By complaint filed March 5, 1991, Jerome and Rebecca Larason both as individuals and as trustees of Camelot Realty Trust ("Plaintiffs") appealed, pursuant to G.L. c. 40A, §17, a decision of the Board of Selectmen of the Town of Sharon ("Defendants" or "the Town") denying an application for a special permit under §4110 of the Sharon Zoning by-law ("the By-Law"), to remove earth materials from a parcel of land located at 74 Chase Drive in Sharon ("Locus" or "the Premises"). Plaintiffs allege that the removal of such earth materials is necessary to develop a portion of Locus for the raising of cranberries.
Plaintiffs also seek a determination that the Town may not, by virtue of G.L. c. 40, §3, require a special permit for use of land for horticultural purposes and that, accordingly, Plaintiffs are entitled to remove earth from Locus for the purpose of creating cranberry bogs without seeking a special permit for earth removal.
Plaintiffs motion for summary judgment on the declaratory judgment count was argued on December 4, 1991, and both parties filed affidavits and memoranda of law.
Since the only question before the Court on this motion is whether or not G.L. c. 40A, §3 permits Defendants to regulate, by special permit, the removal of earth in connection with a horticultural use, I find and rule that as to that issue there are no material issues of fact and that as to that matter the case is ripe for summary judgment. Community National Bank v. Dawes, 369 Mass. 550 (1926).
The pertinent language of G.L. c. 40A, §3 provides:
No zoning . . . by law shall . . . prohibit, unreasonably regulate or require a special permit for the use of land for the primary purpose of agriculture, horticulture, floriculture or viticulture; . . . except that all such activities may be limited to parcels of more than five acres in area not zoned for agriculture, horticulture, floriculture or viticulture. . . .
Clearly, the Town may not prohibit, unreasonably regulate or require a special permit for the use of land for the primary purpose of growing cranberries, nor from a reasonable reading, from making such changes to the land as may be reasonably necessary for such use, preparation of land being an agricultural use as well as is the actual cultivation of plants.
The Town has adopted, as part of its Zoning By-Law, §4100 which provides:
The stripping or removal from any land of soil, . . . or any other earth material is permitted . . . provided that such stripping or removal . . . is actually necessary as part of a bona fide farm . . . and provided further that except [in circumstances inapplicable to the present case], a license authorizing each such stripping or removal shall have been obtained in advance from the Selectmen, who may impose fee for license, and such conditions as shall safeguard the Town and neighborhood.
Such section is not in conflict with G.L. c. 40A, §3, except insofar as Defendants admittedly interpret the license requirement to be a special permit as provided in G.L. c. 40A, §9. As above stated, a special permit may not be required for such activity, although reasonable regulations, which do not serve to prohibit the use may be established.
Defendants question whether or not earth removal may be further regulated under their General By-Law Article 12A. That Article is one apparently adopted pursuant to G.L. c. 40, §21(17) and provides a penalty for activity not in keeping with the Zoning By-Law. The Special By-Law is inapplicable as suggested by Defendants inasmuch as a G.L. c. 40, §21 by-law may not be used to expand zoning use regulations in excess of limitations imposed by G.L. c. 40A, §3. To adopt Defendants' reasoning would have this effect.
I in no way decide herein whether or not the proposed earth removal by Plaintiffs is necessary or even incidental to developing their land for agricultural or horticultural purposes.
Accordingly, it is hereby Adjudged and Ordered that;
Defendants may not require a special permit for the use of Plaintiffs land for the growing of cranberries, including the preparation of the land for such use, and it is further Ordered and Adjudged that:
Defendants may not prohibit the removal of earth from the premises provided such removal is reasonably necessary for the preparation of the land for or the actual cultivation of cranberries.
By the Court