1 Mass. App. Ct. 174 | Mass. App. Ct. | 1973
The plaintiff has appealed from a final decree of the Superior Court dismissing his amended bill of complaint brought against the board of selectmen (board) of the town of Pembroke (town) to secure an injunction against the town’s
In 1970 one Walsh, a real estate broker doing business in Pembroke, acquired a tract of vacant land comprising some one hundred fifty acres which lay partly in Marshfield but mostly in Pembroke, which was bound northerly for a total distance of approximately 1,500 feet in Pembroke by a public way known as Oak Street and easterly in Marshfield by a portion of the Southeast Expressway (Route 3) and which was bisected from north to south in Pembroke by a dirt road but public way known as Winter Street, which had formerly run from Pembroke to Marshfield but had been dead ended by the construction of the expressway in 1962 or 1963. No active earth removal operation was in progress on any part of the tract at the time of Walsh’s purchase, although undisclosed quantities of gravel had been removed in the past from a twenty or twenty-five acre portion of the tract in Pembroke, principally in connection with the construction of the expressway. A strip of the Pembroke portion of the tract lying along its westerly boundary and having a frontage of approximately five hundred sixty feet on Oak Street was zoned for residential uses; the balance of the Pembroke portion was zoned for industrial uses.
Walsh proceeded to have an engineer prepare a plan for the industrial development of the Pembroke portion zoned for that purpose which showed the boundaries of the entire
The plaintiff purchased the entire tract from Walsh in May of 1971.
The actual removal of gravel was accomplished by means of heavy covered trucks, mostly tractor trailer units, which departed the property by a newly constructed access road, turned easterly on Oak Street through a district zoned for industrial purposes, proceeded thence by Oak Street and various other public ways approximately one quarter of a mile to the expressway in Marshfield, and thence to their destinations at construction projects in Boston. The removal operation continued on a more or less daily basis commencing between 4:30 to 5:30 a.m. and ending at 4:30 to 5:00 p.m. During the period from April to October, 1971, there were a total of some 28,000 truck movements into and out of the property. A simple calculation based on the number of trucks employed indicates that during working hours a truck either departed from or returned to the property at an average rate of one a minute. People living in homes located on Oak Street and on other public ways lying some four or five hundred feet to the westerly of the access road or of the actual excavation had been unreasonably disturbed by the noise generated by the operation of such trucks and of the equipment used to load them, particularly in the early hours of the morning.
By virtue of action taken at a special town meeting held in September the town adopted a comprehensive earth removal by-law which took effect on October 14, 1971.
“No permit... shall be issued if such removal will: 1. Endanger the general public health, safety or convenience or constitute a nuisance. 2. Result in detriment to or depreciation of neighboring properties or interfere with owners or occupants of neighboring properties in the normal use and enjoyment of their properties by reason of noise, dust, vibrations, traffic or drainage conditions. 3. Extend within three hundred (300) feet of a public way, .. . nor if there is insufficient vegetative barrier to remain on the property after excavation as proposed to prevent view of the area from a way. This provision may be waived by the . . . [board] if said removal operation will result in said site being left at approximate level or grade of adjacent way” (art. 12B E). The board is given the “right to exempt... from any or all of the requirements of this bylaw” operations consisting of less than five hundred cubic yards, operations in assistance of the cultivation of cranberry bogs, and “[e]xisting removal operations so long as the quantity of earth materials proposed to be removed is consistent with the past use and extent of said existing removal operation” (art. 12BI). The by-law concludes with penal provisions for the violation thereof (art. 12B K).
Immediately following the effective date of the by-law the selectmen caused the police to stop trucks leaving the plaintiffs property. By vote of the selectmen on October 18, 1971, Walsh and other earth removal operators were given some form of “temporary permit” to continue their operations pending hearings on applications under the by-law.
We have that decision before us, as well as extensive testimony by the chairman of the selectmen as to the matters considered by the board and the reasons for its decision, including certain considerations and reasons not appearing on the face of the written decision.
The board noted that some 350,000 cubic yards of material had been removed since the effective date of the March plan and insisted on the preparation of a currently accurate plan which would show the present and proposed contours with respect to the proposed excavation site and adjacent areas. The board noted that the March plan did not contain the location of Winter Street (through which the plaintiff proposed to excavate), said that it had no authority to abandon or relocate a public way without authority from a town meeting, and insisted upon a plan which would show the present location of Winter Street and how the plaintiff proposed to excavate in its vicinity without affecting it. The board specifically pointed out other deficiencies in the plaintiffs presentation, including lack of any evidence of the availability to the plaintiff of the 16,000 cubic yards of loam which Walsh had admitted would be needed to cover the proposed excavation site after completion of the work, and lack of sufficient data to insure that Pudding Brook, its vegetation and wildlife, would not be adversely affected by silting and surface runoff. The board remarked that the proposed excavation would ex
Although the board could legitimately consider the noise, dust and vibration effects of truck traffic on the value and enjoyment of neighboring properties, it could not properly consider, or base its denial of the application on a likelihood, that truck traffic would create or continue a traffic hazard on Oak Street. Stow v. Marinelli, 352 Mass. 738, 742. Goodwin v. Selectmen of Hopkinton, 358 Mass. 164, 167-168. Glacier Sand & Stone Co. Inc. v. Board of Appeals of Westwood, 362 Mass. 239, 240-241. The board
It should be apparent from what has already been said that we see nothing “unreasonable, arbitrary, whimsical, or capricious” in the board’s actions or decision within the meaning of the rule stated in the Butler case (330 Mass, at
Final decree affirmed.
As it will not affect our disposition of this case we pass the point that the prayers of the amended bill seek relief against the town, which has not been joined as a party defendant.
“Towns may, for the purposes hereinafter named, make such... by-laws, not repugnant to law, as they may judge most conducive to their welfare, which shall be binding upon all inhabitants thereof and all persons within their limits. ... (17) For prohibiting or regulating the removal of soil, loam, sand or gravel from land not in public use in the whole or in specified districts of the town. The superior court shall have jurisdiction in equity to compel compliance with any... by-law made hereunder.... Any ... by-law prohibiting such removal hereunder shall not apply to any soil, loam, sand or gravel which is the subject of a permit or license issued under the authority of the town or by the appropriate licensing board of such town or by the board of appeal, or which is to be removed in compliance with the requirements of a subdivision plan approved by the town planning board.” See, generally, Butler v. East Bridgewater, 330 Mass. 33; Stow v. Marinelli, 352 Mass. 738; Goodwin v. Selectmen of Hopkinton, 358 Mass. 164; Glacier Sand & Stone Co. Inc. v. Board of Appeals of Westwood, 362 Mass. 239. Cf. North Reading v. Drinkwater, 309 Mass. 200.
The facts recited herein are a composite of those found by the judge, those found by ourselves, and those recited in the hereinafter discussed decision of the selectmen which are not challenged by the plaintiff. We warn that we are somewhat hampered in our understanding of certain geographical facts because the stenographic transcript does not disclose what portions of various plans and photographs were being referred to by the witnesses as they testified in court. See Seekonk v. John J. McHale & Sons, Inc. 325 Mass. 271,272.
We do not know what, if any, zoning restrictions applied to the Marshfield portion of the property.
The selectmen seem to have been personally unaware of the plaintiff or of his relationship to the property until the present proceedings were commenced on November 11, 1971. Walsh continued to hold a substantial mortgage on the property and to conduct all negotiations with the selectmen through the completion of the public hearing hereinafter referred to.
By virtue of other action taken at the same town meeting the provisions of so much of the zoning by-law as had theretofore related to earth removal were “revoked.”
We mention here only those types of conditions with which the selectmen concerned themselves in the decision hereinafter discussed.
The others to whom similar permits were given were described as “very small two and three truck operations” who or which have apparently been allowed to continue their operations “until this case is over.”
The application is not before us, and we do not know whether it was intended
The trial judge, at the insistence of the plaintiff, excluded questions put by town counsel to the chairman of the selectmen which were designed to elicit information as to the evidence introduced at the hearing before the selectmen. One who is really desirous of attacking the reasonableness of the action of a board under the circumstances prevailing in this case may have such evidence brought before the court by an extension of the return to a petition for a writ of certiorari. See Butler v. East Bridgewater, 330 Mass. 33,39; Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 81, 82-87, 92-93. The plaintiff in the present case shut himself off from that particular avenue of review by bringing suit against the selectmen before they had rendered any decision on his pending application.
The chairman was the only member of the board called by the plaintiff, whose counsel was allowed great latitude in engaging in argumentative dialogue wit h t he witness. In some instances the answer appeared to be personal to the witness, while in others the answer appeared to reflect the thinking of the entire board. In either event, the testimony so elicited was the evidence most favorable to the plaintiff on the issue whether the hoard had acted in an arbitrary or capricious manner in denying the plaint iffs applica! ion.
We express no opinion on the question whether the board could properly have concerned itself with the visibility of the excavation site from the portion of the expressway lying in Marshfield. We assume it will not do so at any future hearing.
Other cases involving the application of zoning by-laws to earth removal operations which have not already been cited include the following: Lexington v. Menotomy Trust Co. 304 Mass. 283, 284; Saugus v. B. Perini & Sons, Inc. 305 Mass. 403, 406-407; Raimando v. Board of Appeals of Bedford, 331 Mass. 228; Lexington v. Simeone, 334 Mass. 127, 131. In the case last cited it was said, “There is no constitutional right to convert wild land into waste land” (p. 130).