Butler v. Town of East Bridgewater

• Decision Date: 02 March 1953
• Citation: 330 Mass. 33,110 N.E.2d 922
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BUTLER et al. v. TOWN OF EAST BRIDGEWATER et al.

Page 922

110 N.E.2d 922

330 Mass. 33

BUTLER et al. v. TOWN OF EAST BRIDGEWATER et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Nov. 7, 1952.

Decided March 2, 1953.

Maurice J. Murphy and Henry C. Gill, Brockton, for plaintiff.

Robert E. McCarthy, Brockton, for defendants.

Before QUA, C. J., and LUMMUS, SPALDING, WILLIAMS and COUNIHAN, JJ.

QUA, Chief Justice.

This suit was originally brought by Butler against the town and its selectmen. One Merry was allowed to intervene as a plaintiff on the ground that he was a landowner in the town who had problems similar to those of the original plaintiff. No question has been raised as to his right to intervene.

The suit is brought under G.L. (Ter.Ed.) c. 231A, inserted by St.1945, c. 582, § 1, for a decree declaring the rights of the plaintiffs in the matter of removal of loam from tracts of land in the town owned respectively by them. The defendants have appealed from a final decree ¹ favorable to the plaintiffs. The evidence received in the Superior Court is reported.

By St.1949, c. 98, the Legislature amended G.L. (Ter.Ed.) c. 40, § 21, by adding to the list of purposes for which towns make by-laws the following: '(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.' ² Thereafter East Bridgewater adopted a by-law designated as Article 22, Section 1, which reads as follows: 'No person shall remove any soil, loam, sand or gravel from any land in the town not in public use unless such removal is authorized by a permit issued by the board of selectmen, except in conjunction with construction of a building on the parcel and except for the continued operation on the same parcel of an existing sand and gravel pit. No such permit shall be issued until an application therefor is filed with said board, said board shall hold a public hearing on the application and notice of the filing of such application and the date and time of the public hearing thereon shall be advertised in a paper published in the county, seven days at least before the public hearing.'

The plaintiff Butler claims to be the owner of about fifty-two acres of land, and the plaintiff Merry claims to be the owner of about one hundred fifteen acres. Each plaintiff applied to the selectmen for a permit under the by-law, and each application was denied on the stated ground that 'the land in the petition has been used solely for agricultural purposes and the removal of loam from the premises would cause irreparable injury to the premises so as to render them unsuitable for that purpose.' The plaintiff Butler asserts that his design is to develop his tract for sale in house lots, and that all the loam which he seeks to take away from the land was stripped in connection with his development and piled on the land before the by-law took effect. The plaintiff Merry asserts that his design is to improve his tract for agricultural purposes by draining it and respreading the loam, and that such sales of loam as he has made and desires to make are incidental to that purpose. He also asserts that he has piled upon his land loam that was stripped before the by-law took effect. Both plaintiffs testified, however, that they were contractors engaged in the business of making lawns.

It is evident that the general purpose of the statute and the by-law was to regulate the stripping of top soil so as to prevent the injurious effects brought about by the creation of waste areas which have been the subject of litigation in such cases as Town of Lexington v. Menotomy Trust Co., 304 Mass. 283, 23 N.E.2d 559; Town of North Reading v. Drinkwater, 309 Mass. 200, 34 N.E.2d 631; Town of Burlington v. Dunn, 318 Mass. 216, 61 N.E.2d 243, 168 A.L.R. 1181; Town of Billerica v. Quinn, 320 Mass. 687, 71 N.E.2d 235; Town of Seekonk v. John J. McHale & Sons, Inc., 325 Mass. 271, 90 N.E.2d 325, and Town of Wayland v. Lee, 325 Mass. 637, 644, 91 N.E.2d 835. That it is constitutional to restrict the use of land in this manner was established by Town of Burlington v. Dunn, 318 Mass. 216, 220-223, 61 N.E.2d 243, 168 A.L.R. 1181, certiorari denied sub nomine Dunn v. Town of Burlington, 326 U.S. 739, 66 S.Ct. 51, 90 L.Ed. 441.

The cases just cited, except the North Reading case, were cases in which the regulation was accomplished by means of a zoning by-law. The purpose of the 1949 amendment to the statute was to enable municipalities to regulate the removal of soil, loam, sand, or gravel without setting up any zoning system. This had previously been held in the North Reading case beyond the power delegated to them under the statutes as they formerly existed. We understand that the questions raised are whether the by-law is valid as a reasonable exercise within the enabling act of the power intended to be conferred upon the town, and, if it is, whether the action of the selectmen in denying permits was a valid exercise of the power conferred upon the selectmen by the by-law.

We see no substantial reason to doubt the validity of the by-law. The enabling act was in general terms and provided for 'prohibiting or regulating.' The town decided upon 'regulating' by requiring a permit from the selectmen except where the removal of soil, loam, sand, or gravel was in conjunction with the construction of a building or the continued operation of an existing sand or gravel pit. Instead of attempting to describe in advance all possible conditions under which soil could properly be removed without substantial injury to the public interest the town chose to invest its selectmen with quasi judicial authority to determine the facts and to pass upon the application in each instance under the serious sense of responsibility imposed upon them by their official positions and the delicate character of the duty entrusted to them. We do not think that greater particularity was required in the by-law. It would have been difficult, if not impossible, to specify in what circumstances permits should be granted and in what circumstances denied. Each case must depend upon its particular facts. The manifest objects of the enabling act and of the by-law furnish in themselves a large measure of guidance. In our opinion this case is to be distinguished from cases where an attempt has been made to delegate to some official what practically amounts to the unrestrained power of life or death over the right to engage in some lawful, useful, and generally harmless occupation not otherwise prohibited. Commonwealth v. Maletsky, 203 Mass. 241, 89 N.E. 245, 24 L.R.A.,N.S., 1168; Goldstein v. Conner, 212 Mass. 57, 98 N.E. 701; Kilgour v. Gratto, 224 Mass. 78, 112 N.E. 489. In this case there is involved a use of land which, if not in itself a nuisance, has been shown by experience to be likely to produce conditions bordering upon a nuisance. In recognition of that fact the Legislature passed the enabling act and gave the town authority not merely to regulate the use but to prohibit it altogether. The town stopped short of prohibition, Commonwealth v. Davis, 162 Mass. 510, 512, 39 N.E. 113, 26 L.R.A. 712, and instead adopted a commonly used method of regulation by requiring a permit in terms similar to those employed and held valid in various comparable instances. Commonwealth v. Plaisted, 148 Mass. 375, 19 N.E. 224, 2 L.R.A. 142; Quincy v. Kennard, 151 Mass. 563, 24 N.E. 860; Commonwealth v. Parks, 155 Mass. 531, 30 N.E. 174; Commonwealth v. Ellis, 158 Mass. 555, 33 N.E. 651; Newton v. Joyce, 166 Mass. 83, 44 N.E. 116; Commonwealth v. Hubley, 172 Mass. 58, 51 N.E. 448, 42 L.R.A. 403; Storer v. Downey, 215 Mass. 273, 102 N.E. 321; General Baking Co. v. Board of Street Commissioners of Boston, 242 Mass. 194, 136 N.E. 245; Commonwealth v. Kimball, 299 Mass. 353, 359, 13 N.E.2d 18, 114 A.L.R. 1440; Building Commissioner of Medford v. C. & H. Co., 319 Mass. 273, 275, 280-282, 65 N.E.2d 537. The reference in Town of North Reading v. Drinkwater, 309 Mass. 200, at page 204, 34 N.E.2d 631, to Goldstein v. Conner was made before soil stripping was classified by the Legislature by St. 1949, c. 98, as an activity which towns could prohibit.

A question has arisen whether the words of the by-law 'remove any soil, loam, sand or gravel from any land' are to be construed as referring to the original stripping or digging or to the ultimate conveying away from the premises. Similar words occur in the enabling act. We think the intent was to authorize towns to control the entire process of severing the material...