Carver To Hold Annual Town Meeting
Solar, Battery, and Earth Removal Articles Dominate Town Meeting Warrant
[Readers, this is a very long article about the Carver Town Meeting; I am making it available for free to all because it is of essential public interest. However, if you would like to either sign up for a paid subscription, you can click one of the “Subscribe” buttons in the text; or if you would like to leave a tip, you can do so here:
https://www.paypal.com/paypalme/plymouthcountyobserv,
also available by clicking here.
Thank you so kindly to those who have already either subscribed and/or donated; I deeply appreciate your generosity.
Because it is so long (around 15 pages) I encourage you to skim as necessary. — Ed. ]
( CARVER ) — Carver will hold its Annual Town Meeting on Tuesday, April 11th, 2023, at 6 p.m. at the Carver Middle/High School. The Town Meeting will consider a number of Articles, of importance both to the Town, and to the region as a whole, including a number relating to sand and gravel mining, solar energy production, and lithium ion battery storage units.
Some residents and local activists have long objected to what they view as lax regulation and enforcement of the Town’s bylaws relating to earth removal, open government, and preservation of the 199 square mile Plymouth-Carver sole source aquifer, the source of water for well over 100,000 people in the region, and these matters will come before the Town Meeting, the directly democratic legislative branch of the Town.
Meanwhile, according to a credible source, on March 23rd, investigators from the Massachusetts Inspector General’s Office made unannounced visits to Carver Town Hall, allegedly seeking records relating to earth removal. A separate source, who has raised questions around sand mining in a nearby Town in the region, likewise confirms that he was contacted by the Massachusetts Inspector General’s Office in relation to allegedly illegal sand mining by the cranberry industry.
( Monument to Carver’s soldiers and sailors of the Civil War; photo credit — J. Benjamin Cronin. )
Fiscal Matters, Invasive Species, The Mullin Rule, Scenic Roads
Articles 2 through 8 deal with fiscal issues, including the Town’s budgets and other financial matters.
Article 16 will clarify the bylaw relating to the Carver Town Meeting’s quorum for matters requiring borrowing; the quorum for borrowing-related matters is 150 qualified voters; for all other matters, it is 75 voters.
Articles 17 through 23 would amend the Town’s Wetlands Protection Bylaw to include language relating to the prevention of invasive species; this would become part of the purview of the Carver Conservation Commission.
The so-called Mullin Rule is dealt with in Article 25. The Mullin Rule allows a member of a Town Board or Committee which acts in an adjudicatory capacity to miss one meeting of the Board or Committee and to still rule on the larger matter (provided they follow procedural requirements under the statute). The Mullin Rule, according to my understanding, must be accepted by individual Towns, including Carver.
Article 26 would designate a number of roads in the Town of Carver as Scenic Roads (pursuant to M.G.L. c. 40 Sec. 15C), “to protect streets, trees and stone walls within the right of way …. in order to preserve the natural character and physical appearance of said roads.”
The streets designated as Scenic Roads under the Article would be: Center Street, Cranberry Road, Crescent Street, Cross Street, Federal Road, Green Street, Holmes Street, Lakeview Street, Mayflower Road, Meadow Street, Old Center Street, Plymouth Street, Rochester Road, Savery Avenue, Shaw Road, Wareham Street, Wenham Road, High Street, and Indian Street.
The Planning Board voted 3-0 to recommend the Article.
( Scenic resources and unique environments of Carver, via the Town Meeting warrant; photo credit — Town of Carver. )
Solar and Battery Articles, Round I
Articles 27, 28, and 29 relate to solar power and battery storage. Article 27 deals with solar; Articles 28 and 29 deal with lithium ion storage batteries. They introduce, essentially, a set of changes to the bylaw that would constitute a regulatory regime for solar and lithium battery energy storage. The Articles are complicated, and I certainly have great respect for the extensive work and deep thought that clearly went into them.
Ultimately, however, though I am not a Carver resident, if I were, I would be inclined to think the Articles are weighted too far towards the energy industry, and too far away from the Town’s ancient rights. In my view, the statement of purpose in Article 27, included at 3580.10 in the bylaw, is telling, and representative; the first clause of the first sentence of this section reads:
“The purpose of this bylaw is to promote the creation of new large-scale ground-mounted solar photovoltaic installations (LSGMSPI) including conventional and SMART dual use…..”
The section likewise states that its goal is to “minimize impacts on scenic, natural and historic resources,” but to my way of thinking, that is contradicted, indeed, made logically impossible, by the goals outlined in the very first sentence of this section.
Because the three Articles relate to zoning, they require a two-thirds vote to pass. The Planning Board voted 4-0, and the Solar/Battery Energy and Solar Systems Committee voted 8-1, to recommend Article 27. The Planning Board voted 4-0 to recommend Article 28. The Planning Board voted 4-0, and the Solar/Battery Energy and Solar Systems Committee voted 7-2, to recommend Article 29.
The Regulatory Environment: Energy Colonialism and “Green” Big Business
It is important to note certain features of larger regulatory directions in the Commonwealth, and precisely what Carver is up against.
Massachusetts, like the rest of New England, is facing the question of a transition away from fossil fuels given the relation between atmospheric carbon and the heating of the average temperature of the atmosphere and oceans. Massachusetts, in particular, has advanced extremely ambitious emissions (or lack thereof) goals, aiming for net zero emissions by 2050.
That policy goal is a worthy one. The ways in which it is implemented, however, often are not, and they are in fact perversely contrary to a transition to an economic system that takes into basic account the fact that we exist on a finite planet, the physical carrying capacity of which is not unlimited. Destroying carbon sinks, like globally rare pine forests, in order to build putatively “clean” energy, is the climate equivalent of robbing Peter to pay Paul.
Much of the disconnect between Boston political and financial circles, and the people of many more far-flung corners of the Commonwealth, may stem from the fact that Massachusetts is a state significantly dominated by one of the two major political parties, as well as a state where, unlike New York or Illinois — or New Hampshire or Maine or Vermont, for that matter — the largest city, the financial center, and the political capital of the state — Boston — are all one in the same. In this sense, Massachusetts more closely resembles Britain or France, with their overwhelming domination by London and Paris respectively, than most American states.
What this means in practical terms is that the policymakers inside of Route 128 often have intensely parochial views, and little to any real knowledge of what the actual results on the ground, in places like Carver, of state policies actually are. That is how we get the phenomenon of “clean” energy being used as the predicate upon which forests are actually destroyed.
Energy colonialism, or green colonialism, is a term scholars have used to denote when the transition away from a fossil fuel based economic order is predicated upon the exploitation and exploitation of populations and regions that are, from the point of view of the financial-political centers, peripheral: Indigenous groups, rural Americans, African Americans, Latino Americans, and those struggling with poverty. A prime example is the seemingly endless saga of the Central Maine Power Corridor, in which for Massachusetts to meet its zero emissions goals, hydropower from Quebec, itself produced by the vast and destructive flooding of the Native Cree people’s lands in norther Quebec, must be brought via a vast transmission line, to be built through the Maine wilderness.
This, unsurprisingly, attracted opposition from Mainers, who defeated the measure at the ballot box (it is now set to pass through the court system).
Yet conspicuously absent in the various plans for transition are real acknowledgement that we cannot simply wish away our energy problems by re-labelling destructive practices “green,” and by simply asking nothing in the way of sacrifice from affluent metropolitan social strata. It is striking that it is Native and rural people, and not the affluent inhabitants of certain metropolitan ZIP codes, who must pay most of the cost; meanwhile, Boston and Cambridge and Somerville and other metropolitan communities quite literally light up empty buildings in the middle of the night.
Meanwhile, Towns like Carver find their forests and their very topography destroyed as part of that transition. This hardly seems like justice.
Which brings us to an event held last Thursday, April 6th, in Boston, hosted by the State House News Service and the political newsletter MASSterlist, and sponsored by energy companies Avangrid, Enbridge, National Grid, and South Coast Wind, and consulting firm Benchmark Strategies. The event described itself in the following terms:
“The path to achieving decarbonization goals and ultimately a net-zero Commonwealth faces a challenge: The arduous and lengthy process of upgrading the local and regional electric grid and permitting new energy infrastructure. The recently passed Inflation Reduction Act and the Bipartisan Infrastructure Law lay the financial incentives and support to expand ambitious infrastructure investments that can usher in a clean energy future. But projects typically encounter an uncertain fate on the ground, including a maze of litigation and unnecessary permitting delays that are making climate goals increasingly difficult to meet,” said the promotional material.
“The permitting reform challenge involves balancing critical review processes that ensure equitable stakeholder participation with the urgency to upgrade current infrastructure and install the next generation equipment,” said the organizers.
( Promotional material for the event; photo credit — MASSterlist. )
A few things must be noted. When Big Business begins to talk about “reforming” any kind of critical regulatory apparatus, it is time to make sure you have your wallet and to run in the other direction.
( Who pays the piper, calls the tune: corporate sponsors of the event; photo credit — MASSterlist. )
Remember: we have seen this playbook before – we have seen, in my own adult political lifetime, the massive deregulation of the financial sector via the repeal of the Glass-Steagall Act in 1999, and the (utterly unsurprising) financial crash that came as a result in 2008. Just in recent weeks, we have seen bank runs on under-regulated banks.
When energy companies say “reform,” what we should read is: “the destruction of local democracy and rule of law so that greenwashed corporate energy interests can enrich themselves further.”
Affordable Housing and State Mandates
Article 33 relates to affordable housing, specifically within proposed Town House projects. The Article would increase the percentage of units required to “meet the State’s affordable housing requirements for low to moderate income” from 10% to 15%. The Article requires a two-thirds vote to pass.
Like Town’s throughout the Commonwealth, Carver faces two state mandates relating to housing that significantly affect the life of the Town. The first is M.G.L. Chapter 40B, which allows a developer to circumvent local zoning bylaws if a given project has 20-25% “affordable” units, using a formula that skews the definition of “affordability” by using the mean income for the greater Boston metropolitan area. Because we have, even within single Towns, real extremes of wealth and poverty in this state, this has had the effect of skewing the entire average, such that housing the law considers “affordable” is often not, in fact, affordable to the individuals and households who need it.1
Chapter 40B is over fifty years old, but a newer law, the MBTA Communities Law (M.G.L. c. 40a Sec 3a), likewise will affect Carver going forward. Under the law, because Carver borders Kingston, home to a commuter rail station, it will be required to zone for a certain amount of dense (15 units per acre), by right multi-family housing units.
In Carver’s case, the required number of units to be zoned under the law is 235 (note that “zoned for” and “built” are not the same thing).
This is the larger context in which the Town will consider the affordable housing related matter before it.
Citizens Petitions: Open Government, Solar and Battery Moratoria, Real Estate Taxes
Articles 35 through 43 are citizen’s petitions articles, which are brought per M.G.L. c. 39 Sec. 10, relating to issues around environmental preservation, aquifer protection, and open government.
Article 35 is quite an extensive, and in my view, significant piece of legislation relating to government in the Town of Carver. It would make additions to the Town’s bylaw to explicitly affirm the rights contained in Article 19 of the Massachusetts Constitution, which states that “The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.”
In Carver, Article 35 at the 2023 Annual Town Meeting, is divided into five parts.
The first part would add the following language to the bylaw:
“Citizen Participation will be allowed at all duly called meetings and there will be no restriction on the topic presented to any board. Any topic of importance to any resident may be present at any public meeting.”
The second part of the article relates to recording of Town Government meetings by Area 58, which provides community access media for Carver, Plympton, and Halifax. The proposed language would require all of the meetings of a number of Town Boards and Committees — specifically, the Select Board, the Conservation Commission, the Council on Aging, the Earth Removal Committee, the Finance Committee, the Planning Board, and the Redevelopment Committee — to be recorded, regardless of whether or not the Chair of the body in question approved of that recording. Moreover, the simultaneous scheduling of meetings of the eight aforementioned bodies would be prohibited.
The third part of the article concerns citizen requests to include items on agendas of the several boards of the Town: “Any agenda item relative to Board jurisdiction, requested by a Citizen of the Commonwealth will be placed on the agenda of any Board or Committee within 72 hours of a meeting and addressed no later than the next scheduled meeting.” In addition, the fact is emphasized that the Chair of the various boards and other Town bodies “will not have any discretion to bar or otherwise prevent any citizen from placing an item on the agenda.”
The fourth part of Article 35 is quite significant. It asks if the Town wishes to vote to “terminate the services of KP Law and seek the services of a new Town Counsel.” The Article would require at least four law firms be interviewed. The petitioners, in their explanation of this portion of the Article, express their deep dissatisfaction with aspects of the services rendered to the Town of Carver by KP Law.
The fifth part of the Article asks the Town to “vote to approve that prior to any by-law concerning any Board or Committee’s personnel the current by-law will be enforced in its entirety. Any future change to any by-law will be enforced immediately, either upon request of a resident OR by any member of any Board or Committee or appointing authority.”
In addition, “to ensure that any and all requests for permits, site plans, solar installations or any other request to any Board or Committee where the committee failed are valid,” the Article states that “the Select Board will have an independent third-party audit performed to ensure that the Town is protected against any future litigations.”
The petitioners, in their explanation of this fifth part of the Article, emphasize that the bylaws are the statutes of the Town, and are the law, and may not be followed or not followed depending upon the view of individual members of the Town Government.
The petitioners specifically point to the bylaws concerning four areas: the creation of a vacancy on a board by three consecutive absences by a particular individual; the sitting of an individual simultaneously on two boards with permitted authority; the prohibition against members of the Finance Committee from sitting on other boards or committees; and the requirement that all members of Boards and Committees be sworn in prior to the commencement of their duties.
Article 36 is a citizen’s petition that would significantly tighten the regulations upon lithium ion battery energy storage facilities in the Town of Carver, coming in the wake of the proposal to site such a facility in the Town, immediately proximate to a cranberry bog.
Article 37 likewise petitions to see if the Town will amend the Zoning Bylaw to prohibit large scale ground mounted solar photovoltaic installations larger than 5 acres.
Article 38 would put an 11-and-a-half month moratorium on dual use and floating photovoltaic solar panel construction and installation in the Town, to prepare more time to study the effects of these new forms of energy production.
Article 39 would reinstate the 200 foot setback requirement for solar installations in residential zones in the Town.
Article 40 makes changes to the use regulation schedule, Sec. 2230, of the Carver Zoning Bylaw, pursuant to the moratoria, should they pass.
Article 41 is a further battery moratorium citizen’s petition article.
11-and-a-Half Month Earth and Gravel Removal Moratorium; Real Estate Taxes
Article 42 would put an 11-and-a-half month moratorium on sand and gravel mining in the Town: “No earth shall be removed from any lot in the Town of Carver for a period of eleven and one-half months from the adoption of this Section by Town Meeting, except as provided in Section 9.1.8 (A), (B) or (C).”
Section 9.1.8 provides conditional exemptions from the bylaw’s requirements relating to Earth Removal; sub-section A allows for earth removal of “less than 200 cubic yards for a single or two family lot or less than 1000 cubic yards for an industrial, multi-family and/or commercial project.” Subsection B allows earth removal necessary for the reconstruction of existing streets and for utility installation; and subsection C allows earth removal “performed in connection with any Town, state, and/or federal projects.”
( Sand mine operated by A.D. Makepeace off Hammond Street in Carver; photo credit — Community Land and Water Coalition. )
Carver Concerned Citizens issued a strong statement of support for Article 42.
“ Throughout Carver, illegal sand and gravel mining is harming our drinking water, health, and community. Town regulators refuse to enforce the Earth Removal Bylaw, Article 9.1, that strictly limits and controls earth removal,” wrote the organization on its website.
“This Article halts all commercial earth removal for 11 ½ months to give the Town an opportunity to assess the damage and to figure out how to control these operations,” it said.
Other voices in the debate have argued against the moratorium.
“It's my belief that the AG's office will disallow these petitions. Look who is Governor and look how much farther left the new AG is. Renewable energy and growth in housing is Healey's number 1 priority. Do you honestly believe their going at go for these moratoriums? They didn't last year. This state wants zoning loosened to allow more housing (which I disagree with due to infrastructure costs to the town). Restrictive zoning will not fly,” said Alan Germain, Vice Chairman of the Carver Conservation Commission, on April 9th on the Fair and Open Government for Carver Facebook page run by M.B. Prescott (Ms. Prescott has done the entire Town and region a great service through running her site in a way I have always found genuinely fair, decent, and tolerant, and I appreciate her hard work).
Article 43, the last of the citizens’ petition articles, deals with the question of real estate taxes, particularly whether or not the thousands of acres in Carver that are characterized as agricultural land (and therefore subject to a preferential tax rate) are actually being used for agricultural purposes, and not for other purposes, such as commercial sand and gravel mining.
The proponents note that according to Carver’s 2017 comprehensive master plan, approximately 12,212 acres were claimed as in agricultural use, or ~48% of the town’s total of 25,422. However, according to 2014 data from the Cape Cod Cranberry Growers’ Association, cited by the petitioners, there were approximately 3,400 acres of cranberry-agricultural lands in the Town. This leaves a difference of approximately 8,812 acres of land that is claimed as agricultural, but is apparently not being used for cranberry agriculture.
This article asks the Town to deal with this discrepancy by urging the Board of Assessors to exercise their authority under the General Laws (at c. 59, Secs. 21 and 38), “to retain an independent professional forensic auditor to review all past and current classifications of lands” characterized as agricultural under Chapter 61A.
The petitioners noted that the Select Board approved an increase of 15% in residential real estate taxes for Fiscal 2023, and that “failing to ensure that lands enrolled in ‘agricultural or horitculture use’ under Chapter 61A are actually used primarily and directly for agricultural purposes and not primarily for commercial or industrial purposes conflicts with this reported revenue capture imperative.”
“Enrolling lands in Chapter 61A as agricultural use when they are used primarily and directly for Commercial Mining would deprive the Town of real tax revenue owed by landowners using their land for commercial and industrial operations while claiming an industrial use. This forces the taxpayers of Carver to bear an unfair burden of the Town’s expenses while letting cranberry landowners and sand and gravel mining operators evade their fair share of taxes,” argue the proponents.
Historical Precedent Supports the Broad Authority of the Town to Regulate Its Natural Resources
One of the arguments that is frequently advanced is that Carver has mined sand since the 18th century, which is certainly true; what is equally and emphatically true is that every Town in the region spent significant parts of its early Town Meetings regulating common natural resources (which certainly, in 2023, includes aquifers, forests, and landscapes, per Art. 97 of the Massachusetts Constitution). Here, for example, is the Plymouth Town Meeting of May 22nd, 1704, when both Plympton and Carver (as well as Wareham and Kingston) were still part of the Town of Plymouth:
“Att sd Metting Itt was voatted yt [that] all The Cedar Swamp Within ye Township shall be Devided acording To former Town Ackt [account] and yt [that] There shall be no Sedar Timber felled upon sd [said] Towns Commons from this date To ye first of Aprill Next Ensueing on penalty of Ten shillings per Tree for Every default & Samuel Stirtevant & George Bonam are Apinted to be helpfull to the surveyor in dividing sd swamps & the persons hereafter Named Are desired & apointed to have Inspection of sd swamps to se the Towns order herein above Mentioned Respecting the Sedar Timber duly Executed The persons are Major Bradford Left Shurtlif Samuel Stirtevant John Stirtevant Caleb Loring Elkanah Cuishman & George bonam & none of sd Comitie [committee] May Cut aney sedar timber on forfeiture of 20 shillings per tree[.]”2
In other words, from an early date, before Carver, or even Plympton, were incorporated as Towns, the Town Meeting of Plymouth, the lineal ancestor of Carver’s Town Meeting, was establishing a precedent: a common resource, in this instance cedar trees – valuable for shingles and maritime and household carpentry) – was declared off limits from harvest prior to the Town’s ability to decide how to fairly distribute it.
I have not had the occasion to look at the early Town Records of Carver or of Plympton. However, here is a relevant precedent from a sister Town, Pembroke, from a Town Meeting held on July 28th, 1752, wherein the Town of Pembroke considered the question of the depletion of common bog iron resources located in what was then called Jones River Pond, and is today called Silver Lake. Here is the Pembroke Town Meeting:
“On July 28th, 1752, the Town Meeting “Voted that John Foord Josiah Keen & Danll Lewis Jur. Esqr. or the major part of them be a Committee fully Authorised in Behalf of this Town to Demand an Account of all & every Person or Persons that have been concerned in Digging or carrying of[f] of Iron Oar in the Pond commonly called Jones River Pond within the Limits of this town & to forewarn them & all others concerned (in the Name of this Town from Digging or carrying of[f] said Oar) And to make discovery & Prevent all & every Person or Persons from carrying of[f] said Oar & to Search records & take fair Copies as they think necessary touching said affair & to make Report of their doing at the Adjournment of this meeting....”
So wherever you come down on the particular questions before tomorrow night’s Town Meeting, it should be noted that from an early date, the several Towns, via their Town Meetings, have sought to regulate, including via moratoria, the various natural and common resources of their territories.
We should note likewise that while the sand per se is located on private property, that the aquifer is a classic common resource, and though not a lawyer, I would simply note that the common law, in so early an authority as Bracton in the 13th century, recognizes the right of neighbors to be free of trespass. The tort of nuisance at common law is likewise of great antiquity.
I think these are important facts to note when any appeal to precedent is made.
The Carver Annual Town Meeting will be held tomorrow evening, Tuesday, April 11th, at 6 p.m. in the auditorium of the Carver Middle/High School, at 60 South Meadow Street.
A further factor to consider is that when Chapter 40B became law in 1969, the United States was a demonstrably more equal society in economic terms. Economists use a measure called the Gini Coefficient as a measure of income inequality in a given society (a 0 is complete income equality, with everyone having the same income; a 1 is the inverse, with one person having all income in the nation). The Gini Coefficient in 1969, according to the Federal Reserve Bank of St. Louis, was 0.35; according to the Census Bureau, in 2021, the Gini Coefficient was 0.49. We are therefore a significantly more unequal society, including in Massachusetts, in ways that are relevant for Chapter 40B.
In short, income averages will be skewed more by the extremes of wealth in the 2020s compared with the 1960s, when Chapter 40B was written.
William T. Davis, Records of The Town of Plymouth, Plymouth, Mass. Avery & Doten, 1889, p. 320.