Great Barrington — In its battle to rein in the heavy trucking operations at one of Gary J. O’Brien’s sites, the town has suffered a setback. A judge in state Land Court last week issued a preliminary injunction forbidding the town from enforcing a cease-and-desist order issued by town zoning enforcement officer Edwin May.
Click here to read the 10-page decision dated Sept. 27 from Land Court Judge Keith C. Long, who ruled that town officials “are enjoined and restrained from taking any steps to enforce the Zoning Board of Appeals cease-and-desist order” issued last year against O’Brien’s company, GJO LLC, located at 11 Roger Road.
And click here to read the town’s as-yet unsuccessful opposition filings, which included an extensive argument against granting the injunction, as well as affidavits from town counsel David Doneski and two neighbors.
Long emphasized that the ruling and his findings are “necessarily preliminary in nature and may change as further evidence is presented during the course of the case.”
In addition, Long said the ruling should not be seen “as having any precedential weight or effect in further proceedings in this case, all of which shall be determined in light of the evidence offered and admitted on those occasions.”
O’Brien had sued May and members of the ZBA — both collectively and individually — in order to challenge the order and seek relief from the court. The Select Board had voted earlier to back the ZBA’s decision to enforce the order.
The case has been an enormous headache for town officials and nearby residents in the Blue Hill neighborhood and has so far cost tens of thousands of dollars in billable hours from the town’s law firm. Last December, several angry residents who live near O’Brien’s trucking operation went to a selectmen’s meeting and declared their neighborhood under “industrial siege.”
They complained about what they said was a decades-old nuisance: a heavy-equipment business whose vehicles roar up and down the residentially-zoned Blue Hill and Roger roads at all hours of the day and whose owner seemed to be ignoring the Nov. 22, 2017, cease-and-desist order issued by May.
The temporary injunction issued by Land Court last week also shed light on the history of the property’s use and the legal issues brought to bear that enabled O’Brien to win the injunction.
At issue is the fact that trucking operations began in 1929, before the town of Great Barrington enacted its first zoning bylaws at town meeting on March 28, 1932. At that time, those bylaws zoned 11 Roger Road as residential. But trucking operations “have been continuous, in one form or another, since that date.”
So O’Brien’s operations on the property are considered a nonconforming pre-existing use, but that use may continue because of what is known as “grandfathering,” or allowing an otherwise illegal use because it predates the law that prohibited it. However, that nonconforming use cannot be substantially expanded without clearance from the town.
In order to win a temporary injunction of this sort, Long said, GJO must argue the merits persuasively and demonstrate that without an injunction, the company “will suffer irreparable injury” and that “the injury outweighs whatever injury the proposed injunction will cause” the town.
Evidently, Long found the merits compelling because in his ruling, he cited case law and found that, regarding the protected use (trucking), “an increase in the amount of business, ‘even a great increase,’ remains protected so long as it does not work a change in use and is not ‘different in kind’ in its effect on the neighborhood.”
Long was not able to determine the extent of the use of the property for trucking operations dating to 1929, when the property was under different ownership and eventually was acquired by Leamon Roger, who ran Roger Trucking, in 1946.
But Long did have access to data from the mid-1990s, when an agreement for judgment in the town of Great Barrington vs. Leamon Roger was filed. Long found no expansion since that time and that indeed “there was an even greater number of similarly sized and types of trucks in use at the GJO site in 1996 that there are now.”
“The harms have to be balanced,” Long said. “For GJO, the harm is the effective shut-down of its trucking business if the cease-and-desist order is enforced.”
Long allowed the trucking operations to continue with some restrictions. Click here and scroll down to page 8 to see the terms.
Meanwhile, a Roger Road neighbor, Roger Belanger, has sued the ZBA for failing to enforce the Nov. 22, 2017, cease-and-desist order issued by May. The Select Board has met several times in executive session in the last few months to discuss both the O’Brien and Belanger lawsuits. In addition, Town Manager Jennifer Tabakin said O’Brien is appealing the 11 violation tickets that May has issued in connection with GJO’s alleged violations.
In July, the Select Board proposed to buy the property from O’Brien for almost $300,000. That proposal failed when taxpayers at a special town meeting in August rejected the proposal to buy 11 Roger Road.
See video below of the special town meeting in August when voters debated and rejected the proposal:
Blue Hill Road resident Michael D. Andelman, who spoke at the special town meeting in August and has been among the most vocal of the neighbors, told The Edge he was disappointed in the ruling and that he and others disagree with Long’s findings that there is less trucking activity at 11 Roger Road than there was 22 years ago.
“I don’t understand what went wrong with the town’s efforts to stop this,” Andelman said. “I’m exhausted, confused and really tired of all of this.”
Asked what the next step is for Great Barrington, Select Board Chairman Steve Bannon declined to offer specifics but he did say the town’s work is not finished.
“This is just the preliminary stage and not the end, but just the beginning,” Bannon said. “The town will continue to pursue this. We’re not giving up on the case.”
But Bannon acknowledged it will come at a cost. Before the town meeting was held to vote on acquiring 11 Roger Road, Doneski, the town counsel, said without the purchase, the litigation on the dispute could drag on for another year, costing the town even more than the $30,000 it had already spent trying to enforce the most recent cease-and-desist order. Doneski’s law firm has estimated that the legal bills to defend the appeal to the ZBA ruling will be up to $100,000.
O’Brien attorney Kate McCormick did not return a message seeking comment.
