Published in the July 18, 2018 edition

By DAN TOMASELLO

LYNNFIELD — A contentious dispute between Boston Clear Water Company and four abutters is back in front of the Zoning Board of Appeals.

Residents Mary Bliss, Andrew Gallucci, Willis O’Brien and John Sievers filed a petition requesting the ZBA to overturn Building Inspector Jack Roberto’s decision not to enforce three complaints against Boston Clear Water Company (BCWC), 165 Lowell St. Roberto said in a letter to the petitioners that he was “not convinced of the correctness” of the petitioners’ complaints.

Atty. Jason Kimball gave an overview of the three different complaints during the ZBA’s July 10 meeting. Under the first complaint, Kimball argued Boston Clear Water Company is “unlawfully practicing a commercial use in a residential district (Single Residence C District).”

“There is insufficient evidence to establish that a lawful preexisting non-conforming commercial use ever existed,” said Kimball in the complaint.

In the second complaint, Kimball argued that commercial activity was not lawfully permitted at the 165 Lowell St. property “as a lawful preexisting non-conforming use prior to the adoption of zoning in Lynnfield” in 1928. He said the ZBA never provided the company relief and “therefore is not protected from zoning enforcement as a lawful preexisting non-conforming use.”

Kimball stated in the third complaint that the 165 Lowell St. property was not used for a two-year period prior to Boston Clear Water’s principal owner, Anthony Gattineri, purchasing the property from the LeColst family. The LeColst family previously owned Pocahontas Spring Water.

“Therefore, the use is no longer lawful and is not protected from zoning enforcement as a lawful preexisting non-conforming use nor can the use of the property revert to commercial,” said Kimball.

Kimball said the petitioners want the ZBA to order Boston Clear Water Company to “immediately and forever cease and desist from all commercial use and related activity.” He also said the petitioners want BCWC to “remove all tangible commercial items and vehicles” from the property.

Additionally, Kimball said the petitioners want the ZBA to “order the immediate demolition and removal of all commercial structures and debris at 165 Lowell St.” He said the petitioners also want the ZBA to “provide any further relief and issue any and all other orders and remedies the board may deem appropriate and necessary to forever stop, enjoin and remedy all of Boston Clear Water’s ongoing zoning violations.”

Kimball argued that the LeColst family leased the property from its former owner, the Smith family, in 1961 and established Pocahontas Spring Water. He said the LeColst family did not receive “any specific permits or zoning authorization” before establishing the defunct water company.

“Sometime in the late 1960’s, again without any permits or zoning authorization, Mr. LeColst expanded the commercial use of the property by installing a self-serve water filling station,” said Kimball. “Mr. LeColst did not seek or obtain zoning relief relative to this expansion of the prior commercial use.”

Kimball noted the LeColst family “had a friendly and respectful relationship with the abutters and the surrounding neighborhoods” while they owned Pocahontas Spring Water. However, he said the LeColst family encountered some difficult challenges several years ago.

“On March 29, 2012, after several site visits and water quality sampling by MassDEP (Massachusetts Department of Environmental Protection), the LeColst family voluntarily terminated the bottle water operation at the property because pH levels in the test samples violated the Massachusetts water quality standard for pH,” said Kimball. “On April 30, 2013, Mr. LeColst spoke to MassDEP via phone and stated that the water vending operation on the property was closed. Pocahontas was only selling water that has been bottled at an off-site facility. Clearly, this is a change in the use from the previous use without any specific permits or zoning authorization.”

Kimball said LeColst “requested that MassDEP declare the public water supply on the property as an inactive state for one year until he arrived at a final decision” about the business’ future. Kimball noted Boston Clear Water purchased the property in the spring of 2014.

“At the time of Boston Clear Water’s purchase, two years had already passed since Pocahontas ceased to bottle water on the property,” said Kimball.

Kimball said, “There is insufficient evidence to find a lawful preexisting non-conforming use ever existed on the property.”

“The off-site sales use and on-site sales use were never protected as pre-existing non-conforming uses, therefore the current Lynnfield Zoning Bylaw shall apply to all uses and structures on the property,” said Kimball.

Kimball said BCWC has had a negative impact on the petitioners’ quality of life.

“Having commercial customers drive their vehicles through a residential neighborhood, park on the property and fill bottles with water produces an accompanying increase in traffic and noise that clearly has a substantially more detrimental effect on the neighborhood than the alleged preexisting non-conforming use,” said Kimball.

In response to a question from Kimball, Lowell Street resident John Sievers said he enjoyed “a last drink from the spring” with LeColst, former Centre Congregational Church Rev. Dr. Dennis Bailey and John Smith in the spring of 2012.

BCWC blasts petition

Atty. Brian McGrail said the petition against Boston Clear Water Company should be dismissed.

“What is being asked of the board is to close up a business that has been in the town for over a century,” said McGrail. “That is what the folks who live next to it are asking the board to do. This isn’t a burgeoning facility with flashing lights like a supermarket. It’s a historical gem in your town.”

McGrail said he requested that the case be discussed at the ZBA’s August meeting instead of the July 10 meeting in order to give himself and Atty. Julie Connolly more time to review the documents Kimball submitted and prepare counterarguments.

“That request was not accommodated, so I had to cancel my vacation to deal with this while my family went on vacation,” said McGrail.

McGrail said Boston Clear Water is “not a party to this matter” because the petitioners were appealing a decision made by the building inspector.

“The reason why we are here is a decision will impact Boston Clear Water,” said McGrail. “In fact, Boston Clear Water’s entire existence is in jeopardy based on the decision the board makes.”

McGrail said the commercial spring has always been located in close proximity to the petitioners’ homes. He said Gattineri purchased the property in order to “protect and preserve the public water supply.”

“Mr. Gattineri looks at himself as a steward and protector of this natural resource,” said McGrail.

McGrail argued the petitioners’ “are procedurally barred” from bringing the matter to the ZBA since the four petitioners’ filed a similar complaint last year that was subsequently withdrawn. He said Roberto declined enforcing last year’s request as well.

“Lynnfield Town Counsel (Tom Mullen) advised the board that it lacked jurisdiction in the petitioners’ appeal,” said McGrail. “Town counsel determined the appeal was ‘fatally flawed’ because it failed to identify the order or decision of the building inspector that was being appealed and the grounds for the appeal.”

McGrail noted the petitioners withdrew their appeal last November “without prejudice.”

“When the petitioners’ withdrew their application, they did so at their own peril because there is a 30-day window to appeal a building inspector’s decision,” said McGrail. “They need to do that procedurally correct(ly) and if they don’t meet that 30-day requirement, they lose that right to appeal.”

McGrail said the petitioners’ requests should be denied because the site is a public water supply that is allowed by the Zoning Bylaw.

“Even if the petition is determined not to be procedurally barred, we respectfully request the board to dismiss the petition because the site is an operating public water supply,” said McGrail.

McGrail said the property is a “recognized public water supply” that complies with state regulations. He said the property was never abandoned when the LeColst family owned Pocahontas Spring Water.

Atty. Julie Connolly said the LeColst family was struggling to comply with regulations established by the Board of Health and MassDEP several years ago. While Connolly said “bottling operations” ended in March 2012, she said MassDEP certified the spring as a public water supply in June 2012.

“To say it stopped is not accurate,” added McGrail.

ZBA continues case

After Kimball and McGrail concluded their lengthy presentations, the ZBA voted to continue the matter to its August meeting.

“This is an important matter before the board,” said ZBA member Anthony Moccia.