Land Court sides with O’Briens; trucks may run, no more tickets

Kristen O’Brien of GJO, LLC, leaves Southern Berkshire District Courthouse after sharing evidence in her appeal against tickets put on her trucking companies.

GREAT BARRINGTON—The O’Briens have won an important round against the town and aggrieved neighbors in Boston Land Court.

The court handed down an injunction restraining the town from issuing any more tickets to the O’Briens’ trucks.

The Land Court’s ruling also says that the specific trucks owned by the O’Briens will be allowed to continue their operations between the hours of 5:30 a.m. and 8 p.m. on every day of the week except Sunday.

The town is further enjoined and restrained from issuing tickets in accordance with the Zoning Board of Appeals’ cease-and-desist order that had harsher restrictions.

Business owners Gary and Kristen O’Brien say they’re ready for a lengthy legal battle over what trucking activities will be allowed at their property on 11 Roger Road.

The next appearance by representatives for the town and the O’Briens in Land Court will be in June, 2019.

Kristen O’Brien said she was told by her lawyer to expect the proceeding to last at least two years and possibly longer.

O’Brien and town zoning enforcement officer Edwin May appeared before an assistant clerk magistrate, Michael Wallace, at Southern Berkshire District on the morning of October 3, the latest chapter in a long series of legal disputes that predates even the O’Brien’s purchase of the property in 2011.

O’Brien said the injunction leaves her company in a stronger position if the town wants to buy the property: there’s now nothing stopping her business, GJO, LLC, from operating when they please and thereby making more in profits from the property.

“They can bully somebody else,” she said. “Them pushing me into Land Court has worked against them.”

That morning O’Brien was appealing tickets May placed on GJO, LLC, between August 28 and September 17 for a violating the April 30 cease-and-desist order by the town’s zoning board of appeals to stop operating their trucks before 5:30 a.m. or after 8 p.m.

Before the full case is heard next June, Land Court issued an injunction on September 27 that the town could issue no further tickets on the O’Briens while the case was proceeding. O’Brien said that she wanted the tickets (totaling $1375) from before that injunction overturned as well, saying that the town had not given them sufficient notice of two weeks for an appeal.

Neighbors contend that the trucking activities at the 11 Roger Road property wake them up at all hours of the night and constitute an “industrial siege” on their quality of life.
Because the property was used for related businesses before the town was zoned in the 1930s, it’s considered “pre-existing nonconforming” (essentially grandfathered in) and protected from certain restrictions.

The ZBA found in April that the O’Briens’ business has expanded beyond what has historically been at the property to the extent that they have changed in kind no longer should have the protections previous owners received under a 1996 agreement for judgement with the town.

The O’Briens disagree, and appealed that ruling to the higher court.

After months of negotiations, town leaders and the O’Briens came to an agreement under which the town would buy the property for $298,000, but it failed with voters at an August 6 special town meeting.

May told the magistrate Wallace that in a subsequent meeting of the Select Board in executive session on August 14, town leaders told May to resume enforcing the cease-and-desist order the ZBA issued on April 30, which restricts the hours that the O’Briens’ trucks can operate.

Kristen O’Brien said that this soured her standing relationship with town leaders.

“For four and a half months we didn’t get a single ticket based on this ZBA decision… Then it was all of a sudden the townspeople said no so let’s hammer on the O’Briens and give them all these tickets,” O’Brien said.

When Wallace asked May what he thought the ideal resolution would be, May said he still hoped the town could buy the property, but ultimately that’s a decision for elected officials.

“I’m hopeful that the town can see through to buy the property, but I’m not in control of that,” May said.

May continued that the town instructed him to issue tickets while he could and then told him to stop once the injunction from Land Court came down.

O’Brien said recently that she wouldn’t be looking to sell the property for anything less than $350,000, particularly because she said she would need to recuperate the approximately $20,000 that she said it cost her in legal fees the first time the town considered buying it.

O’Brien continued that it looks like this extended legal battle is going to cost the town a more than it would have been to buy the property.

The town had a revolving real estate fund to make the $298,000 purchase that town leaders proposed, which means that it would have not impacted the town’s tax rolls. Legal fees are a different matter.

“It’s easy for them to blame us,” O’Brien said. “I’m used to that.”

O’Brien and the neighbors both have argued that the deal wasn’t properly explained to voters in financial terms.

Wallace, the outside assistant magistrate called to make the case, said he would be arriving at judgement in two weeks, after reviewing documents submitted by both sides. He noted that the zoning situation was a complex one.

“It’s a bit of a hike for me to come out here, but it is beautiful,” Wallace said. “Maybe it’ll be more beautiful in two weeks.”