MORSE BROTHERS, INC. v. TOWN OF HALIFAX & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties

and, therefore, may not fully address the facts of the case or the panel's

decisional rationale. Moreover, such decisions are not circulated to the entire

court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-260

MORSE BROTHERS, INC.

vs.

TOWN OF HALIFAX & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The town of Halifax, through its select board (town),

pursuant to its nonzoning police power to regulate earth removal

under G. L. c. 40, § 21 (17), and its earth removal bylaw

(bylaw), required Morse Brothers, Inc. (Morse Brothers) to

obtain a permit with numerous conditions2 to continue cranberry

bog sanding, which it had been conducting for over forty-five

1 Select Board of Halifax.

2The permit contained a list of twenty-five conditions,

which among others, restricted the time, days, and manner in

which Morse Brothers was permitted to engage in its bog

maintenance; restricted the transport of sand on the town's

public ways; made Morse Brothers strictly liable for "spillage"

on public ways; required Morse Brothers to pay a "fee" based on

the volume of sand used; and required Morse Brothers to provide

the town "free access to the Property to conduct weekly

inspections at any time without prior notice."

years. Morse Brothers applied for the permit under protest, and

claimed an exemption to the bylaw because the removal and

transport of sand for maintaining and improving its cranberry

bogs were protected agricultural activities under G. L. c. 40A,

§ 3.

Morse Brothers filed a Superior Court action in the nature

of certiorari, see G. L. c. 249, § 4, which challenged the

permit and its conditions.3 On cross motions for judgment on the

pleadings, a Superior Court judge allowed Morse Brothers's

motion and denied the town's motion. The town appeals, and we

affirm.4

A civil action in the nature of certiorari under G. L.

c. 249, § 4, is "to relieve aggrieved parties from the injustice

arising from errors of law committed in proceedings affecting

their justiciable rights when no other means of relief are

open." Figgs v. Boston Hous. Auth., 469 Mass. 354, 361 (2014),

quoting Swan v. Justices of the Superior Court, 222 Mass. 542,

544 (1916). "The scope of judicial review for an action in the

nature of certiorari under G. L. c. 249, § 4, is limited."

Retirement Bd. of Somerville v. Buonomo, 467 Mass. 662, 668

Morse Brothers also sought declaratory relief pursuant to

3

G. L. c. 231A, § 1.

We acknowledge the amicus brief filed by Pioneer New

4

England Legal Foundation.

2

(2014). The judge's role on certiorari review is to "correct

substantial errors of law apparent on the record adversely

affecting material rights." Doucette v. Massachusetts Parole

Bd., 86 Mass. App. Ct. 531, 540–541 (2014), quoting Firearms

Records Bur. v. Simkin, 466 Mass. 168, 180 (2013). We review

the record to determine whether the municipality's decision was

"arbitrary and capricious, unsupported by substantial evidence,

or otherwise an error of law." Hoffer v. Board of Registration

in Med., 461 Mass. 451, 458 n.9 (2012). Finally, we review a

decision allowing a motion for judgment on the pleadings de

novo. Delapa v. Conservation Comm'n of Falmouth, 93 Mass. App.

Ct. 729, 733 (2018).

The town claims the judge erred by determining that Morse

Brothers was entitled to an agricultural exemption to the

permitting process required by the bylaw. We disagree. At play

in this case is the intersection and application of two

statutes: G. L. c. 40, § 21 (17), which regulates a landowner's

earth removal activity, and G. L. c. 40A, § 3, which protects a

landowner's right to engage in agricultural land use. These

potentially conflicting statutes must be construed in a manner

which harmonizes them to be consistent with their legislative

purposes. See Concord v. Water Dep't of Littleton, 487 Mass.

3

56, 60 (2021); McNeil v. Commissioner of Correction, 417 Mass.

818, 822 (1994).

Section 21 of chapter 40 includes an express limitation of

a local government's authority to regulate earth removal,

prohibiting towns from acting in a manner that is " repugnant to

law." G. L. c. 40, § 21. Importantly, G. L. c. 40A, § 3,

expressly prohibits towns from requiring a special permit to

engage in agricultural activity. Section 3 states: "No zoning

ordinance or by-law shall . . . unreasonably regulate, or

require a special permit for the use of land for the primary

purpose of commercial agriculture, aquaculture, silviculture,

horticulture, floriculture or viticulture . . . ." (emphasis

added).

As is readily discernible, the intersection of these

statutes does not redound to the town's benefit. Here, the

town's permit requirement for the Morse Brothers's cranberry bog

sanding operation is repugnant to G. L. c. 40A, § 3. In broader

terms, when a landowner engages in earth removal activity that

is also a protected land use under G. L. c. 40A, § 3, a town may

not exercise its police power in ways that are "repugnant to"

the landowner's protected agricultural activity. See Newbury

Junior College v. Brookline, 19 Mass. App. Ct. 197, 206 (1985)

(municipality may not, through exercise of statutory power to

4

license lodging houses, "undo" G. L. c. 40A, § 3, which protects

dormitories as educational land use).

The town also claims that G. L. c. 40A, § 3, applies only

to zoning ordinances, and that the bylaw was not enacted

pursuant to § 3, but rather pursuant to G. L. c. 40, § 21 (17),

which relates to earth removal projects. However, as the judge

properly determined, the town cannot exercise its licensing

authority in a manner that undermines the protection found in

G. L. c. 40A, § 3. See Rayco Inv. Corp. v. Board of Selectmen

of Raynham, 368 Mass. 385, 394 (1975) (municipality cannot

exercise independent police powers in manner which frustrates

purpose of general or special law enacted by Legislature). In

other words, a property owner's protected land use simply cannot

be "dependent on the discretionary grant of a special permit by

the [town]." The Bible Speaks v. Board of Appeals of Lennox, 8

Mass. App. Ct. 19, 32 (1979).5

5 The town also claims that it is not prohibiting Morse

Brothers's agricultural use of its land, but is merely

subjecting that use to reasonable conditions similar to a site

plan review bylaw. However, the cases the town relies on in

support of this claim are inapposite. See Valley Green Grow,

Inc. v. Charlton, 99 Mass. App. Ct. 670, 674 (2021) (cannabis

production expressly excluded from agriculture protected by

G. L. c. 40A, § 3); Dufault v. Millennium Power Partners, L.P.,

49 Mass. App. Ct. 137, 139 (2000) (site plan review of electric

generating facility unrelated to agriculture); and an

unpublished Land Court decision related to solar facilities, not

agriculture protections.

5

Similarly, the town's imposition of numerous and onerous

conditions in the permit would substantially impede Morse

Brothers's ability to grow its cranberry crops, making the

conditions repugnant to G. L. c. 40A, § 3. See Trustees of

Tufts College v. Medford, 415 Mass. 753, 759-760 (1993). As the

judge held, the permit conditions are arbitrary and capricious.

The judge properly determined, "[t]he administrative record

contain[ed] no fact finding by the [b]oard to support the

conclusion that Morse's trucks pose any greater hazard than

traffic in the area generally, although residents vehemently

expressed the belief that they do." In fact, the board made no

actual findings of any specific traffic concerns tied to any of

the specific permit conditions.

In addition, the judge also properly determined that the

town had no basis or authority for the transportation

restrictions imposed by the permit conditions. Section 21 (17)

of chapter 40 does not confer power on towns to restrict

transportation even if arguably related in some fashion to earth

removal. See Stow v. Marinelli, 352 Mass. 738, 742-743 (1967).

Although Morse Brothers must abide by the laws and regulations

that apply to the inspections, licensing, speed, liability, and

operations of all vehicles and operators on the town's public

ways, the town simply lacks authority to apply separate traffic

6

regulations under its earth removal bylaw. See id. at 743

("General Laws c. 40, § 21 (17), does not confer upon towns an

additional power to regulate traffic"). The conditions

restricting transportation are invalid.

The town also acted "repugnant to law" when it imposed a

costly fifty cent "fee" for each cubic yard of sand that Morse

Brothers excavated and transported to its other properties.

While Morse Brothers argued that the "fee" was an illegal tax,

we agree with the judge that we need not reach that question

because, based on the administrative record, the town failed to

comply with its own internal procedures for the establishment of

a uniform fee for all earth removal permits, instead choosing to

impose a particular fee to this individual case. As a result,

the fee imposed here was arbitrary and capricious and based on

an error of law. Id.

In conclusion, the town's bylaw which required Morse

Brothers to obtain a permit with numerous conditions was

arbitrary and capricious, unsupported by substantial evidence,

or otherwise an error of law. Because the bylaw conflicts with,

and is repugnant to, the agricultural protections found in G. L.

c. 40A, § 3, it is unreasonable, and it may not be applied to

7

the Morse Brothers's cranberry sanding operation.

Judgment affirmed.

By the Court (Meade, Neyman &

Walsh, JJ.6),

Clerk

Entered: October 29, 2025.

6 The panelists are listed in order of seniority.

8