WESTFIELD – The Zoning Board of Appeals voted unanimously last night to reverse a 2010 decision upholding orders issued by the Superintendent of Buildings halting construction of two houses on Furrowtown Road after a Hampden Superior Court judge found that the board’s decision “was unreasonable, arbitrary and capricious.”
Judge Richard J. Casey issued an order, dated Jan. 15, 2013, annulling the ZBA’s decision to uphold then Building Superintendent Don York’s cease and desist order for gravel removal and his denial of building permits.
The plaintiff in the case, developer Frank A. DeMarinis, was issued a disposal permit for residential construction of three houses at 6, 10, and 12 Furrowtown Road in early 2010.
York issued a cease and desist order for the earth removal to DeMarinis on April 24 after residents complained that dozens of trucks were hauling gravel from the site, creating dust and noise, and which was in fact a gravel removal operation.
The ZBA voted to uphold York’s actions, arguing that the excavation far exceeded what was required for site preparation and that DeMarinis could seek a special permit from the Planning Board for further gravel removal.
Casey found that while city ordinance does require a special permit, issued by the Planning Board, for earth removal, the ordinance also provides exemptions for excavation required for “infrastructure on each lot” including soil excavation up to 150 percent of the area needed to install “foundations, sanitary sewer systems, drainage systems, driveways, paths, accessory structures and other appurtenant infrastructure.”
“This section (Section 5-10) excludes from special permit status the removal of earth material necessary for certain residential development including removal required to complete infrastructure (up to 150 percent of the volume), the transfer of material from one part of the lot to another (site work done in conjunction with a disposal permit) and various municipal excavations,” Casey said citing the case of Coggin vs., Westfield (2009).
“The ordinance plainly sets forth exemptions to the special permit requirement and, therefore, requiring a special permit before considering whether the exemptions were applicable would be absurd and unworkable,” Casey wrote in his decision.
“For the foregoing reasons, it is hereby ORDERED that the decision of the defendant Westfield Zoning Board of Appeals, affirming Donald York’s cease and desist order and his denial of the plaintiff’s application for an earth removal exemption, it hereby ANNULLED. Further, the matter is hereby REMANDED to the defendant zoning board of appeals for further proceedings consistent with this opinion,” Casey wrote.
