By By Dylan Thompson,The Berkshire Eagle

Copyright berkshireeagle

DALTON — After a long wait, residents affected by the Berkshire Concrete Corp. sand mine finally have a reason for optimism.

On Tuesday night, the Zoning Board of Appeals resolved a monthslong dispute over the lack of mitigation enforcement from Brian Duval, the town’s building commissioner and zoning enforcement officer.

Duval had refused the Select Board’s request that Berkshire Concrete Corp.’s parcel 105-16 be loamed and hydroseeded, leading the board to appeal to the ZBA.

On a motion from member Caleb Darby, the Zoning Board unanimously approved a petition from Select Board Chair Robert Bishop regarding Duval’s refusal to enforce the mitigation of parcel 105-16. Duval will now have to order Berkshire Concrete Corp. to remediate or cover parcel 105-16 fully.

“This is a moment within our generational story in Dalton against [Berkshire Concrete Corp.] to feel optimistic,” Dalton Clean Air Coalition member David Pugh said.

Zoning Board member Edward Gero recused himself from the public hearing and vote because he is on the Board of Health, according to Town Planner Janko Tomasic.

Tomasic will inform Duval of the Board’s decision, and either Duval or the Zoning Board will write a letter ordering Berkshire Concrete to remediate the parcel fully. If the decision is appealed, Berkshire Superior Court would hear the appeal.

“I know it wasn’t an easy decision, but I am very thankful for their ruling on this issue,” Bishop told The Eagle via email on Wednesday.

The Dalton Clean Air Coalition and Clean Air Committee continue to push for stronger oversight of Berkshire Concrete Corp. — which is owned by Petricca Industries — whose sand-mining operation off Florence and Prospect streets and Raymond Drive has drawn renewed complaints about health, safety and quality of life from nearby residents.

During the Zoning Board’s deliberations, they focused on the bylaw, Section 350-61, earth removal, which states that the entire area except exposed ledge rock should be covered with not less than four inches of good quality loam, which should be planted with vegetation that can prevent soil erosion using grass or ground cover.

Member Anthony Doyle said it is clear that Berkshire Concrete was conducting earth removal and that Duval should demand they do more to remediate. Darby agreed, adding that they should have to remediate the parcel because they didn’t have a special permit for it.

More than 25 people attended the public hearing, with the majority in support of Bishop’s petition on behalf of the Select Board. Tomasic read seven letters in favor of the petition.

Duval explained his reasons for not enforcing the request, citing his July 29 letter to the Select Board. In that letter, he addressed bylaw Section 350-90 and Section 350-61, which the Select Board felt were not being fully complied with.

Section 350-90, says that no land or structure should be used or occupied to create any dangerous or objectionable conditions such as fire, dust or any other form of air pollution.

In his July 29 letter, Duval said the two bylaws in question — Section 350-90 and Section 350-61 — did not apply to the parcel in this instance and therefore he would not order Berkshire Concrete Corp. to loam and hydroseed the area in question.

According to Duval’s letter, Section 350-90 does not apply to the parcel because it is currently vacant and Berkshire Concrete Corp. is not operating on it.

Duval added that Section 350-61 also does not apply because that is only for parcels of land that have a current special permit issued by the Planning Board for earth removal. Berkshire Concrete Corp. does not have such a permit issued for the parcel, according to Duval.

At the hearing on Tuesday, Duval said he needs to have a bylaw that is applicable to the parcel for him to feel comfortable enforcing the request.

Duval also addressed a comment from numerous residents about his reluctance to enforce the request because Berkshire Concrete would appeal it. “I have no fear of Berkshire Concrete appealing it,” he said.

Bishop spoke after Duval and said that sometimes you have to make uncomfortable decisions, and it’s what Duval is paid to do. “We want that covered up, and there’s no excuse for it [not to be],” Bishop said.

The back and forth began on July 14 when Select Board member Tony Pagliarulo read a letter that was drafted by the town’s attorney to be sent to Duval, requesting that he order Berkshire Concrete to loam and hydroseed all previously mined areas of parcel 105-16.

At their meeting on Aug. 18, the Select Board voted to approve appealing Duval’s decision to the Zoning Board of Appeals with member Dan Esko as the lone vote against.

Berkshire Concrete filed its special permit application on Sept. 17 to expand its gravel-mining operations, sparking new concern among residents. The application details the company’s plan to extract gravel from parcel 105-12 by constructing an access road that will impact two other parcels.

A Planning Board hearing on Nov. 19 will determine whether the company can proceed.