The Martha’s Vineyard Commission (MVC) last week cancelled a scheduled vote in which the regional permitting agency was expected to decide not to review the Goodale Construction Company’s sand pit as a development of regional impact (DRI).
Only four hours before the June 2 vote, MVC executive director Mark London called it off in order to allow time for a public hearing. Mr. London said that a review of the procedures led him and MVC chairman Chris Murphy to decide that the MVC could not act without first holding a public hearing.
Oak Bluffs selectmen referred Goodale’s pit to the MVC, following complaints by abutting property owners that the company was making plans to expand sand and gravel operations without proper permits.
On May 23, the MVC land use planning committee (LUPC) voted 11-1 not to recommend a review, following a two-hour session. A full commission vote was scheduled for June 2.
Although Goodale’s attorney and many abutting property owners spoke at length to the LUPC about the impact of the gravel mining and manufacturing operation, the session was not a formal public hearing.
Mr. London sent an email to commissioners at 3:15 pm Thursday, to cancel the meeting and the vote.
“Since the letter of referral from the Oak Bluffs Board of selectmen was somewhat ambiguous, I asked the town officials to clarify it,” Mr. London wrote. “I just talked to Michael Dutton, and he has now clarified that the intention of the board of selectmen was to send Goodale’s as a discretionary referral under section 1.1 of the DRI Checklist.”
Projects may be referred to the MVC in several ways. Town officials use a checklist, which details dozens of factors that would trigger a review, based on the size, location, and impact of the project. Some reviews are mandatory, others are “concurrent,” meaning the MVC could reject the referral, or accept it for review, and ultimately issue a permit with conditions.
Referrals under section 1.1 require a different procedure than the referrals cited in the selectmen’s letter. Section 1.1 allows selectmen to refer a project that does not otherwise trigger any issue on the DRI checklist. Under a discretionary referral, the law requires a public hearing. The MVC has tentatively scheduled that public hearing for June 16.
“That’s a no-brainer,” Douglas Sederholm of Chilmark, chairman of the land use planning committee said. “Once the town made it clear they were making a 1.1 discretionary referral, our hands are tied. We have to have a public hearing.”
Goodale Construction, through its attorney, declined comment on the developments.
Making a point
In a letter dated May 9, the Oak Bluffs board of selectmen asked the MVC to consider the Goodale sand pit as a development of regional impact (DRI).
“The board elected to refer the project as a discretionary referral under sections 1.6 and 3.1(g) of the DRI checklist,” town administrator Michael Dutton wrote.
Mr. London cited the words “discretionary referral” as the ambiguous part of the letter.
Section 1.6 covers land protected as habitat for endangered species, and section 3.1(g) covers a change in intensity of use. Both are concurrent referrals, not discretionary referrals.
There was a lengthy discussion among commissioners at the May 23 land use planning commission meeting about procedural issues, with many references to sections 1.6 and 3.1(g), but section 1.1 was not discussed. At the Oak Bluffs selectmen’s meeting, in which the board voted unanimously to refer the matter to the MVC, sections 1.6 and 3.1(g) were specifically cited, but section 1.1 was not debated.
“It would have been useful if it had been focused on earlier in the process,” Mr. London said in a phone conversation with The Times. “There were many aspects to the complex referral. The procedural issue — we were focusing on the two major things we did discuss, whether the commission has purview, and the other thing is what is the regional impact. It’s in everybody’s best interest, including the Goodales, that all the proper procedures are followed.”
Mr. London said the MVC staff has researched some of the issues raised at the May 23 meeting, and those issues can be discussed at the public hearing.
An extensive update of the staff report dated June 2, the day of the scheduled vote, raised new issues not discussed, or briefly and generally discussed during the previous meeting.
Among them is whether all the 100-acre property is grandfathered under Oak Bluffs zoning laws or whether only part of the property is grandfathered. Town officials contend the property is exempt from current regulations, because the gravel mining operation pre-exists zoning laws.
Questions were also raised in the revised staff report about whether construction of a new tower at the asphalt plant, leased and operated by White Brothers-Lynch Corporation, required a special permit from town zoning boards and whether that tower fits the definition of a structure.
Also questioned in the staff report: whether the plant has proper current permits from the Massachusetts Department of Environmental Protection; whether the concrete manufacturing plant operated by Goodale Construction has proper federal permits for water runoff; whether the company has a spill prevention plan for its above-ground storage tanks; whether the company has proper containment systems for hazardous chemicals and cement process additives; and whether bullets from target shooting contaminate the soil.
In response to a call from Paul Foley, the commission’s DRI coordinator, an official from the federal Environmental Protection Agency (EPA) said the Goodales should hire an engineer to review the facility and whether new permits from the EPA are necessary, according to the staff report.
Permits are a key jurisdictional issue. At the May 23 meeting, attorney Kevin O’Flaherty, who represents the Goodale family, emphatically asserted that any review must be triggered by an application for a permit. In this case, town officials say no building or other regulatory permits are required. He said if there is no permit, the MVC has no authority to review.
Mr. Sederholm, a lawyer in private practice, said that is the interpretation of one lawyer, and that MVC counsel may have a different opinion. He said a discretionary referral under section 1.1 of the DRI checklist, may be reviewed by the MVC, even if the applicant has not applied for any development permit.
“We’re all very sensitive to the fact that this is an activity that has been going on for 70 years,” Mr. Sederholm said. “But a grandfathered activity doesn’t mean you can do anything you want.”