By BOB TUROSZ
NORTH READING – The Zoning Board of Appeals held a discussion last Thursday night on the long-running appeal of Mark DeSimone, 45 Linwood Ave., that his family construction business, which he said has been in business at that location since at least the late 1960s, should be considered grandfathered under the town’s zoning bylaws.
After a thorough discussion, the board decided to schedule the matter for further consideration on Sept. 25, when DeSimone will be asked to provide more complete information as to the extent of the business that operated there in approximately 1970, before the town’s zoning bylaws changed, and to determine to what extent the business is grandfathered as the applicants have argued.
Three years ago, after numerous hearings, the ZBA issued a home occuption permit for the construction business with numerous conditions attached. And at a hearing last March when the permit came up for renewal, residents of the neighborhood charged many of those conditions had not been lived up to. At that time, however, DeSimone raised the question of whether his business is grandfathered in light of a decision made by the ZBA affecting Smith Plumbing and Heating on the other side of town.
At a May hearing DeSimone presented documentation to support his claim in the form of old business advertisements in the Transcript from 1960, 1968 and 1974 as well as letters from local businesses. In further reviewing the grandfather claim last week, the ZBA was concerned with determining the size of the business that existed there circa 1970, however, because that is the extent that could be considered grandfathered.
Clearly, the board felt, DeSimone has more equipment now than he did in the 1970s. “For example, I don’t think there were Bobcats in 1971,” said member Joe Keyes. And there are a couple of differences from Bill Smith’s appeal on the other side of town because Smith’s operation was actually getting smaller at the location and because it was Smith himself had been in charge of the operation all these years, while the DeSimones are “second generation,” said Keyes.
Another question the ZBA wants to establish is whether both pieces of the DeSimone property were used for the business prior to 1971 and how many square feet were dedicated to the business. “If one of the houses they bought is post 1971, they shouldn’t have the ability to put their stuff on that lot. Very strictly, they should only be able to use what they were grandfathered for. There’s no negotiation around that,” said Keyes.
Reviewing the file, the ZBA members noted DeSimone provided newspaper ads from old newspapers showing the business existed prior to 1971. The question in the members’ minds is the extent of the business at that time. Some ads from 1974 were discounted but others from 1968 and 1960 were considered.
“If you look at all this, nowhere does it (the advertisements) say excavating or heavy machinery, anything like that,” said Keyes. “So if he wants to say he’s grandfathered, it could be a problem for his use of the excavator and Bobcat. If we want to be most favorable, we could say he wouldn’t have had more than one excavator, for instance.”
Building Inspector Jim DeCola said one of the recurring issues with the neighbors is the DeSimones stockpiling of materials on the property. DeSimone had a special permit but it expired. Rather than reapplying for the special permit, he’s arguing the business is grandfathered, DeCola said.
Another issue for the abutters is the “unsightly” appearance of the property and traffic flow, DeCola added.
Keyes said he was bothered by the fact DeSimone knew his special permit was only good for a few years but didn’t reapply to renew it.
Chairman Paul O’Leary pointed out that just because DeSimone argued for special permit at one point doesn’t mean he lost his right to claim grandfathered status. “We have to do what we think is the right thing and put Jim (DeCola) in a position to be able to enforce it.”
In preparation for the next hearing, ZBA member Jennifer Platt said the board has to:
• Confirm the date of the change in the town’s zoning bylaws and when they became effective.
• Establish the extent of the use on Linwood Avenue at that point in time. “If we’re agreeing it was grandfathered, we need to know when and the extent of the use at that point in time because that is what would be permitted.” Anything else would be an expansion of a non-conforming use and would not be permitted, she said. “The applicant needs to provide something more than their verbal testimony.” There has to be some documentation like an equipment list or inventory, who the employees were, pay receipts, she elaborated. “Something to establish the size of the business.”
Platt agreed that’s not an easy thing but that’s the burden on the applicant, she stated.
Keyes agreed. “They need to prove it to us. If they can’t give that to us, it’s not our fault. We need to figure out what’s fair to everyone but it’s their job to tell us,” not our job to tell them.
Home occupation approved
In their only other business Thursday night, the ZBA approved a home occupation permit for Mistie Duarte, 5 Charles St., who makes her own homemade peanut butter.
Duarte has been very successful selling the peanut butter at the Ipswich River Park Farmers Market this summer and has had many repeat customers. She buys the peanuts already ground and creates her own special flavors by adding ingredients like cinnamon raisin and honey. Her application had already been approved by the Board of Health and the ZBA unanimously approved her permit.
