NewburyportNews.com, Newburyport, MA

August 6, 2013

Civil rights complaint filed against Merrimac resident

By Elizabeth Rose
Correspondent

---- — MERRIMAC — A small but hardy group of residents fighting the construction of a Dollar General store on Main Street since it first received a special permit from the Zoning Board of Appeals has added a new complaint to a lawsuit first filed in May.

In late May, Peter Kitsakas and Carol Beaudoin, both abutters to the property, filed a lawsuit in Superior Court against the zoning board, maintaining that the decision to approve special permitting did not contain any findings to support its passage.

The complaint argues that “the Board exceeded its authority and abused its discretion by granting a special permit without any foundation or basis, and without having received the advice and consent of local boards and commission specifically identified in the Water Resource Protection District (WRPD) Bylaw.”

On July 16, an amended complaint was filed in Essex Superior Court which added violations of the Massachusetts Civil Rights Act and a new defendant.

A civil rights complaint was added against Richard Waterhouse of the Waterhouse Realty Trust, owner of the parcel. The complaint argues that remarks posted by Waterhouse on the Facebook page “Merrimac Residents Against Dollar General” were “intimidating and coercive and … designed to interfere with the plaintiffs’ exercise or enjoyment of rights secured by the constitution or laws of the Commonwealth.”

The remarks include the comment, “Don’t waste your time and money opposing DG … You can’t stop it!! Would you rather have a pig farm on the site?” posted on June 12.

On June 16, Waterhouse posted, “Should I be doing some contingency planning like contracting with Kimball Farm of Rock’s Village to dump their bovine excrement on the site at least six inches deep.”

The attorney filing the complaint, Daniel Hill, said in an email that “a judgment for the plaintiff would enjoin the defendant from further violations, and would require the defendant to reimburse the plaintiff’s attorneys fees and costs.” No other fines would be involved.

When contacted, Waterhouse said he had no knowledge of the complaint. He said, “I have received nothing and have heard nothing. It must be in response to my letter to the Planning Board which I sent on July 30. He is just trying to intimidate. I shot his arguments out of the water and I won’t waste my time responding to it. It is silly.”

The Dollar General store is intended for a 1.7-acre parcel presently owned by the Waterhouse family and is located at 1 Bear Hill Road on the corner of Route 110. If built, it would be the first small retail store associated with a national chain to come to Merrimac.

The zoning bylaw in question is Article 14.8.3, which does not allow impermeable surface on any building site to exceed 15 percent or 2,500 square feet, whichever is greater. The plans for the Dollar General call for 54 percent of impermeable surface between the size of the building and the parking lot.

A special permit for the extension of impermeable surface was issued by the zoning board. Attorney Hill stated that his plaintiffs are challenging the permit because the board may have “rubber-stamped” the process.

“We are challenging the process because we believe that [the ZBA] did not look rigorously enough at the associated runoff of the parking lot into the town’s Water Resources Protection District. We also believe that the appropriate boards such as the Conservation Commission, the Board of Health, Water Department and Planning Board were not consulted prior to the permitting. There is no evidence in the permitting of these consultations,” he said.

A date for the hearing has not yet been set. A Planning Board review of the store’s architectural design, lighting and sound modifications as well as traffic, vehicular and pedestrian safety is set for Tuesday, Aug. 27, the time and location to be announced.