Adams ZBA Approves Duke's Gravel Pit Appeal
ADAMS, Mass. — The Zoning Board of Appeals last week granted John Duquette, owner of Duke's Sand & Gravel, an administrative appeal of the building inspector's citations against his operations.
During a near three hour and at times combative meeting on Tuesday, the ZBA voted 3-1 to grant Duquette his appeal that will lift the cease-and-desist order in a portion of his pit and not mandate any remediation.
"So it's close but not close enough, and I feel for the people in that area but the law is a funny business it knows no friends," board member Peter Gutmann said. "From what I hear her.e there are a lot of unanswered questions and people are coming up short."
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.
Residents have been combating Duquette's operation for some time now and have complained of dust covering their homes and property.
Duquette filed the appeal May 4 and claimed that he wasn't removing any material from the buffer zone, just trees.
"It's an incorrect statement of law that cutting trees is an infringement of the buffer zone," Duquette's legal counsel, attorney Jeffrey T. Scrimo of Lynch Scrimo Attorneys of Lenox, said. "The buffer zone bylaw is very clear. It says removal of soil it and does not say trees or vegetation."
Building Inspector Don Torrico agreed that the town's bylaws to not define the buffer zone but not with Scrimo's interpretation.
"I think that they have encroached the buffer zone ... I read that a buffer zone is a protective zone that includes vegetation so that it protects residential areas from noise and air pollution. When you remove the trees you no longer have that filter."
He added that he, too, believed Duquette was operating in the buffer zone and pointed to two different aerial photos from 2012 and 2014 that he felt showed more mining along the edges.
Acting Chairman Brian Tenczar disagreed with Torrico's interpretation and felt the bylaw only protected the buffer zone so if the pit ever ceases operation the slopes can be made safe.
"In my opinion, the buffer zone is for the future if the pit ever closes and needs to be made safe for the public," he said. "The 100 feet would allow you to build out a slope that is safe ... it certainly says soil because if you were to slope it in the future you would have to remove trees."
Duquette said he took some trees down for a possible horse field and has not removed soil from the buffer zone. He said other trees were removed for his employees' safety as mandated by U.S. Mine Safety and Health Administration's regulations.
He said MSHA also recently inspected the pit and found no issues.
Gutmann said if Duquette went through the proper channels when he purchased the property this issue would have never come before the board.
Duquette, however, said he went through the process before even purchasing the pit with a former building inspector.
"We walked around the entire pit with the building inspector for months before purchasing the property and he took pictures and everything," he said. "He [Torrico] keeps on coming at me with every single angle to shut me down and I don't know what is going on but we went through every channel possible."
Duquette had a letter from the previous owner and building inspector affirming this.
Torrico said this wasn't enough.
"Know that a building official's statements are not binding that's why this board is here," he said. "So that inspector may have made that determination but there is always the right to appeal. Just because he has that letter doesn't mean anything. He could have made a mistake and I don't think legal counsel would have supported his decision."
Torrico also questioned Duquette's permit and noted that according to the town's bylaw the gravel pit needs to re-up its permit every year.
Duquette said this does not apply to him because his pit is grandfathered. Only if he expands his business or if there has been a lapse in operation of 24 months does he lose the grandfather clause. He said the former building inspector confirmed this.
Torrico said Duquette needs to prove this and said the sales slips he does have show a lapse of four and six years.
Gutmann noted that if Duquette needed a special permit, many of the residents' concerns could be managed and the town would have some say in how the pit operates.
Torrico was also not satisfied with the survey of the pit Duquette needed to supply for the appeal.
The map in the board's packet was partial and did not have an official wet stamp from a licensed surveyor that would make it a legal document.
Scrimo said the original map would not fit in the board's packet and that the board was given the original stamped document.
However, it was not in the board's hands.
Board member Francie Anne Riley said she picked up affiliated documents from Chairman Peter West's office –- West did not attend the meeting. She said West may have the official map or did not include it with the paper work.
The board initially motioned to table the decision because the stamped blue print of the survey was missing.
"We are missing a critical piece of evidence," Gutmann said. "This is a beehive and when you get into it, they all come out there is so much confusion with this property."
Scrimo said he can easily get a stamped copy if the board misplaced the document and said it was absurd to insinuate that he drew up the survey on his own.
The motion was withdrawn because by delaying the decision until its next meeting, the board would surpass the 100-day window in which it needed to make a decision on the appeal.
Unless Duquette agreed to extend the timeframe, he would automatically be granted his appeal.
Duquette did not agree to an extension and wanted a ruling Tuesday night.
Before voting, the board opened up the floor to park residents who attended the meeting.
"This is the truth what we are saying, and why would we lie about it?" Pinnacle Park resident Linda Kupiec said. "We have never been bothered by this before and it is just awful. The dust looks like a smoke from a fire when it rolls through the park."
"I have lived up there the longest out of everyone here," resident Conrad Sidway. "We never had any problems before Mr. Duquette took over."
Duquette did pledge to plant trees and vegetation along the buffer area near Pinnacle Park to try to remediate the sand issue, but without the standing citation, the town cannot force him to do anything.
The board urged Duquette to be a good neighbor and make the plantings.
"I support his appeal but I think there are a lot of people who will be keeping an eye on things," Riley said. "I know you will do some plantings up there to hold the dust down ... that is why I am saying yes."
The only member to vote against the appeal was Anthony Donovan and Gutmann noted that the appeal does not nullify possible future violations.
"The battle might be won and I hate to say this but the war still goes on," he said. "I hope you are not back here ... you are a local business man and there is nothing better than to get neighbors on your side."
Duquette has a 14-day decision notice to file with the town clerk and a 21-day appeal period once it has been filed. The board's decision can be appealed and the case can be taken to land court.
Tags: ZBA, appeals, gravel bed,
