Kelleher v. Board of Selectmen of Pembroke

• Decision Date: 20 March 1973
• Citation: 294 N.E.2d 512,1 Mass.App.Ct. 174
• Parties: Gerald J. KELLEHER et al. 1 v. BOARD OF SELECTMEN OF PEMBROKE.
• Court: Appeals Court of Massachusetts

Page 512

294 N.E.2d 512

1 Mass.App.Ct. 174

Gerald J. KELLEHER et al. ¹ v. BOARD OF SELECTMEN OF PEMBROKE.

Appeals Court of Massachusetts, Plymouth.

Argued Feb. 15, 1973.

Decided March 20, 1973.

Melvin S. Lousion, Taunton (Robert G. Clark, Jr., Brockton, with him), for Gerald J. Kelleher.

Henry M. Paro, Town Counsel, Kingston, for the Board of Selectmen of Pembroke.

Before HALE, C.J., and GOODMAN and GRANT, JJ.

GRANT, Justice.

The plaintiff has appealed from a final decree of the Sperior Court dismissing his amended bill of complaint brought against the board of selectmen (board) of the town of Pembroke (town) to secure an injunction against the town's ² further interfering with the plaintiff's conduct of an earth removal business in the town in the manner in which that business was conducted immediately prior to the effective date of an earth removal by-law (G.L. c. 40, § 21(17), as most recently amended by St.1967, c. 870 ³) adopted by the town in 1971. The bill alleges that the '(s)electment in their actions pertaining to . . . the plaintiff('s property) has (sic) acted arbitrarily, capriciously, and injudiciously and have further acted in reckless disregard of the property rights of the plaintiff's and that 'said (by-law) is unconstitutional in its purpose and scope as applied to your petitioner's operation.' The trial judge filed findings (later adopted as a statutory report), rulings and an order for decree. The evidence is reported. The facts ⁴ and the provisions of the challenged by-law may be summarized as follows.

In 1970 one Walsh, a real estate broker doing business in Pembroke, acquired a tract of vacant land comprising some one hundred fifty acres which lay partly in Marshfield but mostly in Pembroke, which was bounded northerly for a total distance of approximately 1,500 feet in Pembroke by a public way known as Oak Street and easterly in Marshfield by a portion of the Southeast Expressway (Route 3) and which was bisected from north to south in Pembroke by a dirt road but public way known as Winter Street, which had formerly run from Pembroke to Marshfield but had been dead ended by the construction of the expressway in 1962 or 1963. No active earth removal operation was in progress on any part of the tract at the time of Walsh's purchase, although undisclosed quantities of gravel had been removed in the past from a twenty or twenty-five acre portion of the tract in Pembroke, principally in connection with the construction of the expressway. A strip of the Pembroke portion of the tract lying along its westerly boundary and having a frontage of approximately five hundred sixty feet on Oak Street was zoned for residential uses; the balance of the Pembroke portion was zoned for industrial uses.

Walsh proceeded to have an engineer prepare a plan for the industrial development of the Pembroke portion zoned for that purpose which showed the boundaries of the entire tract, the boundaries of the zoning districts in Pembroke, ⁵ proposed access roads to be constructed in Pembroke, an area of existing tree screening around the perimeter of the tract (except the portion bounded by the expressway), the location of a brook known as Pudding Brook running through the southerly portion of the tract, certain grades and contours existing as of March 11, 1971, and the considerably lower grades and contours at and in accordance with which Walsh proposed to site buildings in the industrially zoned portion of the property in Pembroke. This plan, which we shall refer to as the March plan, showed the locations of Oak Street and the expressway but not the location, or the existence, of Winter Street. Walsh showed the March plan to the selectmen when he met with them in May of 1971 to discuss the activities then being conducted on the property.

The plaintiff purchased the entire tract from Walsh in May of 1971. ⁶ As early as April 6, 1971, however, the plaintiff commenced the extensive earth removal operations which have given rise to the present dispute. He cleared the trees from approximately ninety acres of the tract and started the continuous removal of gravel from the Pembroke portion of the property, supposedly in preparation of the property for its development in accordance with the March plan. Between April 6 and October 14, 1971, the plaintiff removed from 350,000 to 375,000 cubic yards of gravel, which represented approximately twenty-five percent of the removable material and fifty percent of what the plaintiff ultimately intended to remove. The total area from which gravel had been removed at the time of the plaintiff's purchase was expanded by approximately twenty acres, and substantial changes were effected in the grades and contours shown as then existing on the March plan. Pudding Brook was damaged, or at least threatened, to the point that the Department of Natural Resources intervened. Aerial and other photographs taken at about the time of the cessation of work suggest the practical obliteration of Winter Street and portray a wasteland in the making, with noticeable areas of standing water. None of what was done was forbidden by the zoning of by any other by-law then in force in the town.

The actual removal of gravel was accomplished by means of heavy covered trucks, mostly tractor trailer units, which departed the property by a newly constructed access road, turned easterly on Oak Street through a district zoned for industrial purposes, proceeded thence by Oak Street and various other public ways approximately one quarter of a mile to the expressway in Marshfield, and thence to their destinations at construction projects in Boston. The removal operation continued on a more or less daily basis commencing between 4:30 to 5:30 A.M. and ending at 4:30 to 5:00 P.M. During the period from April to October, 1971, there were a total of some 28,000 truck movements into and out of the property. A simple calculation based on the nember of trucks employed indicates that during working hours a truck either departed from or returned to the property at an average rate of one a minute. People living in homes located on Oak Street and on other public ways lying some four or five hundred feet to the westerly of the access road or of the actual excavation had been unreasonably disturbed by the noise generated by the operation of such trucks and of the equipment used to load them, particularly in the early hours of the morning.

By virtue of action taken at a special town meeting held in September the town adopted a comprehensive earth removal by-law which took effect on October 14, 1971. ⁷ We quote or summarize the provisions of the by-law which are or may be material to this controversy. 'All removal of soil, loam, sand, gravel or rock from land . . . is hereby prohibited unless done in strict compliance with a permit granted hereunder by the (b)oard of (s)electment. Removal . . . shall mean stripping, digging or excavating the foregoing earth material from one lot and removing or carrying it away from said lot' (art. 12B A). All applications for permits are to be accompanied by exhibits, plans and other documentation which will portray or disclose the following items of information, among others: the proposed site of excavation; all property lines, vegetative cover, water courses and wet areas on the land involved, as well as existing topographic lines at five foot grade intervals carried one hundred feet beyond the limits of the proposed excavation; topographic lines at the same intervals after the proposed excavation is completed; estimated quantities of each substance to be removed, of the loam (and the depth thereof) presently located on the property, and of the amount of loam necessary to provide a four inch cover upon the termination of the removal work; explanation and assurances as to the availability of loam for that purpose; and an analysis and estimate of the amounts and types of grass, seed and plantings required to repair the site, and of the cost of performing such work (art. 12B C). If an application relates to the continuation of an existing removal operation, the selectmen may require a plan which will show all areas where past removal operations have been conducted. All permits issued by the board shall state all the conditions to be imposed, which may include, among others, conditions as to. ⁸ finished level and sloping, the placement and seeding of loam and other plants, limits and duration of the removal operation, methods of removal and days and hours of operation, routes of transportation of material, control of temporary and permanent drainage, nonremoval of vegetation as screening, and (in the case of an application for continuance of an existing removal operation) corrective steps to be taken to restore areas of past removal operations (art. 12B D 15). No permit may be granted except after notice and public hearing, or for more than one year's duration (art. 12B E).

'No permit . . . shall be issued if such removal will: 1. Endanger the general public health, safety or convenience or constitute a nuisance. 2. Result in detriment to or depreciation of neighboring properties or interfere with owners or occupants of neighboring properties in the normal use and enjoyment of their properties by reason of noise, dust, vibrations, traffic or drainage conditions. 3. Extend within three hundred (300) feet of a public way, . . . nor if there is insufficient vegetative barrier to remain on the property after excavation as proposed to prevent view of the area from a way. This provision may be waived by the . . . (board) if said removal operation will result in said site being left at approximate level or grade of adjacent way' (art. 12B E). The board is given the 'right to exempt . . . from any or all of the requirements of this by-law' operations consisting of less than five hundred cubic yards, operations in assistance of the cultivation of cranberry bogs, and '(e)xisting...