility on the referenced Premises. Any pretense that the suspect uses are to be permitted as lawful, pre-existing, non-conforming uses must fail in the face of the record of permissible uses under the zoning ordinance and its predecessor by-law. The owners and/or operators themselves repeatedly acknowledged the existence of non-conformity when they initiated requests to construct improvements for the limited uses permitted by the outstanding variance and special permits. 3 I You are therefore requested to enforce the Town of Barnstable Zoning Ordinance and State Law by ordering the owners and/or occupants .of the cited Premises to cease and desist all operations specifically included but not by way of limitation the sand and gravel mining, excavation and processing, the processing of landscape materials and the temporary storage or transhipment of the same other than those permitted as matter of right under the existing Ordinance and those conforming to the current, express permissions granted by the Board of Appeals in the cited and related cases appearing on the Board' s docket . Thank you for your prompt and considerate attention to this matter. S'ncerely M J. Doug s Murphy JDM:bb cc: James P. McDonough sys3\daily. let\jdm\crossen. 912 4 INC rp Q� b 33ARESTAHLr. S MAUS. 9ppp 1639. rEs aF'(k' TOWN OF BARNSTABLE PETITION FOR VARIANCE SPECIAL PERMIT UNDER THE ZONING BY-LAW To the Board of Appeals, Hyannis,Mass. Date 19 6,9 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.May,nerd,_Gift.nz•d..,,.._.,.,•.•••;SantuitMassachusetts___._ (Full Name) (Winter Address) Owner: _..__...._..._.William...Gifford....and.... y11.s1::�...Uiflar.d.................5.Raduito_.&W.sa.Ghl=-ttS.._._._._— (Full Name) (Winter Address) Kenneth Borthel Newton Road: Santuit, Massachusetts _ Tenant (if any): _....._...................._.............._._............................._..._.........._._.. .. (Full Name) (Winter Address) 1. Location of Premises _.._Wakeby Road _Newton1_Massac_husetts.,.,,_.._....•__.__,_,•,___._.___._...___ ._ (Name of Street) (What section of Town). ?. Area 2. Dimensions of lot ............� _U ....._... L ..... ......._............._....._.. _. (Frontage) (Depth) (Square Feet) 3. Zoning district in which premises are located...__......_........R.._D...._ ....._..._....._...._._...____....__.__...___..__�_ 4. IIow long has owner bad title to the above premises? _.....................3....Yz1ZS...................................:........__._...__....... 5. How many buildings are now on the luO ....... ..................................._.._._.._..._...._...__._.._._._____...____. 6. Give size of existing buildings _...__....__. 1.: ..:N...i,2.........__........!! ....._,............... __..._ _ Proposed buildings _...._..__.._.............._._..JiL..X._30....._........_..............._..................._................_...........__..._.:.._....... _.... 7. State present use of premises_............—------ a ai._ .sslYagti............................... __...._._...._.:..._.........._.._.._..__......._..__._ S. State proposed use of premises..................__Used,auto.._parts..._.............._......__„••_.............. 9. Give extent of proposed construction or alterations:......only._additpn._of building____•.____,_,_. _.................__...._._................ 10. Number of living units for which building is to be arranged .......none 11.. IIave you submitted plans for above W the Building Inspector? ..........__._ 12. Has he refused a permit?_..._........e_a.._.._.._.__.._...................._........_............_.......__.._ 13. What section of zoning by-law do you ask to be varied? ................................�.._..__...._.__ 14. State reasons for variance or special permit: _......There__isa..need for the business we --_......seek._ n.._the._,genera._ e. ..... .t... suld....acual1Y.....h�.IIL...rl�axl..u ._.some._a blems of old cars in areas where there,•,_shoul,�l not..g.t•Qagof„your„ . tit .ongrs ...................._..._._........_..........._.. __ ___ _............._.._.....__....._._.........._.. 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 comp];etely„ invisible the road, and•,_W�,�,]_�Qt,,,,l?e,•,,,���•tlggd,__to_any,,,great extent from its present„_use, .....................___............................_......__............___...._......_.............._........................__............._...__....... ......... ._......_.. ... _ Respectfully submitte (Signature .. .. ........... _.. ....... _......_._ _ -- Petition received by ---------- (Addr s Hearing date set for ........._...__..............................._ 19'.,__.... Viling of $20.00 required with this petition. ° This foua k, also be used for Appeals. (Over) 1 TOWN OF BARNSTABLE Board of Appeals W.ILLIAM...COIF.1'ORD.....&....DIA31 TARD.....GIFFORD Petitioner Appeal No. ....j,.9i•.q.,j-7................................... ..........may....2l. 6 FACTS and DECISION Petitioner WI,j.LIAM....GIFFORD...g�...., AYNARI,I...3IFFORbetition on ..........�i®1�0.....27.91`d 69, requesting a variance-permit for premises at .......Wakaby. Road.................................... e n� in the village i of ...Mars-ton,s....iti1l•lla... adjoining„ promises of.......RV4&r,t....L• _. ..11.dams.,......Lorink.....Jones.,.....Raw. ,c1....�®nes Ei.... �...... &....�....Rr,o.pe-rti4$;......Igo................... _ for the purpose of a.b.taining ....p.ca®ia3 of ova.....t®.....vaa:�r.....the.....zonin �a �,•�.....ta...... extension o8 a non—con9orn�ing use by the construction it aaa.d.....t.o....Inc.leade.....th.e.....s.als.....o.�....Us.e.d....n.uto.....part•s...................................................o� a bn - pdw ....... .......................................... Locus is presently zoned in _.a...Re•5id=0® 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 proceeding, filed with Town Clerk A public hearing by the Board of Appeals of the '.Cowie -of .Barnstable was held at the Town Office Building, Hyannis, Mass., at ...�.�. : ................... P.M. ............................. May.....7..,......._....................._ is 69, upon said petition under zoning by-laws. Present at the hearing were the following members: .Rah.ert....E.......0.!.11Tei1............ ...........J. ean....IIearse......................... Au�nrd.,..G®Chairman ........................_. .................._........_...................................................... .......... �� 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 The Petitioners were represented by J The Attorney stated that the Petitioners P.wereurley'Jr. , to extend A non-conformin ®®ski ,Beq. the sal® of used auto use by constructing ll l omission use was parts.. Mr. Curley � a building for granted by the Board of Appeals y stated that the original the Dow building is to houa® salvageable in 196 . The parts on thees. a Parts from cars anndeto Petitioners to secure a different tat gill be necessary for the would be dependent on the Of salvagepermit license but this APPeals. The existing buildin granting of a Pex�it by the Board of building 301 x 301 would be constoructed® removed and the now stated that the Petitioner® own appro matHr further that the operation of the salvage yard would b 16 'acres and Middle of the parcel surrounded U d located in the Power line on the back. Y woods on three sides and the It was the opinion of the Board that the ex was not unreaeonabl©, for a salvage extension raga©aced careryinonent ofthePetitioners is to have aard nlarie location to their business* gar building and the Petitioners Because of the large acreage owsa®d by Board feels that is notrdotri>aaentods the salva e The Board un g yard operation, the animously voted to 1 to the neighborhood. etruction of a building grant a Special POrmit for the con- used auto l to be used for the ®forage and sago of Borthel, (t©nant� t® Gilliam Gifford Maynard Gifford and .Kenn which t , to be restricted to that 'Kenneth Present •a or the Tenant retain owner hip of°8theurin8 acre areaVl. Distribution:— Board of Appeals Town Clerk .Applicant Town of Barnstable Persons interested Building Inspector .Public Information B 1 �^1 a-� Board of Appeals Y ...:........ .... . `'C� �• V , Chairman'0lieft...r....0-rPJ'e-1:1 I I ' I TOWN OF BARNSTABLE i Board of A ' ppeals Petitioner Appeal No. 1964 S FACTS and DEC ISION Petitioner -- ------ filed petition on 1 t . � requesting a varianc for premises at . of •' Y'94 ;$j�T1p� in the village i .`--- ---------_, adjoining premises o ;� ru �! J b gm jo for the purpose of OtMU99of =ad a Locus is presently zoned in ROaidercm D3 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 newspaAer published in Town of Barnst able a I copy of which is attached to the record of these proceedings filed with Town Clerk. It A public hearingb y the Board of Appeals of the Town of Barnstable was held at the Town Office Building, Hyannis, Mass., at 3115 . P.M. ATZ11 23rd is upon said petition under zoning by-laws. a Present at the hearing were the following members: i R® %pll B1Nu1 MI.AM Chairman --------- . �. .•w•r,w , •r. . L ._Tn..,; l _ ' ..fi,. 1Ti.�•' '.....-....-..�.....� ..._...--,.. �...._ _ 1.,1 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 Thatcher Gifford,# the Petitioner, was represented by Joseph Boecher, Sege fair eochor stated that the petitioner was Aselting a Variance to move an existing tomobilo parts salvage business to a new loco a location in which the otitionor proposos to locate his Waimea is a gravel P# nonx Wakaby Road In Marstons :fills. The area Is now zoned as ROB as a. Tho business ;hich t17A petitioner preaently operates in Santuit tins beaus* an eYosase to the co7ra;uni.7 and the petitioner feels that it would he in t1v boat Interests of al corce.nod to move the business to .an area Sell away from the travelled highway. It is the opinion of a=y people that the situa--ion ems it now.. exists creates hardship not only for the Village of Santuit a butt also fOr Cotult. t'fre Be®ohei stal-ed that the proposed locaticn is about 1000 feet frori the road and is Iocat In a hollow with a screen of trees eurramdIng the front part of the lots He stated tha,: stored- vehicles would hot be visibla from file road* lira Boocher We further stated that the physical condition oa" e proposed 1mation was gush that it could not be used for residential. purposes. To deny the oozer use of th land for any purpose would. result In a ®every hardship to hime 32 people either spoke or were recorded in favor of petitiomrs request and 6 people spoke in op-)os itione It was the opinion cf the Doard ttat the existing automobilo parts salvar operation in its present locations has created a serricus problm for the entire neighborhood* The location of eisl age yards is a diff icult probl,om in any area of tia towne BoWever, it, is iaapcwtant that they be placed in areas Xmft= away from the well-travelled h%hways and where the day to day operntioane may be ecr®vned from view, as much as peseiblea The location for wish the petitioner seekn permission to use, seems to fit these* It Is important to note that persons who o'tm property near the prop ovod location spore in favor of grant lag this request as the leaser of two evi]lo* The Board further found that owing to conditions especially affecting thifl Purca1F but not affecting Generally t2he zoning district. in which it is located,' a literal onforceraent of the By-Law Would involve substantial hardship to the petitioner and further the relief could be granted without nullifying or substantially derrogating fr= th Intent .and purpose of the zoning by-lave The Board unanimously votod to grant petitioners' request s subject to the fo.11cwing conditions: U TlAt the use of th Lard in the new location by restricted entlr®ly to that area behind the screen trooeo .& That only we building may be constructed for use in connection with trio salvage yard and such bui3df3g must be located behind thD screen of trees. Fo trees are to be ,removede lixt. the present location at Sa3ntuit be complete cleared of all material with n a .9 e.scsnable time! Distribution:— Board of Appeals Town Clerk Town of Barnstable Applicant Persons interested Building Inspector ha ,S �- °7 :°V 1 pp � � lY ',0 1_ o� �t�''` ►, I \ 2� Iv \ � s P 6 `� � a y � !��{• v e0 Ila % \ \ J9 Q 3q ylpGRl NeelRO '� ILI 40 I15 I /L` A 10, \ �`\ � O F M_Lq•j (O yC / Ib.1.1r AOL o ' 'q REr: 9-1 \ \ 5ro-2 ' 140.Nov Ystp' 66V \ V1 O 3.2 3-1 © � /.OOA/r 3-3 4.14 AC 2 /.00q� .e6 qc /.oOAC 3_S I/s:s y. I.OpAC \c9 \ so \ I$o L49 \175 ISO $So '33 \ / o N 47 47 IOo. 0 q 0 ,Z3.S Il 7-I -7-2 l > 1.18s I.00AC- 1 OOAC N 13-1 ro v rtv 1.02 AL ,0 N F • �- � �. ry5. �I tih � 9 Ifr17 _ i30 r, p LEGAL DEPARTMENT, TOWN OF BARNSTABLE OFFICE OF TOWN ATTORNEY Inter-Office Memorandum October 1, 1998. TO: RALPH CROSSEN, Building Commissioner FROM: ROBERT D. SMITH, Town Attorney RUTH J. WEIL, Asst. Town Attorney ice' RE: REVISED AFFIDAVIT. OUR FILE REF. NO.: 98-0036 -----------------------------------------------------------------------=------- Attached please find your revised affidavit regarding the above. We have identified the exhibits by their respective numbers which we believe represent the only changes from the previous version which you reviewed. If the affidavit meets with your approval, please sign and return it to us. Alternatively, please indicate any additional changes or corrections you would like us to make. With thanks. [98-00361ralphmml) LEGAL DEPARTMENT, TOWN OF BARNSTABLE OFFICE OF TOWN ATTORNEY Inter-Office Memorandum October 1, 1998. TO: RALPH CROSSEN, Building Commissioner FROM: ROBERT D. SMITH, Town Attorney RUTH J. WEIL, Asst. Town Attorney Gam' RE: REVISED AFFIDAVIT. OUR FILE REF. NO.: 98-0036 ------------------------------------------------------------------------------- Attached please find your revised affidavit regarding the above. We have identified the exhibits by their respective numbers which we believe represent the only changes from the previous version which you reviewed. If the affidavit meets with your approval, please sign and return it to us. Alternatively, please indicate any additional changes or corrections you would like us to make. With thanks. [98-00361ralphmml] ;; SENDER: I al �vir�ish eceiv� e I m •Complete items 1 and/or 2 for additional services.. v! ■Complete items 3,4a,and 4b. foll Wings ices(`tar an d ■Print your name and address on the reverse of this form so that we can return this ext kffee)* o i card to you. r Ni A Y cz ' I ■Attach this form to the front of the mailpiece,or on the back if space does not 1. E] Addre. ee' Address Z- i permit. /9 9 i d ■Write'Retum Receipt Requested'on the mailpiece below the article number. 2 ] Restrictee Delivery t ■The Return Receipt will show to whom the article was delivered and the date a I delivered. Consult postmaster for fee. C ! O v 3.Article Addressed to: 4a.Article NumberON m CL 4b.Service Type t° �✓�t=�' r� ❑ Registered Certified CD ❑ Expr s Mail ❑ Insured S N — r. ��S..,dV�W 626�f etum Receipt for Merchandise ❑ COD c c VV ,5 g7VN "z 7.Date of Delivery ZCC �. 5.Received By: (Print Name) 8.Addressee's Address(Only if requested W and fee is paid) t ure:(Addres_Aee or Agent) >' X {t k ,' 1{{(' {ti ' i it I 'i iiii N N PS orm 3811, Da m er 1 4 Domestic Return Receipt • UNITED STATES POSTAL SERVICEFirst-Class CI3SS Mail T rRM7�0', 'Postage&Fee es Paid9YPerm_it_No�sG 10_ • Print your name,address, nd ZIP Code-in-this box • j I i Town d Bambbie " B�tptM�0�on IN I OW _ U Lc w 111f'!!tl141f�'1411�ff:If!11i' if i1fiti:111ididlH III f.}A11JII COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC., AFFIDAVIT OF BUILDING Plaintiff(s), COMMISSIONER, RALPH M. V. CROSSEN, IN SUPPORT OF MOTION FOR EMMETT F. GLYNN, RON S. JANSSON, PRELIMINARY INJUNCTION. GENE BURMAN, RICHARD L. BOY, GAIL i NIGHTINGHALE, ELIZABETH NILSSON, ) THOMAS A. DERIEMER, DAVID RICE, ) and KEVIN MINNIGERODE, as they are ) Members and Alternate Members of the ) TOWN OF BARNSTABLE ZONING ) BOARD OF APPEALS, ) Defendants.) I, RALPH M. CROSSEN, being duly sworn depose and say: 1) 1 am employed as the Building Commissioner of the Town of Barnstable. I have been employed as such since August of 1994. 2) It is my understanding from his representations that Chris Keyes is the owner of a business operating at 810 Wakeby Road, Marstons Mills, Massachusetts. This business is known as Gifford Brothers Sand and Gravel, Inc. The property is located in an RF (residential) zoning district where single- family residential dwelling is the only principal permitted use. 3) On May, 1997, 1 caused to be served upon Chris Keyes an order to "...CEASE AND DESIST the new commercial use of the 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 [98-0036/ralpaffl] 1 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss: SUPERIOR COURT C.A. No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC., AFFIDAVIT OF BUILDING Plaintiff(s), COMMISSIONER, RALPH M. V. CROSSEN, IN SUPPORT OF MOTION FOR EMMETT F. GLYNN, RON S. JANSSON, PRELIMINARY INJUNCTION. GENE BURMAN, RICHARD L. BOY, GAIL NIGHTINGHALE, ELIZABETH NILSSON, ) THOMAS A. DERIEMER, DAVID RICE, ) and KEVIN MINNIGERODE, as they are ) Members and Alternate Members of the ) TOWN OF BARNSTABLE ZONING ) BOARD OF APPEALS, ) Defendants.) I, RALPH M. CROSSEN, being duly sworn depose and say: 1) 1 am employed as the Building Commissioner of the Town of Barnstable. I have been employed as such since August of 1994. 2) It is my understanding from his representations that Chris Keyes is the owner of a business operating at 810 Wakeby Road, Marstons Mills, Massachusetts. This business is known as Gifford Brothers Sand and Gravel, Inc. The property is located in an RF (residential) zoning district where single- family residential dwelling is the only principal permitted use. 3) On May, 1997, 1 caused to be served upon Chris Keyes an order to "...CEASE AND DESIST the new commercial use of the 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 [98-0036/ralpaffl] 1 Zoning Board of Appeals. " (See copy attached hereto as Exhibit 11). No appeal of this order was filed. 4) After receiving a written request for enforcement by letter dated September 11, 1997, 1 further investigated the zoning history of the parcel in question and concluded that the only permitted uses on the premises was residential and a salvage yard, which existed by virtue of several variances which were granted in the 1960's. (See copies of variances attached to affidavit of Arthur Traczyk Exhibit 16 through 18 ). As a result of my investigation, I wrote to Mr. Keyes on October 22, 1997 and indicated that "... 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 Section 3-14 of the Town of Barnstable Zoning Ordinance. These uses must immediately CEASE AND DESIST." (See copy of cease and desist order dated October 22, 1997 attached hereto as Exhibit 12). 5) 1 should mention that over a year earlier, on or about March 13, 1996, 1 responded to a question from the Town Attorney's office regarding the locus. At the time I received the inquiry, there was no zoning challenge, only a general question. As such, and faced with the press of the normally heavy work load that my office shoulders, I did not undertake zoning research. Based on that limited inquiry, I stated that I thought that the gravel pit was a pre-existing non-conforming use. It was only after I received an actual request for zoning enforcement that I devoted the office's resources to researching in greater detail [98-0036/ralpaffl] 2 Zoning Board of Appeals. " (See copy attached hereto as Exhibit 11). No appeal of this order was filed. 4) After receiving a written request for enforcement by letter dated September 11, 1997, 1 further investigated the zoning history of the parcel in question and concluded that the only permitted uses on the premises was residential and a salvage yard, which existed by virtue of several variances which were granted in the 1960's. (See copies of variances attached to affidavit of Arthur Traczyk Exhibit 16 through 18 ). As a result of my investigation, I wrote to Mr. Keyes on October 22, 1997 and indicated that ":.. 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 Section 3-14 of the Town of Barnstable Zoning Ordinance. These uses must immediately CEASE AND DESIST." (See copy of cease and desist order dated October 22, 1997 attached hereto as Exhibit 12). 5) 1 should mention that over a year earlier, on or about March 13, 1996, 1 responded to a question from the Town Attorney's office regarding the locus. At the time I received the inquiry, there was no zoning challenge, only a general question. As such, and faced with the press of the normally heavy work load that my office shoulders, I did not undertake zoning research. Based on that limited inquiry, I stated that I thought that the gravel pit was a pre-existing non-conforming use. It was only after I received an actual request for zoning enforcement that I devoted the office's resources to researching in greater detail [98-0036/ralpafft] 2 the zoning history of the parcel, at which point I concluded that the only legal uses on the locus were residential and a salvage operation. 6) On or about, November 12, 1997, Gifford Brothers Sand and Gravel, Inc. filed an appeal from my October 22"d "cease and desist" order. j 7) In December 10, 1997, the Zoning Board of Appeals (hereinafter the "Board"), opened the public hearing where a fundamental question was P P 9 raised as to the legal status of the sand and gravel operations and the other business activities being conducted on the site. 8) The Board continued the hearing after Mr. Keyes and his attorney agreed not to work beyond a line drawn on a map in the custody of the Planning Department. This map restricted work to sand and gravel work several hundred feet from a row of single-family homes to the rear. (See reduced copy of map attached hereto as Exhibit 13). 9) Under the terms of the agreement, Mr. Keyes, on behalf of Gifford Sand and Gravel, Inc., agreed not to engage in any of the activities listed in the cease and desist letters referred to above. These new uses were listed in the October 22, 1997 order as processing of wood waste, processing of fill, screening of fill, depositing of fill, brush, clippings, or any other similar uses. 10) At the continued hearing held on January 7, 1998, after the Board heard testimony, the Board issued its decision upholding my previously-issued cease and desist orders. While the Board found that while there was some evidence of intermittent use of the property for the removal of sand and gravel, there was insufficient evidence to demonstrate that there was any legal, pre- [98-0036/ralpaffl] 3 the zoning history of the parcel, at which point I concluded that the only legal uses on the locus were residential and a salvage operation. 6) On or about, November 12, 1997, Gifford Brothers Sand and Gravel, Inc. filed an appeal from my October 22"d "cease and desist" order. 7) In December 10, 1997, the Zoning Board of Appeals (hereinafter the "Board"), opened the public hearing where a fundamental question was raised as to the legal status of the sand and gravel operations and the other business activities being conducted on the site. 8) The Board continued the hearing after Mr. Keyes and his attorney agreed not to work beyond a line drawn on a map in the custody of the Planning Department. This map restricted work to sand and gravel work several hundred feet from a row of single-family homes to the rear. (See reduced copy of map attached hereto as Exhibit 13). 9) Under the terms of the agreement, Mr. Keyes, on behalf of Gifford Sand and Gravel, Inc., agreed not to engage in any of the activities listed in the cease and desist letters referred to above. These new uses were listed in the October 22, 1997 order as processing of wood waste, processing of fill, screening of fill, depositing of fill, brush, clippings, or any other similar uses. 10) At the continued hearing held on January 7, 1998, after the Board heard testimony, the Board issued its decision upholding my previously-issued cease and desist orders. While the Board found that while there was some evidence of intermittent use of the property for the removal of sand and gravel, there was insufficient evidence to demonstrate that there was any legal, pre-. [96-0036/ralpaffl] 3 existing non-conforming use. Furthermore, whatever sand and gravel removal activity had taken place on the site, it never approached the scope of the current activities even if they were legal. Further, there was no evidence presented to 3 indicate that that there was a legal pre-existing non-conforming use allowing the bringing in of clippings to the site and soil on the site and the use of a screener. The Board noted that the activities being conducted on the site in violation of zoning created significant nuisance and health and safety problems for the abutting residential property owners. (See copy of Board's decision attached hereto as Exhibit 14). 11) 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. 12) 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 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. 13) 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 (abutting land) had started to cause a problem on one side of the pit, beyond this agreed-upon line. [98-00361ralpaffl] 4 existing non-conforming use. Furthermore, whatever sand and gravel removal activity had taken place on the site, it never approached the scope of the current activities even if they were legal. Further, there was no evidence presented to indicate that that there was a legal pre-existing non-conforming use allowing the bringing in of clippings to the site and soil on the site and the use of a screener. The Board noted that the activities being conducted on the site in violation of zoning created significant nuisance and health and safety problems for the abutting residential property owners. (See copy of Board's decision attached hereto as Exhibit 14). 11) 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. 12) 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 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. 13) 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(abutting land) had started to cause a problem on one side of the pit, beyond this agreed-upon line. [98-0036/ralpaffl] 4 14) 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." 15) 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. 16) On or about the first week of July, 1998, 1 went to the site with Jack Gillis from Consumer Affairs to view the uses in operation. I observed many fewer junk autos, a large excavation area, a loam processing operation and associated machinery. The pit area showed a stockpiling of gravel, manure, and loam; much appeared to have been brought in from off-site. Nobody was at the site at all when we drove through. 17) On July 20, 1998, 1 chartered a plane and conducted a fly-over in order to photograph the current uses on site. I was accompanied by Jack Gillis from Consumer Affairs and Frank Schlegel from Engineering. We circled the site several times and took extensive photos of the site. 18) 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. (Exhibit 15). 19) 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 [98-00361ralpaffl] 5 a � a 14) 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." 15) 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. 16) On or about the first week of July, 1998, 1 went to the site with Jack Gillis from Consumer Affairs to view the uses in operation. I observed many fewer junk autos, a large excavation area, a loam processing operation and associated machinery. The pit area showed a stockpiling of gravel, manure, and loam; much appeared to have been brought in from off-site. Nobody was at the site at all when we drove through. 17) On July 20, 1998, 1 chartered a plane and conducted a fly-over in i order to photograph the current uses on site. I was accompanied by Jack Gillis from Consumer Affairs and Frank Schlegel from Engineering. We circled the site several times and took extensive photos of the site. 18) 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. (Exhibit 15). 19) 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 (98-0036/ralpaffl) 5 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. 20) The actions of Gifford Sand and Gravel, Inc. and Chris Keyes have seriously jeopardized my ability to enforce zoning throughout the Town of Barnstable. The flagrant abuse of zoning requirements by one property owner causes other property owners to question whether they need to comply, particularly in a residentially zoned district, where so many greater benefits can be gained through a violation of zoning. This is particularly problematic because the zoning laws rely on voluntary compliance. The insistence by Gifford Sand and Gravel, Inc. and Chris Keyes to continue to engage in activities that are violative of zoning in the face of several cease and desist orders is causing and will continue to cause extreme prejudice and irreparable harm to the public interest and to the residential abutters adjacent to the site. Sworn to under the pains and penalties of perjury this 2z-day of October, 1998. RALPH M. CROSSEN, Building Commissioner, Town of Barnstable 4al en Maloney, Notary Pub! My commission expires 2/2a=04 [98-00361ralpaff1] 6 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. 20) The actions of Gifford Sand and Gravel, Inc. and Chris Keyes have seriously jeopardized my ability to enforce zoning throughout the Town of Barnstable. The flagrant abuse of zoning requirements by one property owner causes other property owners to question whether they need to comply, particularly in a residentially zoned district, where so many greater benefits can be gained through a violation of zoning. This is particularly problematic because the zoning laws rely on voluntary compliance. The insistence by Gifford Sand and Gravel, Inc. and Chris Keyes to continue to engage in activities that are violative of zoning in the face of several cease and desist orders is causing and will continue to cause extreme prejudice and irreparable harm to the public interest and to the residential abutters adjacent to the site. Sworn to under the pains and penalties of perjury this 4�-day of October, 1998. :�7 RALPH M. CROSSEN, Building Commissioner, Town of Barnstable 4al en Maloney, Notary Pub! My commission expirles?JY612004 [98-0036/ralpaffl] 6 ' STABLE . .. _. . -- 'SUPERIOR-COVRT •.,:.� .~,..._ �.�..-�:� -_- . . . . .... _. __ ......._._-,._ram S 576 ... BROTHERS SAND AND Plaintiff --:-- PATRICIA-_L.:-GIFFORD,-MAYNARD _ :T. :GIFEORDr -and BORTOLOTTI N CONSTRUCTIO INC.• _ -..--. efendants -- - ... _. ; AFFIDAVIT OF DEPENDANT PATRICIA L GIFFORD A-pose-and I, Patricia L. Gifford, being first duly sworn on oath _-_-- pose and_sax 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; 2 "I .aim. an owner-•of-the 12-14 acre parcel of Land -located on Wakeby Road, Marstons - Mills _. subject of the above-referenced uitachusetts - which is the 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 , 196*6 and grants an interest in the property. to my husband, along with his brother.Maynard.T. .Gifford, as tenants . i common A;; . A copy of .the Deed is attached hereto as Exhibit _5• ,._I .have reviewed the -deed dated June 27, 1967 recorded with------�,-the._Barnstable.County-R which purportedly tr egistry of Deeds in-Book 1370,•.-Page 386 ;: ansfers a 1!3 -interest in the 12714 acre=_ .parcel ;accated. on Wakeby Road,` Marstons :Mills, ..Massachusetts --.from• my .husband `.William:G.: Gifford �==_and _m brother-in-law - - Maynard T:` Ifford, to Priscilla :5.,.► , , Y :. - - --- - Gifford. _..Said deed also ,- _contains_my..signature .;..A co py of 'the. Deed is attached hereto: Exhibit B.r.. _'_ ____-- 08/24iI995 =I5:45 -- .�_ -- -�--------- 5r787�rr5o029 5087756O29 _ _. - .. .. - -• ._ PAGE'='fl3; - l � _: rites -- •_ .ten. ."...•.��•01,r•: •- �___C - rlr. have _i_ 60 _.. taco lac ver.signinq the deed recorded in Book.. 137.Q ." e.Pa 386• g - 7. I =have reviowed• -the deed"recorded with the Barnstable County Registry of Deeds in Book 1.370, Page 38.6 and I do not believe that the. signature ..... -on--said ..deed..is my, re; _. __...- .. ...__ 8•--Prior•.to the death of_ my-- ; husband in. ..1992I. discussed the existence of the deed.in Book .1370 F-Page 386_-with _- My husband stated-to`me::;that-he -did not be the signature on __said° deed was : .his=' -signature --- --- ., : :and that wneeded tstraighten -this m oatte _ _ 9. -My husband, the-Defendant retained a lawyer .to Took into thiB$matter but nothinzd T. Gifford, g I, -- done by the lawyer;- :. g was t0-- Althotrgh-my-husbanci.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 :_. reasons .._we "failed •"to fallow.: u on .this matter was that Priscilla E. Gifford -a u - p r p rported .owner of theProperty, -- interfered.-with -our.-=operation`=of=the.:pr ty never _- , _.._. -. oper 11. Since the- I950 's -niy"dec"ased 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 ou end loader ceased working; r front- that time, we have continued to sell sand with the assistance of the Defendant Bortolotti Construction, Inc:; • ------15•--We -have made -an arrangement-with -the Defendant Bortolotti Construction, Inc. whereby if anyone contacts 'us to purchase sand or gravel from. our pit we. refer the potential.customer to the Defendant. Bortolotti Construction, Inc. The Defendant Bortolotti --Construction,.,- nc..:�loada :the- sand: fram_.our�pit._::___._:_..__.: "yu$zng its' own'equipment and manpower and. "then delivers it to : the. ° customers location.` - , _`-The -----,Defendant.`.- :Bortolotti Constiuction, .rnc::.pays us $2.0.00,per.truck load for sand -. _ ;. ... ._removes _`from our `'property _ • `.._:: The "-;'fee " to Bortolotti - A Construction, ' Inc. 'averagesapproximately $1.20 per yard; 16: The Defendant Bortolotti Construction, Tnc. also leases an area of land on the subject premises from us. '' The Defendant Bortolotti Construction, Inc. pays us the sum of $440.00 a month rent. In exchange for the rent the Defendant Bortolotti - Construction, Inc. is allowed to leave vehicles on the leased Port'-ion of the property and can store -� stones,..-topsoil,. and wocdchips; materials such as ,Oca 0I1 a eIM „Pttrchasesand=framio pte4 acc rrei=edto=brn fts�own;�oeder^ oa €he=' - =C°ntraator- '- _- '-: _ =ne otiated-a= rice.--simar=to-the-fe :we :ch es arc. ale."--`� — -- .. _ ._... Defendant .. _ Bortolotti Construction 18._After..the -death':"of_..my,husband, in 1991, I .al.Z e my son to - take-over"the operation'arid management-of -the sue' pit. During this period of-time mY son mismanaged the book% ;kzd failed _to .—pay.-bills_-=As..-a."result=_-of_his�mismanagement-of- - - :`k � _real -estate :.taxes fell_in. arrears, - .. 19.:,_I._have •since...-taken:^control .-,of the b8 _mod have entered into""an agreement.-with.''.-the-'Town of Barnb a ent of the. back -"rea'1:estate. .taxes. "Curren le for the :=..P Ym._... -- 'r:to -are up to :Yon�the. paymeat --scheduled :_worked out._:wit a Town of ZQ: Recently, the 'property was inspected by-Piro �d Barry, an _ agent for the Town -of -Barnstable Board of gealt"%k, Mr. Barry informed me that he received. an anonymous EhQ ----. comp a nt stating that we were storing :.and hazardous waste and -materials-on the property; disposing of 21. Mr.. .Barry:visited the. location .approximate.) lour to five times to view the property.-:'.No problems with hak` or .-materials -were - discovered:'Mand -the ro ert �rdous waste _... . . P P �' Was given a clean .=bill -of _--health.- =A::'copy 'of the Bo&ZZ,i of Health Inspection Report is attached. hereto as Exhibit 22 . Since June '27, 1967,':_ahe date of the deed which ' purportedly - transferred . 'an-::.;Interest in the property to Priscilla - E. Gifford, Priscilla E. Gifford has never participated in the operation. of the business izZ any manner; 23. Priscilla E. Gifford has."`never contributed to any of the expenses of .operating the-business nor has she Ov*r requested in-accounting of the bus iness„operation; - i - 24 . Priscilla E. Gifford has never inquired _. about - 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 San _- Inci__is Christo her--.Keyes'�:: . .,. ...and Gravel, -- � - 26 Christopher�Keyes`ia aIsoa�tenant renting e- - _ Subject_property; - - _ . - - Pace on -the x _ . _ • 27 ...:__Mr,, Keyes _has .failed- to _:pay rent for..:his, Ilse -- . _. ... property since I991, se - of -the `--'= - . 08i 1411995 15:45 508'756029 503-7 56i7_9 .. ... . _ ._._.... �ldYYtiYMrY�IQ•O6'YprSYfKI _._.ter=_.._.�.— ._..!>__.r_. ..._ -}_fi-1A- F. ._SY - Y' ... _ ',+` ^F J�.. - �_• ....'t_.. _ —+_ — __ _ cOnstaatEy interfered"wit onr opeiatioii"c£� -. _ the aandp t,_ancf-kas;karassed-=iayself�m_ y-;b=athez—ra law=Ma a yi d - - _androicustome� -' 29:—We initiated- =an action to evict. -___-- .py n .:_• Keyes Pro ert :for failure = brou htt h=aftr oamc t..ion' - he .aubsegtien:tly -entered -into an—agreement with --Priscilla E. Gifford and obtained a power--of attorney from her granting him the right to act -on her behalf-. -- .-When:-Mr.--Reyes znformed m077—ut. _the :Purchase .and--Sale =---. -Agree :a ment nd. -Power '-of -Attorney�.between 'his "cor oration:_and - _ .: - _Priscilla=E Gifford;`r=wa8 -shocked to-learn that -the attorney -- representing Keyes :was the.saute_attorney we had previously retained to ..investigate . th-6-';c.ircumstances. --durrounding _the execution_of the deed. which `purportedly :creates-�an ownership interest iir the property zn'"Friscilla��-E:::Gifford;. 31. When our lawyer informed Mr:::Keyes' lawyer of our conflict of interest claim; =the lawyer withdrew. from the case; _ 32 •—If—tha_Plaintiff--is--granted-the—relief—it—seeks—the—-- 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 buaines"s during :the .pendency_-Of 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 I operation of the business- and our home; 33. Based .upon the statement_ s 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 . Patricia L. Giffor _.. ... - --- _ 88/14/1995 15: 15 5037756V-12 508,7i-r560^9 -------------pAr1 qa-------- The Town of Barnstable Department of Health Safety and Environmental Services Building Division 9�assBM 367 Main Street,Hyannis MA 02601 i63g. �0 A Off �ArFn � Ralph Crossen Fax: 3us=/vu-e2au 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 fmd 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 CERTIFIED MAIL P 339 592 416 R.R.R. P 331 592 416 US Postal Service Receipt for Cedified Mail No Insurance Coverage Provided. Do not use for International Mail See reverse Sent to Street&Number I l5 Post office,State,&ZIP Code Postage $ Certified Fee S Special Delivery Fee Restricted Delivery Fee. N Return Who �U ress T ostageD.. 3 �� � Po a rD ri U) rl Stick postage stamps to article to cover First-Class postage,certif led mail fee,and charges for any selected optional services(See/rant). 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 senile m window or hand it to your rural carrier(no extra charge). f m 2. If you do not want this receipt postmarked,stick the gummed stub to the rigN of he m return add the article,date,detach,and retain the receipt,and mail the article. r R 3. 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Consult postmaster for fee. 3.Article Addressed to: 4a.Article Number E W���I` 4b.Service Type a«'� c°+ [I Registered ❑ Certified[Ic to 'KC�1 O1 ❑ Express Mail Inswad •IrS4mgv� yy\'U5I WVIA ❑ Return Receipt for Merchandise ❑ COD 7.Date of Delivery w 0 , 23- 5.Received By:(Print Name) 8.Addressee's Address(Only if requ sted and fee is paid) t f- � 6.SignVr!:,j4dtassnrA> 1 i t 1 iiC [ m PS Form 3811, December 199 102595-97-B-0179 Domestic Return Receipt UNITED STATES POSTAL SERVICE r,0 Mq t-G s Mail v O - stage_AFees aid T P Q,G P M • Print your name, address, and ZIP Code in this box��-- - -- Town of Barnstable j -Building Division 367 Main SL Hyannis,MA 02601 .>'��.-�,�.��•�-.��--�F. - Ilia,;;�;l;li;;il;,;;;;1i;;1i,i;l;,;;l.l;;ii;;ll;,;i I HENRY L. MURPHY, JR. MURPHY AND MURPHY TELEPHONE (508) 775-3116 J. DOUGLAS MURPHY COUNSELLORS AT LAW F A X G. ARTHUR HYLAND, JR. 243 SOUTH STREET (508) 775-3720 SUSAN MERRITT—GLENNY LOCK DRAWER M E-MAIL ALSO ADMITTED IN CONNECTICUT HYANNIS, MASSACHUSETTS 02601-1 4 1 2 murphlaw rr capecod.net PLEASE REPLY OUR FILE NO. September 11, 1997 NOTARY PUBLIC 11879 Ralph Crossen, Building Commissioner TOWN OF BARNSTABLE 367 Main Street Hyannis, MA 02601 Re : PREMISES AT WAKEBY ROAD, MARSTONS MILLS (ASSESSOR' S MAP 13 , PARCEL 52) Dear Mr. Crossen: I represent Mr. and Mrs . James P. McDonough, immediate contiguous abutters to the above referenced parcel 52 (the "Premises" ) who reside at ill Mockingbird Lane, Marstons Mills with their two minor children aged 17 and 8 . The Premises are located in an RD-1 residential zoning district in which the Principal Permitted Uses are only Single Family Residential dwellings . Stabling horses is allowed as an accessory or Conditional use, and golf courses, family apartments and Windmills or similar energy conversion devices are Conditionally Permitted. Lastly, Open Space Residential developments are permitted by Special Permit . No other uses are authorized by right under the current Ordinance. Notwithstanding the foregoing, the owners and/or occupants of the Premises engage in the mining and processing of sand and gravel obtained from both within and without the Premises . In addition, the Premises appear to have recently been utilized for the production and/or processing of loam, bark mulch and site clearing debris. The owners and or occupant/operators of the Premises have engaged in and continue .to engage in pursuits on the Premises, including the foregoing, that are impermissible as a matter of unilateral right under the Town of Barnstable Zoning Ordinance. Research and review of the records at the Zoning Board of Appeals (the "Board" ) discloses no evidence of necessary relief ever having been allowed by the Board in the nature of variances or Special Permits requisite to the cited activities undertaken on the Premises . i ' 1 You are respectfully requested, pursuant to G.L. c . 40A and the Town of Barnstable Zoning Ordinance, to enforce the By-Law with respect to the above referenced Premises . Despite a somewhat varied history, research indicates that the most recently permitted use (aside from permits for use of portions of the Premises for the construction of certain improvements) applicable to the cited parcel generally and controlling the over all use, is that described in the Decision for Special Permit in Board Docket No. 1969-17 dated February 27, 1969 (herein the 111969 Petition") a copy of which is attached hereto as Exhibit "A" . i The 1969 Petition sought and obtained a Special Permit for i permission to permit the extension of a non-conforming use by the construction of a building and to include the sale of used auto parts from the premises . The 1969 Petition also described the Premises which were the subject thereof as a lot 250 x 2000 feet containing approximately 23 acres whose then alleged "present use" was used for metal salvage, with a then proposed use for used auto parts . The Decision in case number 1969-17, a copy of which is attached hereto as Exhibit "A-111 , describes the Premises as a " . . . 16 acre Parcel . " Furthermore, the 1969 Decision contains the observation that : "Mr. Curley (attorney for the Petitioner) 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 surrounded by woods on three sides and the power line on the back. A copy of the current assessor' s map disclosing the layout of the referenced power line and showing the adjacent, currently developed residential lots is attached hereto as Exhibit "C" . The 1969 Decision concluded that : "Because of the large acreage owned by the Petitioners which surrounds the salvage yard operation, the Board feels that it is not detrimental to the neighborhood. " The Board unanimously voted in the 1969 Decision to grant a Special Permit to William Gifford, Maynard Gifford and Kenneth Borthel (tenant) for the construction of a building to be used for the storage and sale of used auto parts, . Even this use was to be restricted to the period of time during which the Petitioners or the tenant retained ownership of the present 16 acre parcel . Clearly it was requisite that the treed screening areas be retained. The use alleged to be the "present" use of the Premises as described in the 1969 Petition was itself permitted only after obtaining a Variance from the Board in its earlier Decision in Case No. 1964-18 dated April 30, 1964 (herein the 111964 Decision" ) , a copy of which is attached as Exhibit "B" . 2 The 1964 Decision was predicated upon a Petition for Variance dated March 23 , 1964 and filed on April 7, 1964 (the "1964 Petition") which described the dimensions of the lot as 205' x 2500+ with an area 23 acres . The Petition went on to state, amongst other reasons purportedly justifying the Variance, that the proposed area was about 1000 feet from the road. The 1964 Decision granted permission subject to several specific conditions, including: 1 . That the use of the land in the new location [the use was to permit relocation of salvage operations and storage of used parts from a site in Santuit, to the locus] be restricted entirely to that area behind the screened trees; 2 . [Relates to the construction of a building] ; 3 . No trees are to be removed; 4 . [This provision related to clean up of the Santuit operation which had apparently been the prior site for the salvage and storage operation] . It is evident from the records generated from time to time by or at the behest of the landowners and occupants of the Premises that the intentions of the owners and occupants, as Petitioners and the members of the Board of Appeals as they apprehended the situation, considered the entirety of the 16 acre parcel currently referred to as Assessor' s Map 13, Parcel 52 (the Premises) as the subject of a Variance and subsequent Special Permit to enable use of the property for the conduct of an automobile salvage yard and the sale of used auto parts, with the construction of certain non- conforming improvements on the property in the interim. Nowhere in the history of the Board of Appeals records nor apparently in the Building Commissioner' s office does there appear lawful authority under the applicable zoning by-law or ordinance to conduct a contemporary sand and gravel excavation/mining operation, nor to process sand, gravel, bark mulch or other materials, nor to conduct a processing and/or distribution facility on the referenced Premises . Any pretense that the suspect uses are to be permitted as lawful, pre-existing, non-conforming uses must fail in the face of the record of permissible uses under the zoning ordinance and its predecessor by-law. The owners and/or operators themselves repeatedly acknowledged the existence of non-conformity when they initiated requests to construct improvements for the limited uses permitted by the outstanding variance and special permits. 3 You are therefore requested to enforce the Town of Barnstable Zoning Ordinance and State Law by ordering the owners and/or occupants of the cited Premises to cease and desist all operations specifically included but not by way of limitation the sand and gravel mining, excavation and processing, the processing of landscape materials and the temporary storage or transhipment of the same other than those permitted as matter of right under the existing Ordinance and those conforming to the current, express permissions granted by the Board of Appeals in the cited and related cases appearing on the Board' s docket . Thank you for your prompt and considerate attention to this matter. IS ' ncerely , J. Dou g s Murphy P JDM:bb cc : James P. McDonough sys3\daily. let\jdm\crossen. 912 4 _ OF THE Tp`4 i ➢A➢ISTADLr, _ NABS. 9ppp +659• `eQ9 TEa MAR a' TOWN OF BARNSTABLE PETITION FOR VARIANCE SPECIAL PERMIT UNDER THE ZONING BY-LAW To the Board of Appeals, 69 Hyannis,Mass. Date .__rehmga:u2.7__ 19 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 coning by-law to the following described premises. Applicant: ...........William Gifford Maynard._( i;.l:�i_cl......_.........;Saritu tom•„_Massachusett_s__., _ (Full Name) (Winter Address) Owner: ____.__._William,_Gifford,_)}cl•,, yp�x,c1_.G�f 3.:C?,I:t3._........_.....5aat�uit,_.Mas.sachu=tt�__.__. (Full Name) (Winter Address) Kenneth Borthel New Lull [toad. Santuit7 Massachusetts Tenant (if any): _._..__._..._._.._.... -_ ......._.........._........._..................._............__...................._._...._.._ (Full Name) (Winter Address) a 1. Location of Premises ..............Road Newton1-Massachusetts (Name of Street) (Wtiat section of Town) .i. -d b i� ^ 1 �• `1 CZ. 2. Dimensions of lot _._._....�L._e ._..__^_._.__..... ......._...__....^._...._.__....._.....__ Area ............. (Frontage) (Depth) (Square Feet) 3. Zoning district in which premises are located..._................. R.._D.... ....._._._......._...._.._..__.__.........___._-.__.._... 4. llow long has owner had title to the above premises? _......._............3...X.Q.ans................................... _...___.__.__....... 5. How many buildings are now on the lut't 6. Give size of existing buildings _..._.._....__....1" ?...a2._..._._�_._._..1>_.. ---> ..s......_..._...__.__..��. Proposedbuildings __......_.............................u..Y..30............._._..........................__............_...........__................_.................--_.. 7. State present use of premises_........................ ........................_...._._...._........_.........._.._._.._._......._.._..._. 8. State proposed use of premises.......................Used..-auto_parts..__...__.......__._._. ..._...._........................._.____._�_ 9. Give extent of proposed construction or alterotions:...__only additipn of building_.___.____ _..._.........._.__..___.._.__......._.__._..._..__..._..__...... 10. Number of living units for which building is to be arranged _.......none ............... 11 Iluvc you submitted pious for about to the 13uildiug Inspector9 ..........__._Y.?. ....._._.__.....:..__.....____.____._... 12. Ilas lie refused a permit?____...... .._.._...... ....... 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 _.....-seek.-in.the geners3_,L._1.T51....1Gi)1.111Y•....he.1 ...G1(3t1..uI1....5d2)fl .._t2f_..t}1e....pZ O ..__ blems of old cars in areas where there••.,should not,-be,0_ne• of.yoer•.petitoners __..........._.. _._......._.........._.._.r_ _................_...................�...._..._ 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 comp].etely,.._invisible.from the road and Will l�eela�ngec3, t�o_any_,great extent from its present-use.. __.........-_.................. __.._..._...__..__._.----•-•------_...... .__..._._...._.........._...._.........._...........___� Respectfully submitte (Signature �L --- Petition received by _._____�___ �.___.�____�. i� • (.Addr s _ .._.... Hearing date set for 19;..__._ Vilin'., of $20.00 required with this petition. 'Phis feu.. -v also be used for Appeals. (Over) i TOWN OF BA RNSTA.BLF Board of Appeals _-W1LLIAM.._COIF.F0PLD.....&..MUlYAIjD.....GcIFFORD Petitioner Appeal No. ....l. j.�,,.1,• ..........may....21,.r................................. 1969 FACTS and DECISION Petitioner -VILLIAX....CsIFFLIIi,II••••&•....MAYTAIZII...AIFFORDetition on ..........V-0-b.......27.ylg 69, requesting a variance-permit for premises at ......." gj)3t.....j oad ................................... tX in the village of ...Maratons....l�iilla.. , adjoining o Pren>>ses of_....Rvart..--L,......Rako ,.y......F.rcell R.uth.....R. _.V1.111ams. _.._Lori ug.....lonea,.....Ham.a.cl....<Jone.s,......F3....�....�;....p� �ti�$:o......I.;,. o.�...................: for the purpose of D.bt g....p.armio.al n.....to.....vat::y.....the.....Zaniaag.....by_.,.aW.....t a....p�rmi t extension of a non-conforming use by the construction of a and.....t.o....Ine.hide.....th.a.....sal.e....o.t.....us.ad....auto.....par.t.s................................................................................building. ................... Locus is presently zoned in Notice of this hearing was given by mall, 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 proceeding, 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 ...31_15........... ... aG= I'.AZ. .............................May......7.r.............................._ 19 69, upon said petition under zoning by-laws. Present at the hearing were the following members: ........J.ean._.Il earse......................... ...Duf,a.rd....Gne.ins................... Chairman --' ' /r I/ cc I l� 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 The Petitioners were represented by Jo The Attorney stated that the Petitioners were rl Jr. ., r. ,Ee to extend anon-conformgn q the sale of nand auto g nHe by constructing a buildlug'permission use was granted b Parts.. lair. Curley stated that th©goriginal the new building y the Board of App®Ala in 1964. The soli those g is to hous�r salvAgvablo purpose of Petitionersparts on the to secure a premises. Parts from car, a r e It will be necessary for the would be dependent on th© type salvage liconse, but this Appeals. The existing he gra ting of a permit by the Board of building 30t $ 30' would be eonstoruct®ciuld ® pir� Cur and the new stated that the Petitioners own approxImately 14-1Gy further that the operation of the salvage Acres and Middle of the parcel Burro salvage yard would bd located in the Power line on the back, Undy woods on three sides and the It was the opinion of the Board that tiro o31tonaion was not unreasonable, for a salvage requested the intent of the Petitioners io to have anlargerlbcation carry on their business. , and the P®titionere Because of the large gaacreagedOtmedoby Board feels that it is notrdetrimah�aZAlva n g yard operation, the The Board unanimously voted t® to the neighborhood, struction of a building to be used for the storage and grant a Special 1'erstzR t i'®r the con_used auto parts to Willitaw Gifford r g solo of I3orthel, 0tenantl, to be restricted to ttrd aiSSor�I ... Kojmetb which t e or the Te>�aant retain Ownership nd during present Period time during; acre areal. of tale i Distribution:— Board of Appeals Town Clerk .Applicant Town of Barnstable Persons interested Building Inspector .Public Information ' ^) Board of Appeals By ................... F Chairman ouQY't � ..�'°'P e_i I TOWN OF BARN STABLE ' ' Board of Appeals Petitioner Appeal No. _M-18 � ' � ---_pZ"4 - 19 64 FACTS and DECISION Petitioner ' - filed petition on L _ 1 requesting a variance) for premises at in the village of •`�r34.ons �4 T?��_ adjoining premises o n ;�► t A RA2111fift b t- t�A._$onm to- Jn�e. pied L` Rnth Re W1222 a,Evert � Ae for the purpose of 28i= P_ DAD fCcc 'a of TOf,�Cr� �� t _ tMMM of =asd parts ------------- Locus is presently zoned in f aider;oa I3- 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, It A public hearing by the Board of A `® ppeals of the Town of Barnstable was held at the Town )fcice Building, Hyannis, Mass., at 3015 O. P.M. AT .1 rd 19 O. ,Pon said petition under zoning by-laws. �" Present at the hearing were the following member&. I RGJWIT .J• TTd='.3AT R. 3 3rs w f3�31;R3tAD T. Fal I 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. On ...................................................................................... 19......... the Board of I Appeals found Thatcher Gifford, the Petitioner, wan represented by Joseph Boachers Hoq. ?Ir mchor stated that the petitioner was peolring a Variance to move an existing xtonobilo parts salvage business to a new location. Tho location in which tho ititionor prop0000 to locate his business is in a gavel pit near WaS:eby Road i Marston rills, The area is now zoned an Residence D-3 iavaa The business Uch tre petitioner prenently operates in 9antuit Iuss beaomo an eyosore to the T,wr.uni'ry and the petitioner reels that it Mould be in tla boat into:oats of al )rce;nod to movo the business to as area well away from the travelled hi."ay. is tho opinion or m=7 people that the situation can it noic exists creates irdship not only for the village of Sentult, but also for Q otuft a tire Beecher ;a°ed that the proFoced location--1a about i000 feet trot. tho road and is mat a a hollow with a screen of trees ourroaiding tho front part of the lot. He ©ted that: stored vehicles Would not be visible from t m road. 1-ire Bcoch(r irtrror stated that the phluical condition or th proposed location was 6wh i )at it could not be used for reseidesntial. purposes. To donor the owner use of t= end for any purpose would result in a aevmlo hardship to him. 12 people either ooko or were recorded in favor of pet itiouers request and 6 people spoke in ?ooQ itione automobilo parts salvar It was the opinion of the Doard that tbe existing re Aeration in its present location, has created a serious problem for the enti- aiFhborhoode The location of sielvages yards is a dirt icult probl.ora in any area f t:;a towne Howevers it* is im0cwtont that they be placed In areas 22ftm away ram the well-travelled highways and 4ioro the day to day operntione may be :crooned from- vlev an =Uch as possible.ri he locatiioon for Vich nt taenotoithater eeko per . Is lion to muse, seems to rit t s • It -arsons who ota�' proporty near the prop000d location spoke in favor of granting his request an the lancer of two esvila. The Board further found that awing to ond3`iona espocial.ly affecting thisprxoel, but not affecting -onerally V-.e zoning district. in which it to located, a literal onforcersent of he By-Law would involve eubstautial hardalsip to the petitioner and further tha relief could be grantod without nul7if'ying or substantially derrogating fran th .ntent .ard purpose of the zoning by-law. The Board unenimausl'y voted to grant petitioners• request , subject to the lenti�l ondi to ��o� behind the use :ard in the now location be restrictedba Q�st�cted far use in connection with ;roes. 2& That only me building; mcrY or treese ;1;o oalvago yard and such bul3dig must b located behind at Ss3ntuitnbe oonplete to trees are to be ,removed. Imo_ ",1mt the present ,leased of all matorlal with n a .s e.sonable timq Distribution:— Board of Appeals Town Clerk Town of Barnstable Applicant Persons interested Building Inspector 7 A4 1!t' "O y n �Jvr s c S ,0 ;0 . t• 9 of- V IM 4 I� \• `P O ISO J "�•Q top V vV •�58 01' \\ \ O 1'�yy I6 It* 46 •�6 \ \ �� ILA I t6 -�• + I /I'7.w tb \ 1ota 2p y �eLn`- O L \ o \\ r s IL \ \ N 1 C0 SL \ \ I 16.6U A& 0 C. 9 \ s� I.IZAG -A REr: 9-1 W-93 \ 5(0-2 ti~ AC No.uol v,LL v ` 1 of-1s' SL O3 \ 1\ f O n ® \� do ll 3-2 3-1 I.OoAC 3-3 4.14AC m . 2 /.00AC h b \ n \ e64c m 3-4 f� � a /.00AC n5.] I.00AC c\ o so \ ro \r]o 2ov \r7S rso 150 r 13 \ /So A 41 ,) r40. o 4 0 2t].] l > 1.18A C -OO l-3 13-I 1 Io AG W I.00AC_ 0 1.02 AC- o ,o N a N r 30 1, v i ! _ i °F tHE Tp� 1 . � The Town of Barnstable • .nxtvsrnste, - 9 MASS' Department of Health Safety and Environmental Services 1659• �0 ArEONIp►'�A Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner i October 29, 1997 Gregory M. Downs Losordo and Downs P O Box 1637 Sandwich, MA 02563 Re: C810 Wakeby-Road,-Marstons_Mills,MA Map/parcel 013/052 Dear Mr.Downs: Enclosed is the application to appeal my decision to the Zoning Board of Appeals. As you know,this form properly completed with the proper abutters list, is required of anyone appealing one of my decisions. The future operation of the gravel operation in view of this Cease and Desist will be determined at a future time and should not be viewed by you as something you are entitled to. Finally,you mention the restraining order of July 1996 as still being in effect. I only point out that we believe we have complied with this order. Sincerely, Ralph M. Crossen Building Commissioner RMC/km cc: Robert Smith,Town Attorney enclosure Q971029A TOWN OF BARNSTABLE BARNSTABLE, OFFICE OF TOWN ATTORNEY e79 �sg 367 MAIN STREET A�Eo � HYANNIS, MASSACHUSETTS 02601-3907 i 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 (508)790.6283 EILEEN S. MOLLICA, Legal Clerk FAX#(508)775-3344 December 30, 1997 Gregory M. Downs, Esq. Losordo & Downs 78 Route 6A P.O. Box 1637 Sandwich, MA 02563 RE: Gifford Brothers Sand and Gravel, Inc. Assessor's Map 13, Parcel 52 Zoning Board of Appeals No. 97-133 Our Ref. No. 95-0288 Dear Mr. Downs: Enclosed please find a copy of the Memorandum of Agreement which memorializes the agreement you entered into on behalf of your client, Gifford Brothers Sand and.Gravel, Inc. I would appreciate it if you would execute same and return it to me for filing with the Zoning Board of Appeals. I will forward to you a copy of the fully executed agreement for your records. Thank you for your attention to this matter. Sincerely, RJW:cg F uth J. Weil, As O' ant Town Attorney Town of Barnstable cc: Zoning Board of Appeals Vcc: Ralph Crossen, Building Commissioner Encs. [95-0288/downs-2] f. MEMORANDUM OF AGREEMENT Appeal Number 1997-133 Gifford Brothers Sand and Gravel, Inc. In consideration for the granting by the Zoning Board of Appeals of the request by applicant, Gifford Brothers Sand and Gravel, Inc., to continue the hearing on this matter to a date certain (January 14, 1998) so that Gifford Brothers Sand and Gravel, Inc. could collect documentation to present to the Zoning Board of Appeals regarding its pending appeal, Gifford Brothers Sand and Gravel, Inc. agrees, during the interim, as follows: 1. The applicant/petitioner, Gifford Brothers Sand and Gravel, Inc. shall 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', the specific area as outlined before the Zoning Board of Appeals and agreed to therein by Gifford Brothers Sand and Gravel, Inc. 2. Gifford Brothers Sand and Gravel Inc., shall be allowed to undertake excavation consisting of the mining of sand and gravel inside the circled area as outlined before the Zoning Board of Appeal and agreed to therein by Gifford Brothers Sand and Gravel, Inc. 3. Gifford Brothers Sand and Gravel, Inc. shall be allowed to work in compliance with a Consent Order between the State Department of i Environmental Protection and Gifford Brothers Sand and Gravel, Inc., in terms of 95-288/memagree 1 the removal of old junk automobiles buried in the area outlined before the Zoning Board of Appeals and agreed to therein by Gifford Sand and Gravel, Inc. 4. Gifford Brothers Sand and Gravel, Inc. shall refrain from doing anything that was contained in the Cease and Desist Order from the Building Commissioner dated October 22, 1997; to wit, the processing of fill, the screening of fill, depositing of fill, brush and clippings or any other similar uses. Dated: Gifford Brothers Sand and Gravel, Inc. Town of Barnstable by their attorney by its attorney Gregory M. Downs, Esq. Robert D. Smith, Esq. Losordo & Downs, Esqs. Office of Town Attorney 78 Route 6A 367 Main Street P.O. Box 1637 New Town Hall Sandwich, Ma. 02563 Hyannis, Ma. 02631 95-288/memagree 2 JAN. -12' 98 ON) 16:02 DEP i SERO TEL,.5089 16557 P. 002 COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONTMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROT ZMON SOUTHEAST REGIONAL OFCICE TRUDY CORK ARGL•O PAUL CELLUCCI Sec*cG�ry Governor DAVID B. STRUHS Commissioue: MEMORANDXJM DATE: January 12, 1998 TO: Ralph Crossen Bldg. Commissioner Town of Barnstable FROM: Chris Anderson Environmental Engineer Solid Waste Management Section DEP SERO PHONE: (508) 946-2334 CC: Davi3 B. Ellis, Chief Solid Waste Management Section DEP SERO SUBJECT: Consent Order negotiations to clean-up Gifford Bros . Sand and Gravel located off Wakeby Road, Mars-on Mills This memo confirms our conversation today '=egarding Gifford Bres . Sand and Gravel in Barnstable. The Department is currently negotiating an administrative consent order w/ Gifford Bros . that will establish a schedule for taking actions such that Gifford Bros . will come into compliance with Department regulations . These remedial actions will include excavation of a stump dump for loam reclamation, excavation and removal of all solid waste materials, and removal of all metal., tires, other recyclable materials from the property. The consent order pertains only to limited actions and timeframes and does not permit any permanent activities at the site. The Department understands that the town has certain issues pertaining to this property and would like to ensure that the town understands what the consent order entails and that any concerns the town may have can be addressed prior to the consent order being finalized. please contact me at (508) 946-2834 or Dave Ellis at (508) 946-2833 if you have any questions or would like tc set-up a meeting to discuss this site . 20 Riverside [Drive • Lakeville, Mm—haellusetts 02347 • FAX(508) 947-6557 • Telephone (509) 94&1.700 JAN. -12' 98 (MON) i6:0 i DEP / SERO mEL:508947655 1 P. 001 COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL NOTECIION SOUTHEAST REGIONAL OFFICE TRUDY COXE AFGEO PAUI, CELLUCCI Secretary Govomor DAVID B. STRUHS Commissioner FAX COVER SREE'T DATE: 1/12/98 FROM: Chrio Anderson FAX #: (508) 947-6557 TELEPHONE #: (508) 946-2834 PLEASE DELIVER Tom: Ralph Croasen COMPANY NAME: Town of Barnstable ADDRESS: TELECOPIER MACHINE: (508) 790-6230 TOTAL NUMBER OF PAGES: .2 (INCLUDING THIS COVER PAGE) PLEASE CALL IF YOU DO NOT RECEIVE A COMPLETE FAX REMARKS : Ralph, Attached is a grief memc indicating the Department ' s current involvement in the Gifford Bros. site. Unfortunately the Department cannot release the draft consent order as public information. However, Greg Downs indicated that the town was presented a draft at the lae=t hearing and he or Chris Keys can give the town a copy if they want. I hope all the issues can be resolved at his site so that clean-up can proceed. Please call me to coordinate a meeting between the Department and the town to resolve this. Thanks, 20 Riverside Drlre • Lokeriile. liossnchwetts 02147 FAXON) 947.6557 • Telephone (508) 946.2700 oF1Ne The Town of Barnstable RMtNSTABM g Office of Town Manager �'°r .t►`° 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 January 15, 1998 Gregory M. Downs, Esq. Losordo & Downs 78 Route 6A P.O. Box 1637 Sandwich, MA 02563 Re: Gifford Brothers, Inc. and Christopher Keys Assessor's Map 13, Parcel 52 Dear Mr. Downs: As you are aware, in August, 1997, I notified all property-owners within the Town of Barnstable who were engaged in the removal of sand, gravel and soil of the procedure to obtain a permit under Chapter III, Section XIII of the General Ordinances. At your request, a second packet of the applicable materials was sent. To date, neither you nor your client have responded to the offer I made to work with staff to discuss the procedures involved. I am advised that last evening the Zoning Board of Appeals upheld the cease and desist order of the Building Commissioner and found that that your client, Gifford Sand and Gravel, Inc., has no right to operate a sand and gravel pit on the aforementioned location. Based upon that decision and your client's previous unresponsiveness, it would appear unnecessary at the present time for the Town Manager to proceed with any further action with regard to a sand and gravel permit as specified under Chapter III, Section XIII of the General Ordinances. However, if your client is interested in pursuing the process to request said permit, I encourage you, as I have done in the past, to contact Mary Jacobs, Assistant Town Manager, at 790-6205. Sincerely, James D. Tinsley, CPA Town Manager Town of Barnstable Department of Health, Safety, and Environmental Services Consumer Affairs Division oFtK r 230 South Street, P.O. Box 2430 Hyannis, MA 02601 Office: 508-862-4672 BAR SrAB , ; Fax: 508-778-2412 9 MASS. 1639. Jack Gillis, Supervisor TO: Thomas F. Geiler, Director Health, Safety, and Environmental Services FROM: Jack Gillis,Licensing Agent RE: July 20, 1998 Air Photographs of Sand Pit Located at 800 Wakeby Road DATE: July 21, 1998 On July 20, 1998 at approximately 11:00 AM, Ralph Crossen, Building Commissioner, Frank Schlegel, Engineering Records Manager, and myself flew over the sand pit known as Gifford Sand Pit, 800 Wakeby Road, Marstons Mills to photograph the property. On July 20, 1998 at approximately 2:00 PM Chris Keyes called to tell me a plane was flying over his property and was probably taking pictures. He said, "What's the town up to? I guess I am going to have to start bringing in junk cars." He also stated, "Why don't the town just take me to court and let's get this over with." On July 20, 1998 at approximately 4:00 PM Mr. Downs called to ask what was going on. I told him we were reviewing the case per the town mangers request. I asked Mr. Downs about the Department of Environmental Protection Consent Order and he stated there was one and faxed me a statement to that issue. JGAfl j/sandpit/wakeby4.doe Town of Barnstable Department of Health, Safety, and Environmental Services Consumer Affairs Division oF'THE Tq� 230 South Street, P.O. Box 2430 Hyannis, MA 02601 Office: 508-862-4672 BARNSPABM Fax: 508-778-2412 KAss. ArFD1iA0rA Jack Gillis, Supervisor TO: Thomas F. Geiler,Director Health, Safety, and Environmental Services FROM: Jack Gillis, Licensing Agent RE: April 14, 1998 Inspection of Sand Pit at 800 Wakeby Road, Marstons Mills Owner: Chris Keyes DATE: July 21, 1998 The inspection was based on a complaint by an unidentified neighbor that a Mr. Chris Keyes was crushing cars on the property at 800 Wakeby Road, Marstons Millls. A review of Town of Barnstable records showed no current class III license issued to that location. At approximately 11:00 AM I entered the property. I observed a dirt road leading northerly into the property. At approximately 200 feet into the property, a frame for a green house was observed. Within 50 feet of that structure was a number of work style trailers and truck/boat parts, some in parts, some whole. Further in I observed a front-end loader in operation digging into a hillside on the right side of the property. It was noted that the product was that of loam, wood debris, old tires, and some metal parts. This front-end loader was observed transporting products to a dump truck. The dump truck then transported the products to an area within the property and dumped it. Then a back hoe would pick up the products, place the products into a mechanical machine known as a screener. This machine is engine driven to shake the debris and separate the loam from other products such as wood and rocks. The loam would then be placed in a pile within the property in question. The debris was removed and placed in a separate pile. Further observations were that of a very steep wall of sand approximately 50' high. The dirt road within the area ended at the base of the 50 foot high hill. At this time Mr. Chris Keyes approached my vehicle. I identified myself to him and stated my reason for being there. Mr. Keyes invited us to look around. I asked my Keyes if he was crushing cars this particular day or any day in the recent past. Mr. Keyes stated that he had transported vehicles out of the yard to be scrapped. Mr. Keyes also JG/Ifl j/sandpidwakebyldoc stated that the debris being removed was not buried by him and that he felt that the town should allow him to operate as he was doing a good thing by cleaning up the mess Mr. Gifford had left behind. Mr. Keyes further stated he was tired of the town hassling him and would like the town to take him to court to resolve the matter once and for all. After approximately 1 hour and 30 minutes I left the area Witnesses: Tom McKean, Health Director Ralph Crossen, Building Commissioner JGAfi j/sandpit/wakebyldoc L SUPERIOR COURT TOWN OF BARN.STABUOMMONWEALTH OF MASSACHUSETTS TOWN MA1,1AC_? S CFFIt BARNSTABLE DIVISION 415 1 _98 1 (_ - - - i- - - - - - - - - - - - - - - - - - x GIFFORD BROTHERS SAND & GRAVEL , INC . , Plaintiff , r VS . 95-576 PATRICIA L . GIFFORD , ET ALS , Defendants . - - - - - - - - - - - - - - - - - - - - - - - - x DEPOSITION OF CARL HENRY LAMPI Deposition of Carl Henry Lampi , taken on behalf of the Defendants , pursuant to Notice and the Massachusetts Rules of Civil Procedure , before Diane Kelly , a Notary Public , duly qualified within and for the Commonwealth of Massachusetts , at the Offices of Ardito , Sweeney, Stusse , Robertson & Dupuy , 25 Mid-Tech Drive , West Yarmouth , Massachusetts , on September 5 , 1997 , commencing at 9 : 10 o ' clock a . m. DIANE KELLY COURT REPORTING SERVICES P . O . Box 167 CENTERVILLE MA 02632 DIANE KELLY ( 508 ) 771-8222 , 2 1 A p p e a r a n c e s 2 For the Plaintiff : 3 LOSORDO , DOWNS & JASON 4 P . O . Box 1637 Sandwich , MA 02563 5 BY : GEORGE M. DOWNS , ESQ . 6 7 For the Defendants : 8 ARDITO , SWEENEY , STUSSE , 9 ROBERTSON & DUPUY 25 Mid-Tech Drive , Suite C 10 West Yarmouth , MA 02673 11 BY : CHARLES M . SABATT , ESQ . 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DIANE KELLY ( 508 ) 771-8222 3 1 2 3 STIPULATIONS 4 5 6 Formalities as to the proof of the i 7 authority of the Notary Public and sufficiency of 8 Notice are waived . 9 All objections , except as to form, are 10 reserved to the time of trial . 11 Copies of documents may be marked as 12 exhibits in lieu of originals . 13 The reading and signing of the 14 deposition are waived . 15 16 17 18 19 20 21 22 23 24 25 DIANE KELLY ( 508 ) 771-8222 4 1 CARL HENRY LAMPI' 2 of West Barnstable , Massachusetts , called as a I 3 witness by the Defendants , having been first duly 4 sworn by Diane Kelly , a Notary Public within and 5 for the Commonwealth of Massachusetts , was examined 6 and testified as follows : 7 8 DIRECT EXAMINATION 9 10 BY MR . SABATT : 11 Q Mr . Lampi , my name is Charles Sabatt and 12 as I indicated before , I represent Patricia Gifford 13 in an action against Gifford Sand & Gravel Company 14 in the Barnstable Superior Court . 15 You and I had a discussion a minute 16 ago off the record -- 17 A Right . 18 Q -- with regard to sigining the deposition 19 and let me just put on the record that it ' s been 20 explained to you that after the transcript is 21 prepared the stenographer will contact you -- 22 A Yes . 23 Q -- And then you have thirty days to meet 24 with her or whatever arrangements she has to read 25 the deposition and to make corrections in it and DIANE KELLY ( 508 ) 771-8222 5 1 that if you don 't do it within the thirty day 2 period , the deposition will be taken as is or. taken 3 as correct . 4 A I understand that . 5 Q All right . And as I explained to you 6 before , I ' ll be asking you a series of questions 7 this morning and Mr . Downs is present here today 8 and also may ask you some questions . 9 If at any time you don ' t understand ' 10 a question or would like for me to repeat it , 11 restate it , please let me know . All right? 12 A Yes . 13 Q First of all , for the record , I know that 14 you 've told us , but would you give me your full 15 name . 16 A Carl Henry Lampi . 17 Q And what is your business address? 18 A 319 Cedar Street , West Barnstable , MASS , 19 02668 . 20 Q What business are you in? 21 A I 'm in the cranberry business primarily 22 and I do some contracting . 23 Q And are you -- what kind of contracting do 24 you do? 25 A Oh , general excavation . DIANE KELLY ( 508 ) 771-8222 6 1 Q And are you currently working at or do you 2 have any equipment located at Gifford Brothers Sand 3 & Gravel in Marstons Mills? 4 A I have a screening plant there . 5 Q Screening plant? 6 A Yes . Y i 7 Q Could you tell me what that is? 8 A R D Reed forty, it ' s just a portable type 9 screening . 10 Q And R D four zero , forty? 11 A Yes . 12 Q What does it do or how does it operate? 13 A Just screens out material . ` 14 Q And it screens out , what , stone and other 15 debris from sand? 16 A Right . 17 Q How long have you had that set up there? 18 A Currently , I would say two or three 19 weeks . 20 Q And have you been there before? 21 A Yes . 22 Q And when was that? 23 A In the spring . 24 Q Of ' 97 ? 25 A Yes . DIANE KELLY ( 508 ) 771-8222 7 1 Q And any other time period other than the 2 spring of 1997 ? 3 A No . 4 Q How long were you there in the spring of 5 1997 ? 6 A I ' d have to guess on that . I would say 7 that the machine was there maybe -- I would say 8 possibly six weeks or two months . That ' s a guess . 9 Q And did I understand you to say that when i 10 you finished your work in the spring , you left the 11 site? 12 A Yes . 13 Q When you left the site , did you take all 14 your equipment -- 15 A Yes . 16 Q -- with you? 17 A I left a loader there . 18 Q At any time between the spring of 1997 and 19 the current period that you are operating there 20 now, did the lead loader operate at all? 21 A It might have , yes . 22 Q Who would have operated it? 23 A Either myself or Chris Keyes . 24 Q And do you have a business relationship 25 with Christopher Keyes ? DIANE KELLY ( 508 ) 771-8222 i 8 f 1 A No . 2 Q When you operate -- when you were out 3 there in the spring and when you are out there now, 4 are you paying compensation to anyone for that? 5 A No . 6 Q Are you removing sand from that area? 7 A No . 8 Q Is somebody paying you? I 9 A - No , not -- no transfer of money . 10 Q And so what are you doing with the 11 material that you screen or what did you do with 12 the material you screened in the spring? 13 A That has possibly gone on to jobs . The 14 material was brought in by us and we processed it 15 and it was divided up . 16 Q - And who was it divided up with? 17 A Well , Keyes got some and I got some , to 18 compensate for the work . 19 Q And what is it that -- what type of 20 material are you processing with the screener? 21 A Well , we processed some loam for landscape 22 work and that ' s about it . 23 Q And when you say you " processed loam, " do 24 you screen material -- like material that would 25 have tree stumps and branches and brush? DIANE KELLY ( 508 ) 771-8222 9 1 A No . There didn ' t happen to be any there 2 at the time , not in the piles that he owned . 3 Q What about the -- I 'm talking about the 4 ones processed through the screener -- 5 A No , there was -- there might have been a 6 stump or, two of brush , but there wasn ' t that much . 7 Q When you say that you are processing , do 8 you put the material -- what is the -- what does 9 the material consist of before it goes into the 10 screener? 11 A It ' s loam in the rough . 12 Q And where do you typically or where would i 13 you have typically gotten that from? 14 A It comes from various jobs , sites , jobs . 15 Q Where would that be , residential 16 excavation jobs? 17 A Most of it is . We -- might have been some 18 commercial , but not very much . 19 Q Is it fair to say this is topsoil you are 20 bringing in and running through the screener? 21 A Yes , it ' s rough topsoil . 22 Q And you said a moment ago that Christopher 23 Keyes received about half the processed material ? 24 A Yes , he supplied me operators . I had one , 25 but I didn ' t have enough . It was an exchange DIANE KELLY ( 508 ) 771-8222 i 1 10 1 deal . Everything is exchanged . 2 Q An operator is a person , in other words , 3 that would operate the machine? 4 A Yes , and I had my own operators , I run it , 5 but it was an exchange deal . 6 Q And so -- just so that we can clarify it 7 or put it as explicitly as we can , do I understand 8 that your arrangement with Christopher Keyes is 9 that , you let me run my screener on this site and 10 give me operators and I will give you half of the 11 material , is that correct , what your arrangement 12 is ? 13 A We ' re not definitive on the half . It ' s 14 give or take . We try to make it mutually agreeable 15 and I can ' t be there all the time , I have other 16 work , and it ' s just a sideline . 17 Q And so you -- currently , you say that 18 you 've been there two or three weeks ? 19 A I would say three weeks would be right . 20 Q Do you know where he is -- where he is 21 transporting any of the processed material to? 22 A I 'm not always aware of it . I have 23 general ideas where he might be hauling it . 24 Q What are the ideas ? 25 A Well , he has jobs that I know about , but DIANE KELLY ( 508 ) 771-8222 �� 11 1 I 'm not associated with them. 2 Q What are those jobs? 3 A Well , he had a job out to Otis Air Base , 4 but -- I knew of it , but I wasn ' t -- I didn ' t do 5 the work there and -- I did no work there . 6 Q When was the job at Otis Air Base? 7 A Geez , I don ' t know, in the spring . 8 Q And other than the material you processed 9 for him, do you know whether he brought any other 10 material out to Otis Air Base? 11 A I don ' t know what the total supply was . I 12 don ' t know if he purchased some stuff or 13 specialized material or not . He -- we stay out of 14 each other ' s businesses . 15 Q And do you know -- have you -- the 16 material that you processed in the spring, where 17 did you use that material? 18 A Well , I have various jobs around , small 19 jobs , I also have my own work areas . I 've got pits 20 in Marstons Mills , West Barnstable , two in West 21 Barnstable and one in Marstons Mills ., 22 Q Did any of the jobs that you brought your 23 material to , did Christopher Keyes work on any of 24 those jobs with you? 25 A I 'm not -- I can ' t say . I don ' t know. He DIANE KELLY ( 508 ) -771-8222 v 4w� 12 1 might have . I don ' t -- I would have to go back 2 and -- I don ' t know if they were using material on 3 them, I just don ' t know. 4 Q What were some of the job sites , if you 5 remember the names , that you brought material to? 6 A I 'm semi-retired and do small work . I 7 throw a load in' and then I let them process it . I 8 don ' t want the work . I don ' t want the- work end of 9 it . Like I said , I 'm semi-retired . 10 Q Have you removed any material from the 11 Gifford Brothers location in Marstons Mills other 12 the material 'that you 've processed in your 13 screener? 14 A No . 15 Q Do you have any ownership or interest or 16 stock in Gifford Brothers Sand & Gravel , Inc ? 17 A None . 18 Q Do you have any written contracts or 19 agreements with Christopher Keyes ? 20 A No . 21 Q Any with Gifford Brothers Sand & Gravel? 22 A No . 23 Q Have you ever taken any material , fill or 24 process material to the Barnstable town landfill? 25 A No . DIANE KELLY ( 508 ) 771-8222 I I 13 1 Q Do. you know whether material is still 2 being taken there? 3 A I have no information on that . I think 4 it ' s over . 5 Q How long has it been over ; do you know? 6 A I have no information on that . 7 Q And do I understand you to be telling me 8 that you never received any money from Chris Keyes? 9 A That is correct . 10 Q And that you have never given any money to 11 Christopher Keyes ? 12 A No , I have never given him any . 13 Q Other than the processed material you 14 allow him to take as compensation , is there any 15 other -- any other thing of value other than money 16 or processed material that you have given or paid 17 to Christopher Keyes ? 18 A No , no , nothing . 19 Q And the same question but with regard 20 to any other thing of value that you ' ve given to 21 Gifford Brothers Sand & Gravel , Inc . ? 22 A No , I haven ' t . 23 Q And do you have -- are you a partner with 24 either Christopher Keyes or Gifford Brothers Sand & 25 Gravel -- DIANE KELLY ( 508 ) 771-8222 14 1 A No , I 'm no partner . 2 Q Do you have any -- are you involved with i 3 Christopher Keyes jointly in any particular project 4 or site other than the Gifford Brothers site? 5 A No . 6 Q Are you involved in-- the same question 7 with regard to Gifford Brothers Sand & Gravel , are 8 you involved jointly or in some cooperative with 9 Gifford Brothers Sand & Gravel with any other job 10 or site or location? 11 A No . No , I 'm not . I 'm not -- 12 Q Do you have joint ventures or -- -13 A I have no joint ventures with .them. 14 Q When the material is -- was taken out in 15 the spring , the material that you processed was 16 taken out in the spring and the material that you 17 processed is being taken out now, when you take it 18 out for yourself or for your jobs , whose truck is 19 that taken out in? 20 A Generally , my truck, generally , but -- 21 yes , yes , generally . 22 Q When Christopher Keyes takes out processed 23 material that is being used by him on his jobs , 24 whose trucks does he taken it out in? 25 A Generally his own , but if he needs an DIANE KELLY ( 508 ) 771-8222 i 15 1 extra truck, I supply it ; but , that ' s not the 2 general arrangement . 3 Q Before you -- I may have asked you this 4 question or similar question , but before being out 5 on that site with an agreement or an understanding 6 that you reached with Christopher Keyes , had you 7 ever been out there before , worked out there 8 before? 9 A Not worked . When William Gifford was 10 alive , I bought material off of him. Since -- I 11 don ' t believe I 've bought anything from them since 12 he died . 13 Q When you set up the screener on that site 14 in the spring , did you have to obtain any permits 15 or licenses from either the town or state? 16 A No . 17 Q Have you ever had occasions when you 've 18 operated your screener that you 've been required to 19 obtain local permits or licenses? 20 A No . 21 Q What about with regard to state permits or 22 licenses? 23 A It ' s not required . 24 MR . SABATT : I don ' t have anything 25 further . DIANE KELLY ( 508 ) 771-8222 16 1 MR . DOWNS : I have nothing . 2 ( The witness was excused and the 3 deposition adjourned at 9 : 30 o 'clock a . m. ) 4 5 6 7 8 9 10 11 i 12 13^ 14 15 16 17 18 19 20 21 22 23 24 25 DIANE KELLY ( 508 ) 771-8222 c 17 1 CERTIFICATE 2 3 4 COMMONWEALTH OF MASSACHUSETTS ) ss . 5 COUNTY OF BARNSTABLE ) . 6 I , Diane Kelly , a Notary Public duly commissioned and qualified within and for the 7 Commonwealth of Massachusetts , do hereby certify that pursuant to Notice and the Massachusetts Rules 8 of Civil Procedure , there appeared before me on the 5th day of September , 1997 , at 9 : 10 o ' clock a . m. , 9 at the Offices of Charles M. Sabatt , West Yarmouth Massachusetts , the following-named person , to wit : 10 Carl Henri Lampi , who was by me duly sworn to testify to the truth and nothing but the truth of 11 his knowledge touching and concerning the matters in controversy in this cause ; that he was examined 12 upon his oath and his testimony reduced to typewriting by computer-aided transcription ; that 13 the deposition is a true record of the testimony given by the witness ; that the reading and signing 14 of the deposition are waived . 15 I further certify that I am neither attorney nor counsel for, nor related to or employed by any 16 of the parties to the action in which this deposition is taken ; and further that I am not a 17 relative or employee of any attorney or counsel employed by the parties hereto or financially 18 interested in the action . 19 In witness whereof , I have hereunto set my hand and affixed my notarial seal thi day of 20 x'��� . ,�ili� /�a� , 19 9 7 . 21 22 Diane Kelly 23 Notary Public 24 My Commission Expires : March 5 , 2004 . 25 DIANE KELLY ( 508 ) 771-8222 bUJ �. �� U ��� �. I, i r COMMONWEALTH OF MASSACHUSErTS APPEALS COURT CLERK'S OFFICE 1500 NEW COURT HOUSE BOSTON, MASSACHUSETTS 02108 (617) 725-8106 October 28 , 2002 Ruth J: Weil, Esquire Town of Barnstable 367 Main Street, New Town Hall 0Cq 3 0 Hyannis, MA 02601 \ RE : No. 2000-P-0701 GIFFORD BROTHERS SAND & GRAVEL VS . BARNSTABLE ZONING BD. OY 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 pfragraph 1 that begins with "except" and ends with 111956 . " As se 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. `Fsquire James W. Stathopoulos, Esquire Ruth J. Weil, Esquire r 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 bagins with "except" and ends with '11956. " As so modified, the judgment is affirmed. � P:7TE_ . . By the Court, The original of the within rescript will issue in due course,pursuant to PA.R.A.E23 __---API'�j:_SCOURT �� �,. e�,� ,Clerk Date October 28, 2001 r l 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 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. Gif;:ford 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 . 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 I r� gravel pit to the residential neighborhood. Once the contract to provide the fill was completed, Gifford' began 'to use the property I 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 195�6, 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, §§ 25-30t, 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 . zoniLig. 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 neighbor ngr•.property. Nat iona`1 •Amusements, .Inc. v. Boston 2'9 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 r iand Federal Constitutions, and violates the uniformity requirement of c. . 4OA, .. § 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 `ning 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 i,s applied, all.-commercial activity, with the- exception of automobile salvage," is prohibited on-tthe 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 . " As so modified, the judgment is affirmed. So ordered. By the Court (Gelinas, Kantrowitz & Doerfer, JJ. ) , Clerk l Entered: October 28, 2002 6 I and Federal Constitutions, and violates the uniformity requirement bf 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. 60.1, § 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 triF- 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 "1956 . " As so modified, the judgment is affirmed. So ordered. By the Court (Gelinas, Kantrowitz & Doerfer, . JJ. ) , Clerk l Entered: October 28, 2002 6 Tommu turaft4 of filussurliisrfts BARNSTABLE, ss. SUPERIOR COURT No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC. VS. ZONING BOARD OF APPEALS, TOWN OF BARNSTABLE JUDGMENT ON FINDINGS BY THE COURT This action came on for trial before the Court, Nickerson, J., presiding, and the issues having been duly tried and findings having been duly rendered, It is DECLARED: that the plaintiff is not entitled to the relief sought; and It is ORDERED and ADJUDGED: (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 except as to the removal of gravel on that portion of the property appropriated to that use in 1956, and (2) that the Clerk of this Court within=thirty days after entry of this judgment shall send copies thereof to the Board of Appeals, Buildirg Inspector, and the Clerk of the town of Barnstable. - - Dated at Barnstable, Massachusetts, this twenty—first day of July, 1999 . FORM OF JUDGMENT APPROVED: r fus ice of the Superior Court Clerk A true copy, Attest: ���� Cierk I fffuutu unuiPaft4 ,af Rassar4ut ptb BARNSTABLE, ss. SUPERIOR COURT No. 98-87 GIFFORD BROTHERS SAND AND GRAVEL, INC. VS. ZONING BOARD OF APPEALS, TOWN OF BARNSTABLE FINDINGS_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 Barnstable'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-Ahe 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 running north some 1,550 plus feet from its frontage on Wakeby Road. 3. Lorenzo Thatcher("L.T.") Gifford, acquired the Property by deed from his uncle, Charles Gifford, in 1945. 4. In 1945, 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. i i 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 i cash-in-pocket operation. 8. -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 such 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. 2 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-way back from Wakeby Road. Near to Wakeby Road, buildings were erected to accommodate the repair and salvage business. A welding shop was maintained in the buildings. The repair and salvage trade was a use secured by variance from the Zoning Board in 1964. 10. During the Giffords' tenure, portions of the Property were leased to 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 t [See aerial photo of 1989, exhibit 21J. 12. On occasion prior to 1995, construction debris,stumps and brush were buried on the Property. 13. _By 1995, plaintiff was in control--of the Property:'The summer of 1996 brought a significant change to the land. The Towm 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 150,000 tons of gravel was removed. The northwest quadrant 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 r Mockingbird Lane. The buffer of trees between the excavation and the property line was removed. Families living along the southwest side of Mockingbird 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 15. In 1956, the Town revised the zoning by-law to place the Property in a residential zone. The curreni 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 land 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 bui;ldinas, and no permit shall,be issued for the erection, alteration of 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. (Exhibit no. 9). 4 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: I "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." [Exhibit no. 31]. 19. On May 9, 1997, the building 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]. 20. 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 gravel pit and to stop the processing of fill, the screening of fill, and the depositing of fill, brush and clippings [Exhibit no. 21. From the latter Order, plaintiff took an appeal to the Board. After appropriate hearings, the Board issued its.w-ritten decision on January -7, 1998 upholding the building commissioner [Exhibit no. 171. The present action followed in its wake. 5 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.a, Shriners' Hosp.for Crippled Children v. Boston Redevelopment Authy., 4 Mass. 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 novo 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 Property 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 f 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, 303 Mass. 123, 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 govem 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. Beina in a residential zone;the gravel pit was 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 (1954). 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 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 II building boom, the suburban towns of Massachusetts gave rise to a flurry of appellate decisions on the application of zoning law to gravel pits. Town of Wayland v. Lee, 331 Mass. 550 (1954) ("Wayland II"); 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. S. In 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 eastern 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 1995, 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- conforming 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 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, 712 (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 1 removal operations. See Moore 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 land itself is an asset, which by the very nature of the operation, diminishes over time. The use 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 Il: "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 wal 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 C4 presented herein warrant itskadoption. Wayland], 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 Appeals, 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 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). 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 II cases. See Township of Fairfield, supra, at 329, quoting Moore, supra. "[I]n 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 hoe 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).' 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 552. 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 ' It is interesting to note that plaintiff here relies on the Woore case. 10 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 removal, remains the same as pre-1956 operations. Compare First Crestwood Corp. v. Building Inspector ofiViddleton, 3 Mass. App. Ct. 234, 236 (1975). Plaintiff fails, however, to prove that the quality, character and degree remain unchanged. As noted above, plaintiff failed to show any objective intent to use the entire property for gravel mining. The area r , devoted to_the gravel pits at the adoption of the 1956 by-law was limited to the approximately five acres of cleared area in the southernmost portion of the property [See Exhibit no. 25]., Plaintiffs current day operation far exceeds the use as it existed in 1956. Moreover, and probably most detrimental to plaintiff's cause, there has been no showing that the current use is not "different in kind in its effect on the neighborhood." Chuckran, supra, at 712. To the contrary, the Town has shown that the surrounding property owners have bome 11 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. _Murphy, 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 of N. Attleborough,'353 Mass. 671, 675 (1968). Plaintiff's first argument must therefore fail. 13. Plaintiff's 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 i 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- ,fur 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 right to mine that portion of the site appropriated to gravel mining as of 1956. That area is best described 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 II, 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 i 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 ic e of the Superior Court DATED: June 25, 1999 A A t 14 �h Cleric .�.KAM �a 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 Broth d &Gravel . Property Address.......................... 0 Wakeby Road, Marstons Mills, MA Assessors 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 ears 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 arf 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 therapplicant-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. i 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. Attomey 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 norkonforming 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 firstissue and the capping of the landfill. When Mr. Crossen wrote the memo, there_v_+ras 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 2 Town of Barnstable-Zoning Board of Appeals.-Decision and Notice Appeal No. 1997-133 - Gifford Brothers Sand&Gravel Appeal of the Building Commissioner records, aerial photos, zoning information, and tax information. From that information he issued the Cease and Desist Order of October 22, 1997. , 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 1,968 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 scaled inch = 80 feet", • will be allowed to do excavation -mining of sand and gravel - inside the circled area, o 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 cootained 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. Attomey 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. 3 I Town of Barnstable-Zoning Board of Appeals-.Decision and Notice Appeal No. 1997-133 - Gifford Brothers Sand&Gravel Appeal of the Building Commissioner At the January 14, 1998 continuance, Attomey 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. Attomey 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. 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, Attomey 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, Attomey 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.". Attomey 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. Attomey Downs said they adhered to the Cease-and Desist Order dated October 22, 1997. The Board asked Mr. Downs about Appeal Number.1964-1 8 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". Attomey 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, Attomey 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. 4 i ,Town of Barnstable-Zoning Board of Appeals-Decision and Notice a Appeal No. 1997-133 - Gifford Brothers Sand&Gravel• Appeal of the Building Commissioner 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. 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. Crosses 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 cf 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 Bamstable. 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. I 5 Town of Barnstable-Zoning Board of Appeals-Decision and Notice .F Appeal No. 1997-133 - Gifford Brothers Sand&Gravel Appeal of the Building Commissioner 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, itwas 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." Attomey 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 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 all Findings of Fact: At the Hearing of January 07, 1998, the Board unanimously found the following findings of fact as related to Appeal No. 1991-133: 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. 6 Town of Barnstable-Zoning Board of Appeals.-Decision and Notice Appeal No. 1997-133 - Gifford Brothers Sand&Gravel Appeal of the Building Commissioner 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 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 Cle ` ;Z , 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. r Signed and sealed this day of 1998 under the pains and penalties of perjury. Linda Hutchenrider, Town Clerk f 7 i ne i U W n U1 Darnsyaale Department of Health Safety and Environmental Services Building Division BAIM• MASS.IE'iii r 367 Main Street,Hyannis MA 02601 9$ 039. `0� - Off ArEO MA'S A . Ralph Crossen Fax: our-iyu=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. 1 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 r Attorney Gregory M. Downs d i RUE COPYATTEST Attorney Charles Sabatt Robert Smith,Town Attorney Christopher Keyes enclosure Kathleen Maloney, Wary P4blic My commission expims 2/26/2004 CERTIFIED MAIL P 339 592 416 R.R.R. �I HENRY L. MURPHY, JR. MURPHY AND MURPHY TELEPHONE (508) 775-3116 J. DOUGLAS MURPHY COUNSELLORS AT LAW F A X G. ARTHUR HYLAND, JR. 243 SOUTH STREET (S08) 775-3720 SUSAN MERRITT—GLENNY LOCK DRAWER M EMAIL • ALSO ADMITTED IN CONNECTICUT HYANNIS. MASSACHUSETTS 02601-1 4 1 2 murphlawdcapecod.net PLEASE REPLY OUR FILE NO. September 11, 1997 NOTARY PUBLIC 11879 IIL Ralph Crossen, Building Commissioner TOWN OF BARNSTABLE 367 Main Street Hyannis, MA 02601 Re : PREMISES AT WAKEBY ROAD, MARSTONS MILLS (ASSESSOR' S MAP 13, PARCEL 52) Dear Mr. Crossen: I represent Mr. and Mrs . James P. McDonough, immediate contiguous abutters to the above referenced parcel 52 (the "Premises") who reside at ill Mockingbird Lane, Marstons Mills with- their two minor children aged 17 and 8 . The. Premises are . located in an RD-1 residential zoning district in which the Principal Permitted Uses are only Single Family Residential dwellings . Stabling horses is allowed as an accessory or Conditional use, and golf courses, family apartments and Windmills or similar ' energy converlion devices are Conditionally Permitted. Lastly, Open Space' Residential developments are permitted by Special Permit . , No other uses are authorized by right under the current Ordinance. Notwithstanding the foregoing, the owners and/or occupants of the Premises engage in the mining and processing of sand,and gravel obtained from both within and without the Premises . In addition, the 'Premises appear to have recently. been utilized for the prod"uc °ion and/or processing of loam,5 bark mulch and s..it-ez,.clearing z: debris . The owners and or occupant/operators of the Premises have engaged in and continue to engage in pursuits on the Premises, including the foregoing, that are impermissible as a matter of unilateral right under the Town of Barnstable Zoning Ordinance. Research and review of the records at the Zoning Board of Appeals (the "Board" ) discloses no evidence of necessary relief ever having been allowed by the Board in the nature of variances or Special Permits requisite to the cited activities undertaken on the Premises . 1 r You are respectfully requested, pursuapt to G.L. c. 40A and the Town of Barnstable Zoning Ordinance, to enforce the By-Law with respect to the above referenced Premises . Despite a somewhat varied history; research indicates that the most recently permitted use (aside from permits for use of portions of the Premises for the construction of certain improvements) applicable to the cited parcel generally and controlling the over all use, is that described in the Decision for Special Permit in Board Docket No. 1969-17 dated February 27, 1969 (herein the 111969 Petition" ) a copy of which is attached hereto as Exhibit "A" . The 1969 Petition sought and obtained a Special Permit for permission to permit the extension of a non-conforming use by the construction of a building and to include the sale of used auto parts from the premises . The 1969 Petition also described the Premises which were the subject thereof as a lot 250 x 2000 feet containing approximately 23 acres whose then alleged "present use" was used for metal salvage, with a then proposed use for used auto parts. The Decision in case number 1969-17, a copy of which is attached hereto as Exhibit "A-111 , describes the Premises as a " . . . 16 acre Parcel. " Furthermore, the 1969 Decision contains the observation that : "Mr. Curley (attorney for the Petitioner) 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 surrounded by woods on three sides and the power line on the back. A copy of the current assessor' s map disclosing the layout of the referenced power line and showing the adjacent, 'currently developed residential lots is attached hereto as Exhibit "C" . The 1969 Decision concluded that : "Because of the large acreage owned by the Petitioners which surrounds the salvage yard operation, the Board ..feels that it is not detrimental to the neighborhood. " The Board unanimously voted in-the 1969 Decision to- grant:- a Special Permit to William Gifford, Maynard .Gifford and Kenneth BortheIC(tenant) for the construction of a,building to be `°used for theyst>orage and sale of used auto parts,,., Even thisr use :; •',11w was to be restricted to the . period of time during which the Petitioners or the tenant retained ownership of the present 16 acre parcel . Clearly it was requisite that the treed screening areas be retained. The use alleged to be the "present" use of the Premises as described in the 1969 Petition was itself permitted only after obtaining a Variance from the Board in its earlier Decision in Case No. 1964-18 dated April 30, 1964 (herein the 111964 Decision" ) , a copy of which is attached as Exhibit "B" . 2 The 1964 Decision was predicated upon a, Petition for Variance dated March 23, 1964 and filed on April' 7, 1964 (the "1964 Petition") which described the dimensions of- the lot as 205' x 2500+ with an area 23 acres. The Petition went on to state, amongst other reasons purportedly justifying the Variance, that the proposed area was about 1000 feet from the road. The 1964 Decision granted permission subject to several specific conditions, including: 1 . That the use of the land in the new location [the use was to permit relocation of salvage operations and storage of used parts from a site in Santuit, to the locus] be restricted entirely to that area behind the screened trees; 2 . [Relates to the construction of a building] ; 3 . No trees are to be removed; 4 . [This provision related to clean up of the Santuit operation which had apparently been the prior site for the salvage and storage operation] . It is evident from the records generated from time to time by or at the behest of the landowners and occupants of the Premises that the intentions of the owners and occupants, ,as Petitioners and the members of the Board of Appeals as they apprehended the situation, considered the entirety of the 16 acre parcel currently referred to as Assessor' s Map 13 , Parcel 52 (the Premises) as the subject of a Variance and subsequent Special Permit to enable use . of the property for the conduct of an automobile salvage yard and the sale of used auto parts, with the construction of certain non- conforming improvements on the property in the interim. Nowhere in the history of the Board of Appeals records nor apparently in the Building Commissioner' s office does there appear lawful authority- under the applicable zoning by-law or ordinance to conduct a_conte`mporary sand and gravel excavation/mining operation,.. nor to process sand, gravel, bark mulch or other materials, --nor to conduct a processing and/or distribution facility on the referenced Premises . Any pretense that the suspect uses are to be permitted as lawful, pre-existing, non-conforming uses must fail in the face of the record of permissible uses under the zoning ordinance and its predecessor by-law. The owners and/or operators themselves repeatedly acknowledged the existence of non-conformity when they initiated requests to construct improvements for the limited uses permitted by the outstanding variance and special permits . i 3 r You are therefore requested to enforce the Town of Barnstable Zoning Ordinance and. State Law by ordering the owners and/or occupants of the cited Premises to cease and desist all operations specifically included but not by way of limitation the sand and gravel mining, excavation and processing, the processing of landscape materials and the temporary storage or transhipment of the same other than those permitted as matter of right under the existing Ordinance and those conforming to , the current, express permissions granted by the Board of Appeals in the cited and related cases appearing on the Board' s docket . Thank you for your prompt and considerate attention to this matter. S 'ncerely J. Doug s Murphy JDM:bb cc : James P. McDonough A TRUE COPYATTEST. i .2 t. S' Katljlaan Malone No tary Rubric MY aammission expires 2/26/2004 sys3\daily. let\jdm\crossen. 912 4 W � 6 i DAHl9TAaL4 MAO& 1619. oArFe YPT a� ' TOWN OF BARNSTABLE VARIANCE UNDER THE ZONING BY-LAW PETITION FOR SPECIAL PERMIT To the Board of Appeals, Hyannis,Mass. Date rebru-ark' 27, 19 69 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 a nq, Gifl:ot_d_......_Santuit,•,_Massachusetts (Full Name) (Winter Address) Owner: - William•Gifford (Zd•�tygci_Ga t�Q.CSI. _Sclntult,�135SaGhlls�ii (Full Name) (Winter Address) Kenneth Borthel Newton [toad. Sautuit, Massachusetts Tenant (if any): _ _.___...........-.---_ (Full Name) (Winter Address) 1. T,ocation of Preinises -Wake Hoad Newton,Massachusetts_ (Name of Street) (Wtiat section of Town) _ d. - (nP' 2. Dimensions of lot _-__ ���) ---^•-���•• Area _ I (Frontage) (Depth) (Square Feet) 3. Zoning district in which premises are located._- _._R �•- ••••-•------- —_ 4. IIow long has owner had title to the above premises? 5. IIow many buildings are now on the lut7 _--s��_---•---- -- 6. Give size of existing buildings - ��• 1�=�� -s =ti'—e- Proposed buildings ---__.__ - 7. State present use of premises_ M�ei31 S•11ys1td�•"• -------- -- 8. State proposed use of premises— Used auto_gams•-,.•••__ ___ 9. Give extent of proposed canstruction or alterations:. only addition of building _- 10. Number of living units for which building is bo be arranged _none 11. have you submitted plans for above to the Building Inspector ___----YP-S 12. IIas he refused a permit? Vey--------- _ 13. What section of zoning by-law do you ask to be varied? 14. State reasons for variance or special permit: en is a need for the business we - . seek in the general are. ,_�t_1U111d_�Gtu11Y....he.lp_slea[Lup_sRn1e�LtRtQ= •blems of old cars in areas where therg_shpgj� ngt beyQ_ne of yoyr oetitio6ers �hds a fused hip and is not able to work full time and this will enable him-to run a business within •his limited physical capacit The area will be completely_invisible from the any great extent _ from its present use. ____--------- - Respectfully submitte (Signature _ Petition received by -- (Addr s _ Hearing'date set for __ 19'.._. leilinp.. •• or $20.00 required with this petition. 'Phis fui i. also be used for Appeals. (Over) r TOWN OF BARNSTABLE Board of Appeals _-W1LLIAM..COIF.FORD.....&...MAMAU.....CIFFORD Petitioner Appeal No. -.•may_•••21•,•_._._.._._._._.___ 19 69 FACTS and DECISION Petitioner _UT.ILL I 1LX...•CSFF4Iif<1....8c.._,MA.y.NARII...$•Z,FFOIQ4)etition on ...�.._F®.i�.o......2�.�19 69, requesting a variance-permit for premises at __...j$ gb3r....RGad [in the village of -•Ma.ratons....lt�t•1•l.a..., adjoining -premises of._....EV@r.t....L......Raker, y......4Q+-Ruth—R _f-UUams.,._ 1 �0 -_ ones,.....HFa m.1.c1....Jone s,......n:..&.....R....pm e.r••ti$ :�... Ino. ___-_ for the purpose of ob_t extension of a noon--conformingeuse by the constructib y �a t�lding au.d.....t.o....In.c.lade.....the.—gal.e....Q�....us.ed....auto.....pryrt•s......................._............�n o��a�.building Locus is presently zoned in _.a...RQsid�Ce••••D�....mr©u�... _..._ .. 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 proceeding, filed with Town Clerk A public hearing by the Board of Appeals of the Towit -of Barnstable was held at the Town Office Building, Hyannis, Mass., at _.311. .._ ....„ ,_ X= P.D7. ......._.................-May._.7 r 19 69, upon said petition under zoning by-laws. Present at the hearing were the following memberG: _-----Jean_ 11earse......................... I3ufnrd._.Gn i ns. Chairman _.............._................ r , At the conclusion of the hearin g, the Board took 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. Curle J The Attorney stated that the Petition©rs were rleki r. ,r.,sq. to extend anon-co Booking permission the sale of used OnfOr aing use by constructing parts.. fir. Curlo e a building per use was granted by the Board of A y stated that th© original the now building is to house salvageable in 1964. The purpose of loll those parts on the premises. g le parts from cars and to Petitioners to secure a different typo will be necessary for the would be dependent on the of salvage license, but this building The existing buildinting of a permit by the Board of , g would d. removed and the now g 30 $ 30 would be constructed. Mr. stated that the Petitioners own approximately Cyurle acres that the operation of the salvage and Middle of the parcel surroundedgbyyWoods►eon,three bd osided in the Power line on the back. es and the It was the opinion of the Board that the extension requested was not unreasonable, for a salvage tion the intent of the Petitioners Is to havethe anlarg©rjtiva`ion carry on their business. " and the Petitioners. wh .ch surrounds salvage aereagedo�+uedoby board feels that it is not detrimental to they�oi e�eration, the The Doard unanimously voted to g orhood. struction of a building to be us©afor Special POe dfor the con- used auto parts to William Gifford Ma Bale of.Borthel, (tenant s Maynard Gifford mid .Kouneth which t to be restricted to that `a or the Tenant retain own©rship of t�ieurxng perlod of time present , acre arcel. Distribution:— Board of Appeals Town Clerk '.Applicant Town of Barnstable Persons interested Building Inspector , Public Information ' F 1 Board of A BY .......J \J • . Appeals' ............ ChairmanROti©Y'i; TOWN OF BARNSTABLE ' Board of Appeals F 1 Petitioner Appeal No. 19&•1 0 • 1 19614. y FACTS and DECISION Petitioner pTMMM filed petition on Zth 1P4 , 1 requesting a variances for premises at t, in the village of •`� foQ39 # Z� _ adjoining premises o ni• btu d! Rm-pOe b• atlgb:aoil i4 e_Jo!'iBA• p2tK2 L� Rath R..'4111M SI Ike. I for the purpose of P.-V dDe0 fOr 061pz_ge or Vo1 1 on ar tOluge of Food parts -------------- Locus is presently zoned in Naidence D� 1 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. ' �t s �® A public hearing by the Board of Appeals of the Town of Barnstable was -held L ld at the Town � )fcice Building, Hyannis, Mass., at 3115 Tn-n 23rd 1 �0.. P.M. A 'Pon said petition under zoning by-laws. Present at the hearing were the following members: I MUM Chairman 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 Thatcher Gifford# the Petitioners was represented by Joseph Boecher, Hago Mr schor stated that the Yetitianer -wag Aeolsing rat Variance to hove an existing tomobilo parts salvage business to a now lac o location in which the titionor proposos to locate his business is Zag evol pit nonce" �aL'°b'Y R°�I�arstons rills. The area is now zoned an Reace an The business ich tl-A petitioner presently operates in Santuit has bee=O an eyesore to the mr.unit7 and the petitioner reels' that it would to in ti bast Interests of al roe-Mod to move the business to .an area. well away from the travelled highway. Ia the opinion or many people that the situa-ion eas it now, exists creates rdship not only for the vil3age of Santuft, but also for Cotuito Mir. Deechex .aced that the prop oced locaticn is about 1000 Poet from the road and is locat a Hollow with a screen of trees eurromdlag the front part of the lot. He ;rated tha': stored vehicles would sot be visible from t1w rondo 11re Boecher irtror stated that the phyaleal condition of UD proposed location wag Quah at it could not be used for residential purposes. To deny the owner use of th and for any purpose would result in a severe hardship to hime 12 people either )Oka err were reacrded in favor of p+etitiomrs request and 6 people spoke In r)oo itiono it was the opinion of tlie. hoard that the existing automobilo parts salvaE )oration in its pTeaont location, hen created a serious problem for the entim Aphborhood. The Vocation of ealvage yards is a dlff icult probl.om in any Wren C tln towns However, it* in important that they be placed in areas xaftm away rcnci the well-travelled hi iwa fn and whore the day to daf opArIItions may be ereonod from- vlew as much an possibUs The locationartant tuenotolthattion� -eeka permission to uses seems to fit t s • it 3roons who (tat* propo!rty nemr the proposed location spoke In favor of granting ti:a request as the leflaer of two evils+ The Board further fcurxl that owing to onditiona espoci al.y arfocting third prz"a©1, but not affeotin€ onoral ly b� oc .e . zoning district. in which it is located,. a literal onPorcament of he By-Law Would involve substantial hardaUp to the petitioner and t'urther tha ,elief could be granted without nullifying ar substantially derroCdting from th .ntent .and purpose of the zoning by-law. The Bocrd unanl:=ussly voted to grant )etitionere. requert , subject to the olentirely ill ondi�tser� behind thes�a�eIIY 'And in the new location bo restrictedbe coast.-wcted for use in connection with ;roes. 2s That only one buildint; may ;110 salvage yard and such bui]diig�must be located behind thID aereon or treese i 10 trees are to be ,removed. U2",1x t the present location at Ss3ntuit be complete. ;bared of all mutorial within a ze a.ecnable tune! Distribution:— Board of Appeals Town Clerk Town of Barnstable Applicant Persons interested Building Inspector J ,J ^ y v 110 \ J jl tv IV tL \ v a r as 3% ,M NOCIC��101�R4 +� \ \ O t*0.1 e. A� co 0 \ © 1.12 A .E f \ RED: 9-1 W-» rj(o-Z AC \ \ 'y1 � \ \ I Ne•NOY u. v aei u O O 4 (o 3.2 J-I ©\ l.00,nc 3-3 4.1a,� a7 ec Z - 1.0O'd, \ O \ n \ eseC "' 3 -4 c � ti I.00AC 3.5 \ I.00 CO AC \ sec \ / 0 \,qo 249 \175 15-0 i 50 '19 \ DSO R 47 47 140 0 4 c =+7.5 11 m Aso l-I l I.IBAC ?OAc. 1 OOAC N l3./ r0 - ♦ W p 1.02 AC- u .p C v N ` p ` (� � S�� � G�� The Town of Barnstable (J t ` •` Bar ble ; .. Inspection Department � 367 Main Street, Hyannis, MA 02601 ?• '�; 508-790-6227 . Joseph D.;DaLu2i':' Buildi C , g in s t.` i a TO: Warren J. Rutherford, Town Manager FROM: w Joseph D. DaLuz, Building Commissioner SUBJECT: Hyannis Sand and Gravel t DATE: January 29, 1993 The 1968 permit granted by the Board of Selectmen was the topic of a discussion held by the selectmen, I believe, in 1980. As a result of a complaint, I was asked to make an inspection to substantiate the complaint. Accompanied by a representative from the Engineering Department, I went to the site and physically did the inspection. stakes outlining the setbacks were measured and a report submitted. As a result of those findings, Town Attorndy Smith sent a letter to Mr. Harry Gerrior indicating that no violation existed': Since that time I do not recall any further complaints. On October 31, 1988 a Planning Board meeting was held on a Grid Definitive, , ; Subdivision. According to the minutes of the meeting, Harry Gerrior was d ' '. ' ' present to comment. His comments were "that they maintain a 700 'foot green ;;a't�i• •':..;.' belt" and "whether more trees would be cleared and built on as part of the 411iH..a.. definitive plan,, ,V%,, ��'e � After K•pE:',. , receiving comments from various Town departments, the subdivision was r!�•:•`" approved by the Planning Board. It is my opinion, based upon the subdivision approval, legal and subject to rules and regulations frompproa that the process is.. , appropriate departments.'' Paragraph 1 of section 4-7.3 of the Town of Barnstable zoning ordinance entitled scope of Application reads in part: `a`i4.; ::• "(1) any construction demolition development activity, grading, clearing or other land y, except for improvements made as shown on a definitive subdivision plan approved pproved by the Planning Board of the"Town'� '' Of Barnstable and Nevertheless, I spoke with Mr. Sam Lorusso after an inspection with Mrs. Urenas, and asked that he cease his operation until further review. He has `ii;':•'„ cut trees along the rear lots and had started chipping. The 1968 decision was for the removal of sand and gravel with restrictions. .,•" . As long as the activity is not for removal of gravel, it is my opinion that we are dealing with a subdivision and this issue is separate from the sand pit. a. ;i '; M930129A I THE TOWN OF BARNSTABLE i BARl9TSBLE, . OFFICE OF TOWN COUNSEL �ppe,1639. 367 MAIN STREET HYANNIS, MASSACHUSETTS 02601 BRUCE P. GILMORE TEL. (617)-775- 1120 ROBERT D. SMITH EXT. 128 NIGHT LINE AFTER 4 P.M. July 24 , 1980 . (61 7)-775-7570 Mr. Harry J. Gerrior New Phinner' s: Lane Barnstable, "Ma. 02630, Re: Hyannis Sand & Gravel Dear Mr. Gerror; Please be .adv s.ed .that the. 'Board of' Sele:ctiueri have. caused the Building Inspector to make-an ins-pection of. th.6 above premises for the purpose of determining compliance with, the gravel removal permit in the above matter. .. He has reported to the Board of Selectmen that his inspection revealed no violations. Tf you become aware .of any new :developments. in the .future ,.' which might constitute violations, please advise Mr, 4Toseph DaLuz, Building Inspector, accordingly: Very truly. yours , • RDS :cg Robert D. 'Smith cc: Mr. Joseph. DaLuz ; Building Tnspector, Town of Barnstable cc: Board of Selectmen, Town of Barnstable OF OT?-7,94DER r,:m TCTZ. :i:I - Removal of Si�l.l, S.~zd a.nd gavel On June 25, 1968 Pt 10:30 a.m., a public hear .ng- wza., held on tho ar.,nlicltior_ of the _- Eyannis Sand t (?ravel Co., !no. at the To7,,,,-n Office, Bui-l.di_ng in ` r=:r'.ni S for per iSSion to remove to-o So'_', s-,zb•-Soil and Sand is :ler tr,c of Art7.c'.e :47711i of C/hapter III of the Bar-La.?; o the Tovm of Barnstable from .a. parcel of lap: sho�:*n as Phase I on a clan on r'i_le in the Assessor's Office, entitled, i'Pla.n of land in B�ns•cable she�•r�- ing gravel remo7al over ition of Hyannis San- c i ravel Co., Irr., com?)iled b-r Robert G. .'cGlone, Surveyor and ?n- neer, 1L.-ort rlaza, it�ar_n=.s, Scale 1"-200 _,t., dated slay 24, 19689 revised July 31, 1968.t, This hearing 1%1.s properly advertised in accordance ;-rith ',;he terms of t:e by-la*.a. BI C IS IOId Iiyanais Sand E. Gravel Co.., Inc. is hereby granted permission to remove gravel aed sand iron, the property ;-hxm as PI?a.se 1 on the plan entitled, 'Plan of lend. in Barnstable shouning -anvel remo-Ta1 doperati on of Hyarnis 3,?nd _, Cravel Co., Inc., compiled bf_ ;`obert C. 1fcGlone, Surveyor anal. Enri.neer, J.rnort Plaza, iiya.nni.s, jSca.le 1"-200 Ft.9 M li � re and j' Z � i� � � May. 2 , 196 , vi , _ _l�t 31, 1968 . ,ab j:,ct. - i,oi,-,- rcr - ., �ate following conditions: !'To fill Or gravel, or ou'1?E?I' !]!1 er1d.L, 61.aL1 any property line, private roads or public rca d.s, except a 200 ftt 'duffer ::one must continue on i''_? -noyf s Lane. Stakes or other readily 'risible m ir. r-3 i_n: iC«t7.' f; t'rjo l jjn4.tS of allf5ii'2E)) ecavation un-ier this permit must be maintai.n:idl at all times in. areas e�:ca:��;,�ior, is in n: ass. 2 - Nct more than one entrince an_I one e'r' v to t-hn covered this nt_ c-r ed by ti_i� sh?17. 1?e a110'vied. ISO Cntl'2!^CC Cr e:=1t T', O C r2:)irla n Cnt an�i0 T ::E?«��e)d y.� sh _ exceed 110 feet in width and .i_i _s t , e a T^?�4 ire r the. town b S)__.. i . covered from v. �Ovsu r0.^4. •. uo the nit. 3 - The petitioner must re-built' L'resh doles .Rd., an ancient Tray, as soon as possi b.-in. All. ri:b�)is?-i and junk metal now lyi nn on Vie nr.on:�rl- rrast be disposed of, Final b_rade C= dl u_,;iri.r�. be C0 1Vler tt:13? _T_1-1i-:nej T :,2 ne, a pilDliC ,:rF3.. 6 Z s shall ex 1'-i e - e rapn tnr conrv- ed �,. 7a.aL Tbr sso bt 0�7 13t'L G !.r_d r£conl d 2.n ia"" J9ruce ' Jeraula ::. Co'.inty i�?(�latry :f ''ee,1s ���, ll`�� — I�ily r:1:.C/n "_.c1.1. _. ._._..°_t1:1.� ... 1....�.r....�. i'i v.._._.:a _Il1 ._?:• C.n of ' Ce-111n ' n!=ti ln?,,inJ fnon !yc?nis to n1�i b? re71aC�'� t^ Suitable i71iµ I to pro—,?Cl that rc,ad. 8 - A gat" M. , U tx, erected a.t 'l?? ontranco warn-;-n' tie m:-blic of hazardous . conditions, V 9 - Natural �:!_s l•"_nR on Joint nroner -T be left undisturbed t prov_de a ziatiirc"?l scr--en, 0 � y � ::hall not be condu^te:l so 1s to producr:. acoral.ti:m or grater coller-tior. ,ri_th resultant stagnatil.on. 11 - All wood lo,'n nmo.st be put to one side and not removed from the site, and no more than one half of sub-soil or hardening is to be removed from the site. 12 - -11 sro'.1 riles must be leveled as T•rork .nrogresses. 13 - Dead tree-, st.zmns and other debris, i.s to e niled and burned as soon as treatt•.er permits. VAL - The cash bond of '.MO. for each acre rna.dy for reclamation s-all be depositec t,-'th_ a Cape Cod bank to assure com-oliance T-i th a .�necifi^d peri d of time as agreed b - tr..e Selectmen and the pet:i tioner.(��1.���,�� /i •� �� �iLti" •� �i�iD�.-� U. /Y��'')�-.���•�-p-L�J �y�.J�"l. 7-5 - Thi s permit 1hal.l run zor sir_. mo tom, :1t which tim7e, the Board of Selec_tt eta .shall r^vie3 i i ror rencwal, vri th+ cvideC!co of rc clamation being shot-M to t Board, ��ni'_ n,:-zr' . n.{' the con�l' s_Of this nerr�'lt Shall 'be suif_i he _ cient cause for ,_:e re voca* ,_on ":,Hereof, -- 1 - - --- l5 - unfavorable action is talken on Phase II and Phase ITT as shoym on the a ore- mentlioned plan and no ercava-tion of any kind shall be. permitted except in the area shoim as Phase T. This permit t.as granted for the follovinn .reasons: 1 - Tt is one of the few "areas in the Town of 'Barnstable where sand and gravel_ of suitable auality-are available. ^ 2 - The conditions imposed Tzi th this permit should m-1.: the operation of dIlis business relatively unobjectionable. 3 - The operation of this business is or some imuortance to the econcm� of the to-wr and a forced removal from these premises would make a hardship upon the o,rmers and their employees, they were forced out of business, the prices the torn pays, and the public pa�:r:, t or thesermateri als, 'mi.ght well be in- creased through lack.of competition. It was the feeling of the Board that the ^rand ng of this permit Ira- in th:; best interest of the commun-.* ter. A true copy Attest: / C1?rk of Select-men Cam" A Z If4j, -- 01 Z n','t-able •i � r. �• y`,� � ;y�f awe key, - •, � ;\•- .-. ; .,/ t` k\ z :i' h :eli;5 .f4 Ur. •xs �q�•��'�'.'� ���i»-'�t.,�*+• �+'- ,;•-.f v.. � 64 �. .. . . � •� _®� — '_sue""• -..—.--=�:.,��. ! �. � 4�. )•.. v a - T V Memorandum. Town of Barnstable Planning Department ' DATE: January 04, 1995 RE: Hyannis Sand and Gravel-Zoning History TO: Ralph Crossen, Building Commissioner FROM: Art Traczyk, Principal Planner file m-010495.doc Original Zoning 1950 Art 67 Adoption of Barnstable Village Zoning, area zoned RC-1 1951 Art 97 Adoption of Hyannis Zoning, -area zoned Business 1956 Art. 42 Comprehensive Rezoning, RB-I for Barnstable Village, B for Hyannis (no changes in district lines within.rarea). 1960 Creation of IND District Barnstable Village only 1969 Art 99 Recodification No change in district lines 1974 Art. 137 Change IND Line to present configuration. District established 750 feet from Phinney's Lane and 400 feet from Route 132 (750 feet Phinney's Lane area zoned RF-1„400 feet to Route 1.32'zoned B). 1979 Art. 7 Creation of RG District, change from RF-1 area to RG requiring 65,000 sf lot area 750 feet from Phinney's Lane(as per line designated in 1974) 1987 Art 2 Groundwater Protection Overlay District Created 1989 Art 5 Revised Groundwater Protection Overlay District. 1993 Revised Groundwater Protection Overlay'.District. AIAP ! l ! Y_k_ BARNSTABLE vw� POND f.i'` \� ! # �• ter: ' -''� gl. �_,Q _ ... •fir^ ` \� - "• R.; - WiJ ..- .. �x j -� -. • - e f 'I �- RESIDE '. 11 U N A DISTRICT VA r d • �.f, � 1�`' � } B A R N S TABLE � p,�i6,iNAL SA RN STABLE LONINq HINC/!L£Y ?� =POND A 1953 AIAP. - v S 7• Li U: M'M ry A p p i—v b e a R.D -1 P R. RC -I CA.P H I G.HW A Y M ( RTE. 6) RC' � HArHAWAY :C ' :••. PONDS e \\ — P REC/NC T i P'REC/NC T 3 . L .E G E N D MINIMUM MINIMUM SETBACK SIDELINE MA: DISTRICT LOT SIZE WIDTH REQUIREMENT REQUIREMENT 'NUM DESIGNATION (IN.SQ.FT.) (IN FT.) (IN FT. ) (IN FT.).. LO' RESIDENCE LIMITED RESIDENCE A 7500 75 20 71/2 RESIDENCE A - 1 7500 75 20 71/? �IapRC,4c--s UrE r - q ; ! .ti• .ls..d yty:�.` s WA ONDS t .. ' _. i • _•• 4 H�4tLOW � .' a ty4��c �1�'^r•.; S7 03c. PUNV �„ �- • ?T�.d• ?7 •'l_ Y _tip RA ' a - `' -s; '" >-' � _ 3 :"` ems+�:.`j�'fib• '��G y �� f�: .. I .F• +may_ 'r �t f R 1 •�'C -Z 41� N 'ry � •w�S yr t ' �x1;'•A'• .[�� � r -rat: a _ p. >' ;3'K�'r. [.,, a .. l�S� r ! 1 IE s� SIM . •� / �� ' ' 1 fit► ��t ` _ _ � �- �: �- .. I � �� _ � _ 1 q�74 - D Di's tx,c,7 CrFa,.�y�s t-^.�''',cS!: •1`. •��� gib,% °�-'^' -40 COP , k 'ILL dop dr 10 ID - ' � , �ES�✓T zoNi�'' VERTY RF - 1 Isd a"64RNSTABL/ O J wayE ti R ��.! Y -?•t k yi � q � I.S 7 y i� Fvc � Wit.j0 0 In II R Fri O� a RAISAYR.IA - IS2 c.c.c. s "0 *. a'^! .gasp 1 00 O COLLEGE ..�a 7 .�i 11 ,ii 1.4, �•. 'ONO l_._ _, O .. .r9t"t�+ � 1^fN•,; t I•SLATE L,GRANITE '. DIN MOCD .t- ••SHALE R W f �+. 5-CORAL V ' o � R F 1�•i2�,.e �'� >►,v 1�t 4�"� �isi.Msc� k��; �cF.� yv P MIU� OMALD RO apl,La S' +•.y y+y9 �,q�} -HAT CARTON \ F•, 4 W�• HAVIA .r it jcolIcAort I r • 11 _ + -� mil ` � 1 ��5 „L`,:.!/\ �\ r'• ,p Yl KEVIEW RG'sb - *. ' .�LLL `160' ' R D— i ` � �� BEARSE � � ,�. -o VV oa MC J� ND\Ob WEWAQUET \ Ir+ • � ; it • Sl.wr fit± V 1. [NT[R CIA z+�- .,;�, W - •�R+ < LAKE y'w.`t' �I�G t a 2 I ,� r401Y W Si 1".l k C "r� "`. ti b ROD ® u j fY .� L oru O oD /rt IeO UP sr oe �1 1 U ,. n e *.h,'pi •: ;.`.7 fR.wc/S :`i i R4I� !Cft /ao. gwaw„%%%p!J, wrr ME •Ci •{'ems. (L7� c /LONG rr Q 0 D4¢�� o D AIR D— I 22pp,+[,4�� ` l qg7 GRouvOtu���R map j r•nwu r.. a1' � .. MMt... �f � • ;C 6 q p R UT r A � Y cr1.. ' r row war n+.uru.°. rur e°tr �M. 0 e cam F w. s � i Lo S A ,v RQffTE r Y y WP p OLD 1 _ _ now own now_ eet 4 —___ NNW soft WNW '-No .a own on. =W GP _ n A n On 47 1 _ ! EI _ e 1 cl a - A P 6 OVTE � t � E ROUTE P fz w P UL G-P i low 8L Ono W am low low emu 4WD 41ft — Gift - - — y� f V t ' A y _ c 11 � I 1 � P . •••s .. , •• m '' __. • 3 1 0WP -Jly� �P R Y7 - I lot 661188 . r _:.- / • a ..� J III i n �. / J + ,/ �pF ZHE tp�� Town of Barnstable, Massachusetts. Department of Planning and Development 9`"'tN '& MAS& Office of The Planning Board . c� a t7 i639. �0 ,ol fD MAC A 367 Main Street,Hyannis,Massachusetts 02601 (508)775-1120 ext. 190 November 2, 1988 co na cmAune Cahoon, Town Clerk Town. of Barnstable w �C_ Town . Hall 367 Main Street . N Hyannis, MA 02601 W N 00 Q_; Re: Grid DEFINITIVE Subdivision #666 "DEFINITIVE .PLAN OF BARNSTABLE- HYANNIS ROAD SUBDIVISION PHASE .II BARNSTABLE ' ( YANNIS) MASS. FOR HYANNIS SAND & GRAVEL dated 8/1/88, Assessors Map 274, & 295, Parcel 39, 40, & 4-1, 4-2. � . At wily posted meeting of the Barnstable Planning Board held October, 311 ]�988 , it was voted to APPROVE the above- captioned .-DEFINITIVE plan subject to the following: 1) The approval of the Board of Health; 2) All the requirements of the Town' of Barnstable Subdivision Rules and Regulations except that the applicant be granted a waiver from Section 3 . (C) ( 14) "Time of Completion -of Ways and Installation of Municipal Services" , said waiver to be valid for each roadway within, the subdivision until either revised plans. or the certification of no revisions' are submitted to the Planning Board for each roadway; 3) That prior to the start of construction of any of the roads within the subdivision, the applicant, or any successor in title, will either resubmit to the Planning Board, for its approval, the final grading and drainage plans for these roads, .or certify to the Board that there are no changes in grading or drainage; 4) .That a cul-de-sac be included at the western extremity of "Road C" , so as. to prohibit acces.s. to Old Route 132 ',from the subdivision; 5) .Lots 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 14A, all located within the Residential District, shall be reserved for 3 (three) years in accordance with Section 4-H, Open Space., of the Town of Barnstable Subdivision Rules and Regulations. Respectfully, Susan H. Rohrbach, Chairman Barnstable Planning Board SHR:vk cc: applicant engineering Board of Health I j Ot • O D ' G'Q 11' fell tl1/111 , "OI P'sol 1ell�a'l"l"r 0111111cl CI N` too If } 8 t1� / b Nmr°NO T" l01 l0i It 11 t1n/Ill / ° / for If •p to . too 144 Q top if //lot Ig / tog 1/ J � t lol IV wl u/ / r ! gc[11 0�� 4� lop tl lot to y' lot 11 x �� 0 d` / W tot to lot 1 ? lat 1 2 ! got 11 lot tt ' q ! o / 101 11 lot 1 lot t! .7 / tot.tl tot 1 ! / � lot t1 To tog as for if, lot 1 l01 is l01)0 7O UI if toV / IagAI a to n . �•• r too to _ tog is p ■rwnro.°It ABAIID NED C011.1 11WEAL11 ' Ia K, left ECIRIC 6L( an/lef got 11 lot 41— —got 11 lof 41 AJ Vo ; 11 I Of 11L fit • ' —— — —— rr too 11 top 11 lot It top 31. ' I _ lel 1, . h tot to tog 41 . ' lot 11 . 1N%, 17 lot 1 Alt �I lel 1/ lot 11 c tort log 11 tog/1 top 1, 'f e; too 11 401 fu log 11 tOt 1)� F 101 11 ' — rY p •f J 1]1�/ N•.1 1 W1.•J 11 It • I 8.1 \•J 1 1t.l�111 IMA Mtrq t/1.111I . Jl/N I. J 1111/.11 LC Jost N Subdivision �k66' 6 Department of Planning and Development IME'°w " Town of Barnstable � o aA"STAB" ` ASS Department of Public Works. M P tee` �Eo,�.+` 367 Main Street, Hyannis, MA 02601 Office 508-790-6300 Thomas J.Mullen FAX 508-775-3344 Superintendent To: Warren J Rutherford, Town Manager From: Thomas J Mullen, Superintendent, DPW k- Date: January 29, 1993 Subject: Expansion of Sand and Gravel Operation Within a Residential Zone It has come to my attention by way of several phone calls from irate residents in Barnstable Village that Hyannis Sand and Gravel has clear cut all vegetation over a large area of property zoned residential along the easterly side of Phinney's Lane opposite Hathaway's Pond. Is this a prelude to expansion of the Hyannis Sand and Gravel operation and if so was the expansion approved under Article XIII of the General Ordinances of the Town of Barnstable. THOMAS MULLEN Super/i tendent TJM/bw/hysangry cc: Joseph DaLuz, Bldg Com Cynthia Cole Lynne Turner, BCA President .y MOTION was made by D. Martin and seconded by J. Bartell to defer action until 10/3/88 in order to obtain more information from staff. It -was unanimously voted to approve the motion by S. Rohrbach, B. Wilber, J. Bartell , D. Martin, and M. Wharton. E . J. Jaxtimer and J. Polcaro were absent. D. McCarthy confirmed with Mr . Whiting that building C on the plan was a foundation only. DEFINITIVE PLANS PUBLIC HEARING 7 :30 P. M. Subdivision 4666; "Hyannis Sand & Gravel , Phase 11 " ; Levy, Eldredge & Wagner, engineering B. Wilber read the notice of public hearing. Mr . Leo Pelletier, of Levy Eldredge & Wagner engineering, was present to represent the applicant. He stated that on January 11 , 1988, the Board approved the preliminary plan "A" . Further . he Felt that the developer had met all the requirements asked For- te date on the definitive plan submitted. He explained that plan A' s design included land given to the Town to straighten and reconstruct Hyannis-Barnstable Road. Ail the roads crave a 6(') Foot width except for ttie two cul -de-sacs in the res i dent' i a I section. He said lot 47 contains 27 acres which will remain For the use of the Hyannis Sand & Gravel Company and the asphalt plant. He concluded by stating that he was asking for approval of the definitive plan. B. Wilber read the letter from the Board of Health, dated 8/27/88; the Barnstable Fire Department . dated 8/30/88; ComElectric, dated 9/7/88; the Barnstable Fire District, dated 9/20/88; the D. P.D. staff report . dated 9/20/88; the Conservation Commission, dated 9/26/88; and the letter From Stephen Seymour- , dated 9/26/88. S. Rohrbach opened the public hearing. ';e t J Mr. Harry Gerrior was present to comment, as an abutter , that tie had thought that one of the conditions under the permit to operate, issued to Hyannis Sand & Gravel , was that they maintain a 700 foot green belt . He questioned whether mdre trees would be ' cleared and built on as part of the definitive plan. i D. Martin had Mr. Gerrior show, on the plan, where the buffer zone was located. D. McCarthy explained that the area In question is within the Groundwater Protection Overlay District so that a minimum of 3U7. of. the trees must stay. A: Traczyk stated that the recommendation from D.P. D. Included a provision that all purchasers of the property be made aware of the Groundwater and Well Protection Overlay District regulations . The Board members further discussed the buffer zone of concern to Mr. Gerrior. S. Rohrbach asked If there were any other members of the public who wished to speak. There were none. D. Martin asked which sheet contained the topograph I ca I information requested by the D. P.W. In its recommendation. Mr . Pelletier stated that it would be sheet 17 of 21 . B. Wilber reread item # 5 of S. Seymour' s letter . Mr . Pelletier commented that he had- only heard of this request at the meeting. Further , he stated that he had made the roads wider than required and added cul -de-sacs as asked For by the D. P.D. . D. Martin commented that the plan should show the location of the gravel mine. He quoted from the Subdivision Control Laws , ". . . such information will Include major site features , such as existing stone walls , fences , buildings , wooded areas , rock ridges , out croppings , swamps , and water bodies , and existing topography. " He felt that the gravel mine qualified as a major site feature and that it should be so designated on one of the sheets . He further stated that the locus was rnisleading. i I The Board members further discussed the mining operation and its relation to the plan. S. Rohrbach stated that she felt she needed to rely upon the Engineering Department for information on which she could base a decision, and if they needed more time to review the plan, then she felt the Board should defer action. J. Bartell commented that he had no objections to deferring action, but felt that Engineering should have had their report completed by this meeting. I B. Wilber also stated that he had no objections to deferring action, but it appeared that all the necessary information had been filed and that all that would be accomplished by Engineering requesting contours of the entire project would be to cost the developer more money and time. S. Rohrbach commented that she thought S. Seymour was interested in individual lots . B. Wilber stated that that would amount to Individual site plan review. MOTION was made by 0. Martin and seconded by B. Wilber that the Planning Board continue the, public hearing, and take the plan under advisement, In order to schedule a meeting between the D„P..W. , the D.P.D. , and Planning Board members and also that the Planning Board members make a site visit before the subdivision plan ##666 was rescheduled. J. Bartel) suggested adding the Fire District chief to those attending the meeting. D. Martin and B. Wilber agreed to so amend the motion to include other interested Town agencies . It was unanimously voted to approve the motion by S. Rohrbach, B. Wilber, J. Bartell , D. Martin, and M. Wharton. E. J . Jaxtimer and J. Polcaro were absent. APPROVAL NOT REQUIRED PLAN Hyannis Sand & Gravel , Phase iI Mr . Pelletier explained that the ANR plan went alonq with the definitive plan and untill that was approved, the ANR plan was .e-e, 3 Wilber and seconded by J . Bartell that the MOTION was made by B. Planning Board APPROVE END the of the ANR plan Ronald G. the Planning Board's approval Scangillo as one not requiring under the Subdivision Control Laws. The motion was APPROVED by majority vote. Voting in the _ affirmative was S. Rohrbach, J. Bartell , & B. Wilber. Voting in oppostion was D. Martin. Scott R. Condinho/Mary Hayward/Bayside Building; Down Cape Engineering Bruce Besse was present to represent the applicant . He e>.p I a i r red the history of the plan and stated that the plan now before the Board had been approved by the seller . MOTION was made by D. Martin and seconded by J. Bartell that the APPROVE the ENDORSEMENT of the ANR plan Planning Board Condinho/Hayward/Bayside as one not requiring the approval of the Planning Board under the Subdivision Control Laws. `i: So voted unanimously. DEFINITIVE PLANS PUBLIC HEARING Subdivision 666• Hyannis Sand & Gravel Phase II Mr . Leo Pelletier was present with the applicant Mr- . Samuel Larusso. from ttre B. Wi Iber read the staff recommendation � /aR•U�3nd the 10/27/88, t.tie letter from the D.P.W. dated 1Ct/:. I - - letter fr(:)m Mr- . Lamb, an abutter , dated 10/ 12/88- A . Traczyk stated that the applicant would not be able to comPly w i tli r-equ(sst. number six , as stated In the letter From m��kethe aD. P Shift . because there was not 250 feet of land available He further s1..3te(J tFrat U .P.U . had contacted un unable to Mullen reach' I-rimthe D.P.W .- to clarify this request but had been 4 The Board members and Mr. Pelletier discussed the various points addressed in the letters of recommendation. D. Martin questioned the language used in the D.P.D. recommendation number five. He felt it was not a properly recognized legal term. A. Traczyk stated that the D.P. D . felt. comfortable with the use of the term no-access easement . The Board members and applicant further discu_sed this terminology. Attorney Bruce G i )more was present to discuss the abutting parc.,e I of property known as the "drive- in theater" property. The Board members further discussed the possible Iink-up of roads between the two parcels . B. Wilber asked Mr . Larusso if he would consider requesting an extension. Mr . larusso stated that he would not. S. Rohrbach asked if there were any members of the public who whished to speak. There were none. The public hearing portion of the meeting was closed at 8: 45 p.m. . MOTION was made by J. Bartell and seconded by B. Wilber that the Planning Board APPROVE the subdivision ##666, Hyannis Sand & Gravel , Phase II subject to the recommendations made by the D.P. D. , as stated in their recommendation dated 10/27/88, with the exception of number five. The Board members reviewed the recommendation made 'by the D. P. W. to verify those items also included in the D. P. D. recommendation. The Board members discussed .who should be re spon_, i b 1 e for d,D i nci the improvements to the mad. S. Rohr-bar_h stated that she was uncomfortable with t_he rrn it i on road layout because she felt the road layout was predicated on the fact that there would not be additional acc_ess c(>m i n .r Flow other developments or other roadways to the south. S. Larus,o swages ted putting a restriction on tho 't�"1 stat i nq that the 1 c,ts in the southern portion could not Lie _•0 1 (J 1 n for a certain number of years. B. Wilber stated that this might not necessarily be in the Town' s best interest. i There was further discussion of the road Iavout, no-access easements , and possible restrictions placed on the approval . The MOTION was APPROVED by B. Wilber and J. Bartell . Abstaining were D. Martin and S. Rohrbach. D. Martin stated that he wished the rec<Drd to stow tl-jai; hF f abstained because he deplored the process with which the plan was brought to its final decision. ANR PLANS, CONTINUED Mrs. John E. Spenlinhauer, Jr (Georgia) ; Kingsbury Surveying Allen Kingsbury was present to . represent the appIicar-it. lie explained that tale plan was the division of two existing lots . The Board members discussed whether access would be taken From Seaview or Wianno Avenue and the present condition of these roads . D. McCarthy recommended endorsement. MOTION was made by B. Wilber and seconded by J. Bartell that the Planning Board APPROVE the ENDORSEMENT of the ANR plan Mrs . John E. Spenlinhauer, Jr. as one not requiring the Planning Board' s approval under the Subdivision Control Laws . So voted unanimously. PRELIMINARY PLANS Subdivision #701 ; Bayberry Place Attorney Bruce Gilmore was present to reps He explained the history of the property ar ' the parcr� l could have. Further . he recommendation. . f PROF THE T��y �au:�n �tJ�Cr/JtJZ6GLG� 9 , Zk1A3TABLt i ��Q���ZenL a� /• �f/a� ;o MAI& �D 163 q.ASt1Y b� . ante, aeea uJt. J 02601 COMMISSIONERSt (508) 719-1120 Er1. 123 KEVIN O'NEIL. CHAIRMAN THOMAS J. MULLEN, JOHN J. .ROSARIO. VICE CHAIRMAN SUPERINTENDENT PHILIP C. McCARTIN ROBERT L. O'BRIEN FLOTD BILVIA ASSISTANT SUPERINTENDENT GEORGE F. WETMORE September 26, 1988 �l TO: Susan Rohrbach, Chairman, Planning Board FROM: Stephen G. Seymour, P.E. , Project Engineer SUBJECT: Subdivision NO. 666 - Hyannis Sand & Gravel, Phase II I have reviewed the subject subdivision and have the following comments: 1. The plans and profiles of the subdivision roads and adjacent road indicated as Barnstable-Hyannis Road have been very well completed by the Developer' s Engineer.. The plans indicate that Barnstable-Hyannis Road would be realigned and completely reconstructed where it abuts the subdivision. It must be extremely clear in the Planning Boards approval as to whether the improvements to Hyannis-Barnstable Road are to be made by the developer. I recommend that these improvements be made by the developer in full compliance with the Subdivision Rules and Regulations because the• creation of this subdivision as well as the previously approved subdivision on the other side of Barnstable-Hyannis Road, which subdivision is owned by the same person as this subdivisic will so change the nature of the use of this proposed road that reconstruction is required. The additional land areas indicated in the road layout must be accepted by the Town at a Town Meeting. 'Barnstable-Hyannis Road and Old Jail Lane on the east side of Phinney' s Lane should be renamed to avoid confusion. The Department of Public Works has petitioned the Selectmen' s Office for this change in name. 2 . The Board of Health has required that the subdivision needs to be connected to Town Sewers . However, there is no excess capacity in the plant for the addition of this sewage to the treatment plant flow. 3 . Proposed road names for the roads in the subdivision must be submitted for review. q i Susan Rohrbach, Chairman -2- Subdivision No. 666 Planning Board Hyannis Sand & Gravel September 26, 1988 4 . The drainage system relies exclusively on underground leaching facilities to accommodate the stormwater. Complete reliance on these underground leaching systems should not be permitted. These systems become ineffective due to clogging with siltation in 10 to 15 years under normal conditions and much quicker if adequate precautions are not taken during the construction of roads and the development of. sites. Above grade detention basins must be provided at all low points in the road. The detention facilities need to be sized to accommodate the design storm and must be protected from filling with drainage easements. Chain link fences should be constructed around the detention areas if the areas are deep and side slopes steep. As indicated in Section. 4 , Paragraph G.3 .d only in cases where it is deemed necessary and acceptable by the Board and its Engineers may surface water be disposed of by an underground leaching system. Indications of the ground water elevations and the on site soil types should be indicated on the plans. 5 . The subdivision site consists of areas which have -been used for years as a source of gravel and fill. Consequently, the site contains many steep changes in grades and unusual contours . Due to the uniquness of the site I feel it would be in both the Town' s and the developer' s best interest to develop a plan indicating the proposed grading for the site as required under Section 3 , Paragraph C.N. of the Subdivision Rules and Regulations . The proposed contour plan would show the relationship between the grades of adjacent lots which would aid the site plan review and the owner in making sure that the grading of individual lots will not adversly effect adjacent lots. Additionally, the creation of a proposed drainage plan would indicate how the proposed road grades fit into the final grading of the adjacent lots. 6 . Also due to the unusual nature and topography of the site I would encourage the members of the Board to view the site in the field. The Subdividers Engineer should flag where the various roadways will enter onto the adjacent streets so that the adequacy of the site distances and appropriatences off their location may be determined. Susan Rohrbach, Chairman -3- Subdivision No. 666 Planning Board Hyannis Sand & Gravel September 26, 1988 7 . Due to the uniqueness of this subdivision and the varying concerns of different Town Departments I recommend that the various Departments with some interest in the development be brought together in order to coordinate the Town' s review. Additionally the proposed development of adjacent property may impact this subdivision. In order to allow additional time for the review by Town agencies and to resolve conflicting requirements I recommend that the Planning Board request a 30 day extension of time from the developer. i SGS:sdm Robert W. Gatewood, X196 Conservation Administrato ' �fTHET� a '��a1o� Kendall T. Ayers, X196 Conservation Agent t AL"M & t °o s6 IL 9• ems �Q�2�18? 1,�aLGQ�l2 `(Jal121�ZGd.1L4�J2 Judy H. Maier, X140 Office Manager 367 MAIN STREET HYANNIS, MASSACHUSETTS 02601 Karen J. Boduch, X140 Secretary TO: Susan Rohrbach, Chairman, Planning Board FROM: Robert W. Gatewood, Conservation Administrator ( RE: Subdivision 1666, Hyannis Sand and Gravel DATE: September 26, 1988 On behalf of the Barnstable Conservation Commission, I offer the following observations on Mr. Larusso's proposed subdivision: * The open water parcels constructed for and serving in process operations at the plant in the vicinity of lots #21-25 are not of regulatory interest to the Commission where those ponds function in the industrial mainstream and are routinely disturbed therein (i.e. dredged, subjected to process discharge, etc. ) . * My site visit to the property indicated four open water ponds in the vicinity of the main office. Three ponds clearly are part of process operations on- site. A fourth and larger pond, located in close proximity to Barnstable Hyannis Road, has sufficient integrity to be regulated as a bordering vegetated wetland and as land under a waterbody. This pond, appearing on lots #21 and 122 of the September 22, 1988 revised plan, also appears on the U.S. Fish and Wildlife Service's wetland inventory for the Town of Barnstable. The Planning 'Board should consider this a bona-fide wetland for their permitting purposes. * . I assume that the given pond configurations correspond to "edge of water" observations. The foregoing pond has a bordering wetland fringe which should also be indicated. * A portion of the proposed project resides within the Massachusetts Natural Heritage Program's Rare Species 'and Significant Plant Communities map. The petitioner is encouraged to contact the foregoing program to ensure preser- vation of any listed species colonizing the site. The opportunity to comment on the project is very much appreciated. cc: Levy, Eldredge & Wagner GO Commonwealth Electric Company 2421 Cranberry Highway CoMf lectric Wareham, Massachusetts 02571 Telephone (508) 291-0950 i September 7, 1988 David Martin, Chairman Barnstable Planning Board 367 Main Street Hyannis, MA 02601 Re: . Public hearing/action scheduled. 9-26-88 Definitive subdivision plan #666 for Hyannis Sand & Gravel - Assessors Map 274, Lots 39 and 40; Map 295, Lots 4-1 and 4-2 (West Barnstable-Hyannis Junction 115KV, parcels 24-30) Dear Chairman Martin: Be advised that Commonwealth Electric Company has a 270' wide electric transmission line right of way running through the captioned property. We have no objection to the proposed subdivision provided there is no change in the use of the easement area. No structures are allowed within the easement area and any change of grade or use of the right of way by drainage, septic systems, wells, roads, driveways, etc. , must first be approved in writing by Frank Bess, Supervisor Transmission and Distribution, Cape & Vineyard. Sincerely, Commonwealth Electric Company / 4 JoAnn C. Robidoux Right of Way Assistant JCR/lc cc: H. W. Eklund F. C. Bess R. F. Withington TOWN OF BARNSTABLE OFFICE OF l �-)�llTl)LL BOARD OF HEALTH )ML 367 MAIN STREET moo �67 9• t;� HYANNIS, MASS. 02601 AUG 2 3 19aQ August 11, 1988 Mrs. Susan H. Rohrbach Re: Definitive Plan of Barnstable/Hyannis Rd. Chairperson, Planning Board subdivision Phase - 11 Town of Barnstable Petitioner: Hyannis Sand and Gravel Hyannis, Ma 02601 Assessor's Map 274, Parcels 39 and 40 Assessor's Map 295, Parcels 4-1 and 4-2 Engineer: Levy, Wagner & Eldredge, Inc. Dear Mrs. Rohrbach: The Board of Health has reviewed the definitive subdivision in Barnstable and makes the following recommendations: All buildings shall be connected to public sewer. The developer must provide public water to each and every lot in subdivision. Public water lines and all connections must meet specifications and/or rules and regulations of the local water department. Gasoline and oil separators shall_ be provided for all catch basins and a copy of a written maintenance agreement with a licensed hazardous waste disposal firm furnished to the Board of Health. The use and storage of hazardous materials are not authorized at sites located within a zone of contribution to public water supply wells. Tree stumps, brush and buildings debris removed when clearing lots or roads must be disposed of at a licensed solid waste disposal facility. Chipping brush and tree stumps is an acceptable alternative. Burial on site is prohibited. The developer shall have recorded on the deed that underground fuel and chemical storage tanks cannot be Installed or maintained on property within this sub-division. The . existing abandoned underground fuel and chemical storage tanks shall be removed. Mrs. Susan H. Rohrba Chairperson, Planning Board Petitioner: Hyannis Sand and Gravel August 17, 1988 The developer must receive an Order of Conditions from the Conservation Commission, if applicable. Very truly yours, Grover C. M. Farrish, M.D. Chairman CU-A - lam&'ta�e Ann-Jane Eshbaugh times H. Croc er, Sr. BOARD OF HEALTH TOWN OF BARNSTABLE TM/bs cc: Hyannis Sand and Gravel Levy, Wagner & Eldredge, Inc. Barnstable Fire and Water District Town Clerk Health Department Conservation Commission BARNS I ABLE+ II IRE DEPAlt I I1IEN I l!F.,� a �►' :3249 plain Street I e� 18 1217 y o Barnstable, Alassachusclls 02030 617-362-3312 '�wnnln WILLIAM A. JONES III, CHIEF GLENN B. COFFIN, CAPTAIN". FIRE PREVENTION August 30 , 1988 Town of Barnstable Office of Planning and Development 367 Main Street Barnstable , MA 02601 TO: Planning Board Regarding the Subdivision #666 planned for Hyannis Sand and Gravel entitled: Definitive plan of Barnstable-Hyannis Road Subdivision Phase II Barnstable ( Hyannis ) MA , for Hyannis Sand and Gravel . We have examined the proposed plan and we wish to make the following recommendations : All Cul-de-Sacs and streets should meet the Town of Barnstable Sub-division standards relative to size/dimensions as a minimum. All hydrant layouts and placement should be coordinated bet;+een the Fire Chief and the Water Superintendent of the Barnstable Fire District . e • Y� ! Glenn B. Coffi AUG �988 1�Al�NSTA 13LE F.I l�E I )lTl�l(�T P. O. BOX 546 BARNSTABLE, MA 02630 PHONE: (617) 362-6498 WATER DEPARTMENT 1841 Phinney's Lane September 20 , 1988 Susan Rohrback, Chairman . Planning Board Office Town Hall 367 Main Street Hyannis, MA 02601 Dear Chairman: I have reviewed the Definitive Plan of Barnstable-Hyannis Road Subdivision-Phase 2 for Hyannis Sand & Gravel. The engineering firm for the developer has complied with the water departments requirements for water main and hydrant install- ations design . 6 Very truly our -, Jon R. Erickson Superintendent MMF i S _ i Department of Planning and Development STAFF REPORT To : Members of the Planning Board From : Dennis McCarthy, Assistant Planner Re : Subdivision fj666 , Hyannis Sand and Gravel 11 , Hyannis Date : September 20 , 1988 Subdivision #666 consists of 65 lots on approximately 148 acres In four different zoning districts ; B - Business , 1ND industrial , RF- I - Residential and RG - Residential . The subdivision is located in Hyannis and is bordered by Old Jail Lane to the north, Barnstable-Hyannis Road to the east and Phtnney' s Lane to tl-ie west . The Preliminary Plan for this subdivision was approved by the Planning Board on January 11 , 1988. A previous Preliminary Plan was approved on October 19, 1987. Most of Subdivision 1/666 is located within a Groundwater Protection Overlay District , with the northern tip of the subdivision located in a Well Protection Overlay District . STAFF RECOMMENDATION It Is recommended that the Definitive Plan for Subdivision fl666, as shown on sheets I through 17 of a plan entitled "Definitive Plan of Barnstable-Hyannis Road Subdivision, Phase 11 , Barnstable (Hyannis ) Massachusetts for Hyannis Sand and Gravel , " drawn by Levy, Eldredge and Wagner Associates , Inc. , and dated August 1 , 1988 , be approved under all the requirements of the Town of Barnstable Subdivision Rules and Regulations along with the following additional conditions of approval : 1 . That Common Driveway Easements be included between the following lots. A. Between Lots 3 and 4 . B. Between Lots 9 and 10. C. Between Lots 15 and 17 . D. Between Lots 20 and 21 . E . Between Lots 28 and 29. F . Between Lots 32 and 33 . G. Between Lots 39 and 40 . H. Between Lots 48 and 49. 2. That the purchasers , grantees or assigns of lots which fall in whole or in part within the Groundwater Protection Overlay District be made aware of the provisions of Section 3-5., 2 (6) "GP Groundwater Protection Overlay District Regulations , " 'of the Zoning Bylaw of the Town of Barnstable. • 3 . That the purchasers , grantees or assigns of lots which fall in whole or in part within the Well Protection Overlay District be made aware of the provisions of Section 3-5 . 2 ( 7) "WP Well Protection Overlay District Regulations ; " of the Zoning Bylaw of the Town of Barnstable. SUBDIVISION +666 � g Nl4,r, �t1C G n " Cq �(( pR0► Unn•M � V taut t,1 0 1�rIR pNofECto ERIAI OISIRICI_WP 3 OVERLAY OISIRICt CP 1 l01 IT ` 40r� S • 1ot` / tot to G tuean r. tot Is ro k HntPuM� � N Tut/oft / tot to / ..� a tot 144 / tot of LOT 11 �\ / lot TO T tot 11 M L tot 11 (01 13/ / Y A A:'V� tot of l w I tot a for 21 x �`'�ti tot 41 a R �V or tot 10 // I LOT 11 - -ly tots � � � lot is tot 0 / T I for » % tot It tot 31 Q tot ! If / l01 11 tot 11 � / tot ! / I tot 31 lot 71 / tot 11 tot )0 LOT 11 wt >a tot 4 T / tot 31 ' rotUl N. I tot )! (y' cm MN tot le Nrtuut►onat I` ABAND )NED C01 LI)NWEALII ECIRIC SUR It d� a,,/oot for ! tot se tot /! for 11 tot 11 Hl PttD 1 Is)t f0. 1II ; _ rt9 tNn.l RC PLAN Room -#PA Ai- f tot 56 y lot 11 lot se tot!1 tot sl „• 0' tot 91 I lot 11 Q t tot so l01 !r ^a 114�t, l01 39 c ' �11,t A-p lot 10 Q %f LOT t lot e tot 11 for !s for !o lot sT tot so tot a tot,u q�— tot el 6 tot al s Y€ . t t MtMot 1 W„•tit tt Al lN/r n,cuil 1 n.ntr ' d8.y �aiyl I t.c.j,�ti us1�w 1 1vN r. T r. ,. i,.. �: The Town of Barnstable ►►• Inspection Department kX11" 367 Main Street, Hyannis, MA 02601 508-790-6227 Joseph D. DaLuz ' Building Commissioner TO: Warren J. Rutherford, Town Manager FROM: Joseph D. DaLuz, Building Commissioner SUBJECT: Hyannis Sand and Gravel DATE: January 29, 1993 The 1968 permit granted by the Board of Selectmen was the topic of a discussion held by the Selectmen, I believe, in 1980. As a result of a complaint, I was asked to make an inspection to substantiate the complaint. Accompanied by a representative from the Engineering Department, I went to the site and physically did the inspection. Stakes outlining the setbacks were measured and a report submitted. As a result of those findings, Town Attorndy Smith sent a letter to Mr. Harry Gerrior indicating that no violation existed. since that time I do not recall any further complaints. on October 31, 1988 a, Planning Board meeting was held on a Grid Definitive subdivision. According to the minutes of the meeting, Harry Gerrior was present to comment. His comments were "that they maintain a 700 foot green belt„ and "whether more trees would be cleared and built on as part of the definitive plan". After receiving comments from various Town departments, the subdivision was approved by the Planning Board. It is my opinion, based upon the subdivision approval, that the process is legal and subject to rules and regulations from appropriate departments. Paragraph 1 of section 4-7.3 of the Town of Barnstable zoning Ordinance entitled scope of Application reads in part: "(1) any construction, demolition, grading, clearing or other land development activity, except for improvements made as shown on a definitive subdivision plan approved by the Planning Board of the Town of Barnstable and .". Nevertheless, I spoke with Mr. sam 'Lorusso, after an inspection with Mrs. Urenas, and asked that he cease his operation until further review. He has cut trees along the rear lots and had started chipping. The 1968 decision was for the removal of sand and gravel with restrictions. As long as the activity is not for removal of gravel, it is my opinion that we are dealing with a subdivision and this issue is separate from the sand pit. M930129A R296 047, LOC 0040 CTY 04 TDS 100 BA KEY 412841 ----' LING ADDRESS------- FCA 4101 P C S 00 slo YR PARENT 1 CAPE COD AGGREGATES CORP MAP AREA 1006 JV N T G 0000 P 0 BOX 96 SFI SP21 SP3 UT1 UT2 SQ FT 7360 HYANNIS, .11 A 0 2 t':',0 1 AYS 1540 EYB 1965 ORS CONST 0000 LAND 1043SOO IMP 117900 OTHER -----LEGAL DESCRIPTION---- TRUE NKT 1161700 REA CLASSIFIED #LPN0 4 1 ,043f800 ASO LND 1043800 ASO IMF 1.17900 ASO OTH #BLDG(S)-CARD-1 4 88,200 DESCRIPTION TAX YR CURRENT EXEMPT TAXABLE #BLDG(S)-CARD-21 4 24,700 TAX EXEMPT #BLV(3(S)-CARD-3 4 5,000 RESIDENT'L #PL 40 READY NIX WAY OPEN SPACE #DL LOT 47 COMMERCIAL #SR PROCESSED PATH INDUSTRIAL 1161700 1l61700 1161700 #SR CAROL CIRCLE #TAB 2675.136 #JFAB 542.72 #RR 2.176 SPLITOS2187 EXEMPTIONS SALE 03/89 PRICE I ORE C116997 AFO v N .LAST ACTIVITY 0131,113191 FCR N p- M: A I �ZN 7 all. _7 14 2o, 14 �,l C Aw A U -1w. 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ROAD D= CEMENT COURT i LOT HYANNIS MA QUARRY LANs ` 0260i ROAD E= Q -- H �' - ". \ ROAD F= READY MIX WAY_ - ;., ..� � ROAD G= _ GRAVE=.. PLACE _ ,�, \ '`• !` �� i , �AT UNDER THE SUBDIVISTOA� CERTIFICATE 65418 ROAD H= _CAROL CIRCLE _„_ _ I c• CERTIFICATE 108771 I LOT i2 c� z ��` -`' l': Ufa, T f ' T i rC) �\L� L LA �'��T IS RL'e t.J ���D � '/ LOT 13� J cr / `' DEED 5041/284 �\ `y �� ��' � AWB STA LE PLANNING BOARD ta ASSESSORS MAPS: 274 PARCEL 39,40 IZF 29 AR 4-1.4--_2_ I / � ? ; �d - Crj j LOT 113 T 22 ZONING DISTRICTS: RESIDENTIAL RG RESIDENTIAL RF-1 ! / / LOT 47 . ,�,� Q4 INDUSTRIAL IND BUSINESS B _E � �" 4' LOT 10 - a t �J (u - AREAS: 65 LOTS 5,903,820.68 SF ROADS 431,094.60 SF 2 w f I I TOTAL SUBDIVISION 6,334,914.28 SF i REALIGNMENT 1 U9`515.�52 5F / LnT O 11 r I TOTAL PARCEL 6,4-44,429.60 SF I ' APPLIC_/, . ;ON DATE _ - ,�� LOT 8 SIGNED DATE � w ?S"-4 �. a .�' LOT 3 LEGEND. ,y' � �� 2 ��-• l L 3 ' i LOT 2 ii '� El BOUND TO BE SET / - 31 '1 / ,'' �Y� o EXISTING BOUND �Q 2 ?� ,r LOT 5 Q LOT 27- = \ �� ' � �/ \ OF BA STABLE E EBY CERTIFY OF THE TOWN! _0 PROPOSED HYDRANT r w LOT 7 O x ,_4 3 Y THAT N � THE 0110E EXISTING HYDRANT �:� OF APPROVAL OF THIS PLAN BY THE BARNSTABLE ` LOT s '� ,-'.,•f '/� Z'��' PLANNING: BOARD WAS RECEIVED AND RECORDED AT LOT32 32 THIS OFFICE AND NO NOTICE OF APPEAL WAS RECEIVED LOT 34 DURING THE TWENTY DAYS NEXT AFTER SUCH RECEIPT LOT 28 LOT s AND RECORDING OF SUCH NOTI E. —•-- LOT 4 Z 74- �Z LOT y 9 l ,: �� f LOT 36 11' LOT 3 a .J — _ DATE TOWN C SUBJECT TO COVENANT FOR CONSTRUCTION - ._.�- ,� _ �;�--r C`• LOT 37 2 q-2" OF WAYS AND INSTALLATION OF UTILITIES I ROSERT H. - — — -. 2.f s• �!-3 AND MUNICIPAL SERVICES PROVIDED TO SERVE G ODWIN LOT 46 _ {} ANY LOT 1MTHIN SAID SUBDIVISION DATED � Z7 � � f--- _ -�- .�� "� � �\� \ ____ _ LOT 35 � . HYANNIS PORCHE q- ABAN ON ED CC) �` -- •; W 2 ,�, 1 CERTIFY THAT THIS PLAN HAS BEEN PREPARED IN CONFORMITY DEC. 1, 1988 AUDI INC. LOT 2 2 Z '1y_ y �' E•CT + ;, EME T 1 N WITH THE RULES AND REGULATIONS OF THE REGISTERS OF DEEDS ' 3 4122 00s yy \. • 1 ^ OF THE COMMONWEALTH OF A M SSACHUSETTS _ RES1 NTIAL RG a LOT 58 LOT 45 o LOT LOT 42 r z ae N RESID TiAL RF— �r �-- .. ._._ _ _..... _. . �/ �. -- 27y- 4t_z E3 LOT 56 mil' ►� 2`1S'-•Y- y SEE DEED 6K. 1531 PG. 227 DAME R G! TIERED LAND SURVEI 7R _ i 27v- L B LOT 41 PLAN 8K. 60 PC. 55 • � � T �����' LOT 59 LOT 54 � � LOT 38 \ 7 V3,f. b/ 2 LOT ` 0 LOT 60 � �- 2t NOTE: THIS PLAN IS BASED UPON LC. PETITIONERS PLAN 4115A AND OTHER yO j LOT 57 �. e FOR BOUNDS SHOWN DOES NOT REPRESLANS AND DEEDS OF ENT NT AND EXCEPT {} H 22 ` - �JY LOT 39 ,� A COMPLETE COM?vIONINEALTH v' Y9 Z Y yj Z��� , 21S• 1 `�� �1 LOT mot) SURVEY ON THE GROUND BY LEVY, ELDREDGE AND WAGNER LOT 1 OT 64 C oP LOB. 61 LOT 55 LOT 51 sat 5- {` Z " y - 2 5 y Q �' IvtASSACHUSETTS Z, 1a, ?wtb-7 LOT 52 y- S LOT 50 LSAT 4 Ji 'L N `L1; Z.'f be�� -3A�.S LOT 63 LO ,62 GRAPHIC SCALE cv Z 2 cv HENRY L Fi�1AS J. FLATLEY-- �� ,GO m wo Soo�oo L.C. x 14" N T�.S.S�/182 ' ALAN F. v JONES z Y L.C. 30063 1 inch a 200 tt i~i oAUL +� LEVY, ELDREDGE ANiAGNER ASSOCIATES , INC . � art~ -4t --�-� '.��\�n�o C 1� 'y .,o►i } v> ENGINEERS —• LANDSCAPE ARC�'-1rE(7S P LAN NERS — LAND SURVEYORS :„ 889 WEST MALN TI .RE G I E$ T�Y LT S E RVII� MAS.z HUS "S 02632 ;