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TOWNSEND — A dirt
pile that is James and
Alice Kennedy’s
back yard will have to
stay that way after the
Zoning Board of Appeals
(ZBA) denied that family
permission to move it.

The Kennedys have been
asking for the variance
to remove the pile, which
has consumed their entire
back yard for the last
five years. The problem
the Kennedys face is a
zoning bylaw that says
a person cannot remove
earth within 100 feet
of another person’s
property line. The Kennedys’
backyard is 100 feet wide,
making it impossible for
them to remove the huge
sand mound due to surrounding
houses.

The vote was Darlene Sodano
and David Funaiole in
favor of giving the variance,
and William Cadogan and
David Chenelle against.
Member Joe Guinta abstained
from the vote. In the
case of a tie vote, the
permit is not granted.

Chenelle said the legal
opinion they received
from town counsel “did
not satisfy the requirements
to allow the variance.”

Katharine Goree Doyle,
attorney for the firm
of Kopelman and Page,
wrote a legal opinion
that states, “A
large sand and gravel
bank sits directly behind
the (Kennedys’)
house. The property owners
wish to remove standing
timber, stumps, and ten-
to twenty-thousand cubic
yards of sand and gravel.
The sand and gravel would
be removed to reduce the
bank to a grade consistent
with the remainder of
the property next door,
with the intent of providing
a level yard area behind
the single-family dwelling
and eliminating the safety
hazard posed by a steep
and unstable slope.

“The Board of Appeals
would be within its discretion
to grant the variance
from the town’s
earth removal bylaw with
regard to the removal
of earth materials within
one hundred feet of a
property line,”
the opinion stated. “I
understand that safety
concerns are the prime
purpose for removing the
earth in question, as
an unstable sand and gravel
bank was left by the original
subdivision developer.
Safety can serve as a
basis to grant a variance.”

Land use coordinator Kathleen
Araujo said it was well
within the ZBA’s
jurisdiction to grant
the variance to the Kennedys.

“We had two members
that felt the legal opinion
was good enough and two
that didn’t. If
the variance was granted,
anyone that had issues
with it would have 20
days to appeal, and the
Kennedys also have the
same 20-day timeframe
to appeal,” she
said.

Alice Kennedy said the
family can appeal the
vote, or they can opt
to request a change to
the bylaw as it is currently
written.

“Right now, we don’t
know what we are going
to do,” she said.

The Kennedys were hoping
the legal opinion would
be sufficient to allow
the variance.

“It just wasn’t
good enough,” Alice
said.

Alice and James both feel
the current bylaw is written
for contractors and not
homeowners.

“It doesn’t
make sense. We’ve
been fighting this for
years. We just want to
be able to use our backyard,”
Alice said

Her main concern is the
safety issue.

“What they are telling
me is that to follow the
letter of the current
law, they are leaving
a safety issue here. It
is a dangerous situation,”
she said. “The sand
pile comes up to the bottom
steps of our deck.”