ADAMS, Mass. — The owner of Duke's Sand & Gravel is asking for an administrative appeal of town citations against the gravel operation.
John Duquette appeared before the Zoning Board of Appeals on Tuesday with his legal counsel, attorney Jeffrey T. Scrimo of Lynch Scrimo Attorneys of Lenox.
The gravel operation at 101 Grove St. has been cited for clearing trees within a 100-foot buffer that has caused particulates to litter surrounding homes and Pinnacle Park in violation of zoning laws. Duquette issued a ceased and desist order in late March.
"We don't believe there have been any violations but we do want to be good neighbors and he certainly hear the concerns," Scrimo told the board.
Residents have been fighting Duquette's operation for some time now and have complained of dust covering their cars and homes, health concerns from breathing in the particulates, and explosions from the gravel pit.
"The violation notice was issued because no less than 15 separate complaints came in overall and over time we heard from different individuals and the complaints were centered around the airborne particulates," Building Inspector Don Torrico said.
Torrico added that Duquette's continued excavation has led to slopes within his property that do not meet the town regulations.
He provided aerial photos of the property before and after Duquette owned the pit and maps outlining his property and the buffer zone from Berkshire Regional Planning Commission map experts.
Scrimo responded with aerial photos going back to 1997 and a survey of the property Duquette had done.
The attorney said Duquette has the right to remove trees in the buffer zone because the regulation states that only soil cannot be removed. He added that the state Department of Environmental Protection made three separate visits during which they talked to residents and surveyed the conditions but found no proof of airborne particulates.
"They didn't find anything and they just didn't walk around checking boxes," Scrimo said.
He said they did make recommendations to improve possible airborne dust and Duquette has agreed to make those improvements by planting new vegetation.
As for the slope violation, Scrimo claimed that the area had been historically excavated before Duquette purchased the property.
He added that when Duquette purchased the property in 2011, part of the sale agreement was that the pit was listed as a pre-existing nonconforming pit. He cited both letters from the town and the real estate agent stating this.
"One of the necessities for the seller and the buyer was that if this was a pre-existing noncompliant pit and, essentially, after consultation, we believe the town determined that it was," he said. "In other words, he can continue to work that pit."
Torrico disagreed with Scrimo's interpretation of the town bylaw that said only soil cannot be removed in the buffer zone.
"I don't agree with that, a buffer would be trees and vegetation," he said. "I'll have to check definitions but from my memory buffer strips are a protected area, which includes vegetation."
He did, however, confirm that the DEP representatives could not find any particulates but said that was only because they did not witness them that day because of rain or other weather conditions.
He said they acknowledged that they had no way to measure the dust and put the issue in the town's hands.
"DEP did not witness it so they asked us to go to the site and several times we witnessed it ... the DEP asked us to take control," Torrico said. "We have two town employees that witnessed it on two separate occasions."
Torrico also thinks Duquette expanded operations and is no longer protected by any pre-existing conditions. The burden of proof should be on Duquette, he said, to show the pit has been in constant use and not expanded.
Town Counsel Edmund St. John III said Duquette needs more proof than letters from the prior owner and other involved parties.
He also believes Duquette has expanded his operation from the previous owner and now reclaims black top, which St. John said he would consider an expansion of the operation.
Torrico added that if the ZBA finds against the citations, the town has no power over Duquette
"How are you ever going to hold his feet to the fire when he is done taking materials out of there and starts encroaching on other parts of the buffer?" he asked. "He can just walk away."
Resident Jeffrey Lefebvre said the sloped area of concern does not predate zoning and used to be a pasture.
Quality Street resident Tom Dubis said Duquette is well within the 100-foot buffer and keeps getting closer.
"He is within the 100-foot buffer of my property and my next-door neighbor," he said. "He is going to walk away from this if there is nothing holding him to this. He does not care."
Park resident Linda Kupiec said she saw him take the trees down and just wants the issue to be remedied.
"We are not here to put you out of business but we do have the sand issue ... there is dust coming through and trees were taken down I watched them from my living room," she said. "We are not lying. Why would we do that? It is a fact that it is happening and we hope it can be taken care of."
Duquette said he has taken down trees but only to meet the U.S. Mine Safety and Health Administration's regulations to avoid fines. He said he was hit with a $17,000 fine for some of the trees when he first bought the property.
Torrico said MSHA regulations are not the same as the towns and he must check with the town and Conservation Commission before cutting anything down in the buffer zone.
The board will vote on the issue Aug. 8.
The board also saw Duquette's request to appeal his second violation at Stanley's Lumber, a business he also owns.
The business is along the flood plain and Duquette has been cited for violating flood plain regulations.
The board agreed to look at the issue Sept. 5 because Scrimo said Duquette is working on a corrective plan with the Conservation Commission and needs implementation time.