PEPPERELL — The Zoning Board of Appeals has denied an appeal to overturn a June 19 cease-and-desist order placed against Nashoba Valley Garden Center by the building inspector. The cease-and-desist order was imposed because the business was allegedly operating a commercial trucking operation — a non-conforming — at the 49 South Street property.
The ZBA on Nov. 14 also continued the public hearing — for the second time since Aug. 21 — on a special permit request to allow conversion of Louise Taylor’s existing non-conforming use at the 49 South Road property to that of commercial transportation and storage, in hopes an agreement can be worked out with irate neighbors on three sides of her property.
The basis of the decision — made after a legal explanation by town counsel Edward Richardson — was that Taylor’s trucking operation essentially shuts down between November and March. Although the denial of the cease-and-desist appeal is itself subject to appeal, Taylor has the right to apply for a landscape business permit that would allow the use and storage of heavy trucks.
The basis of the antipathy from neighbors is Taylor’s storage of four 77,000-pound gross vehicle weight (GVW) tri-axle trucks, one 99,000 GVW tractor/trailer, a one-ton dump, a one-ton utility truck, a one-ton box van, a three-quarter-ton pickup, a tractor/backhoe and fuel and oil, on unpaved land where petroleum product leaks might affect well water quality.
Taylor’s attorney, Mark Joubert, referring to an unannounced inspection by Board of Health member Peter Cronin that found no health violations, and a Conservation Commission letter stating there are no wetlands on the parcel, immediately asked for a continuance to give his clients time to consider 13 conditions offered by the neighbors’ attorney, Mark Fenton.
Joubert said the Taylors have tested their own well water and it came in below levels of concern for petrochemicals.
Fenton, maintaining Cronin’s inspection was too late in the year to have seen the trucks, said zoning bylaws changed in 1973 when the Taylors were operating a tack shop — which is also a non-conforming use of residential land. The landscape business was an expanded non-conforming use and now the trucking is an additional non-forming use.
He said the concessions he presented are consistent with zoning bylaws, are fair, and would ensure trucks are not parked on gravel or sandy soil. They include a demand for oil and gas separators, paved parking areas, and storm water control.
Richardson explained the zoning bylaw authorizes the issuance of a permit for a landscaping business and associated storage of supplies with conditions.
Residents’ emotions were on edge several times during the meeting, to the point that Fenton asked that comments — most of which were opposed to a continuance — be addressed through himself because “yelling will create a hostility with the board.”
ZBA member Sherrill Rosoff said it seems “perfectly reasonable” to ask for more time to discuss the latest conditions (which had been received by Joubert the previous day), and also to deny the appeal of the cease-and-desist order because of the proximity of the winter shut-down.
“So I have to lose college money for my kids if I get a job in January?” Bruce Taylor asked.
When Fenton asked for operations to cease and showed the board pictures of trucks on the site on Nov. 12, Rosoff asked if he was saying that the cease-and-desist order was not being observed.
“Absolutely,” Fenton replied. “My letter (to the board) of Oct. 25 to that effect gives me a 14-day (waiting period) before I can come back to the board and ask it to enforce (the order).”
Richardson said it is permissible for the ZBA to rule on the appeal and special permit request as a unit, or it could deny the appeal and decide on the permit later. He noted that at some point the record must be completed regarding the application for a landscaping/contractor’s yard permit.
Maria Lombardo of Robin Lane asked if the cease-and-desist order would be enforced if it is upheld.
Richardson replied that enforcement is the purview of the building inspector. For example, he could impose a $300 ticket, then attorney Joubert could go to the clerk magistrate with the local bylaw issue, which in Richardson’s experience is almost always bounced back to the town.
The public hearing was continued to Dec. 12 at 7 p.m.