2 Mass. App. Ct. 773 | Mass. App. Ct. | 1975
The plaintiff brought this bill in equity to restrain the defendant from removing earth from an 18.6-acre parcel of land owned by the defendant, claiming that such removal was in violation of the town’s zoning by-law and of its earth removal by-law adopted pursuant to G. L. c. 40, § 21 (17) (as amended through St. 1967, c. 870). After a trial, which included a view, the judge made detailed findings and rulings, and, pursuant to his
Both the town and the defendant have appealed, the town contending against the first part of the decree and the defendant against the second and third parts. The case is before us on a report of the evidence and the judge’s extensive findings which he adopted as a report of material facts (which are fully supported by the evidence). The judge also made comprehensive rulings and discussed at length the authorities upon which he relied.
The decree of the judge was correct for the reasons stated in his findings and rulings. Moreover, after those rulings were made, this court in Kelleher v. Selectmen of Pembroke, 1 Mass. App. Ct. 174, 184-186 (1973), ruled adversely to the defendant’s principal contention by upholding the constitutionality of the reasonable regulation of existing earth removal operations by means of a by-law adopted under G. L. c. 40, § 21 (17). The Supreme Judicial Court thereafter held that such a by-law is not subject to the existing-use provisions of G. L. c. 40A, § 5, and does not, on its face, deprive the owner of an existing operation without due process of law. Byrne v. Middleborough, 364 Mass. 331, 334-335 (1973).
The town’s earth removal by-law, as we interpret it, does not ban an operation of the kind conducted by the defendant but provides instead for the issuance of permits upon application and for the imposition of certain conditions in such a permit. The judge ruled, and we agree, that the earth removal by-law is a reasonable exercise of the police power of the town. However, in acting upon an application for a permit the selectmen must “act in a
Decree affirmed.