Environmental – Earth removal bylaw – ‘Major purpose’

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Where plaintiffs filed a complaint under G.L.c. 214, §7A, seeking to enjoin the defendants from violating the town of Carver’s earth removal bylaw, a judge’s decision to dismiss the complaint should be vacated because the “major purpose” of the earth removal bylaw is to protect against damage to the environment, as that term is defined in §7A.

“General Laws c. 214, §7A, provides a claim for any ten Massachusetts residents to obtain an injunction against a person who is then causing, or is about to cause, ‘damage to the environment’ — provided that the environmental damage ‘constitutes a violation of a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment’ (emphasis added). The plaintiffs, ten residents and a Massachusetts corporation, invoked c. 214, §7A, seeking to enjoin defendants A.D. Makepeace Company and its subsidiary Read Custom Soils LLC (collectively, Makepeace) from continuing what the plaintiffs describe as ‘commercial mining operations’ at six sites in the town of Carver. The gist of the plaintiffs’ complaint is that Makepeace has been unlawfully removing earth from these sites for over a decade, under the guise of building cranberry bogs (or solar farms); that Makepeace has done so either in violation of permits issued by the defendant earth removal committee of the town of Carver (ERC), or without any permits at all; and that these earth removal operations have caused and continue to cause significant damage to the Commonwealth’s natural resources and to the environment.

“A Superior Court judge dismissed the plaintiffs’ complaint. As to the c. 214, §7A, claim, the judge ruled that the statute did not apply because, among other reasons, the plaintiffs’ claim was based on alleged violations of Carver’s earth removal bylaw, yet ‘the major purpose’ of the bylaw was not to ‘prevent or minimize damage to the environment.’ The judge also dismissed the plaintiffs’ other claims, including a mandamus claim seeking to require the ERC to take certain enforcement actions, as well as a purported claim under G.L.c. 40, §21(17).

“As to the c. 214, §7A, claim, we vacate the dismissal. In our view the ‘major purpose’ of the earth removal bylaw is to protect against damage to the environment, as that term is defined in §7A. Land — earth — is a critical natural resource, and Carver regulates earth removal activity by bylaw to protect the use of that natural resource and to guard against the environmental effects of such uses. Moreover, the systematic stripping of land from a substantial area can easily qualify as ‘damage to the environment.’ Nor do we conclude (at this early stage in the proceedings) that the plaintiffs’ suit is time barred. The c. 214, §7A, claim against Makepeace accordingly will go forward. As discussed below, the remainder of the plaintiffs’ claims were properly dismissed.”

Currence v. A.D. Makepeace Company (Lawyers Weekly No. 11-065-25) (27 pages) (Englander, J.) A motion to dismiss was heard by Michael A. Cahillane, J., and a motion for reconsideration was considered by him. Margaret E. Sheehan for the plaintiffs; Michael R. Pontrelli for A.D. Makepeace Company and another; Amy E. Kwesell for earth removal committee of the town of Carver (Docket No. 24-P-666) (Sept. 19, 2025).

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