A Reminder that Zoning Bylaws and Ordinances Must be Carefully Written

A company proposed to reclaim a former gravel pit by filling it with soil and other materials over a 7 to 9 year period. The Pepperell Zoning Bylaw prohibits a “commercial dumping ground” in all zoning districts, defined as “a disposal site for garbage, rubbish, the deposit of demolition materials or other refuse . . ..” The building inspector said that the proposal constituted a commercial dumping ground, the Zoning Board of Appeals disagreed, and the Board of Selectmen and abutters sued. Board of Selectmen of Pepperell v. Zoning Bd. of Appeals of Pepperell, No. 22-P-1168 (April 12, 2024).  

The company relied upon Section 277 of Chapter 165 of the Acts of 2014, which directed MassDEP to adopt regulations for determining “the suitability of soil used as fill material for the reclamation of quarries, sand pits, and gravel pits.” MassDEP did so by adopting an interim policy that requires soil accepted for such purposes to “contain no more than de minimis quantities of Solid Waste.” The Court stated that the purpose of Section 277 was to ensure that reclaimed gravel pits would not be used as commercial dumping grounds. If MassDEP approved the fill material under the interim policy (a matter on which the Appeals Court did not opine), then the fill materials would not constitute “garbage” or “refuse” and the project would not be a commercial dumping ground. In a footnote, the Court was careful to explain that its conclusion that the proposed use did not constitute a commercial dumping ground was based on the defined terms found in the Pepperell zoning bylaw, and that the town retained authority to impose more stringent standards through zoning.