Editor’s note: This article has been corrected to reflect O’Brien’s holdings. GJO LLC does not own Roger Trucking. It is owned by RWB Services LLC.
Great Barrington — The Great Barrington Selectboard has recommended that a cease-and-desist order issued to a local business by the zoning enforcement officer Edwin May be upheld by the town board that will hear the order’s appeal.
In a unanimous vote Monday night, the selectmen urged the Great Barrington Zoning Board of Appeals to reject the appeal of Gary J. O’Brien, whose trucking company has been told to halt its illegal practices on Roger Road. The public hearing for the appeal is set for Tuesday, February 20.
“It’s fairly straightforward and I’m looking forward to the hearing,” said Don Dubendorf, a Williamstown attorney who has been hired to represent the selectmen and the code official in the O’Brien case. Click here to see Dubendorf’s CV.
The ZBA will have its own attorney at the hearing from KP Law, the firm that serves as town counsel. None of the neighbors whose complaints prompted the order have said whether they intend to hire their own lawyers, but Dubendorf and selectboard Chairman Sean Stanton implied they should.
In December, several angry residents who live near O’Brien’s trucking operation went to the selectmen’s meeting to complain about a decades-old problem: 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 cease-and-desist order issued Nov. 22, 2017, by building inspector and code enforcement officer Edwin May.
Dubendorf said he and the selectmen are seeking clarity from the hearing and, if it gets that far, from the courts.
“If we’re successful, it will go a long way toward defining what is and what is not allowed,” Dubendorf said of the town’s zoning bylaws. “What you have to know is that, if there is an order upholding Ed’s order, then the town proceeds to enforcement and that involves judicial action. If they overturn his order, we’ll see what the next step is.”
Dubendorf described the process as “a little bit lengthy,” which might have been the biggest understatement of the night. He added that “there are property rights at stake and zoning’s the way we mediate those issues of neighbors, property rights and those things which pre-exist zoning and don’t pre-exist zoning.”
“But I think Ed’s order is a serious effort on the part of the town to enforce its bylaw and I would ask for your endorsement of it,” he said.
Duberndorf was hired late last year when, over the objections of Town Manager Jennifer Tabakin, the selectboard discussed the legal ramifications of the O’Brien controversy in open session. The board later voted unanimously to require May to be represented by an attorney if May’s presence is required either in the February 20 hearing before the ZBA or in court.
At the selectboard meeting in December when the O’Brien controversy first resurfaced, neighbors in the Blue Hill and Roger roads neighborhood said they felt they were under “industrial siege.”
O’Brien’s company, GJO LLC, operates various businesses including Irish Trucking and O’Brien Landscaping.
O’Brien’s Great Barrington operations, while located in a residential zone, predate the town’s adoption of zoning regulations in the 1930s, so they are considered pre-existing nonconforming uses. Any expansion of a nonconforming use, however, is strictly regulated and typically requires a special permit.
O’Brien has pushed the envelope and has been issued multiple cease-and-desist orders in the last six years. On June 23, 2011, May issued O’Brien an order to immediately cease using the property as a landscaper’s yard because he was only permitted to use it as a tree farm. If he wanted to use it as a landscaper’s yard, he would have to apply for a special permit from the ZBA. The property had been found to be in violation three times in seven months.
The most recent order, dated Nov. 22, 2017, can seen by clicking here. It cites “multiple complaints” over the past four months about trucks “rumbling up Blue Hill Road, dumping materials and heavy equipment at early morning hours.” The order demands that O’Brien cease the illegal activity immediately.
May said O’Brien’s actions exceed the sort permitted on a property whose use is nonconforming. Furthermore, O’Brien’s operations are a violation of the 1996 agreement for judgment in the case of the Town of Great Barrington v. [previous property owner] Leamon Roger, an agreement May had also cited in previous orders. That judgment ordered O’Brien to halt all transfer-station activities.
May’s site visit of Aug. 22, 2017, revealed waste dumping and the expansion of a parking lot without a site-plan review required by the town’s zoning bylaws. May ordered O’Brien to file for a site-plan review with the planning board.
Now, in an apparent change of strategy, O’Brien attorney Kate McCormick has sent a letter to the town, dated Jan. 29, 2018, insisting her client no longer wants to appeal May’s most recent order. Click here to read it, along with an email from ZBA secretary Bernie Drew.
McCormick says that, “upon further review,” her client now feels he had the right to bring in fill material “to improve the property” and has therefore not violated the agreement that came out of the court case in 1996.
“In any event, given that the disputed activities have stopped and the use at 11 Roger Road is consistent with the scope and character of the Agreement … GJO does not intend to press its appeal,” McCormick wrote.
Instead, O’Brien wants to apply for a site plan review through the Planning Board. Of course, if the ZBA denies the appeal, even after O’Brien withdrew it, the matter would likely wind up in court again. McCormick could not be reached for comment.
Blue Hill Road resident Michael Andelman asked about fines levied against O’Brien. O’Brien did at one point pay some fines, which May said is considered a de facto admission of guilt in the eyes of the law.
Stanton did not know whether the fines could continue to be levied while the case remains under dispute. Dubendorf insisted enforcing the order and the fines are “separate issues.”
“As I see it, the fines could have been accruing dating back as far back as 2011 at $300 a day, so there could be a potential boon for the town,” Andelman said, eliciting a few laughs in the room.
“At the end of the day, more important than the fines is to resolve the issues at hand – and I don’t mean to diminish the punitive character of that – but I would just urge some patience until we do our best effort to clarify,” said Dubendorf. “You will have access to the courts not only for the violation but for the fines.”
Stanton emphasized the concerns of the neighbors and explained that a cease-and-desist order was first issued “and they said they were going to stop. They stopped for a period of time, they started again and they’ve been going for years, and they could continue for years and we want to know – and the neighbors, too – so what’s the next step?”
Dubendorf again placed his faith in the justice system, telling Stanton that’s what the courts are for. A judge can set the terms for enforcement and can rule on fines. And of course, if the judge upholds May’s order and O’Brien continues to operate in defiance of it, then the neighbors can retain counsel and file a lawsuit against O’Brien’s company. In extreme cases, a criminal complaint can be filed against the violator and the police can be called upon to enforce the court order, according to the Executive Office of Housing and Economic Development.