Board of Selectmen of Norwell v. Jarvinen

• Decision Date: 09 April 1982
• Citation: 13 Mass.App.Ct. 1024,433 N.E.2d 912
• Parties: BOARD OF SELECTMEN OF NORWELL v. Toiva JARVINEN.
• Court: Appeals Court of Massachusetts

Page 912

433 N.E.2d 912

13 Mass.App.Ct. 1024

BOARD OF SELECTMEN OF NORWELL v. Toiva JARVINEN.

Appeals Court of Massachusetts, Plymouth.

Argued Dec. 9, 1981.

Decided April 9, 1982.

Henry S. Levin, Quincy, for defendant.

Edward P. Ryan, Town Counsel, Scituate, for plaintiff.

Before ARMSTRONG, PERRETTA and KASS, JJ.

RESCRIPT.

The issue raised by the defendant's appeal is whether the Norwell earth removal by-law has any effect on the earth excavation and soil by-products business operated by the defendant in a residential zone of Norwell since long before the dates of the adoption and the amendment of the by-law in dispute. We affirm the judgment which enjoins him from excavating soil but allows the removal of stockpiled materials pursuant to a permit.

Using the authority conferred upon it by G.L. c. 40, § 21(17), Norwell adopted, in 1958, an earth removal by-law which required that a permit be obtained prior to the removal of any soil, loam, sand or gravel from any land in Norwell not in public use. The defendant obtained the requisite permits until 1966, when a further application was not approved, and he thereafter made no other request for a permit. The by-law was amended to its present form in 1970, and § 1 expressly prohibits the "removal of soil loam, sand or gravel from land located within the Residential and Conservation Districts, as defined in the Norwell Zoning By-Law ... except as otherwise provided by law and except for Town use with the approval of the Board of Selectmen."

1. For the reasons discussed in Beard v. Salisbury, 378 Mass. 435, 438-441, 392 N.E.2d 832 (1979), and Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7, ---, Mass.Adv.Sh. (1979) 2210, 2219, 393 N.E.2d 858 (1979), we reject all the defendant's contentions assailing Norwell's statutory power to provide only two narrow exceptions to its prohibition of earth removal activities within its residential and conservation zones. The defendant's reliance on Kelleher v. Selectmen of Pembroke, 1 Mass.App. 174, 182-184, 294 N.E.2d 512 (1973), and Kingston v. Hamilton, 2 Mass.App. 773, 774, 321 N.E.2d 832 (1975), for the proposition that the selectmen must reasonably regulate earth removal activities, overlooks the fact that those cases were dealing with the propriety of rulings on applications for permits in accordance with by-laws authorizing earth removal in the first instance.

2. The defendant's claim that the Norwell earth removal by-law is so entwined with the zoning by-law that the former must be regarded as a zoning provision is also disposed of by Lovequist v. Conservation Commn. of Dennis, 379...