Mendoza Loses Appeal, Threatens Lawsuit

Wellspring Farm’s biggest foe, next door neighbor to 42 Hiller Road Cathy Mendoza, had her appeal to the Rochester Zoning Board of Appeals to overturn the Planning Board’s Site Plan Review denied on February 8.

When the continued public hearing was opened, Mendoza suggested the ZBA table the discussion for now, claiming that the Board of Selectmen was now “involved” after she sent them a letter pertaining to her dissatisfaction with the town’s handling of her complaints against Wellspring Farm, the therapeutic horseback riding center located within a residential zone.

In that letter dated January 27, of which she sent a copy to the Planning Board but not to the ZBA, she wrote to the selectmen saying that she was unsatisfied with the board’s past recommendation that “two other boards are handling this matter,” asserting that back in January 2017 the board denied other Hiller Road neighbors “access” to the Board of Selectmen, writing, “Had you not refused to intervene, you would have had the opportunity to instruct the ZBA to have your Zoning Enforcement Officer do his job.”

Mendoza told the ZBA that the Board of Selectmen was now “involved” after Selectmen Chairman Brad Morse confirmed during the February 5 meeting of the Board of Selectmen that Town Counsel Blair Bailey had reviewed Mendoza’s letter and suggested, “I’d like to ask him to respond to it.” At that meeting, Selectman Naida Parker motioned to take the matter under advisement until Bailey responds to the letter.

Mendoza alleges that, because Wellspring Farm owners Holly and James Vogel did not file an application for Site Plan Review with the Planning Board within the 90 days stated in the ZBA’s standard conditions in its Special Permit for commercial use within a residential zone, taking instead 151 days for the formal filing, it rendered the ZBA’s Special Permit null and void.

On February 9, attorney for the Vogels, George Boerger, said the Vogels did meet for a preliminary pre-submission hearing during that 90-day period, which required preparation before a formal application submission.

But it was the actual filing of the application that Mendoza was concerned with, saying the formal Site Plan Review application was supposed to have been filed within 90 days.

“[Bailey] is going to decide whether a permit actually exists,” Mendoza said. She said Bailey, in a prior discuss with him, acknowledged that the formal filing with the Planning Board was not filed within the 90 days.

“I’m still not sure what the Board of Selectmen has to do with this,” ZBA Chairman Richard Cutler said.

“Because it is still not being addressed,” replied Mendoza.

ZBA member Kirby Gilmore said that since the ZBA had not received any correspondence from the selectmen from Bailey then the ZBA could not be concerned with Mendoza’s assertion that the selectmen were involved.

Back to Mendoza’s 90-day filing concern, Cutler said, “Yes, we did say that they needed to apply with the Planning Board. The Planning Board process requires some preliminary meetings before the actual filing of the paperwork.”

Yes, but the application has to be before 90 days, not 151 days, Mendoza replied.

“[The Town] can enforce laws at the local level, or we can go to Superior Court and be told to enforce the laws,” said Mendoza. “That’s where we’re at at this point and [Bailey] understands that’s where we’re at.”

Perhaps the Vogels did not file before the 90 days, but they did proceed with the Planning Board within the 90 days, Cutler said.

“It doesn’t matter,” said Cutler.

“It does to me,” said Mendoza.

“They did proceed with the process,” Cutler said.

“That’s not [Bailey’s] opinion,” said Mendoza.

“He’s not here,” Cutler said. “This is my opinion.”

Cutler suggested the board proceed with the matter and vote on it that night.

Boerger told the board, “It’s our opinion that the Planning Board really did a very good job in putting together the Site Plan [Review].” He continued, “There’s absolutely no basis for the Zoning Board to reverse the decision of the Site Plan.”

Boerger added that there is a mandatory 20-day appeal period once the Planning Board approves a Site Plan, but Mendoza chose not to appeal the approval at that time.

“Essentially, what Ms. Mendoza’s trying to do is to circumvent the twenty-day appeal period and come back in,” said Boerger.

Menodoza said that’s what Boerger said the last time they met. “Oh, my God,” said a visibly annoyed Mendoza. “Nauseating…”

In her appeal to the ZBA, Mendoza also requested additional safeguards be implemented, such as the full enforcement of a 20-foot buffer from the property line, which was waived by the Planning Board due to the placement of structures and the driveway that pre-existed the Site Plan Review. She also suggested additional vegetation within the buffer zone to mitigate noise such as clients and therapists having “loud” conversations that Mendoza claims is still a problem for her.

“To the extent that they’re trying to add additional restrictions,” said Boerger, “We had a noise engineer…” Mendoza interrupted him, saying, “What was his name? Such a liar…”

Boerger said he, too, has spoken to Bailey. “He certainly agrees with the position I advanced, and the statement that was made by Ms. Mendoza is not accurate, is completely opposite to what I was told.”

“That’s fine,” said Mendoza. “Let’s go forward with the appeal as written, but I am very concerned with the noise situation. I want what is written in the law. I want a full twenty-foot vegetated buffer on their side of the fence. I think that’s reasonable.”

Mendoza continued with a diatribe over noise and cars beeping their horns, and said the Vogels have been lying.

Gilmore said Mendoza was out of order.

“I’ve already met with an attorney,” said Mendoza. She added that she would also file a civil lawsuit against the Vogels for the noise.

Public discussion was closed, and the board continued deliberating on whether or not to vote that night, “talking it out” as ZBA member David Arancio called it as the board vacillated between the options of waiting for Bailey’s reply or moving forward that night with a vote.

“I don’t see the issues that are raised in this appeal,” said Cutler. “In my opinion, all those issues have been adequately addressed by the Planning Board. The things that are part of this appeal are mainly enforcement issues … with the zoning enforcement officer.” He added, “There isn’t anything we as the [ZBA] can add to this.”

The vote was unanimous to deny Mendoza’s appeal. Mendoza had already left the meeting by that time.

In other matters, after Arancio recused himself and left the meeting because his in-laws designed the plans for the project up for discussion, the board approved the Special Permit and Variance to construct a two-family single-level house on Neck Road filed by Jeanne and Erline Sciuto. Special conditions include no commercial use, no accessory structures other than allowable sheds unless an application is filed, and one unit must be owner occupied at all times.

Some abutters lamented that a house was being built in the open field across from them, but Cutler later commented, “Obviously, I think we would all love to see that field stay a field but that is not our option, that is not our property.”

The next meeting of the Rochester Zoning Board of Appeals will be March 8 at 7:00 pm at the Rochester Town Hall.

Rochester Zoning Board of Appeals

By Jean Perry


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