HARWICH — The appeals board has upheld Building Commissioner Raymond Chesley's issuance of a cease and desist order halting a commercial sand mining operation in a pit off Jay Z Drive. The board also took the position that it has no legal basis to deny the use of Jay Z Drive by commercial vehicles accessing the pit.
The rulings essentially allow trucks to access the pit but prohibits its operation unless a new permit is obtained.
The board spent more than two hours last week deliberating on two petitions relating to commercial and industrial use of the sand pit owned by Clifford and John DaLuze and Margaret Weigand off Jay Z Drive, northwest of Eldredge Pond, off Queen Anne Road.
The DaLuzes have been battling with Jeffery and Joseph Rego of Jay Z Drive, a subdivision created by the DaLuze family, over commercial vehicles traveling to the sand pit.
The Regos own lots across from each other. Their attorney, Charles Sabatt of Yarmouth, argued the road is private and commercial vehicles do not have the right to use it. The Regos at one point tried to block the road with gates, claiming ownership to the center line from each side of the road, but a court decision required removal of the gates.
The Regos filed asked the zoning board to force the building commissioner to enforce a claim that the sand pit operation is a prohibited use. The DaLuzes' attorney, Frank Shealey of Chatham, challenged that claim, saying the sand pit operation had received a special permit from the appeals board in 1973 and had been an active use since at least 1941.
But Sabatt said the DeLuzes had failed to renew the permit as required. He also pursued the issue of access to the pit over a private way, claiming it “is an unlawful extension of an unpermitted industrial and commercial use into a residential zoning district in violation of Massachusetts Case Law.”
The second petition was filed by the DaLuze family appealing a cease and desist order issued by the building commissioner last May halting commercial activity in the sand pit until appropriate zoning relief was obtained and an operations permit was issued by the planning board. The petitioners argued they have “pre-existing, non-conforming status” under state law and Harwich zoning bylaws.
Sabatt said use of the sand pit over the past few years intensified with the addition of wood waste, recycling and reclaimed materials; the active commercial use by J. Brown, Inc., Barrows Excavating and the DaLuze family, including the sale of sand, is prohibited in the Six Pond District, he said.
Shealey objected to the Regos hearing going forward because of the 10-year statute of limitations from issuance of the 1973 special permit. But Sabatt said he is reacting to the building commissioner's recent refusal to act on a cease and desist order his clients requested due to commercial and industrial use of the private road, which the Regos claim is a violation of zoning. There is also a Barnstable Superior Court case related to Jay Z Drive access. Shealey questioned whether the road was private, citing references to the road as an ancient way and its existence on a 1910 county atlas. He contended it was a public way going back to 1888.
Jay Z Drive resident Andrea Monderer said she bought her house in 2007 and complained about the increased activity. She said the heavy equipment is destroying the road and she is fearful of being run over by the vehicles.
“We bought this property to come and relax, but I'm constantly anxious. There's dust everywhere and it hasn't been an enjoyable experience,” she said “I can't sell my house right now.”
But the board steered away from the road use issue. Appeals Board Chairman David Ryer said the issue facing the board is whether the special permit issued in 1973 for the operation remains valid.
Board member John Burke agreed the issue facing the board was a narrow, centering on the right to use the pit. He said the land where the pit is located is residentially zoned and not commercial or industrially zoned and thus the case law cited did not apply. Burke also pointed out the bylaw allows non-residential use in a residential zone by permit.
Shealey pointed out when the appeals board approved the special permit to John DaLuze Sr. in 1973 the request included use of the road to the sand pit. Brown and Barrows are ceasing their operations at the pit, he added.
But the board raised issues relative to the validity of the permit. Shealey cited the DaLuze history of operating a cranberry bog there as far back as 1941 and the sand pit, a borrow pit, was operated as part of the agricultural activity, making it a pre-existing non-conforming use.
But Burke challenged that assertion, pointing out there is no pre-existing non-conforming status because the borrow pit was an allowed use. Ryer also challenged the existence of the 1973 special permit, pointing out the initial special permit was granted for three years and a renewal had to be sought but never was.
Shealey responded by citing provisions in the zoning bylaw that state all sand and gravel operations permits are exempt. Ryer said that's not the case if the use is unlawful. He cited the provisions of the Six Pond District zoning approved in 2001 requiring an operations permit from the planning board.
Chesley said the cease and desist order was issued because it was thought that permit had expired. But Shealey said he met with town counsel, Town Administrator Christopher Clark and Chesley, and town counsel said the permit was still in effect.
“This is the first I've heard of it,” Shealey said of the absence of a permit.
There was much discussion about the size of the pit, put at nine acres on a new survey plan presented to the board. There were comments about how it has grown outside the limits of the DeLuze ownership. But there were also questions of ownership as the land is listed as owners unknown and taxes are not being paid on it.
Saying there is no evidence of pre-existing non-conforming status and the 1973 permit had expired, Burke moved to uphold the cease and desist order, which was approved. Burke then moved to denying enforcement on the use of Jay Z Drive by commercial and industrial vehicles, which left the building commissioners determination in place. “There is no legal basis upon which we can deny the use of Jay Z Drive,” Burke said. The board also approved that motion.