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TOWNSEND — A Mason Road family was disappointed to hear the discussion of a special permit they requested from the Zoning Board of Appeals (ZBA) to remove a massive sand hill in their yard was continued to Dec. 14.

James and Alice Kennedy have been fighting the battle for four years, and according to Alice, “All we want is to be able to use our back yard.”

ZBA members are looking for an opinion from town counsel that could help them rule in the Kennedys’ favor.

ZBA Chairman William Cadogan said, “The problem is, basically, there is a no removal within 100 feet bylaw on the books. The bylaws are written for the benefit of the town, and we have to mind our P’s and Q’s on this.”

ZBA member David Chenelle said, “What you can do is re-write the bylaw. This is the perfect example of a bylaw not being written properly. It can be done.”

Cadogan offered to have the town take temporary possession of the land so the sand pile could be at least partially removed.

Chenelle said changing the bylaw would be a quicker process.

“Even if the town takes temporary possession, they still have to come before us for a special permit, so it’s the same issue. Just because it’s the town, they won’t get special favors,” he said.

The Kennedys expressed their frustration with the entire process.

“Clearly, the bylaws were written for commercial use and we don’t fit that mold. We have to have some common sense here. Why can’t you look at this circumstance and make a decision?” Alice asked.

ZBA member Darlene Sodano said, “Anything in the bylaws that is not specifically stated is prohibited.”

ZBA member David Funaiole said, “(I’m) torn between my heart and my head. If we say let’s fix it for these people, and one person does not like the decision, they can file an appeal and we’d all end up in court. We need to find a legal way for these people to fix this.”

Chenelle said the courts are the ones that make rulings on zoning issues, and the town is bound by them.

“The other thing you can do is get the Board of Heath involved here. This is a safety issue, and they have a much broader range than we do. The Board of Health has a lot of power,” Cadogan said.

James said moving the sand pile “is a way to improve the property. We just want to use our back yard and there would be no negatives to moving the pile. We would be creating more habitat, which is a conservation issue. It would be all plusses (and) no negatives.”

Chenelle recommended waiting for a legal opinion before taking a vote.

“If we vote to deny you the permit, you cannot come back for two years. We need a good legal opinion first,” he said.

The ZBA decided to re-schedule the hearing for Dec. 14 at 8:30 p.m.

The Kennedys have lived in the house four years. The sand pile was there when they purchased the house.

They filed an earth removal permit with the town in December of 2002. The contractor, Cyril Lunn built the Kennedys’ home and originally applied for an earth removal permit in 1998. His request was denied due to a zoning bylaw which states it is unlawful to remove earth within 100 feet of someone else’s property.

“All we want is to be able to use our backyard,” Alice said. “They should be able to give us a variance in this circumstance, the laws are more for contractors than residents.”