42 Mass. App. Ct. 458 | Mass. App. Ct. | 1997
The principal issue raised by this appeal is the
LMC owns approximately fifty-seven acres of land located on Jungle Road in Leominster. The land consists, in large part, of an outcropping of rock. LMC had been using the property to excavate and remove stone and to perform other general quarrying activities.
On April 4, 1995, Liberty Commons Realty Trust (Liberty Commons), the owner of nearby land, wrote to the director to complain about LMC’s stone removal activities. In its letter, Liberty Commons contended that LMC’s activities are not a permitted use; are not incidental to the excavation or grading necessary for construction permitted under a valid building permit or in connection with an approved subdivision; are extremely hazardous; and present significant risks to the neighborhood in general and, in particular, to children playing in the area. In response, the director issued a determination on April 24, 1995, stating that LMC’s activities were not permitted in the planned development district in which the subject land is located. On May 5, 1995, pursuant to G. L. c. 40A, § 14, and article IV, § 22-23 of the city’s zoning ordinance, LMC appealed from this determination.
On May 31, 1995, the board held a public hearing to consider LMC’s appeal from the director’s interpretation. After public comment, the board discussed the appeal and voted. The board’s vote upheld the director’s decision.
Prior to trial, both parties filed motions for summary judgment, and, after oral argument, the motion judge issued a written memorandum of decision and order denying LMC’s motion and allowing that of the board. The motion judge
During the pendency of this action, on December 29, 1995, Liberty Commons, Wildwood Realty Trust, and John K. Tupper, owners of land that abut or are in the immediate vicinity of the LMC site, filed a motion to intervene as of right. A second judge of the Superior Court heard oral argument on this motion on March 15, 1996, and on March 21, 1996, denied the abutters’ motion to intervene. The judge ruled that the abutters’ “interests are not shown to be unprotected by the defendants’ efforts in this litigation.” The abutters’ subsequent motion for reconsideration was likewise denied on April 23, 1996. The abutters now appeal from this ruling.
1. Summary judgment. On appeal, LMC argues that the entry of summary judgment in favor of the defendants was in error because, as a matter of law, the removal of stone and rock is a permitted use under § 22-17(d) of the zoning ordinance. The granting of summary judgment will be upheld on appeal where the moving party has met its burden of demonstrating that there are no material facts in dispute and it is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). John B. Deary, Inc. v. Crane, 4 Mass. App. Ct. 719, 722 (1976). We conclude that the award of summary judgment was proper in this case because there are no material facts in dispute and the defendants have shown that they are entitled to judgment as a matter of law.
In § 22-17(d) of the zoning ordinance, entitled “Generally Permitted Uses,” the removal of sand, gravel, or loam is an explicitly permitted use of land in all zoning districts of the city, subject to the provisions of city ordinances regulating such removal. LMC contends that a fair reading of this section of the zoning ordinance should be that removal of earth products in general is a permitted use in all zoning districts of the city, subject to any general ordinances regulating such removal.
LMC first argues that G. L. c. 40, § 21(17), has generally
It is a familiar principle of interpretation that express mention of one matter excludes by implication other similar matters not mentioned. Selectmen of Hatfield v. Garvey, 362 Mass. 821, 824 (1973). Since the removal of sand, loam, and gravel is an expressly permitted use in all zoning districts, the exclusion of rock and stone removal from the list of permissible uses was presumably deliberate and not an oversight. See ibid. The court cannot read into the ordinance an unexpressed exception. Foster v. Mayor of Beverly, 315 Mass. 567, 570 (1944). Thus, where the only earth product removal listed under permissible uses in the zoning ordinance is the removal of sand, loam, and gravel, we decline to read into the ordinance permission for the removal of other earth products. Compare Livoli v. Zoning Bd. of Appeal of Southborough, post 921, 923 (1997).
LMC also contends that § 22-43(c)(12) of the zoning ordinance governing water supply protection districts, which prohibits the “mining of land except as incidental to a permitted use,” implies that the mining of land outside of that
Finally, LMC contends that the absence of a general ordinance prohibiting the excavation or removal of stone and general quarrying activity, where the municipality is authorized to enact such a prohibition under both G. L. c. 40, § 21(17), and G. L. c. 40A, indicates that LMC is free to remove stone from its property without restriction or regulation. We disagree. Municipalities wishing to regulate earth removal have the option of proceeding under either c. 40A or c. 40, § 21(17), or both. Goodwin v. Selectmen of Hopkinton, 358 Mass. 164, 170 (1970). “These two modes of regulation need not be mutually exclusive.” Toda v. Board of Appeals of Manchester, 18 Mass. App. Ct. at 320. There is certainly nothing, however, which requires a municipality wishing to regulate earth removal to enact both general and zoning ordinances in order to do so. Here, the city proceeded under c. 40A only, and its zoning ordinance prescribes certain permitted uses with respect to earth removal. “There is no requirement that zoning by-laws or ordinances follow any particular pattern or structure. They may take the form of prescribing uses permitted or prescribing uses prohibited, or a combination of the two.” Harvard v. Maxant, 360 Mass. 432, 436 (1971). The excavation and removal of stone and general quarrying activity are not made lawful solely because such activities are not expressly prohibited either by § 22-17(d) of the zoning ordinance or by a general municipal ordinance regarding removal or quarrying. See ibid, (defendant’s use of private airplane landing strip not made lawful because not prohibited by one section of zoning by-law where use as landing strip was not one of the permitted uses listed for subject land in another section of by-law).
2. Costs awarded against LMC. In the judgment dismissing
3. Intervention. Because the interests of the abutters are adequately represented and protected by the defendants, we need not reach the question whether intervention should have been allowed.
4. Conclusion. The judgment is to be modified to delete the award of costs against LMC, and, as so modified, the judgment is affirmed. The order denying the motion to intervene is affirmed.
So ordered.
In order to overturn the director’s interpretation, four out of five of the board members would have to have voted to overturn. Here, only three out of five of the board members voted to reverse the director’s decision.
We note that the director suggests that, as an incidental use, the excavation and removal of stone would be permitted. If LMC’s rock removal activities were “simply incidental to the excavation or grading necessary for