Dalton ZBA Finds Berkshire Concrete In Bylaw Violation
DALTON, Mass. — The Zoning Board of Appeals on Tuesday determined that Berkshire Concrete unauthorized dig site on parcel No. 105-16 needs to be fully remediated or covered to abide by town bylaws.
The board did not agree with the Select Board recommendation to address the issue under the performance standard; however, members do believe that Berkshire Concrete violated zoning bylaw 350-61 Section E. Restoration.
The decision passed with the three present board members; Edward Gero recused himself because he currently serves on the Board of Health, which is considered a conflict of interest.
Officials from the Select Board and Planning Board agreed that parcel No. 105-16 should be fully mitigated to adhere to town bylaws, specifically section 350-90, the performance standard.
A letter by town counsel cites the section of the zoning bylaw, which prohibits non-residential uses that create harmful conditions, including dust and noise.
Brian Duval, the zoning enforcement officer, disagreed with this course of action and decided not to take any action; a decision that the Select Board appealed to the Zoning Board.
He said just having dirt open on a parcel isn't a zoning violation and that the dust leaving the site is a public nuisance violation, which falls under the governance of the Board of Health.
The earth removal bylaw, which spells out restoration requirements, only applies if there is a valid earth removal permit. Since parcel 105-16 does not have such a permit, Duval does not believe this section can be enforced.
The enforcement action must be clearly supported by the specific bylaw section, he said.
The board was neither correct nor incorrect in citing the performance standard as the reason to remediate the site because no land shall be used to create any dangerous or objectionable condition, Zoning Board Chair Anthony Doyle said.
However, Duval is also correct in the conclusion that this is not the right citation for the violation because the land is not being actively used, therefore can not be used, he said.
During the meeting, Duval argued that the performance standards section is not intended for addressing dust from a vacant lot with no ongoing activity. Rather, its intent is to regulate activities on a parcel.
"I have to be comfortable with enforcing violence. I have a sworn duty to enforce them to the best of my ability," he said.
Although it is not in violation under the performance standard, Berkshire Concrete, a subsidiary of Petricca Industries, is in violation of zoning bylaw 350-61 Section E. Restoration, board members said.
"They did it without a permit at all, then because of that, it was prohibited and basically what you want to do is have it back to where it was before you started doing work on it, because you're not allowed to do that," Zoning Board Vice Chair Caleb Darby said.
"I know they brought up a lot about the special conditions and stuff, but they don't have any special conditions because they didn't have a permit. So, that's really kind of null. We don't need to worry about that. But this, they did break the bylaw by doing this work without a permit."
Although Berkshire Concrete did not get a permit for the parcel, there is no denying that earth removal was done and ceased so should be fully remediated to adhere to bylaw 350-61 Section E. Restoration, Doyle said.
The bylaw states that if a permit expires, operations cease, or removal is complete, the area must be restored as follows: Land grading should not exceed a one-foot rise for every three feet horizontally and boulders larger than 1/2 cubic yard must be removed or buried.
Additionally, the area must have four inches of loam, and be planted with grass or ground cover to prevent erosion. The performance bond is released only after verifying successful vegetation and drainage.
Once Berkshire Concrete received the cease-and-desist, it voluntarily stopped operations, therefore the dig site should have been covered, board members said.
The bylaws are worded in a way that makes it difficult to enforce consequences for violations because there are no clear penalties for actions taken without permission, Town Planner Janko Tomasic said.
The long process it has taken to get to this point is an example of this and updating the bylaw is something the Planning Board could address to prevent issues such as this in the future, he said.
For over 10 months, residents have attended numerous meetings urging action to address the dust and particulates coating bordering neighborhoods allegedly from Berkshire Concrete's unauthorized dig site, No. 105-16.
As time has gone by, residential concerns and frustrations have grown, especially with looming plans by Berkshire Concrete Corporation to expand its gravel mining operations.
During the Zoning Board meeting, Select Board Chair Robert Bishop emphasized what has been previously expressed — that the board wants the unauthorized dig site fully remediated and that he believes there are no valid excuses for not requiring this action.
Part of being a town employee and official is making sometimes uncomfortable decisions you're not comfortable with, that is part of the job, Bishop said.
"[Berkshire Concrete has] gotten away with that. Yes, there's no permit, that's why you should have an enforcement order. It's the same thing we do in conservation — you don't have a permit, you get an enforcement order," he said.
"And that's what we want to do. We want that covered up, and there's no excuses for it."
Residents restated what they had emphasized during previous meetings — neighboring residents were not informed of the mining operations because no permit was issued for the parcel.
The town did receive Berkshire Concrete's dust mitigation plan but that would be under the umbrella of the special permit to do the work, but it didn't have a special permit so it is not protected under a permit, Darby said.
"They should absolutely have to remediate the land, since they did it without a permit," he said.
Typically, the zoning enforcement officer gives 30 days for a plan to be put in place to address a bylaw violation, Doyle said.
This decision and the special permit hearing is "kind of colliding." The board wants the company to take care of the property, covering up the unremediated site, he said.
"If we were meeting three months ago, it would be considerably different but now that we're meeting five weeks [to] six weeks away from their special permit hearing. I doubt it's going to be remediated by then," Doyle said.
It is unclear whether Berkshire Concrete will get a permit to mine on that site, however for the time being, the board wants it covered, he said.
Tags: ZBA, code enforcement, dust, debris, remediation,
