#203 ze COMMONWEALTH OF MASSACHUSETTS {i PLYMOUTH, ss. BROCKTON DIVISION SUPERIOR COURT CIVIL ACTION NUMBER 2383CV00304 JOSEPHINE BEADLING & another! vs. ROBERT IERONIMO & others? MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND WAIVER OF SECURITY Plaintiffs Josephine and Keith Beadling filed this action seeking certiorari review of a decision of the Town of Carver Earth Removal Committee (“the Committee”) granting a permit | to engage in earth removal activities on abutting property owned by defendant Bette Maki | (“Maki”), and alleging nuisance, trespass, and negligence. For the reasons discussed below, the Plaintiffs’ Motion For a Preliminary Injunction and Waiver of Security is DENIED. BACKGROUND ‘The following facts are taken from the First Amended Verified Complaint. The Beadlings live at 272 Meadow Street in Carver, Massachusetts (“the Property”). Maki is the owner of property located on Meadow Street and shown on Assessor’s Map 83-6, Map 83-1, and Map 82- 4 (“the Site”), ‘The Property directly abuts the Site. ‘The Site is located in the Plymouth-Carver | Aquifer, designated by the U.S. Environmental Protection Agency as a sole source aquifer. The ‘Keith Beadling ’Michael C. Harrison, Richard Ward, John Mason, and William Garnett, as they are the members of the Earth Removal Committee of the Town of Carver, Bette Maki; and The Lopes Companies, LLC :Aquifer is the sole drinking water source for residents of Carver. The Beadlings obtain their drinking water from a private well on the Property, the source of which is the Aquifer. Under the Carver Zoning Bylaw (“the Bylaw”), earth removal is permitted only after the issuance of a permit by the Committee. The Beadlings allege that the Committee is defunct and fails to perform its duties under the Bylaw. Committee members Ward, Mason, and leronimo represent the cranberry industry. Committee chair Ieronimo also represents the trucking, sand, and gravel mining and excavation industry. In 2011, Alex Johnson & Sons was listed on an application to conduct earth removal at the Site. The Committee issued a permit to Maki to do so on March 1, 2011 (“the 2011 Permit”). The 2011 Permit contains conditions including that the removal of materials is not to exceed 545,000 cubic yards, a limit of 25 truckloads per day, and restricted hours of operation. Under Section 9.1.7h of the Bylaw, an earth removal permit is issued for one year, and the Committee has the discretion to extend a permit beyond one year, but no project can be extended beyond five years without a full hearing of the Committee. On February 18, 2022, the Committee was asked to enforce the 2011 Permit and its conditions, the Bylaw, and the Committee’s Truck Rules and Regulations against Maki and The Lopes Companies, LLC (“Lopes”). On July 20, 2022, the Massachusetts Department of Environmental Protection (“DEP”) issued a letter to the citizens” group Save the Pine Barrens stating that the proposed reservoir on the Site will be 220 acres-feet, which far exceeds the volume needed for agricultural purposes. On September 13, 2022, the Committee issued a cease and desist order to Maki and Lopes to cease all earth removal activities at the Site. That order states that Maki’s current permit was no longer valid and she was required to submit a full application and go through afull public hearing for an earth removal permit to be issued, The Beadlings allege that Maki and Lopes have violated the cease and desist order. On November 1, 2022, Maki filed an application for an earth removal permit for the Site under the Bylaw. Her application was accompanied by a one-page site plan dated November 22, 2010 and entitled “Draft Plan of Proposed Reservoir Carver, Massachusetts” (“the Gilmore Plan”). Maki’s application sought approval to continue the earth removal operation that the Committee permitted in 2011 and allowed to continue with an expired permit through September of 2022. The application indicates that the volume of earth to be removed was 545,000 cubic yards, with 200,000 cubic yards remaining. ‘The Committee published an agenda showing a public hearing on the application for December 7, 2022. However, the Beadlings allege that the Committee did not publish the notice in a newspaper of general circulation for two consecutive weeks at least fourteen days in advance of the hearing. The Beadlings also allege that the Committee did not properly open and close the hearing and censored the contents of citizens’ speech during the public comment period. At the public hearing on the application, William Madden of GAF Engineering presented a plan to remove 200,000 cubic yards of earth over a fifteen-month period (“the Madden Plan”. The Beadlings allege that Committee Chair Ieronimo refused to provide the public with a copy of the Madden Plan, stating that the public could get it from the Clerk’s Office at Town Hall, which was closed during the hearing. Further, the Committee has refused to produce the Madden Plan despite public record requests since December 2022. At the hearing, Maki, Lopes, and GAF represented that their proposed activities are agricultural excavation to expand the water reservoir that Maki excavated on the Site in 2011 to supply twelve acres of cranberry bogswith water. The Beadlings presented photographs of sand covering their home and car but Committee Chair Ieronimo refused to accept the photographs into the record. The Committee unanimously voted to issue a permit to Maki and Lopes on March 29, 2023 (“the 2023 Permit”) and filed its decision with the Town Clerk on April 4, 2023. The 2023 Permit contains conditions for operation such as limiting the material removed to 99,160 cubie yards and restricting the hours of operation but it increases the number of daily truck trips from 2510 50 aday. ‘The Beadlings allege that when the Committee issued the 2023 Permit, it only had five members, not seven as required by Section 9.1.3 of the Bylaw. The Beadlings further allege that the Committee had no authority to issue the Permit because it was improperly constituted, with the majority of its members representing the same industry, the cranberry industry, The Beadlings allege that the Committee issued the 2011 Permit and the 2023 Permit under the false premise that an agricultural reservoir was being constructed, when in fact the defendants are conducting a commercial mining operation. ‘The Beadlings further allege that the Committee allowed Maki and Lopes to unlawfully expand the mining operation by 19 acres beyond the area shown on the 2011 plans. ‘The Beadlings allege that operations on the Site expose the Property to carcinogenic silica sand, excessive noise, vibrations, dust, and truck traffic. ‘Trucks and heavy equipment going to and from the Site pass within 52 feet of the Beadlings’ front door. There are cracks in the foundation of their house from the earth removal operations. Section 4300 of the Bylaw designates the entire Town of Carver as a Water Resource Protection Overlay District. The Beadlings allege that operations on the Site exposed their water to contamination and has increased the vulnerability of the Aquifer and private wells tocontamination. In 2023, the Beadlings’ well water tested positive for the presence of PFAS, a family of “forever chemicals” known to cause cancer and other disease. ‘The Beadlings filed this action on April 13, 2023. Count I of the First Amended Verified Complaint seeks certiorari review of the Committee's decision to issue the 2023 Permit pursuant to G.L. ¢. 249, § 4. Count II seeks a declaratory judgment that the Permit is void and of no effect, the Committee is defunct and has failed to perform its duties under the Bylaw, and the court has jurisdiction to revoke the 2023 Permit, Count IIT alleges negligence, Count IV alleges private nuisance, and Count V alleges negligent trespass by Maki and Lopes. The Committee filed an answer asserting affirmative defenses but did not file the administrative record of the Permit proceedings. ‘The parties have introduced the following evidence in connection with the plaintiffs’ motion for a preliminary injunction, Josephine Beadling filed an affidavit stating that the western part of the Property borders 330 feet along the Site. When she first moved to the Property in 2004, the Site was a natural wooded area surrounding cranberry bogs. Since the earth removal operations began in 2011, the Site has become an open pit sand mine with no vegetation to prevent the sand from blowing away. Beadling avers that she has seen heavy equipment for crushing rocks and sorting sand and gravel entering and exiting the Site. Most of the trucks say “G. Lopes Construction.” Sand from the Site has blown onto the Property since 2011 and continued to do so in April of 2023. The Beadlings cannot open their windows or go outside because sand will cover their skin. Sand fills up their gutters, requiring them to have the gutters cleaned several times a year. The Beadlings have sand in their toilets and issues with their well pump. The earth removal operations cause the Property to shake and the Beadlings cannot enjoy their home due to the noise, vibrations, and truck traffic. The Beadlings havecomplained repeatedly to the Committee about the operations at the Site but have received no relief, In addition, Beadling has emailed the Committee countless pictures and other documentation about alleged permit violations, but the Committee refuses to consider them. Beadling avers that she has documented the following violations of the 2011 Permit: exceeding 25 truck loads per day, roadside staging of trucks, and trucking past 4:00 p.m. After the cease and desist order issued, Beadling documented trucks entering and exiting the Site on September 14, 15, 16, 19, 20 and 21, 2022, When she reported these violations to Ieronimo, he stated that it would take a few days for work at the Site to cease and the work was just building a wall, which does not violate the order. Beadling filed a second affidavit stating that since moving for an injunction on June 26, 2023, she has experienced emissions of sand from the Site on the Property. She has attached five photographs showing that in June of 2023, her gutters contained sand, the outside of her house was streaked with sand, and there was sand on and under motor vehicles parked outside. Beadling hired SafeWell to test water from her kitchen sink on December 7, 2022. A Water Quality Report produced by SafeWell shows perfluoroalkyl substances (PFAS) totaling 15.09 ppt, which does not exceed DEP's acceptable limit of 20 ppt. Attomey Margaret Sheehan has filed an affidavit stating that the Town of Carver’s website lists four members of the Committee as of June 22, 2023. Her search of the Secretary of State Corporation Division revealed that a company named Alex Johnson & Sons, Inc. was involuntarily dissolved on December 31, 1990; Maki was listed as its treasurer and secretary. Attomey Sheehan made a public records request for all records relating to earth removal permits issued for the Site. The Committee did not produce any records showing a bond or performanceguarantee, a review by a registered professional engineer, annual reports, or a vote to extend the 2011 Permit beyond one year. Gary James filed an affidavit stating that he has been a registered professional civil engineer since 1982. He reviewed the Bylaw and numerous other documents related to the Site. James notes that the EPA has characterized the Aquifer as highly vulnerable to contamination. He opines that the construction of the reservoir on the Site constitutes a commercial mining operation and construction sand and gravel processing as defined by the EPA in the Clean Water Act. In addition, aerial imagery of the Site shows the sorting of sand and gravel consistent with a commercial operation. James further opines that the excavation of 545,500 cubie feet from the Site is not necessary to create a reservoir for the cranberry bogs. He notes that Maki’s DEI registration authorizes her to continue to withdraw water from the Weweantic River through 2031. He therefore concludes that the removal of gravel from the Site is for commercial purposes, potentially worth $8 million. James opines that Maki’s November 1, 2022 earth removal permit application did not comply with the Bylaw’s requirements for a site plan. James avers that the removal of tree cover on the Site has the potential to negatively affect groundwater through additional nitrogen loading. He notes that the Site has been exposed for over twelve years without vegetative cover. He states that silica is a common mineral in construction materials such as sand and stone and when crushed, tiny particles of silica, if inhaled, can cause silicosis and lung cancer. He notes that no air monitoring has been performed at the Site. Maki filed an affidavit stating that she is a third-generation cranberry grower in Carver. Her family has operated cranberry bogs there for more than 100 years. Maki owns forty acres of bogs. Maki’s understanding is that the project on the Site is more than 5/6 complete and will becompleted by March 29, 2024. Maki avers that the purpose of the earth removal on the Site is to build a reservoir to irrigate the existing bog and eliminate the need for water withdrawal permits from the Weweantic River for that bog and nine additional acres of bogs to the north, The project does not generate a large amount of income because of the poor quality of the excavated materials and the utilization of some of those materials on site for the bog. Maki pays the Town -10 per yard under the Bylaw. Gilbert Lopes, the sole manager of Lopes, filed an affidavit averring that Lopes provides ‘management, administrative, clerical, accounting, and legal services to numerous companies ‘owned by members of the Lopes family. Lopes employs sixteen executive and administrative personnel. Lopes does not own any trucks, construction equipment, or vehicles and does not employ any truck drivers, equipment operators, or laborers. Lopes does not buy, process, or sell sand or gravel. Lopes never had an agreement with Maki relative to the Site and has never been issued a permit for the Site. Lopes did not engage in any activities described in the Beadlings? complaint. Glenn Reagan filed an affidavit stating that he is the safety director for the company that performs operations at the Site for Maki, Reagan visits the Site twice a week and has spoken to the Beadlings. He offered to have their house power washed and gave them coupons to a local car wash, Daniel Noons filed an affidavit stating that he is the general superintendent for the company working at the Site since 2011, He is familiar with all aspects of sitework and earth removal. Noons is not and never has been an employee of Lopes. Noons visits the Site twice a week, There is only one excavator on the Site, as well as a watering truck and a sweeper to mitigate any escape of dust or sand, No rock crushing equipment is used at the Site. Thelimitation on the number of truck trips means that not more than 100,000 cubic yards of material can leave the Site in one year and the project will take years to complete. On January 26, 2022, Noons went before the Committee, which voted unanimously to extend the permit for the Site through January of 2024. From September of 2022 through April of 2023, a large amount of the Site was left disturbed and exposed with the potential for sand to blow off the Site. To address the concems of residents at the public hearing, Noons completed the sloping, loaming, and seeding of the southerly and easterly slopes at the Site to diminish the escape of sand. The project is on pace to be completed by March of 2024. Noons has not received complaints from any abutters to the Site other than the Beadlings. The Minutes of the Committee's January 26, 2022 Meeting show that Noons informed the Committee that the project was half done but needs another few years to complete because the material is difficult to move. Noons stated that the estimated remaining yardage was 200,000 cubic yards. The Committee voted to amend the Order of Conditions Map 83 Lot 1 to be finished in January of 2024, Registered professional engineer William Madden filed an affidavit stating that he has 35 years of experience designing cranberry bogs and associated water supply projects. He avers that the construction of cranberry bogs necessarily requires earth removal, as does the construction of a nearby reservoir to water the bogs. Madden further avers that the earth removal at the Site is being conducted to support land in agricultural use, the construction of a reservoir for the bog. The reservoir on the Site has a capacity of 180 acres per foot or 1.5 times the annual registered water withdrawal, a normal standard for cranberry agriculture. The lowest three to five feet of the reservoir and 30-35 acre-feet are not usable due to the pump suction configuration. Madden opines that the James affidavit is inaccurate in its description of thevolume of the reservoir on the Site, as is the DEP letter. Madden opines that a reservoir on the Site is superior to and more reliable than a multi-use river system where multiple users compete for water from the same source. Madden avers that not all sand contains silica and it is unknown whether silica is present in the sand on the Site, which has not been tested. Section 9.1.3a and 9.1.3b of the Bylaw establish a seven-member Committee comprised of three representatives of the Board of Selectmen, two members nominated by the Cape Cod Cranberry Growers Association, one member nominated by the Carver Board of Health, and one member of the trucking industry. Section 9.1.3¢ states: “No committee action shall be taken without a quorum of four (4) members (except to continue a hearing in the absence of a quorum), and no decision shall be made without the vote of a majority of the members present.” Section 9.1.4. of the Bylaw prohibits earth removal without the issuance of a permit by the Committee. In a Residential-Agricultural District, earth removal is allowed if permitted under the Bylaw. Section 9.1.5 requires the submission of a site plan prepared by a professional registered engineer. Section 9.1.7a requires the Committee to determine that the proposal generally conforms to the principles of good engineering, sound planning, correct land use, and provides for the proper and reasonable reuse of available topsoil if appropriate. Section 9.1.7e requires the Committee to set a bond or other performance guarantee to be held by the Town until completion of the work and satisfaction of the conditions of the permit. DISCUSSION The Beadlings seek a preliminary injunction requiring the defendants to cease all earth removal activities at the Site. A party seeking a preliminary injunction must demonstrate a likelihood of success on the merits of his legal claims, that irreparable harm will result from the 10denial of an injunction, and that in light of his likelihood of success on the merits, the risk of irreparable harm to him outweighs the potential harm to the non-moving party in granting the injunction. Doe v. Worcester Pub. Sch., 484 Mass. 598, 601 (2020); Garcia v. Department of Housing and Community Develop., 480 Mass. 736, 747 (2018). The granting of an injunction lies in the sound discretion of the court. Foster v. Commissioner of Corr., 488 Mass. 643, 651 (2021). Certiorari Review The certiorari statute, G.L. c. 249, § 4, permits judicial review to correct substantial errors of law apparent on the administrative record. Abner A. v. Massachusetts Interscholastic Athletic Ass'n, 490 Mass. 538, 546 (2022). Such review is limited to a determination of whether a goverment body's decision is arbitrary and capricious, unsupported by substantial evidence, or based on an error of law. Id. ‘The Beadlings contend that the issuance of the 2023 Permit was invalid because the activity at the site is impermissible commercial mining and not merely “Agricultural Excavation” under the Bylaw. See Henry v. Board of App. of Dunstable, 418 Mass. 841, 846-847 (1994) (upholding denial of special permit where proposed removal of 300-400,000 cubic yards of gravel from 39-acre forest parcel was de facto quarry operation and not merely incidental to permitted agricultural use of Christmas tree farm); Old Colony Council-Bay Scouts of Amer. v. Zoning Bd. of App. of Plymouth, 31 Mass. App. Ct. 46, 49-50 (1991) (upholding denial of special permit where proposed removal of 460,000 cubic yards of fill from site was creation of sand and gravel quarry and not merely incidental to approved use as cranberry bog). “Agricultural Excavation” is defined in the Bylaw as: ‘The process of removing earth or other materials that is necessary and incidental to prepare a site for specific agricultural use. Agricultural excavation may include Fnthe creation of wetland resource areas such as ponds, canals, cranberry bogs, and land subject to flooding as defined under M.G.L. Ch. 131 § 40 and as defined in Massachusetts Wetlands regulations 310 CMR 10.00. Nothing in the Bylaw requires a finding that an applicant’s proposed work constitutes tural Excavation in order for the Committee to grant a permit. Moreover, under Section 9.1.8 of the Bylaw, no earth removal permit is required for normal cranberry related activities or other agricultural use. However, it appears that Maki represented that the project was incidental to the agricultural activity of cranberry bogs and the Committee granted a permit on that basis. ‘Nonetheless, on the record before the Court, the Beadlings have not demonstrated a clear likelihood of success on the merits of their claim that the Committee improperly granted the 2023 Permit because the earth removal activities at the Site are in fact a commercial mining operation and not the construction of an agricultural reservoir. The significant remedy of a preliminary injunction should not be granted unless the plaintiff makes a clear showing of entitlement thereto. Student No. 9 v. Board of Educ., 440 Mass. 752, 762 (2004). Accordingly, the Beadlings are not entitled to an injunction enjoining earth removal activities at the Site based on their certiorari claim. ‘Trespass and Nuisance ‘The Beadlings further allege that Maki and Lopes have created a nuisance and committed trespass through the migration of sand, dust, noise, and vibrations from the Site onto the Property. The Beadlings have no likelihood of success on their claims against Lopes because the record indicates that entity has not performed or controlled any work at the Site. Rather, it appears that the proper defendant to such claims is a related entity, Lopes Construction. With respect to Maki, a private nuisance is actionable when one property owner creates, permits, or maintains a condition or activity on her property that creates a substantial and 12unreasonable interference with the use and enjoyment of the property of another. Ratfigan v. Wile, 445 Mass. 850, 856 (2006); Doe v. New Bedford Hous. Auth., 417 Mass. 273, 288 (1994). A plaintiff alleging nuisance bears @ heavy burden, as the law of nuisance does not concern itself with the trifles or petty annoyances of everyday life. Rattigan v. Wile, 445 Mass. at 856. To constitute a nuisance, the injury or annoyance must substantially interfere with the ordinary comfort of human existence or cause a substantial detriment to the reasonable use or value of another's property. Id. ‘The Beadlings may be able to persuade a factfinder that the migration of sand from the Site onto their Property is a substantial and unreasonable interference with the enjoyment of their Property. See Lamoine v. J.J. Doyle Co., 338 Mass. 793, 793 (1959) (deposit ‘of quantities of stone dust onto plaintiff's property, covering the ground and penetrating the interior of his residence, constituted nuisance); Franscico Cranberries LLC v. Gibney, 1999 Mass. App. Div. 223, 224 (windblown sand from bog was nuisance where residents could not keep windows open or play outside)? Trespass is an invasion, without privilege, of the plaintif’s interest in the exclusive possession of his land, as by entry upon it. Amaral v. Cuppels, 64 Mass. App. Ct. 85, 90-91, rev. den., 445 Mass. 1102 (2005). A defendant may be liable for trespass where he sets in motion a force which in the usual course of events will invade and damage the property of another. Sheppard Envelope Co. v. Arcade Malleable Iron Co., 339 Mass. 180, 187 (1956) (emission of particulates blown by wind onto another’s property constitutes trespass). Even assuming that the 2023 Permit was properly issued, a license or permit to conduct a particular activity does not *The Beadlings appear less likely to prevail on their claim that noise and vibrations during trucking hours constitute a nuisance. Cf. Proulx v. Basbanes, 354 Mass. 559, 561 (1968) (vibrations caused by operation ‘of company from 5 a.m, to 9 p.m. constituted nuisance where they created devastating effects on plaintifP's house including cracks in plaintif?’s walls, loosened windows, and falling mortar). 13immunize the licensee from liability for negligence, nuisance, or trespass arising from that activity. Lummis v. Lilly, 385 Mass. 41, 46 (1982). Accordingly, the Beadlings may very well prevail on their nuisance and trespass claims. Irreparable Harm Nonetheless, on this record, the Court concludes that the Beadlings have failed to meet their burden to demonstrate that irreparable harm will result from the denial of an injunction. Inreparable harm is that harm which is not capable of vindication by a final judgment rendered at law or equity. Packaging Indust. Group, Inc. v. Cheney, 380 Mass. 609, 617 n.11 (1980). Monetary loss alone generally does not suffice to establish irreparable harm. Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 228 (2001); Hull Mun. ighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 399 Mass. 640, 643 (1987). The Beadlings contend that they and the public will suffer irreparable harm from the contamination of the drinking water supply caused by the earth removal activities at the Site. However, the record before the Court shows that the levels of PFAS in the Beadlings’ well are within the levels deemed acceptable by DEP and more importantly, there is no competent evidence that the PFAS originated from the Site. In addition, on this record, any suggestion that sand from the Site contains cancer-causing silica is entirely speculative. Accordingly, the Beadlings have not demonstrated irreparable harm warranting preliminary injunctive relief. Moreover, “[uJnexplained delay in seeking relief for allegedly wrongful conduct may indicate an absence of irreparable harm and may make an injunction based upon that conduct inappropriate.” Alexander & Alexander, Inc. v. Danahy, 21 Mass. App. Ct. 488, 494-495 (1986). ‘The Beadlings allege that the ongoing earth removal activities at the Site have adversely affected their Property since 2011 and have been illegal since 2016 at the latest, yet it appears that they 14never challenged the Committee’s grant or extension of the 2011 Permit, never filed suit until April of 2023, and failed to seek injunctive relief until June of 2023 when the reservoir project | was 80% complete. The plaintiffs’ lack of urgency in seeking injunctive relief belies their assertion of irreparable harm. Accordingly, they are not entitled to a preliminary injunetion enjoining the defendants’ activities at the Site. ORDER For the foregoing reasons, it is hereby ORDERED that Plaintiffs’ Motion For Preliminary Injunction and Waiver of Security be DENIED. Lo lor Brian S. Glenny Justice of the Superior Court DATED: July 21, 2023 | 15