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Trouble in the rubble
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Cape Cod Times (Hyannis, MA)-June 30, 2003
Author: KEVIN DENNEHY

BOURNEDALE - When Alice and Robert Bedugnis built a home near the Cape Cod Canal in the late 1980s, they thought they were moving next door to a relatively quiet excavation business.

Once in a while, they'd see a truck take a load of sand, and then be gone. Only a couple of vehicles were on site. That, they figured, would be the extent of it.

Then the trees beyond their back yard started falling, and a growing sand and gravel operation seemed to inch closer to their home yearly.

With it came the cacophony of beeping trucks, grinding conveyor belts, and the swirling dust they say has made it nearly impossible to go outside or keep their windows open.

Now they're trying to stop it.

Saying Cape Cod Aggregates has grown beyond what is legally allowed at the site under current zoning laws, the Bourne couple has asked the town to shut them down.

While company officials insist they're protected by "grandfathered" rights that predate zoning, the Bedugnises say the business is much larger than in years past.

On July 16, the town's zoning board must decide whether the business violates the law or is protected by it.

"When we moved here, there was nothing going on in there," said Alice Bedugnis, pointing to what her family calls a "dirt farm" less than 100 feet from her home on Heather Hill Road.

"Now, I've lost all enjoyment of my home. We can't have cookouts. We can't sit outside and listen to this crap."

Cape Cod Aggregates officials, who bought the 126-acre gravel pit in 1995, say they're using the land just as others did for decades before them: mining sand and rock, and crushing large stones.

And if it's moving closer to the neighbors, they say, that's just because you can't mine the same area twice.

While the business violates current zoning bylaws - the area is zoned for "scenic development" and homes - they say it's been used for mining since 1957 when there were no restrictions.

"Pre-existing non-conforming" land uses are protected, said Diane Tillotson, the lawyer for Cape Cod Aggregates. "This has become a very logical and gradual expansion over the years."

Located off the Scenic Highway, the Bournedale site was first mined by John Gallo, who leased the land to get sand and gravel to use on construction projects.

From 1964 until 1995, Simeone Stone Corp. continued to mine for sand, stone and gravel to varying degrees depending on the economy.

Eight years ago, the land was bought by Lorusso and Sons Inc., one of the state's top gravel producers. They also have plants in Hyannis and Falmouth. They use about a dozen pieces of equipment, including excavators, front-end loaders and a stone crusher.

Legally able to dig 35 feet into the ground, business officials predict they'll be done with the Bourne site in seven to 10 years.

Business starts on the Bournedale site at about 5:30 a.m. weekdays, and continues until about 4 p.m.

On Saturday, the sounds vibrate through the morning. But a strong wind can whisk dust and dirt at any time of the day, says Robert Bedugnis.

He laughs that town officials now classify the area as a "scenic development" area.

"Scenic?" he says. "This is more like Kuwait."

It wasn't until this spring that the Bedugnises filed an official complaint with town hall.

In a March 31 response, Bourne Building Inspector Roger Laporte said the company has done nothing illegal.

The Bournedale pit was there before the surrounding homes, he said last week. And the nature of land mining is to expand around the property.

"How do you use an entire gravel pit in one year?" he said. "The second shovel is an expansion."

Infuriated by Laporte's response, the Bedugnises hired a lawyer to fight for the closure of the business.

At a recent hearing, they carried large copies of aerial photos taken of the property from the early 1970s through 2001.

The photos show that much more land has been cleared and mined in the past decade.

They also reveal, Robert Bedugnis insists, that only two or three vehicles were on the site in the late 1970s, evidence that the business has expanded.

Tillotson says the photographs prove that land mining has occurred for years.

The company insists they've tried to make the operation less intrusive on neighbors. They have moved some operations away from the property line, installed berms to block the sound and sight of the pit, and moved interior roadways away from homes.

"We have tried to work with the Bedugnises on some of the issues they have out there," said Ed Lambert, who works on development and real estate issues for Cape Cod Aggregates.

In a letter to the zoning board June 16, Bourne Town Counsel Robert Troy said the business owners must prove they haven't expanded.

The final evaluation, however, rests with the zoning board. And, Troy said, there are three tests to determine if a current land use fits within exempted nonconforming uses:

Whether the current use reflects the "nature and purpose" of the use in place when zoning changed.

Whether there is a difference in "quality or character, as well as the degree, of use."

Whether the current use is "different in kind in its effect on the neighborhood."

"A modification of a nonconforming use that implicates any of these tests constitutes a change in use," Troy wrote.

In an interview last week, Troy called them an "amorphous" set of tests that the zoning board will have to decide. "They're difficult tests to objectively satisfy."

Record Number: 0FC0208AE0D25933