The Appeals Court heard argument in a challenge by Morse Brothers, a cranberry grower, to a Halifax earth‑removal permit that limits daily truck trips, imposes speed and timing restrictions, requires groundwater monitoring, and assessed a per‑cubic‑yard fee.
Morse Brothers contends the town’s requirement that it secure a permit for sand movement used in cranberry cultivation is precluded by the Dover Amendment (G.L. c.40A §3), which protects agricultural uses from local special‑permit requirements. Appellant counsel Nick Rosenberg argued that the sand movement is undisputedly agricultural — “Moving sand on bogs and cranberry bogs stimulates root growth” — and that the town cannot require a special‑permit-style approval for farming activity.
The town, represented by John Huxom, countered that Halifax’s earth‑removal bylaw is not a zoning special‑permit regime, that it was enacted under G.L. c.40, §21 (earth removal), and that its permit conditions are aimed at environmental protection and public‑safety concerns, including protections for nearby drinking‑water wells. Huxom pointed to waiver provisions in the bylaw and argued the town’s conditions (including groundwater testing and a 4‑foot setback from groundwater elevation) are tailored to environmental risk.
The panel probed the practical effects of the permit conditions — including limits of “25 trips per day,” truck speed restrictions, and a per‑cubic‑yard fee of 50¢ that counsel described as arbitrary in the record — and whether other remedies (traffic enforcement, nuisance law) would address concerns without imposing a permitting requirement on farming. Morse Brothers urged the court to treat agricultural activity as exempt from the town’s permitting scheme; the town responded that reasonable regulation that does not prohibit farming is permissible under the statutory framework.
The court took the case under advisement after argument. No decision was announced at argument.