Loading...
HomeMy WebLinkAbout1990-01-25-HEN-min.pdf SELECTMEN' S ADVISORY COMMITTEE ON HEAVY EQUIPMENT Minutes from January 25 1990 Meeting The meeting was called to order at 8 05 p m All members were present In addition William Dailey Selectman and Norman Cohen Townounsel were in attendance The minutes from the December 1989 meeting were read and approved Tom began by reviewing the legal argument against enacting a local bylaw to regulate hours of operation for construction projects in town He stated that the enactment of a bylaw would classify the behavior as criminal Under state statute the maximum penalty for violation of a bylaw is a $300 00 fine Tom pointed out that such a small fine is unlikely to deter contractors from violating the bylaw On the contrary it would likely be more cost-efficient for them to intentionally work before and beyond the prescribed hours and simply pay the daily fines Furthermore Tom believes that by enacting a bylaw we may lose our right to obtain injunctions against consistent violators Under old state common law decisions one cannot obtain an injunction against criminal activity and instead must rely on the fines and/or penalties prescribed for such conduct Accordingly Tom argued that enacting a local bylaw to regulate hours of operation might in effect undermine our ability to curtail such behavior He concluded that the present options available to address this problem (disturbing the peace and nuisance) provide better deterents because they provide for arrest and injunction for recalcitrant offenders Chris agreed with Tom but stressed that the success of the present options available to us depends upon aggressive enforcement by the police Norman believes that a coordinated effort by the local permit-granting authorities to include hours of operation in all permits issued will also help provide effective redress for this problem If a contractor violates the hours of operation listed on his permit we could revoke the permit Norman believes that this would get their attention and compel complaince Joy agreed but pointed out that this approach is under inclusive because not all projects require a permit Norman countered that excessive noise from a project which did not require a permit could be abated under the present disturbing the peace and nuisance laws discussed earlier Jim concurred and added that any project of the magnitude that would create actionable noise would likely require some sort of permit Joy then read pertinent sections of the Lexington Zoning Bylaw which allow the Board of Appeals to restrict hours of operation for certain acvitities (e g sand and gravel removal ) and to assess fines against violators Bill informed us that the Building Commissioner eenforces Board of Appeals permit violations usually in the form of a cease and desist order accompanied by fines until compliance Norman reiterated his support for pressuring permit-granting authorities to insert hours of operation conditions into all permits He believes that the threat of permit revocation will do more to compel compliance with the hours of operation restrictions than a nominal fine imposed pursuant to a local bylaw Joy then polled members regarding a proposed warrant article for a bylaw to address this problem Tom questioned whether we can regulate heavy equipment noise and not other sources of noise Chris believes tht we can treat construction noise differently because of the reasonable anticipation of substantial and continuous noise each major project will produce He added that all forms of noise are already regulated to some extent by virtue of disturbing the peace nuisance and DEQE laws already in existence Bill agreed that disparate treatment for an obvious and inevitable source of noise was legally proper In support of this assertion he pointed out that service station permits have standard noise restrictions inserted by the Board of Appeals Joy wanted to know specifically why a general bylaw would not strengthen our ability to address this problem Betty brought up the all-encompassing bylaw proposed by Joe Marionoat the December 7 1989 meeting and voiced support for it Tom repeated that his legal research indicates that a bylaw might undercut our ability to do more than assess nominal fines against violators Chris then stated that in light of Tom s findings that a local bylaw would possibly undermine our options to address violations he was not presently in support of placing an article on the 1990 Town Meeting Warrant Joy asked Norman and Bill if they would recommend that we proceed with an article or simply continue our research and make a report to the Town Meeting under Article 2 Both Norman and Bill discouraged including an article in the warrant unless we were going to actively pursue it and be able to defend it at Town Meeting Joy stated that a bylaw would allow for proactive enforcement by police rather than the retroactive means presently available (i e a citizen must first complain to police about excessive noise before they can take action) She pointed out that the code enforcement officer and building commissioner are only on duty during the permissible hours of operation for construction (8 .$0 a m - 5 00 p m ) and thus the present "good neighbor" laws and permit conditions regarding hours of operation cannot be enforced in a timely fashion Tom and Bill disagreed stating that the police can respond to complaints under disturbing the peace laws then have a record to give to the building commissioner the following day Revocation of a permit could be done by virtue of the police record of violation Joy then called to a vote the question of putting an article on the 1990 Town Warrant Chris offered a pro forma motion to do so which was seconded by Betty Flynn The committee then voted unanimously (6-0) against placing an hours of operation article on the 1990 Town Warrant Joy informed Norman and Bill that we would continue our research and would report to the selectmen and Town Meeting respectively at a later time Istvan stated that regardless of the source or timing of noise there should be an upper limit on the decibel level that can be produced He proposed a comprehensive noise bylaw which would limit the level of noise produced by any source at any time Committee members were interested in this proposal but agreed that it went beyond the present scope of our charge from the Selectmen The meeting was adjourned at 9 55 p m The next meeting is scheduled for February 1 1990 at 8 00 p m in Room G-I% of the Town Office Building 9