On 15 December 2021 the lawless Simpson cronies constituting the Sterling Select Board/Earth Removal Board conducted an illegal hearing into Simpson’s illegal earth removal permit application and rendered an illegal decision. You can view the entire crony clown show streamed here:
Simpson walked into the hearing WITHOUT a building permit for 68 Heywood Road, so that fact rendered his ‘earth removal’ permit application an application to conduct illegal “Quarrying or Mining” there. The passage of 2021 Annual Town Meeting Warrant Article 48 now PROHIBITS “Quarrying or Mining” on that parcel zoned “Rural Residential & Farming.” My 14 December 2021 letter, emailed to each Select Board/Earth Removal Board member, set forth below, explained their lack of jurisdiction over Simpson’s illegal application–
P.O. Box 1149
Sterling, MA 01564-1149
14 December 2021
Select Board/Earth Removal Board
Municipal Building
1 Park Street
Sterling, MA 01564
RE: Sterling Select Board/Earth Removal Board Has No Jurisdiction Over Simpson’s 68 Heywood Road Earth Removal Permit Application Because The Passage Of 2021 Sterling Annual Town Meeting Warrant Article 48 REPEALED Subsection 6.2.2.2.a.4., The Earth Removal ‘Use Variance’ Exception/Loophole To The Sterling Protective (Zoning) By-Law
Dear Select Board/Earth Removal Board Members,
Massachusetts General Laws Ch. 40A, Sec. 10 provides in pertinent part that:
“The permit granting authority [Sterling Zoning Board of Appeals] shall have
the power after public hearing…to grant…with respect to particular land…a
variance from the terms of the applicable zoning ordinance or by-law…where
such permit granting authority specifically finds that owing to circumstances
relating to soil conditions, shape, or topography of such land…a literal
enforcement of the…by-law would involve substantial hardship…to the
petitioner…Except where local…by-laws shall expressly permit variances for
use, no variance may authorize a use or activity not otherwise permitted in the
district in which the land is located…”(emphasis added).
Former Sterling Zoning By-Law subsection 6.2.2.2.a.4. was a use variance exception/ loophole to the Sterling Protective (Zoning) By-Law that authorized the Sterling Zoning Board of Appeals, in certain circumstances, to grant earth removal (now “quarrying or mining”) use variances in Sterling areas zoned Rural Residential & Farming and Neighborhood Residential. That subsection 6.2.2.2.a.4. use variance exception/loophole was repealed by Warrant Article 48 which passed during the 2021 Sterling Annual Town Meeting. Article 48 now OUTRIGHT PROHIBITS “Quarrying or Mining” in ALL areas of Sterling zoned Rural Residential & Farming and Neighborhood Residential. That being so, the Sterling Select Board has NO JURISDICTION WHATSOEVER OVER SIMPSON’S 68 HEYWOOD ROAD EARTH REMOVAL PERMIT APPLICATION BECAUSE “QUARRYING OR MINING” AS A “USE” IS NOW OUTRIGHT PROHIBITED IN THE ZONE WHERE THE 68 HEYWOOD ROAD PROPERTY IS LOCATED. SIMPSON’S EARTH REMOVAL PERMIT APPLICATION MUST BE REJECTED AS A MATTER OF LAW.
Sincerely,
James F. Gettens, Esq.
The repealed Sterling Protective (Zoning) By-Law subsection 6.2.2.2.a.4 read in pertinent part:
“in RR or NR Districts, no soil shall be removed from the premises except to facilitate grading for a proposed building for which a variance or a building permit has been granted…Removal of less than 1000 cubic yards of soil from any premises does not require a variance…Removal of soil in an amount greater than or equal to 1000 cubic yards does require a variance…(emphasis added).
Sterling Annual Town Meeting Warrant Article 48, passed in June 2021, repealing that subsection 6.2.2.2.a.4. and amending the Sterling Protective (Zoning) By-Law, PROVIDES:
“Quarrying or Mining shall mean earth removal for the purposes of extracting soil, loam, sand, gravel, clay, rocks, minerals, or other earth material, including establishments engaged in operating sand and gravel pits and in washing, screening, or preparing sand and gravel for construction or industrial uses, but excluding grading of a lot in preparation for the construction of a structure or associated appurtenances for which a building permit or other similar permit has been issued by the town” (emphasis original and added).
Warrant Article 48 defined “Quarrying or Mining” as a Principal Use and PROHIBITED it in all Sterling areas zoned Rural Residential & Farming and Neighborhood Residential.
SEE Warrant Article 48 here–
NOTE: In passing Warrant Article 48 Sterling’s Townspeople DID NOT APPROVE in areas zoned Rural Residential & Farming and Neighborhood Residential “remov[al]” “of soil…from the premises…to facilitate grading for a proposed building” as they had previously when they approved now-repealed Zoning By-Law subsection 6.2.2.2.a.4.
THIS TIME, when it comes to lot grading, it is clear that THE TOWNSPEOPLE ONLY APPROVED “earth removal” WITHIN AND ON THE LOT ITSELF for “grading of a lot in preparation for the construction of a structure or associated appurtenances for which a building permit or other similar permit has been issued by the town.”
Warrant Article 48 DOES NOT provide for the removal of soil “from the premises…to facilitate grading for a proposed building.”
Since Simpson did not possess a building permit on 15 December 2021 the Select Board/Earth Removal Board had absolutely no jurisdiction or authority to entertain Simpson’s earth removal permit application. Further, given Article 48’s language in comparison with the language of now-repealed subsection 6.2.2.2.a.4., the Select Board/Earth Removal Board acted illegally in agreeing to issue Simpson an earth removal permit, with conditions, to remove sand or sand & gravel from the 68 Heywood Road lot itself.
In view of the foregoing, the 68 Heywood Road abutters should pool their resources, hire a good trial lawyer, AND SUE THE ROGUE SELECT BOARD’S/EARTH REMOVAL BOARD’S MEMBERS’ ASSES OFF IN THE WORCESTER SUPERIOR COURT. ESTABLISHING A “GO FUND ME” LITIGATION FUND FOR THAT PURPOSE WOULD BE A BOON. I WOULD DONATE TO SUCH A LITIGATION FUND IN A HEARTBEAT, AND OTHER STERLING CITIZENS WOULD DONATE TOO.
UPDATE, 17 DECEMBER 2021: The following is someone else’s view of what Simpson, STERLING’S BIGGEST SNAKE (MORE ACCURATELY–“PUNK-SNAKE”) will get away with, and what the long-term consequences of what his Select Board/Earth Removal Board cronies’ (Cranson and Kilcoyne are entirely up “PUNK-SNAKE” Simpson’s A$$) actions will be following their 15 December 2021 abominations. I decided to share this with you even though my my legal analysis, set forth above, does not parallel this writer’s and the writer left out some important distinctions and prerequisites, such as a developer needing to obtain a building permit–probably a sham in the end– in order to claim the need for massive ‘grading’ of a lot in an RR or NR zone. This was emailed to me and, so, I put it within quotation marks. I do not know the writer’s name but assuredly share his or her outrage–
“Last night, the select board granted tentative approval on an earth removal project under the new bylaw adopted at the 2021 ATM. Voters at the ATM also approved the elimination of a variance protection from the town’s protective bylaws. No longer does anyone need to go before the ZBA to remove more than 1000 yd.³ of soil from a site. It is solely under the purview of the select board. Based on the tentative decision, and according to a permit to be issued by the select board, 19,000 yd.³, including the first 1,000 yd.³ that have already been removed, can be removed from an excavation site of about 1.2 acres (according to the application). By way of example, 18,000 yd.³ is enough to cover a football field 10 feet deep, or all the way up to the crossbar of the field goal. The select board said that it does not set precedent, but it does. Imagine extrapolating this permit to a larger site. A 5 acre site could remove up to 100,000 yd.³. A 20 acre site could remove up to 400,000 yd.³. We are going to end up with a number of short term commercial mining operations throughout town as a result of these changes, because Sterling sits on a lot of sand and gravel that is valuable to developers, to be mined and sold in the open market. These operations can take place anywhere in residential zones. This decision eviscerates the zoning bylaw that says that mining operations cannot take place in residential zones. Whether a commercial mining operation is short term or long term doesn’t matter. Developers will have the ability to level large tracts of land all the way down to street level before building houses.”
J.G.
STERLING, MASSACHUSETTS, OVERWATCH 