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Hanks says builder knew dirt pile could not be moved


TOWNSEND The dirt pile that serves as the backyard of a house on 78 Mason Rd. does not technically violate any of the town s bylaws, according to Building Commissioner Richard Hanks.
When developer Cyril Lunn wanted to build the house in 1997, said Hanks, he knew he would not be able to remove the dirt pile from the lot.

“Mr. Lunn had been in violation of the building code with all of the other houses he built in that area,” Hanks said. “When he got to the last house, which is the 78 Mason Rd. house, that is when I came on as building commissioner. He came in for the foundation-only permit. I explained the bylaw and he signed the permit knowing he could not move the dirt pile.”

Hanks said Lunn then came in for the building permit for the house.

“The thing with this is that if Mr. Lunn had placed the house differently on the lot, the dirt pile would not be the entire backyard,” he said.

When a developer builds a house, Hanks said, they can place the structure anywhere on the lot, provided it meets all codes. The most important of those codes is that the building sits back at least 50 feet from the road.

“Mr. Lunn set the house back 110 feet from the road. Therefore, it is right in front of the dirt pile. If he had placed the house better, this would not be an issue,” said Hanks.

After the house was constructed, Hanks office received a letter from Lunn s attorney stating Lunn would be moving the dirt pile.

“I responded that he could not move the dirt pile as it was against the earth removal bylaw. Mr. Lunn never filed an appeal to my letter, so it was a dead issue,” Hanks said.

Lunn then sold the house to someone who, in turn, sold it to the Kennedy family, which currently lives there, he said.
“I guess Mr. Lunn said the earth pile would be moved, when it really couldn t be,” said Hanks.

The Kennedys have recently gone to the Zoning Board of Appeals for a variance to move the dirt pile, but they were denied. Alice Kennedy said the pile is a safety hazard for her children.

Hanks said the town gave the occupancy permit to Lunn to sell the house because the house is not in violations.
“There is nothing wrong with the house itself, so we could not deny the occupancy permit. The house is not in any code violations. The builder constructed the house all within the codes for the town,” he said.

“Personally, I don t see any safety issues,” said Hanks. “You can say crossing the street is a safety issue. Mrs. Kennedy feels having the sand pile is a safety issue for her children. All kids slide down sand hills, but she has a right to her feelings.”

Hanks said he had hoped the Zoning Board of Appeals (ZBA) would give the variance to the Kennedys.
However, ZBA administrative assistant Karen Chapman said two members, David Chenelle and William Cadogan, voted against the variance for the Kennedys because they felt the necessary criteria were not met.

“It is unusual for this board to grant variances anyway,” Chapman said.

The four points to grant a variance, Chapman said, are circumstances related to the topography of the land in question, financial or any other type of hardship, that it would not be detrimental to the public good or that there is no substantial derogation to the bylaw.

“The derogation to the bylaw means the request does not stray too far from the actual bylaw,” she said.
The no vote by Chenelle and Cadogan fell under the hardship verbiage, said Chapman.
“They both said it was a self-imposed hardship brought on by the previous owner. That is why they both voted that way,” she said.

Cadogan and Chenelle could not be reached by press time. Both have unlisted telephone numbers.
Hanks said there are other options.

“They can appeal it to Land Court, or wait the two years to bring it back to the ZBA,” he said. “I have no jurisdiction over this issue. The Kennedys have gone about trying to move the dirt pile (in) the correct way. It is a headache for everyone involved.”

When they purchased the house, the Kennedys say they were told the sand pile could be moved. Now, Alice Kennedy says the family is unsure about its future course.

“We have spoken to a lawyer, and it seems it will take several years to get into Land Court,” she said. “We cannot appeal it to the ZBA for two years, so going to court would more than likely be longer than that. We may try to amend the bylaw about moving earth. We are pretty much stuck between a rock and a hard place right now.”
Cyril Lunn could not be reached for comment on this story.