Neighbors press Zoning Board to treat 41 Birch Hill Road as transient commercial use; board closes hearing

The Stow Zoning Board of Appeals closed a reopened public hearing on March 23 over the use of 41 Birch Hill Road after neighbors and the appellant said the property functions as a transient, businesslike ‘‘sober home’’ rather than a single‑family dwelling.

Brian Burke, an abutter and the appellant, told the board he had submitted additional correspondence and legal argument urging the board to classify the property under the town’s zoning bylaws as a nonconforming commercial or transient use. Burke said the owners and operators had largely declined to participate in the local proceeding and suggested that the decision‑making record will matter in any future judicial review. “They deliberately chose not to participate,” Burke said, arguing that the occupants are a rotating, short‑stay population and that the operation lacks the permanence courts associate with a single housekeeping unit.

Neighbors described frequent arrivals and departures, vehicle traffic from out of state and brief stays that, in their view, resemble a commercial admission pattern rather than long‑term residency. “I’ve seen cars coming at 9 or 10 p.m., a person with a duffel jump out and go inside,” one nearby resident said, asking the board to consider public‑safety and neighborhood impacts. Ted Schwarz, another abutter, urged decisive enforcement, saying owner communications have been inconsistent and that the neighborhood has waited for the owners to provide written confirmation of any change in use.

Several speakers described a corporate structure linking an outpatient clinic and residential services; a consulting neighbor said he found common corporate ownership among the entities involved. Burke and others raised the possibility that the residential address receives referrals from an outpatient business and that, together, the enterprise amounts to a commercial residential program.

Board members discussed four procedural paths: uphold the building commissioner’s statement of what the bylaw requires; overturn and grant the appeal; affirm the officer’s statement while separately finding a zoning violation and asking the building commissioner to enforce it (for example through a cease‑and‑desist); or agree to a written extension of the statutory 100‑day decision clock so owners can document a change in use. The 100‑day deadline was noted by Burke as occurring in early April; he offered a written extension if the board needed more time.

The hearing closed on a 4–1 vote. The board did not reach a final determination on whether the property is a prohibited commercial use, whether it hosts more than five unrelated occupants, or whether a cease‑and‑desist should be issued; members said those factual findings and any enforcement directions will be drafted in a later decision. The record includes email correspondence the building commissioner circulated that one owner reportedly said would end the sober‑home use and re‑rent the property as a single‑family residence within two weeks, but neighbors and the appellant said they had not received written confirmation of a completed change in use.

Town staff and members cautioned that the ZBA’s authority is to interpret and apply zoning bylaws, not to adjudicate public‑health or police matters. Town counsel’s written guidance (on file with the board) was referenced during debate about how federal disability protections under the Americans with Disabilities Act intersect with zoning rules; several members emphasized they must craft factual findings that would survive judicial review rather than rely on broad policy claims.

The board scheduled a tentative continuation to consider next steps and any enforcement language for March 30 (the date may shift pending member availability and will be posted on the ZBA web page). The public hearing record is now closed; the board said it will prepare findings and possible directives to the building commissioner based on the assembled testimony and evidence.