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.