No Immediate Action on Plymouth and Carver Sand Mining Cases
Mixed Results; A.D. Makepeace Caught Misleading Plymouth ZBA, Public
(PLYMOUTH AND CARVER) — In separate hearings on December 7th, both the Carver Earth Removal Committee (ERC) and the Plymouth Zoning Board of Appeals (ZBA) declined to take immediate action to enforce municipal bylaws regarding sand and gravel quarries.
The results were mixed for opponents of mining, with neither body taking immediate action. Nevertheless, in Plymouth, A.D. Makepeace and Companies, the largest landowner in the region, with interests in real estate development, sand mining, and cranberry agriculture, were publicly shown to have been misleading the Board, the Town, and the broader community for at least a year, if not longer, and the ZBA’s patience with the company appears taxed to its limit.
In both Towns, local citizens have expressed grave concern regarding extensive and largely unregulated — and allegedly illegal — sand-mining activities, and the effect they are having on the Plymouth-Carver Sole Source Aquifer. The aquifer, at 199 square miles, provides drinking water for six towns and over 120,000 people. A broad array of Native people, concerned citizens, and long-time environmentalists have come together, forming a coalition in defense of the aquifer (a coalition, I should note, of which I am part).
( The Plymouth Carver Sole Source Aquifer; photo credit — the United States Environmental Protection Agency. )
Plymouth Zoning Board of Appeals Meeting
On the evening of Wednesday, Dec. 7th, the Plymouth Zoning Board of Appeals held a public hearing on a request by the environmental organization Save the Pine Barrens to enforce the town earth removal Bylaw and a 2014 permit with regards to activities by A.D. Makepeace Cranberry Company, of Wareham.
Makepeace, critics charge, has operated an illegal, 214-acre sand mining operation in South Plymouth, in the vicinity of Frogfoot Brook, proximate to the Wareham line. Makepeace claims its industrial scale earth removal next to Frogfoot Reservoir is an agricultural excavation to build cranberry bogs.
Like others throughout the region, the Frogfoot mine is predicated upon what critics charge is essentially a ruse: an agricultural exemption is claimed to evade municipal sand and gravel mining bylaws and regulations, while little in the way of actual agricultural activity results. Instead, the primary, and most profitable, activity in this and similar instances, is the mining of sand and gravel deposits.
The Geological and Economic Context
Sand is an increasingly rare and valuable global commodity, and the glacial landscape of southeastern Massachusetts is covered in it. Indeed, because cranberry agriculture requires regular applications of sand in order to keep bogs healthy and productive, and because it also requires large amounts of freshwater, large cranberry growers are almost by definition in control of valuable deposits of sand — deposits that sit directly proximate to the sensitive waters of the permeable, sole-source aquifer that provides the southern half of the County’s drinking water.
( The surficial geology of Plymouth County. Fluvial deposits, Till, Pine Hill deposits, and End moraines all contain large amounts of sand and gravel. Cranberries are primarily grown in areas of swamp deposits, i.e., peat; Note the close proximity of swamp deposits and ponds — i.e, the aquifer — and sand-bearing deposits in places like Carver and Wareham. Photo credit — Jim Turenne for the Soil Survey of Plymouth County, Mass. )
Cranberry agriculture has become far less profitable in recent decades than formerly. We can look at two graphs to get a picture of cranberry prices in recent decades. The first, using United States Department of Agriculture data, tracks national cranberry prices (in blue) and production (in red) since 1995; the second tracks Massachusetts cranberry prices between 1960 and 2014, which both happens to be where this data ended, and the year the Frogfoot Mine was permitted (though, we should note, it was permitted as an agricultural project, rather than the sand mine it actually is).
( U.S. cranberry production and prices since 1995, published Sept. 29th, 2022; photo credit — USDA Economic Research Service.)
( Massachusetts cranberry prices, 1960-2014; information from the USDA via the Cape Cod Cranberry Growers Association, available publicly at https://www.mass.gov/doc/crantaskforce-cccga-cranberry-task-force-briefing/download )
Cranberry prices have thus been both volatile and, on the whole, declining in recent years.
And while cranberry prices on global markets have been stuck in a multi-decade downturn, sand, with demand from construction in East Asia and fracking in North America skyrocketing, has seen precisely the opposite trajectory:
( Sand prices over the last four decades, via the U.S. Bureau of Labor Statistics and the Federal Reserve Bank of St. Louis; photo credit — The Federal Reserve Bank of St. Louis.)
According to Attorney Meg Sheehan, of Save The Pine Barrens, the volume of earth removal under the 2014 permit for Frogfoot — an agricultural rather than an earth removal permit — is enough to fill Gillette Stadium nearly three-quarters of a mile high. Moreover, within just two miles in Carver and Wareham, Makepeace has excavated at least 7.9 million cubic yards of sand and gravel, enough to fill a second Gillette Stadium another three quarters of a mile high. Makepeace uses the sand to supply its sand and gravel distribution business, Read Custom Soils, located about half a mile from the Plymouth site.
The issue of standing (i.e., of Save the Pine Barrens’ legal capacity to bring action against Makepeace) was alluded to, but not dealt with in depth.
Meanwhile, Attorney Sheehan argued that there were far broader issues in question here:
“The reason you have a zoning bylaw that has an Earth Removal permit requirement is to protect the public health, safety, and welfare, and the water, of Plymouth,” said Attorney Sheehan.
This was met with lack of concern from ZBA Chairman Michael Main, who said that “I don’t know where the sand went” that Makepeace excavated from Plymouth, and “I don’t know how much” sand was excavated. The subtext, as I interpreted it, was that Chairman Main was not particularly concerned where that sand went.
The Board did not get the required votes to uphold the Building Commissioner’s decision not to enforce the zoning bylaw, which required a super-majority, of four out of five votes; it received only three: Chair Michael Main, and Members Michael Leary and Peter Connor voted in the affirmative; Vice Chair David Peck and ZBA Member Edward Conroy voted against upholding the Building Inspectors’ decision. This leaves the appeal in limbo.
While Makepeace maintains that no sand mining is occurring or will occur on the property before this matter is resolved, as their record described below indicates, there are reasons to look with skepticism upon the claims of A.D. Makepeace.
Makepeace Caught Misleading Plymouth ZBA, Public
Despite the decision, the meeting was characterized throughout by a markedly different tone from the Board toward Makepeace and their lead attorney, Michael K. Crossen, partner at the international corporate law firm of Foley & Lardner.
In significant part, this was due to the arguments made and the evidence produced by Attorney Jonathan Polloni, of Senie & Associates in Falmouth, representing Save The Pine Barrens. Attorney Polloni was able to show that Makepeace was engaged in what was essentially sleight of hand in terms of conserving land at Frogfoot. Parcels were being double counted — for instance, being counted towards both Wareham and Plymouth conservation requirements pursuant to the permit; moreover, it came out via testimony that Makepeace had not, contrary to the prior understanding of both the Board and this member of the public, registered the land in question with the Plymouth County Registry of Deeds.
( Attorney Jonathan Polloni speaking for Save The Pine Barrens at the Plymouth Zoning Board of Appeals; Attorney Meg Sheehan, of Save The Pine Barrens, is seated at his left; photo credit — J. Benjamin Cronin. )
This lack of forthrightness caused serious disquiet on the Board. David Peck, the Vice Chair, expressed a deep sense of unhappiness with Makepeace and its attorneys and agents, saying that he was “disappointed” by Makepeace’s representations and conduct in this matter.
The Chairman of the ZBA, Michael Main, was likewise unsparing in his statements to Attorney Crossen and his client, A.D. Makepeace.
“We don’t trust you,” said Mr. Main. “Why are you dragging this out?”
Mr. Crossen, for his part, issued an apology on his and his client’s behalf to the Board — there is no recording, but as I recall, the comparatively carefully hedged statement by Attorney was as close as either he or Makepeace got to expressing remorse for a pattern of misrepresentation in this case (part of that, frankly, was through passing the buck to the Massachusetts Division of Fish and Wildlife, whom Crossen said had yet to sign off on the land in question being registered. But this fails to account for the persistently untrue claims made by Makepeace).
Meanwhile, in a separate case, the Board approved the construction of hundreds of new 55 and over apartments at Colony Place in West Plymouth, provided the developers, Claremont Development, pay for a new pump for already over-burdened Town wells. This is despite the fact that West Plymouth faces an impending crisis with regard to its water supply. Critics charge that the mitigation measures allowed to Claremont are essentially band-aids over the environmental equivalent of a deep and destructive laceration.
Despite the decades of broad, and in some cases, near total latitude offered to developers, affordable housing for working families remains in desperate and short supply in the Town and across the region. More proof, if it were needed, that the policy — intentional or otherwise — of government of, by, and for, big developers and extractive interests has manifestly failed the people of our region.
Carver Earth Removal Committee Meeting: Maki-Lopes Mine, Great Meadow Water Issues
Next door, in Carver, at a packed, standing room-only meeting of the Carver Earth Removal Committee on the evening of Wednesday, Dec. 7th, residents made their concerns known. Many attended in relation to a public hearing on an application by landowner Bette Maki and The Lopes Companies of Taunton to expand an existing mine on Maki’s property.
Ms. Maki claims the 20-acre mining site, and the removal of approximately 545,000 cubic yards of material, is“agricultural excavation” for a cranberry bog reservoir.
( The Maki-Lopes mine in Carver, via drone footage from the Community Land and Water Coalition; photo credit — The Community Land and Water Coalition. )
However, the Massachusetts Department of Environmental Protection ruled in July, 2022, that Maki’s reservoir is three times the size of what is necessary to irrigate the cranberry bogs. Opponents argue that Maki’s claim of an agricultural project is simply an attempt to evade the bylaw, and note that not only is the permit for the project expired, but that the amount of excavation (~20 acres vs. ~11 acres) is double what the permit allowed. Make and Lopes Construction simply ignored a cease and desist order that was issued in September, 2022.
Consequently, on Dec. 5th, 2022, a Ten Residents Group filed a notice of intent to sue letter under the Citizens Suit Law with the Massachusetts Attorney General’s Office and the Carver Earth Removal Committee over the site’s ongoing violations.
The hearing on a new Earth Removal permit for the Maki-Lopes site was continued to Jan. 25th, 2023.
( The Carver Earth Removal Committee, Dec. 7th, 2022; photo credit — Carver Concerned Citizens. )
Meanwhile, residents of Carver’s Great Meadow Road testified to the Committee that their private wells are going dry. These wells abut the sand and gravel mine dewatering operation by Johnson Cranberry Company owner Francis Vander “Van” Johnson.
Dewatering is a process whereby when a sand mining project reaches the water table — i.e., the aquifer — the water is physically removed so that more sand can be extracted.
Mr. Johnson told the Committee that he will discuss the issue with residents, and a site visit was planned. Ryco Excavating, of Middleboro, is conducting the mining operation.
Earlier this month, the Community Land and Water Coalition sent the ERC a demand for enforcement for two other mining sites operated by Johnson, on Fuller Street and on Purchase Street in Carver. As with the Maki-Lopes site, critics charge that the primary activity at these locations is sand and gravel mining.
Mr. Johnson, on the other hand, maintains that the excavation is incidental to agriculture, and qualifies for an exemption from the ban on mining in residential areas.
As in Plymouth’s ZBA meeting, the Chair of the Carver Earth Removal Committee, Robert Ieronimo, refused to allow the meeting to be recorded by Carver’s regional public access cable television network, Area 58. According to attendees, Mr. Ieronimo showed consistent hostility to the assembled residents. According to the Community Land and Water Coalition, Mr. Ieronimo has in the past worked as an independent contractor for A.D. Makepeace.
“To say that we are disappointed is an understatement. I wonder what it is going to take for the ERC to do their job, which is to protect the residents of Carver? I have yet to see one board in this town do the right thing,” said Mary Dormer, of Carver Concerned Citizens.
“When residents showed the ERC pictures of silica sand from the operation covering their property and described the excessive and concussive noise and vibrations they have endured for a decade, causing cracks in their home’s foundations, we were treated with disrespect and dismissed. Town officials work for the residents, not for the sand and gravel industry,” said Ms. Dormer.
While these are, at the level of law, not the outcome some critics had hoped for, they do make clear, in the court of public opinion, a truth that is simply incontrovertible: in these two instances, Town Boards and Committees (despite the important dissents by Mr. Peck and Mr. Conroy, for example) have proven more friendly to, and tender toward, the interests of large, extractive, economic actors, than to the ancient right of the people of the Towns of Plymouth and Carver — and beyond — to clean drinking water.
As was said in a different context, but which is highly relevant here: those who have eyes to see, and ears to hear — let them see, and let them hear.
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An anecdotal point of data: I wrote my college application essay in the autumn of 2000 on cranberry agriculture, and what was already a disastrous and increasingly entrenched pattern of low prices and increasing competition from “newer” growing regions like Wisconsin and Quebec, and other similarly situated cool-temperate climates.
The Plymouth Town Counsel, as well as Makepeace’s attorneys, aver that Save the Pine Barrens lacks standing, citing the 2020 Massachusetts Land Court decision Murchison v. Board of Appeals of Sherborn. Attorneys Sheehan and Polloni point, by contrast, to two judicial decisions that lend support to the idea that Save the Pine Barrens does, in fact, have standing.
The most recent is Kalinowski v. Pine Brook BWC, LLC, an April, 2020, decision by the Franklin County Superior Court denying a motion to dismiss by the defendants in a case pitting environmentalists and aggrieved citizens against solar development companies and the Town of Northfield’s Planning Board, in which the Court found that RESTORE: The North Woods, a non-profit forest preservation group, did in fact have standing under relevant statute and case law.
In addition, in a 2009 case, Fathers and Families, Inc. v. Mulligan, the Superior Court of Suffolk County, in a memorandum of decision on the defendants’ order to dismiss, found that organizations have standing if they meet certain tests. Citing prior precedents, the Court held that “[a]n organization has standing to represent its members if the members have standing, the interests the organization seeks to represent are germane to the organization's purpose, and neither the claim nor the relief sought requires the individual participation of its members.”