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HomeMy WebLinkAbout1975-11-25November 25, 1975 - Tuesday SPECIAL NE~ING The BOARD OF APPEALS held a Special Meeting on Tuesday evening, November 25, 1975 at 7:30 P.M. in the Town Office Meeting Room. The following members were present and voting: Frank Serio, Jr., Chairman; Alfred E. Prizelle, Vice-Chairman; William N. Salemme, Clerk; Louis DiPruscio, and James D. Noble, Jr. The letter from the Planning Board, dated Nov. 18, 1975, which requested reconsidera- tion of the decision on Hereford Corp. Earth Remco, al Permit was read by the Chairman. Member Frizelle made a motion to deny reconsideration and Mr. DiFruscio seconded. Mr. Frizelle gave his reason as the fact that the matter was brought to a public hearing and thoroughly discussed at that time. William Chepulis, Chairman of the Planning Board, asked if it would be possible to speak from the floor while the BOARD was having a discussion. Mr. Salemme stated that he would like to see the matter re- viewed. Mr. ~rizelle suggested that the proper remedy would be court action and that is the route they (the Planning Board) should take. Mr. Serio suggested letting the Chairman of the Planning Board speak. Mr. ~rizelle objected and said that the BOARD should vote on the motion that had been made. Mr. Noble~said that an the night of the hearing the BOARD went through this quite a bit as to whether Sec. 5, as it presently stands, applies or does not apply and it was the opinion of this BOARD at that particular time that it didn't apply. We dis- cussed various phrases such as in the decision of 1964, paragraph 8 - "the permit ~rill be automatically renewed" and the decision of 1974 - "operations shall be completed within 3 years, if possible..." and based on those the BOARD agreed that Sec. 5 would not be applicable. Unless someone has some substantial information on a point of law on which we committed a legal error, I don't see where we would have any grounds to go back now and just arbitrarily change our minds, he said. Mr. Serio stated that he would like to use the power of the ChAir in this particular case and allow the Chairman of the Planning Board to speak. Mr. Chepulis then suggested setting aside,momentaril~ the motion and discuss the matter Board to Board. Mr. Frizelle again stated that he wanted to move the question. Mr. Chepulis stated that they were not against the conditions as set down in the decision; our thrust is that the decision has stated that the existing Sec. 5 of the Zoning By-Law does not apply. Mr. Salemme commented that he could have been misunderstood by Mr. Frizelle earlier when he said that the BOARD should open the discussion. I thought, said Salemme, ths-t perhaps if the Boards spoke about it, it would be a relationship between the Boards. Mr. Frizelle said that the only part that troubled him was that the Planning Board had adequate notice that we were going to discuss that issue and if they chose not to attend that is their business and it is totally out of order to come here to a Special Meeting. Mr. Salemme stated that he for one should see that the By-Law is enforced and, as a matter of record, he felt that he made the right decision at that time. Ne also felt that there should be communication between the Boards. Mr. Frizelle said he didn't think that the BOARD should have to spend any time at a special meeting. We have a regular meeting coming up, he said, and if they want they can put it on that agenda. He repea~ed, we should not have to come to a special meeting. Mr. Chepulis commented that the Planning Board would not have been able to present a~u argument at the public hearing because when the BOARD OF APPEALS w~s forming its opinion the hearing would have been closed. Mr. Frizelle's comment ~s that he thought it had been discussed enough and it was open to rebuttal at that time. Nov. 25, 1975 - cont. We did go over this very closely, said Mr. Serio, and it is mn unu~l circumstance. He still felt that the BOARD was correct b~sed on its discussions and previous facts in the files. He then asked Mr. Chep~lis what he felt the problem was. Mr. Chepulis felt that the reference to exclude Sec. 5 should be eliminated. It was so voted at Town Neeting, he stated, ' that this would apply and your BOARD has discretionary powers. Mr. Ostherr, another Planning Board member, stated that he was personally afraid of set- ting a precedent. Mr. Frizelle requested that the Chairm~n move the question. Nr. Serio stated that he agreed, technically, but that he did not think this should go to the courts. Mr. Chepulis asked Mr. Frizelle the following question - in relation to anything in Town, what is non-conforming? Mr. Frizelle stated that he was not prepared to answer and was being very unreasonable although he usually is not so. Mr. Serio then called for any further discussion from the members of the BOARD of APPEALS. Certainly we don't want this to continue amy more than the Planning Board does, but it is a bad problem that has been a~lowed to erode over the years. We are not trying to defy the By-Law at all, it is just an unusual sita~tion and we all b~.ve the same goals, primarily, to do what is best for the Town. Mr. Noble spoke saying that he had written the Decision. Mr. Ostherr asked if the BOARD considered an earth removal permit a 1-year permit or a permit that runs in perpetuity. Mr. Noble answered that one would probably, get as many answers on that question as there are judges in the state. He then commented that someone who has been operating for so many years on a set of guidelines with things being what they are today could say the beck with it and walk off. Mr. Ohepulis stated that some of the conditions are more strict than what is called for in the new By-Law~ but there ~hould not be such a statement excluding the By-L~w to establish ~uch a precedent. My own opinion, he s~id, is that an earth removal operation is no~ a non-conforming use. If it is allowed in any zoning district it is not non-conforming. Mr. Serio s~id that we did not intend to establish a precedent here and certainly agree that it should be strictly controlled. Benjamin Osgood, Old Village Lane, a member of the Committee that wrote the new By-Law stated his feelings that the precedent factor is the most importanT, not so much with this pit but the one on Mill Rd. that does not have a permit. By eliminating Sec. 5 of the Zoning By-~aw .you are leaving the Town wide open for the operator to say, not only do I not have a permit but I don't have to conform to the By-Law either. The BOARD is setting a very bad precedent by not going along with the townspeople and applying this By-Law. He felt that the BOARD would be hard pressed when and if he comes in or someone else interested in the hill out there. He repeated that if you ~tart exempting Section 5 from the existing permits you are setting a precedent. Mr. Osgood also mentioned that while on the Committee they read many cases which stated that towns could regulate all pits and requested going on record as ~inst the town setting a precedent by going away from the established by-law; it demands very serious consideration not only for Hereford but others, and especially the one without a permit. The vote on the motion was taken with 4 members in favor and Mr. Salemme opposed. Letter from Town Counsel Re George Parkas' application was read by the Chairman. The letter is on file. Invitation to attend the Grand Re-opening of the V.P.W. Post 2104 was read and filed. N/~ification of a Bloodmobile Dec. 6, 1975 at the Niddle School was received. The meeting ~djourned at 8:10 P.M. _ Secretary