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By special permit: gravel gavel

PLYMOUTH – Do cranberry growers who are removing sand and gravel to create more cranberry bogs really need a special permit?

That’s a question nobody wants to touch these days, as cranberry operations in different parts of town truck away sand and gravel in preparation for bog construction.

Neighbors in the Black Cat Road area complained about noise and claimed the truck traffic from Ocean Spray grower Eric Pontiff’s Black Cat Road site is a nuisance, when he went before town boards requesting a special permit to remove more sand and gravel to build more bogs. Pontiff, of E.J. Pontiff, opted to work with his neighbors, promising to enclose pumps in pump houses rather than having them outside, and restricting the property to the cranberry bogs and sand and gravel operations currently on site – no wind turbines or cell towers. These conditions went above and beyond the town’s regulations pertaining to sand and gravel removal.

But do cranberry growers actually need special permits to remove sand and gravel when the operation is aimed at creating more farmland?

The Massachusetts Right to Farm Law states:

“No zoning ordinance or bylaw shall regulate or restrict the use of materials or methods of construction of structures regulated by the state building code, nor shall any such ordinance or bylaw prohibit, unreasonably regulate or require a special permit for the use of land for the primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture, nor prohibit, unreasonably regulate or require a special permit for the use, expansion, reconstruction or construction of structures thereon for the primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture …”

Plymouth requires a special permit for sand and gravel operations, and has treated sand and gravel work as separate and distinct from cranberry operations, even when one is tied to the other. In short, the town treats the sand and gravel operation as a separate business, not as an extension of the farming operation. Growers maintain they can’t build more bog land without first removing sand and gravel to flatten the area so the bog is closer to the groundwater. Without the sand and gravel removal there would be no additional bogs, they argue, so the sand and gravel removal is part and parcel of the farming operation.

Growers, thus far, haven’t pushed the point. They’ve cooperated by requesting special permits for sand and gravel removal and abiding by the conditions set forth by the permit and the ZBA. But, with some neighborhoods up in arms over these operations and antagonism building, the question has been raised: Do growers really need to cooperate? If a grower refused to get the special permit and simply went ahead with the sand and gravel work, the town could, of course, take the grower to court.

But the $6 million question is: Would the town win?

Earlier this month, during a Planning Board meeting, Senior Planner Valerie Massard noted that the town’s counsel, Kopelman & Paige, has opined that, should the issue wind up before a judge, the town would have just a 50 percent chance of winning. It doesn’t take a mathematician to understand that means the grower has a 50 percent chance of winning as well.

That may come as a surprise to some residents up in arms over sand and gravel operations in their neighborhoods, because the ramifications of losing such a case could be sweeping. If growers push the issue with Plymouth or any of the neighboring towns and win in court, it could set a precedent – meaning the town could not regulate sand and gravel operations linked to building more cranberry bogs – at all.

The town’s current system of requiring a special permit for the activity mandates operation during certain times of day, limitations on truck activity, restrictions on how much land can be disturbed at any time and other regulations aimed at minimizing the disturbance. The town’s Planning and Building departments keep tabs on these operations to ensure they follow the guidelines and additional conditions set by the ZBA.

Take away those controls and, town officials concur, neighborhoods currently annoyed with a sand and gravel operation could find themselves face to face with an even worse scenario.

It has, therefore, become a game of how-far-do-you-push. Pontiff noted that farming, like cranberry operations and the sand and gravel work that creates them, are exempt from local zoning since they fall under the umbrella of agriculture. A cranberry operation, with its sand and gravel component, can legally be situated in a residential area, industrial zone or anywhere in between. Farmers like Pontiff, who aren’t interested in selling off tracts of land to development, are also preserving the rural landscape and keeping taxes down, he added. If he had elected to build single family homes on the property instead, residents would be faced with much more upheaval and higher taxes to cover the services required by all those new residents. Pontiff also noted that, as requested, he gifts the town 10 cents per yard of sand and gravel removed to set aside for any road damage the operation may generate. He said he’s happy to abide by regulations that are reasonable.

“My approach is I want to work with my neighbors any way that I can,” he added.

Cape Cod Cranberry Association Executive Director and Ocean Spray grower Jeff LaFleur confirmed that growers, by and large, all want to work with towns and not buck the tide of special permits and regulations. The anger kicked up by some neighborhoods, however, has added a list of additional conditions to one grower’s operation, raising the question of whether the cooperative approach will continue.