ZBA grants Ken’s Foods 24×7 approval with conditions

Above: What noises should be expected when living near an industrial property like the former Nynex/Verizon building was a point of contention at this week’s ZBA meeting. (Image from Google Maps)

This week, Ken’s Foods returned to the Zoning Board of Appeals for clarification on their special permit.

The business requested permission to operate on a 24 hour, 7 day per week basis. In a public hearing, neighbors continued to argue that the business is already too loud and disruptive to their lives.

The ZBA voted to approve the hours based on restrictions to reduce noise that they hope will improve the situation for neighbors.

The effectiveness of the restrictions may be determined by Massachusetts Department of Environmental Protection down the road.

During the public hearing several neighbors were up in arms over noises that they say have disrupted their lives. They argued the applicants promises were full of unacceptable hypotheticals.

Chair Leo Bartolini informed abutters that they took on the risk when they moved into a neighborhood pressed up against an industrial zone.

According to Bartolini, the laws support businesses right to operate 24 hours in that location. He claimed to have read six similar court cases from the past seven years with court rulings in favor of the applicants.

One neighbor, Mike Deneen, accused the Chair of placing the business interests above the residents’. 

“Your colleagues on the board have been asking questions and have actually appeared as if they’re interested in hearing our feedback throughout this process and you have not . . .

All your other comments have indicated you’re on their side you’re going to approve this regardless and you really don’t care about her feedback”

Bartolini objected, “I’m the one who mandated they do the wall and fix the pavement and do all these issues.”

He furthered, Southborough doesn’t have noise ordinances. Because of that, there is no current standing to bring in MassDEP to enforce sound restrictions.

Once required sound barriers are installed, Bartolini claimed that residents have the right to file a noise complaint within two days. That would trigger the Building Inspector bringing in MassDEP.

That agency has power to force the business to comply with their findings and requirements.

The biggest area of contention between neighbors and the business is noises at the delivery bay doors in the rear of the building. According to some abutters, the moving of those doors to the front of the building would alleviate most issues.

Arguing for the applicant, William Pezzoni said his client would like to do that eventually, but couldn’t commit.

Instead, he offered that if that didn’t commence within 2-3 years of ZBA approval they could have further sound testing pursued to comply with MassDEP noise policy, with required changes implemented within 3 months.

He said that management also reversed its decision to wait for 24/7 approval before paving. The paving and a sound barrier at the F doors would be done regardless.

In summing up, he believed neighbors would be happy “in the long run”.

Neighbors wanted the doors moved before hours of operation were extended. There was also concern about sounds at the staging area.

In arguing their cases, attorneys clashed over the special permit’s legitimacy.

Pezzoni argued that the original special permit to Nynex for the facility didn’t restrict normal hours of operation. He said the hours were just listed as general information and not a condition.

On the other end of the spectrum, Attorney Doug Resnick (representing some abutters) argued that the special permit shouldn’t have transferred to the new owner.

Resnick claimed Ken’s should have applied for a new permit. That would have forced the ZBA to conduct a balance test between town and neighborhood needs.

Bartolini stated that determination is made by the Building Inspector. And Pezzoni stated that it the transferred special permit was approved by two Building Inspectors and town counsel.

After closing the public hearing, the board worked through legal restrictions to give neighbors relief sooner than 2-3 years. Their approved restrictions:

• 24 hour/7 day operations can’t commence until the driveway improvements are completed, the sound barrier wall around the rear “F” doors in, and they install a dense line of trees around the staging area.
• Other promised mitigation efforts must be made (e.g. speed limit signs, no cell phones allowed for the drivers, moving cell phones, no long idling, and rules enforced by security or night shift supervisor)
• If in six months, they aren’t meeting MassDEP sound standards, they will be obligated to either install a second sound barrier back of the staging area or commit to moving the F doors to the front of the building and shifting the sound barrier wall over to the staging area within another six months.
• If they reconfigure the interior of the building or renovate for automation, they will need to move the F doors to the front of the building (pending proper permitting).

Both the applicant and neighbors have the right to appeal the ruling.