Select Board looks to hire firm to evaluate earth removal operations

Jan 4, 2022

Following a public outcry, the Select Board decided to move forward with efforts to determine whether illegal earth removal has been underway around town — and, if so, how much earth has been removed. 

The Select Board first voted on Dec. 14 to direct the town to find funds to hire an engineering firm to analyze areas where unauthorized earth removal operations are suspected. The initial vote was 4-1, but because the issue had not been on the agenda for a vote the board conducted a second, confirmatory vote with the same outcome on Jan. 4. 

The earth removal issue was thrust into the spotlight at the most recent Town Meeting in October, when a majority of voters supported a citizens’ petition article that called for the town to enforce its existing earth removal regulations

In most instances, if earth is removed from town, entities are supposed to clear that removal with the Select Board, obtain a permit and pay the town 25 cents (or more) per cubic yard removed. There are some exemptions to the bylaw that allow earth removal without a permit, such as for “normal construction” or agricultural use.

The petition article, which was essentially a referendum, called upon the Select Board to determine the number of cubic yards of earth removed (including the volume of trucks and the number of truckloads) from properties where earth removal has taken place. The petition also urged the town to calculate any earth removal fees and penalties that may be owed to the town. 

“The purpose of this referendum is to urge — not demand — that the Selectmen enforce our existing earth removal bylaw,” explained the article’s lead petitioner, Barry Cosgrove, at Town Meeting. “Why? Because the bylaw is a very valuable tool. It’s an opportunity to raise revenue for the town, cut expenses for the town and protect environmental matters.”

The article passed with a strong majority, and the Select Board first addressed the voters’ decision at a Dec. 14 meeting. 

Select Board Chair Judith Whiteside tapped board member Jim Munise to explain the situation. Munise briefly explained the article, and said he believed the first step toward enforcing the earth removal bylaws would be “some air photos” that could then be interpreted by “qualified individuals.”

Those qualified individuals would “look at the changes in the landscape over a number of years, determine where any changes had taken place, determine the owners of the lots where earth removal has taken place and, in addition — utilizing topographic maps — determine the amount of material that’s been removed, approximately,” Munise said. 

He emphasized that the work needed to be done by a professional, and then the board could move to “inquire about any earth removal that has taken place officially that has not been approved by the Selectmen.” 

During the Dec. 14 meeting, Munise said he’d spoken with the town’s lawyer and Town Administrator Derek Sullivan about securing the funding needed to hire an engineering firm to complete the analysis.

After hearing the explanation, Whiteside proposed the board move forward. 

“I think it would be appropriate to do exactly what Mr. Munise has suggested may have been discussed, which would be: Find some money to hire an exert — an engineer — so there is not just anecdotal evidence,” Whiteside said. “There is no more innuendo — no more this, that, stories. We would actually have an engineer’s overview as to what may or may not have taken place.” 

Sullivan said if the board wanted to take such action, he would “figure out how to make it happen and find out the cost associated.” 

Select Board member Peter Teitelbaum opposed the effort. 

“I’m not interested in sending drones out to go look for violations,” he said, adding that any illegal earth removal accusations needed to come before the board in the form of a complaint. “That’s a slippery slope. What are we going to look for next? Are we going to start surveilling other people’s properties for code violations, zoning violations? I don’t like it, so I’m voting no.”

Cosgrove spoke during the public comment portion of the Jan. 4 Select Board meeting and encouraged the board to confirm its prior vote. He directly addressed Teitelbaum’s comments from the Dec. 14 meeting.

Cosgrove said the petition article — which voters supported — was “an unambiguous complaint” to the town about possible earth removal bylaw violations. 

“If fulfilling a legal obligation under bylaw and respecting the will of the people is a slippery slope, what is the metaphor for ignoring a legal obligation and ignoring the will of the people?” Cosgrove asked.