by Scott Pitman and Michael Pill

Published in Massachusetts Lawyers Weekly: May 16th, 2013

Growing up in Iowa, and now living in the fertile Pioneer Valley of western Massachusetts, co-author Michael Pill appreciates the American Farmland Trust bumper sticker: “No Farms No Food.”

John Gerber, professor of sustainable food and farming at the University of Massachusetts-Amherst, says one reason he has a big garden, raises chickens, collects honey from his backyard bee hive, and harvests greens throughout the winter in an unheated greenhouse is “the reality of our current global situation, which in my mind includes the ‘perfect storm’ of climate change, peak oil and economic downturn.”  Gerber believes there is a need for more community and family-level self-sufficiency in the face of “this global crisis.”

Most of us depend on supermarkets with only a few days’ inventory replenished by petroleum-fueled trucks that deliver food from hundreds or even thousands of miles away. It is a complex, fragile system that we take for granted.

So who’s right in attorney Gerald Nissenbaum’s ongoing legal battle with Ingaldsby Farm, next door to his home in Boxford? The latest chapter in the conflict was summarized in Lawyers Weekly (“Lawyer loses latest round in bout with neighboring farm,” April 1).

To survive in an age of large-scale industrial food production, the family farm at issue advertises “[f]resh produce, frozen fresh foods and baked goods. Kids can feed rabbits, goats, pigs, sheep and chickens, play on a large wooden train, watch a puppet show, or just play in the large sand box.”

The Boxford battle turns on the limits of the protection afforded to farm stands under G.L.c. 40A, §3, which grants a zoning exemption (numbers in brackets added to aid in parsing statutory language) to:

“[F]acilities for the sale of produce, wine and dairy products, provided that either

[1] [a] during the months of June, July, August and September of each year or

[b] during the harvest season of the primary crop raised on land of the owner or lessee,

25 per cent of such products for sale, based on either gross sales dollars or volume have been produced by the owner or lessee of the land on which the facility is located, or

[2] [a] at least 25 per cent of such products for sale, based on either gross annual sales or annual volume, have been produced by the owner or lessee of the land on which the facility is located and

[b] at least an additional 50 per cent of such products for sale, based upon either gross annual sales or annual volume, have been produced in Massachusetts on land other than that on which the facility is located, used for the primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture, whether by the owner or lessee of the land on which the facility is located or by another … .”

Chapter 1128, §1A defines “farming,” “agriculture” and “farmer” as follows (numbers in brackets added to aid in parsing statutory language):

“‘Farming’ or ‘agriculture’ shall include farming in all of its branches and

[1] the cultivation and tillage of the soil,

[2] dairying,

[3] the production, cultivation, growing and harvesting of any agricultural, aquacultural, floricultural or horticultural commodities,

[4] the growing and harvesting of forest products upon forest land,

[5] the raising of livestock including horses,

[6] the keeping of horses as a commercial enterprise,

[7] the keeping and raising of poultry, swine, cattle and other domesticated animals used for food purposes, bees, fur-bearing animals, and

[8] any forestry or lumbering operations, performed by a farmer, who is hereby defined as one engaged in

[a] agriculture or farming as herein defined, or

[b] on a farm as an incident to or in conjunction with such farming operations, including preparations for market, delivery to storage or to market or to carriers for transportation to market.”

Based on that definition, G.L.c. 40A, §3 provides that municipalities cannot through zoning “prohibit, unreasonably regulate, or require a special permit for the use of land … for the primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture … .”

Where agriculture is permitted by local zoning, this statutory exemption applies to parcels of any size. In areas “not zoned for agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture,” the exemption applies “to parcels of 5 acres or more or to parcels 2 acres or more if the sale of products produced from the agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture use on the parcel annually generates at least $1,000 per acre based on gross sales dollars … .”

The Ingaldsby Farm owners chose pumpkins as their path to farm-stand exemption heaven (see [1][b] in G.L.c. 40A, §3 above), while neighbor Nissenbaum contends that apples should be deemed the primary crop, with rather different consequences.

The multi-year fight continues. Given the foregoing and the following, the ground is fertile for battle. Oranges, anyone?

A raft of other legislative and regulatory provisions make challenging farms and farm stands a daunting proposition. For example, G.L.c. 111 includes provisions protecting farming operations from local boards of health, beginning with the following definition in G.L.c. 111, §1:

“‘Farming’ or ‘agriculture,’ farming in all of its branches and cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural, aquacultural, floricultural or horticultural commodities, the growing and harvesting of forest products upon forest land, the raising of livestock including horses, the keeping of horses as a commercial enterprise, the keeping and raising of poultry, swine, cattle and other domesticated animals used for food purposes, bees, fur-bearing animals, and any practices, including any forestry or lumbering operations, performed by a farmer, who is hereby defined as one engaged in agricultural of farming as herein defined, or on a farm as an incident to or in conjunction with such farming operations, including preparations for market, delivery to storage or to market or to carriers for transportation to market.”

Chapter 111, §125A includes a provision “that the odor from the normal maintenance of livestock or the spreading of manure upon agricultural and horticultural or farming lands, or noise from livestock or farm equipment used in normal, generally acceptable farming procedures or from plowing or cultivation operations upon agricultural and horticultural or farming lands shall not be deemed to constitute a nuisance.”

Legislation providing for abatement of private nuisances grants immunity to farming operations (as defined by G.L.c. 128, §1A) in these words:

“No action in nuisance may be maintained against any person or entity resulting from the operation of a farm or any ancillary or related activities thereof, if said operation is an ordinary aspect of said farming operation or ancillary or related activity; provided, however, that said farm shall have been in operation for more than one year. This section shall not apply if the nuisance is determined to exist as the result of negligent conduct or actions inconsistent with generally accepted agricultural practices.”

If a local board of health nevertheless determines under G.L.c. 111, §125A that “a farm or the operation thereof constitutes a nuisance,” that statute requires written notice which can be appealed within 10 days to the local District Court. If an appeal is filed, “the operation of said order shall be suspended, pending the order of the court.”

If that weren’t enough, agricultural activities are also exempt from the Massachusetts Wetlands Protection Act and Regulations (G.L.c. 131, §40 and 310 C.M.R. 10.00). The definition of “Agriculture” in 310 C.M.R. 10.04 authorizes and defines “[n]ormal maintenance of land in agricultural use” that does not require an order of conditions from the local conservation commission.

Under 310 C.M.R. 10.04, “land in agricultural use” within a wetland or buffer zone must be “primarily and presently used in producing or raising one of more of the following agricultural commodities for commercial purposes”:

“1. animals, including but not limited to livestock, poultry, and bees;

1. 2. fruits, vegetables, berries, nuts, maple sap and other foods for human consumption;
2. 3. feed, seed, forage, tobacco, flowers, sod, nursery or greenhouse products, and ornamental plants or shrubs; and
3. 4. forest products on land maintained in forest use … .”

The exemption is lost if agricultural use lapses for more than “five consecutive years,” unless the inactivity is under a U.S. Department of Agriculture contract or the land is used for “forestry purposes.” Id.

That becomes an issue when land allowed to lie fallow for more than five years is brought back into agricultural production. If hay has been cut to keep fields from returning to forest, one can argue to the local conservation commission that the haying constitutes “agricultural use.”

The wetlands exemption for agricultural use is reviewed in detail in “Farming in Wetland Resources Areas: A Guide to Agriculture and the Massachusetts Wetlands Protection Act (January 1996) (mass.gov/dep/water/laws/farman.pdf) by the state departments of Environmental Management (now Conservation & Natural Resources), Environmental Protection, and Food and Agriculture (now Agricultural Resources).

The Massachusetts Endangered Species Act grants similar protection, defining “land in agricultural use,” G.L.c. 131A, §1, to include the following activities:

“[R]aising animals … for the purpose of selling such animals or a product derived from such animals in the regular course of business … raising fruits, vegetables, berries, nuts and other foods for human consumption, feed for animals, tobacco, flowers, sod, trees, nursery or greenhouse products and ornamental plants and shrubs for the purpose of selling such products in the regular course of business; or when primarily and directly used in raising forest products … .”

Definitions and exemptions in the Endangered Species Act Regulations, 321 C.M.R. 10.02 and 10.14(1), are similar to those in the Wetlands Protection Act Regulations, 310 C.M.R. 10.04.

The bottom line is that attorney Nissenbaum, and others who may not want a farm next door, have an uphill battle in the face of the extensive legal protection for farming in Massachusetts. Perhaps next time we won’t get to compare apples to pumpkins. We’ll miss that.

Scott Pitman practices at the Law Offices of William V. Hovey in Boston. Michael Pill is a lawyer at Green, Miles, Lipton in Northampton.

Complete URL: http://masslawyersweekly.com/2013/05/16/old-macdonald-had-a-farm-and-then-the-neighbors-sued/

Reprinted with permission of the authors.