O’Donnell Sand & Gravel Digging Shut Down

O’Donnell Sand & Gravel Digging Shut Down(Kingston, Ma) The hauling of earth materials in 18 wheeled rigs was partially halted by an enforcement order. Photo by Dennis Randall (November 19, 2004) Zoning Enforcement Officer Paul Armstrong notified land owner Mary O’Donnell that he has issued a verbal Stop Work Order relating to excavation being done on her property in the South Industrial Park and adjacent to the MBTA Rail Station.In his November 2 order, Armstrong states: “The Stop Work Order covers any excavation of virgin material on your property both on and off the MBTA easement. It appears that excavation at the center of your property has extended beyond the easement boundary and below the easement elevations shown on the easement plan.” Armstrong cautions O’Donnell that any further excavation “will require prior documentation that materials to be removed are indeed subject to the jurisdiction of the MBTA easement and not the Kingston Earth Removal Bylaw.”Armstrong also cautioned O’Donnell about additional excavations much further from the railroad easement toward the rear of her property. That section is the site of a 200+ unit 40-B proposal rejected by the ZBA and currently before the Housing Appeals Committee. Once again, Armstrong states that this digging, also halted, has occurred in an area appearing to be “outside the MBTA easement and inside the edge of the Kingston Water Resource Overlay District.”Armstrong instructed Mary O’Donnell that no further excavation can occur unless a valid Earth Removal Permit is applied for and voted by the Board of Selectmen. He goes on to say that “any illegal excavation is subject to reviewfor establishment of fines or fees owed to the Town of Kingston.” Work done in an overlay district is also subject to approval by the Water Commissioners.Armstrong left it that he expects a call from O’Donnell in order for them “to review on-site easement delineation and elevation documentation on the MBTA slope easement.”The contractor engaged in the excavation and trucking, is sand & gravel giant G. Lopes Construction, Inc. Vice-President Gilbert Lopes, Jr. wrote Armstrong indicating that “we were shown an approximate line of where the MBTA easement was which we adhered to. As far as the rear of the property, there was no mention of an aquifer district” Lopes honored the verbal order and immediately stopped digging.Armstrong told the Observer that O’Donnell named Dick DeBenedictis as the engineer for the project. DeBenedictis told this reporter that he has not done work for O’Donnell in over a year. Neither Mary O’Donnell nor Gil Lopes returned voice mail messages left for them. Shawn O’Donnell, son of Mary O’Donnell, has filed an appeal to the Housing Appeals Committee (HAC) in order to obtain “constructive approval” for a 40-B project on his mother’s land, the same property impacted by Armstrong’s order. Phase I would consist of 200+ units with plans to then develop Phases II and III. HAC will hear preliminary arguments this month.Additionally, abutter Anna DeMar Hamilton, widow of John Hamilton, has filed an action in Land Court under MGL Chapter 40A, paragraph 17 essentially asking the Court to remand the O’Donnell Old Colony Commons 40-B appeal back to the Zoning Board of Appeals. The HAC will have to be mindful of the Hamilton action when reviewing O’Donnell’s. An older court order, still in place, requires that Hamilton receive twenty cents a yard for any materials removed from the O’Donnell pit. The decades old court order originated over land ownership rights when John Hamilton was seeking to purchase the land, formerly known as the Perryland when it was owned by A.W. Perry. John Hamilton had long contended that O’Donnell, in the real estate business at the time as a broker, had bought out the land from under him. Resultant court action gave Hamilton a proprietary interest in the profits from the land on a percentage basis. When contacted by the Observer, Anna DeMar-Hamilton was unaware of the Stop Work Order.By Dan Sapir

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