Beard v. Town of Salisbury

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; HENNESSEY
• Citation: 378 Mass. 435,392 N.E.2d 832
• Decision Date: 05 July 1979
• Parties: William B. BEARD et al. v. TOWN OF SALISBURY et al.

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392 N.E.2d 832 378 Mass. 435 William B. BEARD et al.
v.
TOWN OF SALISBURY et al. Supreme Judicial Court of Massachusetts, Essex. Argued March 7, 1979.
Decided July 5, 1979.

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Helen Murphy Doona, Newton (James A. Murphy with her), for plaintiffs.

James Lagoulis, Newburyport, for the town of Salisbury, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

In this case we are asked to consider the statutory and constitutional validity of a municipal by-law, adopted pursuant to G.L. c. 40, § 21(17), prohibiting the removal of sand, loam, or gravel from the confines of the town of Salisbury. Aggrieved by the application of the by-law to their earth removal operations, the plaintiffs brought a successful action in the Superior Court [378 Mass. 436] under G.L. c. 231A, § 2, seeking an order declaring the town's by-law to be invalid and unenforceable. The town appealed the court's ruling and we transferred the case here on our own motion. By a majority of this court, we affirm.

The facts are not in dispute. On March 16, 1968, the town adopted a by-law providing that the removal of soil, loam, or sand

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from any parcel of land not in public use shall be allowed only after a written permit is obtained from the board of selectmen. Article 19, § 1-1, Earth Removal By-Law. ¹ Two years later the town amended its earth removal policy by adopting an additional by-law, art. 19A, stating that "(n)o person who is an inhabitant of the town or noninhabitant of the town, company or corporation shall remove sand, loam or gravel from land not in public use out of the confines of the Town of Salisbury, Mass." ² Violation of art. 19A was made punishable by fines of $50 for the first offense, $100 for the second, and $200 for each subsequent infraction. ³

The plaintiffs in this action comprise a group of businessmen consisting of an earth removal or material contracting[378 Mass. 437] broker, owners of gravel pits located within the town of Salisbury, and several independent truckers, all of whom are working in contractual relationship with one another. At various times since 1965, the broker and truckers purchased and transported gravel out of the bounds of the town of Salisbury. These individuals continued their intercity earth removal business after passage of art. 19A; and during April and May, 1976, the plaintiffs jointly acted to remove loam, sand, or gravel from Salisbury locations to highway construction sites outside the town.

In response to the plaintiffs' conduct, the board of selectmen of the town initially issued cease and desist orders to those plaintiffs owning gravel pits. However, when compliance with the orders was not forthcoming, the selectmen instituted criminal complaints against the plaintiff-truckers in the District Court of Newburyport for violation of art. 19A; subsequently, the town obtained a restraining order in the Superior Court forbidding the plaintiffs from committing any further violations of art. 19A. For their own part, the plaintiffs brought this action seeking declaratory relief. It was consolidated with the action by the town to enjoin the plaintiffs' removal operations permanently, ⁴ and on May 27, 1977, a judge in the Superior Court, ruling on the parties' stipulation of facts, ⁵ determined that art. 19A was "arbitrary, unreasonable and invalid." In consequence, the town's outstanding restraining order was dissolved.

On appeal the plaintiffs advance what is basically a three-pronged challenge against art. 19A. They assert: (1) that the by-law is an unreasonable, and therefore [378 Mass. 438] excessive, exercise of the power the Legislature has conferred on municipalities to develop earth removal ordinances or by-laws; (2) that the by-law poses an impermissible burden on interstate and intrastate commerce; and (3) that the by-law, by effectively prohibiting the continuation of their pre-existing gravel removal business, unconstitutionally deprives them of interests in property. Because we believe the by-law exceeds the regulatory limits provided by the statute and cannot be sustained as a home rule

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by-law, we do not reach the latter two issues raised by the plaintiffs.

In commencing our consideration of the plaintiffs' claim that art. 19A extends beyond a municipality's power to fashion local earth removal ordinances or by-laws, we turn first to the enabling act for such ordinances or by-laws, G.L. c. 40, § 21(17). ⁶ Under the terms of this [378 Mass. 439] statutory provision, cities and towns are empowered to "prohibiting or regulat(e) the removal of soil, loam, sand or gravel from land not in public use in the whole or in specified districts of the town." Originally enacted by way of St.1949, c. 98, the law was passed in "order that removal of earth products (could) be subject to . . . regulation by a local community in the absence of a comprehensive zoning by-law." 1949 House Doc. No. 117, at. 3. Byrne v. Middleborough, 364 Mass. 331, 333-334, 304 N.E.2d 194 (1973). Butler v. East Bridgewater, 330 Mass. 33, 36, 110 N.E.2d 922 (1953). See North Reading v. Drinkwater, 309 Mass. 200, 209, 34 N.E.2d 631 (1941). ⁷ The broad purpose of the statute is to give municipalities the freedom to devise local solutions to the deleterious effects brought about by unrestrained earth removal. Butler, Supra. ⁸ See Dawson, Earth Removal and Environmental Protection, 3 Envt'l Aff. 166 (1974).

Our review of the instant by-law begins from the familiar proposition that local regulations, enacted...