Board of Health

CITY OF SALEM BOARD OF HEALTH MEETING MINUTES September 10, 2024 MEMBERS PRESENT: Datanis Elias, Jeremy Schiller, Geraldine Yuhas, Paul Kirby, remotely MEMBERS EXCUSED: Sara Moore OTHERS PRESENT: David Greenbaum, Health Agent, Joyce Redford, Director, North Shore/Cape Anne Tobacco Policy Program, Barbara Maitland, Andy Varela, Mark Verkennis, Ina Hoffman, Larry Slater, Alan Hoffman, Melody MacEachern, John Arthur. TOPIC DISCUSSION/ACTION 1. Call to Order 7:00pm 2. Approval of Minutes D. Elias motioned to approve the minutes. G. Yuhas 2 nd. (July 16, 2024) Roll Call – J. Schiller – yes Datanis Elias – yes Geraldine Yuhas – yes Paul Kirby – yes All in favor, Motion passed by a vote of 4 to 0. 3. Hearing 23 Cedarcrest Avenue – D. Greenbaum explained that the Board of Health had received several Barbara Maitland, Appeal of complaints regarding a variety of issues on the property at 23 Cedarcrest Order to abate nuisance Avenue regarding the amount of debris, wood chips being stored on the conditions on this property. property, dead trees and loud noises coming from the property. An (Vote Anticipated) inspection on July 16, 2024, was conducted, conditions were observed that were deemed to constitute a public health nuisance, an order to abate the nuisance conditions was issued to the property owners, Barbara and Peter Maitland. Mrs. Maitland appealed that order and requested a hearing in front of the Board of Health. He advised that the Board had the order and photographs in their packets. Mrs. Barbara Maitland appeared as representative for 23 Cedarcrest Avenue. She stated she and her husband purchased the two-acre property in 1972, and in 1976 they built the house on the property. We have had a farm all tractor and gardens from the very beginning, we have always enjoyed gardening. We have had pigmy goats and at least 10 groups of chickens over the 48-year period we have lived on the property. Mrs. Maitland explained that when the chicks are babies there is no way to tell if they are male or female. They are all supposed to be female, but some ended up being roosters. Every day one or two roosters would be identified, and we would remove them then another one would pop up. It was assumed we were just keeping the roosters when we weren’t. We have another new batch of chickens and have identified a rooster. We just don’t know when a rooster will be in with the chickens. She states they have 1|Page been harassed for over 40 years. Someone called the police stating there was a stolen car on the property that was my husbands woodchipper. My husband is a retired engineer. I had the opportunity to look at the property from the condominiums, that land was pushed back in the 1980s and elevated at least 10 feet causing 172 of the condos to look down on our property. There are also another 38 units at Loring Hills Condominiums that look down on our property. We are under a magnifying glass for any harassment you could imagine. We were also told that we were filling in wetlands that we had to hire an expert to come and prove it was not wetlands. My husband graciously planted 25 Rose of Sharons around the property line as well as Hemlocks, and over 50 trees in that area. Again, I went over and looked down and saw what these people saw and realized that yes, there was some metal and debris on the property. My husband is a welder and recycler, and he has a purpose for all that metal. He uses it in his projects. It is my job to get him to reduce this down. We have 2 30-ton dumpsters, one is full, and we are working on filling the second one. We are trying to appease all those who are harassing us. As far as the farming is concerned, Mrs. Maitland states she is offended the property was referred to as a transfer station. All the pallets are used to move dirt, rocks, or metal from one area to another. Mrs. Maitland states they were told they had bedframes on the property, they are not bedframes, they are cold frames for the vegetables. My daughter Holly and her husband turned the property into a farm 17 years ago. They started the farmers market 16 years ago and they are confirmed sellers of their vegetables in downtown Salem. I am happy to answer any questions, I feel my home is being upset by all these people taking this to this level. Unfortunately, Andy is a City Councillor, and I feel we have been more scrutinized because he is a Councillor, not less. He is not getting preferential treatment. Andy Varela, 23 Cedarcrest Avenue, I am here to represent myself, my family and my farm, I am not here as a representative of the City Council. We are here tonight to explain ourselves; my wife and I operate the farm and have since 2007. This became possible under a budget bill under then Governor, Deval Patrick under the small plot farming amendment. This changed anyone with an exempt use farm, this has two requirements, first you need two or more acres in production, and second, you need to make $1,000.00 per acre. If you meet those requirements, you are considered exempt by the Commonwealth of MA as a farm, this provides protection for what you do at the farm. Since that time, my wife and I began the farm and have been providing vegetables and eggs to our customers and residents of Salem. Over the last few years, the business has changed, but we are still farming and are still engaged with the community. What we are looking for is to be recognized as a farm. In May of 2022 the City Council amended the use regulations, under section 3, Principal Use, to allow exempt use farms in the City of Salem in all residential and business zones. Under the community assessment in 2018 they found that having farms was a benefit to the community. We want to be good neighbors; we have tried to open dialogue with our neighbors. Regarding the issue with chickens, we have approximately 150 chickens, sometimes we have roosters. When we identify a rooster, we either give them away or we kill them. I understand the city can regulate an exempt regarding roosters as they can be considered a nuisance. We are not harboring roosters and will continue to remove them when identified. Concerning the areas of debris, 2|Page farming is a very low margin business. We do a lot of adaptive reuses with what we have. When you are a farmer, you don’t necessarily throw things out that could be used later. We have some areas that could be cleaned up and we are working on that with the dumpsters we have rented. Mr. Varela stated they want to be recognized as a farm and explained they have a meeting with the Mayor, Inspectional Services Director, and Planning Director to discuss the designation of property. He continued explain that is their desire to operate under the exempt use. Mr. Varela stated he will continue to work with his neighbors to mitigate any nuisances and be a good neighbor. J. Schiller asked about the exempt status of the farm. D. Greenbaum explained the exempt status is something that is in question and that the Assistant City Solicitor was joining virtually and maybe he could offer additional information, but he explained that was not a question for the Board of Health. J. Schiller explained the Board of Health is not able to address zoning or harassment. The Board is only able to address the nuisance conditions cited that exist on the property under the health codes and regulations. A. Varela explained that the exempt use is allowed by right in all residential and business districts, we don’t necessarily need to prove that, as long as we meet the two requirements, we are considered an exempt use. Where this has gotten confusing, is in 2018, when we applied for a building permit, the previous Building Commissioner determined the primary use of the property was as a residence, not as a farm. The city hired outside legal council to affirm the opinion of the Building Commissioner. Since that time, after the zoning change, we have not been given the opportunity to establish our exempt use. The debris fields, the wood chips, that is all necessary for the farm operation. J. Schiller asked Mr. Varela if it is his position that the Board should bypass the violations because they are exempt based on the status of the farm. Mr. Varela stated that is correct. If the only use was as residence, then he understands how these issues would fall under the purview of the Board of Health. D. Elias asked if the property has been declared exempt under the zoning. D. Greenbaum explained that he did not believe the property had been declared exempt and regardless, if he was exempt under the zoning, he would not be exempt under the health code or nuisance laws in the Commonwealth. Assistant City Solicitor James Wellock addressed the Board and stated, he did not know the status of the property as farm, however, as the chair, rightfully noted, the issue before the Board tonight was not the status of the property but based on the pictures, the debris is for farm use or constitutes a nuisance. He described the conditions depicted in the photos and the conditions in the photos aren’t necessarily consistent with farm use. The question of whether this is exempt under zoning or assessed as farmland for tax purposes is not an issue before the Board tonight. What is before the Board is if the violations cited by the Health Agent are supported by evidence in the opinion of the Board. J. Schiller stated he would defer to the Health Agent, as the members of the Board are not experts as to what is a violation of code and the Health Agent is he could not disagree with the assessment of the Health Agent. D. Greenbaum stated he felt the pictures spoke for themselves, and that he 3|Page has addressed similar situations by using comparable photos and language to address numerous similar situations throughout the city. Whether there is a farm on the property or not, if there is a residence on the property, we have addressed these situations the same across the board and I would ask the Board to look at the evidence and find that there are nuisance conditions that exist on the property. J. Schiller asked if they obtained exempt status would that change the decision of the Board or is that unclear. D. Greenbaum stated he thought it was somewhat unclear, in his opinion he didn’t think it would change the fact they would have to comply with the nuisance laws but that may require zoning/legal clarification. Nothing would change if they don’t achieve exempt status. P. Kirby inquired about testimony from Mr. Varela stating that previously the primary use of the property was determined to be a residence. D. Greenbaum explained that the previous Building Commissioner had made the determination the primary use was residential not a farm. He further explained that there will be an internal city meeting to discuss the status of the property. Mark Verkennis, 25 Valiant Way addressed the Board. He is a direct abutter to Maitland Farm. Regarding the order of the Board, clearly the property has been used as a dumping ground for at least the 10 years I have resided at Valiant Way. Most, if not all of the items cited by the Board remain on the property as of tonight. The violations speak to the general upkeep of the property and there is the potential for off sight impacts. I will give you one other example, this summer, the condo association sent a letter to the farm operator asking to have two dead trees removed. No action was taken by the property owner and a few weeks later one of the trees fell on our property and hit one of our buildings. Thankfully, no one was hurt, and property damage was minimal, but it demonstrates there is a lack of upkeep on this property. I will note the other dead tree is still there. I will touch upon the biggest issue, the ongoing keeping of roosters at this property even though the urban agriculture ordinance prohibits the keeping of roosters. We have been awakened daily, sometimes as early as 4:30am. I have worked in the field of Urban Planning for 40 years; I support the concept of urban farming. Every city grapples with the idea of a farm and the reality of what the operations of the farm are. Farms can be dirty and noisy, and they have impacts on abutters, particularly when they are in the middle of a residential neighborhood. We are not here to harass the Maitlands or attack urban farming, but we do expect the farm operators to comply with all relevant city regulations and show some consideration for residential neighbors. J. Schiller stated this seems like a contentious issue that has been ongoing over an extended period of time; however, the charge of the Board of Health is very narrow. Until there is a proven exempt status, the Board must apply the code violations as presented by the Health Agent. The violations are not being disputed; they are being conditioned based on an exemption that apparently does not exist at this time. If the violations are not being disputed, then the Board has no other option but to enforce the violation order the way it is written. Erin Britt, 32 Cedarcrest Avenue, spoke virtually. They are a neighbor of Maitland Mountain Farm and are surprised to hear the allegations from the other neighbors. We have lived here for 6 years and are big supporters of 4|Page the farm. We have never heard roosters or chicken activity from our home. We are big supporters of the farm and what the Maitlands are doing at 23 Cedarcrest Avenue. J. Schiller reiterated that the Board of Health is not for or against the farm, the sole responsibility of the Board is to determine if a nuisance exists and apply the appropriate codes and regulations to have the nuisance conditions abated. It was explained that it was determined the violations are a public health nuisance and the conditions must be removed. Additionally, D. Greenbaum stated that he has heard the roosters firsthand, and understands Mr. Varela is taking steps to remove them. Jeff Cohen, 12 Hancock Street, Ward 5 City Councillor, spoke virtually. He stated that he feels there might be some confusion about complaints and what is for the farm. He spoke about 2018 and chicken-gate when the city learned several properties had chickens, they may not have the same number of chickens as Maitland Farm but maybe they encounter the same issue with roosters on occasion. He spoke about his work with Youth Build and the times he took the students to the farm. He found it to be very educational for the students. He believes Maitland Farm provides more than healthy organic products to sell in the city. The Board must make a decision based on the Health Agent’s recommendation, but as the farm is attempting to become exempt there needs to be recognition that this may or may not happen in a few weeks. G. Yuhas asked if the fines in the letter would apply if they did not comply. D. Greenbaum stated they would apply. Steve Kapantis, Wisteria Street appeared virtually. He stated he didn’t know if the Board had enough information to render a decision at this meeting. He was not taking a position in favor or against the farm but felt the Board should make a well-informed decision. If the farm is meeting with the Mayor, Zoning, Planning, and the City Solicitor he didn’t feel it imperative the Board decide tonight, maybe postpone the decision to the next meeting when you will have the answers to the questions you don’t have tonight. P. Kirby asked if at some point the Health Agent could summarize the violations and issues at the farm. Kirmsheska, 46 Cedarcrest Avenue, appeared virtually. I am a direct abutter to the farm; we are privileged to have the farm in our neighborhood and be able to get fresh products from the farm. We don’t hear the chickens or roosters. We are lucky to have the farm, I go on the farm and don’t see any of the debris you are mentioning. Please discuss exactly what it is you are seeing and are concerned about. Ina Hoffman, 23 Valiant Way stated she appreciates what the neighbors on Cedarcrest Avenue are saying. However, they do not live at the back of the property, and they are not being awoken early in the morning by the roosters. They are not looking at all the stuff strewn across the farm. She stated she is not against farms, when they were growing flowers and vegetables that was great. However, to have 50-100 chickens near a home with roosters is not alright. Many of us moved in before the farm was there, and what the farm was then to what the farm is now is completely different. Larry Slater, 24 Valiant Way, stated his house is the house the tree fell on. He explained what happened when the tree fell and stated they were lucky no one was on the patio and the property damage was not significant. The 5|Page tree that fell is encased in several feet of wood chips. We watched it die over several years. There is a second tree that is now dying and in danger of falling. I have been there for 24 years, there was no farm at that time. Now we are looking down on a junk pile. As far as the chickens are concerned, I understand that when you get the chicks you can’t tell if they are male or female, but I was awakened at 4:30 this morning from a rooster. I don’t wish them ill will in any way, but they need to be better neighbors. Councillor Harvey stated he felt there are a lot of unknowns at this point. I am also hearing a lot about wood chips and roosters, but no one is discussing the debris. I understand farms will repurpose things for one use or another. After hearing from Mrs. Maitland and Mr. Varela that they have rented two dumpsters, filled one and are working on the other. In my opinion, give them the 30-days, let them have the meeting with the Mayor, see if they receive the exemption, see if the unknowns are answered. Maybe table this until the next meeting so the Board has a clearer understanding of how the property will be classified. Discussion ensued around the purview of the hearing and what is the scope the Board should be considering based on the violation notice issued by the Health Agent. J. Schiller asked Mr. Wellock if the pending meeting with the Mayor resulted in an exemption for the farm, would that change the enforcement of these violations? Would there no longer be a violation of the code under the exemption? D. Greenbaum explained that it is his opinion that the violations would still exist regardless of whether the farm were granted an exemption to the zoning ordinance or not. He feels the nuisance laws would still apply regardless of the zoning. J. Wellock confirmed the Health Agent was correct in his interpretation except as it relates to ordinary farming operations. For instance, if there was an odor nuisance due to manure in a field, that is consistent with ordinary farming operations that couldn’t be declared a public health nuisance because it is a necessary function of a farm. Anything that is not considered an ordinary farming function is a violation of the sanitary code; the Health Agent is absolutely correct. J. Wellock described the conditions depicted in the pictures provided to the Board and stated in his opinion these conditions did not appear to be consistent with the necessary function of a farm, they appear to be debris piles. J. Schiller, in fairness, they are saying some of this debris is to be repurposed for use on the farm. D. Greenbaum argued that looking at the pictures, it appears some of these piles have been there for quite some time. If the items are to be repurposed how long will they remain on the property before they are repurposed. He explained that the order lists several things that in his opinion are in violation of the health code and that Mr. Varela is in the process of opening a restaurant and all the old restaurant equipment is currently stored on the property. It is his belief this is not germane to operating a farm. J. Schiller asked Mrs. Maitland and Mr. Varela how they would balance the needs of the neighborhood, seeing that there are obviously people being impacted by the operations of the farm and the condition of the property. Mrs. Maitland stated that many of the debris piles are gone as they have already begun to clean the property. 6|Page Mr. Varela added that during the process of determining the exempt use they are drafting an action plan for the property. The restaurant equipment is for the expansion of the farm. We are looking to create an action plan so that some of the things in question we can determine where they will go, and how we will implement them in 6 months or a year. Regarding the exempt use, we have not had the opportunity to establish the exempt use. The city must provide us the opportunity to demonstrate our exempt use. We will provide a plot plan showing roadways, fields, out buildings, and things in question on the property showing agriculture production. That conversation needs to be initiated by inspectional services. J. Schiller, with all due respect, I would like to separate that conversation out, because that has nothing to do with the Board of Health. There are nuisance violations on the property, we have photos of them, and we don’t hear any denials that the violations exist. There are steps the Board can take to make their view more palatable. A. Varela stated the intent of renting the two dumpsters is to show a good faith effort to clean the property. We want to be good neighbors. D. Greenbaum expressed that if there are items on the property that will be repurposed, for instance, fencing to be used as pens, that is fine, but they need to show us how the items will be used. The nature of the appeal isn’t quite understood, if they are already taking steps to clean the property the appeal seems moot. He recommends upholding the order and letting the process of the exemption playout as a separate process from the order to abate the current nuisance. J. Schiller, it appears that the appellant agrees that the violation exist, and you are currently working to correct them. It seems that every person that spoke tonight is in favor of farms and Salem being a progressive community that allows things that aren’t allowed in other communities. I take what the Health Agent said to heart, even if you gain exempt status, that is not a legal loophole saying you don’t have to comply with health codes or be a good neighbor. D. Greenbaum added that the Board has been given a legal opinion from the Assistant City Solicitor that regardless of the exempt status, in this instance, the nuisance laws would still apply. Alan Hoffman, 23 Valiant Way addressed the Board. He expressed that Dr. Schiller was 100% right. The neighbors have reached out to Mr. Varela and offered to work with him. They have explained the issues, the debris, and the noise from the chickens. Regarding the rooster, the rooster is against the law, period. Regarding the chickens, Mr. Hoffman invited members of the Board to his property to listen to the noise from the chicken coup. Regarding the wood chips, they have been brought in by Eastern Tree, the property is a dumping ground. There is a violation that has been acknowledged, he requests that the Board act on that violation and not wait. Do what the law says you are charged to do. P. Kirby asked if the order is only in reference to the debris piles, it does not reference the second dead tree, or the chickens. It was confirmed that is correct. D. Elias stated that the law speaks about the nuisance, and we know that whether the property is exempted or not there is a nuisance that needs to be abated. The order provided you with 30 days to abate the nuisance which you have begun to do. I recommend we extend that timeframe to allow the appellant to complete the removal of all the debris and have another 7|Page  inspection of the property. Discussion ensued regarding this proposal and what authority the Board had to act under the specific order and appeal before them. J. Schiller motioned to deny the appeal to abate nuisance conditions on this property but grant additional 30 days to come into compliance with the code. D. Elias 2nd. Roll Call – J. Schiller – yes Datanis Elias – yes Geraldine Yuhas – yes Paul Kirby – yes All in favor, Motion passed by a vote of 4 to 0. 4. Hearing K’s Konvenience/Mass J. Schiller provided some history regarding this establishment, there have Mini Mart – 34 Boston Street – been several appeals in the past and no one has appeared at the requested Hearing on Revocation of hearings. Tobacco Sales Permit due to J. Redford confirmed that was the case. She informed the Board that since egregious repeat violations of that time there had been an additional inspection that had uncovered Board of Health Regulation #24 additional violations. The inspector visited the establishment on 9/4/24 and (Vote Anticipated) spoke with a gentleman who identified himself as the grandfather of the owner and another man named Mike. They had an expired permit under the name of the prior business. It has since been established that this business has never had a valid tobacco sales permit. There were also flavored products which have been banned since 2020, this was discussed with the owner who appealed and did not appear. Joyce also spoke to a clerk about these same banned products. D. Greenbaum informed the Board that there was information provided to them regarding a police raid at this establishment for illegal drug sales. The owner and another gentleman were arrested on multiple felony counts of distribution of drugs and possession of firearms. It appears that this store under the current ownership was not operating for legitimate purposes. Melodie MacEachern addressed the Board. She stated she worked at the store up until a week before the police raid took place. She worked there during the time of the first tobacco violation and appeal. Discussion ensued regarding when Ms. Vasquez first appeared before the Board. It was believed it was in April or May to appeal a sale to a minor violation and the Board continued that hearing and requested Ms. Vasquez provide video to show the violation did not happen. Additional discussion took place about further violations and subsequent appeals Ms. Vazquez requested that she did not appear for. Ms. MacEachern stated she knows Ms. Vazquez appealed a violation and paid a fine. She doesn’t know about the other violations, but that everyone at the meeting tonight was there trying to keep the store open. We are working for her grandfather, he asked us to come back to keep the store going. D. Greenbaum explained that Ms. Vazquez is the owner of record. No one at the store has a permit to operate the business, not a food permit or a 8|Page  tobacco sales permit. Ms. Vazquez never had a tobacco sales permit; she should have never been selling tobacco products. It was explained that to continue to operate the store someone had to apply for and receive all necessary permits to operate the business. It was asked if there wasn’t a permit in place why wasn’t that known prior to now. D. Greenbaum explained, this is one of several thousand permits we issue. It is incumbent on the owner to make sure they are following all state and local regulations and Ms. Vazquez did not do that. Once we knew she did not have a permit we began the action required to correct that situation. D. Greenbaum recommended to the Board that this business not be allowed to have a tobacco sales permit until there is a responsible party identified and all state and local permits are obtained. Further discussion took place about what permits were valid or invalid. It was explained that permits are non-transferable, and Ms. Vazquez applied for a permit, but she never completed the process. She was advised she needed to complete the permit application and never did. John Atkinson addressed the Board. I am the owner’s grandfather. I am not the owner of the store. I invested in the store so my granddaughter could get the store to take care of her daughter, my great-granddaughter. She is a single parent, and I thought this would give her something to focus on and get her away from the hard life she had been in. I do not dispute the police raid and what took place. I only came back at the request of the employees to keep the store going for the benefit of the employees. I don’t know how to run a retail store; I brought Cassie on to run the store, and I am actively looking for buyers to sell the store. I was not aware there was no tobacco license. J. Schiller stated that this is a terrible situation. Discussion ensued about how to get the proper permits and licenses to allow the store to operate until a buyer is found and the store is sold. J. Schiller advised that because there is no tobacco permit there is no action the Board can take, and that Mr. Atkinson should speak to Mr. Greenbaum about how to proceed. D. Greenbaum advised Mr. Atkinson that in the interim, all tobacco products had to be removed from the store immediately. R. Redford reiterated that removal of the tobacco products means physically off the premises, not off the shelves and in the basement. She further explained that to obtain a tobacco sales permit, they would need to get a permit from the MA Department of Revenue prior to coming to the Board of Health. No action taken as there was no tobacco permit to revoke. 5. Bunghole Liquors – 204 Derby At the request of the owner of this establishment this hearing is continued Street – Hearing on Possible to the October Board of Health meeting. Revocation of Tobacco Sales Permit due to repeat violation of Board of Health Regulation #24 (Vote Anticipated) 9|Page  6. Chairperson Communications NONE 7. Public Health Announcements /Reports/Updates 8. Administrative Report ON FILE 9. Council Liaison Updates NONE 10. New Business/Scheduling of NONE Future Agenda Items 11. Items that could not be anticipated prior to the posting of the agenda. MEETING ADJOURNED: J. Schiller motioned to adjourn. D. Elias 2nd. Roll Call – J. Schiller – yes Datanis Elias – yes Geraldine Yuhas – yes Paul Kirby – yes Motion passed by a vote of 4 to 0. Meeting Adjourned: 8:37 PM Respectfully submitted, Next regularly scheduled meeting is Tuesday, October 8, 2024, 2024 at 7:00pm David Greenbaum at City Hall Annex, 98 Washington Street, 1st Floor, Salem, MA Health Agent 10 | P a g e