Hearing to be continued on Great Barrington trucking company's noise level

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GREAT BARRINGTON — The decades-old question of whether a trucking business can continue to operate in a residential neighborhood wasn't answered Tuesday night, as many hoped it would be.

After receiving a slew of new information during a 2 -hour meeting, the Zoning Board of Appeals voted to continue the hearing on Gary O'Brien's appeal of a cease-and-desist order issued by the Great Barrington Building Inspector against his business at 11 Roger Road. The order asserted that O'Brien was in violation of a 1996 agreement on the property restricting activity there.

The November order called for a halt of all "trucking operations" at O'Brien's company, GJO, as well as transfer and dumping at the site. GJO is a trucking business. O'Brien has eight trucks and keeps highway-grade snowplows under state contract on the property.

There were 40 to 50 people in the audience Tuesday night, and lawyers were present representing O'Brien and Building Inspector Edwin May.

The board will reopen the hearing at 7:30 p.m. Tuesday at Town Hall. Zoning Board of Appeals Vice Chairwoman Carolyn Ivory said the board needs time to absorb the new data presented by neighbors at the meeting.

Michael Andelman of Blue Hill Road submitted spreadsheets tracking truck activity on his street, as well as photos and video. Over the past two months, Andelman noted more than 1,000 trips past his home by highway-grade snowplows, sanders, dump trucks and landscaping vehicles he ascribes to O'Brien. Several area residents said the noise, diesel fumes and rumbling vibrations created by GJO activity is waking them up regularly in the middle of the night and ruining the area's peace and quiet.

"We received conflicting information from the lawyers and neighbors," Ivory said. "It made more sense to continue to next time."

When the Zoning Board of Appeals reopens the hearing, Ivory said, the board will take more comments, then close the hearing and deliberate.

How we got here

The crux of this conflict dates to 1929, when a trucking and waste-hauling business was established on Roger Road before the town had zoning bylaws that set conditions for where businesses and residential units could go. The town called the parcel a "nonconforming" lot and grandfathered Roger Trucking into the residential zone. The clause allows for the operation of the business there — but only that one type of business.

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Disputes over whether the trucking company was still the same type of business came to a head in 1996, when the town came to a written agreement with then-property owner Leamon Roger regarding what can and cannot be done on the lot. The agreement stays with the land, regardless of owner, and is terminated if the property is abandoned or ceases to be used as a trucking company.

Years later, neighbors are bringing a complaint against O'Brien similar to the one they brought against Roger: They say O'Brien's trucking business has grown beyond the scope of what is allowed at the property and therefore must be reined in by the building inspector. Paul Feldman, O'Brien's lawyer, said O'Brien is running the same business as the enterprises previously operated at that site.

Arguments for and against

During Tuesday's hearing, Feldman focused his argument for overturning the building inspector's cease-and-desist order on the two cited violations: dumping and trucking activity.

The dumping charge is accurate, Feldman said. O'Brien had dumped material on his property to extend his parking lot without applying for a town permit. To remedy this, Feldman said, all the fill was removed and the lot was restored. If the lot is to be extended, O'Brien will get a permit, he said.

Feldman argued that although the business has grown since O'Brien purchased the property in 2010 for $225,000, that does not qualify as a change in the type of work going on at 11 Roger Road.

"There are seven to eight trucks. They leave in the morning, not necessarily all seven to eight of them go out, and basically they are rented by customers to haul dirt, and when they've done their job, at the end of the day, they come back to the site," Feldman said. "That is exactly what Leamon Roger's business was."

The building inspector's lawyer, Donald Dubendorf, argued that O'Brien is in violation of the town's 1996 agreement. In state and local documents, 11 Roger Road was and is a waste-hauling business and nothing more. In reality, he said, there are more businesses being operated out of the property, including a snowplowing enterprise. He also noted that there are more trucks driving in the area than there have been, some allegedly associated with O'Brien's landscaping business in Lee. Dubendorf said heavy landscaping equipment and snowplowing trucks have changed the nature of the business way from the initial waste-hauling company that had operated there.

"There are businesses described that are different than the uses in the '96 agreement," Dubendorf said. "They have something in common — they use trucking — but that's not the same use" as the property's original business.

In return, Feldman said that Roger Trucking had offered snowplowing at the site since it launched in 1945, so it should be allowed, and the landscaping business, Gary O'Brien Property Services, stays in Lee.

Kristin Palpini can be reached at kpalpini@berkshireeagle.com, @kristinpalpini on Twitter, and (413) 629-4621.


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