Neighbors fight Working Earth decision

Bona fide agricultural use in question at 55 acre property.

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The Oak Bluffs zoning board of appeals continued a hearing on a Goodale property.

A Feb. 17 zoning board of appeals (ZBA) hearing about the legality of activity on a 55-acre property in Oak Bluffs has resulted in no decision, and a continuance to March 16.

An attorney for neighbors disgruntled by alleged activity at the vast property, and an attorney for Working Earth Organic Gardening & Landscaping Inc., a user of the property, each slung accusations at the other’s clients during the hearing.

The ZBA took up the matter after a group of neighbors appealed a usage decision made by the town’s building inspector. The decision found that Working Earth’s use of the property was permissible as “agricultural,” even though several other property users were deemed in violation of zoning and ordered to cease and desist their activity. The property, which is on Edgartown–Vineyard Haven Road, is zoned R3 residential.

The building inspector found that Working Earth’s use of the property was protected under an amendment to Massachusetts General Law commonly called the Dover Amendment. The Dover Amendment basically prohibits zoning from restricting agricultural, educational, and religious use of land. 

For agricultural exemptions, the amendment states in part, “the use of land for the primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture, or viticulture.” 

Jonathan Sweet, attorney for neighbor Ben Scott and others, told the board there has been “conflicting testament” as to whether agriculture was truly occurring on the property. Sweet described the building inspector’s Working Earth decision as an “erroneous” determination. 

Sweet said the drone photos of the property show activity associated with landscaping storage:

“We have piles of stone, we have piles of loam, we have piles of mulch, firewood, bluestone, all the things you would expect to see in a landscaper’s storage facility. And no agriculture happening — no horticulture. There are no plantings happening here. It’s exactly what we complained about when we initiated this appeal.”

Since the last hearing, Sweet said, some trees have popped up on the property “coincidentally or not, we don’t know. The way the timing works out, it certainly looked like someone scrambled down there, cleared some earth, and put some trees in the ground to make this agricultural.”

Howard Miller, attorney for Working Earth, said the activity his client has engaged in on the property “clearly” falls under horticulture, and is protected under the Dover Amendment. Miller said the Dover Amendment covers “everything incidental” to Working Earth’s horticulture activities. 

Miller said he felt “very strongly” that the neighbors “really stepped out of line” when they commissioned drone footage. Miller said using a drone “really invaded the privacy” of Working Earth and Goodale’s. Miller asked how the neighbors would feel if drone shots were taken of their backyard activities. “They wouldn’t be very happy,” he said.

Miller also said the neighbors have said Working Earth has been lying when the company hasn’t been. Miller argued that the plants alleged to have recently appeared have actually been on the property for a decade.

Judith Villa, who runs Working Earth, described the Goodale family as “generous and helpful” in giving her space, and in previously giving other contractors space. 

“So all those issues that people have been talking about actually has nothing to do with me,” Villa said. Villa said she was perplexed by people saying they still hear noise such as the back-up beeping of heavy machinery, because all those other contractors were expelled from the property.

“What they’re talking about is the past, and that’s over and done with,” Villa said. She added folks may be hearing noise from another property and blaming her company: “And that’s really unfair.”

Villa said she wished the neighbor’s attorney had come to her first to get to the bottom of the problem. Villa also said any tactical planting of trees to justify her company’s presence is a “bunch of crap.”

She said she isn’t doing anything on the property that she hasn’t previously been doing “for the last 10 years.”

“There was absolutely no growing of any type of plants there [at] all since last March,” neighbor Pat Ingalls said. 

Ingalls complained of routing beeping noises. “I’m hearing the noise on a very regular basis up until just the other day,” she said. Ingalls described the operation there as more akin to construction, as opposed to landscaping. 

Neighbor Tom Juster said, “The noise has not let up.”

Juster also said the use seems more commercial than agricultural, and seems like it has increased. 

Property owner Peter Goodale said he previously had a permitted composting pile on the property, but stopped using it because he wasn’t making any money with it. Goodale said there may also be abandoned material from the ousted contractors on the property, but that material isn’t associated with Villa’s company. 

“I did make the mistake of allowing the contractors in there,” he said. “Everybody is so desperate for space.” Goodale said he gets inquiries for space on a “weekly basis.”

Landscaper Dana Mylott expressed sympathy for Working Earth. Mylott said landscapers “have a very hard time establishing a footprint on this Island,” and shoulder high costs, especially in excise tax. 

“I pay $8,000 a year in excise tax. I’m told I cannot park in my own town from 2 am to 6 am. So I [had] nowhere to put my trucks,” he said. Luckily, he said, he was able to get a special permit to park his trucks near his house, but others aren’t so fortunate. 

Mylott was critical of what he felt was a general opinion about landscapers being out of sight until needed. “They don’t want to see you, but they want to use you,” he said. 

He thanked the Goodale family for keeping the land undeveloped, and said under other circumstances the land was potentially ripe for a subdivision. “Is that what the neighbors want?” he asked. 

Mylott also said he thinks much of the noise neighbors hear can be attributed to another area property. 

Goodale said Working Earth uses about one acre of the 55-acre property. He also said firewood was cut and split there, but it wasn’t entirely clear if he or Working Earth was doing this. 

Goodale said he adhered to the building inspector’s order to remove the contractors from the property except for Working Earth. He also said he paid fines for the time the contractors were there.

Goodale said heavy equipment has been at work on neighboring land, and the neighbors may be misassociating that activity with what occurs on his land. 

ZBA chair Llewellyn Rogers said the board will consult with town council ahead of the March continuance of the hearing. 

2 COMMENTS

  1. The Zoning Board of Appeals said Town Counsel asked for the following answers to be submitted in/or by the next March Meeting.
    1. How much percentage or area of land is Working Earth Using?
    2. How much land is the proposed building on?
    3. Written documentation of what the Verbal Rental Agreement is between Goodales and Working Earth.
    4 What active town permits does Goodales have on this portion of land.
    5. What has Working Earth done on this portion of property over the last 10 years.
    6. What is stored by Working Earth on the property and what is it used for.
    I may have missed a few question as I was trying to write them down as Board Member Peter Yoars was asking at the end of this meeting. This was on Zoom and it was difficult to hear the Board Members and the Public.

  2. According to the lawyer who said the trees have been there for 10 years sounds to me like they are just trees growing in the ground. Are they fruit trees? then yes. Otherwise that does not pass the smell test of agricultural use it comes down to we know what agricultural use is when we see it and we clearly see a landscape contractor using the property.

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