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AUGUST TODA & others [Note 1] vs. BOARD OF APPEALS OF MANCHESTER.
Present: BROWN, CUTTER, & SMITH, JJ.
The case was heard by Tuttle, J., on a motion for summary judgment.
James T. Ronan (Mary P. Harrington with him) for August Toda & others.
Ellen Flatley for Board of Appeals of Manchester.
Loyd M. Starrett (Terry S. Kogan with him) for Masconomo Realty Trust.
decision of the board to the Superior Court pursuant to G. L. c. 40A, Section 17. The appeal was dismissed by summary judgment on the ground that the board had no jurisdiction over earth removal operations in the town. [Note 2] We conclude that, regardless of the scope of the board's jurisdiction over earth removal, the operations in question extend beyond earth removal and into an area within the jurisdiction of the board. We therefore reverse the judgment and direct that summary judgment be entered for the plaintiffs.
permits but went on to put its imprimatur on Bass River's project in the form of the grant of a special permit to prepare the site for a use permitted under the zoning by-law.
"It has been and is the consensus of this Board that any commercial earth removal operations, such as this, requires approval from the Manchester Board of Appeals whereas this type activity is not a use allowed in a Limited Commercial District as specified under the Manchester Zoning By-Law. You have obtained a variance from the Zoning Board of Appeals to seek an Earth Removal Permit from the Board of Selectmen."
Both parties are agreed that no variance was ever granted; the town claims that the reference to a variance was simply the product of an administrative error. The earth removal permit has been renewed annually and the erroneous reference to the granting of a variance was deleted in 1983. The town currently contends that earth removal operations are under the exclusive jurisdiction of the selectmen and that no variance or other permission from the board of appeals need be obtained.
Earth removal operations were begun on the site in the summer of 1980 by a successor to Bass River known as Mascanomo Realty Trust (Mascanomo). It is uncontested that these operations include the excavation of rock through blasting and the crushing, sorting, and commercial sale of rock on the premises.
Municipalities may regulate earth removal through their zoning ordinances or by-laws. See Glacier Sand & Stone Co. v. Board of Appeals of Westwood, 362 Mass. 239 , 242 (1972). Since 1949, municipalities have also had the option of regulating earth removal through a general by-law or ordinance. See G. L. c. 40, Section 21(17), inserted by St. 1949, c. 98, and most recently amended by St. 1973, c. 317. [Note 5] See generally Byrne v.
Middleborough, 364 Mass. 331 , 333-334 (1973); Beard v. Salisbury, 378 Mass. 435 , 438-439 (1979). These two modes of regulation need not be mutually exclusive. Thus, a zoning by-law may confine earth removal to specified zoning districts, while a separate earth removal by-law may govern how earth removal is carried out within those districts.
permanent building would have to comply with the zoning by-law, no matter that the building is to be associated with, or accessory to, an earth removal operation. The use of Mascanomo's property has been expanded beyond mere earth removal to include the processing of rock and the commercial sale of that rock. We conclude that the scope and nature of such a quarrying operation extends well beyond "earth removal" as that term is contemplated in art. XII.
In Butler v. East Bridgewater, 330 Mass. 33 , 38 (1953), it was held that the intent of the earth removal enabling act "was to authorize towns to control the entire process of severing the material and conveying it from the premises. . . ." The crushing of stone is not, however, a necessary element of the earth removal process. [Note 9] Compare First Crestwood Corp. v. Building Inspector of Middleton, 3 Mass. App. Ct. 234 , 236 (1975) (crushing of stone held an illegal expansion of the preexisting, nonconforming use of stone excavation and removal). Cf. Wilson v. Pencader Corp., 57 Del. 290, 295-298 (1964) (holding that a permitted use of excavation of rock for commercial purposes did not include the crushing of rock, although rock crushing might be allowed as an accessory use). Such an expansion of the use beyond earth removal must comply with the zoning by-law and is allowable only under a use variance. Contrast Goodwin v. Selectmen of Hopkinton, 358 Mass. at 167 (no processing of earth materials done on the premises).
and a new summary judgment for the plaintiffs is to be entered remanding the case to the board of appeals for a decision on the merits.
[Note 1] James T. Ronan, Leroy Thomas, Gertrude Thomas, James Osborne, Joan Osborne, William McCarthy and Donna McCarthy.
[Note 2] The plaintiffs also filed a motion for summary judgment, which, by implication, was denied.
[Note 3] The selectmen can only grant a permit if they determine that the earth removal operation "will not be contrary to the best interests of the Town." That by-law includes enumerated criteria which, if met, establish that the operation fails to meet this standard. For example, "removal of earth material shall be considered contrary to the best interests of the Town which . . . [w]ill produce noise, dust or other effects observable at the lot lines in amounts seriously objectionable or detrimental to the normal use of adjacent property." Article XII, Section 2(a)(2).
[Note 4] The property is in a "limited commercial" district; earth removal is not a listed permitted use in any zoning district.
[Note 5] This enabling legislation was passed in order to allow municipalities to regulate earth removal even if they had not adopted comprehensive zoning schemes. Byrne v. Middleborough, 364 Mass. 331 , 333-334 (1973). 1949 House Doc. No. 117, at 3.
[Note 6] We note in passing that, while the earth removal by-law was explicitly drafted to govern the extraction of rock, the enabling legislation speaks only in terms of "the removal of soil, loam, sand or gravel." G. L. c. 40, Section 21(17). Neither party has raised any question whether the rock excavation aspects of art. XII rest on sufficient authority in the enabling act or alternatively in the Home Rule Amendment (art. 2, Section 6, of the Amendments to the Constitution of the Commonwealth, as amended by art. 89 of the Amendments). We find no occasion to address any such question here.
[Note 7] On this record, we need not decide whether any land owner desiring to engage in earth removal must, in addition to obtaining a permit under the comprehensive earth removal by-law, also obtain a use variance because earth removal is not a permitted use in any district. The by-law perhaps may be clarified before any such decision is necessary.
[Note 8] Article XII, Section 4(f), states: "No permit issued hereunder shall authorize any activity which is in violation of any Zoning By-law of the Town." Thus, art. XII was not intended to supplant zoning simply because a primary use of the property involves earth removal.
Historically, earth removal regulation was initiated to curb the effects of the uncontrolled stripping away of topsoil and other earth materials. See Burlington v. Dunn, 318 Mass. 216 , 221, cert. denied, 326 U.S. 739 (1945); Butler v. East Bridgewater, 330 Mass. 33 , 36 (1953); Beard v. Salisbury, 378 Mass. 435 , 439-440 (1979); Dawson, Earth Removal and Environmental Protection, 3 Envtl. Aff. 166 (1974). Thus, such regulation, like that of wetlands, was addressed to a particular environmental problem and was not meant to provide a general land use control mechanism. See Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7 , 13-14 (1979).
[Note 9] We need not reach the question whether the sale of the crushed rock on the premises itself violates the zoning by-law.

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On October 27, 2014, the City Council of the City of Culver City adopted Ordinance No. 2014-006, amending Chapter 9.11 of the Culver City Municipal Code (CCMC), Smoking Regulations, to add a new Subchapter 9.11.200, et seq., to prohibit smoking in multi-unit housing.
According to the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, nonsmokers who live in multi-unit dwellings can be exposed to neighbors’ secondhand smoke through doorways, cracks in walls, electrical lines, plumbing and ventilation systems.
The City Council’s intent in adopting the Ordinance is to control exposure to secondhand smoke by prohibiting smoking in all areas of multi-unit housing including, but not limited to, common areas and individual units, patios and balconies. Qualified designated smoking areas established on multi-unit housing property are excluded from the smoking ban (pursuant to the criteria set forth in CCMC § 9.11.215.B).
Click here to view a copy of Ordinance No. 2014-006.
October 27, 2014 – Ordinance adopted by the City Council.
The smoking provisions of the Ordinance must be enforced through private legal action as set forth in CCMC §§ 9.11.255 and 9.11.260. The City will provide some limited enforcement for certain provisions of the Ordinance (i.e. signage requirements, designated smoking area requirements, etc.), as set forth in CCMC § 9.11.255.B.
In conjunction with limiting the enforcement of smoking violations to private parties, the City Council included a directive provision in the Ordinance to require the City Manager to review the effectiveness of the private and limited City enforcement of the Ordinance and provide an informational memorandum to the City Council. Such review shall occur 12 months after full implementation of the Ordinance (on or after May 26, 2017).
If you are a landlord or HOA Board of a multi-unit complex and are interested in hosting a Community Meeting for your residents concerning the Multi-Unit Housing Smoking Ban or would like to request an on-site consultation, please contact the Enforcement Services Division at 310-253-5940 or e-mail a request.
Please check back to this webpage for more information on the Community Outreach and Education Program as it becomes available.
For inquiries, please contact us via email or submit a service request.
If you would like to receive public notification regarding future meetings or other announcements relating to the implementation of the Ordinance, please click here to sign up for the City’s email notification system for the Topic “Smoking – Multi-Unit Housing”.
Is the use of e-cigarettes permitted in areas where smoking is prohibited? Yes. The use of electronic smoking devices (i.e. e-cigarettes) is permitted in the units, including individual balconies and patios, in common areas and throughout the property. The definition of “smoke” as discussed in these FAQs, above, excludes vapors from electronic smoking devices.
Is the use of medical marijuana (that is smoked) permitted in areas where smoking is prohibited? No. The smoking of medical marijuana is prohibited in all areas smoking is prohibited, including inside units, on individual balconies and patios, in common areas and smoke-free buffer zones. State law [Health and Safety Code § 11362.79(a)] provides that nothing in the Compassionate Care Act of 1996 (the Act which allows the use of medical marijuana) authorizes the use of medical marijuana in any place where smoking is prohibited by law. The City’s Ordinance prohibits smoking in multi-unit housing; therefore, the smoking of medical marijuana is also prohibited. Further, the federal Fair Housing Act reasonable accommodation provisions exclude the use of a “controlled substance” from protection and under federal law marijuana is still considered a controlled substance.
Does a landlord or HOA Board have to post any signs? Yes. If a landlord or HOA Board establishes a designated smoking area, then such area must be clearly identified by conspicuous signs. In addition, “No Smoking” signs must be posted in sufficient numbers and locations to make common areas where smoking is prohibited obvious to a reasonable person. Sign requirements are set forth in CCMC § 9.11.215.D or click here to obtain a sample sign. You may also pick up a sample sign at City Hall-Enforcement Services Division, 2nd Floor, 9770 Culver Blvd, Culver City. Failure to post the required signage could lead to a citation.
How do I report a smoking violation? Smoking violations may be reported to your landlord or HOA Board, as smoking is a violation of lease provisions and HOA rules. Your landlord or HOA Board, however, is not responsible for enforcement of the CCMC (see below FAQ). Enforcement of the smoking prohibition must be done through a private civil action (see below FAQ).
Does a landlord or HOA Board have to enforce the smoking laws? No. Landlords and HOA Boards are not required to enforce smoking violations of their tenants/homeowners, visitors or other invitees. They are not subject to additional liability for smoking violations that occur, as long as they have complied with the requirements to provide proper notification to tenants/homeowners and to include the required provisions in each tenant’s lease or in the HOA rules, as applicable. Landlords and HOA Boards may be subject to other liability under landlord-tenant or HOA law for enforcing lease provisions or HOA rules, but that is not within the purview of the City.
Does the City enforce the Ordinance? City enforcement of the Ordinance is limited to provisions relating to required signage, requirements for designated smoking areas, requirements to provide notice to tenants and homeowners regarding the smoking regulations and requirements to amend leases and HOA rules and regulations. City-enforced violations may be prosecuted as an infraction or misdemeanor and are subject to criminal penalties of up to $1000 at the discretion of the City Attorney. City-enforced violations are also subject to administrative citation resulting in fines of up to $500 per violation; and civil action with civil fines of up to $1000 per violation. (CCMC § 9.11.255) The City does not enforce smoking violations in multi-unit housing, but has established a process for private enforcement, as discussed in these FAQs and on this webpage below.
How is the smoking ban enforced? A comprehensive provision for private enforcement of smoking violations through civil remedies is included in the CCMC. Any person, including a legal entity or organization, may bring a civil action to enforce a smoking violation. The process for such enforcement action is set forth in CCMC § 9.11.260. For more information on the rules and procedures for filing a civil action in court, please visit the website for The Superior Court of California, County of Los Angeles at https://www.lacourt.org/.

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