Robbins Pond Flooding, Pilgrim Decommissioning, New Hope and the Plymouth ZBA, and a Land Bank: 2/1/23 Digest

Four Shorter Explorations of Ongoing Stories Across the Region

[Readers, here are four updates on ongoing issues folded into one article; in general, they presage further, and longer, articles to come. As always, the Plymouth County Observer welcomes comments, corrections, feedback, and other correspondence. — Ed.]

Waters Overflowing In East Bridgewater and Halifax

Breached Dam on Robbins Pond; Outrage over Whaleback Gravel Removal; Political Change in Halifax

“Behold, waters rise up out of the north, and shall be an overflowing flood, and shall overflow the land, and all that is therein; the town, and them that dwell therein: then the people shall cry, and all the inhabitants of the land shall howl.”

         — Jeremiah, 47:2, King James Version [with two words modified be me — Ed.]

In an upcoming, long-form story, I intend to examine the successful efforts by citizens of Halifax to stop a massive, and arguably illegal, sand mining operation by Morse Brothers, the large cranberry growers, on the most prominent height in the town and a site of Native archaeological significance, The Whaleback, a glacial hill, approximately 92 feet above sea level, on the shores of West Monponsett Pond.

( The watery crossroads of Plymouth County: from west to east — Robbins Pond and Robbins Reservoir at the bottom left of the image; Stump Brook runs between West Monponsett Lake, or Pond, the twin of East Monponsett Lake/Pond; the Whaleback is just south of the northwestern-most cove of the West Lake; Stetson Pond is north-northeast of the Monponsett Ponds, and Silver Lake is along the right-hand margin of the image; photo credit — Google Earth. )

The story, which has been reported in pieces elsewhere (some of it, like the Boston Globe’s coverage, was tendentious and lacking critical context), is political history writ local, the story of a group of outraged citizens rising up in the municipal equivalent of a political revolution, sparked by revulsion at the destruction presided over by certain officials of their government.

As part of this general upheaval, two-thirds of the Select Board resigned last summer, leaving the constitutionally extraordinary situation of one Select Board member serving as the sole member of the Town’s executive branch prior to the election of two new Selectmen last November.

The importance of the proper — that is to say, with the interests of the public and our communities foremost in mind — management of our fluvial commons was underscored recently in that very watershed, when the dam between Robbins Reservoir and Robbins Pond, on the East Bridgewater-Halifax line, burst, sending water flowing through the dike separating the two bodies of water, as reported by local observers, as well as several Boston television stations (the East Bridgewater Fire Department appears to have filled the breach, for the time being).

( High waters in Robbins Pond; photo credit — Jeremy Gillespie. )

The flooding caused damage to homes and properties on the northern and western shores of Robbins Pond in East Bridgewater.

( Flooding along the shores of Robbins Pond in East Bridgewater; photo credit — Jeremy Gillespie. )

On Sunday, Jan. 29, I took a walk with Jeremy Gillespie, of Halifax, in the region of Stump Brook, in the Burrage Pond Wildlife Management Area, on the Halifax-Hanson line. Burrage Pond is the remnants of what was once the Great Cedar Swamp, that sat between Halifax and Hanson.

Logged for its valuable cedar wood in the 18th and 19th century, with a short-lived peat-digging operation in the early 20th century, and eight decades of cranberry agriculture subsequent to that, the state-owned Wildlife Management Area is representative of the large complex of wetlands that sit between the Monponsett and Robbins Pond watersheds — which drain to the Taunton River, and ultimately, Mt. Hope/Narragansett Bay — and the ponds of Pembroke and Hanson that drain to the North River, and Massachusetts Bay (the Wampanoag Passage is the historical water route between these two arms of the sea).

Mr. Gillespie, who will be introduced more fully in an upcoming story, is a citizen exercising his ancient rights at Magna Carta in defense of our commons.¹ Mr. Gillespie lives on West Monponsett Pond in Halifax, and as an avid and experienced outdoorsman, is intimately familiar with these interconnected waters.

He guided us in a walk, among other places, along Stump Brook in northwestern Halifax, looking for clues to the source of the flooding; one local resident we encountered in the swamp, a lifelong inhabitant of the area and with deep knowledge of its waters and its lands, said that the water as it was currently running was the highest he had ever seen it, and evidence of water about a foot and a half above its level on Sunday, Jan. 29th, was visible further down the course Stump Brook in terms of debris, waterlines along trees, and so on.

( The Stump Brook Dam; photo credit — J. Benjamin Cronin. )

Local observers, looking for a cause of this flooding, have hypothesized that some of the significant alterations made to local hydrology by private economic actors — such as Morse Brothers, the large cranberry growers engaged in massive sand and gravel removal operations locally — may have contributed to this unprecedented flooding event (while the level of rain in recent week has been high, it has not been proportionate to the scale of the flooding).

For now, in the Whaleback matter, the citizens of Halifax have been able to halt truly egregious damage that was being done to their Town’s physical environment at the behest of private interests which appeared to have achieved — and then lost — control of a local government.

Yet as the broken dam over the weekend in the watershed of Robbins Pond shows, the management of the fluvial commons in the public interest is an open and ongoing question — in those towns, and throughout the region.

I’m looking forward to further exploring this topic.

NDCAP Meets in Plymouth To Discuss Pilgrim Decommissioning

Moran, Muratore, and LaNatra Discuss Bills Filed In New Legislative Session

[Readers, though I am a member of Save Our Bay, I have tried to be fair to all perspectives in this story. - Ed. ]

The Nuclear Decommissioning Citizens Advisory Panel (NDCAP) met on Monday evening, Jan. 23rd, at Plymouth Town Hall, to consider issues related to the decommissioning of Pilgrim Nuclear Power Station in Plymouth.

( The view from the audience: NDCAP, Jan. 23, 2023; photo credit — J. Benjamin Cronin )

   A number of important issues were discussed at the meeting, including an update from Sen. Su Moran (D-Falmouth), on legislation she has filed (SD 1721) with similar language to the dumping moratorium bill passed by both houses of the legislature and vetoed by Gov. Baker last November. Counterpart legislation (HD 256) has been filed in the House by Reps. Josh Cutler (D-Duxbury) and Rep. Sarah Peake (D-Provincetown); Rep. Kathleen LaNatra (D-Kingston) has signed on as a cosponsor.

Rep. Matt Muratore (R-Plymouth) and Rep. Kathy LaNatra, who also represents significant portions of Plymouth, spoke at some length on a bill they have filed that would abolish the Nuclear Decommissioning Citizens Advisory Panel itself, and create a new Pilgrim Decommissioning State Oversight Panel. The bill is also cosponsored by Rep. Susannah Whipps (I-Athol).

The bill, HD 3705, the legislators stressed, is very much a work in progress. It would create a new Pilgrim Decommissioning State Oversight Panel, which would have a different — and considerably smaller — membership than the present NDCAP, going from 21 to 15 members. It would be a more Plymouth-focused body, and some of that focus appeared to be on issues of economic development. It would reduce the meeting frequency, from bi-monthly to quarterly.

Several NDCAP members expressed deep concerns with the bill, and the proposed new Pilgrim Decommissioning State Oversight Panel.

NDCAP Member Henrietta Cosentino, of Plymouth, stated her concern that because the new panel would be smaller, it might have the effect of excluding citizens’ voices, which are already, Mrs. Cosentino averred, under-represented in the discussion around decommissioning.

NDCAP Vice Chair Pine DuBois, of Kingston, expressed her concern about the implications of the bill’s seating a representative of the Plymouth Regional Economic Development Foundation in terms of potential redevelopment vs. the future conservation prospects of the 1,500 acres still owned by Holtec in the ecologically, geographically, and historically unique landscape of the Plymouth Pine Hills (the highest spot directly on the Atlantic south of Maine, and north of the Mexican State of Veracruz).

NDCAP Member Mary Lampert, of Duxbury, in a statement that found support from NDCAP Member Andrew Gottlieb, of Mashpee, argued that the bill’s focus on the Town of Plymouth to the seeming exclusion of its neighbors was a problem. The intensely regional nature of the issues raised by the decommission of Pilgrim Nuclear Power Station rendered it of interest to communities throughout the region, Mrs. Lampert said.

(Rep. Muratore and Rep. LaNatra, standing at right, present their bill to the NDCAP; photo credit — J. Benjamin Cronin. )

Meanwhile, Holtec continues to press ahead with its application to the EPA for a modified NPDES (National Pollution Discharge Elimination System) permit that would allow discharge of the water in question.

David Noyes, Senior Compliance Manager at Comprehensive Decommissioning International, a Holtec subsidiary, stated that they intended to submit the permit modification in the mid- to late first quarter of 2023.

Mr. Noyes also acknowledged that, contrary to Holtec’s arguments through much of 2022, the current NPDES permit binds it and prevents unauthorized discharges.

“With the pursuit of that permit modification, we will not discharge until that permit modification process … goes through its process…. And we recognize the authority of the EPA, and their specific restrictions that they’ve placed on us via the letters that we’ve received. So we have acknowledged those, we understand them, and we will fully comply with them,” said Noyes.

During public comment, Brian Campbell, of Plymouth, a retired electrical engineer, spoke passionately in favor of dumping treated water into the bay, arguing that it is safe. He spoke about his view that nuclear energy is a viable solution to climate change.

Arthur Deslosges, of Plymouth, a member of the Executive Committee of the Massachusetts Chapter of the Sierra Club, spoke, as he has in prior NDCAP meetings, in opposition to dumping. He urged the NDCAP to take action:

“I request that you send an emergency letter to the Governor in advance of your annual report that strongly states that this community is fearful of possible harms and does not want one drop of this water discharged into the Bay,” said Mr. Deslosges.

Finally, Ryan Collins, of Sagamore Beach, the founder and proprietor of the fishing website My Fishing Cape Cod (https://myfishingcapecod.com/), spoke powerfully about his opposition to dumping.

Mr. Collins posed a question to the representatives of Holtec:

"Will your legacy as individuals and as a company, be one in which you are remembered by us and the future generations to come, as the company and the people who ignored our simple request [not to discharge the radioactive water]?” asked Collins.

“Or will you leave behind a legacy in which you are remembered by us and the future generations of Plymouth and Cape Cod, as the company that listened, and acquiesced to our collective wish and desire that you take this water elsewhere? The people of Plymouth and Cape Cod have made it clear to you that we do not want this water discharged into Cape Cod Bay,” he said.

( From left to right: Rosemary Shields, of Harwich, and the Cape Cod League of Women Voters; Ryan Collins, of Sagamore Beach, and My Fishing Cape Cod; photo credit — PACTV. )

“My hope in speaking tonight is that when you are lying in bed, you will remember my words, and consider what I have said. After all, and I feel this important for all of us to remember, on the day they lay your body down to bury you, there will be nothing in the pockets on the pants that you’re wearing. You can’t take your money with you. All you can do is leave behind a legacy. Thank you,” said Mr. Collins.

New Hope Chapel, Earth Removal, and the Plymouth ZBA

Packed and Heated Hearing On Special Permit for Earth Removal by New Hope Chapel

The Plymouth County Observer covered the contentious Jan. 4th hearing of the Plymouth Zoning Board of Appeals (ZBA), concerning the parcel located on Joshua’s Way, off Long Pond Road in Plymouth, and the decision by the ZBA to deny an appeal of the Building Inspector’s denial of a request for enforcement from Save the Pine Barrens, an environmental organization.

The request for enforcement concerned an alleged illegal sand and gravel mining operation by the former owner of the property, developer Scott Spencer, of the Sheava Development Corporation.

Two weeks later, on the evening of Jan. 18th, the ZBA heard the petition of the present owners, New Hope Chapel, for sand and gravel removal that they argue is incidental to the construction of their new church.

There is no recording, so far as I am aware, of this ZBA meeting, since, unlike other Town Boards, the event is neither broadcast and recorded via PACTV, nor accessible via Zoom. Thus, much of this story relies on your correspondent notes and recollections of the event, as well as those of his sources.

The hearing concerned the church’s application for a special permit for earth removal per Section 203-2 (C)(5) of the Plymouth Zoning Bylaw — in this case, approximately 64,000 cubic yards, according to Attorney William H. Sims, who represents New Hope. The church likewise sought a special permit to allow side slopes that exceed 3 to 1 grades, and a special permit to allow parking for more than 200 vehicles and for storage of snow.

Mr. Sims averred that the gravel removal is allowed under M.G.L. c. 40A Section 3, the Dover Amendment, exempting religious, educational, and other uses from some zoning requirements. Attorney Sims emphasized the desire of the petitioners to be responsible neighbors and stewards of the land.

Richard Serkey, an experienced land attorney and Precinct 2 Town Meeting Member, offered a counter-argument in a memo sent to the ZBA on Jan. 14th via email, and which formed the basis of Mr. Serkey’s argument on the evening of Jan. 18th, when he spoke at public comment.

( Richard Serkey addresses the Zoning Board of Appeals; photo credit — J. Benjamin Cronin. )

“The Church building itself is largely exempt from zoning. But sand and gravel removal [note: I rendered Mr. Serkey’s emphases using italics - Ed.] from the land is what brings the Church to the Board. Sand and gravel removal is not a religious use,” wrote Mr. Serkey.

“The proposed sand and gravel removal from the land is unrelated to the proposed religious use of the building — except in the area of the building and the parking lot,” he said.

Mr. Serkey noted that in a unanimous decision on Sept. 14, 2022, the Plymouth Planning Board ruled that the sand and gravel removal is not incidental under the Town’s Zoning Bylaw. 

The question of jurisdiction was raised by Mr. Serkey. What the church proposes, he argued, is mining, defined as “the process [of] extracting useful materials from the earth”; mining, said Mr. Serkey, is prohibited in all three aquifer protection areas under the bylaw, and therefore requires a use variance. 

“A ‘use variance’ is the most extreme variance that can be issued. Unlike usual variances from dimensional requirements, a ‘use variance’ allows land to be used for an otherwise prohibited purpose,” wrote Serkey.

“Because of that fact, the Massachusetts Zoning Act provides that a ZBA can grant a use variance only if the ZBL [Zoning Bylaw] expressly authorizes the ZBA to grant use variances. Since our ZBL does not empower the ZBA to grant use variances, this Board has no jurisdiction to approve this petition, except to allow sand and gravel removal in the area of the Church building itself. The ZBA simply cannot approve this petition,” argued Mr. Serkey. “This case is that simple.”

Meanwhile, William Shaw, an engineer hired by abutting property owners, suggested that removing sand and gravel from the site was not necessary; rather, it should be used to fill in some of the depressions in the land caused by prior earth removal operations.

As has been the case in the past, Mr. Main, the Chair, found himself in a combative exchange, on this occasion with Mr. Serkey, regarding what Main viewed as the late submission of materials, and what Serkey argued was in fact a timely submission.

The hearing was extremely well attended, with dozens of parishioners from New Hope showing up in support of their church’s petition, as well as opponents, and those concerned with or curious about the project also in attendance.

( Sam Chapin, of the Wildlands Trust, an abutter of New Hope Chapel, addresses the Board; photo credit — J. Benjamin Cronin. )

Most of the testimony did not address the particular issue before the Board, which was a special permit for gravel removal by New Hope, and whether that gravel removal was “incidental” under the Plymouth Zoning Bylaw.

A number of speakers during public comment spoke in favor of the Church, arguing that it performed good works, especially among those lacking shelter and struggling with addiction; that it would be a good neighbor; and that it counts many outdoors enthusiasts among its congregation who are concerned with the preservation of our wild lands and waters. New Hope Pastor Neil Eaton offered prayers for those at the hearing, including those opposing the petition.

Selectman Charlie Bletzer spoke, in an impassioned comment that was received rapturously in some quarters and with opprobrium and dismay in others. Mr. Bletzer opined that the church would be a good neighbor; he himself lives next to the Methodist Church, he noted, and enjoys hearing their hymns on summer Sunday mornings. Bletzer likewise decried the opposition of some of the abutters; some of Mr. Bletzer's statements regarding abutters were the cause of controversy, and caused an audible moment of disquiet in the audience.²

There were others at public comment speaking in opposition to the special permit, such as Anne Balboni, a direct abutter, who spoke about the direct and harmful impact this project is having upon her rural, residential neighborhood. She noted her disquiet at some of Mr. Bletzer’s comments.

There was considerably high feeling in the room during the meeting, and beyond it, regarding the matters raised by the hearing.

Ultimately, with the relatively late material coming before it, the Board elected to continue the case to Feb. 27th, 2023.

Exploring A Land Bank For Plymouth

Selectman Helm and Planning Board Vice Chair Bolotin Lead Discussions

In the face of deepening concerns about the pace of development and the physical limits of Plymouth’s natural resources — especially its aquifer — a number of Plymouth public officials, led  by Selectman Harry Helm and Planning Board Vice Chair Steven J. Bolotin, have begun exploring the idea of a Land Bank, similar to those on Martha’s Vineyard and Nantucket. 

A land bank is a legal device through which the Town to acquire, hold, and use land in a fashion consistent with long-term community goals.

On Nantucket, which is both a Town, of course, and an island, the Land Bank has managed to preserve approximately 50% of the land area of the island. The Martha’s Vineyard Land Bank has preserved nearly 3,900 across the six towns of the island.

“Plymouth wants to manage its natural resources and control new residential development. However, given the continued desirability of Plymouth, the Town has very limited ability to do so,” wrote Bolotin on his website (https://steve4plymouth.com/plymouth-planning).

“Plymouth already has some of the most restrictive residential zoning in the entire Commonwealth, and still new subdivisions are being built. That is because Plymouth can’t prevent developers from building what is allowed by existing residential zoning. Moreover, our commercially zoned land is being converted to apartments through an ‘affordable’ housing loophole in State law (Chapter 40B) which allows developers to completely ignore Town zoning laws. So the only way for Plymouth to prevent land from being developed is to own it,” said Mr. Bolotin.

Ultimately, a land bank would require enabling legislation to pass on Beacon Hill.

A Land Bank and its properties are distinct from land acquired under the Community Preservation Act. It would likely be funded by a real estate transfer fee, not a real estate tax. This transfer fee could be carefully tailored under the direction of the Town; first-time home buyers, for instance, could be exempt, as could real estate transfers under a certain sum of money.

“As Plymouth already participates in the Community Preservation Act, and given our current dependence on residential real estate taxes for almost all municipal funding, a tax based Land Bank is not presently under consideration. Instead, Plymouth would likely propose a real estate transfer fee (typically paid by the buyer) as the source of funding,” said Mr. Bolotin.

 One argument that Land Bank proponents make is that given Plymouth’s vast size, and given the fact that a significant amount of land must be preserved in order to safeguard the Town’s sole source aquifer, the Community Preservation Committee simply will likely lack the money requisite to purchase the amount of land under discussion (for instance, the 1,500 acres that Holtec owns in the Pine Hills could cost tens of millions of dollars). A land bank, especially in a place with valuable real estate, can begin to allow a community a greater say in its future development, say proponents.

( Cleft Rock, located on a town-owned parcel in the Pine Hills; photo credit — J. Benjamin Cronin. )

Likewise, municipal uses, such as wells, are not allowed on conservation land preserved under the Community Preservation Act; such uses, or any other use the Town deemed consistent with its longer term goals, would be allowed under a Land Bank, subject to the control of the Town. 

“Plymouth has an actual need to preserve rural land from development due to its reliance on a sole source aquifer. Continued development of residential properties which rely on wells and septic systems presents a threat to Plymouth’s water supply similar to that now being experienced on the Cape and South Coast,” said Mr. Bolotin.

“Plymouth is experiencing the same type of atypical residential real estate growth as Nantucket and Martha’s Vineyard consisting almost exclusively of higher-priced homes and units, meaning a transfer fee paid by the buyer would not be penal or exclusionary in nature,” he said.

Thus far, Selectman Helm and Planning Board Vice Chair Bolotin have held two public meetings on Plymouth’s development issues, one at the Plymouth Center for Active Living on Dec. 22nd, 2022, and a second at the Little Red Schoolhouse in Cedarville on Jan. 19th, 2023. 

A third meeting has been scheduled at Plimoth Patuxet for Saturday, March 4th, 2023, from 9:30 to 11:00 a.m.

1. The raft of reforms associated with Magna Carta (1215), the great charter of English liberties, established not only the rule of law and fundamental rights like trial by jury, but also the rights of the common people of England to the Commons of the realm, via the Charter of the Forests (1217).

2. In a Jan. 19th email to the ZBA, Mr. Serkey argued that Mr. Bletzer’s testimony should be excluded:

“The testimony of a member of the Select Board should be totally discounted. The Select Board appoints you to the ZBA, and for that reason it is wholly inappropriate for one of its members to urge you how to decide a case. In my 46 years as a zoning attorney, I have never seen this done before. His testimony was a political speech seeking to curry favor with church supporters in the audience. The Chair should have strictly limited his testimony for both of these reasons,” wrote Mr. Serkey.

For his part, Selectman Bletzer told The Plymouth County Observer that he spoke in his capacity as a private citizen who was passionately moved by the situation of New Hope Chapel and its congregation; such statements are entirely appropriate, and well within his rights, he said.