Plymouth Superior Court ruled Feb. 5 in Morse Brothers, Inc vs. Town of Halifax and the Halifax Select Board, to uphold the restrictions on the earth removal permit issued by the Select Board Sept. 1, 2023.
Morse Bros. stated that even though they have been operating a cranberry business in the Town of Halifax for some 45 years, it was the first time they had been required to obtain a permit pursuant to the Halifax Earth Removal Bylaw.
The plaintiff, Morse Bros., filed a complaint alleging that the bylaw was improperly applied, and the conditions were invalid. Morse Bros. asked the court to issue a preliminary injunction to prohibit enforcement of the conditions.
Morse Brothers, Inc. asked the Court to declare that the restrictions would harm their business and stated in their filing that the Town had never asked for these restrictions in their Earth Removal Permit in the past. They further stated in their filing that “Morse Brothers has historically relied on the sand available on its Halifax property to renovate and maintain its bogs both in Halifax and in nearby towns.” During the past year, the complaint stated, Morse Brothers has been excavating soil, screening sand, and transporting the sand to Hanson as part of its renovation project.
They said that their company has engaged in these practices for decades, and its farming practices have been “in harmony” with the town. Morse Bros. received notice Sept. 1 that Halifax was requiring Morse Brothers to obtain an earth removal permit for the first time, pursuant to the Halifax Earth Removal Bylaw, or to “cease and desist any sand removal or transportation-related activities.”
On Oct. 4, 2023, Morse Bros. submitted a request for an exemption from the bylaw, noting that the bylaw negatively impacted its “ongoing cranberry bog maintenance” and “unreasonably infringed on protections of land uses for the primary purpose of agriculture under state law.” Simultaneous with its request for an exemption, Morse. Bros. also applied for an earth removal permit under the local bylaw.
Nov. 15, 2023, the Halifax Select Board granted the permit, subject to several conditions. The first condition limited the hours of the earth removal to between the hours of 7 a.m. and 2:25 p.m. Monday through Friday, and in no case on a legal holiday. The limitation applies also to the starting of engines, loading and unloading trucks, and preparation for commencing of work.
The permit also states that vehicles loaded with soil and/or sand shall not exceed 10 miles per hour while on Lingan Street. To avoid conflicts with school buses, vehicles traveling to and from the project location for the purpose described in the permit shall not be present on Lingan Street during school bus pick-up and drop-off times provided by the town.
Morse Bros. would also be limited to 25 trips per day of vehicles loaded with soil and/or sand.
Each truck and driver entering or exiting the property shall be provided by Morse Bros. with a list of rules and regulations regarding road safety. Each driver shall sign an acknowledging receipt of these rules and regulations. It is the responsibility of Morse Brothers to keep record of this information and provide it to the Town as requested. And no activity is allowed under the permit during the 2024 school vacation weeks of February 19 through 23 and April 15 through 19.
In their ruling, the court said it must assess “whether the moving party has shown that success is likely on the merits and that irreparable harm will result from denial of the injunction; and the risk of irreparable harm to the moving party outweighs any similar risk of harm to the opposing party”.
In applying these requirements, the court found that Morse Bros. was not entitled to a preliminary injunction because it has not shown proof of irreparable harm.