Locals call for D&R to cease and desist use
Published on March 24th, 1999
STONEHAM, MA - The Town Hall Hearing Room had well exceeded its capacity by the time the three lawyers took to the podium for the continued Board of Selectmen hearing of D&R General Contracting Inc., a business located at 140 Franklin Street.
The issues at hand were A. is the noise that's being produced at the paving company excessive and can it be resolved; B. has the company contributed to the alleged environmental concerns in a nearby brook; C. can the aesthetics of the site be improved for residents; and C. should the site plan even be before the Board of Selectmen.
No final resolution to these matters was gained, however, and the site plan hearing was continued yet again to April 27 at 8 pm.
Cease and desist
Despite this fact, the main agenda of Brook Meadow Condominium residents was made known by their attorney early on in the nearly three hours of debate.
"My clients have asked me to appear in front of you because they are frankly opposed to (D&R) continuing to work out of that site," said Steven Cicatelli. "From a substantive point of view, I guess I question the entire use of the property. It's quite clear that an expansion of use and the scope of use has occurred over time."
Cicatelli explained that, over time, the non-conforming lot had lost whatever grandfather clauses it had been protected by in the past due to this alleged expansion.
"The site is completely overladen with construction vehicles."
Further, Cicatelli contended, the grandfather clause should also be considered null and void due to an alleged hiatus in contracting site's business during the early to mid 1980's. Cicatelli brought forth testimony from a 1985 Board of Appeals meeting when an oil business had made a bid to operate out of 140 Franklin Street. Testimony from two individuals alluded to the fact that, at that time, the contracting usage at the site had stopped. If the usage had stopped for a two year period, Cicatelli concluded, the grandfather clause should have been rescinded.
"This use cannot properly be considered grandfathered. It is not a legal use ... It is not the same site. It has been expanded," he said.
Armed with these allegations, Cicatelli requested that the selectmen forego the site plan hearing and asked the building inspector to issue a cease and desist order on the property.
Festa's involvement
In response to these claims, Michael Festa, state representative for the 35th Middlesex District but speaking as an attorney representing the business owner, said, "D&R Contracting has been put in a position that is very perilous ... My client has, in good faith for 13 years, operated a good construction company
"D&R has been caught in a position where he may be put out of business at that site."
Festa said that, when D & R set up shop in 1986, the owner, Robert Rotondi, was told that he was free and clear to do so. Since that time, Rotondi has built his business and has been a solid supporter of the community.
"I hope there's a fair compromise out there. Everyone is trying to improve conditions on that site.
Unless I'm mistaken, there has never been used cars sold out of that site. As far as I know, there has never been an oil company operating out of that site," he said of allegations which had been put on the table at the first Board of Selectmen meeting. "D & R has been doing what it has been doing for the last 13 years which is running a contracting company."
At this point, Festa alluded the town's possible involvement in the pollution of a stream which runs by the town's former dump, the D&R site and the Brook Meadow complex.
"I do not support and would never condone the pollution of conservation land, but are you, as a public entity, ready to question who has contributed to pollution in the brook?" he asked. "There is the potential in these proceedings to open up the ultimate Pandora's Box."
Board Chairman Al Conti countered by saying later, "If there's any contamination, we're not blaming anybody. If there's pollution and the town is at fault, we'll take the pounding and pay to remedy it. We're not criticizing anybody. We're going to let the facts speak for themselves."
"We're dealing with people's lives here. If the intention is to put him out of business, I cannot take that and my client cannot take that," Festa said/
Attorney for the trust
Charles Houghton, attorney for D&R Realty Trust, owner of the property, explained that Cicatelli's claims are untrue.
He said that contracting companies had existed at the Franklin Street site since soon after the Rotondi family had bought the land in 1912. During the past 87 years, said Houghton, business has been steady at the site and no extended lull in the lot's use has taken place.
The attorney produced pictures and documents showing the capacity of the lot earlier in the century as proof, he said, that the site's use had not increased over time. In fact, due to the recent proceedings, Robert Rotondi had severed his business ties with Festino Fuel and his partner, reducing the current fleet of vehicles at the site by about 20.
Board Chairman Al Conti requested that Houghton produce excise taxes from the early to mid-1980's to prove that the use had not lapsed for the previously mentioned two years. Houghton agreed to do so.
To further support the owner's claim that traffic on the site is not a detriment to Franklin Street, Michael Garvin, a traffic engineer selected by the town and paid for by Rotondi, produced results which showed that at peak hours of operation, the site was responsible for about one percent of Franklin Street traffic.
"We feel this is not a significant amount of vehicles on the street," Garvin concluded. "This is not a major problem on Franklin Street. The actual magnitude of the traffic generated at this site is minimal."
In response to claims that noise at the D&R site was a thorn in the side of residents, Police Chief Eugene Passaro produced documentation of calls received from the Brook Meadow complex over the past 10 years. Of the 720 logged "services" at the complex, only 21 were for noise coming from the contractors.
Passaro also agreed with Garvin's findings saying that in the past 10 years, only 11 accidents have taken place between Stevens Street and the Stoneham High School entrance, the general vicinity of D&R. Of those accidents, none involved a D&R vehicle and none were caused by one, the chief said.
"My client came here at the behest of the board. We came in good faith saying that we had a non-conforming use,"Houghton explained. "I think you've got to look at the whole picture if you're going to be fair about this."
Although the matter was continued to April 27, Rotondi did agree to move his vehicle's out of the Franklin Street lot before the five minute idling mandate had expired, thus relieving the noise complaint that many residents had voiced.
According to Interim Building Inspector Eugene Argiro, a review of the site in response to Cicatelli's claims could take 30 to 60 days.
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