31 Mass. App. Ct. 46

March 14, 1991 - July 12, 1991

Plymouth County


The excavation and removal of 460,000 cubic yards of fill from a certain site was not "incidental" to the construction and maintenance of a cranberry bog, an approved use of the site, with the result that a special permit was required under the terms of the applicable municipal zoning by-law for the removal of the fill. [47-49]

A Superior Court judge correctly upheld a zoning board's denial of a special permit for the excavation and removal of fill, where he determined that the board was warranted in finding that the removal of 460,000 cubic yards of fill was not "incidental" to the allowed use of the site so as to be excepted from zoning and aquifer protection requirements and in finding that adequate and appropriate facilities were not available for the proposed removal operation. [49-50]

CIVIL ACTION commenced in the Superior Court Department on January 29, 1988.

The case was heard by James J. Nixon, J.

John H. Wyman for the plaintiff.

Jane M. O'Malley for the defendant.

DREBEN, J. Old Colony Council - Boy Scouts of America (plaintiff) is a charitable organization which owns and operates a summer camp for Boy Scouts in Plymouth. To become more self-sufficient and lessen its reliance on external funds, it sought to create a new cranberry bog adjacent to an existing nonproductive bog on a portion of its campsite. The cost of constructing the bog would, under the plaintiff's plan, be paid for by the sale of excavated material to the site contractor,

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who would construct the bog and would pay the plaintiff in addition approximately $200,000.

The site chosen requires reducing the elevation of a hill (from 106 feet to fifty-three feet in one area) and the removal by truck of 460,000 cubic yards of earth. Removing this quantity of earth will entail thirty truck trips per day on a narrow gravel road, five days a week, for two and a half years.

When the plaintiff applied for a zoning permit, [Note 1] the town's zoning agent refused to issue one on the ground that a special permit was required under Section 301.06 of the zoning by-law. The plaintiff petitioned the zoning board of appeals (board) to reverse the decision of the zoning agent or, in the alternative, to grant a special permit for the proposed excavation. After the board denied both requests, the plaintiff unsuccessfully sought relief in the Superior Court pursuant to G. L. c. 40A, Section 17. It now appeals from the judgment of the Superior Court. We affirm.

1. Zoning permit. The plaintiff first claims that a special permit is not needed and that a zoning permit should be issued because its proposal falls within the exception provided in Section 301.06 of the by-law. That section is part of the "Natural Features Conservation Requirements" of the by-law, the intent of which, as expressed in Section 301.01, "is to prevent cumulative damage to landscape and topography and related valuable and non-renewable natural resources of the Town of Plymouth." Even for allowable uses a zoning permit is required so that, as stated in Section 301.02, the building inspector "shall review applications for conformity with this section," that is, as few lasting changes in topography as possible are to be made.

Section 301.06, upon which the plaintiff relies, provides:

"Except when incidental to and reasonably required in connection with the construction of an approved

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use . . . no removal for sale, trade or other consideration, or for use on a separate site, of soil, sand, gravel, or quarried stone in excess of ten (10) cubic yards shall be allowed except by special permit. . . . Such special permit for excavation shall be subject to all applicable Environmental Design Conditions . . . and . . . the Board of Appeals may prescribe additional conditions and safeguards . . . ."

The plaintiff's argument is that a special permit is necessary only when the sole purpose is earth removal; where a use is permitted as of right, no special permit is needed for the excavation necessary to prepare a site for that permitted use, regardless of the quantity of the earth materials to be removed. Therefore, according to the plaintiff, since the creation and cultivation of cranberry bogs are permitted as of right, the court erred in upholding the board's denial of the zoning permit.

The purpose of Section 301 and the language used in Section 301.06, when read in the light of that aim, support the reading adopted by the board and the judge. Whether there is "damage to the landscape and topography" surely does not depend on intent, but rather on what happens on the ground. Demolition of a hill does or does not damage the landscape irrespective of the demolisher's purpose.

Section 301.6 uses the word "incidental," a term which, when used in the context of zoning, often incorporates the concept "that the use must not be the primary use of the property but rather one which is subordinate and minor in significance." Harvard v. Maxant, 360 Mass. 432, 438 (1971), quoting from Lawrence v. Zoning Bd. of Appeals of North Branford, 158 Conn. 509, 512 (1969). The ordinary lexical meaning of "incidental" also connotes something minor or of lesser importance. [Note 2] According this meaning to the

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word "incidental," in our view, best achieves the purpose of the special section of the by-law of which Section 301.06 is a part.

That the excavation was not minor or incidental follows from the findings of the judge: "The net effect of the plaintiff's undertaking . . . is the creation of a sand and gravel quarry in conjunction with creating a cranberry bog." Where, as here, the proposal involved the removal of 460,000 cubic yards of fill over a two and a half year period and an excavation which would provide substantial funds in excess of the cost of constructing the bog, the judge was warranted in upholding the board's conclusion that the excavation of material was not incidental to the construction and maintenance of a cranberry bog.

2. Special permit. "Under . . . G. L. c. 40A, Section 17, a court reviewing a decision of the board denying a permit does not possess the same discretionary power as does the board, and the decision of the board can only be disturbed `if it is based "on a legally untenable ground" . . . or is "unreasonable, whimsical, capricious or arbitrary" . . . . To hold that a decision . . . denying a permit is arbitrary . . . whenever the board, on the facts found by the trial judge, could have granted a permit, would eliminate the board's intended discretion.' Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277-278 (1969)." Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483, 486-487 (1979).

The judge was correct in upholding the board's denial of the special permit under Section 301.06. The campsite was subject both to the zoning requirements of a "Rural Residential District" and the more stringent requirements of an "Aquifer Protection District." In the latter, Section 401.17(F)(1)(j) prohibits: "The mining of land except as incidental to a permitted use; such as cultivation of cranberries." Allowed are uses which are permitted in "Wetlands Areas," "including uses incidental thereto such as the excavation and use of materials in connection with the creation and maintenance of agricultural uses, such as cranberry bogs." Zoning by-law of Plymouth Section 401.17 (D)(1).

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Not only was the board warranted in determining that the removal of the material was not "incidental" to the creation of an allowed use, but it also had good reason to decide that adequate and appropriate facilities were not available for the proposed operation. [Note 3] As the judge found, the road to be used was a narrow gravel road, the trucks to be employed were heavy and wide and, in some places, would not be able to pass each other. The board's refusal of a special permit for earth removal was not arbitrary or whimsical.

Judgment affirmed.


[Note 1] A zoning permit is required for all excavations in excess of ten cubic yards to ensure that there is compliance with the "Natural Features Conservation Requirements," Section 301 of the Plymouth zoning by-law.

[Note 2] In Webster's Third New International Dictionary 1142 (1971), the first definition given of "incidental" is "subordinate, nonessential, or attendant in position or significance." In the American Heritage Dictionary 664 (1976), "incidental" is defined as "[o]ccurring as a fortuitous or minor concomitant: incidental expenses."

[Note 3] The board also urges that Section 407.17 (D)(1) means that the "excavation and use" must both be on the property. Since we hold that the board was justified in concluding that the excavation was not "incidental," we need not reach this issue. We also need not reach other issues, including whether a special permit procedure exists in an "Aquifer Protection District."