Abutter to ZBA: 'You have jurisdiction' in Wellspring case

By Andrea Ray | Dec 28, 2017
Photo by: Andrea Ray ZBA members David Arancio and Richard Cutler listen to Wellspring Farm abutter Cathy Mendoza explain the reasoning behind her appeal.

Rochester — Wellspring Farm abutter Cathy Mendoza told the Zoning Board of Appeals on December 28 that, the way she saw it, the Zoning Board has jurisdiction in setting more noise regulations on the therapy center.

Wellspring Farm is an equine therapy farm which offers treatment to children with special needs and mental and behavioral issues. In the past, it has faced complaints from Mendoza and other abutters regarding traffic and noise coming from the property.

In 2016, Mendoza filed a complaint that the therapy farm was operating as a commercial use in a residential zone. Building Inspector Jim Buckles upheld the complaint after an inspection of the property. Wellspring Farm owners Jim and Holly Vogel were forced to seek a special permit from the Zoning Board of Appeals in order to continue operating commercially. The Vogels received the special permit from the Planning Board in November, but Mendoza cited ongoing noise issues when she filed an appeal.

In a previous ZBA meeting, Chair Richard Cutler told Mendoza that the ZBA's role was to "decide whether the Planning Board had used due diligence when granting the permit."

Though the hearing was ultimately continued to Thursday, January 4, Mendoza argued on Thursday night that the Zoning Board had the right to set regulations of its own.

“There's some confusion over what the Zoning Board’s role is when an appeal comes back," she said. "I don’t think it’s as simple as deciding whether the Planning Board did their job. You awarded the special permit, it seems you do have the authority to revisit this issue and make any revisions that should be in order for compliance with the state's noise regulations. If the business is not currently compliant...and it’s not possible given the layout for them to comply, then the job certainly isn’t done to satisfy all conditions, so I think it needs to be looked at again.”

“I don’t think that, given the fact that they did what they did and they morphed into a different business than they originally were," she continued, "that that should be the abutters' problem.”

“I asked what you’d recommend," said Kirby Gilmore, "and you said you didn’t know, but possibly a 20-foot buffer with foliage.”

“The abutters asked for a 40-foot buffer zone, because I already knew what it was like to live next to this," Mendoza told him. "The Planning Board said that was excessive. Did you know that the Planning Board would invoke the state's noise regulations?”

“No, because we don’t have any jurisdiction over the Planning Board," Cutler replied. "It is up to us to decide whether they addressed those regulations adequately, even if you don’t agree. Did the Planning Board do due diligence? That’s what we need to look at."

“You do have the right to step back in and impose further conditions," Mendoza said.

“I’ll discuss it with Town Counsel, we’ll decide whether it's correct and whether or not we’ll step back in," Cutler acknowledged.

Goerge Boerger, the Vogel's attorney, vehemently denied that Wellspring was not in compliance with noise requirements.

“We’re absolutely in full compliance," he said. "The Planning Board says that we have to be in compliance...the idea of a car running or someone talking being a noise violation...every property in the Commonwealth would be in violation."

"I haven’t been out there since, but it appears that the fence is 20 feet from the property," said Planning Board member Gary Florindo, who was at the meeting. "I don’t live there, I don’t know how sound travels. [Mendoza] lives there, she’s offering what happens. I can only offer that we did visit numerous times and tried to use good judgment to make it work and make it fit. As far as discussing it further, I think what we should do is get [Town Counsel] Blair Bailey, [Town Planner] Steve Starrett and [Planning Board Chair] Arnie Johnson in for the next meeting. I would much rather see a larger amount of people from the Planning Board so we can have more input and give [Mendoza] a fair shot. [Bailey] should be working for both parties.”

"What you’re hearing is totally inaccurate," said Jim Vogel, referring to Mendoza's noise complaints. " I invite you all to see us. I’d like to present a clear picture.”

“[Starrett] has been in the area frequently, so I think he’s a fair party for both," said Cutler. "I’d like to hear his input directly.”

"I would welcome that," Vogel told him.

 

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