BEVERLY — The city has dropped its lawsuit against Beverly Harbor’s only seller of lobster bait over health concerns regarding storage of cow hides at the site.
In a lawsuit filed on July 21 against 88-year-old Richard Birarelli, the owner of Birarelli Wharf on Water Street, the city accused the business of leaving out about 60 barrels of decomposing cow hides that allegedly attracted bugs, caused unpleasant smells in the area and become an unprotected food source for rodents.
Local health officials had received multiple complaints over the cow hides and contaminated recycling the business allegedly left out on the sidewalk of Water Street, according to the lawsuit.
The city took Birarelli Wharf to court because it claimed the business failed to comply with multiple orders from the Health Department this summer to cover the cow hides and remove improperly stored cardboard boxes that have been on the sidewalk.
Officials changed their tune Friday, writing in a motion to dismiss — which was approved by a Salem Superior Court judge the same day — that the city is now satisfied Birarelli has abated nuisances caused by improperly stored cow hides.
“A cell phone photograph provided by counsel for Birarelli (shows) that the barrels of hides have been covered with plastic wrap and a visual inspection that the pallets of barrels has been covered with a tarp,” the city wrote in its request for a dismissal.
Ahead of the dismissal, the wharf’s lawyer, Olaf Aprans, argued the city had no evidence of a public health nuisance and has “overzealously, and incredibly, advocated for Tuck Point” condominium residents who have complained about the business.
Birarelli opposed the dismissal, and said through his counsel that he would only stipulate one if the city reimburses him for his attorneys’ fees or, alternatively, provides a letter of apology.
“The city will do neither and admits to no liability for fulfilling its lawful duty to abate public health nuisances,” the city said in its request for dismissal.
Birarelli Wharf has operated out of Beverly Harbor since 1976 and is now managed by the owner’s grandson, Thomas Birarelli. It sells lobster bait to local lobstermen, and has not received nuisance complaints like this until this summer, Aprans said in a July 31 filing responding to the lawsuit.
“If commercial fishermen do not have Birarelli Wharf as a resource, they will have to travel to Gloucester to obtain their bait, which would impose an undue hardship on their business,” Aprans wrote. “It is also the only tie-up facility located within Beverly Harbor, where commercial fishermen may offload their catch and land harvested product.”
The wharf regularly serves 23 commercial fishing vessels and has stored salted bait in barrels at the site since it opened, including salted cow hides for the last 10 years, according to the filing.
The city received eight complaints against the business from June 12 to July 9 from Tuck Point residents, but does not say if they were from multiple individuals or the same person, Aprans said.
Tuck Point was developed in the 1980s, years after Birarelli Wharf went into business. While condominiums are not allowed by right under the area’s zoning today and were approved as a legal nonconforming use, a business like Birarelli Wharf is, Aprans said.
“The Beverly Harbor District is supposed to accommodate water dependent commercial uses such as Birarelli Wharf, which has been operating continuously for almost 50 years, and which is currently the only infrastructure in place to support the Beverly commercial fishing industry at large,” he said in the July 31 filing.
The corrective orders from the Health Department did not mention flies around the cow hides, and were issued under codes that do not apply to businesses like Birarelli’s, Aprans said.
All cow hides were also properly stored, and cardboard boxes the hides were delivered in were only on the sidewalks because Republic Services had not collected them as a result of citywide collection delays amid the ongoing strike of the trash hauler’s workers, he said.
Herring used to be the most popular form of lobster bait, but salted cow hides have taken over in popularity in the last decade due to a decline in herring fishing. Cow hides also stay fresh longer and attract fewer pests than fish. This is also the first time neighbors have formally complained about their presence, Aprans said.
It’s common practice in the fishing industry to store salted bait in 55-gallon drum barrels, as is done at the wharf. The city also permits such bait storage, he said.
“It would be an unreasonable and undue burden to require bait storage in a different contrivance,” Aprans wrote in the filing. “Although lids cannot be placed on such barrels, it is standard practice to cover them with tarps, and, if necessary, plastic wrap.”
Aprans argued the wharf had already taken the corrective actions requested by the Health Department prior to the lawsuit being filed, like ensuring tarps covered bait barrels on the side of the property facing Tuck Point. All eight nuisance complaints were also made prior to the corrective actions, he said.
Health Director Laura DelleChiaie noted in her inspection notes of a follow-up visit on July 14 that the area smelled better and did not have a presence of flies while the barrels were covered, Aprans said.
But an affidavit from DelleChiaie submitted with the lawsuit contradicts this. In it, DelleChiaie wrote that she and another inspector were “immediately confronted with an overwhelming infestation of small black flies, which were observed swarming around and upon the site, as well as coming into direct contact with us, thereby creating unsanitary and hazardous conditions.”
On a July 28 visit, the smell at the wharf was so bad that DelleChiaie had to cover her nose, she wrote in a supplemental affidavit.
Aprans said the wharf has CCTV footage of the July 14 visit that shows DelleChiaie and the other inspector “ambulating normally and casually” around the storage site, not swatting at flies, and no presence of flies. Footage from the July 28 visit shows she never covered her nose and again was not acting like there was a foul smell, he said.
“(The city) has failed to meet its heavy burden justifying mandatory injunctive relief and the status quo of traditional bait storage within this commercial marine district should be preserved in the public interest of keeping a robust commercial fishery and working waterfront,” Aprans said.
Contact Caroline Enos at CEnos@northofboston.com.