Byrne v. Town of Middleborough
| Court | United States State Supreme Judicial Court of Massachusetts |
| Writing for the Court | Before TAURO; BRAUCHER |
| Citation | 304 N.E.2d 194,364 Mass. 331 |
| Decision Date | 30 November 1973 |
| Parties | William L. BYRNE et al. 1 v. TOWN OF MIDDLEBOROUGH. |
Page 194
v.
TOWN OF MIDDLEBOROUGH.
Decided Nov. 30, 1973.
Page 195
Marc E. Antine, Taunton, for plaintiffs
Willis A. Downs, Brockton, for defendant.
Before TAURO, C.J., and BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.
BRAUCHER, Justice.
On May 28, 1970, the defendant town of Middleborough (the town) adopted an 'Earth Removal By-Law' (the by-law). The plaintiffs were in the business of operating gravel pits in the town before the by-law was enacted. They argue that their operations are nonconforming [364 Mass. 332] uses under G.L. c. 40A, § 5, not subject to the by-law, and that a contrary interpretation would violate the due process clause of the Fourteenth Amendment. We hold that the by-law, adopted pursuant to G.L. c. 40, § 21(17), as amended through St.1967, c. 870, is not subject to G.L. c. 40A, § 5, and that it has not been shown to be unconstitutional.
The plaintiffs brought a bill for declaratory and injunctive relief in the Superior Court, and the parties thereafter presented a case stated. The judge reported the case to the Appeals Court without decision, and the case was transferred to this court under G.L. c. 211A, § 10(A). We summarize the case stated.
Before the enactment of the by-law, the plaintiffs were engaged in the business of operating gravel pits on six tracts of land in the town, and had cleared and prepared a substantial portion of each tract for the removal of gravel and other material. Each tract had a road leading in, a pit where earth had been removed, and a face. One tract had permanently installed machinery for the screening and separation of material, another had a portable screening plant, and several had stock piles of various kinds of separated material. Before the enactment of the by-law and daily during the work week for the remainder of 1970, the plaintiffs worked on the six tracts.
The by-law was adopted pursuant to G.L. c. 40, § 21(17), at a special town meeting on May 28, 1970, was approved by the Attorney General on August 20, 1970, and was published in a local newspaper in three successive weeks in August and September, 1970. At the plaintiffs' request, 'the Selectmen postponed the effect of the by-law until March 1, 1971.' The plaintiffs continued to operate their gravel pits on the six tracts until February 27, 1971, when they were notified that they would have to obtain permits under the by-law. They ceased operations from February 27, 1971, until March 16, 1971. Since March 16, 1971, they have continued to remove material from the six tracts in the regular course of their business.
The by-law provides that the board of selectmen of the town shall adopt regulations regarding the method of application[364 Mass. 333] for permits. 'Conditions' for the removal of soil, loam, sand and gravel had been prepared under a previous by-law, and the minutes of a selectmen's meeting of December 28, 1970, show a 'consensus of opinion to continue the old conditions as regulations.' In January, February and March, 1971, the plaintiffs asked for the regulations and received them. During 1970 and 1971 the town had a zoning by-law, and a...
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Lovequist v. Conservation Commission of Town of Dennis
...where the town has a zoning by-law. Beard v. Salisbury, --- Mass. ----, ---- n.7 D, 392 N.E.2d 832 (1979); Byrne v. Middleborough, 364 Mass. 331, 334, 304 N.E.2d 194 (1973). It is, of course, clear that nonzoning earth removal enactments need not comply with the prescriptions stated in G.L.......
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George F. Davey, Inc. v. Town of Norton
...have the status of 'conditions' such as those considered in Byrne v. Middleborough, Mass. (1973) (Mass.Adv.Sh. (1973) 1485, 1486, 1488) 304 N.E.2d 194 or were intended merely as practical advice from the selectmen as to the circumstances and conditions under which they would expect to enter......
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M. DeMatteo Const. Co. v. Board of Appeals of Hingham
...Selectmen of Hopkinton, 358 Mass. 164, 261 N.E.2d 60 (1970); Byrne v. Middleborough, --- Mass. ---, --- (Mass.Adv.Sh. (1973) 1485, 1487), 304 N.E.2d 194 7 That statute amended c. 40A, § 7A, to read: 'When a preliminary plan referred to in section eighty-one S of chapter forty-one has been s......
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Ninety Six, LLC v. Wareham Fire Dist., No. 16–P–1111
...94 N.E.3d 406 nonzoning land use controls." Healy, Massachusetts Zoning Manual § 2.1, at 2–2 to 2–3. See Byrne v. Middleborough, 364 Mass. 331, 334, 304 N.E.2d 194 (1973) ; Lovequist, 379 Mass. at 12–14, 393 N.E.2d 858. The implication of the plaintiff's position would be that municipalitie......
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Lovequist v. Conservation Commission of Town of Dennis
...where the town has a zoning by-law. Beard v. Salisbury, --- Mass. ----, ---- n.7 D, 392 N.E.2d 832 (1979); Byrne v. Middleborough, 364 Mass. 331, 334, 304 N.E.2d 194 (1973). It is, of course, clear that nonzoning earth removal enactments need not comply with the prescriptions stated in G.L.......
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George F. Davey, Inc. v. Town of Norton
...have the status of 'conditions' such as those considered in Byrne v. Middleborough, Mass. (1973) (Mass.Adv.Sh. (1973) 1485, 1486, 1488) 304 N.E.2d 194 or were intended merely as practical advice from the selectmen as to the circumstances and conditions under which they would expect to enter......
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M. DeMatteo Const. Co. v. Board of Appeals of Hingham
...Selectmen of Hopkinton, 358 Mass. 164, 261 N.E.2d 60 (1970); Byrne v. Middleborough, --- Mass. ---, --- (Mass.Adv.Sh. (1973) 1485, 1487), 304 N.E.2d 194 7 That statute amended c. 40A, § 7A, to read: 'When a preliminary plan referred to in section eighty-one S of chapter forty-one has been s......
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Ninety Six, LLC v. Wareham Fire Dist., No. 16–P–1111
...94 N.E.3d 406 nonzoning land use controls." Healy, Massachusetts Zoning Manual § 2.1, at 2–2 to 2–3. See Byrne v. Middleborough, 364 Mass. 331, 334, 304 N.E.2d 194 (1973) ; Lovequist, 379 Mass. at 12–14, 393 N.E.2d 858. The implication of the plaintiff's position would be that municipalitie......