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2051 MAIN STREET (4)
r ROD Ma0in S4- 3 - 3 :3 0 3 L2051 ¶9L0 S000 00.0T 200L - Town of Barnstable 1 Building Division cps!' vs, 200 Main St. r I f a _, t 01 Hyannis, MA 02601 ! ��.r F ,� n ,� rr i �sr4i—(7-A U 303 I-�-�-,----)/ityAl t 1I t� '1/, .i P�i-a-•- -, i rosre icF AMOUNT '' L3NI1 031100 ltl a10J.SS380ay.Nkinl3ki 3H130 ' ! 0000 SiI g( - ---- __ 00081919-13 �`u4"• ❑ACem r rr• +e ° ct.Nor Mown ,•. «: .E. r/.siren • ❑No Such dr• Vacant S�reetONumber Dr. : : +•ictor Cillis Not Deliverable As Dlf ible 0Main St: ] `� Unable To Forward O No Mail RF _ O Insufficient Closed o pG a W. r , t.:. P A 02668 i sentAddress S--./6 •- -3 7Moved,Left No Add re� or setter Address Rift 11-1-7d*ed0 Refused O Postage Due ,��„ - fir• \ ,.\ , ._ - _ _ .. _ _— .. i / SEN ERI.COMPL<ETEJHIS SECTION . 'COM LP ETE THIS SECTION ON,DELIVERY� *� f q -_; :r45'tia.. .a .a,. e`_.'.' A..`�dtl,.gs, . , .. ,.... : ._. _y, + -._r'.'? n. ,... .�^�,... . _. . .' .._.w :',..1; - I sil Complete items 1,2,and 3.Also complete A. Signature item 4 if Restricted Delivery is desired. 0 Agent a Print your name and address on the reverse , X 0 Addressee so that we can return the card to you. B. Received by(Printed Name) C. Date of Delivery a Attach this card to the back of the mailpiece, or on the front if space permits. D. Is delivery address different from item 1? 0 Yes 1. Article Addressed to: /1 If YES,enter delivery address below: ❑ No 112• it A�.s- Vtc_ro�U1-1.1 S 02,05-1 P11-1 ST- ,i Bke_OSTIA-ELEIM144E► Certified a- Express Mail❑ Registered �¥3eturn Receipt for Merchandise 0 Insured Mail 0 C.O.D. 4. Restricted Delivery?(Extra Fee) 0 Yes 2. Article Number i 7002 1000 0005 0781 8027 (Transfer from service label) Fo is : G .• II . . . e. 102595-02-M-1540 a T Town of Barnstable ' 141,, 9. Regulatory Services AAi Thomas F.Geiler,Director $ Building Division ?fp Milt4 Tom Perry,Building Commissioner 200 Main Street, Hyannis,MA 02601 Office: 508-862-4038 Fax: 508-790-6230 July 29,2003 Dr.&Mrs.Victor Cillis 2051 Main St. W.Barnstable,MA 02668 Dear Dr.&Mrs. Cillis: This is a follow-up to the letter sent to you from this office dated June 17,2003. In that letter you were asked to remove the light poles and rebuild the stone wall at the rear of your property. To date this office has seen no activity in regards to rectifying these matters. Action'must be taken by August 8,2003 to resolve these issues. If no action has been taken by this time we will commence with daily fmes in the amount of$100.00. Each issue shall be subject to individual fmes and each day will be a separate offense. Thank you for your anticipated cooperation. Sincerely, Tom Perry Building Commissioner TP/AW CERTIFIED MAIL 7002 1000 0005 0781 8027 • Town of Barnstable CERTIFIED MAIL r Building Division — 1f U'JPAIOSTAGE 367 Main Street HYANNIS.MR 02601 1111 Hyannis,MA 02601 MAY o.'01 UNITED STATES AMOUNT 1 I POSTAL SERVICE 0000 $3.71 7000 PO 0021 8281 3537 00053,17-01 `4 ,�f ,V: s-S� , St MOtice _ r b . ,,,j r 1' Bt m d v/ 4 r U ar.se*-: ' f air Street/R; fi.;..! ::f' �' ,. ,. _, .-r� 8 iv RETURil RECEIPT A ' . �<<. (sr REQUESTED ,. . ,,� :jti ti ,n" . li:�,,ala}a =, ,,,j�tll.. iii III II! Ii I:I!,ll I Ili:flI .. aa;tt. r i ia3 t.. I i 1 -,-....i •-••-,1 1 i'... i I ,, I I I I I I I 1, , I I II 1 I . ....,. . 41 I f PLACE STICKER QuiCi?CP ENVELOPE VD MIB RIGHT CP RETURN ADDRESS. F n I n A T rte.-sr-ram 8 8.88, 111.,2,-.-,•'t•--s'.'"...4181 --...---8.--8-.......,,...__ .., '4- .8. , . . 0.1HE, Town of Barnstable o • Regulatory Services g Y K00ilansTstnyThomas F.Geiler,Director 1639. D tit0 Building Division Elbert C Ulshoeffer,Jr. Building Commissioner 367 Main Street, Hyannis,MA 02601 Office: 508-862-4038 Fax: 508-790-6230 ORDER TO CEASE AND DESIST May 9,2001 • Victor and Brenda Cillis 2051 Main Street/Route 6A West Barnstable,MA 02668 Re: Dismantling stone walls Dear Dr. and Mrs.Cillis: It has recently come to the attention of this office that the walls that abut the Town cemetery are being scavenged for rocks to create a buffer line between the property that is on the other side of the common right of way. This must cease and desist immediately. As you are well aware,these walls are considered historic by the Old King's Highway Committee and the Historic Department of the Town of Barnstable. In any event,before any more work goes on with these walls you must,again to emphasize the point,obtain prior approval from the Old King's Highway.Committee. If you should have any questions,feel free to call this office at 508-862-4038. Sincerely, Thomas Perry Local Inspector cc. Pat Anderson,Director,Historic Preservation Old King's Highway Historic District Commission Certified Mail 7000 0520 002r 8281 3537. .R.R.R. q010509a dIou1? 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II i s' 411 MN Illir . , 1 11111111111.111W FROM :Scaroo Ca.f e FAX tin. :5nR-7,R 2nn f=oj,_,. 11 200A 11:25nri P4 Town of Barnstable „vss Regulatory Services 4 m,•r ut } Thomas F.Geiter,Director 'daa, rs Building Division ` poor F.UlTvlatten, Building Commissioner 367 Main Street,Hytuuris, MA 02601 • Office: 508-862-4038 Fax: 508-790-6230 November 21,2001 Dr. And Mrs. Victor Cillis 2051 Main Street--Route 6A W Barnstable, Ma 02668 Re: Zoning &Code violations Dear Dr. & Mrs. Cillis; A number of zoning and code violations have been brought to my attention concerning your property at 2051 Main Street. Mostly recently, you have advertised a vacancy for an apartment unit over the stables in violation of ordinance section 3-1A, Furthermore, I have also been informed that you have installed forty foot high Klieg lighting for the Illumination of the outdoor riding arena.This in in direct conflict with local zoning ordinance sections 4-7,6 and 3-1-1 (B)(i). It is my duty to advise you that not only is there no approval on file from the Old Kings highway Historic District committee as required under. CMR 972 but it is apparent that this work was done without both the benefit of licensed individuals and permits in accordance with C;MR 780, sections 110& III, In addition;you should be aware that the keeping, stabling and maintenance of horses are specifically addressed by our local zoning ordinance 3-1.1.(B)(b). Therefore, it will be necessary to vunffi.rrp and document the number of horses; corresponding stables and available landmass in order 10 assure compliance. I am informed that there is a discrepancy between what town records reflect and whet is actually on site. in conclusion, I respectfully remind you that this office bag previously advised you in writing that a Site Plan Review hearing was required prior to any site work resulting from the expansion or intensification of the riding academy and related commercial uses. I am aware that you have cons1Frent.ty ignored this directive. As I am newly appointed, I would like to take to this opportunity to inform you of-my resolve to rectify these issues fairly. It is imperative that you take immediate measures to peacefully and lawfully reconcile these violations, My staff is available to assist you in the expedition of these matters. in the event that you choose not cooperate, please be advised that I intend to pursue all logs! remedies at my disposal. It.is my sincere wish that this action will not be necessary. I anticipate your cooperation and look forward to meeting with you in the very near['atilt. Sincerely, Peter F. DiMatleo Building Commissioner Co RJvd 97-.F1�7_.98Z0i316 Et, :i.:0 S65T/60!TO .,xr.• Town of Barnstable Regulatory Services i > *Wm. Thomas F.Getter-,Director ?'ilk Building Division Peter F.Matter), Building Cornrrtissioner 367 Main Street,Hyannis, MA 02601 Office: 508-862-4038 Fax: 508-790-6230 November 21,2001 Dr.And Mrs. Victor Cillis 2051 Main Street--Route 6A W Barnstable, Ma 02668 Re: Zoning &Code violations Dear Dr. &Mrs. Cillis; A number of zoning and code violations have been brought to my attention concerning your property at 2051 Main Street. Mostly recently, you have advertised a vacancy for an apartment unit over the stables in violation of ordinance section 3-1,4, Furthermore, I have also been informed that you have installed forty foot high Klieg lighting for the illumination of the outdoor riding arena.This in in direct conflict with local zoning ordinance sections 4-7,6 and 3-1-1 (B) (i). It is my duty to advise you that not only is there no approval on file from the Old Kings Highway Historic District Committee as required under CMR 972 but it is apparent that this work was done without both the benefit of licensed individuals and permits in accordance with CMR 780, sections 110& 111, in addition,you should be aware that the keeping, stabling and maintenance of horses are specifically addressed by our local zoning ordinance 3-1.1 (B) (b). Therefore. it will be necessary to confirm and document the number of horses: corresponding stables and available landmass in order to assure compliance. I am informed that there is a discrepancy between what town records reflect and what is actually on site. In conclusion, I respectfully remind you that this office has previously advised you in writing that a Site Plan Review hearing was required prior to any site work resulting from the expansion or intensification of the riding academy and related commercial uses. I am aware that you have consistently ignored this directive. As I am newly appointed, I would like to take to this opportunity to inform you of my resolve to rectify these issues fairly. It is imperative that you take immediate measures to peacefully and lawfully reconcile these violations, My staff is available to assist yen in the expedition of these matters. In the event that you choose not cooperate,please be advised that I intend to pursue all legal remedies at my disposal. It is my sincere wish that this action will not bt necessary. I anticipate your cooperation and look forward to meeting with you in the very near future. Sincerely. Peter F. DiMatteo Building Commissioner F oF� The Town of 1I arnstab1e sniuvsrnie,639. - lb �0� Department of Health Safety and Environmental Services '�Fn +A Building Division 367 Main Street,Hyannis MA 02601 Office: 508-862-4038 Ralph Crossen Fax: 508-790-6230 Building Commissioner March 5, 1999 Julie Malloy Pepe and Hazard,P.C. 150 Federal Street Boston,MA 02110 Re: 2051 Main Street,West Barnstable,MA Dear Attorney Malloy: It is my opinion that the Oktober Farm,at 2051 Main Street in West Barnstable,has a right to an exempt use under the State Zoning Act 40a section 3 for the following: 1) the keeping of horses 2) the boarding of horses 3) the stabling of horses 4) the breeding of horses 5) the riding of horses as long as the riding is not for money and unrelated to the main operation. To clarify#4 above, if people who keep their horses there wish to ride them,that is allowable. If people who wish to buy a horse that is bred there want to ride it in order to learn how to ride before the purchase and they pay to do that,this too is allowable. If however,people come to ride and pay money but are not breeders,boarders or prospective buyers of bred stock,that is in my opinion,over the line and a commercial operation that requires a variance. Sincerely, Ralph M.Crossen Building Commissioner RMC/km g990305a 02/01/1999 11:50 5083628811 PAUL SKLAREW MD PAGE 01 The Town of }•:arnstabkk Der artment of I ealth Safety and Environmental Services -, 1 Building Division 367 Main Street,Hyannis MA 02601 Office: 508-862-4038 Ralph Crosson Fax: 508-790-6230 Building Commissioner January 28.199111 9 I` Mrs.Brenda Cillis 2051 Main Street West Barnstable,h' A 02668 Brenda: I am folio ►i tg up our mee• gs on January 19th and 21st,regarding the commercial venture on your property at 2011 Main Street. As I states o i those occasi• s,your property is in a residential zone(RF)and the operation of a business would req LiP e relief from t e Zoning Board of Appeals. If this offi e can be of any sistance in the ZBA process,please do not hesitate to contact us. It was my ,l jasure to have et you. Thank you in advance. Sincerely, ' � t, Richard Richard Stevens Building Inspector • RS:Ib g990125a F Catre bpQC1 Q ays at t o VICIODer It' arm By Brad Lynch on the other days, Friday's children the land and in the four-month-old white German shepherd who, like are the ones who have lost a parent, post and beam barn,in the animal pens Brenda,was born near Everett,Wash- Most days, the seven-acre spread, had a sibling terribly damaged,or con- and on the trails to ride. Sharers of ington, seems to owe his gentle man- which includes woods,pasture,a field tracted leukemia. these qualities are all the children who ners more to example of the Sultana for practice jumping,(even polo),sings Brenda Cillis, a 35-year-old health come to learn and play,from toddlers hens than the pushy goats. with the happy sounds of healthy kids professional,presides over the whole to early teens, including Brenda and One of the miniature horses,Chico, learning about riding,animal care and menagerie of children and animals. Victor Cillis' own sons, Stefano, 10, has white markings on both of his responsibility. She'd like to live for 100 years....with and Philip, eight. Other denizens of reddish sides that look like the map of Friday is the special day.That's when every day a Friday. When the Mother the barn and land behind the Cillis's Cape Cod.When introduced to Bingo, a handful of children who have differ- Goose rhyme got around to that day,it spacious house include 11 horses,two a full-size horse of some dignity,whose ent problems come to Oktober Farm, was,"Friday's child is loving and giv- goats,two ponies,four Sultana hens(a lean ribs poke nearly through his chest- up the lane off Route 6A,just east of ing," which is isn't a bad theme for breed that thrives on being cradled in nut coat, the visitor realizes from her Sandy Street Cemetery.Apt to arrive a Fridays at Brenda's in West Barnstable. the arms of a child),one rooster and a little more quietly than those who come There's much of giving and love on flock of barn swallows. Woody, the Continued on page 7 i r `'. .7crluul l..liuuRG6LGG wulJul.cISjunu vJp.n.s 1H.1..UYLVIw ...owvr. with children in the school system and two members CAPE COD BANK of the media:Matt Pitta,news director of WQRC,and AND TRUST COMPANY } David Still II,editor of The Barnstable Patriot. Come and submit your own questions to the candidates. elecast live on Channel 19 from the TRUST AND INVESTMENT GROUP s , , Town Council Chamber Room. .: vem Sponsored by ins e4 4s. A7� `,1w y ,�,- The Systemwide Parents Advisory Council 1� x kk ';`x & The. Barnstable Patriot y, HORSE, PARTIES Created: Dec 3, 1997 edi t Air :15 19913 k , $100.00 PER PARTY. COME AND ENJOY, WHILE I DO THE WORK! YOU BRING THE CAKE AND DECORATIONS. I PROVIDE THE FUN. mAWE HAVE PARTIES..FOR ALL AGES, NOT JUST FOR PONIES AND LITTLE ONES, BUT FOR ANY `HORSE LOVER! WE USE MINIS FOR THE WEE ONES. CALL FOR INFORMATION OR BOOK NOW 362-1562 i .TrWr .61 k 7 xr^ 4 .7 ...4°-n '.a't' V LJ,z7,JJ.,' r fk t .r ,'M "fir :. 7 ' v. M ,ii,^ r .,?,1 q il'0 �. +ft•. '. ,Z.,.ri ''"s T•, , 11 ' § 3 ZONING C. 40A } , ganization to make use of given parcel ment of Public Utilities, not to municipal- when no other person or organization ities, authority to regulate and make de- E;`',; would be permitted to use same parcel for terminations on safety of transmission i 11! ' any purpose.Southern New England Con- lines. New England Power Co. v Board of ference Asso. of Seventh-Day Adventists Selectmen (1983) 389 Mass 69, 449 NE2d ' t�t" v Burlington(1986)21 Mass App 701,490 648. {1 t, NE2d 451, review den (1986) 397 Mass 1103,492 NE2d 98 Department of Public Utilities erred in Church desiring to erect building and not stating sufficient reasons for denying i? ! parking lot on land designated as wetland Petition to reopen record on issue of neces- by town zoning bylaw was not exempt sity for power company to construct 32 mile long overhead electric transmission under ALM GL c 40A §3 from compli- l ance with bylaw. Southern New England line through 11 towns and one city; case lis ' remanded for further subsidiary findings. Conference Asso. of Seventh-Day Adven-, I �ti fists v Burlington (1986) 21 Mass App Costello v Department of Public Utilities i , 701,490 NE2d 451.review den (1986)397 (1984)391 Mass 527, 462 NE2d 301. Mass 1103,492 NE2d 98. Petition of natural gas supplier to De- i 11 Remodeling of part of church building partment of Public Utilities for exemption for use as offices and counseling rooms for from local zoning regulations in order to 1( psychological counseling center with spiri- permit construction of meter station in � �I tual component resembled mental health residential zone was properly granted. clinic more than religious activity; conse- ties(1987)401 Mass 257, 516 NE2d 131.Martorano v Department of Public Utili- �. quently, building permit on basis of reli- i ,, gious use exemption was rightly denied. Department of Public Utilities was not Needham Pastoral Counseling Center, required to consider and reject alternative • Pc' Inc. v Board of Appeals (1990) 29 Mass sites to one chosen by gas company seek- App 31, 557 NE2d 43, review den (1990) ing exemption from zoning regulation in 408 Mass 1103, 560 NE2d 121. order to construct meter station. Mar- Structures used for religious purposes torano v Department of Public Utilities , are exempt from zoning regulations but (1987)401 Mass 257, 516 NE2d 131. I may be regulated as to bulk and height, Department of Public Utilities properly ,F yard sizes,setbacks,open space,and park- found on basis of substantial evidence that I ; , ing. Needham Pastoral Counseling Cen- site proposed by gas company for con- ter, Inc. v Board of Appeals (1990) 29 struction of meter station was reasonably ti Mass App 31, 557 NE2d 43, review den necessary for public convenience or wel- W' ' (1990)408 Mass 1103, 560 NE2d 121. fare. Martorano v Department of Public '; Meaning of phrase "religious purposes" Utilities (1987) 401 Mass 257, 516 NE2d i i I. is question of law for court. Needham 131. j' Pastoral Counseling Center, Inc. v Board : of Appeals (1990) 29 Mass App 31, 557 • Agricultural or horticultural , NE2d 43, review den (1990) 408 Mass Section of town's zoning bylaw - 1103, 560 NE2d 121. i anywhere in d Ilq Zoning Act adopts constitutional princi- town was invalid, because it conflicted # 1 ple that local authority map/ not, without with GL c 40A §3 which allows agricul- compelling state interest,use zoning regu- tural uses within all zoning districts in lations to burden religious practices. Need- municipality. Building Inspector of Mans- ham Pastoral Counseling Center, Inc. v field v Curvin (1986) 22 Mass App 401, Board of Appeals(1990)29 Mass App 31, 494 NE2d 42. 557 NE2d 43, review den(1990)408 Mass Operation of piggery constitutes "agri- 1103, 560 NE2d 121. culture" within meaning of zoning law, 8f ALM GL c 40A§3. Building Inspector of !it ll I„ 5. Governmental land or structure Mansfield v Curvin (1986) 22 Mass App [For future usesi 1! 401,494NE2d42. t. 1 lw 6. Public utility Operation of boarding stable for horses I Legislature has delegated to Depart- in riding academy in residential zone was 1 t HI • 259 'I1t} .'t 11 h I , ., ,_ w._. .<. _ . . r 5 .. .i,itk�Te..Yi A•ii-•'i2�,Yae' .dill �'',iv.a1SR x'ayy.F.t..a::�y zi ANNOTATED LAWS OF MASSACHUSETTS § 3 C. C. 40A by �. ._i, m that it furthered and did not dero- It agricultural use exempt from local zoning §40, or regulation. Steege v Board of Appeals gate from legislative purpose. Lovequist v ar (1988)26 Mass App 970, 527 NE2d 1176. Conservation Com. of Dennis (1979) 379 ar Mass 7, 393 NE2d 858,9 ELR 20730. 1e r "Term "agriculture" is not defined in There is statutor authority for munic- . .I ALM GL c 40A §3, but use in definition Y ! (1 i i' of term in taxing statute(ALM GL c 61 A ipality to impose reasonable time-based i..I i §§ 1, 3) was relevant. Steege v Board of zoningcontrols on local development. u. Appeals (1988) 26 Mass App 970, 527 Sturges v Chilmark(1980)380 Mass 246, iti pr 1"S NE2d 1176. 402 NE2d 1346. in 1i't, "Agricultural use" exemption is inter- ALM GL c 40A does not apply to City 1 C, j' preted broadly, and many activities con- of Boston. Emerson College v Boston lit m ducted on land being used primarily for (1984) 393 Mass 303,471 NE2d 336. p< t°tY agricultural purposes are allowed despite Care of 100 elderly persons in nursing conflicting provisions of local zoning by- home facility, including some instruction ti 1. ;, B laws. Tisbury v Martha's Vineyard Com. in crafts and like, was not educational i 6; i (1989)27 Mass App 1204, 544 NE2d 230. purpose within meaning of ALM GL c Where greenhouse and appurtenant 40A §3. Whitinsville Retirement Soc. v u se 4000 gallon fuel tank were essential com- Northbridge (1985) 394 Mass 757, 477 `T la ponents of plan to grow fruits and vegeta- NE2d 407. z< ;- bles on year-round basis, they constituted Town's flood plain zoning overlay dis- tc 11 limitingtrio was not confiscatory as applied to i r< f agricultural use, and town bylaw ; il size of fuel storage tanks to 500 gallons landowner's property. Turner v Walpole Si ti was unreasonable regulation of agricul- (1980) 10 Mass App 515,409 NE2d 807. V w ture in violation of ALM GL c 40A §3 11 UNDER FORMER§2 j; and was inapplicable to situation.Tisbury II. 1 v Martha's Vineyard Com.(1989)27 Mass 9. Constitutionality fi if App 1204, 544 NE2d 230. Such statutes as instant section are not is ..!) Use of land for greenhouse is horticul- violative of any provision of Constitution ,11 tural use protected by ALM GL c 40 §3, of United States nor obnoxious to any 11 f'; and cannot be prohibited or unreasonably provision of that Constitution or of Con- i regulated by local zoning laws. Tisbury v stitution of this Commonwealth. Building h Martha's Vineyard Corn. (1989) 27 Mass Inspector of Lowell v Stoklosa(1924)250 i :' App 1204, 544 NE2d 230. Mass 52, 145 NE 262; Spector v Building 1 1 Where land is being used for agricul- tural purpose, there is no necessity for Inspector of Milton (1924) 250 Mass 63,145 NE 265. e kik' 11 zoning board to consider variance for use §§25 et seq.of former c 40 were not un- r• t that is protected by "agricultural use ex- constitutional in that they permitted town f emption" in ALM GL c 40A §3.Tisbury to enact zoning by-law without previous € il v Martha's Vineyard Corn.(1989)27 Mass notice or opportunity for hearing: consti- r tutional requirements are satisfied if ade- I i,' App 1204, 544 NE2d 230. q quate opportunity is given after passage I �'. 8. Other;miscellaneous of such by-law to contest its validity and < Town's zoning amendment prohibiting its application to property purporting to 1 il abortion clinics as use in all zoning dis- be affected by it. Lexington v Bean(1930) }r!; tricts in town was invalid, because it con- 272 Mass 547, 172 NE 867. 1 stituted incursion into constitutionally Zoning bylaw adopted under instant I protected right of women to terminate section may not be applied if application 1 first-trimester pregnancy. Framingham of such bylaw to particular property is Clinic, Inc. v Board of Selectmen (1977) confiscatory, and constitutes invalid tak- !I 1 373 Mass 279, 367 NE2d 606. ing of owner's property, not justified by q j; Town wetlands protection bylaw did police power. Thus, bylaw preventing ,: not conflict with zoning Enabling Act, in erection of building upon lot unless lot that it was not zoning regulation, or with abutted upon way not less than 40 feet t state Wetlands Protection Act, GL c 131 wide was held inapplicable to erection of % ' 260 1 .. ,: ;; .,. ,; ., ..,ay_ t"�K'"�:.t - �_�•�. .,'::E ram..-.,, ..a. '.t.�t��? �,, HORSE LEASE. • Created: Dec 2, 1997.a �. . . •Last Y.ed t : Apr9.20, 1998 HORSE LEASES 156.00 PER MONTH;OUIET, FUN, RELA Ir1e, - TRAILS, ALL SIZES AND h ''' ':AGES.NO UET BILLS, NO MUCKING STALLS, NO SHOEING,NO FUSS,JUST COME AND RIDE. - AND HAVE FUN • CALL BRENDA .FOR INFO 362-1562 MEMO November 9. 2001 On Wednesday, November 7, 2001, at approximately 2:00 p.m., I visited 2051 Route 6A, West Barnstable with Bob Weston, Town of Barnstable Wiring Inspector. Reko Electric of South Yarmouth had installed three 40 foot telephone poles with lights on top of each pole. I posted a STOP WORK ORDER on one telephone pole and Bob Weston . instructed the workmen, who were not licensed, to leave the job. Qe-QP\44— Ralph Jones November 8, 2001 On Wednesday, November 7, 2001 at appr mately 2:00 p.m., I w s asked to visit for inspection purposes a job size t 2051, Route 6A, Wes Barnstable. Mr. Ralph Jones, of the Building Inspection Department met me at the job site. I found Reko Electric of South Yarmouth to have installed three, 40 foot wooden telephone poles, each pole having two - 1000 watt metal halioc lights at the top of each pole. Wiring (incorrect) and incomplete had been installed by the two unlicensed personnel from Relco Electric. I took the necessary information of the two individuals, posts s STOP WORK ORDER with Mr. Jones, told the persons to leave the job site and they were in violation of M.G.L. 141.8, not having licensed persons doing this work, and that no electrical permit had been requested or applied for. Mr. Jones took several photos at this location on my notice, stated that , I, Robert Weston, inspector of wires, the work would be required to be removed. Both workers signed the report that I wrote. 1 r a . r I , '�'. , $M,.,. „i • f Ij} ..... /}rys r i 1f t t I r • y i I b tf I, I0C •• ,les14l w i i , ,. • s • • 4, > q W r}r F': q :fit • r r ''. a : • •• a,' x • • a . 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I pay your salary and you haven't done your job. I pay over $5,000.00 in taxes and I am going to go further with this complaint." I then told him that the Cape Cod Commission was involved and I would notify them and that I would inform the Commissioner and send out a Building Inspector and the Wiring Inspector, which was done. Mr. Wirtanen was not a "Happy Camper", but I do feel thatv we fulfilled our obligation and reports were made to Peter and Attorney Robert Smith, who was in the Commissioners office. / - 7 /z...,i J v ;l (PHONE CALL) i / M 07 A. 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BY THE COURT, 1 1. tf c : <. l c C/= ViA-t_.i , CLERK. September 9 , 1988 U �oTE. OPLR The origin-i r' t'-- •b;r Neillics!"e .. . .. p�+r:�� :t to M.F.A.F. 23. 75Jo /) JL M. 87-1259 Appeals Court a MITCHELL STEEGE & anothery vs. 9OARD OF APPEALS OF STOW a others. • No. 87-1259. September 9 , 1988. Stable. Zoning, Agriculture. Words, "Agriculture. " • This is an appeal from a ruling of the Land Court that the operation of a boarding stable for horses and a ridilig academy is an agricultural use protected by G. L. c. 40A, S 3. VThe facts are not in dispute. Mitchell and Katherine Steege are the owners of property in Stow which contains in excess of five acres and is located in a residential zone. For many years prior to August, 1984, when the Steeges first acquired the land, the locus was part of a twenty- five acre farm which had been used as a home for ill and retired horses. From the time they acquired the property, the Steeges have used the premises for the raising, training, and boarding of horses; for giving riding lessons; and for the riding use of owners of the boarded horses. The premises have been licensed by the Commonwealth for the operation of a riding school. On August 2, 1984, the building inspector ordered the Steeges to "cease and desist immediately the riding school operation . . . ." The order stated that its enforcement would be "extended" if the Steeges filed for a special permit with the board of appeals (board) . On September 13, 1984, the Steeges submitted an application for a special permit, under protest. They claimed that the operation of a riding school on their property was an agricultural use and, therefore, exempt from the proscriptions of Katherine Steege. The building inspector of Stow and the town of Stow. NVAs an alternative ground for ordering the entry of judgment for the plaintiffs, the judge ruled that the special permit had been constructively granted because the board of appeals failed to take final action within the time period . mandated by G. L. c. 40A, S 9. The correctness of that ruling has been made an issue on appeal by the defendants. Because of • our decision in favor of the plaintiffs in regard to the "agricultural use" of their property, we do not reach that issue. 2 Stow's zoning by-law.. See G. L. c. 40A, S 3. After a hearing the board denied the Steeges' application for a special permit . The Steeges then filed a complaint in the Land Court against the board, the building inspector, and the town seeking a declaration that their use of their land was agricultural and exempt from local regulation. After the trial in the Land Court, the judge filed a memorandum of decision that contained her findings and rulings. She ruled that "the uses made by the plaintiffs of their land . . . are so interrelated that they comprise agricultural use as defined in G. L. c. 61A, SS 1 and 3, and G. L. c. 128, S 1, and are therefore exempt from the requirements of the Stow zoning by- law. " The defendants have appealed from that decision. General Laws c. 40A, S 3, as amended by St. 1982, c. 40, provides in pertinent part: "(N)or shall any (zoning) ordinance or by-law prohibit, unreasonably regulate or require a special permit for the use of land for the primary purpose of agriculture, .horticulture, floriculture, or vitriculture; nor prohibit or unreasonably regulate the expansion or reconstruction of existing structures thereon for the primary purpose of agriculture, horticulture, floriculture, or vitriculture . . . except that all such activities may be limited to parcels of more than five acres in areas not zoned for agriculture, horticulture, floriculture, or vitriculture" (emphasis supplied) . The defendants argue that the operation carried out by the Steeges on the premises, which are located in a residential zone, is not agriculture, and is therefore subject to the zoning by- law. The analysis used in Building Inspector of Mansfield v. Curvin, 22 Mass. App. Ct. 401 (1986) , is also useful here. The term "agriculture" is not defined in the statute. "When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose. We derive the words' usual and accepted meanings from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions. " Id. at 402 (citations omitted) . In that regard, Webster 's Third New Intl. Dictionary (1971) at page 44 defines "agriculture" as "the science or art of cultivating the soil, harvesting crops, and raising livestock." "Livestock," in turn, is defined as "animals of any kind kept or raised for use or pleasure." Id. at 1324. "We look also to the use and definition of the word 'agriculture' in other legislation because ' (.$)ound principles of . statutory construction dictate that interpretation of provisions • having identical language be uniform. ' " Building Inspector of Mansfield v. Curvin, 22 Mass. App. Ct. at 403, quoting from Webster v. Boardof Appeals of Reading, 349 Mass. 17, .19 (1965) . See Commonwealth v. Baker, 368 Mass. 58, 69, (1975) . 2A Sands, ' 3 Sutherland Statutory Construction S 51.02 ( 4th ed. 1984) . General Laws c. 61A, S 1, inserted by St. 1973, c. 1118, $ 1, which concerns then assessment and taxation of agricultural and - horticultural land, states that "( ljand shall be deemed to be in agricultural use when primarily and directly used in raising animals, including, but not limited to, dairy cattle, beef cattle, poultry, sheep, swine, horses, ponies, mules, goats, bees and -fur-bearing animals, for the purpose of selling such animals or a product derived from such animals in the regular course of business; or when primarily and directly used in a related manner which is incidental thereto and represents a customary and , necessary use in raising such animals and preparing them or the products derived therefrom for market" (emphasis supplied) . General Laws c. 61A, S 3, inserted by St. 1973, c. 1118, S 1, reads: "Land not less than five acres in area shall be deemed to be actively devoted to agricultural or horticultural uses when the gross sales of agricultural, horticultural or agricultural and horticultural products resulting from such uses . . total not less than five hundred dollars per year . " Here, there was evidence, and the judge specifically found, that the annual $500 minimum for sales had been exceeded by the Steeges. There was evidence that, as part of their farm operation, the Steeges purchased young horses, raised and then proceeded to sell them. The saleability of a particular horse depended on whether it could be ridden, particularly by young children. As part of their training, the horses would be ridden by students in order that they might become accustomed to handling by inexperienced riders. The Steeges had sold an average of ten horses a year in the past few years. In view of the evidence and the expansive definitions of "agriculture" in the statutes, the judge ruled that "the plaintiffs' purchase and raising of horses, their stabling, training through the operation of the riding school, and their participation in horse shows are all part of the one whole and constitute agriculture as that phrase is used in c. 40A, S 3." There was no error . The judge's interpretation gives the word "agriculture" found in G. L. c. 40A, S 3, "its plain and ordinary meaning and its consistent and well-established . . . definition in other statutory contexts. . . ." Building Inspector of Mansfield v. Curvin, 22 Mass. App. Ct. at 404. The other issues raised by the defendants are without merit. Judgment affirmed. Paul Killeen for the defendants. John P. Zelonis, Jr. , for the plaintiffs. Catherine Clement, Special Assistant Attorney General, for Massachusetts Department of. Food and Agriculture, amicus. curiae, submitted a brief. r , .r ,v.v._„ rM itiiii #; a,_:.mot, -- s �€, x ,. > t" , 128:1. AGRICULTURE. [Chap. 128.] � r• •°; - t department of food and agriculture. "Director", in sections sixteen to 4 , A :,,,' 4 1 thirty-one, inclusive, the director of the division of regulatory services in 5t ' 4,0 •` the department of food and agriculture. "Inspector", in sections thirty- 6 two to thirty-eight, inclusive, the inspector of apiaries. "Nursery stock", 7 trees, shrubs, woody plants and strawberry plants, whether wild or 8 k' ''` :, I � cultivated, and parts thereof for propagation. "Riding school operator", 9 41 any person owning or having the custody of one or more horses which 10 are let for hire to be ridden or driven, with or without the furnishing of 11 riding or driving instructions. "Trustees", the trustees for county 12 t� cooperative extension service. 13 lti r ' i 128:1A. Farming, agriculture, farmer; definitions. '' Section IA. "Farming" or "agriculture" shall include farming in all of 1 E its branches and the cultivation and tillage of the soil, dairying, the 2 li production, cultivation, growing and harvesting of any agricultural, aqua- 3 cultural, floricultural or horticultural commodities, the growing and 4 harvesting of forest products upon forest land, the raising of livestock 5 including horses, the keeping of horses as a commercial enterprise, the 6 f keeping and raising of poultry, swine, cattle and other domesticated 7 " " animals used for food purposes, bees, fur-bearing animals, and any 8 �'� forestry or lumbering operations, performed bya farmer, who is hereby9 defined as one engaged in agriculture or farming as herein defined, or on 10 11! a farm as an incident to or in conjunction with such farming operations, 11 tl$. includingpreparations for market, deliveryto storage or to market or to 12 p" p` g . carriers for transportation to market. 13 ;'a DEPARTMENT AND COMMISSIONER. Ii` 128:2. Powers and duties of department of agriculture. s Section 2. The department through its proper divisions shall have 1t power to— 2 • CG (a) Execute and carry into effect the laws relative to dairy products, 3 ' animal breeding, apple grading, plant pest control except the gypsy and 4 _° brown tail moths and the tent caterpillars, apiary inspection, and the 5 s, production, storage, marketing and distribution of agricultural products. 6 �' (b) Aid in the promotion and development of the agricultural re- 7 '' sources of the commonwealth and the improvement of conditions of rural 8 '''Y life, the settlement of farms and the distribution of the supply of farm 9 1 f. a'' labor. 10 , ,, h't (c) Establish a foreign trade section in the division of agricultural 11 ' i ., development and investigate the cost of production and marketing in all 12 �'; phases, and the sources of supply, of agricultural, aquacultural, floricul- 13 tural or horticultural commodities, transportation, storage, marketing 14 ;t, and distribution of said products sold, offered for sale, stored or held 15 ;'-:':. within the commonwealth. 16 ' 546 ,.• - ,, : 1 111:125A. Review of order adjudging the operation of a fi :m to be a nuisance. Section 125A. If, in the opinion of the board of health, a farm or the 1 operation thereof constitutes a nuisance, any action taken by said board 2 to abate or cause to be abated said nuisance under sections one hundred 3 and twenty-two, one hundred and twenty-three and one hundred and 4 twenty-five shall, notwithstanding any provisions thereof to the contrary, 5 be subject to the provisions of this section; provided, however, that the 6 odor from the normal maintenance of livestock or the spreading of 7 manure upon agricultural and horticultural or farming lands, or noise 8 from livestock or farm equipment used in normal, generally acceptable 9 farming procedures or from plowing or cultivation operations upon 10 agricultural and horticultural or farming lands shall not be deemed to 11 constitute a nuisance. 12 In the case of any such nuisance a written notice of an order to abate 13 the same within ten days after receipt of such notice shall first be given 14 P_ as provided in section one hundred and twenty-four. If no petition for 15 review is filed as herein provided, or upon final order of the court, said 16 board may then proceed as provided in said sections one hundred and 17 twenty-two, one hundred and twenty-three and one hundred and twenty- 18 five, or in the order of the court. If the owner or operator of said farm 19 within said ten days shall file a petition for a review of such order in the 20 district court for the district in which the farm lies, the operation of said 21 order shall be suspended, pending the order of the court. Upon the 22 filing of such petition the court shall give notice thereof to said board, 23 shall hear all pertinent evidence and determine the facts, and upon the 24 facts as so determined review said order and affirm, annul, alter or 25 modify the same as justice may require. The parties shall have the 26 same rights cf appeal on questions of law as in other civil cases in the 27 district courts. 28 111:143. Trade or employment resulting in or attended by noisome and injuri- ous odors; assignment of places; appeal. Section 143. No trade or employment which may result in a nuisance 1 or be harmful to the inhabitants, injurious to their estates, dangerous to 2 the public health, or may be attended by noisome and injurious odors 3 shall be established in a city or town except in such a location as may be 4 assigned by the board of health thereof after a public hearing has been 5 held thereon, subject to the provisions of chapter forty A and such board 6 of health may prohibit the exercise thereof within the limits of the city or 7 town or in places not so assigned, in any event. Such assignments shall 8 be entered in the records of the city or town, and may be revoked when 9 the board shall think proper. 10 The department of environmental protection shall advise, upon re- 11 quest, the board of health of a city or town previous to the assignment of 12 places for the exercise of any trade or employment referred to in this 13 section, and any person, including persons in control of any public land, 14 aggrieved by the action of the board of health in assigning certain places 15 for the exercise of any trade or employment referred to in this section 16 may, within sixty days, appeal from.the assignment of the board of 17 health to the department and said department may, after a hearing 18 rescind, modify or amend such assignment. 19 Notwithstanding any provision in section one hundred and twenty- 20 five A of this chapter, this section shall apply to the operations of 21 piggeries. 22 FARE BUREAU Massachusetts Farm Bureau Federation, Inc. 466 Chestnut Street o Ashland, MA 01721-2299 PHONE (508)881-4766 o FAX (508)881-4768 February 1, 1999 D�C SV • F 5 ASSS Mr.Richard Stevens,Building Inspector gE -G err' R iae �r� Town of Barnstable r�Ka�rant� Dept. of Health Safety&Environmental Services -c3�;....--- Building Division O�NG 367 Main Street �V\L Hyannis, MA 02601 RE: Mrs. Brenda Cillis, 2051 Main Street Dear Mr. Stevens: • I am writing on behalf of Brenda Cillis,in response to your letter of January 28,which alleges that Mrs.Cillis is conducting an inappropriate business on her property. As someone who works with zoning issues throughout Massachusetts,I can assure you that Mrs. Cillis' farm business is allowed under Massachusetts General Laws, Chapter 40A,Section 3. MGL 40A;3 provides that no ordinance or bylaw may `prohibit, unreasonably regulate, or require a special permit for use of land for the primary purpose of agriculture...except that all such activities may be limited to parcels of more than five acres in area not zoned for agriculture... " MGL 128;1A defines"Agriculture and farming"to include "the keeping of horses as a commercial enterprise"which is exactly the business conducted on the Cillis property. Mrs. Cillis is also giving horseback riding lessons,which is allowed by caselaw "Steege v. Board of Appeals (1988) 26Mass.App.970, 527 NE2d 1176. Which I have attached for your information. \ Therefore,I have advised Mrs. Cillis that she does not need to apply for a special permit,or seek relief from the Zoning Board as her activities are clearly exempt from zoning regulation in accordance with state law. Plea :-1 free , contact me if we can provide any further information on this matter. Sinc,' / 1 �� ., 1.1/ •• ,, Dou_1 P. Gillesp - Directo Governmental Relations Attachments c.c. Mrs. Brenda Cillis, 2051 Main St.,West Barnstable, MA 02668 Peter Watts,Forestdale, Cape&Islands Farm Bureau(also Sandwich Building Inspector) Dick Loring, Sandwich,President, Cape&Islands Farm Bureau Larry McCormick, Chief Legal Counsel, MA Dept. Food&Agriculture We the undersigned neighbors of the property at 2051 Main Street, Barnstable, owned by Victor Cillis and Brenda Tri, request the Town of Barnstable to enforce the Zoning regulations stipulating NO COMERCIAL USE OF HORSES in this area. Such commercial business as Horseback riding lessons, leasing of horses, boarding of horses, Summer Horse Camp, horse birthday parties, and trail riding on 6A and neighbors' properties, has resulted in an on- going NUISANCE and DANGER to this neighborhood. Issues of complaint include 1) The large volume of traffic vehicles accessing and parking along a right-of- way emptying onto 6A on a dangerous curve. This right-of way is shared by 3 neighbors, including small children. 2) Excessive noise: human, animal and vehicular. 3) Improper management of animals resulting in roaming of animals on both 6A and neighbors' properties, and subsequent damage to neighborhood property. 4) Improper management of business clients resulting in trespassing of clients onto neighbors' properties, both on foot and on horseback. 5) Improper management of animal waste including disposal of a large volume of excrement in the woods, resulting in unacceptable odors and unbearable horseflies. 6) Improper management of human waste i.e. clients denied usage of bathrooms- defecating in woods, thereby creating a serious health hazard. 7) Verbal abuse by business owners of neighborhood children, parents and workmen, whose normal activities are viewed by owners as disruptive to on-going horseback riding instruction. Our neighborhood is an historic residential area. We request that it remain so. Please enforce our protective Zoning laws. Print Name Si nature Address N ei Inn e I en n -��� v -/ /-7 a4-:, j)Jrn ICJ I-e nn-e-� f7j> �' ? -i r 1►�i n w. r Da V► tD 7 i1 ni n —z- ) ma. 'rmeC_ittr acd L. 9 CAI 5 . ee, J a R.o-,re e frt. g-reol-c-e. m/Ai igorivs irehk C�h axra. Uvdo ev = o,li 5I', w Pamest4k uJCSS 0 S tto_k* , �r tom ;�� %Sr. iNt e_c7_ ..2/o 5 s"; - gAA-iS-74-gtc f v►1L,S 1MA S. ot *"4•a v. -W.rowml'»IL( L-,�, _ We the undersigned neighbors of the property at 2051 Main Street, Barnstable, owned by Victor Cillis and Brenda Tri, request the Town of Barnstable to enforce the Zoning regulations stipulating NO COMERCIAL USE OF HORSES in this area. Such commercial business as Horseback riding lessons, leasing of horses, boarding of horses, Summer Horse Camp, horse birthday parties, and trail riding on 6A and neighbors' properties, has resulted in an on- going NUISANCE and DANGER to this neighborhood. Issues of complaint include 1) The large volume of traffic vehicles accessing and parking along a right-of- way emptying onto 6A on a dangerous curve. This right-of way is shared by 3 neighbors, including small children. 2) Excessive noise: human, animal and vehicular. 3) Improper management of animals resulting in roaming of animals on both 6A and neighbors' properties, and subsequent damage to neighborhood property. 4) Improper management of business clients resulting in trespassing of clients onto neighbors' properties, both on foot and on horseback. 5) Improper management of animal waste including disposal of a large volume of excrement in the woods, resulting in unacceptable odors and unbearable horseflies. 6) Improper management of human waste i.e. clients denied usage of bathrooms- defecating in woods, thereby creating a serious health hazard. 7) Verbal abuse by business owners of neighborhood children, parents and workmen, whose normal activities are viewed by owners as disruptive to on-going horseback riding instruction. Our neighborhood is an historic residential area. We request that it remain so. Please enforce our protective Zoning laws. Print Name Signature Address � L_k k)6‘,1A‘sk._, . � l (1) . Lbw q 3cmkuLotAcAri_ w .sovil _1 �//l��•�� oiagie tz."-:‘,eh p fit. i a 9 v ad i e'°,moo w. 13. �I,�. �cb �, r�;�/•/r� to-� 0 September 10, 1998 VON OF BARR�STABIE. Mr. Tom Perry WiLp1NG DSPT. W. Barnstable Building Inspector 5 �9g� 367 Main St. SEP t Hyannis, MA 02601 Re: Brenda Cillis Dear Mr. Perry: As a long time Barnstable resident and tax payer,there are a few issues I would like brought to your attention: Mrs. Brenda Cillis at 2051 Main St. W. Barnstable, is currently operating a riding school on her property, she is not zoned for commercial use. While giving you falsehoods that she only handles children that are handicapped and have terminal illnesses. She advertises at United Farm and Pet Service in W. Barnstable posting her fee schedule. There is constant traffic in and out of her property, it is rumored that she is not licensed to instruct the children in her school. She offers no sanitary facilities for her students, suggesting they either urinate in her stalls or defecate in the woods. She provides her students with bicycle helmets, not the mandatory riding helmets used for safety. She instructs a number of students at a time, (up to 10), when an licensed instructor would know each instructor has no more than 2 children at a time. She does not have her horses up to date on their shots, which could then pass diseases to her students. She put a paddock up on her property without obtaining a permit. She is now intending to apply for approval to construct an indoor arena to conduct her business year round. She denies the fact that she boards horses at her location. There has already been one individual injured on her property with a broken arm. These issues should be addressed immediately,to ensure the well being and safety of Barnstable's children. Sincerely, A Concerned Barnstable Resident September 10, 1998 Mr. Ralph Crossen BUILDlik c Zoning Compliance 367 Main St. D I 1 5 1998 Hyannis, MA 02601 E5 C 2 a L5 Re: Brenda Cillis Dear Mr. Crossen: As a long time Barnstable resident and tax payer, there are a few issues I would like brought to your attention: Mrs. Brenda Cillis at 2051 Main St. W. Barnstable, is currently operating a riding school on her property, she is not zoned for commercial use. While trying to pacify your inspector Mr. Perry with falsehoods that she only handles children that are handicapped and have terminal illnesses. She advertises at United Farm and Pet Service in W. Barnstable posting her fee schedule. There is constant traffic in and out of her property, it is rumored that she is not licensed to instruct the children in her school. She offers no sanitary facilities for her students, suggesting they either urinate in her stalls or defecate in the woods. She provides her students with bicycle helmets, not the mandatory riding helmets used for safety. She instructs a number of students at a time, (up to 10), when an licensed instructor would know each instructor has no more than 2 children at a time. She does not have her horses up to date on their shots, which could then pass diseases to her students. She put a paddock up on her property without obtaining a permit. She is now intending to apply for approval to construct an indoor arena to conduct her business year round. She denies the fact that she boards horses at her location. There has already been one individual injured on her property with a broken arm. These issues should be addressed immediately,to ensure the well being and safety of Barnstable's children. Sincerely, A Concerned Barnstable Resident 8/slay cZ� e .oN.e w� 6�e-nds� . �i,,q.,-^n�c� abw3-- � ,amt ,ALouoict 9/iY/9t eaea :RrutLCa. . „te_a4Le_, Ati-ncs- 3Pit z66- ap4-eiva 6t,L,k4,/ 0,6 c4--C gn ee� w�sel ate+ �jowu-0, • .s.` .., . .-may Lo rfiD zr.lntS D< 7/ 7/9,- Complaint Number: Recc.t.-red To: /�7 Taken By: Bax:rr Bess/Occupant Name: Number: 'G ?S Street: •�%� �,,U /ete,77__Vil a;e: Map/parcel: Complainanes Name: a---r6-04-rf--el e•--04--41-14-r--€4) Address: Telephone Number: Q/ Complaint Description: /.5" Ge-U Actions Taken/Results: Date Closed: SUPERVISOR SIGNATURE(IF NEEDED) az.ate ,Q, .5.„-a ,5 c__0-- p(AtAx-r -7(g-friCIY oF-e, —,ReA)044- Ct (f r ) IL- ©_ Q e_ ( S- (r. )25Q 5 -r `5 u w2-t---( S 6 `' (.1 I -) n (� � �0��7 2 CQ� ,co2PA(i �T SLe_ c cJcQN r ka2s� �C cX t _ t, SCAe 2-e cr e v e re c J i:), `cX 73 K * i CA)O O4 SA9 ,�q 5�e � � 2 u pdA }F o,, ,, ti 20 a(Q�-5 rt-D (e�� � �a5 uJ t°-k ft�ck l �D� C 4' RAP�J rrz4c J �� 9 P i skp c OC ?-9 l /vl ©u r � S rTk 4�O—� ��tT vs.) l 01' t O(o a 08-3 r -' � d - — li , 4 . i --— ,42.az Loz Za fti Ai 191.42' —--— tt1 3-' 0 Nam. \ _ �:l F . m �o • M0 I• , \QcriLIM bt.42TF►A E. � '' _ //3.5t C3SA 1--A. en 04•g4• i m Lo-r Zg 1 In s.ZLc- 0 - N 1 1 y6.95. g 380.78• A it'' GOMMa+-i laEALtH of M4554cHv5E775/ Ci 1 �/ JOB # 86-140 CERTIFIED PLOT PLAN PREPARED FOR: LOCATION: RTE 6A W . BARNSTABLE SCALE: 1=120 DATE: 4/7/88 REFERENCE: L-3 PB 382 PG 87 BAYSIDE BUILDING CO . I HEREBY CERTIFY THAT THE BUILDING SHOWN ON THIS PLAN IS LOCATED ON THE GROUND AS SHOWN HEREON. BUILDING CONFORMS TO SETBACK REQUIREMENTS -�'•.. OF THE TOWN WHEN CONSTRUCTED. y��pv•, vF Mossy. .o� JOHN \ down cape engineering NoE;W`E I No...�so2 a CIVIL ENGINEERS ,L`9� ri 1 LAND SURVEYORS / / �/i''i �d l i i ROUTE 6A YARMOUTH MA DATE / - --i SURVEYOR / Engineering Dept. (3rd floor) Map Parcel � Permit# CIS / , / House# c7W57j, Date Issued (I� a-96 oZ Board of Health(3rd floor)(8:15 -9:30/1:00-4:30) #FF-- /1 4/ ee #'/70 'So 3 Conservation Office (4th floor)(8:30-9:30/1:00-2:00) 11 2 /6b��/ �Pen ,, Planning Dept.(1st floor/School Admin. Bldg.) d t11E 1p,,_ Defin' ' ' . • •pproved by Planning Board 19 � '' ',�{., BE 0, ^�' SYS �"� Ate. TOWN OF BARl�dSTABI Ei WITH Tt Building Perm' lication �,�6V'1RoRl�flEl�l°TA9�.CODE. �h9® Pr•'ect Str-- Address ,_O -4 °6®i�Yl `REG�39.P.`�l® 5 Village &f Owner -�, L altz,LAddress Telephone ,3 - /S'6 o Permit Request /Cc )ciz.e..‹..) First Floor C Obi square feet Second Floor J.,1 square feet Construction Type e a eL_GU i-4,4-vve-12.--- Estimated Project Cost $,1-5-787)7) Zoning District R� Flood Plain Water Protection Lot Size 7 Grandfathered ❑Yes ❑No Dwelling Type: Single Family a Two Family ❑ Multi-Family(#units) Age of Existing Structure Historic House Li Yes Li No On Old King's Highway Li Yes ❑No Basement Type: Edull ❑C awl Li Walkout ❑Other Basement Finished Area(sq.ft.) Basement Unfinished Area(sq.ft) •••--------- Number of Baths: Full: Existing ,Z New Half: Existing / New No. of Bedrooms: Existing ',t New � Total Room Count(not including baths : Existing r New First Floor Room Count ,/ Heat Type and Fuel: Li Gas it ❑Electric ❑Other Central Air Yes p'�io/ Fireplaces: Existing �--Flew Existing wood/coal stove ❑Yes Garage: etached(size) c7t �a/L- Other Detached Structures: ❑Pool(size) Li Attached(size) ❑Barn(size) ❑None ❑Shed(size) ❑Other(size) Zoning Board of Appeals Authorization ❑ Appeal# Recorded❑ Commercial ❑Yes Li No If yes, site plan review# Current Use Proposed Use .� ��� // (' /1' Builder Information / 4,Gda1f S' J (, 4,,., Telephone Number rO 8---e?7 OAT 3 . , Address 3 IZ C/G ense# GS- S6 7 3 7 - .... . f ySG�-,,,6.4.4.(.i„, , ,`'t"- a 5-37 Home Improvement Contractor# 7 / *-7 `7 0,5 Worker's Compensation# NEW CONSTRUCTION OR ADDITIONS REQUIRE A SITE PLAN(AS BUILT) SHOWING EXISTING,AS WELL AS PROPOSED STRUCTURES ON THE LOT. ALL CONSTRUCTION DEBRIS RESULTING FROM THIS PROJECT WILL BE TAKEN TO V- e SIGNATURE ATE_____/ .2 G BUILDING PERMIT DENIED FOR THE FOLLOWING REASON(S) a FOR OFFICIAL USE ONLY PERMIT NO. DATE ISSUED MAP/PARCEL NO. ADDRESS VILLAGE I OWNER DATE OF INSPECTION: FOUNDATION i E (N 9 P FRAME 5/.�/9.? INSULATION //// /// FIREPLACE ELECTRICAL: ROUGH FINAL PLUMBING: ROUGH FINAL GAS: ROUGH FINAL FINAL BUILDING • 5 x: v� a DATE CLOSED OUT ° '`�/,�9.7 9'1 tt ASSOCIATION PLAN NO. rt • �. • The Thwn ®f I:aIrnstab e BARNSTABLE. � �� Department of Health Safety and Environmental Services rep Meg" Building Division 367 Main Street,Hyannis MA 02601 , Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner For office use only • Permit no. ' Date AFFIDAVIT HOME IMPROVEMENT CONTRACTOR LAW SUPPLEMENT TO PERMIT APPLICATION MGL;c. 142A requires that the "reconstruction, alterations, renovation, repair, modernization, conversion, improvement, removal, demolition, or construction of an addition to any pre-existing owner occupied building containing at least one but not more than four dwelling units or to structures which are adjacent to such residence or building be done by registered contractors, with certain exceptions,along with other requirements. Type of Work: a Est.Cost \S Ph) Address of Work: 2D,5 / _ 6e.. L Owner's Name V 9 Date of Permit Application: //— % — 96 I hereby certify that: Registration is not required for the following reason(s): Work excluded by law Job under$1,000. Building not owner-occupied Owner pulling own permit Notice is hereby given that: OWNERS PULLING THEIR OWN PERMIT OR DEALING WITH UNREGISTERED CONTRACTORS FOR APPLICABLE HOME IMPROVEMENT WORK DO NOT HAVE ACCESS TO THE ARBITRATION PROGRAM OR GUARANTY FUND UNDER MGL c. 142A SIGNED UNDER PENALTIES OF PERJURY I hereby apply for a permit as the a of the owner: .1/ -a/-96 1/77& r Date Contractor Name Registration No. OR Date Owner's Name a► 1.• Tile Cotrttrro»11'cultll of ilassaclrusetts '.: • y j 1- 1... i t•y D�partnrcnt oJludustrial.4cciJurts • - Officeollmest/gat/otts �- i.w fq ;\ ;il, �i ;4+' 600 H'oslrini;ton Street Ti...N. - - ' +. Boston, A1uss. (1?111 Workers' Compensation Insurance Affidavit gppaa tnforntation: — — —Please PRINT lentjy ._. pame: Jorttion: City Mont:if inI am a homeowner performing all work myself. I am a sole proprietor and have no one working in any capacity _ _ 1 .s.=r...ww..y c."= :'^T•"='�r' • ,..---rsws7`s.�.�^'�,.,r-..�.•- _ _ �' ._ -. . •„�L...' ,Y.�..�•�=Y��_ Q I am an employer providing workers' compensation for my employees working on this job. comnam name: • address: s, • city: • nhonc#!: • insurance en- moiler c __ ... . ,•r... .-q+.,..—.....�++w...t--.....'�'r a+�.. ... ... CI I am a sole proprietor �� a contracto r homeowner(circle one) and have hired the contractors listed below whc the following workers ensatlon polices: 6 �ompam• name: m 5, siki_Li v/f N A- c NT I c.S ..7-''pddress: 333 tAii-K&W._ Y 1&&-'7?NG 's = 1Z•1) . -it •��. ,,A�/DW te-H- //t 0aS37 �rthonc ii: $3�— F&n73 Pa,�e�c 170 1►4b / ,fp insurance co. ,� C _ �t policy e zioZg 3 5�/7—00/-anal • company name: Address: city: nhone it: insurance eo nolicv d 'Attach additional sheet if neeci .•• 7:7w..z :'.`.'..�•r `.,`_."..''..• ''Lr�.1'`".3.15;is+".:�-..�.`n. % ,�,.-__��..�_-__-_-_ ir--. ��/!.M •..YES.. Failure it;secure coverage as required under Section.SA of 51GL 152 can lead to the imposition of criminal penalties of a line up to 51.500.00 ant one years'imprisonment as well as civil penalties in the form of a STOP WORK ORDER and a fine of S100.00 a day against me. I understand th copy of this statement may be forwarded to the Office of Investigations of the DIA for coverage verification. I do Jerebr certij•sinner the pains anti nalti of perjury that the information provided above is true and correct. . Date ///Mo/. 9 C �,'• Si_naturci .�. � ,Arint name / ""'G4' ( C- CZ/ v/e ti Amulet t 13 g-1,--• fet.olTicial use only do not write in this area to be completed by city or town official "' "' city or town: • permit/license N fliuilding Department oLicensing Board check if immediate response is required Selectmen's Office °Health Department contact person: phone!t: _nOlher M • ,Information and Instructions Massachusetts General Laws chapter 152 section 25 requires all employers to provide workers' compensation for employees. As quoted from the "law". an employee is defined as every person in the service of another under and contract of hire. express or implied. oral or written. • • An employer is defined as an individual, partnership. association. corporation or other legal entity, or any two or the foregoing engaged in a joint enterprise, and including the legal representatives of a deceased employer. or the receiver or trustee of an individual , partnership, association or other legal entity, employing employees. Howeve owner of a dwelling house having not more than three apartments and who resides therein, or the occupant of the dwelling house of another who employs persons to do maintenance , construction or repair work on such dweilin, or on the `_rounds or building appurtenant thereto shall not because of such employment be deemed to be an empi MGL chapter 152 sec\ion 25 also states that every state or local licensing agency shall withhuild the issuance o renewal of a license or permit to operate a business or to construct.buildings in the commonwealth for any applicant who has not produced acceptable evidence of compliance with the insurance coverage required. Additionally, neither the commonwealth nor any of its political subdivisions shall enter into any contract for the performance of public work until acceptable evidence of compliance with the insurance requirements of this chap: been presented to the contracting authority. Applicants • Please fill in the workers' compensation affidavit completely, by checking the box that applies to your situation a supplying company names. address and phone numbers as all affidavits may be submitted to the Department of Industrial Accidents for confirmation of insurance coverage. Also be sure to sign and date the affidavit. The affidavit should be returned to the city or town that the application for the permit or license is being requested. not the Department of Industrial Accidents. Should you have any questions regarding the "law" or if you are req:: to obtain a workers' compensation policy, please call the Department at the number listed below. City or Towns • Please be sure that the affidavit is complete and printed legibly. The Department has provided a space at the botto the affidavit for you to fill out in the event the Office of Investigations has to contact you regarding the applicant. be sure to fill in the permit/license number which will be used as a reference number. The affidavits may be return the Department by mail or FAX unless other arrangements have been made. • The Office of Investigations would like to thank you in advance for you cooperation and should you have any queE please do not hesitate to give us a call. The Department's address, telephone and fax number: The Commonwealth Of Massachusetts Department of Industrial Accidents Office of Investigations 600 Washington Street • Boston,Ma. 02111 `1- M 5 �- SLaa-FL:v g,re_cY*) roJ3� eas' h 10 k:4-e f ;he . �} ��`1111 / 5e 3/g oaf, . 3�X y ,p ors , �,. 3�`' 4 . C . ._ Cross ad':b \ /‘0% 3ca(Q — • ,4.- +r f-c.i- 6ac,5 , P--- \ i IZ <Y 510 I �-°�,�,5 9 Lye% �.� 9 X 9 . a � \ ..../ \ , .12c.-- \N't i i s %), 6(k,--— \ G X l0• , :' ,t, \\ fo X iv .., G XI C. = - i• �k y ' - yxM a yxy six`} LL`l '4 O San • e ;Yeud-�e°1 • r. , sitk i , -I z. 'I' 1KS 1'16 76 bx . __- �, D \� A W yX1,t�°�5t5 vAD ��a®,f. ' x 100 I TO .x 'a x 61(10 • D 4/ o ,o ` p ' .� n ^ ^ No ✓110 • }( X rf� ��; , (o}vim bXI� by-r1 TO _ 7 X�1 f7yi —"' ._.-- • el ( 0 re: Ian 1 i Lie 36x00. u? - Lac?_64 (/ i 1 y x;b • / // o'`J i ail \,y ,, . ),:'''vte- 1 K\.1. -----v--00 . L \ , . (LAID ti x ID - - , ,.\\ 7// \\\ 4 c). 0 \ i- --k- 14.Y �� u Li \p lvrk'c reSS'',1 S'\ .., %al -----t--- 1 C)' 2 C.\fo ss 5c+ `Z Vv-covovtCCA It ),5 G . \ Gs 11-4 10. 7h1C1 \,YA I.x at • ,.._ 6 X4_,_. Gt.11 . k - , a, a t . 1 Li xb Jo51-5 / �- 47 V :To 0 a v + A. \t‘l-t` l'4 Ti-4 i _ tee —±-- m.' --f----_ Id( i-,,, , tAct �. — ''06 ,. - S c , . iv qt3 . Sco,le V3 ' Ie j:,:„ `{ (_ . r(7' )o *`5 -o 7- otgts / 2X1O Ib"o.c, 6olt�d W5e-. '.G- . . . I vi 2Xw i4L L \;hs / i is b I6, f 1i �/ I 0Q 5 Ae_4,,c1) r 5 5 P g►;P S 1 Pp�S P GN S. �.� ;:. 0:Pam,NS • . bpi H00'to- . 1 •s ' Old- Kings Highway Regional Historic District Committee in the Town of Barnstable for a6441-1/At - ' 96 198 CERTIFICATE OF APPROPRIATENESS Application is hereby made, in triplicate, for the issuance of a Certificate of Appropriateness under Section 6 of.Chapter 470, Acts and Resolves of Massachusetts, 1973, for proposed work as described below and on plans, drawings or photographs accompanying this application for: CHECK CATEGORIES THAT APPLY: 1. Exterior Building Construction: New Building D Addition ❑ Alteration Indicate type of building: ❑ House 0 Garage ❑ Commercial ❑.Other &al.) • 2 Exterior Painting: ❑ 3. Signs or Billboards: 0 New sign 0 Existing sign ❑ Repainting existing sign 4. Structure: ❑ Fence 0 Wall ❑ Flagpole ❑ Other ' (Please read other side for explanation and requirements). .. TYPE OR PRINT LEGIBLY DATE ADDRESS OF PROPOSED WORK �?Os / /97Ccin .S _A/ 8a//2-4-44 ASSESSORS MAP NO. 2I12 476 OWNER VI r h" V e' //, 5 ' t�Pnc/(4 ',,,,. , ASSESSORS LOT NO. 0'7f A/ -- ` v z ' HOME ADDRESS �� 5'/ /l�/Gz/) ST �i�s h-�Lc.� �/� TEL. NO. -94.,Z"/ ‘'' 2- FULL NAMES AND ADDRESSES OF ABUTTING OWNERS. Include name of adjacent property owners across any public street or way. (Attach additional sheet if necessary). \ ——�FVk li,tro,t i e L e w,s . 20 SC Itn n/,) 5!, W. 6r205�15 s`21 S' ? . i /21/1 S• /'//• /6,.. /u2,-7-ey LU'i M iv/if 5( w.l34.1..,sf4( tt 36 2. rc'-9 - /2 L' CE)---n.--)-)c.cn,Iy ('v//.Kf,C, (-LTC /3Z i✓ Sr)AA/SirnPs-4c — 3ba.. al > / • • 1,4I /-/ia 19Th( I1A II-1,J SI- Ii, 6094454-14 Le. — 3 0- 3 Ff y - /'2,7. ',7-7,er. 5 -yS711,,,- �2 '114,',n,J(Lot — Liu•cs ea— : I.i 6eItlI5 M. 1-a,L.. w .NuSrn GZ _ 3(+Z/y3: AGENT OR CONTRACTOR c TEL. NO. ??1 21-9 3 ADDRESS 33 0I.4 l i'6„%, 4L iL t X ,,,e,vi, • DETAILED DESCRIPTION OF PROPOSED WORK: Give all particulars of work to be done (see No. 8, other side), including materials to be used, if specifications do not accompany plans. In the case of signs, give locations of existing signs and proposed locations of new signs. (Attach additional sheet, if necessary). • CLAJ C hil S (i<.I.. c. o c e Lw ,4 Sec 5f� (T �'�rrj� �$ £ ��°;i'4 ,41 I 1 ' ,� Signed rtjetOwner-Contractor-Agent �Sgace below line for Committee use. •M a5eceiv d b i D:�tC---- - n 6 - - Pate '%= The Certificate is hereby l././�,2a'V '72 Date ,/ �O7 Time 14 -14) al ..,„i f." . Approved �❑ ' IMPORTANT: If Certificate is approved, .. •pr'••' l s•elect to the 10 day appeal period provided in the Act. ( ' • ) Town of Barnstable Old King's Highway Historic District Committee SPEC SHEET . FOUNDATION C CALIC (ii_?cL4l& (l 1, SIDING TYPE J 1,g, c�.r 1 0A4..1Q COLOR -34Ap"k 41iP C-.. dk417 CHIMNEY TYPE COLOR • ROOF MATERIAL I5 \ JX . COLOR t 44I.;Ca_ PITCH 1� WINDOW p teLAA SIZE T X 5 3 k47( TRIM COLOR WL, r( DOORS UJ g O k e Q i 1 COLOR � SHUTTERS COLOR GUTTERSU-Ltil/V DECK GARAGE DOORS —C COLOR SIGNS COLORS FENCE 7"J ( elLt lost,c3 COLOR NOTES: Fill out completely, including measurements and materials/colors to be used. Three copies of this form are required for submittal of an application, along with three copies each of the plot plan, landscape plan and elevation plans, when applicable. Site plan should show all structures on the lot to scale. SPECSHT r • T . RO UE 6A N •o7'zQ1,E 8150.00 —. ►, L=152.51' .4.•04 R=92 71 •1II". i 4.u� 0, „E '.•lo Icno 6� ' t `-- .2545�•-• l• N76 11 ,..--— c z0 h % �11. , by 1. wtti 4 .\ LOT 2 LOT 1 <' LOT 4 W NI •k%' ,i. 7:: li �i o c 8Q I 50��1 O3_4 -_,�. `` " . r'' 0.4 �g v zs •p 18 , _ ��� 3' 8 ,E ' tit. *". ...":“.'" 1 *\-:,' i i.4:.3;i i CAR 1 CAR•i A .: _.1 t10 16.1 / . . . " . . PORT �iiii 11 O p ` t + 2051 % p�, r tt 0� i///� ,/ � .� �- � �vz Off. � 11 .` • WI NOT 7'0 DETAIL_CALE To'114 ... -i , `i�`� ' 1601 1 • . . 1�: - 11 _ .,;.t ,-• �,.-- - :_ � �� ..°A COMMONWEALTH OF MASSACHUSETTS - , 0,d l i53 ._ " This MORTGAGE INSPECTIOI '.P1an. s.For FLOOD ZONE' "C.' ,. RES. ZONE: RF Bank Use Ont.- TOWN: _IY.E_T_B FiN TABLE REGISTRY OWNER: F.E1IRF1ELD_AFELLI44TE' DEED REF: £ 5/LLO' -BUYER: _2&QE_J �4c..64'EN1 L.M _C1LLIS'_—__� DATE: �2Z 2 94 PLAN REF: _38,2 7 ___.s,, __ SCALE:1"= 150 FT. -I HEREBY CERTIFY TO EdPE_C'QLLBANK_�'_IBiliST CQ—_ t OF ITS SUCCESSORS AND/OR ASSIGNS THAT THE BUILDING �.''�'pAUL G YANKEE SURVEY SHOWN ON THIS PLAN IS LOCATED: ON THE GROUND AS ,/ a 'A - CONSULTANTS SHOWN AND THAT ITS POSITION DOES ____ CONFORM TO THE ZONING LAW SETBACK REQUIREMENTS OF THE a 44 40B INDUSTRY ROAD TOWN OF ___BARN3TABLE__- • AND THAT ! , , MARSTONS MILLS, MA. 0?348 IT DOES_NQ2_ LIE WITHIN THE SPECIAL FLOOD HAZARD ' TEL 428-0055 AREA. AS SHOWN ON THE H.U.D. MAP DATED... �-9,/_ _ '+;.:,t IA0 " FAX. • 420-5553 Co --u 't .. P: -1 ; 250001-0005-C W t, 0 r--'- THIS PLAN NOT MADE FROM AN INSTRUMENT 16097 •• GGM ---- SURVEY NOT TO BE USED FOR.FENCES ETC. PHOTOGRAPH ADDENDUM Borrower/Client Cillis Victor J. and Brenda M. 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NSTAi639 Town of Barnstable Zoning Board of Appeals Decision - Notice of Withdrawal Appeal Number 1999-71 -Tri/Cillis Appeal of the Building Commissioner • Summary: Withdrawn Without Prejudice Applicants: Brenda Tri and Victor Cillis Property Address: 2051 Main Street, Barnstable/West Barnstable Assessor's Map/Parcel: Map 216, Parcels 076W00&076B00 Area: 5.19 acres Zoning: RF Residential F Zoning District Groundwater Overlay: AP Aquifer Protection District Background: The property that is the subject of this appeal is a 5.19 acre lot commonly addressed as 2051 Main Street, West Barnstable. It is developed with a two-story, 4,088 sq. ft. single-family dwelling and an accessory barn structure. The property is currently being used for the raising, keeping and boarding of horses. In addition,the applicants also offer horseback riding lessons for both horse boarders and non-boarders. On February 5, 1999, the applicants were ordered to Cease and Desist the use of the property as a commercial riding academy, as defined in a letter dated February 5, 1999 from the Building Commissioner. The Cease and Desist order refers only to the riding programs for the public area not associated with the purchase of a horse. The Building Commissioner has agreed that the raising of horses is agriculturally exempt but is of the opinion that providing riding instruction to the general public is a commercial endeavor that is not exempt from zoning. The applicants are appealing this decision of the Building Commissioner. They contend that the property is a farm used primarily for the raising, keeping and boarding of horses, and that the use of the property for horseback riding lessons is incidental and accessory to the primary use. They further contend that this use (both raising, keeping and boarding horses, and offering horseback riding lessons) constitutes an agricultural use that is exempt under Section 2-4.1(3) of Barnstable's Zoning Ordinance and under Section 3 of Chapter 40A of the General Laws of Massachusetts. Procedural Summary: This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on March 8, 1999. A 60 day extension of time for holding the hearing and a 90 day extension of time for filing of the decision was executed between the applicant and the Board Chairman. A public hearing before the Zoning Board of Appeals was duly advertised and notices sent to all abutters in accordance with MGL Chapter 40A. The hearing was opened June 16, 1999 and continued to July 14 and September 01, 1999, at which time the Board, per request of the applicants, granted a withdrawal without prejudice. Hearing Summary: Board Members hearing this appeal were Gene Burman, Ron Jansson, Gail Nightingale, Richard Boy, and Chairman Emmett Glynn. Attorney Julie Molloy represented the applicants Brenda Tri and Victor Cillis, who were present. Attorney Molloy submitted a memorandum to the file. Attorney Molloy addressed the Board. She stated that the lot size is 7.1 acres not 5.18 as indicated by the staff report and that Parcel 075.002, which is about 2 acres, is also part of the property. Attorney Molloy described the current use of the property. The applicants operate a horse farm which includes the keeping, stabling and boarding of horses. They also run a riding academy which she stated is an accessory use to the principal use of the horse farm. By definition, an agricultural use is a business and farming is an industry. It is their position that riding schools are a part of farming and is allowed as an exempt agricultural use under Section 3 of Chapter 40A of the Massachusetts General Laws. She stated that neither Section 2-4 of Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1999-71 -Tri/Cillis Appeal of the Building Commissioner Barnstable's Zoning Ordinance - Unrestricted Uses - nor M.G.L. Chapter 40A define agriculture. As such, she looked to the State for a definition of agriculture which does include the keeping , stabling and boarding of horses. The Board asked if the applicants have a 61A exemption. The applicants stated they applied in October, 1998 for a 61A exemption but it has not gone through yet. Attorney Molloy stated that the Building Commissioner will allow horses and lessons at the farm, but not paid lessons for those not"buying a horse", which he considers to be a commercial endeavor not exempt as an agricultural use. The customary use of a horse is riding. The applicants'farm is called Oktober Farm. Ms. Tri gives riding lessons. Some people end up buying a horse after lessons and others do not. Ten people (families) have bought a horse since they took riding lessons from her. The Board asked for further clarification about the operation of the riding lessons. Attorney Molloy responded that riding lessons are not always necessary before you buy a horse. Most people take lessons and decide if they like it before they buy a horse because of the high cost. Some people take lessons but simply cannot afford to buy a horse. Not everyone is charged a fee for riding lessons. There is no fee for handicapped children or for educational purposes. The Board asked where on Route 6A the farm is located. The applicant stated they abut the college and that there are no signs. The Board compared horse lessons to dance lessons which can be exempt as an educational use. The Board asked the Building Commissioner about his position on the matter. He stated that the agricultural exemption has changed over the years. Various cases have been handed down and most have supported the progression from private to more commercial use. Where is the line between a commercial riding academy and a full commercial enterprise? In the Steege case, the court found that horse riding was OK because people bought a horse after taking lessons. In this case, people do not have to buy a horse to take lessons. The Building Commissioner stated he was being "cautious" and wanted the Board to make the determination when he informed the applicants they could not operate a commercial riding academy. Attorney Molloy responded that she disagrees with the Building Commissioner's assessment of the Steege case and that it does not refer to the need to buy a horse. The Board stated that the town is trying to limit commercial activity in residential areas. Agriculture is an exempt use but the Board must see if the applicants' operation is consistent with the area. Attorney Molloy responded that the town could limit the size of the area- say 5 acres - but has chosen not to. The Board discovered that because the application did not include the 2 acre parcel previously discussed, the correct abutters have not been notified. The Board suggested this appeal be re-advertised so there can be proper notification. The Board decided to continue Appeal Number 1999-71 to July 14, 1999 @ 9:00 PM. Board Members hearing this appeal on July 14, 1999 were Gene Burman, Ron Jansson, Gail Nightingale, Richard Boy, and Chairman Emmett Glynn. Attorney Julie Molloy represented the applicants Brenda Tri and Victor Cillis, who were present. Attorney Molloy explained that since the Zoning Board of Appeals Hearing of June 16th, she has had discussions with the Building Commissioner and she has outlined in greater detail the operation on the site. The Building Commissioner had requested an opinion from the Legal Department, which he received earlier today. Based on her conversations with the Building Commissioner, when he received the information from the Legal Department, he would be revoking his Cease and Desist Order in which case they would withdraw this appeal. The Building Commissioner did not have an opportunity to review the letter from the Legal Department before the Hearing tonight and therefore Attorney Molloy requested a continuance. Attorney Patrick Butler addressed the Board. He has been retained by some abutters (Troutman, Fenney, and Mason). He indicated there are still a number of outstanding issues and he would endorse the request for a continuance. The Board decided to continue Appeal Number 1999-71 to September 01, 1999 @ 7:30 PM. 2 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1999-71 -Tri/Cillis Appeal of the Building Commissioner Board Members hearing this appeal on September 01, 1999 were Gene Burman, Ron Jansson, Gail Nightingale, Richard Boy, and Chairman Emmett Glynn. Brenda Tri and Victor Cillis represented themselves at this hearing. Ms. Tri addressed the Board and reported she had just received a letter(dated September 1, 1999)from the Building Commissioner. The letter states ...."We are of the opinion that Ms.Tri may withdraw her appeal and accept the fact that the cease and desist was in order." Although, she would like to request the appeal be withdrawn, she did not accept the fact that the cease and desist was in order. Mr. Cillis and Ms.Tri have been talking with the Building Commissioner and after some discussions and submittal of paperwork he told them they were in compliance and they came to an agreement. Based on that agreement, this letter was written. She accepts everything in the letter, except that one line. The Building Commissioner was not present to answer any questions. Attorney Butler addressed the Board. He has been retained by some abutters (Troutman, Fenney, and Mason). He reported that they have tried to sit down with all parties and come to some kind of agreement. They have made some progress, but all the issues have not been resolved. They may need to bring in a third party to help with mediation. Although Ms. Tri did not agree completely with everything in the Building Commissioner's letter, she requested this appeal be withdrawn without prejudice. This is done with the understanding that if this cease and desist is reissued or any other cease and desist is put in place, they have the right to appeal that to the Zoning Board of Appeals. Decision: Per applicants' request, a motion was duly made and seconded to allow Appeal Number 1999-71 to be withdrawn without prejudice. The Vote was as follows: AYE: Gene Burman, Ron Jansson, Gail Nightingale, Richard Boy, and Chairman Emmett Glynn NAY: None Order: Appeal Number 1999-71 has been Withdrawn Without Prejudice. Appeals of this decision, if any, shall be made pursuant to MGL Chapter 40A, Section 17, within twenty(20) days after the date of the filing of this decision. A copy of which must be filed in the office of the Town Clerk. Emmett Glynn, Chairman Date Signed I Linda Hutchenrider, Clerk of the Town of Barnstable, Barnstable County, Massachusetts, hereby certify that twenty(20) days have elapsed since the Zoning Board of Appeals filed this decision and that no appeal of the decision has been filed in the office of the Town Clerk. Signed and sealed this day of under the pains and penalties of perjury. Linda Hutchenrider, Town Clerk 3 Town of Barnstable Planning Department Staff Report Appeal Number 1999-71 -Tri/Cillis Appeal of the Building Commissioner Date: June 8, 1999 To: Zoning Bo f Appeals From: Approved By: Robert P. ch , AICP, Planning Director Reviewed By: Art Traczyk, Principal Planner Drafted By: Alan Twarog,Associate Planner Applicants: Brenda Tri and Victor Cillis Property Address: 2051 Main Street, Barnstable/West Barnstable Assessor's Map/Parcel: Map 216, Parcels 076W00&076B00 Area: 5.19 acres Zoning: RF Residential F Zoning District Groundwater Overlay: AP Aquifer Protection District Filed:March 8, 1999 Hearing:June 16, 1999 Decision Due:August 15, 1999(includes a 60-day extension) Background: The property that is the subject of this appeal is a 5.19 acre lot commonly addressed as 2051 Main Street, West Barnstable. It is'developed with a two-story, 4,088 sq. ft. single-family dwelling and an accessory barn structure. The property is currently being used for the raising, keeping and boarding of horses. In addition, the applicants also offer horseback riding lessons for both horse boarders and non-boarders. On February 5, 1999, the applicants were ordered to Cease and Desist the use of the property as a commercial riding academy, as defined in a letter dated February 5, 1999 from the Building Commissioner. The Cease and Desist order refers only to the riding programs for the public area not associated with the purchase of a horse. The Building Commissioner has agreed that the raising of horses is agriculturally exempt t:ut is of the opinion that providing riding instruction to the general public is a commercial endeavor that is not exempt from zoning. The applicants are appealing this decision of the Building Commissioner. They contend that the property is a farm used primarily for the raising, keeping and boarding of horses, and that the use of the property for horseback riding lessons is incidental and accessory to the primary use. They further contend that this use (both raising, keeping and boarding horses, and offering horseback riding lessons)constitutes an agricultural use that is exempt under Section 2-4.1(3) of Barnstable's Zoning Ordinance and under Section 3 of Chapter 40A of the General Laws of Massachusetts. Staff Review/Comments: The site is located in an RF Residential Zoning District which only allows detached single-family residential dwellings as a principal permitted use of land. However, the keeping, stabling and maintenance of horses are allowed in all residential districts as an accessory use subject to the provisions of Section 3-1.1(2)(B) of the Zoning Ordinance. Paragraph a)of these provisions requires that"Horses are not kept for economic gain." However, the applicants are not claiming that the present use of their property is an accessory use as defined in the Town's Zoning Ordinance but rather an exempt agricultural use allowed under Section 2-4.1(3)of the Zoning Ordinance and Section 3 of Chapter 40A of M.G.L. Town of Barnstable-Planning Department-Staff Report 4 Appeal Number 1999-71 -Tri/Cillis Appeal of the Building Commissioner Section 2-4 of the Town's Zoning Ordinance- Unrestricted Uses-allows agricultural uses in all zoning districts. While the Town's Zoning Ordinance and Chapter 40A of M.G.L. do not specifically define agriculture, the meaning of agriculture has been defined and clarified by the courts. The courts have ruled that the raising, keeping and boarding of horses are considered exempt agricultural uses under Section 3 of Chapter 40A of M.G.L. The Annotated Laws of Massachusetts includes the raising of horses in its definition of"farming" and "agriculture". Webster's dictionary also includes the raising of livestock in its definition of"agriculture". The applicants have submitted several state definitions and court cases that deal with this issue for the Board's review. The main issue before the Board is whether or not offering horseback riding lessons falls under an exempt agricultural use. The applicants specifically refer to the Steege case. In this case, the Massachusetts Appeals Court ruled that offering riding instruction at a farm primarily engaged in the raising, keeping and boarding of equines is a permissible incidental and accessory use of an exempt and permissible agricultural use under the state's Zoning Act. However, as stated in his February 5, 1999 letter, the Building Commissioner has made a determination that the applicant's operation of a riding academy is different than the Steege case. In Steege, a riding academy was found to be related to the raising and sale of horses because people needed to learn to ride before they bought a horse. The Building Commissioner has made a determination that there is no such relationship in the applicant's operation of a riding academy. �—� - - Attachments: Application Copies: Petitioners/Applicants , GIS Map Assessor's Cards February 5, 1999 Letter from Building Commissioner March 8, 1999 Memorandum w/attachments • 2 • - -:, • '.: i ' ' .. - •IIIIIIIIIIIIIIIIIIIIIIIIIIIIIU‘.2. '''11217 .. , , • 1 . .. , • 111117. 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BUFFER _____. -- •220 ,...--..,._.. -- ' .-••' /la .. --N , ', /• a . , ..) ( ... .. .." ‘• , ..."" --••• ------- ,--"'-> --z..._,-- - ""--....... ........... /. . . _ ,,. MAP 216 PARCELS 76W00 & 76B00 N BRENDA TR1 & VICTOR CILLIS W ,..... ,:„, s SCALE: 1"=200' rropertyLocation: LVD1 1vIALr JI DAMN b1AWL m.ar-l r: Ll0/V/0/DVV//' Vision ID: 15441 Other ID: Bldg#: 1 Card 1 of 1 Print Date:06/0911999 ■,;�,//',, //�, s . „M1 IT:: IA II.' a U' iti yC, ' ; ,,.,.' v„li�: ,�;,., �"�lI�N�I4 t.:' 3.n„ �4(�,� ,:..r3.;:. s: y�, i.� rr�E:. '� r ,�������. . � .•.s:..s�ur,3..e,4s,c..>�` „xa2'�",'�,-.na:, .....ll>��i^,���'�s.� te�usr.� a»�.� # ,,,.,,h::;�•y�i=�,'i xa �.�. ..,,�rd.ts l&x�.d,v, m� .,' w�r .. .�x:4 +,�<x.^;r�,s�'. t4A. ,�, t�c��� m, ZILLIJ, 1 i ui o&BREI DA M I liescrtp ton o e �aised.. ague .4ssessetl alue Ht:S LAND 130U 16,000 16,000 801 2051 MAIN ST W BARNSTABLE,MA 02668 Barnstable Live,MA ccoun an Tax Dist. 100 Land Cl# ' Per.Prop. SR L R \�VI\\V/TIISI®�1T Life Estate 11 #DL 1 LOT PT 3 Notes: #DL 2 GISID: Tot 16,000 16,000 .:': -;':I1BLTUR0:UP UWNLKJH/P ' glfYf9L/I'.4F,'g JALADA,T,4.,;glop vY JAL'��L'11It,E lL ,�,.o,.. . % kw-TfOtl11?tJcJL''JJI{IBNIJ`{HISl-IlLqr. CILLIS,VICI OK J&BKENUA M 9499!308 12/15/I994 IT V 405,06C L- Yr. Code Assessed Value I Yr. Code Assessed Value Pr. Code Assessed Value FAIRFIELD AFFILIATES 9265/104 07/15/1994 U V , 283,00( A 1999 1300 16,0Ud1998 1300 16,000 ' SHUCK,WENDY B 6799/103 07/15/1989 U V 1 A SHUCK,GERALD G&WENDY B 6179/184 03/15/1988 U V 1 A SHUCK,GERALD G 4955/185 03/15/1986 U V 165,000 .N ELLIS,BRUCE W C 4787/221 11/15/1985 U V 25,000 N I Total] 16,0001 b eat: 16,00q Totali 26,800 £YIMP%IUNJ ; U K A:J 1JMLatG0IJ 'w This signature acknowledges a visit by a Data Collector or Assessor .J"a. �, ... i. x�4 s..:= „5 ,. 1,, ,v,5efY, �,a£'�£'issam ,"k x ate.hw,c axstw,„>yy �aa�. , � 'Y��s zt-�?* _ Year - ' type/ escription amount bode liescrtptton lumber mount Comm.tint. ry"" s warV:. itesti i Appraised Bldg.Value(Card) 0 Appraised XF(B)Value(Bldg) 0 Appraised OB(L)Value(Bldg) 0 Total Appraised -. ,g. Ap r lsed Land Value(Bldg) 16,UU 0 rStitA al�� i i::ii. ; l gg,c v ,, - ' sY� ROMP'zI .: ' s .r . e�� "7: aS • Special Land Value Total Appraised Card Value 16,000 Total Appraised Parcel Value 16,000 Valuation Method: Cost/Market Valuation Net Total Appraised Parcel Value 16,000 ,, a« -. :>•, , . .,r.„ ��Jr ,,,r ; , -Ins" . Iva, P:, ... s:. e. alb :� ,� ;k g.,Y r 1.,,, . .vim.,... g� ,v r f a, : .., s s ''�., '� 9. �,:.. N.. .a.„ 1 �. �„+. ,� , v�..> �..d�a4a+�1:� it'sa' �°e�`, l;r,a -„n �� »'�R.w �ns�.,s"'<,.. ,��' i•,L.�u{� �p;>,.6 >>",�R¢'ermir,L " ..s, e „<,;<,, ..p: td s;..x,;, .hk'.,,.,�. �s ..,.. — �.f< wo�2...: insp. ° - .. . ., .'+ a �� ?u e/Resuit ermtt�L� Issue late Type Uesenptton Amount l ate o mp. e omp. 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Fs ...Zvi, .o3,Lan— h., v,.;�:;,.., ,, :"., $ 'a,. . ,. �. m �.,.... <.. ... ,. ._' n ..'N�,.s> ..•iF%,�, '��u. -�,. ,n..�a, sue.: M,ak x� ,w. >..M, n ..�<��. 3. �+ ;�.�a"".Y::fir .;�b��:- . , ;., ,s:..�:�e3.d, ,�:fin"m �:, ,.;1 t<,:�...,r.atksa ,.,,.. ���>..,nrr 3,� �i.t�a.s,..,a ..,,t.�.r �,.. �.,. ., a. .,d �,: .'�rr�..;..a+ y��° <. : ,,. tie B#f Ose Cade 1 Description 1 6one 1 D f trontagei Dept); 1 netts I���lrtce1 �1'actor J.1. t. actor bla r t j,1 Notes-Ad) pieta "demi I Adj. &tut price ( Lan aue 1 1300 ac Land 1 5 2.15 A 16,500.0 I.UU 5 1.0 80AC 0.4 YCL(5.,U14)Notes:14 lACRE 7,425.00 16,000 T. i7 Total Land Untu 2.15 AEI otal Land Value 16,000 rruperryl.ocanon: ZUD11VIAINa,11SAIIII IAISLI; MAPID: 216/076/B00/I Vision ID:15441 Other ID: Bldg#: 1 Card 1 of 1 Print Date:06/09/1999 i,�t? r;.�,y:.. � :. � n�� v; �. .i,t, t .,k .. ti..0 n. fk'l•b bJ�A��'' tiF � y�� A �+ �, � �. „r4}� R �. ,f, •,Ir .a, '2 �,° � z ,b:'. at � �w .u4 ..n�r r.. ,a,"tu. n r,: 1� � .., "lemenl (, , I eserip ton Gommert:ea a eaten s • $tylei type 99 scant Land Btement Ca. Ch. Description Model 00 aeant I eat&AC Grade I came Type Stories is aths/Plumbing Occupancy eiling/Wall • I'ooms/Prtns Exterior Wall 1 A Common Wall • 2 all Height Roof Structure Roof Cover : Interior Wall I : ti �. ;e ? 2 emen o e escrip eon a or Interior Floor 1 'omplex , 2 loor Adj nit Location • Heating Fuel I umber of Units • Heating Type AC Type umber of Levels Yo Ownership Bedrooms Bathrooms ' t� ase to Total Rooms size Adj.Factor .00000 Bath Typeade(Q)Index .00 •dj.Base Rate .00 Kitchen Style I:ldg.Value New ear Built I if.Year Built rml Physcl Dep 00 I uncnl Obslnc I on Obslnc — —_-- �,6 .pecl.Cond.Code r,at°�< i��,rig pecl Cond o e I escnp ion ercentage verall%Cond. 0 1300 Vac Land 100 IDeprec.Bldg Value 0 g 1 UB 11U:1BU1L,U1N(reidc YARD/1LMS(LJ/X1 BU L 1LDJNG XIXA 1'LAl UR S(B)• a .c�", .r.7Ezr.� ;,� 'r. :,.,b<.i:.,kf aa'i e' kr,.•. bzus_r �. �wa4s rw.,. '�+r:e,, .y,..''Yu., ode Description /.11 U'nels Unit Price Yr. up Kt Attna Apr..katue �IID_ Code bescnption veng Area`t ross•.lren E, Area Unit Cost ndeprec.11al ue Ti!. Gross Liv/Lease Area 0 0 0 Bldg Val: a•vrc,,1.ve.sasv,f: irv71 1at%A.D 1 TV DtiM110 /YIAC IIJ: clot V/Ot W VW I Vision ID: 15442 Other ID: Bldg#: 1 Card 1 of 1 Print Date:06/09/1999 VAM�'.�a`.°�'°� ,,,,y' 'Min NEVA r,. ft ,40 _ r MAIL° v V a ` Y a', ® --''u ef 1 , • . • . : '+ • t • , . , Descrtp ton o'a ppra:s ''a ue ssessed value LAND 1010 60,1U 60,100 801 051 MAIN ST I I I I ,RESIDNTL 1010 228,10C 228,100 BARNSTABLE,MA 02668 p g • SIDNTL 1010 10,40C 10,400 Barnstable Live,MA v� S . fib$. p;•r I.S,'X P`t °.UY•'4 ,`' '��D vn.% °.�t5:± k.t:�'oun I an .. .. ax Dist. 500 Land Ct# er.Prop. #SR �� Life Estate DL 1 LOT PT 3 Notes: SIOD •DL2 GIS ID: T ota• 298,601 298,6U I yam.. . -Fu3y"`P A,z";.s �" n� ���.�� chMs ,asarb .� „.,, ,csgc, s�`? k rt� � i.k•# � , r.-.. , ' • •+ •1 • • i: ''• I '. •I ,I I I 'r. a•• r mi� a[ ssesse Value Yr. I Code Assessed Value 1 AIRFIELD AFFILIATES 9265/104 07/15/199' U V 283,001 A '.. 1 1 .t, 1 s : i 1 60,10U HUCK,WENDY B 6799/103 07/15/198' U V 1 A 199' 1010 228,10 i i I 228,100 .RUCK,GERALD G&WENDY B 6179/184 03/15/198: U V 1 A 199' 1010 10,401 HUCK,GERALD G 4955/185 03/15/198 i U V 165,001 N i LLIS,BRUCE W C 4787/221 I1/15/198 U V I 25,001 N o a. 7.98,.I I ota. 238,2OU Iotal. 295,1 ® d y fi , M� � ' N ° 5 iofi ,:,,,,,!,;,,,A,i r 4,tA #45 i s t ' I•hts signature acknowledges a visit by a Data Co lector or Assessor �� ,,?ks a s.� ��,Y�i u3�".:�a� ��dl�, rot".P,.X�"�:.t.< "+,,fin, z ,•r" ,r�,. a �.m_ Appraised Bldg.Value(Card) 222,30 Appraised XF(B)Value(Bldg) 5,80 Appraised OB Value(Bldg) 10,40 PP �) ° 8. 4 �� 1 .� Appraised Lan Value(Bldg) 60,10 � E ' Vim. : E :,`' ,, .�. t,i4 Special Land Value 1 ' : 1 1 Total Appraised Card Value 298,6i Total Appraised Parcel Value 298,61 Valuation Method: Cost/Market Valuatit I et Total Appraised Parcel Value 298,6( C I Desert], .._ s a e 'O omp i a e omp. Fr 'ermi ssue Site �pe on mount nsp. omments safe LK § 01 k 'urpos- 'esu t 19583 11/26/96 AD Addition 55,001 8/19/97 0 i of start 8/19/97 eas/Est B31791 4/1/88 ND 380,00 I 1/15/89 100 ` : 1 STOR cltIk " , ;n:..:.t s ,� ..• ' °.��:.Troy. �? •r fx'1a kd -3� ''5 1�0� '' 7,1 v '° /se o e Description one s rontage Dept Inits Intl 'rice - actor . . . actor '• . J. 'otes- •j pecta 'nctng Adj. UnttPrice I Land Value 1 1U1O Ingle Fam 5 1 1.00 A• 100,000.01 1.01 5 1.01 BOAC 0.45i'PCL(1.,U10)Notes:10 1 BLJ(, 45,000.0t 45,01 1 1010 Single Fam 5 5 2.04 A• 16,500.01 1.0 i 5 1.00 BOAC 0.4 PCL(5.,U14)Notes:14 1ACRE 7,425.0 15,11 Total Land Unit 3.04 A(j Total Land Valul 60,11 rropenyLocation: 2051MAINSi' •WBARNS MAPID: 216/076/W00// i Vision ID:15442 Other ID: Bldg#: 1 Card 1 of 1 Pram Date:06/09/1999 ` r.t,•?'�r4d ,�m�., z1> ,• {x `kn`I' 4� _ -. S ;.•, ., a °cp. i ' s y;c ,rs • - j `.`.+ `'i7' � �.... a�`:. 4!ek��k*�+,nvk�'. « +ao-wr�a..'�,a. t,r � ;�-' 1 ,��. .�.- w �• '1 3 ° M1 Wr, lnn �,n' i,ii 9 .¢,a�b�l s+l�.=�5 k ."�i'i4"�tn,:FA', a-.i.;�Wt�P �"}.c� tp -�L'e5 .biY Tva rsXn: �•W�A af'3,y'1,-,,,,,,,,,,,, lenient 2 d LJescnptton f ommereial Ida temen " ` ty1G/I ypG 03 Colonial dement Cd. Ch. Description I odel 01 Residential Heat&AC - de OB B Frame Type Baths/Plumbing .tones 2 2 Stories 4. •ccupancy 00 Ceiling/Wall US Rooms/Prtns UUS BM i xterior Wall 1 14 Wood Shingle '/o Common Wall •!.. i a p ' ' 2 11 Clapboard ' BM p Wall Height 21 4 FCP ►4 oof Shvcture 03 Gable/Hip ►6 ::16 1• 16 1: r oof Cover 03 Asph/F Gls/Cmp foia i nterior Wall I 03 Plastered { � k-81' '��t . ,,i1 r, 2 ement 0,a escnp ton sic or 28 I tenor Floor 1 14 Carpet Complex 48 2 12 Hardwood Floor Adj Unit Location I eating Fuel 02 Oil I eating Type 05 Hot Water Number of Units •C Type 01 None Number of Levels %Ownership 1:edrooms 05 5 Bedrooms athrooms 2.5 2 1/2 Bathrms rr �/ye .° m , "- ;. t Y 21 2 Full+1/2 �na•I. :ase '• .11 otal Rooms 10 10 Rooms Size Adj.Factor 0.87368 Grade(Q)Index 1.31 is ath Type Adj.Base Rate 54.94 I itchen Style Bldg.Value New 244,318 Year Built 1988 Eff.Year Built 1988 Nrml Physcl Dep 9 •• ` Funcnl Obslnc 0 • Econ Obslnc 0 ' ° . t Azg on ; }k.?Ng ; peel.Condo Code o,e 0escnption 'ercen age peel Conti% 10I0 :Ingle ham 100 Overall%Conti. 91 Deprec.Bldg Value 222,300 x f tt UB UL/1$UILUI/Vfr Kc.YARD ITLMS(L)/XF,BUILDING F.X�:RA PEAT UKLS(B) •:«#. ,,. _ids,.x 4-^,. ;..- ?: .. -•'. ' ;;�- z? , sir .,�5 1', '�-'x;: ,.r :, 4' ..�s:„ Yra.;.3:3 Co a Description L/t Units Unit Price }fir. DP Kt % nd Apr, {eiue F•PLZ rrepl-1/2 Sty B 2 3,200.0C 1988 I 100 5,800, BRN3 am 1 Sty/Lt L 1,600 6.50 1997 1 100 10,400 ;N RLIVGA(q!174 Bk .` L j .-;sue.. r.e .�yy°b.x U.z., �3vvyyf .. n..�'y /,F b ,�.'^, , y A } _. IT (.ode" Uescriptlon L/vmg Area tiros:Area Gj Area (/nit Lost' (Yn[eprec.value-� BAS First Floor 1,824 I, 1,824 54.9 100,21 FCP Carport 0 16 32 10.9 1,758 FGR Attached Garage 72 255 19.2 14,01 FOP Porch,Open,Finished 12 26 11.1 1,42 FUS Upper Story,Finished 1,53 1,53 1,536 54.9 84,38 UBM Basement,Unfinished 1,824 365 10.99 20,05 UUS Upper Story,Unfinished 728 364 27.47 19,99 WDK Wood Deck 448 45 5.52 2,472 TtL Gross Liv/Lease Area 3,360 7376 4,447 Bldg Val: 244,318 ...( . . . . =i . • 1 IAA ( I F R K ' • THE ZONING BELIEF BEING SOUGHT HA i - BEEN DETERMINED BY THE ZONING 8 A i'',N 7;,i;! i• _ m A Tsmfti OF BARNSTABLE ENFORCEMENT OFFICER TO :• zoning board of•Appeelb B.,B APPROPRIATE RELIEF GIVEN THESE allpfialgiat IV for Other revere CIRCUMSTANCES, .; 99 MAR —8 p3 :44 • . , . . . . . Date Received •. • . For offtoe uee otillej . • Town clerk office - -1-APPeul O. . • -'n 11 2 II -DatelriftInt: ' .----- ---- . ii, . 11 k.1 • • The undersigned hereby applies t tiabitiSiler• riAppeals for the reaeonn .. ' indicated* I..„ J • • i . TOWN OFI3ARNSTABLE . Applicant Names -Br tasiasrijuid...2 -- ---- ---.1NrtrroPT`i0FAPPEALS.J , Phone _1.191 .152 Applicant Address' 2051 Main Street, • Property Location: sa.II2P -- • . . This in o request fors . • . . . • _ - : . .• _ • i] Enforcement Action . . Pi Appeal of Administrative officials Decisibn , •. 11 Repetitive petitions . - . - II Appeal from the zoning Administrator . . (1 other General powers -....Please Specify!. . - Please Provide the yellowing information (aa applicable)s -. . Property Omer: same as appl i rani- - , •, phone Addraew of owners -see ab6ve . 2.--.__._..;-------- Xf•applicant differs from owner, arate.eature of Intermits - --- . . • •• ( •...;1 .1 eL ' -'i ASSOBBOrig Nap/Parcel Number -..._ i_..,, , ,)()0 . L." < zoning District ' --..R7:::--- • . , I Mile' ' - Groundwater overlay District , i . M • . • . , • . . Which Section(e) of the zoning ordinance and/or of mar. chapter 40A are you appealing to the zoning Board of Appeals? .. .. . . . . • . rrietistg Level of Development oZ the property - Number of Buildings: _2__ ___--- Preeewt Vae(s)s 21ainsieur.,A—R-Ad—gazoil.—.. 1=0OG Floor Areal _________ all- ft. . . , • . E 'd 88Z9 06L 60S 'ON XYA Id3VONINNVId 'a1OYISNSYEI NM ilE:E INS 66-9 -am • Applicat asother Powers - .. • . Nature j Deacziptiab of Request: c: !? 0; „ __ - . • . • -- • Attached separate sheer if needed. Is the property located in an Historic District? ' Yes el NO [) If yea MD Use Onlvv . ' Plan Review Number - —__ . - Date Approved., is the building a designated Historic Landmark? 'Yes [I NO liX If yea HiatPriC Preserveition Department use Only, Date Approved Sas a building permit been applied for? • ..Yes (] No [ . • sas•theBuilding inspector refused A permit?. e Yea" II No [�3"'. sal the property been before site plan Review?- Yes [j ,No [( For B L 14[ig-Department Use only: Rot Required - Single Family [) • Sit. Plan Review Number . Date Approved • signatures . . .. The following information must be submitted with the application at the • time of filing, failure to supply this may result in a denial of your request: Three (3) copies of the completed application form, each with original signatures. • Three (3) copies of all attachments as may be required for standing before the Board and for clear understanding of your appeal. The applicant may submit any additional supporting documents to assist the Board in making its determination. q l �� ,J a Dates 3/8/99 Signatures ffipplicant or A e Pa nature: Agent's Address: . Pepe & Hazard LLP �. phone; ( 617 -695 090 150 Federal Street (617) 695-9255 - BOston, MA 02110 Fax No. I► 'd 8E9 06L 80S 'ON XVd ,Ldau '9NINNV7d 'a1avLSN8V6 Nid 5E:E 1VS 66-9 -BVIY • Notice For Public Hearing The following are the most recent names .mailing addresses and corresponding Assessor's Map & Parcel Numbers of .the abutting property : owners, the owners of land directly opposite on any public or private street or way, and all abutters to the abutters within'three hundred (300) ' feet of the property lines of the subject property. • • assessor's • - • •• - • Nap 8 Parcel Number Owner's Name Address - sik • 6 • .i . • in 9--: cda i p • •• • • * NOTION * Upon submission of application, it is required that all facts and documentation- necessary to support- the relief being sought • be presented by the applicant. The failure of which may result in the denial of the application at the scheduled hearing. • • • S 'd 88Z9 06L 809 '0K XVd Ina 'OKINNV1d 'd18V1,SK8Va Yid 58:E 1VS 66-9 -BVAI Nature and Description of Request to Zoning Board of Appeals The Applicants,Brenda Tri and Victor Cillis,M.D., appeal a Cease and Desist Order issued by the Building Commissioner on February 5, 1999, pursuant to which the Building Commissioner stated that they "must Cease and Desist the use of your property as a commercial riding academy at once." (See Exhibit A) As set forth in the attached Memorandum (see Exhibit B) fully outlining this matter, this order violates Section 3 of Chapter 40A and Section 2-4.1(3) of the Town of Barnstable Zoning Ordinances, both of which specifically permit agricultural uses. As set forth in Exhibit B, the property is a farm used primarily for the raising, keeping and boarding of horses, incidental and accessory to which horseback riding lessons are offered. This use (both raising, keeping and boarding horses, and offering horseback riding lessons) constitutes an agriculture use as defined in both Section 2-4.1(3) of the Town of Barnstable Zoning Ordinances, Section 3 of Chapter 40A of the General Laws, and various other state statutes,including: Chapter 61A, Section 1 (see Exhibit B(1)) Chapter 111, Sections 1, 155, 158 ((see Exhibit B(2)) Chapter 128, Sections 1, 1A,2,2A,2B,2D(see Exhibit B(3)): Accordingly,while the Applicants specifically reserve their rights as to whether they are required to abide by this Cease and Desist Order or to seek review from this Zoning Board of Appeals,the Applicants hereby request that this Zoning Board of Appeals overturn and rescind this Cease and Desist Order. r° MEMORANDUM TO: Zoning Board of Appeals Town of Barnstable FROM: Julie C. Molloy,Esq. Attorney for Applicants, Brenda Tri & Victor Cillis, M.D. DATE: March 8, 1999 RE: Appeal of Building Commissioner's Cease & Desist Order Dated February 5, 1999, re: 2051 Main Street,West Barnstable As set forth in the Applicant's application, the Applicants request that this Zoning Board of Appeals overturn and rescind a Cease and Desist Order issued by the Town of Barnstable Building Commissioner on February 5, 1999.1 As grounds for this request, the Applicants state that all uses of the property (including the horseback riding lessons offered on the premises), which is hereinafter referred to as the"Farm", constitute agricultural uses specifically permitted by Section 2-4.1(3) of the Town of Barnstable Zoning Ordinances and Section 3 of Chapter 40A of the Massachusetts General Laws. Steege v. Board of Appeals of Stow, 26 Mass. App. Ct. 970, 527 N.E.2d 1176(1988) (the purchase, raising, stabling and training of equines2, including training of the equines , through operation of the riding school and participation in horse shows are all part of the. one whole and constitute agriculture as that phrase is used in c. 40A, §3) (see Exhibit 4) • Applicants note at the outset that the Building Commissioner agrees that the raising, keeping and boarding of equines is a permissible and exempt agricultural use under Section 3 of Chapter 40A because the Applicants' Farm is greater than five (5) acres (and indeed is seven(7)acres), and.that the Cease and Desist Order(and alleged violations of the Town of Barnstable Zoning Ordinances) pertains only to the offering of horseback riding lessons to the public. Applicants' factual and legal support for their position are set forth in the pages that follow. I Applicants submit this appeal under protest, on the grounds that because the operation of the riding school is an agricultural use and,therefore exempt from the proscriptions of the Town of Barnstable's zoning ordinance prohibiting commercial activities in residential areas. G. L. c.40A,s. 3;G. L.c. 128,ss. 1, IA, 2A,2B,and 2D; see also Steege v. Board of Appeals of Stow,26 Mass.App.Ct.970, 527 N.E.2d 1176, 1177 (1988). 2"Equine" is used herein as defined in Section 2D of Chapter 128,which states that"equine"means"a horse,pony,mule or donkey." G. L.c. 128,s. 2D(a). I. Facts The Primary Purpose of the Farm is the Raising,Keeping and Boarding of Equines The primary function of the Farm is the raising, keeping and boarding of equines. At present,the Applicants are raising and keeping equines of their own(two horses and two miniature horses), and board and train five horses and three ponies, for a total of ten equines. In connection with the boarding of equines, Applicants are responsible for the day-to-day care and maintenance of each equine, including daily turn-out and exercise, feeding, supervision of medical and health care, and ensuring that each equine is properly bedded down each night. Of the equines boarded, several are younger equines who are being raised here at the farm. Applicants also provide riding instruction to many of the owners boarding their equines here at the Farm, because they seek to both develop and advance their riding skills and that of their equines, which many riders will tell you is a life-long process. Some individuals have pursued riding instruction here and elsewhere in order to develop elementary riding skills sufficient to enable them to purchase an equine of their own,which is then boarded here at the Farm. For those newer owners who are beginner riders, the Riding School not only provides them with an opportunity to further advance their riding skills, but also an opportunity to train the equines ridden to become :.- ' accustomed to inexperienced riders. Horses live anywhere from twenty to thirty years, and do not fully mature until somewhere'between their tenth and twelfth:year,depending upon the individual. Many of the equines boarded here are under that age, and are still being raised. Indeed, since equines are domesticated animals dependent upon humans for their care and well-being, the raising of equines is a life-long task. Having just opened their farm recently, as yet none of the equines in their care have given birth at Applicants' Farm, although they certainly do hope that this will happen someday. In addition to raising, keeping and boarding equines at the farm, Applicants have counseled and assisted individuals with both the purchase and sale of equines. Riding Instruction is Offered Incidentally and as an Accessory to Raising, Keeping and Boarding Equines. In addition to offering riding instruction to boarders,Applicants also offer riding instruction to non-boarders, many of whom hope to obtain sufficient skills to enable them to purchase a horse or pony of their own one day. The riding instruction offered at the Farm by the Applicants is incidental to the Farm's primary function of raising, keeping and boarding equines, and the Farm's revenues reflect that. Moreover, unlike some area riding academies, the Applicants do not presently advertise in local newspapers, nor in the telephone book. Most advertising comes from word-of-mouth. II. Law State Zoning Act Permits Agriculture and Limits Cities' and Towns' Authority to Restrict Agricultural Uses of Land Where Parcel Exceed Five Acres. The cities and towns of the Commonwealth are permitted to enact zoning by-laws and ordinances pursuant to and in accordance with the limitations set forth in Chapter 40A of the General Laws. Section 3 of Chapter 40A specifically limits the ability and authority of cities and towns to prohibit and/or regulate certain activities, including land for which the primary purpose and use is agriculture, where the land so used is more than five acres in size. Specifically, Section 3 of Chapter 40A states (in pertinent part): No zoning ordinance or by-law shall prohibit or unreasonably regulate or require a special permit for the use of land for the primary purpose of agriculture ...; nor prohibit, unreasonably regulate or require a special permit for the use, expansion or reconstruction of existing structures thereon for the primary purpose of agriculture ..; except that all such activities may be limited to parcels of more than five acres in an area not zoned for agriculture. ... G. L. c. 40A, s. 3. The Town of Barnstable Permits Agricultural Uses in All Zoning Districts, Without Limitation as to the Size of the Parcel of Land. The Town of Barnstable Zoning Ordinances are more generous than the state statute, allowing agricultural uses in all zoning districts,without any limitation as to the acreage needed for such uses: The following uses and structures are permitted in all zoning districts: 1. Church and other religious use. 2. Educational use (public, sectarian, religious, denominational). 3. Agricultural, horticultural or floricultural use, including farms and the growing of fruits,vegetables or other produce,the maintenance of a greenhouse or nursery and the sale on the premises of produce grown on the premises. 4. Municipal or water supply use. 5. Municipal recreation use, including recreational activities conducted on town-owned land under the terms of a lease approved by Town Council. In the case of such a lease, any improvements or changes to such town-owned land shall be subject to the approval of a committee of five(5) residents appointed by the Town Manager, at least two (2) of whom shall be from the precinct in which the land is located. Town of Barnstable Zoning Ordinances, Section 2-4.1 (emphasis added). Accordingly; while the Town does not require, as does the state statute, that an agricultural use is only protected if the parcel of land in question exceed five acres, the Applicants nonetheless meet this state criteria as their farm has more than five acres. Applicants acknowledge that the Town of Barnstable has the authority to regulate, and indeed does regulate, the number of equines permitted in its Zoning Ordinances. Town of Barnstable Zoning Ordinances, in the RF district where the farm is located, we are permitted to keep, stable and maintain at least twenty-five horses. (Town of Barnstable Zoning Ordinances, Sections 3-1.1(2)(b) and 3-1.4) Applicants are in compliance with these limitations, having only ten(10) equines on their seven-acre Farm, and further state that in accordance with the Town's Ordinances, they are permitted to have up to at least twenty-five(25) equines on their Farm. Town of Barnstable Zoning Ordinances, in the RF district where the farm is located, we are permitted to keep, stable and maintain at least twenty-five horses. (Town of Barnstable Zoning Ordinances, Sections 3-1.1(2)(b) and 3-1.4) Offering Horseback Riding Lessons is Incidental and Accessory to the Farm's Primary Activity of Raising,Keeping and Boarding Equines The highest court in this state, the Supreme Judicial Court, decided in a recent (1994)case regarding the agricultural exemption to the state Zoning Act that"uses which are 'incidental' to a permissible agricultural activity fall within the agricultural exemption of Zoning Act. Henry v. Board of Appeals of Dunstable, 418 Mass. 841, 844, 641 N.E.2d 1334, 1336 (1994) (see Exhibit 6). A use is accessory or incidental to a exempt agricultural use where it is: "necessary, expected or convenient in conjunction with the principal use of the land." 6 P.J. Rohan, Zoning and Land Use Controls, §40A.01, at 40 A-3(1994). The term "incidental" in zoning by-laws or ordinances incorporates two concepts: "It means that the use must not be the primary use of the.property but rather one which is subordinate and minor in significance... But'incidental',,when used to define an accessory • use, must also incorporate the concept of reasonable relationship with the primary use. • Henry v. Board of Appeals of Dunstable, 418 Mass. at 845, 641 N.E.2d at 1336 (Exhibit 6). Indeed,the Massachusetts Appeals Court in 1988 ruled that offering riding instruction at a farm primarily engaged in the raising, keeping and boarding of equines is a permissible incidental and accessory use of an exempt and permissible agricultural use under the state's Zoning Act. Steege v. Board of Appeals of Stow, 26 Mass. App. Ct. 970, 527 N.E.2d 1176 (1988) (see Exhibit 4). In reaching this conclusion, the Appeals Court affirmed the trial court's determination that ...the purchase and raising of horses, their stabling, training through the operation of the riding school, and their participation in horse shows are all part of the one whole and constitute agriculture as that phrase is used in c. 40A, s. 3. Steege v. Board of Appeals of Stow, 26 Mass. App. Ct. at 972, 527 N.E.2d at 1178 (emphasis added) (Exhibit 4). Certainly offering horseback riding instruction is an activity which bears a reasonable, rational and indeed logical relationship to the raising, keeping and boarding of equines, not only under state law, but also in accordance with good plain common sense. Since it is common, and indeed usual, even for experienced riders to pursue riding instruction on a long-term basis, riding lessons are a"part of the whole" of raising, keeping and boarding of equines. The program for children also has the additional benefit of assuring parents that their child is engaged in a wholesome, healthy, outdoor activity, which has the added benefit of educating them to the care and training of animals and learning about what life must have been like for early settlers of this area, and transportation modes long before the automobile took over our roads. As in the Steege case,the Applicants raise, keepand board equines of varyin g g ages,both young and older, and have also bought and sold equines, and assisted their clients in doing so. As part of the training of both the equines and humans, inexperienced riders ride various horses, in order have the horses become accustomed to inexperienced riders, and vice versa.3 Hopefully, this will lead to the purchase and sale of more horses, some by riders at the Applicants' Farm(who will hopefully then seek to board their horses there, bringing more revenue to the Applicants). Moreover, many parents prefer to allow their child to discover through riding lessons whether the child really is interested in riding, as opposed to a passing fad. This is especially important with respect to the purchase of a horse, a not-inexpensive proposition in terms of both time and money. Offering Riding Lessons is an Agricultural Use Moreover, the simple fact that a riding school could be operated separately from a farm engaged the raising, keeping, and boarding of horses, and might thereby be deemed a prohibited commercial use4, does not mean that in this instance a riding school operated in conjunction with a farm engaged in the raising, keeping and boarding of horses is • anything other than incidental and accessory to the agricultural use of the Farm. Indeed, such an interpretation violates the Legislature's intention in creating an exemption for agricultural uses under the state's Zoning Enabling Act, and would impermissibly permit a city or town to 'exercise its preference' as to what kind of[agricultural] uses'it will welcome,' ... or'to impose special permit requirements...on legitimate[agricultural] uses which have been expressly authorized to exist as of right in any zone. Commissioner of Code Inspection of Worcester v. Worcester Dynamy, Inc., Mass. App. Ct. , 413 N.E.2d 1151 at 1153 (1980). (see Exhibit 5) In considering whether an activity falls within the definition of"agricultural use", the Appeals Court has also held that simply because one aspect of an agricultural use 3 To interpret the Steege case to mean that riding instruction is exempt only where inexperienced riders train equines who are not accustomed to inexperienced young riders requires the bizarre,preposterous and untenable assumption that any such riding school deliberately puts its inexperienced riders at the unconscionable and irresponsible risk of very serious bodily injury, including death and paralysis on a day- to-day basis, making the training of the horses a higher priority than the safety and well-being of human beings above that of the rides. Such an interpretation is unfounded, invalid and, indeed, irresponsible. Similarly,to read the Steege case as requiring the riders to purchase the equines they have trained,or that in order to fall within the exemption that every rider have the specific intention of purchasing an equine, is also unfounded. Nowhere in the Steege case are there any statements requiring either proposition. Steege v.Board of Appeals of Stow,26 Mass. App. Ct. at 972,527 N.E.2d at 1178. (Exhibit 4) 4 Although, as the Board will see,the definitions of agriculture set forth in the General Laws expressly include a riding school as an agricultural use. Since the Town of Barnstable Zoning Ordinances do not define the term"agriculture",one must look to state statutes for their definition of the term. would, if exercised or operated separate and apart from a farm, constitute an industrial use properly prohibited under zoning ordinances, this does not mean that that use is prohibited if done in conjunction with a permissible agricultural use. Modem Continental Construction Co. v. Building Inspector of Natick, 42 Mass. App. Ct. 901, 674 N.E.2d 247 (1997) (see Exhibit 7). In this case, the plaintiff Modern Continental owned and operated a 110 acre farm, for the production and sale of fruit, vegetables, herbs, and livestock, including ostrich, deer, lamb, calves, sheep, goats, chicken, pheasant,peacock, and rabbits. Modern Continental Construction Co. v. Building Inspector of Natick, 42 Mass. App. Ct. at 901, 674 N.E.2d at 247 (Exhibit 7). • In 1993, Modern Continental decided that rather than sending its meat and poultry animals off-premises for slaughtering and processing, that it wished to construct a facility to do so on the premises, and received approval from the U.S. Department of Agriculture to do so. Modem Continental Construction Co. v. Building Inspector of Natick,42 Mass. App. Ct. at 901, 674 N.E.2d at 247 (Exhibit 7). After Modern Continental applied for a building permit to the Building Inspector for the Town of Natick,the Building Inspector denied its application, stating that"a 'slaughterhouse does not comply' with the [Town's] zoning by-law."Modern Continental Construction Co. v. Building Inspector of Natick, 42 Mass. App. Ct. at 902, 674 N.E.2d at 248 (Exhibit 7). The Appeals Court found that the Building Inspector's denial was invalid and violated the agricultural exemption to the state's Zoning Enabling Act, G. L. c. 40A, s. 3, stating that: The fact that an activity, such as slaughtering [of pigs], can become an industrial or business use when removed'from an,agricultural setting does not mean that activity cannot be primarily agricultural in purpose when it has a reasonable or necessary relation to an: agricultural activity when conducted at the locus. Modern Continental Construction Co. v. Building Inspector of Natick, 42 Mass. App. Ct. at 902, 674 N.E.2d at 248 (Exhibit 7). In reaching this conclusion, the Appeals Court pointed out that"the [term] 'agricultural use' exemption has been interpreted broadly by appellate courts"and determined that it was appropriate and necessary to look to the various state statutes defining the term "agriculture", including G. L. c. 61A, s. 1, G. L. c. 111, s. 1 and G. L. c. 128, s. 1 A, as well as dictionaries. Modern Continental Construction Co. v. Building Inspector of Natick, 42 Mass. App. Ct. at 902, 674 N.E.2d at 248 (Exhibit 7). Specifically with respect to slaughterhouses,the Appeals Court held that: [the state's statutes and dictionaries] include within their definitions the definition of preparing animals for market. ... it[is] reasonable to regard the slaughter of animals as a normal and customary part of preparing them for market. It then follows from the acceptably broad definitions of the word 'agriculture' that a slaughterhouse used for the butchery of animals raised[and kept]on the premises is primarily agricultural in purpose. Modern Continental Construction Co. v. Building Inspector of Natick, 42 Mass. App. Ct. at 902, 674 N.E.2d at 248 (Exhibit 7). Here, however, not only is offering horseback riding lessons permitted as an agricultural use because it falls, by implication, within the broad definition of the word 'agriculture', but also because the statutes of this Commonwealth specifically include operation of a riding school and the "keeping of horses as a commercial enterprise", as set forth below: Chapter 61A("Taxation of Agricultural Lands"). Section 1 ("When Land Deemed to be in Agricultural Use."). (See Exhibit 1) Land shall be deemed to be in agricultural use when primarily and directly used in raising animals, including, but not limited to, dairy cattle, beef cattle, poultry, sheep, swine, horses, ponies, mules,goats, bees and fur bearing animals, for the purposes of selling such animals or a product derived from such animals in the regular course of business; or when primarily and directly used in a related manner which is incidental thereto and represents a customary and necessary use.in raising such animals and preparing them or the products derived therefrom for market. Chapter 111 ("Public Health"). Section 1 ("Definitions"). (See Exhibit 2) The following words as used in this chapter, unless different meaning is required by the context or is specifically prescribed, shall have the following meanings: "Farming" or"agriculture", farming in all of its branches and cultivation and tillage of soil, dairying, the producticn, 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, keeping of horses as a commercial enterprise, the keeping and raising of poultry, swine, cattle and other domesticated animals used for farm purposes, bees, fur-bearing animals, and any practices, including forestry or lumbering operations, performed by a farmer, who is hereby defined as one engaged in agriculture o[r]farming as herein defined on a farm as an incident to or in conjunction with such farming operations, including preparations for market, delivery to storage or market or to carriers for transportation to market. Chapter 128 ("Agriculture"), Section 1A("Farming and Agriculture Defined") (See Exhibit 3) "Farming"or"agriculture shall include farming in all of its branches and the 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 or raising of poultry, swine, cattle and other domesticated animals used for food purposes, bees, fur bearing animals, and any forestry or lumbering operations, performed by a farmer, who is hereby defined as one engaged in agriculture o[r]farming as herein defined on a farm as an incident to or in conjunction with such farming operations, including preparations for market, delivery to storage or market or to carriers for transportation to market. Moreover,riding schools and riding instructors are subject to licensing requirements and regulation by the Massachusetts Department of Agriculture, under the state statute defining and regulating agriculture: Chapter 128. Section 2B ("Horse Riding Instructors to Be Licensed: Fees: etc.") (Exhibit 3) The commissioner[of agriculture] shall make rules and regulations governing the issuance and revocation of said license, and shall establish the minimum qualifications for the issuance thereof. If the qualifications of an applicant meet or exceed the minimum qualifications established by the commissioner he shall issue such license. . Chapter 128. Section 2B ("Riding schools and stables: license_fee: rules and regulations:. - penalties") (Exhibit 3). Every person engaged in the business of operating a riding school or stable:where horses are kept for hire, shall obtain a license therefor from the commissioner[of food and agriculture], .... The Commissioner, subject to the approval of the governor may make rules and regulations governing the issuance and revocation of such licenses and the conducting of the businesses so licensed and relative to the maintenance of the premises, buildings and conveyances, the health of the horses and other equine animals, and the method and time of inspection and checking of said animals. ... Section 2D of Chapter 128 limits the liability of equine sponsors, and a copy of that statute is also enclosed in Exhibit 3. Accordingly, by looking at the statutory definitions of agriculture, it is clear that horseback riding schools are clearly included within the definition of agriculture, in Chapters 61A, 111 and 128. Each of these chapters of the General Laws are cited by both the Supreme Judicial Court and the Appeals Court of Massachusetts in the cases where those courts have looked to the state statutes in deciding whether a particular activity constitutes an"agricultural" use. Furthermore, the Massachusetts Department of Revenue recognizes the Applicants' Farm and all of its activities (including the Riding School) as agricultural under Chapter 61 A, and taxes it as such. Therefore, the Building Commissioner's Cease and Desist Order was improperly issued to the Applicants, because their riding school program is an exempt agricultural use. CONCLUSION In conclusion, the Applicants' use of the Farm for both the raising, keeping, boarding of horses, and offering of horseback riding instructions through the Riding School constitute an exempt agricultural use under both state's Zoning Enabling Act, Section 3 of Chapter 40A, and under the Town of Barnstable Zoning Ordinances, Section 2-4.1(3). Additionally, the Farm is located within the Old King's Highway Historic District, which was created by the Old King's Highway Regional Historic Act,the purpose of which was and is to preserve not only the historic appearance of the area, but also the historic culture and activity—including economic activities such as farming, "as [they] existed in the early days of Cape Cod. See Old King's Highway Regional Historic Act, Sections 1 and 3. Additionally, the Act defines the term"Heritage" as follows: "Heritage"-value in the cultural life of the past, because of their importance to the community life of Cape Cod, which have come down through the generations to make up our way of life. This has been achieved by means of old buildings, industry, furniture, utensils, old happenings and expressions. They have made the unique salty flavor of Cape Cod that will never be forgotten but will be preserved for future generations, as a means of insuring the integration of those qualities into a contemporary way of living. _. . Old King's Highway Regional Historic District Act, Section 3. _ What could be more in keeping with the heritage in accordance with the purposes of the Old King's Highway Regional Historic District Act than a working farm, educating today's children, through hands-on experience, about the care and raising of what was once the primary mode of transportation of residents of the Town of Barnstable, and the primary livelihood of its residents? However, as the town board charged with enforcement of our zoning ordinances, the only relevant considerations are whether the horseback riding lessons offered through the Farm's Riding School constitutes an agricultural use,or are an incidental an accessory use of an agricultural activity, which, as set forth above, it unquestionably is. Accordingly, Applicants Brenda Tri and Victor Cillis, M.D. hereby request that this Zoning Board of Appeals overturn and rescind the Cease and Desist Order issued by the Building Commissioner on February 5, 1999. 00He .w s,_ The Town of I:arnstable eAnsresca~ • �e 9. 1 Department of Health Safety and Environmental Services E ot" Building Division 367 Main Street,Hyannis MA 02601 Office: 508-862-4038 Ralph Crossen Fax: 508-790-6230 Building Commissioner February 5, 1999 Victor and Brenda Cillis 2051 Main Street West Barnstable,MA 02668 Re: 2051 Main Street,West Barnstable,MA Dear Mr.and Mrs.Cillis: We are in receipt of the letter from Douglas Gillespie of the Massachusetts Farm Bureau Federation,Inc. (with enclosures)dated February 1, 1999 and have the following reply. While we agree that agricultural uses benefit from a broad range of zoning exemptions,we feel that all need to be reviewed by my office first in order to be found exempt. To begin with,we all agree that the raising of horses is agriculturally exempt. In fact,the letter you had sent to us quotes and enc:oses the"Steege"case in support of your situation. The difference we see is that in Steege,a riding academy was found to be related to the raising and sale of horses because people needed to learn to ride before they bought a horse. In your case,there is no such relationship. In fact,the act of providing riding instruction by you is purely a commercial endeavor and,in our opinion,not exempt from zoning. You must Cease and Desist the use of your property as a commercial riding academy at once. This order refers to only the riding programs for the public area not associated with the purchase of a horse. You have the right to appeal this decision. If you so choose,we will be more than happy to help you. Sincerely, Ralph M.Crossen Building Commissioner RMC/km Via Certified Mail P 3:39 592 443 .R R,R._ g990205a C. 61A ANNOTATED LAWS OF MASSACHUSETTS § 1 19A. Certificates as to conveyance or roll-back taxes. 20. Agricultural, etc., lands considered to be assessed as other taxable property for any other purpose; valuation for equalization. 21. Factual details shown on tax list of board of assessors relative to agricultural, etc., lands to be same as that of other taxable property. 22. Commissioner of revenue to promulgate rules and regulations, forms and procedures. 23. Tax evasion; penalty. 24. Severability provision. VERALEX®: Cases and annotations referred to herein can be further researched through the VERALEX electronic retrieval system's two services, Auto-cite® and SHOWME®. Use Auto-cite to check citations for form, parallel references, prior and later history, and annota- tion references. Use SHOWME to display the full text- of cases and annotations. § 1. \When Land Deemed to be in Agricultural Use - Land shall be deemed to'be in agricultural use when primarily and directly used in raising animals, including, but not limited to,:dairy cattle, beef cattle, poultry, sheep, swine, horses, ponies, mules, goats, bees and fur-bearing animals, for the purpose of selling such animals or'a product derived from such animals in the regular course of business; or when primarily and directly used in a related manner which is incidental thereto and represents a customary and necessary use in raising such animals and preparing them or the products derived therefrom for market. (1973, 1118, § 1.) Editorial Note-- Sections 2 and 3 of the inserting act provide as follows: SECTION 2. Notwithstanding the provisions of chapter sixty-one A of the General Laws, inserted by section one of this act, applications under section six of said chapter for the fiscal year ending June thirtieth, nineteen hundred and seventy-five, shall be filed prior to May first, nineteen hundred and seventy-four, and with respect thereto the boards of assessors shall forward notices of disallowance,if any, on or before July first, nineteen hundred and seventy-four; and the farm valuation advisory commission shall establish its ranges of values required under section eleven of said chapter as of March first, nineteen hundred and seventy-four, for the fiscal year ending June thirtieth, nineteen hundred and seventy-five and said value ranges shall be mailed by 40 § 2 TAXATION OF AGRICULTURAL LANDS C. 61A 4 N t , _ ':. ' the commissioner of corporations and taxation to the boards of assessors on or before 4,; a = April first,nineteen hundred and seventy-four. 1F.. SECTION 3. The provisions of this act shall apply to fiscal years ending June 1 z,"`' thirtieth,nineteen hundred and seventy-five and thereafter. 3 ;': Cross References— 1' This chapter is referred to in ALM GL c 59 §2A, dealing with use classification of F '',:t real property for assessment of local taxes. i r.s Code of Massachusetts Regulations— .: ' Land use:rules and regulations for farm land,330 CMR 18.01. e•c `` `' Total Client-Service ice Library®References— .' ' :<,;= 3 Am Jur 2d,Agriculture§9. 71 Am Jur 2d,State and Local Taxation§§60, 188. r Annotations— a Real-estate tax equalization, reassessment, or revaluation program commenced but not completed within the year, as violative of constitutional provisions requiring equal , and uniform taxation.76 ALR2d 1077. I` ` Prospective use for tax-exempt purposes as entitling property to tax exemption. 54 �N .: ALR3d , Validity, construction,and effect of state statutes affording preferential property 1 tax treatment to land used for agricultural purposes.98 ALR3d 916. 11 ' i Texts— Marzelli, Massachusetts Real YEstate,§§5:1-5:6. r {;,: Mendler,Massachusetts Conveyancers'Handbook with Forms,§§13:1-13:9. ! t CASE NOTES Appellate Tax Board correctly decided (1986)398 Mass 821,501 NE2d 506. `1 ' is that land on island between Buzzards Land contiguous to land directly used Bay and Vineyard Sound was devoted to for agriculture need not be included in if ; agricultural use or was contiguous determining revenue requirements under i�. , thereto and not used for residential, in- ALM GL c 61A §3. Nashawena Trust v dustrial or commercial purposes. Na- Board of Assessors (1986) 398 Mass 821, :* shawena Trust v Board of Assessors 501 NE2d 506. e r ; 1l i 2. When Land Deemed to be in Horticultural Use. 11 } ' j;i Land shall be deemed to be in horticultural use when primarily and ;' directly used in raising fruits, vegetables, berries, nuts and other 1 . 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 _ 4l. 1if ' l . .„,r.y.,,s,,,,lii...„:4,-.,„..r.s.-,.,.: .... --1.; ..... „. ..,4K4v...,s,....,„.....L..,,,,..,,.... , .,i„.:-..„. ,,_.,„ei„ ,av,,,,,,.,,..4.w,... . -, ,,„ n:•„,:,:,,A.r,t,,,.. ....1...,..,... ...,,e.. - . „:.• - . . i ,, .... -. -,_k�ry t: i4 .:vNL_ i.... .,........._. I 1G C. 111 ANNOTATED LAWS OF MASSACHUSETTS § 1 210. Presence of Knowledgeable Operator Required; Protective Eyewear; Time and Temperature Controls. 211. Use By Minors; Parental Consent or Presence Required. 212. Safety Claims; Operator Liability; Injury Reports. 213. Access for Inspections; Promulgation of Regulations; Exemp- tion for Phototherapy Devices. 214. Violations; Penalty. [NEEDLE EXCHANGE PROGRAM] 215. Needle Exchange Pilot Program; Report. Auto-Cite®:Cases and annotations referred to herein can be fur- ther researched through the Auto-Cite® computer-assisted research service. Use Auto-Cite to check citations for form, parallel references, prior and later history, and annotation references. DEFINITIONS • § I Definitions. The following words as used in this chapter, unless a different meaning is required by the context or is specifically prescribed,,shall have the following meanings: "Board of health" shall include the board or officer having like powers and duties in towns where there is no board of health. "Commissioner," the commissioner of public health. "Council," the public health council of the department of public health. "Department," the department of public health. "Disease dangerous to the public health" shall include all diseases defined as such in accordance with section six. "Farming" or "Agriculture" shall include farming in all its branches and the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural, floricultural or horticultural commodities, the raising of livestock including horses, 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 farming or agriculture as herein de- fined, or on a farm as an incident to or in conjunction with such 20 1 T._ , 1 PUBLIC HEALTH C. 111 farming operations, including preparations for market, delivery to storage, or to market or to carriers for transportation to market. 1 "Health care provider", any doctor of medicine, osteopathy, or i l dental science, or a registered nurse, social worker, doctor of chi- ropractic, or psychologist licensed under the provisions of chapter one hundred and twelve, or an intern, or a resident, fellow, or medical officer licensed under section nine of said chapter one {; . hundred and twelve, or a hospital, clinic or nursing home licensed under the provisions of chapter one hundred and eleven and its agents and employees. 2:Y "Inland waters" shall include any and all lakes, ponds, streams, i tidal waters and flats, and underground waters. Y. "Medical peer review committee" or "committee", a committee of a state or local professional society of health care providers, €, including doctors of chiropractic, or of a medical staff of a licensed P, hospital or nursing home or health maintenance organization 4 organized under chapter one hundred and seventy-six G, provided i =k: the medical staff operates pursuant to written by-laws that have , been approved by the governing board of the hospital or nursing o 1 . home or health maintenance organization, which committee has as its function the evaluation or improvement or the quality of health • ' -care rendered by providers of health care services; the determine- t tion,whether health care services wei performed in compliance E with the applicable standards of care, the determination whether ` the cost of health care services were.performed in compliance with the applicable standards of care, determination whether the cost of the health care services rendered was considered reasonable by the. providers of health services in the area, the determination of whether a health care provider's actions call into question such health care provider's fitness to provide health care services, or the evaluation and assistance of health care providers impaired or al- legedly impaired by reason of alcohol, drugs, physical disability, 1' mental instability or otherwise; provided, however, that for pur- poses of sections two hundred and three and two hundred and four, a nonprofit corporation, the sole voting member of which is 1 a professional society having as members persons who are licensed to practice medicine, shall be considered a medical peer review 11 : committee; provided, further, that its primary purpose is the I I:'i evaluation and assistance of health care providers impaired or al- ir legedly impaired by reason of alcohol, drugs, physical disability, 1 mental instability or otherwise. ,l_ "Nuclear reactor", any apparatus, other than an atomic weapon, "' designed to sustain nuclear fission in a self.-supporting chain rear- '1:'` 4. tion, t 21 I ` rl i ;:4 7h I :pxya. [ ; ! S { stf ' C. 111 ANNOTATED LAWS OF MASSACHUSETTS § 1 History- 1938,265, §6; 1951,448, § 1; 1966, 217; 1979, 796, § 13; 1986,351, §§ 5, 6; 1987, 467, § 1; 1987, 579, § 1; 1993, 297, approved Dec 16, 1993, effec- I tive 90 days thereafter; 1993, 309 §§ 1, 2, approved Dec 17, 1993, effective 90 days thereafter; 1993, 415, § 1, approved Jan 11, 1994, effective 90 days thereafter. Editorial Note- The 1951 amendment added at the end of the section a paragraph defin- ing "inland waters". • The 1966 amendment added the definition of"Farming"or"Agriculture". The 1979 amendment added the definition of"Nuclear reactor." The 1986 amendment added the definitions of"Health care provider"and "Medical peer review committee" or"committee". The first 1987 amendment, in the definition of"Health care provider", following"registered nurse", inserted ", social worker or psychologist". The second 1987 amendment, in the definition of"medical peer review committee", following each appearance of "nursing home inserted lan- guage relating to health maintenance organizations. The first 1993 amendment (ch. 297), in the definition of"Farming",or "Agriculture", inserted"including horses" after"livestock". . . The.second 1993 amendment (ch. 309), by § 1 in the definition of "Health care provider";,;following"worker",inserted ,doctor of chiroprac tic and by § 2, in the definition"of"Medical peer review committee", fol_, lowing"providers inserted including doctors of chiropractic The third 1993 amendment (ch. 415), in the definition of 'Medical peer review Committee", at the end of the paragraph, following""otherwise" inserted";provided,however, that for purposes of sections two hundred and three and two hundred and four, a nonprofit corporation, the sole voting member of which is a professional society having as members persons who are licensed to practice medicine, shall be considered a medical peer review committee; provided, further, that its primary purpose is the evaluation and assistance of health care providers impaired or allegedly impaired by reason of alcohol, drugs, physical disability, mental instability or otherwise". Cross References- For additional definitions, see §§ 17, 52. Code of Massachusetts Regulations- Implementation of GL c111 and 111C regulating the reporting of infec- tious diseases dangerous to the public health, 105 CMR 172.000. Total Client-Service Library® References- 7 Mass Jur, Property §25:135. CASE NOTES 1986 Amendment (St. 1986, c. 351) are confidential and immune from sub- pros ides that medical peer review cons- poena or discovery and that those attend- .:ittcc proceedings i t p,,,is ,,.„i •e,,,r,ls ing ccmm;ttee meeting .hall not he re- 22 § 2 PUBLIC HEALTH C. 111 `quired or allowed to testify about pro- "'Agriculture" includes operation of ceedings• Beth Israel Hospital Asso. v piggery. Building Inspector of Mansfield Board of Registration in Medicine (1987) v Curvin (1986) 22 Mass App 401, 494 I: 401 Mass 172,515 NE2d 574. NE2d 42. r i; t -;; §§ 1A, 1B. [Repealed, 1966, 685, § 4.1 E Editorial Note—Bh.. c. • The 1966 act which repealed the above two sections also established the :;�,. F Division of Water Pollution Control in the Department of Natural Resources. t: i'.fSeeGLc21, §§ 26to53. , 11. T� V r'`: :,. DUTIES OF THE DEPARTMENT OF PUBLIC HEALTH 11:' 1. i : 1 t" § 2. Commissioner of Public Health; Duties. 1 '" The commissioner shall administer • the laws relative to health and ` r...; -. K,v. sanitation and the regulations of the department, and shall prepare 1 1 is 7 a,. rules and regulations for the consideration of the council. The secre- tt I, hi ` to of elder affairs and the commissioner shall,jointly;develop and ,,, ry.. t 't "submits to the council' rules and regulations-governing:the licensure I i 1 t` A� v: 'and"operation'of convalescent or nursing homes,rest.homes, infirma- i 3ta.- " ries,maintained in a town and.charitable homes for.the aged He may !L i a direct any executive officer or employee of the department to assist , iE .4V in'•the study, suppression or prevention of disease,in any part of the t i sn t ,� commonwealth. He shall submit annually to the council a report containing recommendations in regard to health legislation. ' I a The comm s pp from bi ,miad d 1 1.2 f - records received issioner by himhall underre theare provisions the ofrth chapterarr fgeortyan six, an eathd WI' from the divorce returns received by him under the provisions of sec- k 111 • Lion forty-six of chapter two hundred and eight, such statistical tables 1 3';_ as he deems useful, and shall make annual report thereof to the gen- 1 w V eral court. The commissioner may transmit such information to the . i 11 ;.`; appropriate agency of the federal government to participate in the 1 }1 aelCIVI!!!l(IiI :)t 71 ((.)(ll)t'ldll\C i��li.ill l�iT iZ{- .i L4 . cal information at the federal, state and local level.The commissioner I may make further use of such records as he deems useful for . administrative and research purposes connected with health pro- As- j grams and population studies. He shall, as soon as is reasonably ,"g practicable, cause the birth, marriage and death records to be bound k13# -. with indexes thereto and shall retain their custody. He shall prepare an alphabetical index of such divorce returns showing the names of lir ' „ ; , t .. .. t,-� .,1 t.� :.,.�.r,,,r rit an,l the t'ntnll4' III K`lnch i z VI xx ,.t ! 1 - ;l , s,, zs d i7 .1ti44A - �L 1 f aeLr • :, CUMULATIVE SUPPLEMENT TO Annotated Laws of Massachusetts • ., CHAPTERS 111-111D ` • - : '. -'2 .. . . (as recompiled 1995)._ TITLE • XV• I._, PUBLIC HEALTH .. CHAPTER 1.11 tr Public Health , ; New Sections Added , Sec. 24F. Health Care Access Fund. • 24G. Primary and Preventive Health Care Services for.Uninsured V Dependent and Adopted Youths. 24H. Managed Care Program Established. 24I. Universal Immunization Program Established. 24J. Medical Respite Services Program Established 142N. Rules and Regulations for Certain Fossil Fuel-fired Electric Generation Facilities. I V 216. Fragrance Advertising Inserts in Newspapers, Magazines, Mailings and Other Printed Material Regulated. DEFINITIONS is § 1. Definitions. '- The following words as used in this chapter, unless a different meaning . is required by the context or is specifically prescribed, shall have the fol- lowing meanings: For latest statutes and case citations,call 1-800-446-3410. 7 C. 111 ANNOTATED LAWS OF MASSACHUSETTS [No change through definition "Disease dangerous to the pt. health".] [The following three paragraphs are reprinted to correct a punctua error.] "Commissioner", the commissioner of public health. "Council", the public 'health council of the department of pu health. "Department", the department of public health. [Definition "Farming or Agriculture" is amended to read as follows: "Farming"or"agriculture",farming in all of its branches and cult don and tillage of the soil, dairying, the production, cultivation, gr ing and harvesting of any agricultural, aquacultural, floricultural horticultural commodities, the growing and harvesting of forest pi ucts upon forest land, the raising of livestock including horses, keeping of horses as a commercial enterprise, the keeping and rail of poultry, swine, cattle and other domesticated animals used for fc. purposes, bees, fur-bearing, animals, and any practices,:including, forestry or lumbering operations,performed by a farmer, who is her defined as one engaged in agricultural of farming as heiein define&. on a farm as an incident to,or in conjunction with such farming•opc Lions, including preparationsfor market; delivery to.;storage�or' market or to carriers for trans ortation to:market. w ti ,5 4 [No change in balance of section.] p, z • J• '. History- _ " r Amended by 1995, 38 § 127,approved June 21, 1995,effective July 1, 1995. Editorial Note— The 1995 amendment substituted the definition"Farming"or"Agriculture"for one w read:"'Farming'or'Agriculture'shall include farming in.all its branches and the cultiva and tillage of the soil, dairying, the production, cultivation, growing and harvesting of agricultural, floricultural or horticultural commodities, the raising of livestock inclu. horses,the keeping and raising of poultry,swine,cattle and other domesticated animals for food purposes, bees, fur-bearing animals, and any practices, including any forestr. lumbering operations,performed by a farmer,who is hereby defined as one engaged in fp ing or agriculture as herein defined, or on a farm as an incident to or in conjunction such farming operations,including preparations for market,delivery to storage,or to ma or to carriers for transportation to market." CASE NOTES Proceeding before hearing panel of com- was peer review within meaning of ALM mittee on inquiry of Massachusetts chapter c 111 § I and §204. Swatch v Treat (15 of National Association of Social Workers 41 Mass App 559, 671 NE2d 1004. DUTIES OF THE DEPARTMENT OF PUBLIC HEALTH § 2. Commissioner of Public Health; Duties. [For text of section, see parent volume.] Editorial Note— Acts 1985, Ch. 728, §§1-8, 13, and 14, entitled "An act establishing a fund for t formaldehyde foam insulation for homeowners", approved December 31, 1985, by § 15 fective July 1, 1986,provide as follows: 8 For later statutes and case citations,see Quarterly Update Pamphlets. • c. 111 ANNOTATED LAWS OF MASSACHUSETTS § i Code of Massachusetts Regulations— Rabies vaccinations, 105 CMR §§ 330.001 et seq. . I. t Total Client-Service Library®References— t 58 Am Jur 2d, Nuisances §§ 71. i 59 Am Jur 2d, Health §§ 25 et seq. a 82 Am Jur 2d, Zoning and Planning §§ 39, 44, 45, 119, 128-147. 8 Am Jur Proof of Facts 527, Nuisances. 26 Am Jur Proof of Facts 181, Community Noise (Noise Pollution). . ;) j ` 43 Am Jur Proof of Facts 2d 303,Commercial Activity as Actionable P '"' Nuisance. rn Annotations— " Animal rendering or bone-boiling plant or business as nuisance. 17 ALR 1269. Stockyard as a nuisance. 18 ALR2d 1033. .y,. Keeping horses as nuisance. 27 ALR3d 627. Texts— Massachusetts Conveyancers' Handbook § 13:503. qt CASE NOTES This section has no application to an melting and rendering °establishm, i. , , . establishment in which the business of used in connection with.dead:horses" melting and rendenng of grease and tal- other large animals:Cambridge vJohn low and the aking of food for fowls Dow Co. (1904) 185 Mass:448,-70•' , from oyster and other seashells is con- 447. -.1 ducted, but was intended to apply to a ,'1 { ; : STABLES x , § 155. Licenses for Stables in Cities and Certain Towns. jNo person shall erect, occupy or use for a stable any building in city, or in a town having more than five thousand inhabitants, unit, wsuch use is licensed by the board of health, and, in such case, only 5 r.' the extent so licensed. The fee for such licenses shall be establish( in a town by town meeting action and in a city by city council actio I and in a town with no town meeting by town council action, by ado t Lion of appropriate by-laws and ordinances to set such fees, but in i r event shall any such fee be greater than forty dollars. This sectit shall not prevent any such occupation and use authorized by law t May fourth, eighteen hundred and ninety-five, to the extent and 1 the person so authorized, but the board of health of such a city town may make such regulations or orders as, in its judgment, tl public health requires relative to drainage, ventilation, size at character of stalls, bedding, number of animals and storage al ' handling of manure in an stable in its Lily or town. 472 • 'it t ' 1 1 1 156 PUBLIC HEALTH C. 111 } i l; tort'-- ' i ' 1890, 230; 1890, 395; 1891, 220, §§ 1, 3; 1895, 213, §§ 1, 2; 1896, 332; 1 ; 1 t897, 300, § 3; RL 1902, 102, § 69; 1912, 486; 1981, 351, § 58. i r .'tonal Note- 1 k The 1981 amendment added the second sentence concerning fees for li- ses. I' ; , 1e ry , Total Client-Service Library® References- II I `..58 Am Jur 2d, Nuisances §§ 71. l ).; : , ' Jur 2d, Health §§ 25 et se �� � ' ` '59 Am J 9 i €`4 82 Am Jur 2d, Zoning and Planning §§ 39, 44,45, 119, 128-147. • �; 4 1 = . R ,“ i 8 Am Jur Proof of Facts 527, Nuisances. •26 Am Jur Proof of Facts 181, Community Noise (Noise Pollution). ]` { ' s K•45 Am Jur Proof of Facts 2d 303,Commercial Activity as Actionable Private ;i ,, S 1` k 7 luisance. ij <j T ' 5' , 1 Annotations- ., € s y f Keeping horses as nuisance. 27 ALR3d 627. - J i, ` Texts- yS `;Massachusetts Conveyancers' Handbook § 13503 • '1 I t',3 I i' 5 iu . , 'CASE NOTES ,t .f The provisions 'of this and`the follow rinucci Bros &Co;(1962) 344 Mass,50, 'E i.�;y as p ing sections are an exercise of the police" 181 NE2d 584 . �1�1 t :1' power of the commonwealth, and are If a'permit to stable a horse, issued by 1 £ s� ' 'Constitutional, although noprovision is a local board of health under the instant :+ i s yf.. t ade for compensation and o right of section,provides that there be no storage I t �k- appeal is given. Newton v Joyce (1896) of manure within 100 feet of any property , . t•?, 2 & ' 166 Mass 83,44 NE 116. line, the remedy of an abutter for • the 2ld be a 112;tC< V. This and the following sections are de- violation to the board of health torovision uenforce 'r t� < �_signed to protect the health and comfort q `9 z3 ` " the proviso,and,upon their failure to do «� � � � �e�" of the community, and should receive a • so,to bring a mandamus proceeding,bu[ a r�T;< + construction which the plain meaning of unless the keeping of the horse consti- to t4 .t the words imports.Trowbridge v Tupper 3 P g PP Lutes a private nuisance, no remedy lies rt }t. • ,(1912) 210 Mass 378,96 NE 1096. by way of a bill in equity.Flynn v Seekonk Mt ,, The license provisions of a predecessor (1967) 352 Mass 71, 223 NE2d 690. section, were not applicable to land held Statute eliminates threat of stable being7? PP t by the Commonwealth or by agents of the built in largely residential area.Blakeley v fi5.a `• ;'Commonwealth, such as Metropolitan Gorin (1974) 365 Mass 590, 313 NE2d ; ei `s Park Commissioners. Medford v Ma- 903. ppps.: § 156. Stables in Vicinity of Churches ;fsitt;',..r.,7' No person shall in a city occupy or use a building for a livery stable, t ;; ''or a stable for taking or keeping horses and carriages for hire or to s'_` ; let, within tv.o hundred feet of a church or meeting house erected i• 1~ '' and n.,rl c ." rF_.,, n,�bi .- 1.:orchip of Cnrl with,_tllt the written consent _ .-.' 1 k c 1 t: -x .i.1,. 4i 1 h,�n 1 * 'r4. S[ , Fit a ,"R 'RF^+a1 • i f .b ;a ,. �r C. 111 f Y 1 PUBLIC 1IEALTH t k i i .� 15s z2 < s �� f ` ; , . Massachusetts Conveyancers' Handbook F 13:503. t s :144 ii v { .15 g� Licenses for Stables in Small Towns. r � : _ a he selectmen of towns hson gto k ep population more ha five fo four �n ' ' f y : license suitable per 1 , 'less may ' Iecified buildings or places withine. heefee for such licenses shall be 1{ P ; revoke such licenses at pleasure. any ! t' . �4 , established by said selectmen`s Whoever, not in no ebeing nt alicensed as afore- .' ;y}•is ,;,greater than twenty dollarsyyg��� r j� li yi Y ,` said, occupies or uses a building or place for a stable for more than i 1 is 1-. }a' i r. llars for every th ,,.. four horses shall forfeit not more dinha�n fifty laceoand in 1'ke propo non t}� �� � � ��� or uses such burl g p the erection, oc �� t , he so occupies .'for a shorter time. The superior court may restrain IA-, F'cupancy or use of stables contrary to this section or section one I ' 1.il # :. hundred and fifty-six. �s ' hundred and fifty-five'or. one t}. x k • r ,,..t ..Hstory— 88, § 32; PS•1882, 39; 3 . 1.851, 319; 1852,.129; 1853, 362 GS`1895, 213, § 3; 1897, 428; § 2; RL ° I `i y' i .,,,...,:,-,,t, 1891 220, § 4 R; ,1t. - 1890,. 102 1891 .395; t ; ;sit tr 1902, 102, §§ 71,'72 1981 351 § 59 , ti3 G tF - Editorial Note— .. ; � 3x�' .fir F . ' The 1981 amendment added"the second sentence concerriitig fees for h, ' Y �i censes. s � �*�' r References—. ;% a i' Total Client-Service Library® i Y , '' 58 Am Jur 2d, Nuisances'§§ 71. f w 59 Am Jur 2d, Health §§ 25 et seq. ttf 39,44, 45, 119, 128-147. 82 Am Jur 2d, Zoning and Planning §§ ;:Grp Y� 1i'i Y,. 8 Am Jur Proof of Facts 527, Nuisances. 26 Am Jur Proof of Facts 181, Community Noise (Noise Pollution). {� 3 :: r > ' 11 ,gym 1„s prnnf of Facts 2d 303,Commercial Activity as Actionable Private } ?;4 IV Annulatiur. _ t !'�.'. Keeping horses as nuisance. 27 ALR3d 627. is f ' t:: Texts— 13:503. tr i- -- . \lassachusetts Conveyancers' Handbook § _, v CASE NOTES 'a f4;.. o en ef- t is section should beg r, ti . „la;S Inn granted ,!his ld.br the 3 t> .r 1 , • IP i ,R % i i _; * C. 111 ANNOTATED LAWS OF MASSACHUSETTS , § 15g ' future which in their nature are more or whether covered or not. Brookline . less conjectural. White v Kenney (1892) Hatch (1897) 167 Mass 380,45 NE 756,' . i i 157 Mass 12,31 NE 654. Under prior law the superior court had St 1890. c 395, by which the superior no jurisdiction in equity of the power court was given concurrent jurisdiction conferred by the Pub Sts a 102, 139, with that conferred upon the supreme from which this section derives, to pry i judicial court by Pub Sts c 102, §39, as vent the erection, occupancy,or use oral'., amended by St 1890,c 230,to restrain by building as a stable for more than loin '_ horses. Jurisdiction has, however, since injunction the unauthorized occupancy or been given to the superior court in suds j Si use of a stable, did not give to the supe- a case by the St of 1890,c 395. Barker' 1'. rior court such jurisdiction of a case Mackay (1897) 168 Mass 76,46 NE 412 pending there at the time it took effect, A suit in equity in the superior co ' but of which previously that court had no under this section must be brought by t ' jurisdiction.Langmaid v Reed(1893) 159 city itself and not by the members of its; Mass 409, 34 NE 593. board of health. Trowbridge v Tupper 1 This section is aimed at the nuisance (1912) 210 Mass 378,96 NE 1096. which may be caused by the keeping of a Under this section a suit in equity m4 number of horses,and it can make no dif- be maintained in the superior court ference whether they are kept in one where there is a reasonable certainty this .. ii building or in several, or are kept in the the building in question is to be occupied 7 open air or in an enclosure. Brookline v and used as a stable unlawfully, although Hatch (1897) 167 Mass 380,45 NE 756. no actual injury to the public has been-. ',- : The word"place"in this section has a inflicted at the time the bill is filed.Trothl , broad signification It applies not only to bridge v Tupper(1912)210;Mass 378 96 $ a building but also to:.any enclosure, NE 1096. + _ s , ° WATER SUPPLY «', :];‘..:-.1,-1:14. § 159. Supervisiontof Inlard Waters r s 4, i V "► �: '4 lc . The depa tmentrof environmental,protection, in this sectton,.an� 1 = ° sections one hundred:and'sixty•to'�one hundred and sixty six, inclu =. '�` t ' sive, called the department, shall have the general oversight and care .t- a• of all inland waters and of all streams, ponds and underground waters , 4 . used by any city, town, water supply or fire district or public institu Lion or by any water or ice company or any person in the common wealth as sources of ice or water supply and of all springs, streams i' f 1 and watercourses tributary thereto. It shall be provided with maps, 4 ' plans and documents suitable for such purposes, and shall keep re,,* 41 ` cords of all its transactions relative thereto. It shall give notice to the •z �__` i attorney general of any violation of law relative to the pollution of'. r :1, water supplies and inland waters. •; 'r 1 History- - c' z 1886, 274, §§ 1-3; 1888, 375, §§ 1-3; 1890, 441, § 1; 1897, 510, § 1; id h 1902, 75, §§ 112, 115; 1919, 350, §96; 1951, 448, § 2; 1975, 706, § 184, ' 1990, 177, § 183. 4-1 x � -,` _. ., ` Editorial Note` tr The 1951 amendment gave the department control over underground waters, and otherwise broadened its powers. ` `- Sr: ,. 1 r t ill • , � f rA , 2, 2 , 2g, Z. D t , D lkf C. 128 ANNOTATED LAWS OF MASSACHUSETTS 1f = § 1 ' Y 111 Execution of marketing agreement as not requiring issuance t < of marketing order; issuance of marketing order as not ..; requiring execution of marketing agreement. 112. Applicants for marketing order to deposit funds to defray >; ' P. 1. expenses of order; reimbursement on pro rata basis. r :. 113. Assessments not deemed to be state funds; refund of ass ess- f ments; biennial report. -, 114. Advisory board to assist commissioner in administration of 4 marketing order; membership; duties and responsibilities. V,-; 115. Rules and regulations; commencement of actions. - , -...:‘,. i . VERALEX®: Cases and annotations referred to herein can v ` be further researched through the VERALEX electronic r • retrieval system's two services, Auto-cite® and f SHOWME®. Use Auto-cite to check citations for form,. parallel"references, prior and later history, and annota tion. references.`,Use SHOWME to display the full text • •of-cases and annotations. tn -DEFINITIONS 1 Definitions e t ' 1 The following':words as used in this chapter shall have,the follow- '., ing meanings unless the context otherwise requires: "Commissioner"; the commissioner of food and agriculture. "Department", the depart- r' ment of' food and agriculture. "Director", in sections sixteen to • thirty-one, inclusive, the director of the division of regulatory services r 1- , "Inspector",in the department of food and agriculture. Inspector , in sections thirty-two to thirty-eight, inclusive, the inspector of apiaries. "Nurs- '`r,.:_ ` ery stock", trees, shrubs, woody plants and strawberry plants, -r ,' whether wild or cultivated, and parts thereof for propagation. "Rid= ,';,= f ing school operator", any person owning or having the custody of , one or more horses which are let for hire to be ridden or driven, with or without the furnishing of riding or driving instructions. "Trust- •; I.t, ees", the trustees for county cooperative extension service. (1918, ES -' `' 273, § 1; 1919, 34, § 1, 350, §§34, 35, 37; 1941, 490, §29; 1967, 28; ..;R a 1972, 717, § 1; 1973, 43, § 1; 1975, 706, § 199; 1981, 351, §263.) 3 ==d;}: �{ Editorial Note— ';"'I '6' '' ' The 1967 amendment struck at the end of the definition of "Director" "and fairs" ;. • and added the definition of"Nursery stock." .* The 1972 amendment inserted the definition of"Riding school operator". i 1'° 202 t , i Y S i t lA AGRICULTURE C. 128 1[. a The 1973 amendment rewrote the definition of"Trustees". i ` `' The 1975 amendment substituted the commissioner and department of food and ,l s agriculture for the department of agriculture in the definitions of commissioner and :_ department. i of The 19111 amendment in the definition of "Director", replaced "director of the division of plant pest control" with "director of the division of regulatory services in E the department of food and agriculture". j` ; Acts 1939,ch.405,§§1,2,provide as follows: • : z s ,`SECTION I. The name of the division of plant pest control in the department of ` • 1 f agriculture is hereby changed to the division of plant pest control and fairs. The i' ,�. division of reclamation, soil survey and fairs in said department is hereby abolished, 1 and all the rights, powers, duties and obligations heretofore conferred or imposed upon andperformed by said z- said divisions, or either of them, shall hereafter be exercised - . division of plant pest control and fairs. The employees of said division of reclamation, 5 soil survey and fairs are hereby transferred to, and, subject to pertinent provisions of f, law,shall serve in, said division of plant pest control and fairs without impairment of " their civil service status or retirement of rights. ! ' 17 1 SECTION 2. When used in any statute, rule or regulation, each of the phrases 1 r "division of reclamation,soil surveyand fairs" and"division ofplantpest control,"or l y any words connoting the same,shall mean the division of plant pest control and fairs . , , in the department of agriculture unless a contrary intent clearly appears. •# Acts 1967, ch. 214, entitled "An act placing the position of director of plant pest - control under the civil service law", which was approved May'5,4967, provides as II, follows: ' The position of director of plant pest control in the department of agriculture shall, .. a . upon-the effective date of this act become subject to the civil service law and rules,.and. ^ T the tenure of office of the incumbent thereof -in the date of passage.of this,act if still 4 i the incumbent of said position on said'effective date,shall be unlimited,subject to said , ;. law and rules; provided, however, that he shall-be.subjected to a qualifyingexamina- ° 't tion for such position by the division of civil service,and,if Jie passes said examination, , " . shall.be certified for said position and shall be deemed to be permanently appointed i ;°thereto without being required to serve any probationary period. '` t -ems. -,1 r 'Total Client-Service Library®References— a. 3 Am Jut 2d,Agriculture§§1 et seq. • 11 -, -§ 1A. "Agriculture" "Farming"Farming" Defined. A riculture and "farming" shall include farming in all its I 4 t . u u I,: s branches and the cultivation and tillage of the soil, dairying, the z7 _° production, cultivation, growing and harvesting of any agricultural, gx i floricultural or horticultural commodities, y= 4 I.the growing and harvest- , • ing of forest products upon forest land, the raising of livestock, the s'• i f `'; keeping and raising of poultry, swine, cattle and other domesticated l. animals used for food purposes, bees, fur-bearing animals, and any g. practices, including any forestry or lumbering operations, performed 11 by a farmer, who is hereby defined as one engaged in agriculture or le 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 transpor- t,. 203 r It'll!: 3 3. j O-r S4;1A if 4 ,<. ak rn 4.v } 0 # . C. 128 ANNOTATED LAWS OF MASSACHUSETTS § 1A tation to market. (1952, 386; 1960, 181; 1987, 253, approved ul 1987, effective 90 days thereafter.) J Y 14, Editorial Note— The 1960 amendment. following "livestock", inserted ", the keeping and raising of poultry, swine,cattle and other domesticated animals used for food purposes," follow- ing "fur-bearing animals" deleted ", or poultry", and changed "preparation" to "preparations". The 1987 amendment, following "commodities", inserted ", the growing and harvesting of forest products upon forest land". l� .`r CASE NOTES "Agriculture" includes operation of v Curvin (1986) 22 Mass App 401, 494 irii piggery. Building Inspector of Mansfield NE2d 42. as �. . DEPARTMENT AND COMMISSIONER 2 Certain;Powers and Duties Defined. , l ti ' The department through its proper divisions shall;have power to— �,` ; • carry (a) Execute, and .into effect the laws relative to dairy prod t ucts, animal breeding,apple grading, plant,pest control except the i i ;' gypsy and brown tail moths and the.'tent caterpillars, apiary inspec-' 1._ i tion, and the production, storage, marketing and distribution of I agricultural products. ' ` (b) Aid in the promotion i and development of the agricultural resources of the commonwealth and the improvement of conditions of ' rural life, the settlement of farms and the distribution of the supply of farm labor. (c) Establish a foreign trade section in the division of agricultural 6 g y4 f development and investigate the cost of production and marketing in ',k. t= r all phases, and the sources of supply, of agricultural, aquacultural, 1-.., ; floricultural or horticultural commodities, transportation, storage, m:; marketing and distribution of said products sold, offered for sale, i'• stored or held within the commonwealth. 8fq F r. (d) Collect and disseminate data and statistics as to the food, pi. flowers and other horticultural products produced, marketed, stored i , or held within the commonwealth, with the quantities available from t`x' ii time to time and the location thereof. te, (e) Investigate and aid improved methods of co-operative produc- ?,; tion, marketing and distribution of agricultural products within the t commonwealth. 204 is-x • : ' i .. • § 2 AGRICULTURE C. 128 i. i f s , (f) Offer prizes for and conduct exhibits of flowers, fruit, vegeta- i bles, grasses, grains or other farm crops, dairy products, honey, C ,, horses, breeding ponies, cattle, sheep, swine, poultry, poultry prod- E+ ucts, rabbits, hares, dairy goats, farm operations, and canned and _ i, dried fruits and vegetables and offer prizes for, and in aid of, the elimination and suppression of insect pests. The department may also offer prizes for, and in aid of, such agriculturally related youth• , , programs as the commissioner may deem approved. To properly display exhibits authorized in this paragraph, the• department may g = expend such sums as may be appropriated therefor for the painting, , t' renovation, remodeling and maintenance of the state agricultural and i 'IV industrial building in the town of West Springfield and in the city of. : 1 ;i Brockton. ' ` i ;(g) To promote, develop and encourage through the Massachusetts i a Thoroughbred Breeding Program, breeding of thoroughbred horses' 1 7 r. in the commonwealth, by offering: a cash prize to the breeder of a 1 Massachusetts bred thoroughbred'horse, equal to twenty-five per cent; , of the purse' monies won, by said thoroughbred horse in any pan -.' ' .. ;y 4 e mutuel running; horse. race if said horse finishes first, second.or'third; ' ,r a,cash prize of fifteen per cent_of.,the purse won by said horse to the'`-, t t' owner of the,stallion, at the time.,of service to the dam of such purse; .• t •winner; provided, however,, than (i) the stallion: stood..the breeding* f season of February through June in the commonwealth, (ii) the horse. ' 1 ' • ",; ' finishes first; second or third,"and (iii) said stallion is registered with' , , .x r the department of food and agriculture; a cash prize equal to twenty per cent of the purse monies won by said thoroughbred horse in any. • •. . i 4 r ,, unrestricted pari-mutuel running horse race to the owner of a A Massachusetts bred horse if said horse finishes first, second or third. ! . The department is further authorized to pay cash purses for stakes races to be limited to Massachusetts bred thoroughbred race horses 4 from the Massachusetts thoroughbred breeding program at licensed ,7 ; pari-mutuel race meetings authorized by the state racing commission. < I. .i' , - 'n�h rAt es may be betting or non betting races and may or may not t. r t��' �. � 1 !;, ... �.•, ";`�'' t .c7 thY d.! t. fu t to k', ,' -i ;, �'!I!"se Rll!n!t• paid by the .iUNettila..rtl un.ct .... ..:`.:; =j such amounts as the department shall determine and may be the sole ` cash purse for such races or may be supplemental to the cash purses k , ; ` established by the licensee; provided, however, that no person, part- c nership, corporation or group of persons may receive more than five ,t d` thousand dollars as a cash prize breeder's award from the department , of food and agriculture for an individual horse race within the , ,{F r ( f1 ! F-t1,^.T 1'-rS' r3S,. Chad '� 7 ? � 1. b o st S ' I � sfti t � `�}"t fil 1 t` t ; ,443. a 1 f it jti, • f `. .ai` w ;;:it. ,_Y • 1,1 • C. 128 ANNOTATED LAWS OF MASSACHUSETTS No person shall be eligible for the prizes provided herein unless the -r' - following standards are met. (1) The foal of a thoroughbred mare that drops said foal in the '4C commonwealth, and is bred back to a Massachusetts registered ,:,F . i stallion shall be Massachusetts bred; or ,,-i 'P (2) The foal of a thoroughbred mare who resides in the common-•- s wealth from the fifteenth day of October of the year prior to foaling, . ..:'0,. l' and continues such residence until foaling and foals in the common- wealth shall be Massachusetts bred. s3 (3) In either the case of subparagraph (1) or (2), each thorough . bred foal dropped in the commonwealth shall be registered with the I Jockey Club, the department of food and agriculture, and the Massa- each Tu B Ai . g (4) Priorttshoro to,thehbred first day reeders of Septemberssoc ation of each year, each person chus standing a thoroughbred stallion in the commonwealth at either private or public service shall file with the department of food and `: agriculture: (a) a.list of all thoroughbred mares bred,to such stallion - in that'°year;°:.and. (b) a verified statement representing ;that said. i - stallion stood the entire breeding season in the commonwealth. ; xU -i The department is further authorized to expend.,up to eight per` cent of the amount,appropriated each fiscal year. to said program for . advertising, marketing•:„and promotion of thoroughbred,breeding in 1 j` Massachusetts ;' ' ;(h) Allot to fairs monies for the purchase, rental or installation of facilities toe;further aidl in the display of exhibits and the. health and' . . comfort of the,general public; provided, however, monies shall not.be 3 ` expended on any portion of the fair used for horse or dog racing. It may also publish annually a leaflet relative to trees and birds, which shall be approved by the commissioner of education, and may fii ,1 distribute the same to the superintendents and teachers of rural and tit suburban public schools prior to Arbor and Bird Day. t (i) To promote, develop and encourage through the Massachusetts 4 ".': #i greyhound breeding program, breeding of racing greyhounds in the 34 : commonwealth by offering- a cash Prize to the breeder of a Massa- chusetts bred greyhound, equal to not more than twenty-five per cent fof the purse monies won by said greyhound in any pari-mutuel _.; ,# greyhound race if said greyhound finishes first, second or third; a .:' cash prize of not more than fifteen per cent of the purse won by said r, greyhound to the owner of the stud; provided, however, that (i) the :4 3 stud stood in the commonwealth at the time of service to the bitch and the owner of the stud was a Massachusetts resident, (ii) the greyhound finishes first, second or third and (iii) the stud is registered j t„ _ 1 I § 2 AGRICULTURE C. 128 , ' with the department as a stud standing in Massachusetts at the time i , of mating; and a cash prize equal to not more than five per cent of f the purse monies won by said greyhound in any unrestricted pari- i mutuel greyhound race to the owner of a Massachusetts bred grey- t , hound if said greyhound finishes first, second or third. The department is further authorized to pay cash purses for stakes i ' races to be limited to Massachusetts bred greyhounds from the i ' , Massachusetts greyhound breeding program at licensed pari-mutuel j• 1 race meetings authorized by the state racing commission. Such races l,; may be betting or nonbetting races and may or may not be races i 1 l s • scheduled by the licensee conducting the racing meeting. Purse 1 ; monies and prize monies paid by the department under this section ••-. may be in such amounts as the department shall determine and may = i , be the sole cash purse for such races or may be in supplement to the ; cash purses established by the licensee. 1 ? No person shall be eligible for the prizes provided herein unless all , , I ''. of the following standards are met: 1 (1) the stud is standing in Massachusetts at;,the time of mating and • I{ is.owned or leased by a Massachusetts resident;:and .'z (2) the greyhound is whelped in Massachusetts from a bitch owned r,1 -• by a-Massachusetts resident, and, t f- iY ; ,> ` ' ) i (3)' the greyhound is physically present within Massachusetts for • • r • e ;E,. 'the. first•six months of the first.year following the"date such grey- ahound.was whelped;.and . . =`. ', ' (4) the'greyhound is certified 'as a-Massachusetts bred greyhound 1. ;1 • by the department. , �. The department shall, with, the approval • of the state racing a ? commission, and after public hearing, adopt rules and regulations for 4 ; r ' the expenditure of sums appropriated to carry out the provisions of - #: - this paragraph and for the registration of Massachusetts bred grey- • hounds. Said rules and regulations shall contain provisions for the rc t . ;1' '-, 7 1 : '' i eligibility of greyhounds for participation in such program where such greyhounds were whelped in Massachusetts prior to November - first, nineteen hundred and eighty-six, which greyhounds may be l{ •:.- deemed to be Massachusetts bred for purposes of this paragraph. Said rules and regulations shall be subject to section nine B of chapter one hundred and twenty-eight A, in the same manner as if they had been adopted by the commission. i . The department shall establish rules and regulations to provide for y ;, the expenditure of monies in compliance with the provisions of ; . (f), and i . Before establishing such rules, the paragraphs (b), (g), () � - commissioner, after reasonable notice setting forth the date, place 1 x• 14: i 207 5 1 I C •• t 0ar"*'M r'a 1 . i. 4Er1 f ( `` [ -. " -'- 4Et'. n s; 0 n I C. 128 ANNOTATED LAWS OF MASSACHUSETTS 3i `' § 2 3 3 ` and purpose, shall hold a public hearing relative to such rules. (1852, ' _ 142, §3; GS 16, § 5; PS 20, § 6; 1891, 412, § 11; RL 89, §§6, 11; t i s 1909, 428; 1910, 427; 1912, 411; 1913, 319, 590; 1914, 267, 298; 1917, 1 . 74, §2; 85; 1918, 241; 1919, 350, §§ 34, 38; 1921, 206; 1933, 291, § 1; I. 1937, 415, § 1; 1938, 230; 1941, 490, §30; 1941, 598, § 3; 1956, 694; 4 . 1957, 428; 1962, 558; 1965, 619; 1968, 628, § 1; 1969, 807, § 2; 1971, i, ` 987, §2; 1973, 846; 1973, 1066; 1981, 351, §§ 264, 265; � � � 650; 1971, , t 1981, 558, §§6, 7; 1985, 580, §§ 7, 8; 1986, 277, §2, approved July 16, 1986, effective 90 days thereafter; 1986, 557, § 119, approved, 1" t with emergency preamble, December 8, 1986.) ' Editorial Note- A .- The 1956 amendment in paragraph(f), added one new sentence at the end. ! The 1957 amendment in paragraph (d), made it applicable to flowers and other • horticultural products. c The 1962 amendment in paragraph(f), added breeding ponies to the prize exhibits The 1965 amendment added a new paragraph at the end of the section to authorize :" i , the establishment of rules for the expenditure of certain funds. 4 - The 1968 amendment added,',to,paragraph (f) a new sentence referring to the , t;. a, ' " offering of prizes for,and in aid of,agriculturally related youth programs. * J i The 1969 amendment added paragraph,(g) 4 _ The first 1971 amendment rewrote,paragraph (c)_ to include provision.for:the uy,; ' a 5 n I establishment of a foreign,trade,section in.the division of markets. 's a ' ' t a The second 1971 amendment added paragraph (h)relative to an allotment to,fairs 't '* which'do not conduct horse or dog racing meetings. 0;, i 4 The first 1973`amendment,.rewrote the first sentence of.paragraph (g) to make it t apply specifically'to pari=mutuel thoroughbred horse races and to change the,owners n„ • prize amount from 5 percent of the prize awarded the horse to 25 percent of the ,-"4 1 breeder's prize. i ' , ,The second 1973 amendment rewrote paragraph (h) to change a prohibition c;u: against allotting money to fairs which conduct horse or dog racing meetings, to the prohibition against fairs to which money has been allotted spending any portion of the allotment on such a meeting. .!. The first 1981 amendment, by §264 of the subject Act, revised paragraph (c) so K that a foreign trade section would be established in the division of "agricultural <r , `t development" instead of the division of "markets", and expanded the mandate of such ' ' a foreign trade section to include "aquacultural, floricultural and horticultural com- e;; ;. , 4� i modities"in addition to agricultural commodities,and,by §265 of said Act,in the first v 3 i sentence of the last paragraph, deleted "of paragraphs (6) and (f)", after "sums 4; appropriated to carry out the provisions". 3 - The second 1981 amendment rewrote paragraph (g) by providing additional guidelines for the promotion of the breeding of thoroughbred horses through the ! Massach ThoroughbdBreeding Program,and amendment also purports to = j f amend the last sentence of the section; however, in the opinion of the editor, said ,r, { amendmentusetts actually rewrotere theBree firstdi sentence of the last said paragraph. L b t The 1985 amendment, in part (iii) of the first paragraph of subsection (g), after 1, "prize equal to", replaced "five" with "twenty", and added the second paragraph of P .r 1 subsection(g). «-4 ` ' The first 1986 amendment added paragraph(i), encompassing four paragraphs. 1' The second 1986 amendment rewrote this section adding to the last paragraph a le -'l 208 I f- ; I y' try 6 0 F II I § 2A AGRICULTURE C. 128 t t 1 1 requirement that the commissioner give notice and hold public hearings prior to establishing ,n' ri,lr, ••r regulations foi the certain corrective changrstth re ,f monies in compliani.e with i ,-, the section, and also m ' t Cross References— ��ii, As to organization of the department, see ALM GL c 20 and the notes thereto. 9 [ 'i Code of Massachusetts Regulations— Y� • { .-! Food and agriculture fairs,330 CMR 7.01 et seq. III Prevention, suppression and extirpation of equine infectious anemia in horses, 330 1 .. • CMR 16.03. 4 Massachusetts greyhound breeding program, 330 CMR 24.00 et seq. , , 1t Annotations— • Judicial review of administrative ruling affecting conduct or outcome of publicly � � � s regulated horse,dog, or motor vehicle race. 36 ALR4th 1169. ` k, CASE NOTES Expense may'not be incurred by send- moth in Europe.2 Op AG118. t purpose Foal dropped in Massachusetts"but'not • ti ing agent to another State for ur ose of _. investigating question of ,existence of conceived herein is eligible. for. prize � gypsy moth in that,state.'1 Op AG 382. awarded by Department of Agriculture. • G; t Expense may not be incurred by send- to person •owning horse at time it,quali K p P P fies for such: •prize.1970-1971 Op AG 6 • r • ' frig aagent uestio o 'e for ur ose of roves-, + , f �:. tigating question. of existence_of gypsy "i 1 r [§'2A .,'Horde sRiding Instructors to Be Licensed, Fees, etc , t No 'No person shall hold himself out to be a horse rid h g commtssor-foroner. i r ,, hire without being licensed for such purpose'by be filed with the ,, { r I f Application' for a license under this section may commissioner and shall contain such information as he" shall prescribe:' Every such application shall be accompanied by a registration fee of 1 .* ten dollars, which shall in no event be refunded. If an application is I•s. payment of an . . approved by the commissioner, the applicant upon the a additional fee of fifteen dollars shall be granted a license, which shall T. F expire on March thirty-first following the date of issue, unless sooner i _ revoked. The annual fee for renewal thereafter shall be fifteen F 4, 1 _.; ;, :.t i. a. i:,; - ,t ,.fin u #, • on the margin of the license in the space provided for such pui Nib, ,• i F , ,t 1. immediately upon the receipt of said license, and such license shall not x t be valid until so endorsed. In case of loss, mutila ion, or des ruction _ • ./ , of a license, the commissioner shall issue a dup upon proper , -i proof thereof and payment of a fee of two dollars. ,f The commissioner shall make rules and regulations governing the I , ,;,.„ „f girl lirenee and shall establish the mini- it- I •K IL- la F l - t i- f ,T 1 1 . i' • t - :J _I t, +. ------- .__ nr r. v --. .• aBttta..XYF. •«z, • 6 11) mum qualtncatlons for for is�ua{IAc 1ilr,,„; :: ::.. 9 .. ..._ _.. .... ':, . 1 applicant meet or exceed the minimum qualifications established by the commissioner he shall be issued such license. (1972, 527.) t :,,r. t Cross References— , ` As to licensing of pet shops,see ALM GL c 129§39A. ;Y. 1 a `= Code of Massachusetts Regulations— Horse riding instructors, 330 Cb1R16.01. Y, _ t 2B. Operation of Riding Schools and of Certain Stables ;.,Y Licensed and Regulated. , ' ;Every person engaged in the business of operating a riding school ::,, or,.,,a.` stable where horses are kept for hire, shall`obtain a license :, : ;therefor from the commissioner, the fee for :which, shall, be fifty dollars,:"and•such license shall expire on March thirty-first following 'F Y. 11 the date of issuance, unless 'sooner revoked: The' commissioner, , : subject.to the approval of the governor may make rules and,regula „` Lions governing the issuance and revocation,of such licenses and the c ; conducting of the businesses so licensed and relative,to the mainte Hance of the premises, buildings 'and-conveyances, the health of the ,.; horses or other equine animals, and the method and time of tnspec r t ton and'checking-of said animals. Whoever violates any provision of ,y , i this,section or of any rule or.regulation made thereunder shall .be ti funished for a first offence by a fine of not more than one hundred dollars and for any subsequent offence by a fine of not more'than five ' , hundred dollars, or by imprisonment for not more than two and one -,� ; half years, or both. (1972, 717, § 2; 1973, 43, § 2.) . ` Editorial Note— a The 1973 amendment changed references to the director to references to the 't i , commissioner. -. . 4 , .- Code of Massachusetts Regulations— '. ,.1 Hnrseriding school operators, 330 CMR 1602. 1:, k,: ii:ti 2C. Agricultural Fairs; Administration of Drugs to Animals * ' Es : Participating in Contests. fI No person shall administer or cause to be administered any drug, 1 1. internally or externally by injection, drench or otherwise, to any ! animal for the purpose of retarding, stimulating or in any other manner affecting the performance of such animal in or in connection }r} ' V A. '41, ,,,f,,r , ;,,,,l,, -i,•,I I;,„i.r thr r,r;;viann.. ,.+ _,al.jt,r•ahi, (ri .. t ` - i' 210 •z .4 }:. ^fir. { T r 4 .1s 111, C. 128 ANNOTATED LAWS OF MASSACHUSET S .I TITLE XIX AGRICULTURE AND CONSERVATION CHAPTER 128 Agriculture New Sections'Added • Sec. 2D. Sponsors of, and Liability in Connection With, Equine Activities; Required Warnings; Definitions:. 2E. Limitation,of'Liability,. of "Pick-Your-Own" Farming Operations ,' and Their Personnel; Posting of Warning Notice.. 38B. Massachusetts State Exposition:Building.Maintenance Fund •• h> DEFINITIONS A,. ` *$ , Definitions t '- ,'y' n 1 t 4 '1 {" C G • Research References— .. 6 Mass Jur,Property 12:7. 1A. Farming and Agriculture Defined. "Farming" or "agriculture" shall include farming in all of its branches and the cultivation and tillage of the soil, dairying, the production, cultiva- tion, growing and harvesting of any agricultural, aquacultural, floricultural or horticultural commodities, the growing and harvesting of forest prod- ucts upon forest land, the raising of livestock including horses, the keep- • ing 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 forestry or lumbering opera- tions, performed by a farmer, who is hereby defined as one engaged in agriculture or 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. History— Amended by 1989, 225, approved July 11, 1989, effective 90 days thereafter; 1995, 38, t 142. appretveri lune 21. 1995, effrc; ve July 1, ►995: Editorial Note— The 1989 amendment, in the first sentence, following "livestock", inserted "including horses". 44 For later statutes and case citations,see Quarterly Update Pamphlets. a • �.>2 SUPPLEMENT TO CHAPTERS 124-129A C. 128 The 1995 amendment rewrote this section,adding harvesting of aquacultural commodities d the keeping of horses as a commercial enterprise. Research References- 2Mass Jur,Property 119:27. 2 Massachusetts Jurisprudence, Environmental Law 4 11:75. • CASE NOTES d x Landowner's proposed use of 5-acre por- or horticultural use of land and therefore was • don of 39-acre parcel to excavate and re- subject to zoning by-law prohibiting com • - '_.move•300.000 to 400,000 cubic yards of mercial earth removal.Henry v Board of Ap- gravel so as to allow for access to"Christmas peals (1994)418 Mass 841,641 NE2d 1334. :tree farm"was not incidental to agricultural DEPARTMENT AND COMMISSIONER Z.a..2. Certain Powers and Duties Defined. • The-department through its proper divisions shall have power.to— ri [No change through Subsection (f).] _ (g) Promote, develop and encourage through the Massachusetts t Thoroughbred Breeding Program,the breeding of thoroughbred horses :lac-in the commonwealth by offering cash prizes to breeders orsuch horses' ''.in the `following manner: the :Ma-sachusetts Thoroughbred Breeders Association,-Inc shall from time to time in consultation with the chair--'" • r zman of the racing commission and the program manager for the equine ►.•'_division in the department of agriculture set percentages for.bo- nuses to be awarded to the breeder of a Massachusetts bred thorough- L_ bred,horse, of the purse monies won by said thoroughbred horse in any pari-mutuel running' horse race if said horse finishes first, second or z+; third; the percentage for a cash prize to the owner of the stallion, at the :-time of service to the dam of such purse winner; provided, however, that (i) the stallion stood the breeding season of February through June - in the commonwealth, (ii) the horse finishes first, second or third, and _.:(iii) said stallion is registered with the department of food and agricul- ' ture; the percentage for a cash prize for the purse monies won by said thoroughbred horse in any unrestricted pari mutuel running horse race t:-_,to the owner of a Massachusetts bred horse if said horse finishes first, r second, or third. The Massachusetts Thoroughbred Breeders Association, Inc. is fur- ther authorized to pay cash purses for stakes races to be limited to Mas- • sachusetts bred thoroughbred race horses from the Massachusetts ▪ thoroughbred breeding program at licensed pari-mutuel race meetings authorized by the state racing commission. Such races may be betting -:_or non-betting races and may or may not be scheduled races by the licensee conducting the racing meeting. Purse monies paid by the as- sociation under this section may be in such amounts as the association shall determine and may be the sole cash purse for such races or may ▪ be supplemental to the cash purses established by the licensee; pro- ,: vided, however, that no person, partnership, corporation or group of tk `, persons may receive more than five thousand dollars as a cash prize breeder's award from the association for an individual horse race within +' &. � � i; +t ; ` ;' + S.a� • For latest statutes and case citations,call 1-800�483410. . h , s : ✓ � 3 C. 128 ANNOTATED LAWS OF MASSACHUSETIS $ 2 . the commonwealth. For the purposes of this section a horse race shall mean a thoroughbred race of any kind held within the commonwealth except at fairs. No person shall be eligible for the prizes provided herein unless the following standards are met: (1) The foal of a thoroughbred mare that drops said foal in the commonwealth and is bred back to the Massachusetts registered stal- lion shall be Massachusetts bred; or (2) The foal of a thoroughbred mare who resides in the common- wealth from the fifteenth day of October of the year prior to foaling,-t and continues such residence until foaling and foals in the common-- wealth shall be Massachusetts bred. (3)In either the case of subparagraph (1)or (2) each thoroughbred foal dropped in the commonwealth shall be registered with the Jockey Club and the department of food and agriculture. (4) Prior to the first day of September of each year, each person standing a thoroughbred stallion in the commonwealth at either private or public service shall file with the department of food and agriculture: (a) a list of all thoroughbred mares bred to such stallion y in,that year; and (b) a verified statement representing%that said stal- y. lion stood the entire breeding season in the.commonwealth The; 'Massachusetts Thoroughbred Breeders Association;.,Inc.- is hereby:`further authorized to expend up to eight percent of:'the;:amount received each fiscal year for said program.for advertising, marketing, promotion, and.administration of the thoroughbred breeding program s in the commonwealth: , XThe state auditor`shall annually audit the booksof the.Ma'ssachu'setts: Thoroughbred;Breeders,Association; Inc.:,to f insure tcomp)iance with- 4 this section ?. M q i S j M r [No?change through Subsection (i)], ;3 ;� ' .;t' 3 g r:;(j)-Promote,develop and encourage through the Massachusetts Stan-ctdardbred'Breeding Program, the breeding of standardbr`ed'horses in .'the commonwealth by offering cash prizes to breeders of such horses in the following manner: a representative organization cif standardbred breeders and owners approved by the state racing commission, shall, from time to time in consultation with the chairman of the racing com- mission and the program manager for the equine division of the depart- - ment of food and agriculture, set the percentages for purses and stal- lion awards to be awarded to the breeder Of a -Massachusetts standardbred horse; provided, however, that a maximum of fifteen f percent of such sums shall be awarded to the owner, or lessee of the .- stallion who owned or leased such stallion at the time the stallion sired a Massachusetts standardbred horse. p The standardbred horses and stallions eligible to participate in the purses and stallion awards provided herein shall be limited to those of racing ages two and three and which have been sired by a Massachusetts registered stallion on file with the department of food and agriculture; provided, however, that the stallion stood the entire breeding season of 46 § a . For later statutes and case citations,see Quarterly Update Pamphlets. =- 1.1 • • { SUPPLEMENT To CHAPTERS 124-129A C. 128 February first through July fifteenth in the commonwealth in the year any such eligible foal was conceived. The representative organization of standardbred breeders and own • - " �'ers approved by the state racing commission is further authorized to pay • , cash purses and stallion awards for stakes races limited to Massachusetts standardbred race horses and qualified Massachusetts stallions from the Massachusetts standardbred breeding program at licensed • h'pari-mutuel race meetings authorized by the state racing commission. Such races may be betting or nonbetting races and may or may not be pri scheduled races by the licensee conducting the racing meeting. All races y • for the standardbred breeding program shall be held at a licensed pari- iaaAt"mutuel facility. Purse monies and-stallion awards paid by the represen- tative organization approved by the state racing commission may be t • "ir..7 paid in such amounts as the representative organization shall determine and may be either the sole cash purse and stallion award for such races or may be supplemental to the cash purses and stallion awards estab-: �n lished by the licensee of the pari-mutuel facility. Prior to the first day of October of each year, each breeder standing Fa standardbredstallion in,the commonwealth at either private or.public -• a list service shall.file with the department of food and agriculture: (a)' •Ir of all standardbred mares bred to such stallion in that year; and (b) a , • °O verified statement;representing that said:stallion stood,the entire breed- mg season in the commonwealth. The representative organization is hereby further authorized to ex- pend up to eight,percent.of the amount:received each fiscal year for said program for advertising,'marketing, promotion and administration of the standardbred breeding program in the commonwealth. The state auditor shall annually audit the books of the qualified 4'11or•ganization to ensure compliance with this section. 1)17 History— Amended by 1991, 114, 4 I, approved July 8, 1991, effective by act of Governor.July 9, 1991,applicable to licenses applied for or granted for racing to commence on or after Jan 1, '1992; 1992, 101, 5 1,approved,with emergency preamble,July 6, 1992. Editorial Note— ;.•The 1991 amendment rewrote paragraph(g),making the following changes therein:in the _first paragraph,changed the provisions relating to cash prizes,which previously provided for t` specific percentages as cash prizes, in the second paragraph, substituted "Massachusetts f' Thoroughbred Breeders Association, Inc." or "association" for "department" or "depart- ment of food and agriculture",in clause(3)of the third paragraph,after"Club",deleted the comma, inserting "and" in its place,and following"agriculture", deleted ", and the Mas- sachusetts Thoroughbred Breeders Association",in the fourth paragraph,substituted"Mas- 'sachusetts Thoroughbred Breeders Association, Inc. for"department" and ", promotion, and administration of the thoroughbred breeding program in the commonwealth"for"and promotion of thoroughbred breeding in Massachusetts", and added the last paragraph requiring an annual audit. The 1992 amendment struck the last paragraph which read: "The department shall establish rules and regulations to provide for the expenditure of monies in compliance with the provisions of paragraphs (b), (f),(g),and (i).Before establishing such rules,the commis- sioner,after reasonable notice setting forth the date,place and purpose,shall hold a public hearing relative to such rules." and added subsection (j). Section 11, of the amending act, provides as follows: Yr r 47 i ,.,.t• • For latest statutes and case citations,call 1.800-48-3410. r�((yd� ,ylT " �1 a • C. 128 ANNOTATED LAWS OF MASSACHUsms § 2 ; Secnom 11.Notwithstanding the provisions of paragraph(j)of section two of chapter one : t hundred and twenty-eight of the General Laws,for the period between January first,nineteen .+e. i,tjl hundred and ninety-two to December thirty-first,nineteen hundred and ninety-five,the only =Rni standardbred horses and stallion awards set forth therein shall be those bred during the :' '8t period between February first,nineteen hundred and eighty-three and July fifteenth,nineteen l; hundred and ninety-one or the foal of standardbred horse which was foaled by a stallion • ni which stood the entire breeding season between February first and July fifteenth in the coin- ,••• monwealth in the year any such eligible foal was conceived. • Beginning with the nineteen hundred and ninety-two standardbred breeding season,each standardbred stallion must be properly registered with the department of food and agricul- ture. For the nineteen hundred and ninety-two breeding season only, the deadline for '"a registering a standardbred stallion eligible for stallion awards and whose foals are eligible for cash purses pursuant to this section and section two of chapter one hundred and twenty-eight shall be July first, nineteen hundred and ninety-two and each calendar year thereafter, the deadline shall be January thirty-first. • r 2D. Sponsors of,and Liability in Connection With,Equine Activi- ties; Required Warnings; Definitions. (a) For the purposes of this section, the following words shall have the following meanings:— . "Engage in an equine activity", riding, training,assisting in veterinary, • �:; treatment of, driving;'or being a passenger upon an equine, whether • mounted or unmounted,visiting or touring or utilizing an equine,facil ity as part of an organized event or activity,or assisting a participant ors show management „The term "engage in an equine..activity" shall not' e include being.a"spectator at an equine activity,except in cases where the 1' spectator 'places,himself in,an unauthorized area or in immediate' 3(l roximit to the a uine'activit p y q Y . "Equine", a:horse, pony, mule, or,donkey. r °k• ` �-t ` dor ,' Equine.activity",f(1)equine?shows,fai-s,competitions,.performances, 'par. or parades-that•involve'any':orsall'breeds_of equines:,and anytiof the,; equine disciplines .including,:but not limited Ao, .dressage, hunter4nd i "sen • ",jumper horse shows,}grandrprix jumping, three-da`y;events, combined; training, rodeos, riding,'driving, pulling,cutting, polo,'steeplechasing, otli English and; western -performance riding, endurance traili.riding, :fro` gymkhana games, and hunting;":(2) equine training or teaching activities or"both; (3) boarding equines; including normal daily care thereof; (4j uol riding, inspecting, or evaluating by a purchaser or an agent an equine r • belonging to another, whether or not the owner has received some, monetary consideration or other thing of value for the use of the equine. or is permitting a prospective purchaser of the equine to ride, inspect, or evaluate the equine; (5) rides, trips, hunts or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; (6) placing or replacing horseshoes or hoof trimming on an equine; and (7) providing or assisting in veterinary , treatment. tr "Equine activity sponsor",an individual, group, club, partnership, or :., corporation, whether or not the sponsor is operating for profit or { nonprofit, which sponsors, organizes, or provides the facilities for, an a` -. equine activity,including but not limited to:pony clubs, 4-H clubs,hunt clubs, riding clubs, school and college-sponsored classes,programs and 48 For later statutes and case citations,see Quarterly Update Pamphlets. �. u • 2D SUPPLEMENT TO CHAPTERS 124-129A C. 128 ty7S. "activities, therapeutic riding programs, stable and farm owners and operators, instructors, and promoters of equine facilities, including but 61ot limited to farms, stables, clubhouses, pony ride strings, fairs, and arenas at which the activity is held. "Equine professional", a person engaged for compensation: (1) in instructing a participant or renting to a participant an equine • s.for the purpose of riding, driving or being a passenger upon the equine; (2) in renting equipment or tack to a participant; (3) to provide daily care of horses boarded at an equine facility; or (4) to Ii?tt train an equine. ''Inherent risks of equine activities", dangers or conditions which are „rt an-integral part of equine activities, including but not limited to:. id_'.` (1) The propensity of equines to behave in ways that may result in einjury, harm, or death to persons on or around them; (2) the y i + unpredictability of an equine's reaction to such things as sounds,sud- S . den movement,and unfamiliar objects,persons,or other animals; (3) certain hazards such as surface and subsurface conditions; (4) colli- • stons with other equines,or objects; (5).the potential of a participant r r---to. act in .a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the -animal or not actingwithin' his-ability. Y "Participant', any person, whether amateur or professional,.who. engages in an equine activity, whether or not a fee is paid to participate an such equine.activity a- Exce t as provided in subsection c ,an equine activitysponsor, an (b) P O q :� p equine professional, or any other person, which shall include a corpora- tion'or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities and,except as provided in said subsection (c), no participant nor participant's repre- sentative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities. =(c) This section shall not apply to the racing meetings as defined by sec- tion one of chapter one hundred and twenty-eight A. - Nothing in subsection (b) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person: (1) (i) provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury; or (ii) provided the equine and failed to make reasonable and prudent efforts to ''determine the ability of the participant to engage safely in the equine activity, and determine the ability of the participant to safely manage the - particular equine based on the participant's representations of his abil- ity; y (2) owns, leases, rents, has authorized use of, or is otherwise in law- ful possession and control of the land, or facilities upon which the ,k• 49 4- 4 ' y^ 4 N � � 7 � For latest statutes and case citations,call 1-800.448-3410. y� �s� 3 L : .Y s 0 • 'axis-' C. 128 ANNOTATED LAWS OF MASSACHUSEtTS ,_ :• ..,t � 2D 0� participant sustained injuries because of a dangerous latent condition 'a which was known to the equine activity sponsor,equine professional, or •3E person and for which warning signs, pursuant to subsection (d), have not been conspicuously posted; :11 (3) commits an act of omission that constitutes willful or wanton 20( disregard for the safety of the participant, and that act of omission ` caused the injury; or jIt: (4) intentionally injures the participant. xtiO (d)(1) Every equine professional shall post and maintain signs which en contain the warning notice specified in paragraph (2). Such signs shall be ` • placed in a clearly visible location in the proximity of the equine activity.- '"ice The warning notice specified in said paragraph (2)shall appear on the signre: P �P PP ��; � res in black letters, with each letter to be a minimum of one inch in height. Every written contract entered into by an equine professional for the •en providing of professional services, instruction, or the rental of equipment 'en or tack or an equine to a participant, whether or not the contract involves_ ' equine activities on or off the location or site of the equine professional's '' a'1 business,.shall contain in clearly readable print the warning notice sped-,. • fled in said paragraph.(2). , :;•ag • (2) The signs and:contracts described in paragraph (1) shall contain . lei the following notice: f ; . - ,co ,- 1t WARNING ' Under Massachusetts law, an equine professional is not`liable for t - t e- } an injury to,or the death of wa participant in equine activities result # '" .. y3 3 ing from the inherent risks"of equine activities, pursuant.to section «-1 :; 2D of chapter'128°of�the General'=Laws 4 , * IV. t ' ,..' :a :History ,f ,;, . . y • , •.• t t ��. ''Added by 1992 212,.4 I.approved,with emergency preamble,Oct 16, 1992(see Editorial a 8�, ` Note.below). ' ..s Nc'�;,. Editorial Note— - Section 2 of the inserting act provides as follows:• : ` . x' f Seenop 2.This act shall apply to causes of action filed on or after the effective date of this 1 act. .: Research References— Rt 4 Am Jur 2d,Amusements and Exhibitions 44 53,54,67,96,99. i' 4 Am Jur 2d,Animals if 86,87, 100, 103. 104, 106. ?:..; lB Am Jur PI&Pr Forms,Rev,Animals,Forms 151, 157-159. 1/4i ;`, ' 13 Am Jur Proof of Facts 2d 473,Knowledge of Animal's Vicious Propensities. 25 Am Jur Proof of Facts 2d 461,Failure to Use Due Care in Providing Horses for Hire. ':: AA t Annotations— : `gg • Liability for injury inflicted by horse,dog,or other domestic animal exhibited at show.80 3c=to ALR2d 886. :. Liability of owner of horse to person injured or killed when kicked,bitten,knocked down, ;..3 • and the like.85 ALR2d 116E Liability of owner or operator of horse or dog racing track for injury from racing opera- -- �: h. ' tions or condition of premises.87 ALR2d 1179. Lt: • Liability of youth camp,its agents or employees,or of scouting leader or organization,for - ;; it injury to child participant in program.88 ALR3d 1236. •- 50 t For later statutes and case citations,see Quarterly Update Pamphlets. is it ::_ 410 SUPPLEMENT TO CHAPTERS 124-129A C. 128 ^liability of owner or bailor of horse for injury by horse to hirer or bailee thereof.6 ALR4th )5)% ?Lability for injury or death of participant in automobile or horse race pt public track. 13 Al Roth 623. ,liability to adult social guest injured otherwise than by condition of premises. 38 ALR4th glti • LIE., Limitation of Liability of "Pick-Your-Own" Farming Opera- Qions:and Their Personnel; Posting of Warning Notice. No!..owner, operator, or employee of a farm who allows any person to enter said farm for the purpose of agricultural harvesting, including the cutting of Christmas trees under a so-called "pick-your-own" agreement shall be liable for injuries or death to persons, or damage to property, resulting from the conduct of such operation in the absence of wilful, wanton, or reckless conduct on the part of said owner, operator, or employee. t Said:owner or operator of said farm shall post and maintain signs which contain the warning notice specified herein. Such signs shall be placed in a location•visible to persons allowed to enter said'farm for the purpose of agricultural harvesting.:The warning notice shall appear on,a sign in black letters, with::each letter to be a minimum of;one inch in;height-'and:shall contain the following notice: i t �, WARNING iri ,Under.;section 2E. of chapter 128 of the General Laws the owner, :operator, or any employees of this farm-shall not be liable for injury or i,:death.of persons, or damage to property, resulting out of the conduct z of this ."pick-your-own" harvesting activity in the absence of wilful, .5^wanton, or reckless conduct. History- Added by 1994,89,§ 1,approved,with emergency preamble,Aug 12, 1994(see Editorial Note below). Editorial Note— .Section 2 of the inserting act provides as follows: Seciiort 2. The provisions of this act shall apply to causes of action accruing on or after the effective date of this act. Research References- 57A Am Jur 2d,Negl§§49, 55. 3 Y: •tg: INSPECTOR OF APIARIES n2... Duties of Inspector; Regulations by Commission. -There shall be within the department a full-time chief apiary inspector to perform the duties of the department relative to a program for the inspection and control of bees, as provided in sections thirty-two through thirty-eight, inclusive. Subject to appropriation, the apiary inspector shall • have a staff to perform said duties. With the approval of the commissioner, ; ! the inspector of apiaries shall prepare and distribute from time to time such literature upon the subject of bee culture as he deems advisable, shall r' E , ; 51 � x=� For latest statutes and case citations,cell 1-800-446-410. ` 4 � 44; z . k i 1176 Mass. 527 NORTH EASTERN REPORTER, 2d SERIES property.' The judge instructed the jury resentencing the defendant as upon a ver- otherwise without objection. The defend- dict of guilty of simple wanton destruction ant claims that as a result of the judge's of property. erroneous instruction he is entitled to a SO ORDERED. new trial. We disagree. Although the judge's instruction was er- w ror, it was not material to the defendant's O SIfEYNUMBERSYi7EM conviction. Indeed, in a sense the instruc- r tion was more favorable to the defendant than the one to which he was entitled be- { cause it required the Commonwealth to prove an additional element in order •to 26 Mass.App.Ct. 970 convict the defendant of the offense. jzoMitchell STEEGE et al' [7,8] However, in a different respect v. the judge's charge did harm the defendant. BOARD OF APPEALS OF He instructed the jury that the Common- wealth must prove beyond a reasonable STOW et al? doubt that"the value of the property dam- No. 87-1259. '' age exceeded one hundred dollars"(empha- sis supplied). This'was error because, un Appeals.Court.of Massachusetts, • Middlesex. , t der:G.L.c 266,.;§":127 (note 1, supra), it is . , ,.. the value of the "property so destroyed or Argued June 8..1988. injured" that must be found to exceed:one Decided Sept. 90988: hundred dollars,not the amount of•damage ` to the property that'.must exceed one;hun- . dred dollars 2:; Although;the evidence in Property owners -".brought action ,i this case warranted a finding that the val- against town board of appeals, town build= ue of the property so destroyed or injured ing inspector and town, seeking declaration. was more than one hundred dollars, the that their use of their land was agricultural ,- s - jury were not instructed on that point, and and thus exempt from local regulation. `; the defendant was found guilty and sen- The Land Court, Middlesex County, ruled tented for causing wanton destruction to that operation of boarding stable for hors- + property of the value of more than one es and riding academy was agricultural use hundred dollars. That was error. so as to exempt property owners from pro- The judgment on the complaint that scriptions of town's bylaw, and appeal was _ charged wanton destruction of property taken. The Appeals Court held that prop- t t#' valued at more than one hundred dollars is erty owners' purchase and raising of hors- vacated, and the case is �oremanded for es, stabling of horses, training through o } fie 1, g op- 'A. ' f` 1. The value of the property destroyed or injured 2. The judge may have been misled by the jury c4;<l:9 only affects the possible sentence of a defendant ' instruction on wanton destruction of property Y.•Y convicted of wanton destruction or injury of found in Model Jury Instructions for Criminal l+i' " property. See G.L.c.266,§ 127,as appearing in Offenses Tried in the District Courts (1983). i 1,; :, St. 1982, c. 229, § 2, which states in relevant That instruction (5:30) provided that the Com- :; part that "if such destruction or injury is wan- monwealth must prove beyond a reasonable 1 ton. [the defendant] shall he punished by a fine i t i 4doubt that "'the value of the property damage of fifteen hundred dollars or three tt,nes the 1 ' r�::rgtjrii :nr l!u!iilrril !h•i?;1r� Irtii,!i + tti t,i? a 4 'i'ie ($ the prrpertp so destr0}'cd ci" injurt-.f, �,`i e �which:evet is greater, or by imprisonment for t'i'"I] That ructttction has cin.kt ,.r i,t.r;n rre!a- i ; not more than two and one-half years; if the Cd. See Instruction 5:30 as revised in 1988. c value of the property so destroyed or injured is t`-r e t. e 1. Katherine Steege.it. not aaeg d to exceed one hundred dollars, the g t), -: punishment shall be by a fine of three times the value of the damage or injury to such property 2. The building inspector of Stow and the town x,-j/ '- or by imprisonment for not more than two and of Stow. I.t. ' one-half months...." t ii 1, I 1 1 i I::;_ ; STEEGE v. BOARD OF APPEALS OF STOW Mass. 1177 Cite 66527 N.E.2d 1176(Mass.App.Ct. 1988) j,' (;: eration of riding school and participation in for giving riding lessons; and for the rid- I 1 horse shows was "agricultural use" of ing use of owners of the boarded horses. f4- I.. ; :.' property so as to exempt property from The premises have been licensed by the -, town's zoning bylaw. Commonwealth for the operation of a rid- i Affirmed. ing school. On August 2, 1984, the build- '; li; ing inspector ordered the Steeges to"cease ' <1• and desist immediately the riding school • IT Zoning and Planning €=.279 operation...." The order stated that its 1., Property owners' purchase and raising enforcement would be "extended" if the ' " of horses, stabling of horses, training of Steeges filed for a special permit with the -, , i':' horses through operation of riding school board of appeals (board). On September -Y;. and participation in horse shows was "agri- 13, 1984,the Steeges submitted an applica- „ cultural use" of property so as to exempt tion for a special permit, under protest. I property from proscriptions of town's zon- They claimed that the operation of a riding y;' ing bylaw. M.G.L.A. c. 40A, § 3; c. 61A, school on their property was an agri- is . §§ 1, 3; c. 128, § 1. cultural use and, therefore, exempt from See publication Words and Phrases the proscriptions of Stow's zoning by-law. for other judicial constructions and See G.L. c. 40A, § 3. After a hearing the definitions. board denied the Steeges' application for a •- special permit. Paul Killeen, Waltham; for .defendants. The Steeges then filed a complamt`in=the John P: Zelonis, Jr.,<Boston,-'for plain- Land.Court against the:board,-the'building ,: i i tiffs.' '' . ,.: '" inspector, and the town seeking a declare-, ' ^ Catherine Clement,Sp.'"Asst Atty. Gen,' tion that their_use of their land was Agri I for Massachusetts Dept'of Food'and Agn ';`.cultural.and ex•empt from local regulation r ' l culture, amicus curiae,"submitted a brief. After:the trial in;,the Land•Court, the A judge filed a memorandum of decision that ' -, i Before PERRETTA, CUTTER' and contained her findings and rulings. She SMITH, JJ. ruled that"the i the uses made by the plaintiffs of their land ... are so interrelated that 1 i RESCRIPT. they comprise agricultural use as defined This is an appeal from a ruling of the in G.L. c.61A, §§ 1 and 3, and G.L. c. 128, Land Court that the operation of a board- j 1, and are therefore exempt from the F ' ing stable for horses and a riding academy requirements of the Stow zoning by-law." is an agricultural use protected by G.L. c- The defendants have appealed from that 4,` i 40A, § 3.3 The facts are not in dispute. decision. Mitchell and Katherine Steege are the General Laws c.40A, § 3, as amended by , \ owners of property in Stow which contains St. 1982, c. 40, provides in pertinent part: in excess of five acres and is located in a "[N]or shall any [zoning] ordinance or by- residential zone. For many years prior to law prohibit, unreasonably regulate or re- f ' August, 1984, when the Steeges first ac- quire a special permit for the use of land j quired the land, the locus was part of a for the primary purpose of agriculture, twenty-five acre farm which had been used horticulture, floriculture, or viticulture; as a home for ill and retired horses. From nor prohibit or unreasonably regulate the li, t the time theyacquired the property, the expansion or reconstruction of existingII 1 q P P Y, P - Steeges have used the premises for the structures thereon for the primary purpose I' raising, training, and boarding of horses; of agriculture, horticulture, floriculture, or 4 3. As an alternative ground for ordering the en- of that ruling has been made an issue on appeal [,}1 try of judgment for the plaintiffs, the judge by the defendants: Because of our decision in 1 p a' ruled that the special permit had been construc- favor of the plaintiffs in regard to the "agri- I ti ; tively granted because the board of appeals cultural use of their property,we do not reach I i} i}: failed to take final action within the time period that issue. mandated by G.L.c.40A,§ 9. The correctness t_ ' ; c :t4 J ki: 1 r 1 1178 mass. 527 NORTH EASTERN REPORTER, 2d SERIES i i viticulture ... except that all such activi- such animals in the regular course of busi- ties may be limited to parcels of more than ness; or when primarily and directly used ' five acres in areas not zoned for agricul- in a related manner which is incidental ture, horticulture, floriculture, or viticul- thereto and represents a customary and 1 4 ture" (emphasis supplied). The defendants necessary use in raising such animals and • argue that the operation carried out by the preparing them or the products derived Steeges on the premises, which are located therefrom for market" (emphasis supplied). - in a residential zone,is not agriculture, and General Laws c. 61A, § 3, inserted by St, is therefore subject to the zoning by-law. 1973, c. 1118, § 1, reads: "Land not less The analysis used in Building Inspector than five acres in area shall be deemed to 1 of Mansfield v. Curvin, 22 Mass.App.Ct. be actively devoted to agricultural or I 401, 494 N.E.2d 42 (1986), is also useful 1172horticultural uses when the gross sales here. The term "agriculture" is not de- of agricultural,horticultural or agricultural fined in the statute. "When a statute does and horticultural products resulting from not define its words we give them their such uses ... total not less than five hun- y a usual and accepted meanings, as long as dyed dollars per year." Here, there was 1. these meanings are consistent with the evidence, and the judge specifically found, statutory purpose. We derive the words' that the annual $500 minimum for sales 1: usual and accepted meanings from sources had been exceeded by the Steeges. s: presumably known to the statute's en- There was evidence that, as part of their _ actors, such as their use in other legal farm operation;` the Steeges. purchased contexts and dictionary definitions." Id. at young horses,'raised-and then proceeded to • 402, 494 N.E.2d 42 (citations omitted). In sell them. The saleability of a particular that regard,Webster's Third New Intl.Dic- horse depended on whether it could be rid tionary (1971) at page 44`defines `agricul- 'den, particularly by young children. .As . `I.! tore" as "the science or art of cultivating part of their training, the horses would be the soil, harvesting crops, and raising live- ridden by students in order that they might x stock." "Livestock," in turn, is defined as become accustomed to handling,by inexpe- ' A "animals of any;kind kept or raised for use rienced"riders The Steeges had-sold-an or pleasure." Id. .at.1324 „ r : average of ten horses a year in the past 3' l "We look also to the use and definition of few years- ,,s the word `agriculture' in other legislation In view of the evidence and the expan- S� . because `[s]ound' principles of statutory sive definitions of"agriculture"in the stat- ••F I construction dictate that interpretation of utes, the judge ruled that "the plaintiffs' t i provisions having identical language be purchase and raising of horses, their sta- 7 : I uniform.'" Building Inspector of Mans- bling,training through the operation of the ti. ; I` field v. Curvin, 22 Mass.App.Ct. at 403, riding school, and their participation in s1 li 494 N.E.2d 42, quoting from Webster v. horse shows are all part of the one whole �h r Board of Appeals of Reading, 349 Mass. and constitute agriculture as that phrase is ', 17, 19, 206 N.E.2d 92 (1965). See Corn- used in c. 40A, § 3." There was no error. a g monwealth v. Baker, 368 Mass. 58, 69, 330 The judge's interpretation gives the word �r, N.E.2d 794 (1975). 2A Sands, Sutherland "agriculture"found in G.L.c.40A, § 3, "its ' ��e�A Statutory Construction § 51.02 (4th ed. plain and ordinary meaning and its consist- �:. !T 1984). General Laws c. 61A, § 1, inserted ent and well-established ... definition in =s P, by St.1973, c. 1118, § 1,which concerns the other statutory contexts...." Building t. r' assessment and taxation of agricultural Inspector of Mansfield v. Curvin, 22 i 4 and horticultural land, states that "[]land Mass.App.Ct. at 404, 494 N.E.2d 42. � 7 `j shall be deemed to be in agricultural use �� �; The other issues raised by the defend- when primarily and directly used in raising ants are without merit. fii animals, including, but not limited to, dairy JUDGMENT AFFIRMED. t I r l cattle, beef cattle, poultry, sheep, swine, Mil horses, ponies, mules, goats, bees and fur- "j i j bearing animals, for the purpose of selling o S KEY NUMBERS STEM l•f such animals or a product derived from T t • 'Y. • _ � . .::.: ' . ,�n y.: d COM'R OF CODE, ETC. v. WORCESTER DYNAMY, INC. Mass. 1151 Cite as,Mass.App.,413 N.E.2d 1151 gy—a strategy which successfully produced motion for new trial), and Commonwealth acquittals on three of the four charges. v. Gallo, 6 Mass.App. —d, 382 N.E.2d 743 "When the arguably reasoned tactical or (1978) (third motion for new trial). �. strategic judgments of a lawyer are called Order denying fourth motion for new tri- into question, we do not'second guess com- al affirmed. petent lawyers working hard for defend- ants who turn on them when the jury hap- pen to find their clients guilty.'" Common " c E KEY NUMBER SYSTEM wealth v. Rondeau, — Mass. —, —b, T 392 N.E.2d 1001 (1979), quoting from Com- monwealth v. Stone,366 Mass. 506,517,320 N.E.2d 888 (1974). [2] 2. There was ample evidence to COMMISSIONER OF CODE INSPEC- support the judge's conclusion that "[t]he . TION OF WORCESTER_ failure to present defense witnesses [one v. Faraci and one Marcella] was a trial tactic WORCESTER DYNAMY, INC. 1 which was warranted in all the circum- • stances." Moreover, the earlier motion . .' .Appeals Court of Massachusetts, ' judge's ruling concerning Faraci's"demean Worcester. °,or" and:his;"vague, inconclusiv•e and indeci Argued Nov: 6, 1980. sive . ... manner of testifying" provides ad , x ditional support for the instant judge's •find Decided Dec: 29, 1980 ing that their testimony"would have added , ;little or nothing to the case and would not City commissioner of code inspection.;' have varied',the outcome."' • " . ;.-brought action seeking to enjoin operation [3] 3. We agree with the judge's fin- of off—campus dormitory. The Superior 1 ing that the "defendant was competently Court, Worcester County, Meagher, J.,en- and effectively represented at his trial and tered judgment, and appeal was taken. 1 . at subsequent post—trial" proceedings. The The Appeals Court, Dreben, J., held that • i judge could properly conclude that an ap- premises used as living quarters for interns • peal from the denial of the second (as well at nonprofit corporation organized exclu- as the first) motion for a new trial was sively for educational purposes were not pointless because "[t]here was nothing sub- subject to permit requirement of city zon- stantial to appeal." ing ordinance. 4. Because "[t]here must be a reasona- Reversed and remanded for entry of • ble moment for a judgment to become final new judgment. and a time beyond which further challenges must be barred," Reddick v. Common- wealth, supra at —`, 409 N.E.2d 764, we Zoning and Planning e=,384 i have carefully reviewed the entire record of Premises used as living quarters for '• all proceedings (including the trial tran- interns at nonprofit corporation organized ! script). In the circumstances of this -zase exclusively for educational purposes were we have deemed such a procedure essential not subject to permit requirement of city in order to reduce the possibility of a fifth zoning ordinance. M.G.L.A, e 40A, § ?- motion for a new trial and yet another appeal to this court. See two prior appeals: Commonwealth v. Gallo, 2 Mass.App. 636, James H. Barnhill,Worcester,for defend- F ti. , 318 N.E.2d 187 (1974) (conviction and first ant. Y � ��t. b. Mass.Adv.Sh.(1979) 1668, 1674. d. Mass.App.Ct.Adv.Sh.(1978) 1054. b'; "' ' 4aa i c. Mass.Adv.Sh.(1980)at 1964. V ' y . - L 3T t 1152 Mass. 413 NORTH EASTERN REPORTER, 2d SERIES Bennett S. Gordon, Asst. City Sol., for living quarters for Dynamy interns are not - plaintiff. subject to the permit requirement of the Worcester zoning ordinance. Before BROWN, DREBEN and NOLAN, _I JJ. The following are the subsidiary facts found by the judge as supplemented by ,f DREBEN, Justice- undisputed testimony and exhibits, see :1 The commissioner. of code inspection of Western Mass. Elec. Co. v. Sambo's of the city of Worcester brought this action Mass., Inc., — Mass.App. —, —b, 398 -1 seeking to enjoin Worcester Dynamy, Inc. N.E.2d 729(1979),and cases cited. Dynamy (Dynamy), from operating an off-campus is a non-profit corporation organized under dormitory at 17 Hamden Street in Worces- G.L. c. 180"exclusively for educational pur- ter. Under the city's zoning ordinance, a poses." Its primary goal is "to accelerate '' lodging house or dormitory maybe operat- the process of maturing in young adults." ed in the residential district in which 17 It offers internships for an academic year- ,•: '• • '# Hamden Street is located only if a special which provide work experience in-,the'pro permit is obtained from the board of•ap- fessions, crafts, businesses and other fields - z: pealsa Dynamy did not seek'or`procure Dynamy provides residential living arrange-'-'' itments which are "designed 'such a permit A judge of the Superior to gtve';interns' Court, after hearing,found that the "use of the major,responsibility for•management".?x}' r '-`-,,,,,:the premises is residential nature and is ''The residential portion,of;the program is�; `f " `subject to local zoning'use rmegulation""He considered by the,,Dynamy.director<to`�be': ,''` . ', r • , entered a judgment"precluding•.Dynamy ;'central.,to;its educational'goals Students' J -'from-"operatingg.the premises`& :* as living -froin-the Worcester area may,however live , 'quarters for its interns,;`so:long••as it does 'at'home:•=;Dynamy has ar'ran'gements with fir, . not hold a-[s]pecial,[p]ermit." ''We' reverse: . 'a•number of educational institutions where . z- ' General Laws c.40A,.§3,:as.appearing in by its interns are given credit?for parttctpa ,„ ,, St. 1975, c. 808, § 3, '.provides in relevant tion in the program, and high school seniors .' part that "[n]o zoning ordinance or by-law of the city of Worcester may enroll-in the shall . . . prohibit, regulate or restrict the program for credit as a substitute for the use of land or structures . . . for education- senior year. al purposes on land owned or leased . . . by Although the trial judge concluded that a nonprofit educational corporation." For the use of the premises is "residential in the history of this statute see The Bible nature" and "subject to local zoning use j Speaks v. Board of Appeals of Lenox, regulation", we reject that conclusion. "If ] Mass.App. , n.10 a, 391 N.E.2d 279 the judge's characterization of the [use as a {-- (1979). In the circumstances of this case, residential use] is a conclusion that, as a i we hold that the premises which are used as matter of law, the proposed use [is] not 1. Worcester Zoning Ordinance§ 15A(4)(1963). ter at an earlier age than usual through partici- paling in a guided program of intense experi- a- Mass.App.Ct.Adv.Sh. (1979) 1362, 1370 n.10. once and thoughtful reflection." ].. b. Mass.App.Ct.Adv.Sh. (1979)2453,2455. in describing residential living, the catalogue states: "Each group of interns in an apartment ij 2. Dynamy's catalogue includes the following dnrir1PV on b„dgetir,g, pm-chase and prepara- statements: "Toda s societyspends tremen- Y P f f nr1 The. cr .,. ai, salcn iiaride on ,i,ss time and ;r,r,c. ,,t; Jr.:,;‘,piile r i <.' c-. ,o0perativr act o.ttir :,h l si. ..scr,ng rough academic +ork, but too little time in a guest speaker at their apartment or arranging developing character es well as intellect for a dinner exchange with other interns,staff, through nonacademic means such as experi- trustees,or sponsors. Through living together, mental learning.... [T]he young need direct assistance in finding methods and developing interns are able to develop a mutually support- . the strength necessary to become actively par- ive environment in which they can learn from ticipating, contributing adults.... Dynamy each other by sharing their day-to-day expert- seeks to help young people ... in order that ences." [ they might build personal strength and charac- 1 i COM'R OF CODE, ETC. v. WORCESTER DYNAMY, INC. Mass. 1153 Cite as,Mass.App.,413 N.E.2d 1151 'educational; it must be reversed as an er- vard College v. Cambridge, 175 Mass. 145, ror of law[citation omitted]. To the extent 146, 55 N.E. 844 (1900) (tax case). Yale that it is a finding of fact, it must be set Univ. v. New Haven, 71 Conn. 316, 327, 42 aside as `clearly erroneous' [citations omit- A. 87 (1899) (tax case). See Trustees of ted]." Fitchburg Housing Au thy. v. Board Phillips Academy v. Andover, 175 Mass. at of Zoning Appeals of Fitchburg, — Mass. 125, 55 N.E. 841 (tax case). See also Trus- -, —e, 406 N.E.2d 1006 (1980). The tees of Wesleyan Academy v. Wilbraham, fact that interns reside at the facility"does 99 Mass. 599, 604 (1868) (tax case); Rad- not negate its educational purpose." Ibid. cliffe College v. Cambridge, 350 Mass. 613,Education has been long recognized in 618, 215 N.E.2d 1892 (1966) (zoning case). the courts of this Commonwealth as a See generally, Annot. 64 A.L.R.3d 1087 "broad and comprehensive term". Fitch- (1975). This tradition is significant in inter- burg Housing Authy. v. Board of Zoning preting the term "educational purposes" in Appeals of Fitchburg, — Mass. at —- G.L. c. 40A, § 3 (cf. Worcester v. New —d, 406 N.E.2d 1006, citing Mount Her- England Inst. & New England Sch. of mon Boys'School v. Gill,145 Mass. 139, 146, Accounting, Inc., 335 Mass. 486, 492-493, 13 N.E. 354 (1887). The Bible Speaks v. 140 N.E.2d 470 [1957]), and we note that Board of Appeals of Lenox, — Mass.App. where the Legislature has intended to per- at —-—s, 391 N.E.2d 279. Dynamy's mit a city to restrict the use of land or , program, including its residential compo- structures for educational,purposes, it has nent, see note 2 supra, falls clearly within done so with specificity:" See,e.g.,St. 1979, the definition of education accepted in c. 565, § 1. ; i Mount Hermon and approved in Fitchburg, The Legislature did not intend to enable • namely, "the process of developing and a city or town to "exercise its preference" training the powers and capabilities of hu- as to what kind of educational uses"it will man beings" and preparing persons "for welcome," The Bible Speaks,supra at—- activity and usefulness in life", Mount Her- —f,,391 N.E.2d 279, or "to impose special 4 mon, 145 Mass. at 146, 13 N.E. 354. See permit requirements . . . on legitimate edu- also Harbor Schools, Inc. v. Board of Ap- cational uses which have been expressly au- 1 peals of Haverhill,5 Mass.App.600,605,366 thorized to exist as of right in any zone." 1 N.E.2d 764 (1977). Those in charge of Dy- Ibid. , namy consider the residential aspect of its The judgment is reversed, and the case is program central to its educational goals, and although such views are not conclusive, remanded to the Superior Court for the they are entitled to due weight. Trustees entry of a new judgment dismissing the of Phillips Academy v. Andover, 175 Mass. plaintiff's action. 118, 124-125, 55 N.E. 841 (1900); Emerson So ordered. v. Trustees of.Milton Academy, 185 Mass. , 414, 415,70 N.E. 442 (1904). Moreover, such views are consistent with o S KEYNUMBERSYSTEM , the English and American tradition of high- T er education, where residential living is deemed an integral part of the learning experience. President and Fellows of.liar c. Mass.Adv.Sh. (1980) 1465, 1469. e. Mass.App.Ct.Adv.Sh. (1979) at 1373-1374. d. Mass.Adv.Sh. (1980) at 1470-1471. f. Mass.App.Ct.Adv.Sh. (1979)at 1376-1377. E M�:a 913 N.E2d-25 .. .:1,.,—^:a:� .. . . . . . . ; . . . 1 . . . . . . . . . . . . . . . . ... . . . ,...:. .,..• . ......' . . .• . •,'. . . , . . . . . • = - . ;.. ...- - .;-•'.. --;1-t.,... ' . ... . . . .. • . . . ,. ,. . . . . . . . , Ti d � t�� er '. i 1334 Mass. 641 NORTH EASTERN REPORTER, 2d SERIES '*l f ,-444 t' l h 3. Zoning and Planning 0=279 t 1 IT 418 Mass. 841 Proposed excavation of 300,000 to " . JiKathleen B. HENRY 000 cubic yards of gravel over period of thrie years from five acres of a 39-acre plot was r v' not"incidental"to agricultural or horticul i t BOARD OF APPEALS al use of land within statute providing that no t,; OF DUNSTABLE. zoning ordinance shall unreasonably regulate r i , or require special permit for use of land for x I Supreme Judicial Court of Massachusetts, primary purpose of agriculture or hortica 3 14-i i . Middlesex. ture, and thus removal was subject to local il t` i zoning by-law prohibiting commercial earth _,AArguedSept S 9, 1994. removal, even though landowner sought the titDecided Nov. 16, 1994. gravel removal to remove steep grade of the ?t,. , land in order to allow safe access to"cut your p' own" Christmas tree operation involving an- ,,.t'r, Town Board of Appeals denied landown- nual crop of 700 to 1,000 Christmas trees. g ; .e 4: er's application for permit to remove 300,000 M.G.L.A. c.40A, §.3; Dunstable, Mass.,Zoo. to 400,000. cubic yards of gravel from steep ing By-Law § .15. I grade.,on property to provide safer access to See publication Words and Phrases s _.-,e c- "cut your own" Christmas tree operation. for other judicial constructions and def- =s The Superior Court,'Middlesex County, Rob- initions.. A j{ ert H. Bohn, Jr:,'J.,`'yentered judgment for • 4. Zoning and Planning a301 landowner,and the Appeals Court, 36 Mass. APp•Ct. 54, 627 N E 2d 484, affirmed. On incidentalpermissible ' f Uses which are to , application for further appellate review, the activity on zoned property are permitted as rP - Supreme Judicial Court, Abrams, J., held long as incidental Use does not undercut plain fr that the proposed gravel;removal would not intentzoning by-law, and word "incid of �`o en- "• t%` be"incidental"to agricultural or horticultural tal" in zoning;by-laws-or ordinances'incorpo. 1< ; e. use of operating Christmas tree farm, and rates two concepts: use must not be the thus was subject to local zoning by-law pro- primary use of the property but one which is '. hibiting'commercial earth removal. subordinate and minor in significance; and t• ' there must be reasonable relationship with 'F Reversed and remanded. 4? the primary use,such that the incidental use 41-1"w is attendant or concomitant. i• -" 1. Statutes «188 5. ZoningPlanning and a301 r When statute does not define terms, Determining whether activity is inciden- O• 'T court looks to the plain meaning of those tel to permissible activity on zoned property # terms. is fact-dependent inquiry, which both cotn- t u^� '� � 2. Zoning and Planning a279 pares net effect of the incidental use to that r.}{ of the primary use and evaluates the reason- � "- Planting of evergreen trees for either ableness of the relationship between the inci- saw cut operation or "cut your own" Christ- dental and permissible primary uses, and mas tree farm is within meaning of"agricul- focus is on the activity itself and not on such � _ ture" or "horticulture" for purposes of stat- external considerations as property owner's ' ute providing that no zoning ordinance shall intent or other business activities. F uni'easunably regulate yyr r r equire special pe - t "r <: mit for use of land for primary purpose of c. • It; agriculture or horticulture. M.U.L.A. c. 40A, Robert J. Sherer, Boston (Francis A Di- • 7 § 3. Luna with him) for plaintiff. } See publication Words and Phrases e for other judicial constructions and clef- Richard W. Larkin, Town Counsel, for de• -°'- . initions. fendant. tl„ .t. Levi „ q is 7ti r i. HENRY v. BOARD OF APPEALS OF DUNSTABLE Mass. 1335 t ' -4 L " - r Cite as 641 N.E.2d 1334 (Mass. 1994) )4, f t• Tara Zedeh, Sp. Asst. Atty. Gen., for Dept. leen B. Henry owns thirty-nine acres of land ti r? I of Food and Agriculture, amicus curiae, sub- on High Street in Dunstable, a rural area •. 1 3 ; 'witted a brief. classified as an R-1 residential district. The 4 '. ' 1• ;- plaintiff's plot is forest land within the mean- ` s ; i Before LIACOS, C.J., and WILKINS, ing of G.L. c. 61 (1992 ed.), and has been m ' i ' RAMS, NOLAN and LYNCH, JJ. under a G.L. c. 61 forestry management plan u for over ten" ears. .ABRAIVIS, Justice. Y , X We granted the defendant board's applica- For the past several years, the plaintiff has t fbon for further appellate review to consider used a portion of this property to cultivate >'' ';F :• its claim that the excavation and removal of 1,000 trees to restore the forest and to begin , r 300,000 to 400,000 cubic yards of gravel from a Christmas tree farm. After consulting ex a hilly five-acre portion of the plaintiff's thin- perts,J3the plaintiff realized that a "cut y , t ri , :,-nine acre plot is not incidental to an agri- your own" Christmas tree farm would be - + ?� Y ', cultural or horticultLural use of the land and much more profitable than a saw log opera- . u ,�" 4 s therefore is subject to the local zoning by-law tion. During winter, neither mechanized 1; .y�, r rt,,prohibiting commercial earth removal. See farming equipment nor customers of a "cut. ) - :.= t '- 'generally § 15 of the zoning by-law of the your own" operation would be able safely to f ;t} `. < ;p4 r - _ ' {.own of Dunstable. have access to the proposed five acre area " s ' a "` unless the steepgrade of the land created by 't 1 i� : The plaintiff's property is in an R-1 resi- a'-dential district within the town of Dunstable. byremoving 1, _ � an esker is leveled 300 00.0 to ' -i c _ x'•• In an R-1 district an owner may remove or 400 000 cubic yards of gravel. , s - ., ;" . transfer earth within the property bound- To realize her contemplated "cut your: r t .- � 0 4 s sties. However, Dunstable's zoning by-law own" tree farm, the plaintiff planned to hire ' `ftyr . _ prohibits commercial earth removal in an R= + *� -; . a'contractor to remove 100,000 cubic yards of , 4 1- 4 t t a� - , 1 district as of right. The plaintiff app;;.ed to ' '• ' i 1 } t° ,� gravel'.:annually until the' necessary gravel 7•the Dunstable board of selectmen (select 1 „ � ` was removed (at least three.to four years) ,,, — ;, 4 � inen) for a special permit. The`selectmen ''denied theplaintiff's application. The contractor would sell the gravel at the t .- 11:3 I pp cation. market rate, currently one dollar per cubic ' <`•, The hoard denied the permit on the yard, and share any profits with the plaintiff, �' and that the removal operation would be,_8ro P which she planned to invest in startup costs �: yy� ""' .. _ x 'injurious, noxious or offensive to the neigh- of the "cut your own" operation. Eight _ g i borhood" within the meaning of the applica years after completion of the excavation and �`► ':it.., '-� 4`h' ble by-law. Theplaintiff appealed to the P I e PP planting a sustainable annual crop of 700 to ,,.Superior Court on the parties' stipulation of 1 000 Christmas trees is expected,which cur- ,4 i 11 � i facts. A gtlhnrinr Court fudge determined .....,1 . . ,1) tt r,-,, tl ;,.i ,.I,,t : , i1.:,-, 'ts-P. s r .' •,. G.L. ,u�. , ,I e.c+c ru.I ' as lill1uetII4l (u r > r > of the Zoning Act, G L. c 40A (1992 ed.), �� ���.�� � f an agricultural use, and that the plaintiff does not define "agriculture" or "horticul- t k ;could proceed with the earth removal opera ture," we look to the plain meaning of those I g r _bon. The Appeals Court affirmed. Henry v. terms in deciding whether the plaintiffs ac � a*Board of Appeals of Dunstable, 36 Mass.App. tivity is agricultural. See, e.g., Building Ira- j`1 r-F`iikr,: ' Ct. 54, 627 N.E.2d 4S4 (1994). We allowed M1 ''.. spector of Peabody v Northeast Nursery. e: i the . F frl.,.. + ..., ..;.. I,,,, ;: '.1 1,,,..., katt1 t.....,, n11'f .l -:Hi rr8hllk I i 1 I - it.•1 F tc ti ,. .r•# ,1 }},, 1. Gen, . 1 a � � � � � 5 3 r19u2 cd ), reads in c;al Ncrr;:t for he usc „f land for the �Srilr�ar� � y shall ul rra ..b!, , curate or require a spe- {t! *l '-'t,'. to 5.. s +� r g ''.. :ft !ill ' x h s F7 gl�r r �. -- V 1 '. '; 1336 Mass. 641 NORTH EASTERN REPORTER, 2d SERIES 4-K . , , horticulture. The board does not contend whether an activity is an"incidental ' t: otherwise. fact dependent inquiry,which both "use$ ` the net effect of the incidental use coin r yf` " i [3] The board asserts that the plaintiff's to that X `•'' proposed earth removal does not qualify for the primary use and evaluates the p; the exemption because it is a major indepen- ableness of the relationship between the'"° ":R-f f f''''1,k$,4,-; dent commercial quarrying project separate dental and the permissible primary u 4 and apart 'from any agricultural or horticul- analyzing the plaintiff's proposed earth �ssf.'• tural use. Two statutory provisions provide va1845 project, the focus is on the " t' :. y ! i guidance in interpreting whether the scope of r j gu p g p itself and not ... such external consi r�, ;, the agricultural use exemption for a pro- property owners intent or oth. `R `' _ ; gri p ' ations as the ' r = r j1 posed evergreen farm includes an initial, er business activities." County of Ke t" ` j large-scale a cavation project First, G.L. c. Aurora Nat'l Bank Trust ��• t st Nallo. 1107, 170 l ., ' _-: I i 128, § 1A (1992 ed.), defines "agriculture" App.3d 212, 218, 120 Ill.Dec.497, 524 N.E. ;%. ).. and"farming"to include practices by a farm- 262 (1988). er on a farm incident to or in conjunction 1 -; with the growing and harvestinj4of forest The word "incidental"in zoning by-laws p`.` products? Second, G.L. c. 61A, § 2 (1992 ordinances incorporates two concepts; "TI4• • 4 .4:F . ed.), defines "horticultural use to .include means that the use must not be the primary uses "primarily and directly" related to or use of the property but rather one which Is incidental, and "customary and necessary" subordinate and minor in significance 3 to commercial raising. of nursery or green-t But Incidental,' when used to define an se. ` ;N house products'and ornamental plants and cessory use, must also incorporate the con• ` shrubs Thus, the scope of the agricultural cept'of reasonable relationshipwith the. `3;?3 ,r pp�, s�c, or horticultural .use exemption encompasses , mary use.. It is not enough that the•use be - } subordinate; it ° r related activities. Because:the proposed ex- must ';also be attendant or ,<"• 'eavation of 300,000 to 400,000 cubic yards of concomitant.- To ignore this latter aspect of r ""; •, . gravel is not'primarily agricultural or`horti- `incidental'would be to permit any use which is not primary, no matter how unrelated it is cultural, the`issue is whether the proposed i fit,., excavation is incidental to the.creation of a to the primary use." Harvard v. Mtuanl, 4 "cut your own" Christmas tree farm. 360 Mass. 432, 438, 275 N.E.2d 347 (1971), d quoting Lawrence v. Zoning Bd. of Appeals =: [4,5] Uses which are "incidental" to a ofN. Branford, permissible activity on zoned property are A 969).( 2d 552 1 158 Conn. 509, 512�13, 26I ;` ? permitted as long as the incidental use does f,;;'sr It" not undercut the plain intent of the zoning The plaintiff's activity meets neither aspect S' by-law. 2 E.C. Yokley, Zoning Law and of an incidental use. The proposed gravel `�'ix Practice § 8-1 (4th ed. 1978). An accessory removal project is a major undertaking last ;. "incidental" use is permitted as 'neces- Ing i.itre'e or four years prior to the establish- sary, expected or convenient in conjunction ment of the Christmas tree farm. That pro- with the principal use of the land." 6 P.J. ject cannot be said to be minor relative to a .1m Rohan, Zoning and Land Use Controls, proposed agricultural use nor is it minor in ` § 40A.01, at 40 A-3 (1994). Determining relation to the present operation. Nor can 4{ " 2. Section IA provides in part: "'Agriculture' the purpose of selling such products in the rvgu ?!. and 'farming' shall include ... the growing and lar course of business or when primarily and - ifr 1 - harvesting of forest products upon forest land directly used in raising forest products under a 1 and any Dr i tirt, i I ri C t tIl a ns an Incident to or in ,uujuuction with such ` ' I ""'' ire "-r�"at "'�e t,`'; : farming operations...." business; or when primarily and directly used in a related manner which is incidental thereto and 3. Section 2 provides: "Land shall be deemed to represents a customary and necessary use in . IA 4 be in horticultural use when primarily and di- raising such products and preparing them for SO j1 redly used in raising ... nursery or greenhouse market." ' : t"a products, and ornamental plants and shrubs for - PI F 1 F HENRY v. BOARD OF APPEALS OF DUNSTABLE Mass. 1337 - i' f T• Clte as 641 N.E.2d 1334 (Mass. 1994) arry ing activity be said to bear a rea- Id. at 48 & n. 2, 574 N.E.2d 1014, quoting .le relationship to agricultural use. Webster's Third New Int'1 Dictionary 1142 , . ; '•.1,77. v. Building Inspector of Brockton, (1971) ("subordinate, nonessential, or attend- : Mass. 472, 221 N.E.2d 736 (1966) (con- ant in position or significance")and American • ;-,';on of new building to operate agricul- Heritage Dictionary 664 (1976) ("[o]ccurring '" ` , machine on farm in residential district as a fortuitous or minor concomitant inci- 4' `.4€i ` ., ',reasonably related to farming activities dental expenses"). Applying this definition •-' g;• ' . f"thus permitted under zoning ordinance). of"incidental"use,the court then considered ` [..., f 'conclude that the net effect of the volume the net effect of the proposed activity on the t },. , ., ' '�:' to be removed, the duration of the surrounding area. ,sect, and the scope of the removal project In our view, the Appeals Court in Old ,. '`+ g f t " inconsistent with the character of the PP -a • ; ~�' ,, g and intended agricultural uses. Colony Council supra, correctly considered " the "net effect" that the proposed cranberry - `i ` z } _"a think that the plaintiffs case is gov- , bog would have had in the rural residential -. F+ ed by Old Colony Council—Boy Scouts of area and concluded that the • t '`v Zoning Bd. of Appeals of Plymouth, effect was so � _; +r14lassApp.Ct. 46, 574 N.E.2d 1014 (1991). great that the excavation could not be said to ' t be incidental (or attendant or minor) to the f r`Old Colony Council, the Boy Scouts of r `.r erica applied forapermit under a Pl cranberry bog. Id. at 49, 574 N.E.2d 1014 ;,* ,'' PPym- 4 yt r= zoning by-law to excavate 460,000 cubic (given amount of gravel to be excavated, . - . , fi estimated duration of excavation of project, t Y i'' ` : Is of earth in'Order to create a crap- P J t . t figs and profit to.be made from the excavation, Y '! %1 ,-, bog near a campsite in a "Rural Resi- t a 3' " tial District." Id. at 49,574 N.E.2d 1014. excavation„was not incidental to proposed ., . Q e Plymouth zoning board of appeals de= cranberry.bog). Interpreting accessory use k,, yt rovisions:to require both that an incidental , r 1 ed the application on the ground that a P q ti use be minor.relative to the principal use and `" w al permit was required for such an exca= ` that the'incidental use.have a reasonable I ,: 'on project. The plaintiff appealed to the <f ; ; •perior Court which affirmed the denial of relationship to the primary one is essential to r t I. permit. The Appeals Court also affirmed preserve the.power and intent of local zoning• \ On the ground that,considering the volume of 1. a horities.�7 Any other construction of the ft;'01:-tg (`. .earth to be excavated, the duration of the statute would undermine local zoning by-laws f,,',.:;,-,,,-_-,',;,.v.} 'ect, and the funds involved, the excava- or ordinances. Applying the same reasoning , i , �� 3 proposed to this case,considering the amount of gravel g X� tfon was not incidental to the ro osed crap- e " to be removed,the duration of the excavation ,:, f ` 7 bog. Id. (because "the proposal in- : l a 'vowed the removal of 460,000 cubic yards of and the monies to be realized from the exca- # f �5ll over a two and a half year period and an vation, the removal of gravel cannot be said �1u 1 " to be minor or dependent on the agricultural i -ij -, excavation which would provide substantial /M ,funds in excess of the cost of constructing the use a r d' it Y bog, the judge was warranted in upholding The magnitude of the plaintiffs mining % • s. `the boards's conclusion that the excavation ofI;)4 t ] ' ••.,., operation, if permitted, would be "a de facto t material was not incidental to the construe- quarry operation to be carried on in violation ;:e A ,, • r Uon and maintenance of a cranberry bog"). of the [Dunstable] zoning[by-law]." County • ' . "t'In its reasoning, the Appeals Court stated of Kendall v. Aurora Nat'l Bank Trust No. ' E �" the plain meaning of "incidental" to be 1107, supra 170 Ill.App.3d at 219, 120 Ill.Dec. , F� i=tl, - •"s mmething minor or of lesser importance." 497, 524 N.F.,2d 262, We conclude the spe- I .t�;'c ,i I. The Appeals Court cited, 36 Mass.App.Ct. 54, construct pond for irrigation was incidental to ,$ 4) V. - . 58ti. , 627 N.E.2d 484(1994), out-of-State cases in primary agricultural activities). However, in I , ss' . support of its conclusion. See, e.g., Atwater each of the cited cases, the net effect of the I) . ' Township Trustees v. Denzczyk, 72 Ohio App.3d "incidental"use was minor in comparison to the '' 4• ,. • ti r, i , $ 763,596 N.E.2d 498(1991)(excavation to create ' m s •Wri. *: primary use, especially because the agricultural �� � s _ lake and track for horses on fifteen year old ,o _ ' '.. •:' use predated the excavation. Furthermore, to , . Gorse farm held incidental to agricultural activi- 'fri n s -4 the extent that those cases are inconsistent with - a . ty)' VanGundy v. Lyon County Zoning Bd., 237 +l:+� s 7n Kan. 177,699 P.2d 442(1985)(quarrying rock to the result we reach, we decline to follow them. - , 1 g I,t ; _ + - �. 3: • a ., $ 1 1 1. + r' "' • i l i 1338 Mass. 641 NORTH EASTERN REPORTER, 2d SERIES if A x1 t.. cial permit was properly denied because, self-incrimination by finding that refu'aa! �s ' A.(i "[t]o hold otherwise would be to allow the deliberate misconduct. _ '. k a statutory exemption to be manipulated and Affirmed. ' ' ,,' twisted intoprotection for virtually any use `$ of the land as long as some agricultural t'` activity was maintained on the property. 1. Statutes ca270 I" • The [town's] zoningpower would thus be Absent language ;. ., mandating re. . i • rendered meaningless. The Legislature can- tive application of amendment,amended ` " , i/ not have intended such a result when it ute should not be applied to conduct ' ,ET r:t •• c : created a protected status for agricultural ring prior to effective date of amen.. ` purposes." Id r= ^ " } 2. Social Security and Public Welfa,! • :L s r - i i This matter is remanded to the Superior ca659.1 t 14 '` R.? Courts for entry of a judgment affirming the ' Department of Employment and boards denial of a permit. t. t ing's board of review is sole finder of facts cs. i a 1' So ordered unemployment compensation case. `.c t i L• I ri, , 3. Administrative Law and Procedu ,,y *� ` w a �r 763, 788 g .0 * 0 S KEY NUMBER SYSTEM T Social Security and Public Welfare y ' ? e 666 =E; On review of denial of unemploymei t4 2a f_ compensation benefits, courts function is to awe determine whether'review examiner applied R -418 Mass, 855 correct legal principles:'and whether role*. v examiner's.findings: are supported by e�i. h George QUINTAL `" Bence M.G.L.A. c. 30A, § 14(7). ' v' 4. Social Security and Public Welfare • r COMMISSIONER OF the DEPART- a566 T " "' MENT OF EMPLOYMENT Employer has burden of proving that ,. AND TRAINING. � .�r unemployment compensation claimant should Supreme Judicial Court of Massachusetts, be disqualified for willful misconduct � '' M.G.L.A. c. 151A, § 25(e)(2). Bristol. F F t• ," 5. Social Security and Public Welfare x .. ,, Submitted Oct. 3, 1994. a388.5 Decided Nov. 16, 1994. Review examiner could deny unemploy- '''it'-. ' ment benefits based on claimant's admission t that he removed employer's property and his Unemployment compensation claimant . refusal to tell employer what had become of appealed from judgment of the District property, notwithstanding contention that,as ve • :-a- Court, Bristol County, John H. O'Neil, J., employer discharged claimant for theft of affirming decision of Department of Employ- company property, he was disqualified from ment and Training denying benefits. The receiving benefits on basis of conduct that ;,•. Supreme Judicial Court transferred case on was not reason for discharge; discharge and 1' its own initiative from the Appeals Court. denial arose out of game basic conduct. 1 The Supreme u reme Judicial Court, Nolan. J... held � p A4.G.L.A. c. 151A, § G5(e)(2). 1` r`' that: (1) claimant's refusal to tell employer t. '' . what had become of employer's missing bar- 6. Social Security and Public Welfare --`'- rels was deliberate misconduct in willful dis- a388.5 : regard of employer's interest disqualifying Claimant's refusal to tell employer whatr.t i him from receiving benefits, and (2) Depart- had become of missing barrels was deliberate . it.• `• ment did not violate claimant's right against misconduct in willful disregard of employers r` ' V r ; - r-.•.f,--, . i 1 4 MODERN CONTINENTAL v. BLDG. INSPECTOR Mass. 247 i Cite as 674 N.E.2d 247 (Mass.App.Ct. 1997) I a ;, k Nicola Favorito,Quincy,for defendant. �3 I 42 Mass.App.Ct.901 Joel Lewin (Jeremy Ritzenberg with him), I ) j1MODERN CONTINENTAL Boston,for plaintiff. i CONSTRUCTION CO., Herbert W. Vaughan, Charles P. Kindre- 1, -I INC. gan, Boston, for Lookout Ridge Improve- I ment Association, Inc., amicus curiae, sub- ;1 rs v. mitted a brief. 1 ! 1 i , I DING INSPECTOR OF NATICK 1, ): ' No. 95-P-437 RESCRIPT. 1 .1 •- r v• Citingnoncompliance with the zoningb - -i Appeals Court of Massachusetts. P y �` F t I law, the building inspector denied the plain- t.:• • i r 4 � Jan. 2, 1997. tiffs application for a permit to renovate an 1 14_ R existingbarn for the purpose of slaughtering l P P g g A, • 1 , '`a livestock raised on its premises. The plain- d .,,; ,f Landowner brought action challenging tiff then brought this action under G.L. c. ' `$ i`-tfi dung inspector's denial of permit to reno- 240, § 14A, c. 185, § 10), and c. 231A. On �• ii `existing barn for slaughtering livestock cross motions for summary judgment, the y_.on the premises. The Land Court Land Court judge concluded and declared d4� A 1I ed in favor of landowner. Building inspec- that the plaintiffs slaughtering of livestock i`' ; 1.4, :appealed. The Appeals Court held that raised on.its premises was agriculture enti- I f r u hterhouse for" butcheringanimals raised g'�g g, tied to the protection afforded by.G.L. c. . the premises was for agriculture within 40A, § 3.We affirm the judgment. -tf 7 meaning'of statute which prohibits zoning: i 1. The undisputed facts. The plaintiff ;,i i ance or bylaw from prohibiting, unrea- owns the':.locus"in issue, "Lookout Farm," {la eonably:regulating, or requiring special per- which it uses for the production and sale'of i. { for;use, expansion, or reconstruction of fruit,'vegetables,herbs,and livestock,•includ- _ Casting structure for primary purpose of mg ostrich, deer, lamb, calves, sheep, goats, .q? . culture °. �. chicken, pheasants, peacock, •and rabbits, �' Affirmed. The farm is about 110 to 115:acres and has i k a i ti ,'. been in continuous agricultural use for over i 4 �}'' three hundred years. It is situated in a i x L H Zoning and Planning a 279 zoning district in which farms for raising, Y z Slaughterhouse for butchering animals keeping, and selling certain animals are al- ? - raised on the remises was for "agriculture" lowed as matter of right.' P thin meaning of statute which prohibits Animals raised on the locus are kept for A- k _ zoning ordinance or bylaw from prohibiting, breedingpurposes, sold live, or sent off ' .syy- unreasonably regulating, or requiring special s -},.. premises for slaughter. The meat and pool- permit ermit for use, expansion, or reconstruction try produced by the slaughter are sold at a . ,k o structure for primary purpose of agricul- farmstand located on the locus, sold at either ` tore, even though Department of Public i of two restaurants owned by a corporation ,R1 Health, rather than Department of Agricul- controlled by the plaintiffs, or sold to other ! a L s tore, regulated slaughterhouses, and even meat and poultry retailers. •j though slaughtering could become industrial g g g In March of 1993, the United States De- or business use when removed from agricul- x 6 # tural setting. M.G.L.A. c. 40A, § 3, c. 61A, partment of Agriculture approved the plain- $ 1, c. 94, § 120, c. 111, § 1, c. 128, § lA s tiffs application to construct a slaughtering � i facility for sheep, goats, rabbits, and poultry See publication Words and Phrases i..4I, for other judicial constructions and clef- on two floors of an existing barn on the locus. gr,x, x inition.s: To put the size of the proposed project in i. -; k i !. Because this dispute was argued and decided discuss the zoning by-law. �i , i . 'c' under G.L. c. 40A, § 3, %+�e need not set out or 3 t , "'< 5- a l i. �t•:. 4 t er fJ. L 248 Mass. 674 NORTH EASTERN REPORTER, 2d SERIES context the total of all building square feet Ct. 401, 494 N.E.2d 42 (1986), the Land ' ki on the locus is approximately 50,000,and the Court judge reached the opposite conclusion. ,-•--f--: slaughterhouse will occupy about 2,610 See Steege v. Board of Appeals of Stow, 26 4 ;, square feet of the total 14,400 square feet in Mass.App.Ct. 970, 527 N.E.2d 1176 (1988), s}. the barn. Two months after Federal approv- We see no error in the Land Court judge's . ,_. al of the project, the plaintiff applied for a reasoning and adopt it as our own. •ek,-. building permit to alter the barn for the Various statutes defining "agriculture" r-- slaughterhouse. The building inspector de- (see, e.g., G.L. c. 61A, § 1; G.L. c. 111, § 1; nied the application on the stated basis that a G.L. c. 128, § 1A)as well as dictionaries(see, "slaughterhouse does not comply" with the e.g.,Webster's Third New Intl. Dictionary 44 • zoning by-law. [1993]; Black's Law Dictionary 68 [6th 2. Discussion. General Laws c. 40A, § 3, ed.1990]) include within their definitions the as amended by St.1989, c. 590, provides in activity of preparing animals for market. pertinent part: "No zoning ordinance or by- We think it reasonable to regard the slaugh- law shall ... prohibit or unreasonably regu- ter of animals as a normal and customary late, or require a special permit for the use, part of preparing them for market. It then expansion, or reconstruction of existing follows from the acceptably broad definitions structures thereon for the primary purpose of the word "agriculture" that a slaughter- '• of agriculture, horticulture, floriculture, or house used for the butchery of animals viticulture ... provided that during the raised on the premises is primarily agricul- months of June, July, August, and Septem- tural in purpose. , ber of_ every year, the majority of such ' j Our conclusion does not conflict with Lan- products for sale, based on either gross sales gevin v.'Superintendent of Pub: Bldgs. of ` dollars or volume,have been produced by the Worcester, 5'Mass.App.Ct. 892, 369 N.E.2d owner of the land on which the facility is 739 (1977).' The narrow holding of that case, 'j • located, except that all such activities may be that the term"processing"was'broad.enough '' limited to parcels of more than five acres in to bring`a slaughterhouse operati•on a within`' area not zoned for agriculture,'horticulture, . _. : ' . the scope'of'the zoning ordinance`which per floriculture,or viticulture." ; timitted as of right the gm]anufacture,assent- , It is the position of the building inspector bly,processing, packaging,or other` ndustri="•°i _:-.. and the amicus curiae that the use of words al operations Within'.a particul.ar''district; . •.' such as "raising" and"keeping"in respect to does not compel the conclusion that the on- ' animals in the statutory and dictionary defi- site processing or slaughtering, of•animals - • nitions of "agriculture" is an indication of a raised on the premises cannot'be an agricul- legislative intent to exclude the slaughtering tural activity. See Deutschmann v. Board of and butchering of livestock from agricultural Appeals of Canton., 325 Mass. 297, 301, 90 activities. For support,they cite to decisions N.E.2d 313 (1950). The fact that an activity, from foreign jurisdictions.2 They claim that such as slaughtering,can become an industri- additional support for their position is found al or business use when removed from an in the fact that slaughterhouses are regulat- agricultural setting does not mean that activ- ed by the Department of Public Health, see ity cannot be primarily agricultural in pur- G.L. c. 94, § 120, rather than the Depart- .- pose when it has a reasonable or necessary ment of Agriculture,see G.L.c. 128. relation to agricultural activity being con- Starting with the premise that the "'agri- ducted on the locus. See Jackson v. Build- cultural use' exemption has been interpreted ing Inspector of Brockton, 351 Mass. 472, broadly by the appellate courts," Tisbury v. 478, 221 N.E.2d 736 (1966). Further, the Martha's Vineyard Commn., 27 Mass.App. fact that slaughterhouses are regulated by Ct. 1204, 1205, 544 N.E.2d 230 (1989), and the Department of Public Health, see G.L. c. tracking the analysis used in Building IN 91, § 120, rather than the Department of ,1;:ilt,r i}/•:'J f7A ! tt"•t.!., �_.r'. Ma .. Ai.v �,1k�i,tat ut, m 1 L,ete .-. 12„ k rf r r t - 2 It is unnecessary to discuss those decisions are readily distinguishable on the basis of their because, as noted by the Land Court judge,they facts and the applicable statutory provisions. .$ i ti '' COM. v. WALKER Mass. 249 1 ' N :; -. k Cite as 674 N.E.2d 249 (Mass.App.Ct. 1997) Y, : to a determination of whether the particular statement to social worker did not ';. firing is being done for an agricultural impermissibly restrict defendant's right to 1 • -- dustrial purpose. cross-examine complainant. i f ` '' i ;e record gives no support to the build Affirmed. i , i, pector's concern that the plaintiff in- h; • �� ;" to slaughter animals other than those i w Y on the locus. The judgment itself 1. Indictment and Information«191(8) a ts the permissible scope of that activity to i Indecent assault and battery on child li , ; stock raised on the premises. Moreover, under 14 was lesser included offense of I , # i h 461 nditions may be placed on a building charged crime of forcible rape on child under , �.1 ' •t to prevent its use for unlawful ur- ;. E ` T 4•- p 16, even though indictments did not name ;, 1 ' , lsµ • Kia her v. Board of Appeals of Rayn complainants or state their ages to be under ?t., 'i � y , 33 Mass.App.Ct. 111, 115, 596 N.E.2d •' 'l. # 14, where defendants discovery pleadings . 3; L e=, es ' (1992).• showed that it was undisputed before trial , i s''; { Judgment affirmed. that complainants were under 14. M.G.L.A !r> x c.265, §§ 13B,22A '' '°" �,� � ` !**# „ O E KEY NUMBER SYSTEM - � t r T 2. Indictment and Information a191(.5) • }' kn . • 4 `. In determining whether one offense is E R „ • A- lesser included offense of another, question . ° 42 Mass.App.Ct. 14 that must be answered is whether all ele- '- auCOi\IMONWEALTH ments of lesser offense are included within at- i ` greater offense,not vice versa. ' 1 ` . Gerald WALKER. 3. Indictment and Information a191(.5) r j, Doctrine of lesser included offenses •�s No. 95—P-450. 1 t w _'- serves-.public-purpose: it allows jury to con- is ¢ , - ''''' ..-:1":. Appeals Court of Massachusetts, vict defendant of offense established by evi-:. r x - Hampden. 'dence rather than forcing it to choose be tween convicting defendant of offense not =bid' {µ Argued Oct. 15, 1996. fullyestablished byevidence or acquitting ` Y ` � q g � , v �`; 4 • .x.4 •' Decided Jan. 2, 1997. even though defendant is clearly guilty of f ; ` some offense. x e .: Further Appellate Review Granted s r r April 3, 1997. + , i 4. Criminal Law a1137(1) R 'S F Pru; Defendant, who at charge conference 4 , °'". -• Defendant charged with forcible rape on withdrew objection to lesser included offense Fg. , ;,�` child under 16 was convicted of indecent instruction after trial judge stated that he y 6 assault and battery on child under 14 follow- would include the instruction because evi- , iT-i•in1{ )iii., , —, — „. ,nn a ,,ul f. cj.e r7- .,r•fil.c . 1 6t In a a.., ....o 411.: .,i.t i,:., .,_ :L, ! G S :The Appeals Court, Gillerman, J., held that: tion, and could not on appeal ciaun to Have , (1) under circumstances, crime for which de- been prejudiced by instruction. , . i`�rfendant was convicted was lesser included }� 5. Criminal Law c '632(5) offense of charged crime; (2) defendant did i not establish the reasonable foundation of Defense counsel's representations that rior similar sexual abuse necessary ary to allow public records in acrimonious custody battle g t � iT 4 t him +,, :,1. • `CF - ':, --O,a .I•,,;t •-,r,ii-' 't'c tt'.r}bnr Ln.J �1 t ; P 1 :11 Eb' a tti recollection about ,\nether she had made abuse necessary under RTc i en. for defendant ' > v- - S K 4 • , . . . • • , ' ..".e • • . . . . . . • . PEPERHAZARD LLP LAW OFFICES 150 FEDERAL STREET, 28TH FLOOR BOSTON, MASSACHUSETTS 021 1 0-1 745 JULIE C.MOLLOY 617/695-9090 FACSIMILE 617/695-9255 (617)695-9090 jmolloy@pepehazard.com Via Facsimile March 5, 1999 Mr. Ralph Crossen Building Commissioner Town of Barnstable _ . 367 Main Street Hyannis, MA 02601 Re: - Brenda Tri &Victor Cillis Oktober Farm, 2051 Main Street, West Barnstable MA Dear Mr. Crossen: Attached please find a January.14, 1998 letter from the Massachusetts Department of Food and Agriculture to the Zoning Board of Appeals for the Town of Barre, addressing the issue of a horse operation. As you can see, this Department cites to both Chapter 128 of the Massachusetts General Laws and the Steege case in reaching its decision that a riding academy is an agricultural use provided with exemption pursuant to Section 3 of Chapter 40A. Respectfully, I would again ask that you rescind your Cease and Desist Order. If there are any questions, please feel free to contact me. ;et_ ruly yours, . Mo Attachment cc: Ruth J. Weil, Esq. Brenda Tri &Victor Cillis, M.D. BOSTON MI HARTFORD EEC SOUTHPORT - MAR. 5. 1999 12:43PM DEPT OF FOOD+AGRICUL NO. 7807 P. 1 COMMONWEALTH OF MASSACHUSETTS Ir=''lid=.— EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS = DEPARTMENT OF FOOD AND AGRICULTURE `— 100 CAMBRIDGE ST.. BOSTON. MA 02202 617-727-3000 FAX 727-7235 • January 14, 1998 ARGEO PAUL CELLUCCI VIA FACSIMILE TRUDYCOXE Governor (978)355-6152 Secretary Zoning Board of Appeals JONATHAN L.HEALY Commissioner Town of Barre Henry Woods Municipal Building Barre,MA 0I005 Re: Glenn and Sandra Dubey,467 Loring Road,Barre,MA 01005 M.G.L. Chapter 40A,Section 3 Dear Members of the Zoning Board of Appeals: I wanted to take this opportunity to submit the Massachusetts Department of Food& Agriculture's(the"Department's")position on the Dubey property in your town.-The Department finds that the horse operation being conducted at the property by the Dubeys constitutes an agricultural use and accordingly Massachusetts General Laws Chapter • 40A,Section 3 ("MGL c. 40A, § 3")applies. In the nearby Town of Stow,a similar situation arose in 1984 in which the Massachusetts Land Court ruled that the operation of a boarding stable for horses and a riding academy was an agricultural use protected by said MGL c.40A, §3. On appeal,the Massachusetts Appeals Court affirmed the ruling of the Land Court,see Mitchell\Steege vs. Board of Appeals of Stow,26 Mass. App. Ct. 970(1988). Furthermore,the applicable definition of"agriculture"at Massachusetts General Laws,Chapter 128,§ IA,'was amended in 1995 to include"the keeping of horses as a commercial enterprise." It is my understanding that the Dubey's farm meets this definition. Therefore,MGL c.40A§ 3 applies and the Dubey's current land use does not require a special permit The Commonwealth's current and historical commitment to supporting agriculture is clearly evidenced in its body of laws. The Constitution establishes "the duty of legislatures and magistrates ...to encourage private societies and public institutions, rewards and immunities,for the promotion of agriculture..." (Mass. Const.Pt.2,c. 5, § 2), and Article 97 of the Amendments to the Constitution declares as a public purpose "the protection of the people in their right to the conservation,development and utilization of the agricultural ...resources." These agricultural mandates are restated and amplified in Executive Order 193,which protects land in active agricultural use. Further agricultural protections enacted by the Legislature include authorization for the State's Farm Energy Discount Program, Agricultural Incentive Areas, Agricultural Preservation District Program, and Farm Viability Program,and limitations on nuisance actions against farmers. Massachusetts has a rich tradition ofprotecting and promoting the keystone of its founding,agriculture. -� ' I4� `�,of Post•Ir Fax Note 7671 Date 3/S A,f 1145.5" Oj , To at1L�G//��K,,�OitOV FrorL-. .�Ir1C/D�Cf11CI. coJDePt g f 4.1NC1t l.E,rti:R PRtiat,47- 8 Phone 0I 6,? ,pj-3oao,ctzs d FaX B FoxA �e� � 55 .MAR. 5. 1999 12:44PM DEPT OF F00D+AGRICUL NO. 7807 P. 2 • • The need to actively foster agriculture is more urgent today than it was when any of the provisions listed above were written. Both the number of Massachusetts farms and their acreage are falling at alarming rates. From July 1997 to July 1998 alone,Massachusetts lost 27 dairy farms,and there are only about 300 such farms remaining today. As farm lands are developed,valuable soils are lost forever,along with open space,family traditions,a sense of community,and other qualities that make Massachusetts special. While agriculture is a five hundred and thirty million dollar industry in the Commonwealth,and agritourism is a growing source of income for towns,these economic benefits are just as threatened today_ MGL c.40A, § 3,one of the many Massachusetts statutes enacted to foster agriculture, explicitly preempts local zoning laws. Therefore,under the Home Rule Amendment to the Massachusetts Constitution,local zoning ordinances or by-laws cannot frustrate its purpose. MGL c.40A,§3 provides,in part: No zoning ordinance or by-law shall ... prohibit,or unreasonably regulate, or require a special permit for the use,expansion or reconstruction of existing structures ... [on land] ._.for the primary purpose of agriculture,horticulture, . floriculture,or viticulture,including those facilities for the sale of produce, and wine and dairy products,provided that during the months of June,July,August - and September of every year or during the harvest season of the primary crop • raised on land of the owner or lessee,the majority of such products for sale ... have been produced by the owner or lessee of the land on which the facility is , . located... Statutes like this foster vanishing farms and ways of life and the benefits they bring to communities,the economy and the environment.While localities may,consistent with this statute,develop interpretations that provide more explicit protection to farmers against local regulation than a narrow interpretation of this statute may allow,they cannot decide to offer less. To do so would be to defeat the very purpose of Chapter 40A, Section 3. I hope this will help you in your review of the legal arguments presented at the hearing conducted on December 2, 1998 and the subsequent decision to be rendered by your Board. If you would like to discuss this with Department counsel,please do not hesitate to contact the Department. Very truly you , athan L.Healy ommissiorler • JLl-1/mm I FARM BUREAU • Massachusetts Farm Bureau Federation, Inc. • 466 Chestnut Street 0 Ashland, MA 01721-2299 PHONE (508)881. 4766 o FAX (508)881- 4768 February 1, 1999 Mr. Richard Stevens,Building Inspector Town of Bamstable Dept. of Health Safety&Environmental Services Building Division 367 Main Street Hyannis, MA 02601 RE: Mrs. Brenda Cillis, 2051 Main Street Dear Mr. Stevens: I am writing on behalf of Brenda Cillis, in response to your letter of January 28,which alleges that Mrs. Cillis is conducting an inappropriate business on her property. As someone who works with zoning issues throughout Massachusetts, I can assure you that Mrs. Culls' farm business is allowed under Massachusetts General Laws, Chapter 40A,Section 3. MGL 40A;3 provides that no ordinance or bylaw.may `prohibit, unreasonably regulate, or require a special permit for use of land for the primary purpose of agriculture...except that all such activities may be limited to parcels of more than five acres in area not zoned for agriculture... " MGL 128;1A defines "Agriculture and farming"to include "the keeping of horses as a commercial enterprise"which is exactly the business conducted on the Cillis property. Mrs. Cillis is also giving horseback riding lessons,which is allowed by caselaw "Steege v. Board of Appeals(1988) 26Mass.App.970, 527 NE2d 1176. Which I have attached for your information. Therefore, I have advised Mrs. Calls that she does not need to apply for a special permit, or seek relief from the Zoning Board as her activities are clearly exempt from zoning regulation in accordance with state law. Please feel free to contact me if we can provide any further information on this matter. Sincerely, Douglas P. Gillespie Director of Governmental Relations Attachments c.c. Mrs. Brenda Cillis, 2051 Main St.,West Barnstable, MA 02668 Peter Watts,Forestdale, Cape& Islands Farm Bureau (also Sandwich Building Inspector) Dick Loring,Sandwich, President, Cape& Islands Farm Bureau Larry McCormick, Chief Legal Counsel, MA Dept. Food& Agriculture FARM BUREAU Massachusetts Farm Bureau Federation, Inc. 466 Chestnut Street 0 Ashland, MA 01721-2299 • PHONE (508)881. 4766 0 FAX (508)881-4768 MASSACHUSETTS "RIGHT TO FARM" LAWS March 28, 1996 FACT SHEET • Subject: MASSACHUSETTS"RIGHT TO FARM" LAWS The Massachusetts General Laws contain four different chapters which provide farmers relief from excessive regulation or nuisance complaints.These are: (1)Chapter 30A"State Administrative Procedure",Section 18 This section requires all levels of government to conduct impact assessments relative to the impact of proposed laws or regulations upon agriculture pi wi.to the adoption Uf 3 Ue/i laws or regulations. The Massachusetts Department of Food& Agriculture has developed guidelines for agencies to follow in • preparing the impact assessment, and copies are available from Massachusetts Farm Bureau Federation. Wording of M.G.L. Chapter 30A, Section 18 is as follows: t. 30A:18. Rules, regulations, etc. impacting state agricultural operations; public postings prior to enactment; impact assessments. Section 18. All state, regional, and municipal agencies, boards, corn- 1 missions, before any rule, regulation, law or other restriction is enacted, 2 shall make public and post in writing whether or not such restrictions 3 will impact on agricultural operations based in the commonwealth. 4 Further, if such rule, regulation, law or other restriction is determined to 5 have a potential impact on agriculture, the responsible agency in consul- 6 tation with the department of food and agriculture, shall conduct an 7 impact assessment to determine the extent of such impact, including, but 8 not limited to: the effect on future land use and related environmental 9 impacts, including costs and submit to the joint committees on natural 10 resources and agriculture and to the house and senate committee on 11 ways and means a copy of their findings forty-five days prior to 12 promulgation. 13 (2)Chapter 40A "Zoning",Section 3 This section of Zoning law restricts areas which cities and towns may regulate relative to agriculture. horticulture,floriculture, and viticulture. This section relates to many areas, including farm buildings, retail farmstands, etc., on parcels of five acres or more. There is a great deal of specific ca.selati'in our files relative to court decisions which effect agriculture. The first paragraph of M.G.L. Chapter 40A, Section 3 reads as follows: (Continued Next Page) 40A:3. Subjects which zoning may not regulate; exemptions; public hearings; temporary manufactured home residences. Section 3. No zoning ordinance or by-law shall regulate or restrict 24 the use of materials, or methods of construction of structures regulated 25 by the state building code, nor shall any such ordinance or by-law 26 prohibit, unreasonably regulate or require a special permit for the use of 27 land for the primary purpose of agriculture, horticulture, floriculture, or 28 viticulture; nor prohibit, or unreasonably regulate, or require a special 29 permit for the use, expansion, or reconstruction of existing structures 30 thereon for the primary purpose of agriculture, horticulture, floriculture, 31 or viticulture, including those facilities for the sale of produce, and wine 32 and dairy products, provided that during the months of June, July, 33 August, and September of every year or during the harvest season of the 34 primary crop raised on land of the owner or lessee, the majority of such 35 products for sale, based on either gross sales dollars or volume, have 36 been produced by the owner or lessee of the land on which the facility is 37 located, except that all such activities may be limited to parcels of more 38 than five acres in area not zoned for agriculture, horticulture, floricul- 39 ture, or viticulture. For such purposes, land divided by a public or 40 private way or a waterway shall be construed as one parcel. No zoning 41 . ordinance or by-law shall exempt land or structures from flood plain or 42 wetlands regulations established pursuant to general law. For the 43 purpose of this section, the term horticulture shall include the grog+ing. 44 . and keeping of nursery stock and the sale thereof. Said nursery stock 45 shall be considered to be produced by the owner or lessee of the land if it. , 46 is nourished,+.maintained and managed while on the premises. 47 • (3)Chapter 111 "Public Health",Sections 1, 125A,and 143 Public Health statutes provide a key protection for farming operations conducting generally accepted farming activities from being deemed a nuisance by the Board of Health. Such accepted activities include spreading of manure on farmland, noise from farm operations, etc. The three relevant sections of Chapter 111 are Section 1 (Definitions) which contains a definition of "Farming"or "Agriculture". Section 125A contains the nuisance exemption language, and Section 143 removes piggeries from the exemption in Section 125,4. The actual wordings are as follows: 111:1. Definitions. "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. 111:125A. Review of order adjudging the operation of a ff :m to be a nuisance. Section 125A. If, in the opinion of the board of health, a farm or the 1 operation thereof constitutes a nuisance, any action taken by said board 2 to abate or cause to be abated said nuisance under sections one hundred 3 and twenty-two, one hundred and twenty-three and one hundred and 4 twenty-five shall, notwithstanding any provisions thereof to the contrary, 5 be subject to the provisions of this section; provided, however, that the 6 odor from the normal maintenance of livestock or the spreading of 7 manure upon agricultural and horticultural or farming lands, or noise 8 from livestock or farm equipment used in normal, generally acceptable 9 farming procedures or from plowing or cultivation operations upon 10. agricultural and horticultural or farming lands shall not be deemed to 11 constitute a nuisance. 12 In the case of any such nuisance a written notice of an order to abate 13 the same within ten days after receipt of such notice shall first be given 14 ' as provided in section one hundred and twenty-four. If no petition for 15 review is filed as herein provided, or upon final order of the court, said 16 board may then proceed as provided in said sections one hundred and 17 twenty-two, one hundred and twenty-three and one hundred and twenty- 18 five, or in the order of the court. If the owner or operator of said farm 19 within said ten days shall file a petition for a review of such order in the 20 district court for the district in which the farm lies, the operation of said 21 order shall be suspended, pending the order of the court. Upon the 22 filing of such petition the court shall give notice thereof to said board, 23 shall hear all pertinent evidence and determine the facts, and upon the 24 facts as so determined review said order and affirm, annul, alter or 25 modify the same as justice may require. The parties shall have the 26 same rights of appeal on questions of law as in other civil cases in the 27 district courts. 28 111:143. Trade or employment resulting in or attended by noisome and injuri- ous odors; assignment of places; appeal. Section 143. No trade or employment which may result in a nuisance 1 or be harmful to the inhabitants, injurious to their estates, dangerous to 2 the public health, or may be attended by noisome and injurious odors 3 shall be established in a city or town except in such a location as may be 4 assigned by the board of health thereof after a public hearing has been 5 held thereon, subject to the provisions of chapter forty A and such board 6 of health may prohibit the exercise thereof within the limits of the city or 7 town or in places not so assigned, in any event. Such assignments shall 8 be entered in the records of the city or town, and may be revoked when 9 the board shall think proper. 10 The department of environmental protection shall advise, upon re- 11 quest, the board of health of a city or town previous to the assignment of 12 places for the exercise of any trade or employment referred to in this 13 section, and any person, including persons in control of any public land. 14 aggrieved by the action of the board of health in assigning certain places 15 for the exercise of any trade or employment referred to in this section 16 may, within sixty days, appeal from the assignment of the board of 17 health to the department and said department may, after a hearing 18 rescind, modify or amend such assignment. 19 Notwithstanding any provision in section one hundred and twenty- 20 five A of this chapter, this section shall apply to the operations of 21 • piggeries. 22 7 DHCD - Community Profiles -Barnstable Page 1 of 20 BARNSTABLE Barnstable County SEAL NARRATIVE GEOGRAPHY GOVERNMENT DEMOGRAPHICS HOUSING CHARACTERISTICS EDUCATION ECONOMIC DEVELOPMENT TRANSPORTATION CULTURE AND RECREATION MISCELLANEOUS MUNICIPAL FINANCE N TIVE Narrative - The Town of Barnstable includes seven villages within its boundaries. Each village has unique and significant cultural and historical qualities. Centerville, located on the south side, is primarily residential, includes the Christian Camp Meeting Association and has a beautiful beach. Osterville is located on the south side, is primarily residential and includes inlets and harbors for fishing and boating. Hyannis is the town's central business/commercial district which includes town offices and several shopping malls. Hyannis is also a fishing village and its harbor provides steamship access to Martha's Vineyard and Nantucket Islands. Marstons Mills is primarily residential and is located on Route 28 . Cotuit is a village located on a peninsula on the south side, is primarily residential and has several small beaches. West Barnstable is located on the north side, is primarily residential and sparsely populated. Barnstable is located on the north side which houses the County Complex and has a working harbor and several small beaches. (Seal and narrative supplied by community) Department of Housing and Community Development, Argeo Paul Cellucci,Governor,Jane Wallis Gumble,Director A4 IGEOGRAPHY Location Eastern Massachusetts, located on the "bicep" of the Cape Cod arm. Bordered by Cape Cod Bay on the north, Nantucket Sound on the south, Sandwich and Mashpee on the west, and Yarmouth on the east. Barnstable is 53 miles east of Fall River, 69 miles southeast of Boston, and 250 miles from New York City. http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 DHCD - Community Profiles -Barnstable Page 2 of 20 - Total Area: 76.26 sq. miles Land Area: 60.05 sq. miles Population: 40,949 Density: 682 per sq. mile Climate (National Climatic Data Center) (Hyannis Station) Normal temperature in January 28.4°F Normal temperature in July 70.4°F Normal annual precipitation 43.9" U.S.G.S. Topographical Plates Hyannis, Cotuit, Sandwich Regional Planning Agency Cape Cod Commission t Metropolitan Statistical Area (1993 Defmition) Barnstable-Yarmouth Department of Housing and Community Development, Arxeo Paul Cellucci,Governor.Jane Wallis Gumble,Director I, GOVERNMENT Municipal Offices i Main Number: (508) 790-6200 Form of Government Council-Manager Year Incorporated As a town: 1639 Registered Voters(Secretary of State 1994) http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 DHCD -Community Profiles - Barnstable Page 3 of 20 Number Total Registered 25,451 Democrats 6,938 27.3 % Republicans 6, 131 24.1 % Other parties 12 0.0 % Unenrolled Voters 12,370 48.6 % Legislators US Senator Edward M. Kennedy US Senator John F. Kerry US Congressman . 10th Dist William D. Delahunt State Senator Henri S. Rauschenbach State Rep John C. Klimm State Rep Eric T. Turkington Department of Housing and Community Development, - • Argeo Paul Cellucci,Governor,Jane Wallis Gumble,Director kEMOGRAPHIC S Population Trends(M.I.S,E.R.) • Persons % change 1980 30,898 1990 40,949 32.5 2000 .46,417 13.4 2010 51,684 11.4 Persons by Sex(1990 US Census) Male 19,406 Female 21,543 Age Distribution(1990 US Census) • Persons % Under 5 2,671 6.5 5-14 4,775 11.7 15-44 17,200 42 .0 45-64 8, 018 19.6 65 & ?vri.. 8,285 2U Vital Statistics(Dept.of Public Health 1995) Statewide 1993 Resident Births 518 per 1,000 women 15-44 56.3 57.9 http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 DHCD -Community Profiles -Barnstable Page 4 of 20 1993 Resident Deaths 478 per 100,000 residents 1,107 913 Race & Ethnicity(1990 US Census) Persons White 38,213 93 .3 Black 1,078 2.6 Am. Indian, Eskimo or Aleut 271 0.7 Asian or Pacific Islander 279 0.7 Hispanic Origin 701 1.7 Other 407 1.0 Households(1990 us Census) % change 1980 12,014 1990 16,601 +38.2 Household Size(1990 US Census) 2.40 persons per household - • Households by Type(1990 US Census) Households Married Couple Family 8,855 53 .3 Male Householder 478 2.9 Female Householder 1,783 10.7 Non-Family Household 5,485 33 .0 Income Distribution(1990 US Census) Households Less than $5,000 490 3.0 $5,000 - $9,999 1,383 8.3 $10,000 - $24,999 4, 179 25.2 $25,000 - $34,999 2,542 15.3 $35,000 - $49, 999 3, 175 19.1 $50,000 - $74,999 2,818 17.0 $75-000 - $99, 999 1,016 6.1 $100,000 or more 990 6.0 Median Household Income $33,411 state rank 263 % of state avexaye 30 4* Per Capita Income $17,376 state rank 140 % of state average 100.9% http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 - DHCD -Community Profiles -Barnstable Page 5 of 20 Sources of Income(1990 US Census) Number of Average Households Income Wage & salary 11,705 $40,266 Nonfarm self-employed 2,496 27,618 Farm self-employed 135 8,863 Social Security 5,729 8,464 Public assistance 943 4,716 Retirement 3,656 11,769 Interest 6,667 8,780 Other 1, 819 4,497 Poverty Status(1990 US Census) Statewide Persons for whom status determined 39,976 5,812,415 Below poverty level 2,711 519,339 6.8% 8.9% • Department of Housing and Community Development, Argeo Paul Cellucci,Governor.Jane Wallis Gumble.Director ® OUSING CHARACTERISTICS Housing Units(1990 US Census) Units Total Units 23,370 Total Occupied 16,601 owner occupied 11,764 70.9 renter occupied 4,837 29.1 Total vacant 6,769 for sale 479 7.1 for rent 623 9.2 other vacant 5,667 83.7 Owner Vacancy Rate 3.9 Rental Vacancy Rate 11.4 Median Value (owner occupied) $160, 000 Median Contract Rent (renter occupied/ Value: Value is the Census respondent's estimate of how much the property, including lot, would sell for if it were for sale. Type of Structure(1990 US Census) http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 DHCD- Community Profiles -Barnstable Page 6 of 20 - Units Single Unit 19,492 83 .4 2-4 Units 1,495 6.4 5 or More Units 2, 097 9.0 Other 286 1.2 Year Structure Built(1990 US Census) Units 6 1989-March 1990 508 2.2 1980-1988 6,930 29.7 1970-1979 6,114 26.2 1960-1969 3,331 14.3 1950-1959 2,028 8.7 1940-1949 1,116 4.8 1939 or earlier 3,350 14.3 Home Sales(Banker&Tradesman) Number % change 1990 983 1991 953 -3.1 1992 1,150 20.7 1993 1,292 12.3 . 1994 _ 1,162 -10.1 Home Sales &Home Prices Data for all transactions between$25,000 and$1,000,000. Condominium sales and prices are included. Median Sales Price(Banker&Tradesman) Price % change 1990 120,000 1991 115, 000 -4 .2 1992 110,000 -4.3 1993 115, 000 4 .5 1994 105,000 -8.7 Residential Building Permits(us Census Bureau 1994) (New Construction) Single Multi Family Family 1990 207 0 1991 183 3 1992 188 0 1993 178 8 1994 241 0 Subsidized Housing Units(DHCD 1993) http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 DHCD - Community Profiles -Barnstable Page 7 of 20 • Aggregate Number 696 % Subsidized 3.75 Subsidized Housing Units: The number of housing units which count toward the municipality's 10% goal for low- and moderate-income housing. It includes both subsidized affordable units and market rate units in certain eligible subsidized developments. Public Housing Units(DHCD 1993) Conventional State 257 Conventional Federal 69 Rental Assistance(DHCD 1994) State (MRVP) 263 Federal (Section 8) 358 Department of Housing and Community Development, Argeo Paul Cellucci,Governor,Jane Wallis Gumble.Director EDUCATION Student Population(Dept.of Education) Total students 91/92 6,383 at public schools 97.0% at private schools 3.0% Pupil Cost(Dept.of Education) Integrated Per Pupil Cost 91/92 $4,274 state average $5,034 Educational Attainment(1990 US Census) High School Graduate or Higher 87.6% Bachelor's Degree or Higher 26.4% School District Membership(Dept.of Education) Barnstable (K-12) rape Cod. f 09 1.2) School Enrollment(Dept.of Education) Enrollment Change Statewide 94/95 1981-95 Barnstable 6,812 26.2% -10.2% http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 DHCD -Community Profiles -Barnstable Page 8 of 20 • Cape Cod 518 -33.9% Dropout Rate(Dept. of Education) Rate 93/94 Statewide Barnstable 5.5% 3.7% Cape Cod 4.7% Average Teacher Salary(Dept.of Education) Salary 93/94 Statewide Barnstable $39,569 $39, 023 Cape Cod $35,457 Public Schools(Dept.of Education) Barnstable West Barnstable Elem K-05 Centerville Elementary K-05 Cotuit Elementary 03-05 • . Hyannis Elementary K-05 _ Hyannis West Elementary K-05 Marstons Mills Elem K-02 • Marston Mills East K-05 Osterville Elementary K-03 Osterville Bay Elementary K4-05 Middle School Grade 6 -06 Barnstable Middle 07-08 Barnstable High 09-12 Cape Cod Cape Cod Region Voc Tech 09-12 Colleges and Universities(Higher Education Coordinating Council) Cape Cod Community College For further school district information contact: Information & Outreach Services Department of Education 350 Main Street Malden, MA 02148 Phone: (781) 388-3300 Department of Housing and Community Development, Argeo Paul Cellucci.Governor,Jane Wallis Gumble.Director ECONOMIC DEVELOPMENT http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 r DHCD -Community Profiles -Barnstable Page 9 of 20 ECONOMIC BASE Labor Force(1990 US Census) Employed 18, 810 Unemployed 1,467 Unemployment Rate 7.2% statewide 6.7% Industry Groups of Residents(1990 US Census) Agriculture 500 Mining 24 Construction 1,763 Manufacturing 1,766 Transportation & Communication 1,594 Wholesale & Retail Trade 4,765 Finance, Insurance & Real Estate 1,448 Government 814 - Services 6,136 Total 18,810 EMPLOYMENT, PAYROLL & SALES Average Annual Employment by Place of Work(Dept.of Employment&Training 1993) Agriculture 249 Mining C Construction 693 Manufacturing 955 Transportation & Communication 1,159 Wholesale & Retail Trade 7,436 Finance, Insurance & Real Estate 994 Government 2132 Services 7, 880 Total 21521 Total Annual Payroll ($,000) 492,483 Average Annual Wage ($) 22,884 Number of Establishments 1,931 Employment & Wages: Data for employment and wages covered by unemployment compensation. Data is confidential (identified with a "C") if there are less than three reporting units in the total, or if one unit accounts for 80 % or more of the total. Reporting problems of multi-location employers may result in some over or under reporting. Largest Employers (Supplied by community 1993) http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 • DHCD -Community Profiles -Barnstable Page 10 of 20 # employees Cape Cod Hospital 1,325 Stop 'n Shop 300 Cape Cod Times 280 Barnstable Public Schools 265 Barnstable County Government 260 Retail Establishments(US Census of Retail Trade 1992) Establishments 578 Sales ($,000) 748,993 - Per Capita Sales ($) 18,290 Paid Employees in work week 6,194 Retail Sales by Retail Group (US Census of Retail Trade 1992) Establishments Sales ($,000) Bldg. materials, garden supplies 24 51,130- General merchandise 10 . 91,433 Food stores 56 108,148 Automotive dealers 26 173,593 Gasoline- service stations 26 31,765 Apparel, accessories stores 78 75,201 Furniture, home furnishings 57..- 47,,7,80 Eating & drinking places 137 - 67,844 • Drug & proprietary stores • • 15 22,782 • • Misc. retail stores 149 79,317 . Retail Establishments & Sales: Data is reported for municipalities of 10,000 inhabitants or more. Sales is withheld (indicated with a"D")where it would disclose the operations of individual companies or businesses. ECONOMIC DEVELOPMENT ORGANIZATIONS (Supplied by community 1993) Town of Barnstable Economic Development Commission Hyannis Area Chamber of Commerce Hyannis Economic Development Corporation Cape Cod Chamber of Commerce • Cape Cod Office of Economic Development Department of Housing and Community Development Argeo Paul Cellucci.Governor.Jane Wallis Gumble.Director http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 DHCD -Community Profiles -Barnstable Page 11 of 20 TRANSPORTATION TRANSPORTATION AND ACCESS Barnstable is situated on Cape Cod, a 65-mile long sandy peninsula comprising Barnstable County. The Cape has excellent highway, rail, bus and air connections to other parts of New England. Air, bus, and passenger rail service expand during he summer months to accommodate the large numbers of tourists. Major Highways Principal highways are U.S. Route 6 and State Routes 6A, 28, 132, and 149. Rail Amtrak provides service to Hyannis from Memorial Day to Labor Day only; leaving Boston on Friday and returning to Boston from Hyannis on Sunday. The Bay Colony Railroad provides freight rail service to Barnstable. Contact number: (617) 380-3556. The Cape Cod Scenic Railroad runs a seasonal excursion train between Hyannis and the Cape Cod Canal. Bus Barnstable is a member of the Cape Cod Regional Transit Authority (CCRTA) , which provides fixed route service between Hyannis and Woods Hole. The Plymouth & Brockton Railway Company provides service to Boston and other locations on Cape Cod. There is limited bus service between Barnstable and Sagamore Circle, Plymouth, Kingston and Rockland. Other Barnstable Municipal Airport, a Primary Commercial Service (PR) facility, has two asphalt runways 5,249' and 5,430' . Instrument approaches available: Precision and non-precision; Marton Mil Mins Airport, a privately owned public use facility, has 2 turf runways : 1, 675 ' x 45 'and 2, 680 x 10 Instrument approaches available: None. Commuting to Work(1990 US Census) Drove alone 81.8% Carpools 9.1% http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 DHCD - Community Profiles -Barnstable Page 12 of 20 Public transportation 1.7% Other means 1.9% Walked or worked at home 5.6% Average time to work (mins) 19.3 LAND USE CLASSIFICATION *(Office of Environmental Affairs 1985) Acres Residential 13,236 33 .1% Commercial 1,062 2.7% Industrial 285 0.7% Transportation 952 2.4% Agriculture 525 1.3% Urban Open Land 629 1.6% Recreation 1, 132 2.8% Water 1,773 4.4% Other 20,429 51.0% * Cape Cod communities updated 1992 ZONING REGULATIONS • (Supplied by community 1993) Single Two Multi • Family Family Family Minimum lot size (sf) 43,560 71,500 5,000 per unit Minimum lot width or frontage (ft) 20-150 n/a n/a GROWTH MANAGEMENT (Supplied by community 1993) Comprehensive Plans Yes Rent Control No Condominium Controls No Groundwater Protection Yes Subdivision Control Laws Yes Site Plan Approval. Required Yes Other Growth Limits Ili. CCC Review Process and Policy Plan http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 • DHCD -Community Profiles -Barnstable • Page 13 of 20 Department of Housing and Community Development, Argeo Paul Cellucci,Governor,Jane Wallis Gumble,Director - CULTURE AND RECREATION LIBRARIES (Board of Library Commissioners 1993/94) Hyannis Public Library 401 Main St. (508) 775-2280 (call for other library locations) Statewide Total Holdings 260,112 per capita 6.27 4.91 Total Circulation 484,113 per capita 11.68 7.02 MUSEUMS (American Association of Museums) Centerville Historical Society 513 Main Street Centerville (508) 775-0331 Historic Society of Santuit and Cotuit 1148 Main Street Cotuit (508) 428-0461 John F. Kennedy Museum 397 Main Street Hyannis Osterville Historical Society West Bay Road Osterville (508) 428-5861 Donald G. Trayser Memorial Museum 3353 Main Street Barnstable Village (617) 362-2092 RECREATION Recreation Department (Supplied by community 1993) Barnstable Recreation Department Bearse's Way Hyannis, MA 02601 http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 •DHCD -Community Profiles -Barnstable Page 14 of 20 Recreational Facilities (Department of Environment Management) Largest recreational sites, and activities: Sandy Neck Beach (1,350 acres) boating-non motor, camping, cross country skiing, hiking, horseback riding, hunting, motor boating, natural history, nature • observing, picnicking, swimming West Barnstable Conservation Area (1,114 acres) hiking, horseback riding, hunting, nature observing, 1776 South Conservation Area (240 acres) hiking, hunting, nature observing, walking/jogging Barnstable Municipal Golf Course (154 acres) golf 1776 North Conservation Area (85 acres) hiking, nature observing, walking/jogging Kalmus Park Beach (48 acres) boating-non motor, picnicking, salt water swimming, walking/jogging • Craigville Beach (10 acres) boating-non motor, picnicking, salt water swimming, walking/jogging • • Department of Housing and Community Development, - Argeo Paul Cellucci,Governor.Jane Wallis Gumble,Director ISCELLANEOUS HEALTH FACILITIES (Dept.of Public Health 1992) Hospitals Cape Cod Hospital, Inc. Long Term Care Cape Regency Nursing & Rehab. Center Centerville Nursing Home Greenery Rehab. & SNC Of Hyannis Hyannis Convalescent Center Whitehall Manor Nursing Home Whitehall Pavilion Nursing Home http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 • - -DHCD -Community Profiles -Barnstable Page 15 of 20 Hospices Hospice of Cape Cod Rest Homes Fraser Rest Home Of Hyannis Village Haven Rest Home UTILITIES (Office of Business Development) Electric Commonwealth Electric Co. Gas Colonial Gas Co. Sewer Barnstable WPCD Water Sources Ground PUBLIC SAFETY (Office of Public Safety 1993) Statewide Total Crimes Reported 4 2,179 rate per 1,000 persons 53.21 47.95 change from 1992 (%) -9 -5 Violent Crimes 776 rate per 1,000 persons 18.95 7.13 change from 1992 (%) 11 -3 Property Crimes 1,403 rate per 1,000 persons 34.26 40.82 change from 1992 (%) -17 -5 WELFARE ASSISTANCE (Department of Public Welfare 1994) Cases Cash Assistance Refugee Assistance 0 Supplemental Security Income (SSI) - Aged 145 Aid to Families with Dependent Children (AFDC) 610 Supplemental Security Income (SSI) - Disabled 930 Emergency Aid (formerly General Relief) 178 Medicaid Only Aged 118 Families 465 Disabled 254 http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 DHCD -Community Profiles - Barnstable Page 16 of 20 Children 15 1 Food Stamps Only 577 Total 3,292 DPW caseloads are compiled by zip code. The cases shown are for the zip code(s)in which the community is located, and may include cases for other communities with the same code. Department of Housing and Community Development, Argeo Paul Cellucci,Governor,Jane Wallis Gumble,Director ' '` UNICIPAL FINANCE At A Glance Report for BARNSTABLE (02/21/97) Massachusetts Department of Revenue-Division of Local Services County: BARNSTABLE Kind of Community: Growth Community School Structure: K to 12 Regional School Districts: CAPE COD Form of Government: City Manager _ Council Representive Town Meeting 1994 Population 42,579 1994 Labor Force 22,028 1989 Per Capita Income 17,376 Population Per Square Mile 708 1994 Average Unemployment Rate 7.6 • • 1994 EQV Per Capita 115,807 Tax FY97 FY97 FY97 Classification Tax Rate Tax Levy Assessed Value Residential 12.09 46, 191,730 3,820,655,900 Open Space Commercial 12.09 6,898,333 570,581,700 Industrial 12.09 581,644 48,109,500 Personal Property 12.09 1,625,122 134,418,700 Total 55,296, 829 4,573,765,800 • FY97 Revenue Sources % of Total Tax Levy 55,296, 829 59.2 State Aid 6,630,205 7.1 Local Receipts 24, 534,315 26.3 Other Available 6, 882,386 7 .4 Total 93,343,735 FY97 Proposition 2 1/2 Levy Capacity New Growth 811,499 Override http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 DHCD - Community Profiles -Barnstable Page 17 of 20 Debt Exclusion 3,795,166 Levy Limit 55,312,488 Excess Capacity 15,659 Ceiling 114,344,145 Override Capacity 62,826,823 FY97 Cherry Sheet Estimated State Aid Education Aid 4,937,818 General Government 1,690,669 Total Receipts 6,628,487 Total Assessments 1,925,250 Net State Aid 4,703,237 FY95 Schedule A - Actual Revenues and Expenditures General Special Capital • Fund Revenue Projects Revenues 59,397,995 4,515,347 554,989 Expenditures 62,025,357 4,356,856 9,101,956 Police 5, 072,096 Fire 0 Education 32,862,183 3,692,456 5,841,630 Public Works 3,220,499 1,441,103 All Other 20, 870,579 664,400 1, 819,223 Enterprise Trust Total Fund Revenue All Funds Revenues 10,311,873 880,569 75,660,773 Expenditures 7,592,146 442,207 83,518,522 Police 5, 072,096 Fire 0 Education 42,396,269 Public Works 3,695,714 8,357,316 All Other 3,896,432 442,207 27,692, 841 Reserves Revaluation 7/1/96 Free Cash 4, 862, 123 Most Recent - FY95 FY97 Overlay Reserve 784, 866 Next Scheduled - FY98 FY95 Stabilization Fund 686, 095 FY97 Average Tax Bill Number of Single Family Parcels 19,662 Assessed Value of Single Family 3,351,216,800 Average Single Family Tax Bill 2,061 http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 DHCD -Community Profiles - Barnstable Page 18 of 20 s If you have any questions or comments about this report or would like more information about the Municipal Data Bank, please contact: Burt Lewis (617-626-2358) or John Sanquinet (617-626-2355) Commonwealth of Massachusetts, Department of Revenue FY97 Estimated Receipts For BARNSTABLE (As of 07/09/96) A. EDUCATION: Distributions and Reimbursements 1. Chapter 70 2,787,386 2. School Transportation Programs 523,573 3. School Construction 1,556,187 4. Retired Teachers' Pensions 5. Tuition of State Wards 31,033 Offset Items - Reserve For Direct Expenditures 6. Racial Equality 7. School Lunch 39,639 Subtotal, All Education Items 4,937, 818 B. GENERAL GOVERNMENT: Distributions and Reimbursements 1. Lottery, Beano and Charity Games 1, 148,320 2. Additional Assistance 3. Highway Fund 290,107 4. Local Share of Racing Taxes 5. Regional Public Libraries 6. Police Career. Incentive 7. Urban Renewal projects 8. Veteran's Benefits 34, 881 9. Exemptions: Vets, Blind & Surv. Spouse 27,684 10. Exemptions: Elderly 107,477 11. State Owned Land 39,621 Offset Items - Reserve For Direct Expenditure: 12. Public Libraries 42,579 Subtotal, All General Government 1, 690, 669 C. TOTAL ESTIMATED RECEIPTS FISCAL 1997 6,628,487 Commonwealth of Massachusetts, Department of Revenue FY97 Estimated Charges For BARNSTABLE (As of 07/09/96) http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 • DHCD - Community Profiles - Barnstable Page 19 of 20 Prior Year Prior Year Estimates Underestimates Overestimates A. County Assessment, County Tax 868,179 1 B. STATE ASSESSMENTS AND CHARGES: 1. Supervision of Retirement 2. Motor Vehicle Excises 3. Retired Employees Hlth Ins. 8,134 336 4. Retired Teachers Health Ins. 669,907 41,236 5. Mosquito Control Projects 186,189 1,718 6. Air Pollution Districts 13,928 7. Metropolitan Area Planning 8. Old Colony Planning Council 9. RMV Non-Renewal Surcharge 57,140 Sub-Total, State Assessments 878,158 98,712 1,718 C. TRANSPORTATION AUTHORITIES: 1. MBTA 2. Boston Metro Transit 3 . Regional Transit 171,316 6,888 Sub-Total, Transp. Assessments 171,316 6, 888 R b, D. ANNUAL CHARGES AGAINST RECEIPTS: 1. Multi-Year Repayments 2. Special Education 7,597 1,323 3 . Energy Conservation 4. STRAP Repayments Sub-Total, Charges 7,597 1,323 E. TOTAL EST. CHARGES, FY97 1,925,250 106,924 1,718 F. NET CHARGES, FY97 (Col. 1 + Col. 2 less Col. 3) 2,030,456 For further municipal finance information contact: Division of Local Services Department of Revenue 100 Cambridge Street Boston, MA 02202 Phone: (617) 727-7300 ACKNOWLEDGEMENTS Department of Housing and Community Development, Argeo Paul Cellucci,Governor,Jane Wallis Gumble.Director http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 •DHCD - Community Profiles-Barnstable Page 20 of 20 The Department of Housing and Community Development would like to thank the many government agencies noted as having provided information for the community profiles. In addition to these agencies, the Regional Transit Authorities assisted with the transportation component of the profiles. We gratefully acknowledge the assistance of many city and town officials,which enabled us to include information obtainable only at the local level. DHCD would also like to thank the following individuals for providing special help: Leslie A. Kirwan, Deputy Commissioner,Division of Local Services,Department of Revenue; Richard Shibley,Deputy Secretary of State; Bob Beattie of the Department of Public Health; Charles W. Clifford from the Martha's Vineyard Commission; Dennis Coffey of the Executive Office of Transportation and Construction; Donna Fletcher and Christian Jacqz of the Executive Office of Environmental Affairs; James Griffin from the MBTA; Karen Loh from Banker& Tradesman; Todd Maio from the Department of Welfare; Geoffrey Morton from the Election Division of the Secretary of State's Office; Stephen R. Muench of the Massachusetts Aeronautics Commission; Rol Murrow of the Aircraft Owners and Pilots Association; Mary Ann Neary and Emmanuelle Fletcher,reference librarians at the State House Library; Jeff Nellhaus from the Department of Education; and George Sanborn,reference librarian at the State Transportation Library. NOTE: The COMMUNITY PROFILE draws information from a diversity of sources. The main source of information is listed under each section. In some instances comments submitted by the municipality were incorporated to correct and/or enhance the information obtained from the main source. However, no changes were made to those data bases which must be consistent throughout the state. DHCD has made efforts to ensure the accuracy of all data in the COMMUNITY PROFILES, but cannot take responsibility for any consequences arising from the use of the information contained in this document. http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 BRENDA TRI VICTOR CILLIS OKTOBER FARM 2051 MAIN STREET WEST BARNSTABLE,MA 02668 (508) 362-1562 March 1, 1999 Mr.Ralph Crossen Building Commissioner Town of Barnstable Department of Health, Safety&Environmental Services Building Division 367 Main Street Hyannis,Massachusetts 02601 Re: Oktober Farm, 2051 Main Street,West Barnstable MA Dear Commissioner Crossen: Since we have not yet heard further from you in response to my February 101 letter (responding to your letter of February 5th), we thought that it might be helpful to set forth fully in one letter all of the relevant facts, in the hope of persuading you that,indeed, the farm,is not in violation of the zoning by-laws, in light of Section 3 of Chapter 40A, and to ask you to rescind the Cease and Desist Order. As a starting point, We note that the Cease and Desist Order pertains "to only the riding programs for the public area not associated with the purchase of a horse." (Crossen letter dated February 5, 1999,para. 3) Clearly, then,we are in agreement that the use of the property for the raising,keeping and boarding of horses constitutes a permissible use which is not in violation of the zoning by-laws, as an agricultural or farming venture, as defined in Section 3, Chapter 40A of the General Laws. For the sake of clarity, our agreement on this point is based upon the specific wording of Section 3,which states, in pertinent part: No zoning ordinance or by-law shall...prohibit, unreasonably regulate or require a special permit for the use of land for the primary purpose of agriculture...; nor prohibit, unreasonably regulate or require a special permit for the use, expansion or reconstruction of existing structures thereon for the primary purpose of agriculture... except that all such activities may be limited to parcels of more than five acres in an area not zoned for agriculture. G. L. c. 40A, s. 3. Mr. Ralph Crossen Building Commissioner March 1, 1999 Page 2 Additionally, our agreement is based upon other statutes of this Commonwealth which further define"agriculture" as follows: "Farming" or "agriculture" [means] farming in all of its branches and cultivation •.. the raising of livestock including horses, the keeping of horses as a commercial enterprise,the keeping or raising of poultry•.•and other domesticated animals.... G. L. c. 111, s. 1 ("Definitions") and Land shall be deemed to be in agricultural use when primarily and directly used in raising animals, including but not limited to, ...,poultry, horses, ponies, ... , goats,..•., for 'the purpose of selling such animals or a product derived from such animals in the regular course of business; or when primarily and directly used in a related-manner which is incidental thereto and represents a customary and necessary use in raising.such animals and preparing them or the ;products derived therefrom for market... G. L. c.61A, s. 1. and Land not less than five acres in area shall be deemed to be actively devoted to agricultural ... uses when the gross sales of agricultural ... products resulting from such uses •.•total not less than five hundred dollars [$500] per year. G. L. c. 61A, s. 3. Finally, our agreement is based upon the fact that the farm is in excess of five acres (and in fact is seven acres). Pursuant to the Town of Barnstable Zoning Ordinances, in the RF district where the farm is located, we are permitted to keep, stable and maintain at least twenty-five horses. (Town of Barnstable Zoning Ordinances, Sections 3-1.1(2)(b) and 3- 1.4) Having said that, it would appear that our disagreement pertains to the role of the Riding School in relation to the farm as a whole, and whether a horseback riding school constitutes an "agricultural" use accorded special treatment pursuant to Section 3 of Chapter 40A. We hope to clarify in this letter that not only is the Riding School is incidental to the raising, keeping and boarding or horses, but, more importantly, that a horseback riding Mr. Ralph Crossen Building Commissioner March 1, 1999 Page 3 school is indeed an "agricultural use accorded special treatment pursuant to Section 3 of Chapter 40A. The Primary Purpose of the Farm is the Raising,Keeping and Boarding of Horses The primary function of the farm is the raising,keeping and boarding of horses. At present, we raise and keep four horses (two of which are miniature horses) of our own, and board five horses and three ponies, for a total of ten horses and ponies. In connection with the boarding of horses, we are responsible for the day-to-day care and maintenance of each horse, including daily turn-out and exercise, feeding, supervision of medical and health care, and ensuring that each horse is properly bedded down each night. Of the horses boarded, several are younger horses who are being raised here at the farm. We also provide riding instruction to many of the owners boarding their horses here at the farm,because they seek to both develop and advance their riding skills, which many riders will tell you is a life-long process. Some individuals have pursued riding instruction here and elsewhere in order to develop elementary riding skills sufficient to enable them to purchase a horse of their own, which is then boarded here at the farm. For those newer owners who are beginner riders, • the Riding School provides them with an opportunity to further advance their riding skills, as well as an opportunity to train the horses ridden to become accustomed to inexperienced riders. As you may know, horses live anywhere from twenty to thirty years, and do not fully mature until somewhere between their tenth and twelfth year, depending upon the individual horse. Many of the horses boarded here are under that age, and are still being "raised" - indeed, since horses are domesticated animals dependent upon humans for their care and well-being, the"raising"process continues throughout their lives. Having just opened the farm last year, as yet we have not had the pleasure of having any of the horses in our care give birth, although we do hope that this will happen someday. In addition to raising, keeping and boarding horses at the farm, I have counseled and assisted individuals with both the purchase and sale of horses. Mr.Ralph Crossen Building Commissioner March 1, 1999 Page 4 Riding Instruction is Offered Incidentally and as an Accessory to Raising, Keeping and Boarding Horses. In addition to offering riding instruction to my boarders, I also offer riding instruction to non-boarders, many of whom hope to obtain sufficient skill to enable them to purchase a horse of their own one day. The Riding School truly is incidental to the farm's primary function of raising, keeping and boarding horses, and the farm's revenues reflect that. Moreover, unlike some area riding academies, I do not presently advertise in local newspapers,nor in the telephone book. Most advertising comes from word-of-mouth. A review of the Massachusetts case of Henry v. Board of Appeals of Dunstable, which defines"incidental" and"accessory"uses with respect to agricultural uses is helpful. 418 Mass. 841, 641 N.E.2d 1334(1994). An accessory or"incidental"use is permitted as"necessary, expected or convenient in conjunction with the principal use of the-land." 6 P.J. Rohan, Zoning and Land Use Controls, § 40A.01, at 40 A-3 (1994). The term "incidental" in zoning by-laws or ordinances incorporates two concepts: • "It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance... But `incidental', when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. Henry v. Board of Appeals of Dunstable,418 Mass. At 845, 641 N.E.2d at 1336. Certainly the Riding School is an activity which bears a reasonable, and indeed logical relationship to the raising, keeping and boarding of horses. The Riding School children's program has the additional benefit of assuring parents that their child is involved in a wholesome, outdoor educational opportunity, in a supervised environment. Riding also allows children to experience what was our primary mode of transportation for many centuries, and to develop an appreciation of our history. Moreover, many parents prefer to allow their child to discover through riding lessons whether the child really is interested in riding, as opposed to a passing fad. This is especially important with respect to the purchase of a horse, a not-inexpensive proposition in terms of both time and money. As in the Steege case, I raise, keep and board horses of varying ages, both young and older, some of which are sold. Steege v. Board of Appeals of Stow, 26 Mass. App. Ct. 970, 527 N.E.2d 1176 (1988). As part of the training of some of these horses, they are "ridden by students in order that they may become accustomed to handling by Mr. Ralph Crossen Building Commissioner March 1, 1999 Page 5 inexperienced riders." Id. The Riding School is an incidental and accessory use to the raising, keeping and boarding of horses and ponies. Henry v. Board of Appeals of Dunstable 418 Mass. At 845, 641 N.E.2d at 1336; Steege v. Board of Appeals of Stow, 26 Mass.App. Ct. at 971-2, 527 N.E.2d at 1178. Riding School is an Educational and Agricultural Use However, notwithstanding the similarity of facts in the Steege case and my farm operation, the General Laws of this Commonwealth state that a riding school is accorded special treatment both as an educational entity, and as an agricultural use. Please note that the Department of Revenue for the Commonwealth has recognized our activities (including the Riding School) as agricultural under Chapter 61A, which defines what activities constitute an agricultural use. However,not only is Section 1 of Chapter 61A mentioned in the Steege case,but so is the statute defining "agriculture Chapter 128. Indeed, in considering whether,a riding school is an agricultural use,where better to look than the statute which specifically defines and regulates agriculture. As you can see from those portions of Chapter 128 set forth below, a riding school is specifically defined as an agricultural use under Chapter 128, and is subject to the rules and regulations promulgated by the Massachusetts Commissioner of Food and Agriculture. The applicable sections of Chapter 128 are as follows: Section Title 1 Definitions 1A Farming, agriculture, farmer; definitions 2 Powers and duties of department of agriculture 2A Horse rising instructors; licenses; fees;validity of license; duplicate licenses; rules and regulations 2B Riding Schools or stables; license; fee; rules and regulations; penalties 2D Liability of equine professional and equine activity sponsors Mr. Ralph Crossen Building Commissioner March 1, 1999 Page 6 While I am enclosing copies of these applicable statutes,I set forth portions of them below: Section 1: Defmitions. The following words as used in this chapter shall have the following meanings: "Commissioner",the commissioner of food and agriculture. "Department",the department of food and agriculture. "Riding school operator", any person owning or having custody of one or more horses which are let for hire to be ridden or driven,with or without the furnishing of riding or driving instructions. Section 1A: Farming, agriculture,farmer; defmitions. • "Farming" or "agriculture" shall include farming,in all of its branches •,•.the raising of livestock including horses, the keeping of horses, as a commercial enterprise— . Section 2A: Horse riding instructors; licenses; fees; validity of license; duplicate licenses; rules and regulations. No person shall hold himself out to be a horse riding instructor for hire without being licensed or such purpose by the commissioner[of food and agriculture]. The commissioner shall make rules and regulations governing the issuance and revocation of said license, and shall establish the minimum qualifications for the issuance thereof. If the qualifications of an applicant meet or exceed the minimum qualifications established by the commissioner he shall issue such license. Section 2B: Riding schools and stables; license; fee; rules and regulations; penalties. Every person engaged in the business of operating a riding school or stable where horses are kept for hire, shall obtain a license therefor from the commissioner [of food and agriculture], the fee for which shall be fifty dollars, and such license shall expire on March thirty-first following the date of issuance, .. . The commissioner, subject to the approval of the governor may make rules and regulations governing the issuance and revocation of such licenses and the Mr. Ralph Crossen Building Commissioner March 1, 1999 Page 7 conducting of the businesses so licensed and relative to the maintenance of the premises, buildings and conveyances, the health of the horses or other equine animals, and the method and time of inspection and checking of said animals••... Section 2D: Liability of equine professionals and equine activity sponsors. (a) For the purposes of this section, the following words shall have the following meanings: "Engage in an equine activity", riding, training, assisting in veterinary treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted, visiting or touring or utilizing an equine facility as part of an organized event or activity, or assisting a participant or show management. The term "engage in equine activity" shall not include being a spectator at an equine activity, except in cases where the spectator places himself in an unauthorized area or in immediate proximity to the equine activity. "Equine", a horse,pony,mule, or donkey. "Equine activity", (.1) equine shows, fairs, competitions, performances, or parades that involve any or all breeds of equines and any equine disciplines, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, rodeos, riding, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding, gymkhana games, and hunting; (2) equine training or teaching activities or both; (3) boarding equines; including normal daily care thereof; (4) riding, inspecting, or evaluating by a purchaser or agent an equine belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect or evaluate the equine; (5) rides, trips, hunts or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; (6)placing or replacing horseshoes or hoof trimming on an equine; and(7)providing or assisting veterinary treatment. "Equine activity sponsor", an individual, group, club, partnership, or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for, an equine activity, including but not limited to: pony clubs, 4-H clubs, hunt clubs, riding clubs, school and college- sponsored classes programs and activities, therapeutic riding programs, stable and Mr. Ralph Crossen Building Commissioner March 1, 1999 Page 8 farm owners and operators, instructors, and promoters of equine facilities, including but not limited to farms, stables, clubhouses, pony ride strings? fairs, and arenas at which the activity is held. "Equine professional", a person engaged for compensation: (1) in instructing a participant or renting to a participant an equine for the purposes of riding, driving or being a passenger upon the equine; (2) in renting equipment or tack to a participant; (3) to provide daily care of horses boarded at an equine facility; or(4)to train an equine. "inherent risks of equine activities", dangers or conditions which are an integral part of equine activities, including but not limited to: (1)The propensity of equines to behave in ways that may result in injury, harm, or death to persons on or around them; (2) the unpredictability of an equine's reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals; (3) certain hazards such as surface and .subsurface; conditions; (4) collisions with other equines or objects; (5) the potential-of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his ability. "Participant", any person, whether amateur or professional, who engages in an equine activity,whether or not a fee is paid to participate in such equine activity. (b) Except as provided in subsection (c), an equine activity sponsor, an equine professional, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from inherent risks of equine activities and, except as provided in subsection (c), no participant or participant's representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities; (c) This section shall not apply to race meetings as defined in section one of chapter one hundred and twenty-eight A. Nothing in subsection(b) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity, sponsor, • Mr. Ralph Crossen Building Commissioner March 1, 1999 Page 9 equine professional, or person: (1)(i)provided the equipment or tack, and knew or should have known that the equipment or tack was faulty; and such equipment or tack was faulty to the extent that it did cause the injury; or(ii) provided an equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, and determine the ability of the participant to safely manage the particular equine based on the participant's representations of his ability; (2) owns, leases, rents, has authorized use of, or is otherwise in lawful possession and control of the land, or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known to the equine activity sponsor, equine professional, or person and for which warning signs, pursuant to subsection(d),have not been conspicuously posted; (3) commits an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury; or (4) intentionally injures the participant. (d) ( i ) Every equine professional shall post and maintain signs which contain the warning notice specified in paragraph(2). Such signs shall be placed in a clearly visible location in the proximity of the equine activity. The warning notice specified in paragraph(2) shall appear on the sign in black letters,with each letter to be a minimum of one inch in height. Every written contract entered into by an equine professional for the providing of professional services, instruction, or the rental of equipment or tack or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the equine professional's business, shall contain in clearly readable print the warning notice specified in paragraph(2). (2) The signs and contracts described in paragraph (1) shall contain the following notice: WARNING Under Massachusetts law, an equine professional is not liable for injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities, pursuant to Section 2D of Chapter 128 of the General Laws. F Mr. Ralph Crossen Building Commissioner March 1, 1999 Page 10 Conclusion In closing, we would like to take this opportunity to apologize to you for being put into the middle of what is essentially an ugly dispute between us and our neighbors, who now seek improperly to manipulate you and your office for their own purposes and ends, under false pretense of concerns regarding zoning, the historic nature of the area, the welfare on animals and children. . As you know, our neighbors have submitted a defamatory, libelous and indeed scandalous petition falsely accusing us of various things. This is particularly hurtful to us because Victor, my husband, is a pediatrician, whose professional reputation has been libeled by these false and mean-spirited accusations. As you know, none of these false accusations are relevant to your consideration of zoning issues. To the extent that these false accusations come under the jurisdiction of a town department, they fall within the jurisdiction of the Board of Health. Please note that our neighbors have caused the health officer to visit the farm on numerous occasions and • . not once have we been cited for any.violation. Indeed, we.welcome,all.,town officials to visit the farm and to review our operations. ;. It is our belief that our neighbors, the Fenneys, the Masons and the Troutmans, are. the primary instigators of the defamatory petition, and that some of the persons signing this petition, other than them, in fact were not aware of the accusations set forth therein, and have disclaimed that they intended to make the accusations set forth therein. It seems that because of other disputes,these neighbors have decided to retaliate against us in a malicious attempt to shut down the Farm. Certainly we find it ironic that never once have either the Fenneys, Troutmans or Masons ever once voice any of their concerns or allegations to us directly or prior to this petition. Particularly with respect to the Masons and Troutmans, it seems hypocritical on their part to try to have the Farm close down, since our farm predates their purchase of the abutting lots, and they each were most certainly aware that the farm was here. To now claim that it is a "nuisance" is ironic, since they could have chosen to purchase elsewhere had they truly desired not to reside next to a farm. It is similarly ironic that they argue that the since neighborhood is an historic area, that the farm should be closed. Evidently, the fact that the farm and riding school engage and preserve a lifestyle quite in keeping with the lifestyle, culture and economy of Cape Cod in by-gone days is being overlooked. Indeed, the Old King's Highway Regional Historic Act seeks to preserve not only Mr. Ralph Crossen Building Commissioner March 1, 1999 Page 11 the historic appearance of the area, but also the historic culture and activity of the area, as set forth in Section 1, entitled"Purpose": The purpose of the Act is to promote the general welfare of the inhabitants of the applicable regional member towns so included, through the promotion of the educational, cultural, economic, aesthetic and literary significance through the preservation and protection of buildings, settings and places within the boundaries of the regional district and through the development and maintenance of appropriate settings and the exterior appearance of such buildings and places, so as to preserve and maintain such regional district as a contemporary landmark compatible with historic, cultural, literary and aesthetic tradition of Barnstable County, as it existed in the early days of Cape Cod, and through promotion of its heritage. Old King's Highway Regional Historic District Act, Section 1. Additionally,the Act defines the term"Heritage"as follows: "Heritage"—value in the cultural life of the past, because of their importance to the community life of Cape Cod, which have come down through the generations to make up our way of life. This has been achieved by means of old buildings, industry, furniture, utensils, old happenings and expressions. They have made the unique salty flavor of Cape Cod that will never be forgotten but will be preserved for future generations, as a means of insuring the integration of those qualities into a contemporary way of living. Old King's Highway Regional Historic District Act,Section 3. What could be more in keeping with the heritage in accordance with the purposes of the Old King's Highway Regional Historic District Act than a working farm, educating today's children, through hands-on experience, about the care and raising of what was once the primary mode of transportation of residents of the Town of Barnstable, and the primary livelihood of its residents? However, as the town official charged with enforcement of our zoning ordinances, we understand that this fs beyond your purview in this instance, and recount this only so that you may have a better understanding of the motivations of certain persons. we appreciate that your concern is solely whether the Riding School constitutes an "agricultural" use, or an incidental and accessory use to a proper agricultural use, under Section 3 of Chapter 40A. As I have se forth above, it is. Accordingly, we respectfully request that you rescind the Cease and Desist order. Mr. Ralph Crossen Building Commissioner March 1, 1999 Page 12 We thank you for your consideration, and look forward to speaking with you soon. Very truly yours, Brenda Tri Victor Cillis,M.D. Oktober Farm Enclosures c: Julie C. Molloy,Esq. MEMORANDUM TO: Zoning Board of Appeals Town of Barnstable FROM: Julie C. Molloy, Esq. Attorney for Applicants, Brenda Tri & Victor Cillis, M.D. DATE: June 16, 1999 RE: Appeal of Building Commissioner's Cease & Desist Order Dated February 5, 1999, re: 2051 Main Street, West Barnstable In response to the Staff Report to the Zoning Board of Appeals, dated June 8, 1999 (which was received on June 15, 1999), the following supplemental memorandum is hereby submitted to clarify certain points: I. Applicants' Position Clarified: The Applicants' position is both that (a) the offering of riding lessons is an exempt agricultural use, and (b) that the same is a use which is incidental, accessory, necessary and customary to the raising, keeping and boarding of horses, and thus is an exempt agricultural activity. II. Size of Property: The Cillis property, Oktober Farm encompasses in excess of seven acres, and not simply the 5.18 acres noted in the Staff Report, as the Cillis also own the parcel denoted as "75-2"on attached Map 216, which is an additional two plus acres. III. Agriculture includes Horse Farms, and Keeping Horses as a Commercial Enterprise: Fundamentally it seems that there is some confusion regarding the nature of "agriculture" and "farming". The Barnstable Zoning By-Laws permit agriculture as an unrestricted use in all zcning districts, without any requirement as to size. The Building 1 Commissioner has agreed that the raising, keeping, and/or boarding of horses is a permissible and unrestricted agriculture use pursuant to the Barnstable Zoning By-Laws. He has opined however that offering riding lessons is a commercial activity separate and distinct from the keeping, raising and/or boarding of horses, and thus is prohibited in a residential district. There are two flaws with this argument: (1) Since the Barnstable Zoning By-Laws do not define "agriculture", we must look to state law to determine the definition of agriculture. Building Inspector of Mansfield v. Curvin, 22 Mass. App. Ct. 401, 494 N.E.2d 42 (1986)(where statute or by- lay does not define its words, look to other legal contexts for their use). Under State law, "agriculture" and"farming" are specifically defined to include not only the raising, keeping and boarding of horses, but also the"keeping of horses as a commercial enterprise." G.L. c. 128, §1A. (This was included in the initial package of materials supplied to this Board by the Applicants, but may have been overlooked during the staff review). (2) "Agriculture"does not mean "non-profit"or non-commercial, in the sense that most farms engage in farming or agriculture with the intent to make money doing so. The family farm is probably one of the oldest businesses and family occupations in the country. Most farmers do so not only because they enjoy it,but also as a means to make a living to support themselves and their families. According to facts presently published on-line by the Department of Food and Agriculture for the Commonwealth of Massachusetts (see attached Exhibit 1): Agriculture is an important part of the character and economy of Massachusetts. Farm production is indeed fresh and growing in the Bay State, and generated upwards of$497 million in cash receipts in 1996. There are some 6,100 farms in the state, with a total of 570,000 acres in production. 2 The Facts About Massachusetts Agriculture, Massachusetts Department of Food and Agriculture In a day and age where many family farms have gone the way of the local pharmacy, driven out by giant retailers like Wal-Mart, so too have many small farmers suffered and gone out of business. Lack of profits in the farming industry have resulted in the sale of farm land for development, leading to a"suburbanization"of communities nationwide, including here on Cape Cod. Ironically, in an effort to stem this "suburbanization" and to preserve open space, the first the Cape Cod Commission was created to preserve the unique cultural and environmental aspects of Cape Cod through a regional planning agency, and most recently enacted the Land Bank as a mechanism to preserve open space no longer preserved through agricultural uses, thus protecting the Cape from overdevelopment. Similarly, the State and federal governments have enacted programs to keep family farms -- an integral part of our economy-- alive. The May 1999 issue of the Massachusetts Department of Food and Agriculture's Farm &Market Report highlights on its front page a campaign spearheaded by the U.S. Department of Agriculture to help small farms "cut costs and increase profits." In Massachusetts, in an effort to preserve and protect farming, the State Legislature adopted legislation granting agricultural uses (provided the property where such activity occurs is in excess of five acres) special protected status and exemption from zoning regulation similar to that granted to educational uses. G.L. c. 40A, §3. According to the 1997 Census of Agriculture done by the U.S. Department of Agriculture, there are 1,196 Horse Farms in Massachusetts, maintaining some 9,410 horses and ponies. (See Exhibit 2). 3 IV. Relationship Between Horse Farm and Riding Lessons In the Staff Report, the final paragraph states that the"Building Commissioner has made a determination that the applicants' operation of a riding academy is different than the Steege case." The report goes on to state: "In Steege, a riding academy was found to be related to the raising and sale of horses because people needed to learn to ride before they bought a horse. The Building Commissioner has made a determination that there is no such relationship in the applicants' operation of a riding academy." (See Staff Report) The Building Commissioner however has never indicated in any manner how, in his opinion, Oktober Farm's offering of riding lessons is different from the facts in the Steege case. The facts set forth in the Steege case pertaining to the use of the premises, as set forth in the decision are as follows: (1) the Steeges owned property in excess of five acres in the Town of Stow; (2) since 1984, the Steeges operated the premises for the raising, training, and boarding of horses; (3) the Steeges also used the premises for giving riding lessons; (4) finally, the Steeges allowed persons boarding their horses at the premises to use the premises for the riding of their own horses. Steege v. Board of Appeals of Stow, 26 Mass. App. Ct. 970, 527 N.E.2d 1176 (1988). After a trial in the Land Court, the trial judge ruled that: The uses made by the [Steeges] of their land...are so interrelated that they comprise agricultural use as defined in G.L. c. 61A, §§1 and 3, and G.L. c. 128, §1, and are therefore exempt from the requirements of the Stow zoning by-law. Steege v. Board of Appeals of Stow, 26 Mass. App. Ct. 970-71, 527 N.E.2d at 177. 4 The Appeals Court upheld the trial court's findings that the uses of the Steeges, including the offering of riding lessons, all fell within the definition of agriculture, and thus were exempt from the Stow zoning by-law. Steege v. Board of Appeals of Stow, 26 Mass. App. Ct. 970, 527 N.E.2d 1176. Nowhere in the Steege case is there any indication, hint or inference requiring that in order for riding lessons to constitute an exempt agricultural activity the persons taking such lessons must have some intent to someday purchase a horse, as the Building Commissioner's letters indicate is required here. In point of fact, however, riding students of Oktober Farm have purchased ten horses in the past year, and Oktober Farm itself has purchased three horses. Four of the horses purchased by Oktober Farm riding students are now boarded at the Farm. Setting that aside for a moment, let us consider the nature of a horseback riding in general: (1) While at one time horses were the primary mode of transportation, and nearly Every family had one (or more), today the usual and customary uses of horses is riding for pleasure; (2) In order to ride a horse, one must learn how to do so. While a person might be able to learn how to ride a horse on his or her own or from reading a book, it is advisable to take lessons. Indeed, the state deems it sufficiently important to ensure that riding instructors be knowledgeable and experienced that there is a state statute regulating horse riding instructors and the operation of riding schools; (3) Purchasing a horse is expensive: while it may cost between $50 to $1,000 to purchase a bicycle, it generally costs $1,500 to $2,000,000 to purchase a horse. In addition to the initial purchase price, there is the cost of board if a horse is boarded, costing anywhere from $350 to $700 per month, the cost of feeding a horse the horse, veterinary and dentist bills and bills for the shoes. None of this is inexpensive, and not likely an expense one would decide to bear unless one were certain one were really interested in riding the horse— unlike a dog,horses are not generally kept as pets simply for companionship. It is typical, usual and customary, therefore, for people to take lessons to determine if they are really interested in owning a horse and also to learn how to ride one. 5 • (4) In order to take a riding lesson, a person must find a place which keeps horses, and,by state statute, licensed to give horseback riding lessons. Typically, this will be a horse farm Since last Spring, 1998, when Brenda and Victor Cillis began offering riding lessons in connection with their horse farm, ten students have purchased horses. Four of those horses are now boarded at the farm. The owners of each of those four horses continue to take lessons. Brenda Cillis is a licensed horse Riding Instructor pursuant G.L. c. 128, §2A. Oktober Farm is a duly licensed stable pursuant to G.L. c. 128, §2A. Oktober Farm has a permit to operate a stable issued by the Town of Barnstable Board of Health. The primary purpose of Oktober Farm is the raising, keeping and boarding of horses. The customary use of horses is riding, which is done by both the Cillis family and those who board their horses there. Offering riding lessons is a typical,usual and customary use of the horses kept and raised at Oktober Farm. The fact that money is charged in exchange for the lessons given does not make horseback riding any less agricultural,just as charging money to board horses makes that any less agricultural, or charging money for farm raised corn makes growing corn any less agricultural. Thus, offering horseback riding lessons (which can only be offered by virtue of the fact that horses are kept at the farm, since there would not and could not be any horseback riding lessons if there were not any horses available to ride) is an exempt agricultural use, because it falls within the definition of agriculture as stated in Section IA of Chapter 128 (the keeping of horses as a commercial enterprise), and,just as in the 6 Steege case, Oktober Farm's"purchase and raising of horses, their stabling, training through the operation of the riding school, and their participation in horse shows are all part of the one whole and constitute agriculture as that phrase is used in [Chapter] 40A, [Section] 3. • I 1 •11 e cts about Massachusetts agriculture agriculture is an important part of the Cash Receipts character and economy of Massachusetts. Farm production is indeed fresh and • $497 million in cash receipts for all growing in the Bay State, and generated commodities upwards of$497 million in cash receipts in 1996. There are some 6,100 farms in the Massachusetts Cash Receipts,1996 state, with a total of 570,000 acres in Percent by Commodity production. Cranberries 23.7% • Massachusetts farmers provide flavorful and . % er diverse products for all tastes - from the G,nh,o&Nu..29.5% 11111e11111111N11111411!!' otntei.e%Crops 62% traditional New England favorites of maple4,11 syrup, apple cider, and cranberries to Wstdc6 Poen.6.1% unusual varieties of sprouts, hydroponically grown lettuce, gourmet cheeses, and wines. Diversity and productivity are what keep The Largest Sectors of Mass. our Massachusetts agriculture fresh and Agriculture (by cash receipts) growing. Every time you purchase foods Greenhouse and nursery 30 percent $132 million grown, produced or processed in Cranberries 24 percent $81 million Massachusetts, you help stimulate the local economy... and you'll enjoy the special Fruits&vegetables 19 percent $81 million "taste of Massachusetts"I Dairy products 14 percent $63 million Farmland National Rank • 6,100 farms • Cranberries 2 • 570,000 acres in farmland • Maple syrup 9 • Average farm size: 93 acres • Sweet corn 13 • Farmland value: $5,597 per acre, 4th • Apples 15 highest in the U.S. • Tomatoes 18 I Direct Marketing Outlets Crops and Commodities • 95 farmers' markets statewide Cranberries • More than 400 roadside farm stands • Pick-your-own operations are Massachusetts is the number two cranberry another direct marketing outlet used producer in the nation, producing 37 by Bay State farmers. percent of the U.S. crop. Massachusetts harvests more than 1.7 million barrels on — — = some 14,400 acres of cranberries yearly. M Massachusetts grown...and fresher) - U.S.Cranberry Production, 1996 Farm Labor Percent by State Massachsetts 37% • 1,847 farms with hired farm labor Washington4°6 Ne 10% • 12,469 workers on farms Oregongon 7%7% • $77,337,000 paid to workers Wisconsin 43°,6-� • 2,926 farm operators whose principal occupation is farming • 2,332 operators with a principal occupation other than farming Dairy • Average age of farm operators: 53.8 years The commonwealth's dairy industry Rural and Farm Population produced 440 million pounds of milk in p 1996. Ice cream production totaled 54 • 15.7 percent of the million gallons in 1996. commonwealth's total population - 947,000 people - live in rural areas. Fruits & Vegetables • The farm population is 9,342. Nearly half of the 16,577 acres of Food Manufacturingvegetables cultivated in the state is devoted to sweet corn. Massachusetts farmers • Massachusetts has more than 2,600 produced 490 million pounds of sweet corn food manufacturers in 1996. The Massachusetts tomato crop • Nearly 52,600 people are employed weighed in at 68 million pounds in 1996 in food manufacturing with a value of$5.8 million. Other local • $6 billion in revenue is generated produce includes fresh beans, squash, annually. peppers, strawberries, blueberries and more than 40 other fruits and vegetables. ®®,®��'' Hydroponically grown tomatoes, lettuce and sprouts are among the diverse products available in the Bay State. MAS T :h . DE %IH PRIDE Apples Winemaking Bay State apple production ranks 15th in the There are approximately 270 acres of nation. More than 1.3 million bushels of vineyards in the commonwealth. The state's Massachusetts apples were produced in 1996 . wineries produce a variety of grape, berry, and fruit wines which are available across Eggs & Poultry the state. Vineyards range in size from less than one acre to more than 60 acres. Brown eggs are popular in New England. In Massachusetts, there are about 512,000 Maple Sugar laying hens, producing some 11 million dozen brown and white eggs annually. The Typically New England, maple tree tapping commonwealth's turkey farms produced thrives in the Bay State. Massachusetts maple 80,000 turkeys at a wholesale value of more syrup production totaled 49,000 gallons in than $1.9 million in 1996. 1996,with cash receipts of$1.9 million that year.We are one of ten states in the U.S. Green Industry commercially producing maple syrup. The combined greenhouse and nursery Tobacco industry is the largest sector of the agricultural industry in Massachusetts, with 8.2 million Though much of the farmland once used for square feet under protection,and 3,200 acres tobacco is now used for vegetable in the open. Cash receipts totalled $147 production, the state still grows more than million in 1996. $8.2 million worth of tobacco annually. Livestock Horses Though Massachusetts is not a commercial The state administers breeding programs for meat producer, it generates some $13.5 both standardbreds and thoroughbreds. All million annually from the sale of culled cattle totalled, we have some 60,000 horses and and calves from dairy herds. About 7.2 3,100 ponies in the Bay State. Our equine million pounds of pork and 1 million pounds industry is valued at about$180 million. of lamb and mutton are produced each year. Hay Aquaculture The state's annual hay crop of 190,000 tons Aquaculture operations generate more than on some 95,000 acres is valued at more $8.5 million in cash receipts annually. than $21 million. Honey Forest Products The state's 15,000 bee colonies, vital to the Lumber, wood pulp, Christmas trees and pollination process of major Massachusetts other forest products are part of the Bay products, also produce $252,000 worth of State's agricultural harvest. Christmas trees honey each year. bring in $15 million in cash receipts annually. Composting Many Massachusetts farmers also use IPM p g techniques on other crops not currently On-farm composting is solving town covered by the Partners with Nature waste-disposal problems and providing a program. new industry for farmers. Agricultural Fairs Farmland Preservation • 18 major agricultural fairs in The Agricultural Preservation Restriction Massachusetts Program (APR), has protected some 409 • 12 community fairs parcels of prime agricultural land from • 13 youth fairs non-agricultural development. The state has • 6 fairs specializing in livestock invested $88 million in 123 towns to acquire • 15 fairs sponsored by the Grange agricultural restrictions on these parcels. Agri-Tourism Integrated Pest Agricultural tourism is fast becoming a Management popular pastime that offers enjoyment to tourists, and also gives farmers an Integrated Pest Management (IPM) uses a opportunity to diversify their operation and combination of pest control practices in attain economic growth. Over 150 farms concert with naturally-occuring controls. By currently offer visitors activities such as combining a number of practices, pest hiking, cross-country skiing, cut-your-own damage can be prevented without harming Christmas trees, harvest festivals, the environment. picnicking, bed and breakfast The Partners with Nature IPM certification accomodations, farm tours, petting zoos, and more. program certified crops grown by 40 farmers in 1997. Sweet corn was the largest SOURCES:New England Agricultural Statistics,1996;U.S. crop certified under the Partners with Census of Agriculture,1992;Massachusetts Department of Nature program covering nearly 900 acres. Food and Agriculture and Massachusetts Office of Business Another 52 acres of strawberries, 24 acres Development. of tomatoes, 30 acres of potatoes, 5 acres of cole crops, 34 acres of peppers, 40 acres of pumpkins and 239 acres of winter squash were also certified. Massachusetts IPM-Certified Farms 1997 Partners with Nature Program Massachusetts Department of Food and Agriculture 24— H 20— 100 Cambridge Street ,e— Boston, MA 02202 12 � — 617-727-3000 0 » -- aginfo@state.ma.us Sr.awe 4trawbcrrle Sawa Patztee Cole Owl Pepper, henpldni Crop http://www.massgrown.org Mission Statement and Organization Page 1 of 3 , r home g �� w '. �ti r 1�P�. a ��.,�!j�i'+5. �'�rLA�ai5 �6�� ,'o-*'. r•s.. 4i��: � '�'' s 8<� 1��� '" index" � p�rograms ,�y (�$f �(Q{�f S 'Yf��}` �' -.. / 'y�l r/n�1�/.ry �{, aF .' V K d h SY n��{1 over die `..�.,k�ot".},'' � i , _ �,�� , #- ¢¢ 1` «4 ,, ,l Y:Y V r .!�K ±mac roll i Massachusetts Department of Food and Agriculture 100 Cambridge Street, Boston, MA 02202. Tel 617-727-3000. Fax. 617-727-723 . a `+' ,,,,.t • c,,,r & 7„y.:w as .,ate;` 4, *4.,:,..,,r) ..,:-4,( - -_, N -' rt'', . '-._.' ,... :;4 ,' 0 en ts, aw. �i w. ::::,-.:1.,,_-'' 1 �� ° f, L s ��, ; pp 'fir' " y F it y � ,�Tff�s. a r 0. y ; Mission Statement and Organization The mission of the Massachusetts Department of Food and Agriculture (DFA) is to support, promote and enhance the long term viability of Massachusetts Agriculture with the aim of helping this state's agricultural businesses become as economically and environmentally sound as possible. By so doing it is hoped that our farmers will continue to support and maintain thousands of acres of valuable open space for the benefit of the state's economy and environment. The Massachusetts Department of Food and Agriculture is one of the oldest state agencies in the nation, tracing its origins to the State Board of Agriculture which was established in 1852. The DFA is organized around four divisions: Division of Agricultural Director: MaryJordan Development: J. Through the Bureau of Land Use this Division develops programs to preserve and improve land for agricultural uses. Through its marketing arm, the Bureau of Markets the division promotes Massachusetts agricultural products and fosters economic development for the farm community. Fairs and Equine Activities are also a responsibility of the Division. The Division is also responsible for the promotion of Aquaculture in the State. The Division of Agricultural Development has its own web site called MassGrown (www.massgrown.org) Division of Dairy Services: Director:Jim Hines Composed of the Bureau of Milk Marketing and the Bureau of Dairying. The Bureau of Milk Marketing administers licenses to milk dealers including stores, plants and distributors. It is also responsible for the http://www.massdfa.org/overview.htm 6/15/99 Mission Statement and Organization Page 2 of 3 administration of the State Marketing Order in Federal unregulated areas as well as laws regulations and programs pertaining to dairy. Division of Regulatory Services Director: David Sheldon This division has the responsibility of regulating all agricultural activities within the State. It is composed of the Pesticide Bureau, the Bureau of Animal Health and the Bureau of Farm Products and Plant Industries. Division of Administrative Operations Manager:Janet LaFond Services: This division supports the fiscal and administrative needs of the Department. Commissioners Office Commissioner:Jonathan Healy Operations Manager:Janet LaFond Program Coordinator: Maureen Martel Finance: Accountant: Barbara Scoff; The Budget Director administers all Program Coordinator:Joyce Toland. financial activities such as the Department's budget, accounting and procurements. Human Resources: Human Resources Manager: Mary Beth Burnand Employment Opportunities; Counsel: General Counsel: Lawrence McCormick DFA Regulations Assistant General Counsel :Dorothy.Bisbee Education and Outreach; Bureau Chief:Janet Christensen Grant Programs; Coordinator: Craig Richov Directory of Employees; (Home] I (Programs&Services] I I [News&Events] I (Dairy Services] I [Agricultural Development] I (MassGrown] • http://www.massdfa.org/overview.htm 6/15/99 Mission Statement and Organization Page 3 of 3 Photograph Courtesy of Ellen Hart http://www.massdfa.org/overview.htm 6/15/99 2 2 1 1997 Census of Agriculture ' :619a1,‘_ State Profile United States Department of Agriculture Ad '' New England Agricultural Statistics Service MASSACHUSETTS Land in farms Decreased 2 percent from 526,440 acres in 1992 to 518,299 acres in 1997. lAverage size of farms I Decreased 7 percent from 100 acres in 1992 to 93 acres in 1997. (Full time farms I Increased slightly from 2,926 farms in 1992 to 2,927 farms in 1997. Market value of agricultural products sold Increased 30 percent to $454,404,000 in 1997. Crop sales accounted for 79 percent of the market value. Livestock sales accounted for 21 percent of the market value.1 'Market value of agricultural products sold, average per farm I Increased 22 percent from $66,687 in 1992 to$81,522 in 1997. Census Count of Farms Land 7 700 6 * 600 El h u)ig 500 N C E0 5 cby 400 Li Q 4 o F 300 200 I I 1 1 2 ' t ' ' 100 ' ' ' 1982 1987 1992 1997 1982 1987 1992 1997 AO Farms —I— Full time Farms Land in Farms —I— Cropland Harvested Table 39. Ewes 1 Year Old or Older—Inventory, Shorn, and Sales by Size of Ewe Flock: 1997 [For meaning of abbreviations and symbols,see introductory text] Sheep and lambs inventory Sales Sheep and lambs shorn Ewes 1 year old or older Total Ewes 1 year old or older Sheep and lambs Sheep,lambs,and wool inventory Pounds of Value Farms Number Farms Number Farms Number wool Farms Number Farms ($1,000) Total 364 7 750 364 5 374 318 6 769 50 468 300 6 105 340 438 Farms with inventory of— Ito 24 304 3 786 304 2 418 258 3 084 23 150 240 3 267 280 218 25 to 99 58 (D 58 (0) 58 D)) (D 58 (D) 58 (D 100to 199 1 (D; 1 (D) 1 (D) (D; 1 (D; 1 (D 200 to 499 1 (0) 1 (D) 1 (D) (D) 1 (D 1 (D) 500 to 999 — — — — — — — — — — 1,000 to 2,499 — — — — — — — —_ —_ — 2,500 to 4,999 — — — — — — — — 5,000 or more — — — • — — — — — - — — — - No ewes 1 year old or older as of Dec.31,1997 67 598 (X) (X) 17 74 588 50 651 56 38 Table 40. Other Livestock and Livestock Products—Inventory and Sales: 1997 and 1992 [For meaning of abbreviations and symbols,see introductory text] Inventory Sales Item - 1997 1992 1997 1992 Horses and ponies farms.. 1 196 1 180 232 274 number.. 9 410 9 017 1 642 693 $1,000.. (X) (X) 3 039 1 497 Mules,burros,and donkeys farms.. 92 87 20 11 number.. 296 297 72 22 $1,000.. (X) (X) 51 15 Colonies of bees farms..• 282 328 13 10 number..i 6 670 7 802 107 256 Honey sold farms.. X) (X 122 123 pounds.. X X 359 008 341 255 Bees and honey sold farms.. X X 129 128 $1,000.. X) (X 327 261 Goats farms.. 238 228 79 80 number.. 2 490 2 986 850 1 405 Angora goats farms.. 12 13 2 6 number.. 88 90 • (D) 10 Mohair sold farms.. (X) (X 6 9 pounds.. X (X 683 441 Angora goats and mohair sold farms.. (X) - (X 6 13 $1,000.. (X) (X (D) (D) Milk goats farms.. 86 77 32 29 number.. 1 090 1 400 (D) 303 Goats milk sold farms.. (X) (X 32 31 gallons.. (X X 57 513 132 253 Milk goats and goats milk sold farms.. (X (X 49 47 $1,000.. (X (X 338 504 Other goats farms.. 177 167 51 55 number.. 1 312 1 496 494 1 092 $1,000.. (X) (X) 27 56 Mink and their pelts farms.. 3 3 2 2 number.. (D) (D) (D) (D) $1,000.. (X) (X) (D) (D) Rabbits and their pelts farms.. 95 128 39 46 number.. 10 247 4 984 13 473 14 574 $1,000.. (X) (X) 288 152 Fish and other aquaculture products sold farms.. (X) (X) 70 13 $1,000.. (X (X) 3 667 855 Other livestock and livestock products farms.. 58 21 27 21 $1,000.. (X) (X) 4 271 6 362 1997 CENSUS OF AGRICULTURE—STATE DATA • MASSACHUSETTS 37 USDA, National Agricultural Statistics Service FREQUENTLY ASKED QUESTIONS ABOUT THE CENSUS OF AGRICULTURE Page 1 of 4 NA 1 U.S.Department of Agriculture 1997 Census Of Agriculture .:. . General Information and ' ` Frequently Asked Questions - 'What is the Census of Improvements in... 0 1 Agriculture? 0 NASS Contacts ;it 410 Who is Responsible... 0 Uses of Data... 0 Confidentiality 0 Legal Authority eAG C,NsUS t SA Scope and Content... Report Forms Guide .4merrca untr on „' Report Forms,Information Sheets, and 3rd Followup Letter Agriculture 1. WHY IS THE CENSUS OF AGRICULTURE NEEDED? 2. WHO USES CENSUS OF AGRICULTURE DATA? JTODAY'S 3. HOW OFTEN IS THE CENSUS OF AGRICULTURE REPORTS] CONDUCTED? [Publications] 4. IS THE INFORMATION ON INDIVIDUAL FARM 'Agricultural OPERATORS KEPT CONFIDENTIAL? Graphics] 5. HOW IS THE CENSUS CONDUCTED? 'Historic Data] 6. WHAT QUESTIONS ARE ASKED IN THE 1997 CENSUS? [Data Search] 7. WHAT CHANGES WERE MADE TO THE REPORT FORMS SINCE THE 1992 CENSUS? 'Agency Information] 8. MUST A FARMER OR RANCHER ANSWER THE [State Offices] CENSUS? 'Census] 9. WHAT IS CONSIDERED A FARM? 'Research." 10. HOW MANY FARMS WERE THERE IN THE LAST [Customer Service] CENSUS? [Other Links] 11. WHEN ARE CENSUS DATA RELEASED? [Coming Events] 12. WHERE CAN YOU FIND CENSUS OF AGRICULTURE DATA? JUSDA HOME] [NASS HOME] WHY IS THE CENSUS OF AGRICULTURE NEEDED? The Census of Agriculture is the most thorough source of data about the structure and activities of the United States' agricultural production. It is the only source of uniform, comprehensive data on agricultural production and operator characteristics for each county, state, and the Nation. Because of the importance of this information, Congress requires USDA's National Agricultural Statistics Service (NASS) to take the Census of Agriculture (Title 7, United States http://www.nass.usda.gov/census/census97/cenfaqs.htm 6/15/99 FREQUENTLY ASKED QUESTIONS ABOUT THE CENSUS OF AGRICULTURE Page 2 of 4 -4- Code). WHO USES CENSUS OF AGRICULTURE DATA? Federal Government policy makers use the Census of Agriculture data in drafting legislation to help resolve agricultural problems. State and local governments use the data for planning rural development, agricultural research, and extension programs. Farm organizations use census data to develop and evaluate programs and policies that affect farmers and ranchers. Farm cooperatives, commodity and trade associations, and agribusinesses use the data to aid in locating new plants and service and distribution centers, allocating research funds, forecasting markets, and making advertising and other marketing decisions that ultimately support farmers and ranchers. For planners and economists, the Census of Agriculture provides benchmark data for current statistical series such as the Gross Domestic Product, Producer Price Index, and Farm Income Accounts that are produced by the US Department of Agriculture and other organizations, such as the Bureau of Labor Statistics and Bureau of Economic Analysis. HOW OFTEN IS THE CENSUS OF AGRICULTURE CONDUCTED? The Census of Agriculture was taken every 10 years from 1840 to 1920 and every 5 years from 1925 to 1974. The law was changed to adjust the data reference years to those ending in 2 and 7,beginning with the 1982 Census of Agriculture. The 1997 census is the Nation's 25th census of agriculture, and the first one conducted by NASS. IS THE INFORMATION ON INDIVIDUAL FARM OPERATORS KEPT CONFIDENTIAL? Yes. Individual farmers and ranchers are guaranteed by law that their individual information will be kept confidential.NASS uses the information only for statistical purposes and publishes data only in tabulated totals. Under Title 7,United States Code,NASS employees are subject to severe penalties if they release data on individual operations. The privacy of individual census records is also protected from disclosure through the Freedom of Information Act. HOW IS THE CENSUS CONDUCTED? Report forms for the 1997 Census of Agriculture are mailed to farm and ranch operators in December 1997 to collect data for the 1997 calendar year. Completed report forms are due from each farmer or rancher by February 2, 1998. WHAT QUESTIONS ARE ASKED IN THE 1997 CENSUS? http://www.nass.usda.gov/census/census97/cenfaqs.htm 6/15/99 FREQUENTLY ASKED QUESTIONS ABOUT THE CENSUS OF AGRICULTURE Page 3 of 4 To minimize respondent burden,NASS limits the items asked on the report forms for all farms to just these basic subjects: land use and ownership, irrigated land, crop acreage and quantities harvested, livestock and poultry, value of products sold, acres set aside under Federal acreage reduction programs,payments for participation in Federal farm programs, the amount received from Commodity Credit Corporation loans, number of hired farm workers, number of injuries and deaths, and operator characteristics. Additionally, 25 percent of the report forms include additional questions on production expenses, fertilizer and chemicals,machinery and equipment, market value of land and buildings, and income from farm-related sources. Report forms are tailored for various parts of the country and are specific to the crops grown in a farmer's particular area. WHAT CHANGES WERE MADE TO THE REPORT FORMS SINCE THE 1992 CENSUS? The 1997 Census of Agriculture asks for information to permit a detailed analysis of the Nation's farms. NASS limited the number of changes to the report form to reduce respondent burden and ensure comparability with previous censuses.New information will be collected on Christmas trees, maple trees tapped, and tractors. Wording changes were made to questions related to poultry, in order to maintain consistency among the census and other NASS surveys. MUST A FARMER OR RANCHER ANSWER THE CENSUS? Yes. United States Law requires all those who receive a census report form to respond even if they did not operate a farm or ranch in 1997. Completed report forms are due February 2, 1998. High quality census data depend on a complete response. WHAT IS CONSIDERED A FARM? For the purpose of the Census of Agriculture, a farm is a place which produced and sold, or normally would have produced and sold, $1,000 or more of agricultural products during 1997. HOW MANY FARMS WERE THERE IN THE LAST CENSUS? In 1992, the Census of Agriculture counted 1,925,300 farms in the United States, including 1,018,783 with sales of$10,000 or more. WHEN ARE CENSUS DATA RELEASED? NASS will begin release of data starting in the Spring of 1999, on both electronic and print media, with individual advance reports for all counties, States, and the Nation. http://www.nass.usda.gov/census/census97/cenfaqs.htm 6/15/99 FREQUENTLY ASKED QUESTIONS ABOUT THE CENSUS OF AGRICULTURE Page 4 of 4 Ilk A' WHERE CAN YOU FIND CENSUS OF AGRICULTURE DATA? You can find Census of Agriculture data through local NASS State offices,many depositary libraries, universities, and other State government offices. For more information please call NASS Census Division at 1-800-523-3215 or submit electronic mail inquiries by selecting the following link: Census Information Request http://www.nass.usda.gov/census/census97/cenfags.htm 6/15/99 Pe Pe. d- N,ia-4-2E> P.c- , l, -0 - -'d' -- - /// _ •Ga- e fi-i . ,, /0*0141-‘ _7t-tef-r- 0/4d"0- -4, / -_ 2-ast..- ea- 0 0;,4 W 57 4t /(/,*,-- 0,,A/- sT;79P✓/P- _ ‘-o NI ‘ 07--de-z _)l'‘.e ac-r- feL ac- /. 1- 7-,e-. , ___J_)__ . ././.e_V /e-e .,.. _ _ _ _ _ ___ -9_ 7‘e__ __ A.frek*/- y. _ io"? _ _ _ _ .)./ _ __ -#Z7--- . _ Aoei.,0, _ _- % -Tie---- _ ` -,- -. - 1/-60-r- aeesoe _,orea_ Z0,-_-_ ' Asti, _� �7 - /�� -f _ . _ 9 !ad%�/ �✓- / , _ /0_ as _ J �_ *----- --, _- _ � . ��' ,,,,, ;-ri _ - '-- , 6-17- , ,, .1-' --- am ��=�/14; Ze �e� - - � - -z� ��� y. - �- tee_ _7/ eg-r-_7 - / - 4•-"L_ Pl-te_. 4— TI4-Cr o 9R 1.0 PHONE .CALL e �� r lT .� DITIME�� P.MM..FOR M JUL 0I „ , OF d PHONED PHONE li.' S 5 2.- OUR CALL;` AREA CODE NUMBER EXTENSION MESSAGE - EL18! CALL '"- \ Wtt.L CALL W U/Off _ S AC11N i-f- 0 r -& rv0 TD i 5�Yt7U .. 51=E l.e tl. `SIGNED Tniirersar 48003 j . . fig: r .L , ( ,� 1?7 /171 ,7L.' • 02.-Hif c.n ' i f H 1 z ; f i I Date . Hour Ta WHILE YO !MERE OUT .......02.,. jzte..7 Of �— �Phone ‘ / 7 / s! — �/( r Area Code hone Number Telephoned r/Returned Call Left Package Please Call ✓ Was In Please See Me Will Call Again Will Return c Import nt Message (y id "icrAejl.... ‘iettrote._ _,e,47 ` 9 Ae-----ze--741,,_ 4 _ Uet-- 1.- S)" Signed AVERY FORM NO.50-736 INTED IN USA 7 -' 07 r F- y ems. t .� � ' ,°. a.a Viir A. .'/ xPi r y.. y - ' sSi'. k' i 1 F k, 'a9 6 12::s:r1 PEPE t}rrt�fil''E:t ; - • ' • a 13RENDA.TRI • F+ - VICTOR CILLIS , OK'I'O BER FML'�I ?11. 0 1.MAIN STREET WEST B1r1A srABt,E, ��tA 02668 ' - > (508) 367,156 t " -,-,..„ - _ March 1, 192 . Mr. Ralph Crossett t : ` 1uilr.ling Commissioner ,• `! • 1,• Town of Barnstable . ,., a. - . . •• .. , Department of Health, Safety& Environmental' '' ` ; r Building Division . 4' a 36'7 Main Streit - . Hyannis,:Massachusetts 02601 , - i y ' Re Oktober part, 2051 ,\4ain Street,West Barnstable MA '1 r , ' Dear Commissioner Crosser...' +. �• Y g. Stucb vte have not !..et heard further front you in response to my F'ebruar I0'1' letter trespondi.ng to your letter of- cbru€pry 5`') we thought that it might be help;ul to set forth fully it; one letter all of the relevant .facts, tit Mlle hope of persuading you that, indeed. the fain is not in Violation of the zoning by-laws.'in light of Section 3 olChapter 40A,.and to ask yati to rescind the Cease and Desist Order. As a starting point, We note that.the Cease and Desist Order pertains "to only the • I • nding programs for the public area.not associated 1,tiv''1 ~.e �2+irchase of a horse." (Crossett ,' letter dated February 5, 1999,para.3) Ciearil-,then • :n agreement that the use of the property for the raising. keeping and boarding of ho :- .finites a permissible use which is ''tit in violation'of the zoning +y 1'aavgi;8 an . .- • - . r farrntng venture,as deftten in 4 °�.;trot} 3.Chapter 40A of the (-tenet ali,aat s f, - -,t of darn),-our agree Tit. , •3 i. :i; t _•Qtttt is based t pon the spec1u.: wording c�f St:c t•on.3, v.hmt-h qa'es, in pertinent part No zoning ordinance or 'by-law• shall...prohibit, unreasonably regulate or require a , - special putt,for the use of l° :d for the prirriaty purpose of agriculture...; nor prohibit. - unreasonably regulate or ,t -uire a =-ecial: permit for the use, expansion or reconstruction of existing sr; tins the.eon for the primary purpose of agncLitnre.. except that all such activities Sri;- .be ltnnted to ,parcels of more than five acres in an area not zoned for agneulture, . t. G. l.,, c.. 40� , s, 3. a .' 1. A y ( r} .: `3:a\:rN.;S,�+n{sy.MII.Sn.:R'4...,.Mcw_ ,.vi.uY�...w........n• � :,.. �"'.. . y.. a� - � �" ... .. .:.:P,V '�ew4e,:..tea-.ila f..,... -.R', VI f4' ; 14 , rrtpP 13 '•-4,: 1 '.4 3F't`' EF' 1-+1=1 t D P. _ k Mr. Ra1ph Crossen Building Commissioner • March 1..1999 ' Page 2 Additionally, our agreement is based:,upon other statutes of this Commonwealth ., i which further define "agris:ulture"as fo lows ; • "Farming or "agriculture" Emearis]. farming in all of its branches and cultivation ••• - the raising of livestock including horses, the keeping of horses as a commercial r entetpiise, the l eeping or raising cifp6u1try'.•,and other domesticated animals,., ' ' , 0. G. L. c. 111, s. 1 ("Definitions") - t and f Land shall be deemed td be in agricultural use when primarily and directly used in • raising animals, including but not limited.to, •._, poultry, horses, ponies. ... , goats, ••., for `the purpose of selling such animals or a product derived from such animals in the • • regular course of business; or when primarily and directly used in a related manner . which is incidental thereto and represents a customary and necessary use in raising such animals and preparing lie'w or the ptoduc is derived therefrom for market.... •G. L,,c.6 l A.s. 1. Y =1� and . .. • Land not less than five acres' ii areashal; be deemed to be actively devoted to • agricultural "uses u•'hen the gross sales of agricultural products resulting from such ' i,c- uses ,., total not less than five hundred dollars ($500] per year. G.L.c,o1A,s,3, ' Finally, our agreement ii based upon the fact that the farm is in excess of five acres (and in fact is seven acres): Pursuant 44d the 'Town of Barnstable Zoning Ordinances, in the • • t 'kP district where the farm is toeat d, we are permitted to keep, stable and maintain at least twenty-five horses. (Town of Barnstable'Zoning.Ordinances. Sections 3-1.1(2)(b) and 3- 1.4) , i Having, said that,it would appear chat otir disagreement pertains to the role of the • Riding School in relation to thin farm as a whole, and whether a horseback riding school constitutes an `agricui,tural'" use accorded•special treatment pursuant to Section 3 of Chapter •• 40A, We hope to clarify in this letter that not only is the Riding School is incidental to the raising, keeping and boarding or house but, more iipartantly, that a dons hack, riding 4 S *1. f ,. r•ifriP �1 54 t <<44:="°i-F ,'' P,:3 • k F _ Mr.Ralph Crossett Building Commissioner - March l, 1999 :a ' Page school is indeed an "agricultural use accorded special treatment pursuant to Section 3 of • Chapter,4OA: • ' The Primary Purpose of the Farm is the Raising, Keeping and Boarding of Horses The primary function of the farm is the raising, keeping and boarding of horses, At present.'wd raise and keep four horses (tivo of which are niinia ure iorses) of our orvn:'arid ' board''five horses and three ponies, for a total of ten horses and ponies. in connection with the boarding of horses, we are resiionsible for the day-to-day care and maintenance of each horse, including daily turn-out and exercise, feeding, supervision of medical and health u' care, and ensuring that each horse,is properly bedded down each night. Of the horses 'boarded,several are younger horses who are being raised here'at the farm. We also provide • • riding instruction,to many of the owners boarding their horses here at the farm, because they seek;to both'de i°elop and advance their riding skills, which many riders will tell you is a life=la��g process. •Some individuals have pursued riding instruction here and elsewhere in order to detirelq q elenientary riding skills'sufficient to enable them to purchase a horse`of their own. • which is then boarded here at the,farrn, ;For those newer owners who are beginner riders, the Riding School provides them with an opportunity to further advance their riding skills, as well as an opportunity to train the horses ridden to become accustomed to inexperienced , riders. As you may know, horses live anywhere from twenty to thirty years, and do not .. fully mature until somewhere between their tenth and twelfth year, depending upon the -. individual horse, Many of the horses boarded here are under that age, and are still being "raised" indeed. since horses are domesticated animals dependent upon humans for their care and the "raising'process continues throughout their lives ." t Having just opened the farT last year, as yet we have not had tlae pleasure of having , any ot`the horses in ot.r care give birth, although we do hope that•thiis Will happen someday, lie ad ition tp ,raising, keeping;. and boarding horses at the farm, `;I have counseled ,and t`a assisted individuals.with both the purchase and sale of horses, • 1. .Ern t 1 w F: 1 '• t.f t' f-'E E ..:(V-,, P. 4�` Mr.Ralph Crossen Building Comirissioner March', 1999 Page 4 . Ridingjnstruction is Offered Incidentally and as an Accessory to Raising, ice in - and_Boarclin Horses, , , In addition to offering riding instruction to my boarders, I also offer riding • instruction to`ron.boarders, many of whom hope.to obtain sufficient skill to enable them to purchase a horse of their own one day. Riding• School truly The School� is incidental to the farnn's , 'primary fiinetio"i'or raising, keeping and boarding horses, and the'farrn's-rvenues'reflect that, Moreover, unlike some area riding academies, I do not presently advertise in local newspapers,nor in the telephone book. Most advertising comes from word-of-mouth ' .. A review of•the Massachusetts case of Henry v. Board of Appeals of Dunstable. '. Which defines ",incidental" an.d."accessory'uses with�respect to a,g-iYiculturai uses is helpful. a .1 j 418 Mass. 841e• 641` 1.E,2d 1334(1994), f An accessory or"incidental" use is permitted as "necessary, expected or convenient a y; in conjunction with the, principal use of the land." 6 P.J. Ronan, Zoning and Land r.`• . . Use Controls, § 40A.01, at 40 A-3 (1994). . The term "incidental" in zoning bylaws Or ordinances incorporates two concepts. . "It means that the use must not be the primary use of the property but rather one , which is subordinate and minor in significance... But 'incidental', when used to _ define' an accessory use, must also incorporate the concept of reasonable - . relationship with the primaryuse. ,;' i Flenry;-v, Board of Appeals of'Duutstabie,'41$ Mass, At 845, 641 N,E.2d at 1336. ' .. ..v.- •`Certainly the Riding School is an -activity w.hich bears a rcasorrab and-indeed' logical relationship to the raising, keeping and boarding of horses. The Riding School .1 • childrens program has the additional benefit of assuring parents that their child is involved in a wholesome, outdoor educational opportunity, in a supervised environment. Riding also . allows children to experience what was our primary mode of transportation for many , centuries, and to develop an appreciation of our history. Moreover, many parents prefer to allow their child to discover through riding lessons whether the child really is interested in ' 4 riding, as opposed to a passing fad, -This is especially important with •respect to the purchase of a horse, a not-inexpensive proposition in terms of both time and money, As in the Steege case, I raise, keep and board horses of varying ages, both young and older, some of which are sold. Steele v. Board of Appeals of Stow, 26 Mass, App, Ct. 970, 527 N.E.2d 1176 (1988). As part of the trai.nmg of some of,t;n S,ca,. *; , they are - "ridden by students in order that . thetas Say -become ac& sto 'd `to handling by i x• .� z tij t $ • , Ralph Crossen ` F 4 Building Cotninissionel r t March 1, 1999 Page 5 gy -.inexperienced*riders," Id. The.Rtding School is an incidental and accessory use to the- :' 'raising, keeping- aid hoarding of horses and Monies; Henryv, Board of Appeals of Dunst thle 418 Mass. At 845, 641 N.E2d at 1336; Steege v. Board of Appeals of Stow, 26 ,Mass.App. Ct. at 971-2, 527 N.t.2d at.1178. r . Riding School is an Educational and Agricultural Use Howe 'er, riot vithstandi�g the ,sinlilat ty of facts in the Steege case and my farm i operation, the General. Laws of this Commonwealth state that a aiding school is accorded ,, special treatment both as ail educational entity, and as art agricultural use. Please note that - the Department-of Revenue for the Commonwealth has recognized our activities (including , • the Riding School) as agricultural under Chapter 61A, which defines what activities ' constitute an agricultural use, .. 1 However, not only is Section 1'oi Chapter 61A mentioned in the Steege case, but so { t -' is.the statute defining "a, iculttare", Chapter _128. Indeed, in considering whether a riding. • school is an agricultural us; where better to look than the statute which specifically defines . and regulates Agriculture.. As you can see from those portions of Chapter 128 set forth below a riding school is specifically defined us an agricultural use under Chapter 1 28, and is subject to tile rifles and regulations promulgated by the Massachusetts Commissioner o, Food and Agriculture. t t The applicable sections of Chapter 128-are as follows. ' Section -Title `, , _� a , tN'A,,t,'y,... � .... .- -�.,i.!'�+'�ntio{ .t35'.. , ra . L...,, ».. „ ... ry 1x . . "�",, ` . IA Fanning, agriculture,fanner; definitions 2 Powers and duties of department of agriculture • 2A .Horse riding instructorsi.licenses; fees:; validity of license; duplicate -licenses; rules and regulations • 2B Riding Schools 6r stables;license; fee, rules and regulations; penalties 2D , Liability of equine professional and equine activity sponsors ke !,r 0, ai� .L.,.'y# t t , •F.,. r. • +"11'71-1, , , . - .. ,1 g• Mr. Ralph Cr ossen rossezr .Building Commissioner March 1, 1999 Page 6 ' , • W- ' hile ram, enclosing copies of these applicable statutes, I set forth portions of them below; @. Section 1: Definitions. The following words as used in this chapter shall have the followi:tg meanings: 'Commissioner',the commissioner of food and agriculture, "Department", the department of food and agriculture.. "Ridin school operator',, any person inning or having custody of one or more t, - horses which are"let for hire to be ridden or drover, with or without the famishing of riding or, vingitrstruetto,ts, , G . ' ' Section1A.; Farming agriculture, farmer; definitions. , "Farming' or "agriculture" shall include 1'timmmg in all of its branches ... the ' raising of,livestock including horses, the keeping of horses as a commercial enterprise... Section 2A: Horse riding instructors; licenses; fees; validity of license; • _ duplicate l.leenses; rules and regulations. No person shall hold himself out to be a horse tiding instructor for hire without being iiceri ed or such purpose by the co unissioner[of rood and agriculture]. . 1"h 'b rr i i stoner`stroll make e titles and regulations„govet-ritn 1h `ssstt rice and revocation.,of said license, and shall establish the minimum qualifications for the issuance thereof. if the qualifications of an applicant meet or exceed the minimum qualifications established by the commissioner he shall issue such license. Section 213, Riding schools and stables; license; fee; rules and. regulations; penalties. '' , Everyperson engaged in the business or operating a riding school or stable - where horses are kept for hire, shall obtain,a license therefor from the cost~missionet [of rood and agriculturej, the fee for which shall be fifty dollars, and such license shall expire on March thirty-first following the date of issuance, .... The commissioner, subject to the approval of the governor may make rules and regulations governing the issuance „and, „revocaztei:t tf.',s;a,a 4 lli ids` ci the t. l.' "=+°:+ ,i s,,c3• ,1f t P h i ', i.H `fi PC c Mr. Ralph Crosser Building Commissioner March i, 1999 Page 7 . conductin of the businesses so licensed and rylatit e to the maintenance of Elie • ' • i' - • Sremise ,- buildings and conveyances; the health of the horses or other equine ' l. animals,and the method and time of itispection and checking of said animals..,.. Section 2D: Liability of equine professionals and equine activity spans, s, (a)`" For the purposes of this section, the following words shall have the ' following meanings; . , "`Engage in an equine activity"}, riding, training, assisting in veterinary r 'passenger > va trea�rnar<t of,':drivinmounted or-beinga .upon an equine, whether or , > unmounted., visitingor touring or utilizing '- � an equinefacility as part of an organized w• : event or activity, or assisting a participant or show management. The ter '`engage in equine activity" shall not include being a spectator at an equine activity, except in cases where the spectator places himself in an unauthorized area or in immediate I proximity to the equine activity. :, h tf,quine't, a parse,pony:,mule, or donkey: • "Equine activity", (1) equine sliow$, fairs, competitions, performances, or,parades that involve any or all breeds of equines and any equine disciplines, ' including, but not limited tt, dressage, hunter and jumper horse,shows, grand prix ` ,l ,p g, three-day events,`'combined -training, rodeos, riding, driving pulling, , x cutting, polo, steeplechasing, English and western perfbr nance riding, endurance '.. trail riding, gymkhana games, and hunting; (2) equine training or teaching activities - . t. .... -or both;' (3) boarding` equines;iitctuding'normal daily" care thereof,.'-(rl1•�rrdi'ng, . . ' ° , • fuspectinzg, or evaluating by a purchaser or agent an equine belonging to.another, ..' whether or not the owner has received some monetary consideration or other thing , ' of Value for the use of the equine'Or is permitting a prospective purchaser of the • • equine to ride, inspect or evaluate the equine; (5) rides, trips, hunts or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor;(6)placing or replacing horseshoes or hoof trimming on an ' equine; and (7)providing-or,assisting veterinary treatment. • - "Equine, activity„sponsor"rt ail individual, group, club, partnership, or • , corporation, whether or not-the sponsor is operating for profit or nonprofit, which • sponsors, organizes, or provides the facilities for, an equine activity, including but `, not limited to: pony clubs, 4-H clubs, hunt clubs, ridtn clubs, school and college- ,,,,,t.", •,` 4'eM+, ,,e,,,,, ' . sponsored classes programs and activi,ti s itherapeuttc TidingTrograrr^,s,••tt .ote and � N`.,�, t. % P g . - .,1 IfAk� G}�1� ,"Af ,.,.� ,,,,,mom, �f %4 F6.�'� , .. "', ry • • Mr. Ralph Crossen Building Coganissioner March 1, 1999 r. Page 8 • • • farm owners and operators. instructors,--and promoters of equine facilities, including lout i otlimited to farms, stables, clubhouses, pony ride strings, fairs, and arenas at which the activity is held. µ .F"Equine professional",a person engaged for compensation (l) iz instructing a participant 'or x renting to a t artielpant all'equi e for"the - t ores of riding, driving'or being a `passenger upon the equine; (2) in p g� l p g renting ,. • equipment or tack to a participant; (3) to_provide daily care of horses boarded at an equine-facility; or(4)to train an equine. "inherent .. tj r . risks of equine activities dangers s or condition s whichh-are an integral part ofeqtiine activltie , including but no limited to: • ll)'The,propensity of equines to behave in ways that may result in injury, harm, or death to persons on or around them; (2) the unpredictability of an equine's reaction to such things as sounds, sudden-movement, and unfamiliar objects, • persons, or-other animals,'(31 certain hazards such as surface and subsurface . conditions; (4) collisions with other equines or objects; (5) the potential of a to act in , negligent manner that maycontribute to injury to the • participant g �, _ry participant or others, such as failin'g to. maintain control over the animal or not acting>,within his ability. • `l''articioant", any.person, whether *amateur, or professional, who engages in an equine actiVity,whether or riot a fee is paid to participate in siich equine activity. ,s " — _" (b) Except as pro ided ih subsectron`t'O, air equine activity'spon-Sb -,arre.glri'r e • • professional, or any other person, icyhicii shall include a corporation or partnership, • shall not be liable for an injury to or,the death of a,participant resulting from • inherent'risks of equine acltv[ues and.,,except as provided m quhsectton (c), no {; ,participant or participants representative shall make any claim against, maintain an M action against,or recover from an equine activity sponsor, an equine professional, or any ether person for injury,loss, damage, or death of the participant resulting from in any of the inherent risks of equine activities; , (c) 11iis section shall not apply to .ace,meetings as defused. in section one Or chapter one hundred and twenty-eight A • Nothing in subsection (b shall prevent or limit the liability of an equine activity sponsor, an equine professional. or a.n z.'uthorffp4i r{ 4.04,e r4,,4i t ti;kitet nsor. • • � z.w�s•,'.;i w t" O�t'�lba `�PrB"�'Uk.Olt+�s4vro�ckw`a�ri�d� s ` . i'M{r i 'f- t",1' i PEP . ,1 i 4 E,1:- 1 Y• 1 • Mr. Ralph Cros,sen ; Building ( arrun:issioner .March-1, 199 •-, ,age 9 • • I.'. 4. equine proff'ssrona4 • , or per,;•or.-. , • . , •(i) ( i provided the equipment or tack, and knew or should have known that the egttiptnenm.m or tack was faulty; and such equipment or tack was faulty to the extent that it did cause the -injury, +r(i,) provided an equine and failed to make reasonable y ,and prudent Y efforts to determine the abil.ty of the participant to 'n ;age safely in the , 1 <" -„ -e nine' ActiV ty", and' ietei`vitae the'ability of the'Participant to-safely m tag `the , particular equine based on the participant's representations of his ability; . 0 (2) owns leases', rents,' has aitthOri ed- use of, OT is oth rwise in lawful possession and control or the.lap-tit.,or facilities upon which the participant sustained - 'injuries..because of a cdarn Brous latent c riditian which was known to the equine 4 activity sparr;lor, equine professional, or person and for which warning signs, , t plw ruant to subsection(d):have not been conspicutaa.tsly posted; ` .. . .. N (3) corntnits an act or omission that constitutes willful or wanton disregard for • t, 'the safety of the participant, and,tliat actor omission caused the injury; at , w (-4)intOtionafy irautt s the p c.wpant:N (d i ,Eve • e cane professional shall post and maintain signs which contain' • ) t " � fit- , • '• the warning specified in paragraph(2). Such signs shall be placed in a eleaily riic ble It cata��n in the proximity f r,tl1 equine activity, :lie_i�°arrriiig notice , , • pacified i ii ar:agraph (2)shall appe on the sign in black letters,with each letter.to ' i be',a n inirnprn of one inch in height. ' Every written contract entered into 'by an . equine professional for-the- providing-of professional services, instruction, or the - rented sit"egtftlartaerif or tack OF ati'elli in-efa a partitiparit whether onlbt tilt t3:ittdc - • , ; . ' irirole.s eqi.tnc activities on or tiff the location or site of the eclttirze prnfsroraal`s btrsirtcss, shall contain n :.dearly' readable print the warming ;totice specified'in - paragraph,(2), , , (2) The, signs and contracts described in paragraph (1) .shall contain .the following notice: ',: u • WARNING ' • Under Massachusetts law, an equine professional is not liable for injury to, or the death of, a participant in equine activitreS'ris..tilting fr-diriii t Ti berent risks of egnint activities. pursuant to Section 2D of C'h.apter,12S.of the General Laws. , "=y .. . ,;; r:t tip. ' ?yc 4.F11 FEPE h-1 ;'*tw t', • Mr Ralph S,,rosseTl Building Commissioner March-1, 1999 Pa e l • • • • In cIos_ng, we would like to take this opportunity . apo10 izr: to you for bean p t Tito the iniddte of what is essentially an ugly dispute between US and our neighbors, who now seek irnpperly ro manipulate you and your office for their own purposes and ends, " , dpi...,false..pretense of come-Tins:regarding `zoning,-the-historic-nature of-theitreir, the' w•elfate on animals and ch ldx'en. As you know. our neighbors have submitted a defamatoty, libelous and indeed scandalous petition falsely accusing us of va ions things. • This IS particularly hurtful to us because "C`i.ctor, my husband, is a pediatrician, whose professional :repu.tatiott has been,libeled by these false and mean-spirited accusations. i. As you know. none of these false accusations-are relevant to your consideration of • , zoning' issues. TO the extent that these false accusations come under the•jutisdiction of tt i •'.¢ wn depar.'tmetzti they fall wit i t the jurisdiction of the Board of Health. Pleat c note that $F our neighbors have caused the health officer to visit the farm on numerous occasions and riot once have we'been cited lot' ank violation; Indeed, we welcome all town officials.to ' t':sii't e farm,arid to revie i' our eperatiOnS,.,. It is our belief that our neighbors, the Penney's, the ' iasor s and the `l"routmans, arc: me primary instigators orthe defamatory petition, and that some of the persons signing this petition, othcr•thatt them, in tacit were not a=dare;of the accusations set fort therein, and have disclaimed that they intended to,make the accusations set forth therein. It ,semis that • because of other disputes,these netallbors have decided to retaliate against-us in a malicious attempt to shut down the Farm. t w 'ertat Tw 'find iri ��is t a ` :Jedon"v lav� eitheth "euies,�Trottins a�� , ' . Masons ever once voice any of thou'concerns or allegations to as directly or print to this - • neutron Particularly with respect to the M 'sons and Troutmatis, it seertts h pocrit, :f car • their part to try to have the Farris dose down, since our farm predates their purchase of the abutting lots, and they; each were most c;e ainly,akr are that the f rt wtts here. To no claim that it is'a 'nuisance'' is ,sonic, since they could have chosen:to purchase elsewhere had they truly desired not to reside next to a farm.. t , • g it is similarly ironic that they argue that the siiice neighborhood is an historic area, that the-tarm ',11ould be closed, .Evidently, the fact that the farm mid riding school engage and preserve a lifestyle quite in keeping with the I esttile, cu'ture and economy of Cape Cod in by-gone days is being overlooked, Indeed, the Old King's Highway R-egr Etta �5'ori A t_sgcl}s to preserte not only • � r s..J 4404404* • i w :: _ , �+; '»fir,r�w,,r�. �. �-•.. .. i',p 1.?•c'tlPM PEPS i& � � I. . t .12 • Mr. Ralph Crosson { : Building Commissioner ` March 1, 19) Page, I 1 • • the historic ap earance of the area, but; riser lire historic cult'tre and activity of the area.. as. r set forth in Set:titm I, entitled "l,tt.posse":. • z'he purpose of ti:e Act is to prontote the ten wetf re of the inhabitants of' the appiicsrle regional rnettier t s vTts 86 Included, through the protnotiort of the •" educational, cultural.' economic, aeithetlt and literary significance through the .preservation and protection of-buildings', _settirics and pfaces`W'ithirt the houndaries : • or the regiOrial district and tr rohght the•developnrei t and maintenance of appropriate. settings and the exterior app:arance orsiich bctildtnws a►,d places, so as to preser^,•e • • and maintain such regional district as tl conterripetary landmark compatible with s hist ti c ,list ti. literary a:t ae�stla tic 'adiuon of Barnstable County, as it existed in the earl)„,days of cape Cod, and through h prat'tenon of its herita;c.. • 'Old K n 's Hif h s air Regional Historic Distt-ic t Act, Section I. {: • r Addittonallt.,the'Act def"ittes the term.''kenta "as follows: 1-lerCta '' —value in the cuittitat bfe9 afthe past, because of their importance to till ti r- conimurtmty lire of (Thee.Clod, wl}el' rr.e. come dower through the generations to make.u; Our wax of life, This 1- been achieved by means of old buildings, industr yy furniture,utensil; old> happenings and expresitions. They have made the unique salty fla or of Gripe Cod that will never be forgotten but will be preserved for future generations, as a saris of insuring the integration of those qualities into a ' ' ns contemporary `Y4a 'f ' • Old King's Highway Regional Historic District Act, Section What Cohlti be more in keeping witethe herrrage in a;ncrrdance with the purposes the Old . n 0. Highway Regional Historic` District .Act than a working farm, educating todayx's childmns`through:hands-On expedc c ,tiboutbut the care and raising;of t‘tat was once the primary triode'of transportatiorfOlF resldf tits of the i own, of'Barnstable', and the primary ehhood of its tesideiits`' - -• owever, a es the`to n official craned with`et felr=ent of our zoning ordinances, we understand that this is beyond your purview' in this Instance, and recount this only so. • that yoti 'rna yR nave a better understanding qf the motivations of certain persons, tst appreciate that Your co eern', is. solely t%.iaether the Riding School constitute' an "agricultural" use, or an incidental and accessory us-.. •4F ,'s:. )ter wittO S't‘k k+tkktSe, .order Section 3 of Chapter 40A As I hate se forth alb,ke, it is Accordingly, u> respectful*: 1 request that,ou r°es✓otrict the C.ea e.'and k' iq rd'ti:"' +' x' "V,c rV 'pia "* al _1101T% w q �'I41444 • - '1)-.,F 0.-..1 '9 1Z':Y...;CP1'1 PEPE '.'-, .:;14,F,f,',I-1.,., • . . P.„I'3 ,: . ' • : •i • M .i f 5 3 4tS5.r71 4 L.ii1u'ilt?.C1 4.k.fi ft1; g,-OT. a l' { ;. g, `tek'. $ktf cti,I d-kt 4'j. +ir conk ia,lz ativr'. �, 1 ,_ Ls A�t i S=t• It 0.11 } C'.J` .1 N D / • 4. ' 11/kCIOL 4_.1u4y 11.,::„1l, . . .. O t+ 4.4.411. 41 I'J :}?t' 1.,,M 1@• }i . ,5. , " -4, •• t F, 4 i . } ., ' } • • - s i. n # � f • • 4 y ., • } . - _ �r £ < �" ,. • 6 To the Town of Barnstable We the undersigned neighbors and people from the town of Barnstable are very much in favor and support of the operation and activities located at 2051 Main Street, West Barnstable, referred to as Oktober Farms. There is another petition circulating the town to close the farm due to zoning regulations. We protest that. Under MGL. Chapter 128;1A, and 40A;3 that Oktober Farms has the right to function at all its cavities under the law of Farming and is exempt from any zoning regulations. We also have read the allegations against the farm and have seen no evidence of these to be true. (Please see attached Addendum). We are very supportive of the farm in this community for it provides a safe and healthy environment for both children and adults. We recognize your efforts to regulate and protect the Town of Barnstable. Please consider the farm as a positive attribute to West Barnstable, which is historically known as a farming community. Print Name Si ature Address L 1«ul Pc)(J(e, n IA 1c '. ; c.r 2(a ( nf1 KW, (e -�,-,s f��� LES • TR. 0 G� _ 9' Sc� F �t1 • ) , ,r /IdCeM/ �' 7 690e iSMBLe �� CAd Ariz kRIsT,N BER•QSe ' : : G Au..(2., 74-1 'iNDE2 %us L,IV. f.fiRiu t �Sor•.•r �,A. F 161 1651 I4y►A)NK ISO . 14 T-Ag Lb'. t /V�w0 C nsh �► ►1� y`�mm� �l G l vfri/ zzu/ t"la irt ' V tin.3474 1* SS t -� ^� C. �C) k ITN a,r, .5-1- 1A) • a r r� •-, �� /1/( Ig4.41 ✓�UI:lI k -�y�,4 a i e e11 .n1q,')0 s t,() 3 a✓rt0 iteic../.�. n�16`_ 3v5:5 "f.7x:-4iv 57f ��7-•v ��� ,�N 1.,�j Via, 60 a 1-,\c,\`1,S 1 , / kso / Aiiii To the Town of Barnstable We the undersigned neighbors and people from the town of Barnstable are very much in favor and support of the operation and activities located at 2051 Main Street, West Barnstable, referred to as Oktober Farms. There is another petition circulating the town to close the farm due to zoning regulations. We protest that. Under MGL. Chapter 128;1A, and 40A;3 that Oktober Farms has the right to function at all its capacities under the law of Farming and is exempt from any zoning regulations. We also have read the allegations against the farm and have seen no evidence of these to be true. (Please see attached Addendum). We are very supportive of the farm in this community for it provides a safe and healthy environment for both children and adults. We recognize your efforts to regulate and protect the Town of Barnstable. Please consider the farm as a positive attribute to West Barnstable, which is historically known as a farming community. Print Name ature Address VV l',11;t _ ��--�' 2 ; ;1•�,r,,;✓ a G✓ (Sn,ctisr��� J -1 1)1(i1/11, " ' -r MAU '1G ,& . 1 k1A" /./.,, ill c';>l'ii ,ii,i4 /ram/ 1(4, ) "! i /-'—L C. v f/l�s' (� ' �.tiJ - 'Jr�rAS/r��'iG -- iliT �U rre t'i 1'vi.• ,LA NJ tit Wi' 1-A. fit) ;�:ftl 1t-Z ,,`` / �1 rU (�r.rvtr 'Ti'(,.nf1 co +'��0.1r�'1 � �.�r� �G`�L1�1 � • S�.t[Icuif(� ., pp ( � - �/z �/ 7 e �� /9PSSS l7A'rr,,� 1•v/i(';'i� �"�„�`^ /,14/�.f�iC?s�1..�� hc-/�t��.�t C.` �,.j s i,'/.e t/�. �c�fQ �P� ; i ,�,G�d/c. tdr ,. t: :,f-L!�[-i M 1 / I lilt? L.��r/i,J ; 4 7 4.,11 f Lcan 6 jai)li«ll:fll ; ;.a atocu�/ , A 1l,' is. K F n 'd k l' I �r1 Aj. , a Sf&)C Us) V rA,,,.rn-'C<</- 114. .'"dine r>`*, /14yrIs;7 ,- '� �z ,/v( 'd, E/?'. '016/f ._ ,.•jric / r l ' +,�GZrrvule C. /fc.1//reacc >if 2� £' " 2,-,_. A'1 6/al�. �9Jr ('�/fetr4/1i14 v /1-' 1 AL -Aiiwoiliddi To the Town of Barnstable We the undersigned neighbors and people from the town of Barnstable are very much in favor and support of the operation and activities located at 2051 Main Street, West Barnstable, referred to as Oktober Farms. There is another petition circulating the town to close the farm due to zoning regulations. We protest that. Under MGL. Chapter 128;1A, and 40A;3 that Oktober Farms has the right to function at all its capacities under the law of Farming and is exempt from any zoning regulations. We also have read the allegations against the farm and have seen no evidence of these to be true. (Please see attached Addendum). We are very supportive of the farm in this community for it provides a safe and healthy environment for both children and adults. We recognize your efforts to regulate and protect the Town of Barnstable. Please consider the farm as a positive attribute to West Barnstable, which is historically known as a farming community. Print Name Signature Address Srl Lt.� OKu i..) at tl. ,p 54 t j I-4 NO :JT iWisi3'ml'Y0)i..* ‘ L(...44t ...t- ,4 i 1 -Ftv-r if 1 AA 0--.1f 7 1 fit ,Ce. 41,ti&r Ct 1) 134),j (.... l 7/01: 0/11idAL filit (1) JPoi,�1 u e I i ne If6r n ISo Ine ,,,, N nis c t i ffc61;0 n C h S' �q i i/4i , y .p 1 1 1 i [li{ d i 1 Q j C oO f K p iat tit2G (.AI• 6eti.41 Oat 6 S Rlll r I in T,l owe! 'tat/ - 61.4.4A {:,4_s_- (E ' o/ _il i 1 ) � J' n t . : . tasczb ..._ 1Jokx'f (, t Q t l� -�4; ,L. . � ,ctc �Y C- ( c i I xtiu) . j i 1 t, AZ 4iii To the Town of Barnstable We the undersigned neighbors and people from the town of Barnstable are very much in favor and support of the operation and activities located at 2051 Main Street, West Barnstable, referred to as Oktober Farms. There is another petition circulating the town to close the farm due to zoning regulations. We protest that. Under MGL. Chapter 128;1A, and 40A;3 that Oktober Farms has the right to function at all its capacities under the law of Farming and is exempt from any zoning regulations. We also have read the allegations against/the farm and have seen no evidence of these to be true. (Please see attached Addendum). We are very supportive of the farm in this community for it provides a safe and healthy environment for both children and adults. We recognize your efforts to regulate and protect the Town of Barnstable. Please consider the farm as a positive attribute to West Barnstable, which is historically known as a farming community. Print Na a Siena , 4ddress C/.),ru N F)0 Aki6k e i, �r =�'/7 Zak/o/?qq I' 4,),9/z/S . f e-mt zuiN . ` u i t u4i <jZ �' '1 ( - 4). 11 ih -PcAi,NA r tiy,Z%vr/i - 1 e Id C/i cw ( El? C , 15 j Ci h'i7,4 4-1=/?/i w :fiwivs rps,,, G /B who , h(al ) (a.ti '►' fly S G4u v,cL 1 h c. S Aili LL- -ef cs / _ al .0 /UC lvA.il is Ln. kl. --3,,,` (e 1� vim' e1' ' �Q}�4 ,� 'mil /c7 4 nig 1k,( ' �, Paz ?J cS 6))k, ►lIG ._irei0rul 4 i drillred ��A20; N6L-C i , To the Town of Barnstable We the undersigned neighbors and people from the town of Barnstable are very much in favor and support of the operation and activities located at 2051 Main Street, West Barnstable, referred to as Oktober Farms. There is another petition circulating the town to close the farm due to zoning regulations. We protest that. Under MGL. Chapter 128;1A, and 40A;3 that Oktober Farms has the right to function at all its capacities under the law of Farming and is exempt from any zoning regulations. We also have read the allegations against the farm and have seen no evidence of these to be true. (Please see attached Addendum). We are very supportive of the farm in this community for it provides a safe and healthy environment for both children and adults. We recognize your efforts to regulate and protect the Town of Barnstable. Please consider the farm as a positive attribute to West Barnstable, which is historically known as a farming community. Print Name ` - Si tore Address v.«1 I. SU l `'.J a'\ Laa ‘<i,' SAlew rW,J "Vt f ADDENDUM 2/10/99 • This addendum is included to specifically outline my response to the petition against my farm which has been filed with the town. The petition makes request of the town and The Olde Kings Highway Historical Society that it enforce'supposed'Zoning Regulations which would prevent the commercial use of • horses in the area at or about 2051 Main Street, West Barnstable. The petitioners list horse-related commercial activities which they object to. With respect to the complaints of: Conducting riding lessons, horse-leasing, horse-boarding, horse-camp(horse-riding as a summer activity), birthday parties which involve riding and trail riding. The simple answer is that all of these activities,for which I am fully licensed and insured, are exempt from town zoning requirements as described in the body of the attached letter. Accordingly,the petitioners are without any legal foundation from which to base their position. It should be noted,the petitioners state that "...trail riding on 6A and neighbors properties has resulted in an ongoing nuisance and danger to this neighborhood ." This is a false statement on its face. I do not trail ride on 6A and I do not trail ride on any property owned by any petitioner. It should be noted that nuisance complaints or actions resulting from any ordinary farming or agricultural activity is prevented under M.G.L. 111 Sections 1, 125A and 143. "The keeping of horses as a commercial enterprise"is covered under these sections. The petition complains about traffic and parking along the right-of-way. The amount of traffic is only that which would be ordinarily expected to support an exempt agricultural enterprise such as my farm. It is nonsense to suggest that any traffic beyond that allowed by my agricultural zoning exemption would be generated. As to parking, all cars which frequent my farm park on my property. My property includes both sides of the right-of- way. • The petition complains about excessive human,vehicular and animal noise. Horses are extremely quiet animals. Any other noise generated by my farm is only such noise which would ordinarily be expected to occur in such an agricultural enterprise. This farm is bordered by Cape Cod Community College's athletic fields and courts. I can not be held responsible for any noises which emanate from there. The loudest noises now occurring are the construction noises which emanate from the new construction off the right-of-way. The petition claims improper management of animals resulting in roaming of animals on public and private property and subsequent property damage. All horses are kept in tum • - out areas which are fenced, or in stalls in the barn. Rarely, as is to be expected with the keeping of any animal in agricultural use, a horse or two have'escaped'they were then promptly caught and returned to secure areas. I am not aware of any damage having ever been done to property as a result of this extremely rare occurrence. It should be noted,that there have been occurrences in the past in which other horses, having nothing to do with my farm, after escaping from their facilities,do come and go on public and private property. I can not be held responsible for any such other roaming horses. f Petitioners claim improper management of clients resulting in trespassing on foot and on horseback. The only trespassing which I am aware of is the fact that area children trespass on my farm quite regularly. "No trespassing"signs will now be posted along my farms borders to attempt to control this problem. Please take note that there are presently no trespassing complaints on file by any party against me or have ever been previously. If any complaints arrive after your receipt of this letter, and this letter being made public,the circumstances could then speak for themselves. Petitioners claim improper management and disposal of animal waste. I regularly move all animal waste to the farthest back corners of my property in order to respect my neighbors. Animal and waste odors are extremely low on my farm and are completely with-in the stated requirements for exempt agricultural uses as described in the M.G.L. sections listed above and in the body of the attached letter. Nuisance claims based upon manure odors are prevented by Law. Petitioners claim that the animal waste results in" unbearable horseflies". In the many years of agricultural use I have observed only a handful of horseflies. These very large flies are extremely rare and are attracted to any mammal and are not interested in manure or odors at all. There are, of course, swarms of greenhead flies,deerflies, mosquitoes and gnats. These are the same insects which are a problem for the entire northside of Cape Cod and have been for many, many decades or longer. Once again, I do not attract flies to my neighbors homes and any flies which do occur at my farm are with-in the parameters which fall under the description of ordinary agricultural use and are,therefore, protected under law. Petitioners claim improper management of human waste by the statement that clients have defecated in the woods,thereby,creating a health hazard. I am not aware of any client who has defecated in the woods. Although I do encourage clients to see to toilet needs before coming to the farm, I do allow use of my bathroom when needed. In an effort to satisfy my neighbors concerns I will add a portable toilet to my property as soon as possible and not later than June 15, 1999. Petitioners claim verbal abuse by me to others. I deny any such abuse. Finally, petitioners state that"our neighborhood is an historic residential area. We request that it remain so". This is only partly true. My property has been used in agriculture, on and off,for hundreds of years. Before I purchased it more than four years ago, and since then,this property has been inagricultural use.Also,the property under and around the homes of the majority of the petitioners was in agricultural use. The fact is that our neighborhood is a lovely historic area and that my farm fits right into that historic mix. I intend to be a good neighbor even though the other neighbors obviously • feel differently. While they are entitled to their opinions they are not entitled to misuse town offices, or the Olde Kings Highway Historical Society,to violate State Law. I am fully entitled to operate my farm as described under State Law Respectfully submitted, Brenda Cillis MAR—OS-99 14 .28 FROM:PEPE AND HAZARD LLP ID:6178959255 PAGE 1/4 PEPS & HAZARD 150 Federal Street Boston,Massachusetts 02110 Telephone: (617)695-9090 FAX: (61'7) 695-9255 EAf°CT4+TTy 2'1Z�3 rL'�' A _CSZTER SHEET DATE: March .5 1999 TRANSMIT TO• Ralgla_S cz igu Cs llsnlssioxAK PLACE: _ 'down •ng D nart�anen PAX NUMBER: (5081 72D-6230 �. PHONE NO. : (508) 79D-622 RE: _____Oktohe ar �- Ridi�� School Flr �ja Tri 20 _pia n Stre t, 11,___EtaraltablA SENDER: Julja C a Molloy CLIENT NO. : _ 1234-2 TOTAL NUMBER OF PAGES: 41 (INCLUDING COVER SHEET) IF YOU DO NOT RECEIVE ALL CP THESE PAGES, PLEASE QQVIACT L1$ AT ONCE! MESSAGE: PLRA_FIE SEE yTTYCHED_ • rm^'r"c; THE IN20R.MATION TRANSMITTED BY THIS FACSIMILE IS CONAIDL"t7TIAL AND I5 COPIVEYED Y.NDER PRIvt.0 E. IT IS INTE3DFT;. ONLY FOR TIa8 VSS OF THE xAMET RECIPII 4T. IF YOU ARE NOT THE NAMED RECIPIENT OF THIS FkCSIMILE, YOU SHOULD BE AWARE TEAT ANY READING, COPYING OR INSTRIEU"tIOJ: OF TNIS COMIUNICATZOm, OTHER THAN TO THE HAP= RECIPIE!' T. IS STRICTLY FR0FIBITED. IF YCU HAVE RECEIVED TNIS IN ERROR, PLEASE IC1W1234i1./433i$.I IImDIATRLY NOTIFY THE SEI11ER 8Y T£LIPHONE, AND RETURN OE OESTROY THE ORIGIITFL 3.r56p94CMVBI TRANSmIESION WITHODT HARING A u?DY. MAR-05-99 14 .28 FROMPEPE AND HAZARD LLP 10.617895925E PAGE 2/4 PERESIMARD LLP LAW OFFICES 150 FEDERAL STREET 28TH FLOOR BOSTON, MASSACHUSE I 102110-i 745 TULIE C.MOLLOY 617/695-9090 FACSIMILE 617/695-9255 (617)695-9090 jmol loy®pcpehazard.com Via Facsimile March 5, 1999 Mr.Ralph Crosser Building Commissioner Town of Barnstable 367 Main Street Hyannis,MA 02601 Re: Brenda Tri &Victor Cillis Oktober Farm,2051 Main Street,West Barnstable MA Dear Mr. Crosser': Attached please find a January 14, 1998 letter from the Massachusetts Department of Food and Agriculture to the Zoning Board of Appeals for the Town of Barre, addressing the issue of a horse operation. As you can see,this Department cites to both Chapter 128 of the Massachusetts General Laws and the Steege case in reaching its decision that a riding academy is an agricultural use provided with exemption pursuant to Section 3 of Chapter 40A_ Respectfully,I would again ask that you rescind your Cease and Desist Order. If there are any questions,please feel free to contact me. V truly yours, ulieC_Ma Attachment cc: Ruth J. WeiI,Esq. Brenda Tri& Victor Cillis,M_D. BOSTON ixci HARTFORD SOUTHPORT MAR-05-99 14 :29 FROM:PEPE AND HAZARD LLP ID:61799959255 PAGE 3/4 "inn. . . COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS A DEPARTMENT OF FOOD AND AGRICULTURE „— j 100 CAMBRIDGE ST,. BOSTON. MA 02202 6t7-727-3000 FAX 727-7235 January 14, 1998 ARCED PAUL CEU..UCCI VIA FACSIMILE TRUOY Coxr coveraor (978)355-6152 Sccroary Zoning Board of Appeals JONATHAN L.HEALY CAmmis3iodcr Town of Barre Henry-Woods Municipal Building Barre,MA 01005 Re: Glean and Sandra Dubey,467 Loring Road,Barre,MA 01005 M.C.L. Chapter 40A,Section 3 Dear Members of the Zoning Board of Appeals- I wanted to take this opportunity to submit the Massachusetts Department of Food& Agriculture's(the"Department's")position on the Dubey property in your town. The Department finds that the horse operation being conducted at the property by the Dubeys constitutes an agricultural use and accordingly Massachusetts General Laws Chapter 40A,Section 3("IMIGL c. 40A,§ 3")applies. In the nearby Town of Stow,a similar situation arose in 1984 in which the Massachusetts Land Court ruled that the operation of a boarding stable for horses and a riding academy was an agricultural use protected by said MGL e.40A, § 3. On appeal,the Massachusetts Appeals Court af5rmed the ruling of the Land Court,see 1MMitchellt�teege vs.Board of Appeals of Stow,26 Mass.App. CI. 970(1988). Furthermore,the applicable definition of"agriculture"at Massachusetts General Laws,Chapter 128,§ 1 A,was amended in 1995 to include"the keeping of horses as a commercial enterprise." It is my understanding that the Dubey's faun meets this defsnition. Therefore,MGL c.40A§3 applies and the Dubey's current land use does not require a special permit. The Commonwealth's current and historical commitment to supporting agriculture is clearly evidenced in its body of laws. The Constitution establishes"die duty of legislatures and magistrates...to encourage private societies and public institutions, rewards and immunities,for the promotion of agriculture..." (Mass.Coast.Pt.2,c.5,§ 2),and Article 97 of the Amendments to the Constitution declares as a public purpose "the protection of the people in their right to the conservation,development and utilization of the agricultural...resources." These agricultural mandates are restated and amplified in Executive Order 193,which protects lazed in active agricultural use. Further agricultural protections enacted by the Legislature include authorization for the State's Farm Er err Discount Program,Agricultural Incentive Areas,Agricultural Preservation District Program,and Farm Viability Program,and limitations on nuisance actions against forums. Massachusetts has a rich traditiouof protectiog and nrorreotinn the keystone of its founding,agriculture. ,� u Po K"Fax r Note 7671 arse .a jqq 'IP oI, 1 VC;C- Mpl{O C 4,fQC Rwrie x _° b€ 1e-7-3®ao>c Fg " C s — S� P"`4 ____ MAR-06-99 14:29 FROM:PEPE AND HAZARD LLP ID=6176969266 PAGE 4/4 I�HI, r r rL•Qu:!'lt ult: 1 ut t'vvu u,icuvu " • . _ The need to actively foster agriculture is more argent today than it was when any of the provisions listed above were written. Both the number of Massachusetts farms and their acreage axe falling at alarming rates. From July 1997 to July 1998 alone,Massachusetts lost 27 dairy farms,and there are only about 300 such farms remaining today. As farm lands are developed,valuable soils are lost forever,along with open space,family traditions,a sense of community,and ether qualities that make Massachusetts special. While agriculture is a five hundred and thirty million dollar isidusiry in the Commonwealth,and agritourism is a growing source of income for towns,these economic benefits are just as threatened today_ MOL a.40A,§3,one of the many Massachusetts statutes enacted to foster agriculture, explicitly preempts local zoning laws. Therefore,under the Home Rule Amendment to the Massachusetts Constitution,local zoning ordinances or by-laws cannot frustrate its purpose. MCrL c.40A,§3 provides,in part No zoning ordinance or by-law shall ... prohibit,or unreasonably regulate,or require a special permit for the use.expansion or reconstraction of existing structures ... [on land]_--for the primary purpose of agriculture,horticulture, floriculture,or viticulture,including those facilities for the sale of produce,and wine and dairy products,provided that during the months of June,July,August and September of every year or during the harvest season of the primary crop raised on land of the owner or lessee,the majority of such products for sale... have been produced by the owner or lessee of the land on which the facility is located... Statutes like this foster vanishing farms and ways of life and the benefits they bring to communities,the economy and the environment.While localities may,etongistent with this statute,develop interpretations that provide more explicit prOtection to farmers against local regulation than a narrow interpretation of this statute may allow,they cannot decide to offer less. To do sowould be to defeat the very purpose of Chapter 40A, Section 3. I hope this will help you in your review of the legal arguments presented at the hearing conducted on December 2,1998 and the subsequent decision to be rendered by your Board. If you would like to discuss this with Department counsel,please do not hesitate to contact the Department_ Very truly yo Jo L.Mealy mmissioner JL1-Ilmnrtl OCTOBER 16, 1997 Zbe JgarttltabLe patriot PAGE 7 _ Fridays s •is at Okobeir arm. . . r: '441tg , , „ Continued from page 1 on one'spersonal appearance in odh- business of beingyoung. Too often, P g PP jY g .� purs, riding boots and rough tweeds, Brenda notes, chronically ill young- tone of voice that he's meeting one of then the brown-haired, deeply tanned sters are robbed of their childhood. : Brenda's favorites. Bingo, she says, Brenda Cillis image would be looking , •Sharing limitations as well as joy a : has cancer and was supposed to die at you from magazine covers. Still can be a help to all.The Friday events .,„ � .. _ u threeyears ago. another achievement:Ms.Cillis is na are onlyfor the children with •s ecial s. i • fi g P : - � : When she was 17 years old,Brenda tionally ranked as a roller skater. She needs,rather than mingling them with E . • R: : �,; : was diagnosed with a relatively rare trains regularly in Taunton. other healthier children. g; w. p:,,,,,,,,',f i ;ti chronic condition called Triad After New York,Victor and Brenda •Attendance can be flexible. "M ' ' " w s `, .. Y i u a ,,,aSampriss Syndrome, which attacks lived for four years in the Seattle area children,"as Brenda calls them,have 6 1 , parts of the body, including lungs,si- where he practiced pediatrics. They exhausting schedules of hospital treat- b a nuses,bones,stomach and liver.She's still own their small farm near Puget ment and other concerns. Theycome g r had surgeries,chemotherapy,steroids, Sound.But the call and climate of the to Oktober Farm onlywhen theycan • , i k . and one of her knees is metal. The East Coast lured them back,trailering and want to.Nor do their parents have : '':4., i �' disease,she says,is regarded as treat- horses across the country."He's a boat any financial obligation.Care and love itl.:! able but not curable.She's still hoping person and I'm a horse person," says are free on Friday. ? to live to be 100. Brenda.She praises her husband's con- The guiding force is defined by the -`� . a. Although Ms.Cillis is down to about tributions to affairs of the barn(he did founder: "If you have faith you have z' . , Q r one-third of original lung power,some much to build it)and the land.A week- the world." of the other effects of the disease have end ago, Victor was left in charge of Brenda Cillis believes the numberket, .' Q been stren thenin —in terms of will, the stock, while Brenda took the two of chronicallyill or traumatized chi g g �` � � � faith,character and compassion. boys to Washington, where they had dren on the Cape is relatively small, k z 1 • With a grave illness,she says,"You been selected to perform as acolytes in but that there is more need here for ‘, "' a< , Y,4f learn to take care ofyourself and never a service at the National Cathedral. r =� 1- " k places where they can play and learn �, ��,� � � iii,-� ,��, 'd depend totally on anyone else." Be- In pediatric group practice for the than in the larger cities,which offer a s , ,: ' .. ;, „ ,. . sides learning self-reliance. Brendapast fiveyears on the Cape,Dr:Cillis ran a of established facilities. - a , P , g � r A Cillis has added much more knowl- is in the process of opening a solo With two health professionals in- t * edge to her store. office in Yarmouth.He's affiliated with volved, she coins a neW term for the11: , ; V, ', ,,._ ,, - , <' After graduation from college at Massachusetts General and Cape Cod hands-on experience atOktoberFarm: gin;.• : 4,4,” ,, ,,' , ,Skagic Valley in Washington, she Hospitals. It's called "barnyard pediatrics," she " • ;headed east to begin her career as a Besides serving as ring master to says. ;.,, kR 4 1 health professional in New York, a young people and the animals (she's If there's a Fridays child to wham `` ` � ' s place she swiftly learned to love."Ev- also teaching a polo course for boys), you think this kind of experience could • = erything is wonderful...and especially Brenda works in her profession at the bring love and pleasure,call Brenda at BRAD LYNCH PHOTO the food." Falmouth Hospital and the Rehabilita- 362-1562.She generally can find room BY THE BARN—Brenda Cillis and part of her team,including her two sons,surround Chico,the little red horse who, •While a respiratory therapist at Lion Hospital of the Cape and Islands for one more. though a native of the State of Washington,sports what some say looks like maps of Cape Cod on his flanks.From left Lenox Hill Hospital on the Upper East in East Sandwich. These are places are Philip Cillis,Megan Zimmerman,Brenda Cillis,Derek Cross,Stefano Cillis and Kendra Cross. Side,she worked with the chief pedi- where she learned about young people , atric resident Dr. Victor Cillis, a na- who are chronically ill or recovering z, ,. a:.__,— ._Y..__.___._.:�_ tive New Yorker who loves boats and from trauma and whom she has wel- ,,1 the sea."He has web feet,"she says. corned on Fridays at Oktober Farm. They learned about each other The environment that Brenda Cillis through shared concern for a little girl has fashioned out of her own expert- who was a patient and dying of AIDS. ence, knowledge and resources pro- Then there were courtship and mar- vides several ways for Friday's chil- f, riage. dren to find joy in living.Among them: In a health job,Brenda Cillis wasn't •By diversifying their sufferings, ' going to get rich in the city.Her looks children can grow beyond them. and personality landed modeling jobs, •They gain self-reliance and respon- 5 where an hour's work paid the same as sibility.Every one has a chore:'clean- a week's salary in the hospital. The ing stables and tack or feeding and s young woman from Washington state watering the animals,experiences that was modeling fashions by Oscar de la let children know that other beings Renta before she'd ever heard of the depend on them. . a famous designer.If today's standards •The children share memorable ex- for knock-outs in modeling were based periences that are part of the normal r 1.l • 4, 1 a? .9/ t4r4 AI.' • , G e l The &arlStabte �qatriot OCTOBER 16, 1997 PAGE 8 �.. `� �P LEGAL NOTICES LEGAL NOTICES LEGAL NOTICES ' • t ' LEGAL NOTICES TOWN OF BARNSTABLE TOWN OF BARNSTABLE MORTGAGEE'S SALE OF REAL ESTATE MORTGAGEES SALE OF REAL ESTATE CONSERVATION COMMISSION CONSERVATION COMMISSION . • NOTICE OF PUBLIC HEARING NOTICE OF PUBLIC HEARING 569 Old Falmouth Road By virtue and in execution of the Power of Sale contained in a certain Mortgage given by Bamstable(Marstons Mills) DELEVAN BARTHOLOMEW and PATRICIA BARTHOLOMEW to BANK OF NEW EN- Acting under the provisions of General Law Acting under the provisions of General Law By virtue and in execution of the Power of Sale contained in a certain mortgaged given by GLAND N.A.,dated March 29,1985,and filed with Bamstable county Registry District of Chapter 131, Section 40, and Chapter 3, Chapter 131, Section 40, and Chapter 3, David L.Rebello and Lisa M.Rebello to First Union Mortgage Corporation dated March 3, the Land Court as Document No.358796 as noted on Certificate of Title No. 100753 of Article XXVII of the general Town of Barn- Article XXVII of the general Town of Barn- 1994 and recorded with Bamstable County Registry of Deeds,at Book 9077.Page 230 of which Mortgage the undersigned is the present Holder by Assignment dated September 17. stable Ordinances,the Conservation Corn- stable Ordinances,the Conservation Corn- which mortgage the undersigned is the present holder for breach of the conditions of said 1996 and filed with said Registry District of the Land Court as Document No.676531,for mission will make a Determination of Appli- mission will make a Determination of Appli- mortgage,and for the purpose of foreclosing the same will be sold at Public Auction on the breach of the conditions in said Mortgage contained and for the purpose of foreclosure,the cability on the application of Susan and Greg cability on the application of School Street mortgaged premises hereinafter described namely - same will be sold at Public Auction on November 6, 1997 at 1:00 PM upon the mortgaged Fox,'17 Sunset Lane,Bamstable,MA02630 Realty Nominee Trust,340 School St.,Co- 569 Old Falmouth Road premises located at 35 Menemsha Lane a/k/a 35 Menemsha Road,Centerville,Massachu- (to construct a single family dwelling,install tuit, MA.to construct a house entirely out- Barnstable(Marstons Mills) . setts,all and singular the real estate described in said Mortgage as follows: septic system,well and utilities)at Map 351 side the 100'buffer zone to wetlands,Map Bamstable County,Massachusetts,on November 18,1997 at 12:00 Noon all and singular NORTHERLY:by the line of Menemsha Lane,one hundred twenty and 47/100(120.47) Parcel 65,4400 Main St.,Bamstable. The 20 Parcel 58-2. The Determination will be premises described in said mortgage as follows: feet;EASTERLY:by a portion of land now or formerly of Charles J.Meyer,one hundred Determination will be considered at the Con- considered at the Conservation Commis- The land,togetherwith any buildings thereon,located at 569 Old Falmouth Road,Bamstable thirty-one and 62/100(131.62)feet;SOUTHERLY:bya portion of Lot 27,one hundred forty servation Commission Meeting on Tuesday, sion Meeting on Tuesday,October28,1997 (Marstons Mills),Bamstable County,Massachusetts bounded and described as follows: three and 91/100(143.91)feet;and WESTERLY:by Lot 28 one hundred twenty-three and October28,1997 at 6:30 P.M.in the Hearing at 6:30 P.M. in the Hearing Room at Town NORTHEASTERLY by land now or formerly of Arata, there measuring three 31/100(123.31)feet. Room at Town Hall,367 Main St.,Hyannis. Hall, 367 Main St., Hyannis. A plan of the hundred forty and 00/100(340.00)feet,more or less; All of the said boundaries are determined by the Court to be located as shown on A plan of the proposed project,DA-97086, proposed project is on file with the Conser- SOUTHEASTERLY by land now or formerly of Heman, there measuring one Subdivision Plan 32898-B(Sheet 2)dated August 9. 1967.drawn by Thomas E.Kelley. is on file with the Conservation Commission. vation Commission. hundred fifty and 00/100(150.00)feet; Surveyor, and filed in the Land Registration Office at Boston,a copy of which is filed in SOUTHWESTERLY by land now,or formerly of Edna M. Macomber there Bamstable county Registry of Deeds in Land Registration Book 292, Page 58, with measuring three hundred forty and 00/100(340.00)feet; Certificate of Title No.37168,and the premises are shown thereon as Lot 29. and There is appurtenant to the premises a right of way over Way"A"and Way"B":as shown Dr.Eric Strauss,Chairman Dr.Eric Strauss,Chairman, NORTHWESTERLY by Old Falmouth Road,there measuring one hundred fifty on said plan in common with all those lawfully entitled thereto as set forth in a stipulation and 00/100(150.00)feet. ' between Charles J.Meyer and Leo A.Childs.Jr.,et al.filed with the papers in Land Court The Bamstable Patriot • The Bamstable Patnot Subject to and to therwith the benefit of easements,rights,rights of way,restrictions and Case No.24654,and registered as Document No.54,421,Bamstable Registry District; October 16, 1997 October 16, 1997 , and there is appurtenant to the premises a right of way over lanes shown on the plan in reservations of record insofar as the same are in full force and applicable, and more particularly as set forth in a deed from Edna M.Macomber to Andrew F.Macomber recorded common with all others entitled thereto. in Bamstable County Registry of Deeds. The premises are subject to the reservations set forth in Documents No.148,470,and No. TOWN OF BARNSTABLE Said premises will be sold subject to any and all unpaid taxes,assessments,betterments and 134,765 insofar as the same are now in force and of effect.The premises are also subject CONSERVATION COMMISSION TOWN OF BARNSTABLE municipal liens,if any there be. to easements andrights granted to the Cape&Vineyard Electric Company et al,as set forth NOTICE OF PUBLIC HEARING CONSERVATION COMMISSION in Document No.124,230.and to the Centerville-Osterville Water District in Document No. Terms:Five Thousand and 00/100($5,000.00)Dollars in cash or certified check at the time NOTICE OF PUBLIC HEARING and place of sale,balance to be paid at the office of ADELSON,GOLDEN&LORIA,P.C., 123,550,all insofar as the same are now in force and of effect. Acting under the provisions of General Law Attorneys for For Mortgagor's title to the premises,refer to the deed of Robert F.Sullivan and Marie B. Chapter 131, Section 40, and Chapter 3, Acting under the provisions of General Law First Union Mortgage Corporation Tripp,filed herewith as Document No.[sic 358795]and Certificate of Title No.[sic 100753]. Article XXVII of the general Town of Barn- Chapter 131, Section 40, and Chapter 3, TWO CENTER PLAZA, SUITE 500, BOSTON, MASSACHUSETTS 02108, within thirty Said premises will be sold subject to and/or with the benefit of any and all restrictions, stable Ordinances,the Conservation Corn- Article XXVII of the general Town of Barn- days of the sale.Other terms,if any to be announced at the sale. easements,improvements,covenants,unpaid taxes,outstanding tax titles,municipal liens mission will make a Determination of Appli- stable Ordinances,the Conservation Corn- and assessments,or claims in the nature of liens,and existing encumbrances of record,if cability on the application of Prince Cove mission will hold a public hearing on the any,which take precedence over the said Mortgage described above. Realty Trust, James Mitchel, Trustee, 20 application of Mary M. Ragosa, 277 West First Union Mortgage Corporation TERMS OF SALE:FIVE THOUSAND AND 00/100($5,000.00)DOLLARS will be required West Emerson St.,Melrose,MA 02176(to Bay Road,Osterville,MA(to construct addi- Present holder of said mortgage to be paid in cash,certified check,bank treasurer's check or cashier's check at the time and construct second story addition over exist- tion to existing single family dwelling,recon- , By its Attorneys place of the sale by the purchaser and the balance of the purchase price shall be paid in cash, ing building)at Map 75 Parcel 4,282 Baxter struct patio, landscape and, if necessary. ADELSON,GOLDEN&LORIA,P.C. certified check,bank treasurer's check or cashier's check within thirty(30)days after the ' ` Neck Rd.,Marstons Mills. The Determina- upgrade septic system)at Map 116.Parcel TWO CENTER PLAZA,SUITE 500° date of sale and shall be deposited in escrow with the Law Office of Patricia M.Trainor,185 '.. ill be considered at the Conservati•" • -•• - eld BOSTON,MASSACHUSETTS 02108 Devonshire Street,Boston,Massachusetts.The deed shall be delivered upon receipt of the ' -• .verse Real Estate,Inc.,Mass.Lic.No. 105 balance of the purchase price. if Other terms to be announced at the sale. MASSACHUSETTS HOUSING FINANCE AGENCY Present Holder of said Mortgage by Its Attorney Patricia M.Trainor Attorney at Law 185 Devonshire Street,Suite 400 Boston,MA 02110 (617)423-9016 tts The Bamstable Patriot October 9,October 16 and October 23. 1997 of MORTGAGEE'S SALE OF REAL ESTATE t) By virtue and in execution of the Power of Sale contained in a certain mortgage given by rt RONALD J. POMYKALA to THE MONEY STORE/MASSACHUSETTS,INC.dated June d 30, 1994 recorded at the Barnstable County Registry of Deeds at Book 9270 Page 115 of :t which mortgage the undersigned is the present holder(pursuant to assignment dated June 30, 1994 recorded at Book 9370 Page 235 at said Registry),for breach of the conditions ' of cairl m.,rf..n..m ar.rf f.,r film r,,,r,,non of fnrmrincinn thA Rama. the mortaaaed premises