Board of Selectmen of Pepperell v. Zoning Board of Appeals of Pepperell

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22-P-1168 Appeals Court

BOARD OF SELECTMEN OF PEPPERELL vs. ZONING BOARD OF APPEALS OF

PEPPERELL & another1 (and a consolidated case2).

No. 22-P-1168.

Suffolk. December 5, 2023. – April 12, 2024.

Present: Green, C.J., Neyman, & Englander, JJ.

Dump. Municipal Corporations, Dump, By-laws and ordinances.

Zoning, Dump, Accessory building or use, By-law.

Declaratory Relief. Practice, Civil, Declaratory

proceeding, Summary judgment.

Civil actions commenced in the Land Court Department on

February 14 and 15, 2019.

After consolidation, the cases were heard by Diane R.

Rubin, J., on motions for summary judgment.

Christine E. Dieter for Mass Composting Group Inc., &

another.

David K. McCay for board of selectmen of Pepperell.

Jonathan M. Silverstein for Phillip Dzubinski & others.

1 Mass Composting Group Inc.

2 Phillip Dzubinski & others vs. Zoning Board of Appeals of

Pepperell & others.

2

GREEN, C.J. Mass Composting Group Inc. (MCGI) proposes to

conduct a soil reclamation project on a former gravel pit in the

town of Pepperell (town). As described by MCGI, the project

would entail depositing soils and materials on the property over

a seven to nine year period to prepare the property for future

development. On motions for summary judgment, a judge of the

Land Court concluded and declared that section 277 of chapter

165 of the acts of 2014 (§ 277) does not preempt the town's

authority to regulate the proposed project, and that the

proposed project constitutes a commercial dumping ground as

defined in the local zoning bylaw –- a use prohibited in the

industrial zoning district in which the property is located.

MCGI appeals, and we vacate the judgment. We remand for the

entry of a declaratory judgment consistent with this opinion and

for further consideration of whether the proposed project is a

use prohibited by the bylaw.

Background. 1. The locus and project. The site at issue

consists of forty-nine acres located in the town's industrial

zoning district, and was the site of a gravel pit or quarry

between 1965 and the late 1980s. There is no current gravel

removal operation, or other active use, conducted on the site.3

3 A three-year special permit was granted for soil and

gravel removal in 1985. The board of selectmen (board) issued a

new special permit for gravel removal in 1991, but it was

3

MCGI seeks to "reclaim" the property by a project that will

deposit approximately 3.2 million cubic yards of "soil" over a

seven to nine year period. The project would include

installation of a scale house, electrical utilities, fencing,

and monitoring wells. The soil deposits would be comprised of

"excess soil from excavation and construction projects in

Massachusetts," and "qualified soils" from Vermont, New

Hampshire, and Maine. Approximately sixty-five truckloads a day

would be deposited, bulldozers would flatten the soil, and the

process would be repeated to achieve a final elevation. MCGI's

stated purpose of the proposed project is "to improve current

topographic conditions by restoring elevations to pre-quarrying

conditions, install a sustainable vegetative cover[,] and

prepare the property for future development." MCGI has not

identified a specific future use, though a solar farm has been

discussed.

Prior to quarrying activities, the elevation of the

property ranged from 170 to 260 feet above sea level, with the

majority of the site at over 200 feet in elevation. Current

topography ranges between 172 to 260 feet above sea level;

Nashua Road, which fronts the western and northern edges of the

property, is 195 to 220 feet above sea level. The project's

subsequently revoked in 1992. The record does not reflect that

any further permitting for gravel removal currently exists.

4

proposed finished grade will be a flat plateau of fourteen to

seventeen acres at 299.5 feet above sea level, an apparent

deviation from the project's stated purpose that we will discuss

later in this opinion.

The owners of the originating sites will pay MCGI to

deposit excess soil and fill material on the site. If it were

not being paid, MCGI would not take the soil. The proposed

project, as designed, would generate $20 to $25 million in

revenue for MCGI over the course of the project.

2. Legislation and agency policy. In 2014, the

Legislature directed the Department of Environmental Protection

(department) to establish "regulations, guidelines, standards[,]

or procedures for determining the suitability of soil used as

fill material for the reclamation of quarries, sand pits[,] and

gravel pits." § 277. Section 277 provides

"[t]he regulations, standards[,] or procedures shall ensure

the reuse of soil poses no significant risk of harm to

health, safety, public welfare[,] or the environment

considering the transport, filling operations[,] and the

foreseeable future use of the filled land. The department

may adopt, amend[,] or repeal regulations establishing:

(1) classes or categories of fill or reclamation activities

requiring prior issuance of a permit issued by the

department; (ii) classes or categories of fill or

reclamation activities that may be carried out without

prior issuance of a permit issued by the department; and

(iii) classes or categories of fill that shall require

local approval based on the size, scope[,] and location of

a project" (emphasis added).

5

In response, the department adopted an interim policy under

the authority of § 277. See "Interim Policy on the Re-Use of

Soil for Large Reclamation Projects Policy #COMM-15-01" (August

28, 2015) (interim policy). See also the department's "Similar

Soils Provision Guidance," WSC#-13-500 (Sept. 4, 2014). The

interim policy sets out the procedure by which the department

will review quarry reclamation proposals, stating, inter alia,

that its purpose is to provide

"notice of [the department's] intent to issue site-specific

approvals, in the form of an Administrative Consent Order,

to ensure [that] the reuse of large volumes of soil for

reclamation of . . . quarries poses no significant risk of

harm to health, safety, public welfare[,] or the

environment and would not create new releases or threats of

releases of oil or hazardous materials."

Among other things, the interim policy requires that soil

accepted by the quarry "can contain no more than de minimis

quantities of Solid Waste (e.g.[,] Municipal Solid Waste and/or

Construction and Demolition Waste) as defined in 310 C[ode]

M[ass.] R[egs.] [§] 16.00 [2012] and 310 C[ode] M[ass.] R[egs.]

[§] 19.00 [2014]."4 Further, projects "must ensure that the

filling does not create new, reportable releases of oil or

hazardous materials to the environment."

Finally, the interim policy specifically provides that

4 These regulations define "Construction and Demolition

Waste," and "Municipal Solid Waste," see 310 Code Mass. Regs.

§ 16.02 (2012) and 310 Code Mass. Regs. § 19.006 (2014), but do

not define the term "de minimis."

6

"[n]othing in this Interim Policy eliminates, supersedes[,]

or otherwise modifies any local, [S]tate[,] or [F]ederal

requirements that apply to the management of soil,

including any local, [S]tate[,] or [F]ederal permits or

approvals necessary before placing the soil at the

receiving location, including, but not limited to, those

related to placement of fill, noise, traffic, dust control,

stormwater management, wetlands, groundwater[,] or drinking

water source protection."5

The interim policy anticipates that the developer will work

closely with local authorities and respond appropriately to

their comments "on project impacts related to noise, dust, odor

and/or trucks." In addition, the interim policy requires a

"plan for communicating with the public and involving interested

parties at key points in the implementation of the reclamation

project."6

3. Local zoning. The local zoning bylaw (bylaw) contains

a "Table of Principal Uses." See Pepperell zoning bylaw,

5 The interim policy provides that it will stay in effect

until regulations are adopted, and that projects commenced under

an administrative consent order would be accommodated by any

regulations subsequently adopted. Counsel for MCGI confirmed at

oral argument that no relevant regulations have yet been

adopted.

6 The project, as proposed, would comply with the interim

policy requirements and ongoing soil testing, and screening

would occur to ensure the suitability of the deposits before

they are made. MCGI indicated at oral argument that, although

it had submitted a request for approval of the project to the

department, the department has suspended its review of that

request until this action is resolved. For purposes of these

declaratory judgment actions, we will assume that any project

executed by MCGI will obtain an appropriate administrative

consent order from the department before it commences.

7

Appendix A, as revised July 28, 2014. A soil reclamation

facility is not a use listed in the table. Id. Pursuant to the

bylaw's table of principal uses, a commercial dumping ground is

not allowed in any zoning district in the town. Id. The bylaw

defines a "commercial dumping ground" as a "disposal site for

garbage, rubbish, the deposit of demolition materials or other

refuse[,] or as a site for a refuse disposal incinerator." Id.

at § 10000.

4. Procedural history and Land Court decision. Cleared of

the underbrush, before us are the parties' requests for

declaratory judgment pursuant to G. L. c. 231A and G. L. c. 240,

§ 14A.7 All of the parties, whether in a complaint or

7 The case followed a convoluted path to reach us for

review. On September 24, 2018, the board of selectmen (board)

requested that the building inspector determine whether the

proposed project qualifies as a "commercial dumping ground" and

whether a commercial dumping ground is an allowed use of the

property. Although the building inspector determined that the

proposed project constitutes a commercial dumping ground, the

town's zoning board of appeals (zoning board) disagreed, and the

board thereafter commenced an action challenging the zoning

board's decision pursuant to G. L. c. 40A, § 17. A group of

town residents, mostly abutters and referred to as the "private

plaintiffs," among other things (residents), also commenced a

similar action pursuant to G. L. c. 40A, § 17. After the two

cases were consolidated, a judge suggested that the zoning board

was without jurisdiction to review that building inspector's

determination, so that the § 17 appeals were inapt as a means to

consider the question. Instead, she suggested that the parties'

dispute should more appropriately be resolved by amended

complaints under G. L. c. 240, § 14A. Accordingly, by third

amended complaint, the residents sought, among other things, a

declaratory judgment, pursuant to G. L. c. 231A and G. L.

c. 240, § 14A, that the zoning board's decision did not

8

counterclaim, have sought a declaration as to whether the

proposed project is prohibited as a "commercial dumping ground"

or because the proposed use constitutes a use that is not

otherwise allowed in the town. Although G. L. c. 240, § 14A,

does not authorize the board of selectmen (board) to bring a

declaratory judgment action,8 MCGI unquestionably has the right

to obtain a declaratory judgment that will resolve doubts as to

the requirements of the zoning bylaw as applied to its property,

establish that the proposed project was an allowed use under the

town's zoning bylaw. In its second amended complaint, the board

added a count seeking a declaratory judgment, pursuant to G. L.

c. 231A, that the project is a prohibited use under the bylaw,

and a declaratory judgment pursuant to G. L. c. 240, § 14A, that

the proposed project is prohibited because it constitutes a

commercial dumping ground and is not otherwise allowed under the

zoning bylaw. In its answer to the board's second amended

complaint, MCGI asserted two counterclaims -- the first seeking

a declaratory judgment pursuant to G. L. c. 231A, § 1, that the

project does not constitute a "commercial dumping ground," and

that § 277 preempts the bylaw, and the second seeking a

declaratory judgment, pursuant to G. L. c. 240, § 14A, that the

project would not constitute a "use" under the bylaw. Ruling on

cross motions for summary judgment by the board and the

residents -- and with the parties stipulating to the dismissal

of their G. L. c. 40, § 17, appeals -- the judge concluded that

the project was a commercial dumping ground, and that § 277 did

not preempt the town's authority to regulate the project.

Summary judgment entered in favor of the board and the residents

on all claims. Accordingly, no issues relevant to an appeal

under § 17 are before us, and only the parties' claims for

declaratory relief and judgment are before us.

8 We also note that the board ordinarily would not be

entitled to a declaratory judgment concerning an interpretation

of the bylaw under G. L. c. 231A. See Leonard v. Zoning Bd. of

Appeals of Hanover, 96 Mass. App. Ct. 490, 500 (2019).

9

and the board is the appropriate party defendant in any such

action.9 See G. L. c. 240, § 14A; Whitinsville Retirement Soc'y,

Inc. v. Northbridge, 394 Mass. 757, 762-763 (1985). The issue,

therefore, is properly before us and we proceed to consider it.

The judge identified the issues before her as whether the

project would be lawful under the bylaw and whether § 277 and

the interim policy preempt the local bylaw. Where the soil

management plan allows up to five percent by volume of asphalt,

brick, and concrete material, and up to one percent of ash or

solid waste, the judge concluded that the deposits are

reasonably characterized as trash or garbage. The judge

rejected the idea that only de minimis amounts of such

prohibited materials would be deposited; she calculated that,

based on the scope of the proposed project, up to 192,000 cubic

yards of prohibited materials would be deposited in total. She

concluded that the department's limitation of "de minimis"

amounts of prohibited materials is irrelevant where the bylaw's

definition of commercial dumping ground does not contain a

qualifying threshold amount of prohibited materials. The judge

9 The residents, too, have authority under G. L. c. 240,

§ 14A, to challenge a bylaw interpretation to the extent "there

is a direct effect of the zoning enactment through the permitted

use of other land." Hansen & Donahue, Inc. v. Norwood, 61 Mass.

App. Ct. 292, 295 (2004), quoting Harrison v. Braintree, 355

Mass. 651, 655 (1969).

10

ultimately concluded that the proposed project would constitute

a commercial dumping ground, prohibited by the town's bylaw.

The judge also concluded that § 277 and the interim policy

do not preempt local bylaws from prohibiting the filling of

quarries with reclaimed soil. The judge reasoned that "[w]hile

[§ 277] does contemplate uniform standards for determining the

suitability of fill for the reclamation of quarries, sand

pits[,] and gravel pits, it stops short of explicitly limiting

the manner in which cities and towns may also act to regulate

land within their boundaries."

Having concluded that the project constitutes an

impermissible commercial dumping ground, the judge declined to

consider whether, as the board argued, (1) the project would

only be an allowable "accessory or incidental use to a quarry or

gravel pit" if the primary use were allowed under the bylaw; (2)

where the bylaw prohibits uses not expressly permitted, the

project falls under no allowed use category; and (3) the project

requires a water resource protection overlay district special

permit, which MCGI has not obtained.

Discussion. 1. Commercial dumping ground. We first

consider whether the proposed project will constitute a

"commercial dumping ground," defined in the bylaw as a site for

the disposal of "garbage, rubbish, . . . demolition materials[,]

or other refuse." Pepperell zoning bylaw § 10000. The bylaw

11

does not contain specific definitions of the latter terms, but

"[w]e construe the meaning of a bylaw using 'ordinary principles

of statutory construction,' beginning with the plain language of

the bylaw" (citation omitted). Williams v. Board of Appeals of

Norwell, 490 Mass. 684, 693 (2022).

Because of the posture in which these issues come before us

(i.e., before review and approval by the department under its

interim policy), we will assume that the proposed project, as

eventually executed, will comply with § 277 and the interim

policy and will be approved by the department.10 Thus, our

review assumes that the department will determine that, as to

any project it approves, there is no "significant risk of harm

to health, safety, public welfare[,] or the environment[,]" see

§ 277, and only "de minimis quantities of Solid Waste" will be

deposited, see interim policy.11 Further, as provided in the

interim policy, the department will ensure that the project will

"not create new, reportable releases of oil or hazardous

materials to the environment." Rather than quibble about the

meaning of commonly used terms such as garbage, rubbish, and

10In other words, we presume that, since such approval is

required by the department's interim policy, no quarry

reclamation project will proceed unless and until it receives

such approval.

11We offer no opinion on whether the department will in

fact grant its approval to the proposed project.

12

refuse as used in the bylaw, we accept that "de minimis"

quantities of such materials as described in § 277 and the

interim policy will be deposited on the site pursuant to the

proposed project. That does not mean, however, that the

inclusion in the soils used as fill in the quarry reclamation

project of de minimis quantities of materials that might be

described as "refuse," in some sense of the term, will cause the

site to be considered a "commercial dumping ground" within the

meaning of the bylaw.

In the context of the proposed project, a number of factors

lead us to conclude that the proposed project will not

constitute a commercial dumping ground (assuming, again, that

only a de minimis quantity of harmful materials are deposited).

Section 277 and the interim policy act together to ensure that

the soils deposited at the project site will pose "no

significant risk of harm to health, safety, public welfare[,] or

the environment." § 277. Indeed, as we read it, the very

purpose of § 277 and the interim policy is to ensure, in effect,

that a quarry is not used as a commercial dumping ground. The

department's interim policy seems to recognize, however, that it

would be difficult, if not impossible, to fill a quarry with

soil and materials that do not include any materials that, in

bulk, could put the health, safety, public welfare, or the

environment at risk. Thus, the statutory framework engages the

13

department in making a determination of whether any such

materials are "de minimis," and any project approved by the

department will of necessity conform to that standard. We

conclude that the department's approval of the composition of

soils deposited on the site, based on its determination that the

soils are appropriate for use as fill, means that the soils are

not "garbage" or "refuse" within the meaning of the bylaw, and

their use as fill material accordingly does not transform the

former quarry into a commercial dumping ground.12

12We do not intimate that the department is the arbiter of

the meaning of the term "commercial dumping ground" in the

town's bylaw for all purposes, or that the town is without

authority to impose more stringent standards. Instead, in the

circumstances of the present case, and in light of the

department's oversight of the composition of soils used in

quarry reclamation projects in the Commonwealth, and in the

absence of any definition of the terms "garbage, rubbish, the

deposit of demolition materials or other refuse" within the

definition of the term "commercial dumping ground" in the town's

bylaw, our conclusion applies the department's review of quarry

reclamation projects under the interim policy as an interpretive

aid to construe the bylaw provision. We note as well that this

is not a situation in which we are admonished to defer to an

interpretation by a local administrative body charged with

enforcement of the bylaw. See Wendy's Old Fashioned Hamburgers

of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374,

381 (2009). As we observed earlier, see note 7, supra, the case

is before us on requests for declaratory judgment; the parties

stipulated to the dismissal of an action that would have

presented the question of the propriety of the interpretation by

the zoning board (consistent with ours) that the proposed

project would not constitute a commercial dumping ground within

the meaning of the bylaw. Our view of the case, resting on

interpretation of the bylaw, obviates any need to address the

parties' competing arguments on whether § 277 operates to

preempt local regulation of quarry reclamation projects, or of

14

While the judge was concerned that in the aggregate,

substantial amounts of impermissible materials will be

deposited, we reiterate that the interim policy guards against a

collection that would create a "significant risk of harm to

health, safety, public welfare[,] or the environment."

Moreover, where the interim policy is specific to filling former

quarries, the department had to be aware that aggregate

quantities of deposited soils would be high, and the

department's review of the project accordingly will take total

amounts into consideration.

The board and the plaintiffs in the companion case

(residents), see note 7, supra, suggest that because MCGI will

be compensated for taking the soil deposits, the deposits must

constitute unwanted trash. "But one man's rubbish may be

another's treasure." 1 J.F. Campbell, Popular Tales of the West

Highlands, iii (Alexander Gardner new ed. 1890). There are many

examples in contemporary commerce of objects or materials that

are unnecessary in a particular location and require payment to

transport them to another, and yet are put to beneficial use at

another location. In the circumstances of the present case, it

is enough to observe that soil materials may need to be removed

from a site and developers may be willing to deposit them

projects in general involving soils used to fill land proposed

for development.

15

elsewhere for any number of reasons; it does not mean that the

soils are in essence contaminated, unwanted refuse. Indeed, in

the circumstances here, the department's policies should ensure

that only de minimis quantities of contaminants in soils used as

fill may be deposited on the site.

2. The reclamation project as a "use." The board and the

residents argue that even if the proposed project does not

constitute a commercial dumping ground, the project still is not

allowed because, regardless of the type of fill, the reclamation

project itself constitutes a "use" and that use is not an

allowed use under the bylaw. MCGI contends that the reclamation

project is not a "use," that there is no presently proposed use

of the property because the quarry is not active or licensed,

and that there is no definitive future use; in MCGI's view, the

project is "a process that must necessarily precede a future

'use' and does not itself constitute a 'use' of land within the

[b]ylaw." MCGI suggests that the proposed project is merely

"site work" in anticipation of a future use and does not

constitute a use itself.

Having concluded that the project does constitute a

"commercial dumping ground," the judge declined to address these

arguments. We observe that in analogous circumstances involving

the question of what constitutes an incidental use, the Supreme

Judicial Court stated that "[d]etermining whether an activity is

16

an 'incidental' use is a fact-dependent inquiry, which both

compares the net effect of the incidental use to that of the

primary use and evaluates the reasonableness of the relationship

between the incidental and the permissible primary uses." Henry

v. Board of Appeals of Dunstable, 418 Mass. 841, 844 (1994).

We, therefore, remand the case for consideration of these issues

by the judge in the first instance. See Merrimack College v.

KPMG LLP, 480 Mass. 614, 629 (2018).

We note that our appellate cases have considered whether

large earth removal projects constitute an "accessory use"

related to the existing or planned future use of the property.

See Henry, 418 Mass. at 845 ("We conclude that the net effect of

the volume of earth to be removed, the duration of the project,

and the scope of the removal project are inconsistent with the

character of the existing and intended agricultural uses"); Old

Colony Council-Boy Scouts of Am. v. Zoning Bd. of Appeals of

Plymouth, 31 Mass. App. Ct. 46, 47-49 (1991) (two and one-half

year earth removal project to create cranberry bog not

incidental to construction and maintenance of cranberry bog).

While they consider earth removal projects, as contrasted with a

filling project as in the present case, those cases are

instructive.

Here, the 1985 special permit, see note 3, supra, called

for storing removed topsoil on the site and the bylaw then in

17

effect provided that "as soon as possible thereafter [following

excavation], ground levels and grades shall be established in

accordance with the specifications set forth in the special

permit." It is unclear on the present record whether the quarry

operators complied with the bylaw or the special permit, and in

any event, that special permit expired by its terms after three

years and was not renewed.13 It may well be that for this or

other reasons, some level of reclamation may be considered

necessary "site work" without constituting a separate and

independent "use." We note, however, that the record suggests

that the average elevation of the site before quarrying began

was approximately 200 feet above sea level, and that MCGI

proposes to create a flat plateau of fourteen to seventeen acres

at an elevation of 299.5 feet. Although MCGI has stated that

the purpose of the project is "to improve current topographic

conditions by restoring elevations to pre-quarrying conditions,

install a sustainable vegetative cover[,] and prepare the

property for future development," in fact, the filling it

proposes to conduct will bring the site to a much higher

elevation than the prequarrying elevation, and it has not

attempted to justify the proposed elevation as necessary for any

general or specific use.

13A subsequent special permit, issued in 1991, was revoked

in 1992.

18

Conclusion. The judgment of the Land Court entered August

1, 2022, is vacated. The case is remanded for further

proceedings on the use issue consistent with this opinion and

for the entry of a declaration that MCGI's proposed project, if

conducted so that only de minimis quantities of harmful

materials are deposited, would not constitute a commercial

dumping ground as that term is used in the bylaw.14

So ordered.

14 The board's request for costs is denied.