The Oak Bluffs zoning board of appeals (ZBA) Thursday voted 5-0 to annul building inspector James Dunn’s ruling that Goodale Construction Company must obtain a special permit to continue mining operations at its 100.2-acre property off Edgartown-Vineyard Haven Road.
In April, Mr. Dunn ordered the company to apply for a special permit on the basis that the sand and gravel mining/asphalt enterprise “has been substantially extended since the use became nonconforming.”
Although Goodale’s operates in a residential zone, the company maintained it has the grandfathered right to continue unabated since the land was a mining concern before town zoning laws went into effect on February 10, 1948. Mining operations began on the property in the 1930s and the Goodale family has owned it since the 1950s.
The Thursday night, July 17, meeting was a continuation of a ZBA public hearing held on June 19, which was only the latest meeting in a long simmering rhubarb between the company and neighborhood abutters.
Goodale’s raised the ire of their neighbors in 2011 after the company fenced in the remaining part of its parcel, and cut a new road for access to the Little Pond neighborhood, which abuts their property. The latest flare-up began when Goodales began clearing trees on the last 20 mineable acres, on the western sector of the property, which is closest to the neighboring residential area. Peter Goodale, son of owner Jerry Goodale, estimated Thursday night it will take 20 years before the parcel, and the entire sand and gravel mining operation, is exhausted.
Abutters air concerns
Thursday night, abutters and nearby residents said that Goodale’s has increasingly become an environmental hazard, and they cited concerns about dust, fumes and the potential for polluting a crucial Island aquifer.
“The dust created by a gravel pit operation is not the same as the dust caused by farming,” Iron Hill resident Richard Fried said. “Gravel releases a crystalline silica which is a known carcinogen. These tiny particles enter the lungs and stay there.”
“In the last 40 years we know there’s been significant impact on the public health and on groundwater quality,” Iron Hill resident Judy Marion said. “That has not been addressed at all.”
“The trees are the last barrier and removing them will be detrimental,” Little Pond resident Patricia Marks said. “The lack of trees makes for more dust, more noise, and more snow depth in the winter which makes it harder for first responders.”
Kris Chvatal, a ZBA member who presided over the meeting, repeatedly had to remind members of the public providing comment that the hearing had no bearing on the continuing operation of Goodale’s. “The issue of operation is not on the table,” he said. “This is simply do they continue doing business with a special permit or without one?” he said.
Law of the land
Over the course of two hours, Jerry Goodale and Peter Goodale sat impassively at a table facing the board, flanking their attorney, Kevin O’Flaherty from the Boston firm, Goulston & Storrs. Mr. O’Flaherty stated that in addition to being grandfathered, Goodale’s passed the Powers Test, the prevailing metric in determining nonconforming land use in Massachusetts courts. The Powers Test asks if current land use is the same as before zoning was initiated, if the land use is similar in quality and in degree, and if the land use drastically increases the impact on surroundings.
“There has not been a drastic change here,” Mr. O’Flaherty said. “It is not the case that because the hole is bigger it is an expansion. A business is allowed to grow naturally. Goodale’s passed the Powers Test with flying colors.” Mr. O’Flaherty’s comments elicited a groundswell of grumbling from objecting abutters.
Mr. O’Flaherty also said that Goodales has substantially decreased production, which has resulted in a reduction of man hours and heavy equipment use. “2001 was our heaviest year, with 177,000 tons. Last year, 102,000 tons of material were produced,” he said.
As to environmental concerns, Mr. O’Flaherty noted that the plant is in compliance with myriad EPA regulations and has complied with the requests of the Massachusetts Natural Heritage and Endangered Species Program. He added that the plant has also implemented renewable energy “There was a coal-fired boiler back in the day,” he said. “Now there’s a solar array to run asphalt batching and the processing plant.”
The board also heard from a vocal contingent of Goodale supporters who cited the economic importance of the mining concern for the Island. Goodale’s is the sole supplier of sand, gravel, and asphalt on the Vineyard. They also spoke to the long history of altruism the Goodale family has on the Island. A number of the Goodale supporters who spoke were also abutters.
“I’ve lived at Little Pond since 1984,” Josh Flanders said. “Over the years Jerry had been 100 percent up-front about things. They haven’t increased their impact, they just continue doing what they do. I was fully aware of what was going on and that was my choice to buy and it hasn’t had an effect on me and my four kids. Jerry’s an honest guy and he’s helped a lot of people on this island.”
Michael Capen, a direct abutter to Goodales since the 80s when development around Goodale’s began in earnest, said anyone who didn’t want to live near a mining business should not have bought their property there in the first place. He added that Goodale’s donated 10 acres of their property to expand town water wells.
“I can’t imagine how we could do business paying for sand from off Island,” septic specialist Tim Peters said. “The average septic [installation] takes 300 yards. One ten-wheeler holds 25 yards and it’s $400 roundtrip.”
ZBA member Joe Re said that although the three tenets of the Powers Test were somewhat subjective, he was inclined to agree with Mr. O’Flaherty’s argument. “The nature of the sand and gravel mining is that when they empty out one area, they are going to go to another piece of their property,” he said. “It’s the nature of the beast. I don’t think they’ve stepped outside of the operation.”
Board chairman Andrea Rogers concurred. “I believe it’s the same use since 1948,” she said.
Although the board’s decision was unanimous, Mr. Chvatal expressed concern for the abutters. “This is such a coin toss,” he said. “The thing that gets me is the proximity issue. I understand the nature of the beast, but I wonder if there isn’t some sort of impact. I would love to secure an agreement for a different fence or adding trees, but I cannot do that in this hearing.”
“We were surprised at the unanimous decision,” Richard Fried said in a phone call with The Times. “We weren’t looking to shut this down, we were just hoping to get some concession — a certain amount of forest left, and certain assurances on pollution controls. We’re not just concerned about the law. We’ve learned government regulations aren’t always safe.”
Mr. Dunn, who has announced his retirement, did not attend the Thursday night hearing due to a previous engagement.