Goodwin v. Board of Selectmen of Hopkinton

• Decision Date: 13 July 1970
• Citation: Goodwin v. Board of Selectmen of Hopkinton, 261 N.E.2d 60, 358 Mass. 164 (Mass. 1970)
• Court: Supreme Judicial Court of Massachusetts
• Parties: Frank P. GOODWIN, Jr., et al. v. BOARD OF SELECTMEN OF HOPKINTON et al.

Page 60

261 N.E.2d 60

358 Mass. 164

Frank P. GOODWIN, Jr., et al. v. BOARD OF SELECTMEN OF HOPKINTON et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 5, 1970.

Decided July 13, 1970.

J. Fleet Cowden, Sudbury, for petitioners.

Eugene L. Tougas, Waltham, for Pyne Sand & Stone Co., Inc.

Robert T. Nealon, Town Counsel, Framingham, for the Board of Selectmen of Hopkinton, joined in a brief.

Before WILKINS, C.J., and CUTTER, KIRK, SPIEGEL and QUIRICO, JJ.

QUIRICO, Justice.

This is a petition for a writ of mandamus by eighteen persons (petitioners) who are residents of the town of Hopkinton (town) against the board of selectmen (selectmen) of the town, and Pyne Sand & Stone Co., Inc. (Pyne). The petitioners seek a writ ordering the selectmen to revoke an earth removal permit which they issued to Pyne. The case was heard on the basis of the testimony and exhibits at an earlier trial between some of the same parties on a similar permit which had expired, several additional exhibits, and two stipulations incorporating the evidence from the earlier trial and relating to some limited facts. On the basis thereof the judge made and filed a decision entitled 'Findings, Rulings and Order' and entered an order for judgment of dismissal of the petition. The case is before us on the appeal of the petitioners. C. 213, § 1D, as amended by St.1957, c. 155.

Prior to September 28, 1959, the town had adopted an earth removal by-law under G.L. c. 40, § 21 (17), and a zoning by-law under G.L. c. 40A (or its predecessor statutes, c. 40, §§ 25--30B). At a special town meeting held on that date, the town, by separate votes, first adopted a new zoning by-law and then adopted a new earth removal by-law. ¹ The Attorney General approved the earth removal by-law on December 31, 1959, and the zoning by-law on January 8, 1960. G.L. c. 40, § 32. ²

The zoning by-law lists for each of the several types of zoning districts the uses permitted as a matter of right and those uses allowed under special permits granted by the board of appeals. For each type of district the by-law states that, 'Any uses not so permitted are excluded, unless otherwise permitted by law or by the terms hereof.' Earth removal is not included in the by-law as a use permitted as a matter of right or allowed under special permit in any of the districts. The by-law's 'General Provisions,' appearing after the provisions stating the specific uses permitted in each district, contain the following language: '23. Earth Removal. Earth removal shall be permitted only in accordance with the Earth-Removal By-Law of the Town of Hopkinton regardless of zoning district.' That is the only reference to earth removal in the zoning by-law except for defining the words.

We summarize those features of the earth removal by-law which are pertinent to this case. With some exceptions, it prohibits the removal of earth without first obtaining a permit therefor from the selectmen. Applications for permits must be accompanied by plans showing the grades in the area both prior to and after the removal of material. At the conclusion of the earth removal operation all large stones and boulders must be removed, and the area must be covered with not less than eight inches of top soil and seeded. A bond must be posted as security for compliance with the by-law and the conditions of the permit. No permit may be issued until after a public hearing with a prescribed notice to abutters and the planning board. A permit may not be granted for a period of more than two years. The by-law defines the word 'earth' as meaning 'all forms of soil including, without limitation, loam, sand, gravel, clay, peat, hard-pan or rock.' It defines the word 'removal' as meaning, 'stripping, digging, excavating, or blasting earth from one lot and removing or carrying it away from said lot.' It contains the following specific references to zoning: 'Section 2. Scope. This by-law shall apply to all earth removal activities in the Town of Hopkinton, except those undertaken on public land and except as otherwise limited herein. It shall apply to all areas regardless of zoning district. Nothing in this by-law, however, shall be deemed to amend, repeal, or supersede the Zoning By-Law as now in force or as later amended. Nothing herein shall derogate from the intent and purpose of said Zoning By-Law. In cases of dual application, the provisions of this By-Law and the Zoning By-Law must both be met and satisfied.'

On October 28, 1965, Pyne purchased a parcel of land consisting of about sixty-two acres located in Hopkinton and has continued to own it at all times material to this case. The entire parcel was situated in a Residence A district under the town's zoning by-law and map.

In January, 1969, Pyne applied to the selectmen for a permit to remove sand and gravel from two acres of the total sixty-two acres which it owned. It filed the required plans showing the grades then existing on those two acres and as they would be at the conclusion of the removal operation. After due notice and a public hearing as required by the earth removal by-law the selectmen on January 29, 1969 granted Pyne the permit which it sought, and they incorporated therein the plans filed by Pyne, the provisions of the by-law and certain special conditions. The plans showed that the existing elevations of the two-acre tract ranged from a low of 275 feet to a high of 305 feet, and that the elevation after conclusion of the removal operation would be about 277 or 278 feet except for a very small area which would remain at the original elevation of 275 feet. Essentially the operation would remove a part of a ridge which extended up to a maximum of about twenty-eight feet above the ultimate grade after removal. If the provisions of the earth removal by-law and the terms and conditions of the earth removal permit are complied with, at the end of the removal operation the two-acre tract will be practically flat and level, covered with at least eight inches of top soil and seeded, and with proper surface drainage. Pyne has given the town a surety company bond for $6,968 to secure such compliance.

Pyne has removed, and continues to remove gravel from the two-acre tract covered by the permit. The permit does not allow any processing operations to be conducted on that tract. All materials removed are taken by truck over several public ways to Pyne's processing plant located on other premises about three and six-tenths miles away from the two-acre tract. The petitioners allege in part that the operation 'will impose an undue burden upon the streets and roads so used' and that it 'will create undue traffic hazards.' In Town of Stow v. Marinelli, 352 Mass. 738, 742, 227 N.E.2d 708, 712, we held that G.L. c. 40, § 21(17), the enabling statute for earth removal by-laws, 'is not so broad as on other premises about three and six-tenths manner there attempted. Pyne's permit cannot be revoked simply because its otherwise lawful use of public ways has increased the traffic thereon.

The sole legal issue before us is whether Pyne's...