Zoning board denies request by Gulbankian family to modify conditions

by susan on May 30, 2013

Saying they felt “duped” by the family, the Zoning Board of Appeals last night denied a request by the Gulbankian family to modify conditions imposed in a 2011 ruling. The family had asked the board to remove the requirement to pave a portion of their Mt. Vickery Road property and install a drainage system, saying the changes were expensive and unnecessary.

An attorney for the Gulbankian family said last night their appeal to remove five of the 15 conditions ordered by the board was based on the argument that the ZBA exceeded its authority in imposing them. Chairman Matt Hurley said that claim was previously addressed when the family appealed to the Worcester Superior Court. The court upheld the ZBA’s ruling in June 2012, and a subsequent appeal by the family was eventually dropped.

The Gulbankian’s attorney argued that regardless of what the court decided, the ZBA has the authority to revisit and modify any of its past decisions, but the board did not agree.

“Your recent arguments are not based on any new information,” Hurley told the family at last night’s hearing. “It is the same exact issue the applicant brought to the Superior Court’s attention and lost on. There is a school of thought that we shouldn’t even be entertaining this issue because it’s not new at all.”

After losing their court battle, the Gulbankians went before the ZBA in December 2012 to ask for more time to complete the ordered work. The board granted the request, plus tacked on an extra month, to give the family until May 31, 2013 to comply with the conditions of the ruling.

“We granted the extension in good faith that they actually intended to do the work,” Hurley said last night. “Frankly, I feel a bit duped in having done that. Now what we’re hearing is not that something has changed, but that the original decision made by the ZBA was wrong and should be disposed of.”

“I’m very personally disappointed that you waited until the day before the deadline to bring this before the board,” ZBA member Leo Bartolini said. “It’s just not right.”

The Gulbankian family has complied with most of the conditions imposed by the board, including those relating to landscaping and general clean-up, but has said it would cost $200K to pave the lot and install a drainage system, an expense they say they cannot afford.

“I’m not unsympathetic to that point…but these are the same requirements we would impose on anyone,” Hurley said. “We’re not asking them to do anything different than we would ask any other commercial tenant of Southborough to do.”

The ZBA has faced harsh criticism from the public for its handling of the application, with many characterizing the process and ultimate ruling as unfair to the Gulbankian family, which has been operating businesses in town since 1965.

The saga over the Gulbankian’s property, on which they operate a garden center, school bus parking lot, and automobile machine shop, dates back to 2010 when abutters complained about noise and other issues. In response, the Gulbankian family filed for a variance and a special permit to continue operating the machine shop on their property.

Calling a variance “the highest form of zoning relief and the toughest to get,” Hurley said the board had limited options on how to handle the request.

Hurley said if the request was approved outright, the board felt the decision would almost certainly be appealed by neighbors and that they would likely prevail. Not wanting to reject the family’s request, the board instead decided to approve it with conditions. Given that the board ruled to grant the zoning relief the family requested, Hurley said he was “very surprised” when the family took the town to court.

“It was a very difficult decision, I assure you. It was the most difficult decision of my time on the board,” Hurley said of the 2011 ruling. “We knew we were going to be criticized no matter what we did.”

Several residents spoke at the hearing in support of the Gulbankian family, saying the conditions were unnecessary and do not offer any benefit to the town.

With the ZBA’s unanimous vote last night to deny the request to modify the conditions, the Gulbankian family has until tomorrow to comply with the order. After that point, the town’s zoning enforcement officer, Building Inspector David Gusmini, will decide what to do next. Options include a cease and desist order against the machine shop and possible fines.

1 Capeesq May 30, 2013 at 9:09 PM

Another reminder of why I moved out of Southborough. They have been there forever, apparently the people who move in want the town the way they want it and not the way it is.

2 JM May 31, 2013 at 8:47 AM

Thank you, ZBA. You acted reasonably and in accordance with the laws of the Commonwealth of Massachusetts. Basing a decision on the longevity of one’s residency is small town politics at its absolute worst.

3 A Matter of Law May 31, 2013 at 10:51 AM

Exactly! People are being completely unreasonable about this situation. The requirements imposed by the ZBA are state law. Not only would thr ZBA allowing the Gulbankians to ignore the law be a dangerous precedent for future business zoning and variances but abutters who are stil unhappy with the “goings on” on the Gulbankian property could easily appeal the ZBA and would almost assuredly win the appeal. This would not help the Gulbankians at all and would cost our town a fortune in legal costs.

The bottom line is that it doesn’t matter how long you have lived in town or how much people like you. The law calls for certain measures to protect the water supply and you are bound by those laws. The Gulbankians can either stop conducting the buiness that generates pollution or they can make the improvements. The legal expenses they have incurred these past four years or more would have gone a long way to making the changes and they should just get on with it already. In my opinion, they have been getting extremely poor legal advice and have wasted a ton of money on this fight.

4 JO May 31, 2013 at 10:01 AM

Totally unfair to expect a small family owned business to incur such an expense. Shame on the town for forgetting what’s most important, our community. Meanwhile we are are over developing apartments and 40b straining the schools and infrastructure and ZBA has no answer.

5 A Matter of Law May 31, 2013 at 10:55 AM

The ZBA in this case and in the case of 40B projects you mention, are doing what they are sworn to do – upholding and enforcing the law. If any of us doesn’t like it there is only one thing to be done. Go about the effort of changing the law.

If they can’t afford to make improvements to their property to safely conduct the business they have chosen, then they should NOT be conducting that type of business. PERIOD.

6 C.T. Vermes June 13, 2013 at 2:44 PM

Dear Matter of Law,
With your strict knowledge of law, and it’s implementation, then I am sure you have never traveled a highway faster than 66 mph? If so, you have violated the law, and should be banned from driving.
I’m sure that if you snore, you do so and comply with the Mass Snoring law ” Snoring is prohibited unless all bedroom windows are closed and securely locked.”
And keeping with the law, “All men must carry a rifle to church on Sunday” (still in effect) .
I’m sure that you are aware of other Massachusetts laws:
It is illegal to go to bed without first having a full bath.
No gorilla is allowed in the back seat of any car.
At a wake, mourners may eat no more than three sandwiches.
And of course “A woman can not be on top in sexual activities.”
These and others, are current laws in Massachusetts.
Since you are an expert on the Law, and strongly enforce it, does your house have a 4 Imperial Gallon leather bucket embossed with your family crest that the law requires Mass residents to have to participating in bucket brigades?

7 Tim Martel May 31, 2013 at 11:51 AM

The problem is that the Gulbankian’s battle took place in a judicial setting, where the rule of law cannot be ignored. The ZBA acted as they should have acted.

However, if the family chooses to place an article on the warrant before Town Meeting (which is legislative), they can change the zoning law for their lot by winning a 2/3rd majority vote. I’m sure there are people in town who would be happy to help them in this matter, including myself.

8 Bruce May 31, 2013 at 11:06 AM

How does running or not running the machine shop affect the ability for buses to keep parking there?

Are these all Southborough school buses?
If so, and the buses can’t be parked there – where will they be able to park?
Will such a change mean more expense and delay or less safety for our kids who use the buses?

Thanks.

9 Tim Martel May 31, 2013 at 11:46 AM

My understanding is that this decision affects only the machine shop. The farm stand, garden shop, and bus lot will remain as-is.

10 earl May 31, 2013 at 1:19 PM

From the MetroWest Daily News (5/31/2013):

The Gulbankians – whose family has lived in town for nearly 100 years – operate a flower shop, farm stand, machine shop and bus storage facility at 40 Mount Vickery Road. After neighbors at the Mount Vickery Hills Condominiums complained about the bus parking a few years ago, the town discovered the family didn’t have a valid permit for its J&M Machine Co. shop.

The family had a permit to repair bus engines that was granted along with the bus storage variance decades ago, Hurley said. But J&M Machine Co. also repairs antique car and other engines, which, the ZBA concluded, required a separate permit to allow it to run four businesses in a residential zone.

As part of granting that permit, the town set a number of site changes based on concerns of neighbors which the family has said would cost it upwards of $200,000. The Gulbankians appealed the decision in Worcester Superior Court but lost.

The family had a permit to repair bus engines, and NOT antique car and other engines in the machine shop.

When the neighbors complained about the bus lot being used again as a bus lot, the unpermitted use of the machine shop became the wedge issue that appears to have led to the required “site changes” including the paving and the drainage system for the bus lot.

The path not taken would have been to conclude that there was no material difference between the permitted use (bus engine repair) and the unpermitted use (repairing antique car engines).

It’s a shame the original application from way back specified “bus” and not “vehicle engines”.

I’d really like to believe that there’s some other meaningful set of facts that have not been reported on that would change my admittedly simple understanding of this situation.

11 earl May 31, 2013 at 1:20 PM

As it relates to enforcing and complying with the current environmental standards:

How quickly things can change when the “shoe is on the other foot”. Back in 2011 our BOS seems to have taken the position that we can ignore similar requirements when they provide “little to no benefit to the environment”.

http://www.mysouthborough.com/2011/03/01/two-things-that-could-impact-southborough%E2%80%99s-budget-and-not-for-the-better/
Selectmen: New EPA regulations would cost Southborough millions

The US Environmental Protection Agency is considering new stormwater regulations that Selectmen say could cost the town nearly $3M over the next five years. Selectmen recently sent the EPA a letter strongly opposing the proposed regulations, saying they are “needless, costly and provide little to no benefit to the environment.”

The EPA is collecting feedback from municipalities and is expected to make a decision sometime after March 11. If they decide to approve the regulations, it could impact the upcoming budget cycle.

12 C.T. Vermes June 15, 2013 at 10:19 AM

J&M has a permit to repair bus engines. As an antique car owner, I can say that almost every type of the engines they work on, has at some point been used to power a bus. I have see busses with Model T, Model A, Packard, and even Rolls Royce engines. I believe that the proof must fall on the ZBA to prove that an engine they worked on has never been utilized to power a bus, despite it’s current utilization.

13 Roy Palmer May 31, 2013 at 6:20 PM

Yes, Earl has a good point here.

And what is the difference between fixing a bus engine and an antique engine, nothing. Except that a bus engine is much larger.

What is the concern here? Has there ever been any facts, which could conceivably cause harm to the town, shown or proven by anyone? I drive by the area frequently and don’t see anything disturbing nor do I hear any noise, other than when the buses leave to pick up children. And that noise is not offensive by any means.

I don’t think the Gulbankians are flaunting the law and feel they have a right to do what they choose simply because they have been there a hundred years. No, it seems they simply cannot afford the changes needed to satisfy the town. Its outrageous to think that the Gulbankians try to “dupe” the board by not doing anything or exactly what the board wanted them to do.

Did the board ever consider that the Gulbankians may have indeed spent many months trying to see if they could actually raise the money for the improvements requested but failed? That would hardly be duping anyone.

Now that would be a very sad statement . Here is , I imagine, a very hard working family. I myself have seen an elderly man, Mr. Gulbankian I was told, a man in his 80’s, loading a truck to deliver his flowers. I have heard that his boys are also very hardworking and do very hard and intensive physical work.

So now, despite the fact no one has shown any threat to the community from the Gulbankians, they are to be put out of business by a technicality? Some may speak of the law but this certainly is not justice. In fact much of his smacks of snob zoning. Not much more than that I fear. The board ,in my view , has done a shameful thing. Having been treated so harshly, you might think that Gulbankians were running a dangerous nuclear facility or an unseemly strip club as opposed to legitimate and long standing businesses.

14 robert pratt May 31, 2013 at 10:25 PM

THE TOWN OF SOUTHBORO SHOULD BE A SHAMED FOR PUTTING THE GULBANKIANS THROUGH WHAT THEY ARE DONING THEY WERE THERE BEFORE THE CONDOS WAKE UP PEOPLE THEY ARE TRYING TO MAKE A LIVING GIVE THEM A BREAK GOD BLESS AMERICA I HOPE TIMES ARE TOUGH ENOUGH WEAK UP PEOPLE

15 Louis Gennari May 31, 2013 at 11:27 PM

I agree with Roy. This smells of snob zoning or something even worse. It aint pretty enough for the condo dwellers. Just bull and the boards of Southboro should be ashamed of what they have done and let happen. Let’s drive hardworking long standing citizens and good families of Southboro into bankruptcy and major distress.

I hope they take this to the national press. Someone call O’Reilly. This was an impossible situation from the start. The boards offered , in essence a phony variance. Why should the condo dwellers be considered when they knew those businesses existed there before they bought the condos? A friend of mine owns one. He said the fact of those businesses was even in the deed. So the boards offer a variance with conditions knowing very well that the Gulbankians could never afford the improvements they demanded. A sham of a condition.

And why all of this? For what? Something could not have been worked out without such a hardship on the Gulbankiians and at the same time satisfy the town?

A suspicious person might think that someone wants the Gulbankians property and that they are being railroaded and forced off their ancestral homestead deliberately. I guess we look forward some new developer and another strip mall on the Gulbankian property where we can buy over priced coffee and the hell with the families we have ruined…

16 Joe June 1, 2013 at 9:00 AM

What good wil it do by shutting them down ? They pay taxes that help pay the fools on the board. Have they no common sense what so ever ? These people are true craftsmen and are just trying to make a living. What happened to the so called American Dream ?

17 Todd Amelang June 1, 2013 at 8:19 PM

Roy and Earl seem to have outlined this issue very clearly and objectively.

The Gulbankians clearly seem to be good, hardworking, honest people with a good reputation in the community as neighbors and business people, the BOS and the ZBA need to modify their position and work with these folks.

Paved parking lots and drainage pipes are not safety issues, and in many cases they are not environmental assets. Generally, the Conservation Commission asks that asphalt be removed and replaced with a permeable surface, (like the gravel currently there), to better serve the environment.

The necessity for another permit also seems to have been a mistake. If the Gulbankians can legally repair bus engines, their current permit simply needs to be changed to say “engines”. The ZBA and/or the BOS have the authority to take this simple action and resolve this issue permanently. I wonder, is it legal for the Gulbankians to repair antique bus engines? I expect it is, simply because the word “bus” is used, a ridiculous technicality.

It is a shame when people use and twist their Towns regulations, bylaws, and public officials, to pursue their own personal agendas when those rules were established, in essence, to prevent just that type of abuse.

18 Greg K June 2, 2013 at 3:34 PM

Though I view this turn of events and treatment of the Gulbankians as callous,unfair and one which shows the Town of Southboro in a questionable light, how about this as a remedy for this situation?

Why doesn’t the town of Southborough give the Gulbankians a low interest loan and have their highway department do the work for a price the Gulbankians can handle.

That way the town gives out a loan and the money goes to the town for the work as well.

It is entirely possible that those private contractors quotes to the Gulbankians were high and out of line and that the town could do the job for far less. The town would make interest on the money as well.

19 Maria Balfour June 2, 2013 at 6:33 PM

That’s a brilliant plan Greg K. The town makes money two different ways and the Gulbankians survive. It is both fair and reasonable and makes good sense. Why didn’t someone think of this before all this went down this bad road?

Nevertheless it seems that good sense has not prevailed all along in this matter and is not likely to prevail now……

20 Michael Cruz June 3, 2013 at 6:35 AM

Yes, let the board put up or shut up. Let them reveal themselves by not offering this deal Greg K has suggested. it’s a good one..If they dont, I think we know they had some sort of agenda…

Although they have been so insensitive to the Gulbankians , I hope some top tier lawyer from Boston will decide to take the case pro bono and tie this up in court for the next ten years. Let the town foot the bill to fight the Gulbankians,it would serve them right. Just disgraceful actions by the town leaders of Southboro…

21 Bupters June 3, 2013 at 10:01 AM

Agreed, Michael. It would be great if an excellent lawyer would take this on pro bono. I’ve wished that myself. At the meeting the other night, I watched as the members of the ZBA expressed their mock outrage at having been “duped.” It would have been funny if the situation didn’t have such import for the Gulbankians. If we can’t get a lawyer to work pro bono, how about the Vickery Hills plaintiffs foot the bill for a lawyer, as well as paying the Gulbankians for all the harassment and the loss of business they have endured over the past four years.

22 Silvio Zavarella June 3, 2013 at 1:23 PM

Yes, the town needs to step up and pave the Guilbankian parking lot for the school buses to park safely with a long term lease and low interest loan at a price everyone can live with or better yet, the town should move the buses on to town owned property that can meet all the parking saftey guide lines Safety First

23 Krikor June 3, 2013 at 4:51 PM

“abutters who are still unhappy with the “goings on” on the Gulbankian property”

What is that supposed to mean? There has always been busses there and the repair of buses on the property. The owners of the condos knew that before they purchased the condos. In fact the Gulbankian machine shop is just that. They machine and assemble. That’s it. Unlike the bus area of the property, there is NO running of engines ever. So there is never any fumes of any kind. They repair and the customer picks up or the engine is shipped. Where is the pollution? Where is the possible route of any pollution? How is the water supply endangered?

I have had work done at the machine shop and there is absolutely no noise. You cannot not hear anything even when standing just outside of the building. So the idea of the machine shop being somehow evil or a “goings on” is just silly. These arguments by the town and abutters are at once silly and suspicious.

More importantly, people who have professed to care about pollution or the environment have forgotten one important point. WHY WOULD THE GULBANKIANS DO ANYTHING TO POLLUTE THEIR OWN PROPERTY? They would be in essence destroying the value of property that they hold dear. They would never be able to sell the property if it was contaminated because banks would not loan money on contaminated property and would require a 21 e test to prove it is clean in order to okay a purchase loan.

So the entire premise of the abutters and the town board is ridiculous, illogical and just wrong. I agree with the idea that this is no more than snob zoning, the genesis of which comes from unreasoned neighbors and an unthinking town board eagerly doing their bidding..

24 Mike June 4, 2013 at 8:23 PM

The town of Southborough should be ashamed of themselves. The Gulbankian family has been doing business on their property for decades and just because some moves into a condo and wants his lil slice of heaven. Well guess what, they been there long before the condo’s were built and just because you didn’t do your homework before you made your purchases….too bad. Its just like the people who bought houses next to Hanscome and cry about the jet noise….too bad. The US Air Force is not going to close the base and neither should the town of Southborough shut down a machine shop!

Its a machine shop people, its not a chemical plant. A machine shop works with steel same steel you drive your kiddies to soccer practice every other day. Maybe the Gulbankians should convert their business to a “more green business” like working on Prius’s. Ohhh wait, a Prius (the green wonder) is a rolling toxic super fund site. Yes people, those batteries are hazardous. Im sure one Prius as 10x’s the amount of hazardous material than whats inside a one man machine shop. I’d be more concerned about the transfer station.

So what next after the town is successful shutting down a machine shop? I’m sure most bushiness in town are watching closely cause they are the next ones in the cross hairs. Loose bushiness in town and your real estate taxes will triple what they are now.

25 Raffi Garabedian June 5, 2013 at 8:45 AM

I guess the biggest mistake the Gulbankians made was to sell that beautiful piece of property to the developer who then built the condos where the residents who started this entire farce now live.

Hey Gulbankians, get out and sell your property for large money to an Avalon developer who doesn’t need any permission from the town for anything because they will earmark a certain number of apartments units for low income housing. When a developer does that he can bypass any bylaws of the town. That is the law. That would be poetic justice for those snobs who engineered this travesty.

The best thing to come out of this mess would be for reasonable and fair minded people to run for those elective offices in Southboro so that this sort of human tragedy will be avoided in the future.

26 Mark D June 5, 2013 at 11:18 PM

All I can say is shame on you Southboro. I have know this family for years and they are the hardest working people around. Their kindness is unparalleled. To read what the ZBA is putting them through makes me utterly sick to my stomach. The condo residence have issues with the Gulbankian property? Give me a break. Noise? What noise? I have been at the machine shop on several occasions and couldn’t hear any machines running. In reading other comments I agree that an engine is an engine. I don’t care if it is a bus, antique or a boat for that matter….it’s an engine. They are not working on cars therefore there is absolutely no pollution or dangerous matter causing danger to water. engines are shipped to them by crate and then worked on and shipped back in a crate. To subject the Gulbankians, who by the way have been living on that road for centuries before any house or condos existed, to these unreasonable, unnecessary demands is ludicrous. The Gulbankians are resilient people and if the ZBA or Condo board think they can drive this family out then you are in for a rude awakening. As far as I’m concerned the condo residence can pack up and leave!!

27 C.T. Vermes June 15, 2013 at 10:53 AM

The Gulbankian family should close their business, and build as many section 8 welfare apartments that can fit on the property. The town would be happy because the machine shop is gone, and the Gulbankians could sit back and collect rent. As far as the machine shop, there is many properties in other towns that would welcome a strong business to their town. Many towns offer abatements to occupy currently unused buildings. This may be a win-win situation.

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