Town of Stow v. Marinelli

• Decision Date: 14 June 1967
• Citation: 352 Mass. 738,227 N.E.2d 708
• Parties: TOWN OF STOW v. Louis W. MARINELLI et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 708

227 N.E.2d 708

352 Mass. 738

TOWN OF STOW v. Louis W. MARINELLI et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 4, 1967.

Decided June 14, 1967.

C. Thomas Zinni, Boston, for defendants.

Thomas R. Morse, Jr., Town Counsel, Boston, for plaintiff.

Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL, and REARDON, JJ.

SPALDING, Justice.

These are appeals from two decrees. The first enjoined the individual defendants and the defendant Garden City Gravel Corporation (Garden) from removing earth materials from certain premises in Stow without a permit; it also ordered other related relief for the plaintiff. The second decree arose out of a petition for contempt, brought before another judge, alleging that the terms of the first decree had been violated.

THE FIRST DECREE.

The evidence is reported and the judge made a report of the material facts. Pertinent facts found by the judge and by us are as follows: The defendants Louis Marinelli and Sonja Marinelli, husband and wife, are the owners of about thirty-six acres of land on the westerly side of White Pond Road in the town of Stow. About the time they purchased the property, the Marinellis, through Garden, a family owned corporation of which Louis Marinelli was president and treasurer, commenced to remove sand and gravel from a pit on the premises. Since April, 1963, 150,000 yards of sand and gravel were removed from the pit; there remained 1,000,000 yards of this material available for removal. In the course of the excavations, the loam and topsoil were removed and placed in piles for respreading after the operation was completed.

The sand and gravel pit is located about 1,000 feet from White Pond Road, a lightly traveled road which is the sole means of egress from the Marinellis' land. It varies in width from fourteen to sixteen feet and is sufficiently wide for trucks to pass one another. There are no sidewalks. There are several houses on it, in some of which are young children. The road leads to Route 117, the main highway through Stow. The number of trips a day of trucks carrying sand and gravel from the Marinelli pit over White Pond Road varied from five to twenty-five. The trucks were covered with canvas which prevented spillage and dust. Other sand and gravel pits are operating in the vicinity of the Marinelli pit, but these have means of egress other than White Pond Road.

On March 1, 1965, the town of Stow adopted a by-law (effective March 18, 1965) pursuant to G.L. c. 40, § 21(17), regulating the removal of earth materials. The pertinent parts of the by-law provide as follows: 'No permit for the removal of earth material shall be granted * * * unless the Board (of Selectmen) shall find that operations under such a permit * * * will not be contrary to the best interests of the Town. For this purpose, an operation shall be considered contrary to the best interest of the Town which: (1) will be injurious, dangerous to the public health or safety, constitute a nuisance, or (2) will produce noise, dust, or other effects, observable at the lot lines in amount objectionable or detrimental to the normal use of the adjacent property, or (3) will result in transportation of materials on ways giving access to the land in question which will cause traffic hazards or otherwise impair the amenities of living in residences abutting upon such way, or (4) will result in transportation which will cause undue injury to the roadway surfaces.'

Shortly after this by-law became effective the Marinellis, naming Garden and themselves as operators, applied to the selectmen of Stow for a permit to remove sand and gravel from their premises. A public hearing on the application was duly held by the selectmen on June 29, 1965. On August 9, the selectmen rendered a decision. They found 'that excavation of sand and gravel, and the loading of same, in and of itself, insofar as this may be done in the pit west of the brook, is not contrary to the best interests of the town as defined in (the by--law), (1) and (2). However the board was unable to agree that continued operations would not result in transportation of materials on ways giving access to the property which may impair the amenities of living in residences abutting on said ways. Consequently, the board was unable to find that continued operations would not be contrary to the best interests of the town.' ¹ The decision in substance directed the Marinellis and Garden to wind up the operations and to grade and restore the premises. This work was to be completed on or before October 11, 1965, at which time the temporary permit which had been issued for this purpose would terminate.

The Marinellis and Garden continued to remove sand and gravel after the temporary permit expired, and did not restore the premises as the permit directed. The town thereupon brought this bill in equity asking that the defendants be enjoined from conducting earth removal operations without a permit, that the town be authorized to enter upon the premises to restore them, and that the town be awarded damages for the cost of such restoration. The court's decree upheld the decision of the selectmen and granted the relief prayed for. ² The defendants appealed.

The defendants contend that the Stow by-law under which the board of selectmen acted is unconstitutional in that it made no exception for earth removal operations which were in existence prior to its passage. But we need not consider that question, as we are of opinion that the board's decision was invalid for other reasons.

The board found nothing objectionable in the operations conducted on the Marinelli property; indeed, it specifically found that such operations were not contrary to the town's best interests. The only aspect of the Marinellis' operations which was found to be objectionable was the traffic created over White Pond Road. And since the Marinellis' trucks were covered by canvas which prevented spillage and dust, the objectionable quality of such traffic was not peculiar to earth removal operations but was rather the fact that there was a substantial use of the road by trucks. There is nothing to indicate that trucks of equal size would not create the same traffic difficulties, regardless of whether they were laden with sand and gravel or with anything else. In effect, then, Stow is attempting to enforce a traffic regulation aimed solely at sand and gravel trucking but with no apparent grounds for distinguishing between that and other types of truck traffic.

General Laws c. 40, § 21(7), under which Stow enacted its by-law, enables towns to 'make such orders and by-laws * * * as they may judge most conducive to their welfare * * * (f)or prohibiting or regulating the removal of soil, loam, sand or gravel * * *.' We have said that the purpose of this enabling statute 'was to regulate the stripping of top soil so as to prevent the injurious effects brought about by the creation of waste areas.' Butler v. Town of East Bridgewater, 330 Mass. 33, 36, 110 N.E.2d 922, 924. Undoubtedly there are other purposes which may properly be accomplished under this statute: for instance, the regulation of noise, dust, or other effects which are peculiarly related to earth removal operations and detrimental to the public welfare. See Town of Burlington v. Dunn, 318 Mass. 216, 221, 61 N.E.2d 243, 168 A.L.R. 1181.

But we are of opinion that the enabling statute is not so broad as to permit the regulation of traffic in the manner attempted here. The power of a town to regulate traffic is provided by G.L. c. 40, § 22. See M & M Trans. Co. v. Town of Wellesley, 333 Mass. 11, 127 N.E.2d 794. General Laws c. 40, § 21(17), does not confer upon towns an additional power to regulate traffic.

The board's decision denying the Marinellis and Garden a permit and ordering them to restore their premises was invalid. The final decree, which was based on the validity of that decision, cannot stand. The entry must be: Decree reversed.

So ordered.

THE SECOND DECREE.

The first decree was entered on February 11, 1966. The defendants claimed an appeal on February 16. Thereafter, but before the appeal had been entered in this court, the defendants continued with their earth removal operations. This is not disputed. While these operations were being carried on the...