Farmer’s Market Developer Withdraws

Instead of a farmer’s market, Rochester may soon have another solar farm, one of several options property owner Craig Canning will be exploring.

The plans for a farmer’s market off Marion Road in Rochester are no more, now that Canning has withdrawn his Special Permit application with the Rochester Zoning Board of Appeals and his Site Plan Review application with the Planning Board.

Neighbors Maryann and Kenneth Cutler who live at 223 Marion Road appealed the ZBA’s Special Permit to build the agricultural farmer’s market-style commercial development, sending the matter to Wareham District Court, and they also filed an appeal of the Planning Board’s Site Plan Review approval with the Plymouth County Superior Court.

In a letter dated December 13 and reviewed by the ZBA during its December 14 meeting, Canning informed the ZBA that he would be settling with the Cutlers and rescinding his Special Permit request with the board.

The letter reads, “Unfortunately, projected litigation costs make the project economically unfeasible at this time given the two lawsuits filed.…”

ZBA Chairman Richard Cutler stated that two things would now follow – the finalized paperwork would be filed with the courts and then the ZBA would officially vote to accept Canning’s withdrawal. However, there was nothing further the ZBA could do that night, so Cutler continued the hearing until the next meeting.

“Once resolved, [the matter] will come before both boards, and we’ll act upon the letter received,” said Cutler. “There’s really nothing for the board to decide at this time. He’s withdrawn his application, and it’s his to withdraw.”

In a follow-up with Canning, when asked about the possibility of leasing or selling the land to potential solar developers, Canning replied, “At this point, I am not sure. I will be looking at the remaining options for the property to decide what makes most sense.”

Also during the meeting, Wellspring Farm abutter Cathy Mendoza filed an appeal of the Planning Board’s Site Plan Review approval over the allegation that Wellspring Farm owners Holly and James Vogel have been violating state noise regulations, rendering the neighborhood still in “sheer chaos.”

Mendoza praised the Planning Board for its “excellent job” but said that noise levels had not been adequately addressed.

Mendoza said, under the suggestion of Town Counsel Blair Bailey, she acquired an online app that measures noise levels. Mendoza subsequently took a number of samples, she said, and found the experiential therapeutic facility has repeatedly exceeded noise limits, prompting her to contact the Massachusetts Department of Environmental Protection.

One incident, she said, involved a “pretty unhappy client” who she said “wailed for about a half hour.”

“Which is pretty disturbing,” she said.

Car doors slam, car alarms are set off, people lay on their horns, and therapists, clients, and parents discuss sensitive matters loudly, she added. The 8-foot stockade fence, a condition of the Vogels’ decision, is inadequate for noise prevention, Mendoza claimed.

The real issue, Cutler pointed out, is that Mendoza appealed the Planning Board’s decision, an implication that the Planning Board “did not do its job,” as Cutler put it.

“No,” Mendoza said, “I’m just saying that [if the law is a twenty-foot buffer], then why are they allowed operate within that?” Why isn’t there foliage and obstructions to keep people from encroaching upon the 20-foot buffer between Wellspring and Mendoza’s property line, she asked.

Mendoza also alleged that Wellspring operations contradict past traffic studies and testimony given on behalf of the Vogels, saying they misled the Planning Board.

“I was hoping the board would revisit this and put in some noise … mitigation,” Mendoza said. “I don’t know what it’s going to take to bring this noise into compliance with the state noise level requirements, and in absence of a town noise ordinance, it automatically goes to the state ordinance, but right now it’s operating outside of it.”

“DEP will basically shut the business down, they don’t care,” stated Mendoza, offering her solution that the 20-foot buffer be enforced and further foliage be provided to buffer noise.

She also claimed she took noise samples between 10 to 30 decibels above the ambient noise baseline.

Planning Board Chairman Arnie Johnson was present to address Mendoza’s appeal.

“Listening to Ms. Mendoza,” said Johnson, “there’s a couple of things. Some of them don’t really relate to the [actual decision].”

Johnson stated that if the Vogels were in violation of the Order of Conditions, then it should be reported to the Planning Board, which would address the allegations and enforce and violations.

Johnson said the 20-foot buffer did not have to necessarily be trees, simply “vegetated,” which could mean just grass and fencing. He did state that the decision included a waiver of the buffer from a certain point to another point of the property line by some woods on Mendoza’s land because in order to satisfy the 20 feet, actual buildings would need to be moved to rebuild the driveway.

“Kind of a unique situation where we already have an established business,” said Johnson, as opposed to working with a “clean slate.”

“To create that twenty-foot buffer, the whole farm would have to shift,” said Johnson. “And that didn’t make sense to the board at the time.” He also said that people are allowed to walk inside the buffer.

“This was a neighborhood that once saw zero noise … and now it’s just sheer chaos at some times,” Mendoza stated. “I’ve seen people back [their vehicles] right up to the fence.”

Across the room, the Vogels shook their heads ‘no.’

“I can disagree with pretty much almost everything [Mendoza said],” Attorney George Boerger said on behalf of the Vogels. Furthermore, he said Mendoza had no basis to overrule the Planning Board’s decision.

“We went through a number of hearings with the Planning Board,” said Boerger. “If there’s a complaint before the Planning Board, it’s about the requirement, not the Site Plan [decision],” said Boerger.

Boerger reminded Mendoza and the ZBA that its decision was unanimous to approve the Vogels’ Special Permit, and the Conservation Commission’s jurisdictional decision was also unanimous, as well as the decision by the Planning Board, which should be affirmed.

“The real issue is whether or not the ZBA thinks the Planning Board functioned properly and voted properly,” reiterated Cutler, adding that the ZBA would likely not issue any decision that night and Mendoza likely should have brought her concerns up directly with the Planning Board.

In regard to the noise, Johnson said, the noise standard in the decision defers to the state’s statute. The Planning Board could request a noise study to put the issue to rest, Johnson said, if it comes before the board properly.

The Vogels have until June 2018 to complete all conditions required by the Planning Board, and the board would make a site visit to ensure compliance, said Cutler.

“I would like to take the opportunity to review [the information],” said ZBA member David Arancio, motioning to continue the hearing until the next meeting.

The next meeting of the Rochester Zoning Board of Appeals is scheduled for December 28 at 7:00 pm.

Rochester Zoning Board of Appeals

By Jean Perry


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