Morse Brothers, Inc. v. Town of Halifax
(Massachusetts Superior Court for Plymouth County)
October 10, 2024
DOCKET SUMMARY
In this case, pending in Massachusetts Superior Court, NELF has filed a motion for leave to file its proposed memorandum of law in support of Morse Brothers, Inc., a commercial cranberry grower in Massachusetts. This case pits the statutorily protected property rights of a Massachusetts agricultural landowner against a municipality’s overreaching exercise of its local police powers. The primary issue is whether a municipality may exercise its nonzoning power to regulate earth removal, under G. L. c. 40, § 21(17), in disregard of a property owner’s statutorily protected right to use its land for agricultural purposes, under the Dover Amendment to the Massachusetts Zoning Enabling Act, G. L. c. 40A, § 3 (1st ¶). Section 21(17) of c. 40 allows a municipality to “make such ordinances and by-laws, not repugnant to law, . . . [f]or prohibiting or regulating the removal of soil, loam, sand or gravel from land not in public use.” Id. (emphasis added). The Dover Amendment, in turn, provides that “[n]o zoning ordinance or by-law shall . . . prohibit, unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture.”
For over two centuries, and in this case, commercial cranberry farmers in Massachusetts have depended upon the use of sand to create, maintain, and revive their cranberry bogs. As in this case, cranberry growers often obtain the sand by removing it from the soil on their own land, and they then apply it to their cranberry bogs in varying degrees of thickness, depending on the specific agricultural purpose of the application. This subsidiary use of the cranberry farmer’s land to harvest sand is therefore essential to the viable cultivation of cranberries.
The plaintiff, Morse Brothers, Inc., owns cranberry farms in Halifax, Massachusetts, and in neighboring towns. Morse Brothers has, for many years, extracted sand from its Halifax farm to transport to its other cranberry farms for cultivating cranberries. In 2023, for the first time, the town, purportedly acting under its earth removal bylaw, required Morse Brothers to obtain a permit to remove approximately 20,000 cubic yards of sand from its Halifax farm and to transport the sand to its other cranberry farms. The town denied Morse Brothers’ written request that its sand removal should be exempt from the permit requirement because it was a statutorily protected land use under the Dover Amendment. The town issued the permit but imposed various onerous conditions, such as restrictions on the permissible weeks, days and times of day when the plaintiff could remove and transport the sand, limits on the daily trips for transporting the sand, and special driving restrictions that far exceeded the town’s rules of the road.
Morse Brothers sued in Superior Court, challenging the validity of the permit requirement itself and also arguing that the permit’s conditions practically prevented it from growing cranberries, each in violation of the Dover Amendment. The court denied Morse Brothers’ motion for a preliminary injunction, and Morse Brothers now moves for judgment on the pleadings.
In its proposed memorandum of law, NELF argues that it is “repugnant to law,” under c. 40, § 21(17), for the town to require an earth removal permit, and to impose several onerous conditions on the issuance of that permit, when Morse Brothers, Inc.’s earth removal is essential to its agricultural land use, which the Dover Amendment protects from any prohibition, unreasonable regulation, or special permit. See Larason v. Katz, 1991 WL 11258845, at *1 (Mass. Land Ct. 1991) (town could not, in exercise of earth removal powers under c. 40, § 21(17), require cranberry grower to obtain license for earth removal that was necessary for cranberry cultivation, because license would constitute “special permit” forbidden under Dover Amendment). See also Newbury Junior Coll. v. Town of Brookline, 19 Mass. App. Ct. 197, 206 (1985) ( “[A] municipality may not, through the exercise of its [statutory police] power . . . , undo the Dover Amendment.”) (emphasis added); McNeil v. Comm’r of Correction, 417 Mass. 818, 822 (1994) (“[W]here two or more statutes relate to the same subject matter, they should be construed together so as to constitute a harmonious whole consistent with the legislative purpose.”) (cleaned up) (emphasis added).
Morse Brothers’ earth removal is an agricultural land use as of right under the Dover Amendment because it is a necessary step in the commercial cultivation of cranberries, and the Dover Amendment protects such incidental land uses. Since Morse Brothers’ earth removal is a land use as of right, the town has no discretion and must permit the activity to proceed, subject only to reasonable regulation under the Dover Amendment. As a result, the town has wrongfully required a “special permit,” which is statutorily designed to accommodate uses not permitted as of right.
The town has also violated the Dover Amendment by imposing several onerous permit conditions that amount to a de facto prohibition, or at the very least, an unreasonable regulation of Morse Brothers’ protected land use. The permit conditions practically prevent Morse Brothers from undertaking the necessary maintenance and treatment of its cranberry bogs, in a seasonally timely manner.
In sum, the Town added insult to injury when it subjected Morse Brothers to an unlawful permit requirement and then imposed numerous permit conditions that practically prevent Morse Brothers from succeeding in its commercial cultivation of cranberries.