Glacier Sand & Stone Co. v. Board of Appeals of Westwood

• Decision Date: 26 June 1972
• Citation: 285 N.E.2d 411,362 Mass. 239
• Parties: GLACIER SAND & STONE CO., Inc. v. BOARD OF APPEALS OF WESTWOOD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 411

285 N.E.2d 411

362 Mass. 239

GLACIER SAND & STONE CO., Inc. v. BOARD OF APPEALS OF WESTWOOD.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 4, 1972.

Decided June 26, 1972.

Henry P. McLaren, Boston, for plaintiff.

Arnold W. Hunnewell, Jr., Town Counsel, for defendant.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, and HENNESSEY, JJ.

REARDON, Justice.

The plaintiff appeals from a decree of the Superiro Court sustaining the denial by the board of appeals of Westwood (the board) of a special permit for removal of earth materials. The Superior Court judge made findings and rulings. We refer to the findings.

The plaintiff owns land in Westwood on the town line between Westwood and Norwood. The land is situated in a residential area in the vicinity of large 'well-cared for lots' containing 'medium-priced' dwellings. The locus is covered by a stand of pine trees, and through its center runs a high ridge sloping to the sides and rear of the site. Its high point is about fifteen feet above the street grade and about fifty-five feet above the lowest grade at the sides and rear of the property. The plaintiff has had a subdivision plan of the locus approved by the planning board of the town of Westwood. This plan calls for an alteration of the surface of the locus so that its high point would be 'about level' with the grade of Canton Street, with a slope back to the rear line, the grading at that point being approximately fifty-five feet below that of Canton Street. This alteration would remove the ridge running through the center of the property and would require the removal of more than 110,000 yards of gravel. The plan approved for subdivision of the locus requires this alteration. The plaintiff was formerly in the sand and gravel business and has an industrial development under way in Norwood to the south of the locus. The material from the locus is needed on that development, according to the president of the plaintiff. After the removal of the gravel the plaintiff proposes to transform the locus into a residential home development which would necessitate removal of all of the trees. Upon a view, the judge clearly heard the noise of excavation proceedings at the sand and gravel operation about a mile from the locus. He found that the removal of the 110,000 yards of gravel would be 'obnoxious and detrimental to the residential neighborhood in which the locus is situated.' He made reference to the dust and funes which would be generated by the earth removal process.

The board had made these findings and, in addition, had found that gravel conveyed by heavy trucks would cause injury to the surface of Canton Street, and a traffic problem which would pose a safety threat. The judge found these facts to be so, but in view of Stow v. Marinelli, 352 Mass. 738, 227 N.E.2d 708, accorded these two findings no weight. The judge found in addition that the removal of the gravel could result in the destruction of a natural buffer screening the Canton Street neighborhood from the Norwood industrial site, and that the loss of this buffer would have an adverse effect on Canton Street property values. He specifically did not take these facts into consideration in this decision.

We have here an issue of law presented by the interaction of G.L. c. 40, § 21(17), as amended through St.1967, c. 870, which reads in part as follows: 'Any order or by-law prohibiting such removal hereunder shall not apply to any soil, loam, sand or gravel which is the subject of a permit or license issued under the authority of the town...