In a complex case dating back to 2020, the Rochester Zoning Board of Appeals voted to grant Five O’Clock Farm, LLC, a withdrawal of its application for a special permit to operate a commercial horse farm at 66 Burgess Avenue.

            The horse farm, already operating under that previously issued permit, will continue operations by right and under a new, unenforceable agreement with a ZBA, some of whose membership remained perplexed as to what point a new agreement serves.

            The May 25 public hearing lasted over 90 minutes, but member Donald Spirlet said the matter could have been resolved in five minutes and that neighbors with issues such as smelly manure could address them with the Board of Health. Spirlet said self-policing is the best kind, and details of the container for manure should have been deferred to the applicant.

            At issue were conditions originally stipulated in the granting of a special permit that had not been followed, prompting ZBA Chairman David Arancio to question the intentions of the applicant. In revisiting the board’s original decision, Arancio read that it was stipulated that the manure produced at the site be kept inside a covered container and removed weekly. It is currently kept in a pile and removed every two weeks.

            “We’re talking about applying the letter of the law, yet this special permit was in place… yet it was never followed,” stated Arancio, clearly annoyed.

            Represented by Attorney Robert Galvin, owners Ross and Carol Spear were in disagreement with conditions they felt were unfair at their 6.038-acre property located in an Agricultural/Residential District. After receiving a special permit with conditions that the applicant found unacceptable, Galvin said “we took an appeal.”

            A Land Court judge referred the case for mediation with Judge Leon Lombardi, set a date and held an initial conference, at which point Galvin reported that Lombardi yet encouraged talk with abutters before entering mediation.

            Before mediation took place, Galvin said he and then-Town Counsel Blair Bailey agreed that the case should be remanded back to the ZBA, “as, I believe, he agreed with me that the issue that originally prompted the filing for a special permit was likely not a proper issue to require a special permit, and that was the riding lessons.”

            Months had since elapsed and, upon Bailey’s resignation, Rochester hired Mead, Talerman & Costa as its new town counsel.

            With the case remanded back to the ZBA, Galvin requested the board revisit the bylaw and asserted that in the Agricultural/Residential District, a farm is a use that is permitted by right. He also stated that the usage is exempt from site-plan approval. He noted Rochester’s status as a right-to-farm town.

            Galvin said the daughter of the applicants lives in the house located on the farm engaged in the raising, keeping, showing and training of horses.

            “They may have a smaller property, but there is property – 6 acres. I would suggest, even if it was a use that was permitted by right under the zoning bylaw, it would be exempt under Chapter 40A, Section 3,” said Galvin.

            With that, he asked that the ZBA give the applicant permission to withdraw its request for a special permit. Galvin referenced multiple discussions with Town Counsel Jay Talerman (in attendance at the May 25 meeting.)

            While displaying an overhead photo of the site, Galvin turned the subject to manure and referred to abutters Michael and Tonnianne Kennefick, with whom he said he could not come to terms. He displayed a 630-foot distance between the manure pile and Kennefick’s 256 Alley Road property.

            “I think my clients have a lot of support from their neighbors but not every neighbor,” said Galvin, estimating 25 horses on the property with a capacity to house up to 30 inside the barn (the ZBA had conditioned a maximum of 20.) Galvin explained that a show has been occasionally hosted for those who keep their horses on the property.

            Regardless of the legal dispute that canceled the ZBA’s right to issue a permit and impose conditions, Arancio felt the town had been disrespected by the defiance of those conditions during the appeal process.

            Asked for comment, ZBA member Richard Cutler agreed that, “just because you don’t like something, you’ve got a permit that said you’re supposed to do something, and you didn’t do it. That doesn’t strike me as being very civil minded …”

            Several abutters spoke in support of the Spears’ business, while new resident Elizabeth Goodman articulated a measure of concern over how summer’s warmth might change a smell of manure sometimes realized on her property. Jeremy Goodman added his concern that his first impression of his new neighbor was that “they made an agreement they didn’t stick to.”

            Asked to summarize for the board where the town legally stands, Talerman noted that the reliefs in the Agricultural/Residential zone are substantial.

            “It’s been long decided by the courts that equine facilities, riding lessons conducted at those facilities are within the bounds of those protections, provided that they are a primary use of the property,” he said, further pointing out that the residence on the property does not cancel or qualify those rights.

            Talerman said photos and testimony indicate that the level of agricultural activity on the site qualifies the property for such by-right activity. While instructing the ZBA that it cannot require a special permit, he said there is still “reasonable opportunity for regulation” in the application of existing zoning bylaws. If, for example, smell got out of control, Talerman said the board would have recourse.

            He said the ZBA, working with Galvin’s pitch for conditions as part of a new agreement outside of the permit process, could “back-fill” regulatory measures to ensure the applicant abides by the board’s wishes.

            “I think they’re making an effort regardless of what happened in the past with noncompliance. They’re trying to move on,” said Talerman, who referenced email correspondence with Kennefick, whom he says reiterated his concerns.

            ZBA Vice Chairman Thomas Flynn sought clarification on the board’s jurisdiction regarding allowable hours of riding lessons (12-hour days.) Later, Galvin sought to dispel any notion that the business seeks to conduct lessons at those hours, rather only to have those hours available for flexibility’s sake.

            Talerman said some cases concede that lessons, along with the keeping of horses, fall under the zoning bylaw’s protections. “Municipalities have steadily lost the leverage we have,” he said. “There’s more in the realm of protection than there is out.”

            Flynn asked that the town revisit its bylaws addressing such matters.

            ZBA member Michelle Upton applauded the neighbors for their participation in the process. She agreed with member Jeff Costa’s remarks indicating concern over revisiting the case being moot.

            Ultimately, the board settled on allowing withdrawal contingent on conditions proposed in Galvin’s May 25 letter with additional conditions that all signs comply with Rochester’s zoning bylaws, and, in keeping with the applicant’s suggestion, set a 90-day deadline to construct a three-sided structure to store manure.

            The next meeting of the Rochester Zoning Board of Appeals was not announced upon adjournment.

Rochester Zoning Board of Appeals

By Mick Colageo