WILLIAM B. BEARD & others vs. TOWN OF SALISBURY & others (and a companion case).

HENNESSEY, C.J. In this case we are asked to consider the statutory and constitutional validity of a municipal by-law, adopted pursuant to G. L. c. 40, Section 21 (17), prohibiting the removal of sand, loam, or gravel from the confines of the town of Salisbury. Aggrieved by the application of the by-law to their earth removal operations, the plaintiffs brought a successful action in the Superior Court

Page 436

under G. L. c. 231A, Section 2, seeking an order declaring the town's by-law to be invalid and unenforceable. The town appealed the court's ruling and we transferred the case here on our own motion. By a majority of this court, we affirm.

The facts are not in dispute. On March 16, 1968, the town adopted a by-law providing that the removal of soil, loam, or sand from any parcel of land not in public use shall be allowed only after a written permit is obtained from the board of selectmen. Article 19, Section 1-1, Earth Removal By-Law. [Note 1] Two years later the town amended its earth removal policy by adopting an additional by-law, art. 19A, stating that "[n]o person who is an inhabitant of the town or noninhabitant of the town, company or corporation shall remove sand, loam or gravel from land not in public use out of the confines of the Town of Salisbury, Mass." [Note 2] Violation of art. 19A was made punishable by fines of $50 for the first offense, $100 for the second, and $200 for each subsequent infraction. [Note 3]

The plaintiffs in this action comprise a group of businessmen consisting of an earth removal or material contracting

Page 437

broker, owners of gravel pits located within the town of Salisbury, and several independent truckers, all of whom are working in contractual relationship with one another. At various times since 1965, the broker and truckers purchased and transported gravel out of the bounds of the town of Salisbury. These individuals continued their intercity earth removal business after passage of art. 19A; and during April and May, 1976, the plaintiffs jointly acted to remove loam, sand, or gravel from Salisbury locations to highway construction sites outside the town.

In response to the plaintiffs' conduct, the board of selectmen of the town initially issued cease and desist orders to those plaintiffs owning gravel pits. However, when compliance with the orders was not forthcoming, the selectmen instituted criminal complaints against the plaintiff-truckers in the District Court of Newburyport for violation of art. 19A; subsequently, the town obtained a restraining order in the Superior Court forbidding the plaintiffs from committing any further violations of art. 19A. For their own part, the plaintiffs brought this action seeking declaratory relief. It was consolidated with the action by the town to enjoin the plaintiffs' removal operations permanently, [Note 4] and on May 27, 1977, a judge in the Superior Court, ruling on the parties' stipulation of facts, [Note 5] determined that art. 19A was "arbitrary, unreasonable and invalid." In consequence, the town's outstanding restraining order was dissolved.

On appeal the plaintiffs advance what is basically a three-pronged challenge against art. 19A. They assert: (1) that the by-law is an unreasonable, and therefore

Page 438

excessive, exercise of the power the Legislature has conferred on municipalities to develop earth removal ordinances or by-laws; (2) that the by-law poses an impermissible burden on interstate and intrastate commerce; and (3) that the by-law, by effectively prohibiting the continuation of their pre-existing gravel removal business, unconstitutionally deprives them of interests in property. Because we believe the by-law exceeds the regulatory limits provided by the statute and cannot be sustained as a home rule by-law, we do not reach the latter two issues raised by the plaintiffs.

In commencing our consideration of the plaintiffs' claim that art. 19A extends beyond a municipality's power to fashion local earth removal ordinances or by-laws, we turn first to the enabling act for such ordinances or by-laws, G. L. c. 40, Section 21 (17). [Note 6] Under the terms of this

Page 439

statutory provision, cities and towns are empowered to "prohibit or regulat[e] the removal of soil, loam, sand or gravel from land not in public use in the whole or in specified districts of the town." Originally enacted by way of St. 1949, c. 98, the law was passed in "order that removal of earth products [could] be subject to ... regulation by a local community in the absence of a comprehensive zoning by-law." 1949 House Doc. No. 117, at 3. Byrne v. Middleborough, 364 Mass. 331, 333-334 (1973). Butler v. East Bridgewater, 330 Mass. 33, 36 (1953). See North Reading v. Drinkwater, 309 Mass. 200, 209 (1941). [Note 7] The broad purpose of the statute is to give municipalities the freedom to devise local solutions to the deleterious effects brought about by unrestrained earth removal. Butler, supra. [Note 8] See Dawson, Earth Removal and Environmental Protection, 3 Envt'l Aff. 166 (1974).

Our review of the instant by-law begins from the familiar proposition that local regulations, enacted pursuant to enabling statutes, are presumed valid. See Moss v. Winchester, 365 Mass. 297, 299 (1974). [Note 9] We emphasize, moreover,

Page 440

that it is not this court's province to evaluate the wisdom of a matter of municipal policy. Because due regard must be accorded to the wishes of local residents, the only questions which this court or other courts may address, apart from those involving the constitutionality of a challenged regulation or the procedural prescriptions precedent to the law's adoption, are whether a local enactment extends beyond the authority conferred by its enabling statute or whether it exceeds the implied powers which are granted municipalities by the Home Rule Amendment. [Note 10] As we have commonly held, a by-law or ordinance is invalid which oversteps the bounds of municipal power set by State law, or which is adopted as a mere pretext to effect regulations in excess of legislative authorization. See Stow v. Marinelli, 352 Mass. 738 (1967); Cawley v. Northern Waste Co., 239 Mass. 540 (1921); North Reading v. Drinkwater, supra. Municipal regulations not directly authorized by statute -- but permissible under the Home Rule Amendment -- will be deemed void if they are inconsistent with any portion of the General Laws. See Bloom v. Worcester, 363 Mass. 136 (1973).

In light of the above principles, we believe that the Salisbury by-law fails because it lacks a basis in either the earth removal statute or in the Home Rule Amendment. It is the view of a majority of this court that nothing in G. L. c. 40, Section 21(17), or the Home Rule Amendment can be construed to allow a municipality, by adopting an earth

Page 441

removal ordinance or by-law, to regulate or prohibit intermunicipal traffic and thereby bar the movement of persons, vehicles, or property beyond its boundaries.

Related to this result, but not directly determining it, is our case Stow v. Marinelli, supra, wherein we adjudged that Section 21 (17) was not "so broad as to permit the regulation of traffic." Id. at 742. Cf. Goodwin v. Selectmen of Hopkinton, 358 Mass. 164 (1970). In that case, unlike here, the town selectmen improperly revoked an earth removal permit on the expressly stated ground that such removal would generate undue traffic on a certain public way. But motive is not the only dispositive factor in deciding the validity of a local by-law or ordinance. We do not believe that the Legislature intended that the statute empowering local earth removal regulations was ever to be used in such a manner as to inhibit intermunicipal traffic -- even, as in this case, where the impact on traffic may be characterized as an incidental effect of an otherwise proper purpose.

Authority for a regulation of this nature is similarly absent from the Home Rule Amendment. Although the Home Rule Amendment confers broad powers on municipal governments, see generally Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 357-358 (1973), it does not appear to be so expansive as to permit local ordinances or by-laws that, as here, regulate areas outside a municipality's geographical limits. See Arlington v. Lillard, 116 Tex. 446 (1927); Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts, 48 Minn. L. Rev. 643, 686 (1964). Moreover, as a general matter, the authority to regulate traffic on the ways of the Commonwealth is a power vested in the General Court, see, e.g., G. L. c. 90, Section 31A. Although regulatory authority on this subject may be delegated by the Legislature, it is inconsistent with the present statutory scheme for a town to assume this power on its own.

We do not deny that, in certain circumstances, municipalities may have the power to restrict the movement

Page 442

of refuse or other materials dangerous to health and safety. However, the considerations underlying possible regulations such as these do not apply to loads of gravel, whether coming into or going out of a municipality. Indeed, we are struck by the fact that the town's regulation is in no sense essential to achieve whatever environmental protection purposes might be locally desired. The town has ample authority to regulate the location and extent of earth removal within its jurisdiction. In fixing such limits, it may even consider the quantity of removal necessary for use within the town. But once earth is removed from an approved pit, the town cannot prevent its transportation to points outside the town.

Judgments affirmed.