HARWICH — With cease and desist orders issued by the building department a couple of months ago for mining and other commercial uses taking place on land in the Six Pond Special District, the appeals board had their hands full last week sifting through the details.
Clifford DaLuze told the board he and his family own the property in question. He said his father has owned that land since the 1940s and after his father's passing DaLuze, his brother John Z. DaLuze, Jr. and sister Margaret Weigand, took ownership of the land. However, the town assessing department has it classified as “miscellaneous” and no taxes are being paid on the property.
“In 1971 my father took me down there and showed where I could start digging,” Clifford DaLuze told the appeals board. The land, located northwest of Eldredge Pond, had been used as a borrow pit supplying sand for cranberry bogs, but it has since been used for sand to nourish beaches and for use on local roads during snow storms. There are other landscaping and concrete grinding activities there.
There are neighbors who are not pleased with the movement of heavy equipment and trucks along Jay Z Drive, a road providing access to that pit. Jeffrey and Joseph Rego own properties along Jay Z Drive and they have registered complaints about the truck use there and at one point placed gates across property on that road they claim to own. A court decision required them to remove the gates.
However, on May 23 Building Commissioner Raymond Chesley issued three cease and desist orders, one to the DaLuze family, one to Barrows Excavating and one to J. Brown, Inc. for removal of sand and gravel and commercial uses not allowed in the Six Pond Special District.
In the order to the DaLuzes, Chesley cited earth removal and sand and gravel mining taking place. He emphasized this use is only allowed in that district with an operations permit from the planning board and records show no such permit has been granted. The other two orders related to commercial activity in a residential zone, which is not allowed under town bylaws without the proper zoning relief.
Two petitions were filed with the appeals board, one by attorney Charles M. Sabatt on behalf of the Regos seeking to have the board overturn the building commissioner’s denial of a request for enforcement that the operation of a sand pit is prohibited and requires a permit. It also cites the travel access to that pit as a private way, a portion of which crosses the applicant's property, and it is “an unlawful extension of an unpermitted industrial and commercial use in a residential zoning district...” The hearing on that request on that evening was continued.
The second petition was filed on behalf of the DaLuzes by attorney Frank Shealey, appealing the cease and desist order issued by the building commissioner to halt any and all commercial activity at the sand pit until the appropriate zoning relief is obtained. The applicants claimed they have a “pre-existing, non-conforming status.”
Shealey claimed the applicant and subcontractors working there have been removing fill from the pit as an ongoing business. The attorney cited an appeals board decision issued in 1973 to John DaLuze to remove and take sand “from my existing pit on north side of Eldredge Pond and for a continuation, change or extension of non-conforming use to permit him to use the existing road leading to and from the existing sand pit with wetlands Regulations.” Shealey claimed the continuous operation of the sand pit is a pre-existing use and protected under local zoning.
The attorney read in a letter to the appeals board, “The Daluzes take issue with the building commissioner as 'no operational permit is required for this existing sand pit operation,' because of the zoning protection afforded in both, by the Harwich By-Law and by Chapter, 40A, Section 6.”
Discussion before the appeals board drew much debate. Shealey cited a property layout plan developed by Schofield Brothers, Engineering, of Orleans in 1978, showing the larger pit, and the continued operation there. Shealey said there are at least nine acres there.
But questions were raised relating to the ownership of the land based on the absence of tax payments and the location of this property on the ground. Appeals Board Chairman David Ryer said there is a lot of activity out there, including new holes in the ground, which he said are not covered with the 1973 permit and they need a new survey of the property.
“I beg to differ, the ongoing mining is the nature of the sand pit,” Shealey said.
Ryer also said the board needs evidence of the continued use taking place out there. He said there must be financial records showing the continued use. Shealey said it is not like going to a weigh station, there may not be specific records.
The building commissioner was asked to address the order he issued. Chesley said one problem is they don't know where the pit is located. He cited the 1978 survey conducted by Schofield Brothers and said it was never filed with the Registry of Deeds.
“I'd like to have proof of ownership and where this pit is located,” Chesley said. “It needs an on-the-ground survey. Right now it looks like the pit has migrated off the property.”
“It may have gone over the property lines inadvertently,” Shealey said.
Had the 1978 plan been filed with the Registry of Deeds, there would be a quantifiable plan, member John Burke said. The base line is to find out what DaLuze owned out there. Then the board can determine what is going on out there now.
“You've asked the board for relief, but we need to understand what's going on out there,” Ryer said.
Attorney David Reid, who was representing the Regos on that night, also questioned the activities taking place there, citing the absence of the filing of the plan. He questioned the DaLuze ownership, stating the Schofield plan may have been prepared at the request of Clifford DaLuze, but it may not necessarily have said he was the owner of the property.
Clifford DaLuze said his father took him out there in 1971 to show him where he could start digging. “I said wait a minute, I've got to find out where the land we own is, I don't want to dig on anyone else's property,” DaLuze said. He said his father had owned the land since the 1940s and operated cranberry bogs there.
“I'm not prepared to do anything but continue this case,” Ryer said. “I think we need a current survey.”
Shealey said with his clients' permission, he would go to Schofield Brothers and get further information related to the survey.
The session was continued to the Aug. 30 meeting.