M. DeMatteo Const. Co. v. Board of Appeals of Hingham

CourtAppeals Court of Massachusetts
Writing for the CourtGOODMAN
Citation334 N.E.2d 51,3 Mass.App.Ct. 446
PartiesM. DeMATTEO CONSTRUCTION CO. v. BOARD OF APPEALS OF HINGHAM (and two companion cases).
Decision Date03 September 1975

Page 51

334 N.E.2d 51
3 Mass.App.Ct. 446
M. DeMATTEO CONSTRUCTION CO.
v.
BOARD OF APPEALS OF HINGHAM (and two companion cases).
Appeals Court of Massachusetts, Plymouth.
Argued Dec. 9, 1974.
Decided Sept. 3, 1975.

Page 52

[3 Mass.App.Ct. 447] John R. Hally, Boston (Patrick F. Brady, Brighton, with him), for the Bd. of Appeals of Hingham.

Herman Snyder, Boston (David F. Parish, Boston, with him), for plaintiff.

Before [3 Mass.App.Ct. 446] KEVILLE, GOODMAN and ARMSTRONG, JJ.

[3 Mass.App.Ct. 447] GOODMAN, Justice.

These are three appeals; two are by the Board of Appeals of Hingham (zoning board) from final decrees entered in cases brought under G.L. c. 40A, § 21, in which the zoning board was the defendant, and one is by the Building Commissioner of Hingham (building commissioner) from a final decree entered on a bill for declaratory relief (G.L. c. 231A) in which he was the defendant. 1 The plaintiff in all three cases is the owner of a tract of land (the locus) of about 174.5 acres in Hingham subject to a subdivision plan approved by the town planning board under the Subdivision Control Law. G.L. c. 41, §§ 81K--81GG. The plaintiff is engaged in general construction and land development. The cases originate from the plaintiff's attempt to excavate and remove earth material from the locus and particularly from parts of the locus designated as roadways on the subdivision plan.

The relevant history of these cases begins on January 20, 1964, when the plaintiff filed with the planning board a preliminary plan of a proposed subdivision for the locus. G.L. c. 41, § 81S. On August 20, 1964, the plaintiff filed a [3 Mass.App.Ct. 448] definitive subdivision plan which was disapproved on October 5, 1964. The plaintiff thereupon revised its plan to conform with the recommendations of the planning board, and this revised version of the definitive plan was approved, and so endorsed, on April 5, 1965. G.L. c. 41, § 81U. The subdivision plan comprised some 270 lots and called for a number of roads totaling almost four miles; none of them had been laid out or excavated on this undeveloped tract.

Meanwhile the town was taking steps to amend its zoning by-law governing earth removal (see Goodwin v. Board of Selectmen

Page 53

of Hopkinton, 358 Mass. 164, 170, 261 N.E.2d 60 (1970)). Theretofore § V--E of the by-law (hereinafter old V--E), entitled 'Removal of Earth Products,' had prohibited '(t)he removal from any premises of more than three (3) cubic yards of soil, loam, sand, stone or gravel in any one year . . . except when required in connection with the construction of a building or street or other activity authorized by this By-Law . . ..' 2 On March 22, 1965, the town voted to replace this section of the zoning by-law with a new § V--E (hereinafter V--E (1965)) which was approved by the Attorney General on April 13, 1965. V--E (1965) required generally (with exceptions not considered pertinent by the parties) a permit from the zoning board for the removal of earth materials. More explicit standards for the grant of a permit were provided, and the conditions which the zoning board was empowered to impose were elaborated. V--E (1965) was expressly made applicable to the removal of earth materials in a proposed subdivision 'even though in connection with the construction of streets shown on the plan.' See Glacier Sand & Stone Co. Inc. v. Board of Appeals of Westwood, 362 Mass. 239, 241, 285 N.E.2d 411 (1972) (a zoning by-law using the same language).

[3 Mass.App.Ct. 449] Upon approval of the definitive plan by the planning board, the plaintiff removed the trees and topsoil from the areas laid out as ways on the subdivision plan, stockpiled the topsoil at several locations on the tract, and also piled up brush and tree stumps on the sides of the ways. The plaintiff had begun excavating to bring the roads to grade when the building commissioner, 'several weeks' (possibly five to seven weeks) after the plaintiff had begun to work on the tract, ordered that it stop operations because it had not obtained a special permit from the board for the removal of earth materials in accordance with V--E (1965).

The plaintiff on November 16, 1965, made application to the building commissioner for a permit 'for removal of (approximately 857,000 cubic yards of) earth materials from (the roads shown on the subdivision plan for the locus) . . . as required to construct said roads with slopes to conform with the grades approved by the Hingham Planning Board . . ..' On that same date, the plaintiff's application was rejected by the building commissioner on the ground that approval of the zoning board was required, and the plaintiff filed an application with the zoning board. Both applications stated that the plaintiff was proceeding under V--E (1965) but 'without waiving and expressly reserving all rights . . . with respect to the question of the validity' of V--E (1965).

On February 14, 1966, the zoning board, after hearing, filed its decision denying the application. The decision was based on a number of grounds. If found that 'the proposed operation . . . would be especially harmful and detrimental to the neighborhood' and that 'the earth removal operation proposed here would constitute, in effect, a commercial gravel pit under the guise of a residential development.' Also the zoning board pointed out that the plaintiff had requested that the application be considered 'as a whole in the form submitted' 3 and thus precluded a[3 Mass.App.Ct. 450] 'section-by-section

Page 54

development.' The zoning board found that this position, if sanctioned, would permit 'the excavation of the ways and adjacent slopes without relation to the grading and development of the lots (which) would expose the neighborhood and the Town to serious detrimental consequences such as the Planning Board describes.' 4

The plaintiff appealed to the Superior Court under G.L. c. 40A, § 21, attacking the zoning board's decision as 'usurp(ing) the authority of the Planning Board . . . in derogation of . . . the Subdivision Control Law' and generally as exceeding the zoning board's authority. This case (E--1011) was heard on June 7 and 8, 1966; the Superior Court in its 'Findings, Rulings and Order' referred to the limitation which the plaintiff had placed on the applications (see fn. 3) and found and ruled that the denial of a permit with respect to the proposal as presented by the plaintiff for the excavation of the ways was 'not arbitrary, unreasonable or capricious in the circumstances, and (wa)s not beyond the power or authority of the Board.'

The court held, however, that '(i)t appears likely that with the imposition of reasonable conditions the proposed operation could be carried out without material adverse effect on the health or safety of persons living in the neighborhood, on the use or amenities of adjacent land, or the [3 Mass.App.Ct. 451] best interests of the Town, and, by the same means, guard against the project becoming merely a commercial gravel removal operation from its inception or thereafter.' 5

Accordingly, it entered a 'final decree' upholding the zoning board, but providing for recommittal of the application to the zoning board if the plaintiff should move 'for further consideration without the limitation . . . that the application must (not) be considered . . . with respect to a portion of the tract separately, nor with respect to the grading of any of the lots other than slopes to ways . . ..' The decree also ordered that the court 'retain jurisdiction of this cause pending review, if such review is requested by the appellant, of further (board) action.' On the same day, December 22, 1966, in accordance with that decree, an interlocutory decree was entered without opposition recommitting the application to the zoning board.

The plaintiff thereupon engaged a firm of landscape architects and site planners, who prepared a program for the development, under the approved subdivision plan, of the entire locus in four sections with (in general) roads built, utilities installed, and lots finished and graded in one section before development of the next section. The plaintiff presented this program to the zoning board and again requested a special permit which the zoning board, after hearing, again denied.

Page 55

The zoning board found 'a design to maximize earth removal under the guise of subdivision,' in effect 'a prohibited gravel removal operation in a residential district,' and pointed out other specific factors which would make the issuance of a permit on the basis of the plaintiff's presentation 'harmful and detrimental to the neighborhood.'

Thereupon the plaintiff on December 11, 1969, filed a 'request for review' in E--1011 pursuant to the retention of [3 Mass.App.Ct. 452] jurisdiction by the Superior Court, and on the same date (apparently to forestall any procedural questions) it filed a separate bill in equity under G.L. c. 40A, § 21, for the same purpose (E--2901). This bill described the course of the proceedings under E--1011 and prayed that the decision of the board 'be annulled' and that the court 'make such decree as justice and equity may require.' Subsequently, on August 17, 1970, the plaintiff filed a bill for declaratory relief against the building commissioner (E--3204). The bill set out the circumstances under which the building commissioner had originally ordered the plaintiff to stop the excavation of the streets designated on the approved subdivision plan and the subsequent proceedings. It alleged that the plaintiff was 'entitled to remove the earth material in connection with the building of the roadways shown on the plan approved by the Planning Board of the Town of Hingham' and prayed that his right to do so be established. As the basis for its entitlement, it referred to G.L. c. 40, § 21(17), the general grant of authority to regulate earth removal.

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31 practice notes
  • Gamache v. Town of Acushnet
    • United States
    • Appeals Court of Massachusetts
    • July 22, 1982
    ...360 Mass. 513, 516-517 n.4, 275 N.E.2d 525 (1971); M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, 3 Mass.App. 446, 455-456 n.10, 334 N.E.2d 51 (1975); and Healy, Massachusetts Zoning Practice Under the Amended Zoning Enabling Act, 64 Mass.L.Rev. 157, 163 (1979). See also Neuhaus v.......
  • Tisei v. Building Inspector of Marlborough
    • United States
    • Appeals Court of Massachusetts
    • May 24, 1977
    ...Mass.R.Civ.P. 1A, subpar. 2, citing rule 15; M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, --- Mass.App. ---, ---, n. 10 c, 334 N.E.2d 51 (1975); see also 3 Moore's Federal Practice par. 15.16(4) (1974)) to file either a motion to amend his pleadings to conform them to the evidenc......
  • Dowd v. Board of Appeals of Dover
    • United States
    • Appeals Court of Massachusetts
    • February 24, 1977
    ...--- Mass.App. ---, ---, b 319 N.E.2d 916 (1974). See M. DeMatteo Constr. co. v. Board of Appeals of Hingham, --- Mass. App. ---, ---, c 334 N.E.2d 51 (1975). The judge found indications in the board's decision Page 644 that its reasons for denying the special permit might have been based on......
  • Others v. Planning Bd. Of Truro, 09-P-1156.
    • United States
    • Appeals Court of Massachusetts
    • June 29, 2010
    ...because it was not included in the covenants that actually were recorded.13 See M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, 3 Mass.App.Ct. 446, 459, 334 N.E.2d 51 (1975) (town board may not rely on condition of approval where that condition “was neither endorsed on the plan nor ......
  • Request a trial to view additional results
31 cases
  • Gamache v. Town of Acushnet
    • United States
    • Appeals Court of Massachusetts
    • July 22, 1982
    ...360 Mass. 513, 516-517 n.4, 275 N.E.2d 525 (1971); M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, 3 Mass.App. 446, 455-456 n.10, 334 N.E.2d 51 (1975); and Healy, Massachusetts Zoning Practice Under the Amended Zoning Enabling Act, 64 Mass.L.Rev. 157, 163 (1979). See also Neuhaus v.......
  • Tisei v. Building Inspector of Marlborough
    • United States
    • Appeals Court of Massachusetts
    • May 24, 1977
    ...Mass.R.Civ.P. 1A, subpar. 2, citing rule 15; M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, --- Mass.App. ---, ---, n. 10 c, 334 N.E.2d 51 (1975); see also 3 Moore's Federal Practice par. 15.16(4) (1974)) to file either a motion to amend his pleadings to conform them to the evidenc......
  • Dowd v. Board of Appeals of Dover
    • United States
    • Appeals Court of Massachusetts
    • February 24, 1977
    ...--- Mass.App. ---, ---, b 319 N.E.2d 916 (1974). See M. DeMatteo Constr. co. v. Board of Appeals of Hingham, --- Mass. App. ---, ---, c 334 N.E.2d 51 (1975). The judge found indications in the board's decision Page 644 that its reasons for denying the special permit might have been based on......
  • Others v. Planning Bd. Of Truro, 09-P-1156.
    • United States
    • Appeals Court of Massachusetts
    • June 29, 2010
    ...because it was not included in the covenants that actually were recorded.13 See M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, 3 Mass.App.Ct. 446, 459, 334 N.E.2d 51 (1975) (town board may not rely on condition of approval where that condition “was neither endorsed on the plan nor ......
  • Request a trial to view additional results

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