McIntyre v. Board of Selectmen of Ashby, 90-P-349

• Decision Date: 06 January 1992
• Docket Number: No. 90-P-349,90-P-349
• Parties: David L. McINTYRE & others 1 v. BOARD OF SELECTMEN OF ASHBY & another; 2 Paul Murray & others, 3 interveners.
• Court: Appeals Court of Massachusetts

Page 1137

584 N.E.2d 1137

31 Mass.App.Ct. 735

David L. McINTYRE & others ¹ v. BOARD OF SELECTMEN OF ASHBY & another; ² Paul Murray & others, ³ interveners.

No. 90-P-349.

Appeals Court of Massachusetts,

Middlesex.

Argued April 12, 1991.

Decided Jan. 6, 1992.

Louis N. Levine, Acton (F. Alex Parra with him), for plaintiffs.

Arthur P. Kreiger, Cambridge, for Paul Murray & others.

C. Deborah Phillips, Town Counsel, Fitchburg, for Board of Selectmen of Ashby & another.

Before BROWN, PERRETTA and PORADA, JJ.

PERRETTA, Justice.

To remove sand and gravel from land in a residential-agricultural area of Ashby, an excavator must have two permits: a special permit from the zoning board of appeals (board) granted under the zoning by-law as well as a permit from the defendant board of selectmen (selectmen) issued pursuant to the town's general earth removal by-law. This general by-law was enacted by Ashby under the authority of G.L. c. 40, § 21(17). Although the plaintiffs received a special permit from the board, the selectmen denied their application for the permit under the general by-law. They found that the noise and dust which would be created by the proposed activity would constitute a nuisance and be detrimental to the adjacent property and neighborhood. The plaintiffs then brought this action in the Superior Court seeking a declaration that, where the board had granted them a special permit, the selectmen were without authority to deny their application. In the alternative, the plaintiffs sought review of the selectmen's decision, under G.L. c. 249, § 4, and an order compelling them to issue the required permit. On cross-motions for summary judgment, the judge concluded that the selectmen could consider the plaintiffs' application notwithstanding the permit from the board and that the selectmen's decision was not arbitrary. We affirm.

1. The by-laws. Section 7.2 of Ashby's zoning by-law authorizes the board to grant special permits for certain enumerated uses of land situated in a residential-agricultural zone "after a public hearing and subject to appropriate regulations, if determined to be neither offensive nor detrimental to the residential/agricultural area." Earth removal is one of these enumerated uses. Section 7.202 allows the removal "for commercial purposes provided it is not less than 250 feet from a public way and a plan for post-mining site reclamation is approved by the Town Conservation Commission." In issuing the plaintiffs a special permit on October 5, 1987, the board expressly advised that the "applicant must request and receive a permit from the Board of Selectmen for excavation of sand and gravel pursuant to the town by-law...." ⁴

That general by-law, to which the board referred the plaintiffs, reads, as here pertinent: "No permit shall be issued hereunder unless an application therefor is filed with the ... [s]electmen and it is determined by them, after public hearing, that the operations under the requested permit will not be contrary to the best interests of the Town. For this purpose, an operation ... shall be considered contrary to the best interests of the Town which (1) will be injurious or dangerous to the public health or safety, constitute a nuisance ... or (2) will produce noise, dust, or other effects, observable at the lot lines to an objectionable degree, or will be detrimental to the normal use of the adjacent property."

2. The statute. By G.L. c. 40, § 21, the Legislature authorized local governments to enact ordinances, by-laws, and regulations pertaining to certain matters thereafter described in enumerated paragraphs (1) through (24), as of 1981. More specifically, and as here pertinent, § 21 reads: "Towns may, for the purposes hereinafter named, make such ordinances and by-laws ... as they may judge most conducive to their welfare, which shall be binding upon all inhabitants thereof and all persons within their limits" (emphasis supplied).

Legislative enactments by local governments on the matter of earth removal are authorized by paragraph (17). As amended through St.1973, c. 317, that paragraph provides that towns may make ordinances and by-laws:

"For prohibiting or regulating the removal of soil, loam, sand or gravel from land not in public use in the whole or in specified districts of the town.... The superior court shall have jurisdiction in equity to compel compliance with any ordinance or by-law made hereunder. [There shall be a] penalty for violation of any ordinance or by-law made hereunder.... 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 or by the appropriate licensing board of such town or by the board of appeal, or which is to be removed in compliance with the requirements of a subdivision plan approved by the town planning board" (emphasis supplied).

It is the plaintiffs' position that, although paragraph (17) enables a town to enact an earth removal by-law, there is an express exemption in the statute which precludes simultaneous application of the general and zoning by-laws to the same proposal. They seize upon the word "order" appearing in the last sentence of paragraph (17) and construe that provision to mean the following. Because a special permit for their proposal was issued by the board under the zoning by-law and because the selectmen's decision on the application constitutes an "order or by-law prohibiting" their proposed earth removal, that order "shall not apply." Consequently, where an application has been approved by the board under the zoning by-law, and a permit has been "issued," the only action open to the selectmen which could be given effect would be to approve the application under the general by-law. Since it would be pointless to require the selectmen to rubberstamp the application, paragraph (17) must be read as expressly exempting such simultaneous application of the by-laws.

3. The proper construction of paragraph (17). Applying basic principles of statutory construction, we are driven to the conclusion that the word "order," as appearing in the final sentence of paragraph (17), was inadvertently substituted for the intended word "ordinance." As stated in a comparable situation: "It is true that we are not faced with the typical case of ambiguity in, or inconsistency between, sections of an act. The choice open to us here is between adopting the literal meaning of the words used, which renders the section unintelligible, and substituting or adding a word which was clearly intended and which gives the section the meaning plainly intended.... We might resist substitution if we were not faced with such a clear case of mistake and if other legislative enactments on the same subject did not make the intended phrase so manifestly apparent." Chelmsford Trailer Park, Inc. v. Chelmsford, 393 Mass. 186, 197, 469 N.E.2d 1259 (1984), citing Sands, Sutherland Statutory Construction § 47.36 (4th ed.1973). See also Willard v. Board of Appeals of Orleans, 25 Mass.App.Ct. 15, 20-21, 514 N.E.2d 369 (1987).

Our conclusion that the manifestly apparent phrase intended by the Legislature is "any ordinance or by-law" is based upon the purpose of c. 40, § 21, in general, and paragraph (17) specifically. Moreover, our construction aligns paragraph (17) with the other paragraphs of § 21. As can be seen from § 21 and its twenty-four paragraphs, its purpose is to enable local governments to legislate on specific matters of local concern by ordinances, by-laws, regulations, or enactments which have binding effect on all inhabitants. The phrase "any ordinance or by-law" is repeatedly used throughout § 21, including paragraph (17).

The specific purpose for which paragraph (17) was enacted was to allow a municipality "to have two separate ordinances or by-laws to avoid the involved and strict procedural requirements for adopting or amending zoning ordinances and by-laws.... While G.L. c. 40, § 21(17), is available to municipalities which have no zoning ordinances or by-laws, it is equally available to other municipalities." Goodwin v. Selectmen of Hopkinton, 358 Mass. 164, 170, 261 N.E.2d 60 (1970) (citations omitted). As explained in Toda v. Board of Appeals of Manchester, 18 Mass.App.Ct. 317, 320, 465 N.E.2d 277 (1984): "These two modes of regulation need not be mutually exclusive. Thus, a zoning by-law may confine earth removal to specified zoning districts, while a separate earth removal by-law may govern how earth removal is carried out within those districts."

We see no legislative intent in § 21(17) to preclude the application of a general by-law to an earth removal proposal approved under the zoning by-law. " 'A statute should not be read in a manner that defeats its intended utility.' Simon v. Solomon, 385 Mass. 91, 100 (1982). Instead, when '[t]he draftmanship is faulty, ... the duty devolves upon us to give ... [the statute] a reasonable construction.' Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 190 (1976), quoting Massachusetts Turnpike Auth. v. Commonwealth, 347 Mass. 524, 528 (1964)." Chelmsford Trailer Park, Inc. v. Chelmsford, 393 Mass. at 196, 469 N.E.2d 1259. As corrected, the last sentence of paragraph (17) reads: "Any ordinance 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 or by the appropriate licensing board of such town or by the board of appeal, or which is to be removed in compliance with the requirements of a subdivision plan approved by the town planning board."

Paragraph (17) was added to § 21 by St.1949, c. 98, and amended to include the now final sentence...