Land use attorney hired to untangle row between trucking outfit and its neighbors in Great Barrington

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GREAT BARRINGTON — The town has hired an expert attorney in its ongoing dispute with the owner of a trucking company, which it claims has expanded its operation in a residential neighborhood.

The Select Board last week approved the hiring of attorney Donald Dubendorf to represent the town in its bid to enforce a cease and desist order against Irish Trucking and Gary O'Brien Trucking on Roger Road.

O'Brien, the owner of the business, has filed an appeal to rescind the order, and a hearing with the Zoning Board of Appeals is set for Feb. 20.

The location at the top of a hill has been home to private garbage collection firms since 1929, three years before the town enacted zoning bylaws, and thus has been allowed to operate as an industrial site as a pre-existing use.

But over the years, more homes went up near the site, from which early morning and late afternoon convoys barrel and brake past homes and rattle residents.

Zoning Enforcement Officer Edwin May has twice issued cease and desist orders since O'Brien purchased the business in 2010, citing growth that included too many trucks, too much heavy equipment and employees, and the dumping of various kinds of waste, such as concrete debris and tree stumps.

The most recent order, issued Nov. 22, demands O'Brien immediately stop all trucking, transfer and dumping at the Roger Road site.

In his appeal, O'Brien says his company is adhering to a 1996 court-ordered agreement with the town about the use of the property. The town that year had sued the previous owner, Leamon Roger, who had to abide by a judgement to stop all garbage-related activity, including the transfer of construction demolition debris, and which said other people, companies or operations aren't allowed to pick up anything at the site. This judgment was transferred to O'Brien when he bought the property.

Neighbors contend they can tell the business has grown. Despite May's enforcement tickets, they say noise, diesel pollution and the volume of speeding garbage and other trucks has increased over the last year, though there has been a notable decrease over the last two months since residents began speaking out at Select Board meetings.

The town issued its first cease and desist order in 2010 against O'Brien, who appealed the ruling and ultimately prevailed two years later in Berkshire Superior Court. That victory absolved him of paying $80,000 in fees, according to Blue Hill Road resident Paul Jones, who recently furnished the Select Board with this information.

O'Brien had an attorney in that case; the town did not.

Dubendorf, based in Williamstown, is considered a "well-known expert in the area" on land-use matters, and has lectured widely on the subject, Tabakin said. A cap of $8,000 was placed on his services — work beyond that will be free of charge.

Several of O'Brien's neighbors were present at the recent Select Board meeting. One was Michael Andelman, of Blue Hill Road, who is continuing to lead a neighborhood campaign to reduce the impact of what Jones has called an "industrial siege," saying that apart from air brakes and other jarring sounds, the truck exhaust frequently befouls the air and coats homes and yards with a fine dust of diesel particulate.

Andelman said he was happy to hear Dubendorf had been hired.

"At this point my interests are the interests of the town," he said, noting that both want to uphold the cease and desist order.

But Tabakin hedged a bit, saying Dubendorf isn't representing the residents, but the town, in what she said would be an attempt to balance both the needs of a long-established business and its neighbors.

Selectboard Chairman Sean Stanton agreed with Andelman that both the neighbors and the town have the same interests, calling the level of trucking activity "pretty egregious in what is a residential neighborhood."

Yet "cease and desist" means just that — and since O'Brien has not complied, board Vice Chairman Stephen Bannon suggested to Tabakin that Dubendorf be consulted to determine whether May should continue issuing violation tickets to O'Brien, or to simply wait for the ZBA hearing next month.

In response last month to The Eagle's questions about his operation, O'Brien sent an email from his attorney, who said the company believes it is not violating the town's bylaw, yet is "working with the town to resolve any legal issues that may exist."

And for O'Brien's current appeal, attorney Kathleen McCormick wrote that the company has not violated the 1996 court-imposed agreement with the town, and "it is not dumping concrete debris, tree stumps and other waste at the property."

Heather Bellow can be reached at hbellow@berkshireeagle.com or on Twitter at @BE_hbellow and 413-329-6871.


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