Neighbors Contest Issuance Of Permit For Crowell’s Pit

by William F. Galvin

            HARWICH – It’s like a bad penny, the planning board cannot get rid of it. The board last week continued once again a hearing on the issuance of a gravel mining and earth removal permit for Crowell’s Pit in East Harwich.

            For more than a decade the town has been trying to bring that earth mining operation into compliance and meet regulations now in effect in the Six Ponds Special District. The board is no closer to doing so after two hours of presentations and debates last week.

            Residents surrounding the 55-acre pit complained at the onset of the hearing they did not receive proper notification. Abutters complained of the condition of the pit while other property owners challenged the access of a commercial activity over a residential subdivision.

Abutting property owner Paul Cuddy claims he owns the very property Edward Crowell of Crowell Construction in South Dennis is trying to permit.

“I’d ask there be further investigation,” attorney Robert A. Bianchi of Hyannis said. “We know what we have. This land belongs to Paul Cuddy.”

The town has been doing battle over the earth moving activities taking place in the pit off Route 39 and Cypress Point Road for more than a decade. The activity has been the topic of at least two court cases. The permit requested before the board last Tuesday was on remand from Barnstable Superior Court.

Daniel Ojala, an engineer/surveyor with Down Cape Engineering in Yarmouth, explained the permit being sought was for a 4.2-acre portion of 30 acres of disturbed pit Crowell has been working for many years. The court said Crowell could continue his operation while the permit is sought.

Ojala said he surveyed the property and the two pieces in the middle they are seeking to permit are uncontested. That turned out not to be the case, as Bianchi challenged the ownership issue.

Planning board Chairman Robert Owens cited concerns in the staff report for completeness of the application, specifically with proof of ownership. Assistant town Planner Elizabeth Hude said the applicant has submitted certificates of liens for payment of taxes and an affidavit claiming ownership.

Bianchi said he has had an opportunity to look at the submission and the affidavit of adverse possession filed by Crowell, adding that is not a decision of the Land Court. Planning board member Joseph McParland also said some of the deeds are issued from Crowell to Crowell.

“In 1950 Francis Kendrick was selling a dog, I bought it,” Crowell said. “In the meantime we started talking about land –a pit off 39. He used it for his cranberry bogs and was getting out of the business. Deed after deed followed. I bought 40 acres. The town assessed me for 57 acres. I paid a lot of taxes for someone who doesn’t own the land.”

Herb Bassett, Jr. read a letter from his parents complaining about the use of Cypress Point Road, a residential subdivision, as an access to and from the pit by trucks hauling sand. He said the initial access was over Hall’s Path and the change should expunge grandfather rights. The letter also cited complaints by neighbors in the residential subdivisions to the south.

Brian Kelley of Captain Bearse Lane said he was not legally notified of the meeting. But Hude explained fewer people required notification because the size of the land for which the permit is sought was smaller than in previous hearings. Resident George Lewis echoed Kelley’s concern.

McParland urged the staff to examine that issue should the hearing be continued.  Ojala said his client would extend notification further out within reason should a second hearing be required.

Dr. Michael Dempsey called the pit a metal dump. Crowell challenged that assessment and said he would meet Dempsey there any time to examine the area.

James Mangan also expressed concerns for the water table. “If damaged, who is going to pay for it the town and the neighbors and the person not notified?” Mangan said. “If we lose our water resource we might as well turn it over to a storage area.”

Ojala said Crowell uses the area about 60 days a year. He said Crowell would be responsible for a spill on the property. He also said Crowell will be sure to keep the area clean because he plans to sell it in a few years.

Hude also said the project has been reviewed by town engineers and meets the criteria for groundwater separation, and test wells will be installed prior to issuance of the permit.

But Bianchi said there are fatal flaws in the application. “The most critical is Crowell doesn’t own the land upon which he intends to excavate.” Bianchi said he would provide his title work to town counsel for review.

The planning board chairman asked Bianchi if they have sought relief relative to the ownership issue in the Land Court. “We can’t adjudicate the ownership issue here,” Owens said.

“I’m  interested in what he has to say,” Crowell responded. “Cuddy’s been throwing out ownership accusations for 10 to 15 years.”

“This issue is prime to our decision,” McParland said. “We can’t render a decision to the wrong title owner.”

Ojala said the board does not have legal training so they must rely on the assessed parcels and Crowell’s history of operating on the land. Hude said town counsel has issued an opinion that the planning board is not charged with making the ownership decision. She said that is what the Land Court is for.

The planning board ultimately agreed to continue the hearing until Feb.12, allowing the board to confer with town counsel in an effort to address outstanding issues.

12/20/07