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Neighbor-On-Neighbor Dispute Dismays Tight-Knit Orchard Lane Community

by Russell Harris
Neighbor-on-neighbor disputes are unsettling, both for the individuals directly involved and for the community as a whole, especially when the issue pivots on the interpretation of town bylaws. We are reminded of the recent neighbor-on-neighbor dispute in Lost Lake and the angst created by that mess.
     Now there is another neighbor- on-neighbor property dispute that came before the Zoning Board of Appeals [ZBA] at their regularly scheduled meeting on February 5. The new owner of the 191-acre property, commonly known as Brooks Orchards says Joshua Degen’s company, Earthscape, is in violation of parts of Groton’s zoning bylaw and wants the ZBA [Zoning Board of Appeals] to order ‘the removal . . . of the equipment, vehicles, materials and supplies used in the business of Earthscape and ordering that the premises cease to be used as a business office.’
     Kicking off the dispute, Attorney Thomas A. Mullen of Lynnfield submitted a request to building inspector Ed Cataldo on behalf of the owner of the Brooks Orchard property on Nov 27, 2019, asking Cataldo to enforce the zoning bylaw against Mr.
Degen for ‘illegal maintenance of a contractor's yard and a business office at property at 409 Martins Pond Road,’ the location of Mr. Degen’s home and landscaping business known as Earthscape, Inc.
     In a letter dated December 3, Cataldo ruled against Attorney Mullen and his client, saying that a previous town building inspector had determined that Mr. Degen’s use of his residential property for a landscaping business was allowed under the town’s Residential/Agricultural zoning bylaws, further adding that the equipment kept on site was also permitted because it was considered accessory to the property’s agricultural use. Catalado said he agreed with the previous building inspector’s interpretation of the bylaws.
     Attorney Mullen responded that his client ‘respectfully disagrees’ with Cataldo’s interpretation. The zoning bylaw is clear that some of the uses on the Degen property are not permissible, according to Mullen. Among the uses expressly forbidden under the town’s zoning bylaw, are a “contractors storage yard, including office yard and storage facilities for construction or landscape contractor or similar establishment,” Mullen said.
     Mullen said his client does not object to using the property as a nursery but rather his primary objection is to the use of the property as a ‘contractor’s storage yard’ which, he said, was ‘absolutely forbidden’ under the zoning bylaws.
     In conclusion, he said, “I respectfully ask the ZBA to reverse the decision of the building inspector.” He said he wants the ZBA to enforce the zoning bylaws by “ordering the removal from 409 Martins Pond Road of the equipment, vehicles, materials and supplies used in the business of Earthscape and ordering that the premises ceased to be used as a business office.”
     After Atty. Mullen spoke, Mr. Degen responded saying that he had reached out to attorney Mullen at least five times and his attorney John Gallant had also contacted Attorney Mullen in attempts to meet with the new owner. Despite at least 10 attempts to meet, however, the new owner refused to meet every time, according to Degen.
     Degen said that he and his wife Amy had moved to Groton, in part, because of the agricultural nature of the community with its enabling R/A zoning saying, “We grow plants; we buy plants; we sell plants and associated materials, which include stone products. We need trucks to move our plant material; we need excavators; we need all this equipment.”
     Mr. Degen stressed that the nursery operation on his property at 409 Martins Pond Road services the landscape portion of the company and provides it with some of the plant material needed for that portion of the business. He stressed that all equipment used for the nursery operation is also used by landscaping services offered by Earthscape.
     He said that the equipment is used as part of the cultivation of plants and trees on his property. He said, “I hope you realize that for 28 years I've been doing what I've been doing.” He said that his company is the same size as when he moved it to Groton 28 years ago.
     Mr. Degen’s Attorney John F. Gallant said, “Mr. and Mrs. Degen use this property for their primary residence as well as having an agricultural, horticultural use that's permissible in an R/A district.
     Attorney Gallant added that there are approximately 30 properties in Groton’s R/A districts used in a similar manner. He suggested that an adverse ruling on the part of the ZBA could put owners of all 30 properties out of business if Attorney    Mullen’s interpretation of the bylaw is upheld by the ZBA.
     Attorney Gallant said that if the Degens are not permitted to operate their business as they have for 28 years, then the Residential/Agricultural zoning district ‘is meaningless’ and would ‘not make any sense’.
     “You can't have a nursery and a home agricultural operation on your property without the equipment necessary to operate it.” He said that everything Mr. Degen does on the property is permitted in the zoning bylaw and that the building inspector’s letter agrees with that interpretation.
     Three neighbors spoke up for the Degens, all echoing similar sentiments, saying that it seemed wrong for new residents to move into a neighborhood and demand that established residents change. John Dunney said, “I live two houses up from Josh. When I moved into the neighborhood, he was established there. I didn't move into the neighborhood to change things. He's trying to scratch a living like everyone else. And I don't have a problem with him.”
     Bill Norrish at 126 Chestnut Hill road echoed similar sentiments. Dean Luther, an abutter said that, in his opinion, it was wrong to move into a neighborhood and “tell somebody else to stop him when they've been there longer than you.” He added that if the new owner would “sit down with Josh, I think the whole thing could be worked out.”
     The Zoning Board of Appeals listened to all arguments carefully, seeming intent on rendering a carefully-considered judgment. Before making any ruling. At the suggestion of ZBA member Bruce Easom, the ZBA voted to conduct a site walk of the Degens’ operation to better understand both arguments. The site walk was scheduled for Saturday, February 8.
     Without objection from Attorney Mullen, the ZBA voted to continue deliberations on the appeal of the Building Inspector’s decision that an agricultural designation at 409 Martins Pond road is not a zoning violation.
     The continued ZBA meeting is scheduled for Wednesday, February 19, 2020 at 5:30 p.m. in Upstairs Meeting Room at Town Hall. A vote and final decision may be made at that time.
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