Martha’s Vineyard Commission to Goodale’s: keep digging

The Goodale Construction Company sand and gravel mining operation off Edgartown-Vineyard Haven Road in Oak Bluffs, at the peak of operations in 2008. — File photo by Tim Johnson

Members of the Martha’s Vineyard Commission (MVC) land use planning committee made it clear at their meeting Monday that, concerning recent activity at the Goodale Construction Company sand pit, there is no relevant permitting issue eligible for MVC review.

The committee, including commission members, makes a preliminary review of projects that have been targeted for full MVC consideration.

The committee voted 11-1 to recommend that the full commission reject the request of the Oak Bluffs selectmen, following questions and criticisms from neighbors of the decades-old business, to review the sand and gravel mining operation off Edgartown Vineyard Haven Road as a development of regional impact (DRI). The full commission will act on its committee’s recommendation at its next meeting.

Commission member Linda Sibley of West Tisbury, who in the past has supported an expanded definition of what constitutes a DRI and the MVC’s authority to review projects, explained her vote to reject DRI review in this instance.

“There is a huge regional impact, but it’s an ongoing regional impact,” Ms. Sibley said. “This is not what the MVC was chartered to do, to go back and in effect retroactively judge an ongoing project.”

Commissioner Holly Stephenson of Tisbury, a retired former planner, was the lone vote favoring MVC review as a DRI.

“How can you look at the Goodale pit and say that’s not a regional issue,” Ms. Stephenson asked. “The issue of how long they’ve been doing it is irrelevant. Their grandfather clause does not apply to public safety or public health. Because you’ve been doing it for 30 years doesn’t mean its safe.”

The Goodale mining and manufacturing operation has come under scrutiny in recent months after the company began clearing land to mine more construction material. They fenced in the remaining part of their 100-acre parcel, and cut a new road for access to the Little Pond neighborhood, which abuts their property, raising the ire of neighbors.

The operation began in the 1930s and the Goodale family has owned it since the 1950s. According to Oak Bluffs officials, the land use is exempt from zoning regulation because it pre-dates zoning laws.

At the request of neighbors, the Oak Bluffs board of selectmen asked for MVC review (April 27, “Goodale’s sandpit goes to MVC”) based on two provisions of the MVC checklist, used to determine whether a development is of regional impact. Such a review is triggered if there is an increase in intensity of use, or if the land is protected as a wildlife habitat. Both are concurrence reviews, meaning the MVC could reject the request for review, or accept it, hold public hearings, and issue a permit with conditions.

Monday’s recommendation included an offer to the town and its neighbors for MVC staff help in sorting out some of the jurisdiction and safety issues.

Not so neighborly

Land use planning committee (LUPC) meetings are informal, and often attract little public attention. It is a preliminary step in the formal MVC review process where applicants seeking a development permit discuss a project informally before official public hearings and deliberation.

But neighbors concerned about property values and safety in the Little Pond neighborhood packed the small meeting room Monday. Also jammed into the room were supporters of the Goodale business.

Jerry Goodale and his son Peter, who operate the company, sat at a table facing the commission, wearing dusty work boots and well-worn work clothes. Between them sat Kevin O’Flaherty of the Boston, Washington, D.C., and New York law firm of Goulston & Storrs, who represents the Goodales. He wore a blue suit.

In a letter submitted to the MVC, Mr. O’Flaherty rejected the contention that the company’s work represents a change in intensity of use. “The periodic clearing of vegetation,” Mr. O’Flaherty wrote, “has been part of the normal operation of business on the property for over 50 years.”

The attorney wrote that the Goodales mined 170,000 tons of sand and gravel annually during the peak of operations several years ago when two large projects were underway. In 2010, he said, they mined 116,000 tons of material, indicating a lessening, not an increasing intensity of use.

The letter also noted that the Oak Bluffs building inspector, health agent, conservation agent, and police chief had visited the site and found no violations of law, or no activity that required an application for a permit.

Mr. O’Flaherty cited MVC publications, and its website, which he contended make application for a development permit the necessary trigger of the DRI process.

“Without the application, the commission doesn’t have anything to do,” Mr. O’Flaherty told the commission. “You don’t have free-roaming enforcement authority.”

No permit, no process

The point was not lost on commissioner Bill Bennett of Chilmark, an electrician.

“They haven’t asked for a permit,” Mr. Bennett said. “What can we do? We’re powerless to say no to a permit, they don’t have one.”

Ms. Stephenson disagreed. “Maybe one of the questions is, should they be applying for a permit,” she said. “The fact that they haven’t, doesn’t necessarily mean they should not, and [that] they can do whatever they want.”

“We’re supposed to make a ruling on something they’re contemplating?” asked commissioner Christina Brown of Edgartown. “I don’t think that’s our role at all.”

Little Pond Road Association members expressed concerns about emissions from an asphalt plant on the property, lead contamination from bullets used during target practice on Saturday afternoon, contamination of wells, and destruction of protected habitat.

“Suddenly there was a fence, there was a road,” Jo Maxell said. “It’s true, we bought land near a sand pit, but it was so small, you couldn’t see it. We would just like to make sure they are following the guidelines and somebody is monitoring it. We continue to find that every one is passing the ball to everyone else, and nobody knows what’s going on.”

Legal limbo

While much of the debate was about whether the MVC has jurisdiction to accept the referral for review, and the commission began making a list of issues to refer to its attorney. But in the end, jurisdiction didn’t matter to the commission.

“I think we’ve got to use some common sense,” commissioner Lenny Jason Jr. of Chilmark said. “I don’t need a lawyer to tell me whether or not I have jurisdiction. I just don’t see a regional issue.”

It was Mr. Jason who moved for a vote not to accept the referral. He accepted an amendment offered by commissioner Ned Orleans of Tisbury, to offer the Goodale Construction Company and its neighbors help in sorting out jurisdictional issues.

Voting in favor of the motion were Mr. Jason, Ms. Sibley, Mr. Bennett, Mr. Orleans, and Ms. Brown, as well as commissioners John Breckenridge of Oak Bluffs, Fred Hancock of Oak Bluffs, Douglas Sederholm of Chilmark, Brian Smith of West Tisbury, Peter Cabana of Tisbury, and Camille Rose of Aquinnah.

The sole vote against the motion was Ms. Stephenson.