Clarksburg Selectmen Revisit Special Gravel Removal Permit
.JPG) Attorney Stan Parese said the failure to include the two-year limit on his client's gravel removal permit meant the permit was still viable. Selectmen said they'd get their own legal opinion. |
CLARKSBURG, Mass. — The Selectmen will seek town counsel's advice over an expired special gravel removal permit.
Michael Milazzo and his attorney, Stanley Parese of Parese Sabin Smith & Gold LLP,, met with the board Monday night and claimed that the expiration of Millazzo’s gravel removal special permit is void.
Parese said the permit failed to mention a two-year expiration date and no one challenged the mistake in the allotted 20-day appeal period. Because Milazzo continued to work and use resources on his gravel business under the belief he was covered under the permit, the permit cannot be revoked, he said.
"After the 20-day appeal period it's forever hold your peace, because routinely people are off spending hundreds of thousands … based on the fact they have been given permission to move forward," Parese said. "This is statewide statutory law."
The board decided the issue should go to town counsel first, but felt the permit did not have to state an expiration date because both the town's zoning bylaws and Massachusetts General Law state that there is a two-year expiration date on all special permits.
Selectman William Schrade Jr. said, in his opinion, the laws written are very clear and stating that on the permit would just be redundant. He said Parese's argument implies that whenever the town wrote a special permit, it would have to spell out every law already written.
"It's spells it out pretty clear, and it was adopted by the attorney general," Schrade said. "It is pretty clear, and there is no gray area ... I'm not an attorney, but it is not too often I see 2 plus 2 equals 4."
Resident Paula Wells attended the meeting and referenced a 2006 news article from the North Adams Transcript that she said claimed the permit had a two-year expiration date in order to protect the residential area from becoming an industrial area.
"People have built houses up there and we would have never had done that if it had been adjacent to an industrial area," Wells said. "It is unfair to the neighbors to change the character of the neighborhood after all these years."
Wells said the operation is too loud and causes disturbances in the neighborhood.
"We hear the screener it is a noisy nasty thing; we don't like it and we can't live that way," she said. "Gravel banks belong in an industrial zones not on the side of a beautiful mountain where it can project noise outward to everybody."
Milazzo responded and said he prefers not to argue at the meeting and just wishes the select board listen to facts.
"I think there is a lot of half-truths being spread around this town about me, and I would like for the board to at least listen to the facts not just what feelings are," Milazzo said.
Milazzo acquired a one-year permit in 2008 after filing suit over the lengthy conditions attached to the 2006 permit. It's not clear if he had refiled for permits since but residents who searched the 2012 Selectmen's minutes said they could not find a recent one.
The issue had attracted neighbors' attention because of Milazzo's recent request to amend the permit to allow a rock crusher and extend the hours. The gravel bed at the top of Wheeler Avenue has been in existence for decades although not consistently operated.
None of the selectmen on the board were present during the original permit request. They said they had received calls from people who claim there is rock crusher illegally operating on the premise but they know that not to be true. The board toured the site in September.
Schrade said his opinion will rest on what town counsel says and he just wants to do what is right and legal.
"I am looking just at what is right is right and what is wrong is wrong," he said. "If our lawyer comes back and says Mr. Milazzo is right in his thinking, then we have to relook every time we have to do a special permit."
Parese said the best way to handle the issue is in incremental steps.
"I am not here on a posture of 'bang on your table'; I am saying let's have this conversation and we will come back," Parese said. "I don't want to go ready firing into this, and we are going into the winter so there isn't great urgency."
Although Parese said the issue may not go to court, Schrade said he believes ultimately it will.
"I want to make sure it is done right so we can make sure we have done everything by the letter of the law," he said. "Then we will let the court system play itself out because no matter who wins or loses, this is ending up in court."
The Selectmen voted to request an opinion from town counsel and meet again with Milazzo in December.
Tags: gravel bed, special permit,
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