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ZBA Seeks Outside Counsel Opinion On Degen-Guinee Dispute

John Guinee, new owner of the 191-acre Brooks Orchard property, spoke at the February 19 ZBA Hearing, explaining his reasons for challenging the Building Commissioners decision.

 

Does The Degens’ Business Have Grandfather Status Under Chapter 40 of the General Laws?
by Russell Harris
 
At a regularly scheduled meeting of the Zoning Board of Appeals on February 5, the new owner of the property known as
Brooks Orchards came before the Zoning Board of Appeals to argue that Joshua Degen’s company, Earthscape, at 409 Martins Pond Road, which abuts the 191-acre Brooks Orchards property, is in violation of Groton’s zoning bylaw. Attorney Mullen, representing his client, John Guinee, wants the ZBA 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.”
     After the ZBA heard legal arguments, they decided a site walk was needed to help understand both sides’ arguments. With Mr. Degen’s permission, the ZBA conducted a site walk of the Degen property on February 8.
     On February 19, at the continued public hearing, Attorney Mullen, representing John Guinee, seemed to soften the language of his demands. He said that although John Guinee is “very concerned about the gateway to his home being full of material that would only be appropriate in a landscape contractors yard, which is a use that is not permitted anywhere in this zoning district,” his client, “does not want to punish Mr. Degen. He does not want to prevent anybody from doing business. He simply wants the property to be cleaned up so that it looks like any property should in the area zoning district.”
     About 30 residents came out in support of Degen. One man expressing common sentiments of Degen supporters said, “We have a lot of people in town who have home occupations - landscapers, farmers, nursery operators, snow plowing, whatever. We have people not far from us who are electricians, plumbers, blasters, and similar tradespeople. They keep their equipment at their houses, in their driveways. Groton has always been a very mixed community. We are not an antiseptic suburb, as some people might expect. When someone moves to this town, they should not expect Groton to be clean and tidy with houses all in a neat row.”
     ZBA member Bruce Easom said, “I don't believe that there are two sets of rules or regulations for new people to the town and another for people who've lived in the town for 30 years.” He said it is the ZBA’s responsibility to interpret any situation based on the bylaws and to come to the best decision based on the facts.
     Member Easom said that there seemed to be two issues the ZBA needed to resolve in this case. First, he said, the two parties disagreed on whether Mr. Degen’s business is ‘grandfathered.’ He said that since there is disagreement on what the law says, the ZBA would need expertise provided by town counsel in order to know which of those two interpretations of the law is correct.
     He added that if outside counsel says Degen’s business is grandfathered, there will be no need to take further action since the business could operate as it has for the last 28 years. However, if the property is not protected by a grandfather exemption, he said the ZBA could ask Mr. Degen to apply for a special permit.
     Discussing his views on the possible need for a special permit, member Easom said, that both sides agree that agricultural activities are permitted either as a main or an accessory use in an R/A district.
     However, in his view, Easom said that the landscaping portion of business operations on the site are significant. He said, “I think there is an attempt to use the agricultural exemption or provision to cover that activity.” He added, “There seems to be a reasonableness test in which the landscaping portion falls under the broad umbrella of agriculture.”
     He added, “If the landscaping activity is extremely minor and only incidental to the agricultural activities on the property, I would be willing to say that the entire parcel is covered, therefore, by agriculture and is does not meet (the criteria for) the filing of a special permit.” He continued, “But that's not what I saw when I took a tour of this facility. I would say somewhere around half the activities on that property are associated with the landscaping business. Not entirely, but a significant portion.” He said that if a hypothetical new business wanted to operate a similar nursery/landscaping operation in an R/A district, a special permit would probably be needed.
     Easom suggested that a special permit would probably be required “because it doesn't meet the requirements of the bylaw law with regard to what kind of activities are allowed without a special permit” and because it “impacts on the neighborhood broadly speaking.”
     Member McLaughlin then made a motion to asking Town Manager Haddad for a special counsel to review the 1998 Home Occupation Permit, the three Building Inspector decision letters and the two letters submitted Atty. Mullen representing John Guinee and Atty. Gallant, representing Josh Degen to determine whether grandfathered status is provided under Chapter 40A. The motion was seconded and passed unanimously by roll call vote. The ZBA then agreed to continue their deliberations on the matter on March 4 at 7:00 in the upstairs meeting room at Town Hall.
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